introduction the age of human rightsthe age of human rightsthe age of human rightsthe age of human rights journal introduction it is a great pleasure to present the first issue of the the age of human rights journal, and to do so just on the international day of human rights. this new journal is aimed at the dissemination of all types of studies, essays and comments concerning human rights from different approaches and fields of knowledge, such as jurisprudence, philosophy of law, constitutional law, political philosophy and other legal or philosophical disciplines. we intend that, from the very first issue, the journal will set an international benchmark in the field of human rights, and will become a meeting place for the discussion of the major challenges rights are facing today. in order to meet such an aim, we have the support and advice of a distinguished scientific board, consisting of scholars as relevant as robert alexy, joana abrisketa, kai ambos, reiner arnold, fareda banda, martha n. bello albarracin, emmanuel decaux, elias diaz, sakiko fukuda-parr, todd landman, massimo la torre, mario losano, javier de lucas, susan millns, felipe morente, ramon paniagua, antonio e. luño perez, philip pettit, michel rosenfeld, and richard wilson. this journal is edited in the framework of the research program “the age of rights”, composed of about one hundred researchers belonging to some of the most important human rights research groups, who aim to analyse integrally the reality of human rights in contemporary societies by identifying the main challenges and problems they face today, or may face in the future, and to propose possible solutions leading to the establishment of an international rule of law. our aim, in short, is to contribute, through scientific reflection, to make the 21st century, eventually, the age of rights. finally, we would like to make this journal a tribute to one of the leading researchers and proponents of human rights in spain, internationally recognized, and founder of the research program, dr. gregorio peces-barba. dr. ramón ruiz ruiz editor the legal recognition of the human rights situation of women with disabilities in the state of qatar1 maría laura serra2 maría del carmen barranco avilés3 patricia cuenca gómez4 rafael de asís roig5 pablo rodríguez del pozo6 abstract: from the continental law, this paper analyses the situation regarding the rights and fundamental freedoms of women with disabilities in qatar. the analysis uses as the main reference, article 6 of the convention on the rights of persons with disabilities (crpd) and the general comment that the crpd committee has made to this article. in this aspect, it tries to outline the difficulties that qatar, as a state party, has in order to be able and take the very first steps towards a real inclusion for women with disabilities. keywords: women with disabilities, qatar, article 6 crpd, equality and non-discirmination. summary: i. introduction; ii. the concept of disability and the right to equality in qatar: relationships between the domestic and the international human rights system; ii.1 disability; ii.2 equality and non-discrimination; iii. the omission of women with disabilities in qatar; iv. article 6 and its relationship with qatar’s domestic legal system; v. how can qatar implement these measures on the basis of its domestic and international legal system? i. introduction the guarantee of protection and the promotion of human rights is applied in a less comprehensive way with regards to women and girls with disabilities than for other social groups, even those in vulnerable situations. their status as women combined with the concept of their disability gives rise to certain prejudices and stereotypes that, in a 1 this publication was made possible by the nprp award nprp-7-380-5-051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors. 2 universidad carlos iii de madrid, spain (marialaura.serra@nuigalway.ie). 3 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 4 universidad carlos iii de madrid, spain (patricia.cuenca@uc3m.es). 5 universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). 6 weill cornell medical college in qatar, qatar (prd2002@qatar-med.cornell.edu). the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 105 m. laura serra, m. c. barranco avilés, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo discriminatory context, can result in a lack of protection of their human rights and fundamental freedoms, that is to say inequality of opportunities in both the public and private spaces. the ministerial declaration of july 2010 of the economic and social council (ecosoc) recognizes disability as a cross-cutting issue essential for the attainment of the mdgs, emphasizing the need to ensure that women and girls with disabilities are not subject to multiple or aggravated forms of discrimination, or excluded from participation in the implementation of the mdgs. also, the 2030 agenda for sustainable development provides the global community with an opportunity to work towards achieving the sustainable development goals (sdgs) for all women and girls, and address the rights and demands of women with disabilities as a matter of priority. the convention on the rights of persons with disabilities (crpd) uses a twintrack approach with regards to the protection of human rights for certain social groups in vulnerable situations, such as children (article 7) and women (article 6), but it also refers to all persons with disabilities facing situations of risk, including armed conflict, humanitarian emergencies, and natural disasters (article 11). this twin-track approach aims at guaranteeing human rights for all persons, thereby giving visibility to their situation as in the case of women with disabilities. article 6 of the crpd recognizes that women with disabilities are subject to multiple forms of discrimination. hence, the crpd is the first and only human rights treaty with an explicit reference to multiple discrimination against women and girls with disabilities. in this regard, article 6 states that states parties to the crpd –including qatar– shall “take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present convention”. article 6 is based on certain principles established in the crpd (article 3), which provide guidelines for the interpretation and implementation of the convention, including article 6 thereof. likewise, the rights and freedoms of persons with disabilities included in the crpd, as well as the obligations of the states parties, arise from these principles. article 6’ text represents the basis of a mandate imposed to the states parties concerning the adoption of measures to ensure all human rights and fundamental freedoms for women and girls with disabilities, but such mandate stems from the acknowledgement that women and girls with disabilities face multiple forms of discrimination. the inclusion of an article on women with disabilities in the crpd was deemed necessary to provide visibility: the fact that women and girls with disabilities face discrimination becomes only visible when addressed in a specific provision. however, article 6 also works in a mainstream manner, aligning with gender-sensitive considerations in some other articles of the convention, particularly in fields such as health, violence, family rights, and participation in public life, among others (arnade the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 106 the legal recognition of the human rights situation of women with disabilities in the state of qatar and häfner, 2005). the general comment no. 3 of the crpd committee states that this provision is a response to the lack of recognition of the rights of women and girls with disabilities. through an assessment of qatar’s legal framework, this paper addresses the legal situation of women with disabilities by using article 6 of the crpd as a reference. the analysis has a general scope, including a review of domestic legislation on the promotion and protection of rights of women with disabilities. regardless of the geopolitical context, addressing the issue of women with disabilities entails research into equality and non-discrimination, understood not just as a principle but also as a right. the analysis is on civil and political rights as also economic, social, and cultural rights. at the regional level, qatar has ratified the arab charter on human rights which enshrines the right to equality and non-discrimination before the law (article 11), the right to recognition as a person before the law (article 22); and equality before the courts and tribunals (article 12), among other rights. qatar is an arab country, in which a traditionally muslim society coexists with groups of expatriates from different regions, mostly from india and the philippines, who adhere to different religions. qatar has a dual legal system. hence, since its independence (in 1971) from the british empire, a large part of its jurisdiction has been governed by continental law (the adlia court)7 and the sharia law applies to several areas in which women, when viewed as subjects of rights, are considered to be below men. although, the new constitution of 2005 is slightly hints a more liberal society within the context of the arab region, “sharia law is recognized in the constitution as the principal source of legislation (article 1)”8. in this regard, amnesty international (2016, p.300) on its annual report on the state of the world’s human rights stated that “women in qatar face discrimination in law and in practice, and are inadequately protected against violence within the family”. this paper is built on a theoretical basis, but it cannot be denied that it has been written from a western perspective. in any case, its purpose is to describe and identify the legal situation of women with disabilities in qatar according to the continental law of qatar and the human rights treaties that it has ratified. hence, the work is divided into two parts: the first addresses how disability is tackled in qatar, as well as the right to equality and non-discrimination. the second analyzes both paragraphs of article 6 of the crpd in more detail with relation to qatar’s legislative framework, in order to identify both legal gaps in qatar’s continental law in relation to the crpd and potential improvements. the right to equality is a fundamental principle designed to protect human rights and it is essential for the exercise of other human rights. in addition to the crpd, the 7 for further information on qatar’s legal dualism, see, for instance, hamzeh (1994). 8 a/hrc/29/26/add.1, para. 9. the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 107 m. laura serra, m. c. barranco avilés, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo universal declaration of human rights, the international covenant on civil and political rights, the international covenant on economic, social and cultural rights, the convention on the rights of the child (crc), the international convention on the elimination of all forms of racial discrimination (cerd) and the convention on the elimination of all forms of discrimination against women (cedaw) specify and guarantee the right to equality, thus shaping part of the applicable legal framework – within the international human rights system– with regard to equality and nondiscrimination for women with disabilities. of the aforementioned treaties, qatar has only ratified the cedaw (without having signed nor ratified its protocol) and the crpd (having signed but not ratified its protocol). it has also ratified the cerd, the crc (and two of its protocols), and the convention against torture and other cruel, inhuman or degrading treatment or punishment (the united nations convention against torture). it is important to emphasize that discrimination is often enshrined in law, as well as in practice. however, qatar’s legal reality makes it slightly more complicated to talk about equality and non-discrimination in practice for women with disabilities in qatar, since the economic and social council (ecosoc) committee –not ratified by qatar– has conceptualized equality and non-discrimination in practice mainly through general considerations. this is all the more relevant regarding women and girls with disabilities, who have a long history of facing discrimination and oppression9. the fact that the cedaw protocol has not been ratified further hinders the protection and promotion of the rights of women (with and without disabilities), since the optional protocol to the cedaw establishes, among other things, cedaw’s own complaints and investigation procedures through its committee. also, according to facio and obando (2004, pp.1516) ratifying the protocol “would promote a more effective implementation of the cedaw through a wider interpretation and actual application of the convention […], it could also raise public awareness on the international guarantees regarding women’s human rights, as well as drawing attention to the cedaw […]”. it is worth noting that qatar is not the only state –others include western countries– that have not ratified certain human rights treaties and/or their optional protocols. however, the problem in qatar is more acute due to the combination of this lack of ratification and the country’s domestic legislation, which lacks an integrated gender approach to disability, and where disability is conceived from a perspective somewhat removed from that endorsed by human rights. 9 in this regard, general comment no. 20 of the un committee on economic, social and cultural rights (2009) highlights the fact that merely addressing formal discrimination will not ensure substantive equality. this committee emphasizes that eliminating discrimination in practice requires paying sufficient attention to groups of individuals that suffer historical or persistent prejudice. the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 108 the legal recognition of the human rights situation of women with disabilities in the state of qatar ii. the concept of disability and the right to equality in qatar: relationships between the domestic and the international human rights system ii.1 disability the crpd does not define disability as such, but according to its first article, persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. in that same provision, the crpd states its purpose, which is to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. one of the major problems with qatar’s continental law concerning persons with disabilities is structural, as reflected in its conceptual basis. on the one hand, and in spite of the efforts and money invested by the state for persons with disabilities (including the national health and development strategy, the shafallah center, and the development of high-technology educational institutions for persons with sensory impairments, generally leaning towards the promotion of services rather than rights), the underlying rationale is (albeit not completely) based on a medical/rehabilitative model instead of the social model of disability. in general terms, the medical model refers to disability as a condition of the person. this model assumes that the person with disabilities must adapt to the environment rather than the other way around. the social model of disability, in contrast, considers disability to be a social construct. under this model, disability is defined as a person’s situation because of their environment and not a condition of the individual. the social model of disability is clearly reflected in article 1 of the crpd and the rest of its provisions, and has inspired the negotiation and subsequent signing of the convention, which, as a human rights treaty, has shaped a model of human rights that accord with this social model. among the legal instruments illustrating that qatar predominantly follows the medical/rehabilitative model are the qatari civil code and the constitution. whether it is guided by a protective purpose, or simply because it advocates substituted decisionmaking and thereby restricts the legal capacity of persons with disabilities (in breach of article 12 of the crpd), the qatari civil code denies access to justice for persons with disabilities (as referred to in article 13 of the crpd). for instance, articles 71, 81, 87, 157, 161, 372, or 458, among others, as well as the national constitution, equate disability with inability (articles 15 and 101). moreover, law no. 25 of 2001 – mandatory education 25/2001–, clearly addresses disability only from a medical perspective (article 8). the same can be said of law no. 23 of 2004 –regarding promulgation of the code of criminal procedure 23/2004– where a substitutive model prevails, thus denying access to justice for persons with disabilities, particularly those with mental disabilities, according to the law (article 5), referring to the protection of the person instead of their recognition as legal subjects (article 20). section 7 of this the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 109 m. laura serra, m. c. barranco avilés, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo law, on judicial rulings, is based on the medical model, identifying disability as a feature of the person. it also provides for a disability test. notwithstanding this legal framework, qatar is only amongst the average of the rest of states when measuring the extent to which it follows the medical/rehabilitative model in its domestic legislation. in many societies (including those that have ratified the crpd and have carried out reforms along the lines it advocates) this model often overlaps with the social model. sometimes, even certain features of a segregate model remain. this does not justify the fact that qatar, as a state party, has not updated its legislation in the light of the crpd, but illustrates a legal-political mental framework that hampers and slows down the process, showing that continental law progresses at an even slower pace for women and girls with disabilities in an arab country. ii.2 equality and non-discrimination any intended or unintended action or omission by a person or a group of persons that has the purpose or effect of impairing the dignity of another person or group of persons may be considered discrimination. equality does not lie in the description of a person, since we all have unique characteristics that distinguish us from one another; equality refers to a legal concept. we are all equal before the law. equality can be understood both as a normative and a tangible concept. thus, there is a formal equality –an equality that is expressed before the law– and a substantive equality, according to which the state should promote certain conditions in order to achieve a real equality that materializes in the daily life of every person. substantive equality requires a greater effort than simply amending the law. eliminating formal discrimination requires ensuring that a state’s constitution, laws, and policy documents do not discriminate on prohibited grounds. addressing formal discrimination alone will not ensure substantive equality. eliminating discrimination in practice requires paying sufficient attention to those groups of individuals that suffer historical or persistent prejudice, instead of merely comparing the formal treatment of individuals in similar situations. states parties must therefore immediately adopt the necessary measures to prevent, diminish, and eliminate the conditions and attitudes that cause or perpetuate substantive or de facto discrimination10. putting an end to the violation of the rights of women and girls with disabilities is not only necessary to achieve a formal equality but is important and crucial to achieve substantive equality. iii. women with disabilities in qatar in the concluding observations from the crpd committee on the initial report presented by the state of qatar, the committee shows “concerned about the multiple forms of discrimination that women and girls with disabilities experience. it is 10 see the convention on the elimination of all forms of discrimination against women (cedaw). the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 110 the legal recognition of the human rights situation of women with disabilities in the state of qatar concerned about the overall lack of information on the social, economic and political situation of women and girls with disabilities, and on the limited participation of women with disabilities in making decisions affecting them in general. it is also concerned that measures to mainstream the rights and needs of women and girls with disabilities in strategies have not been implemented”. women in qatar are disregarded in their legal situation and equality of opportunities. this disregard is based on certain stereotypes, as explained by cook and cusack (2010, p.9), a general understandig or preconception of women’s features, or the assumption of certain roles that should be adopted by the members of a group, in this case women and girls with disabilities. it is a situation of disregard because qatar’s domestic legal system is built upon a stereotype of persons with disabilities as being a homogeneous group without sex and/or gender differences. qatar’s legislation evinces this by ignoring women with disabilities, despite the above-mentioned concept of disability. for instance, law no. 2/2004, in respect of persons with special needs, enshrines the principles of equality and non-discrimination –article 2 establishes that “special needs persons shall enjoy the […] rights in addition to any applicable rights under any other relevant legislation”– but it does not provide any cross-cutting strategy to take into account the rights and needs of women and girls with disabilities (particularly with regard to special education). furthermore, it is easy to identify that the qatari legal system disregards women with disabilities when one examines law regarding sexual offences; in this case, the stereotype only affects women with disabilities, who are perceived as non-sexual women. for example, article 280 of the criminal code, on adultery and crimes of honour, establishes that “whoever copulates with a female without compulsion, duress or ruse knowing that she is of diminished capacity or under sixteen years of age shall be punished with life imprisonment.” this provision clearly reflects a general perception of women with disabilities as being asexual persons, since sexual intercourse with them is considered a crime even in the absence of coercion. these protective stereotypes are in line with the understanding of disability as being a condition of the person, enshrined in qatar’s legal system and following a medical/rehabilitative model of disability that is charitable in nature. such stereotypes, by appealing to paternalistic interests, prevent consideration of the needs of those who are being stereotyped, as well as their capacities and wishes. this can also result in barriers to information for women and girls with disabilities, since they are not only discriminated against, but are also subject to a lack of control over their own bodies and sexual desires and acknowledgement of their sexual and reproductive needs. this leads us to look at article 6 of the crpd to try to see how qatar could address equal opportunities for women with disabilities from a human rights perspective. the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 111 m. laura serra, m. c. barranco avilés, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo iv. article 6 and its relationship with qatar’s domestic legal system article 6 is based on the recognition that women with disabilities are subject to discrimination in states parties that have endorsed the crpd. what should be understood by “discrimination” and what types of discrimination are referred to by this provision? as noted above, discrimination is any action or omission that has the purpose or effect of impairing the inherent dignity of another person/legal subject. qatar has ratified the cerd and the cedaw. both human rights treaties define discrimination as any distinction, exclusion, restriction, or preference that has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life. the qatari constitution acknowledges that persons are equal before the law, and prohibits discrimination on the basis of sex, race, language, or religion (article 35). under this perspective, the national constitution of qatar does not provide a definition of discrimination, and it fails to include disability or gender as potential grounds for discrimination. it is true that both the cedaw and the crpd were ratified after the qatari constitutional reform, but the constituent powers did not anticipate this by leaving an open clause that could have allowed for a different interpretation. it is, on the contrary, a closed clause. however, the legal situation of women with disabilities, with regards to equality and non-discrimination, could be safeguarded if the crpd is taken into consideration. on the one hand, the definition of discrimination is incomplete in the framework of the international legal system in which qatar participates (since it is the human rights committee, as the competent body designated by the international covenant on civil and political rights, that is in charge of analyzing this concept in depth11, and qatar has neither signed nor ratified this covenant); but on the other hand, in addition to the definition established in the cedaw and the cerd, qatar, as state party to the crpd can also refer to the definition provided in article 2 of the crpd on discrimination on the basis of disability. this definition is wider than just being based upon the condition of the person. the definition of discrimination established in the crpd raises the issue of the social construction of disability. disability is not defined as the being the result of any “impairments” (the word used by the crpd to refer to the individual condition of a person regardless of his/her social context), but it could potentially affect persons without “impairments” who are discriminated against for their relationship with a person with disabilities12 or because they themselves appear to have a disability. this broader sense of the grounds for discrimination is relevant, differing from the other conventions mentioned above. both the cerd and the cedaw define discrimination 11 see, for instance the general comment no. 18 of the human rights committee. 12 see quinn (2009, p.102). the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 112 the legal recognition of the human rights situation of women with disabilities in the state of qatar on the basis of a specific ground. the crpd goes a step further by adding “discrimination on the basis of disability”. the starting-point of article 6 is therefore the fact that women with disabilities face discrimination. considering the concept of discrimination defined in both the cedaw and the crpd (in the latter case, discrimination on the basis of disability), it must be highlighted that article 6(1) refers to multiple discrimination. general comment no. 3 of the committee on the rights of persons with disabilities defines multiple discrimination as a situation in which a person experiences discrimination on two or more grounds, leading to discrimination that is compounded or aggravated. it then provides a non-comprehensive list of grounds for discrimination: age, disability, ethnic, indigenous, national or social origin, gender identity, political or other opinion, race, refugee, migrant or asylum seeker status, religion, sex and sexual orientation. hence, multiple discrimination can be described as a situation where a person is discriminated against on two or more grounds, which then accumulate and overlap. through this statement, the crpd requires states parties to take measures against discrimination not only with regard to disability, but also with regard to gender and other identities such as age (article 7). the second paragraph of article 6 refers to the measures to be taken by the states parties to ensure the full development, advancement, and empowerment of women with disabilities, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the convention. it is difficult to determine the nature of these measures if such development, advancement, and empowerment are to be not only economic, but also human and social, as can be deduced from a holistic reading of the crpd. that is the understanding of the committee in its general comment no. 3, when it states that although development relates to economic growth and the eradication of poverty, it is not limited to those areas. it also provides that while gender and disability-sensitive development measures in the areas of education, employment, income-generation, and combating violence may be appropriate to ensure the full economic empowerment of women with disabilities, additional measures are necessary with regards to health and participation in politics, culture and sports. v. how can qatar implement these measures on the basis of its domestic and international legal system? the crpd recognizes that women and girls with disability face different forms of discrimination, which means that qatar is not the only state that should devise a direct and indirect action plan to ensure equality of human rights and fundamental freedoms for women with disabilities. the special rapporteur on the rights of persons with disabilities makes it clear that discrimination against women (and girls) with disabilities is enshrined in law and in the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 113 m. laura serra, m. c. barranco avilés, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo practice13. in her report to the general assembly14, she establishes that women and girls with disabilities face many difficulties in accessing adequate housing, health care, education, vocational training, and employment, and are more likely to be institutionalized and experience poverty. also, she says that women with disabilities are often excluded from the labour market. consequently, the development, advancement, and empowerment measures to be undertaken by qatar as a state party to the crpd on the basis of article 6(2) must take into account both formal and substantive equality, and the latter should not remain as an abstract concept. in this regard, equality can be assessed through measures designed to encourage the development, advancement, and empowerment of women with disabilities in qatar. in its general comment no. 3, the crpd committee establishes that in order to advance and empower women with disabilities, measures must go beyond development and also aim to improve the situation of women with disabilities throughout their lifespan. it is not enough to take women with disabilities into account when designing development measures; rather, women with disabilities must also [have the tools that allow them to] be able to participate in and contribute to society. at the same time, the human rights-based approach of the general comment no. 3 of the crpd committee provides that ensuring the empowerment of women with disabilities means promoting their participation in public decision-making. ultimately, the second paragraph of article 6 of the crpd is a guarantee for women with disabilities to enjoy substantive equality of rights. the aim of this provision is for states parties to take appropriate measures to ensure the full development, advancement, and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms set out in the crpd, and that is what qatar should seek. it would be important for qatar, as a state party to the crpd, to set up one or several independent mechanisms within its domestic legal system to promote, protect, and monitor the implementation of equal rights and opportunities for women with disabilities. however, an important first step is to gather the relevant information, particularly from the civil movement where women are in a significant hierarchical position. also, it is important to gather statistical data (consistent and comparable statistics, disaggregated by gender) and specific information in order to eliminate all types of discrimination now faced by women and girls with disabilities in all areas. 13 see un doc. a/hrc/28/58. 14 see un doc. a/70/297. the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 114 the legal recognition of the human rights situation of women with disabilities in the state of qatar references amnesty international (2016). amnesty international report 2015/16: the state of the world’s human rights. london: amnesty international. arnade, s. and häfner, s. (2005). draft. towards visibility of women with disabilities in the un convention. a discussion paper on the integration of women’s issues in the “comprehensive and integral international convention on the protection of the rights and dignity of persons with disabilities”. berlin: disabled peoples’ international. cook, r. j. and cusack, s. (2010). gender stereotyping: transitional legal perspectives. pennsylvania: university of pennsylvania press. facio, a. and obando, a. e. (2004). ‘introducción sobre el proceso de elaboración del protocolo facultativo de la convención sobre la eliminación de todas las formas de discriminación contra la mujer’ in torres, i. (ed.) convención cedaw y protocolo facultativo. convención sobre la eliminación de todas las formas de discriminación contra la mujer, 2nd ed. san josé: instituto interamericano de derechos humanos, pp. 15–33. hamzeh, a. (1994). qatar: the duality of the legal system. middle eastern studies, 30(1), pp.79–90. https://doi.org/10.1080/00263209408700984 quinn, g. (2009). ‘a short guide to the united nations convention on the rights of persons with disabilities’ in quinn, g. and waddington, l. (eds.) european yearbook of disability law. anwerp: intersentia, pp. 89–114. the age of human rights journal, 9 (december 2017) pp. 105-115 issn: 2340-9592 doi: 10.17561/tahrj.n9.5 115 https://doi.org/10.1080/00263209408700984 the legal recognition of the human rights situation of women with disabilities in the state of qatar0f i. introduction ii. the concept of disability and the right to equality in qatar: relationships between the domestic and the international human rights system ii.1 disability ii.2 equality and non-discrimination iii. women with disabilities in qatar iv. article 6 and its relationship with qatar’s domestic legal system and do not just sit by goodwill, humanity or justice, but by necessity, the need to meet the immensity of his desires the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 81 bentham was right. was he? josé j. jiménez sánchez 1 abstract: the importance that the majority principle occupies in bentham’s theory reveals how it was in tune with what others thought about this principle. i will discuss only the role that this principle holds in kelsen. for him, the majority principle is central to his articulation of the legal-political order and will have an essential place within the state in shaping the rules of the normative will of the state. the same will not occur with the act of foundation, in which the majority will be relegated by the requirement for unanimity. the difficulty of the problem does not lie in the recognition of the importance of the role that the majority principle occupies but in the way that it is justified. the major differences appear in terms of its legitimacy. this will eventually lead us to ask whether bentham was right or not in his approach to the majority principle. keywords: general will; civil society; democracy and rule of majority. summary: i. introduction; ii. bentham was right; iii. kelsen after bentham; iv. conclusion: was bentham right? i. introduction “[the] great earl of warwick dined at his table in his different manors in the country about 30.000 persons every day in the year, of his dependants” 2 . and he did it not just for goodwill, humanity or justice, but by necessity, the need to satisfy the immensity of his desires. thus it was his luxury and whim which enabled his dependents to get what is necessary for life. this allows us to describe the earl of warwick’s behavior as both selfish and wilful, while at the same time the result of his conduct could be considered as reasonable, to the extent that his selfishness implies that those who not only have to satisfy their whims, but to go on being able to do so, will have access to the necessary means to ensure their survival. so the fruit of the property of the lord cannot be solely in his hands, but must be shared among all and moreover, according to adam smith, on a relatively equal basis, for those who have more cannot consume much more than those who have nothing. adam smith expressed it most clearly when asserting: “the produce of the soil maintains at all times nearly that number of inhabitants which it is capable of maintaining. the rich only select from 1 department of philosophy of law, university of granada, spain (jimenezs@ugr.es). 2 a. smith, lectures on jurisprudence, 1762-3, pos. 982. bentham was right. was he? the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 82 the heap what is most precious and agreeable. they consume little more than the poor, and in spite of their natural selfishness and rapacity, though they mean only their own conveniency, though the sole end which they propose from the labours of all the thousands whom they employ, be the gratification of their own vain and insatiable desires, they divide with the poor the produce of all their improvements. they are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species. when providence divided the earth among a few lordly masters, it neither forgot nor abandoned those who seemed to have been left out in the partition” 3 . therefore we have to qualify as rational what at first sight would have to be characterized as irrational, greed, desire and whim, on finding that they produce a reasonable effect. thus, the satisfaction of luxury and caprice, that is, the very convenience of the rich, is rational, in so far as it satisfies their desires, and yet, at the same time it creates a benevolent effectthe reasonablefor those who satisfy those desires. this is what explains the distribution of the necessities of life among all the inhabitants of the earth and consequently, the promotion of the general interest, the interest of society. according to smith there is an invisible hand-providence-that ensures social order. that invisible hand is so because in the need to satisfy the whim, at the same time public interest is ensured. it seems clear that adam smith's attempt to explain the social order has something to do with other attempts contemporary to his own work, although the matrix of the former is just the opposite of the preeminence of the individual against the universal, the particular will, capricious and selfish, compared to the general will, as the central and essential element by which human action has to be understood and legitimized. i refer especially to rousseau’s proposal that has a different character, mainly because he cannot admit smith’s play between the rational and reasonable insofar as he holds that rationality can only be found under the direction of the general will, by which the particular will has to be ordered. desire and whim respond only to a selfish will, and as such irrational will. from here it is well understood that the path laid out by rousseau is radically different from smith’s. rousseau establishes, in principle, the general will on a unanimous agreement, although later and given the problems that the appeal to such unanimity causes, he deemed the agreement of many to be sufficient. with this he would have no other remedy but to admit the will of all as the addition and subtraction of individual wills, that is, he had to rely on the particular will to institutionalize the foundational will of the social order. this does not mean that the individual will was not also in unanimity, although its emergence was seen even more clearly when considering the will of the many. however, problems arising from the infiltration of contingency implicit in the individual will, in the grounding of the general will, are corrected to the extent that its 3 a. smith, the theory of moral sentiments, digireads.com book, 2010 (1759, 1790), pp. 127-128. josé j. jiménez sánchez the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 83 institutionalization demands “for all the votes to be counted. any formal exclusion is a breach of generality” 4 . at the same time, production of the general will is settled on three conditions, which are those which, in turn, give legitimacy and justify the act of “total alienation [aliénation] of each associate together with all of his rights to the entire community” 5 . these conditions are what the social order has to achieve, first, the protection of life and possessions of all associates; second, that in this association each of its members shall obey nobody but himself, and finally all will remain as free as they were in the previous situation, ie, when they had their natural freedom. this is what we should properly understand as the meaning of that alienation of which the act of association consists, since “it is so false that there is, in the social contract, any genuine renunciation on the part of private individuals that their situation, as a result of this contract, is really preferable to what it was beforehand; and, instead of an alienation, they have merely made an advantageous exchange of an uncertain and precarious mode of existence for another that is better and surer. natural independence is exchanged for liberty; the power to harm others is exchanged for their own security; and their force, which others could overcome, for a right that the social union renders invincible” 6 . thus, rousseau thought of the social order as a social contract articulated around the general will, in which the individual will has its own space assured in the law. therefore, it cannot depend on the individuality, but has to do it from that same general will, which is typical of a people’s assembly in order to give itself the law: “when a law is proposed in the people’s assembly, what is asked of them is not, to be precise, whether they approve or reject the proposition, but whether or not it conforms to the general will that is theirs. each man, in 4 j. j. rousseau, on the social contract, in id., basic political writings, second edition, trans. and ed. by d. a. cress, int. and new annotation by d. wootton, hackett pub. comp., indianapolis, cambridge, 2011 (1762), p. 171, fn. 36. 5 rousseau, on the social…, op. cit., p. 164. moreover, that alienation had to be implemented “without reservation, the union is as perfect as possible, and no associate has anything further to demand. for if some rights remained with private individuals, in the absence of any common superior who could decide between them and the public, each person would eventually claim to be his own judge in all things, since he is on some particular point his own judge. the state of nature would subsist and the association would necessarily become tyrannical or hollow”, p. 164. 6 rousseau, on the social…, op. cit., p. 176. in the same sense we can see what rousseau says about transformation of possession into proprietary ownership: “what is remarkable about this alienation is that, in accepting the goods of private individuals, the community is far from despoiling them; rather, in so doing, it merely assures them of legitimate possession, changing usurpation into a true right, and enjoyment into proprietary ownership. so, since owners are considered trustees of the public good, and since their rights are respected by all members of the state and maintained with all its force against foreigners, through a surrender that is advantageous to the public and still more so to themselves, they have, so to speak, acquired all they have given. this paradox is easily explained by the distinction between the rights the sovereign and the proprietor have to the same land”, rousseau, on the social…,op. cit., p. 169. bentham was right. was he? the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 84 giving his vote, states his opinion on this matter, and the declaration of the general will is drawn from the counting of votes” 7 . the people in assembly has to decide, necessarily, according to the majority rule, which would raise the paradox of how it is possible to establish by majority in what the general will consists. however, rousseau believes that it is feasible to establish the general will through majority rule. the reason would be found, in his opinion, in that when one votes one is not expressing agreement or disagreement with the proposition, but whether it is in conformity with the general will which is one’s own will. thus the declaration of the general will could be obtained from the calculation of votes. his argument rests on the assumption that it is possible to identify the will of each one with the general will, but only when the people are gathered in assembly to give themselves the law. once the law is created, rousseau admits in it the play of the particular will, which we can see when he speaks of the election of the government, in which the people as government choose those who have to be responsible for the implementation of the law. ii. bentham was right however, neither smith’s nor rousseau’s explanations seem sufficient. clearly the claims of rousseau, or his conceptualization of what the act of alienation consists of or the ability of the individual will to determine whether something is or is not in conformity with the general will when the people are met in assembly are not indisputable. but it is also evident that the distribution of wealth is irrational, so it seems clear that the social order cannot be legitimized purely on the self-interest of those who govern in a society-the sinister interest-an interest that bentham considered opposed to the general interest, which he defines as the sum of individual interests. in this sense, bentham continues rousseau's understanding of the will of all, and thinks the general interest as that which is expressed by that will, the will of all, which, according to rousseau, is simply the “sum of private wills” 8 . this is the climate and the problems that face bentham when justifying human actions, whether of individual or of government. to do that he argues that such actions should be justified from the principle of utility, which meant “that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness. i say of every action whatsoever; and therefore not only of every action of a private individual, but of every measure of government” 9 . the principle of utility rules the possibility of the judgment of any action and is seen as an increase or decrease in the 7 rousseau, on the social…, op. cit., p. 227. 8 rousseau, on the social…, op. cit., p. 172 9 j. bentham, an introduction to the principles of morals and legislation, ed. by j. h. burns and h. l. a. hart, the athlone press, london, 1970, pp. 11-12. josé j. jiménez sánchez the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 85 happiness of the party whose interests are at stake, ie, an increase or decrease of his pleasure over pain. thus, individual action would be justified provided that it promotes individual interest, which always happens when it increases “the sum total of his pleasures” 10 , for which there is no better judge than oneself when judging what actions lead to the increase of one’s own happiness 11 . regarding the latter, the actions of government, they can only be described as useful if they increase the happiness of the subjects whose interests are affected by them. bentham defines “the business of government” as the promotion of “the happiness of the society, by punishing and rewarding” 12 . the difficulty lies in the definition of what we understand by happiness of society. bentham argues that the interest of the community is “the sum of the interests of the several members who compose it” 13 . that is, he poses the question of the happiness of society as the “general interest” or “universal interest”, which he resolves, as we have said, according to rousseau’s the will of all, but confronts rousseau’s conception thereof on the general will, in the sum of individual interests or “aggregation of the self-interests of all the individual members of the community” 14 . bentham’s problem was in determining how the sum of the different interests should be made, that is, how the question of the will of all is solved. bentham did it in the additions he made in july 1822 to an introduction to the principles of morals and legislation, in which he made his position clear. he defined the principle of utility as "the greatest happiness or greatest felicity principle" 15 as a way of lightening the phrase “the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action” 16 . the problem is centered on “those whose interest is in question”, that is the “number, of the interests affected” 17 and the number is to be understood as its “largest proportion” 18 . later, in another addition, also of july 1822, in footnote d, bentham again insisted that against “those features of the english government, by which the greatest happiness of the ruling one with or without that of a favoured few, are now so plainly seen to be the only ends to which the course of it has at any time been directed” 19 , the principle of utility may “be designated by the name of the greatest happiness principle” 20 , that is, “a principle, which lays down, as the only right and justifiable end of government, the greatest happiness of the greatest number” 21 . 10 bentham, an introduction…op.cit, p. 12 11 “[t]here is no man who is so sure of being inclined, on all occasions, to who upon the whole can have had so good opportunities as you must have had of knowing what is most conducive to that purpose. for who should know so well as you do what it is that gives you pain or pleasure?”, in bentham, an introduction…, op. cit., p. 244. 12 bentham, an introduction…, op. cit., p. 74. 13 bentham, an introduction…, op. cit., p. 12 14 p. schofield, “bentham on the identification of interests”, utilitas, vol. 8, nº 2, july 1996, p. 233. 15 bentham, an introduction…, op. cit., p. 11a. 16 bentham, an introduction…, op. cit., p. 11a. 17 bentham, an introduction…, op. cit., p. 11a. 18 bentham, an introduction…, op. cit., p. 11a. 19 bentham, an introduction…, op. cit., p. 14d. 20 bentham, an introduction…, op. cit., p. 14d. 21 bentham, an introduction…, op. cit., p. 14d. bentham was right. was he? the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 86 the principle of utility as a legitimating principle of government action is resolved, in bentham, by the greatest happiness of the greatest number, i.e. majority rule. thus the principle of utility ends by transforming itself into the recognition of the unlimited power of the sovereign, the majority, to which the action of the government has to be submitted and from which finally any law has to be justified or not. this is the impossibility of justifying the originating power, because bentham actually adhered to demand justification for government action, but not the action of the real power, the sovereign power, which is the power of the majority. therefore, the limit, the principle of utility, which is nothing but the recognition against the power of government operative power-, of the authentic sovereign -the constitutive power-, which is identified with the power of those who make up through the sum of their individual interests the universal interest, understood by this as the greatest happiness of the greatest number. regardless of the systems of aptitude and securities, as well as the fact that “[a]lthough the other three authorities [legislative, judicial, and administrative] are subordinate to the constitutive authority, by their very existence in the state they effectively limit the constitutive power of the authority” 22 , bentham devised a mechanism to counteract all power, by which i mean the institutionalization of the public opinion tribunal, which is the recognition of freedom of conscience and expression as central to the construction of the social order 23 . bentham's argument relating to the creation of this tribunal implies the attempt to create a genuine limit to the sovereign, as we have already seen that the principle of utility was nothing but the recognition in the limitation of government action the true sovereign, but posed no limitation on this. now, however, the limit of what the tribunal is, ie, the limit which involves the recognition of freedom of conscience and expression, poses two problems. first, if in reality it is actually such a limit and not a self-limitation and, secondly, whether the creation of that limit would not be inconsistent with bentham’s approach. if the law and therefore the institutionalization of this tribunal must follow the indications of the principle of utility, i.e., the greatest happiness of the greatest number, and this involves the recognition of the power of the majority as sovereign, then it seems clear that the creation of such a tribunal and the political freedoms on which it rests cannot be a real limit of the sovereign, but only and exclusively a self-limitation, for those freedoms of conscience and expression will be recognized to the extent that the sovereign has decided to do so, and they will also be suppressed if that is his desire. fundamentally, bentham's model responds to the conception of a majoritarian democracy in which the limit is designed from the principle of legality or rule of law, which starts its operation from that established by the majority rule. on the rule of law a series of measures have been established that serve to ensure the construction of a controlled democracy, although it does not possess any mechanism necessarily to submit the majority, it is only possible to understand the resignation of the majority to the arbitrary imposition of its will as a self-limitation. regarding the question of whether the creation of that limit, the freedoms of conscience and expression, would be a contradiction to bentham’s system, while those freedoms would have to be outside the 22 f. rosen, “jeremy bentham and democratic theory”, in g. j. postema (ed.), bentham: moral, political and legal philosophy i, ashgate-darmouth, 2002 (1979), p. 48. 23 see in this respect, f. rosen, “jeremy bentham and democratic theory”, art. cit., pp. 52 and ff. josé j. jiménez sánchez the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 87 scope of the decisions of the majority, we would have to say that there is no contradiction, because in bentham the recognition of public rights and liberties can only ultimately depend on the sovereign, while law is created by the will of the legislator in terms of his mandate, so that rights other than those provided by the legislator are not acceptable. the conclusion we might draw from these pages is that bentham was right, he could see the shortcomings of models of smith and rousseau, the first settled on the invisibility of providence and the second on the abstract spirituality of the general will, both far in excess of the actual real will of the members of a particular society. the best proof of his correctness can be found in kelsen’s model of democracy which hinged on the majority rule. this model assumes the reaffirmation of bentham’s project from the moment in which not only the primacy of the majority will is posed, but also the need to establish, in bentham’s wake, certain corrections on the functioning of that rule of the majority to avoid it degenerating into the empire of the majority. iii. kelsen after bentham following bentham, who believed he had resolved the problem put by rousseau by dissolving the general will in the will of all, that is, by identifying the general interest with the sum of the interests of all, with the interest of the majority, kelsen persisted in this approach, and highlighted what in his opinion is rousseau’s error, the “metaphysical -or, better, metapoliticalillusion” 24 , as he thinks it cannot be defended, as rousseau does, the general will as the objective foundation of the state order. on the contrary, the “theory of a social contract [...] is a function of the subjective volonté of the tous” 25 . in this way, kelsen, like bentham, departs from the essentialist grounding, abstract or providential, to approach a foundation of the state attached to actual reality and therefore contingent. this implies that for kelsen we have to approach three questions: 1º the rule of the majority; 2º the need to conceive the common will as transaction and 3º the recognition that the common will and its instrument, majority rule, may end up by committing excesses. in line with what bentham had argued to uphold the principle of the greatest happiness of the greatest number, kelsen asserts that of freedom for the greatest number. he will maintain that majority rule cannot be justified “by saying that more votes carry a greater total weight than fewer votes”, since the “purely negative assumption that the will of one person should not count more than the will of another does not entail the positive claim that the will of the majority should rule” 26 .the reason which justifies majority rule is that if in a given social order it is not possible for all men to be free, the use of such a rule would at least ensure they were “the greatest possible number”, so “that the number of individual wills that are in conflict with the general 24 h. kelsen, the essence and value of democracy, ed. by n. urbinati and c. invernizzi accetti, trans. by b. graf, rowman and littlefield publishers, lanham, maryland, 2013 (1929), pos. 789. 25 kelsen, the essence…, op. cit., pos. 691, fn. 10. 26 kelsen, the essence…, op. cit., pos. 610. bentham was right. was he? the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 88 will of the social order should be minimized” 27 . therefore, majority rule is a presupposition of any agreement, to the extent that the "compromise [between the different interests, between the majority and the minority] constitutes a real approximation to the unanimity that the idea of freedom demands in the development of the social order by its subjects” 28 . regarding the second question, the formation of a common will, kelsen says this is what enables a democratic system to be built based on transaction, so that it would be surrendered to ‘a “higher” absolute truth or an absolute value standing above group interests” 29 , since it would only try to reach an agreement or compromise between these different interests. if “the will of society is not to be the expression of the interests of one group alone, that will must be the result of a compromise between opposing interests” 30 , so that the common will is constructed “in a moderate direction” 31 , as an agreement between the majority and the minority, between the various interests of the majority and the minority. to justify this reasoning kelsen constructs a syllogism in which the major premise says that the concept of the majority “already presupposes the existence of a minority”, 32 the minor premise establishes “the right of the minority to exist” 33 and he draws the conclusion that “[t]hough this does not entail the necessity, it at least raises the possibility of a protection of the minority […which] is the essential function of socalled freedoms and fundamental rights or human and civil rights” 34 . if we read it backwards we see there are two inconsistencies. first, the conclusion dilutes what is already stated in the second premise, because it gets less than the minor premise implies, and second, this premise, the minor, is a change of terrain, because the field in which the major is formulated, the terrain of pure logic, is abandoned, to move to the field of law. this second incongruity has less relevance to the fact that his conception of majoritarian democracy cannot avoid slipping into “majority domination” 35 . in relation to the above the first inconsistency has more substance, because if in the second premise he situates the reflection in the terrain of law and i admit that the right of one, the majority, implies the right of another, the minority, i cannot get less at the conclusion of what was already in the premise, and this is what kelsen does when speaking of possibility rather than necessity. if the right of one implies that of the other, then it is not a matter of possibility, but of necessity. to admit this would have led kelsen to have abandon axiological relativism and consistent with this, his conception of the transaction and the compromise between different positions that defend opposing values and interests, and none of them can be considered better than the others as they are all relative. obviously he could not do it. 27 kelsen, the essence…, op. cit., pos. 620. 28 kelsen, the essence…, op. cit., pos. 1473. 29 kelsen, the essence…, op. cit., pos. 1365. 30 kelsen, the essence…, op. cit., pos. 796. 31 kelsen, the essence…, op. cit., pos. 796. 32 kelsen, the essence..., op. cit., pos. 1305. 33 kelsen, the essence..., op. cit., pos. 1305. 34 kelsen, the essence..., op. cit., pos. 1305-1316. 35 kelsen, the essence..., op. cit., pos. 1446. josé j. jiménez sánchez the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 89 this is the reason why, finally and just like as bentham, he conceived the limit of the majority will as self-restraint and therefore designed it as the “principle of legality” 36 . from here he establishes a series of constitutional measures that serve to ensure a controlled, limited democracy. in order to avoid a “dictatorship of the majority over the minority” 37 and since we have no mechanism that necessarily subjects the majority, it is only possible to understand the majority's resignation to “the implementation of its will in the face of a qualified minority” as a “self-restraint” 38 , which constitutionally must be reflected in the recognition not only of the absolute majority -the legislative authority-, but also of the “principle of the qualified majority" the constituent authority-, which has to function in relation to the “[m]easures, which infringe upon certain national, religious, economic, or broadly intellectual spheres of interest, are possible only with the assent, and not against the will, of a qualified minority; that is, they require agreement between the majority and the minority” 39 , which ensures a higher level of protection than mere legality, on dealing with issues requiring greater degrees of consensus, which is similar to the majority required to amend the basic rules of a system, ie, rules of constitutional reform. secondly, he introduces the constitutional court, which is what has to ensure that the majority does not slide into its empire, by protecting those legislative procedures that require qualified majorities, since “the enforcement of the constitution in the legislative process is in the eminent interest of the minority” 40 , that is, the protection of their rights. iv. conclusion: was bentham right? in short, the above measures would not prevent, as kelsen himself acknowledges, “the limitless expansion of state power and, consequently, the complete loss of individual ‘freedom’ […] as long as this state power is constituted by its subjects” 41 . it is true that this statement could result in the play between majority and minority saying that the majority could subjugate the minority, in that the latter had consented to participate to it, which seems opposite to all reasonableness, as the limits of the political will have be so constructed that they cannot be widened or constricted depending on the contingency of that same will. in my opinion, i think this is the reason why kelsen ends by stating: “he who views absolute truth and absolute values as inaccessible to the human understanding cognition must deem not only his own, but also the opinion of others at least as feasible. the idea of democracy thus presupposes relativism as its worldview. democracy values everyone’s political will equally, just as it gives equal regard to each political belief and opinion, for which the political will, after all, is merely the 36 kelsen, the essence..., op. cit., pos. 1605. 37 kelsen, the essence..., op. cit., pos. 1349 38 kelsen, the essence..., op. cit., pos. 1322 39 kelsen, the essence…, op. cit., pos. 1322-1332. 40 kelsen, the essence..., op. cit., pos. 1600. 41 kelsen, the essence..., op. cit., pos. 629. bentham was right. was he? the age of human rights journal, 4 (june 2015) pp. 81-90 issn: 2340-9592 90 expression. hence, democracy offers every political conviction the opportunity to express itself and to compete openly for the affections of the populace” 42 . with this, kelsen, without knowing it, goes beyond his conception of limit as self-restraint, ie on the declaration and protection of a number of freedoms and fundamental rights, which finally depended on that same majority will, which meant being locked into the same presuppositions as bentham’s conception, for whom the institutionalization of the public opinion tribunal, built on the recognition of freedom of conscience and expression, is eventually supported by majority decisions. however, if we read carefully what kelsen says, we can appreciate that his discourse is contradictory, in so far as, on the one hand, he asserts the relativism on which democracy rests, arguing that it appreciates alike all political will and opinion, while at the same time it has to ensure, on the other, the possibility of manifestation, that is, to express one’s opinion to all men, which cannot be left to what a majority may decide at any given time. so when i say that everything is relative, i cannot maintain at the same time there is something that is not, freedom of expression, which cannot be questioned, as one cannot both defend one thing and its opposite. only if we delve into the principles on which kelsen stands can we avoid this contradiction. to put it another way, would it be possible to settle a social order on the recognition of freedom of expression while we rely on such recognition of the contingency of a decision adopted by the majority? or, on the contrary, would it not be a better remedy to recognize that right as a necessity, as that which the concept of democracy demands, beyond the accidental support of the majority at a given time? this would allow us to abandon the contingency and, therefore, find the foundation of social order not in the particular will of the majority sum of individual wills, but in the general will. if this were so, then bentham would be wrong, although going more deeply into this question would require much more space than i have already taken. 42 kelsen, the essence..., op. cit., pos. 1906-1017. the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 68 legal aspects of the financing of religious groups in spain óscar celador angón 1 abstract: the purpose of this paper is to analyze the spanish public polices in the financing of churches and religious organizations. according to this approach, and taking in account that the spanish legal frame lack of a common regulation for all religious groups, this paper aims to provide analysis of the following issues: the constitutional principles of the spanish political system relevant to the religious freedom, the cooperation agreements between the state and the religious groups, and the economic and fiscal regime of the catholic church and the religious minorities. keywords: financing of religious groups, fiscal neutrality, religious minorities, cooperation agreements between the state and the religious groups. summary: i. introduction; ii. constitutional model of church-state relations; iii. fiscal neutrality, religious freedom and religious pluralism; iv. development of the constitutional principles: cooperation agreements between the state and the religious groups; v.economic and fiscal regime of the religious groups; iv. conclusions. i. introduction the 1978 spanish constitution created a new model of relationships between the state and the religious organizations, breaking the model of catholic confessional state characteristic of the spanish constitutional history. the main ingredients of the 1978 constitutional frame were the protection of ideological and religious freedom guaranteed in the article 16.1 of the spanish constitution, the equality of individuals ordained in the article 14 of the spanish constitution, and the ideological and religious neutrality established in the article 16.3 of the spanish constitution. the spanish constitution also protects the individual against the discrimination for religious reasons in his article 14. however, as we will see, reality shows that in the context of public funding the catholic church, the religious groups that signed agreements of cooperation with the state in 1992 (evangelicals, muslims and jews), and the remaining religious groups have a different status. 1 professor of public law on freedom of thought, conscience and religión, universidad carlos iii de madrid, spain (ocelador@der-pu.uc3m.es). legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 69 as an introductory remark, it may be useful to note that the criterion used in this paper for classifying religious groups as majority or minority, depend if the relation between the religious groups and the state are organized by means of especial agreements. according to this approach, and taking in account that the spanish regulation lack of a common regulation for all religious groups, this paper aims to provide analysis of the following issues: the constitutional principles of the spanish political system relevant to the religious freedom, the cooperation agreements between the state and the religious groups, and the economic and fiscal regime of the catholic church and the religious minorities. ii. constitutional model of church-state relations on december 28, 1978, after many years of dictatorial government, spain adopted a democratic government and approved a legal frame that guides the current pattern of relationships between the state and the religious groups (pelayo olmedo 2007). the spanish constitution of 1978, in providing for a democratic and pluralistic state, entailed a profound change in the state’s traditional attitude towards religious matters. the 1978 constitution recognizes and protects the rights to equality and freedom of religion; and the practice of these rights is guaranteed under the broadest possible terms, subject only to the limitations of public order and the respect of the constitution and the public liberties and fundamental rights. since the disestablishment of the catholic church in 1978, in theory all religious organizations stand on the same legal footing. however, the tradition of the catholic church as the only establish church has had consequences in the formulation of the current model of relations between the state and religious groups. the keywords of the model of church and state relations are formulated in the articles 14 and 16 of the spanish constitution: article 14: equalityspaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. article 16: no faith shall be the official state religion1. freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law. 2. no one may be compelled to make statements regarding his or her ideology, religion or beliefs. 3. no religion shall have a state character. the public authorities shall take into account the religious beliefs of spanish society and shall consequently maintain appropriate cooperation relations with the catholic church and other religious organizations. óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 70 the reference to the catholic church in the spanish constitution should not be interpreted as a way of favoring this religious group on the others, but as the way to break up with the historical precedent of the military dictatorship. during the franco years, roman catholicism was the only religion with legal status, other worship services could not be advertised, and the catholic church was the only religious group that could own property and exercise rights. this close cooperation was formalized through a concordat with the vatican in 1953 that granted an extraordinary set of privileges to the catholic church: mandatory canonical marriages for all catholics; exemption from government taxation and the establishment of a budget for the church (for example for the payment of priests salaries); subsidies for new building construction and the reconstruction of church buildings damaged by the war; censorship of materials the church deemed offensive; the right to establish universities, to operate radio stations, and to publish newspapers and magazines; protection from police intrusion into church properties; mandatory catholic religious instruction, even in public schools; and exemption of clergy from military service. franco secured in return the right to name roman catholic bishops in spain, as well as veto power over appointments of clergy down to the parish priest level 2 . the 1978 constitution recognized the historical role of the catholic church, and opened the doors for a relationship of independence and cooperation between the state and the religious groups. according with the spanish conception of religious freedom, all the religious groups are able to practice their religion freely, and nothing impedes to the individuals live and develops their personality according to their faith (souto paz 1995: pp. 17-20, 35-39). freedom of religion implies that the state should not intervene (neither by acting nor by failing to act) in the process of forming religious convictions or in manifesting them. the religious freedom protected in the article 16 of the spanish constitution is defined as an individual private and personal affair, which must be exercised without fear of persecution or discrimination. religious freedom has been developed through the general law 7/1980 on religious freedom, and defined as the right to: a) profess whatever religious beliefs they freely choose or profess none at all; change or relinquish their faith; freely express their own religious beliefs or lack thereof or refrain from making any statement in such regard. b) take part in the liturgy and receive spiritual support in their own faith; celebrate their festivities; hold their marriage ceremonies; receive decent burial, with no discrimination for reasons of religion; be free from any obligation to receive spiritual support or participate in religious services that are contrary to their personal convictions. 2 http://www.vatican.va/roman_curia/secretariat_state/archivio/documents/rc_seg-st_19530827_concordatospagna_sp.html. legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 71 c) receive and deliver religious teaching and information of any kind, orally, in writing or any other means; choose religious and moral education in keeping with their own convictions for themselves and any non-emancipated minors or legally incompetent persons, in and outside the academic domain. d) meet or assemble publicly for religious purposes and form associations to undertake their religious activities in community in accordance with ordinary legislation and the provisions of this general act. e) the right of churches, faiths and religious communities to establish places of worship or assembly for religious purposes, appoint and train their ministers, promulgate and propagate their own beliefs and maintain relations with their own organisations or other religious faiths, within the national boundaries or abroad. iii. fiscal neutrality, religious freedom and religious pluralism the full exercise of religious freedom demands a complete separation between church and state, because all the citizens have the same right to the religious freedom. the state must play the role of a neutral actor and should not promote one religion over the other, or promote a religion over another ideology (rodriguez garcia 2009; castro jover 2005). the state can promote religious freedom as a fundamental right, but not a concrete ideology or religion, because all religions are equal for the state. the limit to the religious freedom is to infringe the rules protecting fundamental values, so that a person that violates these rules can’t invoke the obedience to a religious obligation as a cause of impunity (torres del moral 1998: pp. 50-51). the coexistence of a plurality of religious groups and cultures in states that recognizes in their constitution the legal principle of church and state separation doesn't outline problems, when these religious groups can practice their religion freely. however, the problems appear when a state (theoretically neutral) favors a group on the others (tarodo soria 2007: pp. 227-278). religious pluralism can be defined as a plurality of religious groups and cultures coexisting within common society. the responsibility of a democratic government is to promote religious diversity, because more religious groups mean more possibility of choice and in consequence more individual freedom. this conception of state appears in the spanish constitution, as one of the fundamental values of the democracy 3 . the state support of religious freedom and the targets of a democratic state are connected, because both policies are founded in the achievement of peaceful coexistence, and promote the full inclusion in the society of those having different beliefs as members of the civil society (torres gutiérrez 1999: pp. 24-33). 3 article 1.1 establishes that “spain constitutes itself into a social and democratic state of law which advocates liberty, justice, equality, and political pluralism as the superior values of its legal order”. óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 72 religious groups can act and organize their activities, they are free to acquire and to sell property, to accept dispositions of individuals under the civil law, and the contributions and other income that religious groups registered in the ministry of justice receive are exempt from taxation. in addition, individuals making contribution to religious groups may deduct part of the amount of their contribution from the gross income on which they must pay income taxes (torres gutiérrez 2000a: pp. 303-331). however, from a constitutional perspective it is not clear whether the direct or indirect public financing of religious groups is consistent with the constitutional model. the debate about the public policies in the financing of religious organizations is a very complex one, and there is not a common agreement in the doctrine about this topic. one sector of the authors argues that the state ideological and religious neutrality forbids government to provide any form of economic assistance to religious groups, independently of their number of members or age (torres gutiérrez 1996: pp. 75-88). it doesn't matter what form aid takes, whether the economic assistance is direct or indirect, or when the economic assistance is directed to all the religious groups and all are benefit equally. the central idea is that any class of economic assistance from the public sector designated to the religious groups tends to establish a religion and is therefore unconstitutional 4 . the defenders of the separation between church and state prefer that the state doesn't finance any religious or ideological group at all, in order to avoid discriminating against their citizens because they have a concrete religious belief, or because they do not have religious beliefs (rodríguez garcía 2005: p. 112). other sector of the authors argues that the government has an obligation, supported in the exercise of the religious freedom, to accommodate the desires of the population to exercise their religious beliefs. according with this point of view, the government may provide economic assistance to the religious groups, because with this policy public powers are promoting religious freedom (motilla de la calle 1989: p. 197). iv. development of the constitutional principles: cooperation agreements between the state and the religious groups statistical evidence indicates that the number of minority religions in spain is growing. this actual growth is taking place within a general framework of legal freedom which possesses both a domestic and a european side. from a european point of view, it is necessary take in account that the article 10.2 of the spanish constitution establishes that: “the principles relating to the fundamental rights and liberties recognized by the constitution shall be interpreted in conformity with the universal declaration of human rights and the international treaties and agreements thereon ratified by spain”. the european convention on human rights (echr) is one of the treaties ratified for spain in this field, and his article 9 says that: “everyone has the right 4 about this topic, see torres gutiérrez (2000b); torres gutiérrez (2001b); martín sánchez (1990); panizo y romo de arce (1991-1992). legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 73 to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. according with the constitutional frame and the echr, all the religious organizations don’t matter their size or number of members, enjoy full religious freedom and equality under the law (tarodo soria 2005: pp. 353-388). however, as we will see, reality shows that a clear distinction exists between the catholic church, religious minorities (jews, evangelists and muslims) and the rest of the registered religious groups. all of them have the right to free exercise of religion, but the status of each religious group depends of the existence of an agreement of cooperation with the state. the article 16 of the constitution establishes that “the public powers will keep in mind the religious beliefs of the spanish society and maintain cooperation relationships with the catholic church and the other religious groups”. this means that public authorities must be neutral in its relationships with the religious groups, and cooperate with the religious groups but not because the state values their religious beliefs positively, but because the state values positively the exercise of the fundamental right of religious freedom (albiñana garcía 1997; amerigo cuervo 2004: pp. 11-36). this form of understanding the relationships between the state and the religious groups has been developed through the article 7 of the spanish organic law of religious freedom, which establishes that: “1. the state, taking account of the religious beliefs existing in spanish society, shall establish, as appropriate, co-operation agreements or conventions with the churches, faiths or religious communities enrolled in the registry where warranted by their notorious influence in spanish society, due to their domain or number of followers. such agreements shall, in any case, be subject to approval by an act of parliament. 2. subject to the principle of equality, such agreements or conventions may confer upon churches, faiths or religious communities the tax benefits applied by ordinary legislation to non-profit entities and other charitable organizations”. spain has a long tradition using special agreements between the state and the religious groups, and until 1992 the beneficiary of such agreements has been exclusively the catholic church (amérigo cuervo 2001: pp. 433-442). these special agreements use to work in three areas: first area is education, and usually the special agreements permits to religious groups get money to finance its private religious schools, or to teach their religion in the public school. the second area is the accommodation of canon law to the civil law, in areas as family law and marriage law. óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 74 the third typical example is the using of special agreements to finance the salary of the clergy or the maintenance of the religious buildings 5 . the application of the principle of cooperation implied that the state is obliged by the constitution to maintain co-operative relations with the religious groups, to the extent that religious beliefs prevailing in spanish society demand (motilla de la calle 1989: p. 197). according with this legal frame is possible to differentiate three levels of church and state relations: first, the catholic church legal status is established in 4 international agreements between spain and the holy see of 1979. those agreements, together with the one signed in 1976, replaced the spanish concordat of 1953. the 1979 agreements are: 1) agreement on legal affairs; 2) agreement on education and cultural affairs; 3) agreement on economic affairs; and 4) agreement on religious assistance in the armed forces and military service for clergy and religious persons. these agreements provides certain benefits to the catholic church that have not been yet made available to other religious entities, or for not religious groups, in areas as, for example, economic assistance, religious education in public school, or religious assistance in the public institutions, as the army forces, hospitals or penitentiary institutions (satorras fioretti 2000: p. 21). second, in 1992, as a result of the negotiations between the religious minorities (muslims, jews and protestants) and the government, it was approved three cooperation agreements, one for each religious minority. the religious organizations were the federation of evangelical entities of spain (ferede), the federation of israelite communities of spain (fcie), and the islamic commission of spain (cie). jews, muslims, and protestants have their own official status through these bilateral agreements, but enjoy fewer privileges than the catholic church. the three agreements are identical in their content, and provide benefits in matters of great importance to citizens professing these faiths, as for example: the status of their religious leaders in areas of such importance as social security and ways of complying with their military duties, legal protection for their religious places, civil validity of marriage ceremonies held pursuant to their religious rites, religious services in public centres or establishments, religious education in schools, tax benefits applicable to religious properties, or the commemoration of religious holidays. and third, the other religious groups recognized by the state and registered in the ministry of justice, but without agreements of cooperation with the state, enjoy fewer privileges than the jews, muslims, and protestants. in conclusion, the spanish constitution and the legal regulation provide for freedom of religion, and in theory there is no any official religion and religious 5 see: torres gutiérrez (2003) pp. 197-223; torres gutiérrez (2001a) p. 97-109; torres gutiérrez (2002) pp. 877-892. legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 75 discrimination is illegal. however, in the practice the catholic church enjoys some privileges unavailable to other religious groups; and muslims, jews and protestants enjoy some privileges unavailable to other religious groups (torres gutiérrez 2003a: pp. 243-268). v. economic and fiscal regime of the religious groups the financing of religious groups in spain is operated through direct economic assistance exclusively in the case of the catholic church. there is no state direct financial support either for the religious minorities or the religious groups registered in the ministry of justice, which must find their own funds for their religious functions, as for example, the salary or stipends of the clergy and other church officers, or the building and maintenance of places for the practice of the religious worship. in common with the charities, the religious organizations do receive certain tax advantages, and their contributors get tax deductions for their contributions. religious organizations are exempt from the payment of major taxes, when such taxes affect their religious activities. the religious organizations are collective manifestations of the right of religious freedom; therefore, from the constitutional perspective, the state is forced to value positively the exercise of the fundamental rights, and should exempt these entities from the payment of taxes. v. 1. economic and fiscal regime of the catholic church v. 1. 1. economic regime in 1979 it was approved an agreement concerning economic affairs between the spain and the holy see of special importance, since it substituted the concordat of 1953. the preamble of the agreement is very clear, and says that, on the one hand, the state cannot indefinitely ignore or prolong legal obligations undertaken in the past; and on the other hand, given the spirit shaping the relations between the catholic church and the state, it is necessary to give a new meaning to both the sections concerning economic contributions as well as to the common system according to which said contributions shall be made 6 . the agreement of 1979 tried to adapt the confessional system of financing of the catholic church, established in the concordat of 1953, to the constitutional model of 1978. the agreement designs a transitional system of public financing of the catholic church, expiring with the self-financing of the church and its financial independence. 6 vid. preamble of the instrument of ratification, dated 4 december 1979, of the agreement of 3 january 1979 concerning economic affairs (boe nº 300, 15 december). fernández coronado (1991) pp. 541-77, óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 76 respect to the duration of the state direct funding, the terms of the agreement were the following ones: “three complete fiscal years after this agreement is signed, the state may assign to the catholic church a percentage from income taxes or net patrimony or other taxes of a personal nature following the most suitable technical method. to do this, each taxpayer must, on the respective tax form, expressly declare his decision concerning the use he wishes to make of the money concerned. in the absence of such a declaration, the corresponding amount shall be assigned to other purposes. as long as the new system is not applied, the state, in the general budget, shall consign a suitable bequest to the catholic church, in the form of one lump sum, which shall be updated yearly. during the substitution process, which shall take place over a period of three years, the budgetary bequest shall be decreased in proportion to the tax assignation received by the catholic church. therefore, the state guaranteed every year to the catholic church the same economic revenues, with independence of the number of taxpayers that indicates in the declaration of irpf its desire to finance to the catholic church” 7 . until 2007, the income tax form included a box that allows taxpayers to assign a percent of their taxes to the catholic church. public financial assistance to the catholic church it has been a difficult and contentious issue. the church argued that, in return for the public subsidy, the state had received the social, health, and educational services of tens of thousands of priests and nuns who fulfilled vital functions that the state itself could not have performed. but the affirmation of the catholic church it is not complete true, because that money is dedicated to pay the salary of the catholic priest, and the state financial assistance for catholic education, charities or social services, are provided with other state budget. additionally, the catholic church may freely obtain payment or donations from the private sector, organize public collections and receive offerings 8 . the amounts donated to the catholic church have the same fiscal regime for donors than the donations to organizations classified or declared as charitable or of public utility (rodríguez garcía 2005: p. 113). v. 1. 2. fiscal regime the fiscal status of the religious activities developed by the catholic church is regulated in the 1979 agreement concerning economic affairs 9 , which established that: a) the following income shall not be subject to income tax or value-added tax: 1. the publication of instructions, statutes, pastoral letters, diocesan bulletins and any other document written by the competent church authorities. 2. teaching activities in 7 instrument of ratification, dated 4 december 1979, of the agreement of 3 january 1979 concerning economic affairs (boe nº 300, 15 december), art. 2. 8 instrument of ratification, dated 4 december 1979, of the agreement of 3 january 1979 concerning economic affairs (boe nº 300, 15 december), art. 1. 9 instrument of ratification, dated 4 december 1979, of the agreement of 3 january 1979 concerning economic affairs (boe nº 300, 15 december), arts. 4 and 5. legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 77 diocesan and religious seminaries, as well as ecclesiastical disciplines at church universities. 3. the purchase of objects dedicated to the worship. b) the holy see, the episcopal conference, the diocese, parishes and other territorial districts, religious orders and congregations and religious institutions and their provincials and their convents and monasteries are entitled to the following exemption: 1. total and permanent exemption from property taxes on the following real estate: churches and chapels designated as places of worship, and their branches and annexed local buildings designated for pastoral purposes; residences of bishops and parish priests; premises designated as offices for the diocesan curia and parish offices; seminaries designated for training diocesan and religious clergy, and church universities, as long as they impart teaching related to church disciplines; and the buildings designated fundamentally as houses or convents of the orders, congregations and religious institutions. 2. total and permanent exemption from excise duties, income tax and capital gains taxes. this exemption does not include those products obtained through financial operations, or those derived from its patrimony, when it has been transferred, nor to capital gains, nor to earnings subject of withholding at the source on income tax. 3. total exemption from taxes on succession, donations and transfer taxes, as long as the acquired goods or rights are used exclusively for worship, maintenance of the clergy, the sacred apostolate or charitable purposes. the catholic religious associations dedicated to religious, charitable, teaching, medical, hospitable or social care shall enjoy the fiscal benefits provided for non-profit organizations, or those granted to private charitable organizations 10 . v. 1. 3. the negotiations between the government and the catholic church of 2006 the negotiations between the government and the catholic church of 2006 in the area of public funding were carried out by the technique of the exchange of notes between the nuncio of their sanctity in spain and the ministry of external affairs. the negotiations concluded with the emission of a combined note in december 2006. the result of the negotiations can be summarized in three points: first, the catholic church will receive from the state exclusively the 0, 7% (before this agreement it was the 0,52%) of the personal income taxes of those taxpayers that, on their tax form, expressly declare their decision concerning the use he wishes to make of the money concerned. in absence of such a declaration, the corresponding amount shall be assigned to other social purposes. it is important to indicate that the contributors that indicate their desire to finance to the catholic church do not pay any more taxes that those who choose not to do it, because they can destine one part of the taxes that are forced to pay to the state to the catholic church. 10 instrument of ratification, dated 4 december 1979, of the agreement of 3 january 1979 concerning economic affairs (boe nº 300, 15 december), art. 5. óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 78 the negotiation was satisfactory for both parts. the government got that the catholic church accepts to pass to the penultimate phase designed in the 1979 agreement concerning economic affairs (the last one is self-financing); while the church has gotten a new financing system but the church didn't refuse anything what did not have to refuse, and made it 16 years after the conventional date, and in exchange it has gotten a financing model that, contrary to the previous financing system, doesn't have date of expiration. second, the catholic church commits to present an economic annual memory, explaining the destination of the revenues received through the system of tributary assignment. and third, the catholic church accepted to pay the value-added tax (iva). the catholic church refused to be exempted to the iva after a long process. the european commission remitted a report to spain in december of 2005, requesting that the catholic church were charged with the iva. the spanish government responded to the commission that the agreement concerning economic affairs between spain and the holy see of 1979 is an international treaty that was signed before the entrance of spain in the european union, and by virtue of this international agreement spain cannot charge with the iva the religious activities of the catholic church, unless the religious group accepts its subjection voluntarily to the tax. the answer of the european commission was that the european regulation forces spain to appeal to all the appropriate means to eliminate the incompatibilities between the european legislation and the national one 11 . v. 2. financing of religious minorities v. 2. 1. economic regime the religious minorities may request services and donations of their followers, organize public donation campaigns and receive offerings and other contributions, as establishes the organic law of religious freedom of 1980. the amounts donated to the religious groups will have the same fiscal regimen for the donor in their income tax as those amounts given to organizations classified or declared as charitable or of public utility. the religious minorities do not receive direct economic subsidies as happen with the catholic church, for this reason religious minorities have requested repeatedly to receive public funding. protestant and muslim leaders would like their communities to receive government support, through an income tax allocation as the catholic church. in answer to these petitions, the government created in 2005 the foundation pluralism and coexistence, dependent of the ministry of justice, in order to promote the integration of the muslim, jewish and protestant minorities. 11 the commission recommended to the spanish government to the amount that the catholic church was saved, and that spain, without charging the tax directly to the church, fulfils the community legislation and paid the iva. see félix ballesta and martínez félix (2007) p. 66; llamazares fernández (1991) p. 909. legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 79 the foundation was constituted by the ministry of justice with a double purpose. on the one hand, it seeks to contribute to the execution of programs of cultural, educational and social interest of the non-catholics religious groups with cooperation agreement with the spanish state, or with notorious character due to their number of followers. and on the other hand, to improve the knowledge that the society has of the religious minorities, avoiding negative stereotypes and favouring its integration in the spanish society. the beneficiaries of the foundation are exclusively the religious groups that signed agreements with the state in 1992 (evangelicals, jewish and muslims), and the religious groups that the ministry of justice has recognized as notorious (at the moment: mormons, jehovah witness and buddhists). the political character of the foundation is appreciated in the composition of the foundation's board, which includes representatives of most government ministries as well as members of concerned religious groups. the foundation funds are used for cultural, educational, and social integration programs (not religious activities). the foundation's bylaw establishes the foundation's objectives: "to contribute to the implementation of programs and projects of a cultural, educational, and social-integration nature" (article 7). the foundation supports activities that pursue these goals as, for example, cultural, social integration and educational activities that reinforce values like democracy, social justice, and respect for human rights, especially among young persons 12 . the foundation does not finance worship services; rather it seeks to benefit religious groups as they carry out activities relating to education, cultural development, and community service. the measure adopted by the government in 2005 doesn't have precedents in the spanish constitutional history, and it supposes that the state finances the cultural activities of the non-catholic religious groups, using a specific institution for the pursuit and attainment of this result. in the words of the first director of the foundation, “because it receives public funding, the foundation represents an entirely new modus operandi in this field and consequently involves the incurrence of some uncertainties. nevertheless, the foundation's mission may prove to be of interest and may ultimately improve how spain's constitutional system treats religion. specifically, the foundation seeks to achieve equality by supporting measures designed to fully integrate religious minorities into spanish society. this goal will be met as the foundation's resources are used to help minority religions conduct social-welfare and charity programs, to provide 12 to realize these objectives, the following actions may be proposed by the foundation: “1.creating teaching materials (manuals, textbooks, audiovisual aids, etc.) that reflect the cultural diversity of spanish and european society as well as the exchange of experiences in this field; 2.creating integration initiativesespecially specific programs for areas where the rate of social exclusion is highest-principally targeting students who, due to their social situation, may act under racist and xenophobic influences; 3.supporting educational content that can help to better comprehend the characteristics of a multicultural society, especially in areas or subjects like history, human sciences, or languages; and 4.promoting the formation of associations, for young persons in particular, with the purpose of encouraging activities meant to slow the growth of racist and xenophobic attitudes”. see contreras mazario (2007) pp. 575ff. óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 80 education and diffusion of information about minority cultures, and to train and educate members of minority cultures” 13 . another argument that would justify the state funding of the cultural activities of the religious minorities would be the absence of social or cultural integration of these communities, but it ignores that other religious or not religious groups (as for example the gypsy minority) are excluded of this type of measures. v. 2. 2. fiscal regime of the religious minorities the fiscal regime of the religious minority groups is regulated in the article 11 of the cooperation agreement between the spanish state and the islamic, jewish and protestant minorities 14 . the following operations realized for the religious minorities shall be subject to no taxation whatsoever: the income proceeding from the distribution of religious publications and internal religious bulletins directly to the religious communities; and religious teaching in centres belonging to the religious minorities, or devoted to training religious leaders. the religious minorities as a legal person are exempt: a) from real estate tax in the case of: places of worship and outbuildings or ancillary premises devoted to religious services or spiritual; premises used for the religious minorities as community offices; and institutions devoted solely to training of religious leaders. b) from the corporation tax when the income, property and rights so acquired, are devoted to worship or social services. 13 according to contreras, “greater difficulties arise with the exclusion of religious entities that qualify and register in the register of religious entities yet are nonetheless excluded because they do not have a conspicuous and well established presence in spain. this exclusion gives us pause, for it represents a limit in the range of possible beneficiaries and eliminates minority religious groups who are equally capable of carrying out many of the foundation's aims. nevertheless, the limitation can be justified by the need for proportionality and the need to identify the most representative groups. both of these restrictions are necessary because the foundation distributes economic assistance from a pool of scarce resources. therefore, there is ample justification for limiting economic resources to groups that, while minorities, enjoy special legal recognition such as notorious character, despite the uncertainty this concept may have. while this exclusion could arguably be seen as breaking the principle of equality guaranteed in article 14 of the constitution, such differential treatment for religious groups has not been criticized as unconstitutional. even so, the application of notorious character to certain religious groups should be understood as transitory; in the future, all religious groups registered in the register of religious entities will enjoy notorious character” (contreras mazario 2007: p. 610). 14 in 1992 agreements on cooperation with the state were signed by three organizations on behalf of protestants, jews, and muslims. the organizations were the federation of evangelical entities of spain (ferede), the federation of israelite communities of spain (fcie), and the islamic commission of spain (cie). laws 26, 27, 28, november 10, 1992, (boe nº1 272, of 12 november 1992). legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 81 c) from the transfer tax when the respective property or rights acquired are devoted to religious services or spiritual support. the associations and entities created and managed by the religious minorities for charitable-educational, medical and hospital or social service activities, also enjoy the tax benefits that spanish state ordinary legislation on taxes applies to non-profit organizations, and those granted to private charitable organizations. v. 3. other religious groups the organizations inscribed in the ministry of justice and recognized by the state as religious do not enjoy the benefits of the “foundation pluralism and coexistence” for the development of their cultural, educational and social integration activities, except if the ministry of justice has recognized them notorious character (at the moment: mormons, jehovah witness and buddhists), or they have signed cooperation agreements with the state. this category of religious groups have the same source of resources than the private ideological organizations to finance their activities, and can improve their tax and fiscal situation by becoming non-profit entities, but not for their religious character but for lacking of profit interest. in the case that the religious groups acquire the status of non-profit entities, they are exempt from certain taxes, which would normally be considered taxable corporate income and which would apply to income received from collections, offerings, and fixed contributions. the same status applies to distribution of text for religious and theological instruction in religious education centers. but, in any case their fiscal status will be worse than the status of the religious group with agreements of cooperation. this situation is incongruous with the constitutional model of equality and not discrimination ordered in the article 14 of the spanish constitution, because the fiscal equality in the exercise of the religious freedom cannot be made depend on the signature of an agreement of cooperation with the state, that which, in turn, depends on elements as the notorious character of the groups, that are subjective and depend excessively on the political interest of the government. vi. conclusions the political and social transformation of the spanish society operated by the constitution of 1978 should in theory have had a profound impact on the model of relations between the state and the religious organizations. the constitutional change was radical, as was the passing from a catholic confessional state to a model of full religious freedom. to avoid a traumatic change in this context, the state has carried out cooperation agreements with the religious organizations. these agreements have promoted the integration of religious groups in civil society, but have legitimized a óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 82 discriminatory system in which some religious organizations enjoy economic benefits and privileges not available for ideological (non-religious) and other religious groups. al the moment, religious groups enjoys different methods of financing. the catholic church is funded by private donations, and public money coming from the personal income taxes of those taxpayers that, on their tax form, expressly declare their decision concerning the use he wishes to make of the money concerned. religious minorities with agreement of cooperation, and the religious groups that the ministry of justice has recognized as relevant, are funded by private donations and public money coming from the public foundation pluralism and coexistence. religious groups recognized by the ministry of justice -but not recognized as relevantare financed exclusively by private donations. and religious organizations that have not been recognized as such by the ministry of justice are financed by the same mechanisms than ideological associations. the direct public financing of the catholic church supposes that the state discriminates among its citizens for reason of its beliefs, and this discrimination doesn't disappear because the state finances other religious groups (for example, by the public foundation pluralism and coexistence). the system used in spain to finance the catholic church it is not the church tax in the way of the german system, were citizens freely decide to finance their religious organizations using the state structures but without cost for the state. in germany church members pay an extra tax plus their income tax, and the extra amount is the money designated to finance their religious organization. the spanish system is a direct economic assistance to the catholic church that, in consequence, is financed by all the contributors. the fiscal regime of religious organizations also raises serious questions about its constitutionality. cooperation agreements between the state and religious organizations have established a discriminatory system in which the catholic church enjoys a privileged status. however, unlike what happens with direct public funding, in this context there is a slow process of equalization between religious groups, and between religious groups, charities and nonprofit organizations. the best example of this situation is the acceptance of the catholic church to pay the value-added tax since 2006. there is also a slow process of fiscal equalization between the non-profit organizations and the religious groups that signed agreements of cooperation with the state in 1992, characterized by the access of non-profit entities to the tax status enjoyed by religious minorities. from a constitutional perspective, is the exemption of religious groups from taxation a matter of legislative grace or a consequence of the religious freedom? there is a constitutional basis for tax exemptions when the income is used for the promotion of religious freedom. as long as taxes have had any potential negative impact on the religious activities of the religious organizations, they have been expressly exempted from such taxes. the amount of the exemptions is not an impermissible sponsorship of religion, since the government does not transfer part of its revenue to the religious organizations, but simply abstains from demanding that the religious organizations legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 83 support to the state. the exemption of religious organizations from taxes may be rooted in the article 16 of the spanish constitution (freedom of religion and state ideological and religious neutrality), because the taxation of religious organization would prevent the exercise of the fundamental right of religious freedom. as we have seen, religious organizations enjoy different models of public financing depending on the agreements of cooperation that they have negotiated with the state. this situation supposes a religious discrimination prohibited by the constitution, which can only be justified on the need to address a slow transition in this context, due to the deep confessional past of the spanish society, but it's been 35 years since the adoption of the constitution. for all these reasons, it seems necessary to change the financing model of religious groups in spain according with three principles. first, direct public funding of religious organizations must disappear in the case of the catholic church and the religious minorities, as a way to prevent that public money will be used to finance private beliefs and to avoid discrimination among religious groups. second, the state can encourage through tax deductions private donations to religious institutions. this model should be the same for all religious and ideological groups, and tax benefits should be identical for all citizens, regardless of what religious group they want to fund. and third, it is necessary to equate the tax status of religious organizations, charities and non-profit organizations that perform activities of public interest. references albiñana garcía c. (1997) “la financiación de las iglesias”. in: revista española de derecho financiero, vol. 14. amérigo cuervo f. (2001) “a propósito de la sentencia del tribunal constitucional de 15 de febrero de 2001”. in: laicidad y libertades. escritos jurídicos, nº. 1. amerigo cuervo f. (2004) “la financiación de las confesiones religiosas en los países de la unión europea”. in: laicidad y libertades. escritos jurídicos, nº. 4. castro jover, a. (2005) la utilización de los signos de identidad religiosa en las relaciones de trabajo en el derecho de estados unidos. madrid: servicio de publicaciones de la universidad complutense. contreras mazario, j. m. (2007) “direct financing of religious minorities in spain”. in: the brigham young university law review, nº 3. félix ballesta, m.a. and martínez félix c. (2007) “¿es contraria al derecho comunitario la exención del impuesto sobre construcciones, instalaciones y obras (icio), de que goza la iglesia católica en españa?”. in: cuadernos de integración europea, nº. 7. fernández coronado a. (1991) “ los acuerdos del estado español con la federación de entidades religiosas evangélicas de españa (ferede) y la federación de comunidades israelitas, (fci). consideraciones sobre los textos óscar celador angón the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 84 definitivos”. in: anuario de derecho eclesiástico del estado, vol. vii. llamazares fernández d. (1991) derecho eclesiástico del estado. derecho de la libertad de conciencia. madrid: servicio de publicaciones de la universidad complutense. martín sánchez i. (1990) “la financiación de las confesiones religiosas en el derecho español”. in: anuario de derecho eclesiástico del estado, vol. vi. motilla de la calle a. (1989) “notas sobre problemas fundamentales de derecho eclesiástico contemporáneo”. in: anuario de derecho eclesiástico del estado, vol. v. panizo y romo de arce, a. (1991-1992) “soluciones conceptuales al actual sistema económico de la iglesia católica”. in: revista de la facultad de derecho de la universidad complutense de madrid. nº 79. pelayo olmedo, j.d. (2007) las comunidades ideológicas y religiosas, la personalidad jurídica y la actividad registral. madrid: ministerio de justicia. rodríguez garcía, j.a. (2005) “la protección jurídica de las minorías culturales en el derecho comunitario”. in: revista europea de derechos fundamentales, nº 5. rodriguez garcia, j. a. (2009) laicità, interculturalità e il meticciato costituzionale democratico in spagna. in: stato, chiese e pluralismo confessionale. satorras fioretti, r.m. (2000) lecciones de derecho eclesiástico del estado. barcelona: bosch. souto paz, j.a. (1995) derecho eclesiástico del estado. el derecho de la libertad de ideas y creencias, 3rd ed. madrid: marcial pons tarodo soria, s. (2005) “los recientes convenios de colaboración entre la generalitat de catalunya y confesiones minoritarias”. in: laicidad y libertades. estudios jurídicos, nº 5. tarodo soria, s. (2007) “federalismo fiscale, principio di sussidiarietà e neutralità dei servizi sociali erogati”. in esperienze a confronto, a cura di antonello de oto e federica botti, bolonia: bolonia university press. torres del moral, a. (1998) principios de derecho constitucional español. madrid: servicio de publicaciones de la universidad complutense. torres gutiérrez, a. (1996) “consideraciones generales sobre el régimen fiscal de las confesiones religiosas en españa”. in: revista de contabilidad y tributación, nº 165. torres gutiérrez, a. (1999) “la asignación tributaria en españa. una quiebra del principio de laicidad del estado”. in: boletín de la sociedad española de ciencias de las religiones. torres gutiérrez, a. (2000a) “el art. 7 de la ley orgánica de libertad religiosa y la discriminación de las confesiones religiosas en españa en la tributación por iva”. in: laicidad y libertades. escritos jurídicos. nº 0. torres gutiérrez, a. (2000b) iglesia y fisco en la historia de españa. madrid: servicio de publicaciones de la facultad de derecho de la universidad complutense. torres gutiérrez, a. (2001a) “los beneficios fiscales de las viviendas de los ministros de culto católico en españa y el principio de laicidad del estado. la sentencia del tribunal supremo de 19 de marzo de 2001”. in: boletín de la legal aspects of the financing of religious groups in spain the age of human rights journal, 2 (june 2014) pp. 68-85 issn: 2340-9592 85 sociedad española de ciencias de las religiones, nº 15. torres gutiérrez, a. (2001b) régimen fiscal de las confesiones religiosas en españa. madrid: colex. torres gutiérrez, a. (2002) “la financiación de la iglesia católica en españa”. in: revista española de derecho canónico, vol. 59. torres gutiérrez, a. (2003a) “el desarrollo postconstitucional del derecho fundamental de libertad religiosa en españa”. in: revista de estudios políticos, vol. 120. torres gutiérrez, a. (2003b) “la asignación tributaria en españa. un estudio crítico”. in: revista jurídica de navarra, nº 34. on the need to study the impact of the international implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights1 pablo rodríguez del pozo2 maría del carmen barranco avilés3 khalid al ali4 rafael de asís roig5 abstract: a historically marginalized and overlooked segment of the general population worldwide, persons with disabilities have long struggled with discrimination, inequality and even maltreatment. they have often been treated as societal outcasts and their disabilities treated as medical conditions that need to be “fixed” in order for the individual to join the rest of society. throughout the last three decades, this approach has been steadily changing towards an inclusive model whereas persons with disabilities are recognized as a protected group of citizens who are due the same complete human rights as the general population. this change has become particularly evident with the united nation’s approval of the international convention on the rights of persons with disabilities (crpd) in 2006. however, the strides made by the approval of the crpd are merely philosophical unless the rights recognized by the convention can be defended by a court of law. this is where the importance of the ratification of the crpd by member and observer states comes into focus. by ratifying the treaty in 2008, qatar committed itself to a number of social and legal obligations. however, implementation of the crpd in qatar is dependent on a number of factors including political willingness, the abilities of the crpd’s united nations follow-up committee, and the capacity to raise awareness among the public in qatar. this paper looks into the traditional approaches taken towards persons with disabilities, the impact of the crpd and the challenges faced by qatar as it looks to implement the crpd. keywords: disabilities, qatar, united nations, human rights, non-discrimination the history of human rights in the 20th century might best be described as an evolving process moving toward equality, non-discrimination (peces-barba 2014), and the elimination of geographic and non-geographic borders (ansuátegui 2014). this has 1 this publication was made possible by the nprp award nprp-7-380-5-051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors. 2 weill cornell medical college in qatar (prd2002@qatar-med.cornell.edu). 3 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 4 qatar university (kalali@qu.edu.qa). 5 universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 1 p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig continued to the present day and in all likelihood will endure throughout the 21st century. independently of other factors, two main processes have led to the path toward equality and non-discrimination, and continue to have an overarching influence: the process of generalization and the process of specification of human rights (peces-barba 2015: 154). generalization seeks to extend the benefits of human rights to persons or groups who were not recognized as bearers of those rights or who were in practice denied the benefits of those rights. specification attributes some particular rights to certain persons in order to allow them to fully enjoy the complete set of human rights enjoyed by the general population. these two processes have manifested as two main dimensions: equality as non-discrimination and equality as a demand for differential treatment (sometimes called positive discrimination). in the process of specification, the notion of formal equality (equality before the law) is combined with the idea of material equality, which consists of the factual enjoyment of rights (barranco 2011: 22). material equality often requires a differential treatment for certain persons or groups affected by difficulties that impede or condition the effective exercise of their equal rights. the process of specification, thus, gets reflected as demands for positive differentiation in order to protect the rights of individuals who face special difficulties in exercising their basic rights. in line with the process of specification, the united nations convention on the rights of persons with disabilities (crpd) introduced a new paradigm for the rights of persons with disabilities. in addition, it introduced for the first time a relationship between diversity, equality, and the foundation of human rights in an international legal text. the challenges of implementing the crpd and making the domestic legislation of signatory countries consistent with its mandates are enormous, and the state of qatar is one of many countries that are exploring revisions to its existing legislation. in this article, we will analyze the basic contents of the crpd together with a historic account of the notions that inform it. we will analyze the contextual factors that might contribute to qatar’s success in implementing the convention but which might also present certain challenges. further, we will suggest a roadmap to better understand if and how the text of domestic legislation and regulations is consistent with the crpd’s mandates. we will finish by suggesting strategies that might help speed up the process of implementation, by pointing out some of the challenges ‒ and opportunities ‒ that lie ahead. the international convention on the rights of persons with disabilities the international crpd, approved by the united nations general assembly on december 13, 2006, was the culmination of a long process and the fruition of the contributions of many actors ranging from the united nations member states to the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 2 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights observer states, un agencies, national organizations concerned with human rights (palacios 2008; cabra, palacios, bariffi 2009), and organizations for people with disabilities, as well as individuals with disabilities, all of whom played a noteworthy role throughout the crafting of the crpd6. historically, the un considered disability as a matter of social development, and thus kept it outside the scope of the system of international protection of human rights (quinn and degener 2002; lawson 2007, mègret 2008). however, its approach underwent a steady change over the last three decades. an example of this development is the framing of standard rules on the equalization of opportunities for persons with disabilities, which was adopted by the un general assembly, in 19937. thanks to this document, people with disabilities have come to be understood as a group in need of protection. the un has also emphasized the particular nature of the rights of persons with disabilities in certain situations and has insisted that member states must adopt special measures to guarantee the enjoyment of human rights by those individuals with disabilities. however, the standard rules remains a non-enforceable document; it is useful as a guide or soft law, but it does not strengthen the rights of these vulnerable groups. this was a long-time concern among the experts who maintained that it was necessary to have an international treaty specifically to protect the rights of persons with disabilities (quinn and degener 2002: 293–294). it was not until may 2001 that such an instrument began to be prepared, culminating in what became the first human rights treaty of the 21st century, the crpd. the convention was a major leap forward, because it came to universally crystallize the most up-to-date notions of disability, based on its social causation and its understanding as an element of diversity, leaving behind the outdated concept of disability as a medical problem. in the following pages, we will take a historical look at the categorization of disability and will summarize the main traits of the concept of disability as introduced by the crpd. from undesired evil to social enrichment: models of disability and human rights there are various ways of thinking about disability. a leading disability scholar, agustina palacios, from the universidad nacional de mar del plata, in argentina, has identified three major historical models through which the concept of disability has been conceived, which, in turn, determined how disabled persons should be treated (palacios 2008: 103). isolation and exclusion the isolation and exclusion notion of disability is the most primitive one. in this model, magic or the intervention of supernatural powers were considered to be the cause 6 these organizations, which totaled about 70 at the end of the process, worked together in the international disability caucus.7 7 resolution 48/96, adopted by the general assembly 48/96 (a/res/48/96). the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 3 p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig of disability. people with disability were considered unnecessary, or even dangerous, bearers of evil messages or living signs of the god’s ire. as a consequence, societies isolated these people by marginalizing them or, at best, by treating them as objects of charity ‒ to alleviate their lives that were not worth living. needless to say, there was a clash between these ideas and any notion of human rights. the medical model this concept, sometimes called rehabilitative approach, sees the origin of disability as a product of a physical, mental, or sensory limitation, and dictates that those with disabilities should be studied and managed by medical science. people with disabilities are no longer considered useless, as in the previous model, as long as they can be rehabilitated. this model seeks to normalize people with disabilities in order to integrate them into society (oliver 1996: 31). disability is seen as a problem of the individual caused by accident, illness, or a physical condition, requiring medical assistance. the goal of such assistance is either a cure or to better adapt the individual to his or her situation (oliver, barnes and mercer, 2003). disability is, in this model, dealt within the framework of the social security system, and is protected by civil law through regulating the declaration of incapacity and the establishment of rules for guardianship. since this model deals with the treatment of disability from a welfare point of view, persons with disabilities are not seen as subject to discrimination (lawson 2007: 563‒619. stein 2007. cuenca 2012). rather, they are seen as having a limiting physical or mental anomaly: accordingly, public policies should be aimed at resolving such anomalies to the greatest degree possible in order to integrate the rehabilitated person into mainstream society. the social model and its diversity model variant in this case, disability is seen as a set of limitations, the roots of which have to be found in the failure of society to accommodate the differing degrees of ability of its members and to provide appropriate services for those who need them (morris 1991. hanh 1993. hughes 2002). in this view, it is not the organic or mental condition per se, but rather the social context that determines the individual’s disability. disability is viewed not only as a result of functional limitations but also as a consequence of social influences (quinn and degener 2002: 14). problems that at first seem to belong to an individual, in fact, assume a social nature – a consequence of social dynamics. in this model, the rights of people with disabilities are limited by the social context. it is thus necessary that public policies overcome discrimination and realize the universal enjoyment of rights, paying special attention to the social determinants of discrimination. of late, a variant of the social model is gaining traction, however. this variant is called the diversity model of disability (romañach and palacios 206: 28), and it is based on the postulates of the independent life movements. this notion considers disabled the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 4 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights people (or differently abled persons, to use the term favored by the proponents of this vision) as intrinsically valuable on their own merits on the basis of their diversity, which exists to enrich human societies and make them more creative, interesting, and even prosperous. the diversity model shares with the social model’s view that disability is a socially determined condition, but it adds something of its own: it does not perceive disability as being necessarily bad, or an intrinsic limitation. the person with a disability is, in this perspective, simply a person different from others, and his or her presence in society contributes to its richness. public policy with regard to disability should, thus, become nearly invisible, or at least non-obvious. to this end, the diversity model demands the specification of a set of rights. the social and diversity models share a number of postulates, three of which will be mentioned here. first, they question the focus of the traditional model of human dignity based on people’s capacities and social role (a greater contribution to society equals greater dignity and honors) (de asís 2007. cuenca 2015). almost as a corollary, they do not accept the notion of percentages of handicap8, but rather focus on the specific situation in which each person with disabilities finds himself or herself. finally, they both pursue equality as their final goal. this is why they support the main strategic tool to enable equality, this is, positive discrimination, or the idea that there are circumstances and situations that make persons different and these are relevant enough to justify unequal treatment in order to achieve material equality. the social and diversity models both correspond to two major points of focus present in the contemporary study and treatment of disability: the focus on the individual situation and the focus on the group (de asís 2013: 70). the focus on the individual situation, typical of the social model, analyzes the disability not by concentrating on the features that identify the person with a disability, but rather by focusing on the surrounding social circumstances in which the person is immersed. the legal response to these situations is aimed at enacting the rights that are denied or that the disabled person is effectively unable to exercise. the focus on the group, a development from the diversity model, analyzes the question of diversity from the perspective of the characteristics that serve to identify a person, and sees the appropriate legal response as reaffirming the value of the group, by highlighting what makes the group recognizable and promoting diversity as the guiding value and goal. 8 as does, for example, spanish legislation that makes reference to a handicap equal to or greater than 33%. the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 5 p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig there is a subtle difference between these two approaches. while they are both aimed at universalizing rights, that is, to extend the enjoyment of human rights to people with disabilities and to correct discriminatory situations, the focus on the individual situation resorts to positive discrimination to achieve equality, while the focus on the group uses positive discrimination not to strengthen the rights of scattered individuals, but rather to combine all individual recognitions of rights in order to obtain a positive valuation of the group’s identity (de asís 2010: 163). in the group view, the group’s identity is the path to achieving equality. the crpd contains elements that reflect both these models and focus9. crpd: the human rights-based approach to disability the model of diversity that was analyzed earlier and the focus on the group are embodied in the preamble to the crpd, which affirms that signatory states recognize "…the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty." also paragraph ‘d’ of article 3 sets out as one of the general principles of the convention, "respect for difference and acceptance of persons with disabilities as part of human diversity and humanity." these principles have influenced the convention the most. article 1 proclaims that the basic objective is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” as is made patent throughout the text, the final goal of the convention is not the recognition of new rights exclusive to persons with disabilities; rather it is the identification of the rights that all human beings possess, paired with a set of additional assurances that need to be provided to people with disabilities so that they can enjoy the benefits of their basic human rights on the same basis as everyone else, most particularly within environments in which the protection of those rights needs to be reinforced due to the extent to which they have historically been unprotected or directly violated. the crpd marks a turning point in the treatment of disability. its most noteworthy feature is that it completes a process where disability is brought within the purview of the parameters of human rights (palacios and bariffi 2007. mackay 2007). in addition, the crpd fosters visibility and raises awareness about the rights of persons with disabilities, and provides a legal instrument to demand the effective exercise of those rights (cuenca 2012). 9 from the material published to date on the pursuit of rights for the hearing impaired, this community could be placed in the individual model. however, hearing impaired communities are not pursuing a disability human rights strategy, but rather a strategy of cultural and linguistic rights.23 the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 6 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights the human rights approach is based on legitimate and inalienable demands and interests, independent of any political wrangling and beyond changing economic and other policies. the uniqueness of the human rights-based approach implies, at least (de asís 2013: 33). 1) the consideration of those rights as the inspiration for, and the factor that determines the validity of, public policies; 2) the legal enforceability of the identification of any individual with disabilities as being in full possession of their human rights; 3) the identification of those who have the legal mandate to respect those rights; 4) legal accountability for the non-observance of those rights; 5) the accountability of the states in relation to the enactment of rights; and finally, 6) the requirement of the treatment of the disability as a matter of universal interest, not limited to a single group. this has significant implications for the demands and aspirations of persons with disabilities. the reference to the human rights framework brings these demands and aspirations within the ambit of legal rights that can be defended before a court of law, because such rights now create, in turn, true obligations held by public authorities and individuals. beyond that, the rights recognized by the convention can be defended by resorting to the tools provided by international law on human rights. the human rights approach implies abandoning the discourse of welfarism or, in the least, relegating it to a secondary order (barranco 2015: 29). nevertheless, it must be cautioned that the human rights framework does not turn the demands and claims of persons with disabilities into absolute ones. general human rights theory has stated that it is not possible to refer to absolute human rights. the right to universal accessibility may be restricted to what is considered necessary, possible, and reasonable (de asís 2013: 82). in any event, the rights framework, which assumes the non-existence of absolute rights, requires that any limitation of rights is strictly undertaken within its ethical framework, related to the notion of human dignity and in line with the main objective of that right. the right to accessibility, for instance, is designed to address the barriers and obstacles that prevent the execution of certain goals, such as being educated or having access to justice, which are considered to be indispensable. implementing the crpd in qatar qatar ratified the crpd on may 13, 2008, and signed its optional protocol, pending ratification. by ratifying this treaty, the state of qatar commits to a number of obligations that have social and legal repercussions. the depth and legal strength of those developments will depend on three main contextual factors and critically on the textual factor, this is, the current legislative and regulatory framework. the contextual factors are concerned with the local and international political climate, and with the social dynamics in qatar. the first contextual factor is represented the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 7 p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig by the political willingness of the qatari legislators and their sensitivity toward the satisfaction of the rights of persons with disabilities. the second factor is the role of the crpd's united nations follow-up committee in identifying missing goals or deviations and requesting corrective measures in a proper and timely manner. the third contextual factor is the dynamism and efficacy of movements and groups dedicated to the rights of persons with disabilities in qatar, and their ability to raise awareness among the public about those rights and become a receptive and respected voice before the government. it is critical for the implementation of the crpd that these contextual factors are aligned and operate synergistically. the precondition to achieve such synergy is that all parties involved have a shared philosophy about disability and, thus, speak the same language. the foundation of the crpd was dictated by what we describe as the social model of disability, mentioned above, where disability is understood to be the consequence of the social environment. nevertheless, the crpd also contains elements that belong to the abovementioned diversity model, where the differently-abled person is seen as a valuable member of society, based on his or her contribution to the benefits of diversity. all the actors in the process of implementing the crpd should embrace its model of understanding and methods of dealing with disability. the legislator should be sensitive to the social conditions that make disability apparent. social movements and groups promoting the rights of persons with disabilities should ensure that their demands focus on the social context and include the value of persons with disabilities as individuals as well as a group. these movements should educate the public in the philosophy that inspires the crpd. however, even having achieved an alignment of contextual factors, and even if all the contextual factors were aligned and operated synergistically, the implementation of the crpd could still be derailed if the work of the relevant bodies is technically weak or incoherent. enter the textual factor, which is technical in nature and consists of having a solid understanding of the current textual legal framework in qatar and of the necessary changes and adjustments required to make it compliant with the crpd. the quality of the textual factor will, in the end, determine, despite the political willingness of the legislator, the work of the united nations follow-up committee and the strategies of the stakeholders: the actual realization of the rights of persons with disabilities in qatar, as has happened in other ratifying countries. this requires an understanding and a study of qatari legislation. it is, thus, critical to conduct a study that aims to define the impact of the crpd on the rights of persons with disabilities in qatar and to identify areas where adjustments are needed in the qatari legislation to ensure its full compliance with the crpd. it is also important to suggest ways in which the internal qatari law might be incorporated into the requirements of the crpd, employing a legislative technique that is consistent with the qatari legal system and its inspiring values and traditions. the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 8 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights in the following section, we will try to outline some of the challenges related to contextual factors and the legal and regulatory factors to be addressed for an in-depth implementation of the crpd in qatar, as well as a work plan that takes into account both the technical complexity of the task and the methodological requirements of a convention based on international rather than local considerations. understanding the context the state of qatar has introduced a number of important legislative reforms, many of which are aimed at promoting the rights established by the 2003 constitution approved by a referendum, indicating a breakthrough for the region and a testament to qatar’s leadership. continuing on this path, qatar has ratified the international conventions on human rights and has created governmental agencies for the promotion and protection of those rights, such as the human rights office and the directorate of human rights, at the ministry of foreign affairs and at the ministry of interior, respectively. to the same end, qatar has also created non-governmental agencies such as the national human rights committee. some of these agencies provide direct aid and services to persons with disabilities, such as the ministry of labor and social affairs directorate for the protection of rights of children, women, the elderly and persons with disabilities, the shafallah center for children with special needs, and the al noor institute for the blind, among others. these are impressive developments in qatar’s infrastructure to address disability in a country where, according to the national census of 201010, there are a total of 7,743 persons with disabilities, representing 0.45% of the total population11. political commitment to the cause of people with disabilities has been robust in qatar. in 1995, the country passed law no. 38, which modified the provisions of the social security system, providing governmental assistance to social groups including organizations of persons with disabilities. in 1998, the government created the supreme council for family affairs (scfa, decree no. 53/1998), a high-level national body that, among other things, has the mandate to deal with the implementation of international conventions, ratified by qatar, which relate to the rights of children, women, and persons with disabilities. following the scfa’s recommendations, qatar passed, in 2004, law no. 2/2004, for the protection of people with special needs, aimed at ensuring the rights of persons with disabilities in all the fields12. the mandates of the law are remarkably ambitious. 10 see http://www.qsa.gov.qa/qatarcensus/census_results.aspx 11 these numbers appear to be remarkably low by international standards, where people with disabilities account for approximately 10% of the total population. under-registration is a likely explanation for the apparent distortion. culture may explain part of this phenomenon, but some legal definitions of disability might be at the root of this problem. 12 these laws can be found at http://www.almeezan.qa/default.aspx?language=en the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 9 http://www.qsa.gov.qa/qatarcensus/census_results.aspx http://www.almeezan.qa/default.aspx?language=en p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig under this law, persons with special needs enjoy particular protection in the state of qatar, by means of: 1) special education, health treatment, disease prevention, and vocational training; 2) receiving all the tools and means to facilitate their learning and mobility processes; 3) receiving special qualifications and training certificates upon completion of certain training programs and subsequently being appointed to roles that accommodate their relevant skills and training; 4) dedicating around 2% of the jobs in the private sector to people with special needs without any discrimination based on disability. undoubtedly there is administrative, economic, and legislative support for persons with disabilities in qatar. however, there is a risk that despite all these efforts, resources, and political will, the outcome might be a patchwork of somewhat noncohesive endeavors when taking steps toward enabling persons with disabilities and implementing the crpd. the reason behind this fear is that in qatar, the concept of disability seems to be more slanted toward the medical or rehabilitative model. in these models, disability is seen to be a state caused by accident or illness or any other physical condition that needs medical care and the assistance of social welfare to overcome physical or mental limits, and that efforts must be made to integrate the newly rehabilitated person productively into society. this has historically led to a huge advancement in the treatment of persons with disabilities, but the crpd encourages countries and societies to go beyond the medical model to embrace the social and diversity models, which speak the language of antidiscrimination and human rights when approaching the problems of persons with disabilities. perhaps the medical concept of disability is at the root of why qatar is assessed as a country expending considerable effort on behalf of persons with disabilities; however, the implementation of these efforts is still perceived as a work in progress. a united nations special rapporteur on disability remarked, after a brief mission to qatar in 2010, that there is "a clear commitment from qatari society to the needs of persons with disabilities"; these are tangible at the shafallah centre for children with special needs and at the al noor institute for the blind. the rapporteur stressed that "… it appears that there is a clear commitment from the state and the private sector toward the issues confronting persons with disabilities in qatar. anecdotal evidence suggests that the private sector is a big contributor to institutions [for people with disabilities]." nevertheless, the rapporteur warned that "… it also became clear that much of the caring and development remain almost exclusively disability-specific as opposed to the mainstreaming of the development needs of persons with disabilities.”13 clearly, mainstreaming the needs of those with disabilities will be a step in the right direction. in 2010, the international disability alliance, a global network that aims to promote the effective and full implementation of the crpd, recommended that "qatar 13 these observations may be found at http://www.un.org/disabilities/default.asp?id=183 the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 10 http://www.un.org/disabilities/default.asp?id=183 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights adopt a proactive and comprehensive strategy to eliminate de jure and de facto discrimination on any grounds and against all children, paying particular attention to girls, [and] children with disabilities.14" some of the challenges that have to be addressed at this level have to do with the currently weak independent organization of people with disabilities. one prerequisite that the crpd stipulates as essential for the social model is that decisions affecting people with disabilities should be taken with their participation. in the case of public decisions, this requires the existence of independent organizations able to act as counterparts to governmental agencies. some of the existing conditions in qatar give us hope that qatar will be able to produce a seamless implementation of the crpd: the political will, evident in a number of administrative, organizational, and economic efforts, is palpable. there exists a healthy social environment that is sensitive toward disability, and interest groups are organized around solid institutions that are respected and heard in the social scene. however, there is the risk of not moving at the right pace, not due to lack of effort or will, but rather founded in the prevalent philosophy regarding disability that considers persons with disability as incapable of making their own decisions and which, due to concerns about their care, prevents their equal participation and inclusion. embracing the social and diversity model of disability is an additional effort that needs to be made to hasten the crpd's implementation in qatar, to benefit persons with disabilities. however, all these efforts do not necessarily guarantee success. the crpd is a written, enforceable law, and accordingly those interpreting the domestic legislative framework have the task of embedding it into the qatari legal and regulatory system in a coherent, technically solid manner. this is the textual factor, which will be analyzed in the next section. understanding the texts (the legal and regulatory framework) the “textual” implies studying the current textual legal and regulatory framework in qatar in order to better understand how to translate into mandatory texts the principles and the provisions of the crpd. this study might need to fill gaps where the laws are mute, and to introduce changes where they are needed. the qatari constitution, article 6, states that "the state shall respect international charters and conventions and shall strive to implement all international agreements, charters and conventions to which it is party." however, in incorporating such international charters and conventions, substantial revisions are often required. the formal incorporation of the crpd into internal law will have a significant impact on the various branches of the legal system and might imply the adoption or modifications of various laws in order to give practical effect to the rights set out in it. 14 see http://www.internationaldisabilityalliance.org/sites/disalliance.epresentaciones.net/files/public/files/upr-7th-session-recommendations-from-ida.doc (last accessed december 7, 2015). the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 11 http://www.internationaldisabilityalliance.org/sites/disalliance.e-presentaciones.net/files/public/files/upr-7th-session-recommendations-from-ida.doc http://www.internationaldisabilityalliance.org/sites/disalliance.e-presentaciones.net/files/public/files/upr-7th-session-recommendations-from-ida.doc p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig it might be tempting for the legislator to draw up and pass a general law establishing that legal and regulatory changes should be made, allowing the different departments and agencies to make ‒ or propose ‒ such particular changes independently. however, a single law may not necessarily succeed, first, because some of the needed reforms will probably require a period of time before they reach maturity and become embedded in common practice, and it will also be necessary that social awareness develop simultaneously. second, because along with some general normative changes, much more scattered, specific areas would need to be addressed, which might require specific mention in the legislation. third, because some reviews are neither technically nor theoretically complicated, while many others are complex and more controversial ‒ for example making mandatory the construction of ramps, or that signage includes braille subtitles, cannot be likened to changing the entire system of representation and guardianship ad litem. a single law may not cover all the necessary elements required to address these variations. particularly complex issues are concerned with the development of technical standards to prevent discrimination on the grounds of disability along with the consideration of cases of multiple or intersectional discrimination. it will also be necessary to articulate a definition of disability under the convention and, of course, to proceed with the implementation of legal remedies and the harmonization of measures taken within the existing laws to ensure widespread acceptance and practical application. naturally, the objectives of the convention and each of its articles may be subject to different interpretations; and there are sometimes not so clear understandings of internal laws and regulations. an additional challenge to any review of internal qatari law is, thus, that any proposed change derived from the crpd must be thoroughly debated on the basis of a range of interpretive arguments and potentially colliding legal hermeneutics. the next section sketches a work plan aimed at better understanding the impact of the crpd on the qatari legal and regulatory system. as in any realistic plan, our proposal is flexible and will need to adapt to, and learn from, what it discovers as it progresses. the impact of the crpd on qatar's legal system: taking the fast track although it is true that each state has the freedom to set up its own internal procedures to transform international law into domestic law, after ratifying an international treaty, state parties have to start a process by which their domestic legislation is reviewed and reformed in order to avoid contravening their international obligations. it is necessary, and timely, to carry out a thorough study of the qatari norms that are impacted by the crpd. this extends to all domestic legislation in qatar, including ‒ the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 12 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights but not limited to ‒ the norms that affect the rights of persons with disabilities, as every single portion of the legal system might be affected by the convention. some efforts have already been made, most particularly in the law no. 2/2004 on the rights of persons with disabilities. however, an in-depth study must encompass the entire legal system in an attempt to highlight the likely reviews and modifications that the texts would need to become fully crpd-compliant, without abandoning qatar’s heritage, most particularly those elements that refer to deeply rooted muslim traditions at the center of national identity. the study should be divided into: 1) analysis of the principles today that shape the legal framework for the treatment of persons with disabilities, and a review as to what extent they harmonize with the principles that animate the crpd; 2) analysis of the impact of the crpd on the broader areas of qatari legislation (civil, commercial, criminal, labor, tax, and procedural law); 3) analysis of the impact of the crpd on specific areas of qatari legislation (e.g., health, healthcare, and biomedical research, freedom and security, employment, social services, accessibility to audiovisual means, travel and transportation); and 4) proposals for ways to reconcile internal law with the mandate of the crpd. this study will rely, by design, on three of the classically described methods of law research: doctrinal, problemand policy-oriented, and reform-oriented. doctrinal research probes what the law is in a particular area and tries to determine the exact mandates of that law. in our case, since the intersections between the law and the rights of people with disabilities as defined by the crpd are scattered throughout the qatari legal system, the doctrinal method would require us to divide and subdivide the legal system by areas, in order to collect and analyze every relevant piece of legislation. doctrinal research also requires the analysis of secondary sources, such as specialized journal articles that contain commentaries on the law, and ‒ when necessary ‒ the jurisprudence of the courts, in order to identify the way the judicial reasoning applies the law to reality. problem and policy research consists of assessing the problems affecting the law, and the policy issues underpinning the law, in its current configuration. researchers should identify the policies underpinning the existing law, and should be able to note how some policies may have to be revised and or others that might have become obsolete in light of the crpd. this would help explain why particular pieces of legislation were enacted in the first place, and would cast a light on the possible legislative reforms required to adapt to the crpd. this kind of research requires input from agencies, institutions, and organizations that deal with protecting, promoting the welfare and education of, and representing the disabled in qatar. reform-oriented research consists of organizing the findings obtained from other methods, and trying to reach a conclusion on whether the law needs to be reformed. in our case, the project should reach tentative conclusions as to whether the current qatari the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 13 p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig legal system requires amendments, repeals, or the enactment of new laws and regulations in order to become fully compliant with the crpd and how these changes might be achieved. as with policy research, input from agencies, institutions, and organizations that deal with protecting, promoting the welfare and education of, and representing the disabled in qatar is very relevant. the study should be organized in four stages: 1) inquiry into disability and the law in qatar; 2) determination of the extent to which the principles and criteria of the current legal system in qatar conform to the legal framework of the rights of people with disabilities as laid out by the crpd; 3) study of the general impact of the crpd on the qatari legal system to determine the areas that need to be modified or reformed; and finally, 4) the design of proposals for the development of the crpd's mandates and/or the possible amendments required to qatari legislation for it to become fully compliant with the crpd. the dissemination of the results will be made stage by stage, in accordance with the objectives of the study and as required by the research design itself. this study will help qatar adopt a proactive and comprehensive legal strategy to eliminate discrimination on any grounds, and against any group. it will also help qatar fulfill its commitment as required by the crpd. beyond this, the study will help remove barriers that prevent full integration of the disabled into mainstream society and which might hinder their personal and professional development. the project will help people with disabilities to become visible in qatar. the study will propose high-impact legal measures to further the protection that qatar provides to people with disabilities. it will have a critical significance to people with disabilities in qatar, and to their families. the project will consolidate qatar’s leadership in the region in matters of compliance with international conventions, human rights, and human development. conclusions human rights have moved, since the 20th century, toward equality, making successful efforts to eliminate all barriers to this end. the process has gained further momentum in the present century, trying, on the one hand, to further generalize the enjoyment of human rights among persons or groups who were not recognized as the bearers of, or who in practice were denied the benefits of, those rights and, on the other hand, trying to grant a specific set of special rights to certain persons so that they might fully enjoy the full spectrum of human rights. the un crpd of 2008 breaks new ground in the promotion of the rights of persons with disabilities, while also transcending that goal by crystallizing the most advanced model regarding the very concept of disability in the context of human rights. such a concept is the social model of disability, where disability is seen as the social failure to accommodate the different degrees of ability of its members. to some extent, the convention adopts the diversity model, which views persons with disabilities as net contributors to the enrichment of human societies. the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 14 implementing the international convention on the rights of persons with disabilities in qatar: from charity to human rights qatar ratified the crpd in 2008. qatar should be confident that several factors place the country on a solid footing to face the challenges of fully implementing the crpd. qatar's leadership has shown the moral sensitivity and political willingness to further the rights of persons with disabilities in accordance with the convention. this commitment is evidenced by the reforms already implemented to enhance liberties and human rights in general, epitomized by the human rights offices in the ministries of interior and foreign affairs, together with the national human rights committee, created in 2002. more specifically, the ministry of labor and social affairs has a directorate dedicated to the elderly and persons with disabilities, to protect the rights of these vulnerable groups. these are impressive structural efforts, which create an auspicious context for the implementation of the crpd. qatar has also passed some key legislative texts, such as law no. 2/2004 for the protection of people with special needs, which contains ambitious mandates aimed at furthering the rights of persons with disabilities. all these administrative and legislative efforts have been accompanied by generous funding. however, there is room for improvement in these initiatives. these very valuable initiatives still look unsystematic. this has also captured the attention of the international disability alliance in its report on the country in 201015. we believe that all qatari institutions, as well as the private sector, need a clear legal mandate to put the country on the fast track toward the full implementation of the crpd. we find that such a clear mandate should start with a simple yet transformative approach to the very notion of disability. in qatar, today’s concept of disability seems to be centered on the medical or rehabilitative model. given its commitment, qatar will, no doubt, expand its social model of understanding disability and, ideally, introduce in its framework the principle that persons with disability contribute to social diversity, which enriches and creates a more prosperous society at large. in addition, a thorough understanding of the current legal and regulatory domestic framework, or the textual factor, as we have termed it, is necessary. to that end, we first need to study the main bodies of legislation in order to identify, in depth, the impact of the crpd on the main qatari legislation (civil, commercial, criminal, labor, tax, and procedural law). second, a similar analysis should be made of specific areas of qatari legislation that are critical for the persons with disabilities (e.g. health, health care and biomedical research, employment, social services, accessibility to audiovisual means, travel, and transportation). such a study should be shared with, and receive the input of, the main actors in each sector along with the government agencies involved in guaranteeing and furthering the rights of persons with disabilities. in addition, for the results to be operational, it should have the participation of disabled people themselves. 15 see http://www.un.org/disabilities/documents/specialrapporteur/qatar_2010.doc (last accessed december 10, 2015). the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 15 http://www.un.org/disabilities/documents/specialrapporteur/qatar_2010.doc p. rodríguez del pozo, m. c. barranco avilés, khalid al ali, r. de asís roig on this basis, a number of realistic, constructive proposals should be devised exploring ways to reconcile internal law and the mandate of the crpd, without deviating from qatar’s heritage and religious traditions. the value of this study and its ensuing proposals will patently be to enable the evolution of national legislation to meet qatar’s international commitments and further the protection of people with disabilities. it will also become a valuable tool to reaffirm qatar's leadership in the region in matters of human rights and human development. the qatari population at large would benefit from this kind of work since it ultimately could help integrate a group of people ‒ people with disabilities ‒ whose contribution to the country's human capital can be of high value, in a context of an increasingly complex, diverse global 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(2002), eds. human rights and disability: the current use and future potential of united nations human rights instruments in the context of disability. geneva: office of the united nations commission for human rights, united nations. romañach, j. and palacios, a. (2006). el modelo de la diversidad. madrid: diversitas‒ aies. stein, ma. (2007). disability human rights. calif law rev., 95. the age of human rights journal, 9 (december 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n9.1 17 https://doi.org/10.1080/09687590220148531 https://doi.org/10.1007/978-1-349-24269-6 pablo rodríguez del pozo1f maría del carmen barranco avilés2f khalid al ali3f rafael de asís roig4f from undesired evil to social enrichment: models of disability and human rights isolation and exclusion the medical model the social model and its diversity model variant crpd: the human rights-based approach to disability implementing the crpd in qatar understanding the context understanding the texts (the legal and regulatory framework) the impact of the crpd on qatar's legal system: taking the fast track conclusions references the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 98 feminism and women with disabilities maría laura serra 1 abstract: women with disabilities are doubly discriminated against and socially excluded: through gender and disability. in order to perform an in-depth analysis of their actual situation, it is necessary to understand which models have been able to provide legal and political answers to this issue. hence, the feminist model can be identified, on the basis of which we might elaborate upon its possible ties with the social model of disability. this study shows the correctness of feminist conclusions when dealing with inequality between men and women, but it also proves the inaccurateness of feminism in its approach on women with disabilities. keywords: women with disabilities; feminist movement; disabilities; social model of disability; discrimination. i. preface this scholarly work is aimed at showing the absence of an analysis on women with disabilities within the feminist discourse along with the consequences stemming therefrom. as it is well known, the feminist movement is of a vast, diverse, and multilayered nature. that is why i will refer to two schools of thought, which i consider shall be deemed representative of the movement as a whole as well as closely tied to the human rights discourse: egalitarian feminism and difference-based feminism or simply difference feminism. for that purpose, i will put forward what i consider to be flaws in these feminist strands, and i will attempt to specify the reasons for these shortcomings. i will also try to explain how their outcomes result in discriminatory acts against women with disabilities and in a hindered enjoyment of rights with respect to non-disabled women. accordingly, and through a close examination of how the arguments originated in the feminist grassroots (as well as of the demands which triggered these grassroots' mobilization) giving rise to the feminist theory, both their relevance and their correctness on gender inequality is examined herein. notwithstanding, this is an incomplete analysis to the extent that these arguments do not include women with 1 universidad carlos iii de madrid, spain (lauriserra@gmail.com). this paper was originally published in spanish in derechos y libertades, n º31, june 2014, pp. 251-272. maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 99 disabilities within the group, or better said, insofar as they do not regard them as women. therefore, these arguments shall be subject to a critical study. throughout this paper i will try to elaborate upon this omission, which could be due to a lack of knowledge or a deliberate scheme. along these lines, the said feminist strands analyze the relevant issues both from a human rights outlook and a women's rights and rights of persons with disabilities perspective. they perform a thorough study of discrimination situations suffered by women with disabilities in the legal and social domains from a joint perspective. i.1. feminist thought. claimed rights despite the existence of various schools of thought within the feminist movement, they all share certain elements and objectives. in this connection, and regarding women's rights in the contemporary world -both socially and legally speaking-, these schools of thought coincide to a great extent when censuring male domination. similarly, they agree on the meaning of the term patriarchy or that of the sex-gender system, 2 set forth in the 1970s feminist theory: "patriarchy is not an essence; it is a social organization or a set of consistent practices which create a distinct material and cultural setting to foster its continuity" (puleo, 2000). in this connection, it shall be understood that the aim of the feminist movement is to eradicate this patriarchy and to pursue equality between men and women. however, at different points in time the feminist movement has had different projections, and its claims have stemmed from different political theories and from certain elements which shaped a given group at a given moment in time. in this vein, we 2 as it happens with many other terms, there is no agreement on the use of the notion of patriarchy within the feminist movement. in fact, it is a term which has been severely criticized since it was used by radical feminists such as millet or firestone. in this vein, i assume jónasdóttir's definition, who states that "patriarchy has an adequate abstraction degree as for general theory, [and thus] this term shall not be expected to provide specific details as for how a patriarchal society works (…). however, it provides an adequate prior framework in order to know how to inquire about the given social reality in each case." some feminist theories prefer the `sex-gender system,´ this meaning any sort of gender organization, not necessarily an oppressive or a hierarchical one. a good example is provided by celia amorós, who considers patriarchy to be a synonym of sex-gender system (amorós, 1992, pp. 41-58). in order to further elaborate on this, see puleo (2000). feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 100 can talk about pre-modern feminism (which comprises the first claims from "controversial feminists"); modern feminism (starting with poulain de la barre's work along with french revolution women's and feminist movements which gave rise to the great social movements of the 19th century), and finally contemporary feminism, by means of which the 60s and 70s neo-feminism along with the most recent trends is examined. 3 the analysis performed in this paper will be based on contemporary feminism, on the basis of egalitarian feminism, both in its liberal and radical strands -which originated in the united states-, and on the basis of difference feminism, which flourished in europe, particularly in france and italy. the reason for this choice is that these two strands are the ones that best encompass the relevant ties between feminism and human rights. it must be clarified that not every theoretical contribution from these strands' scholars is examined herein. in fact, this paper highlights the most significant insights by means of a general assessment of these thoughts, which provides a good background for this work's theses statements. according to beltrán pedreira (2001), the traditional distinction between the public and private spheres is challenged by means of a general feminist outlook. this is because the notion of a private sphere operating outside government's intervention as well as the alleged government's neutrality "simply accounts for a fictional construct which is very far from the traditionally set forth regulation and legal overview of family and reproduction. the said traditional regulatory framework has simply strengthened the patriarchy which was already in place." in this vein, liberal feminism focuses on removing all legal barriers (sánchez muñoz et al. 2001). this school of thought aims at putting in place "gender-blind regulation" 4 (beltrán pedreira, 2001) and as a result, they called for a greater 3 classification performed by de miguel (2000). 4 this term is used by beltrán pedreira. this idea was first put forward in the united states circa 1982, to the end of the passing of a constitutional amendment declaring sexual equality ("equality of rights under the law shall not be denied or abridged by the united states or by any state on account of sex."). they maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 101 female representation in the legislative and executive bodies. this claim gave rise to another main goal of liberal feminism: the incorporation of women to public life, companies, trade, education or politics. in accordance with this strand, gender inequality is due to an unfair rights and opportunities allocation. liberal feminism is characterized by its definition of an inequality situation and by its advocacy of relevant reforms up until equality between men and women is accomplished (de miguel, 2000). however, the authors do not want this feminist approach to be in connection with a classic and traditional liberalism, 5 since it goes "far beyond many liberal constructions in its approach and objectives" (sánchez muñoz et al. 2001). radical feminism does not even examine the public-private distinction; it asserts that inequality is present in both spheres. this school of thought took care of women subordination situations, comprising oppression in marriage along with sexual oppression by means of prostitution, pornography, pro-life regulation, lack of property rights and sexual violence. every group of women stemming therefrom sought social awareness, and to that end they protested and started a struggle for a change in sexual domination structures (beltrán pedreira, 2001). generally speaking, radical feminism stressed the importance of the psychological dimension of oppression 6 (young, 2000): "it asserts that formal equality schemes are not enough in order to put an end to patriarchal domination, the origins of which can be traced back to the sexgender system. on the basis of this strand, it can also be asserted that equality shall only be achieved by dismantling the foundations of this sex-gender system" (barranco avilés, 2013). in this connection, silvina álvarez states that "from this perspective, feminist analysis becomes driven by the notion of patriarchy, understood as the male sought neutrality in the legislation, without taking into account gender, as well as attaining a greater female presence within the executive and legislative bodies (beltrán pedreira, 2001, p. 94). 5 barranco explains that the abstract right holder construct performed by liberalism "in the collective imagination matches a middle-class, heterosexual, white, economically, physically and socially independent white man." see barranco avilés (2011). 6 young, when explaining the concept of oppression, breaks it into five categories: exploitation; marginalization; powerlessness; cultural imperialism and violence. at the same time she highlights that oppression is a group condition, and in that regard she points out that oppression entails great injustices suffered by certain groups due to certain unaware people's reactions, who despite their good intentions, act driven by cultural stereotypes. in order to further elaborate on this subject, see: young (2000, p.71). feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 102 domination system which unavoidably entails women subordination" (álvarez, 2001). as opposed to egalitarian feminism approaches, difference feminism is a selfproclaimed advocate of sexual differences. this strand defines itself as a group of women which "highlight typically feminine features, roles and attitudes" (de las heras, 2009). hence, "it establishes a women liberation agenda towards a true female identity, leaving aside any reference to males" (cavana, 2000). gilligan 7 showed through a comparative study of men and womenthat from a very young age, males and females give different responses when faced with the same problems. in this connection, this authoress explains that there are two different ethics on the part of women and men: a female behavior, where responsibility and interdependence are strongly expressed, with a tendency towards more relational behaviors and a lack of jealousy. she also pointed out that the male moral conduct is grounded on the notion of rights, the entitlement of which shall be construed in relation to "a hypothetical impartial justice, which is also distributive and equitable." along these lines, the authoress outlines a feminine ethic of care, rooted in the absence of violence and in the willingness to help others 8 (álvarez, 2001). in a nutshell, these feminist strands' aims can be differentiated from each other by the role they assign women within society. on the one hand, there are some schools of thought fostering the "masculinization" of women in order to integrate women in socio-political structures created by males in accordance with their features and specific needs (egalitarian feminism). on the other hand, difference feminism advocates for a philosophical construct rooted in a cultural or group identity. 7 carol gilligan is an american feminist, philosopher and psychologist, whose studies took place after nancy chodrow´s (feminist, sociologist and psychoanalyst). gilligan reinterpreted freud's oedipus process, and explains that males and females reach their gender identity in distinct manners, and that the way in which men and women relate to their mothers is clearly different. similarly, chodrow asserts that there is a different identity development between men and women, which leads to large differences when entering into personal relations. "women's self-perception tends to be as people tied to others by some sort of continuity linkage, by sympathy, closeness and affection. contrarily, males tend to be distant, aggressive and selfish in their personal relations." 8 in this connection, gilligan elaborates on what she calls an "ethic of care regarding affection, sensitivity and altruism, as opposed to men's ethics based on aggressiveness, competition and selfishness." maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 103 the feminist movement, in order to find a place for women within society, takes as a starting point the existence of a true male domination enforced through a patriarchal system. however, it does so within a given cultural context, which results in the impossibility of including women with disabilities within those theoretical grounds. as barranco avilés (2013) declares, "feminist movements have homogenized women's image and have focused on a certain kind of woman, preferably western women." along these lines, palacios explains that "in broad terms, feminism has adopted a dominant woman pattern, which leaves women with disabilities aside. thus, women with disability have been included in sub-groups designed for excluded women." 9 ii. women with disabilities within feminism from this paper's standpoint, it is relevant to understand why women with disabilities were excluded from the feminist movement. in this section i will try to show how feminist thinking, which has been critical with the social structure in place, takes for granted the irrelevance and invisibility of women with disabilities in this social structure, aiming for the acknowledgment of a series of rights using a methodology (a scheme) thought for and adapted to the said rights. ii.1. invisibility invisibility can be considered as one of the main causes giving rise to the lack of analysis on women with disabilities. from this outlook, it is highlighted that "gender and disability have been regarded as independent and isolated elements by the current women and disability movements, both of which have been very far away from each other" (alvarez ramirez, 2012). i only intend to comprise feminist thought with 9 this idea was taken from a. palacios, in conferencia internacional 2008-2013: cinco años de vigencia de la convención internacional sobre los derechos de las personas con discapacidad. comité español de representantes de personas con discapacidad (cermi) and instituto de derechos humanos bartolomé de las casas, universidad carlos iii de madrid, madrid, may 2013. feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 104 respect to women with disability, leaving aside the thorough and in-depth analysis performed by the social model 10 on disability and its connection with women. the fact that women with disabilities are invisible to feminism and its strands is due to different social and cultural factors, which historically have awarded women with disability a vulnerable role within society. this perception of women with disabilities as dispensable and dependent on others is conducive to an imprisonment, a reductionism concerning their position as legal subjects which at the same time leads to oblivion and invisibility. the existing relationship between vulnerability and invisibility further increases the impact of stereotypes and assigned roles. within our societies, there is at least a double discrimination and social exclusion for women, on account of their gender and due to their disability, and this places them under one or more (as the case may be) particularly vulnerable social groups. in the words of barranco "the vulnerable nature of human beings is not dependent, or at least not totally, on their personal features. it is society's development what can make people become vulnerable" (barranco avilés, 2011). in this vein, sheldon illuminates much of our subject matter when she asserts that women with disability are portrayed within society as needy, dependent and passive, all of them typically feminine features, whilst they are construed as incapable of assuming feminine roles (sheldon, 2004). at the same time, barranco points out that when this dependence becomes "official," 11 it leaves room for arbitrary domination, and that is when rights become vulnerable. 10 "there are two main premises as for the social model. in the first place, it is alleged that the causes leading to disabilities are neither religious nor scientific, but at least predominantly social. pursuant to this model's advocates, disabilities are not due to individual constraints, but the actual limitations of society when it comes to providing adequate services and duly ensuring that disabled people's needs are taken into account as for social organization. regarding the second premise -which refers to the utility for the communitypersons with disabilities are construed as people who have a lot to contribute to society, or at least that their contribution would be as useful as that from the non-disabled. moreover, assuming as a starting point that every human life is equal in terms of dignity, from the social model it is claimed that the contributions to society by persons with disabilities are closely tied to inclusion and difference acceptance" (a. palacios, 2008). in order to further elaborate on this, see this authoress' work. 11 this means that for certain subjects (for instance, the case under examination here: a disabled woman) legislation limits the person with disabilities' legal capacity and thus his or her autonomy as for decisionmaking. see barranco avilés (2001). maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 105 sheldon (2004) accounts for a postulate the basis of which is that women with disability have not been caught by feminist expectations and objectives. in her view, non-disabled feminists are wrong when they are oblivious to the fact that women with disabilities can greatly contribute to feminist thinking, and goes as far as to consider that this movement supports points of view which are prejudicial for women with disability. according to sheldon, the feminist movement frequently declares that solely examining personal experiences shall suffice, experiences such as being "privileged" women, white, non-disabled, and heterosexual, while "marginalized women are overlooked" (barranco avilés, 2001). ii.2. claimed rights in connection with what was stated in the previous section's last paragraph, there is a second cause leading to the absence of women with disability in the various feminist strands, and it has to do with the objectives (claimed rights) sought by each of these schools of thought. as it is well known, the main objective pursued by the feminist movement is the empowerment of women and gender equality. to that end, feminism seeks to break with the existing inequality between men and women carefully crafted and implemented for generations by the patriarchal society itself. for the purpose of removing these barriers, each and every feminist strand focused on several goals stemming from their respective ideologies. according to these schools of thought, these goals were meant to putting an end to that sexist fragmentation. a careful examination of the particular demands and qualms of the contemporary feminist movement points to a twofold conclusion. on the one hand, the obstacles encountered by non-disabled women are, to a greater extent, similar to those faced by women with disabilities. however, a close study of the said objectives shows an absolute lack of focus on disability, and women with disability are thus forgotten by this discourse. considering this premise, palacios' words become increasingly relevant when she asserts that "the largest obstacles faced by women with disability when trying feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 106 to exercise their legal capacity 12 are related to communication barriers (non-accessibility within the communication process when trying to shape their wishes, needs, and preferences) and, above all, attitudinal barriers, which in some cases include legal barriers driven by preconceptions and stereotypes about women with disabilities; court rulings resulting from legal interpretations based upon biases; absence of trained staff, and lack of support as well as of a gender approach when it comes to the exercise of legal capacity, among many others" (palacios, 2009). a crucial aspect within feminist movement objectives, as well as within disabled women's aims, is related to the exercise of certain individual rights, namely the right to sexuality, reproductive and abortion rights, along with maternity rights. below is a brief analysis of these rights, which fall within a set of issues the focal point of which is domination over women. as kathleen barry has pointed out, "domination over women is politically addressed to specifically feminine features, namely sexuality and reproduction, which are socially and politically constructed as inferior. as women are politically, legally and economically discriminated against, this condition stems from a previous exploitation condition, which takes place in sexuality and reproduction by means of women's bodies" (barry, 2005, 1998). ii.2.a) sexuality sexuality, both as an objective and a right claimed by women, was ignored by liberal feminism. meanwhile, radical and difference feminism dealt with it, yet not in the same manner. the first refers to women sexualization as a form of oppression deeply rooted in the patriarchal system. this strand of feminism asserts that prostitution and pornography account for forms of oppression, caused by patriarchal domination. barry refers to a "colonized territory" when she describes a woman's body and the 12 asís explains that legal capacity "shall be understood as a result of [legal] personality and leads to acknowledging the possibility of being entitled to rights and subject to obligations. de asís roig, 2012. in addition, bariffi points out that "the essence of the concept and the rationale behind human rights entails considering that every person shall be awarded certain rights with no constraints nor discrimination of any kind." in this connection, see the work by f. bariffi, 2009. maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 107 oppression to which it is subjected. this same authoress explains that men, since they are in need of sexual experiences, look for women and frequently violently use them as a mere item. barry compares men and women and concludes that men can sometimes be used for sex, but "in the light of sexualization, male bodies are not sexualized bodies." by means of this last statement, the authoress addresses the social construct made about sex. this construct defines sex as something inherently feminine and limited to a female body, which is reified. she clarifies that "prostitution is the essence of women's sexualization, because in its context, sexualized bodies in societies -every woman's body is indeed sexualized-, only need to be present and available to act on them to the end of having sex: particularly, the client's sexual pleasure or fantasy." barry develops this idea and clearly differentiates between male and female sexuality. she asserts that men's sexuality has been construed "as a must, as a necessity," whilst women's has been traditionally regarded as a sort of "social identity," thus turning women into something or someone totally sexualized. women's image becomes completely blurred and women are subsequently assigned a role after their reification has been performed. in barry's (2005) words, this power exercised over women is "institutionalized" in the form of prostitution, pornography and marriage. within difference feminism, only a few cultural feminists tackled this subject. susan brownmiller, germaine greer, andrea dworkin, and mary daly, believe that male sexuality is aggressive and potentially lethal, as opposed to female's, which focuses on personal relations. they also think that women are morally superior to men, that feminine oppression stems from the removal of women's essence, and for that reason it is crucial to highlight the existing differences between both sexes as well as to become lesbian, insofar as "heterosexuality shall be censured due to its closeness to the masculine world" (osborne, 2005). these two social movements, which aimed -and still aimat representing women's interests, have placed women with disabilities and their relation to sexuality on an outer layer, while these women have been socially disadvantaged with respect to any other woman. the truth is that women with disability are considered, exclusively feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 108 because of their disabilities, as (something or someone) asexual. this statement, deeply rooted in the collective imagination, derives from an existing stereotype, the arguments of which are clearly discriminatory, since they are grounded on the actual disability. certain consequences are derived as for the situation of women with disability from this reflection and the outcomes of the said bias. at the same time, this reflection leads to the lack of theoretical support of the feminist movement itself. according to palacios (2012), "disability conditions are often negatively considered, in order to justify the impossibility of exercising [certain] rights. nowadays, women with disability are discriminated against on the basis of disability, as their sexuality is underrated, as well as their right to exercise it and thus also their very personality is underrated. again, the authoress points out that "barriers encountered by women with disabilities when they attempt to exercise their rights result from the design of a society exclusively thought of for a standard person (usually a non-disabled man)" (palacios, 2012). the aim here is, from human rights, disability and social model's perspective, designing society for all: for every man and woman. 13 notwithstanding, this deeply rooted understanding of society is due to stereotypes and leads to diverse ways of abusing women. simply acknowledging them as dependent persons or the family itself 14 creates an overprotection mechanism that brings along the "infantilization" of women with disability, who are dressed, undressed, and taken care of as if they were children. since women become used to this practice and since they do not know the implications of making decisions about their own bodies (we shall recall that their autonomy is removed), it gets to the point of being unable to tell the difference between a situation in which a given woman is being touched as a result of a medical examination or a situation of abuse (villaverde, 2010). this 13 for an in-depth analysis of universal accessibility and reasonable accommodation, see the work by de asis & palacios (2007). 14 it shall be clarified that when i refer to family or relatives i also refer to (or maybe i just refer to) people with no blood ties, but who are part of a mutual assistance scheme, aimed at providing care. this may comprise friends, neighbors or teachers who could have developed some emotional and support bonds with the person in question over time. maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 109 inability to tell the difference results from the creation of a social environment. it is the answer to what society resolves about them: we are talking about people who cannot or must not decide over their own bodies and sexual desires and who are actually treated as asexual people or just as items which can be used for sexual purposes. 2.2.b) control over their bodies 15 sterilization is a medical procedure by which any person is deprived of the power of reproducing. a forced sterilization takes place when this procedure is performed on a person without his or her consent. forced sterilizations are performed on people without their consent, and they are normally driven by eugenic, punitive or forced contraception purposes. concerning women with disability, sterilizations are performed to the end of preventing them from getting pregnant (forced contraception), since they are considered to be legally and socially incapable of parenting. this practice may be set forth by a state's law, 16 i.e., it may be imposed on women with disabilities unknowingly, or it may be requested before a court by the woman's representative, to the extent that the latter shall give its consent replacing the woman's freedom and autonomy with regards to the decision of her own body. in this connection, palacios (2012) puts forward that "women with disability are constrained by legal barriers in those countries in which it is legal to replace the woman's decision-making abilities involving her right to form a family." hence, barranco points out that "regulations are sometimes aimed at safeguarding the rights of people who are considered to be vulnerable. many policies grounded on the rights to be granted in line with the specification processes have been drafted accordingly. notwithstanding, a safeguarding policy which does not take into account the freedom of action of the persons addressed 15 the decision over the own body comprises both reproduction and abortion. in this chapter only reproduction will be dealt with, excluding abortion from this study, since the issues to be examined herein are previous to it. 16 in this regard, the international committee on the rights of persons with disabilities has played a role since in september 2011 urged spain to eliminate this practice because it was contrary to the crpd. see committee on the rights of persons with disabilities, on the sixth session, 19 september 2011, crpd/c/esp/co/1, review of the reports turned in by the states parties in virtue of article 35 of the convention, final remarks of the international committee on the rights of persons with disabilities, par. 37 and 38. text available in: http://www.convenciondiscapacidad.es/noticias_new.html. see also villaverde (2012). http://www.convenciondiscapacidad.es/noticias_new.html feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 110 thereby shall not be considered respectful or far less grounded on human rights" (barranco avilés, 2001). it is mostly women with intellectual and mental disabilities who are subject to this practice, and it is often their family members -who act as their representatives and thus replace their legal will 17 -, who request judicial authorization to perform this practice. in this vein, palacios (2012) asserts that "there is a common axis which allows for the constant violation of disabled women's rights, arising from the consideration of women with disabilities as weak, asexual and childish -subject to protection-, which at the same time leads to the replacement of their will, or even in previous measures, which prevent women themselves from finding out about their actual will (since exercising one's will is a learning process to which many women with disability have no access).” the problem here is that the family does not get involved in the woman's willingness to have sexual relations or in the right time for her to have them. contrarily, what is thoroughly assessed, and thus curtailed, is the right to be a mother. from this perspective, villaverde states that there are "mainstream preconceptions about sexuality of girls and women with intellectual disability, on the basis of which forced sterilizations and abortions are grounded. these practices are enshrined in healthcare protocols regarding sexuality and reproduction, which were drafted with a total disregard for the applicable human rights law. 18 furthermore, the drafters of these protocols were completely unaware of these women's problems and they did not listen 17 quinn sets forth that "there is nothing inherently wrong in making decisions by replacement, inasmuch as this substituting decision-making process reflects my own will as well as my preferences (…). instead of reproducing the person's will and preferences, there is always a conscious ignorance of his or her will and preferences, even when those are totally despicable" (quinn g., 2012 p. 42). bariffi explains that "the support system is featured by placing the final decision in the disabled person, regardless of the necessity of a third party's intervention to validate the decision in question. this third party has to give advice, contention to help for the person with disabilities." in order to further elaborate on this subject, see: bariffi f. (2009). 18 forced sterilization is considered as a crime against humanity as well as a serious criminal offense. in this connection, one of its main features is that there is no need to ground the decision on a medical treatment, since regarding women with disabilities as the dominant approach is the medical model, it is often said that it is for the woman's best interest, thus allowing to perform the medical treatment without having it framed within a criminal offense. for an in-depth analysis, see: palacios, (2008). maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 111 to women with intellectual disability who are subject to the said violations. all of this takes place at the guardian or parent's request, who is ‘duly representing his children’ and allegedly acts ‘with the best of intentions.’ these are simply paternalistic expressions which put social awareness at rest whilst violating human rights awarded to the most vulnerable people in society (articles 1, 3, 12, 13, 23, and 25 of the un convention on the rights of persons with disabilities)" (villaverde, 2012). the foregoing is framed within gender inequality in the context of a patriarchal system. in other words, it is the man who decides whether women are able to conceive children (men with disability are not subject to vasectomy procedures) and who, by means of a standardization scheme, drafts a legal mechanism to the end of curtailing this right. this hypothesis is the framework for every feminist objective; it is the focal point for every claim arising from this movement. however, this situation cannot be found in its discourse. i am working with the simplifying proposal on which the absence of women with disability in the discourse is grounded, because the feminist movement is not identified by this proposal. moreover, i consider sheldon (2004) to be right when she asserts that it may be inevitable for non-disabled feminists to share all of society's negative attitudes towards people with disability as long as we live in a disabled society. the feminist movement's keystone is no other than reproductive freedom. in this connection, davis (2004) highlights that in the early 20th century feminism's main demands revolved around birth control; these claims were issued by white, nondisabled, middle-class women. as for disadvantaged women, the movement adopted a eugenic approach towards the attainment of demographic control, whilst it disregarded the individual right to birth control. hence, throughout this century, forced sterilization of women with disability became mainstream, and these abuses still take place today (hubbard, 1990). therefore, it must be concluded that reproductive freedom shall not be considered solely as the right to not being a mother, but also as the right to maternity. feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 112 some situations of discrimination faced by women with disability can be inferred from this holistic outlook performed on the objectives pursued by mainstream feminism. as young (2000) rightly points out, feminist general values also include social conditions which define injustice: oppression, the institutional barriers curtailing an unhindered development of personality, and the domination which prevents selfdetermination from taking place. ii.3. methodology as we saw before, the absence of women with disability in the feminist movement discourse can be due to three different reasons. in the first place, it could be due to the "invisibility" of women with disabilities. secondly, it may stem from a total unawareness of the fact that both feminism and disability movements have in common almost every objective. in the third place, the said absence may be willful, and could be triggered by a methodological reason put in place to achieve the aims pursued. in fact, we are confronted by schemes, which are based on a series of carefully planned actions over time by the movement itself. in the previous section we concluded that women with disabilities were not part of the objectives foreseen by the various feminist movement strands. through this paragraph we try to find out the reasons why we reached the abovementioned conclusion. to this end, we analyze in detail this work's hypothesis, which can be summarized in a homogenization of the feminist movement, which leads to the absence of women with disability in the feminist discourse. "gender-based discrimination has very distinct features. in addition to the fact that women are not a minority (they actually account for more than half of the population), it is frequent to see how discrimination against women takes on a protection connotation (this sort of discrimination allegedly has a benign nature)” (barrère unzueta, 2003). notwithstanding, in the legal domain, discrimination can only be defined as a difference in treatment, yet not in status, since defining the maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 113 latter necessarily entails talking about subordination or, in the words of añón roig, "systemic discrimination." in other words, it is strange to the legal notion of discrimination, and "accounts for a sort of inequality stemming from the impact of social values, which at the same time have arisen from the false universalism embodied in the drafting processes of the recognition of rights." reference is made to those situations of social inequality, subordination or domination, in which it is impossible to individualize a given conduct nor a discriminatory treatment (in legal terms), can be identified (añón roig, 2010). in light of all the foregoing, the discursive analysis of each of the strands becomes relevant. along these lines, asís roig (2013) talks about a supporting discourse which puts forward two kinds of arguments, the so-called "situation argument" and the "identity argument." from this perspective, asís asserts that pursuant to difference feminism, the claimed rights are grounded on "distinct feminine features which identify women, and not necessarily on the discrimination situation suffered by them." contrarily, in accordance with egalitarian feminism (in its two schools of thought: liberal and radical egalitarian feminism), "the justification of rights comes from the discrimination situation faced by women, and not from the possible existence of distinct feminine features" (de asis roig, 2013). barrere unzueta (2003) points out that the applicable law shall be subject to an in-depth examination. in addition, she demands a "shift in the legal notion of discrimination (based on differences in treatment) towards the concept of subordination (based on differences in status)." furthermore, feminism censures specific antidiscrimination legislation, on the basis of its severe deficiencies regarding the very understanding of discrimination while pointing out the existing structural and social inequalities (añón roig, 2010). discrimination against people with disability results from a social construct and a power relation, just as gender-based discrimination. "persons with disabilities see how their autonomy is curtailed, leaving them as mere passive right holders instead of legal feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 114 subjects" (cuenca gómez, 2012). "disability is an evolving concept, (…) as well as a cultural notion, which experiences changes between cultures and societies" (palacios, 2008). therefore, its interaction with the environment is essential (serra, 2013), i.e., disability only arises when social factors account for a true obstacle for people. the language used by the reports of the committee on the elimination of discrimination against women can also be discriminatory 19 when dealing with genderbased discrimination from a protective outlook. on the basis of this parameter, the committee confers women with disability the same status as that awarded to "elderly women," and it uses a stereotyped language to address the first: the committee declares that women "suffer" disabilities and are in need of "special attention." language is an ideological instrument of power and in a context in which women with disabilities are discriminated against on account of their gender and because of their disabilities, such leniency in the language use shall not be permitted, since language "does not operate in the vacuum, but it is used in a given context" (halliday, 1982). therefore it is dangerous to continue using a stereotyped language, the content of which is driven towards subordination in the surrounding reality. vulnerable groups put in place, by means of their movements and grass roots, certain schemes and tools aimed at putting an end to the existing structural discrimination 20 in order to be able to develop their personality on an equal footing with every other member of society. regardless if we are within a legal culture (the analysis performed herein is meant to be purely scientific), when we find ourselves in the equality and non-discrimination arena we notice several differences between feminism and the disability movement concerning the tools to be used. 19 report from the committee on the elimination of discrimination against women 37th session (01/15 to 02/02 2007) 38th session (05/14 to 07/01 2007) 39th session (07/23 to 08/10 2007) general assembly 62nd official document supplement no. 38 (a/62/38). 20 añón roig, following vandenhole, explains that structural discrimination shall be understood as a "sort of inequality stemming from the influence of dominant social values stemming from the able, heterosexual male model, while it shows a prevalent race, religion and language status" (añón roig, 2010, pp. 127-162). maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 115 i consider these differences to be due to both movements' starting points. the perspective adopted in order to put an end to the said barriers differs from one discourse to the other. the feminist movement, understood as a group discriminated against in its various strands, is based on homogenizing a given standard. egalitarian feminism's demands revolve around the aim of total equality between men and women, in the literal sense of the term, on the basis of an assimilation ideal, 21 as well as "making sexual equality dependent on the removal of every gender-based barrier" (mosquera andrade, 2006). it might seem that being on an equal footing with respect to the enjoyment and awarding of rights means being equal in the remaining human and social features, but the difference is a merely descriptive term, and as ferrajoli points out, that difference is part of equality. pursuant to young (2000), difference feminism "has regarded self-organization and the assertion of a cultural and group identity as a better strategy in order to be empowered and participate in the dominant institutions." in this connection, this strand of feminism defines women unlike egalitarian feminism. its standard is no longer a white western male, but the "perfect" woman, characterized by certain features. the philosopher michael sandel (2007), when referring to genetic engineering, puts forward a set of ideas which i consider to perfectly fit this work. he points that "it is somewhat tempting to think that designing (…) ourselves in order to succeed in a competitive society accounts for our freedom. however, changing our nature to fit in the world -and not the other way aroundis the greatest loss of freedom possible. it keeps us from critically reflecting on the world and appeases our impulse towards social and political improvement." this is exactly the subject of the new paradigm brought by the social model of disability, when it establishes that "the causes of disability are not 21 this ideal of justice is analyzed by i.m. young (2000). feminism and women with disabilities the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 116 individual but social, and particularly due to the way society is shaped" (palacios, 2008). in this connection, the disability movement does not want to equal the disabled to the non-disabled concerning physical, mental, psychic, mental or sensory abilities. the aim is making differences part of human reality (which is the same thing many feminist movements do, yet not addressing disability). the goal is not to assess people's value on the basis of their social utility (palacios, 2008). their struggle is performed under a perspective which clearly differs from that of egalitarian feminism: they do not want to be equal (literally speaking) to non-disabled people. they claim to be different, highlighting that because of this they shall not be deprived from tools to develop their autonomy nor this should lead to discriminatory actions. iii. closing remarks women with disabilities have not yet solved their human rights generalization process (de asís roig, 2010). young points out that "an understanding of the legal system which challenges institutionalized domination and oppression shall provide a vision of a heterogeneous public sphere acknowledging and asserting group differences." similarly, young states that "cultural imperialism consists in making a group invisible while labeling and stereotyping it. (…) thus, those who subject to cultural imperialism become invisible subjects, they lose their condition of people with own perspectives and experiences, with specific group interests. however, at the same time, they are labeled and petrified in a negative mirror existence, deviated from the dominant standard. dominant groups do not need any self-awareness; they play an unlabeled, neutral and apparently universal role" (young, 2000). the situation faced by women with disability is due to a series of factors. this work accounts for my attempt to show how a good part of feminist thinking has greatly contributed to this situation. notwithstanding, this same way of thinking has led to the recognition of women's rights by using arguments and perspectives which are also maría laura serra the age of human rights journal, 5 (december 2015) pp. 98-119 issn: 2340-9592 117 applicable to women with disability. that is why it is necessary for these discourses to get intermingled as well as to insert the disability social model's approach in the feminist movement. references alvarez ramirez g., (2012), igualdad y no discriminación. in pelaez a. and villarino p. 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(coord.), práctica clínica y litigación estratégica en discapacidad y derechos humanos. algunas experiencias con la realidad, madrid, dykinson. sheldon a. (2004), women and disability. in swan j., french s., barnes c and thomas c. (eds.), disabling barriers-enabling environments, london, sage publications. villaverde m.s. (2010), “capitulo capacidad jurídica” in ciclo documental audiovisual diversidades, [online] http://ciclodiversidades.blogspot.com.ar/p/videos.html [accessed: february, 2014] young, i.m. (2000) la justicia y la política de la diferencia, translation to spanish by s. álvarez, madrid: ediciones cátedra. http://ciclodiversidades.blogspot.com.ar/p/videos.html social rights in the face of the crisis. reflections on the spanish case fernando puzzo1 abstract: spain and many european countries are going through a critical stage that endangers the achievements of civilization and protection of social rights which are the standard of the constitutionalism of the social-democratic systems after the second world war. the emergence of the economic and financial crisis and its impact on member states, especially in regard to the realization of the rights and, in particular, the social ones, impose a critical reflection since on the european scene there is not a shared concept. in the spanish social and democratic rule of law, many of the social rights are placed in chapter iii of title i as guiding principles of social and economic policy. the analysis of this regulatory body of the constitution is problematic insofar as it raises the problem of redirecting the content of such rules to legal structures in order to ensure guarantee levels which approximate them to fundamental rights within the framework of a european model of social democracy. the problem of the welfare state (in spain and other european countries) affects the quality of representative democracy. keywords: social rights; welfare state; financial crisis; crisis of contemporary constitutionalism; democracy. summary: i. introduction; ii. the welfare state as the basis of the guiding principles of social and economic policy; iii. social rights as fundamental rights; iv. the content and the legal effectiveness of the rights included in chapter iii of title i of the constitution; v. concluding reflections. i. introduction with the affirmation of the democratic principle, the european constitutional doctrine of the second post-war era, accepting the full legislative nature of constitutions, has highlighted a new state model –social and democratic rule of lawbased on universal suffrage and on the participation of citizens in the formation of the will of the state and, moreover, on the constitutional guarantee of the effectiveness of fundamental rights. beside the original principle of formal equality, the social principle of substantial equality, the consolidation of the tasks of the state and the constitutional provision of new and more extensive catalogs of rights (political, civil, economic, and social) are stated. 1 professor of constitutional law, university of calabria, italy (fernando.puzzo@unical.it). the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 108 fernando puzzo although with different formulas for intensity and latitude for the recognition and for the protection of specific legal situations, it can be said that in the european constitutionalism of the second postwar era a close relationship between advanced conception of democracy, form of state and fundamental rights has been positivized. very differently from how it was sanctioned in the original liberal constitutionalism, such a relationship is done through the expansion of constitutionally protected legal situations and a new interpretation of the concept of freedom, now tightly integrated with that of equality: a concept of equality which considers as unacceptable the differences based on economic and social relationship, i.e. those based on income capacity. finally, in such a view the social rights, along with the classical ones of freedom, are conceived as constitutive conditions of the constitutional principle of equality and, at the same time, of the value of the person and their dignity. however, in the european countries it is not always possible to perceive a positivization of the fundamental social rights as legal situations constitutionally recognized and protected in ways comparable with the so-called negative liberties2. indeed, while civil and political rights are recognized as a common basis of modern democratic states in all european constitutions, only from the constitutionalism after the second post-war era on, with the evolution of contemporary form of state, new fundamental rights, based on the close integration between the notion of freedom and of equality, are stated and as a consequence the social rights appeared. from that perspective, the principles of social justice that inspire contemporary constitutions, by incorporating the "freedom from want"3, implement the right to demand the services aimed at ensuring the individual and the citizen a minimum of security and social justice . referring to their protection, in the constitutional state of the second world postwar, the rights exist by the constitution, which expresses, as known, something more and different from the law of the liberal state, because in the fullness of its provisions it represents "an essential transformation"4 in respect of the previous liberaldemocratic constitutions. in this perspective, where the ius is no longer lex and the rights are no longer a rule set by the legislature, the constitutions establish subjective claims binding the state in the concrete exercise of its power. the contemporary constitutionalism makes a metamorphosis of the sovereignty of the law into the sovereignty of the constitution, thus transforming the fundamental rights into inviolable rights5. 2 cfr. a. saccomanno, “eguaglianza sostanziale e diritti sociali nel rapporto fra ordinamento interno ed ordinamento comunitario” in s. gambino (coord.), costituzione e diritto comunitario. principi e tradizioni costituzionali comuni. la formazione giurisprudenziale del diritto costituzionale europeo, milano, 2002. 3 cfr. n. bobbio, “sui diritti sociali”, in g. neppi modona (a cura di), cinquant’anni di repubblica italiana, torino, 1996. 4 cfr. f. balaguer callejón, (coord.), manual de derecho constitucional, 2008. 5 cfr. g. zagrebelsky, il diritto mite, torino, 1992. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 109 social rights in the face of the crisis. reflections on the spanish case on this basis the "welfare state" is born, which by sanctioning the primacy of politics over economics in the framework of a model of emancipatory substantial democracy, maneuvers the levers of the economic system and becomes promoter of development, pull factor for production and employment according to the standards of a keynesian economic interventionism that allows bridle the capitalism in the network of the democracy. however, it is still possible to perceive the absence of a shared concept on the effectiveness of the rights -particularly the social ones, since many constitutional provisions are different either because of their legal qualification or because of the legal scope of such rights. indeed, some european systems, for example, discipline this matter through general clauses (art. 20 basic law for the federal republic of germany) or through "guiding principles of social and economic policy" (chap. iii ec ), while others -as the italian constitutionprotect the social rights either through fundamental principles or with specific constitutional provisions. although the spanish constitutional catalog of social rights is extended and has the nature of constitutional rights, the doctrine stresses that the jurisdictional forms of their protection are not always the appropriate for subjective rights, as they are closer to those of the "legitimate interests", since between their prevision and their a legislative and administrative “facere” is needed. it can be seen that the degree of effectiveness contrasts with their structure of rights, whose degree of effectiveness appears openly insufficient. although different arguments have been stated (from economic to political constraints, from the capacity of the judiciary to that of the political system), the leitmotiv that perhaps summarizes all of them is that social rights "cost" and the state has serious problems of taxation, whence the complex problems of financial sustainability of rights in general, and the social rights in particular, derives. the question of the cost of social rights refers therefore to the issue of the structure of such rights as well as to the maintenance of the constitutional state. nevertheless, as pointed out by accredited doctrine -but also by the very constitutional jurisprudencethe cost of social rights should not impact on the structure of constitutionally guaranteed rights, so the question of the cost of rights is a false problem since it is intrinsic to all constitutional rights and therefore also to the classic ones of freedom6. moreover, in relation to the question of the legal effectiveness of the so-called programmatic constitutional provisions it seems particularly appropriate to mention the argumentative iter followed by the italian constitutional court7 which can be an example for all those systems which have constitutional guarantee clauses of the rights 6 cfr. g. lombardi, “diritti di libertà e diritti sociali”, in politica e diritto n. 1/1999. 7 specially, sentences 1/1956 and 4/1981. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 110 fernando puzzo or constitutional provisions on substantive equality and dignity of the person. ii. the welfare state as the basis of the guiding principles of social and economic policy the welfare state in spain is fully affirmed in the 1978 constitution8, which proclaims it in the art. 1 by means of the formula of "social and democratic state of law"9. the interventionist role of public authorities that defines the welfare state is found firstly in the art. 9.2 of the constitution, from which the so-called "substantial social principle" (taken from the italian constitutional charter) according to which 'it is for the public authorities to promote conditions so that freedom and equality of individuals and groups to which they belong are real and effective; to remove the obstacles that prevent or hinder their fulfillment and to facilitate the participation of all citizens in political, economic, cultural and social life”. from the letter of the rule that defines the structure of art. 9.2 can be followed, synthetically, that the interventionist dimension of public authorities, strictly speaking, affects three planes of reference: (i) promoting that the conditions for freedom and equality of the individual and the group are real and effective; (ii) the elimination of obstacles that stand to their full enjoyment and (iii) promoting the participation of citizens in the various areas of public life10. the configuration of the social state consists of different regulatory layers, located in different parts of the spanish constitution to which specific functions correspond. it is therefore a complex structure that can be synthesized in an essential way through a series of elements: in primis, as a set of values configured as authentic axiological foundation of the state, together with a number of purposes set in programmatic rules which define the main guidelines that should inform the activity of public authorities; another element is the block of social rights and guiding principles of interventionist policies, included in title i of the constitution, together with a set of instruments and public powers which, in addition to composing the organic part and the autonomic corpus of title viii of the spanish constitution, design the economic standards of title vii; and finally, there are some mechanisms of guarantee and control designed to ensure both the effectiveness of the rights recognized and the effective compliance of the programmatic goals. 8 among others, cfr. r.l. blanco valdés, introduzione alla costituzione spagnola del 1978, torino, 1999 (ult. ed. 2009); m. aragón reyes, constitución y democracia, madrid, 1989 and g. de vergottini, una costituzione democratica per la spagna, milano, 1978. 9 m.a. aparicio pérez, “el estado social en la jurisprudencia del tribunal constitucional”, in g. cámara villar and j. cano bueso (ed. and coord.), estudios sobre el estado social (el estado social y la comunidad autónoma de andalucía), madrid, 1993. 10 f. balaguer callejón, “el estado social y democrático de derecho. significado, alcance y vinculación de la cláusula del estado social”, inn j.l. monereo (coord.), comentario a la constitución socioeconómica de españa, granada, 2002. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 111 social rights in the face of the crisis. reflections on the spanish case from this perspective, social rights are a key element of the constitutional architecture of the welfare state11, in that, since all rights are linked to the previous value of human dignity, there are some social rights that are projected as real life support; thus, only from these rights condition of citizenship can be fully exercised. hence, certain rights such as, education, health and housing, must be assumed as essential elements for access to full status as citizens, so that the different degree of "subjective" enforceability of certain social rights should not involve a their subordinate position, regardless of the economic situation, whether favorable or unfavorable. from the constitutional point of view, in other words, the normative dimension of social rights can be perceived, although their level of guarantee and protection may have a different degree of coverage, depending on their different location in the constitutional text12. from this perspective, assuming that the constitutional text itself includes most of social rights under title i, formally calling them as "rights" both in chapter ii in sections 1 and 2 and in chapter iii -although titled as "guiding principles of social and economic policy", also incorporating certain rights expressly named as suchit can be concluded that from the time the constituent assembly positivizes the rights, they are considered as genuine rights, whose guarantee level generally depends on the provisions of art. 53 sc, which implies that their legal nature cannot be denied13. in short, the fundamental option chosen by the spanish constituent assembly when defining the state ex art. 1.1 sc, is to include the formal and material social clause in combination with the democratic principle and the rule of law. this formulation, overcoming the liberal model, assumes a finalist social function, designed to ensure and safeguard decent living conditions and, therefore, to have the means to meet the needs of disadvantaged subjects. in other words, it reveals a conception of state which leads teleologically the direction through principles of political nature14. the spanish constitution contains provisions legitimizing and guiding the action of the state, so that, in addition to other economic provisions, it determines explicitly rules setting welfare rights as such, others that are projected as directives or mandates to the legislature and others taking the form of statements: in short, a series of rules which, taken together, are fully connected to the principle of substantive equality and therefore to the real and effective equality. 11 j.l. cascajo castro, m. terol becerra, a. domínguez vila, v. navarro marchante (coords.), derechos sociales y principios rectores, actas del ix congreso de la asociación de constitucionalistas de españa, valencia, 2012. 12 j.l. cascajo, la tutela constitucional de los derechos sociales, madrid, 1988. 13 g. pisarello, los derechos sociales y sus garantías. elementos para una reconstrucción, madrid, 2007. 14 l. ferrajoli, “derechos y garantías. la ley del más débil”, madrid, 2004. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 112 fernando puzzo in the very preamble –in which the objectives aimed at ensuring harmonious coexistence with a fair economic and social order, the progress of culture and the economy, ensuring everybody a dignified life– there are several provisions defining the social state. indeed this is also evident in the principle of equality, or rather in its indivisible and material aspects (arts. 14 and 9.2), in the welfare dimension of the rights and, in particular, in the recognition of social rights (for example, the right to education, art 27;. the right to protection of health, art. 43); and also in the benefits of the social security system of art. 41, in addition to the consecration of principles on the action of public authorities in economic and social affairs ex arts. 40, 49, 50, 51, and other provisions. that being so, it should be noted, however, that the core of the contents related to social state are largely in chapter iii of title i, signed with the phrase "of the guiding principles of social and economic policy". the analysis of this regulatory body of the constitution is problematic because it clearly expresses the social dimension of the state. in other words, the problem of redirecting the content of these norms to legal structures in order to ensure guarantee levels similar to those already configured on the principles and contents of the rule of law and democratic state arises. moreover, it should be noted that in fact the exercise and guarantee of all constitutional rights depend on public intervention, in the sense that it applies not only to social or welfare rights, but to a greater or lesser extent, to all civil rights recognized in the constitutions. these, indeed, do not escape the need for positive action by the state, measurable in economic or budget terms, by which to ensure their effective protection, so that ultimately we can say that the rights depend on taxes and therefore their protection always involves a cost for public authorities, also with respect to those rights that enjoy a legal cover at the highest level15, by virtue of the introduction of the so-called principle of budgetary stability -a consequence of austerity policies applied in times of economic and financial crisisin the framework of the supreme constitutional principles that inspire and bind the state action. accordingly, at the constitutional level it is not possible to appreciate immediately a relatively crystallized model of social state, in the sense that the latter rather than expressing a structural reality of the constitutional order, is projected as a teleological imperative and as such, it is expressive of the tension between social, political and economic forces, and this entails different possibilities of development, but at the same time, many contradictions. indeed, the guiding principles, although they are firmly grounded from the point of view of value system and enjoy a significant symbolic power of evocation in relation to the articulation of new bases of the political and social organization, however they do not have the normative density of other constitutional provisions, while their nature is that of guiding principles or directive norms, despite that sometimes they are called rights, whose direct and immediate addressee is not the citizen but the public authorities. 15 s. holmes and c.r. sunstein, il costo dei diritti. perché la libertà dipende dalle tasse, bologna, 2000. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 113 social rights in the face of the crisis. reflections on the spanish case iii. social rights as fundamental rights in the framework of the second postwar constitutionalism, to state that rights such as education, equality, health and housing are essential to the democratic and contemporary concept of human dignity16 is an assertion that can be shared peacefully; an assertion supported by the spanish constitutional court, which in its case law indicates that in the spanish constitution "human dignity is the foundation of political order and social peace”. its legal form is raised to milestone of the constitutional order, needed to build the political order and the social peace. the constitutional concept of human dignity expresses the legal recognition of equality and freedom of all human beings by virtue of being, embodied in those values of the legal order sanctioned in art. 1.1 of the constitution and which are included in the fundamental rights of title i. in addition, human dignity -and related rights of art. 10.1 scis also identified in the field of health, which as underlined by the constitutional court (cc), represents "a value of undoubted constitutional significance"17 of "singular importance"18 as recently confirmed by the jurisprudence of the german constitutional court, whereby the legal obligation would come from the fundamental right to dignified existence, deductible from the human dignity of art. 1 and the principle of the social state ex art. 20.1 of the german constitution (judgment of the german constitutional court of february 9, 2012). as known, therefore these are not "classic rights of freedom," whose negative dimension is manifested in creating a protective barrier against possible illegal interference of the state but rights whose nature is to provide social benefits, that is, rights which obligate the state to guarantee a certain service or a particular good for citizens19. however, at the constitutional level, as already noticed, all rights are not covered by the same legal status, so the problem arises of which are the consequence of this differentiation. in this regard, we should remember that the cc has stated that "the protection of family, health maintenance and adequate and dignified housing, values which together with sufficient social benefits in situations of necessity that must be guaranteed a public social security, are constitutionally enshrined in the arts. 39, 41, 43 and 47 of the constitution, and force public authorities, not only to the deployment of the corresponding administrative action."20 in other words, it can be drawn that for their protection, although these are legal rights, it is not decisive that they may be enforceable before the ordinary judge in the more or less extensive forms established by the legislature, as this argument would lead to give the law the role of to recognize a right which instead preexists it, since it has been foreshadowed in the constitution establishing its existence, letting the law to determine its extent. 16 stc 86/1985, fj 8. 17 atc 96/2011 18 atc 239/2012 19 abramovich and courtis, los derechos sociales como derechos exigibles (prologue by l. ferrajoli), madrid, 2002. 20 stc 113/1989. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 114 fernando puzzo moreover, it should be clear that, regardless of their form, the recognition of these rights in the sc shows the concern of the constituent assembly to put the person and their rights in the center of the legal and political construction of the state. therefore a state that cannot be passive, but on the contrary, considers as a foundation of political order the personal dignity, so that it cannot be indifferent to the social, economic and cultural conditions in which the lives of the citizens operate. in short, a constituted state which is obliged to "promote the conditions so that the freedom and equality of individuals and groups are real and effective." in this regard, the constituent assembly has designed two guidelines because, on the one hand, has imposed on public authorities a specific role which has, given its binding nature, an effectivity of all mandatory and enforceable rights and, on the other, it has foreshadowed the purposes to which public authorities should aim, which retain respect to the latter a wider leeway, and therefore adscribing to the category of the guiding principles. from this point of view, the normative density concerning the compulsory promotion of the liberty and the equality is variable, depending on whether it is a fundamental right rather than a guiding principle. but if we look at the rights mentioned at the beginning, it is evident that the first two, i.e., education and equality, are fundamental rights included in chapter ii of title i sc, while the other two, health and housing, fall within the scope of the guiding principles of chapter iii of the same title, so that the differential legal status for rights and principles refers to the problem of their direct legal effectiveness and, ultimately, to the issue of their virtuality for citizens21. it should be remembered that the constitution is also a legal document22, consisting of several parts, which are binding both for public authorities and for citizens. on this basis, therefore, it is possible to note that the guiding principles of social and economic policy materialize their effectiveness in the democratic state, from their very legal nature, ie from their role of informing principles of the action of the public authorities, whose effectiveness can be controlled both legally and politically. in addition, leaving aside the legal force of the guiding principles which we will discuss below, it should reflect on the direct impact of fundamental rights in the social state23. from this point of view, we can say generally, that fundamental rights and therefore also those with social content, are effective with respect to all public authorities; therefore their normative virtuality depends on the will of the constituent assembly, in the sense that ensuring their protection and effectiveness does not require the action of the legislature, while those with social content (such as the right to 21 l. prieto sanchís, “derechos sociales y el principio de igualdad sustancial”, in revista del centro de estudios constitucionales n. 22/1995. 22 e. garcía de enterría, la constitución como norma y el tribunal constitucional, madrid, 1985, (iii ed.). 23 j.j. solozábal, “una revisión de la teoría de los derechos fundamentales”, in revista vasca de administración pública n. 58/2000. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 115 social rights in the face of the crisis. reflections on the spanish case education or the right to health, which have a different legal status) require the interpositio legislatoris and the administrative facere in order to develop their content. from this perspective, the original question about welfare social rights as fundamental rights embodied in the various constitutions arises, together with the classic fundamental rights, so, due to their different foundations, fundamental social rights are connected with the realization of the principle of real and effective equality, while the classic fundamental rights are linked to the achievement of the principle of freedom. this doctrinal debate, today, refers to the issue of justiciability of social rights and that of the constitutional protection of their essential content which, from the spanish perspective, is linked to the legal status of fundamental rights as justiciable rights not only against the administration, but also against the legislature, so that their protection includes also the guarantee of a minimum content restricted, plus an equal recognition. from the subjective perspective, fundamental social rights are protected by the ordinary courts, through a preferential and summary process and, where appropriate, by the constitutional court. in summary, therefore, we can say that they are subjective rights endowed with a particular resistance against the legislature, as the binding nature of fundamental rights makes them spaces of freedom and welfare resistant to any possible type of impairment. hence the legal nature of fundamental rights is extensible to fundamental social rights, so the welfare content of these rights become mandatory and therefore are enforceable, regardless of social, economic and political circumstances. regarding social rights within the scope of the principles, their content assumes the function of informing the positive legislation and judicial practice, and so they can qualify as rights strictu sensu, they require legislative implementation and therefore are enforceable before the judicial authority. in conclusion, taking into account the different legal status, it can be stated that through the fundamental rights the constituent assembly configures a part of the social state and through the principles prefigures it, forwarding to the legislature its final configuration. iv. the content and the legal effectiveness of the rights included in chapter iii of title i of the constitution as already stated, it is necessary to underline that the norms contained in chapter iii of title i of the constitution are quite heterogeneous since it is possible to distinguish norms that identify rights expressly called as such24, in addition to duties25. other provisions are mandated to the legislature, both in terms of punitive provisions of 24 as, for example, the right to the protection of health ex art. 43.1, or the right to culture in art. 44.1, or the right to decent housing in art. 47, and also the right to enjoy an adequate environment in art. 45.1. 25 as, for example, the duty of parents to attend their children (art. 39) or the duty to protect the health (art. 43.2) and the duty to protect the enviroment (art. 45.1). the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 116 fernando puzzo administrative and criminal relevance26, and as specific mandates27. finally, there are norms that set principles designed to guide the actions of public authorities in order to achieving general purposes, which by stating their programmatic nature are fully consistent with the meaning of the heading 'guiding principles' and which however can be differentiate by their vagueness and incompleteness regarding means, conditions and requirements, as can be seen emblematically in the content of art. 40.1, which states that "public authorities shall promote favorable conditions for social and economic progress and for a more equitable distribution of regional and personal income within the framework of a policy of economic stability." however, in order to systematize their content, guiding principles can be grouped taking into account the objectives pursued and which are subject to protection. firstly, we can distinguish guiding norms establishing objectives or general purpose of state action; for example, it is significant the formulation linking the public authorities to the promotion of "the favorable conditions for social and economic progress and for a more equitable distribution of the regional and personal income within the framework of a policy of economic stability" with the intention of achieving full employment oriented politics in art. 40.1, which, as noted by the constitutional jurisprudence, in the collective dimension is combined with the right to work ex art. 35.1 sc28. another example of guiding norm of general purpose is in art. 44.2 sc, according to which "the public authorities shall promote science and scientific and technical research in the general interest", developed by the legislature by law 13/1986 of promotion and general coordination of scientific and technical research. along with this type of regulations, there are guiding norms on the protection of certain goods of general interest, among which the content of art. 45.2 sc, which states that "the public authorities shall ensure the rational use of all natural resources, in order to protect and improve the quality of life and to preserve and restore the environment, relying on the indispensable collective solidarity". with this norm the constituent assembly states a mandate to the public authorities intended to protect the environment, combining harmonically the rational economic use of natural resources with environmental protection. these constitutional purposes aimed at protecting the environment, on the one hand refer to the necessary systematic interpretation in relation to other principles and rights such as the right to property, free enterprise and the principle of the free movement of goods and29, and on the other hand, being a matter of transversal nature, the environment can determine the exercise of other material powers, as the management of the territory, fishing, etc.30. 26 as in relation to environment (art. 45.3) or in relation to the protection of the cultural, artistic and historical heritage (art. 46). 27 as, for example, in relation to foreign trade (art. 51.3) and the professional associations (art. 52), or also as previsions of institutional guarantee, in relation to the establishment of a public regime of social security (art. 41) or in relation to the family (art. 39). 28 stc 22/1981, fj 8. 29 sstc 227/1988, fj 7, and 243/1993, fj 5. 30 stc 36/1994, fj 3. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 117 social rights in the face of the crisis. reflections on the spanish case the norm in art. 46 sc can be included in this type of guiding norms. according to it "public authorities shall guarantee the preservation and shall promote the enrichment of the historical, cultural and artistic heritage of the peoples of spain and of the goods comprised in it, whatever their legal status and their ownership" from where the possibility of introducing limits and authorizations for the sale and transfer of goods of "cultural interest" is inferred31. in addition, chapter iii includes norms aimed at the protection of persons, by ensuring a vital existential minimum, especially with regard to the protection of workers; indeed based on art. 41 sc "public authorities shall maintain a public social security system for all citizens guaranteeing adequate social assistance and benefits in situations of need, especially in case of unemployment". it is therefore clear that this provision expresses a central profile of the welfare state, as it prefigures the existence of a system of public social protection as a necessary institutional guarantee32, by which the mentioned constitutional principles designed to protect citizens in case of necessity and unemployment are concretized. in short, as noted by the constitutional court, social security should be seen as a "necessary function of the social and democratic rule of law"33 in the sense that situations of need are assigned to the minimum care constitutionally guaranteed, to which other contributory benefits can be attached: it is therefore unavailable for the legislature, because, although these rights have a legal configuration and therefore are susceptible to be modulated by this34, the legislature is obliged to maintain a public social security system in recognoscible terms for the image the social conscience in every time and place has of it. in addition, obviously, it assumes particular importance the provision contained in chapter iii, by which the right to health protection is recognized in the art. 43.1 sc, with respect to which the jurisprudence itself uses an integrating interpretation, given their intrinsic nature of essential human need35. under this norm, paragraph 2 states that "it is the responsibility of the public authorities to organize and safeguard public health through preventive measures and the necessary benefits and services. the law shall establish the rights and duties of all in this respect”36, hence, as stated in the 31 stc 17/1991. 32 stc 37/1994, fj 3d. 33 stc 65/1987, fj 17. 34 stc 37/1994, fj 3. 35 about the right to health cfr. j.j. ruiz ruiz, “el derecho a la salud en la actual crisis económica: los límites constitucionales a los recortes de prestaciones sanitarias y las exigencias de sostenibilidad del gasto social”, in s. gambino (coord.), diritti sociali e crisi economica. problemi e prospettive, torino, 2015. 36 about the universalization of the health benefits, cfr. specially the art. 3.2 of ley general de sanidad de 1986 and, more recently, after the economic recession and the y, más recientemente, tras la recesión económica y the emergence of the fiscal and budgetary crisis, the abundant emergency legislation and, in particular, the real decreto-ley 16/2012. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 118 fernando puzzo constitutional jurisprudence, it follows the necessary existence of a national health regulatory system (national heal system) 37. other norms contained in chapter iii are intended for the protection of persons as belonging to certain social groups, such as children (art. 39.4) or youth (art. 48), elderly (art. 50) or disabled persons (art. 49). finally, there are norms connected with the requirement of protection of human dignity, aimed at people who demand tangible and intangible goods necessary for the free development of the individual, such as the aforementioned right to health and access to culture (art 44.1), or the right to decent and adequate housing (article 47) others aimed at the specific protection of the rights of workers (article 40.2); and finally other norms aimed at the social, economic and legal protection of the family (art. 39.1), understood, as noted by the constitutional court, in a broad sense, so that the protection is not limited to that which is born from the marriage of art. 3238. that having been said, we must now examine both the value and the legal effectiveness of the rights and principles that guide the action of the public authorities in chapter iii. first of all, it should be noted that, in the case of constitutional norms, there is no doubt that, under art. 9.1 sc, they have legal force, regardless of the specific scope of the constitutional regulatory structure. it seems clear that, in the case of guiding norms aimed to pursue the objectives of the political organization established in the constitution, they comprise regulated values and criteria and, therefore, represent data of the system intended to their achievement and interpretation. it follows that the socalled "guiding principles"39 cannot be understood as mere programmatic proclamations or be treated as if they were pure "constitutional rhetoric." such a position has been held from the point of view of constitutional interpreter, for which "from that perspective, it should be recalled that the guiding principles of social and economic policy, among which is the aforementioned provision, are not mere norms without content (stc 19/1982, fj 6) but, as far as the courts are concerned, their decisions must be informed by their recognition, respect and protection, as provided for in art. 53.3 sc40. beyond the obvious connections with the social, democratic and lawful character of the spanish state, the legal effectiveness of these principles can be found, in primis, in the content of art. 53.3 sc, which states that "recognition, respect and protection of the principles recognized in the third chapter shall guide legislation, judicial practice and actions of public authorities. they may only be invoked before the ordinary courts in accordance with the provisions of the laws that implement them” from which a mandate to the legislature which does not deprive of normative effectiveness the content 37 stc 211/2014 fj 4. 38 sstc 222/1992, ffjj 4 y 5, 47/1993, fj 2, 116/1999, fj 13. 39 j. tajadura tejada (dir.), los principios rectores de la política social y económica, madrid, 2004. 40 stc 95/2000. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 119 social rights in the face of the crisis. reflections on the spanish case of the right in question, since it imposes to legislate favorably to the guaranteed content, which can ultimately lead to an appeal of unconstitutionality ex art. 161.1 sc, although considering social rights as norms does not amount to assert their justiciability. at the constitutional level, it can be firstly seen see that the norms expressly qualified as rights per se do not constitute subjective rights directly justiciable, but only legal situations enforceable before the courts, based on the scope of the laws that develop them in the legal level, anchoring them in the aforementioned constitutional foundation. in short, their effectiveness is not immediate or direct, but deferred and mediate as set out by the legislature, respecting the design prefigured by the constituent assembly, so it follows that they do not have the normative structure of the rights, but they are guiding principles susceptible of development by the legislature, configured so as rights that potentially have a plural configuration41. from this point of view, although it is not possible to recognize a full legal and constitutional protection, as in the case of the right to health covered by the guiding principles of chapter iii, it can be said that it is not possible to deny forcibly their nature and this implies, on the one hand, that a certain degree of enforceability can be protected jurisdictionally and, secondly, that the nature of constitutionally recognized right implies the existence of a content and that determining such content corresponds to the legislature. regarding the effectiveness of such rights regarding the legislature this can be seen as a consequence of the mandate that requires their development, recognition, respect and protection, that the legislature is primarily called to give concreteness to such guiding principles and therefore also the other powers are obliged to respect the law under the provision of the democratic principle and the system of sources. this dimension is particularly reinforced at the constitutional level as it is accompanied by a specific institutional guarantee, as for example, in the articles 39 (protection of the family) and 41 (public social security system), which foreshadows a unavailable core for the legislature itself. however, regardless of such a significant and important feature, not being provided regarding the legislature the limit of respect for the essential content, it seems clear that the margin of discretion with respect to its configuration, is quite broad according the general concepts and terms used by the constituent assembly. as for the extent of the possible configuration, important issues arise: firstly, the issue concerning the possible remedy in case of abstention or inactivity of the legislature and, secondly, the question concerning the so-called principle of irreversibility, i.e., the possibility of understanding the contents of the guiding principles previously recognized assuming them as irreversible level of guarantee and, therefore, as binding the legislature. in accordance to the first point, ie the complex problem of "unconstitutionality by omission", it is sufficient to note that the constitutional court has not got 41 stc 206/1997. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 120 fernando puzzo instruments to force the legislature to act in the case of an "absolute omission”, that is, if there is not supplement or development legislation. however, in the exercise of judicial review of legislative acts, in line of principle it might be accepted the possibility of control by the constitutional court as a result of an " relative omission" in the event that the relevant legislative regulation is incomplete. however, given that the legislature is not subject to respect the "essential content", as noted by constitutional jurisprudence42, this hypothesis refers to the problem of identifying what may be the control parameter regarding the alleged incompleteness, in addition to the intrinsic "vagueness and uncertainty" that define the guiding principles themselves. all this, however, does not close the possibility that such control can be exercised in the event that the principle of equality or the right to effective judicial protection come into play or even that can be exercised under other objective guarantees offered by the constitutional order, but in that case, these latter rights and guarantees in the context of a systematic interpretation would be those which would be placed as a parameter of judicial review, and the reference would not be only to the guiding principles. as for the so-called theory of the "irreversibility" of the content of social rights, which involves crystallizing the content of the rights already recognized by the legislative regulation, it has been adopted as a constitutional guarantee43, it could contravene the democratic and the political pluralism principles, since it would limit the free exercise of discretionary policy options in economic and social realms. however, the respect for the principles that define the social state admit the need to guarantee the essential minimum content established through legislative development. in this sense, the constitutional court, invoking the right to equality -in line with the prohibition of discrimination based on sexhas stated that "given the social and democratic character of the rule of law that our constitution stands and the obligation imposed to the state by the arts. 9.2 and 35 of the constitution to promote that the conditions for equality of individuals and groups are real and effective and the promotion through the work, but in no case can there be discrimination on grounds of sex, it can be understood that the worker cannot be deprived of the already achieved social conquests without enough reason to do so”44. furthermore, the application of the principle of irreversibility -or of no regression social benefitscan be seen as a control of reasonability of a reform in peius of social benefits contrary to the principle of proportionality and equity or no unenforceable due to supervening circumstances45. from another point of view, another limit and interpretive instrument can be inferred from the constitutional dictate of art. 31.2, according to which "the public expenditure shall make an equitable allocation of public resources, and its programming and execution shall comply with the criteria of 42 about the nature of such principles, cfr. stc 45/1989, fj 4, where it is stated that «it is unlikely that any legal norm can be considered unconstitutional by omission, that is, for not fulfilling, isolately considered, the mandate of the public authorities and, specially, that of the legislature, where each one of these principles is generally concreted». 43 sstc 134/1987, fj 5, and 184/1990, fj 5. 44 stc 81/1982, fj 3. 45 sstc 136/2012, fj 5, 71/2014, fj 7b and 85/2014, fj 3c. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 121 social rights in the face of the crisis. reflections on the spanish case efficiency and economy" which seems to impose in a finalist way the sense of the redistributive effect of public expenditure. finally, regarding the legal effectiveness, since the spanish constitution generally refers to the recognition, respect and protection of the guiding principles that should inform the action of public authorities, it appears that government and administration are bound by those norms, both in the exercise of the management function and in the exercise of normative authority itself. the same is true with respect to judicial organs, as also constitutionally judicial practice must be informed by these principles, so that both the interpretation of the norms and their application, cannot be outside the guiding principles. regarding the latter, a fortiori, suffice it to recall that this constitutional requirement is also reinforced by art. 5.1 of the organic law of the judiciary, which states that judges and courts interpret and apply the laws and regulations "according to the precepts and constitutional principles", according to their interpretation by the constitutional courts, so that from this view, there arises the possibility that the courts use these principles as a constitutional parameter to raise any questions of unconstitutionality. v. concluding reflections in the spanish constitutional order most of welfare social rights are presented as formal rights and materially conditioned by the concrete development made by public authorities and therefore their immediate enforceability before the ordinary judge is limited by the constitutional provision of art. 53.3. such an arrangement, according to the jurisprudence of the constitutional court implies, on one side, a derogation of the obligatoriness of the constitution, since it affirms that "the constitutional principles and fundamental rights and freedoms are binding on all public authorities (arts. 9.1 and 53.1 sc) and are immediate source of rights and obligations and not mere programmatic principles. the very fact that our basic norm in art. 53.2 provides a special system of protection before the constitutional court, which extends to conscientious objection, is but a confirmation of the principle of immediate applicability. the only exceptions of this general principle are the cases where so impose the constitution itself (i.e. the guiding principles of chapter iii) or when the very nature of the norm prevents considering it immediately applicable46. it follows that the constitutional court may control a violation of the constitution by omission of legislatively developing a constitutional norm, thus ensuring the protection of those subjective legal situations, at least in terms of their essential minimum. although welfare rights can be invoked before the ordinary courts in accordance with the terms laid down in the laws that develop them, it seems possible to find a 46 stc 15/1982. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 122 fernando puzzo constitutionally consistent interpretation by the ordinary judge, which could pose a appeal of unconstitutionality on the limits of the law of development approved by the public authorities, based on a parameter that systematically combines several constitutional provisions (preamble, art. 1.1 of the preliminary title, guiding principles of chap. iii tit. i, art. 9.2 and art. 14 ec). such systematic and evolutionary interpretation, as already noted, already used by other european constitutional courts, could rely on the arguments by the supreme interpreter when, in discussing the nature of the guiding principles of social and economic policy, states that "it is unlikely that any law can be considered unconstitutional by omission, that is, for not respecting, in isolation, the mandate of the public authorities and, in particular, the legislature, in which each of these principles is usually concreted"47. however, from this interpretive perspective, according to an attentive doctrine, "not prevent, obviously, the possibilities of control that might result from the coming into play the principle of equality, the right to effective judicial protection or any objective guarantee provided by the constitutional order, but in these cases these rights or guarantees would be the constitutional control parameter within a systematic interpretation and not, by themselves, the guiding principles"48. in that sense, for example, the right to vital minimum49 could be configured from the right to life (art. 15), from the principle of the social state (art. 1.1.) 50, in relation to the dignity of the person (art. 10.1) and also from some guiding principle such as the right to the protection of health (art. 43), to adequate housing (art. 47). even more, referring to social rights the spanish constitutional jurisprudence, as the italian, does not accept the thesis of the programmatic nature of constitutional norms, stressing that "the constitution is just that, our supreme law and not a programmatic or main statement; this is something affirmed unequivocally and generally in the art. 9.1 which states that "citizens and public authorities are subject to the constitution" as well as that "repeated decisions of this court as supreme interpreter of the constitution (art. 1 lotc) have declared that indubitable value of the constitution as a norm"51. regardless the immediate obligatoriness of some constitutional provisions, included in chapter ii, "rights and freedom" (articles 14-38), which do not need mediation of the ordinary legislature and are directly effective without legislative development, paraphrasing the constitutional court: "if it is true that such value needs to be modulated with regard to the arts. 39-52 in the terms of art. 53.3 of the spanish constitution, there can be no doubt about the immediate binding nature 47 stc 45/1989. 48 cfr. f. balaguer callejón, (coord.), manual de derecho constitucional, 2008, (iii ed.). 49 cfr. p. tenorio, “el tribunal constitucional, la cláusula del estado social, los derechos sociales y el derecho a un mínimo vital digno”, in aavv (actas ix congreso de la ace), derechos sociales y principios rectores, valencia, 2012. 50 in relation to the legal fundamental values and principles in which the spanish democratic and social rule of law is founded, in particular: sstc nn. 4/1981, 15/1982, 16/1982, 77/1982, 80/1982, 7/1983, 8/1983, 15/1983. 51 stc n. 80/1982. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 123 social rights in the face of the crisis. reflections on the spanish case (i.e., without mediation by the ordinary legislature) of the arts. 14-38, components of the second chapter of the first title, as the first paragraph of art. 53 states that the rights and freedoms set forth in this chapter are binding on all public authorities. that the exercise of such rights has to be regulated only by law and the need for it to respect their essential content, mean that these rights already exist, and are binding on all public authorities including obviously the judges and magistrates members of the judiciary (art. 117 ec), from the very moment of the entry into force of the constitution. one of such rights is equality before the law of all spaniards, there may be no discrimination between them on grounds of birth (art. 14 ec)"52. furthermore, as a part of the doctrine supports, other constitutional provisions, those concerning the "guiding principles of social and economic policy" (arts. 39-52) need a legislative modulation in accordance with the provisions of art. 53.3 sc in response to their "different legal effectiveness"53. however, in consideration of their nature of general constitutional provisions, such rights and principles as a whole are directive to the action of the legislature as well as hermeneutical criterion and parameter for the judges in the exercise of the judicial function. it is, in short, a set of fundamental principles and values that the constituent assembly of 1978 believed suitable to recognize constitutionally while assuring the courts and judges a deep elasticity, which was necessary in view of the concrete conformation in spain to the deep historical, economic and social changes already experienced over decades in other european countries. however, from the beginning of the new millennium54 the complex architecture of contemporary constitutionalism, to which largely the achievements in terms of civilization and social justice are due, seems today to crack because of many forces and trends of varied nature that make waver forms and ways of being of the democratic, social, legal and constitutional state, and that until yesterday were assumed to be firm and definitive as inherent to the idea of democracy conceived as heritage of everyone55. in this context, it is evidently that the most acute problems of the crisis concern especially to the welfare state model. in spain the development and crisis of the welfare state model have elements of continuity with other european systems, and especially, the countries of the 52 ibidem. 53 among others, cfr. e. garcía de enterría, la constitución como norma y el tribunal constitucional, madrid, 1985, (iii ed.) y jiménez campo, “estado social y democrático de derecho”, in diccionario del sistema político español, madrid, 1984. 54 cfr. m. luciani, “integrazione europea, sovranità statale e sovranità popolare. norme e idee”, inn istituto enciclopedia italiana, xxi secolo. norme e idee, roma, 2009, vol. i. 55 cfr. m. luciani, “integrazione europea, sovranità statale e sovranità popolare. norme e idee”, in istituto enciclopedia italiana, xxi secolo. norme e idee, roma, 2009, vol. i., ove secondo l’autore “l’idea che la crisi della sovranità sia un problema solo per gli stati non è accettabile … essa è un problema innanzitutto per le persone perché senza sovranità i loro diritti politici (e non solo) non sono garantiti e le politiche redistributive non si possono attuare”, p. 164. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 124 fernando puzzo mediterranean area, exacerbated by the economic and financial crisis and the relative political and constitutional answers both on the national and on that european realm56. on the basis of the crisis in the social, democratic and legal constitutionalism, a central relief is occupied by the consequences of the economic crisis linked to the limits on public expenditure and, therefore, to the availability of public resources needed for ensuring the exercise of the functions of the welfare state57, on the loss of centrality of parliamentary decision respect to the demands, now constitutionalized, of levelling the balance of the state and, ultimately, on the effectiveness of human rights58. in such a scenario, the welfare state, born to guarantee freedoms and rights in the constitutional perspective of realizing the goals of social justice, due to degradation / evanescence of social rights eventually makes fragile the democracy itself, ignoring the normative value the constitutional text. but do not forget that, although in different ways, the european constitutions of the last post-war, beyond procedural rules, are substantive rules regarding the very content of the laws. in other words, it is in the normative conception of the constitution, as norm and limit of the legislative acts, where its superiority is located59. show, by assigning direct binding nature to the fundamental principles and norms, it is the most innovative and original aspect of the contemporary constitutionalism and, at the same time, reflects the historical requirement of not leaving the system of freedoms and rights to the mere realization of principle of legality but of making it an instrument of guarantee and direction in addition of protection and promotion. finally, the problem of the welfare state (in spain and other european countries) basically concerns not only the general taxation, but also the very representative quality of the democracy and, therefore, in order to the adequacy of the protection of the represented interests represented, in short, it depends on the effectiveness of the democratic principle. the reduction of available resources also endangers the very justiciability of fundamental rights, not only the social ones. such a risk, however, seems even more 56 cfr. f. puzzo, “il costituzionalismo dei diritti sociali e la sovranità finanziaria statale, ovvero dalla novella costituzionale sul c.d. ‘federalismo fiscale’ al trattato europeo sul c.d. ‘fiscal compact’, passando per la legge cost. n. 1/2012 sul principio del pareggio di bilancio”, in s. gambino (coord.), diritti sociali e crisi economica. problemi e prospettive, torino, 2015. 57 cfr. s. gambino (coord.), diritti sociali e crisi economica. problemi e prospettive, torino, 2015, and in particular s. gambino, “crisi economica e diritti sociali (con particolare riguardo al diritto alla salute, all’assistenza sociale e all’istruzione)”, g. ruiz-rico ruiz, “el valor de los derechos constitucionales en tiempos de crisis”, j. lozano miralles, “universidad y crisis económica: el caso español”. 58 cfr. m. luciani, “l’equilibrio di bilancio e i principi fondamentali: la prospettiva del controllo di costituzionalità”, in www.cortecostituzionale.it, 22/xi/2013, a. spadaro, “i diritti sociali di fronte alla crisi (necessità di un nuovo «modello sociale europeo»: più sobrio, solidale e sostenibile” en rivista aic n. 4/2011 (www.rivistaaic.it); c. salazar, “crisi economica e diritti fondamentali”, in rivista aic n. 4/2013; a. ruggeri, “crisi economica e crisi della costituzione”, in aa.vv., scritti in onore di antonio d’atena, milano, 2015. 59 cfr. e. garcía de enterría, la constitución como norma y el tribunal constitucional, madrid, 1985, (iii ed.) and v. crisafulli, “la costituzione e le sue disposizioni di principio”, milano, 1952. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 125 http://www.rivistaaic.it/ social rights in the face of the crisis. reflections on the spanish case pervasive because of the provisions introduced in the new art. 135 of the spanish constitution (and similarly on the reform of article 81 of the italian constitution) which makes the enforceability of fundamental rights in monetarily conditioned rights, which leads to discharge on judges of final recourse -constitutional court, court of justice of the european union and the european court of human rightsthe decision on the balance between financial sustainability and effectiveness of social law. the age of human rights journal, 6 (june 2016) pp. 108-126 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2932 126 two-lane blacktop: refugees & torture jesús garcía cívico1 abstract: the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and the right of asylum have, individually considered, an extensive field of application", but it is possible to point out some traits in common. firsty, in both rights undelie the moral spirit of the universal declaration of human rights. at the same time, according to the recent reports of the main human rights organisations, both rights are in deep political crisis. furthermore, is possible to see that sometimes they cross each other: there is a triple «zone of intersection between the right of asylum and the right not to suffer torture, inhuman or degrading treatment: one of the reasons for escaping from a country is to avoid suffering torture ("refuge after torture") secondly, sometimes inhuman and degrading treatment occur precisely in the process of seeking asylum ("inhuman treatment in the refuge"), finally, there are countries with strong deficiencies in their immigration policies and this can produce a perverse effect: the transfer of potential asylum seekers to countries where they are at risk of torture or inhuman treatment again ("torture or inhuman and degrading treatment after asylum"). keywords: torture; refugees; human rights; international law; human rights effectiveness summary: i. introduction; ii. right of asylum and right not to suffer torture: same nature and common destiny; ii.1. a pretty similar starting point;. ii.2. a common destin; iii. from torture to asylum seeking; iv. torture (inhuman and degrading treatment) in the seek for asylum; v. torture or inhuman treatment after seeking asylum; vi. synthesis and recapitulation. i. introduction both the right not to suffer torture or the right to asylum have, individually considered, case-by-case, broad fields of application. torture is, unfortunately, a very widespread reality and, at the same time, the reasons of the refugees to escape from their countries are very varied. however, there are at least two common notes between them that allow us to understand and approach them together. firstly, we can agree that both are at the center of the big concerns that allowed historically the main human rights declarations since 1948. neither asylum nor the interdiction of torture, inhuman or degrading treatment are just two more human rights among others, but rather they synthesize very well the core of the essential worries of the issue of the universal declaration of human rights and the subsequent covenants: the imposition of a better world committed with the legal 1 universitat jaume i, castellón, spain. center of research of the effectiveness of rights (civico@dpu.uji.es). the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 49 two-lane blacktop: refugees & torture and political demands derived from the fundamental budget of the whole catalog of human rights: the human dignity. the second common note is the existence of a zone of intersection between the right of asylum and the right not to suffer torture, inhuman or degrading treatment. this intersection belongs to the normative configurations of both rights as well to the real, empirical field of their effectiveness (the physical space where rights violations are committed). this can be understood in a triple way: firstly, the crossroads of both rights is due to the fact that one of the reasons for escaping from a country is precisely to avoid suffering torture in it ("refuge after torture" as we could call that encounter); secondly, –and this is already a real feature of our present time–: inhuman and degrading treatment or punishment, occur precisely in the process of seeking asylum ("inhuman treatment in the refuge"); a last area of intersection results from the fact that there are countries with strong deficiencies in their immigration policies and this can produce a perverse effect: the transfer of potential asylum seekers to countries where they are at risk of torture or inhuman or degrading treatment or punishment ("torture or inhuman and degrading treatment after asylum"). but let us begin with their common nature and similar destinies. ii: right of asylum and right not to suffer torture: same nature and common destiny ii.1. a pretty similar starting point the right to asylum and the right to be free from torture have a common feature: both were part of the deepest believes and raison d'être of the world declaration of human rights (1948). the prohibition of torture is, in a political philosopher ronald dworkin's fine expression, «a fixed point in the moral universe», but in addition, and as professor javier de lucas recalled a few years ago with regard to the extension of torture into democracy, the experience of that destructive capacity which can reach the policy of instrumental torture, was so serious that the malheur de conscience of the twentieth century, which the very birth of the un has as one of its priority objectives, for the purpose of eradicating it. in the twentieth century there were so many cases of systematic cruelty, including experimentation with human beings, that this explains percetly the need, not only for the right not to be tortured, but also for the emphasis on its absolute character. the right not to be tortured is reflected in article 5 of the 1948 declaration of human rights and article 7 of the covenant on civil and political rights: "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. both torture and cruel, inhuman or degrading treatment are prohibited practices at all times and in all places, even in times of war. on an ethical perspective, the moral conviction that a human being can not be tortured by other human beings was, at a moment of our intellectual history (a zig.zag the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 50 jesús garcía cívico civilizatory process), so powerful, that it spread in the most important juridical texts and endowed, for that reason, of the most serious of the binding legal forces. the prohibition of torture is still (these are times when it must be remembered) a rule of ius cogens integrated at the bottom of the big principles that reflect superior values that bind the whole humanity. the moral and legal imperative –do not torture, any time, anywhere, in any circumstances– is mandated by the un convention against torture and other cruel, inhuman or degrading treatment or punishment. “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency,” says the convention, can “be invoked as a justification of torture.” all the declarations of rights stand out their absolute character: there are no exceptions. that same compromise affects the meaning of the principle of non-refoulement as regards the right of asylum: no person should be sent back to a country where he or she may be subjected to torture. such a prohibition against repatriation is set out in article 33.1 of the 1951 geneva convention. it is an essential guarantee of the right of asylum: no contracting state may, by expulsion or refoulement, place a refugee in any borders of territories where their life or freedom is endangered because of their race, religion, nationality, membership of a particular social group, or their political opinions. although there are exceptions on security and final conviction for serious crimes, the fact is that the principle of non-refoulement has evolved into an absolute standard, there are no exception or derogation2 with regard to the real effectiveness of the right of asylum, the united nations high commissioner for refugees (unhcr) has developed a large number of documents in recent decades to adapt protection mechanisms to new dynamics of persecution. it has also done so on theoretical currents for the recognition of refugee status in situations of danger to life or physical and mental integrity not contemplated at the time of its promulgation. in all these cases, the principle of non-refoulement is a fundamental component of the customary prohibition of torture and cruel, inhuman or degrading treatment or punishment.3 in fact, the convention against torture and other cruel, inhuman or degrading treatment or punishment prohibits (article 3.1.) states parties to expel, return or extradite a person to another state "where there are reasonable grounds to believe that they would be in danger of being subjected to torture". in this sense, the european court 2 indeed, the non-refoulement rule contained in human rights treaties covers a broader range of situations than that set out in 1951 and, in addition to not allowing exceptions or exceptions, does not require that the danger be linked to civil status or politician of the individual, but can derive from any cause, and covers, in addition to the return and expulsion, also extradition. among others: unhcr, handbook of procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, ginebra, 1988; goodwin-gill, g., the refugee in international law, clarendon press, oxford, 1996, stenberg, g., non-expulsion and nonrefoulement. the prohibition against removal of refugees with special reference to articles 32 and 33 of the 1951 convention relating to the status of refugees, iustus förlag, uppsala, 1989. 3 acnur «opinion 97: sir lauterpacht, e. y bethlehem, d., refugee protection in intrenational law, cambridge, 2001. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 51 two-lane blacktop: refugees & torture of human rights (echr) has ruled (soering case) that the prohibition of art. 3 of the european convention against ill-treatment “is also absolute with regard to expulsión”. according to the human rights committee, "it would be unreasonable to interpret the responsibility of states under the terms of article 2 of the covenant (referring to the covenant on civil and political rights, which refers to the commitment to respect and guarantee it) in such a way as to enable them to perpetrate violations of the pact in the territory of another state which they could not perpetrate in their own territory". that is to say, the european court of human rights has interpreted the european convention for the prevention of torture and inhuman or degrading treatment or punishment as prohibiting states which have ratified the convention not only from inflicting torture or inhuman or degrading treatment, but also to send asylum seekers to countries where there is a real risk of such treatment or of being sent back to others where that danger is predictable. in short, if both rights summed up well the wide ethical convictions of the second half of the twentieth century (at least in its first decades) was by a serie of strong believes probably based on the recent memory of a nameless atrocities and te consequent need to protect not only life or phisical integrity of the human being, but also his dignity. and there is no greater affront to this dignity than the impossibility of finding refuge in the world or that humna being´s "reification" that we call “torture”. we can go even further, after analyzing the recent arguments that claim the lawfulness of torture, professor la torre has developed the thesis that there is a conceptual connection between torture and illegality, a phenomenological contradiction between law and torture4. at the same time, all the organizations committed to the defense of human rights insist today in a fact: the legal status of refugees is obligatory for all states that form the international system of law, established in the geneva convention and in the protocol of new york. ii.2. a commom destiny i think it is possible to agree that there are two human rights that are in global crisis today: the right to asylum and the right not to suffer torture. the importance of each of them is such that this crisis climate can also be understood as a crisis of political institutions, that is, as a political crisis. regarding the first, and as javier de lucas has been insisting for more than a decade, asylum and refuge rights are not one of the catalog of rights, but are at the core of any political project that respects human rights. that is why the current 'refugee crisis' can be understood as the eu crisis as a political project: a common area of freedom, security and justice, chaired by the theorical notion of human rights5. the international organization for migration estimates that more than 3,770 refugees and 4 la torre., m., «a dangerous liaison. tortura and law», derechos y libertades: revista del instituto bartolomé de las casas, nº 28, 2013, pp. 25-38. 5 de lucas, j., «sobre el proceso de vaciamiento del derecho de asilo por parte de los estados de la ue», ars iuris salmanticensis, vol. 4, junio 2016, pp. 21-27; id., mediterráneo, el naufragio de europa, tirant lo blanch, valencia, 2016. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 52 jesús garcía cívico migrants died last year trying to cross the mediterranean sea to europe 6, at the same time, we are witnessing an strong retreat in the “defense” of tradiitonal national borders with sospicious xenophobic arguments as far as torture is concerned, scandals such the so-called "cia flights" 7 together with the impunity in the well known abu ghraib8 and guantanamo cases9, the success of the populist «ticking bomb» argument10, or the very existence of secret detention centers in europe give an idea of the scope of the serious implications to which we referred earlier. so, definitively, one of the issues that brings the destiny of the prohibition of torture closer to the norms on asylum is a common basic crisis (a type of political crisis) concretized in the lack of seriousness with which they are assumed the legal and political obligations arising from the legal nature of both rights. furthermore, the future seems even worse11: it is not posible to measure exactly the consequences12 of this "emptying", again in the words of de lucas, 13 in which national policies overlap political ideals, but also supranational commitments (those of the united states vis-a-vis the un, those of the member states vis-a-vis eu). 6 international organization for migrations, fatal journeys volume 2: identification and tracing of dead and missing migrants, geneva, 2016. 7 kaleck w., «justice and accountability in europe: discussing strategies», cia – “extraordinary rendition” flights, torture and accountability – a european approach, european center for constitutional and human rights, second edition, 2008, p. 15. 8 bennet, w. l., lawrence, r. g., livingston, s., «none dare call it torture: indexing and the limits of press independence in the abu ghraib scandal», journal of communication, 56, 2006, pp. 467-485. sands, ph., the torture team. rumsfeld’s memo and the betrayal of american values, palgrave-macmillan, new york 2008. 9 vid., la torre, m., «la teoría del derecho de la tortura» derechos y libertades: revista del instituto bartolomé de las casas, nº 17, 2007, pp. 71-87. 10 the ticking-bomb argument, where a terrorist is tortured in order to extract information of a primed bomb located in a civilian area, is often invoked as one of those extreme circumstances where torture becomes justified. as the war on terrorism intensifies, the ticking-bomb argument has become the dominant line of reasoning used by both academics and policy advisers to justify a legalized, statesponsored program of torture. buffani and arrigo have argued for the unconditional refutation of any attempt to justify torture, without exceptions beacuse the empirical evidence suggests that the institutionalization of torture practices creates serious problems. «torture interrogation fails to fulfil its initial purpose as a low-cost life saver, while its long-term potential is the devastation of democratic institutions». bufacchi, v. and arrigo, j. m., “torture, terrorism and the state: a refutation of the ticking-bomb argument”, journal of applied philosophy, 23, 2006, pp. 355-373. on the inefficacy argument: carver, r., handley. l., (eds.); does torture prevention work?, liverpool university press, 2016. 11 human rights watch; “trump’s national security choice won’t rule out torture” https://www.hrw.org/news/2016/11/18/us-trumps-national-security-choice-wont-rule-out-torture 15/11/2016. 12 harbury, tj. k., truth, torture and the american way. the historical consequences of u. s. involvement in torture, beacon press, boston, 2005. 13 de lucas, j., «sobre el proceso de vaciamiento del derecho de asilo por parte de los estados de la ue», cit., p. 21. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 53 two-lane blacktop: refugees & torture both the attacks of 11 september and the eu “refugee crisis” of recent years seem to have allowed, in a context of urgency and exceptionality, the idea that it is possible for the goverments to avoid taking on the basic demands of these two human rights developed in a historical phase of extraordinary consensus. accordingly, both the right not to suffer torture or inhuman and degrading treatment, as well as the requirements of the right of asylum, could be redesigned by the existence of contexts of exceptionality (defined as such by the political actors themselves) which will allow them to no longer ignore the regulative ideal or "ethical encouragement" of them, but rather the basic political and juridical implications derived from their binding force. so, the actuality of both rights is quite similar: both are in a critical situation. the years after the september 11 attacks allows establishing a genuine global network that, in the shelter of the fight against terror, includes a complex structure of dark detention centers where human rights violations are fragrant and impunity including inhuman treatment and torture14. moreover, even before the ankara agreement, it seems to be a kind of «rights local markets» whose message to the population is that there is no longer any space safeguarded by the human rights system that is not susceptible to give in to short time political and economic interests of the rulers of national states, the populist parties´s pression15 and, apparently, also the worst demandings of their voters. our time should be characterized as being an historical phase of human rights way in which the protagonism would rest on the empirical work and the statistics16. the essence of this phase should be the development of the priority of the measurament17, material means, tools and guarantees for the effectiveness (or real effectiveness) of human rights. 18 however, we are facing a setback that seems to be far behind the starting point. in the first case (the right not to suffer torture or inhuman or degrading treatment), rather than a stagnation of the traditional format of its prevention (another form of real effectiveness), the main feature seems to be the revision of the foundations of non-exceptionality. one of the key questions is whether states can use methods of “coercive interrogation” that do not qualify as torture. on the issue of regulation, there are those –alan dershowitz, for example– who believe that banning torture and coercion outright is unrealistic. instead, dershowitz said, the practice should be regulated by court warrants.19 in our opinión, all these positions are part of an immoral 14 human rights watch, «no more excuses: a roadmap to justice for cia torture», 2015. https://www.hrw.org/report/2015/12/01/no-more-excuses/roadmap-justice-cia-torture. 7/09/2016 15 gale, p., «the refugee crisis and fear. populist politics and media discourse», journal of sociology, 40(4), 2004, pp. 321-340. 16 claude, r., jabine, th.; “exploring human rights issues with statistics, in, human rights and statistics, getting the record straight, university of pennsylvania press, 1992, p. 23. 17 landman, t., «measuring human rights: principle, practice and policy», human rights quarterly, 26, 2006, pp. 906931. 18 garcía cívico, j. «¿qué es un indicador de derechos humanos y cómo se utiliza?», derechos y libertades: revista del instituto bartolomé de las casas, año nº 15, nº 24, 2011, p. 179. 19 memorandum for alberto r. gonzales, counsel to the white house, from jay s. bybee, assistant attorney general and john c. yoo, deputy assistant attorney general, standards of conduct for interrogation under 18 u.s.c, section 2340-2340a, 2002; memorandum for john a. rizzo, acting general counsel, cia, from jay s. bybee, assistant attorney general, interrogation of al qaeda the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 54 https://www.hrw.org/report/2015/12/01/no-more-excuses/roadmap-justice-cia-torture jesús garcía cívico debate20 (quite truculent, to be honest), including the wrong and dangerous expression "war on terror". as michael ignatieff wrote the judicialisation of torture, and of coercive interrogation techniques involving stress and duress, physical abuse, sleep deprivation and so on, could lead to torture and coercion becoming routine rather than an exception21. that is, a position in favour of outright prohibition of both torture and coercive interrogation has gained strength from the abuses at abu ghraib, and from the memos of the office of legal counsel and the white house parsing the torture convention into permission for coercive interrogation. it seems clear from the dire experience of abu ghraib that outright prohibition of both torture and coercive interrogation is the only way to proceed. that is to say, the traditional main problem concerning the effectiveness of the right not to be tortured had been the continued existence of torture in the world, but nowadays, we can add new justifications in a worrying path of exceptionality (excepcionalities), trivialization and/or strange normalization (including legalization) of torture practices. according to amnesty international's most recent report, during the past five years torture has been reported in 141 countries. in addition, 2015 has been the first year in which torture has spread as much as in world war ii. immediately linked to the extent of the crime of torture, we find the question of its impunity. the diagnosis is worrying in itself, but it also translates into population movements, exodus that have as main motive truly terrifying situations: threats of murder, torture, imprisonment without guarantees, enforced disappearances, etc. finally, if we want to highlight the novelties in the area of conjunction of both rights (and the assets that are protected with them), another feature that points to a common destination is the fact that both torture and asylum are affected by another legal novelty: the rise of private actors in human rights violations22. the convention against torture definition contains a requirement that the actor be a public official or other person acting in an official capacity but there are facts that allow a new trend in the jurisprudence of the committee against torture, the european court of human rights and the un human rights committee to admit a wider reading of ‘the actor’ in international human rights law 23 . we refer to the open cases against international corporations for human rights violations that point in particular to the crime of torture as operative, 2002. dershowitz, a. d., «is there a torture road to freedom?», los angeles times, 8 de noviembre de 2001.yoo, j., the powers of war and peace, university of chicago press, chicago, 2005. 20 the immoral character of the debate itself, has been pointed out in many places, among others, by massimo la torre, la torre, m., «la teoría del derecho de la tortura» derechos y libertades: revista del instituto bartolomé de las casas, nº 17, 2007, pp. 71-87. as slavoj žižek wrote, those who are not openly pro-torture, make it a legitimate subject of debate, are even more dangerous than explicit support. žižek, s., «sobre terrorismo y tortura», in pasajes: revista de pensamiento contemporáneo, nº. 17, 2005, pp. 21-27 p. 23. 21 ignatieff, m., torture: does it make us safer? is it ever ok?, kenneth roth and minky worden, (eds.), the new press / human rights watch, 2006. 22 rosemann, n.; «the privatization of human rights violations – business’ impunity or corporate responsibility? the case of human rights abuses and torture in iraq», non-state actors and international law, 5, 2005, pp. 77-100. 23 sivakumaran, s., «torture in international human rights and international humanitarian law: the actor and the ad hoc tribunals», leiden journal of international law, 2005, pp. 541-556. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 55 two-lane blacktop: refugees & torture well as forced displacement (basically in the case of land grabbing24). these facts are not isolated but integrated in a more general trend25 and if we had to indentify some specific cases, among them would be the hiring of mercenaries and private forces in the conflicts that the us maintains in iraq and other countries in the zone («blackwater case» and others26), while on the otthe side (dealing with refugees) we could talk about the increasing business of illegal people trafficking. that is, there is a final convergence that has to do with what the dutch sociologist saskia sassen studies as “power issues arising from the globalization process”: there are more and more populations displaced or imprisoned, more destruction of the land, etc. and this explains why at the origin there is a complex knot of private institutions and systems that we do not know still well, even when this causes the blurring between refugee and economic immigrant as well as their gradual loss of semantic relevance.27 iii. from torture to asylum seeking daily, millions of refugees and migrants fleeing war and persecution in countries like syria, south sudan, myanmar and iraq suffer intolerable misery and human rights violations28. refugees are people who have had to flee their country because of armed conflict, serious human rights abuses or persecution and the threat of inhuman treatment or torture is one of the traditional motives for fleeing a country. in recent years the number of people forced to seek refuge in a third state due to this scourge (torture) growing especially in unstable territories and areas of conflict, has increased. according to unhcr, more than 60 million people have left their countries or become displaced; although the reasons why people migrate remain diverse and often complex, the truth is that there are thousands of people running away from abuses and crimes such as torture. syria, afghanistan, somalia, sudan, south sudan, the democratic republic of the congo, the central african republic, myanmar, iraq and eritrea are countries with extraordinary human rights deficits, in particular, as regards torture and inhuman or degrading treatment. 24 zamora cabot, f., «acaparamiento de tierras (land grabbing) y empresas multinacionales: el caso mubende-neumann», in papeles el tiempo de los derechos, 2013, (5). 25 aymerich, i., «orígenes ideológicos de la distribución de responsabilidades públicas y privadas en la garantía de los derechos humanos», in zamora, f. j., garcía cívico, j., sales pallarés, s., (eds.), la responsabilidad de las multinacionales por violaciones de derechos humanos, cuadernos democracia y derechos humanos, universidad de alcalá, madrid, 2013, pp. 21-40. 26 as the journalist james scahill has denounced as dirty wars, drawn from the ranks of the navy seals, delta force, former blackwater and other private security contractors, the cia’s special activities division, and the joint special operations command (jsoc), these elite soldiers are operating worldwide, with thousands of secret commandos working in more than one hundred countries, including torture and othe abuses. scahill, j. guerras sucias. el mundo como campo de batalla, barcelona, paidós, 2013. 27 sassen, s., expulsions, brutality and complexity in the global economy, harvard university press, 2014. 28 unhcr, global trends, forced displacement in 2015, p.8: http://www.unhcr.org/uk/statistics/unhcrstats/576408cd7/unhcr-global-trends-2015.html the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 56 jesús garcía cívico in syria, according to recent reports by the united nations, amnesty international, human rights watch and the syrian observatory for human rights, government forces and non-state armed groups committed countless war crimes and enforced disappearances with impunity. between 2011 and 2015, thousands of deaths were in custody due to torture. the islamic state armed group imposed sieges and attacks with chemical weapons in civilian areas. there are already 400,000 more dead, 7.6 million internally displaced persons and 4.6 million refugees in other countries. in general terms, the refugees who are arriving to europe at the moment, come from territories with a high level of conflict and violence. in addition to the syrian refugees, there are a significant number of afghans and iraqis who also try to reach europe across the mediterranean. the hell of torture is particularly aberrant and scandalous in another country where refugees come from, eritrea, where, in addition, young people are forced into military service similar to slavery. in eritrea, since the dictatorship was hardened in 2008, some 50,000 people have fled the country to europe or israel. according to the un, some 3,000 people are trying to flee every month. by the end of 2014, the organization had registered 48,400 eritrean asylum applications in 44 industrialized countries. in the last decade, about 305,000 eritreans (5% of the population) have fled. the eritreans form the second group, behind the syrians, who cross from north africa to europe by boat, and in recent months hundreds of them have died in the attempt. but that already leads us to the second intersection: when suffering, due to serious human rights violations, occurs in the search for refuge or in the arrival to the country on which asylum depends. iv. torture (inhuman and degrading treatment) in the seek for asylum a second area of very wide intersection is characterized by inhuman and degrading treatment in the search for asylum and refugee reception. amnesty international has described many human rights violations (including torture and abuses) in transit; recentely many refugees and migrants in italy in 2016 have described thir journeys, facing abuse at every stage from their arrival in libya until they reached the mediterranean coast. the abuses included abductions, extortion, sexual violence, killings, torture and religious persecution by people smugglers, traffickers, organized criminal gangs and armed groups. women whom amnesty international interviewed said rape was so commonplace along the smuggling routes that they took contraceptive pills before travelling. 116 refugees and migrants have reported that people-smugglers hold them captive to extort a ransom from their families. they are kept in deplorable and often squalid conditions, deprived of food and water and repeatedly beaten, harassed and insulted. testimonies also reveal shocking abuses by the libyan coastguard and at immigration detention centres in libya. refugees and migrants have described the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 57 two-lane blacktop: refugees & torture shootings and beatings while being picked up by the coastguard as well as further torture and other ill-treatment at detention centres.29 many refugees are living in grinding poverty without access to basic services and without hope for the future, many are desperate to move elsewhere and some are willing to risk dangerous journeys to try and find a better life. on the first situation, we have already pointed out the thousands of drowning deaths in mediterranean sea; this phenomenon is not even exclusive (although it is especially lacerating, given the wealth of europe compared to the countries of the world which host the largest number of refugees30), the migration routes in southeast asia are, as amnesty international points out, equally dangerous; on the balkan route, refugees and migrants face arbitrary detention, ill-treatment by security forces, abuse, exploitation by smugglers, summary returns, including death. in central america, thousands of people attempting to cross mexico are kidnapped, raped or killed on one of the world's most dangerous journeys. during the journey they are exposed to abuse by officials of the migration services, police officers, military personnel, human traffickers and criminal gangs.31 although the weakening of asylum policies and social convictions around them must have been gradual, it has been in the last two years, as a result of the arrival of refugees from conflicts in the countries of north africa and the middle east, but above all the terrible war in syria, which is already remarkably visible the phenomenon we are paying attention to. among the facts that demonstrate the hostility of the eu is the rise of far-right and racist/xenophobic parties; the pressure on the african border (ceuta and melilla) where a group of emigrants was shot by the spanish guardia civil; the replacement of the mare nostrum rescue operation by military border control devices (“operation sofía”), eu outsourcing policies which have led the african union countries to restrict the arrival of refugees or bilateral treaties (spain with mauritania, nigeria, senegal or morocco, france with mali, or italy with gaddafi's libyan regime). in the case of the eritrean dictatorship, for example, about 50,000 young people have fled from the country to europe or israel, but to refer to a case already mentioned in the previous section (the torture that gives rise to the search for refuge). about 10,000 have disappeared along the way: a brutal network of people trafficking abducts refugees 29 amnesty international, tackling the global refugee crisis: from shirking to sharing responsibility, report p. 24. 30 when we break the global refugee crisis down by the numbers, the inequality in the response of states is stark. this is because the problem is not the number of refugees but that the vast majority (86% according to figures from unhcr, the un refugee agency) are hosted in lowand middle-income countries. meanwhile, many of the world’s wealthiest nations host the fewest and do the least. for example, the uk has accepted approximately 8,000 syrians since 2011, while jordan – with a population almost 10 times smaller than the uk and just 1.2% of its gdp – hosts over 656,000 syrian refugees. the total refugee and asylumseeker population in australia is 58,000 compared to 740,000 in ethiopia. such unequal sharing of responsibility is at the root of the global refugee crisis and the many problems faced by refugees. amnesty international, tackling the global refugee crisis: from shirking to sharing responsibility, report; www.amnestyinternational.org. 16/09/2016. id., «refugio e inmigración»: https://www.es.amnesty.org/en-que-estamos/temas/refugio-e-inmigracion/ 17/09/2016. 31 amnesty international, tackling the global refugee crisis: from shirking to sharing responsibility, cit., p. 24-48. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 58 https://www.es.amnesty.org/en-que-estamos/temas/refugio-e-inmigracion/ jesús garcía cívico in the sinai peninsula, where they are locked up and savagely tortured while bedouin groups demand astronomical rescue of families. another crossroad between inhuman treatment and asylum seeking takes place around the lifting of fences32. the words of a kurdish syrian from kobani after the double wire fence in hungary ("this is like guantanamo", he said) graphically supports the label of this epigraph. indeed, the deplorable images of hundreds of mostly refugee migrants crowded into the hungarian countryside of roszke, near the serbian border, many of them with children, crying over the ground are a difficult argument. human rights watch was one of the first organizations to denounce inhuman treatment before half a world could see the distribution of food thrown into bags through a fence similar to the way that human feeds the most dangerous animals in the zoo. in addition, according to unicef data, in 2015 a quarter of all refugees who arrived in europe, more than 100,000, were minors and about 10,000 crossed the border of their country alone. one year later, in 2016 and already according to europol figures, about 10,000 children would have disappeared within the eu. these "disappearances" are not only another evidence of the failures in the community asylum system but also a disturbing fact in the confluence of the juridical goods that protect the two rights about we are writting now. the examples are very numerous, but we wanted to add a concrete one that illustrates the possibility of this section (inhuman and degrading treatment in response to attempts to apply for asylum on arrival). it is an example that has to do with a prophylactic conception of the political management of the refuge. on the one hand, the path followed by australia that culminated in the so-called "pacific solution"; on the other hand, the answer of the eu, that is the pact with turkey. in both cases it seems that “we” want to avoid direct contact with the refugees. we will leave the second scenario (the eu agreement with turkey) for the third possibility of which we wrote in this work: torture after the search for refuge. in the first case, australia began by maintaining policies conforming to the standards of instruments relating to asylum and refugee rights. in 1976, for example, this country welcomed more than 124,000 refugees from the vietnam war and a decade later did the same with more than 147,500 lebanese when the civil war razed their country33. but the flow of refugees provoked a social rejection against the newcomers. a rejection that the political parties tried to take advantage of. in 1992, the government had already decided to detain any person who arrived in australia without a valid visa, including asylum seekers. a decade later, they launched the “pacific solution”. this plan consisted of the diversion of ships with immigrants and refugees. the ships were forcibly taken to internment centers on the manu and nauru islands in papua new guinea. as amnesty international denounced, australia’s “operation sovereign borders” is the country’s military-led border control operation. it began in late 2013 and 32 amnesty international, fear and fences europe’s approach to keeping refugees at bay, http://www.amnesty.eu/content/assets/doc2015/2015_documents/report_-_fear_and_fences.pdf 33 like the united states and canada, australia was a young, large, relatively sparsely populated country seeking to increase its population and economic growth through immigration. «la solución de australia, la pesadilla de los refugiados», el país, 12/08/2015. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 59 two-lane blacktop: refugees & torture involves a number of agencies which include the australian federal police, australian defence force, australian border force and department of immigration and border protection. the mandate of operation sovereign borders is to stop anyone –including asylum-seekers and refugees– from reaching australia irregularly by boat. in operations that are called “pushbacks” or “turnbacks.”34 never before has a country signatory to the un convention on refugees (both countries ratified it) completely closed the door to potential refugees35. although this is a fact with clear analogies with the intentions of not a few governments around us, starting with ours, as an example of new paradigm36, australia is the only country in the world that encloses irregular immigrants and refugees in detention centers outside its borders 37 . since then there have been cases of suicide and many other cases of worsening of the physical and mental health of thousands of immigrants, including children and sick people. according to amnesty international, by forcibly transferring refugees and people seeking asylum to nauru, detaining them for prolonged periods in inhumane conditions, denying them appropriate medical care, and in other ways structuring its operations so that many experience a serious degradation of their mental health, the australian government has violated the rights to be free from torture and other ill-treatment and from arbitrary detention, as well as other fundamental protections. in recent years, australian vessels have towed to people fleeing conflict zones or countries such as iran, afghanistan or pakistan. in many of these cases, when nongovernmental bodies agreed to the testimony of some of them, they found that they were fleeing precisely for having suffered torture, inhuman treatment or threats of torture. 34 amnesty international, australia: appalling abuse, neglect of refugees on nauru, https://www.amnesty.org/en/latest/news/2016/08/australia-abuse-neglect-of-refugees-on-nauru/ 02/10/2016 also see the guardian, “the nauru files”: https://www.theguardian.com/news/series/naurufiles 133 amnesty international, annual report 2015/2016, australia country page: https://www.amnesty.org/en/countries/asia-and-the-pacific/australia/reportaustralia/ 35 mcmaster, d., «asylum-seekers and the insecurity of a nation», australian journal of international affairs, 56:2, 2002, pp. 279-290. 36 crisp, j., a new asylum paradigm? globalization, migration and the uncertain future of the international refugee regime (working paper no. 100). geneva, united nations high commissioner for refugees, 2003. creamer, c., simmons, b.; “ratification, reporting, and rights: quality of participation in the convention against torture”, human rights quarterly, vol. 37, num. 3, 2015, pp. 579-608. 37 the united nations' top official on refugees has slammed australia before an international audience, saying he is "dismayed" by the country's treatment of asylum seekers in detention in the context of the accelerating migration crisis in south-east asia and europe. the un high commissioner for human rights, zeid raâad al hussein, told the human rights council overnight in geneva that he was "alarmed" by the current migration crises, calling on countries to put human rights first and to approach the issue "far more" comprehensively. http://www.smh.com.au/federal-politics/political-news/un-highcommissioner-for-human-rights-dismayed-at-australias-treatment-of-asylum-seekers-20150527ghaij7.html the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 60 jesús garcía cívico there is no enough space here for an exhaustive development of the rest of the analogous cases neither. we will just mention something that affects our country: in its report of 2015, the committee against torture of the united nations implicitly referred to what we call «devoluciones en caliente», and in general to the expulsion and extradition of persons "without prior assessment of the risk of return and impede access to procedures for determining refugee status". the un urged spain to review immigration legislation "with a view to unconditionally respecting the right of non-refoulement" as reflected in the concluding observations on the sixth periodic report38. the case of mistreatment and death caused by «concertinas» fits the possibility of inhuman or degrading treatment occurring in the context of the search for refuge (or arriving there); amnesty international report 2002 "spain: identity crisis: torture and racist abuse by state agents" collected more than 300 different cases of immigrants who had undergone these practices at border posts, reception centers, police stations or in the streets. 39 . the temporary immigrant shelter centers (ceti) of ceuta and melilla, public administration establishments, are still very illustrative examples of the dangerous path of something theorically conceived as first-time reception devices intended to provide basic social services and benefits to immigrants and asylum seekers identification and medical check-ups are carried out. 40): the 2015 report expressed concern about the high levels of overcrowding and the deplorable material conditions of its facilities. these were described as a threat to the health and the physical and psychological integrity of the people there. v. torture or inhuman treatment after seeking asylum there is also a third case: the possibility (an actual perversion of the asylum system) that an asylum seeker ends up in a country where he is at risk of being tortured or suffer cruel, inhuman or degrading treatment… again. this risk has great relevance due to the number of people (including children) wandering unprotected along europe (or in countries in transit and international waters). we will concentrate in some of the consequences of the agreement between the eu and turkey that entered into force on 38 it was also criticized the "excessive use of force" by the police and civil guard in border controls and demonstrations. attitudes that, according to this un agency, remain unpunished for lack of prevention measures and mechanisms to be supervised. the report recalls that some agents who have made disproportionate use of their force even became pardoned. the un considered in that report that the crime of torture, as contained in the criminal code, is poorly developed and the penalties "are still not adequate considering their seriousness." spain is requested to amend the articles in order to bring it into line with that of the international convention against torture.http://www.europapress.es/sociedad/noticiaonu-insta-espana-revisar-legislacion-inmigracion-asilo-20150515180958.html 18th september 2016 39 zúñiga lópez, l., «instrumentos jurídicos para prevenir la tortura y los tratos inhumanos y degradantes» in ararteko, la prevención y erradicación de la tortura y los malos tratos en los sistemas democráticos, colección «jornadas sobre derechos humanos» nº 7, 2004, p. 137. 40 on the legal regulation of these centers: articles 264-266 reglamento de la ley orgánica 4/2000, aprobado por real decreto 557/2011, 20th april. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 61 http://www.europapress.es/sociedad/noticia-onu-insta-espana-revisar-legislacion-inmigracion-asilo-20150515180958.html http://www.europapress.es/sociedad/noticia-onu-insta-espana-revisar-legislacion-inmigracion-asilo-20150515180958.html two-lane blacktop: refugees & torture 20th march 2016 and which authorized the return of asylum seekers to turkey under the assumption that it is a safe country for refugees. according to human rights watch, the first round of deportations authorized by the eu from the greek island of chios to turkey in april 2016 was hasty and chaotic and violated the rights of the deportees. moreover, the turkish authorities have not allowed visits by human rights groups or un agencies once there. the eu and greece, in this kind of “race” to find a populist solution outside the legal mechanisms already foreseen for the cases of asylum and refuge (those we underlined in the first section) ignored the basic rights of all people, including those who wanted to apply for asylum. these are evictions that highlight the fundamental problems of large-scale eu-wide accelerated returns to an unsafe country. the authorities did not inform them that they would be deported, nor where they would be taken, and some people were not allowed to take personal belongings. in addition, and according to unhcr, thirteen of the deportees of chios had expressed their desire to apply for asylum in greece. the greek authorities precipitated the forced returns from chios and lesbos, in order to meet a deadline announced for the commencement of the deportations. according to europe´s gatekeeper41, a quite recent amnesty international report, the eu is in danger of becoming complicit in another serious violation of human rights against refugees and asylum seekers due to turkish pressure on applicants to return to iraq or syria as well as police arrests and collective deportations forced into war zones. finally, human rights watch has denounced another side effect of the euturkey agreement: after its entry into force, cases of syrian refugees returned from the turkish borders to syria have been documented after being brutally beaten, some of them to death.42 vi. synthesis and recapitulation firstly, we linked the raison d'être of human rights of asylum and the right of not suffering torture, inhuman and degrading treatment with its common nature but also with its current global crisis situation, both are not two simple rights but, installed in the same nucleus of human rights declarations and covenants, they exemplified very well the spirit that accompanied the first phase of the history of human rights. the beginning of the second half of the twentieth century was an era characterized by the widest reflection and consensus. however, today, in the first decades of the 21st century, it is possible to see that, precisely because of a context of the opposite nature, a pattern of exception, urgency and fear –terrorist attacks and massive refugee flows– is quite irresponsible and full of nuances, the fate of both rights is again, unfortunately, similar. 41 amnesty international, europe's gatekeeper: unlawful detention and deportation of refugees from turkey: https://www.amnesty.org/en/documents/eur44/3022/2015/en/ 14/09/2016. 42 human rights watch, world report, 2016. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 62 https://www.amnesty.org/en/documents/eur44/3022/2015/en/ jesús garcía cívico both rights limit the powers that governments can justly exercise over the human beings under their power (torture) or in their territories (asylum), and these limits include an absolute ban on subjecting individuals to forms of pain that strip them of their dignity, identity and even sanity. however, the end of the seriousness conception with which the obligations and implications of the legally binding force of both rights were assumed paralleled a worrying retreat in the socio-political perception of the demands stemming from the "hard core" of human rights catalogs. we argued here for the unconditional refutation of any attempt to justify torture, without exceptions. the extension of instrumental torture as a fundamental part of the "war on terror" is becoming, in the words of massimo la torre, a veritable "legal nightmare." similarly, the “refugee crisis” is –and here we come to the expression of javier de lucas– a “political emptiness” of the eu. it is not the only case, the "pacific solution" in australia, as well as some background of the referendum on the exit of the eu (so called “brexit”) by the uk, the fences against the immigrants of the hungarian president viktor orbán and the sinister referendum to reject the quotas refugees imposed by the eu, or the rise of extreme right-wing parties to the fears of european citizens (from austria to finland) for the arrival of refugees, make clear the new paradigm: the abandonment of the basic legal obligations of the right of asylum. secondly, we wanted to draw a picture of the (very current) state of a triple zone of intersection between the right not to suffer torture or inhuman or degrading treatment and the rights of asylum and refuge: a) torture as the cause of the search of refuge; b) torture and/or inhuman and degrading treatment in the search for shelter; c) torture and/or inhuman or degrading treatment after the search for shelter. with regard to the first question, the seriousness of the crimes against the syrian population, the extent of torture in eritrea, iraq, afghanistan, pakistan, sudan, south sudan, the democratic republic of the congo, the central african republic and other refugee origins continues to explain the arrival of potential asylum seekers to the eu (and many other countries). at the same time, if the real danger of torture or escape from it is today one of the most worrying causes of the ungrateful, dangerous and obstacle-free refugees seeking asylum in europe, another scandal dereives from the most basic abuses and violations of human rights in this quest for refuge, from torture itself: from the terrible case of eritrean refugees on their journey through africa to the thousands of dead people in the mediterranean sea. finally, the agreement between the eu and turkey which entered into force in march 2016 authorizing the return of asylum-seekers to turkey under the assumption that it is a safe country illustrates the possibility that violations of rights at the end of the refugee journey. we mentioned in the title ot his work the image of a paved road in two directions, a nod to the famous film of monte hellman, but regarding with cinametophrapic images, we would particularly like to finish with the recent film by anton corbijn based on john le carre's novel the most wanted man (2014) as it perfectly illustrates the devilish two-way road in this article´s tittle: at the beginning of this film, a young chechen with aspect of having been brutally tortured leaves naked of a dark sewer of hamburg. his past is a past of torture in russian prisons, his present is the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 63 two-lane blacktop: refugees & torture the deseperate seek for refuge and peace through strong pacifist convictions expressed in his muslim faith, his future will be become him just in an object coveted by his "informative value" by the new intelligence agencies that are permanently removed from the principles and values (if any) of the old spies of that distant time full of contradictions, but a time as well, when it was possible to achieve that normative code of universal validity that we called human rights covenants. references aymerich, i., «orígenes ideológicos de la distribución de responsabilidades públicas y privadas en la garantía de los derechos humanos», in zamora, f. j., garcía cívico, j., sales pallarés, s., (eds.), la responsabilidad de las multinacionales por violaciones de derechos humanos, cuadernos democracia y derechos humanos, universidad de alcalá, madrid, 2013, pp. 21-40. bennet, w. l., lawrence, r. g., livingston, s., «none dare call it torture: indexing and the limits of press independence in the abu ghraib scandal», journal of communication, 56, 2006, pp. 467–485. bufacchi, v. and arrigo, j. m., torture, terrorism and the state: a refutation of the ticking-bomb argument. journal of applied philosophy, 23, 2006, pp. 355–373. carver, r., handley. l., (eds.); does torture prevention work?, liverpool university press, 2016. claude, r., jabine, th.; “exploring human rights issues with statistics, in human rights and statistics, getting the record straight, university of pennsylvania press, 1992. creamer, c., simmons, b.; “ratification, reporting, and rights: quality of participation in the convention against torture”, human rights quarterly, vol. 37, num. 3, 2015, pp. 579-608. crisp, j., a new asylum paradigm? globalization, migration and the uncertain future of the international refugee regime (working paper no. 100). geneva, united nations high commissioner for refugees, 2003. de lucas, j., «sobre el proceso de vaciamiento del derecho de asilo por parte de los estados de la ue», ars iuris salmanticensis, vol. 4, junio 2016. de lucas, j., mediterráneo, el naufragio de europa, tirant lo blanch, valencia, 2016. dershowitz, a. d., «is there a torture road to freedom?», los angeles times, 8 de noviembre de 2001. gale, p., «the refugee crisis and fear. populist politics and media discourse», journal of sociology, 40(4), 2004, pp. 321-340. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 64 jesús garcía cívico garcía amado, j. a., paredes castañón, j. m., (coords.) torturas en el cine, tiran lo blanch, valencia, 2005, p. 39. garcía cívico, j. «¿qué es un indicador de derechos humanos y cómo se utiliza?», derechos y libertades: revista del instituto bartolomé de las casas, año nº 15, nº 24, 2011. goodwin-gill, g., the refugee in international law, clarendon press, oxford, 1996. harbury, tj. k., truth, torture and the american way. the historical consequences of u. s. involvement in torture, beacon press, boston, 2005. human rights watch, «no more excuses: a roadmap to justice for cia torture», 2015. https://www.hrw.org/report/2015/12/01/no-moreexcuses/roadmap-justice-cia-torture. human rights watch, world report, 2016. human rights watch; “trump’s national security choice won’t rule out torture” https://www.hrw.org/news/2016/11/18/us-trumps-national-securitychoice-wont-rule-out-torture 15/11/2016. ignatieff, m., torture: does it make us safer? is it ever ok?, kenneth roth and minky worden, (eds.), the new press / human rights watch, 2006 amnesty international, tackling the global refugee crisis: from shirking to sharing responsibility, report; www.amnestyinternational.org. 16/09/2016. id., «refugio e inmigración»: https://www.es.amnesty.org/en-queestamos/temas/refugio-e-inmigracion/ 17/09/2016. amnesty international, fear and fences europe’s approach to keeping refugees at bay, http://www.amnesty.eu/content/assets/doc2015/2015_documents/report_fear_ and_fences.pdf amnesty international, europe's gatekeeper: unlawful detention and deportation of refugees from turkey: https://www.amnesty.org/en/documents/eur44/3022/2015/en/ 14/09/2016. amnesty international, australia: appalling abuse, neglect of refugees on nauru, https://www.amnesty.org/en/latest/news/2016/08/australia-abuseneglect-of-refugees-on-nauru/ amnesty international, annual report 2015/2016 international organization for migrations, fatal journeys volume 2: identification and tracing of dead and missing migrants, geneva, 2016. kaleck w., «justice and accountability in europe: discussing strategies», cia – “extraordinary rendition” flights, torture and accountability – a european approach, european center for constitutional and human rights, second edition, 2008, p. 15. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 65 two-lane blacktop: refugees & torture landman, t., «measuring human rights: principle, practice and policy», human rights quarterly, 26, 2006, pp. 906-931. la torre, m., «la teoría del derecho de la tortura» derechos y libertades: revista del instituto bartolomé de las casas, nº 17, 2007, pp. 71-87. la torre., m., «a dangerous liaison. tortura and law», derechos y libertades, número 28, época ii, enero 2013, pp. 25-38. lauterpacht, e. y bethlehem, d., refugee protection in intrenational law, cambridge, 2001. mcmaster, d., «asylum-seekers and the insecurity of a nation», australian journal of international affairs, 56:2, 2002, pp. 279-290. rosemann, n.; «the privatization of human rights violations – business’ impunity or corporate responsibility? the case of human rights abuses and torture in iraq», non-state actors and international law, 5, 2005, pp. 77-100. scahill, j. guerras sucias. el mundo como campo de batalla, barcelona, paidós, 2013. sands, ph., the torture team. rumsfeld’s memo and the betrayal of american values, palgrave-macmillan, new york 2008. sassen, s., expulsions, brutality and complexity in the global economy, harvard university press, 2014. sivakumaran, s., «torture in international human rights and international humanitarian law: the actor and the ad hoc tribunals», leiden journal of international law, 2005, pp. 541-556. stenberg, g., non-expulsion and non-refoulement. the prohibition against removal of refugees with special reference to articles 32 and 33 of the 1951 convention relating to the status of refugees, iustus förlag, uppsala, 1989. unhcr, handbook of procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, ginebra, 1988. unhcr, global trends, forced displacement in 2015. yoo, j., the powers of war and peace, university of chicago press, chicago, 2005. zamora cabot, f., «acaparamiento de tierras (land grabbing) y empresas multinacionales: el caso mubende-neumann», in papeles el tiempo de los derechos, 2013, (5). žižek, s., «sobre terrorismo y tortura», in pasajes: revista de pensamiento contemporáneo, , nº. 17, 2005, pp. 21-27 p. 23. zúñiga lópez, l., «instrumentos jurídicos para prevenir la tortura y los tratos inhumanos y degradantes» in ararteko, la prevención y erradicación de la tortura y los malos tratos en los sistemas democráticos, colección «jornadas sobre derechos humanos» nº 7, 2004, p. 137. the age of human rights journal, 8 (june 2017) pp. 49-66 issn: 2340-9592 doi: 10.17561/tahrj.n8.3 66 reasonableness in the concept of reasonable accommodation1 rafael de asís roig2 abstract: reasonable accommodation is one of the pillars upon which the recognition of the rights of people with disabilities rests. it acquires its full meaning when understood in connection with the concept of universal design, since both concepts fall within the framework of universal accessibility. an accurate understanding of reasonable accommodation requires, on the one hand, clarifying its connection with universal design and accessibility, and on the other, unraveling what “reasonable” means. the reasonableness in accommodation takes to three kinds of reflections. on the one hand the one concerning non-discrimination, which requires to assess, when examining whether the adjustment is justified or not, if it entails a violation of the principle of equality (since it differentiates or it does not, in an unjustified manner, thus harming a human right such as accessibility). in this justifying test there is an essential methodological tool at hand, which shall be regarded as the second great reflection on reasonableness in accommodation: the principle of proportionality. in virtue of this principle, the reasonableness test requires facing the adjustment’s adequacy and necessity and, in addition to that, the advantages or sacrifices that produces on rights. and since both of these reflections do not ensure a single answer, reasonableness requires a last reflection on the basis of acceptability. the adjustment’s justification, or the lack of it, shall be subject to the community’s acceptance or rejection. keywords: accessibility, reasonable accommodation, disability, universal design. summary: i. universal accessibility and reasonable accommodation; ii. the meaning of reasonableness; ii.1. three dimensions in reasonableness; ii.2. reasonableness in accommodation; iii. reasonableness in disability; iii.1. reasonableness and unreasonable costs; iii.2. a comprehensive vision. reasonable accommodation is one of the pillars upon which the recognition of the rights of people with disabilities rests. it acquires its full meaning when understood in connection with the concept of universal design, since both concepts fall within the framework of universal accessibility (which, in general, but particularly so in the field of disability, is part of the right to have rights).3 1 i would like to thank f. javier ansuátegui, m. c. barranco, p. cuenca, a. palacios and m. l. serra, for their comments and suggestions for this paper’s rough draft. there is a spanish version of this paper in salmon, e. and bregaglio, r. (2014). 2 instituto de derechos humanos bartolomé de las casas, international, ecclesiastical and philosophy of law department, universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). 3 i would like to point out, just as a reminder, that the rights of the disabled unfold within generalization and specification. on the rights of people with disabilities see, for a general scope, cuenca, p. (2012). generalization expresses the need for people with disabilities to be entitled to the same rights as any other person; specification conveys the necessity of recognizing people with disabilities specific rights. well then, taking into account the preceding statement and contrary to what i favored in de asís, r. (2013), the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 42 rafael de asís roig an accurate understanding of reasonable accommodation requires, on the one hand, clarifying its connection with universal design and accessibility, and on the other, unraveling what “reasonable” means. admittedly, achieving a fully comprehensive notion of this idea seems almost impossible. in spite of that, in the forthcoming pages i will attempt to offer some reference points in order to provide the term with a meaningful content. i. universal accessibility and reasonable accommodation as has just been said, universal accessibility is one of the major principles (rights) when dealing with the issue of disability. it therefore comes as no surprise that it appears in the preamble of the convention on the rights of persons with disabilities (crpd) being its importance highlighted “in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.”4 as to this international enactment, accessibility is also comprised in the general principles provided by article 3 and there is even a provision as a whole (article 9) devoted to this particular principle. hence, article 9 crpd is worded as follows: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure for persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas”. in most legal texts accessibility is enshrined as a principle. however, accessibility may be brought forward as: a) a requirement for action by the public authorities as well as a validity standard for any legal performance (legal principle of universal accessibility); b) a relevant claim tied to the defence of any fundamental right (universal accessibility falls within every fundamental right’s core content); c) a need for non-discrimination (the right to accessibility on an equal basis); d) a right itself, the right of access to goods, products and services not related to human rights, understood as a performance right (of a statutory or a fundamental nature) which correlatively brings along the “design for all” obligation ((de asís, aiello, bariffi, campoy, and palacios 2007: p. 104 ff). furthermore, universal accessibility is integrated and grounded in the crpd by reference to three other major rights: the right to an independent living, to a full participation in society and equal opportunity. both universal design and reasonable accommodation are part of generalization as long as they aim at extending the enjoyment of human rights to persons with disabilities. 4 in order to attain an accurate understanding of the convention palacios, a. (2008) is a must-read. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 43 reasonableness in the concept of reasonable accommodation independent living shall mean “the situation in which disabled people retain their full ability to make decisions about their very existence and actively take part in their community, in accordance with the right to the free development of personality”5. article 19 of the convention addresses the right to an independent living as follows: “states parties to the present convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, especially by ensuring that: a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement”. full participation in society is a right covered by the definition of disability which lays the foundations for many of the rights set forth in the crpd6. accordingly, article 1 reads: “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” there is no doubt, however, that equal opportunity rights provide the basis for accessibility thereby integrating the two previous rights. the referred equal opportunity rights, as n. bobbio pointed out, “are aimed at placing every member of a given community on equal starting points with regards to participation conditions in the competition of life or in the conquest of the most significant milestones in a lifetime” (bobbio 1993: 78). it brings along “measures focused on removing those obstacles that prevent individuals from competing on equal terms” (barranco 2011: 36). nevertheless, as m.c. barranco has stated, it may turn to be insufficient to ensure the recognition and enjoyment of rights on an equal basis. actually, “it is easy to imagine situations in which two individuals have equal opportunities to compete but due to the given circumstances, individuals that belong to a certain group would win every single time” (barranco 2011: 38). this happens because in many cases the reflection on equality is not only projected onto specific practices or situations but embedded in social structures. this is why it is important to use a broad concept of “opportunity” when speaking about equal opportunities. this concept must be so overarching as to comprise structural situations. along these lines, the demand for accessibility does not take place in the abstract or in relation to domains with an individual or a personal scope, but it is rather applied to goods, products and services linked to social life which some people (the majority) enjoy. 5 as defined by article 2 of the spanish general law on the rights of persons with disabilities of 2013. 6 article 22 of the spanish general law on the rights of persons with disabilities of 2013 begins by pointing out that “persons with disabilities are entitled to live independently and to a full and effective participation in every aspect of life.” the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 44 rafael de asís roig the bottom line is that although accessibility can be accomplished through different means, two of them are usually highlighted: universal design and reasonable accommodation. pursuant to article 2 of the spanish general law on the rights of persons with disabilities of 2013, universal design means “the activity aimed at planning and conceiving from the very beginning, where possible, environments, processes, goods, products, services, objects, instruments, programs, devices or tools to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.” it is an obligation stemming from the right to universal accessibility in each of its dimensions, to be complied with, not only by public authorities, but rather by every individual who participates in the making of these goods and products, in the provision of a service, or in the enforcement of a given right. therefore it shall be construed as an obligation that accounts for the importance of taking the validity of rights among subjects of private law in a serious manner when it comes to enforcing the rights of the disabled. from a conceptual standpoint, what is troublesome about universal design lies on determining the meaning of the term ‘possible’, which, as it may have been appreciated, sets an internal boundary for the content of this principle. from a general point of view, a first sense of ‘possible,’ the most basic one, closely relates to the state of knowledge and research. therefore, the design for all might be constrained by progress made in science and technology as well as by human diversity and our chances to learn about it. it is a boundary which, legally speaking, is amply illustrated by the old aphorism “ad impossibilia nemo tenetur.” in addition, the design for all might find other bounds that have to do with the consequences tied to its enforcement and which complement the mentioned primary meaning of possible. as it has been previously stated, the design for all is aimed at accomplishing universal accessibility. nonetheless, there may be occasions when measures brought along by universal design might lead to harmful outcomes which could be prejudicial for other rights at stake, thus weakening its legal foundation. let’s imagine, for instance, that in order to meet universal design standards it is necessary to cause environmental damage or that a blatantly unreasonable cost which causes the nonenforcement of other rights at stake is required. in these situations, design for all shall be deemed unreasonable, thus turning the need for what is possible into the need for reasonableness. universal accessibility, as it happens with every right, is not an absolute right. this obviously implies that the universal design obligation is not an absolute right either. therefore, when focusing on the consequences, the impact of universal design on rights and their cost must be taken into account. however, as it will be noted below, these are issues that shall not be addressed separately, being the latter determined by the first. founding the boundaries of design on reasonableness only makes sense when such the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 45 reasonableness in the concept of reasonable accommodation design entails undermining the enjoyment of a given right in an unacceptable manner. on this point, reasonableness is normally assessed in terms of proportionality. i will take care of the matter later. reasonable accommodation measures (also referred to as reasonable adjustments) intend to shape the environment, goods and services to meet the particular needs of a given person. in accordance with the crpd, reasonable accommodation means “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”7 it is a right meant to fulfill the legal interest protected by the right to accessibility, so it can also be considered as an expression of this principle or right. hence, reasonable accommodation acquires its fullest dimensions when the underlying legal interest in accessibility cannot be fulfilled universally, thus becoming an actual right aimed at solving a given situation (palacios 2004). the right to reasonable accommodation encompasses neither a preferential nor a privileged treatment. moreover, it does not bear a time dimension and it shall not be understood as a mere measure either. nevertheless, the adjustments are not aimed at replacing the duty to provide accessibility or let alone to limit it. admittedly, the lack of accessibility, i.e., the breach of the accessibility obligation, may or may not be justified, and that will depend on whether a design for all has been accomplished (either originally or by means of accessibility measures). if it has actually been accomplished, either because there is in fact universal accessibility or because its existence was either impossible or unreasonable, we cannot talk about a violation of the duty to provide accessibility. if it has not been accomplished, because there is no universal accessibility and its existence was possible or reasonable, we can in fact talk about non-compliance with the duty to provide accessibility. in this latter case we are dealing with a discrimination scenario that must be settled by remedying the unsatisfactory situation and accomplishing accessibility. as i have stated elsewhere, universal design might sometimes encounter constraints related to the progress made in technology and knowledge, which could entail the lack of accessibility with regards to certain goods, products and services. in these cases, the lack of accessibility does not amount to discrimination against anybody (because it is justified, i.e., “universal design was either impossible or unreasonable”) and can be remedied by means of reasonable 7 as the un committee on the rights of persons with disabilities has pointed out, “the duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation (workplace, school, etc.) in order to enjoy her or his rights on an equal basis in a particular context. here, accessibility standards can be an indicator, but may not be taken as prescriptive. reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. reasonable accommodation seeks to achieve individual justice in the sense that non-discrimination or equality is assured, taking the dignity, autonomy and choices of the individual into account. thus, a person with a rare impairment might ask for accommodation that falls outside the scope of any accessibility standard”. section 26 of the general comment on article 9 of 11 april 2014 (general comment no. 2). the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 46 rafael de asís roig accommodation (since the mentioned goods, products and services are linked to participation in society). however, if the breach of the duty to provide universal design and consequently the lack of accessibility are not justified (i.e., “if universal design was possible or reasonable”), these non-compliances would in fact amount to discrimination thus preventing reasonableness and reasonable accommodation from coming into play. hence the importance of correctly interpreting the requirement that has been put forward, so it does not become an outlet for the duty to provide accessibility or universal design (de asís 2013: 80). a comprehensive understanding of accessibility embodies: (i) universal design, which operates as a general principle from which specific obligations or duties stem; (ii) accessibility measures, which play a role when universal design is not achieved; (iii) reasonable accommodation, which arises when there is grounds for the non-universal nature of accessibility. in other words, the requirement for universal accessibility is fulfilled through universal design. however, there may be situations in which universal design does not allow to comply with the accessibility obligation. these situations could be the result of: (i) universal design was either not possible (boundaries set forth by science, technology, knowledge or human diversity) or unreasonable (it is prejudicial for rights at stake or involves a disproportionate cost); (ii) universal design was indeed possible but actually not performed. in the first case, the lack of accessibility is justified and accommodation comes into play. in the second, there is no grounds for the lack of accessibility, amounting to a discrimination scenario that is not to be remedied by means of reasonable accommodation. in these situations, the lack of accessibility can only be solved by making the given good, service, or right universally accessible,8 and not by carrying out reasonable adjustments. in short, the content of universal accessibility is constrained by three types of circumstances that could be considered as the bounds for what is necessary, possible and reasonable. the bounds of what is necessary refer to the kind of goods, products or services onto which accessibility is projected (and that must be tied to participation in society). the bounds of what is possible relate to the status of scientific knowledge and human diversity (there are indeed limitations in knowledge, and the greatness of human diversity makes it impossible to fully accomplish accessibility standards). the bounds of reasonableness address the absence of grounds for accessibility because rights at stake and goods are affected or because it brings along unreasonable costs (on which i will focus later). 8 in these cases, accessibility is accomplished by carrying out special general measures. this brings along a strengthened claim for universal design as opposed to these accessibility measures, since it is a principle more aligned with a less stigmatizing approach to disability, pointing out that these measures fall within a distinct approach which does not favor the inclusion of people with disabilities. it is actually stated that many of the policies aimed at fostering accessibility entail special measures for certain groups or individuals that perpetuate a picture of “abnormality” certainly incompatible with the disabilities social model’s philosophy. for instance, it shall be upheld that it is better to have just a ramp rather than having a staircase and a ramp. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 47 reasonableness in the concept of reasonable accommodation in other words, discrimination on the grounds of the lack of accessibility takes place when providing a design for all is possible as well as reasonable yet it is not carried out. however, there might be another way of breaching the duty to provide accessibility and another form of discrimination stemming from a bad use of adjustments. the very conception of accessibility incorporates a dimension regarding accommodation and related to reasonableness at the same time. as it has been stated, the need for reasonableness in the adjustments is enshrined in the definition of reasonable accommodation. thereupon, there might be a lack of accessibility, because it has not been possible to achieve a design for all, which cannot be remedied due to the unreasonableness of the possible adjustment to be made. in these cases there is no room to talk about a breach of the duty to provide accessibility. nevertheless, if the adjustment shall be deemed reasonable, its non-performance amounts, once again, to discrimination. hence, reasonableness comes up again as a boundary for accessibility, although now in its projection onto accommodation. ii. the meaning of reasonableness as we have just examined, the terms possible and reasonable are central when studying accessibility. we have related the first to the state of knowledge (both scientific/technical and about human diversity) whereas the latter has been tied to legal reasoning and clashes with rights or other fundamental legal interests. in this section i am keen on analyzing the meaning of reasonableness within the context of accommodation. for this purpose, i will start by unraveling the general meaning of this term and secondly i will outline its role in accommodation. first of all i will clarify the power of the right to accommodation and the context where it shall be placed. as it has been stated before, we are dealing with an essential right within the framework of the rights of the persons with disabilities. accommodation, as any other right, can have boundaries. nevertheless, since it is a result of a restriction on accessibility, the legal grounds for these boundaries requires a greater argumentative effort. the adjustment´s nature becomes really important at this point. indeed, the requirement for reasonableness allows relating the adjustment in question to other parameters such as interests, principles, rights... consequently, if the adjustment has a constitutional character, the parameters must be constitutional as well, whereas if it has a statutory nature the parameters must have this same essence; if accommodation shall be considered a human right, the parameters must be those of that legal context. hence, as it happened when dealing with accessibility (maybe with greater justification in this case), the right to reasonable adjustments can (must) be construed as a human right. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 48 rafael de asís roig ii.1. three dimensions in reasonableness i will begin by underscoring that rational does not mean reasonable. reasonableness refers to goals and values9; rationality basically brings forward logic and practical arguments, along with a domain in which there seem to be clear referents. along these lines we might think that there is some sort of basic rationality affecting every domain of knowledge (a common compliance with deductive reasoning and the principles of practical rationality, such as consistency, efficiency, coherence, generalization...), and alongside there is another kind of rationality that connects to the first, which shall be understood within a particular domain and that is to be called sectoral. for instance, we could refer to a legal rationality based on rules. in this dimension, a rational behavior in law is the one that can be labeled as lawful.10 nonetheless we must recall that there are different rationality criteria, thus legal rationality could be found irrational from an economic outlook. something similar applies to reasonableness, since it can have a general dimension but it can also project itself onto a particular domain made up of a series of principles and values. according to the foregoing, there is no reason for rationality and reasonableness to coincide. therefore, there can be unreasonable rational measures, while we can also think of reasonable decisions which are also irrational. however, this last point calls for certain clarification. as noted above, when dealing with rationality a difference must be made between basic rationality and sectoral rationality, and the same applies to reasonableness. reasonable but irrational measures are implemented when combining different domains of knowledge. this is why something could be reasonable from an ethical standpoint yet irrational from a legal perspective. the context of reasonableness is opposed to that of truth and certainty. therefore, what is reasonable in the legal domain has nothing to do with the use of rules, despite the fact that these rules could be assessed in terms of reasonableness. reasonableness relates to practical wisdom,11 to arguments and principles. we shall not consider that applying reasonableness leads us to the only right answer there is. contrarily, it is indeed useful in order to define a framework for admissible decisions, thus allowing us to identify the wrong ones. 9 according to l. recaséns, reasonableness has to do with experience (recaséns siches 1971: 49). 10 in the view of m. atienza, a legal decision shall be deemed strictly rational if and only if: 1) follows the rules of deductive reasoning; 2) follows practical rationality principles, i.e., consistency, efficiency, coherency, generalization and honesty; 3) is made without avoiding at least one or more binding sources of law 4) it is not adopted on the basis of ethical or political criteria which are not specifically provided by the legal system (atienza 1987: 193-194). 11 see the interesting book by schwartz, b. y sharpe, k., practical wisdom, riverhead books, new york 2010. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 49 reasonableness in the concept of reasonable accommodation on the other hand, it must be highlighted that reasonableness has gained such salience in the legal domain as to be also used as a validity parameter (along with rationality). reasonableness is central in the constitutional arena (mercader uguina 2008: 127 ff.) since this is where law’s evaluative dimension becomes more evident.12 in this domain, reasonableness is mainly used for assessing the constitutional grounds for regulatory decisions. in common law, the notion of “principle of reasonableness” is normally used for referring to the substantive due process of law, a doctrine that obtained its utmost splendor in the early 20th century, and which was meant to assess the constitutionality of a rule on the basis of the reasonable relation between means and ends. reasonableness has been used when analyzing the safeguards of the right to an effective legal protection, putting together four control canons: a) congruence; b) line of reasoning; c) the absence of errors; and, d) the reasonableness of the court’s judgment (rocas trías and ahumada ruiz 2013). finally, the principle of reasonableness has projected itself onto equality protection, being used in this domain to distinguish between differentiation and discrimination (nino 2005: 419; martinez tapia 2000: 99). in all of these applications of the idea of reasonableness in law, the latter has borne different referents, often tied to common sense and practical wisdom. but there are two referents that play an important role in this use of reasonableness. although i briefly outline their respective meanings below, for now it is important to remark that whereas the first sets forth a series of steps and dimensions aimed at setting boundaries for what is reasonable, the latter focuses on assessing the outcomes of a given decision. in brief, reasonableness in law takes concrete form in the shape of nondiscrimination, proportionality and acceptability. ii.2. reasonableness in accommodation as we have seen, the requirement for reasonableness in accessibility and accommodation has two dimensions. the first entails some sort of justification for the adjustment in question within the universal accessibility approach. accommodation is justified on the grounds of the need for universal accessibility and its reasonableness stems from the latter. in these cases, the lack of accessibility has occurred because providing a universal design has been impossible or was deemed unreasonable. nevertheless, the implementation of a particular measure such as accommodation can indeed be reasonable. in these situations universal design is not within reasonableness, 12 in the view of the spanish constitutional court, "reasonableness is not strictly synonymous with hermeneutic correction, but in addition to that, it is a requirement for compliance with the values enshrined in the constitution”. constitutional court judgment 261/89 of 16 october, legal grounds 4. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 50 rafael de asís roig but accommodation is certainly reasonable (in principle because the rights or interests are affected in a lesser degree). the second dimension relates to the actual adjustment and its impact. this dimension calls for a reasonable adjustment so it can work as a boundary for the accessibility approach. reasonableness, for this matter, involves leaving out certain measures that, although shall be deemed necessary to achieve accessibility, cease to be justified once another set of parameters starts to be taken into consideration (cayo bueno 2012: 159 ff.). in these cases, the accommodation in question has an excessive impact on some rights and legal interests, allowing the principle of proportionality to step in, through which it is assessed whether the adjustment entails an undue or unreasonable burden. in a way, reasonableness works as a double test on accessibility. the first has to do with the grounds of a universal measure allowing for general access to a good or a service; the second relates to the single measure enabling a particular access to a good or service. in all events, reasonableness shall not be an outlet for the universal design requirement nor shall become a strategy that enables to disguise actual cases of discrimination as for the enjoyment of rights or on the basis of disability. what i want to underscore with this is that the adjustment applies when the lack of accessibility is justified, but denying the adjustment might vary that justification and turn the mentioned absence into a case of discrimination. as it has been stated, reasonableness in accommodation entails, on the one hand, the justification for the lack of universal accessibility, and on the other, the adjustment’s justification. this call for reasonableness is expressed mainly in terms of proportionality. notwithstanding, as it was pointed out above, the requirement for reasonableness has two other dimensions, which are non-discrimination and acceptability. it is common to relate non-discrimination to the prohibition of prejudicial unjustified unequal treatment. however, non-discrimination also encompasses the prohibition of equal treatment without justification (i.e. the prohibition of discrimination on the basis of undifferentiation). this is because discrimination involves a violation of equal treatment, and equality plays a key role both when the unequal treatment is justified and also when there is justification for providing an equal treatment.13 hence, when examining non-discrimination, we shall focus on how we assess a given treatment and its weight. 13 as a matter of fact, in the legal context we normally connect discrimination with unjustified unequal treatment from a “counterfactual” standpoint according to which all human beings are equal. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 51 reasonableness in the concept of reasonable accommodation it is along these justification attempts where reasonableness turns into the requirement for proportionality.14 as it has been remarked, the principle of proportionality is the product of three major “sub-principles”: adequacy, necessity and proportionality (bernal pulido 1997: 100 ff.). the adequacy principle expresses the demand for any right’s restriction to adequately match a legitimate constitutional purpose. hence, when understood within the reasonable accommodation domain, the principle of adequacy states that a limitation in the adjustment could only be performed taking a constitutional aim as the reference and assuming that setting boundaries for the adjustment is an adequate means to achieve the mentioned constitutional ends. under this principle, the adjustment could only be denied when it hindered the attainment of another constitutional interest and denying the accommodation was deemed as an adequate means to preserve this interest. nevertheless, one might also argue that the adjustment’s weight or importance is such that its performance is justified inasmuch as other measures enabling the satisfaction of the other interest can still be carried out. ultimately, the adequacy principle calls for a specification on whether the legal interest opposing the adjustment can be met through other means. the principle of necessity declares that any adequate limitation on a right must be as benign as possible for the said right as compared to the remaining adequate limitations. with regards to accommodation, it sets forth that the limiting measure must be as harmless as possible (within the adequate measures), thus requiring clarifying whether or not there are better measures. strictly speaking, the principle of proportionality (also called weighing), provides that any adequate and necessary limitation on a given right must pass the advantages and sacrifices test. this test means that the limitation’s advantages shall overcome the sacrifices to be made (both for the right holders and citizens at large) within constitutional values. in short, it requires assessing and weighing the interests at stake. therefore, proportionality involves: (i) examining whether the interests ruled out as a result of the adjustment can be fulfilled with other measures or just denying the adjustment, (ii) assessing whether there are better measures (adjustments); (iii) comparing the advantages and sacrifices attached to one and the other. applying proportionality standards poses a series of issues and it can hardly be stated that its use ensures that the right decision will be made. determining ends, advantages, sacrifices, adequacy, etc…, is subject to different possible judgments. 14 as many others have stated, we are living the era of proportionality. see, in this regard, barak (2012: 457). the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 52 rafael de asís roig proportionality, as a criterion which legitimizes a possible limitation on a given right, involves a broad subjective margin of appraisal, and accordingly, what is relevant in its application are the underlying reasons. at this point, and within an argumentation grounded on rights, it is important to warn that not every reason is to be taken into consideration or weighed on an equal basis.15 the last dimension of reasonableness is acceptability (aarnio 1991: 71 ff.).16 the importance of the latter increases as we are confronted with the impossibility of reaching the right answer, as it has been pointed out several times, just through proportionality. the requirement for acceptability calls for decisions allegedly acceptable to the community. it is thus related to the need for the community’s reasonable expectations to be met. a reasonable decision shall be made within the expectations of the decision’s addressees, and within this framework it shall be the one allegedly featuring the widest acceptance. certainly, the most complex cases, those that can only be solved on a one-byone basis, are the ones in which the accommodation clashes with actual human rights. this is why it is essential to consider reasonable accommodation as a human right itself. iii. reasonableness in disability as has been shown, the meaning of reasonableness has a central importance in the context of the persons with disabilities. in this section i will attempt to frame this idea within the mentioned context. notwithstanding, prior to that we will examine an argument relating to the costs of the design or the adjustment which has been put aside until this very moment. 3.1. reasonableness and unreasonable costs as we have already seen, one of the limits set on universal accessibility, which can apply both to universal design and reasonable accommodation, relates to unreasonable costs. indeed, when dealing with universal accessibility we saw how what is possible was integrated in its definition, thus allowing for an assessment of its economic costs in terms of reasonableness. we have also faced this assessment when tackling reasonable accommodation, since the latter can be limited, from a conceptual 15 in spain, article 66 (2) of the general law on the rights of persons with disabilities of 2013 states the following: “as for ascertaining if a given adjustment is reasonable… the costs, the discriminatory effects that could entail for the disabled not to adopt it, the structure and characteristics of the person, entity or organization that must implement it, and the possibility of obtaining official financing or any other sort of aid shall be taken into account.” 16 i have addressed this principle in de asís, r. (2005). the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 53 reasonableness in the concept of reasonable accommodation standpoint, by the unreasonable costs of its performance.17 therefore it seems appropriate to carefully examine this limit’s scope with respect to accessibility, thus providing the full meaning of reasonableness in this domain. let me begin by recalling, as i have consistently done throughout this paper, that we are in the human rights domain, which undoubtedly restricts the referents that can be used as well as their scope. that said, it shall be noted that rights, as could not be otherwise, have always been limited by their economic feasibility, either by means of reflecting on scarcity or the so called “reservation of the possible”. indeed, the focus on economy and on the costs of measures is by no means foreign to the context of rights. the traditional view has talked about material boundaries of rights when referring to constraints that preclude the satisfaction of the underlying interests and needs. and among the examples of these boundaries we can find references made to scarcity. nevertheless, the understanding of scarcity as a material boundary of rights shall aim for neutrality in its formulation, i.e., it must be an expression of natural scarcity.18 for instance, the claim that every individual in the world shall own a true goya painting could not be considered as a fundamental right. something similar, though not identical, applies to an alleged right to never getting sick. the material boundaries thus entail a limitation to certain demands which are unable to be met in a generalized manner due to natural scarcity. however, facing this natural scarcity a built one can be found, i.e., the one stemming from human decisions, in judgment calls that award a higher value to some other interest deemed as more relevant (ansuátegui 1991-92: 147 ff.).19 in these 17 however, the un committee on the rights of persons with disabilities, in its comment on article 9 of 11 april 2014 (general comment no. 2) has noted that the economic costs shall not be put forward as a justification for not attaining accessibility (accomplishing universal design) but that it is indeed a valid argument as for grounding a non-performance of the adjustment. “state parties, in accordance with the convention, are not allowed to use the austerity measures as an excuse to avoid ensuring gradual accessibility for persons with disabilities. obligation to implement accessibility is unconditional, i.e. the obliged entity may not excuse the omission referring to the burdens of provision the access for persons with disabilities. contrarily, the duty of reasonable accommodation only exists, if implementation constitutes no undue burden on the side of the entity” (section 25). on universal design, see section 15 of the comment. 18 it is important to distinguish between natural and real scarcity, i.e., between the one that naturally exists and the one we create. as ferenc fehér points out: "the most important indicator to support this claim is the malthusian fiasco. many times we exceed the malthusian production level with respect to the population growth, and despite this we produce a number of edibles which is more than enough for the survival of humankind. if there is hunger in our world it is because it has been artificially provoked, and not caused by ‘natural scarcity’" (feher (1993: 64). 19 in other occasions i have used this example to illustrate the argument. let’s imagine a planet in which 60% of the population were women and the remaining 40% were men. an alleged right to get married (providing that it was ethically justified) would not be troublesome and could even become widespread. however, it could indeed be troublesome to have this kind of right inasmuch as divorce, a second marriage and same sex marriage were to be banned. in view of this we can hardly claim that this difficulty is caused by scarcity or at least only by it. in better words, with what we are confronted here is a situation of scarce the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 54 rafael de asís roig situations, a right’s boundary is set not because it is actually impossible to fulfill it, but because this right is ranked below some other interest. hence, a weighing process is needed. the focus on the economic costs as a limit for rights has taken place alongside with the so-called “reservation of the possible.” this expression has its origins in germany in the early 70s.20 it was meant for underscoring the dependency of economic, social, and cultural rights on the state’s economic capacity, and at the same time for disregarding any justification, on the grounds of unreasonableness, for the satisfaction of these rights when fulfilling them would entail unreasonable costs (ansuategui roig 2014: 24 ff.). beyond the distinct ideological nature of this reservation, since it is only projected onto economic, social and cultural rights (when all rights involve costs for the state), the reservation of the possible is useful when it comes to highlighting the connection between rights and the economy.21 both the reservation of the possible and the scarcity arguments take us again to the principle of proportionality, which as we have seen, involves studying the relation between rights and interests. limiting a right on the basis of its excessive costs is an argument for which there is no room in the context of rights, unless it is proven that the mentioned cost is unbearably harmful for other rights. at this point what is really relevant is not the cost itself, but the impact on the right. economy is a tool which, as such, shall be at the service of rights and not the other way around. the economic model seeks its justification on the basis of liberty, dignity, equality… and these values are obviously the ones that provide a justification for the state itself.22 hence, as i have pointed out somewhere else, the use of “an argument based on an unreasonable cost of the accommodation shall be examined with great care and it shall be even deemed as lacking proper justification when this cost does not entail a real and blatant non-fulfillment of the human rights of others. in other words, there is no room for an argument that takes into account the cost with no regard to the context of rights. its use, as an admissible argument when it comes to rights, requires to be tied to these (in terms of expressing a limitation set on the rights of others). in addition, it shall assess the cost attached to the non-fulfillment of the interest in terms of segregation or lack of integration” (de asis 2013: 124). resources caused by, among other factors, a series of principles that determine the alleged right. actually, natural scarcity would exist in relation to an alleged right of women to get married to men who have never been married. 20 in particular, the 1972 judgment is normally pointed out as the first one in which this clause is included and acknowledged as numerus clausus. the reservation of the possible argument has been in conflict with the existential minimum argument since then (gomes canotilho 1998: 439). 21 recently, in spain, as for rights of the persons with disabilities, the judgment 1834/2012 from the administrative chamber of the castilla león superior court of justice, upheld by the constitutional court by means of the 10/2014 of 27 january judgment can be examined, where the right to an inclusive education is constrained on the basis of the unreasonable nature of the adjustment, on similar grounds as the ones provided by the reservation of the possible. 22 as ferrajoli has recalled, the state “is not a profit-seeking corporation” (ferrajoli 2007: 68). the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 55 reasonableness in the concept of reasonable accommodation the claim for rights, which takes for granted the absence of absolute rights, requires that the rights’ limitation is performed within the ethical framework to which the rights belong, and therefore using reasons and arguments grounded on rights and interests which are awarded the same value. when it comes to boundaries, it is important to preserve sensitivity for accomplishing a dignified human life and for the consideration that the rights’ main purpose shall be, precisely, fighting against barriers and obstacles preventing highly valued interests from being fulfilled. as i have remarked in some other places, the reflection on reasonableness in the context of rights shall be governed by: (i) the respect for freedom of choice (autonomy and physical and moral integrity) and the satisfaction of basic needs; (ii) the need for regarding and, where appropriate, equally empowering every individual in order to determine what can be deemed as correct; (iii) awarding a particular justifying weight to the decisions accepted by the majority of involved parties (de asis 2000:149 ff.). these three referents projected onto the costs of rights domain, require full transparency and a great deal of knowledge about the allocation of resources and, in short, about public spending. the claim for the rights of persons with disabilities individually considers the reasonableness test within the actual human rights context. hence, for instance, when applying the principle of proportionality we must keep in mind that we are not dealing with welfare measures (which is partly true), but instead with instruments aimed at accomplishing a dignified human life, which intend to meet basic needs or demands, and which, accordingly shall prevail over others.23 furthermore, with regards to universal design and reasonable accommodation, it is important to be aware that a limitation set on the first (a justified one) leaves the way open for accommodation, whereas limiting the latter leaves the right lacking a definite fulfillment. 3.2. a comprehensive vision as we have seen, reasonableness in accommodation takes us to three kinds of reflections. on the one hand the one concerning non-discrimination, which requires to assess, when examining whether the adjustment is justified or not, if it entails a violation of the principle of equality (since it differentiates or it does not, in an unjustified manner, thus harming a human right such as accessibility). in this justifying test there is an essential methodological tool at hand, which shall be regarded as the second great reflection on reasonableness in accommodation: the principle of proportionality. in virtue of this principle, the reasonableness test requires facing the adjustment’s adequacy and necessity and, in addition to that, the advantages or sacrifices that produces on rights. and since both of these reflections do not ensure a single answer, reasonableness requires a last reflection on the basis of acceptability. the 23 see section 16 of the above mentioned comment on article 9 by the un committee on the rights of persons with disabilities. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 56 rafael de asís roig adjustment’s justification, or the lack of it, shall be subject to the community’s acceptance or rejection. obviously, these dimensions must act jointly in order to conclude that the requirement for reasonableness has been complied with. in any event, as we have seen, the call for reasonableness is not projected only onto the adjustment but also onto universal design and, generally speaking, onto accessibility. hence, if we take as a reference the idea of accessibility, we can agree that it can be fulfilled through general measures (universal design) and through particular measures (reasonable accommodation). in both cases, these measures must be necessary (justified because they favor full participation in society), possible (matching scientific and technical knowledge along with a proper understanding of human diversity) and reasonable (non-discriminatory, proportional and acceptable).24 therefore, in accordance with the foregoing, it is possible to have a comprehensive vision about reasonableness in the disability domain. this demand makes it necessary to deem a measure as reasonable in the context of disabilities when: a) it is justified because it adequately provides for full participation in society. b) it shall be deemed as possible, taking into account the state of scientific, technical and human diversity knowledge. c) it shall be deemed as a non-discriminatory differentiation or undifferentiation which is not harmful for physical and moral integrity and at the same time does not prevent from meeting basic needs nor avoids participation in society on an equal basis. d) it shall be deemed as proportional and, therefore, entails more advantages than sacrifices within the context of human rights. e) it shall be deemed as acceptable by the community to which it is addressed. 24 certainly, when it comes to adjustments, what is possible falls within a scientific and technical knowledge framework, being human diversity one of the reasons for its existence. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 57 reasonableness in the concept of reasonable accommodation references: aarnio, a. (1991) lo racional como razonable. madrid: centro de estudios constitucionales. alexy, r. (1997) teoría de los derechos fundamentales. madrid: centro de estudios constitucionales. ansuategui roig, f.j. (2014) rivendicando i diritti social. napoli: edizioni scientifiche italiane. ansuátegui, f.j., (1991-1992) "algunas reflexiones sobre la visión integral de los derechos", estado & direito, n. 7-0. atienza, m. (1987) “para una razonable definición de lo razonable”, doxa, n. 4. barak, a. (2007) proportionality. constitutional rights and their limitations. new york: cambridge university press. barranco, m.c. (2011) diversidad de situaciones y universalidad de los derechos. madrid: dykinson. bernal pulido, c. (2007) el principio de proporcionalidad y los derechos fundamentales. madrid: centro de estudios políticos y constitucionales. bobbio, n. (1993) igualdad y libertad. barcelona: paidós. cayo bueno, l. (2012) “la configuración jurídica de los ajustes razonables”, in aa.vv., 2003-2012: 10 años de legislación sobre no discriminación de personas con discapacidad en españa. madrid: cinca. cuenca, p. (2012) los derechos fundamentales de las personas con discapacidad. un análisis a la luz de la convención de la onu. alcalá: universidad de alcalá. de asis, r. (2000) “la igualdad en el discurso de los derechos”, in j. a. lópez garcía and j. alberto del real, los derechos: entre la ética, el poder y el derecho, madrid: dykinson. de asís, r. (2005) el juez y la motivación en el derecho. madrid: dykinson. de asís, r. (2013) sobre discapacidad y derechos. madrid: dykinson. de asís, r., aiello, a.l., bariffi, f., campoy, i., and palacios, a. (2007) sobre la accesibilidad universal en el derecho. madrid: dykinson. feher, f. (1993) "el socialismo de la escasez", revista del centro de estudios constitucionales, n. 15. ferrajoli, l. (2007) principia iuris. teoria del diritto e della democracia, 2. teoria della democracia. bari: laterza. gomes canotilho, j.j. (1998) direito constitucional e teoria das constituiçao, coimbra: almedina. http://www.tribunalconstitucional.es/es/actividades/documents/xv%20trilateral/pon encia.pdf. looked up on march 10th 2014. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 58 rafael de asís roig martinez tapia, r. (2000) la igualdad y razonabilidad en la justicia constitucional española. almería: universidad de almería, servicio de publicaciones. mercader uguina, j.r. (2008) “tutela judicial efectiva, control de razonabilidad de las decisiones judiciales y «canon reforzado» de motivación en la doctrina del tribunal constitucional”, revista del ministerio de trabajo y asuntos sociales, 73. nino, c.s. (2005) fundamentos de derecho constitucional. buenos aires: astrea. palacios, a. (2004) “el derecho a la igualdad de las personas con discapacidad y la obligación de realizar ajustes razonables”, in campoy cervera, i. (coord.), los derechos de las personas con discapacidad: perspectivas sociales, jurídicas y filosóficas. madrid: dykinson. palacios, a. (2008) el modelo social de la discapacidad. madrid: cermi. recaséns siches, l. (1971) experiencia jurídica, naturaleza de la cosa y lógica «razonable». méxico: fondo de cultura económica. rocas trías, e. and ahumada ruiz, m. (2013) “los principios de razonabilidad y proporcionalidad en la jurisprudencia constitucional española” salmon, e. and bregaglio, r. (eds.) (2014) diez conceptos claves para entender la convención sobre los derechos de las personas con discapacidad. lima: idehpucp. schwartz, b. and sharpe, k. (2010) practical wisdom. new york: riverhead books. the age of human rights journal, 6 (june 2016) pp. 42-59 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2929 59 the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 84 extra-taxation and property right in the european union law carlos maría lópez espadafor1 abstract: indirect taxes are the essence -and the main priorityof tax harmonization in the european union. the vast majority of eu tax harmonization directives refer to this type of taxation. at the same time, indirect taxes constitute the field in which the principles of tax justice are less defined, either regarding eu member states, or the institutions of the european union. this is an issue about which no explicit reference has been found within the eu original or primary law; we don’t find it in the treaty of the european union or in the treaty on the functioning of the european union. the materialization of the fundamental rights in the area of community taxation will be of crucial importance for the concretion of these principles, especially in relation to the property right. thus, within the fiscal harmonization of indirect taxation, the extra-fiscal perspective and, particularly within it, the environmental issues, are of especial relevance. we should bear in mind that excise duties represent an essential field within tax harmonization and within them, taxation of energy and energy products is paramount. these products, due to their highly pollutant nature, have an environmental transcendence that needs to be taken into consideration. keywords: extra-taxation, enrironmental taxation, human rights, fundamental rights, property right, european union. contents: i.extra-taxation and european union law; ii.environmental taxation and high public revenues; iii.tax justice and right of ownership; iv. european union tax law and ban of confiscation as regards tax matters; v.non confiscation in tax matters and fundamental right to private property; vi.private property in the eu charter of fundamental rights and the material principles on tax justice; vii.rational solutions; viii.excise duties; ix.realization of the parameters of the current non-taxation purposes; x.the ethical component of environmental tax regulation; x.1.ethics and environmental tax from a globalized perspective; x.2.states, governments, law-makers and taxpayers; xi. degree of realization of the material principles of tax law. i. extra-taxation and european union law the argument of the extra-taxation of hydrocarbons has been used to increase the fiscal pressure over the gasoline until a point where its legitimacy should be discussed, not only from the constitutional point of view, but also from the european union treaties. hydrocarbons represent one of the fields in which multi-taxation affects the most. it is necessary to delimit that problem in this context, by determining its own limits, at both internal and international levels, thus providing an answer to its current perspectives, particularly in the european context. in spite of the fact that almost all the european union member states have similar principles of tax justice, there is not an express specification about them in the primary law of the european union. the institutions of 1 full professor of financial and tax law, university of jaén, spain (cmlopez@ujaen.es). extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 85 the european union have some tax competences given by their member states, specially highlighting fiscal harmonization of certain state taxes. the tax harmonization directives, despite this lack of express specification, cannot forget these principles of tax justice. although some taxes are described by the legislator as environmental taxes, with the purpose of reducing co2 (carbon dioxide) emissions, the observance of their structures reveals that their principal purpose is to obtain public revenues. with the excuse of environmental taxation, there are some taxes with the single objective to obtain high public incomes. the blame for this situation lies with member states and european institutions, because energy taxes are harmonized by directives at european level. so we have to check if this kind of taxation is against tax justice principles. the problem is that in the european union a definition of these principles does not exist. nevertheless, in european union law the property right exists as a fundamental and human right. we have to analyse if this kind of taxes represents (or not) an infringement of the property right as the origin of some tax justice principles. ii. environmental taxation and high public revenues sometimes, on the pretext of “additional taxation”, certain taxes are used only to achieve high public revenues. certain taxes are presented by the tax legislator as environmental taxation, aimed at reducing emissions of co2 (carbon dioxide), although their structure seems to indicate that at the end their main purpose is not this, but to get more public revenues. for example, think about the excise duty on hydrocarbons, with regard to the taxation of petrol and diesel fuels. the consumer is to pay indirectly an amount greater than the value of the product through taxation. therefore, the consumer when buying gasoline, pays out a price that is the sum of the value of the product and the levy, which represents most of the final amount, including the excise duty indirectly charged, and the value added tax. individual states are not the only ones responsible for this situation but also eu institutions are, since the tax on mineral oils has been harmonized by eu directives. however, after all, the union with this type of tax rather than thinking about environmental protection has mainly thought to protect free competition in the european petrol and diesel market, with the aim of ensuring that the final price of this product would not be too different from one member state to another. the eu sets a rate or minimum tax load, which may be increased by the member states. pollution control should be achieved mainly through tax breaks for biofuels, and not so much, as specified above, with exorbitant tax levies on still needed fuels. such high taxation on petrol and diesel will eventually cause a damaging effect on the people living in areas where there are not many opportunities for public carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 86 transportation, compared to the inhabitants of big cities. hence the residents of rural areas are going to pay for this taxation. it has not been proven at all that a higher tax levy corresponds to lower fuel consumption. we are talking about products which cannot be set aside in the current way of life. only the economic crisis, with a decrease in economic, commercial and industrial activities, has succeeded in decreasing the consumption of these products. not even the rise in the oil price can considerably reduce fuel consumption; neither could an increase in taxes could actually reduce it. then we should wonder whether a tax which is so high is contrary to the material principles on tax justice. the problem is that in european union law there is not a definition of the so-called principles involved. however, in this law, there is a consecration of the right to property as a fundamental and human right2. therefore, we should analyze if these cases of high tax levy represent or not a violation of the right to property, a right from which in some states the principles of tax justice are deduced. iii. tax justice and right of ownership the search for tax justice is a pending issue in the process of european integration. however, this lacuna may make it difficult for such integration to be built on sufficiently firm legal and economic bases. therefore, the principles of tax justice in european union law are still a not fully explored subject of investigation. the institutions of the european union hold a series of taxation jurisdictions granted by member states, among them there is particular harmonization of certain state taxes. the constant tension between direct and indirect taxes affects socio-economic policy, so that it is appropriate to identify the constitutional and legislative principles that could in some way limit the role of the latter in comparison to the former, and find their basis in eu law. even though in most eu member states the material principles of tax justice correspond in their essential content, to the original eu law, an explicit statement of those principles does not exit. in spain, the study of tax law has focused on the primacy of the principles contained in paragraph 1 of article 31 of the constitution: the tax justice of material principles. article 131 of the spanish constitution, at the end of paragraph 1, in relation to income and wealth, proclaims “its fairer distribution”. this final declaration sanctions spain as a “social and democratic constitutional state”, in paragraph 1 of article 1 of the constitution. this suggests that the nature of the tax and social justice of our state, often 2 regarding the human rights discipline on a tax law standpoint, see soler roch, m.t. (2011) deber de contribuir y derecho de propiedad en el ámbito de los derechos humanos, lección inaugural, curso académico 2011-2012, universidad de alicante: 5. extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 87 poorly analyzed, instead was the object of the first precepts of the constitution. reading in conjunction articles 1.1, 31.1 and 131.1 of the constitution, it is inferred that in a social and democratic constitutional state redistribution of wealth can be implemented through public revenue and expenditure. for this reason, before exorbitant fiscal pressures on goods and products, for which the price/value of the asset becomes lower than the taxes, there is the need to find a constitutional provision that would prevent such excesses. all this forces us to say that in tax matters we must respect the right to private property, questioning the maximum tax levy on property, also in relation to the acquisition costs of goods and products. it is obvious that in order to consume a good it is necessary to acquire it: the problem arises when the taxation on a good or product obstructs the possibility of acquisition disproportionately and unlawfully. one more clarification, when it comes to property, the mind turns to the traditional patterns of property of real estate; instead, it is necessary to think that property is a concept applicable to any type of product, since, in principle, in order to consume, you must first purchase the property. therefore, we cannot limit ourselves to state legislation, but must take into account the impact on eu law, as most of the indirect taxes are harmonized by the community. the concept of non-confiscation does not explicitly appear in the european community discipline, although it should be a fundamental right sanctioned not only in the constitution, but also by the european community discipline of fundamental rights. the crisis experienced by the european and world economy has highlighted the need for closer economic integration between the member states of the european union. there are two essential tools to achieve a real economic integration: monetary policy and tax policy. in monetary policy matters, greater integration in the euro zone and a major limitation of the public deficit has been reached. in fiscal policy, the rule of unanimity in tax harmonization matters is still applied. thus, only with the unanimity of the representatives of the member state governments is it possible to adopt the directives on tax harmonization. this lack of democratic legitimization in the field of tax harmonization, which does not depend on the will of the parliament elected by european citizens, renders even more real the prediction by the material principles of tax justice as a limit and guarantee in the tax harmonization for eu member state taxpayers, by virtue of the primacy of its law with respect to the law of the member states. pursuing the contemplation of the material principles of tax justice in tax harmonization seems a necessary step for the extension of the powers of the european union in relation to the tax harmonization mentioned. then, it must be emphasized that, within the member states, the development of the material principles of tax justice occurred mainly with regard to direct taxes. by contrast, the powers of eu institutions in the field of tax harmonization essentially concern indirect taxes. thus, the prediction of the material principles of tax justice with carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 88 respect to tax harmonization would result in the implementation of these principles with regard to indirect taxes. there is no express provision for such material principles of tax justice in the original law of the european union, though, as bosello said, with regard to eu member states “the constitutional principles that inspire the tax legislation in individual states are substantially the same”3. however, some of these principles might be inferred, as mentioned, from the consecration of the right to property as a fundamental right in the original law. in a way, it would be a parallel process to that achieved by the member states, which have derived some of these principles from the provision of property rights in their relative national constitutions4. this approach would allow observance of the principles of economic capacity and especially the principle of non-confiscation. iv. european union tax law and ban of confiscation on in tax matters as a first approximation, we could define the principle of non-confiscation as the duty of the tax legislator not to apply taxes that cause the cancellation of the economic capacity of the taxpayer, leading to unreasonable taxation. for this reason, nonconfiscation could be seen as a manifestation of the right to private property in the tax field. article 31 of the constitution, paragraph 1, provides that the tax system cannot result in the confiscation of property. at the same time, the tax system should be set according to the parameters of equality and progressiveness, the “guiding” principles of it. on the other hand, article 33 guarantees the right to private property and shows at the same time its social function. this social function can be observed from many points of view, one of which, without a doubt, is the duty to contribute. the doctrine, though with varied forms, has recognized the link between the ban on confiscation and the right to private property5. 3 bosello, f. (1959) costituzioni e tributi negli stati della comunità economica europea, rivista trimestrale di diritto e procedura civile 2: 1513. 4 an important benchmark about comparative law of tax justice principles could be the german law. in this respect, regarding the german constitutional case law see herrera molina, p.m. (1996) “una decisión audaz del tribunal constitucional alemán: el conjunto de la carga tributaria del contribuyente no puede superar el 50% de sus ingresos. análisis de la sentencia del bverfg de 22 de junio de 1995 y de su relevancia para el ordenamiento español”, impuestos, ii: 1033. 5 palao taboada, c. (1979) la protección constitucional de la propiedad privada como límite al poder tributario, in hacienda y constitución, madrid, instituto de estudios fiscales: 319-320; núñez pérez, g. (1991) la prohibición constitucional de tributos confiscatorios: dos supuestos, impuestos 22: 8; sánchez serano, l. (1996) principios de justicia tributaria, capítulo iv del manual general de derecho financiero, tomo segundo, derecho tributario. parte general. granada, comares: 91-92; naveira de casanova, g. j. (1997) el principio de no confiscatoriedad. estudio en españa y argentina. madrid, mcgraw-hill: 448; cazorla prieto, l. m. (2000) derecho financiero y tributario (parte general), navarra, aranzadi: 112; garcía dorado, f. (2002) prohibición constitucional de confiscatoriedad y deber de tributación, madrid, dykinson: 90; poggioli, m. (2012) indicatori di forza economica e prelievo confiscatorio, padova, cedam: 105. extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 89 both concepts are defined in two different precepts of our constitution. the question should be whether this means that they have different or distant meanings, when we consider tax matters. in our opinion, the answer to this question must be negative, and a link between the two concepts or ideas has to be recognized. from a purely technical legal point of view, in a more rigorous and systematic way, it would not be possible to think that two provisions can say the same thing, because one of the two would be unnecessary and normally the legislator, or in this case the constituent, does nothing useless. thus, one might say that two different rules have to identify two different concepts. the concept of private property is actually a general concept that is applicable in all branches of law, and thus in tax matters. if so, you might think that the general consecration of the right to private property would be sufficient to prevent taxes taking on a confiscatory character. so, what advantage would there be to have an express provision of non-confiscation? would it have a different meaning? the jurisdiction of european union institutions on taxation essentially concerns indirect taxes, although there are certain community provisions relating to direct taxes. the law under the legislation enactment of the eu institutions has to respect the postulates sanctioned by the regulations of the original law of the union. actually, we do not find, in the cited original law, an express manifestation of the essential principles in the field of tax justice. however, nothing prevents the principle of non-confiscation being inferred from some provisions of the original law of the european union, and in particular from the right to private property. basically, as concerns tax matters, it is possible to identify a dual line of protection against violations of these principles, deriving both from state regulations and from community regulations. consequently, in the presence of violations of these principles, alongside the possibility to bring the action before the constitutional court of each state, within the community, the court of justice of the european union would have competence on the matter of tax harmonization or proper union resources. a first analysis could lead us to define the principle of non-confiscation in tax matters as the duty of the tax legislator not to set taxes that lead to a levy which can wipe out the economic possibilities of the taxpayer, and that would result, therefore, in unreasonable taxation. when we speak of a tax that wipes out the economic possibility of the taxpayer we do not intend to refer to a tax which allows the taxpayer to have only the minimum subsistence. as a matter of fact, we believe that in order for the levy to be legitimate, what is left in the hands of the taxpayer after the levy should be as close as possible to the economic result of his or her productive capacity (meant as a capacity to produce revenue) and never less than the amount of the tax collected in respect of the participation in the carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 90 maintenance of public expenditure. in this regard sometimes the doctrine, in our opinion, has been extremely restrictive in identifying the economic resources that should be legitimately left over for the taxpayer as a result of the tax levy. as we will see later, the consecration of the right to private property sanctioned in the charter of fundamental rights of the european union goes in this direction. v. non-confiscation in tax matters and the fundamental right to private property in our opinion, in virtue of what was claimed above, non-confiscation on taxation matters presents itself as a manifestation of the right to private property6 in the tax matter. the constitutions of european states expressly consecrate the fundamental right to private property in the tax law. we believe that the ban on confiscation should be linked to the right to private property. yet, we must wonder whether the right to private property, which is a general right valid for the different branches of the legal system, may also be relevant in the field of taxation. if so, it might be thought that the general consecration of the right to private property would be sufficient to prevent taxes from producing effects of confiscation. non-confiscation can be understood as a limitation to taxation which presupposes respect for private property in the tax law. private property plays a social function, and tax law must implement a redistributive function of the wealth of a social and democratic state of law. therefore, although the tax levy necessarily implies a limitation of private property, that levy, in order to be legitimate, cannot completely empty of content the right to property. the levy may limit private property, but it should not completely destroy its contents. in other words, the tax levy may limit the property only up to a certain limit. what is this limit? the one determined by a threshold of maximum taxation which, if exceeded, would affect the very nature of property debasing the private-law content. to put it differently, state constitutions give property an essentially private-law qualification. this is to say that the property and its use must be valid to a greater extent for the taxpayer than for the state. if not, the provisions of the right to private property in the constitutions would have no sense. private property of the taxpayer cannot have too public a projection; the goods and rights of the taxpayer should never be at the service of the tax authorities to a greater extent than at the service of the taxpayer. this rule would be violated by a tax system that imposes a confiscatory levy type. 6 the right to property is born in the civil field, it is consecrated in the constitutional field and it is used in the taxation field. on the relations between civil law and tax law, see fregni, m.c. (1998) obbligazione tributaria e codice civile, torino, giappichelli: 6-9. extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 91 we could just say that if the state7 took over 50 percent of the income, we would be in the presence of confiscatory taxation, as in the pockets of the taxpayers there would remain a quantum inferior to the revenue of the state. the same thing would occur, in consumption taxes, if in purchasing a good, the taxpayer ended up sustaining tax of more than half of the final price of the goods (tax included); for example, if the product cost 100 € and more than 50 of these corresponded to value added tax and excise duties, we would be dealing with a confiscatory situation, in principle. vi. private property in the charter of fundamental rights of the european union and the material principles on tax justice the prohibition on confiscation in the european tax system could be derived from the protection of private property in the european union. within union law, there is a consecration of the right to private property although not even in this field is protection of the principle of non-confiscation in the tax system expressed. consecration of the right to private property as part of european union law, can be identified from jurisprudence of the eu court of justice, which has claimed that the general principles and fundamental rights in the constitutions of the member states are an integral part (also) of european union law. in addition, there is the consecration of the right to private property contained in the european charter of fundamental rights. in this charter, the right to property is covered aseptically, without being classified as private. yet, the context, in which it appears, leaves no doubt that the meaning of the eu provision refers to private property as the essential core of the right to property. the draft treaty by which the intention was expressed to subscribe to a constitution for europe, later replaced by the lisbon treaty (from which the content of this charted has been deleted), sanctioned in paragraph 1, article ii-17, stated that: everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. the use of property may be regulated by law in so far as it is necessary for the general interest. in any case, it is possible to find a similar text in paragraph 1 of article 17 of the charter of fundamental rights of the european union, both in the 2000/c 364/01 version, and in the 2007/ 303/01 version, solemnly proclaimed on 12th december 2007, the day before the signing of the treaty of lisbon. thus, the content of the mentioned charter has attempted to incorporate the text of the draft of european constitution, which never came to light. however, although this has not been well understood, the treaty of lisbon, as we shall see below, provided an express reference to the provisions of the mentioned charter. on the other hand, in the fifth paragraph of the preamble of the charter it is stated that: this charter reaffirms, with due regard for the powers and tasks of the community and the union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the member states, the treaty on the european union, the community treaties, the european convention for the protection 7 and, of course, other public bodies. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 92 of human rights and fundamental freedoms, the social charters adopted by the community and by the council of europe and the case-law of the court of justice of the european communities and of the european court of human rights. together with this, and well beyond community legislation, it must be noted that additional protocol 1 of the european convention on human rights8 establishes in the first paragraph of article 19, that “every natural or legal person is entitled to the peaceful enjoyment of his possessions” stating later that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. the second paragraph of the same article provides that “the preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”. this article is entitled with the inscription “protection of property”. the fact that, this article, has to do at the same time with private property and taxes, does not mean that taxes are able to render property meaningless, as this would be, obviously, against the recognition of the protection of private property sanctioned in the very convention.10 at the same time, it must be noted that the treaty on the european union already established in the first paragraph of article 6, that “the union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states”. it is then stated in the second paragraph of the same article that “the union shall respect fundamental rights, as guaranteed by the european convention for the protection of human rights and fundamental freedoms signed in rome on 4 november 1950 and as they result from the constitutional traditions common to the member states, as general principles of community law”. paragraph 8 of article 1 of the treaty of lisbon (signed in lisbon on december 13 of 2007), which amended the treaty on the european union along with the founding treaty of the european community, rewrote article 6 of the treaty on the european union. following this change, in the first line of paragraph 1 of article 6 of the treaty on the european union it was stated that “the union recognizes the rights, freedoms and principles enshrined in the charter of fundamental rights of the european union on 7 december 2000, as adapted on 12 december 2007 in strasbourg, which has the same legal value as the treaties”. in paragraph 2 of the new version of article 6 it is also stated that “the union shall accede to the european convention for the protection of human rights and fundamental freedoms. such accession shall not affect the union’s competences as defined in the treaties”. finally, paragraph 3 of the amended article 6 of 8 a treaty provided for also in the treaty of lisbon, as we will see. 9 in this regard, see, inter alia, sermet, l. (1999) “the european convention on human rights and property rights”, human rights files, nº 11 rev.: 25; ergec, r. (2011) “taxation and property rights under the european convention on human rights”, intertax, vol. 39, nº 1: 2; quintas seara, a. (2014) “the protectionof taxyers’ property rights in light of the recent ecthr jurisprudence: anything new on the horizon, or just more of the same?”, intertax, vol. 42, nº 4: 218. 10 among the explanations on the charter of fundamental rights (2007 / c 303 / 02), in the penultimate paragraph of the explanation on the “right to property” it is stated that this law has the same extension and meaning as the one guaranteed by the echr. extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 93 the treaty states that “fundamental rights, as guaranteed by the european convention for the protection of human rights and fundamental freedoms and as they result from the constitutional traditions common to the member states, shall constitute general principles of the union’s law”. focusing, specifically, on the issue of fundamental rights with regard to the right to private property, it is useful to start from the judgment of the court of justice of the european union of 13 december 1979 (case 44/79), and the more recent judgment of the same court of 10 july 2003 (joined cases c-20/00 and c-64/00). in these judgments it was declared that “fundamental rights form an integral part of the general principles of law which the court ensures compliance and that, for that purpose, the court draws inspiration from the constitutional traditions common to the member states and from the guidelines supplied by international treaties for the protection of human rights on which the member states have signed or cooperated in,” adding further that “echr has, in this regard, special significance”. it is necessary to highlight, along with the other fundamental rights thus protected, the importance of the right to property, and also, according to the quoted judgments, that in the exercise of fundamental rights some restrictions would be allowed only if “they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.” although in european union law the principle of non-confiscation in tax law is not expressly sanctioned, the right to private property is definitely recognized. prohibition for community rules to imply confiscatory situations in tax law therefore arises from the will to enforce the respect of the right to private property, which is also enacted, as we have stated, by the community legal discipline. moreover, contemplation of a fundamental right like this must be considered part of the original law of the european union, to which its derived legislation must necessarily be subordinated. it follows that the tax laws enacted by the community institutions, whether they are intended to regulate the european union’s own resources or to regulate eu tax harmonization, will never produce a content that produces confiscation effects in tax matters; if that were the case, it would violate a fundamental right of the european union. as long as in the original law of the european union, there is not an express provision of the material principles of tax justice that could protect european taxpayers and curb the excesses of tax harmonization, protection of taxpayers will not rest on solid foundations. to ensure the protection of the taxpayer and to build solid fiscal harmonization it is necessary to establish the principles of the original law of the union. to do this a reform of the eu treaties is needed. currently, within the original law of the european union the main treaties are the treaty on european union and the treaty on the functioning of the european union. in view of its content, it could be said that the latter treaty is the most likely to provide the express statement of the material principles of tax justice in european union law. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 94 vii. rational solutions under the legitimacy of some goal framed in the constitution, although unrelated to the need for tax revenues, occasionally legislature reaches levels of indirect taxation apparently too high. thus, it is necessary to determine what quantitative limit can be derived, even in such cases, from the material principles of tax justice. defining limits in this regard may help to curb indirect versus direct taxation, making our tax system more progressive and thus fairer, in light of the constitutional principles of tax justice. article 31 of the spanish constitution, a predicate of the tax system, expresses the principle of non-confiscation, which would play its role in relation to this system as a whole, beyond all taxation. however, at the same time we have seen the bond that exists between the ideas of non-confiscation in tax matter and of private property. their interpretation will always have to be realized from the perspective of justice, since this, beginning from the title of “just” which appears explicitly in the aforementioned precept of the constitution, becomes a value in itself on tax matters, solving possible doubts in the articulation of the other principles. however, no matter how uncertain in itself the idea of justice may be, there are some elements which obviously could not be disregarded as a whole, such as the ideas of logic and rationality. the “just” will be increasingly likely to appear as illogical or irrational. as we said, in relation to the tax system, we talk about “system” and “just” in our constitution. those requirements, contained in the first paragraph of art. 31 of the quoted text of the constitution, can be satisfied only by the rationality of the organization of the different tax laws. in the analysis of the idea of rationality in relation to the tax system it is necessary to start from the considerations by sainz de bujanda, which necessarily must be considered here. this scholar distinguishes between an “internal rationality” and an “external rationality.” he indicates that “a tax system is rational only if, giving internal rationality to each individual tax; it aims to associate it with external rationality, that is, its ability to combine harmoniously with the remaining charging procedures that integrate together.” this author stresses that “the external rationality of a tax is its capacity to integrate into the system, without breaking the rationality of the latter, which happens if any of the taxes which compose it, added to the others, destroys the basic objectives of the system, and so violates the general principles of tax justice.” he adds that “the technique to achieve this external rationality is that the legislator, when he determines any tax or substantially changes an existing one, verifies with rigor if it may be integrated in the whole without problems.” all this leads to the affirmation that “rationality can-not in any way be separated from the value of “justice” nor from other requirements associated with this, such as security and certainty.” in this way, this author notes that “a tax system, in fact, is rational only if it is right and it can be right only if it conforms to extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 95 the basic and main regulations of the positive order, contained in the constitution, and to the general principles of law, principles of natural law tradition”11. these words contain considerations that have necessarily to be taken into account. compared to the two perspectives of rationality mentioned, internal and external, the latter is the one most directly connected with the idea of the system, even though neither of them can be recognized of course in the realization of tax system. if we really want the tax system to be precisely this, it cannot only consist of an accumulation of taxes, but also of harmonious interweaving of them. to the extent that it is not a mere sum of taxes, but also a harmonious set of these, rationality will be much greater and, in its working, as we have seen, the justice which must prevail in the tax system will be even greater. analysis of whether a tax system as a whole is confiscatory or damages the overall ability of the taxpayer can be difficult. it must start from compliance with the constitutional principles of tax justice of each tax in particular. later, it has to move on to analysis of conformity with the constitution regarding the confluences of taxes on the same manifestation of economic capacity and, thus, of cases of multiple taxation on the same taxpayer. from the analysis of a single tax we would move on to the taxes added to it. this allows us a more precise and rigorous review and observation of the justice on tax system justice as a whole. as a result of this analysis specific cases of unconstitutionality could be highlighted or we could understand that there are none. however, what would be proven would be possible situations that, even keeping within the precise limits of the constitution, would come close to the limit of the rationality, the systematic nature, of the good technique and of the order of the tax system as a whole. therefore, we consider that a useful technique for the analysis of the rationality and constitutionality of the tax system is to begin from the rationality and constitutionality of each taxation and subsequently to move on to investigation of the implications of the technical appropriateness and constitutionality of cases of multiple taxation, as a confluence of certain taxes, thus contributing to the understanding and consideration of a more rational tax system as a whole. it may happen that each aspect of the tax system individually taken, apparently responds to the principle of economic capacity. however, against unreasonable accumulation of taxes, the tax system as a whole could levy on the taxpayer a higher contribution to public expenditure than the one they would pay on the basis of their global economic capacity, reaching confiscatory limits. 11 sainz de bujanda, f. (1987) la contribución territorial urbana. trayectoria histórica y problemas actuales. valencia, consejo general de cámaras de la propiedad urbana de la comunidad valenciana: 515. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 96 on the other hand, moschetti explains that elements of rationality are coherence between the objectives that the legislator has set and the means used to achieve these aims, consistency between individual provisions and the system in which the rules are set, proportionality between the means and the purposes, and proportionality between loss of a legal value and satisfaction of other legal values12. thus, when the legislator pursues an apparent extrafiscal end, very often it leads to an illogical situation, when the means used do not help to reach that objective, as we have already had occasion to point out. so ideas of rationality and justice should preside over interpretation of the ideas of non-confiscation and private property in tax law. in this way, the application of these ideas, which do not prove rational, are unlikely to be considered right. it is very difficult to determine whether the tax system as a whole is or is not confiscatory. in relation to what was said above, all taxes (not only direct ones) above 50% of the total income of the taxpayer would begin in principle to clash with the patterns that today social consciousness would recognize as rational. however, as we said, applying this limit of 50% to the tax system as a whole can be very difficult in relation to the variety of situations that may be occur in real life, and especially compared to combined direct and indirect taxation. a taxpayer may pay tax that is more than 50% of his or her income and in his on her life, not perform actions of consumption that submit him or her to sustain for these a greater tax burden than the value of what he or she buy for consumption. moreover, we could find other taxpayers whose overall contribution for all direct and indirect taxes does not exceed 50% of their income and for whom it is usual to perform actions of consumption where the tax burden incurred for these is higher than the value of what they buy for consumption. hence, in the search for demarcation of the principle of non-confiscation, seeking that rationality we talked about and implementing a fair tax system, we have to start through the analysis of every tax and the set of taxes on the same wealth. then, regarding neither this rationality; nor the tax system as a whole nor any tax considered individually or situations of accumulation of taxes on the same manifestation of economic capacity will prove to be confiscatory or to damage private property rights in tax matters. consequently, the resolution of situations of conflict regarding non-confiscation in tax matters, complying with the idea of private property in the most rational possible form, should start by examining each tax, determining whether it is confiscatory or not, and then, if not individually found to be confiscatory, we should evaluate the accumulation of tax on a single manifestation of wealth. later, once its confiscatory nature was determined, its unconstitutionality would be clear, although the tax system as 12 moschetti, f. (2003) la razionalità del prelievo ed il concorso alle spese pubbliche, le ragioni del diritto tributario in europa (giornate di studi per furio bosello), università di bologna, www.berliri.giuri.unibo.it.: 4. extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 97 a whole did not reach the limit described above. and, before that, if the tax system as a whole, with a large majority of taxpayers, exceeded the aforementioned limit, the system would largely suffer from being confiscable and thus, unconstitutional, although its taxes or partial accumulations did not give this appearance examining them individually. specifying all the stated ideas and the limits of what the tax system as a whole can expect, the tax on some consumptions may already be confiscatory. therefore, in relation to the consumption of each type of good, in particular, we must proceed by determining whether each tax individually considered can be confiscatory and then evaluate the accumulation of taxes, that is, the circumstances of double or multiple taxation on each consumption and in particular whether they can be confiscatory. to this end, neither each tax individually considered nor the set of taxes on consumption of any type of goods can be a greater tax burden than the value of what enters the assets of the taxpayer, which is what can be consumed. a violation of this limit implies rupture of the idea of private property. in order to consume it more than twice what enters would outflow. public finance would take away more than what we have acquired is worth, and property would become more public than private. this would be something irrational and, as such, clearly unfair. according to what has been said, we mean that there should be a limit on nonconfiscatory taxation on consumption, and thus respect for the right of private property in this area of taxation, examining it not only in reference to consumption in general in its totality, but also in relation to the consumption of each type of good whose taxation in itself could be identified as confiscatory. excise duties were born with an intended extra fiscal purpose, looking for a higher tax burden for certain consumptions which the governments were trying to limit, thus making up for their high social cost or environmental impact. what happens is that this tax burden, higher because of certain specific consumption through excise duties, should be added to the tax burden by consumption itself, as any product or service in general, through value-added tax. what really happens is that in the latter tax you must pay not only for the price of the consumed product itself, but also for the tax burden which has represented the corresponding excise duty, with the exception of the excise duty on certain means of transport. viii. excise duties in the perspective of the eu legal system, the debate concerning the current issues of the excise duties is normally focused on two points. on the one hand, the question is if these indirect taxes are compatible or not with their non-tax rationale of the protection of the environment. on the other, we find the consideration that the lack of a tighter fiscal harmonization of these taxes in the eu could imply an issue for the free competition in the member states, considering that some differences on the taxation of the energy or of the energetic products between the single states cold distort the competition, pushing the companies that have to consume a lot of energy to establish themselves in other countries, where the taxation on the energy is lower. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 98 in other cases, however, the creation of new indirect taxes on specific consumptions by the european countries, out of the category of the harmonized excise duties, rises the discussion over this new indirect taxes, concerning their compatibility with the valueadded tax, regulated also by the article 401 of the directive 2006/112/ce of the council, of the 28th november 2006, related to the common system of the valueadded tax. this directive replaced the former sixth vat directive; specifically, the article 401 of the directive 2006/112/ce replaced the well-known article 33 of the former sixth vat directive in a similar way. the eu commission through different proposal for directives, tried to harmonize the indirect taxes on the circulation of the vehicles in the union, with the purpose of adapting further these indirect taxes to the protection of the environment, taking into consideration the co2 emissions of the vehicles. pursuing the same perspective, the commission made as well an effort to abolish the registration taxes, but even after a transitionary period, still hasn´t reached its goal. at the same time, the eu commission also tried to raise the minimum harmonized tax rates of the fuels on the tax on hydrocarbons in the member states, but also this go as has not been achieved, yet. facing some indirect taxes like the excise duties where the tax rate is remarkably high, the lack of a consolidated european doctrine on the subjects of the principles of tax justice and, more specifically, of tax harmonization is even more noticeable. excise duties were born with an intended extra fiscal purpose, looking for a higher tax burden for certain consumptions which the governments were trying to limit, thus making up for their high social cost or environmental impact. what happens is that this tax burden, higher because of certain specific consumption through excise duties, should be added to the tax burden by consumption itself, as any product or service in general, through value-added tax. what really happens is that in the latter tax you must pay not only for the price of the consumed product itself, but also for the tax burden which has represented the corresponding excise duty, with the exception of the excise duty on certain means of transport. we would be dealing with a problem in relation with excise duties on fabrication and the excise duty on coal. ix. realization of the parameters of the current non-taxation purposes it may be difficult to find an indirect tax that has a purely non-taxation purpose, i.e. a tax through which the tax legislator tries to limit, or even remove, the activities harmful for the environment, the health or any other value constitutionally guaranteed. indeed, the indirect taxes tailored as taxes that have a purely non-taxation purpose, normally, or even primarily, have a clear tax collection function. among these, many of them apply to products connected to the old tax monopolies existing before the accession extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 99 of a member state to the european communities. in particular, these are products that generate plentiful tax revenues which the tax legislator does not want to lose. in relation to these taxes, therefore, non-taxation models pertaining to the indirect taxes that purely has non-taxation purpose are not in line with the political / social purposes that such taxes should put in place, due to the great role of the taxation and of its collecting tax function mentioned above. in addition, the european union, when it comes to harmonize the indirect taxes to which the referred products are subjected to, mainly try to avoid problems of tax free competition between member states instead of finding a really nontaxation purpose. these can only lead to a non-taxation policy without coherency in its development which does not cease to be a mere excuse to keep an excessive taxation. the principles of tax justice should apply also to a tax that has a non-fiscal purpose though this does not always happened. moreover, the fact that these taxes are usually indirect taxes and that –in these cases– the principles of tax justice do not apply adequately (and even less in the european law), eliminate useful parameters that could be used for the implementation of these taxes. also for these reasons, the implementation of a system of taxes that have a purely non-fiscal purpose may be difficult to set up. the non-tax purposes do not have to respect only the constitutional discipline, but also the european one. in most countries, when the tax system becomes confiscatory has not been specified. the few attempts to specify when the prohibition of confiscation is violated have focused primarily on direct taxes, which are those that can be more adjusted to progressivity. the greater weight of direct taxes –mainly of progressive direct taxes– than the indirect ones –essentially proportional– is what can help ensure the tax system as a whole to act progressively. this requires moving towards a specification of the principle of non-confiscatory in relation to indirect taxation, as a limit to this and, thus, as an impulse to greater progressivity of the tax system. in some way it could be said that the legal certainty of the european union taxpayer does not conform to the schemes of modern constitutional states. the tributary systems of the different states necessarily are shaped from the basis of the principles contained in their constitutions, essentially their material principles of tax justice. these should be dealt with both in their specific configuration, where appropriate in the corresponding constitutional text, and in the deduction of them made by constitutional jurisprudence, sometimes starting from the constitutional recognition of fundamental rights. if european union law aspires to further development and legitimacy, it should necessarily start from the articulation of principles of tax justice in the discipline of the union. in the absence of a european constitution, the deduction of such principles is only possible from the fundamental rights included in the law of the union. moreover, even the failed draft european constitution did not expressly address this need. later, in the norms derived from treaty of lisbon neither the treaty of the european union nor the treaty on the functioning of the european union addressed expressly this need. only by laying solid foundations in this respect, a harmonized european tax system will be legitimately achieved to be developed on such foundations. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 100 the fiscal harmonization in the european union is principally centered in the indirect taxation. at the same time, the principles of tax justice are found less developed -in the doctrine and in the constitutional jurisprudence of the stateson the themes of the indirect taxes, also considering what happens with the subject of the direct taxes. to this we have to add that neither in the treaty on the european union neither in the treaty on the functioning of the european union, we find an express consecration of these principles. to all of this we need to think also to the equilibrium that has to exist, for some of the indirect taxes that are subject to fiscal harmonization, to respect both the principles of tax justice and the non-tax purposes of the environmental protection that the institutions are trying to pursue. against this background, there are not some clear parameters that could be used as limits in the activities of the european union in this area and the solution could be found in the interpretation of the discipline of the fundamental rights from the taxation perspective. facing some indirect taxes like the excise duties where the tax rate is so high, is even more evident the lack of a consolidate doctrine in the european union on the subjects of the principles of tax justice. x. the ethical component of environmental tax regulation x.1. ethics and environmental tax law from a globalized perspective discussing ethics in terms of environmental tax law brings about a much broader thematic scope, such as the connection between ethics and rights, moral norms and legal norms, which already is a difficult topic to deal with. we would obviously be looking for social ethics (or a social morality) beyond personal ethics (or a personal morality), but it is not easy to find social ethics of wide dissemination. there could be as many social ethics as different societies or (as many) as social groups within a society. all this situation becomes more complicated when we look at the international society, since apart from it being difficult to find shared ethical aspects in the various societies within the various member states of the international community, it is also hard to find unequivocal ethical aspects at the (lower) level of geographic areas which group the various member states. it sometimes seems almost impossible to find common ground in the combination of ethics and rights when we add the problems of separating ethics and religion and the fact that there are far more widespread religions in the western world and other religions in the eastern or south-eastern world. whenever some religion does not value the right to life enough, without which the rest of the rights could lose their meaning, it seems hard to think of finding a basic international morality. thus, it would obviously be more difficult to find an international law morality and far more difficult to find an international environmental law morality. the relationship between the person and the environment is something that can, to a large extent, arise from individual sensitivity, which goes much further than the morals of the international community’s different geographical areas. as a result, a extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 101 specific social group within a particular geographical area can develop environmental sensitivities. furthermore, the different economic options or economic ideologies and, ultimately, the great options or alternatives to socio-economic policy can indubitably influence the different options for environmental policy. although globalization is often seen as an economic issue, it could also be seen differently. thus, it could be considered to be not only economic but also cultural or social. an example for this could be the obviously positive effects of using rightly understood globalization to improve women’s rights in some geographical areas at international level. often, some of the very influential states manage to impose, at a global level, globalized behavioral economics, yet they fail to take into account the importance of environmental sensitivities. obviously, environmental protection involves significant costs and an apparent income loss, in appropriate legal and economic terms. but this financial cost is merely apparent and short-term, since climate change impacts can be unpredictable or at least known to be negative, even negative from an economic perspective. evidently, one of the best future investments will be an environmental investment. x.2. states, governments, law-makers and taxpayers the only way to find a meeting place legitimately shared by all within the international community could eventually lead us towards the field of fundamental rights or, at least, as part of these, of those we may rightly call human rights. the tax-paying citizen cannot renounce their fundamental rights. the state has to respect their fundamental rights. constitutional tradition of fundamental rights fused with the legal corpus of the european union. the law-maker can only charge the full weight of environmental tax treatment on the tax-payer to the extent that it respects their fundamental rights. within these rights we find the right to property. it is the government’s duty to find ways to protect the environment through environmental tax regulation which do not damage the fundamental rights of the taxpayer. furthermore, excessive taxes normally prove to be ineffective in terms of environmental protection. this is why raising our voices against the current environmental tax regulation should not be considered unethical or immoral, especially since fiscal excesses may involve a violation of the tax-payer fundamental rights. besides, this in turn frequently involves an infringement of the material principles of tax justice. what may well be carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 102 unethical or immoral is the attempt to camouflage behind alleged environmental goals what only intends to generate tax revenue. in order to do this, certain services and goods, which the tax-payer finds almost impossible to do without, are heavily taxed, leaving them with no real alternatives. the environmental policies of governments should move beyond environmental tax regulation, or at least should not have the latter as the main actor in the process, since this has not proved effective in fighting climate change. the powers that be cannot charge tax-payers with an imaginary ethical component based on false environmental extra-taxation. what has been unethical is law-makers’ attitude, which under cover of an alleged environmental aim have been simply trying to obtain easy revenue. the best environmental tax is the one which does not yield any revenue, because this would mean that no polluting taxable event or activity has taken place. if the revenue obtained from taxing a given behavior or activity detrimental to the environment is small, we can consider it a success because it would involve that the activity in question, which would have damaged the environment, has been rare. however, this is not the idea guiding the law maker when they qualify as extra-fiscal taxes the purpose of which is not really to protect the environment but to collect revenue. consequently, governments should explore ways to protect the environment and to fight climate change which go way beyond tax-collection, reducing the presence and importance of current environmental tax-regulation, which has proved to be, so far, useless. is it ethical to charge the citizens with taxes of an apparently environmental nature, when they have no other option but to employ fossil fuel vehicles? let us think, for instance, in those citizens living in rural areas, away in the mountains, far from major urban centers. would it be ethical to treat them in the same way than those inhabiting big cities? from a purely technical fiscal perspective, the treatment in both cases should be the same, but the former would be greatly harmed since we would be dealing with an indirect taxation on a specific consumption that they cannot escape or avoid. couldn’t we consider positive, from an environmental perspective, to avoid measures damaging those inhabiting rural areas which should not be abandoned? not only from a fiscal perspective but from a moral or ethical one, both in an individual and a collective sense, it is necessary to deeply revise the standard parameters employed in environmental tax regulation, or in that tax regulation which is only apparently environmental. xi. degree of realization of the material principles of tax law at times, a greater level of realization within a constitution of a specific principle does not necessarily imply a greater respect by the legislator. this is precisely what happens with regard to the principle of non-confiscatory taxes on revenue. if we had to focus on one of the constitutions where the taxation principles are described in a more extra-taxation and property right in the european union law the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 103 detailed way, we could choose the constitution of venezuela 13; however, it is well known this is one of the states with fewer tax law guarantees on account of its problematic political system. young or recent constitutions have better chances of using other earlier ones from other states as benchmarks. the main problem lies in the fact that the maturity of a political-constitutional system is more relevant to the effectiveness of a specific principle of tax law than the greater or lesser specificity expressed in the constitution. thus, in this sense, we should necessarily focus on the example provided by the german political system. the constitution of germany does not specifically gather in its document the principle of non-confiscatory taxation in tax matters, but the constitutional court of germany has inferred from the right to private property –enshrined by the constitutionthe prohibition to confiscate by the tax system, even providing precise percentages as a boundary to the legislator, although this has been essentially done in terms of indirect taxes14 . we can use the example provided by germany to stress that the explicit degree of realization of a principle in the constitution is not as important as the specific interpretation of the latter by constitutional jurisprudence. we could also claim that constitutional texts seem to brag about what they lack, as in the spanish aphorism a constitutional document may not specifically emphasize the principle of non-confiscatory taxation but be found within a system where the jurisprudence of its constitutional court fully explores the possibilities of the constitution. this, as previously stated, is what takes place in the system of germany. on the contrary, in spain15 we find a very detailed declaration of the principles of taxation in its constitution (art. 31.1), as compared to the majority of the constitutions of neighboring states. however, the constitutional court of spain, when given the chance, has not made the most of this opportunity to specify, in a precise manner, which percentages of the taxes could be considered confiscatory. it is true, though, that the legitimacy of a tax system is shown on the level of public services, but taxpayers have certain rights regarding this –and regarding their condition as citizens and as governed citizenswhich the legislator cannot empty of significance. let us consider, especially, the right to property, as a constitutionalized, fundamental right and even as a right enshrined in international documents. at the same time, the constitution of spain recognizes the principle of progressivity as an inspiration for the spanish tax system. the advancement of 13 bear in mind article 317 of the constitution. 14 see herrera molina, p.m. (1996) “una decisión audaz del tribunal constitucional alemán…”, cit.: 1033 et ff. 15 with respect to the spanish legal reality, see martínez muñoz, y., gil garcía, e., martín jiménez, j., alonso murillo, f., (2018) national report of spain, observatory for the protection of taxpayers’ rights, ibfd: 1. carlos maría lópez espadafor the age of human rights journal, 12 (june 2019) pp. 84-104 issn: 2340-9592 doi: 10.17561/tahrj.n12.5 104 progressive indirect taxes as opposed to proportional indirect taxes is what could bestow greater progressivity on a tax system. obviously, granted that, within indirect taxes, progressivity is well structured. progressivity within indirect taxes, even though it may exist, is minimal compared to that within direct taxes. furthermore, the doctrinal development of the principles of taxation has been a lot greater in comparison with direct taxes than with indirect taxes. the main core of indirect taxes is harmonized according to eu directives, which set a harmonized minimum level of taxation in every member state. therefore, tax harmonization represents a clear reinforcement of indirect taxes --and an excessive increase of the harmonized minimum levels of taxation could clearly restrain the progressivity of the tax system, strengthening indirect taxes. thus, by defining the principle of non-confiscatory taxation in revenue, regarding indirect taxes, the principle would not only materialize, but it would also ensure the effectiveness of the principle of progressive taxation as it determines a limit on indirect taxes, in such a way it will never be able to be illegitimately excessive as opposed to direct taxes. according to this, the european union is responsible for the failure of the principle of progressive taxation in fiscal issues, a principle attached to the constitutions of the member states. the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 1 escaping the ivory tower: legal research on human rights from a critical perspective1 dolores morondo taramundi2 abstract: this article aims to address some of the criticisms that have been made of human rights research, especially of human rights research conducted by legal scholars. it argues that a conscious and critical approach to the limitations of the 'ivory tower' of legal scholarship on rights is becoming increasingly necessary in a research context marked by the convergence of multiple disciplines, the ever-growing contestation of human rights, and the complexity of the international regime for the protection of human rights. this article outlines three strategies that could be useful for legal scholars to escape from the ivory tower and make a significant contribution to multidisciplinary human rights studies. keywords: legal method, legal research, interdisciplinarity, intersectoriality, activism, critical theory, human rights theory contents: i.the 'ivory tower': criticism of the limits of legal scholarship on human rights; i.1.criticism of the lack of methodological rigour in a technical sense; i.2.criticism of the lack of methodological rigour in a subjective sense; i.3.separating the wheat from the chaff in the criticism of (the methodology used by) human rights legal research; ii.the new work context for human rights legal scholarship ; ii.1.the contestation of human rights; ii.2.the complexity of human rights law; iii.the escape routes from the ivory tower: some cues; iii.1.disclosure; iii.2.critique; iii.3.cowork/network; iv.conclusions i. the 'ivory tower': criticism of the limits of legal scholarship on human rights a wave of concern about the existing methodological problems in human rights research began in europe about a decade ago (coomans et al., 2009 y 2010; mcconnell and smith, 2018). the methodological issue is not a new problem in human rights research. in fact, it could be said that it is a recurring problem rather than a new one, even though this has not been explicitly stated (taekema and van klink, 2011, p. 1). this is also true of other areas of legal research (or, more precisely, those originating from that field3). in general, the debate on methodology in the legal field is closely linked to the debate on the very nature of legal research and to the ultimate question as to whether it 1 the research leading to this publication has received funding through the project “la desigualdad compleja en las sociedades plurales. indicadores para las políticas públicas” (der2016-77711-p) of the national i+d+i plan of the spanish ministry of economy. 2 human rights institute, university of deusto, spain (dolores.morondo@deusto.es). 3 in fact, as in other areas of legal scholarship, the discussion on human rights research methodology in legal academia does not revolve around the label of ‘method’ or ‘methodology’, but around the more general question of whether it is possible to obtain legal knowledge of a given topic, usually by discussing its normative meaning, definition, sources, etc. in this sense, the lively debate held in the journal doxa (doxa.ua.es) in the 1980s and 1990s, and the discussion about luigi ferrajoli's theses on fundamental rights (ferrajoli 2001) are examples of the discussion on human rights methodology. dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 2 can be descriptive, or whether it is necessarily normative in nature, as are the materials it investigates (smits, 2009, p.45). from the mid-1990s onwards, human rights research has been a multidisciplinary field. it had previously been the exclusive remit of public international law, and therefore there had been no need to raise methodological issues or even consider the epistemological position to be adopted. the historical circumstances that had accompanied the birth of the universal declaration of human rights, the precarious balance of the political consensus,4 and the period of intense production of international treaties that began in the 1960s had led legal scholars to deal with the mechanisms for guaranteeing rights, ignoring theoretical and philosophical issues, as advocated by bobbio in 1964 (bobbio 1990, p. 16). however, the increasingly multidisciplinary nature of this area of study has reopened a series of questions, starting with the methodological one. important methodological shortcomings have been identified, particularly in connection with legal research on human rights, which is frequently considered to inhabit an ivory tower. the remainder of this section reviews the criticisms of human rights legal scholarship. in order to plan the escape from the ivory tower, firstly a discussion is provided of the new characteristics of the research context in which this methodological challenge is to be faced (section 2). secondly, an escape route from the ivory tower is outlined that can serve as a basis for a much-needed methodological reflection (section 3). i.1. criticism of the lack of methodological rigour in a technical sense compared to research related to other social phenomena or produced by other scientific communities, the research conducted by human rights scholars has been often described as 'sloppy', which has the double meaning of careless and bungling, but also sentimental and emotional. in other words, human rights research, especially that carried out by legal scholars, has been accused of lacking methodological rigour from the technical and the subjective points of view. from a technical point of view, it has been found that there has frequently been no reference to the method used in human rights research, and much less a discussion about the adequacy or the impact of a particular method in relation to other possible methods of analysis, or its appropriateness to the research question (coomans et al., 2010, p. 181). in the case of legal research, in particular, the method or methods that are not explicitly referred to are not even noticeable from the perspective of other social sciences. the legal method in general (not only in human rights research) is invisible to those outside legal academia, thus giving rise to the idea that legal research lacks a method. methodology is also a non-reflective area or form of knowledge within legal research, 4 this is summed up in a well-known sentence by jacques maritain: ‘we agree on these rights, providing we are not asked why’ (maritain, 1983, p. 94). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 3 both in academic research and in legal practice, so legal scholars rarely know how to answer questions about their methods or their methodological training. in a short questionnaire conducted by eva brems about this issue, half of the people interviewed replied that they had never received methodological training but, above all, the same percentage responded that they did not feel the need to receive that type of training or discuss methods, unless they had to work in multidisciplinary groups or apply for research grants (which usually include a methodology section) (brems, 2009, pp. 84-85). in other words, legal scholars who engage in legal research in human rights not only do not receive training on (legal?) research methods, but they do not feel the need for such training or to discuss the research method while they are among legal scholars. in fact, it is generally the interaction outside their scientific community that leads them to consider the methodological issue. not only do legal scholars seem baffled at the questions about their method, but they also do not seem concerned about the criticisms made of their work because of a lack of methodology. this may be partly due to the fact that social science tends to judge legal research according to whether or not it uses social research methods, and whether or not legal research pursues research objectives and questions that can be understood from within empirical social science research (feldman, 1989, pp. 2-5). legal scholarship has been frequently accused of not being concerned about the effectiveness of human rights (coomans et al., 2010, p. 181), for example; or about whether legal provisions for human rights really defend human dignity or not (kennedy, 2004, p.24); or about what could have been the 'true' reasons for a state to sign a certain human rights treaty. from outside the legal community, it is usually considered that only the part of legal research that is closest to the social sciences (socio-legal research or research by the various ‘law & something’) is actual research. but most of legal research is doctrinal or dogmatic,5 and legal scholars who conduct it rarely feel challenged by that kind of criticism: their job is not to study the effectiveness of the norms, nor their political or economic appropriateness, but the effectiveness and validity of the norms within the legal system, which is a normative dimension of the rights rarely visible to the social sciences. finally, legal scholars' lack of reflectivity on the legal method and its invisibility from outside the legal community make it difficult to comprehensively convey a criticism of the methodology: what is missing, what is not done, and the standards to be used to assess the validity and the scientific nature of the method. there is a good example for this in the above-mentioned study conducted by eva brems. after examining a range of legal research papers on human rights published in some prestigious international journals, brems concluded that explaining the method used was not the norm in these publications. she also explained what had counted as a “methodological description” in her review; she admitted that a single phrase along the lines of 'the research question will be addressed through the analysis of the jurisprudence of the european court of human rights' was sufficient (brems, 2009, pp. 87-88). thus brems’ review shows not only how 5 the discussion below will use the expressions 'legal doctrine', 'legal dogmatics' and 'doctrinal research' as synonyms. i am aware that there are differences between them. however, these would not be very relevant to the issues at stake here, and elaborating on these distinctions in an article of general scope would create an additional difficulty. dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 4 often this legal research in human rights is conducted without any methodological indication, but also the lack of guidelines on what it is and should be considered as method, methodology and methodological discussion in legal research. i.2. criticism of the lack of methodological rigour in a subjective sense in addition to this lack of technical rigour in the selection and application of the method, human rights research is also considered to have methodological shortcomings from a subjective point of view. some authors have attributed the lack of attention to research methodology to the fact that individuals who conduct research into human rights are often activists or were former activists (føllesdal, 2009, p. 233; coomans et al., 2010, p. 179). in these cases, methodology may be dispensed with because, if they ignore the demands and constraints involved in applying a rigorous methodological approach, scholars/activists can ‘point’ research towards the conclusions they previously established, a trap that leads to ‘wishful thinking’ (coomans et al., 2010, p. 179); in other criticisms that used harsher language, human rights research has been considered to be ‘ideological’ in nature, as opposed to scientific. andreas føllesdal, for example, considers this research to be ‘normative’:6 as these researchers are activists, there is a tendency to ‘dull an appropriately sceptical attitude’ towards human rights institutions. human rights research has an ‘agenda’ that seeks to promote human rights (or, in føllesdal's words, the ‘legal human rights’ that national and international norms are, as opposed to the philosophical conceptions of human rights or philosophical rights, which relate to human dignity and/or social justice). this agenda causes the pronounced absence of internal criticism of human rights by human rights scholars. according to coomans et al. (2010, p. 182), it is the 'passionate' belief held by these legal scholars/activists in the goodness and usefulness of human rights norms and institutions that leads them to direct their work towards improving and respecting human rights norms, ignoring that these are merely instruments in the defence of human dignity and that they may not even be good instruments. in this sense, human rights research and again, in particular, investigation conducted by legal scholars is accused of being lenient or deferential towards human rights institutions; and of putting itself at the service of the establishment by being reluctant to make any unnecessary (or even necessary) criticism of the activities and output of international human rights organisations. the research carried out by these legal scholars/activists is therefore unable to promote transformation, and it cannot even properly defend human rights institutions or the implementation of human rights. 6 føllesdal makes a distinction between the ‘normative’ of human rights research and the ‘normative’ in political philosophy (his own disciplinary field). legal research in human rights is 'normative' in a pejorative sense, since this 'normative' attitude is identified with the absence of the 'appropriate sceptical attitude' that should characterise scientific research, which borders on an also pejorative use of 'ideology'. the normative nature of philosophical research in human rights, however, seeks to examine the justifiability of norms and values (føllesdal, 2009, p. 233). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 5 in summary, it has been argued that the human rights scientific community, especially legal scholars, live in and maintain an ivory tower of abstract human rights research. their research has been portrayed as being far removed from real experiences and from the actual effectiveness of human rights to protect the dignity of millions of people who are abused, and as being unable to create the conditions for ensuring that their knowledge output is appropriate. i.3. separating the wheat from the chaff in the criticism of (the methodology used by) human rights legal research the criticism of a lack of methodological rigour in human rights legal research related to both technical and subjective aspects is not unproblematic. however, i believe that both aspects are worthy of being taken into account to appreciate, and ultimately correct, the methodological limitations of human rights research. in order to better focus on those aspects of legal research methodology that should be strengthened, it would be useful to separate the wheat from the chaff in terms of criticism. this highlights a number of issues. first of all, it is striking that both the origin of these criticisms and the discomfort of legal scholars themselves when talking about methodology emerge in the context of the increasingly multidisciplinary nature of the field of human rights research. at least since the late 1990s, human rights have no longer been an object of study only for public international law. the interest that human rights have aroused in other disciplines enriches our knowledge about them, but radically changes the context of study. human rights are a multidimensional phenomenon, so any monodisciplinary approaches (not only legal research) are insufficient to understand their complexity. in order to create new knowledge about human rights, we have to accept this new multidisciplinary landscape and provide the necessary interdisciplinary research conditions for fruitful collaborations to take place between different partial forms of knowledge. while the methodological issue is not the only aspect involved, it is one of the fundamental factors in establishing such collaboration. secondly, a consideration can be made on the trail of the criticism regarding the weight of legal doctrine and legal dogmatics in human rights legal research. many of the critical views on the work of human rights legal scholars do not seem to have a clear understanding of what constitutes legal dogmatics and what its purpose is.7 hence it is necessary to give some thought to the relationship between doctrinal and non-doctrinal 7 some of the criticisms really seem to be begging the question. for example, it is surprising that human rights legal scholars are considered ‘deferential’ towards human rights courts and the monitoring bodies of human rights institutions because they regard their pronouncements as authoritative. the function of legal doctrine is precisely examining the norms within a legal system, and within that legal system, legislative texts and decisions by courts are authoritative, they set the boundaries of the legal order that legal doctrine assesses. of course, one may be interested in other things (for example, in finding what the social impact of certain decisions of human rights courts is), but legal doctrine cannot be deemed to be doing a bad job because it fails to answer a question that is outside its remit. if you cannot hammer a screw, the fault does not lie in the hammer. dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 6 legal scholarship (as it happens in other areas of legal studies8). also, it should be investigated how legal doctrine can be productive to the other sciences; how its research results can be ‘translated’ for those outside legal scholarship; and ultimately, how to find methodologically appropriate ways to validate dogmatics against different external parameters. a third point of reflection closely linked to the idea of the ivory tower is that related to the limits legal doctrine has in doing 'criticism.' what can the role of criticism be in legal doctrine? how can critical concepts that go beyond identifying contradictions and gaps, interpretations or misconceptions be introduced, in order to propose mechanisms for resolution? can a critical concept be introduced and rendered operational to apprehend complexity and design appropriate responses? can legal doctrine accept a form of 'external criticism' that does not ignore the systemic nature of rules, the authoritative sources of interpretation, etc.? one which does not fall into 'wishful thinking', confusing the wishes, the claims, and the individual experience of injustice with rights? can the concept of criticism of critical theories be introduced to examine power relations? a final consideration worth making at this stage, forced by criticism, is that a relationship between scientific reflection and legal practice is necessary in and almost constitutive of legal research. in the field of human rights research, this relationship is not only established between legal scholars and legal practitioners (human rights lawyers, judges, experts sitting in human rights monitoring bodies), but also with human rights activists who may not be lawyers (in fact, very often they are not). can methodological reflection help us do human rights legal research that is not reduced to being a mere ‘crutch’for practitioners' work? is there such thing as basic legal research and applied legal research, as in the hard sciences? what is the difference between theoretical legal knowledge about human rights, and legal knowledge of human rights that is derived from both legal and non-legal practice, and from activism? ii. the new work context for human rights legal scholarship none of the above-mentioned arguments and criticism of legal methodology are new, nor have they changed substantially within legal science.9 however, as mentioned before, in human rights studies (and certainly in other fields of study related to social justice) questions are being raised that oblige legal scholars to explicitly rethink the methodological problem and to address it in a new way. before concentrating on the two issues that i believe have radically altered the landscape of human rights studies since the 1990s, i want to emphasise the role that disciplinary multiplicity plays as a catalyst in the new context for the work of human rights legal scholars. 8 for example, in international law and european law (van gestel and micklitz, 2011; van gestel et al. 2012), in the history of law (jensen, 2016), or in comparative law (legrand, 2017). 9 suffice it to recall the work of j. von kirchmann the worthlessness of jurisprudence as a body of knowledge (english translation) (die wertlosigkeit der jurisprudenz als wissenschaft, darmstadt, 1848). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 7 if one accepts the fact that there is disciplinary plurality in the field of human rights studies, the issue of interdisciplinarity and the methodological challenge that it entails also needs to be taken seriously. if what we can and want to know about human rights is no longer limited to the knowledge and understanding of the international norms that establish them, the analysis of the texts in which they are contained and the operation of the international organisations that are responsible for monitoring their compliance by states, it follows that we will need to have some mechanisms to answer the various questions we may want to ask. this is a key aspect in the new reflexion on research methodology on human rights (mcconnell and smith, 2018; andreasen et al., 2017; coomans et al., 2009) but one that is usually resolved by using juxtapositions. in interdisciplinary research, or even in research conducted by multidisciplinary teams, it is very important to establish forms of ‘translating’ between the different disciplines and epistemological and theoretical approaches in the research design stage. this will minimise the danger of ‘incommensurability’ between languages and research findings depending on the different methods used. in interdisciplinary research, it is necessary to move forward with methodological approaches and methods that can act as 'chameleons' or as 'amphibians', adapting to different environments and their requirements. this task is clearly not to be performed by legal scholars by themselves. the construction of an interdisciplinary approach that goes beyond the juxtaposition or the substitution of some types of knowledge by other (equally partial) types, which is not dissolved in dilettantism or in a 'know-it-all' approach, and seeks to find a shared solution to new, more complex, multidimensional knowledge gaps, is a task to be undertaken by the scientific community as a whole. this process would ultimately transform that knowledge and turn it into a social production. this interdisciplinary transformation obviously cannot be addressed here.10 but it is important to realise that this is a fundamental challenge in the methodological scenario of current human rights research. if legal scholars (and all other scholars) wish to participate in that scenario, they have to act convergently, stepping outside of their ivory towers. ii.1. the contestation of human rights this section deals with two aspects that change significantly the contexts in which the methodological issue needs to be considered. these two aspects (the contestation of human rights and the complexity of the human rights law system) make it necessary to deal with the methodological issue not only explicitly, but also in a way that is different from previous waves of concern about methodology. 10 see the contribution by cristina de la cruz in this same issue. dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 8 the first aspect is that the concept of human rights has become increasingly and more frequently contested. the 40 years that separated the universal declaration from the end of the cold war saw the affirmation of human rights as a powerful mechanism of political legitimation and as a vehicle for claims from radically diverse groups. the context and conditions in which human rights doctrine became extended and established during what came to be called the 'age of rights' (bobbio, 1990) cannot be discussed here. however, paradoxically, at the time when bobbio coined this term, a process of contestation of human rights matured and raised new and old issues on several fronts. the old issues, that had not been resolved at the time of the universal declaration, delayed the drafting of the international covenants and their entry into force, and meandered throughout the cold war period. they included the opposition between political civil rights and economic, social and cultural rights, the nature of rights as a ‘natural’ limit to the state, and their international protection as a limit to the sovereignty of the state. some new issues also resulted from the global geo-political conditions that arose in the late 1960s, the decolonisation process, the emergence of regional human rights protection systems, the fall of communist regimes in europe, and the development of international civil society organisations. since the beginning of the new century, a theoretical reflection has also emerged on the ‘human rights crisis’ (klabbers, 2002; hoover, 2012; morondotaramundi 2014) and the urgent need to re-found their doctrine. the human rights crisis does not really involve a new set of claims that are sometimes divergent or even in opposition to human rights as they were reflected in international human rights law. this process of contestation is not in itself a negative development, nor does it in itself discredit the age of rights, although it denounces some of its critical points. if we understand human rights as a corpus of rules, the processes of change and transformation of the law are inherent to the very idea of social regulation. the human rights crisis that has been theorised since the beginning of the century has other components. in his analysis of the crisis, a. langlois opposes this critical literature (which he qualifies as an ‘anathema to the promotional propaganda of human rights that we are accustomed to hearing’ (langlois, 2012, p. 559) to the naive rhetoric of the human rights movement that includes universalism, indivisibility, inalienability and a long list of new rights, treaties and mechanisms. it is important to note that what is described as naive rhetoric and promotional propaganda of human rights are not marginal details, but their main theoretical elements (universality, indivisibility and inalienability) and operational components (positivisation, internationalisation and provision of control and guarantee mechanisms). in addition, the theoretical contestation of human rights in recent years has not so much questioned the specific political consensus on which the expansion of human rights was based,11 but the idea of a political consensus detached 11 indeed, many aspects of the political consensus around the universal declaration of 1948 may be (and have started to be) criticised (jensen, 2016). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 9 from the objective (or, at least strong and compelling) foundations of human rights (klabbers 2002; morondotaramundi 2014). this is also, therefore, a crisis about the meaning of human rights, which has become undermined as they have been instrumentalised into playing a role in legitimising power. this crisis is also a struggle –not for rights– but for the meaning attributed to the expression ‘human rights’, including its rhetorical use in a symbolic function, the emotional pseudo-definitions, and the continuous prescriptive re-definitions. i think that the main vector of ‘rhetoric’ in human rights is this crisis and not, as coomans, gründfel and kamminga (2010, pp. 182-183) argue, the mere fact that there are activists doing research or that human rights scholars –generally– want to improve the implementation and enjoyment of human rights. this is the context in which human rights legal scholars have to work today: a human rights legal system where political consensus has become eroded and a struggle around the definition of human rights that includes some of its fundamental elements (foundations, portfolio, guarantees and subjects). i believe that human rights today –and probably since the 1990s– have the characteristics of ‘essentially contested concepts’ (gallie, 1956). essentially contested concepts are those notions ‘the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’ (gallie, 1956: 169). these concepts involve a disagreement about the reasons for attributing a certain meaning to a particular linguistic expression.12 gallie warned that the indeterminate nature of these types of concepts cannot be resolved by appealing to logic or linguistics. the plurality of meanings of the expression ‘human rights’ and the mechanisms for determining the dominant meanings are not related to either coherence or semantic or pragmatic correction (as in the case of ambiguous expressions or vague concepts), but to more complex theoretical debates about their role in society and their fundamental properties. ii.2. the complexity of human rights law a key aspect in the consideration that human rights legal scholars live in an ivory tower disconnected from reality is probably the way in which legal scholarship deals with the peculiarities of the international system for the protection of human rights. from outside the legal community it is difficult to understand that legal scholars discuss whether a certain right exists without taking into account that in reality it is constantly violated by the authorities of a country or by private groups tolerated by the authorities of a given country; and that their victims have no protection from the law, and they are even often stigmatised and persecuted by law enforcement agencies and the judicial system. likewise, it can be shocking that the existence of a certain human right that is claimed as such by millions of people can be denied, and that certain injustices 12 it is my understanding that the category of an 'essentially contested concept' is also preferable to the concept/conception distinction made by r. dworkin (1977, pp. 134-136), because it compels us to consider the problem from an argumentative/justifying point of view that is, in my opinion, more fruitful than the analytical-conceptual framework of dworkin's distinction. dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 10 cannot be categorised as human rights violations (christiansen and jensen, 2019; alston, 2015). it might seem that the human rights of legal scholars exist in a separate world, parallel to real life on the planet. and yet, the boundaries of that separate world are precisely the second aspect that changes the work context in which human rights legal scholars have to face their new methodological challenges. burdened with the theoretical requirements of the doctrine of the universality, indivisibility and inalienability of human rights, human rights legal scholars have to enter a ‘legal system’ of a sui generis nature. indeed, international human rights law has two sets of characteristics that alter the usual environments of legal theorisation (i.e. national legal systems) and that, by comparison, make it look like a ‘crowded house’ (cruz villalón, 2012). cruz villalón, advocate general at the court of justice of the european union, uses this analogy of the 'crowded house' to refer to the current state of fundamental rights in europe13 in reference to both the rights that are considered fundamental, and to the people who deal with the complex task of declaring and applying them. while the intervention of cruz villalón highlighted how the judges of constitutional courts and courts of human rights in europe find it awkward to cohabitate in a crowded house, following this metaphor, i would like to discuss the difficulties that living in a crowded house entails for anyone who has to tidy up, find the belongings of each person in the house, and plan the shifts to watch tv there (i.e. legal scholars). that is, one dimension of the complexity of the human rights protection system to which the legal scholarship has paid increasing attention (brems, 2014; o’cinneide, 2009; brems and ouald chaib, 2018; bribosia and rorive, 2018) is its multi-level and multi-layered nature. in general terms, it cannot be said what a certain human right consists of (what it protects, what cases it covers, what its limits are, and who its right holders and duty bearers are). in different places, human rights are defined by the interaction of up to four levels of protection14 that could be aligned with, contradict, or complement each other. even where the founding provisions contain similar or identical formulations, there is a plethora of implementers of those standards that may differ in their interpretations or find themselves in so-called ‘zones of friction’. many of these zones of friction are jurisdiction problems or issues involving the application of legal concepts that the legal scholarship is called to examine and possibly solve. the other dimension of the complexity of human rights law is the multitude of rights; not so much because there are too many human rights15 but, as cruz villalón pointed out, because their sources are broad and heterogeneous (national constitutions, 13 although cruz villalón applied the analogy in a more restricted way to the european protection system, i believe that, mutatis mutandis, it is even more valid when applied at a global level. 14 international/global, supranational/regional, national and sub-state/local. see, for example (marx et al., 2015). 15 the first decade of this century has produced vast literature around the ‘inflation’ of human rights, and the need to limit the rhetoric of their language and 'streamline' protection only for those rights that are most necessary in the defence of human dignity. i have examined some critical points of these doctrines in morondo taramundi (2014). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 11 supranational declarations, charters of rights, international treaties). there are major differences between human rights sources according to their origin, age, acquired authority, symbolic function, legal force and guarantees (cruz villalón 2012, p. 3). for all these reasons, the legal dimension of human rights cannot be fully understood by applying a view of the legal norms that is indebted to national legal systems.16 not only does the corpus of human rights law have a significant proportion of international law; it also receives a different impact according to the various sources across a broad spectrum of graded rules. these sources are not interchangeable, although the formulation of the right they contain may be; but they are not incompatible either. therefore, it is for legal scholarship to elucidate the issues concerning to what extent human rights (which are configured in the interaction of multiple heterogeneous sources and in the practices of creation, interpretation and application of various subjects called upon for their protection) are legal in nature. these two dimensions, the multilayered character and the heterogeneity of the sources (including those that do not have full legal nature or are 'quasi-legal', 'soft law', etc.), have to be taken into account when thinking of human rights legal research as being necessarily different from the legal scholarship (doctrinal and non-doctrinal) that can be produced within national legal systems. iii. the escape routes from the ivory tower: some cues let us assume, then, that we take seriously (albeit critically) the criticism of the methodological limitations that can be seen in human rights legal research today; and that, at the same time, we take into account this new multidisciplinary human rights research context, which has been shaken by the contestation of human rights and is extremely complex from a legal and regulatory point of view. this section outlines three issues; three escape routes from the ivory tower that could provide the basis for a methodological reflection on legal research in the new context. this endeavour commands a critical perspective that can contribute to the shared tasks involved in human rights studies and, at the same time, influence the real (although not immediate) protection of human rights and their values. the proposals provided below are not fully developed strategies; they are not an instruction manual and they are not accompanied by a series of methods (with lowercase ‘m’). nor are they alternative strategies to choose from. they are different elements for reflection on methodology (with a capital ‘m’). specifically, on the questions that need to be asked and answered when designing the research study, to be used as guidance in selecting specific methods; in recognising the limits of our research; in identifying complementarities in other scientific disciplines and with other sources of knowledge based on practice; and in assessing the possible social impact and the potential of knowledge for social transformation. 16 neither kelsen's inverted pyramid, nor even hart's rule of recognition seem adequate ways of thinking about these complex systems any longer (smits, 2009, p. 55). dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 12 iii.1. disclosure the first escape route from the ivory tower involves engaging in methodological reflection and disclosing it. a conscious reflection on methodology that is not merely the choice of a method to collect or to analyse data; it compels us (legal scholars) to position ourselves in the theoretical and epistemological panorama of scientific research and human rights studies. this is undoubtedly easier in the field of non-doctrinal legal research, in the various sub-disciplines of law & something and in law-in-context studies. in these areas, legal research can avail itself of the theoretical and methodological reflections of the disciplines that law is related to. but the fact that there is a well-trodden path does not mean that there are no further steps to take. the methodological reflection of multidisciplinary approaches in legal research should always adopt a self-analytical attitude to avoid a gradual movement away from the practice of law that may render it irrelevant to the understanding and transformation of law. in a review of the us debate on legal scholarship and methodology, van gestel and micklitz (2011) showed a fracture between two sides: ‘multidisciplinarians’ and ‘doctrinalists.’ although multidisciplinarians take the credit and the intellectual reputation in elite universities, legal doctrine is still the foundation of legal education. in addition, their analysis showed that there are signs of a trend reversal in terms of considering ‘black letter law’ scholarship to be dead. this and other studies warn of the danger that the increasing instrumentalisation of law may reduce legal research to a mere policy instrument (van gestel et al., 2012, p. 20). this explicit reflection on the theoretical and methodological positions is even a greater challenge in the investigation of legal doctrine or legal dogmatics. in fact, many authors who have addressed the problem have opted to abandon legal doctrine in favour of multidisciplinary approaches in the study of law. this is not the position endorsed here. there is no reason to believe that if legal scholars engaged in discussions about objects other than rules, such as human dignity or democracy (as some do), their work would be of a higher methodological standard than their production as legal scholars. much to the contrary. nor is there any reason to believe that legal scholarship would be of better quality if it adopted methods from other disciplines, such as empirical research methods.17 therefore, let legal scholars do their job. the escape route from the ivory tower does not require that legal doctrine or dogmatics disappear. the need for engaging in and disclosing methodological reflection does not mean that doctrine has no role in the new context of human rights research, or that legal scholars have to improvise or become recycled into something else (sociologists of law, or experts in legal anthropology or legal-social psychology). taking criticism and the new context seriously implies that legal doctrine can improve. a legal dogmatics of human rights can surely go beyond merely commentating 17 empirical legal research has grown significantly (van dijck et al., 2018). however, critical voices have also emerged about its limits in terms of its production of knowledge about law (leeuw, 2015). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 13 on and glossing judgments and new rules; it can contribute more than by simply uncritically systematising normative data and the techniques used to resolve contradictions or indeterminacies in the system. the methodological turn in the legal doctrine would also oblige legal scholars to learn to ‘translate’ and share our knowledge with other disciplines; to learn to incorporate the knowledge produced by other disciplines; and to understand the ways of ‘leveraging’ legal research outputs into wider and more complex environments than the relatively homogeneous communities of their legal scholar colleagues. improving legal doctrine does not mean making it more similar to ‘multi-disciplines’ (the various ‘law & something’ or law-in-context disciplines), but to refine its own nature. iii.2. critique a second escape route from the ivory tower is to make legal research more aware of the relationship between the human rights rules that are analysed and the power they contain and represent. according to the traditional understanding of doctrine, legal scholars criticise the ‘failures’ of the legal system (contradictions, gaps, the indeterminacy of law) and propose solutions for the self-integration of the system. in other words, criticism means detecting errors and proposing solutions, but within the legal system,18 in order to improve the functioning of law. in my opinion, criticism can have two additional meanings, both of which can have a place in human rights legal research, including the legal doctrine of human rights. on the one hand, criticism can refer not simply to the detection of ‘errors’, but to the analysis of complexity. a critical study of legal doctrine, in this sense, would not only be devoted to identifying contradictions and proposing solutions de lege ferenda for the (better) protection or legal guarantee of a right, but would examine the ‘errors’ (contradictions, gaps or indeterminacies) found in relation to differentiated factors, both internal and external to the human rights law system. in this area, the law can be deemed to be a ‘discipline in transition’, to use the expression of the dutch evaluation agency (in van gestel et al., 2011, p. 2). it is a discipline that is facing a move towards more internationalised and globalised studies, towards reducing the predominance of legal practice within its purpose, towards multidisciplinarity and interdisciplinarity, and towards abandoning implicit traditions in favour of methodological approaches. indeed, the approaches that have tried to deal with the idea of criticism as an understanding of complexity are numerous: for example, studies of the multi-layered nature of human rights protection mentioned earlier, work on distinction between substantive and procedural violations of human rights (gerards and brems, 2017), and the growing attention given to dissenting opinions (white and boussiakou, 2009). 18 obviously, this idea of a closed, comprehensive system, capable of self-integration (which is a requirement for the guiding value of modern legal science, that is, the certainty of the law) has been criticised as a 'myth' since the end of the nineteenth century by all anti-formalist currents of law (calvo, 1994; van gestel and micklitz, 2011). dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 14 there is a further meaning of ‘criticism’, which is in my opinion the one that most lends itself as a route of escape from the ivory tower. i refer to the use of ‘critical’ in the expression 'critical theory', that is to say, those theories that enquire about essential nodes of social power relations (based on class, gender, race, disability, migrant status and other fundamental axes of subordination of groups of individuals in our societies). in the study of human rights, critical theories are the perspective that would make it possible to understand human rights, according to the bobbian adage of human rights as a result of new struggles against old powers.19 the question of power is, therefore, a fundamental issue in human rights research. the investigation of power is always complicated, both because of the heterogeneous ways in which it manifests itself and because of its ability to become invisible, in particular, in contact with the law (which shows its institutionalised or ‘naturalised’forms). it is important to reflect on how to deal with the issue of power in legal research and, in particular, in the legal doctrine of human rights. this is an even more urgent question if we take into account the current context of contestation of human rights. so far the issue of power has been almost exclusively approached by those who review human rights law from critical perspectives, namely, those who carry out an examination of the law from outside the law.20 the approach to the issue of power from within is hindered today by the hegemonic theory of human rights law: the so-called theory of generations of human rights. the theory of the generations of human rights is a narrative about rights that was imposed during the cold war and became both the historiography and the dominant theory of human rights. proposed by karel vasak in 1979, the theory classifies human rights into three separate groups: firstgeneration human rights, which includes civil and political rights; second-generation human rights, which comprises economic, social and cultural rights, and third-generation human rights, made up of collective or solidarity rights. each of the groups is explained on the basis of a different historical origin (the liberal revolutions, the democratisation processes and the proletarian movement of the nineteenth century, and the development processes linked to the post-colonial period, respectively). it is not just a historiography, since generations also function as analytical categories that explain the legal characteristics of each type of right: its legal nature, its right-holders and duty-bearers, and the type of associated guarantees. i agree with other authors (jensen, 2017) that this is a fundamentally flawed theory (which actually concealed and sustained the ideological partition of the world in the cold war).21 the theory of generations is an erroneous historiography of human rights (jensen, 2017) and has no explanatory capacity from a legal point of view (ferrajoli, 2011; macklem, 2015). as a theoretical configuration, it 19“human rights however fundamental are historical rights and therefore arise from specific conditions characterized by the embattled defence of new freedoms against old powers” (bobbio, 1990, pp. xiii). 20the literature is too broad to be cited: feminist, anti-racist, post-colonialist and de-colonialist perspectives, critical legal studies and post-marxist perspectives, to mention only the best known. 21 jensen noted how vasak's initial work in 1977 was intended to promote the agenda of a third generation of rights to development, peace and a healthy environment (although its implementation was of little benefit to the effective development of these rights, since the duty-bearers were not even defined for the thirdgeneration rights). escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 15 also locks the definition of human rights to a series of historical ‘roots’ in a kind of genealogical determinism and establishes a strong hierarchy between them. it is essential to question it in order to appreciate the contestation of the definition of human rights by what is really a political phenomenon. by contesting the theory of generations, a discussion can be initiated about power in human rights rules. it must be borne in mind, however, that both the genesis of the declaration and the prominence of the theory of generations have effectively hindered the development of theoretical knowledge of human rights, and that we are at a very early stage in this regard. if one asks people (not students, but scholars) or reviews scientific works and manifestos of international organisations about what human rights are, the outcome is discouraging. colleagues and reference works do what children do when they are learning to speak: finger-pointing. definitions of human rights are in most cases denotative definitions (provided by enumeration or by giving examples) and even ostensive definitions (by directly pointing the finger at the declaration or some other treaty). any attempt beyond that falls into the circular definition: ‘human rights are rights that are inherent to human beings.’ while the questioning of the so-called theory of generations and a renewed historiography of human rights (jensen, 2016) suggested using new approaches to their definition and analysis, critical theories can and should play an important role in this development in order to preserve the ability to analyse human rights as an expression of power relations. following the insights of other legal disciplines, when developing our theoretical and methodological assumptions about studying human rights law we must take into account that legal positivism (and the legal doctrine that is developed within that framework) prioritises the certainty of the law at the expense of excluding the challenges involved. pierre legrand warned that in the positive doctrines ‘certain knowledge is banished from the sphere of significance, and some issues are made never to arise, therefore allowing for (…) an ultimately immaculate development of internal heuristic processes generating ultimately immaculate legal results’ (legrand, 2017, pp. 6-7). to avoid the epistemic self-referential and self-contained ivory tower, human rights legal scholars, as comparative law scholars, need to free themselves from the obsession with the certainty of law in legal positivism and recognise ‘the essential unruliness of legal texts and legal cultures’ (legrand, 2017, p.44) also or particularly so in the human rights law systems. iii.3. co-work/network the third escape route from the ivory tower is related to the 'crowded house' discussed in the previous section. the production of knowledge about human rights is a collective task in the hands of a heterogeneous plurality of subjects, who provide partial and sometimes fragmentary forms of knowledge. this leads us, again, to the need to consider the methodological characteristics of this multidisciplinary and multisectoral type of research; one partaken of by subjects whose interest in research is not the production of knowledge in itself, nor its dolores morondo taramundi the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 16 transmission, as in the case of scientific research, but its showcasing for practical purposes of social transformation or the defence of individual or collective interests. i disagree with the argument posed by coomans et al. (2009 and 2010) that the root of the problem regarding the quality of human rights research is the confluence between academia and activism (whether in terms of individuals or work teams), or that activism has an agenda and practitioners have a function. this would be like holding that, for medical research to be good, it has to be indifferent to the ability of the results to effectively cure diseases. as feldman argued, scientific knowledge for all fields ‘involves curiosity about the world, which may be stimulated either by the need to achieve a goal or by desire to understand something for its own sake’ (1989, pp. 502-503). but coomans and his colleagues were right in proposing the use of methodology, or rather, of methodological rigour and the critical function, as instruments to curb ‘hagiography’ and rhetorical uses in the field of human rights (which are frequent in some areas more than others, although not only found among activists). a reflection on methodology can draw the areas of collaboration and the boundaries between human rights legal scholars and other actors who do research, but not scholarship, in the field of human rights. these lines would have the function of preserving the scientific aspirations of human rights legal scholarship, preventing its role from being reduced to being merely an ancillary instrument in the work of legal practitioners, human rights ngos and policy-makers. legal scholarship, in this way, can aspire not only to create more knowledge about the legal dimension of human rights, but also better knowledge, enhanced methods to approach that dimension, more accomplished theories to explain it, and better paradigms to integrate such knowledge with that of other disciplines. the confluence of academia and activists also has zones of friction, even when working on a common theoretical approach. one of the greatest difficulties we face in our doctoral programme, for example, is that we receive applications for admission from people who have been working in the field for years (with national and international organisations in humanitarian intervention, in human rights policy implementation programmes, etc.). it is challenging to explain the difference (as an intellectual activity and as a result) between the doctoral thesis and a report (however detailed and innovative). it is difficult both for those who need to explain it and for those who seek to understand the explanation. at a time when scholars are required to produce research at an increasingly fast pace, to direct it more towards measurable impacts, to bring it closer to the interests (or the needs) of public administrations, and ultimately increasingly closer to transfer than to basic research, it is problematic to define what it means to ‘push the boundaries of knowledge’, and what the degree of ambition should be in a doctoral project. escaping the ivory tower: legal research on human rights from a critical perspective the age of human rights journal, 13 (december 2019) pp. 1-20 issn: 2340-9592 doi: 10.17561/tahrj.n13.1 17 iv. conclusions this paper has reviewed some of the most common criticisms of the research conducted by human rights legal scholars in relation to some of its methodological deficits. according to critics, these deficits are based on poor, self-referential research results that are detached from the reality of human rights in people's lives, and lacking in terms of critical capacity. in order to escape from the ivory tower of human rights legal research, however, some new characteristics of the context must be taken into account. the field of human rights studies nowadays has a plurality of scientific disciplines; human rights are a contested concept (unlike what happened until the end of the twentieth century); and human rights law, which has developed spectacularly, has extremely complex characteristics related to the sources of law, degrees of regulation, interpretation mechanisms and guarantee systems. taking into account both the criticism and the new context, three ‘escape routes from the ivory tower’ have been outlined that suggest some elements to initiate a methodological reflection in human rights legal research. first, the need to disclose the actual methodological reflection, to ensure that it enters the very process of exposure to criticism and can eventually improve, as typically found in scientific work; and also to be able to ‘translate’ legal research for the other disciplines with which we have to collaborate in the ‘crowded house’ of human rights. second, the need to incorporate criticism, not only as a review of the system's malfunctions –as traditionally has been done in legal doctrine– but with a view to studying the complexity of the power relations reflected in the norms. if human rights are born in the ‘struggles in defence of new freedoms against old powers’, power relations need to be accounted for. and third, the need for academics, practitioners and activists to collaborate and use methodological reflection accurately, so as to delimit the forms and confines of that collaboration, preserving the function of each group and the scientific ambition of legal scholarship. references alston, ph. 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(2009) ‘separate opinions in the european court of human rights’, human rights law review, 9(1), pp. 37–60 https://doi.org/10.1093/hrlr/ngn033 received: august 19th 2019 accepted: september 25nd 2019 https://doi.org/10.4324/9781315672632 https://ssrn.com/abstract=1370264 https://doi.org/10.5553/rem/221225082011001001002 http://www.erasmuslawreview.nl/tijdschrift/elr/2018/2/elr-d-17-00020.pdf http://www.erasmuslawreview.nl/tijdschrift/elr/2018/2/elr-d-17-00020.pdf https://cadmus.eui.eu/handle/1814/16825 https://ssrn.com/abstract=2069872 https://doi.org/10.1093/hrlr/ngn033 chapter three – media trial the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 102 privacy as a human right and media trial in india gifty oommen 1 abstract: even before india became independent, it had already become party to the united nations declaration on human rights 1948 (udhr). press had played a very important and productive role in the independence movement, through its strong support for the popular movement of satyagraha and abdication of foreign goods and other similar forms of freedom struggle. such was the impact of the print media that it frightened the british, as it gave a picture of a strong india, though the reality was a disintegrated india ruled by princely kings and people in deep poverty. the framers of our constitution knew the immense power vested in the print media, therefore they imbibed the freedom of speech and expression in article 19(1) (a) of the indian constitution from article 19 of the udhr, and also reflected similarly in article 19 of the international covenant on civil and political rights 1966 (iccpr). udhr 1948 in article 12 and iccpr 1966 in article 17 give protection to the concept of privacy. though freedom of speech and expression given in article 19 of the udhr 1948 and iccpr 1966 was enshrined in article 19(1)(a) of the indian constitution. we do not find such constitutional recognition given to privacy in india. here, privacy is not given any separate constitutional status. right to life, liberty and security of person is enshrined in article 3 of the udhr 1948. this is recognized in article 21 of the indian constitution. privacy was not included in this article. in nihal chand v.bhagwan dei during the colonial period, as early as in 1935, the high court recognized the independent existence of privacy from the customs and traditions of india. but privacy got recognition in free india for the first time in kharak singh case. in kharak singh v. state of u.p., the supreme court struck down domiciliary visits by the police as it violates article 21. but it was in the minority view given in this case by justice subha rao, that privacy got recognition as a right included in article 21 of the constitution. in this case the apex court recognized privacy as part of right to life and personal liberty. privacy was recognized as a separate right in udhr 1948. this has failed to materialize in the same spirit as a fundamental right in the indian constitution, like the right to speech and expression and right to life. article 3 of the udhr 1948, protects life and personal liberty, not privacy. in india privacy is described as part of right to life and personal liberty in article 21 of the constitution as there is no separate provision for privacy in the constitution. privacy has been defined by supreme court in sharada v. dharampal as ‘the state of being free from intrusion or disturbance in one’s private life or affairs’. this is different and distinct from the life and liberty in article 21 of the constitution. india being signatory and party to the udhr1948 is bound to protect privacy as a fundamental right in the constitution and also to give a higher status to it in reference to press. keywords: privacy, article 21, press, indian constitution, liberty, law commission of india 1 asst. professor, government law college, ernakulam, india (giftyoommen@gmail.com). gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 103 introduction even before india became independent, it had already become party to the united nations declaration on human rights 1948, (udhr). this was indicative of its future plans and visions for a free and democratic government. in furtherance of this, when it finally got independence the first strategy was to have its own constitution. in 1950 india declared itself to be a fully democratic country, having adopted most of the basic principles of the udhr. indian government understood the importance of press and its impact on the people of india. press had played a very important and productive role in the independence movement, through its strong support for the popular movement of satyagraha and abdication of foreign goods and other similar forms of freedom struggle. such was the impact of the print media that it frightened the british, as it gave a picture of a strong india, though the reality was a disintegrated india ruled by princely kings and people in deep poverty. the framers of our constitution knew the immense power vested in the print media, therefore they imbibed the freedom of speech and expression in article 19(1)(a) of the indian constitution from article 19 of the udhr, and also reflected similarly in article 19 of the international covenant on civil and political rights 1966 (iccpr). 2 but somewhere in their thought process it never came to light, about the consequences of an unbridled horse set free in a vast pasture called india. british india was not a free country like free india. there, the print media had to work under constraints, which forced them to be within rules. originally enacted article 19(2), provided that ‘nothing in sub clause (a) of clause (1) shall affect the operation of any existing law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow, the state’. although article 19(1)(a) does not mention freedom of press. the supreme court in romesh thapper v. state of madras 3 stated that freedom of speech and expression includes freedom of press. it stated ‘turning now to the merits there can be no doubt that freedom of speech and expression includes propagation of ideas, and that freedom is enshrined by the freedom of circulation’. 4 here the supreme court further increased the ambit of the freedom of the press. after this came the first amendment of the constitution in 1951, amending article 19(2). the new article provided ‘nothing in sub clause (a) of clause (1) shall affect the operation of any existing law or prevent the state from making any law, in so far as such 2 u.d.h.r.1948 & i.c.c.p.r. 1966-article 19-everyone shall have the right to hold opinions without interference. everyone shall have the right to freedom of expression ,this right shall include seek, receive and impart information and ideas of all kinds, regardless of frontier in writing or in print , in the form of art, or through any other media of his choice. this exercise of the rights provided for in paragraph 2 of this article carries with it duties and responsibilities. it may therefore be subject to certain restrictions, but be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b)for the protection of national security or of public order, or of morals. indian constitution –article 19(1)(a)every citizen shall have the right to freedom of speech and expression. article 19(2) provides the reasonable restrictions .the constitution provisions are in consensus with the above conventions. 3 romesh thapper v. state of madras 1950 s.c.r. 594. 4 romesh thapper v. state of madras 1950 s.c.r. 594 at p. 597. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 104 law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.’ this amendment further increases the ambit of freedom of press under the constitution. definition of freedom of speech & expression freedom of speech and expression in the context of public interest is the press –the print media and the broadcast media. it has taken the responsibility to inform the public about the functioning of the elected government. this includes all other matters in which public have a right to know. right to discussion and criticize forms an active part of this right. in romesh thappar v. state of madras 5 , the supreme court has included press in the definition of freedom of speech or expression. in l.i.c.v. manubhai shah 6 , the supreme court reiterated as in indian express newspapers v. union of india 7 stated that freedom to circulate ones views can be by word of mouth or in writing or through audiovisual media. this right to circulate also includes the right to determine the volume of circulation 8 . the press enjoys the privilege of sitting in the courts on behalf of the general public to keep them informed on matters of public importance. the journalist therefore has the right to attend proceedings in court and publish fair reports. this right is available in respect of judicial and quasi-judicial tribunals 9 however this is not an absolute right. there are also other important considerations, for instance the reporting of names of rape victims, children, juvenile, woman should be prohibited. this restriction is placed because of their weak position in the society that makes them vulnerable to exploitation. therefore in the interests of justice, the court may restrict the publicity of court proceedings 10 . under section 151 of the civil procedure code, 1908, the court has the inherent power to order a trial to be held in camera. the right to report legislative proceedings is also a part of the press freedom. in a democratic society it is necessary that the society shall be a part of the discussions on policy matters. they need to know the details of debates, as transparency in governance is a must for the proper functioning of a democratic society. this right of the press to true 5 romesh thappar v. state of madras 1950 s.c.r. 594 at page 597. 6 l.i.c. v. manubhai shah (1992) 3 s.c.c. 637. 7 indian express newspapers v. union of india (1985) 1 s.c.c. 641. 8 sakal papers v. union of india, a.i.r. 1962 s.c. 305. 9 saroj iyer v. maharashtra medical (council) of indian medicine, a.i.r. 2002 bom .95. 10 naresh shridhar mirajkar v. state of maharashtra, a.i.r. 1967 s.c. 1. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 105 reporting of parliamentary proceedings is protected by the constitution 11 . it also gives protection to true reporting of the proceedings of state assemblies. 12 a similar protection is provided in the parliamentary proceedings (protection of publication) act, 1977. in tata press ltd v. mahanagar telephone nigam ltd 13 , the supreme court also included into freedom of speech and expression the right to advertise or the right of commercial speech. before this decision, advertisements were not considered as part of the definition of free speech. this decision reflects the dilution in the already wide freedom of speech and expression. it was in variance to the earlier limitation on this freedom, which was enunciated in hamdard dwakhana v. union of india 14 , in which the apex court observed that commercial advertisement does not fall within the protection of speech and expression as there is an element of trade and commerce in them. but in tata case, supreme court stated that advertising pays a large portion of the costs of supplying the public with newspaper. so for a democratic press the advertising subsidy is crucial. the court further observed that without advertising, the resources available for expenditure on reporting the ‘news’ would decline, which may lead to an erosion of its quality and quantity. in hindustan times v. state of u.p. 15 , the supreme court again reiterated the importance of advertising and its connection with the circulation of paper. the right to privacy – international obligations udhr 1948 in article 12 and iccpr 1966 in article 17 give protection to the concept of privacy. though freedom of speech and expression given in article 19 of the udhr 1948 and iccpr 1966 was enshrined in article 19(1)(a) of the indian constitution. we do not find such constitutional recognition given to privacy in india. here, privacy is not given any separate constitutional status. right to life, liberty and security of person is enshrined in article 3 of the udhr 1948. this is recognized in article 21 of the indian constitution. privacy was not included in this article. in nihal chand v. bhagwan dei 16 during the colonial period, as early as in 1935, the high court recognized the independent existence of privacy from the customs 11 article 361-a of the constitution of india (1) no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either house of parliament or the legislative assembly or as the case maybe, either house of the legislature of a state, unless the publication is proved to have been made with malice (2) clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper. explanation: in this article newspaper includes a news agency report containing material for publication in a newspaper. 12 ibid. 13 tata press ltd v. mahanagar telephone nigam ltd (1995) 5 s.c.c. 139. 14 hamdard dawakhana v. union of india, a.i.r. 1965 s.c. 1167. 15 hindustan times v. state of u.p. (2003) 1 s.c.c. 591. 16 nihal chand v. bhagwan dei a.i.r. 1935 all.1002. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 106 and traditions of india. but privacy got recognition in free india for the first time in kharak singh case. 17 in kharak singh v. state of u.p., the supreme court struck down domiciliary visits by the police as it violates article 21. but it was in the minority view given in this case by justice subha rao , that privacy got a recognition as a right included in article 21 of the constitution. in this case the apex court recognized privacy as part of right to life and personal liberty. privacy was recognized as a separate right in udhr 1948. this has failed to materialize in the same spirit as a fundamental right in the indian constitution, like the right to speech and expression and right to life. 18 article 3 of the udhr 1948, protects life and personal liberty, not privacy. in india privacy is described as part of right to life and personal liberty in article 21 of the constitution as there is no separate provision for privacy in the constitution. privacy has been defined by supreme court in sharada v. dharampal 19 as ‘the state of being free from intrusion or disturbance in one’s private life or affairs’. this is different and distinct from the life and liberty in article 21 of the constitution. indian view india is member of the united nations organizations, so it is bound by article 12 of the universal declaration of human rights, 1948 to bring in statutory enactments to keep itself in tune with the international commitment. further, india has also ratified the international covenant on civil and political rights, 1966 20 . india does not give privacy a fundamental right status, while freedom of speech and expression is given protection under article 19(1)(a). privacy is not even enumerated among the reasonable restrictions to the right to freedom of speech and expression enlisted under article 19(2). nevertheless the courts have protected this right to privacy to some extent not just under tort law but also under article 21 and under the reasonable restrictions enumerated in article 19(2) of the constitution. under the tort law, a personal action for damages would be possible for unlawful invasion of privacy. in these cases, the publisher and printer of journal, magazine or book or the broadcaster and producer of a broadcast would be liable in damages. these would arise basically in relation to matters concerning the private life of the individual, which includes the family, marriage, parenthood, children and his sexual life. let us have a look at some of them. 17 kharak singh v. state of u.p. and others 1964 s.c.r. (1) 332. 18 u.d.h.r. 1948article 3everyone has the right to life, liberty and security of person. 19 sharada v. dharampal, (2003) 4 s.c.c. 493, at p.521. 20 article 17 of the international covenant on civil and political rights ,1966: 1. no one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honor and reputation. 2. every one has the right to the protection of the law against such interference or attacks. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 107 (i) morality and decency one of the restrictions imposed on right to free speech and expression is in the interest of ‘morality’ and ‘decency’. there are several legislative provisions governing these two elements 21 . apart from these provisions there are some judicial decisions also. these two terms have no specific meanings. these change according to the value system of a given society. it changes from one generation to another; and also from one judge’s perspective to another. in chandra kant kalayandas kakodkar v. state of maharashtra 22 the supreme court observed that such notions vary from country to country depending on their moral standard. but even within the same country, like india as you cross a few hundred kilometers, morality changes at varying lengths. this makes it very difficult to straight jacket these concepts. (ii) obscenity the definition of obscenity has been given by the supreme court as the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive 23 . 21 the indian penal code, 1860, section 292 – 294 makes the sale, letting to hire, distribution, public exhibition, circulation, import, export and advertisement of obscene material an offence punishable with imprisonment and fine. the dramatic performances act, 1876, preamble section 3 (c): section 6 gives the government the power to prohibit public dramatic performances on the ground of obscenity and in case of violation imprisonment and fine follows. the post office act 1898, section 20: prohibits the transmission by post any material on the ground of decency or obscenity. the cinematograph act,1952 –section 5 b prohibits the certification of a film by the censor board for public exhibition of the film or any part of it is against the interest of morality and decency. the young persons (harmful publications), act 1956 section 2 (a) 3-7, prohibits publications which could corrupt a child or young person and invite him to commit crimes of violence or cruelty, etc. a contravention is punishable with imprisonment and fine. the customs act 1962, section 11 (b) empowers the government to prohibit or improve conditions on the import or export of goods in the interest of decency and morality. the indecent representation of women (prohibition), act 1986 section 3-6 prohibits the indecent representation of women through advertisements or other publications, writings, paintings, figures etc and makes the contravention punishable with imprisonment and fine. the cable television networks (regulation), act 1995 – section 5, 6, 16, 17, 19, 20 read with the cable television network rules, 1994 prohibits the telecast of programmes on cable television, which offend decency and morality and on contravention amounts to imprisonment and fine. the information technology act, 2000 section 67 makes the publication and transmission in electronic form of ‘material’ which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it – punishable with imprisonment and fine. 22 chandrakant kalayandas kakodkar v. state of maharashtra (1969) 2 s.c.c. 687. 23 ranjit d. udeshi v. state of maharashtra ( lady chatterley’s lover) a.i.r. 1965 s.c .881. at7. p. 885. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 108 distinction between obscenity and indecency is that while everything obscene is indecent, everything indecent is not obscene. obscenity is quiet repulsive and provocative. vulgarity is another aspect of it. in samaresh bose v. amal mitra 24 the supreme court held that a vulgar writing is not necessarily obscene. vulgarity arouses a feeling of disgust, revulsion and also boredom but does not have the effect of corrupting the morals of any reader, whereas obscenity has the tendency to corrupt those whose minds are open to such influences. in lady chatterley’s lover 25 , the supreme court stated that ‘sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. if the rigid test of treating with sex as the minimum ingredient were accepted, then hardly any writer of fiction today would escape the fate lawrence had in his days. similarly in bobby art international v. ompal singh hoon 26 , where a member of the gujjar community filed a petition seeking to restrain the exhibition of the film ‘bandit queen’ on the ground that it was a slur on the womanhood in india and that the rape scene in the film was suggestive of the moral depravity of the gujjar community. here the supreme court drew distinction between nudity amounting to obscenity and nudity which does not amount to obscenity. the court stated that frontal nudity which the petitioner contended amounted to indecency within article 19(2) and section 5-b of the cinematograph act was not to arouse prurient feelings but revulsion for the perpetrators. thus the court rejected the petitioner’s contention. all sex or sex connected matters are therefore not obscenity amounting to indecency. in k.a. abbas v. union of india 27 , the supreme court observed that it was wrong to classify sex as essentially obscene or even indecent or immoral. the court criticized the failure of parliament and the central government to separate the artistic and socially valuable from the obscene and indecent. it said that the law showed more concern for the depraved rather than the ordinary moral man. in r. v. hecklin 28 , it was laid down that the effect of a publication on the most vulnerable members of the society is the determining factor and whether they were likely to read it or not is immaterial. even if literary merit was there, the defense was not available. although, the hecklin ‘s test was overruled in england by the enactment of the obscene publications act 1959, 29 in india the supreme court of india adopted the 24 samaresh bose v. amal mitra (1985) 4 s.c.c. 289. p. 318. 25 ranjit d. udishi v. state of maharashtra (lady chatterley’s lover) a.i.r. 1965 s.c. 881 pp. 887-88. 26 bobby art international v om pal singh hoon (1996) 4 s.c.c. 1. 27 k.a. abbas v. union of india (1970) 2 s.c.c. 780 pp. 802, 803. 28 r. v. hecklin (1868) l.r. 3 q.b. 360. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 109 hecklin’s test in ranjit d. udeshi v. state of maharashtra 30 . this case was concerning the conviction of a bookseller and his partners for being in possession of a book containing ‘obscene’ material. lawrence’s’ lady chatterley’s lover was the book in question. the court relied on hecklin’s test and interpreted the word ‘obscene’ to mean that which is ‘offensive to modesty or decency; lewd, filthy and repulsive’ and held that regard should be had to our community mores and standards. hecklin’s test was later replaced by the likely readers test recognized under section 292 (1) of the indian penal code 1860 31 . here the question was whether it was possible that those who are likely to read it may get access to it. the test was based on the ‘target audience’. thus in chandrakant kalyandas kakodkar v. state of maharashtra 32 , the supreme court laid this new test. it stated that ‘it is duty of the court to consider the article, story or book by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall; and in doing so the influences of the book on the social morality of our contemporary society cannot be overlooked’. 33 similarly, in samaresh bose 34 the supreme court held that while judging whether there is obscenity the judge should place himself in the position of a reader of every group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers. privacy under article 21 article 21 of the indian constitution clearly gives protection to life and personal liberty. in this perspective, though in different factual base, the supreme court for the first time recognized the ‘right to privacy’. it was in kharak singh v. state of u.p. 35 , that majority of the bench struck down domiciliary visits as being unconstitutional. though they were yet unreceptive to the idea of privacy, the minority view by justice subha rao held that article 21’s concept of liberty included privacy. 36 he stated: 29 the obscene publications act 1959, section 1states if the entire article ‘is if taken as a whole , such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it .’ 30 ranjit d. udeshi v. state of maharashtra a.i.r. 1956 s.c. 881. 31 section 292(1) of indian penal code, 1860-for the purposes of subsection (2) a book , pamphlet ,paper , writing , drawing , painting , representation, figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or ( where it comprises two or more distinct terms) persons who are likely , having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it. 32 chandrakant kalyandas kakodkar v. state of maharashtra (1969) 2 s.c.c. 687. 33 ibid. 34 samaresh bose v. amal mitra (1985) 4 s.c.c. 289. 35 kharak singh v. state of u. p. and others 1964 s.c.r. (1) 332. 36 id at p. 359. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 110 ‘it is true that our constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. in the last resort, a person’s house, where he lives with his family, is his ‘castle’. it is his rampant against encroachment on his personal liberty.’ 37 later the supreme court continued to elaborate on this issue of privacy. in a series of cases concerning journalist’s seeking permission from the court to interview and photograph prisoners, the court held that the press had no absolute right to interview or photograph a prisoner unless he consented to it. though right to privacy was not the question, the court impliedly acknowledged the right to privacy. in r. rajagopal v. state of t.n. 38 , which is the watershed in the field of privacy, the supreme court discussed the right to privacy in the reference to media. it was concerning the right of the publisher of a magazine to publish the autobiography of ‘autoshanker’ who was a condemned prisoner. the state contended that it exposed same sensational links between the police authorities and the criminal, so it was likely to amount to defamation and therefore should be restrained. it was in this context that privacy came up. the supreme court held that the press had every right to publish the autobiography of autoshanker to the extent, as it appeared from the public records, without any permission. in case the publication went beyond the public record and published his life story, then it would amount to an invasion of his right to privacy. here the court regarded privacy in two aspects – firstly as a tortuous liability, which gives an action for damages for invasion of privacy. secondly – ‘a right to be left alone’ implicitly read into the right to life and liberty in article 21. in another similar case regarding khushwant singh’s book ‘truth, love and a little malice’, the 39 then union minister for animal welfare, ms. maneka gandhi, gave a petition in the high court stating that certain contents of his book, even if true, violated her right to privacy. the high court held that ‘well established principles’ weigh in favor of the right of publication and there was no question of any irreparable loss or injury since respondent herself has also claimed damages which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per law. in an earlier case though in london 40 , ms maneka gandhi had won a libel suit against british writer katharine frank and her publishers, who had written indira gandhi’s biography. she won an apology and damages along with deletion from the book of the 37 ibid. 38 r. rajagopal v. state of t.n. (1994) 6 s.c.c. 632. 39 the times of india, nov 10, 2001, p. 7. khushwant singh and anr .v. maneka gandhi a.i.r.2002 delhi58. 40 the times of india, november 10, 2001 p. 7. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 111 offending passage referring to sanjay and maneka gandhi’s alleged involvement in the cover-up of a murder in 1976. in india this case failed as india had no law to protect the privacy and family of a person. in kaleidoscope (india) p ltd. v. phoolan devi 41 , where phoolan devi, one of india’s most dreaded dacoit at one time, sought an injunction to restrain the exhibition of the controversial biographical film “bandit queen” in india and abroad. the court stated that the film infringed her right to privacy. though she was a public figure, whose private life was exposed to the press and though she had assigned her copyright in her writings to the film producers, still private matters relating to rape or the alleged murders committed by her could not be commercially exploited as news items or as matters of public interest. but in bobby art international v. om pal singh hoon 42 when the supreme court was confronted with the contention that bandit queen was a slur on the womanhood of india, the court rejected the petitioner‘s contention that the frontal nudity was indecent within article 19(2) and section 5-b of the cinematograph act 1952. the object of the scene, the court said was to bring revulsion for the perpetrators, so there is no indecency in the scene. here the result of the decision was that even rape scenes can be shown, as public interest outweighs privacy in india. right to privacy was read into section 5(2) of the telegraph act, 1885, by the supreme court in people’s union for civil liberties v. union of india 43 which allowed interception of messages in cases of public emergency or in the interest of public safety. the court held that the right to privacy included the right to hold a telephone conversation in the privacy of ones’ home or office and that telephone tapping infringed this right to privacy. the government had failed to establish proper procedure under section 7(2)(b) of the act to ensure procedural safeguards. tort – protection of privacy following the common law system of adjudication india has adopted the principle of precedent system of adjudication. in this context, the courts in india have recognized the tort law as a tool for preserving the individual’s honor and esteem. the main offence prohibited by common law is defamation. every person has the right to be respected. reputation is an integral aspect of the dignity of an individual. as stated in state of bihar v. lal krishna advani 44 , right to reputation is a facet of the right to life. where any authority, in discharge of its duties traverses into the realm of personal reputation, it must provide a chance to the person concerned to have a say in the matter. 41 kaleidoscope (india) (p) ltd v. phoolan devi a.i.r. 1995 del . 316. 42 bobby art international v. om pal singh hoon (1996) 4 s.c.c.1. 43 people’s union for civil liberties v. union of india (1997) 1 s.c.c. 301. 44 state of bihar v lal krishna advani (2003) 8 s.c.c. 361 privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 112 indian courts have come to give protection to reputation but at the same time they have defended the press also. where the publisher, when he published the news item did not know of the existence of the plaintiff and later had published a correction in his paper, the court held he was not liable for defamation. 45 this would not have been the course of action in uk. such a case would come under the defamation act 1996 46 and now it would come under the human rights act 1998 47 in uk. in uk, for a similar error would cost the press heavily in terms of money despite giving apology in the next issue. that would have a deterrent effect. 48 reference to the plaintiff defamation requires that the plaintiff should be identified by name or description or position or photograph or by anything which would enable the reader or viewer to know or recognize him, which would consequently cause defamation. even if the libel statements are not made directly against a person but he is aggrieved by them, then he has the right to maintain a complaint 49 . in john thomas v dr. k. jagdeesan 50 , it was held that the words ‘by some person aggrieved’ indicates that the complainant need not be the defamed person himself. here therefore it was held that the director of an organization against which defamatory statements are made could be the aggrieved person. in g. narasimhan v. t.v. chokkappa 51 it was held that if a defined group is defamed, then each member of that group can file a complaint, even if it does not specifically mention his name. 45 t.v ramasabha v. a.m. ahmad mohideen a.i.r. 1972 mad. 398. 46 the defamation act 1996, section 2(4) an offer to make amends under the section is an offer(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party.(b)to publish the correction and apology in a manner that is reasonable and practicable in the circumstances and (c)to pay to the aggrieved party such compensation (if any) and such costs , as may be agreed or determined to be payable. 47 human rights act 1998object –‘an act to give further effect to rights and freedoms guaranteed under the european convention on human rights.’ 48 hulton v. jones. [1910]a.c.20artemus jones described as a church warden, accused of living with a mistress in france. it was a fictional figure, but court awarded the person of that name damages. cassidy v. daily mirror newspapers ltd. [1929]2 k .b.331-paper published photographs of the plaintiff ‘s husband with an unnamed lady, announcing their engagement , which was not so. the paper had to give damages. 49 criminal procedure code (1973), section 199no court shall take cognizance of an offence under chapter xxi of the indian penal code except on a complaint made by some person aggrieved by the offence. chapter xxi of the indian penal code 1860 deals with defamation, having sections 499502. 50 john thomas v. dr. k. jagadeesan (2001) 6 s.c.c. 30. 51 g. narasimhan v. t.v. chokkappa (1972) 2 s.c.c. 680. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 113 published or broadcasted by the defendant the law of defamation comes into operation only when the statement is published to another person or persons other than the persons defamed. where copies of such statement are sent to others it amounts to defamation. it is enough if it is told to just one person. in mahendar ram v. harnandan prasad 52 , the defendant had sent a registered notice to the plaintiff containing defamatory allegations against him. it was written in urdu with which the plaintiff was not conversant. so he got another person to read it in the presence of some other persons. in this case, the court does not take it as publication because there was no evidence to show that the defendant knew that the plaintiff did not know the urdu script. in in re. s.k. sundaram 53 , where an advocate sent a telegram to the then chief justice of india, containing contemptuous and defamatory statements against the then chief justice, it was held that sending a telegram amounts to publication since both before and after transmission the message is read by the telegraphic staff. if it was sent in a letter form then it will not amount to defamation. truth as defense in all cases of defamation truth cannot be taken as a defense. it is a defense in case of civil action for libel or slander. in case of criminal prosecutions under indian penal code, this defense of truth has not been recognized. 54 it has to be proved that the publication was made in public faith and for the public good 55 .in sewakram sobhani v. r.k.karanjia, 56 a magazine had published a report that a female detainee in the bhopal central jail had become pregnant through the appellant, a politician. this news report had been made from a government enquiry report. the court held public good as a defense under the ninth exception to section 499 of the indian penal code, 1860. the justification was that the prison being a public institution should be disciplined properly. and this news was based on reliable sources in good faith for public good. 52 mahendar ram v. harnandan prasad a.i.r .1958 pat. 445. 53 in re. s.k. sundaram (2001) .2 s.c.c .171. 54 chapter xxi: defamationsection 499: whoever , by words either spoken or intended to be read, or by signs or by visible representations, make or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person […] ninth exception – imputation made in good faith by person for protection of his or other’s interests-it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, of any other person or for the public good. 55 sewakram sobhani v. r.k.karanjia (1981) 3 s.c.c.208. the supreme court held that the ninth exception of section 499 of indian penal code 1860 needs that the imputation must be shown to have been made in (i) in good faith and (2) for the protection of the person making it or of any other person or for the public good. 56 ibid. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 114 a defamatory statement should be genuine so as to come under the defense of justification by truth. mere belief that it was thought to be genuine is not enough. it must be proved to be true and genuine. in case of truth as defense, the defendant has to establish it. all defamatory statements are presumed to be false and it is for the defendant to rebut this presumption 57 . fair comment just like justification by truth, the defense of fair comment is also a complete defense against an action for defamation. these defenses are needed for media; otherwise its working can be affected, which is to bring forth opinion, fair comment and criticism. to get protection under the ninth exception to section 499 of the indian penal code 1860, both public good and good faith have to be established 58 . even the contempt of court proceedings after the contempt of court (amendment) act, 2006, truth is maintained as a defense to contempt action 59 . sub judice reporting when a case is being conducted in the court, it is presumed that court will do fair justice in the matter. nothing should interfere in that especially the media. media should not conduct a parallel trial of sub judice matters. a judge shall decide the matter on the merits of the case and objectively. this is not possible when there is so much discussion in the matter through the media, as it creates a clouded atmosphere disturbing the serenity. in saibal kumar v. b.k. sen 60 the supreme court held that it is improper for a newspaper to conduct parallel investigation into a crime and publish its results. trial by newspapers must be prevented when trial is in progress in a tribunal of the country. the reason being, that this interferes with the cause of justice. reporting is different from investigation of the same matter. reporting is the function of the media to give the public, knowledge concerning the administration of justice that is taking place. formation and expression of opinion is needed to safeguard against judicial error. beyond reporting of cases, moving into conducting the investigation alongside the governmental system is overstepping by the media. various opinions expressed in the media reports can bring in prejudice to the mind of the judges. 57 mitha rustomji v. nusservanji nowroji, a.i.r. 1941 born. 278. 58 harbajan singh v. state of punjab a.i.r. 1966 s.c. 97. 59 the contempt of courts (amendment) act, 2006, section 2, substitutes section 13 of the contempt of courts act, 1971. 60 saibal kumar v. b.k. sen a.i.r. 1961 s .c 633. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 115 in saroj iyer v. maharashtra medical (council) of indian medicine 61 , the court held that as a part of the open justice system, the journalists have a fundamental right to attend proceedings in court under article 19(1)(a) of the constitution. they have a right to publish a faithful report of the proceedings in the court. so this fundamental right of the press is along with the duty to publish or broadcast things witnessed by them in the courts and not to be couple and mix it with their investigation report. vulnerable matters an ordinary citizen needs to know subjects and events of public interest. this right does not however go to the extent of knowing the name of the rape victim or family problem of a public figure. these informations do not fall within the category of newsworthiness of the news. it was stated in state of punjab v. gurmit singh 62 , that the identity of rape victims should be protected not only to save them from public humiliation but also to get the best available evidence which the victim may not be in a position to provide if she is in public. in people’s union for civil liberties v. union of india 63 , the supreme court further upheld the validity of section 30 of the prevention of terrorism act, 2002, regarding holding of in-camera proceedings for the protection of a witness whose life is in danger. in these cases, the identity and address of the witness is kept secret. there are so many enactments providing in-camera procedures and protection of the identity and other details of persons associated with the case 64 . so it is implicit in the indian law that private and confidential matters in certain cases should be given utmost protection. but this is not enough, it has to put in practice by the courts by strict gagging orders, as is done in uk where in baby p abuse case, 65 the high court released the names of the couple who 61 saroj iyer v. maharashtra medical (council) of indian medicine a.i.r. 2002 bom. 97. 62 state of punjab v. gurmit singh, (1976) 2 s .c .c. 384, pp. 404-05. 63 people’s union for civil liberties v. union of india (2004) 9 s .c .c. 580. 64 the indian penal code, section 228-aprohibits publication of the name of a victim of a sexual offence. fair comment is allowed. indian divorce act 1869, section 53 – proceedings under the act may be heard behind closed doors in certain circumstances. the special marriages act 1954, section 33 – in-camera proceedingsif either party desires or court decides the hindu marriage act 1955, section 22 – in-camera proceedings allowed if either party so desires or court decides the official secrets act 1923, section 14 – empowers the court to exclude the public from proceedings if prejudicial to the safety of the state, subject to section 7. the contempt of courts act 1971, section 4prohibits publication of proceedings in-camera in certain cases. the prevention of terrorism act 2002, section 30 (repealed from 21 st sept 04) – permitted the holding of proceedings in-camera where the life of the witness was in danger. the children act 1960 , section 36–prohibition of names or photograph or address or school or any identity of children in any case be published, unless the authority feels it is in the interest of the child. the juvenile justice (care and protection of children) act 2000, section 21prohibition of publication of name or photograph or address or school or any identity of a juvenile in conflict in any case in media or visual media unless the authority feels it is in the interest of the child. 65 ‘couple named in baby p abuse case’ agence france –presse, london, retrieved 20/08/2009. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 116 abused the toddler and in the process killed the baby, only after the case was decided and parties put in safe places. indian courts have to use their powers and not wait for the victim to ask for these protections. contempt of court contempt of court happens not just when judges are criticized but also when matters which are sub judice are discussed and criticized in the press. this results in lowering the role of the judiciary in the administration of justice. when the issue is before the court, it is considered the duty of the media to allow the course of law to take place. they can report the matter in court in a fair manner and not critically. they should wait for the final outcome of the case. this is the object behind the reasoning given by the court in rajendra sail v. m.p. high court bar association 66 . the supreme court warned the media against sensationalizing of the issues and stressed that the press needed a strong internal system of self regulation. it said that the reach of the media is very large and large numbers of people believe it’s reporting to be true. 67 this freedom of the press should be exercised in the interest of the public good. court also stated that the press should have an efficient mechanism to scrutinize the news reports pertaining to such institutions such as judiciary, which because of the nature of their office cannot reply to publications. 68 thus the freedom of the press should be used by them cautiously. normally, truth and good faith have been recognized as defenses to charges of contempt. now with the amendment of contempt of courts act 1971 69 , truth has been made a legal defense to a charge of contempt. a trial by press, electronic media or public agitation is an antithesis to the rule of law. it can only lead to miscarriage of justice 70 . therefore, it may be contempt to publish an interview with the accused or a potential witness 71 because there is always a likelihood that the trial is prejudiced by these publications or broadcasting. if the media in the process of reporting adds anything in excess to the actual proceedings in the court, it no doubt amounts to interference with justice. in uk, where courts are convinced of the fact that media has influenced the jury, then the case is taken away from that court and posted to a court far away from that area. in india, it is very difficult to prove that the judge has been influenced by the media talk. but there is no doubt that no person even if it is the judge can 66 rajendra sail v. m.p. high court bar association (2005) 6 s.c.c. 109. para 31 at p. 125. 67 ibid. 68 ibid. 69 the contempt of courts (amendment) act 2006 section 2 substituting section 13 of the contempt of courts act, 1971. 70 state of maharashtra v. rajendra jawanmal gandhi, (1997) s.c.c. 386. 71 r.v. savundranayagan (1968) 3 all er 439n. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 117 stop himself from keeping track of the news of the day. there is every possibility of not only the judges but also the witnesses getting influenced. the intention of the reporter to interfere with the administration of justice or not is immaterial in determining whether it constitutes contempt of court 72 . the possibility of influence has to be considered and not the intention of the journalist. the law commission reports the forty second law commission examined the various aspects of right to privacy under chapter 23 of its 42 nd report and recommended for insertion of a new chapter to be called “offences against privacy” to substitute the existing chapter xix making unauthorized photography and use of artificial listening or recording apparatus and publishing such information listened or recorded as offences 73 . the law commission in its one hundredth and fifty sixth report stated that right to privacy is a vast subject and its scope has been widened considerably under article 21 of the constitution by the supreme court under its various decisions 74 . the law commission admitted that on studying the matter of privacy as extended under article 21 of the constitution and also in the various reports of foreign law commissions, it would recommend that these offences cannot appropriately be incorporated in the ipc. therefore it stated that the recommendation of its 42 nd report to include ‘offence against privacy’ is deleted and that a separate legislation should be there to comprehensively deal with such offences against privacy. 75 in the law commission’s 200 th report 76 justice m. jagannadha rao stated that at present under section 3(2) 77 of the contempt of courts act, 1971 read with the explanation 72 s.k. sundaram: inre, (2001) 2 s.c.c: a.i.r. 2001 s.c. 2374. 73 law commission of india forty second report on the indian penal code ,1971, chapter 23, pp.336-340. 74 law commission of india one hundred and fifty sixth report on the indian penal code vol.1 august, 1997, p.340. 75 id at p. 341. 76 200 th report on trial by media; free speech and fair trial under criminal procedure code, 1973, august 31 st 2006 – justice m. jagannadha rao http://law commission of india.nic.in/reports/rep200.pdf. p. 223. , retrieved on 4.6.09. 77 the contempt of courts act 1971section 3innocent publication and distribution of matter not contempt. (1) a person shall not be guilty of contempt of court on the ground that he has published (whether by words spoken or written or by signs or by visible representations or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending. (2)notwithstanding anything to the contrary contained in this act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court. (3)a person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the http://law/ privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 118 there under, gives full immunity to publications even if they prejudicially interfere with the course of justice in a criminal case, if by the date of publication, a charge sheet, or challan is not filed or if summons or warrant are not issued. 78 such publications would be contempt only if a criminal proceeding is pending. 79 the dispute regarding when the case is said to be ‘pending’ had caused a lot of controversy. the report stated that indian supreme court holds publication, prejudicial after ‘arrest’ as criminal contempt. it was settled in a.k. gopalan 80 wherein the supreme court stated that it is from the point of arrest that contempt arises. this report also agrees with this decision. india is signatory to the madrid principles on the relationship between the media and judicial independence1994 81 , wherein the basic principle stated was that though it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, it should be done without violating the principle of presumption of innocence. therefore the yardstick is whether media reporting has violated the basic principle that an accused is presumed to be innocent till pronounced guilty by the court. recent trends of trial by media recently the press, especially the electronic media has been very enthusiastic to grab and report it even before the police or other channels get to know about it. this investigative journalism is good but at the same time it is going out of hand. there is no way to regulate it or stop it. though we have the press council of india, which was established around twenty two years before, the electronic media will not come under its regime. the pci entertains more than 10,000 complaints a year, has no teeth and the purpose is defeated as it evokes no fear or sanction. simply an apology is demanded from the press, if found guilty. these types of liberal approaches are not going to remedy the harm caused by press reporting. more stringent measures are to be adopted to curb the malady though self-regulation can operate as a useful and viable tool. time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid […] explanation: for the purposes of this section , a judicial proceeding is said to be pending –[…] (b) in the case of a criminal proceeding under the code of criminal procedure or any other law(i) where it relates to the commission of an offence, when the charge sheet or challan is filled, or when the court issues summons or warrant, as the case maybe, against the accused and (ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates […] 78 supra n. 71. 79 ibid. 80 a.k. gopalan v. noodeen 1969 (2 )s. c. c.734. 81 madrid principles on the relationship between the media and judicial independence – convened by the international commission of jurists in madrid from 18-20jan.1994. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 119 new government policy the government in its zeal to bring liberalization in media has allowed foreign direct investment into it. the policy brought in 2003, permits unto 26% in print media, while in broadcasting, it is allowed unto 100% 82 . this is in a situation, where there is no law to control the tyranny of electronic media. with the doors open for the foreign media to invade india with their ideas and experiment with the indian youth, the government is taking no urgent steps to bring in a regulation to control the widespread electronic media. conclusion a study of the development of privacy traces back to nihal chand v. bhagwan dei 83 in 1935, where the high court recognized the independent existence of privacy from the customs and traditions of india. india even before independence became a member of un and was signatory to the udhr 1948. the udhr was almost fully incorporated into the indian constitution. one of the exceptions to it was the giving no recognition to the concept of privacy. udhr gave privacy a foremost position in article 12, while freedom of speech and expression found place only in article 19. article 19 was subject to conditions such as reputation, national security, and public order and of morals. in the indian constitution, the restrictions imposed on freedom of speech and expression in article 19(2) was on the lines of libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the state. this clause was later amended by the 1st amendment act of 1951, and a new clause was inserted instead of the above clause. the new clause brought reasonable restrictions on the lines of security of state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. this took away further, the grounds of restrictions in the earlier unamended clause i.e. libel and slander. freedom of press was included in this right to speech and expression by the apex court in romesh thapper v. state of madras. 84 here the court held that this freedom includes right to propagate ideas including the right to circulate. all the above factors further gave impetus to press but at the same time the right of an individual to plead right to privacy against undue interference by press was completely denied as this right to privacy was not given an independent status as a fundamental right on the same footing as of freedom of press in the constitution . the framers of the constitution failed to imbibe the full spirit of udhr 1948 by neglecting to recognize the right to privacy as a fundamental right. 82 www. dailymail.co.uk. a government appointed panel advises indian government to increase fdi in print media from 26% to 49% retrieved on 07/02/13. 83 nihal chand v. bhagwan dei a.i.r. 1935 all.1002. 84 romesh thappar v. state of madras 1950 s.c.r. 594. privacy as a human right and media trial in india the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 120 it was in kharak singh, 85 that the apex court had the opportunity to discuss privacy for the first time, wherein it struck down domiciliary visits on an accused under article 21 of the constitution. but it was only through the minority view of justice subha rao, that privacy found a place in article 21 of the constitution. this was due to lack of an article on privacy. article 21 of the indian constitution protects life and personal liberty which is on the lines of article 3 of the udhr. therefore article 21 is not the solution to the problem faced in the matter of privacy protection. article 21 is only an interim relief till legislative weapons are put in action to bring in a parallel article on the lines with article 12 of the udhr in the indian constitution to protect privacy. due to lack of constitutional and legislative measures to protect privacy, the victims of press abuse had to the take the help of tort law. tort law did not refer to privacy but only other offences such as libel, slander, defamation, morality and decency. these different offences form part of the term ‘privacy’ but individually these offences could never fulfill the need of protection of privacy faced by individuals. even indian penal code allowed punishment or penalty for the above offences but not for privacy. privacy as a term never came into the minds of legislators. the courts also gave decisions on the lines of the various offences mentioned above. the other grounds left for the victims were only article 19(2) and article 21 of the constitution. there was no legislative effort to codify and protect privacy till date neither in the constitution nor in any legislation. the victims had to always depend on the court’s discretion and interpretation of privacy, when the question of infringement of privacy was considered. this has been a loophole since the time of independence. it is therefore recommended that the constitution should be amended to include this right to privacy as the first step. once the grundnorm is amended, the position of privacy will be legally at par with international standards. then is the need to enact a privacy act. thirdly the need to amend the contempt of court act 1971, to give the courts, specific powers apart from the general powers to issue gagging orders and other orders to protect an accused from media intrusion which has the effect of tampering with evidences and witnesses and causing interference in administration of justice. also as stated in rajendra sail’s case 86 , we need a strong press council in india. it should be a strong regulatory authority with representatives of legal, social, common man and press. presently the press council is dominated by the different newspapers. in parshuram babaram sawant v. times global broadcasting co. ltd. 87 , retd. justice p.b. sawant‘s photograph was flashed as justice p.k. samantha, retd. justice of calcutta high court, who was alleged to be involved in the famous provident fund scam of 2008. it gave a false impression among viewers that the plaintiff was involved in the scam. though the said channel stopped publishing the photograph, when the mistake was brought 85 kharak singh v. state of u.p. and others 1964 s.c.r.(i) 332. 86 rajendra sail v. m.p. high court bar association (2005) 6 s.c.c. 109. p.125. 87 special civil suit no. 1984/2008 in pune trial court. gifty oommen the age of human rights journal, 3 (december 2014) pp. 102-121 issn: 2340-9592 121 to their notice, no corrective or remedial steps to undo the damage were taken by the channel on their own. the plaintiff by his letter dated 15/9/2008 called the defendant to apologize publicly with damages of rs 50 crores. by its reply the defendant apologized but no mention of damages was there. it was a belated action hence plaintiff demanded rs 100 crores. the court held that the defendant was entitled to pay rs 100 crores to the plaintiff. the bombay high court ordered the times to deposit 20 crores in cash and 80 crores in bank guarantee, before taking up its appeal against the pune trial court in the defamation case. 88 this was upheld by the supreme court. 89 this was very good move by the court. to conclude with, the former chief information commissioner of india, wajahat habibullah 90 had also demanded a law on privacy complimentary to the law on right to information. he had stated that while all information regarding the government should have public accountability, there should be a law to respect privacy also to run parallel to it 91 . therefore the need for the right of privacy is inevitable. 88 ‘s.c. asks times now to deposit rs 100 crores before h.c.takes up its appeal in defamation case’, times of india.indiatimes .com/india dated november 15, 2011. retrieved on 27/02/2013. 89 ibid. 90 kp saikiran ‘clc for law on privacy’ january 31, 2009, the new indian express p.11. 91 ibid. the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 13 medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes andrea di landro1 abstract: the aim of the paper is, firstly, to try to understand the reasons for the different approaches to medical malpractice in two legal systems taken as models: the u.s., where professional negligence is almost exclusively subject of tort law; italy, where criminal law instruments are instead widely used. the different extent of criminal responsibility for negligence and omission seems connectable to different political and cultural models: individualistic liberalism, on the one hand, solidarist statism and communitarianism, on the other hand; in juridical terms, to the ideal contrast between the reactive state and the active state; to the different approach to the relationship between subject and body, dominical-individual versus collectivistsocial; with a tendential "privatization" of the health-good, in the us model, and a "socialization" of the good-health itself, in the italian model. secondly, the paper tries, in a comparative perspective, to evaluate these different approaches, in terms of access to justice, paths and outcomes of the two models. the article attempts to highlight the strengths and the weaknesses of the contingent-fee system in the u.s. tort arena, and of the criminal justice system as "free legal aid" in italy: a balanced solution should also allow victims hindered by the costs and the length of civil actions the possibility of using these latter form of protection, avoiding that criminal justice is exploited for compensatory purposes. indeed, tort law more easily can meet compensatory claims, due to the lower probative standard required, the preponderance of evidence, rather than the beyond any reasonable doubt standard, required in criminal law. also in terms of outcomes, the main problems arising in the two systems need to be tackled: the problem of few persons compensated, allowing a greater number of injured parties to access to justice and obtain fair compensation; the problem of symbolic criminal convictions (observed in the italian experience), avoiding the automatic use of suspended penalties and monetary penalties as substitute of penalties weighing on professional practice and freedom, since these automatic mechanisms limit the preventive effectiveness of the criminal sanction and run the risk of creating discrimination on a census basis. keywords: medical malpractice, negligence, omission, access to justice, standard of proof. summary: i. introduction. medical malpractice in u.s. law. no criminal responsibility for personal injury negligence or involuntary manslaughter due to minor (not gross) negligence. from practical problems to political-criminal problems… ii. (continued)…the distribution of omissive and negligent crimes, between individualistic liberalism, solidaristic statism and communitarianism; between the reactive state and the active state; between the individual model of property and the collective/communitarian model of inalienability; between “privatized” and “socialised” healthcare. iii. “access to justice”, paths and outcomes: contingent fee in tort area and criminal justice as “free legal aid”; “preponderance of evidence” and “beyond reasonable doubt”; compensation for a few people and symbolic criminal convictions. 1 associate professor of criminal law, university of central sicily “kore”, italy (andreadilandro@gmail.com). andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 14 i. introduction. medical malpractice in u.s. law. no criminal responsibility for personal injury negligence or involuntary manslaughter due to minor (not gross) negligence. from practical problems to political-criminal problems… in anglo-american law, medical conducts with inauspicious outcomes are subject matter mainly in the arena of civil law (malpractice tort law). in the arena of negligent liability, an important comparative difference is that in north-american criminal law, battery is generally punished only if commited with intent (so-called specific intent), and only exceptionally, in some jurisdictions, if due to negligence2. on the contrary, in italian criminal law we find the crime of personal injury negligence (punishable with imprisonment of up to three months, or with a fine up to 309 euro: articles 590 590 sexies of the italian criminal code), in addition to the crime of negligent homicide (punishable ex officio, as is standard in the italian procedural system, with imprisonment from six months to five years: art. 589 590 sexies of the italian criminal code). in common law, negligence has historically been approached autonomously with respect to different areas of the legal system. in criminal proceedings only gross negligence is relevant; in civil proceedings minor negligence is evaluated, in other words, unintentional fault. in fact, normally, negligence (also called carelessness) by health professionals and the related causal problems, especially about the omissive actus reus, are subject matter of civil law3. therefore, in the u.s., criminal responsibility of the doctor is traditionally more limited than civil responsibility. in the context of criminal law, the first function of mental states (mens rea), with particular reference to negligence, is indeed to distinguish criminal and non-criminal conduct4. in u.s. law, unlike english law, great efforts have been undertaken to define gross negligence (criminal negligence), especially in the model penal code (m.p.c.), sec. § 2.02, lett. d): «a person acts negligently with respect to the material element of a crime when he/she should be aware of the substantial and unjustified risk related to his / her behavior. the risk must be of such a nature and entity that its failure to perceive by the agent subject, given the nature and purpose of his conduct, as well as the circumstances 2 v. saunders v. state, 208 tennessee 347, 345 s.w. 2d 899 (tenn.1961), in loewy, criminal law, eagan, minnesota, 2003, 67. 3 on the relationship between criminal and civil negligence, in uk law, see herring & palser, the duty of care in gross negligence manslaughter, in crim. l. rev., 2007, p. 24. 4 bloch-mcmunigal, criminal law: a contemporary approach. cases, statutes, and problems, new york, 2005, p. 210. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 15 known to him, involves a serious deviation from the standards of diligence that a reasonable person would observe in the same circumstances». it must be said that this autonomous, complex definition of criminal negligence, principally based on two elements "substantial and unjustified risk of which the subject should be aware" and the "lack of perception that implies a serious deviation from the standards of diligence" ("failure to perceive” that “involves a serious deviation from the standard of care"), does not receive unanimous approval by the commentators 5 . in criminal proceedings, the fact that mental state is essentially a question of degree usually causes problems, from both a theoretical and a practical point of view6. in various u.s. jurisdictions, in order to put into effect and apply the model penal code in case law, several epithets are used to describe the amount of negligence necessary to integrate negligent homicide. the most typical are: «criminal negligence», «gross negligence» and «culpable negligence». "about the only certainty of meaning one can ascribe to these epiteths to quote a current u.s. manual7 is that they require more than ordinary negligence, i. e., more than would be required in a civil case. undesirable as this lack of certainty may be, it is probably unavoidable. nobody has yet devised a formula which more precisely describes the degree of negligence necessary for involuntary manslaughter". to explain the “something extra” necessary for criminal negligence and to avoid a reprehensible vicious circle of evaluation tests, focus is usually placed on the «moral defect» that «can properly be imputed to instances where the defendant acts out of insensitivity to the interests of other people, and not merely out of an intellectual failure to grasp them»8. a notion of criminal negligence impregnated, therefore, by subjectivity, that contains a basis of morality9. it could also be defined as an intuitive conception of the mental state, that must be "felt" (by the jury), rather than analyzed. to the italian doctrine, which has a long tradition of commitment to the mythvalue of legality, this idea might seem contrary to the defense of civil rights: yet in the u.s. this is considered the best indication upon which to trace the boundary of criminal relevance, of negligence and other notions. 5 in a critical sense, see fletcher, dogmas of the model penal code, in 2 buffalo criminal law review, 3 (1998); id, basic concepts of criminal law, oxford, 1997, chap. 8; simons, dimensions of negligence in criminal and tort law, 3 theoretical inq. l., 305 (2002); edgar, mens rea, in encyclopedia of crime and justice, 1037 (1983): "the terms that positively indicate the mens rea, basic, are fictions. the law deals with probative problems related to the mental states through the use of presumptions". 6bloch-mcmunigal, paper cited, p. 211. 7 loewy, criminal law, mn, 2003, 39. 8 comment to model penal code, § 2.02, negligence. 9 husak & singer, of innocence and innocents: the supreme court and mens rea since herbert packer, 2 buffalo criminal law review, 860 (1999). andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 16 in a sense it is the “price” that the anglo-saxon system pays for a concept of negligence exclusive to the criminal system. a concept lacking in certain analytical parameters for establishing the notion, and above all the civil/penal shift, the “something extra” of criminal negligence appears to be resolved intuitively, "self-evident" to the criminal system itself. a system that definitively entrusts laymen to evaluate the criminal relevance of negligence. what is the approach of u.s. law regarding civil negligence? in the second reformulation of us civil law (restatement of torts, second), the basic structure of civil negligence includes minor negligence. civil negligence is defined in plainer terms than criminal negligence: "negligence is conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. it does not include reckless conduct that disregards the interests of others". it is interesting to note how the most recurring question in u.s. law manuals is, in inverted terms, speculation on a question that is increasingly widespread among italian criminal law scholars. italian scholars focus on the question of legitimacy and/or opportunity to adjust restrictive terms regarding the concept of criminal negligence, to eventually cover cases of gross negligence (whether conscious or not). american criminal law scholars, on the contrary, start from the limit of grossness (the already existent de iure), consider whether it is desirable that in different areas of substantive law the concept of mental states becomes uniform, thus arriving to align criminal and civil negligence10. ii. (continued) ... the distribution of omissive and negligent crimes, between individualistic liberalism, solidaristic statism and communitarianism; between the reactive state and the active state; between the individual model of property and the collective/communitarian model of inalienability; between "privatized" and "socialised" healthcare. the role of criminal law in italy cannot be assessed outside of the overall legal, political and cultural context. to quote the spanish scholar silva sanchez «the pretension to harmonize a maximum state and a minimum criminal law constitutes a contradiction in terms. for a single reason: insecurity about the perception of the services [...] directly or indirectly coming from the state leads to the exploitation of criminal law to guarantee (at least so it is claimed) them»11. from a political and cultural point of view, the "maximum state" (to resume the expression of silva sanchez) seems connected, in italy (and perhaps in continental europe in general), to the greater trust traditionally placed in regulatory interventions of the state. the idea is that "institutional public regulation is superior in allocating optimal well-being 10 cfr. bloch-mcmunigal, paper cit., 318. 11 silva sanchez, la expansión del derecho penal aspectos de la política criminal en las sociedades postindustriales, madrid, 2011, in particular chap. 4. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 17 when compared to the "market". in other words, the developement of political-normative regulations produces superior desirable results on well-being than the commitment of the same well-being to uncontrolled forces within civil society"12. given these premises, in states (like italy) where criminal law traditionally carries out such a role, an invitation to prudence seems due. as when it is suggested to decisivly "trim" many branches off a criminal law system that is perceived, almost presumptively, as suffocating and primitive. the objective is to "transplant" concepts, models, ideas and systematic constructions applied by another legal system actualised in a different country13. in other words, a cure worse than the disease, if the much lauded elimination/reduction of some parts of the criminal "penal apparatus", despite its flaws, are not compensated by the introduction of adequate forms of substitutive control. the principle of criminal law as a last resort (extrema ratio), which certainly expresses a noble request, can simultaneously represent a "magic bullet" that easily lends itself to indistinct and uncontrolled use. a principle whose insignia seems obvious to recognise, but that still includes too many unknown "variables". primarily "the difficulty or the impossibility of precisely defining the need for criminal sanctions and the sufficiency of non-criminal alternatives, with respective degrees of effectiveness, given the infeasibility of previous tests, shortcomings, discords and the doubtful value of unestimatable empirical findings"14. beyond the hypercritical attempts to "demolish without reconstructing" and the preconceived defense of existing laws, it must be acknowledged – with f. mantovani that the main challenge of current criminal law seems to be its "crisis of solitude". in the face of various social problems, criminal law is often left not as the last (extrema) resort, but as the sole resort (ratio) in an attempt to "keep the peace"15. this also seems to be the case of medical responsibility. in the abscence of valid and alternative systems of control and socio-cultural counterforces, is it really feasible or desirable that criminal law recedes from a "hard line" defense of life, well-being and personal safety?16 12 sgubbi, il reato come rischio sociale, bologna, 1990, 17. 13 to use an engineering metaphor, a "cogwheel" that spins in a given apparatus of rules could turne out to be not as functional in another one. 14 mantovani, la "perenne crisi" e la "perenne vitalità" della pena. e la "crisi di solitudine" del diritto penale, in studi in onore di giorgio marinucci, milan, 2006, 1181. the author speaks also of "crisis of the crisis", in the sense that "the crisis of the criminal law is accompanied by the crisis of the proposed alternative models to the criminal law itself". 15 id, paper cit., 1202. 16 as mantovani teaches (paper cit.), the modern history of the criminal law consists precisely in a (never outdated) dialectic between legitimization, de-legitimization and re-legitimation: attempt to remove such dialectic contrapositions, from this point of view, represents only a sterile "intellectualism", a "reductionism" that smacks of an idealized "illuminism out of time and space". even fiandaca-musco agree that <<the models of legitimation developed by scholars are influenced [...] by an "idealistic" andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 18 it seems to confirm the need for a comparison between european and u.s. law, not only from a synchronic perspective but also from a diachronic perspective: i.e. taking into account not only the current state of the legal systems, but also their historical evolution and, last but not least, the different factors that influence the current systemic realities, along with their prospects for future evolution. once models, rules, languages and different legal forms are placed in the proper historical-political and cultural dimension, it will perhaps be possible to identify the ideas and inspirations that can be exported from one system to another, as well as the pitfalls to be avoided. while continuing the reconstruction of factors around which the various regulatory systems rotate, it is possible to note how, from a cultural point of view, in anglo-saxon countries the dominant socio-political tradition is liberalism. more than a well-defined school of thought, liberalism is an intellectual and moral attitude whose "founding fathers" are the english philosophers bentham and j.s. mill (the latter a student of the first). liberalism strongly emphasizes the value of individual freedom and only recognizes to the state the task of refraining from interventions that sacrifice or inhibit this freedom 17. to the point that, according to one of the most recent and extreme formulations of liberalism, the only morally legitimate form of a state, as not to be detrimental to individual rights, would be the minimum state. a state which radically limits its own interference into the sphere of the individual (think of nozick, for example, although the liberal school obviously knows more moderate positions such as rawls or berlin). in the u.s., liberalism is typically associated with individualism: a term introduced by tocqueville to indicate, in general, an attitude that promotes the individual with respect to the social whole18. approach, being often based on points of view and concerns that are quite foreign or indifferent to ordinary people. and there is risk that this split is accentuated precisely in an historical contingency such as the one we are experiencing "(perdita di legittimazione del diritto penale?, in riv. it. dir. proc. pen., 1994, 25). 17 matteucci, item liberalismo, in dizionario di politica, directed by bobbio-matteucci-paquino, turin, 1990, 566. from the field of the production and the exchange to that of law, the fundamental principle with which the anglo-american reflections still today confront themselves, also in terms of space attributable to the penalty, is that, classic, of self-protection, formulated by mill in his most famous work, on liberty (1859): for a reconstruction of the anglo-american socio-philosophical and criminal doctrine, in its focus on the concept of "harm to others", see forti, per una discussione sui limiti morali del diritto penale, tra visioni "liberali" e paternalismi giuridici, in studi in onore di giorgio marinucci, eds. dolcini and paliero, vol. i, milan, 2006, 308; francolini, l'harm principle nel diritto angloamericano nella concezione di joel feinberg, in riv. it. dir. proc. pen., 2008, 276; as well as fiandaca-francolini (eds.), sulla legittimazione del diritto penale. culture continentale e anglo-americana a confronto, turin, 2008. 18 the term individualism, if today it is used in the socio-philosophical debate as a “neutral" term from an evaluative point of view, represents a position that, especially at the political level, in europe has been (and still continues to be) commonly criticized as "self-interested, anti-social, anti-solidaristic»: see fabbrini, l'america e i suoi critici. vizi e virtù dell'iperpotenza democratica, bologna, 2005, 135. in general (according to fabbrini, paper cit., 251; bencivenga, le due americhe. perchè amiamo e perché detestiamo gli usa, milan, 2006, 25), american liberalism remains basically a method, which presupposes the recognition of the interests of all classes, sees the market as the privileged location of the individual medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 19 regarding individualism, the comparative law scholar damaška coined the notion of the reactive state, whose "instruments must liberate the spontaneous forces of social self-management. the state knows no notions of interest distinct from social and individual (private) interests. there are no problems typical to the state, only social and individual problems"19. according to damaška, it is natural that, in the anglo-american system, where individual preferences are sovereign, the preferred normative instruments are various types of agreements, contracts and pacts [...] therefore a wide range of suspendable rules characterizes the legal culture of the reactive state: absolute orders and prohibitions are anomalies. [...] the law facilitates and supports the self-regulation of the members of the civil society by creating "negotiating tools" for conventions between the citizens"20. there is clear reference to the "centrality of the contractual method". in the active state, clearly defined as opposite to the reactive state, we see that «the dominant image of the law, absolutely distant from contractual notions, is that of a provisional state [...] unlike the law of the reactive state, whose effort it is to define forms that allow the free pursuit of chosen objectives, the active law is imperative, sometimes even authoritarian: it tells the citizens what to do and how to behave»21. among the duties of the citizen, solidarity in particular which is traditionally relegated to a moral duty in other legal systems (so-called good samaritan law), soars in italy as a principle representing the republican constitution. that is, alongside the recognition of fundamental human rights it is explicitly requested that citizens assume the "fulfillment of mandatory duties of political, economic and social solidarity" (art. 2 of the constitution). in italy, criminal law appoints itself as the primary mediator between the individual moment – the guarantee of personal freedom – and the social moment – the guarantee of substantial equality and / or solidarity. criminal law, as an instrument used as a liberal basis for the protection of inviolable rights and freedoms, therefore also becomes a social instrument for the freedom, and the state as a simple "guarantor" (and competition as a democratic factor preventing the accumulation of power). in the old continent, instead, for "historical" or "geographical" reasons (closed space and limited resources), liberal thought easily transforms into ideology, favorable only to the dominant social classes. hence, the need to contrast liberal thought with a strong "dialectic" element, such as the "collectivistic" (or corporatist, or organicist) idea: the market thus becomes not only "guaranteed", or "regulated" by the state, but "socialised" or "statalized"; and the competition between values and interests, viewed with suspicion, in continental europe makes way for the hierarchical definition of that values and interests. in short: in europe a society that is generally less dynamic is born, yet more egalitarian, a more participated but also more paternalistic democracy: the so called social state (subject to the rule of law), or solidaristic state (which in italy finds its consecration in art. 2, subsection 2, constitution). in european political thought, in any case, the limits of american liberal individualism are highlighted, from left wing movement in the name of social solidarity, from right wing movement in the name of the organic state. 19 damaška, the faces of justice and state authority, new haven, 1986, ed. in italy by il mulino, pag. 136. 20 id, paper cit., 139. 21 id., paper cit., 149 andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 20 protection of collective interests and the implementation of the objectives of the solidaristic state22. in light of the ever-increasing tasks attributed to the state, law is oriented not only in a prohibitive but also promotional sense. particularly in criminal law, it is not only repressive (of prohibitions), but also constrictive (of commands). it is within this broader political and cultural perspective that the traditionally larger quantitative extension of omissive and negligent crimes in continental europe should be framed. to quote the well-known american scholar coffee: "in general, civil law sets a price, while criminal law prohibits"23. if everything has a price, everything can become property of the most powerful, as roxin teaches, warning against the growing temptation to favor a "privatistic and autonomous composition of the conflict". "faced with the withdrawal of the state from the area of injury of significant assets the author writes clearlythere is indeed risk that not the right but the stronger wins, and that legal peace is threatened more by the play of opposed influences, than by the crime itself"24. at this point, a doubt may arise: is the u.s. system, in creating a mostly civil protection regarding negligent offences, therefore less devoted to the fundamental values of life and personal safety? how to interpret the differences from the point of view of comparative law? in reality, with regards to the value of life and personal safety, civil protection does not necessarily mean less protection. it primarily means a different type of 22 about criminal law of freedom, see the model set by mantovani f., diritto penale. parte generale, padua, 1992, 21; compare with forti, paper cit., 331: «more or less latently and consciously, this branch of the system (due to the human bearing of its coercive means) expresses a certain "communitarian" vision, inasmuch as it endorses a conception of the person, however disguised under a patina of values’ neutrality and liberal (indeed) self-restraint. as a matter of fact, punishment is something that evokes the whole, the totality, even of those to whom it is inflicted. a totality that arises from its complexity as social institution". v. damaška, paper cit., 158, 162: "many europeans, looking at england and america through the prism of their experience, were surprised by the relatively modest function performed by the state in the management of social affairs. while the legislators of the continent were continually expanding the tasks of the state [...] it seemed that in england and america, still recently, they relied on a much more important measure, on the private or "voluntary" action for the satisfaction of social needs. the foreigners were surprised by the functioning of this "minimalist statism", and proposed a series of theories to explain the mystery. a theory that has gained widespread acceptance attributes the relatively minor importance of the state in the anglo-saxon countries to the claimed better success of the capitalist market in these countries; the more pervasive and effective the mechanism of the market, it is said, the lower the need for direct intervention by the state; power can be exercised above all in the economic-social sphere, and the social apparatus can often be circumvented". 23 coffee, does “unlawful” mean “criminal”?: reflections on the disappearing tort/crime distinction in american law, 71 b.u.l. rev. 194 (1991). 24 roxin, risarcimento del danno e fini della pena, in riv. it. dir. proc. pen., 1987, 12. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 21 protection, which can still be "balanced", no less effective and / or satisfactory than a criminal one. as a matter of fact, protecting assets in different areas of civil law means putting them under the spotlight and enhancing different characteristics of the assets themselves. considered on a case by case basis with ever increasing importance and deservance of protection, allowing precedence over other charateristics. regarding life, for example, it can mean protecting it as an economic entity, rather than only recognizing its legal-ethical-social value, and it is not given that the first form of protection necessarily produces a lower efficacy than the second. for a correct contextualization of technical legal specificities, it is necessary to keep in mind the different approach to the subject-body relationship held in the u.s.a. and in european law and culture. in the u.s.a., the subject-body relationship appears, mainly, to fall under a typically individual and dominical logic (the so-called property model25), proved by the extension to different parts of the body (organs and tissues) of negotiating schemes aimed to allow its circulation for payment (eg for the location of gametes, or the disposition of blood)26. the option for criminal protection, in a country such as italy, must be contextualised within the broader cultural and legal framework of a subject-body relationship different from that characterizing the u.s. experience. continuing the comparison, it can be said that, not only in italy, but also in other continental european countries, the technique or model of protection mainly followed is that of inalienability (unavailability). personal assets, described as legal objects in italian law, and in particular in the italian criminal code, seem to be characterized by an important role assumed in a social dimension. a dimension that is initially connected to the collectivistic-organistic utilitarianism, which in the framework of the authoritarian state (1930) saw human beings as an entity exploitable for public interests (and human life also as a colletive interest27). a dimension later connected to constitutional personalism, which in the 25 about the rules of responsibility and ownership, which corresponds to a medium-low state intervention, among the first fundamental contributions of economic analysis of law see calabresi-melamed, property rules, liability rules, and inalienability. one view from the cathedral, 85 harvard law rev. 1089 (1972). more recently, rao, property, privacy and the human body, 80 b.u.l. rew. 359 (2000); rodotà, la vita e le regole. tra diritto e non diritto, milan, 2006, 73 ss.; id, ipotesi sul corpo “giuridificato”, in tecnologie e diritti, bologna, 1995, 180; similar setting in resta zeno zencovich, informazione, consenso e responsabilità nei trapianti da vivente: prospettive nazionali e comunitarie, in riv. it. med. leg., 2003, 969. 26 at a theoretical level, an authoritative support for such construction certainly comes from the school of "economic analysis of law": see rodotà, last paper cited, p. 196. 27 not only in italy, but also in other continental european countries, the technique or model of protection of life and personal safety mainly followed is the inalienability model, historically imposed in accordance with the policy objectives of an authoritarian state (code rocco, 1930), where the individual interests were andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 22 context of the social state of law (1948) promotes instead the development / improvement of the social system, substantial equality (article 3, paragraph ii, cost.), and freedom itself (now interpreted as personal, or positive freedom), through the assumption of new and broader tasks assigned to the state, as well as in the criminal field. the extension to omissive and negligent crimes certainly falls cleanly into this new and broader perspective of protection of the human person. the contemporary historical-political framework favors the extension of concepts of omission and negligence (even medical) that are criminally relevant into the synergy realized between: a] intervention of the welfare state in ever wider spheres of a citizens life (from health care to work relations, etc.); b] increasing technological progress and mechanization: the increased potential for harm in social life is faced with the creation of an ever-increasing number of precautionary rules. this development is incessant (of "techniques", of social function, of the state, of criminal law) and characterizes the italian experience throughout the twentieth century. specifically in the field of health, this development arrives under the banner of "socialization" that promotes good-health as fundamental not only to individual but also to so collective interests (art. 32 of the constitution). this c.d. socialization of interests (typical of the italian experience 28 ) with reference to health, offers a further possible key to understanding the different approach to medical responsibility seen in italy, compared to the u.s.. while for a prevalently privatized healthcare system, like the u.s. system, it is natural to adapt mechanisms that are purely geared toward civil protection. for a coutry like italy, where we find a greater state intervention regarding the protection of health, rigidly dependent on collective ones (so-called collectivization of the interests). criminal protection appeared then as the most suitable to defend assets, such as life and the personal safety, considered not of exclusive individual relevance, but mainly related to the superior state interest. to go back even further, already at the dawn of the distinction between voluntary and involuntary homicide (as clarified in roman criminal law), manslaughter perpetrated without occidendi animus, although not always sanctioned (in the royal and decemviral laws) with capital punishment, like voluntary killing involved the obligation of an expiatory sacrifice, to be carried out in public assembly: the death of a citizen (free, of course) was considered to involve anyway the interest of the res publica, upsetting “gods’ peace” (pax deorum): v. santalucia, item omicidio (dir. rom.), in enc. dir., xxix, milan, 1969, 885. purified of religious encrustations, the justifying nucleus of the thesis that killing offends a collective good, before an individual one, ends up clearly outlined in the words of one major exponent of the positive school, e. ferri. "not only the individual, but also human society has a supreme goal to be reached, for which its existence is therefore necessary, and as this results precisely from the existence of each member, so then society has the right that, preserving his own, they preserve their existence ": see ferri, l'omicidiosuicidio, turin, 1925, 488. in the same sense, nuvolone, diritto penale. i delitti contro il patrimonio e contro la persona, milan, 1964, 207; granata, l'omicidio nel diritto penale, rome, 1960, 12; vannini, delitti contro la vita, milan, 1958, 5. for the latter author, the good of life from the subjective point of view turns into a dual interest: individual, as supreme good of every human being, and ethicalpolitical, "as demographic interest, as a condition of life and development of the social aggregate, as condition of moral and material force of a politically organized people". 28 sgubbi, paper cited, 34. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 23 interpreted as a public good, it is instead reasonably accompanied by a growing recourse to criminal law. the fact remains that, from a "functional" point of view, the two legal experiences have evolved in parallel. in both we indeed find «the lower courts and even more the supreme court imparted to the "living law" on the issue of medical responsibility an evolutionary movement in successive phases progressively shifting to protect the rights of the patient, and simultaneously less protection of the rights of the physicians»29. this trend favors the rights of the patient (although not immune from periodic reexamination), common to the two systems and developed throughout the twentieth century according to the particular characteristics and "systematic preferences". when the evolution of malpractice is approached from a general viewpoint, in a broad diachronic perspective, the following parallelism seems to be established: a trend for "privatization" in american healthcare is matched by a revolution in rights, in favor of the patient, carried out in the field of tort law; while a prevalent "socialization" of italian healthcare is accompanied by a parallel prevalent escalation of criminal responsibility. in order to identify possible factors that could explain why in the u.s. negligence traditionally plays a greater role in the field of torts (civil responsibility) rather than in the criminal field, it is useful to reflect on the birth and development of negligence lawsuits in american law. already in the mid-nineteenth century – according to friedman's reconstruction – the tort of negligence begins to impose itself on other civil lawsuits and actions30. the scholars who analyzed the origins, development and functions of the tort system (legal form practically non-existent before the nineteenth century) have found that, contrary to its more recent evolution (which makes it the emblem of the individual rights movement against the oppression of “stronger powers”), this institution initially intended to encourage, or at least not hinder, the growth of the young business world31. civil law, more dynamic and evolved than penal law, appeared the most flexible instrument to accompany – while avoiding rigidities and overly severe disciplines – the development of a nation which appeared on the world stage making economic freedom 29fiori, medicina legale della responsabilità medica, milan, 1999, 237. 30 friedman, history of american law, 1985, edited in italy by giuffrè, pag. 301: «the real explosion of the tort law and negligence, in particular, must be traced back to the industrial revolution, the era of engines and the machines. indeed, this field of law mainly deals with personal injuries. in a pre-industrial society there are few cases of personal injury, except as a result of violence or beatings». on the explosion of (civil) liability in the american law during the twentieth century, see also id., american law in the 20th century, new haven london, 2002, chap. ii. 31 friedman, history, paper cit.., 475 following. andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 24 its strength and strong point. many institutions and civil concepts were therefore born, and initially used "for use and consumption" by business and companies32. only at the beginning of the twentieth century did tort law, which until then had tenaciously defended the economic interests of the productive classes for a sort of "heterogenesis of the ends”, begin to undergo more and more consistent pushes in the opposite direction: the direction of protecting those who had become "victims" of progress. innovations, such as the doctrine of the res ipsa loquitur33, the extension of the notion of responsibility and the increase of damages payable to the plaintiff, developed in the 70s of the last century, entered the malpractice area and began to hurt the interests of social groups traditionally considered "protected", such as physicians, dentists, nurses and hospitals in general. the foundations were then laid for the explosion of responsibility for which nowadays a court summons represents an almost inevitable event in the career of a north-american health professional34. the point to highlight here, while reconstructing origins and influential factors, is that in the u.s. the primary role of tort law (particularly, the tort of negligence), is its ability to become common in a more rapid and articulated way even compared to the english motherland. this is precisely because the tort of negligence constituted (and still contitutes) a more agile and dynamic tool to govern responsibilities in a society that from an “economic” point of view became strong very rapidly and from a "technical" point of view became more complex35. and what functions did criminal law perform in the u.s. system? born as deeply imbued with the concept of sin, and collected in laws often with a "strong mosaic flavour"36, this branch of the legal system, from the colonial period to the end of the nineteenth century, remained little developed. since criminal law is, as a matter of fact, the primary instrument in the hands of authorities to exercise power over the 32 on the insistence of the american legal theory of post civil war in limiting both the responsibility and the measure of the damages, v. gilmore, the ages of american law, 1977, edited in italy by giuffrè, pag. 87; compare with friedman, paper cit., 481. 33 on the historical evolution of malpractice, see rothman, strangers at the bedside. a history of the law and bioethics transformed medical decision making, new york, 2003, 127 following; cave bondi-ciallella, medical negligence: inquadramento storico della responsabilità professionale nel diritto americano, in iura medica, 1995, 22 (res ipsa loquitur is the civil thesis based on a presumption of negligence created by a circumstantial evidence). 34the explosion of responsibility had such a force that (as often happens) it has finally produced an "oscillation" in the opposite direction, a counterrevolution (friedman), proved by the introduction, in more than thirty states, of rigid limitations (caps) on the amount of the compensations, especially with regard to non-economic and so-called "punitive" damages: see studdert-mello-brennan, health policy review, in anderson (ed.), medical malpractice. a physician's sourcebook, totowa, 2005, 237; friedman, american law, paper cit., 539. 35 alpa, presentation of friedman, storia, paper cit., xxiv. compare with cave bondiciallella, paper cit., 11 36 friedman, storia, paper cit., 67. compare with id., american law, paper cit., 365. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 25 citizens, in a country where, compared to england, "the degree of the connection between the rulers and the ruled was greater [... ] this led to a considerable laxity in the effective use of criminal measures"37. around 1900, the social investment in the fight against crime increased, with an aim to contrast mostly violent crimes (which, especially in the cities, were no longer tolerable by an industrial society, now characterized by close relations). as happened with the tort, crime was initially considered "bad for business", and was consequently repressed 38 . so much so that it was also possible to configure responsibility for unvoluntary crimes, but only if directed against property. a good – property – which, in order to protect the wealth of the country, received in the criminal area a much stronger protection than that of the person. with regard to the dimension of protection of property in the framework just outlined, personal property and in particular health, began to evolve from the standpoint of administrative organization of health services, towards a purely privatistic dimension: the dimension that still mainly characterizes them today. iii. "access to justice", paths and outcomes: contingent fee in tort area and criminal justice as "free legal aid"; "preponderance of evidence" and "beyond reasonable doubt"; compensation for a few people and symbolic criminal convictions. to evaluate the functionality of the different forms of protection it is necessary to innitially take into consideration the conditions of access to justice, then the different paths and trial "turning points", with particular attention to the key element of causality, and finally the outcomes of the different models. one factor of american specificity, with regards to the tort of malpractice, is the contingency fee. this condition guarantees legal aid and specialized consulting services to clients without any advance payment, and only in the case of compensation the fee and reimbursement of expenses are recognised to the professionals, generally in the amount of 1/3 of the final reimbursement39. does the contingent fee make access to justice easier for the victims of malpractice? according to data on the us system, in the context of adverse events due to negligence (therefore, of potentially "valid" claims), only about 2% (even 1.2%, according to a study conducted in a chicago hospital40) are actually filed as judicial 37 friedman, storia, paper cit., 285. 38 friedman, last paper cit., 606. 39 grembi, una riflessione tra economia e diritto sulla malpractice medica: i casi di stati uniti e italia, in mercato, concorrenza, regole, 2005, 459. 40 hyman-silver, medical malpractice litigation and tort reform: it’s the incentives, stupid, 59 vand. l. rev. 1091 (2006). andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 26 proceedings. it is the phenomenon of so called under-claiming (patients entitled to compensation generally do not sue). the overwhelming majority of patients suffering medical damage due to negligence, for various reasons, do not sue (98%)41. the contingent fee seems to advantage filing only the actions with the highest “bet”, in terms of potential refundable damages. the total number of actions brought about each year throughout the nation is around 85.000, and in general, on this final figure, under-claiming is far more prevalent than over-claiming (patients who sue but do not deserve compensation)42. assuming that, as the most recent research seems to show, in cases of malpractice a small minority of the injured sue (2% in the us, 16% in italy, according to the tribunal for the rights of the sick43), it may seem paradoxical or provocative that some authors even say that "the problem of medical negligence is that not enough people sue"44. for a long time now the most authoritative doctrine has been committed to "bringing our attention to the law, or in any case the expectation by flesh and blood victims of crime to be included, as co-protagonists, in the legal and judicial circuit"45. obviously for the victim, "being included in the legal system" means, above all, not having the economic burden of providing resources necessary to file an action. it is necessary to consider that to bring about a lawsuit for malpractice, considerable resources are needed. resources not only in economic terms, but also in terms of time; not to mention that the long, inefficient and expensive procedure of tort 41chessick-robinson, medical negligence litigation is not the problem, 26 n. ill. u. l. rev. 566 (2005), which underline the very high costs (from $ 35.000 to $ 50.000) necessary to bring a civil suit for malpractice; according to studdert – brennan – thomas, beyond dead reckoning: measures of medical injury burden, malpractice litigation, and alternative compensation models from utah and colorado, 33 ind. l. rev. 1643 (2000), one possible reason is that the damages are too small to justify a lawsuit; another possible reason is that the lawyers, who typically work on contingency fees, wish to file action only for "attractive" clients (i.e. victims easy to pity, with causes for serious damages); alternatively, some people are simply not litigious by nature. on why so many "real" victims do not sue, see also hyman-silver, medical malpractice litigation and tort reform: it's the incentives, stupid, 59 vand. l. rev. 1113 (2006): «the malpractice system is expensive, burdensome, and slow. to become a plaintiff, a patient may have to terminate an existing relationship with a health care provider and find a new source of treatment. a patient may fear being “blacklisted” that is, being refused treatment by other physicians or providers who steer clear of patients known to sue». 42 hyman-silver, medical malpractice litigation and tort reform: it’s the incentives, stupid, 59 vand. l. rev. 1089, 1092 (2006). further on, the authors also analyze the reasons why patients sue: «the incentive to sue depends on the severity of the injury, out-of-pocket expenses, and the extent of the patient’s irritation with the provider». 43 according to the data of the italian tribunal for the rights of the sick, reported in the article badly treated by the 50% of the operators, corriere della sera, 17/4/2007, "in 84% of the cases of suspected error reported by citizens no medical and legal advice starts". 44 mulcahy, threatening behaviour? the challenge posed by medical negligence claims, in freeman & lewis, law and medicine, new york, 2000, 102. 45 fiandaca, perché punire e come punire?, typescript, 1. medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 27 transforms most of the resources (54%) into profits for lawyers and technical experts, in addition to insurance and administrative costs46. less than half – if all goes well – directly favors the injured. from this standpoint, it is evident that criminal law potentially offers some practical advantages if compared to other forms of protection, and in particular if compared to tort law. in the event that the complaint is likely valid, in italy the public prosecutor then orders a publicly funded consultation. the patient can use this consultation even in the event of a civil trial. that public prosecution can be interpreted as the cheapest way to obtain justice is not new, even in the u.s.47. already packer, in his famous work the limits of criminal sanction, speaking of latent functions of criminal law, noted that "the service [of the public prosecutor] is very satisfactory to the plaintiff, since he obtains free legal aid"48. at the same time it must be kept in mind that there are risks of manipulation, and potential losses undergone by the public prosecutor's function: «it is a burden for the public prosecutor's office to be called to carry out functions essentially of tort law, and equally important, there is always the possibility of injustice and abuse, due to the coercive effect of the threat of a trial against a person who is not normally represented by a lawyer». but the only plausible alternative – to quote packer again – is "to provide adequate legal aid to the majority of individuals who can not afford legal services at the current price". continuing with the comparison between the different process paths and trial "junctions", one of the main differences between tort and criminal law seems to concern the element of causality. given that satisfactory and punitive interests are both present in the victim (either the injured party in the civil realm or the plaintiff in criminal law), and given that these interests, although variously emphasised, are not easily dissociable, nor separately "weighable" in different trials (civil and criminal), the variation between methodologies for ascertaining civil causality and criminal causality depends on the position of the accused in the criminal trial, compared to the civil defendant. 46 barringer, a new prescription for america’s medical liability system, 9 j. health care l. & policy 241 (2006). on the low efficiency of the medical malpractice system, see mello-studdert, the medical malpractice system: structure and performance, in sage-kersh (eds.), medical malpractice and the u.s. health care system, new york, 2006, 11. 47 on this point, with specific reference to the spanish experience, see rodriguez vazquez, doctors in spanish criminal law: medical responsability for death and injuries caused by negligence in presentday spain, in 25 medicine and law 411(2006). 48 packer, the limits of criminal sanctions, stanford, 1968, italian edition by giuffrè, 1978, 304. andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 28 the reflections on the "transcendental" values and the immense scope (to resume the expressions of the american judges) brought into play by the accused, and on the accused’s disadvantaged position, appears central in u.s. case law. on this basis, the construction of a probative standard for criminal trials (and for criminal causality) which is far «more stringent» than the civil one, has been initiated: bifurcation / differentiation of the category-causality, criminal versus civil, subsequently imported in italy, with the leading sentence of the italian supreme court, civil joint session, 11/1/200849. also on this basis, given that the etiological development "the trial is substance", a different substantial status of causality is also founded (the thesis of causality becoming a trial element is now becoming established, in the sense that upon the configuration of this category of substantive criminal law, the method of its evidential scrutiny has a decisive influence)50. in u.s. law, where the distinction between criminal causality / "beyond any reasonable doubt" and civil causality / "more probable than not" has arisen, the different 49 italian supreme court, civil joint session, 11/1/2008, n. 576, v. c. usl 42 napoli (about responsibility for damage from transfusions with infected blood), in cass. pen., 2009, 69, with a note of blaiotta, causalità e colpa: diritto penale e diritto civile si confrontano. 50 so, quoting the famous "franzese" sentence of the italian supreme court, criminal joint session, 10/7/2002 (in foro it., 2002, ii, 598, with a note of di giovine, la causalità omissiva in campo medicochirurgico al vaglio delle sezioni unite; in dir. pen. e proc., 2003 , 50, with a note of di martino, il nesso causale attivato da condotte omissive tra probabilità, certezza e accertamento; in riv. it. med. leg., 2002, 1605, with a note of fiori la monaca albertacci, le sezioni unite penali della cassazione riaffermano l'esigenza di elevata probabilità logica del nesso causale nelle condotte mediche omissive: ma nel contempo confermano, pur dichiarando prescritto il reato, la responsabiità del medico in un caso di colpa e nesso causale poco probabili): «the definition of the concept of criminal causality significantly depends on trial scrutiny, which remains decisive for the decoding, in effectual terms, of the causal development related to the single event, especially in the presence of complex phenomena of "multiple causality", linked to the modern advancement of activities». in doctrine, on the criminal categories becoming trial elements, a far-reaching phenomenon in which "criminal law is adapting, in its own structures, according to procedural forms", see padovani, il crepuscolo della legalità nel processo penale. riflessioni antistoriche sulle dimensioni processuali della legalità penale, in ind. pen., 1999, 541. on the impact of proof in defining the juridical concept of causality, see donini, la causalità omissiva e l'imputazione per l'aumento del rischio. significato teorico e pratico delle tendenze attuali in tema di accertamenti eziologici probabilistici e decorsi causali ipotetici, in riv. it. dir. proc. pen., 1999, 82; marinucci, il diritto penale messo in discussione, in riv. it. dir. proc. pen., 2002, 1041; di giovine, la causalità omissiva, cit., 612; piemontese, le problematiche della causalità omissiva: tendenze emergenti e modelli prasseologici, in scritti in onore di antonio cristiani, torino, 2001, 603; fiore, la teoria generale del reato alla prova del processo, naples, 2007, 91 following.; in a critical sense, stella, l'allergia alle prove della causalità individuale, in riv. it. dir. proc. pen., 2004, 380, who strongly emphasizes the danger that case law proceeds «in the name of an ill-concealed aspiration to start off an authentic 'evidential function’ of the substantial criminal law». in the german doctrine, on the difficult relations between "concept" and "proof" of causality, compare with volk, sistema penale e criminalità economica, naples, 1998, 89: "our distinction between theory and praxis finds its correspondence in the different systems of substantive and procedural law. [...] we proceed, in relation to the question of law, in a different way from the question of fact. this works very well until only the "law" is relevant in the first sector and only the "experience" in the second. but if you need rules of experience already for the definition of the concept and then again for the proof, as happens for the causality, then two things happen: or it is not sure if a certain topic concerns the concept or the proof, and it becomes difficult to mutually delimit, in an unambiguous and reasonable way, the areas of substantive and procedural law." medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 29 evidentiary standards, criminal and civil, were "sculpted" by judge brennan in the famous ruling by the supreme court in 1970, king winship51. these are the reasons: "in a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. a preponderance of evidence standard therefore seems peculiarly appropriate, for [...] it simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence. in a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty […] i view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free" (italics ours). it is an argument that is rationally results oriented: "the standard of proof influences the relative frequency of these two types of erroneous outcomes. if, for example, the standard of proof for a criminal trial were a preponderance of evidence, rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each"52. what are, finally, the outcomes of the various forms of protection, prevalently civil law in the u.s. and the one "driven" by criminal law in italy? according to u.s. data, in the aggregate of lawsuits for malpractice filed each year, the subset of the victorious cases amounts to less than half of the total, and includes both "valid" and theoretically “invalid” cases: hence the use of expressions such as jackpot justice, or "lottery of lawsuits", to describe the quasi-random mode of compensation allocation53. the data is confirmed by the empirical study conducted by merrit and barry in ohio, according to which in only 30.7% of cases do patients obtain a victorious verdict 51 397 u.s. 358 (1970). 52 these are the reasons for consent expressed by judge harlan in the winship sentence. on the relationship between evidentiary standards and the costs of false acquittals and false convictions, see laudan, truth, error, and criminal law. an essay in legal epistemology, new york, 2006, 69, 87, in the sense that the evidentiary standard "incorporates the social contract about the acceptable relationship between true acquittals and false convictions". on the causality and evidentiary uncertainty about negligent conducts see beever, rediscovering the law of negligence, oxford and portland, 2007, 413 following. 53 in a critical sense, see hyman – silver, op. cit., 1092 following, 1106. andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 30 in court 54 (in 38% of the cases, according to jury verdict research 55): a low rate, considering that, according to general statistics on tort trials, the actors win in 52% of the cases on average56. surely better, for patients, is the data related to extra-judicial compensations (which constitute the most common outcome of proceedings). these are granted more or less in half of the cases, even if normally for much less than the amount due57. in the final analysis, surveys seem to show that the us tort system tends to undercompensate (both in absolute figures and in relation to the amount of the compensable damage), rather than over-compensate (as many believe) the victims of medical negligence (only in rare cases victims with minor real damages are slightly overcompensated)58. and the criminal responsibility of health professional in italy? its function seems to be primarily of symbolic stigmatization: the effective execution of the sentence (especially in the detention mode) tends to become a rather remote eventuality:"criminal law has been reduced to a kind of inoffensive mimicry"59, to quote sgubbi. it is mostly a problem of avoidance of sanctions, due to judicial indulgences in the application of conditions to suspended sentences. the conditional suspension of punishment (extended in 1990 to accessory penalties), "in its distorted practical automatism, disregards – according to common opinion – every guarantee on the non-danger of the subject and every control and assistance"60. conceived on the anglo-saxon model of probation, that is, the suspension of the sentence of condemnation (originallly aimed at the rehabilitation of the youngest defendants), in continental europe turns into the suspension of the execution of the penalty. as a remedy for short prison sentences, enforced for occasional and unrepeatable 54 merrit-barry, is the tort system in crisis? new empirical evidence, 60 ohio st. l. j. 315 (1999). 55 health care providers win most cases, in http://www.medicalmalpracticetoday.com/medicalmalpracticestats-hcpwinmore.html (statistic based on a national database of 193.500 verdicts and compensations for personal damages). 56 medical malpractice trials and verdicts in large counties, in http://www.medicalmalpractice.com/national-content.cfm. 57jakiw, the current medical liability insurance crisis: an overview of the problem, its catalyst and solutions, 13 annals health l. 510 (2004); hyman-silver, paper cit., 1106: «on average, the actors recover aroung half of their losses [...] medical malpractice cases also seem to take a longer time than other cases of tort». 58 hyman-silver, paper cit., 1104; compare with compensation payments in medical malpractice litigation, in http://www.medicalmalpractice.com/national-content.cfm. 59 sgubbi, cit., 90. 60 mantovani f., last paper cit., 760 medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 31 crimes, in italy the suspension undergoes serious functional distortions, until its almost total deformation into clemency measure61. this, first of all, because the italian legislator has expanded its application range, regulating the possibility of a second concession, extended to convictions up to two years (also resulting from the sum of the first and the second convictions: a penalty limit which, normally, is not consistent with other legislations). secondly, because the conditional suspension of the sentence, in practice, is applied almost automatically. as it is almost automatical for the judge to allow for “generic” extenuating circumstances. and again: given that the detention penalty concretely imposed, taking into account the various reduction bonuses (up to a third, for example, in the case of alternative procedures) rarely exceeds six months, it is usually replaced, sic et simpliciter, with the pecuniary penalty. the latter (considered as a substitute sanction in law n. 689/1981, article 53, with the aim of containing short detention penalties) carries with it the traditional drawbacks of the pecuniary penalty in the italian system. mainly, a poor deterrent effect and a discriminatory character in favor of the upper classes (who, despite the theoretical graduation of sanctions, are less affected by intimidating powers). with reference to negligent injuries, the fictive nature of punishment is revealed by means of the victim’s complaint (procedural rule introduced with the 1981 reform): this prosecution regime often leads to a specious use of criminal justice, as a form of pressure to obtain an extra-judicial compensation. compensation is indeed usually followed by the withdrawal of the victim’s complaint, and therefore by waiver of punishment. in italy, the impression of a predominantly "symbolic" role played by criminal law in the field of medical guilt seems to have emerged. references barringer, a new prescription for america’s medical liability system, 9 j. health care l. & policy 241 (2006). beever, rediscovering the law of negligence, oxford and portland, 2007. bencivenga, le due americhe. perchè amiamo e perché detestiamo gli usa, milan, 2006. blaiotta, causalità e colpa: diritto penale e diritto civile si confrontano, in cass. pen., 2009, 78. bloch-mcmunigal, criminal law: a contemporary approach. cases, statutes, and problems, new york, 2005. 61 fiandaca-musco, paper cit., 769 following. andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 32 calabresi-melamed, property rules, liability rules, and inalienability. one view from the cathedral, 85 harvard law rev. 1089 (1972). https://doi.org/10.2307/1340059 cave 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criminal law review, 3 (1998). https://doi.org/10.1525/nclr.1998.2.1.3 forti, per una discussione sui limiti morali del diritto penale, tra visioni "liberali" e paternalismi giuridici, in studi in onore di giorgio marinucci, eds. dolcini and paliero, vol. i, milan, 2006, 283. https://doi.org/10.2307/1340059 https://doi.org/10.1525/nclr.1998.2.1.3 medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 33 francolini, l'harm principle nel diritto angloamericano nella concezione di joel feinberg, in riv. it. dir. proc. pen., 2008, 276. friedman, american law in the 20th century, new haven london, 2002. friedman, history of american law, new york, 1985. gilmore, the ages of american law, new haven, 1977. https://doi.org/10.2307/1340363 granata, l'omicidio nel diritto penale, rome, 1960. grembi, una riflessione tra economia e diritto sulla 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https://doi.org/10.1017/cbo9780511617836.002 https://doi.org/10.2139/ssrn.179913 https://doi.org/10.1093/acprof:oso/9780198299189.003.0005 andrea di landro the age of human rights journal, 12 (june 2019) pp. 13-34 issn: 2340-9592 doi: 10.17561/tahrj.n12.2 34 packer, the limits of criminal sanctions, stanford, 1968. padovani, il crepuscolo della legalità nel processo penale. riflessioni antistoriche sulle dimensioni processuali della legalità penale, in ind. pen., 1999, 541. piemontese, le problematiche della causalità omissiva: tendenze emergenti e modelli prasseologici, in scritti in onore di antonio cristiani, torino, 2001, 603. rao, property, privacy and the human body, 80 b.u.l. rew. 359 (2000). resta zeno zencovich, informazione, consenso e responsabilità nei trapianti da vivente: prospettive nazionali e comunitarie, in riv. it. med. leg., 2003, 969. rodota’, ipotesi sul corpo “giuridificato”, in tecnologie e diritti, bologna, 1995, 180 rodota’, la vita e le regole. tra diritto e non diritto, milan, 2006. rodriguez vazquez, doctors in spanish criminal law: medical responsability for death and injuries caused by negligence in present-day spain, in 25 medicine and law 411(2006). rothman, strangers at the bedside. a history of the law and bioethics transformed medical decision making, new york, 2003. roxin, risarcimento del danno e fini della pena, in riv. it. dir. proc. pen., 1987, 12. santalucia, omicidio (dir. rom.), in enc. dir., xxix, milan, 1969, 885. sgubbi, il reato come rischio sociale, bologna, 1990. silva sanchez, la expansión del derecho penal. aspectos de la política criminal en las sociedades postindustriales, madrid, 2011. simons, dimensions of negligence in criminal and tort law, 3 theoretical inq. l., 283 (2002). https://doi.org/10.2202/1565-3404.1053 stella, l'allergia alle prove della causalità individuale, in riv. it. dir. proc. pen., 2004, 379. studdert – brennan – thomas, beyond dead reckoning: measures of medical injury burden, malpractice litigation, and alternative compensation models from utah and colorado, 33 ind. l. rev. 1643 (2000). studdert-mello-brennan, health policy review, in anderson (ed.), medical malpractice. a physician's sourcebook, totowa, 2005, 230. vannini, delitti contro la vita, milan, 1958. volk, sistema penale e criminalità economica, naples, 1998. https://doi.org/10.2202/1565-3404.1053 medical malpractice as a tort in the u.s., as a crime in italy: factors, causes, paths and outcomes i. introduction. medical malpractice in u.s. law. no criminal responsibility for personal injury negligence or involuntary manslaughter due to minor (not gross) negligence. from practical problems to political-criminal problems… ii. (continued) ... the distribution of omissive and negligent crimes, between individualistic liberalism, solidaristic statism and communitarianism; between the reactive state and the active state; between the individual model of property and the col... iii. "access to justice", paths and outcomes: contingent fee in tort area and criminal justice as "free legal aid"; "preponderance of evidence" and "beyond reasonable doubt"; compensation for a few people and symbolic criminal convictions. the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 1 theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness* martin hapla** abstract: this paper deals with the theory of needs as a possible justification of human rights. first, it defines the concept of need, which differs from the concept of want. it states that need is, by definition, objective in nature. the paper then analyses some concepts of need (especially those of david miller and massimo renzo) and examines their advantages and disadvantages in relation to justification theories (for example james griffin's approach which is based on the idea of normative agency). according to the author, these concepts have natural-law foundations and cannot deal, in particular, with the problem of transition from facts to norms. in addition, the requirements that we usually derive from needs retain too much uncertainty. in spite of these shortcomings, using them as arguments in law and even more in politics retains a great convincing power. its sources are difficult to identify, however, it is an important concept we use in everyday life (though in a shifted meaning). finally, the author concludes that although needs are not able to establish human rights in a satisfactory way – provided we renounce the universal nature of these rights – they can play a very useful and important role in justifying them in certain local contexts. keywords: human rights; needs; basic needs; justification; natural law; normativeness. summary: i. introduction; ii. the concept of need; iii. basic needs as justification of human rights; iii.1 david miller's approach; iii.2 massimo renzo's approach; iii.3 the relationship of theories of needs and other justification approaches; iv. basic needs and their relation to the concept of rights; iv.1 the problem of uncertainty; iv.2 the problem of normativeness; v. convincingness of basic needs; vi. conclusion. i. introduction*** there is no doubt that human rights are currently an extremely influential concept. if governments today commit cruel or unjust actions, we refer to violations of human rights, rather than that they are unjust, immoral, or barbaric (nickel, 2007: 1; kysela, 2014: 258). the very use of this term in english-written books has increased 200 times since 1940, and is currently being used 100 times more often than expressions such as constitutional rights or natural rights (posner, 2014: 6). both point out that human rights are an influential rhetoric – not only in the legal and political practice, but also in its theoretical reflection. but is there actually anything behind it? is it not just a pretty facade * the paper was written as an output from the project axiologické základy právního myšlení (code: muni/a/0828/2016). ** judr. martin hapla, ph.d; an assistant professor at the department of legal theory, faculty of law, masaryk university (martinhapla@gmail.com). ***i would like to thank to my dear colleagues, mgr. pavel dufek, ph.d.; doc. mgr. marek káčer, phd., and judr. pavel ondřejek, ph.d. for their valuable and stimulating comments that enabled me to significantly improve my original text. theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 2 of a house whose interior has deeply decayed? the frequency and manner in which these rights are used in today’s discourse undoubtedly testify that they have considerable influence on us and that they are in some sense very convincing, but they no longer tell us anything about whether we have good reasons to accept them. it is precisely in possible doubts about the validity of our reasons that we can see a certain deficit. many authors (neumann, 1992: 353; freeman, 2004: 392) have pointed out that we do not know what exactly is the basis of these rights1. the idea that it is worth asking the question of their justification remains a serious notion. for example, jan broz and pavel ondřejek put such questions into the context of search for the scope and limitations of these rights, attributing a possible positive impact on the coherent application of the law (broz and ondřejek, 2016: 202).2 carl wellman then points out that the formulation of human rights is highly abstract, and if we want to derive specific duties and obligations from them, it is identification of their foundation that can help us to specify them (wellman, 2011: v). theoretical reflection on human rights issues is certainly not a problem in itself – it also has practical consequences. there are countless possible ways to deal with this justification deficit (hapla, 2016: 89 et seq.). one is the effort to bring closer the concepts of human rights and basic needs. the very idea that we have certain basic needs from which our rights somehow derive seems to be very intuitive. the interconnection of both of these categories takes place on a different basis. for example, michael neumann perceives the theory of needs even as a possible third path – an alternative to utilitarianism and right theories (neumann, 1992: 354); an insight that may correspond with a more general attitude that supports the notion that human needs formulate the ontological foundation for the values protected by the legal order (zetterbaum, 1977: 989). the idea that needs-based justification is capable of establishing human rights objectively and universally is currently proposed by, for example, david miller (2017: 179; 2012: 410 – 411), rita floyd (2011: 103), and massimo renzo (renzo, 2015: 572). on the contrary, other authors such as h. j. mccloskey or jeremy waldron, examine the very relationship of needs and rights, arriving to sceptical conclusions that emphasize that rights cannot be fully explained in terms of needs (mccloskey, 1976: 1; waldron, 2000: 116 et seq). the main objective of this paper is therefore to explore whether a concept of needs can be a credible basis for the justification of human rights and their subsequent realization. the greatest attention will be paid to the most serious and most illustrative attempts recently made in connecting theories of needs and rights, which are the conceptions of david miller and massimo renzo. this objective corresponds with the very structure of the paper. the first part of the paper addresses the concept of needs and the second introduces key conceptions that use it. the third part outlines its relationship with natural-right theories and examines its advantages and disadvantages compared to the concept of human rights and other forms of their justification. in the final part of the paper, an attempt is made to identify the causes of its great convincingness. the final 1various concepts of the source of human rights were recently nicely summarized by, for instance, rowan cruft, s. matthew liao and massimo renzo (2015: 702). 2 further compare some arguments by pavel ondřejek (2013: 28) that he uses to prove the necessity to address the theoretical framework of fundamental rights. martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 3 thesis, which i would like to introduce to readers, is that needs are not able to establish human rights in a satisfactory way since they have strong natural-law roots, the criticism of which they cannot cope with. on the other hand, if we renounce the universal dimension of these rights, needs can play a very useful and important role in justifying them in certain local contexts. ii. the concept of need if we talk about needs in common language, we do not always mean the same thing. often, we use this word in a figurative sense or interchange it with a number of other but not the same terms. the first necessary clarification in connection with needs is that we must distinguish the meaning in terms of a statement of the type "engine needs more oil," and in terms of claims about the needs of living organisms. if we say that an engine needs something, it does not mean that it has that need (mccloskey, 1946: 3). therefore, when we talk about needs in other parts of this paper, it will primarily mean the needs of living creatures, namely people's needs.3 another general point is that the goal of such needs is not commodities but their effects on human life (stewart, 1989: 354 and 368). considering, for example, the need to eat, it is clear that a tall and strong man needs more food to satisfy the need than a tiny and fragile woman. the amount of commodity will therefore be very different in both cases, but the effects on their lives will be the same. it is important to distinguish two ways in which we usually use the word need. for example, jeremy waldron distinguishes needs in the instrumental and categorical sense.4 the first one can be formulated by stating that, "p needs x to reach y." x therefore appears to be a necessary condition for achieving y (waldron, 2000: 119). an example of such a construction may be the claim that a drug addict needs a drug to achieve euphoria. in the second example, needs clearly are a narrower concept. this can be described using the construction, “x is necessary as a minimum condition for p to have a bearable human life.” (waldron, 2000: 120)5 such categorical needs can, however, be understood as a particular kind of instrumental needs. (renzo, 2015: 577)6 they do not differ from their basic constructions but the objectives they seek. in their case, they are reduced to a bearable human life or a concept of life worth pursuing. what is important is that if we are to consider needs as justification of human rights, we need to limit understanding to needs in a categorical sense – in the context of certain concepts called basic needs. certainly, nobody would derive from the need of a drug addict their right to use drugs. 3here, i would like to point out to the reader in advance that the distinction between the needs of humans and the needs of animals is one of the key problems of theories of needs that seek to justify human rights. i will address this issue later in this text. 4 with waldron's differentiation, compare the approach of david wiggins to distinguishing between purely instrumental needing and needing in absolute or categorical sense (wiggins, 1998: 7-10). 5in his text, waldron then refers to different variants of the formula in the work of david miller, herbert marcus, and james griffin. 6compare massimo renzo's claim that needs depend on certain goals that we accept (renzo, 2015: 577). theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 4 however, even if we use the term "need" in such a narrow sense, there is still a risk of its possible confusion with other similar terms. it is a precise distinction that can lead us to an adequate understanding of their meaning. the most important thing is to distinguish between needs and wants. the difference between the two was well described by jeremy waldron (waldron, 2000: 129). this author states that a need has an objective character while a want has a subjective character (waldron, 2000: 129). the former is something necessary and essential that creates respect, while the latter is a matter of our desire and whims. all people need to eat, but some women want to have a nicer nose. one can reasonably ask: i want it, but do i really need it? on the contrary, the strength of our wants is that we are always well aware of them since they are part of our inner experiences. we can be mistaken about our needs (mccloskey, 1976: 4) since they do not have to match what we feel. a need is not a subjectively experienced shortcoming – that a man feels thirsty does not mean he needs to drink. his feeling could be merely a result of a hypothalamus disorder when excessive fluid intake can, on the contrary, greatly harm him. in other words, it makes sense to ask yourself, "do i really need this?" but not, "do i really want it?" in addition to the above, there are even more subtle resolution requirements (zetterbaum, 1997: 989).7 particularly noteworthy is the differentiation of needs and drives about which mccloskey claims to be potentially destructive in contrast to needs (mccloskey, 1976: 4). a need is by definition something positive and beneficial to us. greater attention should also be paid to the difference between interests and needs (e.g. wiggins, 1998: 16-17)8 since in certain contexts it may make more sense to speak of the former and not the latter. as a suitable example of such a situation, the aforementioned author uses the statement, "soccer player smith needs special boots to win the prize for the best footballer." (mccloskey, 1976: 2) we certainly would not say that mr. smith needs those special boots as much he needs to eat or drink. however, he undoubtedly has an interest in having them. needs relate more to the basic prerequisites of human existence, not to the aspirations individuals can have. we could say that meeting our needs is in our interest (mccloskey, 1976: 8) or that our interests stem from our needs. certainly not all our interests are needs. they are not only affected by them, but also by goals, aspirations, values, etc. (mccloskey, 1976: 9) in rita floyd's opinion, the definition of need alone may be positive or negative. positive definition attempts to grasp satisfaction of needs as something essential to human flourishing and objective human well-being. on the contrary, negative definition characterizes needs by claiming that failure to satisfy it causes serious harm (floyd, 2011: 110). we can perceive the idea of human flourishing as closely related to the idea of a (good, bearable, etc.) human life, which will be given a great deal of attention in other parts of this paper. let's take a closer a look at the idea that the absence of the necessary is for its essentiality something that could cause us harm.9 such a claim is not entirely 7for example, according to mccloskey, it is necessary to distinguish luxury, natural instincts, wants, lust, expectations, and even some other categories (mccloskey, 1976: 3 et seq.). 8it is true that some authors do not really distinguish between the two concepts. in my view, massimo renzo is also one of them (renzo, 2015: 584). 9this view is strongly criticized by mccloskey (1976: 5 – 6), similarly critical is also griffin (2008: 89 – martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 5 appropriate because in extreme cases it could also apply to the absence of the wanted – at least in the sense that its absence could cause us strong psychological frustration. not every fact that can cause us harm must necessarily be a need, and it is very difficult to define harm about which this would be true (griffin, 2008: 90). for this reason, it is problematic to link the concepts of need and harm. to sum up, if we are to consistently differentiate needs from other similar standards, their understanding begins to approach the characteristics of human features that are not subjective in character (compare wiggins, 1998: 6), and their fulfilment is not associated with negative effects on their lives. it is worth noting that even among the proponents of such a characteristic there is very little consensus on what these features are (zetterbaum, 1977: 989).10 if there is a certain consensus in this respect, it concerns the general characteristics of need rather than what it really is in real life. the problem is therefore noetic. from a conceptual point of view, a need is something objective and positive, but how do we know what a need is in real life? and are there any needs that would meet such a definition? it is not easy to answer such questions and so the following consideration should be perceived as a sceptical alternative that can be discussed, not as an exhaustive answer. naturally, some of our wants can also be needs. i can want things that i also need. however, this does not remove the differences between them. there is little consensus on what all falls into the category of our needs (zetterbaum, 1977: 989). let's admit that wants can be defined with respect to our inner experiences while needs are defined with regard to some conception of (good, dignified, full)11 life. even in this case, however, there may be countless conceptions of life from which we can hardly pick one that would be correct, except that in their case, too, we can ask ourselves what they are conditioned by or what their basis is. at least some of these may be hedonistic, i.e., addressing our pleasant and unpleasant experiences, bringing them rather closer to certain reflection of our wants as their basis. needs are relative to the concept of life, which is a concept that can also evolve. generally, people tend to intensify what they claim are their needs (macmillan, 1986: 288).12 in the context of social discourse, however, this intensification is limited by the 90). 10to this, compare frances stewart's differing assertion that there is a disagreement about what basic needs goods are but a general consensus on their core, which includes food, water, health, education, and housing (stewart, 1989: 348; also compare stewart, 1985: 1). this is close to the approach of massimo renzo (2015: 577) who claims that all people need food, air, water, shelter, minimal health, and a minimum level of social interaction. renzo identifies such needs as basic. david miller (2007: 184) states that basic needs include, among others, food and water, clothing and shelter, physical security, health care, education, work and leisure, and freedom of movement, conscience, and expression. personally, i find it remarkable that miller refuses to create a definitive list of these needs, which suggests that needs as a concept have an epistemically uncertain boundary. 11 e.g. francis stewart has repeatedly mentioned the relationship between the basic needs approach and the concept of full life (stewart, 1985: 3-5). 12 in addition, it would probably be surprising if the successful technical development of the last century has not greatly altered the view of the general society about a good, dignified, or full life. however, by this we accept a different framework of needs and generally recognize more of them than ever before. finally, theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 6 consensus of its participants. the consensus can only be achieved on some issues. such a consensus forms a wider shared understanding of human needs and their disruption. if frances stewart considers extreme cases of disruption of basic needs (e.g., famine) to be well recognizable and at the same time admits that there is a large grey zone in which it is difficult to draw a clear line between when it is and when it is not disruption of basic needs (stewart, 1989: 351), these are insights that are largely influenced by social consensus. surely it would not be right to put an equal sign between needs and wants, but in the real world it cannot be ruled out that the latter is becoming the former in the eyes of the largest part of the people through the functioning of the social arena. iii. basic needs as justification of human rights iii.1 david miller's approach the features of needs can be better revealed if we address them in the context of specific theories. the author of the first theory is currently british political theorist david miller. he distinguishes monistic and pluralist theories of justification of human rights (miller, 2012: 410 – 411). while the latter admit that human rights can have more grounds, the former claim a single universal ground (miller, 2012: 410 – 411). miller himself favours monistic theories since, in his view, pluralist theories can weaken the ethical power of human rights. in addition, conflicts can arise between different grounds of human rights (miller, 2012: 410 – 411). miller thus also rejects the overlapping consensus strategy as a way that justification of human rights could cope with cultural diversity (miller, 2012: 410). on the contrary, he is of the opinion that it is necessary and possible to stick with one universal ground of such rights that we can find in a certain concept of needs. the main problem miller has to resolve in his theory is that the range of needs in each culture varies considerably. indigenous people of a forest tribe do not need the internet, while the citizens of a european city cannot live without it. miller notes that although needs are not a matter of choice on an individual level (miller, 2007: 180), they are on a social level. we have needs as human beings who are anchored in society (miller, 2012: 412). it is therefore not surprising that needs are more extensive in richer societies than in poorer ones (miller, 2012: 412). however, this could endanger their universal dimension. miller seeks to solve this problem by identifying a core of human needs that does not vary depending on place and time. he is also willing to admit that not all rights that are part of human rights catalogues can be described as truly human rights and derived from needs. supporters of similar ways of justification often claim to have only minimalist goals and that they only want to defend a certain core of human rights, not solve all the problems and remove all the disagreements that are related to them in various ways (renzo, 2015: 587). miller then first distinguishes between instrumental and it cannot be excluded that in a society of extreme well-being, the need for a nicer nose will also be seriously discussed with an initiative to enshrine a fundamental right to guarantee its satisfaction. martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 7 intrinsic needs. intrinsic needs are associated with objects or conditions that a person must necessarily have in order to avoid harm. such a need is for instance food without which people would suffer from malnutrition and hunger (miller, 2007: 179). this distinction then leads its author to the necessity of defining harm in such a way as to have a universal character (miller, 2007: 179 – 180). he refuses to grasp it on a biological and psychological basis because people are social beings, which must also be taken into account (miller, 2007: 181). a person then suffers harm only if they are unable to live a minimally decent life in the society to which they belong (miller, 2007: 181). david miller, to a certain extent, combines the positive and negative approach (floyd, 2011: 110) to defining the concept of needs, but ultimately again refers to some concept of life as their basis. after excluding instrumental needs, it is still necessary, in his view, to distinguish underlying needs, which remain unchanged and which are universal regardless of place and time, from objects and conditions that must be satisfied and that are variable. this can be expressed on a specific example: everyone has a health need though only some have a specific need for protection against malaria. according to miller, human rights can be based on such underlying needs (miller, 2007: 182). this to a certain extent clears the concept of needs and identifies its core which is universal, but at the same time very abstract, and can prove to be problematic in deriving specific requirements. later, miller responds to the same problem with a slightly different resolution of human needs; proper and societas needs. societas needs are what people have as members of a particular society (miller, 2012: 413). even in this case, however, miller cannot avoid reference to the concept of decent life. in his concept, we should understand needs as something that determines the conditions of such a life. the persons have this life if they are involved in a range of human activities that are reiterated across societies in such a way that it allows us to speak meaningfully about the human form of life (miller, 2012: 416). legitimate disagreement, in his opinion, does not exist about needs themselves, but about what they mean in particular situations and what should prevail if two such needs come into conflict (miller, 2012: 416). if miller tries to react in his theory to cultural diversity, which he claims any theory of human rights must take seriously (miller, 2012: 409), then he cannot avoid other difficulties. what is the meaning of the need for a fixed dwelling place in a nomad society? miller again deals with this counterexample by defining different types of needs – this time basic and societas, of which the former is universal and the latter linked to a particular society (miller, 2007: 182). basic needs to some extent overlap with his former concept of proper human needs. this conceptual distinction represents elaboration on his previous considerations. human rights are justified only by basic needs, while societas needs justify a wider set of rights of citizenship (miller, 2007: 182). in other words, they guarantee an individual a certain position as a full member of a particular society (miller, 2007: 183). in the spirit of this distinction, we can distinguish the wider right to shelter, which is a human right also possessed by nomads, and the narrower right to a fixed dwelling place, which is held only by members of certain societies (miller, 2007: 183). basic needs can then be defined as the intersection of societas needs (miller, 2007: 183). theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 8 however, such an approach does not allow us to reach any definitive and final list of basic needs because societas needs represent a too large and difficult-to-grasp set which, moreover, is subject to continuous development. finally, miller notices that the demands we generate from basic needs have no limit, which in some cases can cause considerable difficulties (especially for needs that demand healthcare to be satisfied). this is because society, no matter how hard it tries, may not be able to satisfy such needs (miller, 2007: 185). this is, of course, a problematic part of not only miller’s theory but also of other concepts that seek to justify human rights. usually it is dealt with by inserting certain practical considerations among the existential conditions of human rights (miller, 2007: 185 – 186).13 according to miller, practical considerations may also have an impact on what rights we derive from our needs (miller, 2007: 186).14 we certainly have the need for love and respect, but it is the practical considerations that require us not to force those needs (miller, 2007: 187). true love and true respect must have an element of voluntariness. the way human rights are derived from basic needs is thus gaining an important corrective. miller’s theory hints at their most problematic parts. the fact that miller's justification works only within a certain limited framework can be solved by accepting the thesis that it is the maximum of possible. however, this does not change the fact that his set of needs is very abstract and it is a question of whether it can provide us with sufficient clues to solve various concrete situations. fully unresolved then remains the problem of transition from fact to norms. in principle, miller accepts as a prerequisite that certain needs can be derived from certain requirements (miller, 2012: 422), without examining it in detail or attempting to justify it. iii.2 massimo renzo's approach massimo renzo defines his basic needs theory as justification of human rights in relation to james griffin's concept of normative agency. griffin claims that we have human rights to protect how we differ from animals – our ability to create and choose concepts of good life. human rights should therefore allow us to live a human life (griffin, 2008: 31-33, renzo, 2015: 573). renzo then repeats the traditional argument against griffin’s theory which is that many people are not normative agents (typically children, some mentally handicapped, or people suffering from dementia) (renzo, 2015: 574).15 logically, it would appear that such people are not bearers of human rights. the usual defence in this respect is that they can be bearers of other moral rights that they obtain on a different ground (e.g., because they suffer) (renzo, 2015: 574). human rights are not here to deal with and cover all morally sensitive situations. however, the problem remains that if we perceive the torture of children as violation of their dignity and disregard for their humanity, then we need a different concept of what makes human a human than that based on the idea of normative agency (renzo, 2015: 575). massimo renzo claims that such a concept can be based on human needs (renzo, 2015: 575) since it is able to cope 13compare, e.g., the practicalities of james griffin (2008:35). 14on this and following pages, miller illustrates his ideas also using various examples. 15for example, ari kohen (2005: 64) argues similarly against alan gewirth's concept. martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 9 well with the above (renzo, 2015: 577). while some mentally handicapped people are not normative agents, they certainly have some needs. renzo’s concept faces the same problem as most similar approaches – it also relies on the idea, in this particular case, of a minimally decent life that should be understood more broadly than a healthy biological and psychological life (renzo, 2015: 577). renzo himself defines it as, "one in which we have the option to fulfil a core group of socially embedded biological and psychological needs, as well as social needs.” (renzo, 2015: 587) unfortunately, if we extend the concept of a minimally decent life in such a way, we will have to face the usual epistemic problem of how we know what such a life is like. in addition, there is an argument that asks, what is the difference between the needs of coma patients and animals' needs? if we give rights to such patients, then why not to animals? if we emphasize that people, unlike animals, have some higher needs, it is clear that those who are in the coma do not. renzo claims that even the biological needs of people have a social dimension (renzo, 2015: 584). however, it is not entirely clear what he means by this and to what extent it is possible to state this about the above-mentioned examples. this situation could be solved by pointing out that it cannot be considered whether their condition is irreversible since this is given by random factors such as the development of medicine, etc. from a moral point of view, it is necessary to take into account that higher needs are something inherently human and that it is wrong if some people do not have them. there is no such argument about animals. however, accepting this argument also requires accepting its (somewhat controversial) preconditions: if we are to truly accept this concept of needs as meaningful, we cannot go without reference to any form of essentialism.16 renzo states that a minimally decent life is to establish a common standard for all. we might have different life goals and ideas of a good life, but the above concept is minimal and therefore shared by all. it should not be related to any great aspirations or exalted ideas (renzo, 2015: 579). it is essential that we have to have an opportunity for a minimally decent life and that it is not necessary to realize it. one can refuse to eat merely based on their beliefs (or as part of a political protest). however, in such a case it cannot be said that they do not lead a decent life (renzo, 2015: 579 – 580). finally, renzo, after analysing various counterexamples contradicting his theory (e.g., that even a tortured man can live a minimally decent life) (renzo, 2015: 580) states that human rights express rather the worth of a person than the worth of the interests they have. more important is the person themselves than the goals they want to realize. the person is a goal in himself. human rights can thus be understood as non-instrumental, and their justification can be based on such an understanding (renzo, 2015: 582). however, if we accept such a concept, is not the concept of needs redundant? could we do without it in justifying human rights? (renzo, 2015: 582). renzo responds to this objection by claiming that both approaches are relevant in certain situations and that they must complement each other (renzo, 2015: 583). however, he does not elaborate on this 16in this context, compare david miller's claim (2007: 180) that it is needs that allow us to distinguish between what is essential and non-essential for human beings. theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 10 idea any further nor does he adequately show how such complementarity could look. in conclusion, we can state that his theory cannot do without accepting certain preconditions that are not self-evident and on which there will almost certainly not be a consensus. iii.3 the relationship of theories of needs and other justification approaches in connection with other needs-based justification approaches, there is an idea that such a justification may suitably complement other, different approaches. this is, for instance, advocated by rita floyd (2011: 103 – 115) who in one of her texts attempts to show how this concept can enrich the theory of james griffin, charles r. beitz, and beth simmons. in this context, floyd points out that the empirical approach of beth simmons is trying to prove that human rights treaties lead to the improvement of people's lives without sufficiently explaining what such improvement means (or what is meant by wellbeing) and what is its relationship to human rights (floyd, 2011: 108). the theory of needs is, in her opinion, capable of filling this gap. similarly as rita floyd treats human rights, charles r. beitz defines them by means of difficult-to-grasp elements such as, "urgent individual interests" (floyd, 2011: 109). replacing such a category with the concept of basic needs can contribute to the easier graspability and clarity of beitz's theory (floyd, 2011: 112 – 113). in connection with james griffin, rita floyd warns us that griffin himself admits that his approach can be understood to be based on needs or as protecting what we need to act as normative agents (floyd, 2011: 112; griffin, 2008: 90). these ideas can lead us to the consideration of whether some form of theory of needs can serve as a unifying framework for different theories that seek to justify human rights. i presume that if we understand needs in an instrumental sense, they could easily fulfil this role. however, if we considered them instrumentally, would they not be nothing more than an empty and very vague framework? would they not lose what is important, what makes them specific as a justification concept? in relation to other justification conceptions, we can also mention two main advantages of theories of needs. first, this concept can be easily acceptable for some nonwestern cultures. it is because some competing theories are based on assumptions that carry a much stronger cultural connotation. this is true about, for example, griffin's theory based on autonomous agency, which according to renzo, is too tied to the liberal concept of morality and can easily be rejected in the context of approaches emphasizing tradition, authority, or community (renzo, 2015: 575, 583).17 david miller also arrives at similar conclusions, and for the same reasons, perceives the justification concept based on the principle of self-ownership as problematic (miller, 2012: 411). another advantage of this approach may be seen in its greater flexibility. if we admit that one need does not always correspond to just one human right but that there is a whole set of basic needs that is protected by a whole set of human rights, then disagreement on some particular need does not necessarily lead to rejection of certain rights (renzo, 2015: 586). 17similarly, jack donnelly (1982: 313) treated human rights by comparing them with the idea of dignity, claiming that it could be more acceptable to many non-western cultures. martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 11 another theory that is very close to the concept of basic needs is the capabilities approach. this approach is mainly associated with the names amartya sen and martha c. nussbaum. both authors connect it with the concept of rights (nussbaum, 1997: 276). its more detailed analysis would deserve its own text. with regard to the narrower thematic focus of this paper and its possible scope, this approach will be only briefly described here. his creator is an indian economist and philosopher amatrya sen who originally designed it as an alternative concept to welfare economics. its purpose is to answer the questions: “what is the living standard? what is the quality of life?” (nussbaum, 1997: 279). according to nussbaum, the capabilities approach creates the best space in which we can compare how well individuals and nations live (nussbaum, 1997: 285; nussbaum, 2011: 18). capabilities are based on the idea that not only the functions that people are currently performing are important. it is also important to make practical choices that people see as valuable. the starting point of the approach is the concept of functionings, which are activities that constitute a being of a person (e.g. that a person has a good health). the idea that a person can achieve different combinations of functions is the basis of capabilities. the capabilities approach focuses on what a person is actually able to do or to be, not what people feel (nussbaum, 1997: 285; nussbaum, 2011: 20). it focuses on opportunities that are available to every person. it does not concentrate on the total or average well-being. (nussbaum, 2011: 18). the political goal is not functioning but just the capability. for example, someone may decide to starve for religious reasons. putting emphasis only on the functionings would thus lead to a restriction of the freedom of the people. they can decide how they live. nussbaum explicitly states: “citizens must be left free to determine their course after they have the capabilities.” (nussbaum, 1997: 289). in the background of the capabilities approach is the idea of free citizens making choices (nussbaum, 1997: 292). while sen did not create any list of capabilities, nussbaum attempted to formulate it (nussbaum, 1997: 285). on this list there are the capabilities that are crucial to human life. central capabilities are not instrumental in character, but they have value in themselves. as nussbaum writes, they make a life fully human (nussbaum, 1997: 286). we also see here a connection with the idea of a good life. the list includes: life, bodily health, emotions, practical reason, affiliation (friendship, respect), other species, play, control over one's environment (political, material) (nussbaum, 1997: 287-288; nussbaum, 2011: 33-34). all of the above mentioned central capabilities are highly important and cannot be overlooked. similarly to the various lists of basic needs, this could also be accused of being incomplete or arbitrary. however, nussbaum does not claim that her list is final. she expects this list to be discussed and further improved (nussbaum, 1997: 286). the relationship between capabilities and rights may be different. in some cases, right and capability may overlap, sometimes it has the first priority and serves to protect the second (nussbaum, 1997: 293). i find it inadequately clear how we can move from capabilities to norms. having a certain capability does not necessarily mean that a person has the right relating to it. nussbaum states in her text: “we are doing wrong to people when we do not secure to them the capabilities on this list.” (nussbaum, 1997: 300). the theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 12 acceptance of capabilities as something that must be protected by (human) rights, in my view, requires the acceptance of a certain normative premise, which, moreover, is echoed in the quote just quoted. the capability approach represents an interesting alternative to the concept of basic needs. they share common features, but in the case of the former they emphasize the liberal foundations of the whole concept (emphasis on the individual, his freedom and dignity). as we will see in the other parts of the text, the fundamental objection to it (unclear transition from facts to norms) can also be raise to the concept of basic needs. iv. basic needs and their relation to the concept of rights iv.1 the problem of uncertainty of course, needs are not the same as rights. (stewart, 1989: 350; koller, 1997: 255) yet they can represent a compelling basis. or are they even capable of replacing rights in a certain context? to answer these questions, we must first take into account that authors who claim that they can, usually do not claim that one particular need should correspond to one particular right. on the contrary, they argue that there is a whole set of needs that is protected by a whole set of rights (miller, 2012: 417; renzo, 2015: 586). for example, the human need for social contact with other human beings establishes the freedom of movement, association, and expression (miller, 2012: 417). this may eliminate some objections, such as that people have the need to eat and yet we would hardly find any explicit expression of this right anywhere. however, there are other problems remaining which were critically addressed by jeremy waldron (2000). this author does not deny that arguing using claims of needs in the political forum can make sense (waldron, 2000: 116). however, in his view they cannot replace the concept of rights as such, as proposed by mark tushnet to whom waldron responds.18 in order to prove this thesis, he first deals with the argument that we do not agree on what rights we have, and if so, only on their very abstract formulation.19 in his text, waldron seeks to show that the same is true of claims that we can deduce from needs and that also exhibit a high degree of uncertainty (waldron, 2000: 119). according to waldron, we need some philosophy of human needs, and not only of biological needs if we are to seriously consider them as an alternative to the concept of rights (waldron, 2000: 121). in my view, the same is true even if we are to consider them as their possible justification. in order to correctly understand what this thesis means, we need to take a closer look at the difference between these types of needs. for illustration, we can take the form of division to which frederick rosen refers in one of his works. in his opinion, needs can be divided into biological needs, i.e., those necessary for physical survival; basic needs, i.e., those essential for a decent life in society; and functional needs, i.e., those which must be satisfied so that one can do particular job. 18specifically, jeremy waldron responds to mark tushnet's proposal contained in his text, an essay on rights, to replace the language of rights with the language of needs. 19the fact that formulations of human rights are usually very abstract, which opens room for their very diverse interpretation, was also noted by eric a. posner (2014: 31 – 32). martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 13 rosen criticizes and challenges, in particular, the division of biological and basic needs into two separate groups (waldron, 2000: 121). what makes the distinction between biological and basic needs difficult is the impossibility of defining the minimum standard 20 without reference to a particular concept of life. if we define biological needs using the physical survival criterion, we certainly do not aim to merely survive until the next day. we can, of course, say that a person who does not have access to oxygen will die after five minutes, however, such narrowly conceived needs can hardly serve as the basis for an adequate human rights concept that, hyperbolically speaking, would not be centered around sufficient supply of oxygen. therefore, we should rather aim for successful functioning in terms of a longterm framework, and it is true that the standard needed for survival will be very different if we live in a society that expects people to live on average for 50 years or in a society where people are expected to reach 80 years of age (hapla, 2016: 49). if categories of needs are to be demonstrated in practice, they must be based on specific content. it is not very relevant that we have an abstract need to eat since in the real world we have to solve the question of what quantity and quality of food are acceptable in terms of needs. in the view of some authors, such a concretizing rule can only exist within society (zetterbaum, 1977: 990). yet, if it exists within society, it must also be relative to it. if it then refers to concepts such as, "bearable human life," which are very difficult to grasp (waldron, 2000: 120), it is no more specific than all the vague formulations that rights are reproached for so often. iv.2 the problem of normativeness the category of human needs is therefore very vague. so what are the consequences of this fact? jeremy waldron notes that it is understandable that political concepts are such. it must be so, and our task is rather to understand them and to grasp all their advantages rather than to seek to eliminate their uncertainty by some definition (waldron, 2000: 121). such a procedure can be considered to be correct from a scientific point of view. it would prefer complex coverage of the situation, while the other procedure can easily slip into a search for a specific normative criterion and ideologization of the whole issue. david miller sees a key benefit of needs in that they are able to create obligations while other interests (regardless of their strength) are not. miller admits, however, that this thesis stems only from his intuition and that he is unable to explain it (miller, 2012: 422). such admission, of course, does not give his idea much convincingness. waldron sees the issue in a diametrically different way. when he compares the advantages and disadvantages of needs and rights, waldron emphasizes that rights establish obligations for the other party (waldron, 2000: 121). this interdependence of subjective rights and obligations, that is so emphasized by wesley newcomb hohfeld, is logical and generally accepted in professional literature (edmundson, 2012: 73; ivison, 2008: 11 et seq.). in his view, we cannot say the same about needs. it is logically impossible to derive a normative 20the fact that the definition of the basic minimum is a problem was accepted by stewart (1989: 348). theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 14 obligation from needs. waldron himself, however, later moderated this claim a bit. he explicitly states that he does not claim that the language of needs is purely descriptive and value-neutral. he does not deny its certain emotive undertones. he only refuses to admit its straightforwardly prescriptive character which he attributes to the language of rights (waldron, 2000: 121). personally, i view this notion with reservations. as mentioned above, needs are of an instrumental character. while they are descriptive categories themselves, if they are to play any role in our thinking of rights, they must be derived from certain normative requirements, in particular the different ideas of dignified or good life, if not directly from some idea of the human nature. therefore, it is not without reason that h. j. mccloskey warns us that if anybody rejects the idea that there is some general human nature, they should rather abandon consideration of needs as a basis of human rights (mccloskey, 1976: 2 and 6; zetterbaum, 1977: 990). in his view, needs are logically and conceptually connected with the ideas of good existence and nature (mccloskey, 1976: 7), or, as frances stewart points out, they are instrumental to the idea of full life that we strive for (stewart, 1989: 352). the views of both of these authors thus well correspond to the above-mentioned theses. if we are interested in justifying human rights then we need to focus on the last sources of their normativity and perceive needs only as a certain intermediate element, a sort of gear wheel in a complex machine that transmits energy from the deepest of reasons into our concrete actions. on the other hand, the significance of needs can get a completely different dimension if we look at them from the perspective of persuasion, i.e., to what extent they have the potential in the real world to make someone change their attitude. if their position appears to us to be second-rate in terms of theory, they can play a very important role in practice – they can be a key argument that convinces key actors about the need to introduce some legal regulation or to issue a certain judicial decision. below, we will try to take a look at why it is so. so far, let's stick with the matter of justification. the concept of basic needs is closely related to the idea of human nature. searching for the nature of man has been a traditional philosophical topic (zetterbaum, 1977: 988). knowledge of that nature would allow us to filter out various cultural specifics and thus, among other things, to give us a clear answer to the question of to what extent needs are culturally relative (zetterbaum, 1977: 989). however, scepticism prevails over such a process, refusing to understand man as separated from the society in which they grew up and live. remarkably, even some authors who look at this question not from a descriptive but normative point of view and who do not ask how basic needs are understood around world, but how they should be understood, claim that it is more useful to conceive them in practice as a socially relative standard (stewart, 1989: 356). although at the same time they very cautiously admit that some full life indicators can also generate universal standards (stewart, 1989: 358). however, their universality is no longer based on ontology, but on other ideas.21 the idea of nature is then, to a varying 21different types of universality in connection with human rights were addressed by jack donnelly (2007: martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 15 degree, connected to the notion of good, dignified, or full life, in which there is always the problem of how to define it and what exactly we should imagine under that concept. human dignity,22 good, etc., can be considered as good examples of essentially contested concepts. it can be assumed that our understanding of good, dignified, and full life will often overlap. all of these terms refer to the fact that we should strive for something more than just survival and that we are entitled to live a better life than just to exist. all of these concepts conceal in themselves a reference to certain aspirations. this, of course, leads to tension because many advocates of theories of needs tend to emphasize that the requirements they derive from needs are minimal (renzo, 2015: 587). good life can be understood as the broadest of these terms. the statement, "i live a good but not dignified life," may, of course, make a reasonable sense in certain contexts (e.g., the lives of most people in huxley's brave new world), but not if we try to think about the relationship between these terms from a generalizing point of view. the question of how to define, measure, and monitor "full life" was asked, e.g., by frances stewart (1989: 355). this author sees the problem in its definition in finding its constitutive elements for which she considers health, nutrition, education, etc. (stewart, 1989: 355). however, her view is fundamentally influenced by the viewpoint she took in examining the issue. she mainly aimed to define a standard for the needs of international law, especially in the context of the right to development of third world countries. within such a framework, her definition makes sense because there will be a broad consensus on the meaning of a full life that can be achieved. however, if we wanted to use such a definition to support, for instance, the issue of the constitutionality of paying fees at a doctor, that definition would be become too fragile and would hardly provide us with a basis for such a case. objectively, we can hardly say what a good or dignified life is since there is no authority by which we could credibly justify our last values and points of view. this discord can be in some situations overlaid by social consensus as a product of historical randomness. the foregoing leads us to the key thesis of our research, which is that the theory of needs does not help us to deal with the is–ought problem (mccloskey, 1976: 2).23 while we may encounter different constructions that could be perceived as attempts to deal with this deficit, i personally do not seem to be very successful. for example, in his text, waldron states that we strike to satisfy our needs (waldron, 2000: 123). therefore, the primary normative requirement that is associated with needs is directed toward us. in other words: ““p needs x” implies “p should try to get x”” (waldron, 2000: 123). however, this view can be easily misleading because it allows us to confuse our needs with our wants. it does not matter that we seek to satisfy our needs, but rather that we 282 et seq.). donnelly mentions conceptual, substantive, anthropological, functional, international legal, overlapping consensus, and ontological universality. i believe that some of donnelly's defined types of universality (e.g., functional) can be well related to the concept of human needs. 22 this is well evident on the division of different, very often incompatible, types of dignity that doris schroeder (2012: 332 et seq.) uses in her work. compare also the opinion of pavel ondřejek (2017: 2) who puts dignity into connection with dworkin's interpretative concepts. 23it is worth mentioning that many other theories that seek to justify human rights are criticized for the same. for example, joseph raz’s criticism of james griffin’s approach (raz, 2010: 325). theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 16 should strive for them (which perhaps corresponds to waldron's specifying formula, however, there is no explanation of why we should take such a normative requirement seriously). need is linked to an objective character. one can have it without being aware of it. that is not true of our wants. we have the need to eat healthy, but we also have the want to have a duck with potato dumplings and beer for lunch. efforts to satisfy that need are not straightforward. on the contrary, there is a great deal of effort in it that is largely motivated by the fact that the need is at the same time a significant normative requirement linked to a certain idea of good or dignified life that we accept. thus, there is still a reference to another normative source whose relevance we cannot convincingly justify, and we ultimately support that need by only our own unwarranted beliefs. similarly, when david miller states that, "according to the needs approach, we prove that something is a human right by showing that having that right fulfils the needs of the right-holder,” (miller, 2007: 179) he does not explain why we should take the requirement that we should satisfy some needs seriously or what is the source of this norm that is a prerequisite for his theory (miller, 2012: 422). the concept of basic needs does not appear to be more justified than the human rights concept itself. in addition, it may have negative practical consequences. let us recall in this connection the reproach that the theory that our rights can be deduced from some abstract right to satisfy our needs would lead to the claiming of too few rights (mccloskey, 1976: 2).24 this danger is mentioned, among others, by james griffin who, as an example of a right that can be difficult to deduce from needs necessary for the normal functioning of the human body and mind, mentions the freedom of religion (griffin, 2008: 89). david miller also expresses the scepticism against the assertion that the concept of needs is able to generate all the rights that are part of today's human catalogues (miller, 2012: 419 et seq.). however, he does not consider this situation to be problematic because the above-mentioned catalogues often have greater aspirations than just to provide a certain minimum list of human rights that would represent the minimum requirements of global justice (miller, 2012: 420). some human rights, as miller claims, can also be justified by their necessity for the full realization of other human rights that stem directly from needs (miller, 2012: 421). to conclude, there is one more fundamental question to be raised: how much does the concept of needs have to be necessarily connected to the concept of rights? could it be also connected with collectivist ideas that view individual rights with great reservations? could we assume that meeting the needs of a larger group of people can justify that the needs of a smaller group of people are not met? the idea of rights excludes it, but why should it be excluded already by some theory of needs? if it were compatible with different systems that do not take seriously the rights of individuals, could we see it as an appropriate ground for justifying them? 24 to this, compare also amy gutmann's claim that the growth in the number of human rights leads to the emergence of those that cannot be justified by reference to some of the traditional ways of justifying them, including the concept of basic needs (gutmann, 2003: x). martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 17 v. convincingness of basic needs in the previous part of this text, we came to the conclusion that basic needs are not an adequate justification of the concept of rights. in spite of this, such an idea seems to be very intuitive and only few would contradict that they have the right to eat because eating is one of the basic needs of humans. it is possible to agree with michael neumann's view that some people simply think that rights are here to meet our basic needs, that the existence of such a need is in itself a sufficient basis for the moral right to satisfy it (neumann, 1992: 354). often, the argumentation using basic needs can therefore in practice be very persuasive and effective. we must ask the question why is it so. why do we have such a strong idea that needs must be satisfied? and that we are automatically entitled to their satisfaction? in his text, jeremy waldron puts forward a series of statements that could be perceived as relevant causes of said convincingness, provided he himself would not try to refute them later. for instance, waldron says that the language of needs may sound more compassionate, more open, more responsive, and less aggressively individualistic (waldron, 2000: 123). so it might seem more convincing because it is able to act more on our feelings. however, waldron is highly sceptical about that (waldron, 2000: 123). in any case, the stronger emotional effects can be generally perceived as one of the key convincing elements.25 waldron (2000: 125) further notes that rights are in the general awareness associated with negative duties, while needs are associated with positive duties. consequently, he refutes the distinction (waldron, 2000: 126), which is not a difficult task because the fact that human rights establish duties of both types has been convincingly demonstrated by henry shue (1980: 17 and 52 et seq.).26 shue is of the opinion that human rights basically establish three types of corresponding duties: to avoid depriving; to protect from deprivation; and to aid the deprived. the existence of all three duties is perceived as a condition for their effective functioning (shue, 1980: 52 et seq.; stammers, 1995: 496). but also shue's theory has one flaw. in principle, it would be more accurate to say that every human right has the potential to generate both positive and negative duties – in fact, it does so to a varying degree in practice. from some rights, we infer rather negative duties and vice versa (fabre, 1998: 273 – 275). for example, the right to freedom of speech could also result in a positive duty of the state to ensure the functioning of a public television and radio, although it has not been so at least in the current practice (hapla, 2016: 47). similarly, we can assume that even needs themselves do not only result in positive but also in negative duties (provided we accept that needs establish duties). for example, as concerns the need to drink, the state has not only the positive duty to provide people with access to a source of drinking water, such as digging a well, but also 25 the importance of the cultivation of some of our feelings (sentimental education) is also emphasized by richard rorty (1999: 739). 26 shue's theory was then put in deeper context by sandra fredman. fredman (2008: 3 et seq.), for example, criticizes the traditional notion of freedom as absence of disruption and refers to a newer, much broader concept that allows us to illuminate the role of positive duties. similarly, she also reconsiders other concepts that are behind the traditional linking of human rights with negative duties. theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 18 the negative duty to refrain from limiting that need. it cannot send soldiers to prevent access to water to an ethnic minority etc. connecting rights with negative duties, and needs with positive duties is thus illogical, however it may be true that such a connection is fixed in the minds of most people. it seems that the great convincingness of the argumentation that uses needs will be hidden in something else. if we accept that there really is such a thing, we also invoke some objective framework. if we associate needs with a request, we want to imply that we do not call for it based on our whims. our claim has some more fundamental basis that requires it to be generally respected. if there are two people who recognize the value of people's equality and accept that something like needs exists, although they do not have to agree on its content, they cannot simply disregard if one of them claims those needs. in addition, no one would probably say that their own needs should not be satisfied. in its very nature, the notion of need requires satisfaction – the problem is, in fact, the question of what we should consider as real needs and if there is such a thing at all. it is a concept that has the potential for everyone to use it since everyone has the interest that “their needs" are expressed. in principle, everyone recognizes some concept of life that such articulation will rely on. needs are a concept that can be used in everyday life (though often in a shifted or inaccurate meaning), which cannot be said, for instance, about the concept of normative agency. vi. conclusion as is clear from the previous text, it is possible to raise a number of fundamental arguments against the theory of basic needs. however, the truth remains that every theory has its downside. even if, for example, we stick to the theories of rights, we can only state that they need to clarify who and on what basis is the bearer of such rights (andersson, 2012: 176), which many of them have not been very successful at. we need to assess the theory of basic needs in the proper context, and it is true that the notion that the rights are here to protect our needs is probably much more intelligible to most people than, for instance, the idea that these rights protect our normative agency.27 each justification of human rights must have a starting point. we always have some starting points that others might view as unobvious – starting points we don't agree on. that is why the meaning of concepts that allow us, at least in part, to bridge such a disagreement in practice has been gaining importance. the example may be basic needs – although we can hardly agree on what the content is, they can serve as a suitable framework within which we can discuss our problems and discuss differing attitudes. david miller points out that we agree on broad abstract formulations (e.g., the need for education) across cultures, but not on what they actually mean under certain circumstances (miller, 2012: 415). this clearly points to the limits of such an agreement, yet it does not render it completely worthless. from the point of view of the role they can play in the political sphere, they may not seem to be completely redundant, though we do not really need them to justify human rights. the fact that such concepts are functioning successfully in a society can then prove society’s 27for example, the foundationalist concept of human rights that we may otherwise consider to be one of the most elaborate and most coherent (freeman, 1994: 505 et seq.; griffin, 2008: 32 et seq.; kohen, 2005: 49 – 75). martin hapla the age of human rights journal, 10 (june 2018) pp. 1-21 issn: 2340-9592 doi: 10.17561/tahrj.n10.1 19 stability and the presence of trust in its institutions. the concept of basic needs may not be a good ground for the justification of universal human rights, but it can be useful to us in a different way. the great advantage of the concept of basic needs can be easily realized if we accept the thesis that it would be a mistake to understand our rights in isolation. eric a. posner notes that there is little evidence that international human rights treaties are conducive to increasing people's well-being or respect for the rights enshrined in these treaties. one of the main reasons for this is the erroneous assumption that good in each country can be reduced to a set of rules that can then be impartially enforced (posner, 2014: 7). the question remains, how far can we relate this scepticism to the framework of national regulations that also enshrine human rights? however, this thesis illustrates well that the mere inclusion of legal norms in certain legal documents is not sufficient to put them into real practice. the effective functioning of law is thus linked to the successful functioning of other normative systems, as well as to the successful functioning of some (for most people perhaps more comprehensible) concepts that legitimize certain legal norms. one such concept can be variously treated basic needs on which we can successfully base the acquisition of human rights (not in theory, but) in practice. references • andersson, anna-karin margareta, 2012. choices, interests, and potentiality. what distinguishes bearers of rights? p. 176. • broz, jan and pavel ondřejek, 2016. pluralita dimenzí základních práv v současném státě. in: kysela, jan; pavel ondřejek et al. kolos na hliněných nohou? k proměnám státu a jeho 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rather to analyze that concept to try to explain its ambivalence than to tell the story of its emergence and development. i then propose, through hegel and especially against fichte, to establish a new concept, able to avoid the shortcomings of the previous one, which would require us to understand differently the relationship between the two elements, state and nation, which compose it. keywords: nation-state, universality, hegel. summary: i. introduction; ii. the nation-state concept; iii. the concept of nation; iv. the concept of state; v. conclusion. i. introduction although we face many problems today, whether economic or political, the fact is that for the former a solution will be found sooner or later, while the latter pose more substantial difficulties. this is the reason why in this work we will focus on only one of these, the question that can be considered as the most important legal and political problem that democracy in spain has to confront. it is directly interwoven with the use, the misuse, of the concept of the nation-state. it is true that this concept served to ground and settle modern european states. however, that same concept has allowed today a reverse path to be initiated, to the extent that new states claim to be based on it, the so-called europe of the nations. both paths, both the initial one of traditional nationstates, as well as the new one of the nations that are calling for a state of their own have the same philosophical and political basis: the nation-state concept. 1 department of philosophy of law, university of granada, spain (jimenezs@ugr.es). josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 51 it is desirable, therefore, to reflect on that concept, to the extent that both practices are justified by it. this will lead us to ask the reason for this ambiguity and the possibility of escaping from it. to do this we must deconstruct this concept and understand the mechanism of its working, which will enable us to emphasize that, from the moment that its two elements, state and nation, settled on a universality that responds in each case, whether nation or state, to different foundations. the use of both together is founded on a double universality that ends up being contradictory and very sensitive. ii. the nation-state concept to properly understand the complexity of the nation-state concept, i think it would be wise to compare it with nitroglycerin, a powerful but very unstable explosive. this is why despite having a huge capacity to demolish, its use never became widespread. the nation-state concept also has an enormous capacity for destruction. it was used to blow up the late medieval order and build the modern world. it looks like nitroglycerin because its killing efficiency is enormous, but, like it, it seems very sensitive. thus the same should have happened to the concept of the nation-state as happened with nitroglycerin; it should have stopped being used given its drawbacks. however, that has not happened, its use has not decreased, but on the contrary, the concept of nation-state continues to occupy a central place. in fact an important part of the major problems that europe has experienced since the establishment of the peace of westphalia, have been related to the nature of the instability of the nation-state concept. our own political life is governed by the imbalances that start from the crucial role that that concept plays in it. nitroglycerin stopped being used because new materials were found that ensured the same capacity, while avoiding its shortcomings, the derivatives of its instability. in the legal-political field, however, we have been unable to find a new concept that would have enabled us to replace the previous one. i think the reason for this failure is that we have not managed to analyse its components consistently. this would have allowed us the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 52 to understand it exactly and therefore be able to replace any of its elements or to alter its composition so that the same disadvantages would have been avoided. in this paper i will not stop to highlight the great advantages of its use. we only need to recall what happened in european history for three centuries. neither shall i dwell on the negative consequences of its use. in this case we do not even need to look backwards, it is enough take a closer or further look around us. the attempt to disrupt our democratic state, the europe of states, and replace it for who knows how many, the europe of nations, would be a sufficient sample. here i am only concerned with the analysis of that concept in order to understand the reasons for its instability. if we do so, then it would be possible to replace it with a better designed concept to avoid the defects of the former. in short, we would be repeating in the legal-political sphere what happened with the replacement of nitroglycerin by dynamite. in the essence and value of democracy 2 , kelsen reflected on the need for all states to be built on a nation, that is, on the identity of language and culture among its members. he thus recounted the difficulties of his time, the collapse of the austrohungarian empire, and the foundations on which the legal-political order would have to be built to avoid those problems that ended up by destroying the central european order. kelsen supported his arguments on the ideas of kant and fichte, even though he did not go beyond them. to do that, he would have had to take into account the reflections of hegel. kant wrote against hobbes and his conception of the social contract. according to kant, the social contract is the union of a group of individuals in order to form a society. to do so they established a civil constitution. until here he does not differ from hobbes, although he would do so when he maintained that 2 h. kelsen, the essence and value of democracy, ed. by n. urbinati and c. invernizzi accetti, trans. by b. graf, rowman and littlefield publishers, lanham, maryland, 2013 (1929). josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 53 "[that union...] is to be found in a society only insofar as it is in the civil condition, that is, constitutes a commonwealth" 3 thus, the civil constitution is a necessary step, but has to be given on something prior, the commonwealth, which he describes "as the maternal womb" 4 , and we can easily understand it as a commonwealth of language and culture. fichte went more deeply into kant's position in a certain way and hegel would do precisely the opposite, because while for fichte that social life is built on the commonwealth, subordinating the construction of the state to the former, in the case of hegel it was the contrary. fichte based his work on the primacy of the concept of nation, while hegel did so on the state. in his addresses to the german nation 5 , fichte had argued that "people and fatherland [...] as carriers and guarantors of earthly eternity and as something that can last forever here on earth, they are something that is above the state [...] they are above the social order" 6 the consequences of such assertions are obvious. first, fichte argues that "the love of the fatherland should govern the state itself" 7 , so that "the burning flame of superior love of fatherland that understands the nation as the wrapping of the eternal and to which the noble surrenders himself with joy and to which the not noble, that is only there for [“civic”] love [“to the constitution and laws"], must be surrended himself likes it or not." 8 thus, fichte differentiates between love of fatherland, a higher love, typical of one who is noble in character, and civic love, typical of one who does not possess 3 i. kant, i. kant, “on the common saying: that may be correct in theory, but it is of no use in practice” in kant, practical philosophy, trans. and ed. by m. j. gregor, gen. int. by a. wood, cambridge university press, 1996 (1793), p. 290. 4 kant, “on the common…”, op.cit. p. 291. 5 j. g. fichte, discursos a la nación alemana, int. and trans. by m. j. varela and l. a. acosta, tecnos, madrid, 2002 (1807-1808). 6 fichte, discursos…, op. cit., pág. 142 7 fichte, discursos…, op. cit., pág. 144 8 fichte, discursos…, op. cit., p. 145 the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 54 that nobility, that is, love of the constitution and the laws, which is necessarily subjected to the first. iii. the concept of nation against fichte's position in which the nation plays a central role through its link to the eternal, hegel argues that the universality of the nation does not exceed its immediacy, while the universality of the state does. the first is based on the common, which corresponds to a superficial universality, 9 the second is appropriate of the general will, ‘the will’s rationality in and for itself’, and its reality will take place in the state. in short, hegel turns fichte around. now the state acquires a central and not merely instrumental role. to support this position, hegel develops in the phenomenology of spirit a brief, but very complex argument which i shall now explain. in relation to the concept of nation he says its universality, which is first and superficial, is built on the language [die sprache]. this is an externalization of spirit as the spirit of the people that sheds its particularity. thus the people cease to be aware of this, the particularity, at that, the spirit, to be aware of the universality of human existence, a universality that is reached in language. the awareness that a particular spirit of the people acquires from the universality of human existence can only be achieved through unity, which dwells only in the house that language represents. hegel speaks of the spirit of the people and of this spirit insofar as it becomes conscious of itself, which can only happen when unity is achieved by the particular spirits of the peoples, that is, when grouped in the unity that language entails, since the spirit of the people, if it is to become aware, has to do so in language. in other words, when the spirit of the people acquires its awareness, the particularity is exceeded in the unity of language, around which it becomes the essence of a specific people, which is necessarily universal, which is characteristic of all humanity. 9 hegel, el concepto de religión, int. and trans by a. guinzo, fondo de cultura económica, méxico, 1981 (1821-1831), p. 120 josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 55 it is true that hegel has so far only used the concept of people [volk] and spirit of the people [geist des volks and volkgeist]. moreover, the spanish translation fits his requirements. however, the english translation handles the terms as nation, national spirit and spirit of the nation, which apparently is disrespectful, but i think in essence it is more accurate, because in this translation we can glimpse what hegel himself is looking for and will reveal when he conceptualizes the nation as the result of the common undertaking of all, which is nothing but the form that the reality of a particular spirit of the people reaches insofar as it is sensed as the universal humanity, which is achieved through the universality of language. it would only be necessary, for now, that to build that common undertaking around which all come together and constitute a nation, hegel says it requires the formation of a "gesamtvolk” and therefore a “gesamthimmel”. that is, this common work of which the nation consists, requires a rigorous unity, which claims the formation of a 'total', 'complete', people with a goal equally 'total', 'complete', implicit requirements in all the work that we want to consider as common. if hegel had stayed here, he would have left his concept of nation blocked, it would have been simply limited to the immediacy of a single people, however complete it may have been imagined. however, hegel has in mind at the outset that after his concept of nationhood and unity of the common undertaking that this concept represents there is the possibility of achieving a more complex universality than that which can be achieved only when the spirit of the people is sensed as universal humanity in its reality through the unity that language represents and that is identified by the construction of the common purpose as its aim. thus, the universality of the nation is but a first universality. hegel says it clearly: "this universality to which spirit in its existence attains, is, however, only this first universality which first issues from the individuality of the ethical sphere”. 10 10 hegel, phenomenology of spirit, trans. by a. v. miller, oxford u. p., oxford, 1977 (1807), p. 440. the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 56 clearly, this first universality is not yet a state, but both realities, the reality of the nation and of the state, are embodied in the ethical sphere, because the ethical character of the real spirit of a people is based both on that -“the immediate trust of the individuals in their nation as a whole”-, as on this, the state, to the extent that individuals not merely express that confidence, but participate in "the decisions and actions of the government” 11 , which necessarily requires a state structure. it seems as if two transformations occurred in succession. first, the one that happened in a group of individuals through the common task in an entire people, in which we already find an ethical spirit, that however, goes beyond that concept of people, since the ethical character of the spirit of the people is based on the trust of individuals toward the totality of their people, which at the same time goes beyond the immediacy represented by this first universality to the extent that ethical spirit gravitates, secondly, on the participation of all, regardless of how such participation is structured, in the acts and decisions of government. that is, the ethical spirit in which the first universality is based also is extended to a second universality, which is the appropriate of the government of all the people. iv. the concept of state hegel does not say much about the concept of state in phenomenology, although what he does say is fully relevant. he had spoken first of overcoming the particularity of a people in its universality, even it were a universality that was rooted in the immediacy of the unity represented by language. now he builds a new duality. he considers that the concept of people can be approached from two perspectives, first, that "of the state, or demos” 12 that is, of its universality and, secondly, "the individuality of the family" 13 , that is, its particularity, leaving universality strictly as an appropriate feature of demos. 11 hegel, phenomenology…, op. cit., p. 440. 12 hegel, phenomenology…, op. cit., p. 451. 13 hegel, phenomenology…, op. cit., p. 451. josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 57 hegel now plays with the ambivalence of the concept of people, which is understood as demos, but also as something singular, particular. the first grounds the idea of sovereignty, the second builds on the particular aspect of a specific people. he speaks of the demos as universal mass, opinion of itself, necessity and universality. these characteristics he opposes to those with which he characterizes the concept of people as particularity, such as its immediate existence, contingent and vulgar. when he thought of the concept of nation, he did it by distinguishing it for its universality, although immediate, of the particularity of a specific people; now he speaks of the people as demos, thus building a universality unlike that of the character of the nation, because it is a political universality, which the concept of sovereignty requires. thus, hegel establishes a central difference between demos and nation, for while all trace of immediacy has disappeared from the former, in the latter, the concept of nation, its universality remains subject to the immediate. this is what allows him to characterize, according to dilthey, "the great modern states" like those that "embraced, like in its time the roman empire, peoples of different origin, language, religion and different cultures. the weight of all and the spirit and art of the state organization operated this connection, so that inequalities of culture and customs are a necessary product and, at the same time, an equally necessary condition for modern states to be able to subsist” 14 . in other words, the state needs the nation, but the nation needs the state and not merely a national state. this is precisely where the risk of such a concept is found, to the extent that one of its aspects predominates over the other. if the universality of the state prevails, we will fall into abstraction and the problems that this entails; if what prevails is the contingency and immediacy of the second, we will fall, as hegel warned, into vulgarity. in fact, hegel thought of the concept of nation in the same way as fichte, although the former considers it inadequate and tried to go beyond the addresses to the german nation. this leads him to raise two key issues in building a state, the problem of its grounding and that of its foundation. the first he would resolve, contrary to 14 w. dilthey, hegel y el idealismo, trans. and epilogue by e. ímaz, fce, mexico, 1944 (1925), pos. 2519-2535. the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 58 rousseau, by building a general will -"the will’s rationality in and for itself" 15 which differs from rousseau’s common will, in which "[t]he union of individuals within the state thus becomes a contract, which is accordingly based on their arbitrary will and opinions, and on their express consent given at their own discretion" 16 . regarding the question of the foundation, hegel argues, in agreement with kant, about the complex institutionalization of a sovereign, to the extent that people have their voice in that of a constitutional monarch which ensures its unity. the state is erected on this. to solve the first problem, that of the grounding, hegel states, as we have seen, a difference between the common [gemein] and the general [allgemein]. this divergence had been much more clearly established in the constitution of germany, in which hegel defended the difference between the need required for political power and the appropriate contingency of a social union of a people. hence he maintained that “[a] multitude of human beings can only be called a state if it is united for the common defence of the totality [gesamtheit] of its property [... that is, for] a multitude to constitute a state, it is necessary to organize a common defence and political authority” 17 . hegel considers political authority "as pure state law," 18 which enables him to differentiate between what is necessary for political authority, which "has to [be] directly determined by it" 19 and what is "merely necessary for the social union of a people " 20 , which from the point of view of political authority is contingent. so he argues that the state, as a "universal society" 21 , leaves a "free hand to the general 15 g. w. f. hegel, elements of the philosophy of right, ed. by a. w. wood, trans. by h. b. nisbet, cambridge university press, 1991 (1821), p. 277. 16 hegel, elements…, op. cit., p. 277. 17 g. w. f. hegel, la constitución de alemania, introduction, trans. and notes by d. negro pavón, aguilar, madrid, 1972 (1802), pp. 22-23. 18 hegel, la constitución…, op. cit., p. 29. 19 hegel, la constitución…, op. cit., p.36. 20 hegel, la constitución…, op. cit., p.36. 21 g. w. f. hegel, enciclopedia filosófica para los últimos cursos de bachillerato, trans. by m. jiménez redondo, muvim, valencia, 2007 (1808 ff.), p. 90. josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 59 subordinate action" 22 and not in what is properly general. thus he can defend the possibility that "there is a very superficial connection, if any, between the members [of a state], in consideration of customs, education and language; therefore, the identity that formerly constituted the backbone of the union of a people, must be considered now as an accident whose characteristics do not prevent a mass from forming a political power" 23 . thus, the state or the construction of political power is only possible if it is built on the universality appropriate to the demos, which is neither accidental nor contingent but goes beyond the particularity of any people, while at the same time allowing a variety of identities to coexist within that political power. therefore he argues that in the modern state being identical in language, customs, education and religion is superfluous, because it has the ability to impose the same result "through the spirit and art of political organization; with the result that inequalities of culture and customs is so much a necessary product as an essential prerequisite for the stability of modern states" 24 . in this way hegel had solved the problem posed by rousseau when building a political authority that goes beyond the immediacy of the common, at the same time he protects the very identities of that particularity. nevertheless, the building will not be completed until its own closing is inserted in it. to do this will, he will follow kant, as mentioned before, when discussing the need for the "political authority, as government, h[as] to concentrate on a central point [...] if the centre itself is safe, thanks to deep popular respect [...] then, a public authority can leave freely, without fear and without 22 hegel, la constitución…, op. cit., p.36. 23 hegel, la constitución…, op. cit., p. 27. 24 hegel, la constitución…, op. cit., p. 27. the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 60 misgivings, to the care of systems and subordinate bodies, much of the relations arising in society, as well as its conservation according to the laws; so that each state, city, village, community, etc., can enjoy freedom doing and executing that which belongs to its level." 25 if we understand the central point not as the constitutional monarch, but rather as 'we the people'; if we understand its universality as necessary and not contingent, that is, the people as sovereign, we shall be able to solve our problem, if we truly understand that. v. conclusion the conclusion to which we shall necessarily arrive is that of the justification of a democratic and multinational state, that is, a state with one sovereign, in our case, the people, articulated through its cultural and linguistic differences. this is the idea that hegel has defended in the constitution of germany and in the phenomenology of spirit. with this he understands kant in a radically different manner from how fichte had done and solves the problem that we face, at least theoretically. it does not seem from a rational point of view that better principles can be raised than those that are established by those characteristics of a legal and political order appropriate to the constitutional state, which ensures not only the rights and freedoms of individuals; but also their own signs of identity through recognition of the rights to the preservation of their own culture and language. the discrepancy with kelsen is clear, it is not that these differences in national character are those that have to ensure the construction of its own state, rather it is the state that guarantees the survival of such identities. in this way we avoid building a state attached to the immediacy of national characteristics and we could erect a state grounded on rational principles; therefore it would strengthen not only a first universality, based on naturalness, but a more complex universality appropriate to a state that goes beyond the immediacy of a certain culture and language. 25 hegel, la constitución…, op. cit., pp. 30-31. josé j. jiménez sánchez the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 61 however, we should not forget the saying that asserts "that may be correct in theory, but it is of no use in practice” 26 . attempts by peripheral nationalisms to transform "the state of the autonomies [...] into the autonomy of the states" 27 shows the problem to which i refer, that our democracy "will only be definitively consolidated the day on which the question of [those ...] nationalisms [...] is resolved" 28 . true, we might think, following kant 29 , that if we are not able to apply that theory that seems the most rational of all, the difficulty does not lie in the practice but in the failure of the theory itself. nevertheless, this does not seem to be the case. hegel put it very well when he spoke of napoleon’s failure in spain 30 . his ideas were more advanced, more rational, but that does not mean that they could then be exploited, it is when they were applied that the failure was evident. something similar could happen in our country now. trying to use the theory of the multinational state in the present circumstances would certainly lead to the destruction of the democratic system. this is an idea that will require a long time to be assimilated and practiced, since if it is carried out at this time, every nation, every supposed nation would claim its own state, when the application of such a theory would only make sense from loyalty to a general will, 'the will’s rationality in and for itself', which would embody the universal interest and not the irrational interests, because particular, of the different nations. thus, then, there has developed a whole theory, but it seems that we are incapable of putting it into practice. the united states of america was built on the brilliant invention of a sovereign, 'we the people', and the acceptance of thirteen states who assumed the dissolution of their own sovereignty in that of the new sovereign. in our case, we should have to understand it similarly, although not identically, since it is a 26 kant, “on the common…”, op. cit., p. 277. 27 j. semprún, federico sánchez se despide de ustedes, tusquets, barcelona, 2010 (1993), p. 122. 28 semprún, federico sánchez…, op. cit., p. 132 29 kant had argued “everything in moral philosophy that is correct for theory must also hold for practice” (“on the common…, op. cit., p. 289), that is, what was correct in theory, would also have to be so in practice. therefore, “it was not the fault of theory if it was of little use in practice, but rather of there having been not enough theory, which the man in question should have learned from experience” (kant, “on the common…, op. cit., p. 279). 30 “napoleon, for example, tried to give the spanish a constitution a priori, but the consequences were bad enough. for a a constitution is not simply made: it is the work of centuries, the idea and the consciouness of the rational, insofar as that consciouness has developed in a nation [volk]” in hegel, elements…, op. cit., addition, paragraph 274, pp. 312-313. the nation-state concept in the crisis of democracy in spain the age of human rights journal, 5 (december 2015) pp. 50-62 issn: 2340-9592 62 question of maintaining a single sovereign in a state with a national diversity understood as a multiplicity of identities. the problem is that we confuse identity with sovereignty, that is, we perceive the nations as sovereigns. precisely, this is what can be glimpsed in the debate in which we find ourselves, although at times it is even worse, because we do not even understand the appropriate concept of sovereignty. nor should we again pursue the aim of being the test in resolving european problems. as almost always we should wait for europe to be the solution, as these ideas take their place there. the economic crisis has brought to the surface the european evil, the resurgence of nationalisms with and without states. claims for their own state, by some, as well as the claim of lost sovereignty -legislative, territorial, monetary and economic-, by others, show more than the crisis of the nation-state concept, their full consecration, for those and these try to assert it. the crisis is rather that of the concept of sovereignty, that is, the pre-eminence of the state, which shows the inability to articulate some practices which, just as edmund husserl called for in 1935, would lead to the construction of europe as a "supra-nationality of an entirely new type" 31 and therefore of a european sovereign. in this situation it seems clear that it would not be very sensible to set out on a path in our country, that although correct from a theoretical point of view, we must recognize that at least in europe it fails at the present time. therefore rather than the realization of the theory we should, against kant, call for caution and limit, according to hegel, our desire for change to the mere reforms to the existing situation without attempting to achieve what might be correct in theory, but is now inapplicable in practice. 31 cited in semprún, federico sánchez…, op. cit., p. 237 identity, belonging and human rights: cultural cues in integration processes. an introduction dolores morondo taramundi1 this special issue gathers and presents to a wider audience the final results of the research line “identity and cultural integration” developed within the international project integrim (integration and international migration: pathways and integration policies).2 migrants’ integration is a long-standing topic of interest, and even concern, both for academia and policy-making. integration has traditionally been considered mainly from an economic and labour market perspective. however, other points of view have raised claims of their own relevance and usefulness for explaining integration processes as well as for contesting notions of integration and their related policies. among these, the perspectives that look at integration from the point of view of (human) rights entitlements and enjoyment, antidiscrimination protection or access to social and political participation have acquired growing momentum. the integrim research group gathered here partakes of these human rights based analyses of integration processes, contributing moreover a variety of disciplines (law, political science, sociology, anthropology) and methodologies (process tracing, legal discourse analysis, case study, participant observation, ethnography, situational analysis, interpretative interviewing) which enrich the understanding of the deep implications of human rights for migration and integration processes. the main interest of the integrim research group represented here lies with the identity and cultural dimensions of integration processes. these dimensions must be considered within the increasing level of cultural, linguistic, ethnic and religious diversity of european societies, with due regard to globalised trends and the rapid and self-reflective character of cultural transformations. these dimensions pose therefore important social and political challenges both on states and private actors in respect to integration processes. as argued in the first essay of this special issue by eduardo ruiz vieytez, the coordinator of the integrim network, “[t]he relevance of this dimension is that the cultural elements that shape collective identities determine the ownership and 1 human rights institute. university of deusto, bilbao (dolores.morondo@deusto.es). 2 integrim is a joint research and training programme of the seventh framework programme running from 2013 to 2017 (www.integrim.eu). the research leading to the results presented in this special issue has received funding from the european union’s seventh framework programme (fp7/2007-2013) under grant agreement n° 316796. the age of human rights journal, 7 (december 2016) pp. 1-5 issn: 2340-9592 1 http://www.integrim.eu/ dolores morondo taramundi enjoyment of human rights. it is not possible to build a framework that respects human rights without considering the cultural identity of individuals and groups, especially if they are a minority in their respective policy fields”. following the lead of the common basic principles for immigrant integration of the european union (com(2005)389 final) as well as those of the council of europe (resolution 1618, state of democracy in europe. measures to improve the democratic participation of migrants, 2008) integration is understood, throughout the essays in this issue, as a dynamic two-way process which involves migrant and minority persons but also the members of the receiving society and its institutions. this conception of integration opposes other ideas which can be found in european countries’ policies and political discourse and which see integration mainly as an individual responsibility. although for a very long time this responsibility to integrate has been deemed to be performed mainly in the labour market, it is an increasingly noticeable landmark of current integration policies the fact that the immigrant’s duty to integrate is displaced to the cultural realm: “fitting migrants” are not only those economically useful to our markets; they must show that they are capable of integrating culturally in our societies as well. the (perceived) capacity to integrate, which plays a growing role in migrants getting access to the territory of receiving states, is often assessed on assumed ideas of the migrants’ culture and of receiving societies’ culture, as well as of the value and hazards attributed to cultural diversity itself. cultural diversity has played out in different directions in europe. while it is proclaimed as the foundations of democratic pluralism and a requirement for cultural vitality and social and economic performance (council of europe, white paper on intercultural dialogue, 2008), when it comes to immigrant populations and integration policies cultural diversity has been long talked of in terms of hindrance or obstacle and has often become an explanation for conflicts between migrants and native population of the receiving states. different cultural elements, the membership to national, regional or ethnic communities, and kinship networks are also acknowledged to play an important role in facilitating newcomers’ settlement and integration. yet, whereas they ease the tasks of states’ institutions by providing a bridge towards new immigrants, these same cultural elements and bounded communities are perceived as potential trouble: pull-factor for immigration from any given origin, hazards of enclosed minority enclaves, selfexclusion and parallel institutions run outside the reach of the state. finally, a third ambiguous theme in the topic of cultural diversity and immigration which is confronted in the essays in this issue is the question of change, spatial and time dimensions of dynamicity which accompany cultural cues in integration processes for transnational communities and for globalised cultural processes of hybridation. the age of human rights journal, 7 (december 2016) pp. 1-5 issn: 2340-9592 2 identity, belonging and human rights: cultural cues in integration processes. an introduction this special issue, therefore, aims at assessing how cultural elements are displayed in relation to integration by different migrant or minority communities. the issue opens with the contribution of eduardo ruiz vieytez, who focuses on the main cultural traits that define minorities in the institutional language and that are relevant for integration policies. among the several cultural traits that might be cohesive for groups and communities, ruiz vieytez examines those which have traditionally been considered in law and politics for defining minorities, that is, “cultural elements that provide the basis for building these identities that give rise to an asymmetric and politically relevant diversity”. the author assesses the distinct roles attributed in this respect to language and religion and he identifies ethnicity as a “third space” of cultural diversity which is not as clearly conceptualised or codified. both language and religion are important cues in the integration processes of migrant communities. yet, the article shows the different challenges these two cultural traits pose in their relation to human rights and integration. the third type of minority considered in the article, ethnic minorities, is a more ambiguous category and much more subjected to the dynamicity, evolution and interaction which results from transnationalism and globalised migration movements. this is the case of the saharawi community in spain, which maría lópez belloso analyses in the second article. the saharawi community, as many of the other groups considered in this special issue, has the dual characteristic of being an immigrant community and a transnational community. here, culture and its role in the integration of saharawi communities in spain must be read through the lens of transnationalism, of those processes through which migrant communities generate and maintain more or less constant relations and social activities which link societies of origin with destination societies. following thomas faist’s distinction of transnational spaces into family groups, transnational circuits and transnational communities, lópez belloso highlights the latter for its clear cultural implications in terms of symbolic links such as religious membership, language, nationality or ethnicity, or – as it is the case with the saharawi community in spain – political commitment to a national cause. lópez belloso’s essay assesses precisely the impact of the temporal dimension and the dynamicity of transnational communities in the case of saharawi exiles and migrants. in this case, the individuals’ commitment to the national cause trumps over more traditional understandings of culture in forging the links that constitute the community, also in the light of a process of dilution and hybridation of traditional saharawi cultural traits in the transnational spaces of the diaspora. the third and fourth essays take up the issue of culture “construction” and “deconstruction” in the specific case of the roma. roma integration has been for some time now a key topic in european debates on integration. the essay by tina magazzini follows the development of one such european supported actions, the creation of the european roma institute (eri). in the debates around the establishment of the eri, several problems in the relationship between identity and recognition, economic exclusion and political representations are interwoven. the author analyses the criticisms and counter-criticisms to the eri with elizabeth anderson’s and nancy fraser’s frameworks in the background: cultural promotion and social integration the age of human rights journal, 7 (december 2016) pp. 1-5 issn: 2340-9592 3 dolores morondo taramundi through culture are not as clear-cut policy action as it might appear. magazzini considers issues raised under three accounts: cultural (the problem of reification), socioeconomic (the problem of displacement) and political (the problem of misframing) and gauges the political and economic potential that cultural identity holds in societies where exclusion and poverty are turned into cultural traits. kitti baracsi also addresses issues related to roma integration and culture, in the specific context of the school. her essay resorts to engaged ethnography to make explicit the tensions inbuilt to the processes by which different educational actors produce the image of roma students and related ideas about their culture and integration. this type of research allows a very specific understanding of the unique characteristics of the context in each school and how roma identity or “gypsyness” are created by comparison to surrounding environments and existing conflicts, both within roma communities and with the non-roma population. this “production of normality”, baracsi argues, is also key to explaining how roma students are framed as a “separate problem” notwithstanding the problems they present at school might be the same identified for other (non-roma) students. in this process the role attributed to (perceived) roma culture and lifestyle by school actors, non-roma students and families, ngos and other stakeholders plays a central role in the “ethnizisation of marginality” and discriminatory practices. karolina nikielska-sekula explores the role of cultural heritage in the integration of young norwegians of turkish descent, in particular the role of cultural heritage in defining the boundaries of turkish ethnicity for these younger generations. her research shows the complexity of negotiating culture and belonging in avoiding the feeling of “being from nowhere”. this is particularly exemplified by cultural practices brought to norway by earlier generations which, under the conditions and influence of norwegian society, have evolved differently than in turkey and created unique cultural patterns. the author analyses intercultural practices from a triple standpoint: dual belonging, dual non-belonging, boundary making and crossing. shared cultural heritage helps these communities to position themselves locally in norway and, at the same time, for renegotiating traditional practices and values. the author shows this “third space” of norwegian turks (different from both norwegian mainstream society and turkey) as a reflective self-identity founded on a particular (and contextualized) appropriation of cultural practices and elements. self-identity and cultural integration constitute also the leading thread of the last contribution by claudia paraschivescu. she explores the complex emotions of romanian expatriates in paris and london who are considering going through the process of naturalisation and the way they consider british or french passports in relation to their social positioning in receiving societies. notwithstanding romanians being eu citizens exercising intra-eu freedom of movement, which is a fundamental pillar of the union, these communities have been subjected to restrictions in relation to work-related migration and family reunification as well as to more or less explicit forms of social discrimination. the author compares romanian communities in london and paris and the differentiated stories about integration and belonging told by their quest or the age of human rights journal, 7 (december 2016) pp. 1-5 issn: 2340-9592 4 identity, belonging and human rights: cultural cues in integration processes. an introduction desire for a passport. although there is a variety of reasons behind naturalisation, paraschivescu concludes, western citizenships provide romanian expatriates with a sense of security, if not of belonging, and effective access to equal rights which the european union has sadly failed to secure to everyone within the union. the age of human rights journal, 7 (december 2016) pp. 1-5 issn: 2340-9592 5 the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 35 towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach sonia boulos1 abstract: the prohibition on “inhuman treatment” constitutes one of the central tenets of modern international human rights law. however, in the absence of any legislative definition of the term "inhuman", its interpretation becomes challenging. the aim of this article is to critically analyze the interpretation of the term “inhuman” in international human rights law and to suggest a new approach to defining it. the first part of the article highlights the failure of supra-national institutions to provide an independent definition for the term “inhuman”, while mistakenly equating it to other forms of ill-treatment. the second part of the article introduces philosophical concepts necessary for reconstructing the conceptual independence of the term inhuman. it primarily focuses on “the capability approach” and the notion of “human functioning”, as developed by martha nussbaum. keywords: inhuman treatment, capabilities approach, human functioning. summary: i. introduction; ii. inhuman treatment in the jurisprudence of supra-national institutions; iii. towards unfolding the meaning of inhuman treatment; iv. conclusion. i. introduction the prohibition on “inhuman” treatment is a central tenet of international human rights law. article 5 of the universal declaration of human rights (udhr) states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”2 article 7 of the international covenant on civil and political rights (iccpr) restates the same language.3 article 16.1 of the convention against torture and other cruel, inhuman or degrading treatment or punishment (cat) states, “[e]ach state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment.”4 on the regional level, the prohibition is found in article 3 of the 1 lecturer, department of international relations and law, universidad antonio de nebrija, spain (sboulos@nebrija.es). 2 g.a. res. 217 (iii) a, universal declaration of human rights (dec. 10, 1948). 3 international covenant on civil and political rights, dec. 16, 1966, s. exec. doc. no. 95-209, 999 u.n.t.s. 171. 4 convention against torture and other cruel, inhuman or degrading treatment or punishment, dec. 10, 1984, s. treaty doc. no. 100-20, 1465 u.n.t.s. 85. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 36 european convention on human rights (echr),5 article 5.2 of the american convention on human rights (american convention),6 and article 5 of the african charter on human and peoples’ rights (african charter).7 the prohibition on inhuman treatment also constitutes a central tenet of international criminal law. inhuman treatment of civilians,8 prisoners of war,9 or of the wounded and the sick10 constitutes a war crime and a grave breach of the geneva conventions (gcs). however, in the absence of any legislative definition of term ‘inhuman’, its interpretation becomes challenging. as jeremy waldron puts it, “[e]ven with the best will in the world it is not easy to figure out what these provisions forbid.”11 the aim of this article is twofold: first, the article criticizes the interpretation of the term “inhuman” by international human rights institutions; second, it introduces the “capability approach” as a conceptual framework to reconstruct its meaning. the first part of the article highlights the reluctance of the supra-national human rights institutions to articulate an independent definition of the term “inhuman” and its other kin terms, i.e. “cruel” and “degrading”. very often, these three prohibitions are treated as a singular prohibition referred to as “cidt” with the purpose of distinguishing the latter from torture. this approach erroneously assumes that understanding “cidt” requires a prior understanding of torture. in other words, this approach fails to recognize that each of these three prohibitions represents a distinct moral standard. blurring the conceptual differences between the terms cruel, inhuman and degrading treatment has resulted in their gradual supplementation with long lists of purely descriptive rules announced by supra-national institutions, usually without sufficient legal reasoning. while blurring the conceptual differences between the terms “cruel,” “inhuman,” and “degrading” has negative consequences for all three, the term “inhuman” remains the most 5 convention for the protection of human rights and fundamental freedoms art. 3, nov. 4, 1956, e.t.s. no. 5. 6 american convention on human rights, nov. 22, 1969, 1144 u.n.t.s. 123. 7 banjul charter on human and peoples rights, adopted june 27, 1981, 21 i.l.m. 58 (entered into force oct. 21, 1986). 8 see geneva convention relative to the protection of civilian persons in time of war art. 147, aug. 12, 1947, t.i.a.s. no. 3365, 75 u.n.t.s. 287. 9 see geneva convention relative to the treatment of prisoners of war art. 130, aug. 12, 1949, t.i.a.s. no. 3364, 75 u.n.t.s. 135; geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field art. 50, aug. 12, 1949, t.i.a.s. no. 3363, 75 u.n.t.s. 31. 10 see geneva convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea art. 51, aug. 12, 1949, t.i.a.s. no. 3362, 75 u.n.t.s. 85. 11 waldron, j., 2010. torture, terror, and trade-offs: philosophy for the white house. oxford university press, p. 279. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 37 impoverished. the term “cruel” can easily be linked to the clause on “cruel and unusual punishment,” which appears in several constitutions that inherited it from the english bill of rights of 1689.12 this clause has been interpreted as prohibiting either excessive punishments or “barbarous” punishments.13 as for the term “degrading”, it seems to reflect a dignatarian ideal. according to the european court of human rights (ecthr) degrading treatment is one that “humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity.”14 but when we turn to the term “inhuman,” we are clueless on where to start our inquiry. following the vienna convention on the law of treaties (vienna convention)15, the second part of the article starts by unfolding the word-meaning of the term “inhuman” as a first step towards reconstructing its meaning. regaining the conceptual independence of the term “inhuman” requires more than reflecting on its ordinary meaning, certain philosophical inquiries that link it the notion of “human” are in order. therefore, the second part of the article introduces “the capability approach” and the notion of “human functioning” as key concepts for understanding and defining the term inhuman. the work of martha nussbaum is central for achieving this goal. ii. inhuman treatment in the jurisprudence of supra-national institutions while cat prohibits torture and what is commonly referred to as cidt, it only defines the former.16 cat’s definition of torture has been used as a reference point in sketching the differences between torture and other forms of ill-treatment. according to what could be called as the “distinguishing approach,” the terms cruel, inhuman and degrading should not treated as conceptually independent prohibitions, instead they are defined in 12 see for example, u.s. const. amend. viii, which borrows the language of the english bill of rights almost word by word. congressional research service annotated constitution: eight amendment, legal info. inst., https://www.law.cornell.edu/anncon/html/amdt8_user.html (last visited april 10, 2019). article 2(b) of the canadian bill of rights of 1960 stipulates: “[n]o law of canada shall be construed or applied so as to . . . impose or authorize the imposition of cruel and unusual treatment or punishment.” canadian bill of rights, s.c. 1969, c 44, art. 2(b) (can). 13 for a comprehensive analysis of the history of the clause “cruel and unusual punishments,” see granucci, a.f., 1969. nor cruel and unusual punishments inflicted: the original meaning. calif. l. rev., 57, p.839. 14 pretty v. united kingdom, app. no. 2346/02 eur. ct. h.r. (apr. 29, 2002) para. 52, hudoc (apr. 29, 2002); see also yankov v. bulgaria, app. no. 39084/97 eur. ct. h.r. (dec. 11, 2003), para. 114; kalashnikov v. russia, app. no. 47095/99 eur. ct. h.r. (july 15, 2002), para. 101; peers v. greece, app. no. 28524/95 eur. ct. h.r. (apr. 19, 2001) para. 75. in the aforementioned cases, the court stated that treatment “diminished the applicant’s human dignity.” 15 vienna convention on the law of treaties art. 31, may 23, 1969, 1155 u.n.t.s. 331. 16 torture convention, supra note 3, art. 1. https://www.law.cornell.edu/anncon/html/amdt8_user.html sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 38 relation to torture. the “distinguishing approach” is reflected in the formulation of article 16 of the torture convention: each state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (emphasis added).17 according to this view, any attempt to understand cidt requires a prior understanding of torture. the terms cruel, inhuman and degrading are treated as ancillary to the torture prohibition —“a fence around that wall”—, designed, as jeremy waldron puts it, to keep states “not just from crossing the torture threshold, but to keep them from even approaching it”.18 for example, according to the committee against torture, “the definitional threshold between ill-treatment and torture is often not clear. experience demonstrates that the conditions that give rise to ill-treatment could lead to torture, therefore the measures required to prevent torture must be applied to prevent ill-treatment.”19 a. distinguishing torture from cidt to understand how the distinguishing approach works, we need to turn to the definition of torture in article 1 of cat: torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. article 1 definition encompasses two elements that have been used to distinguish torture from “cidt.” those elements are: severity of pain and purpose. 17 id. art. 16. 18 supra-note 11, at 277-78. 19 u.n. comm. against torture (cat), convention against torture and other cruel, inhuman or degrading treatment or punishment, general comment 2: implementation of article 2 by state parties, 3, u.n. doc. (nov. 23, 2007). towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 39 1. severity of the pain in torture the pain must be severe. accordingly, the severity of the pain inflicted on the victim is what distinguishes torture from other forms of ill-treatment.20 this approach was adopted by the ecthr in the case of ireland v. united kingdom. in this case, the court found five interrogation techniques used in 1972 by the british security forces against ira suspects to be inhuman and degrading, but not torture.21 the severity test was formulated as follows: “admittedly the word ‘torture’ included in article 3 of the convention is not capable of an exact and comprehensive definition. it is undoubtedly an aggravated form of inhuman treatment causing intense physical and/or mental suffering.”22 based on this test, the ecthr concluded that the interrogation techniques used by the british security forces were only inhuman and degrading because they did not deserve the “special stigma” reserved to torture.23 the severity test was also adopted by the interamerican court of human rights (iacthr),24 and apparently by the african commission of human and people’s rights.25 while the ecthr still maintains that the severity of the pain is the decisive criterion for distinguishing torture from other forms of ill-treatment, in recent cases it has incorporated “purpose” as an additional distinguishing criterion. for example, in cirino and renne v. italy the ecthr stated that in addition to the severity of the treatment, there is a purposive element to torture, as recognized in article 1 of torture convention.26 20 this view was incorporated in the 1975 united nations declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment. g.a. res. 3452 (xxx) (dec. 9, 1975). according to article 1(2) of the declaration, “torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.” id. annex, art. 1(2). 21 ireland v. united kingdom, app. no. 5310/71 eur. ct. h.r., (jan. 18, 1978) para. 246. the five techniques were hooding, wall standing, deprivation of food and drink, deprivation of sleep, and subjection to loud noise, in combination, but for less than twenty four hours. 22 id. para. 168. 23 id. para. 246. 24 see lizardo cabrera v. dominican republic, case 10.832, inter-am. comm’n h.r., report no. 35/96, oea/ser.l/v/ii.98, doc. 6 rev., 82-83 (1998). see also loayza-tamayo v. peru, merits, para. 57 (inter-am. ct. h.r. sept. 17, 1997). 25 see int’l pen ex rel. saro-wiwa v. nigeria, communications 137/94, 139/94, 154/96 and 161/97, african commission on human and peoples’ rights [afr. comm’n h.p.r.] (oct. 31, 1998). see also huri-laws v nigeria (2000) ahrlr 273 (achpr 2000)(para 41). 26cirino and renne v. italy, applications nos. 2539/13 and 4705/13, eur. ct. h.r (26 october 2017). sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 40 2. purpose article 1 of the cat requires that there be a purpose of a certain type for ill-treatment to amount to torture. the article includes the following prohibited purposes: extracting a confession; obtaining information from the victim or a third person; punishing the victim; intimidating or coercing the victim; and any other purpose of a discriminatory nature.27 article 1 also includes the term “for such purposes as,” indicating that the list of purposes is non-exhaustive. the purpose criterion was partly adopted by (now defunct) european commission in 1969 in a case brought against the greek military government.28 in interpreting article 3 of the echr, the european commission took the view that: “the word “torture” is often used to describe inhuman treatment which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment and it is generally an aggravated form of inhuman treatment.”29 manfred nowak, the former un special rapporteur on torture, claims that a thorough analysis of the travaux préparatoires of cat and its systematic interpretation by the committee against torture lead to the conclusion that the decisive criteria for distinguishing torture from “cidt” is the purpose of the conduct and the powerlessness of the victim.30 nowak assumes that cat distinguishes between situations under which the intentional infliction of pain by state agents is absolutely prohibited and other situations in which it is allowed within legal limits.31 the first type of situations is exemplified in article 1 of cat, which prohibits the use of force for the achievement of certain purposes (such as extracting confessions, intimidations, etc.). article 1 focuses on powerless victims, i.e. victims who are under the direct control of the state.32 however, cat does not prohibit in absolute terms the infliction of pain by state agents outside the context of article 1. state agents are allowed to inflict pain to execute arrest warrants, to prevent crimes, to quiet riots, etc. in these scenarios the victim is not under the direct control of the state. the use of violence in such cases must meet the requirements 27 see article 1 of cat, supra-note 3. 28 denmark, norway, sweden and netherlands v. greece, app. nos. 3321/67, 3322/67, 3323/67, 3344/67, 1969 y.b. eur. conv. on h.r. 186 (eur. comm’n on h.r.). 29 id. at 186. 30 manfred nowak (rapporteur on torture and other cruel, inhuman or degrading treatment or punishment), study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, para. 187, un doc. a/hrc/13/39/add.5 (feb. 5, 2010). 31 id. 32 nowak, m., mcarthur, e. and buchinger, k., 2008. the united nations convention against torture: a commentary . oxford: oxford university press, pp. 68-69. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 41 of necessity and proportionality. if the pain resulting from the use of violence violates these two principles, the act could be classified as “cidt.”33 nowak believes that the “powerlessness of the victim” explains the decision of the un committee against torture in hajrizi dzemajl et. al. v. yugoslavia.34 this case analyzed the legal implications of a racist pogrom against a roma settlement causing intense fear and mental suffering for the victims, with the acquiescence of police officers.35 the committee considered the claims of the applicants only under article 16 of cat and not under article 1 perhaps because the victims of the pogrom were not under the direct control of the state.36 the purpose criterion was adopted by the drafters of the rome statute of the international criminal court (icc) as part of the elements of the crimes under the jurisdiction of the icc. what distinguishes both inhuman treatment and cruel treatment from torture as a war crime is the purpose criterion.37 however, both criteria “severity” and “purpose” are not sufficient to inform us about the conceptual differences between the terms collectively referred to as cidt. b. blurring the differences between the terms cruel, inhuman and degrading in t v. uk the ecthr attempted to sketch a definition for the term “inhuman treatment” as a treatment that was “premeditated”, and one that was “applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering.”38 this definition is a different articulation of the court’s previous rulings, according to which the distinction between torture and inhuman treatment “derives principally from a difference in the intensity of the suffering inflicted.”39 t v. uk further exacerbates the ambiguity of the term inhuman by introducing the word “premeditated” as opposed to “intentional” or “deliberate” infliction of pain. in recent years the ecthr was willing to discuss in more depth the term degrading treatment by elaborating on its connection to human dignity. however, the ecthr did not depart from its distinguishing approach in defining inhuman treatment. for example, in cirino and renne v. italy the ecthr stated that “it appears that it was the intention that the convention should, by means of such a distinction, attach a 33 id. 34 dzemajl v. yugoslavia, communication no. 161/2000, u.n. comm. against torture, u.n. doc. cat/c/29/d/161/2000 (nov. 21, 2002). 35 id. paras. 2.1-2.27. 36 id. para. 9.3. 37 int’l criminal court [icc], elements of crimes, icc-asp/1/3 (sept. 9, 2002). see art. 8(2)(a)(ii)-1; art. 8 (2) (a) (ii)-2; & art. 8 (2) (c) (i)-3. 38 t. v. united kingdom, app. no. 24724/94 eur. ct. h.r. (dec. 16, 1999), para. 69. 39 see, e.g., ireland v. united kingdom, supra-note 20, para. 167. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 42 special stigma to deliberate inhuman treatment causing very serious and cruel suffering”.40 in bouyid v. belgium the grand chamber of the ecthr declared that minor bodily injuries that do not involve serious physical or mental suffering cannot be described as inhuman or, a fortiori, torture, suggesting that the conceptual difference between torture and inhuman treatment should be reduced to quantitative difference in the pain inflicted on the victim.41 however, in bouyid the grand chamber was willing to go at length in explaining the centrality of human dignity in understanding degrading treatment, citing almost twenty international and regional human right instruments that refer to the concept of human dignity.42 in this case the grand chamber had to decide whether slaps inflicted on a minor and an adult in police custody violate article 3 of the echr. in determining the significance of a slap to the face, the grand chamber stated that “[a] slap to the face affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses …which are used for communication with others”43 the grand chamber further stated that “where an individual is deprived of his or her liberty … any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in article 3”.44 this ruling suggests that treating people as objects or as animals is degrading since such treatment is inconsistent with the demands of human dignity. at the same, the ecthr does not attempt to identify the particular link between inhuman treatment and human dignity or the link between the former and any other philosophical concept. the failure to identify clear conceptual differences between the terms “cruel,” “inhuman” and “degrading” has resulted in approaching these prohibitions in a holistic fashion. many times, supra-national institutions find a violation of the prohibition on cidt without referring specifically to any of its components, or they find an ill-treatment to be “cruel and inhuman” or “cruel and degrading”. for example, in linton v. jamaica, the un human rights committee (hrc) concluded that “the mock execution set up by prison warders and the denial of adequate medical care after the injuries sustained in the aborted escape attempt. . . constitute cruel and inhuman treatment within the meaning of article 7” without making any distinctions between the terms.45 in güler and öngel v turkey, the applicants participated in a demonstration in istanbul against the nato summit in the city. many police officers were deployed to police the demonstration. after a statement was read out, the demonstrators started to disperse. 40cirino and renne v. italy, applications nos. 2539/13 and 4705/13, eur. ct. h.r. (26 october 2017), para 74. 41 bouyid v belgium (application no 23380/09), eur. ct. h.r. (28 september 2015) [grand chamber]. 42 id. 43 id, para 104. 44 id, para. 100. 45 linton v. jamaica, communication no. 255/1987, ccpr/c/46/d/255/1987 (oct. 22, 1992), reprinted in rep. of human rights comm., para. 8.5, u.n. doc. a/48/40 (part ii) (1993). towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 43 however, a small group of protestors attacked the police with sticks and stones. in response, the police officers used tear gas and truncheons to disperse them. it was established that the applicants were arrested and beaten by the police even though they were not involved in the attacks. the ecthr ruled that that the injuries sustained by the applicants amount to “inhuman and degrading” treatment without explaining why in this instance ill-treatment amounts to both prohibitions.46 in ryabsev v. russia, the applicant alleged that he had been ill-treated during and after his arrest in a sting operation for robbery. as a result of this illtreatment the applicant sustained injuries to his scalp and to his hand and suffered a broken nose and a broken finger. the ecthr labeled this treatment as “inhuman and degrading”.47 in dushka v. ukraine, the 17-year-old applicant had been arrested and interrogated in relation to a robbery without the presence of his parents or a lawyer. he alleged that that he had been ill-treated by the authorities to coerce him to confess. while in custody, the applicant sustained bruises, abrasions and other injuries on various parts of his body, which could have been inflicted by multiple impacts with blunt objects. the court attached special importance to the fact that neither his parents nor a lawyer were informed of his arrest and labeled this treatment as contrary to article 3 of the echr.48 similar trends could be found in the jurisprudence of inter-american institutions. in maritza urrutia v. guatemala, the victim was detained arbitrarily. she was subjected to a series of ill-treatments. those included covering her head with a hood, being handcuffed to a bed in a room with the light on and the radio at full volume, being subjected to prolonged interrogations, being threatened with death and threats to torture her and kill her family members and forcing her to film an incriminating video. the iacthr labelled such treatment as “cruel and inhuman” without making any distinction.49 according to pinzón et. al. in most cases the iacthr declares that the treatment in question was contrary to article 5(2) of the american convention, “refraining from specifying the exact mode of treatment that has infringed the prohibition in that provision”.50 more puzzling is the labelling of a treatment as “inhuman or degrading.” for example, in van der ven v. the netherlands, the ecthr stated that the combination of routine strip-searches and other stringent security measures implemented in a high security 46 güler and öngel v turkey, applications nos. 29612/05 and 30668/05, eur. ct. h.r. (4 october 2011). 47 ryabtsev v. russia, application no. 13642/06, eur. ct. h.r. (14 november 2013), see also mcglinchey v. united kingdom, app. no. 50390/99 eur. ct. h.r. (apr. 29, 2003); and d.g. v. poland, no. 45705/07, eur. ct. h.r. (12 february 2013). 48 dushka v. ukraine, application no. 29175/04, eur. ct. h.r. (3 february 2011). 49 urrutia v. guatemala, merits, inter-am. ct. h.r. nov. 27, 2003. 50 pinzón, d.r. et. al, 2014. the prohibition of torture and ill-treatment in the inter-american human rights system: a handbook for victims and their advocates (vol. 2). omct handbook series vol. 2, p. 107. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 44 prison amounted to inhuman or degrading treatment in breach of article 3.51this suggests that inhuman and degrading are different terms even if the court is not willing to elaborate on this difference. one would expect supra-national criminal tribunals to dwell more on meaning of these prohibitions. after all, the principle of legality requires criminal prohibitions to be formulated with enough precision to enable the individual to foresee the legal consequences of her actions.52 but criminal tribunals too fail to meet this expectation. the international criminal tribunal for the former yugoslavia (icty) based its jurisprudence on the mistaken assumption that the terms cruel and inhuman are simply identical; furthermore, it opted for the “distinguishing approach” considering “severity” as the distinguishing criterion. in the simic case, the icty noted that it is “generally accepted that cruel and inhumane treatment is a lesser included offence of torture, and that the latter is considered lex specialis in relation to cruel and inhumane treatment.”53 in the delalić case, the icty defined inhuman treatment as “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.”54 in the same case, the icty declared that the offence of cruel treatment under common article 3 carries the exactly same meaning as inhuman treatment in the context of the “grave breaches” provisions of the gcs.55 the reluctance to distinguish between the various forms of ill-treatment seems to be deliberate. in its general comment no. 20 the hrc deemed it unnecessary “to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.”56 however, given the special stigma attached to torture that hrc stated “it is appropriate to identify treatment as torture if the facts so warrant”.57 51 van der ven v. netherlands, app. no. 50901/99 eur. ct. h.r. (feb. 4, 2003). 52 see for example sunday times v. united kingdom, app. no. 6538/74 eur. ct. h.r. (apr. 26, 1979). 53 prosecutor v. simic, case no. it-95-9-t, judgment, para. 71 (int’l crim. trib. for the former yugoslavia oct. 17, 2003). 54 prosecutor v. delalić, case no. it-96-21-t, judgment, para. 543 (int’l crim. trib. for the former yugoslavia nov. 16, 1998). 55 id. para. 443. 56 human rights comm., general comment no. 20: replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (art. 7), 44th sess. (march 10, 1992), published in compilation of general comments and general recommendations adopted by human rights treaty bodies, at 31, para. 4, u.n. doc. hri/gen/1/rev.1 (july 29, 1994). 57 hrc, giri v. nepal, comm. no. 1761/2008, para. 7.5. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 45 the reluctance to provide independent definitions for such abstract terms has resulted in the adoption of long lists of descriptive rules, lacking a clear conceptual thread linking them to the terms referred to as cidt.58 for example, in its concluding observation on the united states, the committee against torture noted that interrogation techniques involving sexual humiliation, “water boarding”, “short shackling” and the use of dogs to induce fear, constitute torture or cidt.59 in reviewing periodic reports by other state parties, the committee against torture expressed its concern over: flogging and amputation of limbs;60 low minimum age of criminal responsibility and detention of child offenders as young as seven years in specialized hospitals or social protection institutions;61 long term detention of asylum seekers while their asylum claims are considered;62 detention in a cell for twenty-two hours a day without meaningful activities to occupy the prisoner’s time;63 non-segregation of juvenile and adult prisoners, and non-segregation of male and female prisoners;64 incidents of bullying which cause self-harm and suicide in the armed forces;65 inappropriate use of chemical, irritant, incapacitating and mechanical weapons by law enforcement authorities in the context of crowd control;66 reprisals, intimidation and threats against persons reporting acts of torture or ill-treatment;67 prisoners having to pay for a portion of the expenses related 58 id, see also waldron, supra-note 10, at 276-319. 59 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, united states of america, para. 24, u.n. doc. cat/c/usa/co/2 (july 15, 2006). 60 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, yemen, para. 6, u.n. doc. cat/c/cr/31/4 (feb. 5 2004). 61 id. 62 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, latvia, para. 6, un doc. cat/c/cr/31/3 (feb. 5 2004). 63 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, croatia, para. 8, u.n. doc. cat/c/cr/32/3 (june 11, 2004). 64 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, bosnia and herzegovina, para. 14, u.n. doc. cat/c/bih/co/1 (dec. 15, 2005). 65 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, united kingdom of great britain and northern ireland, crown dependencies and overseas territories, para. 4, u.n. doc. cat/c/cr/33/3 (dec. 10, 2004). 66 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, canada, para. 4, un doc. cat/c/cr/34/can (july 7, 2005). 67 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, argentina, para. 6, u.n. doc. cat/c/cr/33/1 (nov. 10, 2004). sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 46 to their imprisonment;68 incidents of uninformed and involuntary sterilizations of roma women;69 the wearing of hoods or masks by officers effecting a forced deportation;70 the use of electro-shock stun belts and restraint chairs as methods of constraint;71 incommunicado detention of up to five days or longer;72 prolonged solitary confinement as a measure of retribution in prisons.73 however, as mentioned earlier, the adoption of such narrowly defined rules lacks any conceptual inquiries that link all rules to the prohibitions they are derived from. c. the development of jurisprudence that lacks sufficient reasoning the interpretative approach adopted by supra-national institutions has led to the emergence of jurisprudence that suffers from the absence of sufficient legal reasoning. cassese argues that the case law of the ecthr on the interpretation of “inhuman and degrading treatment” needs to be strengthened by avoiding making decisions that offer no substantial reasoning.74 waldron points out that in its jurisprudence the ecthr has established a set of principles, presumptions75 and benchmarks76 for identifying a breach of article 3 of the echr.77 the principles are usually repeated in most cases dealing with article 68 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, czech republic, para. 5, u.n. doc. cat/c/cr/32/2 (june 3, 2004). 69 id. 70 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, switzerland, para. 4, u.n. doc. cat/c/cr/34/che (june 21, 2005). 71 supra-note 58, para. 35. 72 consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, spain, para. 61, u.n. doc. a/58/44 (2003); consideration of reports submitted by states parties under article 19 of the convention, concluding observations and recommendations of the committee against torture, russian federation, para. 42, un doc. a/52/44 (1997). 73 supranote 58, para. 36. 74 cassese, a., 2008. the human dimension of international law: selected papers of antonio cassese. oxford university press, p. 329. 75 an example of a presumption is the following: [w]here an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the state to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under article 3 of the convention. see yavuz v. turkey, app. no. 67137/01 eur. ct. h.r., (jan. 10, 2006) para. 38. 76 benchmarks usually refer to those set by other regional agencies, such as the european committee for the prevention of torture and inhuman or degrading treatment or punishment. these benchmarks are adopted as guidelines by the ecthr, and they usually focus on physical conditions of prison cells, see supra-note 11. 77 supra-note 11, at 279. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 47 3 including, for example, that ill-treatment must attain a minimal level of severity to find a violation of article 3, and that severity is a relative concept depending on other factors such as age, sex and health. however, waldron highlights the following: no one spends much time reflecting on the meaning of the predicates that are incorporated in the article 3 standard […] the court simply announces its finding that certain practices are inhuman or degrading while others are not. or announces a principle that it is going to use in determining what is degrading or what is inhuman.78 the reluctance of human rights institutions to engage in a thoughtful reflection on the meaning of each of these prohibitions, referred to as cidt (especially the terms cruel and inhuman) could be attributed to two factors. first, it seems that supra-national institutions assume that defining these prohibitions would make them less flexible and would limit their scope. while this concern is legitimate, it erroneously assumes that defining such terms from would strip them from their evaluate power by converting them to largely descriptive rules. this approach does not assume that a middle ground is indeed possible. supra-national institutions can move from highly abstract language, such as the term inhuman treatment, to more precise definitions that still embody evaluative elements. this would guarantee the flexibility needed for an effective protection against ill-treatment; at the same time, it would facilitate the development of a coherent body of jurisprudence in applying such prohibitions. the immediate move from abstract norms to purely descriptive subsidiary rules without providing an intermediary definition is a recipe for arbitrariness. in his capacity as an independent expert of the united nations, philip alston warned about the growing inconsistencies in the evolving jurisprudence on the interpretation of the central human rights instruments.79 he attributes such inconsistencies to the following factors: the recent proliferation of human rights standards; the increasing range and depth of the activities of the policy-making organs; and the expanding number of treaty bodies. alston further warned that such inconsistencies could create confusion as to the “correct” interpretation of a given norm. this would result in “the undermining of the credibility of one or more of the treaty bodies and eventually a threat to the integrity of the treaty system.”80 beyond the ratification of international and regional human rights treaties, many states, mainly former british colonies in africa and commonwealth countries in asia, the caribbean, and the pacific, wrote international human rights norms into their bill of rights. long ago lillich pointed out that reference to international human rights norms is becoming a frequent factor in 78 id. at 287. 79 world conference on human rights, interim report of study on enhancing the long-term effectiveness of the united nations treaty régime, para. 238, u.n. doc. a/conf.157/pc/62/add.11/rev.1, annex (apr. 22, 1993). 80 id. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 48 constitutional decision making on a global scale. judges at the domestic level look to international and regional instruments and the decisions of committees, courts and commissions interpreting them.81 in this complex reality maintaining a normative consistency becomes more necessary and more challenging. while the prohibitions referred to as cidt are primarily associated with deprivation of liberty, they have been applied to other spheres including racial discrimination,82 house demolitions,83 and possibly to the failure to recognize sex change.84 cassese argued that such prohibitions should be utilized by the ecthr to address severe violations of social and economic rights so they can constitute a bridge between civil and political rights and the broad field of social and economic rights.85 given the ambiguity of such terms and the wide scope of their application, they become susceptible to incoherent instantiations. a list of descriptive rules can never provide meaningful guidance for domestic courts when confronted with a new practice that does not resemble any of the prohibitions on the list.86 this could lead to the emergence of contradictory case-law where the same practice is approved in one jurisdiction but outlawed in another. to avoid such a gloomy development, supra-national institutions must engage methodologically in conceptual arguments on the meaning of these prohibition that could serve as guiding principles in applying them coherently. the second factor that could explain the reluctance of supra-national institutions to define these prohibitions is the simple fact that the latter are hard to define. waldron distinguishes between three different types of language indeterminacy: ambiguity, vagueness, and contestability.87 he argues that the terms “cruel,” “inhuman” and “degrading” are all contestable.88 a phrase becomes contestable “when it is clear that it embodies a normative standard, but different users disagree about the detailed contents of that normative standard.”89 for example, the eighth amendment of the united states constitution, which prohibits cruel and unusual punishments, is a contestable standard. according to waldron, we all agree that punishments are inherently unpleasant; however, we tend to disagree on 81 lillich, r.b., 1995. harmonizing human rights law nationally and internationally: the death row phenomenom as a case study. . louis ulj, 40, p.699 82 see, e.g., cyprus v. turkey, app. no. 25781/94 eur. ct. h.r., (may 10, 2001). 83 see, e.g., dzemajl v. yugoslavia, supra-note 33. 84 see x v. federal republic of germany, app., no. 8041/77 eur. ct. h.r., (dec. 15, 1977), where the european commission on human rights declared admissible an application alleging a violation of article 3 of the echr due to the failure of the respondent state to recognize the sex change of the applicant. 85 cassese, a., 1991. can the notion of inhuman and degrading treatment be applied to socio-economic conditions. eur. j. int'l l., 2, p.141. 86 supra-note 11, at 289. 87 waldron, j., 1994. vagueness in law and language: some philosophical issues. cal l. rev., 82, p.509. 88 supra-note 10. 89 supra-note 86. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 49 how harsh punishments should be. but the term “cruel” is contestable because we also disagree on “whether cruelty is simply a matter of the intensity of the suffering, or whether it also refers to the malice, inhumanity, or disrespect with which the suffering was inflicted”.90 still, waldron refuses to dismiss such prohibitions altogether. he rightly claims that many cases involving ill-treatment can be clearly classified as cruel. for example, no one doubts that burning people alive is a cruel, even though we might disagree on whether other methods of execution fall under this category.91 in xuncax v. gramajo, a united states district court followed this approach. while the court recognized that the prohibition on cidt poses more complex definitional problems compared to torture, it emphasized that “[i]t is not necessary that every aspect of what might comprise a standard such as ‘cruel, inhuman or degrading treatment’ be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law.”92 on the face of it, the indeterminacy of the term inhuman seems inconsistent with the principle of the rule of law. while its meaning and scope are controversial, the law’s predictability and the law’s ability to guide human behavior run as a common thread in the writings of theorists who have explored the concept of the rule of law.93 in his famous work “the morality of law” lon fuller claims that the inner morality of the law requires making rules coherent, clear, and practicable. the failure to do so amounts to failure in creating and maintaining a legal system.94 the clarity of the law is one of the most essential ingredients of legality.95 however, no conception of the rule of law can deny that in certain cases the highest degree of precision is impossible or even undesirable. fuller acknowledges that we can never be “more exact than the nature of the subject matter with which we are dealing with admits. a specious clarity can be more damaging that an honest openended vagueness”.96 when the provisions of the first international bill of rights were debated by the newly established united nations, some states objected the inclusion of vague terminology such as “inhuman” in a legally binding treaty. in response to such criticism, charles malik, the rapporteur of the drafting committee of the udhr emphasized that given the unprecedented and shocking atrocities committed by the nazis, it was better to run the risk of being vague than of being too particular in condemning such acts.97 a similar position is found in the commentary on common art. 3 of the geneva conventions. the commentary 90 id. at 528. 91 supra-note 10, at 535. 92 xuncax v. gramajo, 886 f. supp. 162, 186 (d. mass. 1995), at 187. 93 see hayek, f.a., 2006. the road to serfdom (routledge classics); fuller, l.l., 1969. the morality of law (vol. 152). yale university press; finnis, j., 2011. natural law and natural rights. oxford university press and; waldron, j., the rule of international law’ (2006). harvard journal of law and public policy, 30, p.15. 94 l. fuller, id. 95 id. 96 id, at 64. 97 un doc. e/cn.4.ac.1.sr.23, p. 3. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 50 stipulates “one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes”.98 while the use of abstract language for prohibiting different forms of ill-treatment could be reconciled with the rule of the law, there is another aspect of the rule of law that comes into play in interpreting and applying such prohibitions. waldron points out that a separate current of thought in the rule of law tradition puts an emphasis on its procedural aspects. according to this view, the rule of law is not just about general rules, it is also about their impartial administration. the procedural side of the rule of law requires public institutions to sponsor and facilitate reasoned arguments in human affairs, and to allow people to have a say in confronting power.99 the procedural aspect of the rule of law values opportunities for active engagement in the administration of public affairs. when referring to legal norms waldron states: “we don’t just obey them or apply the sanction that they ordain; we argue over them adversarially, we use our sense of what is at stake in their application to license a continual process of argument back and forth, and we engaged in elaborate interpretive exercises about what it means to apply them faithfully as a system to cases that come before us”.100 elsewhere, waldron states that “a philosophy of law would still be impoverished if it paid no attention to the defining role of law’s aspiration to coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining that consistency and in bringing it to bear in the application of norms to particular cases”.101 brugger distinguishes between legal coherency and ethical coherency. legal coherence entails that all provisions of the law, its purposes, principles and rules form a bond of unity. as a minimum, provisions of law should avoid contradiction.102 ethical coherence requires a convincing or at least plausible interpretation of the social and political values that are referred to in legal provisions.103 any legal interpretation must take both the law and the real world seriously, because a judgment that does not make sense in the real world we live in is an unsound judgment.104 according to brugger, a persuasive interpretation “should strive to integrate the ideals of systemic consistency, social congruence, and stability of doctrine over time”.105 98 pictet, j. ed., 1952. the geneva conventions of 12 august 1949: geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field (vol. 1). international committee of the red cross. 99 waldron, j., the concept and the rule of law” (2008) 43. ga l rev, 1, p.1. 100 waldron, j., 2011. the rule of law and the importance of procedure. nomos, 50, pp.3-31, p. 20 101supra-note 98, p. 61. 102 brugger, w., 1994. legal interpretation, schools of jurisprudence, and anthropology: some remarks from a german point of view. am. j. comp. l., 42, p.395. 103 id, at 413. 104 id. 105 id, at 414. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 51 applied to the context of cidt, the immediate move from abstract language to purely descriptive rules impedes us from reflecting on the moral principles embodied in these prohibitions, and prevents us from augmenting on their relevance to the world we live in. waldron rightly claims that an exclusive focus on subsidiary rules diminishes the moral arguments embodied in these prohibitions.106 furthermore, this approach is inconsistent with the notion of ethical coherence too. with time, and with the expansion of the lists of subsidiary rules, every objectionable treatment could become inhuman, even if in ordinary life such treatment is not perceived as sufficiently grave to be labeled inhuman. this would diminish even further the moral authority of this term, which was incorporated into international human rights instruments as a response to gross violations of human rights. iii. towards unfolding the meaning of inhuman treatment according to article 31(1) of the vienna convention: “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”107 courts had resorted to dictionaries when this methodology was found useful for interpreting legal norms.108 unfolding the word-meaning is only the first step in the quest for moral and legal meanings. the words themselves can help us identify the moral principles and the distinct evaluations that are at stake. a. inhuman treatment: an introduction the oxford english dictionary (oed) online defines “inhuman” when applied to persons as “[n]ot having the qualities proper or natural to a human being; esp. destitute of natural kindness or pity; brutal, unfeeling, cruel.”109 when applied to actions or conduct, inhuman means “[b]rutal, savage, barbarous, cruel.” inhuman also means “[n]ot pertaining to or in accordance with what is human, in form, nature, intelligence, etc”. this definition encompasses both an agent-oriented approach and a victim-oriented approach.110 the former focuses on the mental disposition of the agent inflicting inhuman treatment, while the latter focuses on what objectively happens to the victim.111 106 supra-note 11, at 289. 107 supra-note 14. 108 see for example the delalić case, supra-note 53, para. 518. 109 oed online. march 2017. oxford university. 110 supra-note 10 at 303. 111 id. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 52 1. the agent-oriented approach an example of the agent-oriented understanding of the term inhuman is found in the dance of the devils case, where the german federal constitutional court interpreted inhuman as follows: the offense element “inhuman” is supposed to express the idea that action is taken with a cast of mind which shows contempt for humanity, or is inconsiderate, callous or merciless… perhaps because it is gives the perpetrator satisfaction to mistreat or kill human beings completely unscrupulously and in cold blood.112 the separate opinion of judge fitzmaurice in ireland v. uk provides another example: [t]he concept of “inhuman treatment” should be confined to kinds of treatment that. . . no member of the human species ought to inflict on another, or could so inflict without doing grave violence to the human, as opposed to animal, element in his or her make-up.113 fitzmaurice’s approach reflects both agent-oriented approach and victim-oriented approach because it refers to the moral defect in the person inflicting the ill-treatment and to treatment that cannot be inflicted a human being (as opposed to cruelty to other creatures).114 2. the victim-oriented approach the victim-oriented approach seems more appropriate for defining inhuman treatment since the prohibition on cruel treatment is a better candidate for capturing the moral defect in the person inflicting the ill-treatment.115 the oed defines cruelty as, inter alia, “disposition to inflict suffering; delight in or indifference to the pain or misery of others; mercilessness”. but how can we strip humans from their humanity? hannah arendt suggests that we strip people from their humanity by diminishing their capacity for spontaneous action.116 in 112 bverfge 87, 209 (october 29, 1992), as quoted in dubber, m. and hörnle, t., 2014. criminal law: a comparative approach. oxford university press, p. 92. 113 supra-note 20, para. 26. 114 supra-note 11, at 305. 115 for on the meaning of cruel treatment see supra-note 12. 116 arendt, h., jaspers, k., köhler, l. and saner, h., 1992. hannah arendt/karl jaspers correspondence, 19261969. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 53 describing radical evil, arendt suggests that it is about the destruction of the capacities of humans as we know them.117 suffering “is not the issue, nor the number of victims. human nature as such is at stake.”118 suffering is just an instrument for controlling the unpredictability which forms part of inmates’ nature.119 waldron defines “inhuman treatment” as “treatment which cannot be endured in a way that enables the person suffering it to continue the basic elements of human functioning.”120 those include self-control, rational thought, care of self, the ability to interact with others, the need to sleep, to defecate or urinate, the need for daylight and exercise and so on.121 here too the term ‘inhuman’ plays a normative role; it represents a contestable standard on what we consider as an elementary human functioning.122 however, waldron does not elaborate further on the notion of basic elements of human functioning. he immediately suggests a list of such functionings. in the absence of minimal inquiry into the notion of human functioning, his project too faces the risk of being converted into a list of subsidiary rules. b. human well being, human functioning and the capability approach the notion of human functioning is discussed extensively in the literature on the “capabilities approach”; some leading scholars such as martha nussbaum have attempted to articulate a list of basic human capabilities. 122f 123 the notion of human capabilities was first introduced by amartya sen, who provided its framework largely in the 1980s and 1990s.123f 124 the capability approach initially emerged in the field of development. robeyns provides a good summary of sen’s work: well-being and development should be conceptualized in terms of people’s capabilities to function, in other words, their effective opportunities to pursue the actions and the activities that they want to engage in and to be whoever they want to be.124f 125 those functionings constitute what makes a life valuable. functionings include working, being healthy, being literate, being part of a community, resting, being respected, and so forth. the gap between achieved functionings and human capabilities is a gap between the realized and the effectively possible, or between achievements and larger freedoms. the ultimate goal must be enhancing human capabilities, so people can lead a life that they truly 117 auestad, l., 2005. plurality and human dignity. nordisk tidsskrift for menneskerettigheter, 23, p.261. 118 arendt, h., 1973. the origins of totalitarianism (vol. 244). houghton mifflin harcourt, p. 458-59. 119 supra-note 116, at 264. 120 supra-note 11. 121 id 122 id. 123 nussbaum, infra-note 135. 124 sen, a., 2014. development as freedom (1999). roberts, jt, hite, ab & chorev, n. the globalization and development reader: perspectives on development and global change, 2, pp.525-547. 125 ingrid robeyns, the capability approach: a theoretical survey, 6 journal of human development 93 (2005). sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 54 desire. once they possess these capabilities, they can choose to act on them in line with their own conception of the good life.126 according to nussbaum, in the capabilities approach we focus on “a variety of functions that would seem to be of central importance to a human life.”127 nussbaum’s views on capabilities are intimately tied to the notion of human dignity, and to the conception of a life that is worth living.128 according to nussbaum, dignity “is closely related to the idea of active striving”.129 it is an innate potential that deserves to be developed; it is about the existence of minimal agency.130 even the decay of the body cannot take away active striving and minimal agency. unlike the kantian approach to human dignity, which bases human dignity entirely on rationality, nussbaum perceives human beings as inherently animals and a as members of the natural world. therefore, human dignity is marked by “sentience, emotion, affection, physical health, and appetite as well as … rationality”.131 even human beings with severe cognitive disabilities or those who possess a minimal level of sentience and striving are full equals in human dignity, and an attack on any of the elements that mark human dignity is an assault on human dignity.132 kittay criticizes the concept of dignity adopted by nussbaum since it weakens the attribution of dignity to people in a permanent vegetative condition, or to anencephalic infants. kittay suggests base human dignity not on minimal agency but on the capacity to care and be cared for.133 nussbaum’s articulation of the capability approach is based on aristotelian philosophy, i.e. on an essentialist view of human life as encompassing central defining features of basic human needs and human functions.134 the idea behind nussbaum’s approach to capabilities is twofold. first, there are certain functions that are essential in human life. having these capabilities makes life worthy of the dignity of the human being. second, humans must be able to perform these functions in a truly human way, as opposed to animal way.135 nussbaum identifies ten basic human capabilities which constitute central requirements of a life with dignity. nussbaum emphasizes: “[w]e are not pretending to 126 id. 127 nussbaum, m.c., 1997. capabilities and human rights. fordham l. rev., 66, p.273. 128 nussbaum, m., 2000. women's capabilities and social justice. journal of human development, 1(2), pp.219247. 129nussbaum, m.c., 2011. creating capabilities. harvard university press., p. 31. 130 id. 131 dixon, r. and nussbaum, m.c., 2011. abortion, dignity and a capabilities approach, p. 5. 132 id. 133 kittay, e. (2005). equality, dignity and disability. in m. a. waldron & f. lyons (eds.), perspectives on equality: thesecond seamus heaney lectures (pp. 95–122). dublin: lifey 134 nussbaum, m.c., 1992. human functioning and social justice: in defense of aristotelian essentialism. political theory, 20(2), pp.202-246. 134 nussbaum, m., 2000. women's capabilities and social justice. journal of human development, 1(2), pp.219247. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 55 discover some value-neutral facts about ourselves, independently of all evaluation; instead, we are conducting an especially probing and basic sort of evaluative inquiry.”136 1. ten basic capabilities the ten central human capabilities are: life: being able to live a human life of normal length; not dying prematurely, or to live a life that is not reduced to the point of being not worth living.137 bodily health: being able to enjoy a good health; to be adequately nourished; to have adequate shelter.138 bodily integrity: being able to move freely; freedom from violence, including sexual assault and domestic violence; having opportunities for sexual satisfaction and freedom in matters of reproduction.139 senses, imagination, and thought: being able to use the senses, to imagine, think, and reason —and most importantly to do so in a “truly human” way, a way which is cultivated by proper education. being able to use imagination and thought to experience and produce works and events of one’s own choice whether religious, literary, musical, and so forth. being able to use one’s mind in ways protected by freedom of expression. being able to have pleasurable experiences and being able to avoid nonbeneficial pain.140 emotions: being able to have attachments to things and people outside ourselves; to love, to grieve, to experience longing, gratitude, and anger. not having one’s emotional development suppressed by fear and anxiety.141 practical reason: being able to form a conception of the good life and to engage in critical evaluation of our plans of life. this entails protection of freedom of thought and religious liberties.142 135 supra-note 133, p. 214. 136 nussbaum, m., 2003. capabilities as fundamental entitlements: sen and social justice. feminist economics, 9(2-3), pp.33-59. p. 41. 137 id. 138 id. 140 id. 141 id. 142 id. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 56 affiliation: being able to live and socialize with others, to show concern for other human beings; to be able to identify with the situation of another. protecting this specific capability requires the protection of institutions and freedoms that constitute and nourish such forms of affiliation. having the social bases of self-respect and non-humiliation; being treated in a dignified way; the recognition of our equal worth as human beings. this entails provisions of non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin.143 other species: being able to live with concern for and in relation to animals, plants, and the world of nature.144 play: being able to laugh, to play, to enjoy recreational activities.145 control over one’s environment: a. political control: being able to participate effectively in political choices that govern one’s life; having the right of political participation, protections of free speech and association. b. material control: being able to hold property and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. in work, being able to work as a human being, exercising practical reason, and entering into meaningful relationships with other workers.146 nussbaum acknowledges that her list is not exhaustive and needs an ongoing revision and supplementation. since she is committed to pluralism, the components of nussbaum’s list are deliberately specified in somewhat abstract manner in order to facilitate further deliberations and specification by different constituencies and their democratic institutions.147 nussbaum’s list bears resemblance to other scholarly works that inquire into the concept of the human well-being. for example, finnis identifies seven basic forms of human good that are central for the human well-being, and serve the goal of human flourishing.148 according to finnis the inquiry into the basic aspects of human well-being is an inquiry into human nature.149 finnis assumes that his own inquiry into basic forms of human good parallels the inquiries of anthropologists and psychologists into a possible human nature and its characteristics.150 the seven basic forms of goods identified by finnis 143 id. 144 id. 145 id. 146 id. 147 id. 148 john finnis, supra-note 92. 149 id. 150 id. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 57 include: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion.151 in offering an account of substantive well-being griffin introduces the following five components: accomplishment, or as he puts it “doing in the course of one’s life the sort of things … that give it weight or point;152 deep personal relations;153 enjoyment;154 understanding, which means “knowing about oneself and one’s place in the universe”;155 and the components of human dignity, which include living as a rational agent and “being able to pursue a course through life chosen by oneself”.156 2. capabilities v. functionings according to nussbaum, functionings are what render a life fully human.157 but since capabilities are preconditions for citizens’ freedom to determine their course of action, they should be society´s political goal. to illustrate this point, nussbaum claims that a person who has normal opportunities for sexual satisfaction can freely choose celibacy and that would not pose a moral problem. however, the practice of female genital mutilation, which deprives its victims the opportunity to choose sexual functionings, should worry us due to its impact on future functionings of the victim.158 nussbaum distinguished between three layers of capabilities. the first layer is the basic capabilities; those are “the innate equipment of individuals that is the necessary basis for developing the more advanced capabilities.”159 certain basic capabilities are ready to function, such as the ability to see or to hear.160 but other capabilities, such as imagination and practical reason, cannot be directly converted into functioning; their future exercise depends on other factors such as education and development in other areas.161 when basic capabilities are not nourished and transformed into higher-level capabilities, human beings become “fruitless, cut off, in some way but a shadow of themselves”.162 the second layer is 151 id. at 86-90. 152 griffin, j., 2002. a note on measuring well-being james griffin. summary measures of population health: concepts, ethics, measurement and applications, p.129, 130. 153 id. 154 id. 155 id. 156 id. 157 supra-note 126, at. 289. 158 id. 159 nussbaum, m.c., 2001. women and human development: the capabilities approach (vol. 3). cambridge university press, p. 84. 160 id. 161 id. 162 nussbaum, m., 1995. human capabilities, female human beings. women, culture and development: a study of human capabilities, pp.61-104, p. 88. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 58 the internal capabilities; those are “states of the person herself that are, so far as the person herself is concerned, sufficient conditions for the exercise of the requisite functions.”163 internal capabilities reflect “mature conditions of readiness”.164 the readiness to exercise certain capabilities requires bodily maturity. for example, sexual functioning requires growing up. other capabilities require support from and interaction with the surrounding environment for their development, such as the ability to exercise political choice.165 at a certain point these capabilities become present, and the individual can use them whenever she wants. for example, most adult human beings have the internal capability to use speech and thought in accordance with their own conscience.166 the third layer is the combined capabilities, which are “internal capabilities combined with suitable external conditions for the exercise of the function.”167 nussbaum emphasizes that exercising capabilities does not only entail developing basic ones, it also entails “preparing the environment so that it is favorable for the exercise of practical reason and the other major functions”.168 for example, citizens of oppressive regimes have internal capabilities of freedom of speech, but they lack the combined capability to exercise political freedom of speech.169 the aim of public policy should be the production of combined capabilities. states need to provide the necessary education and care, and they need to foster an environment that it is favorable for the exercise of major functions. c. inhuman treatment framed within the framework of capabilities capabilities and human rights in general are intimately related. the language of capabilities can provide more precision and supplement the abstract language of rights. nussbaum claims that “difficult theoretical questions are frequently obscured by the use of rights language, which can give the illusion of agreement where there is deep philosophical disagreement.”170 therefore, a different language has emerged for articulating people’s basic entitlements such as the language of capabilities.171 if inhuman treatment means a treatment which disables the victim to perform basic human functioning, the list articulated by nussbaum provides a promising guidance.172 unlike the arbitrary fashion in which subsidiary rules were adopted by human rights institutions, nussbaum’s list is theoretically solid, and it is derived from a particular understanding of the notion of a dignified life. it should be noted 163 supra-note 158, at 84. 164 id. 165 id. 166 id. 167 id. 168 id. 169 id, at 85. 170 supra-note 136, at 37. 171 supra-note 126, at. 275. 172 supra-note 10. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 59 that the examples provided by waldron, such as: rational thought, care of self, ability to speak and converse and so forth resonate with nussbaum’s list of basic capabilities.173 in what way does inhuman treatment harm human capabilities? deprivation of liberty inherently reduces the combined capabilities of inmates. the limited contact with the outside world and the limited freedom of movement available to inmates constitute a serious obstacle in exercising certain internal capabilities. however, the prohibition on inhuman treatment is not meant to capture acceptable harms inherent in lawful deprivation of liberty. inhuman treatment must capture objectionable and serious forms of harm inflicted on the human person. nussbaum argues that “even a highly trained capability can be thwarted”.174 material and social factors play a twofold role in shaping capabilities: first, they train internal capabilities, and second they allow internal capabilities to express themselves once they are trained.175 a change in material and social conditions could have a negative impact both on training and expressing capabilities. nussbaum emphasizes that it is not always easy to distinguish between harming a combined capability and harming an internal one.176 to help us draw the distinction, she suggests that an abrupt change in material and social environment usually reduces combined capabilities; however, “persistent deprivation affects the internal readiness to function”.177 the prohibition on inhuman treatment should capture the latter situation in which environmental factors cause regression in internal capabilities. another distinction articulated by nussbaum helps linking regression in internal capabilities with the concept of inhuman treatment. nussbaum distinguishes between two thresholds of capability to function. the first threshold marks the line of capability to function beneath which a human life becomes so impoverished to the point it no longer merits to be labeled “human”.178 this includes human beings who live in a permanent vegetative condition, and situations where the individual losses the capacity to recognize loved ones, to think and to reason. it could also include a severe absence of mobility that impairs speech and movement.179 a second threshold is somewhat higher, beneath which we do recognize the existence of a human life, but we would not judge it as a good life in the aristotelian sense because the human functions are still reduced.180 applying these nuanced differences to the term inhuman treatment, the latter should capture situations where the regression in the internal capabilities, due to human induced conditions, bring the person closer to the first threshold. cassese, a vocal critic of the practice 173 id, see also supra-note 136. 174 supra-note 158, at 84. 175 id, at 86. 176 id. 177 id. 178 id. 179 id. 180 id. sonia boulos the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 60 of prolonged solitary confinement, used the language of capabilities to articulate the harms associated with this practice: we could now hear a constant hiss, produced by the air conditioner . . . apart from the hiss, there was absolutely no other noise ... the murderer was kept in total acoustic isolation… one might have been buried in a tomb . . . we asked him if he ever spoke to anyone… [the prisoner was allowed] half an hour’s “airing” a day, in a kind of metal cage in the open air, where he could walk up and down, all on his own… the prisoner never saw his relations… he had spent five or six years in that cell, ruminating his unhappy thoughts and had no idea whether he would be there for life. he had not yet passed over from the animal to the vegetable kingdom, but we got an idea of his future condition on entering another cell, where the prisoner. . . had been kept for seven years. he lay on his bed, as pale as a ghost, moaning incomprehensible words. the only thing we understood was a faint “no” when we asked if we were disturbing him and if he preferred to be left alone. he started and trembled at the slightest noise, however imperceptible, which we made while we stayed in the cell.181 cassese talked about the “gradual diminishment” of humanity, and of “state of larvae, where the self is expressed in repetitive physical gestures, until what little, or great, humanity the prisoner possessed… perishes slowly until it disappears completely”.182 not only this language describes the reduction of the internal capabilities, it also depicts a person being pushed closer to the first threshold of capabilities. one question remains unanswered: is “intent” a mandatory definitional element of the prohibition on inhuman treatment? in inhuman treatment the primary focus is on the ability of the person to exercise basic human functionings. if the living conditions imposed on a detainee diminish her internal capabilities and bring her close to the first threshold, the lack of intent to cause such damage is immaterial. inhuman treatment understood as destruction or reduction of internal human capabilities captures a sort of damage to the human person that is of an accumulative nature. when applied to the context of deprivation of liberty, people do not lose their ability to reason, to converse, and so forth in one strike; usually, this sort of damage occurs gradually over time even if there is no intentional policy to cause such damage. therefore, the intention (or lack-of) of those responsible for the imposition of such conditions is less relevant. the exclusion of intent from the definition of “inhuman treatment” is also consistent with the spirit of human rights law. unlike 181 cassese, a., 1996. inhuman states: imprisonment, detention and torture in europe today. blackwell publishing, p. 56-57. 182 id, at 55. towards reconstructing the meaning of inhuman treatment or punishment: a human capability approach the age of human rights journal, 12 (june 2019) pp. 35-61 issn: 2340-9592 doi: 10.17561/tahrj.n12.3 61 international criminal law, which focuses on individual criminal responsibility,183 human rights law focuses primarily on the legal obligation of states to respect, protect and promote human rights.184 generally speaking, international human rights law does not focus on the intentions and the motives of state agents who violate international law obligations of states. only when the prohibition is invoked in the realm of international criminal law, intention becomes central for its application. iv. conclusion the aim of this article is to criticize the jurisprudence of supra-national institutions for its failure to define the prohibition on “inhuman treatment.” the article argues in its first part that the reluctance of supra-national institutions to provide a conceptually independent definition for inhuman treatment has impoverished the latter’s conceptual richness and moral authority. in its second part, the article attempts to regain the conceptual independence of the term by suggesting a definition that makes inhuman treatment clearly distinguishable from its other kin prohibitions. to reconstruct the meaning of the term “inhuman”, the article introduces the “capability approach” and the notion of human functioning as keys for rediscovering the essence of the prohibition. nussbaum’s capabilities approach, in particular, provides a solid theoretical framework that gives more precision to the term inhuman, without stripping it from its evaluative nature. finally, the article suggests defining the term “inhuman treatment” as a treatment that diminishes or reduces the internal capabilities of the human person. 183 for example, according to article 30 of the rome statute a person shall be criminally liable of a crime only if its material elements are committed with intent and knowledge. 184 the un human rights committee. general comment no. 31 “the nature of the general legal obligation imposed on states parties to the covenant” (29/3/2004). un doc. ccpr/c/21/rev.1/add. 1326, see also waldron, supra-note 74. i. introduction ii. inhuman treatment in the jurisprudence of supra-national institutions a. distinguishing torture from cidt 1. severity of the pain 2. purpose b. blurring the differences between the terms cruel, inhuman and degrading c. the development of jurisprudence that lacks sufficient reasoning iii. towards unfolding the meaning of inhuman treatment a. inhuman treatment: an introduction 1. the agent-oriented approach 2. the victim-oriented approach b. human well being, human functioning and the capability approach 2. capabilities v. functionings c. inhuman treatment framed within the framework of capabilities iv. conclusion the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 34 disability and humans rights: a theoretical analysis patricia cuenca gómez 1 abstract: since enlightenment, theories of justice and, in particular, theories of human rights have been based on principles which are excludable for people with disabilities. the exclusion has not been resolved by contemporary theories of justice. a profound review of some basic assumptions is required to get a full and sound theory of human rights including people with disabilities in equal terms. the inclusion of people with disabilities is an urgent theoretical challenge which must be face in order to perform a sound reform of rules in legal practice. keywords: disability, theory of human rights, theory of justice. summary: i. introduction; ii. disability approach in the contemporary theory of human rights; ii.1.the approach on disability in rawls´s theory; ii.2.the approach on disability in nussbaum’s theory; iii. reviewing the human rights theory in inclusive terms for people with disabilities; iii.1.reviewing the importance of disability; iii.2.reviewing the approach; iii.3.the review conceived as a consistent extension and reformulation; iii.4.reviewing the notion of dignity; iii.5.reviewing the role and the notion of autonomy; iv. a final thought: the connection between the theory and the practice of human rights. i. introduction disability is usually now understood to be a human rights issue. in the international landscape this consideration has been clearly reflected in the convention on the rights of persons with disabilities 2 . this convention is a challenge for the national legislation that has not yet incorporated or developed all the implications resulting from understanding disability from the human rights perspective 3 . the reflection developed in the following pages is derived from the premise that the consideration of disability as a human rights issue not only calls for substantial modifications to the legislation but is also challenging and requires a thorough revision from the moral theory perspective. the theoretical discourse on human rights has been 1 department of public international law, ecclesiastical law and philosophy of law. human rights institute “bartolomé de las casas”, universidad carlos iii de madrid (pcuenca@der-pu.uc3m.es). 2 adopted by the general assembly of the united nations on 13th december 2006 and entered into force on 3rd may 2008. see on this treaty palacios and bariffi, 2007. 3 an analysis of the overall impact of the convention in the spanish legislation may be found in cuenca gómez, 2010. mailto:pcuenca@der-pu.uc3m.es patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 35 built upon some references whose "standard" interpretation ultimately excludes sometimes in a more direct manner and alluding to other approaches more subtly people with disabilities, particularly (but not only) people with psychosocial and intellectual disabilities. in my view, the reformulation of this discourse in inclusive terms requires its adaptation to the situation of persons with disabilities and compels us to re-examine the interpretation of its basic assumptions. ii. disability approach in the contemporary theory of human rights the theories of justice, in general, and the theories of human rights, in particular, have not addressed disability sufficiently (de asís, 2007) and when they have tackled this issue it has been in an inappropriate manner. people with disabilities and particularly people with cognitive disabilities have been treated in the theory of human rights as exceptions, as marginal cases or as examples and even, at times, they have been used in the other subject matters –for example in the case of the rights of nonhuman animals (singer, 2010 and mcmahn, 2010)– regardless of the damage, which basically consists of lowering their moral status in relation to people with standard cognitive skills, which may result from this use (carlson 2010: 317-318). in any case, the application of what is considered to be the standard theory of human rights to the field of disability results in highly problematic implications. the rights discourse and its central reference point, the concept of human dignity, have been based on a model of an individual that is characterised by his capabilities and the role he plays in society (de asís, 2007). both assumptions, as previously stated, exclude people with disabilities, specifically but not exclusively, people with intellectual and psychosocial disabilities. the first of these assumptions states that human dignity depends on the ability of individuals to establish and pursue their own plans and life projects. this idea may be better understood referring to what peces-barba called the “dynamism of freedom” that involves considering that human beings have freedom of choice, i.e., “the freedom to choose between different possibilities” and guide their existence towards the achievement of certain life plans, towards attaining their moral freedom, which is thus presented as “a goal, an objective, an ideal to be achieved, perhaps a utopia of the human condition” (peces–barba martínez, 1989) 4 . the ability to follow this path, that is, the moral autonomy or moral agency is dependent upon, in turn, the possession of another set of capabilities such as the ability to feel, to communicate and particularly the ability to reason 5 . furthermore, the exercise of capacities is usually related to the social role of the persons and valued according to its usefulness or contribution to the community, that is, it depends on the capacity to obtain certain social results of their actions (de asís roig, 2007 and quinn, 2005). within this approach 4 a historical analysis of the idea of dignity may be seen in peces–barba martínez, 2004. on the idea of dignity see fernández garcía, 2001, pele, 2010 and ansuátegui roig, 2012. 5 as stated by carlson and kittay (2010): 1, philosophers understand the mark of humanity as the ability to reason, the reason is considered the foundation of human dignity” and therefore “the special moral status that we attach to humans”. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 36 only dignified individuals are involved in moral discussion, i.e., persons who are able to reason, feel and communicate and guide such capabilities towards achieving a life plan and play a certain role in society (de asís roig, 2007: 33). ii.1. the approach on disability in rawls´s theory this vision enshrined in the theory of justice and human rights since the age of enlightenment 6 is still present in contemporary theories. at this point, the theory of rawls –rightly regarded as one of the most influential theories of justice in the western tradition– is paradigmatic 7 . according to rawl´s approach, those individuals –in their original situation and behind the veil of ignorance– who are involved in establishing the basic principles of justice are those people who possess what this author refers to as the two moral powers: the ability to establish a sense of justice and the capability to provide a concept of good (rawls, 1996: 49). such powers require a sophisticated rationality and the adequate development thereof also demands its independent exercise. for rawls the capacity for a sense of justice means reasonableness, an understanding conceived as the ability to relate to others equal citizens and be able to participate with others according to rules one would expect others to abide by. the capacity to have a conception of good implies that people are rational to determine their own goals, that is, their own life plans and projects and to take the appropriate steps to achieve them (rawls, 1996: 59 and ff.) according to rawls, these two capabilities allow us to conceive people as “free” and equally, the possession of such powers to the minimum extent required to be fully cooperating members of society makes people equal (rawls, 1996: 48). these moral powers are connected in the rawlsian approach to the objective that is considered to be directed towards the equitable social cooperation, that is, the achievement of mutual benefit (rawls 1996: 49). thus, “moral” people are, according to rawls, the strategic negotiators “capable” of obtaining and generating mutual benefits 8 in their association. therefore, they are in a similar position (silvers and francis, 2005: 45 and ff. and becker, 2005: 16 y ff.). based on these premises, the individuals involved in the moral discussion are characterised by their “homogeneity” (silvers and francis, 2005: 45 and nussbaum, 2007: 119). they are “rational adults”, independent and with similar needs and are capable of offering a “normal level” of productivity and social cooperation (nussbaum, 2007: 120 and kittay, 1999: 88-99). the individuals who according to rawls can be considered as moral subjects are found “within the limits of what is perceived as normal” so that whilst “they do not possess equal abilities... they do have, at least to a minimum degree, the moral and physical, 6 kant’s conception of moral autonomy and independence, which has a significant influence on the contemporary theory of human rights, gives a central role to rationality, see, for example, kant (1989). 7 see a critical analysis of rawls's theory focused on treatment of economic inequalities in ribotta, 2011. 8 see on the idea of reciprocity, rawls, 1996: 46 ff. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 37 intellectual capabilities that allow them to be fully cooperating members of society over a complete life cycle” (rawls, 1996: 216 and 217). thus, people with disabilities – conceived as individuals who do not comply, or do not seem to comply with these traits in ways considered standard– lose their ability to participate as individuals of justice and “experience justice” as “dependent people” (silvers and francis 2010: 241). indeed, in accordance with rawls's theory both people with physical disabilities and people with psychosocial and intellectual disabilities are expressly excluded from the initial discussion regarding the principles of justice 9 . the exclusion of the first group is justified because, although in this case the persons might be “fully cooperating” in the sense of being “productive to a normal standard” if certain adjustments and social conditions are introduced, the excessive cost that the adoption of these measures entails does not compensate as it is regarded as inefficient from an economic perspective 10 , leading to question the requirement of “reciprocity” 11 . in regards to people with psychosocial and intellectual disabilities there are other more profound reasons apart from productivity and social cost. people with psychosocial and intellectual disabilities are directly disqualified as citizens because they do not conform to the ideal image of moral rationality 12 and to the ideal image of the independent agency that has been employed to define the citizen from the kantian roots of the theory of human rights (nussbaum, 2007: 145). from these references, people with disabilities are not considered in the rawlsian approach as primary individuals of justice. persons in original position who undertake to reach an agreement on the basic political principles ignore what their gender, race, or social class will be but they know for certain that they will not be people with severe disabilities. for rawls, the support to these people is an “urgent practical matter” that should be addressed at a later stage in the legislative field but it not a basic topic of justice that must be contemplated in the first instance 13 (rawls 9 rawls, 1996: p. 50 excludes not only people with permanent disabilities and “severe mental disorders” but also neglects the consideration of temporary disabilities. 10 in the words of nussbaum, (2007: 116 and 117) if cooperation agreement is “for mutual benefit” the participants should relate with those people whose cooperation is expected to be fruitful, not people with unusual and costly needs who cannot contribute much to the social product and therefore reduce the level of welfare of the whole society. it is an argument that has been used throughout history recursively to rationalise the social exclusion of people with disabilities, (stein, 2007: 103). 11 gauthier, 1986: 18 notes that it is only possible to talk “euphemistically” about building the capacities of the disabled live productive lives given that the services they require far exceed any possible product. 12 rawls, 1996: 50 admits that his conception of justice is derived from an a concept of a person implicit in the public political culture, which is idealised and simplified in various ways. 13 to rawls, 1987: 546 that all citizens are fully cooperating members of society over a complete life means that “everyone has enough intellectual faculties to participate normally in society and that no one suffers atypical needs that are especially difficult to satisfy, as, for example, atypical and expensive medical needs. obviously the assistance for people with these needs is an urgent practical issue. but at this early stage, the fundamental problem of social justice is between those who participate in full, actively and morally in society”. kittay in opposition to rawls (1999: 77) argues that “any project that seeks to include everyone should consider from the outset the notion of dependence”. also nussbaum, 2007: 137 and 138. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 38 1996: 50). people with disabilities are treated as “second-class citizens”, both in terms of their consent and in regards to their demands and interests (silvers and francis, 2005: 49 y 50). in conclusion, the rawlsian theory cannot do justice to persons with disabilities 14 and directly excludes them from the moral debate (silvers and francis 2005: 41). rawls explicitly recognises that justice understood as fairness does not offer a reasonable response to the situation of persons with disabilities 15 , although this defect does not diminish, in his opinion, the overall value of his theory. ii.2. the approach on disability in nussbaum’s theory in her book frontiers of justice nussbaum addresses disability 16 from the capabilities approach as the most appropriate framework to include people with disabilities in the discourse on justice and rights. as is known, nussbaum adopts the approach proposed by sen within the field of development economics as a philosophical basis to construct a theory of the basic rights of human beings. according to this theory, which is substantive and not procedural as rawl´s approach’, the capabilities are considered as political purposes which are the source of the basic principles of justice in a free society. so, capabilities are defined as opportunities to choose valuable functionings and lead a life or another, whilst the functionings are the person’s achievements, what he or she manages to do or become in life. in the words of sen: “the functionings are... more directly related to living conditions... they are different aspects of the living conditions. capabilities, in contrast, are notions of freedom in a positive sense: the existing real opportunities in relation to the life one can lead” (sen, 1987: 36). based on sen’s approach, nussbaum introduces a list of ten basic capabilities that give form and content to the abstract idea of dignity and the idea of a threshold for each capacity below which it is considered that the citizen can not “function in a truly human way” (nussbaum, 2007: 87). these capabilities are built upon an ethically evaluative consideration of human nature, of a conception of the species, selecting among the activities that define a “distinctively human being” some aspects that are considered to be so fundamental from a normative perspective that a life that lacks the possibility of exercising any of them is not a “truly human life”, a life aligned with human dignity (nussbaum, 2007: 185 and 186). according to this idea, a fair society is obliged to provide the necessary resources to enable people to develop their basic skills in the minimum required, allowing them to choose their own life plans. it is true that in some respects nussbaum's 14 this is because justice is regarded from the perspective of distributing the benefits from mutual cooperation between those who are able to contribute. 15 indeed, rawls 1996: 50 and 51 notes that on this issue of justice as fairness may not have an answer either because it is not really a political justice problem or because although it is indeed a problem of political justice, justice as fairness fails in its treatment though it may work in other cases. see nussbaum 2007: 42 16 see a comparative and critical analysis on the application of the theories of rawls and nussbaum to the field of disability in stark 2010. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 39 approach seems to be promising for people with disabilities. for example, her theory considers that people with disabilities are “fully” equal citizens and members of the human community (nussbaum, 2007): 89), it rejects the idealisation of rationality 17 , it criticises the idea of mutual benefit as the basis for social cooperation and recognises the importance of support in relation to each of the capabilities of the list 18 (nussbaum, 2007: 167 and 168, 174-177). however, finally, nussbaum’s approach is less inclusive than what was stated a priori, at least regarding some people with disabilities. her theory fails to recognise the full dignity of persons with disabilities whose level of carrying performing basic capabilities is below the minimum universal threshold and excludes these individuals from full participation in society (stein, 2007: 101 and ff.) the concept of basic skills as defining elements of a dignified human life may entail, in the end, less respect for the dignity of those individuals who do not possess them. as silvers and francis point out, to adopt an approach that establishes a “socially appropriate” minimum threshold for acquiring a list of basic skills cannot be positive nor even neutral for people who fail to achieve the level of “standard” performance established by the norms of the specie and opens the door to the danger of stigmatisation (silvers and francis 2005: 54). in this sense, nussbaum goes on to state that those individuals who do not have a reasonable expectation of reaching a “normal” development of some of the capabilities on the list suffer “a terrible misfortune” and their life is “unfortunate” 19 (nussbaum, 2007: 196 and 197). according to the author, the capabilities of the list are good and humanly important and so when someone does not achieve them they find themselves “in a difficult situation.” (nussbaum, 2007: 197). for nussbaum this means that society has the obligation to promote the acquisition of capabilities not only allocating social resources but also “healing” and “improving” people 20 and helping individuals to develop such capabilities through guardianship 21 . in relation to this point, nussbaum adopts an approach that is 17 in this sense nussbaum, 2007: 166 and ff. states to have an aristotelian rather than a kantian notion of the idea of rationality that is not an idealised idea and is not opposed to animal nature. 18 nussbaum believes that her theory, unlike rawls’, has approached the idea of assistance in an adequate manner within a conception of justice conceiving it as a primary need whose satisfaction to an appropriate level is one of the defining features of a fair society. for nussbaum, assistance is not integrated in the list of capabilities as an extra capacity, but refers to the broad range of capabilities from the list, both for the person providing assistance and the person receiving assistance and must be appropriate and personalised. 19 as silvers and francis 2005 stated: 55, to be designated as someone who suffers a tragedy involves considering him a burden both for himself and for others. and this means greater vulnerability to social disapproval and damage. see on theory of personal “tragedy”, oliver, 1996: 31. 20 nussbaum , 2007: 197 in relation to sesha, the daughter of the philosopher eva kittay, states that if we could cure her from her condition and make her reach the threshold of capacity, we would do so because “it is something good”, moreover, “it is important that a human being can operate in this ways, society would be obliged to pay for it... additionally, if we could redesign the genetic aspects of their condition during pregnancy so that they would not be born with such serious deficiencies, that is also what a decent society should do... this line of reasoning does not propose to eliminate down syndrome, asperger syndrome, blindness or deafness through genetic engineering but is neither clearly opposed to these possibilities." see the criticisms to this approach silvers and francis, 2005: 54 and ff.; stein, 2007: 104 ff. and bach and kerzner, 2010: 69. 21 nussbaum, 2010 considers full protection as the only way to provide people with cognitive disabilities civil and political rights on the basis of their genuine equality. in her view, guardians should disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 40 typical of the medical model of treatment of disability that considers disability a mainly individual problem 22 . from this perspective, nussbaum’s approach favours “what is considered to be normal” and proposes a strategy of assimilation that may impose excessive burdens and be extremely harmful for those individuals who ultimately cannot or do not to wish to be assimilated or whose assimilation is particularly difficult (silvers and francis, 2005: 155). as noted in frontiers of justice, within society “we complain and suffer” for those who cannot reach the necessary level of capabilities instead of accepting them as they are and helping them to participate in this way in the moral world (silvers and francis, 2005: 156). furthermore –although nussbaum is opposed to the kantian idealisation of rationality– the list of capabilities includes an individual and sophisticated view of both the ability to practical reasoning –“to form a conception of good and be able to critically reflect on their own life plans”– and the abilities in relation to the “senses, imagination and thought” – to be able to use the imagination, thought and reasoning” and do so in “a truly human way,” an informed and educated manner “through adequate education “including, but not limited to, literacy and basic mathematical and scientific education (nussbaum, 2007: 88 and 89). thus, the concept of dignity that the author intended to reject, are re-introduced “in her theory by the back door.” (bach and kerzner, 2010: 70). furthermore, nussbaum’s approach does not fully respect the moral autonomy of persons with disabilities. the author states that, in general, for “normal” people the social goal is almost always to develop the capacity but not so much so the functioning. this clarification enables individuals to perform through the development of basic skills their different conceptions of good (nussbaum, 2007: 91). in her opinion, forcing citizens to perform the functionings would be illiberal and dictatorial (nussbaum, 2007: 177). nevertheless, what was stated previously is allowed in the case of people with “mental deficiencies”. although also in this case nussbaum considers that the norms should always allow people to be able to choose their adequate functioning she admits that “in many cases” and “many areas”, given that people with severe mental disabilities cannot make decisions about their medical care nor provide their consent to sex or assess the risks of a particular job or profession, “the goal” will be the functioning rather than the capability (nussbaum, 2007: 179, 202). the dangerous and risky shift from capabilities to functionings implies not taking into consideration the wishes and preferences of people with disabilities and prevents them from pursuing their own conceptions of good (silvers and francis, 2010: 244-247). exercise rights for these people such as the right to vote or be part of a jury. bérubé, 2010 also advocates for a robust concept of surrogacy, which involves considering the guardians as people with the right and responsibility to speak for others, as the safest way of recognising the dignity of people with severe intellectual disabilities. 22 a criticism to the medical model is put forward in oliver, 1996. the social model believes that disability originates predominantly from social causes, i.e. the design of society resulting from some references that do not take into account the situation of people with disabilities palacios, 2008. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 41 in nussbaum's theory, people with disabilities should be brought to the threshold of capabilities dictated by the standard of the specie so, consequently, it does not allow people with disabilities to be able to express a conception of good; the goodness throughout life for people with intellectual disabilities is something “objective” and has been defined without taking them into consideration, i.e. to acquire a basic level in the performance of all fundamental capabilities (francis and silvers, 2007: 318 y 319). despite these objections, as will be seen, some of nussbaum’s ideas may be readopted with the aim of reconstructing a human rights theory that includes people with disabilities. it may can be argued from the previous reflections that the standard theory of human rights and rawls’ approximations, as a contemporary version of this theory and those of nussbaum, which is in some ways aim to move away from it, in the end in one way or another establish a “line” 23 that classifies individuals into two groups: those who are “normal”, that is, those that can be “fully cooperating” or may attain a minimum level of basic skills, and those who are outliers (silvers and francis, 2005: 40 and ff.), those who do not meet the required characteristics. this vision proposes a model of one size fits all and those who do not fit in, in this case people with disabilities, raises some obvious problems (silvers and francis 2010): 246. to conclude this section and to summarise the ideas above, we shall highlight three of these issues. firstly, in accordance with the guidelines of this approach it seems that the inclusion of people with disabilities in the rights discourse is not possible, or at most, it would be regarded as the object of the discussion but not as subject (de asís roig, 2007: 36). certainly, people with disabilities are often treated in the theory of rights as moral objects, as passive recipients who deserve to receive attention, support and care, but not as active moral agents who deserve to be able to choose and develop their own life plans and projects. from this perspective, people with disabilities “can be attributed rights yet it is not justified based on the idea of human dignity, but as a result of the decision taken by individuals who are able to do so because they are considered worthy of this attribution” (de asís roig, 2007: 36). secondly, this approach presents us with the “uncomfortable situation” (campoy cervera, 2007: 166) of having to argue that even defining human dignity in accordance with certain capabilities that allow standard levels of social contribution, it is also applicable to those who do not possess such capabilities or cannot develop them fully, or having to accept that somehow these people are not fully worthy, have their dignity diminished or impaired or have lost it. 23 nussbaum (2007): 123 criticises rawls (1996): 217 for establishing a clear distinction between changes in the capabilities that put people "above or below" a line that separates those who have "more" and those who have "less" minimum capabilities that are required to be a normal cooperating member of society. however, also within this line of thought to have or not, "realistic expectations" to reach the minimum threshold can establish an important line (between a life that is a tragedy and one that is not, among the deficiencies that are required to be cured and prevented and those not, between those for which the only solution is guardianship and those for whom this is not the case). disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 42 finally, the traditional approach in regards to persons with disabilities in the rights theory justifies an excessive paternalism that generates overprotection and arbitrarily restricts their autonomy (campoy cervera, 2007: 166). thus, it is justified that people who meet in a satisfactory manner the characteristics that define human dignity design the moral horizon of the people who do not satisfy them based on their best interest and replacing them in the decision making about their plans and life projects. iii. reviewing the human rights theory in inclusive terms for people with disabilities to propose a comprehensive and exhaustive theory of rights that would include on equal terms persons with disabilities exceeds the scope of this paper. my objective, less ambitious, involves making some observations that may contribute to the construction of this theory and which are reflected in some changes of perspective, nuances and new approaches 24 that entail a significant review of the assumptions on which the standard version is based. iii.1. reviewing the importance of disability the theory of rights has to mainly address and deal with the question of disability and not tackle it as a marginal issue or consider it as a problem that may be left unresolved. the difficulties that the rights theory encounters in its application to persons with disabilities cannot be understood as a minor deficit. on the contrary, the exclusion of people with disabilities is a “profound defect” that affects the overall validity of the theory (nussbaum, 2007: 110). disability becomes, in this sense, a testing ground for the theory of rights. a satisfactory theory of rights must recognise the equality of persons with disabilities but must also accept the existing “continuity” between normal lives, also characterised by numerous deficiencies, needs and dependencies and of those who suffer permanent disabilities (nussbaum, 2007: 110 and 112). therefore, the review of the theory of rights to enable the inclusion of people with disabilities is a task that potentially affects and benefits all citizens (quinn, 2011 and wolf, 2010: 147). iii.2. reviewing the approach traditionally, disability has been considered in the discourse of rights as a property related to the personal traits that identify certain individuals. such a perspective is connected with what has been referred to as the medical model of the disability approach, which as stated above, understands disability as a problem of the person derived from the individual limitations caused by a deficiency. also, this approach is related to the common analysis of disability within the so-called process of 24 these approaches are not entirely new but have been highlighted in the critical review of the standard theory of human rights in relation to the treatment of groups traditionally excluded from this debate. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 43 specification of the rights 25 . this process is characterised by the diversification of the ownership of rights and seeks to justify the attribution of rights alluding to the recognition of the particularity, i.e. the specification leads to the emergence of specific rights of certain individuals or groups that they would be entitled to because of the features that make them different or identify them. in my view, the disability approach in the theoretical and legal discourse from the individual or group perspective, from the medical model and from the specification process contributes towards stigma and underestimation of people with disabilities, perpetuating their image as special and unusual (de asís roig, 2007: 34 and 35; barranco avilés, 2011: 22 and 23). the rights theory must fundamentally address disability from the perspective of the situation, the social model and the generalisation process. the focus on the situation means understanding that disability is not so much a personal trait but rather a situation in which certain people find themselves (de asís roig, barranco avilés, cuenca gómez and palacios, 2010). such situation, in line with the assumptions that define the social model must be understood as the result of a combination of social and individual factors. from this point of view, the generalisation process, characterised by expanding or extending universal rights rendering it less “abstract” in order to include more “real” persons (barranco avilés, 2011: 22) is presented as the most appropriate perspective from which to address the approach of the rights of persons with disabilities (de asís roig, 2007: 34 and 35). when adopting this approach, it is accepted that the rights of persons with disabilities are the same as those of other citizens and argues the need to extend them fully to this group, which certainly requires the adaptation of the “common” rights that have been abstractly formulated to the specific life circumstances of people with disabilities (barranco avilés, 2011: 24). thus, the process of generalisation is based on the need to overcome a situation of discrimination and is connected to the objective of universality of rights. in any event, the adoption of this approach as the primary one does not mean that the theory of rights should not be open to other considerations. in this regard, two emerging models become increasingly important: the diversity model and the identity model. the diversity model is presented as an evolution of the social model which also includes the exaltation of the value of diversity represented by disability that is considered as an enriching factor in society 26 (de asís roig, 2006:15-25). it is a 25 this is one of the four processes of historical evolution of human rights; see on these processes peces-barba martínez and others, 1995: 160-196. regarding the specification process bobbio 1991: 109. on the treatment of disability within the specification process see peces-barba martínez, 2007. 26 this model advocates a terminological change that eradicates any negative connotation on disability proposing the use of the term people with functional diversity and highlights the idea of equal dignity in disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 44 reflection that must be taken into consideration by a rights theory that treats people with disabilities fairly. as for the “identity model”, supported by the deaf community 27 , is based on a cultural and particular argument. this model means that the “deaf community” is a group with common values and identity, built around the use of sign language, which must be respected, preserved and promoted. from this point of view, the model would rely on the particularity of the group and would adopt its own approach to justify the specification process, alluding to identity reasons, the existence of rights exclusive to the deaf community that would be conceived as a cultural and linguistic minority (lane, 2005). in the field of disability, as in other areas, a good theory of rights must, in my opinion, combine the universal perspective as the main point of view with the particular and cultural vision. iii.3. the review conceived as a consistent extension and reformulation a review of the theory of rights aimed at including people with disabilities requires a consistent application within the context of disability approach of the theory of the rights set forth in the first section. disabled people just as has been the case of other groups such as racial minorities or women are excluded from the moral argument because it is believed that their “biological” differences imply less rational capacity and/or a smaller contribution to society. as is the case of the members of those previously mentioned groups, this statement is simply not true, at least in regard to some people with disabilities. in this sense, it is crucial to overcome the frequent and distorting confusion between functional and moral limitation (de asís roig and palacios 2008: 51 and 52). as a result of the persistence of prejudice and stereotypes, people with functional limitations tend to be perceived as individuals limited in their moral capacity and social contribution when often they possess “standard” capabilities at a “normal” level –and particularly the rational capacity– required to be able to freely choose their own life plans and projects and can be “useful” for the community 28 . (nussbaum 2007: 117). therefore, theories such as the one defended by rawls, which excluded people with disabilities for these reasons, would simply be mistaken and if they correct these false premises nothing would prevent them from including people with disabilities 29 (nussbaum, 2007: 117). diversity, calling for a consistent application in all areas and especially in the biomedical field – in the consideration that the life of all people, with or without functional diversity, has the same value and demanding respect for their autonomy palacios and romañach, 2006 and romañach, 2009. 27 see an analysis on this model de asís roig, 2012 a. 28 in these cases the "outlier" problem is solved by assimilating these individuals to successful bargainers, proving that they possess the same abilities and their performance can generate social results and establishing measures to overcome the historical exclusion that they have suffered to guarantee, where appropriate, that the “bargaining” is conducted on a more equitable basis, silvers and francis, 2005: 42. 29 nussbaum believes that all contract theories possess a number of structural features that “prevent any defence in this sense”. silvers and francis do not share this opinion, 2005: 50 and ff. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 45 however, this strategy of consistent extension is insufficient. indeed, some people with disabilities show significant differences in their cognitive abilities and capabilities and cannot contribute to society in a way that could be considered “productive” in the usual sense 30 . therefore, it is not enough to integrate people with disabilities into the rights theory as it is conceived today, that is, for an abstract and ideal 31 right holder – which is desirable for people without disabilities. it is necessary to include persons with disabilities on a rights discourse that is adapted to the needs of all, a task that entails the redesign of this discourse in relation to some important aspects 32 . the consistent extension of the assumptions that govern the human right discourse to people with disabilities and particularly the basic principle of the equal value associated to all human beings must, in consequence, be combined with the reconstruction of the references from which this idea is established and the reasons on which it is based. this requires, firstly, a reflection on the model of worthy human beings. iii.4. reviewing the notion of dignity although the idea of dignity is presented as defining the “nature” or the “essence” of the human being, it is an articulated social construction based on features which have served to protect some individuals and, at the same time, have excluded others, for example people with disabilities (de asís roig, 2012 b). this circumstance is largely derived from the idea that the characteristics that define dignity are abstract and generic features that exclusively allude to the individual level without taking into consideration in its configuration the context in which these characteristics are developed, the social conditions and the collective dimensions projected on them, the existing inequalities between moral individuals and the real obstacles to achieving and exercising autonomy and independence (de asís roig, 2004: 68). certainly, the idea of dignity has been built on abstractions, idealisations and myths that do not correspond to the actual situation in which the individuals they refer to find themselves in. iii.4.1. dignity and its relation with the capabilities among these myths, “rationality” –more or less idealised– is considered to be fundamental, the decisive criterion used to justify the attribution of special value and consideration to humans. the standard rights theory overestimates the role of rationality in the decisionmaking process and the election of life plans. studies in the field of cognitive psychology and neuroscience show that decision-making is a process in which various rational and irrational, natural or individual and social factors are mixed (damasio, 30 their differences “seem to defy assimilation” so, therefore, become irreparable and "outliers" silvers and francis, 2005: 42 and 48 and ff. 31 see on this idea barranco avilés (2011). 32 see on the distinction between integration and inclusion, oliver, 1996: 92. this is a recurrent distinction in the immigration approach. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 46 2010). understanding and evaluating information, judgement and critical review of the options available and its implications are important aspects in this process, but so are the preferences, emotions, intuitions and experiences. in connection with the above statement, it is also worth highlighting that the threshold of rationality or “mental” competence to consider a person capable of making their own decisions is a social construct designed to be useful to most ordinary citizens as it gives way to the optimal performance of socially practices considered to be relevant, albeit at the price of denying access to people with psychosocial and intellectual disabilities 33 (winkler, 2010: 195 and 196). the establishment of this threshold corresponds to an order of importance between the general welfare and the freedom of all citizens which is resolved in favour of the former (winkler, 2010: 196). the theory of rights should provide arguments to re-balance this situation allowing people with disabilities to make their own decisions and participate in relevant social practices and institutions without them losing their value or general utility. similarly, an inclusive theory of rights for people with disabilities must take into account the value of the capabilities, the respect for diversity and the origin of the limits of the capabilities. with regard to the first of these reflections, it is necessary to question the idea that is sometimes present in the standard theory of rights that a better ability to reason, feel and/or communicate translates into greater dignity and vice versa (de asís roig, 2007: 43 and 44). regarding the second matter, it is important to insist that individuals can have different capabilities, some more developed than others, and may exercise them in different ways without being able to justify that certain capabilities are worth more than others, in a general context, or that there are correct and incorrect manners of developing them (de asís roig, 2007: 44). there is no single way of reasoning 34 , feeling or communicating, but rather, there are various forms that deserve the same consideration and the same respect. thirdly, the difference in the quality and performance of the capabilities and the barriers that some people with disabilities can encounter in their development of such skills do not always originate in their individual characteristics but in many cases they are caused, and almost always they are aggravated by the design of the social environment based on references that disregard the situation of these individuals. when they are taken into consideration, they are regarded as individuals who are not fully autonomous and are prevented from, or their access to certain goods and resources is hindered, whilst other people do not face such difficulties (de asís roig, 2004: 67). in any case, the greatest challenge that the inclusion of disability poses to the theory of rights is to find a suitable alternative to the theoretical foundation for dignity based on the possession of certain abilities, especially the rational capacity. 33 according to this author, it is necessary to change society so that "mental retardation" is not a handicap that could reduce the social and economic value of these relevant practices. the level of mental competence could also be raised, building a society "for the gifted". 34 silvers and francis, 2010: 237 stated that people not only differ in their conceptions of good, but also in relation to the cognitive processes that lead them to construct these concepts, their implementation and maintenance. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 47 one possibility would be to lower the rationality threshold required or redefine the threshold by appealing to a different rational capacity. as noted by berúbé, this strategy is not entirely satisfactory since to establish a core capability and a threshold implies that someone will not be included or will be below the threshold 35 , which again, will confer them less dignity. despite that this objection is true, in this line of argument the proposal of bach and kerzner is interesting. when formulating a minimum capacity threshold for decision-making and the allocation of human agency the authors allude to the ability to express will and/or intention and the autobiographical 36 capacity as broader, neutral, inclusive and respectful criteria in relation to the various ways in which people reason and communicate themselves (bach and kerzner, 2010: 58 and ff). these capabilities are also defined from a social, and not individual, point of view recognising their interdependence. in this sense, they represent the “my capacity to express my will and/or intentions, at least to others who know me well, and who can then ‘confer’ or ascribe agency to my actions in their descriptions of me to others” and “being able to tell ‘who’ i am, my life story of values, aims, needs and challenges, or having my community of knowing and valuing others do that for me, and using that narrative coherence of my life to help direct the decisions that give effect to my intentions.” (bach and kerzner, 2010: 65 ff). this proposal raises the problem of justifying the moral agency of subjects who cannot express their wishes/intentions or say who they are due to personal factors, either because of the severity of their functional diversity or social factors, i.e. the lack of meaningful personal relationships. undoubtedly, these shall be regarded as extreme cases to the extent that many people with disabilities who do not meet the criteria of rationality itself do, however, comply with the requirements of the threshold established by bach and kerzner. also, in many situations these cases will be reversible by building personal networks (bach and kerzner, 2010: 92 and quinn, 2010). in regards to those people who still might not be included within these parameters, these authors seem to suggest the potential use of approximation to which i shall refer later. meanwhile, kittay (1999) alludes to capability to care as an alternative to substantiate the special moral status of human beings. kittay’s approach, defined in opposition to liberalism, poses as a central focus of the political consideration that “we are all children of a mother” and are part of a network of dependency relationships. whilst this proposal is extremely important especially to value the work of care and assistance, it seems to confer people with disabilities more of a passive role rather than an active one and thus fails to promote their moral agency (silvers and francis, 2005: 41 and nussbaum, 2007: 219 ff.). in any case, to consider the caring capability as the fundamental criterion for assigning moral status also raises the question of what happens to those individuals who do not possess the emotional requirements and cognitive abilities –in any case, again, different and more flexible than those required by the criterion of rationality– that define them and therefore would fall below the 35 any performance criteria –independence, rationality, including the ability of mutual recognition, empathy– will exclude someone, berúbé, 2010: 100. 36 see on the importance of this capability being specifically human, damasio, 2010: 210 and ff. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 48 “threshold of care” (jaworska, 2010: 380 ff.). once more, the solution would be to use the potential capacity of such people to “become caregivers” (jaworska, 2010: 388). the focus on the potential consequently delineates a way forward to build the notion of human dignity on the basis of inclusive criteria for people with disabilities. in this line of thought, wong defends the possibility to interpret rawls's theory defining two moral powers discussed previously as “potential properties” (wong, 2010:133). rawls's position should then be interpreted to understand that “every citizen shall be considered as having the potential for the two moral powers, and as moral persons, regardless of whether they are people with cognitive disabilities.” (wong, 2010: 129). from this perspective, the “enabling” 37 conditions that allow us to acquire, develop and exercise the two moral powers and, therefore, be able to participate fully in society should be considered as basic needs of citizens and its safeguard becomes a specific obligation of justice that society has with people with disabilities. nussbaum’s theory seems, in fact, to adopt the potential approach. thus, for example, the author establishes the obligation to respect the dignity of all persons with disabilities and their human potential, regardless of whether or it is a potential that is socially useful “in the narrower sense.” (nussbaum, 2007: 140). furthermore, the basis to claim rights does not consist in the actual possession of a rudimentary set of basic capabilities but in the capabilities that are characteristic of the human species (nussbaum, 2007: 284). thus, as already stated, society has a duty to secure the conditions for all people, including people with disabilities so that they can achieve a minimum level in their development. however, this obligation to bring all persons with disabilities to a universal threshold in the development of each and every one of the capabilities list does not take into consideration the importance of the previously mentioned diversity in capabilities, and therefore, the fact that for people with disabilities (as is the case for other individuals) certain capabilities may be more important than others (stein, 2007: 107 and ff.). furthermore, as previously noted, according to nussbaum the fact that an individual possesses, or not, reasonable expectations of reaching the capability threshold required establishes a significant dividing line. in connection with the approach of nussbaum, silvers and francis who point out that perhaps instead of working tirelessly to bring everyone to the minimum operating level established for citizens in a just society, ideally the solution would be to work tirelessly to position each person within a range of capacities that constitute their personal notion of the good (silvers and francis, 2010: 246). in any event, the vision of nussbaum with some corrections and, especially the general approach of sen, 37 these conditions are linked to social factors such as membership in social groups, establishing personal relationships, education and training etc. and not to individual improvements, isako wong, 2010: 133. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 49 may prove to be very useful in constructing a theory of rights that does not exclude people with disabilities 38 . de asís (2007: 44) also refers to the “potentiality capabilities”. in his view, the moral individual is one who, somehow, “has the ability –real or potential, to a maximum degree or one way or another– to reason, feel and communicate and direct these capabilities to achieve a specific life plan”. the framework of the moral argument “is governed by the value placed on these capabilities and possibilities in the search for a life plan” (de asís roig, 2012 b). in a similar sense, stein notes that the human rights model should not aim at establishing a standard level of basic skills or a cost estimate but should justify the obligation to provide resources to enable all people to develop their own potential and their individual talents regardless of whether this potential can be different and unequal and recognise their autonomy to manage their own moral development (stein, 2007: 106 ff). as noted by wong, this approach raises the difficulty of determining which human beings have the potential to develop moral agency. indeed, it is difficult to ascertain which are the conditions each individual requires to develop their potential, what exactly is their concept of the potential and when this potential will be unlocked. however, in certain cases –once again these are considered extreme and marginal– there seems to be strong evidence suggesting that a person can never develop in any way their moral agency and, in addition, may have never developed it in the past. in connection with these situations it is necessary, first, to question whether this is evidence-based. advances in research within the field of neuroscience and new technologies, particularly in the communications area, could eventually render possible, even in the most difficult cases, that people could somehow develop their moral capacity. similarly, one might ask what would happen if society allocated all the necessary resources to fulfilling that possibility. in any event, to recognise these individuals as moral agents entails the risk of being over-inclusive in so far as it might imply extending the recognition of moral status to all living creatures (wong, 2010: 139 and ff.) nevertheless, undoubtedly it seems much worse the serious moral mistake of excluding from this status persons with disabilities. from this perspective, all human beings should be considered moral individuals without trying to determine exactly where they are positioned within the spectrum of cognitive functioning (wong, 2010: 142). the risk of over-inclusion may also be resolved by appealing to the argument of the potential of the species in an open and flexible manner (wong, 2010:142 and 143). humans, unlike other non-human beings either because they are a mother’s son, either because they possess certain basic organisational structures, ultimately, due to their humanity belong to a species that is able to direct their life towards the achievement of certain objectives and goals (more or less ambitious) through the exercise conditioned and more or less dependant on the social context of several, capabilities, abilities, and talents. actually, the reformulation of the referent of dignity in inclusive terms for 38 regarding these points, there are some interesting ideas such as the understanding of human development, the conception of real freedom and the ability to acquire valuable performances, create and promote skills, the importance attached to social factors in achieving life plans etc. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 50 people with disabilities is believed to take seriously the idea, so common in the theoretical and practical discourse of rights, of the equal inherent value of all human beings as an unquestionable statement. this implies an obligation to relate to all human beings as moral agents who should be involved in the moral debate and, therefore, aspire to develop their own life plans and life. thus, interacting with people with disabilities in this way, whatever the type and seriousness of their functional diversity, means understanding that they deserve consideration and respect, that is, means recognising their dignity. iii.4.2. dignity and its relation with social cooperation as noted, the idea of dignity has been linked in the standard version of the theory of rights to the contribution of individuals to society and such contribution has been traditionally defined in terms of mutual benefit and social productivity. nevertheless, individuals who according to the reflections in the previous section should be considered worthy subjects may not be “fully cooperating” citizens in accordance with this vision. in this sense, the theory of human rights –whether or not it is inspired on the social contract theory– must reconsider the question of the purpose of social cooperation. mutual and social benefit do not necessarily need to be considered as the basis for social cooperation nor as the strongest ties that bind individuals in a community 39 . in this area, the relationship of mutual trust has been proposed as the best option to replace the idea of bargaining cooperation focused on mutual benefit (silvers and francis 2010: 42 ff.) 40 . trust is portrayed in many ways as “the paradigmatic human relationship” as a foundational human interaction that is essential for social cooperation and the development of a system of justice. in a trust culture, unlike what happens in a bargaining culture, people with disabilities can be equally important participants and beneficiaries in the search for justice (silvers and francis, 2005: 43 and 44). indeed, unlike bargaining, trust does not require a sophisticated reasoning and is not based on the material contributions of others or on the direct reciprocity of benefits, so it does not claim the homogeneity and symmetry of the parties. and it is shown as an accessible relation to all people, so that those who cannot be regarded as rational and independent bargainers they can, however, participate in the processes of creation and strengthening of trust (silvers and francis, 2005: 68 and 73). the purpose of the trust offers a more complex picture of cooperation that does not generate material benefits between the parties directly, but it does offer an important social benefit: the interactions between the participants enriches the community and their contribution to social trust benefits them. according to silvers and francis, social dynamics based on 39 nussbaum, 2007: 167 states that society is united by a wide range of feelings and commitments and only some of those are connected to productivity. in her view, productivity is necessary, or even good, but it is not the main purpose of social life. see also nussbaum, 2007: 140. 40 in their view, the exclusion of people with disabilities in contract theories is due to the assumption of the image of the successful negotiator as a paradigm of recruitment. in their opinion, a theory of the social contract does not have to embrace this paradigm and they propose to conceive the social contract more like a project to create a culture and a climate of trust rather than as a negotiating session. patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 51 the idea of trusting and being trusted reinforces mutual respect, the obligation of the most “capable” of giving or to give over to the least “capable” and encourages indirect reciprocity based on expectation to be benefited “not by the actual recipients of one’s own good deeds but by stimulating an environment in which people are disposed to help each other” (silvers and francis, 2005: 70). in my view, this reflection is linked to the importance of the value of solidarity within the discourse of rights that should be emphasised in the disability approach (campoy cervera, 2005: 134 ff.) and replaces the image of society as a set of independent negotiators acting on their own interest to achieve mutual benefits by an image of a community of interdependent individuals who take into consideration the situation, interests and viewpoints of others and who trust, support and cooperate in the development of life plans and projects. iii.5. reviewing the role and the notion of autonomy the autonomy must play a central role in a theory of rights that wishes to be inclusive for persons with disabilities on an equal basis. this requires, as a first step, to reflect on the reasons offered to justify the different results in relation to the balance between the principle of autonomy and the principle of protection depending on whether the disability factor is taken into consideration. for people without disabilities this balance is tilted almost always on the side of autonomy. the liberal principle requires that, when there is no harm to other people (mill, 1997), neither the state nor individuals interfere in their free choice of life plans and projects, even when those choices are clearly irrational and are not based on their “best interest”. some approaches argue that the paternalistic measures may be justified in certain circumstances where “normal” citizens may be considered “basic incompetent” 41 . in the most extreme situations, such paternalistic measures can even lead to the replacement of the person in the decision-making process. in any case, these situations are referred to as exceptional so that the justification of paternalistic measures needs to meet a set of criteria and is based on robust guarantees 42 . however, in the case of people with disabilities the balance always results in the primacy of the principle of protection. people with certain disabilities (usually, though again not exclusively, people with psychosocial and intellectual disabilities) are treated as “natural” basic incompetents in relation to all their decisions and are generally replaced in regards to its adoption. interference in the free election of life plans and projects of these people does not require the concurrence of elements nor the safeguards 41 see on paternalism ramiro avilés, 2006. the metacriteria that would allow establish the basic incompetence of a person would be ignorance or the lack of information, compulsion and the absence of rationality, see garzón valdés, 1988: 165-167. 42 it is outlined, for example, that the paternalistic measures should aim to prevent serious and irreparable harm to the person, must be the least restrictive possible for their autonomy and aimed at protecting the formation-process of their will and must respect their conception of good. see the idea of hypothetical or future-oriented consent proposed by dworkin, 1990: 156 ff. disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 52 required in the case of “normal” people. in connection to this point, the theory of rights must re-balance the conflict between protection and autonomy considering the dignity of risk and the right of persons with disabilities to also make their own mistakes as part of human development (quinn, 2010; bach and kezrner, 2010: 11 ff., 86 and 88). disabled people may also be “subject” of paternalistic measures but never on grounds of disability and thus, under the same conditions and with the same guarantees as other citizens. furthermore, the theory of rights must proceed to reformulate the understanding of autonomy in relation to its standard conception. firstly, the autonomy should not be regarded as a starting point but as a point of arrival (añón roig, 1994: 267). the lack or denial of autonomy has precisely been what has prevented persons with disabilities from the exercise and enjoyment of human rights. thus, autonomy appears not so much as a prius or as a logical antecedent of rights but as a goal to be achieved (megret, 2008: 510 ff.). secondly, once again, it is essential to extend to persons with disabilities the traditional view of autonomy, however, it is also necessary to complete and re-build this vision. in the treatment of the situation of people with disabilities but also in other instances, a complex and robust concept of autonomy composed of two types of content should be advocated for: a negative content requiring no intervention or invasion by the state or a third party in the field of the autonomous decision power of the person which corresponds to the classical view of autonomy; and a positive content, which welcomes the active intervention of the state and society in order to promote and encourage the autonomous decision power of the person (de asís roig and barranco avilés, 2011: 110 and 111). the negative dimension of autonomy requires the respect for the free choice of life plans that may not be restricted by reason of disability. the elections of life of these people must always be respected in the same way as those of other citizens. the positive dimension of autonomy claims that, in those situations where the differences some individuals have in their abilities and talents can create difficulties in choosing life plans and projects, relevant instruments or measures must be implemented to eliminate or mitigate these obstacles (de asís roig, 2004: 67). therefore, the aim is to promote and maximise autonomy rather than deny, obstruct or prevent it. thus, the vision of people with disabilities as equally worthy requires not only that we eliminate the barriers that restrict their autonomous moral development but also that we enable, support and assist them to make their own decisions. in connection with this assessment, it is worth highlighting the need to destroy the myth of the independent exercise of autonomy that again, has proven to be exclusive for people with disabilities who might heavily depend on others to express and patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 53 formulate their conceptions of good 43 . to firmly argue that autonomy prohibits assistance and the interaction with others in the development and implementation of life plans and projects would deny moral agency to all individuals (silvers and francis 2010: 249). “normal” people do not make their decisions in isolation and in an absolutely independent manner either. their decisions are influenced by the social, economic, family etc. context and/or are advised or assisted by others. however, unlike what happens with people with disabilities, these “dependencies” do not entail the loss of their freedom to make their own decisions. in regard to this point it is important to stress that autonomy is not solitary, it is interdependent or relational in practice. the concept of “relational autonomy” 44 – developed, for example in the field of philosophy of feminism– reveals that the decision making is not exclusively an “individual” process, furthermore, it also points out that the identity of the person is formed in the context of a complex network of relationships and is strongly influenced by social factors (silvers and francis, 2010: 249; bach and kerzner 2010: 39 ff.; quinn 2011). identity is not solely construed by the person, but also other people contribute to its formation (lindemann, 2010). again the studies in the field of neuroscience show that the mind is not an atomistic entity and its operation depends on both biological structures as well as social, cultural and interpersonal factors (damasio, 2010 and quinn, 2011). in summary, with regard to the issue of dependency the difference between people with and without disabilities is only gradual, the situation of the former is only a more visible and extensive version of the commonplace 45 (bach, m. and kerzner 2010: 84). disabled people, like non-disabled persons have their own concept of good, that must be respected, albeit in some cases, it has not been fully expressed or communicated by them. some people with disabilities may rely on others to exercise their autonomy in different manners and levels. they may need assistance in communicating their choices 46 and/or to formulate their own life plans 47 and even to rebuild their moral 43 in the opinion of francis and silvers, 2007: 332 the assumption that adults have personalised conceptions of good that are not only theirs, but also independent of any other involves an idealisation that leads to consider that those people who need others to form or express their conception of good are deficient as moral agents and label their formulations of good as the product of dependency. 44 see on this concept of relational autonomy mackenzie and stoljar, 2000. 45 indeed, "to some extent”, we all formulate our conceptions of good interactively. we talk to others... and trust their advice and incorporate social guidelines, work identities, religion, class, race, ethnicity, gender". the difference between most people and the minority of those who are "dependent" is the extension of the dependency, not its existence francis y silvers, 2007: 331 and 332. also quinn, 2011. 46 the concept of "semantic agency" proposed by jennings, 2010: 176 ff. becomes important in relation to this point as a strategy to protect the integrity "in the labyrinth of dementia". the semantics agency refers to the ability to communicate, to participate in meaningful relationships and understanding and evaluating this communication. communication is not identified with the semiotic communication, as the person may have lost the ability to manipulate semiotic signs, but is extended to gestures, contact, facial expressions, posture, eye contact as a means of expression of the semantics agency. as bach and kerzner (2010): 60 ff. point out, the choices made by people with profound disabilities, although they disability and humans rights: a theoretical analysis the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 54 ideals 48 . all these interdependencies (which should be governed by the respect for the identity of the person) may reveal the moral agency putting it into practice. the theory of human rights must recognise and value that dependency and provide parameters so that it is articulated in such a manner that it does not to restrict autonomy but rather it strengthens and promote it. the previous considerations may help to solve three major issues encountered by the rights theory when applied to persons with disabilities that were outlined at the end of the first paragraph of this study. since these people with disabilities are seen as moral individuals and not objects who can be ignored in the ethical discussion and as fully worthy individuals who deserve to be able to decide autonomously with the necessary support and assistance about their fate and their life choices. iv. a final thought: the connection between the theory and the practice of human rights the inclusion of people with disabilities in the discourse of rights is not just a theoretical question of crucial importance but it also possesses a relevant practical significance. the construction of a theory that is capable of affirming the equal rights of people with disabilities is essential to tackling, in a reasonable manner, the implementation of actions and reforms in the legal field and when interpreting correctly the regulations in this area (de asís roig, 2007: 19 and 20). the review of the theory of rights that has been proposed in this paper is particularly important in the interpretation and implementation of the convention on the rights of persons with disabilities and, above all, in determining the meaning and scope of article 12, which contains the main provisions of this international instrument in regards to legal capacity understood as an access to the legal discourse (de asís roig, 2012 b) and the exercise of all human rights (bariffi, 2009). may seem meaningless to others, are significant for people who know them well and are the expression of their moral agency. 47 silvers and francis, 2005: 247 ff. propose the "assisted thinking" as a prosthetic practice that differs in extent and implementation but not in nature of social interactions that allow "normal" people to formulate their own conceptions of good. its role would be similar to that of the prosthesis used by people with physical disabilities: enable and extend the performance of the function of the individual, in this case, formulate and express their own conceptions of good. assisted thought must be inspired by the respect for the person receiving assistance and their own ideas of what is considered to be right that should not be replaced by the caregiver or by society. 48 jennings 2010: 176 ff. proposes the concept of memorial personhood, which means to be a person in the imagination and memory of others and requires the exercise of remembering the life history of the individual to decide upon it. as noted above, also bach y kerzner 2010: 63 ff. advocate a narrative approach to human agency. in their view, what allows us to consider a person as a moral agent is the ability to answer the question "who am i?" with a coherent narrative and a life story that provides meaning to the changes, losses and new directions. this question may not only be answered by the individual, but also by others who personally know the person. in their opinion, it is precisely this narrative coherence "of my own and only life" that make reasonable the decisions giving effect to my intentions and not the abstract standard of "reasonable person" or "best interests". patricia cuenca gómez the age of human rights journal, 4 (june 2015) pp. 34-59 issn: 2340-9592 55 this approach reaffirms the perspective that persons with disabilities have legal personality, it acknowledges their legal capacity on an equal basis with others in all aspects of life, undertakes to ensure access to the support they may require in exercising such capacity and establishes a number of safeguards in relation to the provision of this support aimed primarily at ensuring that their will, preferences and rights are respected. thus, article 12 is a real revolution in comparison with the traditional treatment of legal capacity in domestic law based on the institution of incapacitation and the substitution in decision-making (quinn, 2011). in my view, whilst the traditional treatment of legal capacity can be interpreted as a specific application in the field of law of the assumptions of the standard theory of human rights, the new approach advocated by the convention seems to be inspired on the reflections proposed herein to undertake a review of this theory. it is essential to develop further and strengthen this theoretical framework for the success of the revolutionary change sought by article 12 and that should regard people with disabilities as full and active individuals with rights who are capable of exercising themselves all the freedoms that they are entitled to. references ansuátegui roig, francisco javier (2012): “diritti fondamentali e dignità umana”, ragion pratica, nº 38, 11-23. añón roig, maría josé (1994): necesidades y derechos. un ensayo de fundamentación, centro de estudios constitucionales, madrid. bach, michael and kerzner, lana (2010): “a new paradigm for protecting autonomy and the right to legal capacity”, october 2010 http://www.lcocdo.org/disabilities/bach-kerzner.pdf bariffi, francisco, 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ansuátegui roig6 rafael de asís roig7 abstract: equal rights for persons with disabilities is the ultimate goal mandated by the crpd, and it can probably be gradually achieved in qatar as steps are taken towards reconsidering the approach to disability at large. this paper examines what impact the crpd has on the country’s legislation. to that end, we explore how the sensitive domains –health, education, employment, and justice– need to be re-evaluated in light of the crpd, where recent improvements in the rights of persons with disabilities in qatar can enable compliance and where the greater challenges lie. we maintain that although legal reforms are needed for qatar to comply with crpd, within existing legislation there is notable potential to accommodate particular amendments that could significantly assist the move towards crpd compliance. we suggest some structural steps aimed at improving compliance, consisting of the establishment of specific institutions, the promotion of associations that represent persons with disabilities and, above all, advancement of a fundamental shift in the way disability is perceived by society, moving away from the old medical notion of disability with its focus on special features and rehabilitation and instead adopting the social model that mandates inclusion and equality. keywords: disability, qatar, human rights, united nations. summary: 1. introduction 1.1. disability in qatar: general framework 1.2. key concepts in the incorporation of the crpd model into qatari legislation 2. crpd-sensitive areas 2.1. preliminary clarification 2.2. private law 2.3. health 2.4. education 2.5. labor and employment 2.6. access to justice 2.7. participation 2.8. audiovisual accessibility 3. conclusions. 1 this publication was made possible by the nprp award nprp-7-380-5-051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors. 2 weill cornell medical college in qatar (prd2002@qatar-med.cornell.edu). 3 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 4 universidad carlos iii de madrid, spain (patricia.cuenca@uc3m.es). 5 qatar university (kalali@qu.edu.qa). 6 universidad carlos iii de madrid, spain (javofil@der-pu.uc3m.es). 7 universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 18 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig 1. introduction qatar is an independent, sovereign state about 11.5 thousand square kilometers in size, located on the western coast of the arabian gulf. it has a population of approximately 2.6 million, of which only one in three persons are women (april 2016)8; only about 12 percent of the population is qatari (snoj 2013) the qatari constitution, adopted on june 8, 2004, recognizes shari’a law as its main source of legislation. the political system is a monarchy, and the head of state is the emir, who holds executive power and organizes the council of ministers. legislative authority is vested in the al-shoura council, an advisory body that consists of forty-five members, thirty of whom are elected by direct vote in general elections and fifteen of whom are appointed directly by the emir. qatar has embarked on an ambitious modernization drive, encapsulated in the qatar national vision 2030, a policy framework aimed “towards qatar becoming an advanced society capable of sustainable development with the goal of providing a high standard of living for all citizens” by the year 20309. as part of its reform strategy, qatar, in 2008, ratified the international convention on the rights of persons with disabilities (crpd)10. in september 2015, qatar completed its initial review process before the committee on the rights of persons with disabilities, the un organization in charge of monitoring the state parties’ compliance with the crpd11. in a previous paper, we have identified the main opportunities and challenges that implementation of the crpd entail for qatar. this current paper aims to present the main legislative domains of qatari domestic law that the crpd will impact. in order to better address the contextual elements that might influence the pace and priorities when implementing the crpd in qatar, it is important to highlight some key elements of the crpd: the international requirements to consider in its implementation, and some observations about the general legal status of disability in qatar. 8 ministry of development planning and statistics, qatar. national statistics, population chapter 2015. available at http://www.mdps.gov.qa/en/statistics1/pages/topicslisting.aspx?parent=population&child=population (last accessed february 12, 2017). 9 general secretariat for development planning, qatar national vision 2030. available at http://www.mdps.gov.qa/en/qnv/documents/qnv2030_english_v2.pdf (last accessed march 29, 2017) 10 general secretariat for development planning, qatar national vision 2030. available at http://www.mdps.gov.qa/en/qnv/documents/qnv2030_english_v2.pdf (last accessed march 29, 2017) 11 however qatar did not ratify the optional protocol of the crpd regarding the individual complaints procedure and inquiry procedure. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 19 http://www.mdps.gov.qa/en/qnv/documents/qnv2030_english_v2.pdf http://www.mdps.gov.qa/en/qnv/documents/qnv2030_english_v2.pdf the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains 1.1. disability in qatar: general framework while most countries include declarations of the rights of citizens in their constitutions, specific references to disability are often absent in constitutional texts, and qatar is no exception. this omission can be seen as an expression of the historical invisibility of the disabled, and we know now that an express constitutional mention of the rights of persons with disabilities, as is the case with other groups with a history of vulnerability, would be desirable. the constitutions of some middle eastern countries mention the rights of persons with disabilities. saudi arabia's basic law of governance of 1992 states in article 27 that the “state guarantees the rights of the citizen and his family in cases of emergency, illness and disability, and in old age; it supports the system of social security and encourages institutions and individuals to contribute in acts of charity.” we can also find references to disability in article 81 of the egyptian constitution of 2014, in article 48 of the tunisian constitution of 2014, in article 32 of the iraqi constitution of 2005, and in article 12 of the basic law of the sultanate of oman of 1996. qatar, together with mauritania, morocco, algeria, lebanon, jordan, and turkey, do not have explicit references to disability in their constitutions. article 34 of the qatari constitution establishes the equality of rights for citizens, and article 35 prohibits discrimination based on race, gender, language, or religion. disability, however, is not explicitly mentioned, and the constitution has no other specific provision regarding persons with disabilities that would contribute to their visibility before the law. but while the constitution itself makes no mention of disability, a national law approved in 2004 –law 2/2004 on persons with special needs– specifically safeguards persons with disabilities in qatar. this instrument, in its first article, defines a person with disability as “any person with a permanent total or partial disability in any of the senses or in his or her physical ability or in his or her psychological or mental ability to such an extent that his or her opportunity to learn or to undergo rehabilitation or to earn a living is limited.” although this law is a robust step forward for the rights of persons with disabilities, the definition is rooted in a purely medical concept of disability, with no mention of the social factors that contribute to the very notion of disability, as mandated by the crpd. the law limits its protection only to learning, rehabilitation, and livelihood, and does not expressly mention social opportunities. the medical perspective pervades other definitions, such as special education, rehabilitation, and special education institutes. disability is quite consistently understood, in this legal framework, to be a medical situation related to special features of the persons, and the interventions promoted by the law are oriented towards rehabilitation rather than to social inclusion. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 20 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig it is noteworthy that the medical model remains dominant in the 2004 law that guarantees the right to 1) education and rehabilitation; 2) medical, psychological, cultural, and social care; 3) the tools, devices, means of transport, and equipment that assist in learning, rehabilitation, and enjoying freedom of movement; 4) relief, aid, and other ancillary services; 5) employment that is appropriate to their abilities and rehabilitates them in both the public and private sectors; 6) participation in sports and entertainments according to their special abilities; 7) accommodation for safe and secure movement; 8) securing special facilities in public places; and 9) securing their participation in decisions related to their affairs. article 3 of the law reaffirms its basis on the medical model of disability, when it orders the agency in charge to 1) ensure medical and psychological services and medical reports to the person with special needs and to his or her caretakers; 2) ensure employment opportunities and rehabilitation according to the individual’s abilities; 3) educate the public on the rights of persons with special needs on how to provide aid and support, and to show respect and consideration towards them, including giving support and allowing their integration into society; 4) provide appropriate programs for their education and rehabilitation and to form technical cadres to provide such services; and 5) provide special services in the fields of care, relief, vocational training, family services, technology, sports, and entertainment. along the same medical model lines, it should be highlighted that law 2/2004 stresses the special nature of persons with disabilities, rather than looking for standardization. as noted previously, the qatari legislation stemming from the committee on the rights of persons with disabilities recognizes rights with the goal of protecting through special treatment, rather than consecrating equal rights12. we will further address this legal text below in the sections dedicated to specific fields. 1.2. key concepts in the incorporation of the crpd model into qatari legislation the incorporation of both the social model and the philosophy of the crpd require an understanding of some key concepts that must be projected onto the legal system, such as the notions of disability and persons with disabilities, universal design, reasonable accommodation, independent living, and discrimination. delving into the meaning of these concepts is a good starting point for assessing the degree of legal implementation of the crpd. 12 un committee on the rights of persons with disabilities, concluding observations on the initial report of qatar, crpd/c/qat/co/1, para. 7. available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=crpd%2fc%2fqat%2f co%2f1&lang=en (last accessed january 10, 2017). the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 21 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains the concept of disability is the main aspect in which the social model is projected13. the preamble of the crpd defines disability as the result of “the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.” the text of the international treaty does not distinguish between different kinds of disability, but some statistics show that persons with intellectual or psychosocial conditions are more likely to be subject to exclusion. meanwhile, qatari legislation avoids an explicit general concept of disability14, but disability is implicitly conceived as a medical impairment, as in the previously cited article 2 of law 2/2004. article 9 of the crpd defines accessibility for persons with disabilities as the “access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” the areas of accessibility are “a) buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities, and workplaces; b) information, communications, and other services, including electronic services and emergency services.” qatari law does not include a general definition of accessibility and lacks a comprehensive accessibility plan, despite the existence of specific regulations on accessibility in some areas. universal design is defined by article 2 of the crpd as “the design of products, environments, programs, and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.” it further states that “universal design shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.” universal design is the tool to achieve universal access. there is no mention of it in the current legal framework for persons with disabilities in qatar. the crpd’s article 2 considers reasonable accommodation as the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” when universal design is not enough to guarantee universal accessibility, reasonable accommodations are required. qatari legislation has not yet developed a notion of reasonable accommodation, which is in accordance with the medical model of disability. in this framework, the general idea underlying the treatment of disability is that there are 13 for a further explanation of the social model and its implication for qatar, see rodríguez del pozo p., barranco avilés m.c., cuenca gómez p., al ali k., de asís roig r., “the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation”. the age of human rights journal, 2017 (in press). 14 other terms related to persons with disabilities are defined in several legal documents, as we will see, but the language is inconsistent with the requirements of the crpd. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 22 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig persons who need to be adapted to the environment. the social model proposed by the crpd, conversely, maintains that the environment needs to be adapted to the persons. with respect to independent living, the crpd, in article 19, affirms that “states parties to this convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others […] ensuring that: (a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live […]; (b) persons with disabilities have access to a range of in-home, residential, and other community support services […] to prevent isolation or segregation […]; (c) community services and facilities for the general population are available on an equal basis to persons with disabilities […].” we have not found in qatari legislation any passages that could be invoked to support this notion of independent living. article 5 of the convention refers to equality and non-discrimination, recognizing that all persons are equal before the law and mandating that states parties “prohibit all discrimination on the basis of disability and to guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.” discrimination on the basis of disability means any distinction, exclusion, or restriction on the basis of disability that has “the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (article 2 crpd). the crpd concept of non-discrimination recognizes that the denial of reasonable accommodation is a form of discrimination. since the constitution of qatar does not grant explicit protection against discrimination for persons with disabilities and since qatari legislation is based on the medical model of disability and does not incorporate the key concepts of the crpd15, both constitution and legislation require an overhaul to become fully crpd-compliant. however, until these reforms are undertaken, state parties can find other effective ways to build strong legal protection for persons with disabilities. as comparative law shows, even if the legislative corpus of a country predates the convention, national legislation can be reinterpreted in its wake, and the jurist will find a number of traditional legal institutions that, under this new interpretation, are applicable as positive law for the protection of persons with disabilities in the terms defined by the crpd. for example, articles 34 and 35 of the qatari constitution explicitly forbid discrimination. although they do not refer specifically to disability, we believe that the courts have ample room to interpret constitutional protection in a way that grants an equal basis to persons with disabilities due to qatar’s ratification of the convention. 15 see concluding observations, crpd/c/qat/co/1, paras 11, 19, 37. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 23 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains in the following sections, we will analyze different areas that are particularly significant when guaranteeing persons with disabilities the same level of protection of their rights as that granted by the crpd. we understand that such protection should include the corresponding legal actions to make those rights effective. we will analyze in each case whether a crpd-compliant protection, under the current crpd interpretation, is guaranteed, from a strictly textual point of view, by qatari legislation. we will present a basic description of the most critical, termed “sensitive”, areas in the protection of the rights of persons with disabilities, aimed at understanding later our assessment of qatari law from the point of view of the crpd. if we find that qatari legislation is not clear, we will propose the most parsimonious legislative alternative to achieve that goal through interpretative alternatives. when that approach seems technically difficult, we will suggest the need for further practical legislative reform. indeed, the analysis of qatari legislation will take into consideration a number of policy areas corresponding to different topics. the division in these areas is the result of the interaction of five main arguments: inclusion, the fabric of the crpd, other countries’ experiences in the implementation of the crpd, conclusions on the current situation in qatar reached in other stages of the present research, and the particular features of this paper. 2. crpd-sensitive areas 2.1. preliminary clarification before analyzing the areas most sensitive to the implementation of the crpd, we need to clarify that this analysis is without prejudice to other obligations that the crpd lays down for states parties, such as duties related to awareness-raising, to institutional organization to monitor crpd implementation, and to statistics and data collection. in these areas, qatar has made very successful strides towards compliance. awareness programs have been carried out by the department of elderly and disabled persons in the ministry of social affairs through television advertisements in which the rights of people with disabilities are explained; through programs run by the social and cultural center for [the] deaf; through al-noor institute bulletins; and through the shafallah center for children with special needs' campaigns dedicated to down’s syndrome and autism. these efforts have been remarkably successful. further synergy and, thus, greater effectiveness and efficiency, would be gained if these relatively isolated actions became more systematic. conventional wisdom dictates that it would be desirable to draw up a general plan of sensitization and awareness under the supervision of an agency that coordinates the different strategies and actions, and that can monitor them under a single, coordinated strategy. however, it is beyond the scope of this study to measure the effectiveness, let alone the efficiency, of the systemic versus the single-institution approach. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 24 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig qatar has created institutions that, in one way or another, are in charge of the institutional monitoring of crpd implementation, such as the shafallah center for children with special needs (2001), the cultural center of mother and child (2003), the family guidance center (2003), the qatar foundation for the protection of children and women (2003), the qatar foundation for the care of orphans (2003), the qatar foundation against trafficking in persons (2005), the center for social rehabilitation (2007), and the qatar foundation for the care of older persons (2003). the supreme council for family affairs –now the department of family affairs at the ministry of administrative development, labor and social affairs– was the government agency in charge of crpd implementation until 2015. while the national human rights commission has competencies in monitoring the situation of people with disabilities and has conducted fieldwork on the matter, there is no single body aimed at directing and coordinating disability policy. nevertheless, the foundation of these various individual organizations is significant and shows a government-wide commitment to secure the rights of persons with disabilities and the implementation of the crpd. given the number of institutions and agencies sharing similar tasks, the question emerges as to whether there are possible overlaps, duplication of tasks, and misunderstandings amongst institutions. though this assessment is beyond the remit of the present study, the existence of a single agency in charge of distributing roles and assigning tasks to the various institutions would make working towards the implementation and monitoring of the crpd more efficient. finally, qatar has taken several steps towards filling the gaps, as discussed earlier, in relation to its obligations on statistics and data collection regarding disability16. it is worth mentioning the global survey on persons with disabilities (developed in collaboration with the supreme council for family affairs), the qatari national institute of statistics survey, and monographic chapters devoted to persons with disabilities, published in the government’s national annual statistical report. important steps have been taken to improve the capture and collection of data, broken down by disability-type, exploring the situation of persons with disabilities. it is also important that information is not simply reduced to numerical indicators, and that confidentiality and respect for the privacy of persons with disabilities are ensured throughout the process. thanks to these efforts, qatar now has a reliable statistical system, which is critical for an adequate decision-making process. in the following pages, we will analyze legal texts in the light of the crpd, in legislative areas that are most critical from the standpoint of the human rights doctrine. 16 in its concluding observations on qatar, the committee on the rights on persons with disabilities “welcomes the inclusion of questions on disability in the 2010 population census, as a first effort to understand the situation of persons with disabilities.” ibid., crpd/c/qat/co/1, para. 4. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 25 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains 2.2. private law legal capacity, which is the legal right to engage freely in contracts that may result in legal obligations and to exercise rights as an independent individual, has historically been approached from the perspective of the medical model of disability by civil laws around the world. in this paradigm, persons with disabilities, most particularly persons with psychosocial or intellectual disabilities, are conceived as persons incapable of making decisions due to their impairments. hence, in order to protect the best interest of the persons with disabilities, the power to make legally binding decisions needs be stripped from them and given to a legal guardian who will act on their behalf. legal theory considers capacity to be a technical (quinn 2009) tool aimed at protecting legal security. the removal of legal capacity and its substitution with a guardianship system carries, for psychosocial or intellectually disabled people, the withdrawal of their control over their property and financial affairs, so that they are guarded against their own unwise decisions or those made potentially abusively by third parties. however, the denial of legal capacity due to psychosocial or intellectual disability effectively compromises the civil and fundamental rights of persons with disabilities. for instance, persons with psychosocial or intellectual disability, once deprived of legal capacity, do not have the choice to decide when they wish to move and with whom they wish to live, and cannot initiate legal action on their own to protect their dignity in the case of alleged abuse. the crpd is a paradigm shift in the field of legal capacity. the convention considers legal capacity as a human rights issue, which means that it is of critical value to ensure effective exercise of civil, political, economic, social, and cultural rights, and requires treatment of the individual according to the values that animate human rights (dignity, autonomy, liberty to make one’s own decisions, and equality)17. the regulation of legal capacity should similarly be undertaken in accordance with the convention’s social model of disability. the adoption of the social model involves understanding that the problems that some people may encounter when making decisions are related not so much to their own personal characteristics, but rather to social factors. thus, the point of departure should be to recognize the full legal capacity of all persons with disabilities, and to provide persons with disabilities the choice to receive support in situations when they have difficulties in making decisions or communicating them to others, in accordance with their own will and preferences. national legislation should, in the crpd's paradigm, move from a model of substituted decision-making towards assisted decision-making. 17 this approach is clear in the position of the committee on the rights of persons with disabilities, general comment no. 1, “equal recognition before the law,” adopted april 11, 2014, crpd/c/gc/1. concluding observations. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 26 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig in qatari legislation, as in most national laws today, such a paradigm shift has not yet been adopted. in qatar, persons with psychosocial and intellectual disabilities may be deprived of their legal capacity and be put under guardianship. at the same time, under qatari law, the exercise of some fundamental rights requires being sound of mind. in qatar, personality is considered a universal trait, attributed to all human beings in its civil code, and there are no restrictions or gradations on the basis of disability18. however, qatari legislation is rooted in the substitution model with regards to legal capacity. the civil code determines that the recognition of full legal capacity depends on full legal age, which is reached at the age of 18, and on “mental competence”. in this regard, those who are not considered mentally competent may be incapacitated. incapacitation in qatari legislation can be total or partial (as determined by articles 49 and 52 of the civil code and article 190 of the family code). legally incapacitated persons are subjected to a system of guardianship (curation or qawama) in which a third person takes care of and represents the person and administers his or her property in accordance with the provisions of the law (article 40 of the law on the guardianship over minors funds). regarding incapacitation procedures, qatari law requires a judicial decision (article 118 of the civil code and article 33 of the law on the guardianship over minors funds). qatari legislation does not include any references to the obligation to take the person´s own will and preferences into account during the incapacitation procedure or during the application of the system of guardianship. specific institutions are given the legal competence to monitor the guardianship system. although qatar’s legislation is based on the substitution model, some of its provisions seem to provide mechanisms that allow incapacitated persons to manage their assets. article 34 of the law on the guardianship over minors’ funds establishes that some persons under guardianship may take over the management of all or some of their assets, with the permission of a judge and after the office of the general attorney has been consulted. in this case, the provisions on minors authorized to manage their assets applies to persons with disabilities. it is not clearly stated which category of incapacitated persons may use these mechanisms, but the principle is very encouraging from the perspective of the crpd. the civil code (articles 119–125) also considers that persons under interdiction for prodigality or for “inattentiveness” may be legally competent to perform certain acts, including the administration of their property, the conclusion of an employment contract or the execution of a will. insofar as the applicable legislation fails to provide an express definition of the notion of “inattentiveness,” it remains unclear to which incapacitated 18 law [act] no. 22 of 2004 promulgating the civil code. as pointed out in article 39 of the civil code “the personality of a human being shall commence upon being born alive and shall cease upon death.” the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 27 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains persons with disabilities, if any, these provisions apply. however, the existence of these provisions may be seen as a good step towards the implementation of the crpd. even more encouragingly, qatar’s legislation includes a mechanism to assist some persons with disabilities when concluding a contract. the civil code allows people with severe physical and sensory disabilities (particularly deaf and dumb, blind and deaf, or blind and dumb, in the code's words), who “cannot understand the contents or surrounding circumstances of a contract, or cannot effectively communicate his will,” the possibility of appointing “a judicial assistant to assist such person as may be necessary in his best interests” (article 127). these provisions establish a model of assistance or support in the field of contracts that could be extended to all areas and which could also be applied to persons with intellectual or psychosocial disabilities, to replace the models of incapacitation and substitution. however, to fully comply with the convention, this model should change the “best interest” standard to that of the “best interpretation of the will and preferences” of the person. the committee on the rights of persons with disabilities has expressed its concern about substituted decision-making and guardianship regimes for persons with disabilities that restrict the exercise of rights, including the right to vote, to marry, to have a family, to give or withdraw free and informed consent, to access justice, and to choose where and with whom to live. recalling its general comment no. 1, the committee has recommended that qatar carry out a review of its legislation with a view to repealing regimes of substituted decision-making and replacing them with supported decision-making regimes, which uphold the autonomy, will and preferences of persons with disabilities19. the adaptation of qatar’s legislation to accommodate article 12 of the crpd is one of the biggest challenges posed by the convention, as happens with almost all states parties, requiring profound legal reform. this reform would be very difficult to deliver in the short term, as the experience of other countries shows. however, there are some provisions in qatari law that allow incapacitated persons to make their own decisions in some spheres, which provides an advantageous starting point for the implementation of article 12. moreover, until legal reform takes place, qatar could in practice come close to complying with the crpd by extending the assistance model of article 127, employing rules of interpretation, to all persons with disabilities and to all domains. a specific rule of interpretation could establish that “best interest” includes primarily the best interpretation of the will and preferences of the person with disabilities. these rules could be implemented through different mechanisms according to qatar´s legal and institutional framework while government and stakeholders are working on more complex legislative reforms. 19 concluding observations. crpd/c/qat/co/1, paras 23 and 24. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 28 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig 2.3. health qatari laws and regulations on disability are rooted in the medical model. consistent with this, it is interesting to observe from the social model perspective that some issues not related to health are solved through health legislation and regulations or are made dependent upon medical decisions. the prevalence of this health perspective is quite challenging when carrying out research on disability and legislation, because often the instrument that guarantees the rights of persons with disabilities exists, but is difficult to identify because it is, to the objective observer, masked as a medical or rehabilitative regulatory matter. for example, the supreme council for health seems to be the body in charge of raising awareness as required by the crpd, while public policies on disability are mainly related to health and social assistance. in spite of the core role of health in the treatment of disability, there seems to be a lack of a common procedure to decide who is a person with disability. in some way, this would be advantageous if the recognition of a person as a “person with disabilities” did not depend on an administrative decision on the basis of medical factors. the problem is, however, that as a result of the lack of coordination among the different bodies managing the rights of persons with disabilities, individuals are separately assessed almost for every service. law 2/2004 establishes the rights of “special needs persons” to “medical, psychological, cultural, and social care” (article 2) and states that the supreme council for family affairs20 shall work to ensure the “provision of medical preventive, treatment, health, and psychosocial services and provision of the relevant medical reports to the special needs persons and to persons taking care of them provided that such special needs persons and those taking care of them are not covered by any other health insurance system” (article 3). thus, qatar's main provisions on disability seem aimed to ensure persons with disabilities can access to healthcare without discrimination. a physician determines whether the individual impairment qualifies as a disability, establishing if it is temporary or permanent. nevertheless, even if access to healthcare is guaranteed, persons with psychosocial and intellectual disabilities have historically lacked the opportunity to take decisions regarding their health. there are some pre-crpd pieces of healthcare regulation in qatar that give the disabled a voice, possibly placing the country at the vanguard of compliance in this field. however, not all regulations are so progressive, as we will see below. 20 the supreme council for family affairs has been phased out and part of its functions have been assumed by the department of family affairs at the ministry of administrative development, labor and social affairs. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 29 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains today, hamad medical corporation (hmc), created by decree no. 35 of 1979 and amended by decree no. 38 in 1987, is a conglomerate of hospitals and outpatient services that represents qatar's de facto national health service. it provides universal coverage to nationals and residents, and most of its services are available for all on a free or nearly free basis. in the context of the prevailing medical and rehabilitative model of disability in qatar, hmc's policies and regulations are the obvious places to identify issues related to the right to healthcare within the healthcare system for persons with disabilities. it is among hmc regulations that we have found a policy on informed consent (cl 7226, september 2014), which states that minors or incompetent patients must act through a legal guardian. competent patients are, in the policy's definitions, persons over 18, able to understand an illness, able to understand consequences and alternative treatments offered, and able to make and communicate choices. to this end, under the policy on “patient and family bill of rights and responsibilities” (cl 7225, rev. january 2005), patients have the right to be informed along with their legal representative or legal guardian, who may be required to be present during the explanation of medical information. this possibility should be understood as a guarantee for persons with disabilities since it can be interpreted as assistance rather than the old-fashioned substitution model. hmc's policy on informed consent, in turn, mentions a procedure in cases when an interpreter is needed. this protection should be interpreted broadly in order to assist persons with sensorial or mental disabilities (including psychosocial and intellectual disabilities) whose communication problems require the use of special languages such as sign language or other supports. in general it is possible to extend the protection of persons with disabilities by expanding, through interpretation to clinical care, the existing policies of the qatar regulations and guidelines for research involving human subjects21, which consider “handicapped” or “mentally disabled” persons as vulnerable persons. hmc's policy cl 7221 on the care of vulnerable patient population only refers explicitly to “patients with emotional or mental illness”, but persons with intellectual disabilities may be also included. so, the accommodations provided by this policy, in our criteria, could be incorporated by use and practice; therefore, although a written interpretative policy would be desirable, we do not consider it absolutely essential. in our view, progressive, crpdcompliant policies can be applied using existing hmc regulations. in the specific domain of mental health, significant improvements have taken place in qatar in the recent years, but there is still a long way to go22. the great milestone was 21 approved by the qatar health research ethics committee and edited by the qatar supreme council of health. 22 the 2015 annual report of the national human rights committee on the situation of human rights in the state of qatar and the committee activities, p. 73 and p. 55, said that “mental disability constitutes the main challenge, as this group is facing the social exclusion” and included some specific observations about mental patient conditions. available at http://www.nhrc-qa.org/wp-content/uploads/2014/01/93621-national-humanrights-english.pdf (last accessed january 3, 2017). the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 30 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig the approval of qatar’s national mental health strategy 2013–201823 (shar that aims to reform the mental health system in order to achieve two main objectives: to raise public awareness and reduce the stigma associated with mental illness, and to provide the best possible inclusive mental health services for the people. so, the strategy clearly supported a shift “from the model of patient hospitalized in psychiatric departments to the model of attention in community services”(sharkey 2017: 18-21). this vision is fully in accordance to the crpd social model based on the principles of “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons” and “full and effective participation and inclusion in society.”24 hmc has recently launched services for the implementation of the strategy,25 focused on in-home, residential, and community support. the creation of a network of community-based specialized mental health centers and the implementation of the mental health home care is worth mentioning. according to the strategy, a mental health law to safeguard the human rights of persons with a mental illness was to be enacted in december 2015. finally this law was approved more than a year overdue. the law 16/2016 on mental health gives “psychiatric patients” specific rights (related to being informed about their health condition and their rights;26 related to their treatment environment;27 related to their medical treatment,28 and related to their independence and privacy29). it also introduces some penalties to avoid abuse or neglect by medical staff. for the first time, the law on mental health details when a patient in qatar can be forced to be hospitalized in a mental health institution.30 according to the law, compulsory 23 general secretariat, supreme council of health, 2013, qatar’s national mental health strategy. changing minds, changing lives, 2013–2018. available at http://nhsq.info/app/media/1166 (last accessed march 31, 2017). 24 according article 19 of the crpd, related to the right to live independently and be included in the community. 25 available at https://www.hamad.qa/en/hospitals-and-services/rumailah-hospital/hospitalservices/clinical%20departments/pages/department-of-psychiatry.aspx (last accessed january 3, 2017). 26 for example the right to receive an in-depth explanation, in an understandable way, of all rights set out in the law, immediately after being admitted, including the right to file a complaint in accordance with the applicable procedures. 27 the law establishes, for example, that the patient’s individual rights shall be observed by way of providing a health service and a humanitarian setting that preserves his/her dignity and enables his/her medical and personal rights. 28 according to the law, the patient shall access the required treatment according to the widely recognized medical standards, shall be provided with the opportunity to be effectively and continuously involved in the treatment process and shall be consulted in all matters related to his/her treatment. 29 including the right to be protected from commercial and sexual exploitation, physical and psychological abuse, and humiliating treatment in any way. 30 before the approval of this law there was a lack of general regulation on forced institutionalization of persons with mental disabilities but this practice seemed exist. regarding this issue, the un committee on the rights of persons with disabilities expressed its concern “about the involuntary detention of persons in the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 31 http://nhsq.info/app/media/1166 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains admission shall only be permissible a) in case the deterioration of the health and the psychological condition of a person with a psychiatric disease is probable and imminent b) in case the symptoms of the psychiatric disease represent a serious and imminent danger to the safety and health of the patient and other people.31 these provisions, that are very similar to other national legislations and introduce some safeguards, serve as a positive step in comparison with the previous lack of regulation. however, the un committee on the rights of persons with disabilities has made a general clarification in the sense that these kind of provisions allowing involuntary detention of persons with disabilities based on dangerousness, alleged need of care or treatment or other reason tied to mental health diagnosis are contrary to the right to liberty recognized in article 14 of the crpd.32 other aspects of the law on mental health, such as the role of legal guardians in the case of legally incompetent patients and the regulation of compulsory psychiatric treatment, may be also problematic from the point of view of the crpd.33 to fully comply with the crpd, qatar should adopt measures aimed at ensuring that the legal grounds upon which restriction of liberty of an individual is determined are separated from their disability and that assistance should be offered to persons with psychosocial disability to make their own decisions about medical treatment, including in crisis situations. specialized institutions on the basis of their impairment as well as the deprivation of liberty based on disability including intellectual and/or psychosocial disabilities.” see concluding observations. crpd/c/qat/co/1, para. 27. in any case in the penal field law 23/2004 promulgating the criminal procedure sets out compulsory detention and institutionalization for persons with disabilities who are suspected of being authors of criminal acts and it also allows that the victims of crime, who have a mental disability, may be placed temporarily in a therapeutic facility. both aspects are related to access to justice and the committee also has expressed its concern about them. 31 involuntary admission requires the approval of the consultant psychiatrist and notification to be sent to the patient’s family or guardian, the director of the treatment institution and also to the competent administrative body within 24 hours of admission. the law also lays down the circumstances in which patients can be made to remain in the hospital, even if they have admitted themselves voluntarily. 32 committee on the rights of persons with disabilities, guidelines on article 14 of the convention on the rights of persons with disabilities: the right to liberty and security of persons with disabilities, adopted during the committee’s 14th session, held in september 2015. available at http://www.ohchr.org/documents/hrbodies/crpd/gc/guidelinesarticle14.doc (last accessed january 3, 2017). according the committee, article 14 in the crpd prohibits the deprivation of liberty on the basis of actual or perceived impairment “even if additional factors or criteria are also used to justify the deprivation of liberty.” 33 the law also specifies that electroconvulsive therapy is permitted in qatar, but only under general anesthesia. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 32 http://www.ohchr.org/documents/hrbodies/crpd/gc/guidelinesarticle14.doc p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig 2.4. education there are three different models for schooling persons with disabilities: segregation, integration, and inclusion. inclusive education is key not only for the personal development of those with disabilities but also in order to build a more inclusive society. this model of education demands that learning environments are physically, attitudinally, and methodologically aligned with the universal design for learning. our impression, from recent discussions with experts and key informants, is that there is ample consensus among educators in qatar for the need to embrace this model.34 consistently, qatar seems to be going through a paradigm shift. the government made public that the supreme education council was committed to a new teaching philosophy for children with special needs. within this policy, “all students deserve the right to participate in all educational experiences” and “the supreme education council believes that whenever possible, special needs students should be taught in a normal classroom setting.”35 although the language might seem anchored in the “special needs” point of view, the philosophy to which the qatari government is committed is a major step in the direction promoted by the crpd. this step, despite the fact that it is focused on integration, will pave the way to move quickly towards the inclusive model. most countries are still at the integration stage. to reach the point of full inclusion, qatar will need the new philosophy to percolate down to all agencies and institutions involved in education. the challenge is no small one. in our opinion, shifting towards the new paradigm will require a degree of legislative reform. free education until the age of 18 is a constitutional right (articles 25 and 49) in qatar. it is mandatory for children to be in school until that age or until they finish secondary school, whichever happens first (law 25/2001 on compulsory education). law 2/2004 on persons with special needs includes the rights of persons with special needs to access education and rehabilitation relevant to their developmental potential (article 2.1). law 25/2001 on compulsory education, in turn, sets out that “any child who develops an illness or disability that prevents him or her from attending public or private schools is excused from mandatory education for the period of such illness or disability in accordance with a decision from the minister based on a certificate of a competent medical authority at the supreme council of health. this exemption also applies to any child suspended from school due to temporary circumstances. exemption 34 in march–april 2016, our team held a number of meetings and interviews with experts and key stakeholders on this and other issues related to our research. please see acknowledgments for further details. 35 available at http://portal.www.gov.qa/wps/portal/topics/education+and+research/special+needs+education (last accessed january 3, 2017). the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 33 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains from mandatory school attendance shall cease when such illness, disability, or temporary circumstance no longer affects the child” (article 8). this text becomes obsolete in the light of the new paradigm embraced by the qatari educational authorities. it is clear, first, that it follows the medical model of disability, which considers disability a health issue. on the other hand, the new paradigm demands that the educational system adjust to the child's personal disability situation. this means that the state should set up an accessible school system, with adequate supports to guarantee children with disabilities the right to equal education. the now outdated text of law 25/2001, instead, exempts children with disabilities, or illness, from the compulsory education system. therefore, the law, instead of including or integrating, actually removes children with disabilities from the mainstream, mandatory educational system. this legal clause should be rewritten in order to represent the actual philosophy adopted by educators and authorities in qatar, which would, in turn, be consistent with the mandates of the crpd. meanwhile, although somewhat unsystematic, major efforts have been made in the last few years to enable the inclusion of children with physical disabilities in general schooling (al attiyah a. and mian m. 2009: 29). there has not been a similar drive on behalf of the children with intellectual disabilities in qatar. in that regard, the un committee on the rights of persons with disabilities expressed its concern regarding the steps taken by the country to provide reasonable accommodation to all students with disabilities in mainstream schools. it also commented on the need for an inclusive education strategy, being concerned that only students with certain kinds of impairments attend mainstream education while others are enrolled at separate—which the committee termed “segregated”—facilities.36 the committee most likely meant that children with disabilities are normally referred to the shafallah center for children with special needs, a specialized educational institution for boys and girls with intellectual disabilities. in this otherwise very competent, prestigious institution, children are educated, but not integrated, let alone included, into the mainstream system in the way educators, authorities, and the crpd unanimously promote. the 2014 report of the national human rights committee (nhrc), the agency for the protection and promotion of human rights in qatar, mentions that the supreme education council has assumed the responsibility of integrating “special needs children in independent schools,”37 and that in such capacity, the council has produced reliable information on programs and budget. however, the nhrc mentions in its report that as of 36 concluding observations. crpd/c/qat/co/1, para. 43. 37 “independent schools” refer to the majority of qatar's primary and secondary public schools. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 34 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig then, “there is no accurate information regarding the progress in said programs.”38 finding that information is beyond the scope of our study. however, a specific pilot project to promote the integration of children with autism in mainstream education has been developed in some areas to the north of the country. despite substantial progress being made in qatar to incorporate people with disabilities into educational spaces, a coordinated program is still required. at the same time, the inclusion of children with intellectual disabilities remains a challenge to be addressed. additionally, the issue of vocational training, connected to the right to work, is yet to be addressed, although national authorities are developing some initiatives in this field. 2.5. labor and employment persons with disabilities have, worldwide, a lower level of activity and employment rates than the rest of the population. until recently, persons with disabilities were often considered unable to work. when disability started to be seen as a medical issue, most societies implemented rehabilitative measures aimed at repairing the individual's disabilities. this medical model was an advancement from the darker days of marginalization of the disabled. however, in the social model, disability arises from the interaction between the individual's impairments and social barriers. thus, the problems a person with disabilities encounters in joining the labor market have to do with socially constructed barriers, either physical, communicational, or attitudinal. we know now that it is the work environment that must be adapted to the person with disability, not the other way around. qatar is paving the way for persons with disabilities to enjoy their right to work. however, the approach is based on specialty, and usually persons with disabilities are placed into niche tasks within the range of their perceived ability. law 2/2004 on persons with special needs considers, as a right, the “provision of work that is appropriate to their abilities and rehabilitates them in both the public and private sectors” (article 2.5). furthermore, under this same law, persons who are unable to work shall be entitled to a monthly pension (article 9). the underlying principles of the law are rooted in the medical and rehabilitative model of disability. in this framework, personal abilities, which should be improved by 38 national human rights committee, report of the national human rights committee (nhrc) on the situation of human rights in the state of qatar and the committee’s activities during the year 2014, p. 48. available at http://www.nhrc-qa.org/wp-content/uploads/2014/01/en_2014-nhrc-report_finalss2.pdf (last accessed january 3, 2017). the 2015 nhrc report on the situation of human rights in the state of qatar, cit., p. 73, stresses the difficulties in access to education for persons with “mental disabilities.” the methodology of this report included meetings with persons with disabilities and their families. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 35 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains rehabilitation, are the condition for work. the crpd, in contrast, demands that barriers are identified in order to adapt the workplace to make it accessible and reasonably accommodating for persons with disabilities. under current qatar law these general and individual adaptations of the work environment are not compulsory, although some specific programs and institutions promote reasonable accommodations. however the scope of these measures is still very narrow. law 2/2004 establishes that two percent of job positions in the public sector, and a similar percentage for private companies employing more than 25 workers, must be allotted to persons with disabilities. consistent with the text of article 2.5, the right of persons with disabilities is the “provision of work that is appropriate to their abilities and rehabilitates them in both the public and private sectors”; thus there is no mandate in the law to adapt the workplace to persons with disabilities as required by article 27.1.i of the crpd. while the quota system could remain unchanged, it is quite clear that article 2.5 needs to be reworded in order to express the mandates of the convention. however, in their report to the committee on the rights of persons with disabilities, national authorities mentioned that they are considering the abolition of the quota system.39 the un committee on the rights of persons with disabilities recommended that qatar “adopt the policies and measures, including affirmative action, to significantly increase the employment rate of persons with disabilities, especially women, in the open labor market in public and private sectors.” the committee also recommended “that the state party adopt measures to develop placement services and continuing training, as well as self-employment and entrepreneurship opportunities.”40 despite these necessary improvements, there are very valuable elements in the current text of law 2/2004. article 7 states that persons with disabilities recruited in accordance with article 5 “may not be denied or excluded from any privileges or rights prescribed generally for staff employed at the organization for which the [person with] special needs works.” this is an expression of the crpd's principle of non-discrimination, to be enforced by penalties in case of transgression, as per article 11 of the same law, even if there seems to be no special procedure for the application of penalties, which would reinforce article 11's deterrent strength. 2.6. access to justice the right to access to justice is an autonomous fundamental right, and is also of critical importance to the enjoyment of all other human rights. such a broad concept encompasses the individual’s effective access to the systems, procedures, information, and locations used in the administration of justice. it also includes –in accordance with the 39 concluding observations. crpd/c/qat/1, para. 205. 40 ibid., crpd/c/qat/co/1, para. 50. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 36 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig crpd– not only the participation of persons with disabilities as users (i.e. parties or witnesses) in judicial proceedings, but also their contribution to the administration of justice as judges, prosecutors, or other lawyers (ortoleva 2011: 281-320). international experience shows that persons with disabilities are all too often denied access to justice on an equal basis with others. they face barriers usually related to the secular medicalization of disability, among them a lack of legal capacity, lack of accessibility and accommodation, and lack of information and awareness of rights and remedies, not to mention financial barriers, stereotyping, and prejudice.41 these barriers usually stem from the fact that justice systems are designed for the standard citizen and, despite some provisions, are not sufficiently sensitive to the needs of persons with disabilities. qatar, to a considerable extent, follows this pattern. qatar’s constitution guarantees to all individuals the right to access justice (article 135), and stipulates that “the law shall specify procedures and manner of exercising this right.” however nowadays these procedures and conditions are not inclusive enough for persons with disabilities and do not ensure the full enjoyment of the right access to justice on equal terms. there is, thus, an urgent need to review the procedural law incorporating the principles of crpd. the civil and commercial procedure law (law 13 of 1990) is applicable whenever there is an absence of other specific legislation. in the text, legal capacity is a prerequisite to becoming a party in judicial proceedings. the general rule is that incapacitated persons act before the courts through their representatives42 according to the current substitution system. the system provides safeguards such as the need for express court permission to initiate legal action or to appeal court decisions to higher authorities and to ensure that substitution mechanisms also protect the incapacitated from their representatives. these safeguards are especially strong in the case of victims of crime.43 however, as seen above, the substitution mechanism is obsolete in the light of the crpd, and there are relatively uncomplicated ways for qatar to move towards the crpd-advocated supporting model. in this framework, incapacitated plaintiffs would have the chance to have not only their interests protected but also to have their preferences considered and assessed in legal pronouncements. persons with psychosocial and intellectual disabilities face legal restrictions to participation as witnesses in judicial proceedings under the current legal framework. article 263 of the civil and commercial procedure law includes being “sound of mind” as a requirement to be considered a competent witness. this responds to an all-or-nothing 41 inclusion europe, justice, rights and inclusion for people with intellectual disability, 2007, pp. 23ff. 42 law 13/1990 civil and commercial procedure law. 43 law 223/2004 regarding promulgating the criminal procedure, articles 5, 6, and 20 among others. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 37 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains concept of legal capacity. this notion would need to be reviewed in light of the crpd's principle of non-discrimination. such a review would serve not only the interests and preferences of persons with intellectual and psychosocial disabilities but also justice in general, when their testimony is critical for the courts to judge a case. article 283 of the civil and commercial procedure law provides that “in the event of the inability of the witness to speak, he shall testify in writing or by signing if he is capable of making himself understood.” this flexibility is a positive aspect of the current legislation in terms of crpd compliance. however, it would be even better if there were an interpretive rule clarifying that “in writing” should be considered an example of how persons with communication difficulties could be assisted by other methods, including, but not limited to, assistive mechanisms, intervention of experts, and the provision of support depending on the situation and the needs of the witness. this would enable all persons with disabilities to make themselves understood and give testimony before the courts. this interpretation could be promoted and consolidated in practice by different mechanisms according to qatar´s legal and institutional framework. to an extent, this extended interpretation has been made in the sphere of criminal proceedings. as the latest report produced by qatar for the committee on the rights of persons with disabilities notes “…article 72 of the criminal procedure law [provides] that, in the case of litigants or witnesses who do not understand arabic, the public prosecutor must hear their statements through an interpreter… hence, when questioning deaf or mute persons as either suspects, witnesses or victims, the public prosecutor must employ the services of a sign language interpreter.” a clear and ample interpretive clause that extends the notion of “an interpreter” to all assistive methods for persons who cannot communicate could cut across all judicial spheres, since both law 13/1971 on the system of the courts of justice (article 43) and law 10/2003 promulgating the law on judicial authority (article 16) also refer to the intervention of an interpreter to hear the statements of parties or witnesses who are unable to speak arabic. although we believe that the above-mentioned suggestions would immediately advance access to justice for persons with disabilities, it cannot be ignored that the committee on the rights of persons with disabilities has expressed concern about the lack of legal aid and assistance and procedural accommodations and programs specifically designed to support persons with disabilities in the justice system. the committee has recommended that the state train its court staff, judges, police, and prison staff to uphold the rights of persons with disabilities, including the right to a fair trial and the obligation to provide reasonable accommodations. qatar's courts administration would need to set up the correspondent infrastructure to remove all physical, informational, and communicational barriers. however, assessing such infrastructure falls beyond the scope of our research. section 7 of law 23/2004 regarding promulgating criminal procedure code, addressing the issue of “mentally disabled suspects”, raises concerns from the crpd's the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 38 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig perspective. article 209 allows the forced placement under observation in a specialized therapeutic facility of a suspect suffering from “mental disability or serious mental illness.” according to article 212, these suspects shall not be subjected to criminal proceedings but shall be placed in a therapeutic facility until their release on the basis of a medical report. although the law on mental health regulates the annual review of all placements and establishes that these patients shall possess all rights enjoyed by other “psychiatric patients,” this detention implies a special deprivation of liberty on the grounds of disability without determining the suspect's participation in the offense and without the requirements that qatari legislation itself establishes in the case of precautionary detention. as the committee on the rights of persons with disabilities noted, according to qatari legislation, “persons with intellectual and/or psychosocial disabilities accused of an offense are declared unfit to stand trial and not given due process.”44 provisions in current qatari legislation regarding “mentally disabled suspects” are incompatible with articles 5, 14, and 13 of the crpd and should be reviewed. persons with psychosocial disabilities suspected of committing a crime should have all the guarantees of due process and should be provided with the necessary support to exercise their right to a defense. the primary response in these cases should be to aim not to deprive individuals of their liberty in therapeutic facilities, but rather to provide them with social and community mechanisms and services to promote their inclusion in the community. the committee on the rights of persons with disabilities has also expressed its concern about victims of crime with intellectual and/or psychosocial disabilities who may be temporarily placed in therapeutic institutions while their case is being resolved. this measure, which has a protective aim, may not be compliant with the crpd, given that it implies a deprivation of liberty based on disability. in the crpd framework, when special measures of protection are needed, the will of the victim should be taken into account and support for the expression of their preferences should be provided. although prisoners with disabilities have the same rights as other prisoners in qatar, there are no legal measures or protocols to ensure the accessibility of facilities, educational programs, and services, or the provision of reasonable accommodations and support. despite guarantees provided in qatari legislation, with respect to their ability to seek legal redress and file grievances, those inmates are not guaranteed accessibility to these proceedings. this is also true in relation to the conditions of detention in deportation centers. 44 concluding observations. crpd/c/qat/co/1, para. 27. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 39 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains 2.7. participation participation in the community is one of the goals of the crpd, aimed at eliminating all traces of the discredited norm of keeping persons with disabilities hidden in order to protect either them or society from their supposed ill influence. participation may be considered from different angles. firstly, participation is, for the convention, a means by which all individuals are empowered to make social decisions. accordingly, public policies and rulings should be developed in coordination with those affected. this participation is usually channeled through social organizations that represent the interests of persons with disabilities. secondly, in a more traditional understanding, participation refers to the individual’s right to political participation. thirdly, participation is understood as participation in the community. the qatari constitution has a number of provisions that guarantee these different participatory rights. article 42 guarantees “the right of citizens to vote and to be elected in accordance with the law.” article 44 articulates “the right of citizens to assemble in public,” while article 45 protects “the right of citizens to establish associations.” article 47 establishes the right to free speech, the basic tool for political and social participation in public affairs. these general principles are assured through specific legislation on behalf of persons with disabilities. in effect, law 2/2004 mandates that the state secures the participation of persons with disabilities in decisions related to their own affairs (article 2.9) through establishing procedures and guarantees of participation. article 3, in turn, states that the supreme council for family affairs shall work to ensure opportunities to participate in sports and entertainment and recognizes the need to develop the abilities of persons with disabilities (article 3.5) and to provide special services in the fields of care, relief, vocational training, family services, technology, sports and entertainment (article 3.6). the general and special legal framework set the basic legal rights for participation. however, other pieces of legislation may need to be reviewed. for example, decree 17/1998 regarding the election of members of the central municipal council, elections that are regularly held in qatar, establishes that when voters are unable to mark their ballot, they may communicate their choice orally only to the president of the polling station, who will mark their ballot card and put it in the ballot box. although this procedure is aimed at guaranteeing the right to vote, it compromises the secret nature of voting.45 as the committee on the rights of persons with disabilities has pointed out, legislative and other measures should guarantee accessibility to ballots, election materials, and polling stations, while voters with disabilities should have the right 45 ibid. crpd/c/qat/co/1, para. 51. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 40 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig to choose the person who will assist them in the act of voting.46 it should be mentioned that the supreme council for family affairs established a committee to promote the participation of persons with disabilities in elections. this committee organized a seminar on the subject in 2015, and materials of the national human rights committee (nhrc) on awareness and education of political rights were translated into braille.47 how the right to participation translates into effective opportunities to participate is beyond the scope of our study. however, it can be said that currently there is a range of interpretations of the means by which disabled persons can fully participate. the un committee on the rights of persons with disabilities pointed out that in the past there was a lack of consultation with both individuals with disabilities and with independent organizations regarding disability-related policies and the process of implementation of the crpd.48 the 2010 special rapporteur mentioned that what was required was the “establishment of a federation of all civil society organizations of persons with disabilities in qatar.”49 along these lines, the nhrc's 2014 report on the situation of human rights in the state of qatar remarked that “qatar does not have specialized associations for certain types of mental disabilities such as autism, mental paralysis, down’s syndrome, and others, unlike the neighboring countries, which have such associations.”50 regarding the right to freedom of expression and opinion, and access to information, the committee on the rights of persons with disabilities urged the recognition and promotion of the use of qatari sign language “to ensure the involvement of and consultation with the qatari deaf community in the formulation, implementation, and monitoring of all sign language policies, projects, and activities of the state party at the 46 general comment no. 2 on accessibility, may 22, 2014, crpd/c/gc/2. available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=crpd/c/gc/2&lang=en (last accessed april 1, 2017). in particular the committee recommended qatar improve these aspects, concluding observations. crpd/c/qat/co/1, para. 52. 47 see the report on the nhrc and the qatar social and cultural center for the blind’s seminar on the political rights of persons with disabilities (april 2015). available at http://www.nhrc-qa.org/en/the-nhrc-andqatar-social-and-cultural-center-for-the-blind-held-a-seminar-on-the-political-rights-of-persons-withdisabilities/ (last accessed january 3, 2017). a report of the nhrc working group on monitoring the elections of the central municipality council in 2015 concluded with some recommendations (included in the 2015 nhrc report on the situation of human rights in the state of qatar, cit., p. 41). 48 concluding observations. crpd/c/qat/co/1, para. 9. 49 un special rapporteur on disability shuaib chalklen, mission to qatar (march 9–13, 2010) preliminary observations, p. 2. available at www.un.org/disabilities/documents/specialrapporteur/qatar_2010.doc (last accessed january 3, 2017). 50 nhrc, report of the national human rights committee on the situation of human rights in the state of qatar 2014, cit., p. 50. the 2015 nhrc report on the situation of human rights in the state of qatar, cit., p. 75 also pointed out the “lacking of sufficient number of civil society organizations that concerns with disability issues”. the crpd committee also expressed its concern about the lack of diversity in the range of independent organizations with disabilities, concluding observations. crpd/c/qat/co/1, para. 9. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 41 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains national and regional levels.”51 although some improvements are needed, key informants have reported to our team that the deaf community in qatar is working hard to promote qatari sign language. with respect to the right to participate in cultural life, some inclusive initiatives have already been developed in specific areas such as sports,52 but major efforts are necessary in other areas. qatar’s ratification of the marrakesh treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled, should enable blind persons and persons with disabilities to access printed materials.53 2.8. audiovisual accessibility accessibility, in general, is the main axis around which the rights of persons with disabilities revolve. accessibility overcomes discrimination and is an indispensable means of achieving the effective participation of persons with disabilities in the community. highlighting its importance, the role of universal accessibility is recognized in the preamble to the crpd "in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms." it is also included in the general principles of article 3. article 9 of the crpd is entirely dedicated to this principle: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” throughout the convention, universal accessibility is justified by reference to three other rights: independent living, participation in social life, and equal opportunities.54 two different means of achieving accessibility are usually highlighted: universal design and reasonable accommodation. a comprehensive sense of accessibility involves: (i) universal design, which functions as a general principle; (ii) accessibility measures, which appear when universal design is not satisfied; (iii) reasonable accommodations, which arise when accessibility is not universal. discrimination arises if possible and reasonable accessibility is not universal. 51 concluding observations. crpd/c/qat/co/1, para. 40. 52 ibid., crpd/c/qat/1, paras 214–216. 53 ibid., crpd/c/qat/co/1, paras 53 and 54. 54 this point of view is also assumed by the committee on the rights of persons with disabilities in the general comment no. 2 on “accessibility”, ibid., crpd/c/gc/2, adopted april 11, 2014. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 42 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig the crpd includes universal accessibility to buildings, roads, transportation, and other physical facilities (schools, hospitals, workplaces) as particular requirements in its accessibility stipulations. it also includes access to information services, communications, and electronic services, fields of singular relevance given that they are critical for the articulation of many other rights, most particularly in this era of information technologies. in light of the crpd, there is an obligation on the part of both state authorities and the private sector to ensure accessibility to persons with disabilities. communication access opens the door to information, opinion-building, education, leisure, and culture. although, as noted previously, the committee on the rights of persons with disabilities qatar does not have a general framework to ensure accessibility for persons with disabilities, on an equal basis with others, to all facilities and services open to or provided for the public,55 qatari legislation on information technology and communications is quite progressive regarding persons with disabilities. the sectorial legislation and most recent policies appear updated. the ministry of transport and communications (previously called the ministry of information and communications technology) has different strategies that are designed to promote the rights of persons with disabilities and has created important institutions in this field.56 according to article 3 of law 36/2004 on the establishment of the supreme council for communication and information technology (ictqatar), the council's mission is to regulate both the communications sector and information technology in general. in september 2011, the council adopted qatar's eaccessibility policy. according to this rule, accessibility and inclusion should be pursued for persons with disabilities, and the elderly, identifying a number of barriers in the field of information technologies. on the other hand, in june 2010, with the participation of ooredoo, the national telecom provider, along with vodafone qatar, qatar national bank, and microsoft, ictqatar created the qatar assistive technology center (mada),57 a public–private nonprofit center for assistive technology. mada's aim is to connect persons with disabilities to the world of information and communication, increasing their opportunities through innovation and by promoting new and trusted technologies and services. mada's operational strategy is based on three pillars—education, employment and community— and its work has become a point of reference in arab region. 55 concluding observations. crpd/c/qat/co/1, para. 19. 56 such as the digital strategy, which aims at facilitating everyone's access to basic technologies, and at providing the skills needed to use certain technology. see the ministry of transport and communication’s digital inclusion strategy, available at http://www.ictqatar.qa/en/digital-society/digital-inclusion (last accessed 31 march, 2017). 57 for further details, see https://mada.org.qa/en/pages/default.aspx. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 43 http://www.ictqatar.qa/en/digital-society/digital-inclusion the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains the communications regulatory authority58 (cra), created in 2014 and tasked with ensuring competition and consumer protection in the telecom market, developed the telecommunications consumer protection policy (january 2014) and the code on advertising, marketing, and branding (september 2014). qatar’s e-accessibility policy places a range of obligations on service providers in relation to services for persons with disabilities including the provision of accessible handsets and user interfaces, an accessible public payphone service, accessible telecommunications services, and accessible emergency services. meanwhile, the cra's code on advertising, marketing, and branding, aimed at regulating advertisements and promotions of products and services, also includes some rules for the protection of vulnerable consumers and consumers with special needs. audiovisual accessibility is at the vanguard of compliance with the mandates of the crpd, although some minor—but conceptually important—adjustments could be recommended. one is the use of the language of rights and human rights, as promoted by the crpd. the other is that the different agencies working in the sector may face coordination issues due to their varied natures and structures. last, but not least, the rules are clear, but the e-accessibility policy is not binding and there is no precise schedule of penalties in cases of infraction. 3. conclusions this section aims to present some conclusions related to the fields explored in the previous pages, together with some recommendations on general changes required to qatari law for a clear, durable and unquestionable implementation of the crpd. regarding qatar´s general approach towards disability, the main conclusions are: 1. the key challenge faced by qatar in order to implement the crpd is to introduce the social model and the human rights-based approach to disability replacing the medical model, the point of view of assistencialism and the strategy of specialized solutions. 2. full compliance with the crpd requires a new law on disability, adapting the principles of the convention to the qatari context and introducing the required changes into qatar’s general rules. this law should assume a social definition of disability; introduce an explicit prohibition of discrimination on the grounds of disability; incorporate the key concepts of the crpd (regarding accessibility, universal design, reasonable accommodations, and independent living) and promote participation and full inclusion in society for persons with disabilities. 58 see their website at http://cra.gov.qa/en the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 44 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig 3. until the approval of this law qatari legislation may be reinterpreted in the light of the new paradigm, the principles, and the key concepts of the crpd in order to ensure a high standard of protection for the rights of persons with disabilities in the country. in relation to qatar’s private law, it is possible to conclude: 1. qatari law allows the deprivation of legal capacity based on a lack of “mental faculties” and establishes a substitution system in the decision-making process. the special law 2/2004 regulating this issue is the same as that applied in the case of minors, and the guiding principle is ensuring the best protection of the persons, without taking into account their personal will and preferences. 2. hence, legal reform is required to recognize: the full legal capacity of persons with disabilities on equal terms with others, their right to make their own decisions in all areas of life, and the obligation of the state to take into account their will and preferences. qatar should implement a system to support decision-making and to promote the autonomy of persons with disabilities and the exercise of their rights. 3. there are some mechanisms that could allow persons under guardianship to make certain decisions and some assistance measures have also already been established. these points imply an advantage over other national legislations and could be expanded to approximate in practice qatar’s compliance with the convention, pending the necessary legal reforms. these are the main conclusions related to health: 1. the approach to disability in qatar adopts the perspective of the medical model, so disability is understood to be a medical problem, health is a field with a considerable impact on the whole life of a person with disabilities in qatar. the adoption of the social model of disability will change this situation. 2. qatari law ensures persons with disabilities are given free access to healthcare, but it does not ensure that some of them (in particular persons with psychosocial or intellectual disability, especially if they are legal incapacitated persons) are able to make their own decisions about their treatment. perhaps one way to ensure this right would be to adopt a procedure similar to that employed in the case of a need for an interpreter, shifting the current representation model to an “assistance in taking decisions” model. guarantees provided by the policy on the care of [the] vulnerable patient population cl 7221 must be applied to patients with intellectual disabilities, and measures delivering assistance in the taking of decisions should be incorporated into the legal paradigm, protecting the rights of persons with disabilities. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 45 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains 3. qatar’s national mental health strategy 2013–2018 is the major tool employed to promote social inclusion of persons with psychosocial disability, focusing on the fight against stigma and the provision of community services. the new law on mental health is aimed at improving guaranteed rights of the patients, but it establishes provisions regarding involuntary hospitalization that, although similar to other national legislations, do not comply with the standards of the crpd and should be reviewed. the main conclusions in the field of education are: 1. qatar is facing a paradigm shift to a more inclusive model. however, some children with disabilities may remain outside of the educational system, and special education seems to be the chosen route for persons with intellectual disabilities. a more effective change to the model on the basis of an inclusive education is needed. 2. it is also important to clarify the educational curriculum from the point of view of diversity, ensuring continuity for persons coming from special systems, providing persons with disabilities the tools needed for vocational training, and enabling them to achieve the highest levels of education, if that is their choice. from the arguments previously noted, the conclusions regarding the labor market are: 1. qatari regulations on the right to work of persons with disabilities are anchored in the medical model. the social model should also be adopted in this field. 2. regulation of disability from specialty is a technical problem because the requirements of the law in respect of people with special needs remain isolated from general employment regulation. as a result, the structure that governs access to work seems to separate rather than include persons with disabilities as required as a central premise of the convention. measures determining labor rules for persons with disabilities must be linked to general labor rules. in relation to access to justice, these are the most relevant conclusions: 1. qatar’s justice system does not ensure equal access for persons with disabilities. 2. despite some current provisions designed to protect persons with disabilities and that could be used to promote their participation in judicial proceedings, the effectiveness of the right to access justice in the context of disability requires the following: recognizing the capacity of all persons with disabilities to participate; ensuring full accessibility of the justice system; providing procedural accommodations and supports; and implementing training programs to make professionals in the sector aware of the rights of persons with disabilities and ensuring they are able to communicate effectively with persons with disabilities. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 46 p. rodríguez del pozo, m. c. barranco avilés, p. cuenca gómez, khalid al ali, j. ansuátegui roig, r. de asís roig on participation, we conclude: 1. measures present in rules regarding elections for the central municipal council are not enough to guarantee the political participation of persons with disabilities in qatar. major efforts should also be made to ensure the rights of persons with disabilities to participate in cultural life, their right to freedom of expression and opinion, and their right to access information. 2. qatar must involve persons with disabilities in the process of implementing the convention. its support to promote the creation of civil society organizations in the field of disability is required. finally, our conclusions on audiovisual accessibility are: 1. although qatar should adopt legislation to ensure barrier-free public facilities and services, develop a comprehensive accessibility plan and justify accessibility obligations from the point of view of the human rights, some good initiatives regarding the audiovisual area have been identified. 2. however the current measures on audiovisual accessibility should also adopt the language of human rights. other necessary improvements in this domain are securing a better coordination between different agencies and the establishment of binding obligations with enforceable and effective sanctions for non-compliance. after the previous reflections, we can conclude that disability is a clear subject of concern in qatar, but also that there is still a long way to go in order to realize full compliance with the crpd. as we explained above, the implementation of the crpd in qatar requires reforms in the general framework of disability and in several sectoral legislations, although some changes may be advanced through a reinterpretation of current law. in any case, to ensure successful crpd implementation, qatar should adopt some additional measures: 1. create an institution responsible for leading disability policy and guaranteeing that measures are rooted in the principles of the crpd and the social model. 2. promote, strengthen, and empower associations representing the interests of persons with disabilities. this is to ensure that public decisions on persons with disabilities are created with their participation, in compliance with the framework of the crpd. 3. modify the social perception of disability and provide specific training to agents in all fields in which the crpd is relevant. the training of legal professionals, who have to make effective the rights of the persons with disability, is urgent. the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 47 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains references al attiyah a. and mian m. (2009). “disability in the state of qatar”, in marshall c.a. et al. (eds), disabilities. insights from across fields and around the world, vol. 3 “responses: practices, legal, and political frameworks”, praeger, westport. ortoleva s. (2011). “inaccessible justice: human rights, persons with disabilities and the legal system”, lsa journal of international & comparative law, vol. 17:2. quinn g. (2009). “an ideas paper on legal capacity”, disability, european foundation center, brussels. available at http://www.inclusionireland.ie/sites/default/files/attach/basicpage/846/anideaspaperbygerardquinnjune2009.pdf (last accessed march 29, 2017). sharkey t. (2017., “mental health strategy and impact evaluation in qatar”, bjpsych international, volume 14, number 1, february. snoj j. (2013). “population of qatar by nationality”, bq magazine. business in qatar and beyond, december 18. available at http://www.bqmagazine.com/economy/2013/12/population-qatar (last accessed may 31, 2016). the age of human rights journal, 9 (december 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n9.2 48 the convention on the rights of persons with disabilities (crpd) and qatar's domestic legislation: the potential impact on the main legal domains0f pablo rodríguez del pozo1f maría del carmen barranco avilés2f patricia cuenca gómez3f khalid al ali4f javier ansuátegui roig5f rafael de asís roig6f keywords: disability, qatar, human rights, united nations. summary: 1. introduction 1.1. disability in qatar: general framework 1.2. key concepts in the incorporation of the crpd model into qatari legislation 2. crpd-sensitive areas 2.1. preliminary clarification 2.2. private law 2.3. health 2.4. education 2.... 1. introduction 1.1. disability in qatar: general framework 1.2. key concepts in the incorporation of the crpd model into qatari legislation 2. crpd-sensitive areas 2.1. preliminary clarification 2.2. private law 2.3. health 2.4. education 2.5. labor and employment 2.6. access to justice 2.7. participation 2.8. audiovisual accessibility 3. conclusions legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities ignacio campoy cervera1 abstract: the aim of this article is to carry out an in-depth analysis of article 7, “children with disabilities”, of the convention on the rights of persons with disabilities. first of all it is explained how the article 7 is the result of two different models of human rights: the “renewed” protectionism in relation with the children’s rights and the social model in relation with the rights of persons with disabilities. after, it is explained how was the development of the creation of article 7 within the ad hoc committee which was created for the elaboration of the convention. in an extensive section it is analysed the wording of article 7, particularly taking account of the general comments of the committee on the rights of persons with disabilities and the committee on the rights of the child. finally, the analysis of the meaning and scope of article 7 is completed, taking into account other articles of the convention and the jurisprudence of the european court of human rights. keywords: children rights, children with disabilities rights, human rights, convention on the rights of persons with disabilities, european court of human rights. summary: i. introduction. ii. article 7 in the light of the “renewed” protectionism and the social model. iii background and travaux préparatoires. iv. analysis of the wording of article 7 iv.1. paragraph 1. iv.2. paragraph 2. iv.3. paragraph 3. v. the inter-relationship between article 7 and other crpd articles. vi. the interpretation of article 7 in the european court of human rights. vii. concluding remarks. i. introduction article 7 of the convention on the rights of persons with disabilities (hereinafter the crpd), establishes: 1. states parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2. in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3. states parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right. article 7 crpd has to be considered the most important article in relation with the rights of children with disabilities in the human rights system, so is necessary to 1 universidad carlos iii de madrid, spain (ignacio.campoy@uc3m.es). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 116 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities have a good understanding of its meaning. this article has the aim to be a contribution for the correctly understanding of article 7 crpd. to achieve this best understanding, in the second section we will consider how article 7 is the result of two different models of human rights that have been developed in the historical evolution of human rights: the “renewed” protectionism in relation with the children’s rights and the social model in relation with the rights of persons with disabilities. in the third section, we will address the background and travaux préparatoires that were carried out within the ad hoc committee which was created by the general assembly of the united nations (in its resolution 56/1968 of 19 december 2001) for the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, until the crpd was finally approved. this analysis will allow us to identify the different positions that existed on to incorporate or not an article dedicated to children with disabilities, as well as with regard to its content. in the fourth section, we will analyse the wording of article 7, paragraph by paragraph, particularly taking account of the general comments of the committee on the rights of persons with disabilities and the committee on the rights of the child, with the aim to have the best possible understanding of its meaning within the human rights model. finally, we will dedicate the last two sections to complete the understanding of the meaning and scope of article 7 dealing with its connection with other articles of the crpd (section fifth) and its interpretation and application by the european court of human rights (section sixth). ii. article 7 in the light of the “renewed” protectionism and the social model article 7 crpd ought to be understood as the result of the application of the principles underlying the current paradigm of children’s rights to children with disabilities, in accordance with the modifications required by the social model of disability. the current paradigm of children’s rights was embodied in the 1989 united nations convention on the rights of the child (hereinafter the crc)2. as the new paradigm it was, its roots and implications have been very different and numerous. however, one could still claim that the fundamental change it resulted in -with a terminology that was quite successful in specialized literaturewas to stop considering the child as a legal “object” of protection and start considering him/her as a legal “subject” instead. in other terms, it led to cease regarding the child as an admittedly valuable person, who therefore deserves the protection he/she ought to be guaranteed by law, but who is nonetheless characterized by being a defenceless, imperfect and incapable person, and therefore disqualified, for the entire duration of his/her childhood, from exercising his/her rights. rather, it began to be considered that, although the child continues to be characterized by his special defencelessness and incapacity in essential aspects, thus justifying that emphasis still be placed on the special protection he/she must be provided, he/she is also a person who should be able to take, to the degree 2 in other works we have referred to the paradigm shift that occurred with the crc, moving from what could be considered a “traditional” protectionist model (which began developing in the seventeenth century) to a model that could be understood as “renewed” protectionism (which was already evident in the 1960s and 1970s, especially in anglo-saxon societies). an in-depth study of both models can be found in chapter iii of (campoy cervera, 2006, 421-600). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 117 ignacio campoy cervera possible, the relevant decisions for the direction of his/her life. thus, calling to mind the evolution of his/her capacities during the different vital stages of his/her development, the child’s opinion ought to be taken into account in all decision-making affecting him/her, even if it still has to be assessed, by qualified third parties, in accordance with his/her age and maturity. it therefore ensues, on the basis of this new paradigm of “renewed” protectionism, that two essential ideas regarding the recognition and protection of children’s rights must be considered: firstly, that through the law, certain basic aspects of the life of the child must be protected. those aspects, deemed necessary for his/her proper development as a person, can be considered to constitute, as per article 3.1 of the crc, “the best interests of the child”, which is the principle that had been sustained by “traditional” protectionism. secondly, that the child must participate, in accordance with his/her age and level of maturity, in the decision-making that is carried out with regard to those matters that affect him/her, as per article 12 of the crc, which is the new principle that would lead to the change promoted by “renewed” protectionism. thus are established the two fundamental pillars on which the theoretical construction and legitimation of the current model of recognition and protection of children’s rights is based. as already stated, the model was endorsed by the crc, and subsequently reflected in the last two paragraphs of article 7 of the crpd: protecting the best interests of the child and ensuring his/her participation in the decision-making bound to affect him/her3. the committee on the rights of the child itself has identified articles 2, 3.1, 6 and 12 of the crc as those that set out the general principles of the convention. this adds two supplementary articles as general principles. the general dimension of article 6 of the crc is clear: it recognizes the intrinsic right of every child to life, and establishes that states parties must ensure, to the maximum extent possible, his/her survival and development. this clearly provides the necessary basis for understanding that children are human beings, and that they therefore possess a dignified life that ought to be protected. however, we believe it is article 2, which establishes the right to non-discrimination as a basic principle, that deserves special attention here: “states parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”4. this article represents the first explicit mention of disability as a prohibited ground for discrimination, thus acknowledging that disabled children, like other children, are owed the obligation established by that article of the states parties “to ensure that all children within their jurisdiction enjoy all the rights enshrined in the convention”5. 3 along these lines, jorge cardona considers these two principles/rights as “revolutionary” in relation to the previous situation and as the “central axis of the paradigm shift” (cardona llorens, 2014, 23). we have established the relationship between these principles, advocating an interpretation of them that allows for the full incorporation of the rights of children, with or without disability, into the human rights model, in (campoy cervera, 2017b). 4 the second paragraph of article 2 of the crc extends the prohibition of discrimination from which children may suffer because of their parents, guardians or relatives. 5 united nations committee on the rights of the child “general comment no 9 on the rights of children with disabilities” (27 february 2007) crc/c/gc/9 (hereafter crc general comment no 9), para. 8. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 118 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities hence, article 2 is of special importance because it most directly establishes the connection between the rights of children with disabilities and the social model of disability6. in this regard, rafael de asís has identified as one of the four postulates that serve to generically describe the social model, that “the normative policy in the field of the rights of persons with disabilities must be inserted in the framework of equality and non-discrimination and, within that framework, in the field of the generalization of rights”7. it is along those lines that it was previously pointed out that article 7 of the crpd implies the extension of the current paradigm of the rights of children to children with disabilities according to the modification imposed by the social model of disability. indeed, there is an explicit connection between article 2 of the crc and the first paragraph of article 7 of the crpd, as well as between the two basic principles of articles 3.1 and 12.1 of the crc, and their recognition in paragraphs 2 and 3 of article 7 of the crpd. iii. background and travaux préparatoires the first reference to children with disabilities can already be found in the working paper presented by mexico at the first working session (held from 29 july to 2 august 2002) of the ad hoc committee which was created by the general assembly of the united nations (in its resolution 56/1968 of 19 december 2001) for the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities. however, the reference was made solely in what was then proposed as article 13, which addressed to “promote access for persons with disabilities to the medical and rehabilitation services they require so as to guarantee their right to health and to foster their autonomy and independent lives”. the object was to point out that it was one of the groups that should particularly be guaranteed “receive quality medical attention within state healthcare systems”8. in the final statement of 6 may 2003 of the disability african regional consultative conference, it was already stated that children with disabilities (along with other groups in particularly vulnerable situations, such as women and the elderly) face double oppression, and therefore, that particular “oppression has to be acknowledged and focused programmes developed to address it”9. furthermore, among the proposals compiled in the seminar of quito for the elaboration of the convention there was a call for the inclusion of a series of themes among the articles of the convention that would form a basic thematic structure; hence the “specific rights of vulnerable groups (children, the girl child, adolescents, women, ethnic minorities, older persons, among 6 this by no means diminishes the relevance of article 23 of the crc, which explicitly refers to the rights of children with disabilities and was key in the transition toward the social model. in this regard, the committee on the rights of the child noted in its general comment no. 9: “paragraph 1 of article 23 should be considered as the leading principle for the implementation of the convention with respect to children with disabilities (…) the core message of this paragraph is that children with disabilities should be included in the society…” (crc general comment no 9, para. 11). 7 the other three postulates that the author identifies are: “the correct approach to address disability from a normative point of view is that of human rights”; “disability is, above all, a situation in which people are or can be found in and not an individual trait that characterizes them”; and “disability has, in most cases, a social origin, so that measures aimed at satisfying the rights of persons with disabilities must have as their main target the society at large” (de asís roig, 2013, 16-17). 8 http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w1e.htm. 9 http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp11.htm. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 119 http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w1e.htm http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp11.htm ignacio campoy cervera others)” 10. in this manner, it was in the bangkok recommendations, which were made by the ad hoc committee in its second session, from16 to 27 june 2003, that it was stated that the convention should “stress that the situation of all disability groups and the diverse conditions related to gender, race, colour, age, ethnicity and other considerations must be taken into account, and recognize the impact of dual disadvantage and multiple discrimination faced by individuals such as, women, children or indigenous people with disabilities”11. at any rate, the first time a specific article was dedicated to children with disabilities -article 16was in the draft that was prepared by the working group established by the ad hoc committee in its 14th meeting, on 27 june 2003, and which conformed the basis for the negotiation among member states and observers12. indeed, although other articles in the draft also dealt with children with disabilities (for example, article 17, which addressed education), this integral dedication of an article to children with disabilities is fundamental. article 16 of the draft basically reproduced the provisions of articles 2 and 23 of the crc, but, as noted in a footnote, “duplicating article 23 in this context, therefore, may not adequately deal with the issues faced by children with disabilities. the ad hoc committee may wish to revisit this draft article so that it instead covers issues that affect children with disabilities, but which have not been dealt with elsewhere in the convention. examples could include the vulnerability of children with disabilities to sexual abuse and exploitation, of refugee children with disabilities, and of orphan children with disabilities”13. as a result, in the report of the third session, from 24 may to 4 june 2004, article 16 on the rights of children can be found in the draft of the convention. all the same, the first disagreements on the appropriateness of a specific article on children with disabilities were already made explicit at this time. representatives from different countries (such as ireland, on behalf of the eu, new zealand or israel), in discussing the article on 28 may 2004, expressed their doubts and/or reluctance regarding the convenience of an article on children with disabilities. their understanding was that it was not necessary, or could even diminish the strength of the rights that had already been recognized them in the crc. in a similar vein, the representative of liechtenstein, while acknowledging the appropriateness of the article, pointed out that it “could be kept concise by referring to all the rights of the crc, especially article 23”. nonetheless, during the debate that day, all the ngos present expressed themselves strongly in favour of a specific article on the rights of children with disabilities14. in any case, it is also interesting to take note of the different proposals on the final text to be incorporated into the working group draft: at times, because they 10 http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp13.htm. 11http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp10.htm. 12 the demand for dedicating a specific article to the rights of children with disabilities can also be seen in the chair's draft elements of a comprehensive and integral international convention on protection and promotion of the rights and dignity of persons with disabilities, of december 2003. as it is said in its introduction: “the draft is intended as a contribution to the deliberations of the working group in its work of elaborating a draft convention to be presented to the ad hoc committee”; and it dedicates its article 18 to the “rights of children with disabilities”, with a content that, in fact, is included in the more extend content of article 16 which is analyzed in the main text. the draft is available at http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm. 13 http://www.un.org/esa/socdev/enable/rights/ahcwgreporta16.htm. 14 http://www.un.org/esa/socdev/enable/rights/ahc3sum16.htm. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 120 http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp13.htm http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp10.htm http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm http://www.un.org/esa/socdev/enable/rights/ahcwgreporta16.htm http://www.un.org/esa/socdev/enable/rights/ahc3sum16.htm legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities address different issues that are particularly relevant for children with disabilities (as would be the prohibition of the sterilization of children and young people with disabilities)15; but most importantly, taking into account the final wording of the convention, it is the incorporation of two paragraphs upon the proposals of canada and uganda respectively, that acquires particular relevance. the former addressed the right of the children to participate in all matters affecting them: “states parties recognize the evolving capacities of children with disabilities in the exercise of their rights, and the right of children with disabilities to express their views freely on all matters affecting them, their views being given due weight in accordance with the child’s age and maturity”; the second stated, with regard to the best interests of the child, that “states parties shall ensure that in all decisions concerning children with disabilities whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration”16. in the report of the sixth session of the ad hoc committee, it was concluded, in paragraph 27, that “there was general agreement in the committee that some specific references to children with disabilities were needed in the draft convention. there was also general agreement that draft article 16 did not add much substance to what was already contained in article 23 of the convention on the rights of the child”17. as a result, three possible options were proposed with regard to the inclusion of children with disabilities in the draft convention: the inclusion of a separate article on children, “a reference in the preamble with a general statement in a draft article of horizontal application (such as draft articles 2, 4, or 25), or mainstreaming references in relevant thematic draft articles”18. faced with these possibilities, the international disability caucus clearly defended the need to establish a specific article for children with disabilities, because, ultimately, what was sought with it was “to ensure that the rights embodied both within the convention on the rights of the child and the present 15 representatives from different countries (new zealand, india or canada, among others) also pointed to the incorporation of other possible paragraphs that addressed specific aspects which could affect the lives of children with disabilities, such as early detection , alternative family care, or, as new zealand pointed out, “by addressing the ‘extra vulnerabilities’ of children with disabilities to rejection, abandonment”. 16 http://www.un.org/esa/socdev/enable/rights/ahc3reporte.htm. along the same lines, the national human rights institutions advocated for the incorporation of a paragraph dedicated to the best interests of the child and another to the right to participation (http://www.un.org/esa/socdev/enable/rights/ahc3sum16.htm). 17 report of the ad hoc committee on a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities on its sixth session, para. (http://www.un.org/esa/socdev/enable/rights/ahc6reporte.htm (a/60/266, annex ii, 17 august 2005, para. 27 (http://www.un.org/esa/socdev/enable/rights/ahc6reporte.htm). 18 ibid, para. 28. however, in the report of the facilitator it is stated that the “plenary on 2nd august 2005 generated debate that identified 5 approaches to ensuring that concerns on the rights of children with disabilities are adequately addressed”. it is added to the three referred to in the main text, the possibility to “have a combination of mainstreaming of children’s issues in all relevant articles and also have an article on children to cover the issues that are unique to children and cannot be included in any other articles in the draft convention”; or “to refer to children in the general articles as in (1) above and then specifically require, in the monitoring article, that state parties show how they have implemented all the provisions of the this convention with respect to children with disabilities; the article monitoring should also include an expert on the treaty body on matters relating children with disability” (http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 121 http://www.un.org/esa/socdev/enable/rights/ahc3reporte.htm http://www.un.org/esa/socdev/enable/rights/ahc3sum16.htm http://www.un.org/esa/socdev/enable/rights/ahc6reporte.htm http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm ignacio campoy cervera convention are fully respected for children with disabilities. without its inclusion, the risk is that they are marginalised in both”19. in any case, it is relevant to note that some of the key issues that were resolved in the meetings that took place between 4 and 11 august 2005 addressed concrete (but extremely important) issues for children with disabilities (such as protection from sterilization), but also the fundamental foundations for the model of the rights of children with disabilities. this included equality between all children (with and without disabilities) in the recognition and protection of rights (“the need to include the principle of equality with other children in the application of all human rights and fundamental freedoms. this will complement and reinforce the application of the crc with respect to children with disabilities”20), as well as the two essential principles: in first place, that of the best interests of the child (“the need to include the principle of “the best interest of the child” in all actions concerning children with disabilities under this convention”21), which is consistent with, but goes beyond, the idea that it is necessary to protect the child due to his special vulnerability22 (“because of the vulnerability of children due to their age, lack of autonomy or legal capacity as adults, children are entitled to protection that will address their particular situations and ensure their right to development. it is important that this convention recognizes this and makes provisions specifically address the rights in this convention as they apply to children”23). in second place, that of the protection of the possibility that the child participate in the exercise of his rights due to the evolution of his capacities, which is in turn consistent with the principle of child participation in all decision-making affecting him/her (“states parties shall ensure that children with disabilities enjoy a full and decent life, in conditions that ensure dignity, promote self-reliance and autonomy, and facilitate the child’s active participation in the community”24). in any case, the differences in the positions that were held on “whether there should be a separate article on children with disabilities, or whether the particular disadvantages and vulnerabilities of children with disabilities should be dealt with in a separate article or alternative approaches”, resulted in the fact that in the draft comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities, submitted by the chairman on the basis of discussion by the ad hoc committee, the article on the rights of children (which was now article 7 instead of article 16) was left blank. in his letter to all members of the committee, dated 7 october 2005, the chairman justified this by stating that “the wording for article 7 as found in the working group text did not 19 “article 16, children with disabilities. prepared by the international disability caucus”, http://www.un.org/esa/socdev/enable/rights/ahc6contngos.htm. 20 http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm. 21 http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm. 22 in this line, andrea broderick notes that on the travaux préparatoires: “the debate centred around two principal concerns. the first issue that arose at the negotiation sessions was whether it was in fact necessary to have a separate article on children with disabilities (…) the second, and related, issue that arose at the negotiation sessions was that if there was to be a specific article for children with disabilities, it must go far beyond and the content of international human rights law theretofore” (broderick, 2017, 199). 23 http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm. 24 see in the contribution by kenya http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 122 http://www.un.org/esa/socdev/enable/rights/ahc6contngos.htm http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm http://www.un.org/esa/socdev/enable/rights/ahc6facilitator.htm http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities receive a great deal of support, and it is clear that many delegations have problems with it. it did not receive general agreement as a good basis for our future work”25. the discussion on the best strategy on how to be most effective in the recognition of children with disabilities was held in the sessions of 1 and 2 february 201626. during these sessions, the facilitator’s text on women and children with disabilities were jointly discussed, and delegates maintained both the position of establishing a separate right for children with disabilities and integrating it into other articles of the convention (although the ngos that participated clearly opted for an article on the rights of children with disabilities). this led the chair to conclude that “regarding the question of whether or not to include separate articles on women and children with disabilities, there was clear support for the twin-track approach. many delegates favoured inclusion of separate articles, while others preferred to include the general provisions on women and children in article 4 on general obligations. the chair noted that most of those who preferred the latter also expressed their flexibility on the matter. there was undoubtedly clear consensus on the need to somehow address the particular problems and vulnerabilities faced by these two groups of persons with disabilities, however there was still disagreement as to the best manner in which to do so. the chair requested delegates to come to the august meeting with a flexible position and an open mind on this structural issue to facilitate quick resolution. he stressed that this issue is a matter of structure, not an issue of substance. for the moment, the chair noted that the most appropriate solution would be to amend articles 6 and 7 according to the discussions just held and then to bracket the language in the text issued for consideration at the eighth session”27. however, with regard to the debate on the content of article 7, the chair concluded, at the end of that debate on 2 february 2006, that “article 7(1) drew broad support. the emphasis on the need to broaden 7(2) to be consistent with the crc’s language “all actions concerning children” was generally supported. there was broad support for 7(3), however the discussion on 7(4) raised several issues. there was clear concern regarding the elements of this provision where there is overlap with 23(2 ter) and also with whether language similar to that in the crc would be appropriate here. these issues should be revisited at the next meeting. the proposal to merge 7(1), 7(2) and 7(3) drew reasonable support provided that all elements are retained in the convention, and many delegates supported including some elements of 7(4) in that merger”28. in any case, on 3 february, the committee adopted the draft report of the convention in annex ii (“international convention on the rights of persons with disabilities. working text”), which included a text for article 7 (children with disabilities) that was very similar to what would become the final version. although the wording of the text was different, its division into three paragraphs, as well as the content of each of them, was very similar to the final version of article 729. 25 http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm, paras. 42 and 43. 26 those can be consulted at http://www.un.org/esa/socdev/enable/rights/ahc7sum01feb.htm and http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm respectively. 27 http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm. 28 http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm. 29 http://www.un.org/esa/socdev/enable/rights/ahc7report-e.htm, a/ac.265/2006/2. thus modifying the proposals made by the facilitators, which included, in article 7, a fourth paragraph that stated: “every child with disability shall have the right to such measures of protection, assistance and care on the part of his or her family, society and the state as required by his or her minor status and are tailored to his or her individual circumstances. when a child with disability is deprived of his or her family environment or in the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 123 http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm http://www.un.org/esa/socdev/enable/rights/ahc7sum01feb.htm http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm http://www.un.org/esa/socdev/enable/rights/ahc7sum02feb.htm http://www.un.org/esa/socdev/enable/rights/ahc7report-e.htm ignacio campoy cervera ultimately, it would be at the eighth session that the definitive version of article 7 was adopted30. iv. analysis of the wording of article 7 iv.1. paragraph 1 the general meaning of the first paragraph of article 7 responds to the need to incorporate the basic principles of the social model of disability into the specific field of children’s rights. that is to say, it establishes that states must ensure that disability will never be an impediment for all children to enjoy, on an equal basis, their human rights and fundamental freedoms. this makes it fundamental to implement the principle/right of universal access. in any case, we shall proceed to analyse this basic objective based on the two parts into which the paragraph can be divided. “states parties shall take all necessary measures to ensure the full enjoyment by children with disabilities”. as indicated in the “general comment no 3 (2016) on women and girls with disabilities”, of the committee on the rights of persons with disabilities (crpd/c/gc/3), it must first be understood that these measures have to be taken in all possible areas: “measures can be of a legislative, educational, administrative, cultural, political, linguistic or other nature”. additionally, these must be understood as broadly as possible to achieve their objective, which, as have to be emphasized, is not only to ensure the enjoyment of all human rights and fundamental freedoms, but their “full enjoyment”. thus, it should be understood that the mandate is more demanding for states, which have to take “all necessary measures” to this aim, thus implying their obligation to respect, protect and fulfil the rights of all children with disabilities31. in this sense, it must be understood that the obligation “to respect” requires states parties to refrain from interfering with the enjoyment of the rights of children with disabilities; the obligation “to protect” means that states parties have to ensure that the rights of whose own best interest cannot be allowed to remain in that environment such protection and assistance shall be provided by the state”; followed by the comment according to which “the text of this article may be located in article 4 [dedicated to the general obligations]” (http://www.un.org/esa/socdev/enable/rights/ahcstata7sevsfacilitator.htm). 30 thus, the only change in the text approved at its 22nd meeting, on 5 december 2006, with respect to the text adopted at its 20th meeting, on 25 august 2006, was the replacement of “best interest” by “best interests” in the second paragraph. 31 in this sense, see in relation with women with disabilities, in the united nations committee on the rights of persons with disabilities “general comment no 3 on women and girls with disabilities” (25 november 2016) crpd/c/gc/3, par. 24 (hereafter crpd general comment no 3). this is despite the fact that the expressions employed in article 6 of the crpd are “…shall take measures to ensure the full and equal enjoyment by them [women and girls with disabilities]…” and “…states parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women…”; whereas article 7.1 states that “states parties shall take all necessary measures to ensure the full enjoyment…”. in the main text, we will employ, in relation to children with disabilities, the same wording that the committee uses in paragraphs 25 to 27 of the crpd general comment no 3 to explain these obligations in relation to women with disabilities, because it makes sense to think that it has to be the same regarding children with disabilities. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 124 http://www.un.org/esa/socdev/enable/rights/ahcstata7sevsfacilitator.htm legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities children with disabilities are not infringed upon by third parties, that includes “the duty to exercise due diligence by preventing violence or violations of human rights, protecting victims and witnesses from violations, investigating, prosecuting and punishing those responsible, including private actors, and providing access to redress and reparations where human rights violations occur”; and the obligation “to fulfil” imposes an ongoing and dynamic duty to adopt and apply the measures needed to secure the development, advancement and empowerment of children with disabilities. “of all human rights and fundamental freedoms on an equal basis with other children”. this is the part of the text in which the application of the social model of disability to the rights of children can clearly be seen. disability can by no means be considered any longer a reason to deny or limit the enjoyment of human rights and fundamental freedoms. this constitutes an obligation in accordance with the provisions of article 5 of the crpd and articles 23 and 2 of the crc: to ensure than the children with disabilities can enjoy their human rights on equal basis with other children is necessary to ensure the universal accessibility for all these rights. as stated in the general comment no 2 of the committee on the rights of persons with disabilities, “when defining accessibility standards, states parties have to take into account the diversity of persons with disabilities and ensure that accessibility is provided to persons of any gender and of all ages and types of disability”32. in fact, we are faced here with what is surely the key element to fulfil the obligation for children with disabilities to exercise all their rights on an equal basis with other children, and that is the need to remove existing barriers and ensure universal access to children with disabilities. this requires that the design be applied to all and that they receive the necessary support and, where appropriate, reasonable adjustments in the exercise of their rights. this is a basic structure, which is transcendental if we want to make real the claim that children with disabilities can exercise their rights on an equal basis with others33. the crpd refers to the necessary supports and the reasonable adjustments in different articles (as in articles 4, 9, 12, 16, 19, 20, 23, 24, 26, 29, 30 to the supports, and 2 -where a definition of reasonable adjustments is given-, 5, 13, 14, 24, 27 to the adjustments), although for children with disabilities the explicit references of articles 13 and 23 are particularly relevant. the basic idea is that when, despite the universal design and the accessible measures that had been taken, it is shown that in reality children with disabilities still cannot enjoy their rights and freedoms on an equal basis with others because of the existence of barriers that affect them as a specific group or even individually, states parties will need to ensure that such necessary supports are provided and ultimately the reasonable accommodation with which to deal with individual cases that have not been adequately addressed by the above measures, to ensure that all children, with or without disability, may enjoy or exercise their rights and freedoms on equal conditions. 32 united nations committee on the rights of persons with disabilities “general comment no 2 article 9: acccesibility” (22 may 2014) crpd/c/gc/2 (hereafter crpd general comment no 2) para. 29. 33 it can be seen a developing of these ideas in relation with the recent legislative amendment in july 2015 of the spanish system for the protection of children and adolescents, in (campoy cervera, 2016). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 125 ignacio campoy cervera a final consideration that needs to be made concerns the nature of the human rights and fundamental freedoms that are referred to in this paragraph. the answer stems from the confluence between the social model of disability and the “renewed” protectionism to which we referred to in the introductory section and that was also reflected in the section on the preparatory work. based on the discussions on how to recognize the rights of children with disabilities in the convention, it was clear that the idea was to make explicit as effectively as possible that children with disabilities, beyond certain specific rights (as could be the access to the comprehensive habilitation and rehabilitation services and programs referred to in article 26 crpd), had to have recognized the same rights and freedoms as the rest of the children and could enjoy them and exercise them on equal conditions. that is, disability could never be a source of discrimination for children. in this sense, art. 23 crc had been of historical importance, but it was necessary to emphasize that children with disabilities were, in the first instance, children, and that, therefore, states parties should ensure that they could enjoy the same rights and freedoms as other children on equal basis34. iv.2. paragraph 2 as pointed out in the introductory section, the two general principles on which the crc is based (apart from those of the right to non-discrimination -art.2and the right to life and development -art. 6) are the primary consideration of the child’s best interests -art. 3.1and the right of the child to be heard -art. 12. this is precisely the manner in which it is necessary to understand the reiteration of these two general principles in article 7 of the crpd, which explicitly adopts the same system of recognition and protection of the rights of children for children with disabilities. the drafting of the two general principles was confusing and in fact has given rise to different interpretations over the years35. however, in order to put an end to this situation of uncertainty, the committee on the rights of the child drew up two general comments regarding those two principles: crc “general comment no 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)” (29 may 2013) crc/c/gc/14 and “general comment no 12 the right of the child to be heard” (1 july 2009) crc/c/gc/c12. therefore, in clarifying the content of 34 needless to say, the progress that was made regarding children’s rights was enormous. however, we cannot complete our analysis of this first paragraph of article 7 without observing that this extension of the rights of children to the rights of children with disabilities also has a limitation derived from the application of the “renewed” protectionism model, but which, in our view, is not adjusted to the human rights model. article 7 crpd ensures that children with disabilities enjoy and exercise the same rights and freedoms as children without disabilities, but this implies that they also have the same limits to exercise them as the rest of the children. and those limits are unjustified according to the model of human rights. children with disabilities, like the rest of the persons with disabilities, should have recognized, as established in art. 12 crpd, legal capacity on an equal basis with others in all aspects of life, and therefore, states parties shall take appropriate measures to provide access by children with disabilities, as well as children without disabilities, to the support they may require in exercising their legal capacity. some ideas on this matter can be consulted in (campoy cervera, 2017a, 17-31), and are further developed in (campoy cervera, 2017b). 35 alston and gilmour-walsh already observed that the writers of the crc failed to explain how to determine the best interests of the child and that the application of the principle would to a great extend depend on the interpretations made, in (alston and gilmour-walsh, 1996, 10 and 15). a problem of vagueness that could also be ascribed to article 12, as we can observe in relation with its drafting process in (detrick, ed., 1992, 224-229). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 126 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities article 7, it is necessary to follow the indications given in the general comments by the committee on the rights of the child. “in all actions concerning children with disabilities”. in crc general comment no 14 it is analysed the phrase “in all actions concerning children” in paragraphs 17 to 24, and we know that the aim of the crpd is to extend the same system of children’s rights to children with disabilities, so the interpretation must be the same here. the committee on the rights of the child divides this phrase in three parts: “in all actions”, “concerning” and “children” (for us children with disabilities). the principal aim of the analysis is to understand the phrase in its broadest meaning. in this line, it can be said that the idea is that we have to understand that the best interests of the child shall be a primary consideration in all the decisions, acts, conduct, proposals, services, procedures and other measures that are taken or are not taken (omissions) and directly or indirectly affect children with disabilities as a group or in general as well as if they have an effect on an individual child with any type of disability. the phrase that has been cut in the article 7.2 crpd in relation with article 3.1 crc is referred to whom can take all those actions: “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”36. that phrase is analysed in the paragraphs 25 to 31 of general comment no 14. again the interpretation of the committee on the rights of the child is very wide, extended to any public or private “institution whose work and decisions impact on children and the realization of their rights”; ““courts” refer to all judicial proceedings, in all instances – whether staffed by professional judges or lay persons – and all relevant procedures concerning children, without restriction”; “the scope of decisions made by administrative authorities at all levels is very broad”; and the “adoption of any law or regulation as well as collective agreements”; even in paragraph 25 the committee felt the obligation to remind that “although parents are not explicitly mentioned in article 3, paragraph 1, the best interests of the child “will be their basic concern” (art. 18, para. 1)”. so on, it is necessary to understand that the actions whose are referred in art. 7.1 crpd could have been taken by any authority or institution and in any proceeding, formal or informal, where the best interests of the children with disabilities, as a group or attending an individual child with any type disability, can be affected. “the best interests of the child”. the phrase “the best interests of the child” is analysed in paragraphs 29 and 30 of the crc general comment no 9, and in paragraphs 30 to 35 of the crc general comment no 14. anyhow, in paragraphs 29 and 30 of the crc general comment no 9, it is little explained on what is the meaning of the best interests of the child, although it must be understood that the principle of the best interests of the child is applied to all children, with or without disabilities, without any discrimination. nevertheless, for a better understanding of the meaning of the concept best interests of the child we have to attend to the crc general comment no 14. 36 the complete text of article 3.1 crc is: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 127 ignacio campoy cervera from the contents of paragraphs 30 to 35 of the general comment no 14, it is clear that in all matters concerning a particular child or a particular group of children or children in general, it has to be clarified which is the best interests of the child / children in light of the specific circumstances of the particular child or the particular group and/or children in general; and then that best interests of the child /children shall be applied and taken into account to resolve any possible conflicts of rights. in this line, it is said that the concept of the best interests of the child is complex, flexible and adaptable, and must be determined on a case-by-case basis. however, it is still undetermined what we can understand by the concept best interests of the child. in this sense, for a full understanding of the concept, it is better to attend to paragraphs 6 and 4 of the general comment no 14. in the paragraph 6 “the committee underlines that the child's best interests is a threefold concept: (a) a substantive right (…) a fundamental, interpretative legal principle (…) a rule of procedure…”. anyway, in my opinion, the best way to understand what the best interests of the child means, in the necessary context of the human rights model, is understanding its core and aim; and, in this sense, as it is established in paragraph 4: “the concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the convention and the holistic development of the child”. understanding, as the committee explain in a foot note, that “the committee expects states to interpret development as a “holistic concept, embracing the child´s physical, mental, spiritual, moral, psychological and social development” (general comment no 5, para. 12)”37. “shall be a primary consideration”. the phrase “shall be a primary consideration” is analysed in paragraphs 36 to 40 of the crc general comment no 14. the principal idea of this paragraph is that it gives the pattern to resolve a conflict of interests when it involves a child/children interest. as paragraph 39 establishes, “…potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. the same must be done if the rights of other persons are in conflict with the child’s best interests. if harmonization is not possible, authorities and decision-makers will have to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child's interests have high priority and not just one of several considerations. therefore, a larger weight must be attached to what serves the child best”. anyway, two more ideas are important to understand the scope of the principle. the first idea is pointed out in paragraph 40, and it is that the best interests of the child has to be considered even before the conflict has raised, i.e. we have to take into account the principle when we have to take a decision that is going to affect a child or a group of children or children in general. 37 in this line, we have to consider that the best interests of the child, with or without disabilities, is the same than the best interests of any person: to achieve the free development of his/he own personality; therefore it is necessary that he/she could enjoy, full and effectively, all his/her human rights. it can be seen a developing and justification of those ideas in (campoy cervera, 2017b). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 128 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities the second idea is established in paragraph 38, and it is that in some decisions that affect children “the right of best interests is further strengthened; it is not simply to be “a primary consideration” but “the paramount consideration”. indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues”38. thus, we have to understand that it is the same for all children, with or without disabilities. iv.3. paragraph 3 as we pointed out above, the wording of the right of the child to be heard -art. 12 crcas well as the child's best interests -art. 3.1 crc was not clear. it is precisely the wording of article 12 that was even more distant from all that this general principle has represented, represents and will surely represent in relation to the construction of an adequate system of recognition and protection of rights of the children according to the human rights model39. anyhow, except for the last phrase of paragraph 3 and what it means the explicitly inclusion of children with disabilities, the paragraph reproduce in the essential the same wording of art. 12.1 crc40. it is true that the wording of the article seems to recognize only that the states parties shall ensure that children with disabilities have the right to express their views freely (and the necessity of given due weight to these views in accordance with their age and maturity) on an equal basis with other children. nevertheless, the fact is that it is accepted that what is recognized is the right to participate in all the matters that concern them41. in this line, it will be necessary, to understand the meaning of this principle and right, to follow what the committee on the rights of the child established in its general comment no 12 and also to attend to paragraphs 32 and 33 of the crc “general comment no 9 on the rights of children with disabilities”, which are dedicated to the principle and right of art. 12 crc, “respect for the views of the child”. “states parties shall ensure”. the committee on the rights of the child analysed the terms “shall assure” of art. 12.1 crc, in paragraph 19 of the crc general comment no 12; and this analysis can be used to understand the meaning of “states parties shall ensure” of art. 7.3 crpd. in this sense, the committee asserts firmly that this determine a strict obligation to the states to undertake appropriate measures “to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views”. 38 in fact, this paramount consideration is said, in paragraph 38, in respect of adoption, because art 21 of crc explicitly says: “the system of adoption shall ensure that the best interests of the child shall be the paramount consideration”. 39 as has been indicated in the introduction, this model means to recognize that children, with or without disabilities, have the capacity to exercise their rights not only on an equal basis with each other, but also on an equal basis with adults (campoy cervera, 2017b). 40 art. 7.3 crpd establishes: “states parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right”; and art. 12.1 crc: “states parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. 41 united nations committee on the rights of the child crc “general comment no 12 the right of the child to be heard” (1 july 2009) crc/c/gc/c12 (hereafter crc general comment nº 12), para. 3. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 129 ignacio campoy cervera “that children with disabilities have the right to express their views freely”. in paragraphs 22 to 25 of the crc general comment no 12 are analysed the terms “the right to express those views freely”. as it was said supra, the right to express their views freely has to be interpreted as the right to participate, and that means that is necessary to ensure that the participation of the child is expressing their own views, which we think that can be understood as their own will and preferences. in this line, it is highlighted that the participation (the expression of the views) has to be free and after getting the appropriate information. thus the committee on the rights of the child clarify in its general comment no 12 that “…“freely” means that the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard. “freely” also means that the child must not be manipulated or subjected to undue influence or pressure…”42; and also that “the realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian. the child must also be informed about the conditions under which she or he will be asked to express her or his views. this right to information is essential, because it is the precondition of the child’s clarified decisions”43. anyway, it is important to highlight that for the effective exercise of this right all the conditions that ensure that the child can participate freely has to be adapted to the conditions of the child, without or with disabilities. in this sense it is very interesting the paragraph 23 of the general comment no 12: “states parties must ensure conditions for expressing views that account for the child’s individual and social situation and an environment in which the child feels respected and secure when freely expressing her or his opinions”. which is necessary for all the children, but even more for the children with disabilities, due to the special barriers that they have to face in our societies. “on all matters affecting them”. in paragraphs 26 and 27 of the crc general comment no 12 are analysed the terms “in all matters affecting the child”. in these paragraphs it is said that “…while the committee supports a broad definition of “matters”, which also covers issues not explicitly mentioned in the convention, it recognizes the clause “affecting the child”, which was added in order to make clear that no general political mandate was intended…”. anyway, it is clear that the concept have to be understood in a very broad sense, to all matters that directly or indirectly affect children with disabilities as a group or in general, as well as if they have an effect on an individual child with any type of disability. that it is to say that here we have to reproduce what has been said supra in the analysed of the terms “in all actions concerning children with disabilities” in relation with the best interests of the child. with this extensive interpretation of the child's participation, without or with disability, it would be understood, on the one hand, that the child with disability must be able to participate in decision-making on all matters that affect him/her, directly or indirectly, in his/her personal, family, legal, political, economic, social or cultural life; and on the other hand, that children with 42 ibid, para. 22. 43 ibid, para. 25. paragaphs 37 and 38 of the crc general comment no 9 are also dedicated to their right to “access to appropriate information and mass media”. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 130 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities disabilities can be affected for all these matters individually and collectively, as groups of children and as children in general44. in this line, it is interesting the recall of the committee on the rights of the child on the damage that for children with disabilities have the practice of reducing their participation in the matters that affect them as children with disabilities: “…their participation in events and activities catering to these essential aspects of any child’s life is either totally lacking or minimal. furthermore, when their participation is invited, it is often limited to activities specifically designed for and targeted at children with disabilities. this practice only leads to further marginalization of children with disabilities and increases their feelings of isolation…”45. anyway, an enormous mistake is to misunderstanding what are the matters that affect the children with disabilities. in this sense, it is necessary to understand that they are affected for the same matters than the other children, because first of all they are children. “their views being given due weight in accordance with their age and maturity on an equal basis with other children”. in paragraphs 28 to 31 of the crc general comment no 12 are analysed the terms “being given due weight in accordance with the age and maturity of the child”. there are two main questions in relation with the meaning of the phrase that we analyse here and one very important consequence for the exercise of the rights of children with disabilities. the first question is: what does it mean “being given due weight”? the answer of the committee on the rights of the child is clear, the views, thus his/her will and preferences, have to be seriously considered to take the corresponding action, and then child (or children) has to be communicated about the way in which his/her views have influenced the outcome of the process46, and if they were rejected why were them. the second question is: when can we understand that the child has the capacity to express his/her views in order to consider them for the decision-making process? according with the committee, on the one hand, the “age alone cannot determine the significance of a child’s views”, therefore, “the views of the child have to be assessed on a case-by-case examination”47; and on the other hand, “maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child. maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner”48. anyway, the best understanding, according with the human rights model, is that every child has the right to participate, it does not matter his/her age or maturity. the 44 vid. crc general comment no 12, para. 87. 45 crc general comment no 9, para. 33. 46 vid. crc general comment no 12, para. 28. 47 ibid, par. 29. 48 ibid, para. 30. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 131 ignacio campoy cervera age and maturity are important only to determine the due weight that has been given to the will and preferences of the child49. thus, the very important consequence for the exercise of the rights of children with disabilities, is that in the exercise of this important right (that is the right to participate in all matters affecting them), the only two criteria that can be taken in account to assess the given due weight to the views of the child are his/her age and his/her maturity. so it can never be the disability, any type of disability. it is important to stress the essentiality that the children with disabilities participate on all matters affecting them, being given due weight to their wills and preferences in accordance with their age and maturity. here the end of the analysed sentence, “on an equal basis with other children”, has all the importance, because it determines explicitly the application of the social model of disability for the rights of children with disabilities. of course, this phrase is in the wording of the principle-right to participate in all the matters that affect to children with disabilities, but on one hand, as we explained supra, this is one of the four main principles of the whole convention on the rights of the child, and on the other hand this is one of the two (with the bests interests of the child) principles-rights that are highlighted in the only article that the convention of the rights of persons with disabilities dedicates to children with disabilities. thus, and according with the analysis done supra in relation with paragraph 1 of art. 7, we have to conclude that the states have to ensure that children with disabilities can exercise this right to participate, as any other right, on equal basis with other children50. in the same line, the world blind union, in the daily summary of discussion at the sixth session, 2 august 2005, explained: “the importance of allowing children with disabilities to develop their own skills and potential by allowing them to make their own mistakes. everyone learns from making mistakes and finds their limitations. often, children with disabilities are over protected not just by their parents but also by society. this denies children with disabilities the right to speak for themselves. parents and teachers are not educated to give children with disabilities the opportunities to make these mistakes, to correct themselves and to make decisions. the only way to change 49 in this sense, it was an unfortunate expression of the committee when it said: “the views of the child have to be seriously considered when the child is capable of forming her or his own views”. as it is better said in the united nations committee on the rights of the child, “general comment no 7 implementing child rights in early childhood” (20 september 2006) crc/c/gc/7/rev.1, (hereafter crc general comment no 7), para 14, “the committee wishes to emphasize that article 12 applies both to younger and to older children. as holders of rights, even the youngest children are entitled to express their views, which should be “given due weight in accordance with the age and maturity of the child” (art. 12.1)”. furthermore, in the crc general comment no 12 it is also said: “the impact of the matter on the child must also be taken into consideration. the greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child” (para. 30). 50 the importance of participation for children with disabilities was highlighted by the committee on the rights of the child: “it is essential that children with disabilities be heard in all procedures affecting them and that their views be respected in accordance with their evolving capacities. in order for this principle to be respected, children should be represented in various bodies such as parliament, committees and other forums where they may voice views and participate in the making of decisions that affect them as children in general and as children with disabilities specifically. engaging children in such a process not only ensures that the policies are targeted to their needs and desires, but also functions as a valuable tool for inclusion since it ensures that the decision-making process is a participatory one. children should be provided with whatever mode of communication they need to facilitate expressing their views. furthermore, states parties should support the training for families and professionals on promoting and respecting the evolving capacities of children to take increasing responsibilities for decision-making in their own lives” (crc general comment no 9, para. 32). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 132 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities attitudes towards children with disabilities is to recognize their own capacity. their selfdetermination should be honoured in accordance with age and maturity. disabled children must be allowed to make their own lives through their own experiences. this can only be achieved through a strong reference to disabled children that does not regard them as a homogenous group”51. “to be provided with disability and age-appropriate assistance to realize that right”. this phrase clearly set out what is necessary to ensure that the children with disabilities can exercise their right to participate (in fact, all their rights): receive the appropriate assistance to realize the right. it is referred to age-appropriate assistance as well, and this has sense, because as the committee on the rights of the child points out: “respect for the young child’s agency as a participant in family, community and society is frequently overlooked, or rejected as inappropriate on the grounds of age and immaturity”52. thus, it is important to reverse that situation and give the support for the children of all ages and of any type of disability in order to exercise their right to participate in accordance with their evolving capacities53. finally, as it was explained supra in relation with art 7.1, the key to fulfil the obligation that children with disabilities can exercise all their rights on an equal basis with other children, is the need to remove existing barriers and ensure universal accessibility for children with disabilities. thus it has to be applied the universal design and the accessible measures, given the necessary support and, where appropriate, the reasonable adjustments for the exercise of their rights. it is in that line that we have to understand the obligation to provide the appropriate assistance to make their rights real. anyway, the use of the term “assistance” allows to incorporate the necessity of providing the important figure of the personal assistant; his/her activity can be necessary to the exercise of very different rights and freedoms in order to ensure that children with disabilities can exercise them on equal basis with others. v. the inter-relationship between article 7 and other crpd articles from what we have already analysed, article 7 crpd establishes the principles to set out that all the children, with or without disabilities, have the same human rights and fundamental freedoms, and the states have the obligation to adopt all the measures that will be necessary to ensure that children with disabilities can effectively fully enjoy them on equal basis with other children. thus, we can understand that all the articles of the crpd are related with article 7 in some way, because all of them are related with children with disabilities54. furthermore, in the crpd preamble it is said that 51 un convention on the human rights of people with disabilities. ad hoc committee daily summaries. daily summary of discussion at the sixth session. volume 7, #2, august 02, 2005, http://www.un.org/esa/socdev/enable/rights/ahc6sum2aug.htm. 52 crc general comment no 7, para. 14. 53 in this line, in relation with the necessity to apply article 12 crc to younger children, the committee on the rights of the children, asserted: “…young children are holders of all the rights enshrined in the convention. they are entitled to special protection measures and, in accordance with their evolving capacities, the progressive exercise of their rights…” (crc general comment no 7, para. 3). 54 in this line, and in relation with the right to participate of article 7.3, although we can point out some rights that are more closely linked to the exercise of the right to participate, as the freedom of expression the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 133 http://www.un.org/esa/socdev/enable/rights/ahc6sum2aug.htm ignacio campoy cervera “recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by states parties to the convention on the rights of the child”. and in the convention on the rights of the child we can find human rights of all the generations: individual, civil, political, economic, social and cultural rights, that we can find in different articles of crpd as well. moreover, it is important to recall that the committee on the rights of the child affirmed, in paragraph 4 of its general comment no 14, that “the concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the convention and the holistic development of the child”. anyhow, it is also clear that there are some articles of the crpd that are specially related with article 7, because the content of them have special importance for children’s rights. some of them attend to general principles that, in accordance with have been explained before, are necessary for the appropriate exercise of the rights of children with disabilities, for example the right to equality and non-discrimination of article 5 or the right to accessibility of article 9. on the other hand, other articles regulate matters affecting directly to children with disabilities, although in its wording there is not mention to them, for example the access to justice of article 13, the freedom from exploitation, violence and abuse of article 16, or the freedom of expression and opinion, and access to information of article 21. anyhow, there are other articles of the convention in which there are explicit mentions to children. those could be separate in three groups, those who attend to children rights in a global way, those who attend to rights that have special meaning to children with disabilities and those who stress the necessity to adopt appropriate measures to ensure specific rights to children with disabilities. thus, we can located among the first ones articles 3, 4 and 6; among the second category articles 18, 23 and 24; and among the later articles 8, 25, 28 and 30. thus, article 3 h) establishes as one of the principles of the convention “respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities”. article 4.3, fixes, as one of the general obligations of the states parties, that “in the development and implementation of legislation and policies to implement the present convention, and in other decision-making processes concerning issues relating to persons with disabilities, states parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations”. moreover, in article 6, in spite of its title “women with disabilities”, is taken into account the multiple discrimination suffered by women and girls with disabilities. and opinion, and access to information of article 21 (as the committee on the rights of the child affirms, in relation with the articles of the crc: “article 13, on the right to freedom of expression, and article 17, on access to information, are crucial prerequisites for the effective exercise of the right to be heard”. (crc general comment no 12, para. 80); we can also point out the general connection of this article 7.3 with all the rights of children with disabilities, because, as it has been said in the previous section, we have to understand that precisely this right is recognized to children with disabilities to participate on all matters affecting them, i.e. to all the matters that are regulated in crpd. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 134 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities on the other hand, article 18.2 recognizes that “children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents”. article 23.1.c) establishes the obligation of the sates parties to ensure that children with disabilities “retain their fertility on an equal basis with others”; and in the points 2, 3, 4 and 5 establishes several measures that the states parties have to take in order to eliminate any discrimination against children with disabilities in all matters relating to parenthood, family life and relationships between its members, enjoying their rights on an equal basis with others. and article 24 recognizes the right to inclusive education55, which is the right of all children, with or without disabilities, to be educated in the same inclusive general education system without discrimination and on the basis of equal opportunities. finally, article 8.2.b) establishes as one of the measures that states parties have to adopt immediately, in an effective and appropriate way to raise awareness throughout society, “fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities”. article 25 b) fixes that the states, in relation with the right to health, “provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons”. article 28.2.b) points out that in order to safeguard and promote the realization of the right to social protection, the states parties shall particularly ensure access by girls with disabilities “to social protection programmes and poverty reduction programmes”. and article 30.5.d) establishes that states parties shall take appropriate measures “to ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system”. vi. the interpretation of article 7 in the european court of human rights in europe, although the two principles of article 7 are decisive in the construction of the system of the children’s rights, the references in the regional courts has been clearly much larger to the principle of the best interests of the child than to the principle of participation on all matters affecting them, most probably due to the fact of the prevalence of the “renew” protectionism model. anyway, the references to them, even when it has been involved a right of children with disabilities, use to be in relation with article 3.1 of crc rather than to article 7 crpd. nevertheless, there is an important exception in the case of guberina v. croatia, [2016], where, among other articles of crpd, is explicitly referred article 7 (although it is omitted its third paragraph)56, whereas it is not crc. “this case concerned the complaint by the father of a severely handicapped child about the tax authorities’ failure to take account of the needs of his child when determining his eligibility for tax 55 vid united nations committee on the rights of persons with disabilities, “general comment no. 4 article 24: right to inclusive education” (2 september 2016), crpd/c/gc/4. 56 guberina v. croatia, [2016], par. 34. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 135 ignacio campoy cervera exemption on the purchase of property adapted to his child’s needs”57. the case was decided by the court on article 14 of the european convention on human rights, taken in conjunction with article 1 of protocol no 1. the court “finds that the alleged discriminatory treatment of the applicant on account of the disability of his child, with whom he has close personal links and for whom he provides care, is a form of disability-based discrimination covered by article 14 of the convention”58. however, although it can be seen a reference to article 7.2 in paragraph 73 of the judgment, the specific content of article 7 crpd had not an important role in it. anyhow, perhaps the most interesting cases are those where it was involved a right of a child with disabilities and the european court has referred to the crpd to protect this right and it has been claimed as well the principle of the best interests of the child, although it has not been referred to article 7 crpd. it is the case of r.p. and others v. the united kingdom [2012] and kacper nowakowski v. poland [2017]. in r.p. and others v. the united kingdom [2012] the european court decided on the legitimation of the appointment of official solicitor to represent a mother with learning disabilities in a child care proceeding, in relation to the ability of the mother to provide the necessary care to her child, who was a premature baby and had a number of serious medical conditions requiring constant care. the court decided the case on article 6.1 of the european convention on human rights, right to a fair trial in civil proceedings. however, the court referred to the convention on the rights of persons with disabilities, in particular articles 1, 5, 12, 13 and 2359. although it was not named article 7, article 23, as we said above, is directly linked with article 7. in this case, the link is because article 23.2 and 4 establishes that the best interests of the child shall be of the most importance in order to decide with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions; and also that the separation of the child from his or her parents against their will can only be done if it is necessary for the best interests of the child. thus, although in this case were directly involved other articles of the convention, it is important to note that the paramount importance of the child bests interests does that this principle always has a decisive influence when the decision affects a child. in this line, the european court asserted “…however, the court accepts that the best interests of k.p. [k.p. was the child who was born prematurely] were the touchstone by which the domestic courts would assess the case. thus, in determining whether a case was arguable or not, it was necessary for the official solicitor to consider what was in k.p.’s best interests…”60. in kacper nowakowski v. poland [2017] the european court decided on maintaining the contacts of a deaf and mute father with his son, who also had a hearing impairment. the court decided the case on article 8 of the european convention on human rights, right to respect for private and family life. however, the court referred to the convention on the rights of persons with disabilities, in particular articles 5 and 57 european court of human rights, press unit, factsheet persons with disabilities and the european convention on human rights, march 2017, p. 24. 58 guberina v. croatia, [2016], par. 79. 59 r.p. and others v. the united kingdom [2012], para 43. 60 r.p. and others v. the united kingdom [2012], para 75. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 136 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities 2361. in this case, the direct link is with article 23.2 when it says: “states parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities”62. anyway, what is more important here is to observe that, in spite of in the judgment it is not referred article 7 crpd, the court explicitly invoked the decisive importance of the principle of the best interests of the child, although through articles 3.1 and 9 crc (and even though the best interests is also referred in article 23 crpd)63. on the other hand, it is also interesting to note that in other cases where a right of a child with disabilities has been affected, the european court has taken the best interests of the child as a principle of primary consideration as well, although it was no reference to article 7 crpd. in this line, in blokhin v. russia [2016]64, although the mental disability advocacy center referred (among the third party observations) to the convention on the rights of the persons with disabilities65 and “reiterated that the best interests of the child had to be of primary importance”66, the article referred by the european court in relation with this principle was article 3 crc and not article 7.2 crpd67. furthermore, the principle of the best interests of the child has been taken into account in other cases where the children’s rights where affected although it has not been referred neither the crc nor the crpd as, for example, a.m.m. v. romania [2012]68. the last consideration that have to be pointed out is that there are cases related with the rights of children with disabilities in which have not referred neither of the two principles (nor the best interests of child nor the participation on all matters that affect 61 kacper nowakowski v. poland [2017], par. 49. 62 kacper nowakowski v. poland [2017], par. 93. 63 kacper nowakowski v. poland [2017], pars. 50 and 81. in this line, it is interesting the recall of the court in paragraph 75: “the court recalls that there is currently a broad consensus including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see neulinger and shuruk [gc], no. 41615/07, § 135, 6 july 2010, and x v. latvia [gc], no. 27853/09, § 96, echr 2013). the child’s best interests may, depending on their nature and seriousness, override those of the parents (see sahin, cited above, § 66). the parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (see neulinger and shuruk, cited above, § 134). child interests dictate that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. it follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see gnahoré v. france, no. 40031/98, § 59, echr 2000 ix)”. 64 european court of human rights, press unit, factsheet persons with disabilities and the european convention on human rights, march 2017, 13. this case “concerned the detention for 30 days of a 12year old boy, who was suffering from a mental and neurobehavioural disorder, in a temporary detention centre for juvenile offenders”. 65 blokhin v. russia [2016], para 134. 66 blokhin v. russia [2016], para 191. 67 blokhin v. russia [2016], paras 81 and 134. 68 “the case concerned paternity proceedings brought by the mother of a minor with disabilities, who was herself severely disabled. the domestic courts did not strike a fair balance between the child’s right to have his interests safeguarded in the proceedings and the right of his putative father not to undergo a paternity test or take part in the proceedings” (european court of human rights, press released, issued by the registrar of the court, echr 057 (2012), romanian courts did not respect the right to respect for private and family life in paternity proceedings concerning a minor, february 2012, 1). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 137 ignacio campoy cervera them), even when the convention on the rights of persons with disabilities has been referred, as, for example, the case of đorđević v. croatia [2012]69, finally, it is worthy to notice than, as it has been pointed out supra, we can hardly have any references to the principle of participation of children on all matters that affect them in cases where the right of a child with disabilities was involved, and in any case without reference to article 7 of crpd70. nevertheless, the committee on the rights of persons with disabilities has repeatedly highlighted the decisive importance of the principle and right to participate. in fact, in its comments to the reports of the states parties to the crpd, it had emphasized its concern “that children with disabilities are not able to systematically participate in decision-making that affects their lives and that they do not have the opportunity to express their opinion on matters pertaining to them directly”; and so urges the states parties “to adopt safeguards to protect the right of boys and girls with disabilities to be consulted on all matters that affect them, and to guarantee them effective assistance to realize that right, bearing in mind their disability and age”71. vii. concluding remarks article 7 crpd implies the application of the principles that support the current paradigm of children's rights, promoted by the crc, to children with disabilities, as required by the social model of disability. in this sense, there is an interconnection between article 7.1 crpd and article 2 crc, and the recognition of the general principle and right to non-discrimination, and specifically the prohibition of discrimination on the ground of disability, to ensure that the children with disabilities can enjoy their human rights on equal basis with other children; between article 7.2 crpd and article 3.1 crc, and the recognition of the general principle and right of the best interests of the child as a primary consideration; and between article 7.3 and article 12.1 crc, and the recognition of the general principle and right of the children to be heard on all matters affecting them. 69 “this case concerned the complaint by a mother and her mentally and physically disabled son that they had been harassed, both physically and verbally, for over four years by children living in their neighbourhood, and that the authorities had failed to protect them” (european court of human rights, press unit, factsheet persons with disabilities and the european convention on human rights, march 2017, 9). 70 the only case that we have found where is a slight reference to the right of the child to be heard (without reference to the crpd) was of saviny v. ukraine [2008], para. 59. and as broderick notes: “the jurisprudence of the ecthr on the issue of children’s participation in decision-making processes is not particularly instructive – the case law of the court in this area has been slow to develop, and the court has traditionally taken a paternalistic viewpoint on the issue of children’s evolving autonomy” (broderick, 2017, 209). 71 united nations committee on the rights of persons with disabilities, concluding observations on the initial report of the czech republic (2015), crpd/c/cze/co/1, paras. 15-16. it can be seen in the same line in concluding observations on the initial report of belgium (2014), crpd/c/bel/co/1, paras. 1516; concluding observations on the initial report of croatia (2015), crpd/c/hrv/co/1, paras. 11-12; concluding observations on the initial report of germany (2015), crpd/c/deu/co/1, paras. 17a)-18a); concluding observations of the committee on the rights of persons with disabilities spain (2011), crpd/c/esp/co/1, paras. 23-24 b); and concluding observations on the initial report of sweden (2014), crpd/c/swe/co/1, paras. 19-20. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 138 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities as it has been explained on the section of background and travaux préparatoires, there had been a debate, in the ad hoc committee on a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities, between those who considered appropriate to include a specific article on children with disabilities and those who consider better to include a general provision on children with disabilities on the general principles and obligations crpd and address the specific circumstances of children with disabilities in the regulation of particular rights. finally, the crpd has the article 7 on children with disabilities and there are other articles in the crpd that also regulate basic rights of children with disabilities, as, for example, the right to education on article 24. anyhow, both principles-rights have different grounds. the best interests has older roots and is grounded on the protection of the children, and the participation of children on all the matters that affect them was driven from the crc and is grounded on the recognition of their autonomy and evolving capacities to exercise their rights. up to date, the jurisprudence of the european court of human rights had been almost only focused on the best interests of the child principle; although the committee on the rights of persons with disabilities has repeatedly highlighted the decisive importance of the principle and right of the children to participate in the decisions-making on all matters that affect them. references alston, p. and gilmour-walsh, b. (1996). the best interests of the child: towards a synthesis of children's rights and cultural values. florence: unicef international child development centre. broderick, a. (2017). article 7 [children with disabilities]. in: v. della fina, r. cera and g. palmisano, ed., the united nations convention on the rights of persons with disabilities. switzerland: springer international publishing. campoy cervera, i. (2017a). ideas for the construction of a human rights model for children, with or without disabilities. in: c. o’mahony and g. quinn, ed., disability law and policy. an analysis of the un convention. ireland: clarus press, pp. 17-31. campoy cervera, i. (2017b). la construcción de un modelo de derechos humanos para los niños, con o sin discapacidad. derechos y libertades, (37), pp.131-165. campoy cervera, i. (2016). los niños y las niñas con discapacidad ante la modificación legislativa del sistema de protección a la infancia y a la adolescencia. in: c. martínez garcía, ed., tratado del menor. la protección jurídica a la infancia y la adolescencia. navarra: aranzadi, pp.743-765. campoy cervera, i. (2006). la fundamentación de los derechos de los niños. modelos de reconocimiento y protección. madrid: dykinson. cardona llorens, j. (2014). el interés superior del niño: balance y perspectivas del concepto en el 25º aniversario de la convención sobre los derechos del niño. revista española de desarrollo y cooperación, (nº extraordinario, otoño de 2014). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 139 ignacio campoy cervera de asís roig, r. (2013). sobre discapacidad y derechos. madrid: dykinson. detrick, s., ed., (1992). the united nations convention on the rights of the child. a guide to the “travaux préparatoires”, the netherlands: martinus nijhoff publishers. european court of human rights, press released, issued by the registrar of the court, echr 057 (2012), romanian courts did not respect the right to respect for private and family life in paternity proceedings concerning a minor, february 2012. european court of human rights, press unit, factsheet persons with disabilities and the european convention on human rights, march 2017, available at: http://www.echr.coe.int/documents/fs_disabled_eng.pdf. un.org. (2017). un enable promoting the rights of persons with disabilities ad hoc committee. [online] available at: http://www.un.org/esa/socdev/enable/rights/adhoccom.htm. united nations committees documents united nations committee on the rights of the child, “general comment no 7 implementing child rights in early childhood” (20 september 2006) crc/c/gc/7/rev.1. united nations committee on the rights of the child “general comment no 9 on the rights of children with disabilities” (27 february 2007) crc/c/gc/9. united nations committee on the rights of the child crc “general comment no 12 the right of the child to be heard” (1 july 2009) crc/c/gc/c12. united nations committee on the rights of the child “general comment no 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)” (29 may 2013) crc/c/gc/14 united nations committee on the rights of persons with disabilities “general comment no 2 article 9: acccesibility” (22 may 2014) crpd/c/gc/2. united nations committee on the rights of persons with disabilities “general comment no 3 on women and girls with disabilities” (25 november 2016) crpd/c/gc/3. united nations committee on the rights of persons with disabilities, “general comment no. 4 article 24: right to inclusive education” (2 september 2016), crpd/c/gc/4. united nations committee on the rights of persons with disabilities, concluding observations on the initial report of the czech republic (2015), crpd/c/cze/co/1. united nations committee on the rights of persons with disabilities, concluding observations on the initial report of belgium (2014), crpd/c/bel/co/1. united nations committee on the rights of persons with disabilities, concluding observations on the initial report of croatia (2015), crpd/c/hrv/co/1. the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 140 legal analysis of article 7 of the convention on the rights of persons with disabilities: children with disabilities united nations committee on the rights of persons with disabilities, concluding observations on the initial report of germany (2015), crpd/c/deu/co/1. united nations committee on the rights of persons with disabilities, concluding observations of the committee on the rights of persons with disabilities spain (2011), crpd/c/esp/co/1. united nations committee on the rights of persons with disabilities, concluding observations on the initial report of sweden (2014), crpd/c/swe/co/1. court cases at the european court of human rights a.m.m. v. romania [2012] app no 2151/10, 14 february 2012 (european court of human rights). blokhin v. russia [2016] app no 47152/06, 23 march 2016 (european court of human rights). đorđević v. croatia [2012] app no. 41526/10, 24 july 2012 (european court of human rights). guberina v. croatia [2016] app no 23682/13, 22 march 2016 (european court of human rights). kacper nowakowski v. poland [2017] app no 32407/13, 10 january 2017 (european court of human rights). r.p. and others v. the united kingdom [2012] app no 38245/08, 9 october 2012 (european court of human rights). saviny v. ukraine [2008] app no. 39948/06, 18 december 2008 (european court of human rights). the age of human rights journal, 9 (december 2017) pp. 116-141 issn: 2340-9592 doi: 10.17561/tahrj.n9.6 141 the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 85 reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches1 oscar pérez de la fuente2 abstract: in certain situations, religious minority members ask for an exception to general rules because they could be discriminatory for this collective. these exceptions are called reasonable accomodations and have been recognised in different legal systems, but always conditioned not to the presence of certain circumstances (costs, safety, third-party rights, etc.). in this article, the regulations and case law on reasonable accommodation in canada, united states and europe are analysed. keywords: cultural diversity; religious beliefs and practices; reasonable accommodation; undue hardship. summary: i. cultural diversity and accommodationist approach; ii. american approach to reasonable accommodation; iii. canadian approach to reasonable accommodation; iv. european approach to reasonable accommodation; iv.1. recognition of implicit reasonable accommodation; iv.2. religious days accommodations; iv.3. religious signs accommodations; iv.4. denying accommodation by the rights of others or public safety; v. conclusions. i. cultural diversity and accommodationist approach one approach to religious freedom is based on impartiality, state neutrality and formal equality. however, in certain cases, there are legal solutions from a different approach based on an accommodationist view that combines substantive equality with the intention to avoid indirect discrimination. anti-discriminatory law has adopted new elements as reasonable accommodation measures that apply specifically to the disabled or to people with certain religious beliefs or practices. reasonable accommodation originates from the united states and from canada. according to nussbaum, there were the liberal and accommodationist approaches to religious freedom. the liberal approach is based on john locke’s works and holds that protecting equal liberty of conscience requires just two things: a) laws that do not subject individuals to punishment for their religious beliefs; and b) laws that provide for equal treatment for all religions and do not discriminate between practices (nussbaum, 2012, 71). 1 this is a new version of the communication presented to working group “law and religion” in the xxviiith ivr philosophy of law world congress, lisbon 17-21 july 2017. this article is under the research project “diseño, accesibilidad y ajustes. el eje de los derechos de las personas con discapacidad” (der2016-75164-p), financed by the spanish ministery of economy and competitiveness. 2 lecturer in philosophy of law, instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain (oscar@der-pu.uc3m.es). reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 86 in the classical text letter concerning toleration, locke presented the principles of liberal toleration. these could be summarised as: a) no one should be obliged to have a religious faith (locke, 2002, 123); b) equality and non discrimination according to liberty of conscience and equal respect for every person (locke, 2002, 123).; c) separation between church and state (locke, 2002, 126); d) neutrality towards religions (locke, 20002, 128). the accommodationist approach is inspired by roger williams’ works. laws in a democracy are always made by majorities and will naturally embody majority ideas of convenience. even where such laws are not intentionally discriminatory, they may turn out to be very unfair to minorities. in cases relating to liberty of conscience, this tradition holds that a special exemption, called “accommodation”, should be given to the minority believer. nussbaum continued to affirm that “asking a person to pay a legal penalty for following conscience is like fining that person for having a minority religion -which of course is a grave offense against equal respect of conscience“(nussbaum, 2012, 74). according to foblets, under the classical conception of liberal democracy, the state treats all citizens equally and this is understood as it must be blind to cultural and religious identities. in certain cases, this blindness has had the paradoxical effect of excluding the person in question. in these situations, the technique of “reasonable accommodation” has been developed (foblets, 2013, 245). according to bossets and foblets, this entails appropriate measures to prevent superficially neutral rules or standards from being discriminatory in effect, because their application is detrimental to particular categories of person (bosset, foblets, 2009, 37). there are three main views on the moral relevance of cultural identity: egalitarian liberals -barry-, liberal culturalists -kymlickaand multiculturalists pareck(pérez de la fuente, 2005). these positions had analysed these exemptions based on religious and cultural grounds and they have some differences in their approach to them. in culture and equality, barry refered to slaughter regulations to accommodate the beliefs of jews and muslims and the argument that sikhs should be allowed to wear a turban instead of a helmet when on a motorbike. despite his broad liberal view, not especially sensitive to cultural diversity, in these two cases, he accepted a rule-andexemption approach for pragmatic reasons. he argued that “while the case for a universally applicable rule is strong, the particular circumstances make the balance-ofadvantage argument for an exemption rather powerful” (barry, 2001, 49). this ruleand-exemption approach must be limited to few cases because as barry said “they are anomalies to be tolerated because the cure would be worse than the disease. but they provide no support for any extension to new cases” (barry, 2001, 51). in the liberal culturalist view, it should be recognised some group rights according the differentiated citizenship to the cultural minorities members. according to kymlicka, one kind of this group rights are the polyethnic rights. he defined these oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 87 measures as “group-specific measures are intended to help ethnic groups and religious minorities express their cultural particularity and pride without it hampering their success in the economic and political institutions of the dominant society” (kymlicka, 1998, 31). in the multiculturalist approach, pareck states that in the context of cultural diversity, equal treatment could involve different or differential treatment and this is not necessarily akin to discrimination or privilege. in the sense, pareck explained that “as a general rule would seems that different treatments of individuals or groups are equal if they represent different ways of realizing the same right, opportunity or in whatever other respect they are intended to be treated equally, and if as a result none of the parties involved is better-off or worse-off” (pareck, 2000, 261). according to bossets, the concept of reasonable accommodation has been taken up in canadian anti-discrimination law as a vehicle for giving substance to the idea of equality through different treatment. the general idea has been famously expressed in a dictum by judge tanaka of the international court of justice: the principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal... to treat unequal matters differently according to their inequality is not only permitted but required3 (bossets, 2011, 13). the well-known principles of aristotelian justice are: a) equals must be equally treated and unequals must be unequally treated; b) equality and justice are synonymous. these principles are consistent with the accommodationist approach and sometimes a different treatment could be justified by equality and justice requirements. as comandé said: a principle of equality which refuses equal treatment at all costs and fosters differential treatment for different situations to fulfil its goal. to use a metaphor, the notion of reasonable accommodation is the offspring of both the notion of equality and the notion of discrimination (comandé, 2010,14). following this reasoning, alidadi and foblets coined 'deep diversity' and defined as “an open-ended engagement with the already-there factual heterogeneity in beliefs, practices and values on the ground in europe, which is not a priori limited by conceptions and categories motivated by more common or majoritarian values in society” (alidadi, foblets, 2012, 389). the idea behind this notion is irrelevant if you belong to a majoritarian or minoritorian group in society you should be capable to fully enjoy the rights. 3 south west africa (ethiopia v south africa; liberia v south africa) (second phase, judgment) [1966] icj rep 6, 305 (tanaka, j, dissent). reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 88 following bouchard, accommodations (or concerted adjustments) are not privileges, they are not designed solely for immigrants and they should not give free rein to values, beliefs, and practices that are contrary to the basic norms of society— they simply aim to allow all citizens to benefit from the same rights, no matter their cultural affiliation (bouchard, 2011,438). analysing the notion of reasonable accommodation, bossets distinguished a profane, a generic and a technical sense. the profane meaning of reasonable accommodation refers to any form of arrangement that leads to the management of conflict, which may be of a cultural, religious or any other nature. bosset explained that the accommodation then does not respond necessarily to a legal obligation (bossets, 2009, 6). these are the cases of what is called “concerted adjustments” in the bouchard taylor report terminology. these are “which is less formal and relies on negotiation and the search for a compromise. its objective is to find a solution that satisfies both parties” (bouchard, taylor, 2008, 51). these are informal solutions to multicultural conflicts, usually of modus vivendi kind and out-of-court. the second is the generic sense, more familiar to lawyers. bossets defined it as an “adaptation of a standard of law, particular in order to mitigate or eliminate the impact that this standard can have on a constitutional right or freedom protected”. examples of this generic sense are conscientious objection, "cultural defense” and constitutional exemption (bossets, 2009, 6-7). finally, the technical meaning of the duty to accommodate reasonably is expressed in the supreme court of canada case of simpson-sears, which focused specifically on the interpretation and application of anti-discrimination legislation in canada. the court, which recognised in this case the existence of "indirect" forms of discrimination, also enshrined a corresponding duty of reasonable accommodation, which it described as: "the obligation [...] is to take measures to reach agreement with the complainant, unless this is not causes undue hardship" (bossets, 2009, 7). in this technical sense, the duty of reasonable accommodation is understood as: a) corollary of the anti-discrimination rules; b) transversal concept; c) unintentional discrimination; d) apparently neutral; e) claim of an exemption; f) internal limits; g) external limits. a) it is the corollary of the right to non-discrimination. this means the uselessness to seek an explicit basis for this obligation in the text of the law (bosset, 2009, 8). in european law, there is only recognition for reasonable accommodation to people with disabilities, but the concept it is also applied to people with different religion or ethnic origin, for example romany. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 89 b) it is a "transversal" concept, likely to be applied to all prohibited grounds of discrimination (bosset, 2009, 8). f) it is unintentional discrimination. this means that it is not necessary to proof the intention to discriminate, but the effects to a collective’s members. g) it is apparently neutral, but adversely affects members of the minority. sometimes statistical evidence is used. this is similar to indirect discrimination. f) the measure consists of an accommodation or an exemption of the general rule. the minority claim to be treated differently as an exception due to its particular circumstances. h) internal limits: this exemption must be reasonable if it does not imply “undue hardship”. these limits could be, for example, cost and safety. elosegui included the costs of the accommodation, the obstacles in the company (effects to productivity or other employees, duration of the measure) and the rights of other employees (or other users) (risk to the health o safety of employees, of colleagues or the public, the collective agreement, conflicts of rights) (elosegui intxaso, 2013, 62-63). i) external limits: this exemption must not restrict third-party rights. elosegui included public order and security (the ecthr based on the european covenant affirmed the defense of public order, national security, public security and protection of morals), the democratic values (the ecthr affirmed social cohesion, democracy, democratic society) and welfare state and third-party rights (the ecthr affirmed the economic welfare of the country, the protection of rights and freedoms) (elosegi intxaso, 2013, 63-64). a way to define these reasonable accommodation measures comes from an inherent characteristic, such as a disability or religion, whereby someone is prevented from performing a particular function, task or job or from having access to services or spaces in the conventional ways (henrad, 2012, 62) (bribosia et. al., 2010, 138). sledzinska-simon extended this institution to the category of the persons with childcare obligations (sledzinska-simon, 2016, 216). reasonable accommodation involves measures that are conditional on a test of proportionality, the end result of which cannot result in a “disproportionate burden” – european terminologyor “undue hardship” –american and canadian terminology-. there are some reasons or circumstances –costs, the right of others, public order or security, etc.that justify not using reasonable accommodation in some cases. it should be noted that these specific reasons and how the courts strike a balance may vary between united states, canada and europe. this article analyses these states’ case law and approaches on reasonable accommodation. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 90 ii. american approach to reasonable accommodation in the first amendment of the american constitution, there are two clauses on religion freedom: free exercise and non-establishment clauses. they have different objectives, as dworkin said “government may not burden the exercise of religion, but also must not discriminate in favour of any religion” (dworkin, 2013, 129). these principles are usually understood as a version of the separation between church and state. following this principle, ruan explained that “the free exercise clause protects religious expression against governmental power, while the establishment clause bars government from adopting a religion itself” (ruan, 2008, 3). on the compatibility of the accommodationist approach and the establishment clause, mcconnell affirmed that: the hallmark of accommodation is that the individual or group decides for itself whether to engage in a religious practice, or what practice to engage in, on grounds independent of the governmental action. the government simply facilitates ("accommodates") the decision of the individual or group; it does not induce or direct, by means of either incentives or compulsion. the hallmark of establishment is that the government uses its authority and resources to support one religion over another, or religion over nonreligion (mcconnell, 1991, 688). sherbert v. verner was the first main case on reasonable accommodation in american case law. a seven-day adventist worker was dismissed because she did not want to work on saturdays, her holy day. she sought unemployment benefits because she was unable to find a job as she insisted she would not work on saturdays. the state commission rejected the claim. this case eventually arrived at the american supreme court, and later gave raise to the formation of the sherbert test, which is used as a guide for when a person’s religion and/or ideology is to be accommodated. the test is as follows: a)the worker cannot accept the employment because she cannot work on saturdays because of her religious beliefs. disqualification for unemployment compensation benefits creates an unconstitutional burden of the free exercise of her religion. b) there is no compelling state interest in the legislation that justifies this situation c) this decision does not foster the "establishment" of the seventh-day adventist religion in south carolina contrary to the first amendment. the sherbert test offered the option to allow an exemption for religious reasons for the claimant if there is no compelling state interest. the recognition of the claimant’s unemployment benefits didn’t mean to restrict others’ religious freedoms.4 the supreme court first had to clarify which situations are not included in the ruling. 4 sherbert v. verner, 374 u.s. 398 (1963). oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 91 people who are unemployed based on their religious beliefs have no constitutional right to unemployment benefits. the court held that under the constitution south carolina could not obligate a worker to abandon his religious beliefs regarding the sabbath. this decision confirmed the previous case of everson v. board of education5 of 1947. the faith, or the lack of it, is not justification to exclude an individual to receive benefits of the legislation.in the dissenting opinion, judges harlan and white affirmed that an exemption was made for religious beliefs in this case, this would go against the state’s neutrality imposed by the establishment clause (intxaurbe vitorica, 2015, 210). it was approved in 1964 the civil rights act that in the title vii prohibits discrimination in employment on the basis of race, sex, religion and national origin. in cases of alleged religious discrimination, [a] n employee establishes a prima facie case.., by showing that: (1) the employee has a bona fide religious belief that conflicts with an employment requirement; (2) the employee informed the employer of this belief; (3) the employee was disciplined for failing to comply with the conflicting employment requirement. interpreting this statute, rosenzweig explained that “once the employee establishes her prima facie case, the burden shifts to the employer to show either that it offered any ‘reasonable accommodation’-and not necessarily the employee's preferred accommodationor that any potential accommodation would cause the employer ‘undue hardship’” (rosenzweig, 1996, 2517). in the yoder case, the sherbert test is applied to the issue of the compulsory education in public schools for the amish teenagers from 16 to 18. the amish is a religious sect with a long history in america, with strong beliefs that are reflected in their way of life. they want to educate the amish teenagers in their communities. the amish have showed their education system and applying the shebert test the state had to demonstrate a strong interest against this exemption of the compulsory public education in favour of the amish education. case wisconsin v. yoder6. the concept of indirect discrimination was first established in griggs in 1971 where a test adversely affected all black candidates for a job7. the law says that if it is possible to discriminate against someone because of their race throw artificial, unnecessary and arbitrary barriers, even unintentional, this behaviour must be prohibited. the court held that what congress had commanded was that any tests used must measure the person for the job, and not the person in the abstract. the duke power company only employed black people in the labour department of its dan river plant (north carolina), but not in the other four operating 5 everson v. board of education, 330 u.s. 1 (1947) 6 wisconsin v. yoder 406 u.s. 205 (1972). 7 griggs v. duke power 401 u.s. 424 (1971). reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 92 departments where the lowest salaries were higher. in 1965, the prohibition against black people was lifted and could be promoted to other higher positions. however, to be eligible for this promotion, the company created two requirements: to have completed secondary education and successfully to have passed two aptitude tests. both requirements in practice involved the elimination of a disproportionately larger number of black than white candidates (intxaurbe vitorica, 2015, 213). in the judgment established that not only was prohibited direct discrimination but also those practices that were formally scrupulous but discriminatory in their effects. in this case, it was first established the notion of adverse effect discrimination, which begins with the need for the plaintiff to show that an apparently neutral rule generated adverse effects in a group based on one of the prohibited causes of discrimination. it continued with the burden of proof that felt on the defendant to demonstrate that this measure was clearly related to the job and was necessary to achieve a nondiscriminatory objective. in some states there is legislation that permits a religious use of peyote. if something is permitted in some states or it is desirable, it is not constitutionally required. these decisions could come from the democratic process or the judicial process. in this case, the court decided the prohibition of the use of peyote in oregon was constitutional and the claimants had no right to unemployment compensation. case employment division, department of human resources of oregon v. smith8. in response to the national uproar generated by smith case, congress enacted religious freedom restoration act and restored the compelling-interest test to neutral laws of general applicability. according rosenzweig, rfra represented a triumph of accommodationism, an interpretation of the religion clauses that requires, or at least encourages, the government to accommodate individuals' religious beliefs and exercise (rosenzweig, 1996, 2525). the wording of this religious freedom restoration acts was the following: (a) ...government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection of this section. (b) ... government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest (rosenzweig, 1996, 2525). analyzing smith case and the rfra, dworkin affirmed that the court was right as a matter of political morality and congress wrong. to justify this, the author used the floodgates argument stating that if an exception was made for one drug based on religious grounds then it could pave the way for the argument that the entire drug 8 case employment division, department of human resources of oregon v. smith 494 u.s. 872 (1990). oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 93 control regime was a religious establishment. in his work religion without god, dworkin defends the general idea of ethical independence instead of the special notion of religious freedom. in both cases, the rationale for restricting freedom or independence should be highly justified (dworkin, 2013, 133). commenting on the smith case, sakaria affirmed this accommodation was not compulsory under the free exercise clause, but could be permissible under the establishment clause (sakaria, 2002, 484). she proposed an endorsement test to determine when legislative accommodations breach the establishment clause. the endorsement test is focused on “whether a legislative accommodation symbolically endorses a particular religion by sending a message to those not accommodated that their religion is disfavoured” (sakaria, 2002, 488). with regards to rfra, rosenzweig stated that this rule established that any law, from the congress or the states, must not impede the free exercise of religion (rosenzweig, 1996, 2535). in the case of hardison, it was decided that giving saturdays off for religious reasons is an undue hardship if it involves more than de minimis cost. the court held if there were some costs to accommodate the day off of a worker with religious beliefs, and there were no costs to accommodate the day off of a worker without religious beliefs, then this is discrimination. trans world airlines v. hardison9. in applying this standard, rollins wrote that the court that decided the hardison case had held that the employer had no obligation to accommodate the employee’s request when doing so would require the payment of overtime for a voluntary replacement. in other words, the cost for the payment of overtime was more than de minimis. the court went further in holding that when a bona fide seniority system existed, the employer was not obligated to make an exception to help the employee meet his religious obligations (rollins, 2007, 4). in the case of philbrook, which followed the hardison decision, the court confirmed the possibility of taking unpaid leave to accommodate the sabbath if there is more cost than established in the collective agreement. doing this, it is possible to observe religious practices but, on the other hand, not at all costs. case ansonia board of education v. philbrook10. unpaid leave could be a good solution unless it is used only for cases of religious reasons but not the rest. if the normal solution is paid leave except for religious cases, it is discriminatory and against reasonableness11. in the case of caldor, it was considered the constitutionality of a statute that gives an absolute right to the sabbath entitled observers not to work on their holy day. this absolute right takes priority over the employer’s and the other employees’ rights and decisions. in the end, the supreme court held that this statute went against the 9 trans world airlines, inc. v. hardinson 432 u.s. 63 (1977). 10 ansonia board of education v. philbrook, 479 u.s. 60 (1986). 11 idem. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 94 establishment clause of the first amendment of the american constitution. case estate of thornton v. caldor inc.12. the american supreme court held there is no obligation to accommodate if it is more than de minimis cost, either in terms of financial cost or in terms administrative inconvenience. the idea of spiritual hardship is emphatically rejected by the court of appeal (gibson, 2012, 135-136). in cases of religious dress code, non-economic hardship given the employer’s commitment – without exception – to values such as religious neutrality. under an “undue burden” standard, ruan affirmed that limits on religious expression would be lawful only if such limitations were not a direct legal obstacle to expressing one‘s religion, or put another way, if the limitations on religious expression had a purpose or “effect of placing a substantial obstacle in the path”. accordingly, laws or employer policies and practices that were a substantial obstacle to religious expression in the workplace would be struck down (ruan, 2008, 26). in the american context, the economic aspect of the reasonable accommodation is very important to consider the “undue hardship”. the equal employment opportunity commission (eeoc) defined undue hardship when the accommodation ‘is costly, compromises workplace safety, decreases workplace efficiency, infringes the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work’. this is usually understood as the level of “undue hardship” above which employers are not obligated to provide accommodation has been set at the level of a de minimis (gibson, 2012, 133-134). there are new cases on reasonable accommodations established by the american supreme court according to berg. for instance, the native american student who got the right to wear his hair long in a.a. v. needville indep. school dist.13, the santeria folks who got to continue their religious rituals sacrificing animals in merced v. kasson14 and the jehovah’s witness who got a bloodless liver transplant that was necessary to keep her alive in stinemetz v. khpa15 (berg, 2015, 112). iii. canadian approach to reasonable accommodation in canada, the application of the “undue hardship” should be done on a case-bycase basis using a test of proportionality. there is a broad principle of application according to “the employers must demonstrate that they have made every effort to accommodate an employee and that it would be impossible to modify or eliminate a particular requirement without undue hardship” (gibson, 2012, 107). the canadian terms on reasonable accommodation are different from the united states context because some views consider that, in canada, the employer has a duty to accommodate 12 estate of thornton v. caldor inc. 472 u.s. 703 (1985). 13 a.a. v. needville indep. scool dist. 611 248, 272-73 5th cir. 2010 14 merced v. kasson 577, 578, 595, 5th cir 2009. 15 stinemetz v. khpa, 252, 141, 161 kan. ct. app. 2011. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 95 unless there is undue hardship. it is important the justification of bona fide occupational qualification (bfoq) that could be used as an excuse not to permit individual accommodations by religious convictions in the workplace. the first canadian precedent was simpson-sears case. a worker became member of the seven day adventist church and claimed to observe strictly the sabbath from sundown friday to sundown saturday. she could no longer embrace her new faith whilst continuing to work for her employer on saturdays. case ontario human rights commission, theresa o’malley. v. simpsons-sears16. employment rules that are equal applicable to everybody could be discriminatory if affects some people differently. it is the result or effect, not the intention, what is relevant in human rights legislation. the main approach of the ontario human rights code does not focus on the discriminator, rather on the victim of discrimination. in cases of indirect discrimination, the employer has the duty to accommodate unless there is undue hardship. if the issue complained of forms an integral part of the job, the court held that logic dictates this cannot be discrimination. if no reasonable compromise can be reached, the complainant must choose between his religion or his employment. first the employee had to show there was discrimination. second, the employer had to prove it had attempted to accommodate the employee. case alberta human rights commission v. central alberta dairy pool17. according to de campos, the canadian court established six factors to be considered when determining “undue hardship” in the workplace: a) financial costs; b) impact on collective bargaining agreements; c) problems of employee morale; d) interchangeability of workforce and facilities; e) size of the employer; f) safety. in real situations, an analysis is made of the weight to be conferred to each of these factors (de campos velho martel, 2011, 95). the supreme court of canada emphatically refused to adopt the u.s. constitutional standards of interpreting “undue hardship” based on the de minimis test for two reasons: “(a) the de minimis test is not compatible with the concept of undue hardship formulated by the court; (b) the legal term is not hardship alone, but hardship qualified as undue. the de minimis test, however, leads to the recognition of only the hardship and there will always be some hardship; it is the cost of protecting the fundamental rights and shaping an inclusive society” (de campos velho martel, 2011, 96). the bona fide occupational qualification (bfoq) defence favours a general application of a rule without taking into account individual exceptions. if the employer cannot explain why the individual accommodation is not possible without undue 16 ontario human rights commission, theresa o’malley. v. simpsons-sears 81985) 2 s.c.r. 536. 17 alberta human rights commission v. central alberta dairy pool (1990) 2 s.c.r. 489. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 96 hardship, the bfoq is not established. if a company has many employees of different religions, the employer could adopt a generic policy respect religious diversity. such a policy could be an alternative to individual accommodation. if the employer has no such policy and has not shown undue hardship, he must respond to the complaint. then he could raise the bfoq defence. according to hatfield, the meiorin case facts were a forest fire fighter failed the three new tests introduced by the government and she was dismissed. an arbitrator found that this was a case of sex discrimination. the court developed the three-step meiorin test to determine if the employer has established a standard that is a bona fide occupational requirement. the employer must: 1. demonstrate the standard was adopted for a purpose rationally connected to the performance of the job; 2. honestly believe the standard is necessary to fulfil the legitimate, workrelated purpose; and 3. show the standard is reasonably necessary to the accomplishment of the legitimate, work-related purpose, so must demonstrate it is impossible to accommodate workers without undue hardship to the employer (hatfiled, 2005, 24). one application of the bfoq principle is the case of bhinder in relation to sikh turbans in the workplace. the canadian railway company introduced a rule that all employees must wear a hard hat at a particular worksite. bhinder, a sikh employee, refused to comply because his religion did not allow the wearing of headgear other than the turban. the canadian supreme court decided there was no duty to accommodate since it was declared no discriminatory practice here because bona fide occupational requirement existed. case k.s. bhinder, canadian human rights commission v. canadian railway company18. in canada, a so-called 'reasonable accommodation crisis' took place and bossets explained that the concept was suddenly propelled into the heart of a heated debate on quebec's sense of identity (bossets, 2011, 16). according to this author, in fact this highlighted that there was a conflict between reasonable accommodation and the values of quebec society. the official remit listed the following values as counterweights to reasonable accommodation: equality between the sexes; separation between church and state; the primacy of the french language; the protection of human rights and freedoms; justice and the rule of law; the protection of minority rights, and the rejection of racism and discrimination (bosset, 2011, 17). on this canadian reasonable accommodation debate, banting and kymlicka commented that: 18 k.s. bhinder, canadian human rights commission v. canadian railway company (1985) 2 s.c.r. 561. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 97 some commentators have pointed to quebec’s recent ‘reasonable accommodation’ debate as evidence of growing polarization. stirred up by media reports of ‘excessive’ accommodations of minorities, newspapers and radio shows in quebec were dominated for a period of time by calls for a new, tougher approach to immigrants, and surveys showed widespread support in quebec for this idea. for the first time in many years in canada, a major political party (the action democratique du quebec) ran on an anti-immigrant and anti-multiculturalism platform, and this proved to be a successful tactic, increasing their share of the vote and of seats. to avoid further loss of electoral support, both the quebec liberals and parti québécois engaged in ‘get tough’ rhetoric, denouncing ‘excessive’ multiculturalism. for some commentators, this is the first crack in the wall, the first real sign of a european-style retreat from multiculturalism, and a harbinger of what is likely to happen in the rest of canada (banting, kymlicka, 2010, 48). as an answer and analysis of the consequences of this debate, the professors bouchard and taylor wrote in 2008 the report called building the future. a time for reconciliation. abridged report. they explained that there are two conceptions not of the right to equality, but the procedures for its application, i.e. a) a formal, doctrinal, very rigid conception, or b) a modulated, flexible conception that is more inclusive because it is more attentive to the diversity of situations and individuals (bouchard, taylor, 2008, 25). in the bouchard taylor report, the conditions for undue hardship in cases of reasonable accommodation in medical contexts are explained: 1. a request for the personalisation of care must not run counter to clinical judgement, best practices and the professional code of ethics and must be evaluated in light of clinical urgency. 2. a request for personalisation must not run counter to safety rules, e.g. the prevention of infection, risk management, etc. 3. a request for personalisation must not engender undue costs or costs that exceed organisational limits from a human, physical and financial standpoint. 4. a request for personalisation must not be harmful to the rights and freedoms of other users and interveners (bouchard, taylor, 2008, 52-53). the canadian approach on reasonable accommodation has a judicial specification of the cases of undue hardship and these can vary form case to case. in this context, it is important the employer’s justification of the bona fide occupational qualification (bfoq) that is sometimes opposed to individual accommodations. bossets affirmed as the flip side of reasonable accommodation, the notion of undue hardship calls for a balance between the right to accommodation and the interests of others concerned. canadian courts apply three types of test to determine whether an accommodation entails undue hardship: financial costs, impact on the organisation's functioning, and infringement of other rights. third-party attitudes that are inconsistent with human rights are irrelevant (bosset, 2011, 15). reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 98 on march 24 2010, the bill 94 was passed in the national assembly. the bill was called an act to establish guidelines governing accommodation requests within the administration and certain institutions (government of quebec 2010) (conway, 2012, 195). the bill’s text was short, containing only 10 clauses. the first clause defined “accommodation” as an “adaptation of a norm or general practice, dictated by the right to equality, in order to grant different treatment to a person who would otherwise be adversely affected by the application of that norm or practice,” while the following clauses defined which representatives of the government were affected (clauses 2 and 3). clause 5 defined “reasonable” as “not impos[ing] on the department, body or institution [from which an accommodation is requested] any undue hardship with regard to, among other considerations, related costs or the impact on the proper operation of the department, body or institution or on the rights of others” (conway, 2010, 200). analyzing this rule, conway affirmed that clause 4 was controversial because of the apparent hierarchy of rights it established (equality of rights taking precedence over religious rights). the bill 94 established that an accommodation must comply with the charter of human rights and freedoms, in particular as concerns to gender equality and the principle of religious neutrality of the state. apart from this, conway also pointed out that clause 6 was controversial because of the way it appeared to target muslim women. in the clause, it is established that if an accommodation involves an adaptation of that practice and reasons of security, communication or identification warrant it, the accommodation must be denied (conway, 2010, 201). iv. european approach to reasonable accommodation the european approach to reasonable accommodation for religious reasons and practices is an implicit framework, because actually this kind of measures is only explicitly established for cases of disability. however, there are several cases from the european court of human rights and from the european union court of justice that have been decided with arguments linked with reasonable accommodations, but mostly the cases were rejected. art. 5 of the european union directive 2000/78 establishes a general framework for equal treatment in employment, explicitly establishes reasonable accommodation will be provided for people with disabilities: this means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. this burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the member state concerned. as an example of the european terminology of the proportionality test on reasonable accommodations, there is this example on a the full-face veil been worn in oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 99 public case: “this is only the case, however, if such policy or measure has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised” (sas v. france19). in european law, reasonable accommodation is the other side of indirect discrimination for religious minorities. this implies that formal equality is not sufficient and the religious neutrality of laws and rules adversely impacts to the minority members. in these cases, if there is no “disproportionate burden”, the application of the substantial equality is recommended, treating different differently. this is the accomodationist approach that is always applied on a case-by-case basis using a test of proportionality case by case. according to alidadi, the concepts of reasonable accommodations and indirect discrimination may be seen as functional equivalents, but there are differences. on the one hand, indirect discrimination could be regarded as more encompassing and implying a much higher burden on employers. when a measure or situation is considered to disadvantage a certain group by its very design, it should be corrected so that it does not hurt potential and future employees. a simple accommodation for a current/individual employee would not seem to suffice. also, if there is talk of discrimination, economic cost arguments are unlikely to succeed under the justification test. in this sense, depending on the standard adopted for assessing reasonable accommodations, indirect discrimination could be considered a stronger tool for employees in some cases (alidadi, 2012, 707). the three models of equality are defined, following to de schutter, at the current stage of development of european anti-discrimination law: a first question concerns the aim of this body of law. in the implementation of the principle of equal treatment, do we seek to protect all individuals from being discriminated against, or do we seek to ensure an equal representation of the diverse social groups composing society in its different sectors, and to ensure a roughly equal distribution of all social goods among those groups? this alternative is sometimes presented as an alternative between formal (or de jure) equality and substantive (or de facto) equality (de schutter, 2006, 1). under a first model, discrimination is prohibited, but there is no obligation to ensure a proportionate representation of the diverse social groups whose members are protected from discrimination. nor is there an effort to monitor the situation of these groups with respect to the global allocation of social goods in order, if necessary, to take remedial action where imbalances are found to exist. such imbalances as such are not seen as problematic, as long as each individual has not been discriminated against in identifiable ways, by particular agents. 19 sas v france (2014) ecthr, 1 july, app. no. 43835/11. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 100 under a second model, the prohibition of discrimination extends to the prohibition of disparate impact discrimination: any measure which disproportionately and negatively impacts upon certain groups which are already underrepresented (or which already receive a less-than-proportionate share of the social good to be allocated), should be revised, unless it can be demonstrated that such measure, although presumptively suspect, aims to realize a legitimate objective by means which are both appropriate and necessary. under a third model, that of affirmative equality, the aim of ensuring equal treatment is not only to avoid instances of discrimination, but also to make progress towards a fair share of social goods among the different segments of the population. under this model, affirmative policies are pursued which seek to improve the representation of certain groups in the areas or at the levels where they are underrepresented, and to arrive not only at a situation where discriminatory rules, policies or practices are outlawed, but where, moreover, social goods are distributed more equitably between the diverse groups composing society. indeed, as clearly illustrated by the debate concerning the admissibility of affirmative action policies, still sometimes referred to as “reverse” or “positive” discrimination, the objective pursued under the model of affirmative equality may conflict with the objective of nondiscrimination: where the application of neutral rules or procedures does not fulfil the objective of ensuring a fair distribution of social goods among different groups of the population, it will be required to make further steps towards the full realization of equality; and this may imply treating differently individuals because of their membership in certain groups defined by “suspect” characteristics they present (de schutter, 2006, 4). during the last decade, the ecthr started to develop a substantive conception of equality. in contrast to formal equality, a substantive conception takes into account how victims experience the reality of discrimination. the central question is not whether the law makes distinctions, nor whether the state is motivated by prejudice, but whether the effect of the law is to perpetuate disadvantage, discrimination, exclusion, or oppression. a substantive equality doctrine responds to the effects of structural inequality where it is not possible to identify a specific “wrongdoer” who causes the discrimination (o’connell, 2009, 129). the strasbourg jurisprudence is reluctant to accept reasonable accommodations in the field of religious diversity as happens with linguistic diversity. ruiz vieytez explained that the court of strasbourg accepts a very broad conception of margin of national appreciation, sometimes accompanying certain evaluative prejudices of certain religious expressions, with a concept of strict secularism from the interpretation of countries like france or turkey (ruiz vieytez, 2009, 13). the ecthr has developed its own vocabulary and techniques to the reasonable accommodation cases. a first technique consists in the use of the proportionality test, which also applies to the social limits in the ecthr (legal) as to the functional limits in the limitation of a right of the particular. the criteria of the ecthr's jurisprudence are three: first, the state must demonstrate in the case of a norm in dispute that said measure pursues a legitimate good; second, that there is a relationship reasonable proportionality oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 101 between the means used and the purpose sought; and third, that there is no other measure that, achieving same purpose, damage to a lesser extent the individual right, that is, less burdensome for the individual who is limited to the exercise of a legitimate right. the ecthr merely examines the second and omits the analysis of the first and the third (elosegui itxaso, 2014, 86). in the following lines, it is analysed the concept of reasonable accommodation from the european perspective. the cases of the ecthr under this concept fall under the following categories: a) recognition of implicit reasonable accommodation; b) religious days accommodations; c) religious signs accommodations; d) rejecting accommodation because affects third-party rights or public safety. iv.1. recognition of implicit reasonable accommodation states fail to treat differently persons whose situations are significantly different without an objective and reasonable justification. this was the case thlimmenos vs. greece. the candidate was disqualified for a public position because of having a criminal record, resulting from a conflict between the legal obligation to the military service and the jehovah witness conscience. objection of conscience to the military service was not recognised at the time of the case and, despite being recognised later, did not affect the disqualification of the candidate. according to ecthr, the reasons of the jehovah witnesses not to do the military service are different from the type of other criminals. case thlimmenos vs. greece20. sometimes, the court identifies duties of differential treatment that aim at levelling the playing field, without mentioning either the thlimmenos formula nor the ‘correcting factual inequalities’ line (henrard, 2016, 166) in the case glor v. switzerland, the applicant was diabetic and, because of this, he was unable to do military service and had to pay a tax. the complaint was the people with major disabilities didn’t have to pay this tax. the ecthr considered this unequal treatment to be unreasonable and a case of discrimination. case of glor v. switzerland21. in the case muñoz díaz v. spain, a romany widow with 6 children claimed against the social security’s refusal to give a widow’s pension. the facts were they were married by the romany rite, but not the catholic or civil way of marriage. the spanish constitutional court found there was no racial or ethnic discrimination in this rejection because the requirements for marriage are the same for everyone. however, the european court of human rights found an accomodationist solution based on analogous reasoning. therefore the court compared these cases’ circumstances with the invalid marriages but with good faith of the spouses. then this permits a solution for 20 thlimmenos v. greece (2000) ecthr, 6 april, app. no. 34369/97 parar. 34. 21 glor v. switzerland (2009) ecthr 30 april app. no. 13444/04. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 102 this case, but did not recognise romany marriage with general effects. case of muñoz díaz v. spain22. in the case dh v. czech republic, there were special schools for people with special needs. these were used by people with disabilities and roma people. according official data, more than half of the romany children in czech republic attended these special schools. the ecthr affirmed this is a case of indirect discrimination. the court explained that although it was unintentional and it seemed neutral, it was a discriminatory measure that was disproportioned and highly prejudicial to a minority. case of dh. v. czech republic23 . the court explained that an act is discriminatory if “it has no objective and reasonable justification” and there is not a “reasonable relationship of proportionality” between means and ends. “where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”. case of dh. v. czech republic24. in the orsus and others v. croatia, the ecthr analysed the reasonable relationship of proportionality between the means and the ends of the croatian authorities’ measures with the roma only classes. the court concluded that these measures had no objective and reasonable justification. case of orsus and others v. croatia25. there are two similar cases on exemption to religious oriented education courses by different parents convictions and a lack of pluralism and neutrality in norway and turkey. in the first case, norway has a state religion and a state church, of which the 86% of the population are members. the evangelical lutheran religion remains the state’s official religion. the applicant claimed for a total exemption of a course of christianity, religion and philosophy, called krl subject. in the folgero case, the ecthr decided that the krl subject was incompatible with the european convention of human rights because it was not conceived in an objective, critical and pluralistic manner. the denial of an exemption to the parents was also against the european convention. case of folgero and others v. norway26. in the case hasan et eylem zengin c. turquie, an alevi confession’s claimant sought an exemption from the religious culture and moral knowledge course. this was justified under human rights legislation and the principle of secularism. case of hasan et eylem zengin c. turquie27. 22 muñoz díaz v. spain (2009) ecthr 8 december app. no. 49151/07. 23 dh and others v. czech republic (2007) ecthr 13 november app. no. 57325/00 parar. 184. . 24 idem, parar. 196. 25 orsus and others v. croacia (2010) ecthr 16 march app. no. 15766/03 parar. 184. 26 case folgero and others v. norway (2007) ecthr 29 june app. no. 15472/02 parar. 102 27 case hasan et eylem zengin c. turquie (2007) ecthr 9 october app. no. 1448/04 parar. 84. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 103 another case involved a romany girl who was sterilized in presov hospital. the procedure was not an imminent necessity from a medical point of view. the applicant did not give her informed consent for it. instead, she was pressured and deceived by the doctors so she would consent to sterilization. case v.c. v. slovakia28. there was not sufficient objective evidence to convince the court of the doctors’ bad faith conduct or an intention to discriminate based on race or ethnic origin29. different human rights defenders identified serious legislative and common practice shortcomings in relation to sterilizations. those shortcomings affect roma people especially because they are a vulnerable and disadvantaged group. the court found in favour of the claimant because the state failed to protect the effective enjoyment of her right to respect her private and family life as member of a vulnerable group. case of v.c. v. slovakia30. in turkey, the claimant, a member of the alevi faith, stated that his identity card contained a “religion” box that indicated “islam”, even though he was not a member of that faith. the claimant alleged that the refusal to include “alevi” instead of “islam” went against the european convention. the court affirmed that the indication of the one’s religion on identity cards or in civil registers is contrary to the right not to show one’s religion. in this sense, the elimination of the religion box would be a good solution to the breach of this right. case of sinan isik v. turkey31. another turkish case concerning the alevi faith is case izzettin dogan and others v. turkey. although there is a constitutional and international provision to protect the freedom of conscience and religion, there is an official exclusion of the alevi faith and its practice. the specific claims of the applicant are: a) services connected with the practice of the alevi faith constitute a public service; b) alevi places of worship (cemevis) be granted the status of places of worship; c) alevi religious leaders be recruited as civil servants; d) special provision be made in the budget for the practice of the alevi faith. the court concluded that the refusal to recognise the alevi community as a religious community meant that the members of the alevi faith were unable to effectively enjoy their right to freedom of religion. in particular, the refusal complained of has had the effect of denying the autonomous existence of the alevi community and has made it impossible for its members to use their places of worship (cemevis) and the title denoting their religious leaders (dede) in full conformity with the legislation. the court affirmed there is a breach of article 9 of the european convention. case of izzettin dogan and others v. turkey32. these ecthr cases of recognition of a different treatment for those different could be considered reasonable accommodation cases. they have in common an initial 28 case v.c. v. slovakia (2011) ecthr 8 november app. no. 18968 parar. 117. 29 idem. 30 idem., parar. 179. 31 case sinan isik v. turkey (2010) ecthr 2 february app. no. 21924/05 parar. 60 32 case izzettin dogan and others v. turkey (2016) ecthr 26 april app. no. 62649/10 parar. 185. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 104 situation of lack of pluralism or neutrality that affects adversely to minority members and the solution is the accommodation of differences. in the great majority of these cases, there is indirect discrimination for certain groups. there is a balance under the principle of proportionality case by case between the means and the aims on these reasonable accommodation situations. according to henrard, interestingly, in a few judgments on complaints that pertain to the accommodation of the separate minority identity, the court did explicitly engage in a non-discrimination analysis. however, these complaints were actually complaints about unjustified disadvantageous differential treatment and thus about invidious discrimination. these judgements show that the court seems (increasingly) willing to engage in a non-discrimination analysis which balances the respective interests but only to the extent that the complaint concerns primarily the socioeconomic access-rights of the expression of that separate identity (access to a job = thlimmenos; access to a survivor’s pension = munoz díaz), and does not imply a restructuring of the public sphere or the visibility of these distinctive ways of life of ethnic and religious minorities. these cases rather confirm the heightened reluctance of the court to address complaints that directly concern the manifestation of a separate minority identity (henrard, 2016, 176). iv.2. religious days accommodations there are several cases, in ecthr case law, claiming for the lack of neutrality of the official calendar by different religious reasons. until now, the echr has always denied this kind of accommodations. however, there is a dissenting opinion in the case francesco sessa v. italy (2012) that for the first time the ecthr has mention explicitly the term “reasonable accommodation”. in the case of x v. united kingdom 1981 the applicant was a primary school teacher in a london public school who complained against the refusal by the school authorities to accommodate his working hours so as to allow him to take 45 minutes off at the beginning of the afternoon on fridays to pray at the mosque. the ecthr denied this accommodation. case of x v. united kingdom33 in the case of konttinen v. finland, a seven-day-adventist sought not to work on saturdays –from the sunset on fridaysin line with his religious beliefs. the european court refused to accommodate his petition because finnish legislation usually established sunday as day-off and there was no special provision concerning rest days for religious communities members. case of konttinen v. finland34. in the case of stedman v. united kingdom, the ecthr found that a dismissal was not discriminatory because it was not based on claimant’s religious beliefs, but rather on her refusal to sign a contract that established that she would have to work on 33 case x v. united kingdom (1981) ecthr 12 march app. no. 8160/78. 34 case of konttinen v. finland (1994) ecthr 3 december app. no. 24949/94 parar. 2 oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 105 sundays. according to the ruling, there was no difference in treatment for people of different religious beliefs. case of stedman v. united kingdom35. in the case of kostestki v. the former republic of macedonia, christian holidays were the official holidays and leaves of absence for certain muslim festivals were recognised. the claimant sought the application of this privilege as he contended he was muslim. however there were doubts as to his current faith. the court affirmed, in this case, that it was not unreasonable for him to be asked to show evidence of his faith. case of kostestki v. the former republic of macedonia36. in the case of francesco sessa v. italy the applicant was a jewish lawyer. the applicant pointed out that the judge proposed hearing dates coincided with jewish religious holidays (yom kippur and sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligation. he claimed for an accommodation and the judge denied it. the ecthr’s majority ruling found in favour the italian judge. they justified this decision on the protection of rights of others, on public’s right to the proper administration of justice, on the principle that cases be heard within a reasonable time and on the proportionality between means and ends francesco sessa v. italy37. in this case there is a dissenting opinion that is especially relevant because for the first time the ecthr used the term “reasonable accommodation” referring to a case. according to this view, a different solution of the case could be provided because it would not impose a disproportionate burden on the judicial authorities. this solution would be a compromise between no interference with the claimant’s religious freedom and with ensuring the proper administration of justice. case francesco sessa v. italy38. there is a case on this topic in the court of justice of the european union called vivien prais39. according to bosset and foblets, a candidate in an open competition organised by the council of the european communities claimed to change the day of the examination because it coincided with a religious day, which prevented the candidate from sitting it. her request to sit the test on another day was rejected. she alleged discrimination. the court did not accept the argument but instead accepted that “it is desirable that an appointing authority itself in a general way of dates which might be unsuitable for religious reasons, and seeks to avoid fixing such dates for tests”(par. 18) bosset and foblets added “such a reasoning is surprisingly close to the concept of reasonable accommodation. this position was undoubtedly a precursor for its time” (bossets, foblets, 2009, 58-59). 35 case of stedman v. united kingdom (1997) ecthr 9 april app. no. 29107/95 parar. 3. 36 case of kostestki v. the former republic of macedonia (2006) ecthr 13 april no app. 55170/00 parar. 46. 37 case of francesco sessa v. italy (2012) ecthr 3 april app. no. 28790/08 parar. 38. 38 idem, dissenting opinion of judges tulkens, popovic and keller, parar. 10. 39 court of justice european communities, 27 october 1976, case 130/75. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 106 iv.3. religious signs accommodations the cases on accommodation of religious signs have been decided by the ecthr according to the margin of appreciation doctrine and the test of proportionality. under this perspective, ecthr has considered lawful the prohibition by the national authorities of muslim veil or sikh turban at schools or the use of the burka in public sas v. france (2014)-. the first case was on a muslim teacher that wanted to wear a muslim veil while she taught in a primary school in switzerland. the pupils were aged between four and eight and the court stated that “in those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the koran and which, as the federal court noted, is hard to square with the principle of gender equality”. there was a balance between the right of a teacher to manifest her religion in front of need to protect pupils by preserving religious armony. the ecthr ruled that the geneva authorities didn’t exceed the margin of appretiation and the dissmissal was lawful. case of dahlab v. switzerland40. commenting this case, chaid considered that the balancing exercise the court is trying to make in its reasoning is imcomplete and a more pragmatic approach would be more appropriate in this case (chaid, 2012, 45). another leading case on religious signs was leyla sahin v. turkey on the prohibition of the muslim veil in turkish universities. the ecthr provide a proportionality test according to a means/ends judgment. in the sense, the court affirmed “the university authorities judiciously sought a means whereby they could avoid having to turn away students wearing the headscarf and at the same time honour their obligation to protect the rights of others and the interests of the education system.” the conclusion of the ruling is for the ecthr that “the restriction in question did not impair the very essence of the applicant’s right to education” case of leyla sahin v. turkey41. however, the most famous case on ecthr case law on religious signs was not on muslim veil, but on christian crucifix in public school classes. it was the lautsi v. italy case. the court conceded that the regulations confered on the country's majority religion preponderant visibility in the school environment. in the ruling decision, the ecthr stated that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the court's view, particularly having regard to the principle of neutrality. it cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”. according to ecthr, the presence of a crucifix in the classroom was not a process of indoctrination. case of lautsi v. italy42. 40 case of dahlab v. switzerland (2001) ecthr 15 february app. no. 42393/98. 41 case of leyla sahin v. turkey (2005) ecthr 10 november app. no. 44774/98. 42 case of lautsi v. italy (2011) ecthr 18 march, app. no. 30814/06. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 107 in the case of el morsi v. france (2008), the court ruled against a muslim woman who argued she had been denied access to the french consulate in marrachech because she has refused to remove her veil at security. the court held that the refusal to provide a female agent for the identification of ms. el morsi did not exceed the state’s margin of appreciation in matters of security. case of el morsi v. france43. there are some french cases concerning the prohibition to wear the muslim headscarf at school. once the court had admitted that the ban was compatible with art. 9 echr, the only way applicants could try to convince the court that their right had nonetheless been violated was arguing that the signs they wore where not ‘ostentatious’ or not religious. cases of aktas v. france (2009)44, ghazal v. france (2009)45, bayrak. v. france (2009)46 and gamaleddyn v. france (2009)47. two similar cases concerning the prohibition to wear a sikh turban at school jasvir singh v. france (2009)48, ranjit singh v. france (2009)49. in the cases of drogu v. france (2008)50 kervanci v. france (2008)51, two girls refused to take off their headscarf during sports classes. in the case of sas v. france (2014) the applicant contended that the ban on wearing clothing designed to conceal one’s face in public faces, deprived her of the option of wearing the full-face veil in public. the ecthr considered “the government indicated that it was a question of responding to a practice that the state deemed incompatible, in french society, with the ground rules of social communication and more broadly the requirements of “living together”. from that perspective, the respondent state is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”. case of sas v. france52. a recent case, the european union court of justice affirmed that the prohibition of wearing the muslim veil in the workplace is not direct discrimination by religion or belief. the court also affirmed that this could be a case of indirect discrimination unless the employer had a political, philosophical and religious neutrality policy in its relations with customers an there is proportionality between means and ends53. 43 case of el morsi v. france (2008) ecthr 4 april app. no. 15585. 44 case of aktas v. france (2009) ecthr 30 june app. no. 43562/08. 45 case of ghazal v. france (2009) ecthr 30 june app. no. 29134/08. 46 case of bayrad v. france (2009) ecthr 30 of june app. no. 14308/08. 47 case of gamaleddyin v. france (2009) ecthr 30 june app. no. 18527/08. 48 case of jasvir singh v. france (2009) ecthr 30 of june app. no. 25463/08. 49 case of ranjit singh v. france (2009) ecthr 30 of june app. no. 27561/08. 50 case of drogu v. france (2008) ecthr 4 of december app. no. 27058/05. 51 case of kervanci v. france (2008) ecthr 4 of december app. no. 31645/04. 52 case of sas v. france (2014) ecthr 1 july app. no. 43835/1 parar. 153. 53 case of samira achbita, centrum voor gelijkheid van kansen en voor racismebestrijding v. g4s secure solutions nv (2017) 157/15 european union court of justice. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 108 the european court of justice recent case is interesting because the employer’s muslim veil workplace prohibition is not considered direct discrimination under the european directive. however, there is an open door to consider it indirect discrimination for muslim women if it is not objectively justified by a legitimate aim as a policy of political, philosophical and religious neutrality in the relations between the employer and the customers and the means to achieve that aim are appropriate and necessary. this neutrality purpose for the relations between employer and the customers could affect adversely to the minority members, for example the muslim women who want to wear a veil in the workplace. this needs a special judgment of proportionality between purpose and means and it should be done case by case. iv.4. denying accommodation by the rights of others or public safety there are some cases that it could be considered that there is an indirect discrimination for the people with certain religious beliefs, but it is not reasonable to accommodate them because this affects directly the rights of others or the safety. in the case of pichon sajous v. france 2001 the applicants claim affects the right of others and in the interesting case of eweida and others v. united kingdom (2013), the case of the applicant ms eweida pass the test of proportionality, the case of the applicant ms chaplin faces a problem with the clinical safety and ms ladele and mr farlane claims fail because affects directly the right of others. in pichon and sajous v. france (2001), two pharmacists complained that they had been convicted for refusing, for religious reasons, to sell contraceptive pill in their dispensary. the ecthr considers that, as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere54. in the case of eweida v. united kingdom (2013), there were judged 4 different situations concerning accommodations on religious beliefs and practices. the first applicant is ms. eweida, a practising coptic christian, that worked as member of the check-in staff for british airways. there is a wearer guide with some rules on the uniform although there were authorisations to wear sikh turbans and muslin hijabs. she decided to wear a cross openly and he was removed for her position. the ecthr considered lawful to wear the cross in this case55. the second applicant is ms. chaplin, a practising christian, and works as nurse. she wears a cross in her neck although there was a uniform code that affirms “jewellery must be discreet”. the ecthr considered that in this case wearing the cross affects the clinical safety and follow the margin of appreciation doctrine56. 54 case of pichon and sajous v. france (2001) ecthr 2 of october app. no. 49853/99. 55 case of eweida v. united kingdom (2013) ecthr 15 of january app. no. 48420/10. 56 case of eweida v. united kingdom (2013) ecthr 15 of january app. no. 598442/10. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 109 the third applicant is ms. ladele is a christian who believes that same-sex civil partnerships are contrary to god’s law. she worked in the london borough of islington, local public authority as registrar of births, deaths and marriages. she refuses to carry out civil partnerships on the ground of the sexual orientation of the parties. the ecthr affirmed that the applicant claim affects the rights of others and denied it.57 the fourth applicant is mr. mcfarlane, a practising christian, that holds the deep belief that the bible states that homosexual activity is sinful. he worked in as giving confidential sex therapy and relationship counselling service. the applicant recognise that he has difficulties in reconciling working with couples on same-sex sexual practices and his duty to follow the teaching of the bible. the ecthr affirmed that the applicant claim affects the rights of others and denied it.58 these cases pichon and sajous and the three applicants of eweida case are good examples of principle of proportionality application and fundamental rights balance. the plaintiffs’ claims could be considered legitimate by their religious faith perspective, but it cannot be considered legal because they affect the right of others. in the case of the check-in assistant who wants to wear a cross, it was no affected any important protected interest and was considered lawful. v. conclusions reasonable accommodation from the european perspective is a quite new notion. ecthr case law is quite restrictive and is only applied in certain situations where no disproportionate burden is present. ecthr case law clearly shows reasonable accommodation may be denied when third-party rights or public safety are affected. although the law only expressly recognizes disability as grounds for reasonable accommodation, ecthr precedent may be understood to incorporate religious reasons as just grounds. the european terminology and approach to this topic are different from american and canadian cases, as it it is focuses on avoiding indirect discrimination and on the judicial application of the principle of proportionality. according to ruiz vieytez, the generic valuation of reasonable accommodation as a legal instrument must necessarily be positive. it may not be so, however, the scarce extension that has so far and its constriction to certain areas of diversity. in this regard, we have argued that international law on human rights, in its current version, can serve as a basis for the reception of reasonable accommodation in european legal systems. the norms that prohibit discrimination, present in all relevant legal treaties, including the european convention on human rights, can give legal coverage to the use of this concept in our continent. the ideas of complex equality, indirect discrimination and discrimination due to undifferentiation, already present in our systems, even in an incipient or fragmentary way, serve to this effect without the need to proceed with farreaching regulatory reforms. on the contrary, it is necessary a jurisprudential and 57 case of eweida v. united kingdom (2013) ecthr 15 of january app. no. 51671/10. 58 case of eweida v. united kingdom (2013) ecthr 15 of january app. no. 36516/10. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 110 interpretative work that advances in this line, helping to adapt the exercise of basic human rights to the plurality of existing identities (ruiz vieytez, 2009, 19). on key difference between the canadian and european situations is that in europe, setting aside disabled persons’employment, there is currently no general principle governing reasonable accommodation for the whole society. the result is that there are far fewer request for its application or assessments of its potential. hoewer, canadian experience shows how hard it is in practice to determine where the responsabilities lie in specifics cases. it is very likely to determine that reasonable accommodation as a concept will undergo futher changes in the years to come (bosset, foblets, 2009, 64). according to solanes, although harmonization practices have been largely linked to religious freedom, they are applicable within the broader framework of cultural diversity, taking into account cases that are related to linguistic issues, customs and traditions. in that sense, both in the public space as in private measures of this kind can be useful to avoid major disputes. for example, they are recommended in the management of public space (for example for the location of worship centers or the celebration of certain festivities), in the educational field (not only compulsory, but from a broad dimension that also includes the university), in health, in the workplace (beyond the temporary adjustment), in food, in funeral ritual, in the access and enjoyment of public services, etc. favoring practices such as informal agreement or concerted adjustment, always in line with democratic values, is the prelude to avoid judicializing conflicts that in many cases could be solved by way of prior negotiation. it is also a way to encourage people to manage their differences without increasing the work of the courts and promoting values such as exchange, negotiation and mutual respect on the basis of which they sustain policies based on interculturality. however, the proposals for the implementation of these practices have received, in the canadian context, multiple criticisms that, as noted, reached a significant dimension in relation to the so-called crisis of accommodation (solanes corella, 2017, 327). in an interesting essay, called litigating religions, mccrudden characterised two legal approaches on religion and the state. the first approach –separationist-, the ‘wall of separation’, imagines two spheres one representing the state and the other respresenting religion, although this simple picture is quickly rendered more complex. the second approach -accomodationistposits that there is and should be an element of co-existence and co-influence, even co-maintenance, between religion (or some religions) and the state. this approach may warm into an attitude of cooperation (mccrudden, 2018, 71). mccrudden continued to add: “neither of these approaches is adopted wholesale in either the united states or the echr, but is probably true to say that the separationist approach is closer to current us first amendment doctrine, while the accomodationist approach is closer to the ecthr’s position. but we should not regard either of these oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 111 models as set in stone in the respective jurisdiction. the position in each jurisdiction discussed continues to evolve, and it is conceivable that the interpretation in each could move closer to the other” (mccrudden, 2018, 71). it is complex to use academic labels especially based on judicial cases, because several specific circumstances must be summarised in one word. although mccrudden’s statement was not extreme, in reasonable accommodation case law it could be argued that the american supreme court has been based on an accomodationist approach and the european court of human rights has been focused on a separationist approach. it is possible to find certain cases in another direction in these jurisdictions and the important point is the causes of justification of these different rulings. the cases will be reviewed to clarify links between them and these models of religion and state. the american supreme court accepted some accommodations in certain cases, but not an absolut right to accommodate in all circumstances. in the american approach is especially relevant to the economic reasons from the benefit-cost analysis. the case of scherbert found in favour of an adventist of seven day believer that did not want to work on saturdays if there was no compelling state interest. the case of yoder found in favour of an exception to compulsory public education to amish teenagers between 14 and 16. the case of griggs was the first case of indirect discrimination based on the situation in a company of black candidates for job promotion and the origin of affirmative actions. the case of smith found against of an exception for a religious use of peyote. the case of hardison found against an accommodation if this involved more than minimal cost. along the same train of thought, the case of philbrook found against an accommodation if this involved more than minimal cost. the case of caldor found against an absolut right to sabbath observers not to work on their holy day. in some recent cases, they found in favour of accommodating: these are the cases of need inp. school dist, kasson and khpa in which there were no economic cost implications. from the accommodationist approach, there are the cases of scherbert, yoder, griggs, need ind. school dist., kasson and khpa. on the other hand, from the separationist approach, the case of smith and caldor could be included. the cases of hardison and philbrook could be considered under a benefit/cost analysis’ pragmatic argument and don’t fit into the separationist/accommodationist classification. it could be argued that american supreme court reasonable accommodation case law is closer to the accommodationist approach although it includes some cases from other approaches. canadian case law on reasonable accommodation has been especially open and sensitive to cultural and religious diversity. however, it was not recognised an absolut right to accommodate in all circumstances. the employer was able to use a general policy, called bona fide occupational qualification (bfoq), instead of using a system that it requires individual exceptions. the case simpsons-sears found in favour of accommodating an adventist of the seven day believer. the case of meiorin found in favour of recognising an indirect discrimination. the case central alberta dairy pool found in favour of recognising to the employer a duty to accommodate unless there is undue hardship. the case of bhinder rejects an exception due to safety reasons and reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 112 because the employer was following a bfoq. canadian supreme court reasonable accommodation case law clearly embraces the accommodationist approach and, for instance, it established a duty to accommodate for the employer unless there is undue hardship. european court of human rights case law on reasonable accommodation has developed mainly from the concept of indirect discrimination that is explicitly recognised in european law. this court has been reluctant, generally speaking, to admit exceptions for religious reasons, but this could be explained because those cases usually came from france and turkey that are countries with an active secularism and the court’s application of the margin of appreciation of national authorities. in the cases of thlimmenos vs. greece and glor v. switzerland the apparently neutral application of the law adversely affects the members of the minorities –jehovah witnesses, diabeticsand a judgment was handed down based on the interpretation of the minorities differences. in the cases on segregated schools for romany children, called dh v. czech republic and orsus and others v. croatia, the court interpreted the existence of indirect discrimination towards an ethnic group and these segregated schools for romany are against human rights. in the case of muñoz díaz v. spain it was recognised an exception of the general application of the law interpreting that a marriage by the romany rite has analogy with the void marriages but with good faith. this produced effects to concede a widow’s pension in this case, but it was not a general recognition of marriages by the romany rite. in the case of v.c. v. slovakia, which focused on the sterilization of a romany girl, legislation on such operations was fount to negatively affect minority groups, such as romany women, despite doctors harbouring no ill will or having racially motivated reasons to harm them. in the cases of folgero and others v. norway and hasan et eylem zengin c. turquie, an exemption from compulsory religion oriented courses by other convictions parents was claimed. it could be interpreted that the official state religion, and its mandatory teaching in schools, impacts adversely on the minority members that want their children be educated with other values. it is a criticism of the lack of the state pluralism and neutrality from the minorities’ point of view. there are two cases also linked with the lack of pluralism and neutrality of the turkish state.: that are sinan isik v. turkey and izzettin dogan and others v. turkey. in sinan isik v. turkey, there is lack of pluralism because on the national identity card there is a box for religion as “islam” instead of “alevi”. the court found it discriminatory to give information about religion on the identity card. in the izzettin dogan and others v. turkey case, the issue of whether services connected with the oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 113 practice of the alevi faith constitute a public service. in this case, the claimants sought public recognition of the alevi faith by the turkish state. there is “no objective and reasonable justification” to treat the alevi community differently. the ecthr has a restricted view on reasonable accommodation regarding religious days. in all analysed cases, reasonable accommodations are denied. there is a mention of reasonable accommodations in the dissenting opinion of francesco sessa v. italy. on these issues, it is important to consider that what appears as neutral came from a particular cultural and religious tradition. in america and in europe, treatment of those who are different and role of minorities are diverse. the american approach accepts exemptions for the religious reasons in workplace whilst in europe, equal treatment tends to be applied without exception. the ecthr also has a restrictive view of religious signs accommodations. the ecthr considers the margin of appreciation of the state in different cases, in particular the french application of the laicité principle. ina recent case, the european court of justice declared that the ban of the muslim veil in the workplace did not constitute direct discrimination and gave some criteria to be considered when establishing indirect discrimination: unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain. in this case, it meant a justification was needed. if there was no justification, female muslim workers who wore a veil would be found to have been indirectly discriminated against. in other cases, the ecthr was restrictive with the exemptions on religious grounds because the third party’s rights or safety were affected. for example, in the case pichon and sajous v. france ecthr found against a pharmacist that refused, on religious grounds, to sell contraceptive pills in their dispensary. the pharmacist attitude could affect third-party rights because these contraceptive pills were legal. in the case eweida v. united kingdom, the ecthr considered that an airways check-in assistant who wore a cross to be lawful, but not in the case of a nurse on public safety grounds. the third and fourth applicants sought exception on religious grounds at work with regards to homosexual couples. the ecthr found against the applicants because their demand affects the third-party. this was a case of a “disproportionate burden” because in only considering a religious approach would imply a serious discrimination to another minority. there were few cases on the accommodationist approach from the european court of human rights. basically, these were based on the application of the indirect discrimination concept. for example, the cases of thlimmenos vs. greece and glor v. reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 114 switzerland were based on the situation of a jehovah witness and a diabetic and the indirect discrimination situations. other cases were based on the situation of the romany. for example, on the racially segregated schools, the cases of dh v. czech republic and orsus and others v. croatia, on the recognition of the widow pension to a romany widow married by romany rite, the case of muñoz díaz v. spain, and on forced sterilisation, the case of v.c. v. slovakia. in the great majority of the other cases on reasonable accommodation case law, the european court of human rights has followed the separationist approach. the case of folgero and others v. norway and case of hasan et eylem zengin c. turquie recognised the right to a plural and secular education in front of compulsory confessional courses. in the cases of sinan isik v. turkey and izzettin dogan and others v. turkey found in favour of recognising rights to alevi community that implied a separation between church and state. in case law on religious signs accommodations, in general terms, the european court decided rulings from the separationist approach denying accommodations. most of these cases came from france and turkey that had an active secularism system and the margin of appreciation clause played a role. the only and main exception on religion signs accommodations was lautsi v. italy on the crucifix in public schools’ classrooms. in this case, the european court adopted an accommodationist approach. this is a controversial case on the interpretation of secularism and what that sign meant in the italian society. with regards to religious days accommodations, the european court also followed the separationist approach and denied accommodations. in the case of francesco sessa v. italy, the majority of the court followed a separationist interpretation, but the dissenting opinion used the term and justified a reasonable accommodation for the first time in this court,. in the case of pichon and sajous v. france, the ruling affirmed the separationist approach. in the case, third party’s rights were implied. the case of eweida v. united kingdom, the first two decisions on cross necklesses were based on an accomodationist approach, the second also considering the exception of public safety. the two other decisions of the eweida case on not to perform professional services to homosexual couples were based on a separationist approach. mccrudden expressed the idea that, in these cases, it might be possible to find some solutions to accommodate religious conscience when third-party rights are clearly capable of protection (mccrudden, 2018, 121). it could be concluded that the european court of human rights reasonable accommodation case law was mainly based on the separationist approach. however, there have been some cases were indirect discrimination has been applied. on the other hand, the lautsi case, which has become one of the leading cases, followed the accomodationist approach. lautsi was a case of an accommodation of the majoritarian and traditional religion of italy. this was clearly against the separationist approach. oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 115 the notion of reasonable accommodation is linked to substantive equality and to treating those who are different equally, as apparently neutral treatment actually discriminates against a group of individuals. ordinarily, religious reason may exempt a member of a minority group from the general rules. in the european context, this must be interpreted by the principle of proportionality and the relationship between purpose and the means to achieving it. reasonable accommodation could be a promising concept in european law if there is a redefinition of the neutrality, pluralism and difference notions. the relationships between state and religion are complex and diverse in almost every european country. some authors, like habermas, have explained the current situation as post-secular societies. if religion still has an important role, minorities could demand a new definition of neutrality and pluralism and, in some cases, an exemption by religious reasons. this could only be possible attending the principle of proportionality, the respect of third-party rights, the respect of the public order and public safety, and how these exceptions for religious reasons affect the cost and other analysed usual conditions. in europe, it could be a positive evolution of reasonable accommodations if there is an emphasis in the indirect discrimination schema and the effects of neutrality for minorities, but, in any event, reasonable accommodations must always pass a proportionality test focusing on the means 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religious diversity and accommodation in the european workplace, ashgate, farnham, surrey, pp. 33-58. comandé, giovanni (2010), “discrimination and reasonable accommodation: “insight” from a (non) zero sum game”, opinio juris in comparatione, vol 2, paper num. 2, pp. 1-39. conway, kyle (2012), “quebec’s bill 94: what’s “reasonable”? what’s “reasonable accommodation”? and what’s the meaning of the muslim weil?”, american review of canadian studies, vol. 42, num. 2, pp. 195-209. doi: https://doi.org/10.1080/02722011.2012.679150 de campos velho martel, leticia (2011), “reasonable accommodation: the new concept from an inclusive constitutional perspective”, sur international journal on human rights, vol. 8, num. 14, pp. 85-111. de schutter, olivier (2006), “three models of equality and european antidiscrimination law”, northern ireland legal quarterly, vol. 47, num. 1, pp. 156. dworkin, ronald (2013), religion without god, harvard university press, cambridge mass. elosegui itxaso, maría (2013), el concepto jurisprudencial de acomodo razonable, aranzandi, cizur menor. https://doi.org/10.3917/riej.062.0001 https://doi.org/10.1177/1023263x1001700203 https://doi.org/10.1080/02722011.2012.679150 oscar pérez de la fuente the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 117 elosegui intxaso, maría (2014), “el concepto jurisprudencial de acomodamiento razonable. el tribunal supremo de canadá y el tribunal europeo de derechos humanos ante la gestión de la diversidad cultural y religiosa en el espacio público”, anuario de filosofía del derecho, vol. xxx, pp. 69-96. foblets, marie-claire (2013), “freedom of religion and belief in the european workplace: which way forward and what role for the european union?”, international journal of discrimination and the law, num. 13, vol. 2-3, pp. 240255. doi: https://doi.org/10.1177/1358229113504350 gibson, matthew jonathan roland (2012), locating religious liberty in the united kingdom: religious exceptions and role of reasonable accommodation, doctoral thesis, university of liverpool. hatfield, robert (2005), “duty to accommodate”, just labour, vol. 5, pp. 23-33. henrad, kristin (2012), “duties of reasonable accommodation in relation to religion and the european court of human rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality”, erasmus law review, vol. 5, no. 1, pp. 59-77. henrard, kristin (2016), “the european court of human rights, ethnic and religious minorities and the two dimensions of the right to equal treatment: jurisprudence at different speeds?”, nordic journal of human rights, vol. 34, num. 3, pp. 157177. doi: https://doi.org/10.1080/18918131.2016.1225656 intxaurbe vitorica, josé ramón (2015), “cuando dios también ficha a las ocho. el origen del acomodo razonable de las prácticas religiosas en el puesto de trabajo”, derechos y libertades, núm. 52, pp. 205-238. kymlicka, will (1998), multicultural citizenship. a liberal theory of minority rights, oxford university press, oxford. locke, john (2002), the second treatise of government and a letter concerning toleration, dover publications, mineola, new york. mcconnell, michael (1991), “accommodation of religion: an update and a response to the critics”, the george washington law review, vol. 60, pp. 685-742. mccrudden, christopher (2018), litigating religions. an essay on human rights, court and beliefs, oxford university press, oxford. nussbaum, martha (2012), the new religious intolerance. overcoming the politic of fear in an anxious age, harvard university press. o’connell, rory (2009), “substantive equality in the european court of human rights?”, michigan law review. first impressions, núm. 107, pp. 129-133. pérez de la fuente, oscar (2005), pluralismo cultural y derechos de las minorías, dykinson, madrid. parekh, bhikhu (2000), rethinking multiculturalism. cultural diversity and political theory, harvard university press, cambridge mass. https://doi.org/10.1177/1358229113504350 https://doi.org/10.1080/18918131.2016.1225656 reasonable accommodation based on religious beliefs or practices. a comparative perspective between the american, canadian and european approaches the age of human rights journal, 10 (june 2018) pp. 85-118 issn: 2340-9592 doi: 10.17561/tahrj.n10.5 118 rollins, garry (2007), religious expressions in the growing multicultural workplace”, journal of diversity management, vol. 2 num. 3 pp. 1-11. rosenzweig, sidney a. (1996), “restoring religious freedom to the workplace: title vii, rfra and religious accommodation”, university of pennsylvania law review, vol. 144, pp. 2513-2536. doi: https://doi.org/10.2307/3312675 ruan, nantiya (2008) “accommodating respectful religious expression in the workplace”, marquette law review, num. 92, pp. 1-29. ruiz vieytez, eduardo j. (2009), “crítica del acomodo razonable como instrumento jurídico del multiculturalismo”, cuadernos electrónicos de filosofía del derecho, núm. 18, pp. 1-22. sakaria, anajali (2002), “worshipping substantive equality over formal neutrality: applying the endorsement test to sect-scecific legislative accommodations”, harvard civil rights-civil liberties law review, vol. 37, pp. 483-502. sledzinska-simon, anna (2016), “is there a place for the islamic veil in the workplace? managerial prerogatives and the duty of reasonable accommodation in the eu anti-discrimination governance”, era forum, num. 17, pp. 203-220. doi: https://doi.org/10.1007/s12027-016-0429-0 solanes corella, angeles (2018), “acomodo razonable en canadá y discriminación indirecta en europa como garantía del principio de igualdad”, anales de la cátedra francisco suárez, núm. 51, pp. 305-333. https://doi.org/10.2307/3312675 https://doi.org/10.1007/s12027-016-0429-0 oscar pérez de la fuente1f sherbert v. verner was the first main case on reasonable accommodation in american case law. a seven-day adventist worker was dismissed because she did not want to work on saturdays, her holy day . she sought unemployment benefits because she was unable to find a job a... sherbert test, which is used as a guide for when a person’s religion and/or ideology is to be accommodated. the test is as follows: the employer must: the first case was on a muslim teacher that wanted to wear a muslim veil while she taught in a primary school in switzerland. the pupils were aged between four and eight and the court stated that “in those circumstances, it cannot be denied outright t... references hatfield, robert (2005), “duty to accommodate”, just labour, vol. 5, pp. 23-33. the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 60 the challenge of the cultural diversity in mexico through the official recognition of legal pluralism josé israel herrera 1 abstract: this article explains the factual situation of the recognition of legal pluralism in mexico, the way it has been handled out in a formal way and how diversity has become a challenge in mexico. cultural rights are in a process of discovery and recognition, and have been focus as a way to restrict indigenous rights’ instead of a broad way that can fit all indigenous people with respect and consideration to the national legal order. keywords: interlegality, multiculturality, legal pluralism, indigenous human rights, mayan law. summary: i. introduction; ii. the problematic; iii. the cultural defense; iv. rules of conflict and interlegality; v. legal pluralism; vi. formal legal pluralism; vii. 32 states, 32 different policies; viii. formal legal pluralism in the yucatan peninsula; ix. on the recognition of mayan law as a cultural right; x. restricted formal legal pluralism; xi. conclusions on the interlegality in quintana roo; xii. final considerations; references. i. introduction mexico has been defined as a multicultural nation but at the same time as indivisible and indissoluble. since the mid-90's, there began a series of changes paving the way to eventually recognize officially the local legal institutions of the ethnic groups peoples living in the country. these changes occurred as a result of different factors such as the establishment of alternative legal systems of justice, “the adoption of the indigenous and tribal peoples convention 169 of the international labor organization” (krotz 2001: 2 3) “the first international decade of the world's indigenous peoples (1995-2004), the zapatista movement uprising, national and international pressures, among others.” (herrera 2014: 70) the formal recognition as a multicultural country, leads us to the question, how many ethnic and minority groups there are (or were) in mexico? which are these? which 1 faculty of law of the autonomous university of yucatán, méxico. member of the national council for sciences and technology of mexico (conacyt) level 1. (israel.herrera@correo.uady.mx). josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 61 might be officially recognized as such? who are the members? where are they? what kind of policies will be established for them? and what kind of policies will be or must be established? i am dealing with the how local people and or traditional judges are interacting with state law and vice versa. the mexican state at this point is facing a process of alterity, that is to say an encounter between two groups (krotz, 1994: 6) that have not met each other before causing astonishment and that hitherto has never been recognized in its history. it is also a relationship between deep mexico and imaginary mexico (bonfil, 1989: 21), as well as a process of establishing formal legal pluralism by officially recognizing the social existence of distinct groups and peoples as well as their right to govern themselves and to develop their own institutions of administering justice. in the last 30 years there have been four big amendments to the law which recognize different indigenous rights in mexico: 1. the signature and ratification of the convention 169, the indigenous and tribal peoples convention of the international labor organization in 1989; 2. the addition of a paragraph to article 4 of the federal constitution in 1992, abrogated as of 2001 and 3. the constitutional reform on indigenous rights and culture of august 14, 2001. 4. the legal reform of june 16 th 2011 where the international instruments such as treaties and agreements were turned into mandatory and at the same level of the mexican constitution (which prior to this reform was considered the highest legal instrument), which also reinforces and strengthens the judgments of the inter-american court of human rights. ii. the problematic because of the ratification of the convention 169 in some states the legislature reformed their constitution and recognized different indigenous rights. in the first case are located the states of “guerrero (march 1987), oaxaca (october 1990), querétaro (november 1990 now repealed), hidalgo (october 1991). later, in 1992, the mexican rulers added a paragraph to article 4 of the federal constitution (which was repealed in 2001). in the second case, in the repealed document of 1992, the multicultural nature of the mexican nation was recognized as well as its obligation to protect and promote the distinctive characteristics of indigenous peoples and moreover, ensure their access to state jurisdiction. the states that adhered to this reform and adapt their local constitutions on the basis of the federal mandate were: sonora (december 10, 1992), jalisco (july 13, 1994 now repealed), chihuahua (october 1, 1994), state of mexico (february 24, 1995), campeche (july 1996), quintana roo (april 30, 1997), michoacán (march 16, 1998), chiapas (june the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 62 17, 1999), nayarit (august 21, 1999), veracruz (february 3, 2000), durango (november 26, 2000, now repealed), sinaloa (may 9, 2001). on august 14, 2001 the constitutional reform on indigenous rights and culture was published. since that time there have been important legal adjustments which sought to lay the groundwork for a new relationship between indigenous peoples, the state and society in general. 2 the mexican states however decided to implement the reforms one by one, state by state. they were allowed to decide how the indigenous reforms would be applied in their territory (dof 14 th august 2001), how to treat or regulate the relationship of the state with the indigenous groups living over there. on this basis reformed their constitutions: the states of san luis potosi (july 11, 2003), tabasco (november 15, 2003), durango (february 22, 2004), jalisco (april 29, 2004), puebla (10 december 2004) morelos (july 20, 2005), querétaro (january 12, 2007).” (guerrero garcía et al, 2007: 97-98) the states are free to decide if these reforms would be applied at all. these recognitions made at a constitutional level in the country, coincide in time with those made by a number of latin american states, reinforced by the ratification of convention 169 of the international labor organization (ilo), and are a significant symbolic break with the past. it has been suggested that perhaps we can speak of a “multicultural model emerging regional” model described by van cott consists of five elements: “the rhetorical recognition of the multicultural nature of their societies and the existence of local indigenous peoples as distinct, the recognition of the customary law of indigenous peoples as official public law (protected in articles 8-9 of ilo convention 169), the collective property rights protected in the sale, fragmentation or confiscation of lands, the status or official recognition of indigenous languages and bilingual education guarantees. in different ways the new constitutions include several elements of this model. (assies et al, 1999: 506) so far, there are only seven states in mexico, which have officially recognized the presence and legal validity within their state legal system of institutions of traditional (indigenous) justice. these are: campeche (1996), quintana roo (1997), chiapas (1999), puebla (2000), san luis potosi (2006), michoacán (2007) and yucatán (2011). as we can notice, the yucatan peninsula has three states, and only two did reform its legislation, campeche in 1996 and quintana roo in 1997. the state of yucatan, has neglected the reforms. this is conflicting because the states have not coordinated their policies towards the indigenous peoples and therefore issue different policies, which are not reciprocal or comparable among the three. this is the more deplorable as these three states together represent the second largest ethnic population of the whole country, the mayans. 2 the recent mexican reform (august 2001) to recognize indigenous rights has been widely questioned by the indigenous movement and sectors of civil society as a limited reform that recognizes rights that cannot be implemented. (sierra, 2005: 295) josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 63 mexico is a country that officially harbors 62 ethnic groups and 68 linguistic groups. (dof, january 14, 2008). at present in the country there are more than 10 million people considered indigenous 3 representing 10.5% of the total population of mexico 4 . the clashes between these ethnic groups and the mexican state judicial system are frequent; their legal traditions often confront national state legislation defining them as criminal by the state law. this is highly related to the fact that “ethnic homogeneity is exceptional according to some estimates, “most societies are now characterized by diversity, distinct identities and relationships, and statistics show that only about 10% of countries can be considered ethnically homogeneous. most states now face the demands of the minorities to award them a place in the set up of the state as different but equal partners”. (auriat, 1995: 460) the recognition of socio-cultural differences in legal systems within one country and state around the world has become one of the points discussed by governments, commissions, rulers and judges in latin america. the challenge of diversity (mentioned by assies et al, 1999) is about everywhere although the challenge takes a different form depending on the specific country involved. responses by the various states however have been very uneven and often did not lead to a proper understanding and acceptance of the distinct lifestyles of groups, while in terms of the legal recognition of these differences especially regarding local institutions of administration of justice, laws coordinating this local justice with the national state justice system are notoriously absent. regarding this latter point, coordinating laws, constitutional reforms almost always require the formulation and legislation of additional rules to establish the forms, ways and means of coordination and providing compatibility between the local and the national legal institutions. in mexico, very little progress has been achieved in the actual formulation of such laws of coordination. the lack of progress in formalizing the laws of coordination suggests a fundamental political difficulty and sensibility when it comes to the formulation of e.g. the limits within which an indigenous jurisdiction has to stay lest its decisions will be declared invalid and not binding by higher non-indigenous courts. this is the case of the indigenous tribunals of the state of quintana roo, established in 1. up till today the number of studies in mexico of what can be called cultural defense is not too big. cultural differences cases are those in which elements are related to diversity and cultural difference are playing a role in the judicial proceedings and reasoning. judges e.g. might try to produce better and more legitimate outcomes by taking into account 3 10,253,627 overall people are indigenous according to the national commission for the development of indigenous peoples. (serrano, 2002) and in 2010 this official number was 10,180,8216 according to the mexican oficial census of 2010. (instituto nacional de estadística, geografía e informática 2010) 4 this census does not include how many minority groups like the roma, african descendant population, asian ones are in mexico. the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 64 elements related to the distinct customs of persons belonging to indigenous people. renteln affirms that this issue has not yet attracted a lot of scholars because “they have mistakenly assumed that the field of investigation produces only a few and rare cases. of course, the numbers of cases are not necessarily an indication of importance.” (renteln, 2005: 18) the yucatan peninsula of mexico has not been the exception to all this and has its own answers to the challenge of diversity. in this area i will deal with a variety of socio legal fields. none of these has been studied thoroughly and even less so regarding the way the official legal systems deal with maya customs and administration of justice. iii. the cultural defense this study locates within the discipline of legal anthropology and cultural human rights. in this area specific attention goes to phenomena and processes of interlegality, formal legal pluralism, the empirical way of administration of justice by indigenous peoples and its relationship to the legal systems of nation states central topics also are the recognition or denial of indigenous rights within the set up of the state and its legal order, and the way in which cultural arguments appear in court proceedings and are taken into account or rejected or ignored. this last topic is the issue of cultural defense. currently in various countries like usa, canada and in europe, there is a debate about the boundaries and scope of the cultural defense, and if this debate is to be admitted or how it must be done. also there is discussion as to its role as a kind of mediator between official law and local, minority or indigenous law. while traditionally cultural defense has been considered in some countries, mostly it is not recognized explicitly. woodman for instance notes that the cultural defense as such does not exist in english law. but there are four types of defense in which it is possible that culture be taken into consideration. “while there is no culture defense as such in english law, there are four defenses in which it might be thought possible for culture to be taken into account. these are mistake, duress, self-defense and provocation. it has been said of each that they apply only subject to all that are subject to a test of ‘reasonableness’, that is, they apply only in cases, which satisfy an objective criterion formulated in the terms of reasonableness. the possibility that arises in that in considering whether an accused acted reasonably, it may be necessary to use the criterion of reasonableness held in the culture to which the accused belonged.” (woodman, 2009: 13) so, even if recognition is not explicit, cultural elements of the accused may be taken into account in the legal processes that take place daily. in mexico the situation is comparable. no explicit recognition of cultural defense exists at any level, and it is more an exception to the rule which is accessed through legal twists and subjective interpretations of the legislators. but, since the beginning of the josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 65 decade of the 90's, arguments of cultural differences and cultural defense in federal criminal cases is are becoming increasingly common. (however this does not mean they are accepted but only that they are mentioned.) still, within the mexican legal system we find that within the judicial practice and even within the codes themselves are enough elements that provide openings for judges to defend and set free indigenous suspects who claim existence of a cultural difference between them and the average population which as the case may be might lead to the judgment that their behavior although violating official law, should not be punished. the cultural defense is a topic with little discussion in law and legal anthropology. this is indicated by renteln, who utters: “because the practice of barring cultural evidence is so common, a cultural defense is necessary to ensure that such evidence is considered by the court. the adoption of a formal cultural defense does not mean that every defendant should be exonerated, nor does it mean that every plaintiff should prevail in a quest for damages or an injunction. a formal cultural defense would simply guarantee that cultural evidence could be presented in a court of law”. (renteln, 2005: 6) iv. rules of conflict and interlegality the analysis of the way in which justice is exercised by federal judges in cultural defense cases and by mayan judges respectively leads us to the analysis of the limits within which they themselves define their competences which they derive from the official regulation of their competences. such rules define the scope and limits of personal competence and material of indigenous jurisdiction and procedures for resolving the problems of mixed cases and disputes arising in the case law. according to hoekema they can be defined as follows: “the scope and limits, the personal and material competence of the indigenous jurisdiction as well as the procedures to solve problems of mixed cases and conflicts over jurisprudence” (hoekema, 2003: 190). in recent years in latin america with the adoption of international treaties and the recognition of various indigenous rights, the decade of indigenous peoples, and the protests and claims of ethnic groups, generated a process of changes in various legal devices. in (drafts of) coordination laws trying to delimitate competences of traditional (mayan) judges, to define the place of human rights as a requirement for the local judge, and in laws defining the material and personal competence of these judges, we meet such rules of conflict. also in the purely de facto practice of federal judges pondering whether or not to seriously consider a claim of cultural defense, one try to reconstruct de facto “rules” or rather “principles” that these judges seemingly see as guidance for their decisions. also in the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 66 this de facto judicial practice rules of conflict are to be found. sometimes, then, these rules have a legal standing, sometimes they just refer to empirical patterns to be detected in judicial practice. a different phenomenon is interlegality that also will play a central part in this article. this phenomenon manifests itself purely in day to day social life for instance when mayan people borrow elements of state law –or see themselves as a judge forced to take over state legal procedures and concepts, or vice versa, when official mexican state authorities borrow concepts from the maya culture and mix these with state law and procedure. hoekema develops the concept of interlegality as follows: “my leading question for these studies has been framed in terms of interlegality. national law and local law do not exist the one next to the other as self-contained entities or like billiard balls that perhaps hit each other, instead they are closed, massive entities in itself. on the contrary, there has been and there is a constant interpenetration between, for instance national norwegian law and the legal sensibilities of the original nordic inhabitants, the sami. certainly this often seems to be a one-way penetration only, from the powerful top to the bottom, but the minorities are not just helpless victims. they appropriate majority concepts and build these actively into their own legal outlook. sometimes there is such penetration in the reverse direction, when elements of minority law are accepted within the dominant legal order and perhaps even leave an imprint on the dominant legal concepts, procedures and practices.” (hoekema, 2005: 6) and “it can be defined as a process and as an outcome. a process of adoption of elements of a dominant legal order, both national and international, and with frames of meaning that constitute these orders, into the practices of a local legal order and/or the other way round. or as the outcome of such process: a hybrid new legal order.” (hoekema, 2005: 10 11) he uses as an example the aboriginal canadian practice of so called “healing circles” meant to try to conciliate someone who broke the order with his fellow community members. canadian state authorities sometimes borrow this ¨procedure¨ and introduce it in the official administration of criminal justice. “the term ‘interlegality’ was introduced by santos (2002: 437, first mention in santos, 1987). internormativé and métissage are the terms le roy uses (le roy, 1999: 250, 271). as a phenomenon it has already been common in legal anthropology for more than 30 years, after the legal anthropologists parted with the concept of and the quest for ‘pure’ indigenous law, and after national (colonial and postcolonial) administrators quit structural and evolutionary thinking (moore, 2001; merry, 2003).” (hoekema, 2005: 10) the first to use the concept of interlegality has been santos, but it was hoekema who developed its methodology. (simon thomas, 2009: 3) in mexico, teresa sierra (2004) uses a somewhat different definition with greater reference to the functional structure of society. she remarks that interlegality is defined as josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 67 “the stakes of legal regulations and legal discourses as it is updated in specific situations... that allow us to conceptualize legal dynamics ...the interlegality actually turns out to be an empirical dimension of legal pluralism and the practice of justice in indigenous regions.” (sierra, 2004: 43) this definition though linked and limited to the recognition of indigenous customs and certain functions of society, reveals that the large number of indigenous groups in mexico will produce a surprisingly rich and wide gamma of mixing and interweaving of local and state legal institutions. these ways and forms of recognition of local authority and law “can be called internal conflict rules. 5 these may be defined as follows: legal rules, part of national law, that define the scope and limits as well as personal and material competence of an officially recognized indigenous (or other distinct community-based) jurisdiction. they also establish the procedures to solve problems of mixed cases and conflicts over jurisdiction between this indigenous justice and the official one.” (hoekema, 2005: 2) this is a purely empirical process, as result of which a constantly changing hybrid form of law develops. v. legal pluralism latin america since the mid 80's began a series of transformations, at the constitutional level aiming at admission, accommodation, recognition and affirmation of the existence of populations and groups different from the dominant culture. 6 “clearly these communities cannot be just grouped under one heading, but for the sake of briefness i use one term: distinct communities, sometimes switching to local communities as well. almost every society is host to many socio-culturally different or ‘institutionally distinct’.” (moore, 2001: 106) encompassing societies like ‘first nations’ (indigenous peoples), national minorities, immigrant community 7 and the like. 8 (hoekema, 2005: 8 -9) 5 “internal” to distinguish this category from conflict rules to be found in international private law 6 the emerging international standards and the new pluralist constitutionalism imply recognition of collective rights granted to indigenous peoples and suggest the explicit recognition by the state of the right of indigenous peoples to self-government in a given territory based on their own political and legal traditions. such formal recognition presents the challenge of striking a balance between, on one hand, indigenous participation in the state and its institutions and, on the other hand, respect for the autonomy of indigenous institutions. (assies et al, 1999: 507 508) 7 not all immigrant communities are “institutionally distinct” over the whole range of human endeavours. 8 in this article i distinguish sharply between two constellations which are often taken together by the experts in legal pluralism. often the reference is also to the coexistence of state law and the normative ordering capacity of functional groups like medical professions, the new york sweat shop business, street-level bureaucratic groups and other “semi-autonomous fields”. the case of non-functional encompassing communities is different in that matters of identity, ethnicity, and socio-cultural diversity pose problems of the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 68 when talking about communities, here i follow the idea of hoekema when he mentioned: “i am dealing mostly with indigenous and with immigrant groups. national minorities pose similar questions as to the set-up of a multinational society as well as pluralist order of law and state. to one’s mind come cases like the catalan and basques in spain, the scottish and welsh in the uk, perhaps similar french examples like the bretons, as well as cases of national minorities such as there was on the balkan and in many other european countries (russians in the baltic states, hungarian minorities in romania).” (hoekema, 2005: 8 -9) particularly the acknowledgement of the fact that distinct communities are part of the population tends to open the eyes for a phenomenon hitherto denied and ignored, with the exception of some anthropologists and anthropologically oriented lawyers. griffiths (1986) provides a definition of legal pluralism that is attractive for its simplicity which i believe is still valid even after the passage of time. he defines legal pluralism as “the presence in the social field of more than one legal order” (griffiths, 1986b: 1) and then remarks that “'law’ is present in every ‘semi-autonomous social field’, and since every society contains many such fields, legal pluralism is a feature of social organization” (griffiths, 1986: 38). a situation of legal pluralism is therefore “one in which law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another” (griffiths, 1986: 39). the term legal pluralism refers us to the de facto existence of different orders and inter-related regulatory systems. particularly interesting are the encounters which take place day to day between state law and its authorities on the one hand, and on the other hand indigenous leaders and community members involved in their institutions of resolving conflicts and restoring order within their territories. the moment that these de facto existing non state institutions –local law– are becoming visible and even recognized as part of the state legal order, a series of new questions come to the fore. these questions can be grouped under the heading of formal, or official, legal pluralism. the way in which formal legal pluralism is established has been multiple and varied, from the recognition and establishment of “resguardos” in colombia (van de sandt, 2004) bolivia’s formal and informal ways of justice (assies, 1999; orellana, 2004), or, as in the case of mexico in which the recognition of legal pluralism is still in the discussion their own. let me follow here the footsteps of moore, who calls these two situations “entirely different” (moore, 2001: 106). josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 69 phase and largely unfinished. (sierra and chenaut, 1999; krotz, 2001, 2002). i shall now turn to this formal legal pluralism. vi. formal legal pluralism formal legal pluralism is introduced when governments officially recognize the existence of distinct indigenous groups, ethnic or minority groups in their country and accord them the right to apply and develop their own institutions of administering justice. in the case of mexico, the relation to these distinct communities has been shaped and reshaped by different historical circumstances and legal changes. recently more interest has emerged in accommodating the grievances of the indigenous peoples in mexico while also within the social sciences somewhat more attention is paid now to the issues involved. “the restructuring of international political forces is in relation to processes of decolonization in the world. it also situates the grievances and social movements for autonomy and / or self-determination in africa, europe and asia.” (valdivia, 1992: 111) moreover in the words of krotz, “the impact of the international debate on the ethnic question related to the central american wars, the unusual attention of various international agencies (from environmentalists to politicians) to indigenous people around the world, preparations for the fifth centenary of the arrival of the first spanish to american shores and the debate on the cultural aspects of human rights” (krotz, 2003: 95), has become “one of the three main fields of study of culture (religion, politics, indigenous people.)” (krotz, 2003: 93). in particular legal anthropology is the discipline that is doing most to study the changing relations between the indigenous peoples in mexico and the mexican official policies. the mexican nation once started life as an independent entity from spain, and reinforced by the revolution of 1917, issued a series of measures and laws to promote and advance the unity of the country and the existence of one mexican nation. on this basis, through legal provisions as to legal equality, it was thought that social equality would follow automatically. the mexican constitution established the basic rule that “all mexicans are equal before the law.” but in real life social differences and discrimination persisted particularly in the case of indigenous peoples and persons. in the early 90's however the government signed the “convention 169 on indigenous and tribal peoples in independent countries” of the international labor organization that is replacing the convention 107 of the same organization and doing away with the assimilative thrust of this former convention 107. mexico at this time was in a period of great changes and structural reforms designed to bring the country to first world in a very short period, to improve the country's international image as the “free trade in north america” was approved. one of the main concerns of the government of the day was to silence the claims of indigenous groups that after almost five hundred years of the first european contact, still were the most neglected, abused and least developed parts of the the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 70 population. the signing of the convention 169 would show that the country had them in mind and was doing its best to correct the former injustices. assies comments: “in 1989 it adopted the new ilo convention 169. mexico was the first latin american country to ratify the convention, although it was to project itself as a progressive country in the international arena. within the country the ratification went almost unnoticed.” (assies, 2003: 75) de la peña coincides with a similar view, noting that in 1989 this document was signed because of international pressure and political-economic concerns and not because the government took the indigenous case as a case of major concern. mexico ratified the convention in 1991, at the time, former president salinas was interested in gaining legitimacy for his government both within mexico and beyond. 9 de la peña notes that the changes also had strong relations with international political and economic circumstances and concerns of the government of the day. “after a highly contested election in 1988, the –president salinas– needed to build domestic support for radical reform policies and solicit international approval for the admission of mexico to the organization for economic co-operation and development (oecd). he also craved for the partnership of the unites states of america and canada in the north american free trade agreement (nafta). accordingly president salinas pushed legislative changes to allow for an easier flow of capital and commodities. most importantly, article 27 of the constitution was modified to allow for privatization of the collective peasant holdings created after the revolution. simultaneously, salinas promoted a change in article 41, in order to comply with the principles of ilo convention 169. after a rather cursory consultation conducted by the ini with indigenous organizations and a swift discussion and approval in the institutional revolutionary party (pri) –dominated congress of the union in july 1991.” (de la peña, 2006: 287) nevertheless, some modifications were made in mexican laws and some regulations to implement the convention, no serious obligations were entered into concerning the position and rights of the indigenous groups. assies called this move “the betrayed reform.” (assies, 2003: 74) it is required to all indigenous legal systems to be under the state conception of multiculturality “but without changing the constitutional order.” (escalante, 2004). jane collier and her studies at zinacantán in the 70’s were among the first studies examining the relationship, reproduction and relationships of the regulatory systems of indigenous groups from one region and processes of interlegality that could be observed. 9 the mexican post-revolutionary model, regarded with sympathy by the us government and academia in the 1940 70 period was no longer approved by the powerful northern neighbor: its populist and protectionist legislation was a hindrance to foreign investment and free enterprise. (de la peña; 2006: 287) josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 71 the existence of these proper indigenous regulatory institutions is due to circumstances like the absence of formal authority in those regions, the big distance to the state capital and the strong legitimacy of these institutions within the local communities. she discusses several examples of interlegality and forum shopping. however, since the mid-sixties and for over two decades, the study of contemporary indigenous peoples of mexico, ethnic relations and ethnic issues was practically abandoned. (krotz, 2003: 95). in mexican anthropology, sociology and jurisprudence, the study on indigenous groups, were designed as studies of an oppressed social class, identified under concepts such as indigenous, peasants, rural, suburban, urban or migrant workers. however, in such studies the indigenous population in a very short time came to occupy a central place in the anthropological discipline, which is due largely to the confluence of several factors outside the mexican anthropological discussion itself, among which the movements for autonomy and self-determination in various parts of the world. in the present day research of the legal practices of indigenous peoples, “not only become visible some structural features, but above all, cultural, that lead directly to the old and new debates in anthropology and dynamic configuration of symbolic universes the processes of diffusion and transformation of cultures and cultural relativism.” (krotz, 2003: 98) vii. 32 states, 32 different policies mexico has thirty-one states and one federal district as capital of the country. in total, the new reforms established that not the federal government should implement the reforms, but the states. therefore 32 different entities are responsible for carrying out the same number of policies towards indigenous groups and minorities living in their respective territories. with this strategy the federal state “wash their hands” giving the responsibility of the implementation of the strategy to all the states. the argument used was it would produce more effective results because the states are in contact with the population. but the reality has proved otherwise because this alone generated a large variety in the policies applied to the indigenous peoples because each of the states has a fair amount of political independence. an interesting aspect of the mexican case is the debate about the forms and extent of indigenous autonomy. the critical issue here is that the confinement of indigenous selfgovernment to the local community provides a too narrow basis for a kind of selfgovernment that provides real opportunities for the peoples involved. the community is only the last line of defense of indigenous identity and must be strengthened through the establishment of supra-autonomous schemes, such as municipalities and autonomous regions. the mexican government opposes these proposals invoking the spectre of balkanization. the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 72 in fact, the presidential initiative for constitutional reform published in march 1998 takes a very restricted turn. while it says that “indigenous peoples” 10 have the right to selfdetermination, a concrete expression of which is the autonomy of indigenous communities, the formula is reduced to a minimum: autonomy on the community sub-municipal level. these examples show that decentralization in itself “does not grant meaningful power or improved participation of hitherto marginalized groups.” (assies et al, 2001: 527 529) one of the groups affected was the mayan one, living in three states where they are the main ethnic group. because of different policies and different implementation thereof in each of the three states one and the same maya indigenous people is now divided artificially into three, even though they share a common past, language, traditions, culture throughout its history. for this reason we may expect different social processes of interlegality at work in the different states. viii. formal legal pluralism in the yucatan peninsula let me finally consider some of the legal changes in the three states of yucatan that have promoted formal legal pluralism in the sense of official legal recognition of the processes, traditions and customs of indigenous peoples and, in a wider sense, the recognition and acceptance of the indigenous peoples right to be respected in their difference and therefore in their existence as a distinct entity. the fact that constitutional changes have been approved and new laws issued, in which indigenous people’s identity and specific administration of justice are recognized officially could be interpreted as the legal conformation of a social process of reverse interlegality, as i have mentioned. however, it is difficult to determine to what extent these changes have been incorporated as a result of an influence of minority or indigenous groups in the country. in the case of mexico, from my point of view and experience this recognition is due more to the mexican state's own strategy than to a real influence of the indigenous peoples, with exception of the impact of the san andres agreements and the 500 years of resistance. in the yucatan peninsula, we found several interesting situations, such as the one in the state of yucatan, where the maya ethnic group constitutes in number and a majority in the population. even though their influence on the ruling elite is limited mainly because of a lack of structures of representation and influence. in this case we have to do with an underrepresented group.”” (herrera 2014: 70-71) customary law is not a coherent body of shared norms in a society, but in a specific way of organizing competing interests and “an arena where different strategies are 10 it should be noted that in spanish the word people means both “ethnicity” or “nation” (people) and “village” or “settlement”, a semantic feature that often lends itself to confusion and deliberate manipulation. josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 73 deployed existing asymmetrical power relations (dorontsky, 1990: 70). as comaroff and roberts have shown for the tswana in south africa, the rules or standards do not directly determine the outcome of the conflict resolution processes, but rather resources are managed by the actors and thus subject to negotiation.” (comaroff / roberts, 1981: 14, 216; roberts, 1979: 200 in gabbert, 2003: 136) in this movement the indigenous element was used as a common indicator to unite the ethnic mayan that hitherto had been dominated while their internal social structures had been broken. through the caste war new structures emerged especially of the military and religious type, which prevail to this day especially in the state of quintana roo. the caste war was a movement that promoted and revived the mayan identity in the region to such an extent that the structures are still standing even today, after more than 500 years of colonization, with more than 1 million members, the second largest in the country, a culture still alive and active.” (herrera 2014: 70-71) ethnic relations on the peninsula have been intense throughout the history of colonization, mexican independence and the revolution, but because of the fragmentation of yucatan in three states these relations developed along different lines. however, even though changes and challenges in the region are long standing and profound, research and researchers are just a few. as a result up till today there is no solid ground to evaluate properly how legal pluralism, both empirical and formal, manifests itself on the peninsula. ix. on the recognition of mayan law as a cultural right the recognition and incorporation of part of the traditional structure into the official system have formed a dual phenomenon. on the one hand, incorporation of parts of the traditional structure has led to an explicit recognition of their justice. on the other hand, the maya judiciary and their traditional administration of justice have been transferred and absorbed by the state of quintana roo. this is a phenomenon of mutual interlegality. both sides are influenced at the same time. also, the state of quintana roo shows signs of interlegality in reverse. on the one hand and for the first time anywhere in the country, the traditional judge’s decisions in criminal, civil, and family cases are accepted. on the other hand, the mayan ethnic group uses the criteria, characteristics and forms provided by the state of quintana roo in their judgments. in fact, a traditional judge's monetary compensation comes from the state of quintana roo. the judges write sentences in spanish, using seals and official documents and act on behalf the state of quintana roo although the resolutions are made verbally in the mayan language. this recognition, however, occurs in a geographical area that is still limited. there are only 17 communities where traditional courts are located even though the law applies to the entire state. due to a lack of resources, this law has not been the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 74 implemented in all communities that have requested it. “this means that the law allows and guarantees indigenous justice only in places where traditional courts have been installed. if there is no traditional court in town, no action taken by the inhabitants related to justice will be considered legal.” (herrera 2014: 72-73) gabbert mentions “due to the cultural diversity of indigenous peoples at a local level, the recognition of customary law can be based on a corpus of legal rules already established at a communal level. in both cases a compromise or consensus on the rules should be the result of a democratic decision-making. the structure of what is wrongly called customary law is quite different from national law. it is not a separate and autonomous sphere from society and therefore encoding it would mean a profound change. furthermore, due to its close relationship with the social structure, the customary law is changing continuously according to the economic and social conditions.” (gabbert 2006: 190) but what about communities where there is no traditional judge? resolving conflicts involves going to the nearest authority, such as municipal commissioners or delegates, or the nearest public ministry. that is a purely state official justice. x. restricted formal legal pluralism throughout this article i described the formal legal pluralism encountered in quintana roo as restricted. let me now summarize my arguments for that judgment. because of the historical processes the mayan people only had a judicial structure in an area covering no more than ten thousand people. in the other areas no form of communitarian justice exists at all or only at the family level only. but even in the area where communitarian justice still functions in the way. the combination of traditional and formal justice implemented in the state of quintana roo, has produced a new experience were mayan traditional judges nominated within the new state system are still “learning” how to deal with their position. they are still discovering how it works, they are watching how the other state institutions react to their competences, how the people in the communities respond to their work. this hybridization makes me to catalogue this system as restricted because it avoids the possibility of a development of the indigenous justice as it is, even when then one from the area has been weak for decades and hardly used. the experience of quintana roo has been mixed, because on the one hand there is a law that recognizes indigenous rights, and on the other side it is a law that recognizes these rights under some circumstances imposed by the state only. in mexico, the indian authorities’ decisions are accepted only “if they do not contravene the federal constitution, josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 75 human rights and the rights of women. that is, indigenous authorities are ultimately autonomous judge.”(sierra 2005: 294) this law, instead of promoting the development of a structure from below, promotes and establishes a structure from above. this law institutes a “higher” authority to organize and supervise the acts of the judges. it is not a self –regulated or community based kind of justice. this higher authority is settled on the mai, this figure is a judge who sanctions the work of the traditional judges and at the same time, an authority organizing and supervising the judges. on the one hand he tries to promote the traditional maya way of dealing with conflicts; on the other hand he is also keeping the judges within the confines of the model quintana roo has laid down. he is the link between the two worlds, the translator, and the guardian in the name of the recognizing state. also, this “traditional” maya system of administration of justice is not obligatory for maya people. first of all, the law defines itself as alternate: “article 6.the indigenous justice is an alternative to the ordinary judicial courts and judges of the common order...” the word alternate means it is also voluntary. people can go to the state judges without any reluctance, but when both parts agree to attend the indigenous justice and a solution is settled, it is when the decision is mandatory, if an agreement is not reached for both parties then the traditional judge tells the persons to go to another authority. in fact, the warning of “taking the case to other authorities if the problem is not solved” is quite frequent. it is also a way to pressure both parties to solve its case immediately instead of travelling far and spending money, time, and facing authorities who don’t speak the language. another characteristic of this official traditional justice is related to pay heed to all human rights and to all other rules and laws of the federation and the state; “they are seriously supervised via the mai, who reports to the officials instances like the supreme court. also, through all this time, they have been developing their conflict rules which tend to suffocate and debilitate enormously the recognition of “maya” justice-new-style.” (herrera 2014: 75) at the beginning of this article i mentioned there are 32 different entities which are responsible for carrying out the same number of policies towards indigenous groups and minorities living in their respective territories. the argument used was it would produce more effective results because the states are in contact with the population. but the reality has proved otherwise because this alone generated a large variety in the policies applied to the indigenous peoples because each of the states has a fair amount of political independence. the challenge of the cultural diversity in mexico the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 76 in quintana roo, even when it has been a good move to leave the state the responsibility of the implementation, establishing a full indigenous system, they have forgotten to interact with the other two states of the yucatan peninsula splitting the same ethnic group in three parts that share the same past, present and the same future. this is because in the area, there is a dominant group: the mayan group. they have been legally divided in three parts, three different policies. however, although some areas have been opened to build a multicultural justice, the experiences are limited and are framed by the constitutional requirement based on the model of legal “monism”, which means that cultural difference must conform to this model and that justice is not open to the recognition of pluralism and indigenous rights. (sierra 2005: 295) hence the statement about a restricted formal legal pluralism found in the region. xi. conclusions on the interlegality in quintana roo the state of quintana roo introduced a mixed system that has been called traditional and preserves some parts of the traditional structure. the clash of these schemes has generated processes of emerging interlegality still under development. as i have described extensively, the mayans of the region have taken over the new structure but have generated different ways to adapt their needs and idiosyncrasies to the formal establishment. for example, they have imposed their forms, stamps, styles and way of judging, they decided not to report all the cases, for the baptisms they have organized their own mayan christian church, and their marriages are valid only if they take place in the churches of their ceremonial centers. other towns have decided to go against the mai, choosing whether or not to use other formats. they are still “discovering” what their jobs involve. also, even when the mai is the central figure, traditional judges decide what information to pass on. as we saw in one of the cases of divorce, although the sentences had been handed down in 2002, they were not officially registered with the mai until 2008. likewise, there are an indeterminate number of cases that never were or never will be reported. returning to the example of divorce cases, the judge commented that he sought to protect the claimants' identity and personal privacy from the comments of the rest of the town. they develop their own rules of conflict and manifest a normative system consisting of the daily activities of official traditional judges. the same applies when judging cases that are not specified in the formats; the judges have to make their own decision or choose to follow the oral tradition, and people abide by the reconciliation simply because of the force of the word they have pledged. these cases are also reported. the judges have taken on other attributions in the exercise of their duty. they judge cases from other towns, for example. however, they will not judge every case that comes before them. in other words, they extend their functions and their territory even beyond the formally established limits. josé israel herrera the age of human rights journal, 4 (june 2015) pp. 60-80 issn: 2340-9592 77 summarizing all the features described, it is possible to see some characteristics of a weak and incipient interlegality under development. it is a new phenomenon arising from the clash between the law of the mexican state system and the traditional structure of the state of quintana roo. xii. final considerations human rights strengthen respect for cultural diversity, and at the present time, there is a new frontier of discussion on how difference should be understood, managed and answered. this response in mexico has been given in the form of shattering diversity and sees it as something that is outside of what is could be considered a part of the mexican society. in mexico it is wanted the exclusion of what is legally understood as culturally diverse rather than start a dialogue to help understand the existence of equality in diversity and a diversity in equality that could allow the construction of an era that could be denominate a new edge of cultural human rights. references assies, willem, gemma van del haar y andré hoekema, eds. 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(1997) law of rights, culture and indigenous organization of the state of quintana roo” (2014) mexican political constitution. méxico: porrua. the impact of the international convention on the rights of persons with disabilities on the qatari domestic legislation the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation1 rafael de asís roig2 maría del carmen barranco avilés3 patricia cuenca gómez4 pablo rodríguez del pozo5 khalid al ali6 abstract: the entry into force of the international convention on the rights of persons with disabilities means that state parties shall adapt their legislation and regulation to the social model designed in the international text. the present work aims to identify the general challenges faced by qatar in that task. after presenting the keys to understanding the requirements of the convention, the paper underlines the necessity of a cultural change in addition to a legal one. in this way, qatar shares with other state parties theoretical, legal, social and economic problems. specifically, the current medical model in qatar policies should be replaced with the conventional social model. this implies the elimination of discrimination based on disability, the universal accessibility, the legal capacity for persons with disabilities and their right to live independently. a priority is to generate an associative movement around disability. keywords: disability in qatar; human rights and disabilities; international convention on the rights of persons with disabilities; social model of disability; accessibility; legal capacity. summary: i. the international convention on the rights of persons with disabilities. general guiding principles; ii. implementing the crpd: universal challenges for qatar iii. impact of the convention on the qatari legal system; iii. 1. the model of disability: medical and rehabilitative iii; 2. universal accessibility; iii. 3. universal legal capacity; iv. concluding remarks. 1 this research was made possible by a nprp award # nprp 7 380 051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors. 2 universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). 3 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 4 universidad carlos iii de madrid, spain (patricia.cuenca@uc3m.es). 5 weill cornell medical college in qatar (prd2002@qatar-med.cornell.edu). 6 qatar university (kalali@qu.edu.qa). the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 1 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali introduction qatar ratified the united nations (un) convention on the rights of persons with disabilities (crpd) in may 2008 and is obliged as a signatory nation to implement a number of social and legal measures to become fully compliant. elsewhere (rodríguez del pozo et al. 2016) we have mentioned that this process requires a thorough study of doctrinal problems and public policies, and reform-oriented research that can give us some early clues regarding the general contextual and legal configuration of qatar concerning the protection of persons with disabilities. this article presents some results of a legal research aimed at analyzing the consistency between the current qatari legislation and the mandates of the international convention of the rights of persons with disabilities as a norm of a higher hierarchy explicitly embraced by qatar. in this context, only the legal rules are the object of study in this research. this does not mean disregarding the importance of factual issues in the effectiveness of implementing the crpd through domestic law. this is, though, the first step towards understanding the impact of the convention on the domestic legislation of qatar. once this is understood, the social sciences will need to do further research to determine how the legislation translates into tangible results on the field. in this paper we will discuss in general terms the main areas in which implementation of the crpd will affect domestic legislation in qatar. as we write this paper, the state of qatar is addressing the september 3, 2015 observations of the committee on the rights of persons with disabilities, which are based on the progress report submitted by qatar earlier in the year, and we believe that our work can help both the experts and the stakeholders identify the present and near-future challenges posed by the crpd that will have an impact on qatari legislation at large7. we will start by discussing the crpd’s innovative approach to disability and human rights and we will describe some of the common challenges that signatory states have faced when working to implement the convention, including some secular social preconceptions, some elements of classical legal doctrine that gainsay aspects of the crpd and financial warnings that could slow down the process of adapting domestic legislation to the mandates of the crpd. this will help put into context the main focus of our work. in a subsequent section, we will analyze the possible implications of the crpd for qatar's legislative framework. we will focus first on the disability model used when determining the legal definition of disability. secondly, we will analyze how the general guiding principle of universal accessibility is present in qatari legislation so that we can later discuss how the principle of universal legal capacity contained in the crpd might best be amalgamated. in this area we have found reasons to be more optimistic than the united nations committee tasked with following up on the convention. at every step, we will advance some suggestions aimed at addressing ways in which qatar might accommodate the main tenets of the crpd, while understanding 7 un committee on the rights of persons with disabilities (crpd), concluding observations in relation to the initial report of qatar, september 3, 2015, crpd/c/qat/co/1, available at: http://www.refworld.org/docid/55eed9fb4.html. (last accessed november 1, 2015.) the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 2 http://www.refworld.org/docid/55eed9fb4.html the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation that the adoption of some basic general steps will help reduce the time and effort required for its further detailed implementation. i. the international convention on the rights of persons with disabilities. general guiding principles. the convention on the rights of persons with disabilities was adopted on december 13, 2006 by the general assembly of the united nations at the end of a long, participative process that included not only government and international officials but also representatives of associations of persons with disabilities. disability was historically outside the concern of united nations human rights bodies (quinn and degener 2002: 20 ff., lawson 2007, mégret 2008). this changed in december 2001 when the general assembly passed resolution 56/168 creating an ad hoc committee "to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination and taking into account the recommendations of the commission on human rights and the commission for social development", and inviting the "states, relevant bodies and organizations of the united nations system, including relevant human rights treaty bodies, the regional commissions, the special rapporteur on disability of the commission for social development, as well as intergovernmental and non-governmental organizations with an interest in the matter to make contributions to the work entrusted to the ad hoc committee, based on the practice of the united nations"8. from the very beginning, thus, the un general assembly decided to approach disability based on what we have called elsewhere the social model and placed the future convention in the framework of the human rights system (rodríguez del pozo et. al. 2016). the process culminated in the approval by the united nations of the international convention on the rights of persons with disabilities, the first human rights treaty of the 21st century. the main purpose of the crpd is "to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity". this principle is patent throughout the preamble and the 50 articles of the convention. the first nine articles contain general principles about disability and how it should be defined, establishing a general framework for the interpretation of the rest of the text based on the social model of disability. in articles 10 to 30, the convention uses three different approaches to safeguard the dignity of persons with disabilities. first, it 8 ad hoc committee on a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities, available at http://www.un.org/esa/socdev/enable/rights/adhoccom.htm. (last accessed november 1, 2015.) the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 3 http://www.un.org/esa/socdev/ http://www.un.org/esa/socdev/ r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali ensures the effectiveness of existing human rights conventions by reformulating and specifying their content, adapting their definitions to the varied situations and experiences of persons with disabilities. second, it sets out new universal rights such as the right to universal legal capacity, the right to be supported in every decision-making process, the right to universal accessibility, the right to reasonable accommodation and the right to choose a way of life. third it states a set of specific rights of persons with disabilities. since the convention embraces the philosophy of the social model of disability, disability is understood to be the result of the interaction between individual impairment and social barriers. this is clear in the convention’s definition of disability, in its understanding of the role of the principle of human dignity, in its strategy of nondiscrimination, in the level of importance given to accessibility, in its interpretation of the concept of legal capacity and, finally, in the explicit reaffirmation of an inclusive social model. article 3 sets out eight general interpretation and application principles. in this section, we will analyze the five most salient ones starting with those two that we deem particularly important since they govern the contemporary discourse on rights: equal human dignity and non-discrimination. the principle of equal human dignity is at the heart of the moral foundation of human rights (peces-barba 2001, ansuátegui 2012). the concept of human rights cannot be understood outside this framework. this principle demands the free development of the personality; that every person, on the basis of his or her own autonomy, can choose and implement his or her life plan (asís 2013). human dignity, in this context, presupposes an independent living. this principle also presupposes that all human beings have an equal dignity. equality in terms of dignity thereby becomes another pillar of the convention. among the different ways of defining equality (ribotta 2010), the convention adopts one of non-discrimination and respect for diversity. the strategy of the crpd is to rely on the principle of non-discrimination with regard to all existing rights in order to ensure that such rights can be equally exercised by persons with disabilities. the idea of equality, embedded in the convention, determines the corresponding obligations of the states parties to ensure persons with disabilities are able to realize those rights (palacios 2009). the text clearly establishes the unacceptability of any distinction or exclusion, or any restriction of rights at any time and in any field, on the basis of disability. the concept of non-discrimination focuses on the discriminatory result and not on the intention and covers discrimination of all types (direct, indirect and structural) (quinn 2007). universal accessibility is already contained in the preamble of the international convention on the rights of persons with disabilities, highlighting the importance of "enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms". within the convention, accessibility is also included in the general the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 4 the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation principles of article 3, while the whole of article 9 is dedicated to the issue of accessibility. throughout the convention, universal accessibility is justified by taking three other fundamental rights as a reference: living independently, participating in social life and the right to equal opportunity9. full participation in social life is a right contained in the definition of disability and is the basis of many of the rights highlighted by the convention. however, although accessibility may be achieved through different means, it is important to focus attention on two of them in particular: universal design and reasonable accommodation (asís 2013: 77, asís 2007, barranco et al. 2009: 27-42). universal design means "the design of products, environments, programs and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design" (article 2). meanwhile, reasonable accommodation refers to measures intended to adjust the environment, goods and services to the specific needs of a person. reasonable accommodation acquires its full meaning when accessibility cannot be universally granted and thus it becomes an active right intended to remedy this particular situation. for example, it is a matter of universal accessibility to build ramps or install lifts for easy access to a university. it is a matter of reasonable accommodation to install a particular kind of light bulb at some reading desks in the library for those for whom standard lighting would not permit them to read. an integrated approach to accessibility involves: (i) universal design, which functions as a general principle that is the source of specific duties on the part of the government and the private sector; (ii) accessibility measures, which are required when universal design is not satisfied; (iii) reasonable accommodation, when it has been established that accessibility is not universal, which arises when universal design is not enough to assure accessibility in a particular situation because the features useful for the majority act as barriers when they interact with persons with special personal conditions. the question of the legal capacity of persons with disabilities was one of the most controversial topics in the negotiations that led to the convention. evidence of this is that during one of the sessions, the eighth, the convention was approved with a footnote to the relevant article that read, "in arabic, chinese and russian, the term 'legal capacity' refers to 'legal capacity for rights', not the 'legal capacity to act'". finally, after a complex negotiation process, it was decided to suppress the footnote referred to above. in general terms, the discussion centered on the adoption of two possible approaches: the first, and older of the two, adopted the "model of substitution in the taking of decisions" with its implied distinction between the capacity for rights and the capacity to act, thus perpetuating the condition of guardianship (or the equivalent status in each of the states parties) as an essential instrument. the other, a really novel view, in accordance with the social model, adopted the "model of assistance in the taking of decisions". this meant that a new legal status would have to be found, the basis of which would be providing support in the taking of decisions instead of substituting the 9 committee on the rights of persons with disabilities, general comment no. 2. article 9: accessibility (adopted april 11, 2014), crpd/c/gc/2. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 5 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali decision-making capacity altogether. the adoption of the assistance model amounts to an authentic paradigm shift in this area, one that will have an important impact on national legislation in countries that currently use the substitution model10. we will discuss below the challenges that this new paradigm might pose for qatar, and the excellent position the country is in to enable its implementation. finally, the defense of living independently and the advocacy of nondiscrimination makes the crpd an instrument that seeks to achieve an inclusive society that respects diversity. inclusion and respect for diversity, from a human rights approach, relies on four pillars that should structure public life and public ethics, namely, political participation, education, employment and the culture-leisure-sport triad. the convention thus states inclusive education, inclusive employment and inclusive sport, are mandatory. it must be noted that inclusion is not only the opposite to separation, but that it is also different from mere integration. inclusion is not always opposed to the construction of special and exceptional circumstances arising from special features, as long as they respect, as much as possible, individual rights and promote diversity. the implementation of the crpd has had some immediate repercussions, some of which represent a complete turnaround from the traditional approach towards persons with disabilities. firstly, the crpd transformed the way disability is viewed; rather than treating disabled persons as passive receivers of charity, they become active subjects of human rights. in this new paradigm, the social disadvantages suffered by the disabled are not to be eliminated as a result of the goodwill of others or of the state: instead, they should be eliminated because those disadvantages violate their fundamental human rights. the second impact of the crpd is that it has given persons with disabilities enormous visibility as a group; a natural consequence of the paradigm shifting from the expectant passivity of receiving charity to the active demands of defending fundamental rights. thirdly, the crpd has had significant repercussions for education at every level. inside the group of persons with disabilities and those who work on their behalf, the convention will naturally drive awareness of the crpd as a legal tool to advance the rights of the disabled. at the societal level, the crpd promotes the education of citizens on the nature and dimensions of disability. in formal academic education, the crpd requires that the needs of disabled persons are accounted for in the design of professional qualifications in an array of disciplines, ranging from law to engineering and from architecture and urban planning to political science. lastly, but most importantly, given the focus of our study, is the impact of the crpd on the domestic legislation of signatory states. the ratification and subsequent 10 on this paradigm shift, see quinn, g. (2009) and quinn, g. (2010). see also bariffi, f. (2009) and cuenca (2011). the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 6 the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation putting into effect of the convention require a revision, and oftentimes a reform, of the internal legislation of the different countries. ii. implementing the crpd: universal challenges for qatar implementing the convention and the social model of disability that it postulates is not an easy task for the legal system of any country. qatar will not be the exception. these challenges are beyond the reach of our study, but they need to be mentioned in order to have a comprehensive view of the work that lies ahead for qatar and to help place our contribution into the general context of that work. implementing the crpd has posed theoretical and philosophical challenges: challenges stemming from traditional legal doctrine and challenges that are social in nature. the theoretical challenges have to do with the acceptance of the social model of disability as the new philosophical paradigm, which requires leaving behind the historically assumed link between the social value of the person and his or her capabilities. the social model of disability is frequently viewed as being impossible to implement, while it is sometimes denounced as being limited to physical disability and one that pays little attention to diversity (asís 2013: 18 ff.). these criticisms observed in other state parties are most likely to arise in qatar, and the social actors and stakeholders must be prepared to address them. problems related to traditional legal doctrine arise, first, from the consideration of international law as a weak mandate, which calls into question the binding power of international treaties. legal doctrine will need to be updated to accept that treaties establish true legal standards, which on occasion will have a domestic constitutional dimension (cuenca 2012: 60-97, asís 2004). a second problem arises from the assimilation of the rights of persons with disabilities into broader economic, social and cultural rights, in which protection is always loosely defined (ansuátegui 2010, barranco 2010). every effort should be made to ensure that legal doctrine includes the fact that persons with disabilities have individual, civil and political rights as well as economic and social rights, and that they are protected under a uniform human rights statute. the third legal-doctrinal problem revolves around the notion of capacity. legal personality has classically depended on capacity, therefore the lack of recognition of capacity for persons with disabilities almost equates to their legal non-existence (quinn 2009, asís 2012). the typical response to the capacity of persons with disabilities is the replacement of the will of the disabled with the will of his or her representative. the model of supported or assisted capacity is, in this context, difficult to accommodate into the traditional legal doctrine. as we will see below, qatar already has made some inroads towards a model of assisted capacity, which will probably make its acceptance much easier than in other countries. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 7 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali social problems have to do with the public perception of disability. the disabled are still considered to be less valid, or even abnormal. disability is regarded as a misfortune11 and in some areas individuals are uncomfortable in the presence of persons with disabilities. the medical-rehabilitative model is still mainstream in most societies where disability is regarded and treated as illness. ultimately, the social model is not prevalent in the general population, which creates a number of obstacles to implementing the crpd; from lack of political priority to the fear of governments, from unpopularity to social rejection of measures considered as alien to a particular culture or simply too progressive. another kind of social problem stems from persons with disabilities, and particularly their families, being fearful that a new way in dealing with disability will decrease their protection mechanisms and put the persons with disabilities, ironically, in a much more disadvantageous position12. an additional social problem comes from the perception among the persons with disabilities and their families that in the context of the crpd rights play a limited role in relations between private parties. education is needed to spread an understanding that human rights also include the sphere of private contracts and actually limit the freedom of the parties to include clauses that are incompatible with those rights13. the last group of challenges are of an economic nature. some fear that adopting the crpd will have a negative impact on legal certainty, thus negatively impacting private business and economics in general since unpredicted, poorly understood rights may lead to imbalances in the field of legal and economic relations among parties. others point out that implementing the crpd is too costly. it should be made clear to the public and to the business sector that the cost of implementation is not excluded from the rights discourse14 and that cost considerations could limit changes made as a consequence of the crpd if it is proven that to do so will have a negative impact on other rights15. some of the problems highlighted are also present in one form or another in the other states parties. additionally, qatar is immersed in a comprehensive review of its legal and institutional organization. its strategy is aimed at renewing and developing the country, thereby reinforcing qatar’s commitment to human rights. nevertheless, reforms are occurring right now, so the architecture of their design and the processes employed to enforce these reforms are still open to input in the light of the crpd. furthermore, particular attention must be paid to the situation of certain groups or individuals, like women or migrant workers, in order to avoid multiple or intersectional discrimination, especially in cases where disability is also present. additionally, qatar’s 11 on the theory of personal tragedy, see oliver, m. (1996: 32) and barnes, c. and mercer, g. (2003:2-3). 12 these preventions and fears are sometimes present in the discussions and comments of states representatives and ngo representatives in the text of the draft available in the report of the working group to the ad hoc committee, a/ac.265/2004/wg/1, available at http://www.un.org/esa/socdev/enable/rights/ahcwgreportax2.htm. (last accessed november 9, 2015). see also de asís (2013: 19ff.) 13 see, on this last debate, venegas, m. (2004). 14 holmes, s. and sunstein, c. r. (1999). 15 de asís (2013: 145ff.) the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 8 http://www.un.org/esa/socdev/enable/rights/ahcwgreportax2.htm the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation presence in the international system of human rights protection is still relatively recent and the state is waiting for the ratification of instruments such as the international human rights covenants of 1966; the working group on the universal periodic review shows the intention to ratify these particular covenants in their report. iii. impact of the convention on the qatari legal system the crpd was ratified by qatar in 2008. therefore the crpd is mandatory for the state. qatar signed the optional protocol allowing for individual complaints (july 9, 2007), but this has not yet been ratified. qatar submitted its initial report to the committee on the rights of persons with disabilities in june 2012; the committee considered this report and published a list of concluding observations on september 3, 201516. it is possible to identify, based on the analysis of the legal framework in the light of the crpd, two kinds of changes to the qatari legal system that will be necessary: the general and the specific. the former has to do with the legal status and the social perception of disability, while the latter refers to specific reviews of the current legislation. in the following pages we will consider the model of disability and the impact of the guiding principles of universal accessibility and of universal legal capacity, which were explored earlier, to analyze the impact of the crpd on qatar's domestic legislation. some of our observations are supported by the above-mentioned concluding observations of the committee. iii.1. the model of disability: medical and rehabilitative a look at qatari legislation through the crpd lens highlights two preliminary conclusions that may serve as a working hypothesis related to the disability model and legal rules that support it: the prevalence of the medical model and the invisibility of disability. the legal framework of qatar seems to address disability in a medicalrehabilitation-charity model approach. disability is thus categorized as individuals who present special features and so are outside the range of what is considered normal. the goal in dealing with disability seems to be in trying to prevent it, and, if it occurs, to correct or rectify it as much as possible through domestic or state care for the disabled. these remarks come from the accepted norm that defines persons with disabilities: law 2/2004 on the respect for people with special needs, a provision based on special characteristics (special needs) and the importance of rehabilitation. this categorization may turn the treatment of persons with disabilities into a process of segregation by creating special systems and specialized solutions rather than including them in existing social structures such as schools, workplaces and local communities. 16 un crpd, concluding observations. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 9 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali this structure does not allow for universal accessibility, although there are many exceptions introduced by different departments and government agencies. the system of incapacitation and guardianship follows the same pattern, as we will see below. the committee on the rights of persons with disabilities has made similar observations when noting that qatari legislation on persons with disabilities "does not reflect the human rights model of disability" and that "there is a heavy focus on creating specialized solutions which lead to segregation"17. the medical model seems to be the most widespread in most societies, even in those that embraced the human rights model long ago. however, in the legal field, the medical model is being superseded, and it is certainly not the model employed by the convention. hence the importance of changing this model in qatari legislation and replacing it with the social and human rights-based model. the second part of this preliminary observation is that, although there have been significant efforts in promoting the wellbeing of persons with disability in qatar (rodríguez del pozo et al. 2016), disability in itself has not yet received systematic attention from legislation. this phenomenon is called the invisibility of disability, and has been observed in most countries as a consequence of embracing the medical or rehabilitation model. in this sense, the committee has noted that disability-based discrimination is not explicitly prohibited in the qatari legal framework18, which has made it quite difficult for persons with disabilities to invoke their rights and seek legal remedies, thus remaining invisible as a problem. indeed, even though there is a norm for persons with special needs –law no. 2 of 2004– the definition of disability is not explicit in a number of policy areas. when it is present it is included from the perspective of the medical model. while this is better than no presence and shows qatar's basic commitment to persons with disabilities, there are practically no references in the fields of television and broadcasting, transport, culture, sports, participation in social, political and cultural life and other legislative areas. the near absence of a direct reference to persons with disabilities in the qatari constitution is saved by a clear reference when establishing the requirements for access to political bodies and institutions, but its absence is noticed when the supreme law makes reference to equality. in order to become fully compliant with the crpd, it would be necessary for disability to be transversely present throughout qatari legislation and be based on the social and human rights-based model. the committee's conclusions support this observation. to this end, we will focus on the two requirements most relevant to the development of disability rights in qatar, in the order they appear in the crpd: universal accessibility and universal legal capacity. 17 un crpd, concluding observations, paragraph 7. 18 un crpd, concluding observations, paragraph 12. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 10 the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation iii.2. universal accessibility universal accessibility is presented as a sine qua non for the equal exercise of rights by all individuals. in this regard, it cannot be considered to be a matter subject to political goodwill, gracious concessions or as a reward for certain individuals or groups. from the social model perspective, the problem of a lack of accessibility can, thus, no longer be addressed by adopting special measures within a rehabilitation process. every person, as a member of society, requires accessibility as an essential condition to enable the material enjoyment of his or her rights by obtaining actual provision of services, using public facilities or effectively communicating with others. there are some areas that directly affect universal accessibility, namely: access to urban spaces (e.g. public places, buildings and facilities, public roads and parks, beaches, lifts, stairs, parking spaces for cars), buildings (e.g. accommodation, private housing, commercial buildings, public buildings), public transport (e.g. buses, taxis, underground, trains, planes, boats); access to devices or technologies intended to support an individual’s mobility (e.g. guide dogs, wheelchairs); access to mass media and telecommunications; access to visual arts; the use of alternative forms of communication such as braille, sign language or easy reading; the use of assistive technologies for communication, signing and educational purposes; access to health and social services, insurance and financial services, leisure and tourism; and access to public administration services and employment. the accessibility strategy presupposes the realization of universal design, accessibility measures and reasonable accommodation. our studies have found that the qatari legal system still needs a general law on disability or specifically on accessibility that establishes the obligation to remove barriers in all the above-mentioned areas. this is necessary for qatar to assume the mandate of the crpd regarding the state’s responsibility in promoting the material conditions needed for the full enjoyment of rights. nevertheless, there are some encouraging, albeit partial, provisions regarding the accessibility to certain facilities. in recent years, particularly since the ratification of the crpd, a number of interesting initiatives have been launched. the supreme council for family affairs made available a sign language dictionary, compiled through the qatar cultural & social center for [the] deaf19. the supreme council for information and communication technology (ictqatar) issued, in 2011, a national eaccessibility policy to make ict more accessible for persons with disabilities20. this policy aims at ensuring persons with disabilities have equal access to technology and it 19 qatar cultural & social center for [the] deaf (qcscd). the two parts arabic sign dictionary 2008, available at http://qdeaf.org. (last accessed, november 11, 2015.) 20 supreme council for information and communication technology (ictqatar), qatar's eaccessibility policy, 2011, available at http://www.ictqatar.qa/sites/default/files/documents/qatar's%20eaccessibility%20policy%20%20eng.pdf. (last accessed, november 11, 2015.) the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 11 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali covers a range of e-accessibility issues including websites, telecommunications services, handsets, atms, government services, access to assistive technologies and digital content. from the crpd perspective, it would be highly desirable for qatari legislation to assume the universality of accessibility as a precondition of the exercise of human rights and to aim to secure the full participation of persons with disabilities in all aspects of social life21. iii.3. universal legal capacity the convention approaches the problem of legal capacity in article 12, which embodies what is known as the "help and support in the taking of decisions model", by stating that "states parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." as was apparent from the discussions preceding the final text of the convention22, article 12 was quite controversial given the legislative modifications that it would impose on the domestic legislation of signatory states. this article represents perhaps the biggest challenge that stems from the crpd, since it incorporates the capacity to act—that is the capacity to create, modify or terminate legal relations by oneself—into the concept of legal capacity, going beyond the notion of capacity as the capacity to acquire rights. this novel concept, which represents the abandonment of the "substitution in the taking of decisions" model and its replacement with one of "assistance and support in the taking of decisions", projects its influence across all of the rights granted by the crpd, and is likely to provoke major waves in the domestic legislation of the state parties. the traditional view of legal incapacitation, based on a concept of disability anchored in the medical model, resulted in the absolute limitation of the legal capacity of certain people with physical or mental disabilities who were prevented from carrying out certain acts related to their assets and other matters of civil life (dhanda 2007, asís 2012: 5-25). the philosophy that informs the crpd, inspired by the social model and the principle of non-discrimination, supersedes this view. the traditional model is not consistent with the crpd requirements. there is, therefore, a need for new legal instruments based on support for the decision-making model and taking into account particular circumstances on a case-bycase basis, paying special attention to those expressions of the individual's will that either have to do with fundamental rights or with the type of help necessary for the person in his or her specific circumstances. 21 un crpd, concluding observations, paragraph 19. 22 see the report of the working group to the ad hoc committee, a/ac.265/2004/wg/1 http://www.un.org/esa/socdev/enable/documents/ahcwgreport.pdf. (last accessed november 8, 2015.) the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 12 http://www.un.org/esa/socdev/enable/documents/ahcwgreport.pdf the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation qatari legislation naturally responds to the pre-crpd model, and thus allows the deprivation or limitation of the legal capacity of persons on the grounds of disability, supporting the substitution model in the decision-making processes. the civil code and family code determine that the recognition of full legal capacity depends on full legal age, the age of majority being 18, and on mental competence. in this regard, those who are not considered to be in a sound state of mind can be incapacitated and appointed a guardian. law no. 40, 2004, on the guardianship over minors funds provides that "no person above the age of majority who is subject to a habitual state of madness or insanity, or is unconscious, mentally deranged or an imbecile … shall be allowed to take charge of his own affairs or to administer his estate." in its general provisions the act defines the meaning of "the insane", "the unconscious", "the idiotic" and "the imbecile" and identifies them as people with mental, intellectual or cognitive disabilities. interdiction or incapacitation of a person requires a court decision after verifying their condition through the oral testimony of knowledgeable people or employing other legitimate means of proof. legally incapacitated persons are subjected to a system of guardianship in which a third party takes care of or represents the person, or both, and administers his or her property in accordance with the provisions of the law. to carry out some proprietary acts of special relevance, the guardian needs judicial authorization. mental competence is also considered in qatari legislation as an essential requirement for the realization of legal acts and the exercise of civil rights including the right to marry and the right to a family life, to give or withdraw free and informed consent to medical care and to access justice. however, there are some elements in qatari legislation that are somehow avant la lettre compliant with the crpd, and could be interpreted as the seed of a new model that might extend throughout the legislation. in effect, the civil code, although anchored in the substitution model, allows persons with severe physical and sensory disabilities (particularly deaf and dumb, blind and deaf, or blind and dumb) who "cannot understand the contents or surrounding circumstances of a contract, or cannot effectively communicate his will" the possibility of appointing "a judicial assistant to assist such person as may be necessary in his best interests" (article 127). this notion could be extended to all fields where assistance in the taking of a decision is required. in any case, this assistance should focus not on the criterion of protecting the individual’s best interests but on supporting their expression of will and preferences. this approach, perhaps not easy to implement, would make qatari legislation truly advanced in implementing the mandates of the crpd. at any rate, it is safe to say that assisted capacity is not an alien notion in qatari law. this could be an advantage in the process of implementation. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 13 r. de asís roig, m. c. barranco avilés, p. cuenca gómez, p. rodríguez del pozo, khalid al ali this would require, however, no small effort, since the legislation would come to recognize the legal capacity of all persons with disabilities and would need to establish an assistant system that allows them to make all decisions themselves and exercise, with assistance, their rights in as much as that is possible (quinn 2010)23. in this area, the committee on the rights of persons with disabilities has expressed its "deep concern" about the qatari legislation on legal capacity and has recommended that the country carry out "a review of its legislation with a view to repeal regimes of substituted decision-making and replace them by supported decision-making regimes which uphold the autonomy, will and preferences of persons with disabilities24". we believe that this statement is rather pessimistic and perhaps not completely fair. the qatari civil code already contains, for special cases, a possible notion of supported capacity, and would just need to extend the assisted capacity model granted for those special cases to the rest of those that fall under the protection of the crpd. iv. concluding remarks the crpd is an innovative text in the treatment of disability in the way it has been crafted with the participation of persons with disabilities, in the philosophy and guiding principles it adopts, and in its legally binding status for the signatory countries as an integral part of the universal international human rights protection system. its ratification implies for each country the legal mandate to adjust their national legislation and their public policies regarding the treatment of persons with disabilities. the crpd redefines disability as the result of an interaction between the particular conditions of the individuals and the environmental, socially constructed barriers that prevent or hinder their participation in social life on an equal basis. the crpd's ultimate goal is to achieve an equal enjoyment of human rights and freedoms for all. the crpd establishes a series of guiding principles, among which equal dignity and non-discrimination are key. in addition, the crpd adopts the fundamental principles of universal accessibility and universal legal capacity, and the no-lessimportant concepts of inclusion and diversity. these principles can be made operational by adapting rights that were internationally recognized in a general sense for all human beings, taking into account the need to remove barriers to accessibility at large. the crpd also recognizes new rights that were not previously defined by any international law. 23 on the model of support, see cuenca, p. (2012). 24 un crpd, concluding observations, paragraphs 23 and 24. the age of human rights journal, 8 (june 2017) pp. 1-17 issn: 2340-9592 doi: 10.17561/tahrj.n8.1 14 the impact of the international convention on the rights of persons with disabilities on qatari domestic legislation the convention represents a radical break with historic tradition concerning the consideration and treatment of persons with disabilities. in this new framework, persons with disabilities are no longer passive receivers of charity but rather beneficiaries of enforceable rights. this translates into the need to review and sometimes reinterpret or even reform the domestic legislation of the signatory countries. like many other countries, qatar will face a number of challenges in becoming fully crpd-compliant. some of these have to do with theoretical or philosophical issues, others stem from the prevalent legal doctrine, and yet others are social in nature. other challenges are more specific. the qatari legal framework addresses disability from the medical-rehabilitation-charity model. this atomizes the application of the principle of universal accessibility, leaving it to the discretion of different departments and agencies, without a unifying body of rules. the medical model prevalent to date in qatar also affects the principle of universal legal capacity, which requires abandoning the so-called substitution model to adopt a model of assistance and support in the making of decisions for all persons with diminished mental abilities. in this point we find that qatar is quite well positioned to embrace the principle of assisted capacity since it already exists for some specific cases in domestic legislation. this would mean a breakthrough in the region. in this regard, we humbly disagree with the opinion of the un committee on the rights of persons with disabilities, which is much less optimistic. we recognize that full implementation of the crpd may require a cultural change, and that such a change should not rely exclusively on legislative amendments, but also on the awareness of the public and the sensitivity of those applying the legislation. references ansuátegui roig, f. j. 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http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc http://www.nuigalway.ie/cdlp/documents/publications/harvard%20legal%20capacity%20gq%20draft%202.doc rafael de asís roig1f maría del carmen barranco avilés2f patricia cuenca gómez3f pablo rodríguez del pozo4f khalid al ali5f i. the international convention on the rights of persons with disabilities. general guiding principles. ii. implementing the crpd: universal challenges for qatar iii. impact of the convention on the qatari legal system iii.1. the model of disability: medical and rehabilitative iii.2. universal accessibility iv. concluding remarks consolidation of arguments in favor of the right of access to public information as a fundamental right manuel palomares herrera1 abstract: analysis of the doctrinal position regarding the nature of the right of access to public information and the development of new arguments that reinforce and consolidate its fundamental nature. this right is recognized as a human right in many international declarations; in spain the legislation of transparency and enforcement is deployed as an instrumental right although it is recognized by many states as an autonomous fundamental right without need to be linked to other fundamental rights. key words: access to public information; transparency; fundamental rights. summary: i. introduction; ii. considerations and postures from the spanish doctrine; iii. the recent defense of the right of access to public information; iv. conclusion. abbreviations: aepd: agencia española de protección de datos/ spanish agency for data protection. art.: artículo/ article. boe: boletín oficial del estado/ official state gazette. ce: constitución española/ spanish constitution. ctbg: consejo de la transparencia y buen gobierno/ transparency and good governance council. id: identidad/ identity. lopd: ley orgánica de protección de datos/ organic law of data protection. ltbg: ley de transparencia y buen gobierno/ law of transparency and good governance. prlt: proyecto de reglamento de la ley de transparencia/ draft regulation of the transparency law. ptbg: portal de transparencia y buen gobierno/ portal of transparency and good governance. stc: sentencia del tribunal constitucional/ judgment of the constitutional court. tic: tecnología de la información y la comunicación/ information and communication technology. 1 phd candidate in law, universidad de jaén, spain (mph00007@red.ujaen.es). the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 126 consolidation of arguments in favor of the right of access to public information as a fundamental right i. introduction the spanish constitutional model establishes fundamental rights (arts. 14 to 29) in the first section of the second chapter of title i of the constitution entitled "on fundamental rights and public liberties". the legal development of the matters that occupy those articles will be by a special procedure for the so called organic laws. this is established by art. 81.1 ce: “organic laws are those relating to the development of fundamental rights and public freedoms, those which approve the statutes of autonomy and the general electoral system and other provisions in the constitution”. their guarantees are found in art. 53 ce [protection of ordinary courts, the constitutional court (161.1 ce)...]. in addition to the protection of fundamental rights by the armed forces and the state security corps and forces, as well as the public prosecutor's office (“ministerio fiscal”); it is also important to highlight the role of guarantor of the spanish ombudsman, according to art. 54 ce "for the defense of rights included in this title, for which purpose supervise the activity of the administration, giving an account to the cortes generales". many years have elapsed since the first legislative mention of the right of access to information in the swedish transparency act of 1766. from this milestone, internationally accepted precepts have taken place, such as article 14 of the declaration of rights of man and citizen of 1789, the seed of world declarations, article 19 of the universal declaration of human rights of 1948 or article 10 of the european convention for the protection of human rights and fundamental freedoms of 1950. although spain possessed legislative elements guaranteeing partial access to information, it has never come to recognize it as a fundamental right. law 19/2013 of december 9, of transparency, access to public information and good governance of spain anchored this law in the constitutional law of art. 105. b) ce, an article referring to access to records and records instead of rights such as information, expression, participation in public affairs and other similar fundamental rights. this law has aroused movements in the doctrine where there are different positions that will be analyzed below. ii. considerations and postures from the spanish doctrine the doctrinal reasons that support the essential fundamentalism of the right of access from the first position to the present date attest to the constant evolutionary process that it has had, the interest aroused in the doctrine and the confrontation of positions. the constitutional reality and analyzed preconstitutionally by its norms show the static nature of the right of access, which continues in practice up to the present, and this would remain the dynamic if it were not for a nascent transverse opening movement. the context of corruption and the irruption of transparency and free access as a counterweight in transversal areas such as the business, the digital media or the the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 127 manuel palomares herrera administration gave way to a stage that claims the right of access as a fundamental right which i humbly included for consolidation and expansion purposes. thus, we can say that there have been two differentiated stages with the before and after of the tics and the ltbg as a turning point. a conservative stage that, without denying definitively fundamental right influences and making it administrative and therefore never comes to consider as such the right of access despite having it as a constitutional right relegated and that assists some fundamental rights. in this sense, ridao martín (2014: 7) considers that access to public information can no longer be limited by other fundamental rights or other constitutional rights or assets. a new stage is forged with an “iusfundamentalist” sector (pro fundamental right of access) in the opposite position that absolutely models the right of access as a fundamental right by its relation of vital dependence with fundamental rights of arts. 14 to 19 ce. from the first drafts of a transparency bill, through the commissions of parliament in its drafting to the present day, this new doctrinal approach subordinates the right of access to the right to be informed mainly. the authors who recognize the right of access as linked to other fundamental rights such as the freedom of speech or expression and the right to take part in public affairs. apparently the aforementioned authors of the conservative stage did not have a doctrinal counterweight that allowed a fluid dichotomy during the 20th century because it was until now the doctrinal accepted line so that, these very numerous authors are representative of the assumption until the appearance of the sector pro fundamental right of access to public information influenced by comparative, contrasted, adapted and evolved reality. in the first stage, experts as fernández rodriguez, skeptic to add fundamental rights and acknowledged denialist2 or álvarez rico (1979: 111) as denialist of the fundamentalism of such a right and who links it without any mobility at the administrative law scale. the latter spoke of the right of access to administrative documents and not to public information in addition to relating this right to art. 20 ce and 105 ce. another doctrine of the same apparently negationist stage is that of pomed sánchez (1989: 110), who does refer to the right to information frequently ["the constitutionalisation of the right of access to archives and administrative records presupposes, firstly, a specification for a specific functional scope of the right to information, which is generally contained inl art. 20.1.d) ce"] and even links it with the principle of transparency but does not speak of an autonomous human right nor of a fundamental access in public life although it links with art. 23.1 ce. he starts from the idea of the interrelationship between the right to information, specifically in the field of public documentation, and the right to participation, according to which the author places the right of access to public information, not on 2 "i'm up to my hair and higher up. everyone fills their mouths saying rights and nobody does what they have to do. of fundamental rights, with which we have, spare. it seems to me, it is my opinion, that we have enough with what we have." journal of meetings of the constitutional commission of the congreso de los diputados. no. 254. february 12, 2013, p. 43. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 128 consolidation of arguments in favor of the right of access to public information as a fundamental right the right to public information but on the right to participate in public affairs (pomed sánchez, 1989: 96 and 160). both authors are closely linked with fundamental rights without at any time cataloging the right of access as such, remaining in the instrumental sphere and conformist with the administrative role that it currently bears. in addition to the instrumentalist links, there were in this stage autonomous criteria of denial, especially before 2000, such as those of embid irujo, who distanced any style of configuration as fundamental to the right of access to files, records or registers. according to this, its constitutional situation is the maximum criterion of interpretation, by which its inclusion in art. 105 ce and not between arts. 14 to 29 ce does not allow consider the right of access as a fundamental right in any case or by possible influence of international declarations. currently, the theoretical and fundamentalist reasons for ratifying the defense of the embid irujo line are purely descriptive, without pointing out compelling reasons close to this position, such as that of alexy (1993: 63), who pointed to fundamentalism from this situation of rights commenting that "fundamental rights are those that belong only and exclusively to the very foundation of the state and are therefore recognized as such in the constitution". this criterion of embid irujo seems a bit poor, conformist with the legal reality, leveraged in the immobility without opportunity for the constitutional evolution and far from the skepticism of that who tries to approach the legal reality to the social reality nevertheless and in spite of it, embid irujo (1994: 92) affirms that it is a subjective right legally configured that is possessed as long as one has the status of citizen admitting that there is a specific connection of this subjective right, with some fundamental rights such as those to free speech and to political participation of art. 20 and 23 ce, as their denialist counterparts say, because without access there would be no real possibilities of political participation. as it is proper at this stage, embid irujo himself (1994: 94) argued that although the right of access has an exclusively legal configuration and it has not an essential content, this does not imply that its regulation should be only legal. he also added that the legislator can develop the causes that, according to the constitution, except the constitutional principle and even can be considered "constitutional violation" the regulation that departs from art. 105 ce. in addition to professional jurists, there are negationist positions within the legislature, such as that of the parliamentarian gomez de la serna, who during the commission debate on the nature of the law doubted the defense that some experts like guichot or sánchez de diego had wielded in that the room for maneuver is marked by "a constitutional situation that we are given”3 and that would not give rise to any recognition other than the one that has the access in the art. 105. b) ce. olabarría muñoz, attacked the defense of the right of access as a fundamental right of art. 20 ce by stating that the defense by connection is "a somewhat imaginative or spiritualistic formula, that gives per saltum to article 20 of the spanish constitution 3 journal of meetings of the constitutional commission of the congreso de los diputados. no. 254 of 12 february 2013, p. 32. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 129 manuel palomares herrera the character or legitimation of the right to transparency of citizens when the jurisprudential sense of the constitutional court in relation with article 20 guarantees the information to the media, and that it has been linearly the jurisprudence with respect to this precept".4 on the other hand, with the turning point of the new millennium, another trend opens up, another stage in which a broad fundamentalist sector begins to be aligned5 in which several reformist authors are positioned influenced by the requirements of comparative law, by the new digital dimension of life. sánchez de diego (2008: 41) refers to this important change in life and the contiguous change that must be experienced by the legal system, especially in fundamental rights when he says that the "configuration of a right that is within evolution continues to respond to the problems that arise as society develops". during the legislative process of the ltbg some of these authors were defending this issue. so, one of the doctrinal defenders is villoria y mendieta, who claimed in the sessions of the constitutional commission of the congress that "first of all, as has often been said, it would have been ideal if the law were based on art. 20 of the constitution and not on the art. 105.b) because somehow we would have constitutionalised as a fundamental right transparency”6. it is striking the emerging iusfundamentalist fever since the administrative protection of the right of access in the ltbg, possibly because a change of course was expected and its aesthetic but static final result has driven to many researchers to take the step of the opposite critical motivation. this generalized movement makes us speak of an iusfundamentalist stage that reaches since the adoption of that law until now. thus, there are different types of doctrinal positions, both those that strongly value the right of access as fundamental and those that partially and succinctly consider it because of its link to other fundamental rights. carbonell is one of the first to differentiate himself from many other fundamentalists because he goes further and defends the constitutionalization of the right of access to information by itself and exclusively from the provisions of the constitution as the basis of natural law, that being a response to the denialists who rely on the constitutional location of the right of access. this autonomous defense of the guarantee of essential goods and services must be reasoned, although controversial of course, since the right is not an exact science that determines what is or is not basic for each subject. 4 journal of meetings of the constitutional commission of the congreso de los diputados. no. 254 of 12 february 2013, p. 41. 5 here we find, in addition to the constant elements of comparative law and authors that will be referred to below, authors whom we have alluded with assiduously as villanueva, e., ruiz-rico ruiz, c., ridao martín, j., mendel, t., rams ramos, l., cotino hueso, l., sánchez de diego, m., or villaverde menéndez, i. 6 journal of sessions no. 308 of april 24, 2013 available at: http://www.congreso.es/public_oficiales/l10/cong/ds/co/dscd-10-co-308.pdf pp. 2-4. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 130 http://www.congreso.es/public_oficiales/l10/cong/ds/co/dscd-10-co-308.pdf consolidation of arguments in favor of the right of access to public information as a fundamental right carbonell (2006: 7) indicates that this protection is basic since this right reaches the most essential elements of the person. when the professor determines that the right of access to public information is intimately related to that of freedom of expression, with electoral rights and "more generally" with the democratic conception of the contemporary state, he is just pointing out basic elements of the person and the society, given that freedom of expression has no content without the information as well as suffrage cannot be properly exercised without the timely information to be able to exercise it if it is to be rational. this reflection leads to consider the value of this right in a model of governance, so the right of access to information and the value of it in a democracy must be protected thoroughly if a real democracy is to be guaranteed and what better way to do it than with the deepening of the right of access. in this line of defense carbonell (2006: 10) makes a thesis from the antithesis when pointing out that in dictatorships and authoritarian regimes of despotic and populist type it has always been common to obstruct such a right. thus exposed is what is diametrically opposed, a truly democratic government acts in a completely open way, that is, limiting secrecy to the maximum to allow free access to information and clearly that the best for such an aim is the consideration of this right as a fundamental one. another historic figure of this stage is mestre (1998: 71) although his ideas are not very far from those of pomed sánchez. this author offers us a solid foundation of defense by connection in the fundamentalism of access when he speaks of the right of access to public information as the right to participate in public affairs where the right to access the administrative files and records is a necessary assumption for the exercise of the fundamental right contained in art. 23.1 ce "citizens have the right to participate in public affairs ...”. in particular, the singular spanish case without an express or recognized fundamental constitutional right to public information, has also led to its indirect constitutionalization through the right to participate in the public affairs of art. 23 ce but with distorting effects. this is because only a fundamental right of public information is recognized for political representatives, but not for represented citizens. the consideration of the same right with a dual nature according to its exercise is, however, difficult to assimilate from a constitutional perspective, especially to act in both cases as a means for the exercise of fundamental rights and not as an end in itself. the right of public information gives such coverage to human rights that are a further basis for sustaining the right of access as a fundamental right as it also opens a gap between its holders whose constitutionality can be challenged for having an objective and reasonable justification from the principle and right of equality. this is so since the reservation of public information with the rank of fundamental right is only for political representatives based on ius in officium, without citizens being guaranteed access to the same documentation. here there is another small fundamentalist reason why the step must be taken. having said this, mestre (1998: 80) shows a certain fundamentalist reluctance in his interpretation of art. 105. b) ce when it is awarded to the media for journalistic the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 131 manuel palomares herrera purposes with which only they could have access to investigate records and archives to mediate and satisfy the formation of public opinion and the fundamental right to freely communicate with which the right of access remains in the range of instruments for this guild, the only subject of law of the precept. although the link is exposed, this specific line of interpretation is not shared in this thesis or at this stage in the case that the fundamental right of access was only guaranteed by the journalistic sector as a conveyor of information, as this is reminiscent of censorship and repression. the dependence of the right of access to public information with other fundamental goods as the right to expression is another foundation of fundamental importance. thus, the fundamental right of art. 24.1 ce, for example, is not understandable for the author if it is not possible to access files that provide basic information to take a stand in a case, take action and act according to procedural law so that again the right of access would be an instrumental crutch of the right to judicial protection as well. mestre follows a similar connection with other primary rights as with the right to honor or to privacy, but not as an instrument but as a limit drawn from its literalness. in this connectivity as a foundation, it could be argued again that of access with art. 20 ce. if something is to be expressed, that something quite possibly has been somewhere before rather than in possession of the person who expresses it. if a documentarist, an analyst, etc. possesses information about the public that they are going to present and express, it is because they have previously been nourished by that information and have needed access, this being a sine qua non requirement. in this line is desantes (1987: 160 and ss.), an author who argues that the legal foundations of the right to information of the fundamental art. 20 ce connect with those who hold the art. 105. b) ce and that the recognition of the right of the latter is inadequately placed in the charter by not linking paragraph b) with a) or c). the totally or partially iusfundamentalist authors pro fundamental right of access to public information also agree on interpreting the right of access from the freedom of information of art. 20 ce, which encompasses many rights such as research, broadcast and reception of information content, but there is no doubt, as stated, that to teach you have to learn how to inform, so you must be informed because knowledge is not authentic science. so if there is no right to be informed, the right to inform would be more an art than an exact science. for this reason they limit the right to be informed and to investigate to those who are professionally engaged in it. today this line is refutable alluding to the digital reality of a world in which tic´s turn the thumb into an information content broadcast channel so that each individual can broadcast information without having to dedicate themselves professionally to it and where the academic degree which certifies a profession according to research, is less and less required. according to desantes´s line of interpretation and to the digital fact of tic, it should be noted that the current legislation has some failings in the application to the the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 132 consolidation of arguments in favor of the right of access to public information as a fundamental right ptbg, since it provides the right to inform just to spanish citizens who have an electronic id and a card reader. here we find a clear situation of informative discrimination or digital divide between those who have or do not have the possibility to acquire these mechanisms and to learn the knowledge necessary for their use. regarding that the state only releases information for the media and these are the only ones that broadcast it, an obvious assumption would be understood that much information would be left without being broadcast to free will of what the media considers necessary or not to do so in order to satisfy their duties and the popular interests. in addition, what information would be received if it is to be processed always by media always linked to opinions so that the quality and impartiality of the information would be battered? in our days fortunately the transparency of the administrations through their portals and other tics make the state provide information to all interested citizens without going through the media. with this new digital reality, it was not 10 years since the admired professor sánchez de diego (2008: 32), said: "recognition as a fundamental right (right of access to public information), if incardinated within the rights especially protected by the spanish constitution in articles 14 to 29, plus the objection of military conscience, will have a triple protection under article 53 of the constitution: its development must be carried out by means of a organic law that respects its essential content; its “amparo” before the ordinary courts by means of a procedure based on the principles of preference and summary and, as the case may be, through the “amparo” appeal before the constitutional court". this author, a member of this stage and inspiring for the writer, in his fierce defense of the iusfundamentalism of access which was based on the developed and consolidated structure in transparency, conscience, social demand and comparative law, later included reasons of digital access as another element of his defense. as we see, access to public information is not only constitutionalized as a fundamental right by the general international influence, and specifically european, nor for reasons of comparative influence of the states but by the juridical osmosis with other human and constitutional rights. the instrumental and necessary cooperation of the public information in order to activate the right of participation, petition or the freedoms of opinion and expression, derives from the convergence in common legal goods, admitting that this constitutional provision expressly refers to the legal configuration of the exercise of the right of access to archives and administrative records. regarding the relationship between the right of access to information and other rights as a reinforcement of the fundamentalist reason for access, we also have the consideration of torres manrique (2013: 8), who adds that "the right of access to information in conjunction with other human rights contributes to its effective exercise, as stated by the rapporteurship for freedom of expression within the scope of the inter-american commission on human rights in its report of the year 2002". in these terms, it is pointed out that "the right of access to public information has acquired a fundamental importance in the development of human rights, directly linked to other the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 133 manuel palomares herrera fundamental rights, such as the right of access to justice, the right to the truth, the right to make informed citizen decisions and policies, democratic development and transparency in public administration". following the fundamental reasons for human rights and the access to information, another humanistic foundation must be touched upon, derived from art. 24 ce, the right to the truth through access as the right of all persons arrested, convicted, prosecuted. if these persons, their “litisconsorts”, guarantors, their technical defense and representation cannot access files with the guarantee that this is a fundamental right, legal security is restricted to the procedural capacity of the party that requires such access, access to the truth, so that the right to judicial protection and self-defense will be vulnerable. it is necessary to mention especially the development achieved by the right to the truth7, as a right that emanates from the international law of human rights, and which nowadays acquires important attention, in direct and continuous relation with the access to public information. the development of the right of access to public information as a fundamental right and the recognition of the right to the truth now have solid foundations in international law and project significant legal consequences that contribute to the respect and full exercise of human rights and this has to be valued. romero silvera (2010: 159 et seq.) maintains this foundation also, stating that "the lack of information or disinformation by the state is an element that characterizes human rights violations, state terrorism and, above all, the crime of enforced disappearance, which in turn constitutes a form of psychic torture for the relatives of the victims”. this dependence fully implicates the state from which the judicial branch is born, which supervises the information that makes it possible to clarify or prevent a violation of human rights, and which therefore can conceal, reserve, manipulate or destroy it, without the victims being able to exercise their legitimate rights in judicial proceedings. mendel (2010: note 10) points out that without a state that "allows access to information to victims of human rights violations, corrupt and inefficient governments cannot be denounced". in addition, it is the state that has the obligation to protect individuals within its jurisdiction in the use and enjoyment of their human rights, which makes it essential to have access to public information that allows victims to exercise their rights –"right to know or the right to the truth" on a plane of minimum equality–. romero silvera (2010: 170) agrees that "in these cases the right of access to information transcends the scope that it has in itself and points to the instrumental or media dimension that is also attributed to it". in short, the right to the truth and the right to access and receive public information are two aspects of the same obligation and both are based on the development of the stage of fundamental access. in this criterion the inter-american commission has been sensitive to affirm that "the whole society has the inalienable right to know the truth of what happened, as well as the reasons and circumstances in 7 un commission on human rights, the administration of justice and human rights of detainees, the question of impunity for perpetrators of human rights violations, document. o.n.u. e / cn. 4 / sub. 2/1997/20 / rev. 1. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 134 consolidation of arguments in favor of the right of access to public information as a fundamental right which aberrant crimes came to be committed, in order to avoid that those facts happen again in the future".8 iii. the recent defense of the right of access to public information the defense of the nature of a right of access as a fundamental right is made from two positions, the first one from the link to other fundamental rights existing in the constitution, as we have developed in the previous section, and the second one by itself as an autonomous right. in this section we aim to consolidate positions, open new arguments and argue that our model allows the creation of fundamental rights without having to allude to the interpretation of other precepts. many who deny the right of access to public information as a fundamental right base their position in the fact that the art. 10.2 ce does not allow the creation of new fundamental rights; it is true, but they can be interpreted, so in the position by connection the scope of art. 20 ce regarding access can and should be interpreted, not to create a new right by connecting it with the citizen participation of art. 23 ce (although that too). the first position that defends the fundamental nature of access can be said to be born of the inadequate and insufficient relation of access with art. 105. b) ce, which reduces the effectiveness that the ltbg would have had if it had be related to art. 20 ce. the art. 105.b) ce is located in the fourth title of the constitution addressed to "government and administration"; however there are many more subjects involved the subjective scope of application of the art. 2 of the ltbg (casa real, foundations or mercantile companies with public participation). if we refer to the objective scope, art. 105. b) ce is still inappropriate since it focuses on "files and records" when the real object of the law is the "public information" that exists in many other places outside the files and records; indeed, the important thing is the content of the information no its continent. on the other hand and in relation with the guarantees for the citizen, it must be mentioned that the art. 105. b) ce is outside the protection that art. 53 ce offers in defense of the fundamental rights. so, it is evident that the power of protection would not have such outstanding jurisdiction as the constitutional one but, at first instance, that of administrative bodies such as the ctbg and, ultimately, the contentiousadministrative jurisdiction. if a legislative anchor is recognized in art. 20 ce it could be developed by an organic law (art. 81.1 ce) and would enjoy a constitutional guarantee for the "preference and summary" process mentioned in art. 53.2 ce. the recognition of the fundamental nature of the topic further clarifies the position of the right of access to the levels of recognition enjoyed by other rights such as that of privacy. an added value that this development would have is the extension of its advantages to the questions of transparency and good governance giving meaning to 8 oas, iachr, annual report of the inter-american commission on human rights 1985-1986, chapter v, available at: http://www.cidh.org/annualrep/85.86span/indice.htm the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 135 manuel palomares herrera other norms that regulate these aspects along with access. this can be achieved through an organic law that develops a fundamental right. in relation to comparative law, many reasons for influence have been studied and offered, from european states and international organizations, which push to locate the relation of the right of access in the right to information, according to art. 10.2 ce. i will mention that the international covenant on civil and political rights in its art. 19 refers to freedom of opinion and expression, however, the human rights committee itself in 2011 clearly established that art. 19 sets out a right of access to information held by public bodies. it is again recognized there that under art. 13 of the international covenant of san josé de costa rica, freedom of expression protects the right of access to public information, since in order to have a free public opinion, it is necessary for citizens to have direct and unrestricted access to the information that is in the hands of the public authorities another suitable link, besides art. 20 ce, which allow the naturalization of access as fundamental right is art. 18.4 ce, a provision that determines the computer regulation in terms of honor, privacy and full exercise of rights –although the article, due to the context of the ce promulgation, does not regulate the right of access to the internet or to computerized data–. an example is the portuguese model, a precedent of rigorous regulation of the right of access through the constitution which in its art. 35 under the rubric "use of information technology" reads: "1. all citizens have the right to access computerized data concerning them, and may require their rectification and updating, as well as the right to know the purpose for which they are intended, in the terms established by law. 2. the law defines the concept of personal data as well as the conditions applicable to its automated processing, connection, transmission and use, and guarantees its protection, especially through an independent administrative entity ... ". if the development of tics and their generalization in society was a fact of transversality that served to develop a fundamental right that currently has great roots in citizenship, the same is true for openness and transparency. they are two elements that, as the digital age expands, are transversalized and reach all spheres. in the second criterion of defense, the creation of fundamental rights is based on the fact that they are not numerus clausus; in fact in spain some have already been created –for example, the right to the protection of personal data had an initial development to the lopd in the famous 1992 organic law regulating the automatic processing of personal data. the same jurisdictional authority in the constitutional order has developed other fundamental rights such as the right to the creation of means of communication and to exercise the "right to manage and exploit information” (in particular stc 12/1982 of 31 march9). 9 boe num. 95, of 21 april 1982 available at: http://hj.tribunalconstitucional.es/es/resolucion/show/54 the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 136 consolidation of arguments in favor of the right of access to public information as a fundamental right entering into criteria, if a fundamental right is considered as such is to the extent that it can provide measures of integral protection of the person, according to carbonell (2006: 4), the preservation of basic goods necessary to be able to develop a dignified life. the author agrees with this reasoning, as contrasted with the current model of dignified life, that it is unimaginable the dignity of opacity, parsimony and absence of administrative light. the attack on the fundamental right of access from the beginning is very interesting since it is as simple and complex as the study the theory of fundamental rights and line by line contrasts its extrapolation to the right of access to information from which he turns out that all the premises can be adjusted. carbonell (2006: 4) wrote that "when we talk about fundamental rights we are talking about protecting the most vital interests of all people, regardless of their personal tastes, their preferences or any other circumstance that may characterize their existence. that is why it can be said that fundamental rights must be universal because they protect goods with which every person must contact, regardless of where they are born, their income level or their physical characteristics". iv. conclusion the law 19/2013 seeks to fill a legal void that existed. however in practice it is a text which should be improved because it fails to categorize the right to public information within the fundamental rights nor does it reach the international standards set by numerous international courts and declarations, a conclusion based on the study of comparative law. in view of the above, it can be affirmed first and foremost that in our country there is a doctrinal interest in the field of access to public information resulting from the mainstreaming of this right in all fields of law. we can see that it also strengthens the ground that the constitutional right of access to information as instrumental and it is considered to be part of the additional content of the fundamental right to receive truthful information by any means of dissemination contemplated in art. 20.1.d) ce, since it is configured as a variant modality in the receipt of specific information, constituting the public administration as the source of dissemination of information of general interest. the existing dispute in the interpretation about the nature of the right of access to public information is referred and revolves around two main lines: that of linking the right of access to an already existing fundamental right or positioning it as a fundamental right autonomous and independent of new creation. there are authors who in this regard find this possible, supported by international influence and other authors who rely on constitutional rules to close the list of rights to those already enumerated. two new approaches are offered that should be considered in the near future to reform the constitution and strengthen the status of the citizen and resemble the countries in the environment in which we live, in addition to complying with international premises. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 137 manuel palomares herrera references alexy, r. (1993). teoría de los derechos fundamentales, madrid: centro de estudios constitucionales. álvarez rico, m. (1979). “el derecho de acceso a los documentos administrativos”, documentación administrativa, n. 183. carbonell sánchez, m. (2006). “el derecho de acceso a la información como derecho fundamental”, in democracia, transparencia y constitución: propuestas para un debate necesario, méxico: unam. cotino hueso, l. (2005). “el nuevo derecho fundamental europeo al acceso a los documentos, transparencia e información pública”, in homenaje a d. íñigo cavero lataillade, valencia: tirant lo blanch, pp. 725-753. desantes guanter, j. (1987). teoría y régimen jurídico de la documentación, madrid: eudema. embid irujo, a. (1994). el ciudadano y la administración, madrid: instituto nacional de la administración pública. fernández ramos, s. (1997). el derecho de acceso a los documentos administrativos, madrid: marcial pons. guichot reina, e. (2003). “el nuevo derecho europeo de acceso a la información pública”, revista de administración pública, centro de estudios políticos y constitucionales de madrid, n. 160. guichot reina, e. (2011). “transparencia y acceso a la información pública en españa: análisis y propuestas legislativas. documentos de trabajo”, laboratorio de alternativas, n. 170, 2011. work paper 170. mendel, t. (2003). “libertad de información: derecho humano protegido internacionalmente”, derecho comparado de la información, n.. 1. mestre delgado, j. (1998). el derecho de acceso a los archivos y registros administrativos. análisis del artículo 105.b) de la constitución, madrid: civitas. pomed sánchez, l. (1989). el derecho de acceso de los ciudadanos a los archivos y registros administrativos, madrid: inap. ridao martín, j. (2014). “la regulación de la transparencia y del acceso a la información pública en la esfera autonómica. un estudio comparado”, revista general derecho constitucional, n. 19. romero silvera, g. (2010). “implicaciones jurídicas del desarrollo del derecho de acceso a la información pública en el marco del derecho a la libertad de expresión y los derechos humanos”, american university international law review, 26 nn. 1. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 138 consolidation of arguments in favor of the right of access to public information as a fundamental right ruiz ruiz, r., del real alcalá, a., ansuátegui roig, f., lópez garcía, j. (2005). derechos fundamentales, valores y multiculturalismo, madrid: dykinson. ruiz-rico ruiz, c. (2014). “breves consideraciones jurídicas en torno a la reciente ley 19/2013, 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno”, boletín mexicano de derecho comparado, n. 140. sánchez de diego fernández de la riva, m. (2008). un derecho fundamental a acceder a la información pública, el derecho de acceso a la información pública, actas del seminario internacional complutense, madrid: facultad de ciencias de la información, universidad complutense de madrid. torres manrique, f. (2013). una mirada crítica a los derechos a la transparencia, información pública y rendición de cuentas, lima: derecho y cambio social. villaverde menéndez, i. (1993). “derecho a ser informado y el artículo 20.1 de la constitución española, estudios de derecho público”, in homenaje a ignacio de otto, oviedo: universidad de oviedo, pp. 545-581. the age of human rights journal, 8 (june 2017) pp. 126-139 issn: 2340-9592 doi: 10.17561/tahrj.n8.6 139 ii. considerations and postures from the spanish doctrine iii. the recent defense of the right of access to public information iv. conclusion references the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 111 the right to secession in the framework of liberal democracies and the legitimacy of a unilateral declaration. the case of catalonia joan ridao martín 1 abstract: the spanish constitution proclaims spanish unity to be indissoluble and, therefore, does not recognize the right to secession. however, this prevision could be reformed, even if it involves rather complicated processes. all said, it is good to bear in mind that different internal and international jurisdictions have recognized that national communities have a right to decide their political future collectively; including secession, understood to be a political aspiration, protected by the democratic principle of freedom of speech, and the right to participate can direct the modification of the constitutional order of a state, in a way that is legal and agreeable to all involved. however, there are cases of national communities that do not recognise that right, or the parent nation shows no desire to negotiate the terms of an improved accommodation of their political status, or allow a referendum to be held for this effect. in these cases, the recent practice of some states as well as comparative law, show the viability, under certain conditions, of a unilateral declaration of independence. keywords: secession, unilateral declaration of independence, self-determination. summary: i. introduction: the right to secession today; ii. the situation in spain and the case of catalonia; ii.1. spanish constitutional order in the light of the recent judgment 42/2014 of the spanish constitutional court; ii.2. alternatives in case it is blocked; iii. the unilateral declaration of independence as an alternative to the non-holding of a referendum in catalonia; iii.1. international law in the case of the unilateral declaration of independence in kosovo; iii.2. the european union when facing a unilateral declaration of independence: a legal and political interpretation of the treaties; iv. casuistry of the unilateral declaration of independence; iv.1. the case of the baltic republics and ukraine; iv.2. kosovo; iv.3. slovenia and macedonia; iv.4. montenegro and bosnia and herzegovina; v. the viability of a unilateral declaration of independence in the spanish context. i. introduction: the right to secession today it is known that the international law does not consider secession as a right (musgrave, 1997: 210) 2 . on the contrary, it establishes the principle of territorial integrity of the states on the basis that the international community is made up by the states, which, 1 tenured professor, certified in constitutional law, university of barcelona (jridao@ub.edu). 2 according to t. musgrave, «[s]ecession is a domestic question and, therefore, a completely neutral act in terms of international law. besides, since it is not considered within the jurisdiction of international laws, not just any attempt of secession entails an act of self-determination in juridical terms. even when consequences for international law are derived, with the emergence of a new state, the act of secession itself has a rather political and not juridical nature» (1997: 210). the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 112 logically, are not only the source but also the direct target of the international law 3 . however, as it is also broadly known, it acknowledges the right to self-determination (external or the right to secession), linked, as has been said, to «oppressed and colonized communities», although it is not specified either in the charter of the united nations from 1945 (art. 1.2, 55 and 76) 4 , nor in the international covenants of civil and political rights and economic, social and cultural rights (new york agreements from 1966) 5 , or in each of the resolutions of the general assembly (gaun) which deal with the issue: 1514 (xv assembly) 6 and 2625 (xxv assembly). the breakup of the central european empires, the implosion of the old ussr and the beginning of the processes of decolonization, especially in the african continent, lead international law to accept the creation of new states, already in the first half of last century, with their own identity or national signs. in this way, it legitimized the breakup of the territorial integrity of the original states. however, this right has been progressively more closely associated to the rights of colonized or oppressed peoples. so, the secessionist claims of communities within liberal-democratic states with constitutions that respect their internal self-determination (cultural rights, language and minimal forms of selfgovernment, etc.) can hardly be justified in front of this classical right. this explains why many states have been generally reluctant to accept the secession of other states, even if they have sporadically accepted them in front of the eventuality of some of the breakup processes such as the one in the ussr or yugoslavia, or because of internal agreements such as the case of the czech republic or slovakia 7 . besides, it is 3 for the most unyielding doctrine, even «in its legal dimension it is evident that self-determination does not subsume today, and probably will not subsume in the future, a general right of secession for the infra-state groups. on the contrary, what can be concluded from the experience of these last years is that the international law is still hostile to secession, even in the colonial context […] unless the very exceptional theory of “remedy-secession” can be objectively applicable». (cristakis, 1999 : 617). for dieter murswiek, «the states with a longer history typically have greater stability, but this does not mean that they are not also the object of secession demands. many states, especially in the east, fear that the concession of autonomy to certain ethnic minorities might be the first step towards secession and the breaking up of the state. however, i am convinced of the opposite. autonomy is the best prevention against the demands of secession». (tomuschat, 1993: 39). 4 art. 1.2 of the charter from 26 june 1945 establishes that «[t]he purposes of the united nations are to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace». articles 55 and 76 are expressed in very similar terms. 5 international covenant on civil and political rights of the gaun, new york, 23 march 1976. resolution 2200a (xxi) of 16 december 1966. 6 resolution 1514 of the gaun about the independence to the countries and colonial communities, new york, 14 december 1960. in these lines, see margiotta, 2005: 89-209. 7 many events are closely related to the disappearance of great empires such as the austro-hungarian empire or the ottoman empire, after the great war, or the soviet empire at the end of 1980s. some states also had their origins in unusual national protests against the colonial authorities, such as the english, the french or the portuguese in the case of indochina or africa, after the second world war and until mid 1960s. in the context joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 113 obvious that one of the most renowned cases, the independence of kosovo (2008) does not make a traditional assumption of self-determination, as it took place outside a context of decolonization. the right to self-determination and the right to decide are not, in fact, equivalent terms. they were linked to one another originally, but this does not imply that they are conceptually the same thing. on the contrary, as has been seen, the right to selfdetermination in its external aspect is exercised by those communities which are internationally accepted, with equally acknowledged conflicts. 8 on the other hand, the right to decide, that could imply a territory’s secession, is not acknowledged by public international law, or by the internal legal system of most states 9 . however, it is known that the primary right theories 10 understand that secession is an inalienable right in all liberal democracy, independent of the treatment of the parent state towards the secessionist substate entity. plebiscite and democratic theories, based on the individual right for association, specifically confirm this possibility from a democratic principle point of view. this, together with the principle of federalism was decisive in the decision of the canadian supreme court regarding quebec 11 , and that, effectively, is leading the traditional constitutional repudiation of any attempt of secession to give way to at least a mutual obligation for all federated parties or those united by constitutional ties to negotiate the of liberal and pluralist democracies, the new states emerged as a result of social and ethnic conflicts. more remotely, we could mention the case of norway (1904) and ireland (1921) as well as some insular regions: cyprus and the isle of malta. finally, there were bursts of several movements of identity assertion of great intensity in plurinational states with a complex structure such as belgium, canada, the uk or spain. in all cases, it is a matter of states drawn together as a result of unions of crowns, religious wars or, as in the case of quebec, the great colonizing campaigns of the british. 8 as warned by e. milano, «the practices of the states and the international community in the post cold war era seem to have remodeled the nature and the effects of such a principle, from which one can mainly derive a right of the peoples to become independent from the authority of a foreign, enemy or merely illegitimate government, as a way to reassert the requirement of respect to the principle of territorial integrity of the states» (2013a: 8). 9 no federal constitution, except for the case of art. 39 of the constitution of ethiopia from 1995 or article 60 of the federal constitution of serbia-montenegro from 2003 acknowledge the right to secession and they impose respect to the adopted agreements. see constitution of ethiopia (constitution of the federal democratic republic of ethiopia, 1995). 10 in this regard see roepstorff, 2013. 11 the opinion of the supreme court of canada [reference by the governor-general concerning certain questions relating to the secession of quebec from canada (reference re secession of quebec, (1998) 2 scr 217] came to solve a double question raised by the government canadian federal: «behold international law the right to unilaterally declare independence of quebec from canada by the national assembly, parliament or the government of quebec»; and in the same sense, «[t] here is one right to self-determination under international law that grants to the national assembly, parliament or the government of quebec the right to unilaterally declare independence of quebec from canada?». the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 114 needed changes to grant those wishes. this has been reinforced by the fact that referendums or other types of popular consultations are common practice in liberal democracies. it is also good to remember that, on an international scale, the democratic principle is incorporated in various relevant instruments, like the universal declaration of human rights from 1948, which establishes «the will of the people shall be the basis of the authority of government» (art. 21.3) 12 . at a european level, there have also been different reformations of founding treaties that reinforce the commitment of respect for human rights and basic freedoms (charter of fundamental rights, eu) 13 . even at an internal state level, in most cases, once a community’s democratic will to peacefully become a state in its own right has been established, this will is given the same importance as the provisions of the constitutional order of the parent state, even if it does not allow secession or simply does not provide for it, as in the case of quebec or scotland, that we will analyse in the following pages. it is undeniable that the ruling of the canadian supreme court regarding the secession of quebec in august 1998; the ruling of the international court of justice regarding kosovo; the agreements between the british and scottish governments regarding the scottish referendum; or the ruling of the commission of venice from the council of europe regarding the montenegro referendum, represent an emerging set of guidelines or rules that control the exercise of the right to decide everything, although not legislated by international law or the internal law of each state, putting to one side the motives behind the secession, seeing as these are understood to be fruit of «the complexity of different political realities» 14 , covering the democratic principle, the still well-known doctrine of effectiveness, as is seen in the fact that 69 members of the united nations acknowledged kosovo as an independent state, even if serbia did not accept its existence and keeps claiming its territorial integrity 15 . 12 universal declaration of human rights 207 a (iii) by the general assembly of the united nations. paris, the 10th of december 1948 http://www.un.org/es/documents/udhr/ [visited: 25th of october 2014] 13 charter of fundamental rights of the european union, nice, 7th of december 2000. http://www.europarl.europa.eu/charter/pdf_es.pdf [visited: 25th of october 2014] 14 for a general overview of the case of kosovo, see m. arcari; l. balmond: «questions de droit international autour de l’avis consultative de la cour internationale de justice – international law issues arising from the international court of justice advisory opinion on kosovo», l. balmond; m. arcari; e. milano; m. pertile; j. martin; p. palchetti; w. czaplinski; m. vitucci; and a. tancredi: declarations of independence and territorial integrity in general international law: some reflections in light of the court’s advisory opinion, giuffré, 2011, pp. 59-90; d. thürer andt. burri, «self-determination», max planck encyclopedia of public international law, oxford public international law, oxford university press, 2013; and e. milano, formazione dello stato e processi di state-building nel diritto internazionale. kosovo 1999-2013, napoli, editoriale scientifica, 2013b. 15 in fact, even though we will discuss the case of kosovo further on, we will state now that when this old serbian province made a unilateral declaration of independence, the eu immediately adopted a joint resolution in which it qualified it as a ”unique case”, leaving it up to each state whether they accepted it or not. most states, with germany, france and the united kingdom at the forefront, did so. this wide international support was decisive as that same year, the general assembly of the united nations, agreed, as joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 115 therefore for the infra-state groups that aim at their independence or at a given political status, the question is either in the need to reach, and democratically express a wide majority for the separation (or the intended status) by means of the instruments of a negotiation which allows the corresponding reforms in the internal constitutional order, or else, in some extreme cases, a unilateral but legal decision, provided it gathers the support of a critical mass of states in the international community which is enough to make the declaration viable. ii. the situation in spain and the case of catalonia ii.1. spanish constitutional order in the light of the recent judgment 42/2014 of the spanish constitutional court as has been stated, the spanish constitution (sc) claims the indissoluble unity of the spanish nation and, consequently, it does not acknowledge the right to secession. the sentence 42/2014 from the spanish constitutional court (cc) 16 , regarding the «resolution 5/x from the parliament of catalonia, whereby the declaration of sovereignty and the right to decide of the catalan people is passed» declared that the acknowledgement that such a declaration made of the catalan people as a «legal and political sovereign subject» is contrary to articles 1.2 and 2 sc and articles 1 and 2.4 of the catalan statute of autonomy, and connected to these, contrary to articles 9.1 and 168 sc as well. in fact, on 21 january 2013 the catalan parliament passed the resolution 5/x 17 , previously known as «sovereignty declaration», which invoked the «democratic principle» 18 and abandoned the classical invocation of sovereignty of the right to selfdetermination (resolutions 1514-xv from 1960 and 2625-xxv from 1970 of the united nations), since they considered that this new right was only applicable in the case of the making up of an independent state ex novo, or in the case of secession of coloniallysubjugated communities, military-occupied nations or those communities which belong to a repressive state which violates human rights (art. 1.2 of the 1945 charter and art. 1.1 of the proposed by serbia, to transfer the matter to the international court of justice, if the declaration violated international law. presently the european commission itself is directly negotiating with the kosovar authorities regarding their future entry into the eu, after the european council decided in june 2013, to open negotiations to establish an agreement for stabilization and association. 16 stc 42/2014, 25th march 2014 boe (spanish official bulletin) number. 87, 10th of april 2014, pp. 77-99. 17 see for further information, vintró, j., 2013. 18 «[t]he catalan nation has, for reasons of democratic legitimacy, the nature of political and legal sovereign subject” [and (the) process of the exercise of the right to decide will be strictly democratic and will especially guarantee plurality and respect to all options by deliberation and dialogue within the catalan society, so that the pronouncement which will emerge as a result will be the majority expression of the popular will, which will be the essential guarantee of the right to decide». the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 116 international agreements on civil and political rights, or new york agreements, from 1966). what is relevant is that, even though the «sovereignty declaration» of the catalan parliament has been declared to be unconstitutional, sentence 42/2014 issued by the spanish constitutional court warned that there is no normative nucleus which is inaccessible to the procedures of a reform of the spanish constitution. besides, it acknowledges the right to decide as a political aspiration protected by the freedom of expression and by the right to participation in political issues established in the magna carta. for the spanish high court, this right to decide is not the right to self-determination and it has its own nominalization: it is not a conferring of sovereignty but the right of the citizens of catalonia to decide on their political future. for this, as preparation measures, it would be even possible to call a consultation or a referendum before the opening of a process of constitutional reform which could not lead to a reconsideration of the identity or the unity of the sovereign subject from the start or, even less, a reconsideration of the relationship which only the sovereign subject can establish between the state and the autonomous communities (nationalities or regions of spain). from this point, on the basis of the democratic principle of article 1 sc, and with a lack of limits to the constitutional reform, several directions can be found in the spanish legal system by means of which, apart from the constitutional revision via article 168 sc 19 , a declaration may be allowed with a consultative nature regarding the beginning of this process, and especially the consultative referendums of article 92 sc 20 , which have a state scope, but which could be applied to the autonomous communities; the delegation of the state competencies to allow referendums of article 149.1.32 sc, in line with the events in scotland with the order of council 21 which allowed a scottish referendum on 18 september 2014 by the edinburgh authorities; and the referendums and the non referendary consultations of an autonomous or regional scope. doubtlessly, these examples represent an appeal to the possibility that the members of a political community could define their own legal and political framework on the basis of clear and freely formed majorities, in accordance with the doctrine emanated from the canadian supreme court in the case of quebec. 19 «1. when a total revision of the constitution is proposed, or a partial revision thereof, affecting the preliminary title, chapter ii, section 1 of title i, or title ii, the principle shall be approved by a two-thirds majority of the members of each chamber, and the parliament shall immediately be dissolved. 2. the chambers elected must ratify the decision and proceed to examine the new constitutional text, which must be approved by a two-thirds majority of the members of both chambers. 3. once the amendment has been passed by the parliament, it shall be submitted to ratification by referendum». 20 «1. political decisions of special importance may be submitted for a consultative referendum of all the citizens. 2. the referendum shall be convoked by the king at the proposal of the president of the government after previous authorization by the house of representatives. 3. an organic law shall regulate the conditions and the procedure of the different kinds of referendums provided for in this constitution». 21 see www.legislation.gov.uk/uksi/2013/242/pdfs/uksi_20130242_en.pdf [visited: 15th of november 2014] http://www.legislation.gov.uk/uksi/2013/242/pdfs/uksi_20130242_en.pdf joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 117 so, while the sentence asserts that «in the constitutional framework, an autonomous community cannot unilaterally call a referendum of self-determination to decide on their integration in spain», it also explicitly states the possibility of a «constitutional interpretation» of the so-called right to decide, understood as «a political aspiration which is reached by means of a process which comes to terms with the constitutional legality», respectful to the principles of «democratic legitimacy», «pluralism» and «legality», and explicitly put forward in the declaration of sovereignty of the catalan parliament, closely connected to the right to decide. this is, without a doubt, the most innovating and important aspect of the sentence, since the court acknowledges the right to decide as a right which can protect the execution of activities focused on «preparing» and «defending» the separation of catalonia, and to urge the «effective consecution» of this objective in the framework of the process of the reform of the constitution. regarding this point, the sentence takes the premise, which is already stated in many other resolutions, that the spanish constitutional legislation does not meet a model of «activist democracy» and that, consequently, there is room for any kind of conception «which aims at modifying the foundations of the constitutional order» such as «the will to change the legal status» of an autonomous community. therefore, according to the court, the right to decide is not a right to self-determination, since it has its own character. it represents a legitimate political aspiration protected by the freedom of expression and, in broader terms, by the right to participate in political issues. it is worth noting that, furthermore, the sentence does not restrict or limit the right to decide just to the possibility to motivate a process of constitutional reform but, for the first time, it explicitly states that the public powers of an autonomous community can legitimately carry out activities aimed at «preparing and defending» the political objective which they consider convenient. ii.2. alternatives in case it is blocked notwithstanding what has already been stated, the spanish government keeps an unyielding attitude in front of all these possibilities and it puts forward that the subject matter of the catalan consultation clashes with the fact that the constitution claims the unity of the spanish nation, and that the only sovereign subject is the whole of the spanish people (art. 1.2 and 2 sc). this means that, in catalonia, the scenario of the future relationship with the spanish state has changed in a very short period of time. and even more so if you also take into account that, before the catalan institutions openly contemplated holding a consultation, there was an attempt to agree a new statute of autonomy, passed by the catalan parliament in 2005 with a wide political and citizen support, aimed at institutionalizing a status of bilateralism between catalonia and the state. however, it was frustrated during its development, first by the spanish parliament and later, and with final the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 118 consequences, with sentence 31/2010 of the constitutional court 22 , from the 28 th of june, that had already been operationally deactivated by a declaration of unconstitutionality or the reinterpretation of a large part of its precepts, regarding key aspects such as financing, competencies or considering catalonia as a nation. this sentence led most of the catalan society to draw two conclusions: the evidence of the successful actions to politically deactivate the statute by the powers of the state and, at the same time, a great disappointment –politically speakingtowards the spanish state in terms of coming to a joint agreement. this second conclusion, of great importance, forced a change in the positions of traditional political catalanism which, from mid-nineteenth century, had accepted an autonomous fitting of catalonia within spain which respected its national, linguistic and cultural singularity 23 to a bet by the citizens, which until then was minority-but growing-, to become a singular state. precisely, the governability agreement subscribed by convergència i unió (ciu) (the party of president artur mas) and esquerra republicana de catalunya (erc) (the center-left party, historically for independence) after the last autonomic election, on december 19, 2012 «agreement for the national transition and to guarantee the parliamentary stability of the catalan government» explicitly added the commitment of the two parties to support every kind of executive an parliamentary actions with the aim of calling for a consultation to the catalan citizens (finally the 9 th of november 2014) with a clear double question: «do you want catalonia to be a state?», and if so, «do you want this state to be independent?». it is, without a doubt a broad political agreement as, apart from the two parties mentioned above, it also included iniciativa per catalunya-esquerra unida i alternativa (icv. euia) and the candidatures d’unitat popular (cup), covering catalonia’s whole political spectrum, from christian democrats to the alternative left. the consultation to be held on november 9, 2014, accepted by the majority of the catalan parliamentary forces and with a wide support of the public opinion 24 , would be regulated by a catalan law on consultations 25 , which will be presumably passed by the 22 boe num. 172, from the 16th of july 2010 pp. 1491 23 shortly after this sentence, a massive demonstration took place, which went beyond the citizens’ claim against the decision of the constitutional court, since its motto was «we are a nation, we want to decide». two years later, after the massive demonstration on september 11, 2012 (national day of catalonia) for the independence of catalonia, and after the results of the autonomic elections held on november 25, 2012, which granted a majority of pro-sovereignty and for the right to decide at the parliament, there were different resolutions of the catalan chamber for the «right to decide» and for the celebration of a popular consultation within the legal framework regarding the political future of catalonia and its relationship with spain (742/ix, 5/x i 323/x). 24 information about the survey published by the center of opinion studies of the generalitat de catalunya on march 18, 2014 ˂http://www.ara.cat/politica/sondeig-ceo-independencia_0_1103889719.html˃ [visited on march 19, 2014] 25 dogc (official newspaper of the generalitat de catalunya) number 6715, 27th of september 2014, pp. 119. http://www.ara.cat/politica/sondeig-ceo-independencia_0_1103889719.html joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 119 catalan parliament after the summer. law 10/2014 from the 26th of september, on popular non-referendum consultations and other forms of citizen participation, anticipated the organization by the generalitat de catalunya of popular consultations for political questions of special importance. but, as the spanish government has repeatedly announced, both this law and the decree to call the consultation itself, which will be signed by the president of the generalitat of catalunya, would be appealed in front of the court, with the intention to declare them unconstitutional after having stopped them. the predetermination which would claim that the spanish constitution democratically consecrates the united nature of the spanish nation, as well as the united sovereignty of the spanish people regarding a process based on popular will, would be a positioning which would deny the chance to know the real will of a nation, in this case the catalan nation, to initiate a political process from a popular consultation, a democratic process that has been indeed considered in canada or the united kingdom, with the referendum on the independence of scotland formally called on september 18, 2014. on the 30th of september, the constitutional court accepted an appeal of unconstitutionality presented by the spanish government against the law and the decree for a summons to the consultation on the 9 th of november. which is why the summons was automatically suspended, as a precaution, in agreement with article 161, 2 sc. in spite of this, both the catalan government and the parties that were supporting the consultation held preparatory meetings, and even selected in parliament the members who would make up the controlling commission that should exercise electoral authority over the process, according to the previsions under the suspended law. as a token of support for the catalan institutional world for the consultation, on the 3rd of october some 800 mayors delivered to the headquarters of the catalan government the agreements from their municipal plenary sessions supporting the summons to the consultation. with the argument that, in the end, the consultation would not be held, even though no secondary legal measures had been made for the provisional suspension by the constitutional court, the president of the generalitat de catalunya, decided on the 14th of october to cancel it and substitute it with a so-called «participative process», that would take place under the protection of the statutory powers of the generalitat, keeping the same date and the double question of the consultation that had been dismissed. specifically, this act was based, to start with, on article 122 of the statute of autonomy, even though the legality had to be judged according to the doctrine of the cc, regarding autonomic and local referendums, upon which it has had the chance to pass sentence in various occasions, and was collected in the successive appeals of unconstitutionality made by the catalan government. therefore, the «process» is protected, according to the catalan government, by the provisions of title iii of the same catalan law 10/2014. these precepts that regulate surveys, public audiences, participative forums, and other processes with citizen participation, are currently in force, they have not been impugned by the govern nor has the state council reported in favour of doing so (sentence 964/2014 from the 28th of september). the cc has not made even a provisional ruling regarding said «processes». the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 120 once again, the spanish government impugned the «actions of the generalitat» related to the participative process and both the impugnation and the previous sentence of the state council 1092/2014 from the 30th of october 2014, were based on the fact that these actions were legal formal acts, liable to impugnation under title v of the cc’s organic law, understating that it was actually a «masked and covered» consultation. unlike the appeal against law 4/2010, the decision was not immediate; it took two weeks, during which the spanish government initially chose to congratulate itself for cancelling the consultation, and then went on to discredit the new summons and directly oppose it, presenting it as a mere re-edition of the cancelled summons. subsequently, the constitutional court also provisionally suspended this «process». however, both the catalan government and the group of political and citizen forces in favour of the consultation on the 9th of november, carried on with the preparations, having understood, that the cc had once again suspended a consultation, but had said nothing regarding the «participative process.» supported by the generalitat, the process went ahead with the collaboration of 40.930 volunteers. the voting took place in 1.317 participation points all over catalonia, using many local venues as well as those belonging to the generalitat. the day went ahead with no remarkable incident and with the participation of 2.305.290 people, as well as the 14.000 catalan citizens living abroad that placed their ballots in one of the 19 participation points set up in the international headquarters of the generalitat 26 . in light of this, the state’s general attorney, after listening to the board of prosecutors and with the opposition of the attorney for the superior court of justice of catalonia, presented a lawsuit against the president of the generalitat, artur mas, the vice president of the catalan government, joana ortega and the catalan minister of education, irene rigau, who were accused of various crimes such as disobedience, perversion of justice, misuse of public resources and misappropriation of roles. iii. the unilateral declaration of independence as an alternative to the non-holding of a referendum in catalonia sometimes, regulations go beyond the legislator’s initial intentions. this would be the case of the provisions of international law in connection to the self-determination of the nations, which have occasionally found themselves in contexts which are very different from the decolonization phenomena to which they are associated. as we have already analyzed, kosovo’s udi, on 7 february 2008, is perhaps the most recent and clearest example of a presumably ultra-active normative if we consider what the ruling of the 26 despite all the determining factors, the level of participation was similar, if slightly lower, to that of the 2014 european parliamentary elections. if nothing else, the vote recount offered a vision of the strong mobilization of the independent vote, with 80.76% of the answers in favour of an independent catalan state. joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 121 international court of justice, from 22 july 2010 27 , states (see sect. 3). in fact, in this advisory opinion, the icj concluded that the udi proclaimed by the kosovan assembly was neither opposed to general international law nor to resolution 1244 (1999) of the security council. for this reason, this is a precedent of unquestionable importance, despite the critical attitude of the ius-internationalist doctrine and that of some states towards the position of the icj. this can be explained because, as we have also seen, the position of the icj, which would declare the independence of kosovo as non-opposed to international law, dismisses the most orthodox thesis regarding the principle of self-determination (see section 1) which distinguishes between the assumptions of external and internal self-determination. thus, it keeps the cases of external self-determination for classical colonial situations or for sudden similar situations, and relates internal self-determination to the cases in which the citizens of a nation exercise their right by means of their pronouncement in elections and internal consultations. if we consider this thesis, the modality of external self-determination could not be based on the same grounds as those cases of colonial situations inside a formal democracy. a totally different case is the udi proclaimed by the institutions of crimea, because of its later annexation to russia. the secession of this peninsula on the shore of the black sea started on february 27, 2014, when russian soldiers, who initially tried to hide their nationality, occupied the airports and buildings of the capital city, simferopol, with the support of the pro-russian militia. in this situation, a few days later, on march 16, a referendum took place which did not meet the minimum acceptable requirements for electoral processes in europe, since its aim was to legitimate a decision taken by the russian authorities and exercised under conditions of forced subjugation. the «yes» obtained 96.77% of the votes. after the proclamation of the results, on march 17, the authorities of crimea gave moscow the formal petition to integrate their territory in the russian federation and the duma voted the annexation project on march 21. in spite of the undeniable historical, cultural and geostrategic bonds that this territory had with russia (with nearly 57% of russian speakers), the international community did not accept the results of the referendum, as they violated the constitution of ukraine and crimea, as well as international law. despite the differences, the russian authorities argued that the case was presumably analogous to the case of kosovo, and that the international community had reacted in an inequitable way in this case. nonetheless, the subsequent conflicts in the eastern area of ukraine have led to new international summits which, within diplomatic tensions, have translated into a tacit recognition of the annexation of crimea to russia 28 . 27 advisory opinion of the international court of justice in accordance with the udi regarding kosovo from july 26, 2010. available at: a: http://www.un.org/es/comun/docs/?symbol=a/64/881 [visited on february 3, 2014]. 28 bbc program on the summit between ukraine, russia and the usa in geneva on the east ukraine conflict. http://www.bbc.com/news/world-europe-27072351 http://www.un.org/es/comun/docs/?symbol=a/64/881 http://www.bbc.com/news/world-europe-27072351 the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 122 thus, if we observe any of the current member states of the eu, it is impossible to appreciate any situation of subjugation, exploitation or violation of the fundamental human rights regarding the sub-state entities that conform them or their citizens. this has a special significance because it means that, with higher or lower intensity, all the states in the eu guarantee the rights and freedom of their citizens with their internal laws, the eu law and international law. as we know, in general international law, it is also impossible to find any kind of explicit prevision that normatively allows the passing of a udi. which one is then the basis of secession or independence of those nations that are not entitled to the right of external self-determination? under which circumstances would international law allow a udi to be passed? iii.1. international law in the case of the unilateral declaration of independence in kosovo the international court of justice, in the above-mentioned advisory opinion of 22 july 2010 (under the title «accordance with international law of the unilateral declaration of independence in respect of kosovo» sections 79, 81 and 84) set a doctrine of general interest: no udi, whether proclaimed by the parliament or in a popular way, can count on the protection of international law, but it is not opposed to it [in the same way, resolution 1244 (1999) of the security council, was not opposed to any applicable regulation of international law]. moreover, the icj states that in order for any udi to be legitimate, it must be followed (or preceded, for that matter) by a ‘de facto situation’, in which the effective presence of the proper elements of a state and, in particular, the exercise of the sovereignty through concluding acts, can be proved. consequently, the global high court states that a udi which is proclaimed in territories in which the self-determination principle (external) is not applicable is not opposed to the basis of the principle of state territoriality. 29 these udis, added the court, are not forbidden if they do not entail any serious fault to general international law, especially to those issues of imperative nature (ius cogens), such as an illegal use of force (par.84). in other words, a udi cannot be considered opposed to international law if it is the result of a democratic pronouncement (par.79), carried out in a peaceful context, without the use of force or violence. in this sense, the hague court specified that, in those cases where a udi had been declared in breach of international law (e.g. south rhodesia, north cyprus or the srpska republic), the precise contravention of the international law order had dealt with the illegal use of force (par. 81) 30 . the guarantee of the territorial 29 in particular, the icj states that, in the case of declarations of independence outside the exercise of the right to self-determination, the practice of the states “does not point to the emergence of a new rule in international law which prohibits the making of a declaration of independence in such cases” (section. 79). 30 this clarification was done because several members of the procedure alleged that the principle of territorial integrity had recently been applied in several secessionist conflicts such as the ones in georgia and abkhazia and south ossetia, azerbaijan/nagorno-karabakh. furthermore, the security council had passed joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 123 integrity of the state is a guarantee that corresponds to the states, which cannot violate it. but the prohibition of the use of force, or the threat alone of using it, constitutes an imperative obligation of general nature and, for this reason, it becomes applicable to substate entities. 31 therefore, it can be seen that the court disregarded the internal constitutional order of serbia in that particular case. it is not in vain that art. 8 of the serbian charter explicitly banned that possibility: «the serbian territory is inseparable and indivisible». however, the internal constitution had already been partially replaced by an interim regime of selfgovernment set by the united nations according to resolution 1244 of the security council (1999) 32 . for this reason, the icj assumed that the authors of the udi (the stunning majority of the members of the kosovan parliament and its president) had not violated the serbian constitutional frame given the fact that, when they formally declared their independence, they were not acting as bodies of entities of provisional self-government, but as a real constitutive powers, according to the capacity conferred by their condition of legitimate representatives of the kosovo nation. after all, the procedure adopted by the kosovan representatives resulted fully democratically legitimated as it had been their own «decision», making the democratic principle prevail over the principle of constitutionality. iii.2. the european union when facing a unilateral declaration of independence: a legal and political interpretation of the treaties at this point, we must briefly revise the position stated by the eu regarding both primary and derived law on the secession and independence of territories of its member states. in fact, as it has been explicitly stated, the only precept which has any connection to this question is article 4.2 teu, which states that the eu should respect the essential functions of its member states, amongst which is the one to guarantee their territorial integrity. but essentially, this precept proclaims the non-interference of the european several resolutions condemning some given declarations of independence: south rhodesia [216 (1965) and 217 (1965)] septentrional cyprus [541 (1983)] and the srpska republic [787 (1992)]. indeed, the un does not normally intervene in the authorization of the secession of groups that are not homogeneous nationcommunities strictly speaking (e.g, the secession of the bosnian-serbians and the croats from bosnia). 31 in several international agreements, prescriptions addressed to sub-state entities regarding the respect of territorial integrity [art.5 of the convention for the protection of national minorities (cpnm); and art. 46 of the international declaration of the rights of indigenous people] constitute a prohibition to sub-state entities to declare their independence. respect for territorial integrity must not be understood separately from the object of these rules, addressed to subjects to which this regulation does not acknowledge legal personality (speakers of minority languages, national minorities or indigenous people). 32 when the udi was proclaimed, the legal framework of kosovo was regulated by the resolution of the security council of the un 1244 (1999) which basically contemplated the authorization of the creation of international military presence (kfor) to guarantee peace and demilitarization, as well as civil international presence (interim administration mission called unmik). this is what established the frame for the administration of kosovo, by using a provisional system of self-government and autonomy. the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 124 union in a range of affairs. nothing is said about the secession or independence of territories of a state, or about the consequences that this secession could have for the residual state or for the new states which emerged from the separation, or about the consequences of a phenomenon of this nature for the union itself. we must conclude, therefore, that if the consequences of these facts are not contemplated in treaties, the criteria used in order to establish whether dissident territories from a member state should remain outside the eu have been simply criteria of authority. what is more, after having seen some precedents, what happened at one point with the fusion of the two germanys is an indicator of the solutions that the european union can assume beyond what is contemplated in treaties. recent mutations of the european union law are a good example of «the imaginative solutions that could be given to the new challenges beyond the union law» 33 . apart from this, it is needless to say that, in the case of isolated secessions, it would not only be necessary to consider how the new state would be, but also the consequent situation for the parent state. if we conclude that the secessions of territories of a member state are indeed a rupture from the original state, which results in the creation of two new states (or several ones), the states resulting from this process could be considered heirs of the original state. this would necessarily imply that the two states should ask for their attachment to the eu, as well as to the hundreds of international organizations to which they previously belonged. all of this without forgetting the fact that it seems plausible that the two states could reach a previous agreement, with the unanimous acceptance of its terms by the rest of the states, especially in the case of the eu, which would consist in asking for the continuity of both political units in the international organizations of which they were part originally, although they would have to adjust the conditions of their membership and participation to their new reality. this procedure seems complex, but it is not impossible. this way, after the secession of a territory of a member state, the predecessor state would still be the owner of the rights acquired by the original state in the international community, that is, within the european union and the international organizations. according to the mainstream position of the doctrine and the international praxis, the state resulting from the secession would be, to all effects, a new state that should ask for its incorporation or continuity in the european union and the rest of international organizations, unless we were talking about a state that chooses to remain absolutely isolated. nonetheless, the problems that emerge for the parent state in this case do not have an easy solution. apart from the hardly comparable precedents of greenland and algeria, which will be later examined, in the spanish case, for example, there would be a remarkable decrease of its population, of its internal gross product and its territory. if we 33 see enrique linde, 2013: 29. joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 125 were, for example, in front of a supposed secession of catalonia, we would be talking about the decrease of 16.5% of the spanish population (7.5 million inhabitants), 18.5% of igp (around 200,000 million euros) and 6.3% of its territory (around 32,000 square kilometers), with a tax contribution far beyond its percentage of population, since catalonia represents 24% of the total tax income in spain 34 . in terms of the eu, it would be beyond complicated for spain to keep the same number of representatives in the european parliament, votes in the council, or the same contribution to communal expenses or to the european central bank. actually, and this is what is relevant, this casuistry is not contemplated and it would result in an essential reform of the union treaties and the derived law, in order to make the necessary adjustments or to adopt political agreements, this time unanimously, to reproduce familiar patterns, such as the one regarding the above-mentioned german reunification, or even the cases of greenland-denmark or france-algeria. in this sense, it is necessary to highlight that the lisbon treaty, with effects on 1 december 2009, contemplates the voluntary withdrawal of a member state from the union for the first time. but previous to the lisbon treaties there were not any legal procedures that regulated this eventuality 35 . however, in that case, the non-contemplation of a legal procedure of withdrawal in the treaties was not considered important enough to avoid that a state could decide on its continuity in the european union. that was the case of greenland, which left in 1985 due to a dispute regarding fishing rights. as a denmark territory, this island joined the economic european union (eeu) in 1973, although a referendum showed they were against it. consequently, in a referendum held in 1982, the option to abandon the eu won, with a slight difference of 52% of the votes 36 . nevertheless, it is still regulated by the eu treaties through the association of the overseas countries and territories. on the other hand, when algeria stopped being a french colony in 1962, it also abandoned the eu. precisely, as an answer to a question asked in 2004 by the welsh socialist representative eluned morgan to the college of european commissioners regarding the usefulness of the algerian precedent in the event of independence of a european region, romano prodi, president of the college of commissioners at that time, answered: «a new independent region, because of its independence, would become a third state in connection to the european union and, from the day of its independence, [treaties] wouldn’t be of application in its territory» 37 . what is relevant, nevertheless, is that the 34 a view on the tax effort in catalonia from a pro-sovereignty point of view. http://www.elpuntavui.cat/ma/article/4-economia/18-economia/595749-lendeutament-espanyol-ens-faralliures.html 35 see article 50 etu. 36 there have been speculations about the rejoining of greenland to the european union, as seen from the statements by the greenland prime minister reported on the danish newspaper jyllands-posten on january 4, 2007. 37 prodi added: «[according to] article 49 of the european union treaty, any european state which respects the principles referred to in article 6 of the eu treaty could apply for membership to the union.» http://www.elpuntavui.cat/ma/article/4-economia/18-economia/595749-lendeutament-espanyol-ens-fara-lliures.html http://www.elpuntavui.cat/ma/article/4-economia/18-economia/595749-lendeutament-espanyol-ens-fara-lliures.html the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 126 independence of algeria and its withdrawal from the eeu in 1962 did not have consequences for france, one of the six founding states. therefore, we can conclude that, in the event of the rupture of a member state resulting in two states (either if one has split from another or because of the emergence of two new states from an original one), the reform of the eu treaties is not essential to accommodate them to a new reality if there exists a political agreement, as shown by the algerian precedent. regarding the case of greenland, it must be highlighted that in the adaptation of the eu treaties, from 13 march 1984, where the withdrawal is articulated, there is no modification of the parent state, denmark. besides, greenland currently keeps an overseas territory status associated to the eu. indeed, from an institutional point of view, there were no changes either in the number of commissioners (two for france, one for denmark, with or without those territories) or in the assignation of seats in the european parliament (or parliamentary assembly, until 1979), which was not affected until the german reunification took place, when the parity of seats held by the five great states of the community/european union was broken. as additional considerations, and regarding the current situation (with the current teu and the euft, modified in lisbon), the european parliament cannot exceed 750 members and the president, and this is nowadays fixed, even if there were other incorporations (nevertheless, due to the recent incorporation of croatia, this has needed to be temporarily adjusted, but with no effects on the european election of may 2014).. last, with the present system of each state’s own resources (customs rights, 0.3% tax of the harmonized vat basis and resources based on a uniform percentage of the gross national income) there is not a direct dependence on fees or contributions by the states depending on their size in terms of territory or population. apart from the legal speculations, a different scenario would take place when a unanimous position, or even a majority one among the union states, was not reached to achieve this political agreement or to reform the treaties, in particular if most of the states were unwilling to confirm the pulling effect that this process could have within their respective states. in any case, all these precedents show that the union has always solved these issues politically, regardless of the strict content of the treaties. in addition, it must be taken into account that, as it has already been explained, article 49 teu contemplates that any european state which respects the values mentioned in article 2 of the same treaty and commits itself to promote them, could apply for membership to the union. iv. casuistry of the unilateral declaration of independence next, we will study ten recent cases in which a udi has been part of the successful process of secession or independence of a territory within the european continent. we will leave out, for now, the processes that have not yet received rulings (abkhazia, south joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 127 ossetia, or transnistria), or those that have taken place within the african continent (eritrea or south sudan). iv.1. the case of the baltic republics and ukraine in august 1989 around two million of estonians, latvians and lithuanians formed a human chain of more than 560 kilometers, from tallinn to vilnius, to ask for the independence of the baltic states. next, the independence of lithuania was unilaterally declared by its parliament, on 11 march 1990, after the pro-independence leader vytautas landsbergis, was elected president in the elections held in february 1990 (still as part of the ussr) in which the communist party was defeated by the reformation movement of lithuania, sajudis, who obtained 101 out of the 141 seats. after a failed soviet intervention (on 10 january 1991) a referendum was held, on 9 february 1991, in which the support to independence reached 90%, with a turnout of 84.43% of the census. the question, asked in lithuanian, russian and polish was: «do you want lithuania to be a new independent republic?». later, in august 1991, this new republic was recognized at an international level and, on 17 september of the same year it entered the united nations. once the constituent process had begun, the constitution was passed more than a year and a half after the udi proclamation (on 25 october 1992 to be precise) and it became effective on 11 november 1992. in estonia, it was initially a convention of representatives who proclaimed a unilateral declaration of independence in february 1990, on the basis of the tractu treaty which was signed on 2 february 1920 with the bolshevik russia. according to this treaty, the republic of estonia obtained international recognition and became a member of the league of nations on 1921. later, on the election of 8 may 1990, the pfe (popular front of estonia) and other pro-sovereignty groups conquered the parliament, and the nationalist leader, edgar savisaar, was elected president of the first government which had emerged from an election since 1940. nonetheless, it was not until august 1990 that the parliament formally proclaimed their independence, although moscow did not consider it valid. this udi was later ratified in a referendum on 3 march 1991. the turnout was 83% and the question was «do you want the restoration of sovereignty and the independence of the state of the republic of estonia?». the supporters of the «yes» obtained 78.6% of the votes, equivalent to 64.6% of the inhabitants with the right to vote, although no quorum of participation or minimum percentage to validate the «yes» had been previously defined. on 20 june 1992, a referendum ratified the fundamental law or constitution (based on the one from 1983) and a new parliament was elected (riigikogu). on 5 october, lennart meri, from the national coalition party pro-patria (ncpp) was elected president. two days later, the new constitution became effective. the constitution was passed on 28 june 1992, a year and a half after the referendum, and it became effective on 3 july of the same year. the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 128 in latvia, on the election of march 1990, the popular front obtained 131 seats in the supreme soviet (8 together with 55 of the pcus and 15 independents) which led to a udi on 4 may 1990, formally proclaimed as a «declaration of independence restoration». at the same time, it was decided to make the constitution of 1922 effective, as it had been abolished with the soviet invasion in 1940. on 3 march 1991, a public consultation took place. it had the nature of a referendum in order not to contravene the soviet legality, but to legitimate it at the same time. the formulation of the question was: «are you for the democratic and independent constitution of the state of the republic of latvia?». while there was a minimum turnout set on 50%, it reached 80%. the supporters of the «yes» were 73.7% (64.47% of the electoral census) and the supporters of the «no», 24.7%. the new constitution was passed on 15 february 1992, almost a year after the referendum, and became effective on 7 november, a year and five months after the udi. in ukraine, within the framework of the reforms started in 1985 by president mikhail gorbachov in the ussr, communists and nationalists ukrainians started the popular movement for perestroika in ukraine (rukh), which claimed a wider political and economic autonomy. in the legislative election of march 1990, the supreme soviet (parliament) unilaterally proclaimed the independence of the republic and, on 24 august 1991, the act or law of independence was passed, for which a referendum of ratification was called, held on 11 december 1992. in this referendum, the question was «are you for the act of proclamation of independence of ukraine?». the turnout was 84.18% and the supporters of the «yes» reached 90.2% 38 . at the same ceremony, leonid kravchuk, ex-first secretary of the kpu (communist party of ukraine) was elected president. at dawn on 28 june 1996, the parliament adopted a constitution which, according to the interpretation of the constitutional court, became effective at the same time as the result of the parliamentary election was made public (five years and eleven months after the udi). previously, on 8 june 1995, president leonid kuchman and spokesman oleksandr moroz, in the name of the parliament, had subscribed a provisional constitutional agreement whose validity was extended until the moment of the passing of the constitution. law num. 254/96-bp ratified the constitution, leaving the above-mentioned provisional constitutional agreement without effect. 38 paradoxically, the process was interrupted when, in march 1991, a referendum was held exclusively regarding the preservation of the unit of the republic within the ussr. it was won by the supporters of the «yes» (70.2%, with a turnout of 86.5%) who widely defeated the independence supporters. the difference in the results of the two referendums is explained with the loss of the soviet supremacy, as a result of the conspiracy carried out by members of the cpsu and the kgb, which contributed to the fall of president gorbachov. joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 129 iv.2. kosovo the independence of kosovo, province of serbia under international administration since 1999, was unilaterally declared by its assembly on 17 february 2008 39 , on the basis of a report and a program made by the special envoy of the united nations, matti ahtisaari. at the same time as the parliamentary udi, the same assembly passed a constitution which replaced the constitutional framework based on the resolution 1244 of the security council of the united nations, which the administration of the un had regulated. however, it did not become effective until 15 june of the same year 40 . the declaration was supported by the united states and a majority of the member states of the european union, which did not assume a common position at the security council of the un. russia and china opposed the proposal. it was in july 2010 when, as it has been repeatedly said, the icj issued the advisory opinion stating that the udi neither violated general international law nor resolution 1244 of the security council. regarding the internal institutionalization process of the new republic and given the particular concurrent circumstances, the civil international office responsible for the supervision of the process was created. on 10 september 2012, the international steering group for kosovo (isg) considered that its duty in the country had officially concluded, which was interpreted by the pristina parliament as the first concluding manifestation of full sovereignty. progressively, 106 out of the 193 countries of the united nations recognized the independence of kosovo. amongst them, there were 23 out of the 28 states of the european union 41 , 22 out of 27 nato members and 7 of the 8 members of the g-8, remarkably, the usa 42 . in addition, the republic of china (taiwan) has offered its recognition, although kosovo has not accepted it. nevertheless, several countries (amongst them algeria, argentina, azerbaijan belarus, spain, slovakia, georgia, kazakhstan, moldavia, romania, russia, sri lanka, venezuela, vietnam and cyprus) keep their rejection to the declaration of independence of kosovo, and their respect to the territorial integrity of serbia. on their behalf, brazil, chile, jordan, mexico, thailand and uruguay are waiting for a pronouncement by the security council of the united nations to adopt a final decision. 39 the ballot succeeded with the vote of 109 representatives out of 120, because serbian representatives abandoned the session. 40 throughout 2006 internal tensions in the governing party led to the resignation of prime minister kosumi in march, his replacement by agim çeku and, finally, to the defeat of the democratic league of kosovo by the democratic party in the election of november 2007. the leader of this party, hashim thaçi, became prime minister of a coalition government with the league and it was under his management that the udi was passed. 41 the resolution of the european parliament, from march 29, 2012 on the process of integration of kosovo in the european union (2011/2885 (*rsp) (2013/c 257 i/05) acknowledges the satisfactory support and the recognition of kosovo by many countries, and it also regrets the diplomatic pressure exercised by serbia. 42 it must be highlighted that the united states had military-strategic interests on the area, where they set camp bondsteel, the second biggest north-american base in the world. the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 130 concerning the membership to international organizations, it must be noted that the republic of kosovo has never formalized an application of membership to the united nations, due to the announced veto from russia at the security council. in the case of the eu, although it does not formally recognize new states, unanimity would be necessary regardless of the position of its members. this unanimity does not exist nowadays, in spite of the political recognition reached at the european parliament 43 . the international monetary fund started the process of integration of kosovo as a permanent member in june 2008, and on 5 may 2009, it was accepted with 96 favorable votes. later on, this fostered its application of entry to the world bank, which was passed on 4 june 2009 and was made official on 29 june, obtaining, therefore, its first adhesion to a specialized body of the united nations. kosovo is living a strong process of integration into europe from the negotiation of an agreement of stability and association with the eu initiated by its council on 16 october 2013. therefore, it is overcoming the initial refusal of some of the member states to its future integration. it is a negotiation that is coming to a final point in 2014 44 , and which has a direct bond to the application of the case of serbia, to follow the steps of croatia and become a new member state of the eu. iv.3. slovenia and macedonia on 23 december 1990 a referendum on the independence of slovenia took place. in this referendum, both the government and the opposition forces unanimously supported the secession. the parliament set a minimum turnout of 51% and the question was «[s]hould the slovenia republic become a sovereign and independent state?». the supporters of the «yes» reached 88.6% of votes and those for the «no» reached 4%. the independence was formally proclaimed on 25 june 1991 at the same time as the one in croatia, and on 5 october of the same year, the parliament approved the end of its official commitment with yugoslavia. from that moment on, slovenia set its own currency, the tolar, its own national institutions and applied several measures to make its sovereignty stronger. the national assembly adopted the constitutional text on 23 december 1991, and it became effective on the same day. in january 1992, the eec recognized slovenia and croatia as independent states, although there still was a civil war in croatia. the homogeneity of its population made its secession one of the less bloody ones in the breakdown process in ex 43 the resolution of the european parliament from january 16, 2014, accepts, among other issues, to «ask the council to adopt the necessary decisions to allow kosovo to be part of the programs of the eu as soon as possible». http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//text+ta+p7-ta-20140040+0+doc+xml+v0//en [visited: 25th november 2014]. 44 on april 1st, 2014, there was a meeting between the european commissioner, stefan füle, and the government of kosovo, to analyze the final stage of the annexation process to the eu. http://europa.eu/rapid/press-release_statement-14-91_en.htm [visited 25 th of november 2014]. http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//text+ta+p7-ta-2014-0040+0+doc+xml+v0//en http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//text+ta+p7-ta-2014-0040+0+doc+xml+v0//en http://europa.eu/rapid/press-release_statement-14-91_en.htm joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 131 yugoslavia, and its international recognition was one of the clearest, because the country dominated its borders, kept its own army and issued its national currency. in macedonia, on 16 april 1991, the parliament passed an amendment to the constitution in which the word «socialist» was removed from the official name of the state. on 7 june, the new name, republic of macedonia, was officially accepted. after the beginning of the breakdown process in yugoslavia, the republic of macedonia proclaimed their independence, after calling a popular consultation on 8 september of that year. the question was: «are you for an independent macedonia, with the right to enter in a future union of the sovereign countries of yugoslavia?». with a turnout of 72%, the supporters of the «yes» were 95.1% and the ones for the «no» 4.8%. there were no minimum turnout requirements to validate the agreements. the constitution was passed and became effective two months later, on 17 november 1991. afterwards, a second referendum was held, this time for ratification, on 12 january 1992. this time, the albanian minority voted for the creation of their own state. in the next month, the social democrat branko crvenkovski was elected prime minister and got the recognition of macedonia by russia, albania, bulgaria and turkey. in april 1993, the country obtained its recognition as a member of the united nations under the provisional name of «ex-yugoslavian republic of macedonia». iv.4. montenegro and bosnia and herzegovina the case of montenegro presents some remarkable singularities, such as the fact that in this republic there was a referendum on independence under constitutional coverage. indeed, the serbia and montenegro union constitution of 2003, was one of the few constitutional texts of a federal-confederate nature that explicitly contained a clause on secession. it also contemplated political, institutional, economic and social structures practically divided from serbia. but before this, a first referendum (1992) was held, in which those for remaining within the yugoslavian federation obtained 95.96% of the votes. the magnitude of this result is explained by the fact that muslims, albanians, and catholic minorities boycotted the consultation, in the same way as the supporters of independence did. all these sectors alleged that the referendum had been organized under non-democratic conditions. as soon as the pro-independence forces, led by milo dukanovic, came to power (with a narrow margin of votes, in 1996) the relationships between the two confederated republics got worse. the leadership of montenegro asked for the celebration of a referendum for independence and decided to set an economic policy aside from serbia. among other measures, this policy contemplated the establishment of the german mark as official currency (which would be replaced by the euro later on, despite of them not being part of the eurozone). nevertheless, both of them reached a new cooperation agreement in 2012, according to which the yugoslavian federation allowed the so-called federation of serbia and montenegro, which became constitutionalized, as said before, in 2003, contemplating the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 132 the possibility of secession and postponing the celebration of a referendum with this purpose to 30 april 2006 (which was postponed once again to may 21). however, europe did not support this independence process at first. what most concerned the international community, especially the european diplomacy, led by javier solana, was that the case of montenegro could open, once again, a door to solve other conflicts in european regions (i.e. the srpska republic, abkhazia or nagorno-karabaj). it must be taken into account that even transnítria and south ossetia, called for referendums to be held on 17 september and 12 november 2006, respectively. finally, however, the eu and the nato accepted the referendum, and they even fixed the regulations and sent international observers to the process: a minimum turnout of 50% and favorable result of 55%, in addition to other conditions like respect to fundamental rights (especially freedom of speech and demonstration), neutrality in the campaign by the authorities and the media, and clarity in the question. these requirements were outlined by the venice commission, which issued a dictum requested by the parliamentary assembly of the european council, which was assumed by the ministry council and the high representative of foreign affairs and security policy of the european union 45 . the requirements of the referendum were negotiated with the montenegrin political representatives and were reflected on the montenegrin law on the referendum of the state, from 1 march 2006. from here, the referendum of 21 may 2006 was organized. the consultation was held on 21 may 2006, with a turnout of 86.5% and a question that said: «do you want the republic of montenegro to be an independent state with full legal and international personality?». the «yes» option obtained 55.5% of the votes, five tenths more than what had been stipulated as the minimum percentage, and the «no» obtained 44.5%. the parliamentary udi was delayed until 17 february 2008. the new constitution was adopted on 19 october 2007 and replaced the previous one, from 1992, when the country was part of the yugoslavian federation. bosnia and herzegovina held a referendum on 28 and 29 february 1992. it had a binding nature and participation and results were established on 50% to be valid. the question was: «are you for a sovereign, indivisible and independent bosnia and herzegovina?». the opposition to the referendum by the main serbian party went beyond the threat of a violent answer and it led to war. however, the washington agreement, signed on 18 march 1994 led to the creation of a constitutive assembly (ustavotvorna skupstina/ustavotvorbeni sabor), which was kept until 1996. on 21 november 1995, this assembly adopted the text of a constitution, enacted on 14 december, which reproduced 45 the venice commission, advisory body of the parliamentary assembly of the european council, paid attention to the subject of the majority required to consider the referendum valid and issued a dictum under the petition of the parliamentary assembly and the high representative of foreign affairs and security policy of the european union. one of the set requirements was to establish the majority on a 55% of the issued votes for independence as a necessary result of the referendum, as well as a turnout of more than 50% of the electoral census. <http://www.venice.coe.int/webforms/documents/cdl-ad (2005) 034.aspx> [visited on february 1st, 2014]. joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 133 the fourth annex of the dayton peace agreement, from 21 november 1995. it was formally signed in paris on 14 december 1995 and the war ceased with it. for this reason, the constitution of bosnia and herzegovina has the nature of an international treaty. v. the viability of a unilateral declaration of independence in the spanish context as we know, a unilateral declaration of independence does not conform to the regulation of the spanish constitutional orders, because it would suppose de facto that the catalan people, through their representatives, would have affirmed themselves as sovereign subjects 46 . however, the fact that the spanish government is denying this territory the possibility to negotiate the execution of any type of consultation to decide their future political status, based on democratic principles, even as a step prior to promoting a reform of the constitutional order, could legitimize a declaration of this type. this question was raised, as we have already examined, in the ruling of the court of international justice at the hague, regarding the case of kosovo, in which the kosovar assembly was not operating as a self-governing institution of the pre-existing administration and within its limits, on the contrary, it was operating outside it, by virtue of the faculties conferred upon it by the democratic representation of popular will. according to the icj the declaration of independence did not intend to produce its effects within the already existing legal order, quite the opposite, it intended to create a new legality. therefore, in the light of this verdict as well as of the practices analysed in previous sections, a unilateral declaration of independence in catalonia can occur in two possible scenarios: in the first one, although the udi entailed a breaking of the internal order of the spanish state, the catalan institutions could decide to prepare the structures of a future state gradually, to negotiate the distribution of actives and passives with the spanish government and the terms of the joining the eu during a sensible period of 18 months. the second possible scenario is the one of non-cooperation or the one of a systematic blocking by the spanish state. this would impugn any legal or political action inherent to the process. in this case, it does not seem reasonable to postpone the unilateral declaration of independence to the following months and the search of arbitration by the eu or another international body would be a priority. 46 another thing is that, as has already been discussed, it is difficult to dispute the fact that the catalan community is already a people, in the normally accepted sense of the term, and consequently, in view of some of the precedents accepted by the international community, a political subject with the right to decide their own political future. catalonia boasts a history that dates back thousands of years, its own language, its own civil law, a different social and economic structure, autonomous political institutions, and a will that over the centuries has expressed the desire to maintain its own identity, that is backed by its national condition that is referred to, even if indirectly, in the very preamble of the current statute of autonomy of catalonia. the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 134 in that situation, the udi would have the potentiality to implicate the institutions of the union and, generally speaking, the international community. in this blocking scenario, according to the advisory council for the national transition of the catalan government (acnt) 47 two possibilities would emerge: the first one, a udi after an election of a plebiscitary nature called to this effect, with the aim to implement its results. it would necessarily have the nature of an autonomic election, but with the electoral commitment of proclaiming a udi if the majority of the pro-independence forces was achieved. the second one would be to proclaim the udi before an election, notwithstanding that this could be ratified afterwards by a referendum or a popular consultation. in the first case, the plebiscitary election could be considered as politically legitimated if it was a consequence of the prevention of the spanish government, using all kinds of instruments to celebrate a consultation or a popular referendum, or if it was the result of having exhibited a position of total blocking when trying to implement the results of this legally held consultations. in fact, taking into account the typology of the above-mentioned precedents, this would be a similar case, and successfully tested, taking the case of the baltic republics and ukraine as a model, where an election resulted in a declaration of independence proclaimed by a parliament after having obtained majorities, and further ratifying the results in a referendum. in all these cases, once international recognition was achieved, the constituent process started and a constitution was adopted a year later (with the singularity of ukraine, where an agreement of constitutional nature, which remained legal during all the constituent process, was provisionally adopted together with the udi special law). in the case of kosovo, even though it was a parliamentarian udi, it was a territory under international guardianship. besides, the assembly passed a constitution, which replaced the constitutional framework based on resolution 1244 of the security council of the united nations. the new constitution was based on the plan designed by the special envoy of the united nations, matti ahtisaari, although its coming into effects was postponed a few months. on the contrary, the cases which followed the procedure of the referendum after a udi cannot be compared to the catalan case. in slovenia, this sequence was possible thanks to a unanimous agreement between all the political pro-independence forces and it got a wide international recognition that led to a constituent process. in macedonia, the summons to a referendum was followed by a subsequent intervention of the united nations to avoid conflicts between ethnic groups and, for this reason, it did not obtain international recognition until of an election. 47 report n. 4 of the acnt: internationalization of the consultation and the process of self-determination in catalonia. see http://premsa.gencat.cat/pres_fsvp/docs/2013/12/20/15/24/cdf4c2aa-3b6c-4bf8-a9cce58ea3c357a3.pdf [visited on april 3, 2014]. joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 135 montenegro, bosnia and herzegovina, eritrea and south sudan present a common singularity: the intervention of an international body which protected and disciplined the process ab initio. in the first case, the referendum counted on constitutional coverage, although it was rejected by a great part of the international community, and it was finally carried out according to what was set by the european council and the eu (contemplated in a singular law which led to the consultation on may 21, 2006). in bosnia, the previous referendum led to an intervention of the international community, especially the united states, to bring peace to this territory and serbia. it was the washington accords from 1994 which led to the creation of a constituent assembly. and it was this assembly the one which adopted a constitutional text the following year, according to what was contemplated in an annex of the peace agreement of dayton. in eritrea, conversations fostered by the usa led to the celebration of a referendum, and only after an almost unanimous vote for independence, it was proclaimed afterwards, and was recognized by the united nations, the oau and the arab league. the constitution was not passed by the parliament until 23 may 1997. in south sudan, after a peace agreement, a constitution which ended the second sudanese civil war was enacted and, after a referendum on independence, a constitution was adopted and the independence was officially declared afterwards. after having seen all these precedents, the catalan process could be settled using two instruments: the first instrument could be the proposal of a resolution presented by all the pro-udi parliamentary groups, although it would not have legal effects, as it is passed on the basis of the exercise of the function of the parliamentary momentum; the second instrument could be a proposal or a bill, presented by all the pro-udi parliamentary groups, with more formal and normative relevance, passed by simple majority in both of the cases. regarding its content, there are several possibilities: either a short text which only contemplates the will to build up catalonia as an independent state, considering that it must be attached to parliamentary decisions related to the legal framework of the transition, as suggested by the acnt; or a declaration that includes the declaration itself, that is, the claim to exercise sovereignty and to be considered as a successor of the spanish state, plus a solemn declaration of pro-european will and for peace, democracy and human rights, with a focus on some international law instruments of the european union such as the universal declaration of human rights, the charter of fundamental rights of the european union, the framework agreement for the protection of ethnic and national minorities of the european council, the final act of helsinki on agreements of nuclear non-proliferation, etc. the most representative local and civil society entities could externally join this political and legislative act. the above-mentioned declaration of succession to the spanish state has two dimensions: an external one, consisting in the guarantee of its automatic reception in the catalan legal order and the full observance of those treaties which are not constitutive of international organizations, and another one, of an internal nature, which would have the aim of guaranteeing the continuity of the provisions of the legal spanish system in the catalan state, while they are not modified according to the normal legislative procedure. the right to secession in the framework of liberal democracies the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 136 the inherent complexity of the new level that the creation of a new state implies is due to the need of the new state to endow itself of a legal system, which takes time and means. thus, until the beginning of the constitutional process itself, and the passing of the constitution of the catalan state, most of the system should be formed by previously existing regulations, both catalan and spanish, such as the 2006 statute of autonomy. this would force the adoption of a law which provisionally regulates this transfer situation and guarantees the regular and stable functioning of the state of right, as well as providing the solution to possible conflicts with administration or legality. it must not be forgotten that the transition to democracy in spain after the death of the dictator francisco franco was made according to the current legality. thus, a new reform of the fundamental laws (the seventh one, in particular) was dictated, which allowed the call for a legislative election on 15 june 1977. as a consequence, a constitution was written, which derogated the fundamental laws enacted by franco. apart from contemplating the interpretative and of-application rules which guarantee the principle of plenitude and coherence and avoid a legal vacuum, this transitory regulation should also take into account the decision-taking mechanisms, the bodies responsible for them and the regime of guarantees and resources in administrative seats. at the same time, it should also regulate the functioning of the legal catalan institutions in order to consider an appropriate and permanent system of guarantees of the international system. needless to say, this regulation should have a given validity to avoid the maximum legal insecurity. so, after the expiration of the above-mentioned deadline, in a second stage, it should be necessary to analyze the subjects and the physical or legal institutions which, for strategic or emergency reasons, require the adoption of ad hoc regulations from whichever rank. any of the above-mentioned instruments that would be used in a secession process of catalonia from the spanish state would fully respond to the democratic principle 48 which, together with the european citizenship principle, supports the sense and functioning of the eu institutions within and outside its current borders. 48 report n. 6 of the acnt «means of integration of catalonia in the european union», ˂http://premsa.gencat.cat/pres_fsvp/docs/2014/04/14/16/56/1306bad3-6a4c-4027-a013-8dba98347ffe.pdf˃ [visited on april 17, 2014]. http://premsa.gencat.cat/pres_fsvp/docs/2014/04/14/16/56/1306bad3-6a4c-4027-a013-8dba98347ffe.pdf joan ridao martín the age of human rights journal, 4 (june 2015) pp. 111-137 issn: 2340-9592 137 references arcari, m.; balmond, l. (2011): «questions de droit international autour de l’avis consultative de la cour internationale de justice – international law issues arising from the international court of justice advisory opinion on kosovo», balmond, l.; arcari, m.; milano, e.; pertile, m.; martin, j.; palchetti, j.; czaplinski, w.; vitucci, m.; tancredi, a.: declarations of independence and territorial integrity in general international law: some reflections in light of the court’s advisory opinion, giuffré. cristakis, t. (1999): le droit à l’autodetermination en dehors de situations de décolonisation, paris, la documentation française. linde, e. (2013): «estado versus nación. el fin de la era de los nacionalismos en europa», revista de derecho de la unión europea num. 25, july-december. margiotta, c. (2005): l’ultimo dirito. profil storici e teorico della secessione, il mulino. milano, e. (2013a): «autodeterminazione dei popoli», treccani.it, l’enciclopedia giuridicca italiana. milano, e. (2013b): formazione dello stato e processi di state-building nel diritto internazionale. kosovo 1999-2013, napoli, editoriale scientifica. murswiek, d. (1993): «the issue of a right of secession reconsidered», tomuschat c. (ed.), modern law of self-determination, kluewer academic publishers. musgrave, t. (1997): self-determination and national minorities, oxford. roepstorff, k. (2013): the politics of self-determination. beyond the decolonisation process, routledge. thürer, d.; burri, t. (2013): «self-determination», max planck encyclopedia of public international law, oxford public international law, oxford university press. vintró, j. (2013): «la declaració de sobirania i el dret a decidir del poble de catalunya: un apunt jurídic». blog of the catalan review on public law. deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 35 deliberative democracy v. politics of identity oscar pérez de la fuente2 abstract: the defenders of deliberative democracy insist in the idea that for searching political truths is necessary to use values as universality, rationality and fairness. the defenders of the politics of identity distrust from this deliberative approach because, the interests of the powerful groups of the society are often behind those values. the common approach of deliberative democracy misunderstands the proper role, language, expression and actual interests of the members of the minorities. deliberative democracy isn't really compromised with pluralism –social, cultural, ethnic, racial…– because it is more compromised with formal and substantial rules of decision that finally determine the result of the deliberation. minorities claim for a new understanding of the democracy from the difference, from the identity. thus, democracy is the result of a dialogue, not from abstractions, but from the particularity. in this sense, it is important the notion of ethics of alterity as a moral effort to understand the other. this exercise excludes all kind of alterophobia (misogyny, xenophobia, racism, homophobia...) and it is against relativist approach. an identity is legitimate in the way it includes the alterity. the minorities claim to think, other time, topics as democracy from the dynamics between identity/alterity, inclusion/exclusion, equal dignity/differentiated identity. keywords: democracy, deliberation, minorities, politics of identity. contents: i. on deliberative democracy; ii. a version of deliberative democracy; iii. identity, difference, recognition and politics; iv. a more inclusive democracy; v. politics of presence v. politics of ideas; vi. conclusion. i. on deliberative democracy it could be said that there is now a ‘deliberative turn’. in this respect, dryzeck writes: “the final decade of the second millennium saw the theory of democracy take a strong deliberative turn” (dryzeck 2000: p. 1). the implications of these deliberative approaches are not yet quite clear, especially within the institutional domain. in recent literature, there are different conceptions of democracy that emphasize in more formal or substantial aspects. these conceptions have diverse views surrounding the role of the citizens, representatives and the objective of politics. these perspectives also have different philosophical backgrounds regarding concepts such as rationality, persuasion, interests, virtue and so on. 2 lecturer in philosophy of law (instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain). paper delivered in the workshop “deliberating collective identities in postconflict societies”. ipsa congress, madrid, 812th july 2012. this paper is within the proyect consolider-ingenio 2010 “el tiempo de los derechos” (csd2008-00007) and the project der 201122729 of the ministery of science and technology. deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 36 the current representative institutions are supported by a pluralist, liberal, aggregative or realist conception of democracy. there is a political market in which every option competes for voters in every election. this vision is inspired in social choice theory. the implications of this conception are that voters should search for their private interests in the political elections. in this line, shumpeter, dahl and posner have defended some versions of the pluralist conception of democracy (shumpeter 1987) (dahl 1989) (posner 2003) there is an alternative vision that is called discursive or deliberative conception of democracy. some authors have argued that it is needed to increase the deliberation and participation necessary for a democracy of quality. this view affirms that is possible to arrive at an agreement if the participants follow certain rules of public debate. in this position it is important that participants can persuade others and be persuaded by others. the final outcome is a product with the participation of all in equal conditions. there are some authors who have exposed these ideas, some of whom fall under the label of republicanism (cohen 2002) (gutman thompson 2000) (michaelman 1998) (sunstein 1987-1988) (nino, 1996) (dryzek 2000) (bohman rehg 2002) (pettit 2001a). the proponents of deliberative democracy have exposed their views based on values and presuppositions, which are not always explicit and well discussed. there are implicit values and structures under the mechanisms of deliberative democracy. there is a line of criticism of deliberative democracy with regard to its treatment of minorities. some positions have stressed that there are strong assumptions in deliberative models that, in some cases, exclude or undermine the views of minorities. the models of deliberative democracy are generally not sensitive to differences and, in some cases, seek to minimise differences in order to achieve the ideals of impartiality or common good. the objective of this paper is to analyse the relationship between deliberative democracy and politics of identity. some conflicts between them exist. however, politics of identity could be a way of improving deliberation for a more inclusive democracy based on, and not devoid of, differences. ii. a version of deliberative democracy there are several models of deliberative democracy. most of them share some defining characteristics. cohen outlines some features of deliberative democracy: d1 a deliberative democracy is an on-going and independent association, whose members expect it to continue into the indefinite future. d2 the members of the association share (and it is common knowledge that they share) the view that the appropriate terms of association provide a framework for the results of their deliberation. for them, free deliberation among equals is the basis of legitimacy d3 a deliberative democracy is a pluralistic association. the members have diverse preferences, convictions and ideals concerning the conduct of their own lives. oscar pérez de la fuente the age of human rights journal, 1 (2013) 37 d4 because the members of a democratic association regard deliberative procedures as the source of legitimacy, it is important to them that terms of their association nor merely be the results of their deliberation, but also be manifest to them as such. they prefer institutions in which the connections between deliberation and outcomes are evident to those in which the connections are less clear. d5 the members recognize one another as having deliberative capacities, i.e. the capacities required for entering into public exchange of reasons and for acting on the result of such public reasoning (cohen 2002: p. 346). under this perspective, cohen explains the main principle of deliberative democracy: “outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement among equals” (cohen, 2002, 347). developing this idea, cohen exposes what are the conditions for deliberative democracy: i1 ideal deliberation is free in that it satisfies two conditions. first, the participants regard themselves as bound only by results of their deliberation and by the preconditions for that deliberation. their consideration of proposals is not constrained by the authority of prior norms and requirements. second, the participants suppose that they can act from the results, taking the fact that a certain decision is arrived at through their deliberation is sufficient reason for complying with it. i2 deliberation is reasoned in that the parties are required to state their reasons for advancing proposals, supporting them or criticizing them. they give reasons with the expectations that those reasons will settle the fate of their proposal. i3 in ideal deliberation, parties are both formally and substantively equal. everyone with the deliberative capacities has equal standing at each stage of the deliberative process. the participants are substantively equal in that the existing distribution of power and resources does not shape their chances to contribute to deliberation, nor does that distribution play an authoritative role in their deliberation. i4 finally, ideal deliberation aims to arrive at a rationally motivated consensus –to find reasons that are persuasive to all who committed to acting on the results of a free and reasoned assessment of alternative by equals (cohen 2002: pp. 347-348). it seems that deliberative democracy has some conditions that guarantee the legitimacy of the process as freedom, reasoning, equality, consensus. but the point is that this vision quite often misrepresents the views of minorities and makes them almost invisible for the deliberation and final outcome. iii. identity , difference , recognition and politics during recent years, the relevance of identity has grown in both the political theory and political agendas of constitutional democracies. the discourse regarding deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 38 minorities has represented a challenge for some theoretical and practical approaches to politics. the questions of “who am i?” “where do i belong?” have become central aspects of some perspectives in public deliberations. this has been labelled as the ‘struggle for recognition’. in an influential essay, taylor explains that there are two ideals, which are sometimes in conflict with each other. the first one is the equal dignity of all human beings. this entails politics of equality and non-discrimination, and is the common reading of enlightenment heritage. but taylor exposes that there is another relevant ideal, also with a universal basis: the recognition of the differentiated identities of every human being. the relationships between the two ideals are complex and not always harmonious. in some cases, each ideal leads to a different solution. the ‘struggle for recognition’ means to move part of the political agenda from an ‘equal dignity’ ideal to a ‘differentiated identity’ ideal. this movement seems difficult in the context of deliberative democracy. as goldstein and rayner point out, “the negotiating process in identity disputes is often typified by denial and mystification, and its outcome is frequently ambiguous: no matter what i get (what interest are satisfied), i may continue to wonder if what i get really recognizes who i am” (goldstein and rayner 1994: p. 367). based on this perspective, the question is ‘who is included/excluded from the discussion?’ in her work inclusion and democracy, young offers critiques of the deliberative democracy model from the perspective of minorities. she identifies exclusion as a problem of democracy, though in the deliberative model. her vision denounces the subtle ways in which minorities fail to fully participate, express opinions or be influential or decisive. young exposes that there are external and internal forms of exclusion in the deliberative model of democracy. external exclusion, young explains, names the many ways that individuals and groups that ought to be included are purposely or inadvertently left out of fora for discussion and decision-making (young 2002: pp. 53-54). this is subtle because democracy usually speaks the language of equality and inclusion, but at the same time this also means an implicit mechanism of exclusion. the values of political culture and media messages are dominated by powerful groups within society. effective access to media and real political participation by minorities is discouraged by the dominant groups. consequently, difficulties in participating are encountered by individuals who are members of a minority. for young, the most pervasive and insidious form of external exclusion is the ability of economically or socially powerful groups to exercise political domination (young 2002: p. 54). this means that politics is conceived as the territory of the dominant groups or, more exactly, the territory of the ideas and values of the dominant groups. young argues that it is not simply a question of exclusion of ideas but rather a matter of modes of expression. this is related to internal exclusion, which young defines as the ways in which people lack effective opportunity to influence the thinking of others even when they have access to fora and decision-making procedures (young 2002: p. 55). oscar pérez de la fuente the age of human rights journal, 1 (2013) 39 the argument from politics of identity, as gutmann explains, is “what counts as reasonable or unreasonable for matter of social justice cannot be specified independently of social understandings” (gutmann 1993: p. 201). it could be a social understanding from a politics of identity of what is reasonable in a specific case. or it is quite clear that the social understanding under majority values of reasonability undermines minority perspectives. the model of deliberative democracy affirms the view that deliberation ensures a fair result. however, sometimes this is not true in an inclusive deliberation, but rather in a predesigned outcome. it is implicit in the deliberative model that consensus on uniform rules is always hypothetically possible (wheatley 2003: p. 518). this consensus is based on some ontological, philosophical or political notions that have strong meaning and implications from the minority members’ perspectives. young suggests that, in circumstances of social and economic inequality between groups, the definition of the common good often devalues or excludes some of the legitimate frameworks of thinking, interest, and priorities in the polity. a common consequence of social privilege is the ability of a group to convert its perspective on some issues into accepted authoritative knowledge without being challenged by those who have reason to see things differently (young 1997: p. 399) under the question about the forms of deliberation, some kind of implicit political and social exclusion is underlined. young states that the label ‘articulateness’ privileges the modes of expression typical of highly educated people. those who exhibit such articulate qualities of expression are usually socially privileged (young 2002: p. 38-39). in this sense, young affirms “disorderly, disruptive, annoying, or distracting means of communication are often necessary or effective elements in such efforts to engage others in debate over issues and outcomes” (young 2002: p. 50). implicit in this view is the idea of the covert exclusion of the views of the minorities, imposing a norm of order in political deliberation. sometimes minorities express their views as a part of a social protest or with demonstrations or activist actions. these are also part of politics according to social needs. in the view of young, “i aim to challenge the identification of reasonable open public debate with polite, orderly, dispassionate, gentlemanly argument” (young 2002: p. 49). iv. a more inclusive democracy the criticism made in support of politics of identity towards deliberative democracy claims that democracy must mean more inclusion in the public sphere. basically, the criticism is that the model of deliberative democracy is an implicit form of exclusion of the views, values and forms of expressions of the minorities. there is some tendency to erase differences by appealing to such ideals as impartiality, reasonability, universality and common good. but these ideals could have a negative result for minorities. part of the battle for a more inclusive democracy is the recognition of the differences (or social perspectives, to use young’s term). democracy, then, is not synonymous with the elimination of differences, but rather democracy comes from deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 40 differences from a ‘situated self’. under this perspective, young describes conditions for an inclusive democracy: a) plurality of perspectives motivates claimants to express their proposals as appeals to justice rather than expressions of mere self-interest or preference; b) confrontation with different perspectives, interests, and cultural meanings teaches individuals the partiality of their own, and reveals to them their own experience as perspectival; c) expressing, questioning, and challenging differently situated knowledge adds to social knowledge. while not abandoning their own perspectives, people who listen across differences come to understand something about the ways that proposals and policies affect others differently situated. (young 1997: pp. 402-403) there are some tensions between deliberative democracy and politics of identity, but both want to improve the quality of public decisions. to study these tensions, several issues are analysed: a) incommensurability argument; b) civilizing force of hypocrisy; c) ethics of alterity; d) politics of ideas v. politics of presence iv.1. incommensurability argument there is an important metaethical classification of moral truths which distinguishes between monism, pluralism and relativism. beyond relativism, there are no moral intrasubjetive values –in the strong sense– or there are moral values only within a society or culture –in the weak sense. beyond monism, there is a unique hierarchy of moral values for every case, of which human beings can be aware. beyond pluralism, there are moral values, but they are objectively plural. they are in conflict, in the sense of incommensurability (perez de la fuente 2005). the real structure of values, for pluralism, is complex, agonistic, and sophisticated. this means that some times, theory has epistemic limits to compare one value to another. this view was defended by berlin. the consequence is that politics is conceived as conflict rather than unanimity. an application of this view is the proposal of agonistic democracy by mouffe. the force behind this argument for deliberative democracy is showing the implicit methaetical premise on moral values behind some models. these are closer to a monist conception that for every case there is only one right solution. but it is possible to defend a methaetical premise of value pluralism. the intuition of this second view better reflects the complex reality and supposes a better outcome for minorities. the argument of value pluralism is an interesting point, but it also has some dangers. the main problem is confusing value pluralism with relativism, in the strong or weak sense. in the first case, it would not be appropriate to interpret that what value pluralism means for deliberative democracy is something similar to anything goes. this means that, for pluralism, there are moral values, and deliberation could be a good means to find them. the issue is that the answer could be more complex than for monism. in the second case, relativism in a weak sense, it is important to properly distinguish between moral incommensurability with cultural incommensurability. while oscar pérez de la fuente the age of human rights journal, 1 (2013) 41 the difficulties of comparing art works from different cultures is familiar, it is clear that radical cultural incommensurability means that it is impossible to morally judge the values of a culture outside of them. value pluralism does not negate universality, but surely it is a more complex universal conception of monism. the incommensurability argument supports the belief that deliberation has a theory behind it. this might seem obvious, but it is a more general reflection on the role of theory and practice in the philosophical approach. if theory always gives the solution, deliberation becomes useless. if deliberation ought to arrive at the answer that is derived from existing theory, the actual deliberation has minimal real importance. if the outcome of an deliberation is always judged by its correspondence to theoretical, predetermined values, deliberation as a process to finding moral truths is implicitly discounted and devalued.4 following cohen, “outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement among equals” (cohen 2002: p. 347). how does incommensurability thesis concord with this statement? a monist presupposes that he knows the truth and the way to achieve it. if he has a coherent reasoning, he also thinks that others can achieve it and if they don’t, they are mistaken. a monist vision of deliberative democracy could be understood as a collective way to arrive at the truth. under this perspective, ‘consensus’ is accompanied by resounding words such as impartiality, universality and so on however, if the final outcome do not coincide with the monist’s ‘truth’, then for him deliberative democracy is mistaken and he denies its validity. it is the domain of tolerance –or the second-best preferences. underlying this is the view that there are two sources of legitimacy for truth. the first one is the monist view, with its way of arriving at the truth. the second one is the process of deliberative democracy to arrive at an agreement. the two views do not necessarily coincide. a monist who deliberates must be capable of being persuaded by others’ arguments, but as such he is being incoherent with his particular truth. it seems that deliberative democracy needs to compromise with some premise of value pluralism. if a person thinks that deliberation improves the outcome and the quality of democracy, that person, to be coherent, should hold that values are plural and objective. this means that democracy is conceived as a struggle between differing views all of which are valid. in consequence, democracy is something agonistic, as a tragedy, as a dilemma… in this context, deliberative democracy could be a good tool for every option to expose these views and better arguments. deliberation could be something decisive, in pragmatic terms. 4 michelman exposes that “a deliberative style of politics may be confrontational, contestative, and fully compatible with pluralistic political sociology. it is true that notions of deliberative politics may be framed as presupposing the existence of objectively discoverable, transcendentally right or best answers, or as demanding of participants the submergence of their individualities and conflicts in a collective being or common good. but aspirations to deliberative politics need not carry such strongly solidaristic baggage” (michaelman 1989: p. 448). deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 42 monism and value pluralism offer different relationships between theory and practice. monism has strong theoretical content and is averse to forgoing it. then deliberative democracy can confirm its views or, if not, democracy is mistaken. value pluralism is a pragmatic option. there is no theoretical answer to the question if a value is better than another. then the solution could be a deliberation to search the best arguments. generally speaking, monist views –near universality and impartiality– are less responsive to minorities’ claims than value pluralism. describing values as coherent and harmonic usually uncover the majority’s interests and values. describing values and democracy as competitive and in struggle usually reflects better the vision of minorities. iv.2. civilizing force of hypocrisy one of the theoretical elements behind deliberative democracy models is human nature. the first relevant notion is rationality understood as individual self-interest, sometimes expressed as maximization of utility. the second notion is reasonability understood as the individual capacity of a moral sense of justice. this is commonly interpreted that, at times, some relevant considerations of justice suppose a renouncement of individual self-interest. the aggregative model of democracy has human beings as rational and selfinterested. the deliberative model of democracy has human beings as rational and reasonable. this second approach is developed in rawls’ works. in the model of deliberative democracy, one can be persuaded by the reason of others and can change his or her preferences. he or she can be sensible to arguments, not only self-interest. in an interesting work, elster has defended the civilizing force of hypocrisy in deliberative contexts. he analyses two constitutional assemblies and focuses on two activities in the assemblies: debating and bargaining. he emphasizes the strategic use of impartial arguments and compares them with the bargaining alternative. elster then summarizes his argument in four steps: 1.there are real penalties attached to naked assertion of self-interest. 2.impartial claims that correspond perfectly to self-interest will in fact be perceived as naked assertions of self-interest. 3.because it may be difficult to decide whether a claim corresponds perfectly or imperfectly to self-interest, the second premise is necessarily more shaky. 4.sometimes the need to adopt an arguing rather than bargaining stance makes a difference (elster 2000: p. 421). the conclusion in elster’s view is that it is better to adopt an impartial argument if it is a part of a strategy, rather than bargaining. this supposes that the translation of the claims to the language of justice, even strategically, based on self-interest, could work in favour of the weak. this is a good point but it could potentially be interesting to explore consequences from the perspective of minorities. in order to understand the civilizing force of hypocrisy, it is relevant to appeal to rawls’ notion of duty of civility. he defines it as: “the ideal of citizenship imposes a moral, not a legal, duty –the duty of civility– to be able to explain to one another on oscar pérez de la fuente the age of human rights journal, 1 (2013) 43 those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason. this duty also involves a willingness to listen to others and a fair-mindedness in deciding when accommodations to their views should be reasonably be made” (rawls 1993: p. 217). if deliberative democracy searches for the best argument, there is a need to justify each person’s own claims in terms acceptable to all. the translation from interests to justice, from rationality to reasonability is, according to elster, a bit hypocritical, but preferable to bargaining. from the minorities’ approach, elster’s argument could be interpreted in different terms. the strategic use of impartiality in deliberation by majority members could be brought into question when it corresponds clearly to their self-interest. essentially, the denouncing aspect of the politics of identity approach is that majority values are seen as neutral and normal, but minority values are seen as inferior and deviant. when the majority uses impartial arguments in deliberative democracy situations, they could be defending their own values. the minorities have, roughly speaking, two alternatives: also to be hypocritical or to denounce the strategic use of the argument. the first possibility implies constructing impartial arguments that in fact coincide with minority members’ interests. this leads to difficulty when the difference is perceived as a stigma, as multiculturalism denounces. minority arguments need then a special kind of justification that could come from a meta-impartiality level, or could mean, as a condition for impartiality, the recognition of differences. the second possibility is to denounce that, behind the impartiality arguments of majority members, there might exist a strategic use because it in fact coincides with the majority’s self-interest. the point made by elster is that the use of impartiality arguments could be beneficial for the weak. in these situations, minority members have to determine whether an impartial argument is good for their interests and identities. they can then accept the argument or construct a better argument according to their views. the force of the best argument is still better than the force of bargaining. this might be particularly clear for minorities due to social inequality and unequal distribution of political power. usually minority members have little bargaining power. there may potentially be some exceptions. there is a somewhat pessimistic point in elster’s argument that brings up a kind of sophistic approach. sophism teaches citizens in athens polis to convince using argument in order to defeat rivals, without special moral considerations. the point is that if the deliberative democracy model is an exercise in hypocrisy and every participant only in fact searches based on their self-interest, deliberation could mean a kind of disguise for interests with arguments. this is not necessarily bad from a minority members’ perspective if they use arguments that are based on their interest and identities to achieve justice, and make strategic use of the strategic utilization of impartial arguments made by majority members. deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 44 iv.3. ethics of alterity in a globalized world, the discourse surrounding identities must be adapted to new realities. there is a discussion between cosmopolitan and nationalist visions that has different dimensions. both sides have good arguments. i defend the view that the best way to understand cosmopolitanism is as moral virtue (perez de la fuente 2006b) this cosmopolitan virtue has two elements: a) ethics of alterity; b) redefinition of solidarity connections. the ethics of alterity is inspired by the works of aranguren and levinas. this view is in opposition to both relativism and any form of alterophobia (misogyny, racism, xenophobia, homophobia, antisemitism …). it is based on the notion of reciprocity under the golden rule of humanity: do to others as you would have them do to you. this golden rule is reflected in the norms of several religions. the main point of the ethics of alterity is that an identity will be legitimate within the conditions of inclusion of its alterity. this does not mean renouncing ones own values, but rather seriously undertaking the task of understanding the other individual and learning from the differences. this should be considered an ethical exercise. this moral attitude has been called as positive tolerance by thiebaut and eusebio fernandez (thieubaut 1999: p. 59) (fernandez garcia 1995: p. 98) the adequate development of ethics of alterity could be a good mechanism for improving deliberative democracy. there is an insistence on the relevance of identity, but it could be interesting to turn to the relevance of alterity. this is particularly useful in deliberative contexts. in english, there is an interesting expression: putting yourself in someone else’s shoes. it precisely reflects the exercise of adopting the other’s point of view. the point in ethics of alterity is that we can learn from this exercise and it is, indeed, a positive ethical exercise. in an inclusive democracy of deliberation, the ethics of alterity would be a way of convincing the majority to change the stigmatizing meaning of difference. story telling by minorities would be a way of sharing experiences of oppression, discrimination, and marginalization as a part of a day-to-day understanding of their situations. it would also serve to demonstrate the impact of some majority-held –apparently neutral– values on the minority’s situation. this is essentially the exercise of recognizing the differences as morally relevant. this is the first step towards accepting their claims as legitimate and for achieving the political empowerment of minorities. it is possible to think that ethics of alterity for deliberative democracy is a naive vision. one of the premises for deliberation is that individuals are capable of being persuaded by the reasons and visions of others. if individuals only follow their own self-interest, they do not really want to deliberate for real; instead, they bargain. the purpose of ethics of alterity is to try to legitimately understand the reasons of others and learn from this. oscar pérez de la fuente the age of human rights journal, 1 (2013) 45 v. politics of presence v. politics of ideas one interesting point on the minority’s perspective is the approach, defended by phillips, on the necessity of a politics of presence in the decision-making process (phillips 1995). this means that the outcome of a deliberation depends upon who participates in arriving at the decision. the composition of assemblies is not so neutral as might be supposed; it influences the decision-making process. then politics of presence requires that representatives of the minority be part of the organs that decide. for example, the policy of quotas for women in politics. or, more recently, the claim for equality amongst both sexes in a democracy. this question is polemic, especially in political contexts. there are well known arguments for and against reverse discrimination, which are commonly repeated. it is relevant to note that an important claim made by minorities is a collective right of representation as a minority. this means being represented as a minority in government organs. this is the case of indigenous representatives in latin american parliaments. in a deliberative democracy context, it would mean the necessity of plurality in the composition of fora, or channels of participation whereby members of minorities must be included. minorities must be included not only when the decision affects them directly but also in all decisions regardless of their impact on them. the presence of other visions, especially those of minority groups, is a good condition for ethics of alterity. otherwise, some neutral and impartial members decide based on supposing how the other might think or what would be in the other’s best interest this is clear for example when a supreme court decides a case on abortion without any women amongst the judges who hear and decide the case. however, the politics of presence has its weak points. the presence of a member of a minority does not guarantee that he or she will defend the interests or perspectives of the minority. this is related to the question of essentialization of identities. there are relevant differences between minorities. there are multiple identities amongst minorities and the individual self-definition incorporates various levels. another weak point is the application of the dilemma of difference. when the image, language or claims of the minority group instead have an emancipatory interpretation a connotation of emancipation from dominant-held views, it reinforces the tendency of the majority to stigmatise and belittle the minority. the question then is whether, to arrive at a more inclusive democracy, there should be a change to the rules of ‘political correctness’: accepting the difference as a usual part of the political agenda and considering ridicule and depreciation of minority speech as suspicious. although this vision may have weak points, the conclusion is that it might be necessary to combine the politics of ideas and the politics of presence. minorities must be represented in decision-making. it is also true that the majority can, in an exercise similar to ethics of alterity, learn to appreciate adequately the view of others. the key point is that the presence of minority members in decision-making organs can facilitate satisfactory democracy in the process. deliberative democracy v. politics of identity the age of human rights journal, 1 (2013) 46 vi. conclusion democracy must speak the language of inclusion. however, there are some implicit rules and values that serve to exclude the views of minorities. deliberative democracy and politics of identity both seek to improve the quality of public decisionmaking. they both search for a more just society, yet the two visions in some aspects are contradictory. there are ontological, philosophical and political issues with both approaches that are usually not analysed. the interrelation between deliberation and identities is not commonly analysed due to the tendencies of individualism and assimilation. the weight of the fundamental view in deliberative democracy models that the way to attain the common good is to minimise differences has led to this absence of analysis. the challenge is to develop a deliberative democracy model that is more inclusive yet embraces and accommodates difference. politics, then, is not the domain of unity or unanimous decisions, but rather the sphere of struggle, value pluralism and confrontation. this does not mean there is not a solution, but it is potentially plural and agonistic. the outcome must incorporate all relevant social perspectives and suppose an ethics of alterity exercise. the incommensurability argument is relevant for minorities because the emphasis on monism is behind some deliberative democracy models. the monist unique hierarchy of moral values usually corresponds to majority values, considered as normal and neutral. behind values such as impartiality or reasonability, there is a subtle form of exclusion of the views of minorities. under the civilizing force of hypocrisy argument, there is an interesting view on the strategic use of argument in deliberative contexts. the point is that, instead of deliberation developing in terms of reasonability or impartiality, in fact every participant is calculating interests and using strategies. minorities must be on their guard against this strategic use of argument by the majority and need to devise the best counter strategy in deliberation. deliberating just solutions for social problems, in an inclusive way, needs both to get away from identities and to develop an ethic exercise based upon ethics of alterity. this supposes deliberation must incorporate all relevant social perspectives and must learn from the inclusion of alterity in terms of reciprocity. this excludes relativism and all forms of alterophobia. the main ethical issue is the relationship with the other and there is a great learning on this. the rules and values of deliberative democracy need to adopt adequately the argument of ethics of alterity. minorities must defend with moderation the politics of presence. whilst there are also a few dangers with this view, it generally shows positive points with respect to the minority. the best solution is a combination between the politics of presence and the politics of ideas. it is easy to perform an ethics of alterity exercise if the minorities are present in the deliberative organ. but it is also true that this presence does not necessarily guarantee the outcome, and it is possible for majority members alone to perform this ethical exercise. obviously, the politics of presence facilitate this. oscar pérez de la fuente the age of human rights journal, 1 (2013) 47 a definition of democracy, from classical origin, says it is the government of ‘free and equal’ citizens. although there is an emancipatory meaning on these democratic ideals, from its origins, democracy is also synonymous with exclusion of women, foreigners and slaves. the different forms of exclusion have changed, but persist in several ways. the point is that deliberative democracy models have a tendency of privileging some points of view and types of arguments, and excluding minority members’ perspectives. the improvement of collective decision-making requires a more inclusive concept of democracy. bibliography appiah, k. a. 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(2001b) “deliberative democracy and the case for despoliticising government”. unsw law journal, num. 24 vol. 3, pp. 724-736. phillips, a. (1998) the politics of presence. oxford: oxford university press. posner, r. (2003) law, pragmatism and democracy. harvard university press. rawls, j. (1993). political liberalism. new york: columbia university press. sandel, m. (1982) liberalism and the limits of justice. cambridge university press. schumpeter, j. a. (1987) capitalism, socialism and democracy. london: unwin paperbacks. sunstein, c. (1987-1988) “beyond the republican revival”. yale law journal, num. 97, pp. 1539-1590. thiebaut, c. (1999) de la tolerancia. madrid: visor. young, i. m. (1997) “difference as a resource for democratic communication”. in bohman, j. and rehg, w. (eds.) deliberative democracy. essays on reason and politics. cambridge (massachussetts), london: the mit press, pp. 382-406. young, i. m. (1990) justice and politics of difference. princeton university press. young, i. m. (2002) democracy and inclusion. oxford university press. emigración e integración the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 129 human rights and forced displacement of the population (a note about the difficulties in the case of colombia) pedro carballo armas 1 abstract: with just over three million displaced persons, colombia has a huge number of internally displaced persons and, without any doubt, is one of the largest in the world, entrenched for decades. the armed conflict raging in their society, especially in rural areas where there is little institutional presence, has resulted in a constant struggle in those territories between the “guerrillas” and paramilitaries. the validity of this conflict helps explain the idea of the dispossession suffered and the consequent abandonment of territories by the population, making this sort of internal diaspora called internal displacement. the government response is far from optimal because usually massive displacement of communities has produced a new phenomenology in dispute in reception sites, within the country’s own borders: isolation and maladjustment; marginality (and consequent invisibility), confinement, and social conflict. this analysis aims to highlight the humanitarian crisis and human rights conflict that stems from forced displacement and government policies, and the need to establish an efficient database to know the situation of the displaced population. also it redefines a minimum list of essential rights of conflict victims and the feasibility of a transitional justice process. keywords: human rights; forced displacement; international humanitarian law; governance and government policies. contents: i. introduction; ii. difficulties and vicissitudes in return policy; iii. forced displacement and rights; iv. displacement and the struggle for equality (about fragile sectors of society); v. conclusions. i. introduction colombia has suffered a major humanitarian crisis for quite some time. it is the largest crisis that it has faced in its history, and also is one of the countries with the highest number of internally displaced, along with sudan, iraq, afghanistan, and most recently, syria. 1 director of unesco chair “human rights and democracy”, universidad de las palmas de gran canaria, spain (pcarballo@ddp.ulpgc.es). the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 130 faced with this situation, it is obvious that there is a correlation between conflict and displacement, since most contentious areas are the ones with the greatest expulsion of people. thus, between 1946 and 1966 an estimated two million people were displaced, with the abandonment of approximately 400,000 plots, following the war between liberals and conservatives in the period known as “la violencia”. however, that period ended with the reconciliation between the two political parties in dispute but neither the land restitution process nor the phenomenon of forced displacement were taken into account. since 1980, forced displacement has become effective because of fighting between rebels and government forces, to which is added at the end of the decade, the paramilitaries. also at that time the problems of the displaced population and the recovery of property were considered. in this regard, united nations (2001) has warned of the conflict that has lasted over 40 years and, within it, one of the most crucial aspects is forced internal displacement. this internal displacement is estimated at just over three million people since 1985, which for a country of about forty-five million people, is an number that cannot be neglected. most forced displacements occur in rural areas, where people are forced to leave their homes and the lands which feed them. but also scattered social and cultural ties cause large gaps in the full education of minors. displacement has also undergone major shifts over time: thus, while the shift in the eighties of the twentieth century occurred in poor and rural areas, in the first decade of the century the movement was generated in areas with rich natural resources for legal or illegal trading (eg, african palm in the chocó, or coca in the south of the country). this has led many to refer to this aspect of the conflict as the “counter-agrarian reform”. here are some figures: in recent years colombia has become one of the countries with the highest figures of displaced population, with 3.6 million people on december 31, 2010, involving approximately 836,000 families (moro et al., 2011), which have been pushed out of their homes and off their land (fitzpatrick, 2001). accounting for lost land and property has also had its difficulties. thus, in the 1997-2003 period there is a lack of information, as tax return forms did not include specific items on remaining capital, so that existing information depended on the stories of the victims. improved forms from 2004 allowed an improvement to see at first hand aspects of abandoned housing, land and property (moro et al., 2011). and this is a task of the state to be used for the process of care and full compensation of victims (escobar et al., 2003). the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 131 in any case, according to the data that are available from official sources, abandonment of land has the following characteristics (moro et al., 2011): 1. 39% of the displaced population left abandoned land. 2. 61% left abandoned land. in relation with this we must add that many ethnic groups have been affected by forced displacement, which means that they have lost the use and the control of their territories, either because they were simply overrun, or worse, because of misuse of natural resources, or because they have been destroyed. this means, in short, the inability of ethnic groups can stay in their habitat and therefore endangers the survival of their cultures. one aspect that should be taken into account in this conflict is that there are a variety of ways to the land in colombia. this shows the great complexity that the government faces to solve internal displacement. according to moro et al. (2011), there are titled lands to peasants (inheritances, private acquisitions or award, etc.). there are no registration properties. there are collectively titled territories to indigenous people. there are collectively titled territories to afro-colombians. there are territories in a collective titling process (indigenous or afrocolombians). there are lands that are held by those who consider themselves owners without deeds. there are people or groups who occupy vacant national or public goods. there are people or groups who occupy forest reserves, national parks or protected areas at national or local level. and, finally, there are people occupying plots under different modalities and recognize that the property belongs to another tenant, sharecropper (comodatarios), or other users, called "precarious". as we can notice, the relationship with the land covers a wide range in which it is necessary to take into account not only the titles (or lack thereof) of property, but also those possessing no owners. that is, the government should make an effort to achieve a comprehensive understanding of the heritage, which takes into account the diversity in land tenure and therefore, with a broad idea of dispossession, as it affects individuals or groups have a particular relationship to land and other natural resources (moro et al., 2011). in the case of indigenous and black communities, the issue is worse which remains largely invisible and unmet (moro et al., 2011). and so is the case in women. the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 132 ii. difficulties and vicissitudes in return policy one of the first basics needs to solve internal displacement is immediate humanitarian assistance and emergency. and this has been the institutional response, focused on dealing with the minimum living conditions of displaced victims. however, the answer has always been postponed owing to socioeconomic stabilization. the experience of recent years has shown that returning to the land is not at all simple. firstly, because the procedure is not easily accessible to the displaced population, and secondly, because many of the people involved in this process have been seriously affected, or in many cases, have been killed (moro et al., 2011). thus, security must be ensured to enable the distribution of land to the displaced population. in this regard, the government itself has recognized that there is a serious safety problem in return, particularly if the structural causes remain associated with the armed conflict that has generated the forced displacement of the population. there are other difficulties in the return of the displaced population. one of these difficulties is that upon returning to the land the population is worse off than where they left off. basically, the agricultural land belonging to the displaced is quite unfavorable. among the main reasons the following can be seen: a) mining projects affecting legal or illegal transformation of the territory, b) massive purchases of land in abandoned areas, c) infrastructure or high-impact projects and activities that transform the natural landscape and produce new interests in the territory, d) no public or private re-planning of the abandoned territory e) other land is allocated; f) armed groups in the territory or settlement under their control; g) the destruction or deterioration of housing and abandoned land (moro et al., 2011). however, since 2001 preventive tools have been established to protect abandoned land and identify and record the properties and rights over them. there are a few routes and protocols called individual and collective protection of land: one for the protection of land considered individually, and the second, for the protection of jointly owned land (moro et al., 2011). there is a further mechanism: the ethnic route, with a low level of efficiency. regarding the individual route, originated by the victim's request for the protection of their land, in practice this only worked for the owners because of the limitations of state institutions in identifying and cross-referencing data for the individualization of abandoned land or land stripped from owners or holders. as for the collective path, this begins through a land report which, once it is endorsed by the “committee for assistance to displaced” of a municipality or the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 133 department, constitutes sufficient evidence to establish the displaced person’s identity as possessor, holder or occupier. also here there have been difficulties due to low levels of institutional information or the obsolescence of rural land registers, among the most important causes that we can mention. statistics show that municipalities with higher rates of expulsion lack collective action and have the following features that facilitate theft: failure to identify institutional land abandoned by internally displaced. no information is collected relating to memory tenure with communities. maintain open land market, without any control. no formal programs are initiated. but again, experience has shown that socio-economic stabilization of the displaced population also requires public policies and projects for economic and social recovery, such as the reconstruction of the farmers' fields so that they regain their heritage and, consequently, their economic and productive capacity, or in the case of ethnic groups, so they can return to their territories and administer them, so they can perpetuate their own cultures. in any case, not only these initiatives are required of the colombian state, but the displaced population is also entitled to full compensation as victims of conflict. repair, as discussed below, has as its foundation the recognition of liability for damage caused by human rights violations. in short, everything described can highlight the following: the combination of restitution is necessary, especially if one considers the destruction of homes and infrastructure holdings. restoration projects should enable the formalization of titles or land rights, and the issue should be part of institutional projects. the return must be safe to enable the socioeconomic conditions of the displaced population. the return of indigenous peoples and afro-colombians requires special sensitivity, which would protect their values and cultures. iii. forced displacement and rights one of the most significant aspects of this conflict, which on occasion has been described as genocide (ferreira & fraudatorio, 2012), is the impunity that has existed against the forced abandonment and dispossession of land. however, the passing of law 387 of 1997 was a first approach to many of these requirements. input, recognizing a displaced person as a victim of the conflict and applying a series of specific rights that are intended to cover comprehensive care of the displaced population (jorge urbina, the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 134 2000). a regulation is established in three phases: a) prevention, b) humanitarian assistance and economic stabilization, and c) specific responsibilities of the various institutions. furthermore, forced displacement connection enters international humanitarian law (currea-lugo, 2007), since the geneva conventions and their additional protocols established a set of minimum rules, among others, for the protection of wounded and sick people, as well as protection of civilians in the conflict and the protection of their property (castillo, 2003). in the legal field, the colombian government has also introduced criminal provisions (bohórquez & centeno soto, 2007), to define those crimes against protected persons by international humanitarian law (art. 159 pc), or crimes against personal autonomy (arts. 180-181 pc), or even worse other criminal types, such as failure to report (art. 441 pc), conspiracy (art. 340 pc) or favoring the escape of prisoners (arts. 449-450 pc). also, the right belonging to the displaced in order to obtain financial compensation under a panoply of different procedures (guardianship action, group action, the tort action, repair or direct action). it has also undergone a need for transitional justice (bohórquez & centeno soto, 2007), that is, the set of processes of prosecution for human rights violations committed during the armed conflict and where, according to experiments carried out in other countries, there must be at least the following parameters: individual responsible procedure. clarification of abuses. repair of victims. channelling reconciliation in communities. iv. displacement and the struggle for equality (about fragile sectors of society) the consequences of forced displacement are various: the family and social structure is fragmented, the community disintegrates and, in general, progresses towards poverty (ibáñez londoño, 2008). according to unhcr, most displaced persons are directed to urban areas, where they finish settling, usually in marginal areas under conditions of poverty and overpopulation. moreover, this population has a higher unemployment rate than the national average in colombia (acnur, 2008). therefore, reaching the city does not mean for the displaced people the end of their problems: socioeconomic stress generates violent behavior, overcrowding, shortage or just a complete lack of resources to meet the payment of leases or buying food to survive. the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 135 it is worth examining some of these particular situations. a) the situation of women is especially important, because there are clear gender dimensions of internal displacement in colombia. statistics reveal (kerr, 2010) that one of the main causes of displacement of women is sexual violence. it is estimated that 48% of the displaced are women, but also many of them are themselves heads of households (an estimated 24% of the displaced population) . indeed, many women have had to move when their husbands were killed and so they became heads of families. they have also suffered frequent rapes, but more than the embarrassment they may feel, when they decide to report these rapes, in practice they were not investigated (ochoa, 2010). arriving in cities many of the women (60%) work informally (eg, as street vendors), other domestic services (20%), and unfortunately, when they have no resources, as prostitutes (quiñones, 2010). in the case of indigenous women the situation is worse because they often do not speak spanish. this means that indigenous women suffer triple discrimination: as women, displacement, and due to belonging to certain ethnic groups (quiñones, 2010). in the case of afro-colombians, some have stated they do not rent homes because they have many children, and confirmed cases of girls leaving school owing to discrimination (quiñones, 2010). b) another fragile sector in the colombian domestic diaspora is the situation presented by those of indigenous and african ascent (gómez del prado, 2002). a report by the united nations high commissioner for refugees (unhcr) issued in august 2008 indicates that although 10,000 to 20,000 indians are recorded as displaced each year, many do not register, because they have no information about the process and because they are very far from the place of registration. among the causes of displacement of indigenous communities is the introduction of illicit crops in their territory, mainly coca plantations. when these plantations are sprayed indigenous communities are forced to move to avoid being hit. but fumigation generates a bigger problem: it generates damage to their traditional crops and consequently, there is a serious problem for subsistence food. other causes of displacement of these communities are the fear that their children may be recruited by armed groups, or being part of state megaprojects, causing the militarization of the area and makes it move indigenous communities (ochoa, 2010). also, when control of the area is taken by the “guerrillas”, they block the area and do not let anybody into it. this means that communities are blocked and people cannot leave, cannot pass through the river or bring food to their communities. the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 136 also, the adaptation of indigenous communities to reach the city has graver problems, since many of its members cannot speak spanish, especially women, who generally are responsible for maintaining their culture and customs. but also because for them it is a culture shock and institutions have no means of differential attention to these communities, taking into account aspects such as language, culture and food. the basic pattern of displacement shows that the displaced population does not stray too much from the place of removal, that is, the population tends to move towards the nearest town. if this is not possible, they move to the nearest intermediate cities, and if the security and socio-economic stability are not enough, they seek a bigger city. cases have been documented of several generations of family displacement, where grandparents moved in the fifties of the twentieth century, children in the sixties, and in the nineties the grandchildren. there have also been cases of people who have been displaced five times in four years. this reality makes it very difficult to reconstruct families. professional and social policies which were used in the past were often beyond the current government, and failed to consolidate strategic actions. moreover, even if today we disarmed all the armed groups and ended the conflict, it would take at least 10 or 15 years to finalize the process that affects all displaced populations. v. conclusions with just over three million displaced people, colombia has a huge number of internally displaced and, without any doubt, is one of the largest in the world, entrenched for decades. the armed conflict raging in their society, especially in rural areas where there is little institutional presence has resulted in a constant struggle in those territories between the “guerrillas” and the paramilitaries. the validity of this conflict helps explain the idea of the dispossession suffered and the consequent abandonment of territories by the population, making this sort of internal diaspora known as the internally displaced. the government response is far from optimal because usually massive displacement of communities has produced a new phenomenon in dispute in reception sites, within their own borders: isolation and maladjustment; marginality (and consequent invisibility), confinement and social conflict. this poor response from institutions is further compounded when the dispossession and land abandonment affects indigenous communities, not only in terms of the preservation of their culture, but also in the serious difficulties of relocation, or difficulties to return to their ancestral lands. the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 137 these conditions of poverty, with little prospect of a secure future, whose origin has already been shown, have finally become a structural conflict situation that needs answers in the field of humanitarian assistance, and social benefits that will generate stable and lasting solutions. other factors have been explained, which add to the plight of displaced persons to escape segregation and ghettos. this does not mean that there have not been attempts to fix parts, or at least part of the conflict. in the latter approach between the colombian government and the farc (in press note 2 march 2013) has tried to find a solution to the so-called "agrarian question". this was stated by humberto de la calle, chief negotiator of colombian president juan manuel santos, during the peace talks in cuba, according to which progress was made in the design of instruments to hold land reclamation and illegal access by peasants who lack them, or who possess them insufficiently. however, the farc had not nuanced closed agreements yet, but was working on it. to overcome this crisis, the challenge is to pay attention to the so-called internally displaced and reparations. this is a framework which needs urgent attention. but not only this: colombia must respond institutionally, within the legal framework, allowing economic stabilization of this particular affected population, repairing the damage done to their heritage through restitution or compensation for their losses. this displacement has been systematic and massive, imposing on the colombian government the obligation to design a complex strategy, especially considering the cultural and ethnic diversity of the country. ultimately, after all that has been stated in the preceding pages may set the following concluding remarks: 1. the humanitarian and human rights crisis caused by displacement represent a reduction of the quality of life indices and human rights standards. 2. travel to and arrival in another place does not necessarily imply that the conditions of displaced populations better, or that the humanitarian crisis and human rights is overcome. 3. it is absolutely necessary that the return policy be effective and that the security conditions are too, as well as a sustainable and institutional guarantee not to repeat the action of displacement. it is therefore necessary to repair programs and socioeconomic stabilization institutionally coordinated between the various state administrations. beyond land restitution, land and houses, the process must be comprehensive in nature, which means that it is intended not only territorially in the legal and political rearrangement, but must be accompanied by other processes that contribute to aiding the displaced victims . the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 138 4. it is also necessary to establish a database to obtain broad and flexible information about the victims of forced displacement, farms and abandoned territories and characteristics of the possession of land (owners, holders, or the specific indigenous or afro-colombian populations, among others). 5. it is worth remembering and refining a list of essential and minimum rights that must be guaranteed to all people who are in situations of forced displacement. in principle, these rights are analogous to those enjoyed by the rest of the population, but the specific causes of the displaced condition has put special emphasis on the safety and security inherent in the situation of victims of armed conflict. this is even more important in indigenous communities, characterized by their ignorance of their rights or how to guarantee them. 6. transitional justice must meet essential parameters that allow not only the prosecution of those responsible for the violations but also an indispensable process that allows the return of property and rights of victims and repair for injuries received. it is also essential to articulate a process for reconciliation of communities divided by conflict. references acnur (2008) el perfil de la población colombiana con necesidad de protección internacional. el caso de venezuela. venezuela. castillo, m. (2003) derecho internacional de los derechos humanos. valencia: tirant lo blanch. currea-lugo, v. (2007) “dificultades del derecho humanitario en el caso colombiano”. in: rodríguez-villasante prieto, j. l. et al. derecho internacional humanitario. 2nd ed. valencia: tirant lo blanch. de asís, r. et al (2007) los desafíos de los derechos humanos hoy. madrid: dykinson. escobar, g. et al (2003) migraciones. madrid: dykinson. fitzpatrick, j. et al (2001) human rights protection for refugees, asylum-seekers, and internally displaced persons. new york: transnational publishers. durán garcía, d. a. et al. (2007) desplazamiento forzado en colombia. derechos, acceso a la justicia y reparaciones. colombia. ferreira, m. et al. (2012) colombia entre violencia y derecho. bogotá: ediciones desde abajo. the age of human rights journal, 2 (june 2014) pp. 129-139 issn: 2340-9592 139 gómez del prado, j. l. (2002) pueblos indígenas. normas internacionales y marcos nacionales. bilbao: universidad de deusto. ibáñez londoño, a. m. (2008) el desplazamiento forzoso en colombia: un camino sin retorno hacia la pobreza. bogotá: universidad de los andes. informe sobre las migraciones en el mundo en 2000 (2001), organización internacional para las migraciones, publicaciones de las naciones unidas. jorge urbina, j. (2000) protección de las víctimas de los conflictos armados, naciones unidas y derecho internacional humanitario. valencia: tirant lo blanch. kerr, e. (2010) “desplazamiento forzado: un crimen contra la humanidad”. in: colompbia, peace brigades international colombia, nº 14. marzal, a. et al (2000) los derechos humanos en el mundo. barcelona: bosch. moro, b. et al (2011) desplazamiento forzado, tierras y territorios. agendas pendientes: la estabilización socioeconómica y la reparación. bogotá: programa de las naciones unidas para el desarrollo. ochoa, a. m. (2010) “con los megaproyectos llega la militarización y nos obliga a desplazarnos de nuestros territorios”. in: colompbia, peace brigades international colombia, nº 14. oliva martínez, j. d. (2012) los pueblos indígenas a la conquista de sus derechos. fundamentos, contextos formativos y normas de derecho internacional. madrid: universidad carlos iii de madrid-agencia estatal boletín oficial del estado. quiñones, d. (2010) “mujeres, las más perjudicadas por el desplazamiento forzado”. in: colompbia, peace brigades international colombia, nº 14. torrecuadrada garcía-lozano, s. (2001) los pueblos indígenas en el orden internacional. madrid: dykinson. the interpretation of human rights according to international treaties: notes for their jurisdictional application in mexico geofredo angulo lópez1 abstract: the reform of article 1 of the political constitution of the mexican united states in june 2011, has incorporated into the constitutional text the clause of interpretation according to international treaties on human rights as the hermeneutic criteria which domestic judges must adopt in their verdicts. this clause reflects an evolutionary tendency which the constitutional states are adopting, generating a new understanding of the state function as a whole, especially of the judiciary function. despite this aperture, which enables the application of this type of hermeneutic techniques, it is possible to see how in some jurisprudential criteria a restraining posture is adopted towards international regulatory contents in human rights, leaving aside the possibility of an interpretative process of harmonization keywords: clause of consistent interpretation; international treaties; human rights; constitution. summary: i. the judge’s obligation to elaborate a harmonic process for the interpretation of international treaties about human rights; ii. general approach to interpretation advanced formula from a human rights dogmatic; ii.1. the interpretation of human rights as an open to the public and social power challenge. i. the judge’s obligation to elaborate a harmonic process for the interpretation of international treaties on human rights the reform of article 1 of the political constitution of the mexican united states made in june 2011 has incorporated the clause of consistent interpretation into the constitutional text. this way, the constitutional rule contains a valuable pattern and constitutes a vanguard position by establishing that: “the laws related to human rights will be interpreted according to this constitution and to the international treaties on the matter giving at all times the widest protection to people” (caballero ochoa, j.l., 2012: 105). therefore, the clause of consistent interpretation and the pro person principle are formally established in the constitutional disposition, both mentioned aspects having their origins in the scope of international law and defined as hermeneutic criteria which inform about the scope of human rights (pinto, m., 1997: 163; olano garcía, h.a., 2006: 199). this novel disposition reflects an evolutionary tendency of 1 doctor of law from universidad de jaén (spain), executive advisor at the human rights commission of the state of yucatan (mexico) professor of the faculty of law at the autonomous university of yucatan (mexico), member of the national system of researchers (geofreyangulo@gmail.com). the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 1 the interpretation of human rights according to international treaties opening which present constitutional states are adopting by establishing that international treaties on human rights have constitutional hierarchy and on the other hand, it implies that laws and actions can be controlled according to not only constitutional rights but to human rights as well. this type of clauses or hermeneutic techniques have been incorporated already i other constitutional frames, like the european, which allows to prove that the present tendency is from a ductile and international state. thus, for example, the german constitution points out that: “the rules of international law form an essential part of the federal legal system, they will have priority over domestic laws and will create direct rights and duties for the inhabitants of the federal territory”; the same fundamental law also states: “if in a judicial litigation it was uncertain if a rule of international law forms part of federal law and if it directly creates rights and duties for individuals, the court will have to gather and deliver the enunciating to the constitutional federal court.” in austria: “the rules and laws generally acknowledged by international law are considered part of the federal system.” meanwhile in portugal, in its article 16.2 it is stipulated that: “the constitutional and legal precepts related to fundamental rights must be interpreted and integrated in harmony with the universal declaration of human rights”. meanwhile the spanish constitution of 1978 in its article 10.2 utters that: “the rules and laws related to the fundamental rights and to the liberties acknowledged by the constitution will be interpreted according to the universal declaration of human rights and the treaties and international agreements on the same subjects, ratified by spain”. the greek constitution declares: “the rules and laws generally accepted by international law and all international treaties on the matter once ratified through the legislative process and enforced according to their own dispositions, form part of hellenic law and will have a higher degree of importance when in conflict with domestic law. ireland also accepts that the main and recognized principles of international law as the rule of conduct in ireland’s relationships with other states. meanwhile the italian constitution states that: “the italian legal system shall adapt to the rules and dispositions from international law which are generally acknowledged”. (pfeffer urquiaga, e. 2003: 467-484). all this has influenced the latin american countries which have given constitutional hierarchy to international treaties on human rights, such as: argentina, chile, colombia, costa rica, peru, paraguay and very recently the dominican republic in its new constitution proclaimed in january 26, 2010. it is worth mentioning that in mexico there is legal precedent for the use of this international hermeneutic exercise, in articles 6 & 7 of the federal law to prevent and eliminate discrimination of 2003. these legal advances on human rights were already located before the constitutional reform in a manner that obligates all authorities to act in congruence with international treaties about non-discrimination. it even goes beyond by not only incorporating treaties but also international precedents adopted by the american court and the recommendations of the american commission of human rights. it also includes the pro person principle in the manner that when different the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 2 geofredo angulo lópez interpretations are possible, the one which protects people or groups victimized by discrimination must be preferred. in this sense, meaningful would also be the possibility of establishing in the first paragraph of article one of the constitution the obligation of the mexican state to incorporate a mechanism that would give acceptance and the follow-up to the abiding of the american commission of human rights recommendations and not expect to wait for the mexican state to be sued and a complaint filed to the organization of american states for not abiding by the recommendations of the american commission2 (becerra ramírez, m., 2007: 63-113). meanwhile, interpretative and vanguard principles have been established in the states on the topic of human rights, like the one established in the constitution of the state of sonora which, in its article 4, bis-c., in which the principle of noncontradiction; the clause of consistent interpretation according to international treaties attending to the precedents set by the american court of human rights; the principle of pondering when in a conflict, two or more different human rights might apply for a harmonic interpretation to take place, the same goes for the principle of progressiveness. other federal entities have followed sonora’s example, such as the state of tlaxcala, which has incorporated the aforementioned principles in article 16.b of its state constitution. in this subject, the discussion has revolved around the reach of these constitutional norms of opening for human dignity and international law. particularly, the debate has focused on the following question: does it imply or not with the aforementioned rules and dispositions the incorporation of international law and its dispositions to the rank of constitutional law? some authors claim that, with the reform, the incorporation into the constitution or “constitutionalization” of human rights on the international stage has occurred. others point out that the rule does not imply the constitutionalization of the international regulations, but in fact constitutes a particular figure of quasi-constitutionalization or indirect constitutional efficiency. finally, there are those who have sustained that this has purely hermeneutic consequences. (nash rojas, c., 2010: 166-167). however, the spanish constitutional court’s precedent has adopted a clearer stance. it rejects the idea that rules and dispositions contained in international treaties on human rights may serve as parameters of constitutionality. in this way, the central argument of the spanish constitutional court has been that the disposition from article 10.2 does not bestow constitutional rank to the rights and liberties internationally proclaimed when they are not also contained in the constitution itself, but forces the interpretation of the corresponding precepts of it according to the content of the aforementioned treaties or agreements, therefore in the practice this content turns in a certain way in the constitutionally declared content of the rights and liberties announced 2 about the topic of recommendations resulting from state international responsibility on human rights, the work of certain authors is highly recommended (martín, c., 2004: 79-117) and (corcuera cabezut, s., 2003: 1-112). the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 3 the interpretation of human rights according to international treaties in chapter second, title i of the spanish constitution (stc 36/1991). the main effect of this interpretation of article 10.2 of the spanish constitution will be that, in case of a contradiction between a domestic law and a human rights treaty, the latter will not serve as an argument to justify the unconstitutionality of the domestic law in question, since international law is not considered constitutional law (nash rojas, c., 2010: 167). the spanish constitutional court has pronounced so in its stc 28/1991, in which it states that: “…while constitutional laws recognize rights and liberties, they must be interpreted in accordance to the universal declaration of human rights and the treaties and international agreements on the subject ratified by spain (art. 10.2 c.e.), in any case would a contradiction between a law and fundamental rights turn the treaty “per se” in a measure of constitutionality for the examined law, because such measure would still be integrated by the constitutional precept definer of the legal right or liberty, if interpreted according to the exact profiles of its content, in conformity with the international treaty or agreement” (c 28/19991. b.o.e. 14/02/1991). somehow, this jurisprudence of the spanish constitutional court shows a preference for the constitutionality of fundamental rights against its international opening. facing this international expansion, it is relevant to point out that the mexican constitution has a broader scope of this protection; compared to the spanish constitution, the mexican legislation has two performance parameters: the constitution and treaties, the spanish refers only to treaties. mexican law despite the two interpretive parameters commands the use of pro person principle by applying the standard or interpretation most favorable to the person; the spanish law does not make that distinction. furthermore, human rights standards in mexico include, in accordance with the first paragraph of article 1 of the constitution, those of the commission and of human rights treaties; in spain, only those that the constitution recognizes. furthermore, human rights laws in mexico include, in accordance with the first paragraph of article 1 of the constitution, thereof and those of human rights treaties; in spain, only those that the constitution recognizes. in any case, the example of mexico serves to make a minimum balance of how the inter-american system is forced to open, even more with international scope of reference of rights, than the constitutionality of the tightest fundamental rights at international level of european system, particularly the spanish case which still retains the constitutional primacy over international treaties (ansuátegui roig, f. j., 2007: 147-203).3 however, making reference to some legal precedents, on march 14, 2012, the second hall of the nation’s supreme court of justice, in the constitutional trial in revision 781/2011, decided that when constitutional dispositions on human rights are deemed as “enough”, it is unnecessary to seek answers in the international instruments due to the obligation established by the pro person principle which says that the most 3 about the need of opening of the legal systems of european states as a criterion for regional internationalization and universal, see: ansuátegui roig, f. j., 2007: 147-203. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 4 geofredo angulo lópez favorable dispositions must be considered and this may satisfy the constitutional norms as well. it has been established in the following “jurisprudence 2º. xxxiv/2012 (10a.) human rights. their study since the reform to constitutional article 1º, published in the federation’s official diary on june 10, 2011, does not necessarily imply that international instruments should be checked, if it results enough to check the considerations they have about the political constitution of the mexican united states”, which points out that: “according to what has been established at the article one of the political constitution of the mexican united states, since the reform published in the federation’s official diary on june 10, 2011, in attention to the pro person principle, it doesn’t result necessary to consider the content of international treaties and instruments that from part of our legal system, if it is enough the consideration of human rights estimated to be violated stated in the general constitution of the republic and therefore it is enough the study of the constitutional precept that considers the situation to determine the constitutionality or not of the act that is complained about”. (underlining added). in these argumentative lines what we see is a restrictive posture of the application of the clause of consistent interpretation, by taking the supreme court into account, an essential element that eduardo ferrer points out, in the sense that the consistent interpretation is not about an imposition of the international law over the domestic one, but of an interpretative process of harmonization which implies even in some occasions, stop applying the first one, by resulting of greater protective reach the domestic law, according to the pro person principle, and also derived of the general obligation of respecting the rights and liberties considered in international treaties, and not of considering as the supreme court does as “unnecessary” the contents of international treaties. (ferrer mac-gregor, e. 2012: 358-359). the consistent interpretation either used to determine the unconstitutionality of a law, or to apply it to a specific case when it resulted more protective of the person’s rights and liberties it must be understood as process of harmonization, it is not about “sufficiency” or of “need”, but of a holistic study of rights, meaning, the interpreter must seek an interpretation that allows to “harmonize” the “domestic and the international law”. it is not about two successive interpretations (first the constitutional consistent interpretation and then the one according to the international treaty), but of a consistent interpretation that harmonizes both. when the constitutional formula says that human rights laws will be interpreted “consistently with “this constitution and international treaties…”, the conjunction “and” grammatically constitutes a “binding conjunction”, that works to reunite in a single functional unit two or more homogeneous elements by indicating their accession. from there we can conclude that this clause meets with the “hermeneutic function” need for harmonization. and amongst the the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 5 the interpretation of human rights according to international treaties possible consistent interpretations for harmonization, the interpreter must choose for the widest protection. (ferrer mac-gregor, e. 2012: 365). in the words of bidart campos, it constitutes a “conciliatory interpretation” as a double highway, therefore making an interpretation “of” the constitution (human rights of constitutional and international source) and “from” de constitution downhill with the sub constitutional law, whose interpretation must be consistent with the constitution and international treaties. (bidart campos, g., 2003: 388). the “principle of harmonization” on international subjects has been established by the united nations’ commission of international law by studying the issue of “fragmentation” of international law and it consists in the fact that when several laws on the same subject exist such laws must be interpreted as much as possible in a manner that only one series of compatible obligations is established. indeed, it is considered in numeral 29 of the american convention of human rights, the pointing that no disposition in that treaty may be interpreted to “exclude other rights and legal guarantees that are inherent to the human being of that result from the representative democratic form of government” o “to exclude or limit the effect that the american declaration of men’s rights and duties and other actions.” attending the referred thesis, it is important to point out that even though it might not be categorically stipulated in constitutional article one that international treaties must be consulted, it is important to consider international treaties as background arguments from which a controversy must be solved and not consider them as simple additional considerations from the essential argumentative work of judges. in addition, the supreme court of justice would have to clarify which are going to be the standards of interpretation used by judges. besides, the supreme court of justice would have to clarify which criteria will be used for interpretation by judges to determine when the constitutional dispositions on human rights will be enough and it will be unnecessary to interpret the contents of international treaties. we consider that with this interpretation a resistance from the supreme court to apply the instruments of international origin is proved, for which it is timely to assure that the constitutional law does not only authorize, but in fact forces all judges without exception to directly interpret and apply international law on human rights. the breach of this mandate may generate the state’s international responsibility for actions or omissions when these mean a violation to international compromises derivatives from treaties on human rights. judges, as a part of the mexican state’s system, are also submitted to signed and ratified international treaties by mexico, which forces them to look out for the effects that the dispositions of international treaties are not restricted by the application of laws, authority actions or omissions, etc. in other words, the judiciary must exercise a “control of conventionality.” in addition to the principle of harmonization, another postulation incorporates itself which develops a primordial function, the one that constitutes the “material or guarantee principle” regulated by the hermeneutic criterion favor libertati, which tells us that rights must be interpreted in the widest way possible for them to be effective, as all interpretative difficulties related to human rights cannot be solved with the full the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 6 geofredo angulo lópez interpretation of the international treaty, because many times, both the treaty’s dispositions and the constitution’s regulate the same thing, meaning that, it is not more precise or more protective, but having both the particular right written on them and enounce them in the same terms. in these cases we consider that the interpretations from international courts in certain rights must be appealed to, also to the doctrine precedents that have been applied on different cases solved by the united nations’ committees enabled to obtain individual communications about human rights violations contained in the respective international treaties, because binding effects for domestic systems are born from their decisions. in this way we can see a clause of open interpretation with consistency not only with international rights, but also with international precedents, as eduardo ferrer mcgregor has said in his definition of consistent interpretation, that international treaties and international precedent make an indivisible binomial. so he defines consistent interpretation as an “…hermeneutic technique with which rights and constitutional liberties are harmonized with values, principles and rules contained in international treaties on human rights signed by states, as well as by precedents from international courts (and in certain occasions other resolutions and international sources), to achieve its greater efficacy and protection.” (ferrer mac-gregor, e. 2012: 358). nowadays the importance of the in dubio pro libertati principle cannot be argued, and favouring fundamental rights, because its aim, as stated by professor perez luño, is to achieve the maximum expansion of the constitutional liberties system; principle that, in relation with the rule, increases the powers of the judiciary interpreter. (pérez luño, a., 1984:101-124)4. we can affirm that this is the challenge and the most important practical note for judges, because today it is acknowledged by the scientific community that law in general and most of all constitutional law and international treaties containing human rights, contain a really vague language, (endicott, t., 2003: 179-189), therefore, legal indetermination which affects fundamental rights of a certain constitution, affects human rights acknowledged in international treaties even more, because generally in international treaties, rights normally appear numbered with no specification about the concrete meaning, therefore the role of interpretation from judges is the key (pecesbarba, g., 1999: 578-579). about the wavering of law in the works of (endicott, t., 2007: 237-270), it reinforces the need to design a methodology for the making of harmonizing decisions in cases of uncertainty or rights collision; hence the importance of the use of criteria emanated from international doctrine precedent in the argumentative processes of the mexican judges. (mijangos y gonzalez, j., 2006: 420). 4 other authors related to the subject such as (castaneda otsu, s., 2002:227), offers us similar postures. in the same way, the works of (caballero ochoa, j.l. 2013: 27), help us have a greater comprehension, meaning and reach on the clause of consistent interpretation according to national treaties on human rights as mexican legal operators. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 7 the interpretation of human rights according to international treaties if with the reform a “constitutionality block” is established made of all those laws that allow us to carry out a constitutionality control, meaning that the legal systematization of all materially constitutional laws (constitution, international treaties, pacts, protocols and ordinary legislation); it is transcendental that steps are taken towards a block of conventionality, a block of rights integrated that mexican judges should take into account. (ferrer mac.gregor, e., 2010: 172). that is, speaking more specifically, it has to be pointed out that the obligation for the mexican judiciary power of embracing the doctrine precedents from international courts, especially those of jurisdictional nature, like in the case of the inter-american court of human rights, but also, the interpretative guides for the application of international treaties, known as soft law. in the subject of human rights, the term soft law, of international origin, makes reference to a certain type of instruments or rules that, due to their process of creation and who dictates them, do not have the formal and legal characteristic that does correspond to the laws contained in international treaties. however, the soft law finds itself in a threshold of political and moral obligation, because international laws are bound by principles such as jus cogens (imperative rules of international law in general). (scjn. 2012: 1-2). several rules exist like that, such as the general observations from the monitoring committees of international treaties from the united nations system and the advisory opinions of the inter-american court of human rights, principles and declarations; rules that must not be considered as strange and unrelated to the mexican legal order, but that must be applied by judges as any other constitutional, treaty, rule or compulsory precedent rule or law. so it has been established recently by the third referee court of the twentyseventh circumscription in the thesis: xxvii, 3º.6 cs, “soft law”. the criteria and directions developed by international organs in charge of promoting and protecting fundamental rights are useful for the states to guide de practice and improvement of their institutions in charge of watching, promoting and ensuring the unrestricted addiction to human rights. that on the particular issue points out that: “in conformity with article one of the political constitution of the mexican united states and its protective reach on human rights, the agents of the mexican state not only should observe the compulsory international normative and the inter-american precedent, but that in virtue of the maximum rules of universality and progressiveness, it must be admitted that the development of principles and practices of international law of non-binding nature considered in instruments, declarations, proclaims, uniform rules, directions and recommendations accepted by most states. such principles are identified by the doctrine as “soft law”-in english-, light, ductile, soft and it is used due to the sense of lack of effective obligation and in opposition to “hard law” or positive law. now, with independence of the obligation that they imply, its content may be useful for states to individually guide the practice and improvement of its institutions, which watch, promote and guarantee the unrestricted addiction to human rights. without it the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 8 geofredo angulo lópez implying the ignoring of the primal following of the domestic national order, nor the principle of subsidiarity of supranational laws, according to which, the international protection of human rights is applicable after exhausted the domestic resources and only then, may individuals resort to it, because beyond the fact that the federal constitution and international treaties do not relate in hierarchy according to the country’s maximum court in the precedent p./j. 20/2014 (10º.)(*), the consultation of non-binding directions only reports practical effects derived from experience of the international organizations in charge of promoting and protecting fundamental rights”. (underlining added). now, how can we interpret and give the rule or law a certain meaning through all possible interpretation criteria, if we ignore the existence of legal instruments and precedent criteria? this leads us to another of the great challenges for the judiciary power in this subject and a fundamental and practical note, that is to say, the knowledge obtained from the content and reach of international treaties and from the precedents of international courts and interpretative rules by judges (soft law). however, the application of the human rights treaties deserve a special mention, in the past few years, slowly but surely, the organs of the mexican judiciary federal power and specifically from the referee circuit courts by incorporating in their sentences, human rights considered in the american convention and the precedent criteria of the inter-american court. that is how federal courts have made use of the inter-american heritage on human rights normally for novelty and protective interpretations. about the precedents coming from inter-american courts talking about human rights and their reception by mexican federal courts. (mijangos and gonzalez, j., 2006:411-424). unquestionably, with the obligation of judges to interpret consistently with international treaties on human rights, several duties arise regarding their application by the judiciary power, a generic duty to respect, protect and guarantee rights contained in international treaties, according to the nature, sense and reach given to the rules themselves; also the modification of administration practices and of judiciary criteria. the use or management of international treaties and precedent criteria, what is done with them, has to be general for all judges from the judiciary power; besides the minimal standards of factual identity must be reached with the matters judges solve and find the criteria that occupy the same protected rights which are being interpreted arriving to adequate conclusions with the object and purposes of treaties that need to be attended. in addition, it is primordial to find uniformity in the use of international treaties and the value given to rights contained in the treaties themselves, in the judges’ projects. ii. a general approach to interpretation advanced formula from a human rights dogmatic the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 9 the interpretation of human rights according to international treaties certainly there are many rules, principles or objective criteria of interpretation,5 so it is difficult to find a fully effective formula that can be applied to specific cases; however when it is interpreted in accordance with international treaties certain methods are followed, such as the general rule of interpretation regulated in article 31 of the vienna convention on the law of treaties between states and international organizations or between international organizations. this systematic articulates with the fact that the techniques of interpretation contained in article 31 when identifying or determining significance or meaning to the provision of a treaty shall be interpreted in good faith in accordance with the terms of the treaty in the context and taking into account the object and purpose. let's see: “general rule of interpretation. i. a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and considering its object and purpose. 2. for the purposes of the interpretation of a treaty. a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty: the context, in addition to the text, including its preamble and annexes comprise b) any instrument which was made by one or more parties celebrate the treaty and accepted by the other parties as an instrument related to the treaty; 3. together with the context, shall be taken into account: a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions: b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding the interpretation of the treaty: c) any relevant rules of international law applicable in relations between the parties. 4. given to a term a special meaning if it is established that such was the intention of the parties". (bold added). the following criteria derive from general rule of interpretation: textual criteria (t-c) contextual criteria (c-c) object and purpose (o-p) the function of these criteria as established on the above provision is that when interpreting, i.e. attributing a sense or meaning to the text of an international treaty, arguments or interpretation techniques to be applied in one combined operation are the three criteria we have noted: the text, context, object and purpose. the function of these criteria as established on the above provision is that when interpreting, i.e. attributing a sense or meaning to the text of an international treaty, arguments or interpretation techniques to be applied in one combined operation are the three criteria we have noted: the text, context, object and purpose.6. 5 the inter-american court of human rights, in its advisory opinion oc-3/83 of september 8, 1983, stated that the method of interpretation contained in the vienna convention is covered by the primacy of the text, i.e., to apply objective criteria interpretation. 6 case gonzalez and others ("cotton field") vs. mexico, inter-american court of human rights, judgment of 16 november 2009, para. 42, p, 12. cf.. "other treaties" subject to the advisory jurisdiction of the court (art. 64 american convention on human rights). advisory opinion oc-1/82 of september the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 10 geofredo angulo lópez since the identification of these three criteria we approach to develop a general formula advanced interpretation through the combination of these criteria and other values represented in the following formula: formula the approach of the formula presented is linear and punctual in their variables; however, this can be considered a first step towards the design of a more elaborated model that considers more variables and different relationships between the application of criteria and an interpretation from the scientific treatment of human rights. (𝑛𝑛𝑛𝑛) + 𝑛𝑛 − 𝑐𝑐 𝑐𝑐 − 𝑐𝑐� (𝑖𝑖) + 𝑜𝑜 − 𝑝𝑝 ~𝑟𝑟 � [𝑁𝑁] definitions this section defines the concepts necessary to understand the model proposed. the definitions presented here can be contrasted with the formal criteria that are used in mathematical models. (nf) “normative formulation” it is the norm that expresses the text. (n-c) “normative criterion "determines a meaning to the specific normative statements. (c-n)¹ “textual criteria”. (c-n) ² “lógical criteria”. (c-n) ᶾ “historical criteria”. (c-n) 4 “systematic criteria” (c-c) “contextual criteria" assigns a meaning or normative meanings taking into account axiological categories, principlist, extralegal factors and the global context of constitutional and conventional law ". (i) "interpretive statement" is the product of the activity to interpret and ascribe meaning to the (n-c) y (c-c) 24, 1982. series a no. 1 paragraph 43-48; restrictions to the death penalty (arts. 4.2 and 4.4 american convention on human rights). advisory opinion oc-3/83 of september 8, 1983. series a no. 3, para 47-50; proposed amendments to the constitution of costa rica related to naturalization. advisory opinion oc-4/84 of january 19, 1984. series a no. 4, paragraph 20 -24, and, among others, velásquez rodríguez v honduras. preliminary objections. judgment of june 26, 1987. serie c no. 1, paragraph 30. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 11 the interpretation of human rights according to international treaties (o-p) “object and purpose” determines the content and scope of a right, principle or value against the particular case to reach a [n] (~𝐫𝐫) ”rational approach” justifies the passage of the interpretive statements giving reasons for reaching the standard [n] [n] " decision norm”7 is the end result of interpretation. a description and a concise analysis of the articulation of each of the variables and their relevance to the interpretative activity of judges is presented. applicative modeling of variables: emphasis on contextual criteria (c-c) there is no doubt that today's interpretation is a fundamental component in the law that demands a cognitive activity and practice also;8 so that we can say that the interpretation from the point of view neoconstitutional, is a fundamental task of legal operators as a norm [n] 9 at least from a legal doctrine of human rights-, is the interpretation that gives a tribunal to one or several legal provisions of a normative formulation (nf), which it is the norm expressing the text, and can be: constitutions, laws, codes, international treaties; which are combined with normative criteria (n-c), (grammatical or textual, logical, historical and systematic)10; criteria that determine a meaning to the specific policy statements, or justifying the meaning assigned to a legal provision. it is important to note that these notoriously plausible interpretation criteria and methods used by legal operators are bounded within a legal system with new paradigms of interpretation for the solution of essentially controversial cases especially on human rights;11 as a result of admission to the constitution of principles, values and standards 7 a decision norm [n] it fully out the interpretation process to its peak, i.e., the legal norm occurs to apply to a particular case. this application is made by formulating a court decision, a judgment that expresses the decision rule [n]. thus, the judge is the one that goes beyond mere interpretation and production of legal norms, to extract therefrom decision rules; this type of judge is that kelsen called "authentic interpreter", ie the judge. (grau, eros), 2007:18). 8 on the implications of the interpretation and argumentation in the modern conception of law vine; (atienza, m., 2007). by the same author, vine; (2011). 9 to guastini the "disposition" is any statement pertaining to a source of law and considers that the "norm" means the content meaning of the provision, its meaning, which is a dependent variable of interpretation. in this regard, the provision is the object of the interpretive activity, and the standard, its result. on the concept of "standard" and "disposition" see the work (guastini, 2012: 10-11). 10 regulatory criteria are rooted in savigny, who highlighted the existence of four criteria: grammatical, logical, historical and systematic,, (savigny, f. 2009) 11 the literal method. in the letter of the law is nonexistent weighting principles. the systematic approach, which seeks a reiteration in the vision of strong and perfect legal system, lacking gaps and contradictions. the originalist method. in which the constitutional originalism is now a legal the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 12 geofredo angulo lópez of interpretation that generated the constitutional reform of june 10, 2011, a change required by the interpretive dynamic judges to strengthen the material content of the constitution, and therefore the role of argumentation and application of modern hermeneutical methods in judicial proceedings. indeed, konrad hess notes that the methods of constitutional interpretation should not be limited to those classic criteria of normative interpretation as (the literal, teleological, systematic and historical) but should incorporate a set of principles, criteria, methods and novel reasoning inform the hermeneutical exercise of constitutional judges.12 in this sense it propose the need for the application of contextual criteria (c-c) or systematic, from which normative meanings are assigned taking into account the identification of one or more norms, purposes, values, constitutional principles are more abstract and in which moral, legal, political and social objectives are expressed from a universal character. based on these criteria the interpreter must seek the reasonable sense of normative formulation (nf) within the context of conventional systemic constitutional law and subject to a systematic and purposive interpretation. also in the contextual criteria (c-c), when interpreting takes into account the social, axiological arguments, situations and certain requirements, human behavior, sociological use of the norm –as you well holds the inter-american court– the interpretation has to be coupled with the changing times and current living conditions.13 the application of contextual criteria of the position that human rights are not only normative legal instruments with an ethical justification, but they are also a social reality. in this sense they help us measure the effectiveness of the rule, the influence of law on social reality, or conversely the impact of reality on the law.14 thus, for example, a contextual approach has been expressed in some way in the following jurisprudential reasoning of the supreme court in the "thesis: 1ª /j.43//2015 (10ª.) marriage. federal law of any entity that, on one side, consider that the purpose of that one is the procreation and / or that define as held between a man and a woman, is unconstitutional”, that sustains thereon: interpretation methodology, based on a historicist worn xix century romanticism. (flores saldaña, a., 2014: 113-114). 12 on neo-constitutional interpretation models (hesse. k., 1992: 45-47). 13 the inter-american court in the judgment in the case of the "mapiripán vs. slaughter colombia has argued that human rights treaties are "living instruments whose interpretation must consider the changes of the times and current living conditions. such evolutionary interpretation is consistent with the general rules of interpretation enshrined in article 29 of the american convention, as well as those established by the vienna convention on the law of treaties "inter-american court of human rights (case" slaughter of mapiripán vs. colombia), judgment of 15 september 2005, par. 106, p. 90. http://www.corteidh.or.cr/docs/casos/articulos/seriec_134_esp.pdf accessed on may 3, 2016. 14 on the social reality of human rights as a postulate of three-dimensional theory (peces-barba martínez, g., 1999: 84). the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 13 the interpretation of human rights according to international treaties “consider the purpose of marriage it is procreation constitutes a measure not suitable to fulfill the unique constitutional purpose for which the measure could obey: the protection of the family as a social reality. pretending to link the requirements of marriage to the sexual preferences of those who can access the institution of marriage to procreation is discriminatory ... "(underline and bold added) we see the court's interpretative statement (i) to come, that is, to be interpreted as unconstitutional all legal provisions of the states to establish that the purpose of marriage is procreation for being exclusionary and discriminatory; the court disapproves procreation as incapable as not suitable to fulfill the constitutional purpose for which can be adjusted this provision, which is the protection of the family as a social reality, which requires that in this context homosexual couples are in a equal or similar position to that heterosexual couples in access to marriage. in this criterion we see the reasoning changes in relation to the context; what was "rational" in the past, ie, the same-sex marriage whose purpose was procreation; it is now "irrational" because this category is not inherent in the rational design of what marriage is currently based on the jurisprudence of the court. also the "contextual approach" can be used as a parameter to determine the international responsibility of a state for acts committed by individuals or to measure their response or behavior in a situation where there is a real or immediate risk;15 thus we see how the court in the case gonzalez and others ("cotton field") vs. mexico uses the "context" and analyzes all the factual context of the case and the conditions under which the facts were given for attributing to the state and engage its international responsibility accordingly. the court warned in his remarks that the facts of the case were generated within a context of widespread and pervasive crime on violence against women in ciudad juarez, mexico; a social, political and economic context of violence and systematic discrimination against women within which occurred murders and disappearances of women reported 2003 cedaw and amnesty international, the ngos recorded about 400 cases in the period 1993 -2003.16 fundamental to the court is how respondents officials and state authorities even knowing this context, minimizing the problem, showing a disinterest in diligently address complaints of disappearances of women; and to set 72 hours to officially declare a woman missing in this context is irrational for the court, ie, the state did not act reasonably in its obligation to ensure in this context. precisely in this regard, the court notes that: “…the state, given the context of the case, was informed that there was a real and immediate risk that the victims were sexually abused, subjected to ill-treatment and 15 the scope of the context to determine the international responsibility of a state see the gonzalez case and others ("cotton field") vs. mexico, inter-american court of human rights, judgment of 16 november 2009. http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_esp.pdf accessed on april 26, 2016. 16 report on mexico produced by cedaw, supra note 64, folio 1928 and amnesty international, intolerable killings, supra note 64, folio 2253. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 14 geofredo angulo lópez killed. the court considers that there arises a duty of due diligence strict regard to reports of missing women to such context regarding their search during the first hours and the first days…”17. (underlining added). this breach of the obligation to ensure is serious because of the context of which the state had knowledge; context which placed women in a situation of extreme vulnerability and in which the three killings occurred based on gender that gave rise to this case. it is important to note that the context is used by the court as a parameter to measure how serious was the real and immediate risk, and if as a result of state action in this context or not there was actual harm by failing to establish the general prevention measures to guarantee the personal integrity and human rights of women victims of this context. likewise they can be used as contextual approach "systematic violence" exercised against women as absolving measure when judging in criminal proceedings for murder; precisely the argument and legal interpretation with a gender perspective requires an argument that goes beyond the application of a rule to a particular case; involves questioning the supposed neutrality of standards, the establishment of an adequate legal framework to solve in the most attached to human rights and equality and non-discrimination; also it is taken into account as a criterion of legitimacy of the judicial exercise to justify differential treatment and give reasons why it is necessary to apply certain rules to a given context or facts18. in this sense, although the meanings are connected, what is is to extend the understanding, determine the scope, extent, sense or meaning of any normative formulation (nf) assigning a value to each of the criteria normative (cn) and contextual criteria (cc) to result from this process of interpreting an interpretative statement (i) which is the product of the activity to interpret and ascribe meaning to the normative standards and contextual.19 phrasing interpretive (i) to be confronted with the object and purpose (o-p) that will determine the content and scope of rights, values and constitutional principles, and thus its effective ness, such as: determining the value of equality between spouses;20 the scope of the principle pro person to distinguish the favorability of a rule or the least restrictive interpretation, the scope of the principle of universality to know when to expand the number of holders of a human right. similarly, the object and purpose (o-p) help us determine what is "family", to distinguish the "preferred position" of the subjects in the case to protect the right to selfimage and to privacy / privacy; or to determine whether the "procreation" is inherent in 17 case gonzalez and others ("cotton field") vs. mexico, par. 283: 74. 18 on how to judge gender perspective see protocol for judging with a gender perspective, realizing the right to equality, (supreme court of justice of the nation, 2015). 19 on the concept and uses of interpretive statements vid; guastini, riccardo, studies on the legal interpretation, (guastini, 2012:10-11) 20 on the content and scope of equality between spouses, see the precedent of the supreme court of justice of the nation in isolated thesis no.. 1ª. lxiii/2016 (10ª.) published on march 11, 2016 in the gazette of the federation judicial weekly; https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx consulted on page 21 april 2016.. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 15 the interpretation of human rights according to international treaties the rational design of the figure of marriage;21 also, the object and purpose (o-p) will help us to justify the "relevance judgments"22 before a different legal treatment of two people and not conflict with the principle of equality and non-discrimination; to set limits to an "autonomy" that wants to manifest in the case of the legalization of marijuana use for recreational purposes;23 or, what it is to be "person" in the case of establishing the scope of human dignity in the development of emerging technologies to improve the lives of human beings, such as computers and the internet, biomedicine, neuroscience, nanoscience and nanotechnology and robotics; 24 to, have a rational approximation (~ r) give us the reasons for the passage of the interpretive statements to a decision norm [n], substantiated, adequately justified in a particular case. from this scheme, the interpretation becomes subject to interpretation, and that interpretation is a polysemy (ferrer, mac-gregor, e., 2005: xv), that is, we must understand the standard in not only a regulatory system but also, as says hesse taking into account dimensions or theoretical categories that give it meaning, that give coherence and to hesse interpret is "concretize" precisely the interpretation must be linked to the object and the problem, which is why konrad hesse interpretation is 'concretization' (konkretisierung); in this sense for hesse "which does not appear clearly as the content of the constitution it is to be determined by incorporating the 'reality' whose management it is"(hesse, k., 1983: 43-44). so that concretization is to complete, adjust, give coherence to incomplete provision in a normative formulation through a creative activity, resulting in a dynamic performer in accordance with the constitutional and conventional rule. but the concretization is not the goal that it wants to reach; the concretization only reaches its fullness, when the decision norm [n] is defined able to resolve the conflict which is the essence of the case. that's why for grau interpretation and concretization are part of the same process. there is no currently interpretation of the law without concretization, as this is its final stage. (grau, e., 2007: 19). in sum, which aims this general formula advanced interpretation is thereby contribute it is minimal to the judges use these criteria in their practical reasoning way, allowing them to determine the scope and meaning of one or more legal provisions normative formulations , and hereby apply them appropriately to reach a constitutional outcome and conventionally correct, ensuring its objectivity, legal certainty and predictability and a much broader perspective of the principles and postulating values human rights within this new paradigm of contemporary legal reasoning. 21 on the purpose of marriage see the jurisprudence of the supreme court of justice of the nation, thesis: 1st /j.43/2015, first chamber, tenth epoch, published friday june 19, 2015 in the gazette judicial weekly federation; https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx page consulted on 26 april 2016. 22 on relevance judgments should see the work of (laporta f., 985: 20-24). 23 on regulation of consumption of marijuana for "recreational or recreational purposes", see the decision of the first chamber of the supreme court of justice of the nation of amparo in review 237/2014. 24 on the problems and demands posed by the current law in the context of emerging technologies (de asís, r., 2015). the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 16 geofredo angulo lópez ii.1. the interpretation of human rights as an open to the public and social power challenge however, interpretation is no longer an activity of the judge, rather, it originates in all levels of the legal system, through a gradual process of identifying standards, general and abstract of the constitution to the most particular and concrete until the individual mandate of the judge or any state authority. clearly, from the constitutional reform of 2011 the interpretation and application of constitutional norms and principles is no longer reserved only for judges; so we see in article 1 third paragraph of the mexican constitution expressly states the obligation of all authorities “[…]to promote, to respect, to protect and to guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressiveness […]”;so that the response of the authority before a particular event in which they have to safeguard the observance of human rights must apply these interpretive guidelines that maximize performance under these fundamental principles of international scope, extending in this way for all kind of authority including the duty to apply administrative control of constitutionality / conventionality. in this sense the court in the judgment of monitoring compliance with the gelman case vs. uruguay from february 24, 2013, determined that the scope of conventionality control ex officio is not reserved solely for legal operators, but extends to any authority of direct or indirect democratic representation having as action limit the scope of its powers. in its judgment the court referred to in paragraph 66 states that: “[…]when a state is party to an international treaty such as the american convention, all its organs, including its judges and other bodies linked to the administration of justice at all levels, are also subject to the treaty, which requires them to ensure that the effects of the provisions of the convention are not affected by the application of rules contrary to its object and purpose, so that judicial or administrative decisions do not illusory full or partial compliance with international obligations. that is, all the state authorities are obliged to exercise ex officio "conventionality control" between domestic norms and the american convention, in the framework of their respective competences and the corresponding procedural regulations. in this task, they should take into account not only the treaty but also the interpretation thereof made by the inter-american court, final interpreter of the american convention”.25 (underlining added). in this sense, häberle through his thesis of constitutional interpretation as a public process and the thesis of the open society of constitutional interpretation, diametrically increases the radius of performers, including all public powers, (judges, legislators, managers, lawyers, public institutions, citizens, public bodies, civil society, etc.) insofar as they are key players as open as the criteria pluralistic society. in this sense the concept of 25 inter-american court of human rights, judgment of monitoring compliance with the gelman case vs. uruguay from february 24, 2013, par.. 66:19. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 17 the interpretation of human rights according to international treaties interpretation is based häberle with the following formula: who lives the norm [n] (co) also plays. in this sense, for häberle interpretation must go beyond a directed activity consciously and intentionally to understanding and understanding of a norm [n] (from textual criteria ), it takes a broader interpretation, more realistic concept where public powers above are included. while the responsibility lies with interpreting constitutional justice ultimately interpretive theory has to be guaranteed from a democratic theory and thus interact. in short for häberle there is no interpretation of the constitution but there are active citizens where public powers referred to above are included. (häberle, p., 2008:31-32). thus, specific challenges for the judiciary and public powers to these guidelines become relevant from the constitutional reform are many, human international law has been consolidating in a paced manner, that is why a continuous capacitation by the judiciary power is needed and it reflects upon the jurisdictional and professional activity of its members. the nation’s supreme justice court had already interpreted in the file “several” (scjn. 912/2010) the relationship between the precedents from the inter-american court of human rights when sentences where the mexican state are a part of, and the guiding effect of the resolutions where it is not. in this sense, and attending the solved by the supreme court in the thesis contradiction (scjn. 293/2011: 96), it will be primordial to study the reach of such criteria, guiding and bonding of the precedents of the court, to obtain the instruments that help use them in domestic sentences. 26 it is important to indicate that international jurisprudence is a useful tool when it comes applying and interpreting human rights, both those recognized in the constitution as in international treaties. meanwhile in the results of the contradictory thesis 293/2011 the assumptions have been established within which they must be addressed, observed and applied the jurisprudence of the inter-american court of human rights, the iachr court has given some guidelines about the case castañeda gutman vs. united states of mexico, the court itself that can be taken into account by the judiciary power as effective tools that give greater clarity all that it implies. (castilla juarez, k., 2010: 219-243). besides in this way, we postulate the thesis of obligation by the jurisdictional organs to apply the consultive opinions emitted by the inter-american court, considering that in this function, the court has emitted criteria in the interpretation of certain articles of the american convention of human rights and other international treaties, what is what dimensions the jurisdictional work of protecting people’s human rights. for example the opening to precedents from international courts, the spanish constitutional court in the /stc 36/1984) established that the precedent from the european court of human rights might be understood within the mentions of article 10.2 c. it was confirmed in the (stc 114/1984), in the precedent of said court that the valid criterion considered for the interpretation related to (art. 10.2 ce). since then the spanish constitutional court has used the precedents from the european court of human rights as a criterion of interpretation for numerous sentences. 26 about the binding of precedents from the inter-american court of human rights and their derivative reach, (scjn.293/2011:96) check (angulo lopez, g., 2014: 1-26). the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 18 geofredo angulo lópez facing the new conditions established by the supreme court of justice regarding the inter-american court’s precedent, we await the necessary adjustments that the new international scenery offers and that precedents acquire practical use for mexican judges. furthermore, we consider the use of the conventionality control as an invaluable instrument for judges to be able to apply the clause of consistent interpretation. the control of conventionality is an institution, a debugging mechanism created by the international courts with the objective of having domestic courts to evaluate and compare domestic law with supranational law in order to look after the useful effect of international instruments, exercising an ex officio control, meaning that, an analysis of normative confrontation of internal law (local laws, constitutions, constitutional reform projects, administration actions, etc.) with the american convention, being competent the inter-american court of human rights on an international location and the internal judge in a national location. this diffuse control of conventionality has been developed by the interamerican court of human rights since 2006, since the case almonacid arellano and others c.chile, and with the sentence of the case radilla pacheco vs the mexican united states of november 23, 2009, the one that distinguishes itself for being the first resolution dictated against the mexican state in which the judiciary power is directly bound to the obligation of repair measures, as well to apply a conventionality control. (rey cantor, e., 2008: lii-liii). we can’t deduct importance to the seven sentences emitted by the inter-american court against the mexican state between 2008 and 2010 stand out for the lack of effective judiciary mechanisms for the defense of human rights. these are: castaneda gutman, sentence of preliminary exceptions, background, repairs and costs, from november 23, 2009; case fernandez ortega and others, sentence of preliminary exceptions, background, repairs and costs, from august 30, 2010, case rosendo cantu and other, sentences of preliminary exception, background, repairs and costs, from august 31, 2010; case cabrera garcia and montiel flores, sentence of preliminary exception, background, repairs and costs, from november 26, 2010, case garcía cruz y sánchez silvestre, sentence of background, repairs and costs, from november 26, 2013. (aa.vv. 2010: 1-200). i believe that the decision in this topic that the inter-american court offers in the radilla pacheco case is far more than acceptable, perfectly usable in very situation mentioned, regarding consistent interpretation, in the sense that the conventionality control means the use of an international treaty, in this case the inter-american convention of human rights (pact of saint joseph) uses a parameter of control to consider their compatibility with laws, acts and omissions from a certain authority. precisely the context in which it applies this conventionality control finds itself immerse in article one from the constitution and has a particularity, because it forces judges to harmonize the rights which have a constitutional basis with the ones acknowledged in international treaties. and from the same it results that if a contradiction should arise, the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 19 the interpretation of human rights according to international treaties laws should adopt the stance that favors humans the most. (carbonell m., 2013: 20-60). in this transit towards the constitutional avant-gardism, it is no longer adequate for an interpretation of the present system of fundamental rights, the positivist approach, ciphered in a mechanic attitude based on syllogistic conclusions, but a greater participation from the interpreter throughout the design and development of the status is needed. human rights no longer fulfil with their concretion, the demands of values higher than the legal order, such as dignity, equality, freedom, solidarity and others which must be acknowledged positively and correctly interpreted and guaranteed through the procedural way in the states, in both domestic and international levels in order to imbue them with effectiveness. references aa.vv., (2010) sentencias de la corte interamericana de derechos humanos, 1ª ed. méxico d.f., comisión nacional de los derechos humanos. angulo lópez, geofredo, (2014) “la ductilidad como núcleo esencial del derecho: la reforma al artículo 1° de la constitución mexicana” en revista de estudios jurídicos, n° 14, universidad de jáen, españa, 2014, pp. 1-26. ansuátegui roig, francisco. j., (2007) de los derechos y el estado de derecho. aportaciones a una teoría jurídica de los derechos. bogotá, universidad externado de colombia. atienza, manuel, (2007) las razones del derecho. teorías de la argumentación jurídica, méxico, iij-unam. _______ (2011) argumentación constitucional. teoría y práctica, méxico, ed. porrúa. aragón reyes, manuel., (1896) "la interpretación de la constitución y el carácter objetivado del control jurisdiccional", en revista española de derecho constitucional, n. 17. becerra ramírez, manuel, (2007) la corte interamericana de derechos humanos a veinticinco años de su funcionamiento. méxico, d.f., iij-unam. bidart campos, germán, j., (2003) el derecho de la constitución y su fuerza normativa. méxico, ediar-unam. caballero ochoa, josé. l. (2013) la interpretación conforme. el modelo constitucional ante los tratados internacionales sobre derechos humanos y el control de convencionalidad. méxico, d.f., ed. porrúa. ________ (2012) “la cláusula de interpretación conforme y el principio pro persona (artículo 1°., segundo párrafo, de la constitución)”, en carbonell, miguel., [coord.] la reforma constitucional de derechos humanos. un nuevo paradigma. méxico, d.f., ed. porrúa, unam. carbonell, miguel, (2013) introducción general al control de convencionalidad, méxico, d.f., porrúa-unam. castañeda otsu, susana, y., (2002) “el principio de interpretación conforme a los tratados de derechos humanos y su importancia en la defensa de los the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 20 geofredo angulo lópez derechos consagrados en la constitución”, en méndez silva, ricardo, derecho internacional de los derechos humanos. memoria del vii congreso iberoamericano de derecho constitucional. méxico, d.f., unam-iij. castilla juárez, karlos, (2010) “el derecho de origen internacional en la interpretación constitucional de la suprema corte de justicia de la nación” en cuestiones constitucionales, n° 23, julio-diciembre, unam-iij, pp. 219-243. corcuera cabezut, santiago., (2003) méxico ante el sistema interamericano de protección de los derechos humanos. méxico, comisión de derechos humanos del distrito federal-universidad iberoamericana. de asís, rafael, (2015), una mirada a la robótica desde los derechos humanos, madrid, uciii-dykinson. de castro y bravo, federico, (1977) "naturaleza de las reglas para la interpretación de la ley", anuario de derecho civil, n. 1, vol. xxx. endicott, timothy, (2007) la vaguedad en el derecho, madrid, ed. dykinson. ferrer mac-gregor, eduardo, (2012) “interpretación conforme y control difuso de convencionalidad. el nuevo paradigma para el juez mexicano”, en carbonell, miguel, [coord.] la reforma constitucional de derechos humanos. un nuevo paradigma. méxico, d, f., ed. porrúa, unam-iij. ________ (2010) “el control difuso de convencionalidad en el estado constitucional”, en, fix zamudio, héctor. 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(pedro cruz villalón), en, escritos de derechos constitucional, ediciones del centro de estudios constitucionales, madrid. lópez medina, diego, e., (2005), “hermenéutica legal y hermenéutica constitucional. antecedentes históricos y perspectivas contemporáneas”, en, ferrer mac-gregor, eduardo, (coord.), interpretación constitucional, tomo i., méxico, ed. porrúa-iij-unam. laporta, francisco javier, (1985), “principio de igualdad: introducción a su análisis”, sistema. revista de ciencias sociales, nº 67. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 21 the interpretation of human rights according to international treaties martín, claudia, [comp.] (2004) derecho internacional de los derechos humanos. méxico, universidad iberoamericana-american university-distribuidora fontamara. mijangos y gonzález, javier, (2006) “breves notas sobre la jurisprudencia de la corte interamericana de derechos humanos y su recepción por los tribunales federales mexicanos”, en, revista iberoamericana de derecho procesal constitucional, nº 6, 2006, pp. 4011-424. nash rojas, claudio, (2010) la concepción de los derechos fundamentales en latinoamérica, méxico d.f., ed. fontamara. olano garcía, hernán, a., (2006) interpretación y neoconstitucionalismo, 1ª edición, méxico, d.f., porrúa, instituto mexicano de derechos procesal constitucional. peces-barba, gregorio, (2004) lecciones de derechos fundamentales, madrid, ed. dykinson. _______ (1999) curso de derechos fundamentales. teoría general. madrid, universidad carlos iii de madrid. ________ (1999) derechos sociales y positivismo jurídico. escritos de filosofía jurídica y política, madrid, ed. dykinson-universidad carlos iii. pérez luño, antonio, (1984) en “la interpretación de la constitución”, revista de las cortes generales. madrid, 1er cuasimestre. pfeffer urquiaga, emilio, (2003) “los tratados internacionales sobre derechos humanos y su ubicación en el orden normativo interno”, en revista ius et praxis, [en línea] vol. 9 n° 1. 2003, talca pinto mónica, “el principio pro homine”, (1997) en aavv, la aplicación de los tratados sobre derechos humanos por los tribunales locales. argentina. editores del puerto. rey cantor, ernesto, (2008) control de convencionalidad de las leyes y derechos humanos, méxico, d.f., ed., porrúa. savigny, friedrich karl, (2009) sistema del derecho romano actual, trad. de mesia y poley, alicante, biblioteca virtual miguel de cervantes, reproducción original de la 2ª ed. madrid, centro editorial de góngora, (1838-1847) suprema corte de justicia de nación. jurisprudencia. tesis 1ª /j.43//2015 (10ª.) suprema corte de justicia de la nación. tesis aislada núm. 1ª. lxiii/2016 (10ª.) https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx [accedido el 21 de abril de 2016] suprema corte de justicia de la nación, tesis: 1ª /j.43/2015, (10ª) https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx [accedido el 26 de abril de 2016] suprema corte de justicia de la nación. tesis aislada 2a. xxxiv/2012 (10a.), en http://www2.scjn.gob.mx/red/2sjt/ [accedido el 23 de marzo de 2015] suprema corte de justicia de la nación, género y justicia. el soft law en el quehacer jurisdiccional en boletín n° 34, abril 2012, pp. 1-4. suprema corte de justicia de la nación. tesis. xxvii.3o.6 cs. 2015. semanario judicial de la federación décima época. méxico. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 22 https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx https://www.scjn.gob.mx/libreria/paginas/semanarioauto.aspx http://www2.scjn.gob.mx/red/2sjt/ http://www2.scjn.gob.mx/red/2sjt/ geofredo angulo lópez suprema corte de justicia de la nación, (2015) protocolo para juzgar con perspectiva de género. haciendo realidad el derecho a la igualdad, méxico, d.f. suprema corte de justicia de la nación, amparo en revisión 237/2014. suprema corte de justicia de la nación, expediente “varios”, 912/2010 diario oficial de la federación, 2011. suprema corte de justicia de la nación, contradicción de tesis 293/2011, gaceta del semanario judicial de la federación, libro 5, abril de 2014, tomo i, p. 96. tribunal constitucional de españa. (1991) sentencia. 36/1991. boletín oficial español 14 de febrero de 1991. madrid. tribunal constitucional de españa. (1991) sentencia. 28/2011. boletín oficial español 14 de febrero de 1991. madrid. corte interamericana de derechos humanos, gonzález y otras “campo algodonero” vs. méxico, corte interamericana de derechos humanos, sentencia de 16 de noviembre de 2009, http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_esp.pdf [accedido el 26 de abril de 2016] corte interamericana de derechos humanos, (caso “masacre de mapiripán vs. colombia), sentencia de 15 de septiembre de 2005, párr. 106, http://www.corteidh.or.cr/docs/casos/articulos/seriec_134_esp.pdf [accedido el 3 de mayo de 2016[ convención de viena sobre el derecho de los tratados suscrita en viena austria el 23 de mayo de 1969. the age of human rights journal, 6 (june 2016) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2920 23 http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_esp.pdf http://www.corteidh.or.cr/docs/casos/articulos/seriec_134_esp.pdf the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 133 is sexual assistance a right? rafael de asís roig1 abstract: in this paper i will reflect on sexual assistance, and i will discuss the possibility of shaping sexual assistance as a right. the question of whether sexual assistance is a right can have different answers depending on the framework we are in. we could fall within a purely legal framework, an ethical framework, or a combined framework such as the human rights context. from this point onwards, the question of whether sexual assistance is a right shall depend on the answer to the question regarding the nature of sexual assistance. sexual assistance for persons that cannot perform sexual activities on their own body can be ethically justified by the theory of needs or by the notion of instrumental activities of daily living. it can also fall within sexual rights or within the right to choose a way of life. keywords: disability, sexual rights, assistance, supports. summary: i. the true meaning of the question; ii. what is sexual assistance?; iii. sexual assistance as a right; iv. some conclusions. introduction in the context of the rights of persons with disabilities, the reflection on the meaning and scope of sexual assistance has gained ground in the last few years. this has been due to various factors: firstly, we have acknowledged the need to apply a human rights approach when discussing disabilities; secondly, several workshops have been held and numerous scholarly works have been performed on this subject; thirdly, certain organizations providing these services have appeared. this is definitely a complex matter, since it addresses issues which are yet to be solved from a theoretical standpoint. furthermore, there are opposing views in this regard, as well as many stereotypes, particularly affecting persons with disabilities. 1 instituto de derechos humanos bartolomé de las casas, universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). the spanish version of this work was published in revista española de discapacidad, vol. 5, n. 2, 2017 (https://www.cedd.net/redis/index.php/redis/article/view/368). the english translation has been made by frutos miranda traductores. this work has been performed within the framework of projects “madrid sin barreras: discapacidad e inclusión social” (s2015/hum-3330) and “diseño, accesibilidad y ajustes. el eje de los derechos de las personas con discapacidad” (der2016-75164-p). i shared a first draft of this paper in the working sessions on functional diversity and sexual assistance (jornadas sobre diversidad funcional y asistencia sexual), hosted by universidad carlos iii de madrid, in may 2017. i would like to thank the attendants for their helpful remarks. i would also like to thank pablo a. cantero garlito for his comments on the instrumental activities of daily living. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 134 self-evidently, the reflection on sexual activity and sexual rights in the context of disability has been conditioned by certain aspects that must be tackled from the outset. in a recent work, i mentioned a three-step approach to the rights of persons with disabilities. one of these steps was normalcy. normalcy entails fighting against the prevailing stereotypes in this domain, which often depart from the consideration of disabled persons as asexual beings or otherwise sexually dependent. some other times, the said stereotypes are based on the premise that disabled people shall only interact with other persons with disabilities, or on the idea that persons with intellectual disabilities “show an excessive sex drive or fail to adequately control their sexual behavior.”2 in this paper i will reflect on sexual assistance, and i will discuss the possibility of shaping sexual assistance as a right. i will do this within the framework of the human rights theory,3 whilst adopting (as it could not be otherwise) a human rights based approach to disability.4 i. the true meaning of the question the question of whether sexual assistance is a right can have different answers depending on the framework we are in. we could fall within a purely legal framework, an ethical framework, or a combined framework such as the human rights context. if we adopt a legal standpoint, we must clarify what must be deemed as a right and when we are facing a right. there is no single answer for these two issues, since they depend on schools of thought and scholarly doctrines. indeed, throughout the history of law there have been very different responses to the question of what must be considered to be a right. in this regard, there has been a clash between two main theories advocated by two scholars of great renown, i.e. ihering’s theory of interest and savigny’s voluntary submission theory. however, there have also been other views, and some of them have even reject the actual existence of rights. for the purposes of this work, we could think of rights in terms of willingness or choice, or in terms of interest (whether individual or objective). nevertheless, we could also understand a right as a given situation. this is actually the point of a famous german legal scholar when discussing individual rights: w.n. hohfeld. hohfeld studied the use of the term “right” in the legal domain and pointed to four possible meanings.5 according to this scholar, the notion of right was used as a claim, as 2 see arnau ripollés, s., “la asistencia sexual a debate,” in dilemata, no. 15, 2014, p. 9. 3 see barranco, m.c., condición humana y derechos humanos: algunas claves filosóficas para un modelo de derechos humanos, dykinson, madrid, 2016. 4 see palacios, a., el modelo social de la discapacidad, colección cermi, madrid, 2008, p. 103 et seq. 5 see hohfeld, w.n., conceptos jurídicos fundamentales, translated by g. r. carrió, centro editor de américa latina s.a., buenos aires, 1968. is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 135 a freedom, as a prerogative or as room for immunity. in order to fully understand its meaning, hohfeld established a list of opposite situations (the opposite of holding a right for an individual) as well as a list of complementary situations (the situation of the other person when his or her counterpart actually holds a right). accordingly, the opposite of a claim is the absence of a right, and a duty complements a right; the opposite of freedom is a duty imposed on the individual, whereas the absence of a right complements freedom; the opposite of a prerogative is the lack of power or competence, whereas the complementary situation to a prerogative is subjection; finally, the opposite of immunity is subjection, whereas the lack of power or competence complements immunity. regarding the foregoing, it is worth noting that there is always some sort of willingness or interest underlying a right, which can appear as a claim, a freedom, a given prerogative or certain room for immunity, and which entails that a given individual is in a situation that can be identified in obligational terms. nevertheless, the previous conclusion does not suffice, provided that the existence of a right also requires legal acknowledgment, i.e. the situation underlying a right must be legally acknowledged; additionally, the interest or willingness must also have some sort of legal acknowledgment. furthermore, we must wonder how this legal acknowledgment is attained, since it is mainly achieved through a given rule where the right is enshrined or which empowers or enables individuals to establish legal relationships based on which rights and obligations are shaped. in both cases, the existence of the rule or the validity of the legal relationship will be determined by its conformity with the remaining rules, and ultimately by the compliance with the legal criteria represented by human rights in constitutional systems. from this point onwards, the question of whether sexual assistance is a right shall depend on the answer to the question regarding the nature of sexual assistance. if we ask ourselves the question from an ethical standpoint we would be thinking of sexual assistance as a moral right.6 but, what is a moral right and when are we actually confronted with a moral right? as it happened in the legal domain, there is no single answer to this question. moral rights have been construed as powers, prerogatives, freedoms, claims, interests, expressions of willingness, immunities, capacities, possibilities, needs... as can be seen, at this point there is little difference between the legal and ethical construction. 6 the notion of moral rights is very controversial in philosophy of law. see, in this regard, nino, c.s., “sobre los derechos morales,” in doxa, no.7, 1990, p. 311 et seq. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 136 moreover, the most important aspect of moral rights’ construction is the ethical acknowledgment of the relevant claim, as it happened in the legal domain. such acknowledgment appears as grounds, i.e. a moral right is held when there are moral grounds that justify the said moral right. along these lines, the existence of a moral right shall be determined by how solid these justifying grounds are. from this point, the question of whether sexual assistance is a moral right shall depend on how we define sexual assistance. finally, we can ask ourselves this question from a human rights perspective: is sexual assistance a human right? as in the two previous cases, in order to answer this question we must know what a human right is. similarly, there is no single answer to this question. however, it is worth noting that, as opposed to the two previous cases, there is a list of human rights enshrined in international declarations as well as in domestic constitutions. thus, in order to adequately answer the question, we could look for the acknowledgment of sexual assistance as a human right in any of these texts. if we examine human rights laid down in declarations, conventions and constitutions, we will not find a right to sexual assistance. conversely, we may be able to argue about its existence based on other rights or on core elements of the human rights discourse. however, this path forces us to question ourselves about the actual essence of human rights. although there are different approaches to human rights,7 some distinct features can be found in almost any approach thereto, which are consistent with the legal and ethical notions of rights.8 therefore, human rights amount to requirements, needs, claims, etc. that can appear in any of the situations described by hohfeld, generally supported by legal provisions as well as by ethical reasons for the enforcement thereof. human rights are distinct because there is always going to be another side of the coin: a duty is always going to be complemented, among others, by the government (either as a guarantor of rights or as a promoter thereof), and the ethical arguments that justify such rights is tied to the development of a dignified human life. yet again, it is essential to clarify the meaning of sexual assistance in order to verify if it is connected with a dignified human life. although we still have to clarify the meaning of sexual assistance, the question of whether it amounts to a right depends, from a legal perspective, on the existence of a valid legal provision. from an ethical standpoint, it depends on the existence of moral grounds, and from a human rights perspective it depends on a legal provision, but particularly on the existence of an obligation incumbent upon the government as well as on grounds tied to a dignified human life. 7 see rodríguez toubes, j., la razón de los derechos, tecnos, madrid, 1995, p. 20 et seq. 8 see de asís, r., sobre el concepto y el fundamento de los derechos: una aproximación dualista, dykinson, 2001, p. 6 et seq. is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 137 ii. what is sexual assistance? as it happened with the notion of right, there is no single perspective on sexual assistance. the primary meaning of sexual assistance relates to the help or support provided for the performance of sexual activities. in this connection, sexual assistance would involve a third party.9 this aspect constrains and ultimately defines the approach to sexual activity. accordingly, we can mainly differentiate between three kinds of sexual activity. first, the activity performed by oneself; second, sexual intercourse between two people; finally, a sexual relationship between two people with no physical contact. in the context of disability, the term “assistance” is often referred to personal assistance, which involves the help provided by one person to another so the latter can carry out different activities or even the first may actually perform such activities for the latter. as is well known, the issue of sexual assistance falls within the rights of persons with disabilities discourse. indeed, it is a core element of what in other papers i have designated as “accessibility axis,” made up of universal design (a general principle that gives rise to specific obligations), accessibility measures (general measures appearing when universal design is not fulfilled in a justified manner), and reasonable accommodation (individual measures applicable when accessibility requirements are not met in a justified manner through universal design or accessibility measures). article 9 of the convention on the rights of persons with disabilities addresses universal accessibility in the following terms: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” hence, one could speak of a narrow and a broad meaning of accessibility. the narrow meaning of accessibility applicable to “products, environments, programmes and services,” entails “persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” accessibility in a broader sense brings along the access of persons with disabilities to all legal interests and rights, and it revolves around an independent living and their participation as equal 9 this work will focus on sexual assistance provided by a person. however, such assistance could even be provided by machines. some scholars consider that this would almost settle the debate, which leads to consider that one of the main issues regarding sexual assistance has to do with the assistant’s rights and overall situation. furthermore, the possibility of using machines in this kind of activity can also pose certain problems. i have tackled this matter in una mirada a la robótica desde los derechos humanos, dykinson, madrid, 2015. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 138 members of society. it is closely connected with the notion of ability or capacity, and it underscores its dimension as a possibility or, better said, as a right to hold rights. support and assistance are key tools within the rights of persons with disabilities discourse. although they have different meanings and implications, support is often connected with the exercise of rights, and assistance is usually tied to an independent living as well as to instrumental activities of daily living. therefore, we can highlight two broad meanings of support. on the one hand, a meaning related to the exercise of rights; in this vein, we can refer to educational support (article 73 et seq. of organic act 2/2006, of 3 may, on education -ley orgánica 2/2006, de 3 de mayo, de educación-) or to supported employment (article 2(1) of royal decree 870/2007 of 2 july -real decreto 870/2007 de 2 de julio-). on the other hand, support may be connected with the exercise of abilities or capacities, and particularly with decision-making (article 12 crpd). likewise, we can address two broad meanings of assistance. first, the one projected onto the exercise of rights in connection with independent living, thus tied to the first meaning of support. second, the meaning that connects assistance with what has traditionally been designated as instrumental (or basic) activities of daily living (article 2 of act 39/2006 on the promotion of personal autonomy and care of dependent persons -ley 39/2006 de promoción de la autonomía personal y atención a las personas en situación de dependencia-). accordingly, support and assistance can be jointly examined, with three main projections attached thereto: a) exercise of rights; b) decision-making; and, c) instrumental (or basic) activities of daily living. these three projections or meanings of support and assistance can be found in the “accessibility axis” and in its three core elements. therefore, they can be implemented as universal design (general measures for all enabling everyone), accessibility measures (general measures enabling persons with disabilities) or as accommodation (individual measures). for instance, considering the right to access to justice, universal design requires buildings to be accessible; accessibility measures require solving -on a universal basisa justified lack of accessibility (for instance, because the building is old); and reasonable accommodation requires specifically remedying a justified lack of accessibility (for instance, to condition a given room). we can apply this outline to support. such support measures can be part of universal design or they may belong to accessibility measures (existence of specialized personnel to assist persons with intellectual disabilities in court), but they can also fall within reasonable accommodation (personal assistant or support person for decision-making). along these lines, both support and assistance can be part of the “accessibility axis,” and therefore they can be involved in the various legal constructs provided in other is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 139 works on accessibility. they can belong to the core content of rights, and the lack thereof can thus entail a violation of the relevant right. however, they can also operate as actual rights. thus, in sobre discapacidad y derechos (dykinson, madrid 2013), i have considered the possibility of shaping a right to decision-making support, or a right to assistance for the instrumental activities of daily living. notwithstanding the foregoing, as i have stated in previous works, the universal “accessibility axis” can be limited by three kinds of circumstances, i.e. the boundaries of necessity, of possibility and reasonableness. the boundaries of necessity relate to the kind of legal interests, products, services or rights on which accessibility can be projected; the boundaries of possibility are mainly related to the situation of scientific knowledge and human diversity; the boundaries of reasonableness are tied to the lack of justification for accessibility, since it affects other rights and legal interests or since it entails an unreasonable cost. this general construct regarding the boundaries of the “accessibility axis” acquires certain distinct connotations when applied to support and assistance. this is mainly due to two reasons. first, because sometimes in these situations a third party’s rights (those of the person providing the assistance or support) can be at stake. second, because some other times the point is to support a person’s will, and at this point we could put forward certain justified requirements in favor of the assistant or the person supporting himself/herself. indeed, despite our emphasis on integrating the notions of support and assistance within the individual exercise of a right, as well as within an extension of the person itself, the truth is that whenever such support and assistance are provided by a person, such person’s rights are actually at stake. along these lines, we must weigh the various legal interests involved. moreover, when this support or assistance is tied to the individual’s decision-making, particularly when touching on core individual aspects, some might argue in favor of protecting the person itself. self-evidently, in both cases this construct becomes even more complex. in the context of personal assistance we can find activities such as personal hygiene, activities related to the house, accompanying activities or driving, but sexual activities are not included therein.10 10 according to soledad arnau, personal assistance is an instrumental need, whereas sexual assistance is a secondary need. in her view, “personal assistance somehow contributes to enhance one’s sexuality, at least in an indirect manner. in other words, certain persons with functional diversities would be unable to access their current resources (going out, entering into clubs, sex-shops, preparing for sexual relations...) without their personal assistants.” she claims that sexual assistance is an optional or enabling resource, “a direct resource allowing a person with functional diversities to live his or her sexuality, but it shall never be construed as the only possible alternative.” arnau ripollés, mª. s., “asistencia sexual. otro medio, no un fin, para alcanzar el derecho humano a una vida independiente en materia de sexualidad,” universidad abierta iberoamericana manuel lobato (uai manuel lobato-ipadevi), madrid 2013. available online at: http:// www.slideshare.net/solearnau/asistencia-sexual-sept-2013. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 140 in this connection, within the context of disability, sexual assistance is a special form of assistance encompassing the three dimensions of sexual activity mentioned above along with the preparation to sexual relationships. it is central to lay down certain criteria that may allow us to individualize sexual assistance in the disability domain, thereby drawing a distinction between sexual assistance and other sex-related services. out of the four activities mentioned above, there are two activities that acquire their own dimension, and which can be differentiated from other sex services that go beyond disability. they both require a distinct justification when the person willing to perform the relevant activity is materially unable to do so, i.e.: preparation for sex and sexual activity performed on oneself. however, the first one can be considered to be personal assistance, whereas the latter would be sexual assistance in a strict sense. according to antonio centeno, “sexual assistance for persons with functional diversities is a common ground for personal sexual assistance (which fulfils the right to access one’s own body) and sex-related services (wherein sexual pleasure is obtained in exchange for money).”11 this scholar contends that sexual assistance is connected with self-sexuality. nevertheless, according to him, when sexual assistance involves a sexual relationship we are actually confronted with prostitution. iii. sexual assistance as a right once we have determined the meaning of sexual assistance, we can re-examine the possibility of shaping sexual assistance as an individual right. as stated above, one path entailed considering sexual assistance as the result of a legal relationship, according to which an individual would be a right holder and his/her counterparty would be subject to an obligation. as is well-known, article 1089 of the spanish civil code sets out that obligations arise from legal provisions, from legal agreements or contracts, and from quasi-contracts. accordingly, this would equal to consider sexual assistance as a service to be provided. in order to further examine this path the validity requirement must be met, i.e. we must take into account article 1255 of the spanish civil code: “the contracting parties may establish any covenants, clauses and conditions deemed convenient, provided that they are not contrary to the law, to morality or to public order.” is sexual assistance contrary to the spanish legal system? as is well known, spanish law is somewhat cautious when dealing with sexual work. one could assert that there is no explicit prohibition of a free provision of sex-related services.12 on that basis, personal assistance would not be forbidden. 11 centeno, a., “asistencia sexual para personas con diversidad funcional,” 2014, available online at: http://derechoshumanosya.org/asistencia-sexual-para-personas-con-diversidad-funcional/ 12 in spain, this conclusion is often supported by the famous case of the senior judge gloria poyatos. she registered with the spanish irs and she registered in the social security system as a prostitute. article 187 is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 141 as has been highlighted throughout this work, considering sex services to be legal depends on whether such services are freely provided, and this is the most troublesome issue in this regard, in addition to other considerations such as the exploitation of women or the commodification of persons. however, these claims become less solid having regard to the shaping of personal assistance performed herein, which with such meaning and scope can become the subject of an agreement providing certain rights and obligations. if, according to our interpretation, sexual assistance can be the subject of a service provision agreement, why would it be interesting to shape it as a moral right or a human right? in my view, there are two reasons for this. the first one has to do with its strength and cost; considering sexual assistance as a right with solid ethical foundations, or even as a human right, provides good reasons to get the government involved in the fulfilment thereof. the second reason has to do with displaying sexual assistance as a demand in line with the struggle against discrimination and the protection of the rights of persons with disabilities. as has been examined above, we need legal grounds (mainly a legal provision in the broader sense), as well as an ethical justification, to deem sexual assistance as a right. the legal grounds can arise from the connection between sexual activity and sexual rights, or rather from the ties between sexual activity and other human rights. in the context of human rights, sexual rights were defined for the first time in the fourth world conference on women: “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behavior and its consequences.”13 we shall construe the notion of sexual rights as a set of claims mainly aimed at ensuring the autonomous and responsible control over all issues regarding sexuality. conversely, the purpose of reproductive rights is to protect any decisions concerning women’s reproductive behavior. these rights are grounded on human rights.14 in this regard, they are based on the values that govern the human rights discourse (dignity, freedom and equality). in of the spanish criminal code proscribes forced prostitution, which under article 188 is a more serious crime if it involves children or persons with disabilities in need of special protection. furthermore, the act on public safety (ley de seguridad ciudadana) provides for penalties on prostitution when carried out in certain public areas. in addition, several local rules and regulations address prostitution. 13 beijing declaration and platform for action, fourth world conference on women, 15 september 1995, a/conf.177/20 and a/conf.177/20/add.1. 14 declaration of sexual rights of the world association for sexual health, available at http://www.diamundialsaludsexual.org/declaracion-de-los-derechos-sexuales, accessed on 29 december 2016. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 142 addition, they are also closely tied to numerous legal interests underlying the human rights discourse (health, for instance). in any event, the meaning and scope of these rights remain unclear. there are different dimensions within sexual rights. accordingly, within sexual rights we can talk about sexual freedom (i.e. free decision-making regarding sexuality), privacy, nondiscrimination, education, information and sexual health. furthermore, reproductive rights comprise reproductive freedom (free decision-making concerning a woman’s reproductive behavior) and reproductive health. thus, they are rights that not only require protection, but they must also be provided and enforced. sexual rights have been fostered within the framework of women’s rights claims and their struggle for non-discrimination.15 the inclusion of disabilities in the human rights discourse requires extending sexual and reproductive rights to persons with disabilities. this is certainly not a new issue. in 1981 the charter of sexual rights in favor of persons with disabilities was adopted in havana, following the efforts of the cuban grassroots movement (movimiento asociativo cubano). such charter enshrined the following rights: (i) the right to sexual expression; (ii) the right to privacy; (iii) the right to information; (iv) the right to access the necessary services, such as contraception advice, medical attention and genetic and sexuality advice; (v) the right to choose the most suitable marital status for persons with disabilities; (vi) the right to offspring; (vii) the right to make decisions affecting one’s own life; (viii) the right to try to fulfil the individual’s full potential. nevertheless, this issue has not been tackled from an individual rights approach. this is due to the prevailing social view of disability and to the problems attached to dealing with sex-related issues. we also face these constraints if we advocate for the inclusion of sexual activities within the content of other rights, such as freedom or health, or within other legal interests. although i will go back to this point, it is worth noting that this inclusion is not unanimously accepted. additionally, from a legal perspective, the acknowledgment of implicit rights (often designated as implied or underlying rights) is troublesome in certain contexts. as is well known, the notion of implicit rights refers both to rights which have not been expressly enshrined in a given constitution and, as a legal principle, to those rights the content of which can be inferred from the actually listed rights.16 the spanish constitution fails to address implicit rights (as opposed to the argentinian constitution, which mentions implicit rights in article 33). however, we can often find lines of 15see, for instance, londoño, m.l., derechos sexuales y reproductivos, iseder, colombia, 1996. 16 on this matter, see gros espiell, h., “los derechos humanos no enunciados o no enumerados en el constitucionalismo americano y en el artículo 29.c de la convención americana sobre derechos humanos,” in anuario iberoamericano de justicia constitucional, 4, 2000, p. 146. is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 143 reasoning arguing that certain rights and claims can be inferred from the constitutional framework even if they are not expressly contained in the constitutional provisions.17 in any event, the success of the abovementioned lines of reasoning is closely tied to sound ethical arguments. in this regard, when it comes to justifying sexual activities from an ethical standpoint, there are two possible paths to be taken: a line of reasoning based on needs, or rather the construction sexual activities as an essential legal interest or activity. in the contemporary rights discourse, basic needs are often put forward as justifying grounds.18 this also happens in the majority of moral philosophy scholarly works, were the fulfilment of basic needs is an ethical imperative.19 nevertheless, it is worth noting that not every right is aimed at fulfilling a basic need, and thus considering sexual activities as a basic need would not necessarily solve the problem. however, it would further advance the construction of sexual assistance as a right. the underlying issue in the basic needs discourse is the lack of consensus on the meaning of such basic needs as well as regarding the difference between them and satisfiers, wishes or preferences.20 neither there is consensus on whether sexual activities can be deemed as a need. for those who understand basic needs as those which in lack thereof will lead to death, sexual activity is not a basic need, although it is included in certain classifications of needs.21 conversely, within the occupational therapy discourse, with significant implications in the personal assistance domain, the notion of “instrumental activities of daily living” is often applied to those activities oriented towards taking care of one’s own body as well as to any essential activity required for an effective participation in society.22 in the most commonly used list of these activities, that of the american occupational therapy association, sexual activity is acknowledged as an instrumental activity of daily living.23 17 a common example in spain is constitutional court ruling no. 31/1981 (sentencia 31/1981 del tribunal constitucional), which infers the in dubio pro reo principle from the presumption of innocence laid down in article 24 of the spanish constitution. this inference has been challenged by scholars. 18 see añón roig, m.j., necesidades y derechos: un ensayo de fundamentación, centro de estudios constitucionales, madrid, 1994. 19 see ribotta, s., “necesidades, igualdad y justicia. construyendo una propuesta igualitaria de necesidades básicas,” in derechos y libertades, no. 24, 2011, p. 259 et seq. 20 see ribotta, s., “necesidades y derechos: un debate no zanjado sobre fundamentación de derechos,” in jurídicas, 5 (1), universidad de caldas, 2008, p. 29 et seq. 21 see braybrooke, d., meeting needs, princeton university press, princeton-new jersey, 1987, p. 60 et seq. 22 see rogers, j. c. and holm, m. b., “assessment of self-care,” in bonder, b.r. and wagner, m.b. (eds.), functional performance in older adults, f.a. davis, philadelphia 2009, p. 181–202; see also, christiansen, c. h. and hammecker, c. l., “self care,” in bonder, b.r. and wagner, m.b. (eds.), functional performance in older adults, cit., p. 155–175. 23 american occupational therapy association. “occupational therapy practice framework: domain and process” (3rd ed.), american journal of occupational therapy, 68, 2014. available at http://dx.doi.org/10.5014/ajot.2014.682006 rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 144 therefore, sexual assistance for persons that cannot perform sexual activities on their own body can be ethically justified by the theory of needs or by the notion of instrumental activities of daily living.24 it can also fall within sexual rights or within the right to choose a way of life (given the connection between the instrumental activities of daily living and this right).25 accordingly, we could refer to sexual assistance as a right. indeed, based on how we have construed the notions of support and assistance, we could even deem sexual assistance as a core element of rights (such as the right to sexual freedom or the right to choose a way of life). notwithstanding the foregoing, there are significant limits to the construction of sexual assistance as a right and as an ethically relevant legal interest. these boundaries have to do with the other side of the coin, i.e. the obligation attached to the right and thus with the government’s role and the rights of the person providing the relevant assistance. could it be asserted that the government has to help me in this domain provided that i am entitled (or, put differently, i hold the right) to sexual assistance? when i addressed the “accessibility axis” i pointed out that one of the limits came hand in hand with reasonableness, and that the latter often became an economic issue. if we place sexual assistance within the human rights domain, this claim is pushed right into the background. as i have stated in other works: “limiting a right based on its excessive cost is simply unacceptable in the human rights discourse, unless there is evidence that such cost is causing insurmountable damage to other rights. at this point, the key is not the cost but the impact on the other right. economics must be at the service of rights and not the other way around.”26 hence, “there is no room for the cost as an argument independent from the enjoyment of rights. in order for it to be an admissible argument, the cost must be tied to the actual rights (i.e. it must limit other individuals’ rights). additionally, it will have to assess the cost attached to the non-fulfilment of the relevant legal interest in terms of lack of integration or segregation.”27 hence, it could be argued that the government must be required to provide this right, although this provision would have to be weighed against the impact on other fundamental rights and legal interests (as it often happens in the rights discourse). the same applies to the other side of the coin, i.e. the obligation attached to this possible right: the obligation incumbent upon the assistant. in this connection, this right’s construction requires to clearly determine the scope of the assistance and the assistant’s 24 in support of this argument we could find the possibility of banning any sexual activity performed on one’s own body. regardless of any ethical and religious grounds (or even claims disguised as medical criteria) advocating for this possibility, it does not look like the law would be able to enforce it. 25 see de asís, r., sobre discapacidad y derechos, dykinson, madrid, 2013, p. 91 et seq. 26 de asís, r., “el eje de la accesibilidad y sus límites,” in anales de derecho y discapacidad, no. 1, 2016, p. 65. 27 de asís, r., sobre discapacidad y derechos, cit., p.124. is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 145 rights and obligations. this issue cannot be tackled in this paper, but it is rather complex. we should not forget that the rights and obligations attached to personal assistance are still to be defined in legal provisions. in this paper i can neither focus on the implications of this possible right regarding persons with intellectual and psychosocial disabilities. in these cases there is a twofold support or assistance. on the one hand, sexual assistance as has been examined herein; on the other, the assistance related to the decision of performing, or not, a sexual activity. the latter entails providing support to decision-making, as it happens in other situations.28 however, such support cannot be provided by the sexual assistant insofar as there is some sort of economic compensation for this service. iv. some conclusions sexual assistance in the field of disability is a type of special assistance that incorporates four dimensions: the activity of a person in his own body, the activity that consists of a physical sexual relationship between two people, the activity that consists of a relationship sex between two people no physical contact and preparation for sexual activity. sexual assistance can be constructed as the object of a service. however, there are two arguments that favor its consideration as a right. the first has to do with its strength and its cost. the consideration of sexual assistance as a right with a strong ethical justification or as a human right, provides reasons to implicate the state in its satisfaction. the second one has to do with presenting it as a demand consistent with the movement that fights against discrimination and for the rights of people with disabilities. the consideration of sexual assistance as a right depends, in a legal sense, on the existence of a valid legal norm; in its ethical sense, the existence of a moral reason; in a sense of the human right of a norm, but above all, of the existence of an obligation of the state and of a reason linked to the dignified human life. the legal reason may come from the connection between sexual activity and sexual rights or from the connection between sexual activity and other human rights. but we also need a convincing ethical argument. to justify sexual activity as an ethical reason, we can follow two paths: that of needs or that of understanding it as a fundamental good or activity. but sexual assistance understood in this way has limitations in its own construction, which have to do with the correlative situation of obligation and, therefore, with the role of the state and with the rights of the person performing the assistance. in relation to the role of the state, there are arguments to defend a performance benefit that 28 see cuenca, p., “el sistema de apoyo en la toma de decisiones desde la convención internacional sobre los derechos de las personas con discapacidad: principios generales, aspectos centrales e implementación en la legislación española,” in redur 10, december 2012, p. 61 et seq. see also, bariffi, f.j., el régimen jurídico internacional de la capacidad jurídica de las personas con discapacidad, cinca, madrid 2014. rafael de asís roig the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 146 must be weighed against its effect on other rights and fundamental goods (as is usual in the discourse of rights). on the other hand, the construction of this right requires clearly establishing the scope of assistance and the rights and obligations of the assistant. references american occupational therapy association. “occupational therapy practice framework: domain and process” (3rd ed.), american journal of occupational therapy, 68, 2014. available at http://dx.doi.org/10.5014/ajot.2014.682006 añón roig, m.j., necesidades y derechos: un ensayo de fundamentación, centro de estudios constitucionales, madrid, 1994. arnau ripollés, mª. s., “asistencia sexual. otro medio, no un fin, para alcanzar el derecho humano a una vida independiente en materia de sexualidad,” universidad abierta iberoamericana manuel lobato (uai manuel lobatoipadevi), madrid 2013. available online at: http:// www.slideshare.net/solearnau/asistencia-sexual-sept-2013 arnau ripollés, s., “la asistencia sexual a debate,” in dilemata, no. 15, 2014. bariffi, f.j., el régimen jurídico internacional de la capacidad jurídica de las personas con discapacidad, cinca, madrid, 2014. barranco, m.c., condición humana y derechos humanos: algunas claves filosóficas para un modelo de derechos humanos, dykinson, madrid, 2016. braybrooke, d., meeting needs, princeton university press, princeton-new jersey, 1987. https://doi.org/10.1515/9781400858521 centeno, a., “asistencia sexual para personas con diversidad funcional,” 2014, available online at: http://derechoshumanosya.org/asistencia-sexual-para-personas-condiversidad-funcional/ christiansen, c. h. and hammecker, c. l., “self care,” in bonder, b.r. and wagner, m.b. (eds.), functional performance in older adults, f.a. davis, philadelphia, 2009. cuenca, p., “el sistema de apoyo en la toma de decisiones desde la convención internacional sobre los derechos de las personas con discapacidad: principios generales, aspectos centrales e implementación en la legislación española,” in redur 10, december 2012. de asís, r., “el eje de la accesibilidad y sus límites,” in anales de derecho y discapacidad, no. 1, 2016. de asís, r., sobre discapacidad y derechos, dykinson, madrid, 2013. de asís, r., sobre el concepto y el fundamento de los derechos: una aproximación dualista, dykinson, 2001. https://doi.org/10.1515/9781400858521 is sexual assistance a right? the age of human rights journal, 12 (june 2019) pp. 133-147 issn: 2340-9592 doi: 10.17561/tahrj.n12.7 147 de asís, r., una mirada a la robótica desde los derechos humanos, dykinson, madrid, 2015. gros espiell, h., “los derechos humanos no enunciados o no enumerados en el constitucionalismo americano y en el artículo 29.c de la convención americana sobre derechos humanos,” in anuario iberoamericano de justicia constitucional, 4, 2000. hohfeld, w.n., conceptos jurídicos fundamentales, translated by g. r. carrió, centro editor de américa latina s.a., buenos aires, 1968. londoño, m.l., derechos sexuales y reproductivos, iseder, colombia, 1996. nino, c.s., “sobre los derechos morales,” in doxa, no.7, 1990. https://doi.org/10.14198/doxa1990.7.11 palacios, a., el modelo social de la discapacidad, colección cermi, madrid, 2008. ribotta, s., “necesidades y derechos: un debate no zanjado sobre fundamentación de derechos,” in jurídicas, 5 (1), universidad de caldas, 2008. ribotta, s., “necesidades, igualdad y justicia. construyendo una propuesta igualitaria de necesidades básicas,” in derechos y libertades, no. 24, 2011. rodríguez toubes, j., la razón de los derechos, tecnos, madrid, 1995. rogers, j. c. and holm, m. b., “assessment of self-care,” in bonder, b.r. and wagner, m.b. (eds.), functional performance in older adults, f.a. davis, philadelphia, 2009. https://doi.org/10.14198/doxa1990.7.11 chapter vi the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 64 journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india gifty oommen 1 abstract: investigative journalism is the act of the journalists which goes beyond simple reporting of events in the press. it involves newsgathering by taking an initiative to get the required information. the information in this case is not easily available. the extra effort taken for this type of newsgathering is termed investigative journalism. this method has gained great momentum in india. the need for this study is motivated by the fact that though india is a party to united nations declaration of human rights and the subsequent iccpr 1966, it has failed to make privacy a part of the indian constitution while press is accepted as a fundamental right. today the press in india like in other nations is under the control of multinationals, which use this as a weapon to dictate the government and the masses. it is in this scenario that this study becomes relevant, where due to lack of legislative intent the media has become an unbridled horse. this makes an individual vulnerable to media attacks and trials. this study will focus on indian position and make a comparative analysis of the position in other nations which have a strong impact on indian decision making and make suggestions to bring in importance for privacy in india. the method adopted to collect data for this study is through literature survey and review. keywords: udhr; india; investigative journalism; privacy; press freedom; press council of india. investigative journalism is an act of press activism, which if conducted properly can do great help to any nation. this method of collection of news demands the journalist to be on his toes always and involves field work rather than seat work. it demands courage, knowledge of wide variety of things, support from the editor and the management and protection from the antisocial elements. today this is the method of operation in prominent newspapers and television channels all around the world. to name a few are papers like the guardian and the channel like british broadcasting corporation (b.b.c.). they are known for their newsworthiness and accountability towards the government and the public. in their vocation of news disbursement they follow high level of ethics and value system. in india we do have some illustrations like the above, such as the hindu and also the times of india, where there is an effort on the part of the management and the editors to maintain the basic standards of newsgathering. but generally this is not a common practice among the media. we fail to find journalists undertaking field work and going through hardships to get news for the press in our country. in most cases the matter is obtained from police or the foreign reporting agencies or the local agents. this matter is then reported, 1 assistant professor, government law college ernakulam, india (giftyoommen@gmail.com). gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 65 that is the reason many times the media when implicated in a case, finds taking as a defense, that the news was received from the police or other agents. this manifests their irresponsibility towards the trusting public. in this above process of newsgathering many a time ethics get eroded for gain of news and commercial gain. this is the problem faced in our country in the area of newsgathering. there is no mechanism as of now to effectively regulate this method of newsgathering especially when it comes to privacy rights. in the following paragraphs this conflict and the torts involved in it will be discussed taking cases from u.s, u.k and in this process the european trend will also be highlighted. after this, the problem as we encounter in india in light of the new technology will be elaborated, concluding with the possible suggestions and recommendations. these discussions will enable us to understand this conflict in depth in particular when it comes to privacy and its protection in india. in india there is no legal pressure on the media to follow the code of ethics as enumerated by the press council of india in 20102. as a result this freedom gives unwarranted freedom to the press to use any method whatsoever to get news. this could be in the form of sting operations using phone tapping, prostitutes, trespass and similar methods. it somehow gives a feeling to the public that the press is over the law, and their offences are forgiven while a private person has to face the law. many such issues are dealt in this article in comparison with the democratic countries such as britain and united states of america. recently in britain in august 2011, the media magnate rupert murdoch was questioned by the parliament on the matter of phone tapping of people which formed the source of their news. as a result he and his editorial staff had to suffer shame and court cases. this case also involved police officers, and as a result of all this and the public outcry, he had to finally close his tabloid ‘the news of the world’.3 in cases where it is clear that the press obtained these information’s through illegal means by sting operations, phone tapping and other mechanisms , though it might have some truth in it, this practice is not acceptable as it breaks other laws. truth has to be investigated through legal means and not by any methods. the object and the method should both be legal. investigative journalism is not a license to do wrong but to be role models for the people of india as we progress towards greater goals. the media has done a lot of good through investigative journalism and its activism. activism is normally demanded from the press, but usually this is not limited to matters which demand social interest. they have transgressed many a private people’s privacy on the pretext of investigative journalism. ultimately in some cases they find nothing worthwhile but the privacy is already violated. if the end result does no good to the public then some form of compensation should be given to the victim. this is not the only matter which is disturbing as, today the journalists are more technologically equipped in comparison even to the police and the investigative agencies. this makes the life of a private person more 2 press council.nic.in /norms 2010 pdf, retrieved on 11/06/2010 at 7.20 pm. 3 ‘lost our way, says disgraced tabloid’, indian express dt. 11/7/2011 p.11. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 66 vulnerable as he is always under surveillance through minute cameras and gazettes and makes people beware in public and private places. though u.s. is the land of press rights as is emphasized in the first amendment which forbids any interference in this right, and even though there is no explicit protection for privacy in its constitution, still no excuse is given to press for committing torts in the process of newsgathering. it was stated in a dietemann‘s case4, that the first amendment gives the media no right to break laws with impunity, even if legitimate news is being published. this was a case against a reporter and a photographer. jackie metcalf the reporter and photographer william ray went to house of a plumber, who was known as a doctor by the name of a.a dietemann. they rang the bell and jackie metcalf acted as if she had a lump in her breast and as the doctor was conducting the examination, william took the pictures. life magazine later published all these details along with pictures. material was collected to be used to convict dietemann as mrs. metcalf relayed her conversation with dietemann through her transmitter in her purse. the plumber sued time, inc. for us dollars 300,000 for invasion of privacy. the jury recognizing that dietemann was not having clean hands awarded the plumber only $1,000 for invasion of privacy. this decision set the precedent that law breaking is not allowed in the process of news gathering. journalists are supposed to collect information which they can obtain through proper channel. photographers can take photos from a public spot without going through strange acrobatics such as climbing or trespassing or using disguises. value system: values and morals are to be preserved in news gathering. ethics are to be followed if people want to trust the news media. they should win the trust of people through the value and ethics that they follow. in cape publications v. bridges5, hilda bridges pate had been kidnapped by her estranged husband at gunpoint. he took her to their former apartment and forced her to undress to prevent her from escaping. then he shot himself to death. police hearing the gunshot came and rushed her partially clad across the parking lot as she clutched a dish towel to her body. at that time she was photographed by this paper’s correspondent. she contented that taking her photographs in semi clad form and consequently publishing it, violated her privacy. the court considered it a newsworthy story and awarded no damages for her. here the public came in because of the gunshot and press did nothing damaging towards her or for the process of collecting news. princess diana & famous personalities: the case of princess diana is a very perfect example of how press (paparazzi – italian slang for a small annoying insect) can cause the death of a person. it was following of the press of princess diana and her 4 dietemann v. time, inc., 449 f.2d 245, 246 (9th cir. 1971). 5 cape publications, inc. v. bridges, 423 so. 2d 426 (fla. app. 5th dist. 1982), 8 med. l. rptr. 2535, 2536. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 67 companion in france that caused the car crash in which both she and her companion died.6 this is the way they behave with people; this shows how desperate they are to get hold of some news of great commercial potential. the risk involved is immaterial for them and they are least bothered about the damage done to the person involved, in this it happened to be a public person. in us, a similar case was of jacqueline kennedy onassis, wife of john .f. kennedy, late president of america, who had trouble with ron galella, a paparazzi who build up his career by taking their photos. he troubled mrs. onassis by following her almost everywhere and taking photographs literally giving her no private moment at all. it troubled her so much that finally an injunction was issued against him in 1975, protecting her privacy, which forbade him from approaching her within 25 feet or within 30 feet of her children7. some legislative measures: paparazzi has been causing undue interference in the lives of public figures and private individuals. there was lot of pressure for legislation in us to bring press under control to cut off the supply of freelance photographers supplying intrusive photos to the press. california has passed a statute imposing punishment for using of audio or visual recording devices on private property for collecting news. the media houses are also punished for buying these privacy invading recordings or photographs, even if the journalist providing the material are not employees of a media company8. certain exclusions: except for governmental purposes, media was usually not allowed to intrude into private places in america. certain exceptions have since been followed. in ayeni v. cbc9, tawa ayeni, wife of a man suspected of involved in a credit card fraud, was at home with her son kayoda, a minor. at this time, the us treasury department agent came with a search warrant. six federal agents went to the residence about 6. 00 p.m. mrs. ayeni clad in her dressing gown opened the door only slightly but they pushed their way in. later at 8.15 p.m., the treasury agent entered with a cbs news crew from “street stories”. mrs. ayeni thought that they were part of the warrant team and never knew they were cbs employees. later when she came to know that along with government officials, were press people. that is when she brought a suit against cbs. cbs claimed immunity as they said they had the permission of the government agents. the court allowed her lawsuit and declared that cbs had no greater right than that of a thief to be in the home to take pictures. 6 u.k law online –princess diana, privacy laws and press freedom in the united kingdom, page 4. http://www.leeds.ac.u.k/law/hamlyn/diana.htm retrieved on june12, 2000 at 10.30. 7 galella v. onassis, 487 f.2d 986 (2d cir. 1973). 8 california civil code section 1708.8 (1998) 9 ayeni v. cbs, inc; 848 f.supp.362, 364 (e.d.n.y 1994), 22 media law reporter 1466, 1467. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 68 technological advances: hidden cameras, wireless microphones and two way mirrors are just a few technologies in the hand of an investigative journalist to track down people in their private place. cellular phones can create problems. such was the case of mr. &mrs. martin10. the martins were entertaining themselves with a scanner in their car, trying to pick up conversations coming within those radio waves at that time of the day. that is when they picked up this conversation by intercepting the signal from his cellular phone. this happened to be a discussion on phone between representative boucher and another person. representative boucher believed that the martins had heard the conversation. once they recognized some of the voices, they tape-recorded it. this information got across through the new york times to the atlanta constituency. democrats and republicans then exchanged counter charges. republicans asserted that laws were violated by interception. the martins were punished with a fine of $ 500 for purposely violating a federal statute which forbids the use of a radio scanner to intercept radio telephone calls. similarly, in bartnicki v. vopper11, the supreme court held that the reporters who were actively participating in illegal interceptions of electronically transmitted conversations were liable. fraud & disguise: when the court finds a news agency guilty of fraud and trespassing, it has awarded high amount as punitive damages. such was the case of food lion v. capital cities /abc12 which happened in america. here dale and susan were working undercover for prime time live and had made false statements that they wanted employment, to get hired by food lion. they worked using tiny ‘jacket cam’ or ‘lipstick’ hidden cameras and recorders to gather information about the working of the organization. in the process they found some defects in the functioning, concerning hygiene. this matter was broadcasted and in response to the broadcast, food lion brought a suit against abc –tv alleging defamation, mail and wire fraud and trespass and also action against the ‘employees’ dale and susan for breach of duty of loyalty. court held that they agreed that there is breach of duty of loyalty by the two employees and awarded damages for that but apart from that there were no punitive damages for fraud as it was a social need that there should be cleanliness in a food setup. it was generally felt that food made in hygienic condition is essential for the society .as the government does not act to protect citizens on its own, it is felt in these cases, the reporters have to use such methods to get information from underground. though there were other journalists who argued against it, criticizing the act of concealing identities or using hidden cameras on private property. many legal scholars argue that liability in such cases can be overridden when a public good is served13. these matters have to be decided 10 adam clymer, “gingrich is heard urging tactics in ethics case,” the new york times, january 10, 1997, p.a1; neil a. lewis, “what the law says on using scanning devices,” the new york times, january 16, 1997, p. a13. 11 bartnicki v. vooper (u.s. s. ct. 2001) see also peavy v. wfaa – tv (5th cir. 2000) 12 food lion v. capital cities/abc, inc., 984 f. supp. 923 (m.d.n.c 1997). 25 med.l.rptr. 2185 13 “selfcensorship at cbs”, editorial in the new york times, nov. 12, 1996, sec. 4, p.14. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 69 with utmost care, otherwise this privilege which is given in some exceptional case can become the general code of conduct for press and on the pretext of public good they can force all privacy barriers to open. here in the above case the court the damage had already been done but all the same it was a genuine need of the society. at the same time the tort committed was not forgiven, therefore the journalists who enacted as employees were made to pay damages for breach of duty of loyalty towards the employer. it was a commendable decision especially because it happened in a country which is strongly in support of the press. overenthusiastic approach: in an award winning series of huston chronicle articles, reporter nancy stancill conducted a three month undercover investigation of texas nursing homes. the photos showed the subhuman treatment rendered to elderly residents. this gave rise to state investigation14. so things do happen if press is vigilant and investigative. but the press, many a times, oversteps in every direction, treading the obvious bounds of propriety and decency. investigation–dangers in law: investigation precedes dissemination of news. in the process of newsgathering, the journalist should be well aware of the legal frontiers. he should not be allowed to take the law in his own hands. he cannot break the law concerning privacy, trespass and others. us supreme court has provided no immunity to press from liability for torts in the process of newsgathering. the court has agreed that the press need some protection during the process. still keeping in view the constitutional right to gather news, the court went on to strictly limit its application by stating that the press has no ‘constitutional right of special access to information not available to the public generally’15. in this case, the court held that a journalist has no privilege under the constitution to withhold from jury, information which he has received in confidence from some source. the court rejected the argument that the first amendment should immunize newsgatherers from criminal liability. this case of branzburg was reinstatement of the decision in dietemann.16 later, in galella v. onassis17, the court took strong objection to the act of galella, a paparazzi that used unconventional means to photograph jacqueline onassis and her children. court held that as she was a public figure and had public activities, therefore the reporter´s constant surveillance was unreasonable as it affected her activities, by affecting her mentally and emotionally. the court also stated that the first amendment did not provide a ‘wall of immunity protecting newsman from any liability for their conduct while gathering news.’ therefore it is established that press just like the general public will be 14 nancy stancill, ‘deadly neglect: texas and its nursing homes’ (pts. 1-5), hous. chron., july 22-26, 1990, at ai, available in lexis, nexis library, omni file. westlaw. 71tex.l.rev.43 retrieved on 6/9/09 at 12.30 pm. 15 branzburg v. hayes 408 u.s. 665 (1972). 16 dietemann v. time.,inc.,449f.2d245,246. 17 galella v onassis, 487 f. 2d 986, 995 (2d cir, 1973). journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 70 liable for torts or crimes committed in the process of newsgathering. in the recent case of cohen v. cowles media co18, the supreme court denies that there is any constitutional right to gather news. the news gathering privilege: though news gatherers might get some privilege, that is however limited in nature. therefore it is been understood from the above decisions that the most probable standard that a news gatherer should have is to establish that he had a reasonable belief that the plaintiff was engaged in illegal, fraudulent or potentially harmful activities before he decides to conduct the undercover fishing expedition. this privilege should not permit the press to employ subterfuge to pry into private lives or allow access to private homes. this should also not prevent the reporter from employing the privilege for a purpose other than that for which it was intended. finally it should clearly serve common interest of the society that is to find the truth for which this privilege was exercised. this qualified nature of the privilege seeks to protect individual privacy as well as freedom of the press. we need investigative reporters as they are watchdogs of the society. but the trouble with these watchdogs is that they sometimes attack innocent people also. though not much fancied by people, an investigative reporter plays a valuable role in exposing societal ills and advancing reforms. the success lies to a large extent on the use of new gathering techniques, which does not pose a great threat to individual privacy. methods employed for investigation: the tools used in the process of newsgathering are many such as spying, phone tapping, prying, video and camera usage, disguise, lying pretence and persistence. one such case was of nellie bly who gained notoriety as one of the earliest reporters in this field. in 1905, acting insane she got access to the women’s asylum at blackwells island. during her investigation she exposed the human rat trap found there19. this being a matter of public evoking, it deserved merit. today intrusive methods of news gathering threaten privacy more than ever before. new technologies make intrusion easier. many agree that the increase in media intrusion is the result of increasing competitions for ratings and profits rather than an increasing desire to serve public. hidden cameras make an excellent tool for uncovering serious misconduct but they can also be used for attacking a person’s private life for the purpose of simply providing entertainment to the public. a very good example of competition is the incident following princess diana’s death, where a cbs executive was demoted because he did not immediately break into a 18 cohen v cowles media co 501 u.s. 663, 669 (1991). 19lyrissa barnett lidsky, ‘prying, spying and lying: intrusive news gathering and what the law should do about it’ 73 tul. l. rev.173 page 4 retrieved from westlaw on 6/9/09 at 1.00 pm. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 71 regular program, to report the news of her demise20. similarly in president clinton’s case although newsweek had early access to tapes of conversation between linda tripp and monica lewinsky, its editions did not make it public for need of additional verification. but within hours of their restraint, it was on the internet, by the drudge report, a source of unedited scandal mongering21. it affected the rating of the newsweek, showing the degree of competition in this field. the above incidents prove that concern for individual privacy by press does not receive much reward for them. comparison u.s.a., u.k., india: intrusive newsgathering is another name for gathering news by the most innovative technology, where the gadgets used are very minute therefore difficult to find out whether you are under scrutiny of a camera or video or not. in u.s. the right to press is protected but not the right to commit wrongs for collecting news unless it is strongly in line with the social need of that time. while in u.k. the right to press is controlled under the human rights act 1998, where privacy gets priority over press, which is the law in article 8 of the european union. while in india we have the constitutional support for press under article 19(1) (a) but there is no parallel protection for privacy in our constitution. this is a big handicap as along with this there is no strong legislation to protect the citizens against the intrusive newsgathering. the law in india is very far behind the technological advancements of this time. most of this intrusive news gathering is done through ingenious surveillance technologies. tiny cameras just larger than a lipstick case can be worn inside the dress and miniature recorders which can be concealed in a pocket is used for transmission of a news item to millions of people22. there are instances where the reporter is absent while eavesdropping is taking place .for example the shotgun mike can pick up sounds as far as sixty yards away23. no wonder there is growing consensus among people to do something about intrusive news gathering. thus investigative journalism has now being addressed as intrusive news gathering. a 1996 poll conducted by the center for media and public affairs in the u.s. indicated that 80% of respondents thought the media invaded individual privacy and 52% thought the media abused their first amendment freedom24. any law designed to protect privacy must strike a proper balance between both first amendment rights and realities as to how and in what instances the press exercise these rights. the question many a times arises in the life of an individual, when under scrutiny, is whether he or she had a reasonable right to privacy. there are two principles governing expectancy of privacy. the first principle of video intrusion comes to play when the individual does not make an attempt nor has taken some voluntary step to expose himself or herself in public. cases 20 see bill carter, ‘a month late, the fallout hits’, n.y times, oct. 8, 1997, at e8. 21 roger bull, ‘ online and loving it’, fla. times union, feb 27, 1998, at d1 (www.drudgereport.com) 22 food lion v. capital cities/abc, inc., 887 f. supp. 811, 816 (m.d.n.c. 1995) 23 wolfson v lewis, 924 f.supp. 1413, 1424 (e.d. pa . 1996) 24 see john hughes, ‘solving the media’s credibility problem,’ christian sci monitor, apr.16, 1997, at 19. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 72 such as of flora bell fall in this category25. here while in a fair with her kids, her dress just blew up in the wind. her body was exposed from waist down and this happened to be photographed and published in the front page of the daily. she did not make any voluntary act to expose herself in public, it was simply by accident that it happened, and this caused embarrassment to her. therefore the court held that she had reasonable expectancy of privacy, even in public places. flora felt ‘embarrassed, self-conscious, upset and was known to cry on occasions’. just because an incident happens in public, it does not forfeit the right to privacy of a person. the second principle is applied when the object focused to be published cannot be seen ordinarily. it can only be seen by the use of visual enhancement device such as a video or spy camera placed in a portion where a person would not normally or reasonably be expected to be standing or sitting, then in those cases, there is definitely an expectation of privacy. people, who want to take photographs, do not normally lie down on shopping mall floors to take pictures of woman under their skirt. this cannot be achieved by ordinary process. it can only be done by using miniature video cameras attached to baskets which woman carry for shopping, provided by malls. this has become a big problem in the u.s. as their ordinary dress is skirts and frocks. in this case also, these women have expectancy of privacy as they cannot reasonably expect such intrusions to happen in public. this creates a great degree of insecurity to woman folk, if left unconcerned and unprotected by courts. richard brown of gillett26, wisconsin was alleged by police to be up skirt voyeur. in 1998, police alleged brown of “hiding a video camera in a back pack, cutting a hole to expose the camera lens and then aiming it at the skirts of half a dozen female clerks who sat at tables while helping him. these women were working in a public location but still have a reasonable expectation of privacy that their private parts would not be videotaped. a series of such cases have been reported27. technology has become so easily accessible and cheap. for as little as $100, one can possess a dime sized camera, hide it and connect it to a video cassette recorder and become an anonymous gazer. for a few hundred dollars, voyeur may 25 daily times democrat v. graham 276 ala. 380 (1964). flora bell graham, then a 44 year old housewife was attending the cullman county fair in alabama in october 1961. as she was leaving the farmhouse with her two young children, air jets blew up underneath her dress and ‘her body was exposed from the waist down, with the exception of that portion covered by her panties. it just happened at that moment a photographer for the daily times democrat snapped a picture of her and the newspaper in bad taste published the photo on its front page 26 video voyeurism, privacy, and the internet: exposing peeping toms in cyberspace – clay calvert, justin brown 18 cardozo arts ent. l.j. 469, page 9, retrieved on 6/9/09 at 1.30 pm. 27 a weymouth, massachusetts man was indicted in july, 1999, for allegedly making videotapes of three babysitters when they undressed. he had a video camera in the bathroom. a man was arrested for using a video camera concealed in a gym bag to shoot up the skirts of the ten women at jacob’s field home of the cleveland indians baseball team. a collection of male student athletes from eight universities who claim they were secretly videotaped, filed a lawsuit in july 1999 – they were videotaped at urinals, in showers etc. id 22, page 4. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 73 go wireless, transmitting undetected images to either a monitor or recorder28. in most of these images, the victim’s face and identity are readily discernable. e.g. video images taken in a locker room, bedroom or bathroom when these images are published or posted on the wide web, these constitute violations of privacy29. these can be posted on news web sites by reporters or by private individuals. these types of offences are yet to be seen rampant in india, therefore we need to keep pace with the problems of technology in other developed countries to be vigilant in the area of law making. even in the united kingdom, such offensive newsgathering is not entertained by the courts. in british radio dj sara cox’s case in 200330, where she was photographed naked in her jacuzzi on her honeymoon. the photograph was taken by a long lens from a boat offshore and then published in the people newspaper. the court awarded her an amount of 50000 pounds31. similarly, sienna miller was also given 37500 pounds in 2008 for the unauthorized photograph in the sun wearing a costume in a closet set of the film hippie hippie shake32. a most interesting case was of mosely v. news group newspapers33. here max mosely was president of the governing body of motor sport worldwide. he had been filmed using a secret camera, while engaged in a sexual activity with five dominatrixes in the basement of a private flat. later an article along with the photograph was published on 20th march 2008 on the newsgroup newspaper website. he sought injunction but within days there had been 435000 hit on that website. so the court stated that injunction would no more help, though damages were given. here it shows the maturity of the courts, as they understood the complexity of online publications, and also therefore the failure of injunction in such cases. therefore they awarded damages for each hit, and this could be executed in britain. thus it became a very expensive coverage for the paper, which had used intrusive methods for taking these photographs. just because a celebrity shows bad behavior gives no excuse to reporters to go ahead with intrusive search into the very private parts of their lives. an analysis will show that u.k. is stricter towards reporters when it comes to intrusive news gathering. they are running in consensus with the european union, which is strongly in favor of privacy. the u.s. faced the television and video problem in the court in estes v. texas34 for the first time. in this the court declared the purpose of the sixth amendment’s provision 28 id. at p. 5. 29 id. at p. 13. 30 melville brown, amber ‘camera shy – the interaction between the camera and the law of privacy in the uk’, international review of law, computers and technology, 2008 22: 3, 217. http://dx.doi.org/10.1080/13600860802496400. retrieved on 12/6/09 at 1.40 pm. 31 ibid. 32 ibid. 33 mosely v. news group newspapers (2008) ewch 687 (qb) 34 estes v. texas, 381 u.s. 532 (1965). journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 74 for public trial. while analyzing the right of the press to televise court proceedings, the court determined that the press has the same privilege as the general public to access the court room35. the court specified that the concept of public trial guarantees that the defendant is “fairly dealt with and not unjustly condemned”36. later in sheppard’s case37 the court looking at the circumstances including the failure of the trial judge to take care against the influence of pretrial publicity, held the defendant’s due process right for fair justice was violated. pretrial publicity is trial by the media even before the case comes for hearing, regarding its analysis of the case. in the u.s. as the cases involve jury; it tends to influence the mind of these ordinary people of society who form the jury. they have no basic training in judicial process, thus they might give their decision under a preconceived notion .this affects the criminal defendant’s right to a fair trial by influencing public opinion thereby affecting the mind of jurors38. in u.s.a., where there is jury trial, pretrial reporting can have a detrimental effect on justice. the problem dealt here is only peripheral as needed for the discussion. in u.s.a. contempt of court is not strong and stringent as in uk and india. this is because of the first amendment, which guarantees freedom of information and the sixth amendment, which projects public trial in cases. these provisions if read together gives rise to a confusion in the mind of judges, whether to protect pretrial reporting or not. this right of presence of media at a criminal trial is not expressly articulated in the constitution, but there is some constitutional protection given to it39. but this right is subject to reasonable restrictions. as the constitution is silent on restrictions on media therefore in some cases of impairment of justice the courts are forced to either terminate the proceedings or pass gagging orders. these gagging orders ban the media from reporting the case till the order is removed by the court. one of the earliest in this line is the 1946 federal rule of criminal procedure 5340, which prohibits courtroom photographing and broadcasting in the federal district court41. however the judicial conference of the united states in 1990 did resolve to permit televising civil proceedings at the trial and appellate levels. but it prohibited any similar42 35 id.at p. 540. 36 id.at p. 538-39. 37 sheppard v. maxwell, 384 u.s. 333, 335 (1966). 38 gannett co., inc. v. depasquale, 443 u.s. 368, 378 (1979). 39 richmond newspapers, inc. v. virginia, 448 u.s. 579–80 (1980) 40 ‘an analysis of the legality of television cameras broadcasting juror deliberations in a criminal case’ by daniel h. erskine, esq. [fna1] 39 akron l. rev. 701, 2006 retrieved from westlaw at 1.00 pm on 7/9/09. page 6 41 id. fed. r. crim. p.53. “except or otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtrooms”. 42 ibid. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 75 broadcast of criminal trials. therefore both houses of the u.s .congress have proposed legislation to permit discriminatory televising of federal proceedings43. the english courts however have been very strict about media interference through video or otherwise during the trial stage. an act of parliament was brought in called the criminal justice act of 1925. this act made publication of any portrait of any person, in a court an offence.44 the contempt of court act 1981, in england also permits criminal prosecution if any information divulged at trial is published.45 in india we do not go to this extend. here in india fair reporting of information is allowed but in england no reporting of information is permitted. one would virtually remember the case of toddler baby p., who was brutally killed by his own mother and her lover46. the court did not release the names of the couple and their background till final decision came in. this was in keeping with the protection afforded to their identity. in r v. loveridge47, the court of appeal did not allow the filming which took place at the court, as it contravened statutory law. thus it can be clearly stated that english courts are against videos being used in court. the situation in the usa is fundamentally different, where the fight between fair trial and press still continues. the o.j. simpson trial is a very explicit example in which press over seeded the right to have a fair trial48. while in usa, there are no deterrent sanctions to prevent prejudicial publicity, in england and other commonwealth countries like canada, australia and new zealand there are heavy penal sanctions for the publishers of materials that may interfere with the due course of justice49. the judgment of the european court of human right50 led to the 1981 enactment of the contempt of court act. it seems at the adversarial systems it is based on the idea of openness of the judicial proceedings. they believe that justice should not only be done but should appear to have 43 ibid. 44 criminal justice act of 1925 section 41 (1). 45 contempt of court act 1981section 6 (c). 46‘woman, boyfriend who tortured baby named’, the new indian express, august 12, 2009 cochin, p 11. 47 r. v loveridge. 2 crim. app. r. 29 (2001). 48 http://en.wikipedia.org/wiki/o.j. simpson murder case, retrieved on 24th june 2010 at 10.30 am. 49 ‘the court of public opinion: the practice and ethics of trying cases in the media’ by kathryn webb bradley. cite as (71 – fall law & contempt probs.31). page 3 retrieved from westlaw at 1.30 pm on 7/9/09. 50 sunday times v united kingdom. app. no. 6538/74, 2 eur. h.r. rep. 245 (1979). it was a case in which a drug was responsible for damage to many unborn children, and while this case was pending in the court, the sunday times came with an article, which accused the manufacturers of the drug of negligence. the case went on to the european court. the court concluded that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression. and therefore the article was protected. this u.k. government responded to this decision by the enactment of the contempt of court act 1981. this act took account of the ruling of the european court and was also influenced by the ‘prejudgment test’. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 76 been done. therefore they do not like secrecy. while in the inquisitorial system of trial, they cannot get rid of some sort of secrecy. this is so regarding the preliminary stage while the main hearing is open to the public51. indian system of newsgathering: indian journalists have been keeping pace with press around the world. indian press has been instrumental in bringing many matters into public stage. many corruption cases have been reported and brought to the forefront by the press and other media. but in the process of news gathering many laws have been violated by journalists. enthusiasm is a good thing, but it should not hurt any person until it is of such social importance. this barrier can be crossed only if the mass media shows valid grounds for breaking it, for reasons considered by public and government as justified. this justification can only be allowed in terms of social interests such as security, anti-corruption, peace, harmony and respecting the ethics and sentiments of people. sting journalism which works on the principle of obtaining information by deceit – involves impersonation, lying and cheating, not to mention risk. it also requires clever marketing. e.g. the lakshman tapes (tehelka). one of the main accusations against tehelka.com was that the organization used deceptive means to make a quick name for itself in which it succeeded. but many did not approve of the methods used. sting journalism should understand that it is not easy to always justify violation of law. a hidden camera or microphone used to surreptitiously record information is violation of privacy. use of drugs or call girls to take out information or trap officials is a crime52. similarly, in the bofors case, justice j.d. kapoor observed, while pronouncing the verdict that the case at hand is a good and nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives and friends by the society. the court said that such a person is ostracized, humiliated and convicted without trial. the court cited the case of punjabi pop singer daler mehndi whose discharge was sought in a human trafficking case after his humiliation and pseudo trial through media as they (police) have not been able to find the evidence sufficient even for filing the charge sheet53 51 see european convention, supra 28, article 6(1), which states the principle that “judgment shall be pronounced publicly” but admits that the press and the public may be excluded from all or part of the trial in the interest of moral, public order or material security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 52 sunil saxena ‘candid cameras, call girls, bribery. is sting operation crossing the lakshman rekha?’ new sunday express, march 14, 2004, page 17. 53 the hindu, thursday, 5th feb 2004. http://www.hindu.com/2004/02/05, retrieved on 30/609 at 10.50 am. it was a case about accusing former prime minister rajiv gandhi of receiving bribe from an italian company for giving them the placement order for bofors. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 77 disturbing realities: there have been many instances of media reporting which has resulted into nothing positive except cause pain and hardship to the person tortured by the media. in 1980 lindy chamberlain, in australia, was tried for the murder of her baby. she was convicted and later released on fresh evidence that a dingo (a wild dog) had committed the act. in fact she had stated that in her case. bit later a motion picture ‘a cry in the dark’ depicting her story was made, enacted by actress meryl streep54. this public depiction of her case by the media caused her great agony. one can imagine the pain and agony undergone by a mother who lost her baby, got accused for it and finally given a public exposure to world for no fault of hers. this was an act of great irresponsibility on the part of media. in usa, investigations were made into biologist steven hat fill for allegedly sending anthrax viruses through the mail as a terrorist attack. the media gave this publicity. though this investigation brought no concrete evidence against him, the media exposure resulted in causing severe tarnish to his name and destroyed his career55. all this was caused due to the media outcry and exposure. the bofor’s scandal also came to nothing except it caused tarnish to the image of rajiv gandhi and his family. the isro espionage56 case in kerala in which the media falsely framed two scientists in an espionage scandal was finally laid to rest by the supreme court of india on april 29 1998. the cbi found no genuinely in the case. this was looked at by the court in bad taste and media generated, and projected the press as very irresponsible. this is another way of investigative journalism used by the media, to excite the people by giving them some spicy information, to think and imagine by which they malign the person focused and at the same time increase the circulation of the paper. the statement made by the media regarding lawyer ram jethmalani when he decided to defend manu sharma, a prime accused in a murder case. he was subjected to severe criticism for defending the accused. a senior editor of the television channel, cnnibn called that decision of jethmalani, an attempt to “defend the indefensible”. the press complained that it was not fair that a prominent lawyer like jethmalani should appear for the accused and that only an average lawyer should argue for the state57. again this is bypassing into the private right of an advocate, as to, for whom he should argue. 54 trial by media – wikipedia.org http://en.wikipedia.org/wiki/trial by media retrieved on 3/6/09 at 10 am. 55 ibid. 56‘isro spy case. requiem for a scandal’ by r. krishanakumar, frontline vol. 15::no 10::may 09-22, 1998. http://www.hinduonnet.com/fine/f11510/15101140.htm retrieved on 1/3/2010at 6.30 pm. this was a case involving two scientists working in indian space research organization, thiruvanandapuram, who were accused of espionage with official documents. this case was completely framed by the media. finally investigations found no evidence to prove their involvement in any espionage activity. 57 trial by media: prejudicing the subjudice. http://www.rminlu.ac.in/content/devesh article by s. devesh tripathi 2nd year ba, llb (hons) rmlnlu lucknow – retrieved on 5/6/09 at 10.05 am. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 78 similarly, in mohammed afzal, of the parliament attack case of december 2001, the media started its own trial shortly after his arrest – here the media played an excessive and negative role in shaping the public conscience. the role of court was taken over by the media, even before he was tried by the court. the opinion of the media was already fixed, that he is a terrorist and needs death sentence. this sort of evidence and discussions shown on the small screen can definitely prejudice the mind of an ordinary person. along with mohammed afsal his co-defendant s.a.r. geelani was also sentenced to death despite lack of evidence and the media portrayed him as a dangerous and trained terrorist. but later the delhi high court overturned his conviction, which was a blow to the impression given by media of this person. the court described the prosecutions case as ‘absurd and tragic’58. this gives a very clear idea of the preconceived notion that the media projects to the people of this country long before the process of court of law is over. therefore when the decision comes in contradiction of the view given by the media, public tends to think as to whether judges are corrupt and biased. disturbing photographs: similarly the carelessness of press is not just evident in writings alone, this is also seen depicted through photographs, etchings etc. morphing is a technique whereby a person’s face is put on the body of someone else. it is a process which leaves behind no tell-tale mark, especially if transferred to another computer, which reads it as an original file. this is a malpractice done by the media houses. this method is in clear violation of the identity and individuality of the victim, which forms an integral part of their privacy. the photograph of south indian film star, khusboo, was morphed in such manner. then it was the rajya sabha member and cpm leader brinda karat. in both the cases, morphing was done by maxim, the top selling international men’s magazine that was given license to start publication last year59.people do not even think of filing a case, as the courts just ask the media to give in their apology, the loss of reputation and the cost of litigation does not seem much to the courts. no media house should be allowed to change or replace parts of a photograph. this is a moral wrong, especially if it demeans a public figure. in 2006, the discussions came in mumbai mirror of former kerala minister, p.j. joseph60. it was concerning the allegation of a co-traveler who is a lady, regarding some physical contact on her body by the minister while traveling in a flight. but the picture shown was of another minister k.m. mani and not of p.j. joseph. transmission of wrong pictures in this way can cause stigma for an innocent person and is not good for press reporting. this behavior of the media is in bad taste, but unfortunately all this just goes on with no remedy been taken. 58 id. at p. 51 59sunil saxena ‘picture imperfect’, indian express dated 19/03/2006 60 mumbai mirror dated 20/8/06. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 79 press council of india:61 this body established in 1978, has been given a responsibility to prevent adverse remarks against the press. the pci provides for rules for scrutinizing the work of journalists. these rules include provisions that reporting should maintain accuracy and fairness.62 it should be subject to prepublication verification63. the press has been asked not to intrude or invade the privacy of an individual unless outweighed by genuine overriding public interest.64 though the pci has its rules for maintaining the equilibrium between public needs and private privileges, it is not found to be doing its job effectively. they normally end up asking the newspaper to apologize or retract the damage causing article or publish a rectification. these wrong doers are not made to give any compensation or damages to the victim. these newspapers do not suffer any heavy damages as there is no element of deterrence in the punishment given for violating the rules/orders of pci. hence, these wrong doers, instead of becoming more vigilant in future, perhaps become more comfortable as they know the extent to which pci would go in punishing them. in the case of an article in indian observer65, named ‘tragedy of the chastity belt’, the pci upheld the complaint against it. the article was regarding discussion of the need and use of chastity belts for women to preserve their chastity. the complaint was that the article was grossly obscene and was likely to arouse desires and sexually deprave the reader’s thoughts. this complaint was raised by the delhi administration. the pci simply warned the editor against such writings, which clearly reflect the power to which the pci can exert pressure on the press. it is easy to acknowledge that this warning by pci will have no deterrent effect on the indian observer. apart from warning, admonishing and censuring, pci also has criminal contempt powers. these powers are used to restrict the publication of prejudicial media reports but this is very rarely used. pci can only exercise its contempt powers with respect to pending civil or criminal cases66. recent cases: to cite the regression of ethics through the process of investigative journalism is so evident in the recent times, it seems that the press reporters and publishers have taken their freedom for granted. if no space is given for putting reins on them, then it is definitely a lapse on the part of the legislature. sr. sephy’s petition in the high court demanding an inquiry into the incident of leakage of visuals of narco analysis test tapes was elaborative of this government lapse. these visuals were telecast by malayalam news channels. such incidents proved the need for courts to issue directions to cbi not to divulge details of an enquiry to the public or press. therefore as a result justice hema of the high court of kerala stated that the courts should not be carried by the ‘media trial’ and 61 herein after referred to as pci. 62 swati deshpande, ‘media and law –a reporter‘s handbook’, published by amic india and unesco 2006, pg.190. 63 ibid. 64 ibid. 65 report of press council of india 1969 p. 10. 66 trial by media – human rights features, http://www.hrde.net/sahrde/hr features, retrieved at 10.39 am on 9/6/09. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 80 that courts should, and can, act only on the basis of case records. she said the ‘media has pronounced the verdict already without looking into any of the facts. the public has joined hands, being carried away by the various publications effected through media, which do not contain the bare true facts which are revealed by the case records. a demociean sword of a threat of ill repute is held over the head of any judge who may ever dare to lift his/ her pen and write or speak any thing contrary to the ‘media public verdict’ which is already pronounced .the courts can go only on the basis of the facts covered by the case records.’67 the ambani’s issue also needs to be mentioned, where they were indicted by a website as being behind the death of former chief minister of andhra pradesh, late y.s. rajasekhara reddy68. this simply made front news on the basis of vague reports in a couple of vernacular channels that a russian online biweekly tabloid – exiledonline.com carried a report that the death of ysr was not an accident but a result of a conspiracy hatched by the ‘ambani brothers’69. this news ultimately held no ground as they could not substantiate its conclusions.this shows the audacity of broadcasting news without any verification regarding its truth and authenticity less than 24 hours after this vernacular channel tv5 put out this report, the police arrested its senior executive editor and input editor. but the damage was already done as large scale disturbance70 took place in the night causing loss to reliance ltd and state government of andhra pradesh. recently t.p nandakumar, chief editor of crime magazine was arrested on charges of defamation by alexander, for publishing a defamatory article against him in the online edition of the magazine. it was stated that nandakumar demanded money for not publishing the article.71jammu & kashmir witnessed a media gag in fear of terrorist attacks; as a result there was a total ‘blackout of news in the local newspapers.’72 this was to maintain peace on the valley. three photo journalists were summoned by the police for taking photographs of president pratibha patil on a goa beach. the media had been asked to keep away from her. this was countered by the president of the photo journalists association goa, who stated that beach is a public ‘place and they have every right to be there.73 if this is guarantee of privacy for a president who was simply relaxing and not on any duty on the seaside, then the status of privacy would be really pathetic for a common man of this country .it was real sad to hear jammu & kashmir chief minister omar abdullah lamenting at the press report of his separation from his wife and his future plans. he was really grieved while stating that ‘i believe my family and i are entitled to that privacy. at this point my concern has to and 67 sr. sephy and others v. union of india and another 2009 (1) khc 121. 68 ‘ambanis behind ysr death?’, the new indian express ,(cochin) dt. 8/1/2010, p. 1. 69 ibid. 70 report that came to bite them, the new indian express, dt. 9/1/2010, p. 1. 71 ‘crime editor arrested’, the new indian express, dt. 4/7/ 2010, p.9. 72 ‘pdp condemns media gag’, the new indian express, dt. 11/7/2010, p.9. 73 ‘photo journalists summoned for snapping president’, the new indian express, dt. 6/1/2011, p.10. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 81 will remain my young sons who do not deserve to see themselves splashed across the news channels and pages of newspapers in this manner.’74 conflicts: media trial has now become the focus of many discussions. media trial is often conducted in two different realms. first by the traditional publishing media houses, which disburse news items through newspapers and magazines? the second by the more elaborate, quick and effective means; through the electronic media. faster the technique of transmission of news, faster the damage it can possibly do in the process. therefore, transmission through electronic media demands a greater need of caution in regards to electronic media. unfortunately, unlike the print media, electronic media has no regulatory body75 , was stated by former justice g.n. ray. he tried to bring it under the pci, and brought it to the notice of the government, but nothing materialized. in his lecture he states that the mechanism available against electronic media is only through contempt of court act 1981 regarding subjudice cases and secondly through the usual article 21 of the constitution of india regarding other matters. justice ray observed that it will be appropriate if the electronic media is regulated without any loss of time. he recommended the constitution of a media commission for in-depth study of various aspects of functioning of both electronic and print media76. presently we have only the mechanism of restricting the channel or prohibiting it under the cable television networks (regulation act) 1995, by the central government. the reasons would be in the interest of public order, decency or morality. but this is only a general restriction; no private remedy is available for any particular victim77. lately the ministry of information and broadcasting has banned fashion tv (ftv) for 10 days from march 10 till 21, 2010. this has been for showing bare breasted women in september 200978. this punitive action is not at all found effective. the situation that we are encountering in india is similar to the statement made by justice black in his dissenting judgment, “there comes a time when even speech looses its constitutional immunity. speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the republic. when conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt otherwise free speech which is the strength of the nation will be the cause of its destruction […]”, in dennis v. us79. this is what is happening in the sphere of media freedom. since the press has been using this freedom in an irresponsible manner, it has been gradually losing its authenticity and along with it the trust that people 74‘stories about remarriage are false: omar’, the new indian express dt. 16/9/ 2011, p. 7. 75 law lecture by chairman, press council of india on august 31, 2008 at bhubaneswar, organized by gora chand patnaik memorial trust. 76 ibid. 77 the cable television network (regulation) act, 1995, ss. 19 and 20. 78 ‘fashion tv bares all, gets banned.’ the new indian express, dt. 12/3/2010, p.1. 79 dennis v. us (1951) 341 u.s. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 82 have had in them through the years. over and above, they are violating the right to freedom of speech and expression, invariably, and this needs to come under a check otherwise this freedom will cause destruction as visualized by justice black in his above dissenting judgment. the chairman of the press council of india justice (retd.) markandey katju, stated that the argument that media was also a business and must give the people what they want “is degrading the media. the media is not an ordinary business that deals with commodities, it deals with ideas.” he said that the intellectual level of our people is very low. the media should not go down to that level. he said a large section of the media was diverting the attention from the real issues, and giving more importance to entertainment news and superstition rather than dealing with genuine issues of social development, which is the actual role to be played by the media80. position of press subjudice matters: it is very important that the press does not lose the confidence of the society. thus the fourth estate in a democracy operates along with legislature, executive and the judiciary within the framework of the constitution. in the wake of the amendment of the contempt of courts act 2006, wherein truth has been accepted as a defense in contempt proceedings81, for subjudice matters, precaution has to be taken by the investigative agencies that matters are not revealed to the media. truth being a defense, the media is bound to further exploit the information received if it is the truth, unconcerned by the damage it can make on the privacy aspect of an individual. the judges have to yet to fix the parameters of the truth in each and every case. every truth cannot be a defense if it runs the risk of destroying a person’s life though he might have repented of it. unless and until, it serves a public interest to reveal the truth, truth as a mere defense is calling forth controversies. the court should decide which truth should be entertained and the qualification of truth which can be allowed as a defense in case of contempt of court proceedings. the media involvement in criminal administration had received in-depth consideration of the “committee on national policy of criminal justice” in the wake of the sting operations and trial by the media. the council opined that unless there is substantial risk of serious prejudice to the course of justice, there should not be restriction or prohibition on the coverage of criminal proceedings82. in 1994 detailed principles were drawn up since known as ‘madrid principles’ on the relationship between media and judicial independence, at the conference organized by the international commission of jurists83. 80 ‘katju: media must provide leadership to society’, the hindu, dt. 6/12/2011, p. 10. 81 the contempt of court (amendment) act, 2006 section 2 substituting section 13 of the act. 82 address by justice (retd.) g.n ray, chairman – press council of india at vignayan bhavan, new delhi, on 29th & 30th march 2008 on the inauguration of two days workshop on ‘reporting of court proceedings, by media and administration of justice’ organized by supreme court legal services committee, press council of india and others. 83 ibid. gifty oommen the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 83 responsibilities of the press: courts at large gives protection to a free press. right to freedom of information is the password of these times. the role of media is widely recognized today. the responsibility of the press however is yet to be appreciated by the press. people have started wondering as to whether the press today operates just like any other business. ownership of media has increasingly caused apprehension as to whether this commercial aspect may influence the opinion and ethics of the editorial board. still amidst all these concerns, law and judiciary still continues to protect freedom of press and consider it as an important part of freedom of speech and expression. lately, the issue of ‘paid news’ was reported in the rajya sabha84. this concept of paid news has been there for some time, but it came to limelight when during last elections advertisement in the form of regular news was given in newspapers. this is bound to confuse the readers as they believe these campaign news items as genuine news. these ‘paid news’ has been paid for in terms of huge money just like an advertisement, while the regular news is genuine information for which no payment has been paid. this is taking the privilege of this freedom of press too far, due to the impact it creates on the masses. the opposition asked the government to take stringent action against any media house or politicians indulging in it. leader of the opposition in rajya sabha, arun jaitley, advocated appointment of a regulator to deal with these matters. he described the press council of india as a toothless wonder. he emphasized that “the reader or viewer has the right to honest, unadulterated news, which is being denied to him. he is not even being informed that the news is motivated by monetary considerations”. cpm leader sitaram yechury said that corporatisation of media houses had led to this menace and it was against parliamentary democracy85. conclusion: though indian system by and large follows the combination of british and the u.s system, it tends to tilt towards the broader decisions of the u.s supreme court. as the indian constitution also does not encompass the right to privacy while press freedom is made a constitutional right just like in the u.s, therefore it is important that we in india do not follow the system as in u.s. it could be concluded that we in india cannot have a press uncurbed and free. the courts are still being liberal with the press so as to develop a strong freedom of information system in india. today, along with all this, we also have the right to freedom of information act 2005, which gives right not just to the press but to each and every individual to break through the veil to get information of persons in power, institution and government. when the right to information is raised to a high pedestal then it is time that the corresponding duty to protect the privacy of its citizens is also given a respectable pedestal. to day media freedom cannot be mistaken for a world without secrets. in fact this is a dais; commercially manipulated to bring out man woven stories, which is constitutionally protected. it was a routine affair to distribute pens, notepads and folders during press conferences. then it jumped from these free samples to bigger presents like gold, vouchers and holidays. political reporting was paid in covers 84 ‘govt. urged to crack down on ‘paid news’ – the new indian express, dt.6/3/2010, p.7. 85 ibid. journalism: new trends and its impact on right to privacy. comparative analysis with special reference to india the age of human rights journal, 10 (june 2018) pp. 64-84 issn: 2340-9592 doi: 10.17561/tahrj.n10.4 84 having rupees 2000 or more. as this political reporting increased in journalism the lines of separation became blurred. niira radia, the popular lobbyist was simply doing this, the journalists involved in the radia tapes were passing messages between corporates and the government to get certain people into the cabinet and for other reasons.86 this is what the media is doing but in a different field, dealing with people and facts to manipulate persons in power, exposing their private facts for the media‘s profits and benefits. the elements of public interest versus privacy should be the test for deciding a case in favor or against a media reporting. the courts in india should determine the parameters of both these rights. the media houses should be asked to open its doors to give information to the public under the right to information act to ascertain whether the proper process of verification has been followed to prove the truth in the reported matter. they should have an active ombudsman which accepts complaints from the public, adjudicates over it, resulting in rendering apology, penalization and awarding compensation to the victims of their reporting. the object of ombudsman should be targeted towards winning the confidence of the victims and the public. investigative journalism should be encouraged only through the legal frame work and this should be incorporated in the training courses by these media houses. the press council of india should have more teeth when it comes to decision making and sanctions. it should have a deterrent effect on the journalists. without fear of law and the public the media might stride ahead into forbidden areas of national security on the pretext of right to information. a strong legislation is the need of the time which will fix the boundaries of press and privacy. in this world of increasing technology and lobbying by the media houses, an individual is left all alone and helpless with no means to protect him. in this position he cannot even defend himself. he is left all open and alone to abuses and shame for the sake of public interest, which the media claims is the freedom of press. right to privacy which is not constitutional protected right should be balanced by the courts with right to press in tune with the udhr of which india is a party. 86 ‘news for hire’ by zubeda hamid , the new indian express, dt. 4/12/2010, p.8. the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 62 free, prior and informed consent (fpic) in mexico: elements for its construction and challenges jose israel herrera1 abstract: free, prior and informed consent (fpic) consultation has become one of the most powerful tools indigenous people and minorities have to generate a dialogue and begin a negotiation in the country to face government decisions, private companies seeking to carry out any work or when legislative measures are about to be implemented on their territories with a possibility of damaging them. in mexico, this right is based over a group of not articulated among themselves normative foundations. this end up causing confusion and uncertainty on its application. this article presents elements to review the fpic consultation foundations in mexico for discussion and theoretical deepening in the light of human rights. keywords: free, prior, informed consent, mexico, consultation summary: introduction. i. what is the right to prior consent or fpic consultation? ii. the basic legal foundations of the right to fpic consultation; iii. the case “people saramaka vs. suriname of the inter-american court of human rights; iv. declaration and the program of action of the world conference on human rights; v. the mexican supreme court of justice; vi. the energy reform and fpic consultation; vii. the case of cherán; viii. on which is consulted; viii. 1. the mexican political constitution; viii. 2. the ilo convention 169; viii. 3. the ministry of agrarian, territorial and urban development; viii. 4. the declaration of the united nations on the rights of indigenous peoples; viii. 5. the world conference on human rights; ix. the states rules in mexico on fpic; x. who holds the rights to the fpic consultation in mexico; xi. when to use the fpic in mexico? xii. final conclusions. introduction the free, prior and informed consent or (fpic – consultation) has become one of the most powerful tools to generate a dialogue and set up a negotiation with indigenous and tribal groups in mexico. its origin in the years 90's with the signature and ratification of the convention 169 of the international labour organization, generated a right whose implementation has gone through several stages from being denied, to be implemented without a suitable method. it is not until the last decade, when the adoption of international decisions and regulations (case saramaka vs. suriname) that mexico expelled a series of guidelines and regulations for this right. one of the most powerful guidelines to of the fpic in mexico, was the 27/2016 recommendation issued by the national commission for humans rights of mexico (nchr). 1 researcher at the centre of legal research of the autonomous university of campeche, mexico (jiherrer@uacam.mx). free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 63 this recommendation is addressed to the federal executive power to write a law on this right, as well as to the congress of the union to study, discuss and vote it, as well as secure the participation of the indigenous peoples and communities through fpic consultations. this also recommends state governors, the head of the government of the city of mexico and its local congresses, to do the same locally. the nchr, considers it essential to clarify that prior, free and informed consultation should gradually have a binding character.2 this recommendation puts on the table a group of serious problems for the implementation of the fpic consultation such as the existing breadth of topics to consult, the lack of definition of stakeholders for fpic consultation, as well as media to access it. also, the lack of harmonization among the two only states in possession of a law on prior consultation, san luis potosi and durango. this recommendation is not the only influence the mexican legislation has found. in fact, the work the inter-american court of human rights (iachr) has been doing has a great influence in mexico among the internal pressures done by institutions such as the supreme court of justice, the chamber of deputies and some ministers of the federal government through the implementation of energy policies. at the beginning of the decade of the 90’s “convention 169 on peoples indigenous and tribal in countries independent” was signed by mexico. it replaced the convention 107 from the same organization3. mexico at this time was in a phase of great changes and structural reforms for bringing the country into the first world in a very short period. all this was done in order to improve the country's international image because the proximity of signing the “treaty of free trade of the north american” is approved. also, there was a main concern of the government to silence the claims of the indigenous groups that after almost five hundred years of the first european contact, continued to be the most ignored and forgotten groups in mexico. the 169 convention would serve to demonstrate that the country had them in mind. assies mentions that: “the new ilo 169 convention was adopted in 1989. mexico was the first latin american country to ratify the convention, although it did to project itself as a progressive country on the international stage. within the country the ratification passed almost unnoticed.”4 de la peña concurs, “in the year 1989 this document was signed because 2 national human rights commission, (2016) general recommendation 27/2016 on the right to prior consultation of indigenous peoples and communities of the mexican republic. available at: http://www.cndh.org.mx/sites/all/doc/recomendaciones/generales/recgral_027.pdf. consultation date: may 11th, 2019. 3 the 107 convention remains in force in those countries that have ratified it and that haven’t signed the convention 169. 4 william assies, (2003) “indian justice in the andes, re-rooting or re-routing” in ton salman y zoomers, annalis, eds., imagining the andes: shifting margins of a marginal world. amsterdam, the netherlands, aksant academic publishers. pp. 167-186. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 64 different international pressures as well as the social urgency derived from rising in arms of the zapatista army of national liberation, or ezln first day of entry into force of the free trade agreement with the united states and canada.5 i. what is the right to prior consent or fpic consultation? according to the convention 169 of the ilo, it’s a right to obtain a prior consent to the implementation of a series of hypotheses established in this normativity. it is a right that provides a path for dialogue on issues that have an impact on individual or collective life of indigenous and tribal peoples. the fpic consultation allows them to be heard on topics such as the implementation of a public policy, energy development which could be affecting their lands (between dozens of other possibilities). it is then a right given to indigenous groups, minorities, plural and diverse social actors, a legal tool which can express their feelings, offer an opinion or discuss the issue. this has allowed to become one of the few opportunities that these minorities into a fantastic tool of social struggle and political participation. it’s a human right that allows to set up, require and demand a dialogue with, usually minority groups against possible material or immaterial, usually before, effects that might occur or are giving, and this dialogue to generate one or more processes to consult on these possible effects, with the aim of obtaining a respect for the decisions and consensus taken. on this the national commission on human rights indicates that in accordance with the provisions of the former rapporteur special of the villages indigenous of the un rodolfo stavenhagen, the approach to human rights within the framework of the development of indigenous peoples, implies the respect of certain principles, such as: their recognition as subjects of law and not as objects of public policies; participation and empowerment; 5 de la peña says that in 1989 the international labour organization published the convention 169. this new document abandoned the discourse of assimilation of convention 107 in favor of being cognizant of the rights of indigenous peoples as such. mexico ratified the convention in 1991. at the time, president salinas was interested in gaining legitimacy for his government both within mexico and beyond. after a highly-contested election in 1988, he needed to build domestic support for radical reform policies and solicit international approval for the admission of mexico to the oecd. he also craved the partnership of the us and canada in the north american free trade agreement (nafta). the mexican post-revolutionary model, regarded with sympathy by the us government and academia in the 1940 – 70 period (schmidt 2001:25-7), was no longer approved by the powerful northern neighbor: its populist and protectionist legislation was a hindrance to foreign investment and free enterprise. accordingly, president salinas pushed legislative changes to allow for an easier flow of capital and commodities but most importantly, the reform of the article 27 of the mexican political constitution which was modified to allow privatization of peasant lands. de la peña, op. cit., 287-288. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 65 autonomy, territorial control, non-discrimination and the application of free, prior and informed consent.6 but at the same time, fpic consultation, it is identified as a human right when it stresses that “the right to prior, free and informed as being a general principle of international law, consultation is a collective human right of people and indigenous communities.”7 the mexican supreme court of justice of the nation (hereinafter scj) has held that the right of the indigenous peoples and communities in the consultation: “is a prerogative that is necessary to safeguard the selfdetermination of peoples, as well as other rights “cultural and heritage ancestral the constitution and the international treaties recognize them.”8 we must consider the right to fpic consultation, and the correlative duty to state as a human right linked with... multiple individual and collective human rights. in addition to express the right to participate, the right to be consulted is fundamental to the effective enjoyment of the right to communal ownership of indigenous and tribal peoples over lands that has been used and occupied traditionally, and relates directly to the right to cultural identity, in so far as the culture of these peoples can be affected by state decisions that concern them.9 ii. the basic legal foundations of the right to fpic consultation fpic finds one of its main legal origins in convention 169 on indigenous and tribal peoples of the international labour organization (convention 169). it is a vast document based on the of the 1957 ilo convention 107 improvements. the ilo convention 169 states in the preamble that the evolution of international law since 1957 and changes occurred in the situation of indigenous and tribal peoples in all regions of the world make it advisable to adopt new international standards in this field, to drop the orientation towards the assimilation of the earlier rules, that reaffirms the special contribution of indigenous peoples to cultural diversity. similarly, convention 169, is so far the main international instrument which gives indigenous peoples the right to possess and manage a territory, culture, collective rights and 6 national human rights commission, op. cit., p. 19. 7 idem 8 idem 9 organization of american states, (2011) the inter-american court of human rights highlights the importance of respecting the right of indigenous peoples to the consultation. available at http://www.oas.org/es/cidh/prensa/comunicados/2011/088.asp. consultation date: may 11th, 2019. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 66 language among others. it’s a document which binds signatory governments to respect one’s minimum standards to protect these rights implementation. for the first time, rights such as property and possession of traditional lands and establishing the obligation to ensure the demarcation and protection of the territories are recognized. this document also identifies and gives recognition and importance of the relationship of peoples and indigenous groups with their natural resources. these resources must be protected, especially when the state declares to be the original and only owner of the subsoil. this convention 169 made fpic consultation, a prerequisite for of legislative or administrative decision's adoption when they intend to take on economic development projects in the territories or areas of influence of these minorities. the right to fpic consultation, is established in ilo convention 169, directly in articles 6, fraction 1 and 1 a), to carry out the provisions of this convention, governments shall: a) consult the peoples concerned, through proper procedures and through their representative institutions, when legislative measures or administrative susceptible of affecting them directly were taken. thus, convention 169 gives responsibilities to governments to develop (with the free participation of peoples) actions and administrative agencies that protect their rights, their institutions, their property, their work, their culture and their environment. in addition, it raises the right of indigenous peoples to decide what their interests and control the process of economic, social and cultural development. (also, to the forms and modalities under article 6, fraction 1 b) and 1 c) indicated that: 1 b) establish the means through peoples can take part freely, at least to the same extent as other sectors of the population, and at all levels of decisionmaking in elective institutions and administrative bodies and other responsible for policies and programs which concern them; (1 c) establish means for the full development of the institutions and initiatives of these peoples and provide resources necessary for this.10 convention 169 then develops the fpic consultation presenting cases, imposing obligations, as well as conditions for this to take place. 10 international labour organization, (1989) c169 convention concerning indigenous and tribal peoples in independent countries. available at: https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:12100:0::no::p12100_ilo_code:c169. consultation date: may 8th, 2019. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 67 these items include items 7.111, 7.212, 7.413, 15.114, 5.215, 17.116, 17.217, 17.318 and 22.119, and 22.220. of these articles, it’s inferred the necessity of procedure to execute the procedures and possibilities mentioned. iii. the case “saramaka vs. suriname people” of the inter-american court of human rights the iachr, solved in 2007 the case “people saramaka vs. suriname”, ruling that analyses the international responsibility of suriname in the absence of effective measures for the recognition of the communal property of the saramaka people, as well as the lack of resources adequate and effectively to challenge this situation. in this verdict, the iachr indicated violations to 11 the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. in addition, they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly. idem. 12 the improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. special projects for development of the areas in question shall also be so designed as to promote such improvement. idem. 13 governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit. idem. 14 the rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. these rights include the right of these peoples to participate in the use, management and conservation of these resources. idem. 15 in cases in which the state retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands. the peoples concerned shall wherever possible participate in the benefits of such activities and shall receive fair compensation for any damages which they may sustain as a result of such activities. 16 procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected. 17 the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. 18 persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them. 19 measures shall be taken to promote the voluntary participation of members of the peoples concerned in vocational training programs of general application. 20 whenever existing programs of vocational training of general application do not meet the special needs of the peoples concerned, governments shall, with the participation of these peoples, ensure the provision of special training programs and facilities. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 68 article 2 (provisions of domestic law), article 3 (right to recognition of legal personality), article 21 (right to private property) and article 25 (judicial protection) of the american convention, in connection with article 1.1 of that instrument. the iachr recognized members of the saramaka people (suriname) as a tribal community subject to special measures that guarantee the exercise of their rights.21 in addition, this court considered that the saramaka people make up a tribal community whose social, cultural and economic characteristics are different from other sections of the national community, particularly thanks to the special relationship with their ancestral lands, and for themselves, regulate is at least in part, through its own norms, customs and traditions. following this, the iachr indicated fpic must meet a series of measures to ensure its effectiveness. first to make sure the effective participation of members of the saramaka people in plans for development or investment within its territory, the state has the duty to consult actively with the community, according to their customs and traditions. this duty requires the state to accept and provide information and involves constant communication between the parties. second consultations must be made in good faith, under culturally and appropriate procedures looking an agreement at all time. saramaka people, must be consulted in accordance with their traditions, in the early stages of any plan for development or investment, and not in the last stages, when the need to get the approval of the community arises. it’s necessary to give a time to communities for their internal discussions. the state should also make sure that members of the saramaka have information of possible hazards (including environmental and sanitation ones), to accept the plan of development or investment with proper knowledge and will. finally, the fpic should consider the traditional methods of the saramaka people to decision-making.22 the iachr would set up in this sentence some of the fundamentals of the consultation, such as free informed and culturally appropriate. in addition, the court considers that as regards development or large-scale investment plans that would have a greater impact within the saramaka territory, the state has the obligation, not only to consult the saramakas, but should also get the free, informed and prior consent of these, according to their customs and traditions. the court considered that the difference between ‘consultation’ and ‘consent’ in this context requires further analysis.23 21 idem. 22 idem. 23 idem. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 69 iv. vienna declaration and programme of action of the world conference of human rights an important precedent for the foundation of fpic consultation became consist in the declaration and the program of action of the world conference on human rights adopted in vienna in 1993. this the world conference on human rights recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. states should ensure the full and free participation of indigenous people in all aspects of society, in matters of concern to them. considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the states in which such people live, states should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and nondiscrimination, and recognize the value and diversity of their distinct identities, cultures and social organization...24 the vienna conference was the start of a process that ensured the eventual adoption of the optional protocol to the international covenant on economic, social and cultural rights. it entered into force in may 2013, finally allowing individuals to complain of alleged violations of economic, social and cultural rights at the international level. v. the mexican supreme court of justice the saramaka vs. suriname case has become for the legal systems in latin america, one of the main influences for the implementation of the fpic. ihrc established in this case which the main features of the fpic are. the main are include the be culturally appropriate, be informed and prior and be done in good faith. these parameters have not gone unnoticed in mexico. in fact, the mexican supreme court of justice issued on june 24th, 2016 the jurisprudence titled “indigenous peoples and communities. right to be consulted. essential requirements for compliance” that states: 24 united nations, (2013) world conference on human rights, vienna declaration and programme of action, 1993. available at: http://www.ohchr.org/documents/events/ohchr20/vdpa_booklet_spanish.pdf, p. 3-4 consultation date: may 11th, 2019. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 70 in accordance with the international standards in the field of protection of the rights of indigenous communities, the specific characteristics of the consultation procedure will necessarily vary depending on the nature of the proposed measure and the (impact on indigenous groups, so judges must look at in each specific case the consultation process carried out by the authorities to comply with the standards to be: to) prior to the act, since that should be performed during the planning phase of the project, in advance of the beginning of execution activities; (b) culturally appropriate, since you must respect their customs and traditions, because throughout the traditional methods used in making their decisions; in this regard, decisions taken by indigenous communities in accordance with the exercise of their practices and customs must be respected at all times, implying that the authorities must carry out the consultation, through media and suitable instruments for the indigenous communities, so that the lack of access to information technologies, does not mean a detriment in the exercise of this right; (c) informed, by requiring the existence of information you need about the nature and consequences of the project, and must take all necessary measures to make it understandable, so if the case requires it, must be provided in the languages or languages of the communities or peoples involved, as well as with all the elements necessary for their understanding, so that scientific technicalities do not form a barrier so that the communities can express an opinion; and (d) in good faith, then the fpic requires the absence of any kind of intimidation by part of the state or private people acting with the authorization or acquiescence. also, it must be made of a hostile environment that obliges communities or indigenous to a decision vitiated or precipitated.25 vi. the energy reform and the fpic consultation in 2013, the mexican government started a series of amendments to its political constitution, taxation laws, as well as allowing private companies having the possibility to invest in mexico’s state oil company (pemex) under a shared risk production. this was possible after more than a century of state only property of all energetics. all this movement was titled the “energy reform”.26 all these amendments to the legislation on fuel, electricity, land among others, included fpic as a key part of the new infrastructure and developments would generate. 25 mexican supreme court of justice, (2016) indigenous peoples and communities. right to be consulted. essential requirements for compliance. thesis: 2a. xxix/2016 (10a). book 31, tomo ii, tenth time, 2011956 registration page: 1212. gazette of the federation judicial weekly, available at https://sjf.scjn.gob.mx/sjfsist/paginas/detallegeneralv2.aspx?id=2011956&clase=detalletesisbl&semana rio=0. consultation date: may 8th, 2019. 26 federal government of mexico, (2014) energy reform. available at: https://embamex.sre.gob.mx/suecia/images/reforma%20energetica.pdf. consultation date: may 8th, 2019. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 71 installation of electric generators, pipelines, dams, when affecting land, sea and air, must be agreed with the local population previously the implementation of the development works.27 the law modifications include articles 120 of the law on hydrocarbons article 120.in order to consider, the interests and rights of the communities and indigenous peoples in which hydrocarbon industry projects are developed, the ministry of energy shall carry out prior consultation procedures, free e informed needed and any other activity necessary for safekeeping, in coordination with the ministry of the interior and the dependencies that correspond. in such consultation procedures the ministry of energy may provide for the participation of the agency, of the state productive enterprises and its subsidiaries and subsidiaries as well individuals, in accordance with the applicable regulations. consultation procedures will have as object reach agreements or, where appropriate, the consent in accordance with applicable regulations. the ministry of energy, prior opinion of the ministry of finances and public credit, may provide for allocations, as well as within the terms and conditions established for tenders, the amounts or the rules for the determination of the same, as the contractor or assignee must allocate the human and sustainable development of the communities or towns in which perform their activities, health, education, labour, inter alia, without prejudice to the obligations of the state.28 and articles 117 to 120 of law of the electric industry instruct: article 117infrastructure projects of the public and private sectors in the electric industry will attend the principles of sustainability and respect for the human rights of the communities and peoples in the regions where they intend to develop that infrastructure. article 118.the ministry shall inform the interested parties in the implementation of infrastructure projects in the electricity industry on the presence of social groups in situations of vulnerability in the areas in where the activities will be carried out for the execution of projects, to carry out actions necessary to safeguard their rights. article 119.in order to consider the interests and rights of the communities and indigenous peoples that develop power industry projects, the ministry should carry out the necessary consultation and any other activity necessary 27 idem. 28 congress of the union of mexico (2016) law on hydrocarbons. (official gazette) available at http://www.dof.gob.mx/nota_detalle.php?codigo=5355989&fecha=11/08/2014. consultation date: may 7th, 2019. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 72 for safekeeping, in coordination with the ministry of the interior and the dependencies that correspond. in such consultation may take part in the cre, productive state enterprises and their subsidiaries and affiliates companies as well as people. article 120.those interested in obtaining permits or authorizations to develop projects in the electrical industry shall submit to the ministry a study of the social impact which must contain the identification, characterization, prediction and evaluation of the social impacts that could arise from its activities, as well as proper mitigation measures. these regulations give to the ministry of energy faculties in terms of fpic consultation to consider the interests and rights of the communities and indigenous peoples in which projects in the energy sector will be develop. vii. the cherán case one of the most influential cases for the development of the fpic in mexico was the case of the municipality of san francisco cherán, michoacán. the indigenous community of san francisco cherán is located in the federal state of michoacán, mexico. after constant violent conflicts, the community decided to take care of their own security (this because the federal state was not able to provide) by conforming communal protection committees and forcing all the local authorities to quit and abandon the community. when they were about to hold elections in the municipality, the community submitted to the electoral authority of michoacán a document with the resolution adopted by a local general assembly of not attending the elections. few weeks later a second letter was sent to the authority requesting that, as indigenous community, they could nominate authorities according to own rules. the authority denied the request. as a result, the community filed a petition with the regional electoral court in defense of his political rights. the court recognized the right to self-determination of the community and suspended the “official” vote. so, the community started their own election process to pick up their authorities.29 this case became paradigmatic, by the extent of the resolution taken for the community and the successful story of the fpic consultation. until now the community has not a formal authority elected under the federal system and it’s the community who is still organized and deciding in a collective general assembly. 29 almut schilling-vacaflor y riccarda flemmer, (2013) “strengthening organizations in latin america” program “strengthening of indigenous organizations in latin america. the right to prior consultation: legal norms, practices and conflicts in latin america. germany, deutsche gesellschaft für internationale zusammenarbeit, p. 42. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 73 viii. on which fpic consultation is used different mentions on what can be consulted are found on different conventions, laws and pacts where it’s possible to find a group of assumptions and general hypothesis in which a group of constants “that” are identified or about what can or should consult. in other words, we do not have a single criterion, so each case or situation of inquiry must be interpreted in a way. the following are a few basic examples of when this happens. viii. 1. the mexican political constitution the supreme law of mexico, its constitution, does a short mention to consultation when declares it is mandatory to elaborate the national development plan of the country one there is a new president in charge. this is done every six years. article 2 paragraph b. ix. (federal government will generate) a consultation with indigenous peoples when elaborating the national development plan and the ones for the mexican states will be done… trying to incorporate on all those cases the recommendations and proposals made.30 also, article 26. a points out: the state will organize a national democratic planning system for the development of the country to give strength, dynamism, competitiveness, durability and fairness to economy’s growth for the independence and the political, social, and democratization of the nation. the purpose of the national project contained in the constitution will determine the objectives of the planning. the planning will be democratic and deliberative… aspirations and demands of society will be collected and added to the plan and development programs. there will be a national development plan which will be mandatory for the federal administration. the law shall entitle the executive to establish the procedures for participation and popular consultation in the national democratic planning system, and the criteria for formulation, implementation, control and evaluation of the plan and development programs. this means, the mexican legal systems stablish a consultation prior to the drafting of a document called the national development plan. however, it cannot be compared to a fpic consultation. there is not any model, scheme, or anything to assure the right participation of the indigenous people. 30 congress of the union, (2019) mexican political constitution. (official gazette) available at: http://www.diputados.gob.mx/leyesbiblio/pdf/1_240217.pdf. consultation date: may 7th, 2019. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 74 viii. 2. the ilo convention 169 over three decades, the ilo indigenous and tribal peoples convention, 1989 (no. 169) has played a significant role in facilitating the development of laws, policies, institutions and programs aimed at promoting and securing the rights and well-being of indigenous and tribal peoples. measures inspired by the convention, taken by ratifying and other countries, include tools for making indigenous peoples visible in statistics based on self-identification, land rights, mechanisms for consultation and participation, measures regarding health and education, among others.31 the ilo 169 indicates concrete possibilities as mandatory to consult in the following cases: article 6 1. in applying the provisions of this convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them; (c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. and article 15.2 when states in cases in which the state retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands. the peoples concerned shall wherever possible participate in the benefits of such activities and shall receive fair compensation for any damages which they may sustain as a result of such activities. viii. 3. the ministry of agrarian, territorial and urban development in 2017, the ministry of agrarian, territorial and urban development of mexico, enact a law titled “agreement by which determine the assumptions of fpic consultation of indigenous communities and peoples, by actions and/or projects performed by the ministry 31 international labour organization, (2019) celebrating the 30th anniversary of the indigenous and tribal peoples convention, 1989 (no. 169): “learning and looking ahead. https://www.ilo.org/global/topics/indigenous-tribal/wcms_697625/lang--en/index.htm; consultation date: may 8th, 2019. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 75 of agrarian, territorial and urban development”. this normativity exposes 14 possibilities to generate a fpic. article 2. fpic consultation will be requested, when an action or project, linked to indigenous peoples and communities would be proposed or adopted all this according to the requirements of the mexican constitution and the international standards in this area. this will be done under to the following assumptions: to) when a new population center or the enlargement of an old one is planned; (b) when the different kinds of property or possession would be regularized under the agrarian law; (c) when new plans or projects of urban development, control and growth of cities and metropolitan areas of the country, as well as population centers would be carried out, as well when implementing their infrastructure communications and services; (d) when a different authority request for assistance to carry out implementation of programs for conservation of lands and waters included in indigenous communities; (e) when establishing plans and actions over wastelands and national lands; (f) when the needs of land for urban development and housing are foreseeing, in accordance with the availability of water supply requirements determined by the ministry of environment and natural resources; (g) when programs to fill the needs of urban land and the establishment of provisions and reserves for the adequate development of population centers are developed, supported and implemented; (h) to promote the construction of infrastructure and equipment for regional and urban development; (i) when dealing with expropriation procedures by reason of public convenience…; (j) when there is an intention to acquire and transfer real estate, in order to have a range of land suitable for development, considering soil’s demand and aptitude; (k) to carry out and execute actions and programs of regularization of the soil; (l) when it is intended to the deliver funds arising from expropriations, prior occupations and reimbursements; (m) when implementing agrarian development programs that increase the capacities of the ejido, communal, settler, possessionary and peripheral population centers; and (n) when files relating to projects directly affecting indigenous peoples and communities are integrated.32 32 ministry of agrarian, territorial and urban development, (2017) agreement by which determine the assumptions of fpic consultation in indigenous communities and peoples, by actions and/or projects josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 76 viii. 4. the declaration of the united nations on the rights of indigenous peoples the united nations declaration on the rights of indigenous peoples recognizes the right of peoples to be consulted in the following cases: article 10. indigenous peoples shall not be forcibly removed from their lands or territories. no relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. article 11 1. indigenous peoples have the right to practice and revitalize their cultural traditions and customs. this includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. states shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. article 30 1. military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. states shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and through their representative institutions, prior to using their lands or territories for military activities. article 32 1. indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. states shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall performed by the ministry of agrarian, territorial and urban development. (official gazette) available at: http://www.dof.gob.mx/nota_detalle.php?codigo=5477517&fecha=24/03/2018. consultation date: may 18th, 2019. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 77 be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.33 viii. 5. the world conference on human rights on 25 june 1993, it was indicated at the world conference on human rights, that: “states should make sure the full and free participation of indigenous people in all aspects of society, in particular in” the issues that concern them”34, that is, which is always on game interest affecting indigenous communities and peoples. in this conference occurs a fundamental change in human rights theory, it is accepted that human rights can be enjoyed both in public and in private and can be violated in both areas. until that time the system was based on violations committed by states and concerned with the political and social space. for the first time, acts of people, occurring in private space, can result in state responsibility. ix. consultation rules in mexican states on fpic mexico is organized under a federation scheme. it is integrated with 32 different states who also rule and can decide over their internal affairs. this means some states can decide over the matter’s consultation procedures can be done. some states have made laws where they rule which issues can be consulted. among them are legislative measures or administrative likely to affect them directly (ruled in the states of chiapas, chihuahua, colima, durango, guanajuato, guerrero, jalisco, mexico, morelos, puebla, querétaro, san luis potosí, sonora, tabasco, veracruz, yucatan). when proposing reforms to indigenous affair’s agencies (san luis potosí), when institutions and mechanisms for the preservation, protection and defense of indigenous affairs, culture, language, customs and traditions would be established (quintana roo). when doing the state and municipal development plans (baja california, durango, hidalgo; jalisco, morelos, new león, puebla, quintana roo, sonora, tabasco, san luis potosí). when defining and implementing public policies and programs that may affect them (such as decisions that may directly or indirect affect their daily lives, their social organization, their natural or cultural environment; objectives or development) (guerrero, jalisco, morelos, puebla, tabasco, chihuahua) plans for urban development that may affect indigenous territory (san luis potosí). 33 united nations, (2007) the united nations declaration on the rights of indigenous peoples. available at: http://www.un.org/esa/socdev/unpfii/documents/drips_es.pdf. consultation date: may 11th, 2019. 34 united nations, (2013) world conference on human rights, vienna declaration and programme of action, 1993. available at: http://www.ohchr.org/documents/events/ohchr20/vdpa_booklet_spanish.pdf, consultation date: may 11th, 2019. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 78 also when doing works or planning projects that may impact on indigenous communities’ natural resources (baja california, chiapas, querétaro, oaxaca, chihuahua, tlaxcala, veracruz, yucatan); programs, projects and actions within the lands and territories of the indigenous communities (chihuahua, morelos) when granting concessions and permits for the exploitation of natural and cultural resources located in their lands and territories (chihuahua, san luis potosí). when expropriating lands belonging indigenous communities (chihuahua) doing programs or projects related to practice and revitalize their traditions and customs (chiapas) educational programs that recognize their cultural heritage (baja california, oaxaca, quintana roo, tabasco, tlaxcala) actions to eliminate, within the educational system and laws, adjectives that may denigrate, prejudice or discriminate indigenous people. (morelos, nayarit, quintana roo) when defining which administrative offices shall adopt and implement actions to attend, resolve or assist issues that may arise in indigenous languages (chiapas) any type of resettlement or displacement of indigenous communities when these actions do not come from the needs and the will of them (puebla, querétaro).35 x. holders of the fpic right consultation in mexico convention 169 of the ilo states that indigenous and tribal peoples possesses fpic rights under certain conditions. article 1 this convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.36 35 center for social studies and public opinion of the chamber of deputies of mexico, (2014) rights of indigenous peoples in mexico in terms of consultation, participation and dialogue. advances and challenges from the legislative sphere. available at: http://www5.diputados.gob.mx/index.php/camara/centros-deestudio/cesop/estudios-e-investigaciones/documentos-de-trabajo/num.-167.-derechos-de-los-pueblosindigenas-en-mexico-en-materia-de-consulta-participacion-y-dialogo.-avances-y-desafios-desde-el-ambitolegislativo. consultation date: may 7th, 2019. 36 international labour organization. op. cit. p. 5. free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 79 schilling-vacaflor and flemmers indicate that fpic consultation is not an exclusive right for indigenous or tribal groups. they point out that the consultation may be related to other minority groups. they reflex on this issue: is the right to consultation is only there for indigenous peoples? convention 169 of the ilo refers explicitly to the right to consultation of indigenous and tribal communities. in the most of states latin american is distinguishes between the right of the population general to them hearings public and the right of them peoples indigenous to the consultation prior... in the frame of the exploitation of resources natural not must understand is as a right exclusive of those peoples indigenous... therefore, groups not indigenous people with similar characteristics (such as the dependence of physical survival or cultural integrity of conservation and the use of a given territory) should have the right to prior consultation and fpic.37 also, a similar approach can be found in the law proposal issued by the former representative christian joaquín sánchez, when proposed “the general law of indigenous consultation and reform the article 2nd. of the law on the national commission for the development of indigenous peoples” in its article 7. peoples and indigenous communities in mexico are subjects of the right of consultation in accordance with the political constitution of the mexican united states, international treaties ratified by our country and of this law. this means that owners of the fpic’s right may be a larger number. in this consultation, there can be other groups who might be called to be part of the consultation which would allow that this was broader and therefore to include more voices and elements to make a better decision. xi. when to use the fpic in mexico? the mexican supreme court of justice states that every authority, when acting like that, should analyze whether they must initiate a fpic. this means they must generate a process of reflection if actions or abstentions taken, cause or not an affectation. this means this is left to the will of the authorities when a fpic should be done. the ministry of energy receives a document titled “study of social impact”. this is a paper done by every company, processes are started to implement a work related to energy projects. here, the company suggests whether generate a fpic or not. at this point a couple of fundamental problems arise. first, it is the developer of the project who indicates if they believe or not a fpic must be done or not, and second the authority does not necessarily will have the understanding or the political disposition to ask 37 almut schilling-vacaflor and riccarda flemmer, op. cit. p. 19. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 80 for the consultation. this means that it goes through double analysis in which two prior approvals are needed to start the fpic consultation, and both are not compulsory. also, up to this point, there is no clarification on the way the fpic must be done, or even if one must be started, the space, time and its jurisdiction. this because of that there is not an explanation of when a fpic consultation can start, the time to develop and especially when to conclude. an analysis of the “protocol for the implementation of fpic consultations with indigenous peoples and communities in accordance with the standards of the convention 169 of the international labour organization on indigenous peoples and tribal in independent countries”38, tells us the implementation of fpic consultation infers a methodology39 that is mandatory once the fpic has begun. but until this point there is not an instruction to make one, there is not a definition on who will pay for it, and who can participate. about similar problems, the former special rapporteur of indigenous affairs of un james anaya in his “extractive industries report” pointed out that the consultations are not “a simple if a default decision, or as a means of validating an unfavorable agreement for” the indigenous peoples affected “and that” should be mechanisms by which indigenous peoples may reach agreements favorable to its own priorities and development strategies, provide tangible benefits and, on the other hand, promote the “ enjoyment of their human rights”.40 xii. conclusions 1. the fpic consultation is a human right which is in the process of discovery and development in mexico. this causes uncertainty for a fair and proper application. it is a right on which there are no entirely adequate or minimal criteria for its effective implementation, its methodology and the conceptual definitions about who can access the fpic. this makes stakeholder’s participation might be so wide that actors either they fade or become legally possible for all who wish to participate.41 38 commission for the development of indigenous peoples, (2013) protocol for the implementation of consultation to indigenous peoples and communities in accordance with the standards of the convention 169 of the international of labour organization on indigenous tribal peoples and in independent countries. mexico. 2013 pp. 22. 44. 39 this legal instrument sets a procedural path of five stages: 1. integration of information and definition of basic agreements, 2. design and programming of the consultation, 3. implementation, 4. feedback of results, 5. follow-up and evaluation of implementation. ibid. p. 6. 40 national commission on human rights. op. cit. p. 20. 41 the consultation according to this protocol has 4 phases, in within each one has its own one, adding in total 16 to follow stages. these are: phase i, development of the consultation. 1. starting point. phase ii. fpic design. 1. on identification of actors, 2. delimitation of the fpic, 3. determination of the fpic’s goals, 4. determination of the procedures, 5. design of a program of action, 6. determination of budgets, 7. proposition of commitments. phase iii. first agreements for the fpic. 1. calling the parties, 2. accreditation of free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 81 2. this could be solved through a proper regulation to organize the way the fpic consultation should be conducted under a uniform criterion. this can help organize and harmonize the regulations issued by all the states of mexico without retiring them attributions to start their fpics when needed. also, this would help the implementation of an effective methodology for their implementation by federal, state and municipal governments. 3. it is to be noticed that when speaking of fpic consultation, laws use a group of adjectives such as prior, in good faith or culturally adequate. the nature of these features is to give the fpic a minimum livelihood so users can have a previously guaranteed minimum ground that allows players not to be in a position of disadvantage to start a dialogue. therefore, these features become inherent to the fpic and they accompany you during the entire process. if a fpic is not done under these assumptions, then we could have a vice in. these features, therefore become an obligation that must be a right that must be respected and fulfilled. 4. finally, the fpic in mexico has been confused with a normal query or a simple consultation. laws done by mexican states show us there is a total confusion on this subject. unfortunately, the mere origin derives from the energy laws or their similar, are to ambiguous and the way to ask for one from the stake holders is hard, making its last and final goal being a tool for ensuring justice and peace still something far away in mexico. references almut schilling-vacaflor y riccarda flemmer, (2013) strengthening organizations in latin america, program “strengthening of indigenous organizations in latin america. the right to prior consultation: legal norms, practices and conflicts in latin america.” germany, deutsche gesellschaft für internationale zusammenarbeit. assies, william, (2003) “indian justice in the andes, re-rooting or re-routing”, en ton salman y zoomers, annalis, eds., imagining the andes: shifting margins of a marginal world. amsterdam, the netherlands, aksant academic publishers, pp. 167-186. center for social studies and public opinion of the chamber of deputies of mexico, (2014) rights of indigenous peoples in mexico in terms of consultation, participation and dialogue. advances and challenges from the legislative sphere. available at: http://www5.diputados.gob.mx/index.php/camara/centros-de representatives, 3. generating and sharing information, 4. agreement on the schedule of the fpic, 5. agreements for the implementation of the consultation, 6. time for communal deliberation, 7. adoption and formalization of agreements. phase iv. implementation and follow-up: 1. follow-through of agreements, 2. monitoring the commitments. ibid. pp. 3 4. josé israel herrera the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 82 estudio/cesop/estudios-e-investigaciones/documentos-de-trabajo/num.-167.derechos-de-los-pueblos-indigenas-en-mexico-en-materia-de-consultaparticipacion-y-dialogo.-avances-y-desafios-desde-el-ambito-legislativo. consultation date: may 7th, 2019. commission for the development of indigenous peoples. (2013) protocol for the implementation of consultation to indigenous peoples and communities in accordance with the standards of the convention 169 of the international of labour organization on indigenous and tribal peoples in independent countries. mexico. 2013 pp. 22. 44. congress of the union, (2019) mexican political constitution. (official gazette) available at: http://www.diputados.gob.mx/leyesbiblio/pdf/1_240217.pdf. consultation date: may 7th, 2019. congress of the union, (2016) hydrocarbons law. (official gazette) available at: http://www.dof.gob.mx/nota_detalle.php?codigo=5355989&fecha=11/08/2014. consultation date: may 7th, 2019. congress of the union, (2014) law of the electric industry. (official gazette) available at: http://www.dof.gob.mx/nota_detalle.php?codigo=5355986&fecha=11/08/2014. consultation date: may 7th, 2019. de la peña, rodolfo, (2006) “a new mexican nationalism? indigenous rights, constitutional reform and the conflicting meanings of multiculturalism”, nations and nationalism, vol. 12, pp 287. deputy chamber of mexico, (2017) initiative of law the general law of indigenous consultation and reform the article 2nd. of the law on the national commission for the development of indigenous peoples of deputy. christian joaquín sánchez. available at: http://gaceta.diputados.gob.mx/gaceta/63/2017/mar/20170323-v.html. consultation date: may 7th, 2019. federal government of mexico, (2014) energy reform. available at: https://embamex.sre.gob.mx/suecia/images/reforma%20energetica.pdf. consultation date: may 8th, 2019. inter-american commission on human rights, (2007) case of the saramaka people v. suriname (preliminary objections, merits, reparations, and costs), available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_172_esp.pdf. consultation date: may 7th, 2019. international labour organization, (1989) c169 convention concerning indigenous and tribal peoples in independent countries. available at: https://www.ilo.org/dyn/normlex/en/f?p=normlexpub:12100:0::no::p12100_i lo_code:c169. consultation date: may 8th, 2019. international labour organization, (2019) celebrating the 30th anniversary of the indigenous and tribal peoples convention, 1989 (no. 169): “learning and looking free, prior and informed consent (fpic) in mexico: elements for its construction and challenges the age of human rights journal, 12 (june 2019) pp.62-83 issn: 2340-9592 doi: 10.17561/tahrj.n12.4 83 ahead. https://www.ilo.org/global/topics/indigenous-tribal/wcms_697625/lang-en/index.htm; consultation date: may 8th, 2019. mexican supreme court of justice, (2016) indigenous peoples and communities. right to be consulted. essential requirements for compliance. thesis: 2a. xxix/2016 (10a). book 31, tomo ii, tenth time, 2011956 registration page: 1212. official gazette. available at https://sjf.scjn.gob.mx/sjfsist/paginas/detallegeneralv2.aspx?id=2011956&clase= detalletesisbl&semanario=0. consultation date: may 8th, 2019. ministry of agrarian, territorial and urban development, (2017) agreement by which determine the assumptions of fpic consultation in indigenous communities and peoples, by actions and/or projects performed by the ministry of agrarian, territorial and urban development, (official gazette) available at: http://www.dof.gob.mx/nota_detalle.php?codigo=5477517&fecha=24/03/2018. consultation date: may 8th, 2019. ministry of energy, (2014) manual of procedures of the office of social impact and surface occupation of the ministry of energy. available at: https://www.gob.mx/cms/uploads/attachment/file/176174/direcci_n_general_de_i mpacto_social_y_ocupaci_n_superficial.pdf. consultation date: may 8th, 2019 national human rights commission, (2018) general recommendation 27/2016 on the right to prior consultation of indigenous peoples and communities of mexico. available at: http://www.cndh.org.mx/sites/all/doc/recomendaciones/generales/recgral_027.pdf . consultation date: may 11th, 2019. organization of american states, (2011) the inter-american court of human rights highlights the importance of respecting the right of indigenous peoples to the consultation. available at http://www.oas.org/es/cidh/prensa/comunicados/2011/088.asp. consultation date: may 11th, 2019. united nations, (2007) the united nations declaration on the rights of indigenous peoples. available at: http://www.un.org/esa/socdev/unpfii/documents/drips_es.pdf. consultation date: may 11th, 2019. united nations, (2013) world conference on human rights, vienna declaration and programme of action, 1993. available at: http://www.ohchr.org/documents/events/ohchr20/vdpa_booklet_spanish.pdf, consultation date: may 11th, 2019. references natural law theory in spain and portugal the age of human rights journal, 1 (2013) 1 natural law theory in spain and portugal antonio-enrique pérez luño 1 abstract: this article intends to approach briefly the development of natural law theories in the iberian peninsula, focusing in more detail on their evolution and tendencies in the 20th and 21st centuries when they are at a crossroad. due to this succinctness, the approach will be fundamentally descriptive, however it will try to consider the wide and heterogeneous character of such theories as well as their implications for the doctrine of human rights. keywords: natural law, human rights, philosophy of law, moral values. contents: i. methodology, scope and philosophical criteria; ii. natural law in the spanish and portuguese traditions; iii. 20th century representative scholars and tendencies; iv. natural law in private law; v. natural law and human rights; vi. natural law theories in 20thcentury portugal; vii. conclusion: premises for an assessment i. methodology , scope and philosophical criteria designing a summary approach to the current scenario of natural law theory in spain and portugal is not an easy task. traditionally, theologians, philosophers, sociologists and lawyers have displayed a committed interest in this area over the centuries and hence produced abundant literature that renders any synthesis attempt quite a complex enterprise. on the other hand, there is an undeniable plurality of perspectives dealing with natural law, which makes it appropriate to adopt the open and flexible rationale mentioned by entico pattaro in his presentation to his legal philosophical library (pattaro 1982, p. 17). considering the wide and heterogeneous character of natural law theories in spain and portugal, to establish sharp and aprioristic distinctions may be useful just for partial research projects, but it stands as an inadequate choice for the general scope adopted in this paper. the aim and extension of this essay also recommend a fundamentally descriptive approach, which does not entail a total discard of personal positioning when this when this would appear to be unavoidable. besides, these boundaries imply that scholars, issues and theories are addressed in a necessary non-exhaustive fashion. 1 professor of philosophy of law (universidad de sevilla, spain). antonio-enrique pérez luño the age of human rights journal, 1 (2013) 2 comments need also to be made regarding some fundamental methodological groundings. bearing in mind that it is our current philosophical and legal panorama which this paper attempts to describe, it seems advisable to consider theories as something alive, in-the-making, so to say, thus excluding the acceptance of a slant drawn upon rigid, wellestablished and unalterable doctrinal conceptions. the scholar who attempts a historical study of their present time undertakes some form of ursprüngliche geschichte, in its hegelian meaning. he counts on a close look based upon his direct experience as both actor and chronicler of the described reality, but, at the same time, he lacks the sort of certainty that only distance may grant. one final warning. there are some shared historical and cultural features that enable the joint treatment of both the spanish and portuguese natural law theories. yet, it would certainly be a mistake to assume an undifferenced approach to these two traditions, which count on their own history and peculiarities. consequently, a common treatment is provided for the forging era of these traditions, in which the interchange of ideas and approaches was more intense; while a separate presentation is considered more appropriate for 20th century theories, where differences are more acute. ii. natural law in the spanish and portuguese traditions the spanish institutionalized study of natural law may be considered to coincide with the founding in 1228 of the oldest spanish university – the university of salamanca. ius commune, civil law and canonical law were studied at this institution prompted by deep theological, philosophical and political concerns. at the same time, many issues that are currently included within the scope of legal philosophy were treated in philosophia practica classes, where an aristotelian model inspired the approach to moral, legal and political problems. in contrast, little interest was shown for positive law during a long period. this piece of information did not passed unnoticed for chaim perelam, who remarked, in his study on “la réforme de l'enseignement du droit et la nouvelle rhétorique”, that the famous university of salamanca library dedicates little space for classical works on spanish law, while literature devoted to theology, moral philosophy and natural law is widely abundant (perelman 1975, p. 5). from the beginning of the 15th century, and especially during the 16th and 17th centuries, scholars pertaining to the so-called “escuela de salamanca” (salamanca school), also known in a broader manner as “clásicos españoles del derecho natural” (spanish natural law classics), produced copious literature gathered under the titles de justitia et iure and de legibus, which can inform an understanding of the configuration of modern natural law. even more, the very expression “natural law” appears to have been first used by a spanish scholar, fernando vázquez de menchaca (1512-1569) in his de vero iure naturali (circa 1560), and not by hugo grotius, as it is sometimes assumed. this era, doubtlessly one of the most brilliant epochs for the spanish legal-philosophical thinking, did not only see the forging of modern natural law, but also the birth of criminal law natural law theory in spain and portugal the age of human rights journal, 1 (2013) 3 theory thanks to the contributions of alfonso de castro (1495-1558) as well as the new conceptions of the law of the peoples due to the decisive works of francisco de vitoria (1492-1546) and the aforementioned vázquez de menchaca. a crucial factor for the vigour of natural law thinking in this era was its antidogmatism. spanish scholars did not limit themselves to a servile reception of scholastic sources. on the contrary, they subjected those sources to a critical revision according to the exigencies of that time. they also showed an independent attitude, sometimes daring to overtly criticize the established power. it was this attitude that led francisco de vitoria and bartolomé de las casas (14741566) to defend a position contrary to the political interests of the crown, designing the exigencies for an admissible legal status for the recently conquered peoples of the new world. in this cultural atmosphere, domingo de soto (1494-1560) and francisco suárez (1548-1617) proposed valuable theses in order to identify the democratic grounding of the government, while jesuit father juan de mariana (1536-1624) established a definite characterization of the right of resistance. it comes as no surprise that the spanish legalphilosophical thought served in this age as a model for the renovation of natural law undertaken by grotius and for the theoretical justification of popular sovereignty launched by althusius (pérez luño 1994; trujillo 1997; truyol y serra 1975). the university of coimbra in portugal, playing an analogous role as a spreading focus of philosophical and legal thought within the country, assumed a similar position to that of the university of salamanca in spain. in the renaissance era, cultural relations between these two countries were intense and the theses of the spanish classics of natural law found in portugal a receptive soil for its diffusion and development. manuel paulo merêa, the most important figure in portuguese 20th century legal historiography, dedicated an interesting book to the study of spanish jesuit francisco suárez, paying special attention to his time as a professor in coimbra (merêa 1917). another spanish jesuit, luis de molina (1535-1600) lectured in both coimbra and evora universities, contributing to the forming of a relevant school of scholars devoted to natural law in the latter one (díez-alegría 1951). balancing this flow, some portuguese intellectuals developed their work in spain. the most remarkable was lisboan serafim de freitas (1570-1633), who lectured in valladolid and opposed the theses on freedom of navigation of fernando vázquez de menchaca, while sharing university location in the castilian city. menchaca’s ideas were furthered by grotius in his work de mare liberum. freitas contested both scholars with his "mare clausum" theory, in which he rejects the idea that the seas may be considered as “common things” (res communes) that may not be object of occupation, appropriation or limitation of use. the life of portuguese antonio vieira (1608-1697) may be considered to run parallel to that of the spanish dominican bartolomé de las casas. born in lisbon, he spent most of his life in brazil, where he contributed to the defence of the dignity and liberty of amerindians in the name of the ethical, legal and political exigencies he managed to derive from his humanist conception of natural law. antonio-enrique pérez luño the age of human rights journal, 1 (2013) 4 the 18th century saw the inception of an era of decadence in the study of natural law, as a reflection of the profound economic, social and political crisis that was striking spain at that time. by the middle of the 18th century, the academic vices that pervaded the university of salamanca were not limited to the lecturing and research realms. the very structure of the university showed signs of corruption, made evident through the selling of professorships and degrees. there is certainly quite an abyss between the university of salamanca that served as a spreading pole for the spanish classical natural law doctrines during the renaissance and baroque era and the deteriorated version found at the beginning of the 18th century. the crisis did not hit the portuguese universities that hard thanks to policies inspired by the european enlightenment adopted by marqués de pombal. by the end of the century, spain also initiated an enlightenment movement during the rule of king carlos iii. in this time, portugal and spain experienced the penetration of rationalist versions of natural law, which encountered special diffusion in the so-called "escuela iluminista salmantina" (salamanca illuminist school). the penetration of the spirit of enlightenment brought fresh air to the salamanca academic atmosphere, saturated by the practice of corruption and indulgence in fruitless routines. this intellectual renovation was facilitated, in the case of legal studies, by the emergence of a committed interest in the study of ius naturae et gentium, which started to be taught in reales estudios de madrid and later in the universities of valencia, granada and zaragoza. no special chair or professorship was created in salamanca for this discipline, but it was cultivated as a part of other subjects. the first professor to hold a chair for this specific area in madrid was joaquín marín y mendoza (1721-1782), author of the work historia del derecho natural y de gentes (history of natural law and law of the peoples), which played a pioneering role in the penetration of enlightenment natural law theories. during the 19th century, the institutionalization of natural law as an academic discipline became one of the main topics within the ideological controversy sustained by liberals and traditionalists in university. at the beginning of that century, liberal ideology promoted the establishment of chairs of natural law in the law faculties, with syllabuses inspired by rationalism and contractualism, thus opposing the conservative and traditionalist tendency to defend a merely scholastic study of natural law in the philosophy faculties. the influence and diffusion of german idealism contributed to renovate natural law theories. some local peculiarity needs to be acknowledged here, since the most studied idealist scholar was krause, thus leaving aside the great masters of this trend: kant, hegel, fichte… in contrast, the spread of legal historicism and philosophical positivism led to a gradual decline of natural law theories which aggravated by the end of the 19h century (pérez luño 2007; truyol y serra 2004). iii. 20th century representative scholars and tendencies the 20th century saw the initiation and development of the main trends and philosophical movements that still currently prevail. a thorough analysis of the works and doctrines of the last century falls quite beyond the reasonable boundaries of this essay. natural law theory in spain and portugal the age of human rights journal, 1 (2013) 5 instead, a sensible summarizing approach will attempt to provide a description of the cultural horizon covering the reflections on natural law developed in spain during the last century. with such an aim, the different theoretical positions and research topics will be grouped in three representative trends: legal naturalism based upon axiological groundings and neokantian adscription; neo-scholastic natural law doctrines; and, finally, those versions characterised by their innovative, vitalist and experiential approach to natural law. through the 20h century several doctrines developed within legal theory and philosophy that build up the different versions of natural law. the majoritarian adscription of philosophers to natural law does not entail some sort of uniformity regarding the fashion by which the very concept of natural law is understood and defined. in fact, a direct assumption of a high degree of conceptual heterogeneity is found among spanish 20th -century natural lawyers. the frequently denounced “multivocality and equivocalness” of natural law found a firm confirmation through this variety of natural law theories, no matter how much diffusion and preponderance one single version may have achieved. hence, the need to establish some theoretical distinctions when approaching this general philosophical trend. iii.1. axiological and neo-kantian approaches when addressing the situation of natural law in spain before the 1936 civil war, reference needs to be made to a group of scholars whose activity focused on the study and diffusion in spanish soil of some of the most influential legal-philosophical movements developed in the first half of the past century. these scholars tried to place the basis for their natural law conceptions away from 19th-century neo-scholastic and krausist doctrines that then prevailed within foreign legal philosophy. this new grounding for natural law undertook, in most cases, axiological and neo-kantian approaches. one of the most relevant representatives of the neo-kantian trend was adolfo bonilla san martín (1875-1926), according to whom every legal rule has both content and form. the content is something established by experience, while the form is an a priori element. the so-called natural law cannot be but a study of the a priori forms of legal experience, a sort of legal logics, a specific normative formal structure with no concrete subject or content of any kind (bonilla san martín 1897). a higher degree of fidelity to neo-kantianism may be found in the works of francisco rivera pastor and wenceslao roces, who, though influenced especially by stammler, showed a relevant methodological freedom in their attempts to draw from some other philosophical proposals in order to mitigate stammler’s exacerbated formalism. wenceslao roces (1897-1992) played a decisive role in the diffusion of neo-kantian legal philosophy in spain through his exemplary translations of the main works of radbruch and, particularly, stammler. francisco rivera pastor (1878-1936) wrote some relevant studies on the legal projection of kantian thought which include his essays algunas notas sobre la idea kantiana del derecho natural (some notes on the kantian idea of natural law) and la antonio-enrique pérez luño the age of human rights journal, 1 (2013) 6 razón pura en sí misma y como fundamento del derecho (pure reason by itself and as a grounding for law). his most ambitious attempt to project kantian or, to be more accurate, neo-kantian ideas on the legal realm was his monograph lógica de la libertad (the logics of freedom). the main aim of this work lies precisely in thinking and re-elaborating the basic concepts and categories within legal theory from a neo-kantian natural law perspective. the influence of radbruch and stammler may be noticed in rivera pastor’s purpose aiming at overcoming kantian formalism (rivera pastor 1913). iii.2. neo-scholastic natural law doctrines most of the neo-scholastic natural law doctrines were developed after the end of the civil war, a period in which they attained an almost absolute preponderance among the legal philosophers of that time. these theories tried to refer to and/or draw upon classic sources, particularly those pertaining to the spanish school. there were, nonetheless, attempts of assimilation of the main contemporary catholic natural law tendencies, most of them aimed at rendering them compatible with the traditional thought with a higher or lower degree of flexibility. one of the most significant focuses of natural law think was created in the first decades of the 20th century in the university of zaragoza, around the figure of professor luis mendizábal martín. among his disciples we find his own son alfredo mendizábal villalba, as well as miguel sancho izquierdo, enrique luño peña, and, at the beginning of his academic career, luis legaz lacambra. this group of scholars, which i proposed to call the “aragonese school of natural law” back in the 70s, though much bounded to neo-thomism, were also influenced by the neo-kantian legal philosophy of stammler, radbruch and fundamentally by giorgio del vecchio. luis mendizábal martín (1859-1931) stands as a linking piece between the 19th century treatises and the natural law cultivated at the beginning of the 20th century. the works of professor mendizábal martín, initiated in 1980 with his elementos de derecho natural (elements of natural law) and continued through the seven editions of his tratado de derecho natural (treatise of natural law) –the last of which was re-elaborated by his son alfredo mendizábal villalba (1897-1981)– represent at the same time the hindmost example of 19th century natural law ways and concerns and the opening to the new horizons and problems of the discipline at the beginning of the following century. mendizábal martín defines natural law as a law enacted by properly driven reason, based upon facts and founded on the divine law. his conception of natural law does not fall into inflexibilities, neither it is incapable of taking into account historical circumstances; rather, following a common doctrine of hispanic natural law, mendizábal conceives natural law as a reality in tension with the requirements of daily life. natural law theory in spain and portugal the age of human rights journal, 1 (2013) 7 mendizábal martín’s disciples, miguel sancho izquierdo (1890-1988) and enrique luño peña (1900-1985), followed the philosophical guidelines established by their master in the structure of their treatises on natural law. they both start from the idea of order, to establish the relationships between the moral order and the legal order. the latter is determined by an aim that works as its regulating principle, which is the notion of common good in its most rigorous thomist sense. following the doctrine of the salamanca school, luño peña sustains the need to concrete the primary principles of natural law, that is, to project the consequences deduced from natural law on to the sphere of practical and historical situations. this deductive method is implemented through necessary conclusion and approximate determination. when addressing the relationship between morals and law, he synthesised the salamanca school theses by proposing a union without unity and a distinction without separation between these two normative realms of the human conduct (luño 1968; mendizábal martín 1925; mendizábal villalba 1928; sancho izquierdo 1955). in the first half of the 20th century, a mention needs to be made to the works of university of madrid-based professor pérez bueno, who as a phd scholar in the spanish college at bologna, defended his dissertation titled breve esposizione delle dottrine eticogiuridiche di antonio rosmini (a brief exposition of antonio rosmini´s ethical-legal doctrines) in 1902. he was the main diffuser of rosminian thought in spain, as it may be noted in in his book: doctrinas ético-jurídicas de antonio rosmini (rosmini’s ethicallegal doctrines). he professed a thomism-inspired natural law, but he was also open to other tendencies, as his interest in sociology and the grounding of human rights shows. the end of the civil war surely meant the beginning of a new stage for the evolution of natural law in spain. the variety of theoretical directions prior to the 1936-1939 civil war, reflecting an ideological pluralism, was substituted by the overwhelming supremacy of “catholic natural law”, which reigned during franco’s authoritarian regime. the literature dedicated to natural law in post-war spain is strongly uniform. neoscholasticism, which had already counted on the highest number of followers in the previous period, becomes followed practically by every legal philosopher, as well as by most theoreticians specialising in public and private law from 1939. even scholars with no thomist background, such as luis legaz, enrique gómez arboleya and salvador de lissarrague produced studies in which they showed an interest in natural law and, especially, in the salamanca school. it would clearly be an overstatement to sustain that the political regime established in spain by franco after the civil war pretended to support a “revival” of the spanish natural law classics. it is obvious that the so-called movimiento nacional (national movement) had to address more urgent issues, culture not being among their primary concerns. nevertheless, peculiar circumstances explain a favourable context for an invocation and manipulation of the salamanca school as it had never been known before. several reasons may be adduced in order to explain this situation. the most evident one was the international isolation to which franco’s regime was subjected after the defeat of both nazi and fascist totalitarian regimes. lacking an external political legitimacy before their coetaneous democracies, the dictatorship had no choice but to look for an internal legitimation rooted in the past. this phenomenon conducted to an exacerbated antonio-enrique pérez luño the age of human rights journal, 1 (2013) 8 ideological nationalism, spurred by a distrust and hostility towards anything that could hinder the cultural policies of monolithical unity imposed by the regime. the salamanca school was therefore chosen as an autochthonous thinking model with which the glories of the lost empire could be restored. among the most representative natural lawyers of the franco era we find professor francisco elías de tejada (1917-1978). he proposed a catholic existentialism based upon the idea that god assumes a decisive role and that this belief renders it possible to find acceptable reasons for an objective-values-based human agency. elías de tejada’s disciple, francisco puy, coordinated and authored el derecho natural hispánico (hispanic natural law), whose title may be equivocal, since not all the scholars there referred were spanish and neither could they be considered followers of the salamanca school strictu sensu. it is, albeit, true that some of the most relevant contemporary spanish neo-scholastic natural law trends were there contained. puy summarizes the aim of legal philosophy, conceived in strict neoscholastic terms, in the double function of guiding law and politics according to a transcendental and therefore transcending (god, the absolute goodness) goal, i.e. natural law, an idea that may synthesize the whole conception of this school (puy). eustaquio galán (1910-1999) also advocated for a strictly neo-scholastic natural law. natural law would imply, as galán defends in his ius naturae, the belief in a iustum given by god or nature, and hence, pre-positive and more valuable than positive law; the latter having therefore to conform to the former, which functions as a paradigm or canon (galán). another relevant figure in contemporary spanish neo-scholastic natural law is josé corts grau (1905-1995) who held the position of vice-chancellor in the university of valencia for a long period. his thought stands as a radical denial of one the nuclear dogmas of legal positivism: the separation between law and morals. he defended in his curso de derecho natural (natural law course) that the legal and moral orders may not be either metaphysically or psychologically separated. such a divorce would mean a failure to acknowledge the universal order, or a breakdown in both the divine unity and the human unity, a denial of our own nature. moral subjects and legal subjects are the same and their ends, far from excluding each other, they complement and help each other. that is why many scholars consider morality as an end and law as a mean to fulfil its realization. defending a divorce between the moral and the legal orders entails –according to corts– an attack on legal dignity, since law is rooted in a moral act and not only originates from morality but also returns irremediably to its bosom. josé corts grau undertook the intellectual challenge of introducing new contemporary trends in the heart of neoscholastic natural law. with such an aim, he devoted to the study of the contributions made by legal institutionalism or existentialism, paying especial attention to martin heidegger (corts 1970). natural law pertaining to the classical tradition, either in its neo-scholastic version or in some other conceptions linked to christian philosophy, still holds importance for a considerable group of lecturers and scholars in contemporary spain. the direct natural law theory in spain and portugal the age of human rights journal, 1 (2013) 9 references to neo-scholastic natural law made in some john xxiii encyclicals, particularly mater et magistra and pacem in terris, as well as the social and political implications of some vatican ii constitutions, which bear an unquestionable humanist and democratic character, prepared the path for the rehabilitation of christian natural law making it compatible and conversant with contemporary culture. later pontifical and pastoral activities have obtained an ambivalent signification: some actions and documents have followed the aforementioned humanist trend, while some other contexts have seen openly involutive positions that reveal an unfortunate misunderstanding of modern values. these two tendencies have influenced the most recent spanish catholic natural law, directed towards positions of aggiornamento, so to say, of natural law in some occasions, while also adopting clearly pre-conciliar approaches in other instances. a wide group of legal philosophy lecturers from different spanish universities have resorted to traditional catholic natural law in order to claim for the necessary moral grounding of positive law, advocating a moral objectivism before ethical relativism and making use of these theses to address diverse contemporary moral and political concerns. issues related to marriage, divorce, abortion, euthanasia, reverse gender discrimination, secularization and laicism have been treated in a dense literature by scholars like jesús ballesteros, francisco carpintero, francisco contreras peláez, francisco josé lorca navarrete, alberto montoro ballesteros, andrés ollero and ernesto vidal, among others. iii.3 innovative natural law trends in the last decades of the last century some theoretical attitudes representing innovative points of view come into scene. they sometimes even represent a critical position before the so far dominating neo-scholastic natural law. it is true that the main exponents of what i have called “aragonese school of natural law”, as well as some other neo-scholastic natural lawyers like josé corts grau, showed an open and receptive attitude towards some 20th century philosophical, legal and sociological trends, such as existentialism, institutionalism, or solidarism, but for the following scholars the innovative and/or critical will was central to their understanding of natural law. it is, albeit, important to notice that these innovative and critical formulations were not proposed against natural law, but designed within natural law itself as an attempt to clarify their meaning and adapt their theses to new contexts and concerns. when trying to understand contemporary spanish legal philosophy, no diligent scholar should overlook the fact that two of our most international legal philosophers, luis legaz lacambra and luis recaséns siches shared two basic particularities: the influence of ortega y gasset’s ratio-vitalism in their formative years and their interest in legal experience showed in some of their latest most influential works. if ruiz-giménez proposed an approximation between institutionalism and ratio-vitalism, legaz and recaséns have the merit of having noticed the similarities between some ratio-vitalist premises and the philosophy of legal experience. antonio-enrique pérez luño the age of human rights journal, 1 (2013) 10 luis legaz lacambra (1906-1980) elaborated in his early years a concept of law that shows the imprint of two opposing influences: kelsenean formalism and ortega’s ratio-vitalism. in his foreword to the second edition of his filosofía del derecho (philosophy of law), published in 1961, legaz asserts his aim of characterising his conception using a clearer notion of natural law than the one usually used, thus conceding natural law a central role in his legal theory. natural law would then be responsible for the concretization of the scope of a “point of view on justice” that constitutes the valorative dimension of law. this dimension had a merely formal character in legaz’s early years. law –legaz would point in his second stage– is always a “point of view on justice” and accordingly natural law must be the best possible point of view on justice –justice in its purest programmatic form (legaz 1961). luis recaséns siches (1903-1977) deems the axiological dimension of law the object of natural law, which he referred to for a portion of his career as “estimativa jurídica” (legal estimative). later on, he preferred to return to the traditional label to avoid the logomachy implied in using two names for the same object. for recaséns, natural law is built upon ideal objective values from which necessarily valid guidelines are derived. these values belong to the human existence and, particularly, to specific situations experienced through life. natural law must not therefore be understood as an expression of facts, since in the realm of being there are good and bad phenomena, fair and unfair, convenient and inconvenient facts, virtues and vices, health and illness. natural law must be understood as a set of normative principles and not descriptions of ontological realities: it does not express a being, but an “ought-to-be” conceived as an identification of what the author calls estimative criteria (recaséns 1961; 1983). one of the most solid and stimulating innovative attempts within contemporary spanish natural law may be found in the works of professor antonio truyol y serra (1913-2003), who elaborated a systematic and historical summary of natural law thinking during the 50s. there, he proposed an interrelation between law and morals, conceived as different normative realms. this conceptual distinction does not entail the sort of separation alleged by legal positivism. the intertwining of both orders reaches its most important expression, according to truyol, in social morality, that is, that part of morality that determines one’s duties as a member of society (truyol 1950). an innovative character may also be appreciated in the thought and works of joaquín ruiz giménez, who held the legal philosophy chair at the complutense university of madrid. his doctoral dissertation, published later, became a pioneering research within spanish legal institutionalism. an effort to renovate natural law may also be noticed in the theses of professor mariano hurtado and professor josé mª rodríguez paniagua. the latter is responsible for a suggestive natural law conception based upon legal axiology. it is widely recognized that professor josé delgado occupies a leading role in the critical review of natural law topics. there are three basic aspects that articulate his innovative attitude. firstly, his prospective reading of the salamanca school; secondly, his natural law theory in spain and portugal the age of human rights journal, 1 (2013) 11 interest in facing one the greatest challenges that contemporary culture poses before classical natural law: the problem of historicity in legal categories; and finally, his aim of overcoming the secular tension between natural law and legal positivism. that is why he interprets some of the most solid legal-philosophical constructions of our time (hart, rawls, dworkin, alexy…) as theoretical attempts aiming at showing the crisis experienced by legal positivism, but without formally taking sides with traditional natural law. an undeniable innovative character prompts the conception of natural law proposed by josé luis lópez aranguren, who accepted natural law as bearing a legal pretension and keeping law open to historical, cultural, political and social realities. much influenced by aranguren’s theses as well as the teachings of ruiz-giménez and peces-barba is the intellectual career of professor eusebio fernández, who opts for a critical and deontological natural law, understood as a compound of exigencies of public morality that must inspire and limit positive law (pérez luño 2007). jesús ballesteros is considered josé corts grau’s main disciple. he wrote a very meticulous phd dissertation that was later edited a book in 1973 under the title la filosofía jurídica de giuseppe capograssi (legal philosophy in giuseppe capograssi). this work highly contributed to raise an interest in spain for the most important representative of the italian legal experience conception, giuseppe capograssi. ballesteros offers a natural law interpretation of legal experience according to which legal knowledge is not understood as a sheer external projection of certain logical methods, because knowledge cannot be separated from human action –law is considered as a product of life experience, life itself being regarded as an ethical experience (ballesteros 1973; 1984). spanish natural law tradition has drawn on a wide number of scholars especially committed to providing an historical approach to natural law. this tradition has weakened lately, but it still produces some relevant contributions. among those who develop their historiographical reflections within legal experience, professor francisco contreras peláez stands out thanks to his valuable contributions analysing kant and savigny from a natural law and legal philosophy perspective (contreras 2005). in a similar fashion, fernando llano alonso is responsible for a relevant work on immanuel kant’s cosmopolitan humanism (llano 2002). carlos lópez bravo undertakes a firm historiographical vocation aimed at studying the sources of natural law, particularly, drawing upon a suggestive critical review of paul of tarsus and isidore of seville. nevertheless, his main contribution to natural law historiography lays in his monograph on philosophy of history and philosophy and natural law in giambatista vico (lópez bravo 2003). reference needs also to be made to my own intellectual experience, which has involved a long-term engagement with these innovations in natural law. having studied the scholars pertaining to the salamanca school through the teachings of my uncle professor enrique luño peña, i never abandoned my interest towards their doctrinal legacy. i have, consequently, had the chance to produce different papers as well as a comprehensive general book in which, celebrating the fifth centenary of the discovery of antonio-enrique pérez luño the age of human rights journal, 1 (2013) 12 the new world, i tried to renovate the spanische naturrechtslehre forschung in a threefold fashion: addressing those thinkers or topics that had been neglected or insufficiently studied; performing a “meta-theoretical sieve” on those doctrinal studies so far developed in order to test their critical liability; proposing prospective analyses to explore the contemporary projections of this theoretical legacy (pérez luño 1994). the teachings and stimuli received from other legal philosophers had a similar importance in my attempts to renovate natural law. my phd dissertation, written in university of bologna under the direction of guido fassò, was defended in 1969. it analysed the tensions between natural law theories and legal positivism in contemporary italy. its spanish version was published two years later, counting with a foreword by professor fassò himself (pérez luño 1971). i then transferred to university of freiburg where i had the chance to receive the teachings of professor eric wolf. in the following years, my contact and scientific relations with different spanish and foreign colleagues allowed me to settle my ideas and innovative intentions regarding natural law. bearing such an aim in mind, i have always found it appropriate to distinguish between an ontological, dogmatic or radical natural law, which defends a metaphysically objectivistic order from which absolute and extemporal values may be deduced; and a deontological, critical or moderate natural law, which does not deny legal character to unfair positive law, but establishes certain criteria in order to assess such a regulation and therefore set grounds for its criticism and substitution by a just system. regarding the first version, i deem it incompatible with important values and exigencies of our contemporary humanist culture, so i consequently endorse a rationalist, deontological and critical natural law. some have argued that it is possible to admit the existence of values prior to positive law with no alignment with natural law whatsoever as long as they are kept in a moral or social, but not legal, realm. i cannot share this position, because it seems quite paradoxical that legal scholars from both past and present times would sustain that the criteria used to identify proper or correct law are not legal. this attitude finds no match within epistemology, where no one argues the logical character of the criteria that enable one to tell truth from falsity; just as no one questions the aesthetical character of the criteria that tell beauty from ugliness and there is no controversy on the moral nature of the postulates that tell good from evil (pérez luño 2006). iv. natural law in private law the spread of natural law during franco’s regime did not limit to the legalphilosophical sphere. it also reached some other relevant areas of the legal life and, especially, the methodological attitudes of scholars specialising in private law. the methodological incidence of natural law expressed itself as an attempt to overcome formalism and therefore ground the interpretation and application of law upon valorative premises that, in that time, would be specified according to neo-scholastic ethical postulates. for spanish private law scholars of that time, the methodological approach to law would usually be carried off according to christian natural law. this fact responded to the belief, exposed by civil law scholar antonio hernández gil (1915-1994), that the natural law theory in spain and portugal the age of human rights journal, 1 (2013) 13 highest and most genuine spanish legal theory could not be but natural law. this tendency was the most popular one among those of our legal scholars that approached the basic concepts and concerns of legal theory and methodology in that historical-cultural context. according to hernández gil, this theoretical option enabled the avoidance of risky openly anti-philosophical tendencies embraced by legal scholars in other countries, allowing this way an overcoming of a pretended antagonism between philosophical and legal methodologies from a natural law perspective (hernández gil 1945). this spirit also inspired private law scholar felipe-clemente de diego (18861945), who considered that method meant order as long as it served diverse human ends, came from human nature itself and found a fundamental explanation in the science of the ultimate causes and reasons, that is, in philosophy. that is why this task cannot be merely mechanical, as legal positivism pretends, but it requires a valorative position that stays openly in tension with the needs of legal praxis, an attitude that only a natural law methodology may propitiate. for federico de castro (1903-1983), positive law always requires a justification. this comes expressed in a chart of immutable values that legitimize legal instances that respect them while reducing to sheer un-legal arbitrariness those pieces of legal production that contradicts them. natural law offers criteria to judge positive law, but since human weakness and the indifferent character of certain acts render it impossible to apply in the world or the state a regulation totally coinciding with natural law, their relationship needs to be determined. following thomas aquinas, de castro points that human law may be derived from natural law, either per modum conclusionis, establishing consequences and particular applications of a general principle of natural law, or per modum determinationis, concretising what has to be done within the scope offered by the natural law. positive law thus acts based upon the generality or indeterminacy found in natural law. civil law professor and president of the supreme court josé castán tobeñas (1889-1969), considered it urgent in our post-civil war scenario to follow both spanish and universal, classical and modern natural law. he pointed out in his works that the requirements of natural law came from the practical needs of interpreting and elaborating our positive law, always created with an ethical perspective, as well as from the theoretical advantages that classical natural law provides as a fundamentally homogenous doctrine within the history of western thought, accessible by all and scientifically and popularly grounded at the same time. this characterisation contrasts with the compound of modern philosophical theories that continuously are born and die without effectively penetrating in the soul of society or acquiring a sound comprehension by legal scholars themselves (legaz 1975; pérez luño 2007). the influence of neo-scholastic natural law on the spanish legal scene during franco’s regime was not bounded to the scholarly sphere, but it also had an impact on caselaw. most of the solemn invocations to natural law produced by the courts were but sheer declarations of principles, though. if we take a superficial look at the decisions taken by our antonio-enrique pérez luño the age of human rights journal, 1 (2013) 14 supreme court during franco’s regime, in cases related to values and principles of justice and morality, we may think that judges did really try hard to stay away from the political bindings of that time. there is, actually, an argumentation trend found in case-law that insists on the supra-historical and meta-temporary character of their moral assessments (pérez luño 1990; pérez ruiz 1987). v. natural law and human rights legal thinking cannot exist or be intelligible if it is regarded aside from the political, cultural and social circumstances that delimit its spatial-temporal context. theories and works belonging to one determinate historical stage of natural law cannot be comprehended regardless of a determinate system of collective experiences. one cannot understand the peculiarities of the topics and perspectives that characterise spanish natural law in the last years without an account of the new circumstances that contextualise its development. the political changes taken place in our country by the end of the 70s meant a substitution of an authoritarian regime by a democratic state fully respectful of the rule of law. this fact has directly and decisively influenced the research and activities undertaken by current legal philosophers. in my opinion the most important event having a decisive impact on spanish natural law has been the enactment of the 1978 constitution. the civic and intellectual mobilisation that the spanish constitution brought about also implied a commitment, a challenge and a renovated scientific enterprise. the constitution has represented for many legal philosophers and theoreticians of my generation a true milestone that has shaken both our condition of citizens and our intellectual career. the enactment of the constitution meant the beginning of a still on-going research venture for the spanish legal culture. the leading role played by fundamental rights in the 1978 constitution has made them a crucial aspect of our legal culture. in fact, fundamental rights are assigned the task of guiding the performance of public powers and articulating the implementation of the active subjective status of citizens. according to certain viewpoints assumed by a version of critical natural law version that lays close to the ideas of the frankfurt school, the rights and liberties granted in our current constitution have been considered as institutionalised vindictive channels for the great aspirations and needs of the spanish society and, in fact, it cannot be denied that that this has actually been the case. from other perspectives, linked to the liberal natural law tradition, the meaning of these rights and liberties have been specified as an explicitation of the superior values that ground our rechtsstaat (art. 1.1 spanish constitution). there is no doubt that fundamental rights contain an undeniable axiological character and that they evoke this condition with their very name as it may clearly be noticed in the spanish constitution wording, where “los derechos fundamentales” (…) “son fundamento del orden político y la paz social” (“fundamental rights” (….) “are the foundation of political order and social peace”) (art. 10.1 spanish constitution). other theses, inspired by versions of natural law versions that show a more sensitive attitude to history, have insisted on the idea that liberties have a natural law theory in spain and portugal the age of human rights journal, 1 (2013) 15 “proteic” character and they necessarily adequate to the cultural, social and economic mutations that have prompted recent spanish politics. some legal philosophers, like javier antuátegui, rafael de asís, gregorio pecesbarba, luis prieto sanchís, gregorio robles, among others, have attempted a positivist grounding of what the revolutionary french agreed to call “droits de l’homme”. yet, a grounding based upon natural law allows a better explanation of the legal vocation of these rights. this may be shown by drawing on romanic languages, where the same root explains the words law (derecho, diritto, direito, droit) and rights (derechos, diritti, direitos, droits), alluding to a both normative (legal) and moral (right) reality. thus, it is much harder and less convincing to explain the scope of the term “derechos” (rights) in the expression “derechos humanos” (human rights) from positivist premises than from a natural law background. this is due to the fact that positivism is a monist theory and therefore it only attributes legal character to positive law. from this perspective, talking about any natural, human, moral or pre-normative right, as something different from positive law constitutes a contradictio in terminis. natural law theory, as a dualist legal theory, distinguishes two different normative systems: a natural law conformed by a compound of values prior to positive law that must ground, guide and critically limit every legal regulation; and positive law, established or imposed by the binding force of those holding the power in society. they are “rights” with a diverse deontic status but with no independence, because every natural right tends to be positivised and every positive right, as long as it pretends to be fair, must follow natural law. natural law has had the persistent historical function of establishing limits to power. pervading the civic conscience with the idea that there are values inherent to the human being that no political authority may breach, modern natural lawyers offered an explanation of the very rationale of rights that cannot be discarded without weakening the grounding of human rights at the same time. the historical attempts to offer a positivist alternative to the natural law conception of human rights inevitably lead to compromising their political efficacy. suffice it to think about the relevance acquired in the 19th century by the category of subjective public rights, coined by the german public law school as an effort of substituting the idea of natural rights as liberties enjoyed by citizens before their government through the introduction of some subjective status that depend upon the government’s self-limitation. we should recall, following antonio truyol y serra, that this fashion of understanding rights was connected to the idea of denouncing the legal character of an international law exclusively built upon the “will of the states” and conceived more as a set of moral or courtesy rules followed by nations (comitas gentium) than as true law (truyol 1968; ballesteros 1992; de castro cid 1982; fernández 1984; pérez luño 2005; vidal 2002). the natural law grounding of human rights has also manifested itself regarding current important concerns such as the legal impact of new technologies, quality of life and environmental issues or the risks that biotechnology poses to citizen’s rights. antonio-enrique pérez luño the age of human rights journal, 1 (2013) 16 the study of the legal projections of new technologies (nt) has raised a growing interest among our legal philosophers and theoreticians. this topic that, paraphrasing ortega, could be labelled as the “theme of our time” could not help but to draw the attention of natural lawyers just as it has involved the main legal research areas in developed countries. in the last decades, the conceptual and textual universe of legal scholars has seen a profound and radical change due to the transformation of the cultural, political and economic premises experienced in contemporary technological societies. the phenomenon called "liberties’ pollution" in english-speaking countries deserves special attention. it refers to the new forms of breach that rights and liberties might suffer through the abusive use of informatics and, particularly, internet (garriga 1999; gonzález-tablas; pérez luño 1976; 2004). the present of human rights demands an adequate sensitivity towards the “ecological paradigm” from jurists and legal philosophers and theoreticians inserted in the natural law tradition. this requires a critical reflexive attitude that entails an assumption of the responsibilities derived from the new challenges and issues that environmental threats pose in the economic, social, political and legal spheres. striving to improve quality of life and to guarantee a balanced and sustainable development along with biodiversity stands as an unavoidable task for both legal practitioners and theoreticians (ballesteros 1995; bellver 1994). natural law has also shown a topical and relevant interest in the consequences that biomedicine, bioethics and biotechnology have on human rights. it is a research area closely related to the socio-legal repercussions of new technologies, quality of life standing as peculiar element that counts with its own significance. hence the interdisciplinarity of this field. human dignity, identity and privacy are values and rights that, from a natural law perspective, must be protected before certain biotechnological investigations. the notion of “human nature”, a core aspect within the natural law tradition, gains new topicality and urgency concerning present bioethical issues (cf. ballesteros 2007; marcos del cano 2004). vi. natural law theories in 20th-century portugal the beginning of the 20th century meant a continuation and strengthening of the positivist trend within the portuguese legal culture that had already been manifested in the last part of the 19th century, as we had the chance to mention earlier. the diffusion of a positivist and scientificist mentality contributed to lead natural law to a crisis and the study of this discipline became relegated to seminaries and theology faculties. among the most relevant circumstances that explain this situation we may refer the following ones: 1) the creation of the law faculty of lisbon in 1913. this academic centre appeared from its origins as a lay and republican alternative before the conservative and traditional old coimbra faculty of law. the new lisbon faculty had no place to keep the natural law theory in spain and portugal the age of human rights journal, 1 (2013) 17 natural law tradition, which was considered a reminiscence of the past incompatible with the open and progressive mentality that was expected to guide the education of jurists. the innovative character of this new faculty soon also helped to stimulate the renovation of the old coimbra faculty of law, whose lecturers were unwilling to stay away from the requirements of modernisation. 2) the diffusion of a legal methodology based upon the commentary and elaboration of legal rules in the lisbon faculty of law and, slightly later, in coimbra. the main feature of this methodology was the assumption of the exegetical french method. some other versions of legal positivism, such as german legal dogmatics and general legal theory or british analytical jurisprudence, had a much lower impact. some scholars showed an interest in utilitarianism, as well as in some evolutionist versions of positivism. all this determined a progressive abandonment of methods linked to neo-scholastic or idealist-krausist natural law theories that had reached a wide popularity by the beginning of the 19th century. 3) the adherence of some lecturers, researchers and students from the coimbra and lisbon law faculties to progressive, reformist or even revolutionary political ideologies. in the first years of the 20th century some lecturers pertaining to these two portuguese law faculties were inspired by different forms of the so-called “chair socialism”, as well as marxism and anarchism in their approaches to the concept, meaning and social function of law (cabral de moncada 1960; lacasta 1988; merêa 1955). a clear theoretical example of the attitudes of legal scholars opposing natural law is found in the first works of public law professor domingos fézàs vital (1888-1953). much influenced by the legal sociologism of french legal theoretician leon duguit, fézàs vital rejected the notion of subjective right. he considered this concept to be a continuation of the sort of metaphysical ideas defended within natural law, since it assumes the existence of legal faculties belonging to people even before the recognition by positive rules emanating from the state. his later positions are representative of the turning point that determines the crisis of positivism and the beginning of what has been called “the eternal return of natural law” (rommen 1947). certainly, in the mid-1920s professor vital abandons his positivism and legal sociologism to join legal institutionalism under the influence of maurice hauriou and georges renard, whose doctrines he helped to spread in portugal. from that point on, he attempted to elaborate a neo-thomist institutional theory that would set the grounding of legal institutions in christian natural law. this attitude would make him one of the ideologues of the new state, personified by antonio oliveira salazar’s political authoritarianism and he would even become one of the inspirers of the 1933 portuguese constitution, key legal text within that legal-political system (fézàs vital 1929). the restored portuguese interest in natural law had professor and dean of the coimbra law faculty luis cabral de moncada (1888-1974) as its most representative antonio-enrique pérez luño the age of human rights journal, 1 (2013) 18 figure. he may be considered as the most prestigious 20th century legal philosopher in portugal. from the end of the 1920s he committed to the criticism of positivism and its consequences on legal education. accordingly, he promoted the inclusion of philosophy of law as a compulsory subject in the law faculties’ syllabus. this intellectual attitude, always favouring natural law, evolved from neo-scholastic premises towards approaches closer to phenomenology, neo-kantianism and existentialism. being deeply knowledgeable in german legal doctrine, he was influenced by radbruch’s and stammler’s theses and he critically studied the thought of kelsen. his reputation became internationally acknowledged thanks to a honoris causa doctorate conferred by the university of heidelberg (jayme 1993). his natural law conception, open to the influence of existentialism, finds concretion in his characterisation of the main mid-20th-century european beliefs: 1) the notion that social and political life must be built from inside out, as a projection of a deeper dimension than individual life itself and as a type of existence centred around the religious idea of salvation; 2) the conviction that state and law are not ends in themselves or sheer instruments to achieve economic goals, but “tasks” of the human vocation of culture and, therefore, means to spiritual ends; 3) the belief that in order to fulfil those ends, it is necessary to appeal to objective, superior and non-historical values so that a superior axiological cosmos, alien to whims and fantasies, is reached. according to cabral de moncada, the problem of natural law is no longer metaphysical, but an ontological and axiological issue. this is so because, within the phenomenology of conscience and historicity, the autonomous sphere of the spiritual being has revealed itself as a new logos, which is dependent, intertwined and conditioned by other vital circumstances, but still counting on its own laws, sense and aims. it is current natural lawyers’ task to figure out the structure of those values that we call spiritual and identify the laws that are to be followed accordingly. justice and the common good within human societies would deserve the highest position in the scheme. this natural law only requires a belief in the reality of the spirit, but does not need to depend upon any metaphysical or religious conception, although the in limine legitimacy of these conceptions is not altogether excluded. on the contrary, only these last versions comply fully with the aims of natural law, which does not only present a theoretical mental problem, but also a practical problem directed towards action. intelligence is not required on its own, but is also demands the concurrence of human will. man will never be a man if he is not able to find, in the depth of his convictions and beliefs, a perspective of the absolute, as a last resort where he may assert the final reason and sense of all his deeds and needs as an spiritual being in this world (cabral de moncada 1945; 1966). the teachings and works of cabral de moncada had a significant influence on the thought of the most remarkable portuguese legal philosophers from the second half of the 20th century: castanheira neves, de brito and machado. joâo baptista machado (19171991) lectured international law and legal philosophy in the new oporto law faculty. in his first academic years, machado paid special attention to hans kelsen, some of whose works he had the chance to translate into portuguese, thus contributing to the diffusion of his thought within the portuguese legal culture. in his mature years he intended to natural law theory in spain and portugal the age of human rights journal, 1 (2013) 19 overcome two basic premises of kelsen’s theory: normativist positivism within legal theory and axiological relativism within legal legitimacy. with such an aim, he elaborated a natural law theory that out forward the actualisation and revision of its traditional neoscholastic version. existentialism, in which cabral de moncada’s influence may be noticed, hermeneutics and justice, in which he shows his knowledge of contemporary thinkers like habermas, luhmann and rawls, served as theoretical sources for his ambitious project to renovate natural law (ferreira da cunha 2006). antonio castanheira neves, born in 1929, lectured legal philosophy in the university of coimbra. he is also quite critical regarding legal positivism and natural law. his criticism of legal positivism articulates upon his opposition towards a legal reasoning based upon subsumptions and syllogisms. he also rejects the ideal and abstract character that pervades many natural law conceptions. before these notions, he opposes a real, concrete and historical law that finds concretion in empirical legal cases. the solution to such cases constitutes the content of law in an on-going process. that is why courts’ sentences are but the determination of what must be considered as legally correct within every legal system (castanheira neves 1993). some analysts of the works of castanheira neves have detected some analogies with hermeneutical theories or even with dworkin’s integration theory. in one of his last works, castanheira neves nuances the possible coincidence with those theses and makes clear that his position is quite different, since it implies a higher emphasis on the experiential dimension of law and entails, all in all, a necessary connection between theoretical reflection and real praxis within the legal sphere (castanheira neves 2003). the 1974 carnation revolution, whose main legal and political result was the 1976 constitution, determined the substitution of an authoritarian regime by a democratic state in portugal. this important political transformation had its cultural consequences which were also manifested in the attitudes before natural law. so, within legal historiography, professor antonio hespanha, from the university of lisbon, substituted traditional natural law, that had served as theoretical grounding for the conception of legal history of paulo merêa (1889-1976), by the philosophical premises of postmodern culture (hespanha). likewise, coimbra professor josé gomes canotilho replaced conservative natural law, predominant during the political rule of antonio oliveira salazar and marcelo caetano, with critical legal conceptions clearly aligned with a progressive approach (gomes canotilho). professor josé manuel pureza, also pertaining to the university of coimbra, has shown a deliberate intellectual purpose to revise cosmopolitan natural law as a grounding of international law with an exigency of opening up to pluralism and multiculturalism. that way, pureza tries to avoid an ideal and abstract universalism that might be mixed up with the standardisation of international legal principles and values (pureza). thanks to his research in latin america, sociologist and legal theoretician boaventura de sousa santos (coimbra university) deserves special attention. de sousa santos opposes to the modernity paradigm –represented in the legal realm by the natural law cultivated in the enlightenment era– a postmodern paradigm understood as a new critical conception of experience and a reformulation of legal and political common sense comprehended in emancipatory terms. against the rationalist natural law rationality, antonio-enrique pérez luño the age of human rights journal, 1 (2013) 20 which he calls “indolent reason”, he sets a utopic rationality committed to liberation and emancipation. the conversion of law into a myth promoted by natural law in the enlightenment era requires a demystification, since the legal system has been proved unable to adequately solve some of the most important social issues. a scientific response to this progressive legal discredit demands a series of institutional mechanisms, procedures and reforms that may render law more accessible and more useful for the highest possible number of citizens (de sousa santos 1995; 1998; 2003). vii. conclusion : premises for an assessment as a summarial assessment, it may be pointed that natural law theory stays currently at a crossroads in both spain and portugal. new influences, profound changes and worrying uncertainties seem to characterise this scene. in our legal culture, the last years have passed under a syndrome of exhaustion and crisis of the paradigms that have traditionally articulated natural law and legal positivism. just like the famous pirandello’s characters, many of the youngest spanish and portuguese legal philosophers and theoreticians are “in search of an author”. during the last years, the wish to overcome the doctrinal background inherited from the recent past has served as an incentive for the urgent adoption of the imported theoretical models that are deemed more appropriate according to the circumstances. the new versions of legal positivism, under the ambiguous label of “post-positivism”, different tendencies linked to analytical philosophy, neo-constitutionalism, multiculturalist topics, feminism, ecologism, criticism of global society… are some of the heterogeneous study programmes and/or theories which are object of scholarly attention. this renovating attitude is fully legitimate in terms of intellectual concern and anti-conformism and only the future will enable an adequate assessment of their results, since it is not possible to draw definitive conclusions from a panorama that still stays in fieri, to use a legal aphorism. as a synthetic reflection, i understand that the biggest danger currently underlying the most innovative movements within iberian legal theory and philosophy would be their eagerness to make a clean sweep of the past natural law era, thus indiscriminatingly condemning tendencies that due to their secular history and plurality of meanings present a compound of implications and nuances that are hardly integrated in a simplifying criticism. natural law has enabled an engaged attitude thanks to the penetration of moral values into law throughout different times and legal cultures. this aspect of the historical function of natural law urgently needs to be clarified and taken into account. otherwise, spain and portugal would paradoxically experience the rise and strengthening of attitudes opposed to natural law that at the same time appeal to rationally-grounded objective (even though in a historical-sociological sense) values and defend the need to recognise basic human rights and values as legitimising ends or guidelines for every legal system, thus claiming a connection between law and morals. these positions, therefore, implicitly admit wellknown natural law premises. the opening up to human values and rights, as well as to a historical conscience, typical of the renovating natural law theses; the will of some critical natural law theory in spain and portugal the age of human rights journal, 1 (2013) 21 legal theories to rescue to most vivid aspects of humanist natural law defending the notion of human dignity (ernst bloch 1961); and the tendencies that try to rehabilitate practical reason as well as those that attempt to address the problems of our contemporary globalised and technological society from a renovated theory of justice, they all show the persistence of the big questions linked to the historical development of natural law doctrines. because, in any case, as karl jaspers indicated in his 1949 vom ursprung und ziel der geschichte, the general image of history and the conscience of the present situation are both mutually interdependent: the more profound the conscience of the past, the more authentic the participation in the present moment. bibliography ansuátegui roig, f.j. 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(2002) los derechos de solidaridad en el ordenamiento jurídico español. valencia: tirant lo blanch. political belonging and fantasies of inclusion. romanians in london and paris claudia paraschivescu1 abstract: this article analyses from a bottom-up perspective romanians’ complex emotions surrounding their reasoning for applying for a french or british passport. it illustrates the extent to which interviewees’ fantasies of inclusion in the host countries are thought to be dependent on the political membership of the country of residence. it is argued that british/french naturalisation is perceived as a status enhancer, allowing the interviewees to overcome the marginalisation associated with their romanian nationality. keywords: inclusion, exclusion, political belonging, romanian migrants. summary: i. introduction; ii. theoretical framework. the interplay between sociocultural integration and aspirations of naturalisation; iii. researching romanians in london and paris; iv. romanian emigration to london and paris; v. achieving sociocultural integration through political belonging; v.1. legal discrimination; v.2. economic discrimination; v.3. socio-political discrimination; vi. conclusions. i. introduction although people are considered to be more mobile than ever, with the total number of international migrants reaching 244 million in 2015 (un 2016), they are not always free to travel or to move to the countries of their choosing. the right to enter the territory of a different country is dependent on a conditional authorisation granted by the receiving country. a visa is “a pre-emptive check on the bona fides of a pending visitor to a country, allowing the government of that country to check the background, means, itinerary and reasons for visiting” (whyte 2008:135). visa-free access is granted mostly to wealthy, democratic and western countries, while poor countries are less likely to enjoy the privilege of free travel. as such, the nationality on the passport brings a lower or greater freedom of movement. countries are thus capable of regulating the flow of people through a system of visas and passports (wang 2004, mcmahon 2012). in the european union (eu), romanian nationals theoretically would have no longer been required to hold visas for working in the eu free movement space starting from 2007. nevertheless, transitional measures were put in place in 15 member 1 school of sociology, university of leeds (claudia.paraschivescu@gmail.com). this article is based on a thesis chapter. the phd was funded by the economic and social research council (esrc), grant ref. es/j500215/1. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 120 political belonging and fantasies of inclusion. romanians in london and paris countries (amongst which were france and britain), aimed at balancing the flows of eastern europeans seeking work in western europe. referring to the case of romanians in italy, mcmahon (2012:211) states that “union citizenship has not resulted in equality, as labour market access remains limited and the political rights of italians and romanians are quite distinct”. this article is not interested in the pathways to membership from a political perspective (nationality law). rather, its objective is to illustrate the extent to which romanians’ fantasies of socio-cultural integration in the host countries are thought to be dependent on the political membership of the country of residence. as such, it analyses from a bottom-up perspective romanians’ complex emotions surrounding their reasoning for applying for a french or british passport. this provides useful insights into their everyday lives in the host countries and their attachment to the country of residence. it is argued that the romanian participants, which this study was based on, attribute characteristics associated with offsetting marginalisation to a foreign passport, with the aim of feeling part of the ‘social fabric’ of the host country. as such, this paper first explores the theoretical framework underpinning this research, namely the concepts of socio-cultural integration, inclusion and exclusion, social relations and citizenship. it then outlines the methodological challenges encountered in the field. it then the third section investigates the characteristics of romanian migration to western europe. lastly, the role of a british/french passport in overcoming various forms of marginalisation is explored. ii. theoretical framework. the interplay between socio-cultural integration and aspirations of naturalisation. the concept of integration has been heavily debated in literature (see for example wieviorka 2014). favell (2008, 2013) questions the notion of integration, which, he argues, relies on “a conception of a bounded national society that can be defined by its more or less inclusive rules of membership, but which also for functional reasons, imposes social closure to non-members and demands a certain socialisation – bluntly put, a nationalisation – of the (new) insider population” (favell 2013:3). he asks whether it is still a relevant concept to use in present times, on the basis of the diversity of populations, but also the internationally mobile and high-skilled intra-eu citizens, who are not seen or do not perceive themselves as immigrants, but as expatriates or free movers (favell 2008). nevertheless, he agrees that the differentiated citizenship amongst the economically successful eu free movers distinguishes between western europeans, and “poles, romanians, even turks [who] may one day feel and be treated as simple mobile european citizens, not immigrants. for the time being, only the westerners can hope to enjoy this degree of invisibility and spatial flexibility” (favell 2008:103). in other words, it may be that for romanians, who, at the time of the research were not yet ‘free movers’ in all respects, the concept of integration may still be relevant, due to their status as ‘othered’ immigrants. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 121 claudia paraschivescu scholars (see engbersen 2003 for an overview) generally distinguish between two forms of integration; structural integration and socio-cultural integration. while the former refers to immigrants’ participation in social institutions, the latter is described as the socio-cultural contacts immigrants maintain with the host society. this paper is interested in romanians’ motivations for naturalisation in the host country. it is argued that the reasoning behind the application for host country citizenships is represented by the desire to have access to socio-political, legal and economic equal rights, an equality which they perceive as enabling them to be positioned as socio-culturally integrated into the host country. socio-cultural integration is defined as “the social and cultural distance between ethnic minorities and the indigenous majority” (gijsberts and dagevos 2007:806). the elements of socio-cultural integration significant for this study take place in migrants’ daily lives in the host country, and refer to their daily experiences in the city they live in, elements which bring to the participants’ attention their marginalisation. often, immigrants leave the country of origin because of expectations of better opportunities in the host country. the first years in the destination country are of high importance for migrants’ integration process. individuals reliant on better life chances in the host country might be desirous to settle. in the process, they are likely to develop their language skills and interact with the members of the receiving context, obtain a job and might develop a sense of attachment to the new country. many immigrants arrive in the new country with high levels of optimism and expectations, the so called “immigrant optimism” (kao and tienda 1995). however, while immigrants may feel accepted and included in the mainstream, many of them will experience exclusion which may shape their reality, taking the form of social and affective distance from the mainstream. molles (2013) distinguishes between four dynamics which are to be found in the construction of inclusion and exclusion in western europe: an economic-rational; a social network; a political-institutional logic and identity politics reasoning. since the sphere of work is considered the crucial instrument for integration, the economic approach suggests that immigrants are accepted into the destination country when they provide cheap labour in areas where native workers are not likely to show their interest (piore 1979). similarly, logan, et al. (2002) state that “studies of european immigrant groups have long emphasised the importance of occupational niches in which newcomers could find ready, if poorly paid, employment in businesses run by their compatriots”. however, they are often excluded when they compete with the members of the mainstream for welfare benefits and jobs which are desirable to the nationals. according to the social network approach, inclusion of immigrants into the destination country happens when migrants are part of networks between the country of origin and the host country, as well as institutions in the receiving state which facilitate the migration and integration of the new arrivals (faist 2000). however, when immigrants rely on employment within their own ethnic groups, work can become exclusionary and can engender social isolation rather than social integration (engbersen 2003:6), and can reduce incentives for investments in host country language acquisition. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 122 political belonging and fantasies of inclusion. romanians in london and paris the political-institutional approach refers to the nature of the political context of the host country. while immigrants are likely to feel excluded from contexts where antiimmigration parties prevail, they are usually included in states which display left wing immigration policies. both france and britain have popular extreme right wing parties, yet the electoral agendas are somewhat different. the united kingdom independence party’s manifesto has been centred on britain leaving the eu in order to be able to manage its influx of immigrants (most recently romanians and bulgarians). the french front national has been promoting a similar desire for france to leave the eu in order to boost france’s power internationally. although immigration is at the core of the protectionist and populist political agenda of front national, reducing african immigration rather than european to france has been the priority. the fourth approach is concerned with symbolical elements regarding inclusion and exclusion, such as identity politics and the marginalisation of immigrants on the basis of cultural distance (see molles 2013:4). this often occurs at a local level, during social interactions between the nationals and the non-nationals, when non-citizens experience inclusion and/or exclusion. nevertheless, the literature is mainly concerned with the incorporation of immigrants by the state itself, as well as supranational entities such as the eu which produces the other (see castles and miller 2009, geddes 1998). the nature of social relations reflects the tensions which may exist between and inside groups and which translate into immigrants’ inclusion and exclusion and thus influence their allegiances towards the receiving society. in line with other scholars (see wilson 2011, neal and vincent 2013), this article emphasises the need to acknowledge the everyday as the locus where differences are negotiated. as hemming (2011:65) suggests, the idea of ‘encounter’ refers to “how citizens can learn to live with cultural difference by showing civility to the others”. however, valentine (2008:329) warns that although individuals may behave with civility in public areas, they may still express prejudice in the space of their own homes, as “urban etiquette does not equate with an ethics of care and mutual respect for difference”. similarly, more recently, in her fieldwork in hackney, wessendorf (2013:418, 2014) found that although people mix in public and associational spaces, this is not accompanied by social mixing in the private realm, where only people with similar life styles, cultural values, backgrounds and attitudes mingle. she shows that despite the potential of passing encounters to enhance intercultural understanding, their absence leads to negative attitudes towards those who exclude themselves from participation in local life. this is also shared by fonseca et al. (2013), who reported that in lisbon, there is a high level of public interaction, but an absence of home visits among the residents. wilson (2011:646) tells that intercultural encounters can “solidify prejudices and antagonisms as much as it can weaken them”, but she notes that encounters are still significant as they “might produce something closer to recognition than it can to consensus and understanding”. as such, differences are tolerated rather than cherished. in the context of east-west migration, the connection between encounters and hostile attitudes towards immigrants is starting to gain growing attention (see fox 2013, parutis 2011). the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 123 claudia paraschivescu this may indicate that a british/french passport might assist in interviewees’ journey towards socio-cultural integration in the mainstream. the rules migrants need to comply with in order to become citizens of the country they live, or even to work, are referred to as ‘politics of belonging’ by yuval-davis (2011). they are situated temporally in the sense that political developments affect the politics of belonging; spatially reflecting the fact that their effects are heterogeneous; and finally intersectionally, as they affect different people in different ways (yuval-davis 2006). through an exercise of power, the politics of belonging classify people into those who are excluded from full membership and those who are allowed to become full members of the society according to their gender/ethnicity/class. the politics of belonging thus include and exclude citizens in order to make sure that only those ‘eligible’ can enter someone else’s home. citizenship is a set of practices (cultural, symbolical and economic) and both rights and duties, such as civil, political and social, which define peoples’ membership in a polity (isin and wood 1999:4). joppke distinguishes between three aspects of citizenship: citizenship as status, which refers to membership in a state, citizenship as rights, which is about the capacities and immunities linked to such status, and citizenship as identity, “which refers to the behavioural aspects of individuals acting and conceiving of themselves as members of a collectivity, classically the nation, or the normative conceptions of such behaviour imputed by the state” (joppke 2007: 38). he goes on to explain that citizenship as identity addresses the unity and integration of society (ibid.). it refers to the official views of the state as well as the views held by ordinary people (ibid.:44). immigration challenges the concept of citizenship and of national identity, as the newcomers are not perceived as belonging to the host nation-state due to their unwillingness to integrate into the larger society (clarke et al. 1998:46) and the challenge they pose to national identity, which is perceived as a set of characteristics attributed to individuals who share the same cultural and ethnic characteristics. consequently, they are exposed to unequal treatment by the mainstream and are subject to exclusion. citizenship becomes a form of social closure, which restricts the participants of certain non-citizens (mcmahon 2012:2012). it is therefore understandable why immigrants may want to become naturalised: mainly to avoid the constraints associated with their own citizenship (see jansen 2009) from a visa-free travel perspective, or to enjoy the bundle of rights associated with membership in the host country. literature examining dual citizenship is fairly recent, as the possession of two passports has only been recognised in the past 20 years (skulteouaiss 2013). indeed, joppke argued (2007:44) that “[w]hat ordinary people associate with citizenship is one of the biggest lacunae in the literature”. this is also shared by szewczyk (2014), who admits that there is still no information regarding the reasons why people acquire citizenship. in academic research, migrants’ perspectives of multiple citizenship are generally omitted (with a few exceptions, such as leitner and ehrkamp 2006, harpaz 2013 and byrne 2014). the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 124 http://www.thedigitalsilkroute.com/images/references/502.pdf%20and%20byrne%202014 political belonging and fantasies of inclusion. romanians in london and paris indeed, the meaning of citizenship and of passports, are analysed in current literature using a top-down approach, as a classifying device within the hierarchy of mobility, or as a theoretical concept in international mobility (torpey 2001, macklin 2007). in her study on israelis with a european passport, harpaz (2013) argues that the second nationality is better defined by the notion of “passport citizenship” which points to its understanding as private property. he explains that while the israeli nationality retains individuals’ identity, the second citizenship is seen as “just a passport” which can improve the family’s livelihoods by securing economic and political privileges due to visa-free mobility. also, the european passport is seen as prestigious through its power to exclude the israelis who do not own one. therefore, “the european passport serves as a portable status symbol that allows them to reproduce israeli ethno-class hierarchy abroad and experience it as a justified part of a global european-dominated hierarchy” (harpaz 2013:192). nevertheless, harpaz does not explain how different european passports are perceived by their israelis possessors. rather, she considers greek, romanian, bulgarian, czech, austrian, hungarian, polish and german passports as having an identical value in the eyes of their new possessors. amongst romanians in london and paris there is a variety of reasons for applying for a passport. whilst some participants may take up british or french nationality in a desire to feel more integrated into the host context, others see it from a more practical angle, such as a visa-waver passport. iii. researching romanians in london and paris. the study was based on empirical research undertaken in order to explore, understand and interpret romanians’ daily experiences in london and paris. it is explanatory, built on participants’ feelings, perceptions and lived experiences. the comparative nature of the study resides in its focus on romanians' everyday lives in two socio-cultural contexts. this sheds light on the relations and differences between these locations and on the variations in migrants’ lived experiences revealing belonging. this research draws on the multiple lived experiences of 64 romanian participants as well as the insights of 12 informants, who give accounts about their interpretations of the social reality they inhabit during qualitative semi-structured interviews in london and paris as well as follow up facebook chats. it addresses the relational and context-specific nature of identities, as well as their construction and negotiation socially (gunaratnam 2003:21). it examines how social categories are constructed cross-culturally and how they affect romanians’ relationship with their social worlds. their identities are produced and reproduced through everyday processes which alter the relationship the individuals have with the society. the data collection and analysis lend themselves to phenomenological inquiry, which acknowledges that social reality is the product of individuals’ understandings and interpretation of it. the phenomenological approach suggests that phenomena can only be understood in their deepest form and consequently recounted and interpreted by the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 125 claudia paraschivescu having access to the subjective perspectives of those who have lived them (merleauponty 1945). this perspective aims to understand the worlds romanian participants live in and their lived experiences by focusing on the meanings they ascribe to these experiences. their everyday experiences as immigrants are understood as the phenomenon this study seeks to understand and interpret. the london-based part of the fieldwork took place between september and november 2013, a period of tabloid media and political frenzy regarding the potential arrival on british soil of large numbers of romanians (and bulgarians). at the time of the fieldwork, romanian workers in britain needed right to work documents. in london, 25 participants (12 men and 13 women) were interviewed, holding various positions ranging from cleaners and builders to engineers. additionally, interviews were conducted with six key informants (an adventist pastor, an orthodox priest and four key informants actively involved in the community). both in london and paris multiple individual and group informal conversations were had during social, educational and political events attended. the fieldwork in paris occurred from february to may 2015, after the removal of restrictions to the labour market for romanian nationals. the temporal and spatial dimensions allowed the ability to ‘follow’ migrants’ lives before, during and after the changes in immigration policy, which sheds light on differences and similarities in their lived experiences. the lifting of restrictions, together with less aggressive media coverage in france regarding romanians’ activities and a more successful snowballing effect may explain the smooth nature of participant recruitment. the interviews aimed to access romanians’ migratory experiences, the meanings they attribute to these (see lindseth and norberg 2004) and how they affect their daily realities. elements of the social can be explored by listening to, interpreting and gathering knowledge from the participants (mason 2002). the interview encounter offered the possibility to analyse participants’ social cues in order to validate the accuracy of the discourse. nevertheless, this did not come without its challenges, due to my positionality as an insider researcher. my insider identity, that of holding the same membership as the population studied, negatively affected the way i was perceived when i entered the field. my romanian nationality, as a researcher was often associated with romanian institutions and thus generated mistrust amongst the participants. however, my outsider identification reflected by my western education allowed me to negotiate my positioning and be perceived as an ‘insider from afar’. on many occasions, i had to emphasise my non-affiliations with romania and my western credentials in order to dwindle peoples’ mistrust. i do not pretend that i was seen as an insider into the romanian community, but rather i worked my way into the community. due to the combined identity i was finally attributed, i was perceived as the product of both the east and west and thus trustworthy, fair and reliable, characteristics associated with the west, but also empathetic, correlated with my romanian side. as a researcher, my aim was to understand my participants’ social worlds by giving them voice to express their perceptions, feelings and lived experiences (guest et al. 2012) and describe and interpret their social lives using the theories available. data is constituted from the meanings the participants attribute to their lifeworlds. data analysis the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 126 political belonging and fantasies of inclusion. romanians in london and paris was performed applying the hermeneutic cycle, which consists of three stages: reading of the participants’ testimonials, engagement in reflective writing of the lived experience of human experience and finally interpreting the data (van manen 2007). epistemologically, hermeneutic phenomenological research acknowledges that new meaning is created through subjective experiences and research, with the new knowledge produced being subjective (kafle 2013:194). the data analysis process combined two approaches. from a technical perspective, thematic analysis was used in order to organise the data. within an initial phase of data analysis, the transcripts were examined, in order to highlight important quotes which shed light on participants’ experiences of social encounters and belonging (creswell 2007). then, the data from the textual data-sets was interpreted and themes were identified. the themes were organised using inductive reasoning which aims “to establish limited generalisations about the distribution of, and patterns of association amongst observed or measured characteristics of individuals and social phenomena” (blaikie 2010). in parallel, academic articles about the overarching themes were read in order to engage with the perspectives from the literature. lastly, connections and similarities between the themes, as well as patterns, and differences were identified and labelled and led to the development of a table comprising the themes and associated quotes/extracts from the interviews under labels which were connected to participants’ socio-economic demographics such as gender, age, employment type, temporal dimensions. this analytical process involved the ‘fleshing-out’ of interviews in order to identify examples, which reflected the themes identified (chaitin et al. 2009). during this stage, the lived experiences of participants were analysed. then, the table was put in a larger cultural, social and theoretical context in order to provide a conceptual framework for personal stories about participants’ worlds (larkin et al. 2006).thematic analysis was therefore useful in capturing the complexities of meaning within the interviews (guest et al. 2012). the second approach consisted of the interpretation of the data from a phenomenological stance in order to generate knowledge about lived experiences of the everyday from the perspective of the individual. the ontological assumption was that the process of understanding participants’ social worlds is itself subject to my own interpretation of their social world. therefore, this study engages in a double interpretation of the social world. firstly, the interviewees’ testimonials represent an interpretation of the everyday which is shaped by daily encounters. secondly, participants’ social meanings are once again interpreted from my own point of view in order to de-code and analyse them. this implies that my own interpretation of participants’ accounts contributed to and shaped data organisation and analysis. i was immersed in the social worlds of the participants and was part of the knowledge production through constant reflections on the data i was analysing. the data collection and analysis thus rested on an ongoing interaction between myself and the participants’ testimonials in order to generate new theories based on new perspectives of the participants’ lifeworlds. in parallel, knowledge is modified through the act of analysing participants’ understandings of their social worlds. thus, ontological considerations come first, followed by epistemological and methodological approaches (de gialdino the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 127 claudia paraschivescu 2009 paragraph 53). new ways of knowledge production rely on understanding the social position of the interviewee (gender, age, status etc.) followed by connecting their identities to the emergent concepts. iv. romanian emigration to london and paris. romanians are part of a new cohort of migrants in the eu as they only started to emigrate to eu countries after the fall of the communism in 1989. before, only ethnic minorities (mainly germans and hungarians) were allowed to leave the country. however, it was only in 2007 that the numbers of romanians in other eu countries (mainly spain and italy) significantly increased, as romania joined the eu, which guaranteed free movement within the eu. they then became the ‘new europeans’ (favell 2008, mcdowell 2009), alongside bulgarians and the accession 8 countries which joined the eu in 2004 (czech republic, estonia, hungary, latvia, lithuania, poland, slovakia and slovenia). the current estimates for the number of romanians living in western europe is over two million people. worldwide, it is estimated that there are 10 million individuals, taking into account the romanians who emigrated between the two wars and during the communist regime. in total, a third of romanians live outside of romania (trandafoiu 2013:7), and the figures are likely to have increased since 2013. moreover, one third of romanians living in romania at the moment have worked outside of the nation-state at one point in their life and over 40% of those consider re-emigrating (sandu 2010). while most of the literature on discrimination has focused on non-european immigrants in europe, there is starting to be a large body of literature focusing on discrimination of eastern europeans in western europe (scheibner and morrison 2009) more generally, and romanians in europe (see fox et al. 2012, moroşanu and fox 2013, mcmahon 2016), more particularly. this latter point is one also made in gijsberts and mcginnity (2012)’s paper, but from the perspective of the destination country responses to new migrants. their paper stresses the need to acknowledge the extensive racialisation of white minorities following eu enlargement. european intra-eu migrants have traditionally been considered ‘unproblematic’ in much of the previous literature due to the tendency of white migrants to assimilate rapidly and often to represent privileged migration flows. however, there is now an increasing recognition of the ways in which eastern european migrants are ‘othered’ and distinguished as ‘culturally’ problematic in national discourses (mcdowell 2009). romanians from london have faced negative press mainly attributed to the marginality and precariousness of those leaving the country of origin and heading to spain and italy (but also france and britain) have displayed (mcmahnon 2012), as well as various activities such as begging, prostitution and pick-pocketing (tesăr 2011). fox (2012) argues that romanians have been subject of negative reviews mainly due to the unexpected large numbers of poles in britain, which triggered unease amongst the british public regarding the potential numbers of new migrants. they have recently the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 128 political belonging and fantasies of inclusion. romanians in london and paris occupied a central place in the british media. between autumn 2013 and spring 2014 there were daily articles in the (mainly tabloid) press, focusing on the ‘massive influx’ of romanians (and of bulgarians) to the uk and their portrayal as criminals and gypsies (vicol and allan 2014). the french press is rather contrasting, publishing articles on roma deportations back to romania as well as on romanian cultural aspects such as the film and literary scenes. interestingly, romanians’ hostile portrayal in the french media is of a cultural nature (with focus on the roma), while in the british media the focus has been rather on the economic nature of immigration. these hostile representations of romanians as ‘failed citizens’ (anderson 2013) of either a cultural or economic nature, have made the romanian population visible in france and britain. quite often, the anonymous/invisible romanian majority, the ‘good citizens’ (ibid.) has been thought of as meeting the same characteristics as the visible part of romanian population. moreover, the deportation of romanians citizens from france (but also italy) shows that romanian nationals are not treated equally, and highlights “the presence of a border between the two countries, distinguishing between those who belong on each side” (mcmahon 2012:211) deportation defines the legal and normative dimension of the political community as it is only applied to those individuals who are seen as not good enough to become a citizen of the country of residence. as anderson et al (2011:555) argue, [m]aking an individual subject to deportation is a way of demonstrating that an individual is not a citizen one whose membership and presence is unconditional. but deportation may also construct individuals as unfit for citizenship, as not living up to its normative requirements”. thus, the deportee is denied residence in the host context and membership of the political community. consequently, the rules underpinning the migration of romanians to western europe determine their positionality towards the sending and receiving country. v. achieving socio-cultural integration through political belonging. the directive 38 (european parliament and council directive 2004/38/ec) reads: “in accordance with the prohibition of discrimination on grounds of nationality, all union citizens and their family members residing in a member state on the basis of this directive should enjoy, in that member state, equal treatment with nationals in areas covered by the treaty, subject to such specific provisions as are expressly provided for in the treaty and secondary law.” in theory, all european citizens enjoy similar rights conferred to them by being citizens of states which are members of the eu, however some citizens are seen as enjoying these rights more than others. the effectiveness of european citizenship in ensuring equality between citizens is therefore questioned, as it has resulted in a the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 129 claudia paraschivescu distinction between citizens and non-citizens which is still maintained, despite it being against eu law (see mcmahnon 2012 for a legal analysis of this regarding romanians in italy). for romanians, political membership of the host country is imagined as translating into european membership which they are excluded from on the basis of their romanian nationality (see also byrne 2012:536). as such, a french/british passport is not only imagined as a tool which allows the interviewees to overcome various forms of discrimination, but also, implicitly, to achieve equality during encounters with the members of the mainstream and consequently achieve sociocultural integration. many respondents saw the acquisition of host country citizenship as a way to mitigate the effects of discrimination, as a pathway to inclusion in the french/british space. as such, it was not the outcome of life satisfaction in the host context (as massey and redstone 2006) found, but rather the trigger of low life satisfaction and the belief that their lives could noticeably improve if they became naturalised french. while passports can be associated with a feeling of belonging and loyalty to the state that issues them, they can also have a political dimension, due to their capacity to define peoples’ statuses based on the country of issue. v.1. legal discrimination taking the romanians case, many participants have argued that a western european passport gives them more confidence and a feeling of safety, especially in moments of high vulnerability, such as border crossing. on the one hand, they have practical benefits such as visa-free access to a large number of countries, which facilitates international mobility. not all passports guarantee the right to international mobility. often, mobility is “encouraged for passport holders from privileged nations, particularly rich western countries, at the expense of severe restrictions for others” (neumayer 2006:2). on the other hand, they reveal symbolical advantages, such as social status enhancer, when stigmatised groups adopt a less stigmatised identity. at the time of conducting the fieldwork, romanian nationals enjoyed freedom of movement to both france and britain. nevertheless, many participants recall negative treatment by the case workers in charge of their visa application prior to 2007, when romania joined the eu. such is the case of emma, who describes the humiliation she experienced in bucharest during the visa application process to visit her romanian husband in london: i had a very bad experience at the embassy, or whatever it was, british consulate, when i went to collect my documents, (…) because they asked me to bring along photos to demonstrate that i am married to [her husband], and i came with some photos… i did not have very many with the two of us (…). and i had many from the wedding. and the lady from the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 130 political belonging and fantasies of inclusion. romanians in london and paris the counter told me that [these photos] do not demonstrate anything. i felt like a second class citizen. (...) i left and i started to cry, i thought i would not get [the visa] and i felt humiliated. how can i demonstrate it? i have all the rights to go see my husband! the precariousness which resulted in emma’s understanding of her persona as being a second class citizen is experienced politically, through the difficulty in obtaining the documents necessary for travel. her human right to family reunion was undermined by british immigration procedures, which might have forced her to live in a state of emotional dislocation. the socio-cultural and political attributes of the host country passport, which translate into romanians’ ability to surmount the challenges associated with their second-class citizenship, was an opinion held by numerous participants. likewise, adina from paris explains how whilst on holiday in prague with a french friend, they took the shuttle from the airport without having a valid ticket. unluckily, a few stops later, a ticket inspector apprehended and fined them. when adina handed her romanian id, she felt that inspector's facial expression betrayed his hunch that she had to be romanian since she had not respected the law, by not holding a bus ticket: and when he saw that it is a romanian passport, i can’t tell you the face he had, i mean… that’s what i mean, talking about barriers… i was in prague, in the czech republic… when he saw [the id], it was as if [he said]“it makes sense, i was expecting you to be romanian”, you know? (smiles) the quote highlights a two class system. in this context, romanian nationality becomes ascribed and seems to determine her daily interactions. consequently, this caused her to regard a french identity card as beneficial: "it is better when you show them a french id than a … [romanian id]”. this belief held with confidence is shared by numerous participants. for example, an orthodox priest interviewed in london, who claimed that as possessors of a british passport, romanians “gain a bit of trust in front of the british [and] you are not subjected to a shakedown at the romanian/hungarian border”. these examples point to the transnational dimension of western citizenship, which becomes a prerequisite for equality outside of the host polity which allocates citizenship. indeed, despite adina having the work permits necessary to live and work in the host country, the necessity of a foreign passport is explained by the protection the second passport offers to its citizens found outside the national borders. most participants considered that a french or british passport would allow them to be less likely to be regarded with suspicion. daily lived experiences influence their projections of political belonging to the host country and country of origin. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 131 claudia paraschivescu v.2. economic discrimination the importance of host country citizenship is also emphasised in terms of building a life in the host country, which often starts with employment and a stable home. teodora, who works as a nanny in paris without a work permit, and despite holding a university degree in tourism, argues that both her and her husband consider the acquisition of a french passport necessary to build a viable future in france: [t]o have more rights, not because we feel discriminated against. for example, when it comes to a mortgage, it would maybe make it easier… or maybe to find a job… maybe it is only in my mind or maybe it does help… [maybe] we delude ourselves that we would have more rights as french citizens (…). i know romanians who got mortgages and they do not have french citizenship, but i think you have more credibility if you are a [french] citizen. as a french passport holder, teodora thinks she would be able to overcome the barriers erected by the precariousness of her romanian nationality in the labour and housing market. precariousness is experienced through the perceived denial of “spatial security rights” (yuval-davis 2011:57), which prevent immigrants from easily planning a future in neoliberal times characterised by both the erection of boundaries between citizens and non-citizens and the control of peoples’ intimate lives. access to the housing and employment market is, in theory, open to romanian citizens on the basis of their citizenship of the eu. however, due to unfavourable everyday experiences in france caused by unfulfilled professional expectations and discrimination, the respondent does not see herself equal in front of the law, and thus not entitled to the rights conferred by her european citizenship. this correlation is not counterintuitive. indeed, beatrice who works as accountant for a london-based loan company, indicated that romanians can easily be refused a mortgage application on the basis of their nationality, as often it comes jointly with a low credit score and an undesirable previous housing location. precariousness thus becomes proxy for romanian nationality, which does not allow the participants to attain administrative invisibility in the eyes of french and british officials. this provides some explanation as to why a western passport becomes a means for gaining access to material resources in the host country, resources which are allocated on the basis of nationality. both home ownership and employment are to be read as having an impeding consequence on immigrants’ behaviour. home ownership, perhaps even more than employment, creates a social tie to the place individuals are located in, especially since it becomes a long term commitment due to the financial investment (such as a mortgage), and is thus filled with a sense of hope for a safe future in france (see for a similar argument hage 1998:103, taylor 2009). home owners are thus less likely to consider leaving the host country than tenants (helderman et al. 2006). the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 132 political belonging and fantasies of inclusion. romanians in london and paris however, due to unfavourable everyday experiences in france caused by unfulfilled professional expectations and discrimination, she does not see herself as equal in front of the law. v.3. socio-political discrimination nationality is often seen as reflecting the belonging to the political community of the country which issues it. it is enacted through social, political, cultural entitlements. in other words, it entitles its possessor to recognition in the host country as the next quote shows: “even if you get [french] citizenship, you won’t be considered fully fledged french… they will always have, even if they trust you, a thing, ‘you are not french after all’. (…) but if i have decided to have my life here, at the end of the day you have to vote in this country, you need citizenship in order to vote (…). since i want to remain here… i will certainly need it, because if i don’t take it, i will always feel like a tourist. [owning a french passport will make me] feel more integrated (…) and it will certainly facilitate many things. (…) i feel that i am perceived differently because i am not french, or maybe it is all in my imagination. but maybe when i get the citizenship it will disappear. (…) i have decided to stay here and not return to romania, i think i need to do everything all the way through, inclusively taking the citizenship. it can help facilitate some stuff.” interestingly, while the interviewees from london point to their onomastic and linguistic markers, such as a foreign name and accent, which prevents them from fully feeling accepted in the british society as ‘one of them’, the participants from paris refer to a form of socio-cultural capital which it is impossible to acquire in order to become fully fledged french citizens, while simultaneously expressing their longing for recognition in the french realm. irina (above) goes to great lengths to explain that a french passport is part of a purely personal approach to make her bond with french society, although she knows that this will not translate into her being seen as part of the society. her statement is about self-constructed definitions of belonging despite ascriptions of non-belonging. french citizenship represents a personal validation of her attachment to france as she wants to settle there (and hence she is not here on a temporary basis), and it uses it to exclude the others, who are the tourists. in other words, it reflects her permanent status in france and gives her more confidence in the relations with the citizens and ideally it would allow her to be perceived as ‘one of them’. however, she realises that despite being legally french, she will not be read as french in social circles. this is due to the fact that, as isin and wood (1999:3) argue, “group identities such as those based on racial, gender, ethnic and linguistic aspects conflict with citizenship, because while citizenship signifies ‘universal’ attachments, group identities are particular”. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 133 claudia paraschivescu a french passport empowers and entitles irina to claim belonging to the french society. the inhabited space at the moment characterised by ambivalence attributable to her foreign nationality would be replaced with a safe space in which she feels she would be included and allowed to belong to, on the basis of her newly found membership. interestingly, in parallel, she understands its limits, reflecting the impossibility of full inclusion into the mainstream. vi. conclusions this paper was concerned with romanians’ passport stories at an individual level, a perspective which is largely absent from the current literature. it argued that a western european passport was often sought in order to mitigate the effects of legal, socio-political and economic discrimination. imaginings of citizenship operate relationally, as everyday encounters with inequality locally, nationally and internationally influence the participants’ self-perception and the necessity of the host country’s legal citizenship. the participants from france expressed some emotional belonging reflected by their long term plans in the host country, such as home ownership and employment in the public sector, which reflect the desire to create a stable future in the country of immigration. financial investment into society reflects their long term prospects of settling down. since they do not see their stay as temporary, they are prepared to improve their situation in the host country. uncertainty about permanence is dispelled gradually through (the thoughts of) owning a french passport. in contrast, romanians from the uk were more likely to envisage temporal disruptions in their stay in britain. british citizenship was mainly sought for mobility reasons, which might correspond to romanians’ plans to one day leave britain. the temporality of the british experience reflects the ambivalence towards the host context and perhaps the desire to return to romania. this can have future negative implications for britain, such as brain drain (see for a similar argument szewczyk 2014). also, if citizenship of a given country reflects a genuine bond based on loyalty, this connectedness between the temporary immigrant and the context of arrival is challenged by the temporary nature of the migrant’s presence which shifts conceptions about national loyalty and belonging (see also bauböck 2011). the tales of romanians revealed that citizenship was experienced through society practices of inclusion and exclusion rather than as a political membership. as such, affective belonging is not totally absent from individuals’ stories, as they strive to become part of the ‘social fabric’ of the host country by becoming nationals. however, the non-validation of the emotional belonging by the mainstream triggers their affective reorientation towards the country of origin or their positioning in ambivalent spaces of belonging. thus, migrants’ perspectives of citizenship might be better understood as experiences rather than fixed legal memberships. this is due to their understanding of citizenship, which changes over time as a result of social interactions in the host country and it therefore allows for gradual changes in perception. thus, a western european passport was sought in order to claim an ethnic status superior to the romanian one, the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 134 political belonging and fantasies of inclusion. romanians in london and paris based on accessing a bundle of rights not easily available to romanian nationals. therefore, participants’ practices of political belonging can be interpreted as a strategy to move from the margins both ethnically and institutionally in order to achieve inclusion into the mainstream. to conclude, this article was not interested in how exclusion and boundaries are maintained by political actors such as the state. rather, it explored how processes of inclusion, exclusion and differentiation provide insights into the limits of both a romanian and a western passport. it showed that although there is a diversity of reasonings behind naturalisation, western citizenships allow romanian respondents to embrace a sense of security they lack without it: identity security and mobility security. french and british naturalisation, from a romanian applicants’ perspective, represents strategic naturalisation. this highlights the second class status of romanian citizenship at the european level, where all member-states are not perceived as equal. the similarities in both contexts reflect romanians’ peripheral social location. indeed, the european liberalisation of mobility rules did not engender the presence of equal rights. the aim of eu citizenship, and one of its founding principles, has been to create, through the elimination of national borders, a space defined by a rejection of nationality based discrimination (maas 2008). as well as an economic project, european integration is a political project intended to create a common european status by virtue of 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(2011). the politics of belonging: intersectional contestations. london: sage. the age of human rights journal, 7 (december 2016) pp. 120-140 issn: 2340-9592 doi: 10.17561/tahrj.n7.7 140 political belonging and fantasies of inclusion. romanians in london and paris claudia paraschivescu0f abstract: this article analyses from a bottom-up perspective romanians’ complex emotions surrounding their reasoning for applying for a french or british passport. it illustrates the extent to which interviewees’ fantasies of inclusion in the host cou... i. introduction ii. theoretical framework. the interplay between socio-cultural integration and aspirations of naturalisation. iii. researching romanians in london and paris. iv. romanian emigration to london and paris. v. achieving socio-cultural integration through political belonging. v.1. legal discrimination v.3. socio-political discrimination vi. conclusions references the position of children’s freedom of thought and religion the age of human rights journal, 1 (2013) 67 the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy daniel capodiferro cubero 1 abstract: in the case lautsi v. italy, the european court of human rights ruled twice on the validity of the presence of crucifixes in public school classrooms of a country where the principle of secularism rules. in the first judgement, the consideration of the children’s religious freedom and, implicitly, their best interest helped the court to justify the prohibition of the symbols, although it was not the main argument for it. however, the great chamber revoked this decision, considering the presence of these symbols in classrooms adequate under the european convention by widely applying the doctrine of the margin of appreciation and, additionally, ignoring the legal position and the needs of the pupils, whose freedom of religion was reduced to a mere object of the parental guide capacities from a very questionable perspective. keywords: freedom of thought and religion. children’s best interest. children’s rights. educational neutrality. secularism. religious symbols. european court of human rights. contents: i.introduction; ii.the children’s best interest and the freedom of thought and religion; iii.t he presence of the child’s freedom of thought and religion in the arguments of the second section judgement; iv.the great chamber judgement; v.conclusions. i. introduction on 3rd november 2009, the second section of the european court of human rights (ecthr) gave judgement in response to the lawsuit submitted against the italian republic by ms. soile lautsi. the appeal was based on a breach of her freedom of thought and religion of art.9 of the european convention of human rights (echr) and her right to educate their children in conformity with their own religious and moral beliefs recognized in art.2 of protocol no.1. the applicant considered that the presence of crucifixes in italian public school classrooms, in which their children are enrolled, is an "interference incompatible" with these rights and, in particular, with the principle of secularism in which she wants to educate their children, blaming the state for allowing it with its current rules2. 1 research group on fundamental rights. department of political science and public law. universitat autònoma de barcelona. 2 lautsi v. italy, no. 30814/06, §3 and 7, echr 2009. daniel capodiferro cubero the age of human rights journal, 1 (2013) 68 in her previous complaint before the italian national jurisdiction, the administrative court of veneto region, by judgment 1110/2005, of 17th march, refused to rule on the applicant's claim in relation to the violation of their rights to freedom of thought and religion raised in the terms of these articles of the echr. the national court concluded the crucifix is the "symbol of the unique history, culture and national identity –as a characteristic immediately perceptible– and the expression of some of the secular principles of the community", so "legitimately can be placed in the public school classrooms, as not only not incompatible, but an affirmative and confirmatory addendum to the republican principle of the secular state"3. however, before adopting its final decision, the court submitted to the italian constitutional court a question of unconstitutionality against the applicable law in which, paradoxically, it argued that the crucifix is "essentially a christian religious symbol of univocal confessional meaning"4. the italian constitutional court finally dismissed the application for strictly formal reasons, without ruling on the merits5. finally, the state council, as the final appeal court in the administrative order, denied in 2003 the last ms. lautsi's request. its judgement justified the presence of the crucifix as a symbol of civic values of the legal system that, in the cultural italian context, is also a suitable representation of the values proposed by the principle of secularism6. the second section of the ecthr agreed unanimously with ms. lautsi’s application, concluding that italy had violated her right to educate her children in conformity with the own religions and philosophical convictions in connection with her freedom of thought and religion. however, the judgement was appealed to the grand chamber by the italian government in january 20107, and it overturned the initial ruling. the great chamber determined that there was no violation of art.2 of the protocol no. 1 and there were no separate issues that could involve a possible violation of art.9 echr. the main argument of the grand chamber to overturn the first instance judgment was (notwithstanding the subsequent more detailed analysis) that the concrete content of the rules on the presence of religious symbols in public schools was a question that falls within the discretion or "margin of appreciation" enjoyed by each state onward its main obligation to respect the right of parents to ensure the education of their children according to their religious and philosophical convictions8, because of the impossibility to find a common approach to all european countries. the most obvious and general question underlying these rulings, especially the great chamber one owing to its arguments, is the existence of possible limits to the 3 administrative regional court for the véneto region, third section, judgement no. 1110/2005, §16.1. 4 italian constitutional court ordinance no. 389/2004, 15th december, §10. 5 from this judgment some questions about the operation of italian constitutional system arise, particularly related to the scope and limits of the constitutional control of the law according to the art.134 of the italian constitution, a precept that is only applicable to those rules which have force of law. there are also issues about the real force and the position of the italian constitution as the higher rule in the legal system, since it is no possible to make a constitutional judgement about the content of preconstitutional applicable rules because of the lack of an explicit derogating provision. 6 council of state, section vi, judgement 556/2006, 13th february, §3. 7 lautsi v. italy [gc], no. 30814/06, §5, echr 2011. 8 lautsi v. italy [gc], no. 30814/06, §76, echr 2011. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 69 rules on the relation of states with the religious phenomenon as a result of the need to preserve the fundamental rights of citizens. the problems about the enjoyment of freedom of thought and, eminently, religion, have become a challenge for modern societies as a result of increasing pluralism, and is a good example of how difficult it is for states to conciliate the constitutional principle of secularism with the religion’s increasing active role in the public sphere and, therefore, with its symbols (parejo 2010). as a question eminently subjective, the arguments employed for defending or refusing the different approaches are usually impregnated with a powerful ideological charge very complicated to get away from. the echr does not prejudge the different models of relationship between state and religion, but it imposes a duty of impartiality and neutrality that results in the inability to assess the legitimacy of different religious beliefs of its citizens9. this neutrality is an essential element for the public order and to ensure the necessary tolerance in democratic societies10, constituting, therefore, the starting premise for the free and correct exercise of individual religious freedom. thus, this right comprises both the possibility to profess and express certain convictions as well as the option to not believe, always within the limits that a democratic society impose in order to protect public safety, public order, health or morals and the freedoms and rights of others. if reading all the ecthr doctrine (at least, before the lautsi affair) it is possible to say that neutrality is desirable in those states that opt for the principle of secularism to govern its relations with the religion, but also in those who have institutionalized any form of enhanced relationship with one or several confessions11. in both situations, the public authorities must not take an active role in the promotion of certain religious values; they should only ensure a peaceful coexistence between different religious and philosophical options. the religious phenomenon should always be channeled into concrete rules in order to ensure a real pluralism and respect for the rights of all citizens. however, that role of neutral guardian is not easy to play. it is not easy to determine when the public expression of a religion, particularly of religious symbols shared by the majority or not, violates the rights of other people. for this reason, the ecthr has usually turned to the doctrine of the margin of appreciation when possible. however, the different judgements about religious symbols in public space share similar 9 leyla şahin v. turkey [gc], no. 4474/98, §105, echr 2005-xi. 10 id. at §107. 11 according to the spanish doctrine (llamazares 2002; suárez 2005), neutrality is an attitude of abstention by the state with regard to private religious beliefs because it is, essentially, an individual question. but the principle of secularism is more than this. it also involves a clear separation between political power and religion and an attitude of cooperation with all faiths by the state in terms of equality intended to facilitate the individual exercise of the freedom of religion of all citizens. this principle is also in force in italy, for the italian constitutional court; secularism emerges from the combined interpretation of various provisions of the italian constitution. according to mancini (2010), this principle does not mean indifference towards religion but the equidistance and impartiality regarding different faiths, which the state is obliged to maintain in order to safeguard the freedom of religion in a context of religious and cultural pluralism, as well as a positive attitude towards all religions and religious communities. daniel capodiferro cubero the age of human rights journal, 1 (2013) 70 conclusions, and the arguments and principles employed to base them have been only slightly different until the second lautsi ruling, whose argumentative diversity shows an important rupture. the court had always maintained a secular approach in their final decisions (gibson 2009), which has not prevented it to be accused to employ this doctrine in favor of christian values and against the islamists ones because the final conclusion was always that neutrality should be imposed on these (mancini 2010). apart from evaluative judgments on involved religious beliefs, if the judgement of the grand chamber is compared with the similar precedents, a clear change in the court’s priorities is visible. in previous pronouncements, including the first in lautsi, the children’s freedom of thought and religion has been, more or less, considered a right that can be breached by a religious expression in a public educational context12, but the great chamber only pays attention to the parents’ rights and its relation with the margin of appreciation of the states. without providing arguments, the negative freedom of religion of those who are directly exposed to the religious symbol is discarded as a valuable element of judgement. this position is not compatible with the idea that children’s rights are autonomous ones, different from the rights of the parents. the freedom of thought and religion of the children is closely related to the adults’ freedom to choose the religious and moral education of them, but is a right with a specific object of protection: the formation of their conscience, an objective that should be achieved mainly through the education and considering the “children’s best interest” as the essential and basic principle for it. the lautsi affair was an opportunity to establish the protection guidelines for this right at the supranational level, so it is important to know whether the different arguments and conclusions of both rulings have any consequence on its configuration under the echr, but not as an isolated right but regarding the parents’ formative rights and the principle of the children’s best interest. the doctrine who has studied the lautsi judgements has not given more than a secondary treatment to the right of children. authors are mainly focused in the debate about the implementation and the scope given to the margin of appreciation in the case of religious symbols in the public space, the value and the power of them or the meaning and consequences of the principle of secularism. there are hardly mentions of the presence of children’s freedom of thought and religion as a component of court’s arguments13. given this situation, the main objective of this article is not to study in-depth all theoretical questions of the lautsi judgements, but just to identify how the freedom of 12 aside from some arguments of the second section judgement in the lautsi affair, this point of view can be found in dahlab v. switzerland (dec.), no. 42393/98, echr 2001-v, and dogru v. france, no. 27058/05, 4th march 2009, where the court expressly rejects to assess the complaint under the art.2 of the protocol no.1. 13 among the consulted authors, only barrero (2012, p.382-385) identifies the presence of the negative dimension of children’s religious freedom as a part of the arguments employed by the ecthr in the first lautsi judgement, as a part of a wider analysis of the case law. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 71 thought and religion of children is considered in each one. it is important also to check if the court conclusions are useful to configure a set of rules for its international protection at the european regional level. ii. the children ’s best interest and the freedom of thought and religion the identification of children as subjects of fundamental rights has many problems due to their subjective particularities. unlike adults, whose full legal capacity makes them the natural owners of the protective mechanisms guaranteed by the rights, children have traditionally been seen as vulnerable subjects needed of protection and guidance, humans in development process incapable of acting autonomously. this point of view changed after the second world war, when the idea of the principle of human dignity as the foundation of the legal order above all individual considerations leaded to consider also children as subjects of fundamental rights, as a way to channel their personal development, on a basis of equality with adults (asensio 2006). just because his developing personality, the child is "a creditor of a special protection mandate that justifies the need to protect the evolutionary process" in which he is immersed (valero 2009: p.48). in response to this peculiarity, the legal status of the children’s fundamental rights cannot be the same as the adults’ one, suffering a restriction on their capacity to exercise them according to their maturity. for this reason, these rights are regulated in specific legal instruments, based in their own substantive principles. at international level, and with general scope, children’s rights are recognized in a specific international treaty, the un convention on the rights of the child of 198914. this text comprises in an integrated and organized manner all the children’s rights, resulting in a legal code distinguished by its specific target group. the only particular feature of the convention is that its beneficiaries are a concrete group defined by its age, which covers, provisionally, all humans at a concrete stage of their life (galinsoga 2002). for the convention, underage people are individuals with the right to a physic, intellectual and social development and, therefore, they are holders of both the convention’s rights and those regulated in any other international treaty. thus, the underage child is conceived as an active subject of rights, independent and direct holder thereof, not requiring any intermediaries for exercising them; it is assumed, as initial premise, that the rights and interests of children will not necessary be the same as those of their parents or guardians (puente 2001). at european regional level, there is no a specific text regulating all children’s rights. the european convention on the exercise of children's rights of 1996 is focused in procedural rights, so it has a limited material scope. additionally, there are other legal provisions dedicated to children, noteworthy of which are the arts.7 and 17 of the european social charter, that ensure the right of children and adolescents to a special protection against physical, social and moral dangers to which they are exposed 14 resolution a/res/44/25, adopted on 20 november 1989, by the general assembly of the united nations. in force since 2 september 1990. daniel capodiferro cubero the age of human rights journal, 1 (2013) 72 (particularly against those consequence of their condition of workers) and the right to an adequate social, legal and financial protection respectively. the text also ensures their protection indirectly through other articles referred to the protection of maternity or family. along with the children’s autonomy, the main principle and interpretative key of the convention on the rights of the child, according to the un committee on the rights of the child, is their “best interest”. in the sphere of the council of europe, this concept appears in the art.1.2 of the european convention on the exercise of children's rights as the main purpose of the text, and it is also mentioned tangentially in other instruments15. despite this principle is not established with general scope at european level, it is reasonable to think the children’s best interest is fully integrated in the echr a finalist guideline16, operating as a specific mechanism to ensure the dignity of a concrete collective. this conclusion is the result of a combined reading of the european social charter, the proclamation of the universal ownership of human rights made by the art.1 echr and the general prohibition of discrimination of the art.1 of protocol no.12. the ecthr itself did not hesitate to confirm or set some limits to the educational activities or curricular contents through measures clearly oriented to protect this best interest, as will be shown below. the idea of the “best interest” suggests that underage people, because of their physical and intellectual immaturity, need a special protection even beyond their autonomy in order to become a citizen in the future. despite its importance, this generic and formal standpoint shows a very complicated operability. it is a legal standard of dynamic nature, because it evolves according to the subject’s circumstances, with a strong ethical dimension, circumstances that make its practical application not easy (rivero 2000). the children’s best interest is an undefined legal concept that cannot be delimitated in the abstract, but should be materialized in each case by weighing the different interests involved and the specific current circumstances. anyway, their best interest must always be the final object of the rules affecting children. this is a very important principle for civil law, but this is not its only scope of application. it also constitutes an important teleological interpretative standard for fundamental rights, because it allows the evaluation of possible violations when there are children implicated. in this role, the idea of children’s best interest coincides with the principles of human dignity and free development of the personality (valero 2009), since it puts the child in the position of a subject of rights, refusing the notion that he is 15 the art.6 echr establishes the “interests of juveniles” as a limit for the trial publicity. the art.5 of protocol no.7 allows the governments to take “such measures as are necessary in the interests of the children” related to the circumstances of his parents’ marriage. 16 see “the principle of the best interests of the child – what it means and what it demands from adults”, lecture pronounced by thomas hammarberg, commissioner for human rights of the council of europe, in warsaw on may 2008. accessible in: https://wcd.coe.int/viewdoc.jsp?ref=commdh/speech(2008)10&language=lanenglish&ver=original &site=&backcolorinternet=dbdcf2&backcolorintranet=fdc864&backcolorlogged=fdc864 the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 73 a simply object of them (joyal 199117). from this perspective, it is possible to establish an essential relationship between the children’s best interest and their freedom of thought and religion, because this fundamental right is oriented, particularly, to protect the free configuration of the subjective moral and personal parameters. although the children’s best interest and their freedom of thought and religion are inseparable and complementary, they are two different questions. not all interference in the child’s conscience will be contrary to his best interest. there will be incompatible to this principle only those which may disrupt his moral value system affecting his future autonomy, so the child would not develop freely. likewise, every measure of ideological discrimination against a child must be considered, as well a violation of a fundamental right, as incompatible with his interest, because can constitute a coactive measure intended to make him assume certain ideas different from his own or his parents’ ones. the third element in the equation of the children’s best interest is the right to education. first of all, as the primary mechanism to inculcate the concrete values that allow children to develop their individual personalities. secondly, as the instrument the state recognizes to adults for rightfully influencing their children’s convictions. this second dimension of education makes, in practice, the children’s freedom of thought and religion to be controlled by their parents, existing the risk of identifying the children’s best interest with the parents’ one, which is not correct. looking at the rules, according to art.5 of the convention on the rights of the child the parents have the duty of providing “appropriate direction and guidance in the exercise by the child of the rights recognized” according to his evolving capacities; this is a clause oriented to prevent abuse and impositions from parents, also applicable to the freedom of thought and religion. then, when the art.14 of this convention restricts the exercise of the child’s freedom of conscience according to his capacities and under the parental direction is not allowing parents to make their sons and daughters to adopt their ideas, but to advise and protect them in their educational process according to their moral criteria. even though there is no specific mention to the child’s freedom of thought and religion in the council of europe texts, the protocol no.2 of the echr (art.2) recognizes the right for parents to have their children educated in accordance with their religious and philosophical views. but, according to the above international rules, this cannot be conceived as an absolute right. the freedom of conscience is recognized for children under the general mention of art.9 echr and, if limited as a consequence of their lack of maturity, it should be respected and protected as a right to maintain certain convictions, to change them and to not to be compelled to do it, always under the parental guidance. an excessive interpretation of parental rights, which puts adults’ convictions over the education in freedom, involves the denial of child’s autonomy and personality 17 despite this assessment, the author is particularly critical with the vagueness and subjectivity the translation of this principle leads, and she considers whether it would be better for children to be normal subjects of the general fundamental rights system, without any applicative peculiarity. daniel capodiferro cubero the age of human rights journal, 1 (2013) 74 and, above all, voids the content of his freedom of thought and religion, not respecting his best interest. it is true that, as a consequence of the situation of dependence in which is involved and the subjective content of his interest, child’s rights cannot operate as an absolute limit for the parents or mentors. but, in line with the superior consideration of the children’s best interest as a projection of their dignity, the purpose of the parental guidance is just helping children to achieve the future autonomy thanks to a comprehensive education oriented to their particular benefit. as an instrument of parents and public authorities to protect children against negative or not desirable impacts, the right of moral guidance should be exercised at the service of pupil’s freedom of conscience. in other words, it has to look for their best interest. for this purpose, the public authorities have a complementary role of the parents’ primary obligation. the state, through the educative administration, is the guardian of the formation of future citizens in the most delicate stage of their life, when their conviction system is more vulnerable. in order to correctly implement the right to education, the state should create a neutral environment that allows every child to develop his specific interest without any other interference than the legitimated ones. in education, in its broadest sense, moral or evaluative elements will always be present, and sometimes it will be difficult to determine when they are appropriate to ensure the children’s best interest. however, as a guideline, one can assume that the required values are only those which permit the child to improve his critical judgment according to his evolution, promoting present and future personal freedom. every other moral content should be judged according to its incidence on the children’s best interest through the two recognized rights. first, the right of the parents to have their children educated in accordance with their moral parameters, which will not be violated while the transmission of ideologically charged content is done in an objective, critical and pluralistic manner, avoiding any proselytizing intention (valero 2009). and, above all, the freedom of thought and religion of children, which benefits if there is a plurality of objective educational contents and perspectives presented on equal terms. iii. t he presence of the child ’s freedom of thought and religion in the arguments of the second section judgement the first ecthr judgement in the lautsi v. italy affair in november 2009 rules on an application submitted by ms. lautsi where, in her own behalf and on behalf of her children, she invokes the breach of two rights identified autonomously: her right as mother to educate her children in her own religious and moral beliefs (art.2 protocol no.1) and her freedom of thought and religion (art.9 echr)18. according to the complainant arguments, no possible violation of children’s freedoms arises before the court, since the complaint only refers to ms. lautsi’s own rights. the application suggests that the hypothetical infringement of children’s freedom of thought and religion because of the presence of a religious symbol in their classrooms is a subsidiary issue of the mother’s rights; however, the fundamental reason which sustains the 18 lautsi v. italy, no. 30814/06, §27, echr 2009. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 75 violation of the involved rights is, paradoxically, the particular vulnerability of the children before external interferences due to their youth19. against the arguments of the applicant, the italian government focuses its arguments on the assumed non-religious connotations of the crucifix, presented as a neutral symbol whose presence in classrooms does not involve any kind of action or interaction from the students. according to italian authorities, the crucifix is just a “passive symbol” with the same importance and entity than any other institutional or official icon because it represents secular values when regarded under the italian constitutional tradition. the firsts striking feature of this first judgement is the absence of any reference to the doctrine of the margin of appreciation, which had an important weight in previous rulings on states’ competences on education and its limits, especially when there is a possible transmission of moral values20. this difference from the previous doctrine is the main argument of the most critical authors (weiler 2010; parejo 2010), who consider that ignoring this, the court is imposing to the member states a particular type of relationship with the religious beliefs incompatible with the european constitutional diversity and the national particularities21. it is true that, until this judgement, the ecthr had given a very wide margin of discretion to the states in matters related to religious freedom, but this doctrine, in practice, has not been very useful as protection mechanism (solar 2011). one can question even if that margin of appreciation is not more than a formality designed to justify a completely arbitrary treatment on certain religious symbols (ronchi 2011). the principle the second section takes from the previous rulings and applies in this one is the prohibition of indoctrination as the limit for state decisions and policies in education22. the court’s previous doctrine clearly establishes the duty to refrain from imposing any religious value through the educative curricular contents. but this is not the only field of application for this principle. according to this judgement, the duty of neutrality imposes on the entire educative context as a whole, introducing expressly for the public educational environment some rules previously established on teachers23, and also on students24. in the court’s arguments underlies the idea of a public school as an inclusive space where all pupils and parents can be respected in their convictions beyond hypothetical impositions from ideological majorities. in words of mancini, 19 id. at §31. 20 kjeldsen, busk madsen and pedersen v. denmark, no. 5095/71; 5920/72; 5926/72, 7 december 1976, §53, series a no. 23; valsamis v. greece, no. 21787/93, §28, echr 1996-vi; dahlab v. switzerland (dec.), no. 42393/98, echr 2001-v; folgerø and others v. norway [gc], no. 15472/02, §84(g), echr 2007-iii; hasan and eylem zengin v. turkey, no. 1448/04, §51, echr 2007-xi. 21 in the opposite direction, mancini (2010, p.24) considers the judgement has indeed taken into account the italian domestic context, because “the case analyses the history of the mandatory display of the crucifix in state schools, in the context of the relationship between the italian state and the church, and cites all the relevant constitutional court case-law”. 22 hasan and eylem zengin v. turkey, no. 1448/04, §52, echr 2007-xi. 23 dahlab v. switzerland (dec.), no. 42393/98, echr 2001-v. 24 dogru v. france, no. 27058/05, 4 march 2009. daniel capodiferro cubero the age of human rights journal, 1 (2013) 76 (2010: p.25), this is an expression of the court’s “counter-majoritarian role (…) to correct some of the major deficiencies of majoritarian democracy”, which is especially important in education, where religious minorities are, in fact, in a vulnerable position in regard to a majority that configures the system according its moral values and patterns. the second section begins its ruling proclaiming the right of art.2 of protocol no.1 should be considered in relation to the right to private life and the freedom of thought and religion, as well as its applicability both in the public and the private school. thereafter, the court exposes the essential substantive argument of its reasoning: the duty for the state to create an “open school environment” where indoctrination is prohibited and where the different religious and philosophical options can have a place in order to allow that the pupils “can acquire knowledge about their respective thoughts and traditions” as the best way to ensure, in the first instance, the respect to the parents’ convictions25, or better said, those convictions the parents would transmit to their children within the framework of the educative pluralism that, according to the court, is recognized in the art.2 of protocol no.126. but when the judgement develops that duty of respect to personal convictions, as a manifestation of the negative freedom of thought and religion, it does it in reference to both the conscience of the parents and the conscience of the pupils individually and separately mentioned27. with this detail, the court is considering the children’s convictions are also an object of protection and a final purpose of the state duty of neutrality. so, the second section, at least in its approach and in part of the argumentative development, seems to take distance from the previous court doctrine that established the art.2 of the protocol no.1 is a special rule in relation to the generic freedom of thought and religion of art.9 echr and, under which, all controversies related to both articles should be solved only applying the first one28. nonetheless, the judgement conclusions show this distance is only apparent, but gives interesting details. this ruling has some explicit argumentative elements that are directly engaged with the art.9 echr, and show an approach to the matter that considers the freedom of thought and religion of the children as a relevant element, but less clear is if the court really considers it as a separate right from parents’ equivalent. in many occasions, the ruling shows how the children’s freedom of conscience is confused with the parents’ one and, even, is regarded completely dependent on the parental right of educative guidance. it seems that, for the second section, children’s freedom of belief is not an autonomous right, but a simple projection of the parent’s legal capacities. 25 lautsi v. italy, no. 30814/06, §47(c) and (d), echr 2009. 26 folgerø and others v. norway [gc], no. 15472/02, §84(b), echr 2007-iii; hasan and eylem zengin v. turkey, no. 1448/04, §47-55, echr 2007-xi; more explicit, appel-irrgang and others v. germany (dec.), no. 45216/07, echr 2009. 27 lautsi v. italy, no. 30814/06, §47(e), echr 2009. 28 specially, folgerø and others v. norway [gc], no. 15472/02, §84, echr 2007-iii. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 77 the freedom of thought and religion of the pupils appears in the ruling arguments when they refer to the particular vulnerability of their conscience. for example, the court estates as limit for the presence of the religious symbols its possible impact on the parental rights, but after it they have said that “the nature of the religious symbols and its impact on young pupils” should be considered29. it is also claimed that the religious symbols in the classrooms “may be emotionally disturbing for pupils of other religions or those who profess no religion” in a direct manner30, so it should be prohibited in order to protect the negative dimension of the freedom of thought and religion, directly attributed, apparently, to the pupils. finally, the main conclusion of the judgement is that the presence of religious symbols in the neutral educational environment can influence in the formation of children’s conscience, and that “restricts the right of parents to educate their children in conformity with their convictions” (art.2 of protocol no.1), but also “the right of schoolchildren to believe or not believe”31. this last statement should logically conclude in a breach of the art.9 echr regarding the children in addition to the infringement of art.2 of protocol no.1, but it does not. other premises also show a partial attention to the freedom of thought and religion of children as a different right at issue, and are those which reveal the presence of their best interest in the judgement. the first one is the importance given to the education in plurality, which is, after all, an instrument oriented to the correct development of the underage pupils’ personality; inasmuch it is a basic component of the education in freedom, the plurality benefits the children’s individual interest and supports the free formation of their ethics system against harmful interferences in a particularly vulnerable moment. in this way, the court prevents against the risks that a possible religious preference manifested by the state can suppose on children, who do not have full critical capacity32. it is impossible to know if, saying this, the members of the second section of the ecthr were thinking about the need to safeguard the free formation of the children’s conscience as an expression of their best interest, but their reasoning clearly fits in this approach. less evident is the position given to the underage pupils in the global context of the matter when the specific behavior of the state is analyzed and the ecthr concludes it is incompatible with the echr. at this point, the court mixes and confuses the children’s freedom with the parents’ right to educate them. it is not possible to say that the legal position of the children and their best interest are clearly the core elements in the case because the limit imposed to the “indoctrination” in the public education is the duty to respect the parents’ religious and philosophical beliefs. but it is obvious that these adults will not be exposed to the symbol as pupils will do; the measure of put a crucifix in a classroom will impact primarily on the children. if there is a transmission of religious values, it happens between the state and the pupils, and this circumstance is not desirable because may involve a decisive pressure on young minds without critical 29 lautsi v. italy, no. 30814/06, §48(d) and 50, echr 2009. 30 id. at §55. 31 id. at §57. 32 id. at, §48. daniel capodiferro cubero the age of human rights journal, 1 (2013) 78 capacity enough. it is true that the pupils’ beliefs have been previously oriented by the moral principles transmitted by their parents, but the impact on adults’ rights is just indirect. in these terms, the court is recognizing that, with the presence of the crucifix, the children are being the passive subjects of an inadmissible proselytizing action by the state, regardless of the concrete right violated by this, because it is performed on vulnerable minds. however, due to the negative charge of the word, the court does not employ the term “proselytism” in the ruling. it speaks about the interdiction of “activities of preaching” at school33, whose objective cannot be other than the proselytism. it also gives the idea of the enormous power as a transmitter of beliefs that a religious symbol placed in a classroom has in opinion of the court. in order to properly asses this question, it is necessary to deal with the debate about the “passive” or “active” force of religious symbols, which is one of the main argumentative lines of the great chamber ruling; thus, it will be analyzed in the following chapter. even so, in this moment it should be noted that this first judgement on the lautsi affair widely coincides with the decision, also from the second section of the court, in the case dahlab v. switzerland of 2009, expressly cited as an argumentative referent34. in this decision, the court ruled inadmissible the application of a teacher who was forced not to wear the islamic headscarf in class by the swiss education authorities. even though there were no complaints from pupil’s parents, the measure was considered rightful on account of “the potential interference with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents, and by the breach of the principle of denominational neutrality in schools” because school teachers are “both participants in the exercise of educational authority and representatives of the state” and, so, responsible for “the protection of the legitimate aim of ensuring the neutrality of the state education system against the freedom to manifest one’s religion”35. as public figures inside the educational environment, neutrality is a compulsory duty for the teachers, not only a rule for the public spaces organization. in the dahlab decision, the doctrine of the margin of appreciation was not an impediment to assess the merits of the case. according to the court, the headscarf, as a religious symbol, has a strong symbolic power, so, when displayed by a teacher, it could have a proselytizing effect on the pupils, with an impact which is hardly to measure because of the vulnerability of children due to their age. in these terms, the restriction of the teacher’s freedom of religion is an adequate measure to protect state neutrality and the children’s conscience because “appears difficult to reconcile the wearing of an islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils”36. 33 id. at §47(c). 34 id. at §54. 35 dahlab v. switzerland (dec.), no. 42393/98, §1.22, echr 2001-v. 36 id. at §1.24. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 79 this reasoning also underlies in the second section judgement on the lautsi affair. it is a very protectionist point of view to prevent any hypothetical undesired alteration in the pupil’s conscience, and its consequence is that any religious symbol should be forbidden in the classrooms even if there is not a reported violation of the freedom of religion. in dahlab, the court gives a critical importance to the neutrality in the public educational system because of its instrumental role in the free development of children’s conscience, and it legitimates any preventive limitative measure on fundamental rights. the final resolution of the lautsi ruling seems to be obvious when considering this doctrine, even more because this case has two particularities which reinforce the sense of this line of argument. the first one is a difference in the concrete religious symbol exposed before the pupils. for a child, who do not really know what islam is nor the meaning of its symbols, the headscarf can be interpreted as a simply garment without any religious value. however, the crucifix in a wall does not have any other possible sense than a religious symbol, as the great chamber itself recognizes in its further judgement37. if there are strong reasons to forbid in the public space a symbol that can easily have other interpretations that the religious one, at least for the pupils who will see it, there should be more to prohibit one whose sense is unambiguously religious. the second difference between the case facts is the “place” where the symbol is exposed, and the different legal position of each one. in dahlab, the restriction is imposed on a person, a subject of the freedom of religion; consequently, it constitutes a limitation on the exercise of a fundamental right. according to art.9.2 echr, this measure will only be lawful if it constitutes a necessary and proportional measure in a democratic society for the protection of pluralism, tolerance and the minorities38, in addition to meeting the criteria of the mentioned article, including the protection of the rights and freedoms of others. when the court legitimates the prohibition of wearing a headscarf because it is “necessary”, it is placing the objective of this measure beyond an individual fundamental right (in order to protect other rights), reinforcing its serious purpose. unlike individuals, as gibson (2010, p.212) says, “classrooms do not have human rights”. on the contrary, a classroom is a material element property of the state where neutrality and impartiality should be represented in benefit of all. when displaying a religious symbol in a public building, there is not any relevant element which can override the pupil’s (and parent’s also) rights in a weighting of interests. there are no “fundamental rights of the state” in front of them. thus, the prohibition of the religious symbol is even more justified than in the case of the teacher. in any case, once it is concluded that the religious symbol placed in the public space has a real capacity of influence, an unquestionable proposition for second section of the echr, the question is to know on what element worthy of protection does it. the people directly exposed to the symbol are the pupils, as they are the attendants in the classroom where the crucifix is and who can be indoctrinated due to their immaturity and the educational context where the influence is received. but, is the measure of 37 lautsi v. italy [gc], no. 30814/06, §66, echr 2011. 38 young, james and webster v. the united kingdom, 31 august 1981, §63, series a no. 44. daniel capodiferro cubero the age of human rights journal, 1 (2013) 80 avoiding the religious symbol really oriented to protect their particular, individual and separate interests? if the pupils are old enough to have their own private beliefs and the state tries to convert them to another faith, there is clearly a direct violation of their freedom of thought and religion but, what happens when they are not mature enough? it is true that, when the religious values introduced in the classroom do not correspond with the parents’ ones, it is possible to see an infringement of art.2 of protocol no.1, because the public authorities are educating children in ethics values that are different from parents’ desires when they are not authorized to do that. the court clearly agrees with this conclusion. but when the children are clearly immature and the values adopted by the public authorities are private ones which represent a concrete ethical point of view that does not correspond to the objectivity and plurality the education needs in order to train free citizens, there should be considered also a violation of their freedom of thought and religion, in addition to the parental right, as a consequence of a public policy contrary to their best interest. for this reason, the art.9 echr should not only be as a complementary guideline of art.2 of protocol no.1. it is also a directly applicable rule whose possible violation should also be explicitly taken into account as a possible limit to the indoctrination in public education, but the court did not categorically establish this. educative pluralism has a double objective: it serves the parents’ right to ensure their children will share their beliefs, but it should be also considered as an instrument to develop the children’s best interest itself. a pluralistic education, in a broad sense, allows pupils to know multiple options, different from the ethical values of their parents, in an objective manner, giving them a real option to choose with a high degree of freedom according to their evolution. but the court, at the end of the ruling, concludes that the presence of a crucifix in a classroom only violates the art.2 of protocol no.1, along with the freedom of thought and religion in the abstract. so, is it possible to conclude this judgement directly protects the rights of the children as a way to ensure their best interest? or the pupils’ freedom of thought and religion is only taken into account as a projection of the parents’ ones, which are exercised through the right to choose the religious and moral education of their children? the answer appears to be closer to the second option. in the previous rulings, particularly in the dahlab case, the court seems to have a special sensibility towards the specific interests of children that, in this judgement, finally dilutes in the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. the idea of the children’s best interest is implicit in the educative system’s defining criteria employed by the court; it takes into account some separate elements that define and reach that interest, but the concept itself does not appear in the ruling. for this reason, despite it is not ignored, the children’s best interest has not the desirable entity in the arguments employed. in fact, the court does not solve if the children are subjects of the freedom of thought and religion, and also fails to define the contents of this right when applied to pupils, or its relationship with the parental educational the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 81 capacities. it seems that, for the second section, the freedom of thought and religion of children is not an autonomous right, but not because of its relative dependence from parent’s beliefs. when the convictions of children are referred, they seem to be identified as the same as the parents ones, without any consideration of their autonomous character, even though indoctrination is prohibited because of its effects on the conscience “of the pupils”, not the parents. this is a questionable perspective, because it concludes that children’s convictions will be respectable and protected against proselytism only if they are the same than the parents’ beliefs, which are the object of the only right considered as vulnerable, the art.2 of protocol no.1. if pupils have a different faith than their parents it seems that a hypothetical public proselytism could be accepted inasmuch as those convictions have no fundamental protection. forgetting the interest of the children and the obvious circumstance that they are different people from their parents, the court shows a short perspective of the problem and, wrongly, focuses the benefits or the pluralist education only in the adults. in this sense, the judgment of the second section is very unambitious, losing a good opportunity to begin building a statute of the children as a subject of rights within the council of europe, and discarding arguments that would have been more difficult to refute for the great chamber. iv. the great chamber judgement iv.1. starting premises on march 2011, the great chamber of the ecthr ruled again on the lautsi affair because of the appeal of the italian government against the second section judgement. in the new procedure, decided by majority of 15 votes against 2, the court revokes the initial ruling to conclude that the presence of a crucifix in the classrooms of italian public schools does not violate the right of the parents to ensure the education of their children according to their own convictions in the terms of the art.2 of protocol no.1. the court also considers there are no questions that should be specifically analyzed under the art.9 echr, restricting the problem to the parental right as a special rule in relation to the freedom of thought and religion (of the adults)39. the great chamber even asserts there is no violation of the children’s parental right of educative guidance40, as if the pupils could be the active subjects of this right. this can give the idea of how confused are the judges about the real dimension and meaning of the involved rights. the consideration of art.2 of protocol no.1 as lex especialis was yet present in the foundations of the initial ruling on this case, but now this principle is applied more strictly. in the arguments of the second lautsi judgement, the hypothetical incidence of the religious symbol on the children’s negative freedom of religion has no place. the conduct of the italian state is always put in relation with the right to choose the moral 39 lautsi v. italy [gc], no. 30814/06, §59, echr 2011. 40 id. at §78. daniel capodiferro cubero the age of human rights journal, 1 (2013) 82 and religion values of the education of the children, and only the possible breach of this right in the educational environment is assessed41. this is the first mistake of the ruling, consequence of an inadequate doctrine of the ecthr. only the position and the rights of the parents are conceived, so the child’s freedom of thought and religion turns completely empty and his subjective capacity annulled. under this circumstance, it is very difficult to study the possible consequences of the arguments of the court in the configuration of children’s freedom of thought and religion, because this right is just simply not part of the ratio decidendi of the ruling. for the court, the only right with entity enough to be considered is the parents’ right to ensure such education and teaching of their children in conformity with their own religions and philosophical convictions, not even their freedom of conscience. the sum of the delimitation of legal positions and the argumentative development leads to a doctrine which converts the pupils in the weak object of the absolute right of their parents to define their convictions and, therefore, results incomplete. despite its omission, the particular freedom of thought and religion of the pupils and the need to safeguard their best interest, which is the main objective of the educative system, should be taken as assessment criteria of the court's arguments. they are the elements that allow finding out whether the doctrine developed is useful to protect them, directly or indirectly through the right of educational guide. aside from this, the great chamber judgement repeats two premises of the previous one, although its concrete application to the case is surprisingly different. first, it declares that state has the duty to adopt a neutral and impartial position in relation to the exercise of religious pluralism, where the right to not believe in any religion is also included42. consequently, the court considers that indoctrination and proselytism through education is forbidden, but only when it “might be considered as not respecting parents’ religious and philosophical convictions”, no matter the possible consequences on children’s best interest. the right of the parents, and only this one, is the limit to the, on the other hand, wide margin of appreciation the states enjoy to configure the educative sphere, which includes “all the functions” assumed in this field and not only the setting and planning of the curriculum43. on a separate issue, the great chamber expressly recognizes the essentially religious nature of the crucifix beyond any other possible lecture of its meaning44. however, the reasons given in developing this principle are not well justified. the consideration of the crucifix as a religious symbol contrasts with the absence of indoctrination capacity that the court attributes to it, turning over the reasons given by the second section without a real explanation. then, the great chamber appeals to the lack of a european consensus in the regulation of the interaction between public sphere 41 id. at §63. the references to art.2 of protocol no.1 as the sole judgement parameter can be found in §63-66 and 71. 42 id. at §60. 43 id. at §62-63. 44 id. at §66. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 83 and religion to justify an extension of the doctrine of the margin of appreciation beyond the limits previously imposed. iv.2. the appraisal about the intrinsic force of religious symbols for the great chamber, “there is no evidence before the court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed”45, so there is no breach of the right recognized in the art.2 of protocol no.1. even though pupils’ convictions are shortly mentioned, their subordination to the parental guide right reinforces the idea, which underlies also in the first judgement, that the children’s ideas and beliefs are only relevant when they are the same as the ideas of their parents, with no autonomous entity. the great chamber justifies the crucifix has not any indoctrinatory effect on pupils because it is a “passive symbol” 46, despite its obvious religious sense that clearly affects the state neutrality and impartiality47. this statement is particularly confusing because nobody explains what it means or where is the difference with an “active” symbol. in fact, the position of a symbol presiding a classroom and the educational activities converts it in an icon with a clear and significant presence, making it “active” (llamazares calzadilla 2005) no matter its concrete religious or secular character. however, the court simply asserts the harmlessness of the crucifix for the conscience of underage pupils and, additionally, its inability to counteract the parents influence on them because there are no evidences that it can do it. but, heretofore, the presumption was completely the opposite: except proof to the contrary, the mere presence of a religious symbol in a classroom was an indoctrination act. this is exactly the reason the court employs in dahlab to justify that the prohibition of wearing a headscarf imposed to a teacher does not breach the echr (arlettaz 2012). the main doctrine has changed from considering every religious symbol has a proselytizing effect to think that one in specific has not without giving any reason. this constitutes an unjustified change of criteria before two equal cases. it is very difficult to find a satisfactory explanation of this circumstance. the different age of children in each case does not seem relevant (ronchi 2011), because in dahlab the pupils were between the ages of 4 and 8, and in lautsi, between 8 and 12, a very close interval and a very similar possibility to be influenced at school. neither is logical to consider (zucca 2013) that a symbol on a wall is not strong because is not being referred by teachers, nor that only worn symbols can indoctrinate, because it ignores the direct impact consubstantial to every visual representation. precisely because of this effect, it is impossible to conclude that indoctrination can only be 45 id. at §66. 46 id. at §71-72. 47 as expressed by judges rozakis and vajić in their concurring opinion. however, they consider the negative impact on state neutrality does not constitute a transgression of the convention itself. daniel capodiferro cubero the age of human rights journal, 1 (2013) 84 materialized by the words, taking part in religious activities or through the nonobjective confessional instruction, as expressly the great chamber says 48. finally, giving a symbol a passive character because the values it represents are conceived as more respectable or are not unfriendly with the beliefs shared by the majority is, simply, a discriminatory argument incompatible with neutrality and pluralism. nonetheless, the court shows a tendency to overprotect the predominant religious confessions beyond neutrality (solar 2011) and, until the first lautsi ruling, “christian values have been defended even at the expense of trampling on fundamental individual freedoms, because the ecthr did not perceive them as conflicting with the core values of the convention system” (mancini 2010: p.23), so it cannot be ruled out this idea, as well as a possible purpose to correct the discordant second section judgement in the lautsi affair. the position adopted by the great chamber imposes “an incomparably weaker requirement to justify a limitation of the freedom of religion of the teacher than to justify the limitation of the state power”, which is not subject of rights (solar 2011: p.583). in fact, under these arguments, the state has a greater capacity to express a religious adhesion than a citizen when, paradoxically, it has a duty of neutrality that must be strictly observed in order to guarantee the correct configuration of the educational environment and the respect of the related rights49. the resulting doctrine says that the exhibition of a religious symbol by a person who plays a public educational role must be forbidden due to its proselytizing effects; however, when is a public institution itself who shows the symbol in its facilities, those effects are not conceived as possible, perhaps because of the false idea that a subject can have the intention to indoctrinate others while the state (or, better said, the people who manage the state) cannot. likewise, the court is establishing a modulation in the scope of art.9 echr according to the contents of the subjects’ convictions or beliefs. thus, under the topic “religious symbols in the public educational environment”, it is possible to find the following legitimated solutions: when a personal religious demonstration of a public servitor in the public space can have an impact on different religious convictions of other people, the first should be limited in order to protect these last (conclusions in the case dahlab). when a state adopts the principle of strict neutrality, private religious demonstrations can be limited in the public space as a mechanism to ensure that principle (case sahin). however, when the public authorities directly make a religious demonstration of a majoritarian faith and it collides with an individual belief which rejects every religious conviction, the result is that the limit should be imposed on the individual right to not believe (case lautsi), without taking into account the supposed neutrality or other disturbed values, as the children’s best interest. it is very difficult to make this conclusion compatible with a real and effective recognition of the freedom of 48lautsi v. italy [gc], no. 30814/06, §72 and 74, echr 2011. 49 dissenting opinion of judges malinverni and kalaydjieva, §6 and 8. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 85 thought and religion, which protects both the right to believe in a religion and the right to not believe in an equal manner. but apart from its discriminatory consequences, the undefined distinction between active and passive religious symbols introduced by the court is also inadequate because of the absolute terms it is presented. the reality of the situation is basically subjective; everything depends on the perception of the different subjects involved and the particular capacities of each one. if a religious symbol is active because can make a subject doubt about his convictions and thinking about replace them by those which the symbol represents, the critical capacity and the maturity of the subject plays an important role. there will be people more suggestible than other, so the power of the symbol will not be the same for everyone. for an adult, whose convictions are normally strong, the simply perception of a symbol from a different system of faiths rarely will have an indoctrinatory effect, so the symbol will always have a passive effect, no matter its location or size, notwithstanding the possible breach of his negative freedom of thought and religion or the principle of neutrality. on the opposite side, when the exposed to the symbol are underage children, as it is in the case, the proselytizing effect of the symbol should be assessed in accordance with their particular subjective circumstances, so the possibility of finding active symbols is higher. all of that considering that the mere presence of a religious symbol in the public space will probably not be compatible with the main principle of secularism. the court rejects this subjective approach to the matter and tries to put the capacity of influence of religious symbols in objective terms. according to the ruling, the subjective perception of the applicant “is not in itself sufficient” to establish a breach of art.2 of protocol no.150; the problem is the great chamber shares this conclusion after stating the connection of this right with the freedom of thought and religion, the most subjective of the fundamental rights which protects a reality the individual defines autonomously, and whose possible violations depend only on the perception of the subject (zuccca 2013). probably, the court focuses the problem on the art.2 of protocol no.1 in order to avoid considering a direct breach of the freedom of thought and religion of parents or children, situation which would have required a different final conclusion, as well as more coherent arguments. but even understanding that the only applicant’s right that can be violated in this situation is the right to choose the children’s religious and moral education, it does not prejudge nor determines the consequences of the presence of the crucifix on the pupils’ special subjective perception, circumstance which, itself, could constitute a problem under the perspective of art.9 echr. for an underage child, whose moral system is more permeable due to his immaturity, a concrete religious symbol, with no importance for an adult, can exercise pressure, making him thinking his convictions are not right because the meaning of that icon is no included in. this pressure will depend on the age and many other circumstances related to the intellectual development of each particular case, so it is 50lautsi v. italy [gc], no. 30814/06, §66, echr 2011. daniel capodiferro cubero the age of human rights journal, 1 (2013) 86 almost impossible to find an objective assessment rule. when the great chamber invokes the lack of power of the symbol in order to justify its presence in classrooms is formalizing an unrealistic standard; it misunderstands the subjective position of children and, as a consequence, tries to assess the power on indoctrination of the religious symbol from a perspective of full maturity which is not the situation of the target group of the possible proselytizing message. if the great chamber had not only adopted the perspective of the parents sieved through this particular concept of the human beliefs, its final conclusion in the ruling would have been the same than the second section. taking a realistic view, the pupils, as particularly vulnerable subjects integrated inside a concrete environment that is designed to educate them, need specific and particularly protective measures oriented to avoid any unlawful interference on their best interest and their freedom to develop their personality. the result of these measures should be a neutral and pluralistic environment where no particular beliefs have more visibility than others. the court itself recognizes that the crucifix represents unambiguously a particular system of thought, and when is placed in a prominent place, the faith it represents is occupying the main part of the educational space. additionally, it is difficult to conceive it as a neutral, cultural or innocuous symbol; therefore, it cannot be present in a neutral space as a representation of the state. iv.3.the inadequate application of the margin of appreciation doctrine the interpretation of the doctrine of the margin of appreciation that the great chamber sustains in the lautsi ruling is almost a consequence of the previous proposition. if the presence of a crucifix in a classroom placed by the public authorities has no entity enough to breach any fundamental right, due to his “passive” condition, the concrete regulation of this question is not important from the perspective of the echr. consequently, there is no problem for the states to regulate it however they want because its only hypothetical limit, the prohibition of indoctrination, is not applicable. the court justifies the employment of the margin of appreciation doctrine by a lack of european consensus on this particular issue51. this is a very recurrent statement when the ecthr faces possible violations of the freedom of thought and religion, which are always analyzed from a conservative point of view (mancini 2010). but in the particular case of religious interferences on the educational environment, the court’s assertion does not correspond exactly to the reality. it is true there is no european consensus on the specific regulations about the presence of religious symbols at schools if considering the different education legislations in detail. there is no consensus either on the different models of relationship between the states and the religious faiths, but this is a question that should 51 id. at §70. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 87 have not been introduced within the merits of the case because it is a political question at the end, not a human right’s problem. however, it is possible to identify a european common standard: the respect to the negative religious freedom of the individuals (barrero 2012), no matter the concrete position of the state with regard to the religion; this principle is a positive obligation to public authorities that would modulate the margin of appreciation52. the protection of the children’s freedom of religion can be identified as a part of this duty because it is a purpose that, in the abstract, no democratic state will reject either as a target itself or as a projection of the parents’ freedoms. likewise, the prohibition of discrimination (the purpose of educational neutrality) is also a common accepted principle. if the court had taken into account these factors, the breadth given to the margin of appreciation of the states in the question should have been drastically reduced. but in this case, the great chamber shows great respect for the states and little for the perspective of the parents (zucca 2013), apart from no consideration for children. although there is no consensus on the specific regulatory terms of the private convictions in the public space, it is possible to find it regarding the objectives which must be respected. and this is a case about a breach of a fundamental objective: the compulsory respect to fundamental rights regardless the specific profits a state decides to give to a concrete religious faith. for this, it is false that the court cannot assess the merits of the case. it can do it and it must do it because the question is directly related to the echr. the solution adopted by the great chamber leaves the children’s freedom of thought and religion unprotected against unlawful interferences. it renounces to impose any kind of control on hypothetical ideological pressures exerted on pupils belonging to minority groups, who are also unarmed against the influence of the majority due to their immaturity. in its previous doctrine, the court asserted that “in countries where the great majority of the population owe allegiance to one particular religion, manifestation of the observances and symbols of that religion, without restriction as to place and manner, may constitute pressure on students who do not practice that religion or those who adhere to another religion”53, and the principle of secularism forbids it54. this is the conclusion when the analyzed environment is the university, where students are mature, so it is reasonable to believe that if the pupils are 8 or 12 years old the potential pressure could be higher and restrictive measures on expression of private beliefs are more justified; in fact, these measures are even necessary in order to ensure educational pluralism. the doctrine of the margin of appreciation worked well as mechanism to protect the convictions and the freedom of thought and religion only of the majority (mancini 2010), and the second lautsi ruling reinforces this role. its conclusions give the states full power to incorporate into the public space (the classroom) symbolic elements that 52 as expressed in the dissenting opinion of judges malinverni and kalaydjeva to the lautsi great chamber judgement. 53 karaduman v. turkey, decision of 3 may 1993, §50, unreported. 54 leyla şahin v. turkey [gc], no. 4474/98, §116, echr 2005-xi. daniel capodiferro cubero the age of human rights journal, 1 (2013) 88 most pupils recognizes but some of them do not, protecting the best interest of the majority but not the minority’s one. the court is legitimating the employment of mechanisms oriented to the cultural homogenization of the society through the education, which is clearly a perversion of its principal purpose at the service of children’s best interest. the main practical consequences of the wide capacity given to the states is that only those parents and pupils belonging to the dominant ideology or faith will enjoy the freedom of thought and religion, in contrast to the unjustified restriction imposed to everybody else. according to the logic employed by the court, the right of being respected by the state in the religious field recognized in art.9 echr will only operate if there is a majority agreement saying the concrete impugned practice breaches this right (ronchi 2011). on the other hand, if the breach of the freedom of conscience is obvious but the majority accepts it because only a minority is affected, it will never be considered a violation of art.9 echr. it is obvious the majority will never consider their practices or symbols as a distortion of a right, regardless who can be affected because the solidarity is not always present. fundamental rights are universal protective instruments which play a special role against majority abuses; therefore, a doctrine like this has no sense because, in practice, it implies the inefficacy of the convention. in order to facilitate the free development of the pupils in their own ideas taking into account the parents’ ones, the public educational system must show a strict neutrality. this means the state cannot be the messenger of ethical values or symbols that are not unanimously accepted, because it converts the public (common) space in the private space of the majority, which will not be perceived as theirs by the minorities. without symbolic neutrality, those children who do not identify their beliefs with the religious icons the state supports in the name of the majority will feel they are different; consequently, they might be tempted to adopt the majority convictions in order to be accepted by the group. in fact, it is possible to understand that, when the public authorities put a religious symbol dominating a classroom, they are sending to the pupils the message that they should accept the beliefs it represents if they want to be like the others. with this attitude, the state is offering children a “social advantage”, their full social integration, if they abandon their atheists, agnostic or different religious faith and accept the majority convictions. this is exactly what the ecthr defined time ago as “improper proselytism”55, which can rightfully be limited by states without violating the art.9 echr. against this great capacity given to the states to condition the children’s moral values, the parent’s capacity of instilling different values might be overcome. as aggravating factor of this case, the proselytizing conduct is not implemented by a person, who could develop it as a part of his religious freedom, but by the italian state, which should respect neutrality because its constitution embodies the fundamental principle of secularism. on the contrary, the arguments of the italian 55 kokkinakis v. greece, 25 may 1993, §48, series a no.260-a; larissis and others v. greece, 24 february 1998, §45, reports 1998-i. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 89 government’s appeal before the great chamber proclaim some kind of “sociological confesionalism” as a duty to give a preferential treatment and visibility to me majority religion in the public spaces despite it is not the official faith of the state; after this, the government does not hesitate to put it ahead to the validity of the fundamental rights using as an excuse the concept of “national particularity” 56. the italian authorities are disregarding the principle of secularism and causing a constitutional mutation which modifies the content of the principle of secularism into a duty of submission to a concrete religion. under these circumstances, the public sphere is no more the place of all citizens to become only the place of the majority, who merely tolerates the existence of other ethics options and considers the public spaces are the natural place to promote a concrete ideology beyond the fundamental rights. according to the conclusions of the great chamber, the majority can also place the dominant faith promotion before the specific needs of a vulnerable group, the underage children, whose best interest has no consideration if it does not match the dominant religion’s ideas. against these dangerous consequences, the answer given by the ecthr is the acceptance of the italian government’s arguments, no matter the consequences57. with the assumption of the idea that majority convictions and symbols, which are not unanimous, can have a preferential place in the public space, the great chamber revokes a judgement that was “an important step forward in taking minority rights seriously, even when this requires a rethinking of traditional domestic equilibria” based on the european religious homogeneity (mancini 2010: p. 26). the result is a timorous doctrine that results completely useless as mechanism of protection of children’s fundamental rights. v. conclusions the great chamber judgement revoking the first instance court decision in the lautsi affair is a step backward in the ecthr doctrine. the excessive scope it gives to the national margin of appreciation and the better consideration of a concrete belief system against others it develops in its arguments are very questionable arguments, but, above these reasons and in a veiled form, the judgement declares the renouncement of the court to protect the freedom of thought and religion of children in a concrete manner. indeed, the great chamber opts in favor of other principles before their best interest, ruling on a question about underage children without speaking about children’s interests and rights. neither of the two court rulings in this case incorporates specifically in their premises or values the principle of children’s best interest, but the first ruling shows a partial and instrumental approach to it. in its arguments, the second section analyses the possible direct infringement of the pupils’ freedom of thought and religion, and this is linked with the need of a neutral and impartial educative environment, which is one of the essential instruments for achieving children’s free personal development and, 56 lautsi v. italy [gc], no. 30814/06, §36-37, echr 2011. 57 id. at §71. daniel capodiferro cubero the age of human rights journal, 1 (2013) 90 consequentially, to benefit their best interest as a result of the education in real freedom. but in the conclusion of the judgment, the second section only considers a violation of the art.2 of protocol no.1 (the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions), so it is not possible to say children’s rights are a real focus of attention for the court themselves. the final result of the argumentative development spoils the content of the ideas exposed by reducing the final conclusion to a problem of parent’s rights strictly. the court is suggesting the pupil’s freedom of conscience is only a direct projection of parent’s one with no individual entity, which is to say that children’s right should not be protected by themselves, but only as an object of parental authority. this conclusion is much more visible in the great chamber judgement, whose arguments contain almost no references to children’s legal position in the case. in fact, the second section shows a particular perspective in its rulings about religions symbols (cases dahlab and lautsi) that the great chamber does not share now, but apparently previously did (case sahin). if the first ruling is not perfect, it contains, at least, a transversal consideration of the subjective position of children and appoints mechanisms that, de facto, impact positively in the protection and the promotion of their best interest in application of an, apparently consolidated, doctrine about the neutrality of public educative spaces. the final lautsi judgement, on the other hand, seems to be more oriented to give a politically correct solution and to not spite catholic stakeholders than to address the real doubt: if a religious symbol has any kind of proselytizing effect on young children and if this is acceptable regarding the compulsory protection of their best interest. the second ruling reveals an incomplete and reductionist approximation to the problematic question, thinking the problem is limited to the impact of a potential “official” indoctrination of pupils on parent’s right to choose their moral and religious education in a secularist system. this approach ignores the most vulnerable element, the child, who is the primary target of educative public policies and decisions. and this is, at the end, a controversy about the freedom of thought and religion framed by the particular characteristics, needs and subjects of the educational context. when reading the great chamber judgement, it is obvious the pupils’ subjectivity does not deserve the attention of the court. it does not hesitate to change radically the opinion about a measure which directly concerns children without justifying or explaining how the new position adopted benefits or encourages their best interest or rights. the court is strictly applying a previous doctrine that says the art.2 of protocol no.1 is lex specialis in relation to art.9 of the echr, and this circumstance is true, but only under the perspective of the parents regarding the state obligation to respect the parental guide right. this doctrine should not be considered as a correct approach to the problem of the presence of religious symbols in the public educative space because it forgets the implications on the freedom of thought and religion of children itself, which is a different right than parents one. the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 91 the freedom to choose the religious and moral education of the own children has two main readings. as a right to shape the children’s conscience according to the own convictions, determining its contents without any margin of freedom for the child, or as an instrumental right, consequence of the freedom of conscience, but basically recognized to serve to the correct and free formation of children’s conscience. the most rights-based interpretation is the second one, because the limitations on the children’s rights are only consequence of their lack of adulthood, and any measure oriented to substitute their autonomy may be only justified as a way to reach it in the future. when the court subsumes the pupils’ freedom of conscience under the art.2 of protocol no.1 is, in essence, recognizing their parents a full capacity to determine from outside which are the children’s interests, because they do not have any right to be educated in freedom (or, at least, the court does not consider it). the great chamber incomprehension of the meaning and objectives of the fundamental rights systems when applied to the children also influences in the conclusion, especially when it says that it is a question that falls into the margin of appreciation of the states. under this point of view, the court is converting a matter of rights in an issue about the systems of relationship between the states and the religious faith, creating an artificial problem and, later, trying to elude it. but the most important, it is renouncing to protect a concrete right, the freedom of thought and religion, allowing the public authorities to adopt any measure they consider appropriate according to their own circumstances or the balance of internal powers. this circumstance has two critical consequences on the configuration of the protection of freedom of thought and religion, especially for the children. the first one is that, according to the great chamber doctrine, a state can decide everything it wants about the presence of private ethics symbols in the public space, no matter if it disturbs anyone’s conscience or the possible breach of the duty to protect the children’s best interest through a neutral educational system oriented to create free citizens. the second consequence is that, under these principles, the majority symbols are legitimated to be imposed, overriding any strange, different or minority belief. in addition, the court accepts a state can freely act as an instrument of this purpose instead of respecting the plurality, employing the educational system as a mechanism to publicize religious icons that might orientate the young generations to these convictions. adults can, more or less, defend themselves against this interference, but the more suggestible children probably cannot. when education becomes an indoctrination system, circumstance that is not a problem for the great chamber, the children’s best interest is annulled by the particular interests of the majority and, consequently, the free development of their personality is not guaranteed. the promotion of a concrete ideology, if it is majoritarian, seems to be more important for the court than the education in freedom. under this proposition, the state can rightfully employ the education to promote the cultural homogenization of its population with no limits, and this behavior will not violate the freedom of conscience, even if it is clearly contrary to the pluralism that a democratic society needs to be considered as such. daniel capodiferro cubero the age of human rights journal, 1 (2013) 92 the only interest of the great chamber building its argumentation is to conclude there is not proselytism in the exposition of a christian symbol in the public space because this kind of icons cannot transmit any message, when this is, precisely, its natural function. for this purpose, the court has no problem to employ an equivocal concept of “secularism”, assimilating it to a rejection of any religious conviction (as the judge power does in his concurring opinion) when the real meaning of the concept is neutrality. in the same way, it seems to be very concerned to avoid any concession to subjectivity, constantly seeking in its judgement objective reasons to cover up a suspicious approach. the first lautsi judgement gave diffident principles for building a concept of children’s best interest with european scope, particularly in the educative environment, but the second one not only contains nothing relevant, but it complicates this task. the great chamber ruling also leaves in the vagueness the content and position of children’s rights in the european system. finally, it changes the previous doctrine about religious symbols at school, based in the need for neutrality, without giving any substantive argument, which is not very correct under the point of view of the legal argumentation and makes almost impossible to integrate all the ecthr judgments about religious symbols at school in a consistent doctrine. if the final solution is that every state can adopt the measures it considers without any restriction and individual rights cannot operate as a limit when the margin of appreciation is invoked, the only thing people can reasonably do is to ask what the ecthr is for. at the end, the impression is that if the exposed symbol had belonged to any other religion different to christianity, the conclusion would have been different in the interest of neutrality and pluralism. in any case, the court has lost a good opportunity to take the children’s rights seriously. bibliography arletazz, f. (2012). las sentencias lautsi en el contexto de la jurisprudencia del tribunal europeo de derechos humanos. redur, 10, pp. 27-44. asensio sánchez m.a. (2006). la patria potestad y la libertad de conciencia del menor. madrid: tecnos. barrero ortega, a. (2012). el caso lautsi: la cara y la cruz. revista española de derecho constitucional, 94, pp. 379-409. cañamares arribas, s. (2010). símbolos religiosos en un estado democrático y plural. revista de estudios jurídicos, 10, pp. 1-19. galinsoga jordá, a. (2002). significado y alcance de la convención de las naciones unidas sobre los derechos del niño en el sistema de protección internacional de the position of children’s freedom of thought and religion in the rulings of the european court of human rights on the case lautsi v. italy the age of human rights journal, 1 (2013) 93 los derechos humanos. los derechos del niño. madrid: ministerio de trabajo y asuntos sociales, pp. 161-182. gibson, n. (2010). right to education in conformity with philosophical convictions: lautsi v italy. european human rights law review, 2, pp. 208-212. joyal, r. (1991). la notion d’intérêt supérieur de l’enfant. sa place dans la convention des nations unies sur le droit de l’enfant. revue internationale de droit penal, 62 (3-4), pp. 785-791. llamazares calzadilla, m.c. (2005). “símbolos religiosos y administración pública: el problema en las aulas de centros públicos docentes”. in: llamazares fernández, d. (ed.), libertad de conciencia y laicidad en las instituciones y servicios públicos. madrid: dykinson, pp. 277-300. llamazares fernández, d. (2002). derecho de la libertad de conciencia i. libertad de conciencia y laicidad (2nd ed.). madrid: civitas. mancini, s. (2010). the crucifix rage: supranational constitutionalism bumps against the counter-majoritarian difficulty. european constitutional law review, 6, pp. 6-27. parejo guzmán, m.j. (2010). reflexiones sobre el asunto lautsi y la jurisprudencia del tedh sobre símbolos religiosos: hacia soluciones de carácter inclusivo en el orden público europeo. revista de derecho comunitario europeo, 37, pp. 865896. puente alcubilla, v. (2001). minoría de edad, religión y derecho. madrid: ministerio de trabajo y asuntos sociales. ronchi, p. (2011). crucifixes, margin of appreciation and consensus: the grand chamber ruling in lautsi v italy. ecclesiastical law journal, 13, pp. 287-297. solar cayón, j.i. (2011). lautsi contra italia: sobre la libertad religiosa y los deberes de neutralidad e imparcialidad del estado. cuadernos electrónicos de filosofía del derecho, 23, pp. 566-586. suárez pertierra, g. (2005). la laicidad en la constitución española. persona y derecho, 53, pp. 157-181. valero heredia, a. (2009). la libertad de conciencia del menor de edad desde una perspectiva constitucional. madrid: cepc. weiler, j.h.h. (2010). lautsi: crucifix in the classroom redux. european journal of international law, 21(1), pp. 1-6. zucca, l. (2013). lautsi: a commentary on a decision by the ecthr grand chamber. international journal of constitutional law, 11 (1), pp. 218-229. ten guidelines for the correct interpretation 25 the age of human rights journal, 1 (2013) ten guidelines for the correct interpretation of rights rafael de asís roig 1 abstract: in this brief work i will propose ten guidelines or criteria to assist in interpreting human and fundamental rights norms in a way that is correct (as much as is reasonable) and that is in line with the perspective of the constitutional court. to do so, i will work from a series of premises to help locate these guidelines within the context of a theory of interpretation. as might be expected, this theory is itself based on a theory of law. in what follows, i will provide an account of some of the characteristic dimensions of the interpretation of rights norms. finally i will present the ten guidelines that in fact constitute what i have elsewhere termed as main criteria of interpretation. keywords: human rights, fundamental rights, criteria of interpretation, theory of law contents: i. on legal interpretation; ii. on the interpretation of rights; iii. on the correct interpretation of rights by the judge. i. on legal interpretation there are different concepts regarding the role of interpretation in the legal area and these are normally associated with a similarly different way of understanding the interpretative activity itself (which is based on concepts of law and regulations and, therefore, on the theory of law) (barranco avilés 2009: pp. 141ff; pérez de la fuente 2010: pp. 141ff). i will thus regard the law as being, among other things, a system made up of normative statements whose use requires a choice to be made as to their possible meaning. as such, the position i adopt is somewhat closer to the so-called skeptic concept of interpretation (in which interpretative activity consists of attributing meaning to the norm and is thus not considered a ‘scientific activity’) as opposed to the cognitive concept of interpretation (in which interpretative activity consists of discovering the meaning of the norm and is thus considered “scientific”) (guastini 2001: pp. 13ff). so, the position adopted in this paper might be described as an intermediate concept according to such a perspective, all legal disagreement arising within the legal system is of an interpretative nature. the same applies to any action that purports to have legal value. 1 professor of philosophy of law (instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain) rafael de asís roig 26 the age of human rights journal, 1 (2013) every judicial process thus expresses a conflict between at least two parties who argue over the norms to be applied and the meaning of these norms. within a legal context, the resolution of this dispute must be based upon a norm (understood in a broad sense of the word) and is expressed via a decision that chooses the norms to be applied and the meaning of these norms. it certainly may be said that this way of describing a legal disagreement, which is manifested via a process, is insufficient because at times interpretation does not need to opt for a meaning of the norms but to create a statement that allows the dispute to be resolved. in some cases, there are no norms in existence which might directly resolve the legal problem under consideration and it is necessary to create a statement (which is justified via argumentative means) (atienza 1991: pp. 140ff)2. while these cases reveal regulatory gaps, they also show that the norm which is created gains justification when it is presented as an option that does not contradict the meaning of pre-existing norms. as such, it is an action which may take place within the framework of interpretation. the legislator’s actions are also a demonstration of an interpretative option that is based upon (and justified by) statements that are part of the legal system. the same might be said with respect to the task of lawyers, doctrine or any other legal actor. the above contains two implications. on the one hand, that interpretation (lumia 1966: p. 309) is always present when working with norms and, on the other that interpretation is an activity whose scope goes beyond that of judicial application. in contrast with those concepts of interpretation which hold that this activity only occurs when the norm is not clear (which brings to mind the classical aphorism “in claris non fit interpretatio”), i shall argue here that interpretation is always present when working with norms, given that the latter are linguistic statements which have a relative amount of indeterminacy3. this likewise means that in the legal field, except for highly unusual cases, there is always a certain degree of discretion involved in the activity of interpretation. it also means that the interpretation of a norm is always an act of decision. the justification for this act of decision is made via the use of the so-called interpretative criteria. in general terms, these criteria follow along the lines of five main categories: literal, historical, teleological, systematic and sociological (de asís 1995: pp. 186ff). despite the fact that there is no established hierarchy which might order these criteria according to importance (except in specific areas of law), we may still emphasize the relevance of literal and systematic categories in general juridical interpretation (de asís 1998: p. 134). on the other hand, interpretation is not only present in the application of norms and (as previously indicated) its effects thus go beyond the scope of the judicial 2the controversy may thus be resolved either via the use of a norm whose meaning is specified or either through the creation of a norm, which is justified via the meaning of other norms. 3 the existence of clarity requires an interpretation of the norm. ten guidelines for the correct interpretation of rights the age of human rights journal, 1 (2013) 27 process. just as interpretation is present in the creation of norms, it is also present in scientific analysis or in the field of normative-juridical philosophy. as i also emphasized beforehand, the activity of legal actors (when this term is understood in its broadest sense and which includes law users) might be therefore described as an interpretative activity. legal interpretation is thus going to be conditioned, among many other factors, by the nature of the interpreter and the type of statement used. in relation to the first of these factors, general reference might be made to two main categories of interpreters of the law. on the one hand, there are those whose defence of an interest at stake determines their interpretative activity; and on the other there are those who are characterized by the lack of an interest at stake and who we usually identify through the idea of impartiality. although not exhaustive in theoretical terms, the first of these categories would include citizens, legislators or philosophicaljuridical doctrines, while among the second would include judges or scientific doctrines. admittedly this second group of actors might also be described in terms of an interest at stake, even though such interest does have an objective dimension which is represented by a supposedly objective idea of law. with respect to the second category, legal interpretation is conditioned by the determinate or indeterminate character of the statement that is interpreted (del real alcalá 2011: pp. 52ff). traditionally we represent this difference in terms of the distinction between laws of principle and regulatory laws; a distinction that has consequences with respect to the discretionary nature of legal interpretation (there is less discretion in the interpretation of a regulatory law than there is in that of a law of principle) (barranco avilés 2009: pp. 31ff). yet following along these same lines, interpretation is also conditioned by the hierarchical situation of the law within the legislation. it may thus be said that the interpretation of every statement is conditioned by the meaning of superior legal norms. ii. on the interpretation of rights thus, if we refer to the interpretation of rights norms (human and fundamental) and we examine the type of statements in which these are normally recognized, it may be asserted that these are norms of principle that sit at the highest point in the hierarchy of the legal system. the interpretation of rights is thus considered to be a special interpretative activity4. in part, the particular nature of the interpretation of rights resides in its relatively indeterminate character and the fact that there are no superior norms that may act as reference for meaning (other causes of this particular nature include the clause of essential content or that which stipulates openness to international law) (cuenca gómez 2012). thus, on the one hand, there is a greater degree of interpretative discretion related to these types of norms than there is with other norms in the legal system. on the 4for further clarification of this point see barranco avilés (2004) pp. 19ff. rafael de asís roig 28 the age of human rights journal, 1 (2013) other hand, the decision regarding their meaning implies the adoption of a stance that can only be understood as the expression of a particular position on the theory of rights (it is impossible to conceive of a strictly legal theory unless a theory of law is used that incorporates the moral and/or the political within the concept of law) (dorado porras 2004: pp. 21ff). the above requires two explanations that may be understood in two different contexts. the first of these consists of accepting the possibility that there are different ways of thinking about rights and that there are thus different theories on rights. the second defends the idea that there cannot be total indeterminacy, despite the fact that norms concerning rights are characterized by a high level of indeterminacy (cuenca gómez 2008-2009: pp. 208ff). i do not believe that the first of these explanations requires a great amount of argumentative effort. it should be enough to remember how accustomed we are to seeing how, when appealing to rights, the same fact may be rejected by some and accepted by others (in fact all constitutional control of the norm based on rights might be described thus). the second of these explanations derives from the concept of law itself based on the idea of system, one that requires that there be some minimum content which acts to establish its own recognition and so at least functions to limit interpretative options (and as such, as a minimum, as a negative content in the sense that it establishes what the right cannot mean) (ansuátegui roig 2006: pp. 601ff). a defence of this thesis might also point to the fact that language is not completely indeterminate (cuenca gómez 2008); a defence of total indetermination would mean that the particular rights norm itself would have no reason to exist (it being open to any interpretation so desired) (ruiz ruiz 2011: pp. 187ff). it may be possible to object to the aforementioned on the grounds that law is not governed by norms of rights but by norms of competence (yet this position needs to show, at the risk of being misunderstood, that these types of norms have been in fact determined). similarly, it might also be claimed that law is based solely and exclusively on power and force (a claim which is not likely to provide an account of how to act within the law). certainly the second explanation is based on theoretical arguments and on how arguments are conducted within the law. despite this, it runs into serious problems when we consider the question of the validity of the interpretative decision. indeed, the issue of the actual validity of the interpretation of a norm of rights can only be concretely resolved by referring to the competence of the body adopting that decision (jiménez cano 2008: pp. 232ff). thus, any questions as to the validity of a constitutional court´s interpretative decision on rights are ultimately answered in terms of competence. this means that the court would be able to express any decision (except for when we speak of constitutional decisions which are unconstitutional, which again means applying a theory, in this case a theory regarding rights whose potential would ten guidelines for the correct interpretation of rights the age of human rights journal, 1 (2013) 29 have to be demonstrated without recourse to arguments based on competence).why it is that constitutional courts normally satisfy the range of community expectations, though they sometimes adopt decisions that might be considered to be unsatisfactory, is something that has to do with the ethics of the constitutional judge. in any case, the aforesaid assumes that there is a need to differentiate between valid and correct interpretative decisions (de asís 1999). as i pointed out previously, the issue of the validity of interpretation may be resolved from the perspective of competence; in an interpretative conflict, the option defended by the competent body will prevail. however, as i have also previously pointed out, it is necessary to set some limits –even if they are regulative– upon the performance of the competent body (this is because it is possible that when this body acts as the last recourse, it may contradict commonly accepted meaning). the problem is how to guarantee that these minimum contents will be respected or how to guarantee these limits. and regarding this particular issue it is not possible to use legal techniques but rather it is necessary to resort to ethical types of considerations (in order to function correctly, all legislation requires a moral perspective be adopted). valid interpretation does not thus have to coincide with the correct interpretation. in this last instance, interpretation is based on criteria of correction that are not necessarily of a legal nature. to put it another way, legal correction of a decision has to do with its validity but the idea of correction has other references, such as ethics, politics or even rationality. indeed, as is also the case when we speak of general legal interpretation, these criteria may differ according to the interpreter. so, we may think that a lawyer´s defence of a correction of an interpretative option will be different from a correction defended by a judge or by scientific doctrine. this would be the case whenever the lawyer’s interpretation is subordinate to the defence of the client’s interest, while the judge’s interpretation is, of necessity, impartial. it is worth examining this point in two ways. firstly, it is very clear that, although we might be able to speak of different interpretative criteria, all legal actors seek to persuade. this reduces the distance that separates the correct interpretations issued by different legal operators and allows us to consider the possibility of there being a correction criteria in common (which is not necessarily exhaustive of all aspects of the idea of correction). the second consideration has to do with the ethical and political nature of interpretation of rights norms and how this nature makes it difficult to conceive of complete impartiality, even when discussing judges. the interpretative decision regarding rights that these legal actors take is also an adopted position (although perhaps this position is, or should be, much more disinterested than that of the other actors). i will conclude this point on the interpretation of norms concerning rights by pointing out that in the field of law there are some traditional criteria of interpretation which, given their special nature, have very limited influence while there are others that, on the contrary, are even more relevant (de asís 2005: pp. 141ff). among those of limited influence are literal criteria (in light of the indetermination of these rulings) and rafael de asís roig 30 the age of human rights journal, 1 (2013) systematic criteria (given the hierarchical situation of rights norms); these are the same criteria, it will be recalled, that i emphasized when referring to general legal interpretation. among those of greater relevance are historical, theological and sociological criteria, to which we must add what are surely examples par excellence of criteria concerning rights; that of proportionality (bernal pulido 2003) (which implies a deliberation) and the consequentialist (ezquiaga 1987: p. 276). iii. on the correct interpretation of rights by the judge in the following, i will point out certain criteria of interpretative correction by making reference to the judge as a legal actor. notwithstanding, many of these criteria may be extrapolated to other actors. as we have indicated in the previous points, there is no unique meaning in human or fundamental rights norms and it is extremely difficult to demonstrate the existence of absolute impartiality. that being the case, if the approach toward the interpretative correction of these rules is to have general effect, it cannot refer to questions of content. such questions may only form part of a theory of interpretative correction which is grounded in a theory of rights that allows its contents to be identified. the criteria of correction that i am going to examine are abstract and general and, what is more, of a more procedural nature and do not thus help us to define any possible specific meaning.. that said, i will now propose ten criteria of correction that should act as a reference for judges to follow when interpreting norms concerning rights. the first main criterion, which i describe as that of impartiality and which has to do with the guarantee of this principle, acts to protect judges’ interpretative decisions from any contamination that their own ideology promotes and which might influence the resolution of a case. basically, this criterion is manifested via use of the mechanism of abstention. an adequate use of this instrument would resolve truly curious situations in the legal legislation, protecting both the judge and the citizens. it is certainly the case that we are not dealing with an ethical instrument but rather a legal instrument. indeed, this means to affirm that all judges who consider themselves influenced by any type of circumstance during the interpretation of a norm have the moral obligation to consider abstention and to thus protect the law, citizens and lastly, their own conscience (de asís 1993: pp. 57ff). the second criterion might be described as one of coherence and consistency. under this criterion, the correct interpretation of a norm concerning rights must be able to occupy a coherent position within the framework of a theory of rights (which implies that its effect upon other rights must also be analysed). as i have already repeatedly indicated, the content of the interpretative decision on norms regarding rights expresses an adopted position that, as such, must be coherent with the theory of rights that it defends. ten guidelines for the correct interpretation of rights the age of human rights journal, 1 (2013) 31 a third criterion, which i shall call ‘explicitation’, has to do with the compliance of the constitutional requirement to motivate decisions. in the interpretative field, this criterion also means that the interpretative criteria used should be shown or should act to explain the decision. as pointed out when referring to interpretation of rights, these will be conducted along the lines of one of the following criteria: historical, theological, sociological, proportionality and consequentialist. a fourth criterion, that of respecting language has to do with the existence of limits in interpretative discretion and which derive from the limits of language. according to this criterion, the judge must respect the natural meaning of the statement, by this it being understood whatever corresponds to the meaning of the terms in the language that law is expressed. this demand might be considered useless if, as i have indicated, rights norms are characterized by their indetermination and if, within this interpretation, the literal criteria (which is directly related to what i have described as natural language) lacks force. be that as it may, this criterion of correction obliges the judge to very carefully analyse the degree of indeterminacy in the norm concerning rights given that this degree is not identical in every norm (thus, for example, the degree of indeterminacy in norms that express individual rights is greater than in other norms that recognize economic, social and cultural rights) (de asís 2010: pp. 63ff). a fifth criterion, of saturation (alexy 1989: p. 236), implies that the greatest possible number of criterion and technical arguments should be used upon reaching an interpretative decision. as such, the decision to be taken should be that which is based on the greatest number of interpretative criteria. the sixth of these criteria, that of deliberation and consequences, derives from the relevance of the two criteria that i indicated when referring to interpretation of rights norms. the first of these requires that the interpretation deliberate over the allocation of other goods and rights without this implying any loss to the right in question; the second requires that the consequences of this interpretative choice be tended to in all areas that they may occur. this means that there are two criteria that must always be taken into account when conducting a correct interpretation of rights norms. more specifically, these criteria require that the interpretative decision: (i) pursue a goal which is coherent with the theory of rights; (ii) is the most appropriate decision to achieve the said goal (which means considering other options); (iii) acts to reduce as little as possible the maximum content that may be attributed to the right; (iv) acts to produce more advantages than disadvantages within a framework of a theory of rights. the seventh of the criteria is one of non-refutation5 which clearly and simply requires that the propriety and solvency of the interpretative criteria used be justified. in this sense, the criterion is respected when used correctly and when its strength is examined in each case. thus for example, as we have already indicated, it is possible 5 see in the context of fact-based sentencing gascón abellán (1999) p. 220. rafael de asís roig 32 the age of human rights journal, 1 (2013) that not all criteria have the same force in all legal contexts or with respect to all types of norm. the eighth criterion is that of universalization (alexy 1989: p. 187), which requires that decisions reached are able to be universalized or, to put it another way, which establishes the need for the interpreter to adopt decisions that he or she would always be prepared to adopt given the same circumstances. this criterion has to do with the idea of precedent in the sense of that it requires the interpreter to always act as if he or she were setting a precedent the ninth criterion is related more directly to the idea of the precedent and is based upon what is known as a criterion to consider the interpretative precedent. this criterion requires that the interpreter justify the reason for excusing him or herself from an interpretative decision prior to the norm of rights that he or she is using (de asís 1995: pp. 263ff). the tenth and last of the criteria to which i will refer is that of acceptability (aarnio 1978: pp. 103ff). under this criterion, an interpretative decision is largely justified if it can be presented as that which is most accepted by society. the criterion has to do with the need for reasonable community expectations to be satisfied. the interpreter must thus reach decisions which are foreseeably acceptable to the community or, from another point of view, the interpretative decision must develop within the bounds of what is expected by its end-users and, once inside these bounds, it must be the decision which presumably enjoys the highest level of acceptance. in sum, the correct interpretation of the norms concerning rights is that which (i) is reached without self-interest; (ii) is coherent with a theory of rights which is willingly defended; (iii) explains the criteria which justify it;(iv) respects the limits of language; (v)utilizes non-refutable criteria; (vi) is proportional and has taken its consequences into account; (viii) may be made universal; (ix) respects interpretative precedents; (x)is acceptable to the community and which satisfies its expectations. in any case, it deals with criteria of correction so that their dissatisfaction does not necessarily imply the invalidity of the interpretative decision. bibliography aarnio, a. (1978) lo racional como razonable. madrid: centro de estudios constitucionales. alexy, r. (1989) teoría de la argumentación jurídica. madrid: centro de estudios constitucionales. ansuátegui roig, f.j. (2006) “positivismo jurídico y sistemas mixtos”. in: ramos pascua, j.a. and rodilla gonzález, m.a. (eds.) el positivismo jurídico a examen. estudios en homenaje a josé delgado pinto. salamanca: ediciones de la universidad de salamanca. ten guidelines for the correct interpretation of rights the age of human rights journal, 1 (2013) 33 atienza, m. (1991) las razones de derecho. madrid: centro de estudios constitucionales. barranco, m.c. (2004) derechos y decisiones interpretativas. madrid: marcial pons. barranco avilés, m.c. (2009) teoría del derecho y derechos fundamentales. lima: palestra bernal pulido, c. (2003) el principio de proporcionalidad y los derechos fundamentales. madrid: centro de estudios políticos y constitucionales. cuenca gómez, p. (2001) “en defensa de una concepción alternativa de la interpretación jurídica”. cuadernos electrónicos de filosofía del derecho, 23. cuenca gómez, p. (2008) el sistema jurídico como un sistema normativo mixto. madrid: dykinson. cuenca gómez, p. (2012) “la incidencia del derecho internacional de los derechos humanos en el derecho interno: la interpretación del artículo 10,2 de la constitución española”. revista de estudios jurídicos, 2. cuenca gómez, p. 2008-2009) “sobre el iuspositivismo y los criterios de validez jurídica”. anuario de filosofía del derecho, 25. de asís, r. (1993) “juez y objeción de conciencia”. sistema, 113. de asís, r. (1995) jueces y normas. madrid: marcial pons. de asis, r. (1998) sobre el razonamiento judicial. madrid: mcgraw-hill. de asís, r. (1999) “argumentación judicial y derechos”. revista de estudios jurídicos, 2. de asís, r. (2005) el juez y la motivación en el derecho. madrid: dykinson, madrid. de asís, r. (2010) “sobre la interpretación de los derechos sociales”. in: ribotta, s. and rossetti, a. (eds.) derechos sociales en el siglo xxi. un desafío clave para el derecho y la justicia. madrid: dykinson. del real alcalá, a. (2011) interpretación jurídica y neoconstitucionalismo. cali: universidad autónoma de occidente. dorado porras, j. (2004) iusnaturalismo y positivismo jurídico: una revisión de los argumentos en defensa del iuspositivism . cuadernos bartolomé de las casas, 33. madrid: dykinson. ezquiaga, f.j., (1987) la argumentación en la justicia constitucional española, oñati: ivap. gascón abellán, m. (1999) los hechos en el derecho, madrid: marcial pons. guastini, r. (2001) estudios sobre la interpretación jurídica. mexico: unam. jiménez cano, r. (2008) una metateoría del positivismo jurídico. madrid: marcial pons. lumia, g. (1966). “in tema di interpretazone e di applicazione del diritto”. rivista internazionale di filosofia del diritto. maccormick, n. (1978) legal reasoning and legal theory. oxford: clarendon press pérez de la fuente, o. (201) “¿es necesario la teoría para decidir casos judiciales? sobre la crítica del pragmatismo jurídico al derecho como integridad”. revista telemática de filosofía del derecho, 13. ruiz ruiz, r. (2011) “el desplazamiento de la discrecionalidad del legislador al juzgador: causas y recelos”. anuario de filosofía del derecho, xxvii. the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 1 the protection of human rights in the mexican republicanism carlos alberto aguilar blancas 1 abstract: democracy is not only a procedure of choice and citizen participation, but also a set of values that affirm freedom and citizen’s rights. the reform of 2011 rose to constitutional rank the defence, protection and promotion of human rights, representing an unprecedented historic breakthrough. with these reforms, mexico seeks to consolidate its constitutional system adapting it to reality, increasing its cultural diversity, values and traditions that have been shaping the mexican identity. the full knowledge of their rights produces a citizenship aware of them, which, even for mexico, is a long-term task. keywords: state, government, mexican constitutional law, human rights, international law, sovereignty. summary: i. introduction; ii. an approach to the rule of law in mexico; ii.1. general aspects of the rule of law; ii.2. rule of law in mexico; iii. scope of constitutional reform in the field of human rights from 2011; iii.1. aspects of the reform in the field of human rights, iii.2. jurisdictional implications of the reform in the field of human rights; iii.3. realities and prospects of human rights in mexico; iv. conclusions; v. references. i. introduction the constitutional state is characterized by the defence of the fundamental rights of individuals, in contrast to the classic constitutionalism, which sought the political freedom of the citizens against the public abuse of power (schmitt, 1992: 138), i.e., in those days it was reflected that there was not a bourgeois rule of law, that there was no individual rights and the separation or division of powers was not established. consequently the fundamental idea for the constitutional state is to integrate into the principle of rule of law, present in all modern constitutions, implementing the unlimited freedom of the individual, and as a 1 doctor of law from universidad de jaén, spain (carlosalberto_ab@yahoo.com.mx). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 2 consequence the faculty of the state to invade it is limited, therefore, the power of the state is divided and enclosed into a system of circumscribed powers. in this sense, maurizio fioravanti, expresses that constitution is a very old term, which can be found in western classical philosophy, where the term constitution was a political concept identified with the term politeia (fioravanti, 2011: 19), that is, with the idea of regime or form of government adopted by the city. however, the constitution does not necessarily have to be linked with the idea of government, unlike its substance would be on the notion of political unity and social management, therefore, the constitution would not reflect only the political unity of the state (schmitt, 1992: 30). given this scenario, the constitutionalism 2 is a political theory that is generated from the development of liberal philosophy oriented to obtain modern constitutions, based on the theory of limited government and the guarantee of having the same rights for everybody. regarding the human rights, the conception of modern constitutionalism can be observed in fullness in the declaration of the rights of men and citizens, document that establishes that without fundamental rights and separation of powers doesn’t exist the constitution, and in postulates written in the american constitution, in the 1776 virginia declaration as well as in the french constitution of 1791, among others. 3 in this sense, vicente bellver points out that to get guaranteed human rights, the state must provide the appropriate means; law in which administration bodies can be enacted and effective, and courts to those who demand justice (bellver, 2004: 166). meanwhile, antonio cançado, asserts that the presence of human rights strengthens the recognition that respect for human rights is the best measure of the degree of civilization. 4 this effort made permanently for the respect of the rights has resulted in that international public opinion deals with legal certainty the serious cases of violation of rights that occur in the different countries of the world. the true figure of an ius gentium, has caused a tendency to criminalize grave violations of human rights, consolidating a public order both internal and international around the protection and respect of human rights. transcending the recognition of treaties as a source of obligations for states, overcoming the objection to compliance based on sovereignty, encouraging compliance with one of the normative principles that must be observed by the executive power, the promotion and respect of human rights (saltalamacchia y covarrubias, 2011: 23 -24). spaemann expresses that every person is an end in itself and their dignity is completely independent of all function, since it relies on the personal character of the man 2 for constitution, could understand such as management of life in common given to men of a city (loughlin, 2010: 60). 3 the constitutionalisation is but a process for which it comes reshaping the political theory of constitutionalism. (carbonell, 2005: 54). 4 however, bellver, expresses all these instruments, as necessary, are not sufficient, since a community not be fully guaranteed their rights if you do not have a civic culture of rights (cancado, 2009: 417). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 3 (spaemann, 1989: 49-50). human dignity ontologically (ballester, 1993: 134-142, 193) refers to the importance and excellence of the being of the human being, that makes them different and put them on a level of superiority with regard to other beings, the concurrence of other conditions or circumstances that may resemble or approach to be irrelevant. this dignity lies in the act of being, derived from the condition of the body, i.e., not only it is today out of which nothing exists, but it is also the foundation of all values because it was of being the same value is nothing, there is no value without being. expressed in a different way, being is the act for which things and people are, is the most original and most intimate part of the body, which gives all their fullness from within (melendo, 1999: 99). for baumgartner, the constitutional guarantee of human dignity can be basically both in the person's relationship with the state as the interrelationship of people, being the foundation of a free, and solidarity, community that links the state power to the selfunderstanding of the person (baumgartner, 2002: 24). 5 for gregorio peces-barba, human dignity is the base of public ethics and constitutes a prius of the political and legal values (peces-barba martínez, 2003: 12, 67), and principles and rights deriving from those values such as freedom, equality, solidarity and security which only reach its fullness when its moral content is positivized in legal rules at the highest level (peces-barba martínez, 2004: 62). because of this, the legal expression of human dignity forms the ethical paradigm for the exercise of political power on a principle of legitimacy (martínez bullé-goyri, 1998: 166-167), being the most effective mechanism to fight against prejudices education (fernández garcía, 1987: 120), since ignorance is the main and the most fertile ground of discrimination and violation of human rights. human rights are designed to find the means to translate into law, the dignity of the person and its protection (talavera, 2006: 58). the practical function of human dignity 6 is the foundation of the legal order, guiding its interpretation and integration, and substantive human rights, the correlative duties including validation, pointing its practical meaning of a supra-value or meta-norm on which rights are developed either natural or positive (gonzález, 1986: 8794). human rights behind the ruling-ruled relationship in fulfilment of their constitutional obligations (fernández garcía, 2001: 25), based on the principles 5 norbert hoerster said, what is special about the concept of human dignity is that it is not a descriptive concept, the consequence of this is that the controversies of application are necessarily ethical valuation disputes and, as such, for reasons of principle, are, ultimately, inaccessible to a scientific-rational decision (hoerster, 2000: 99). 6 for césar landa, the functions of human dignity: a) function practice, you configure a fundamental order, a series of reasons and justifications for action, that give meaning to the dynamism of public and private entities; b) the integrative function, is to recognize the human dignity, it generates unity of purpose to the inside of a particular community; additionally, from the feature dignity integrative reveals its strength of duration, which gives stability to the institutions, namely the constitution; c) limiting function, which gives an account of the practical meaning of dignity, as an antidote against the authoritarianism of any kind (landa, 2002: 124 – 128). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 4 of universality, interdependence and indivisibility, escalation pro personae recognized and established by international law and legal doctrine. mexico is and has been part of statements and treated international that recognize the principles of the universal declaration of human rights of 1948, as well as those international instruments which afford greater protection to the human person, in light of this, these instruments have been integrated in the mexican legal system, either through the constitution itself or by other provisions of the internal legal order. in the year 2000, mexico initiated a process seeking to reform and it has been expressed by its constitution to human rights, a process that was completed in the first instance with the publication on 10 june 2011 in the official journal of the federation. 7 with the reform certain nationalistic and defensive position was exceeded that was based in mexico, where the concept of sovereignty was valued in an excessive way. from amendments to constitutions assumed more clearly a collaborative and internationalist stance, resizing the hierarchy of international treaties on human rights ratified by mexico in accordance with the constitutional article 133, deepened the constitutionalization of human rights, not only was strengthen the defence of the same system, but also the democratic institutions and the recognition and protection of human rights. ii. an approach to the rule of law in mexico the state and the law are means, organizations or instruments, made by men and for men, to ensure its aims, the company creates or recognizes the power of the state and submits it to the right so that it becomes rational and logical. the state is not a body endowed with a soul, because there is no other spirit than that of the humans, nor is there another will that the will of them. 8 humanity through its evolution has been observed as the extension of the coverage of the rights of the people has been routed to cover the aspects that affect the development of the individual and their coexistence. these rights sitting in the constitution only may be subtracted for review that permits its extension and never its restriction, nor their suppression. in the majority of countries the constitution defines the level and the legal tools that will establish the regulation of fundamental rights stipulating clearly the legal property protected, their scope of protection and safeguarding the state. the establishment of guarantees and limits to power is due to the need to curb abuses and transgressions to the 7 the purpose of the constitutional text is to make this more responsive to the needs and challenges that impose the political, economic, cultural and social reality of the country (garcía ramírez, 2011: 818). 8 the state as a whole social structure lacks a real and own will, which expressed through its bodies is not but will exclusively human. the idea of state body only can be explained on the basis of the existence of certain people, rulers and officials that the legal system attributed some powers conferred to his will, the value and effectiveness of the will of the state (llorens, 1958: 9). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 5 most fundamental rights that face humanity, making it possible to lift them to a hierarchical level of constitutional order, therefore, the basis of human rights is the human dignity. 9 finding on the right the way of regulation of freedoms, it is one of the biggest challenges of the rule of mexican law, in the sense of freedom, is the pillar of any society, under the premise, without freedom, there is no rule of law. series of inalienable rights are recovered to which the individual cannot disclaim in its constitution as a citizen, rights that predate even the construction of the state. the rule of law concerns citizens because they win more decision spaces and increase their representativeness; demanding more popular representatives, making more effective surveillance rights on state performance. however, the stronger a true rule of law requirement is to the state, its bodies and powers, representatives and leaders. ii.1. general aspects of the rule of law democracy is one of the classic forms of government, it is considered today as the government of the people, due to its etymological roots to return us to a relationship inevitable and indissoluble between two concepts such as the people and the government. although it is appropriate to say that these terms are insufficient to define democracy, since due to its complexity and nature it is required to incorporate terms like consensus, majority government, equality of rights, popular sovereignty, protection and respect for human rights, among other essential terms. for this reason, democracy is not only a procedure of election of governors and citizen participation, but also a set of political values which say freedom and citizenship rights to facilitate coexistence and, above all, to allow the political and social stability (montemayor, 1999: 37, 160). dahl exhibits certain characteristics such as minimal to configure any democratic system: competition between the various political elites in equality of circumstances; a free and fair electoral system with periodic and transparent elections; and respect for human rights (dahl, 1991: 21). one of the most sophisticated forms of democracy is in this context that is inserted into a rule of law causing general use to convert them into synonyms: rule of law is equivalent to democracy or democratic state, not in the sense of people's democracies, but which still appear with a reference of location become rule of valuation as western democracies (schmitt, 2003: 70, 71, 138, 147, y 260). however, the rule of law is more than democracy, it goes beyond, it is a guarantee to the limitation of the power of the state (morlino, 2005: 40), so the latter is concerned and proper law, namely the rule of law and respect for rights. 9 carpizo has expressed that the set of powers recognized in international instruments and in the constitutions to enforce the idea of the dignity of all persons, can lead to a really human existence from the areas as individualism, the social, political, economic and cultural (carpizo, 2011). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 6 the rule of law is based on the aspiration that men are governed by law and not by other men. the so-called rule of law contains features for any civil order, the rule of law is not only the strengthening of legal norms, but the principle of the supremacy of the law, and is at least the capacity, even if it is limited to the authorities to respect the law. in this sense, it must be clear that althoug in our days all sates have law, by their very nature, since it is difficult to conceive of a political society that does not have a political regime, regardless of this, only the rule of law serves as a scheme that allows two perspectives are designated in a unit: the public force hobbled legally, and the instrumental politician of the right (luhmann, 1989: 493-506). this brings us to express that with the combination of interests and the manifestation of explicit will, the democratic rule of law shaft joint society with the state itself. 10 in this order, the rule of law does not only combines imperium and forcefulness, but respect for human life, the recognition of the values that order and guarantee life in association, security for property rights, the philosophy of the public, the validity of the democracy and the postulates of social equity. making a bit of history, the rule of law 11 was protected in a coherent manner for the first time in liberal states. the rule of law is not anything other than the europeancontinental version of the rule of law, linchpin of the constitutionalism in english; it was in germany where the term rechtsstaat (rule of law) was and in france evolved into the régime administratif (administrative regime) which are different versions of the original rule of law. in the absence of an exact translation into spanish the term empire of the law, a reduced version of government under law, may be used (ferrajoli, 2001: 40). the rule of law arose from the process by which the english people conquered their liberties against political power, which started with the expedition of magna carta in 1215, in which the principle of english constitutionalism was enshrined, which is known as the guarantee of due process of law, in which no free man shall be put into prison, banished or killed after a legal judgment by their peers, and in accordance with the law of the land or lex terrae. even though the guarantee of due process of law tried to be hijacked by the monarchical absolutism that sought the subjugation of the judges and the right to political power finally won autonomy of law, preserving for regular judges the faculty meet and 10 society maintains an extensive field of activities under the supervision and encouragement of the state, can be summarized that the individual within the legal system can do everything, except what the law prohibits. for this reason, the official is limited in its activities, and can do nothing other than what the law allows. its capacity to act is subordinate to the general interest (porrúa, 1969: 414). 11 theoretically in mexico, you have a system that combines both elements of the rule of anglo-saxon law as under the french administrative system, as it can be seen from the most common interpretation of articles 14 and 16 constitutional. in mexico, the last of the validity of the law foundation is the constitution considered all fundamental law, not for the intrinsic rationality of its precepts, but for its formal validity, we consider that it is a rule of law closer to the french system where the law does not have (pereira, 1997: 99100). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 7 resolve all causes, even those challenging acts of authority, resolved in accordance with the lex terrae integrating both in the common law or case law as customary law, in addition to legislative provisions issued by the king and parliament. rule of law helped safeguard judicial independence, even in the judgments in which the authority was part, as well as the autonomy of law as cases are resolved which therefore guaranteeing minimum conditions for a fair trial (pereira, 1997: 99-100). on the other hand the administrative regime of french origin, involved a separate or special jurisdiction, integrated within the structure of the executive power, to meet and resolve the challenges for violations of the administrative authority to the rights of the governed, and must resolve in accordance with the law legislated by the same authority, who thus becomes judge and part at the same time reducing its role to ensure the legality, but not necessarily the justice of the acts of the public administration. the administrative regime contemplated the creation of administrative courts, whose members were appointed by the executive power whose independence is not guaranteed, for being part of the same public administration. the scope of the powers of the courts in the administrative scheme is more limited than in the rule of law reduced to verify the conformity of the acts of the authorities with the state law, i.e. law and regulations promulgated by the same authority (ferrajoli, 2001: 40). it is noted that the history of the modern state is the result of the rationalization of the power, reaching its maximum expression in the 18th century (serrano, arriola, 2003: 22), period in which the absolute monarchs had the means of economic management and domination of society by officials exercising their duties by delegation of the sovereign and without can claim this prerogatives or rights acquired in public order. an example is the french revolution, which liquidated the absolutist ancien-régime and established the liberal regime, transforming a stratified society in a classist society producing the generalisation and flourishing of the rule of law with this movement (noriega, 1998: 20). elías díaz expresses that the most basic demands and essential of an authentic rule of law can be realized by means of the law being the expression of the general will, the legality of judicial control, and rights and freedoms. certainly not all rule by law is an authentic rule of law, since it is not such if the law comes from an absolute individual will and not from an assembly of popular representation freely chosen. where law is taught without sufficient popular participation, and where the other requirements of the rule of law, forget is to the authoritarian context where the rule of law does not mean neither more nor less than the absolute will of the executive uncontrolled empire. the rule of positive law in very concrete sense is under provisions of the national assembly. the aim of all rules of law and its basic institutions focus on the aim of achieving a sufficient guarantee and legal certainty for the so-called fundamental human rights, which today constitute an essential element of the system's legitimacy that supports the rule of law (díaz, 1998: 4045). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 8 in relation to the first characteristic of the rule of law, the right exercised an ordering function, delimiting the competence of state power and safeguarding the freedoms of the governed (noriega, 1998: 20). thus, in the rule of law the powers of state are fixed by the positive law and their responsibilities are clearly defined and default, therefore, their actions are impersonal, objective and predictable. the rule of law is characterized for putting in one side the standard and in the other side the implementation of the standard emerging system of legality, the not men send nor authorities, nor the legislative bodies, but they only apply rules decoupling of them (schmitt, 1994: 41 y 74). it is appropriate to emphasize the general principles of the rule of law: the principle of the legal reserve, where it is claimed that any intervention in the freedom and property of individuals can be done under a general law, or to prevent a risk to the rest of society; nonretroactivity of the law, making sure that the law copper effect only at the time of its enactment and not towards the past; the autonomy of judges in their decisions and actions; the hierarchy of norms; the determination that the standards have been created by other standards, and so on; guarantee the conservation and defence of the constitution for the organs of the civil power in a society. the legal principles give certainty to legal action for the state based on a recognition of the fundamental principles of the man, understood as the right to property, to freedom and security of individuals, recognized in civil, economic, and political rights, are summarized in the individual rights of every human being. the effective principle of government, whereby, the ruling in turn is subject to accountability through mechanisms of surveillance by the population, also involving an effective separation of powers, in which the three branches executive, legislative and judicial control each other. the principle of authority of the law, supported by the fact that law is not only legal, but legitimate, i.e., those who make the law have effective representation of their members and, therefore, law is a reference for the betterment of society (villafuente, 2007: 200). ii.2. rule of law in mexico historically, the rule of law in mexico 12 has been a conquest, slow and gradual, made by individuals who against despotic powers sought safety for their person and their property, to the extent of living for many years, under the facade of democratic forms which hid social and political structures completely opposed to the concept of rule of law. 12 we can find a distant forerunner of the rule of law in mexico in the royal ordinance of intendant of 1786, whose objective was the definition and distribution of powers in the political and economic organization of new spain. the ordinance contained features such as the duty of the sovereign has with each and every one of his subjects to ensure that they achieve their happiness and well-being. also, in the ordinance of mayors, is set aside the legitimating weightings of the authority of the monarch, under the argument that is no longer required at least in their codes of religious considerations to justify the orders of the monarch (serrano, arriola, 2003: 23). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 9 therefore, the rule of law in mexico hosted in a truly democratic constitution, but in many ways without a real application. 13 for the 19th century mexico unfolded within the ideas of radical and moderate liberalism, culminating with the so-called reform movement and the disclosure at the end of that century some moderate socialist tendencies. rule of law models, which assume a relationship with fundamental rights, advancing, developing and updating in a modern constitutionalism 14 where their main function is the inclusion of fundamental rights are conceived from those events. the rule of law is becoming a social product, and unfolds as creating institutions that allow their everyday application. currently, in the mexican constitution, the law is the instrument for the development of the individual and social guarantees and in its articles there are constant references to supplement the fundamental rights (sartori, 1987: 167-179). likewise, the existence of three powers of the union is undeniably fully constituted and in functions, three different orders in addition, federal, state and municipal governments, as well as some organisms endowed with autonomy. however, mexico, presents a variety of problems posed for the establishment of a genuine rule of law; on the one hand, how to establish institutional components allowing to face the wide margins of social inequality, to give solution to this problem legal mechanisms enabling participation and accountability must established so that inequalities disappear, as well as instituting democratic social fabric to the inside of the social structure (villafuente, 2007: 195). in mexico one of the main problems has been indeed trying to close historic gaps of inequality and neglect of large sectors of society, so this situation causes the search of mechanisms so that justice and the law can be applied effectively to all sectors of society. another issue for the construction of the rule of law in mexico is the problem of the instrumentalisation generated by a political and discretionary use of the law, with specific particular political interests; a selective application of rights from the allocation of economic and social policy bounded to certain social groups, so this selective use of public service has violated systematically the rule of law, on the grounds of an economical-social policy (villagrás, 2001: 4-7). 13 the failure of the constitutional model in latin america is manifested for severe political instability which has failed to contain the countless succession of constitutions enacted, and its low degree of validity. democratic participation is reduced sometimes to the election of candidates, what has been called delegativa democracy was observed as a premise the low educational level of the voters, being easily manipulated for campaigns of parties, delegating decision-making to the popular representatives and making even more difficult the transparency and accountability. in the absence of a genuine citizen participation is conducive to phenomena of caudillismo, caciquismo, corruption, corporatism and the creation of various fiefdoms around the different agents brokers can (bravo, 1992: 18). 14 for constitutionalism can be understood, the submission of the state to the right, so that no can require no action or impose any omission, cannot send or prohibit citizens but under a legal provision authorizing this mandate or that prohibition (borja, 1997: 159). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 10 the delivery of justice is instrumentalized by the political power to the extent that the application of the law becomes an instrument of demobilization of the participation of citizens in targeted sectors, so it occasionally in a systematic manner, and in clear violation of the rule of law, political or business stakeholders determine, influence and impede the free exercise of the law enforcement. 15 the result is that the principle of universality of application of the law within the rule of law is denied, due to the fact that the majority of the population is excluded from the principles of the universality of the rule of law while a few have unrestricted access. the constant in latin america and mexico is the increase in crime, which is accompanied by impunity, and this lack of democratic conditions to ensure the delivery of justice has led to the emergence and the explosion of new problems. in mexico, citizens political rights are respected but not their civil and social rights (sosa, 2001: 3). the application of the rule of law under the logic of liberal doctrines is that they are held in an implied duality between the state and society, from the point of view that both have limits set for enforcement frames, so they have different functions and powers. society is determined by law and the rule of law while the state is perceived as a fictional human, built to safeguard the principles of freedom among equals, where the state is a guarantor of human freedom (mouffe, 1998: 120). mexico tries to find the most suitable way to consolidate a constitutional regime adapted to reality, building on and enhancing cultural diversity, values and traditions that have been shaping the mexican identity. in any case, it is undisputed that currently mexico is experiencing a democratic change in which already no one can question the democratizing will of the government, nor much less the irrevocable decision of the society to move forward in this process to achieve change through consensus through agreed arrangements. iii. scope of the constitutional reform in the field of human rights from 2011 it is appropriate to recall that the beginnings of the constitutional state date back to the social breakdown that led to the tyranny of feudalism during the 18th century; the independence of the american colonies from england; the eradication of absolutism and acceptance of a catalogue of rights in favour of the french people, the proclamation of the universal declaration of human rights, the consolidation of this document are the basis of 15 the effectiveness of the rule of law is based on the principles of accountability and certainty. the principle of certainty is based on the correct application of the law, under the logic that your application is going to be equal to the same type situations and, when this is not so, there will be other duly qualified authority which sanctioned the authorities responsible for this situation and repair the tort committed. the rule of law is a legal system, a set of rules with several features, as well as its proper enactment (platas, 2001: 13, 112). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 11 the constitution and the fundamental rights (carpizo, 2009: 3). as a result of these events the state has the obligation to recognize, respect, and defend the human rights (ferrajoli, 1999: 145). respect for human rights by the government should be and is a purpose which would question the validity of the rule of law in mexico, the abolition of slavery and equal rights were flags of emancipation movements. in the constitution of mexico of 1824, there were not implemented standards that refer to individual rights, because the state of mexico required previously the guarantee of national sovereignty and to organize the exercise of power. later the constitution of 1857, recognized the individual guarantees, as well as the faculty of the government to dictate laws through congress to reduce inequality and ignorance, to reorganize the country and to end with charters and privileges. after some decades mexico passed through a tormented and bloody process towards a new stage, resulting from this, a new constitutional order comes in 1917, in the document as well as the individual rights already embodied in the constitution of 1857, joined the socalled social rights, these rights synthesized the demands of a population that was trying to change through a rebellion against an intransigent and despotic power. with the constitutional reform of human rights promulgated in mexico in june 2011, the regulatory framework on which the judge works in the judicial field was transformed, as well as the mechanisms that served this occupation. these transformations of the mexican legal system experienced a true paradigm shift in the mexican law of human rights, with the new demands placed on who are charged with the judicial work, in the form of interpreting both the substantive normative precepts as adjectives or procedural relating to his performance up to the perception of its function. 16 iii.1. aspects of the reform in the field of human rights the mexican state has historically followed a nationalistic and defensive position that puts the protection of sovereignty against the international regime of human rights to an international and cooperative application. principles have been developed within this path as: supremacy and recognition of the universality of human rights; the full autonomy of the protective bodies and the nature of membership of its recommendations; fight against all forms of discrimination; strengthening of citizen participation (cámara de diputados, 2005). 16 the positivist theory of rights human, are subjective public rights and it’s basis lies in the order of highest recognition called constitution, constitutes the highest and most important legal document from which emanate the guidelines of all secondary standards (silva y silva, 2009: 1-7). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 12 with the constitutional reform of 2011, elements and mechanisms necessary to ensure the maximum protection of human rights were conferred, seeking to meet international obligations that mexico has signed and ratified in various international treaties, incorporating thus a broader protection of the regime. 17 the congress of the union served a historical work for giving human rights a prominent place in the magna carta. with the widespread recognition of human rights not to create rights of first and second category, the principle of “conforming interpretation” was adopted , allowing a subsidiary application of the international order to remedy gaps without implying, in any moment, abrogation or non-application of a rule of domestic law. with this principle of subsidiarity removed criteria of supra-subordination, making it possible that the interpreter of the constitution is assisted standards enshrined in international treaties. one of the momentous changes is the conceptualization, the term human rights replaces the individual guarantees, with the change in mexico, the concept human rights, refers to the set of prerogatives inherent to the nature of the person, whose effective implementation is essential for the full development of the individual living in a legally organized society. in addition to being recognized and guaranteed by the state, these are universal, permanent, progressive and pre-existing state or fundamental norms. 18 meanwhile, individual guarantees are subjective public rights that give owners the power to demand them legally through the legal instruments set forth in the constitution, therefore, the individual guarantees are the limits of the action of public authorities. moreover, human rights predate and surpass the public power, and the state is forced to recognize, respect and protect them. 19 human rights inherent to the dignity of the person must be recognized by the state through its law, in addition to this, its validity, protection, defence, promotion, education and surveillance are also responsibility of the state, which is reinforced with the signing and ratification of international treaties in that area. with reform various obligations were introduced to the state against the violation of human rights, such as the prevention, investigation and punishment of the acts in violation of these rights. another aspect of relevance is the replacement of the term “individual” by “person” in order to avoid limitations and provide a legal connotation more appropriate for the recognition of the human rights. with the incorporation of the principle “pro personae” it is ordered, on the one hand, a more extensive interpretation of the constitutional rule at the 17 rodríguez and rodríguez, human rights are defined as the set of privileges, liberties and claims of civil, political, economic, social and cultural character, including resources and guarantee mechanisms of all of them, recognizing the human being whereas it individually and collectively (rodríguez y rodríguez, 1985: 223). 18 for félix trigo, human rights are inherent in men, one as a human being, since the human person is regarded as a qualitative and esteemed entity in relation to its dignity (félix, 1990: 315). 19 it is important to point out that the epistemology of rights and of human rights indicates that these are studied from different streams of legal thought: the debate which is founded on an axiological approach in which the most important is justice; and, the jus that is based on the assessment of the right and the validity of the standard according to a formal process (arévalo, 2001: 47 – 49). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 13 time of the protected rights, and on the another, a more narrow interpretation when established limits in the exercise of the rights or their extraordinary suspension and wider application. the distinction between human rights and the legal instruments through which ensures their respect is clear, this distinction makes sense to the extent that, the rights are recognized by the state, in the case of a legal reality whose validity is not subjected to the will of those who have the power to define the content of positive law. while individual guarantees are implemented and to some extent granted to provide owners the means and mechanisms to demand their respect and observance. the inclusion of important obligations explicitly which will assume the mexican state against them. noting that all authority in the scope of their powers have the obligation to promote, respect, protect and guarantee human rights, as a result, the state must prevent, investigate, punish and repair violations of human rights. from the theoretical point of view, these warranties are classified as primary and secondary, the first relating to the establishment of obligations and explicit prohibitions, while the latter constitute obligations of sanction or repair the rights violations, identifying and punishing those who are responsible, as well as restoring and repairing the right violated; in addition to this, the state has the duty of prevention with legal, political, administrative and cultural, with respect to the acts of individuals, you must set a system of prevention, investigation and punishment of those who violate human rights (ferrajoli, 2002: 61). the reform of 2011 includes permanently imprinted principles such as the universality, indivisibility, interdependence and escalation, including the principle pro personae. the principle of universality has two aspects as starting and arrival point in the practice of human rights, i.e., the guarantee of such rights is independent of the situations and circumstances in which human beings live and legal positions which eventually play (martínez, 1995: 264). the principle of interdependence binds the content and requirements of human rights, means that the validity of a law is precondition for the full realization of each other, in such a way that the violation or disregard of any of these affect the whole. the principle of progressivity is linked to the obligations of the state to increase and implement the development of public policies focused on greater protection, respect and guarantee of human rights; linked to this is the principle of non-degressivity or irreversibility, which aims at the impossibility of suppressing the condition of a human right once the state has recognized it. 20 20 article 15 of the mexican constitution, embodies this principle to establish, the failure to abolish the status of a human right once the mexican state has recognized for some ad hoc legal instrument. "do not allow the celebration of treaties for the extradition of political offenders, nor of those offenders on the common agenda which have taken in the country where they committed the crime, the condition of slaves; or of conventions or treaties under which will alter the human rights recognized for this constitution and in the international treaties which the mexican state is a party". the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 14 the most relevant inclusion is the principle pro personae or principle pro homine 21 ; this principle expresses that the rule that in each case is more favourable to the person, either national or international, must be selected and applied. this principle is obliged to attend the broader standard or interpretation more extensive, when recognition protected rights and, conversely, the standard or the more narrow interpretation when it comes to establish limits to the exercise of the rights or their extraordinary suspension. 22 the recognition of this principle is in the second paragraph of article 1 of the mexican constitution, which says: “the rules on human rights shall be interpreted in accordance with this constitution favouring in all time people broader protection”. the reform included that any act of expulsion of foreigners should be based legally, exhausting a hearing in which the person concerned may express which right to appropriate, because that in mexico foreign people who have that quality shall enjoy human rights and guarantees that the mexican constitution recognizes. likewise, recognized right of every person to seek asylum, protecting individuals who are subjects of a pursuit by the authorities of the state from which they are sourced. with the reform, the quality of refugee is protected through various facets recognized within the right of asylum, both doctrinal and practical: the right to be admitted to the territory of a different state of origin; the right to remain in that territory; the right to not be expelled; the right not to be extradited to the country of origin where takes place the chase, among others (ramírez y pallares, 2011: 257-259). to the supreme court of justice of the nation is attributed the faculty informally reviewing the constitutionality of the decrees issued by the executive in the area of restriction and suspension in the exercise of law and legal guarantees to them associated. the agency focused on the protection of human rights, both at federal and state level, has an instrument known as recommendations. established the obligation of the authorities or public servants whose acts are the subject of a recommendation, to found, to motivate and to make public non-acceptance and non-compliance with the issued recommendation. in case of refusal, it is reflected the faculty of various legislative bodies to request the attendance of holders, to effect to explain the negative recommendation. 21 the legal right protected for human rights is the dignity of the person, from the french declaration of the rights of man and of the citizen of 1789, in that document were affirmed as anterior and superior to the state with feature: fundamental and innate positivizada way (de pina, 1989: 217). 22 to formally fundamental rights, these are at one level above-ordered with respect to any other, conferring their holders owned, such ownership lies in sovereignty, this idea is reinforced the political notion of democracy defended by bovero. democracy is the power of the people, already not simply in the sense that the people and therefore a citizens correspond them only rights political and, therefore, through the mediation of representative self-government, but also in the further sense that corresponds to the people and to all the people who make it up all of those "contra-poderes" which are fundamental rights, freedom and social (ferrajoli, 2003: 234-235). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 15 among the new powers granted to the national of the human rights commission, 23 this may investigate incidents that constitute serious violations of human rights and, where appropriate, make allegations and complaints to the respective authorities. likewise, it shall be competent to deal with violations of human rights in labour matters, and may also controvert international treaties that violate human rights through an action of unconstitutionality. 24 on the prison issue in mexico, this system will be designed to comply with the requirement of full respect for human rights. catalina pérez correa expressed that the problem of the rights of people in detention is the enforcement and enforceability of these rights. prisons are hidden places, away from the society, which, in addition, enclose those that the society consider reprehensible and, often, deserving of condemnation. the legal rules on the rights of the detainees rarely are met, and this is a gap between what law says and what is being done, in addition to an incompatibility with the values of the social state (pérez, 2011: 253). in mexico, the international treaties to which it is part, are primary sources, will be membership the fulfilment of obligations, shall apply the rules of jus cogens in international law, shall be binding sentences of judicial processes in which the state has been convicted; 25 in the case that the state does not endorsed nor apply a recommendation directed to it, must, by the principle of good faith in international matters and their constitutional obligations, substantiate its offered alternative solution to protect more and better human rights (ramírez y pallares, 2011: 379). finally, the 2011 constitutional reform established the right to non-discrimination, 26 the recognition of the legal personality, to life, to personal integrity, the protection of the 23 the national commission on human rights, since its inception in 1990, has undergone a constant process of transformation in its work for the protection of human rights. during this long process he has sought new mechanisms of response to the demands of a changing society and the challenges that demand the protection of vulnerable groups (galindo rodríguez, 2011: 147). 24 the ombudsman finds its origins in sweden and was used to refer to a person or body that protects the interests of the individuals in a community. the ombudsman appears under the controversy between the king of sweden and the parliament, therefore was appointed to a staff member whose job would be to investigate complaints from the public against the government bureaucracy. in 1809, was created by the swedish constitution the first ombudsman, responsible for ensuring compliance with the laws. however in the 19th century, the ombudsman was not very well-known was until 1919 when finland established a similar figure backed by its constitution (pellón, 1981: 132). 25 the supreme court of justice of the nation has studied aspects of the decision of the iachr radilla pacheco vinculatorios vs. applicable to the judiciary mexico: for the case of remedies, in the plenum of the supreme court a proposal of criteria that can be used to elucidate the solution for this issue as to the legal value and scope of these international statements (corte interamericana de derechos humanos, caso radilla pacheco vs. méxico. excepciones preliminares, fondo, reparaciones y costas, sentencia del 23 de noviembre de 2009, serie c, núm. 209). 26 the prohibition of discrimination is referred to in article 14 of the european convention of human rights (echr), which establishes that every person enjoys the rights without distinction on grounds of sex, race, the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 16 family, the name, nationality; the rights of the child; political rights; the freedoms of thought, conscience and profess any religious belief; the principle of legality and retroactivity; the prohibition of the death penalty; the prohibition of slavery and servitude; the prohibition of enforced disappearance and torture; the judicial guarantees essential for the protection of such rights. iii.2. jurisdictional implications of the reform in the field of human rights it is well known that in roman law, both in the digest, the pandects as well as the law of the xii tables, noted the argumentation of justice as a supreme principle to achieve the equitable, the just, so that in the procedure, rigidity is imposed for the judge to act and exert jus dicere is prioritized ius naturale from ius homini, whereupon, the sentence was leaning in favour of man and their fundamental rights. for aristotle the constitution was more fundamental than the law, in the sense that it shaped the rest of laws, also approaching it the rule of law, since the generality and rationality of the law would be better than the arbitrariness of a particular decision. the constitution and politics were not oriented to promote human excellence and improvement of citizens, since the primary task of the policy 27 according to aristotle, is not perfect the souls of men but preserve regimes real and imperfect, to empower people against the bad habits and destructive trends encouraged for the way of life that the regime has enshrined (aristóteles, 1999: 1276b, 5-8). popular sovereignty as historical and normative reality finds its reason and principle in human rights, it is appropriate to recall that this sovereignty gave the man as a social individual, the power to delegate the function to rulers of their representation. these relationships between civil society and the state are reflected in an instrument in which the limits of that relationship are formalized, hereunder is the so-called political constitution, in where the activity of political power by limiting it to the existence and respect of fundamental rights is indicated in its rules. therefore, moving from a national sovereignty to a popular sovereignty requires that society must not continue to be built, from the strengthen of the power of the state, but on the contrary, since respect for fundamental language, political or religious beliefs or origin. the protocol 12 to the echr broadens the scope of the prohibition to establish that the enjoyment of all the rights recognized for the law must be ensured without any discrimination, in particular for reasons of sex, race, colour, language, religion, political opinion or of other nature, national or social origin, membership of a national minority, wealth, birth or any other situation. no one may be discriminated against by any public authority. meanwhile, the charter of fundamental rights of the european union, incorporating the prohibition of any form of discrimination, pointing, prohibiting all forms of discrimination, and in particular the exerted for reason of sex, race, colour, ethnic or social origins, genetic characteristics, language, religion or convictions, political opinions or any other type, membership of a national minority, birth, heritage, disability age or sexual orientation (agencia de los derechos fundamentales de la unión europea y consejo de europa, 2010: 33). 27 aristotelian political science not seeks to transform regimes imperfect as democracies and oligarchies, in regimes devoted to human excellence, but rather seeks to institute measures that allow imperfect regimes to respect its principles and moderate his reckless tendencies (berkowitz, 2001: 32). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 17 human rights which must build and program the state activity. thus, the acts of the state and its institutions must be governed bythe law, and sovereignty, as expression of power moved from state to society, specifically in the full exercise of their rights and respect for fundamental human rights. the constitutionalisation is the process by which public life is subjected to the discipline of constitutional standards (comanducci, 2002: 91-93), being in this way, the constitution a series of rules that prescribe the criteria to be able to justify an action or conduct (zagrebelsky, 1999: 110), wherein is no longer considered as essential set limits or controls the state but that priority is given to the protection and guarantee of fundamental rights (bobbio, 2009: 23). constitutionalism is also considered as a theory of the right, as a method to address the study of law or an ideology of the right (ridall, 1991: 149-185). the constitutionalists considered that it is a moral obligation to obey the constitution, because the principles that are in it, on the basis that they symbolize justice. the recognition of civil and political rights throughout history has been a purpose and a limit to the exercise of power, which implicitly or explicitly become a requirement of human dignity, for putting in place a limit on sovereignty and the exercise of state power (nogueira, 2003: 4). in this sense, the importance of fundamental rights, lies in the range established within each state, as well as protecting individuals and mechanisms established for law guarantees. there are some references with respect to the protection of human rights as opposed to the sovereign which include the magna carta of 1215, the petition of rights of 1627, the habeas corpus of 1679 and the bill of rights of 1688, which are repeated manifestations of rejection of the arbitrariness of the absolutism that the monarchs intended to continue ruling; these documents give rise to the concept of fundamental rights reflecting the conquest of the people against the power; they are the documents that provided guarantees. the magna carta of 1215 of england is the document in which for the first time the powers of the sovereign will be delimited. it must be remembered that due to the existing confrontations between the nobles and the anglo-saxons, these imposed on king john i of england through this document, a council or parliament limiting his power, establishing general provisions as the subject to a process for judging an individual or even established the separation of church and state, among others. clause 39 of the mentioned document, instituted that: “no man may be arrested or imprisoned or deprived of their rights or property, or moved outside the law or banished its range of otherwise private, or we will use force against him or send to others who do so, but under the judgement of their peers or by law of the kingdom”. while clause 40 stated: “we will not sell, deny or will delay anyone their right or justice”. 28 28 clause it 39 is considered to be a statement of individual freedom and the principle of legal certainty or the principle of legality. from a first reading one could suppose that their objective is to defend people against arbitrary detention, but in reality it is content goes beyond that, represents a history of the right to an impartial the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 18 in france in 1789, people noted the inability of leaders to address the state's problems and the waste of public resources and excesses of the monarchy, such as tax increment resulting in the impoverishment of workers. therefore, between 20 and 26 august 1789 the national constituent assembly discussed and approved the declaration of the rights of man and citizen, this document recognized rights such as personal liberty, property, equality, security and resistance to oppression, among others. in its explanatory statement, expressed public ills and corruption of governments originated the forgetfulness, ignorance or contempt of the rights of man, therefore resolving declare and recognize natural and inalienable rights of man, in the area of the state (cienfuegos, 2005: 52). with regard to the federal constitution of the united states of america, adopted in 1787, initially it was criticized by the absence of a declaration of human rights, causing congress to prepare a section of individual rights, which was voted and approved in 1789, ratified by states members in 1791 under the document bill of rights. in it were implanted, freedom of religion, freedom of expression, of assembly and petition; the freedom to carry and possess weapons, the right to a fair trial and jury, the guarantee of legality and legal certainty among others (sirvent, 2010: 124). as regards positivism, this associated the law with justice, while the neoconstitucionalism sets out the mandate of fulfilling what the constitution orders. in this sense, comanducci points out that the theoretical constitutionalism can adopt as an object of research the axiological or descriptive model of the constitution as a rule; in the first case, it is recognized in the constitution a set of rules that, with respect to other rules, are of superior character; in the second, as the constitution is a set of rules with respect to each other, provided possess them a value or content, i.e., that the constitution for this model has a value in itself, if the axiological model, constitutionalism is an ideology (comanducci, 2002: 91-99). riccardo guastini, expresses seven environments that must be fulfilled by a constitutionalized order: a) rigid constitution; b) the judicial guarantee of the constitution; c) the binding force of the constitution fundamentally based on general principles; d) the over-interpretation of the constitution; e) the direct application of constitutional norms; f) the interpretation of the law must be kept in full harmony with the constitution; g) the influence of the constitution on the political relations (guastini, 2005: 50-58). meanwhile, political philosophy oriented to the man with the conquest of nature, i.e., that all human beings were included within a universal state (ferrajoli, 2004: 24) in a single regime that would be the same for all, enjoy extensive freedoms and equality, this could reach under the regime called democratic constitutionalism (vázquez, 2012: 65). judge to recognize the right to be judged "pairs" and not for who designate king or feudal lord. likewise, at the beginning of the due process of law; for example when links detention, deprivation of rights and possessions and the exile, with the existence of a judgment that should be legal (carbonell, 2005: 76). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 19 under democratic control, the fundamental task of the government is treating its citizens as equals (dworkin, 2003: 23). the constitutional court is designed to make possible the exercise of the fundamental right of all people to the integrity and supremacy of the constitution, mentoring mechanisms to secure the ends of the state, the effectiveness of the principles, rights and duties enshrined in the constitution. in the constitutional state the principle of an independent judiciary has its origin in the theory of the separation of powers, on the grounds that the executive, the legislative and the judiciary are separated branchs of the government, forming a system of checks and balances aimed at the prevention of abuse of power to the detriment of society. 29 for this reason, in what it regards the judiciary, individual judges must exercise their responsibilities without being influenced by the executive, the legislature, or any other medium or person. as a result, the principle of independence of judges is intended to protect humans from abuses of power, so that judges may not act arbitrarily, resolving or sentencing cases based on their own personal preferences, but their duty is the interpretation and application of the law. therefore, with regard to the protection of the individual means that judges have the responsibility to apply either the right internal and international human rights, ensuring the application of the principle pro person. judges regardless of their specialization of labour, civil, criminal, administrative, etc., are primarily constitutional judges, because they are required to acknowledge in their exercise as provided in the constitution, or to adhere to its postulates and principles, since it is likely that their decisions are subjected to constitutional review. the judge has been given the rol of the guarantor of the constitution as a mandate enshrined in the notion of popular sovereignty, reflected on the constitutional jurisdiction; this jurisdiction is an institutional guarantee of protection of fundamental rights, conceiving it as a condition for the real fulfilment of the constitution. it is appropriate to recall that this was one of the pillars for that in the plenary of the supreme court of justice of the nation of mexico, it resolved the record concerning compliance with the ruling of the interamerican court of human rights issued in the case radilla pacheco, preceding that revolutionized the delivery of justice in regards to the control of diffuse conventionality and clarifying the control of constitutionality in the courts. granting greater protection to people is the basic principle for interpreting the policy statements of the constitution, that is and will be the ultimate aim of the law, where its realization has an impact that transcends the work jurisdiction, conditioning acting all authority and particular. 29 zamora grant, points out that fundamental rights are the pillar on which resides all state organization that is based on respect for the right and the consecration of interests to the same supervision. states organize their systems for putting limits on the exercise of the institutions, rulers and in general to the state power in favor of the human dignity of the governed (zamora, 2007: 21). the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 20 then, the international treaties signed and ratified by mexico are in a range at the of the constitutional precepts, 30 this advance rights human extend rights in favour of the individual trying to principle pro homine, indigenous children, abuse of women, in short, human rights have the same rank. faced with this situation, control conventionality and the diffuse control of constitutionality relate to the obligation of the courts to take into account the rules that human rights granting a greater benefit to the person against rules of secondary nature; as well as the obligation of all the judges of the common law rules that contravene international human rights or provisions of the constitution, on the grounds that it granted fewer benefits or prevent the exercise of a right is not applied. the impartial enforcement will take place on the basis of the law protecting human rights and fundamental freedoms of the individual, to do so, it is essential that society has full confidence in the members of the judicial power, to comply with their functions independently and impartially. the importance of the constitutional jurisdiction consists of the opening to the interpretation of the application of the rules of the treaties and international conventions on human rights (steven, weinberger, zinman, 2009: 16). the commission on human rights of the united nations points out that human rights and fundamental freedoms are better safeguarded to the extent that the judiciary and the legal professions are protected from interference and pressure. 31 iii.3. realities and prospects of human rights in mexico the mexican constitutional system planned for more than one century the individual protection through the writ of amparo (burgoa, 2001: 176) in order to monitor and ensure that the action of the state is respectful of human rights. as a result of the recent reform the legal framework was enriched and strengthened (oea-cidh, 2015) the legislative aspect, in 2012 the law of national registry of data of persons lost or missing; in january 2013, the general law of victims, in april, 2013; the new law of amparo; in 2014, the general law of the rights of children, girls and adolescents was passed; in 2015, the general law of transparency and access to public information, which was awarded to the national institute of transparency, access to information and protection of personal data, attribution 30 there are four levels in the classification on the normative orders: a) supranational, b) constitutional, d) legal and supralegal c). the first distinction, international treaties prevail even with respect to the constitution of the state; on the second level, he equated them with the same normative hierarchy of the constitution, they acquire constitutional rank, rigidity and supremacy of the same level; the third level, equated it with domestic law, however can not be over or modify the constitution; and last, some constitutions give international treaties a hierarchy equivalent to internal rules causing changes to the system (gomez, 2003: 25-29). three dimensions in the determination of human rights; the first relates to the axiological value of philosophical; the second considers human rights as a legal independent figures, thus alluding to the institutionalization that is sustained from a normative structure; and, finally, a political or consensual dimension that speaks of the interpretation of such rights in a collective institutionalism (alexy, 2007: 47). 31 nu doc. e/cn.4/sub.2/1993/25, informe sobre la independencia de la judicatura y la protección de los abogados en ejercicio, par.1. carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 21 of declassified information concerning serious violations of human rights. enacted in 2008, a constitutional reform aimed at transforming its inquisitorial judicial system into one accusatorial and oral, whose implementation will be in 2016. administrative matters approved the mechanisms of protection of defenders of human rights and journalists; the national plan for human rights (2013-2018); the national programme of human rights 2014-2018, which contains main objective to achieve the effective implementation of the constitutional reform of human rights; the adoption of the national programme for the social prevention of violence and crime (2014-2018); the general prosecutor of the republic announced the creation of the special prosecutor for the attention of crimes against migrants for 2016; the approval of research protocols in the field of forced disappearance and torture. in jurisprudential matters, the supreme court of justice of the nation established the inadmissibility of “evidence based on an illegal arrest and violating fundamental rights”, established the obligation of judges to open two separate incidents before a complaint of torture, to investigate the allegations and determine the need to exclude evidence, avoiding postponing the admissibility until judgment and unlinking the exclusion of proof of the outcome of the investigation; it met the unconstitutionality of the local roots for the commission of serious crimes, confirming the federal jurisdiction of rooting for cases of organised crime; it was determined that the rights guaranteed by international human rights treaties have the same weight as the enshrined in the constitution. in addition, it stands out the resolution of the supreme court of justice, which restricts military jurisdiction in cases in which the elements of the armed forces committed violations of human rights against civilians, as well as the right to make the control of conventionality for all courts in the country. in mexico, the changes have not been limited to policy and exercise in the government, they have also covered other aspects of it is legal scaffolding, however, the distrust of authorities and institutions still persists in some sectors, with regard to settling disagreements. for this reason, this protection in a legal system based on the respect for the rule of law requires independent and impartial judges willing to investigate and prosecute alleged crimes committed against human beings even if they were committed by the rulers. this system defends the idea of justice in its daily version based on the equation of justice and human rights. where the judges not fulfilled their function there is a risk of impunity from taking root, widening the difference between the general population and the authorities, in addition to presenting the scenario that citizens have problems to resort to justice, impairing the administration of justice. for this reason, it is important that between the rule of law and the exercise of the right there is a process of legal causation, driving the consolidation of a culture of full respect of the law, compliance with international commitments and the strengthening of the participation of civil society. the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 22 the formation of citizen’s aware of their rights and responsibilities is still a longterm; in addition to this task, we need to professionalize all units of the government so that they can comply with the rules on human rights, as well as the implementation of the recommendations issued by the mexican ombudsman. in this regard, it is appropriate to recall thomas humprey marshall, who said that in the development of citizen’s and it is relationship with the government class associates a civilian element with the courts or the courts of justice, pointing out that one of the bases for the protection of the rights of man resided in eliminating the social privileges, establishing equality before the law ensuring a fair trial for any citizen (humphrey, 2005: 25). notwithstanding the marked progress, in the mexican state shortcomings and obstacles in their implementation are perceived, as well as a yawning gap between the legislation and its application in the judicial field, and everyday reality that millions of mexicans live. the lack of access to justice resulted in impunity consequences behind the repetition of serious human rights violations (oea-cidh, 2015). the justice system does not offer justice to victims of violent crimes and violations of human rights, due to corruption; lack of training; complicity of agents of the public ministry and advocates of trade; weak enforcement of the law, the latter to lead to the emergence of armed citizen self-defence groups in some regions of the country. human rights watch documented that in mexico even torture are practiced to get information and confessions under duress, pointing out that there are judges who accepted confessions obtained under torture. judicial officials do not apply the istanbul protocol, to assess the state of people who may have been victims of torture or ill-treatment. they also detected that the authorities have failed to properly investigate crimes against journalists, causing journalists to opt for self-censorship before attacks by government officials or criminal groups (hrw, 2014). in present mexico, it is time to reflect on the necessity of subjecting the power to law, establishing the rule of law as the instrument enabling the cohabitation and coexistence in a multicultural society, where the constitution is the tool to protect, recognize and strengthen individual rights, therefore, it is of utmost importance for mexico to have the law as supreme authority (burgoa, 1985: 385). do not forget that the magna carta is a condemnation of the government absolutism, which is why no one, not even the president of the republic, is above the law, this principle being the basis of constitutional freedoms. the constitutional reforms on human rights marked a before and an after in the history. these modifications aim to comply with universal human freedoms, supervised by the international system, they were the product of the evolution of the mexican legal system, at this stage an intense legislative process in the recent history of mexican parliamentarism was observed, where there were enriching contributions and reached consensus (vigo, 2013: 23). carlos alberto aguilar blancas the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 23 the consolidation of human rights in mexico entails the need to make them effective, with the aim that the mexican constitutional state is described by the society as democratic political system. in this transit a number of challenges remain which could call into question the respect and the guarantee of human rights, as social exclusion, violence, threats to democracy, internal displacement, trafficking and trafficking in persons. in addition to this, will be relevant violations attention to human rights does not end with the issuance of recommendations, therefore, it is necessary, a follow-up for adherence in those cases in which the authorities accepted, peer-form report negatives or obstacles that arise for their compliance. not to forget that human dignity is the basis of the political, legal and social system of a community. iv. conclusions the modern state was built against the regimes of privilege laid the foundation of the egalitarian ideal. do not forget that in the 19th century, the constitutions of europe began to consecrate the principle of equality taking inspiration from the french revolution, notably in the declaration of rights of man and of the citizen of 1789, which states in its first article that “men are born and remain free and equal in rights” and that “men are by nature equal before the law”. the principle of equality is one of the foundations of democracy, where the state guarantees access to social, economic and cultural assets to all persons. the republican character in modern constitutionalism seeks a political system consisting of a system of political unity and commitment to the pursuit of well-being, emphasizing the political obligations and the protection of individual rights. human rights are rights inherent to all human beings, without distinction of nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other condition. we all have the same human rights, without discrimination. these rights are indivisible, interdependent and interrelated, are referred to in the law, international treaties, sources of international law and general principles of law, pointing out their obligations the rulers, as well as the promotion and protection of human rights. the re-elevation and legal recognition of human rights is considered a breakthrough for the development of the law, since it is from this moment, when granted supremacy to the fundamental rights of man against the state, without forgetting that these rights are also recognized by each individual. faced with this situation the judiciary must assume the task of interpreting the principles and values contained in the constitution and international treaties by devising a new judicial interpretation, this will generate new criteria and jurisprudential thesis. under this new order of concordance between the constitution and the international treaties with the laws and secondary regulations, in mexico it is necessary to revise the principles rooted in its legal and constitutional supremacy and normative hierarchy tradition, since the constitutional reform in the field of human rights from 2011, the protection of human rights in the mexican republicanism the age of human rights journal, 5 (december 2015) pp. 1-28 issn: 2340-9592 24 abandons the rigidity of the mexican legal positivism, recognizing the existence of rights inherent to the person regardless that they are enshrined in the constitution. do not forget that the mexican legal system found traditionally theoretical support in the phased construction of the legal system, where it was that the constitution as positive standard governing the production of general legal regulations, i.e. the higher standard prescribes the procedure for which produced another standard, and sometimes also designates or limits the contents of the new standard. thus, it gives support to the principle of constitutional supremacy, establishing that the constitution creates the public authorities, defines its functions, establishes the legislative procedures, regulates the conclusion and ratification of international treaties. the reform enacted in 2011, is considered the starting point for the adaptation of the new constitutional order, the mexican legal system, in which should be through a long process of transformation of old institutions and practices rooted, and at 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this is different from other consociational democracies, where minorities are entitled with selected veto power only regarding their vital interests, but they cannot block constitutional decision-making. since kosovo is among the youngest countries worldwide, this constitutional provision can be a heavy obstacle even in the state building efforts of majority. therefore, in this article we will try to explain in depth this constitutional arrangement versus principles of sharing power systems and versus similar democracies in the region and wider. the doctrinal constitutional interpretation, descriptive and comparative methods are the main pillars of research methodology. keywords: kosovo, constitution, minority, veto rights, consociational democracy, sharing power. summary: i. introduction; ii. the right of veto of minorities in kosovo; iii. a regional level comparison; iii.1.bosnia and herzegovina; iii.2.republic of north macedonia; iv. conclusions. i. introduction the political system of kosovo belongs to the power sharing democracies. the governance system in kosovo is a distinct model of democracies with powers shared among the communities, namely derivative of the consensus theory. considering the way of creation and the structure of power, certain authors, in an effort to find a correct label, call this system of governance a "community state" or a "concessional state" (ramadani, 2009). these label names, which are essentially the same, are based on a system of governance analysis based on the consensus theory and the comprehensive proposal for the ahtisaari's kosovo status agreement.2 although kosovo represents a typical case of homogenous society,3 the document emerged from the multiethnic concept and hence it recommended a divided democracy. 1 lecturer, phd, faculty of law, university of business and technology, prishtina, kosovo (behar.selimi@ubt-uni.net). 2 the plan was named after the un special representative, former finnish president martti ahtisaari, who led the one-year (2006-2007) talks between kosovo and serbia. for this document see: https://www.kuvendikosoves.org/common/docs/comprehensive%20proposal%20.pdf 3 since 1981, kosovo has been inhabited by more than 80% of albanians, and on the eve of the war by 88%. since the last census of 2011, boycotted by the four northern municipalities, it turns out that kosovo is inhabited by over 90% albanian. so, unlike the states (macedonia and bosnia and herzegovina), which represent genuine multiethnic societies, or other multi-cultural and multiethnic countries (ireland, belgium, lebanon, etc.), in which the model of consciousness democracy was used. see:http://worldpopulationreview.com/countries/kosovo-population/(available 11.04.2019) https://www.indexmundi.com/kosovo/demographics_profile.html (available 11.04.2019) minority veto rights in kosovo’s democracy the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 149 according to arend ljiphart, the conscious democracy has four features: broad coalition government, reciprocal veto, proportional representation and segmental autonomy (ljiphart, 1977, p. 25). this model of governance is recommended for deep ethnic, religious and cultural societies, and especially post-conflict societies. rather than recommended, in the new democracies in the western balkans (bosnia and herzegovina, north macedonia and kosovo), this model of power organization has been imposed by international actors, as of no alternative (bieber and keil, 2009, p. 312). in kosovo, some authors do not consider it a purely consensual model, as the representatives of the communities in the government do not have the right to veto and the fact that they did not have the right to veto in the initial constitutional approval; also because kosovo, unlike bosnia herzegovina, has an individual president (korenica, f. i doli, no date). they consider that on these issues, the kosovo constitution accepts a fundamentalist approach. indeed, the integralists do not deny cultural differences. they only aim to establish common public institutions irrespective of ethnic and other differences (interim agreement for peace and self-government in kosovo, 1999, pp. 41-51). the first consociational mechanisms in relation to kosovo are found in the draft of the rambouillet accord (interim agreement for peace and self-government in kosovo, 1999), which was accepted by the kosovo side, but not by the serbian side and then also in the constitutional framework for provisional self-government in (unmik/reg/2001/9, 2001) and, finally, by the current constitution of kosovo (2008). the constitution outlines all the provisions of the ahtisaari's comprehensive proposal on the status for kosovo, which promote the divided power democracy, and even as we will see below, overcome the demands of conscientious democracy. regarding the broad coalition government and proportional representation as two of the first characteristics of this model of governance, the constitution of kosovo (article 64 and article 96) promotes executive and legislative conscience, as it guarantees the participation of at least two ministers and 4 deputy ministers in the government and at least 20 minority community members, of whom 10 should be of the serb community (kosovo assambly, 2008). moreover, if the government has more than 12 ministers, then a minister and 2 deputy ministers from the communities are added to the government. proportional political representation of minorities is also applied in the leadership with the assembly, as the constitution requires the election of two vice presidents from the ranks of mps representing minorities, of which one should belong to the serbian minority, and the other from among the other non-majority communities. although kosovo is not a typical multiethnic society, the application of the this model of consociational executive has produced results, especially in achieving common interethnic governance and more proportional representation (especially serbian representation) of all communities in kosovo. the best evidence is continual partipacipation of all minorities as requsted by constitution, in each government from independence (2008) till actual (2019). behar selimi the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 150 regarding representation in public institutions, the constitution (article 61) is clear in guaranteeing the right of non-majority communities to equal representation in public administration bodies and public enterprises. the right of representation in the police service in residential areas with non-majority communities is particularly emphasized. the law on civil servants of 2010 defines, even more clearly, the right of representation of non-majority communities in public administration, reserving for them at least 10% of public posts (kosovo assambly, 2010). a similar situation prevails also with proportional representation at the local level of government, but we will only be limited to the central level, as our main topic is not representation. it is worth adding to the fact that the first amendment to the kosovo constitution strengthens the position of non-majority communities, participation in public life and decision-making, allowing for measures or actions of affirmative politics (kosovo assambly, 2012). regarding non-territorial autonomy, as a prerequisite of consensus-based democracy, the kosovo constitution for non-majority communities guarantees three types of autonomy: personal autonomy, cultural autonomy and high degree of selfgovernment, especially in municipalities dominated by the serb community. in these municipalities, the law on local self-government, in addition to its own and delegated competences, also guarantees enhanced competencies in the field of education, health and appointment of local police commanders (kosovo assembly, 2008) . like in other democracies of divided power, in kosovo's democracy too, the non-majority communities are guaranteed the right of veto, which fulfills the framework of the preconditions of the country's economic democracy, even outweighing the current practices of this model, thus exacerbating more of an integration approach, though in favor of the minority. as we will see below, this right makes kosovo's democracy a "conditioned democracy" by minorities and a barrier to the end of the process of making the state. also, in comparison with similar democracies, we will see that this constitutional institute is currently the only one of this type, by which non-majority communities can block even changing of a single word of the constitution. ii. the right of veto of minorities in kosovo the minority veto in kosovo can be realized in two cases and within two types of the majority. in the first case, article 81 of the constitution of kosovo recognizes the right of minority communities to oppose adoption of laws that may violate their vital interests. there are 8 types of laws, for the adoption, amendment or abrogation of which most of the majority mps present and voting are needed, as well as the majority of mps who are present and voting. mostly, these laws relate to education at all levels, use of languages, local elections, use of symbols, creation and termination of municipalities or the changing of their borders, extension of municipal power, and the laws for the enforcement of rights of communities and their members. moreover, these laws cannot minority veto rights in kosovo’s democracy the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 151 be subject to a referendum either. popular sovereignty is limited to these laws, as the constitution in article 81, paragraph 2, does not allow them to submit to a referendum. this type of minority veto right is typical of the conscious democracies and, as it is regulated by the constitution, promotes and guarantees the protection of the specific vital interests of the communities. taking into account the guaranteed number of community representatives in the assembly, minority veto rights also encourage their mobilization against the majority. in order to protect their vital interests, they should be present as much as possible in the assembly at the time of voting and cooperate with each other, as the voting of the aforementioned laws can only be made if the majority of the minorities represented in parliament are present and vote. so, the vote of the majority of a community does not suffice, as a majority all community representatives represented in the assembly is needed. ultimately, it can be said that this type of minority veto is in the function of interethnic political cohesion guaranteeing for a most advanced democracy for nonmajority communities. fortunately, the traditional sensibility of the albanian majority to non-majority communities in kosovo has greatly influenced the veto on minority issues of vital interest to be accepted without any opposition, not only by the political representatives of the albanian majority but also by ordinary citizens. in the second case, the constitution of kosovo, in article 114, requires that 2/3 of the members of the parliament vote for amending the constitution, including 2/3 of the members of the parliament representing the non-majority communities. as the assembly of kosovo has 120 seats, of which 10 seats are guaranteed for representatives of the serbian community and 10 for representatives of other non-majority communities, for amending the constitution, in whatever variant, at least the vote of 13 mps of non-majority communities are needed. in the context of kosovo, where representatives of the serb community vote en bloc and are led by the leadership in belgrade, the change of the constitution on certain matters is impossible. for worse, the messages of unmik administrators for kosovo under resolution 1244 and the ongoing manipulation of kosovo serbs by belgrade's political leaders have discouraged the integration of serbs into kosovo's institutions and hence the blocking of finalization processes of kosovo's statehood. blocking of the constitutional changes for the transformation of the kosovo security force into an army is just one example of how a minority veto can block the creation of national institutions that serve the common interest of all communities (baliqi, 2018). due to the specifics of the process of building kosovo's statehood and because of its character, minority veto in kosovo can be considered as an example and as an obstacle to the development of democracy, or an obstacle to the exercise of national sovereignty. in fact, one may conclude that, in a constitutional aspect, the majority in kosovo is hostage to minority interests. unlike the first type, this type of veto is a political and constitutional institute imposed by international and controversial even today, especially by the political representatives of the albanian majority (loncar, 2015). behar selimi the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 152 iii. a regional level comparison although there are numerous examples of reciprocal vetoes globally, for the needs of this paper we will be focused mainly to cases in the region that can be compared to the case of kosovo, including occasional refrences to the countries with long mutual veto experience, like belgium. bosnia and herzegovina and macedonia are typical cases of democracies with sharing powers in which minorities are guaranteed the right of veto in all decisions that may affect their vital national interests. iii.1.bosnia and herzegovina bosnia and herzegovina represents an unsuccessful example of a consociational democracy, for the fact that ethnic divisions with constitutional arrangements only deepened (kasapovic, 2005). the current constitution and constitutional arrangements of the entities are reflections of the "dayton accords", which ended the four year war in bosnia and herzegovina.4 they were meant as temporary arrangements to ensure the transition from a controlled democracy to a consolidated democracy (bojkov d. victor, 2003). the complexity of bosnia and herzegovina's constitutional political arrangements makes it difficult for a comparative analysis, as there is still a dilemma as to its naming, if it is a union of states, a federation or confederation respectively, so the veto right at the level of bosnia and herzegovina is a reciprocal veto of the of the three constituent ethnic communities in frame of two territorial political entities-federal unites. due to this, and for the purpose of this paper, we will feel free to reduce the level of analysis and comparison at an entity level by calling bosnia-herzegovina, according to professor soren keil , as a “ethnic federation sui generis” (antonini, 2014). at the confederal level, parliamentary decision-making, especially legislation, is based on the positive majority of the votes of the present and voting mps, provided that at least one third of the representatives of each entity are present. according to the constitution (article 4, paragraph 3), any decision of the parliamentary assembly may be declared destructive to vital interests by the majority of the delegates of one or another entity (parlamentarna skupstina bosne i hercegovine, 2009). the constitution has also established a procedure for reaching agreement, according to which a 3member committee (one member from each entity) requires a consensus within 5 days, and if that does not happen the constitutional court is the final authority for assessing the decision whether it is in contradiction with the vital national interests of the complaining entity or not. although is unique, this constitutional arrangement can be compered with belgium “alarm bell procedure” (kelleher, 2005). the fact that the federal constitution has not determined what the vital national interests are makes the right of mutual veto to be a serious obstacle to the creation of 4 the dayton agreement was reached in november 1995 at dayton, ohio, usa, and was signed in december of that year. more on this agreement see: https://www.osce.org/bih/126173?download=true minority veto rights in kosovo’s democracy the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 153 federal legislation. as an illustration, we are mentioning that in the period of 1997-2007 out of 529 laws reviewed, 269 of them did not get the majority of the deputy votes due to the veto of representatives of either entity (gavrić, banović and barreiro, 2013). as we have seen above, in kosovo the situation is much more favorable, at least for two reasons: first, the kosovo constitution has explicitly defined what are the laws that may affect vital national interests, which are also require the vote of the majority of representatives of non-majority communities present and voting. secondly, while the mutual veto in bosnia and herzegovina maintains and deepens ethnic division, the veto of non-majority communities in kosovo encourages inter-minority co-operation among non-majority communities, and also political consensus with the albanian majority. regarding constitutional changes, federal constitutional arrangements require amendments to be voted on by 2/3 of the representatives in the federal assembly. this means 2/3 of the attendees in the chamber of representatives and 2/3 in the peoples' chamber. unlike the case of kosovo, which expressly requires 2/3 of all mps, including 2/3 of mps of non-majority communities. at first, the impression is that the constitution of bosnia and herzegovina can be easily changed, especially when realizing that the parliamentary assembly is dominated by bosniaks and croats, who can easily make a majority of 2/3. this majority can be achieved both in the representative and the people's chambers. in fact, in the current allocation of seats in parliament, the representative chamber has 42 mps, of which the croatian and bosniak entity is represented by 28 representatives, and the serbian entity with 14 mps. likewise, in the peoples' chamber, out of a total of 15 mps, 10 seats belong to bosniaks and croats, and 5 to serbs. so, in both cases, the bosnian and croat entities make up a qualified majority. however, the fact that the constitution amendment comes as a parliamentary decision, the representatives of any of the entities can use the right of veto to protect national interests and hinder the change. the fact that so far, only one amendment has been adopted, speaks for itself.5 a similar situation prevails also at the entity level, with the only difference that in their constitutions issues for which a veto may be used to protect national interests are expressly defined. changing the constitution also requires a majority of 2/3 in the representative chamber and majority of each entity in the peoples' chamber. while in the federal entity two-thirds of the members of the constitutional assembly are required, seeking the consensus of the majority of serbian and croatian representatives. iii.2.republic of north macedonia north macedonia is another case of the implementation of the concept of democratic democracy, which, despite all the difficulties still following, has brought major changes to the north macedonian political system and has provided lasting peace 5 it is about the amendment, which clarifies the powers of the constitutional court regarding the brcko district. this amendment was adopted in 2009. behar selimi the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 154 for as long now. this model was provided by the "ohrid accord",6 reached between representatives of the major macedonian and albanian political parties, with international mediation. north macedonia, as well as kosovo, has maintained the unitary character of the state, but with a solid degree of decentralization. in addition to decentralization, the agreement also imposes a proportional electoral system, which provides relatively proportional representation of ethnic communities, proportional representation in public administration bodies and public enterprises, as well as an application of the so-called "badinter majority".7 in fact, here we are concerned with a suspensive veto of non-majority communities, which, as in kosovo, means "a double majority". unlike the case of kosovo, where the government of an inter-ethnic coalition is a compulsory, the macedonian constitution does not require a government of a broad interethnic coalition, though political needs have created a practice of joint albanianmacedonian governance. the minority veto, in the form of a "double majority", according to the northern macedonian constitution can be used regarding three issues. first, pursuant to article 69, paragraph 2, for the adoption of laws dealing with culture, use of language, education, personal documents and use of symbols, a majority of the votes of the present deputies, including the majority of votes of the present members of nonmajority communities are required. as compared to kosovo, we see similarities with the same majority and the same way of voting, though not with regard to the issues to which this veto or majority applies. in the case of kosovo, as we have said above, there is a wider range of issues that require a double majority. however, the constitution of the republic of north macedonia, in article 78, has established an interethnic committee consisting of 19 members and which, in addition to examining the issues of relations between communities, also decides on cases when a special procedure for the use of the double majority is contested. so if the majority in the parliament object to the application of the double majority, on the pretext that it is not part of the areas of vital national interest, then the interethnic committee decides with a majority of votes of its members. the fact that the committee consists of 7 macedonians, 7 albanians, and 5 representatives of other communities (1 turkish, 1, bosniak, 1 serb, 1 roma and 1 vlach) allows for the non-majority communities to consider issues of vital national interest and any other issue, which is not explicitly mentioned in the constitution. kosovo also has a consultative council for communities, though it is a consultative institution and within the office of the president without a constitutional power like that of the macedonian inter-ethnic parliamentary committee. the ombudsman is elected only on a majority of all mps voting, though on condition that within this majority there must be a majority of all members of the non-majority communities. otherwise, in 6 the ohrid framework agreement was signed on 13.08.2001 ending the armed conflict between the national liberation army and the macedonian army. 7 it was so named, according to the name of french lawyer robert badinter, who in 1991 was head of the arbitration commission for yugoslavia and later engaged in the drafting of the ohrid agreement. minority veto rights in kosovo’s democracy the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 155 kosovo, voting for the ombudsman is subject to a usual voting procedure, which requires only a majority of all deputies. regarding the election of members of the judicial council, out of 15 members, 5 members only opt for the double majority, while others are elected by the judges themselves. in the case of kosovo, the judicial council is composed of 13 members, of whom 5 members are elected by the judges themselves, while 8 members are elected by the assembly of kosovo, of which 4 should be elected by mps of non-majority communities. as for the members of the constitutional court, the parliament of north macedonia is an electoral authority and it elects its nine members. six of them are elected by the majority of the votes of all mps, and three members by most mps, though the majority of the representatives of non-majority communities should also be included in this majority. otherwise, in kosovo the assembly is only a proposing authority, and the appointment is made by the president. however, the proposals of 9 members should be voted in the assembly through the following procedure: 7 members are proposed with the approval of 2/3 of the present and voting mps, while the other 2 members are proposed with the approval of the majority of the present and voting mps, though only with the consent of the majority of mps of non-majority communities. finally, both in the case of north macedonia and the case of kosovo, a minority veto has been applied to constitutional amendments, but with essential differences. in the republic of noth macedonia, the constitution can be amended on 2/3 of all mps, only on issues of vital interest to communities (education, language, culture, local selfgovernment and the like) requiring within the majority of 2/3 a majority of 2/3 of the non-majority communities. on the other hand, in the case of kosovo, constitutional amendments are considered adopted only if they have the votes of 2/3 of all deputies, but on condition that these two thirds contain also 2/3 of mps of non-majority communities on whatever matters (constitution of macedonia, 2005). so, in the case of kosovo, the right of minority veto is absolute and unlimited on issues of vital interests for minorities. it can be used even against changing a single word in the constitution. this power of minority right in kosovo makes it special and not typical in comparison with the right of the minority veto in the case of consociational democracies, even with most “consolidated one, like belgium” (lijphart, 1981). in comparision we can conclude that in belgian democracy, a minority veto is constitutionally guaranteed only for matters of vital interest to constitutive communities (belgian house of reresentatives, 2017). even the so called "alarm bell procedure" is in the function of a “soft veto power”, and can not block the constitutional changes in general. this procedure can only provide consensus opportunities for issues of vital interest. behar selimi the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 156 iv.conclusions a comparative analysis of minority veto rights in all three cases of study provides some clear and direct (explicit) conclusions, and also indirect or implicit implications. first, the veto of non-majority communities in kosovo, related to legislation, is a strong shield of their vital national interests and in the function of democratic governance. the range of national interests is wider than in other cases analyzed here and, moreover, it is clearly defined on the constitution. secondly, the veto of the non-majority communities on constitutional changes is a specific arrangement, unprecedented in consociational democracies, as in the case of kosovo, the approval of any constitutional change cannot be made without the consent of 2/3 of the representatives of non-majority communities. third, the veto in the constitutional changes also conflicts with the principles of consensual democracy, which does not allow minorities to block the governing of the majority, the less so disputing the sovereignty of the people. fourthly, although kosovo is not a typical multiethnic society, the application of the model of consociational democracy has produced results, especially in achieving common interethnic governance and more proportional representation (especially serbian representation) of all communities in kosovo. finally, the minority veto on constitutional changes, in the way it is regulated by the current constitution of kosovo, may hinder the consolidation of the state and democracy. its modification through a constitutional change procedure is impossible, therefore it requires a political approach, which should be aimed at the consent of its non-majority communities, so that their veto right is restricted to matters of vital interest national. references antonini, c. 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(2009) ‘power-sharing revisited: lessons learned in the balkans?’, review of central and east european law. doi: 10.1163/092598809x12474728805778. minority veto rights in kosovo’s democracy the age of human rights journal, 12 (june 2019) pp. 148-157 issn: 2340-9592 doi: 10.17561/tahrj.n12.8 157 bojkov d. victor (2003) ‘democracy in bosnia and herzegovina: post-1995 political system and its functioning’, southeast european politics, iv(1), pp. 41–67. constitution of macedonia (2005). assambly of macedonia. gavrić, s., banović, d. and barreiro, m. (2013) the political system of bosnia and herzegovina institutions – actors – processes. sarajevo: sarajevski otvoreni centar/sarajevo open centre. interim agreement for peace and self-government in kosovo (1999). rambouillet, france. kasapovic, m. (2005) ‘bosnia and herzegovina: consociational or liberal democracy’, politicka misao, xlii(5), pp. 3–30. kelleher, s. (2005) ‘minority veto rights in power sharing systems: lessons from macedonia, northern ireland and belgium’, adalah’s newsletter, 13, pp. 6–7. korenica, f. i doli, d. (no date) ‘the politics of constitutional design in divided societies: the case of kosovo’, croatian yearbook of european law & policy, 6((6)), pp. 265–292. kosovo assambly (2008) constitution of kosovo. kosovo. kosovo assambly (2010) low on the civil service. kosovo assambly (2012) gazeta zyrtare e reublikës së kosovës. kosovo. kosovo assembly (2008) low on local sel governmant. lijphart, a. (1981) conflict and coexistence in belgium : the dynamics of a culturally divided society. edited by a. ljiphart. university of california berkeley. institute of international studies. ljiphart, a. (1977) democracy in plural societies-comparative exploration. new haven and london yale univerisity press. loncar, j. (2015) power-sharing in kosovo: effects of ethnic quotas and minority veto. in:j. teokarević, b. baliqiands.surlić(ed.)perspectivesofa multiethnic society in kosovo (5) power-sharing in kosovo: effects of ethnic quotas and minority veto | request pdf. available. mcgarry, b. o. and r. s. (2008) ‘the integration-accommodation debate: an outline’ constitutional design for divided societies: integration or accommodation? edited by s. choudhry. new york: (oup, oxford 2008). parlamentarna skupstina bosne i hercegovine (2009) ustav bosne i hercegovine (opšti okvirni sporazum za mir u bosni i hercegovini – aneks iv) i amandman i na ustav bosne i hercegovine. bosnja i hercegovina. ramadani, b. (2009) shteti i komuniteteve: në zbatim të modelit të ahtisarit. unmik/reg/2001/9 (2001) regulation no. 2001/9 on a constitutional framework for provisional self-government in kosovo. _ the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 139 from exclusivism to pluralism: a reflection on european religious minorities1 mariana rosca2 abstract: this paper reviews the religious diversity theory in the writings of hick, legenhausen and netland, among others. it distinguishes two main approaches to religious diversity, pluralism and exclusivism, and examines their negative and positive application in the current situation of new minorities’ management policies. drawing on current praxis the negative consequences of religious minorities’ disintegration processes are identified. the paper argues for the need to develop further actions that could effectively accommodate minority´s religious identities, in order to build a common and shared framework, with a certain degree of flexibility to be able to adapt to future social and cultural changes. keywords: exclusivism; integration policies; minorities; pluralism; religious education. summary: i. introduction; ii. a theoretical overview of exclusivist perspective; iii. a theoretical overview of pluralist perspective; iv. integration policy offer – pluralist or exclusivist? v. conclusion; vi. references. i. introduction throughout the history, religion and religious-like beliefs helped people to adapt and gather natural resources and altogether with science, shaped the modern world. modernization undermined the social significance of religion and was supposed to lead to a decline in religious beliefs (wilson, 1966). however, such a forecast was heavily criticized, since it mainly referred to the dynamics of western european christianity transformation (luckmann, 1991). in fact, in a global perspective, the disappearance of religion due to modernization is unlikely to occur in the near future (urrutia asúa, 2016). furthermore, the current state of art proves that religion has by no means disappeared from the european public spaces and the resurgence of some beliefs, such as islam, has stimulated a large political and social debate on religion´s role and influence inside the european societies. whereas the new emphasis on religion, it has to be specified that the coexistence of different religions together was historically problematic. as kymlicka aptly points out: “it is important to recall that western europe and its colonial settler states were deeply scarred by centuries of religious conflict between protestants and catholics. these conflicts often left societies deeply divided between a victorious and hegemonic majority whose religion implicitly or explicitly infused public institutions, a distrusted and a marginalized minority whose religion was either ignored or viewed with 1 the research leading to these results received funding from the european union’s horizon 2020 research and innovation programme under the marie sklodoska-curie grant agreement nº 665959. 2 marie-curie phd fellow, university of deusto, bilbao, spain (rosca.mariana@deusto.es). from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 140 suspicion”(kymlicka, 2009:3). consequently, one conflict seems over (protestants and catholics) and a new one emerged, related to the question of islam in the west. islam became a new other for the western democracies, marginalized and viewed with suspicion. in relation to this, the resurgence of a new global conflict was advocated in the early 90s. during this time huntington pioneered to forecast a new conflictual scenario for humanity to face in the years to come. he stated that “the fundamental source of conflict in the new world would be cultural and between civilizations”. furthermore, the conflict will dominate the global politics and “the fault lines between civilizations will be the battle lines of the future” (huntington, 1996:6). since the divides would be mainly cultural, it will separate civilizations from one another on the bases of cultural and religious differences. these differences, according to the author, are real and fundamental. moreover, they are the product of centuries of historical practices. among different cultural differences, religion is assumed to be the most important one. huntington argues that in the contemporary world, religion moved in to fill the gap left behind by the separation of people from longstanding local identities and often took the form of fundamentalist movements (huntington, 1996). although, there are many critics of huntington´s theory “it is in relation to islam that… [his] thesis has found the greatest resonance and has provoked the most heated debates”(casanova, 2011: 252). tragically, the september 11th attacks in the united states and the following terrorist attacks in europe have been seen as a confirmation of huntington´s theory of clashes: between islam and the west. today, the terrifying terrorist attacks that keep on taking place in europe place a new emphasis on the faith issues of religious minorities. this increased challenge for democratic societies makes the debate on religious minorities’ accommodation balance between exclusivist and pluralist views/approaches. the former raises serious questions in relation to the compatibility of islam with western values and advocates for the exclusion of religion from the public sphere, exclusion of religious instruction and clothing from public education. the french religious education and assimilationist model is considered a relevant example of the exclusivist approach and it is discussed in the paper. in fact, it excludes particularly islam and it tends to explain the violent or radical behavior of some elements of this religious belief. the latter, pluralist approach, asserts the positive value for many or most religions. it advocates for policy improvements that could include participatory and inclusive instruments, to value more the cultural and religious diversity that could lead to a proper inclusion and a sense of belonging. there has been substantial research undertaken on “reasonable accommodation” instrument (day and brodsky, 1996; alidadi, bader and vermeulen, 2013; lefebvre and beaman, 2014; ruiz vieytez, 2010) as a possible solution to religious diversity accommodation and which will be examined later. in the particular case of europe, a proper pluralistic approach to integration is not yet fully implemented; there are countries that have some segmented experiences on “accommodating” religious pluralism. such experiences vary from religious education to integration models and can serve as examples of pluralist policies which aim, to some extent, to accommodate the religious diversity in general and islam in particular. a relevant example of such mechanisms is the example of the mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 141 religious education in public schools in spain and education and integration of religious pluralism in the netherlands. both examples are brought into discussion due to the fact that they could lay the path towards the development of a “reasonable accommodation” of religious identities, with a common and shared framework, with a certain degree of flexibility to be able to adapt to future social and cultural changes and for the benefit of both religious minorities and european society as a whole. in this context, the current religiously rooted clashes emphasize the need to examine the issues of religious diversity anew. to start with, in rethinking it, the first task is to revise the theoretical framework of two main approaches: exclusivism and pluralism and then re-examine their applications in the current situation of new minorities´ policies. ii. a theoretical overview of exclusivist perspective there is almost no state today without at least one minority within its territory. although many minorities are present in one territory for a long time, the so-called national (old) minorities’ co-habitation with the hosting society was not always peaceful. many social, political and armed conflicts characterize this relation. in this scenario, the new minorities came into the debate to reemphasize the need for recognition, nondiscrimination, equal rights and cultural and religious diversity accommodations. different responses have been used to accommodate diversity, most of which is influenced by a domestic political tradition of a “majority versus minority” perspective (ruiz vieytez, 2007). in this way, majorities rule and impose their integration policy perspective over minority groups. in relation to this, kymlicka repeatedly shows that the “inherited systems of governing religious diversity contain rigidities and hierarchies that lock-in privileges for older christian (and sometimes jewish) religions, while putting up arbitrary barriers to other religions, particularly those practiced by immigrant groups and especially on islam” (kymlicka, 2009:4). these restraints have been used to advocate for social cohesion and harmonization but in fact, led to marginalization and exclusion. in the particular case of religious minorities, there has been little public concern on their religious accommodation needs in western europe. they were usually regarded as “others” that, sooner or later, should leave, assimilate and acquire the majority´s values, customs, and traditions. when this reality became more visible then it was clear that the western tradition, most of the time, neglected and denigrated the claims of religious minorities. such experiences are rooted in the exclusivist approach that tended to be used by majorities in relation to minorities or religious other. the research on exclusivism is primarily concerned with justifying the role of a one and only truth in religion as an absolute. to put it in a nutshell, exclusivism in regards to religious diversity denies any form of pluralism. it dismisses the idea that all beliefs, or at least the “major ones”, are the same in some important respect (netland, 2001:9). because of this, arguably exclusivism represents a default view in several religious traditions (burton, 2010). for example, the earliest buddhist and christian sources prominently feature staunch criticisms of various rival teachings and practices as, from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 142 respectively, false, useless or harmful (tuggy, 2015). criticizing and questioning the other faith was used, most of the time by exclusivists, to ground the truth of their religion. followers of an exclusivist approach can be found amongst several religions, such as christians, muslims, etc. all being biased by their own religious beliefs and advocating for their one and only religious universality. from one side, christians are claiming that salvation is offered only through jesus christ that represents the only savior and the only way to god. alike powerful exclusivist opinions are to be found amongst muslims as well, that consider that “there is no god but god and muhammad is his prophet” (ghandour, 2014). moreover, many muslims claim to be the only ones who shall enter paradise, based on the quranic teachings which mention that all kuffar (infidels or nonmuslims) will go to hell. in addition, “since muslims are required to establish equilibrium between this world and the principles of religion, they must live their lives here guided by [islam] religious principles and the idea of the beyond” (ahmed, 1993:29). as result of these both (exclusivist) views, there is just one center and there can be just one unique and “universal” truth. a scholar that heavily defended exclusivism in his works is harold a. netland. he emphasizes that salvation is settled exclusively through jesus christ and that such a saving dimension does not exist in other religions. netland states that “exclusivism maintains that the central claims of christianity are true and that where the claims of christianity conflict with those of other religions the latter are to be rejected as false”(netland,1999:77). panikkar´s research on exclusivism raises a similar idea and he argues that the exclusivists hold the view that only his/her religious tradition contains the “absolute truth” or it is a valid “truth claim” and that all other existing and previously existing claims possess neither valid nor legitimate “truth claims”. this claim, he argues, has “a certain built-in claim to exclusivity” (panikkar, 1998:534). in the particular case of christian exclusivists, they characteristically consider that god has revealed himself definitively in the bible and that jesus christ is the unique incarnation of god, the only lord and savior. in addition, “salvation is not found in the structures of other religious traditions” (netland, 1999:10). in the same line is the view expressed by crafford´s research on exclusivism, who mentioned that the exclusivist position holds that salvation is only possible through confession and surrender to god in christ (crafford, 1995). the lack of salvation in the other religious traditions proves to netland, and some other authors, the exclusivity of christian faith, although he accepts the existence of other faiths with which christianity relates, such as islam. as mentioned earlier, islam has also an exclusivist perspective which is not only spiritual but also refers to the muslim daily leaving “islam…prescribes behavior in every part of human life and action… islam, in effect, is asserted to be a complete way of life designed to introduce the consciousness of the divine in every moment of daily life and every muslim is accountable for all his or her actions within it” (maréchal et al, 2003:6). in this way, the broad and absolute presence in every part of life advocates the islam as the true religion and only way of life. some authors, as explained further, founded their mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 143 point of view looking at the relation and differences of their religion compared with the others. looking at the relation of christianity with other religions netland notices that the religious ultimate, the human predicament and the nature of salvation are differently, even contradictorily, pictured by the buddhist, muslims, hindus and christians. while he acknowledges that they have their own specific claims, netland does not see it possible that all religious claims can be right. once this incompatibility is acknowledged, he starts questioning “which, if any, is the correct one?” (netland, 1999:77). in this way the author is excluding from the start, the possibility of a plural existence of two or more divine truths. while the author starts looking for a correct answer to his outstanding question, he points out that “not all of the claims of the various traditions can be true. some must be false” and, in order to substantiate his statement he considers that “it has traditionally been held that the muslim and the orthodox christian cannot both be correct in their respective beliefs about the identity of jesus” (netland, 1999:78). a similar thought has westerlund and his research on exclusivism leads him to the statement that “exclusivism denotes the idea that only one religion or religious denomination is true and that the beliefs and practices in other religions, therefore, are false to the extent that they are in conflict with this religion” (westerlund, 2003:266). in this way relying on old beliefs, the exclusivist approach is built on, emphasizing the historical quarrel among different religions. the conflicting nature of beliefs leads netland´s analysis to a solution. according to him, “where the claims of the scripture are incompatible with those of other faiths, the latter are not to be accepted as truth” (netland, 1999:80). this means that what is not according to the christian religious tradition is false and has to be neglected, avoided and rejected, and this relates the inner exclusivist views of the author. similar opinions are made by other authors, among which is kärkkäinen, who introduced the terms of ecclesiocentrism, christocentrism and theocentrism (kärkkäinen, 2003). according to the author, the centrism of christian beliefs makes the faith exclusive. in this way, both netland and kärkkäinen advocate for the exclusivist approach and both points of view are heavily anchored in christianity. additionally, both authors agree to replace the concept of exclusivism by a more neutral term such as “particularism” and “restrictivism” (tuggy, 2015), as the original term had a strong negative connotation. such an intention was due to the criticisms that the authors received and the proposal for a softer concept was intended to increase the acceptance of their point of view. while particularism points out the specificity of different religions, being used in exclusivist terms it maintains the idea of one religion being better than the other. the same happens with “restrictivism” that keeps on emphasizing that imposing and eliminative character. the effort to “polish” the concept might not help properly as it still keeps the mark of the original meaning: to make a distinction between the different categories, to separate and advocate for a one and only supremacy. from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 144 iii. a theoretical overview of pluralist perspective differently, from exclusivism, the pluralism ideal is mostly used for asserting the positive value for many or most religions. predominantly, it embraces the idea that a peaceful co-existence of different religions is possible. furthermore, the pluralistic approach to religious diversity advocates for an egalitarian attitude and a wide acceptance towards other religions, and considers that, within bounds, one religion is as good as any other. the pluralist approach came into the contemporary panorama as a natural consequence of increased diversity and was characterized by more and more plural societies in linguistic, cultural and religious terms (ruiz vieytez, 2007:9). furthermore, “pluralism is both a fact and aspiration… it refers to the reality of religious diversity in democracies and a commitment to engaging that diversity in ways that support citizens´ religious freedom and the common good” (soper et al. 2017:229). in this way, the plural realities gave birth to different elaborations of terms and meanings but with one outstanding characteristic: contextual bias. in some contexts, religious pluralism means an informed, tolerant and appreciative or sympathetic view of the various religions. while in other contexts, religious pluralism is a normative principle requiring that people of all or most religions should be treated the same (tuggy, 2015). it is necessary to underline that pluralism came in to reinforce the changes that the democratic societies faced as well as advocated the emerging needs of new cultural and religious institutions. in this way the changing landscape of church-state relations is unquestionable in the last decades and “there was seen a growth in the fact of pluralism throughout the world…” followed by an “overall decline of religious affiliation and activity in western democracies, but also the emergence of new movements and resurgence of older ones” (soper et al. 2017: vii). these contrasting happenings, the decline from one side and the emergence from the other, draw us back to the question and place of religion in some people´s lives as well as the question of religious accommodation in pluralist societies. as it has been mentioned earlier, religious diversity accommodation requires from a real democracy to be equipped with some fundamental values to be obeyed, such as respect and tolerance towards religious otherness. although the religious pluralism is a reality for many european states, many of them still struggle for an appropriate religious accommodation policy. due to this situation, there is an increased need to look at the existing research in the area of pluralism with the main aim to lay the path for “new” accommodative experiences of the religious minorities. to start with the work of j. hick can help. hick was an advocate for a tolerant view towards various religions. he displayed a strong sympathy for the pluralistic ideal and considered that no religion stands out above the rest, and none can claim to be the only context for authentic religious experiences. the different religions are, as hick defined them, different responses to the same absolute ultimate (the real). in hick´s work, “the real” was used to refer to the ultimate in different religions and sometimes he used the following synonyms: “the ultimately real” and “ultimate reality” or even simply “the ultimate” or “reality” (hick, 1989). for the author, the real or the truth has mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 145 multiple faces and he argued that what we see represents just our subjective and historically influenced views. correspondingly, what is true for one might not be true for other religions as they have their proper, genuine truth. to put hick´s idea in a nutshell, one truth/religion is as legitimate as any other. in this way, the author not only recognizes the plurality of the real but he also argues that each person taken separately has only one and unique real. another author that is aware of the religious pluralism and tried to picture the future relation between religions is race. he recognized that “the future of christian theology lies in the encounter between christianity and other faith” (race, 1983: xi). due to several factors, the encounter in the european context was inevitable and because of this, it had to be tacked by researchers, recognizing and then trying to provide solutions. although the recognition of plurality of religious coexistence, hick uses the real in singular form, in order to underline the uniqueness of each religious view, because he “considered that there cannot be a plurality of ultimates but only one” for each person and who can bear different names (hick, 1989: 249). in this regard, amaladoss criticizes such an opinion, he observes that “to understand various religions in terms of the various names they give to god, all referring to the same reality, is rather simplistic and nominalistic”. later on, the author concludes that such a view “does not take religion seriously” (amaladoss 1992, 23). to clarify this critic, hick´s work provides some answers. more exactly, the “presence” of the real in different religious practices consists in the “availability of information, from a transcendent source, that the human mind/brain is capable of transforming into what is called a religious experience. and, similar with the awareness of the physical world, the environing divine reality is brought to consciousness in terms of certain basic concepts. these are, first of all, the concept of god, or of the real as personal, which presides over the various theistic forms of religious experience; and second, the concept of the absolute, or of the real as non-personal, which presides over its various non-theistic forms” (hick, 1989: 244). in this way, the author emphasizes the subjective interpretation of the real by human nature as well as their biased opinion in understanding the transcendent, due to which “the adherents of the major religious faiths experience the real through they're varying culturally shaped lenses” (hick, 1989: 240). if it is claimed that all religions have the same reality as their foundation, then one starts questioning, why it is understood in such vastly different ways. in this regard, vivekananda explains this through the differences in the natures of those who perceive the reality “we cannot deny that bodies acquire certain tendencies from heredity, but those tendencies only mean the physical configuration, through which a peculiar mind alone can act in a peculiar way. there are other tendencies peculiar to a soul caused by its past actions” (vivekananda, 2015: 21). emphasizing the cultural influence underlines that the adherents in most of the religious beliefs have only one center and experience the transcendent through the perspective of their own religious affiliation. while acknowledging this situation, hick explored his pluralistic hypothesis “that the great world faiths embody different perceptions and conceptions of, and correspondingly different responses to, the real from within the major variant ways of being human; and that within each of them the transformation of human existence from self-centeredness to reality-centeredness is taking place. the divine process of from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 146 transformation inside various religious traditions are seen by hick as alternative salvation “spaces” within which, or “ways” along which, men and women can find salvation/liberation/ultimate fulfillment” (hick, 1989: 240). in this way, the author´s call to reflect and accept the reality-centered transformation is the main premise that leads to the acceptance and peaceful co-existence of the religious plurality. in relation to the pluralists, kärkkäinen points out that they consider that other religions have the same legitimate means of salvation. the same author concludes that “pluralism involves both a positive and a negative element. negatively, pluralism categorically rejects exclusivism. positively, it affirms that people can find salvation in various religions and in many ways” (kärkkäinen, 2017: 3). while underlining the positive and negative aspects of pluralism, it should not be taken for granted that religious pluralism can be embraced easily, on the contrary, it requires a significant internal work of believers on understanding the doctrinal claims of their faith and how they see the external world. these seem the basic premises for the acceptance of religious pluralism. in fact, it should be no problem to accept plurality, as according to hick the religious affiliation is a “birth accident that passes on from one generation to another through the historical channels” (hick, 1989: 2). if these premises are understood and accepted then the peaceful co-existence of different religious beliefs might be indeed possible. nevertheless, for this change to occur the author underlines some necessary milestones. first of all, he suggests that the belief in the transcendent must start from the new acknowledgment of religious plurality and conceptual relativity. this means that religious beliefs must be seen as containing an immense variety of forms, and this vast and multifarious field of human faith constitutes our variously transparent and opaque interface with a mysterious transcendent reality. in order to achieve this, the intellectual challenge, according to hick, is granting to others a premise on which one relies oneself and in the equality of other religious experiences that in the end leads to the intellectual golden rule being obeyed (hick, 1989: 9). secondly, hick proposes to go beyond the dominant self-understanding of each religious tradition and to overcome the classical belief to be regarded as uniquely superior to the others. the proposal to challenge the past and present stereotypes and make one step further to acceptance, mutual understanding, tolerance, and respect represents a proposal for change or transformation of our classical and old views that could lead to the accommodation of all religious belief in the modern democratic societies. and last, he calls for a genuinely pluralistic change in the religious world by means of interpretation. acceptance and tolerance are directly linked to understanding and interpretation. if we start interpreting the world as many and with differences as hick rightly says “…deemphasize its own absolute and exclusive claims” (hick, 1989: 3). the three premises that hick underlines stress the need to transform the existing views and advance altogether with the changes of the modern world in order to build a peaceful co-existence among different religions and faiths. other scholars, as legenhausen builds on the idea of a hypothetical peaceful coexistence of religious pluralism. he considers, as well as hick, that many religions are equal regarding the central value(s) of religion (legenhausen, 2009). although mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 147 legenhausen shares the same pluralist ideal, he raises some criticisms of hick´s work, calling it reductive pluralism and radical in reference to the personal transformation from self-centered to reality-centered. the pluralism according to legenhausen is nonreductive and it is explained by “. . . the view that each of a number of religions has unique features through which god may guide people, even if there is no common essence to all religions” (legenhausen, 2006: 10). later on, the author concludes that this version of pluralism (called non-reductive pluralism): “. . . is able to avoid the objections raised against liberal or reductive pluralism while maintaining an attitude of tolerance and rejecting prejudice” (legenhausen, 2006: 13). in this way, legenhausen points out the increasing problem of prejudices that, in consequence, leads to discrimination and marginalization. moreover, he considers that: “to defend religion means to support, encourage and defend the dignity of others' faiths and practices to the greatest extent possible” (legenhausen, 2006: 16). although it is worth trying, he recognizes the difficulties and barriers fulfilling such a mission. in practice, the religious pluralism seems complicated but still, there are some examples. an intention to develop a tool that could accommodate the religious diversity can be the reasonable accommodation instrument, mentioned earlier. originally it had its origins in the antidiscrimination law, referring to the cases of direct or indirect discrimination, both in canada and usa. actually, it was first in the usa that the instrument emerged for the first time and it was in relation to the accommodation of religious demands/needs in their working environment.3 but it is in canada that the instrument had a greater development. as ruiz vieytez points out, it is canada and in particular, quebec where “this idea has found a fertile ground for the exercise of the competencies on migrant matters, for the recognition and preservation of the minority cultures” (ruiz vieytez, 2010:67). similar to the cases in the usa, the canadian reasonable accommodation emerged in the area of labor and related to religious needs.4 with the sentence over ontario human rights commission v. simpsons‑sears the reasonable accommodation instrument consolidated and developed in canada to reach a public discontent. the famous bouchard-taylor commission established in response to public discontent concerning reasonable accommodation, conducting an extensive consultation and formulated some recommendations to the government to ensure that accommodation practices conform to québec’s values. among the recommendations where the 3 the case of dewey v. reynolds metal company, united states court of appeals, june 4, 1970. “robert dewey, an employee of reynolds metals company, refused to work sunday overtime, as required by the collective bargaining agreement between his union and employer, because his church forbade sunday labor”. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5826&context=penn_law_review 4 the case of ontario human rights commission and theresa o'malley (vincent) v. simpsons‑sears limited. december 17, 1985. supreme court used for the first time the reasonable accommodation instrument in this case. “appellant o'malley alleged discrimination on the basis of creed against her employer, a retailer, because she was periodically required to work friday evenings and saturdays as a condition of her employment. appellant's religion required strict observance of the sabbath from sundown friday to sundown saturday. given this conflict, appellant accepted part-time work because a full-time position not involving work on saturday was not available to a person with her qualifications”. https://scc-csc.lexum.com/scc-csc/scccsc/en/item/101/index.do http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5826&context=penn_law_review https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 148 conclusion that any secular system achieves some form of balance between the following four principles: “the moral equality of persons; freedom of conscience and religion; the separation of church and state; and state neutrality in respect of religious and deep-seated secular convictions” (bouchard and taylor, 2008: 21). as it can be noted, two of the above principles define the private equality, while the other two refer to the state authority that has the power to guarantee the first two. thus, guarantee a reasonable accommodation of the emerging needs. in conclusion both bouchard and taylor advocate for an open secularism that seeks to develop the essential outcomes of secularism by defining institutional structures. such an approach seems appropriate and is a practice to be considered by the european states in order to accommodate the religious diversity. there is no doubt that the theory and practice should go together, otherwise it is a waste of empirical evidence and theoretical efforts. as garcía inda mentions the binary of empty theories and blind empirical evidence represents the main barrier for the structure of a sociological practice and thought that could lead to the development of a science capable to build up on its biggest exits (garcía inda, 2001). in order to fill in this gap the theoretical overviews described earlier are exemplified in the following chapter with the examples of the integration policy offers. iv. integration policies offer – pluralist or exclusivist? the integration of new minorities has been a topic of public debate for the last few decades. this made the policymakers and practitioners plan and implement integration measures for new minorities and their descendants, and sometimes for the whole population of certain areas. in these policies, a new field emerged: the issue of religion. consequently, the exploration of this area has taken a new importance and “many governments have transferred some policies and programs previously run by the state agencies to private, usually non-profit organization, many of which have a religious history or orientation” (soper et al., 2017: 2) in order to supply the new demand. since western societies become more plural, the demand for particular services grows and the issue at stake becomes “whether or not each state will accommodate the religious needs of group differences through public finance of religious schools and/or social service organizations. this is necessary because the public aid reinforces group identities, which gives greater recognition to the fact that religious and ethnic life is lived out through community organizations” (soper et al., 2017: 245). although there is an increased necessity to develop such policies, the experience of european states varies. if we look inside the european states there are different practices on religious pluralism accommodation. some are deeply rooted in the exclusivist approach while other, to some extent, try to accommodate the religious diversity and some reasonable accommodation measures are provided. such instruments, in the article, have been called segmented practices of accommodation and as it will be exemplified later they relate to only some segments of the policy offer, like the place of religion in the public sphere, religious education in public schools and religious clothing. mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 149 to start with, the religious education in the public school represents a good example of analysis in order to see how the exclusivist and pluralist approaches have been used in different geographical contexts. in this regard, maréchal identifies four basic models of organization of religious instruction in public schools in europe: a secular approach which refuses religious instruction (in the context of the present article it is exemplified through exclusivist approach, used by integration policy); a plural approach which allows teaching about different religions; a preferential and restricted approach which offers as well as authorizes instruction in a given religion, but privileges instruction in the dominant religion in that society; and a culturalist and historical approach to religion (maréchal, 2003: 42). these models of organization can be classified or divided into soft and hard models of religious instruction´s organization based on the effect these can have on religious minorities. as the present article focus on the two extremes (exclusivism and pluralism approach) from the maréchal models, only two (secular and pluralist) will be discussed and exemplified in the article, is considered the most relevant to contribute to the debate. in this way, the first secular or laicism approach in regards to the religious education in the public schools it is considered exclusivist because it “consists in refusing instruction in a particular religion within the curriculum, which as state-sponsored is considered incompatible with any one religion” (maréchal, 2003:42). a pure (hard) implementation of this model could be the example of ex-soviet union states where any religion was prohibited and excluded from the schools. whereas in today europe, this approach finds it’s softer pragmatic application in some policy offers that deal with new minorities´ management. in many of these policy offers, the exclusivist approach was nicely veiled inside the integrative policies. for some countries, the new minorities once arrived into the new land, it has been considered that they have to adapt to the cultural context or leave at the end of a short-term working contract. since none of these have happened, there appeared the need to integrate the new minorities and european states, depending on their traditions, developed some offers with different degrees of restrictive/exclusive policy measures. such measures had the main aim to harmonize the society or in other words to embrace the majority´s identity for all, or to make the “others” forget their origins, faith, and culture and adopt the hosting one. in the particular case of public religious education, france is a good example due to the choice of the secular concept. because of the predominance, it has within the french debate and through the uncontested principle of state neutrality in religious matter. within such a framework, no program of studies of religion exists in the french public schools, except for the partial and indirect exposure gained in courses of general history or geography, or language of origin classes (maréchal, 2003). as a result of this situation, in france, “the intellectualization of islam takes place outside the family, through selfinstruction when it is practicable and even more through meetings and conferences organized by associations”(babés, 1997:137). there is an evident paradox here. first of all, the state neutrality does not conform to the people needs. consequently, to satisfy the religious needs some parallel, not regulated and not supervised religious schooling takes place. such a “solution” cannot be sustainable, as it reemphasizes the marginal and deprived status of the religious minority, with all negative consequences that did not wait from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 150 to appear in franch society. but, such a situation proves that religion is part of identity construction of many individuals and therefore cannot be excluded from the integration policies. on the contrary, it should be incorporated as an integral part of such policies. another area of interest is the “french church-state relationship, based on the separation of religion from the public sphere” (soper, 2017: 51), france was the first to introduce some restrictions in regards to cultural or religious clothing. an example is the french law “loi interdisant la dissimulation du visage dans l'espace public” n° 2010-613 dc from 7th of october 20105, to prohibit the wearing of clothing covering one's face in public sphere. although the ban applies to scarves, masks and motorcycle helmets, it particularly affects muslim women who wear the islamic veil or niqab. due to which, the law has been commonly called the “burqa ban” or burqa exclusion. both of the above examples of exclusivist approach towards religious accommodation are rooted in the french assimilation model. initially, it comes from the french ideology during the colonial time and which in the modern time started to be applied in reference to the new minorities. as geddes states, such an approach was supposed to make the new minority equal to the rest and mainstreamed into the french culture. however, the non-discriminatory and egalitarian policy did not work as expected and rioting altogether with the terrorist attacks, revealed the divisions of race, culture, ethnicity, and religion, among migrants and their descendants. “these are seen to show that french emphasis on assimilation had not addressed serious problems of youth alienation and unemployment and that discrimination, hate, islamophobia are important concerns. these events clearly show from one side, the profound unease at the institutional level when dealing with issues related to ethnicity, culture or religion and from another side, the disconnect between people and their political leaders” (geddes, 2016: 48). the above examples prove that the use of exclusivist approach in integrative policy offer cannot serve as a sustainable solution for the religious pluralism and it urges to be re-considered and addressed by a pluralist approach to policy offer. although far from a real pluralist, inside european societies can be found some examples of countries that tried to accommodate religious diversity through different policy offers, or as has been mentioned earlier, some segmented pluralist policy offers. an example, following the previously mentioned maréchal models, is the plural approach to religious education. this model, as claimed by the author, “tends to offer instruction in various faiths in public schools” (maréchal, 2003: 43). such an open space for new minorities’ descendants may offer a sense of equality and belonging, and make them feel part of the majority. this commitment of the public sector comes usually through a formalized relation of state – faith kind of “social contract”, which can take the form of 5 in its decision number 2010-613 dc of october 7, 2010, the french constitutional council found the law prohibiting the wearing of clothing covering one's face in public spaces constitutional, with one reservation. (decision no. 2010-613dc du 07 octobre 2010, loi interdisant la dissimulation du visage dans l'espace public, constitutional council official web site (oct. 12, 2010), http://www.conseilconstitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis1959/2010/2010-613-dc/decision-n-2010-613-dc-du-07-octobre-2010.49711.html) the reservation applies to places of worship open to the public; in such places, the prohibition is not applicable. http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010-613-dc/decision-n-2010-613-dc-du-07-octobre-2010.49711.html http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010-613-dc/decision-n-2010-613-dc-du-07-octobre-2010.49711.html http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010-613-dc/decision-n-2010-613-dc-du-07-octobre-2010.49711.html mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 151 an agreement signed between the state and various religions´ representatives. the main aim of this action is to provide religious education, subsidized by the state. in the particular case of religious education on islam, “spain and belgium are the only countries who have accomplished it officially” (maréchal, 2003: 43) due to which the spanish example will be described further. in spain, although the state is non-confessional, it does have agreements with the holy see and recognize some specific rights to the catholic church. some rights, but not all, have been extended to other faiths such as islam, evangelical, and jewish. despite the legal status of islam, recognized through the law 26/1992 on the approval of the agreement of cooperation of the state with the islamic commission of spain from 10th of november 19926 there have been some difficulties to establish chaplains in prisons and the military and to introduce the study of islam inside the school curricula. moreover, the curricula for primary schools7 was elaborated and published in 2014 but only after two years, in 2016, the spanish government has published the new guidelines for teaching islam in public primary education8 altogether with secondary and high school education.9 furthermore, the content of the curricula points out that it was developed as a way to prevent muslim children and youngsters from being radicalized by exposing them to a "moderate" interpretation of islam. whereas, the legal basis for teaching islam in spanish public schools is dated back inside the article 27.3 of the spanish constitution from 1978, which establishes that although spain is non-confessional, "the state guarantees to the parents the right for their children to obtain a religious and moral education which conforms to their own convictions".10 although this legal provision, muslims (and roman catholics) have long understood this to mean that children are entitled to a religious education in public schools but it was possible only during the last years in the case of muslims (kern, 2016). the access to public teaching of islam in the spanish case, in this particular period, seems to follow the overwhelming european fear on radicalization and terrorism and not being led by the aim to develop a proper integrative policy instrument of religious pluralism. another country of interest in regard to religious accommodation is the netherlands. the country is particularly well suited as an example due to the fact that 6 ley 26/1992, de 10 de noviembre, por la que se aprueba el acuerdo de cooperación del estado con la comisión islámica de españa. https://www.boe.es/diario_boe/txt.php?id=boe-a-1992-24855 7resolución de 26 de noviembre de 2014, de la dirección general de evaluación y formación profesional, por la que se publica el currículo del área enseñanza religión islámica de la educación primaria. boletín oficial del estado. núm. 299 jueves 11 de diciembre de 2014 sec. i. p. 101207 https://www.boe.es/boe/dias/2014/12/11/pdfs/boe-a-2014-12886.pdf 8 resolución de 14 de marzo de 2016, de la dirección general de evaluación y cooperación territorial, por la que se publica el currículo de la enseñanza de religión islámica de la educación infantil. boletín oficial del estado. núm. núm. 67 viernes 18 de marzo de 2016 sec. i. p. 20517. http://www.boe.es/boe/dias/2016/03/18/pdfs/boe-a-2016-2714.pdf 9 resolución de 14 de marzo de 2016, de la dirección general de evaluación y cooperación territorial, por la que se publican los currículos de la materia de religión islámica en educación secundaria obligatoria y bachillerato. boletín oficial del estado, núm. 272, de 12 de noviembre de 1992, p.38214. http://boe.es/boe/dias/2016/03/18/pdfs/boe-a-2016-2715.pdf 10 la constitución española de 1978. http://www.congreso.es/consti/constitucion/indice/titulos/articulos.jsp?ini=27&tipo=2 https://www.boe.es/diario_boe/txt.php?id=boe-a-1992-24855 https://www.boe.es/boe/dias/2014/12/11/pdfs/boe-a-2014-12886.pdf http://www.boe.es/boe/dias/2016/03/18/pdfs/boe-a-2016-2714.pdf http://boe.es/boe/dias/2016/03/18/pdfs/boe-a-2016-2715.pdf http://www.congreso.es/consti/constitucion/indice/titulos/articulos.jsp?ini=27&tipo=2 from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 152 “religious pluralism altogether with tolerance and multiculturalism for decades has been synonymous with the dutch context” (maréchal, 2003: 48). according to the dutch education act of 1984, parents have the right to obtain religious education for their children in public schools. in this way, “the dutch education act gives the right to any group of parents that wishes to establish schools based on a particular religious or educational ideology to do so. these schools supply mainstream education with their own perspective and are financed by the dutch government. some muslim parents did take this legal opportunity to ensure the religious education of their children”(shadid and koningsveld, 1992: 104). in 1988 the first two islamic schools were established and by 2014 there were 43 islamic schools in the netherlands (dronkers, 2016: 7). although this opportunity, the islamic schools, according to shadid and koningsveld face many problems: like few muslim teachers qualified to teach in the dutch educational system, lacking islamic didactics and educational materials, students coming mainly from the lower social classes etc. (shadid and van koningsveld, 1992). these difficulties of the schools question their proper functioning and sustainability over time but as an example of accommodation of religious pluralism in public school it is worth mentioning it and the efforts should be made to improve it. although the above example was presented separate, this experience is a part of a broader policy on religious pluralism accommodation rooted in the integration policy of the country. first of all, the netherlands is a country with a longstanding reputation for its liberal attitudes toward immigrants. to many, the large dutch muslim population, from morocco, suriname, turkey and the antilles, is an outstanding testament to that fact (barahimi, 2009). in addition, the netherlands has been known worldwide for its multicultural approach to immigrant integration. some even called it a multicultural model. the basic premise of this model is that dutch policies have been driven by a coherent and consistent belief in the idea that the recognition and accommodation of cultural, ethnic and religious groups promote their successful integration into dutch multicultural society (duyvendak, 2010). however, a key trait of the dutch “multicultural model is its tendency to institutionalize cultural pluralism in the belief that cultural emancipation of immigrant minorities is the key to their integration into dutch society” (duyvendak and scholten, 2010: 41). additionally, the dutch model is based on the country’s tradition of pillarization or the dutch pillarized system and encompassed the division of society along cultural and religious lines. within this system, minorities could have their own distinct political and social organizations, which allowed them to participate in cultural life and policymaking. the main aim was to achieve social integration through preserving, respecting and empowering subcultures (spiecker and steutel, 2001). even after the decay of this system, scholars claim that the netherlands remained “distinctive” (statham et al., 2005) from other european countries, “because it continued to encourage cultural pluralism by giving broader rights and freedoms to minority groups, including muslim minority” (erisen and kentmen-cin, 2017: 85). in these terms, the netherlands “is viewed as a multi-ethnic country with looser requirements for naturalization” (erisen and kentmencin, 2017: 85) comparing with other european states. furthermore, the netherlands is still an utmost example of a multicultural vision of integration. “the country allows mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 153 immigrants easy access to formal social and political rights while at the same time, facilitating expressions of foreigners’ own cultural identity with the help of the state… organizations and activities based on ethnic grounds are still generously supported – directly and indirectly – by the government” (koopmans, 2007: 4). nevertheless, the dutch model is not perfect. due to which the dutch multiculturalism has been criticized and “blamed for various adverse effects” (duyvendak and scholten, 2012: 268). some authors consider the dutch model that it “served as a policy of cultural segregation, forcing muslim immigrants to the periphery of society where they congregate together, forming their own religious, sports and political organizations” (barahimi and ostowar, 2009: 76). a similar opinion has rath. he considers the “dutch multicultural model a product of a technocratic community of experts and policy-makers and deconstructs the ideological principles on which it was based” (rath, 1991: 121). according to the author, there are remarkable similarities in the problematizing of some fractions of the working class and that of immigrants. he claims that both anti-social families from the “lowest social classes” and ethnic minorities “are seen by the rest of society as people with a lifestyle that deviates from that of the middle class ideal type, as people who do not adequately conform to the dominant norms of normal society behaviour, as backward people with a lifestyle of an earlier preindustrial period” (rath, 1991: 166). this minorities’ paradigm adopted by the dutch authorities from one hand legitimizes the government intervention on ethnic minorities and on the other hand prevent the minorities to participate due to their socio-cultural disadvantages. particularly this leads to further “minorization” of minorities and it is due to it that ethnic minority policy failed in the netherlands (rath, 1991). on the same line of thought are sniderman and hagendoorn who claim that “the labeling of collective identities has inadvertently deepened socio-cultural cleavages in society rather than bridging these differences” (sniderman and hagendoorn, 2007: 269). the analyses of the model and its critics lead to the conclusion that although there were premises for a proper reasonable accommodation of minorities, the model did not evolve and it created some parallel pillars of many religions together that did not or had little chances to interact. according to barahimi and ostowar, this lack of interaction paid two main negative consequences. from one side, it increased prejudices of unwillingness to integrate and increased marginalization and the communities build their own and parallel enclaves in the main society. whereas, the growth of muslim networks has only increased the fear of islam radicalization and reinforced the dutch society’s perceptions about their unwillingness to integrate (barahimi and ostowar, 2009). as result of this, the dutch model, although it tried to integrate the pluralistic approach, it did not yet find a perfect balance in order to accommodate the needs of majorities and minorities. v. conclusion the negative consequences of religious minorities’ disintegration advocate for the need to develop further actions that could effectively accommodate religious minority´s identities. an outstanding argument is that religion is part of identity construction of many individuals and groups and therefore cannot be excluded from integration policies. on from exclusivism to pluralism: a reflection on european religious minorities the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 154 the contrary, it should be incorporated as an integral part of such policies. such a path requires a change of paradigm that could slowly move the policy focus from exclusivist to pluralist with the aim to create a tolerant and equalitarian space for all religious denominations present in the plural societies and with equal premises to enjoy to its fullest and deepest extent. in this regard, the pluralist approach seems to be a possible solution but its practical implementation still needs to be developed. although the european states are plural, they possess only some segmented practices in regards to the religious pluralism, as it was exemplified in the article. moreover, the lack of accommodative solutions can lead the states to face more and more unquiet situation, complex conflicts and with growing cultural clashes. the pluralist approach has the right premises to solve these situations but it needs to be properly developed. a path to this could be the “reasonable accommodation” instrument, with a common and shared framework and with a certain degree of flexibility, to be able to adapt to future social and cultural changes. it has to be underlined that this work has to engage a multitude of actors from different levels: religious believers, policy makers, and academia. the religious leaders could contribute to solving the conflict between the pluralist ideal that all religions are equal and the self-understanding of each separate faith. acceptance of religious pluralism seems to require a significant rethinking of how believers generally understand their doctrinal claims and the worldview of their religion. once this is worked out then the policymakers could develop or improve the policy offers of religious accommodation. another idea to be examined is the “proposals for institutional pluralism due to their actual impact on people’s lives—for how they enable or inhibit people’s ability to exercise agency and participate democratically— rather than be dismissed on the basis of their consistency with this or that abstract model of secularism” (kymlicka, 2009: 2). institutions, in general, and public ones in particular, have the tools to develop and implement plural accommodation policies that could lead to a better management of religious diversity (bouma, 1999). in this regards, bader distinguishes the government and the governance of religious diversity in the studies of a mechanism of action coordination. according to him “the perspective of governance is narrower: it includes markets by focusing on regulation, including mechanisms of action coordination and enabling non-market (self-) regulation. the perspective of governmental regulation is narrower still. it focuses on one actor, i.e. the state, and on action coordination by public hierarchy” (bader, 2007: 50). academia, on the other side, could come with tailored models of religious pluralism accommodation considering the historical, geographical and social structure of each cultural society and that could nourish the policy proposal with the exact needs of religious minorities´ accommodation. this joint work could solve the problem of the existing gap between policy offer and religious minorities needs. moreover, it could help to develop a constructive conception of religious tolerance. thus, the proper pluralist approach in policy proposal can help religious minorities enjoy more the citizenship and belonging, can help to build more inclusive societies and become a revolutionary mariana rosca the age of human rights journal, 10 (june 2018) pp. 139-158 issn: 2340-9592 doi: 10.17561/tahrj.n10.7 155 paradigm on religious minorities´ 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theology of religion: apologetics through polemics.” journal of religion in africa 33(3): 263–78. doi: https://doi.org/10.1163/157006603322663505 wilson, bryan r. 1966. religion in secular society: a sociological comment. london: c.a. watts ltd. https://doi.org/10.1177/1468796805058092 https://doi.org/10.1163/157006603322663505 i. introduction ii. a theoretical overview of exclusivist perspective iii. a theoretical overview of pluralist perspective iv. integration policies offer – pluralist or exclusivist? v. conclusion vi. references the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 63 a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) hakan kolcak 1 abstract: until the very early 2000s, the kurds had suffered from numerous turkification policies; however, after the justice and development party (adalet ve kalkınma partisi, akp) came into power in 2002, a new political process aimed at enhancing kurdish ethno-cultural rights was initiated. as a result of this process, the historical harm done by the early republican regime, the three military administrations and their successor governments has been reduced. notwithstanding, there are still some restrictions that can be removed through a new constitutional reform package. by employing the methods of comparative politics and constitutional law, this article gives the following suggestions for the reform package. first, in the name of laying a foundation for bilingual education, the reform package may delete or amend article 42(9) of the turkish constitution, according to which the kurds are now obliged to receive education in turkish, hindering them from being taught in their mother tongue. second, it may revise article 3(1) of the constitution, under which turkish is the sole language of the state. the new version of article 3(1) may recognise the kurdish language and its dialects as national or regional official languages. finally, the constitutional reform package may expand the scope of article 134, pursuant to which only turkish cultural, historical and linguistic features can now receive public funding and be protected constitutionally, and it may grant the same privilege to kurdish characteristics. keywords: turkey, akp, kurds, ethno-cultural rights, kurdish question summary: i. introduction; ii. historical overview of turkey’s policy towards kurdish ethno-cultural rights; iii. the akp’s policy toward kurdish-ethno-cultural rights; iv. the akp’s trouble-free policies; v. the akp’s problematic policies; vi. the akp’s silence on two issues; vii. conclusion. i. introduction kurds, a tribal people with an origin from the zagros mountains in northwest iran who has distinct characteristics, have maintained a strong ethnic identity despite of the fact that they are recognised as the largest group of stateless people in the world (mcdowall, 1996). kurds do not have a single common language, but the most widely 1 phd candidate in human rights, university of essex, united kingdom (hakankolck@hotmail.com). a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 64 spoken kurdish dialects are sorani and kurmanji which are generally mutually understandable. kurmanji is spoken predominantly in syria, the caucasus and turkey while sorani is mostly spoken by iranian and iraqi kurds (yildiz and muller, 2008). turkish-citizen kurds are concentrated into the east and south-east, and constitute a majority population in provinces there including hakkari, siirt, bitlis, diyarbakir, mardin, van, agrı and mus. a kurdish population also dominates the provinces of adıyaman, tunceli, malatya, elazıg, sanlıurfa, kars, bingol and erzincan. most turkish-citizen kurds speak kurmanji, but zaza is also spoken in the northwest of the kurdish-populated region, mainly in tunceli and elazıg provinces (yildiz and muller, 2008). during the nation-building process of the republic of turkey, founded in 1923 in the wake of the collapse of the ottoman empire, early republican elites implemented various turkification policies towards the kurds as well as the other numerically inferior and non-dominant communities inhabiting in anatolia, the roma, lazes, arabs, circassians to name but a few only. most groups were affected by such coercive assimilation policies and became assimilated; however, the policies did not succeed in assimilating the kurds; instead, stimulated them to make rebellious attempts with the main purpose of separating the kurdish-occupied southeastern anatolia from the unitary republic. although the number of turkification policies dramatically increased following the military coups staged in 1960, 1971 and 1980, turkey began abandoning its assimilationist and repressive policies when president turgut özal criticised the legal hindrances to the adoption of kurdish ethno-cultural rights in 1992. nevertheless, the governments coming to power in the 1990s did not make any concrete strides to abolish traditional assimilation policies. after the justice and development party (adalet ve kalkınma partisi, akp) came to power alone in 2002, however, a new process aimed at enhancing kurdish ethno-cultural rights was initiated. from 2002 to 2014, during which the akp won three parliamentary elections and came to power alone, the governments hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 65 introduced a significant number of reforms. while many of the reforms have been implemented properly, the others are still encountering an implementation problem. there are also a few areas in which akp governments did not commence a reform process. as an interdisciplinary study employing the methods of comparative politics and constitutional law, this article is organised in the following fashion. the first section will present a historical overview of turkey’s policy towards kurdish ethno-cultural rights by paying a particular attention to the legal and political history of the country. having understood the background, the article will turn its attention to the akp’s policy toward kurdish ethno-cultural rights. after listing the reforms initiated by the akp between 2002 and 2014, the article will examine how such reforms have been implemented and whether the scope of the reforms should be broadened. in this regard, the article will characterise the akp’s reforms as either trouble-free or problematic. the akp’s silence on two important issues – the official use of kurdish and public funding and constitutional protection for kurdish features – will then become central to the article’s agenda. by employing the methods of comparative politics and constitutional law, the article will offer not only some potential solutions for the akp’s problematic policies, but also some suggestions for the future governments that may embark on a reform process for the issues on which the akp has kept silent. ii. historical overview of turkey’s policy towards kurdish ethnocultural rights after the signing of the treaty of lausanne (1923), the founding treaty of the republic of turkey, early republican elites began to implement basic principles of turkish foreign policy facilitating the realisation of the nation-state the elites had developed. at the outset, the elites desired that a new state should not be a continuation of the ottoman empire whilst this was the case during the war of independence (191922), when the elites were “seeking statehood for the multicultural entity of anatolia, heir to the ottoman empire” (ergil, 2000: 124). following the war, however, what the a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 66 elites decided to create was a european-style nation state constructed upon universal principles of secularism, pragmatism, rationalism and a free market economy. the elites, by supporting french-type secularism (la laïcité), aimed at purifying the state from religious values which represented philistinism, poverty and backwardness. on this basis, the caliphate and sultanate were nullified, enabling the new-born regime in ankara to initiate reforms aimed at spreading western-style standards (efegil, 2011: 29). the newly-formulated republican government supported the cultural togetherness policy. in light of this policy, turkish identity was embraced as the main source of national unity and non-turkish features were subdued through denial, leading to a controversial in lieu of accommodative relationship between ethnic turks and kurds (robins, 1993; kurban, 2003; somer, 2004; ensaroglu, 2013). in 1923, the members of the clandestine organisation azadi initiated a rebellious movement on the grounds of the republican injustices, including some restrictions on kurdish ethnocultural rights such as the prohibition of the use of kurdish in school (strohmeier, 2003: 91). in 1925, azadi’s rebellious movement turned into a revolt, namely the sheik said riot that was end with sheik said’s execution on 29 june 1925 (see strohmeier, 2003: 91-2; celik, 2010; ergin, 2014). the early history of the republican state also witnessed some other kurdish rebellious attempts, such as the ararat riot (see strohmeieer, 2003: 95-99; al, 2015a) and the dersim resistance (see strohmeir, 2003: 130; al, 2015a). since the cultural togetherness policy was built on the elimination of ethnic characteristics, when the kurds demanded to maintain local cultural traditions, the government considered such demands as threats to the territorial integrity and political unity of the republic. in other words, ankara described kurdish rebellions as ethnic secessionist movements and public security matters, and therefore sought to resolve the issue through implementing military measures. the government ultimately forced ethnic kurds to submit a turkish identity via putting aside their local ethno-cultural identities. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 67 throughout the late 1920s and 1930s, the republican regime mobilised all its forces to popularise the turkish language, and propagate the ideas and products of the language revolution (o’driscoll, 2014). for instance, the ‘citizen, speak turkish!’ (vatandaş, türkçe konuş!) campaign, initiated in 1927 and peaked in 1937, is a “linguicidal” policy – a genocidal attempt made with the purpose of exterminating minority languages – since it condemned the use of languages other than turkish (zeydanlioglu, 2012: 103). a significant official institution at the heart of the language revolution was the turkish linguistic society (türk dil kurumu) established in 1932 with the task to generate a cohesive national language to form a homogeneous nation. the goal of the linguistic society was the creation of pure turkish (öz türkçe) by eliminating non-turkish (mainly persian and arabic) words and influences and in their place discovering new words or integrating ‘pure’ turkish words assembled from several turkish dialects (morin and lee, 2010; al, 2015b). the linguistic society was part of an arsenal of early republican institutions such as the turkish historical society (türk tarih kurumu), established in 1931 with the essential purpose of writing and disseminating the new national history of the turks (hanioglu, 2012; zeydanlioglu, 2012). these and other institutions allowed the republican state to maintain control over the nation-wide knowledge production. in support of the cultural togetherness policy, prime minister i̇smet i̇nönü prepared his well-known kurdish report in 1935, according to which an assimilation policy was required for the accommodation of the kurds (efegil, 2011). following i̇nönü, the public inspector abidin özmen prepared a similar report that identified turkish as the most critical tool in assimilating the kurds (al, 2015b). in accordance with these reports, the officials start implementing turkification policies towards the kurds: the prohibition of the use of any language other than turkish in school and in court; the ban on the use of non-turkish surnames; the prohibition of the use of the word ‘kurd(s)’ etc. (see kurban, 2003, 2004; yegen, 2009). while the kurds suffered from a significant number of turkification policies under the single-party period (from 1923 to 1945), ruled by the republican people’s a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 68 party (cumhuriyet halk partisi, chp), the number of assimilationist policies dramatically increased in the second half of the twentieth century when turkish politics witnessed three military interventions (kolcak 2015). in april 1961, general cemal gürsel, the leader of the 1960 coup d'état, lauded a book written by mehmet şerif fırat, who asserted that the kurds were turkish in origin (gunter, 1988). 2 a month later demonstrations took place in bitlis, deykir, diyarbakir, mardin, siverek, and van in which ethnic kurds proclaimed their distinct identities (kinnane 1964, pp. 32-3). moreover, journals publishing some articles on the kurdish language, folklore and literature –new path (riya newe), origin of the tigris (dicle kaynağı), tigriseuphrates (dicle-fırat), voice (deng) and world of peace (barış dünyası)– were all banned (gunter 1988). just after the 1971 junta, giving non-turkish names to newborns was prohibited (yegen 2009). the 1980 military regime, on the other hand, exacerbated the political and cultural repression of kurds by adopting new laws such as the ban on the explanation, publication and broadcasting of thoughts in any language other than turkish; and the confiscation of films, books and newspapers relating to kurdish characteristics (kurban, 2003; yegen, 2009). more importantly, turkey’s current constitution of 1982 was drafted under the aegis of the military tutelage which imposes several restrictions on the exercise of kurdish ethno-cultural rights, including those pertaining to mother tongue education, the official use of kurdish, and the constitutional protection of kurdish linguistic, cultural and historical features (kolcak, 2015). at the governmental level, the cultural togetherness policy was criticised by president turgut özal for the first time in 1992 at which he not only acknowledged the existence of the restriction on the exercise of kurdish ethno-cultural rights, but also underlined the requirement for their adoption in the domestic legal framework. after the sudden passing away of the president, however, turkish governments re-embraced the policy, and did not take any serious steps to improve kurdish ethno-cultural rights until 2002 when the akp came into power. 2 the name of the book mentioned is the eastern cities and the history of varto (doğu i̇lleri ve varto tarihi), first published in 1948, but republished in 1961, 1970, 1981, 1983, 1996, 1998, 2007 and 2013. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 69 iii. the akp’s policy toward kurdish-ethno-cultural rights the akp’s policy toward kurdish ethno-cultural rights is indeed rested upon the 1991 kurdish report prepared by the welfare party’s (refah partisi, rp) istanbul’s provincial head, under the leadership of recep tayyip erdoğan, who would set up the akp in 2001. unlike military elites and state bureaucrats, the report considered southestern anatolia as kurdistan on a historical territory-based approach. it also underscored the impossibility of finding a resolution by using military or security measures against the demands for kurdish ethno-cultural rights. it was elaborated in the report that most kurdish-origin citizens did not dream of independence from turkey; instead, what they desired is merely a free practice of their ethno-cultural rights. for ethnic kurds, the official recognition of their identity and culture was much more significant than independence. the report offered the following suggestion on the relevant issue: turkey should immediately abolish the traditional republican approach towards anatolian diversity, and then remove the restrictions on the exercise of regional ethno-cultural rights, including those concerning the use of kurdish in schools and the media, and the development and protection of kurdish characteristics (hürriyet, 2007). after the 2002 general election, in which the akp won a landslide victory, the officials advocated policies parallel to those of the rp’s report. in support of these ideas, prime minister erdoğan delivered an audacious speech in the kurdish-populated province of diyarbakir in august 2005 in which he approved the multicultural character of the anatolian peninsula and promised that regional and local ethno-cultural characteristics would be freely tolerated (nykanen, 2013). although these statements impressed the kurds at that time, the akp government did not make a serious and concrete stride to compensate the traditional harm until 2007. upon the akp’s second landslide victory in the 2007 general election, however, the government introduced demokratik açılım –a government policy aimed at increasing the level of turkish democracy via enhancing basic human rights and freedoms, and regional ethno-cultural rights. the akp government escalated its efforts by taking into consideration its two specific programmes in the following years: (1) the kurdish initiative (renamed as the a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 70 national unity and fraternity project), initiated in 2009 with the aim of enhancing kurdish cultural and linguistic rights; and (2) the peace process, started in 2012 with the main goal of disarming the kurdistan workers’ party (partiya karkêran kurdistan), a terrorist organisation formed in 1978 with the essential purpose of creating an independent kurdistan in southestern anatolia. having presented the base of the akp’s policy, let me now start to note its attempts toward enhancing kurdish ethno-cultural rights between 2002 and 2014. kurdish broadcasting rights. before the akp entered turkish political picture, the first attempt toward the liberalisation of kurdish broadcasting rights was indeed made through the 2001 constitutional reform package which had been adopted as an element to fulfil the copenhagen criteria essential for turkey’s european union (eu) membership. the package removed the limitation on the usage of any language prohibited by law in the expression and dissemination of ideas in the broadcasting media (law no. 4709/2001, art. 9). in accordance with this constitutional amendment, the third eu harmonisation law permitted for the first time to broadcast in “different languages and dialects traditionally used by turkish citizens in their daily lives” (law no. 4771/2002, art. 8). to implement, however, a newly-issued regulation of 2002 introduced such restrictions as direct state control over broadcasts, time limitations for broadcasts, and requirements for simultaneous and subsequent turkish subtitles and translations for television and radio programmes (kurban 2007). the 2004 regulation of the supreme board of the radio and television (radyo ve televizyon üst kurulu, rtük), issued for the implementation of article 14(2) of the sixth eu harmonisation law (law no. 4928/2003), which allowed kurdish private broadcasting, did not remove any restrictions introduced in its previous counterpart (kolcak, 2015). after the statefunded turkish radio-television corporation (türkiye radyo ve televizyon kurumu, trt) launched the kurdish language tv channel trt-6 (later renamed as trt kurdi), 3 however, rtük started renouncing its restrictive policies through adopting a new regulation in 2009 which removed all the limitations with the exception of the 3 trt kurdi airs 24 hours a day and presents programmes broadcast on kurdish culture, history, literature, cuisine and music as well as other general interest programmes broadcast on religion, debates, news, health, talk shows and cartoons. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 71 provision imposing a direct state control over broadcasts (kolcak, 2015). the renouncement process was completed in march 2011 when the parliament passed a new media law directly allowing the use of different languages and dialects other than turkish (law no. 6112/2011, art. 5). kurdish names for newborns. giving newborns non-turkish names had been prohibited not long after the 1971 military coup by adopting a new civil registry law under which such names had been acknowledged as those having politically offensive meanings (see law no. 1587/1972, art. 16(4)). a positive step occurred in 2000 at which the supreme court of appeals empowered turkish citizens to freely give their children any name of their choosing. more importantly, the sixth eu harmonisation law amended article 16(4) of the civil registry law (1972), permitting the use of nonturkish names if complying with moral values of the state and not offending the public (law no.4928/2003, art. 5). a circular issued in september 2003 nonetheless restricted the implementation of this amendment as it disallowed the use of names incorporating non-turkish letters q, w, or x (common in kurdish) (moustakis and chaudhuri, 2005: 87). by annulling article 222 of the penal code, under which the use of non-turkish letters had been punished, the so-called ‘democratisation package’, unveiled in september 2013, adopted on 2 march 2014 and entered into force on 13 march 2014, ultimately has permitted the use of all kurdish names (law no. 6529/2014, art 16(e)). kurdish names for towns and villages. the names of the kurdish-populated towns and villages had been changed on the basis that they were not turkish in origin. the democratisation package has allowed the restoration of the original names since march 2014 (law no. 6529/2014, art. 16(a)). a restoration process has been pursuing for more than a year. kurdish in politics. two tools of the traditional restrictive regime, law on basic provisions of elections and electoral rolls (law no. 298/1961, art. 58) and law on political parties (law no. 2820/1983, art. 43), had prohibited the use of non-turkish languages in making political propaganda. although the amendment of the relevant a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 72 provision of the law no. 298 in april 2010 was an important attempt at eliminating the prohibition, which had permitted political parties and nominees to conduct electoral campaigns in kurdish during the 2011 parliamentary election (law no. 5980/2010, art. 7(3)), a more concrete stride was made when the democratisation package directly stipulated that non-turkish languages and dialects could be used in making political propaganda (law no. 6529/2014, arts. 1 and 16(b)), allowing the usage of both the kurdish language and its dialects (kurmanji, sorani and zaza) in the electoral campaigns. kurdish courses for ordinary citizens. the first attempt was made when the third eu harmonisation law (law no. 4771/2002, art. 11) allowed “the opening of private courses for teaching different languages and dialects traditionally used by turkish citizens in their daily life.” to implement, however, the ministry of national education issued an executive regulation, rendering the provision impracticable since it introduced some limitations on teacher qualifications. 4 in order to establish such language courses more easily, the seventh eu harmonisation law (law no. 4963/2003, art. 23) then empowered existing private courses to teach the traditional languages and dialects. the board of education, on the other hand, clarified that kurdish trainers might be appointed primary school, foreign language, and turkish language and literature teachers who know the language. any course encountering a difficulty in assigning teachers of such branches was also authorised to entrust teachers of other branches or graduates of other faculties. although this had assisted the opening of seven kurdish courses, all were closed down as of august 2005 due to serious financial problems 5 and some procedural restrictions relating to the attendees, 6 the curriculum 7 and the 4 teachers were required to have a bachelor’s degree in the language they want to teach though turkish educational faculties were not offering any kurdish-related ba degree at that time. to hinder foreign kurdish instructors, moreover, the regulation required prospective teachers to be turkish citizens (see kurban, 2003; zeydanlioglu, 2012). 5 the language courses did not receive any financial assistance from the state since they had no official school status (zeydanlioglu, 2012). 6 solely adult students were permitted to attend the courses (kolcak, 2015). 7 the courses were merely allowed to teach kurdish grammatically, not any cultural or historical characteristic of the language was included in the curriculum (kolcak, 2015). hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 73 timetable. 8 as a product of the kurdish initiative, kurdish for ordinary citizens has been eventually provided after the empowerment of universities to teach the language in 2009. elective kurdish courses in primary schools. the 2012 legislation extending compulsory basic education from 8 to 12 years is now providing elective courses in kurdish and other living languages in turkey. in june 2013, the ministry of national education, by adopting a new curricula, obliged primary schools to add a course on these languages upon the application of at least ten pupils, demonstrating that the opening of such courses depends on the demands of pupils, not on the arbitrariness of the schools. degree programmes in kurdish. in september 2009, the higher education board (yüksek öğretim kurulu, yök) endorsed the application of artuklu university, a public university in the province of mardin to open the ‘living language institute’ (yaşayan diller enstitüsü) which would provide postgraduate education in anatolian languages and dialects, including kurdish and its dialects. the institute was formally established upon the approval of yök’s endorsement by a cabinet decree (no. 2009/15597), adopted on 1 december 2009. yök authorised many public universities to establish similar institutions in the following years. kurdish as the language of instruction in private schools. the democratisation package permitted the establishment of private schools which can use “any language or dialect traditionally used in turkey” as the language of instruction (law no. 6529/2014, art. 11). in july 2014, the ministry of national education amended the regulation on private schools for the implementation of the provision. in pursuit of the new amendment, private schools are allowed to hold education in the traditional languages and dialects upon the authorisation of the council of ministers (kolcak, 2015). 8 the courses were authorised to last ten weeks and no more than eighteen hours per week (zeydanlioglu, 2012). a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 74 iv. the akp’s trouble-free policies in the exercise of kurdish broadcasting rights, it is a remarkable development that the number of kurdish media service providers has dramatically increased since the adoption of the new media law in 2011, and at the moment there are various kurdish media organisations broadcasting in different areas from culture to music at both the nationwide and local levels. the kurds can now also easily follow international or regional kurdish tv or radio programmes via satellite or internet. 9 with respect to kurdish names for newborns, turkey has also witnessed a positive development since the adoption of the 2013 democratisation package. the kurds can now legally use such kurdish-origin names as mizgin, dilan, bawer, rojbin, jiyan ve zelal to name just a few (see çağdaş, 2015). in the implementation of the reform ‘kurdish names for towns and villages’, the first attempt was made in may 2014 when the village of vergili in batman province was renamed as becirman. van metropolitan municipal council, during its regular meetings in october and november 2014, restored the original names of 26 and 704 towns and villages, respectively. in december 2014, kurdish names of four villages in the province of siirt were restored upon the endorsement of the ministry of internal affairs. similar administrative procedures are also now in progress in such kurdish-occupied cities as diyarbakir, mardin, hakkari, sanliurfa and sirnak (kolcak, 2015). as for the policy ‘kurdish in politics’, it is certainly a significant political development that kurdish and its dialects were freely used not only during the 2014 local elections (radikal, 2014; cizre postası, 2014; milliyet, 2014; haber tempo, 2014), but also during the campaign of the 2015 general election (aljazeera türk, 2015; farqini, 2015; bugün, 2015). 9 the lists of tv channels and radio stations based in turkey and other countries or regions (particularly the iraqi kurdistan) are available at: http://karwan.tv/. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 75 in the implementation of the reform ‘kurdish courses for ordinary citizens’, many institutions have started offering kurdish language courses since 2009 when the kurdish initiative had authorised universities to teach the language. for instance, dicle university, a public university in diyarbakir, now provides three-month regular courses (36 hours in total). many participants including doctors, lawyers, academics, teachers and students have attended these three-moth courses and been granted a language certificate since 2011. a significant number of institutions are also offering similar kurdish language programmes, such as geoaktif culture and activism centre (geoaktif kültür ve aktivizm merkezi), which offers nine-month regular courses (totally 108 hours), istanbul kurdish institute (i̇stanbul kürt enstitüsü) and bilgi university, a private university based in istanbul (kolcak, 2015). with regards to the reform ‘degree programmes in kurdish’, following the authorisation of artuklu university to offer kurdish degrees, many public universities followed the same path, and now there are a significant number of public universities providing both undergraduate and postgraduate education in kurdish, such as alparslan university, bingöl university, dicle university, siirt university, tunceli university and yüzüncü yıl university, all of which are based in the kurdish-dominated provinces. many students have studied at these universities since 2012. let me just give a brief note for the university of artuklu. when this university started offering a bachelor degree in kurdish language and literature in 2010, 20 students enrolled in this programme. in the subsequent years, the number has increased 35 in 2011, 45 in 2012, and 65 in 2013 and 2014. the first students who began their education in the 2010-2011 academic session have recently gained their ba in kurdish language and literature in june 2015. in addition, in the 2012-2013 and 2013-2014 academic sessions, totally 500 postgraduates obtained a graduate diploma in kurdish language and literature from the same university. in the most recent academic year 2014-2015, on the other hand, 30 postgraduates received an ma in kurdish language and literature while some 70 a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 76 students are still continuing to complete their dissertations (tastekin, 2014; kolcak, 2015). v. the akp’s problematic policies some kurdish ethno-cultural rights adopted by the akp government are problematic. as a starting point, let us first look at the policy ‘elective kurdish courses in primary schools’. it is a positive development that students have started taking the elective courses, beginning from the fifth class, since 2012. courses in kurdish, laz and circassion are available in the public schools at the moment. in the sessions (20122013, 2013-2014 and 2014-2015), 21, 000, 53,000 and 85,000 primary school students enrolled in these courses, respectively. 10 while this is a historic step, elective kurdish courses still suffer from three essential restrictions. first, optional kurdish lessons are now given solely 2 hours per week; however, according to language masters, no one can learn a language in two-hour classes (akgonul, 2012). second, the optional classes begin with the fifth year of primary school, and the kurds are educated merely in turkish for the first four classes of primary schools. this class level restriction is of course a problematic aspect of the optional kurdish lessons. while foreign language education (mostly in english) begins from the second class with its mandatory status, kurdish pupils can learn, if they wish, their mother tongue after the fourth year of primary school (akgonul 2012). last but not least, only language education is not considered enough to reflect all minority characteristics. basic european minority-specific legal materials, namely the 1992 european charter for regional and minority languages (ecrml) and the 1995 framework convention for the protection of national minorities (fcnm), do separate language neither from literature nor from history, and stipulate that states undertake to make arrangements to ensure the teaching of minority culture and history (see article 12(1) fcnm and article 8(1)(g) ecrml). kurdish pupils should therefore have been 10 these are the approximate numbers according to the ministry of national education’s official records (see milliyet, 2012; hürriyet, 2015). hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 77 able to take kurdish literature and history classes in addition to the optional language courses (today’s zaman, 2012). a more problematic scenario can be realised when looking at the reform ‘kurdish as the language of instruction in private schools’. in summer 2014, the kurdish language research and development society (kürt dili araştırma ve geliştirme derneği) made official applications for opening three schools in diyarbakir, sırnak and hakkari that would carry out teaching in the kurmanji dialect of kurdish. although they had been prepared to open their doors on 15 september 2014, such schools were sealed by local governors on the grounds that the opening of the schools is unconstitutional (yoney, 2014a). the seal on ferzad kemanger elementary school, a kurdish-teaching school in diyarbakır, was protested by citizens three times, and then the ministry of national education removed it (yoney, 2014b). for the rest of the 20142015 season, the school conducted education in kurdish under a new name that of education support house (aslan and sunar, 2014). this removal, however, does not render the opening of schools using languages and dialects other than turkish as the language of education constitutional. the future of such schools cannot be ensured in the presence of article 42(9) of the turkish constitution, which stipulates that “no language other than turkish shall be taught as a mother tongue to turkish citizens at any institution of education. foreign languages to be taught in institutions of education and the rules to be followed by schools conducting education in a foreign language shall be determined by law. the provisions of international treaties are reserved.” turkey ratified the 1966 international convention on civil and political rights (iccpr), according to which ethnic, linguistic and religious minorities “shall not be denied […] to enjoy their own culture, to profess and practice their own religion, or to use their own language” (art. 27), on 23 september 2003, but made a reservation that a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 78 “the republic of turkey reserves the right to interpret and apply the provisions of article 27 of the international convention on civil and political rights in accordance with the related provisions and rules of the constitution of the republic of turkey and the treaty of lausanne […] and its appendixes (united nations, 1996: 12).” the treaty of lausanne rules that “turkish nationals belonging to non-moslem minorities […] shall have an equal right to establish, manage and control at their own expense […] any schools and other establishments for instruction and education, with the right to use their own language (art. 40).” article 41 of the treaty also reads that “as regards public instruction, the turkish government will grant in those towns and districts, where a considerable proportion of nonmoslem nationals are resident, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such turkish nationals through the medium of their own language.” in sum, pursuant to the turkish constitution only minorities recognised in the treaty of lausanne can enjoy educational guarantees. the lausanne treaty confers educational freedoms merely upon non-muslim minorities. since turkish-citizen kurds are muslim, they have been automatically prevented from the exercise of educational guarantees enshrined in the treaty. in this circumstance, we do need to say that the use of kurdish as the language of education is unconstitutional in turkey. if we look at some important international legal materials which make explicit provisions for mother tongue education, however, it can be certainly maintained that turkish legal order ought to permit the kurdish language and its dialects to be used in hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 79 both public and private schools as the language of instruction. the polish minorities treaty, for example, grants linguistic, racial and religious minorities within the borders of poland a right to establish, manage and control their own educational institutions (thornberry and gibbons 1997). article 26(3) of the 1948 universal declaration of human rights (udhr) states that parents “have a prior right to choose the kind of education that shall be given to their children,” empowering parents to select the language in which their children would receive. converting the premises of the udhr into the form of binding treaty, the 1966 international covenant on economic, social and cultural rights (icescr), in article 13(3), stipulates that “the states parties to the present covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the state and to ensure the religious and moral education of their children in conformity with their own convictions.” article 29(c) of the 1959 un declaration on the rights of the child reads that “the child is entitled to receive education […] which will promote his general culture”. the convention on the rights of the child (1959), on the other hand, rules that “the education of the child shall be directed to the development of respect for the child parents, his or her own cultural identity, language and values” (art. 29 (c)). the 1992 un declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities (un declaration on minorities) also suggests “[s]tates should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue” (art. 4(3)). article 8 ecrml stipulates a more concrete provision, according to which the state parties undertake to make available the whole or a substantial part of education in a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 80 regional or minority languages from kindergarten (or nursery school) to the end of higher education within the territory in which such languages are used. the other european minority-specific convention, fcnm also involves some provisions for both private and public educations. with respect to private education, article 13(1) fcnm authorises national minorities to establish and manage their own educational and training institution. with regards to public education, the convention, in article 14(2), reads that “in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.” in several countries where a progressive human rights regime is being implemented, these international provisions are already involved in the domestic legal frameworks. such countries allow their minority communities to use their own languages generally through forming a bilingual or multilingual educational system that means the educational activities conducted in two (if bilingual) or more than two (if multilingual) languages. for a programme to be recognised as bilingual, both the dominant language of the society (e.g. turkish in turkey) and one different language spoken in the same society (e.g. kurdish in turkey) must be used as languages of education to deliver the content of the curriculum, such as physics course in kurdish and geography course in turkish in turkey. as for the acknowledgement of a programme as multilingual, both the majority language (turkish in turkey) and at least two other languages (kurdish and laz in turkey) must be used as languages of instruction to deliver the content of the curriculum, such as a potential educational curriculum providing mathematics course in kurdish, biology course in laz and literature course in turkish. bilingual or multilingual education is thus not only the hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 81 teaching of minority languages, but it also refers to the usage of those languages in the teaching of various disciplines listed in the curricula. there are a significant number of examples for the implementation of such a bilingual or multilingual educational programme. depending upon the locality of education, each state in the united states of america (usa) applies particular bilingual programmes; for instance, in the states with an important migrant population such as new york, texas, new jersey and illinois, bilingual education is compulsory. in the usa, bilingual education for minority groups is legally guaranteed by the civil rights act of 1964 and bilingual education act (kaya and aydin, 2013). by adopting the education reform act (1998), in which a new national curricula was introduced, the united kingdom (uk) transited to a certain bilingual education programme. 11 the uk is currently practicing a bilingual education programme in its four constituent regions. the education is basically aimed at the integration of immigrants in england whilst the purpose is to protect and develop the mother tongue in the other regions, namely wales, scotland and northern ireland (kolcak, 2015). previous swedish central government had suppressed and oppressed the finns and samis by implementing numerous coercive assimilation policies. in the 1950s, however, the oblivious and radical nationalist attitude towards minority nations came to change mostly because of the labour immigrants. many minority languages, such as sami, meankieli, romanian and yiddish, were officially recognised as the languages of education. in sweden, bilingual education is now constitutionally guaranteed from which many students benefit various employment advantages in such areas as journalism and translation services having obtained a proficiency certificate in the relevant language (kaya and aydin, 2013). 11 before adopting the 1998 act, there were indeed some examples for bilingual education in the uk. in wales, for example, the first welsh primary school was established in 1939. the establishment of this school is considered as the beginning of bilingual education in wales (huguet, 2007: 70). a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 82 spain established a bilingual educational system with the adoption of the new constitution in 1978, which divided the country into autonomous regions. having adopted the language planning acts in each autonomous region where a distinct language is spoken – balearic islands, basque country, catalonia, galicia, navarra and valencia – not only castilian (the dominant language) but also such minority languages as euskera (the basque language), catalan, occitan (or valencian) and galician started to be used as the languages of education in the autonomous spanish regions concerned (huguet, 2007). 12 the last two examples are switzerland and canada. 22 out of 26 swiss cantons are now practicing a bilingual (or trilingual in some cantons) educational programme. in canada, bilingual education is very much in accordance with the multicultural policies acknowledging each distinct cultural group as a milestone of the canadian richness. as a reflection of its multicultural and multinational atmosphere, not only the majority languages (english and french), but also a significant number of minority languages, including those spoken by indigenous aboriginal canadians (the first nations, inuit and metis), are now used as the language of instruction in canada (kaya and aydin, 2013). all in all, mother tongue education is a right for national minorities which is already recognised in a significant number of international legal sources and is already exercised by many national minorities inhabiting in the states where a progressive human rights regime is being implemented. in light of this reality, the reform ‘kurdish as the language of instruction in private schools’ should be reconsidered. first, the scope of the reform should be widened: not only private schools but also public schools should be authorised to use the language. second, more importantly, the constitutional restriction (article 42(9)) should be removed in order to implement the reform properly. 12 the language planning acts concerned are the euskera language planning act (passed in the basque country in 1982), the catalan act (passed in catalonia and balearic islands in 1983 and 1986, respectively), the galician act (passed in galicia in 1983), the valencian act (passed in valencia in 1983) and the vascuence act (passed in navarra in 1986) (huguet, 2007: 74). hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 83 vi. the akp’s silence on two issues having analysed all the relevant reforms the akp’s government initiated in the period from 2002 to 2014, let us turn our attention to two important issues which were not taken into account during the period, namely 1) the official use of kurdish and 2) public funding and constitutional protection for the maintenance and development of kurdish ethno-cultural characteristics. it is initially worth noting that the turkish constitution is a restriction to resolve these two issues once again. that is why i will employ the methods of comparative constitutional law and politics in developing my own arguments. the official use of kurdish in its history, turkey did not permit any language other than turkish to be used officially. article 18 of the 1876 ottoman constitution (kanun-u esasi) had ruled that “[e]ligibility to public office is conditional on a knowledge of turkish, which is the official language of the state.” all turkish constitutions embraced this legal tradition in the following years. as a framework law, the constitution of 1921 (teşkilât-ı esasiye kanunu) did not deal with the issue of the official use of languages, and took into consideration the relevant provision of the ottoman constitution, demonstrating that it recognised only turkish as official language. the constitutions of 1924 (art. 2) and 1961 (art. 3) followed the same path and acknowledged turkish as the sole official language of the country. the present constitution of turkey accepts merely turkish as official language like its predecessors, but unlike them, it makes the relevant provision (art. 3) as an irrevocable one (art. 4). the issue on the official use of minority languages is indeed analysed in the european minority-specific legal materials. in accordance with article 9 ecrml, provincial judicial branches ought to conduct civil and criminal proceedings in minority languages at the request of the parties. these branches should permit an accused or a litigant to use her/his minority language; should not consider evidence and request, a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 84 whether oral or written, inadmissible merely since they are formulated in a minority language; and finally such branches should produce, on request, documents pertaining to legal proceedings in minority languages. the same material, in article 10, also stipulates that provincial administrative bodies may allow the use of minority languages within the framework of the local authority. these administrative authorities may moreover empower users of minority languages to submit written or oral applications, and receive a reply in such languages; may publish their official documents in minority languages; may use minority languages in regular debates in their assemblies; and finally they may use minority languages in the provision of public services. the other european minority-specific material, fcnm imposes similar duties on the state signatories. article 10(2) fcnm rules, for example, that “in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those minorities so request and where such a request corresponds to a real need, the state signatories should endeavour to ensure the conditions which would make possible the official use of minority languages in the administrative authorities”. the same legally-binding material, in article 10(3), also reads: “the parties undertake to guarantee the right of every person belonging to a national minority to be informed promptly, in a language which he or she understands, of the reasons for his or her arrest, and of the nature and cause of any accusation against him or her, and to defend himself or herself in this language, if necessary with the free assistance of an interpreter.” hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 85 many states which are implementing a progressive human rights regime consider these european-origin legal provisions, and make explicit constitutional provisions that either directly or indirectly allow the official use of minority languages.  direct recognition some constitutions directly recognise not only the language of the majority, but also those of the minority. the swiss constitution, for instance, recognises french, italian, german and romansh as the national official languages of switzerland (art. 4). the swiss state is a confederation consisting of cantons (art. 1). while article 70(1) of the constitution recognises the four languages as the official confederal languages, article 70(2) empowers all cantons to determine their own official languages. the constitution of finland, in section 17(1), acknowledges finnish (the language of the majority) and swedish (a minority language in finland) as national languages. the use of these national languages in parliamentary works is directly guaranteed by the constitution (see section 51(1-2)). in pursuit of the 2003 language act, adopted with the goal of implementing section 17(2) of the constitution, every finnish citizen enjoys the right to use his or her native language, either finnish or swedish, before not only the courts but also the regional, municipal and state authorities. the language act also ensures the right of every finnish citizen to receive official documents in their mother tongue (ihalainen and saarinen, 2014). in light of the 2003 sami language act, 13 adopted with the aim of implementing section 17(3) of the constitution, the sami language has a distinct legal status as well as the other two (finnish and swedish). the act, on the one hand, safeguards sami linguistic rights such as the rights of sami to use their own language before the courts and other public authorities. it, on the other hand, imposes a duty on the public authorities to enforce and promote such linguistic rights. 13 the sami is an indigenous finno-ugric people, which currently inhabits in the arctic area of sapmi encompassing parts of far northern finland, sweden, norway, the kola peninsula of the russian federation, and the border zone between south and middle norway and sweden. a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 86 in accordance with the spanish constitution, castilian (the language of the majority) is the official language of the state, and the other spanish languages may be used officially in “the respective self-governing communities in accordance with their statutes” (art. 3). after the language planning acts entered into force, which were prepared by the autonomous regions in which a minority language is being spoken, euskera (the basque language), catalan, occitan (or valencian, a dialect of the catalan language) and galician started to be used officially at the regional level. the canadian constitutional act, in article 16, directly recognises english and french as the official languages of the state. the use of the two languages in “all institution of the parliament and government of canada” is also guaranteed by the constitutional act (see art. 16(1)). as a final example for the mechanism of direct recognition, the constitution of ireland acknowledges both irish and english as the official languages of the state (see art. 8).  indirect recognition some constitutions do not deal directly with the issue on the official use of languages; instead; they impose a duty on the law to rule on this matter. a law then tackles with the issue, and expounds which languages can be used officially. the belgian constitution is an example for this indirect mechanism. pursuant to article 30 of the constitution, “[t]he use of languages spoken in belgium is free; only the law can rule on this matter, and only for acts of the public authorities and for legal matters.” in 1962, belgium was divided into four linguistic areas by law, and this division was incorporated in the constitution in 1970 (art. 4). each belgian linguistic region now has its own official language(s): wallonia uses french as its official language; flanders region uses flemish, a dialect of dutch; a small part of walloon region uses german; and finally the brussels region is officially bilingual (dutch-french) (see peeters, 2007; iacovino and erk, 2012). hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 87 the constitution of luxembourg embraces the mechanism of indirect recognition like its belgian counterpart. the luxembourgian constitution, in article 29, reads that “the law regulates the use of languages in administrative and judicial matters.” the language law was ratified on 24 february 1984, formally enshrining luxembourgish as the national language of the state (art. 1). in pursuit of the same law, french was officially acknowledged as the language of legislation (art. 2), and all administrative matters were to be carried out in luxembourgish, french and german (art. 3). the three languages were eventually awarded an official status upon the ratification of the language law (redinger, 2010). in a nutshell, the official use of language(s) is a right for national minorities which is already enshrined in the european minority-specific legal materials (fcnm and ecrml) and is already exercised by national minorities inhabiting in the states where a progressive human rights regime is being implemented. during its ruling period from 2002 to 2014, the akp did not deal with the issue on the official use of kurdish. in light of the aforementioned practices, however, it has become obvious that turkey should embark on a reform process to allow the official use of kurdish and its dialects. it is initially noteworthy that a prospective reform process does need to involve a constitutional amendment package. article 3(1) of the turkish constitution recognises turkish as the sole language of the state. the following constitutional provision (art. 4), on the other hand, does not permit any amendments of the first three articles of the constitution, rendering article 3 an irrevocable provision. having amended article 4 of the constitution which would enable a potential amendment of article 3, a foundation may be ultimately laid for the official use of kurdish and its dialects. there are at least two alternatives for the new version of article 3. first, it may declare more than one official language (direct recognition); second, it may not give any prejudices to a language, and may impose a duty on the law to rule on this matter (indirect recognition). both alternatives, i think, are welcomed in turkey. in implementing the first, article 3 may declare both turkish and kurdish (including its a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 88 dialects) as the national languages of the state. alternatively, it may still acknowledge turkish as the only national language, but with allowing the regional and local state bodies, including administrative and judicial authorities, to use regional languages and dialects officially, rendering kurdish and its dialects regional official languages in the kurdish-occupied southeastern turkey. as for the implementation of the second, article 3 may impose a duty on the law to rule on the matter, and then a law may deal with the official use of languages. a similar scenario can be envisaged: the law may acknowledge both turkish and kurdish (including its dialects) as national official languages; or, it may recognise merely turkish as national language whilst awarding kurdish and its dialects a regional official status. public funding and constitutional protection for kurdish ethno-cultural characteristics a duty of preserving minority language, culture and history is appeared in many international legal documents. the un declaration on minorities states, for instance, that “[s]tates should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory” (art. 4(4)). the first european minority-specific legal material ecrml, in article 8(1)(g), stipulates that the state parties undertake to make arrangements to guarantee the teaching of the history and the culture which is reflected by the minority or regional language. the other european minority-specific, legallybinding convention, fcnm rules that the state parties ought to preserve and promote minority cultures by means of promoting the conditions necessary for members of national minorities, and protect the basic elements of minority identity, namely cultural heritage, language, religion and traditions (art. 5(1)). article 134 of the turkish constitution ensures public funding and constitutional protection for the maintenance and development of the turkish language, history and culture while mentioning nothing about the minority characteristics found in turkey. in countries where a progressive human rights regime is being implemented, however, the constitution does not grant a privilege to an ethnic group; rather, it essentially aims at hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 89 protecting and advancing the characteristics of all communities within the state by paying a particular attention to the principle of equality. for example, the constitution of spain, in its preamble, safeguards “all spaniards and peoples of spain in the exercise of human rights, of their culture and traditions, languages and institutions.” in a similar vein, the italian constitution, in article 9(1), stipulates that “the republic promotes the development of culture and of scientific and technical research”, empowering the german-speaking nation in south tyrol to enjoy the same privilege as ethnic italians. the principle of equality is enshrined in other constitutions as well. in accordance with the finnish constitution, “the public authorities shall provide for the cultural and societal needs of the finnish-speaking and swedish-speaking population of the country on an equal basis” (section 17(2)). furthermore, the sami, the roma and other groups enjoy the right to protect and promote their own language and culture pursuant to section 17(3) of the constitution. although the swiss constitution considers cultural matters as a cantonal responsibility (art. 69(1)), it encourages the confederation to support cultural activities of the cantons (art. 69(2)). to sum up, the promotion of public funding and constitutional protection for minority characteristics is a right for national minorities which is already enshrined in a number of international (un declaration on minorities) and european (ecrml and fcnm) legal materials. during its ruling period from 2002 to 2014, the akp did not deal with the issue on the public funding and constitutional protection for kurdish ethno-cultural identities. the above-mentioned constitutional practices have indicated that countries which are implementing a progressive human rights regime embrace the principle of equality at the constitutional level, and grant their minority nations the same privilege the ethnic majority population is enjoying. in turkey, however, the constitution does ignore the principle, and cares only about ethnic turks’ characteristics, including their linguistic, historical and cultural a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 90 identities (art. 134). in this regard, a constitutional reform package which is already required for the official use of kurdish, may also involve an amended version of article 134. by resting upon the principle of equality, the revised model of article 134 may provide public funding and constitutional protection not only for the preservation and promotion of turkish characteristics, but also those of ethnic kurds. vii. conclusion the kurds had suffered from numerous coercive assimilation policies in turkey; however, after the akp came into power in 2002, a genuine reform process aimed at compensating the traditional harm done by the early republican regime, the three military administrations and their successor governments was introduced. in the period from 2002 to 2014, the akp made a significant number of reforms. as a review of such reforms, this article has come to the following conclusions. many of the reforms have been implemented properly. the kurds can now freely watch tv channels and listen radio stations which prepare their programmes in the kurdish language and its dialects (sorani, kurmanji and zaza). kurdish parents can now give their children kurdish-origin names without any legal restrictions. the kurdish-origin names of the town and villages have been restored since may 2014. kurdish can be freely used in turkish politics at the moment. as for turkish educational framework, there are also some positive results. ordinary citizens can now attend kurdish language courses which are provided by not only the public universities but also many non-governmental organisations. in primary schools, elective kurdish language courses have been offered since 2012 as well. moreover, many public universities are now offering undergraduate and postgraduate degree programmes in kurdish. notwithstanding, there are still some problems concerning the educational framework. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 91 first, elective kurdish language courses offered in the primary schools are suffering from three sorts of restrictions, namely time-level, class-level and curriculalevel. the removal of these restrictions may contribute to the appropriate implementation of the relevant reform. second, although private schools have been permitted to use kurdish as the language of instruction since 2014, there is no constitutional base for this permission, rendering the implementation of this reform difficult. third, the reform related to mother tongue education in kurdish also suffers from a scope-level restriction as it allows only private schools not both private and public ones, preventing poor kurdish pupils from receiving education in their native language. there are also two significant issues – (i) the official use of kurdish and (ii) public funding and constitutional protection for kurdish characteristics – on which the akp kept silent during its ruling period from 2002 to 2014. these two issues are still unopened boxes as of august 2015. by employing the methods of comparative politics and constitutional law, this article has reached the conclusion that the resolution of the educational problems and a new initiative aimed at allowing the official use of kurdish and providing public funding and constitutional protection for kurdish features, require a constitutional reform package. for the sake of laying a foundation for bilingual education, a prospective constitutional revision package may delete or amend article 42(9) of the constitution, under which the kurds are obliged to receive education in turkish. with respect to the official use of kurdish, article 3(1) of the constitution, according to which turkish is the only language of the state, may be revised. the new version of article 3 may take into account two mechanisms, direct recognition and indirect recognition, both of which, i think, are welcomed in turkey. a more but not fully constructed arena: a critical analysis of the akp’s policy toward kurdish ethno-cultural rights (2002-2014) the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 92 within the scope of the first mechanism, the new article 3 may declare turkish and kurdish and its dialects as the national languages of the state; alternatively, it may still acknowledge turkish as the sole national language, but with authorising the provincial state bodies to use regional languages and dialects officially, rendering kurdish and its dialects regional official languages. a parallel scenario can be imagined in employing the second mechanism: the new article 3 may impose a duty on the law to rule on the official use of languages, and then a new law implementing this constitutional provision may recognise both turkish and kurdish and its dialects as national official languages; or it may acknowledge merely turkish as national language while awarding the kurdish language and its dialects a regional official status. the other provision the prospective constitutional revision package would give a new shape is article 134, pursuant to which only turkish cultural, historic and linguistic characteristics can receive public funding and be protected constitutionally. the scope of article 134 may be expanded by ensuring public funding and constitutional protection not only for the turkish language, history and culture but also those of ethnic kurds. as a consequence, i am of the belief that the akp has reduced the harm done by the traditional republican regime; however, there are still some constitutional restrictions, the presence of which hampers the kurds from exercising globallyrecognised ethno-cultural rights. should a prospective constitutional revision package taking into account all the aforementioned issues is introduced, however, it would remove all the restrictions, empowering the kurds to enjoy internationallyacknowledged ethno-cultural rights. hakan kolcak the age of human rights journal, 5 (december 2015) pp. 63-97 issn: 2340-9592 93 references akgonul, m.s., 2012. elective kurdish courses in turkey: a historic step or a case of a too little, too late. the kurdish globe, [online] 18 june. available at: http://www.kurdishglobe.net/article/6ecea43d2e378bacc3a4356a4dcab dbb/electi-vekurdish-courses-in-turkey-a-historic-step-or-a-case-of-a-too-little-toolate-.html [accessed 3 august 2015]. al, s., 2015a. elite discourses, 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therefore, are these classified as secondary, devalued, fragile and second-rate rights? faced with a possible positive response, the objective of the present study will be to provide reasons and arguments to support the hypothesis that places social rights as true fundamental rights3. to this end, it shall be underpinned that the differential treatment of the rights from a sector of legal literature is only surrounded by an ideological mantle4 essentially of liberal roots, which would aim to support a different protection of social rights. this situation makes depend the projection of the legal theory of social rights as fundamental rights and it conditions the constitutionalization of certain demands of morality ethically justifiable (ansuategui 2010: 51) to justify our hypothesis, we firstly address the development of the historical construction of the terminological difference between civil and political rights and social rights. this will allow evaluating and verifying that the differences have had a pure ideological origin and, above all, to observe how the ideology has influenced from the international perspective in the configuration of the internal regulations, introduced as watertight compartments. then, the arguments that affect the differentiation will be analyzed, in order to criticize each of the supposed justifications that advocate it, with the aim of maintaining that social rights are true fundamental rights. the position of the author also underlies an ideological content, but is not in any case a reductionist one. 2 these supposed characteristics have allowed that the social rights, can only be presented like mere programmatic norms, end-norms of the state or objective mandates –whose effectiveness will become mediate–. this situation evidences the ideological intention that underlies the argument. an example of this description is found in the theoretical proposal made by e.-w. böckenförde, who argues that the social claims for benefits are reduced to legal-objective mandates and that these mandates are addressed to both the legislator and the administration. böckenförde (1993: 81-82). 3 cruz villalón argues that fundamental rights are recognizable “in terms of their general linkage, direct effectiveness, respect for their essential content by the legislator and judicial protection. however, fundamental rights are not defined only by its content but mainly by the “connection of meaning” of fundamental rights with the constitution, what means that fundamental rights are born with the constitution and end with the constitution”. cruz villalón (1989: 35-62 ff.) 4 “in any case what we are going to find behind these historical, moral, economic, legal reasons, there are political (in the sense of ideological) approaches. (...) such ideological approaches inevitably appear in any discourse of rights (...)”. ansuátegui (2010: 50). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 93 juan josé janampa almora ii. on the distinction between civil and political rights and social rights. supposed characterization of social rights it is pertinent before starting this paragraph to make clear the following: although there is a great variety of classifications of rights, including: a) civil and political rights, on the one hand, and social rights on the other, b) individual rights and social rights, c) rights of abstention and rights of benefit, d) right of autonomy and rights of benefit (alexy 2007: 482), hereinafter the analysis will take the first classification to refer to the “alleged difference of categories of rights”, in order to make this study more comprehensive. the distinction between civil and political rights (first generation rights) and social rights (second generation rights) was born from the publication of thomas humphrey marshall's book citizenship and social class, where the english sociologist made a historical description of the progressive evolution of rights, relating directly to the expansion of the concept of citizenship. civil rights, political rights and social rights would correspond to different demands for the expansion of citizenship, which were built between the political and ideological vindication of certain groups and the social and economic conditions in which the state was developed. his work helped to adopt a certain generational idea of rights, which roughly understood could lead to assume that social rights were secondary rights as rights of appearance e after civil and political rights. as far as social rights came later, attention over them must also be later, that is, after having satisfied civil and political rights (pisarello 2007: 19-36). thus, such a distinction of civil and political rights and social rights was emphasized in the 1966 human rights covenants5. these have consolidated the historical fracture of human rights in two watertight compartments, on the one hand, civil and political rights and, on the other hand, economic, social and cultural rights. accordingly, since the substantive difference made by the covenants, civil and political rights and social rights have been characterized differently: civil and political rights may be stateless, without institutional protection, while economic, social and cultural rights need indefectibly of the political and legal organization of the state (prieto 1995: 9 ff.). in this sense, from the beginning the liberal formula has advocated a contrast between civil and political rights and social rights, creating ideological justifications. it has been generally held –liborio hierro has been a descriptive one regarding this, since he does not share such a difference–, that authentic civil and political rights, ergo, universal, have 5 it is known that the international covenant on economic, social and cultural rights and the international covenant on civil and political rights were adopted by general assembly resolution 2200 a (xxi) on 16 december 1966. the first one entered into force on 3 january 1976 and the second one on 23 march 1976. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 94 reasons for the construction of a legal theory of social rights as fundamental rights an absolute character. according to this doctrine, these are eminently definitive insofar as their mere statement defines its content; also, these are characterized by their immediate effectiveness against the state and have a guarantee of justifiability. the entire contrary happens with social rights, which are specific rights with a relative character that requires a certain institutional form, whose effectiveness would depend on the implementation of costly means and that would not be justiciable, since they would be conditioned to legislative development regarding to their concrete protective actions (hierro 2009: 165166). these rather topical dimensions undoubtedly refer to the identification of social rights as benefit rights, where the content that would identify them would be a “benefit or a right to something” that can be claimed only before the state. in this sense, a certain majority sector of the academy (cossio1989: 45-46) has manifested that this benefit character has become a relevant and decisive factor to differentiate civil and political rights from social rights, i.e., such dissimilarity is promoted by the compulsory character that corresponds to each right6; social rights have a character of benefit and civil and political rights have a character of abstention. freedoms create a kind of simple legal relationship where individuals know perfectly what their reciprocal rights and duties are about, whereas these other rights require a prior network of organizational rules –by the way, lacking in enforceability– which in turn generate a multiplicity of legal obligations of different subjects (prieto 1995: 19). this description has resulted in different treatment of social rights, not only caused by the absence of provision by the state but also by an inefficient and inadequate provision of the right in question. these differences strongly defended nowadays constitute a problem and a complexity for social rights, while these are not considered autonomous fundamental rights but only programmatic norms or, simple political aspirations, without objectionable and justiciable content by individuals with an ownership position. so, it is surprising that a distinction emerged and consolidated by such contingent historical factors could penetrate as deeply as it has done in the theory of rights, both in legal philosophical thinking and in constitutional legal doctrine (hierro 2009: 168). however, these differential characteristics assumed by the liberal position are not shared from the socialist perspective, since they consider that social rights are authentic rights, universal, substantive, primary –once satisfied, social rights allow individual rights to be 6 “after civil and political rights there are legal duties, usually abstention, which represent primary rules or behavior usually with a universal obligated subject; on the other hand, after social rights, there are also secondary or organizational rules which stand between law and obligation, between the creditor and the debtor (...)” prieto (1995: 19). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 95 juan josé janampa almora enjoyed–, immediate –these should be directly satisfied by the political organization– (hierro 2009: 166-167) and benefit rights7. although social rights are delivery rights, this is only one of the main dimensions that has a relation with the positive obligations of the state8, since it also has a dimension of abstention, whose main responsible is the state. notwithstanding the above, it is pertinent to state that civil and political rights also have this double dimension, as will be seen below. thus, the differences previously maintained by the liberal position, leads to conclude the following. the distinction between civil and political rights and social rights, in order to deprive the latter of their full juridical effectiveness, clearly had not only an ideological origin or historical genesis, but they have also been shaped and structured by contextual situations, which leads to maintain that both are irreducibly distinct categories. however, these differences are not such, since there are grounds for the distinction to be diluted. for this reason, the next section will address the various paths taken by the alleged distinctions of civil and political rights versus social rights. ultimately, the objective is to verify and confront whether such a difference is the product of only an imposed ideology, or whether both categories share the same essential properties that characterize fundamental rights, which will test the hypothesis. 7 “it has come to be said that it is very easy to refer to and identify social rights as benefits rights, that is, as those rights that, instead of being satisfied by an abstention of the obligated subject, require in turn a positive action that normally translates in the provision of some good or service” prieto (1995: 9). 8 the mandatory character of social rights would be constituted, in this context, by material benefits (economic goods or services) that must be provided to the people for their satisfaction. thus, the rights to health or education, for example, would be satisfied with the corresponding public services implemented for their protection; the rights to social security and to the pension would be covered by the economic benefit that is given to the people who suffer some contingency; the right to food or housing would be covered by the direct subsidy given to people who cannot enjoy their exercise; all material elements, whose provision could only be the responsibility of the state. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 96 reasons for the construction of a legal theory of social rights as fundamental rights iii. three supposed differences. a critical analysis for the construction of a legal theory of social rights as fundamental rights iii.1. social rights are highly indeterminate (these are not fundamental rights) this thesis is supported by the idea of the indeterminacy of constitutional disposition containing benefit norms (social rights)9 that are characterized by prescribing some ends that must be sought or achieved. the realization of these ends can be carried out through infinity of means, but the constitution rarely specifies which of these means should be adopted by the legislator, nor does it describe the opportunity in which they should be put into practice (bernal 2007: 370). following this argument, it is understood that this condition is even more acute because the provisions interpreted according to the social state do not contain any criterion about the extension of the guarantee of social budget. so, what is the extent of the guarantee, a minimum, one half or the maximum of such budgets? or, how does the holder of the fundamental right relate with the benefits? this leads to observe that the concretizations of benefits can be implemented in a myriad of forms –indetermination of means as opposed to civil and political rights that constitute negative norms of conduct concretized in the form of specific abstention mandates or not interference–, which leads to the conclusion that this type of provisions suffer a structural lack of determination that affects the possibility of its normative configuration as subjective rights. this idea can be observed in different ways: the provisions do not respond to an immediate application to the extent that it must previously be developed by the legislator, for example, the right to health or the right to housing. on the contrary, civil or political rights apply immediately, e.g., rights to life or freedom of expression. in this sense, this structural difference causes the fundamental rights of freedom to be imposed on their own, so they can be realized directly at the level of the constitution by way of concrete legal claim. this analysis would not be possible in social rights of benefit (social rights). the constitutional provisions are so general, abstract and vague that concrete legal claims cannot be inferred by means of interpretation, e.g., regarding the right to housing, it cannot be argued that there is an obligation to build and distribute housing maintained by the state, nor the existence of housing prices state fixation or the granting of rental subsidies in a free housing market framework. also, it is not possible to state the extent that self-responsibility and self-care must be applied and what size or housing 9 “we can nominate “disposition” to any statement belonging to a source of law and reserve the “norm” name to designate the meaning content of the provision, its meaning, which is a dependent variable of interpretation”. guastini (1999:11). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 97 juan josé janampa almora equipment should be considered adequate, or whether the provision of housing should benefit all citizens or only the least well-off or needy (guastini 1999: 76-77). it is worth to comment the defense of the “objective mandates thesis”10, where the suppression of the figure of the active subject in the structure of the juridical positions in which social rights are concretized is justified in the premise that social rights prescribe only purposes and not specific legislative measures (object of the provision). in this way, the object becomes an indeterminate provision that would lead to the absolute discretion of the legislator. it is the reason the active subject has no claim immediately enforceable as it depends on regulatory authorization11. according to robert alexy, following the same argument, he describes that it has been argued that the most important objections against fundamental social rights can be grouped into two formal and one material argument (alexy 2007: 450). the first one that is interesting for this section implies that the thesis of the non-enforceability of fundamental social rights or the minimum enforceability is based on the argument that these are very indeterminate (alexy 2007: 450). to affirm this idea, the author provides an example: what is the content of the fundamental right to work? –indetermination of content–. the scale of conceivable interpretations extends from a utopian right of each one to have a wanted job, everywhere, in case of unemployment until gaining an unimaginable amount of money, or only to work the hours wanted. but what should be the economic amount? the problems relating to other fundamental social rights are not very different, so that the complexity of determining the minimum vital or the realization of their exact content of rights remains. therefore, the thesis of judicial enforceability is deficient because it must enforce something more, which is outside the semantic and structural indeterminacy of fundamental social rights, i.e., it is impossible to arrive with specific legal means to an exact determination of the content and structure of fundamental social rights abstractly and vaguely formulated. this precision allows concluding that the right does not offer enough guidelines to achieve this. now if the 10 “the only argument advanced is the indeterminacy of the subject of the claim (...) social rights prescribe only purposes and no specific legislative measures to achieve them. these legislative measures are the object of the provision of legal relations derived from those rights; then since the object is indeterminate, the possibility of attributing to the subject any right or enforceable claim must be eliminated, because if it is attributed an enforceable claim, the judge would have to specify the object, which contradicts the principle according to which in a democracy, the realization of the object of the obligations arising from the delivery rights belong primarily to the legislature” guastini (1999:76). 11 apparently, the thesis of objective legal mandates has been advocated and followed in spain, in relation to delivery rights included in chapter iii of title i of the spanish constitution. in this regard, m. carrillo has appeared on social rights, saying that these “typify purposes that can be fulfilled only by a multiplicity of state behavior imaginable. these provisions do not indicate, however, which of these behaviors are oriented: if they neither are all, if they’re just some, or if it is not any, nor establish the timing of these actions should be deployed” carrillo (1999: 69 ff.). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 98 reasons for the construction of a legal theory of social rights as fundamental rights law lacks sufficient guidelines, then the decision about the content of fundamental social rights is a matter of politics” (carrillo 1999: 69 ff.). in sum, the possibility of deriving specific mandates from the constitutional provisions of social rights is null and void, both in terms of the indeterminacy of the means and in the indeterminacy of the content of social rights, so, legal requirements binding as obligations or as subjective rights cannot be directly derived from the referred provisions. in any case, the social rights norms would only act as program norms, end-norms or realistic mandates –guiding principles on the political authorities– but not as requirements that give rise to an obligation or a definitive subjective right or that have a legal immediate effect. the critique of the indetermination of social rights is caused by their own inconsistency, incoherence and instability about the structural difference and the indeterminacy of the same. the first dart relates to the affirmation of the structural similarity of civil and political rights and social rights. it is understood that neither social rights are always rights that demand positive benefits, nor civil and political rights are rights of abstention. this results in the acquiescence of affirming a similar structure as civil and political rights –taking into account that if any difference is observed, it is a question of degree– while its protection corresponds to different deontic obligations, comparable to the ones which correspond to civil and political rights. this will result in a similar consideration of the indeterminate character of both the constitutional provisions on social rights and civil and political rights. a first example is in the structure and indeterminacy of the right to effective judicial protection. this one not only has a negative side, but also a facet of benefits, so the state is prohibited to generate situations affecting the right, that is, it should not affect access to justice, but rather should assign minimum guarantees in the process within a reasonable time, as well as ensuring that the guardianship is effective. this framework will be guaranteed only through the institutional designs of the judiciary, which implies not only legislative measures, but also administrative, procedural, institutional decisions, public action, material and human resources. this is predicable about all types of rights without exception, although there may be difference of degree or intensity. another example –in this case to make a contrast– is the right to health, the level of protection of this right entails from positions of defense to eminently helpful positions. thus, the state not only has the obligation to provide adequate medical centers for the access of citizens to this essential service, but also entails the obligation of the state not to generate situations that may endanger the health of the population, such as the case of the authorization of concessions, installations or projects that may harm health. therefore, both civil and political rights and social rights are linked since, alongside the rights of freedom, the right to strike or bargaining will be found. also, the rights to health or education will be the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 99 juan josé janampa almora correlated to rights to effective judicial protection or to due process and, of course, the right to life. in addition, the committee on economic, social and cultural rights (hereinafter cdesc) has drawn up relative resolutions that have given rise to two broad areas of obligation, alongside to the generic obligations –respect, protection and compliance (guarantee and promotion). on one hand, there are “medium and minimum obligations”, the latter related to those obligations to which a state is linked in a mediate manner at the same time as ratifying a human rights treaty. on the other hand, cdesc has strongly expressed on the “obligation of progressivity”12, which has become denser because of the committee's interpretative work. this is an obligation which requires the signatory state to act “progressively” and use the “maximum resources available” (añon roig 2010: 18 ff.). as these obligations are observed, they respond to a complex structural configuration, where they are not only refueled to negative obligations but also to positive obligations, and where the obligation does not respond to a specific type of rights, but without ideological, historical or structural reasons to all kind of rights. thus, the structure of obligations gives rise to guarantees and their correspondent effectiveness. in this way, it has been argued that the difference between civil and political rights and social rights are not such as advocated in a sector of legal literature, but rather respond to doctrinal taxonomy that operates more because of ideological and pedagogical grounds than legal reasons. hence, it is not only incorrect to affirm such a distinction from a structural point of view and its indeterminacy, but also is inconvenient or dysfunctional in assessing the obligations, violations and responsibilities that may arise from the state or individuals. these statements lead us to consider rigorously the relativization of the simplistic position conceived in the distinction between civil and political rights and social rights because of structural issues13 and therefore of indeterminacy of constitutional provisions. this option is shared by some authors who have analyzed the issue of the alleged 12 the progressive realization tends to have much complexity in the actions and resources required to effectively guarantee the effective enjoyment of these facets of protection of a right. democratic decision about the degree of protection to be provided to a fundamental right in their delivery facets, and the adoption and implementation of specific ways to ensure their effective respect, protection and fulfillment, assume that compliance with such obligations will be progressively attained. in this regard, compliance with such obligations is not satisfied with the simple state action, it must be adjusted to the constitution, so it should be aimed at ensuring the effective enjoyment of rights. 13 the colombian constitutional court through sentence t-769-2008 –dated 31 july 2008– stated that between civil and political rights and social rights, there is no such sustained difference, and it is only possible to use that argument for methodological issues, not because of its benefit right character, because all the rights have a positive side. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 100 reasons for the construction of a legal theory of social rights as fundamental rights distinction and observed that such distinctions are based solely on a skewed view of liberal ideological content14. the separation of social rights, on the one hand and civil and political rights on the other, respond more to a matter and approach of political order and not to its own nature-structure (abramovich 2002: 24) of the right or the deontic-logic plane (añon roig 2006: 120 ff.) this alleged difference –divided view– lies in the supposedly different structure of traditional civil rights, initialed as abstention rights, from social rights, which have a label of “rights to benefit”. this thesis has led to see social rights as reduced or undervalued rights; a linear, flat, harmonic, institutionally univocal vision of a fruitless process, that may prevent a clear observation about these rights, turning the interpretation into a “varnished ideology of dogmatic” in revenga’s words. the ideal view would be conceiving rights in continuity (añon roig 2008: 21-26 ff.), because rights cannot be seen as categories in isolation but should be appreciated from a unitary, interdependent and indivisible perspective. as a result, all the rights are interconnected and founded on the principle of human dignity. this thesis on the interdependence of human rights has been widely accepted in the literature (regarding relationship arguments and connection rights) (añon roig 2010: 26 ff.) apparently, if there is any difference between the rights in question, it could only refer to a “difference of degree”, depending on the greater weight that the obligations of defense or provision have in the right in question, rather than an eminently substantial difference. thus, it is certainly more obvious and visible to recognize a facet of obligations to social rights, so these may be called rights to benefits, although it is easier to demonstrate the existence of obligations of abstention (abramovich and courtis 2002: 23-25). this consideration is present in several social rights, such as the right to health that entails a state obligation to not to harm health, or regarding the right to education to not to affect education, and the right to the preservation of a healthy environment implies the obligation to not to destroy the environment. in addition, they also carry a state benefit, which for them truly represents the substance, the hard core, i.e. what in terms of häberle would be the essential content of fundamental rights15, in cases such as the right to health 14 “these distinctions are based on a totally biased view and naturalist role and functioning of the state apparatus, which coincides with the position of a minimalist state, guarantor only of justice, security and defense” (abramovich 2002: 2-3) 15 professor häberle says: “the essential content of the fundamental rights is delimited against legal assets of equal or greater value, through the inherent limits that protect the substance, according to the principle of weighting goods. immanent limits are the limits that correspond to the substance or encircle this. this formula makes clear that the essential content of fundamental rights is not a measure to be deducted “in itself” and regardless of the set of the constitution and the legal rights recognized by such rights. also, the essential content of a fundamental right and permissible limits of it constitute a unit” häberle (2003a:58-59). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 101 juan josé janampa almora care or free education, the absence of a state benefit automatically implies the denial of the right. in the same way, it is possible to support the thesis of the open or vague texture of both social rights and civil and political rights, whereas the problem of indeterminacy is not exclusively of a specific typology, because it is a character implying any right to provide in broad sense (alexy 2007: 393)16 –rights to protection, organizational and procedural rights and rights to benefits strictly in terms of robert alexy–. however, from this assertion cannot be deduced the defense of an absolute idea of indeterminacy, since there will always be a degree of determination of rights and a greater degree in relation to social rights. as it is pointed out, it is possible to establish a difference between the interpretation of social rights and the rest of the rights, in which the relative indeterminacy of all rights is a central issue. this implies that from the interpretation of rights in general, it is possible to affirm how, from the point of view of content, the interpretation of social rights is less indeterminate than that of the rest of the rights. the idea professor rafael de asís seems to have in mind is the ease of signal when an interpretation is contrary to the content of social rights (de asis 2009: 5-6 ff.). generally, it has been assigned a prima facie character not only to civil and political rights but also to social rights, which means that human rights require institutional commitments to become final rights. it means that the establishment of the content and means are conditioned to legislator’s will, however, it is also possible to appreciate these characteristics in civil and political rights, e.g. in the right to suffrage, whose institutionalization implies the power to vote with decisive force, the freedom to choose between various options, certain immunities (secret vote) and endless pretensions to the state (to convene elections, to conduct censuses and to publish lists). so, these preliminaries are necessary to enshrine all rights in definitive rights, because “the final shape of a right always depends on further institutional developments and that clarity, reality or intensity of the law in question does not depend of the effective possibilities to satisfy or protect it, although it required this to get its final configuration” (hierro 2009: 183) consequently, the configurations of social rights will depend on further institutional clarification –because of its indeterminate nature– and not on its mere literal or semantic statement. this feature emerges from all rights considered as principles17 –civil, political or 16 in the same vein, carlos bernal says: “(...) we have seen also the provisions defining liberties suffer from indeterminacy. this is not an exclusive property of the benefit rights. it is often argued that the kind of indeterminacy of these provisions is different, and this different character affects the type of bonding that occurs to the legislature (...)” bernal (2007:371). 17 “the principles are rules that order something to be done to the greatest possible extent within existing legal and real possibilities. therefore, the principles are optimization commands, which are characterized by the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 102 reasons for the construction of a legal theory of social rights as fundamental rights economic, social and cultural rights included–. it is necessary to depart from this argument, since it is considered wrong to maintain that rights in general enjoy absolutely a prima facie character and not regarding its definitive features. as we have already pointed out before, the constitutional provisions are not in any case indeterminate, on the contrary, there are always minimum determinations, most clearly in the case of social rights, which constitutes a limiting criterion to the legislator or any other body or authority that interprets the constitution. considering the previous approach, gerardo pisarello points out that “in reality, nothing allows to infer that concepts such as honor, dignified life, property or freedom of expression are less obscure or more precise than the highest possible level of health, basic education or decent or stable work. thus, all rights have gray areas and a core of certainty, from which content and basic duties can be extracted to the public powers” (pisarello 2007: 67). therefore, only conceptions under simple ideological prejudices will argue that social rights are the only ones that obey a sort of an insurmountable structural dark (pisarello 2007: 68). in conclusion, the distinction from the approach of indeterminacy is especially spurious and nothing consistent. holding the opposite –the absolute indeterminacy of social rights– would suppose leaving meaningless the right and it undermined the normative character of the constitution18. iii.2. social rights are expensive and dependent on the economic capacity of the state (social rights are not fundamental rights) defensive imprint of this approach is related with the scarcity of economic resources which makes condition the lack of legal effectiveness of social rights19. it is also known as the absence of economic or budgetary availability, which means that social varying degrees of compliance and that the measure of compliance due not only depends on the real possibilities, but also legal” alexy (2007:68). 18 “the circumstance related to the lack of prescription about the means that the legislature must implement regarding benefit rights, cannot allow deducing a normative force loss of the prescription of its purposes. ends are prescribed in any case, and consequently, the legislature is at least ordered to adopt one of the possible means and to achieve a minimum level of satisfaction of the established aims” bernal (2007: 371) 19 it has been noted that “(...) a fundamental right is primarily a subjective right, i.e. a legal empowerment (content of law) that the constitution attributes to a subject to defend, ensure or hold certain expectations (object the right). that empowerment will consist in the possibility to require a third party, with the normative force of the constitution, whether a public authority or a private individual, the fulfillment of a duty (to act, in some cases, or refrain from acting, in others). the fundamental rights are only the ones involving the fundamentality of the fundamental rule of law, the constitution, which means it sets out these rights and gives them availability for its potentially immediate starter, as a legal source directly applicable and as a source of other sources of order. it preserves the fundamental rights from their alteration or infringement by infraconstitutional standards (and in some cases even constitutional) and made unavailable by the legislature (and even the body of constitutional reform)” bastida (2009:116 ff.). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 103 juan josé janampa almora rights, unlike civil and political rights, inevitably require for their realization the disbursement of economic resources in large proportions. the high cost of social rights intends to deny the normative character of social rights from two dimensions: as a reason to highlight the structural difference from the premise of the factual unconditional nature of civil and political rights against the factual conditionality of social rights, and as a paradoxical reason, to highlight the failure to achieve a reasonable degree of protection of social rights, because it depends on resources necessary for their satisfaction and availability in the state treasury. in this regard, the first dimension implies that the right to a positive act –facere– in favor of the citizen stumbles with numerous constraints in the case of social rights, mainly from (factual) budget order, depriving the efficacy of the constitutional recognition of the right in a variable measure. this situation is known in german doctrine as “reserve of an impossible”, while the spanish constitutional court has developed this concept from the reserve of the economically possible20. among those who have defended the position and relationship between social rights and economic outlays21 claim that for the realization of social rights, the use of the financial means of considerable size is required, which makes them dependent, thereby generating a rights crisis, as economic costs will condition the guarantee of rights. this is especially noticeable in rights such as health, education, housing and food. the second dimension is associated with the idea of the impossibility of achieving a reasonable degree of protection of social rights. given the high cost that seeks to sustain this type of rights, these require a prior assessment and decision within the framework of the state budget policy and its fixations of priorities, which will affect the scope and intensity of specific legal claims (böckenförde 1993: 65). this leads to inefficiency and offers an alternative nature of social rights, bringing as a consequence a non-suitable protection. the result will be the impossibility to support directly the claimable judicially claims, since it inherently does not pose an immediate right (for citizens). 20 the spanish constitutional court has held that “article 41 of the spanish constitution [sc] establishes social security in a state role in which the remedy of situations of need occupies a decisive position, but such situations must be assessed and determined considering the general context in which they occur and about economic circumstances, availability of time and needs of various social groups”. stc: 213/2005, of 21 july, fj. 4. with respect to article 27.9 sc, “the authorities will help schools that comply with requisites established by law (...) such assistance is made considering other principles, values or constitutional mandates (...) also such mandates the unavoidable limitation of available resources”. stc 77/1985 of 25 june, fj. 11. 21 böckenförde argues “that of fundamental rights that claims to provide for its implementation require the use of financial means of considerable size (...) is also extracted. the concrete guarantee of fundamental rights becomes dependent on state funding available. the economic impossibility is presented as a limit necessary the (delivery) guarantee of fundamental rights. this means abandoning the unconditional support of the claims of fundamental rights” böckenförde (1993: 65). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 104 reasons for the construction of a legal theory of social rights as fundamental rights in conclusion, the factual conditionality of social rights, as indicated by a sector of the legal literature, notes subordination to economic cost, i.e. the will of economic funding that the state provides for their protection. thus, the criticism raised against this approach argues that such speculations have been used to structurally separate the civil and political rights from social rights. the argument largely becomes an excuse to leave out the constitutionalization of social rights or in any case their classification as a fundamental right, thus, the state would not be obliged to protect social rights as true fundamental rights, treating them as mere programmatic norms22 or as end-norms23 or realistic mandates. to use other examples different to the ones we use in criticism of indeterminacy of constitutional provisions on social rights, this time we will refer to the right to political participation –right to vote and to be elected– in the active facet of the right to vote –right to vote–. it is evident the state has to ensure the compliance of this political right through economic resources, what means that there must be a budget disbursed by the executive and approved by the legislature to ensure it. it makes understand that the state must have public resources to support electoral bodies responsible for carrying out the elections, which in turn depends on public resources. another example relates to access to justice, due process and effectiveness of judgments rights. this right has an obvious delivery dimension, which may be guaranteed by a constant economic cost required by justice system. a good justice service requires disbursing a budget, thus, these fundamental rights also become expensive. no judicial system can operate with a vacuum budget. no court can function without receiving regular injections of taxpayers' money to fund their efforts. its operating expenses are paid with tax 22 “the conception that the iusfundamental delivery norms must be regarded as programmatic rules, deny the possibility that these may emanate binding rules for the legislator, not even prima facie, or legal positions of a triadic structure where the state is the passive subject, the object is a benefit and the rules are aimed at to satisfy the basic needs of the individual or to provide the essential conditions for the exercise of freedom (...) provision rights as programmatic norms deny any type of binding against the legislator. correspondingly, it denies any expectation, advantage or attribute that could claim the individual and that could be considered enforceable by judicial process (...) [the rights] only play a political role to be a source of inspiration for the content of the laws” bernal (2007: 368) 23 “the conception that defines benefit rights as end-norms of the state intends precisely to reconcile the legislative level of discretion with the binding nature of this type of iusfundamental precepts (...) the rules of final programming are characterized because (...) they prescribe the state the duty to pursue or achieve a particular purpose, but not the way or the means (...). the constitutions leave open the discussion about the most appropriate means and the opportunity required to obtain the objectives. this discussion should be conducted in the field of politics (...) this conception is separated from the thesis of programming norms for which, the fact that the legislature is not bound to the means implies that neither it is to the purposes. for the thesis of the end-norms of the state, however, the legislature is bound by an obligation to pursue the constitutionally established aim, although it has full freedom to decide on the means and opportunity to implement them” bernal (2007: 375). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 105 juan josé janampa almora revenues. as far as the defense of rights depends on judicial supervision, rights cost at least what it costs to recruit, train, match, pay and monitor the system (holmes y sunstein 2012: 65). in that sense, s. holmes and c. r. sunstein stated in their widely-acknowledged book “the cost of rights”24 that all rights cost money. given its nature, it is impossible to protect or enforce them within funds and public support. this is true for old and new rights. both welfare and the right to private property have public cost. the right to freedom of contract involves no less cost than medical care, the right to freedom of expression or decent housing. all rights receive some public treasury (holmes y sunstein 2012: 65). the same statement may be referred about classical liberal rights such as the right to inherit or the right to property. the latter is protected by right to private property law, coercively excluding non-owners as well as the configuration of all registration structure that gives legal certainty in the transfer of movable or immovable property. a liberal legal system not only protects and defends the property; it defines, creates and maintains it. without legislation and without judgment (judicial guarantees) there can be no property rights. the state identifies, for example, the obligation of property owners to keep and make repairs if needed, and this entails an economic cost, a positive action by the state, i.e., the need for government action25 to collect taxes and fulfill this right. so the financing of basic rights through tax revenues helps to see clearly that rights are public goods, these are social services funded by taxpayers and administered by the state to improve the collective and individual well-being. therefore, all rights are positive rights to some extent26. 24 to holmes and stephen r. cass sunstein, the expression “cost of rights” is a richly ambiguous expression, because the two nouns up have multiple meanings and inevitably controversial. to keep the analysis focused on that dimension – and – the least controversial possible, “costs” mean here costs included in the budget, while “rights” are defined as important interests that can be reliably protected by individuals or groups using government instruments. holmes y sunstein (2012: 33). 25 “the government should help to maintain owners’ control regarding the resources and punish the use of force, the fraud and other offenses in a predictable way (...). good part of the civil code is dedicated to that in relation to property. and the criminal justice system channels a significant amount of public resources to prevent the commission of crimes against property (...) [these are] fronts that are publicly financed, against those who violate the rights of owners” holmes y sunstein (2012: 82). 26 “positive rights are those rights which promote public aid, demanding the government for its performance, driving equality have active intervention, reallocate the money raised are charitable and tax, grant services, which not only include the right to receive coupons to redeem food, subsidized housing and minimum welfare payments, education, health, environment, but also the rights referred to above, such as property, judicial protection effective, the right to political participation, the right to inheritance, among many civil and political rights called. this suggests to us that there is no such differentiation between social rights and civil and political rights” holmes y sunstein (2012: 60). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 106 reasons for the construction of a legal theory of social rights as fundamental rights these freedoms are developed because such spaces of individual freedom are considered important by a sector through collective decision. as a result, the sector is concerned about the creation of an institutional framework which preserves and promotes the rights, and is born through a system of individual rights, which empower to oppose against undue interference of third parties or the state itself. this warranty is possible after the state has invested enough resources in creating the institutional structure that enables the regularity of those freedoms. social rights also depend on a collective decision in order to access basic and necessary goods. in some countries like england or canada, these rights are developed with absolute regularity and guaranteed as subjective rights, while in other countries social rights are moving poorly and erratically and are set as subsidiary rights, commoditized, and deprived of an immediate effect. it reflects the absence of the state in public policies and social programs. so, the argument of the cost of rights is not solid enough to affirm the distinction between social rights and civil and political rights and, therefore, these should not have a different legal effect, since all rights discussed above correspond to positive actions by the state, which obviously entails an economic cost, which is characteristic of all rights, without exclusion. social rights do not require an optimum degree of compliance, by reference to the economic and budgetary conditions available, even more when this occurs not only social, but also with civil and political rights, which presuppose an economic investment of huge amounts of money. this idea is focused to criticize sectors who believe that social rights are limited in their expensive nature, since never a degree of appropriate and necessary protection of social rights will be achieved. if we accept this argument we are making ours the idea of scarcity, which can serve to conceal unjust decisions related to the allocation of resources for the satisfaction of social rights. governments generally justify the lack of public policies on social rights, precisely because of the limited availability of economic resources. this argument ignores both the amount of public resources available to the state, such as how to prioritize resources for each sector of rights are not set-in-stone situations, but these depend on many factors, including political will and the operational capacity of the state, or both, since the size of the budget can be increased according to tax collection. the amount of taxes, for example, is decided by the parliament and the executive, depending on economic variables, i.e. through contraction or expansion fiscal policies where taxes, spending and subsidies are the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 107 juan josé janampa almora used. however, taxes “also hide value considerations on distributive justice: how much we contribute as a society and what are the basic needs that must be met for all citizens”27. however, if we use the theory of economic dependence that raises the scarcity of resources, it would become a partially legitimate reason for the government to reduce the budget. this statement should not only have implications for social rights but also on civil and political rights, which puts these in equal generation of rights, which largely implies that all rights depend on the collective contribution ultimately seen as selective investments of scarce resources (holmes y sunstein 2012: 154). resource scarcity may be reduced if society would be responsible enough when contributing taxes, and whether public servants were responsible enough to use the proceeds obtained for strictly public purposes and not to destine them to private enrichment (holmes y sunstein 2012: 178), so rights also depend on what will be called civic virtue (holmes y sunstein 2012: 172). in conclusion, it is not true that social rights cannot achieve an adequate and sufficient level of protection; it can happen that this shortage reflects inadequate social cooperation scheme –tax collection injustice– or an unequal distribution of burdens – distributive injustice– product of an inadequate “prioritization” of state resources or a marked “inefficiency” in the execution of public spending. the difficulty often does not lie in the low rates of gross domestic product (gdp) registered in a country, but in the will to change distributive situations and governmental “naturalized” practices which are highly damaging to the full satisfaction of social rights. so our rights are still dependent, day after day, on how much the state is willing to spend and how; thus, rights must fight in the political arena and not only at the policy level. finally, if the state makes good revenue through taxes, it will no longer have limited resources, and someone will be responsible for the task of deciding which functions privilege over others. it follows that discretionary spending implies discretion in the 27 “the problem in contemporary democracies is that the issue of the distribution and allocation of resources, central to the life of our rights, has become more a technical than a political issue, handled more in the cabinet of the ministry of economy in instances of political deliberation. the budget of the republic in our country, for example, is made by the ministry of economy and proposed by the president to congress who approves (article 78 of the peruvian constitution of 1993). this system allows an orderly and responsible for state finances design, and makes the parliament responsible for requesting and controlling the size of budget justifications and the distribution of resources (article 80 of the peruvian constitution of 1993). however, parliaments today do not make a very strict budget control made in the technical bodies of the executive because of party discipline or disdain for control issues that are often very sophisticated, much less undergo allocative decisions therein contained through a broad public debate or the participation of civil society”. so, there are deficiencies in the legislative when exercising control over the executive regarding the guarantee of social rights through economic budget, generally because the political party that governs in the executive has the majority in parliament. león (2013: 93). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 108 reasons for the construction of a legal theory of social rights as fundamental rights enjoyment of rights. if we are convinced, for example, about the priority of social rights, not to fight this battle would mean in practice to weaken the distributional and potentially emancipatory role of the state (holmes y sunstein 2012: 23), substantially affecting the value, scope and predictability of our social rights. in this sense, there are more expensive rights than others, but it is inadmissible to cling on the idea of the existence of inexpensive and expensive rights, while all rights are necessarily expensive its cost stays through the time. it means that it must be organized an institutional and organizational framework to attend social rights’ moral value, political significance and legal operation. otherwise, social rights will remain mere rhetoric (ansuategui 2010: 62 ff.) or will be considered only paper-and-ink rights. iii.3. social rights are not genuine subjective rights (not fundamental rights) among the authors holding social rights not configured as subjective rights is f. atria (atria 2004: 15-59 ff.). he understands that if the notion of right is understood as a subjective right in legal sense, the notion of social rights would become a contradiction between the terms. therefore, it must be rescued an alternative way of understanding the political concept of rights in order to avoid this contradictory conclusion. this situation leads to consider that a right cannot be understood as a social right to the extent that the former is understood as a subjective right (atria 2004: 15-59 ff.) because by the very nature of the concept of rights and its enforceability, social rights cannot be conceived as individual rights and escape the justiciable form of protection typical of civil and political rights (atria 2004: 15-59 ff.). since enforceability is the main feature of subjective and fundamental rights, this quality would detract immediate legal effect, undermining the protection of social rights at the jurisdictional level. finally, it would deny them the category of fundamental rights. so if we consider that social rights have the character of subjective right, as f. atria states, they would be simple aspirations, possibilities or idealities, whose satisfaction would not apply. in any case, “it would be about group rights or protecting rights of collective interests, while the expression ‘individual rights’ would only apply regarding civil and political rights. the author also makes a characterization of civil and political rights referring that these have a subjective, individual and defense character. also, its protection is against third parties and those are correlative to duties but prior to them. likewise, civil and political rights are based on self-interest, unilateral and certain. contrario sensu, social rights are not configured as individual rights because they seek a human way of life, in which everyone interconnects to others based on the principle of solidarity; these are secondary rights against their correlative duties, neither unilateral nor determinative. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 109 juan josé janampa almora on the other hand, r. garcía manrique makes a deeper and more critical study about social rights as subjective rights, arguing that the substantial reason to not to set them as individual rights is its lesser ability. social rights express ideal states of things far from reality in a greater extent than other rights. this greater and inherent alienation makes a difference with other rights, which derives certain legal and political consequences. (garcía 2010: 73-105 ff.). from this perspective, what characterizes social rights is that their deontic divergence is much greater than in liberal rights, so the difference between them and other rights is gradual28 and conjunctural. in consequence, traditional social rights show a significantly lower degree of realization that the ideals expressed by liberal rights. a further treatment of the defended position refers that the argument that denies social rights as subjective rights, is made from the content of social rights for two reasons: first, because social rights are goods to market service. the market solves in principle the satisfaction of goods and the state is alternatively responsible of such satisfaction. thus, the content does not generate an equal division of property, which clearly prevents them to be accomplished as liberal rights. thus, garcia manrique argues that the scope of social rights suffers from an uncertainty in the realization of the same regarding to maximum quotas of enjoyment. in conclusion, the demands of social rights are far greater than liberal rights’, because the assets associated therewith have not been completely decommodified, resulting in an unequal, minimum and alternative market sharing (garcía 2010: 73-105 ff.). in that sense, the author states that the difference between rights is gradual and conjunctural, which has evolved precise legal effects on the legal technique of the subjective right, which is precisely the technique chosen to put fundamental rights into practice, so liberal rights are better suited to it, while social rights have deficiencies. for this author, to demonstrate how the technique of the subjective right affects more to social than liberal rights, the following reasons are necessary (garcía 2010: 73105 ff.): (i) if social rights can be configured as fundamental rights, (ii) then, the subjective right will be “a claim conferred to a subject (or another type of subjects) against another subject (or another type of subjects) to whom a duty or correlative ‘obligation’ is imposed. (iii) given this previous concept, it is made a division between real rights29 –whose content 28 “the difference is gradual because reality can approach more or less to the ideal state of affairs expressed by a right and here it is only stated this distance is greater in the case of social rights, without the possibility to express how much is it, because this depends on the specific right and the political community concerned”. in garcía (2010: 73-105 ff.). 29 true rights are characterized because they are susceptible of judicial protection, which in turn requires both the content of the right (the behavior or performance that can be demanded) and the subject to which the right is exercised to be equally precise. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 110 reasons for the construction of a legal theory of social rights as fundamental rights and bound subject are precise– and fictitious rights30 –whose content and bound subject are not precise–. (iv) the constitution does not usually set the precise “content” of fundamental rights, so the accuracy of its contents may take place by legal or judicial processes. (v) thus, many of the “measures” may take the form of a subjective right; this legal technique offers many possibilities. (vi) however, this technique is limited: not everything that can be done for an ideal can be done through the attribution of subjective rights to citizens31. accordingly, an ideal setting as a subjective right always implies its restriction. (vii) in the case of social rights, whose claim must be restricted for judges to identify and satisfy it, it must be restricted in a greater degree than in the case of fundamental rights. (viii) hence, a social right can be paradoxically configured as a subjective right. (ix) however, these political objectives (social rights) cannot be guaranteed only with the technique of the subjective right, since setting up a social right as a subjective right necessarily requires its restriction. therefore, a subjective social right will always be a minimum social right or a right to a certain defined set of benefits (or abstentions) which alone cannot fully guarantee the desired objective, but only to some extent. (x) the author concludes that social rights will not only be minimal for its alternative nature –since they are commoditized– but also by its subjective right nature. for this sector of the academy, which holds the minimum subjective nature of social rights, claim that although the restriction fits all fundamental rights, liberal rights have to tolerate less the restriction than the ideal of social rights, i.e., the price paid for the configuration of the political ideals as subjective rights is its minimization (böckenförde 1993: 80), a price that is higher in the case of social rights than in the case of liberal rights because they have minimized in a greater extent. the author concludes referring this community cannot be achieved with minimum social rights such as those guaranteed by liberal constitutional systems, which can alleviate poverty but not inequality. in that sense, there is a sociological difference between social rights and other fundamental rights –liberals– and their different degree of realization; also, two differences are reflected, on the one hand, legal will claim the worst adaptation of the former to the subjective rights, on the other hand, politics, which has decided that the former are minimum and the latter are not. one of the alternatives proposed in relation to the negation of social rights as authentic subjective rights is determined by böckenförde, who states that delivery rights provisions are specified normatively on objective legal mandates (böckenförde 1993: 30 fictitious rights are those that do not meet any of these two conditions: their content or the obligated subject are not precise, so these are not susceptible to judicial protection. 31 according to the concept assumed, a subjective law requires judicial protection. therefore, the correlative obligation must be precisely defined, so the judge can determine whether it has failed and order their execution. however, only a minimal content can be accurately defined because the maximum content of an ideal (a) has an aspirational nature that does not support precise definition, (b) it “moves steadily forward” and (c) it is a constant subject of political discussion. therefore, it is not a strictly legal matter. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 111 juan josé janampa almora 80) directed to the legislature and the public administration. therefore, delivery rights cannot be concrete under legal triadic positions composed of an active subject, a subject or passive person and an object. the indeterminacy of the legal provisions and the necessity to respect the powers of parliament impose to leave aside the active subject, that is, not to attribute to the holder of a subjective right the possibility of requiring judges to carry out a specific law. the thesis of the objective mandate makes separate from the fundamental nature of the subjective right –the ability to be enforceable by citizens–, a theory adopted in spain with which the interpretation of social rights as apparent rights recognized in chapter iii of title i sc. böckenförde accepts that determining the rules as legal objectives mandates do not follow that these are programmatic propositions, but they hold a binding force in three aspects: 1) a legal duty –objective mandate of completing the order set by the provision posed by the legislator, 2) it prohibits inactivity and rude neglect regarding the aim of the norm by the state and 3) it prohibits the definitive abolition of legislative measures, once they have been adopted or its reduction beyond the limits, able to neglect the aim of the norm. in this regard, carlos bernal pulido argues that the bind that delivery rights generate on the legislature generates a subjective legal side32. the reply to the approach of denial of the subjective nature of social rights, presupposes the contextualization of our time about the current constitutional state which has been presented as a subsequent step to the conception of the rule of law. whether it suppose a substitution of terms, it should not be understood as overcoming the rule of law but must be understood as a higher stage, while the constitutional state is characterized by the fact that the validity criteria established by the basic rule are in the constitution (ansuátegui 2013a: 271-272). for other authors such as gustavo zagrebelski, the transit of the rule of law to the constitutional state means a genetic change (zagrebelsky 2003: 33), i.e., the existence of a break in continuity, so the constitutional state is understood as the replacement of the rule of law. in short, either one or the other position, there are elements that characterize the new model constitutional state33, either passing or genetic change. 32 “they give rise to claims of defense of the individuals concerned against inactivity, a gross neglect or definitive withdrawal of the measures taken in implementation of the constitutional mandate" bernal (2007: 382). 33 thus the constitutional state, is the typical state of our time, which "(...) is characterized by human dignity as anthropological and cultural premise for popular sovereignty and the division of powers, fundamental rights and tolerance for the plurality of parties and the independence of the courts” häberle (2003b: 3) for robert alexy, “the constitutional democratic state is characterized by six fundamental principles (...) human the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 112 reasons for the construction of a legal theory of social rights as fundamental rights also, as a new philosophy for the limitation of power neo-constitutionalism(s) was born34, leaving behind the constitutionalism of the late eighteenth century. thus, constitutionalism as a new paradigm of law lies historically at the point following the catastrophe of the second world war and the defeat of nazi-fascism (ferrajoli 2001: 70). in the context of neoconstitutionalism or constitutionalism as a new paradigm of law35 as luigi ferrajoli says, it is proposed a clearly formal and structural fundamental rights theoretical concept36. this definition consist in fundamental rights as “all those subjective rights universal to all human beings as endowed with the status of persons, citizens or persons with capacity to act; subjective rights understood as any positive (benefits) or negative (no injury) expectations, attached to a subject by a rule of law; status understood as the condition of a subject, provided for a positive legal norm, as the foundation of its holder suitability of legal situations and/or author of the acts exercising these situations” (ferrajoli 2004: 50). this definition proposed by l. ferrajoli allows found four theses that help to conceive neo-constitutionalism because of a profound internal transformation of the paleopositivist paradigm model. so, to argue that social rights are fundamental rights and therefore are understood as subjective rights, the study on three of them will be addressed: dignity, freedom and equality as well as the principles relating to the structure and purpose of democratic and social rule of law” alexy (2003: 31). 34 “it is only after the second world war that constitutionalism would have changed their characteristics, to the point of setting up a new theory that the doctrine agrees call neoconstitutionalism(s)” alterio (2014: 233 ff.). in this sense, we cannot fail to mention riccardo guastini who pointed out that the foundations of constitutionalism are nothing more than “a rigid constitution, the judicial guarantee of the constitution, the binding force of the constitution, the over interpretation of the constitution, the direct application of the constitution, the interpretation of the laws under the constitution and the influence of the constitution in political relations” guastini (2003: 50-57 ff.). 35 for luigi ferrajoli “(...) above all, the conditions of validity of laws are changing; are not dependent only in the form of production but also of the consistency of their content with the constitutional principles (...); changes (...) the epistemological status of legal science, which the possible divergence between constitution and legislation confers not only exclusively explanatory role, but critical and projective its own object (...) that the legal science has a duty to prove in order to be eliminated or corrected; the role of jurisdiction is altered, which is to apply the law if it is constitutionally valid (...) and that the judge has a duty to censor the law by denouncing its unconstitutionality, as it is not possible to interpret its constitutional sense; finally, a transformation product paradigm of constitutionalism is equivalent to introducing a substantial dimension not only in the conditions of validity of the rules, but also in the nature of democracy” ferrajoli (2003: 1819). 36 a number of criticisms have been against this conceptualization of fundamental rights, mainly that the concept of fundamental rights proposed by luigi ferrajoli is characterized as “decontextualized” for not considering the historical experience and legal reality, and the neutral or formal concept construction is not caused by ignorance but by the lack of recognition of relevance of these assumptions. ansuátegui (2013b: 42). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 113 juan josé janampa almora 1) the difference between fundamental rights and economic rights; 2) fundamental rights and their relation to real democracy; 3) the relationship between the rights and guarantees. regarding the first argument, the structural difference between fundamental rights – whose theoretical heritage is a product of natural law and contractual philosophy– and patrimonial rights37 –whose ancestry is generated by civilian and roman tradition– we find four differences: a) fundamental rights are universal rights –universal quantification of holder subjects– while patrimonial rights are singular –there is a unique determined holder– ; b) fundamental rights are inclusive, while patrimonial rights are exclusive; c) fundamental rights are inalienable rights –subtracted both to policy decisions and market–, while patrimonial rights are rights available; d) patrimonial rights are horizontal –intersubjective civilian relationship–, while fundamental rights are vertical publicist rights, from the individual against the state (obligations and prohibitions) (ferrajoli 2004: 42) this difference makes evident what underlies the technique of subjective right; the subjective right has its own structural particularity regarding patrimonial rights and subjective situations are heterogeneous and opposite each other in several respects concerning fundamental human rights. the second thesis is concerned to the relationship between fundamental rights and real democracy, under the characters listed above on fundamental rights –universal, inclusive, inalienable and vertical rights–, these are configured as substantial links normatively imposed both majority decisions and free market, while no political majority may dispose and reduce freedoms and other fundamental rights to majority decisions38, i.e., no contract may have life, cannot decide that a person is condemned without proof, hence the substantial connotation, printed by fundamental rights –both rights of freedom and social rights– towards the constitutional state of law and the constitutional democracy39. finally, the third thesis is focused on the relationship between rights and guarantees, which rebuts the idea regarding social rights would not be right, because they lack adequate 37 for the economic rights, the ascendancy was held from civilian and roman law. 38 “it is disproved the current conception of democracy as a political system based on a set of rules that ensure the omnipotence of the majority. if the rules on representation and on the principle of majority rules are formal to what is decidable by the majority, fundamental rights circumscribe what we can call the undecidable sphere”. ferrajoli (2004: 51) 39 “the paradigm of constitutional democracy is the son of contract philosophy in two ways: in the sense that constitutions are social contracts written and positively, fundamental covenants of civil coexistence historically generated by the revolutionary movements with which sometimes they have been imposed on public authorities, other absolute way, as sources of legitimacy. and in the sense that the idea of the social contract is a metaphor for democracy: political democracy, since it refers to the consensus of the parties and, therefore, it is to establish, for the first time in history, a legitimization of political power from below; but it is also a metaphor from the substantial democracy, since this contract is not an empty agreement but whose clauses and also as precisely because the protection of fundamental rights whose violation by the sovereign legitimizes the breaking of the covenant and the exercise of the right of resistance” ferrajoli (2004: 53). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 114 reasons for the construction of a legal theory of social rights as fundamental rights judicial guarantee or legal protection, which would lead to justify the denial of its subjective nature and the poor use of technique and, as a result, social rights would not be understood as fundamental rights. criticism is done on the concept of rights proposed at the time by h. kelsen: “the essence of subjective right, when it is more than the mere reflection of a legal obligation, lies in the fact that a legal rule grants an individual the legal power to claim, in an action for breach of the obligation” (kelsen 2005: 148). against this kelsen notion of subjective right, two reductions of subjective rights emerge: (i) as a primary guarantee –the right consists in negative or positive expectations with the corresponding obligations (of delivery) or prohibitions (of injury)–; (ii) as a second guarantee –as obligations to repair or judicially punish violations of the rights, i.e., violations of their primary collateral guarantees– (ferrajoli 2004: 41). ferrajoli argues these identifications are theoretical propositions that can be disproved by actual reality of law. accordingly, there may be primary gaps by default of the stipulation of obligations and prohibitions that are primary guarantees of subjective law, and secondary lagoons as a lack by the obliged bodies to sanction or invalidate its violations, in order to apply secondary guarantees. if this possibility happens, the existence of subjective rights stipulated by a legal norm cannot be denied; the lagoon making it a right in a paper could be regretted afterwards, but next, affirming the obligation of the legislature to remedy the deficiency or lacuna (ferrajoli 2004: 61-62). at this time, the difference setting fundamental rights and economic rights is in this regard that fundamental rights are immediately posed by abstract norms where the existence of guarantees –primary and secondary– it not is taken for granted, by relying on the express stipulation rules of positive law. it would be absurd to deny their existence and their guarantees only for such failure. however, the opposite happens with patrimonial rights, because such rights are not prepared but pre-arranged by hypothetical standards as contracts effects, which is the source of the obligation –primary guarantee– (ferrajoli 2004: 62). therefore, positive and norm-dynamic nature of modern law is the distinction between rights and guarantees, so that is the positive rule of the legislature which forces us to recognize that the rights and guarantees exist, and these apply both to freedom and social rights, as well as to the international level. in this situation, it has been noticed in the constitutional enunciation of social rights, the absence in developing positive and adequate social guarantees –defense techniques and justiciability– comparable with liberal guarantees given in this scenario, resulting in lower degree of realization. this means a stark divergence between norm and reality, which must be filled or at least reduced. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 115 juan josé janampa almora complementary to those stipulated by luigi ferrajoli is pertinent to bring up the statement made by robert alexy on the concept of subjective rights proposed by hans kelsen. alexy maintains that it seems unnecessary to speak of a right only when there is the legal capacity of its imposition –legal power or competition–. for example, through the establishment of a lawsuit, certainly it is possible to define the concept of rights, but such definition does not reflect the existing use of language nor is fruitful for the understanding of the legal systems (alexy 2007: 181) to analyze this precedent aspect robert alexy stressed that a structural theory what matters are the “analytical issues” of subjective rights, therefore, he argues that “rules, positions and relationships” must be differentiated, highlighting to conceive subjective rights as legal positions and relations. this situation will allow to distinguish between the reasons in favor of individual rights, the individual rights as legal positions and relations and how subjective rights can be protected and legally imposed (alexy 2007: 177-178). thus, the distinction between statements on reasons –in which “g” is a necessity–, statements about rights –in which “a” is entitled to “g”– and protection statements –in which “a” can claim the violation of his right to “g” through a lawsuit40– will make one not to fall within the scope of the controversy about the concept of rights. statements about reasons are obviously more differentiable against the rights statements while it is a foundation relationship, however, complications arise when statements about rights and protection statements concerned. in this case, protection statements –to claim the violation of a right– also express a “legal position” as statements about rights –in which somebody has a right to something–. in this regard, the relationship will be between two positions or rights (alexy 2007: 181) it should be stressed that this situation will enable to understand the plurality of individual rights, which is the analysis and classification of those “legal positions”, which are called rights. we can find several authors who classify differently the legal positions, while the variety of what is called subjective right, creates a terminological problem. for r. alexy “it is most important (...) the intellection of the structure of the different “legal positions”. it is advisable, therefore, to use the expression “legal right” following the existing use as a general concept for very different positions, and then, within the framework of this concept, drawing distinctions and carry out terminological characterizations (alexy 2007: 185). 40 robert alexy believes that if the technical and organizational reasons linked the statement about rights is the central legal doctrine. in alexy (2007: 183) "regarding the theory of law which would have to say is that there be neglected or the conceptual level about rightsstatements or the reasons -the justification for rights-. integrate these two aspects is the challenge to build a non reductionist theory of rights " parcero (1999:300) the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 116 reasons for the construction of a legal theory of social rights as fundamental rights here, robert alexy understood that the positions are to be designated as rights, rights to something, freedoms and competencies. (alexy 2007: 186) analyzing each of them stresses the “rights to something”, while it will be divided into two dimensions, on the one hand, the rights to negative actions and, secondly, the rights to positive actions. within the latter, there are rights to positive actions, and underlying there are strictly speaking rights to benefits, what ultimately would become the fundamental social rights. this statement will allow understand social rights as fundamental rights and therefore as subjective rights. in that vein, robert alexy understood fundamental rights as a whole; as a beam of iusfundamental positions. the assembling of a bundle of positions corresponds to an ascription of a beam of rules to a fundamental right norm. thus, he holds the rules and positions can be divided according to three points of view: 1) according to the positions in question in the system of basic legal positions. 2) according to the degree of generality. 3) according to a rule and principle character, if they are definitive positions or prima facie (alexy 2007: 241-243). in summary, to overcome these denying theses of the subjective nature of social rights (as fundamental rights), it is argued the following: (i) the objections made by fernando atria and ricardo garcía manrique are thought from private or patrimonial law in relation to subjective right structure, because they argue that a subjective right is “a claim conferred to a subject (or kind of subjects) against another subject (or kind of subjects) to whom a duty or correlative obligation is imposed”, where individual rights are conceived as natural rights, of defense and protection against attacks by third parties, but prior to them. as ferrajoli referred, the concept of subjective rights from the patrimonial perspective responds to predisposed rights by hypothetical norms as effects of contracts, with an exclusive, singular, available nature, which are born from a slope of civilian and roman law traditions, with powers conferred under that condition. it may be noted that this connotation is unmatched in terms of how individual rights are understood from the perspective of fundamental rights, which was born from the natural law and contractual philosophy in the eighteenth century, reflected in the 1789 declaration of the rights of man and of the citizen. it is only necessary to read article 1 which states that “men remain free and equal in rights” to understand their universal and inclusive nature. (ii) the possibility of considering that social rights are not enforceable rights is refused, a thesis formulated by fernando atria, while according to technical possibilities, it the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 117 juan josé janampa almora has been developed a variety of social rights justiciability instruments41 of direct and indirect nature. indirect instruments are related to formal and substantive equality principles, due process and effective judicial protection and civil and political rights (by connectedness). also, by direct mechanisms consistent in the protection through the rule of law clause and the principles and values of the constitution, progressivity, irreversibility, the core content of the right and the unconstitutionality by omission. therefore, these formulas have become a way to shape social rights and lead its enforceability through subjective right nature. indirect enforceability of a social right is obtained from the invocation of a different right, forcing its consideration through the potential of justiciability and protection mechanisms provided by other rights (abramovich 2002:132-168). faced with these strategies, g. pisarello postulated the interdependent judicial enforceability and politically aware nature of economic, social and cultural rights (hereinafter escr) stating that this intuition was already contained in the 1993 vienna declaration according to which all escr are independent, indivisible and actually susceptible rights. all rights, social or not, have any content, or imply any obligation enforceable at the court. nothing prevents them from being thematized as constitutional judicial protection of social rights. in this regard, the constitutional tribunal protects against public and private powers, not directly, but by its connection with other fundamental rights or principles such as non-discrimination and human dignity (pisarello 2009: 162). in short, pisarello concludes that social rights: 1) are already justiciable in part, 2) nothing brings into question the separation of powers and the democratic principle, 3) existing mechanisms can be improved through regulatory, interpretive changes and through the design of existing institutions (pisarello 2009: 162). as in the case of ecuador, article 11 of 2009 constitution has recognized rights are justiciable, as well as interdependent and indivisible. in this regard, professor añón roig argues that the consideration of the continuity and axiological structural interdependence of fundamental rights provides a more complex but plausible and fruitful perspective. in that sense, she talks about individual rights with a broad content and as a category comprising several protected legal positions or different relationships which may also have different degrees or levels of protection. so, the subjective right is thus a complex reality, a beam of positions, a set of relationships or rights which has operated a major transformation of the concept of law, which includes 41 “the enforcement refers to the power to request the immediate accomplishment of a fundamental right, while justiciability is understood related to that power, but in the limited scope of a judicial or quasi-judicial process. it can then understand that enforcement is the gender while the justiciability is the species” abramovich (2002: 132-168) “as the authors define more specifically the justiciability as the possibility to complain to the judge or court on the compliance of at least some of the obligations under the law” abramovich (2002:37). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 118 reasons for the construction of a legal theory of social rights as fundamental rights both a more structural, formal and conceptual perspective, and substantial, normative, axiological dimensions, allowing to conceptualize the notion of fundamental rights (añon roig 2010: 26 ff.). on the other hand, the direct enforceability refers to direct invocation of a social, economic or cultural right, so there is no theoretical impediment to consider that these rights are not directly enforceable before the court, either through individual or collective claims (abramovich 2002:132). hence, abramovich and courtis said that every right implies different levels of obligations: to respect, to protect and to fulfill (abramovich 2002:133), with an additional mediate and minimum duty and obligation of progressivity, according to escr committee. from this perspective, there are three examples, including the association benghalensis case, in which the argentine government and the ministry of health were condemned to comply the obligation to provide care, treatment and drug delivery on a regular, timely and continuous way to hiv / aids patients registered in the hospitals of the country. consequently, state’s omission determines the ability to act through the enforcement of the right. also, in the case of the peruvian pension system amendment, the constitutional court file no. 0050-2004-ai / tc, of july 3, 2005, held that the right to pension has a fundamental character, and determined its core content following the principle of proportionality consisting of: a) the right of access to a pension, b) the right not to arbitrarily deprive anyone to pension, c) the right to a minimum living amount. finally, the bogernment of the republic of south africa and other v. grootboom, irene and others case, although the court refused to define a minimum content on the right of access to housing, it decided to incorporate the test of reasonableness to analyze the measures or public policies, considering measures are reasonable if these care about those in need, those in a greater risk or those vulnerable in access to social rights. thus, it seeks to provide citizens and permanent residents access to housing with certain comfort features (abramovich 2002:132-168). as can be seen, all doubts have been answered and the theses regarding social rights as not enforceable rights have been nullified, including f. atria statement according to which “social rights would be mere aspirations, possibilities or idealities, whose satisfaction therefore not enforceable is distorted”. iii) similarly, we do not share ricardo garcía manrique’s thesis, who alleges a substantial reason not to set up social rights as subjective rights because of their lower capacity, i.e., its minimal grade of realization, as they represent unreal states in greater extent than other fundamental rights. also, ricardo garcía manrique considers social rights as unequal distribution assets, subsidiaries and commodified. finally, that social rights have a gradual and cyclical dimension that has performed in a lesser extent than liberal rights, so the subjective right is a limited, non-suitable technique for their protection which leads to the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 119 juan josé janampa almora its restriction, regarded as a minimum social right not only for its alternative character but also by the technique of subjective right. it is mandatory to deny these theses from a moral and ideological view, to the extent they have conceptual and technical deficiencies. arguing that social rights should not be configured as individual rights because of their lack of realization, their gradual dimension or a supposed minimum social right nature, means to ignore social rights problems, not only in legal terms but especially in social, ethical, political and economic spheres. since the social dimension, needs of satisfaction and anthropologically basic needs are present in every society, and the state is responsible for making every effort to protect social rights, for which the constituent has assigned parameters to follow, which must be carried out through appropriate and necessary public policies to guarantee equal access to all citizens. in economic and political levels, all social, civil and political rights have an economic cost, as stated above, and an ideal tax collection is mandatory to adequately redistribute budgetary resources to the enjoyment of liberal rights but also social rights, although the latter involve a higher cost. to the question about how we ensure these social needs, the answer is in the political role and its willingness to protect social rights. while political and ethical pluralism is inherent to every society –often with antagonistic conceptions about certain preferences–, the political scenario must be the main way to defend social rights. thus, one should not blame the technique of subjective rights because of its deficient protection of social rights, as some authors allege regarding social rights protection, but this goes beyond towards a social, economic, political and ethical approach. accordingly, the change of paradigm in which the rule of law is replaced by the constitutional state, the rights have underlined their individual rights status reflected in several constitutional procedures to safeguard them against any involvement. also, its scope and importance have been expanded to the extend they have been set as a limit and justification of the actions of any authority, including the legislature. in this sense, fundamental rights have been understood as provisions with an open and indeterminate content, supervised by the formula of the core content42 and subjective rights have earned the necessary ductility. with great consistency robert alexy proposed that fundamental rights cease to be rule-norms, to become principle-norms (alexy 2007: 67), understood as mandates of optimization, according to the factual and legal 42 “this formula makes clear that the essential content of fundamental rights is not a measure to be inferred “itself” and regardless of the set of the constitution and the legal assets recognized by such rights and essential content of a fundamental right and permissible limits are a unity” häberle (2003a: 59). the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 120 reasons for the construction of a legal theory of social rights as fundamental rights possibilities, and with the principle of proportionality as the great definer of the minimum content of social rights. consequently, fundamental rights count as subjective rights, including social rights. on the other hand, the justiciability of social rights has carried out an intense control of state obligations regarding social rights, juridifying different conditions which are essential to develop an adequate and reasonable policy to fulfill the basic needs. thus, judicial review becomes involved with the “structural failures” that are preventing the enjoyment of rights on a collective level. similarly, it engages with substantive or axiological issues contained in public policy, highlighting certain diminished prospects on the extent of the rights established by political bodies, but always within the framework of regulatory obligations contained in international agreements, constitutions and laws. this type of judicial review does not determine completely the content of public policy to comply with social rights. the adoption of “specific measures” falls within the edge of the political bodies to whom the judgment forwards “modes” to overcome the deficits found in politics and low levels of enjoyment of rights. iv. conclusions the alleged difference between the categories of rights (civil and political rights and social rights) carried out by a sector of legal literature is surrounded by a liberal ideological mantle, which has the purpose to support a dissimilar protection of social rights, based on a high indeterminacy, its costly character and the refusal to be considered as subjective rights. this situation conditions the projection of the legal theory of social rights as fundamental rights on both the constitutionalization of certain ethically justifiable demands and social rights (in its subjective and objective functions) as limits to power and effective irradiation in the legal system. in relation to the delivery character of social rights, it has been argued by a certain sector of the legal literature that it is very easy to identify social rights only as benefits rights, those rights that instead of being satisfied by an abstention of the obligated person, require a positive action usually translated in the provision of some good or service. this understanding, which encompasses only one of the main dimensions of social rights, has also contributed to the alleged difference between the categories of rights (civil and political rights and social rights). the supposed difference in the categories of rights based on the historical factor also leads to the same conclusion: the consolidation and deep penetration of this factor in the legal theory of social rights has led to propose a disparity between civil and political rights and social rights, confirming that such a difference has an ideological and a historical source. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 121 juan josé janampa almora however, the basis of the alleged difference is very weak, since both social and civil and political rights have a similar normative structure from a deontic point of view, i.e. all fundamental rights (civil, political and social ones) are characterized by their double dimension; a facet of benefit and one of abstention. in other words, they are rights with a character in positive and negative senses. thus, the only difference, if one can be assigned, would be fixed by the gradual character of the rights; a difference depending on the greater weight assigned to either the defense obligations or the delivery obligations, or some rights require more funding than others, since all fundamental rights are costly and dependent on the economic capacity of the state. the same is true on indeterminate character, since all fundamental rights have an open texture, some will be more indeterminate than others depending on their fundamentality, importance or their vagueness. in this sense, both civil and political rights and social rights are indeterminate. all rights have a prima facie character and are not definitive rights, therefore, the subjective nature of social rights will also be flexible according to each legal reality, whose performance expectations will be configured in a different way, which does not mean that its subjective character is denied. it is pertinent to deny the thesis that social rights should not be defined as subjective rights due to their lack of realization or the gradual dimension they have, or because of a supposed minimum social right nature, a criterion of a certain sector of the literature with serious conceptual and technical deficiencies, since accepting this idea would be ignoring the legal, political, ethical, and economic problem that characterizes the rights. these affirmations mentioned in favor of social rights lead us to revert the reductionist theses of exclusively liberal and reductionist roots, which seek solely the configuration of social rights as program norms, end-norms or realistic/objective mandates, which ultimately would result in the denial of the fundamental right character. in this way, our hypothesis has been demonstrated and tested, giving account of the defense of a legal theory of social rights as fundamental rights. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 122 reasons for the construction of a legal theory of social rights as fundamental rights references abramovich, víctor and courtis, christian. (2002), los derechos sociales como derechos exigibles, editorial trotta, madrid. ansuátegui roig, francisco javier, (2010), argumentos para una teoría de los derechos sociales, revista derecho del estado, nº24. ansuátegui roig, francisco javier. (2013a), los derechos fundamentales en principia iuris (o los límites de la teoría del derecho), anuario de filosofía del derecho, n°29. ansuátegui roig, francisco javier. (2013b), razón y voluntad en el estado de derecho: un enfoque filosófico-jurídico, dykinson, madrid. alterio, ana micaela. (2014), corrientes del constitucionalismo contemporáneo a debate, problema, anuario de filosofía y teoría del derecho, no. 8. añon roig, maría josé. (2010), derechos sociales: cuestiones de legalidad y legitimidad, en revista panorama de filosofía jurídica y política, 50 años de anales de la catedra francisco suárez. añon roig, maría josé. 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(1999), el concepto de derecho subjetivo, fontamara, mexico. cossio, j.r.. (1989), estado social y derechos de prestación, centro de estudios constitucionales. madrid. cascajo castro, josé luis. (1989), la tutela constitucional de los derechos sociales, editorial centro de estudios constitucionales. madrid. cruz villalón, pedro. (1989), formación y evolución de los derechos fundamentales, revista española de derecho constitucional, january-april, no. 25. carrillo, marc. (1999) la eficacia de los derechos sociales: entre la constitución y la ley, jpld, no. 36. de asis roig, rafael. (2009), un apunte sobre la interpretación de los derechos sociales, carlos iii of madrid university– instituto de derechos humanos bartolomé de las casas, “human rights age” program (huri-age) series 2. ferrajoli, luigi. 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(2009), los derechos económicos-sociales y el principio de igualdad en la teoría de los derechos de robert alexy, in ricardo garcía manrique (editor), derechos sociales y ponderación, 2nd edition, editorial fundación coloquio jurídico europeo, madrid. holmes, stephen and sunstein, cass r. (2012), el costo de los derechos. stella mastrangelo (translator), siglo xxi editores, buenos aires – argentina. janampa almora, juan josé. (2016), sobre el concepto y fundamento en el actual estado constitucional. un análisis en la teoría de los derechos sociales. in alfonso myers gallardo, juan josé janampa almora and others (compilers), democracia, constitución y derechos humanos. elementos fundamentales para el estado de derecho, ratio legis, salamanca, spain. kelsen, hans. (2005), teoría pura del derecho, editorial porrúa, mexico. león florián, felipe johan. (2013), la eficacia de los derechos sociales entre particulares. fundamento y posibilidades, master thesis, pontifica universidad católica del perú. peces-barba martinez, gregorio. (2004), lecciones de derechos fundamentales, madrid, dykinson. pisarello, gerardo. (2009), la justiciabilidad de los derechos sociales: realidad y desafíos, revista sociedad y utopía, n° 34 – november 2009, madrid. pisarello, gerardo. (2007), los derechos sociales y sus garantías. elementos para una reconstrucción, trota, madrid. prieto sanchis, luis. (1995), los derechos sociales y el principio de igualdad. revista del centro de estudios constitucionales, n° 22 (september-december) madrid. zagrebelsky, gustavo. (2003), el derecho dúctil: ley, derechos y justicia. marina gascón abellán (translator), 5th edition, trotta, madrid. the age of human rights journal, 8 (june 2017) pp. 92-125 issn: 2340-9592 doi: 10.17561/tahrj.n8.5 125 iii.1. social rights are highly indeterminate (these are not fundamental rights) iii.2. social rights are expensive and dependent on the economic capacity of the state (social rights are not fundamental rights) the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 49 the freedom of information law and democratization in nigeria akeem ayofe akinwale1 abstract: nigeria is rife with marginalisation and human rights abuses, which have been aggravated by inequitable distribution of national wealth. this situation calls for viable institutional arrangements for the protection of fundamental human rights. the press has been empowered in this regard but nigeria remains rife with a plethora of human rights abuses. the present paper therefore examines the freedom of information law and democratization in nigeria. the paper is conceptualised within the ambit of mills’ theory of sociological imagination. data used for the paper were derived from relevant documents and key informant interviews. a total of 64 journalists were purposively selected from 16 print and electronic press organisations in lagos and oyo states of nigeria. findings show that the press has been empowered through the freedom of information bill, which was signed into law after a decade of its presentation to the nigerian government. most of the informants mentioned that the freedom of information law would stimulate democratization, although they expressed doubts about its efficacy. also, two-third of the informants expressed dissatisfaction over continuity of press freedom abuse in nigeria. the results of this paper suggest the need for national consciousness to ensure protection of press freedom and human rights in the nigerian democracy. keywords: democratization, foil, human rights abuses, marginalisation, press freedom. contents: i. introduction; ii. theoretical framework on the issues of human rights in nigeria; iii. methods of data collection; iv. the question of freedom and fundamental human rights in nigeria; v. the arrival of the freedom of information law in nigeria; vi. the rationale for freedom of information law; vii. provisions of the freedom of information law in nigeria; viii. problems with press freedom in nigeria; ix. linkages between freedom of information law and human rights in nigeria; x. linkages between freedom of information law and democratization in nigeria; xi. lessons for nigeria from the japanese m iracle; xii. conclusion. i. introduction the ability to ensure protection of human rights is essential for democratization of a country. contrary to expectations, the political and socio-economic situations in nigeria clearly show a plethora of human rights abuses. to address this situation, president olusegun obasanjo established the human rights violation investigation commission (hrvic) in 1999, a period of the beginning of the current phase of democratization in nigeria. the objectives set for the hrvic were reproduced by aina (2010: p. 57) as follows: 1 faculty of business administration, university of lagos, akoka, lagos state, nigeria. the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 50 “to restore the confidence of citizens in the nation’s government, and to contribute to national healing of festering wounds covering the period between january 1966 and may 1999. […] accordingly, hrvic decided from the outset to see its task principally as “using the instrumentality of the law to effect social change in the country”. the above mentioned objectives are yet to be actualised despite the fact that the hrvic submitted its report and recommendations to the federal government of nigeria since may 2002. the hrvic provided ample opportunities for victims of human rights abuses to tell their stories during its public hearings in four major cities across nigeria (aina 2010). the continued neglect of the recommendations of the hrvic suggests that the universal principles of democracy including protection of human freedom and social justice are illusory in nigeria. consequently, a number of nigerians have become restless in their quest for social justice. unfortunately, nigeria is yet to ensure social justice, as the over fifty years of its attainment of political independence from britain typify human rights abuses owing to several factors including dictatorship, corruption, and social exclusion. the historical failure of successive governments to meet the expectations of the majority of nigerians has led to renewal of demands for social justice and recognition of inevitability of freedom of the press since 1999. this paper thus dwells on the following questions: did successive democratic regimes in nigeria ensure adequate protection of fundamental human rights? would the freedom of information law stimulate democratization of nigeria? is the freedom of information law sufficient to ensure protection of press freedom and fundamental human rights in nigeria? the aforementioned questions are addressed through mixed methods of data collection, particularly key informant in-depth interviews and relevant documents. the public clamours for democratization have reached unprecedented levels in nigeria. in the light of such clamours, instances of improvement have been recorded in some areas of the operation of the nigerian democracy. this is evidenced by the emerging credibility of the electoral system and presidential assent to the freedom of information law (foil). the emergence of the foil in nigeria indicates an improvement in institutional arrangements for the entrenchment of democracy. the foil provides a basis for an understanding of the framework of press freedom in nigeria; it indicates an attempt to replace the culture of secrecy that prevails within the nigerian civil service with a culture of openness. research has shown that the ultimate goal of the foil is to promote accountability and transparency in government (adams 2010). with statutory right of access to public information embodied in the foil, governments can be made more accountable to the people. scholars acknowledged that dissemination of information is a principal function of the press and protection of freedom of expression is required for such function (adams 2010; aturu 2010; callamard 2010; haugaard 2010). the foil is expected to akeem ayofe akinwale the age of human rights journal, 1 (2013) 51 protect freedom of the press and rights of the individual in a true democracy. various governments and international organisations have recognised the centrality of freedom of expression to democratization. the african commission on human and people's rights emphasized the importance of press freedom to human rights and good governance at its 32nd ordinary session held in banjul, gambia in october 2002. press freedom is also enshrined in the declaration on democracy by the new partnership for africa's development (nepad) and the african peer review mechanism (aprm). also, article 10 of the european court of human rights (echr) explicitly stipulates the freedom to receive information held by public authorities. nigeria has finally endorsed the foil, thereby becoming one of the countries with legislation on citizens’ right to information. those countries include sweden, the united states, finland, the netherlands, australia, canada, south africa, liberia, india, israel, jamaica, japan, mexico, pakistan, peru, south korea, thailand, trinidad and tobago, the united kingdom, and most countries in east and central europe. in fact, callamard (2010) reported that over 90 countries had enacted the right to information. it is important to note that the nigeria’s contemporary legislation on freedom of information introduces the need for a departure from the historical experience of social exclusion among nigerians. like most african societies, nigeria evolved through historical periods dominated by dictatorial kings, emirs and chiefs followed by equally dictatorial colonial rulers and military regimes. of concern now is nigeria’s history of democratization with allegations of corruption and human rights abuses. for instance, successive nigerian governments restricted public access to records and information through various laws such as the official secrets act (osa), the public service rules (psr), the criminal code act (cca) and national archive act (naa) (abioye 2010). the extant history of restriction of public access to information in nigeria provides evidence for aina’s (2010) observation that the state has been the major perpetrator of gross violations of human rights. the present paper therefore analyses the freedom of information law and its linkages to press freedom and democratization in nigeria, using mills’ (1959) theory of sociological imagination. ii. theoretical framework on the issues of human rights in nigeria issues addressed in the present paper are situated within the framework of the theory of sociological imagination propounded by wright mills (1959). the ideal of press freedom is expected to affect democratization. the emergence of the freedom of information law (foil) in nigeria can also affect the operations of press freedom, depending on its efficacy or inefficacy. the aforementioned issues can be explained in the light of socio-political history of contentions among individuals and groups in the nigerian society. thus, mills’ (1959) theory of sociological imagination is adapted to explain the foil and its linkages to press freedom and democratization in nigeria. the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 52 mills (1916-1962) was recognised as a radical theorist in american sociology and his masterpiece on “the power elite”, which appeared in 1956, showed “how america was dominated by a small group of businessmen, politicians, and military leaders” (ritzer 1996: p. 209). the theory of sociological imagination developed from mills’ interest in marxism and the problem of the third world. recognition of powerlessness of individuals and groups in their struggle for social justice within the ambit of the law is a key issue in the theory of sociological imagination as indicated below: “it is not only information that they need –in this age of fact, information often dominates their attention and overwhelms their capacities to assimilate it. it is not only the skills of reason that they need –although their struggles to acquire these often exhaust their limited moral energy. what they need, and what they feel they need, is a quality of mind that will help them to use information and to develop reason in order to achieve lucid summations of what is going on in the world and of what may be happening within themselves. it is this quality, i am going to contend, that journalists and scholars, artists and publics, scientists and educators are coming to expect of what may be called the sociological imagination. [...] the sociological imagination enables its possessor to understand the larger historical scene in terms of its meaning for the inner life and the external career of a variety of individuals (mills 1959: p. 11)”. the theory of sociological imagination provides a suitable framework for an analysis of the social context of press freedom and democratization in nigeria. the theory explains how people’s psychology is formed from their daily experience and false consciousness of their positions in society. people’s involvement in public issues is also discussed in the theory and this also justifies its suitability for the discourse on foil linkages to press freedom and democratization in nigeria. mills’ (1959) call for sociological imagination has gained recognition among scholars. mehan (2008) reported his engagement with the theory of sociological imagination in the development of research and public sociology. for o’brien (2009), sociological imagination provides an opportunity for critical engagement with the complexity of social life and in this way deepens an analysis of a public issue. the theory of sociological imagination fits an analysis of human freedom or lack of it depending on intersections between individual biography and history of society. the struggle for social justice has become an integral part of the history of nigeria; this observation can be substantiated from various perspectives shown in the theory of sociological imagination: “for that imagination is the capacity to shift from one perspective to another – from the political to the psychological [...] from the theological school to the military establishment [...] perhaps the most fruitful distinction with which the sociological imagination works is akeem ayofe akinwale the age of human rights journal, 1 (2013) 53 between ‘the personal troubles of milieu’ and ‘the public issues of social structure’ (mills 1959: pp. 13-14)”. the theory of sociological imagination was derived from multiple perspectives; it specifically focuses on the need for a quality of mind that is suited for adequate knowledge of social realities pertaining to personal troubles and public issues in a society. the persistence of human rights abuses in nigeria fits the description of public issues in the theory of sociological imagination. expectedly, it has been demonstrated that solution to public issue requires reform of social institutions of society. the foil can be perceived as a stepping stone to the reform of the nigerian democracy, hence the need to address the foil linkages to press freedom and democratization due to its recognition as a cornerstone of good governance. iii. methods of data collection methods of data collection for the present paper are based on qualitative primary and secondary data. the qualitative primary data were derived from key informant interviews conducted among 64 journalists from 16 press organisations including print and electronic media in lagos and oyo states of nigeria. the 64 journalists were purposively selected based on their work schedule, competence, gender, and availability. four journalists were selected from each of the print and electronic media organisations in lagos and ibadan areas of nigeria. appointments were booked via telephone conversation and the interviews were conducted at the discretion of the journalists after several visits to their workplaces. rapports with a number of journalists made organisational entry and interview with several journalists in their workplaces easy and fruitful. each interview session lasted for an average of 60 minutes and the time of the interview differed from one journalist to another due to their work schedule and time constraints. also, the secondary data used for the present paper were generated from peer reviewed articles and official documents. both the primary and secondary data were subjected to thematic content analysis for a robust interpretation of problems with press freedom and democratization in nigeria. issues addressed in the present paper are necessitated by a triumph in the struggle for press freedom on the one hand and continued demands for social justice in nigeria on the other hand. iv. the question of freedom and fundamental human rights in nigeria the concept of freedom has become widely used and misused among individuals and groups in nigeria. while some concerns for freedom are expressed in private spheres, other interests in it are publicly expressed. the movement for press freedom in nigeria lies in the latter and such movement is theoretically geared towards protection of fundamental human rights. in his remarks on a decade of democratization in nigeria, jega (2010: p. 9) mentioned the relevance and restrictions of freedom thus: the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 54 “human freedom could no longer be taken for granted. those who have, at one time or the other, lost their freedom or have been in bondage would better appreciate the indispensable character of freedom. [...] as desirable as freedom is, it has to be regulated. the doctrine of the separation of power was designed to enhance human freedom by regulating relationships between the different departments of government –the legislature, the executive and the judiciary (jega 2010: p. 9)”. the power to ensure human freedom extends beyond the abovementioned institutions of governance. in a liberal democratic ideology, it is believed that power belongs to the people, usually the electorates, and this premise justifies the quest for press freedom through which individual’s right to self-expression can be recognised. the majority of nigerians can express their satisfaction or dissatisfaction about a number of issues, particularly a wide gap between the elites and the general public. in his observation of this situation, olurode (2010: p. 25) speculated that: “in the next decade, democratic resources will be deployed to avert the phenomenon of rising social discontent which is being fuelled by unjustifiable remuneration of political office holders.” the freedom of the press cannot be ignored in this context. in his observation of the relevance of the press to socio-political history of nigeria, mättig (2010: p. 12) submitted that: “nigeria’s vibrant culture, its outspoken intellectuals, brave labour unions, civil society and media activists have given rise to hopes about a different nigeria and a better africa [...] newspapers and numerous publications decry corruption and bad leadership, and articulate the desire for a better state”. the above submission implies that the nigerian society would improve under a regime that tolerates individual’s right to self-expression and by extension freedom of the press. unfortunately, successive nigerian governments have not lived up to expectations in this regard. even with its loud acclamation for the rule of law, the regime of late president yar’ adua was alleged of closure and harassment of the press in his attempt to avert public access to vital information about his ill health (oyebode 2010). lack of public access to vital information can endanger democratization of society via corruption. aturu (2010) cited several examples of how a tiny proportion of the nigerian population has continued to benefit from the opaqueness and corruption that lack of public access to information engenders. he argued that how only a few derive maximum benefits from the abundant resources of the state would remain unknown without freedom of information. aturu’s (2010) call for a fundamental change in the nigerian society through the full exercise of the civil and political rights such as press freedom, a key promise of liberal democracy, is in consonance with the theory of sociological imagination. many reasons and justifications proffered for the hostility of the ruling elite to the freedom of information bill can be recalled. the main argument akeem ayofe akinwale the age of human rights journal, 1 (2013) 55 against the bill was that granting public access to information would jeopardise national security. in contrast, restriction of public access to information constitutes human rights abuse. consistent with rixin’s (2010) observation of marginalisation of the masses in the distribution of national wealth, the nigerian greedy politicians and their cronies opposed the freedom of information bill for over a decade, while socio-economic conditions of the majority of nigerians have continued to deteriorate. a major outcome of this eventuality is expansion of the gap between the rich and the poor. the rate of wealth accumulation of the minority and the rate of mass unemployment have reached astronomical proportions in nigeria. likewise, the gains of privatisation have been concentrated in the hands of the privileged nigerians, whereas the underprivileged nigerians continue to wallow in abject poverty. thus, adequate protection of the freedom of the press is urgently required to empower the nigerian public towards participation in formulation and implementation of public policies. the exclusion of the majority of nigerians from governance is however compounded by inadequate protection of press freedom and this has contributed to the rise of human rights abuses in nigeria, pointing to the need for citizens’ participation in governance (machado 2011). adequate freedom of the press can guarantee people’s involvement in government and such freedom can stimulate democratization of nigeria. a number of controversies raised on the question of press freedom have been addressed in the passage of the freedom of information bill (foib), which has become the freedom of information law (foil). v. the arrival of the freedom of information law in nigeria the freedom of information bill has been passed into law in nigeria, although contentions about the bill lasted for over ten years (1999–2011). this situation was adduced to proliferation of dictatorial regimes and lack of transparency in government (adedayo and agbaje 2010; tiamiyu and aina 2008). the bill was presented to the nigerian legislature in 1999 and it was approved by the legislature after several years of debates on it. however, president olusegun obasanjo dismissed it and the bill was returned to the legislature for fresh debates on it (akinwale 2010). finally, the foib was signed into law in february 2011, thereby becoming the foil and it received assent of president goodluck jonathan on 28th may 2011. the issue of press freedom is no longer controversial with the arrival of the foil in nigeria. prior to the arrival of the foil, several sections of the nigerian constitutions stipulate press freedom in nigeria. section 24 (1) of the nigerian 1960 constitution states that every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference (akinola 1998). also, sections 22 and 39 of the nigerian 1999 constitution provide for individual’s right to self-expression and freedom of the press. section 39 of the constitution stipulates that every person shall be entitled to freedom of expression, the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 56 including freedom to hold opinions and to receive and impart ideas and information without interference. the section further shows that every person shall be entitled to establish and operate any medium for the dissemination of information, ideas and opinions. as disclosed by aturu (2010), section 22 of the nigerian 1999 constitution fortifies the power of the press. he also mentioned that section 39 of the nigerian 1999 constitution is sufficient for the press to carry out its assumed traditional functions of informing, educating and entertaining the public. however, the proviso to subsection two states that persons other than the state cannot operate a television or wireless broadcasting station for any purpose without the permission of the president upon fulfilment of conditions stipulated in an act of the national assembly. the need for specific legislation on freedom of information has been widely recognised. in recognition of this fact, adams (2010) mentioned several instances of constitutional provisions for the freedom of expression in many african countries including botswana, cameroon, kenya, lesotho, sierra leone, zambia, mozambique, tanzania and uganda. the emergence of the foil in nigeria is expected to promote democratization, which requires adequate protection of press freedom and fundamental human rights. of significance here is rijn’s (2009) observation that the changing relationship between citizens and their governments require devolution of power to lower levels of governance. the observed requirements for good governance include ability to bring power back to the citizens, provision of security, prevention of corruption and compliance to the law. reliable police and efficient judiciary are also required. vi. the rationale for freedom of information law several countries have enacted foil to grant the members of the public the right of access to information or official documents held by the state. sweden’s freedom of press act of 1766 is the oldest information law in the world; the foil became widespread in the 1960s (katuu 2008). the united states of america (usa) foi act was signed into law on 4th july 1966 by president lyndon johnson. in canada, the foi was enacted in 1982 and titled “access to information act”. south africa established its foil in 2000. the foil is promulgated to ensure social accountability in the political system of a country (adams 2006). extending adam’s views, callamard (2010: p. 1232) submitted that: “access to information held by public authorities enables citizens to make informed choices and allows them to scrutinize the actions of their government. it is essential to creating a relationship of trust between state bodies and the general public, allowing for transparency and public participation in decision making”. akeem ayofe akinwale the age of human rights journal, 1 (2013) 57 the above mentioned submissions show the relevance of adequate protection of press freedom for social accountability. a free and vibrant press is required for social accountability given the necessity of investigating freely without fear and the need to promote citizens’ adequate participation in governance. the foil is also aimed at promoting democratization. mason (2008) mentioned that free access to information preserves democratic ideas, while earlier observation by millar (2003) showed that it is a significant paradigm shift from secrecy and concealment to openness and transparency. in the same line of argument, blanton (2002) expressed that the need to engender openness in reaction to endemic corruption and graft often seems to be a fundamental consideration in the foil. vii. provisions of the freedom of information law in nigeria unlike the hitherto existing laws in nigeria, section 30 (2) of the foil stipulates that nothing contained in the criminal code or the official secrets act shall prejudicially affect any public officer who, without authorisation, discloses to any person, any public record and/or information which he reasonably believes to show – (a) a violation of any law, rule or regulation; (b) mismanagement, gross waste of funds, and abuse of authority; or (c) a substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this act. also, section 30 (3) stipulates that no civil or criminal proceedings shall lie against any person receiving the information or further disclosing it. the abovementioned provisions suggest that the foil can promote public access to vital information. a previous study by abioye (2010) showed that the doctrine of openness has been enabled in the foil. however, the foil also makes provisions for exemptions from public access to vital information. this implies that the nigerian public may not have access to all official information due to the state interest in the protection of official information in order to ensure privacy and defence in the conduct of national and foreign affairs. under the nigerian foil, exemptions from public access to information are contained in various sections. while section 11(2) stipulates public access to information, section 11(3) prohibits public access to information if such access would unreasonably interfere with operations of the government or constitute an infringement on copyright. with the above exemptions, the nigerian state officials can curtail public access to vital information depending on their interpretations of the information. abioye (2010) has justified the exemptions from public access to vital information, showing that it is impracticable for any government to allow access to all kinds of information in its custody without some interests being jeopardised. viii. problems with press freedom in nigeria analysis of both primary and secondary data clearly shows lack of absolute freedom in nigeria. threats to the ideal of press freedom can be perceived in this context. a key threat in this regard arises from several factors such as undue interests of the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 58 the elites, corruption, institutional resistance, and disregard for the court of public opinions. the above factors are responsible for lack of social justice, which would have been promoted through press freedom (shiller 2010; vlasic & noell 2010). controversies in the quest for press freedom in nigeria featured prominently in the narratives of 64 key informants among nigerian journalists working in print and electronic media in lagos and oyo states of south-western nigeria. lack of absolute freedom of the nigerian press was however lamented. it was mentioned that press freedom has been affected by undue interests of the elites within socio-political circles. some informants disclosed that press freedom would only make sense in nigeria if individual’s rights are protected and if journalists are allowed to practice their profession without undue interference. most of the informants believed that partisanship could prevent journalists from adhering to the principles of their profession. added to this is the need for prevention of partisanship in the operations of the press in nigeria. thus, problems with press freedom oscillate within the interplay of the political environment, judicial interest and elite capture of the press in nigeria. elite capture of the press portends dangers to the majority of nigerians as it creates multiple voices that produce different versions of various class interests. the concerns of the majority are usually ignored or given inadequate attention in this process. in the words of tettey (2008), the economic imperatives behind the operations of many press organisations tend to trump their public service role. this situation introduces dilemma in the recognition of contributions of the press towards the development of the nigerian democracy. according to akinwale (2010: pp. 55-56): “a major concern in the social construction of the press communication system is the elite capture of the press. the elites may deploy press organisations as tools for ventilating parochial political interests rather than as public arena for robust democratic expressions. [...] striking a balance between competing concerns (public right to know and the necessity of political stability or national security) is a major challenge to press organisations in nigeria”. previous research by adedayo and agbaje (2010) corroborated the above submission. their research showed evidence of elite capture and partisanship among press organisations, including the fact that the early cases of militant activities of members of the odua people congress (opc) were underreported in most of the press in the south-western nigeria, while reports on such cases were exaggerated in most of the press in northern nigeria. other instances of manipulation of the nigerian press are summarised in table 1, which shows divergent views on the credibility of professor maurice iwu, regarding allegations of his connivance in a great deal of electoral malpractices in the 2007 general elections in nigeria. akeem ayofe akinwale the age of human rights journal, 1 (2013) 59 table 1: dissenting reports on erstwhile chairman of inec /n the press date of the report headlines of the report the sun 2nd february 2009 i can’t be sacked – iwu the punch 25th february 2009 sack iwu now, nlc tells yar’ adua the champion 27th february 2009 2007 elections: nigerians should thank iwu the champion 18th march 2009 leave iwu alone the national life 22nd march 2009 the vote of confidence on maurice iwu the reports in table 1 show dissenting opinions about the erstwhile chair of the independent national electoral commission (inec) of nigeria. this suggests opportunities and challenges in public access to vital information via the operations of the press freedom. the opportunities may include availability of different perspectives on a given issue. on the other hand, the challenges may include escalation of conflict among different groups. the press can prevent the challenges through ethical conducts based on objectivity and impartiality. as observed by adedayo and agabaje (2010), the expected ethical conducts of the press have been tainted by interests of the proprietors of press organisations. similarly, yagboyaju (2010) observed that state-owned media organizations have been used to consistently harass parliamentarians, thereby creating a scenario in which subjectivity of critical editorials diminished the robustness of intra-governmental relations. the above observations negate the principles of integrity and objectivity of the press. another contradiction of ethical conducts in the operations of freedom of the press was briefly described by olurode (2010: p. 21): “of course, it is clear that the press itself is an interested party, rather than being an umpire. most often than not, the press is implicated as it becomes a platform for the expressions and mediations of wider political conflict”. the above description can be buttressed through a presentation of several cases of conflicts between prominent politicians in south-western nigeria, as shown in table 2. the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 60 table 2: reports on tussles among political leaders in south-western nigeria /n the press date of the report headlines of the report the national life 22nd november 2008 ogun dirty war! shocking reasons ogd battles obj, daughter the national life 14th december 2008 insult! ogd annuls mko abiola’s monument the national life 14th february 2009 distraught ex-aide releases toxic sms alleging ogd’s killer squad the national life 15th february 2009 london secret deal! how ogd lured me back home – wale adedayo the compass 19th february 2009 tinubu’s drug group tried to kill american agent the compass 20th february 2009 how tinubu plans to rule ekiti from lagos the compass 21st february 2009 siphoning lagos funds: alpha beta directors in criminal action the compass 22nd february 2009 ex-gov backstabs atiku, ac, others the table 2 displays reported cases of mutual hostility between two erstwhile governors, bola ahmed tinubu of lagos state and olugbenga daniel of ogun state. such reports may mislead the public that the press is expected to inform, thereby showing a scenario in which people rely on wrong information to make decisions. the press freedom and its implications for conflicts and civil strives in nigeria cannot be ignored in the light of the above situation. practically, one-third of the participants in the interviews decried abuse of the concept of press freedom in nigeria and this was traced to disharmony coupled with the heterogeneous nature of the nigerian society. ix. linkages between freedom of information law and human rights in nigeria most of the participants expressed their support for the foil but were wary of likely hindrances to its efficacy in nigeria. twelve informants argued for inevitability of human rights abuses in nigeria and this was attributed to contradictions inherent in nigeria’s social structure. instances of journalists’ exposure to vulnerability and dilemma in the exercise of their responsibilities were stressed as unavoidable instances of human rights abuses. the foregoing narratives are resonant with the theory of sociological imagination, showing concerns for public issues and crises inherent in them, as described below: “when people cherish some set of values and do not feel any threat to them, they experience wellbeing. when they cherish values but do feel them to be threatened, they experience a crisis. [...] but suppose people akeem ayofe akinwale the age of human rights journal, 1 (2013) 61 are neither aware of any cherished values nor experience any threat? that is the experience of indifference, which if it seems to involve all their values become apathy (mills 1959: pp. 17-18)”. the abovementioned aspect of sociological imagination implies that nigerians are threatened in one way or another. the journalists who expressed their concerns about inevitability of human rights abuses in nigeria noted that the elites usually put the public at a disadvantage. focusing on the influence of the elites, nwabueze (1997) noted that the nigerian constitutions were crafted and imposed on the general public by colonial masters, military oligarchy and their civilian counterparts. regarding the sufficiency or insufficiency of the foil for adequate protection of press freedom in nigeria, one third of the informants mentioned continuity of factors that negate the ideal of press freedom in nigeria; these include the following: censorship, ownership structure, political hostility to the press, and repression of the press. concerns over these factors led to recognition of lack of true press freedom in nigeria. they mentioned that lack of true press freedom remained their major concern since it limits a number of contributions the press could have made towards development of the nigerian society. an informant uncovered the dilemma of the press in a brief statement: ‘the state threatens press organisations, the police harass members of the press and the public does not appreciate the role of the press’. the state was blamed for this eventuality in a recent remark by callamard (2010: p. 1228): “often licensing of private broadcasters remains politically controlled even in the context of liberalization of broadcasting and the slow pace of change away from state monopoly of broadcasting. often such powers are used to stifle press freedom whenever incumbents think that the media paints them in bad light”. lack of political will on the part of african leaders is largely responsible for the absence of clear progress in the pursuit of the ideal of press freedom. the rhetoric of transparency in the foil in nigeria and other african countries has not been accompanied by the required actions. the above finding resonates with aina’s (2010) observation that the state is a major perpetrator of human rights abuses in africa. x. linkages between freedom of information law and democratization in nigeria three out of every five informants recognised direct links between the foil and democratization. also, two-third of the informants observed that the foil would further promote the nigerian democracy through protection of fundamental human rights. this reflects ukaegbu’s (2007) focus on the need to protect nigerians from the deplorable state of the nigerian society. a few participants mentioned that with the foil, human rights would be protected since press organisations would have access to right information. the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 62 it can be argued that the emergence of the freedom of information law (foil) in nigeria signalled a triumph of the press, thereby ending the regimes of restrictions on access to official information. prior to the enactment of the foil in nigeria, a great deal of information in the nigerian public service were classified and protected by various laws such as the official secrets act (osa), the public service rules (psr) and the criminal code act (cca). the osa was originally promulgated in 1962 to restrict access to official information and later turned to cap 335, laws of the federation of nigeria in 1990 and cap 03, laws of the federation of nigeria in 2004, respectively. in furtherance to official interest in the restriction on access to information, the psr was renewed in 2006. as stipulated in section nine of the osa, classified information must not be disclosed to the public for the sake of national security (abioye 2010). prior to the emergence of the foil, the aides of president yar’ adua and his vice were sworn to the oath of secrecy to prevent disclosures of confidential information to unauthorised persons or organisations (chedozie 2008). with the instrumentality of the osa, cca and psr, almost all the information in the nigerian public service was classified and the public was then denied access to vital information about governance. section one of the osa states that a person who transmits or obtains any classified information shall be guilty of an offence defined as a serious act of misconduct and is criminally liable to dismissal and imprisonment for at least one year. similarly, the cca makes provisions relating to disclosure of official secrets in nigeria, as section 97 of the act stipulates that any officer who divulges classified information to an unauthorised person or organisation is guilty of a misdemeanour and liable to imprisonment for two years. furthermore, access to public archives in the national archives in nigeria was regulated by the provisions of the national archives act. the act stipulates that public archives relating to the private life of individuals shall not be made available for the inspection of members of the public except with the written permission of the persons concerned or their heirs or executors, if known to the director of national archives (abioye 2010). consequently, the provisions of the official secrets act, public service rules and the criminal code law have become a vestige of history. abioye (2010) expected that the passage of the foi bill would be the first step in a tortuous journey towards ensuring that both the government and the governed in society accept and facilitate the effective implementation of the foil. radical reform and partnership among various sectors of the nigerian society is required to ensure correct implementation of the foil. the need for recognition of people’s people power is critical for the success of democratization in nigeria. easterly (2010) demonstrated that the historical escape from poverty actually happened from below when societies allowed freedom for the individual. the experience of venezuelans has contributed to an understanding of the relevance of people’s involvement in governance. machado (2011) realized the need to resolve the akeem ayofe akinwale the age of human rights journal, 1 (2013) 63 growing social tensions in venezuela through engagement with the public. in this process, an organization promoted by five engineers became an organization with more than 50,000 volunteers across venezuela in less than a year of its existence. experience in venezuela shows the fundamentality of people’s participation in government and their demands for results in how budgets are prepared for the implementation of public needs. xi. lessons for nigeria from the japanese miracle nigeria needs a radical shift from political economy of underdevelopment to realistic reforms in which the individual’s rights would be protected. experience in japan and elsewhere has shown the relevance of protecting people’s interests in formulation and implementation of public policies. several instances of success among the japanese were presented by kustenbauder (2010), indicating the possibility of a radical break from undesirable situations to enviable positions. an illustration of japan’s success without access to the marshal plan in the aftermath of the second world war is instructive for nigeria. it is believed that recognition of collective spirit of resilience and industriousness contributed to the japanese miracle, following barbarism of their premodern era and wartime devastation of their modern era. kustenbauder (2010) reported that the japanese society was governed and reformed by a warrior class of samurai under the direction of powerful shogun generals during the tokugawa period (16031868). the legacy of the japanese aristocracy was consolidated by the meiji government, popularly called the meiji restoration due to its focus on nation building through an overnight replacement of the japanese feudal structures with a network of modern institutions such as industries and educational systems that regulated daily activities of the nation’s citizens. significantly, the unequal treaties ended with japan’s success in its first modern war with china (1894-1895) and the annexation of taiwan as a colony. their 1905 victory over tsarist russia surprised the world and gave a boost to japanese nationalism by proving that it could defeat a western empire. japan had finally joined the ranks of imperial nations and achieved “great power” status. xii. conclusion the present paper dwelt on a number of issues affecting press freedom and democratization in nigeria. the issues discussed in the present paper include inevitability of human rights abuses, exemptions from public access to vital information, inadequate protection of press freedom, corruption, and lack of social justice. the above mentioned issues have continued to endanger democratization of nigeria. in this context, the emergence of the freedom of information law (foil) in nigeria was discussed in the light of its linkages to the issues of press freedom and fundamental human rights. its implications for democratization of the nigerian society were equally examined. the freedom of information law and democratization in nigeria the age of human rights journal, 1 (2013) 64 while the foil clearly promotes the doctrine of openness and public access to vital information, it equally restricts public access to vital information depending on the interpretations of such information by state officials. like the previous legislation on classified official information, the foil prohibits public access to vital information in order to ensure protection of national security. this fact reinforces existing diversity between state interest and interest of the nigerian public. this situation can extend the problems affecting press freedom and democratization in nigeria. the majority of the journalists, who provided firsthand information for the present paper, affirmed the inadequacy of press freedom in nigeria. this situation is based on contradictions between policy and practice in nigeria as well as manipulation of the nigerian press by elites. the expectation that the foil would ensure adequate protection of press freedom and fundamental human rights will become an illusion except the nigerian state is able to ensure collective compliance with the principles of transparency, accountability and probity in democratization of nigeria. without the above principles, it will be difficult to eradicate human rights abuses in nigeria where the political elites are yet to support popular calls for social justice. a more radical approach is urgently needed to sustain democratization of nigeria. 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(2010) intra-governmental relations. in: l. olurode (ed.) reflections on a decade of democratization in nigeria (193-216). abuja: friedrich-ebert stiftung. the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law1 patricia cuenca gómez2 maría del carmen barranco avilés3 maria laura serra4 javier ansuátegui roig5 pablo rodríguez del pozo6 abstract: article 12 of the convention on the rights of persons with disabilities provides that persons with disabilities are entitled to full legal capacity on an equal basis with others and obliges state parties to provide access to the support that they may require exercising this legal capacity. this paper analyzes the main implications of this article and its impact on qatar´s legal system, focusing on the general regulation of legal capacity and provisions in the domain of private law, including family law. we examine how qatar´s legislation needs to be adapted to the new paradigm of the crpd, overcoming preconceptions based on the medical model and assistencialism, which is focused on protection, and moving towards the social model and the human rights approach, aimed at promoting the autonomy of persons with disabilities. to comply with article 12, qatar must review the legal provisions that allow the deprivation or restriction of legal capacity on the basis of disability and that require “be[ing] of sound of mind” as a condition to perform legal acts or to exercise rights. qatar must also take action to replace regimes of substituted decision-making with supported decision-making – extending some support mechanisms available in current legislation – and to ensure the respect of the person’s will and preferences. keywords: disability, legal capacity, private law, qatar, convention on the rights of persons with disabilities. summary: 1. introduction 2. article 12 of the convention on the rights of persons with disabilities 3. the approach to legal capacity in qatar’s legal system 3.1. general framework on legal capacity in qatar 3.2. legal capacity to enter into a contract and to exercise civil rights 3.3. legal capacity in family law 4. certain necessary changes 1 this publication was made possible by the nprp award nprp-7-380-5-051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors. 2 universidad carlos iii de madrid, spain (patricia.cuenca@uc3m.es). 3 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 4 universidad carlos iii de madrid, spain (marialaura.serra@nuigalway.ie). 5 universidad carlos iii de madrid, spain (javofil@der-pu.uc3m.es). 6 weill cornell medical college in qatar (prd2002@qatar-med.cornell.edu). the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 81 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo 1. introduction under the heading “equal recognition before the law,” article 12 of the convention on the rights of persons with disabilities (hereinafter, crpd) lays down a set of provisions that constitute a true revolution, challenging the traditional approach to legal capacity of persons with disabilities in domestic legal systems (minkowitz, 20062007: 405-408 and quinn, 2011). article 12’s revolutionary nature lies in the fact that it recognizes that all persons with disabilities should enjoy full legal capacity and have the right to exercise it on an equal basis with others. consequently, it advocates moving from a model of substituted decision-making to a model of supported decision-making. the purpose of this paper is to examine qatar’s legislation on legal capacity in the light of the requirements set out by article 12 of the crpd, as well as to point out certain changes that may be necessary to adequately implement this provision. given the broad scope of this subject, our study will focus on the general framework applicable in qatar, as well as on its implications for the regulation governing certain legal acts and specific rights in the private law domain. 2. article 12 of the convention on the rights of persons with disabilities the wording of article 12 became one of the most controversial issues during the process of drafting the crpd, and this provision was almost passed with a footnote, which following complex negotiations was finally removed.7 in any event, its removal did not prevent the fact that during the ratification and signing of the crpd many reservations were expressed and interpretative declarations made about article 12. according to certain experts, such reservations and declarations shall be null and void, since they are contrary to the purpose of the crpd (international disability alliance, 2008). the debate on the meaning and implications of article 12 was not actually finalized. therefore, the committee on the rights of persons with disabilities (hereinafter, the crpd committee) devoted its first general comment (2014) to clarifying the meaning of the right to equal recognition before the law8. in the opinion of the crpd committee, the initial reports of the states parties examined up to that point evidenced “a general misunderstanding of the exact scope of the obligations” under this article, as well as a “general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.”9 7 on the debate about article 12, see palacios, 2008: 454–467 and dhanda, 2006-2007: 438–456. 8 on this general comment see arnstein-kerslale and flynn, 2016. 9 de bhailís and flynn, 2017, aim to summarise the current understanding and literature around article 12 of the crpd. the volume 12, issue 1 of the international journal of law in context, where this work was published, included a special issue on legal capacity and human rights. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 82 https://www.cambridge.org/core/product/6a75f5f323a38a15846aaa53fa29a3f2 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law below we will try to briefly examine the key elements of article 12 and the innovations introduced thereby, moving away from the long-standing regulation of legal capacity. in any case, before going through its main aspects, it must be noted that this provision ultimately entails a paradigm shift in the philosophical approach to legal capacity (quinn, 2010; cuenca, 2011 and cuenca, 2012a). historically speaking, legal capacity, and disability in general, has been tackled from an understanding rooted in the medical model and the perspective of assistencialism. as is generally known, the core principle of the medical model is to consider disability as a “problem” affecting a person, stemming from the individual deficiencies caused by a given impairment. persons with disabilities are thus deemed as individuals that deviate from an allegedly standard pattern of behavior, and according to this approach the restrictions they suffer regarding their involvement in society are due to their deficiencies. from this standpoint, the approach to disability focuses on “standardizing,” healing, or rehabilitating disabled persons in order to integrate them within society as well as on assisting individuals who are unable to achieve such integration (palacios, 2008a; oliver, 1996; and barnes and mercer, 2003). from this point of view, it can be considered that cognitive deficits shown by certain persons with disabilities—mainly (although not only) persons with mental or psychosocial disabilities—prevent them from making their own decisions “correctly,” i.e. autonomously, independently, freely, and responsibly. the foregoing implies, as a natural and essential consequence meant to ensure the protection of persons with disabilities who have difficulty in making decisions, that their legal capacity must be removed or restricted and that they must be replaced by a third person to make such decisions on their behalf and “in their best interests.” furthermore, departing from the traditional approach, legal capacity is dealt with as a technical issue from a private law perspective related to intervention in legal transactions (quinn, 2009 and bariffi, 2009). its regulation also seeks to ensure the security of legal transactions and focuses on economic aspects. in any case, in many legal systems the legal incapacitation and/or the consideration that a person lacks the “standard” mental capacity does not only affect the economic sphere, but also the individual, social, and political domains, preventing persons with disabilities from exercising their fundamental rights. therefore, deprivation of legal capacity means the civil death of persons with cognitive disabilities (quinn, 2016). the crpd moves away from medical model to social model of disability. as opposed to the medical model, the social model is characterized by transferring the “problem” of disability from the individual to society as a whole. from this perspective, it is not individual limitations that give rise to disabilities, but rather the limitations of a society designed on the basis of a normalcy standard that leads to barriers excluding and discriminating against persons with disabilities (palacios, 2008a). thus, the approach to disability currently revolves around society’s adaptation instead of around the individuals’ rehabilitation. this view takes disability to the discrimination domain, and thus to the sphere of human rights. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 83 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo regarding legal capacity, the social model departs from the premise that difficulties experienced by disabled persons regarding decision-making processes are not exclusively rooted in their personal deficiencies. in fact, it argues that they can stem from, and be worsened by, the design of the environment (including intellectual, communicational, or behavioral aspects). these axes allow us to conclude that legal capacity is not deemed as something natural, but as a social construct that has traditionally justified exclusion from the law (and from the human rights) of various groups, and which must be reconsidered in order to include persons with disabilities (dhanda, 2003-2004 and quinn, 2016). hence, the regulation of legal capacity as set forth in the crpd focuses on removing barriers and adapting its exercise to the situation and needs of persons with disabilities (cuenca, 2011: 237 y 238). it is central to this line of argument to ensure universal accessibility within the domains where legal capacity may be exercised10 through universal design,11 the adoption of accessibility measures,12 and the implementation of any reasonable accommodation that may be required,13 as well as to provide any support needed by persons with disabilities to enable them to make their own decisions. in line with the adoption of the social model regarding the approach to legal capacity, the crpd contends that assistencialism approach and the private law perspective must be replaced by the human rights-based approach. this shift has two closely-related implications. 10 universal accessibility is governed by article 9 of the crpd, which provides the following: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” the ties between this provision and article 12 have been highlighted by the crpd committee (2014: para. 37) which points out that the “[l]ack of accessibility to information and communication and inaccessible services may constitute barriers to the realization of legal capacity for some persons with disabilities, in practice,” on universal accessibility and the various strategies to implement it, see de asís, 2013. 11 from our perspective, universal design amounts to a general strategy adopted ab initio, initially foreseeing a legal interest, product, or service to achieve universal accessibility. article 2 of the crpd defines the notion of “universal design” as “the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.” 12 in our opinion, accessibility measures are also a general strategy meant to redesign all goods or services that initially were not universally accessible. 13 reasonable accommodation amounts to a specific strategy aimed at accomplishing universal accessibility. this notion is defined in article 2 of the crpd as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” its connection with article 12 is also underlined by the crpd committee: “non-discrimination includes the right to reasonable accommodation in the exercise of legal capacity. states parties are required to make any necessary modifications or adjustments to allow persons with disabilities to exercise their legal capacity, unless it is a disproportionate or undue burden,” (crpd committee, 2014, para. 34). the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 84 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law the first is that the legal capacity of persons with disabilities must be primarily tackled from the perspective of those values, principles, and core objectives of the human rights discourse (cuenca, 2012b: 71ff.). thus, as the principle of protection had such a prominent role in the traditional system, the value of autonomy becomes particularly important within this new model, i.e. it is key that all persons, including persons with disabilities, be entitled to freely choose their goals, to take the most appropriate steps for the accomplishment thereof, and to make their own mistakes14. secondly, according to the crpd, being granted legal capacity is not only a condition to validly perform legal transactions, but is vital to ensure the exercise of all human rights.15 in this regard, article 12 becomes the core of the general paradigm shift fostered by the crpd regarding the approach to disability: persons with disabilities should be viewed as subjects, as full and active human-rights holders, and not as objects of protection, assistance, and care (quinn, 2009b: 105). within this framework, the first paragraph of article 12 “reaffirms” that persons with disabilities “have the right to recognition everywhere as persons before the law.” according to the opinion of the crpd committee, this provision guarantees that a person with disability is respected “as a person possessing legal personality, which is a prerequisite for the recognition of person’s legal capacity.” (crpd committee, 2014: para. 11). this paragraph may require the review of certain domestic legislation to identify discrimination on the basis of disability; particularly with regards to the effect of the acknowledgement of legal personality (nationality, name, inheritance, documents of identity etc.). thus, any law or practice that denies persons with disabilities the right to be registered at birth, the right to assume their nationality, the right to inheritance, or the right to obtain an identity document, should be considered contrary to paragraph 1 of article 12. in any case, article 12.1 does not protect against the deprivation of legal capacity of persons with disabilities (bach, 2012: 60). paragraph 2 of article 12 provides that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” concerning this provision, it must be clarified that, along the lines of the observations of the crpd committee, (2014) “legal capacity includes the capacity to be both a holder of rights and an actor 14 on the adaptation of the human rights-based approach to achieve inclusion of persons with disabilities, see cuenca, 2015. 15 in this regard, the crpd committee (2014: paras 8 and 31) remarks that “legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights” and notes that its recognition is inextricably linked “to the enjoyment of many other human rights provided for in the crpd including, but not limited to, the right to access justice (art. 13); the right to be free from involuntary detention in a mental health facility and not to be forced to undergo mental health treatment (art. 14); the right to respect for one’s physical and mental integrity (art. 17); the right to liberty of movement and nationality (art. 18); the right to choose where and with whom to live (art. 19); the right to freedom of expression (art. 21); the right to consent to medical treatment (art. 25); and the right to vote and stand for election (art. 29). without recognition of the person as a person before the law, the ability to assert, exercise and enforce those rights, and many other rights provided for in the convention, is significantly compromised”. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 85 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo under the law” (thus including both capacity for rights and capacity to act).16 secondly, from the wording of this provision (which provides for no distinctions whatsoever), it can be inferred that article 12(2) establishes the “universal legal capacity” paradigm for all persons with disabilities with no exclusions on the basis of the kind or degree of disability.17 this stems from the need to provide access to the support that persons with disabilities may require, as laid down in article 12(3), as well as from the open-ended definition of disability enshrined in article 1 of the crpd.18 thirdly, it must be recalled that, according to article 12.2, legal capacity cannot be questioned on the grounds of disability. it is discrimination on the basis of disability, which is expressly forbidden by article 5 of the crpd (crpd committee, 2014: para. 32)19. in order to understand the scope of this prohibition it is crucial the distinction between legal capacity and mental capacity. as the crpd committee affirms legal capacity – both strands legal standing and legal agency “is an inherent right accorded to all people, including persons with disabilities”, whereas mental capacity refers to the decision-making skills of a person, “which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors”. under article 12 of the convention, “perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity” (crpd committee, 2014: paras. 13 and 14) 20 in this vein, as stated by the crpd committee (2014, para. 15), granting legal capacity “on an equal basis” excludes the “status approach” that considers that the person’s disability or the existence of a given impairment (including physical, sensory, mental, or intellectual impairments) are valid grounds for denying legal capacity. additionally, this equal recognition of legal capacity also excludes the “outcome 16 one of the most significant debates in the negotiations regarding article 12 of the crpd, which almost led to article 12 being passed with a footnote, was actually about the meaning and scope of the notion of “legal capacity.” the drafted footnote stated the following: “in arabic, chinese and russian, the term ‘legal capacity’ refers to ‘legal capacity for rights,’ not the ‘legal capacity to act.’” in any event, in addition to the general comment of the crpd committee, the report issued by the office of the high commissioner for human rights submitted to the special committee in their sixth meeting entitled “legal capacity”, 2005 can also support this claim. 17 as highlighted by the crpd committee, “the right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others,” (crpd committee, 2014; para. 8). 18 according to article 1 of the crpd, “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” 19 article 2 establishes that for the purposes of the crpd “discrimination on the basis of disability” means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. it includes all forms of discrimination, including denial of reasonable accommodation.” 20 article 2 establishes that for the purposes of the crpd “discrimination on the basis of disability” means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. it includes all forms of discrimination, including denial of reasonable accommodation.” the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 86 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law approach,” which takes into consideration the consequences of the decisions made by persons with disabilities, and it will come into play when such decisions were deemed either contrary to their own interests or socially unacceptable. finally, article 12 also excludes the “functional approach,” based on the individual assessment of a person’s mental capacity to make a given decision or enforce a specific right.21 as underlined by the crpd committee, “in all of those approaches, a person’s disability and/or decisionmaking skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. article 12 does not permit such discriminatory denial of legal capacity” (crpd committee, 2014: para. 15). furthermore, article 12(2) requires the abrogation of any legal actions that could be applied to prevent the exercise of legal capacity such as interdictions or incapacitations, and any assessments of mental abilities or legal notions such as “unsoundness of mind,” that are exclusively applied to persons with disabilities (crpd committee, 2014: para. 13 and 15). this guarantee of equality in the exercise of legal capacity obviously obliges governments to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” as stated in article 12(3). as flynn and arstein-kerslake argue (2014: 81-85) article 12 of the crpd “identifies that an individual has a right to legal capacity irrespective of whether or not they have a disability, and simultaneously recognizes that some people require assistance to exercise their legal capacity”. accordingly, as mentioned above, article 12 provides for replacing substituted decision-making regimes with supported decision-making alternatives.22 as clarified by the crpd committee, a total replacement must take place, inasmuch as “the development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the convention.” (crpd committee, 2014: para. 28). according to article 12(4), the support systems in the exercise of legal capacity must incorporate “appropriate and effective safeguards to prevent abuse in accordance with international human rights law.” although such safeguards must be implemented in the adoption of the support system on a national level, the convention points out several specifics that need to be assured (palacios, 2008 b) notably the need for these support measures to respect the rights, will, and preferences of the person; the need for them to be free of conflicts of interest and undue influence; the need for them to be proportional and tailored to the person’s circumstances; and the need for them to be 21 an analysis of these three approaches can be seen in dhanda, 2006-2007. a source of criticism of the outcome approach, preventing persons with disabilities from making their own mistakes can be seen in quinn, 2010. the committee underlines that article 12 discards the functional approach, inasmuch as certain sectors claim that it would be the approach adopted by the crpd. considering article 12 as a post-functionalist instrument can be seen in quinn, 2016. 22 according to the crpd committee, 2014, para. 16 “states parties must refrain from denying persons with disabilities their legal capacity and must, rather, provide persons with disabilities access to the support necessary to enable them to make decisions that have legal effect”. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 87 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo subject to regular review by a competent, independent, and impartial authority or judicial body. the crpd committee (2014, para. 20) considers that the primary purpose of these safeguards must be to ensure the respect of the person’s rights, will and preferences. in the opinion of the crpd committee (2014: para. 21) according to article 12, the “will and preferences” paradigm must replace the “best interests” paradigm to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others. this entails that “where, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual” support measures must focus on abiding by the “best interpretation of will and preferences”. the crpd does not design the specific form adopted by the support model. within the framework of the obligations and safeguards set out in article 12, each state is free to design its support system taking into account its legal culture and social structure. in any event, in general comment no. 1, the crpd committee, mentions that support may be either formal or informal and stresses the importance of acknowledging its diversity (crpd committee, 2014: para. 17 and 18). the general comment also refers to “certain key provisions” that must be included in the support system (crpd committee, 2014: para. 29). amongst these “key provisions,” the following can be highlighted: supported decision-making “must be available to all;” all forms of support in the exercise of legal capacity, including the most intense support measures, “must be based on the will and preferences of the person, not on what is perceived as being in his or her objective best interest;” these forms of support “must be available and accessible and states have an obligation to facilitate the creation of support;” financial resources must not be a barrier to accessing support to enable the exercise of legal capacity,” and support in decision-making must not be used as grounds for limiting other fundamental rights of persons with disabilities23. finally, as pointed out above, article 12(5) mentions the obligation to ensure that persons with disabilities have access to a series of economic domains: to own or inherit property; to control their own financial affairs; to have equal access to bank loans, mortgages, and other forms of financial credit from which they have been traditionally excluded; and to ensure that persons with disabilities are not arbitrarily deprived of their property. according to the crpd committee, the traditional approach “of denying persons with disabilities legal capacity for financial matters must be replaced with support to exercise legal capacity, in accordance with article 12, paragraph 3” (crpd committee, 2014: para. 23). 3. the approach to legal capacity in qatar’s legal system qatar is an independent sovereign arab state with a legal system based on a mixture of civil law and shari’a law. shari’a law is also recognized in the qatari constitution, (article 1) adopted on june 8, 2004 as the principal source of legislation. 23 on the model of support in decision making see inclusion europe, 2008 and inclusion internacional 2014. in the academic field see, for example, gooding, 2013; flynn and arstein-kerslake, 2014b or booth glen, 2015. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 88 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law a modernization strategy, adopted by general secretariat for development planning, qatar national vision 2030, is aimed at renewing and developing the country, thereby reinforcing its commitment towards human rights. therefore, qatar’s presence in the international system of human rights protection is relatively recent and the state is still awaiting the ratification of very relevant instruments.24 in any event, as part of its reform strategy, qatar ratified the crpd in 2008.25 by virtue of this ratification, the crpd became part of national law in qatar. article 6 of the constitution of the state of qatar provides that the state shall respect all international charters and conventions to which it is party and strive to implement them all. qatar completed its initial review process before the crpd committee in september 2015 with the adoption of the concluding observations on the initial report of qatar26 (crpd committee, 2015). as noted by the crpd committee, in spite of relative advancements, qatar still views disability from the perspective of assistencialism and the medical model, far from the human rights-based approach and the social model advanced by the crpd.27 this perspective, enshrined in qatar’s legal system as a whole, and particularly in law (act) no. 2 of 2004 on people with special needs,28 certainly inspires the regulation of legal capacity. as explained above arab countries, among others, promoted, during the negotiation of the crpd, the introduction of a footnote to article 12.2 limiting the meaning of legal capacity in arabic, to “capacity of rights,” rather than “capacity to act.” this proposal was an attempt to make substantive changes to the content of article 12, disguised as a linguistic issue and it was deleted by the eight ad hoc committee. as happens in other countries, qatari regulation on legal capacity pervades its entire legal system, thus inhibiting the general performance of legal transactions and acts and the exercise of many rights for persons with intellectual and psychosocial disabilities. since this paper cannot assess all qatari legal provisions related to legal capacity, this study will focus on analyzing the general framework regarding the recognition of legal capacity and its implications in the specific domain of private law. 24 such as the international human rights covenants of 1966. the working group on the universal periodic review shows the intention to ratify these particular covenants in its report. 25 however, qatar did not ratify the optional protocol of the crpd regarding the individual complaints procedure and inquiry procedure. 26 all documents pertaining to this process are available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/sessionslist.aspx?treaty=crpd (last accessed january 10, 2017). 27 see a general analysis on the challenges faced by qatar in the implementation of the crpd in de asís barranco; cuenca; rodríguez del pozo and al ali k., 2017. 28 in this law, persons with disabilities are defined, from a medical model perspective, as “any person with a permanent total or partial disability in any of the senses or in his or her physical ability or in his or her psychological or mental ability to such an extent that his or her opportunity to learn or to undergo rehabilitation or to earn a living” (article 1). the perspective of specialty, according to the medical model, is also present in other definitions, such as “special education,” “rehabilitation,” and “special education institutes.” the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 89 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/sessionslist.aspx?treaty=crpd p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo as evidenced below, the general features of qatar’s legislation on legal capacity are in line with legislation in other countries that still have not implemented article 12 of the crpd. in any event, the distinct feature in qatar that should be taken into account is the influence of shari’a law in some civil provisions in this field. 3.1. general framework on legal capacity in qatar in qatar, legal personality is considered a universal trait, attributed to all human beings in its civil code, and there are no restrictions or gradations on the basis of disability.29 the initial report submitted by qatar before the crpd committee (2010: para. 138, 139 and 140) states that every disabled child “is registered at birth and given a name and nationality,”30 and it asserts that these rights shall not be denied or restricted on grounds of disability.31 regarding inheritance, article 43 of the code of family law32 similarly does not make any distinction on the basis of disability. therefore, qatari legislation is generally in line with the requirements set out by article 12(1) of the crpd. however, qatari legislation is rooted in the substitution model with regards to legal capacity. the civil code (article 49)33 determines that the recognition of full legal capacity depends upon the individual being of full legal age, reached at the age of 18, and on “mental competence.” in this regard, those who are not considered mentally competent may be incapacitated. it can be inferred from certain provisions34 that incapacitation in qatar can be either total or partial, which may be an advantage vis-àvis those legal systems that only provide for total incapacitation. as laid down in article 52 of the civil code and in article 190 of the code of family law “persons of no or defective capacity” shall be governed by the provisions of natural or legal guardianship or curatorship as provided for by special laws. the special legal provision governing this matter is law (act) no. 40 of 2004 on the guardianship over minors’ funds. article 33 of the said act is worded as follows: “no person above the age of majority who is subject to a habitual state of madness or insanity, or is unconscious, mentally deranged or an imbecile … shall be allowed to take charge of his own affairs or to administer his estate.” this law considers “incapacitated” to mean an incompetent minor or an insane, unconscious, or idiotic 29 law (act) no. 22 of 2004 promulgating the civil code. as pointed out in article 39 of the civil code “the personality of a human being shall commence upon being born alive and shall cease upon death.” 30 law (act) no. 5 of 1982 on births and deaths registration regulation and law (act) no. (38) of 2005 on the acquisition of qatari nationality. 31 as explained in qatar’s initial report, the department of nationality and travel documentation allocates a personal (national) number to every newborn child, regardless of whether the child has a disability or not. persons with disabilities are exempted from paying fees for the issuance and replacement of a qatari passport and a qatari identity card (crpd committee, 2010: para. 141). 32 law (act) no. 22 of 2006 on family law. 33 this provision states that “any person who attains the age of majority and is in possession of his mental faculties shall have full legal capacity to perform legal acts, unless guardianship or custody of his property is decided to be continued or unless such person is incapacitated.” 34 articles 49 and 52 of the civil code. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 90 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law person. in its general provisions, the act defines the meaning of “the insane,”35 “the unconscious,”36 “the idiotic,”37 and “the imbecile”38 and identifies them as persons with psychosocial or intellectual impairments. accordingly, in qatari legislation, certain impairments are deemed to constitute a lack of the necessary mental capacity required before full legal capacity can be acknowledged. additionally, pejorative and stigmatizing terms and definitions are used to refer to persons with disabilities that may be deprived of legal capacity. hence, in accordance with the analysis carried out in the previous section, these provisions are discriminatory and breach articles 12(2) and 5 of the crpd. in qatar, persons who are incapacitated are subject to a special system of guardianship (curation or qawama) pursuant to which a third person is appointed to manage the incapacitated person’s property and affairs. regarding persons who exercise this guardianship, article 32 of the law on the guardianship over minors’ funds provides that the qawama “shall be accorded to the major son, then to the father, then to the authority.” furthermore, article 40 of this law states that any provisions regulating the legal guardianship of a minor shall apply on curation, and the curator shall be bound by such provisions. therefore, the legislative framework regarding legal capacity of persons with disabilities in qatar is based on the adoption of substituted decision-making, and it equates persons with disabilities to minors, which does not comply with the requirements laid down by the crpd. within qatar’s legal system, the process of incapacitation rests with a judicial authority, which amounts to a guarantee in comparison with other domestic legal systems where an administrative decision suffices. article 33 of the law on the guardianship over minors’ funds clearly asserts that “no interdiction shall be lifted without a court order.” furthermore, article 118 of the qatari civil code states that “the courts shall interdict a person suffering from insanity, imbecility, inattentiveness or prodigality, in accordance with the rules and procedures prescribed by law.” however, qatar does not seem to have sufficiently detailed regulation specifically governing the incapacitation procedure. in this regard, the rules and regulations in place simply provide that the judge shall verify the person’s condition—i.e. that he/she is in a habitual state of madness or insanity, or that he/she is unconscious, mentally deranged, or an imbecile—“by oral testimony of knowledgeable people or other legitimate means of proof.”39 35 the “insane” means any person who is extremely or intermittently foolish, demented, unwise, irrational, or mentally ill. 36 the “unconscious” means any person who has no awareness because of illness or old age. 37 the “idiotic” means any person who is mentally deranged, muddled, or perverted. 38 the “imbecile” means any person who shows mental feebleness or incapacity. 39 article 33, law on the guardianship over minors’ funds. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 91 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo as in other domestic legal systems, the regulation of incapacitation and the guardianship system in qatar focuses on property and economic and financial aspects, disregarding personal aspects and the enforcement of fundamental rights, despite the fact that incapacitation in qatar (as well as in other national legal systems) also has an impact on these spheres. regarding safeguards, qatari legislation does not include references to any obligation to hear the affected person or to take his or her will or preferences into account during the incapacitation procedure; it does not provide any such safeguards either in the choice of the curator or in the application of the system of guardianship. additionally, it does not provide for any commitment to periodically review the declarations of incapacity nor is there any specific procedure aimed at fostering reintegration or the recovery of the person’s legal capacity. in any event, and of further concern, is that in qatar legal capacity is a prerequisite to becoming a party in judicial proceedings40 so incapacitated persons cannot claim the recovery of their legal capacity for themselves. nonetheless, in qatar there are competent authorities to monitor the performance of incapacitated persons’ guardians as well as to prevent potential abuses. the general authority for minors’ affairs is a government organization that aims to protect the financial rights of minors and individuals with partial or total legal incapacity by safeguarding and investing their money to ensure their well-being. in this vein, this authority is vested with powers to act as the guardian of any incapacitated person who does not have an appointed curator and to monitor curators’ activities to ensure that they comply with applicable law. in line with the general framework of incapacitation in qatar, the duties performed by these authorities mainly focus on economic concerns. curators, as legal guardians of minors, must submit annual accounts and related documents to the said authority for auditing purposes, as well as to the judge for endorsement purposes.41 the public prosecutor is also empowered to “investigate, revoke, restrict, halt, or reject custodianship applications, as well as applications for the confirmation and appointment of guardians […] and other matters relating to incapacitated or incompetent persons.”42 moreover, pursuant to the provisions governing minors’ guardianship, the performance of duties of particular economic significance by the curator requires prior judicial authorization, which must be granted following the relevant opinion of the authority for minors’ affairs.43 in addition, there are certain measures in place aimed at preventing potential conflicts of interest.44 40 law 13/1990 civil and commercial procedure law. 41 article 23(5) of the law on the guardianship over minors’ funds. 42 article 7 of the law no. 10 of 2002 on the public prosecution. 43 hence, as provided by article 9 of the law on the guardianship over minors’ funds, the natural guardian of a minor, and thus also the curator of an incapacitated person, “may not carry out the following acts without the permission of the court: “1. disposing of the minor’s real estate. 2. lending or the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 92 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law under the abovementioned qatari legal provisions, curators substitute incapacitated persons when executing many legal transactions, as well as when exercising various rights (including fundamental rights). in this sense, the crpd committee expressed its concern “about substituted decision-making and guardianship regimes for persons with disabilities” enshrined in several laws “which restrict the exercise of rights, including the right to vote, to marry, to have a family, to give and/or withdraw free and informed consent, to access justice and choose where and with whom to live” (crpd committee, 2015: para. 23). however, although the general rule in the qatari legal system is replacement in decision-making processes, there are certain mechanisms that allow some incapacitated persons to manage their assets under certain conditions. qatar’s initial report submitted to the crpd committee (2010: para 93) states that some persons “under guardianship may take over the management of all or some of their assets, with the permission of a judge, and after the authority has been consulted.” in this case the provisions on minors who are authorized to handle their own affairs are applicable. such provisions entail the applicability of the “best interest” standard of protection. according to article 34 of the law (act) on the guardianship over minors’ funds, which is mentioned in this point in the report, this provision applies to the “interdicted imbecile” (as well as to prodigal persons).45 the qatari civil code also considers (see articles 119–125) that persons under interdiction for prodigality or for “inattentiveness” may be legally competent to perform certain acts46 (including the administration of their property, the conclusion of an employment contract, and the disposal of income obtained from such employment). the borrowing the minor’s money. 3. renting the minor’s property for more than one year, or one year after he reaches the age of majority. 4. accepting or refusing donations subject to conditions. 5. mortgaging or donating the minor's property. 6. disposing of the minor’s business or securities. 7. continuing to trade in a business after the minor possession thereof.” 44 along these lines, article 18 of the law on the guardianship over minors’ funds provides that “[a] judge may appoint the authority or other special guardian and define such appointment as follows: 1. where the interests of the minor conflict with the interests of the natural, testamentary or legal guardian, or one of his guardians, or his ascendants, descendants or spouse, or with the interests of another minor whom the guardian represents. 2. where a financial contract concluded between the minor and one of the persons mentioned in the previous paragraph is terminated, revoked or canceled. 3. where the minor receives donations and the donor requires that the guardian may not manage the minor's money 4. where special knowledge is required to manage some of the minors’ businesses. 5. where the natural, testamentary or legal guardian is ineligible to exercise any guardianship rights.” 45 however, it is worth noting that qatar’s initial report does not literally contain this provision, but rather it refers to persons incapacitated on the grounds of “irresponsibility or ineptitude.” 46 accordingly, pursuant to the civil code, contracts concluded by a person placed under interdiction for prodigality or inattentiveness after the registration of the interdiction application shall be governed by the provisions of article 111, which governs the disposal of property by minors possessing discretion, so the contracts shall be valid when wholly to their advantage and void when wholly to their disadvantage. if persons under interdiction for prodigality or for “inattentiveness” are authorized to take possession of their property, they are considered competent to manage and administer such property. they are also considered legally competent to enter into an employment contract and dispose of the income from such employment, again within the same limits applicable to discerning minors. and, if duly authorized by a court of law, the disposal of a wakf (endowment) or the execution of a will shall be valid. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 93 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo limits for the performance of these acts by persons “under interdiction” are the same as those employed in the case of “discerning minors,” and they basically entail, yet again, the protection of their “best interest.”47 insofar as the applicable legislation fails to provide an express definition of the notion of “inattentiveness,” it remains unclear to which incapacitated persons with disabilities, if any, these provisions apply. although the previous provisions do not meet the requirements laid down in article 12(2) of the crpd—since they equate the situation of persons with disabilities under guardianship to the situation of minors and they give priority to the “best interest” standard—they do provide an advantage as a starting point for the implementation of the said provision in comparison with other systems, which do not allow incapacitated persons to make their own decisions in any sphere and by any means. 3.2. legal capacity to enter into a contract and to exercise civil rights qatar’s civil legislation considers legal capacity to be essential before entering into a valid contract. in this regard, article 108 of the civil code provides that the consent to contract shall be valid only if given by a legally competent person, and article 109 clarifies that every person who has not been declared by the law to be of total or partial legal incapacity shall have the legal capacity to conclude a contract.48 as for incapacitated persons, their legal representatives are empowered to enter into an agreement on their behalf. at this point, it is worth noting that qatari legislation provides for a mechanism to assist certain persons with disabilities when concluding a contract. hence, regarding persons with severe physical and sensory disabilities (particularly deaf and dumb, blind and deaf, or blind and dumb) who “cannot understand the contents or surrounding circumstances of a contract, or cannot effectively communicate their will,” article 127 of the civil code provides for the possibility of appointing “a judicial assistant to assist such person as may be necessary in his/her best interests.” after this appointment, any acts performed by the disabled person without such assistance may be rendered invalid (article 128). under certain circumstances when, “due to severe debilitating illness a person cannot conclude a disposal even with judicial assistance, or if the person abstains from doing so,” the relevant court of law may allow the judicial assistant to conclude the agreement unilaterally if failing to do so could undermine the person’s “best interest.” these provisions establish a support mechanism for the exercise of the capacity to enter into a contract that could extend to other domains where assistance in decision47 the notion of “discerning minors” means, in accordance with the law on the guardianship over minors’ funds (article 1): “any person who has attained the age of seven but not the age of majority.” 48 according to article 120, a contract concluded by a person suffering from insanity or dementia after the registration of the interdiction application shall be null and void. if the contract is concluded before the registration of the interdiction application, it shall not be deemed null and void unless the condition of insanity or dementia was a matter of common knowledge at the time the contract was concluded or if the other party had knowledge thereof. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 94 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law making is required, and that could also be applied to persons with intellectual or psychosocial disabilities, thereby replacing the long-standing substitution mechanisms. in any case, this assistance should not focus on the criterion of protecting the individual’s best interest, but on supporting the expression of, or on interpreting the will and preferences of a person, depending on the specific individual circumstances. the civil code also includes certain provisions aimed at protecting incapacitated persons regarding the results of contractual agreements,49 payments that are not legally due,50 debt payments,51 or with regard to the statute of limitations.52 pursuant to article 939 of the civil code, a person without capacity or with deficient capacity may acquire property only through legally-recognized representation. it is worth noting that, as highlighted by the report submitted by qatar to the crpd committee, qatar central bank has drafted a number of rules and criteria to guarantee the smooth delivery of banking and financial services to persons with disabilities on an equal basis with others, taking into account their particular circumstances. these rules basically relate to accessibility issues concerning blind persons and persons with reduced mobility (crpd committee, 2010: para. 99). the report points out that “concerning support available to persons with disabilities in the realm of exercising their legal capacity and managing their financial affairs, as set out in article 12 of the convention, the ministry of social affairs has on several occasions followed up with qatar central bank on the subject of a mechanism for enabling persons with disabilities to manage their own financial affairs,” (crpd committee, 2010: para. 100). however, this mechanism is not specified and whether or not it has been implemented is not addressed. with respect to civil rights, article 50 of the civil code establishes that “no person who lacks discretion by reason of youth or imbecility or insanity shall be competent to exercise his/her civil rights.” therefore, the key means by which a person’s “incompetence” in this domain is determined is not the existence of a legal incapacitation, but rather the “lack of discretion.” once again, considering “imbecility” 49 article 164 states that “where, however, a contract concluded by a person without legal capacity or with deficient capacity is invalid or annulled by reason of such lack of capacity or deficient capacity, such person shall only be liable to refund any profits he/she obtained from the performance of the contract.” general regulation provides that the contracting parties shall be reinstated to the position they were in prior to the conclusion of the contract. where such reinstatement is impossible, damages equivalent to any loss incurred may be awarded. 50 article 222 provides that “[a]ny person who receives payment of any amount not legally due to him/her shall repay such amount. repayment shall not be required where the person making the payment is fully aware that he is not obliged to make such payment, except where such person is incapacitated or has been coerced into making such payment.” 51 according to article 355, payment by an incapacitated person for a given good payable by him/her shall be valid unless the payer suffers any damage due to such payment. 52 article 411 states that “[t]he period of prescription shall not apply where a creditor is prevented from claiming his right, even if such prevention is moral; nor shall it apply to the relationship between the principal and his agent. lack or absence of capacity of the creditor, or a penalty ruled against him, shall be deemed a prevention to claim a right, unless the creditor is legally represented by an agent.” the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 95 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo or “insanity” (designations that are clearly pejorative and stigmatizing as pointed out previously) as decisive factors to determine a “lack of discretion”, and therefore the incompetence of a person to exercise his/her civil rights, entails a discrimination in breach of the crpd. 3.3. legal capacity in family law although in this paper we do not focus specifically on this issue, it must be noted that, as discussed earlier, many family law provisions follow the parameters of shari’a law. therefore, there are certain provisions that might be problematic from the perspective of equality for women, and that therefore will also affect women with disabilities.53 within the family law domain, being of “sound mind,” in some cases alongside other requirements also based on the medical model and sometimes grounded on the disregard model,54 is a common criterion to determine an individual’s capacity to exercise rights and perform legal transactions. once again this standard excludes persons with disabilities. as for marriage, the code of family law requires the “competence” of the intending spouses to consent (article 12),55 and it also requires the “sanity and maturity” of both parties in order for the marriage to be legitimate (article 14). under qatari legislation, marriage between “mentally ill or incompetent persons” shall not be authenticated save under the following conditions: approval of the guardian,56 verification of consent and knowledge of the mental condition by the other party entering into a marriage contract, and verification by a competent medical expert that the illness will not be transmitted to his/her descendants.57 additionally, persons with intellectual or psychosocial disabilities are also subject to restrictions if they wish 53 for instance, appointing a guardian for the bride, considering that only men can act as guardians or witnesses to a marriage, the rights and duties of the intending spouses, the regulation of the abovementioned curation or qawama etc. 54 within this model, persons with disabilities are deemed unnecessary due to various reasons (because they do not help the community in fulfilling its needs, because they are a burden for their families and society as a whole, because they are evil, or because since their lives are so miserable they are not worth living). thus, this approach justifies disregarding persons with disabilities: their removal by means of eugenic practices or dooming them to a fate featured by exclusion and marginalization. see palacios a., el modelo social de discapacidad, pp. 92ff. 55 according to article 12, the following conditions shall be required in order for the marriage contract to be valid: 1. competence of the parties and their being free from legal disabilities. 2. validity of offer and acceptance. 3. the guardian satisfying conditions in accordance with the provisions of this law. 4. the witnesses, as stipulated in this law. 56 as for every marriage, the bride’s guardian must be appointed in accordance with article 12 of the code of family law cited in the previous footnote. this institution applies pursuant to shari’a law. 57 article 15 of the code of family law the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 96 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law to act as guardians or witnesses to marriage, since in both cases qatar’s legal provisions also require that guardian or witness to be of “sound mind.”58 this criterion also applies to divorces, as laid out in article 110 of the code of family law. under this provision, any divorce involving an insane person or a person with an intellectual disability shall have no effect. it is worth noting that article 18 of the code of family law provides for compulsory pre-marital examinations for qataris and non-qataris: parties must submit to the marriage attestator/notary a medical certificate from a competent medical authority specifying that they are free from genetic and other diseases (listed by the national health authority in coordination with the relevant authorities). the marriage attestator/notary shall notify each party of the content of the submitted medical certificate before the signing of the contract, but may not reject the contract’s authentication as a result of the medical examination if the parties so desire.59 in addition, qatari legislation provides for separation on grounds of defect or illness.60 according to article 123, “each of the spouses may request separation on grounds of a defect or chronic illness which makes marital life impossible to continue, and for which there is no cure or for which a cure can be hoped for only after a time period of more than one year, whether such illness is mental or physical and whether contracted before or after the marriage contract.” “be[ing] of sound mind” and “be[ing] free from dangerous contagious or infectious diseases,” (including hiv pursuant to qatar’s legislation) are requirements that must be met in order to be eligible for child custody.61 also, in order to become a minor’s legal guardian one must “be sane.”62 again “be[ing] of sound mind” is required in the proof of parentage by admission.63 this regulation is not only contrary to articles 12 and 5 of the crpd, it also amounts to a violation of article 23. this last provision, which is connected with article 12 of the crpd (as underlined by the crpd committee in its general comment no. 1) grants persons with disabilities the right to “respect for home and the family.” compliance with this right requires states parties to implement effective and appropriate measures to eliminate discrimination against persons with disabilities in all 58 the marriage guardian (article 26) shall be a male (the father, the agnate grandfather, the son, the full brother, paternal half-brother, the full uncle, and then the paternal uncle, respectively) of sound mind and mature, and not in the state of ritual consecration (ihram) for hajj or umrah, and a muslim if the guardianship is for a muslim woman. the witnesses must be two muslim males who must also be of sound mind and mature and competent, having heard the offer and acceptance and having understood that marriage is intended (article 36). 59 in its report, qatar states that this examination is aimed at the early identification of certain diseases, in order to ensure a healthy marriage and minimize risks to which spouses may be exposed after their marriage due to a genetic or serious disease (crpd committee, 2010: para. 161). 60 articles 123–127 of the code of family law. 61 article 167 of the code of family law. 62 article 4 of the law (act) on the guardianship over minors’ funds. 63 article 89 of the code of family law. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 97 http://www.almeezan.qa/lawarticles.aspx?lawtreesectionid=8778&lawid=2558&language=en p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo matters relating “to marriage, family, parenthood and relationships, on an equal basis with others.” in particular, it requires states parties to ensure, among other aspects, the right of all persons with disabilities, who are of marriageable age, to marry and start a family on the basis of free and full consent. finally, states parties are also required to guarantee the rights and responsibilities of persons with disabilities with regards to guardianship, wardship, and trusteeship of children, or other similar institutions related to minors. with respect to article 23, the crpd committee in its concluding observations on the application of the convention in qatar expressed its concern “about discriminatory laws and policies that restrict the rights of persons with disabilities, in particularly [sic] women, in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others” ( crpd committee, 2015: para. 41). regarding the capacity to make a will, article 214 of the code of family law establishes that the testator must be of sound mind, he/she shall be an adult, and must have legal capacity to gift. however, if the testator is under guardianship for prodigality or inadvertence, his will for benevolence may be validated by permission or approval of the court. to assess this provision, we need to ascertain the meaning of “persons under guardianship for inadvertence,” which, yet again, is not defined in the law. similarly, a legatee must have the legal capacity to own property.64 article 209 of the code of family law states that the beneficiaries of a legacy must be legally allowed to donate, hence, in accordance with article 197 of the code of family law, possessing full legal capacity, being an adult, being of sound mind, having free will, not being under guardianship, and not suffering from a terminal illness. as for a person under guardianship, the guardian must accept the will and he/she may not reject it except upon authorization by the judge.65 in spite of the shortcomings of qatari family law in terms of article 12 of the crpd, we can identify some strengths from the perspective of persons with disabilities regarding the expression of consent in the context of marriage, divorce, and wills. regarding marriage, consent must be given in verbal pronouncements, although in case of “inability to speak” the law provides that the intending spouses may “express the understanding of the meanings in writing or any form of acceptable communication.”66 as for divorce, express pronouncement or writing is required but in the case “of inability to pronounce or write,” divorce may take effect by understandable gesture.67 similarly, as for wills, one’s will can be expressed through understandable gestures (if the testator cannot express himself/herself verbally or in writing).68 although these provisions do not address the possibility of providing support or assistance to persons with disabilities to enable them to express their will and preferences in these contexts, they do constitute a good starting point from which these 64 article 215 of the code of family law. 65 article 217 of the code of family law. 66 article 13 of the code of family law. 67 article 107 of the code of family law. 68 article 213 of the code of family law. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 98 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law support measures along with all accessible communication formats, might be included in future. 4. certain necessary changes adapting qatar’s legislation to article 12 of the crpd is one of the biggest challenges posed by the crpd, as happens with almost all states parties69. in order to meet the challenge, several changes have to be implemented. firstly, a general paradigm shift must take place regarding the approach of legislation and public policies to disability issues. the assistencialism perspective and the medical model should be abandoned once and for all, and the rights-based approach and social model should be implemented swiftly and resolutely. this entails, among other things, replacing the law on people with special needs with a new piece of legislation expressly banning discrimination on the grounds of disability, as well as acknowledging and guaranteeing accessibility (including the performance of reasonable accommodation) as a pre-condition for the enforcement of all rights, including the right to exercise one’s legal capacity on an equal basis. this new approach must inspire the review of legal capacity legislation “with a view to repealing regimes of substituted decision-making and replacing them by supported decision-making regimes which uphold the autonomy, will and preferences of persons with disabilities,” as recommended by the crpd committee in its concluding observations about qatar (crpd committee, 2015: para. 24). integral to this replacement must be the requirements set out by the crpd committee in its general comment no. 1, (2014), analyzed in this paper. this is a very significant and far-reaching regulatory change, which not only affects provisions that lay down the general incapacitation regime and the guardianship system. it also requires a review of all specific provisions that exclude legally incapacitated persons with disabilities from the performance of legal transactions and from the exercise of rights (including human rights), as well as an assessment of all provisions that establish prerequisites related to mental capacity or soundness of mind. accordingly, the legal capacity of persons with disabilities must be ensured in all areas of life under equal conditions, and access to any assistance that may be required by these persons to exercise their legal capacity must be guaranteed. self-evidently, these considerations also affect the specific domain of private law, on which we have already focused in this paper. in sum, in this domain, persons with disabilities must be granted legal capacity to enter into a contract and to consent regarding all legal acts, to manage their own economic affairs, to acquire or dispose of property, to exercise their civil rights, to marry, to exercise parental rights and custody and to make a will or to make a donation. the required individualized support mechanisms shall be provided on a case-by-case basis. 69 see some on the major concerns in the implementation of article 12 crpd, gooding, 2015. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 99 p. cuenca gómez, m. c. barranco avilés, m.laura serra, j. ansuátegui roig, p. rodríguez del pozo this profound legal reform would be very difficult to deliver in the short term, as the experience of other countries shows. however, there are some provisions in qatari law that allow incapacitated persons to make their own decisions in some spheres and assisted capacity already exists for some specific cases in domestic legislation, which provides a good starting point for the implementation of article 12. moreover, until legal reform takes place, the assistance model of article 127 of the civil code (which currently is applied to provide support to persons with severe physical and sensory disabilities when concluding a contract) could be extended to all persons with disabilities (including persons with intellectual and psychosocial disabilities) and to all domains (including not only private and family domains but also the performance of acts and the exercise of rights in all the legal spheres) and the “best interest” parameter could be interpreted as relating to respecting the will and preferences of the person with disabilities who needs support in taking decisions. the interpretation of the current regulation in the light of the crpd could be implemented through different mechanisms according to qatar´s legal and institutional framework while government and stakeholders are working on the necessary legislative reform.70 in any case, all these legal changes must be designed and implemented with the participation of persons with disabilities, to the framework of the crpd.71 in order to comply with this obligation, according qatar should promote, strengthen, and empower associations representing the interests of persons with disabilities.72 nevertheless, an appropriate implementation of article 12 of the crpd also requires an urgent social change. in qatar, as in most of the states parties of the crpd, persons with disabilities are perceived by politicians, legal professionals, families, and by society in general as lacking the ability to make their own decisions and exercise their rights on their own.73 so, raising awareness of the key players involved in legal reform and of society as a whole is an essential condition to realize the revolution of 70 the obligation of interpreting all relevant national law in a manner that is consistent with the crdp or other international treaties is implicit in the article 6 of the constitution of qatar, mentioned above, that provides that the state shall respect all international charters and conventions to which it is party and strive to implement them all. 71 see among others article 3 of the crpd, that incorporates as a general principle “full and effective participation” and article 4 of the crpd that includes as a general obligation of the states parties, the close consultation and the active involvement of persons with disabilities, through their representative organizations, “in the development and implementation of legislation and policies to implement the present convention, and in other decision-making processes concerning issues relating to persons with disabilities”. 72 the crpd committee pointed out that in the past there was a lack of consultation with both individuals with disabilities and with independent organizations regarding disability-related policies and the process of implementation of the crpd (crpd committee, 2015: para. 9). the qatari national human rights committee (nhrc, 2015 and 2014) has remarked on the lack of a sufficient number of civil society organizations that are concerned with disability issues and the non-existence of specialized associations for certain types of mental disabilities. 73 the shortcomings in the domain of awareness-raising were remarked upon by the crpd, 2015: para. 17. in particular, the crpd committee, 2015: para. 25 is also concerned that judicial officials are unaware of the rights of persons with disabilities. the age of human rights journal, 9 (december 2017) pp. 81-104 issn: 2340-9592 doi: 10.17561/tahrj.n9.4 100 the impact of article 12 of the convention on the rights of persons with disabilities on qatar´s private law article 12, promoting the autonomy of persons with disabilities and enabling them to be the main architects of 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ii. general justifications of punishment; ii.1. retribution; ii.2. deterrence; ii.3. rehabilitation; ii.4. incapacitation; ii.5. the practice of death penalty in ethiopia; ii.6. history of death penalty in ethiopia; ii.7. abolition movement in ethiopia; iii. compatibility and necessity of death penalty with the purpose of criminal punishment in ethiopia; iii.1. does death penalty deter a criminal?; iii.2. special deterrence; iii.3. general deterrence; iii.4. problems of executing death penalty; iii.5. does the practical implementation of death penalty lead to arbitrariness and discrimination?; iv. conclusion. i. introduction crime may be defined as an act or omission or a state of affairs which contravenes the law and which may be followed by prosecution in the criminal proceedings with the attendant consequence, following conviction, of punishment (michael j. allen 2013:1). every known organized society has, and probably must have, some system by which it punishes those who violate its rules and regulations, especially those who violate the most prohibited rules. therefore punishment means intentionally inflicting pain or other unpleasant consequence on another person as a result of his or her fault. therefore, the rationale of punishment is justified upon the theory that it prevents future crime by punishing the potential offenders and by giving a lesson for the public. 1 asst. professor, dept of heritage conservation, institute of paleo-environment & heritage conservation (iphc), mekelle university, ethiopia (post_moderndiscourse@yahoo.co.in). compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 92 throughout time there has been different mechanisms to punish the wrong, and death penalty became applicable, but recently there has been an emergence of an international movement towards the global abolitions of the death penalty. in europe in the mid-18th century a.d, there was a movement against death penalty intending to abolish it, with theorists like montesquieu, bentham and voltaire who argued that the death penalty is a cruel and inhuman treatment of criminals and is against the innate and inviolable core right of a person which is the right to life. coming to ethiopia, it is an example of a country that retains the death penalty in the criminal law. and it has been practiced for a long period of time without facing any challenge and it has been an accepted form of punishment by the state. but, what is punishment? many scholars define punishment diversely. for instance, hart defines punishment as (thomas mcpherson 1967:1): the 'standard or central case of "punishment" is defined in terms of the five elements: (i) it must involve pain or other consequences normally considered unpleasant. (ii) it must be for an offence against legal rules. (iii) it must be of an actual or supposed offender for his offence. (iv) it must be intentionally administered by human beings other than the offender. (v) it must be imposed and administered by an authority constituted by a legal system against which the offence is committed (thomas mcpherson 1967:21). hart also defines punishment as a measure that involves pain or other consequences normally considered unpleasant and that is intentionally imposed by authority on actual or supposed offender for an offence against legal rules (robert s. summers 1969:4). hobbes define punishment as ‘an evil inflicted by public authority, on him that have done, or omitted that which is judged by the same authority to be a transgression of the law; to the end that the will of men may thereby the better be disposed to obedience’… (dejene girma janka 2012:36). both scholars seem to converge on the purpose of punishment; they both tell us that punishment is an unlikeable measure imposed on a person by an authority for the violation of law. the general goal of punishment is to prevent behavior determined undesirable by the society. ii. general justifications of punishment with regard to the justifications for punishment, different scholars provide different reasons as to why we use punishment. depending on its cultural, moral, and religious suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 93 attitudes different societies have different outlooks as to why criminals must be punished. based on these differences, people have different purposes for punishing criminals. ii.1. retribution this theory relies on that punishment is justified when it is deserved. it looks through the crime and asks what justice requires to the past wrong. it looks towards the original offense and seeks to punish the offender proportionately. this theory, which is the most stringent and harsh of all the other theories, believes to end the crime itself. this type of justification for punishment is the oldest of all. when one commits a crime, it is important that he receives commensurate punishment in order to restore the peace of mind and repress the criminal tendencies of others. in addition, it is claimed that retributive punishment is needed to maintain respect for the law and to suppress acts of private vengeance (wayne r. lafave and austin w. scott, jr 1994:26). retribution is giving people what they deserve, hitting them back with equal force to a blow they have struck, and treating someone as they have treated others. retribution contends that punishment benefits not only the society, but also criminals. just as a society feels satisfied by “paying back” criminals, giving criminals their “just deserts” offenders benefit by putting right their evil. society pays back criminals by retaliation; and criminals pay back society by accepting responsibility through punishment. both paybacks are at the heart of retribution (joel samaha 2010:23). retribution is right only if offenders chose between committing and not committing crimes. in other words, we can blame criminals only if they had these choices and made the wrong choice. so in popular “do the crime, do the time” what really means is “you chose to do the crime, so you have to do the time”, that is, their wrong choice makes them blameworthy. and their blameworthiness makes them responsible. so as culpable, responsible individuals, they have to suffer the consequence of their irresponsible behavior (joel samaha 2010b:23). according to the retributive theory, punishment is applied simply in proportion to the seriousness of the offence. so the more serious the crime the more serious the punishment should be. ii.2. deterrence deterrence is one of the several rationales of punishment. it is based on the belief that criminals can be prevented because people are afraid of penalties. this theory aims to prevent crime through the example of offenders being punished. that is, it looks forward to the prevention of future crimes. it is to act as a measure of prevention of future crimes. it is to act as a measure of prevention to those who are contemplating criminal activity (jay s. albanese 2012:314). under this theory, the suffering of the criminal for the crime he has committed is supposed to deter others from committing future crimes, lest they suffer the same unfortunate fate. generally deterrence refers to the prevention of criminal acts in the compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 94 society at large by making examples of persons convicted of crimes. there are two types of deterrence; namely general deterrence and specific deterrence. ii.2.1. general deterrence it aims, by the treat of punishment, to prevent the general population who have not committed the crimes from doing so. it relies entirely on the threat of punishment and not on actual punishment. from a general deterrence perspective actual punishment has the role of making the threat credible. it makes other people prudent by inducing the public to refrain from criminal acts. j. bentham, the main proponent of this theory, argues that “rational human being will not commit crimes if they know that the pain of punishment outweighs the pleasure gained from committing the crimes” (joel samaha 2010:16). prospective criminals weigh the pleasure they hope to get from committing a crime now against the threat of pain they believe conduct by using the defendant as an example of what will befall a person who violated the law. they will get from future punishment (joel samaha 2010b:25). it means that general deterrence is directed at preventing crime among general population and it assumes the general motoring public (at least ‘potential’ offenders) will learn from the experience of punished offenders and will refrain from following their example. in general, general deterrence means that you are sending a message to the society by saying: if you do such a thing, this is what awaits you, punishment. ii.2.2. special deterrence special deterrence is based on the assumption that the imposition of sufficiently severe punishment will deter the particular offender from repeating the same kind of offence, or from committing any other offence whatsoever (stanley a. cohen 1982:73). therefore, the objective of specific deterrence is to persuade the person who committed the crime from breaking the law in the future. the actual imposition of punishment creates fear in the offender that if the repeats his act, he will be punished again. in a nutshell, general deterrence is directed at preventing crime among general population, while special deterrence is aimed at preventing future crimes by particular offender. ii.3. rehabilitation it involves a sentence designed to provide treatment for conditions in the offender’s attitudes, personality, or general personal history that may have led to the criminal behavior (jay s. albanese 2012:288). it is seen as the most “humane” goal of punishment. this line of thinking reflects the view that crime is a “social phenomenon” caused not only by the inherent criminality of a person, but by factors in the person’s surroundings. by removing wrong doers from their environment and intervening to change their values and personalities, the rehabilitative model suggests, criminals can be “treated” and possibly suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 95 even “cured” of their proclivities towards crime (roger leroy miller larry, k. gaine 2005:259). rehabilitation borrows from the “medical model” of criminal law. in this model, crime is a “disease,” and criminals are “sick.” according to rehabilitationists, the purpose of punishment is to “cure” criminal patients by “treatment.” two assumptions underline the rehabilitation theory. the first is determinism; that is, forces beyond offenders’ control cause them to commit crimes. because offenders do not choose to commit crimes, we can not blame them for committing them. secondly, therapy by experts can change offenders so that they will not want to commit any more crimes. after rehabilitation, former criminals will control their own destinies (joel samaha 2010:27). therefore rehabilitation basically means the path to restore a criminal to a useful existence in society. the main purpose of rehabilitation, then, is to prevent the recurrence of a crime that has previously been committed. this prevention of habitual offending is the cure that is likely to allow the state in which the convict is situated to present the man or woman back to society with a confident outlook. being able to once again contribute to him or her as well as the greater society is the achievement that is to be expected (or at least hoped for) after lengthy rehabilitation schedules. this theory is the most recent and most humane theory, of all theories raised above; “its foundation is based on the principle of reforming legal offenders through individual treatment. therefore rehabilitation seeks to bring about fundamental changes in offenders and their behavior” (joel samaha 2010:27). as in the case of deterrence, the ultimate goal of rehabilitation is a reduction in the number of criminal offenses. whereas deterrence depends upon a fear of the law and the consequences of violating it, rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality. ii.4. incapacitation incapacitation basically means preventing an individual from committing further criminal act by restraining him or her. sanctions imposed to incapacitate are not intended to reduce an offender’s inclinations to future criminal acts, which would involve treatment to change the person’s attitudes or personality, but to preclude opportunities for criminal behavior at least while the offender is under state control. the death penalty is obviously total denial of the life of individual. long prison terms also illustrate the incapacitation goal, but so do lesser sanctions, including the rules and conditions of probation and the surveillance of persons serving sentence in community (roger leroy miller larry, k. gaine 2005:288). incapacitation refers to the belief that dangerous criminal offenders should be locked away for a long period of time but special deterrence refers to the concept that the pains of their imprisonment should be so severe that on release convicted offenders will not dare to repeat their criminal act (sanford h. kadish, stephen j. schulhoter 1995:58). it makes the offender incapable of offending for a substantial period of time. compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 96 ii.5. the practice of death penalty in ethiopia ethiopia is among the countries where death penalty is included in its criminal code, and it has been practiced for quite a long period of time. it also has been accepted in the ethiopian legal tradition without facing any challenges. legal literatures in the ethiopian situation are not abundantly available. as opposed to european and american states, one is not in a position to go much if he/she wants to explore the historical sources of capital punishment in ethiopia. this is due to the known reason that judgments were not systematically recorded and even if we find scanty records they are not available in the modern libraries of higher education centers or in the internet. generally speaking, it is very difficult to trace the historical genesis of capital punishment accurately in the ethiopian context. but for the purpose of this paper i will try to see capital punishment history in ethiopia as much as possible. ii.6. history of death penalty in ethiopia before the adoption of fetha negest there is no written and organized laws in the country, the absence of any written materials make it difficult to study about capital punishment before that time. but, i do not belief that capital punishment originated after fetha negest. fetha negest, the first integrated legal code, was translated from arabic in the midfifteenth century. the fetha negest provides the death penalty for various criminal offenses and it was applied on different groups of peoples who violate the law of fetha negest. fetha negest was very much influenced by the religious or nearer to the fact by the teaching of christian ethics as propounded in the old and new testament. for these main reasons it seems that fetha negest provides death sentence for various violations of religious ethics. for example, chapter xlvi section ii of the fetha negest states that a prophet who preaches against the divine lord must be slain. again, in the same provision it provides death penalty for a person who gives sacrifice to what were termed as “strange gods”. one who blasphemes god was also punishable to death; even one who has honored “idols” was liable to capital punishment. either man or woman who is found to be a magician or a wizard is subject to death sentence. they shall be stoned, since they are impious. homicide is also a capital offense deserving death sentence on the offender. chapter xlvii of fetha negest retained the nature of homicide as a capital crime deserving capital punishment. the mode of punishment suffered for committing homicide was carried out by killing the body and [thus] separating the soul [from the body] by the means of corporal punishment carried out by the temporal judge, so that the temporal law may be fulfilled. in the fetha negest, occasionally attempted murder was a capital offense punished by death. this is shown by the provision that “the servant who attempted to kill their master must be thrown into the fire”, and also servants who heard the cries of their master while he was being killed, or was certainly aware of what was happening to him, but didn’t render any help would be punished by death. in the fetha negest criminal age of majority for suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 97 homicide was set at the age of seven, which is lower than the present criminal age of majority (abba paulos tzaudu 1968). on the other hand, death sentence was introduced in 1930 penal code of ethiopia in situations such as homicide, giving false evidence (if the taker of life is sentenced to death and put to death because of false evidence given against him, the man who caused his death by giving false evidence shall be sentenced to death. crime committed against the emperor and the royal family and the government. criminals who start war in the country and cause it to be disturbed and ravages (the 1930 penal code of ethiopia, articles 172,175,179,366,404,410,411). jean graven, the drafter of 1957 penal code of ethiopia, provides the reason why ethiopia retained death penalty and its necessity for homicide and write as follows: “in ethiopian context it would be in particular have been an inconceivable mistake, and even an impossibility, to abolish the death penalty at the present time. it is not only necessary for social protection, but is based on the very deepest feeling of the ethiopian people for justice and for atonement. the destruction of life, the highest achievement of the creator, can only be paid for by the sacrifice of the life of the guilty person. as in the christian european system of the middle ages, death is always the necessary condition for the pardon and salvation of the sinner, and also for the expiation for the evil which he has committed, it is accepted and approved by all, and in the first place by the criminal who has deserved it, and is carried out in a dignified atmosphere quite different from that of our former executions with the ax or guillotine” (fasil nahom 1982:129). under the 1957 penal code of ethiopia, many crimes were punished with death penalty like murder (art.522), robbery (art. 671), crimes against the emperor and others; even criminal attempts may cause the death sentence, for example, outrages against the emperor of the imperial family (art. 248), outrages against the dynasty (art.249), outrages against the constitution and constitutional authorities (art.238) and uprising and civil war (art. 240) (the 1957 penal code of ethiopia). the 1957 penal code was amended by a special penal code in 1974 (proclamation no. 8/1974) by increasing the sanction of certain types of crime. a november 1974 decree introduced martial law, which set up a system of military tribunals empowered to impose the death penalty or long prison terms for a wide range of political offenses (ethiopia crime and punishment). in july 1976, the government amended the penal code to institute the death penalty for "antirevolutionary activities" and economic crimes (ethiopia crime and punishment). ii.7. abolition movement in ethiopia as discussed earlier, the death penalty is not a recent practice in ethiopia; rather it has been exercised for a very long period of time. however, nowadays there is an compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 98 international movement for the abolition of this punishment. however, in the country there is no organized public or private movement of abolishing capital punishment, but this does not mean that everyone in the country is accepting it. ethiopia’s record of execution level of death penalty, particularly since the coming into power in 1991 of the current regime, illustrates that capital punishment has been practically abolished (kiya tsegaye 2012). in the last 20 years more than a dozen death penalties have been ruled by the court throughout the country, but only three were implemented (kiya tsegaye 2012b). the new criminal code also tries to improve the method of execution of the death penalty which can also be viewed as one movement (cornell law school). iii. compatibility and necessity of death penalty with the purpose of criminal punishment in ethiopia finally, i discuss the compatibility and the necessity of the death penalty with the purpose of criminal law in ethiopia. the paper winds up with a conclusion as to whether or not the principle of capital punishment contradicts with the purpose of criminal justice. iii.1. does death penalty deter a criminal? under this topic the researcher will assess whether the death penalty is more deterrent than others. if the death penalty is needed to deter future murderers that would be a strong reason in favor of using the death penalty, since otherwise we could be sacrificing the future victims of potential murderers whom we could have deterred. abolitionists believe that the death penalty does not deter more than other penalties and different states have abolished capital punishment for different reasons, but they share common grounds of the inhuman, unnecessary and irreversible character of capital punishment, no matter how cruel the crime committed by the offender. as discussed earlier in this paper deterrence can be categorized into specific and general. here, i will try to discuss whether capital punishment deters the crimes more than other penalties. iii.2. special deterrence the federal democratic republic of ethiopia (hereafter fdre) criminal law aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed by law and should this be ineffective by providing for the punishment of criminals in order to deter them from committing another crime (fdre criminal code, article 1). the fdre criminal code incorporates capital punishment to prevent the wrong doers from committing further crime in the future. so this is the special deterrence nature of the criminal code because as we have discussed previously, special deterrence refers to the use of punishment for criminal activity intended to discourage a specific individual from reoffending. the objective of specific deterrence is to persuade the person who committed the crime from breaking the law in the future. the actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again. however, if we punish suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 99 the offender by death, we are going to punish him for his act, because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. so, we are going to kill the offender, but frightening, unpleasant, or fear are nothing for the offender who is going to die. since once a person died has no chance to live again, frightening, unpleasant, or fear of the offender have nothing in order not to commit further crime. this contradicts with the objective of ethiopian criminal law. modern criminal laws do not take retribution as their objective because capital punishment is the most severe and inevasible punishment that is considered as a fitting to the crime committed. it indicate killing of a person who has killed another person. in our previous history the governments have used death penalty as a revenge for those who oppose the regime. for example, during the emperor era, many people had been punished by death because they did not support the era and attempted to overthrow the throne. it was evident that the government used this opening and took revenge in the name of deterrence. nowadays, this is an act of undemocratic and dictatorial government, that only wants to satisfy their interest, not the interest of the whole society (sable teweldebirhan 2012). execution of criminals completely eradicates one of the main purpose of fdre criminal law i.e. rehabilitation; it means the purpose of imposing penalty on criminals is to provide the treatment for condition in the offender’s attitudes, personality, that may have led to the criminal behavior, so punishing a person by death is against the purpose of the criminal law because the purpose of the criminal law is ensuring public peace and order and its people and inhabitants for the public good (fdre criminal code, article 1). the criminals are part of the society and they are human beings like others and most of the time crimes were committed in exceptional few moments in the offender’s life under highly stressful circumstance. therefore if we punish this criminal by death, we are directly contradicting with the purpose of the fdre criminal law since the criminal law ends up creating happiness to one part of the society and pain to the other, rather it is generally for the whole societal happiness and protection. however, when we punish a criminal by death, we are imposing pain on the victim relatives and leaving the family of the offender without any assistance, so these all make capital punishment non deterrent and i believe killing of someone never solves any problem and never profits the society as a whole but the society may be benefited from the rehabilitation of the offender. iii.3. general deterrence the fdre criminal code also has a general deterrence nature. this can be understood from article 1 which states “to make the offenders a lesson for others” (fdre criminal code, article 1). as we have seen before in the previous chapter, general deterrence aims, by the ttreat of punishment, to prevent the general population who have not committed the crimes from doing so. this is based on the assumption that criminal compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 100 behavior can be prevented if people are afraid of penalties. therefore, general deterrence is designed to send a message to members of the general public that if they engage in criminal conduct their actions will be met with punishment. in this way, others are deterred from committing crimes for fear of the consequences established by the criminal justice system. however, there are different cases that make capital punishment ineffective as a general deterrence because as previously stated, crimes punished with death are usually committed under conditions whereby rational calculations about the consequences for the victims and the criminals themselves are not considered: “on the other hand, when a crime is planned, the criminal ordinarily concentrates on escaping detection, arrest and conviction, rather than on the severity of the punishment. the threat of even the severest punishment will not discourage those who expect to escape detection and arrest. the rationale behind the deterrence doctrine is not adding more severe punishments, but increasing the likelihood that perpetrators will be caught, arrested and convicted. this means that the focus of efforts aimed at preventing crime should be on improving the effectiveness of law enforcement agencies. public confidence that crime will be promptly and professionally investigated and criminals brought to justice is fundamental to deterring crime. this means building up the trust between the community and the law enforcement agencies and developing confidence in the judicial system” (the council of europe and the death penalty directorate general of human rights and legal affairs, council of europe 2010:19). as we can understand from the above discussion persons contemplating the commission of grave crimes do not think in the possibility of detection. they, most times, are sure that they will escape from punishment when they commit the crimes. in other words, they get involved in such type of crime not because the punishment does not deter them but because they hold a high degree of prospect that they will remain undetected. therefore, the more effective the way to deter persons from committing crimes is not putting severe punishment, but increasing the likelihood that the offenders will be caught arrested and convicted. generally, the main purpose of punishment is for the protection of the society, and the reformation of the wrongdoer. it purports to protect society by preventing the same criminals from repeating their crimes, and by acting as a deterrent to other prospective criminals. capital punishment is a notorious failure in these respects. it does indeed remove the particular culprit from the possibility of repeating his crime; but this is of very small account in view of the fact that crime is seldom a career of repeated acts, but consists of single acts perpetrated by different individuals. the man whom we remove from the scene, therefore, is not the man who, if suffered to live, would have been likely to endanger our safety. capital punishment sins most by depriving the culprit of his chances of reformation. the only way to destroy a criminal is by reforming the man who is a criminal. to destroy his bodily life is nothing but a stupid blunder. when the physical life of a criminal is cut suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 101 short by this summary and unnatural means, we do not bring to an end thereby the evil passions which prompted the crime. there is a plausible argument that capital punishment is short handed in deterring prospective offenders or that its deterring effect is not of much relevance. humanistic values, ethical points of view and human rights reasons weighed in favor death penalty. for our criminal justice the writer personally opts for more humane, but also more effective, criminal justice system, paved the way for considering appropriate alternative criminal sanctions to the death penalty. iii.4. problems of executing death penalty innocent people may have been wrongfully convicted because of poor legal representation, mistaken identifications, the unreliable testimony of people who swap their testimony for lenient treatment, police and prosecutorial misconduct and other reasons. poor representation may lead to death sentence because at the time of trial the offender may have been represented by an incapable attorney in that specific area. usually, the quality of legal representation is important to win or lose a case, and those who are economically poor cannot afford to pay for a qualified attorney and will not get good legal advice. even if the state assigned one for them, the assignee cannot fully protect them, because the payment is not satisfactory. furthermore, police failures can also lead to catastrophic results, if they fail to investigate properly or if they use their power unlawfully. most of the police officers in ethiopia are not capable of investigating crimes because of their lack of professional training and lack of good income. most of them are selfish and corrupt. this leads to the conviction of an innocent person. sometimes the prosecutors, whether from negligence or corruption, are responsible for the error. but the cause of a wrongful conviction is not always corruption or negligence on the part of the authorities, or the good-faith error of eyewitnesses. confusing circumstantial evidence often misleads the prosecution and the court. whatever the reason could be, if an innocent person is executed, it is impossible to restore the life of that person. therefore, if we are to allow the death penalty, innocent people inevitably will continue to be executed. capital punishment by its nature is irrevocable. the possibility of wrong execution in itself is sufficient for the abolishment of the death penalty as it has an irreversible effect unlike other types of punishment which can be made good by commensurate compensation. the purpose of fdre criminal code is to serve the ensuring of a fair judicial system in the country. the existence of capital punishment potentially obstructs the promotion of a fair justice system when we see it in view of the standard of proof applicable in criminal justice system. the degree of proof required in the criminal justice system is beyond reasonable doubt. this standard is not equal with “certainty.” hence, there is a possibility for an innocent person to be convicted wrongly, even though the doubt is insignificant. it does not warrant an absolute guarantee on the truth of the conviction. this has also become worse in countries having an undeveloped criminal justice system compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 102 and fact finding mechanisms. professor scheck provided statistics indicating that since the introduction of dna testing in 1989, there were 250 post-conviction exonerations of factually innocent persons through dna evidence, seventeen of those facing capital punishment (supra note 55:19). as we can understand from the above discussion, if there is such a high rate of conviction of innocents in the most developed country like usa, imagine how many innocent people could be convicted by death or any other long term rigorous imprisonment in ethiopia. based on the above premises the writer thinks that proof beyond reasonable doubt is not enough for proving the guilt of offence punishable by death. proceeding towards the death penalty in the absence of conviction based upon “certainty” (beyond all possible doubt) is contrary to fair criminal justice system. on the other hand, the fdre criminal code provides that the death penalty cannot be executed unless it is confirmed by the head of the state. however neither the constitution nor the criminal code provides the condition under which the president can confirm or refuse the judicial conviction. in other words, this gives unconditional discretion to the president. the president is also empowered to commute or give clemency. however, the grounds for giving or refusing such relives by the president are not clear. again the time limit under which the president can confirm or commute the sentence of death is not clearly determined in both the criminal code and the constitution. therefore, the confirmation or commutation of the president may take a long period of time. this long period lapsed before the execution or commutation can cause great embracement and mental torture on the part of the offender, so this contradicts with the requirement of humane and dignified treatment. under article 117(3) of the fdre criminal code “the sentence of death shall not be carried out in public by hanging or by any other inhuman means. the penalty shall be executed by humane means within the precincts of the prison. the means of execution shall be determined by the executive body having authority over the federal or regional prison administration concerned” (fdre criminal code article 117(3)). for me this provision is not clear and it is a very problematic one, because it talks about prohibition of hanging in public and any other inhuman means. but, it did not clearly express the mode of executing the death sentence. it gives huge discretion for the executive body, so only the executive body knows the means of execution. therefore, it is difficult to deter prospective offenders and educate the people without observing and knowing the means of execution. this is because the death of the offender and place of execution may impose on the prospective offenders the threat of fear. therefore, non-disclosing the means of executing capital punishment by itself put in question the deterring effect of death penalty and this is against article one of the fder criminal code because the main purpose of the criminal law is ensuring public peace and order by punishing the potential offenders and give a lesson for other prospective offenders. generally this all are the reason why i oppose capital punishment in ethiopia criminal justice. suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 103 iii.5. does the practical implementation of death penalty lead to arbitrariness and discrimination? capital punishment is envisaged as one of the methods of punishment to be imposed on criminals. the ethiopian constitution saves room for application of the death penalty: “no person may be deprived of his life except as a punishment for a serious criminal offence determined by law” (fdre constitution article 15). following this constitutional provision, the criminal code envisages death penalty as a punishment (articles 117-120) but “only in cases of grave crimes and on exceptionally dangerous criminals.” for example crimes against international law such as genocide and war crimes or crimes against an individual such as aggravated homicide might entail death penalty (article 539 of the code) under the code. and also criminal code mandates the death penalty for aggravated robbery (article 671/2/), treason (article 238/2/, 240/2/, 241,246, 247,248, 251, 258), espionage (article 252/2/), and military offenses (article 270) ( fdre criminal code ). ethiopia is one of the countries that use the death penalty as one form of punishment to deter a criminal from committing further crime as provided under article 117-120 and article 1 of the fdre criminal code. but when we come to the implementation of this article, it is subject to question because there is almost no execution of a criminal by death since the coming into power of the current regime, which impliedly illustrates that capital punishment is practically abolished in the country. as was evidently seen in the past two decades, having a death penalty embedded in the constitution was not a substitute to its implementation, fortunately. so as i have said earlier the practical implementation of the death penalty is abolished, therefore what is the purpose of putting death penalty in our criminal code? this is still a very unwise decision of the government of the country because it still opens the door for confusion of many people. it raises the question, why has the ethiopian government decided to retain the death penalty in its 2004 revised criminal code? the provisions that talk about death penalty should be substituted by other forms of punishments like life imprisonment and other rigorous sentence which are totally compatible with the purpose of our criminal code because as has been already discussed many times, the main purpose of our criminal law is prevention of crime by punishing the criminal in order to deter them from committing further crime in the future and to make them a lesson from others. so for the purpose of fulfilling this elements life imprisonment and other rigorous imprisonment is more effective than death penalty because, unlike death penalty, they are not inhuman and they never violate the personal rights of the prisoners. furthermore, other than the fact that there is lack of practical implementation of death penalty, the writer supports abolishing death penalty because it is an absolute human right violation as it unfairly take the soul of a person and also it is against the morality of all human beings around the world. here, there is no clear evidence in this area, “but according to reuters and amnesty international, the last executions in ethiopia were carried out in 2007 and 1998 respectively. both executed prisoners had been convicted of assassinating the high ranking compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 104 government officials and of military officials. it is entirely possible that the political ramification of these offenses were decisive in the authorities decision to enforce the death sentence, meanwhile, however, ethiopian courts continue to hand down death sentences for offences which fall short of exceptional circumstances. however, based on the countries recent record, it is likely that the majority of these death sentences will not be carried out, for countries growing number of death row inmates, this may mean a de facto sentence indefinite imprisonment year after year, under life threatening conditions of detention” (ethiopia carries out rare execution 2007). one can understand from this the practical implementation of the death penalty is selective or discriminatory. as a result, if there is no equality in the implementation, it leads to arbitrariness and discrimination. a person who kills an ordinary citizen of the country is mostly not convicted by death. even if he or she is convicted by death it is not implemented or executed according to the current practice of the county implementation of the death penalty. whereas, if one person kills a high ranking government official, he or she will most probably be lawfully executed immediately, as has been witnessed before. therefore this allows the government to use death penalty as it wishes, and it is not clear that whether the killing had a political or personal motive, one subject of discourse in the sincerity of the ethiopian criminal justice system should therefore be whether or not the government is using the provision as an effigy to suppress presumed political dissent. therefore, this is against the very purpose of the constitution which states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law, the law shall guarantee to all persons equal and effective protection without discrimination on grounds of race, nation, nationality, or other social origin, color, race, sex, language, religion, political or other opinion, property, birth or other status” (fdre constitution article 25). if we continue our implementation of death penalty like the previous times, it will be totally against the constitutional right of the individuals, because we are clearly violating the principle of equality of the constitution. as we all know, the principle of equality is the equal treatment of all the citizens of the country before the law, whether they are a government official or not. so in our case, when an ordinary citizen is convicted for death because of the killing of a government official it is against the equality principle and against article one of the fdre criminal code because the purpose of punishment is to ensure order, peace, and security of the state, and its people and inhabitants for the public good (fdre constitution article 25). without favoring for the government officials and other selected individual, the law must be equally applicable to all. therefore, the practical implementation of death penalty in our country leads to arbitrariness and discrimination and it leads the government to use death penalty to revenge only the enemies of the regime. therefore, to avoid this discrimination and arbitrariness we should use other means of punishment to create equal treatment of prisoners, by avoiding death penalty and by substituting it with life imprisonment and other serious rigorous imprisonment. because, as we have said in the previous part, life imprisonment is more deterrent than the death penalty and it does not contradict with our criminal law purpose. suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 105 iv. conclusion punishment is an act which is taken by an authority as an imposition of undesirable or unpleasant out come up on the group or individual, in response and deterrent to a particular action that is deemed to be unacceptable, threatening some norm and breaking the rule of law by which the social group is governed. or it is the reaction of the society against the person who breaches the social rule or order. different scholars have tried to justify punishment differently, but almost all of them argued that the purpose of imposition of punishment is to protect the interest of the society or to ensure public peace and order by punishing the wrong doer and deterring him from committing future crime and giving a lesson for other by punishing the criminal. ethiopia is an example of a country that has retained death penalty in the world. its constitution and criminal code allow the death penalty for serious offenses. there are various provisions under the ethiopian criminal code, which entail the death penalty as their punishment. however, death penalty directly contradicts with the purpose of the criminal law because capital punishment favors revenge rather than deterrence, prevents the chance of offender to rehabilitate, ignores the fact that miscarriage of justice may occur, violates the rights of the offenders and creates terrifying pain on the family of the offender and the community. the death penalty may be a cause for the execution of innocent people. people may have been wrongfully convicted because of poor legal representation, mistaken identifications, the unreliable testimony of people who swap their testimony for lenient treatment, police and prosecutorial misconduct and other reasons. capital punishment by its nature is irrevocable. even though the death penalty is still retained in ethiopia, when we come to the practical implementation it is questionable because there is almost no actual implementation of the death penalty after the coming in to power of the current regime. therefore, if there is no actual implementation of the death penalty, there is no clear reason of including it in the code. even the only two executed prisoners had been convicted of assassinating the high ranking government officials and of military officials; this leads to arbitrariness and discrimination and opens the door for government to use the death penalty for revenging the enemies of the government. generally death penalty is not compatible with the purpose of criminal law and it is not necessary for the creation of a prudent citizen within the state. rather, it has a brutal effect within some group of the society or between the societies. compatibility of death penalty with the purpose of criminal punishment in ethiopia the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 106 acknowledgement the writer did six month foundational course in master of human rights and democratization (mhrd) (asia-pacific) from the university of sydney, australia. he also did sephis three weeks international course in history, heritage memory from the federal university of bahia, brazil. thanks to prof. livio sansone from the federal university of bahia who introduced me african studies through sephis program. he did m.a., m.phil and phd on the issues of human rights of dalits in india. he is a human rights practitioner from india. he acknowledges few human rights friends who gave him precious advises on framing the work along with ethiopian law practitioners who helped him in order to work on this theme among whom ethiopian law graduates of mekelle university along with his wife selamawit hailu bezabih who, despite of sleepless nights with our eight months baby boy saviour, was of much help in gathering and compiling the information that was vital for the completion of this paper. he also strongly acknowledges the age of human rights journal editororial team who drafted, revised and modified the paper. references abba paulos, tzaudu (1968) the fetha nagast, carolina academic press. cornell law school, cornell center on death penalty worldwide, available at www.deathpenaltyworldwide.org/country-search-post.cfm?country=ethiopia last visited on may 22, 2017 dejene girma, janka (2012) “the relevance of hobbesian principles of punishment in today’s world in light of the ethiopian criminal system”; jimma university journal of law, vol. 4 no. 1, https://www.ju.edu.et/jl/sites/default/files/3dejene.pdf , accessed 10 june 2017. ethiopia crime and punishment available on www.photius.com/countries/ethiopia/national_security/ethiopianational_security_crime_andpunishment.htm accessed 14 march 2017 at 3:23 a.m. ethiopia carries out rare execution, addis ababa, ethiopia (reuters)available at http//: www.nazret.com 2007, accessed 12/23/2016, 06:13 am fasil, nahom (1982) “punishment and society: a development approach”, journal of ethiopian law, vol.12,https://www.scribd.com/document/16309386/the-necessityand-compatibility-of-capital-punishment-withhuman-right-laws-with-particularreference-to-ethiopia accessed 27 february 2017 federal democratic republic of ethiopia constitution federal democratic republic of ethiopia criminal code http://www.photius.com/countries/ethiopia/national_security/ethiopia-national_security_crime_andpunishment.htm http://www.photius.com/countries/ethiopia/national_security/ethiopia-national_security_crime_andpunishment.htm suryaraju mattimalla the age of human rights journal, 11 (december 2018) pp. 91-107 issn: 2340-9592 doi: 10.17561/tahrj.n11.5 107 h. l. a. hart review by: robert s. summers, autumn, 1969. “punishment and responsibility” source: the university of toronto law journal, vol. 19, no. 4, published by: university of toronto press. jay s, albanese (2001) criminal justice, pearson/a and b, 2004, uk. joel, samaha (2010) criminal law, 10th edition, wadsworth publishing, usa. kiya tsegaye, death penalty – shouldn’t ethiopia consider abolishing it? march 1, 2017, available at http://www.addisstandard.com/death-penalty-shouldnt-ethiopiaconsider-abolishing-it accessed january 12, 2017 michael, j. allen (2017) textbook on criminal law, 5th edition, oxford university press, uk. roger leroy miller larry, k. gaines (2005) criminal justice in action, 3rd edition, thomson learning, sanford h. kadish and stephen j. schulhoter (1995) criminal law and its process, 6th edition, little, brown and company, usa. seble teweldeberhan (2012) ‘the failed coup of mengistu and germame neway’(ethiopian news, entertainment & business information network, 4 april), https://www.ezega.com/news/newsdetails?newsid=3258, accessed 20 december 2017 stanley a. cohen (1982) ‘an introduction to the theory, justifications and modern manifestations of criminal punishment’, mcgill law journal, vol.27. http://lawjournal.mcgill.ca/userfiles/other/6940687-cohen.pdf accessed 10 january 2017 the 1930 criminal code of ethiopia the 1957 criminal code of ethiopia the council of europe and the death penalty directorate general of human rights and legal affairs, council of europe, ‘death is not justice’, september 2010, available at https://www.coe.int accessed 19 december 2017. thomas, mcpherson. 1967. “punishment: definition and justification”, analysis, volume 28, issue 1, 1 october, published by: blackwell publishing on behalf of the analysis committee, available at http://www.jstor.org/stable/3327609 accessed 9 november 2016. wayne r lafave and austin w scott jr. (1986) criminal law, second edition, west publishing co, usa. abstract: the main target of this paper will be to discuss the compatibility and the necessity of the death penalty in ethiopia with respect to human rights. it will give particular focus on the criminal code of the federal democratic republic of ethi... summary: i. introduction; ii. general justifications of punishment; ii.1. retribution; ii.2. deterrence; ii.3. rehabilitation; ii.4. incapacitation; ii.5. the practice of death penalty in ethiopia; ii.6. history of death penalty in ethiopia; ii.7. abo... ii. general justifications of punishment ii.1. retribution iv. conclusion references he age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 43 the long road to the international recognition of economic and social rights: the right to an adequate standard of living1 germana aguiar ribeiro do nascimento2 abstract: a long road was necessary for economic and social rights to be internationally recognized. in fact, it was only after the second world war that the protection of human rights, including economic and social rights, became one of the aims of the united nations. despite that, this legal protection was by no means made without controversies, especially when it comes to economic and social rights. the fact that most of the articles of the universal declaration of human rights refer to civil and political rights corroborates these difficulties. only articles 22 through 27 protected economic and social rights. the objective of this article is to shed some light into this process, as the universal declaration has been the foundation of the codification of the whole human rights system. particular attention will be given to the discussions around the inclusion of article 25 that refers to the right to an adequate standard of living. it is interesting to analyze how this right was adopted during the process of elaboration of the declaration, as it was then incorporated by so many texts and influenced the recognition of other rights. in fact, if today we are able to have autonomous rights to water, to health, to food, to housing and to education, it is thanks to the proclamation of the right to an adequate standard of living in the first place. keywords: recognition; economic and social rights; right to an adequate standard of living. summary: i. introduction; ii. the united nations charter: any room for human rights?; iii. the united nations charter: the origins of the universal declaration of human rights; iv. the first draft and the right to an adequate standard of living; v. the reformulation of the first draft and the right to an adequate standard of living; vi. final considerations; vii. references. i. introduction a wide range of international law texts nowadays protects economic and social rights. however, a long time was necessary for the recognition of these rights to be a reality. in fact, it is only after the events in europe in the 30s and the second world war that the international community realized that an international text protecting human rights was crucial3. the atrocities committed during these events could no longer be 1 this article has been written in the framework of prometeo poject financed by generalitat valenciana, gvprometeoii2014-078 with the title “justicia social, exigibilidad de los derechos humanos e integración” and of the research program grisolia (ref. 2016/098), also financed by the autonomous government. 2 brasilian lawyer and anthropologist. master in human rights at université catholique de lyon (fondation de france). researcher in training in human rights, democracy and international justice at universitat de valència, spain (contrato santiago grisolía) (germana.aguiar@uv.es). 3 ssenyonjo, manisuli (2011): economic, social and cultural rights, surrey, ashgate publishing company, xi. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 44 accepted. despite that, the proclamation of the universal declaration by the united nations was by no means made without debates, especially when it came to social and economic rights. the fact that most of the articles of the universal declaration of human rights refer to civil and political rights confirms the resistence of the international community to recognize economic and social rights. only articles 22 through 27 of this text protected economic and social rights. the right to an adequate standard of living is one of them. it consists of guaranteeing that everyone will be able to enjoy the minimum that is necessary for his subsistence in terms of food, housing, clothing, medical care and education. as añón explains it4, the right to an adequate standard of living summarizes the main concern of all economic, social and cultural rights, corroborating the interdependence and interrelation of those rights. in fact, article 25 of the universal declaration of human rights establishes that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. motherhood and childhood are entitled to special care and assistance. all children, whether born in or out of wedlock, shall enjoy the same social protection.” the importance of this right is also confirmed by the fact that it is contained not only in the universal declaration but also in other treaties of the united nations system. in fact, article 11.1 of the international covenant on economic, social and cultural rights also guarantees it. by the same token, article 27 of the convention on the rights of the child and article 28 of the convention on the rights of persons with disabilities also establish the right to an adequate standard of living. all these texts were somehow based on the universal declaration of human rights. actually, the universal declaration has been the foundation of the codification of the whole human rights system 5 . in this sense, it served as a model to not only international but to national provisions. in 1993, in the world conference on human rights 6 , the states highlighted that the universal declaration was the source of inspiration and had been the basis for the united nations in making advances in standard settings as contained in the existing international human rights instruments. consequently, it is interesting to analyze the process that led to the adoption of the universal declaration of human rights and how the right to an adequate standard of living was adopted, as it was then incorporated by so many texts and influenced the 4 añón, maría josé (2003): “el derecho a no padecer hambre y el derecho a la alimentación adecuada, dos caras de una misma moneda”, in abramovich, victor, m. j. añón and christian courtis (eds.): derechos sociales instrucciones de uso, mexico df: doctrina jurídica contemporánea, p. 103. 5 hannum, hurst (1995): “the status of the universal declaration of human rights in national and international law”, 25 georgia journal of international and comparative law, p. 289. 6 united nations (1993): world conference on human rights, doc. a/res/48/121. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 45 recognition of other rights7. in fact, this would help to understand the context in which it was adopted. undoubtedly, to proclaim the right to an adequate standard of living as a universal right was a big step8. if today we are able to have autonomous rights to water, to health, to food, to housing and to education, it is thanks to the proclamation of the right to an adequate standard of living in the first place. ii. the united nations charter: any room for human rights? the complex process that culminated in the proclamation of the universal declaration of human rights took some years9. it was impossible to accept that policies of racial discrimination and genocide prevailed over values that protected human dignity10. even if the expression “human rights” had been used in the eighteenth century, it is the atrocities committed in the second world war that will make it popular in the whole world. indeed, the struggle of the second world war made the american president franklin d. roosevelt give his famous speech “four freedoms”, in 1941, in which he committed himself to prepare a post-war world of freedom. this speech and other initiatives on human rights will influence the formulation of the united nations charter. roosevelt´s speech summarized the values that should be fought for in the second world war. it said, “in the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. the first is freedom of speech and expression—everywhere in the world. the second is freedom of every person to worship god in his own way—everywhere in the world. the third is freedom from want—which, translated into world terms, means economic understandings, which will secure to every nation a healthy peacetime life for its inhabitants—everywhere in the world. the fourth is freedom from fear—which, translated into world terms, means a worldwide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world. that is no vision of a distant millennium. it is a definite basis for a kind of world attainable in our own time and generation. that kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.” this speech will serve as a reference for the universal declaration of 1948; it will be incorporated in its preamble and in the preambles of the international covenant on civil and political rights and of the international covenant on economic, social and cultural rights adopted in 1966. the need for a charter on human rights is also strenghtened by the fact that prime minister churchill agreed with president roosevelt a “declaration by united 7 sudre, frédéric (2008): droit européen et international des droits de l´homme, paris, presses universitaires de france, p. 44. 8 eide, asbjørn (2010): freedom from need, stockholm, volume 55, scandinavian studies in law, p. 177. 9 schabas, william a. (2013): the universal declaration of human rights – the travaux préparatoires, cambridge, cambridge university press, p. 1xxi. 10 sohn, louis b. and thomas buergenthal (1973): the united nations as protector of human rights, new york, contemporary legal education series, p. 506. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 46 nations to preserve human rights”11. in fact, later in 1941, roosevelt and churchill adopted the atlantic charter12, which was not a declaration or a treaty but the affirmation “of certain common principles in the national policies of their respective countries on which they based their hopes for a better future for the world.” the sixth clause of this charter determined that “they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want”. in another address13, in 1944, roosevelt reaffirmed the need to also codify and protect economic and social rights “this republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. they were our rights to life and liberty. as our nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. we have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘necessitous men are not free men.’ people who are hungry and out of a job are the stuff of which dictatorships are made”. the freedom from want is mentioned another time in this affirmation, confirming its importance and the concern of roosevelt to eliminate poverty. as far as the right to an adequate standard of living is concerned, this is the most important freedom, as it is where the foundation of this right lays in. other pioneer resource in the matter of human rights was the publication of wells: “the rights of man or what are we fighting for?” as it is mentioned by schabas14. wells prepared in this book his own declaration, in which he gave particular importance to the right to subsistence and to work15. previously to that, wells had already put forward his campaign on human rights with a letter published in the times on 23 october 1939, which contained a declaration of rights16. another initiative that influences the universal declaration and, therefore, the proclamation of the right to an adequate standard of living is the international bill of rights prepared by hersch lauterpacht17. this author affirms “the value of political 11 o´connell, rory and tom obokata (2009): “the united kingdom: developing a human rights culture”, 60 years of the universal declaration of human rights in europe, oxford, intersentia, p. 27. 12 united nations (1941): the atlantic charter, available at: http://www.un.org/en/sections/history-unitednations-charter/1941-atlantic-charter/ 13 rosenman, samuel (ed.) (1950): the public papers & addresses of franklin d. roosevelt, vol xiii, new york, harper, 40-42. 
 14 schabas, william a. (2013): the universal declaration of human rights – the travaux préparatoires, cambridge, cambridge university press, p. 1xxiv. 15 wells, h. g. (1940): the rights of man, harmondsworth, penguin. 16 hertig randall, maya (2013): “the history of international human rights law”, research handbook on human rights and humanitarian law (eds. robert kolb and gloria gaggioli), northampton, edward elgar publishing, p. 15. 17 lauterpacht, hersch (1945): an international bill of the rights of man, new york, columbia university press. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 47 freedom is impaired by the absence of substantive economic freedom, by economic insecurity, by undeserved want, and by absence of educational opportunity18.” that is to say, there is no political freedom if you cannot afford your own subsistence. all these initiatives were part of a movement that wanted the human rights to be protected to guarantee a world without war. in fact, numerous organizations and individuals produced their own draft of an international bill19, putting pressure on the international community to include human rights in the united nations charter that was to be adopted. in fact, as it was previously mentioned, after the second world war, the states felt they could no longer fear aggression, and for that, they realized that it was necessary to create alliances and to make collective efforts to guarantee peace. in that sense, in 1944, the allies decided, “it was imperative for them to meet and draft a charter for a new international organization that would become known as the united nations20”. in reality, they realized that their borders and resources were not enough to protect them from aggression and from war. consequently, in august, september and october 1944, china, the united states, the united kingdom and the soviet union met in the dumbarton oaks conference21, to create an organization to replace the league of nations. in spite of all pressure to include human rights in the united nations charter, the united kingdom, the united states and the soviet union agreed not to make any reference to these rights in the text. the proposal of the foreign affairs minister of panama, ricardo j. alfaro, to include a “statement of essential human rights” in the charter, was not retained22. china was the only country that was willing to compromise to guarantee racial equality and human rights in the text. as a consequence, many states showed their dissatisfaction with not only the absence of human rights in the charter, but also for not participating in the debates. iii. the united nations charter: the origins of the universal declaration of human rights the absence of some countries in the process of formulation of the united nations charter as well as the absence of human rights in this instrument led to much discontent. in fact, in the inter-american conference on war and peace, held in 1945, twenty one american countries highlighted that they had not taken part in the dumbarton oaks conference and affirmed they desire to see a bill of rights included in the united nations 18 lauterpacht, hersch (1945): an international bill of the rights of man, new york, columbia university press, p. 156. 19 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 17. 20 lauren, paul gordon (2011): the evolution of international human rights, philadelphia, university of pensylvania press, p. 160. 21 united nations (1946-947): the yearbook of the united nations, new york, united nations publications, p. 4. 22 de schutter, olivier (2014): international human rights law, cambridge, cambridge university press, p. 16. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 48 charter23. the inter-american juridical committee will later prepare a declaration of the international rights and duties of man. other advocates for human rights also reacted with concern when they saw that the proposals of the great nations did not consider any human rights, but only matters of sovereignity. as it is explained by lauren24, the actions of the powers in the conference showed that they had “everything to do with geopolitics and almost nothing to do with normative values about peacemaking and human rights”. the criticism that followed those actions confirmed the commitment of the activists, ngos, and many other authors with human rights. vociferous debates and protests were organized. the ambassador of new zealand in the united states affirmed “no adequate machinery for securing peaceful change and economic justice —only words (...). it aims too low.”25 all this pressure led to the approval by the secretary stettinius that the idea of human rights should be incorporated in the united nations charter, if not in a separate bill of rights, in explicit references in its text to recognition and protection of human rights26. the united nations charter was adopted in june and entered into force in october 1945. due to the criticism, references to human rights were made in six articles of the charter27. however, article 68 is the most important as it calls for the establishement of a commission on human rights: “the economic and social council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions”. in february 1946, the commission on human rights was established through the resolution of the economic and social council e/2028. it is affirmed in the section a, paragraph 2 of the resolution that the work of the commission “shall be directed towards proposals, recommendations and reports to the council, regarding: a) an international bill of rights”. the initial members of the commission were: m. paal berg (canada), professor rené cassin (france), m. fernand dehousse (belgium), mr. victor raúl maya de la torre (peru), mr. k. c. neogi (india), mrs. roosevelt (united states) and dr. john c. h. wu (china). this nuclear commission was a temporary body, charged with making propositions on the definitive composition of the commission29. 23 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 17. 24 lauren, paul gordon (2011): the evolution of international human rights, philadelphia, university of pensylvania press, p. 180. 25 cited in lauren, paul gordon (2011): the evolution of international human rights, philadelphia, university of pensylvania press, p. 182. 26 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 17. 27 articles 1, 13, 55, 62, 68 and 76. 28 united nations (1945): resolution e/20. 29 schabas, william a. (2013): the universal declaration of human rights – the travaux préparatoires, cambridge, cambridge university press, p. 1xxix. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 49 one of these propositions was that the commission should be geographically equitable. as a consequence, the economic and social council appointed the following nations to be part of the commission that was in charge of the declaration: australia, belgium, byelorussian soviet socialist republic (bssr), chile, china, egypt, france, india, iran, lebanon, panama, philiphine republic, united kingdom, united states of america, union of soviet socialists republic, the ukraine, uruguay and yugoslavia. from january 1947 to december 1948, this commission would work on the project to write an international bill of rights. morsink 30 points out the seven formative drafting stages of the universal declaration of human rights: “(1) the first session of the commission, (2) the first session of the drafting committee that it created, (3) the second session of the com mission, (4) the second session of the drafting committee, (5) the third session of the commission, (6) the third committee of the general assembly, and (7) the plenary session of the same 1948 assembly”. in this context, as a result of the first session of the commission, a drafting committee was established. this commitee was composed by the chairman, the vicechairman and the rapporteur: roosevelt, chang and malik, respectively. the director of the united nations human rights division john humphrey was invited for a meeting with this committee. at the end of this meeting, humphrey was invited to elaborate a preliminary draft. iv. the first draft of the universal declaration and the right to an adequate standard of living it is possible to say that the first and basic draft outline of the declaration was produced by humphrey, in june 194731. eleanor roosevelt affirmed referring to this draft that it “was not a proposed bill of human rights, but simply a working document on the basis of which the drafting committee hoped to prepare a preliminary draft bill for the consideration of the commission on human rights32”. in spite of that, this first draft outline was of crucial importance as it was used as a basis for the debate to start. the participation of different actors in the elaboration of the declaration makes it difficult to say who was its main architect. indeed, some emphasize the role of eleanor roosevelt in the process of the text`s elaboration. others point out the authority of charles malik of lebanon and chang wu of china. on the other hand, some call rené cassin the father of the declaration33. john humphrey is also claimed to be its first author. it is very hard to reach a conclusion, as the declaration was a result of many different drafts and 30 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 19. 31 united nations, economic and social council (1947): commission on human rights, drafting committee, draft outline of international bill of rights, doc. e/cn.4/ac.l/3 32 united nations, economic and social council (1947): commission on human rights, drafting committee, first session, summary record of the first meeting, doc. e/cn.4/ac.l/sr.1, p. 5. 33 winter, jay and antoine prost (2013): rené cassin and human rights: from the great war to the universal declaration, cambridge, cambridge university press, p. 237. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 50 work of various governments and people. in fact, it was difficult to reach a consensus on the text, lots of synthesis and compromise were required34. the right to an adequate standard of living is also part of this process. in this sense, it is necessary to point out that the first draft outline was a result from other drafts that john humphrey had collected, the most important ones being the one sent by the american law institute, elaborated from 1942 to 1944 and introduced by panama35; and the draft submitted by the inter-american juridical committee, elaborated in 1945 and submitted by the delegation of chile36. the draft submitted by the delegation of cuba 37 and the one submitted by the american federation of labor 38 were also considered. in fact, humphrey had asked his staff to collect all documents referring to human rights that had been proposed to the united nations. as he affirms “i was no thomas jefferson and, although a lawyer, i had had practically no experience drafting documents. but since the secretariat had collected a score of drafts, i had some models on which to work39”. in this sense, humphrey mixed and molded his first draft according to the ones he had collected. his document consisted in a preamble and forty eight articles. rené cassin will prepare another draft on the basis of the material assembled by humphrey40. in the preamble of his draft, humphrey made allusion to the four freedoms affirmed by roosevelt. the forty eight articles, that outlined individual rights, were divided in three sections: liberties, social rights and equality. most of the articles related to civil and political rights, as they were the least controversial. as far as social and economic rights are concerned, and more particularly the right to an adequate standard of living, its first version was given by humphrey as it follows: he decided to divide the rights to health, food and housing in two articles. article 35 of his draft disposed “everyone has the right to medical care. the state shall promote public health and safety.” on the other hand, article 42 of humphrey`s draft determines that “everyone has the right to good food and housing and to live in surroudings that are pleasant and healthy”. 34 benoît-rohmer, florence (2009): “france: the origins, with the prospect of increasing effect”, 60 years of the universal declaration of human rights in europe, oxford, intersentia, p. 19. 35 united nations, economic and social council (1946): statement of essential human rights/presented by the delegation of panama, doc. e/hr/3 36 e/cn.4/3. this is a preliminary draft of the american declaration of the rights and duties of man. 37 united nations, economic and social council (1946): draft declaration on human rights and letter of transmittal/cuban legation, doc. e/hr/1 38 united nations, economic and social council (1946): proposal submitted by the american federation of labor to the secretary general of the united nations, doc. e/ct.2/2 39 humphrey, john (1984): human rights and the united nations: a great adventure, new york, transnational publishers, p. 31. 40 hobbins, a. j. (1989): rené cassin and the daughter of time: the first draft of the universal declaration of human rights, fontanus ii, p. 8. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 51 undoubtedly, article 35 was inspired from article 16 of the draft declaration sent by the delegation of chile41 that said, “every person has the right to social security. the state has the duty to assist all persons to attain social security. to this end the state must promote measures of public health and safety and must establish systems of social insurance and agencies of social cooperation (...)”. humphrey opted for changing the expression “must” for “shall”. as it is pointed out by morsink42, in doing so, humphrey highlighted the fact that the state shall promote health as a consequence of the first affirmation, that everyone has the right to medical care: “in this way the state policy of the second sentence is seen to flow from the right enunciated in the first sentence and not the reverse.” hence, it is possible to verify that the influence of latin-american sources of rights in this draft is undeniable. as it is explained by glendon43, the drafts produced by panama and chile were very much appealing because their elements resonated with nonwestern traditions. in fact, in the fourties, latin-american countries were gaining independence, which influenced a lot in their rights discourse. this discourse incorporated not only civil and political rights but also rights related to social justice, equality and fraternity. in fact this trend was seen in the constitutions of some latinamerican countries. when it comes to the right to food and housing, article 42 of the proposal made by humphrey, it is possible to affirm that he got inspiration from the panamanian proposal and from the one submitted by cuba. indeed, article 14 of the statement of essential human rights presented by the delegation of panama disposes that: “everyone has the right to adequate food and housing. the state has a duty to take such measures as may be necessary to insure that all its residents have an opportunity to obtain these essencials.” on the other hand, the draft declaration on human rights of the cuban delegation44 contained some social rights in its articles 10 to 14. in fact, it determined that every human being shall have the following rights: article 11, the right to adequate food; article 12, the right to hygienic living conditions and to clothing suitable for the climate in which he lives; article 13, the right to live in surroudings free from avoidable diseases; article 14, the right to adequate medical assistance. therefore, article 42 proposed by humphrey “everyone has the right to good food and housing and to live in surroudings that are pleasant and healthy”, is a mix of both articles 14 of the panamanian draft and article 13 of the cuban draft. furthermore, 41 united nations, economic and social council (1947): draft declaration of the international rights and duties of man, formulated by the inter-american juridical committee, submitted by the delegation of chile, doc. e/cn.4/2. 42 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 197. 43 glendon, mary ann (2003): “forgotten crucible: the latin american influence on the universal human rights idea”, 16 harvard human rights journal, p. 32. 44 cited by schabas, william a. (2013): the universal declaration of human rights – the travaux préparatoires, cambridge, cambridge university press, p. 16. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 52 although the right to housing had already been guaranteed in the latin-american constitutions45, such as article 10 of the constitution of chile and article 58 of the constitution of costa rica, the right to food was a novelty. in the comment to article 14 made by the panamanian delegation, it is emphasized that food had not been dealt with in constitutional instruments, but its importance, pointed out by the united nations conference on food and agriculture46, held in 1943, shows the necessity to protect and codify it as a right. humphrey´s draft will be the basis for discussion until the last version of the declaration could be adopted. v. the reformulation of the first draft and the right to an adequate standard of living after two meetings of the drafting committee, the working group asked rené cassin to rearrange and redraft the material prepared by john humphrey in the light of the discussions the committee had had47. therefore, the right to an adequate standard of living is rewritten by cassin. his draft consisted in a preamble and fourty-four articles. according to morsink48, the article 35 and 42 proposed by humphrey were replaced for one only article, that added "everyone has a right to the best health conditions possible and to assistance to preserve them. the community shall promote public hygiene and the betterment of housing and food conditions". the right to medical care is replaced by the right to best health conditions, which is not as concrete. it is possible to verify that for cassin social and economic rights were not as important as civil and political rights49. the expressions “to promote” and “best health conditions” are not as stronger as the ones proposed by humphrey. in the fourteenth meeting of the committee, after some suggestions of the united states, article 33 of cassin was replaced by “every one, without distinction of economic and social condition, has the right to the highest attainable standard of health. the responsibility of the state and community for the health and safety of its people can be fulfilled only by provision of adequate health and social measures 50". the rights to 45 united nations, economic and social council (1947): commission on human rights, drafting committee, international bill of rights documented outline. part 1, doc. e/cn.4/ac.l/3/add. 1. 46 united nations (1943): united nations conference on food and agriculture, final act and section reports, washington, department of state publication. 47 united nations, economic and social council (1947): commission on human rights, drafting committee, first session, report of the drafting committee to the commission on human rights, doc. e/cn.4/21, p. 3. 48 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 294. 49 in fact, some authors still consider civil and political rights as more relevant than economic and social rights. however, as it was declared in 1993 in viena, these discussions have no longer place as all rights are interdependent and interrelated and without economic and social rights one cannot enjoy his civil and political rights. 50 united nations, economic and social council (1947): commission on human rights, drafting committee, international bill of rights, first session, summary record of fourteenth meeting, doc. e/cn.4/a.c.1/sr.14, p. 8. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 53 adequate food and housing proposed by humphrey completely disappeared. the right to medical care became the right to the highest attainable standard of health. economic and social rights were seen as rights of second category; therefore, there was no reason to make them relevant. this context will change in the second session of the drafting committee, which happened in new york, from 3rd of may to 21st of may 1948. in this session, the committee considered comments from governments. when it comes to article 33, mr. bogomolov, representing the union of soviet socialist republic, proposed that “the right of the individual to a proper protection of his health should be expressly formulated” and that “it was the responsibility of the state to guarantee to the individual cheap and accessible medical assistance and to take general measures for the protection of his health”51. as a response to it, cassin proposed the following: “everyone has the right to the protection of his health, by means of good housing, adequate food and medical care52.” it is evident that cassin elaborated this article to improve the vagueness of article 33, by incorporating the rights to housing and food that had been proposed by humphrey. general romulo of the philippines proposed that article 33 were replaced by “everyone without distinction as to economic or social conditions has the right to preservation of his health by means of adequate food, clothing, housing and medical care.53” this was the text adopted by 4 votes to 0 with 2 abstentions. the mention to clothing had already been made in the text proposed by cuba. in fact, in its article 12 it affirmed that everyone had “the right to hygienic living conditions and to clothing suitable for the climate in which he lives”. for morsink54 “this text did represent a return to the basic righ talk humphrey had used”. the text of article 33 will change again in the fortieth meeting of the commission on human rights. indeed, the chairmen eleanor roosevelt had received an amendment submitted by the united kingdom, suggesting that the word “by means of adequate food, clothing, housing and medical care” should be replaced by “through the highest standard of food, clothing, housing and medical care which the resources of the state or community can provide55”. in fact, for the representant of the united kingdom it was a mistake to guarantee this right without making reference to the duties of the beneficiaires56. this recommendation was put to vote, and was accepted by 8 votes to 2 with 5 abstentions. 51 united nations, economic and social council (1947): commission on human rights, drafting committee, first session, summary record of eighth meeting, doc. e/cn.4/a.c.2/sr.8. 52 united nations, economic and social council (1947): commission on human rights, drafting committee, first session, summary record of eighth meeting, doc. e/cn.4/a.c.2/sr.8. 53 united nations, economic and social council (1947): commission on human rights, drafting committee, first session, summary record of eighth meeting, doc. e/cn.4/a.c.2/sr.8. 54 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 195. 55 united nations, economic and social council (1947): commission on human rights, second session, summary record of fourtieth meeting, doc. e/cn.4/a.c.2/sr.40. 56 united nations, economic and social council (1947): commission on human rights, second session, summary record of fourtieth meeting, doc. e/cn.4/a.c.2/sr.40. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 54 the new article 33 became “everyone without distinction as to economic and social conditions, has the right to the preservation of his health through the highest standard of food, clothing, housing and medical care which the resources of the state or community can provide. the responsibility of the state and community for the health and safety of its people can only be fulfilled by provision of adequate health and social services.” as morsink57 points out the third session of the commission wanted to keep things short so it decided to amalgamate the article on health care rights (second session's article 33) with the rights to social security and the protection of motherhood and children (article 34), this later became article 25 of the draft. this fusion was suggested by india and the united kingdom, that proposed that the articles became one article that disposed “everyone has the right to a standard of living adequate for health and well-being, including security in the event of unemployment, disability, old-age or other lack of livelihood in circumstances beyond his control58”. the proposal made by india and the united kingdom was analyzed in the sixtysixth meeting of the commission on human rights, held in 9 june 1948. on the occasion, mrs. roosevelt emphasized her preference to the new article, affirming that it was briefer and in better form. she also suggested that the words “necessary social services and” should be included before the word “security 59 ”. on the other hand, mr. pavlov, representing the union of soviet socialist republics said that this new version disregarded the right to a dignified standard of living and the rights to medical care and housing. he highlighted that these rights had to be stressed and asked that his suggestions were taken into consideration by the drafting sub-committee60. the new draft for articles 25 and 26 prepared by the drafting sub-committee61 was considered in the seventieth meeting. it read “1. everyone has the right to social security. this includes the right to a standard of living and social services adequate for the health and wellbeing of himself and his family and to security in the event of (against the consequences of) unemployment, sickness, disability, old age or other lack of livelihood in circumstances beyond his control. 2. mother and child have the right to special care and assistance.” as a response to this new formulation, mr. pavlov affirmed that it was nowhere an improvement, as it made no reference to housing and medical assistance. to that mrs. roosevelt replied saying the expression “social security” already 57 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 196. 58 united nations, economic and social council (1948): commission on human rights, third session, india and the united kingdom: proposed amendments to the draft declaration on human rights, doc. e/cn.4/99. 59 united nations, economic and social council (1948): commission on human rights, third session, summary record of the sixty-sixth meeting, doc. e/cn.4/a.c.2/sr.66. 60 united nations, economic and social council (1948): commission on human rights, third session, summary record of the sixty-sixth meeting, doc. e/cn.4/a.c.2/sr.66. 61 united nations, economic and social council (1948): commission on human rights, third session, report of the sub-committee consisting of the representatives of france, india and the united kingdom, on articles 25-26 of the draft declaration on human rights, doc. e/cn.4/127. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 55 incorporated those rights, so it was not necessary to mention each of them. mr. metall, representing the international labour organization proposed a new version of the article, that read: “everyone has the right to a standard of living, and to social services adequate for the health and wellbeing of himself and family, and to social security including protection in the event of unemployment, sickness, invalidity, old age and the loss of livelihood in circumstances beyond his control62”. these proposals will be later analyzed in the seventy first meeting of the commission on human rights. in fact, in the seventy first meeting, held in the 14th of june 1948, mrs. roosevelt read the proposal made by the international labour organization. mr. pavlov, representing the ussr, reacted to this formulation asking that it made reference to “social insurance, housing and medical care”. the rights to food and clothing were not considered by the urss: in fact, the urss proposal read: “1) everyone has the right to social security and to a standard of living sufficient for the maintenance of his own welfare and health as well as those of his family, and in particular the right to material security in case of unemployment, sickness, disability, old age or the loss of means of subsistence for reasons beyond his control, and in case of employment, the right to social insurance at the expense of the state or of employers, in accordance with the legislation of each country. 2) everyone has the right to medical care and physician`s help in case of sickness. 3) everyone has the right to housing worthy of the dignity of the human being. the state and community should take all necessary measures, including legislative ones, to insure for every person real possibilities of enjoying all these rights”. as a consequence of the absence of the rights to food and clothing, the chinese delegation proposed that not only the right to housing and medical care were included, but the four of them. cassin reacted to both proposals affirming that the ilo proposal was satisfactory, but he had no objection to the word “housing and medical care” being included63. mrs. roosevelt and mr. wilson, representing the united states and the united kingdom also considered that the ilo proposal was complete and satisfactory. for them, there was no need to make specific reference to the rights to housing, medical care, food and clothing as they had been incorporated in general terms in the ilo text. mrs. roosevelt compromised though, affirming that “for the sake of unanimity she was prepared to accept the addition of the words “housing and medical care64”. as a response, mr. pavlov of the ussr highlighted that it was not possible to say that the right to medical care was inferred in the ilo draft. he emphasised that “it was true that the text spoke of standards of living and of social services adequate for health, but there was no provision for cases where health was lost or threatened65”. indeed, mr. 62 united nations, economic and social council (1948): commission on human rights, third session, report of the sub-committee consisting of the representatives of france, india and the united kingdom, on articles 25-26 of the draft declaration on human rights, doc. e/cn.4/127. 63 united nations, economic and social council (1948): commission on human rights, third session, summary record of the seventy-first meeting, doc. e/cn.4/sr.71. 64 united nations, economic and social council (1948): commission on human rights, third session, summary record of the seventy-first meeting, doc. e/cn.4/sr.71, p. 6. 65 united nations, economic and social council (1948): commission on human rights, third session, summary record of the seventy-first meeting, doc. e/cn.4/sr.71. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 56 pavlov wanted the right to medical care be admitted not as a principle but as a right guaranteed by legislative measures66. furthermore, it was not sufficient to talk about standards of living and wellbeing, this was not the same as determining a human right to housing. mr roosevelt reacted by saying that the expression “worthy of the dignity of the human being” was not clear, as each country would interpret it in a different way. mr. pavlov responded to it by reminding a memorandum of the president of the united states to congress, which dealt with the matter related to young people living in slums. mr. pavlov sustained that the expression was clear “human beings should not live like animals; they should not be forced to live in shacks, hovels or caves67”. the paragraphs of the ussr proposal were put to vote. paragraph 2 “everyone has the right to medical care and physician`s help in case of sickness” was rejected by 7 votes to 4, with 2 abstentions. paragraph 3 “everyone has the right to housing worthy of the dignity of the human being” and the first paragraph were also rejected. the only part that was approved was the last paragraph: “the state and community should take all necessary measures, including legislative ones, to insure for every person real possibilities of enjoying all these rights”. it was time for the ilo proposal to be considered, with the amendments made by the chinese and the united kingdom representatives. mr. wilson from the united kingdom proposed a separate vote for the rights to food and clothing. mr. chang from china responded to it by saying that he “did not see what possible objection there could be to that phrase when millions of people throughout the word were deprived of food and clothing.” morsink68 points out that if it were not for the interference of mr. chang, the rights to food and to clothing would have been completely forgotten and not included in the declaration. in fact, the delegation of china defended the inclusion of these rights until the end, emphasising that the expression “standard of living” was not clear and it was necessary to make references to the factors that make this standard adequate, that is to say, the rights to food and clothing. mr. roosevelt then suggested that after “standard of living” were included “food and lodging, housing and medical care”. mr. chang approved that proposal. afterwards, there was a vote to decide whether the words “food and clothing” should be included. the results were in favour of the inclusion of these words by 11 votes to 3. the chinese amendment was adopted by 12 votes to none, with 2 abstentions. the ilo proposal was adopted with its amendments by 8 votes to none, with 6 abstentions. the article now included “food, clothing, housing, medical care and social services”. article 25 now read “everyone has the right to a standard of living adequate for the health 66 united nations, economic and social council (1948): commission on human rights, third session, summary record of the seventy-first meeting, doc. e/cn.4/sr.71. 67 united nations, economic and social council (1948): commission on human rights, third session, summary record of the seventy-first meeting, doc. e/cn.4/sr.71. 68 morsink, johannes (1999): the universal declaration of human rights origins, drafting, and intent, philadelphia, university of pensylvania press, p. 197. germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 57 and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. motherhood and childhood are entitled to special care and assistance. all children, whether born in or out of wedlock, shall enjoy the same social protection.” all these debates show that the recognition of economic and social rights in the universal declaration was by no means an easy task. humphrey69 affirms that, had it not been for his choice to include these rights in the very first draft, probably they would have been completed excluded. in fact, the debates around the right to an adequate standard of living show that the more abstract was the article the better. if it were not for the pressure made by some governments, such as china and the urss, article 25 would not be the way it is now. vi. final considerations the atrocities committed in the second world war made the international community realize the need for human rights standards to avoid suffering and injustice. this process was by no means without controverses. since the formulation of the united nations charter, states hesitated in recognizing the importance of human rights, especially economic and social rights. the tendency was to deny these rights, as they were considered rights from second category. the debates around the inclusion of the right to an adequate standard of living in the universal declaration in 1948 corroborate this tendency. until the very end there was much resistence whether this right should be included or not. furthermore, when discussing about transforming the declaration into a binding document, the international community decided to elaborate two covenants instead of one: the intenational covenant on civil and political rights and the international covenant on economic, social and cultural rights. this choice also reflect the mentality still defended by some governments, that these rights generate different obligations. in a world where millions of individuals still lack access of basic services, such as water and sanitation, it is impossible to keep this mentality. it is high time this vision changed, as without economic and social rights one cannot survive, let alone decently live and enjoy his civil and political rights. only with the effective realization of economic and social rights will people be able to develop its capabilities and lead a decent life. 69 humphrey, john (1984): human rights and the united nations: a great adventure, new york, transnational publishers, p. 82. the long road to the international recognition of economic and social rights: the right to an adequate standard of living the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 58 vii. references añón, maría josé (2003): “el derecho a no padecer hambre y el derecho a la alimentación adecuada, dos caras de una misma moneda”, in abramovich, victor, m. j. añón and christian courtis (eds.): derechos sociales instrucciones de uso, mexico df: doctrina jurídica contemporánea. benoît-rohmer, florence (2009): “france: the origins, with the prospect of increasing effect”, 60 years of the universal declaration of human rights in europe, oxford, intersentia de schutter, olivier (2014): international human rights law, cambridge, cambridge university press eide, asbjørn (2010): freedom from need
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(2013): the universal declaration of human rights – the travaux préparatoires, cambridge, cambridge university press. sohn, louis b. and thomas buergenthal (1973): the united nations as protector of germana aguiar ribeiro do nascimento the age of human rights journal, 11 (december 2018) pp. 43-60 issn: 2340-9592 doi: 10.17561/tahrj.n11.3 59 human rights, new york, contemporary legal education series ssenyonjo, manisuli (2011): economic, social and cultural rights, surrey, ashgate publishing company. sudre, frédéric (2008): droit européen et international des droits de l´homme, paris, presses universitaires de france wells, h. g. 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http://cdn.un.org/unyearbook/yun/chapter_pdf/194647yun/1946-47_p1_sec1.pdf the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 42 legal protection of the rights of older persons against ageism m. pilar munuera gómez1 m. elena blanco larrieux2 abstract: human beings go through stages of vulnerability during their evolution and development. old age is one of these. the rights of older persons are acknowledged to a certain degree but have not yet been developed into an integral system like the rights of other groups, for instance the handicapped, have. spanish legislation contemplates the rights of older persons to guarantee their social protection. the objective of this paper is to reveal the need of a single unified law to guarantee these rights. for this purpose, existing spanish legislation has been reviewed, finding the underlying principles of this protection is based in the 1948 universal declaration of human rights. in current times older persons have ceased to be respected by their age and social position and sometimes find themselves socially excluded or legally unprotected. this circumstance claims a solution to avoid illtreatment. it calls for an institutional solution: the drafting of a charter of rights of the older person which would avoid behaviours that disregard this group, harming their dignity as individuals. it is difficult for older persons to gain respect for their participation as citizens because their social conditions are not equal to that of the rest of citizens who are allowed to make their rights effective and thus ensure their respect. keywords: ageism; rights; individuals; older persons; needs; protection; citizens. i. introduction discrimination based on age is reflected in society´s attitude in all contexts of daily life. this situation has generated social and legal vulnerability and therefore calls for the response of institutions to address the recognition of older persons rights. currently they are seen as a burden; this view makes older persons feel less valued and as a result they are more prone to depression and social isolation. at present, the separation between subject and object in a capitalist system leads to the invisibility of those agents considered non productive economically, as is the case of older persons (riesco, 2016:100). the recognition of the rights of older persons is coherent with existing protection of the elderly and can be situated within the scope of international human rights. this recognition implies the respect of the needs each person has to fulfill its 1 professor, faculty of social work, universidad complutense de madrid, spain (pmunuera@ucm.es). 2 doctor in law and social sciences, university of the republic, uruguay (mariaelenablancolarrieux@gmail.com). m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 43 development (bondía, 2013). governments must satisfy these rights. the right to the protection of old age is based in the european constitutions of the early 19th century. the weimar constitution, of 11 november 1919, stands out as a reference to other later constitutions both in europe and in america, for having developed a strong social philosophy proposing the recognition of social rights which the state had to attend to, including health protection throughout the person´s life and particularly at times of major weakness (lópez, 2010:234). article 161 states: “in order to attend to the conservation of health and capacity to work, to the protection of motherhood and of economic consequences of old age, sickness and life´s downturns the empire will create an ample system of insurance with the participation of the interested parties” (art. 161). in this sense it is noteworthy that in 1919 social protection of health by the state was focussed on the weakest social groups, amongst which were the elderly and the workers, based on the social democratic idea that the integral development of the human being recquires that an organized society and the state act positively to create the conditions necessary to achieve these rights (abreu & abreu, 2009). similar ideas can be found in the preamble of the 1946 french constitution. in its eleventh point, this document guarantees all but particularly children, mothers and retired workers, health protection and the right to rest and recreation. article 32 of the italian constitution of 1947 states: “the republic protects health as a basic right of the person and as a basic interest of the community and assures free health care for the needy. no one will be forced to undergo medical treatment unless the law demands it. the law will in no case violate the limits of the respect of the person” (art. 32) later on, the recognition of civil and political rights increases until it reaches the most significant and recent documents as is the case of the 1948 universal declaration of human rights (paris, december 10th, 1948) which states in article 25.1: “everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. some of the rights that are guaranteed in this declaration have not been put into practice. their inclusion has not meant in all cases, their fulfillment (lema, 2012: 35-36). human rights are defined as a legal and axiological system which represents the fundamental values of the human being, from the point of view of the western civilization (villasmil & chirinos, 2016: 197). after an extensive working life and ensuring the welfare of their families, older persons deserve to be treated with utmost respect and consideration by the rest of the population. as we age, every person has to be respected, and consideration has to be made of the multiple contributions: by way of legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 44 direct participation in the workforce (either formal or informal), payment of taxes, consumption of goods, transfers of money, teaching to younger generations as well as numerous other less tangible contributions that citizens make within their families and communities (oms, 2015). the concept of older pesons as subjects of law is part of a wider context of theoretical and political analysis refereed to the acknowledgement of rights to certain disadvantaged groups (huenchaun & morlachetti, 2006: 50). social protection of the older persons may be one of the criteria used to indicate the degree of social welfare. the improvement of recognition of older persons´s rights may be achieved by making good use of available information and communications technologies (ict) which allow different methods of decision making and participation3. it is necessary to face the deep causes of inequality, and guarantee that all generations have equal access to health and social welfare as well as to continuous education and all opportunities which result in contributions to sustainable growth. in the local context we tend to divide reality in order to study its essence. in some cases this method is not helpful, because the result is that the investigator loses sight of the basic premise, which is the integral respect of the inherent rights of human beings. the absence of legislation regarding the recognition of the rights of older persons favours lack of protection of such rights. in the international sphere several initiatives have been presented resulting in the united nations declaration of rights of older persons. the first proposal for a declaration of rights of the older person was made in argentina in 1948 but did not go forward, in 1991 there is another attempt by the international federation of old age and the dominican republic presents its proposal, declaration of rights and duties of the older person, which constituted the basis of the united nations principles in favour of older persons, adopted by the general assembly in 1991. in 1999 during the international year of the older persons, the american association of retired persons proposed a charter for a society for people of all ages before the united natinos, but it wasn´t adopted either. the interamerican convention for the protection of the rights of the older person constitutes a binding treaty which aims to protect and promote the rights of the older person.4 the 1948 universal declaration of human rights was the first legal document to protect human rights. together with the international covenant on civil and political rights and the international covenant on economic, social and cultural rights these three documents constitute the international charter on human rights. other 3 the department of employment and social policies of the basque government has created 'gobernantza+65'; this process has the objective of an initiative of generating a debate about the model of representation older persons could take in social and political decision making taking into account their knowledge, needs and interests. another example is the platform which defends older persons´rights:http://publications.age-platform.eu/index.php 4 information available at: http://www.ohchr.org/sp/issues/pages/listofissues.aspx m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 45 international treaties have increased international human rights legislation since 1948. until now there have been several proposals regarding the protection of older persons such as the united nations principles for older persons, the international plan of action on ageing, adopted by the world assembly on ageing and endorsed by the general assembly in its resolution 37/51 of 3 december 1982, the declaration of rights of older persons or the charter on rights of older persons drawn up by the european federation for older persons (eurag). there are other firm initiatives in the united kingdom, ireland or belgium; for different reasons these documents either have not been finished or the joint proposal by the countries has not been presented. at present, there are different proposals which recognize the rights of older persons, which have evolved in the last decades in scattered and fragmented fashion. this makes it difficult to consolidate the rights of older persons and limits the capacity of un member states and of the international community as a whole to grant the special protection that older persons need in order to fully enjoy their fundamental human rights as other sectors of society do. in the majority of existing legal instruments age is nos included as a possible cause of discrimination (un, general assembly, 2009:7). the protection of rights of older persons has been included due to the broad interpretation that has been made by the supervising organs (huenchuan, 2013). in 1995 the committee on economic, social and cultural rights (cescr) approved its general observation no. 6, regarding the economic, social and cultural rights of older persons. this committee has increased the rights established in the covenant through its general observation no. 14, regarding the right to enjoy the highest attainable standard of health (article 12, year 2000); observation no. 19, regarding the right to social security (article 9, year 2008) and observation no. 20, regarding non discrimination in economic, social and cultural rights (article 2, 2009) (huenchuan, 2013). ii. ageism. social discrimination based on age dr. robert n. butler in 1969, coined the term ageism and defined it as a prejudice and discrimination against members of a group, in this case against the elderly or older persons (butler, 1969). ageism has been identified as the third greatest form of discrimination in our society, after racism and sexism (losada, 2018). barranco states: “according to the reflection stated above, vulnerability depends on a personal condition shared by the members of a group. the identification of a group as vulnerable based on this concept permits justifying a differentiated treatment which is directed, mainly, to the protection of the members, and adopts an almost exclusive perspective of standardization” (barranco, 2015: 33). age is therefore a social construction by means of which we define what is “appropriate” for every age or every stage of the life of human beings. social legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 46 discrimination by age must be revised since chronological age does not determine the person´s capacity or autonomy. being old or elderly has been related wtih physical incapacity, with loss of mental capacity, weakness, dependency, isolation, loss of social and economic status and a long list of etceteras which constitute stereotypes that do not necessarily apply nowadays to a vast number of people from 65 to 80 years of age. results of the world values survey, analysed by the world health organization (who, 2016) collecting data from over 83,000 people from 57 countries, reflect that over 60% of respondents believe that older persons are not treated with the respect owed to them. this is reported as a generalized problem in high income countries where the degree of respect for this age group is even lower. at present retirement age is set at 65, but that doesn´t mean that people at that age find themselves in situations of dependency or rather the opposite, most people at that age still retain full capacity to make their decisions and to participate in society. because of this, public policy must be directed towards the construction of egalitarian societies inclusive of people of all ages. it would reflect an evolution with respect to the present paradigm of intervention in the older people age group which considers age only as a demographic, financial and sanitary consequence of the ageing population. the social situation of the elderly and the culture associated with it require that all agents get together in constructing and making the new paradigm a reality by acknowledging human rights of this group. one of the most extensive principles is equality, so one of the most widespread rights is non discrimination based on age. at a legal level this is accepted. however in daily life old age persons undergo situations of physical, family or social abuse through constant examples of inequality which reveal an ageist society. old persons´ human rights are in constant danger of being overlooked. the intention is to look at their reality from the perspective of “the right to hold rights”. discrimination based on age derives from the historical and social perspective regarding the roles, identities and values commonly attributed to older persons which are learned in the process of socialization. nowadays an asymmetrical relationship of domination and subordination has been forged where the older person loses the right to decide. the goal is that the older person regains power in its widest sense: the power to chose, the power to create, the power to know, the power to learn, the power to enjoy, be chosen etc. the perspective where old age is considered a human rights matter contributes to create awareness that different capacities are a vital fact in human beings where older persons must be included in order to prevent that ageism, one of the worse forms of discrimination, becomes widespread without even being recognized or identified. the recognition of older persons´ human rights calls above all, for a change of paradigm to overcome the association between old age and loss, to place older persons as subjects of rights and not only as benefitiaries, which implies empowerment of this m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 47 group and a more integrated society. the fundamental principle is the recognition of the older persons´ full citizenship, meaning not only the recognition of their rights but also of their dignity, autonomy, decision making, privacy and the improvement of communication based on care aiming at a more humane assistance (bárcena et al, 2009) iii. rights of older persons throughout history due to their condition as human beings, older persons are potrected by binding human rights legislation. older persons´ homes must contemplate said legislation. being included in the category of dependent population their rights are therefore recognized by the 1948 universal declaration of human rights which states that: “all are equal before the law and are entitled without any discrimination to equal protection of the law. all are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination” (article 7). the rights of older persons may be recognized in other international instruments such as the international covenant on civil and political rights, the international covenant on economic, social and cultural rights, the american declaration of the rights and duties of man, the american convention on human rights as well as its additional protocol regarding economic, social and cultural rights (from here on san salvador protocol), the asia-pacific forum of national human rights institutions5, etc. the vienna international plan of action on ageing (1982) states the guidelines to be followed by eu member states with respect to policies regarding prevention and health care of the older person. general comment nº 6 was adopted by the comittee on economic, social and cultural rights and is considered one of the main standards regarding human rights and liberties for older persons6. in the madrid international plan of action on ageing (2002) the first definitions of the rights of older persons are set up and an initial plan for their safeguard is designed. this document contains a declaration of rights regarding non discrimination based on age, also regarding the dignity of older persons and the ability of the elderly to contibute in society. in this declaration there is a plea for a change in attitudes, policies and practices so that older persons can achieve their maximum development and potential7. 5 this organization has called attention as to vulnerability of older persons and the ill treatment at institutional level due to its “systemic rather than individual nature” claiming a joint response on the part of all institutions.information is available at: open-ended working group on ageing for the purpose of strengthening the protection of the human rights of older persons: general assembly resolution 65/182. new york: united nations; 2011 (http://social.un.org/ageing-working-group/ documents/chair_summary_2nd_session_oewg_final.pdf, accessed 4 june 2015). 6 this document makes reference to specific rights, such as employment, social security, protection of the family, adequate standard of living, physical and mental health, education and culture. 7 toronto, 17th november 2002, sponsored by the government of ontario (canadá), designed by a group of experts. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 48 the 2002 toronto declaration on the global prevention of elder abuse calls for action so that countries activate the necessary mechanisms (health, social, legal etc.) to respond to this problem through prevention and ultimately, attention. the charter of rights and responsibilities of older people in need of long term care and attention (2010)8, recognizes the following: right to dignity, to physical and mental wellbeing, to liberty and security; right to decide; right of privacy; right to quality care; right to information and specialized advice and to informed consent; right to continued communication and participation in society and in cultural activities; right to freedom of expression and to freedom of thought: convictions, culture and religion; right to palliative care and to the respect and dignity in agony and at the time of death; right to lodge an appeal and subsequent responsabilities. these rights have to be recognized and respected by society at the same time that older persons have to be aware of the existing mechanisms that are available to them so they can make these rights effective. older persons have to be able to participate actively in the development of legislation, plans, health policies, services, etc. with the objective that their needs are met. in spite of such an extensive body of documents, declarations and charters regarding the rights of older persons, there still is no single binding document as has been achieved for other social groups like women, children or handicapped. doctrine and jurisprudence in the various committees have an important pending task to advance in the understanding of the rights of older persons (huenchuan, 2009:27). different measures elaborated by the council of europe 9 are related to the protection of older persons in our environment. amognst these, the council points firstly to recommendation nº (98) 9 from the committee of ministers to member states on dependence (adopted by the committee of ministers the 18th of september, 1998, at the 641 g reunion of delegates of ministers) which establishes: -the coverage of the risk of dependency is an integral part of any system of social protection; 8 with the participation of ede (european association for directors of residential homes for the elderly/associación europea de directores de centros residenciales para las personas mayores); anbo (holland); biva(germany); communede st. josse (belgium); fng (fondation nationale de gérontologie (france); fipac(italy); 50+hellas (greece); mzu (slovenia); niace (united kingdom); spf-asociación sueca de los ciudadanos seniors (sweden) y zivot90 (czech republic), with the support of the european programme daphene iii. 9 the council of europe has passed further legislation regarding these mandates amongst which: -recommendation n r (87) 22, council of ministers, regarding detection and attention of older persons -recommendation n r (90) 22, council of ministers regarding the protection of mental health of certain vulnerable groups -recommendation n r (91) 2, council of ministers, regarding social securtiy of workers who have no special protection (as carers, relatives or volunteers who care for older persons in their home) -recommendation n r (92) 6, council of ministers regarding a coherent policy for handicapped persons, -recommendation n r (84) 24, council of ministers, regarding contribuition of social security towards preventive measures. m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 49 -public powers have to guarantee the quality of the care given; -the adequate training of the care givers offers the necessary competence to fulfill the task effectively; -it is necessary to strengthen the social protection of care givers; -appropriate help for care givers reduces the burden of their task; member states are recommended to: -ensure public awareness of the problem of dependence as it is presented in this recommendation; -direct policy measures in this field according to the principles set (below); -ensure that their legislation takes account of the general principles and measures in this recommendation and if new legislation is introduced, adopt provisions that are in line with these the council adopts an outlook which takes older persons into account, as evidenced in their publications, for instance the general recomendation by the special relator regarding torture; the directing principles for internally displaced; the directives on human rights issued for pharmaceutical companies in relation to access to medicine and the basic principles and directives regarding evictions and the displacement caused by development (cepal, 2010). however, none of these take a step towards a universal declaration or treaty, which recognizes the rights of older persons. we have to take into account that “from the international committees for the defense of human rights to the valuable work regarding constitutional jurisdiction” (cascajo, 1998:35) enough legal work has been produced for its defense; what is lacking is its consolidation within the population. iv. protection of older persons in spain the spanish constitution (1978) recognizes some of the rights of the elderly: 1. articles 14 and 15, deal with the obligation of care that public institutions have towards older persons as well as guaranteeing their access to resources 2. article 18: all information regarding individual older persons must be treated with confidentiality, respecting the honour, privacy and image of the elderly. public administrations must promote a positive image of the elederly in the media, including advertisements10. 3. article 50: the public sector will guarantee that citizens have sufficient economic resources during their old age through reasonable and regularly updated pensions. regardless of the obligations of their family members, the government will promote their wellbeing through a system of social services 10 it continues to state the “legal protection of this right will mean public administrations will inform the judiciary of any known actions contrary to these rights, exercising if necessary, civil or criminal actions available”, but until now no legislation has included this consideration. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 50 which will address their specific problems of health, housing, culture and leisure. for older persons who are in situations of functional dependeny, such as people with diverse disabilities (intelectual, physical, sensory, psychiatric), of varied ages, not only dependent older persons whose situations can be worse due to clinical, pharmacological, social, economic and political elements (munuera & alemán, 2016). for the benefit of these dependent persons in view of this, various spanish autonomous communities have passed laws which deal with the principles and recognition of the social rights inherent to people in situations of dependence11 (law 39/2006, 14 december 2006, law on dependence12), most of who find themselves in such situation due to their age. iv.1. law 39/2006 law on promotion of personal autonomy and attention to persons in situations of dependency (lpad). the objective of this law is to regulate the basic conditions that will guarantee equality in the effective exercise of citizenship of those people who are in situations of dependence. in it, autonomy is defined as the capacity to control, face and make personal decisions on how to live and act in daily life (article 2). this definition has not translated into practical measures, which may explain why this law is known as dependence law. in its application, the priority of its objectives has been altered, autonomy having taken a second place. this law proposes that people in situations of dependence may “acquire a greater personal autonomy as well as exercise their citizenship rights fully”. the expression refers to autonomy as an intellectual quality, an abstract ability to decide about ones´ own life which deals more with self determination and the right to decide (goñi, 2009). amongst the purposes of this law is the regulation of the basic conditions needed to promote personal autonomy and the attention of people in situation of dependence by creating a system for the autonomy and attention of dependants (saad), with the collaboration and participation of the public sector. the biggest change this law introduced compared with previous legislation, was to consider the subjective right over the various benefits listed in article 1.1 (alemán et al. 2013). in this way the subjective right was based on the principles of universality, equality and 11 intrinsic personal rights are protected by law 1/1982 5 may: protection of the right to honour and personal privacy and own image by law 15/1999 regarding the protection of personal data; also hay que añadir la garantía de confidencialidad de los datos personales regulada en la law 15/1999, passed 13 december, guarantees the confidentiality of personal data. furthermore more measures have been taken to update management of assets as is the european rules of inheritance or the reverse mortgage which also aims to facilitate management of asset as well as helping update the system of justice. the underlying principle being the empowerment of the older person (imserso 2010). 12 gobierno de españa published in the official state bulletin (boe) 15/12/2006. m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 51 accessibility, developing a model of integral attention for the citizen. this law was a step forward regarding social protection by recognizing a basic set of subjective rights for all citizens. legistative treatment 13 regarding attention of the dependent population has advanced considerably during the last years14. the object of current legislation is to define how to determine the economic capacity of beneficiaries and to set up their basic participation in the benefits provided by the system. local administrations may always improve conditions. in the social service laws passed by the different spanish autonomous communities priority is given to the promotion of all benefits that allow dependent individuals to maintain their normal life habits. when it is not possible to provide care benefits in the normal habitat, residential attention will be provided. each autonomous community is thus making the necessary changes so that benefits can be awarded taking into consideration the specific conditions and adapting them in terms of intensity, specialization, diversification and extension of the benefits. therefore these laws also take into account the evaluation of the persons´needs. the criteria used are: a) degree of dependence b) areas of dependence c) stability or instability of the situation dependent people have a right to an individual intervention program (pia)15 which is defined and designed with the knowledge and participation of the beneficiary or his/her legal representative. they are also entitled to the protection of their image as well as privilege, protection of personal data, participatation in activities that take place in the centre or service –where benefits are received–, to make claims and suggestions, to personal information contained in their files, to know the price of the services that will be provided and in general all the information they require as benefitiaries (de la cámara, 2003). the aim is none other than to establish the benefits that are more suited 13 autonomic legislation has been widely developed but not in a uniform pattern, following the mínimum criteria set by the interregional council for the determination of the financial capacity of the benefitiary. resolution dated 2 december 2008 (secretary of state of social policy, families and attention to dependency and incapacity) which publishes the agreement of the territorial council of the system for the autonomy and attention to dependency), determining the financial capacity of the benefitiary and other criteria for participation in the financial benefits available in the system. 14 the interest of this resolution lies not only in the critieria set forth but also in the possibility that autonomic regions have to improve the conditions or determine more favourable situactions for the benefit of the population. thus, “article 8.2.d), law 39/2006, 14 december, states that the territorial council of the system for the autonmy and attention to dependency must adopt the criteria for the participation of the benefitiary in the cost of services as well as for the determining the amount of financial benefits. article 33 states that the financial capacity of the benefitiary will be taken into account to determine the possible contribution of the benefitiary towards the cost of the services and for the determination of the amount of financial benefit to be received. finally, article 14.7 states that the financial capacity of the benefitiary will be deteremined as stated by law under the proposal of the territorial council of saad. 15 it is the main document where all personal information is recorded, as well as recommendations so the person may achieve the greatest degree of self management possible in their daily life.. it has to be a dinamic and a result of interprofesional work. it is a roadmap and the older person participates in its drafting. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 52 to each individual as well as defining access to said benefits. when freedom to choose is not possible due to incapacity of the benefitiary, social services have to ensure their legal protection (alemán et al., 2013). on december 31st, 2011, the system of aid in dependency (sistema de ayuda a la dependencia) had 738.587 beneficiaries. a year later there were 751.551 benefitiaries: an increase of 12.964 people or 1.75% in one year. by 2013 (31st december) the increase is of 15.255 beneficiaries. if we compare the figures of december 31st, 2011 (738.587) with those of march 2017, the net increase is of 139.621 benefitiaries (totalling 878.208i people). the following graph shows the type of benefits received. currently the most demanded benefit is the economic compensation for family care, which 367.402 benefitiaries get. an interesting fact is that few people benefit from personal assitants; it is in the basque country where the highest numbers are found (5.506) as results from the following table: m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 53 table 1. benefitiaries receiving benefits. imserso march-2017 benefitiaries and benefits received geographical region benefitia ries receivin g benefits prevention, dependency and personal care remote assistance home care day/night care centres homes service related financial aid family care with financial aid personal assitant with financial aid total ratio between benefit and benefitia ries nº nº % nº % nº % nº % nº % nº % nº % nº % nº % nº andalucía 184.895 856 0,36 76.206 32,15 50.881 21,46 13.191 5,56 23.182 9,78 3.132 1,32 69.598 29,36 9 0,00 237.055 100,00 1,28 aragón 22.055 2.121 8,79 220 0,91 1.283 5,32 1.402 5,81 3.725 15,44 4.577 18,98 10.790 44,74 0 0,00 24.118 100,00 1,09 asturias (principado de) 20.440 5.612 21,47 937 3,59 3.508 13,42 2.250 8,61 2.967 11,35 2.322 8,89 8.535 32,66 2 0,01 26.133 100,00 1,28 illes balears 15.319 185 1,18 260 1,66 434 2,77 1.030 6,57 2.220 14,17 784 5,00 10.757 68,65 0 0,00 15.670 100,00 1,02 canarias 16.439 32 0,19 630 3,72 23 0,14 3.551 20,95 3.365 19,85 2.438 14,38 6.911 40,77 0 0,00 16.950 100,00 1,03 cantabria 14.855 0 0,00 1.224 7,41 962 5,82 1.699 10,28 4.266 25,81 0 0,00 8.375 50,68 0 0,00 16.526 100,00 1,11 castilla y león 85.055 12.500 11,57 8.320 7,70 22.274 20,62 8.276 7,66 8.286 7,67 24.315 22,51 23.744 21,98 321 0,30 108.036 100,00 1,27 castilla-la mancha 43.119 4.236 7,94 6.463 12,11 11.198 20,99 2.919 5,47 11.254 21,09 3.923 7,35 13.352 25,02 11 0,02 53.356 100,00 1,24 catalunya 131.905 1.153 0,70 16.529 9,98 22.672 13,69 10.731 6,48 26.047 15,73 10.175 6,15 78.261 47,26 13 0,01 165.581 100,00 1,26 comunitat valenciana 52.740 498 0,88 4.221 7,46 0 0,00 6.439 11,37 10.317 18,22 6.278 11,09 28.855 50,97 6 0,01 56.614 100,00 1,07 extremadura 24.497 1.056 3,91 1.692 6,27 729 2,70 1.741 6,45 4.398 16,30 10.435 38,68 6.927 25,68 0 0,00 26.978 100,00 1,10 galicia 48.425 3.319 6,10 2.670 4,90 16.425 30,17 6.790 12,47 7.558 13,88 4.930 9,06 12.665 23,26 87 0,16 54.444 100,00 1,12 madrid (comunidad de) 108.734 2.897 2,03 33.539 23,45 31.920 22,32 15.219 10,64 22.681 15,86 12.596 8,81 24.104 16,85 69 0,05 143.025 100,00 1,32 murcia ( región de) 32.133 3.584 8,91 5.251 13,05 219 0,54 3.521 8,75 4.175 10,38 1.892 4,70 21.595 53,67 0 0,00 40.237 100,00 1,25 navarra (comunidad foral de) 10.212 188 1,49 1.397 11,07 828 6,56 276 2,19 1.839 14,57 1.076 8,53 7.014 55,58 2 0,02 12.620 100,00 1,24 país vasco 57.358 149 0,21 6.168 8,63 6.657 9,31 6.932 9,69 12.383 17,32 1.483 2,07 32.233 45,07 5.506 7,70 71.511 100,00 1,25 la rioja 7.460 888 8,47 2.210 21,09 1.968 18,78 885 8,45 1.404 13,40 841 8,03 2.283 21,79 0 0,00 10.479 100,00 1,40 ceuta y melilla 2.567 423 12,29 583 16,94 765 22,23 65 1,89 199 5,78 3 0,09 1.403 40,77 0 0,00 3.441 100,00 1,34 total 878.208 39.697 3,67 168.520 15,56 172.746 15,95 86.917 8,03 150.266 13,88 91.200 8,42 367.402 33,93 6.026 0,56 1.082.774 100,00 1,23 legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 54 amongst the dependent population there are more elderly persons than people from other population groups; the reasons for their dependency are varied amongst which are old age, accidents, diminishing faculties, chronic illness etc. the demographic significance of dependence can even be estimated as the relation between those who are eligible (by age) to work and those who are not. more concretely, old age dependency is calculated by dividing the number of those over 64 years of age by those who are old enough to work. this relation is changing as there are increasingly more unemployed for every employed person (…), or more unemployed than working, rising number of how many receive benefits compared to those who make their social security contributions. problems can be predicted from the way these relationships develop (pérez díaz, 2010:25). nowadays older persons are defined as dependents, creating an image of needing help, an image related to the deterioration of the body the older person inhabits. with this simplistic imagery other dimensions of ageing are ignored (existential, psychological and social), which are the basis of the processes and relationships between individuals and amongst human groups. thus the problem of the place older people occupy in society is hidden as is the role that social policies have to play in guaranteeing their rights as citizens, the enjoyment of their surroundings and in general a social organization which is adapted to their specific needs (garcía, rabadán y sánchez, 2006:37). from the sociological point of view, satisfactory ageing may be understood as a concept that goes beyond the definition of the person as a psychological or biological being, and places emphasis on the social collective (bazo, 2011:23) the concept of depence is not univocal but complex, ambivalent, and is the result of various social causes, individual, social, institutional which manifest in varied ways. thus, the dependent person will be so not just because of individual or medical reasons but also as a result of limitations which many times are imposed by society (asís & palacios, 2008: 24). older persons should be able to bring take decisions safely within their families and a nurturing social environment (armadans, codina & pestana, 2016). the second world assembly on ageing´s target is that anyone regardless of where they may be, may age with security and dignity and that older persons can continue participating in their communities making use of their complete range of rights (leturia & etxaniz, 2009:17). v. initiatives developed in relation to the rights of older persons in spain there have been different institutional and legislative initiatives. barcelona city council has developed the open document of the rights and liberties of dependent older persons, authored by barcelona city council16 in collaboration with17 the council of older persons in 200318. this process led to the presentation of the 16 information available at: http://w110.bcn.cat/portal/site/consellassessorgentgran?lang=es_es 17 amongst these documents was the charter of rights and liberties of the dependent older person, ministére de l´ emplor et de la solidarité y la fondation nacionale de gérontologie, france. 18 1. right to own decision, including expressing own wishes and choice of activities, and to be recognized as full citizens throughout their old age, m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 55 ¨guideliness for action regarding older persons. proposals and measures to ensure older persons can exercise their rights”, in october 2015. in 2011 a revised text, submitted to wide spheres of participation, maintains some of the earlier rights recognized such as access, services, early attention, but also includes the idea of rights and responsibilities of older persons in maintaing their state of health and avoiding dependence. at the end, the text states that all administrations must respect these rights and adopt the necessary measures in all fields that are within the jurisdiction of the city of barcelona. dependence law (law 39/2006) dated december 14, 2006 reinstates the rights of dependent citizens as subjective rights existing at state level. this law recognizes the subjective right of dependents and in article 4 states the rights and obligations of all citizens in situations of dependence. at state level two laws stand out in the acknowledgment of the rights of older persons and their protection: andalucía law on attention and protection of older persons, law 6/1999 (7 july, 1999), published in boe 29/09/1999), and the law on attention and protection of older persons of castilla y león (law 5/2003, 3rd april 2003). the law of andalucía aims to promote the quality of life and the protection of older persons over 65 years of age; it acknowledges the rights of older persons. the law of castilla y león includes the following rights: the right to equality, physical, moral and mental integrity; honour, privacy and personal image; freedom of thought, religion and worship; information and expression; the right of participation and association; the right to culture, leisure and sport, the right to adequate housing; legal protection and the right to financial protection which permits their personal autonomy. other local laws protect the rights of older persons in care, amongst which is law of assistance and protection of the older person, law 7/1991, passed in asturias, on april 5th, 1991. the anlaysis of these documents shows the relevance the respect of rights of older persons must have and which society needs to guarantee. 2. right to sufficient income, as well as to management of own assets 3. right to adequate legal protection, both of the person and of their goods, especially the mentally impaired 4. right to early diagnose and access to adequate medical attention 5. right to take part in decisions regarding care received and alternative places of residence 6. right to chose the place of residence, be it in the person´s home or community while possible or in a care institution 7. right to be protected from any form of abuse or violence 8. right to recieve adequate attention in line with the dependency in a care home where all needs (social, sensory, psychological…) are taken care of 9. right to nearby services of the quality needed by the person. 10. right of the dependent older person to receive care by adequately trained personnel 11. right to actions for prevention of dependency during the lifetime 12. right to maintain family and friend relationships of the carers of dependent older persons 13. right of information, awareness of society as to the difficulties dependent older persons face 14. assurance that all administrations take into account the rights that this document recognizes and take appropriate measures to make them effective right to a document which strengthens the exercise of the rights of the older person following the directives on active ageing and generational solidarity agreed in brussels 2012. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 56 iv. legal protection of the older person. people in care. care homes or residential habitats where there is a certain amount of control or restriction on exits is regulated by article 763 of law 1/2000 (7th january 2000) which states that when a person is unable to decide due to psychological reasons, whether to stay at home or internment, judicial authorization will be recquired. the judge of the jurisdiction where the person resides will be competent, not taking into account if the person is under the care of parents or tutors. the authorization will be given before admittance into care, except in cases of emergency. previously parents used to be admitted into a closed institution based on the decision of their children or care takers. this has been changed to comply with the constitutional mandate that “no one can be deprived of their liberty except as stipulated by law” (article 17). another matter for discussion is the use of retainers, considering both physical restraints or chemical ones (drugs). the intention of not running undue risks with older persons who are affected by certain pathologies may lead to extreme measures which limit their liberty. these situations have to be examined closely and alternative solutions found. a greater awareness on legal institutions related to incapacity and care of older persons and a better knowledge of what these entail would reinforce demands of better regulation on behalf of older persons which would greatly benefit all actors: legislators, judges, attorneys and older persons themselves because this would imply the effective recognition of their residual abilities without delay, avoiding the drastic connotations that declarations of incapacity entail. there must be a clear reference regarding the role of the family in the care of older persons. within this framework it is our task to update important features of this topic in coming years, particularly the challenge of adapting legal institutions to ensure the rights of fragile citizens, especially those affected with cognitive deficiencies who may need to be placed in care. in this sense significant changes are taking place both nationally and internationally. a framework of integral attention of older persons requires their active participation and informed decision making regarding their health and welfare, a perspective which is also fundamental for person centered health care (oms, 2015:16). we must guarantee the participation of older persons in society, access to the use of services as well as voluntary cease of the use of these, participation in the management of the welfare system as well as the free association of the users for the defense of their interests (alemán et al., 2013). vii. conclusions necessary measures have to be taken to avoid the growing ageism reflected nowadays in society, which hinders participation of older persons. the recognition of human rights by means of national legislation could change the lives of older persons. budgetary provisions have to be made to accompany existing legislation so that financial and professional support can make it effective. m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 57 the rights of older persons must be guaranteed by means of a coordinated set of actions resulting from all sectors of society since these all play an important role with respect to older people. the protection of the rights of older persons will help to prevent social discrimination so that they may be treated with dignity. they are entitled to the respect of their rights as are all other members of society. legislation which supports the rights of older persons will allow them to make their own decisions in those matters which are relevant to their lives. it would also allow for the punishment of negligent behaviour against them as well as the correction of existing situations of illtreatment or abuse. the recognition of human rights can change peoples´ lives. the defense of the rights of older persons will help them lead their lives safely and with dignity as most other population groups are entitled to do. in spain several important laws dealing with this issue have been passed. but there is still no single comprehensive law on the subject. the legal framework can be improved. as citizens, older persons enjoy the maximum legal protection under the constitution in view of the more vulnerable situation they may find themselves in. article 50 specifically establishes both the adequacy of pensions and the establishment of a network of social services. rights recognized in different social services laws passed by the various autonomic communities containing specific measures for protecting older persons´ rights could be incorporated to protect also those in situations of dependence. 8. references abreu & abreu, j. c. (2009). derechos humanos, intereses difusos y medio ambiente: un problema jurídico insoslayable. vi congreso iberoamericano de academias de derecho. academia mexicana de jurisprudencia y legislación. disponible en: www.acj.org u.v. 24/11/2009 alemán, c. alonso, j.a. & fernández, p. (2013). dependencia y servicios sociales. 2ª edición. navarra: aranzadi. armadans, i. codina, n. & pestana, j.v. empowering senior citizens in leisure settings through mediation: becoming a mediator. educational gerontology, 2014, vol. 41(4), pp. 1-24. asís, r. de & palacios, a. (2007). derechos humanos y situaciones de dependencia. instituto de derechos humanos “bartolomé de las casas”. madrid: dykinson. bárcena calvo, c., iglesias guerra, j.a., galán andrés, m. i., & abella garcía, v. (2009). dependencia y edadismo. implicaciones para el cuidado. revista enfermería cyl. vol. 1 – nº 1, pp. 46-52 barranco aviles, m. c. (2015). human rights and vulnerability. examples of sexism and ageism. the age of human rights journal, 5 (december). pp. 29-49. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 58 bazo, m. t. teorías sobre vejez; en gómez, r. (dire.) (2011). salud, demografía en la población anciana. madrid: alianza. bondia garcía, d. (2013). la exigibilidad del derecho a la salud en situaciones de crisis sanitarias. en bonet pérez, j. y saura estapà, j. (eds.). el derecho internacional de los derechos humanos en períodos de crisis. estudios desde la perspectiva de su aplicabilidad. madrid: marcial pons. butler, r. (1969). ageism: another form of bigotry. the gerontologist, 9, pp. 243246. doi: https://doi.org/10.1093/geront/9.4_part_1.243 cascajo castro, j. l. concepto de derechos humanos y problemas actuales. derechos y libertades, 1993, nº 1, pp. 33-99. castro cid, benito de (1982), “el reconocimiento de los derechos humanos”. ed. tecnos. madrid. cepal (comisión económica para américa latina y el caribe) (2010). propuesta de estrategia para avanzar, desde la perspectiva de américa latina y el caribe, hacia una convención internacional sobre los derechos humanos de las personas de edad. cepal: santiago de chile. de la cámara, jj (2003). derechos de los usuarios de centros residenciales para mayores. madrid, aenor. garcía martínez, a., rabadán, j. a. y sánchez, a. mª (2006). dependencia y vejez. una aproximación al debate social. madrid: arán. huenchuan, s. (2009). envejecimiento, derechos humanos y políticas públicas. santiago de chile: cepal (2013). perspectivas globales sobre la protección de los derechos humanos de las personas mayores, 2007-2013. santiago de chile. cepal huenchuan, s., & morlachetti, a. (2006). análisis de los instrumentos internacionales y nacionales de derechos humanos de las personas mayores. notas de población, 81, 50-51. lema añón, c. (2012). apogeo y crisis de la ciudadanía de la salud: historia del derecho a la salud en el siglo xx. madrid: dykinson. leturia arrazola, f. j., etxaniz, n., (2009). los derechos de las personas mayores y la prevención del maltrato. vitoria: ararteko. lópez oliva, j. o. (2010). la constitución de weimar y los derechos sociales. la influencia en el contexto constitucional y legal colombiano a la luz de los derechos sociales asistenciales a la seguridad social en salud. prolegómenos. derechos y valores, vol. xiii (26), 233-243. losada baltar, a. edadismo: consecuencias de los estereotipos, del prejuicio y la discriminación en la atención a personas mayores. algunas pautas para la intervención. madrid: portal mayores, informes portal mayores. (http:// www.imsersomayo-res.csic.es/documentos/losadaedadismo-01.pdf). consultado el 11 enero 2018 munuera gómez, m. p. y alemán bracho, c. (2015). mediación y dependencia. accesibilidad universal. madrid: civitas. m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 59 oms (2015). informe mundial sobre el envejecimiento y la salud. ginebra (suiza): organización mundial de la salud (oms). pérez díaz, j. (2010). perspectivas demográficas en españa: efectos a largo plazo de la crisis. revista del ministerio de trabajo e inmigración. riesco vázquez, e. (2016). género y generación: influencia en la implicación política de los mayores en españa. rasp .research on ageing and social policy.vol. 4 nº 1 january. pp. 96-133. soulier, j.-p. (1997). morir con dignidad. una cuestión médica, una cuestión ética. madrid: edit. temas de hoy. ensayo. villasmil, j. & chirinos, l. m. (2016). reflexiones sobre derechos humanos, multiculturalidad y diálogo intercultural. opción nº. 79, pp. 197-216. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 60 appendix: rights recognized to older persons in different legal documents or declarations ri gt hs universal declaration of human rights (1948) spanish constitution (1978) rights and liberties of dependent older personsa (barcelona, 2011) law 39/2006, 14/12/06 promoting personal autonmy and care of dependent persons (lapad). art. 4 rights of the terminally ill patient li fe art. 3. everyone has the right to life, liberty and security of person. art. 12. no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. everyone has the right to the protection of the law against such interference or attacks. 10. right to maintenance of family and friendshipties and for relatives to receive adequate support a) enjoy fundamental with full respect of their dignity and privacy 1. to be treated as a human being till the end of their lives 6. maintain their values and not be discriminated against because their opinions differ from that of their care takers ac ce ss ib ili ty art. 13. 1. everyone has the right to freedom of movement and residence within the borders of each state. articles14 &15, regarding the obligation public insitutions have of taking care of older persons and guaranteeing their access to resources eq ua lit y art. 7. all are equal before the law and are entitled without any discrimination to equal protection of the law. all are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination. k) equality of opportunities, non discrimination and universal accesibility in any and all matters encompassed in this law l) non discrimination base don sexual orientation or identity. li be rt y art. 2. everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-selfgoverning or under any other limitation of sovereignty. 8. right to choose the place of residency, until that is possible and desirable and to enjoy quality services nearby when they are needed. h) to fully exercise their legal rights when residential care is not voluntary with all legal guarantees m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 61 pa rt ic ip at io n art. 21. 1. everyone has the right to take part in the government of his country, directly or through freely chosen representatives. art. 21. 2. everyone has the right to equal access to public service in his country. e) to participate in the drawing up and application of policies which affect their wellbeing, be it individually or through associations. ed uc ac at io n art. 26. 1. everyone has the right to education. education shall be free, at least in the elementary and fundamental stages. elementary education shall be compulsory. technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit em pl oy m en t art. 23. 1. everyone has the right to work, to free choice of employment, to just and favourable conditions of work and toprotection against unemployment. he al th art. 25. 1. everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 6. right to medical screening and early diagnosis to receive adequate health attention and the promotion of autonomy. 9. right to receive attention by trained professionals or family members. if attention is provided by health care professionals to ensure the adequate number of professionals is available at all stages of attention. 2. receive personalized attention. 4. that the appropriate means are applied in order to minimize pain. 8. to be treated by competent professionals, who have been trained in communications skills as well and that they may help patients come to terms with death. 9. receive the confort of friends and family the patient wants throughout the illness until the time of death. pr ot ec tio n art.50. public institutions will garantee economic sufficiency of older persons through pensions which have to be updated periodically. they will also promote their wellbeing by means of a system of social services which will respond to their specific problems in terms of health, housing, culture and leisure. 3. the right to be protected in all ways against any form of abuse or violence originating in their placesof residence public institutions or health care centers. 5. right to sufficient earnings as well as to maintain the management and administration of their wealth and properties. 11. right to receive all those services required depending on their level of dependence in a health care facilty where all their needs are met based in a person centered approach. legal protection of the rights of older persons against ageism the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 62 de fe ns e art. 6. article 6 everyone has the right to recognition everywhere as a person before the law. art. 18. (…).the protection of older persons requires that public administrations promote a positive image of the older person in the media and marketing campaigns, avoiding any type of message that harms their identity and image. 4. right to an adequate protection before the law of the person and also of theirproperty, particulary in case of mentally disabled persons. c) to receive adequate warning if the procedures to be applied to them will be used in any medical testing or part of a medical investigation; written authorization is a must if this is the case, be it from the patient or his/her legal representative. j) to take appropriate legal or administrative action in defense of the rights recognized in paragraph 1 of this article. pr op er ty art. 17. 1. everyone has the right to own property alone as well as in association with others. art. 17.2. no one shall be arbitrarily deprived of his property. i) to the full exercise of their property rights. in fo rm at io n 1. right to receive information and enjoy benefits which prevent dependence 12. right that society is aware and sensible to the difficulties dependent older persons face. b) to receive in understandable and accesible terms complete and updated constant information regarding their dependence. 5. to receive honest and adequate responses to their questions, giving all the information that the older person is capable to assimilate au to no m y 2. right to decide to be recognized throughout old age as fully capable citizens with utmost respect to their dignity and privacy. 7. right to take part in decision making regarding their care taking, support and possible alternatives. f) to make decisions, while still in full deciding capacity, regarding arrangements over care of person and property when such capacity is lost g) to freely decide being admitted into residential care. 3. participate in decision making over the care and medical treatment to be received pr iv ac y d) that their right of privacy be respected both in the acquisition of their data as well as in their treatment according to law a 15/1999, 13 december (protection of personal data) m. pilar munuera gómez, mª elena blanco larrieux the age of human rights journal, 10 (june 2018) pp. 42-63 issn: 2340-9592 doi: 10.17561/tahrj.n10.3 63 du tie s 13. right of dependent older persons to respect the general interests of the community where they reside 14. responsibility of dependent older persons to be active in their self care de at h 10. die in peace and with dignity table 2. comparative table: rights of older persons. elaborated by the author m. pilar munuera gómez0f m. elena blanco larrieux1f abstract: human beings go through stages of vulnerability during their evolution and development. old age is one of these. the rights of older persons are acknowledged to a certain degree but have not yet been developed into an integral system like th... keywords: ageism; rights; individuals; older persons; needs; protection; citizens. iv.1. law 39/2006 law on promotion of personal autonomy and attention to persons in situations of dependency (lpad). table 1. benefitiaries receiving benefits. imserso march-2017 the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 109 the antidiscrimination principle and the determination of disadvantage 1 maría josé añón 2 abstract: this paper examines some of the limits of antidiscrimination law in its present form, focusing on the major trends that underlie it from the perspective of legislation and case law. it reflects on the traditional principles of interpretation and the impediments to incorporating standards offering both justification and explanation in the test of equality; standards that might detect the patterns or social structures of discrimination and identify individuals with greater accuracy. to this end, it proposes to further develop the debate on indirect discrimination and material equality through additional interpretative criteria that originate in categories such as structural discrimination and the intersectionality of discrimination. keywords: disadvantage, equality test, indirect discrimination, structural discrimination, intersectionality. contents: i. unresolved issues in antidiscrimination law; ii. the category of disadvantaged group; iii. determination of disadvantage and the test of equality; iv. on justificatory arguments in cases of discriminatory treatment; v. concluding remarks i. unresolved issues in antidiscrimination law virtually from the outset, antidiscrimination law has had to deal with several issues, some of a dilemmatic nature (fredman 2011: 109 et seq), at the different legislative, judicial or dogmatic levels in which it has been taking shape, both in domestic and international legal systems (bamforth; malik; o’cinneide; bindman 2008: 19-22, 95 et seq) these issues may be broken down into, among others, three areas that constitute the context or background of this reflection on antidiscrimination law, and which i shall present as unresolved challenges, ordered from lowest to highest degree of abstraction. 1 this article was written within the framework of the research project der 2009-10869 of the spanish ministry of science and innovation. a spanish version was published in isonomia nº 39, october 2013, 127-158. i would like to thank the professors of the itam law seminar for their careful reading, observations and comments on the original text of this article i am also grateful to emilia bea and paul miravet for their suggestions and contributions. 2 professor of philosophy of law, institut de drets humans, universitat de valència, spain (mariaj@uv.es). the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 110 first, legislative and judiciary developments are affected by a series of questions that, despite everything, require still more refined responses. thus, the legal system has difficulties in correctly identifying the specific categories of those who are discriminated against. there are two central issues in this regard: the identification of individuals, classes and categories, and recognition that the origins of discrimination lie in the social structures of oppression, domination and subordination. hence, as noted by barrère and morondo (2011: 35), at present there are no clearly defined parameters in case law or legislation that justify the category of “disadvantaged group”. the second category of issues to be considered is those of a conceptual and metatheoretical nature, which call into question how legal systems detect and address processes of discrimination. this entails distinguishing between the evolution of legislation and case law, national or international, and doctrinal developments, which are more critical yet make proposals intended to not stray too far from established law. we find ourselves in a domain in which a plural, substantive and critical theoretical development has always gone before legal responses. moreover, legal systems have often been slow and lacklustre in taking on these theories. i intend to examine the concept of discrimination and the various forms of discriminatory processes as they are seen by legal systems, showing, in turn, the prevailing approaches to discrimination. third, a more general reflection on the link between discrimination and equality. cases on equality and discrimination reviewed by the courts generally reflect how equality is understood in the context of each society. there is an ongoing debate as to whether antidiscrimination law implies a material conception of equality. the interpretation and application of equality clauses, as noted by o’cinneide (2008: 84), tends to be an uncertain and complex process which often provides only minimal protection for individuals and groups who suffer discriminatory treatment. taking this as our starting point, it is also important to recognise that the perspective introduced by antidiscrimination law has led to changes in the interpretation of more formal equality clauses, and there seems to be no doubt that this area of law must not fail to provide protection to disadvantaged groups subjected to discriminatory treatment. protection, however minimal, that must take into account the social reality behind these groups as well as the impact of regulations, and the effect of policies, on them; it needs to go beyond a formalist interpretation of equality that has long since been superseded in theoretical terms and, at least in part, in its practical application (nussbaum, 2007). it is for this reason that the provisions made by courts in this area of regulation could make a major contribution to the protection of human rights if they succeed in conveying at least a clear idea of what constitutes unacceptable forms of disadvantage, discrimination and inequality (o’cinneide 2008: 81-82, 97, barranco 2011: 38 and 39). these starting points may be useful to reflect on two types of issues. on the one hand, that rational analysis of the antidiscrimination clause gives rise to elements that offer compelling reasons for vitiating the dichotomous view on types of discrimination and understanding that the distinction between direct and indirect discrimination is too limited and insufficient to encapsulate social patterns of discrimination or structures of domination. on the other hand, that some parameters have to be introduced to the test of maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 111 equality that require inclusion of information characteristic of material equality in the legal argument, such as: social context, social impact and the various consequences of legal norms, and structural assumptions in place as a result of regulations or stereotypes that are still being used to justify differential treatment. this means that the range of justificatory arguments needs to be broadened. the meaning and origin of these arguments are to be found in approaches that take into account systemic or structural discrimination and the perspective of intersectionality in discriminatory processes. a final remark. in my examination of the arguments of the antidiscrimination clause, i will refer to some judgments of the european court of human rights, although the analysis may also apply to the task of the legislature. i start from the premise that the key to making discrimination understandable and manageable in the eyes of the law is recognition of the social structures of oppression, subordination and domination. this has to be done through categories or approaches that are rooted in structural discrimination and the perspective of intersectionality. however, it is precisely the characteristics and indeterminacy of structural discrimination that compound the difficulty faced by the judicial process to be an effective means of overcoming this type of discrimination or even of compensating injustice. the future of non-discrimination is also linked, as suggested by guiraudon (2009: 527), to the development of equality standards and to the actions of civil society and social partners in keeping this issue on the political agenda. indeed, along with the more technical difficulties of incorporating legal categories, principles of interpretation, and appropriate responses to these processes of systemic discrimination into the law, we should not underestimate the limitations of the law itself for eliminating deep-rooted inequalities. ii. the category of disadvantaged group the focus on disadvantaged or vulnerable groups rests on a number of theoretical and political premises that propose incorporating the idea of social justice, the analysis of social structure, and the institutional context that often helps determine distribution models. this is essentially because it is an approach that values the importance of the institutional, structural and relational environment for human life. for its part, and as pointed out by giménez gluck (2004: 171-173), the specific non-discrimination clause, which is present in international and constitutional legal texts, performs a dual function. on the one hand, it is prohibited from being used to occasion harm to certain groups or collectives who, because of their history of denigration, subjugation and social neglect, have not, in fact, taken part in the process of drawing up regulations. rey and giménez (2010: 23-24) describe these groups as “absent and marginalised...by informal, but substantial, barriers.” according to the democratic ideal, society is made up of individuals who recognise each other as moral agents of equal dignity, and public decision-making reflects the principle of equal capacity of people for self-government, the right of each and every individual to make their voice count on equal terms. there are, however, social groups that have historically been treated unfavourably, pushed away from positions of power, from the the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 112 law-making process, and from the public sphere. the idea of “suspicious traits” symbolises, or makes explicit, a history of discrimination that has engendered, and continues to engender, significant disadvantages and prejudices that are the core of social discrimination. on the other hand, the clause protects these same groups through a demanding legal determination of equality. giménez gluck (2004: 173) explains that under the spanish constitutional model the constitutional court may adopt two levels of aggravated scrutiny and a minimum scrutiny. the first two consist of a strict scrutiny of the regulations that are prejudicial to the aforementioned groups. in this case, protection takes the form of a presumption of unconstitutionality or of illegality with respect to the regulation, when said persons have been unfavourably treated on the basis of these elements. there is also an intermediate scrutiny for regulations that benefit these groups. this ground, in turn, introduces the criterion of material equality (article 9.2 of the spanish constitution) as an integral part of the constitutionally desirable aim of justifying unequal treatment. finally, minimum scrutiny applies to cases in which equality does not take into account any of these criteria, either harmful or beneficial, and is characterised by a presumption of constitutionality in favour of the legislature. the fundamental issue in antidiscrimination law is, without doubt, identification of the category “disadvantaged group” or “particularly vulnerable group”. this is a central theme, although it has not yet been resolved. taking into account both the basic features of the social group to which political philosophy refers, 3 and those that have been accepted by some courts of reference, we can highlight basically three: identification of the disadvantaged group, a history of discrimination and a situation, both past and present, of disadvantage. (a) the social group is not only constituted by a number of individuals, but also by the fact that it contains relations of interdependence: “members of the group identify themselves – explain who they are – by reference to their membership in the group” (fiss 1999: 138-142). 4 the reason for this is that they share certain traits that identify them as a group. this characteristic does not have to be involuntary and immutable, but it does have to be defining, i.e. the trait that defines a regulation is the reason why the group has suffered a history of discrimination and been excluded from political decision-making, and why there are a number of social prejudices against members of these groups (giménez gluck 2004: 232). the notion of group, however, should not be interpreted as an essentialist or naturalistic entity, characterised by a specific set of common attributes. this means that there is not something akin to a common nature shared by those who are members of the same group (de lucas 2006, 59-129). 3 kymlicka 1996, fiss 1999, young 2000, villoro 2001, de lucas 2004. 4 fiss has, since the 70s, been a leading proponent of an influential school of thought advocating the need for the u.s. supreme court to adopt an interpretation of the equal protection clause from the “subordinate group” fiss 1999: 138-142. currently fredman 2011 and young have argued in a similar vein. see also o’cinneide 2008: 87-88. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 113 in the case of women, as has been repeatedly pointed out, the idea of group is highly controversial. in this context, writes ballestrero (1996: 91-107), what gives a gender community a value of “group” is the fact that, for certain situations – employment, high-level professional positions, positions of responsibility, passive suffrage, etc. – women appear to be a “disadvantaged group” in that they are systematically under-represented. they thus constitute a gender community to which it is permissible to attribute different meanings and implications but which, however, is not yet accepted. nor is it appropriate, in this context, to resort to the legal category of minority as a concept analogous to that of group. barrère and morondo (2011: 35-36) also draw attention to the limitations that arise from defining antidiscrimination law and discriminated groups in terms of minorities, in keeping with an ethnic or ethnocultural minority model. this concept creates a certain ambiguity in the identification of differences, inequalities and interrelationships and is particularly inadequate when applied to women (phillips 2004). women are not a numerical minority nor do they share a particular identity; rather, they make up half of any majority or minority group. moreover, the parameters of the conceptual model that defines the rights of ethnic minorities are inadequate when applied to situations of subordination and oppression to which other classes of individuals, including women, are subjected. however, what is important, with respect to this first requirement, is an awareness that the process of discrimination has an indelible group or collective dimension. discrimination as unfavourable or unjust differential treatment towards a person because of their sex, racial or ethnic origin, religion, beliefs, age, sexual orientation, etc., is by definition a group or collective bias, since it originates in, and is experienced from, characteristics that an individual shares with a group, despite the internal heterogeneity that occurs in all groups (barrère 1997, 2008: 60-62). it is true that the thesis of a group dimension in discrimination has been obscured by the claim that the demands from disadvantaged groups can only be articulated through collective rights. 5 in this case, ours is a different position. it is about taking into consideration the fact that discrimination and structural inequality have a defining collective or group facet or dimension. unequal and unjust treatment is experienced by individuals, but the reason for this treatment is that they share, or are attributed with, characteristics or prejudices associated with a group. recognition of the collective or group dimension of discrimination has taken root in a legal culture steeped in individual legal categories. therefore, the concept of discrimination used in legislation and case law texts interprets discrimination as a conflict between specific individuals, and tends to turn the problem into an 5 see ansuátegui (2002) for discussions on this category. the debate on the category of collective rights opened up an excessively dichotomous divide between liberals and communitarians. the notion of collective rights may have different meanings: (i) rights that may be reconciled with individual rights inasmuch as their justifying motives are shared with individual rights; (ii) rights granted to non-individual subjects who have some kind of legal personality; (iii) individual rights that may only be exercised through a group or where the group is necessary for the right to be effective, as with the right to language or the right to strike; (iv) rights of which the holder may only be a collective that also has a collective interest, which cannot be protected as if it were an individual interest. examples: the right to collective bargaining, the right of peoples to political self-determination. the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 114 intersubjective matter (rubio 2003). although there has been progress, the logic of equality developed by way of legal mechanisms, writes squire (2009: 507), is straitjacketed in a model of individual equality, poorly prepared to implement the concept of group-based equality and to cope with more complex structural aspects of discrimination, as is the case of intersectional discrimination. (b) second, the group has to have a history of discrimination that is projected onto its current situation and that can be tested. as noted above, in these cases the courts proceed through an aggravated determination of equality, or strict scrutiny, which is justified by the suspicion that the legislature may have laid down certain regulations in a discriminatory manner, in keeping with two criteria: “because a situation of historical neglect may be noted and secondly, social and/or political disadvantage persists” (giménez gluck 2004: 174). in this context, the european court of human rights, like other courts, proposes a set of parameters designed to identify whether there is a history of discrimination based on any of the prohibited criteria relating to a particular right affecting the case examined. it may thus be ascertained if the group has been excluded from access to, or the exercise of, one or more rights in the past, and if there is a correlation between the current regulation of a right or benefit, and the discriminatory policies and practices of the past. such questions have been widely raised in cases such as those of gypsies in romania or violence against women in turkey. the european court of human rights considered, in the timishev case, that “ethnicity and race are related and overlapping concepts. whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds.” (timishev v russia, 13 december 2005, paragraph 55). in the case of sejdíc and finci v bosnia and herzegovina, 22 december 2009, after repeatedly explaining the relationship between race and ethnicity, it added that “discrimination on account of a person’s ethnic origin is a form of racial discrimination.” on the other hand, one case in which the spanish constitutional court has recognised the category of particularly protected group, even if not explicitly described as such in article 14 of the spanish constitution, is that of people with disabilities. 6 (c) the third condition requires proof that the group is in a situation of subordination. the social, economic and cultural position that its members occupy in 6 spanish constitutional court decision 269/1994, of 3 october, on the allocation of jobs for people with disabilities in the canary islands administration. the court considered that discrimination obstructs the adoption of treatments that, on the whole, hamper equal treatment and equal opportunities for certain groups of individuals, such treatment having its origin in the combination in these individuals of a number of differentiating factors that the legislature considers to be explicitly prohibited because they violate human dignity. but this range of factors is not a closed list. if the legislature uses the trait of disability to harm the group, the court considers that this should be subject to a strict equality test. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 115 the community, the persistence over time of this position, or the social prejudices that it is subject to, are evidence of subordinate status. the condition of subordination is proven by demonstrating a social situation of material inequality, produced not only by a history of deracination, but also by the fact that the group or one, or some, of its characteristics are seen in a negative light by society, so that the conclusion may be reached that there is social prejudice against the group. thus, the convention on the rights of persons with disabilities defines disability as the situation of those “who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. in the context of proof, or in the search for evidence, of a disadvantaged situation, increasing importance is being attached to data collection. 7 in this regard, various activities, such as the processing of statistical data, the work of antidiscrimination watchdogs, 8 the actions of equality bodies, research, the exposition of cases of discrimination practices and best practice models, 9 are essential means for revealing the presence of different forms of discrimination in society. general recommendation no. 31 of the committee on the elimination of racial discrimination (cerd), on the prevention of racial discrimination in the administration and functioning of the criminal justice system, highlights, coincidentally, the importance of factual and legislative indicators in identifying cases of discrimination, especially in the case of indirect discrimination. 10 iii. determination of disadvantage and the test of equality identifying discrimination as a disadvantage has certain limitations. discrimination is articulated through social processes that are difficult to eradicate, are deeply engrained in our systems of socialisation, and have a great ability to mutate and 7 european parliament report, of 6 july 6 2007, on the application of directive 2000/43/ec implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, draws attention to data collection in this area. it stresses the importance of data, that should be disaggregated, in demonstrating indirect discrimination, as well as informing policy and developing positive action strategies; but that at the same time raises serious ethical and legal questions. in this respect, it prohibits the use of individual privacy (identities) as a basis for ethnic or racial profiling. guiraudon 2009: 540. see also garcía añon (2013). 8 by way of example we can mention, in the context of the united nations, the united nations statistics division and the sub-commission on prevention of discrimination and protection of minorities. in europe, the european monitoring centre for racism and xenophobia and the eurobarometer. also worth mentioning is the eurostat working group run by eu dg employment for the measurement of discrimination. 9 since its inception in 2000, the raxen network has provided data and examples of best practice to the european union agency for fundamental rights, especially in the field of antidiscrimination measures in the labour market. 10 attention has also been drawn to the fact that the measurement of discrimination involves difficulties similar to those found in the measurement of poverty or welfare, which have been around for longer and may be used as a model (wrench 2008: 77; guiraudon 2009: 538-539, 543). the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 116 adapt to the medium that best enables it to stay invisible. in order to overcome such difficulties as far as possible, i will look at the factors, criteria and arguments that, developed in the context of the equality test, help to clarify the meaning of disadvantage or subordination. the approach typical of some courts of reference, such as the european court of human rights, in the test of equality mainly comprises three stages. the first is really a pre-stage that should determine the level of the scrutiny – strict, intermediate or minimum – as described above. the second stage is the rational basis review, whereby the court considers whether there is sufficient cause for action, i.e. if there is a situation of unequal treatment that requires justification, and, for this purpose, it examines the rationality of the regulation, its basis or reasons for existing. the third is the proportionality test. in this, the court proceeds on the basis of two questions: whether the differentiation pursues a legitimate aim and whether there is proportionality between the means employed and the aim that must be achieved. the thesis propounded here introduces the determination of disadvantage, and what this entails, in the second stage of the approach. the aim of the rational basis review, as i have already noted, is to establish the rationality, the basis or reasons for existing of a regulation and the individuals that are subject to it. it entails identifying the disadvantage of the group, specifying social patterns of discrimination and determining, as proposed by timmer (2011: 722), specific social stereotypes and prejudices prior to entering into arguments on the justification of the regulation. it is at this moment where factors most associated with disadvantage should be examined: the historical context of the group, past and present effects of the regulation under scrutiny, and social prejudice or pattern of discrimination. 11 (a) examination of the historical context shows that the severity of the patterns of domination, prejudices or stereotypes depends largely on the social environment in which they occur. the european court of human rights has shown signs of being aware of this. in the case andrle v the czech republic, which analyses the pension system in the czech republic, the court found that such a system is clearly based on the stereotype of man as breadwinner and woman as housekeeper. in the case d.h. and others v the czech republic, which ruled on the practice of segregating roma children in primary schools, the state constitutional court answered allegations that the education 11 the decision that marks a significant change in the relatively formalistic case law of the european court of human rights is d.h. v the czech republic (application no. 57325/00), judgment of 13 november 2007, in which the court holds that the educational policies of the czech republic led to an outcome which de facto segregated the roma/gypsy children in special schools, and that this is contrary to article 14 of the european convention on human rights. this is an interpretation that could potentially widen the scope of the convention. dissenting opinions critically point to the fact that the court made an assessment of the social context in relation to the position of roma in czech society. in a similar vein, in andrle v the czech republic, no. 6268/08, 17 february 2011, the dissenting opinions call into question the adoption of the perspective of the “disadvantaged group”, arguing that it is a deviation from the model represented by formal equality, which is at the heart of the rule of law in europe. see also the case alajos kiss v hungary (no. 38832/06, 20 may 2010, paras. 42-44). maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 117 of these children had not been adequately supervised and that they had little possibility of accessing schools with a standard or ordinary curriculum, by declaring that “it was not its role to assess the social context” and that the parents of the children had not proven that they had shown interest in their children progressing in formal education (paragraph 28). (b) with regard to assessing the current impact of the regulation, the court may question what kind of damage it causes and to whom, and investigate its effects. social impact of all kinds – psychological, economic, cultural – should be examined: impact that can affect people’s material or social status. this is the area best suited to considering the intersectional approach to the effects of applying regulations. (c) finally, the court proceeds to “unmask” the stereotype, to identify the prejudice more precisely, to determine the pattern of structural discrimination, making clear its adverse consequences, as well as the international obligations of states, which may be used to combat this type of discrimination. this analysis aims to highlight the kinds of experiences that society considers “natural”, are fully internalised, and that are often part of the reasons invoked by states to justify discriminatory regulations. these three steps enable a stereotype to be identified and determined to be wrong or unjust; in short, an injury or a social evil. cook and cusack (2010: 40) underline the need for such a diagnosis in order to establish guidelines for both dealing with, and eliminating it. assessing the context and the effects of the regulation, and identifying the pattern of discrimination, are necessary not only to detect stereotypes, but above all, as noted by timmer (2011: 718), to understand to what extent they are harmful. the test of rationality is essentially legal ponderation on the justification of a regulation. identifying underlying patterns of discrimination or social prejudice, in accordance with the elements i have outlined, and reaching the conclusion that it is indeed a regulation whose rationale responds to these same patterns, could have significant consequences. it could also introduce certain interpretative guidelines, for which i would draw attention to two criteria: on the one hand, stipulating that negative social prejudices regarding vulnerable groups or identified patterns of structural discrimination may not be considered valid arguments for establishing a regulation and therefore may not be accepted as grounds of justification for differential treatment. states must provide reasons to justify their laws according to rational criteria or principles, not to social patterns that subscribe to the need to preserve cultural norms, traditions or the status quo. in the case d.h. and others v the czech republic, which looked into the segregation of roma children in primary schools, the court demonstrated the inadequacy of the reasoning of the state education authority, which denied the existence of discrimination and noted “a tendency on the part of the parents of roma children to have a rather negative attitude to school work” (paragraph 26), as justification for the education policy under review. nor did the european court accept the arguments of the russian constitutional court, in the case the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 118 konstantin markin v russia (7 october 2010), that “as far as parental leave is concerned, the different treatment of male and female military personnel is justified by the special social role of mothers in the upbringing of children” (paragraph 48). on the other hand, questioning an element usually required in the test of equality: the point of comparison. according to this parameter, discrimination occurs wherever different treatment is given to people in the same or a comparable situation without objective reasons and without reasonable justification. recourse to this criterion has been exposed for various reasons. these include the fact that it is not applied in most cases of indirect discrimination, or to prove intersectional discrimination, or even that there are cases in which there is no point of comparison. 12 on this point, some writers suggest replacing the comparability test with a “test of disadvantage” (gerards 2005, 669-675), stating that the disadvantage or damage caused does not depend on comparison with another group of people (goldberg 2011: 728), or that it makes use of substantive principles or criteria that are part of human rights law and that enable a theoretical standard to be employed in reviewing a case. iv. on justificatory arguments in cases of discriminatory treatment i shall now look at the arguments that should be included in the antidiscrimination clause and that must necessarily refer to types of discrimination which both transcend the dichotomy between direct and indirect discrimination and call for the antidiscrimination principle as a standard of material equality. i will focus on reasons that may be provided by looking at indirect discrimination and to what extent it should be based on assumptions that arise in the field of structural and intersectional discrimination, expanding the justificatory arguments in cases of discriminatory treatment. thus, in view of the limits of antidiscrimination law, consideration may be given to other arguments derived from more complex approaches that address the social structures in which subordinate status arises. iv.1. direct discrimination we use the term direct discrimination to refer to differential and harmful legal treatment of a person by reason of any of the prohibited grounds of differentiation. 13 it is a situation in which, depending on the traits that have special protection, a person is or may be treated less favourably than another in an analogous or comparable situation (rey and giménez 2010: 33). in these cases the prohibited ground is explicitly invoked 12 reasoning adduced in the case konstantin markin v russia (application no. 30078/06, 7 october 2010). 13 european directive 2000/78/ec of 27 november 2000, establishing a general framework for equal treatment in employment and occupation. in the spanish legal system, article 28.1.b of law 62/2003 (law transposing european equality directives) incompletely incorporated article 2.2 of directive 2000/43 concerning the situation in which a person is treated worse than another on the basis of protected characteristics, and when he/she has been treated worse in the past and he/she may be so in the future. organic law 3/2007, of 22 march, for effective equality between women and men, more adequately transposes, in title i, the contents of the two european directives on discrimination. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 119 as a motive for differentiation or exclusion – for example, when women are prohibited from pursuing a profession, or when racial distinctions are imposed for entitlement to a right, or when persons with disabilities are prohibited access to a public office or employment – and, conversely, in the case of failure to comply with a legally imposed obligation or affirmative action measure. for example, when a notice is displayed in a public place, such as a bar or restaurant, prohibiting the entry of persons of a particular race/ethnicity. at the core of direct discrimination lies differential treatment towards an individual. therefore, the first element of direct discrimination is evidence of less favourable treatment, which can be relatively easy to identify. for example: refusal of entry to restaurants and shops, lower pensions or salaries, verbal abuse and violence, checkpoint refusal, exclusion from certain professions, denial of inheritance rights, exclusion from mainstream schools, deportation, denial or withdrawal of social security allowances. proof of direct discrimination renders the regulation or practice in question invalid. the essence of the grounds for this kind of discrimination lies, for courts, in comparative reference. as discrimination supposes less favourable treatment of another person or a class of individuals who are in a similar situation, a comparative reference is required: a person or a class of individuals who are in substantially similar circumstances and whose main difference from the other is a “protected ground”. 14 however, requirement of a point of comparison in cases of direct discrimination owing to specially protected traits has changed. an example of this is pregnancy in the workplace. a long case law of the court of justice of the european union, which began with the key case dekker v stichting vommingscentrum voor jong volwassenen (vjvcentrum) plus, case c-177 (1990) ecr i-3941, 8 november 1990, clearly states that if the damage suffered by a person is due to her pregnancy, the situation qualifies as direct discrimination without recourse to a comparative reference. iv.2. indirect discrimination indirect discrimination arises from a regulation or practice based on a factor of differentiation considered “neutral” and whose application results in an effect or result that excludes a group or collective without objective justification. discrimination is a consequence of the social impact of the regulation on a specially protected group. indirect discrimination is also referred to in terms of its impact, as opposed to treatment in the case of direct discrimination, because, ultimately, it entails an assessment of the different impact that legal difference in treatment (theoretically neutral, i.e. not characterised by suspect, specially protected traits) causes to protected group members as compared to the majority. to this end, in order to assess unequal impact, it is possible and convenient to use statistics. 14 echr case luczak v poland, no. 77782/01, 27 november 2007 the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 120 some of the pertinent factors or features of indirect discrimination can contribute to identifying disadvantage; they also have repercussions on the material dimension of equality. the fundamental grounds for this kind of discrimination would surely require – and this is worth noting at this juncture – an extension of the justificatory arguments in cases of differential treatment inasmuch as this leads, in varying degrees, to a material assessment of inequalities. such an assessment is closely linked to the characterological traits of this type of inequality. thus, (a) it consists of discriminatory treatment that assesses, or focuses on, the social impact of the regulations and prior acceptance that this impact may be both the intended and unintended outcome on the part of the individuals or authorities that adopt the regulation or recommendation. (b) it underlines the collective or group dimension of discriminatory processes, as indicated above. (c) it has been developed in conjunction with other restitutionary principles. categories have been developed within the framework of antidiscrimination law in relation to the recognition of principles regarding protection and reparation, which are of vital importance to the effectiveness of this set of rules. we may single out the more relevant of these principles: indemnity against complaints, claims or charges related to the principles of equal treatment and non-discrimination; the restitutionary principle of invalidating all acts that cause discrimination; 15 and the principle of legal guardianship, the right to demand the protection of the courts. (d) due to its particular significance, separate mention should be made of the principle of sharing the burden of proof, as this modifies evidentiary procedures and facilitates access to justice in such cases. esteve (2008, section 5) stresses the importance of properly applying the new “sharing of the burden of proof”. after a long process, the court of justice of the european union has established case law on gender equality, 16 recognising a new balance of evidence which abandons the element of intent and bases its approach on the objective observation of difference in treatment. except, of course, in criminal matters, the court of justice of the european union has recognised that in all other areas of law the rules regarding evidence were depriving victims of the opportunity to assert their right of action. 17 indeed, as esteve argues, the effectiveness of any antidiscrimination legislation depends on its evidentiary rules, but the challenge is not only in establishing a new legal system but in successfully changing traditional court proceedings with respect to methodology and evidence. article 8 of directive 43/2000 does not impose a reversal of 15 directive 2006/54/ec of the european parliament and of the council of 5 july 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). this restitutionary principle is complemented, on the one hand, by the obligation to compensate for damage caused and, secondly, by a catalogue of sanctions against the person who discriminates, which must be effective and act as a deterrent, but which in no case should victimise those who suffer discrimination. 16 court of justice of the european union, judgment of 27 march 1980, “jenkins” case 129/79 17 european court of human rights, shanaghan v united kingdom (application no. 37715/97), 4 may 2001. the court recognised the practical difficulties of proving “racist motives”. the most emblematic case is nachova and others v bulgaria (no. 43577/98 and 43579/98), judgment of 6 july 2005, which states that in cases in which racial discrimination is invoked, the burden of proof rests with the respondent government, which, on the basis of additional evidence or a plausible explanation of the facts, will have to satisfy the court that the reported events were not inspired by a prohibited discriminatory attitude. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 121 the burden of proof, but a redistribution of the burden between the plaintiff and the defendant; 18 in fact it postulates that only when the defendant cannot justify the legitimacy and proportionality of the measure may discriminatory treatment be determined. the plaintiff must provide sufficient evidence of the existence of a discriminatory measure. nevertheless, evidence of indirect discrimination is extremely complex, difficult to expound, and has not always been applied consistently by the courts, which do not therefore realise the full potential that this legal institution might represent (bamforth et al. 2008: 339). ultimately, the scope of application of indirect discrimination entails, as we have seen, a necessary widening of justificatory arguments in cases of discriminatory treatment. iv.3. complementary interpretative criteria the thesis that i have been supporting affirms that the line of reasoning relating to the situation of disadvantage affecting individuals and groups in the assessment of discriminatory treatment calls for a determination of the pattern of structural discrimination to be incorporated in the test of equality; likewise the identification of social prejudice or stereotypes that constitute the rationale or the basis of the regulation under scrutiny. in this process of identification, the arguments proffered by direct and indirect discrimination are insufficient: additional motives or interpretative criteria need to be found in the structural discrimination approach and in the intersectionality perspective. although i have, at different times, highlighted the inadequacy – in terms of being exhaustive – of the classification of types of direct and indirect discrimination, and maintain that these two types of discrimination have to be supported or complemented by arguments proceeding from other approaches to discrimination, i do not intend to argue that the concept of “structural discrimination” be recognised as an independent legal category and on the same level as the legal concept of indirect discrimination. in this sense, i consider it important to state that the approach that derives from structural discrimination may be understood to be an interpretative standard additional to indirect discrimination. the reason for this is that we find reasons of greater weight or that are more justified if we add or incorporate other supporting motives, found in the concept of structural and intersectional discrimination, to the explanation given by indirect discrimination. 18 in spanish law, the provision on the burden of proof is regulated by articles 32 and 36 of law 62/2003 amending the labour procedure act (art. 96). this regulation modifies the burden of proof in labour, civil and administrative jurisdictions in a proper implementation of eu legislation. it is not applicable in criminal proceedings where the prevailing principle is that of presumption of innocence. in the case law of the spanish constitutional court the principle of sharing the burden of proof had previously been included in court proceedings. the social chamber of the french court of cassation, as indicated by f. esteve, is where the community approach was first incorporated in the late 90s, constructing a theory of access to proof in union discrimination. the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 122 iv.3.1. the perspective of structural discrimination the concept of structural discrimination is a doctrinal proposal aimed at redefining the traditional legal concept of discrimination and including the notion of intergroup oppression in its definition (barrère and morondo 2011: 17). this concept of antidiscrimination law requires or is based on the recognition of systems of oppression. the law, therefore, must address discrimination “as a qualified or signified action of these systems” (barrère and morondo 2011: 39; torbisco 2003). with this definition we can refer to situations of social inequality, subordination or domination in which it is not possible to individualise specific behaviour or identify treatment to which the legal prohibition of discrimination is attributed. these are, therefore, situations that fall outside the legal concept of discrimination. it is a type of inequality based on status, the power to define identity and decision-making. these are recurrent social dynamics that lead to the persistence of structures of subordination and systematically disadvantageous outcomes for certain groups, even in the absence of explicit discriminatory motives that are protected by the law. in this case, and similar to the case of indirect discrimination, proving the existence of discrimination means providing empirical or statistical evidence to demonstrate this “invisible” bias in decision-making. the characteristic features of structural discrimination show that it entails diffuse, systemic – beyond the intent or will of the individuals in question – social processes reproduced institutionally inasmuch as they penetrate, or are projected on, all dimensions of existence, both in the public and social and in the private and domestic spheres, and they intersect, in turn, with the most relevant social variables. hence the depth of their impression and their effect on the decision-making capacity and the formation of preferences. revealing the processes of structural discrimination and ascertaining to a greater degree of precision the determinants in decision-making enables the notion of opportunity to be interpreted in terms of personal capacity, recognition or guarantee of autonomy and decision-making power; the very limits of the notion of opportunity may thereby be transcended, by attributing to it a meaning more consistent with the requirement of the principle of equal dignity (morondo 2004: 140). on the other hand, failing to recognise, or concealing, patterns of structural discrimination may lead to the representation, as free choice, of something which, in fact, is nothing more than an adaptive preference or a choice marked by a state of necessity that invalidates the presumption of free and informed consent (añon 2010, barrère and morondo 2005). 19 the european court of human rights has addressed this crucial aspect in the case d.h. v the czech republic (application no. 57325/00), 13 november 2007. 20 the court questions the validity of the consent of parents of 19 ma. barrère and d. morondo analysed, with regard to consent and decision-making, an interesting judgment of the court of justice of the european union. case g. gruber v silhouette international schmied gmbh & co. kg., 14 september 1999. case c-249/97. 20 other concordant decisions: sampanis and others v greece, 5/6/2008; orsus and others v croatia, 16/3/2010; and horvath and kiss v hungary, 2013. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 123 roma/gypsy children to enrol their children in a type of school designated by law as special, but which were used to segregate roma children in schools. 21 the interesting thing about these proceedings is that in all of them the corresponding governments maintain that there is no discrimination, since education in separate special schools is protected by the umbrella of parental consent. 22 this consent is the decisive factor in deciding where and how the child is schooled. the government’s arguments rely on defending parental consent against the charge of discrimination, based on the premise that parents are autonomous individuals who have the right to choose the kind of education they want for their children, even if it means that their education differs from that offered to other children or limits their future prospects. this case is indicative of a mass or structural disadvantage that can compromise the capacity of individuals to give meaningful and informed consent on the level and type of education for their children. it is a fact that there are asymmetries in education among roma children and other children; they receive a poorer education in terms of its curriculum, with lesser prospects for the future. this asymmetry, proven to exist in education, is also present in the information made available and the capacity for decision-making. what is noteworthy in these cases is that the european court considers the capacity and agency of the parents, taking into account the context of discrimination and conditions of severe marginalisation in which they make decisions. in this context, kosko (2010) proposes, as an interpretative criterion, the idea of a threshold. in the judgments that have been looked at, the european court of human rights rejects parental consent and does so because, on the one hand, it considers that it is not clear that the parents, who are extremely marginalised, give their consent free from coercion and in full awareness of the consequences. on the other hand, it accepts that certain rights, such as freedom from discrimination in education, are of such importance that they may fall outside the scope of parental consent. parental consent is and should be important, says kosko, but only beyond a threshold that would mark the line below which unacceptable harm may be done to the children. in this sense, it cannot represent a triumph for the children’s right to an education, or a defence of the education offered, because it would ultimately mean relinquishing those rights. where this threshold is located, however, is something that has to be established through extensive deliberation and public consultation in each specific case. structural inequality is an interpretative criterion which places the origins of the state of deprivation in which most marginalised groups find themselves in the social processes and cultural practices that define their status, conditioning their options in 21 d.h. v the czech republic (application no. 57325/00) judgment of 13 november 2007. the court notes that the czech state school administration placed the parents of roma children in a dilemma which forced them to make decisions that would mean renouncing a right; decisions that, therefore, cannot be considered valid. see paragraph 204. 22 general comment no. 13, on the right to education, describes actions that constitute discrimination: “(b) the establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil’s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level”. the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 124 life. structural inequality is somewhat different from the idea of transient and incidental disadvantages that could be the result of bad luck or have their roots in misjudged individual decisions. in this sense, the approach based on structural discrimination may be considered an interpretative criterion in support of indirect discrimination, because to understand the meaning or to evaluate, in this case, parental consent, we find reasons of greater weight or that are more justified if the argument proffered by indirect discrimination is bolstered by other supporting reasons that are found in the concept of structural discrimination. iv.3.2. the intersectionality approach intersectional discrimination can strengthen the arguments that are used to identify patterns of discrimination in regulations that are considered discriminatory. this is mainly because it is a point of view that enables structures of discrimination to be detected in systems of oppression or subordination. the perspective provided by intersecting or intersectional discrimination consists precisely in making us reflect on three important aspects: (a) challenging the dominant modes of understanding discrimination, considering that legal systems only partially recognise the structures of discrimination. (b) making clear how legal systems lay down their own antidiscrimination rules through unequal treatment types and paradigms, which are shown to be incapable of correctly identifying the specific categories of those who are discriminated against. 23 (c) determining disadvantage as a form of identification of categories or classes of individuals. the doctrinal development of the concept of intersectional discrimination tends to underline the thesis that we are faced with two or more sources of discrimination that, when combined, result in a situation of inequality qualitatively different from the sum of its parts or from the forms of discrimination considered separately (squire: 497, serra 2013). barrère and morondo (2011: 34-35) refined the concept further in order to give it the greatest possible intension and to overcome or avoid the criticism that has been poured onto this category. the concept has to be accurate enough to not give rise to a “potentially infinite fragmentation of discriminated groups with grave consequences”, to avoid creating hierarchies or priorities of discrimination (verloo 2006) and to preserve a possible inflation of antidiscrimination law. it is more a question of – as the two authors remark – “overcoming contextual or specific forms of discrimination in order to find links in the structures or categories (in the systems of oppression) which may explain its cultural, class, religious, and other manifestations”. “what matters are the subordination and discrimination practices with patterns (relating to gender, race, etc.) that uphold legal norms” (barrère and morondo 2011: 35). without ignoring the criticisms that are levelled at this concept, of diverse order and scope, there needs to be an evaluation of its importance in efforts to identify discriminated categories or classes 23 this issue was first addressed by crenshaw (1989) who analysed discrimination against black women and talked, at that time, of “double discrimination”, because the paradigm of gender discrimination is white women and the paradigm of racial discrimination is black men, so the doctrinal and judicial treatment of cases reflect theory. maría josé añón the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 125 of individuals by demonstrating the disadvantages of all members of that category. v. concluding remarks a final assessment requires looking back to the relationship described at the beginning, between discrimination and equality, particularly with respect to material equality. given the ambiguity of basic concepts, such as equal opportunity or the notion of material equality, and recognising the fact that the interpretation and application of equality provisions is a complex and uncertain process, some conclusions may be drawn. on the dimensions of equality and discrimination. the concept of discrimination that has been making headway in the international arena, as well as many of the techniques of antidiscrimination law, presuppose that equality of rights goes beyond formal equality, even in its broadest sense. although this affirmation is not without resistance and difficulties, on the part of both legislation and the decisions of the courts, making decisions in the framework of antidiscrimination law means recognising that the fight for equality has different dimensions (ruiz miguel 1998: 131-144, barranco 2011: 38-39). on one side, equal treatment and the prohibition of all forms of discrimination. on the other, equal opportunities in the strict or broad sense – equality of outcome – that is, the mandate for public authorities to take measures to balance the position of social disadvantage of certain groups affected by deep-seated prejudices. 24 all these areas have contact points, overlaps that, in any case, go beyond the sphere of formal equality. on the implications of the direct and indirect discrimination dichotomy. in a somewhat ambiguous manner, international human rights texts often claim that there is equal opportunity in the absence of direct or indirect discrimination. 25 this is an idea 24 articles 4 and 5 of cedaw seem to embrace this thesis. article 5 of cedaw prescribes states to take appropriate measures “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” according to the general recommendation of the cedaw committee, states parties have various obligations: (i) ensure that there is no direct or indirect discrimination against women in their laws in both the public and private spheres, and that their protection is guaranteed through authorities and courts; (ii) improve the de facto position of women through concrete and effective policies and programmes; and (iii) address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions (cedaw temporary special measures, para. 7). 25 as an example of this, article 1.1 of law 51/2003, of 2 december, on equal opportunities, nondiscrimination and universal accessibility for people with disabilities (liondau) states that “equal opportunities is understood to mean no discrimination, direct or indirect, which results from a disability, and the adoption of positive action measures to avoid or offset the disadvantages facing people with disabilities which prevent them from participating fully in political, economic, cultural and social life.” the rules under the convention and spanish legislation on the rights of persons with disabilities provide the basis for arguing that the right to equal opportunities (article 4 liondau) means: (a) absence of the antidiscrimination principle and the determination of disadvantage the age of human rights journal, 2 (june 2014) pp. 109-128 issn: 2340-9592 126 that, conceptually, may weaken interpretations closer to the material dimension of equality, but it also enables the development of a perspective from the notion of indirect discrimination which, as we have seen, entails the incorporation of material equality in legal systems or the material assessment of inequalities. the perspective of antidiscrimination law is related to the impact of law and policy on disadvantaged groups and is particularly focused on specific types of prejudice and discrimination, but it is also aimed at preventing disadvantage and at transforming structures of inequality. in this sense, we can say that it operates in the material domain of equality. on the scope of antidiscrimination law. as i have repeatedly asserted, from the moment that antidiscrimination law is oriented towards a recognition of the structures of domination and subordination, a definition of the notion of intergroup oppression and an identification of disadvantage, and that it openly questions the dominant modes in which legal systems contemplate the processes of discrimination, it becomes possible to conclude that the antidiscrimination principle may be understood as a standard of material equality. moreover, it has to be understood as a standard of material equality if it is necessary to introduce, into the legal process, all those arguments designed to demonstrate a pattern of discrimination, identify a situation of disadvantage amongst individuals and groups, and thus assess life chances in terms of capacity, autonomy and decision-making. references ansuátegui, f.j. 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(2000) la justicia y la política de la diferencia. universidad de valencia. the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 138 the coherence of human rights’ foundations stephen riley 1 abstract: to provide foundations for human rights is to prove coherence between focus (what we are talking about when we talk about human rights) and form (in what way we think human rights have a claim to necessity). this paper describes some permissible combinations of form and focus. this approach to foundations can also be shown to reconcile two propositions that might otherwise be assumed to be contradictory. on the one hand, we should reject the notion of a ‘definitive’ justification. on the other, we should admit the intelligibility of strong, moral, foundations for human rights. keywords: foundations; coherence; epistemology; human rights; justification. summary: i. introduction; ii. foundations; iii. contemporary foundational debates; iv. foundational form; v. foundational focus; v.1. ‘human rights’; v.2. ‘human rights’; v.3. ‘human rights; vi. ‘essentially contested concept’ or ‘saving the phenomenon’?; vii. conclusion. i. introduction it is the contention of this paper that, despite recent attacks on the notion, the idea of ‘foundations’ for human rights remains philosophically decisive. the idea of foundations for human rights should be seen as the requirement of coherence in an account of human rights’ nature and necessity. it must, then, be an associated task of the paper to show why ‘non-foundational’ philosophies of human rights are conceptually mistaken. one initial concern here might be whether the concept of foundations is able to transcend, rather than beg the question of, different disciplinary commitments. after all, our disciplines –law, ethics, political theory, history and others– themselves have foundational commitments that determine what is knowledge, certainty, or truth. so, when different disciplines produce markedly different accounts of human rights this is both evidence of the inherent instability of the subject matter and evidence of decisive 1 postdoctoral researcher, department of philosophy, utrecht university. this work is part of the research programme ‘human dignity as the foundation of human rights’, which is financed by the netherlands organisation for scientific research (nwo). i would like to thank the nwo for this support as well as the project team for their comments on earlier versions of this paper: prof dr marcus düwell, dr frederike kaldewaij, dr gerhard bos, jürrien hamer and marie göbel. a version of this paper was presented at the utrecht university practical philosophy colloquium; i would like to thank the attendees for their comments and contributions. all remaining faults are my own. stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 139 epistemological differences between methodologically distinct disciplines. 2 any talk of ‘foundations’ for human rights would, therefore, be the product of these different initial commitments. nonetheless, to analyse human rights we must, regardless of our other commitments, commit ourselves to showing what is being explained or justified, and how this is being explained or justified. no account of human rights –no account that has reasonable claim to be an account of human rights– lacks both conceptual commitments and normative commitments. the meaning of ‘foundations’, whatever else it means, must be understood as an assertion of how these two components, conceptual and normative, can be made coherent. so, there will no doubt be disciplinary differences in what aspects of the phenomenon of human rights we choose to be central. but unless we are committed to the belief that the language of human rights is nonsense and the practice of human rights is meaningless, the task of human rights is theory is explore to what degree there is coherence between our practices and our obligations. in this respect, and more generally, the present paper is represents a critique of recent non-, or anti-, foundational work on human rights. 3 i proceed by way of the language and meaning of ‘foundations’ in general and ‘foundations’ in the context of human rights in particular. this reveals a potential mismatch between deployment of foundations in social explanation and the use of foundations in the explanation of human rights. turning to contemporary philosophies of human rights to consider the source and significance of this mismatch, coherence between form and focus is defended as the common standard by which these philosophies should be judged. it is concluded that it is inescapable, in analysis of human rights, to draw upon the idea of foundations-as-coherence. ii. foundations what is it to make a claim concerning ‘foundations’? part metaphor, and part discipline-relative term of art, a general characterisation would be analysis concerning the conditions or structures that make something stable or enduring. it is possible but exceptional to identify a foundation without qualifications: ‘the foundation of mathematics 2 concerning the former see alasdair macintyre, after virtue (london: gerald duckworth & co., 1981) p. 67f, also rory o’connell, “do we need unicorns when we have law?” 18(4) ratio juris (2005) pp. 484–503. concerning the latter see the literature on essentially contested concepts. generally, w.b. gallie, “essentially contested concepts”, proceedings of the aristotelian society 56 (1956): pp.167-198. in application, gunnar beck, “the mythology of human rights” ratio juris 21(3) (2008): pp. 312-47 and james griffin, “first steps in an account of human rights” european journal of philosophy 9(3) (2001): pp. 30627. 3 most significantly, john rawls, the law of peoples (cambridge, ma: harvard university press, 1999) and joseph raz, “human rights without foundations”, in samantha besson and john tasioulas (eds), the philosophy of international law (oxford: oxford university press, 2010), pp. 321-37. the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 140 is logic’; ‘the foundation of success is a good breakfast’. foundational analysis will more often be qualified. we might say ‘such foundations will only be stable if….’ we might say ‘part of this practice has its foundation in x, but not other parts’. these qualifications allow the possibility of different foundations existing alongside, or underlying, the ones we have identified. they speak to the difference that perspective makes; there may be other perspectives revealing other defensible foundational claims. more specifically, in identifying a foundation for a social practice we commonly imply that x is being made intelligible from an ‘internal’ point of view but not in the same way from an ‘external’ point of view. 4 for example, actions have a foundation in the sense of there being conscious reasons for their taking place but this is not the sole explanatory perspective: ‘the religious foundations of this ritual are found in scriptural passages, but the social foundation is group survival’. generally, when we make a claim concerning foundations we are making a claim intending to explain something’s necessity, i.e. some or all of its causes. but it is also characteristic of discussion of foundations that these need not be sufficient conditions to be considered foundational, and nor need they imply a single, authoritative, epistemological perspective. 5 so, far from always implying axiomatic (or apodictic or self-evident), different uses of foundation suggest that we more commonly look to both its form and its focus. first, we have regard to the form of the foundational claim. is something said to possess an origin, or have a reason for its endurance, or have the capacity for enduring change? we can ask of this form whether it amounts to explanation or justification. that is, whether it identifies causes or necessity (explanation), or whether it identifies causes or necessity and in doing so treats only one kind of necessity as ultimately necessity-conferring or law-like (justification). 6 second, we must also have regard to the focus of the claim. is it intended to be complete and exhaustive? or is it partial, aspiring to give foundations only to part of a larger phenomenon? how, then, are human rights and foundations related? their foundations are of philosophical concern but talk of foundations accompanies human rights wherever they are, politically or legally, at issue. such discussions often concern moral foundations. some may be concerned with the historical pedigree or historical continuity of human rights. others involve solving practical problems in the interpretation of human rights. foundations play a greater or a lesser role in a number of practical and philosophical 4 for two different renderings of this distinction see h. l. a. hart, the concept of law, 2 nd edition (clarendon press: oxford, 1994) and ronald dworkin, law’s empire (oxford: hart, 1998). 5 on the first point see g.h. von wright, explanation and understanding (routledge and kegan paul: london, 1971). on the second see peter winch, the idea of a social science and its relation to philosophy (routledge: london, 2012). 6 this definition is stipulative but elements can be found in joseph raz, practical reason and norms (revised edition) (oxford: oxford university press, 1999) and von wright (1971, p. 137f). stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 141 contexts, and variation in the meaning and function of ‘foundations’ is apt, at the very least, to give rise to the suspicion that its meaning is context-dependent. 7 that problem, which is the core analytical concern of this paper, might be stated as follows. explaining the foundations of social practices usually take the form of identifying composite causal conditions relating to a loosely defined or dynamic phenomenon. 8 the foundation of human rights is, however, frequently treated as a singular phenomenon, and discussion of human rights characteristically treats human rights themselves as a singular phenomenon. does this entail that there is a mistaken tendency towards reductionism in analysis of human rights or, conversely, that the foundations relevant to human rights admit or require more precision than is characteristic of social explanation? this is a variation on longstanding discussions relating to ‘foundationalism’ and ‘functionalism’, but the present enquiry is intended to achieve more clarity on the predominant uses of ‘foundation’ in contemporary debate. 9 more importantly, it is argued that the epistemology related to the idea of a foundation can be put in much sharper focus by pursuing a question that keeps conceptual and methodological problems at the fore. there is a temptation to assume that if we face problems in identifying the focus or object of foundation then epistemological priority must be given to pragmatic modes of explanation. 10 i intend to show that this is based on too hasty dismissal of the question of focus, which in turn encourages too hasty a dismissal of ‘strong’ foundational arguments. nonetheless, for any foundational argument some unity in ‘human rights’ – be it conceptual or functional – must be defended. how has this been approached in contemporary debates on foundations? iii. contemporary foundational debates it is possible to identify two markers that signal the poles of contemporary debates. gewirth’s work from the 1970s and 1980s on morality and human rights, and rawls’ work from the 1990s on international law and politics. 11 the details of these works will be considered in passing, but the poles of debate that they represent are of more immediate importance. crudely, an idealised picture of human rights faces a practical one. or put 7 james griffin, on human rights (oxford: oxford university press, 2008) provides the most important reference point here but charles beitz, the idea of human rights, (oxford: oxford university press, 2009) provides an important, contrasting, response. the differences between these kinds of analyses are, as the general argument of this paper seeks to make explicit, simultaneously methodological, epistemological, and normative. 8 von wright (1971, pp. 136-138). 9 for relevant analysis of the existing currents of thought, and for conclusions close to the present paper, see john tasioulas, “towards a philosophy of human rights”, current legal problems 65(1) (2012): 1-30. 10 see in particular richard rorty, “human rights, rationality and sentimentality” in s. shute & s. hurley (eds), on human rights: the oxford amnesty lectures 1993 (new york: basic books, 1993). 11 alan gewirth, human rights: essays on justification and applications (chicago & london: university of chicago press, 1982). john rawls (1999). the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 142 another way, an epistemologically pragmatic, and in certain respects ‘realist’ political philosophy (rawls), confronts a systematic philosophy claiming logical connection between moral necessity, practical necessity, and the nature of the human (gewirth). synthesis between these positions might be desirable and intelligible. two examples will concern me, waldron’s and griffin’s. waldron considers his account ‘foundation-ish’. 12 he equates ‘foundations proper’ with axioms from which a theory can be deduced in its entirety, a model of foundation he considers inappropriate in this context. 13 however, he does believe that his account of dignity and human rights, turning on the significance of status in democratic societies, is sufficiently foundational because status/dignity has good fit with certain important background assumptions concerning respect and recognition in law. within democratic societies that respect the rationality of the individual all rational individuals are automatic and equal rights holder. ‘dignity’ expresses this elevated status of the individual within a democratic society. 14 griffin, in his twin ‘top-down’ and ‘bottom-up’ approach, draws together ideas of moral necessity and personhood with the (pragmatic and principled) commitment to leave intact existing legal practices associated with justice. 15 moral necessity must bend at some point to this practical and principled necessity, and some aspects of personhood that could be considered human rights concerns are, for griffin, better treated as rights within the normal legal practices associated with justice. this “is reinforced […] by the most consequential statements about human rights in our time: the universal declaration of 1948 and virtually all subsequent documents of national and international law of human rights. these documents include procedural justice but not all of distributive justice, or of retributive justice, or of many forms of fairness.” 16 griffin therefore bridges moral necessity and practice by treating personhood as a foundational concept with expansive consequences while accepting that another foundational notion, justice, must be allowed to coexist alongside personhood and human rights. griffin must be distanced from waldron by his clear separation of constitutional and human rights, and be distanced from gewirth in his treatment of human rights as an essentially contested concept. 17 the rawlsian position is here represented by raz. for raz no analytical significance can be attributed to ‘human rights’. 18 we must then, like rawls, turn to the 12 waldron (2013a, p. 5). 13 waldron (2013a, pp.17-18). 14 “similarly, we may say of ‘‘dignity’’ that the term is used to convey something about the status of human beings and that it is also and concomitantly used to convey the demand that status should actually be respected.” jeremy waldron, “dignity and rank”, european journal of sociology 48(2) (2007): pp. 201-237, at 205. 15 griffin (2008, p. 41f). 16 griffin (2008, p. 273). 17 griffin (2008, p. 4) also griffin (2001, pp. 306-327). 18 raz (2010, pp. 336-337). stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 143 focal example of human rights –that of international, not domestic, law– where at least the language of human rights is prevalent. we should substitute griffin’s generalisations about personhood for individual interests so pressing that they will commonly take the form of ‘moral rights’. such interests can but do not necessarily become claims against the state. in the international arena there are potentially arguments to justify (given a certain quantity and quality of interference with such rights, and given that state inviolability is not absolute) one state taking action against another to enforce them. “[j]ust as rights generally while being reasons for taking some measures against their violators do not normally give reason for all measures, so human rights set limits to sovereignty, but do not necessarily constitute reasons for all measures, however severe, against violators.” 19 consequently, human rights are to be understood as an aspect of international legal discourse that depend for their efficacy on the acceptance of hypothetical imperatives that are themselves subject to existing international political and legal conditions. in essence, moral necessity is substituted for certain pro tanto reasons characteristic of international relations, and human rights, as political rights, have no foundations only conditions of efficacy. 20 the mixture of epistemological, methodological, and normative commitments represented here is clearly problematic. it is liable to suggest that comparison or adjudication between these positions is senseless because of radical differences in their normative commitments, or perhaps that our assessment will be dependent upon whether we have a strong intuition that a particular form of human rights practice is or should be focal in analysis. the following sections are intended to show that two components of human rights analysis are constant: form and focus. the remainder of the paper is intended to show that they are both necessary in analysis of human rights and represent the basis of foundational claims. iv. foundational form recalling our principal analytical question –do the foundations relevant to human rights admit or require more precision than is characteristic of social explanation?– our present concern is with what forms of foundation might be admitted or required in relation to human rights. this will involve simplified models of the positions outlined above. i identify ‘strong foundations’ with the claim that a foundation for human rights is necessary and can be identified. ‘qualified foundations’ implies a claim that a foundation for human rights is necessary, that a foundation can be identified, but that this foundation may not be wholly intelligible. a ‘deflationary’ position implies that while foundational claims are characteristic of the concept, it is possible that more than one foundational position can be defensible in conceptualising human rights. ‘anti-foundational’ is the position that any foundational claim is dissoluble into necessary conditions that can never, alone, supply sufficient conditions. 19 raz (2010, p. 334). 20 raz (2010, p. 337). the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 144 ‘strong’ foundational arguments must take the form that human rights presuppose x as a singular, necessity conferring, principle. this presupposition may concern epistemological or moral necessity; this might be derived from deductions, transcendental deductions, or dialectically necessary arguments. 21 the common characteristic is a singular, necessary, foundation that is identifiable. whether this must necessarily exclude all other epistemological perspectives on the foundation is a question to be deferred. 22 but only one principle has justificatory power vis-à-vis human rights. other perspectives, then, will render only part of human rights intelligible as normative phenomena, or they will fail to make them intelligible at all. the strong foundationalist is likely to be associated with at least one example of a human right, typically the right to life, as an example showing linkage between foundational necessity and at least one human right that is the product of that foundation. 23 ‘qualified’ foundational arguments make foundations necessary but not sufficient for the defensibility of human rights. waldron is a case in point where human dignity, as a ‘status concept’, provides the condition for human rights to be understood as necessary. 24 human rights are ‘contained’ within that status notion. on the other hand it may be that human dignity itself has a ground or foundation that requires further explanation. 25 the pivotal claim here is the existence of a singular foundation, but a foundation that can be understood in different ways and that makes it possible for human rights to be explained in different ways. from one perspective human rights can be seen as directly founded on human dignity itself. from other perspectives our human rights need no talk of foundations at all because they function like, and within, the context of ‘normal’ legal norms. here human rights are likely to be close to constitutional rights as ‘apex’ norms within legal systems but with human rights distinguished by the possibility of appeal to foundations different to those of other constitutional rights. 26 ‘deflationary’ foundational arguments admit the relevance of talk about foundations but does not commit to any single view of necessity. thus we could, like griffin, talk about a foundation or foundations (personhood and/or human dignity) and insist that these 21 for a cognitivist example see, matthias mahlmann, “an introduction to the mentalist theory of ethics and law”, in pattaro (et al, eds), a treatise of legal philosophy and general jurisprudence: treatise 2 foundations of law (dordrecht: springer, 2005), p. 84. 22 for instance, it is unclear whether ‘the generic conditions agency’, the foundational notion in gewirth’s work, can be considered synonymous with ‘human dignity’, these might be the same principle from two perspectives. 23 alan gewirth, “are there any absolute rights?”, the philosophical quarterly 31(122) (1981): pp. 1-16. 24 waldron (2007). 25 waldron (2013, p. 12) also sen on freedom as human rights’ foundational principle (sen, a. ‘elements of a theory of human rights’ 32(4) philosophy & public affairs (2004) pp. 315-356 at p. 323). 26 jeremy waldron, “how law protects dignity”, nyu school of law, public law research paper no. 1183, <http://ssrn.com/abstract=1973341> [last accessed 16/07/14] (december 2011). this characterisation also partially captures core elements of griffin’s work, but griffin’s relationship with foundations is more complex and ‘deflationary’. stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 145 are essential aspects of the discourse of human rights. 27 nonetheless, ‘necessity’ itself is to be understood as complex and qualified. griffin is concerned with the necessary conditions of personhood (qua moral necessity), the necessity of human rights themselves (qua minimum content of natural law within positive law), and the necessity of acknowledging the claims of justice as a corrective to the inflationary tendencies of human rights. 28 the foundations of human rights are the interplay of these factors, but that necessity is complex, works at a number of (normative and practical) levels, and accommodates the various perspectives relevant to human rights given that they are a dynamic phenomenon to which no single meaning can be attached. this kind of account is likely to point to the importance of both civil and political, and social and economic rights, to demonstrate that different kinds of foundational necessity are needed. 29 finally, an ‘anti-foundation’ position would stress the contingent conjunction of a number of factors in the existence of human rights. we can reconstruct their uses in legal, political and other discourses such that salient features and certain preconditions are identifiable. but such preconditions do not amount to foundations because they do not amount to a singular necessity that links our discourse with our norms. 30 this is likely to privilege efficacious instances of human rights. the paradigm example of human rights in this instance would be those international human rights laws that most clearly overlap with humanitarian intervention as the international practice of responding militarily to ‘gross human rights violations’. 31 these are four possible models of foundational forms. none, in the form presented, obviously fails to be a foundational analysis. this is partly because the language of foundations is imprecise, and partly because none is able to claim priority, qua foundational analysis, over the others because each has some explanative power. put in terms of the question initially posed, human rights can admit significant variation in, but do not appear to require, any specific foundational form. however, if the presence of explanative power fails to provide means to adjudicate between the positions, the choice of examples of human rights might. some examples of human rights (or human rights discourse) seem to invite a form of foundational claim. in fact, in some instances the direction of fit clearly 27 compare two of griffin’s propositions in on human rights: “i propose, therefore, only two grounds for human rights: personhood and practicalities” (p. 44) and “a satisfactory account of human rights, therefore, must contain some adumbration of that exceedingly vague term ‘human dignity’, again not in all of its varied uses but in its role as a ground for human rights” (p. 20). 28 griffin (2008, p.13, p.149, p. 256f). 29 henning hahn, “justifying feasibility constraints on human rights”, ethical theory and moral practice 15 (2012): pp. 143–157. 30 jeremy waldron, “human rights: a critique of the raz/rawls approach”, new york university school of law working paper series no. 13-32 (2013b), as well as raz’s response (2013). 31 see wilfried hinsch and markus stepanians, “human rights as moral claim rights” in rex martin and david a. reidy (eds) rawls’s law of peoples: a realistic utopia? (london: blackwell, 2006). this contains a critical analysis of what rawls considered to be “human rights proper” (p. 118 and ff). the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 146 moves from the example itself to the foundation. can these differences in focus be evaluated independently of the forms that foundational claims take? this question is important because it may be this that has a decisive bearing on what kinds of foundations are required for human rights. i will attempt to show this cannot be answered satisfactorily. v. foundational focus recalling again our question –do the foundations relevant to human rights admit or require more precision than is characteristic of social explanation?– our concern here is what might be ‘relevant’ to or ‘required’ by human rights. the justification of different standards of relevance or different foci presents a problem. if they are justified as foci in their representing the best, politically or legally, justified practice of human rights then this is bootstrapping: the product of one form of justification (political or legal justification) does not validate such products as standards for all forms of justification. if they are justified as foci in being the ‘dominant’ meaning of human rights then they are begging the question. so, parallel to the dilemma of one or multiple normative perspectives, here we face the question of whether there is some conceptual or phenomenological quality that must be present in our discussion of human rights in order to ‘save the phenomenon’, or whether the necessary or exemplary properties of human rights will always be ‘essentially contested’. this can be illustrated by some of the possible candidates for focal or characteristic properties of human rights. v.1. ‘human rights’ is it possible to talk about the group of human rights without also qualifying this as the group of ‘human rights used by lawyers’ or the ‘group of human rights of concern to ethicists’? could there be some focal phenomenon, or common ground, associated with the very term human rights that is necessarily assumed in different practices? this points to more specific, and recurrent, points of contestation: whether there is a shared definition of human rights, whether such a concept is susceptible to ‘inflation’ or ‘deflation’, and whether its meaning can be stabilised by alignment with ‘moral’ or ‘political’ rights. the phrase ‘human rights’ itself produces interesting, but arguably tendentious, points. explaining the foundations of human rights is sometimes construed as pursuit of a harmonisation of a contrast between ‘political rights’ and ‘natural rights’ with ‘human rights’ either synonymous with the first or superseding the second. 32 neither could be considered precisely synonymous with ‘human rights’ itself. it appears as though human rights are intended to be enforced as legal rights (why else would they be called ‘rights’ as 32 william talbott’s which rights should be universal? (oxford: oxford university press, 2005). stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 147 opposed to ‘universal moral duties’ or ‘international aspirations’?). and ‘human rights’ appear to be intended to have authority other than the state itself (why would they be called human rights if their existence depended upon the legislative fiat of the state?). whether or not we set any store on the phrase ‘human rights’ to generate analytically important information, it is certainly the case that they have escaped exclusive ownership by legal, moral, or political users and commentators. the language of human rights can be a more precise first point of reference when treated as ‘those rights that accrue to humans by virtue of their humanity’. 33 this is useful in suggesting, at the very least, that human rights should be thought to instantiate value rather that be judged solely by their instrumental value. this is also problematic and the definition itself is contentious. why might it not denote as rights only those immunities that we hold against the state (i.e. humans’ rights are those rights that exist irrespective of citizenship)? moreover, to have membership of a group with distinctive characteristics (humans) is, alone, insufficient to entail a claim to have this characteristic protected. it is this line of enquiry, not in itself senseless, that nonetheless gives rise to the dual threat of ‘deflation’ and ‘inflation’. given an imprecise relationship with the human, human rights risk being deflated to an empty category unless additional criteria are imported to identify what, of significant human importance or of pressing social necessity, should be protected by human rights. answering this question raises the problem of ‘inflation’, i.e. the possibility that human rights is so ideologically potent that it becomes extended beyond its proper remit. 34 some variant of ‘ought implies can’ must then accompany human rights. these limitations must, at the very least, relate to what is intelligibly claimable by humans. 35 beyond this, and in the absence of additional argumentation, ‘human rights’ could be used to denote any desiderata within the sphere of human possibility. in sum, the best focus of interpretation we might be able to extract from this analysis is that human rights are intended to be internally self-limiting. ‘human rights’ cannot reasonably be thought to represent an aspiration to dominate, or provide the means to define, the entirety of our normative language and practices. this is not, however, to suggest that anti-inflationists should have an epistemologically decisive voice in foundational debates: their choice of focus is important, but neither is this the only focus nor does it imply that the correct form of foundation is thereby decided. 33 see tasioulas, gewirth, and raz (op. cit.) for variations on, and criticisms of, this formulation. 34 gewirth (1986). 35 robert stern, “does ‘ought’ imply ‘can’? and did kant think it does?”, utilitas 16(1) (2004): pp. 42-61. the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 148 v.2. ‘human rights’ this concerns common, general, or valuable properties of the species. the core focus of human rights enquiry should be connection with characteristic capacities of humanity, pressing aspects of humanity, or humanity as a cosmopolitan notion. ‘humanity’ might be related to agency, reason-responsiveness, or selfconstitution. 36 it suggests we may be able to generate a class of ‘characteristic capacities of humanity’, i.e. those interests or powers available to all and only humans. by extension, we may be able to exclude from human rights any and all interests that exist in the absence of distinctively human concerns (accepting, therefore, some ‘deflation’). conversely, it might be that we can extent human rights to all those capable of self-constitution or selfconsciousness (accepting, therefore, some ‘inflation’). equally, it may be that ‘characteristic capacities of humanity’ gives support to the possibility that there is only one human right –the right to treatment consonant with the standards implied by ‘humanity’– which is dynamic in both its content and its right-holder. it is more common to attempt to limit human rights scope to ‘pressing aspects of human life and agency’. 37 this could be construed as respecting human limitations and human vulnerabilities; it could imply a threshold for a distinctively or properly human life. a ‘threshold’ marks out a basic standard that it is proper to expect within certain practices (e.g. a standard of living) or a basic standard that it is proper to apply to certain practices (e.g. minimum or minimal thresholds). 38 either way, these face the problem of the ‘human’ no longer being a value to be instantiated in human rights but a set of standards for which human rights have instrumental value alone. the other option would be humanity as rights-holder or, in other words, the cosmopolitan claim that each individual possesses the same rights regardless of their state of origin. here ‘humanity’ is juxtaposed with ‘citizen’, with the former meaning an object trans-national, or international, respect. clearly this focus is of particular interest to deflationaryand anti-foundational theorists for whom there is a link with an established practice, namely humanitarian intervention. in fact this focus could be thought to have two facets: the justification of humanitarian intervention, and a more thoroughgoing commitment to moral cosmopolitanism. 39 it is not clear that the former should be the only focus of concern (why should we ignore the mass of domestic and regional human rights practices?) and the latter as a deferral of the problem. that is, are we concerned with 36 see, inter alia, jacques maritain, the social and political philosophy of jacques maritain: selected readings (london: geoffrey bles, 1956); john finnis, natural law and natural rights (oxford: oxford university press, 2011(1980)); christine korsgaard, the sources of normativity (cambridge; cambridge university press, 1996). 37 gewirth (1986); griffin (2008). 38 sen (2004). 39 waldron (2013b). stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 149 human rights that are already of trans-national concern, or those that should be of transnational concern? in sum, to take ‘human rights’ as focal is to produce a range of very different questions. what is the meaning of human? is humanity a (factual) foundation, a (practical) limit to what we understand as human rights, or a (moral) limit to what ends can be served by human rights? and when we focus on humanity and the humanitarian must we prioritise international law and if so is this to be taken in its real or ideal form? these kinds of questions lend themselves to wide moral, social and political discussion, which may be part of the strength of human rights. they also point to the fact that any ‘self-limitation’ in the concept of human right is difficult to defend. human rights are not coextensive with our normative concerns, but they come close to touching on most of them. v.3. ‘human rights’ are we concerned with the whole set of possible legal human rights or a sample of typical (or atypical) human rights claims? this is question-begging but it also points to the potential significance of dividing rights that are, and have been, routinely and successfully used as claims against the state, from those rights that are difficult to bring, or less frequently brought, against the state. does such a division signify at least two classes of human rights? the contrast between will and interest theories give us the means to support such a division. will theories, characterising rights by the capacity to bind the will of another agent, trace the normative force of rights to freedom and agency. interest theory locates their value in the value of the interests that they protect. 40 human rights are, in fact, often instances of rights brought successfully against states because states have the capacity to fulfil such rights (will theory). other human rights, less successfully enforced or less frequently used, clearly express interests but are less easily seen as duties. human rights with no obvious correlative duty holder, but having a link to interests, face the criticisms that interest theories often face. 41 we must be in a position to prove that interests are a sufficient reason to hold another to be under an obligation. in the context of state responsibilities, and absent a more comprehensive normative theory, this may be difficult to prove. on the will theory, the nature of the duty-holder is crucial in producing the formal, legal, property demanded of rights, namely their enforceability against correlative dutyholders whose choice of action can be constrained or directed. it is a central problem of focus to ask whether we take the typical duty-holder as definitive of human rights (a ‘vertical’ relationship with the state), or whether other duty-holders, including other private 40 for a version of an interest theory see tasioulas (2012); for a version of a will theory see alan gewirth (1986); for analysis of both see cruft (2004). 41 gewirth (1986). the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 150 individuals, are implied by the concept itself (‘horizontal’ effect). 42 fidelity to the existing ‘complexity’ of human rights suggests that the state should be taken as a central case and horizontal effect treated as over-idealisation. fidelity to the ‘value’ that human rights instantiate suggests that nothing excludes this effect other than the accidental practicalities and principles of existing legal systems. these starting-points, previously problematised as epistemologically distinct starting-positions, should also be thought to be normatively problematic when they recur, in a modified form, in attempts to reconceptualise human rights as ‘moral rights’. 43 the meaning and function of any division between legal and moral rights depends upon the moral, legal or political context in which the division is used. 44 against the backdrop of contractarian theory, the division broadly identifies certain aspects of ‘private conscience’ (moral rights) that, while nominally excluded by an authoritative legal system (legal rights), should be granted respect; this can, but need not, be aligned with the division between selfand other-regarding duties. 45 the same division would have a very different function against a natural law backdrop where the opposition indicates that some moral rights have, rightly, an enforcement mechanism attached to them (legal rights) but that some quasi-rights may also, wrongly, have an enforcement mechanism attached to them (they are nominally ‘legal rights’ but lack moral justification). 46 in contrast, against the backdrop of a separation thesis treating legal rights as distinct on the basis of their authoritative issuance from a social source, authority and normativity do indeed create two distinct, but also two incommensurable, classes of rights. commitment to the separation thesis would indeed bifurcate legal and moral rights, at the expense of also insisting that any justification of human rights is entirely beside the point: they are either authoritatively issued by a social body or not. 47 in essence, any attempt to draw normative certainty from this juxtaposition is frustrated by the range of background claims that give it meaning. we may be able to justify a conception of the meaning and function of moral and legal rights in the context of human rights and use this to identify exemplary instances of such rights. but clearly we are then no longer committed to finding the focal instance of human rights. we are constructing it on the basis of other foundational commitments. two related foundational foci emerge from this emphasis on rights: the question of correlativity, and the question of giving stable meaning to the contrast of moral and legal rights. this yields, in an important sense, a question of perspective. lawyers wish to make 42 gewirth (1986). 43 for an account of the general conceptual characteristics taken to be possessed by moral rights see wilfried hinsch and markus stepanians (2006). 44 hinsch and stepanians (ibid.) rely upon “life, liberty, security” to vouchsafe universal entitlement to moral rights (p. 121). 45 allen w. wood, kant’s ethical thought (cambridge: cambridge university press, 1999), p. 44. 46 deryck beyleveld and roger brownsword, law as a moral judgment (london: sweet & maxwell, 1986). robert alexy, “law, morality, and the existence of human rights”, ratio juris 25(1) (2012): pp. 2–14. 47 joseph raz, the authority of law: essays on law and morality (oxford: oxford university press, 2009). stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 151 sense of there being duty-holders and therefore enforcement, ethicists the possibility of human rights having a non-trivial claim to being both rights and moral. the attempt to determine what is required or relevant to human rights’ foundations collapses here into whether and how we admit competing epistemological and normative commitments to shape our conceptualisation of the phenomenon in question. vi. ‘essentially contested concept’ or ‘saving the phenomenon’? these attempts to narrow the focus of foundational enquiry are not successful because they stand in isolation from foundational forms. they have no supporting epistemology able to justify them as more, or less, relevant to ‘human rights properly understood’. that is, none of these lines of enquiry seems to be conceptually authoritative or decisive because the characteristics of the class as a whole do not exist independently of the claims to necessity found in different foundational forms. form and focus are therefore separable but also indivisible. our normative choices must affect our conceptual choices and vice versa. this is, therefore, to begin to approach the principal question directly: is there a mistaken tendency in analysis of human rights towards reductionism? has the philosophy (and perhaps the grammar) of ‘human rights’ falsely erased crucial divisions between human rights laws, ethically defensible human rights, human rights without foundations, and so on? at the very least, a number of methodological choices are in evidence, none are theory-neutral, and their prima facie defensibility implies a kind of human rights pluralism. we have analysis by definition, focal examples, reconstructions of international practice, distinctive human capacities, and moral rights. these are not only diverse but so epistemologically varied as to make the multiple-perspectives position seem ineluctable. this position can now be recast as a distinctive methodological choice in theorising about human rights, namely to make the choice of focus primary and the form of foundational argument secondary. different choices of focus can be justified, though such justification inevitably also comes at a cost: treating some things generally considered to be human rights as failing to be ‘human rights proper’ (for example regional or domestic laws) or privileging the perspective of ethicists or lawyers (for example in prioritising moral rights or international law). acceptance of this cost is the characteristic trait of both antiand deflationary-foundational positions. but the problem is more acute than this, because concentration on focus reveals the many constructive aspects of our understanding of human rights. it is not simply that the foundations of human rights must be thought to imply at least two dominant perspectives, but that these are themselves the products of choices and commitments. other choices and commitments may be possible. in sum, the problem is more specific than that of multiple perspectives but rather that of the essentially contested concept problem. our concept is, on that account, nothing but the product reconstructive or interpretive practices we are the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 152 already committed to. 48 the alternative to this would be commitment to something like ‘saving the phenomenon’. that is, demanding characteristics that must be found in any defensible foundational reconstruction. 49 a focus on rights and duty-holders will serve as an example of these positions. in commitment to saving the phenomenon we insist upon certain characteristics that must be contained in any ‘recognisable’ account of human rights. we therefore insist that certain characteristics, for example a link with the state and its powers, are conceptually necessary in such an account. but note that, in seeking to insist upon shared and focal characteristics, what is being insisted upon is a reasonable, not definitive, account of the focus of our concerns. the characteristic is not necessarily intended to supply a criterion for identifying all and only human rights, only to insist that an account of human rights without x would fail to reach the standard of being, reasonably, considered an account of human rights. with this commitment we could choose to treat the state, as duty-holder, as focal. this would be amenable to qualified-, deflationary-, and anti-foundationalists. it would challenge any strong foundational argument insisting that correlativity is unimportant for foundations. but, as is implied by the foregoing typology, a strongfoundational position need not be thought of as synonymous with a rejection of correlativity. alternatively, human rights as essentially contested suggests that not only are these foci artificial –they seek to reduce a phenomenologically and conceptually multifaceted concept possessing dynamic real and ideal aspects to a definitive characteristic– but that the concept itself only has meaning within various dynamic practices. the language of human rights must take its meaning from its use and from the historical exemplars that dominate our thinking. in this sense the lawyer’s instance that the state as duty-holder is axiomatic sits alongside that ethicists’ belief that any duty-holder is possible. these are different worlds and only antior deflationaryfoundational forms will accept their coexistence because of their acceptance of the coexistence of different forms of normative necessity. framing this contrast as a contrast between the ‘reductionism’ of saving the phenomenon and the interpretive plurality implied by the essentially contested concept position, we return again to the question initially posed: have philosophies of human rights shown excessive reductionism or do the foundations relevant to human rights admit or require more precision than is characteristic of social explanation? but the choice should now be treated as artificially stark. ‘foundations’, in relation to any social phenomenon, could presumably admit the possibility of both ‘reasonable’ reconstructions and a plurality of perspectives. we can, in other words, reject the essentially contested concept charge if this is taken to mean that a plurality of perspectives on human rights entails that no 48 see note 1 (supra). 49 see alexy (2012). also, in a very different way, john finnis, ‘human rights and their enforcement’, in john finnis, human rights and the common good (oxford: oxford university press, 2011), pp. 19-46. stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 153 reconstruction of human rights can be reasonable. human rights themselves do require and admit some precision in the relevant foundational claims, because the potential foci, while extensive, are not limitless. the challenge of foundational analysis is rather to demonstrate coherence between focus (the claim that a particular quality must feature within an account of human rights) and form (the justification or explanation that renders this necessary). it is precision in this coherence that foundations for human rights demands, not axiomatisation nor, conversely, the layers of explanation appropriate to social phenomena more generally. what types of coherence are possible? the strong foundationalist needs to insist on both saving the phenomenon and a singular, justificatory, perspective. what it cannot do is to claim that this will yield all possible human rights. to be definitive in that sense implies something more than saving the phenomenon. it implies a link between normative necessity and conceptual completeness that the dual requirements of form and focus will not admit. provided the proponent of strong foundations treats their use of human rights as reasonable but not definitive, the essentially contested charge must be rejected for placing an artificially high standard on the phenomenological content, and epistemological exclusivity, of our attempts at justification. for this reason, strong and qualified foundational positions are liable to collapse together at some points. on the one hand, both are liable to demand that a reasonable account of human rights should include ‘non-correlative’ rights. 50 on the other hand, their reasons for rejecting the essentially contested charge may be different. the qualified foundationalist is someone who admits multiple perspectives on human rights and their foundations, but who also argues that there is a singular phenomenon to be saved even if uncertainty will inevitably surround human rights and their foundations. the strong foundationalist argues that, given the reasonableness and coherence of their foundational analysis, such uncertainty is a mistaken manifestation of demanding categorical reassurance where reasonableness is adequate. the deflationary foundationalist is defined by rejecting the normative singularity of the phenomenon and insisting that a plurality of perspectives is permissible. foundational claims only capture one, potential, aspect of our conceptualisation of an essentially contested concept. the anti-foundationalist, then, in accepting multiple perspectives and an essentially contested concept, in the process rejects the idea that the language of foundations captures anything at all. consequently, it is not the case that seeking foundations for human rights involves a rejection of the explanatory pluralism of social explanation. no form of foundation described here must entail, for instance, that historical narratives of human rights’ relationship with democracy and justice are meaningless. this flows from the epistemological claim that no foundational form is tied to the ideal of a definitive justification of human rights. that is, we cannot erase the distinction between form and 50 note the difficulty of situating sen’s work in this respect. freedom is essential for a theory of human rights, but so too are ‘threshold conditions’ of importance and ‘influenceability’ (2004, p. 319). the coherence of human rights’ foundations the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 154 focus such that foundational necessity alone generates the complete class of human rights: we have to make sense of human rights’ history rather than seeing in it a series of failed philosophies of human rights. this also means that the charge of essentially contested concept is defused. demanding a ‘definitive’ concept of human rights is ruled out in favour of a reasonable account. and the problem itself should be treated as over-stated: no existing foundational account, however strong, insists that the class of human rights can be determined exclusively a priori, a point stressed even by staunch defenders of gewirth: “legal idealism, even in an optimal social setting, makes no romantic assumption that the general acceptance of governing moral principles will mark the end of regulatory conflict and controversy, of legal difficultly and dispute.” 51 it is inevitable that examples become important, not merely for their illustrative function but for the coherence of the foundational project pursued. the strong foundational association with examples like the right to life are precisely the kind of focal example that other foundational positions are likely to reject, either as failing to show that a class of rights exist or as failing to exhibit the kinds of formal legal limitations that such a right would be subject to if legislated or adjudicated. the question is, however, whether this focus is reasonable and sits coherently with the formal, epistemological and normative, aspects of the foundational analysis. assuming that it is, any further demand that the phenomenon be saved can be dismissed as seeking too definitive an account. in essence, this coherence between formal and focal aspects reaches the standard of foundational intelligibility without the need for prove that all other conceptualisations are wrong. vii. conclusion the requirement of reasonableness and coherence in foundational claims demonstrates that analysis of human rights does not differ radically from the methods and goals of social explanation tout court. in either case, we need not accept that all forms of explanation are reasonable, and nor need we demand that all reasonable accounts of the phenomenon should yield coherent justifications. however, it is significant that in relation to justificatory philosophies of human rights we do not impose a test of how well the phenomenon is saved. it is defensible to have a narrow focus (for instance the right to life or international political discourse) and insist that only this has a coherent relationship with a conception of necessity. it is testament to primarily normative significance of human rights that whole areas of practice can thereby be defensibly sacrificed on the altar of consistency provided that what we are left with can be granted necessity. so, the methods of social explanation may well be useful in analysing the factors that shape the legal, political, and linguistic practices that surround human rights. but it is the province of foundational accounts of human rights to seek an account that encompasses coherence and 51 deryck beyleveld and roger brownsword, “principle, proceduralism, and precaution in a community of rights” ratio juris 19(2) (2006): 141-68, p. 143. stephen riley the age of human rights journal, 4 (june 2015) pp. 138-157 issn: 2340-9592 155 reasonableness in such a way that our normative commitments remain central. this, however, should not be confused with the ‘definitive’ task of offering a justification that is able to transcend the phenomenon and become conceptually productive of all human rights 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2340-9592 doi: 10.17561/tahrj.n11.1 1 the political, legal and moral scope of the universal declaration of human rights: pending issues* ángeles solanes corella1 abstract: with the adoption of the universal declaration of human rights, a new era began in the recognition and guarantee of human rights in the international area. however, since the moment of its approval, this text has received negative evaluations designed to relegate it to the background. the responses to these criticisms allow us to review their political and legal scope, and put it in value as a reference model in the field of human rights, delving into the pending issues to strengthen it. this is intended, on the seventieth anniversary of the declaration, to insist that this remains an essential bridge to clarify standards that can serve as a basis for discussion between different cultures and ideologies and, therefore, an instrument that each generation must "reappropriate". keywords udhr, political consensus, legal value, moral reference, human dignity, new rights. summary: i. a new era of rights; ii. the difficult political consensus; iii. the legal value of the declaration today and its expansive effect; iv. a possible model of moral reference in the matter of human rights; v. pending issues for the strengthening of the declaration: a future with rights. i. a new era of rights the universal declaration of human rights (udhr) was adopted in new york on december 10th, 1948 by means of resolution 217 (iii) of the general assembly of the united nations. the udhr was created marked by the profound effects of world war ii, after which it was clear that the protection of human rights had to be an essential issue in the agenda of the new organization of the international system. the charter of the united nations (1945) included references to guarantee human rights, to contribute to social progress and improve standards of living. that is why it is not surprising that the preamble of the declaration indicates that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind" so that the objective must be that this situation does not repeat itself. from the initial discussions, the declaration was conceived as an aspiration, as a list of objectives to be achieved by the different states, in line with the preamble "as a common standard of achievement for which all individuals and nations must strive" to promote "respect for these rights and freedoms" and ensure, "by progressive measures *this article is under the research project “diversity and conviviality: human rights as a framework for action” (der2015-65840-r), financed by the spanish ministry of science, innovation and universities, and the european regional development fund. 1 professor of philosophy of law, universitat de valència, spain (angeles.solanes@uv.es). the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 2 of national and international, their universal and effective recognition and observance". thus began a new era in the recognition and guarantee of human rights in the international area that, at this moment, cannot be considered finished. at the time of its adoption, the udhr was a monumental event in international law, subsequently it has also influenced the different regional systems and national legal systems. although it suffers from deficiencies, it cannot be denied that it was one of the first attempts on human rights to articulate the principles by which societies and states would be governed beyond the strict national sovereignty. in that sense, it is a symbol of the recognition in the international system that pure power was not to be the only consideration for determining how governance was pursued and that individuals and societies were deserving of respect and protection and that international law would take a direct interest in these matters (burchill and cavandoli, 2011, 50). it cannot be said that the udhr has fulfilled all its expectations, although a good part of them, even taking into account that the international system for the promotion and protection of human rights that has evolved from the declaration has not only had to compete with other priorities in the international system, but also with the always latent reluctance of the states to the intromissions in their sovereignty in the matter of rights and sensitivities of a cultural and ideological nature. after seventy years of validity of the declaration, the latter has not been able to overcome two of its most common criticisms. the first consists on considering that this text suffers from a westernist perspective, or worse imperialist, which is born marked by the will of the victors, as a unique valid model of behavior. thus, it is emphasized that, at the time of its drafting, the importance of national and regional particularities was not taken into account, nor was there a special sensitivity in the recognition and respect of the different historical, cultural and religious patrimonies. in that sense it can be noted, as santos (2004, 105) does, that there are western or western-liberal bias in the declaration because it was drafted without the participation of the majority of the peoples of the world and prioritized civil and political rights, in such a way that it has been the discourse and practice of human rights of a counterhegemonic nature that have proposed non-western conceptions of human rights, showing that the central task of an emancipatory policy in this field is to transform the conceptualization and practice of human rights from a globalized localism to a project of cosmopolitan nature. a careful, up-to-date and dynamic reading of the udhr does not prevent, in my opinion, overcoming that western perspective, if we focus on the basic aspects of the declaration. in fact, the appreciation of a biased nature of this international text, which carries a certain risk of disparagement, has always been latent because, as eleanor roosevelt pointed out, the documents that express ideals do not impose any burden except to be known by the people, understood and "lived" (glendon 2011, 30). to face this criticism, we must point out the ultimate foundation of the declaration, to its true teleological purpose: the dignity of the person, understood as an ascriptive concept, which prevents the treatment of human beings only as a means, in the line proposed from the kantian categorical imperative. thus, as we will see, the ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 3 declaration is an instrument at the service of that concretion of the ideal of justice, which are human rights conceived from a broad transcultural consensus that is sometimes not very concrete, generic or even diffuse in the effort to bring together wills. the second criticism refers to the udhr’s legal nature, to the extent that it is not a treaty, therefore it cannot be considered as a legally binding instrument by itself. it is also accused of being a mere rhetoric, even justifying speeches at the service of power, which has nothing to do with the reality of human rights. in that sense, attending to that common ideal to which appeals the preamble, as has been indicated, there has been more insistence on its moral and political value than its juridical one, considering it, as maintained by cassese (1991, 51), “a simple reciprocal and solemn promise that committed only in the ethical-political level, but did not involve legal obligations for the states”. however, since the creation of the declaration, voices also accredited, such as cassin's (1951, 293-294), argued that it constituted an authorized interpretation of the charter of the united nations and that it was intended to become part of the general principles of law, so that it could be considered as the reference term to appreciate to what extent the states complied with the obligation of cooperation with the united nations in the field of human rights. the charter established that the united nations and the member states would take measures for the promotion and protection of human rights, and, as will be analyzed, the economic and social council was responsible for establishing a commission to address the protection of human rights that was constituted in 1946 to draw up an international bill of rights, where the udhr would be the cornerstone of this process. the great transformation that the declaration has experienced since its approval and the possibility of carrying out a broad and up-to-date reading of the context in which it must be applied, makes it possible to affirm, as a good part of the doctrine holds, that it constitutes a powerful instrument and that it creates legal obligations for the member states of the united nations. the responses to these criticisms allow us not only to review the political and legal scope of the declaration departing from its nature and binding character, but also to value it especially as a reference model in the field of human rights, delving into the pending issues to strengthen it. with this, it is intended to collect, on the seventieth anniversary of the udhr, the invitation made by eleanor roosevelt to learn about this international instrument of reference, so that the declaration would have greater strength. it is the right moment to insist on its importance, since, as glendon (2011, 27 and 30) maintains, the tension between the global homogenization of forces and a greater recognition of ethnic differences makes it necessary to clarify standards that can serve as a basis for the debate between different cultures and ideologies. to that end, the declaration continues to be an essential bridge, because as an international instrument, it is a living and dynamic text that does not end in a single interpretation, it is linked to the context in which it is analyzed and it must be "reappropriated" in each generation. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 4 ii. the difficult political consensus the charter of the united nations, which was signed in 1945, can be considered the immediate antecedent to the udhr’s adoption, although there are several legal instruments adopted before and after that contribute to explain its ethical, political and legal significance (carrillo salcedo, 2001, 57). the declaration is influenced by what cassese (1991, 31-35) calls “great texts of the past”, from the cyrus cylinder (539 bc), the magna carta (1215) or the general privilege of aragon (1283), to the english bill of rights (1689), the virginia declaration of rights and the declaration of independence of the united states (both of 1766) and the french declaration of the rights of man and of the citizen (1789), to delve into the idea of human dignity (morsink, 2009). in accordance with the provisions of the article 68 of the charter of the united nations, the economic and social council created, on february 16th, 1946, the first commission composed of nine persons individually. this commission was chaired by eleanor roosevelt, which should be valued as an achievement with multiple interpretations, if taken into consideration, also at the historical moment, as she herself would remember, that she was the only woman in the delegation, which would make her feel that an error of hers would be interpreted as a mistake on the part of all women and would reduce the chances of work for them in the future. in fact, her own colleagues from the us delegation confessed that they did all that was possible for the president to keep her out of it (glendon 2011, 69). this nuclear commission recommended the preparation of a draft declaration of rights and the designation of a larger and more plural group. thus, by the resolution 9 (ii) of june 21st, 1946, of the economic and social council, it was decided that the human rights commission should be composed of 18 state representatives, as a subsidiary body of the economic and social council (now replaced by the human rights council, as a subsidiary organ of the general assembly). this option responded, to a large extent, to the reluctance on the part of some states in relation to the establishment of independent bodies with jurisdiction over human rights. as soon as the commission began to work, the first difficulties arose, showing the sensitivity of the topics that were addressed, which were saved by expanding the group and creating a drafting committee that would take up the drafts and existing proposals and would be in charge of sending the project to the commission (pons rafols, 1998, 33). the commission assumed the articulation of a complex process, marked by the ideological and political conflict between different states, which proceeded in different stages and proposals, from the commission’s first session to the presentation of the declaration to the plenary of the general assembly. from the beginning, several difficulties were raised, among them, as the first question, the question of whether a non-binding declaration of rights would be drawn up, along the lines proposed by the united states and the soviet union, or a binding treaty for states as proposed by the united kingdom, belgium, australia and the philippines. finally, it was decided to work on a triple objective and jointly draw up a declaration, a human rights treaty and a ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 5 series of measures for its implementation, although the most intense and fruitful work was carried out on the text of the declaration (del toro huerta, 2012, 50). despite the problems that it had to face, the udhr constituted a kind of balance and political consensus among the different positions that existed in the international community around the difficult issue of human rights. at the request of poland, it was decided to vote separately on each paragraph of the preamble and the different articles of the project. the second, third, fourth, fifth, sixth and seventh paragraphs of the "preamble" and articles 3 to 12, 14 to 17, 20 to 25, 27, 29 and 30 were adopted unanimously, while the final vote on the whole of the declaration obtained 48 votes in favor, none against, and eight abstentions (saudi arabia, belarus, czechoslovakia, poland, yugoslavia, ukraine, soviet union and south african union), with the absence of two of the state representatives (honduras and yemen) in the moment of the vote. the abstention of saudi arabia is considered especially significant because it expresses the reservations to the declaration dictated by the muslim cultural tradition in matters of religion and family life that have continued to be maintained. in any case, those who opposed the approval of the declaration opted to abstain without tarnishing a large majority that did not receive direct opposition (pons rafols, 1998, 40-41). the reasons why states abstained from voting were diverse. in the case of the south african union, it refused to include social rights and limited the scope of nondiscrimination principle in defense of the apartheid system; saudi arabia, opposed to recognize religious freedom and equality between men and women, regarding the right to marriage; and the soviet bloc, composed of belarus, czechoslovakia, poland, yugoslavia, ukraine and the soviet union, opposed ideological questions to the incorporation of certain rights, in accordance with the principle of non-intervention, for not taking into account the sovereign rights of the states, the principle of selfdetermination of peoples and the duties of the individual before the state, highlighting the lack of mechanisms to implement the rights recognized in the declaration (morsink, 1999, 21-28). out of the eight abstentions, today seven can be considered widely surpassed after the end of the cold war in 1989, which facilitated the adhesion of the states belonging to the at the time socialist bloc to the values represented in it and the end of the apartheid regime in southern africa (villán durán, 2018, 114). as glendon (2011, 28-29) recalls, the texts proclaiming that all human beings are born free and equal and that governments are responsible for protecting these freedoms, elaborated the modern language of law that was basically branched into two discourses: the european and the anglo-american. the first, under the influence of authors such as rousseau, was oriented towards freedom and fraternity, considering the state as the guarantor of rights and leveling the latter with duties. in the second, the anglo-american language on law focused on freedom and individual initiative, with a marked distrust towards the government. when the latin american countries became independent in the 19th century, these perspectives were mixed. in addition, states such as the soviet union adopted a different perspective prioritizing equality over freedom. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 6 these different approaches had to be synthesized to make it possible for a declaration with the pretension of being "universal". for this purpose, it was based on such basic principles that no state dared to openly discredit them, which implies a strength and at the same time a weakness of the declaration that did not prevent it from displacing the documents that preceded it to become the main model of the current legal instruments. the declaration establishes the bases for the protection of human rights and is structured, in the words of cassin (1951, 267), in what he calls the "four columns" and the facade, which make up the "portico" of the declaration. the first column is formed by the rights and freedoms of personal order (articles 3 to 11); the second, by the rights of the individual in relation to the groups of which he is a part (articles 12 to 17); the third is constituted by political rights (articles 18-21); and the last refers to economic, social and cultural rights (articles 22 to 27). on these four columns there is a frontispiece, the articles 28 to 30, which indicate the links between the individual and the society of which they are a part. after the declaration’s adoption, the general assembly recommended that the states published the text and arranged for it to be distributed and exposed to make it known. until the approval of the international covenants on human rights of 1966 (international covenant on civil and political rights, iccpr and international covenant on economic, social and cultural rights, icescr), the udhr was the only document of international reference to face the challenges in the area of human rights. subsequently, international human rights law was developed, consolidating this process started with the declaration that can be considered as humanization and internationalization of international law, affecting those that can be considered as the three aspects of international protection of the rights of human beings: human rights, humanitarian law and refugee law (cançado trindade, peytrignet and ruiz de santiago, 2003). the first step that the declaration took has been completed with a thematic specialization supported by the human rights commission, the economic and social council and the general assembly, and by proposals at the regional level and also coming from other international organizations such as the ilo or the unesco. this specialization process has tried to address specific situations or respond to certain groups, following the guidelines of the udhr and the international human rights pacts, beginning with a text that generally includes certain rights and subsequently a treaty with a binding nature for the states parties, with monitoring and implementation mechanisms (del toro huerta, 2012, 56). the reticence of a political nature that had already been revealed at the time of the vote on the declaration, linked to religious issues, has persisted. thus, the states of the organization of the islamic conference (later called the organization for islamic cooperation) adopted the cairo declaration on human rights in islam, on august 5th, 1990. in 1997, this group of states maintained that the recognition and total respect for the world's main legal systems, including islamic jurisprudence, is essential for the promotion of universality postulated by the udhr; it advocated the codification of the ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 7 islamic norms and principles included in the cairo declaration in a universally recognized islamic human rights instrument and promoted the adoption of common positions in international human rights forums, in defense of the values embodied by the islamic sharia (villan durán, 1998, 80). in the subsequent summits of the organization for islamic cooperation, as the one held in 2016 (istanbul) and the one announced for 2019, the question of the protection and guarantee of rights is directly related to issues such as security and terrorism. it has never been easy to reconcile the universality of human rights that the declaration proclaims with the aspects that are presented as difficult cultural particularisms, which question the general standards of protection, that is precisely the limit for the acceptance of these specialties. precisely in the establishment of given limits that respect the principles established in the udhr in the international scope can be appreciated, as well, the level of democratic institutions, since, as beetham (1999, 24) states “it is only by grasping the underlying principles involved that we are able to assess how far a given institution is democratic in practice, and what else might be required to make it so”. the high level of politicization, to which the declaration was submitted, continues to be present in many aspects related to the recognition, guarantee and protection of human rights. as villán durán (2018, 115) points out, that strong political tendency and the absolute majority of the african and asian states within the human rights council (with a total of 26 votes out of 47), can make us fear for the future of the valuable special procedures system. in this regard, the council is increasingly hostile to geographical mandates. states interested in the study of the situation of human rights in a country in difficulty prefer it to be carried out by the high commissioner because it is not an independent expert, but a senior official of the organization, or simply that no such investigation is carried out. certainly, it is possible that the political and moral importance of the declaration from the outset would even surpass its specific legal significance. as von bernstorff (2008) recalls, in the 1980s, the declaration embodied the hope for a new era of human rights protection after the end of the cold war, while during the 1990s a new defense of the declaration’s universal character was observed, also examining its institutional limitations. in general, the udhr can be considered as a synonym for the importance of individual rights in international law, in such a way that, faced with a sense of crisis due to institutional blockages, it receives, again, an increasing attention. indeed, the declaration can be seen as symbolizing unity in an increasingly fragmented and controversial institutional and political environment for the international protection of human rights. in addition, the human rights recognized by the declaration can be seen from the perspective of habermas (2010, 118) as a "realistic utopia" to the extent that they cement the ideal objective of a just society in the constitutional states, yet they introduce certain tension. thus, the human rights policy of the united nations shows the contradiction between the expansion of the rhetoric of human rights and its abuse as an the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 8 instrument of legitimation for the usual politics of power. this is why it is essential to insist on the role that the united nations’ system must play, through the progressive international codification in so far as it allows, to specify the obligations of the states themselves, and also as a way of measuring the progress made by the states themselves within the field of human rights. this political dimension is undoubtedly essential in the field of human rights, as has already been noted in the studies prior to the approval of the udhr. in this sense, authors such as baynes (2009, 7) insist on their eminently political conception because they are conceived as rights within the political community, affirming “according to some theorists, human rights are to be viewed as part of a ‘realistic utopia’, according to others as constraints obligating any coercive social institution, and others still as basic conditions for membership in any political society. i refer to each of these approaches as political”, which, in my opinion, is not exclusive, but rather complementary of its legal and moral dimension. iii. the legal value of the declaration today and its expansive effect the repeated discussion about the declaration’s legal value stems from its nature and its questioning binding character. regarding its nature, the fact that it is a resolution does not necessarily mean that it does not currently have a binding value. indeed, in the practice of the united nations "a declaration is a formal and solemn instrument that is used in very special cases, in matters of great and real importance and when maximum observance is expected from the largest number of states possible (...) principles are formulated that are of great importance and lasting value, as in the case of the declaration of human rights" (memorandum of the office of legal affairs of the un secretariat, doc. e / cn. 4 / l.610). already in the early years of the declaration, lauterpacht (1950: 150) noted that “it would be contrary both to these requirements (of good faith and of decency) and to the principle of effectiveness if the repeated and solemn provisions of the charter in the matter of human rights and fundamental freedoms, coupled with the clear legal obligation to promote respect for them by joint and separate action, were interpreted as devoid of the obligation to respect them”. it is true that the resolutions adopted by the general assembly of the united nations do not have a strong legislative character a priori, which means that they are not adopted as binding instruments and, in that sense, they lack binding force. however, this does not mean that it does not have legal effects linked to its material importance, its evolutionary interpretation, its progressive development, and the reference to programmatic principles that end up becoming a reference of the evolution of general international law in such a way that crosses the field of soft law to reach hard law. in general, the legal value of a declaration is conditioned by the intention to enunciate legal principles, the majority by which it has been adopted, its content, and ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 9 the subsequent practice of the states. the udhr has, initially since its adoption, two legal effects linked to the duties established in the charter of the united nations in the field of human rights. on the one hand, the formation of a principle of international law consisting of the general obligation of states to respect and protect the human rights of individuals subject to their jurisdiction; and on the other hand, the restriction of state sovereignty in accordance with the principle of respect and protection of such rights (carrillo salcedo, 2001, 57). the legal value of the declaration can be explained with three theories (oraá, 1999, 185) that are not necessarily mutually exclusive. a first theory holds that the udhr can be considered as an authorized and authentic interpretation of the charter of the united nations in the field of human rights. this interpretation is reinforced by the fact that the various organs of the united nations constantly appeal to it when they apply the clauses of the charter, for example, the general assembly in several of its resolutions, the commission on human rights and the subcommittee, and the special rapporteurs, among others. in reference to the declaration, in the key of authority and referent, the jurisprudence of the international court of justice of the hague is also situated (from famous cases such as barcelona traction). from a second perspective, it can be considered that states have incorporated many of the clauses of the udhr in their domestic legislation and cite it in a continuous manner. this has generated a rule of customary law that does not affect all articles, but a significant part of them. it could even be considered as a rule of ius cogens or peremptory norm of general international law (lepard, 2010, 318) according to what is established in article 53 of the vienna convention on the law of treaties. according to what is established in said precept, it could be considered as "a norm accepted and recognized by the international community of states as a whole as a norm that does not admit agreement to the contrary and that can only be modified by a subsequent norm of general international law that has the same character". in the relation between treaties and custom, applied to the declarations of the general assembly proposed by jiménez de aréchaga (1980, 19-42), three types of effects can be distinguished: the codifier, insofar as the declaration could be considered as the compilation of pre-existing standards; the crystallizer, so that the declaration would collect in writing a custom that was being formed and, in doing so, it would be crystallized into a customary norm; and, finally, the generator, which would allow the declaration to be considered as a new norm that constitutes the starting point of a subsequent practice of the states, making it become a rule of customary law. as maintains a part of the doctrine (oraá, 1999, 188 and del toro huerta, 2012, 71) it is appropriate to consider that, rather than having an encoder or crystallizer preexisting rights effect or being in statu nascendi (since the charter does not contain any list of rights), the declaration can be conceived as a document generating legal norms of lege ferenda. in this sense, since it is the first international document of universal and general character on human rights, it is sought that it undoubtedly contributes to its the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 10 internationalization, since, up to now, said matter belonged to the states’ internal jurisdiction. the subsequent practices of both the states and the organs of the international community in relation to the declaration meet the requirements so that it can be considered as a customary norm, insofar as both the material or objective element regarding the subsequent practice, repeated, constant and uniform, as the formal or subjective element as regards opinio iuris. in this sense, by placing the charter and the declaration on the same level, the conviction of the states regarding the mandatory nature of this is evident. to this is added the fact that many of the countries have directly or indirectly taken the declaration as a model or reference in their constitutions (especially in the countries that achieved their independence after the 1950s), laws and policies in defense of the human rights. likewise, the different final documents of relevant conferences, such as the proclamation of tehran (final act of the international conference on human rights, tehran april 22 to may 13, 1968, document nconf.32 / 11) and the vienna declaration (world conference on human rights in vienna on june 25, 1993, document a/conf.157/24), among others, insist on adhering to and acting in accordance with the charter and the declaration. a third possibility would be to consider the declaration as general principles of law in such a way that they would be considered as a source of international law according to article 38.1.c of the statute of the international court of justice, which would not allow its normative character to be questioned, along the lines that was already noted that were held, for example, by cassin. whichever interpretation is chosen, all of them lead to highlight the general consensus on the part of states about the mandatory nature of the udhr. there is, however, an open debate that not all articles of the declaration are equally binding for all states, as a consequence of the general acceptance of the declaration. this debate connects with the differentiation established in the pacts of 1966 and the positions that consider that the obligations that generate, on the one hand, civil and political rights, and economic, social and cultural rights on the other, are different, instead of understanding that human rights are universal, indivisible and interdependent. alston (1990, 1) affirms that the declaration has a "revolutionary content", precisely because it includes economic and social rights as part of the basic rights, considering them indivisible to the rest of human rights, therefore setting an important precedent. the two international conferences on human rights already mentioned insisted on relevant issues, such as the nature and normative scope of the universal declaration, with special mention to the interdependence of rights as well as their universality. indeed, in the first of them, the proclamation of teheran was approved, and in its second paragraph it was affirmed that the udhr "states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community". in the same line, in the second conference the vienna declaration and programme of action were approved, which emphasizes in its fifth paragraph that "all ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 11 human rights are universal, indivisible and interdependent and interrelated". this reaffirms the questionable indivisibility between political, civil, cultural, economic and social human rights, considering them as a set that must be promoted and protected. both conferences served to reaffirm the ideas of universality, indivisibility and interdependence of human rights that have been subsequently confirmed in multiple international provisions. however, until 2008, the general assembly did not transfer the vienna declaration to positive law through the adoption of the optional protocol to the icescr. as villán durán (2018, 116) recalls, said protocol constituted a historic milestone in the real equation of all human rights, since it recognized the justiciability of economic, social and cultural rights at the international level, by enabling the desc committee to receive individual complaints for alleged violations of any of the rights enshrined in icescr. the ratification of the protocol as affirmed by añón (2010, 41) can be interpreted as a way to assume, on the part of the legislator, new obligations in relation to social rights and a gesture of recognition of their relevance as human rights. in the words of the aforementioned author "it is a feasible legal perspective that involves recomposing the principles of the social and democratic state of law and the institutional role of legal operators linked in their daily activities to the purposes of this model of state". the declaration, therefore, has been a decisive text for the guarantee of human rights insofar as it was elaborated through a negotiation that implies a broad, although not unanimous, consensus on the fundamental nature of its content and has allowed the promotion of instruments later, strengthening its binding dimension. however, the pending issue of human rights today is not so much to proclaim them as it is to protect them, since it is obvious that the more respected the declaration, the greater its degree of effectiveness and legal influence. in any case, among the objectives of the declaration, both in its origins and that persist today, there is not only the intention to create instruments of jurisdictional protection, but rather the will to express those rights inherent to the dignity of the person, since, as will be analyzed below, it also serves as a standard and valuation fee. beyond the legal instruments, and the development thereof, which have emerged from the basis of the declaration, the latter has an expansive effect that has to do with the different programs that are developed from the united nations and with the creation of a jurisdictional mechanism. both initiatives connect with the article 28 of the declaration when it states that "everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration cannot be fully realized". with regard to the first issue, both the charter of the united nations and the declaration, as noted, have already shown the importance of the promotion and internationalization of human rights. this has also been transferred to the strategies of cooperation and international development as an indispensable estimation for the construction of peace at a global level. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 12 on the basis of the aforementioned article 28, the general assembly of the united nations proclaimed in 1986 the right to development as an "inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized" (declaration on the right to development, resolution 41/128, of december 4, 1986). thereon, within the united nations development programme, different initiatives have been finalized. as verdiales lópez (2018, 77) recalls, with the creation of the millennium development goals (mdgs), the possibility of incorporating human rights into each of their strategies was contemplated, even though it was not really achieved that human rights would have a relevant role in the development of said objectives. the redefinition and expansion of these is proposed through the sustainable development goals, which insist on the importance of the central role of human rights to ensure respect for human dignity and international justice. the 2030 agenda for sustainable development, the basis of the objectives, departs from the "leaving no one behind" claim and reaffirms the importance of human rights and the responsibility of states to respect, protect and promote human rights and fundamental freedoms of all people without any distinction, in accordance with the charter. in the same line as article 28 in relation to the full effectiveness of rights, the international legal order includes specific conventional instruments related to the protection of rights and binding for states parties, among them the statute of rome (1998) which established the international criminal court. as herrera carbuccia (2018, 542-546) points out, the legal value of the universal declaration of human rights in international standards on human rights has been and continues to be essential in terms of the administration of justice. it is fundamental to point out the role of the international criminal court in the application and interpretation of international human rights norms and resolutions adopted by the general assembly of the united nations. the court is the first permanent international criminal court with jurisdiction over the most serious crimes related to the international community. it is a reminder for the states to prevent and stop armed conflicts, contributing to the prevention of international crimes, to international peace and to the protection of the fundamental values of human dignity and life. as stated in the preamble to the rome statute, today more than ever, the recognition and effective protection of the rights enunciated in the universal declaration of human rights are of vital importance in international law, to guarantee respect for due process and an independent and impartial administration of justice that allows creating a world in peace, security and well-being. iv. a possible model of moral reference in the matter of human rights as has been stated, the declaration is the symbolically most relevant instrument in the world on human rights. given its universal vocation and its innovative nature at the time it was drafted, it constitutes a symbol of a protest against infamy, barbarism and any form of collective or individual dehumanization. the declaration also ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 13 symbolizes a proclamation in favor of each person’s dignity, a tool to stimulate the conscience of humanity, motivate protest and social resistance, within the very limits, principles and values that define human rights (del toro huerta, 97-98). moreover, the declaration incorporated, within the very idea of universality, the existence of a heritage and common interest of humanity. as cançado trindade points out (2010, 349), conceptions of the common heritage and of common interest of humanity embody the universal solidarity and social responsibility that emanate from human consciousness (not the will of states), and reflect basic values of the international community in a way that allow it to be strengthened in the face of a fragmented vision. thus, it is possible “to face the new global challenges to the international community as a whole, and indeed to all humankind, and to provide adequate and satisfactory responses to them, which the systems of positive law by themselves simply cannot do”. the main features of human rights that, as has been pointed out, are identified in the universal declaration, such as universality, interdependence and indivisibility, make it a living and symbolically relevant instrument, but its fundamental moral scope lies in the idea of human dignity; these traits emerge from it. in the first place, as regards the idea of dignity, it is present in both the charter and the declaration. dignity is mentioned at the beginning of the un charter: “we the peoples of the united nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small...”. the article 1 of the declaration provides: “all human beings are born free and equal in dignity and rights”. in other human rights instruments, as are the aforementioned 1966 pacts, the convention on the elimination of discrimination against women, the convention on the rights of the child and the vienna declaration and programme of action, the word “dignity” is connected with equality and the idea that human dignity, which belongs to everyone equally, is the source of all rights. as habermas (2010, 108 and 111) rightly states, human dignity is not a qualifying term adopted by the declaration, but the moral source from which the contents of all rights are nourished. from the very beginning, there has existed, albeit implicitly, a close conceptual relationship between both notions. this author is right when he highlights the catalytic role played by the concept of dignity in the composition of human rights based on rational morality and in the form of subjective rights. in my opinion, habermas' reference to the notion of human dignity is fully evidenced in the declaration, thus affirming that human dignity allows the equal universal content of morality to be imported into the right, is, therefore, the conceptual hinge that relates the moral of equal respect to each subject and the positive democratic right. dignity with this moral basis has also played a fundamental political role. since the adoption of the declaration itself, as mccrudden (2008, 722-724) points out, this concept has allowed different cultures, with very different conceptions of the state, the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 14 different points of view on the foundation of human rights and diverse ethical and moral perspectives have overcome their ideological differences, focusing on the specific. in that sense, he maintains, however, that "everyone could agree that human dignity was central, but not why or how". the concept of dignity can be questioned from different interpretations, but if we look at it as the moral foundation on which the udhr is based, we should refer to a basic minimum content of the meaning of human dignity. in the words of said author: "a basic minimum content of the meaning of human dignity can be discerned: that each human being possesses an intrinsic worth that should be respected, that some forms of conduct are inconsistent with respect for this intrinsic worth, and that the state exists for the individual not vice versa. the fault lines lie in disagreement on what that intrinsic worth consists in, what forms of treatment are inconsistent with that worth, and what the implications are for the role of the state". certainly, there was no need for a more specific common theory, which would exceed that minimum basic content, for the political acceptance of the charter and the declaration, not even for the acceptance of subsequent texts on human rights at the international, regional and national levels. moreover, as was seen when analyzing the political-historical framework in which the declaration emerged, possibly the attempt to generate a greater consensus could have produced counterproductive results. that minimum character, as mccrudden points out, does not facilitate judicial interpretation of the specific rights that were promulgated, but facilitates substantive meanings, namely, "providing a language in which judges can appear to justify how they deal with issues such as the weight of rights, the domestication and contextualization of rights, and the generation of new or more extensive rights". it is precisely in the development of this function that the udhr and the set of human rights texts that have developed it can have a relevance in the judicial field that is conjugated with the role that it played at the time of approval in the philosophical, political and legal debate. as carozza (2008, 937) also recognizes, the different articles of the declaration do not provide the specificity necessary to make difficult decisions about how to balance, let's say the rights to which it refers, in such a way that, in any case, the requirement to specify the content of human dignity does not eliminate the need for a judicial interpretation that goes beyond the minimum core of the concepts. as correctly, in my opinion, this author recalls, and in the face of the criticism raised by mccrudden, even if there was no international agreement on some aspect of the minimum requirements of human dignity, there may be good reasons to affirm its validity, the same way that the mere existence of an international consensus on human dignity, per se, is not enough. from my point of view, the essential question to admit that human dignity is that moral source on which rights are nurtured and in that sense the foundation of the declaration, is to take into consideration that the idea of dignity makes reference, as both authors recognize, to "the ontological claim that each human being has inherent worth as an individual person" in such a way that, on a moral plane, dignity exists independently of a consensus on its meaning and its content. regarding the second relevant issue about the moral dimension of the declaration, the debate on the scope and the claim of human rights’ universality in it ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 15 was already put into question at the time of its drafting and marked some of the abstentions as has been pointed. today, the universality of human rights continues to be questioned from the ideological and cultural dimensions that stress its implementation, making its full validity difficult, either due to restrictions imposed under the protection of some cultural relativisms or because of false universalisms. the debate between relativism and universalism is very broad and can be used to question several rights. in summary, it can be located at three different levels (del toro huerta, 2012, 100): from the interstate perspective (for example, the positions of some islamic governments against western governments); the intrastate (with respect to the claims of minority groups or indigenous or tribal peoples within the state sphere), or the intrasocietal (from the perspective of gender, or the demands of the community of transgender, lesbian, gay and bisexual people who question conceptions within of the same culture or society). this debate is interesting as benhabib (2011, 57-77) masterfully exposes different types of universalism: essentialist universalism, justificatory universalism, moral universalism, and juridical universalism, to be able to bet on a cosmopolitan project that allows to go beyond the current philosophical universalism. universality as a feature of the concept of human rights, along the lines proposed by the declaration, implies both universality in the holders of the rights and in the subjects bound by them. this is a direct consequence of the kantian requirement of the moral imperatives’ universality, but one that transcends this scope with positivity, internationalization and the specification of rights. in this sense, it is important to remember, as pointed out by peces-barba (1994, 614-615) that the universality of rights can be approached from three perspectives: logical, temporal and spatial. in the first case, reference is made to "an ownership of the rights that are ascribed to all human beings. its features are rationality and abstraction, congruent with that ownership of all men", in a current language, of all people. temporal universality would imply that rights "have a rational and abstract character regardless of time and valid for any moment in history". finally, the spatial field refers to "the extension of the culture of human rights to all political societies without exception". it is precisely this first meaning of universality that allows us to situate ourselves in the realm of morality. as ansuátegui (1999, 214-215) maintains, in this dimension, the strong symbolic burden of the declaration could be contrasted and it would acquire a special meaning, the very declaration and the universality of the rights that it consecrates, provided that it is understood that this universality refers to the framework of moral discourse, as what, in my opinion, can be considered a moral reference that influences other international documents, previously mentioned. on the other hand, in relation to the law, said universality would be a tendency, understood as an aspiration. therefore, the universality of human rights is not a matter of fact, but a claim referring to the "universalizable" nature of rights, or, the same way: the aspiration to formulate them in such a way that they are susceptible to acceptance which, in turn, can be admitted as universal. we situate ourselves, therefore, within the framework of a prescriptive and non-descriptive discourse in relation to the universality of rights. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 16 universality would be a point of arrival, a goal to reach. this approach is fully compatible with what was expressly stated in the preamble of the declaration and with its spirit, being consistent with the initial efforts to obtain its approval. in addition, it is important to keep the role of human dignity in mind, regarding the change of perspective from moral duties to legal rights and also in the promotion of that trending universality. as habermas (2010, 113) points out, the modern theories of rational morality and rational law rest on the fundamental concept of the individual autonomy and on the principle of equal respect for all. this common base is fundamental but it cannot be forgotten that, while morality imposes duties that cover all spheres of action, modern law creates spaces of freedom for private arbitration and the development of individual life, not duties but subjective rights, the ones that form the basis for the construction of the legal system. in the declaration both approaches find their place. on the other hand, the universality proposed by the udhr regarding human rights is neither homogenization nor globalization. in the first place, it is not homogenization because it cannot be conceived as the imposition of a majority culture or the lack of respect for minorities, it cannot be the expression of the rule of the majority that can be imposed by the tyranny of the majority. it is in this sense that it can be affirmed that the democratic system has, as its basic premise, respect for human dignity and, along with it, the universality of rights. that is why the udhr is considered a revolutionary instrument within the framework of international law to the extent that it represents a first effort to restrict the action of governments to promote and protect human rights over state interests. in the same vein, an international law of democracy in the post-cold war period has been developed that has also determined the nature of international law and relations. in both cases, the objective is none other than "to promote social progress and better standards of life in larger freedom, ideas and practices that are central to the appropriate understanding of democracy" (burchill and cavandoli, 2011, 46). in addition, universality, as conceived by the declaration, is not compatible with globalization. as de lucas (2008, 57) rightly explains, the hegemony of financial globalization and the absence of control favor the nexus between globalization and social exclusion, which is the negative result of globalization for most of the human beings that do not belong to the reduced group of process agents, of those integrated in globalization. moving forward in legal and political globalization is, therefore, a necessity if we want to avoid the most devastating effects of the neoliberal ideology professed by the dogma of deregulation. faced with the exclusive financial globalization, incompatible with universality, a globalization that demands progress towards the ideal of cosmopolitan democracy is urgent; and at the same time a legal globalization, in particular, of justice and human rights. from this other conception of globalization, still conceived as an ideal, the declaration can continue to be the engine to invigorate the universalization of human rights and to reinforce them. ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 17 v. pending issues for the strenghtening of the declaration: a future with rights the udhr, in addition to supposing a radical turn for the conception and evolution of the human rights at international level, today continues being just as significant, or more, politically, legally and morally than when it was approved, even though with all the efforts made also by the instruments that make up international human rights law, there are still violations. securing and guaranteeing rights continues to be a work in progress in the three dimensions analyzed. from the political point of view, just like at the time of the declaration, the role of the states in the international and national dimension, ad intra and ad extra, remains essential, even more so with the impact of globalization. as brown (2016, 72-73) recalls, the states have assumed their role as guarantors of the rights of everyone: civil, political, social, economic and cultural, fulfilling their obligations. the special position of the countries is not only a matter of effectiveness and control, but also a form of legitimacy that distinguishes them from other entities and agencies. the udhr and the conventions aim to impose conditions based on human rights to this legitimacy, in this sense the human rights regime initiated by the udhr was conceived as a basis, not only for subsequent international conventions and agreements, but also for legal systems of the states parties. in a globalized world, in addition, states must commit themselves internationally to respect and guarantee the human rights of people in and beyond their borders, for several reasons: the effect of the state’s own policies and actions on other countries; the impact on other countries of the way in which it participates in international institutions; provision and efficacy of development aid; and the response to rights abuses in other countries, either by criticism and public denunciation or, as a last resort, by intervention and support for intervention. insisting on the relevance of the state dimension, within the international community, in continuing the path initiated with the udhr and the subsequent instruments means claiming the need for policies for the implementation of human rights and the incorporation of the human rights approach in those. in addition, it also means fighting decisively against one of the phenomena that most contributes to expanding the fierce reality of human rights violations: impunity. that fight against impunity is also a commitment to democracy and respect for the person’s dignity, that idea that we saw, which is at the base of the udhr and human rights. the words of cassese (1991, 150), when he said that “democracy means respect for the dignity of the person; torture means humiliation or annihilation of that dignity. for this reason, torture nests in all non-liberal states or in the authoritarian retreats of democratic state structures”, are still relevant. beetham (1999, 89) is right when he argues that if we adopt a holistic vision of the udhr, as has been proposed in this paper, it is possible to construct the parameters of democracy and establish objectives for governance systems and governance. civil and political rights are an integral part of the basic functioning of a democratic system and social and economic rights are crucial for the effective exercise of democracy. since the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 18 the udhr covers rights and indicators for democratic governance, it provides a solid foundation for the international law's definition of democracy. in the legal dimension, since the drafting of the udhr there has been an imbalance in the treatment of different rights, initially giving priority to the development and mechanisms of international control of civil and political rights. in the rights included in this group there are still human rights violations that have to be persecuted, but there are also rights that, from the moment of the declaration, were recognized in a deficient manner. in that sense, freedom of movement and the right to asylum are two good examples of rights recognized in the declaration in an insufficient manner. thus, the article 13 udhr does not recognize the right of entry, nor the individual or collective immigration, just as the article 14 udhr does not attribute to the person being persecuted the right to obtain asylum in another state other than that of their nationality, but simply to look for it and enjoy it. this meager recognition is largely due to the number of rights related to freedom of movement and asylum, among others, the principle of non-discrimination or the right to a nationality. in addition, as was already evident at the time of drafting the declaration, the concretion of these precepts directly affects the exercise of the sovereignty of states, mainly if such sovereignty is conceived as absolute. therefore, in the conventional framework, and, in particular, at the national level, immigration and immigration legislation limit the right to free movement and residence for reasons such as national security, general interest, public order, health or public morals and even the situation of the labor market. in the same vein, the right of asylum, although basically developed in the convention on the status of refugees (geneva, 1951) and its protocol (new york, 1967), refers to a refugee concept in need of revision in order to respond to current needs. in addition, within the asylum, the basic principle of non-refoulement, is questioned before the difficulties at the time of specifying aspects as basic as the notion of a safe third country. with all this, there is insistence on the error of not recognizing the deep political dimension of this reality, denying rights (de lucas, 2017, 65). as regards economic, social and cultural rights, as has already been discussed, those were relegated to the background until the vienna declaration and the protocol to the icescr. this protocol recognized, as we pointed out, the international justiciability of the escr, the next step to strengthen the recognition and protection of these rights is to encourage the ratification of the protocol; the fact that it is still very low (23 states in 2018) evidences that there is still, as in the moment of approval of the udhr, a great reticence on the part of the states in the real comparison of both types of rights. other rights, such as resistance against oppression, were not accepted for inclusion in the drafting process of the udhr, as proposed by some delegations, including cuba, chile, france, and the soviet union (morsink, 307-312). the final report of unesco, derived from the consultations carried out during the drafting process of the declaration, referred to the "right to rebellion and revolution", which does not appear in the final text either, when the government would not comply with the fundamental principles of justice and would not respect fundamental rights "in such ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 19 a way that could not correct such abuses by peaceful means", before which there would be the right to establish "a government that is more in conformity with justice and humanity". however, an integrated reading of the whole of the udhr articles allows us to include this idea and maintain from the preamble that it is "essential that human rights are protected by the rule of law", so that people do not feel compelled "to have recourse to rebellion against tyranny and oppression" taking into account that, according to the article 29.3 of the declaration, rights and freedoms may not be exercised in opposition to the purposes and principles of the united nations (del toro 2012, 98). also, the limitation established by the article 30 is important in order to establish the parameters of a democratic society. this final clause protects the rights established in the declaration against possible attacks that may come from the state, groups of people or individuals (burchill and cavandoli, 2011, 58). in the line of impulse to the rights recognized by the udhr, villán durán (2018, 116-117) is correct when he points out that a current reading of the declaration, with projection in the international community of the 21st century, also demands the aforementioned development of the article 28, to claim what it calls the human rights of solidarity or "synthesis", departing from the essential interdependence of human rights. from this perspective, it is possible to promote the right to peace, the economic and social development of the people or the right to the environment. these last claims of rights not expressly contemplated in the udhr (which makes sense considering the historical moment in which it was drafted) are in line with the approaches that we have already indicated that are supported by the 2030 agenda for sustainable development. human rights must be the foundation of progress towards a more just, democratic and equitable international community that can take on the challenges of peace, security, sustainable development and respect for rights from the pillars already established in the charter of the united nations. precisely, the great challenge of building the right to peace requires, in my opinion, to insist, as cançado trindade underlines (2010, 360), in the lack of examination of the bases for peace within each state and the role of non-state entities. certainly, i suggest that there is a need to achieve social justice within and between nations, an "urgent need to put an end to the tendency to separate economic development from social development, macro-economic policies from the social objectives of development". likewise, it is essential to value and promote the growth and consolidation of international jurisdictions, as well as the conferences and forums promoted by the united nations. precisely, one of the outstanding issues to strengthen the declaration as a reference instrument and, above all, to guarantee the human rights recognized by it, is that of a further consolidation of the international criminal court, deepened in issues, such as the number of states that have ratified its statute, and also the relevance of the fact that some of those who have the right to veto in the security council have not done so. in the same way, it would be interesting to debate the role assigned to individuals before said court and the type of crimes (hitherto genocide, war and against humanity, but not, for example, terrorism) in case it would be possible to include some of the ones that are not contemplated right now. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 20 from the moral dimension, as a model of reference in the field of human rights, the declaration is called to continue to play a relevant role. at a time like the current one, where it is no longer possible to deny the impetus of international human rights law, it is important to avoid what habermas (2010, 120) calls a "soft deflation of human rights". it is a matter of avoiding a minimalism that separates human rights from their essential moral impulse, which is none other than the protection of the equal human dignity of each one. it is necessary to avoid the perspective that reduces the issue of human rights to matters strictly of international politics, in such a way that it obviates the relationship of tension within the state between universal human rights and rights of the individual citizen. this political vision is essential, as is also the legal one that erroneously strengthens the separation (and therefore exclusion) through criteria such as nationality and citizenship (as we pointed out with regard to freedom of movement and the right of asylum). the moral basis of human rights, clearly since the udhr, assumes that each one, as a subject of the same rights, is respected as of their human dignity. the aim is to strengthen this "new ethos of our times" (cançado trindade (2010, 622) that human rights constitute, based on the momentum created by the declaration and the progressive development of international instruments. the udhr cannot be considered an outdated or exceeded text; on the contrary, it was an instrument of transformation and it remains, in its 70th anniversary, an engine for the always unfinished struggle for rights. references ansuátegui roig, francisco javier (1999), “la declaración universal de derechos humanos y la ética pública”, anuario de filosofía del derecho, nº 16, pp. 199223. añón roig, maría josé (2010), “derechos sociales: cuestiones de legalidad y de legitimidad”, anales de la cátedra francisco suárez, nº 44, pp. 15-41. alston, philip (1990), “the fortieth anniversary of the universal declaration of human rights: a time more for reflection than for celebration”, in berting, jan et al., human rights in a pluralist world: individuals and collectivities, westport, meckler, pp. 1-14. baynes, kenneth (2009), “discourse ethics and the political conception of human rights”, ethics & global politics, nº 2:1, pp. 1-21. beetham, david (1999), democracy and human rights, polity press, cambridge (uk). benhabib, sheila (2011), dignity in adversity: human rights in troubled times, polity press, cambridge (uk). brown, gordon (ed.) (2016), the universal declaration of human rights in the 21st century: a living document in a changing world, open book publishers, cambridge, uk. ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 21 burchill, richard and cavandoli, sofia (2011), “the contribution of the universal declaration of human rights to the promotion and protection of democracy in international law”, in odello, marco and cavandoli (ed.), emerging areas of human rights in the 21st century. the role of the universal declaration of human rights, routledge, abingdon, oxon, pp. 44-65. cançado trindade, antonio (2010), international law for humankind: towards a new jus gentium, the hague academy of international law, martinus nijhoff. cançado trindade, antonio, peytrignet, gérard y ruiz de santiago, jaime (2003), las tres vertientes de la protección internacional de los derechos de la persona humana. derechos humanos, derecho humanitario y derecho de los refugiados, porrúauniversidad iberoamericana, méxico. carrillo salcedo, juan antonio (2001), soberanía de los estados y derechos humanos en el derecho internacional contemporáneo, tecnos, madrid. carozza, paolo g. (2008), “human dignity and judicial interpretation of human rights: a reply”, the european journal of international law, vol. 19, n. 5, pp. 931-944. cassin, rené (1951), “la déclaration universelle et la mise en oeuvre des droits de l’homme”, recueil des cours de l'académie de droit international de la haye, n. ii, vol. 79, pp. 239-367. cassese, antonio (1991), los derechos humanos en el mundo contemporáneo, ariel, barcelona. de lucas, javier (2008), “las globalizaciones y los derechos”, enrahonar 40/41, pp. 55-66. de lucas, javier (2017), “negar la política, negar sus sujetos y derechos (las políticas migratorias y de asilo como emblemas de la necropolítica)”, cuadernos electrónicos de filosofía del derecho, nº 36, pp. 64-87. del toro huerta, maruricio iván (2012), la declaración universal de derechos humanos: un texto multidimensional, comisión nacional de los derechos humanos, méxico. glendon, mary ann (2011), un mundo nuevo. eleanor roosevelt y la declaración universal de derechos humanos, fondo de cultura económica, comisión de derechos humanos del distrito federal y universidad panamericana, méxico. habermas, jürgen (2010), “la idea de dignidad humana y la utopía realista de los derechos humanos”, anales de la cátedra francisco suárez, nº 44, pp. 105-121. herrera carbuccia, olga (2018), “la protección de los derechos humanos en la corte penal internacional”, in vv. aa., 70º aniversario de la declaración universal de derechos humanos. la protección internacional de los derechos humanos en cuestión, tirant lo blanch, valencia, vol. ii, pp. 541-546. jiménez de arechaga, eduardo (1980), el derecho internacional contemporáneo, tecnos, madrid. the political, legal and moral scope of the universal declaration of human rights: pending issues the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 22 lauterpacht, hersch (1950), international law and human rights, stevens & sons lted, london. lepard, brian (2010), customary international law. a new theory with practical applications, cambridge university press, new york. mccrudden, christopher (2008), “human dignity and judicial interpretation of human rights”, the european journal of international law, vol. 19, nº 4, pp. 655-724. morsink, johannes (1999), the universal declaration of human rights: origins, drafting and intent, university of pennsylvania press, philadelphia. morsink, johannes (2009), inherent human rights. philosophical roots of the universal declaration, university of pennsylvania press, philadelphia. oraá oraá, jaime (1999), “en torno al valor jurídico de la declaración universal”, in vv. aa., la declaración universal de derechos humanos en su cincuenta aniversario. un estudio interdisciplinar, universidad de deusto, bilbao, pp. 179-201. peces-barba, gregorio (1994), “la universalidad de los derechos humanos”, doxa, nº 15-16, 1994, pp. 614-615. pons rafols, xavier (1998), “la adopción de la declaración universal de derechos humanos”, in pons rafols, xavier (coord.), la declaración universal de los derechos humanos. comentario artículo por artículo, icaria. antrazyt, barcelona, pp. 27-42. santos, boaventura de sousa (2004), “hacia una concepción multicultural de los derechos humanos”, in gómez insa, felipe (dir.) y pureza, josé manuel, la protección internacional de los derechos humanos en los albores del siglo xxi, universidad de deusto, bilbao, pp. 95-122. verdiales lópez, diana m. (2018), “la importancia del enfoque de los derechos humanos en los objetivos de desarrollo del sostenible”, in fernández liesa, carlos ramón y díaz barrado, carlos miguel, objetivos de desarrollo sostenible y derechos humanos: paz, justicia e instituciones sólidas/derechos humanos y empresas, instituto de estudios internacionales y europeos francisco de vitoria de la universidad carlos iii de madrid, nº 9, pp. 75-90. villán durán, carlos (1998), “la declaración universal de derechos humanos en la práctica desarrollada por los órganos de derechos humanos de las naciones unidas”, in pons rafols, xavier (coord.), la declaración universal de los derechos humanos. comentario artículo por artículo, icaria. antrazyt, barcelona, pp. 73-89. villán durán, carlos (2018), “la obligatoriedad jurídica de la declaración universal”, en vv. aa., 70º aniversario de la declaración universal de derechos humanos. la protección internacional de los derechos humanos en cuestión, tirant lo blanch, valencia, vol. ii, pp. 113-122. von bernstorff, jochen (2008), “the changing fortunes of the universal declaration of human rights: genesis and symbolic dimensions of the turn to rights in ángeles solanes corella the age of human rights journal, 11 (december 2018) pp. 1-23 issn: 2340-9592 doi: 10.17561/tahrj.n11.1 23 international law” european journal of international law, vol. 19, issue 5, pp. 903-924. las sendas que ha recorrido en los últimos decenios la evolución del derecho están relacionadas con la utilización del sistema the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights∗ manuel calvo garcía1 abstract: the history of rights shows that the struggle for the recognition of women’s rights was difficult enough and the recognition of the right of women to a life without gender violence has been even more difficult. with a perspective based in a socio-legal and critical approach, this article defends that the recognition of the right of women to a life free of gender violence must be seen as a conquest of the feminist movement and women’s organizations. it was the struggle of the feminist movement which provided the catalyst for the recognition of women’s rights and the specific right of women to a life free of gender violence and to protection against such violence. but not only the recognition, also the praxis of the right of women to a life free of gender violence is important. the right of women to a life free from gender-based violence cannot be fully realized without the implementation of this right at the international and the local level. the implementation of rights and the existence of social movements involved with the right to a life free from gender violence is decisive to transforms the demands for protection from violence and its eradication to be see not as a question of mercy, but as a question of justice; and putting the individual experiences of gender violence victims within a wider framework from which the abuse can be considered as a social problem. keywords: violence against women; gender violence as a violation of human rights; human rights and social movements; feminist movement and women’s organizations. summary: i. legal reforms and the struggle against gender violence; ii. violence against women as a human rights violation; ii.1. the recognition of women’s rights as “human rights”; ii.2. the specification of gender violence as a violation of rights; iii. rights against gender-based violence. gender violence was not regarded as being worthy of juridical intervention until quite recently. this obviously does not mean that it is a new phenomenon in our society. on the contrary, it has always existed. however, it was not acknowledged –being hidden behind the veil of “privacy” or “intimacy” or, even worse, it was justified within the context of a patriarchal ideology. consequently, actions deserving social reproach – as well as being against the most basic rights of equality and dignity of individuals– ∗ this work has been undertaken within the project ‘the treatment of gender violence in the administration of justice. implementation and effectiveness of lo 1/2004’ (der2014-55400-r). 1 professor of legal philosophy and sociology of law, university of zaragoza, spain (mcalvo@unizar.es). the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 60 manuel calvo garcía escaped legal and judicial intervention. in the final decades of the last century, the activities of feminist groups and women’s organisations –together perhaps with a modest contribution from scientific research– produced an awareness of the real significance and scale of a question of human nature of the utmost seriousness. society and institutions in general became increasingly aware of this problem which eventually began to be regarded as being both reprehensible and punishable. gradually, legal mechanisms of control and social integration began to produce measures –essentially punitive – to confront this problem. little by little, legal action also became more extensive and mechanisms for intervention went further than merely punitive measures through the development of regulations and public policies aimed at preventing aggression and protecting the victims of gender violence. the history of rights shows that while the struggle for the recognition of women’s rights was difficult enough, the recognition of the right of women to a life without gender violence has been even more difficult. an illustration of this is the fact that the convention on the elimination of all forms of discrimination against women (cedaw) in 1979 did not specifically include gender violence. subsequently, the general recommendations nº 12 (1989) and nº 19 (1992) of the committee on the elimination of discrimination against women redressed this “oversight”, emphasising that gender violence is a form of discrimination against women. here again, as will be explained in detail in this paper, it was the struggle of the feminist movement which, in parallel with the development of forms of legal intervention for the eradication of gender violence, provided the catalyst for the recognition of women’s rights. this was, perhaps, the penultimate step in achieving the recognition of the specific right of women to a life free of gender violence and to protection against such violence. progressively, through the activism of women’s organisations and the feminist movement, it has come to be recognised that gender violence not only harms women’s rights but is a clear violation of those rights. the focus of this paper may be linked with the propositions of charles tilly (2004) when he posed the question “where do rights come from?”. this is clearly a provocative title, like the thesis which this article contains. in tilly’s opinion, the question can be asked from an analytic philosophical, a metaphysical or a rational action standpoint. but he understands, along with moore, tarrow and other authors involved in socio-historical research, that rights are first “historical products” and second “outcomes of a struggle” (tilly 2004: 273). the lack of attention to the political dimension of rights and to the relationship between social movements and human rights is quite difficult to explain (stammers 2009). given this background, the socio-juridical and critical perspective on which this work is based seeks to provide the conceptual and practical tools necessary to show these connections. more specifically, this approach allows the recognition and the praxis of the right of women to a life free of gender violence to be seen as a conquest of the feminist movement and women’s organisations. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 61 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights i. legal reforms and the struggle against gender violence women’s organisations made a decisive contribution to putting gender violence in the public arena and to developing mechanisms for its eradication by arguing that the problems of abused women were not simply individual problems, but a general social problem requiring political and juridical intervention. with this in mind, the feminist movement –especially at its early stages and particularly in the english-speaking world– fostered a strategy of social change based on policies of criminal intervention which marked the way ahead for the global movement against gender violence. the demands for legal intervention should be analysed in relation to the need to break the dead weight of the veil of privacy prevalent in a liberal legal culture. the demands of the feminist movements for legal intervention in the sphere of private relationships was a direct result of the fact that family privacy had repeatedly been used as a justification for not allowing judicial interference in the private sphere which, it was claimed, should be kept outside the public scrutiny of the courts and legal intervention. as an example of this doctrine and its consequences, the decision of the supreme court of north carolina given in the state versus a. b. rhodes in 1868 is frequently cited: …however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. every household has and must have, a government of its own, modeled to suit the temper, disposition and condition of its inmates. mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive, and each member will find excuse for the other in his own frailties. but when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life2. this doctrine was repeated in innumerable subsequent judgements and persisted until the final decades of the last century, thereby guaranteeing criminal and civil immunity for aggressors (siegel 1996). the need to break with the sanctification of the private sphere drove the tendency of feminist movements to fight for state intervention. this proposition is defended by kristin a. kelly (2003: 59 ff.), concentrating more on the indirect symbolic functions of juridical intervention than on the direct social control functions of the legal norms. in this context, the author analyses the feminist movement against domestic violence in the usa in the 1970s, a movement which emerged from the public exposure of such violence, from the perspective of the awareness of the problem which had the effect of battered women starting to share experiences –which contributed to deprivatizing the problem. this strategy is considered from the perspective of a movement of abused women fundamentally in the fight to achieve reforms “that would 2 available at: http://faculty.uml.edu/sgallagher/statevrhodes.htm [last visited: january 2015]. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 62 http://faculty.uml.edu/sgallagher/statevrhodes.htm manuel calvo garcía make the legal system take domestic violence more seriously” (kelly 2003: 68). the “juridification” of domestic violence was regarded as the most important means of achieving the recognition of gender violence within families as being a matter of public interest, and the law is seen in this sense as “the” instrument for definitively making it clear that domestic violence is a social problem. in countries where the law is considered to be one of the principal means of reinforcing values, the actions of feminist collectives and in particular of lawyers representing battered women focussed on developing legal and regulatory instruments aimed at empowering victims of abuse, both increasing their protection and at the same time increasing the sanctions against their assailants (kelly 2003: 70). this tendency resulted from the confluence of a series of factors which include, in the first place, the actions of women’s movements and defenders of women victims of abuse in favour of using criminal law to provide justice and redress the lack of consideration of the rights of women who suffer violence for reasons of gender, which turned their situation into an issue of public and political concern. but also, in the second place, because the policies of control make criminal law an area particularly attractive for legal reform and, what’s more, at “low cost”3. legal reform as a strategy against domestic violence was largely based on the indirect symbolic functions of juridical intervention and, in particular, of criminal reform, showing a clear tendency to use coercive judicial mechanisms to solve “social problems” and especially to deal with the phenomenon of violence against women4. in this context, the social demands of women turned into juridical demands. more specifically, these reforming processes were principally focussed on criminal law, which contributed to effecting a reduction in the objectives and actions in the struggle to end gender violence. furthermore, a strategy based on legal reform structured around criminal reform can be seen as one of the conditions responsible for the initial lack of debate about human rights in the usa5 and in other ambits (bodelón 2012). on the other hand, the margins of the welfare state opened up important areas of action for social reformers. the movement of women against domestic violence started from the bottom up, initially with the setting up of refuges for victims of abuse in the early 1970s, first in the uk (1972) and almost simultaneously in the usa (minnesota, 1973; boston, 1974)6. the women’s movement developed from these initiatives and 3 “many politicians who oppose increases in public expenditure on ‘social programmes’ are more than happy to allocate resources to ‘the fight against crime’” (coker, 2001: 802-3). 4 buzawa and buzawa 2003: 4. this trend is changing as can be seen in the fourth edition of the cited work (buzawa, buzawa and stark 2012: 11 ff.). 5 schneider 2008: 358. the reflections made by elizabeth schneider, half way between legal activism directed towards social reform and theory, are especially interesting. in her opinion legal reform does not exclude a recognition of the possibilities of international human rights law as a valid instrument applicable at a local level (schneider 2000: 53 ff.). 6 dobash and dobash 2003: 25 ff., 60 ff. this movement gradually became more widespread. in spain the first refuges opened in madrid in 1986 and in barcelona in 1987 (bodelón: 2002: 339-348). the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 63 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights gender violence started to become visible in society. but little by little the social movements also claimed the right to actively use the transforming ability of juridical mechanisms and this led to intervention from the social policies with the objectives of victims’ protection and social transformation. as r. emerson dobash and russell p. dobash point out, “interventionist and welfare states provide greater opportunities for reformers attempting to effect changes within the institution of the state. the goal may be to introduce state involvement where once there was none or to alter existing policies, practices and legislation relating to particular groups or social issues”. women’s movements frequently resorted to this alternative. the authors continue emphasizing the point that “it is critical that the battered women’s movements in britain and the usa began in the 1970s when governments were generally more interventionist and welfare oriented” (dobash y dobash 2000: 189). in short, legal reform led to considerable advances, but eradicating gender violence and stamping out its causes required going one step further: to open the door to women’s rights and to seek intervention from the perspective of formulating policies to transform social relations in order to put an end to the discrimination and power asymmetry which feed gender violence. why is it that such a commitment was not made in 1970 when the first steps towards legal reform were taken? simply because the “right” of women to a life free of gender violence and to protection against such violence was not taken into account either at local or international levels. the idea of gender violence as a violation of a specific right of women took a long time to arrive. it took hold in the mid 1980s and particularly in the 1990s when the language of rights entered into the discourse and the political struggle of women to eradicate gender violence7. from then onwards, gender violence began to feature more prominently in the international agenda of organisations defending women’s rights and was finally considered both nationally and locally as a violation of those rights. ii. violence against women as a human rights violation ii.1. the recognition of women’s rights as “human rights” the omission of women’s rights or their relegation to a position of minor importance in the most significant legal reforms of the 1970s and 1980s was the result of the omission of women in the general discourse of rights. if the 19th century was the century of the rights of “man”, much the same can be said of most of the 20th century. quite apart from this play on words, it has to be said that the omission of women from international human rights law was not merely a linguistic slip. the charter of the united nations made way for the development of women’s rights, but the universal declaration of human rights persisted with the omission, which was not merely a 7 sally engle merry (2009: 25) explains that in the 1970s and 1980s the movement against the abuse of women showed domestic violence to be a social problem and identified it as gender violence. later, especially in the 1990s, these movements began to be associated with the human rights movement at both a national and an international level. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 64 manuel calvo garcía question of terminology. when the option of giving some prominence to women in the text of the declaration was excluded from the drafting discussions, this also represented a rejection of the opportunity to emphasize the equivalence of the rights of women and men. in the interests of apparent universality and neutrality, a more decisive declaration in favour of the eradication of gender discrimination and the defence of the specific rights of women was left aside. women’s rights made progress thanks to the incorporation of women into international organisations and the activities of women’s organisations. the first significant advance in the development of women’s rights occurred with the setting up of the commission on the status of women within the framework of the united nations. the advance of women in the public sphere at the time in which the universal declaration appeared was not reflected in the text, but it was an unavoidable reality. arvonne s. fraser (2007: 43 ff.) gives a detailed description of this important period in the origins of women’s rights. according to her, the development of women’s organisations and the increasing presence of women in national delegations was the result of the progress made by the women’s movement. women had begun to access the labour market, the suffragettes had been successful in 31 countries and gradually, led by delegates from latin american countries, women began to have a clear presence in the united nations. minerva bernardino of the dominican republic, one of the four women who signed the charter of the united nations, proposed the creation of a committee within the framework of the commission on human rights to work on the promotion of women’s rights. after overcoming numerous objections, initially including the opposition of the powerful eleanor roosevelt, the commission on the status of women of the united nations was finally established on 21 june 1946. this commission played a fundamental role in the development of women’s rights. it was responsible for the drafting of the declaration on the elimination of discrimination against women, adopted by the general assembly on 7 november 1967, the precursor of the convention on the elimination of all forms of discrimination against women, adopted in 1979. the commission on the status of women of the united nations also organised the united nations decade for women and the world conferences on women held in mexico, copenhagen and nairobi8. these initiatives changed the discourse of the united nations and gave rise to the emergence of women as political agents and as having human rights, overcoming the limitations of discourses anchored in the language of the traditional “family of nations”, with its stereotypes and its implicit subordination of women. networks and organisations of women with political experience demanded an end to sexual stereotypes and gender discrimination. they used the platform of the united nations to 8 this decade was started after the world conference of the international women's year held in mexico city in 1975 and continued until 1985. during the decade two other world conferences on women were held: the world conference on the united nations decade for women: equality, development and peace (copenhagen, 1980) and the world conference to review and appraise the achievements of the un decade for women (nairobi, 1985). the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 65 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights exercise their rights, opportunities and responsibilities in equal measure to men, and to create a new international order – economic, social and political9. another fundamental milestone in this period was the convention on the elimination of all forms of discrimination against women10. this convention completed and gave legal backing to the declaration on the elimination of discrimination against women, stating the degree of concern regarding the continuance of generalised discrimination against women despite the charter of the united nations, the universal declaration of human right, the international covenant on economic, social and cultural rights and the international covenant on civil and political rights (gómez-isa 2003: 298 ff.; southard 1996). the adoption of the cedaw was followed by a large number of international and regional human rights instruments. national governments were obliged to adopt measures and policies leading to the protection, observance and application of the rights of women11. these initiatives gained strength in a widespread and influential movement which contributed decisively to the recognition of women in the international sphere. the feminist movement had for many decades ignored the need to respond to the praxis of human rights that clearly failed to recognise women’s rights. in the 1980s a movement for the defence of women’s rights emerged internationally from the grassroots of civil society which articulated the slogan “women’s rights are human rights”. this bottom-up movement was involved in various activities ranging from the organisation of a defence network for the rights of women in the philippines to the encuentro feminista de mujeres latinoamericanas y del caribe (feminist meeting of latin american and caribbean women) in bogotá (1981), which declared 25 november as the international day for the elimination of violence against women, and many other specific initiatives organised all over the world (reilly 2009: 71). one of the most fruitful manifestations of this movement was related to the emergence and initiatives developed around the global campaign for women's human rights and its global tribunal on violations of women's human rights12. taking this process as a basis, niamh reilly has convincingly argued that the progress of women’s rights in the 1980s “did not happen suddenly or by accident. it was the result of well-organized, broad-based, transnational collaboration among diverse women’s rights advocates and ngos –wherein the activities of the global campaign for women's human rights played a major part” (reilly 2009: 73). although the 9 zinsser (2002: 144) has shown that the official documents of the decade reveal that women had in fact modified the prevailing discourse. 10 convention on the elimination of all forms of discrimination against women, 18 december 1979. it came into force on 3 september 1981. at the time of writing, 188 countries have ratified the convention [https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-8&chapter=4&lang=en, last visited january 2015], attesting to the weight of the treaty in the international sphere of human rights. for the history of the convention, see reilly 2009: 46 ff. 11 for an up-to-date account of the impact of the cedaw, see englehart and miller (2014: 25 ff.). 12 see bunch and reilly (1999) for a detailed description of the bottom-up organisational features and the strategies of both campaigns, together with the main documentary sources. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 66 manuel calvo garcía women’s movement developing from the decade and the united nations conferences in 1975-1985 and culminating in the 1990s was very complex and was not free from the ideological and political struggles of the period (ghodsee 2010: 3–12, olcott 2010), there is absolutely no doubt that it provided the necessary spark and the decisive action in the period leading up to and during the world conference on human rights held in vienna in 1993, which finally resulted in women’s rights being fully recognised as human rights13. ii.2. the specification of gender violence as a violation of rights the issue of violence against women was first specifically raised in 1980 at the world conference on the united nations decade for women held in copenhagen in the context of the struggle against discrimination and the emergence of women rights described above. its 48 resolutions included one entitled “battered women and violence in the family” in which it is stated that domestic violence and violence against women in general represent “a problem of serious social consequences that perpetuates itself from one generation to the next”, a situation which is made more serious by the immunity from prosecution of persons who commit such acts of violence14. in fact, this issue had been a theme running through the debates and reports of the world conference of the international women's year held in mexico in 1975, and was even more apparent in the third world conference on women which took place in nairobi in 198515. it should be emphasized that these declarations were drafted within the context of the struggle for women’s rights led by the feminist movement during the united nations decade for women (1975-1985)16. it has also been pointed out that these developments were very much the result of the fact that the majority of the government delegates were women. credit must also be given to the work of forums representing ngos undertaken in parallel with these conferences (reilly 2009: 5758)17. 13 un-vienna declaration and programme of action, adopted by the world conference on human rights on 25 june 1993, (a/conf.157/23), paragraph 18. 14 un-report of the world conference of the united nations decade for women: equality, development and peace, copenhagen, 14-30 july 1980, a/conf.94/35. see: http://www.un.org/womenwatch/daw/beijing/copenhagen.html (last visited january 2015). 15 paragraph 231 of the report of the nairobi conference calls for the adoption of effective measures to identify, prevent and eradicate domestic violence against women and children and the implementation of all kinds of measures for their protection and to impose sanctions on those guilty of such acts of violence. un-report of the world conference to review and appraise the achievements of the united nations decade for women: equality, development and peace (nairobi, 15-26 july 1985) united nations, new york, 1986. nairobi forward-looking strategie [http://www.un.org/womenwatch/confer/nfls/]. 16 un-advancement of women, in-depth study on all forms of violence against women: report of the secretary-general (a/61/122/add.1), 2006, (a/61/122/add.1), p. 16 s. subsequently published as: ending violence against women: from words to action. study of the secretary-general, electronic resource: http://www.un.org/womenwatch/daw/vaw/publications/english%20study.pdf (last visited january 2015). this study includes contributions from a wide-ranging group of experts and is an important reference for the development of the right of women to a life free from gender violence. 17 for the role of ngos in this process, see tinker 1999: 95 ff. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 67 http://www.un.org/womenwatch/daw/beijing/copenhagen.html http://www.un.org/womenwatch/daw/vaw/publications/english%20study.pdf the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights the discourse on violence against women in the 1970s and 1980s was closely connected with the language of legal reform and the urgency of making progress in protecting victims and prosecuting aggressors. however, despite some exceptions, there was little direct use of the language of rights18. this may be the explanation for the “oversight”, mentioned above, of gender violence in the cedaw and its revival in the discourse and the claims of women’s rights in the 1980s. the feminist movement had based its demands for legal and social intervention on facts. scientific knowledge and the work of women’s organisations had brought to light a reality which was very widespread in our society and which it was difficult to continue to ignore behind the veils of intimacy or the private sphere. this knowledge and the existing data also began to be taken into account in the feminist movement for the defence of women’s rights and gradually permeated the activities of international organisations. the culmination of this process, which brought gender violence and especially domestic gender violence out into the open, can perhaps be found in the study on the extent of domestic violence published in 198919. the above explains why the consideration of gender violence as a violation of women’s rights was given after the adoption of the cedaw in two general recommendations of the committee on the elimination of discrimination against women: general recommendation no. 12, eighth session, 1989; and general recommendation no. 19, eleventh session, 199220. these recommendations place a specific obligation on states party to the convention to protect women from any type of violence, including gender violence in the domestic sphere21. the committee firmly establishes in general recommendation no. 19 that violence against women is a further form of discrimination against women “that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men”. first, it establishes as a general observation that the definition of article 1 of the convention: …includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. it includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. gender-based violence may breach specific provisions of the convention, regardless of whether those provisions expressly mention violence (paragraph 6). in virtue of this, it is concluded that: gender-based violence, which impairs or nullifies the enjoyment by women of human rights and 18 paradoxically, while questioning the omission of women’s rights in the discourse on human rights, frank hosken makes no reference to violence against women in his presentation to a “symposium on women and international human rights” held at the time to define the rights of women (hosken 1981: 110). 19 centre for social development and humanitarian affairs – office of the united nations in vienna, violence against women in the family, united nations, new york, 1989. 20 freeman et al., 2012: 447 ff. 21 freeman et al., 2012: 454 ff. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 68 manuel calvo garcía fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the convention (paragraph 7)22. another of the fundamental advances of this recommendation is to put an end to the argument that gender violence can not be considered a violation of rights on the grounds that it originates in private acts or in the private sphere23. thus, it states that: discrimination under the convention is not restricted to action by or on behalf of governments (see articles 2(e), 2(f) and 5). for example, under article 2(e) the convention calls on states parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. under general international law and specific human rights covenants, states may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation (paragraph 9). in short, violence against women was explicitly considered as a violation of women’s rights for which states have responsibilities and obligations. for this reason, states were requested to inform the committee of measures adopted to overcome such violence24. similarly, with the coming into force of the optional protocol to the convention on the elimination of all forms of discrimination against women25 states were given the opportunity to report to the committee on any violation of rights related with the prohibition of gender violence as set out in the convention in accordance with the interpretations of the general recommendations 12 and 19 (facio et al 2009: 79 ff.). as stated above, another important landmark in the definitive incorporation of the language of rights in the fight against gender violence can be found in the world 22 general recommendations adopted by the committee on the elimination of discrimination against women (cedaw) [http://www.un.org/womenwatch/daw/cedaw/recommendations/index.html, last visited january 2015]. 23 the duality of public-private spheres has served to avoid scrutiny on the part of international human rights law of private acts of torture and abuse and, in particular, to cover up the “subordination of women in the private sphere”. vid. chinkin (1999: 392 ff.). the reflections of hilary charlesworth (1999: 382383) are of interest here, pointing out that the consequences of this distinction are not neutral from the gender perspective given that in our society men dominate the public spheres of politics and government while women tend to see themselves as being more limited in the private sphere of the home and the family. 24 rashida manjoo, report of the special rapporteur on violence against women, its causes and consequences, submitted to the general assembly, 1 august 2011 (a/66/215): “19. the prevalence of violence against women remains a global concern. for example, in the majority of the 21 countries considered by the committee on the elimination of discrimination against women in 2010, representing all regions, prevalence of violence was either high, persistent or on the increase. the committee had already explicitly linked discrimination against women and gender based violence in its general recommendations no. 12 (1989) and no. 19 (1992). it constantly calls on states parties to include in their reports to the committee information on violence and on measures introduced to overcome such violence”. avalaible at: http://daccess-dds-ny.un.org/doc/undoc/gen/n11/439/45/pdf/n1143945.pdf?openelement, last visited january 2015 25 resolution of the general assembly, october 1999 (a/res/54/4). this protocol came into force on 22 december 2000 and was ratified by spain in july 2001. vid., on the protocol, felipe gómez isa (2003: 291-321). the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 69 http://daccess-dds-ny.un.org/doc/undoc/gen/n11/439/45/pdf/n1143945.pdf?openelement the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights conference on human rights held in 1993 which, as we have seen, asked the general assembly to adopt the draft declaration on violence against women and urged states to combat violence against women in accordance with the terms of the declaration26. following the demands made at the vienna human rights conference in 1993 and the transformation of the claims occurring in the feminist movement27, the general assembly adopted the declaration on the elimination of violence against women at the end of 1993. the declaration makes it clear that violence against women is not only an obstacle to achieving equality, development and peace, as recognised by the nairobi conference. it also represents an obstacle to the full application of the convention on the elimination of all forms of discrimination against women. following recommendation 19 of the committee it categorically states that “violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms”. this declaration is drawn up from a gender perspective, clearly stating that: violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men 28. another fundamental step in the recognition of the right of women to a life free of gender violence was resolution 1994/45 of the commission on human rights, adopted on 4 march 1994, under which it was decided to appoint a special rapporteur on violence against women, including its causes and consequences29. this established the first human rights mechanism specifically to deal with violence against women. radhika coomaraswamy from sri lanka was appointed as the first special rapporteur30. her mandate was to seek and receive information from governments on 26 vienna declaration and programme of action adopted by the world conference on human rights on 25 june 1993 (a/conf.157/23), paragraph 38. 27 sylvia walby (2002) makes the following interesting reflection: “by the early 1990s this demand to stop men’s violence against women …was translated into language and concepts more appropriate for the predominantly male forum of the un, that is the language of human rights rather than men’s oppression of women. the demands were that women’s rights were human rights, and that violence against women constituted a violation of women’s human rights. this was a call for the transformation of the existing agenda of human rights and for a new interpretation that placed women’s issues at the heart of the mainstream”. 28 declaration on the elimination of violence against women (a/res/48/104). general assembly resolution 48/104, 20 december 1993. 29 the united nations commission on human rights in resolution 1994/45, adopted on 4 march 1994, decided to appoint a special rapporteur on violence against women, including its causes and consequences. the mandate was extended by the commission on human rights in 2003, at its 59th session in resolution 2003/45. 30 radhika coomaraswamy occupied the position until 2003. her successor was yakin ertürk, from turkey who held the post until 2009. since then rashida manjoo, from south africa, has been in the post. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 70 manuel calvo garcía violence against women, including domestic violence, and to recommend measures to eliminate such violence. since 1994, by means of thematic reports, missions to various countries, consultations, meetings with experts, communications with governments and other mechanisms, the special rapporteur “has studied the forms, prevalence, causes and consequences of violence against women; analysed the legal and institutional developments in the protection of women against violence and the remaining challenges; and provided key recommendations to governments and to the international community to overcome such challenges”31. the continuity of these milestones can be seen in many other developments including the fourth world conference on women (4-15 september 1995; beijing, china). after recalling in paragraph 8 the need to implement the rights listed in the declaration on the elimination of violence against women, this conference established in paragraph 29 of the declaration and platform for action, as approved by governments, the need to “prevent and eliminate all forms of violence against women and girls”. from this moment on, several resolutions and reports were issued within the system of the protection of human rights of the united nations. among these, of particular note is the uncompromising stance against gender violence evident in the report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment of 200832. in this report, citing rhonda copelon (1994), gender violence is treated as a cruel, inhuman and degrading form of torture or punishment. parallels are drawn with various other forms of violence against women and other actions recognised as torture: 45. as with female detainees who experience torture, battered wives may be beaten with hands and objects, kicked, strangled, stabbed or burned. rape and other forms of sexual abuse are used by intimate partners as well as by prison guards or police officers. in both scenarios, physical violence is usually accompanied by insults, varied forms of humiliation, and threats to kill or harm the victim or her family members (often children). domestic violence, as well as torture, tends to escalate over time, sometimes resulting in death or leaving women’s bodies mutilated or permanently disfigured. women who experience such violence, whether in their homes or in a prison, suffer depression, anxiety, loss of selfesteem and a feeling of isolation. indeed, battered women may suffer from the same intense symptoms that comprise the post-traumatic stress disorder identified in victims of official 31 rashida manjoo, report of the special rapporteur on violence against women, its causes and consequences, submitted to the general assembly, 1 august 2011 (a/66/215). electronic version: http://daccess-dds-ny.un.org/doc/undoc/gen/n11/439/45/pdf/n1143945.pdf?openelement (last visited january 2015). the report offers a general overview of the work carried out during her mandate, as well as her main conclusions and the remaining challenges. the document includes a list of reports made by the special rapporteur. for information about the role of the special rapporteur in connection with violence against women, its causes and its consequences, see merino-sancho 2012: 71 ff. 32 manfred nowak, report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 15 january 2008 (a/hrc/7/3). available at: http://daccess-dds-ny.un.org/ (last visited january 2015). the interpretation of gender violence given at this time by the committee against torture was also of fundamental importance: general comment no. 2: implementation of article 2 by states parties, 24 january 2008 (cat/c/gc/2). available at: http://docstore.ohchr.org/ (last visited january 2015). the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 71 http://daccess-dds-ny.un.org/doc/undoc/gen/n11/439/45/pdf/n1143945.pdf?openelement http://daccess-dds-ny.un.org/doc/undoc/gen/g08/101/61/pdf/g0810161.pdf?openelement http://docstore.ohchr.org/selfservices/fileshandler.ashx?enc=6qkg1d%2fppricaqhkb7yhskve%2btuw1mw%2fku18dcyryrzhddp8yasri%2fv43pytgmq5n7dagfddalfzytjnwnyox%2b38njabk89mhjqgxlmctn4%3d the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights torture as well as by victims of rape. another parallel between privately battering women and torture, which refers back to the element of powerlessness, is the intention to keep the victim in a permanent state of fear based on unpredictable violence by seeking to reduce the person to submission and destroy his/her capacity for resistance and autonomy with the ultimate aim of achieving total control. in fact, this idea of considering violence against women as a form of torture had already been put forward in academic studies linked to legal activism against gender violence (copelon 1994) and also by the special rapporteur in her report of 1996: the argument that domestic violence should be understood and treated as a form of torture and, when less severe, ill-treatment, is one that deserves consideration by the rapporteurs and treaty bodies that investigate these violations together perhaps with appropriate ngo experts and jurists33. it can be seen that the extension of the recognition of violence against women for reasons of gender has involved not only those organisations specifically concerned with the protection of women’s rights. little by little, it has also extended on an international level to those organs of the united nations specifically concerned with the protection of human rights (meyersfield, 2012: 58-79). with respect to the full recognition of gender violence as a violation of rights, especially noteworthy is the general comment no. 28 of the human rights committee which also links gender violence with torture and abuse as set out in article 7 of the international covenant on civil and political rights and which puts an obligation on states to provide “information on national laws and practice with regard to domestic and other types of violence against women”34. the process of recognising gender violence as a violation of rights is also apparent in the actions of regional human rights protection organisations. regional organisations have recognised violence against women as a violation of the human rights of women and have demanded that states guarantee these rights35. as regards the council of europe, especially significant is the adoption of the council of europe convention on preventing and combating violence against women and domestic violence (istanbul, 11/05/2011). article 3 makes it clear that under the terms of the convention violence against women is a violation of human rights and a form of discrimination against women, which must be seen from the gender perspective: 33 radhika coomaraswamy, report of the special rapporteur on violence against women, its causes and consequences, submitted in accordance with the commission on human rights resolution 1995/85. (e/cn.4/1996/53, fifty-second session), paragraph 50. available at: http://daccess-dds-ny.un.org/ (last visited january 2015) 34 human rights committee, general comment no. 28 article 3 (the equality of rights between men and women), 29/03/2000 (ccpr/c/21/rev.1/add.10), pfo. 11. 35 vid.meyersfield 2012: 79-91. for a broader perspective focusing on legal discrimination, progress to date and the gap existing between the letter of regional mechanisms and actual practice, see fareda banda, project on a mechanism to address laws that discriminate against women, office of the high commissioner for human rights/women’s rights and gender unit, 2008: 23 ff. [http://www.ohchr.org/documents/publications/laws_that_discriminate_against_women.pdf, last visited may 2012] the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 72 http://daccess-dds-ny.un.org/ manuel calvo garcía “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender‐ based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; in other regional spheres various instruments have been adopted aimed at defining domestic and gender violence as human rights violations. the most relevant include the inter-american convention on the prevention, punishment and eradication of violence against women, known as the “convention of belém do pará” as it was adopted in this brazilian city in 1994, and the protocol to the african charter on human and peoples’ rights on the rights of women in africa, known as the “maputo protocol”, both of which guarantee the rights of women together with the protection of women against all forms of violence including gender violence. the convention of belém do pará states in article 3 that “every woman has the right to a life free of violence, both in the public and in the private sphere” and establishes an obligation on states to guarantee this right. consequently, both the interamerican commission on human rights and the inter-american court of human rights have acted to guarantee this right and other related rights (articles 4 and 5). especially important is the decision of the inter-american commission on human rights in the case of maria da penha given on 16 april 2001 (report nº 54/01, case 12.051). this decision condemned the state of brazil in the application of the convention of belém do pará for not having intervened adequately in order to prevent and respond to the abuse of this woman. this decision obliged brazil to enact a law against gender violence, the ley maria da penha en defensa de los derechos de la mujer (maria da penha law in defence of women’s rights)36. the other very relevant decision is the ruling of the inter-american court of human rights of 16 november 2009 in the case gonzález y otras vs. méxico (“campo algodonero”). this ruling concluded that the state had failed to comply with its duty to investigate – and thus its duty to guarantee– the rights enshrined in various articles of the american convention on human rights and the convention of belém do pará. the court also ruled that in this case the violence against the woman represented a form of discrimination. the state of mexico was found guilty of human rights violations. turning now to the african human rights system, on 11 july 2003 the protocol to the african charter on human and peoples’ rights on the rights of women in africa or the maputo protocol was adopted as an annexe to the charter of 1986, specifically orientated to the recognition and protection of women’s rights. this protocol came into force in 2005 and represents one of the bases for the recognition of the right of women to a life free of violence37. after defining the concept of violence against women from a 36 law nº 11.340, 7 august 2006. see spieler 2011: 137 ff. 37 meyersfield (2012: 90-91) has emphasized the importance of this text for the recognition of gender violence as a violation of rights, while pointing out that its implementation and effectiveness is another the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 73 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights gender perspective (article 1) and determining the obligation of states to prevent discrimination against women (article 2) and to ensure their dignity (article 3), it establishes in article 4.2 that: states parties shall take appropriate and effective measures to: a) enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public; b) adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women; c) identify the causes and consequences of violence against women and take appropriate measures to prevent and eliminate such violence; d) actively promote peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women; e) punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims; f) establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women; … this is a complete and categorical definition which speaks for itself, recognizing that gender violence is a violation of human rights and requiring the intervention of the public authorities to guarantee such rights in the private as well as the public sphere. it is not only in the united nations system but also in the regional systems of human rights where progress has been made in the recognition of the right of women to a life without violence, defining gender violence as a violation of rights and demanding the intervention of states and international organisations to protect and guarantee such rights. the struggle by women during decades has achieved first, the recognition of women’s rights; second, bringing the reality of gender violence into the open together with the violation of rights inherent in its various forms; and, third, the recognition of the specific right of women to a life free of any kind of gender-based violence. international law and social and academic discourse recognise that gender violence is not only an attack on the rights of women, but is also a violation of the right of women to a life free of violence. it has been a long process, but today it is at last unarguable that gender violence is a violation of human rights. at a local level, this process has been interrelated with advances in legal reforms and has furthered punitive strategies to the extent that gender violence has become regarded as a universal problem. this was pointed out by jane r. chapman (1990: 60) in her justification of the need to find space for the language of rights in the fight to end violence against women. gender violence is certainly a crime, but it is much more than an offence. therefore, if this social scourge is to be eradicated, it is essential to speak of it in the language of rights. dealing with the problem in terms of human rights is especially productive because it provides a broader perspective without ignoring the advances implicit in criminal and other legal reforms. iii. rights against gender-based violence question. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 74 manuel calvo garcía the struggle for the recognition of gender-based violence as a violation of women’s rights is of fundamental importance when attempting to extend the limits of a discourse based on the protection of civil rights and the politics of women. the recognition of the right to a life free of gender-motivated violence together with other rights pertaining specifically to women, in particular reproductive rights, take us much further than abstract ideas of equal treatment. they lead towards the recognition of rights vested in women in the broadest possible sense of the term and open the way to an acceptance of full equality without exceptions. the developments examined in the previous section indisputably show that the right to a life free of gender violence has full recognition within the international system of human rights38. this recognition has important legal consequences. this point is made in a report drafted by a group of informed experts as follows: there are important consequences that flow from categorizing violence against women as a matter of human rights. recognizing violence against women as a violation of human rights clarifies the binding obligations on states to prevent, eradicate and punish such violence and their accountability if they fail to comply with these obligations. these obligations arise from the duty of states to take steps to respect, protect, promote and fulfil human rights. claims on the state to take all appropriate measures to respond to violence against women thus move from the realm of discretion and become legal entitlements. the human rights framework provides access to a number of tools and mechanisms that have been developed to hold states accountable at the international and regional level. these include the human rights treaty bodies and international criminal tribunals, as well as the african, european and inter-american human rights systems39. the recognition at an international level of the right of women to a life free of gender violence thus has significant legal implications in addition to political and social consequences. it puts an obligation on states to ensure this right is effectively exercised by implementing the appropriate legislative, administrative and other necessary measures. the right to a life free of gender-motivated violence can be exercised without any limitations or excuses based on arguments relating to the agency or the private sphere in which violations of this right are committed. states have responsibilities in the eradication of gender violence to guarantee women’s rights. as a result, these rights are subject to the scrutiny of various human rights treaty bodies which monitor them from different perspectives (the committee on the elimination of discrimination against women, the human rights committee, the committee against torture and the committee on the rights of the child) and, where applicable, the object of communication by virtue of the corresponding optional protocol. they are also subject to examination and information-gathering under the terms of the mandates that protect such rights directly or indirectly, in particular by the special rapporteur on violence 38 after an exhaustive analysis, bonita meyersfield (2012: 106-107) concludes that from a technical point of view it is indisputable that the right can be exercised from the perspective of international law. 39 un advancement of women, in-depth study on all forms of violence against women. report of the secretary-general, 2006 (a/61/122/add.1), paragraph 39. this study included contributions from a wide range of experts and is an important reference point in the establishment of the right of women to a life free from gender violence. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 75 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights against women, its causes and its consequences, and the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. similarly, in the regional sphere, the council of europe convention on preventing and combating violence against women and domestic violence establishes monitoring and control measures by means of a group of experts and the committee on action against violence against women and domestic violence40. however, the right of women to a life free from gender-based violence cannot be fully realised without transferring the implementation of this right from the international to the local level. this message needs to be articulated in the discourse on rights at the local level where the appropriate actions also need to be taken to implement this right. including this right with other fundamental rights protected in state constitutions such as the rights to liberty, equality, life, security and non-discrimination would establish guarantees of the protection and enforceability of this right at a local level. as suggested above, there is still a long way to go before women’s rights are fully and effectively achieved, especially the right to a life free from gender violence. the delay in the recognition of these rights says a great deal about the context and the prevailing ideology which for decades has put so many obstacles in the path to such recognition. the struggle for the right of women to a life free from gender violence is marked by the need to address impediments to the main features of this right. in the first place, its recognition involves transformations and developments that must be considered as a “revolutionary and evolutionary process” (thomas and beasley 1995: 1147) in which the feminist movement and the involvement of women’s organisations are fundamentally important, which could thus be characterised as a “bottom up” process both at the international and national levels. secondly, the inclusion of the language of rights in the struggle against gender violence –admittedly a complex and dialectical process –initially occurs at an international level and thus requires putting this development into practice at a local level, based on the consideration of gender violence as a violation of rights. the recognition of the right of women to a life free from gender violence has proved to be especially relevant in highlighting the influence of social movements in the recognition of rights and the actions of women’s organisations in making such rights effective in practice. the legislative intervention against gender violence advocated within the framework of the legal reformism was at all times influenced by the actions of the feminist movement and women’s organisations. subsequently, in the last decades of the 20th century, the international human rights movement and national women’s movements promoted the recognition of the right of women to a life free from gender violence and the consequent classification of gender violence as a human rights violation. in both cases, as shown in the previous section, the driving force behind women’s human rights and their specific right to a life free from violence can be 40 this convention came into force on 1/8/2014, after ratification by 10 states. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 76 manuel calvo garcía regarded as a “bottom up” process41. the history of human rights shows the importance of enshrining these rights in legislation and in local practice to ensure their implementation. in other words, it is necessary to identify gender violence as a human rights issue in all contexts and at all levels (thomas and beasley 1995). the laws for eradicating gender violence should combine this action with the implementation of women’s rights, incorporating developments in the international human rights system insofar as it relates to women’s rights and also the recognition of fundamental rights such as those of liberty, equality, life, security and non-discrimination found in democratic constitutions42. the other step, also fundamental for achieving the desired objectives, is the incorporation of the language of rights in the practice and actions of social movements. this implies first introducing the language of rights in practice. perhaps the fundamental step is introducing the language and the defence of rights in actions against gender violence in the courts and in those institutions responsible for prevention and the protection of victims. it is essential that the arguments based on the discourse of human rights and the advances in international human rights law should appear in judicial decisions. however, this obviously will not occur spontaneously43. this would require the active intervention of the women’s movement and of human rights movements in general. here it is important for women’s organisations to include arguments and resources in their discourse and strategies based on those of international and national mechanisms for the defence of human rights, and at the same time for women to realise that their struggle is not a personal one to be faced in isolation, but that their actions involve the full realisation of human rights. this in turn means that all people involved professionally in actions against gender violence and the protection of its victims should be conscious of this perspective (choudhry and herring 2006; morgaine 2006). perhaps the first question is how to help society and victims to treat the phenomenon of gender violence as a question of rights. it is clear that this is the first step towards reaching the point where all the actors involved in the fight against gender violence accept the language of rights and the possibilities that this perspective offers. sally e. merry has shown in several empirical research studies the way in which women victims of gender violence have come to realise that the aggression they suffer represents a violation of their rights 44. she has made it clear that rights consciousness 41 merry et al. (2010) use this terminology, paraphrasing santos and rodríguez-garavito, eds (2005). 42 this was done in spain with the “ley orgánica 1/2004” of 28 december 2004 on “medidas de protección integral contra la violencia de género” (comprehensive protection measures against gender-based violence). from many points of view this legislative development is insufficient because the language of rights in this law does not recognize a “specific” right of women to a life free from gender violence. nevertheless, it is an important step forward given that it clearly does use the language of rights in addressing gender violence. 43 for example, when addressing the constitutionality of the above-mentioned law, the spanish constitutional court in its decision 59/2008 not only failed to directly recognize the right of women to a life free from gender-based violence, but paradoxically it also avoided using the language of rights in relation to the protection of victims and the eradication of gender violence. 44 sally engle merry has conducted various empirical research studies demonstrating this process, arriving at conclusions that cannot be ignored. one of the first presentations of this research can be seen the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 77 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights does not precede their implementation. in fact, her investigations suggest that “implementation is fundamental to establishing human rights consciousness” (merry 2003: 381). the adoption of the perspective of rights depends on a subjective construction that must be based on individual experiences lived in the social environment. thus the implementation of rights and the existence of social movements involved with the human rights of women in practice, particularly their right to a life free from gender violence, is decisive (merry 2003). the intervention of women’s movements based on the resource of human rights is fundamental for putting the individual experiences of gender violence victims within a wider framework from which the abuse can be considered as a social problem. this can lead to a collective identification which favours the development of an individual consciousness that must overcome the idea that gender violence is confined to a private and individual sphere (schneider 1986: 611 ff.). only this change motivated by the internalizing of the right to a life free from gender violence will allow women to go beyond moral judgements anchored in the breeding ground of a patriarchal society and the demands for protection from violence and its eradication to be met not as a question of mercy, but as a question of justice (schneider 1986: 615, following gilligan 1993: 128 ff.). in conclusion, the implementation of women’s rights in general and the right to a life free from gender-based violence in particular at a local level is fundamental. to achieve this, the rights must be passed into legislation and local practice at an institutional level in addition to the intervention of the women’s movement and organisations. the incorporation of the language of rights can contribute to strengthening the actions of the women’s movement against gender violence. including the discourse of rights within the activism of social movements has been shown to be a positive element in achieving their objectives45. this has also been the case in the fight of the women’s movement for the recognition of full equality, for their reproductive rights and for the eradication of gender violence. the impetus to achieving rights from the “bottom up” approach has an especially important transforming potential. however, as the experiences of the feminist movement in the defence of women’s rights have shown, lowering the guard in the fight for women’s rights could lead to the idea that once rights have been internationally recognised and implemented in national legislation, the obligations and responsibilities for the exercise of these rights lies with the state, an idea which could disarm the women’s movement in its efforts for ensuring the effective realisation of such rights (schneider 1986: 630). a more complex analysis of the mechanisms of social power and the design, on the part of the women’s movement and organisations, of more wide-reaching actions of social intervention complementary to state intervention may perhaps result in a more productive strategy in terms of social change. to see legal change reflected in social transformations, it is in merry (2003: 343-381). she later considered the question within a much broader cultural perspective and provided comparisons with other research studies in merry (2005: 179 ff.) 45 obviously there are opinions to the contrary and, in general, about the limitations imposed by enclosing the feminist struggle in the discourse of rights (elson 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(2002). “from mexico to copenhagen to nairobi: the united nations decade for women, 1975-1985”, journal of world history 13/1: 139-168. the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 81 http://dx.doi.org/10.7208/chicago/9780226520759.001.0001 http://dx.doi.org/10.1080/03085140220151873 http://dx.doi.org/10.1111/j.1468-0424.2010.01614.x http://dx.doi.org/10.2307/797286 http://dx.doi.org/10.2979/indjglolegstu.18.1.121 http://dx.doi.org/10.1080/0308514022000020670 the role of social movements in the recognition of gender violence as a violation of human rights: from legal reform to the language of rights http://dx.doi.org/10.1353/jwh.2002.0028 the age of human rights journal, 6 (june 2016) pp. 60-82 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2930 82 http://dx.doi.org/10.1353/jwh.2002.0028 cultural institutions as a combat sport. reflections on the european roma institute tina magazzini1 abstract: this article aims at problematizing the relation between identity recognition, economic redistribution, and political representation in the debate around roma inclusion in contemporary europe. given that culture has increasingly become politicized, by analyzing the emergence of the european roma institute for arts and culture i reflect on the political and economic potential and drawbacks that cultural identity holds in a european society in which capitalism has turned into a cultural trait. keywords: european roma institute, cultural diversity, recognition, minority inclusion summary: i. introduction; ii. a european roma institute (for arts and culture); iii. discrimination of a “true european minority” and the ethnicization of marginality; iv. roma politics, eri’s positioning and a note on methodology; v. main criticisms. the cultural, the economic and the political; v.1 cultural concerns (or concerns about culture) and counter arguments; v.2 socioeconomic concerns and counter arguments; v.3 political concerns and counter arguments; vi. conclusions. on elitism, culture and ‘the important things in life’ british democracy recognizes that you need a system to protect the important things of life, and keep them out of the hands of the barbarians. things like the opera, radio three, the countryside, the law, the universities...both of them! (sir humphrey, yes prime minister) 1 human rights institute. university of deusto, bilbao (tina.magazzini@deusto.es). an earlier version of this article was presented at the ipsa congress in poznan, poland, 23-28 july 2016. i would like to thank julija sardelic and diana popescu for organizing the panel 'from misrecognition to redistribution: ethnic discrimination and the politics of difference' and providing insightful comments, as well as the anonymous reviewers for their helpful feedback. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 50 cultural institutions as a combat sport. reflections on the european roma institute i. introduction within the debate on cultural diversity management and antidiscrimination in european societies, the roma2 have come to constitute—particularly in the last decade—a minority towards which a full set of ad hoc integration legislation, measures and policies have been adopted. in parallel there has been a rapidly growing literature in the fields of political science and sociology addressing roma representations in politics and policies. the increase in research on roma-targeted policies from scholars such as aidan mcgarry, mihai surdu, peter vermeersch, huub van baar, katrin simhandl, martin kovats, joanna kostka, nicolae gheorghe, will guy, nidhi trehan (among others) have explicitly addressed socio-economic mobility of roma migrants in the context of contemporary european policies on migration and ethnic minority protection. this literature necessarily builds upon anthropological reflections on the nature of ethnic identity and identification, and call into cause debates such as spivak’s strategic essentialism, how to operationalize group ‘ethnicity’ and ‘culture’ into rights (and negation of rights) linked to these identity markers, and discussions around the legacy of gyspsy studies in modern romani scholarship. while a comprehensive review of the existing literature on minority rights in general, and roma identity politics in particular, is out of the scope of this article3, it is loosely within this strand of research that the following reflections can be situated. this article aims at locating the recent european recognition and categorization of the roma as an ethno-cultural minority by analyzing the emergence of a new institutional body intended at promoting roma culture—the european roma institute for arts and culture. the contribution of this article to the wider discussion on identity and cultural integration that this special issue tackles is to analyze and problematize the existing tensions revolving around the issues of cultural legitimacy and knowledge production of minority cultures. because narratives about identity are defined by structures of power (how they are told; by whom; in what context, etc.) i believe that a better understanding of the creation of the european roma institute, and the resistance it encountered, has implications that go beyond the potential for success or for harm that this specific institute holds. such reflections aim at raising some of the dissonances, overlaps and contradictions in how identity politics can be framed in a european society in which capitalism has turned into a cultural trait. 2the term “roma” is used in political documents of the european commission, european parliament and the european council as an umbrella expression “which includes groups of people who have more or less similar cultural characteristics and a history of persistent marginalisation in european societies, such as sinti, travellers, kalé, etc.” (european commission, 2010). this definition, its usage in policy documents and its implications will be problematized later in the article (see section iii). 3for a thorough analysis of expert practices of roma classification see the recently published book those who count (surdu, 2016). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 51 tina magazzini since the narratives of poverty migration and hostility towards the ‘ethnic other’ are often conflated, the initiatives to tackle such issues can also find themselves entangled into more than one aspect at once. in other words, in an enlarged european union in which roma from cee countries have been the great losers of the nineties’ transition to a market economy (kovats, 2012; sigona, 2011; vermeersch, 2012) how can the risk of displacement (in which identity politics tend to displace struggles for redistribution), reification (the essentialization of a culture or a minority) and misframing (the political dimension of misrepresentation) be dealt with and overcome? (fraser, 2000, p. 108, 2005, p. 9) how does a european roma institute for arts and culture affect other policies addressed to the same minority, and what are the strengths and liabilities of this project? in order to explore this conundrum, this article will a) outline what the object of the study is –eri–, and why it is relevant b) provide an overview of the context, in the form of a brief history of how we got to the present debate, and of who the main stakeholders are c) give an account on how the information was collected and situate the specificities of the eri debate d) draft a resumed yet systematized assessment of what the main criticisms that have been brought so far to the eri project are, how they have been addressed by the supporters of the alliance for eri, and organize them according to the three broad themes that emerge as the most relevant ones for this debate (the cultural, the economic and the political)4. the vocabulary used (recognition, redistribution, misframing) is borrowed from nancy fraser’s theory of justice, but the approach taken in this article incorporates the critiques moved to fraser (and much of the recognition theory) which, rather than seeing the problems of displacement and reification as pertaining primarily to social movements and their potentially contradictory claims for recognition, acknowledge the central role of institutions and of the political arena. ii. a european roma institute (for arts and culture) in march 2015 a joint article by george soros, founder and chair of the open society foundations, and thorbjørn jagland, currently serving his second term as the secretary general of the council of europe, announced on the european voice that a european roma institute (from now on eri) was being set up (soros & thorbjørn, 2015). while acknowledging that some of the most salient issues with regard to europe’s roma population are racism and inequality of opportunity, the raison d’être of eri as an institute “of arts and culture” was presented as fundamentally a matter of 4 this analysis is rooted in the conviction that some of the most salient issues in contemporary’s europe culturally complex societies are class, exclusion and racism. for the purpose of this article i will concentrate on the discussion around roma culture/ recognition, with the european roma institute debate as a backdrop, but questions relating to power dynamics and structural (particularly socio-economic) inequalities are impossible to overlook completely. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 52 cultural institutions as a combat sport. reflections on the european roma institute recognition and of implementing art. 27 of the iccpr to the right for roma to “enjoy their own culture”; in short, it has to do with those traits which the first article of this special issue has identified as defining cultural elements of minority groups. more specifically, the opening statement of the article explaining the creation of eri read: “for more than four decades europe’s roma community have wanted to establish an institution that would give their music, art and unique traditions their own stage. across the continent, such bodies exist to celebrate an array of cultures, nationalities and identities. yet, there is nothing of this kind for roma. many feel this absence, particularly among romani campaigners, educators and intellectuals. it compounds a sense of exclusion and denies all of us the opportunity to celebrate the roma influence on our shared cultural life. we are joining forces to help put this right”(soros & thorbjørn, 2015). the article then went on to speak about exclusion, marginalization and segregation, a vocabulary which romani studies scholars, policy analysts and the general public alike have grown accustomed to find systematically linked to the descriptions of europe’s roma. the answers to the question that gave the title to the story (“why we are setting up a european roma institute”) offered by soros and the coe’s secretary general are however fundamentally rooted in matters of cultural identity, rather than socio-economic ones. the main justifications provided for the need of the eri are: 1) combating the negative stereotypes about roma 2) the belief that eri will become a powerful source of self-esteem: “it would act as an important symbol—and symbols are important, as is the ability to tell one’s story in one’s own voice. […] perhaps most important, it would provide a landmark for roma children to look upon and feel a sense of belonging and pride.” (soros & thorbjørn, 2015) 3) explore the ways in which roma life has shaped, and been shaped, by other cultures and forces, underlining similarities as well as differences (this point is however expressed more as a tentative possibility, the main issue remaining that of stereotypes and self-esteem). this core message was reiterated a few months afterwards, when in september 2015 jagland issued the statement: “the council of europe wants to help celebrate the contribution of roma art, history, and tradition to our shared cultural heritage. […] the european roma institute for arts and culture will spread greater understanding of roma culture and challenge unhelpful stereotypes. i hope that over time it will become a source of pride and self-esteem for our european roma citizens” (council of europe, 2015). these affirmations were accompanied by the specification that the project will be roma-led –which it is: the bios of the 16 members of the alliance for eri are available online, as are the details of the four ngo members5– and that funding, resources and political support would be provided by the council of europe and the open society 5see the webpage of the alliance for the european roma institute. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 53 tina magazzini institute (which according to the consultation document prepared by the council of europe secretariat towards a creation of a “european roma institute” in 2014, will be contributing 200,000 euros each per year)6. for anyone who has been following the politics of roma identity over the past years, it shouldn’t come as a surprise that the creation of the eri (or rather, the declaration of intention of the creation of the eri) was accompanied by perplexities and criticism “from the inside”: on whether this is an endeavor that should be taken up by a public body such as the council of europe; on whether this is an effective avenue to pursue the stated aims; and on whether roma should be framed as a cultural minority to begin with. the relatively small but vastly diverse universe of academics, policy makers, activists, non-governmental and international organizations who can loosely be defined as being invested in the cause of advancing rights for europe’s roma have had as divergent opinions on eri as their background and scopes are. arguably, the heated and often personal and confrontational debates that this debate triggered go beyond the set-up of the eri itself. revolving around the concepts of roma authenticity, legitimacy, ethnic representation and cultural hegemony such exchanges have tapped into a complex set of underlying assumptions that often go unproblematized, and whose analysis can help bring some clarity to understanding wider struggles around roma identity politics. so far no criticism towards eri has come from right wing parties nor from mainstream media (possibly, because it is still in the making), but the accusations between roma and pro-roma associations, activists and academics has been particularly polarizing. on the one hand, eri has been welcomed by a number of individuals and organizations as a beacon of hope for addressing stereotypes and countering a negative image of roma identity that is rife in mainstream media and politics; on the other hand it has been accused of doing more harm than good to the advancement of the roma cause by others. the wider question that i believe this controversy raises is: how does the cultural and identitarian debate (the recognition and valorization of roma culture via an institute backed by the council of europe) reflect and/ or shape the political process of representation and of economic redistribution at the eu policy-making level? iii. discrimination of a “true european minority” and the ethnicization of marginality as illustrated in the first article of this issue, europe’s approach to the democratic management of cultural diversity has been –and is– a complex and everchanging compromise between political ideals (the defense of cultural diversity as an ethical imperative), practical needs or potential conflicts that require regulation, and the 6 in the coe secretariat consultation document the estimates given speak about the coe contributing to one third of the budget with 200k euro per year, osf also contributing to one third of the budget with 200k euro per year, and the rest coming from other funders (council of europe, 2014, p. 4). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 54 cultural institutions as a combat sport. reflections on the european roma institute existing gaps and inconsistencies in interpretations of what the “cultural third sphere” to be defended and promoted amounts to (see ruiz vieytez in this issue). while only recently acknowledged by eu policies, ethnic origin and religion are increasingly important markers recognized as basis for discrimination. the latest european legislation seems to take stock of these developments and of the changing attitudes towards cultural diversity, as demonstrated by the ‘tackling discrimination’ section of the european commission dg justice legislation’s repository opening statement. such inception reads “for many years the focus of eu action in the field of non-discrimination was on preventing discrimination on the grounds of nationality and gender. a few years ago, however, the eu countries approved unanimously new powers to combat discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation” (european commission dg just, 2016). the attention towards relatively new categories of discrimination (where the “newness” refers to the categories and not to the discriminations, obviously) with regard to ethnic origin, sexual orientation, age, religion/ beliefs and disability are important steps forward in anti-discrimination laws and policies. if compared to the eurobarometer reports of the seventies, eighties and nineties, the difference in vocabulary, content and concerns are strikingly telling7. additionally, beyond the abovementioned categories (and the possibility of multiple and intersectional discrimination between them), in the last two decades—with a steep curve in policy measures over the past few years—the roma have come to be recognized, or constructed, as a “category” of its own in european directives, recommendations, and reports (surdu & kovats, 2015). generally not subsided under neither of the said groups, yet they are invariably included amongst those minorities considered to be most at risk of discrimination (a quick look to any survey on attitudes towards minorities in europe shows that this concern is well-founded)8, and are often featured in surveys and policies as a stand-alone category. this trajectory is the product of both political and historical circumstances: the balkan wars of the nineties and the breakup of yugoslavia, the swift move of that 7 in a 1970 report detailing the results of a survey study on the “europeans and european unification” (in the six countries of the european community at the time), a large section was dedicated to analyzing what is filed under “cultural resistance of the ethnocentric type”. this was described as inability to identify with a larger community, with the attachment to one’s cultural identity (expressed as the fear to lose this identity) and translated into “a deeply felt, basic kind of resistance [towards a european integration]” (commission of the european communities, 1970, p. 19). it therefore seems that we have come a long way towards building a europe that is more open to cultural diversity, despite the recent rise of populist anti-immigrant parties. 8 every second roma interviewed for the eu minorities and discrimination survey (eu-midis) in 2011 reported that he or she had been discriminated against in the previous 12 months (european union agency for fundamental rights, 2011), and the eu-midis ii from 2015 shows similar data (european union agency for fundamental rights, 2016). according to the pew research center, in 2015, 86% of italians, 60% of french, and more than a third of spanish, german and british populations hold negative sentiments about roma (stokes, 2015). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 55 tina magazzini region towards a market economy, the breakup of the ussr and the eu’s increased attention towards minority protection and rights with the copenhagen criteria for accession, in ways however that inherently encouraged “form over practice” (vermeersch, 2012, p. 6). as a result, central european countries adopted the framework convention for the protection of national minorities and most of them currently recognize the roma as a national minority, but discrimination has all but decreased over the past two decades. in most of western european, despite the fact that roma communities have been residing for centuries in countries such as italy, france or germany, they have not been granted the status of national minority9, and the eu enlargements of 2004 and 2007 have been narrated by mainstream media as carrying the danger of a ‘roma invasion’ from the east (solimene, 2011). with recommendation 1203 “gypsies in europe” (1993), based on a report by josephine verspaget (who later became chair of the council of europe’s special group on roma/gypsies) the parliamentary assembly of the council of europe identified the roma (even though the terminology ‘roma’ in policy emerged later, and the eu documents from the early nineties invariably refer to ‘gypsies’) as a “true european minority”, and more specifically a cultural one, stating that “[a] special place among the minorities is reserved for gypsies. living scattered all over europe, not having a country to call their own, they are a true european minority, but one that does not fit into the definitions of national or linguistic minorities. […] gypsies greatly contribute to the cultural diversity of europe […] be it by language and music or by their trades and crafts” (council of europe, 1993, p. 1).10 the europeanization of the roma issue was further institutionalized by the european parliament resolution of january 2008 which called for a eu strategy on roma, based on a motion by hungarian mep lívia járóka (jároká, 2008)11, and eventually found a middle ground between european political will (and funding) and national responsibility in the approval of the national roma integration strategies (european commission, 2012)12. 9the roma are officially recognized as a national minority in austria, croatia, the czech republic, hungary, montenegro, fyr macedonia, norway, poland, romania, serbia, slovakia, sweden, ukraine; as a ‘traditional national minority’ in finland, and as a ‘racial group protected under the race relation act of 1976’ by the united kingdom. they have no special legal status in most other european countries (bunescu, 2014, pp. 66–67). 10 italics added. for a critical analysis of how, over the 1990s, the roma issue has been increasingly defined in cultural terms, see the article “problems of intellectual and political accountability in respect of emerging european roma policy” (kovats, 2001). kovats’ main argument is that framing the presence of the roma people in europe as a matter of discrimination and of cultural identity, rather than identifying the causes of socio-economic problems faced by many roma people such as poverty, unemployment, poor housing, health etc. serves the interests of mainstream institutions, but is detrimental to the roma communities themselves. 11 the parliament’s resolution was supported by the european roma policy coalition (erpc) as well as by governments of member countries of the decade of roma inclusion, an international initiative launched in 2005 by the world bank and the open society institute to support the adoption and implementation of roma-targeted action plans in eleven former communist countries plus spain. 12 the decision of the european commission to adopt a common strategic framework was largely based on the inability demonstrated by european governments to guarantee access to fundamental rights to its the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 56 cultural institutions as a combat sport. reflections on the european roma institute the growing commitment of european institutions towards the so-called ‘roma issue’ has given heed to questions related to the need to adopt social and cultural policies explicitly directed at an ethnic minority (which however shy away from being affirmative action policies) and to whom the beneficiary population of such policies is composed of13. therefore to identify or be identified as ‘roma’ has come to constitute, particularly in the last decade, an ad hoc category in surveys on discrimination, inclusion/exclusion and marginalization. for instance, the standard classification of discriminated groups according to the latest eurobarometer report “discrimination in the eu in 2015” can be appreciated in the following sample question: “do you have friends or acquaintances who are…? 1) people whose ethnic origin is different from yours 2) roma 3) gay, lesbian or bisexual 4) disabled 5) of a different religion or have different beliefs than you 6) transgender or transsexual” (european commission dg just, 2015, p. 10). according to the formulation of the survey we can draw the conclusion that roma should not be treated as an ethnic minority within other “people whose ethnic origin is different from yours”, nor as a group which has “different beliefs” from the mainstream, but rather as a category of their own. the previous eurobarometer of 2012 went further, and included a specific chapter titled “the case of the roma” which presented roma as “europe’s biggest ethnic minority” (european commission dg just, 2012, pp. 107–117) yet at the same time it clearly set them apart from the section on “ethnic origin as grounds for discrimination” (european commission dg just, 2012, pp. 28–34). similarly, the 2014 report by the secretary general of the council of europe “state of democracy, human rights and the rule of law in europe” featured a stand-alone category of roma14 which was set apart from the section on “ethnic and national minorities” (jagland, 2014, pp. 46–48). in practice, it seems to be a banal platitude to state that roma are an ethnic minority15 (as a matter of fact, they are generally presented as europe’s largest and most discriminated against ethnic minority), even though one that comprises of many highly diverse and dispersed groups (european commission dg empl, 2004, p. 6; tremlett, 2014)16, but their ethnicity is framed as somehow of a ‘different kind’ from that of most roma minorities through the already existing policies and legislation, such as the equal treatment directive (european commission, 2000). 13 since european institutions have no binding power over how each state chooses to identify and recognize its minorities, every country has built its own roma strategy identifying its beneficiaries based on the national perception of what the ‘problem’ is and who counts as ‘roma’ (surdu, 2016). 14 in this report, the definition used is the following: “the term “roma” used at the council of europe refers to roma, sinti, kale and related groups in europe, including travellers and the eastern groups (dom and lom), and covers the wide diversity of the groups concerned, including persons who identify themselves as gypsies.” 15 the issue of whether they are one ethnic minority or many is debatable. roma elites have however always claimed, to the best of my knowledge, that despite great diversity they constituted one people, and that claims to the contrary were attempts to divide and disempower the roma movement. in 2000, the international romani union (iru) publically announced that the roma people constituted a nation. 16the situation of the roma in an enlarged european union released by the ec dg employment and social affairs (2004) specified: “at a number of points in this study, the term “roma” or “romani” is used as shorthand for the broad umbrella of groups and individuals. in no way should this choice of the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 57 tina magazzini other ethnicities –even though there is no legal definition of ethnicity, as discussed in the first article of this special issue and elsewhere (see ruiz vieytez, 2014, p.14). thus, if ethnic origin alone (in the sense of constituting a visible minority with a shared indian ethnic origin) is considered insufficient to understand the representation of roma identity in the public sphere, the issue of cultural specificity must be addressed (how does it differ from mainstream european national cultures, or how has it been constructed as being different from the mainstream?). the council of europe, as mentioned earlier, has played an important role in establishing a narrative that puts the concept of a shared roma cultural identity at the center of the discourse. almost one decade after the earlier cited recommendation 1203 (1993) the parliamentary assembly of the council of europe passed another recommendation 1557 (2002) on the “legal situation of the roma in europe”, picking up and developing the “gypsies in europe” document, but also introducing a radically new element, the concept of roma as a ‘socially disadvantaged group’. point 4 of the recommendation reads: “roma form a special minority group, in so far as they have a double minority status. they are an ethnic community and most of them belong to the socially disadvantaged groups of society” (parliamentary assembly of the council of europe, 2002). while it is well documented that the roma are amongst the groups most at risk of discrimination, and that there are wide gaps in the access to education, housing, health and employment between roma and non roma (european union agency for fundamental rights undp, 2012) by framing this as a sort of intrinsic characteristic of the roma themselves (and not of the structural and institutional racism of europe’s majoritarian societies, surmountable by changing the dynamics and power relations at play within these societies) within a wider framework that, up to that moment, had emphasized roma’s minority culture status, it risks conflating the two issues. while well intentioned, and founded upon a legitimate concern for a real situation of disadvantage, this kind of language can potentially entrench, rather than help overcome, stereotypes on roma, naturalizing the criteria used to evaluate roma’s human capital as one of poverty, exclusion and marginalization. examples of this approach of thinking of the roma as intrinsically problematic abound, and further articulation of this can be seen in point 9 of the same recommendation, which states “[t]he majority population must accept roma into society without assimilating them, and support roma as a disadvantaged social group. roma have to accept the rules governing society as a whole, and they can be called upon to be more active in handling their own problems, but this must be associated with appropriate conditions, encouragement and incentives provided by the state.” above and beyond the paternalistic tone, such statement seems to identify the roma as both the victims and responsible of exclusion, forgetting that the drivers of marginalization are wider structures of economic and political power17, and terminology be taken as an endorsement of approaches aimed at homogenizing roma and other groups perceived as ‘gypsies’ in europe or at eliminating the rich diversity among roma, gypsies, travellers and other groups perceived as ‘gypsies’.” 17point 5 of the same recommendation states: “most roma are currently faced with a rather severe economic situation in most of the member countries of the council of europe. despite efforts in the social the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 58 cultural institutions as a combat sport. reflections on the european roma institute making the implicit assumption that roma culture is somehow at odds with ‘the rules governing society as a whole’. this definition is not inconsequential, as it has informed much of the recent european policy-making on roma inclusion. it is interesting to observe how, in different settings, the definition of ‘who the roma are’ has been declined to fit different agendas over the past years (surdu, 2016), and particularly the definition of the roma that ended up being adopted in the european commission communication 173 “an eu framework for national roma integration strategies up to 2020” is (european commission, 2011). this reads: “the term ‘roma’ is used—similarly to other political documents of the european parliament and the european council—as an umbrella expression which includes groups of people who have more or less similar cultural characteristics, such as sinti, travellers, kalé, gens du voyage, etc. whether sedentary or not; around 80% of roma are estimated to be sedentary” (european commission, 2011, p. 2). this definition follows and references another similar one, the commission staff working document (european commission, 2010) which is cited at note 2 of this article, and with which the only significant difference is that the definition from 2010 does not explicitly cite the gens du voyage18, it includes the sentence “they share a history of persistent marginalization in european societies”, and (importantly) there is no mention of the issue of nomadism/ sedentary lifestyle. it thus seems reasonable to interpret this gradual shift in definitions as an attempt, on behalf of the european commission, to emphasize the socio-economic dimension of disadvantage of the roma while moving away from the cultural stigma element—particularly in the form of atavic and romanticized nomadism that the council of europe had been promoting. the shift towards a focus on the socio-economic dimension is substantiated by the contents of the communication on the framework for the national strategies of 2011, which opens with a section titled “improving the situation of roma: a social and economic imperative for the union and its member states”, and the fact that in the whole document the word socio-economic appears 29 times, while the word culture not even once. field, the market economy, especially the neo-liberal version of it, has marginalized disadvantaged social groups including roma even in the most developed european countries. in central and eastern europe the economic and political transition has aggravated their socially disadvantaged situation” (parliamentary assembly of the council of europe, 2002). 18 the suggestion that the addition might not be coincidental is purely speculative. however, given the statement of viviane reding, dg justice commissioner at the time, who likened sarkozy’s government deportation of over a thousand romanians and bulgarians of roma ethnicity to vichy france’s treatment of jews during the second world war—a policy that was developed after an incident in loir-et-cher involving french gens du voyage— it is not so far-fetched (doytcheva, 2015). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 59 tina magazzini iv. roma politics, eri’s positioning and a note on methodology above and beyond the council of europe, the european commission, and the european parliament, some of the most relevant actors, stakeholders and policies in shaping the discourse on roma identity in the past decades have been19: the iru (international roma union), which promoted the first romani congress in 1971 and obtained consultative status at the un, and can be seen as the birth of romani nationalism; the germany-based roma national congress (rnc), which advocated for the rights of roma immigrants in the 80s and 90s; the european roma and travellers forum (ertf), created in 2004 with the support of the finnish government, functions as an umbrella body of different romani grassroots organizations. it managed to maintain privileged relations with the council of europe, where it held consultative status until 2015. it developed the largest and possibly most representative network of roma civil society, but lost much of its leadership and status in the past few years. on 30 march 2015, the ertf issued a (explicitly negative) position paper on eri; academia, and particularly the gypsy lore society –founded in 1888 in great britain with the stated goals of promoting “the study of gypsy, traveler, and analogous peripatetic cultures worldwide; [the] dissemination of accurate information aimed at increasing understanding of these cultures in their diverse forms” (the gypsy lore society, 2016)– and the european academic network on romani studies (earns), a joint programme of the european commission and the council of europe created in 2011 as an interface between academic researchers and political decision makers, with the objective of allowing “for the implementation of better conceived policy initiatives based on reliable evidence” but whose funding was not renewed in 2015 (matras, 2015). opinions within these networks have been mixed, but yaron matras, a linguist and member of eanrs’ scientific committee, has been one of the most vocal critics of eri; the project on ethnic relations (per, 1991-2012) was founded in anticipation of interethnic conflicts that were to erupt following the collapse of communism with the support of the us department of state. it had a prominent role in setting the agenda for the joint council of european and osce human dimension seminar, and included leading activists nicolae gheorghe and andrzej mirga (one of the founders of the alliance for eri), as well as romani scholar and linguist ian hancock, and resulted in the creation of a ‘contact point for roma and sinti’; the open society foundations and george soros, the key supporter of eri, has been involved with pro-roma projects for over two decades, promoting initiatives such as the european roma rights centre (errc), the roma 19 a full analysis of the romani civil society movements and ngos is out of the scope of the analysis, nor could a few paragraphs do it justice. the purpose of this section is simply to situate eri within the constellation of roma and pro-roma institutions, associations and activist groups that have emerged in the past few decades. for a more in-depth analysis, see, among others (bíró, gheorghe, & kovats, 2013; bunescu, 2014; friedman et al., 2015; matras, 2013). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 60 cultural institutions as a combat sport. reflections on the european roma institute participation programme, the european roma coalition programme (ercp), the european roma grassroots organization (erio) and the roma education fund (ref); other initiatives include the european language curriculum and the central council of german sinti and roma (the latter is amongst the founders of the alliance for eri); in the last decade other institutional projects have emerged, such as the decade for roma inclusion (2005-2015) –a multinational project backed by the world bank, osi, undp, osce, the coe, the ertf and national governments aimed at promoting roma inclusion– and the european platform for roma inclusion (from 2008 onwards) which brings together the eu, ios and national governments20; the nris (national roma integration strategies, 2011-2020), were developed in almost all eu countries in 2011-2012 following ten basic principles (european commission, 2012), and revolved mainly around ‘bringing up to level’ roma communities with mainstream european societies on the four pillars of health, housing, education and employment. additionally, the programmes romed (roma mediators) and romact (capacity-building for local administrations to work with vulnerable roma population) have been implemented, albeit not in all countries and managed by the council of europe21. the alliance of cities and regions for the inclusion of roma is another coe-sponsored platform that has endorsed the eri. against the background of roma-targeted european policy developments, of the wider changes in migration and integration politics of the past few years, and of the evolution of the roma civil society movement(s), eri has been in need to situate itself among the already existing roma networks, policies and programmes, and so far has struggled to do so. there are a number or reasons for this, and its supporters might argue that its mandate and mission have been grossly misinterpreted. in the next section i will go over the main criticism that it has received, organized by what i identify as being the three main ‘threats’ or liabilities of the project. these are, i argue, the dangers of reification (that eri’s recognition struggle might end up simplifying and reifying roma identity), of displacement (that eri’s recognition struggle risks eclipsing the socioeconomic issues of redistribution) and of misframing (that eri’s recognition struggle is elitist, undemocratic, nontransparent and that it misrepresents the community’s boundaries). these reflections, which attempt to problematize the existing debate rather than resulting in any strong “taking of position” on the desirability or not of eri, are based on qualitative analysis, and the empirical material they build upon has been gathered according to the principle of triangulation between secondary sources (legal and policy 20 some see in these recent multinational projects that attempt to bridge the european level and national governments on roma inclusion the weakening of the ertf (jacquot & vitale, 2014). 21 for information on the national roma integration strategies, see “eu and roma” at http://ec.europa.eu/justice/discrimination/roma/index_en.htm. for information on the romed and romact programmes, see http://coe-romact.org/. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 61 http://ec.europa.eu/justice/discrimination/roma/index_en.htm http://coe-romact.org/ tina magazzini documents pertaining to the eri’s creation and to roma targeted policies and legal definitions more in general), participant observation by taking part in a number of events that have been carried out over the past few years by the epistemic community that works on this topic, by following the ongoing email exchanges within the earns, as well as through informal conversations with promoters of eri, eu officers and other stakeholders involved in the process22. this article being part of a larger long-term research, some of the background information was also drawn from interviews with national policy-makers involved with the drafting and/ or implementation of the roma integration strategies (in italy and spain), personal involvement in european commission and council of europe activities, programmes and projects, as well as in a wider ongoing reflection amongst colleagues working in academia, in ngos and in governmental organizations on how to bridge information and transfer knowledge between (and within) different fields to contribute to evidence-based inclusion policies. v. main criticisms. the cultural, the economic and the political analyzing the debates, the concept notes, the exchanges between the different actors that have expressed their opinion on the set up of a european roma institute so far, taking into account their official and unofficial statements23, the main concerns of the critics to eri seem to be of three fundamental types: cultural (the problem of reification), socioeconomic (the problem of displacement) and political (the problem of misframing). i here summarize the main concerns of each, in order to make explicit the issues raised and the spheres of concern, to see which have been or can be successfully addressed, and which ones not (or with more difficulties). also, a close look at each individual aspect can help challenge broad generalizations and distinguish between critiques based on the form the institute is taking, on its competences, and help avoid misinterpretations. 22 in practice, this consisted of closely following the development of the eri over the past two years, particularly by taking part in the two days closed workshop and one day open conference “nothing about us without us”, where the eri project was presented and debated (budapest, october 2014) and which resulted in a special issue of the rights journal of the errc (ryder et al., 2015); by participating in various eanrs meetings and in its final showcase event, which took place in strasbourg in april 2015 and included a roundtable reflection with ulrich bunjes, coe’s special representative of the of the secretary general for roma issues at the time, accompanied by formal and informal reflections around the material circulated on this topic, such as yaron matras’ post-mortem or ‘balance sheet’ of the network, which was mostly about eri (matras, 2015). other events and conferences attended in which the role and desirability of a roma cultural institute were discussed include “when the oil runs out, people will need horses” (london, june 2015) and “challenging romanophobia” (university of brighton, november 2015), in which members of the alliance for eri presented their vision of the institute and made a case for its necessity. 23 for a not exhaustive, but still relevant and useful chronology of the plans for a european roma institute, see a chronology: plans for a european institute (fosztó, 2015). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 62 cultural institutions as a combat sport. reflections on the european roma institute v.1 cultural concerns (or concerns about culture) and counter arguments some of the criticisms raised to the eri have revolved around the legitimacy of cultural production. preoccupation on behalf of (mostly non roma) romani scholars that the eri would lay claim to academic authority and turn into some kind of censor or official arbiter for the standardizing of what romanipé is or should be, have been echoed by the european roma travellers forum’s statement on eri: “culture is intimately linked to the life and identity of the community. it can be promoted and assisted but it cannot and should not be directed from above by a political organization. a top-down imposition of a standard culture would deny the rich pluralism of genuine roma traditions” (european roma and travellers forum, 2015, p. 2). on a similar note, monica rossi has noted: “theoretically, the idea of a ‘roma culture’ (any culture, really) as a unique block is meta historic as a category […]. the term ‘culture’ refers to an anthropological concept ideated in 1871 by e.b. tyler and is a tool which was born under a scientific paradigm that contemporary anthropologist call ‘essentialism’. in the globalized and fundamentally intercultural world we are living in, the use of such concept is unsustainable in scientific terms as it suggests a static vision of human groups that no longer exists, thus making the very name of the institute obsolete” (rossi, 2014)24. in response to this critique, eri promoters have noted that cultural institutes have been set up in history by virtually every national, regional and cultural minority. one member of the alliance put it this way: “well, i see eri as a space for cultural autonomy of roma, where roma get together and refine this public space. not as a national state, but for issues that are important for our identity, for our priorities, for shaping a discourse, reacting to something. i think that was the general hope.” reflections upon the role of the institute invariably bring up, as is to be expected, questions about ownership and roma cultural production. one supporter of the institute reflected upon the role that the eri could play by calling into cause the issue of roma participation and having a voice in shaping the ways in which roma are portrayed: “in terms of culture i think we need to take the initiative: we know what our culture is, we can share our cultural experience, and it’s for us to share it. it’s not for other people to define us. this is where i see the role of arts and culture. […] and i think that if we do a good job artistically— good quality writing, good character development, just like any good piece of art, that has universal themes and concepts, then that will translate and will be something to be shared with non roma as well, because we’ll be sharing the universality of our human experience. but we can only do that if we are in control, through institutes like eri, 24this brings up the open-ended debate on whether the roma can and should be considered one ethnic minority to begin with, which has been explored in detail elsewhere (friedman et al., 2015; mcgarry, 2014; van baar, 2011; vermeersch, 2012). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 63 tina magazzini through artists that have a vision of something creative, original and that can be shared. […] we need culture, we need stories, we need paintings, we need poetry, we need everything. that is what establishes a relationship.” there is, of course, always an inherent risk in the institutionalization of any expression of identity and culture, in that such an operation always requires a simplification of sorts, but this is far from being a case unique to the roma, or about roma cultural identity. it should suffice to remember france’s attempt to organize a forum to debate and define “frenchness” a few years ago and its failure, despite the body politics behind it being one of the oldest, most centralized and homogenized existing nation-states25. the wider issue with respect to the roma has to do with the fact that this process is still in the making, and as such there seems not to be (as of yet) shared foundational myths or cultural traits that are already agreed upon and accepted by the whole of the groups included under the cloak of roma—other than the past and present widespread discrimination, which in turn risks being framed as an identity trait in and of itself. referring to the european commission’s definition used in the framework strategy document of 2012, matras has rightfully pointed out that “although an effort can be recognized here to confront stereotypes through emphasizing that the majority of roma are sedentary, the definition is self-contradictory in referring, on the one hand, to completely separate populations such as sinti/kale, the gens de voyage and the vague notion of ‘travellers’, and on the other hand, to ‘similar cultural characteristics’. there are, empirically, no similar cultural characteristics that can help identify the groups named in this definition” (matras, 2013, pp. 37–38). however, very similar statements could be made with respect to virtually every people now constituting a nation, previously to the processes of nation-building and state-building that took place over the past centuries. the difference and specific difficulty of the roma in producing and establishing a set of ‘similar cultural characteristics’ is not so much that romanés is not spoken by all roma, but rather that this endeavor involves a minority that does not have a strong territorial concentration and whose members are also, beyond being roma, nationals of different european countries who have an already strong(er) identity they often subscribe to. another criticism raised to eri that falls in the cultural realm is that it claims to want to educate non roma about roma culture, but that by creating a arts and culture institute which is explicitly romani, it fosters cultural self-segregation. to this, one of the eri founders has responded: “the role of eri is to help roma artists to give them visibility, to come together and work together. and they are of course free not to do so or to go mainstream, but there are currently 10.000 roma works rotting in 25 in 2009 nikolas sarkozy charged éric besson, the minister of immigration, integration, national identity and mututally-supportive development at the time to organize a “[g]reat debate on national identity”(see jeannot, tomc, & totozani, 2011; le monde, 2009a, 2009b). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 64 cultural institutions as a combat sport. reflections on the european roma institute archives and improper spaces in central and eastern europe, and do you know how many roma artists were ever exhibited in mainstream cultural spaces? two of them. so how can we talk about segregating romani arts and culture, when it doesn’t in fact have any visibility at all?” all these critiques are, in one way or another, rooted in the preoccupation that the identity model of recognition tends also to reify identity. in nancy fraser’s words, “stressing the need to elaborate and display an authentic, self-affirming and selfgenerated collective identity, it puts moral pressure on individual members to conform to a given group culture. cultural dissidence and experimentation are accordingly discouraged, when they are not simply equated with disloyalty. so, too, is cultural criticism” (fraser, 2000, p. 6). the by-product of recognition can be, in this sense, misrecognition: by reifying group identity it might overshadow the struggles internal to the group for authority and the politics of cultural identification, lending itself to simply reproducing the dynamics it was born to fight against. whether the eri is successful in its bid for the promotion of arts and culture as a means to empower roma artists and intellectuals largely lays in the mechanisms and structures that it will set up to cope with this risk. one of its supporters elaborated on the potential of the content of roma artistic production with the following: “when i’m talking about a culture of roma, by roma, for roma, i am talking about creating something new, something avant-garde. i am talking about creating something that is not excluding traditional roma dance and music, but not exclusive to that. there are new things that we can develop because we are a culture, and we are a people, and just as every other culture and other people we are continuing to evolve. there are new things that are happening: we are not stuck in time, even though often we are studied as if we were stuck in time, in anthropology and sociology. and i think that that is something that art and culture can help bring to light.” v.2 socioeconomic concerns and counter arguments these kind of criticism largely stem from the fact that the meaning of integration, originally used in eu documents as a policy to fight social exclusion (daly, 2006) has in more recent times come to indicate immigrant minorities’ route to becoming part of their host country, and has been further redefined in the case of roma to (re)include a socioeconomic dimension. as monica rossi wrote in her position piece on the eri, “regardless of how you portray the roma (music, artistic contributions etc. etc.) citizens will continue to have in mind the image of destitute roma begging with their children and living in shanty towns […]. it is not clear how the situation of destitute roma will be improved by the existence of this institute. […] if you solve the problems at the ground level, also the perception of roma citizens by non roma citizens are going to improve, but it must be based on the creation of real life opportunities for mutual exchange. in a europe the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 65 tina magazzini dominated by the crisis which is affecting all member states with severe cuts to social services, money should be invested in initiatives which are sustainable under a costbenefit perspective” (rossi, 2014, p. 2). without entering the debate on the sustainability of culture (littoz-monnet, 2007; psychogiopoulou, 2006; tretter, 2011), this position makes a claim that cultural productions can neither serve as a substitute to anti-discrimination, nor that it is realistic to expect that cultural performance and the arts can fill a gap in the fight against prejudice and exclusion, or encourage states to enforce equality and human rights legislation. this is a rebuttal of the claim made in the concept note for eri: “sectoral policy achievements have […] been insufficient to produce a major and deep change, not least because they address primarily socio-economic challenges without tackling the root causes that stand in the way of meaningful progress: ignorance, hatred and mistrust” (the alliance for the european roma institute, 2015, p. 2) and can be articulated in a few different points. on the one hand, roma cultural performances have been widely appreciated (and at time appropriated) by majoritarian societies over the centuries, yet racism against roma continued to prevail. on the other hand, the european roma and travellers forum has claimed that “is absurd to decry socio-economic efforts. ignorance, hatred and mistrust are intimately linked to the living conditions of a majority of the roma and the first step against anti-gypsyism and eliminating stereotypes is to provide the roma with decent housing, education and employment and helping them to enter into roles in which they have hitherto not been accepted.” (european roma and travellers forum, 2015, p. 1)26.on a similar note, martin kovats, ex advisor to the office of commissioner spidla on the development of the european roma platform and common basic principles for roma integration27, and more recently special adviser to ex employment commissioner lászló andor, formulated in clear terms what, borrowing from fraser, i have called the risk of displacement: “aren’t ignorance, hatred and mistrust more likely to be symptomatic of social and economic relations than their ‘root cause’? […] in making the ‘root causes’ of poverty, exclusion and discrimination (as well as of multimillion euro policy failure) matters of the mind, no consideration need be given to the structural and systemic factors that many of us believe play an important role in how roma is understood. the system is fine, just the people that are wrong. they think wrong thoughts about roma. furthermore, it is suggested that these wrong thoughts are essentially a legacy of the past (rather than 26the odd thing in the official statement issued by the ertf on the non-paper that was leaked about the initial plans to set up eri was that they reproduced, practically verbatim, the positions expressed by yaron matras in eanrs. 27the 10 common basic principles for roma integration constitute the guiding principles for the framework on roma integration 2020, and are: 1) constructive, pragmatic and non-discriminatory policies; 2) explicit but not exclusive targeting; 3) inter-cultural approach; 4) aiming for the mainstream; 5) awareness of the gender dimension; 6) transfer of evidence-based policies; 7) use of european union instruments; 8) involvement of regional and local authorities; 9) involvement of civil society; 10) active participation of the roma. while point 3 can be interpreted in ways that might lead to cultural recognition policies, the whole approach is clearly geared to achieve equality of opportunities in the socio-economic dimension. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 66 cultural institutions as a combat sport. reflections on the european roma institute generated within contemporary society). what is required is re-education or at least some good pr and the promotion of a ‘positive image’. these neo-liberal ideology may be the answer, but there is no reason to think so” (kovats 2015, earns email exchange). nancy fraser, in her 2000 article on rethinking recognition, identified two different possible branches of the issue of displacement: one possibility is to see misrecognition as a problem of cultural depreciation, so that the origins of injustice are seen in discourses, and not as socially grounded, institutionalized norms. the other option is to acknowledge that cultural injustices are linked to economic ones, but to see the problem from a culturalist perspective, thus assuming that maldistribution is simply a secondary effect of misrecognition. the eri positioning, as presented in its original concept note, could be associated to this second way of seeing things which understands economic inequalities as expressions of cultural hierarchies: “it follows from this view that all maldistribution can be remedied indirectly, by a politics of recognition: to revalue unjustly devalued identities is simultaneously to attack the deep sources of economic inequality; no explicit politics of redistribution is needed” (fraser, 2000, p. 4). in short, what comes first, poverty or the stereotypes about the poor? this begs an additional question of whether, and eventually how much, the stereotypes about the roma have to do with mental associations of the stereotypes of marginalization with an ethnic group, what kind of contact exists between members of majority society and roma individuals and communities, and what role cultural production and representation (particularly mainstream media) plays in this. one commentary of an eri supporter when asked to locate the socio-economic issue within the making of the eri was: “because when we start talking about the confusion between class/ socio-economic status and ethnicity, when that becomes a problem, as it is in media and very much in europe today… if we have people who are roma and who are middle class but who are passing for white, then maybe at some point they intermarry and maybe they don’t share everything with their children, and roma people are also forgetting that they are roma, of romani heritage. that’s also a problem.” v.3 political concerns and counter arguments the main criticism related to what i have identified as the problem of misframing has to do with whether eri is an independent institute or part of an intergovernmental agreement within the council of europe (something similar to what the ertf used to be). according to the alliance, eri is to be an independent body, with no ambition of turning into a political representative organization aiming at replacing existing structures or competing with them (brooks june 2015, earns email exchange). the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 67 tina magazzini in response to this claim, concern has been expressed about the difficulty of playing a genuinely independent role when the funders are two big players of roma identity politics themselves (matras september and november 2015, kovats july 2015, earns email exchange). the opening statement of the 2015 alliance for eri concept note on the creation of the institute reads “ the ‘european roma institute’ (eri) is proposed as an independent organization with the mission of increasing the self-esteem of roma and decreasing negative prejudice of the majority towards the roma by means of arts, culture, history, media” (the alliance for the european roma institute, 2015, p. 1). the same concept note, however, also identified as one of eri’s core functions that of providing policy advice: “as a policy adviser eri will provide expert advice in its areas of competence, when required by the council of europe, its members and other partners” (the alliance for the european roma institute, 2015, p. 3). it can of course be argued that “its areas of competence” having been identified as arts and culture, there is no competition between the eri and organizations such as the ertf, nor is there necessarily a conflict of interest in being the beneficiary of the council of europe’s policies, and providing advice to the same body on issues regarding roma culture. this however becomes less clear cut should eri start advising the council of europe, its members, or other partners on topics that are of political nature, such as inclusion policies and plans for roma minorities. this is a different matter from the debate around who holds legitimacy of cultural production on roma. as mentioned in the section on cultural criticism, some scholars expressed their concern about the potential consequences of appointing an official arbiter (eri) in matters of (roma) cultural legitimacy. regarding power structures and the vision of eri as a threat that might ‘police culture’ and oppose scholarly meritocracy, it has been pointed out that there already is, and there has been for quite a long time, a strand of literature and of specialized scholarship on romani culture that has, for better or for worst, shaped the terms of the debate up until now. the fact that these studies have so far come mostly from non-roma academics, and not from roma activists, artists or lobbyists does not make them, per se, more objective, since meritocracy itself is shaped by a cultural understanding of worth and deservingness. in the words of a member of the alliance for eri: “on the issue of power structures i think we have to go beyond just talking about media: of course it is an important factor in reproducing and strengthening anti-gyspsysm, but we have to look beyond it. and another important arena where anti-gypsysm is produced and reproduced is academia. we have to touch on this, because what happened, and what has been an interesting experience to observe about eri, is that opposition to this initiative has come from two circles, mainly: one were some roma from the ertf, because they have a vested interests in securing more resources for themselves; and then it was a bunch of non roma academics manipulating discourses and ideas about eri that we chose not to answer to. about meritocracy and the objective, scientific the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 68 cultural institutions as a combat sport. reflections on the european roma institute approach to social sciences dealing with roma, this critique really is nonsense: because on the one hand it is assumed that academia is guided by meritocracy, when it is very clear that is not only guided by that. [...]too often you hear the argument that if you are roma, you cannot be an academic on roma studies, just because you would be biased. i don’t know how to react to this, and how to overcome these discourses, because i would expect a more friendly environment, i expect that these scholars would understand what romani culture is. and there are moral and ethical considerations…i simply don’t know how to work on that.” while the issue of knowledge production and roma-led cultural representations pertain to the field of recognition, it is difficult for it not to ‘spill over’ into politics. going back to the ‘areas of competence’ of the eri (on which advise might be sought from policy-makers), categories become somewhat blurred. should eri be exclusively an artistic endeavor, it would most likely not have been met with the same degree of hostility from certain sectors. art and culture are however never politically ‘neutral’, and even less so in contemporary europe, where culture—due to its flexibility and ambiguity—has become a very apt concept for those wanting to defend the existing political order. the idea that racism and inequality are fundamentally a culturalized problem to be tackled by culturalized measures has been found problematic by many (mokre, 2013), ever more so when it is met by a “trickle down minority social integration” approach in politics, which translates into the proposition “growth first, social and minority inclusion will follow” (cianetti, 2016, p. 18). additionally, frame-setting has to do not only with how the problem is addressed, but also with the ‘scale’ at which it is addressed, which is among the most consequential of political decisions. according to fraser, the problem of misframing concerns the boundary-setting of the political, and can be considered the defining form of injustice in the globalizing age. she identifies the problem of misframing where social movements impose ‘a national frame on a global problem’ (for example by ignoring the responsibility of the financial markets, global economy and offshore factories on social dumping). in the case of roma identity politics, the critique seems to go along similar lines, but the directionality is reversed, since the concern is that roma identity is being framed as a european transnational one while what is being overlooked and overridden are the rights of eu citizens who have not only an ethnicity and minority culture, but also citizenship rights. the wider preoccupation of many scholars is with the ‘europeanization of roma’ (friedman et al., 2015; van baar, 2015; vermeersch, 2013). in practice, the main concern is that framing roma as a transnational european minority might have the unintended consequence of ‘absolving’ single eu member states from (culturally, among other things) integrating the roma minorities who live on their territory28. the 28by cultural integration i do not mean assimilation, but rather a comprehensive set of policies that could incorporate roma culture and history into school textbooks while providing roma with equal opportunities. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 69 tina magazzini risk, as seen by some, is that of naturalizing the fact that roma minorities are treated as second-class citizens in their own countries. vi. conclusions. on elitism, culture and ‘the important things in life’ after providing some background for the emergence of roma identity politics in contemporary europe, in the previous section i grouped the critiques moved to the project of a european roma institute according to three broad categories: cultural (the problem of reification), economic (the problem of displacement) and political (the problem of misframing). in elizabeth andersons’ vocabulary, these can be thought of as inequalities of esteem –when some groups stigmatize, demean and monopolize honorable status to themselves–, socio-economic inequalities –when different set of rules apply to different groups depending on their socio-economic status–, and inequalities of standing –or political power, in the sense of a society which weights the interests of members of some groups more heavily than others (anderson, 2010, 2015). according to the documents, exchanges and debates held about eri to date, the declared purpose of its proponents is clearly that of tackling the first set of issues: that of cultural recognition and esteem. nonetheless, given that there are increasing instances in which economic and social problems are constructed as “cultural issues” (particularly in relation to migrant communities, with marginality seen as a ‘cultural’ ill of the poor), the ways in which eri will carry out its activities, and what kind of definition of culture its members will adopt, will determine whether the institute is capable of addressing the identified challenges. the wider picture in which the eri debate can be situated is that, in modern times, the concept of ‘race’ has gradually turned into ‘ethnicity’, and ‘ethnicity’ into ‘culture’, which has come to occupy a more subtle, pervasive and versatile social space –a good example of which is what has been labeled “reasonable anti-gypsism” (van baar, 2011). in this sense, while the hybridity of roma identities makes it difficult for roma to present a coherent ‘romani voice’ in cultural terms, mcgarry has suggested that “it is the political identity of roma which has the capacity to change through formal representation in the public sphere with roma actively determining how they are understood” (mcgarry, 2014, p. 770). however, there is no reason to show that political unity might be more easily achieved than cultural representation. cultural identity as an economic, status, or upward mobility opportunity also plays a role: roma culture has historically been appreciated, but generally as a ‘low culture’ compared to things such as the opera and academic scholarship. this calls into question what the purpose of culture is to begin with, and what is its function. in this regard, one of the alliance members commented: “the main focus of eri will be to address roma in a positive way. because up until now the dominant discourse is that roma are an issue, the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 70 cultural institutions as a combat sport. reflections on the european roma institute they have problems, they are a problem … and we want to show that you can look at roma from another perspective. […] to give you an example, when we talk about roma events, it is always about music, and dancing. that’s a folklorization of what we mean by romani arts and culture. nobody talks about the works of roma artists who deserve recognition and visibility. so when people think of roma culture it is not ‘high culture’, we always think of roma ‘low culture’…so at one moment, as a joke, i was thinking that we could give eri a more controversial name, something like ‘roma academy for verifying arts, high culture, and top sciences’.” beyond the irony, this statement raises the important point of conceptualizing culture and cultural systems as extensions of power. the fact that berlin was chosen as the city where eri will be set up holds an important symbolic value, as does the recent appointment of valeriu nicolae, a romanian roma that comes from grassroots activism, as special representative for the secretary general for roma issues at the council of europe. the decision regarding who is appointed as executive director of eri (an open call was launched by the alliance in august 2016) will give a better sense of the direction in which the project is moving. as bourdieu wrote in his distinction: a social critique of the judgment of taste, “for an adequate interpretation of the differences found between the classes or within the same class as regards their relation to the various legitimate arts, painting, music, theatre, literature, etc., one would have to analyze fully the social uses, legitimate or illegitimate, to which each of the arts, genres, works or institutions considered lends itself” (bourdieu, 1987, p. 18). in order to contribute to a meaningful interpretation of these struggles, the role of academia in general, and romani studies in particular, could and should be that of adopting a more inter-disciplinary and intersectoral approach to the topics of ethnicity, culture, and knowledge production. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 71 tina magazzini references anderson, e. 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"the european union and the roma: an analysis of recent institutional and policy developments". european yearbook of minority issues, (9), pp. 341–358. the age of human rights journal, 7 (december 2016) pp. 50-76 issn: 2340-9592 doi: 10.17561/ tahrj.n7.9 76 the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 203 addressing the paradox: counterinsurgency, human rights and women in northeast nigeria ibukun david* abstract: counterinsurgency (coin) operations often result in widespread human rights violations because coin operations are usually premised on the erroneous assumption of irreconcilable tension between human rights and national security. by reviewing narratives that frame official discourse on counterinsurgency and human rights in nigeria as well as locating women at the heart of the debate, this essay argues that assumption of incompatibility between human rights and national security can explain the widespread rights violations associated with coin operations against boko haram in northeast nigeria. a gender-sensitive-right-based approach to coin is therefore recommended. keywords: insurgency, counterinsurgency, human rights, northeast nigeria, boko haram, women, national security summary: 1. introduction. 2. clarification of concepts. 3. women and the human rights cost of counterinsurgency in northeast nigeria. 4. explaining human rights violations in coin operations. 4.1. literature review: the prevailing conceptual approach to coin-human rights nexus. 4.2. theoretical implications of the prevailing conceptual approach. 5. nigerian coin frameworks and subordination of human rights in coin operations. 6. recommendation. 7. conclusion. 1. introduction the present counterinsurgency (coin) operations of the nigerian state in the northeast of nigeria can be linked to the violent insurgency of jama’a ahl assunna lida’wa wa-al jihad, better known as boko haram. historically, the boko insurgency can be seen as part of nigeria’s long history of religious extremism and insurrectionary islam that dates back to the jihad led by usman dan fodio in the late eighteenth century (see hansen, 2020; walker 2012; loimeier 2012). at the base, it can be explained as part of the tradition in northern nigeria of using islam to justify insurrection against a corrupt ruling class (hansen, 2020). there are however contestations about when exactly the group was established. for instance, while loimeier (2012) claims that the group was formed in the early 1990s, mongunu and umara (2014) trace its origin to 2002. despite the contestations surrounding the date of origin, there is a consensus in the literature that the group was founded by mohammed yusuf, a maiduguri-based islamic cleric (see monguno and umara 2014; loimeier 2012). during the early formative years, the activities of the group were centered chiefly on denouncing nigeria’s patrimonial governance system and promoting its vision of a society free of corruption (see ladbury et al. 2016). boko haram however metamorphosed from a largely non-violent group under the leadership of mohammed yusuf into a violent insurgency that often adopts terrorist tactics under abubakar shekau starting from 2009. * department of international relations, obafemi awolowo university, ile-ife, nigeria (ibkdvd@gmail.com) addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 204 some scholars have therefore referred to the period before 2009 as the proselytizing stage of boko haram (see kyari mohammed, cited in hansen, 2020, p. 8). violence attributed to the group during this earlier stage was explained primarily as response to the heavy handedness of the secular state (see hansen, 2020). since 2009 when the group declared jihad against the nigerian state, several high profile bombing attacks on both the state and the civilian population have been attributed to the group, and therefore prompting former president goodluck jonathan to appeal at the time that the group be designated an international terrorist organization. some have located this violent twist in the activities of the group in the 2009 confrontation with security forces that led to killing of hundreds of its members and the arrest and subsequent death of its founder in controversial circumstances while in police custody (see ladbury et al. 2016). at the very core, boko haram is based on a radical islamic ideology that is opposed to western values and institutions (see walker 2012; loimeier 2012). importantly, the group derives its name, boko haram (which literally means western education is forbidden), from its rejection of western values. accordingly, boko haram primarily aims at preventing the spread of western values and erecting in place a system based on islamic sharia law all over nigeria (see ladbury et al. 2016). to achieve its objectives of creating an islamic state in the country, boko haram draws on a narrative of resentment and vengeance against the secular authority of the state (see blanchard and cavigelli 2018). the attack on the un building in abuja in august 2011 could be interpreted as further reinforcing the group’s ideology of opposition to western values and institutions, especially if the un is viewed as symbolizing western values. boko haram came into national and international reckoning starting from 2010 when its activities assumed a more violent twist posing serious security and humanitarian challenges to nigeria and its neighbors and indeed regional stability as a whole (see buchanan-clarke and knoope 2017; ladbury et al. 2016). the threat of the group as a terrorist organization has therefore become more imminent. emblematic of the increasing awareness of the humanitarian threats of boko is the abduction of over 270 chibok school girls in yobe state in april 2014. while most scholarly works have conceptualized boko haram from the perspective of rejection of western values, thurston (2016) appeared to advance the argument that what is often interpreted as the group’s ideology is in reality a fusion of two ideologies, namely: religious exclusivism and victimhood. religious exclusivism would imply that boko haram is not only opposed to western values, but that it is also opposed to alternative worldviews in the muslim world or rival interpretations of islam. attacks on mosques by the group can only be understood within the context of this ideology of religious exclusivism. thurston (2016, p. 5) further points out that, through its ideology of victimhood, boko haram claims that its violence is a response to what it sees as decadeslong history of persecution against muslims in nigeria: they’re holding our brothers in prison. they’ve arrested them, tortured them, and subjected them to various forms of abuse. i’m not just talking about our religious leader—now, they’ve started to detain our women… since you are seizing our women, you wait and see what will happen to your women (shekau, cited in thurston 2016, p. 18). ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 205 although most of the group’s violent activities have been restricted to northeast of nigeria, neighboring countries around the northern fringes, particularly in the lake chad region, have also suffered from the devastating effects of the violent activities of boko haram. it is generally recognized today that boko haram poses a threat beyond the national geography of nigeria (ladbury et al. 2016; thurston 2016). it is therefore worth emphasizing that the boko haram insurgency comes at a very high humanitarian cost for nigeria and its neighbors. and it is clear that the efforts and significant achievements of the both the nigerian armed forces and multi-national joint task force (mntjf) in regaining territories from the group have not been enough to put an end to its activities. buchanan-clarke and knoope (2017, p. 8) notes that attacks by the group has continued unabated, including suicide bombings, widespread sexual and gender-based violence (sgbv), kidnappings and forced recruitment, in northeastern nigeria and the lake chad region. boko haram has disrupted social life in the northeast and left in its wake both internally and externally displaced. buchananclarke and knoope observe that an estimated 2 million people have been internally displaced in the northeast of nigeria since the beginning of the insurgency. amnesty international (ai 2017) notes that 80 percent of the estimated 2 million displaced people live in host communities, while the rest live in internally displaced persons (idp) camps. while the huge humanitarian cost and widespread human rights abuses associated with the activities of boko haram is well documented, scholarly attention to human rights violations resulting from coin operations in the northeast is still very scant. this is particularly true with efforts to understand how women in the northeast experience coin operations. this essay will not only fill these scholarly gaps, it will also hope to address the salient question of why coin operations lead to violations of human rights, albeit from a gender-sensitive angle. this gender dimension becomes pertinent as women are often the primary victim of human rights abuses in violent conflict situations. essentially, outbreak of violent conflicts exposes women to human rights violation (see buvinic et al. 2012; harders 2011; world bank 2011; schindler 2010; lorber 2008; anderlini 2006; plumper and neumayer 2006; rehn and sirleaf 2002; date-bah et al. 2001). evidence abounds to show that women are more often the most vulnerable victims of violent conflicts. for instance, women are particularly exposed to gender-based and sexual violence (gbv) (see bouta et al. 2005). ultimately, violent conflicts often come at a very high cost for women. it is based on this realization that this essay examines the coin-human rights nexus from the perspective of women in the northeast of nigeria. the paper however deviates from the traditional focus on rights violation by insurgents to interrogate rights violations by coin forces and the civilians who collaborate with them in the operations against the insurgent boko haram. 2. clarification of concepts human rights: internationally recognized rights that every human being enjoys as an inalienable entitlement without discrimination. they are international moral principles that protect people in every part of the world against abuses. addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 206 women rights: international moral principles for protecting women against violation, including their sexual and reproductive rights and their rights not to be subjected to discriminatory and degrading treatments in time of peace and violent conflict. coin operations: refers to all military and humanitarian efforts deployed by the nigerian state to address the boko haram insurgency in the northeast region of nigeria. in this regard, coin operations cover both military offensive against boko haram and defensive provision of security for internally displaced persons and camps by coin forces. this definition is consistent with the buhari plan (2016: 21), which identifies security agencies as key partners in the management of idp camps in the northeast. coin forces: made up of security and law enforcement agents of the state involved coin operations in the northeast and their civilian collaborators, often referred to as civilian joint task force (civilian jtf). according to the buhari plan (2016), their role also covers provision of security for idp camps and communities affected by the insurgency. survivors: persons and communities affected by the boko haram insurgency and resulting coin operations. national security: refers to a counterinsurgency and counter terrorism approach that emphasizes the survival of the state over the human rights of its citizens. policy: implies institutional frameworks and strategies of the state that are designed to counter security challenges in general and terrorism and insurgency in particular. policy makers: those responsible for the design and implementation of security and coin strategies for the state. 3. women and the human rights cost of counterinsurgency in northeast nigeria six states make up the northeast geopolitical zone of nigeria, and the states are namely: adamawa, bauchi, borno, gombe, taraba, and yobe (see undp 2017). the undp (2017) describes the northeast as an agrarian region with an estimated population of around 18 million spread across the aforementioned states. of the six states that make up the northeast, the states of borno, yobe and adamawa have suffered more from the violent insurgency of boko haram (see undp 2017; acaps 2017). essentially, the boko haram insurgency has induced serious humanitarian crisis in the northeast. to illuminate on the humanitarian situation in the region, the undp (2017, p. 4) reported that armed conflict: has resulted in over 20,000 deaths, the forced displacement of over 2 million people, and the widespread loss of livelihoods ad access to essential social services. at the present, the humanitarian situation is rapidly approaching famine levels and is characterized by extreme levels of food insecurity, ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 207 malnutrition and exposure to disease. fourteen million people across the six states are estimated to have been affected by the conflict, with 8.5 million people in need of humanitarian assistance. it reported further that in the three worst-affected states: 5.1 million people are currently in food insecurity ...........1.2 million children under 5 and pregnant and lactating women are malnourished and an estimated 6.9 million people are vulnerable to disease in the absence of access to health (undp 2017, p. 4). while the boko haram insurgency is generally recognized as the major source of armed conflicts and instability in the region, the role of the historic neglect and marginalization of the northeast, relative to other regions of nigeria, in aggravating the destructive impacts of the conflict has started receiving attention (see undp 2017). for instance, the undp noted that the region suffers from a structural fragility that severely circumscribed the resilience of both economic system and households to conflict-induced shocks (2017, pp. 4-6). in addition to the relative structural marginalization of the region, the harsh climatic condition that confronts the northeast makes the people vulnerable to poverty (see unhcr 2017). despite the well acknowledged role of structural and environmental factors, many have argued that the insurgent activities of boko haram further expose the region to extreme poverty and deprivation through the disruption of economic life and food production (see buchanan-clarke and knoope 2017). an ocha report, as cited in acaps (2017), puts the number of people in need of boko haram-induced humanitarian assistance in the northeast at an estimated 4.6 million people. amnesty international (april, 2015) provides a more gender-sensitive analysis of the humanitarian situation in the northeast by revealing that over 2000 women and girls have been abducted by boko haram since the start of 2014, and that many of the abducted women and girls have been sent into sexual slavery and trained to fight. to underscore the severity of the impacts of the insurgency on women, amnesty international (ai) notes that the chibok girls that were kidnapped by boko haram were only a small proportion of women and girls kidnapped by the insurgent group. amnesty reports further that most of the kidnapped women and girls were prepared for marriage to members of the insurgent group through indoctrination. this report is consistent with bouta et al. (2005, p. 33) who already posited that sexual exploitations of women in particular tend to increase in conflict situations. overall, the boko haram insurgency has come at a very high cost for the human rights of women in the northeast and both the insurgents and coin forces have been implicated (amnesty international april 2015; human right watch 31 oct. 2016). however, violation of rights by the insurgents is not much of a surprise as human rights violations by coin forces. while employing excessive force to create fears falls within the operational strategies of an insurgency, preventing rights violation ought to be the primary objective of coin operations (see burke-white 2004; van kempen 2013). coin operations are therefore not expected to lead to widespread violation of human rights as they have paradoxically resulted to in the northeast. addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 208 it is in light of this paradoxical relationship between expectation and outcome of coin operations in the northeast that this essay has focused on coin-related human rights violations in the region, albeit with specific attention to the experience of women. human rights watch (hrw) gives a clear insight into how coin operations have aggravated the human rights of women in the northeast in a 2016 report. according to hrw (31 oct. 2016), security officials raped and sexually exploited women and girls displaced by the boko haram insurgency. the report further indicted the government and relevant authorities for failure to protect displaced women and girls from such abuses either by facilitating access to basic rights or sanctioning culpable security officials. the report by human rights watch also documented how 43 women and girls in internally displaced persons (idp) camps in maiduguri, borno state, were subjected to sexual abuse, including rape and exploitation (hrw oct. 2016). according to hrw (oct. 2016), four of the aforementioned victims of sexual abuse narrated how they were drugged and raped by security agents and men of the civilian jtf in idp camps in (baga, bama, and gwoza) maiduguri, while 37 others were cases of sexual exploitation as they were reportedly coerced into sex by coin forces through false marriage promises and material and financial assistance. hrw reports that many of the sexually exploited that got pregnant were abandoned to endure discrimination and stigmatization from other camp residents. for most women in the northeast, their experiences have evolved from being survivors of boko haram to being victims of rights abuses by security officials. for instance, hrw (31 oct. 2016) reports how a july 2016 situational assessment of ipds in the northeast by noipolls (ngozi okonjo iweala polls) revealed that 66 percent of 400 displaced people in adamawa, borno, and yobe states affirmed that displaced women and girls were sexually abused by camp officials, and coin security personnel in particular. interestingly, sexual abuses against women displaced by boko haram were not restricted to the security officials of the state. vigilante groups, otherwise known as civilian jtf, working with the government forces were also actively involved in the act (see hrw oct. 2016; ai 2017). according to hrw most of the abused women and girls reported feelings of powerlessness and fear of retaliation stopped them from reporting cases of sexual abuse by security officials. at the dikwa idp camp in bono state, hrw captures the experience of women who have been sexually abused by coin forces that are charged with the security of idp camps and communities ravaged by the insurgency in the northeast thus: one day he (a policeman) demanded to have sex with me,” she said. “i refused but he forced me. it happened just that one time, but soon i realized i was pregnant. when i informed him about my condition, he threatened to shoot and kill me if i told anyone else. so i was too afraid to report him (hrw oct. 2016). beside reported cases of rape, most women displaced by the boko haram insurgency became victims of sexual exploitation. both rape and sexual exploitation fall under what most authors have classified as sexual and gender-based violence (sgbv) (see buvinic 2012; bouta et al. 2005). sex for basic sustenance became part of the coping strategies most women were forced to adopt. according to hrw (oct. 2016), coin forces charged with providing security in idp camps used their positions of authority and gifts ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 209 of desperately needed food or other items to have sex with women. these women were left with no choice but to succumb to such advances as they already lost every means of livelihood to the insurgency. more so, idp camps residents often narrated stories of food shortages. in one particular instance, hrw reported how a woman accepted the advances of a soldier who proposed marriage to her because she needed help in feeding her four children. hrw captures the experience of the sexually exploited woman thus: the soldier showed his interest by bringing me food and clothes. he used to wear the green army uniform and carried a gun. i accepted him because i needed help to take care of me and my four children. feeding in the camp is only once a day so you have to accept any help that comes. we started having sex in my camp tent – my sister who was sharing it with me left – or at night in the open field where soldiers stay in the camp. five months later when i realized i was pregnant and told him, he stopped coming. i have not seen him since then. i feel so ashamed because my neighbors talk and stare at me. i cry whenever i think about him. i delivered the baby two months ago but he is also suffering – i eat once a day so [am] not producing enough milk to breast feed him well. things are so bad in the camp, there is not enough water or food (hrw oct. 2016). for most of these women, their experience and role transformed from being housewives to being family breadwinners simply because most of them already lost spouses to the insurgency. this is consistent with the views of date-bah et al. (2001) that violent conflicts often result in an increase in the number of female-headed households. in noting that households headed by women had higher incidence of poverty and extreme poverty when compared with households headed by men, schindler (2010) has drawn attention to some of the challenges that potentially confront female-headed households. life, for most of the women in idp camps, was a choice between conceding to sexual advances from security men or risk starvation. as noted by amnesty international (may 2018), instead of receiving protection from the authorities, women and girls have been forced to succumb to rape in order to avoid starvation or hunger. according to a recent report by amnesty international: scores of women described how soldiers and civilian jtf members have used force and threats to rape women in satellite camps, including by taking advantage of hunger to coerce women to become their “girlfriends”, which involved being available for sex on an ongoing basis (ai may 2018). rape and sexual exploitation of women in idp camps were also reported at the bama hospital camp, where women were reportedly collected by civilian jtf members and taken to their quarters for sex (ai, march 2018). beyond exposing women to sexual exploitation and abuse, the boko haram insurgency also exposed them to sexually transmitted diseases and in the face of limited access to proper healthcare. this higher exposure to sexually transmitted diseases has been attributed to the relatively higher vulnerability of women to sexual and gender addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 210 based violence (sgbv) (see bouta et al. 2005). hrw (oct. 2016) notes how a medical health worker at the dikwa idp camp in maiduguri revealed a sharp increase in the number of people in need of treatment for hiv and other sexually transmitted diseases in that particular camp between when it was established in 2014 and 2016. specifically, hrw observes that cases in need of treatment increased from 200 to 500 people within the aforementioned period at the aforementioned camp. concerns have also been expressed that more women could be infected, with many of them too ashamed to go to the clinic (hrw oct. 2016). the experience of women in the hand of coin forces has further reinforced the view that coin operations often lead to violations of human rights. however, what still remain largely controversial, at least from the nigerian context, is the salient question of why coin operations lead to widespread human rights abuses. 4. explaining human rights violations in coin operations it is paradoxical that coin leads to human rights violations though it is meant to prevent rights violation. this essay argues that this paradox results from the assumption underlying most coin strategies and operations. essentially, the paper argues that most coin operations are framed by an assumption of a mythical irreconcilable tension between national security and human rights of individuals despite the usual proclamation by military authorities that rights promotion is at the heart of coin. the aforementioned assumption is a dangerous myth, as it encourages subjugation of human rights goals for national security imperatives. consequently, as emblematic in the coin operations in northeast nigeria, human rights promotion is treated as a means rather than as the core objective of all coin and security strategies. 4.1. literature review: the prevailing conceptual approach to coin-human rights nexus drawing on the experience of the united states, burke-white (2004) notes that human rights and national security are often viewed as mutually exclusive goals such that you can only promote human rights at the expense of national security. almqvist (2005) notes, in this context, that human rights and security are commonly known as contending values. in other words, existing conceptualizations casts the relationship between human rights and national security in terms of “a winner-takes-all” competition and irreconcilable tension. one is therefore compelled to choose between security and human rights (prezelj, 2015, p. 149). this way of understanding the relationship between human rights and national security creates an artificial and false dichotomy between the two goals that underpins the belief that human rights have no place in insurgency (see ibrahim, 2015). in effect, measures designed to counter terrorism, as well as insurgency, often challenge human rights, as some of these measures are usually laced in the belief that observance of human rights provisions aid terrorists but hinder states from fighting terrorism effectively (almqvist, 2005; warbrick, 2004). these measures are usually ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 211 premised on the assumption that fighting terrorism effectively necessitates radical human rights trade-off monnet and bigo (2018) appear to advance similar argument when they observed that the war against terror is often based on the claim of a political imperative to act quickly and effectively against terrorism. overall, prevailing conceptualizations among those who design coin measures converge around a conceptual approach that understands the link between coin and human rights in terms of irreconcilable tension (see monnet and bigo, 2018; carames and fernandez 2017; ibrahim, 2015; prezelj, 2015; almqvist, 2005; burke-white, 2004; warbrick, 2004). 4.2. theoretical implications of the prevailing conceptual approach as burke-white (2004) points out, where human rights and national security are viewed to be in competition, national security considerations usually trump promotion of human rights (2004, p. 253). the currently prevailing understanding of coin-human right nexus among policy-makers in terms of tension can therefore explain the widespread human rights violations that characterize most counter terrorism and coin operations (see prezelj 2015), including the counterinsurgency against boko haram in the northeast of nigeria (ibrahim, 2015). the national security imperative of countering terror quickly and effectively often come with a demand by military authorities to modify human rights guarantees to the individual (monnet and bigo 2018). this form of demand is for monnet and bigo a detrimental simplification of the legal procedures from the viewpoint of those suspected or accused of terrorism. studies have identified at least three important sources of tension between human rights and national security goals in the context of fighting terrorism (see monnet and bigo, 2018). first, tension can arise out of the political and strategic imperative to act quickly and effectively against terror, as this can stimulate demands for more powers to the state at the expense of human rights. second, fighting terrorism may result in the violation of privacy rights of individuals since it may demand relaxing limitations on surveillance of individuals suspected of terrorism (monnet and bigo 2018). for instance, following series of terrorist attacks across europe in 2015 as typified in the charlie hebdo killings in france on 7 january of that year, the french government, through declaration of a state of emergency on 14 november 2015, granted the state forces powers to search residences without warrant, in clear violation of the right to privacy. with the end of emergency rule on 1 november 2017, french authorities enacted new legislation widening the surveillance powers of the state in the fight against terrorism (see monnet and bigo, 2018). according to monnet and bigo (2018, p. 85) the new legislation has been criticized for granting excessive, vaguely defined and highly intrusive surveillance powers to law enforcement without adequate mechanisms of control and oversight. as monnet and bigo have shown, fighting terrorism catalyzed in france e not only the proposal of a system of interference with the right to respect for privacy but also a system of discrimination against migrants. addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 212 fighting terrorism can undermine the principle of presumption of innocence until found guilty by a competent law court. for instance, under the “us military order” that was issued by former us president bush in november 2001, non-us citizens can be detained indefinitely without trial as part of the us war on terrorism. similarly, part 4 of the “uk anti-terrorism, crime and security act” allows for indefinite administrative detention without trial in the name of fighting terrorism (monnet and bigo, 2018). also, the indian armed forces special power act that was enacted to curtail insurgency in the northern part of india reportedly gives the armed forces the power to arrest individuals suspected of terrorism without warrant (see almqvist, 2005). more concretely, the 2004 human rights annual report of the foreign and commonwealth office of the uk noted and condemned human rights violations by us forces in the abu ghraib prison in iraq, as well as the detention without trial of several individuals in the us guantanamo bay detention facilities in cuba (see almqvist, 2005). 5. nigerian coin frameworks and subordination of human rights in coin operations beside the 1999 constitution of the federal republic of nigeria, relevant institutional frameworks for coin operations in the northeast and nigeria as a whole include: the terrorism prevention amendment act (2013); the national action plan for preventing and countering violent extremism (pcve, 2017); and the national security strategy (nss, 2019). while section 1a (1) of the terrorism prevention amendment act (2013) empowers the office of the national security adviser to coordinate all security and enforcement agencies in fighting terrorism in nigeria, section 1(2) of the amended act charges the attorney general of the federation with the implementation and administration of the act in line with extant international laws and best practices. similarly, section 1(3-6) of the act specifies that the primary role of security and law enforcement agencies in the fight against terrorism is to enforce counter-terrorism legislations through the adoption of measures. the act grants law enforcement agencies arbitrary powers that clearly suggest subordination of human rights to the national security imperatives of defeating insurgency. according to section 25, sub-section 1(e) of the act, law enforcement agents can arrest, search and detain any person whom the officer reasonably suspects to have committed or likely to commit an offence under this act. how to determine a reasonable suspicion is unclear and highly problematic, especially as the interpretation of what constitutes a reasonable suspicion may be arbitrary. crucially, the act did not specify what may constitute a reasonable ground for suspicion; this interpretation is left to the arbitrary interpretation of law enforcement agents. in the northeast, many have been subjected to detention without trial as well as extrajudicial killings as a result of the arbitrary powers conferred on law enforcement by the terrorism prevention amended act (2013). for instance, many, including 68 boys, were reportedly arrested and detained for several months at the maiduguri maximum prison and giwa barracks without charges brought against them, based on suspicion of link to terrorism (reliefweb, 29 april 2019). this arbitrary arrest was carried out as a reprisal by coin forces on 14 march 2014, following boko haram attack on the military detention facility in giwa barracks in maiduguri (ai, march 2018). ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 213 the military reportedly killed at least 640 men and boys in this reprisal operation (ai, march 2018). within the framework of current conceptualization, the relationship between human rights and national security in the context of coin in the northeast if nigeria is also cast in terms of means-end analysis, where human rights promotion is merely seen as a means to the end of coin operations. the pcve (2017) is indicative of this form of means-end analysis. although the pcve makes human rights promotion a priority component in nigeria’s counterinsurgency, it is also clear that promotion of human rights is conceived in the pcve (2017) as a means for the purpose of countering violent extremism rather than as the goal of coin. whereas the term human rights appeared on 15 separate occasions in the pcve document, it was only referred to on a single occasion as the core objective of the pcve (pcve 2017, p. 12). in comparison, it was referenced as a guiding principle (a means) for achieving the goal of coin in nigeria on 12 occasions, and thereby suggesting an instrumental construction of human rights promotion. to underline this instrumental construction of human rights promotion in the prevailing coin thinking in nigeria, the pcve (2017, p. 27) states that these actions (human rights promotion and the other priority components of the pcve) will result in preventing grievances, which is one of the pathways leading to violent extremism. essentially, the pcve only promised to prioritize human rights in countering violent extremism (see pcve 2017, p. 28). it did not promise to make human rights promotion the core goal of countering violent extremism. the policy implication of constructing human rights promotion as a means rather than the end in national security thinking in the context of coin is that human rights promotion can be jettisoned for other means whenever the state thinks doing so would make fighting insurgency more effective. this has been the case in the northeast of nigeria, where allegations of human rights abuses by coin forces are often labelled a distraction to the national security goal of keeping the country together by the military. in effect, table 1 shows a comparative analysis of key concepts in the national security strategy 2019, using a word count to understand the weight given to respect for human rights and the rights of women in particular in the national security thinking of the nigerian state relative to national security. this approach is consistent with the word frequency approach that is adopted in content analysis in political science (see laver, benoit, and gary, 2003). the word count reveals that the term “rights”, in the context of human rights, only appeared on 12 occasions in the 80-page document. the word count further shows table 1: word count of key concepts in the national security strategy of nigeria (nss, 2019) concepts frequency in the nss human rights 12 women (women rights) 19 (18) security 83 source: author’s analysis of nss (2019) addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 214 that direct reference was made to women on 19 occasions, with only 18 of the references addressing the human rights of women. although the national security strategy that was enshrined in 2019 promises to address the security needs of women in nigeria by outlining a number of steps to facilitate the actualization of this goal under the caption of gender sensitivity and security (see chapter 6 of the nss 2019, p. 47-8), it fails to identify these security needs and the specific sources of threats to the security of women, particularly in situations of outbreak of violent conflicts. this omission implies nigeria misses the opportunity to address women rights violations by coin forces. and this is despite the national security document acknowledging that women along with children constitute the largest population of internally displaced in terrorism affected areas in nigeria (see nss 2019, p. 48). overall, the nss fails to adequately identify human rights violation as a national security concern. it therefore appears that the nss (2019) only pays a superficial attention to human rights and the rights of women in particular. the superficiality of the attention given to human rights and the rights of women becomes glaring when compared with the repeated emphasis on national security in the 2019 nss document revealed by the word count (see table 1). specifically, table [1] reveals that the term national security appeared on 83 different occasions in comparison to an aggregate of 30 references to human and women rights. the frequent reference to national security relative to the two concepts of human rights and women rights can be viewed as a subordination of the latter to the former in a meansend relationship as indicated in the pcve (2017). this form of relegation of human and women rights to national security imperatives can further encourage the violation of the rights of women, by both insurgents and coin forces, in areas affected by the insurgency in the northeast of the country. although there are several official declarations by the nigerian military authorities to the effect that human rights is not a distraction but a sine qua non in the conduct of counterinsurgency operations (see olonisakin 2015), the attitude of the military to human rights in actual practice shows very low, if any, regard for human rights. for instance, the chief of army staff, general buratai, believes that allegations of human rights abuses against officers and men of the nigerian army are capable of demoralizing army personnel in the performance of their duties (premium times, 8 march 2017). as a further demonstration of subordination of human rights to national security imperatives, general buratai urged judges to consider the aspect of national interest when handling cases of human rights abuses by members of the armed forces involved in coin operations (see the voice of nigeria, 22 nov 2018). according to buratai, human rights cases instituted against the nigerian army are meant to distract the army from carrying out its constitutional role of defending the territorial integrity of nigeria (the voice of nigeria, 22 nov 2018). similarly, human rights abuses associated with countering terrorism in nigeria are sometimes described as military affair by the state. this is the type of explanation given by a presidential spokesperson to the deadly attacks by the men of the nigerian army that resulted to the death of several members of the islamic movement of nigeria (mni) in zaria, kaduna state, in december 2015 (see hrw, 22 december 2015). statements and dispositions like those credited to the chief of army staff can compromise objective investigation of allegations of rights abuses by coin forces. ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 215 crucially, the military fails to maintain an open mind towards allegation of rights violations by its forces involved in the fight against insurgency. consequently, rather than set in motion a transparent process of investigating and prosecuting allegations of rights violations by its forces, the nigerian military authorities often follow a denial pathway. for example, nossiter (3 june 2015) notes that official response to allegations of human rights violations by the military and other security agencies takes the form of consistent denial and downplaying of allegations as exaggerated. the nigerian military often question the veracity of certain claims of human rights violations by coin forces during counterinsurgency operations. for instance, the military maintains that, contrary to allegations of unlawful detention of suspects, the counterinsurgency in the northeast has resulted in the trial, conviction as well as release of several boko haram suspects (defense headquarters –dhq– 23 feb. 2018). in some instances, dhq has argued that some of the reported cases of rights violations and figures of casualty were either unconfirmed or unsubstantiated. in other instances, the military has countered that some allegations of rights abuses are not consistent with provisions of the nigerian constitution. for example, dhq argues that allegations of violations of the rights of lesbians, gays, bi-sexual and transgender (lgbt) are inconsistent with the nigerian constitution on those issues. in this context, allegations of rights violations are denied as efforts to frustrate the fight against insurgency (see hansen 2020). for example, chris olukolade, a former military spokesperson, followed this denial pathway by reportedly stating that allegations of human rights violations are unfortunate efforts aimed at undermining the army’s resolve to defeat boko haram (clottey 2015). similarly, an army officer interviewed by hansen (2020) denied allegations of rights abuses against coin forces as false and aimed at destroying the reputation of the army in the fight against insurgency in the northeast. despite this culture of denial by the military, hansen (2020) notes that the evidence of rights violations by coin forces is overwhelming. this attitude of denial rather than constructive engagement of allegations of rights abuses can explain the widely reported characteristic failure of military authorities to investigate and prosecute allegations of human rights abuses by coin forces. where investigations are conducted, the process is usually not transparent and reports are rarely made public. for instance, the us department of state (2019) cites the 2017 presidential investigative panel that was set up to investigate allegations of human rights abuses against the military. crucially, it was found that though the panel submitted its findings early 2018, no parts of the report was made public and no one was held accountable for the rights violations that prompted the panel investigation (us department of state 2019). the failure of the military authority to prosecute and hold somebody accountable for the well documented human rights abuses by coin forces in the northeast further clearly demonstrates the subordination of human rights to the national security goal of rooting the insurgents notwithstanding the cost to human rights. overall, the nonprosecution of human rights offenders among coin forces can be explained by a dilemma that confronts the nigerian military authority: choosing between protecting its personnel involved in coin operations and the human rights of civilians caught in the middle of the insurgency and counter-insurgency in the northeast. olonisakin (2015), a chief of staff addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 216 of the nigerian armed forces, already draws attention to this dilemma by noting that the coin operations in the northeast of nigeria have three objectives that are difficult to achieve simultaneously. the three objectives include protection of coin forces; observing respect for human rights under the principle of distinction; and elimination of insurgents. olonisakin’s testimony therefore reveals an irreconcilable conflict between protecting coin forces and eliminating the insurgents on the one hand and protecting the human rights of individuals during coin operations on the other hand. the conflict is irreconcilable because olonisakin suggests that simultaneous pursuit of these three objectives usually entails a trade-off. and it is clear from observed human rights outcomes of coin operations in the northeast that the national security goals of protecting coin forces and eliminating the insurgents trump advancing the more sustainable goal and pathway to peace of respecting and protecting human rights of civilians caught in the middle of the insurgency in the northeast. olonisakin (2015, p. 3) echoes this sentiment of subordinating human rights to national security in noting that observing human rights norms in coin operations is always a challenge for conventional forces pushed into overreacting by insurgent groups. ultimately, human rights are viewed as obstacles to national security in the context of coin operations in the northeast of nigeria. expectedly, coin forces have been further encouraged and embolden to continue with rather than abandon the pattern of rights violations. 6. recommendation this essay has demonstrated that it is not unusual for policymakers to construct the relationship between human rights and national security concerns in terms of an inherent tension and mutual antagonism. constructions of this type have been shown to explain the subordination of human rights goals in most counterinsurgency operations. however, burke-white (2004, p. 249) argues that the subordination of human rights to national security is both unnecessary and strategically questionable. for burke-white, human rights and national security must be viewed as correlated and complementary. almqvist (2005) therefore advances the argument that though tension may sometimes arise between the two values, this tension can be reconciled such that human rights come to occupy a central place in the security thinking of states. it is in this regard instructive to note that within the framework of un global counterinsurgency strategy, human rights protection and effective counterinsurgency must be viewed as complementary goals that must be pursued together (un 2008 p. 19). while international humanitarian law recognizes the need to counter insurgency, it also requires states to undertake this critical task in ways that promote and protect human rights and fundamental freedom (un 2013; un general assembly res. 60/288 of 8/9/2006). it is in this regard that counterinsurgency operations must operate within the framework of international human rights and humanitarian law (see odomovo 2014). although article 4(1) of international covenant on civil political rights (iccpr) allows states to derogate from observing human rights under condition of officially proclaimed public emergency that pose a threat to the life of the nation as long as doing this is not inconsistent with other obligations of the state under international law, section 2 of the ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 217 same article 1 of iccpr nevertheless stipulates that certain rights cannot be derogated. the implication of this latter provision of the iccpr for coin operations in the northeast of nigeria is that there can be no justification for violating certain human rights of women. iccpr lists the fundamental human rights that permit no derogation to include right to life (art. 6); prohibition from being subjected to torture and inhumane treatment (art. 7); right not to be subjected to slavery of any form (art. 8); and right to liberty and security of person. the well-documented abuses coin forces subject women in the northeast to are therefore serious infractions and crimes under both international human rights law and international humanitarian law. accordingly, article 18 of the african charter on human and people's rights (1986) prohibits all forms of discrimination against women, and it also guarantees the protection of the rights of women under relevant international declarations and conventions. while stipulating the rights of women to human dignity, article 3(3 & 4) mandate states to prohibit any exploitation and degradation of women as well as to take appropriate measures to protect women from all forms of violence and particularly sexual and verbal violence, such as women have been reportedly subjected to by coin forces and their civilian collaborators in communities affected by insurgency and idp camps hosting insurgency displaced people in the northeast of nigeria. subjecting women to rape and sexual assault is a serious violation of their rights to exercise control over their fertility, maternity and other sexual and reproductive rights guaranteed under article 14 of the maputo protocol of 2003. specifically, article 11(3) stipulates that states have a responsibility to bring perpetrators of such acts (sexual violence and exploitation against women under situations of violent conflict) to justice before a competent court. similarly, the national idps policy (2012) serves as a policy framework for protecting idps, particularly displaced women, in nigeria against human rights violations. it not only pays special attention to the protection of displaced women, it also provides a framework for seeking redress and holding both state and non-state perpetrators accountable for the violation of the human rights of displaced women. and it is to this end guided by a set of gender-sensitive general and humanitarian principles. accordingly, section 3.1.5 of the national idps policy (2012) provides a more women-specific protection for idps in nigeria by prohibiting subjecting women in idp camps to all forms of indignity, including sexual abuse and forced marriage. the national idps policy (2012) of nigeria therefore imposes upon the nigerian state and governments at all levels responsibilities to: respect; protect; and fulfill the rights of displaced women in the northeast to security of their human rights (see national idps policy 2012). governments and other stakeholders must in this sense not only refrain from taking actions that may jeopardize the human rights of women, but they must also take deliberate actions to prevent violation by a third-party , and they must in addition create the enabling environments for idps to fully enjoy their rights without discrimination. the failure by the nigerian military to therefore bring to justice men of the nigerian armed forces that have been accused of sexual violence and exploitation against women in the northeast must be viewed as a major indictment for the nigerian state. counterinsurgency is in this context no excuse for the gross violation of human rights, especially of women, that has been noted to be the hallmark of the fight against addressing the paradox: counterinsurgency, human rights and women in northeast nigeria the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 218 boko haram in the northeast of nigeria. as ibrahim (2015) puts it, there is nothing to be gained from trading boko haram's evil for military atrocities against civilians. to therefore underline the human rights protection imperatives of counterinsurgency operations, the un (2011) goes beyond viewing the protection of human rights of victims of terrorism as a legal responsibility of the state to stipulating that states must not hide under the pretext of fighting terrorism or insurgency to violate human rights of people; especially of the supposed beneficiaries of such fight. emphasizing also that states cannot bypass their obligations to ensure respect for human rights on the claims of national security, monnet and bigo (2018, p. 18) argue that human rights are not a luxury which can be disregarded depending on the type of threat a state encounters. in effect, office of high commissioner for human rights (ohchr 2008) posits that respect for human rights and the rule of law must be the bedrock of the global fight against terrorism. accordingly, like several others, warbrick (2004, p. 989) argues that the insistence on the applications and observance of human rights, even where modifications are necessitated under conditions of public emergence, must be an essential feature of any response to terrorism. coin strategies and operations must in this regard not deviate from international human rights standards. this is because as van kempen (2013) has argued: given that human rights protection constitutes security, any restriction on enjoyment of human rights would amount to a loss of security. ultimately, human rights protection must be treated as the core goal of all coin operations. the following are therefore proposed for addressing the widespread violations of human rights and women rights in the northeast: • all cases of rights violation against women by coin forces in idp camps and communities affected by the insurgency in the northeast must be reopened for fresh and independent investigation and prosecution where necessary. • the principle of transparency must be enshrined into the trial of cases of rights abuses in the coin operations through the involvement of civil society actors. • to give credibility to the trial process, cases of rights violations by coin forces should be tried in civil courts of appropriate jurisdiction. • investment in citizenship education for women in idp camps must be prioritized to increase their awareness about their fundamental human rights and where to get help in case of rights violation. 7. conclusion experience from the counterinsurgency against boko haram in northeast nigeria has shown that measures taken to tackle insurgencies can create serious human rights problems of their own, and that failure to acknowledge and constructively engage this possibility as part of the reality of counterinsurgency operations can further exacerbate rather than discourage human rights violations by coin forces. crucially, the paper showed that underlying most coin strategies and operations is the assumption that there is an irreconcilable tension between human rights and national security goals. this ibukun david the age of human rights journal, 15 (december 2020) pp. 203-223 issn: 2340-9592 doi: 10.17561/tahrj.v15.5829 219 assumption, the paper revealed, largely explains the subordination of human rights to national security imperatives as well as the consequent widespread violation of human rights during coin operations. and given the gendered nature of armed conflicts, the experience from the northeast of nigeria, as demonstrated in this essay, shows that women are especially vulnerable to rights violations by coin forces. in this context, several documented cases of allegations of violation of the human rights of women in the boko haram-ravaged northeast of nigeria by coin forces and their civilian collaborators (cjtf) were revealed. unfortunately, rather than constructively engage the several allegations, military authorities have either denied or downplayed such claims. in some extreme cases, allegations of human rights violations by coin forces have been denounced by the military as deliberate designs to frustrate the coin goal of defeating boko haram. the study concludes that changing the prevailing narrative of incompatibility between human rights and national security that frame existing coin strategies will be central to addressing the widespread human rights violations that have become characteristic of the ongoing coin in the northeast of nigeria and elsewhere. in effect, a human right based approach that is sensitive to gender differences must inform all coin strategies and operations. ultimately, beyond viewing human rights and national security as complementary rather than competing in the context of coin, human rights protection must be seen as the core goal of all coin operations. references acaps, (2017) “northeast nigeria conflict: secondary data review”, viewed 10 april 2019, from: http://www.acaps.org>files>files african charter of human and peoples’ rights (1986) almqvist, j, (2005) rethinking security and human rights in the struggle against terrorism, paper presented 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report warbrick, c, (2004) ‘the european response to terrorism in an age of human rights’, the european journal of international law, vol. 15, no. 5, pp. 989–1018 world bank, (2011) world development report 2011: conflict, security and development, the world bank, washington dc received: june 18th 2020 accepted: august 14th 2020 articles ibukun david addressing the paradox: counterinsurgency, human rights and women in northeast nigeria 1. introduction 2. clarification of concepts 3. women and the human rights cost of counterinsurgency in northeast nigeria 4. explaining human rights violations in coin operations 4.1. literature review: the prevailing conceptual approach to coin-human rights nexus 4.2. theoretical implications of the prevailing conceptual approach 5. nigerian coin frameworks and subordination of human rights in coin operations 6. recommendation 7. conclusion references the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 119 the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis jaime prieto1 juan l. paramio-salcines2 abstract: little attention has been focused on the analysis of the interrelation between disability and elite disability sport from the human rights perspective as the united nations convention on the rights of persons with disabilities (uncrpd) demands of those countries that ratified this global regulation. more than a decade since its promulgation in december 2006, the united nations itself and a plethora of authors recognises that disability in general and disability sport by extension has not yet been seen as a human rights issue in many countries, principally in developing countries. this paper is divided into four main parts. first, academic literature in relation to disability, human rights policy and sport at elite level is explored. second, it examines the active role of the international paralympic committee, regarded as a major advocate for the rights of the sport promotion of athletes with disabilities, to implement the convention by the organisation of sports events for paralympic athletes worldwide at all levels of the sport development continuum. third, it explains the methods and data collection followed in the study and the following section presents results of the analysis. finally, it draws an international scenario that might be valuable in informing academics, institutions and professionals to promote elite disability sport from the human rights perspective. keywords: united nations’ convention on the rights of persons with disabilities; human rights; people with disabilities; disability sport; elite disability sport; international paralympic committee. introduction it is commonly assumed that leisure and sport participation are fundamental parts in the daily lives of all people living in any country, including those people with disabilities (pwd)3. regarded as the world´s largest minority group by the world health organization/world bank in the first world report on disability (who and wb 2011), pwd represent over one billion people (about 15% of the world´s population) having 1 faculty of education, department of languages, arts and physical education, universidad complutense de madrid, spain (jaimeprietobermejo@gmail.com). 2 faculty of teacher training and education. departament of physical education, sports and human movement, universidad autónoma de madrid, spain (juanluis.paramio@uam.es). 3 although how to use the term to define disabled people or people with disabilities has become the subject of intellectual and ideological controversy in the disability studies literature as part of the ongoing debate about societal-level perspectives for thinking about and researching into disability (the medical and social models). as part of this debate, there are some authors advocating the use of the term disabled (see thomas and smith 2009; aitchison 2009; darcy and taylor 2009 for a broader discussion), while others advocating the use of the term people with disabilities, in this article, the authors will use people with disabilities (pwd) as the unifying terminology widely accepted by the predominant social model of disability. the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 120 some form of disability (who 2013). this figure represents an emerging challenge for policy makers, academics, managers and other stakeholders involved in disability sport around the world as the percentage of this growing global segment of population will continue to increase in the coming five decades (eurostat 2015; who and wb 2011). since the first half of the twenty century, the widespread consideration of access to leisure and sport for pwd from the human rights perspective in a plethora of countries (see donnelly 2008; roy 2007; misener and darcy 2014; paramio-salcines, prieto and llopis-goig 2018; veal 2015) has led to the promulgation of a substantial body of international declarations and legislations. looking back in retrospect, the united nations declaration of human rights (1948) along with other documents have been influential on promoting human rights for many groups, though the rights of pwd, as darcy and taylor (2009) remark, were not specifically mentioned in this declaration. thereafter, the united nations declaration on the rights of disabled persons (1975) and especially the international year of disabled persons (iyd) are valued as the genesis of the promotion of human rights for pwd. in the meantime, the ‘sport for all’ movement, promoted officially by the european council in 1966, has also contributed to promoting policies and programmes to facilitate equality of access and encourage participation not only for mass participation but also competitive sport for this ‘priority group’ in many countries over the last decades. however, the united nations convention on the rights of persons with disabilities (hereafter uncrpd), passed in december 2006, represents the first legally binding instrument that urges governments throughout the world to take proactive and responsive policies, including legislation, to ensure specifically the right of pwd “to participate on an equal basis with others in recreational, leisure and sporting activities” (article 30.5.c) (united nations 2006; see also darcy and taylor 2009; misener and darcy 2014). in this paper, human rights are defined, following keywood (2000: 131), as “rights to which people are entitled by virtue of being human…and are universal, fundamental and absolute. […] they are universal as they belong to all human everywhere, regardless of nationality, ethnic or racial origin, social background, impairments and so on. they are fundamental as human rights can be denied or violated but a human being´s entitlement to them cannot be removed”. as part of the general obligations of those signatory countries of the uncrpd, with 172 countries4 in october 2017 (united nations, 2016; european disability forum, 2017), governments are responsible for delivering elite disability sport5 (depauw and gavron 2005; misener and darcy 2014; thomas and smith 2009), as part of the sport development continuum alongside the ‘sport for all’ movement (hylton, bramham, jackson and nesti 2001). similarly, organisations such as the world health organization (who 2013; who and wb 2011), the world leisure organization (sotiriadou and wicker 2014), the european commission (european 4 as of october 2017, it has 160 signatories and 175 parties, which includes 172 countries and the european union (eu) (which ratified it on 23 december 2010 to the extent responsibilities of the countries were transferred to the european union). at the time of writing, 27 of the 28 member states of the eu have ratified, in particular spain ratified the uncrpd on december 2007, being ireland the only eu member state that has not yet ratified (european disability forum 2017). 5 following thomas and smith (2009: 3), the term disability sport will be used ‘to describe those sports activities that have developed for the specific involvement of disabled people and which provide opportunities for disabled people to compete with or against other disabled people’ from grassroots to elite levels as we argue in this article. jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 121 disability forum 2017) or the international paralympic committee (ipc) (ipc 2015) clearly coincide with the uncrpd and other declarations to approach disability sport from the human rights perspective. the uncrpd adopts a broad categorisation of disability that initially “includes those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others” (united nations 2006; article 1: purpose). misener and darcy (2014) argued that this categorisation does not cover the whole picture of disability. based on the criteria followed by ontario human rights commission to define disability, both authors underline the need to “expand upon these basic four impairment types to include, for example, learning, hearing or vision disabilities, epilepsy, drug and alcohol dependencies, environmental sensitivities, as well as others” (p. 2). since the 1990s a large number of western countries such as the us (hums, schmidt, novak and wolff 2016), australia (darcy and taylor 2009; darcy, taylor and green 2016; sotiriadou and wicker 2014) and european countries such as the uk (ehrc 2017), germany and spain (paramio-salcines, kitchin and downs 2018) have passed, building on the uncrpd, extensive policies and legislative developments of disability rights, anti-discrimination and accessibility to sport and active leisure. it is more than a decade since the uncrpd was passed, and the key question remains as to how effective this global treaty has been in guaranteeing the rights of this growing segment of population in relation to sport participation. when evaluating the impact of this global treaty for the lives and rights of pwd, the reality is far from ideal, as the united nations itself (united nations 2016) and more recently other organisations such as the equality and human rights commission at the uk (ehrc 2017) along with different authors (darcy and taylor 2009; darcy et al. 2016; donnelly 2008; roy 2007; singleton and darcy 2013; thomas and smith 2009; veal 2015) coincide in noting that disability in general and disability sport by extension has not yet been seen as a human rights issue not only in western countries, but principally in developing countries, which is specifically examined in this article. veal (2015: 250) argues that despite the fact that “the idea of human rights permeates many aspects of national and international life, it has not permeated the field of leisure studies to any great extent’. concern that extends to the sport field as donnelly (2008: 381) notes, saying that “despite the human rights achievements in sport…human rights are also continually and routinely violated in ways that are directly or indirectly related to sport” (see also misener and darcy 2014). to compare evidence as a whole before and after the establishment of the uncrpd, it is therefore instructive to take account of the united nations secretary-general ban kimoon´s statement in december 2016, which clearly stated that “in the past decade, we have seen much progress. but, persons with disabilities continue to face grave disadvantages” (united nations 2016). to address this situation, ban ki-moon urged “the international community to end discrimination, remove barriers and ensure equal participation for all persons with disabilities, who are still commonly denied fundamental rights, and are more likely to live in poverty” (united nations 2016), where the inclusion and participation of pwd in sport environments at all levels are fundamental rights and not an exception. the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 122 despite the launching and implementation of a wide range of positive international and national policies and legislations, there is even today evidence that pwd around the world are at a disadvantage compared to non-disabled people in critical areas such as employment and unemployment, annual income, health, and in our case, sporting participation, from the lowest to the highest level of achievement, in countries like the united states (erickson, lee and von scharader 2014), the uk (sport england 2016, 2017; ehrc 2017), australia (australian sport commission 2010; 2016) or spain (spanish paralympic committee 2016). despite the fact that disability sport has developed rapidly in the last decades and pwd now take part in sport at all levels in many countries (thomas and smith 2009), differences between pwd and those without disabilities are even today quite significant (e.g. paramio-salcines, prieto and llopisgoig, 2018). most of the above data comes predominantly from western countries, while there are fewer studies in many other parts of the world, principally from developing countries. unlike western countries, many developing countries, as shukshin (2005) claims, have not enacted comprehensive disability and accessibility legislation to promote the rights of pwd to equally of access to leisure and sport environments. as part of the fundamental human rights agenda for our population group, governments have been also asked to take positive initiatives to promote elite disability sport as we argue in this article (de jong, vanreusel and van driel 2010; depauw and gavron 2005; misener and darcy 2014; thomas and smith 2009). to date, the analysis of the interrelation between disability and elite disability sport as well as the emergence and development of elite disability sport has only recently attracted the attention of leisure and sport management academics (e.g. brittain 2016a; brittain and wolff 2015; de jong et al. 2010; depauw and gavron 2005; misener and darcy 2014; nicholson and stewart 2013; pitts and shapiro 2017; shapiro and pitts 2014; thomas and smith 2009; veal 2015). to analyse this phenomenon, national policy developments in the field of competitive and disabled-specific federated sports is a major area to be considered. to fulfil this aim, governments are urged to provide appropriate instruction, training and more resources for the organisation, development and participation of pwd in disability sport in general and elite disability sport in particular. under those circumstances, national sports federations are playing a key role in assisting governments in the undertaking of the competences concerning to a particular sport with leisure, social and training purposes. with regard to elite disability sport, there is a complex network of global organisations such as the international paralympic committee (ipc) working in conjunction with national sports federations where there is a disability-specific section within the able-bodied federation structure itself, whilst other federations or entities are configured independently to the non-disabled sport. in addition to national sports federations, there exist other governmental and non-governmental entities that deal with issues related to the participation in sporting activities by pwd. the role of the aforementioned disabled-specific organisations is to encourage this group of population to participate at all levels of mainstream disability sport and elite sport competitions, including the summer and winter olympic games and international competitions for athletes with specific impairments (e.g. motor, visual, hearing or intellectual) (e.g. depauw and gavron 2005; thomas and smith 2009). such has been the growing internalisation and competitiveness of disability sport at elite level that, for instance, the jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 123 latest paralympic games held from 7 to 18 september 2016 in rio was regarded as the largest paralympic games ever and the best games in terms of athletic performance with 4,328 athletes (2,657 males and 1,671 females) participating in 22 sports, two more than in london 2012 (see https://www.paralympic.org/rio-2016). within this context, with the aim of analysing the international global picture of disability sport from a human rights perspective, it was hypothesised that the presence of the signatory countries of the uncrpd in the different disabled-specific international federations and/or organisations for the various disabled sports would reflect, at least in the institutional-organisational level, their first commitment to manage, promote and develop the fundamental rights of pwd to participate in sport on an equal basis with others, in particular providing competition opportunities for their athletes in different sports and disability groups at the international level. this paper is divided into four main parts. the first section begins with a review of how academic literature has covered the development of the body of knowledge in relation to disability, human rights policy and elite disability sport. the following section examines the active role and responsibilities of the international paralympic committee (ipc) to implement the uncrpd by organising sports events for paralympic athletes worldwide at all levels. the subsequent section explains the methods and data collection followed in the study and the section after presents results of the analysis. finally, the paper draws an international scenario that might be valuable in informing academics, institutions and professionals to promote closer integration between disability sport at elite level from the human rights perspective. this article examines in much detail the potential differences in terms of geographical location and impairment-specific sports and states some limitations of the study. understanding disability, elite disability sport and human rights policy as a logical point of departure, it is important to highlight disability and elite disability sport from the human rights perspective. to the former, the world health organization states that “disability is not only a public health issue, but also a human rights and development issue” (who 2013; who and wb 2011). as already mentioned, the uncrpd clearly sets the tone about the rights of pwd at international level and incorporates disability and disability sport as a human rights issue. as part of the general obligations of those countries that ratified the uncrpd, central governments must adopt legislation and other appropriate policies to provide people with different disabilities all the opportunities to enjoy sport at all levels, including elite disability sport (ipc 2015). to start with, it is relevant to acknowledge the work of shapiro and pitts (2014) who after examining disability sport in sport management literature between 2002 to 2012 remark that research on disability sport, leisure and recreation is still an under research area in sport management. to further this argument, both authors state that out of 5,443 articles examined, only 89, less than 1 per cent were disability sport articles (see also pitts and shapiro 2017). in this regard, the world leisure journal was (and still is) one of the the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 124 journals that has published more articles in this subject (veal 2015). to date, most of the extant research on sport and leisure disability has focused upon the level of sport participation and the range of activities involving pwd (patterson and pegg 2009; pitts and shapiro 2017; shapiro and pitts 2014; thomas and smith 2009), and more recently on the analysis of another growing demographic group as old pwd (sotiriadou and wicker 2014). shapiro and pitts (2014: 663) found that ‘nearly half (48%) of all papers addressing disability sport focused on “participant sport”, followed by paralympics (15.7%)’. in addition, much of studies are mainly descriptive in nature and focused on highlighting the lower level of sport participation patterns of our population group compared to non-pwd and the main barriers that constrain the sporting participation of our target group. as mentioned previously, recent studies confirm that the levels and types of sport participation by pwd in different western countries such as the us (erickson et al. 2014), the uk (brittain 2016a; sport england 2016, 2017), australia (australian sport commission 2010, 2016) or spain (spanish paralympic committee 2016) have steadily increased but still lags significantly behind able-bodied participation. in england, for instance, the latest study undertaken by sport england estimates that there are still significant differences between those with and without disabilities, with ‘only 36 per cent of those with three or more impairments are active compared with 65 per cent of those without a disability’ (sport england 2017: 12). in spain, although there is no official data on the level of sports participation of pwd (mecd 2016), the spanish advocacy group cermi (the comite español de representantes de personas con discapacidad) (spanish committee of representatives of people with disabilities) argues that ‘nearly one million people with disabilities (out of an overall figure of 3.8 million people with disabilities in the country) take part in sport, around 25 per cent of the overall number of people with disabilities’ (spanish paralympic committee 2016: 3; see also paramio-salcines, prieto and llopis-goig 2018). as the uncrpd recognises and different sport policies in many western countries, increasing sport participation rates of pwd has been one of the key strategic objectives of any sport policy from macro level to micro level. similarly, past studies in the area of disability sport have also focused on analysing the number of interrelated (potential) political, physical, social and cultural barriers that might explain the lower levels of sport participation of pwd in western countries (e.g. societal attitudes towards disability, effective policy-making for the implementation of universal accessibility to sports venues and events, inaccessible venues and services, disability sport provision at all levels or lack of disability-specific knowledge) (hylton and totten 2001, misener and darcy 2014; radke and doll-tepper 2011; thomas and smith 2009). misener and darcy (2014: 3) argue that “much of the lower levels of participation are attributed to discriminatory management practices rather than a lack of desire to participate”. hylton and totten (2001) goes further to suggest that discrimination against disability in sport can be observed at three levels: a) individual (micro); b) at institutional (meso); and c) societal level (macro). this structure serves to focus our analysis on the meso (understood by central and local governments and sport governing bodies) and societal level. according to shapiro and pitts (2014) and pitts and shapiro (2017), the second area of interest, though limited, was the study of the paralympics and paralympic athletes; jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 125 however, the analysis of the interrelation between disability and elite disability sport from a human rights perspective is still an under research area both for the leisure and sport management studies as previously stated. as misener and darcy (2014) argue, relatively little studies in disability sport have explored the implementation of policies for elite disability sport athletes from a human right perspective. moreover, implementing effective policies to ensure that pwd have the same sporting opportunities still remains a managerial challenge in both western countries and mainly in developing countries. especially when considering that one of the reasons that might explain the resistance from upper level managers to the implementation of inclusive and accessible sporting environments comes from the underestimation of the significance of pwd as a customer group (paramio-salcines, grady and downs 2014). although those signatory countries of the un convention must promote sports opportunities in all levels of the sport development continuum, previous research has highlighted the lack of participation from developing countries in international disability sport events, especially in heavily indebted poor countries (cottingham, blais, gearity, bogle and zapalac 2015). in particular, several factors may have influenced the lack participation of athletes from developing countries in international disability competitions (e.g. political factors, historical origins and regional growth of international governing bodies and their membership, location of the host city and associated travel costs, climate and geographic barriers, etc.) (lauff 2011), hence hindering the potentialities of pwd from these countries to become paralympic athletes (ipc 2011a, 2015). following aitchison (2009), misener and darcy (2014), pitts and shapiro (2017), shapiro and pitts (2014) and veal (2015), one of the aims of this paper is to extent the focus of disability sport and elite disability sport from the human rights perspective. the role of the international paralympic committee (ipc) to promote the rights of pwd at the sporting level as part of its mission statement in their strategic plan 2015 to 2018 and as the principle global governing body of the paralympic movement, the ipc is a major advocate for the rights of the sport promotion of all athletes with disabilities (or para-athletes) worldwide (ipc 2015). similarly to other organisations, the ipc aims to increase and improve sport opportunities and competitions for para-athletes from grassroots to elite levels (chappelet 2014; thomas and smith 2009). as such, the ipc´s most outstanding area of concern is the organisation of both the summer and winter paralympic games, regarded as the world´s third biggest sporting event, which represent the peak moment of each four-year sports cycle for paralympic athletes worldwide. to fulfil the above mission, all athletes participating in the paralympic games or other world and regional championships in 13 sports (including athletics and swimming) controlled by the ipc itself must be nationals of one of the countries recognised by this organisation and be represented by their national paralympic committees (npc) (ipc 2011b, 2015). the npcs are national entities representing para-athletes for each of the ipc member countries. the functioning of these national governing bodies is diverse and often agglutinates various national disability federations for different sports and specific impairment groups with other national sporting organisations for the disabled. the npcs the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 126 are responsible, among others, for the organisation of disabled-specific competitions on the local level around the country and for the supervision and coordination of their athletes’ participation in all ipc international competitions as mentioned earlier. apart from these responsibilities, the ipc cooperates with international federations that act as the sole representative for para-athletes of a particular sport, either as part of the able-bodied international federation (e.g., para-cycling is governed by the international cycling union (uci)) or as an independent disabled international federation (e.g. international wheelchair basketball federation), for a current total number of 17 international federations (available for consultation on the ipc website). in particular, the ipc acts as the international federation for nine sports (e.g. ipc alpine skiing, ipc athletics, ipc powerlifting), usually referred to as ipc sports. furthermore, the ipc recognises various international organisations as the representative of a specific impairment group under the umbrella of the international organisations of sports for the disabled (iosds). the ipc currently recognises four iosds: cerebral palsy international sports and recreation association (cpisra), international blind sports federation (ibsa), international sports federation for persons with an intellectual disability (inas), and international wheelchair and amputee sports federation (iwas). these organisations work in partnership with the ipc to provide specific expertise to promote sport for athletes with a specific impairment-related condition at all levels. as was argued, the presence of the uncrpd signatory countries in the aforementioned organisations determines an important first institutional step for the fulfilment of opportunities provision for their athletes with disabilities to participate in international sporting competitions. analysis method procedure to inform this relatively unexplored theme in the leisure and sport academic literature, a worldwide country situation analysis was conducted. in a first step of the analysis, the authors checked whether each of the currently 172 signatory countries of the uncrpd had a national paralympic committee (npc), as these entities act as the national disabled sport organisations recognised by the ipc enabling the participation of athletes from these countries in all the designated ipc competitions (international federations recognised by the ipc and ipc sports). the list of the npcs is available for consultation on the ipc website (https://www.paralympic.org/). parallel to this data collection, additional information was included after reviewing the membership of the convention signatory countries within the four international organisations of sports for the disabled (iosds): cerebral palsy international sports and recreation association (cpisra), international blind sports federation (ibsa), international sports federation for persons with an intellectual disability (inas), and international wheelchair and amputee sports federation (iwas). descriptive data (total numbers and percentages) of the convention signatory countries’ membership within the ipc and the iosds was calculated. as part of this comparative study and in order to draw the international map, data was grouped by geographical regions as explained in the following section. jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 127 geographical coverage and level of development of the countries as the uncrpd, it was decided to consider the composition of macro geographical regions and sub-regions devised by the united nations statistics division. this geo-scheme groups continental and geographical sub-regions as follows: africa (divided into eastern, middle, northern, southern, and western africa), americas (divided into latin america –central and south america– and the caribbean, and northern america), asia (divided into central, eastern, southern, south-eastern, and western asia), europe (divided into eastern, northern, southern, and western europe) and oceania (divided into australia and new zealand, melanesia, micronesia, and polynesia). the countries comprising each of these regions are available on the united nations website (see http://www.un.org). moreover, the relationship between these geographical areas and the level of development of the countries was also analysed. to this effect and as there is no established convention for the designation of ‘developed’ and ‘developing’ countries or regions, the list provided by the united nations system was used as a reference: northern america, europe, japan, australia and new zealand are considered developed regions; africa, central and south america, caribbean, rest of asia (i.e. excluding japan), and rest of oceania (i.e. excluding australia and new zealand) are considered developing regions. results of the analysis table 1 shows the total number and percentage of the uncrpd signatory countries’ membership within the ipc and the iosds by geographical sub-regions and level of development of the regions. because of the different number of countries in each region, data should be interpreted in terms of the calculated percentages on the total number of signatories of the uncrpd. percentages greater than 100 indicate a number of member countries greater than the number of signatory countries of the uncrpd. see table at the end, on page 137 figure 1 shows a map depicting the overall uncrpd signatory countries’ memberships within the four iosds by geographical sub-regions with the aim of facilitating the visualisation and mapping of global data by continents and geographical sub-regions. see figure at the end, on page 138 global overview of the signatory states of the uncrpd and its relation to the international paralympic committee overall, almost all the signatory countries of the uncrpd are members of the ipc and have their own npc. founded on 22 september 1989 as a non-profit organisation, the ipc replaced the international co-ordination committee of world sports organisations for the disabled (icc) as the global governing body for disabled sport (brittain 2016b; ipc 2015; thomas and smith 2009). the establishment of the ipc the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 128 was an important step forward for the paralympic movement that would serve as an umbrella organisation with responsibility for disability sport worldwide. among others, one of the main responsibilities of the ipc is to ensure that all pwd have equal access to participation in sports events across all levels. as part of this role, it is important to stress the role of a national organisation that would act as the sole representative of athletes’ with an impairment from their respective countries under the designation of ‘national paralympic committee’ (npc) (hums et al. 2016). the npcs became responsible for the entrance, management and athletes’ preparation for all the ipc-sanctioned competitions, including summer and winter paralympic games, which meant that all those countries wishing to be represented in these events of an outstanding global impact would have to fulfil the npcs membership conditions and comply with their obligations as defined in the ipc constitution (ipc 2011c, 2015). the foundation of the npcs was gradual and depended mainly on the existing organisational structure for disabled sports that each country already had (bailey 2008; thomas and smith 2009). at the time of writing, the ipc currently serves a membership of more than 160 npcs playing a key role in the major growth of the paralympic movement around the world (brittain 2016b; ipc 2014, 2015; mauerberg-decastro, frances, and paioli 2016; thomas and smith 2009). apart from this role, the ipc makes an important contribution to the fulfilment of equal competition opportunities for their disabled athletes (lavaquemanty 2005). the same applies to the competitions of the 13 sports governed by the ipc as an international federation (thomas and smith 2009), within which all countries with an npc are recognised as their members, hence allowing their nationals to participate in the competitions (ipc 2011d). thereby, the vast npcs network has been gradually allowing athletes from countries all around the world, with no discrimination between regions and level of development of the regions, to participate in the ipc-sanctioned regional and international competitions of multiple sports (brittain 2016b). however, although this large international presence would reflect an important institutionalorganisational enforcement of human rights regarding states’ duties under the uncrpd to promote sports opportunities at all levels as discussed in this paper, previous research has highlighted the lack of participation from developing countries in international disability sport competitions, especially in heavily indebted poor countries. several factors may have influenced the lack participation of athletes from developing countries in international disability competitions (e.g. political factors, historical origins and regional growth of international governing bodies and their membership, location of the host city and associated travel costs, climate and geographic barriers, etc.) (lauff 2011), hence hindering the potentialities of pwd from these countries to become paralympic athletes (ipc 2011d, 2015). in this regard, the relationship between the level of development of a country and the level of its sporting development has been widely analysed, highlighting the economic development as the “only basic recipe against sporting underdevelopment” (andreff 2001). despite the important role that, in any case, the ipc and the npcs have played in the protection of the rights of athletes with disabilities to participate in top-level sporting competitions worldwide, in particular for the nationals of the uncrpd signatory countries, the isolated consideration of the npcs’ insights can hide potential differences jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 129 concerning the encouragement and promotion of the participation of pwd in mainstream sporting activities when comparing impairment specific sports. in this regard, a detailed analysis of the uncrpd signatories’ membership within the iosds, which are recognised by the ipc as the international independent organisations acting as the governing bodies of a specific impairment group, might contribute to point out potential differences in terms of geographical location and impairment specific sports between the signatories of the convention. overall, developing regions (africa, the americas except northern america, asia, and oceania except australia and new zealand) exhibited a notably lower number of members within the iosds than those in developed regions (northern america, europe, and australia and new zealand), with figures in many cases below 50 per cent of countries with representatives in these organisations in comparison to the total number of signatories of the uncrpd within the region. in particular, this holds for the three iosds representing athletes with cerebral palsy, intellectual disabilities and wheelchairs and amputees (i.e. cpisra, inas and iwas respectively). this scenario suggests a minor interest, or at least more difficulties, by the uncrpd signatory countries in developing regions to promote the foundation and development of national federations or organisations for the representation of athletes within the above mentioned particular impairment groups at the international competitive level. local national federations and/or sport organisations constitute the backbone of each country’s sporting environment, providing opportunities for well organised and structured participation in a particular sport or groups of sports. the role of these national sport governing bodies is critical to increase the participation in recreational and sporting activities, especially in the case of our group as they may face several additional barriers to becoming involved in sport compared with people without a disability (e.g. lack of accessible sport facilities and venues, lack of early experiences in sport, limited opportunities and programmes for participation, training and competition, etc.). the importance of a strong and well-organised sport governance structure, as chappelet (2014) remarks, is particularly relevant for our target group, as it is the only possible path to successfully break down the aforementioned barriers and enhance participation from the grassroots to the elite level, as well as from the local to the international level. a variety of barriers accentuated in developing countries by their interconnection with a range of economic, politic, social and cultural barriers that impact on sport participation (monnington 2005), in the light of the international scenario which has been exposed resulted in a widespread lack of national organisations that could provide sporting opportunities for athletes with disabilities within the three aforementioned specific impairment groups (i.e. cerebral palsy, intellectual disabilities and wheelchairs and amputees) in the developing regions, at least for the analysed uncrpd signatory countries. hence not contributing with appropriate institutional measures to ensure that their nationals with these specific impairments have the opportunity to participate in sporting activities to the fullest extent possible at all levels (i.e. regional, continental and international competitions organised by the iosds as the representative of a specific impairment group within the ipc structure: cpisra, inas and iwas respectively). the opposite is the case of the international blind sports federation (ibsa), which shows memberships ratios very close to the total number of the uncrpd signatories in all the the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 130 regions with no notable differences in terms of their level of development. conversely, the significant number of the states in developing regions with current membership in the ibsa reflects a widespread institutional support for the promotion of sporting opportunities for athletes with vision impairment worldwide. most interestingly, the above scenario would lead to a potentially higher enjoyment of the rights by persons with visual impairments to participate in sporting competitions at the international level in comparison to athletes with cerebral palsy, intellectual disability or wheelchair and amputees, in particular in the uncrpd signatory countries. this fact could be explained in terms of unlikely focus preference of national policies and programmes to implement a disability-specific sport environment for the blind, but in terms of a greater and wider capacity by the international blind sports federation to exercise its functions in order to ensure the growth and strength of the blind sports movement through the development of national member federations in all countries. multiple factors relating to economic, corporate status, strategic partnerships, among others, might explain the increased capacity of the ibsa in comparison to the other three iosds (i.e. cpisra, inas and iwas). future studies may try to decipher the specific causes for this. in any case and whatever the reasons, a significant increase in the overall membership, especially in less represented regions (i.e. developing regions), is countersigned as a priority in the current strategic plans of the three iodss with less international representation, in which they present their aims and ambitions for the upcoming years (cpisra 2013; inas 2013; iwas 2013). a fact that would contribute greatly to the reinforcement of human rights regarding countries’ institutional obligations under the uncrpd to promote sports opportunities at all levels without discrimination on the basis of the type of impairment as discussed in this article. concluding remarks the fact that a country is represented within the analysed international disabledspecific sporting entities (i.e. ipc member through a npc and/or member of the iosds) does not necessarily mean that it has national athletes playing regularly sport. however, this constitutes the first necessary institutional step to allow their nationals to take part in the competitions organised by these bodies, as these international entities are constituted by the different national federations or organisations of their member countries. since this was an exploratory study of the global picture, the presence of the uncrpd signatory countries in the aforementioned organisations would reflect an important institutionalorganisational enforcement of human rights regarding countries’ obligations under the uncrpd to promote and protect pwd’ rights as they relate to sport participation to the fullest extent possible at all levels as discussed in the article. overall, the international picture shows two different scenarios. on the one hand, the fact that almost all countries that ratified the uncrpd are ipc members, with no notable differences in terms of geographical location or level of development of the regions, reveals the extensive presence of the paralympic movement worldwide and highlights the key role of the npcs as the national governing bodies for allowing their para-athletes’ participation in international sporting competitions. hence protecting jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 131 pwd’ human rights within the signatory countries as they relate to participation in sporting activities, at least from the institutional-organisational sense. on the other hand, the presence of the different uncrpd signatory countries in the iosds shows important differences between regions and level of development of the regions, as well as among the four iosds representative of a specific impairment group themselves. developing regions exhibited a lower number of iosds members’ countries when compared to the developed regions, in particular for the three iosds representing athletes with cerebral palsy, intellectual disabilities and wheelchairs and amputees (cpisra, inas and iwas). conversely, the iosd for the blind (ibsa) shows membership ratios very close to the total number of the uncrpd signatories in all the regions without notable differences in terms of geographical location or level of development of the regions. as discussed above, this scenario leads to higher potential enjoyment of the rights to participate in sporting competitions at all levels by persons with visual impairments in comparison to athletes with cerebral palsy, intellectual disability or wheelchair-users and amputees, in particular in the uncrpd signatory countries. based on the above situation, specific significant efforts should be made by countries in developing regions to gain representation in the iosds representing athletes with cerebral palsy, intellectual disabilities and wheelchairs and amputees. to this end, local governments should take the appropriate measures (e.g. funds, resources, facilities, training and policies) to enable the creation of national federations and/or organisations to provide opportunities for well organised and structured participation in sports by people within these specific impairment groups. the example to follow is drawn by the significant number of signatories’ members within the ibsa with no notable differences in terms of geographical location or level of development of the regions, reflecting a widespread local institutional support for the promotion of sporting opportunities for athletes with vision impairment that result in the fulfilment of opportunities provision for their disabled athletes to participate in international sporting competitions, hence promoting elite disability sport as a fundamental human right. as with any research, there are some limitations to this study. in particular, two main limitations should be acknowledged. first and most importantly, as was explained in the introduction, it was argued that the membership of the uncrpd signatory countries within the different international disabled-specific sporting entities would reflect the extent to which the countries respond to the fulfilment of opportunities provision for their disabled athletes to participate in international sporting competitions, hence protecting their human rights. this research approach may hide the case of countries not yet having international representation in these organisations but already effectively taking the appropriate measures to promote the participation of pwd in sporting activities, but which in such possible cases would still be far from achieving their athletes’ participation to the fullest extent possible at all levels (i.e. international competitions). second and relatedly, the possible presence of the signatory countries within other disabled-specific international federations not within the group of the iodss was not taken into account. however, since the purpose of this research was to provide an exploratory worldwide country situational analysis with the aim of depicting the global scenario in relation to the institutional-organisational status within the signatory countries the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 132 of the uncrpd in order to promote and develop competition opportunities for their athletes, we modestly believe that it constitutes a fair representation of the current global picture that might be valuable in informing academics, institutions and professionals on the intersections between sport and human rights towards the integration of pwd into society through the participation in sports at all levels, including elite disability sport. 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(2011) world report on disability. who: geneva. world health organization (who) (2013) disability and health. who: geneva. jaime prieto, juan l. paramio-salcines the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 137 table 1. total number and percentage of the convention signatory countries’ memberships within the ipc and the iosds by geographical sub-regions and level of development of the regions. world region geographical sub-regions level of development no. of countries no. of crpd signatories international organisations of sports for the disabled npc cpisra ibsa inas iwas n % n % n % n % n % africa 58 40 48 120,0 5 12,5 26 65,0 11 27,5 1 2,5 eastern africa developing 20 12 16 133,3 0 0,0 7 58,3 1 8,3 0 0,0 middle africa developing 9 5 7 140,0 0 0,0 4 80,0 3 60,0 0 0,0 northern africa developing 7 6 6 100,0 3 50,0 5 83,3 3 50,0 0 0,0 southern africa developing 5 3 4 133,3 1 33,3 2 66,7 1 33,3 1 33,3 western africa developing 17 14 15 107,1 1 7,1 8 57,1 3 21,4 0 0,0 americas 55 31 30 96,8 7 22,6 24 77,4 12 38,7 4 12,9 caribbean developing 28 10 11 110,0 0 0,0 5 50,0 2 20,0 0 0,0 central america developing 8 8 7 87,5 1 12,5 7 87,5 4 50,0 0 0,0 south america developing 14 11 9 81,8 4 36,4 10 90,9 4 36,4 3 27,3 northern america developed 5 2 3 150,0 2 100,0 2 100,0 2 100,0 1 50,0 asia 50 37 38 102,7 16 43,2 28 75,7 14 37,8 13 35,1 central asia developing 5 3 3 100,0 0 0,0 4 133,3 0 0,0 1 33,3 eastern asia developing* 7 4 4 100,0 5 125,0 5 125,0 4 100,0 4 100,0 southern asia developing 9 7 4 57,1 2 28,6 4 57,1 2 28,6 1 14,3 south-eastern asia developing 11 9 9 100,0 3 33,3 7 77,8 5 55,6 2 22,2 western asia developing 18 14 18 128,6 6 42,9 8 57,1 3 21,4 5 35,7 europe 53 41 42 102,4 32 78,0 44 107,3 27 65,9 32 78,0 eastern europe developed 10 10 10 100,0 7 70,0 10 100,0 6 60,0 6 60,0 northern europe developed 18 10 10 100,0 12 120,0 11 110,0 8 80,0 9 90,0 southern europe developed 16 14 13 92,9 5 35,7 11 78,6 7 50,0 6 42,9 western europe developed 9 7 9 128,6 8 114,3 12 171,4 6 85,7 11 157,1 oceania 25 10 8 80,0 2 20,0 7 70,0 2 20,0 0 0,0 australia and new zealand developed 3 2 2 100,0 2 100,0 2 100,0 2 100,0 0 0,0 melanesia developing 5 4 4 100,0 0 0,0 3 75,0 0 0,0 0 0,0 micronesia developing 7 2 0 0,0 0 0,0 0 0,0 0 0,0 0 0,0 polynesia developing 10 2 2 100,0 0 0,0 2 100,0 0 0,0 0 0,0 the united nations convention on the rights of persons with disabilities and its effects on the promotion of elite disability sport: a worldwide analysis the age of human rights journal, 10 (june 2018) pp. 119-138 issn: 2340-9592 doi: 10.17561/tahrj.n10.6 138 * japan (eastern asia) is considered as a developed country in the used united nations system. npc: national paralympic committees. cpisra: cerebral palsy international sports and recreation association. ibsa: international blind sports federation. inas: international sports federation for persons with an intellectual disability. iwas: international wheelchair and amputee sports federation. figure 1. worldwide map showing the average percentage of the convention signatory countries’ memberships within the four iosds by geographical sub-regions. derechos humanos y vulnerabilidad the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 29 human rights and vulnerability. examples of sexism and ageism mª del carmen barranco avilés 1 abstract: a human rights based approach applied to the idea of ‘vulnerable group’ connects vulnerability and structural discrimination. the convention on the rights of persons with disability provides some elements that allow to state that we are facing a new paradigm in the international human rights law. one of the keys for the understanding of this new framework is the assumption of the disadvantage related to vulnerability as, at least in a part, socially built and ideologically justified. sexism and ageism are examples of how ideologies reinforce vulnerability of women, children and aged persons transforming them in groups which members are in risk of discrimination. keywords: vulnerability, equality, human rights, discrimination. summary: i. vulnerability and human rights; i.1. concept of vulnerability and human rights; i.2 a new paradigm?; ii. structural discrimination and “vulnerable groups”; iii. vulnerability, normality and power. some examples. i. vulnerability and human rights i.1. concept of vulnerability and human rights the concept of vulnerability is applied in different fields; in each of these fields it assumes partially different senses 2 . with respect to our purposes, at least we can identify two relevant uses. one of them is closely related with risk exposures and the other with discrimination. both concepts have a scope which is closely related, however distance themselves in the discipline concerned in the first instance, and the type of action required. 1 “bartolomé de las casas” institute of human rights, university carlos iii of madrid, spain (mayca@derpu.uc3m.es). 2 for example in bioethics, healthcare and medical research (solbakk 2011). human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 30 the perspective of vulnerability as risk exposure prevails within the field of humanitarian action and the assistance in case of disasters. the highlighted idea is that there are some groups whose members require more protection due to their weakness. there are two key aspects of this dimension, which are common to the other concept to which we will pay attention; these are care and reference to the groups. in some way, the vulnerability argument is an invitation to become aware of the different susceptibility to disasters that some persons show; this shared susceptibility becomes them a group (fordhman 2007). the assumption of this use is that circumstances in which some groups of persons are found against disasters, affect their capacity to face them, and, therefore, must be taken into account when they are given help 3 . this is not the sense to which i am going to refer mainly, if not to the following one, which, we could say is more related with the international law of human rights than with humanitarian international law. however, i cannot stop pointing out that attention to vulnerability within this context has experienced a change of focus similar to that produced in its use related with protection of human rights, as we will see in the next section. it is appropriate to point out that vulnerability treatment has been based almost exclusively on the identification of categories of vulnerable persons (children, women….), managed many times independently from the context, and not considering the capabilities of the persons included within these categories. this point of view has been complemented with simultaneous attention to capabilities. in this way, the vulnerability approach has led us also to resilience analysis, so that not only the risk exposure is taken into account, but also the capacity to recover (handmer 2003: p. 56). with the modification of the perspective, some of the problems derived from a more rigid use of the idea have been avoided. for example, the difficulties to take into account that in each context the groups that can identify as vulnerable vary; that the representation of vulnerability contributed to perpetuate the stereotypes associated with the group; the thoughtlessness of the potential of its members as agents against disasters; and in relation with the previous statement, a paternalistic attitude in which the persons of the group are ignored when defining their own needs and interests. we will see that some of the problems related with the first way of managing vulnerability which has been hereby considered, recurrently result in international law and 3 maureen fordhman, stated as an example: “making the assumption that earthquake relief aid delivered in a public setting in pakistan by male relief workers would necessarily reach widows and female heads of household is to misunderstand the cultural context that prohibits or discourages females from going out in public unaccompanied by male family members. after the earthquake, many women and girls failed to receive much-needed aid, or they suffered violence when transgressing village and tribal norms of honourable behaviour. similarly, in hurricane katrina, an evacuation call assumed erroneously that all victims had access to private transport, when in reality many people without vehicles were unable to escape and were left stranded on rooftops – or worse – during the ensuing floods (fordham 2007: p. 1). maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 31 the internal policies within the framework of the historical process of the specification of human rights. the parallelism between the way of facing vulnerability against disasters and the implementation of rights systems does not end here. the document what is vca? an introduction to vulnerability and capacity assessment (international federation of red cross and red crescent societies 2006: p. 8 and 10) 4 shows how reducing discrimination, reducing gender inequality and controlling power systems vulnerability is reduced and people’s capacity of response is strengthened. all these actions are required to protect efficiently the human rights of everybody. although originally the scope of use of these two ideas of vulnerability was not very different, it is possible affirming that when we are dealing with human rights, other definitions which relate it with a “tendency to discrimination” make sense. also, in this sense, the ideas of group and necessity of care are present; however, it refers more to justification and demanding of welfare provision than to risk against natural hazards 5 . the tendency is to consider that vulnerable groups are formed by those persons who meet two requirements. the first one is that there is a situation of inferiority, which may be derived from a socio-cultural or physical condition 6 . the second is that these situations “lead to a supposed weakness that law tries to palliate or correct” (peces-barba et al. 1995: p.181) and that means that individuals who are found in this situation “are incapable by themselves to satisfy their basic needs or participate in social relations on equal terms” (peces-barba et al. 1995: p. 317). in this way, differentiated treatments such as public policies are justified and lead to the specification process of rights. the rights added to the texts as a consequence of this process, unlike the way in which the rights of rationalist ius naturale are conceived do not have a universal ownership. these rights are assigned to some individuals who are considered a part of the vulnerable groups. it is true that there is not a pure concept about the meaning of vulnerable group in international law; however, it seems to be appropriate to use it for these persons, to whom it is considered as justified the recognition of specific rights. in the words of mona pare, “the term “vulnerable group” is not found in the international legal instruments. however, it seems to be the most appropriate way to designate groups of persons who are treated separately by the law of human rights due to their vulnerable position within society can 4 see specifically figure 1 (“crunch” pressure model) and 2 (“release” model). 5 in what is vca? an introduction to vulnerability and capacity assessment the difference between both uses is shown: the definition of vulnerability used in vca was at times vague and did not relate to natural hazards. instead, pre-defined groups were identified as being “vulnerable” and requiring some form of welfare provision (examples included the unemployed or poor; sick or elderly; hungry or addicted; bullied or abused). (international federation of red cross and red cross crescent societies 2006: pp. 18 and 19). 6 g. peces-barba adds to these circumstances “the situation that some persons occupy in some specific social relations”, with that consumers would be included among the vulnerable groups (peces-barba et al. 1995: pp.181-182). human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 32 limit the enjoyment of human rights” (pare 2003: p. 6) 7 . some of these individuals had been traditionally recipients of assistance by the public powers or private agents, on many occasions, justified by welfare. the specification process represents a very important step towards equality, because this attention becomes a human rights matter. for this reason, the states are obliged to develop public policies addressed to satisfy the needs of these groups. the aim is to compare them with “the generic models of the target group of rights’ (pecesbarba 1995: p. 182). however, the interventions carried out as a consequence of this process are directed almost exclusively to the protection of vulnerable persons, and they do not consider their will and, neglect their participation in political processes in general and in the decisions that affect them as a group or especially as individuals. in this way, interventions acquire a paternalistic character. on the other hand, the specification process contains the trap of normality. in a certain way, the starting point is that there is a normal situation, which is considered in relation with the abstract ownership, and “abnormal” situations where certain individuals are found. the differentiated rights are directed to the normalisation of these individuals, with which the interventions seem to contain a preference for “that which is normal” as representative of human dignity. in short, this priority contributes to the consolidation of the man who is white, bourgeois, heterosexual and socio-physically independent, as the ideal of humanity and results compatible with the survival of the power relations of those who achieve adjusting to this model against the rest. there is another element that the groups considered as vulnerable share, “their members are vulnerable to discrimination because they are members of the group”, so that, “the main characteristic of the vulnerable groups is the risk for their members of being treated in a different way due to unlawful grounds based on the social stigma” (pare 2003-2004: p. 6 and 9). the deepening in this idea that vulnerability is closely related with risk of discrimination, as well as the revision of the image of the right holder, permits venturing a change of paradigm in the treatment of vulnerability within moral reflection, and at least, related with some groups and contexts, within positive law of human rights. 7 alexander morawa, highlights the lack of an exhaustive list of vulnerable groups in international law of human rights and he proposes as criteria: age, sex, ethnic group, sometimes related with the residence status” (minorities and indigenous people, rural population, persons who live in islands, persons who live in “zones with risk of disaster”), health condition, freedom condition, other conditions (morawa 2003: p. 141). maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 33 i.2. a new paradigm? according to the reflection stated above, vulnerability depends on a personal condition shared by the members of a group. the identification of a group as vulnerable based on this concept permits justifying a differentiated treatment which is directed, mainly, to the protection of the members, and adopts an almost exclusive perspective of standardisation. facing this model, it is possible to state that we have witnessed a change of thinking. in my opinion, the turning point of the new paradigm of vulnerability is the international convention on the rights of persons with disabilities, and is formulated on three elements. the first one is the revision of the theory of justice based on rights; the second has to do with the application of the approach based on rights to treat disability; finally, the convention introduces a social concept, and not an individualised one, of disability. the international convention on the rights of persons with disabilities means the consolidation at international level of a conception of human rights, in which these rights are definitely separated from their abstract holder, which means a revision of the theory of justice based on rights. although i will go back to the idea later, we must remember that these theories establish the justification of the rules and the institutions in the protection of human rights and are characterised by universalism, individualism and egalitarianism (gonzález amuchastegui 2004: p. 83). so, in spite of these assumptions the rights should correspond with all the human beings, the protection systems have been constructed in a particular way. in effect, universalism and individualism, which have been historically established on the basis of phylosophy of human rights, have permitted justifying that the righst and the capacity to exercise them is only assigned to those who correspond with the abstract holder in the collective imaginary, that is to say, those who are autonomous and rational in the social relationships (barranco, 2010, pp. 26 y ss.). given that dealing with disability as a human rights issue implies the acceptance that instrumentalisation of persons with disability represents an attack against human dignity, the convention on the rights of persons with disabilities represents the abandonment by the international community of a scheme in that the authentic rights are appropiate to safeguard dignity, the man who is white, bourgeois, heterosexual and socio-physically independent. on the other hand, within the text of the convention 8 it is clear that autonomy is not the assumption for the conferring of rights, but, in large part, the objective pursued. 8 and specifically article 12 establishes the right of persons with disabilities to “equal recognition before the law” human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 34 in short, the convention implies the revision of the theory of the justice based on rights which may justify the international law of human rights. a reflection which undelies it regards the way in which the different situations in which the holder can be found determines hazards for his dignity. an important milestone in the creation of this new paradigm was the international convention on the rights of the child (1990), which introduces the international system of protection of childrens’ rights as human rights. in spite of the text is in line with the specification, it highlights the importance of the child’s will in relation with the decisions that affect them (article 12). we must remember that the trigger of the process was the confirmation of there are some individuals, or some circunstamces in which all the individuals can be found, which may be considered as being outside of normality. the ownership of the rights resulting from the specification corresponds to these abnormal persons. this point of view, as it has been pointed out, led to paternalism, and as we will explain below, paternalism is far from an approach based on rights. from the point of view of the convention on the rights of the child, not only specific rights are recognised, but also the childrens’ ownership of all the human rights is highlighted. secondly, the convention on the rights of persons with disabilities implies a change of approach with respect to the treatment of disability, because this has become a human rights issue in the institutional agenda. the model of protection of rights of the convention constitutes the spearhead which permits arguing in favour of an approach which is based on rights for public policies related with vulnerability. these policies have been historically adjusted to three possible types, according to the principles on which they are inspired and the intervention agent: conservative, technocratic and social. the conservative policies are characterised because they leave in the hands of society the treatment of persons who, as those who live with disability or women, are considered to share characterisitcs with other persons which remove from “normality”. from this point of view, conservative policies imply the non intervention of political power. as we can see, not to make politics (that it to say, being neutral) is a type of politics. in the particular case of disability, from this view, it refers to consequences of past actions reprehensible morally of those who suffer them or their parents. furthermore, those persons affected represent a burden for society, therefore, it would be better that they did not exist. technocratic policies imply the acquisition of leadership by public power, whether in the definition as well as the implementation of policy. they are based on utilitarian arguments, so that intervention is directed to recover persons for society, or to avoid a big evil in relation with the cost of the measures. the main purpose of the policies is not the protection of rights of the persons to whom they are directed, but improving the global welfare of the society on which intervention is made. maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 35 finally, public policies of social type are directed to the exercise of rights by the persons to whom intervention goes back. these persons are not considered as “abnormal”, they are considered as representatives of human diversity. furthermore, the definition of intervention, as well as the implementation of the same are articulated with participation of these persons. within the context of this model, the exclusion suffered by persons with disability (and, in general, by those included in “vulnerable groups”) is considered a discrimination issue and, therefore, a human rights issue. in this way, the approach based on rights is introduced in the treatment of vulnerability, that, as is described in the programme of reform of the secretary-general of united nations in 1997, presupposes that the aim of intervention is rights, that participation is the mean and the result must be the empowerment. however, the scheme is only possible if a previous revision of the concept of vulnerability has been made, which in the case of the convention becomes clear in the concept which manages of person with disability. so that, the third element on which the change of paradigm is articulated is the social model of disability. we can find this new model in the definition of persons with disabilities which is stated in article 1 of the convention : “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. according to this, disability is a consequence of interaction between an individual condition and the existence of social barriers. from this point of view, the way in which society is organised causes disability. some keys to understanding the meaning of the social model and the scope of its incorporation into an international text of protection of human rights can be found in the work of abberley, “the concept of oppression and the development of a social theory of disability”, in which the author proposes applying the scope of the concept of disability to the concept of oppression which had been forged within the context of theories about “racial and sexual disadvantage”. with this, the following is being defended “on significant dimensions, disabled people can be regarded as a group whose members are in an inferior position to other members of society because they are disabled people. it is also to argue that these disadvantages are dialectically related to an ideology or group of ideologies which justify and perpetuate the situation. beyond this it is to make the claim that such disadvantages and their supporting ideologies are neither natural nor inevitable. finally it involves the identification of some beneficiary of this state of affairs.” (abberley 1987: p. 7). it is possible to conclude that, from this perspective, the difference between the normal and non-normal becomes a power issue. and the conclusion is interesting, not only in the representation of disability, but also in the reflection about vulnerability, which is bound closely with structural discrimination powers and, therefore, with the presence of oppression and domination conditions. human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 36 in this way, a vulnerable group is formed by persons that in some important aspects are found in a position of inferiority, precisely due to the quality that identify them as members of that group. up to here, the meaning does not differ from that used in the specification process, however, this new paradigm implies to assume that the vulnerability position is justified ideologically, therefore, it does not have to be natural or inevitable; and in addition to this, “someone” benefits from this disadvantage situation. ii. structural discrimination and “vulnerable groups” when we say that a fair society is a society organised with the purpose of persons exercising their rights, we are adopting a theory of justice based on rights. as it has been shown, the acceptance of this type of theory implies assuming that equality is one of the values that must direct the ruling of institutions. there are other conceptions about how we must organise that could lead us to justify equality. for example, utilitarianism. in contrast with utilitarianism, which is consequentialism, a theory of justice based on rights starting from the idea that actions are good or bad in essence, independently from the consequences, and furthermore, that human beings are not interchangeable. indeed, for those who defend a theory of justice based on rights, the state is justified to the extent that it is capable of establishing the appropriate conditions to safeguard human dignity. in other words, the aim of the political organisation is to prevent human beings from being treated as mere means. and precisely, human rights are instruments directed to safeguard persons against their instrumentalisation. furthermore, as dignity is a common characteristic of all human beings, all of them are rights’ holders. egalitarianism which is assumed in the theories of justice based on rights is derived from the acceptance of common dignity. however, since its origin, these theories have tended to consider that the human being of whom dignity is declared is the man mentioned above; white, and bourgeois, economical and socio-physical independent. on the one hand, such relation is based on enlightened rationalism, and, on the other hand, on political liberalism. both conceptions assume individualism and relate dignity with moral agency, which depends on autonomy. dignity implies being capable of choosing between choices of action and being responsible for one’s own decisions. the issue is that in the social field, when the bourgeois revolutions take place in the current united states of north america and in europe, autonomous is the real individual described above. he is the holder of dignity and rights. therefore, equality in this model is compatible with the idea that not all the human beings have the same value. women, persons who must sell their work in exchange for a salary, persons with disability … if they are not autonomous likewise they are not honourable. maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 37 equality which is included in the human rights texts at that historical moment was referred to formal equality, with which the neutrality of the state is guaranteed: through the law, differences between circumstances that in the relevant aspects are equal cannot be established. sex, age, nationality, income, etc., are relevant from the point of view of autonomy, therefore, justify the possibility of different legal treatments in the attributing of rights. therefore, from the point of view of public policies, the model which is justified is the conservative. facing this conception, there are proposals that highlight that equality of rights must go beyond formal equality. the starting point is the revision of the rationalist and enlightened idea which states that law has to be neutral. to illustrate that neutrality of liberal law was an ideological instrument which permitted disguise and legitimate, and therefore, keep in the most absolute arbitrariness, social relations of domination, the scope of wage work can be taken as example. as it is known, in the nineteenth century, europe becomes industrialised, and the legal covering of the relationship between employer and worker is the services agreement (gierke 1982). this contract, of civil nature, is based on free will, that is to say, the idea that employer and worker are both free, and therefore, they had to agree freely the conditions of the exchange of money for work. law treats employer and worker equally, however, the application of equality in a situation which is materially different, contributes to disguise and perpetuate exploitation and, therefore, in fact makes the inequality worse. such reflection is one of the principles of labour law, which means breaking formal equality from two points of view. on one hand, because accepting the different power situation, establishes restrictions to what can be agreed; on the other hand, because it recognises the capacity to negotiate to the collective agents who represent the workers’ interest. to understand the meaning of equality within the context of rights, it is necessary to refer to the discrimination concept, which in the universal system for the protection of human rights is explained in two texts, the convention on the elimination of all forms of racial discrimination (1965) and the convention on the elimination of all forms of discrimination against women, hereinafter cedaw-(1979). according to these instruments, “discrimination” should be understood to imply any distinction, exclusion, restriction or preference which is based on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms (ccpr, general comment 18, 10-11-1989, § 7). from the concept of vulnerability which has been stated above, we have to understand that the persons, who are susceptible to discrimination due to the reasons enumerated, are in a vulnerability situation. protection against discrimination stated in international instruments is referred to discrimination in law as well as discrimination in fact (§9) and the states can take specific actions to grant certain preferential treatment for a time when “the general conditions of a human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 38 certain part of the population prevent or impair their enjoyment of human rights” (§10). in short, affirmative actions are being considered as an admissible solution against the discrimination suffered by some population sectors whose situation impedes or makes difficult the enjoyment of human rights. cedaw is especially interesting because its article 5 contains a call for the states parties to take the appropriate measures to eliminate social stereotypes 9 , reflects the ideas of the origin of discrimination against women is found in the way in which society is organised and only pointing to that organisation it is possible to face it. therefore, it is a structural discrimination. structural discrimination has its roots in the presence of social stereotypes that assign the discriminated persons subordination roles, but theories of rights have been enunciated on two assumptions which make them impervious to vulnerability as it is understood: individualism and the definition of political freedom as non interference. as has been mentioned above, theories based on rights are individualist. individualism implies that human beings are capable of choosing and being responsible for their actions. moral agency depends on it and, therefore, the assignment of rights. when social stereotype denies the person the capacity to choose (and it happens with women, children, elderly persons and persons with disabilities), one of the characteristics that is unanimously considered as distinctive of human dignity is also denied. for this reason, the exclusions and restrictions of fact are considered as justified and, sometimes, these exclusions and restrictions are protected legally. on the other hand, human rights appear as a theory bound to political liberalism and to the idea of freedom as non-interference. from this model, it is considered that rights form a barrier around the holder within which his will is sovereign. the matter is that, when stereotypes become persons dependent on other persons, the rights serve to legitimise and strengthen the power relationships produced in private spaces. nancy fraser distinguished between the groups of persons that have been traditionally considered as vulnerable in terms of two categories of injustice: socioeconomic and cultural. while the first one has to do with “the lack of movable goods essential to lead a decent life”, the second is shown in behaviours such as cultural 9 according to this order, “states parties shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases”. maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 39 domination, non recognition and disrespect (fraser 1997: p. 21 y 22). both injustices generate inequalities because they place some groups of persons at a disadvantage in relation with others. the author considers that social policies that try to correct the distribution and recognition of problems without paying attention to the causes are not satisfactory. in some way, this has been the direction marked by the specialisation process and a part of the problem is derived from it: the results of the exclusion of individuals not considered as normal are corrected, but the distinction between those who are normal and abnormal is not called into question. for her part, iris marion young considers that distributive theories (and this criticism can be applied to fraser's approach) do not consider the aspects related with taking decisions, social division of work and culture and, therefore, they are not appropriate in relation to the two big consequences of structural discrimination: oppression and domination. oppression becomes an obstacle for self development, from the moment it affects the possibility of expressing one’s own feelings, perspectives and interests. it is a direct consequence of the denial of moral agency, and it is shown through exploitation phenomena, alienation, lack of power, violence and also through the cultural imperialism. for its part, domination affects the capacity to decide one’s own actions. whether the first, as with the other, derives from the denial of the moral agency and is strengthened by the liberal construction of rights, the main problem of these type of theories (that marxist proposals do not solve) is that they do not take into account that society generates in large part the identities and capacities. a social concept of vulnerability, such as the one applied by the international convention on the rights of persons with disabilities to disability is fully in tune with this criticism (young 2011: pp. 15-38). from this point of view, vulnerability has been considered, in large part, from anti discrimination law. this strategy means, amongst other issues, breaking up the idea that law and state are neutrals. and precisely, the survival of discriminatory structures permits the justification of affirmative action measures (carter 1991). such types of measures have adopted different manners, for example in united states, where in the labour field and in relation with racial and sexual discrimination, different techniques have been developed, as jurisprudence of “disparate impact” or the “impact treatment”, which implies a reversal of the burden of the proof and, since 1979, of the “voluntary affirmative action” (higgins and rosenbury 2000). human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 40 iii. vulnerability, normality and power. some examples. i am going to refer to three particular vulnerabilities in this section, which affect women, related to sex; and those that affect children and elderly persons, which are associated with age. these exclusions share and have in common characteristics with those persons affected with disabilities that are justified in the presence of a natural circumstance that is considered as an obstacle for autonomy, and, therefore, a justification for the persons that under these conditions are subject to other persons’ power. in all these cases, we find structural discriminations strengthened historically by law. in the same way that law strengthens discrimination, it may contribute to compensate it; however, accepting that discrimination is structural implies that law, by itself, is not enough to guarantee equality conditions. and this situation is appreciated clearly in the case of women and elderly persons. in the case of women, the origin of "vulnerability" is placed with sexism. enlightened feminists have denounced, from the beginning of liberal revolutions, the exclusion of women. however, the recognition of this as structural discrimination is built from the radical feminist criticism. that initial exclusion was not spontaneous or thoughtless. on the contrary, there was a determined positioning by republicanism in favour of the natural character of inferiority of women. it is interesting to remember kant’s reflection on excluding women and wage workers from active citizenship. according to this author, neither women nor wage workers are autonomous, therefore, their will is irrelevant for the determination of the general will (kant 2004: p. 149). among other reasons, in the case of women, this lack of autonomy derives from their incapacity to choose, which is produced by their lack of training and their added incompetence for abstract reasoning. only in the last point, kant agrees with rousseau, who, precisely in their works about education (rousseau 1985), point out the need that women’s training has to be consistent with their feeling nature. against this characterisation of female condition, wollstonecraft (1792: p. 55) had highlighted the reason as being the distinctive characteristic of the dignity of human being: “the perfection of our nature and capability of happiness must be estimated by the degree of reason, virtue, and knowledge that distinguishes the individual, and directs the laws which bind society. and that from the exercise of reason, knowledge and virtue naturally flow is equally undeniable, if mankind be viewed collectively.” since woman is a part of mankind, she has, as man, the condition of being rational, so that the lack of reasoning by women, as a specifically human faculty, is only due to the education received. maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 41 as in the case of other exclusions, the enlightened thought and use a natural condition, sex, to justify the social inferiority of woman. mary wollstonecraft highlights that the predisposition of woman towards emotion is not natural, but it has been built culturally. all of that is independent from the criticism of the idea that she maintained about the male is the ideal of the human, and, therefore, her purpose is to make women equivalent to men, with a certain scorn of “female”. in this line, simone de beauvoir, points out that “woman is determined not by her hormones or by mysterious instincts, but by the manner in which her body and her relation to the world are modified through the action of others than herself; the abyss that separates the adolescent boy and girl has been deliberately widened between them since earliest childhood; later on, woman could not be other than what she was made, and that past was bound to shadow her for life. if we appreciate its influence, we see dearly that her destiny is not predetermined for all eternity” (beauvoir 1998: p. 896). however, against enlightened feminism, but also against the liberal feminism of the twentieth century, s. de beauvoir added two elements of great significance for a posterior reflection. on the one hand, social subordination of women has benefited men, and economic transformation is not enough to subvert this order. on the other hand, the solution of considering woman and man equal has been a failure: “the woman of today is torn between the past and the future: she appears most often as a “true woman” disguised as a man and she feels herself as ill at ease in her flesh as in her masculine garb. she must shed her old skin and cut her own new clothes. this she could do only through a social evolution” (beauvoir 1998: p. 896). and this diagnosis of simone de beauvoir permits a better understanding of the scope of women’s “vulnerability”, but also of all those persons, such as children, elderly persons or persons with disabilities who are identified as group by a supposed natural condition. radical feminism goes into these arguments in depth from its recognition of the politicisation of private life. so that, the motto ‘the personal is political’ (hanish 1970) constitutes a call for attention on the fact that also power relations have been established in private relations that favour men, and within these relations the conditions that prevent women from reaching equality are constituted, in spite of the fact that legal obstacles have been eliminated. this reflection permits justifying the intervention of law and rights in that space, which had been impermeable up to now, and can be applicable to other vulnerability situations. on the other hand, radical feminism adopted the category of gender “to insist on the inadequacy of existing bodies of theory for explaining persistent inequalities between women and men” (scott 1990: p. 43). this instrument, which appeared at the end of the twentieth century, attempts to be used for showing how from the biological circumstance of sex, since from the time human beings are born, they are given a series of characteristics which imply also the share of social power. female characteristics (which are attributed to women) will suppose their higher aptitudes to develop care tasks, for persuading and getting on in the private field. on the contrary, male characteristics are defined through appropriate features for human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 42 calculating interest, authority and performance in public spaces. women will stop being vulnerable when this system is dismantled, a system where men had been the main beneficiaries. equality feminism and difference feminism debate over which is the aim from this point. to explain the scope of the discussion in terms of vindication of rights, it is advisable to remember the sense of the historical processes of generalisation and specification (bobbio 1991). both are constructed as a succession of responses against the incoherence between the formal proclamation of equality and the effective situation of inequality. the process of generalisation supposes the extension of “citizenship” to some that were only “men” before and to some that not even had this condition. we must remember that the process of specification is produced when situations are considered in which the material inequality of individuals belonging to some groups prevent the effective enjoyment of the recognised rights. so, equality feminism and difference feminism would lead to different answers to the question concerning the appropriate strategy in relation to the effectiveness of women’s rights as to whether it is generalisation or specification. in any case, it seems that the debate about which qualities are specifically female cannot be carried out insofar as, firstly, the foundations for generalisation have not been laid and, secondly, the moral and political theories have not been revised from a gender focus. women have come to have the same rights than men attributed formally, however, there are many influential groups in our societies that continue to present them as incomplete human beings who are not worthy in the same sense as men. this incomplete character of women is the real ground which justifies the worse treatment that women receive (and which is reflected in realities such as the horizontal and vertical segregation in the workplace, or the scorn of her integrity and her life) 10 are not considered incoherent with the proclamation of equality. the type of discrimination that affects persons of advanced age and children can be considered as “ageism” and is shown in a different way in the two cases. in the case of children, the exclusion is formal, given that minor age is a commonly accepted argument to justify a differentiated treatment. in the case of elderly persons, the exclusion is not formalised, but we will see how stereotypes associated with advanced age justify equally discrimination. 10 “sex discrimination kills women daily. when combined with race, class and other forms of oppression, it constitutes a deadly denial of women’s right to life and liberty on a large scale throughout the world. the most pervasive violation of females is violence against women in all its manifestations, from wife battery, incest, and rape, to dowry deaths, genital mutilation and female sexual slavery. these abuses occur in every country and are found in the home and in the workplace on streets, campuses, and in prisons and refugee camps. they cross class, race, age, and national lines; and at the same time, the forms this violence takes often reinforce other oppressions such as racism, "able-bodyism", and imperialism” (bunch 1990, 489). maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 43 rarely have the texts of positive law contained children’ rights and, on the contrary, frequently the notions of “protection” and responsibility appear in the titles of the rules. children’ rights not only do not appear to a large extent in the language of legal rules, but also their inclusion in the theory of rights is relatively recent and is bound to the process of specification. for the liberal conception of law and rights, minors are incapable (fanlo, 2004, p.8) and the consequences are, mainly of patrimonial type. the minor acts in the economic traffic by representation. in this approach, there is only one subject of law and the capacity, related with age, is acquired also in a specific moment. children’s rights do not exist because rights are assigned to men and citizens. children may have attributed formally the same rights as adults, however, from this liberal reflection, they are incomplete human beings, as women and persons with disabilities were, because they are not autonomous. again there is a natural circumstance that affects the possibility of giving the children the same treatment as adults. in the relevant circumstance for the attribution of rights, the legal age, is not equal to adults, for this reason, it is not an exception to the equality principle that children cannot exercise many of their rights by themselves or in relation to others (as political rights) as they do not even have conferred ownership. the convention on the rights of the child was adopted by the general assembly of united nations on 29 november 1989, constituting the first legal-international instrument in this matter of binding nature and, also, adopting a starting point that is very different from that of other documents about children, because in this context we find an express reference to the child as a holder of rights. effectively, within the convention, a child’s rights are not rights of the adult he will become in the future, but rights that take into account, on the one hand, the specific circumstances affecting children and, on the other hand, that children are worthy as children (and not as potential adults), therefore, it is important to implement rights that take into account these differences to avoid children being treated as mere means 11 . it has been already pointed out that this is an important aspect from the point of view of the history of rights, because it implies the incorporation of a diversified image of the rights’ holder to positive law of human rights. on the contrary, generalisation has not had big repercussions in positive law that affect the configuration of childrens’ rights. timidly, under the convention mandate, national legislations will include references to the need of considering the child’s view in all matters affecting him, but in these situations, the responsibility of determining the degree of “autonomy” of the child usually falls on the person who receives the consent, who may be subject of a posterior control. in spite of the scarce consideration that the minor’s will deserves today, there are approaches that, from the verification of the evolving 11 an example of this type of rights can be found in the convention on the rights of the child, article 9.1 which states that a child shall not be separated from his or her parents, or in article 31.1 which recognises the right of a child to engage in play and recreational activities. human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 44 capacities of the child (lansdown 2005), propose a reconsideration of the limit of full age as fixed data for the effects of attributing some rights. in a significant way, this reflection affects political rights, but also to the consideration of their will, to which i have just referred (campbell 1992). as it has already been pointed out, child vulnerability maintains a clear parallelism with the formal exclusion of women and persons with disabilities, because in both cases, a natural condition is referred to which becomes an obstacle for moral agency. when rights depend on this moral agency, and furthermore children are not considered as moral agents, they are not holders of rights in the moral field. from this point of view, the positive rights that can be attributed to them are not justified by moral rights. rather the foundations of these rights will be constituted by the obligations of other subjects. moral rights protect the exercise of moral autonomy; therefore, it only makes sense to assign them to the subjects which are morally autonomous. on the other hand, these theories presuppose the idea that the exercise of rights has to be at their holder’s disposal, given that, in no way interferences with respect to the freedom of moral agents can be justified if they are not directed to avoid damage to third parties. some authors who start from this idea about rights, however, think about the possibility of attributing rights to some children who precisely have achieved a level of autonomy comparable with adults. in some way, the recognition of the agency is determined by scientific studies about the process of acquisition of capacities by children, which may also vary in the different cultural and economic scenes. if children acquire their rights as their capacities progress, until they reach a sufficient level of development, we can only justify their protection (not their rights) based on the imposition of duties to other subjects, in other words, we should talk then about duties towards children. however, we should put the same level of moral quality on small children (and, we could say, of the persons who do not reach the required level of autonomy) as we do for the protection of animals, the good of general interest or the environment contradict our moral institutions. within a context where moral theories are based on rights, the attribution of rights supposes to offer an argument which is out of the calculation of interests, children have to have rights. if a theory cannot reflect this situation, this theory is not appropriate. from this point of view, the revision of the idea of agency which justifies the scope of the international convention on the rights of persons with disabilities makes sense, and specifically, article 12 (cuenca 2012). the first difference between ageism referring to children and the elderly is that the presence of explicit references to the elderly in positive law is scarce. socially, a person is considered as older from 60-65 years. this definition is arbitrary and it only makes sense in a westernised context 12 , for this reason, functional (and not chronological) delimitations are also proposed about what becoming older implies. legally, there is not a definition of older person. the nearest category is retirement, which is related to a westernised concept, but 12 http://www.who.int/healthinfo/survey/ageingdefnolder/en/#, consulted on 25 april 2013. maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 45 not all older persons are retired because for this, retirement systems have to exist and also to be active. recently, the idea of old adults has been usually related to the idea of a dependent person, although there is not a necessary relation in this case (barranco y bariffi 2010). maybe for this reason, direct formal discriminations have not been frequent, historically, but they are in fact indirectly discriminated subjects, to the point that the inclusion of rules prohibiting and penalising discrimination due to age are claimed. unlike the children situation, the elderly are not considered to be legally incapable, therefore they have full legal capacity and capacity to act (except for formal incapacity). but this legal comparison does not mean that older persons may exercise their rights under the same conditions. in spite of the incidence of discrimination of all the texts of the universal system, only the international convention on the protection of the rights of all migrant workers and members of their families bans discrimination due to age in article 7 (1990) 13 –the same does not happen in the european union or in spanish law, where age has become one of the prohibited bases for discrimination. considering these deficiencies, the general assembly adopted a resolution on 13 february 2013: “towards a comprehensive and integral international legal instrument to promote and project the rights and dignity of older persons” (a/res/67/139), “acknowledging that there are numerous obligations vis-à-vis older persons implicit in most core human rights treaties but that explicit references to age in core international human rights treaties are scarce, that there is no such instrument for older persons and that only a few instruments contain explicit references to age”, encouraged by the increasing interest of the international community in the situation of older persons. this interest is due to the ageing of the population (from 1950 to 2010 life expectancy in the world has increased from 46 to 68 years and in 2050 it is foreseen that persons older than 60 years will exceed 20% of world population), and it is reflected in the policies and programmes related with health, welfare and social security carried out in the last 10 years. however, at this moment, elderly persons do not exist as a legal category (unlike minors), therefore there is traditionally a situation of formal equality. however, that formal equality has been historically compatible with situations of material inequality and discriminations caused indirectly, which assume a structural nature and are related to a social perception of old age. we have seen how protest movements related to women and children have been reflected in international documents of positive law and also in the internal legal systems. in 13 strengthening older people rights. towards a un convention, http://social.un.org/ageing-workinggroup/documents/coalition%20to%20strengthen%20the%20rights%20of%20older%20people.pdf, consulted on 22 april 2013. human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 46 the case of elderly persons, the situation is different, except for the timid manner pointed out. partly, it is due to a social conception of old age which prevails in our cultural context and is characterised by a series of pejorative connotations. old age is something to avoid, the elderly are a burden for the social security and health systems –they consume a lot of resources– and, in addition to this, they cannot work (walker 1999). in general, this attitude is known as “ageism” (melero y buz 2005) –due to its similarity with sexism or racism– and it supposes the appearance of behaviour that goes from the rejection of violence passing through discrimination. maybe this attitude that is again based on stereotypes that do not correspond with scientific evidence is the reason why older people had been the big forgotten in the generalisation. in addition to the negative repercussion of the treatment that others give to old persons, this image is also shared by its own subjects, so that they stop recognising themselves as creditors of equal dignity and respect, in other words, as holders of rights. on the other hand, the lack of attention to the subordination structures established leads to present as free decisions that have been conditioned, as in the case of women (añón 2010). in fact, as it has been pointed out, different documents highlight that interest in the elderly is explained more by the statistical verification of old age and longevity and the bond with the gender problem than an awareness of their traditional exclusion in the system of rights. in some way, the purpose is inventing formulas that avoid the collapse of the pension and health systems, as well as “free” women. i think that it is necessary to redirect public policies directed to old persons and reconsider them as policies of rights. only if the rights of older persons are moral rights, they are represented as demands that are necessary to meet. furthermore, the current tendency does not consider autonomy of persons of advanced age. this is a particular situation within the context of the history of rights that cannot be considered equal to the women and children situation and that, in relation with those, has meant that the elderly be excluded from freedom and equality, meaning they have been victims of domination and, in the most extreme situations, of mistreatment socially accepted. in relation to the vulnerability of the elderly, it is extremely important to recover the feminist reflection that the personal is political. effectively, we must remember that the distinction between public and private, with respect to our interests, frequently results in the actions affecting women, children and elderly being included in the privacy scope and, therefore, being considered as expressions of freedom legally protected by husbands, parents, guardians, or in the case of elderly, caregivers. the “violations” of rights by relatives remain, from this dichotomy, out of the political scope. on the other hand, the conception of rights as barriers against interferences which correspond with their first formulations within liberalism, means forgetting that human beings cannot develop all their faculties fully without the help of some “interferences” from other maría del carmen barranco avilés the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 47 subjects (parents, teachers, partner, children….); and, which is especially important in the case of women, children, elderly and other persons considered traditionally as “vulnerable”, the lack of interferences is compatible with the survival of situations of arbitrary domination which many times pose a threat, and even an obstacle, for development (for example, we must remember that parents enjoy parental authority in relation to their children). furthermore, in all these cases an addition of discriminations is carried out. in this way, the problem is even more pressing when exclusion by age is added to exclusion by gender and even more so when different situations coincide, such as with disabilities, cultural or ethnic or sexual minorities and being immigrant. human rights and vulnerability. examples of sexism and ageism the age of human rights journal, 5 (december 2015) pp. 29-49 issn: 2340-9592 48 references abberley, p. 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(2011) justice and the politics of difference, 2ª edición, princeton university press, new jersey. spanish version by silvina álvarez, cátedra, madrid, 2000. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 25 the crisis of state sovereignty and social rights sandro staiano 1 abstract: the european integration process –which may be interpreted as a federalizing process– faces strong cultural and economic resistances. as a matter of fact, social rights have been understood and performed –within an old tradition of political thought– as proximity rights that cannot be universalized beyond the context of national states; this led to the resistant ideology of the protective function of state borders. therefore it seems that the construction of the european union as a complete political subject cannot be developed further if a centralized european welfare is not created. keywords: nation-state crisis; social rights; european federalizing process contents: i. sovereignty crisis and european constituent process; ii. stagnation of the constituent process and crisis of welfare systems; iii. the issue of social rights; iv. concepts of market and social rights; v. sovereignty, protective function of boundaries, european constituent process; vi. end of national sovereignty and triumph of universal democracy? i. sovereignty crisis and european constituent process the crisis of the nation-state and, consequently, of state sovereignty, can be observed in the light of the most powerful and controversial of its factors in this part of the world: the european integration process. the latter follows the path from treaty to constitution. the analysis of the crisis of state sovereignty and of the european phenomenon from such a point of view is not a neutral choice, because it forces to take a stance on divisive issues: that a constituent process (which can be defined, according to a certain point of view, as federal, in one of the manifold possible realizations of federalism) is taking place; that therefore such a process is not completed yet, because it is not possible to affirm that europe already has a constitution in the proper sense (which 1 professor of constitutional law. università di napoli federico ii, italy (sandro.staiano@unina.it) the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 26 does not mean that it lacks a constitutional system, and which in any case encourages to draw up a concept of constitution able to maintain consolidated categories, but also useful to position them in the great ongoing transformation); that the completion of such a process is possible (and thus that it is not fundamentally prevented by impeding factors, such as the “absence of an european demos”); that it is desirable (the controversy on european “technocracy”, based on a very specific and restricted concept of democracy, is well known); that, in compliance with the true essence of constitutionalism, this process must consist in a stronger limitation of power and in a broader protection of rights. in relation to all these points, there are ideologically-characterized positions and fears within individual states, while powerful counter-actions are prepared. in this transition, which has emerged with indeterminate results (the very idea of europe has been jeopardized by a persisting economic crisis with partly unprecedented characteristics), there are other sources of complexity: the reaction to the lack of achievement of an european constitutional charter; the effort to provide deflationary state policies with a constitutional ground (in addition to treaties), exerting an unprecedented pressure on social rights; in connection with this, constitutional precedents such as the german, dissonant with the “european constitutional logic” and fitting the “treaty logic”. a further source of complexity concerns the possibility for the eu to join the european convention of human rights, although it is a source of a positive complexity, such as the one that arises from the now possible construction of a “constitutional” problem, which lies before the political community as well as the lawyers’ community in europe. ii. stagnation of the constituent process and crisis of welfare systems it would be an unwise abstraction not to consider that the efforts to create the “constitutional treaty”, and their failure, have been accompanied by a crisis of welfare systems, and have been followed by a broader economic crisis characterized by distortions in financial markets. we must take this into account to understand why, after the referenda in france and in the netherlands, it has been necessary to rule out “recovery” attempts in the forms provided by declaration n. 30, attached to the constitutional treaty 2 : the possibilities offered by such a provision were immediately 2 treaty establishing a constitution for europe, rome, 29 october 2004, final act, declarations concerning provisions of the constitution, 30: “the conference notes that if, two years after the signature of the treaty establishing a constitution for europe, four fifths of the member states have ratified it and sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 27 jeopardized by the “freezing” of ratification processes in various states, starting from the united kingdom (and without even getting to the point of considering the issue of the effectiveness of a declaration attached to a not yet ratified treaty). similarly, the proposal to build a “two-speed europe” 3 , on the grounds of arts. 43 and 44 of the union treaty 4 , failed to get a foothold. when put to the test, the institutional tools prepared to face the difficulties of the ratification phase, which were predictable also on the grounds of the experience concerning the setbacks in the integration process, proved to be inadequate in the face of the tension – already detectable in the past, but now heightened by the economic contingency and the coincidental “enlargement” of the union – between levels and methods of protection of “civil” rights (or rights “corresponding to duties of justice”) and “social” rights (or rights “corresponding to duties of material aid”) 5 . social rights – for well-established and ancient historical and cultural reasons, rooted in the deepest strata of the western legal experience 6 – are rights defined “by proximity” (within the family, the community, the state), and, in the nation-state experience, they are understood in relation to the guarantees established for them by boundaries, in the “protective” 7 function that is ensured by boundaries. civil rights, on one or more member states have encountered difficulties in proceeding with ratification, the matter will be referred to the european council”. 3 a position repeatedly expressed by habermas, j. (2005) la creazione di un’identità europea è necessaria e possibile?, in l’occidente diviso, roma-bari, pp. 53ff., and, with reference to the following lack of ratification of the constitutional treaty, habermas: «gli stati-nazione rimangono protagonisti ma devono cambiare la loro immagine di sé», interview by n. vallinoto, in il corriere della sera, 25 marzo 2007, where criticism is expressed towards “a model of europe as a convoy whose pace is established by the slowest vehicle” (“modello di europa quale convoglio il cui incedere è determinato dal mezzo tra tutti più lento”). 4 see arts. 43 and 44 of the treaty on the european union as modified by the treaty of nice, 26 february 2001, art. 1, nn. 11, 12 e 13. 5 referring to the terms used by nussbaum, m.c. (2000) duties of justice, duties of material aid. cicero’s problematic legacy, in journal of political philosophy, 8, pp. 176ff., trad. it. giustizia e aiuto materiale, bologna, 2008, may shield our analysis from the constraints of the controversial distinction between civil and social rights, assuming a meaning of the two poles of such a conceptual couple which suggests its persistent usefulness. 6 nussbaum (2000) –examining the issue firstly from the point of view of duties, looking for a theory of duties of material aid aimed at the “fair exchange among nations”– observes the construction of the asymmetry between duties of justice and duties of material aid, in a complete form, already in cicero’s de officiis, and highlights the persistent influence of this work in the entire “western philosophical and political tradition”, up to contemporary justice theories, also through “kant’s analysis on cosmopolitan duties” (with respect to “kant’s debt to cicero”, cf., by nussbaum, m.c. (1977) kant and stoic cosmopolitanism, in bohmann, j. (ed.) perpetual peace, cambridge, pp. 25ff.). the approach suggested by m.c. nussbaum recalls an important cultural factor of strong resistance to the european integration process. this approach is here considered outside the well-known debate on cosmopolitanism and globalization processes; about these topics, see the useful reconstruction of camerlengo, q. (2007) contributo a una teoria del diritto costituzionale cosmopolitico, milano. 7 some studies on welfare systems – state-centered studies clearly owing to rokkan’s theories – support an interpretation of europeanization (and globalization) processes in the light of the concept of “boundaries”. they identify a hard to diffuse tension between the “sharing of social rights”, built on «closure» mechanisms – assuming the existence of a clearly demarcated and cohesive community, whose the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 28 the other hand, can be extended, universalized, without renouncing national cohesion within boundaries, because states can negotiate their guarantees, also by establishing supranational jurisdictional bodies. therefore, the hypothesis is the following: the universalization of civil rights may continue in a treaty logic; the universalization of social rights cannot be carried out outside of a complete european constitutional order, in a welfare system that is uniform and highly centralized (from an european point of view), where boundaries, in their protective function against the erosive power of asymmetries and diseconomies deriving from the new globalization, are instead those of europe (and the extension of such boundaries, the modalities of their formation and the relation of the new order with the very concept of nation-state would present in new and unexplored ways the issue of material justice in the light of the distribution of global wealth and of a new equality paradigm, as a transnational principle). moreover, because the standards of protection of social rights in individual states are challenged by the integration process, the latter is especially hindered by the issue of social rights. before this issue, the expansive and constructive force of european constitutional case-law (so far for the most part virtuously and effectively carried out by supranational courts and constitutional judges of individual countries, also thanks to the stimulus provided by ordinary tribunals, in a coherent network) is destined to fade out. this is the fundamental reason why the establishment of the principle of indivisibility of rights – at a time where its inclusion in the constitutional treaty through the charter of nice, and the subsequent recognition in lisbon that the charter and the principle established therein have the same value of the treaty 8 , was being members feel that they belong to the same whole and that they are linked by reciprocity ties vis‐à‐vis common risks and similar needs – on the one hand, and european integration, which is instead based on “opening... on weakening or tearing apart those spatial demarcations and closure practices that nation states have built to protect themselves” (ferrera, m. (2005) the boundaries of welfare, oxford, p. 2). from this point of view, in the european integration process the “spatial architecture of social citizenship, that is, the territorial reach of solidarity, the identity of its constituent communities, and, last but not least, the ultimate source of legitimate authority for the creation and the enforcement of rights” is at stake (ferrera (2005) p. 51). this is a difficult process, from a cultural as well as a political point of view, if it is true that one can still support the idea of “a human right to boundaries, and to boundaries protecting men from each other as well as allowing them to freely and securely carry out a self-determined life” (kersting, w. (1998) einleitung, in kersting, w. and chwaszcza, c. politische philosophie der internationalen beziehungen, frankfurt, p. 62). 8 treaty of lisbon amending the treaty on european union and the treaty establishing the european community, lisbon, 13 december 2007, art. 6, §1: “the union recognizes the rights, freedoms and principles set out in the charter of fundamental rights of the european union of 7 december 2000, as adapted at strasbourg, on 12 december 2007, which shall have the same legal value as the treaties”. sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 29 considered – can be seen as a “spectacular” 9 innovation. such a principle, by linking the two spheres of social and civil rights (historically more than conceptually separated) programmatically raises the issue of the universalization of social rights, and thus of the very possibility of an european constitution. iii. the issue of social rights the issue of the universalization of social rights and its tension with the integration process, if used as a reference point while considering the path from the treaty to the constitution, highlight some questionable stances which have confronted each other in the analysis of the european phenomenon. on the one hand, they undermine negationist theories, which expect to apply the post-revolutionary, analytical paradigm of modernity to current transformations, and to constrict constitutionalism in the political representation circuit, assuming that this will lead from the demos to parliaments. moreover, such theories experience constitutional jurisdictions – especially supranational – as inappropriate deviations. consequently, they consider europe as a land where animalistic, dominant and uncontrolled market forces are unleashed, with law inevitably subjugated to them. such is the thesis of “democracy in one country”, of “national paths to constitutionalism”. however, the problem of fundamental rights and of their jurisdictional protection also against the malfunctioning of the representation circuit, by containing the concentration of power deriving from the affirmation of democracy by appointment and from the domination of national executive powers, reveals that its weakness lies in the theoretical categories adopted. on the other hand, the abovementioned issues undermine the voluntarist rhetoric whereby every setback in the integration process is a cultural disagreement, a regional delay, a strategic deficiency with narrow scope. by refuting these assumptions, they pose once again the issue of the union’s “foundation”, because the asymmetry in the universalization process reduces the prospect of a whole european order whose essence would consist in the “indivisible” guarantee of rights. the most typical feature of the european constitutionalization process, indeed, consists in its resistance to one of the most enduring paradigms of the history of legal thought, which grounds the concepts of nation-state and of state sovereignty and, in connection with this, the concept of citizenship as belonging-subjection: the paradigm whereby, in its most organic and structured formulation, every political entity stems from the appropriation of a land, from which every order moves along, a radical title from which all other relations, of 9 ziller, j. (2003) la nuova costituzione europea, bologna, p. 17, and pinelli, c. (2003) la carta dei diritti, la cittadinanza, la vita democratica dell’unione, in bassanini, f. and tiberi, g. (eds.) una costituzione per l’europa, bologna, p. 37. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 30 possession and of ownership, public and private, and every social and international right 10 , are derived. moreover, it is through conflict, always “rather tumultuously” 11 , that land occupation is achieved. the progressive formation of the european constitutional order deviates from this model, from the “archetype of a constitutive legal process” 12 , due to its peculiar traits: “non-discontinuity” in its relations with states, because the formation of the european order takes place according to law, and not trough ruptures consisting in absolute, self-legitimated and sovereign acts 13 ; independence in its grounds from a demos identified through cohesion factors referring to a primordial, original and eternal ground, raised to a “national conscience” into which blood, soil and cultural ties merge 14 ; grounds which lie instead in the common constitutional traditions and in the deriving judicial production of law. 10 “in some form, the constitutive process of a land-appropriation is found at the beginning of the history of every settled people, every commonwealth, every empire... not only logically, but also historically, land-appropriation precedes the order that follows from it. it constitutes the original spatial order, the source of all further concrete order and all further law...all further property relations –communal or individual, public or private property, and all forms of possession and use in society and international law– are derived from this radical title”: schmitt, c. der nomos der erde im völkerrecht des jus publicum europaeum, köln, 1950 and then berlin, 1974, english translation (from the 1974 edition) the nomos of the earth in the international law of the jus publicum europaeum, new york, 2003, p. 48. the “resistance” and the diffusion of this approach in the conceptions of nation-state is not undermined by the –instead very controversial– idea that carl schmitt develops from it in relation to the identification of the nòmos in the “legal order” rather than in the “norm”, in contrast with what he defines as “the presumption of an exclusive prevalence of a keynesian “abstract normativism” (see schmitt, c. (1934) ueber die drei arten des rechtswissenschaftlichen denkens, hamburg, trad. it. i tre tipi di pensiero giuridico, in miglio, g. and schiera, p. (eds.) (1979) le categorie del “politico”, bologna, pp. 247ff. note 3); he declares to share this idea with santi romano (in his book l’ordinamento giuridico, p. 260), even if he considers the “terminological and conceptual component of “legal order” as not any more belonging to “the useful combined terms, because it can be used to hide the difference between a thought based on rules and a thug based on the legal order” (schmitt (1934) p. 251). in fact, the concept of “birth of a nation” with the establishment of a boundary is, to a certain extent, independent from constructions “based on an actual order” or “institutional” or, in an extreme sense, “decisionists”: and this degree of independence supports its persuasive strength. 11 schmitt (1950) p. 46 “... at times, the right to land arose from overflowing migrations of peoples and campaigns of conquest and, at other times, from successful defense of a country against foreigners”. 12 schmitt (1950) p. 47. 13 see fioravanti, m. (2005) il trattato costituzionale europeo: una nuova tappa del processo costituente in europa, in vacca, g. (ed.) dalla convenzione alla costituzione. rapporto 2005 della fondazione istituto gramsci sull’integrazione europea, bari, p. 108; and, on the “impossible tabula rasa”, ziller (2003) la nuova costituzione europea. 14 the contrast between “people’s nation” (volksnation) and “citizens’ nation” –with the latter distancing itself from the historical experience of the nation-state– can be found in habermas, j. (1998) una costituzione per l’europa? commento a dieter grimm, in l’inclusione dell’altro, milano, p. 171. sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 31 the “grounds”, therefore, lie in judicially-sanctioned legitimacy: the law produced by judges derives from the people – from european people – because judicial bodies can be considered as democratically legitimized; indirect legitimacy, mediated by law and by the subjection of judges to it, irrespective of the modalities of their formation. judicial law-making builds the basis of the constitutional guarantee of rights, in which citizens identify themselves thanks to the strong links with constitutional traditions common to the european context. legitimacy acts as a limitation to power, vis-à-vis politically representative authorities, but the essence of constitutionalism lies precisely in limitations of power, in the form in which it occurs. and yet, this is a form of “progressive” legitimacy: it is not possible to maintain that a judicially-built european constitution, with courts in charge of its protection, has been established. judicial law-making is the propelling force pushing towards the constitution; but the final result cannot be reached without a fundamental political decision able to solve the issue of the asymmetry between civil and social rights and of their different possibilities of universalization, which cannot be faced with judicial techniques – no matter how refined by experience. this issue cannot be judicially solved because it involves the characters of the welfare state in europe, posing the problem of a new paradigm of equality on which to build a framework of constitutional rules inspired by a vision of economic relations according to a principle of justice (justice in relations among individuals and among different parts of the world). and, according to these principles, it is necessary to build an organization of public powers at european level, severing the subordination ties with states. it is thus a matter of creating constitutional parameters through political decisions, binding and guiding judges, who cannot move beyond the current acquis communautaire on the sole basis of their creative power; without this, the european constitution risks to lose ground every time states experience economic turmoil. if, programmatically, this working hypothesis is accepted on a methodological level (imposing a tight and permanent integration between the historical and the “positive” legal approach), it would be possible to consider in a less ideological light the experience of social rights in europe and of the whole integration process itself, seen as a to-be-completed constituent process. iv. concepts of market and social rights it is well known that a considerable part of scholars has often adopted a dissenting stance, strongly critical of europe’s “founding fathers”, building the tòpos of the “social frigidity” 15 of the constitutive treaty. 15 this expression was coined by mancini, g. f. (1988) principi fondamentali di diritto del lavoro nell’ordinamento della comunità europea, in the conference proceedings on il lavoro nel diritto comunitario e l’ordinamento italiano, held in parma, 30 and 31 october 1985, padova, p. 33. widely the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 32 actually – if one rejects the theory of the “duplicity” of the “founding fathers”, as creators of welfare systems in their respective countries but at the same time uninterested in the guarantee of social rights in europe, considering this as an “historical mystery” 16 – it is necessary to recognize the original idea and aim: to build an european, open market, leaving the “social sovereignty” of states in its own national boundaries, where welfare systems were being built, and where social rights constituted the object of post-war constitutions which, in different forms, had guaranteed them by creating compendiums where they were established as principles. the opening and the integration of markets – in the expectations of the framers of the european order – would promote and imply the progressive harmonization of social systems towards the highest levels of guarantee 17 . the idea of a market based on perfect competition as a direct and autonomous regulator of social order was unknown to the “founding fathers”. the “fixed social fund dogma” 18 , whereby it is possible to assume that salaries and occupational levels depend exclusively on the competition on the labour market and on the dynamics of the economic cycle, and through which the ideology of the selfregulating force of the market is established, was unknown to the cultural references which inspired them. the market is instead embedded 19 – structured, built – in social and legal conditions and rules which make it possible 20 . and these rules are not generated by the market; nor can the market organize itself 21 . recalled and accepted, it was re-used by its creator in different times, although against a different historical background and notwithstanding divergent analytical and reconstructive contributions. it is also possible to find it in mancini, g. f. (1995) regole giuridiche e relazioni sindacali nell’unione europea, in aa.vv., protocollo sociale di maastricht: realtà e prospettive, roma, e in mancini, g. f. (2004) l’incidenza del diritto comunitario sul diritto del lavoro degli stati membri, in democrazia e costituzionalismo nell’unione europea, bologna, pp. 259ff. 16 allegretti, u. (2004) i diritti sociali, in i diritti fondamentali e le corti in europa, seminario luiss (libera università internazionale degli studi sociali), 21 maggio, paper. 17 in opposition to the “social frigidity” tòpos, a “strong «social empathy» of the founding fathers” was thus observed, notwithstanding the “«misery» of the provisions” of the treaty of rome: giubboni, s. (2003) diritti sociali e mercato. la dimensione sociale dell’integrazione europea, bologna, pp. 44ff. 18 for a critical stance on such a “dogma”, see mingione, e. (1997) sociologia della vita economica, roma, spec. pp. 84ff. 19 on this concept, the fundamental reference is polanyi, k. the great transformation: the political and economic originins of our time, farrar & rinehart, new york, 1944 and beacon press, boston, 2001, trad. ital. la grande trasformazione. le origini economiche e politiche della nostra epoca, torino, 1974. 20 the “founding fathers”, actually, worked in the context of a complex set of relations in the economy and in the legal order which, contrary to the “economic nationalism” of the 1930s, has been defined as “embedded liberalism” by ruggie, j. g. (1982) international regimes, transactions, and chenge: embedded liberalism in the postwar economic order, in international organization, vol. 36, n. 2, passim and 393. and they were well aware of their time. 21 gathering some elements from the analysis of the events “in the half century between 1879 and 1929”, polanyi highlights the “destructive tensions” deriving from the self-regulatory claims of the market, observing that as soon as the mechanism of the self-regulating market was started, its impact on society was so violent that almost instantly and without any previous change of opinion, powerful protective reactions were set in motion. he observes: “...social history in the nineteenth century was thus the result sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 33 the idea of a market as the result of a series of atomized relations, of a market based on the postulation of perfect competition, which generates “allocative efficiency and maximization of the general well-being”, working “without any prolonged social and human contact between two or more parts”, where “there is no place for bargaining, negotiation, complaints and reciprocal settlements” and where “the various operators bargaining with each other do not need to enter in recurring and continuous relationships after which they would get to know each other well” 22 , such a market does not exist, or at least it does not exist in its assumed purity, and is mostly an ideological abstraction 23 . it is not, however, the market which the “founding fathers” had in mind. nor did they believe social contexts and legal rules to be the by-product of the market (which tends to be, instead, the neo-classical approach): such a view, in case its divisive potential had been overlooked, would have prevented from understanding phenomena such as the regional diversities of productive systems and social exclusion, from preparing appropriate counter-policies, which are instead a characteristic of the european order in its most developed stage, and the establishment of “fourth generation” rights in the charter of nice and subsequently in the treaty of lisbon. it would have prevented the understanding of dynamics and characters typical of welfare systems (as it prevents today the understanding of the features of the new globalization, ad of its influence in the european space): and instead, precisely as “welfare creators”, the “founding fathers” had it very clear that the market is a construction, not a “natural” of a double movement: the extension of the market organization in respect to genuine commodities was accompanied by its restriction in respect to fictitious ones. while on the one hand markets spread all over the face of the globe and the amount of goods involved grew to unbelievable proportions, on the other hand a network of measures and policies was integrated into powerful institutions designed to check the action of the market relative to labour, land, and money. while the organization of world commodity markets, world capital markets, and world currency markets under the aegis of the gold standard gave an unparalleled momentum to the mechanism of markets, a deep-seated movement sprang into being to resist the pernicious effects of a market-controlled economy. society protected itself against the perils inherent in a self-regulating market system--this was the one comprehensive feature in the history of the age” (polanyi, k. (1944) chapter 6).the risk for society inherent to the utopian principle of a self-regulated market is therefore a historical evidence (polanyi (1944)). 22 hirschman, a. o. (1987) l’economia politica come scienza morale e sociale, napoli, p. 87. 23 the “«deviations»” from the ideal competition model are “frequent and important”, and nonetheless “economists who are favourable to the market...have frequently...minimized these deviations from the ideal competition model, in an effort to present the reality of an imperfect competition as very close to the ideal one. by doing so, they have made an effort to provide the market system with economic legitimacy. but, at the same time, they have sacrificed the sociological legitimacy which could have been rightly asked due to the way in which, differently than the perfect competition model, most markets work in the real world. only recently economists developed a certain number of approaches which no longer consider the deviations from the competition model as sinful or unimportant ...” hirschman (1987) [translation mine]. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 34 phenomenon, and a construction founded on largely legal rules, and whose development is shaped by legal rules 24 . the logic of a legal construction of the market 25 – adopted by the “founding fathers” – actually constitutes the ground for the legal technique and the content of the treaties in their original form. if the goal is to regulate the markets, so as to guarantee the full autonomy of member states in the discipline of working conditions and in the definition of social protection systems 26 , the same principle of competition, which is nonetheless a cornerstone of the order prepared for europe, must be limited whenever it can result in forms of social dumping, that is, when it forces states with higher levels of social protection and wages to downward chases of states where these standards are lower: such is the framework of the ceca treaty 27 . moreover, in the treaty of rome, policies aimed at supporting the living standards of rural populations were pursued through market control as well as the limitation of competition; in the meantime, in the field of social security, measures of 24 economic liberalism, understood as self-regulation of the market, is historically incapable of hindering forces pushing towards the dissolution of social orders, even when its ideological power is at its fullest, because “the protection of men, of nature and of the productive order” always means “an interference in the labour market and in that of the land” as well as in the money market, damaging “ipso facto... the selfregulation of the system”: it is possible to say that this issue, that polanyi attributes to the time between the end of the xix century and the great depression of 1929, is recurrent in the observation of the economic phenomenon ( polanyi (1944) p. 275). 25 the “founding fathers’” idea, where the consciousness of the necessary character of markets and the inescapable need to face its “shortcomings” and “failures” are reconciled, is extremely relevant even today, in a historical period where the “intellectual rejection of the market mechanism”, which led to “radical proposals”, has been followed by a “dramatic” change of climate and “the tables are now turned. the virtues of the market mechanism are now assumed to be so pervasive that qualifications seem unimportant. any pointer to the defects of the market mechanism appears to be, in the present mood, strangely old-fashioned and contrary to contemporary culture ... one set of prejudices has given way to another – opposite – set of preconceptions. yesterday’s unexamined faith has become today’s heresy, and yesterday’s heresy is not the new superstition”: sen, a. (1999) development as freedom, oxford university press, oxford, p. 111. 26 the “founding fathers’” stance is, therefore, very distant from the “distortion argument”, whereby “social protection is different from other expenses financed by taxes because not only it costs money, but it also distorts some key economic decisions”, so that “the welfare state is not only too expensive, but it is also the cause of europe’s economic malaise”. such a position “is in some cases developed by arguing that any interference with a market economy distorts decisions; imposes non-zero marginal tax rates; forces us to abandon an homogeneous, common playing field”. a position that “presents a problem”: “it assumes a world of perfectly competitive and balanced markets, a theoretical framework where the issues causing the very existence of the welfare state are absent”: atkinson, a. b. (2005) la politica sociale dell’unione europea nel contesto della globalizzazione, in studi economici, special issue, 26 [translation mine]. 27 see giubboni (2003) p. 49. sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 35 forced harmonization, which could have led to downward chases according to the economic cycle, were ruled out. in sum, a regulation aimed at correcting the spontaneous dynamics of the market in the fields where social costs would be too burdensome was being pursued, while these dynamics were left undisturbed whenever they were thought to support a desirable harmonization. from this perspective, social policies, already on the grounds of art. 51 of the treaty, were kept on the national level; and differences were accepted and assumed, and coordinated only as far as it was necessary in a context where the guarantee of freedom of movement for workers and freedom of establishment were being pursued 28 . hence, the “founding fathers” were not affected by any kind of social indifference, nor did they aim to support and protect the “natural” market dynamics; if anything, they harboured the utopia of a natural, upwards harmonization of welfare systems in accordance with the european context. a virtuous utopia, because it introduces a mitigating factor of inequality, supporting the overcoming of imbalances and diseconomies, in the european integration process. an utopia nonetheless, because the deterministic faith in the certain achievement of the expected aims thanks to the implementation of a “first static engine”, able to start an infallible mechanism, is illusory. such a natural upward harmonization of social systems, indeed, does not occur in the concrete historical process: it is, rather, a conflicting result, achieved in stops and starts, and exposed to throwbacks. experience suggests that the biggest obstacle to the achievement of that original objective is the difficulty of regulation due to the inefficiency of decision-making processes inspired to the logic of the treaties (unanimous decisions according to the modules of the intergovernmental method). it is, in sum, a matter of constitutionalization deficit, not considered by the “founding fathers”, which distances the integration process from the historical premises that they had envisaged. the events surrounding the treaty confirm this tendency to the oscillation towards solutions eroding both the national paths to welfare systems and those policies aimed at favouring the expansion of social protection mechanism, in the absence of a codification of european constitutional principles which individual states and the community’s decisional bodies would have to comply with. with maastricht, from the point of view of the threshold imposed to public deficit and to inflation rates and with the resulting significant limitation of independent macroeconomic national policies, the “flexibility” of social protection systems is established as a value, as an expression of “modernity”, vis-à-vis the old, bad habit of deficit spending in individual states. thus, the “maastricht spirit” still lingers in europe, surviving the modifications to the treaty. it does so in the inflexibility of the “stability pact” as a tool of constraint and control on economic and financial choices. 28 giubboni (2003) pp. 69ff. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 36 and it is reinforced by the implementation of the “mutual recognition” 29 model, where a glimpse of the self-regulating market is observable 30 together with the tendency to the erosion of national guarantees offered by national welfare systems. in this context, the resistance of boundaries in their protective function is at issue, with the principle of the application to workers of the law of their country of destination, with the ruling out, from a legal point of view, of the principle of exportability for social assistance benefits or for non-contributory benefits in general, with the national control on many social citizenship benefits. this is a limit to deregulation, to the freedom of action of the market. however, it is a weak limitation if its function is to guarantee the current levels of social protection in individual states, precisely because in individual states the direct public provision of services takes a step back: the producing state gives way to the regulating state. only when the “logic of the treaty” is weakened, giving way to the “logic of the constitution”, the tendency to deregulation is efficiently moderated as well: the affirmation of the majority vote and the creation of eu-level rules in the social field lead to a level of protection which is superior than those of the most advanced national systems 31 . when this occurs, boundary recede; not any more by leaving full scope for social dumping, but rather by allowing for higher levels of guarantee, pursuant to the key principle of the indivisibility between civil and social rights. therefore, these two forces on the european scene – on the one hand the selfregulation of the market, pushing on the standards of guarantee of social rights within national boundaries incapable of preventing, in the logic of the treaty, phases of significant erosion, and on the other hand the setting up of an european system of guarantee of those very rights, in the logic of the constitution – are in perpetual tension, and their mutual affirmation and retreat, also under the influence of the economic cycle, are mostly dependent on the future of the european constitution. 29 the “mutual recognition” principle, whereby any legally produced and commercialized good must be allowed to access the market of the other member states, is rooted in the court of justice case-law, and was extended from the sphere of the free movement of goods to that of the free movement of services and persons by the white paper from the commission to the european council on completing the internal market, 1985, spec., §58. by virtue of the white paper, it is the market, in the competition between systems, to establish the most convenient level of regulation, curbing public interferences. 30 see lo faro, a. (1999) funzioni e finzioni della contrattazione collettiva comunitaria. la contrattazione collettiva come risorsa dell’ordinamento giuridico comunitario, milano, pp. 65ff., who theorizes mutual recognition as a “radical alternative, and not a mere technical variation of the harmonization strategy” and as a “potential drift towards deregulation”, when not “equally employed as a general criterion for the establishment and functioning of the single market” [translation mine]. 31 giubboni (2003) p. 106. sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 37 moreover, at the present time the spirit of maastricht has resumed lingering in a significant way, supported by the claim to include the “budget balance” obligation in national constitutions (quite explicitly expressing the will to impose a vision of economic relations based on development models of individual states where growth is mostly fuelled by exports, generating national closure and, where party systems are weaker and more vulnerable, plebiscitary regressions). in italy, such an obligation has been carried out through an extensive and pervasive reform of the constitution, which has affected not only art. 81 – which now establishes the principle of the “balance between income and expenditures” of the state budget, “in consideration of the negative and positive phases of the economic cycle”, allowing debt only “in exceptional circumstances” – but also art. 97 and art. 199, in order to extend the same principle to all public administrations and local governments, as well as art. 117, in order to make the “harmonization of public budgets” an exclusive competence of the state. any doubts on the conforming force of these innovations would be dispersed by the observation of art. 5 of the constitutional law n. 1 of 20 april 2012, which, by modifying art. 81, has established the content of the new type of law which can authorize debt (a law adopted by the parliament “by an absolute majority for each chamber”: art. 81, paragraph 2) and has affirmed that “exceptional circumstances” under which this can be justified are “serious economic recessions”, “financial crisis” and “natural disasters”. moreover, the “new type” of law n. 243 of 24 december 2012 (“provisions for the implementation of the budget balance principle pursuant to art. 81, paragraph 6, of the constitution”) further restricts the mentioned exceptional circumstances by specifying them, where it establishes that these consist in “times of serious economic recessions also concerning the euro area or the entire european union” or in “exceptional events, beyond state control, including serious financial crises and serious natural disasters, with relevant repercussions on the general financial situation of the country” (art. 6, paragraph 2). moreover, paragraph 3 of article 6 establishes that the resulting “temporary deviations of the structural balance from the planned objective” 32 must be determined “after consultation with the european commission”, on the grounds of a report updating the planned objectives in the field of public finance, clarifying “the nature and the duration of the deviation” and establishing “the goals towards which available resources must be channelled”, as well as defining the “re-orientation plan towards the planned objective, making its duration proportional to the seriousness of the events”. such a rigour is explained by the tendency of the italian system to strictly conform to the obligations imposed by the european union. the europlus pact of 11 march 2011 (not binding from a strictly legal point of view, but considered as a 32 translation mine. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 38 commitment because it was signed by heads of state and prime ministers in the euro area, thus affecting their international credibility) already established an obligation to insert in constitutions or national laws the rules of the stability and growth pact (individual states were allowed to freely choose the form as far as the discussed rules were binding both at national and at sub-national level). then, directive 2011/85/eu established an obligation to adopt rules concerning the formulation of budgets and monitoring mechanisms, aimed at ensuring the correction of excessive deficits of states in the euro zone. with law n. 114 of 23 july 2012, italy ratified the treaty on stability, coordination and governance in the economic and monetary union (fiscal compact), that entered into force on 1 january 2013. it is this treaty that establishes the duty to introduce in individual states, preferably through constitutional laws, the obligation to maintain balanced budgets or budget surpluses, controlling structural deficit, in accordance with the specific mid-term objective for each state of a yearly improvement of the corrected budget balance for the cycle amounting to more than 0,5% of the gnp, when the national debt is over 60%. deviations from the mid-term objective are allowed only temporarily, in exceptional circumstances, in case of unusual events that the involved state cannot control and that could cause significant repercussions on the financial situation of the public administration, or in times of serious recession. in any case, however, the deficit must not undermine the sustainability of the mid-term budget. state parties are bound to initiate automatic correction mechanisms in case of significant deviations from the reference value in the relation between the national debt and the gnp, and are obliged to implement corrective measures within a specific deadline. against this background which defines the context and clarifies the rationale of the mentioned reforms to the italian constitution – it is possible to notice not only the will to prevent deficit spending policies in all cases, but also the unrelatedness, even more than the explicit aversion, to keynesian economic cultures, together with an inspiration towards theories which claimed to provide pernicious relations between debt and gnp above a certain threshold with an “irrefutable scientific basis” (only to then observe that some theoretical conclusions are not at all inevitable and even that certain analytical results were based on trivial material mistakes during the use of computer programmes 33 ). 33 this is very well epitomized by the case of the analytical hypotheses and the theoretical assumptions of carmen reinhart and kennet rogoff, harvard economists, according to whom when the debt is higher than 90% of the gnp, economic growth becomes too low (reinhart, c. and rogoff, k. (2010) growth in a time of debt, working paper 15639, cambridge, http://www.nber.org/papers/w15639). this theory has met wide consensus, and was considered also in a political context as “the economists’ view”: an irrefutable statement, a starting point to define any serious economic policy. however, these assumptions http://www.nber.org/papers/w15639 sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 39 the spanish constitutional framework is very close to the italian: the reform of art. 135 of the constitution of 27 september 2011 established the obligation for all public administrations to conform to the budget stability principle (estabilidad presupuestaria) and the prohibition for the state and the autonomous communities to incur in a structural deficit above the threshold established by the european union. france, whose law of constitutional reform n. 2008-724 of 23 july 2008 had inserted the “budget balance in public administrations” objective in art. 34 of the constitution, did not deem appropriate to update the constitution, even after the ratification of the fiscal compact treaty, and rather chose the tool of an organic law to regulate the determination of mid-term objectives of the budget of public administrations and of the yearly structural and effective balance, the corrective mechanisms in case of deviation of public finances from the programmed objectives, and the institution of a monitoring body (haut conseil des finances publiques). with different degrees of resistance, individual countries have conformed with the strict approach adopted in germany, putting to the test the structural characters of their economic and welfare models. v. sovereignty, protective function of boundaries, european constituent process moving beyond boundaries and thus beyond state sovereignty – potentially not compromising the levels of protection of social rights with rejection effects that could jeopardize the very perspective of european integration – is, then, implied in the european constitutionalization process. this is partly due to the conflicting events surrounding the conventional legal sources. it is however mostly imputable to the court of justice work, which impacts on are far from generally accepted in the scientific world. equally authoritative and convincing theories identify (using the same data submitted by reinhart and rogoff) some negative relation between high debt and economic performance, but not a 90% threshold over which a significant relation between debt and low growth would be identifiable. in some cases – observable and actually observed – this relation is actually inverse: in 1990, japan collapsed in a serious condition of debt only after the plunge of its growth. moreover, other economists have questioned the completeness of the data used to maintain such hypothesis as well as the use of an unusual and questionable statistical procedure. furthermore, an encoding mistake has been found in the use of excel (see krugman, p. 2013) the excel depression, in international herald tribune, 20-21, p. 7). in sum, unfortunately certain circumstances generate beliefs ascribable to scientism which, due to their conformity with contingently dominant ideological positions, are used as a basis for economic policies destined to generate economic depression (and to erode the systems of protection of social rights). the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 40 the very nature of the treaties, transmitting them characters of constitutionalization 34 , in a dynamic phase and in part independently of the not always consistent results achieved in the political context and of their alternating successes and failures. it is the judicial formation of constitutional law that questions the exclusive and protective function of national boundaries; and it is against it that the strongest objections arise. however, in this general context – with a previously unseen magnitude, considering that it involves the very concept of law creation and undermines the distinction between civil law and common law systems – the issue of social rights remains a pitfall. among supranational courts, indeed, approaches effectively protecting the freedoms of circulation are being established, but the techniques used to balance with social rights – even if they appear possible and have become habitual after amsterdam (and the albany judgment) – are affected by a fundamental limitation: the guarantee of social rights is still indirect, because it is established as long as the protection of social interests is involved by the pursuit of social objectives assumed as priorities within the european union (thus, social rights can hardly be considered as subjective positions that can be directly justiciable). in this feature, an overturned perspective has been observed in comparison with national constitution models, especially with the italian 35 , whereby the centrality of the protection of the individual actually arises from the guarantee of social rights, and to that protection the action of public powers is subordinated in its pursuit of social objectives. however, the italian constitutional model of guarantee of social rights precisely acts within its national boundaries; in comparison, the european model is reversed, because it stops before national boundaries. a change of perspective could only occur if a common statute of fundamental rights were established at european level, as a constitutional principle able to impose compliance by creating a correspondence between social rights and “material aid” duties. this central and unavoidable issue persists, also (and perhaps especially) when considered in the light of governance models, based on “promotional law”, in which there is the expectation to move beyond the limitation of the harmonization of the national social legislation. 34 an outcome deemed “revolutionary”, although “quiet”, by weiler, j. h. h. 1994) a quiet revolution: the european court of justice and its interlocutors, in comparative political studies, pp. 510ff. 35 in this sense, while commenting on art. 136 of the treaty after amsterdam, see luciani, m. 2000) diritti sociali e integrazione europea, in politica del diritto, n. 3, especially p. 379, where it is observed that “in the constitutional model, social rights are understood as the premise and the aim of public powers... the constitutional protection is, in any case, directly aimed at rights while the social interests is only indirectly achieved, thanks to the fulfilment of the former” [translation mine]. in the context of the community, on the other hand, social interests “presented as objectives” are directly protected by the treaty, whereas “rights remain in the background and the possibility for their fulfilment is connected to the need to realize social objectives”, resuming their “reflexrechte status” [translation mine]. sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 41 we could consider the case of the open method of coordination (omc) 36 . the method is based on the idea of a soft law realized in mediated political decisions, with shared objectives, made “reasonable” by “technical” indicators (ultimately, the control on such a “reasonableness” could be carried out by the court of justice 37 ). aside from the fears that the omc may erode the social acquis communautaire, “based on hard rules and in any case considered, despite its fragility, socially healthy” 38 , it is not completely clear what kind of relationship should exist between the omc (“promotional”) rules and those of protection of fundamental rights: the latter should be understood as an “a priori ... reference framework influencing the very structure” of the omc , or as a “corrective ... a posteriori” of the omc 39 . such a distinction would be quite relevant with respect to justiciability in cases of infringement of subjective positions implied by policies in individual states, if the omc were explicitly mentioned by the treaty as a regulatory model to be respected by community and national authorities: the decisions of the former, aimed at the differentiation of interventions according to the peculiarities of each national order, would put the provisions of the treaty closer to the decisions of individual states, using the treaty as an integrated normative standard. however, if that were the case, the omc could be hardly related to the soft law framework; rather, it could function as a guideline principle, so as to offer a wide spectrum of interpretative possibilities, but it would not be possible to reduce it to a mere orientation criterion, entrusted to voluntary implementation mechanisms and sustained by merely political incentives. on the other hand, if that were not the case, namely if the omc brought its object outside the scope of regulation, it would be incompatible with the need to protect fundamental civil and social rights; such rights, by their nature, must find – and do find in european constitutional traditions – a foundation and a guarantee in rules imposing themselves at the highest level of the legal order. therefore, the omc could offer, in judicial contexts, elements of comparison in the logic process of interpretation. alternatively, its indications could be translated into hard law, so that the omc would be nothing more than an orderly way of acquisition of factual elements used to ground a legislative decision, but outside of (and before) the strict legal path which leads to such a decision. 36 this expression can be found in the proceedings of the lisbon european council of 2000; the amsterdam treaty defines the omc as a tool of cooperation among states in the field of social policies. 37 furthermore, it is possible to note that – in the complex reconstructive polymorphism observable with respect to the omc – the “indeterminate” and “flexible” character of the rules has been considered as a way to take “the concrete definition of rights [away] from the courts”, whereas according to the results of the legal analysis of judicial systems it is exactly the “disappearance of the strict distinction between creation and implementation” that leads to the judicial formation of law: for the counterintuitive conclusion, see barbera, m. (2006) introduzione. i problemi teorici e pratici posti dal metodo di coordinamento aperto delle politiche sociali, in barbera, m. (ed.) nuove forme di regolazione: il metodo aperto di coordinamento delle politiche sociali, milano, p. 23 [translation mine]. 38 caruso, b. il diritto del lavoro tra hard law e soft law: nuove funzioni e nuove tecniche normative, in nuove forme di regolazione, p. 91. 39 the alternative is problematically submitted by lo faro (1999) pp. 354ff. the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 42 to date, in any case, the omc does not appear to be crucial. even considering it as potentially productive of good results, the omc does not lend itself to generalizations because it applies in the field of social policy; whereas in other areas – where controversies are harsher, as in the case of the right to work – the focus is on flexicurity, namely on a community action based on the orientations of the council pursuant to art. 128 tec. the omc, therefore, being legally weak by inclination if not by definition because it is not supported by a significant system of sanctions, can only temporarily be strong from a political point of view, thanks to the strength deriving from the contingent times, from temporary balances, while waiting for structurally solid solutions. this is particularly true in the recessionary economic stage persisting in many countries of the union and whose nature and possible future developments appear to be unknown: cyclic crisis or renovation and transformation of markets? a crisis that states tend to face (or to be forced to face, urged by the disarticulation of party systems and by the risk of populist detours) within their own boundaries, because the price that governments must pay when they plan to support common strategies at an european level is extremely high (for that matter, also the currently strongest states, which now call for the highest strictness of their counterparts, could temporarily in the past set aside the monetary constraints established in maastricht. the issue of the judicial creation of european law thus remains in existence. with respect to this issue, the criticism against the function of the court of justice, on the assumption that the court establishes and balances values and principles by substituting for a democratic political body, appears to be misleading: this is a very ideological point of view, and because of that it does not consider the concrete features of the ongoing constitutional process: it is inspired by a “sovereignist” conception whereby solidarity among citizens of a constitutional state would be possible only “in the traditional form of people’s cohesion as cemented in the national conscience” 40 . actually, in this unforeseen constituent process the court of justice has assumed the features of a body of constitutional jurisdiction: it tends to create the supreme judicial parameter by extracting it from constitutional traditions, it implements balancing techniques, it redefines processes (see for instance the cases of restriction of 40 this was the critical summary of the “pseudo-sovereign” view by j. habermas, soltanto un sogno può salvare l’europa, in la repubblica, 9 giugno 2005[translation mine]: that was the difficult decade of the “stagnation” of the european constituent process, following the failed attempt to create the “constitutional treaty”; the decade which preceded the current awful period of “constitutional recession” (and of economic recession). sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 43 the decisional scope of the referring judge, as in the wiking case); it determines in sum its own position in the system. the vicissitudes of social rights are a clear demonstration; however, they also prove the impossibility to accept “minimalist” views, which tend to minimize the importance of a constitutional “writing” (and thus to deem as negligible the elimination in the treaty of lisbon of the “symbols of constitutionality”). such views are openly inspired by ordinary practical wisdom: it is believed that the court of justice will continue in any case its work of judicial shaping of rights, free from interferences of allegedly “constitutional” texts, with their flawed content and uncertain drafting. these views constitute the most intense leap of faith in the treaty form and the highest distrust in the constituent process: where there is a treaty, there must not be a written constitution, which would be detrimental because the treaty-supranational judge combination is sufficient to control the excessive role of states and to guarantee rights and freedoms. the “scandalous” social rights shine a light on the illusory character of these constructions. with written constitutional principles, the court of justice – in due time – would be forced to retreat before boundaries, would be crushed by the indeterminacies of the constituent process and would find itself in the fire of a conflict among national positions. in the field of social rights, in fact, it is time to make fundamental choices on the content of the european constitution, because the balancing techniques in the normative system as defined by the reconstruction of common traditions and by treaties are inadequate in front of the great ongoing changes. this is occurring starting from the “third globalization” – the current one – characterized by previously unknown asymmetries and externalities, in a context of abysmal inequalities (the new “failures of the market”). before them, it will be difficult for europe as a whole to remain within its boundaries. the crucial topic of this time, indeed, concerns migration; and in the field of rights – including social rights – it concerns universalization. the matter of the porous character of boundaries overlaps with the matter of its outward shift: with the enlargement towards eastern countries, europe is facing a new source of complexity, which forces it to internal diversification. therefore, the issues are the following: what are the limits to diversification, and according to which justiciable constitutional parameter? is this parameter to be found in common constitutional traditions? as outlined above, the principle of indivisibility was considered as a “spectacular” innovation when, through its incorporation in the charter of nice, it was thought to be introduced in the constitutional treaty, because social rights were the crisis of state sovereignty and social rights the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 44 believed to find an appropriate protection even outside of national boundaries, moving beyond the assumed distance in europe between the degree of protection recognized to them and the guarantee of economic freedoms. however, if we concretely observe individual national systems, we must consider the privatization processes in the field of essential public services, traditionally managed by public companies or by companies with significant public participation, under the assumption of a potential influence of business decisions on fundamental rights. today states, which no longer manage them directly, intervene in these sectors in a regulatory way, creating rules of different hierarchy levels and considering the protection of the very negative freedoms (and precisely by doing so they define new limitations, because these freedoms imply the possibility of a direct activation of guarantees, without the need for normative policies). as far as social rights are concerned, these processes are potentially able to weaken their protection, because the state loses the status of provider of those services, necessarily becoming the regulator of private management. therefore, it can no longer directly guarantee protection standards, and it can only indirectly pursue their conservation or expansion (in more and more difficult conditions: the general tendency is towards restriction): incentive policies, transfer of resources towards weak sectors. and thus the guarantee of social rights becomes indirect beyond what is necessary pursuant to their nature. therefore, in a multi-level framework, the protective function of the boundary re-emerges in constitutional case-law, shielded by national sovereignty. from the point of view of european union law, an expression of this phenomenon is the bundesverfassungsgericht judgment on the lisbon treaty of 30 june 2009. in italy, when it was necessary to define the relationship between the law deriving from the european convention of human rights and the national law, since the european court decisions, undermining the results of the balance between the right to property and the social right to work, maintained the “inviolable” character of the former, the italian constitutional court applied the “interposing parameter” model: echr rules derive from the provisions of the convention as they are interpreted by the strasbourg court, and as such they cannot be called into question; however, since the foundation of their creation in the national system lies in art. 117, paragraph 1 of the constitution, those provisions are substantiated in constitutional judgments concerning ordinary national laws. by doing so, the unmediated intrusion in the national system of supranational law, resulting from the interpretation of the strasbourg court, has been prevented, averting the direct disapplication by ordinary judges of laws believed to be unconstitutional. this is how the resurgence of the protective function of national sovereignty, as it appears in the political area of legislative production, occurred, and this is how a national constitutional judge has re-established its exclusive function of sandro staiano the age of human rights journal, 2 (june 2014) pp. 25-45 issn: 2340-9592 45 control, restating that it is not “identifiable, with specific reference to conventional rules ... any limitation of national sovereignty” (see judgments of 22 october 2007, n. 348 and n. 349; 16 november 2009, n. 311; 30 november 2009, n. 317; 7 june 2011, n. 181); thus, no concessions to a stronger position of the strasbourg court. vi. end of national sovereignty and triumph of universal democracy? the path and the destiny of national sovereignty – in the name of which the great tragedies of european and world history have unfolded, but which, in the developments of modern time, has also characterized the progressive establishment of the guarantee of fundamental rights on the grounds of constitutions of the post-world war ii era – are now open to new and previously unseen developments. sovereignty, subjected to an advanced process of erosion, has not disappeared. nor is it possible to believe that it is destined to do so, at a time when the perspective of new orders, of a new paradigm of the concept of state, of new variations of the issue of equality, is still unclear. the history of social rights in europe epitomizes the complexity of this turn. state sovereignty is still perceived as a guarantee of protection systems: for this reason it disappears and it re-emerges among the stormy waves of the european constituent process. it re-emerges supported by populism and by regressive tendencies, especially in some less consolidated democracies. a harsh confrontation among general conceptions of economy, and among development models, is occurring: a continuation of wars (luckily) through other means, one could say. the condition for avoiding that the extinction, or the radical transformation, of state sovereignty result into the cancellation of the democratic principle rests in the creation of an european constitution, grounded on the guarantee of civil and social rights; in economic policies not oriented according to regional closures; in a political government of europe. it is not at all certain that this will be achieved, because history, just like markets, is not determined by an invisible and inescapable hand. but this is one of the possible solutions that the current crisis is offering. the rights of pastoralist peoples the rights of pastoralist peoples. a framework for their recognition in international law miguel ángel martín lópez1 abstract: pastoralists are one of the most poverty stricken and underdeveloped existing human groups in the world. until now, having remained practically invisible in the eyes of international law, it is desirable to open a debate concerning the recognition of their rights. the ideal situation would be to create a specific category of rights dedicated expressly to these pastoralist peoples. therefore, one can surmise that there are two laws that constitute its essential content: the law protecting their way of life and their access rights to the land keywords: pastoralist peoples, right to development, land tenure, voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security. summary: i. introduction; ii. the protection of pastoralist peoples in existing international law; iii. the fundamental rights of pastoralist communities; iii.1.the protection of a way of life; iii.2. the rights to land of the pastoralist communities; iv. conclusions. i. introduction pastoralists are one of the most poverty stricken and underdeveloped existing human groups in the world. they live off of their livestock and practice itinerate transhumance characterized by constant mobility in search of pastures. normally, since they are members of traditional societies, that transhumance conditions their social and economic organization. although they go about their lives engaged in an activity that has its roots in antiquity, more and more these days, for diverse reasons, their way of life, one already beset with considerable hardship, is seriously threatened. 1 ph. d. international law, university of seville, spain (maml@us.es). the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 83 http://www.fao.org/nr/tenure/voluntary-guidelines/en/ http://www.fao.org/nr/tenure/voluntary-guidelines/en/ mailto:maml@us.es the rights of pastoralist peoples. a framework for their recognition ininternational law they are present all over the world; however, they are found in greatest numbers in central asia and, above all, in africa. in the entire world, it is estimated that there are forty million nomadic pastoralists, of which around twenty-five million are to be found on the african continent. here as well there are some two hundred forty million agro-pastoralists, that is to say, individuals who engage in both areas of production. as they suffer from the greatest consequences of poverty, it is necessary for the institution of law to respond to this situation to preserve and to improve their living conditions2. fortunately, pastoralists all over the world are organizing themselves to take actions to improve their lives3. the human rights council has already started to discuss a declaration on the rights of peasants. the purpose of this declaration is also to cover to other people working in rural areas. in this way pastoralist people are being included. there is interest to grant legal protection for this collective. however, human rights council has so far been addressed to agricultural workers. the work of the human rights council has not focused a great deal of attention of pastoralist needs4. we estimate there should be recognition of the pastoralist rights. precisely, the objective of this research is to determinate the foundation of these rights and proposing, de lege ferenda, more consistent rules, particularly in order to obtain a united nations declarations specifically for the pastoralist rights. in this article, we will try to trace out the principal points of this task. 2 the food and agriculture organization of the un (fao) and its partners have launched (27 apr. 2015) an online knowledge hub for pastoralists, which aims to hosts a knowledge repository, contacts to pastoral networks, and discussion forums for the networks and partnering institutions. it is a database that classifies and provides access to literature on pastoralism, http://www.fao.org/pastoralist-knowledge-hub/en/ (last visited jun 10, 2016) 3 this website offers information on the existing pastoralist regional and sub-regional networks. 4http://www.ohchr.org/en/hrbodies/hrc/ruralareas/pages/firstsession.aspx.,http://www.ohchr.org/en/h rbodies/hrc/ruralareas/pages/2ndsession.aspx (last visited 10 jun, 20010) a/hrc/ac/8/6, nations human council advisory committee, final study of the human rights council advisory committee on the advancement of the rights of peasants and other people working in rural areas, prepared by the drafting group on the right to food of the advisory committee. a/hrc/res/21/19 resolution adopted by the human rights council, 21/19. promotion and protection of the human rights of peasants and other people working in rural areas. the third session of open-ended intergovernmental working group of united nations declaration on rights of peasants and other people working in rural areas will take place from 17-05-2016 to 20-05-2016. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 84 http://www.fao.org/pastoralist-knowledge-hub/en/ http://www.ohchr.org/en/hrbodies/hrc/ruralareas/pages/firstsession.aspx http://www.ohchr.org/en/hrbodies/hrc/ruralareas/pages/2ndsession.aspx http://www.ohchr.org/en/hrbodies/hrc/ruralareas/pages/2ndsession.aspx miguel ángel martín lópez ii. the protection of pastoralist peoples in existing international law until now, having remained practically invisible in the eyes of international law, it is desirable to open a debate concerning the recognition of their rights. therefore, there is sufficient basis to support the needs of this group of humans in the international law in force (lex lata). the advisory opinion on western sahara of the international court of justice underlines clearly the existence of a common saharan law concerning the use of waterholes, grazing lands and agricultural lands. the right of pasture was enjoyed in common by these tribes5. in sum, it is a regional consuetudinary law protecting pastoralist peoples. in the same way, the case concerning the frontier dispute between burkina faso and mali cites treaties providing that rights of use of the nationals of the two states pertaining to farm-land pasturage preserved in accordance with regional customs6. and more recently, the international court of justice in the frontier dispute (burkina faso/niger), sentence of april 13th 2013, has made an express reference to these peoples. the court expresses its wish that each party, in exercising its authority over the portion of the territory under its sovereignty, should have due regard to the needs of the population concerned, in particular these of the nomadic or semi-nomadic populations, and to the necessity to overcome difficulties that may arise for them because of the frontier”7. such references are welcome but are limited and not specific enough. the precariousness and the great degree of poverty in pastoralist communities should motivate, ineludibly constituting a necessity, international law to act and to offer effective protection. however, this supportive protection could be found in the existing legal order. we can make an effort to seek the application of existing law as they relate to the case of pastoralists, which, as we will see shortly, can produce good results. still, concurrently, we consider that it would be opportune and desirable to create rights of its own specifically for this collective. certainly, this creation can be beneficial in that it gives them greater recognition and it enhances their position with greater effectiveness. 5 western sahara, advisory opinion, icj reports, 1975. see paragraph 87 and 136. 6 frontier dispute judgment icj reports 1986, paragraph 116. 7frontier dispute (burkina faso/niger), international court of justice, 16 april 2013, judgment, para. 112, p. 48. “112. having determined the course of the frontier between the two countries (see sketch-map no. 4), as the parties requested of it, the court expresses its wish that each party, in exercising its authority over the portion of the territory under its sovereignty, should have due regard to the needs of the populations concerned, in particular those of the nomadic or semi-nomadic populations, and to the necessity to overcome difficulties that may arise for them because of the frontier…” the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 85 the rights of pastoralist peoples. a framework for their recognition ininternational law by so doing, this new branch would not begin from scratch, at once a great part of that which would be the contents of this law would already be recognised by the international law in force. the labour fundamentally would consist of codification and clarification. in this sense, the first body of legal rules that can cover and have applicability for the pastoralist communities is that one relative to the international law for indigenous peoples. to a large degree, the communities that practice pastoralist belong to a differentiated tribal or ethnic group that traditionally has practiced this activity for a considerable period of time. normally, they constitute a differentiated social group and, in numerous occasions, in a state of exclusion or marginalization. indeed, the definitions that are given to indigenous and tribal peoples for africa usually include these communities. in particular, the task force on this matter created, well over a decade ago, by the african commission on human rights and peoples’ right mention expressly that on the continent this category of peoples is made up by different groups of hunter-gatherers, former hunter-gatherers and certain pastoralist groups, essentially8. international law has been slowly consolidating a body of regulations to protect indigenous peoples and it has expanded considerably in the last few decades. the general assembly of the united nations approved, on september 13th 2007, a universal declaration on these rights, which includes a complete protective policy framework. the international labour organization also adopted in 1989 agreement 169 on indigenous and tribal peoples. there is also recourse on the part of numerous states in their internal legal orders, recognising and regulating these rights. this regulatory body attempts, in essence, to respect the way of life, the worldview and the individual culture of each of these peoples and to protect rights that are so necessary to this end, such as their lands and access to their natural resources. the aforementioned task force constituted by the african commission also makes manifest these ideas and points out expressly that the principal characteristic of said indigenous peoples is the need for their particular way of life to survive, which depend on their access rights to their traditional home range and their natural resources. this is, evidently, the essential core of this right9. 8african commission on human and people’s rights, indigenous peoples in africa: the forgotten peoples? the african commission’s work on indigenous peoples in africa, denmar (2006) iwgia, at 16. see also morir sing oei, manual on the promotion and protection of the rights of indigenous populations/communities through the african human rights system, denmark, iwgia, 9ididem the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 86 miguel ángel martín lópez that also would be said for pastoralist peoples. these points constitute their fundamental preoccupation and they also would be the essential core of the rights which they have been insisting on defending. consequently, international law on this matter could provide much more to pastoralist communities. supposing that, the reality is that, in the specific case of africa and to the contrary in other continents, such as the americas, this right has not found sufficient acceptance, owing to numerous hindrances and reticence on the part of the continent’s states. their internal systems of law in addition have barely welcomed and admitted its injunctions. on the other hand, and despite the anterior reference to the aforementioned task force into whose sphere of responsibility the pastoralist fall, a concrete and complete listing of the peoples who fall into said category is missing. there is vagueness and it is illustrative that this task force in one of its most noteworthy publications describes them as the forgotten peoples. this is the very same one that points out that the indigenous peoples are not only and exclusively of the three previously mentioned categories (hunter-gatherers, former hunter-gatherers and pastoralists) and it takes pains to spell out that not all these groups are from these communities, rather just some of them, which is the expression that has been used10. as so, there is room to think that not all the pastoralist communities fall necessarily into the definition of indigenous or tribal people. it is not a condition of sine qua non to be simultaneously pastoral and indigenous or tribal. this also leads us to understand that it is preferable for there to be a set category of rights for pastoralist peoples and that they do not end up diluted within the general category of indigenous and tribal peoples. it is the best manner to attend to the specificity and singularity itself of pastoralist communities. in addition, by so doing one can overcome the inconvenience of the scarce consolidation that the law still possesses on the rights of the indigenous and tribal peoples on the african continent. certainly, it is very curious to observe how the african commission on human and people’s rights in the only case regarding pastoralists that it has tackled, which was the matter concerning the endorois community in kenya11, did not make use of these rules. in this case, the legal regulations that were considered unfulfilled are various precepts of the african charter of banjul for human and the peoples’ rights. 1010 report of the african commission’s working group of experts on indigenous populations/communities (adopted by the african commission on human and people’s rights at the twenty-eight session, 2003). 11276/2003 centre for minority rights development (kenya) and minority rights group international on behalf of endorois welfare council v. kenya. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 87 the rights of pastoralist peoples. a framework for their recognition ininternational law so we find, therefore, another field, that of human rights, that can serve as legal support to bolster protection and the validity of the pastoralist peoples’ rights. concretely, the african commission estimated that in this matter the articles 1, 8, 14, 17, 21 and 22 were not fulfilled. those articles refer to various rights, such as property, culture, religious practice, access to natural resources and development. they are human rights recognised in the aforementioned african charter and that also are reflected in the regulations and texts of international law in general. the commission made the effort to apply the law paying attention to the singularities of the pastoralists. thus, express mention of the protection of the pastoral way of life is made, as a derivation of the second and third paragraphs of article 17, which recognises the right of the culture. moreover, the violation of property rights due to the loss of their ancestral lands is recognised. in short, these observations are the essential core of the rights that must deserve protection for these communities. this labour of application demands that one possesses necessarily a collective perspective. before us are rights that are required for a collective and, certainly, the consideration that one is dealing with only individual rights is insufficient. is it possible, therefore, to surmise that the rights of pastoralist communities are by nature collective? it is true that still today there is some doctrine in international law that denies or that shows itself reticent in recognising and admitting rights of this nature12; however, this is an already sterile debate, given that the existence of these rights in international legal order as of today is undeniable. there are many suppositions and a category of its own of rights for pastoralist peoples would have to have this collective nature. such as this is, it is logical to argue that the pastoralist communities be considered as a people thus to obtain the protection of this system of rights. this is a strong argument, difficult to refute and that has already been vindicated, for example, as in the case almost a decade ago by the professor of the university of makerere, samuel tindifa13. implicitly, the aforementioned endocroi case also recognises this possibility. in all matters, that which is ideal is that which serves, as we have been pointing out all along, to defend a specific category of rights of the pastoralist communities. on the other hand, the consideration of these as collective rights has implicit practical consequences. in these rights one can give a representation in the name of all the members of the group or collective without it being necessary to count on the collaboration 12 see particularly donnelly, s., third generation rights, in peoples and minorities in international law, the hague, ed. martinus nijjhoff, 1993, pp. 133-134. prof. donnelly indicates that “all internationally recognized human rights regulate the relations between individuals and society with special emphasis on what the state must and must do for against or with respects to individuals”. 13pastoralism in the horn of africa. report of a workshop on social and economic marginalization, 8-10 december 1998, nairobi. kenia, 5. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 88 miguel ángel martín lópez or participation of each of the said members. that is useful before legal or administrative proceedings to assert these rights. in practice in many countries one can observe that there are limitations in this sense, allowing only for the defence of each right or individual interest, and limiting collective actions. on account of that, this should be recognised and should remain well established for pastoralists. this is the case, for example, of tanzania14, where a study has shown the restrictions that its tribunals have placed on some members or representatives when they wished to litigate in the name of the community or on the outcomes of litigation having greater effect beyond that of the litigants themselves. there are many legal antecedents (mulbadaw case, yake gwaku case, etc.) in which obstacles are placed before communities when they have desired to appear as plaintiffs before the tribunals to demand rights that have a collective scope. to allow, therefore, collective representation is key. consequently, the necessary means to facilitate the representation and the exercise of these rights should be established beforehand for the pastoralist communities in the internal legal order, moving beyond a focus on just individuals, which limits the efficacy of these rights. on the other hand, it is necessary to keep up efforts to search of juridical rules in force in international legal order that defend the existence of pastoralists’ rights and by so doing we may find that we have come upon the right to development. it is most difficult to deny that this has been recognised as part of general international law, which is now twenty-five years old, since its adoption by the general assembly of the united nations in their declaration of recognising this right15, but is it applicable in the case of pastoralist communities? an affirmative example can be seen in that of the african commission itself, in the so called endorois case, also expressly mentions and cites specifically the third article of this declaration, which stipulates the obligation of the states to create the adequate conditions so that the achievement of this right is possible. this right also admits the possibility of having as a recipient a collective or group. it is true that there is a very interesting doctrinal debate regarding whether or not the right to development is an individual right or/and a collective one16 and some conclusions to this 14experiences in the defence of pastoralist resource rights in tanzania: lessons and prospects, part. a, dr. sengondo e. mvungi, april 2007, study on options for pastoralists to secure their livelihoods, report submitted to cords, pg. 14. courts in tanzania have failed the pastoralists. they have remained timorous and unable to creatively constitute law to champion their rights as marginalised people leading marginalised livelihoods at. 31. 15a/res/41/128 4 december 1986 97th plenary meeting 41/128. declaration on the right to development. 16 see abi-saab, g, the legal formulation of a right to development (subjects and content), the right to development in the international level, the hague, ed. sitjhoff, 1980, p. 163; gros espiell, h., the right of the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 89 the rights of pastoralist peoples. a framework for their recognition ininternational law regard can be clear. development is centred on the individual and it is made manifest in the manner it favours multiple individual rights (food, education, housing, health, etc.), but it requires, due to its very given nature, that it be fulfilled by a group of people. professor phillip alston of new york university states it well upon indicating that this right, with a predominately individualistic orientation, is a part of an indivisible aggregate with an essentially collective orientation. it is fulfilled in relation to a group17 and the pastoralist peoples very well can consider themselves technically as a group recipient of this right. it is an argument in favour of the recognition of the category of pastoralist communities’ rights. within the walls of the united nations itself work is under way in order to delve deeper into this right and to establish indicators that clarify better the contents of this right18. up to the present, no reference or mention of pastoralist peoples has been made in this endeavour. it would be desirable, naturally, for that to happen. however, implicitly and via the application of legal reasoning, we believe that it can be affirmed that the right to develop protects them and entails obligations for the states that they inhabit. in particular, we consider that over their heads should hang the obligation of improving their living conditions through precautionary planning or developmental programs, which deal with their necessities and particular problems, aimed specifically at them. moreover, we also can surmise that this must be part of the essential contents of the pastoralist communities’ rights, thereby surmounting a past, as we will see, characterised by scant legal attention on the part of their governments. in addition, this forms the basis of one the most commonly made lawsuits against the states by pastoralist groups, who in some occasions have filed its claims as formally written documents. a current example of this occurrence can be found in the case of the fulani pastoralists of nigeria, who, in a letter addressed to their government, demand not only access to pastures but also the right to development for their twelve million members as a means of overcoming their traditional exclusion from society, their illiteracy and their development as a human right, texas international law journal, 1981, 16, p.200 and bedjaoui, m., the right to development , international law: achievements and prospects, the hague, martinus nijhoff, 1991,p. 1179. prof. gros espiell indicates that “only if the right to development is simultaneously considered as a collective and individual right does the idea of development acquire its meaning”. 17alston, phillip: “the right to development at the international level”, the right to development in the international level, workshop the hague 16-18 october 1977, ed. united nations university and the hague academy of international law, 1980, ed. sithjoff, 108. 18right to development. report of the high-level task force on the implement of the right to development on its sixth session, geneva 14-22 january 2010. addendum. right to development criteria and operational subcriteria, a/hrc/15/wg.2/tf/2/add. 2, 8 march 2010, united nations, general assembly. completion of the conclusion and recommendations of the open-ended working group on the right to development (1998-2012), a/hrc/wg.2/14/crp.1, 6 december 2012. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 90 miguel ángel martín lópez recurring conflicts with the agriculturalists who have made them loss in the last decade more than three and a half million heads of cattle19 likewise, one must keep in mind that the application of the right to development for the pastoralist peoples must follow one of the most important entitlements of this right, as is the principle of participation for the pastoralist communities. this principle acts as part of the essential content of the right to development and it necessarily must be taken into account by the public authorities charged with its application in specific programs for them and transversally in all those that may affect them. this is a requisite than cannot be obviated, and a good indication of that are the texts and international documents that have begun to accept it. a very illustrative example in this sense is article 10 of the united nations convention of june 17th 1994 on combatting desertification20. expressly, this article calls upon the pastoralists and their representative organizations to have effective participation in the planning, approval, implementation and revision of the national programs of action against desertification. this is a most noteworthy example, fundamentally being a treaty of obligatory scope. without a doubt, here the principle of participation is enjoying a positive reception. likewise it is fitting to succinctly state that also in said plans against desertification the right to development of these pastoralist communities should be well reflected. it is very much tied to their way of life and they face the effects of desertification continually. we already indicated that it is one of the principle causes of the increasing conflicts between agriculturalists and pastoralists. finally, we can find even more current international rules in favour of the rights of the pastoralist communities. thus, some have put forward the argument that they also protect the international legal precepts of the protection of minorities. as it has been done by, for example, david martin, public diplomacy officer for the united nations high commission on human rights21. certainly, international law slowly has been developing protection for this legal basis, which materialized in the form of a declaration of rights passed by the assembly general of the united nations22 and, above all, by the article 27 of the international 19missionary international service news agency, 12-09-2012. 20ask, vesmeloy: unccd and food security for pastoralists within a human rights context, dcg report nº 43, february 2006, drylands coordination group-fian, oslo, norway. 21david martín castro, the protection of the rights of pastoralist peoples in the united nations system, http://data.iucn.org/wisp/documents_english/pastoralist%20rights%20eng%20(3).doc. (last visited may 16, 2015). 22 a/res/47/135, 92nd plenary meeting, 18 december 1992, declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 91 http://data.iucn.org/wisp/documents_english/pastoralist%20rights%20eng%20(3).doc the rights of pastoralist peoples. a framework for their recognition ininternational law covenant on civil and political rights, which protects the exercise of one’s culture in the seat of one’s community. it may be, in a large number of suppositions, these communities may fall into this category of national minorities, although it need not necessarily be the case and all of them may fall into this category. therefore, the singular and proper recognition of a singular and proper law for the pastoralist communities would be ideal, as we have been defending in this article. we can conclude, therefore, that there is enough legal basis to affirm the existence of rights for the pastoralist communities, as has been made clear in the previous paragraphs. this protection rests securely on the international law in force. the challenge has to be to the effectiveness of the application of the precepts, which can contribute considerably to its recognition and diffusion of a specific category of rights for pastoralist peoples. to advocate for these very same rights does not imply a creation ex novo of law. it already exists. the matter at hand is to recapitulate and to put in order diffused laws in the concrete application for a collective, thereby achieving greater coherence, concision and greater force. iii. the fundamental rights of pastoralist peoples this current work, as has been indicated, attempts to contribute to the creation of a body of law for pastoralist peoples. for this work, an essential first step is to establish the rules or fundamental rights, the ones that must function as pillars to bear the weight of the subsequent policy framework in this area. in this sense, we believe that there are two fundamental laws, each with its own opportune particularities, which respond to this requisite: a way of life which is entitled to protection and the recognition of the right to land. we shall hereafter trace out the fundamental features of each of them. iii.1. the protection of a way of life it is clear that this protection has an essential character. certainly, no other law or rule would make sense for this collective if complete respect for it and application of it do not take root firmly. moreover, an effective recognition of this protection is necessary, given that, as recent history has demonstrated, this way of life has been called into question. generally, it has been considered unviable, anachronistic and very undesirable. what is more, it has been scarcely supported. as is widely known, after decolonization and after the birth of new states, an initiative for policy that sought to make nomadic communities sedentary was fomented considerably. this result was seen as a desirable political objective for national the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 92 miguel ángel martín lópez development and state construction, even if that had an impact on the way of life and the mobility of said populations23. one may even say that these policies even had international encouragement and support. thus one can see, for example, in a very illustrative manner, in recommendation 104 of june 5th 1957 of the international labour organization on the protection and integration of indigenous populations and tribal and semi-tribal populations in independent countries. concretely, in its third point it laid out expressly that so long as the objectives of a settlement policy for semi-nomads were not met, the areas in which these groups could freely pasture their livestock should be determined. as such, implicitly, acceptance is garnered. moreover, this negative posture towards pastoralism has persisted in time. we shall provide some examples also illustrative in nature, such as the important workshop that took place in december 1998 in nairobi on economic and social marginalization, which was the very same workshop that drew as an incisive conclusion that the african states did not consider pastoralism to be a viable way of life24. again, more recently, in 2008, an oxfam investigation continued to make manifest that national policies are inappropriate to come to grips with the issue of pastoralism25. that would become quite apparent in countries like kenya, uganda or tanzania. now is the time when it seems that this state of affairs finally is starting to change and to stir an interest in revitalizing the pastoral world, highlighting the positive contributions of this system of production and the need to empower these pastoral communities. in this endeavour, it is necessary to underscore the impetus that the world initiative for sustainable pastoralism (wisp) is providing. wisp operates under the auspices of the united nations development programme (undp) and the world nature organization (wno), and that, in just a few years, has managed to create a global network of which more than two hundred organizations from this sector around the world are members. 23david grossman, rural process-pattern relationships: nomadization, sedentarization, and settlement fixation, portsmouth, greenwood press, 1992. victor ayarza, pastoralism and the state in africa : marginalization or incorporation?, nomadic peoples, vol. 38, (1996) 11-36.y. sanon, politiques publiques et développements ed l’élevage au burkina faso: politique de sédentarisation et évolution de l’organisation sociale et productive des fulbé burkinable, thèse doctorale, 2003, université paris-nanterre. more recently, it is interesting to see j. gilbert, nomadic peoples and human rights, london, routldege, 2014 24pastoralism in the horn of africa. report of a workshop on social and economic marginalization, 8-10 december 1998, nairobi, kenya. 25kirkbride, m., grahn, r.: survival of the fittest. pastoralism and climate change in east africa, oxfam briefing paper 116, oxfam international, 2008, at 17, 19, 34: “put an end to inappropriate development policies aimed at pastoralists, include encouraging settling communities through inappropriate bore-hole drilling and the assignment of fixed grazing lands to pastoralist communities”. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 93 the rights of pastoralist peoples. a framework for their recognition ininternational law wisp also is advocating for a change in the policies that spurn them in order for there to be a positive consideration of their contribution to environmental sustainability26. today it emerges a process of claiming their main interest. for example, the hustai declaration from central asian pastoralist call society for a better recognition of pastoralist (27th july 2015). their networks are present in the global decision making fora (on food sovereignty, environmental issues, etc). these fora are usually centred on concrete themes that affect pastoralist, but broad discussions on pastoralism as a whole are much scarcer27 in addition, in a similar vein, one must highlight the work of the african union, which adopted in january 2012, in its eighteenth session, the document entitled policy framework for pastoralism in africa28. this amounts to a strong impetus for the protection of pastoralism on the continent. its objectives, according to what is set out in its reference documents, are to ensure and to protect the lives, the ways of life and laws; make a commitment with its development; and to reinforce its contribution to the economies. what is more, the very same document is going to be expanded and developed in the coming years29. scientifically, also it is becoming increasingly evident that the pastoral productive system provides positive contributions, compelling the traditional negative perceptions to be dispelled. indeed, the transhumance has been a system historically well suited to a difficult natural environment and that has made optimum usage of scare natural resources, providing a way of life for a significant number of people. in fact one is already clearly able to observe that the process itself of sedentarization and the abandonment of pastoralism is the direct cause of severe land degradation which is occurring in numerous semi-arid zones. now, therefore, should be the moment of action on the part of the law, which, by its own nature, must be the suitable and appropriate instrument to offer effective and real protection of the pastoral way of life, complementing other political or scientific measures. the fact of the matter is that the aforementioned african union political framework explicitly recognises the rights of pastoralists. it makes mention of their existence although 26world initiative for sustainable pastoralism, enabling sustainable dryland management through mobile pastoral custodianship: world initiative on sustainable pastoralism (wisp), terminal evaluation final report prepared by: oliver chapeyama, september 2011 27 http://www.fao.org/pastoralist-knowledge-hub/pastoralist-networks/thematic-working-groups/en/ (last visited, jun 10, 2016). 28policy framework for pastoralism in africa,: securing, protecting and improving the lives, livelihoods and rights of pastoralist communities, african union, department of rural economy and agriculture october 2010, addis ababa, ethiopia. 29the stakeholder’s validation workshop on institutional arrangements and resource mobilization strategies for the policy framework on pastoralism was held in addis ababa, ethiopia on 21-22 august 2012. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 94 miguel ángel martín lópez it is vague and it is limited to a mere general reference30. there is an absence in the framework of any construction well elaborated by its framers, thus making it mandatory to engage in a wider analysis of the contents, scope and the effects of these rights. in addition, there is no mention what so ever to this right to their way of life, which is clearly evident. that is essential and the construction of the rights of the pastoralist peoples must be presided over by this principle of respect for their way of life. the very same notion, in addition, has been recognised in an express fashion by the african commission for human rights in the also aforementioned endoroi case, and we can also consider it to be implicit in respecting a culture that makes sacred in various international human rights instruments and in other rules in international law, such as those relative to minorities, indigenous peoples or the right to development. from all these regulations one can deduce their existence. nevertheless, the ideal situation would be for this principle to receive recognition ex profeso and the same be realized within the framework of the singular category of the rights of the pastoralist peoples, which is what we have defended all along. by so doing, we believe that this right would end up being reinforced. likewise, once this law has been well established, the argument of having to maintain the politics of sedentarization to promote the development of the nation or of the country no longer makes sense. that has been fallen back upon profusely. now the right to development must be also an argument in favour of the protection of this way of pastoral life and it must give priority to this group of humans. this right is based on the human person, as the third article of the declaration of the united nations on this right expounds, and, as a consequence thereof the necessities of this wide group of persons must prevail over the supposed national interests or those of the state. the right to development must serve to maintain this environment of pastoral life. it must be kept in mind that, for this long-term survival to be viable, it will be necessary that the people of these communities improve their living conditions and that they totally have satisfactory access to health care and education. precisely, these last three components are the succinct reference which the aforementioned african union policy framework makes with regard to that which must be pastoralists’ rights31 304.1.1 recognize the rights of pastoralists: the framework explicitly recognizes the rights of pastoralists, and the need to provide security, services, infrastructure and economic opportunities in pastoral areas which are comparable to non-pastoral areas. this principle is articulated as a response to the high levels of conflict in pastoral areas, and the low levels of basic services, of which health and education are particular concerns. it further recognizes that under the broad challenges of health and education, are a set of specific barriers of service access for women and girls. the principle relates directly to international human rights conventions and laws, including the right of people to protection from violence, the right to pursue a livelihood of their choice, and the right to education and health. (policy framework, supra.note 20). 31 id. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 95 the rights of pastoralist peoples. a framework for their recognition ininternational law without the enjoyment of these rights and the experience of a dignified life, in general the right to development, there can no future for the survival of this way of pastoral life, which, due to its very essence, will require adaptation. finally, it is necessary to underscore that one of the essential components of the pastoral way of life is the most important, that being mobility32. this element is part and parcel of the very nature of this way of pastoral life33. as a matter of fact, currently, the limitations to which this mobility finds itself subjected are the gravest threat which the survival of pastoralism faces. more and more these days more obstacles are literally rising up, such as fences for agricultural operations, for the expansion of crop land, for industrial extraction and processing, etc. therefore, it is necessary to take measures to step in and preserve open spaces for the sake of mobility. and, on account of it, we can understand what necessarily makes up part of this first right of pastoralists peoples, which in consequence must wholeheartedly receive maximum juridical protection. to that end, that which would be most effective would be for internal rights to foresee the need for measures proactively to grant this protection. there are some cases in which express protection is given at the highest level. the case of mauritania, with its foresight in concrete instances such as its pastoral statutes, is worth highlighting. without a doubt, here as well it would be interesting to search for rulings and arguments in the international legal order to support this mobility. in this task some benefits may be reaped. thus, it is interesting to recall that there are rules in international law that protect and guarantee the right to freedom of movement and the right to adequate housing. this is the case in the first paragraph of article 12 of the international pact on civil and political rights34 or article 13 of the universal declaration on human rights35. these also must favour and assist the pastoralist communities, as well as serve as a base upon which to lay the foundations for the utility of a rule of protection 32swallow, brent: the role of mobility within the risk management strategies of pastoralists and agropastoralists, gatekeeper series nº sa47; niamir-fuller, m.: managing mobility in african rangelands: the legitimization of transhumance, in property rights, risk and livestock development in africa, international food policy research institute, brent swallow, nancy mccarthy, michael kirk, peter hazell, washington ( 2000) at 102 33 j. gilbert, nomadic territories: a human rights approach to nomadic peoples’ land rights, human rights law review, 7:4 (2007), 681-716 ; academy in-brief no. 5, negotiation of a united nations declaration on the rights of peasants and other people working in rural areas, geneva academy of international humanitarian law and human rights, january 2015 at 70-73. this research cites some international declarations advocating for mobile rights to pastoralist peoples. 34“everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence…” 35“everyone has the right to freedom of movement and residence within the borders of each state”. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 96 miguel ángel martín lópez nevertheless, if it must be kept in mind that in terms of its scope of application in each separate case it would act as a means of support to guarantee the right to the freedom of movement within the interior of the territory of each state. what would not be covered would be the transit or the movement of livestock through various countries. the transhumance traditionally, by its very nature, has been a transnational phenomenon, which entails crossing various frontiers, which must remain preserved. a rule to that regard must be recognised. the past reference to the aforementioned international court of justice in its attention to the needs of nomadic and semi-nomadic peoples in the case of the demarcation of frontiers between niger and burkina faso appears to move in this direction and we believe that it also can be an argument in favour of international recognition of pastoral mobility. as a final point, we believe that, globally speaking, precision is a necessity. pastoral mobility must not be understood as an absolute right, always applicable in each and every instance and under any given circumstance. the law must modulate its intervention and also establish some requisites and establish some exceptions based on the greater public good. this is the case, for example, of establishing routes, calendars, documentation for the effective control of people and livestock, etc. naturally, none of these measures can have as a side effect the gutting or amelioration of the essential content of this mobility, which must always be preserved. iii.2. the rights to the land of the pastoralist peoples as we have already indicated, the other essential component that must necessarily be part of this body of law for the pastoralist peoples is the recognition and the protection of the access, use and exploitation of the land. that is essential, in as much as these rights to the land are a necessary condition for their activity as producers and the social development itself of these peoples. it is logical for them to have as their most elemental assertion the capacity to access pastureland and to have freedom of transit and of movement to facilitate their means of existence. we can even understand that having these rights well guaranteed is also a necessary condition for the perpetuity of the way of life of these communities36. 36dafinger a. , pelican, m., land rights and the politics of integration: pastoralists strategies in a comparative view, max planck institute for social anthropology, working paper nº 48, halle; traore, problems in pastoral land management related to tenure: policies versus basic practice, managing land tenure and resource access in west africa, ed. gret and lled, proceedings of a workshop held goree, senegal.; salzman, p.c.:, afterword: reflection on the pastoral land crisis”, nomadic peoples, vol 34/35 (1994) at 159-163.; mc carthy, n. swallow, brent, kirk, michael, hazell, peter: property rights, risks and livestock development in africa, ifri, 2000. flintan, fiona: the political economy of land reform in pastoral areas: lessons from africa, implications for ethiopia, paper presented at the international conference on the future of pastoralism, 21-23 march 2011, university of sussex.; bertrand bonnet dominique hérault, gouvernance du foncier pastoral et changement climatique au sahel, land tenure journal, fao, 2, (2011), at. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 97 the rights of pastoralist peoples. a framework for their recognition ininternational law in practice, the precariousness of this recognition can be observed. these communities lack formal ownership in the majority of cases. there is insecurity on whether or not they are entitled to legal formal ownership, which is patently clear, above all, in the less habitual uses, such as migrations or seasonal movements that are very vulnerable legally speaking. in addition, the increasing conflicts between pastoralists and agriculturalists usually are in essence conflicts over the rights over the use of the land and over its content, scope and limitations37 it is true that the scant protection of land ownership rights is a problem of a general nature, not only for these peoples. all the rural communities usually are vulnerable in this aspect. that is increasing nowadays due to the growing tendency to the hoarding of land, large scale investments and privatization38. these phenomena are, without a doubt, real threats to said rights. this being so, it is easy to explain that on an international scale there is an increase in the number of initiatives and demands to establish these rights and to obtain greater protection. it is even getting to the point in which there is a defence of the establishment of a human right to land39, which would truly enhance, without a doubt, its legal protection, although it still is in an embryonic stage of development, and as proposed de lege ferenda it would have to travel a long road. although, and in spite of that, on may 11th 2012, the committee on global food security in its 38th special session adopted the voluntary guidelines on the responsible management of land, fisheries and forests. these guidelines do not constitute a legally binding text. they are by character voluntary, although their influence is considerable as it functions as a guide and as orientation for the states and it encapsulates and makes manifest in writing rules and principles generally accepted in these areas that pay heed, as we have seen, to a great international demand. it was logical to think that this text might have included in its regulations the specificities of the pastoralist communities relatively speaking to the aforementioned possession of land40. a complete assimilation with other communities is difficult, above all 157 ss. pastoralism forum ethiopia, international institute of rural reconstruction, the development fund, pastoralism and land: land tenure, administration and us in pastoral areas of ethiopia, addis ababa, 2010. iucn (2011). the land we graze: a synthesis of case studies about how pastoralists’ organizations defend their land rights. iucn esaro office, nairobi, kenya. 37 id. 38land tenure and international investments in agriculture a report by the high level panel of experts on food security and nutrition, july 2011, hlpe report 2, committee on world food security, rome 2011, 10. 39de schutter, olivier , the emerging human right to land, international community law review, vol. 12, (2010) 303-334 40on the contrary, reference to pastoralist is made to voluntary guidelines to support the progressive realization of he right to adequate food in the context of national food security (guideline 8.1). the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 98 miguel ángel martín lópez with those which engage in agriculture, where the possession of land is more direct and deals with very concrete spaces, bring with it the exclusion of user or owners. normally, this possibility only can fit in the postulations of semi-pastoralists, where there is less mobility and pastoralism is centred on specific and demarcated land. nevertheless, that has not occurred. there is no special specific treatment for the land ownership rights of the pastoralist communities. in fact, there is not even any mention at all to them in the entire text of the guidelines. this information void must be filled. a fortiori, the right to land references in the draft of the declaration on the rights of peasants and other people working in rural areas (art 4) only refers to peasants41. therefore, it is necessary to engage in the task of analysing the application of the foreseen regimen of the guidelines in the concrete case of the pastoralists. naturally, this regimen also should be useful for them and there must be an effort made to interpret it and apply it to their particular needs and situations. and, as a point of departure, one must keep in mind the variety of situations that can be encountered in this pastoralist possession of land. it is a complex question that offers multiple possibilities, with considerable fine details, and that cannot be simply reduced to a few general ideas. naturally, in this labour one also should be preoccupied with the task of elucidating which is the formula that best protects these peoples. and in this sense, one may think perfectly well that the ideal situation is for the lands that are for pastoral be constituted as part of the public domain and they will be, therefore, protected by the state, guarantor of said use. in the african states in which this sector possesses a more significant presence, this solution is well received. this is the case of niger, whose rural code grants this legal condition to the lands with the aforementioned usage. the regulation of the rural code, in addition to this recognition, establishes measures of protection, like the express prohibition of any given concession on these lands and the preparation of a national inventory in which this data is gathered and arranged. the code also concerns itself with both the inclusion in the condition of public domain the ways and transhumance corridors that the livestock usually uses, and, in addition, it grants the condition of public water sources to those watercourses that may be found along these lands and ways. this protective regulation is ideal and, without a doubt, at an international level, is useful as a bulwark against the encroachments of the privatization of state-held lands and lands that are public domain. it works to protect its use by the pastoralist communities and, 41a/hrc/wg.15/1/2, 23 june 2013, declaration on the rights of peasants and other people working in rural areas human rights council first session 15–19 july 2013 open-ended intergovernmental working group on the rights of peasants and other people working in rural areas. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 99 the rights of pastoralist peoples. a framework for their recognition ininternational law by extension, their way of life and their survival. currently, it has become something imperative, given the expansion of these processes of privatization in numerous countries42. we can give an example to this regard, as is the case of senegal, whose recent start to the process of the legal reform of the law governing land ownership (loi foncier) has already been perceived as a very liberal and almost reckless push towards privatizations and concessions43. there also have been documented cases of instances of forced removals44, the loss of access and the dispossession of pastoralist communities a consequence of concessions, building projects and the sale of land to increase the size of agricultural operations or other such actions. examples of this have recently been in the public eye in the ethiopian region of afar45. these communities are witnesses to how their ways of life are limited and, ironically, this occurs in a country en whose constitution the article 40 expressly protects and recognises the right to free access to pastureland and to the right to not be removed from ones very own land. the debility and scant formality of the title deeds covering usage by the communities provokes these situations. this debility is generalized and it usually also is present when the lands are collective or communal property46. this form of ownership, termed ‘the commons’ is very extended on an international level, above all in the rural areas of developing countries. it is estimated that more than two billion people live on them and one could think well that a large percentage of the global number of pastoralists is included in that figure. 42 http://www.landcoalition.org/en/resources/commercial-pressures-land-worldwide (last visited, jun 10, 2016). 43 see commission nationale sur la réforme foncière: le congad veut un dialogue inclusif, le solei online, friday, 8february 2013. 44see on karayu pastoralist of gambella region, ethopia (a/hrc/4/9/add.3, 28 february 2007, implementation of general assembly resolution 60/251of 15 march 2006 entitled “human rights council, report of the independent expert on minority issues, gay mcdougall addendum mission to ethiopia*,28 november-12 december 2006. 45bekele, hundie, martina padmanabhan, the transformation of the afar commons in ethiopia. state coercion, diversification and property rights, change amongst pastoralist, capri working paper nº 87, june 2008, http://www.ifpri.org/publication/transformation-afar-commons-ethiopia. (last visited, jun 10, 2016) 46baland, j.m., platteau, j.p.: division of the commons: a partial assessment of the new institutional economics of land rights, american journal of agricultural economy (1998); ensminger, j. rutter, a.: the political economy of changing property rights: dismantling a pastoral commons, american ethnologist, vol. 18, (1991) at 683; lawry, steven, tenure policy toward common property natural resources in sub-saharan africa, natural resources, (1990) 403. lane c. r.: custodians of the commons: pastoral land tenure in east and west africa, 1998; beyene. fekadu: korf, benedikt, unmaking the commons: collective action, property rights and resource appropriation among (agro-) pastoralists in eastern ethiopia, capri working paper nº 88, june 2008 http://www.ifpri.org/sites/default/files/publications/capriwp88.pdf. ; tidiane, ngaido, can pastoral institutions perform without access options? in mc carthy, n. swallow, brent, kirk, michael, hazell, peter: property rights, risks and livestock development in africa, ifri, 2000, at 299. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 100 http://www.landcoalition.org/en/resources/commercial-pressures-land-worldwide http://www.ifpri.org/publication/transformation-afar-commons-ethiopia miguel ángel martín lópez all in all, one must recognise that it is not a form of ownership that has been highly regarded and kept in mind by politics and economic analyse in general. from investigations linked to the world bank, it has been considered not very efficient at all47. the usage of the famous expression ‘the tragedy of the commons’ also is very widespread when referring to these lands, and that, in essence, communicates the idea that this modality of land ownership brings with it overexploitation and that it is largely unviable. common property, that of a communal disposition, when free, generalized, irresponsible and predatory access, without any worries concerning its maintenance as a common possession, is permitted simply devolves into a sort of no-man’s land. in a famous article published in the journal science, garret hardin used precisely the example of pastoralists and their use of grasslands48. now then, this analysis is an abstract exposition. in practice it has been demonstrated on numerous occasions that that is not the case. more precisely, the pastoralists can consider themselves to be the best guardians of the commons49. they constitute the human group most preoccupied with its perpetuity and utilization. in addition, more and more it is becoming quite clear that in some zones, like the sahel, their usage is what keeps large tracts of land from being lost to the effects of desertification. very much to the contrary to that which it might appear, they contribute positively to environmental sustainability. at any rate, one must begin with the idea that this modality of land ownership is protected by the alluded to guidelines adopted by the fao. the protection of the traditional systems of land ownership, in which one must include pastoralism, is cited on multiple occasions in the body of the text50. now what is impossible to find in them is a complete and detailed regulation of the commons and their specificities. to the contrary of what it may seem to be superficially, this regulation offers considerable legal complexity and richness, that cannot simply be reduced to a few general ideas. communal property can be so diverse that it is advisable to examine each concrete instance. normally, it is governed by consuetudinary rules that also will vary from one place to another. including, the very demarcation of those who constitute the community deed holder of the lands needs to be studied in each concrete instance. in some cases this community 47platteau, j.-p., the evolutionary theory of land rights as applied to subsaharan africa, a critical assessment. development and change 27 (1) (1996), 29-86. 48garret hardin, the tragedy of commons, science, new series, vol. 162, (1968)at 1243. 49charles lane (editor), custodians of the commons: pastoral land tenure in africa, new york, routledge, 1998. 50 see guideline 9. voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 101 http://www.fao.org/nr/tenure/voluntary-guidelines/en/ http://www.fao.org/nr/tenure/voluntary-guidelines/en/ the rights of pastoralist peoples. a framework for their recognition ininternational law can be well defined and have very clear contours. in other cases, the beneficiaries can be diverse groups, from diverse provenance. in the first case, common property is a possession that can be assimilated into the private property of a group, which is what brownley stated51. the land and pastures belong exclusively to a community, which can even exclude third parties from making use of them. specific to the case of pastoralists, this type of property can be seen in various guises, like in the lands that constitute the core of the communities’ homeland. they usually are points of departure and places sacred in nature. in the case of agro-pastoralists it can be seen with even greater clarity. these communities (which are growing in number) have very limited mobility and, on account of that, the boundaries of their communal lands can be ascertained without any difficulty. all in all, in spite of that, is it common to find in practice permits given by the communities themselves for those individuals who come from other communities to pass through their lands and to practice pastoralism. these communities also usually reciprocally do the same with other communities. a system operates on the basis of a sort of reciprocal agreements for the transfer of pastureland. there is no doubt that this is a strategy based on interest in increasing the quantity of available land. similarly, it would be necessary to pay attention to the manner in which each community distributes and regulates the modalities and conditions of use. consuetudinary rules, which will come in a considerable variety, will also constitute this internal regulation, these will be practically unique in each community and they will tackle issues such as the role of traditional chiefs, the clans, the successions, the granting of territory, etc. the exercise thereof shows considerable richness. on the other hand, we have already commented that in some cases it is more difficult to determine which community is the exclusive and sole owner of a particular tract of land. it is typical to find instances in which there is sufficient enough land and multiple users of that space overlap each other, utilizing with different levels of intensity and at 51daniel w. bromley, resource degradation in the african commons: accounting for institutional decay environment and development economics 13: 539–563, 2008 bromley, d.w., d. feeny, m.a. mckean, p. peters, j. gilles, r. oakerson, c.f. runge and j. thomson (eds), making the commons work: theory, practice, and policy, san francisco: ics press.(1992). more recently, see jon abbink, kelly askew, dereje feyissa dori, elliot fratkin, echi christina gabbert, john galaty, shauna latosky, jean lydall, hussein a. mahmoud, john markakis, günther schlee, ivo strecker, david turton, lands of the future: transforming pastoral lands and livelihoods in eastern africa, max planck institute for social antropology, working paper, nº154, 2014. usaid issue brief, pastoral land rights and resource governance overview and recommendations for managing conflicts and strengthening pastoralists’ rights http://www.usaidlandtenure.net/sites/default/files/usaid_land_tenure_pastoral_land_rights_and_resourc e_governance_brief_0.pdf (last visited, jun 10, 2016). the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 102 http://www.usaidlandtenure.net/sites/default/files/usaid_land_tenure_pastoral_land_rights_and_resource_governance_brief_0.pdf http://www.usaidlandtenure.net/sites/default/files/usaid_land_tenure_pastoral_land_rights_and_resource_governance_brief_0.pdf miguel ángel martín lópez different times. that occurs, above all, in situations where there is vast pastureland, when there are users who use the communities en-route when grazing over large distances y, most typically, along the routes of seasonal transhumance. in these cases, there can appear concurrently different users with different access entitlements to the land. legally, this lends itself to creating mosaic-like scenarios. thus the possible existence of a hierarchy of rights is discussed; there are some who invoke a priority of use in function of diverse criteria (seniority etc.). in practice the existence of secondary and tertiary users can be observed. these different uses and users normally are present in situations characterized by their flexibility, their informality and an absence of boundaries. undoubtedly, it is interesting to see that within the same territory various different rights can be asserted. nevertheless, that which cannot be lost sight of is the precarious nature of these informal arrangements. property rights that may have crystallized over the course of time possess considerable fragility in the face of evidence and allegations. moreover, that fact has been borne out in the practice of law and national legal systems. in the case studied in tanzania, for example, restrictions have been made manifest in the practice of recognizing the rights of pastoralist communities52. given this reality, it is clear that an important challenge must be to eliminate the precariousness and guarantee the rights of pastoralist communities in this area. in this sense we believe that it is important for these communities’ consuetudinary property rights to be presented and duly noted in deed registries. this mechanism appears in the alluded to fao’s guidelines, granting unto them considerable importance as a protective device for those rights53. these registries will have to be designed so that they permit this possibility of inscribing both a multiple possibility of rights and some hypothetical cases, as well. concurrently, they ought to set in motion initiatives to provide training as well as making inventories of these rights. along those lines, an interesting project already was proposed back in 1984 to empower the pastoralist communities in the registration of defensible community rights relating to pastureland and water points54. tightly linked to these questions, we encounter two rights whose protection emerges as essential for the long-term survival and the development of pastoralist communities. this is the case with access to sources of water or water points and the right of way for livestock. we could characterize these two as subsidiary tenure rights, 52 see supra note 3. 53see guideline 17. voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security 54swallow, supra note at 4. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 103 http://www.fao.org/nr/tenure/voluntary-guidelines/en/ http://www.fao.org/nr/tenure/voluntary-guidelines/en/ the rights of pastoralist peoples. a framework for their recognition ininternational law following the terminology of the fao’s guidelines, which seem rather brief and shallow55. and, without a doubt, they would be rights worthy of protection and guarantee. regarding the first one, its relevance for the pastoral way of life is indisputable. access to water is, logically, an essential element in making it possible to move livestock, especially in the long distances associated with transhumance. without this access guaranty, the long-term survival of the pastoral way of life would be subjected to considerable risks. more and more, the risks are greater, given that, in this instance, one can detect that at an international level a tendency to privatize sources of waters. that is especially worrying in some african countries56. in many instances, in addition, conflicts, which can turn violent, arise between users, communities, and sometimes between agriculturalist and pastoralists over the access and use of the aforementioned water points. it is a struggle over an essential resource. keeping in mind these characteristics, it would be important to propose that the sources of water and water points in communal lands or where livestock must necessarily pass through might be treated as a public service, which makes both its privatization and its denegation as a basic service impossible. that would be a necessary derivation to protect diverse human rights and the pastoralists’ rights themselves. it is possible to find already some examples of regulation in this sense, like the water code in mali. the second subsidiary right proposed, the right of way or transit through lands belonging to others, also is essential for transhumance and access to other pastureland. similarly, in practice one can detect increasingly the presence of obstacles and difficulties for this right of way. in some occasions it is derived from an extension of agriculture, for example, increasing the size of fields or the placement of fences, etc. in consequence, it makes it necessary to reinforce these rights, formalizing them and giving them protection mechanisms. in our view, there must be an adequate deed extended over time. its maintenance must be closely watched over in the future. it is certain as well that the exercise of this right could be modulated, establishing usage conditions, for example, through the establishment of concrete transit routes or periods of time when transit would be permitted. this can be a good mechanism for finding a balance between all the present communities’ interests, particularly between agriculturists and pastoralists. 55see guideline 7.1. voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security. 56cotula, lorenzo, law and water rights in the sahel, lsd working paper 25, tenure challenges for improving access to water for agriculture. gomez, a., access to water, pastoral resource management and pastoralist livelihoods, lsd working paper 26 the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 104 http://www.fao.org/nr/tenure/voluntary-guidelines/en/ http://www.fao.org/nr/tenure/voluntary-guidelines/en/ miguel ángel martín lópez likewise, it cannot be forgotten that this right of way can be created between various countries. the transhumance usually possesses an inherently international character. on account of that, the right of way also should be the responsibility of the states concerned with its facilitation, establishing the opportune means to accomplish it. ecowas, under whose auspices a regulation of these ways of transit was written in 1998 (decision a/dec. 5/10/98), has been a pioneer in this sense. in the aforementioned reference to the international court of justice in the matter of the frontier dispute between niger and burkina faso reinforces this necessity to protect the right of way57 the formal recognition of these two rights and an effective protection are, in sum, essential for pastoralist peoples. it is interesting to see that that has always been the case. the studies on consuetudinary right in issues of african land, like those undertaken by professor jean-pierre magnant, make it abundantly clear that both traditionally have been admitted, including in croplands, without agriculturists being able to forestall or hinder them58. we have already said on various occasions that one of the most serious current problems that arise between pastoralist and agriculturalist communities are conflicts59. these conflicts, which currently are increasing in number, are taking on a violent nature. therefore, efforts must be redoubled to provide a legal response to them, finding a balance for the communities immersed in any such conflict. it is true that, although in the past it was not the case, that in the last few decades the politics practiced have favoured agriculturalists noticeably. generally, it is felt that agriculturalists have gained greater security in their claims, meanwhile pastoralists, uprooted and bereft of deeds, have lost security. efforts must be made to establish equity. at all times, one must keep in mind that the question is complex and it merits a thorough monographic analysis. there are many questions and details that can enter into the overarching issue. sometimes, for example, fences, irrigation projects and increases in cropland leave no room for pastoralists. sometimes agriculturalists complain about the destruction of their crops due to the passage and presence of livestock. now, what is more, 57 supra note 1. 58jean-pierre magnant, les normes foncieres traditionnelles en afrique noire, la terre, l’eau et le droit en afrique, a madagascar et a l’ile maurice, sous la direction de françois et gerard lonac, bruylant, paris, (1978) 76. 59basset, thomas, the political ecology of peasant-herder conflicts in the northern ivory coast, annals of the association of american geographers (1988) vol. 78,. 453-472. hussein k, et al., increasing violent conflict between herders and farmers in africa: claims and evidence, development policy review, vol. 17 (1999) 397418. breusers, m. et al., conflict or symbiosis? disentangling farmer-herdsman relations: the mossi and fulbe central plateau, journal of modern african studies, vol. 36 (1998) 357. abba gana, shettima, usman, a. tar, farmer-pastoralist conflict in west africa: exploring the causes and consequences, information, society and justice (2008) vol. 12, 163.184. cousins, b., conflict management for multiple resource users in pastoralist and agro-pastoralist contexts, proceedings of the 3rd international technical consultation on pastoral development, may 20-22, new york. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 105 the rights of pastoralist peoples. a framework for their recognition ininternational law in some countries changes in traditionally followed transhumance routes are occurring because the grazing areas are exhausted in terms of vegetation. there is a tendency to head towards the south in search of less arid lands with sufficient pastureland. that is a changed forced upon them due to the growth in desertification, drought, and, above all, climate change, which is a key threat to pastoralism60. as such, conflicts can only be expected to happen and, in many cases, since they are new areas of transit or passage, they do not possess any deed that legitimizes their use. it is an area, therefore, that as a matter of utmost priority should receive public authorities’, international organisms’ and jurists’ attention to create a legal response and conflict resolution. the guidelines of the fao alluded to previously provide a legal basis for it. in its chapter dedicated to indigenous peoples and other communities with traditional systems of land ownership (where, without a doubt, pastoralist belong) a reference can be found to these situations. expressly, it indicates that when the land is utilized by more than one community they ought to reinforce or create instruments with the finality of conflict resolution between communities61. it, consequently, is a call to affect a development in legal rules. finally, it is necessary to mention that also in these guidelines sufficient legal basis can be found to set limits on the states when it comes to restricting and expropriating lands at pastoralists’ disposition. as is expressed in this text, the expropriation of land only can take place to satisfy some public interest. iv. conclusion in light of that which has been expressed, we can conclude that the international law in force provides a basis for protecting the rights of pastoralist peoples. some branches of international law such as human rights, indigenous peoples, minority rights or the right to development are protecting these pastoralist peoples. naturally, to make these rights more effective and to maximize their impact when applied, the ideal situation would be to create a specific category of rights dedicated 60climate change, drought and pastoralism in the sahel discussion note for the world initiative on sustainable pastoralism, prepared by nick brooks, november 2006 available at http://cmsdata.iucn.org/downloads/e_conference_discussion_note_for_the_world_initiative_on_sustainable_ pastoralism_.pdf. (last visited, jun 10, 2016) pastoralism forum ethiopia, climate change and pastoralism: the implications on sustainable pastoral development in ethiopia, proceedings of the 5thnational conference on pastoral development in ethiopia, addis ababa, ethiopia (2010). 61 see guideline 9.11. voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security. the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 106 http://cmsdata.iucn.org/downloads/e_conference_discussion_note_for_the_world_initiative_on_sustainable_pastoralism_.pdf http://cmsdata.iucn.org/downloads/e_conference_discussion_note_for_the_world_initiative_on_sustainable_pastoralism_.pdf http://www.fao.org/nr/tenure/voluntary-guidelines/en/ http://www.fao.org/nr/tenure/voluntary-guidelines/en/ miguel ángel martín lópez expressly to these pastoralist peoples. this creation also should entail the elaboration of a roadmap to obtain its international recognition. we propose that that be its first step towards its incorporation into a resolution from the general assembly of the united nations. one can estimate it is no appropriate to include pastoralist peoples into a general and residual category of rural workers as does the united nations process for a declaration of peasants rights62. therefore, one can surmise that there are two rights that constitute its essential content: the law protecting their way of life and their access rights to the land. these must act as the legal keystone, acting to support all subsequent legal developments upon which they will be built. its application moreover is essential for guaranteeing the long-term survival of pastoralist peoples and to face down the threats that are looming over them. it should be borne in mind, however, that creating international law, particularly human rights rules, has always been a difficult and long-term process. that needs to be follow a step-by-step approach. in the first instance, the adoption of a general resolution from the united nations general assembly advocating for pastoralist rights could be an enormous revulsive to its recognition in international arena. from our point of view, we believe that the core content of the declaration must be the rights as outlined above. it is important also to encourage pastoralist associations and networks all over the world to carry on participating in this common objective. efforts must be pursued to develop a human rights based agenda. it is to be shared by all stakeholders (pastoralist networks, experts, governments, international organizations, involving civil society) 62 a fortiori, there is no reference, even indirect, to pastoralist in the existing draft of the declaration on the rights of peasants and other people working in rural areas (supra note 35) the age of human rights journal, 6 (june 2016) pp. 83-107 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2931 107 the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 1 basic income and the rights of persons with disabilities* josé luis rey pérez* abstract: the convention on the rights of persons with disabilities presents a social approach to disabilities. in accordance with this conception, the origin of the discrimination suffered by persons with disabilities is mainly social because we have designed our society without universal access for everybody. there is a normality criterion, based on physical capabilities, intelligence, race and gender that excludes many people from that canon. the different contemporary liberal theories of justice have discussed disabilities thinking about how the state could compensate brute luck. in this context, does universal basic income play some role? van parijs in real freedom for all defends a unanimous criterion to compensate for brute luck. that compensation would be made before distributing an equal basic income among everybody. in this paper, ubi will be studied in the context of the debate about rights of persons with disabilities. firstly, the argument given by van parijs will be discussed because the unanimous requirement does not fit with a social understanding of disabilities. secondly, if we consider a right to ubi, it is necessary to study which role this right can play in the life of people with disabilities and if we can say that this right has a universal design. in this point, it will be studied whether ubi can establish some type of indirect discrimination against people with disabilities and if so, which type of reasonable accommodation would be necessary to eliminate that discrimination. keywords: basic income, rights of persons with disabilities, brute luck, universal design, reasonable accommodation. summary: i.the convention on the rights of persons with disabilities and its meaning; ii.disabilities in liberal egalitarian theories of justice. the argument of van parijs; iii.basic income, between redistribution and recognition; iv.basic income and persons with disabilities; v. conclusion i. the convention on the rights of persons with disabilities and its meaning we can say that historically there have been three ways of understanding disabilities (palacios, 2008). the first one, that we can name the isolation and exclusion model, is the most primitive and “considers people with disabilities as unnecessary or even dangerous because the existence of disability was an evil message or a sign of god’s ire. consequently, societies isolated these people by marginalizing them or, at best, by treating them as objects of charity” (rodríguez, barranco, al ali & asís, 2017: 3-4). the medical model, which probably remains the most prevalent in our culture, describes the origin of disability as a consequence of a physical, mental, or sensory limitation or illness, so the responses to them must be offered by medical science. disability is a problem of * this paper is part of the research project “madrid sin barreras: discapacidad e inclusion social” financed by the regional government of madrid (s2015/hum3330). * associate professor of philosophy of law in pontifical comillas university, spain (jlrey@icade.comillas.edu). josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 2 the person who suffers an accident, illness, or a physical condition. what is necessary to give an adequate response is offering medical assistance with the objective of curing or adapting the person to his or her situation. at the public policies level, disability in those countries where welfare benefits exist is one of the aspects of social security systems offering services and incomes. traditionally, disability was protected by civil law through regulating the declaration of incapacity and the establishment of rules for guardianship (rodríguez, barranco, al ali & asís, 2017). the last model is the social one. it explains that the social context determines the individual’s disability. disability is viewed not only as a result of functional limitations but also as a consequence of social influences (quinn and degener 2002: 14). the rights of people with disabilities are limited by the social context. this model demands public policies to eliminate discrimination and its social causes with the objective to make effective the recognition of the human rights of all people. as nussbaum explains in the case of a person in a wheelchair “the reason why this person has less capability than the normal person to get around in public space is thoroughly social: society has not provided wheelchair access in public spaces” (nussbaum, 2007: 165). this means that public policies must change: they cannot be limited to offer some services or financial support, but they must be focused in the effective guarantee of all the human rights. following nussbaum’s argument “no matter how much money we give the person in the wheelchair, he will still not have adequate access to public space unless public space itself is redesigned” (nussbaum, 2007: 167). within the social model, there is a variant that is known as diversity model. “this notion considers disabled people (or differently abled persons) as intrinsically valuable on their own merits on the basis of their diversity, which exists to enrich human societies and make them more creative, interesting, and even prosperous” (rodríguez, barranco, al ali & asís, 2017: 5). disability, from this point of view, is not something bad or a limitation; it is a part of diversity and it is that diversity what makes a society richer (palacios y romañach, 2006; palacios, 2008). the convention on the rights of persons with disabilities was approved by united nations in 2006. it signifies a step forward in the recognition of the human rights of all people and it adopts the social model with the purpose to achieve a real equality for all the people who have different capabilities. the convention analyzes the disability not by concentrating on the features that identify the person with a disability, but rather by focusing on the surrounding social circumstances in which the person is immersed. the legal response is aimed at enacting the rights that are denied or that the disabled person is effectively unable to exercise (palacios, 2008). although there is a discussion about whether the convention includes some new right (de asís, 2013; cuenca, 2016), its final goal is not the recognition of new rights only for persons with disabilities; it is the identification of the rights that all human beings possess, paired with a set of additional assurances that need to be provided to people with disabilities so that they can enjoy the benefits of their basic human rights on the same basis as everyone else (rey pérez, 2018). these additional assurances (that some people can understand as new rights) are the right to universal design, the right to specific supports and the right to reasonable adjustments. basic income and the rights of persons with disabilities the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 3 universal design means the design of products, environments, programs and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design (section 2 of the convention). “universal design” does not exclude assistive devices for particular groups of persons with disabilities where they are needed. however, when something is not accessible that is a discrimination (mainly indirect). because as the general comment number 2 of the committee on the rights of persons with disabilities says, “accessibility should be viewed not only in the context of equality and non-discrimination, but also as a way of investing in society and as an integral part of the sustainable development agenda”. the objective is that all rights must be universal and also the guarantees that try to make effective the content of those rights. when universal design is not possible (this must be an exception only in very concrete circumstances), then it is necessary to provide assistance and support to ensure the access to people with disabilities (asís, 2013). in consequence, supports work as a second-best option when universal design is not feasible. finally, reasonable accommodations are necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms (section 2 of the convention). they are individual and subsidiary (de asís, 2013). ii. disabilities in liberal egalitarian theories of justice. the argument of van parijs traditionally, liberal theories of justice have distinguished between option luck and brute luck (dworkin, 1981a, 1981b). the first is a consequence of the decisions people make during their lives and they are responsible for them. the second is due to mere chance and in this case the state must compensate for it in some way to achieve real equality of opportunities. the different liberal egalitarian theories of justice have defended various ways to make this compensation. however, as it will be explained later, the compensation was usually interpreted in terms of redistribution of resources (additional money) and not in terms of social changes or social recognition. this contention is shared by the most famous liberal egalitarian theories of justice, like the one argued by john rawls or ronald dworkin although other egalitarian philosophers can be included in this group. nevertheless, in this section only the theories of those two will be explained and then van parijs´ argument will be analyzed deeply. finally, the recognition approach will be included in order to make a more global analysis about what means social justice and through which instruments and social policies can be achieved. john rawls distinguished between social and natural primary goods. while social primary goods are distributed by social institutions like wealth, opportunities, rights or powers, the natural primary goods (like health, talents or intelligence) are affected by social institutions but they are not directly distributed by them (rawls, 1971). and in his theory of justice (1971) he proposed the difference principle as a way to compensate the inequality in those natural primary goods. as it is impossible to distribute natural goods, they way to compensate brute luck is that institutions benefit the least advantaged, that is, those inequalities are to be arranged to greatest benefit of the least advantaged. rawls josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 4 does not explain how this idea can be materialized in concrete institutions, but we can suppose that the type of compensation for brute luck is some sort of distribution of social primary goods that improve the position of the least advantaged. however, rawls did not pay attention to people with disabilities in his theory. persons with disabilities are out of it firstly because the subjects who decide the principles of justice are rational, autonomous, capable and homogeneous, and secondly, because even if we understand that they are among the least advantaged, they are excluded from the moral debate (cuenca, 2012). in this sense, although rawls does not explicitly state this, if what is just is how the institutions treat natural facts, we could see that the discrimination against people with disabilities is mainly social and we must remove those institutions that cause that discrimination. so, maybe it would be possible some type of reformulation of rawls’ position that could be congruent with the convention’s philosophy. ronald dworkin makes another proposal to compensate brute luck through an insurance scheme. as it is widely known, to make a distribution of the resources that overcomes the envy test, dworkin proposed an auction. everyone starts with an equal purchasing power (100 clamshells) and people use their clamshells to bid for those resources that best suit their plan of life. at the end of the auction, everyone will be happy with the result because nobody will prefer anyone else’s bundle of goods to their own. if they did prefer a different bundle, they could have bid for it, rather than the goods they did bid for (dworkin, 1981a, 1981b). however, the auction does not resolve the issue brute luck because people are not equal in their capabilities: in the reality people have handicaps, congenitally poor health or other special needs that would mean in some cases extra costs. the solution proposed by dworkin consists of paying an insurance for all those extra costs before the auction, out of the general stock of social resources, and then divide up the remaining resources equally through the auction. we give the disadvantaged enough social goods to compensate for their unchosen inequality in natural assets. if we generalize the insurance system through taxes, we would have some type of welfare regimes as those developed in europe after ii world war. the problem is that this system is not completely consistent with the convention because it understands that although people with disabilities might receive some type of economic aid to compensate for brute luck, it does not change social institutions. consequently, we can say that dworkin's approach to disability corresponds with the medical model. as it is well known, the well renowned work by philippe van parijs, real freedom for all (1995) is considered a libertarian egalitarian normative justification of universal basic income. although the objective of the book is mainly justifying a basic income in the debate between capitalism and communism, van parijs explains his own view about social justice and social institutions. for him a fair society is one that guarantees every member the greatest real freedom: “being free consists in not being prevented from doing not just what one wants to do, but whatever one might want to do” basic income and the rights of persons with disabilities the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 5 (van parijs, 1995: 19). with this definition van parijs tries to solve the slave objection. the happy slave is the slave who modifies his desires to make them coincident with his reality. van parijs does not separate freedom from desires; he separates from the current desires but not from potential desires. he links freedom to potential desire, that is, those things one might want to do. we will be freer if we have more options to do things we might want to do. in consequence, the value that a fair society must protect for van parijs is real freedom. from this idea, he analyzes the principles that must order a society to be fair, that is, a society that maximizes real freedom. van parijs points out three principles: security, self-ownership and a leximin order of opportunities. the libertarian philosophy concerning the state are condensed in the first two principles. though to achieve real freedom, a third principle is necessary, the equality of opportunities, which requires that each citizen must have the greatest possible opportunity to do whatever he or she might want to do. these principles follow a lexicographic order; firstly, the state must guarantee the security, secondly the self-ownership and in last place, the set of opportunities. it does not make sense guaranteeing an equal set of opportunities if security or self-ownership are not guaranteed. however, the priority is soft because the objective is obtaining real freedom and for that, the three elements are necessary. these principles of the theory of justice must be institutionalized. the security demands the rule of law. the second principle, self-ownership, demands the protection of autonomy. and the third principle, the leximin order of opportunities, demands a universal and unconditional basic income for all the members of the society. this is because real freedom is not the freedom to consume, the freedom to choose between different goods, but the freedom to choose among different lifestyles. van parijs, consequently, tries to present a basic income compatible with security and self-ownership as a necessary condition to real freedom. at this point, we could say that this idea of giving opportunities to all people is consistent with the social model defended by the convention on the rights of persons with disabilities. the problem starts if we reduce real freedom understood as the greatest group of opportunities to a financial aspect. the theory is complicated further when van parijs introduces the compensation for inequalities in natural endowments. he uses the concept of undominated diversity, that it is originally of ackerman (ackerman, 1981). this criterion demands unanimity to compensate brute bad luck. as i will try to explain later, this criterion seems incompatible with the social model and, moreover, with the diversity model to understand disabilities. as one can imagine, achieving unanimity in a decision is quite difficult. it seems that this criterion is chosen because it makes the compensation in cases of bad luck difficult. as van parijs says (1995), first, brute bad luck must be compensated, and after, with the remaining resources, a basic income must be distributed; so, when he requires unanimity he is assuring a quantity of basic income different from zero. we can say that a dominates b only if every person has an idea of the good life in accordance with the idea that it is possible to say that a is better endowed than b. therefore, it is necessary that everybody consider someone better endowed. if there is any outlying member in the josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 6 group, that may make the redistribution impossible. we can imagine an individual, x, who is blind. intuitively we could say that we must compensate x because of her bad luck. if y has the same endowment than x with the difference that she sees perfectly, then probably everybody unanimously would prefer the y’s endowment to x’s. however, in that social group is z. z wishes to be blind because she thinks that moving through the city in the darkness is very exciting. z is an outlier, but if she exists, x would not receive any compensation (arneson, 2003: 102-105). van parijs knows this obstacle and demands that the person who declares her preference must know and understand the consequences of having that concrete endowment. with that idea he appeals to an objective criterion that helps us to distinguish authentic preferences from false ones, without saying which criterion it is. basic income is conditioned to the compensation of the inequality of endowments due to bad brute luck and that, in some cases, could make the quantity of basic income zero. van parijs thinks that in liberal societies, that are very diverse, this would not happen because of the requirement of unanimity. he underestimates the circumstances when basic income could be reduced (williams, 2003: 124). van parijs chooses this criterion, to obtain the highest basic income. the unanimity is introduced only with the purpose to make difficult the compensation derived from bad brute luck (rey pérez, 2007). in his more recent works, van parijs has not repeated this scheme focusing mainly on the political and economical viability of universal basic income (van parijs &vanderborght, 2017) but, in my opinion, from a theory of rights and justice, this point is fundamental to be able to accept or reject something like universal basic income. is this view consistent with the social model defended by the convention? furthermore, does it not mean a restriction on the conception of real freedom that is defended by van parijs? from my point of view there is some inconsistency in the argument defended by van parijs when we examine it from the rights of persons with disabilities and the social model. the first part of the argument, the concept of real freedom that van parijs defends linking freedom with the greatest number of opportunities for everybody, fits well with the principles of the convention. the convention, as it has been explained before, wants to eliminate all the obstacles existing in societies that create discrimination against persons with disabilities, which, as such, violate the principle of equality of opportunities. the way to solve these situations is not giving additional benefits to people with disabilities, but changing the social system, the institutions, the social designs and the structures to make real the equality of opportunities. using van parijs’ words, the convention wants that people with disabilities enjoy real freedom, the freedom to do whatever they want to do. however, what it is not consistent with the convention is the second part of the argument offered by van parijs and, furthermore, maybe the way he understands how to distribute the maximum group of opportunities for everybody. the problem is that van parijs understands social justice, at the level of institutions, just in terms of distribution of resources, it is more, in terms of distribution of money. the conception of real freedom would probably fit better with the capabilities approach defended by nussbaum and sen. because if we are talking about opportunities to do whatever you want to do, you not only need resources and money to carry out your life plan, you also need the capabilities to do basic income and the rights of persons with disabilities the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 7 it in a correct way and to have opportunities to succeed in the options chosen. enjoying a basic income is probably a necessary condition, but it is not the only one required to obtain real freedom. following this idea, nancy fraser (2003), for example, argues that social justice cannot be reduced to redistributive aspects. there are also injustices because some cultural or sexual or differently abled groups have not had enough recognition in the public sphere. therefore, distributive policies are not enough to achieve social justice. the excluded or underrepresented groups began to talk about recognition policies many years ago, of which the objective was the recognition of their difference. the two policies are linked to different social movements. the politics of redistribution is usually related to class policies, with the intention of eliminating class differences, while the politics of recognition is assimilated into identity policies, with the purpose of recognizing underrepresented identities due to the existence of a dominant culture. in this sense, the redistributive paradigm studies the socio-economic injustice rooted in the economic structure of society and the recognition paradigm analyses the cultural injustices rooted in the mechanism of representation, communication and interpretation (fraser, 2003). if we follow the redistributive model, the remedy to injustice consists of making a different distribution of scarce resources. in accordance with the recognition model, the solution to injustice is a cultural change, evaluating the difference, the diverse identities and the cultural diversity (see table 1). table 1. politics of redistribution vs. politics of recognition politics of redistribution politics of recognition class policies: eliminate class differences identity policies: recognize underrepresented identities socio-economic injustice rooted in the economic structure of society cultural injustice rooted in the mechanism of representation, communication and interpretation different distribution of resources cultural change to estimate the differences source: own following fraser (2003). however, as fraser has pointed out, this distinction is artificial. it can be useful to make some analytical or conceptual analysis, but the injustices are not only distributive or ones concerning recognition. the injustices suffered by many people have two sides, one economical and another related to recognition. distribution and recognition are two sides from we can analyze social injustice. that is the reason why fraser argues for a concept of justice that includes both sides, the redistributive and the recognition. she does not think that they are alternatives or antithetic visions of social justice. they are two josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 8 sides of the same injustice. and in each circumstance, we must examine which type of economic and cultural injustices are present and how to solve them. iii. basic income, between redistribution and recognition understanding the distinction between economical and recognition or cultural aspects of social justice is useful to evaluate the different policies that try to make real social justice. obviously, there are policies with a deep redistributive bias: for example, the minimum insertion income, the financial support to education for families without resources or a universal health care system have, at first glance, an obvious redistributive purpose. on the other side, there are policies with the purpose of recognizing some groups, like the affirmative institutions that pursue equality between men and women. in these examples, the policies have consequences in the other dimension of social justice. on one side, the insertion income can help to insert some collectives unrecognized culturally like prostitutes or ethnic minorities that do not have the resources to survive; with the money of the insertion income they can take the first steps to achieve the recognition as full members of society. the financial support for education for families with scarce resources have consequences in the recognition policies, because it could help excluded ethnic minorities to have access to superior education. the universal healthcare system could help with the recognition of some groups if, for example, it includes gender reassignment surgery. in the other side, an affirmative discrimination that allows an unrecognized group the access to important positions could contribute to improve its economic position. therefore, any redistributive policy has consequences in the recognition policies and vice versa. basic income is a redistributive policy. its purpose is achieving a fair distribution of resources in society and the main arguments offered have gone in this direction. van parijs in real freedom for all, defends that basic income is the best way to distribute external assets, including among them not only external ones but also jobs in a context of structural unemployment (van parijs, 1995). the purpose of basic income is mainly distributive. but it is also necessary to evaluate its consequences in the field of recognition. some feminist authors have made this related to women (pateman, 2006; zelleke, 2018) and it is necessary to evaluate basic income from the consequences it could have for other unrecognized groups, like people with disabilities. when van parijs exposes his theory, it seems he considers that basic income cannot play an important role with the group of people that are handicapped or have had bad brute luck. that is why previously in arguing for the distribution of an egalitarian universal basic income, he demands an additional distribution to compensate bad brute luck. and here we can point out two comments from the perspective adopted by the convention on the rights of persons with disabilities. the first one, is his preferred way to make that compensation and the concept of compensation itself. the second is the unanimity requirement he introduces. let me explain with more detail. as it has been explained earlier, the convention understands that persons with disabilities have different capabilities and diversity is an element that enriches our basic income and the rights of persons with disabilities the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 9 communities. the solution cannot be limited to give additional resources to people with disabilities, but to change the social institutions in order to give them the same opportunities that other people have. this can include additional resources because probably some types of disabilities may imply additional costs (for example, if a person needs the help of a caregiver) but limiting the changes required to transfers of income manifests misunderstanding the philosophy of the convention. the change that the convention demands in some cases can include a different distribution of resources, but it requires more to be changed: the social institutions designed in accordance with one concrete model of capabilities. this change must occur previous to cash compensations and can reduce them. because people with disabilities do not have to be compensated, they must be valued and integrated in accordance with their diversity. the need of some additional resources in some cases is not a compensation, but actually a requirement of the right to universal accessibility to all institutions, services, and goods. in summary, the perspective adopted by van parijs -that is shared with other egalitarian liberal theories is not consistent with the convention because it interprets the problems of persons with disabilities to enjoy the rights as a problem of income transfers and compensation, and not in terms of the assessment of diversity and the need of changes in social institutions. it can be considered a very limited view of disability. the second critique to van parijs conception about disabilities is the requirement of unanimity to make the compensation. at least, at a conceptual level, unanimity is the opposite of diversity. the recognition approach values diversity, among other reasons, because diversity is one of the requirements of democracy. we cannot require unanimous decisions in order to give recognition to groups that traditionally have been discriminated. unanimity can be the worst face of the dictatorship of majorities and it could mean a real threat to diverse minorities. in accordance with this idea, probably those who are more diverse or whose needs cannot be understand easily by people would be excluded of the distribution of resources argued by van parijs. this clearly goes against the philosophy of the convention that in the preamble says “the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty”. this can be considered the opposite to unanimous criterion in order to give some type of specialized support to people with disabilities. each person is different, and we must value her difference. in practical terms, the unanimity can be a discrimination because it can be a “distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (section 2 of the convention). josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 10 iv. basic income and persons with disabilities all the arguments exposed, does this mean that basic income cannot play any role in the rights of the persons with disabilities? i will try to answer this question in the following. as it was explained before, when we examine a public policy we must study their effects in the two sides of social justice, the redistributive and the recognition. in this case, if universal basic income contributes to the demand of recognition of persons with disabilities or, at least, does not harm it, universal basic income would be a good redistributive policy when we examine it from the perspective of recognition. if basic income harms the recognition of this collective, then it would not pass the test that all redistributive policy must pass if it wants to be consistent with social justice. the effects of basic income from the redistributive perspective are clear. many authors have pointed out how universal basic income prevents poverty, reduces inequalities in societies, and achieves a level of equality of opportunities (rey pérez, 2007; raventós, 2007; van parijs & vanderborght, 2017). these positive effects would be enjoyed equally by people with and without disabilities. the question that is necessary to answer is whether it has some concrete positive consequence in the social recognition of persons with disabilities. one of the objectives of basic income is real freedom, as it was explained earlier. nowadays, the real freedom of persons with disabilities is limited by the able social model design. here basic income can be a way to achieve this objective, although it does not present a complete solution to the problem. with an income guaranteed unconditionally, persons with disabilities have the means -at least, partialto dare to live freely. they receive an initial recognition that can help them to achieve their life plans. a policy like universal basic income whose purpose is to fight against the domination suffered by people forced to work in present societies serves, at the same time, to eliminate the singular model of ability dominance. universal basic income gives people resources to choose their lifestyles without fear of possible reprisals for their options. fighting against economic dominance we may achieve cultural liberation. supporters of basic income used to talk about a new right to a basic income that, for example, has been included in the monterrey’s` universal declaration of emerging human rights (2007). can we say that this right has a universal design? from the perspective that everybody will receive the same quantity of money in the bank account, we can say that the design of this right is universal and, at least at first sight, it does not create any discrimination -direct or indirectagainst people with disabilities. probably it is impossible to think in any right more accessible than this. however, the accessibility of the right can depend of the accessibility of the bank system. if the bank system and the bank accounts have not been designed considering the difficulties some people may have to access to their basic income, that could create some type of discrimination against those people. i am thinking about people with physical or intellectual disabilities that can find problems to access to a bank account. of course, the problem in these cases is not of the right itself, but it is derived the way we guarantee the right through the financial system. the objective of the convention, as it has been basic income and the rights of persons with disabilities the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 11 explained before, is to guarantee the universal access to all the services, goods and benefits of the society and this, of course, includes the bank services. consequently, if we follow the principles of the convention, the bank services might be reformed to give them universal accessibility and there would not be any problem with the right to basic income. and in those cases where the accessibility would be difficult, it would be necessary to offer some support or to force banks to develop the reasonable adjustments needed. however, as i am arguing, these adjustments are not about the right to basic income, but of a service through which we make effective the right. the right to a basic income has not any discriminatory consequence when we examine the essential content of the right. v. conclusion we can conclude that a redistributive institution like universal basic income can have positive consequences in the recognition of the group of persons with disabilities because it makes greater the opportunities to make whatever they want to do. nevertheless, as a redistributive institution, the extension in terms of recognition is very limited. basic income, in the context of the rights of persons with disabilities, needs to be complemented with other policies that put the accent on the diversity of capabilities to convert the income in freedom options. basic income is a first step, but it is not the definitive step to reach the full recognition of people with disabilities in our societies. references ackerman, b. (1981). social justice in the liberal state. new heaven: yale university press. arneson, r. j. (2003). should surfers be fed? in a. reeve & a. williams, eds., real libertarianism assessed. political theory after van parijs. new york: mac millan, pp. 95-110. https://doi.org/10.1057/9780230524293_6 asís, r. de (2013). sobre discapacidad y derechos. madrid: dykinson. cuenca gómez, p. (2012). sobre la inclusión de la discapacidad en la teoría de los derechos humanos. revista de estudios políticos, 158, pp. 103-137. cuenca gómez, p. (2016). derechos humanos y discapacidad. de la renovación del discurso justificatorio al reconocimiento de nuevos derechos. anuario de filosofía del derecho, xxxii, pp. 53-83. dworkin, r. (1981a). what is equality? equality of welfare. philosophy & public affairs, 10 (3), pp. 185-246. dworkin, r. (1981b). what is equality? equality of resources. philosophy & public affairs, 10 (4), pp. 283-345. fraser, n. (2003). social justice in the age of identity politics: redistribution, recognition, and participation. in n. fraser & a. honneth, redistribution or recognition? a political-philosophical exchange. london: verso, pp. 7-109. nussbaum, m. (2007). frontiers of justice. disability, nationality, species membership. london: harvard university press. https://doi.org/10.1057/9780230524293_6 josé luis rey pérez the age of human rights journal, 12 (june 2019) pp. 1-12 issn: 2340-9592 doi: 10.17561/tahrj.n12.1 12 palacios barreiros, a. (2008). el modelo social de discapacidad: orígenes, caracterización y plasmación en la convención internacional sobre los derechos de las personas con discapacidad. madrid: cinca. palacios, a. y romañach, j. 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(2018). las personas con discapacidad en la constitución. ¿es imprescindible su reforma? in m.i. álvarez vélez & c. vidal prado, eds., la constitución española 1978-2018. madrid: lefebvre, pp. 407-421. rodríguez del pozo, p., barranco avilés, m.c., al ali, k. & de asís, r. (2017). implementing the international convention on human rights of persons with disabilities in qatar: from charity to human rights, the age of human rights journal, 9, pp. 1-17. https://doi.org/10.17561/tahrj.n8.1 van parijs, p. (1995). real freedom for all. what (if anything) can justify capitalism. oxford: clarendon press. van parijs, p. & vanderborght, y. (2017). basic income. a radical proposal for a free society and a sane economy. cambridge: harvard university press. https://doi.org/10.4159/9780674978072 zelleke, a. (2018). work, leisure and care: a gender perspective on the participation income. the political quarterly, 89 (2), pp. 273-279. https://doi.org/10.1111/1467-923x.12518 https://doi.org/10.17561/tahrj.n8.1 https://doi.org/10.4159/9780674978072 https://doi.org/10.1111/1467-923x.12518 microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 37 blasphemy as a thick concept oscar pérez de la fuente* abstract: thick concepts have been central in metaethical debates over the last few decades, for instance in the controversy between cognitivism and non-cognitisivism or in the fact/value distinction. they are characterised as world guided, action guiding and community shared. in this paper, thick concepts are used to analyse case law on blasphemy from the european court of human rights. when conducting this analysis, the test of civility proposed by habermas and rawls will also be applied. public reason obligates the use of reasons accessible to all, that is to say not with a particular/thick meaning, in the public sphere. keywords: blasphemy, religious insult, hatred for religious reasons, test of civility, thick concepts summary: 1. free speech and religion. 2. what are ‘thick concepts’?. 2.1. thick concepts as ‘world guided’. 2.2. thick concepts as ‘action guiding’. 2.3. thick concepts as ‘community shared’. 2.4. some objections to thick concepts’ approach. 3. blasphemy in the european court of human rights case law. 3.1. x ltd. and y v. united kingdom 7 may 1982. 3.1. a) test of thick concepts. 3.1. b) test of civility. 3.2. choudhury v. united kingdom 5 march 1991. 3.2. a) test of thick concepts. 3.2. b) test of civility. 3.3. case otto-preminger institut v. austria 20 september 1994. 3.3. a) test of thick concepts. 3.3. b) test of civility. 3.4. wingrove v. united kingdom 25 november 1996. 3.4. a) test of thick concepts. 3.4. b) test of civility. 3.5. samina v. sweden 20 october 2011. 3.5. a) test of thick concepts. 3.5. b) test of civility. 3.6. case i.a. v. turkey 13 september 2005. 3.6. a) test of thick concepts. 3.6. b) test of civility. 3.7. e.s. v. austria, 25 october 2018. 3.7. a) test of thick concepts. 3.7. b) test of civility. 4. some conclusive remarks. 1. free speech and religion the crime of blasphemy has a long history in different societies. as dacey notes the justification of this crime has changed over time in the west. the first phase, in ancient times, blasphemy was a direct verbal attack on the divine. the second phase, in the middle ages, blasphemy was considered as a seditious challenge to the sanctity of law, the public order or the common good. the third phase, in the modernity, blasphemy is understood as an offence against the sensibilities, rights or dignity of individual religious believers (dacey, 2012, 18). traditional justifications of blasphemy, as a crime, want to avoid some evils that usually are associated with its tolerance. levy exposes some of these bad consequences: a) shedd doubts on orthodox religious truth; b) endanger the unity of society; c) may lead to public disturbances (levy, 1995, 3). the link between freedom of religion and free speech is deep and relevant. blasphemy is an institution with an old history in different religions. in other times, its importance came from maintaining religious orthodoxy and * lecturer in philosophy of law, instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain (oscar@der-pu.uc3m.es). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 38 blasphemy as a thick concept social peace. nowadays blasphemy is an old-fashioned crime in europe because of the growing secularism and the separation between church and state. some behaviours are still criminalised to protect minorities from religious insults and the incitement of religious hatred. there is a jewish/christian tradition on blasphemy based on biblical interpretation, but this is difficult to translate into the islamic religion, which uses different concepts. levy affirms that, in jewish thought, blasphemy invariably denoted verbal abuse of god (levy, 1995, 11). dacey clarifies that the biblical, grego hebraic concept of a direct verbal affront to the divine has no precise equivalent in islamic tradition, which has been more concerned with idolatry and fidelity to doctrinal truth (dacey, 2012, 3). in islam, there is a special protection of the honour of muhammad, the founder of that religion. dacey sates that in the context of the unique social relationship between muslims and the prophet muhammad, however, “insult” had special significance. according to the traditional understanding, while muhammad was a prophet, tribal leader, war chief, and moral arbiter, he was not divine. he was a human being whose honour had to be protected by public expressions of loyalty and esteem. in traditional islamic law, insulting the prophet or allah was the crime of sabb. committed by muslims, it constituted ridda, or apostasy, a repudiation of the faith. committed by non-muslims, it violated the terms of their status as dhimis, tolerated and protected second-class subjects of the islamic state (dacey, 2012, 3).1 blasphemy could be defined as the “act of expressing contempt or a lack of reverence for god or sacred things” (us commission on international religious freedom, 2014, 1). for the purposes of this research, laws prohibiting blasphemy (“blasphemy laws”) include provisions that sanction insulting or defaming religion and seek to punish individuals for allegedly offending, insulting, or denigrating religious doctrines, deities, symbols or “the sacred,” or for wounding or insulting religious feelings (fiss, kestenbuam, 2017, 5). in a report of the venice commission in 2010, the following conclusions were reached: a) the offence of blasphemy should be abolished (which is already the case in most european states) and should not be reintroduced; b) that it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component; c) the incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all european states. in the commission’s view, it would be appropriate to introduce an explicit requirement of intention or recklessness (venice commission, 2010, 19-30, 32). “blasphemy means speaking evil of sacred matters. where organised religion exists, blasphemy is taboo” (levy, 1995, 3). the central issue is whether it is the role of the state to punish this offence or whether it should go unpunished. prosecution for 1 the concept of blasphemy in islam is a complex issue. it has been analysed for instance in the following works: soage, 2006, 363-369; nassera zini, 2015; marshall, 2012; forte, 1994, 27-68; nitisor, 2007, 69-79. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 39 oscar pérez de la fuente blasphemy has often been “treason” against intellectual liberty and freedom of religion. over the centuries, the sanctions against blasphemy have inhibited, not only religious, but artistic, political, scientific and literary expression (levy, 1995, 569). much of the most plausible defence of blasphemy law is that it is necessary to protect religious believers from suffering offence to their feelings (jones, 1980, 133). nowadays the crime of blasphemy doesn’t pass the test of civility. it could be considered a test of civility by which an act should be accessible to all —habermas— or we accept and we think others reasonable accept (rawls, 1996, 217); this means it does not have a particular meaning. this is especially considered in cases of public reason justifications from religious or philosophical comprehensive doctrines in rawlsanian terms (rawls, 220-222). this crime has a particular meaning that could not be translated to civil terms. the offence to god, sacred or saint persons is a notion that might not be accessible to everyone because it has a particular thick meaning. the laws of blasphemy have almost disappeared in european countries, but the offence to religious feelings –so named religious insultand religious hatred or religious defamation often remain as crimes. these institutions, like religious insult or religious hatred, could be also explained as thick concepts. secularism expresses the need for legal choices to be based on secular public reasons, that is, on reasons that are accessible for all, quite apart from their religious beliefs. religiously grounded reasons have to be “translated” into secular ones (sajó, 2008, 626). this idea is also defended by habermas and rawls and is connected with the notion of public reason. this is one of the core values of liberalism that is based on the separation between church and state and the state neutrality between different religions or “comprehensive moral doctrines”’(rawls, 1996, 150-158) in rawlsian terms. habermas explains that “the principle of separation of church and state obliges politicians and officials within political institutions to formulate and justify laws, court rulings, decrees, and measures exclusively in a language that is equally accessible to all citizens” (habermas, 2014, 122). this means that religious citizens have to translate their convictions to secular values. habermas tells “this only calls for the epistemic ability to consider one’s own religious convictions reflexively from the outside and to connect them with secular views. religious citizens can certainly acknowledge this ‘institutional translation proviso’ without having to split their identity into public and private parts the moment they participate in public discourses” (habermas, 2014, 130). in the rawls’ view there is a link between public reason and the duty of civility. both concepts imply that there are some epistemic limitations to political justification. rawls points out that “public justification is not simply valid reasoning, but an argument addressed to others: it proceeds correctly from premises we accept and think others could reasonably accept to conclusions we think they could also reasonably accept. this meets the duty of civility, since in due course the proviso is satisfied” (rawls, 1997, 765).2 2 as a definition of the duty of civility as a part a public reason, rawls points out: “this means that each of us must have, and be ready to explain, a criterion of what principles and guidelines we think other citizens the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 40 blasphemy as a thick concept the framework is not complete with the different versions of secularism; habermas had defended the notion of post-secularism that fits better with the current situation.3 in europe nowadays, there are contrasting views on religious and cultural pluralism. there is a struggle between different types of multiculturalists (parekh, 1990, 2000; 2008; modood, 2007, 2010) and different kinds of secularist (sajó, 2008, 2009; zucca, 2012) and postsecularist (habermas, 2005, 2008, 2014; taylor, 2007, ungureanu, 2016).4 they are all an interpretation of enlightenment with significant varieties and look for how to manage equality and difference in a democratic society with more emphasis in one of these values. 2. what are ‘thick concepts’? naturalistic fallacy was first explained by hume in the treatise of human nature with these words: “when of a sudden i am surpriz’d to find, that instead the usual copulations of propositions, is, and is not, i meet with no proposition that is not connected with an ought, or an ought not.”5 however, in another book called concerning human understanding and concerning the principles of morals, he talks about concepts, such as: “discretion, caution, enterprise, industry, assiduity, frugality, economy, good sense, prudence, discernment” (hume, 1988, 242) . the peculiarity of these nouns was that they “force an avowal of their merit” (hume, 1988, 242) . this is the first precedent of thick concepts’ notion. the notion of thick concepts first appeared in the book ethics and the limits of philosophy of williams, which was first published in 1985 (williams, 2011). there is a precedent of thick concepts notion in hare’s book, language of morals, first published in 1952, with the notion of value-words as “words in which the evaluative meaning is secondary to the descriptive” (hare, 1970). (who are also free and equal may reasonable be expected to endorse along with us” (rawls, 1996, 226). rawls also explains the traits of public reason with these words: “the justices cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. those they must view as irrelevant. equally, they cannot invoke their or other religious or philosophical views. nor can they cite political values without restriction. rather, they must appeal to the political values they think belong to the most reasonable understanding of the public conception and its political values of justice and public reason. these are values that they believe in good faith, as the duty of civility requires, that all the citizens as reasonable and rational might reasonably be expected to endorse. (rawls, 1996, 236). 3 habermas criticises the construction of a “secularization as a kind of zero-sum game between the capitalistically unbridled productivity of science and technology, on the one hand, and the conservative forces of religion and the church on the other hand. gains on one side can only be achieved at the expense of the other side and by liberal rules, which act in favour of the driving forces of modernity. this image is inconsistent with a postsecular society which adapts to the fact that religious communities continue to exist in a context of ongoing secularization” (habermas, 2005, 239). 4 although taylor did not use the term postsecular to describe his own position, it could be deduced that his thought could be included under this label. 5 hume continued: “this change is imperceptible; but is, however, of that last consequence. for as this ought, or ought not, expresses some new relation or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it”. (hume, 1990, 469). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 41 oscar pérez de la fuente ‘thick’ —or ‘substantive’ (scheffler, 1987, 414)— concepts are distinguished from ‘thin’ concepts like ‘right’ or ‘good’. among concepts that have been regarded as thick are “treachery, promise, brutality, courage, coward, lie, gratitude, lewd, perverted, rude, glorious, graceful, exploited, and, of course, many others” (eslund, 2011, 25). these concepts were analysed by the metaethical debates during the last decades. they are considered as a cognitivist argument (mcdowell, 1979, 1984; dancy, 1995) in front of the non-cognitivism (hare, 1963, 1970, 1985; blackburn, 1990, 1992; väyrynen, 2003), and against the fact-value distinction (moore, 1993). they are linked with the revitalisation of the ethics of virtue (slote, 1995, 2011; hursthouse, 2001; foot, 2002; swanton, 2005). this paper looks to present a version of the thick concepts that could be suitably applied in the rights balance on free speech issues, which is sometimes viewed as especially vague and indeterminate. thick concepts are at the same time: a) ‘world guided’, b) ‘action guiding’ and c) ‘community-shared’. in the following sections, firstly, these characteristics are analysed and, secondly, they are applied to the european court of human rights blasphemy case law. 2.1. thick concepts as ‘world guided’ ‘world guidedness’ and the degree of empirical content differences are consequences, or even causes, of the deeper difference between thin and thick concepts; the former stemming from abstract ethical ideas and the latter reflecting the distinctive character of particular social goods, such as: ‘coward’, ‘lie’ ‘betrayal’, ‘brutality’, ‘honour’ and ‘gratitude’ (scanlon, 2003, 276-277). examples of thin concepts, when no anthropological involvement is required, include: ‘right’, ‘good’, ‘desirable’ and ‘rational’(benbaji, fisch, 2004, 4). such terms are evidence that thin concepts are evaluative rather than descriptive. by contrast, thick concepts are words that, by their nature, are more heavily descriptive than evaluative. this does not, however, mean that they lack evaluative meaning. for instance, the words ‘tidy’ and ‘industrious’ are usually used to commend. these are called, in hare’s terminology; value-words and it would be erroneous to consider them purely descriptive. they are value-words in a less full sense than ‘good’ (hare, 1963, 24-25; 1970, 121). on this descriptive aspect of thick concepts, williams states that their application guides how the world is. this means there is a general agreement as to how the concept applies to usual situations; however, irresolvable disagreement continues to reign in a marginal number of cases (williams, 2011, 156). williams expressly denies that agreement is sufficient for world-guidedness, and he does not seem to regard actual agreement as strictly necessary either (scheffler, 1987, 418). for foot’s analysis, he used the example of the word ‘rude’: a) it can only be used where certain descriptions apply; b) if “thinking a thing rude” is to be described as having a particular attitude to it, then having an attitude presupposes, in this case, believing that certain conditions are met; c) it is an evaluative word; d) it expresses disapproval; f) it the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 42 blasphemy as a thick concept is meant to be used when an action is to be discouraged; g) it implies that other things being equal the behaviour to which it is applied will be avoided by the speaker; h) it is a condemnatory word; i) it has the kind of characteristics upon which non-naturalistic fasten (foot, 1958, 507-508). there is a combination of description and evaluation, a property and an attitude: “not mere evaluation, of course, but evaluation in the light of the relevant description (the attitude is adopted to the property-bearer for having the property)” (dancy, 1995, 263). thick concepts encompass a property and an attitude that is either pro or con. the aristotelian virtues, for instance, are thick pro-concepts and the vices are thick conconcepts (dancy, 1995, 263). the term ‘world-guided’ suggests that what distinguishes thick concepts is a kind of objectivity, that judgements using these concepts can express knowledge because (in virtue of their thickness) they make claims about the world –claims that are made true by (hence their proper use “guided by”) what the world is like (scanlon, 2003, 276). cognitivist claimed for their examples that the interconnection between evaluation and description was beyond non-cognitivism capturing. non-cognitivism had to see the description as essentially independent of the evaluation in way that made it always accessible for the outsider (scanlon, 2003, 276). 2.2. thick concepts as ‘action guiding’ thick concepts are guided by the world and this implies there is a descriptive aspect. there is also an evaluative aspect to thick concepts that usually implies a judgement, an attitude and some kind of action. moore explains that the incorporation of thick concepts into our daily lives provides us with a rationale for our actions (moore, 2006, 135-36). this means that thick concepts are ‘action guiding’ and are intrinsically related to the reasons for action (williams, 2011, 155). they comprise both a tie to reasons and a tie to empirical classification (gibbard, 2003, 288). with regard to the evaluative aspect, moore clarifies the application of a thick concept involves evaluating a given situation, making a judgement based on the circumstances as we perceive them to be, and being able to stand corrected if we have erred when coming to our conclusion (moore, 2006, 135). these reasons for action could include acts and omissions. moore highlights an example citing the concept of blasphemy, explaining that properly understanding what blasphemy is gives a reason not to blaspheme (moore, 2006, 136). to understand what ‘action guiding’ is, gibbard makes a distinction between externalism and internalism on reasons [for action]. an externalist would affirm that an act can only be cruel if it is so deplorable that everyone has reason to abhor it and to shy away from committing it (gibbard, 2003, 303). on the other hand, an internalist would say: an act is cruel if the people forming a community that uses the concept cruel have reason to recoil at the thought of and, as a consequence, refrain from performing those the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 43 oscar pérez de la fuente acts. it is irrelevant whether or not the persons committing the acts view them as cruel (gibbard, 2003, 303). in gibbard’s explanation, williams is an internalist who thinks that tormenting a cat is cruel even if the tormentors do not recognise their actions are cruel (gibbard, 2003, 303). the interesting point is that, from the internalist point of view, the importance of thick concepts cannot be underestimated for using and understading concepts within a certain speakers’ community. 2.3. thick concepts as ‘community shared’ ‘community shared’ implies thick concepts need a social world behind them, which gives meaning for agreeing or disagreeing in a specific case. analytic philosophers have queried the difference between thick concepts, which are context-dependent, and thin concepts, which are context-neutral (flakne, 2005, 116). at this point, it is appropriate to remember that moral standards could change in different societies and during different times. concepts like ‘cruel’, ‘brutal’, ‘dishonest’, ‘chaste’, ‘obscene’ are thick concepts that cultures will not always share (gibbard, 2003, 288; hare, 1963, 25). in ethics and the limits of philosophy, williams contrasted two ways of looking at thick judgements in a hypetraditional society: the objetivist and non-objetivist models. the ‘objectivist model’ is the search for truth about values by members of any given society in a local way (williams, 2011, 163). the ‘non-objectivist model’ is the ethnographic approach (gibbard, 2003, 301), in which the judgements of the members of a society are part of their way of living and create a cultural belonging that unites them. williams asks whether or not when they use these concepts, they express knowledge about the world. he argues that when the appropriate criteria are used by certain members of the society, they will increase their knowledge (williams, 2011, 163-164; gibbard, 2003, 301). according to moore, thick ethical concepts can be viewed in two ways: an engaged way and a disengaged way. the engaged way comprises not only the theoretical application of the concept, but also the practical application in one’s thoughts about the world and in one’s conduct. to understand a thick ethical concept in the disengaged way is to recognise only when the concept would be theoretically applied correctly by oneself and by others (moore, 2006a, 137). moore concludes that ethical knowledge is dependent on “the local perspectives or idiosyncrasies of enquirers” whereas scientific knowledge may not be (moore, 2006b, xvii). the applicability of a thick concept, for example: bravery, can clearly be established by those who share a common moral culture. using bravery as an example to share a the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 44 blasphemy as a thick concept culture means being “sentimentally educated” or linguistically inculcated to recognise the features of a particular thick concept (flakne, 2005, 118). another example is the sabbath. people who are not jewish have no difficulty in understanding this concept in the disengaged way. however, only a jewish person recognising an obligation to keep the sabbath can appreciate the concept in the engaged way. they can, therefore, by say to live by the concept (moore, 2006a, 137). the test of thick concepts consists of different levels: a) ‘world guided’: the use of a concept, in a particular context, reflects what the world is like. this has strong metaethical and philosophical implications, but it makes sense as a statement within a certain context. b) ‘action guiding’: there are two main reasons for action: internalism and externalism. an externalist would affirm that an act has certain quality if everyone has reason to abhor it and to shy away from committing it. an internalist would say: an act has a certain quality if the people forming a community that uses the concept and have reason to recoil at the thought of and, as a consequence, refrain from performing those acts. it is irrelevant how the persons committing the acts view them. it must be shown whether the use of a concept in a particular context implies a reason for action to everyone -externalistor a certain community -internalist-. c) ‘community shared’: there are two main positions: engaged and disengaged. the engaged way encompasses not only the theoretical application of the concept, but also the practical application in one’s thoughts about the world and in one’s conduct. the disengaged way is to recognise only when the concept would be theoretically applied correctly by oneself and by others. it must be shown whether the use of a concept, in a particular context, implies that someone ‘lives the concept’ in a theoretical and practical way -engagedor only in a theoretical way -disengaged-. thick concepts are a useful tool to analyse the use of certain concepts in a judicial context. the different positions on thick concepts have different philosophical bases and shed light on how certain members of the judiciary view the world. this has led to criticisms of thick concepts being developed. 2.4. some objections to thick concepts’ approach the first well-known objection to thick concepts came from oscar wilde, who responded to an accusation of blasphemy during his trial by affirming: “ blasphemy, sir, is not one of my words”. by neither accepting or denying that his actions were blasphemous, wilde was able to avoid misapplication of the normative judgement associated with blaspheming (enoch, toh, 2013, 260). commenting on this wilde’s phrase, gibbard affirms that disagreement is the key because blasphemy has a precise sense only when we can agree or disagree, but if it is not possible to do either, the term is not one of our words (gibbard, 2003, 289). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 45 oscar pérez de la fuente thick concepts are understood within a speakers’ community, but there are people outside this community who may be doubful about the application of thick concepts to certain cases (gibbard, 2003, 304; flakne, 2005, 127). thick concepts are complex, fluid and mobile as they are a mix of religious, cultural and ritual history and so cannot be associated with only one attitude (blackburn, 1992, 296). first, they are “variableattitude” concepts, since they call for different attitudes on different occasions. second, they are “multi-attitude” concepts. they can ground, or call for, more than one attitude at the same time) (dancy, 1995, 265). finally, there is an amalgam view, according to blackburn. this means that the attitude and the description infuse each other, so that at the end, in the repertoire of the mature speaker, the two elements are no longer distinguishable (blackburn, 1992, 298). väyrynen presents the category of objectionable concepts that he defines as “embodying values that one thinks ought not to be endorsed” (värynen, 2003, 569). the idea is that there is no consensus behind thick concept evaluations and this has several implications that could be summarised as their uselessness and limited practical relevance. väyrynen points out that “those who use such words as lewd, lascivious and chaste and unchaste typically accept a particular sort of outlook on sexuality which many other people reject because they regard the way of thinking conveyed by the typical uses of these terms as failing to draw genuine evaluative distinctions”(värynen, 2003, 569). in the next section some cases of the european court of human rights on free speech and religion under the thick concepts analysis will be studied. 3. blasphemy in the european court of human rights case law there have been several cases on blasphemy and religious insult in the european court of human rights case law. these cases are explained and analysed in this section with the application of the test of thick concepts and the test of civility. the cases have been ordered chronologically, bar the cases of samina v. sweden, i.a. v. turkey and e. s. v. austria, where the order has been inverted to enable the latter two to be analysed at the same time given their similar content. 3.1. x ltd. and y v. united kingdom 7 may 1982 in 1976, gay news, a british newspaper targeted at the gay community, printed professor james kirkup’s “the love that dares to speak its name”: a poem describing a roman centurion’s erotic fantasies about the body of jesus immediately after his death (mortensen, 1994, 413). the sexuality of sacred persons is a taboo. in 1976, there were social and religious prejudices to homosexuality. this issue relates, however, to a poem, with literary aspects, aimed at a gay audience, not the general public. as levy points out: “the centurion, in the discreet phrasing of an appellate judge, describes ‘in explicit detail acts of sodomy and fellatio with the body of christ’” (levy, 1995, 537). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 46 blasphemy as a thick concept for the court it was clear that this was an offence to religious feelings and there was a need to protect them by law, even criminal law. the court said: “if it is accepted that the religious feelings of the citizen may deserve protection against indecent attacks on the matters held sacred by him, then it can also be considered as necessary in a democratic society to stipulate that such attacks, if they attain a certain level of severity, shall constitute a criminal offence triable at the request of the offended person”.6 3.1. a) test of thick concepts on thick concepts as ‘world-guided’ application to this case, we can affirm that sexuality of sacred persons is a taboo. the link of christ, even in a literary phantasy, with homosexuality could be considered offensive for certain sectors. this was a case from the 70’s and it could analysed with the prejudices against homosexuality during that time. the case was based on a poem about a centurion that includes an erotic fantasy with the body of christ. it is a literary exercise that expresses the feelings of a third person, not christ himself. however, some people could criticise that this is blasphemous because a sacred person was not treated with the proper respect, but this could be controversial point. as an example of the world as it is, this poem could be considered blasphemous, with a degree of possible disagreement based on the social consideration of homosexuality. on thick concepts as ‘action-guiding’, if someone really embraces the concept of blasphemy, this must imply not to blaspheme. in this case, the point is if the alleged offence really justifies the restriction of the speech. an externalist could maintain that this case is not necessarily action-guiding because “not everyone” has a reason not to blaspheme. the case is a literary work based on a historical personage. however, an internalist who uses the concept of blasphemy could affirm, in this case, the figure of christ is not treated with the proper respect as sex with sacred persons is taboo. on thick concepts as ‘community-shared’, certain believers could find this poem offensive and highly blasphemous, but other believers and non-believers may not necessarily find it so. in this thick concept in a disengaged way application, one could understand this could be a controversial case of blasphemy for certain sectors of christianity. on the other hand, this thick concept in an engaged way application, for those who lived the concept of christian blasphemy, could be considered offensive, but this will depend heavily on social prejudices on homosexuality. 3.1. b) test of civility a poem with an erotic fantasy involving a roman centurion and christ. this is literature, which expresses the feelings of third person: a centurion. the offensiveness 6 x ltd. and y v. united kingdom app no 8710/79 (echr, 7 may 1982). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 47 oscar pérez de la fuente stems from the fact that one person is considered sacred by the believers, and, in their opinion, there is a kind of attribution that is not appropriate. this reason, however, is not accessible to all, rather it has a specific meaning in specific religious context. the right to free speech and criticism should be predominant 3.2. choudhury v. united kingdom 5 march 1991 salman rushdie wrote a book called the satanic verses and it was considered offensive by the muslim community. an iran religious leader threatens to kill the author. the writer received the support of the great sectors of the western societies. on the content, parekh explains that “the satanic verses is thus a work of fantasy, not of pure fiction, of an imaginatively reinterpreted but not a radically reconstituted reality” (parekh, 1990, 697). we can find an example of controversial parts: “muhammad is called a ‘smart bastard’, a debauchee who, after his wife’s death, slept with so many women that his beard turned ‘half-white’ in a year. muslims deeply respect bilal, the emancipated black slave who was the first convert to islam. here, he is an ‘enormous black monster, with a voice to match his size’”(parekh, 1990, 697). there is another example: “there is also a brothel scene in which twelve whores take the names of muhammad’s wives. rushdie has argued that it was intended to provide a profane antithesis to (and thus to highlight and accentuate) the holy. but since the holy has been treated in a mocking manner throughout the novel, the brothel scene cannot be its antithesis; rather, it is a further expression of the same approach” (parekh, 1990, 697). levy points out, regarding the most controversial point on this issue, that “attributing the koran to human composition indisputably constitutes blasphemy as a matter of islamic law. yet rushdie went further, if ambiguously, by allowing the inference that satan was the real author of the koran, at least of some verses” (levy, 1995, 560). on the satanic verses style, mortensen explains: “the general tone of the book was critical of islam: it used derogatory names for the prophet muhammad, it denounced the islamic moral system and, throughout, rushdie made liberal use of coarse language” (mortensen, 1994, 414). the european court found against the applicants —british muslim minorities representatives— when it states that “the freedom of article 9 of the convention may extend to guarantee a right to bring any specific form of proceedings against those who, by authorship or publication, offend the sensitivities of an individual or of a group of individuals. the commission finds no indication in the present case of a link between freedom from interference with the freedoms of article 9 para. 1 of the convention and the applicant’s complaints” (mortensen, 1994, 414). in this case, the key question was how is content relating to a venerated person of a religion offensive when: a) there is a minority of believers of that religion in that country; b) the then current national blasphemy law only protected christians. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 48 blasphemy as a thick concept 3.2. a) test of thick concepts as a ‘world-guided’ thick concept analysis, the point here is whether blasphemy could extend to offences against muslim believers. the legal concept of blasphemy at that time was only applicable to the dogmas of the church of england, the official religion in the united kingdom. however, could someone who uses the concept of blasphemy also include offences to other religions’ believers, who are present in the british society? if blasphemy is a proper thick concept, then it has a descriptive element that explains the world as it is and also has evaluative content. the satanic verses were not seen as blasphemous by the majority of british society, however there was a degree of disagreement from the muslim minority. in this context, is it blasphemous to divulge details about the imagined sex and private life of the muslim prophet muhammad in a literary work? for a non-muslim it is unlikely to be the case, but muslims could find this offensive. as ‘action-guiding’ thick concept, this blasphemy resulted in great protests by muslim minorities in western europe, particularly in british society. they called for equality and neutrality between religions on prosecution of blasphemy. this also resulted death threats from an iranian leader to the author, salman rushdie. on the externalist approach, it could be seen that “not everyone” has a reason not to blaspheme. this case was a literary work about a historical personage. on the internalist approach, it depends on what is the community of reference. for society as a whole, satanic verses were not under the concept of blasphemy, however the muslim minority affirmed everyone who blasphemed in this way, would have a reason not to blaspheme. it is a thick concept that is ‘community-shared’ by believers and not shared by non-believers. the particularity of this case is the believers are a minority in the society and the blasphemy law only protects offences against the majoritarian religion. there is a problem of neutrality. the case law of the echr is especially sensitive with the offence of the religious feelings of the majority of the society, but not necessarily with the minority. this is a kind of legal moralism. on the thick concept disengaged way analysis, it could be understood, but not necessarily shared, that certain ironic literary portraits of religious figures could be seen as offensive for certain minorities. on the thick concept engaged way analysis, for those who live the muslim blasphemy concept, this is blasphemous and a lack of the proper respect of a venerable figure of their religion. 3.2. b) test of civility this case was portrayed in a novel that criticised and aired on the side of irony towards islam and the figure of the prophet muhammad. it was a literary attack on the intimacy of a venerable figure of a particular religion. the restriction of speech is not a reason accessible to all, it is a particular reason. the right to free speech and criticism should be predominant. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 49 oscar pérez de la fuente 3.3. case otto-preminger institut v. austria 20 september 1994 it is a and iconoclast film about christianity. the main characters are sacred persons that are sarcastically portrayed.7 it’ is and experimental film, shown in “art cinema”, addressed to a small audience. the announcement is quite clear on the characteristics of the film. the main point of the dissenting opinion of the case is “this audience, moreover, had sufficient opportunity of being warned beforehand about the nature of the film”.8 and “it thus appears that there was little likelihood in the instant case of anyone being confronted with objectionable material unwittingly”.9 the ruling of the european court considered the seizure and forfeiture of the film by the national authorities lawful. the justification for the ruling was the protection of the religious feelings of the majority of the population. the sentence said “the court cannot disregard the fact that the roman catholic religion is the religion of the overwhelming majority of tyrolean. in seizing the film, the austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner”.10 3.3. a) test of thick concepts as ‘world-guided’ thick concepts analysis, this is an interesting case because is a film with a type of parody or ironic caricature of sacred persons for christianity. they are not treated with the proper respect according to certain sectors. under this view, this could be considered blasphemous for certain public, but not necessarily shared by the society as whole. as ‘action-guiding’ thick concepts analysis, the question is whether this case of blasphemy should be legally prohibited or regulated in some way. the european court found in favour of the legal prohibition. it is interesting that the dissenting opinion considered it lawful to exhibit this film but restrict it’s viewing to adults, in an ‘art cinema’ exhibition, and provide proper warnings of its content. this has the consequence that from the externalist approach “not everyone” could consider this case blasphemous and therefore they should not blaspheme. from the internalist approach, within a christian community, this has the meaning of blasphemy and so not to blaspheme. 7 this the description of the play that was done in the sentence “the play portrays god the father as old, infirm and ineffective, jesus christ as a “mummy’s boy” of low intelligence and the virgin mary, who is obviously in charge, as an unprincipled wanton. together they decided that mankind must be punished for its immorality. they reject the possibility of outright destruction in favour of a form of punishment which will leave it both “in need of salvation” and “capable of redemption”. being unable to think of such a punishment by themselves, they decide to call on the devil for help.” otto-preminger institut v. austria app no 13470/87 (echr, 20 september 1994). 8 ibid, dissenting opinion 9 ibid, dissenting opinion. 10 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 50 blasphemy as a thick concept as thick concepts community-shared analysis, this is the reason used by the court to restrict the freedom of speech. it is a version of legal moralism, the protection of the beliefs of the majority of the citizens in that region of austria. the european court affirmed that there was a “pressing social need for the preservation of religious peace; it had been necessary to protect public order against the film”.11 from thick concepts disengaged way analysis, this case could be considered offensive for certain sectors, but not necessarily by all the population because is an ironic and artistic representation. from the thick concepts engaged way analysis, those who live the christian blasphemy concept could find this case offensive to certain degree. 3.3. b) test of civility this is a satyricalsatirical film of “art cinema” on the relevant figures of the christianity. what is offensive is the caricature of persons considered sacred, but this is a particular reason that is not accessible to all. the right to free speech and criticism should be predominant. 3.4. wingrove v. united kingdom 25 november 1996 the applicant, mr. nigel wingrove, is a film director and did a video work called vision of ecstasy, inspired in the life and writings of st. teresa de avila. the video describes erotic intimacy between st. teresa and christ and other actors. it is a version of the life of st. teresa that contains an element of erotic intimacy. for some people this is blasphemous, an offence to the saints or sacred persons. for this case it is important that in the united kingdom there was a blasphemy law, until 2008, only for the christian religion. this is because the church of england is the official religion. this was a problem of religious neutrality of the state. the european court recognizes that “the uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the united kingdom does not detract from the legitimacy of the aim pursued in the present context”.12 on the legitimacy of the crime of blasphemy, the court had accepted that “respect for the religious feelings of believers can move a state legitimately to restrict the publication of provocative portrayals of objects of religious veneration”.13 the freedom of creation and art is an important value. the possibility of criticism is fundamental in a democratic society. however, the key point, in the balance between harm and freedom, is when could something be offensive. it is a question of interpretation and a matter of degree. the european court explains that: “as regards the content of the law itself, the court observes that the english law of blasphemy does not prohibit the expression, in any form, of views 11 ibid. 12 wingrove v. united kingdom app no 19/1995/525/611 (echr, 25 november 1996). 13 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 51 oscar pérez de la fuente hostile to the christian religion. nor can it be said that opinions which are offensive to christians necessarily fall within its ambit. as the english courts have indicated it is the manner in which views are advocated rather than the views themselves which the law seeks to control. the extent of insult to religious feelings must be significant, as is clear from the use by the courts of the adjectives “contemptuous”, “reviling”, “scurrilous”, “ludicrous” to depict material of a sufficient degree of offensiveness. the high degree of profanation that must be attained constitutes, in itself, a safeguard against arbitrariness”.14 for the european court, this case was a serious and offensive attack. the court observed that “the refusal to grant visions of ecstasy a distribution certificate was intended to protect “the rights of others”, and more specifically to provide protection against seriously offensive attacks on matters regarded as sacred by christians”. 3.4. a) test of thick concepts on the ‘world guided’ thick concepts analysis, the sex life of sacred and holy persons is a taboo. this is a film, an artistic portrait from an imaginated plot, with some characters that represent people of religious significance and, according to certain sectors, they did not show the proper behaviour. is a kiss between st. teresa and christ blasphemous? it is likely that the answer will depend on some contextual factors and religious interpretation of representation in artwork. another time is linked with the issue of sex life of sacred or saint persons. on the ‘action-guiding’ thick concepts analysis, the key point is if the restriction of free speech in this case is justified, like the european court found in its ruling. if it could be accepted that the film is blasphemous in content and so the next step is to determine whether a total prohibition or a regulation should be applied. as in the previous case dissenting opinion suggested, that regulation could consist of restricting the exhibition to certain places or audiences with proper warnings of the type of content. from the externalist approach, “not everyone” consider this case blasphemous because it is a film that reflects intimacy between two people who have a particular meaning that is not accessible to all. from the internalist approach, within christian community, this could be considered blasphemous as the sex life of sacred persons is a taboo. the view is community-shared by some christian believers, but not by nonchristian believers. this is the main reason for the restriction of speech because it is the majoritarian religion, and officially recognised as a state religion, in the united kingdom and, in that time, there was a crime of -christianblasphemy. from the thick concepts disengaged way analysis, this could be considered offensive for certain sectors, but it is a type of artistic representation. from the thick concepts engaged way analysis, those who live the christian blasphemy concept could find this case blasphemous. 14 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 52 blasphemy as a thick concept 3.4. b) test of civility a video of the life of a saint figure, with some scenes of erotic intimacy, which has been regarded as offensive. it could be considered as blasphemous for certain sectors. this is a particular reason, not accessible to all. the right to free speech and the criticism should be predominant. 3.5. samina v. sweden 20 october 2011 the applicant, yasmin samina, is a pakistani national who was born in 1971 and lives in uppsala. having arrived in sweden in 2007, her application for asylum was refused by an unappealable court decision in 2009. she complained that her extradition to pakistan would be in violation of, in particular, article 3 (prohibition of inhuman and degrading treatment), as she would face a risk of being arrested, tortured and executed on charges of blasphemy, either by the authorities or religious fundamentalists due to her activities for a christian organisation. she also maintained that she would not be able to afford treatment upon her return to pakistan for her poor mental health. the us department of state “2009 human rights report: pakistan”, 11 march 2010, stated: “the penal code calls for the death sentence or life imprisonment for anyone who blasphemes the prophet muhammad. the law provides for life imprisonment for desecrating the koran and up to 10 years in prison for insulting another’s religious beliefs with the intent to offend religious feelings. the latter penalty was used only against those who allegedly insulted the prophet muhammad”.15 according to this, the applicant was involved in these facts involved in these blasphemy laws: “it was further stated that the applicant and other members of the organisation had received life-threatening calls, letters and text messages. four times, unknown persons had thrown stones at them. muslim extremists wanted to kill them and their families because the extremists mistakenly believe that the organisation wants to convert muslims to christianity. the last threatening letter had stated that the members of the franciscan jpic were “kafar” and that the authors had commenced “jihad” against them and would kill them. they also threatened to have them punished through the blasphemy laws. the organisation had reported this to the police but without results so they had stopped their activities. the director requested that the applicant be granted asylum in order to save her life”.16 15 samina v. sweden app no 37974/11 (echr, 19 december 2013). 16 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 53 oscar pérez de la fuente in this case, the applicant “claimed that both the pakistani authorities and religious fundamentalists were looking for her and that she would face a real risk of being imprisoned, tortured and perhaps executed on charges of blasphemy upon return”.17 finally, in its ruling, “the court considers there are no indications that the situation in pakistan is sufficiently serious to conclude that the return of the applicant thereto would constitute, in itself, a violation of article 3 of the convention”.18 this article of the european convention establishes the “prohibition of inhuman or degrading treatment” and that was the argument on which the claimant sought to rely to avoid being deported to pakistan. 3.5. a) test of thick concepts on ‘world-guided’ thick concept analysis, blasphemy laws in pakistan should be understood in the context of a muslim country. more specifically, in the context of what could be considered blasphemous in the muslim religion. this religion has a special protection for certain figures or dogmas, like prophet muhammad. however, this case focuses on how christian religious practice in a muslim country could be considered a form of blasphemy. even if the conduct consists of christian religious proselytism, could this be correctly considered to be a form of blasphemy? this is an ambiguous side of blasphemy because, historically, it was religious orthodoxy that dictated what was blasphemous and what was not. nowadays, considering christian religious proselytism as blasphemous clearly opposes religious freedom right. the ‘action-guiding’ thick concept analysis is particularly relevant in this case. according to certain sectors of the pakistani population, the applicant’s activities could be considered blasphemous and, as a consequence, could, under pakistany blasphemy law, subject her to judicial punishment and, also, run the risk of her being subjected to unlawful violence. historically, the reasons for action to defend religious orthodoxy could be seen as form of intolerance and, in certain cases, could involve violence. this view, that it is intolerance, goes against the social contract of living harmoniously together, as a basis for public ethics. on the externalist approach, “not everyone” has a reason not to blaspheme because here blasphemy was synonymous of religious proselytism and pluralism that are core values in democratic societies. on the internalist approach, if the community of reference is pakistani society, it could be conceived that blasphemy includes christian proselytism, but this is a local meaning that could be seen as a form of intolerance. on the ‘community-shared’ thick concept analysis, the key point is whether this intolerant view on blasphemy, against the practice of other religions, is shared by all muslims or only by the extremist muslims. on the thick concepts disengaged way analysis, this use of blasphemy could be shared by certain sectors in some muslim countries, but not in a global stance referring to the respect for human rights, especially from western countries. on the thick concepts engaged way analysis, this type of understating of blasphemy as intolerance or the guardian of religious orthodoxy, could only be maintained by those who live the concept within a fundamenlist faith. 17 ibid. 18 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 54 blasphemy as a thick concept 3.5. b) test of civility the fact that religious proselytism is violently and legally prosecuted clearly goes against public reason and has a particular meaning, no accessible to all. it is a violent form of intolerance against the overlapping consensus of “reasonable comprehensive”’ doctrines in rawls’ tems. 3.6. case i.a. v. turkey 13 september 2005 in november 1993 a novel by abdullah rıza ergüven entitled “yasak tümceler” (‘the forbidden phrases’) was published. the book conveyed the author’s views on philosophical and theological issues in a novelistic style. in an indictment of 18 april 1994 the istanbul public prosecutor charged the applicant under article 175 §§ 3 and 4 of the turkish criminal code with blasphemy against ‘god, the religion, the prophet and the holy book’ through the publication of the book in question. it is a novel on ideas about islam that was published in a majoritarian muslim country. the public prosecutor’s indictment was based on an expert report drawn up at the request of the press section of the istanbul public prosecutor’s office by professor salih tuğ, dean of the theology faculty of marmara university at that time. in his report of 25 february 1994 this expert observed: “[…] although these passages may be regarded as a polemic in support of the author’s philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the prophet and belief in god according to islam ... in the author’s view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. the author describes religious faith as a ‘desert mirage’, a ‘primitive idea’ and ‘desert ecstasy’, and religious practices as ‘the primitivism of desert life’ […]”.19 in his report the expert quoted numerous passages from the book under review, in particular: “the imaginary god, to whom people have become symbolically attached, has never appeared on stage. he has always been made to speak through the curtain. the people have been taken over by pathological imaginary projections. they have been brainwashed by fanciful stories ... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [regarding the story of the prophet abraham’s sacrifice] it is clear that we are being duped here ... is god a sadist’ ... so the god of abraham is just as murderous as the god of muhammad”.20 19 i.a. v. turkey samina v. sweden app no 42571/98 (echr, 13 september 2005). 20 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 55 oscar pérez de la fuente in the balance between harm v. freedom, this is not a case of criticism but an “abusive attack” on the prophet muhammad according to the court: “…the present case concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive attack on the prophet of islam. notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: ‘some of these words were, moreover, inspired in a surge of exultation, in aisha’s arms. […] god’s messenger broke his fast through sexual intercourse, after dinner and before prayer. muhammad did not forbid sexual intercourse with a dead person or a live animal’”.21 it is important because this is a case of the european court in protection of religious feeling of a muslim country. the argument used by the court for the ruling is based in legal moralism as some other cases. it also justifies certain protection of matters considered sacred according to national authorities. in this respect the court considers that “the measures taken in respect of the statements issued were intended to provide protection against offensive attacks on matters regarded as sacred by muslims. in that respect it finds that the measure may reasonably be held to have met a “pressing social need”. 3.6. a) test of thick concepts on ‘world-guided’ thick concepts analysis, this case is a novel with opinion on islam figures and dogmas. the most controversial phrase could be considered when the author states: “muhammad did not forbid sexual intercourse with a dead person or a live animal”. this is an interpretation of some islamic rules, but certain sectors could consider them as blasphemous and offensive. the point here is if there is any kind of possible ambiguity or it is clearly a false accusation. on ‘action-guiding’ thick concepts analysis, whether or not the restriction of speech was justified in this case needs to be properly analysed. this depends on the possible falsity of this statement about the prophet’s beliefs. from the externalist approach, “not everyone” thinks this to be blasphemous as this could form part of an open discussion of a historical fact. from the internalist approach, within muslim community, this could be considered blasphemous. the important point is that this is an attack on islam in a muslim country. a nonbeliever could be interested not in being misinformed with biased and false information about islam, but the european court followed the line of legal moralism. in this case, in a muslim country. from the thick concepts disengaged way analysis, this case is about information on a religion founder that could be seen as offensive if it is not true. from the thick concepts engaged way analysis, those who live the muslim blasphemy concept, this information is blasphemous. 21 ibid. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 56 blasphemy as a thick concept 3.6. b) test of civility this is a novel that criticises islam and prophet’s figure and beliefs and made some statements that could be false. defending against false accusations against is a reason accessible to all. this could be considered a case of collective defamation. however, the open discussion and criticism of religious dogmas is essential part of public reason, but the use of lies or false arguments should not be accepted. as dacey explains: “for the policies that permitted the circulation of “the forbidden phrases” were no calibrated to offend them, denigrate their concerns, or deny their autonomy, but rather to create and sustain social practices of communication that would enable their own views to be heard and registered in public opinion”.22 3.7. e.s. v. austria, 25 october 2018 in another case, from january 2008, the applicant held several seminars entitled “basic information on islam”, opened to the public and was covered by a journalist. the most controversial statement she made was, referring to muhammad “he was a warlord, he had many women, to put it like this, and liked to do it with children. and according to our standards he was not a perfect human”.23 the national courts focused their analysis on the accusation of muhammad’s paedophilic tendencies. this case was not about a literary exercise, but about some informative seminars on islam covered by a journalist. section 188 of the austrian criminal code established the disparagement of religious doctrines, which was a type of religious insult, as a crime.24 the accusation of paedophilia against muhhamad is not new and it corresponds with certain orientalist and exotic tradition to describe muslim customs, particularly focused on the prophet muhammad (rosli, omar, 2017, 78-82). the european court of human rights, in conclusion, “considers that the domestic courts did not overstep their —wide— margin of appreciation in the instant case when convicting the applicant of disparaging religious doctrines. accordingly, there has been no violation of article 10 of the convention”.25 3.7. a) test of thick concepts as ‘world-guided’ thick concept analysis, this case is different from the previous analysed cases because it was an informative seminar on a religion, not literature. it was 22 dacey (n 2) 81. 23 e.s. v. austria app no 38450/12 (echr, 25 october 2018). 24 the wording of this article is: “whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”art. 188 of the austrian criminal code. e.s. v. austria app no 38450/12 (echr, 25 october 2018). 25 e.s. v. austria app no 38450/12 (echr, 25 october 2018). the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 57 oscar pérez de la fuente not a case of the offence of blasphemy, but religious insult that in the austrian criminal code was neutrally conceived for the “church or religious community established within the country”. this included muslim religion. the statement that the founder of a religion had paedophilic tendencies could be considered offensive for the followers of that religion. there is, however, a degree of disagreement based on the possibility as to whether that statement was true or not. in western countries, the sexuality of muhammad has been object of orientalist and exotic explanations that includes polygamy, slavery, harem and paedophilia (rosli, omar, 2017, 68-82). the phrase “muhammad had paedophilic tendencies” could be considered offensive for certain sectors. as an accusation it must be proved to be true or false. on the ‘action guiding’ thick concepts analysis this case could be seen a form a collective defamation. however, if the alleged defamatory statement can be shown to be true, there is no defamation and so no grounds to restrict the speech. on the externalist approach, “not everyone” has a reason not to blaspheme in this case because it was an statement on the biography of a historical personage that could be open to debate. on the internalist approach, it depends on the community of reference: society as whole could use the word blasphemy without necessarily including this statement, although the muslim minority clearly could not. on the ‘community shared’ thick concept analysis, the notion of blasphemy in this case could be shared by certain sectors of the believers. on the thick concepts disengaged way analysis, it could be understood, not necessarily shared, this case could be offensive for certain sectors. however, this is a statement of a historical fact about a public person. on the thick concepts engaged way analysis, for those who live the concept, this could be seen as a case of muslim blasphemy. 3.7. b) test of civility religious insult based the figure of the prophet muhammad by accusing him of paedophilic tendencies could be seen in a broader level of debate of the historical facts on persons with religious meaning. falsely accusing muhammad of practising paedophilia could be considered a way of collectively defaming the muslim religion, but if this accusation is true, there is no justification for restricting the speech. however, since there has been a traditional ambiguity in the interpretation of these historical facts, this blasphemy would have a particular meaning, not accessible to all. free speech and criticism must be predominant. 4. some conclusive remarks blasphemy has been defined as the “act of expressing contempt or a lack of reverence for god or sacred things”. someone could be forgiven for thinking that there is little future for blasphemy as an offence. however, muslim countries support the view that blasphemy should be regulated, in a reinforced way, at an international level and, as has the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 58 blasphemy as a thick concept been seen, the case law from the european court of human rights has generally favoured —to some people’s surprise!— restricting speech in cases of blasphemy. dacey criticises that particularly problematic is the court’s doctrine of the margin of appreciation, which gives national authorities broad discretion in interpreting limitations on fundamental rights. in the european context, such discretion has been tolerable because of the relative weakness of the anti-blasphemy legal regimes, where punishments are relatively mild or “proportional”.26 understanding blasphemy as a thick concept is useful to explain this european court case law. the first two cases are x ltd. and y v. united kingdom -1982and choudhury v. united kingdom -1991in which the court found in favour of restricting the speech and of not to restricting it, respectively. from the combination of the internalist approach and the engaged way thick concepts analysis, for those who live the concept of blasphemy, there is a clear problem with the definition of the community of reference for both approaches. if, in each case, the attacked religious community is chosen as reference, from the engaged way thick concepts analysis, both are cases of blasphemy, one for christians and the other for muslims. in x ltd. and y, the community of reference was the majority of the society while in choudhury, it was the minority. the key point is the legal protection in both cases was only for the religion of the majority. there was a lack of neutrality and equality between different religions and the state. in the cases otto-preminger institut v. austria -1994and wingrove v. united kingdom -1996-, the european court found in favour of restricting the speech. in both cases, the community of reference was clear: the society as whole with a majority of christian believers. the internalist approach and the engaged way thick concepts analysis were implicitly used in the justification of the european court in these two cases. this was based on some presumptions, such as society comprising a majority of christian believers; those who use the concept of blasphemy have a reason not to blaspheme, and those who live the concept of blasphemy think these two cases as blasphemous and offensive. it could be argued, however, from the externalist approach and the disengaged way thick concepts analysis, that not “everyone” would agree these two cases are blasphemous. from the objectionable concepts viewpoint, the blasphemous meaning attributed by the european court in these two cases could be controversial, especially if it involves the restriction of speech. in the case samina v. sweden -2011-, blasphemy was seen as a part of the legal arguments of an asylum seeker. the community of reference was a country -pakistan with islam as the majoritarian religion. the interpretation from the internalist approach and in the engaged way thick concepts analysis, could arrive at the conclusion that christian proselytism is blasphemous in a muslim country. the externalist approach and the disengaged way thick concepts analysis opposes to this view and maintain that activity was not blasphemous 26 ibid 67. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 59 oscar pérez de la fuente the cases i.a. v. turkey -2005and e.s. v. austria -2018are based on different type of accusations about the prophet muhammad. in the first case, the community of reference is a country that has islam as the majoritarian religion and in the second, a country that has christianity as the majoritarian religion. both cases presented certain facts attributed to muhammad. the european court found in favour of restricting speech in both cases. from the thick concept analysis, the european court applied the internalist approach and the engaged way with the muslim believers as community of reference. however, it is possible to argue “not everyone” would find these two cases blasphemous, as could be suggested from the externalist approach and the disengaged way thick concepts analysis. the criticism of religions and the critical historical facts review supports the view that restricting speech in these two cases was not justified. if thick concepts analysis could properly explain the current european court of human rights case law, it could also provide an alternative view. as previously analysed, the european court has usually followed an interpretation that includes the internalist approach and the engaged way thick concepts analysis. with the exception of choudhury, the community of reference for the court has been the believers of the attacked religion. in postsecular societies, religions still have a role but secularism and diversity should be ensured by the state. this means to decide these blasphemy cases is needed to include also the externalist approach and the disengaged way thick concepts analysis. the blasphemy echr case law have to pass the test of civility —rawls, habermas— and, as has been seen, in all cases free speech should prevail in ruling of blasphemy. the freedom of creation of literary and artistic works should prevail because offences against sacred figures or god have a particular meaning —explained because blasphemous is a thick concept— and cannot be translated into secular reasons. the accusations against the prophet muhammad form part of a public discussion on historical facts and religious criticisms, and the particular/thick concept of the insult to the prophet cannot be translated into secular reasons. the samina case is an example of the dark side of blasphemy as a way to impose religious truth and obviously is incompatible with public reason and the duty of civility. it can be concluded that thick concepts analysis is useful to explain and justify european court of human rights blasphemy case law. however, as has been shown blasphemy could be better understood as an objectionable thick concept. this means that the evaluations behind this category are not commonly shared. this has been explained by the externalist approach and the disengaged way thick concept analysis. the paradox is that in free and democratic societies, a proper balance between the respect for the sacred values and figures -which are highly regarded by believersand the rights and liberties usually associated with free speech, creative and artistic freedom and free criticism and fear of censorship -which are highly regarded by citizensis needed. there are many cases balancing respect and freedom, but thick evaluations cannot be easily translated into values that are accessible to all and on which public reason and the duty of civility are based. the age of human rights journal, 14 (june 2020) pp. 37-62 issn: 2340-9592 doi: 10.17561/tahrj.v14.5477 60 blasphemy as a thick concept bibliography benbaji, y.; fisch, m. 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(2016), “uses and abuses of postsecularism” in requejo, f.; ungureanu, c. (eds.), democracy, law and religious pluralism in europe, routledge. us commission on international religious freedom (2014), policy brief prisoners of belief, individuals jailed under blasphmey laws. väyrynen, p. (2003), the lewd, the rude and the nasty. a study of thick concepts in ethics, oxford university press, oxford. väyrynen, p. (2009), “objectionable thick concepts in denials” philosophical perspectives 23, pp. 440-469. williams, b. (2011) ethics and the limits of philosophy, routledge, london and new york, 2011. zucca, l. (2012), a secular europe. law and religion in european constitutional landscape, oxford unity press, oxford. blasphemy as a thick concept abstract keywords summary 1. free speech and religion 2. what are ‘thick concepts’? 2.1. thick concepts as ‘world guided’ 2.2. thick concepts as ‘action guiding’ 2.3. thick concepts as ‘community shared’ 2.4. some objections to thick concepts’ approach 3. blasphemy in the european court of human rights case law 3.1. x ltd. and y v. united kingdom 7 may 1982 3.1. a) test of thick concepts 3.1. b) test of civility 3.2. choudhury v. united kingdom 5 march 1991 3.2. a) test of thick concepts 3.2. b) test of civility 3.3. case otto-preminger institut v. austria 20 september 1994 3.3. a) test of thick concepts 3.3. b) test of civility 3.4. wingrove v. united kingdom 25 november 1996 3.4. a) test of thick concepts 3.4. b) test of civility 3.5. samina v. sweden 20 october 2011 3.5. a) test of thick concepts 3.5. b) test of civility 3.6. case i.a. v. turkey 13 september 2005 3.6. a) test of thick concepts 3.6. b) test of civility 3.7. e.s. v. austria, 25 october 2018 3.7. a) test of thick concepts 3.7. b) test of civility 4. some conclusive remarks bibliography the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective1 ebru demir2 abstract: the right to internal self-determination offers a legal ‘checklist’ for the un to provide both legitimacy and sustainability to peacebuilding processes. the right both clarifies the actors of postconflict reconstruction and also concretises to what extent these actors should be incorporated into peacebuilding processes. although the concept of local ownership has become an often-cited concept in peacebuilding literature, the legal ground of the concept (i.e. the right to internal self-determination) has been disregarded. this paper aims to reveal the legal aspect of the concept of local ownership and thus, attaches the right to internal self-determination with local ownership. keywords: the right to internal self-determination; economic self-determination; political selfdetermination; local ownership; peacebuilding. summary: i. introduction; ii. a right needs to be explored: internal self-determination; ii.1. the legal foundations of internal self-determination; ii.2. the right to internal selfdetermination: definition, scope and methods; ii.3. the relationship between internal and external self-determination rights; iii. internal self-determination in a peacebuilding context: local ownership?; iii.1. the scope of peacebuilding operations and its growing relationship with the concept of internal self-determination; iii.2. local ownership as a legal obligation for the un: the application of internal self-determination to the peacebuilding context; iii.3. local ownership as a hard task for the un: the challenges of application with relation to the identification of local actors; iv. the case of the congo: exclusion of local ownership from the peacebuilding process; iv.1. a story of failure: where is local in the congo peace process?; iv.2. ignorance of local actors as a violation of internal self-determination: is this a un ‘peacebuilding culture’? ; v. conclusion. i. introduction in the wake of the cold war, as a result of a substantial increase in the mandates of peace operations, the form of peace operations has changed and the intrusiveness of the un has increased. however, despite the increasing mandates, peace operations are falling behind creating long-lasting peace. in response to this profound dilemma, the united nations (the un) started to promote a concept which can be roughly defined as enabling local actors to make key decisions in peace processes: local ownership. 1 i would like to thank hakan kolcak for taking time to review the draft versions of this article. 2 phd candidate in law, university of sussex law school, united kingdom (e.demir@sussex.ac.uk). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 18 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective the concept has attracted great interest in the peacebuilding literature. the involvement of local actors in peace processes has been supported to different extents by various scholars. however, with relation to the source of the concept, there has been little or no research carried out. this article argues that the source of the concept should be the right to internal self-determination for the population at stake. it is asserted that internal self-determination offers a legal ground for terminating the ambiguity of local ownership to a large extent. as a whole, i aim to clarify the relationship between peacebuilding and internal self-determination, which has always been clouded by an overestimation of the relationship between external self-determination and peace processes. section 2 provides a theoretical framework for the study. the right to internal self-determination is scrutinised here in detail. the legal foundations of the concept are marked. the scope and holders of the right are examined under a human rights approach. moreover, the section aims to clarify two different aspects of the right: the political and the economic aspects. by analysing and concretising the right, it is intended to make it easier to prepare a framework for local ownership on the grounds of the right to internal self-determination. section 3 provides a reinterpretation of the concept of local ownership as a legal obligation. the inconclusive debate about the identification of local actors is raised. local actors and the extent of their involvement are determined from the perspective of the right to internal self-determination. despite the challenges to local ownership for a post-conflict country, it is claimed that the sustainability and legitimacy of a peacebuilding process depends on the involvement of the local actors. section 4 provides an opportunity to discuss the significance of the reinterpretation of local ownership as a legal obligation for the sustainability and legitimacy of a peace process through a case study: the democratic republic of the congo (the congo). in this section, it is illustrated that since the concept of local ownership is recognised only as a guideline on the part of the un, it shoulders no responsibility in practice; and the un applies the concept inconsistently, as happened in the congo. the section concludes that reinterpretation of local ownership as a legal obligation might create a consistent application of the concept. ii. a right needs to be explored: internal self-determination ii.1. the legal foundations of internal self-determination the codification of the right to self-determination in the un charter has a particular importance as it illustrates an international consensus over the recognition of the right (un charter, articles 1(2) and 55).3 however, the heyday of the principle was 3 in article 1(2) un charter states that one of its main goals is to ‘develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples (...)’. similarly, the charter elaborates the right at stake more in article 55 and links ‘peaceful and friendly relations among nations’ with self-determination of peoples. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 19 ebru demir the 1950-1971 period (alston 2001, p. 262), when decolonization and the rapid development of international human rights law rendered the right to self-determination a globally-acknowledged principle, ultimately stimulating the un to recognise the right in its general assembly resolutions. these developments are analysed below respectively. the jurisprudence of the international court of justice is not assessed as a contribution since it has never directly confronted with the principle of selfdetermination beyond the colonial context (crawford 2001, p. 36). both of the international human rights covenants – the international covenant on economic, social and cultural rights (the icescr) and the international covenant on civil and political rights (the iccpr) – recognize the right to self-determination in their common article 1 for all peoples.4 it can be claimed that these two covenants were the first substantial steps to providing a context to the right to self-determination beyond the colonial framework. this is because neither of these covenants restricted the scope or subjects of the right to colonial peoples (castellino 2000, p. 32). thus, the right of self-determination has gained a post-colonial scope, in addition to the colonial one. furthermore, international human rights bodies also contributed to the development of the scope of the right. the human rights committee (the hrc) made it clear that self-determination has some ramifications in the iccpr. by this, the hrc added an ongoing aspect to the principle. in its general comment, the hrc connected article 1 with article 25 which provides, inter alia, the right to take part in public affairs and to have access to the public service of one’s own country. the hrc held that these mentioned rights are closely related to the right to self-determination (un hrc gc 25, paras 1 and 2). as david raic maintained, the collective right to internal selfdetermination in article 1 and the political rights in article 25 have been “inextricably bound up” with each other by the hrc (raic 2002, p. 274). this argument begs a question: can holders of this right bring a claim to the hrc under article 1 with relation to the violation of any other rights? according to antonio cassese, this question should be answered in the affirmative. cassese held that when the economic rights of a group are violated, an individual in this group can complain about the violation of, for instance, article 25 and at the same time article 1 (cassese 1995, p. 145). however, in practice, the hrc rejected all individual communications for self-determination. one of these communications was the kitok case. in this case, the hrc found the communication inadmissible since an individual cannot claim to be a victim of a violation of the right to self-determination (ivan kitok v sweden para. 6.3). on many occasions the hrc did not find admissible any communication for self-determination. that is why it is hard to mention any contribution of the hrc to the development of the right to internal self-determination beyond its general comment 25. 4 article 1 of iccpr and also article 1 of icesr provide that all peoples have the right to selfdetermination. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 20 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective unlike the hrc, the african commission on human and peoples’ rights (the achpr) extended its enforcement mechanisms in a way that includes all categories of rights. the african charter on human and peoples’ rights (the banjul charter) allows communications both from states under article 47 and from individuals under article 55 for bringing a claim against the violations of any rights in the banjul charter.5 this is a very crucial step which enables individuals to allege violations of their internal selfdetermination, as happened in the katangese peoples' congress v. zaire (the katangese) case. in this case, an individual, the president of the katangese peoples’ congress, alleged the violation of the self-determination of the people of katanga under article 20(1) of the banjul charter. the achpr, in katangese in which the president of the katangese peoples’ congress alleged the violation of the self-determination of the people of katanga under article 20(1) banjul charter, recognised the post-colonial context of self-determination for the first time in its jurisprudence by ruling that all peoples have a right to self-determination (mhango 2007, p. 14). moreover, the achpr illustrated the ways in which peoples are able to exercise their right to internal selfdetermination as follows: “self-government, local government, federalism, confederalism, unitarism or any other form of relations that accord with the wishes of the people” (katangese peoples' congress v zaire para. 4). on the basis of this wording, it seems fair to hold that the achpr clearly distinguishes the colonial and non-colonial aspects of the right to self-determination. equally important, here the achpr attaches the violation of self-determination to the infringement of other human rights. in other words, if there is evidence of gross violations of any rights in the banjul charter, then there is also a violation of the right to internal self-determination. thus, this case shows that the achpr would find reasonable grounds for the violation of internal self-determination if the human rights of the katangese were violated. on such an occasion, the people at stake could be granted self-government (or any other way mentioned in the case) to enjoy their right to internal self-determination. however, the decision was not without problems. although the achpr granted self-determination to all peoples, it did not define the meaning of ‘peoples’. according to one scholar, the reason for this is the political sensitivity of the issue (thio 2002, p. 466). in other words, the possible increase in the number of claims for internal selfdetermination, and even external self-determination, forced the achpr to take a ‘conservative approach’ on this issue (ibid). besides, it can be argued that the lack of a definition of ‘peoples’ can cause arbitrary decisions when deciding which group can be considered a people and which cannot. nevertheless, the contribution of the achpr cannot be denied. this human rights body enables individuals to bring claims on behalf of groups for the violation of the right to internal self-determination. thus, the right at stake becomes justiciable in front of the achpr. another crucial contribution to the development of internal self-determination was made by the ga. the first step was the 1960 declaration on the granting of independence to colonial countries and peoples. in this declaration, all peoples were 5 article 47 of the banjul charter enables a state to bring claim against another state party in case of infringement of a human right provided in the charter. in article 55, ‘communications other than those of states parties to the present charter’ enables individual communications. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 21 ebru demir granted self-determination. moreover, in regard to this right they could freely determine “their political status and freely pursue their economic, social and cultural development” (un ga declaration 1960, para. 2). the significance of this declaration is two-fold. first, the right to self-determination goes beyond the colonial context by means of the term all peoples. second, the declaration clarifies the content of the right by attaching it to determination of political status and to the right to pursue economic, social and cultural rights. similarly, the 1970 declaration on friendly relations adopted almost the same wording about the right to self-determination (un ga declaration 1970). it was unanimously adopted and paved the way for the development of self-determination beyond the colonial context (alston 2001, p. 260). according to the wordings of both declarations, it seems that self-determination can be fulfilled by the enjoyment of economic, social and cultural human rights. although this is not the whole idea about internal self-determination, this framework is completely in compliance with the hrc’s general comment 25 discussed above. the development of the concept of internal self-determination does not end with these declarations. however, the aim of this section is not to give a comprehensive historical background to the principle of self-determination. such works have been done before (see thürer and burri 2010). instead, it is emphasized here that the development of internal self-determination goes back a long way. what is crucial for this section is to see that the pioneer sources of internal self-determination also outlined the conceptual framework of the concept. they explored the internal aspect of the right to selfdetermination beyond the colonial context and linked it with the enjoyment of human rights. ii.2. the right to internal self-determination: definition, scope and methods as discussed in the first section, the right to self-determination applies to all peoples, so not only to colonial peoples as holders of the right. thus, the terminology signifies a universal and ongoing character of this right (raic 2002, p. 228). while the external aspect of the right to self-determination is mainly associated with decolonization, internal self-determination “directly relates with the spirit and application of international human rights law” in an ongoing process (germanakou 2007, p. 2). first, it should be emphasized that both internal and external self-determination are still applicable. however, internal self-determination is the first resort. in other words, all peoples might have both rights, but the application should have an order. under the principles of territorial integrity and sovereignty, the application of external self-determination becomes the last resort. it seems clear that the un adopts this approach. that is to say, external self-determination seems to be a last resort in the documents of the un. for instance, the 1970 friendly relations declaration held that the wording of the declaration cannot be interpreted “as authorizing or encouraging any action which would dismember or impair, totally or in part (…)” (un ga declaration the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 22 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective 1970, annex). it can therefore be inferred that the un does not promote the external layer of the right to self-determination. on the contrary, the un strongly promotes the internal layer since it is in compliance with the principle of sovereign equality and territorial integrity.6 internal self-determination has two main aspects7: political and economic. these dimensions are analysed next, and then the holders of the rights are scrutinised. the political aspect of internal self-determination: the 1970 friendly relations declaration laid the groundwork for the scope of the political aspect of the right to internal self-determination. it encouraged states to have a government which represents all the peoples in the territory at stake “without distinction as to race, creed or colour” (ibid). thus, each state has the responsibility within its borders to have a representative government mechanism. this dimension of internal self-determination, as the hrc approved above, is much related to the entitlement to political participation. in other words, all peoples can choose their own political status and the form of their government under the right to internal self-determination (mccorquodale 1994, p. 864). under this right, they have a right to govern themselves, take part in public affairs and participate in elections and referenda and so on (rosas 1993, p. 249). the application field of internal self-determination is intra-state relations (raic 2002, p. 237). the relationship of the state and government with the peoples of the territory at stake is the main concern of the concept. the concept requires a transparent and accessible government which prioritizes all peoples equally without distinction as to race, creed or colour (germanakou 2007, p. 19). therefore, all peoples belonging to that territory can have the opportunity to take part in public affairs. without any distinction, all peoples should enjoy their economic, social and cultural human rights. it can be asserted that internal self-determination actually requires a legitimate state and government which is participative, representative and pluralist. in this sense, the theories of democracy and internal self-determination have close relations. although the connections between democracy and the right to internal self-determination is beyond the scope of this paper, it is fair to say that enjoyment of economic, social and cultural rights is also main principle of democracy. however, the question of whom will enjoy these rights (individuals or groups) seems like the major difference between democracy and the right to internal self-determination. (for more, see fan 2008; wolff 2014) for now, it should be affirmed that the political aspect of the right requires states and their governments to enable all peoples to enjoy ‘a right to have a say’ in the political decision-making process (raic 2002, p. 237). 6 sovereign equality (un charter article 2(1)) and territorial integrity (un charter article 2(4)) are among the main principles of the un. 7 there are growing discussions regarding all aspects of the right to internal self-determination, such as social and cultural aspects. for instance, cultural dimension of internal self-determination has been reminded by numerous fellow individuals in recent years, particularly related to minorities (lgbtis, the roma, immigrants in western europe, to name just a few) (see green 1995). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 23 ebru demir the economic aspect of internal self-determination: another aspect of internal self-determination can be termed ‘economic self-determination’. it is a very crucial right since its enjoyment enables the beneficiaries to enjoy their other human rights. to put it another way, the realization of economic self-determination paves the way for enjoying other human rights in both of the international human rights covenants, such as the rights to health, housing and education (farmer 2006, p. 420). consideration of this aspect of the right has been more neglected in comparison with the political aspect, although it also has its foundations in both of the international human rights covenants (common article 1(2)). according to the same wording in both of the covenants, all peoples have a right to dispose their natural resources freely (iccpr art 1(2)). this can be adapted to a context which is beyond the colonial period under a human rights approach. in other words, a human rights approach enables us to expand the scope of the right beyond the colonial context. thus, it can be concluded that all peoples belonging to a territory can claim control over the natural resources of that territory (farmer 2006, p. 419). the term ‘freely dispose’ has two meanings. according to alice farmer, first, it means that a representative body should distribute natural resources transparently (ibid p. 430). here, it is clear that the theory of democracy again overlaps with economic internal self-determination. the second meaning of the phrase requires that natural resources must be used for the peoples’ own ends (ibid). in other words, the resources must be distributed equally for the benefit of the peoples. despite its importance, economic self-determination has always been underestimated in the literature. however, the achpr made a great contribution to the development of economic self-determination in the social and economic rights action centre (serac) and another v nigeria (the serac) case. although this case is one of the milestones of environmental law, it is also very crucial for clarifying the duties of states with relation to the economic aspect of internal self-determination. in serac, the communication alleged that in ogoniland an oil consortium had exploited the oil reserves with the permission of the government (para. 2). this created contamination of the environment of ogoniland. the ogoni people, who is one of the peoples in nigeria, were severely affected by this situation. the issue with regard to internal selfdetermination was that the ogoni people had not been allowed to be involved in the decision-making process (ibid para 4). thus, the communication was brought on behalf of the ogoni people under, inter alia, article 21 of the banjul charter which grants economic self-determination. the achpr found a violation of, inter alia, article 218 (ibid para. 70). more importantly, it analysed the nature of the right to economic self-determination and identified three dimensions of the right. the first dimension was that the achpr held that the government did not respect the decisions of the ogoni people by excluding 8 article 21 of the banjul charter addresses the right to economic self-determination of all peoples by providing the right with an ongoing aspect without needing to secessionary external self-determination. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 24 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective them from the decision-making process (ibid para 55). this expression may have two meanings. first, that the decision-making process should be inclusive. the beneficiaries of the natural resources, in this case the ogoni people, should have been allowed to participate in this process and their decision should have been respected. second, a state and its actors should refrain from preventing the peoples’ enjoyment of their economic self-determination. the second dimension is that the achpr clearly pointed out that states have to protect their citizens through legislative and effective enforcement and by protecting them from damage caused by private actors (ibid para. 57). thus, states also have to protect their citizens from the harmful acts of third parties. the final dimension of the right is that the government did not facilitate the ogoni people to enjoy their right at stake; conversely, it facilitated the destruction of the ogoniland (ibid para. 58). thus, the achpr recognised that states should take positive steps that might enable peoples to have a greater enjoyment of the right to economic self-determination. the serac concretized the meaning and scope of the right to economic self-determination and it illustrated the fact that the right has different dimensions in itself. thus, a state cannot release itself from the obligation by just preventing its actors from violating the right concerned. it also has to prevent third parties’ interference, and moreover it has to facilitate the enjoyment of the right by different measures, such as legislative, administrative or judicial (remedial) measures. all in all, both the political and economic aspects of internal self-determination can be concisely summarized by the words of jan klabbers: the right to be taken seriously (klabbers 2006, p. 202). from both aspects, all groups should have a right to contribute to shaping their own political and economic future. for this to happen, states should take the decisions of these groups seriously and grant them certain procedural rights, such as freedom of expression, freedom of assembly and freedom from discrimination (ibid p. 205). it should be emphasised here that when these rights are enjoyed by individuals, this does not mean that internal self-determination is necessarily respected. the main reason for this is that the identity of a group can be different from the sum of the identities of its individual members (raic 2002, p. 239). thus, the interests of a group will be different from the sum of the interests of each individual within it. breaking groups into their various components would undermine the group identity (klabbers 2006, p. 205). thus, the subjects of the right to internal self-determination whose rights should be taken seriously are groups. the holders of the right at stake: the holders of the right have been decided as “all peoples” in both covenants (iccpr article 1 and icesr article 1). it is clear that the right has beneficiaries beyond the colonial societies. however, there is still an ambiguity about how these peoples can be identified. in other words, what is the meaning and scope of the term ‘peoples’ in this context? the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 25 ebru demir in the jurisprudence of the hrc, the issue of the subjects of internal selfdetermination is a problem. the hrc seems far from clarifying the subjects of internal self-determination. this can be clearly seen in the mikmaq case. in this case, the hrc rejected the violation of self-determination claim brought by an individual on behalf of the mikmaq tribal society (mikmaq tribal society v canada). however, the individual opinion in this case has a particular importance. an hrc member, mr roger errera asked two crucial questions: if the optional protocol of the iccpr allows all individuals to bring a claim in the case of a violation of all the rights set forth in the iccpr, why cannot an individual claim a violation of the right to self-determination? (ibid). and, equally important, is the mikmaq tribal society a ‘people’ within the meaning of the iccpr? (ibid) it can be claimed that the main concern of the member who asked these questions was to interrogate the beneficiaries of the right to selfdetermination. the current jurisprudence of the hrc is not helpful for finding the holders of the right to internal self-determination. on the contrary, it is confusing since it rejects all claims brought by individuals on behalf of groups. by doing this, the hrc is making this right non-justiciable under international human rights law. in line with the purpose of this paper, when scrutinising the holders of the right at stake, a human rights approach is applied. and to avoid the ambiguity of using the term ‘peoples’ since its singular and plural forms are confusing, ‘groups’ will be advocated as the beneficiaries of the right to internal self-determination here. under the human rights approach, whereas all groups in a territory at stake have this right, the implementation of this right can only be realized by the groups who are denied their economic, social and cultural rights as a result of their “race, creed or colour” under the 1970 friendly relations declaration. although the wording of this declaration seems only to prohibit distinctions on the grounds of race, creed or colour, race should be interpreted within the context of the international convention on the elimination of all forms of racial discrimination (the convention). the first article of the convention defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin (…)” (icerd 1965, article 1). clearly, the convention interprets the scope of race broadly. similarly, under the human rights approach, the subjects of internal self-determination should be expanded as more recent regulations conceive the holders of the right more broadly. the development of the theory of self-determination is still continuing. in this process, the 1993 vienna declaration and programme of action (the vienna declaration) was a milestone. the vienna declaration confirmed self-determination as a right for all groups. moreover, it took the wordings of the previous declarations one step further and held that states should prohibit “distinction of any kind” in order to be in compliance with the principle of self-determination (un ga vienna declaration article 2). thus, the developing theory of internal self-determination applies to all groups, as a collective right, who have distinctions of any kind. throughout this study, the subjects of the right to internal self-determination will therefore be groups of any distinction. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 26 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective groups having distinction of any kind can be given a number of options to enjoy their internal self-determination. to comply with this obligation, governments may have some particular policies to enable groups to enjoy their economic, social and cultural rights. the fundamental step for doing this can be constitutional arrangements to protect the interests of groups (germanakou 2007, p. 18). thus, groups can enjoy their distinctions. they can, for example, profess and practise their religions, use their languages, establish associations and participate in public affairs (cardenas and canas 2002, p. 114). the extreme method for granting internal self-determination is autonomy. groups can be given an opportunity to exercise autonomy. this type of internal selfdetermination can be seen as very extreme. however, it should be remembered that internal self-determination “require a substantial reordering of a state’s domestic law in order to achieve compliance” (fox 1995, p. 734). thus, internal self-determination does not always require autonomy, but initially requires substantial changes in domestic affairs. it should be pointed out here that internal self-determination is a developing right. however, its conceptual framework has been identified. especially, the human rights approach makes this right more particular and concrete. the right at stake is closely related to economic, social and cultural human rights. however, as it is a collective right, it concerns the interests of the groups belonging to a particular territory, not to individuals within those groups. the development of the concept of internal selfdetermination cannot give a mandate to terminate external self-determination wholly. in extreme circumstances, internal self-determination can give way to external selfdetermination. ii.3. the relationship between internal and external self-determination rights as was discussed above, the un very clearly stated in the 1970 friendly relations declaration that it does not promote groups to “dismember or impair, totally or in part”. this expression is in compliance with the principles of territorial integrity and sovereignty. martti koskenniemi propounded the view that the relationship between self-determination and territorial integrity is two-fold. on the one hand, internal selfdetermination seems to honour de facto existing boundaries by respecting the principle of territorial integrity (koskenniemi 1994, p. 248). on the other hand, this situation can be overruled as a result of a denial of human rights (ibid). in other words, under international law, large-scale and repeated human rights violations might create a legitimacy to apply external self-determination (buchanan 2004, p. 364). it should be emphasized that each denial of fundamental human rights does not directly pave the way for a right to external self-determination. in addition to this, these violations should be “gross breaches of fundamental human rights” (for example genocide, war crimes or crimes against humanity) and also there should be no possibility of a peaceful solution within borders (cassese 1995, p. 120). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 27 ebru demir on this point, christine bell (2008, p. 37) raised a crucial issue. according to bell, all the groups in a society might have a secessionist tendency and might claim that their government does not pay attention to their human rights. this could trigger the “threat of territorial changes and disruption of the existing order” (germanakou 2007, p. 21). in other words, external self-determination can complicate matters more when the borders of existing states are being reshaped. it can disrupt peace and security, which are the basic goals of the un. under its own charter (article 1), one of the purposes of the un is to maintain international peace and security. thus, it can be inferred that the un has reasonable grounds for favouring the internal aspect of the right to selfdetermination rather than the external one. this is because as a response to every gross violation of human rights, the application of external self-determination can create an insecure and unstable world. as is emphasized in agenda for peace (para 17), if every group claims statehood, peace and security would be more difficult goals. as internal self-determination is related to the relations within a state (summer 2013, p. 235), it leads towards maintaining the international order, which external self-determination does not. this tendency of the un is also clear in un practice. in the ga resolutions or other legal sources, the un has always supported internal self-determination. it has never challenged the view that those groups in a society which have a distinction of any kind are entitled to the right to internal self-determination (cassese 1995, p. 107). furthermore, even the extreme form of internal self-determination, autonomy, has been supported by the un for some groups (ibid). in parallel with that, there are clear resolutions that illustrate the denial by un bodies of external self-determination claims (see un scr 169).9 it is worth mentioning here the relationship between un sc and the right to internal self-determination. since the right to internal self-determination is protected under the un charter, the un sc resolutions cannot override this right. the sc itself also on occasions affirmed that its power is limited by fundamental human rights and humanitarian law norms. (see un scr 1456). in practice, however, deciding on whether any intervention is based on the right to internal self-determination seems more difficult. for instance, in case of somalia, the reason for the operation was to ‘ensure delivery of humanitarian assistance in somalia’. (see un scr 794, preamble). can this aim be considered in the framework of internal self-determination? in other words, can humanitarian assistance be regarded as providing help to the somalian peoples to enable them to use their right to internal self-determination? these are the questions which are beyond this paper’s scope but worth asking. it can also be asserted that the internal aspect of the right to self-determination has gained support from states. since the external layer can cause boundary shifts, and thus legitimacy issues, states do not want to complicate matters by favouring external self-determination (saul 2011b, p. 619). there is an overwhelming agreement 9 for example, un scr 169 denies the right to external self-determination of the congo and instead promotes territorial integrity and the political independence of the republic of the congo. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 28 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective corroborating the idea that the development of internal self-determination might be increasingly supported by states. it seems that internal self-determination complies with the principles of territorial integrity and sovereignty, unlike external self-determination. both of these principles are historically compatible with the interests of states. as the main contributors to the development of international law are still, to a large extent, states, they may be willing to support the development of internal self-determination (fox 1995, p. 736). it can therefore be concluded that internal self-determination has obtained strong support from both the un and states. however, as discussed above, development of the theory of internal self-determination does not exclude or isolate external selfdetermination. instead, whilst the right to internal self-determination is the first resort, gross violation of it might pave the way for external self-determination. that is why it seems more appropriate to refer to them as different layers of the same right. the relationship between the two layers might be made more concrete by a discussion of the case of canada. the relationship between the internal and external aspects can be construed in the supreme court of canada’s (the supreme court) decision on quebec: reference re secession of quebec. one of the most significant contributions of this decision is that the supreme court recognised the internal aspect of the right to self-determination very clearly (reference re secession of quebec para. 124). thus, the supreme court recognised the quebecers as a distinct group within the borders of canada. equally important, internal self-determination was claimed as a precondition for external self-determination. the supreme court held that it was a fact that the quebecers had not been denied access to government. as a result of statistical analysis, the supreme court came to a conclusion that residents of the province could manage to pursue their economic, social and cultural rights across canada (ibid para. 136). more importantly, they were equitably represented in legislative, executive and judicial institutions (ibid). this decision has three crucial implications. first, it was in compliance with the argument of the present study that internal self-determination can be achieved through the enjoyment of human rights. in other words, enjoyment of human rights makes it easier to enjoy internal self-determination since it is related to economic, social and cultural rights. second, it was in compliance with the argument of this section that external self-determination is the last resort. as long as the beneficiaries do not apply to exhaust the internal self-determination, the external aspect seems hard to be granted. third, the supreme court not only took into account the rights of individuals, it also paid attention to group rights. as was discussed above, the beneficiaries of the right to internal self-determination are groups. the supreme court correctly considered the extent to which the quebecers as a group were represented in the different mechanisms of the state. since the quebecers were represented in the legislative, administrative and judicial bodies of canada, their right to internal self-determination had been fulfilled. that is why the supreme court concluded that only when the internal the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 29 ebru demir self-determination right of the group is denied would this group be entitled to a right to external self-determination. iii. internal self-determination in a peacebuilding context: local ownership? iii.1. the scope of peacebuilding operations and its growing relationship with the concept of internal self-determination the term ‘peacebuilding’ appeared in the official lexicon in 1992 under enthusiastic feelings about the end of the cold war, although its conceptual framework can be found in previous peace studies (chetail 2009, p. 2). the un secretary general (the sg) classified four activities for conflict management in his 1992 agenda for peace report: preventive diplomacy, peacemaking, peacekeeping and peacebuilding. the last one is the main concern of this study. the concept of peacebuilding is defined in agenda for peace (para. 21) as an “action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict”. moreover, the aims of the concept were defined as “rebuilding the institutions and infrastructures of nations torn by civil war and strife; and building bonds of peaceful mutual benefit among nations formerly at war” (ibid para. 15). equally important, the main purpose of a peacebuilding process is summarized in the report as the “contribution of economic and social development” (ibid para. 56). it can be clearly seen that the agenda for peace was a very important step since it defined the framework of the concept of peacebuilding to a certain extent. first, according to the report, the aim of the concept is to avoid any recurrence of a conflict. this implies that this aim might require the use of comprehensive means. moreover, peacebuilding aims to (re)create an infrastructure that enables all groups to enjoy their economic and social rights. that is to say, economic and social developments seem the final goals of a peacebuilding operation. for a sustainable peace, the report focused on long-term goals, rather than on simply ending the conflict. ending the existing conflict can be the goals of peacemaking and peacekeeping operations, but peacebuilding operations seem to lie beyond this goal. whereas peacekeeping purposes security, peacebuilding is related to the reform process after security has been provided (hazen 2007, p. 330). in this sense, these four conflict-management operations can be seen as having a linear relationship (chetail 2009, p. 2). at the end of this linear system, peacebuilding operations can occur, and these operations promote economic and social development and a full recovery for a post-conflict society. the development of the concept of peacebuilding strengthened the view that peacebuilding has long-term goals. in the report of the panel on un peace operations (the brahimi report) (para. 13) peacebuilding was defined as reorganizing “the foundations of peace”, thus “more than just the absence of war”. the brahimi report has a particular importance since it expanded the mandate of the un on intra-state conflicts and set up strategic directions for a peacebuilding operation (lund 2003, p. 2). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 30 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective for example, in the brahimi report (paras 13 and 47), inter alia, respect for human rights, assistance for development and the reconciliation of the society as a whole were stated as the goals of peacebuilding. it can therefore be concluded that rather than only peace, sustainable and long-lasting peace is the target of current un peace operations. it should be pointed out that since the end of the cold war, there has been a clear expansion in the mandates of peace forces (hazen 2007, p. 327). thus, the degree of un involvement has increased (rubin 2008, p. 25-26) and some new tasks have been granted to peacekeepers, such as facilitating humanitarian assistance, monitoring human rights, promoting good governance and assisting institutional reforms. this expansion of mandates creates confusion about when peacekeeping stops and peacebuilding begins. this is because there should be a starting and ending point for peacekeeping operations. as has been discussed above, the agenda for peace requires a linear relationship between the four conflict management operations. that is to say, although the break point between the last two of these operations is not clear in theory, this gap needs to be filled. the reason is that the actors of peacekeeping and of peacebuilding operations are completely different. the un should start sharing the tasks with the local population when the peacebuilding process begins. whilst peacekeepers can be external, the success of a peacebuilding operation depends on the population which caused the conflict (ibid). it should be emphasized that the literature on peacebuilding operations is not sufficient and not clear enough. in other words, there are still gaps in how to conduct the process. however, it is clear that the actors should be the local peoples, and that the process should allow them to (re)shape their own society (white 2009, p. 219). any intervention from outside, in contrast to peacekeeping operations, can create detrimental consequences (daoudy 2009, p. 354). since the end of the conflict is a necessity for the beginning of a peacebuilding operation, ‘broad’ un intervention loses its legitimacy. local peoples should be peacebuilding actors in addition to the un for the legitimacy of the peace operations. these goals of peacebuilding operations are definitely in compliance with internal self-determination goals. as has been discussed above, internal selfdetermination obliges states to enable all groups in a society to take part in political affairs and enjoy their economic, social and cultural rights. this means that all groups without any distinction should enjoy the right to ‘have a say’ under this right, and that they should be ‘taken seriously’ by states. each ethnically, religious, culturally and any distinct groups should be free to choose their political status and the form of their government. they should be granted an opportunity to participate in the state’s economic, social and political systems (saul 2011a, p. 179). according to michael doyle (2002, p. 97), internal self-determination has a potential to settle the causes of conflict and to create a more powerful post-conflict management system. although this argument is completely in compliance with the argument of this study, it should be emphasized that there is no a clear jus post bellum. that is to say, there is no a clear law to apply to a post-conflict country. that is why caution should be exercised when describing the content of law to apply during a the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 31 ebru demir peacebuilding operation. however, it seems unproblematic to suggest that internal selfdetermination presents an appropriate rule of law to apply to a post-conflict country. because it respects the political and economic decisions and interests of the groups at stake, it can make a peace process more legitimate and sustainable. the overlapping goals of the two concepts might enable the suggestion to be made that internal self-determination is an appropriate rule of law to apply during peacebuilding operations. by respecting the right to internal self-determination of the groups in a post-conflict country, the peace process might be both legitimate and sustainable. indeed, by improving the term ‘local ownership’, the un illustrated its respect for local actors during peace processes. however, the un is implementing this term as a policy guideline. in the next section, it will be claimed that local ownership is beyond policy guidelines; it has its roots in the right to internal self-determination. iii.2. local ownership as a legal obligation for the un: the application of internal self-determination to the peacebuilding context regarding the source of the concept, little or no research has been carried out. it has been claimed by some scholars that local ownership takes its legitimacy from sovereignty, (sending 2010, p. 1) or from state consent (von billerbeck 2011, p. 352). however, both of these concepts make the source of local ownership more ambiguous rather than clarifying it. it will be claimed in this section that internal self-determination underlies the concept of local ownership. that is why the concept will be reinterpreted in the sense of internal self-determination. since local ownership has its roots in this right, it will be asserted that the un should consider local ownership not only as a guideline, but also as a legal obligation. local ownership owes its recognition to the un. the un interpreted this concept within a peacebuilding context. the concept was approved by the un sg in 2001 (‘no exit without strategy’ para. 12) in the context of peacebuilding. in his report, the sg opined that the sustainability of a peace can only be achieved by the local population. in this process, the un can only assist the local population “to develop legitimate and broad-based institutions” (ibid para. 10). in subsequent reports, the un took this argument one step further and held that “every effort” should be in compliance with promoting local ownership in a peace operation (un dpko united nations peacekeeping operations 2008, p. 39). the same discourse can be found in a number of department of peacekeeping operations (the dpko) guidelines, best practices, and lessons learnt documents (von billerbeck 2011, p. 323). thus, it seems clear that the un has a strong commitment to local ownership. however, there are still ambiguities about the extent to which the local population will be involved in peace process. the literature also shows no consensus on the degree of involvement of local actors. oscar mateos stated that the local can participate, and can be consulted in peacebuilding operation (mateos 2011, p. 6). this seems a restrictive interpretation of local involvement in a peacebuilding process. hannah reich (2006, p. 15) took this the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 32 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective analysis one step further and argued that local ownership should mean more than simply a participatory or consultative role given to the local. she claimed that local actors should hold “final decisive power”. (ibid) along similar lines, necla tschirgi (2004, p. 9) argued that the local population of a post-conflict country must manage the reconstruction process. on these grounds, it can be asserted that even though there is consensus on the involvement of local actors in the process, the extent of this involvement is not clear. that is to say, a bottom-up approach is supported by the literature. however, the question is the extent to which the bottom-up approach should be interrelated with the top-down approach. rather than taking a side in the discussion above, it seems that in fact the issue is a result of the ambiguity of the division of tasks between external and local actors. the division of tasks has a particular importance since it can give an opportunity for clarifying the extent of the participation of the local actors in a peacebuilding operation. similarly, reich’s views (2006, p. 24) are grounded on the suggestion that external actors should be clear about their roles. provided that the role and duties of external actors are clarified, this also will clarify the duties of local actors. thus, by resolving the extent of the involvement of both sides, defining the boundaries can make a peace process more transparent and legitimate. this issue has also been considered by the un. in one of the recent reports of the sg, the tasks of the un during a peacebuilding operation have been clarified to some extent. according to this report, the un has a duty to assess national needs and capacities (un report of sg, ‘the rule of law and transitional justice in conflict and post-conflict societies 2011, para. 14). therefore, it should assess, inter alia, “rule of law implications of peace agreements”, “the nature of the country’s legal system” and “the will of the parties”. (ibid) thus, it can be claimed that the tasks of the un are based on the assessment of how the legal system and order in the post-conflict country are being achieved. after this assessment, the un also has to facilitate transitional justice mechanisms, by, inter alia, “training national justice officials” and “supporting judicial reform bodies”. (ibid para. 12) from the wording of the report, it can be inferred that rather than a total interventionist role, the un prefers to assess the rule of law in the country at stake and facilitate law and order if and when the country needs it. the un’s attitude illustrates that there is a consensus on the view that the main actors of a peacebuilding process are the local population concerned. the duties of the un are also formed according to this understanding. the issue of local actors has been a controversial and much disputed subject within the field of local ownership. it has been an issue to consider whether local ownership should be managed by the population as a whole or by the actors of the states (who will be termed ‘elites’). this difference is of vital importance since different ‘locals’ may have very different goals and priorities in a peacebuilding process (wong 2013, p. 48). these goals can conflict with the aim of a peace process and this might influence both the sustainability and the legitimacy of a peacebuilding operation. although it is not easy for the un to identify ‘the locals’, the processes should be inclusive as much as possible for both the legitimacy and the sustainability of the the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 33 ebru demir process. within the scope of this paper it can be held that the local actors should include all groups having different interests in a society, including professional associations, private sector organisations, religious groups, women’s organisations and human rights bodies (nathan 2007, p. 26). briefly, all interest groups organised autonomously are the local actors from the perspective of internal self-determination (bell 2008, p. 212). in some sg reports, national ownership is promoted to increase the legitimacy of the operation (see un report of the sg, ‘securing states and societies: strengthening the united nations comprehensive support to security sector reform’ 2013, para. 21) whilst others use national and local ownership concepts together (agenda for peace, para. 21). national ownership is seen in the literature as a symbol of a top-down approach since it suggests the elites as counterparts for the un as an alternative to groups (donais and machold 2011, p. 5). the usage of the two terms in un documents can be considered inconsistent. from this, it can be concluded that the un has no clear understanding of what constitutes ‘local’. although the concept is promoted frequently, it is not explicit about to whom the ownership belongs. in the literature too there has been an inconclusive debate about the identity of local actors. a minimalist perspective suggests that the local actors who are believed to be capable of leading the process are elites (donais 2008, p. 9). on the other hand, a maximalist argument approves a broader local consensus. (ibid) some scholars even take this claim further and suggest that the local actors who matter are the entire citizenry (martin and wilson 2008, p. 85). in the present author’s opinion, neither argument is of crucial importance since neither of them depends on any legal basis, and therefore they leave space for arbitrary decisions regarding the participation of locals. that is to say, since local ownership is seen as only a policy or guideline, the un seems not to be obliged to act under the minimalist or the maximalist perspective. what really matters is relying upon a legal basis when deciding on the local owners. in parallel with the purpose of this study, under the human rights approach it can be asserted that the local actors should be all groups of any distinction in a post-conflict country. under the political aspect of internal self-determination, they should be allowed to choose their own political status and the form of their government (mccorquodale 1994, p. 864). moreover, they should have an opportunity to take part in public affairs and have access to public services, or their representatives should participate in elections as candidates. under the economic aspect of internal self-determination, similarly, all groups of any distinction should ‘freely dispose’ their natural wealth and resources. moreover, states should take positive steps to enable all groups to have a greater enjoyment of natural wealth and resources (the serac case). thus, the local actors should be all groups in the post-conflict country concerned and they should (re)shape their country by enjoying their right to political and economic self-determination. rather than collaborating with only elites, the approach should be inclusive and bottom-up. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 34 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective local ownership and the identification of local actors should be reinterpreted from the viewpoint of internal self-determination. thus, all distinct groups in a postconflict country should be part of the reconstruction process. equally important, this inclusive step should not be implemented as a policy or guideline. it should be concurred with because of its legal obligatory status. provided that it is practised because it is a legal obligation, arbitrary decisions on the involvement of local owners can end. more legitimate and consistent practices can occur. although local ownership is a legal obligation since it is based on the right to internal self-determination from the standpoint of this paper, in reality it is not without challenges. iii.3. local ownership as a hard task for the un: the challenges of application with relation to the identification of local actors the literature shows no consensus on whether local ownership gives legitimacy and sustainability to a peace process. whilst some scholars argue that it makes the process legitimate and sustainable, others claim the exact opposite. the latter assert that the involvement of a broad proportion of a population can create legitimate but unstable circumstances. on the one hand, timothy donais, who is prominent in the literature on local ownership, has claimed that the involvement of national elites could create positive consequences if they were responsive to the popular will (donais 2008). however, in many cases, in a post-conflict country, political or military elites may not represent the whole population. (ibid) thus, it can be claimed that the interests of these elites can be totally different from the locals’ interests and will. on the other hand, some problems with relation to the circumstances of a postconflict country may require restricting the counterparts to political and/or military elites. one of the most important issues is the capacity of the locals. it has been argued that the peacebuilding process demands a capacity for making reforms and transitioning to a peace society. however, in post-conflict circumstances only political and military elites may have capacity to realize such reforms. exclusion of these elites would result in and justify ‘a more hands-on approach’ by external actors (mateos 2011, p. 7). to portray the issue in sarah von billerbeck’s terms (2011, p. 339), local ownership complicates the building of peace in a country. she argued that the multiplicity of local owners makes it difficult to have a consensus of all the population. (ibid) according to her, the un should ‘choose’ its counterparts from the elites. (ibid p. 342) this would increase the un’s ability to obtain positive results more quickly. (ibid 343) von billerbeck drew attention to very significant points with reasonable arguments. however, first, for an external body (that is, the un), the process of ‘choosing’ partners does not seem to be without problems. to ‘choose’ may mean to decide the ‘winners’ of the conflict, empowering some actors and disempowering others (stromseth, whippman and brooks 2006, p. 379). unavoidably, there may appear a perception on the part of the entire population that those who are chosen to be a partner of the un are the winners of the conflict. this can damage the peacebuilding process. second, preferring the elites in order to achieve rapid and positive results is reminiscent the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 35 ebru demir of annika s. hansen’s famous ‘elite capture’ term. in accordance with this term, external actors talk only to the top levels of government and other elites (hansen 2008, p. 45). as a result of this practice, external actors inevitably trade legitimacy for the sustainability of the peace process. even if this trade off and elite capture were avoidable to a certain extent, it is not what internal self-determination requires. from the perspective of internal selfdetermination, in a post-conflict country, all groups have a right to both political and economic internal self-determination. in the reconstruction period, all groups should take part in public affairs and have a right to approve or contest the reforms at stake. they should enjoy a right to choose their own political status and the form of the government. under economic self-determination, all the groups in the country should share equally all natural wealth and resources. furthermore, they should ‘freely dispose’ the resources without any oppression. here, it should be emphasized that local ownership does not exclude externals as a whole (chesterman 2007, p. 21). conversely, it welcomes any external involvement as long as it stimulates local interests (nathan 2008, p. 21). that is to say, any step from externals which encourages local owners to enjoy their political and economic internal self-determination rights is welcome. the rationale of the argument of the study is the fact that the reconstruction process is an extremely large and tense process, so the presence of an explicit opposition on the part of the locals makes it harder to accomplish the tasks of the peace process (donais 2012, p. 12). this can be because of, first, the practical reasons. to implement reforms and peace agreements, the participation and mutual cooperation of all parts of the population is necessary. second, as has been discussed above, after the peacekeeping phase is over, the peacebuilding process should be driven by local actors since the legitimacy of the intervention ceases when the conflict ends. third, recent cases show that the sustainability of a peacebuilding operation does not depend only on the consent and approval of the political and military elites. in a post-conflict country, locals can block or undermine even the most carefully designed policy reforms (donais 2009, p. 125). thus, it can be held that all groups in a postconflict country whose interests are not satisfied might have a capacity to undermine the sustainability of the peace process. that is why all groups’ interests should be represented and protected in a peace process. on the other hand, it cannot be claimed that locals are the best counterparts for the un. as happened in sierra leone between 2002 and 2007, the local can be too weak to be counterparts. (wong 2013, p. 48) or, as happened in afghanistan, the involvement of locals can totally destroy law and order. (ibid p. 50) so it cannot be claimed that local actors always create the best results. however, despite all the challenges, the main argument is that a peace process which respects and encourages the locals to enjoy their internal self-determination right tends to be sustainable and legitimate. in other words, a local-involving peace process is more likely to create good results in the long-term (reno 2008, p. 154) such as in colombia (see bell 2013). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 36 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective iv. the case of the congo: exclusion of local ownership from the peacebuilding process iv.1. a story of failure: where is local in the congo peace process? here, the analysis above will be discussed in the context of the case of the congo. the period is defined by the two congo wars and the un organization mission in the democratic republic of the congo (monuc). the congo case is a representative case because, first, it clearly shows the exclusion of the locals from the peace process. second and more important, this exclusion of the locals undermined the top-down approach and precluded peace. therefore, this case clearly illustrates the significance of local ownership. third, the neglect of the locals cannot be based on a lack of capacity, or the reluctance of locals, or anything else in the congo case, other than arbitrary decisions by the peacebuilders. thus, it will be argued that the ignorance of the local was intentional and, in séverine autesserre’s words, was part of the un’s “peacebuilding culture” (2010, p. 10). the study concerns the period starting from the first congo war (1996-97). the exclusion of local actors from the peace negotiations following the first and second congo wars will be analysed first. second, the process by which the local actors undermined the peace process will be described. the intention is to conclude that for a legitimate and sustainable peace, local ownership is a sine qua non. all groups in a post-conflict country should be ‘taken seriously’ and their right to internal selfdetermination should be respected. the first congo war started in 1996 and occurred between at least nine african states. neighbour states of the congo (then zaire) pursued a goal to replace president mobutu sésé seko with laurent kabila and invaded the congo. after negotiations, mobutu left the country and the invader neighbours withdrew. a negotiation for peace started. here it is necessary to emphasize that the negotiation process did not involve the congolese local actors, non-governmental organisations, opposition leaders and so on. however, the war also had local dynamics and local-level causes. since the talks in the negotiation process did not address them, the conflicts were not appeased as a whole. the second congo war broke out as a result of the same reasons. the former supporters of kabila now wanted him to give up the presidency. this time, the neighbour states were not ‘successful’. kabila stayed in post. at the end of the war, a ceasefire agreement was drafted by the un and the organisation of african unity (the oau). despite all the challenges and strife, the lusaka ceasefire agreement (the lusaka) was signed in 1999. after the assassination of kabila, his son joseph became president in 2001. in 2006, elections were held in the country and joseph kabila this time became the first democratically elected president of the country. after this democratic step, the international community hoped that finally the congo would have a sustainable peace (autesserre 2008). however, all the peace agreements and elections the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 37 ebru demir did not bring peace to the congo. this was because the conflict had also local dynamics which were not addressed during the negotiations and in the peace agreement. since the end of colonization, there had been a struggle for land among the congolese (autesserre 2008, p. 130). these conflicts over land created deep-rooted antagonisms between different groups long before wars of the 1990s (ibid p. 133). these local conflicts escalated the violence during the two wars (ibid p. 142). however, the land was not the only issue. the natural resources and local tax payment issues were also significant problems. as a researcher who worked on the congo peacebuilding for a long period, séverine autesserre claimed that the local conflicts had been often autonomous from regional and national conflicts (ibid p. 178). therefore, reasons such as local-level political power issues, national wealth and resources, and social status resulted in battles which could not be ended by a top-down approach (ibid). in other words, regional and national actors and their top-down peacebuilding efforts fell short of addressing the root causes of the conflict. the peace negotiations in the congo case illustrate the fact that international actors tried to find the reasons of the conflict only at the regional or national levels. since only top level issues were taken into consideration, the peace negotiations only included the political and military elites of the congo. to be more precise, during the lusaka negotiations, at the table only the two main armed groups, the government of the congo and representatives of five neighbouring states were sitting (hellmüller 2011, p. 8). international crisis group asserted that this situation did not offer any choice for unarmed actors to have any input for either their future or their country’s future (icg report 1999, p. 4). although a 45-day-long national dialogue and reconciliation process was stipulated for the lusaka negotiations (lusaka ceasefire agreement 1999, chapter 5), this process was never implemented by the government (carayannis 2009, p. 10). to conclude, the locals were continually excluded from the peace process in the congo case. although the conflict had regional, national and local level causes such as land, tax payments and the distribution of natural resources, local issues were not addressed during the peace process. this resulted in the recurrence of the conflict. this exclusion of local actors is not a situation that can be attributed to the circumstances of the case. it has deep-rooted causes: the ‘peacebuilding culture’ of the un. iv.2. ignorance of local actors as a violation of internal selfdetermination: is this a un ‘peacebuilding culture’? in the congo case, it has been seen that neglect of the local is a part of, in autesserre’s term, “the un peacebuilding culture” (autesserre 2010, p. 10). since the participation of locals, in other words local ownership, is not attributed to any legal norm, local actors are constantly ignored in peace processes. this may create a conflict of priorities between local actors and externals. worse, the congo case demonstrates that the application of local ownership can be at times arbitrary, and the involvement of the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 38 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective local groups can depend on the decisions of the peacebuilders in question. in order to prevent this inconsistency and arbitrariness, the un needs to reinterpret local ownership by grounding it in the right of local actors to internal self-determination. in the period with which this study is concerned, the congo hosted the monuc. following the signing of the lusaka agreement, the monuc was sent to the congo to supervise the implementation of the cease-fire agreement in november 1999 (eriksen 2009, p. 657). it was mandated by security council resolution 1279 (para. 2) which encouraged all the congolese to participate in the national dialogue and reconciliation process mentioned above. this can be interpreted as a mandate to promote local involvement in the peacebuilding process. however, the practice shows that the mandate was implemented arbitrarily. this claim will be analysed through an example. as a deputy special representative of the un sg, lena sundh initiated a project in the congo which included local groups into the peace process in 2003 (autesserre 2010, p. 193). under sundh, it was asserted that the conflict had local, provincial and regional dynamics. thus, her team regretted that the peace process was involving only state actors (elites) and the un, even though the conflict had many other actors on different levels (ibid). there were attempts to resolve local tensions over the land and natural wealth and resources by the involvement of locals under the leadership of sundh (ibid p. 196). however, when sundh’s team left the mission, the bottom-up approach again was replaced by the top-down approach. therefore, the land and natural resources issues had not been addressed. how the peacebuilding method of the un depends on the peacebuilders at stake can also be observed in the sg reports on the monuc. when sundh was in post, the reports paid attention to local conflict resolution efforts. in these reports the sg was reporting the benefits of these efforts (un fourteenth report of the sg on the monuc, paras 13 and 14). it was reported that local-level initiatives were effective in the reduction of the conflict at the provincial level (ibid para 13). however, immediately after sundh’s team had left, the subsequent report did not even mention the lack of these efforts (un fifteenth report of the sg on the monuc). it seems that local initiatives were rapidly neglected or forgotten. this case illustrates that local ownership is seen by the un just as a policy which can be implemented to different extents depending on the decision of the peacebuilders. this creates inconsistency, as is shown in the congo case. while the monuc did take into consideration the bottom-up approach in 2003, in the following year this approach was replaced with the top-down one. this caused the neglect of local groups’ priorities. worse, this can result in a conflict of priorities and interests between locals and externals. in the congo, the local population were unable to enjoy their right to internal self-determination from both the political and the economic aspects. as long as the locals were denied any opportunity to take part in domestic affairs, they also could not benefit from the congo’s natural wealth and resources. the reason for this was the the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 39 ebru demir difference in priorities. instead of promoting and facilitating these rights, the monuc focused on the elections. however, it can be seen in the congo case that elections are not the solution for sustainable peace. on the contrary, elections can re-create clashes in a post-conflict society. there is no clear evidence showing whether elections in a post-conflict country can decrease the risk of conflict (ndulo and lulo 2010, p. 156). this is because elections do not address structural problems such as the unequal distribution of natural wealth and resources (autesserre 2010, p. 240). a top-down approach envisions a process of elections as soon as possible. from the perspective of externals, an election is an indicator of a successful peacebuilding operation since it has the potential to create a capable state (ndulo and lulo 2010, p. 169). a top-down approach finds all the reasons of the conflict between regional and national dynamics as happened in the congo. that is why under this approach it is asserted that since all conflicts are the consequences of tensions between these actors, an election would solve all the issues (autesserre 2010, p. 245). however, immediately after the 2006 congo elections, the violence escalated again. especially so in some provinces of the congo where there was a return to all-out war (ibid p. 246). therefore, it seems clear that local conflicts can be capable of undermining top-down attempts to reinforce the peace without addressing the root causes (sisk and risley 2005, p. 5). it is a fact that the un could not manage to accommodate a bottom-up approach in the congo. it was simply not sensitive to the local context. along similar lines, one scholar has argued that the reason for this insensitivity is that un privileges the universal moral over the local (sending 2009, p. 4). the privileging of the elections in the congo can be considered in this sense. rather than addressing the root causes of the conflict such as distribution of land and other natural resources in the context of the congo, the un attempted to legitimize its intervention by applying universal values (huggins 2010, p. 35). that it was not interested in local problems is demonstrated by its assessing the success of the operation over universal values (such as democratic society). however, the application of these values before solving the basic issues did create negative consequences. peace builders should promote internal self-determination. this right has a capability to solve the root causes of the conflict. for instance, economic selfdetermination could solve the land and natural wealth issues. as was pointed out by the ga, the conflict in the congo was a result of the natural resources (namely, diamonds) issue (un ga res 55/56, preamble). according to the resolution, there was a link between conflict diamonds and armed conflict (ibid para. 2). moreover, it was clarified by the sg that the areas involved in the conflict were the very areas in which the exploitation of natural resources was the most widespread. that is why the escalation of the conflict could have been stopped by respecting and facilitating the right to economic self-determination. as discussed above, the enjoyment of economic self-determination could have enabled the congolese to enjoy their other human rights as well. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 40 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective v. conclusion this paper has addressed the gap related to the source of local ownership and put forward the view that the right to internal self-determination may be claimed as the source of the concept of local ownership. the right to internal self-determination of the local actors in a post-conflict country makes the concept a legal obligation for the un. thus, this study has been an attempt to re-explore or re-interpret the concept of local ownership from a legal standpoint. the significant consequence of this reinterpretation has been the identification and clarification of local actors. both un documents and the literature on local ownership show no consensus on the identity of local actors. whilst some scholars support political and military elites under the approach of national ownership, others claim that ownership should be more local-inclusive and bottom-up. both views have benefits and costs. the former view, which has also been supported by the un to some extent, supports the partnership of the elites since involvement of more actors can undermine a consensus and complicate the peace process. the latter view, however, claims that for a legitimate peace process, the voices of all different interest groups should be heard. therefore, it seems that peacebuilders are supposed to choose either sustainability or legitimacy, but not both. this is because from these two different perspectives, the realization of both sustainability and legitimacy at the same time seems difficult. this article has sought to address this issue by identifying the local actors from a legal perspective. it defends the view that what really matters is relying on a legal ground when deciding on the local owners to create consistency between peacebuilding operations. the holders of the right to internal self-determination have been advocated as the actors with whom the un is obliged to manage a peacebuilding operation. for this reason, the nature of the right to internal self-determination has been identified and the development of the right to self-determination has been traced using a human rights approach. the holders of the right to internal self-determination have been found to be ‘groups of any distinction’. since internal self-determination is a collective right, it aims to protect groups which have any distinction in a society. the study puts forward the view that the un is under an obligation to collaborate with these groups in a post-conflict society. in other words, all groups in a society having distinction of any kind, such as race, creed, gender, religion, language and so on, should be counterparts of the un in peacebuilding processes from the perspective of internal self-determination. these groups should have a right to take part in the public affairs of their country and should be represented in the legislative, executive and judicial bodies of the state concerned (political self-determination). furthermore, they should freely dispose their natural wealth and resources without oppression, and the resources should be equally distributed for the benefit of the groups (economic self-determination). the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 41 ebru demir the significance of the actors has been illustrated and discussed in the context of the congo case. the congo case has confirmed that different locals have different interests and priorities in a peacebuilding process. when the un collaborates only with political and military elites, their interests and priorities can conflict with the majority’s interests and priorities. nevertheless, some scholars have claimed that the inclusion of more actors complicates the peace process and makes it difficult to create a consensus in a post-conflict country. however, the congo shows the exact opposite. the congo case has some crucial lessons for future peacebuilding operations. in the congo, under a top-down approach, the causes of the conflict were identified as national and regional dynamics. the power struggle between these dynamics has been claimed as the main reason for the conflict(s). as a result of this, it has been defended that elections could solve the issue and put an end to all conflicts. however, the conflicts in the congo had different levels. top-down remedies could not create any solutions for the local-level conflicts. the root causes of the local-level conflict in the congo were the distribution issues of the land and other natural resources. different groups there had always clashed with each other because of the land issues. it is also a fact that there had long been a link between natural resources and armed conflicts in the congo as the ga resolutions have repeatedly confirmed. however, these tensions have not been addressed and the roots of the local-level conflict has not been paid attention but have simply been disregarded. the local ownership approach should be re-accommodated by the un by grounding it on the right to internal self-determination. thus, the participation of locals should be considered as a legal obligation and the identification of local actors should be revised under internal self-determination. the relationship between internal selfdetermination and peacebuilding needs to be explored by both the un and the peacebuilding literature. the right to internal self-determination offers a legal ‘checklist’ for the un to provide both legitimacy and sustainability to peacebuilding processes. the right to internal self-determination needs enforcement mechanisms to be binding and respected. the hrc should revisit its opinion over the admissibility of communications under this right. the current practice of the hrc makes this right nonjusticiable. especially, the internal self-determination right of post-conflict societies can be recognised and crystallised with possible cases. this would also help to clarify the distribution of the tasks of externals and local actors in relation to the peacebuilding process. clarification of the tasks is of vital importance since the ambiguity militates against the local actors and prevents them from exercising their right to internal selfdetermination. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 42 the right to internal self-determination in peacebuilding processes: a reinterpretation of the concept of local ownership from a legal perspective references alston, philip (ed.) 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(2011). whose peace? local ownership and un peacebuilding. [online]. special issue of the journal of intervention and statebuilding. http://oneearthfuture.org/sites/oneearthfuture.org/files/images/content/news/norwegian missionprogram.pdf. white, nigel (2009). peace operations. in: chetail, vincent (ed). post-conflict peacebuilding: a lexicon. oxford, oxford university press, 213-227. wolff, jonas (2014). the question of self-determination in international democracy promotion. [online]. peace research institute frankfurt working paper no:19 https://www.files.ethz.ch/isn/184718/prif_wp_19.pdf . wong, pearly (2013). local ownership in peacebuilding: a premature rhetoric? united nations university peace and progress 1 (1), 47-57. the age of human rights journal, 8 (june 2017) pp. 18-48 issn: 2340-9592 doi: 10.17561/tahrj.n8.2 48 the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 91 the social model in the international convention on the rights of persons with disabilities agustina palacios 1 abstract: any analysis to be performed regarding disabilities requires a philosophical, sociological and regulatory framework. this paper takes as a starting point a philosophical framework which arises from those values and principles on which human rights are grounded. the sociological framework is built through the social model of disability, and the regulatory framework is provided by the international convention on the rights of persons with disabilities. 2 keywords: disability, human rights, social model, international convention, general principles, dignity, non discrimination. summary: i. an outline of the social model; i.1. the disregarding model; i.2. the rehabilitation model; i.3. the social model; ii. disabilities as a matter of human rights; iii. social model and the approach on human rights provided by the un convention on the rights of persons with disabilities. i. an outline of the social model as it is well known, the social model understands ‘disability’ as a situation derived from social structures and constraints, as opposed to the medical-hegemonic model, which approaches disability as a condition resulting from personal "deficiencies" to be solved by means of policies and performances aimed at normalizing those who "suffer" them (barranco aviles & churruca mugurza, 2014). the social model, which has been shaped, on the one hand, by political activism, and on the other hand, by the development underwent by sociology, is deeply enshrined in the first human rights treaty of the 21st century: the international convention on the rights of persons with disabilities (palacios, 2008). in order to fully understand the social model of disability, it is worth performing a brief overview of some of the preceding paradigms on the subject matter. throughout history, it is possible to identify several approaches on disabilities. in previous works, i 1 conicet associate researcher, centro de investigación y docencia en derechos humanos “alicia moreau”, facultad de derecho, universidad nacional de mar del plata (aguspalacios@hotmail.com). 2 approved by the general assembly on 13 december 2006 and entered into force in may 2008. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 92 have pointed out the differences between those approaches by means of three models: the disregard model, the rehabilitation model and the social model of disability. 3 i.1. the disregarding model on the basis of this first model, the causes for disabilities have been considered to be religious. according to this model, people with disabilities were unnecessary due to different reasons: they were deemed as useless for the community, they allegedly bore evil messages, they were the result of god's anger, or their lives -because they were so miserable-, were not worth living. consequently, society decided to disregard people with disabilities, either through the enforcement of policies which nowadays would be considered to be eugenic, or by placing them right by the mentally retarded and the poor. within this model there are two sorts of paradigms or sub models to be pointed out, which -although they are grounded on the same premises concerning the origins of disabilitydo not share their consequences or their main features: a. the eugenic sub model, for the purposes of clarification, could be located on the classical period of ancient history. in the greek and roman society, based on religious and political reasons, the growth of disabled children was tremendously undesirable. moreover, the explanation for why some children born with functional disabilities was religious: in ancient greece, the birth of a disabled child was the result of a sin committed by the child's parents. in rome, it was interpreted as a warning that the alliance with the gods and goddesses was no longer in place. in addition, the common understanding that a disabled person's life was not worth living along with the fact that it was deemed to be a true burden -either for the parents or for the remaining members of the community-, lead to the shared view that it was better to disregard these people through eugenic means, such as infanticide of children with functional diversities. b. the exclusion sub model: although many of the defining characteristics of this sub model have consistently appeared throughout history, an illustrative example can be found in the treatment provided to people with disabilities in the middle ages. they were placed in the group of poor and marginalized people, predestined to be excluded. while the medieval religious explanations were different from those alleged by the ancients, and even when within christianity the explanations were fluctuant-the power of god or the consequence of the original sin or the devil's work from the superstitious beliefthe fact is that functional diversity was considered an immutable situation that had to be accepted with resignation. priests and doctors were responsible for diagnosing whether a strange behavior was due a natural process or if it otherwise had an evil nature. however, as aguado díaz highlights, in many occasions the medical 3 this will be based on the models exclusively identified and developed in palacios, a. (2008) el modelo social de discapacidad: orígenes, caracterización y plasmación en la convención internacional sobre los derechos de las personas con discapacidad. madrid: cinca. see also, cuenca gomez, p. (2011) derechos humanos y modelos de tratamiento de la discapacidad”, papeles. el tiempo de los derechos. 3. p.1-16. agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 93 examination was subject to a theological rationale (aguado díaz, 1995). this submodel's main defining characteristic is exclusion, either stemming from the understanding that the disabled are to be underrated and pitied, or due to fear or rejection as a result of the curses affecting them or because they are inherently dangerous. in other words, exclusion is the answer which brings tranquility to society: on the basis of fear or disparagement. therefore, unlike the eugenic sub-model, there is no infanticide, although the majority of children with disabilities die as a result of omissions. charity, mendacity and be the object of fun, have been the means of subsistence for them (longmore & umansky, 2001; scheerenberger, 1984; sticker, 1999). i.2. the rehabilitation model this model understands that disability stems from a deficit of the person. the disabled are no longer deemed as useless or unnecessary prima facie, as in the previous model, but only as long as they are rehabilitated. this paradigm mainly aims at normalizing people, even if that entails making their disabilities disappear or hiding them. the main "problem" is thus the person, or better said, its limitations. therefore, it is essential to physically, psychically and sensorially rehabilitate disabled people. although the first signals given by the rehabilitation model can be traced back to the first years of the modern world, 4 the consolidation of the model -particularly in the regulatory arenacan be found in the early 20th century, at the end of the great war. disability is considered exclusively a problem of the person, produced by disease, accident or a health condition that requires medical care provided by professionals in the form of individual treatments. as a result, the treatment of disability is aimed at healing the person, improving its behavior, or adapting him or her to life. disabilities are addressed exclusively within the social welfare and social security regulatory framework, or within the rules and regulations addressing incapacitation and guardianship. primary care is absolutely central, and, in terms of public policy, efforts concerning healthcare, institutionalization, special education and sheltered work are central (world health organization, 2001). paradigm has meant, in turn, an important achievement in the field of recognition of certain rights of persons with disabilities progress, but however, it is criticized for various reasons. 5 fundamentally -in terms of its theoretically justification 4 juan luis vives' works illustrate this model. see puig de la bellacasa, r. (1993) la discapacidad y la rehabilitación en juan luis vives. homo homini par. madrid: real patronato de prevención y de atención a personas con minusvalía. 5 this criticism are addressed to a model grounded on a particular ideology, yet by no means shall be construed to be oriented towards the rehabilitation process with respect to functional diversity of a disabled person, a totally useful and necessary tool. see abberley, p. (1998) trabajo, utopía y deficiencia. in: barton, l. (ed) discapacidad y sociedad. madrid: morata s.l.; bernes, c. (2000) disabled people in britain and discrimination. a case for anti-discrimination legislation. 3 rd .ed. london: hurst and company; barnes, c. (1998) las teorías de la discapacidad y los orígenes de la opresión de las personas discapacitadas en la sociedad occidental. in barton, l. (ed) discapacidad y sociedad, cit.; morris, j. (1996) encuentros con desconocidas. feminismo y discapacidad. madrid: the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 94 it is criticized that the successful integration pursued by this model -even when it depends on a variety of strategies of assimilationindicates the existence of a disturbed ideology called for sticker (1999) as the social ideal of the eraser. in this connection, the passport to integration turns to be dissapearance or, better said, the suppression of the existing differences. this is due to the fact that people with disabilities are construed as deviated from an alleged standard of normality. however, this model ignores that the setting of these parameters of normality is not neutral, it is biased in favor of physical and psychological parameters of those who constitute the culturally dominant stereotype (courtis, 2004). in accordance with iris marion young, it is necessary to underlines that the meaning of "standard" or "impartial" owes much to two ideological functions. firstly this appealing to impartiality feeds cultural imperialism as it allows that the experience and perspective of privileged groups to be presented as universal. secondly, the belief that bureaucrats and experts are able to perform their decision-making power in an impartial manner, legitimizes the authoritarian hierarchy (young, 2000). precisely the influence of social factors in creating the phenomenon itself is addressed in another model of disability, which is described in the following section. i.3. the social model the social model's philosophy changes the focal point of the disability "phenomenon." disability is no longer explained on the basis of personal "deficiencies," to move to be explained by those deficiencies of society as a whole, which result in disabling obstacles (brogna, 2012). therefore, it is considered that the causes of disabilities are predominantly of a social character; and that people with disabilities can fully participate in society, respecting their consideration as persons, who in certain features or concerning certain conditions differ from the average person (cuenca gómez, 2014). this model is closely tied to the assumption of values inherently related to human rights, and aims to promote respect for human dignity, equality and personal freedom, promoting social inclusion(de asís roig, 2013; cuenca gómez, 2014). this is based on certain principles: independence, non-discrimination, universal accessibility, standardization of the environment, participation, etc. the starting point consists in stating that disability is a theoretical construct and a tool for social oppression, as well as the outcome of a society which neither considers nor acknowledges persons with disabilities. similarly, it calls the attention on personal autonomy in order to support the right of people with disabilities to decide freely about their own lives, and for that purpose it focuses on removing any obstacle to provide equal opportunities (palacios, 2008). essentially, the social model has risen, has been developed and has been built from the rejection of the premises from the preceding model. one of the social model's narcea; oliver, m. (1998) una sociología de la discapacidad o una sociología discapacitada?. in barton, l. (ed), discapacidad y sociedad, cit.; silvers, a., wasserman, d. & mahowald, mb., (1998) disability, difference, discrimination. perspective on justice in bioethics and public policy. new york: rowman & littlefield publishers. agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 95 core premises asserts that disabilities do not stem from individual causes -as it is argued by the rehabilitation model-, but from predominantly social causes. the phenomenon is not rooted on individual constraints, but on society's limitations to provide services and to adequately ensure that the needs of the people with disabilities are taken into consideration when organizing society as a whole. 6 the social model requires a re-examination of the design and implementation of policies on this matter. thus, if the causes of the disability are social, the answers shall not be individually oriented, but rather expected to be found in society. moreover, the previous model focuses on rehabilitating or normalizing persons with disabilities, whereas the model under examination here advocates for the rehabilitation or normalization of society, which must be thought and designed to cope with universal needs. there is a large overlap between the social approach on disabilities and the underlying values of human rights, i.e.: dignity; freedom as autonomy in the sense of development of the moral subject which requires, inter alia, that the person is the center of the decisions that affect them; the inherent equality of all human beings –comprising the existent differences, which also requires the satisfaction of certain basic needs, and solidarity. (de asís roig, 2004). based on this, in the last few decades, there have been several approaches to answer to needs of people with disabilities on the basis of inherent values on which human rights are grounded. this has generated a different look to the person with disabilities, focusing first on its status as a human being with equal rights and dignity with others, and secondly in a condition (the functional diversity) that accompanies it, and in certain circumstances requires specific measures to ensure the enjoyment and exercise of the rights on equal conditions to other people. (palacios, 2008). to that end, a series of promotional techniques are proposed -such as affirmative action measuresas well as the enshrinement of certain principles with a notable impact on the relevant policies -non-discrimination, exercise of autonomy, independent living, universal accessibility, civil dialogue, universal design, cross-cutting disability policies, and inclusive education, among others-. in fact, these principles pursue the same goal: persons with disabilities should have equal opportunities as other people when designing and developing their own life plans. 7 ii. disabilities as a matter of human rights until recently, understanding disabilities as a matter of human rights was not commonly accepted, and social responses towards people with disabilities have varied throughout history, even during the same period of time and culture (ingstand & 6 it can be considered that the social model was born in england or united states on the late 60s or early 70s of the 20th century. 7 in this connection, see de lorenzo garcia, r. (2003) el futuro de las personas con discapacidad en el mundo. desarrollo humano y discapacidad. madrid: ediciones del umbral. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 96 reynolds, 1995). the role played by a person with disabilities in a given social context has not been dependant on the nature, kind or degree of the disability in question, nor on the personal characteristics or personal of the person in question. on the contrary, it has depended on the conception and dominant social attitudes towards the phenomenon itself (aguado díaz, 1995). as it has been discussed in the previous paragraph, these conceptions and social responses have been far from homogeneous or static, but they do have wavered between two main approaches (palacios, 2014). the first of them falls within the demonological tradition, which deems disabilities as something strange to human nature: sins, god's punishment, and thus an incontrollable and unchangeable situation. the second approach perfectly fits in the naturalist tradition, which deals with disability as an illness, triggered by natural and/or biological and/or environmental causes and thus considers disabilities to be changeable. as a result, this approach promotes prevention and healing treatments, integration strategies, etc (palacios, 2014). the late 20th century has witnessed the transition to a new approach, which falls within the social tradition, on the basis of which disabilities are construed as a complex phenomenon, mainly integrated by social factors. therefore, it aims at removing prejudices, stereotypes, practices and obstacles which prevent people with functional diversities 8 from getting involved in society on an equal basis with everyone else. this new system has laid the foundations for disabilities to be framed by the human rights discourse. in the theoretical arena, sociology laid the foundations in order to justify approaching disability from a different perspective: the social model, on the basis of which disabilities are the result of the interaction between the condition of a given person (a physical, mental, intellectual or sensory diversity) and social barriers preventing him or her from fully participating in society. furthermore, the defining lines of disability as a "phenomenon" are modified thereby, and disabilities cease to be explained -in a reductionist manneras personal "deficiencies," starting to be construed as a consequence of the interactions between people and their surroundings (or as the result of the various "deficiencies" of society as a whole) (brogna, 2012). if disability is considered to stem from social causes, the answers shall not be individually oriented, but rather targeted to society. in this connection, the social model stresses the importance of not emphasizing on rehabilitation or creating a standard setting for the individual, and advocates for rehabilitating or normalizing the society, which should be thought and designed to cope everyone's needs. this model is closely tied to certain principles which account for the grounds for human rights: dignity; freedom as meaning autonomy, -in the sense of development of 8 the term “functional diversity” is preferred over the notion of “deficiency”, or “condition” because in such a way the negative connotation of the words referring to the features of human beings is removed. see palacios, a. and romañach, j. (2007) el modelo de la diversidad, madrid: diversitas. p. 3437. agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 97 the moral subject -which requires, among other aspects, that the person becomes the center of any decision that affects him/her; inherent equality in any human beingconsidering the existing differences-, which at the same time requires the satisfaction of some basic needs; and solidarity (de asís roig, 2004; cuenca gómez, 2014). as it has been asserted in previous works, understanding disabilities as a matter of human rights is not only about semantics (palacios, 2014) it also gives rise to certain outcomes in the regulatory, axiological and sociological arenas. 9 in the regulatory scope, both international law instruments of human rights and national rules and regulations have dealt with this subject from this perspective. see, for instance, the approval of the first human rights treaty in the 21st century, which addresses -humanrights of the people with disabilities and which will be discussed in the following section. in the axiological arena, this notion compels us to rethink the notion of disability on the basis of the human rights discourse, which leads to break down the very idea of human dignity, from a different perspective which shall go beyond certain perspectives grounded on abilities or in individual characteristics. 10 as rafael de asís has clearly stated, the human rights discourse and its focal point, the idea of dignity, are grounded on an understanding of individuals characterized by its capacities, particularly by its rational capacity, and by performing a given role in society which takes into account the empowerment of individuals and their contribution or social utility (de asís roig, 2013). this characterization has had a notable impact on the exclusive consequences concerning the disabled (cuenca gómez, 2014). similarly, it has remarkable implications as for the sociological dimension, which calls for a different vision when drafting and implementing public policies on this matter (acuña & bulit goñi, 2010). in the first place, it requires acknowledging and respecting functional diversity of a person as a natural element of human diversity, just as race or gender (as well as dealing with specific biases regarding disabilities, attitudes, and other elements that hinders a full enjoyment of human rights) (brogna, 2009). secondly, it is central to assume the responsibility of ensuring that rights are exercised with no discrimination on the grounds of disability, both on the government's side (the ultimate responsible) and on society's side. finally, the main implication is related to the non-consideration of people with disabilities as subject to social welfare policies, but as entitled to rights, on an equal basis with others. 9 in this connection, see the tridimensional theory of law posed by goldschmidt, w. (1976) introducción filosófica al derecho. 5th ed. buenos aires: depalma. 10 this is far beyond the purpose of this paper, but it can be found with an in-depth development in: palacios, a. (1998) el modelo social de discapacidad: orígenes, caracterización y plasmación en la convención internacional sobre los derechos de las personas con discapacidad. madrid: cinca, p. 154. see also the fantastic work of cuenca gomez, p. (2012) sobre la inclusión de la discapacidad en la teoría de los derechos humanos. revista de estudios políticos. 158. p. 103-137. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 98 although stating that persons with disabilities are right holders may seem obvious, it is clearly not that obvious once we take a look at the afore historical record stated and at the infringements suffered thereby when they try to exercise their rights "on the basis of the said disability". 11 for a very long time, this has brought along their consideration as entitled to healthcare and social welfare policies, but not as legal subjects, or sometimes, even dealing with them as "legal subjects" has been conditioned by the degree and/or kind of disability, or by the differentiation between the rights to be afforded to them. 12 iii. social model and the approach on human rights provided by the un convention on the rights of persons with disabilities the international convention on the rights of persons with disabilities sets forth the human rights standards that should not to be missed when it comes to disability. it contains 50 articles by means of which it addresses substantive rights on the basis of a non-discrimination clause in the context of disabilities. for the purposes of brevity and because it would be far beyond the subject of this paper, only certain concepts and general principles which are deemed to be true focal points of this regulatory instrument will be briefly discussed herein. the purpose of the treaty is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” ( art.1 crpd, 2006). based on two fundamental principles -inherent dignity and non-discriminationone of its main goals has been to adapt the relevant human rights treaties provisions to the context of disability (quinn, 2006). the crpd adopts the social model of disability from its preamble, which asserts that "disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others" (preamble crpd, 2006). the social model's conceptualization is also reflected on article 1, when it sets forth that "persons with disabilities include those who have longterm physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others" (art.1 para.2 crpd, 2006). 11 mental disability rights international and centro de estudios legales y sociales (2007) vidas arrasadas. la segregación de las personas en los asilos psiquiátricos argentinos. un informe sobre derechos humanos y salud mental. washington dc: mdri. 12 this can be shown by the process carried out by the united nations in the drafting of the crpd, for instance, regarding legal capacity. see palacios, a. (2012) reinterpretando la capacidad jurídica desde los derechos humanos. una mirada desde la convención internacional sobre los derechos de las personas con discapacidad. in palacios, a. and bariffi, f. (eds.) capacidad jurídica, discapacidad y derechos humanos. una revisión desde la convención internacional sobre los derechos de las personas con discapacidad.buenos aires: ediar. p. 210-236. agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 99 in this connection, it highlights two main issues. firstly, that disability is an evolving concept and not an absolute one. secondly, that disability is the combined result of individual functional diversities and the attitudinal barriers of persons and the environment. these barriers limit and even avoid the participation of persons with disabilities on an equal basis with others. on the other hand, it is central to remark that the convention's definition is not close-ended, but rather it comprises the mentioned people, thus this article shall be interpreted as floor (a starting point) from which any other interpretation that benefits or extend its protective framework should be applied. right by this rule, the concept provided by the convention about "discrimination on the basis of disability" shall be read, as it understands that discrimination means "any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. it includes all forms of discrimination, including denial of reasonable accommodation” (art.2 crpd, 2006). reasonable accommodation means, according to the crpd, "necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (art.2 crpd, 2006). the provision discussed hereby shall be examined along with article 5, on equality and non-discrimination. 13 both rules agree on the fact that what is prohibited is discrimination "on the basis of" disability. hence, gerard quinn shows that the valuable part of that wording is its ability to stress the importance of the phenomenon of discrimination, regardless of the particular features of the person in question (quinn, 2007). 14 similarly, the rule establishes that discrimination can be triggered by any 13 “1. states parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. states parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. in order to promote equality and eliminate discrimination, states parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present convention”. 14 the foregoing implies acknowledging that people can be discriminated against "on the basis of" disability even if they are not disabled, while being treated on a discriminatory fashion because they are considered to have a disability. this was the stance of the canada supreme court in 2000, in the mercier affair, where a tendency was established and applied to lower courts with respect to the inclusion of subjective perceptions on disability within the definition of disability. quebec (commission de droits de la personne et des droits de la juenesse) v montreal; quebec (etc.,) v boisbriand (city), [2000] 1 s.c.r. on the other hand, those people who can be susceptible to having a disability are also subject to being discriminated against "on the basis of" disability, even if they do not have it at that time. quinn points out that, in that case, once again, if the focus is left on discrimination, then it makes sense to assert that this category would also be covered by the protective scope of the anti-discrimination law provided by the convention. similarly, there may be other people who are not disabled, but who work with or are related to people who do have disabilities. this would include, for instance, a disabled child's mother or father who was seeking a new place in the labor market or who was trying to enroll in a healthcare plan. these the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 100 distinction, exclusion or restriction on the basis of disability that has the purpose or the effect. therefore, when assessing a given action, practice or rule, it is not relevant nor accounts as a cause of exemption the lack of intention to discriminate, since what really worries the crpd is assessing whether the "effect" entails the infringement of the enjoyment or exercise of a given right on an equal basis (palacios, 2008). the principles enshrined in the convention portray the social model's philosophy and are particularly important when drafting policies, interpreting or enforcing its clauses, as well as when inquiring on the rights protected thereby along with the obligations established. according to article 3, these are the following: “a) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; b) non-discrimination; c) full and effective participation and inclusion in society; d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; e) equality of opportunity; f) accessibility; g) equality between men and women; h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.” paragraph a) refers to three closely related principles or values -dignity, autonomy and independence-, which could be summarized in the first of them, i.e., the idea of human dignity. the notion of human dignity is the keystone on which human rights are grounded. it is the backbone of the human rights sub-system. this notion reinforces the idea that people with disabilities have a role to play in society, which must be taken into account regardless of any economic or social utility consideration (quinn, 2006). it is necessary to note that if we take the value of autonomy as a starting point, the mere idea that each and every person is self-sufficient, we can clearly notice that persons with disabilities are still denied their right to make their own decisions about their lives. from the social model, the right answers for those people who see how their functional autonomy is constrained -or for those who are perceived with such restrictionis no other than supporting their autonomy, and by no means superseding it. 15 this principle, which comprises dignity, autonomy and independence, constitutes the focal point in virtue of which the convention shall be construed and enforced. although it is embedded in each and every article, it is particularly reflected in articles 12 and 19, on equal recognition before the law and on living independently and being included in the community respectively. 16 people run the risk of being discriminated against “on the basis of disability” just because their relatives are disabled. idem 15 this is the paradigm clearly embedded in article 12 of the convention regarding legal capacity. 16 the mentioned provision sets forth that the states parties: “states parties to the present convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b) persons with disabilities have access to a range of in-home, residential and other agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 101 paragraphs b), c), d) and e) comprise four principles; namely: nondiscrimination (par. b); full and effective participation and inclusion in society (par. c); respect for difference and acceptance of persons with disabilities as part of human diversity and humanity (par. d); and equality of opportunity (par. e). these four principles account for distinct facets of the principle of equality, which entails assuming that every person is of inestimable value as human beings, and that the said value is the same for everyone, regardless of any personal condition, beyond any physical, mental, intellectual or sensory diversity. at this moment, some very complex issues come into play, which have been summarized by means of framing this group of people who suffer situations of vulnerability and within a description which is not easy to counteract, which can be summarized by saying that people with disabilities are socially excluded. hence, we can assert that every access point to daily life structures -education, employment, family, social interaction, etc. is mainly established with respect to the norm -in this case, that of those who are not disabled-. in this connection, as normally there is no adaptation foreseen as for deviations or differences with respect to the chosen norm, differences provide the basis for subtle (and sometimes not that subtle) discriminations (degener & quinn, 2000). and even though there are various manners of dealing with the right to equal treatment and fighting against discrimination, within the convention there is a consensus about the choice of this right in its version of equality of opportunity (campoy cervera, 2005). the convention assumes, through its principles and by means of the rights covered thereby, an overarching notion of equality, which is not just non-discrimination -formal equality-. it embraces equality of opportunity, which in certain cases requires active measures -material equality-, which necessarily entail respecting the difference and accepting persons with disabilities as part of human diversity and human condition. this obviously brings along implementing policies concerning recognition, aimed at accomplishing full and effective participation of persons with disabilities in society. 17 in this vein, within the context of disability (as with all vulnerable groups of people) the implementation of affirmative action measures and redistributive policies shall be accompanied by policies pursuing recognition of people with disabilities and their situation in order to achieve the goals and be truly effective. 18 community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” see maraña, j. and lobato, m. (2003) el movimiento de vida independiente en españa. in vidal garcía alonso, j. (eds.) el movimiento de vida independiente. madrid: fundación luis vives; and de asis roig, r. and palacios, a. (2007) derechos humanos y situaciones de dependencia. madrid: dykinson. 17 on this subject, see: young, i. m. (2000) la justicia y la política de la diferencia. madrid: catedra. 18 it seems fairly obvious that what the social model's philosophy has always deemed important regarding persons with disabilities is nothing but their difference. however, the claims from this model have focused on the right to equality, yet rejecting to get into even considering their differences. maybe this is due to the fact that persons with severe disabilities have not undergone a trouble less transition from exclusion to equality. see morris, j. (1996) encuentros con desconocidas. feminismo y discapacidad. madrid: narcea; silvers, a. (1998) disability, difference, discrimination. perspective on justice in bioethics and public policy. new york: rowman & littlefield publishers inc. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 102 finally, it must be taken into account that the aforementioned principles are enshrined in article 5, on equality and non-discrimination, and throughout the convention, at the time of guaranteeing each and every substantive right protected thereby (rosales, 2013). another principle stemming from the social model which is also closely tied to equality is universal accessibility. the obstacles faced by persons with disabilities when exercising their rights are the result of a society exclusively thought for an average standard person (the model of which is normally provided by a non-disabled man). in order to remove these barriers, the crpd puts forward various strategies, which require a wide and inclusive look at human diversity. universal accessibility accounts for the main strategy, since it ensures that every person is able to gain access, to participate. it is an implied condition for the exercise of rights. ultimately, it is part of the core content of every single one of them. in order to achieve this accessibility condition there are two supplementary strategies to be put in place: universal design (for every men and women) and reasonable accommodation. universal design involves, from the starting point, conceiving or projecting environments, processes, goods, products, services, objects, instruments, devices or tools, so that they can be used by every person. by means of universal design, the attainment of universal accessibility is attempted. it is the means, the instrument, and the activity aimed at achieving that goal. 19 reasonable accommodation means every adjustment aimed at adapting the surroundings to the specific needs of certain persons, who, due to different reasons, are in a special situation which has not been able to be foreseen through universal design. these adjustments tend to ensure participation on an equal basis. 20 the very notion of reasonable accommodation shall not be limited to disability, since any person can be (or in fact is) subject to reasonable accommodation. taking into consideration all of the foregoing, it could be asserted that accessibility is the ideal situation, universal design would be a previous general strategy to achieve that ideal situation, and reasonable accommodation would be a particular strategy to be put in place when the universal design preventive purposes do not ensure accessibility. in previous papers, it has been stated that these concepts are sufficiently developed within the architectural and communicational accessibility scope; and to a lesser extent, with respect to the attitudinal accessibility, where it is necessary to add a 19 article 2 of the crpd 20 idem agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 103 strategy in order to aspire to universal accessibility: support systems (palacios, 2012). 21 the support scheme provided by the crpd is based on the assumption that the person does not need a protective measure depriving him or her from exercising his or her legal capacity. on the other hand, what is truly required is a set of measures, aimed at providing the necessary assistance in order to allow the exercise of the said legal capacity. 22 this entails creating and/or adapting tools intended to grant access to the exercise of legal capacity, i.e., decision-making in its own name with the necessary support in virtue of his or her specific needs (in other words: "a custom suit"). 23 the convention embraces accessibility in various forms, among others, as a principle in paragraph f) in article 3 and as a right in article 9. it is central to highlight that universal accessibility has been foreseen not only as a right but also as a principle, since this right-principle turns out to be an essential precondition for the exercise of rights -on an equal footingfor everyone, as well as for ultimately attaining human dignity on an equal basis along with an unrestricted development of personality. on the other hand, and the importance of this should be stressed, if the convention assumes that disability is a complex phenomenon, integrated by social factors which translate into obstacles, universal accessibility becomes one of the best ways of preventing disability. along these lines, it could be asserted that disability prevention is comprised both by preventive measures (such as those applied to car accidents) as well as those designed to preventing the construction of inaccessible environments. obviously, in the light of its subject matter and its scope, the prevention enshrined in this convention under examination falls within the second kind of measures. in addition, the convention clearly establishes that the lack of universal accessibility can be translated into discrimination. it is explicitly set forth in relation to the absence of reasonable accommodation in article 2, when defining discrimination on 21 see also, cisternas, m. s. (2012) las obligaciones internacionales para los estados partes en virtud del artículo 12 de la cdpd, vínculos con el artículo 13 e impacto en el derecho interno. in palacios, a. and bariffi, f. capacidad jurídica, discapacidad y derechos humanos. buenos aires: ediar; rosales, p. (2012) discapacidad, justicia y estado: acceso a la justicia de personas con discapacidad. buenos aires: ministerio de justicia y derechos humanos de la nacion; cuenca gómez, p. (2010) estudios sobre el impacto de la convención internacional sobre los derechos de las personas con discapacidad en el ordenamiento jurídico español. madrid: dykinson. 22 on this subject, see cuenca gómez, p. (2012) los derechos fundamentales de las personas con discapacidad. un análisis a la luz de la convención de la onu. madrid: universidad de alcalá; bariffi, f. (2014) el regimen jurídico internacional de la capacidad jurídica de las personas con discapacidad y sus relaciones con la regulación actual de los ordenamientos jurídicos internos. a thesis submitted in partial fulfilment of the requirements of university of carlos iii of madrid for the degree of doctor in law. 23 it is also necessary to clearly differentiate between different kinds of "support." this differentiation shall be firstly established with respect to the kind of action, and secondly in relation to the necessary kind of support element. regarding the first statement, it is necessary to differentiate between actions which are essential to life as a whole (marriage, maternity, surgeries, purchase and sale of a house, donations) and those necessary for everyday life (daily transactions, travelling, joining a sports club). with regards to the second statement, it is essential to make available for the disabled person in question different kinds of support elements, adapted to his or her particular situation. an in-depth study can be found in palacios, a. and bariffi, f. (2012) capacidad jurídica, discapacidad y derechos humano. buenos aires: ediar the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 104 the basis of disability, but it is fairly evident that the inaccessibility would fit into "any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms" provided thereby. 24 another principle enshrined in article 3 is equality between men and women. 25 in this regard, the convention's approach is twofold. on the one hand, a specific article on the subject matter, and on the other hand, the cross-cutting nature of the gender perspective throughout the legal instrument. during the drafting stage, it was hard to decide whether it was convenient to put in place just one article on disabled women, a cross-cutting perspective throughout the convention as a whole, or both. it was finally decided to put in place the said twofold approach, which on the one hand implies a specific article -for visibility purposesand on the other the cross-cutting nature of the gender issues throughout the convention -although some could say that this cross-cutting character did not touch on every article. 26 thus, the specific article is worded as follows: “article 6. women with disabilities. 1. states parties recognize that women and girls with disabilities are subject to multiple discriminations, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. 2. states parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present convention.” this specific provision acknowledges, among other issues, the transversal discrimination suffered by women with disabilities, along with the obligation to implement measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. 27 furthermore, as it has been asserted, the convention 24 on this subject, see asis roig, r. (2007) sobre la accesibilidad universal en el derecho. madrid: dykinson 25 see pelaez narvaez, a., and villarino, p. (2012) la transversalidad del género en las políticas públicas de discapacidad. madrid: cinca; serra, m.l. (2014) feminismo y discapacidad. derechos y libertades. 31. p. 251-274 26 the advantage over a specific article was to call the states' attention on the main gender issues at stake, as well as on the need to implement specific measures aimed at solving gender issues. however, some delegations put forward that they feared that it would happen what happened with the convention on the rights of the child, which was subsequently construed by the states parties as if children with disabilities were only covered by article 23, and not by the remaining provisions. the work following the convention on the rights of the child showed that states only informed about children with disabilities by means of article 23, just applying that provision, and they did not draft any report whatsoever on the situation of children's rights on the basis of the convention as a whole (in a cross-cutting manner). 27 as for disabled women, rights may be subject to restrictions, constrains and/or infringements, which result from a structural and transversal discrimination (regularly suffered by women with disabilities). this sort of discrimination is not set up by a mere addition of conditions (gender and disability) in given simultaneous discrimination situations, but it is actually triggered by a new condition stemming from those factors combined, and this new condition is more complex than the mere addition of the said factors, and many other conditions may be added to the latter. barrere unzueta, m.a. and agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 105 chooses a cross-cutting perspective when it comes to ensuring certain rights, which is embedded in those articles regulating awareness-raising (article 8), freedom from exploitation, violence and abuse (article 16), health (article 25), the right to an adequate standard of living and social protection (article 28) along with the formation of the committee on the rights of persons with disabilities (article 34). notwithstanding certain omissions (palacios, 2012), it is considered that the convention shall be given credit particularly because of this twofold approach. that is why the provisions which required a gender perspective and did not have it may be covered by article 6, the preamble and the remaining human rights protection instruments by means of a systematic interpretation applicable in full to disabled women. the last principle provided by article 3 involves respect for the evolution of the abilities of children with disabilities as well as for their right to preserve their identity. 28 as boys and girls acquire natural capacity, they are able to exercise their own rights by means of their increasingly acquired legal capacity. however, with regards to teenage children with disabilities, there is normally a constraint when it comes to the exercise of their own rights. in this connection, the crpd deemed necessary an explicit reference to the rights of disabled boys and girls in relation to their development abilities, facing the risk that, if this was not done, they were excluded de facto. in fact, this conclusion is directly inferred from the principles of dignity, autonomy and independence, and it is also embedded in the right to an independent living along with the right to participate in the community, yet adapted to the circumstances of children and teenagers. 29 as with gender, the convention adopts a twofold approach regarding the protection of children with disabilities. on the one hand, it devotes a specific article, giving visibility to the issue. on the other hand, it adopts a cross-cutting perspective throughout the convention. hence, article 7 on children with disabilities establishes the following: “1. states parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with morondo taramundi, d. (2011) subordiscriminación y discriminación interseccional: elementos para una teoría del derecho antidiscriminatorio. anales de la cátedra francisco suárez. 45 28 regarding their right to preserve their identity, the approach provided by the deaf shall be included, as well as their consideration as a cultural and linguistic minority. in this vein, the crpd regulates sign language from a twofold perspective. firstly -on the basis of the social modelas an accessibility condition; secondly -by acknowledging them as a cultural and linguistic minorityas part of their right to preserve their identity. see cuenca gómez, p. (2012) estudios sobre los derechos de las personas sordas. madrid: dykinson. 29 see, on the application of this principle to children in general, the scholarly work of campoy cervera, i. (2006) la fundamentación de los derechos del niño: modelos de reconocimiento y protección. madrid: dykinson. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 106 other children. 2. in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3. states parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and ageappropriate assistance to realize that right.” in the first place, the provision sets forth a general equality clause with the remaining children, for the attainment of which the states parties undertake the commitment of adopting the measures required to that end. 30 it is a wise provision, which matches the social model of disability in this subject. 31 secondly, the best interest principle is established as a key consideration regarding every activity related to children with disabilities. it is important to highlight that this article's drafting process give rise to interpretations which shall take into account both autonomy and equality but also the specific features of disability and its implications in this context when it comes to clarifying the child's best interest (palacios, 2008). thirdly, it is important to refer to the disabled child's participation in every decision by which he or she is affected. this has a considerable importance from the social model approach, on the basis of which the need to foster autonomy is highly stressed. childhood is taken into account as the context, but the need for children and teenagers to be involved in the decisions which affect them is also highlighted, in the light of their age and maturity. at this point, the convention considers both age and maturity, when considering their opinions (thus establishing an equal treatment as any other child or teenager). these two criteria, age and maturity, in a certain way shall govern any assessment to be performed with respect to their autonomy. these assessments are not to be based upon the kind or degree of functional diversity (as it normally happens) nor on the diagnosis performed on these children, which directly connects us with the philosophy of the social model via the non-discrimination on the basis of disability clause discussed before. these children, to the same extent as any other child, shall be listened to and taken into account when they participate in the decision-making processes by which they are affected. to this end, it is important not to adopt a medical approach focused on their "anomaly" or their diagnosis, yet it is advisable to simply verify the same elements which would be verified if any other child or teenager was to make a decision. on the other hand, from a cross-cutting perspective, the convention assumes throughout its provisions the following issues which have a more direct impact on 30 “1. states parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.” 31 and a way of approaching the rights of children with disabilities, which had already been pointed out in paragraphs p) and, above all, r) of the preamble. agustina palacios the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 107 children, among which the ones listed below are particularly remarkable: the right to political participation (article 4 on general obligations); respect for home and family (article 23); the right to education (article 24); participation in cultural life, recreation leisure and sport (article 30). references abberley, p. 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(1999) a history of disability. michigan: the university of michigan press. the social model in the international convention on the rights of persons with disabilities the age of human rights journal, 4 (june 2015) pp. 91-110 issn: 2340-9592 110 united nations (2006) convention on the rights of persons with disabilities. a/res/61/106 world health organization (2001) international classification of functioning, disability and health. icf. short version. ginebra: who young i. m. (2000) la justicia y la política de la diferencia. madrid: cátedra. the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 26 militarization of public security and violation of human rights in mexico (2000-2020) pierre gaussens1 carolina jasso gonzález2 abstract: this article analyses the militarization of public security in mexico from a human rights perspective to observe the main effects of this policy at the national level in the last twenty years (2000-2020). the methodology used is mixed, combining a quantitative and a qualitative approach. the investigation shows that militarization, far from fighting crime, contributes to general growth in violence and human rights violations. its main result is increasing lethality of security institutions in the use of public force, indicating that an important part of what had been presented as combats with organized crime, are instead extrajudicial executions. this harsh reality is illustrated with a case study based on the events that occurred in tlatlaya in 2014. keywords: militarization; human rights; security; violence; lethality; executions; mexico. summary: 1. introduction. 2. about militarization. 3. militarization of public security in mexico. 4. violence and violation of human rights. 5. lethality in the use of public force. 6. extrajudicial executions: the tlatlaya case. 7. conclusion. 1. introduction in mexico, human rights face several structural problems because of the conjunction of different factors. among them, it is possible to distinguish institutional opacity, widespread impunity, saturation of the judicial system, increase in crime and other dynamics of violence, militarization of public security, and corruption, which allows cooperation between official agents and criminals. in this context, human rights violations acquire new features and are expressed in increasingly complex patterns. paradoxically, as a result of the constitutional reform of 2011, the institutional discourse around the protection of human rights and the constitutional mandate to promote, respect and guarantee them has not only been diminished, but also made impossible in the face of the increase in cases of serious human rights violations committed by state agents. does the deployment of the armed forces in public security tasks inevitably favor the development of conditions for the occurrence of human rights violations? is it possible to respect and guarantee human rights in a militarized context? based on these questions, the aim of the article is to demonstrate the incompatibility between this militaristic paradigm and the defense and protection of human rights, through an analysis and dialogue with the existing literature, including the available empirical evidence. 1 professor at the college of mexico (pgaussens@colmex.mx). 2 masters student at the college of mexico (cjasso@colmex.mx). pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 27 the results presented here are the product of a research work on the effects of the militarization of public security in the field of human rights, at the national level in the last twenty years (2000-2020). therefore, this article starts from a perspective of historical sociology that allows us to follow the evolution and trace the process of development of the phenomenon, even considering the previous decades, particularly the nineties, essential to understand the genesis of militarization as politics. the methodology used is mixed and documentary, that is, it is based on both descriptive statistical elements and qualitative tools, through research work that allowed reviewing various sources of information: results of academic research, reports and recommendations on human rights, legal documents such as laws, budgets, and judicial decisions in cases of human rights violations — as well as official statements and press articles. finally, in order to illustrate the results of the descriptive statistics, we have used the methodology of the case study to delve into a case whose singularity is representative of the problem under investigation. in addition to the introduction and conclusions, the article is divided into five sections. the first develops a theoretical discussion to propose a definition of militarization that allows a better understanding of the phenomenon. in the second section, the historical process of militarization in mexico is analyzed in relation to institutional changes and the evolution of public spending. the third section studies the increase in violence and human rights violations in the context of this militarization, while the fourth takes the lethality of the public force as the unit of analysis. finally, the last section illustrates the problem of extrajudicial executions by reviewing the tlatlaya case, which is emblematic of the human rights crisis in mexico today. 2. about militarization several problems arise when talking about militarization. as eissa and gastaldi (2014) note, this situation has not generated an extensive discussion in the latinamerican academic field. its meaning is often taken for granted or, on the contrary, its use is avoided due to the perception of some ideological connotation which is inseparable from this same lack of conceptualization. in addition, the predominant quantitative perspective, articulated around international indexes, tends to reduce the phenomenon to its measurement, by focusing on budgets, numbers of troops and weapons. although these numbers are important to get an idea about military spending, they do not account for the qualitative processes that accompany the exercise of these budgets. as morales and pérez ricart (2014a, p. 10) warn, models constructed from this perspective are “easy to operationalize, but restrictive and incapable of portraying the dimensions and dynamics of militarization that go beyond the formal borders of military institutions.” some works have theorized the concept of militarization, such as those of hathazy (2016), hall and coyne (2013), as well as, in the mexican case, those of alvarado and zaverucha (2010) or morales and pérez ricart (2014a, 2014b). likewise, the militarization processes that have taken place during the last two decades in mexico, latin america and other countries have opened new debates regarding the use of public force, the increase in institutional violence, and the violation of human rights. these discussions have focused in particular on the effects that military intervention has on police corporations, the judicial militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 28 system, the penitentiary system, and other civil institutions (kraska, 2007; jobard, 2008; zaverucha, 2008; moloeznik, 2012; hathazy, 2016; pion-berlin, 2017; lawson, 2018, 2019). at the current state of these debates, there is no agreed upon definition of militarization, but it is possible to identify several complementary analytical proposals. the first of these, formulated by hall and coyne (2013), can serve as a starting point since it introduces a distinction between direct and indirect militarization: while the first occurs when the armed forces are deployed for the purpose of controlling the internal order, blurring the line that separates police and military functions, the second refers to the adoption by police corps of characteristics from the armed forces, with the incorporation of military strategies, equipment and weapons, that is, when “police begin to proactively seek criminals” (hall; coyne, 2013, p. 487). the main virtue of the indirect militarization approach is to understand the problem in a heterogeneous and complex way, by expanding it beyond the strict military sphere. the civic-military division becomes more complex when considering the participation of civil and political agents, together with the military, within the processes of militarization. morales and pérez ricart (2014b, p. 12) return to this approach for the mexican case, but with criticism, because “the analytical separation between direct and indirect forms does not explain whether or how the latter are related to the former. it also fails to explain the consequences of the phenomenon on the military institutions themselves.” therefore, both researchers understand militarization as the result of a dual, interdependent process in which, on the one hand, military institutions become central in the definition of security policies, acquiring a hegemonic position in relation to the structuring of state violence, and, on the other, in which civil institutions adopt military logics for their operation. the dependent relationship established between civil and military institutions leads to isomorphic processes of mutual similarity. by establishing the armed forces as a hegemonic actor, this conceptualization underscores the asymmetric nature of the relations that unite the military and civilians in the field of security, in which the former tends to occupy privileged positions to the detriment of the latter. however—as kraska (2007) also warns—the asymmetry that characterizes these relationships is not one-way, so it is necessary to pay attention not only to the processes of militarization inside the police, but also, conversely, to the policing of the armed forces. following this line of argument, another proposal is advanced by hathazy (2016), who distinguishes four dimensions in militarization: 1) that of police jurisdiction, when it is delegated to the military, in away equivalent to the direct form of militarization; 2) the organic one, which distributes the police functions between civil and military organisms; 3) the institutional one, when the civil organisms adopt operating logics typical of the armed forces as an indirect form of militarization; and, 4) the discursive one, with the production of official war rhetoric. these four dimensions operate interdependently. through them, hathazy seeks to point out the importance of the interests at stake in the field of security, whose stakeholders (political, bureaucratic and economic agents) fight over the definition of a legitimate policy, with its corresponding strategies and budgets. thus, this analytical approach allows for a dynamic understanding of how, in historical moments, security pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 29 institutions manifest “objective relationships based on their size, resources, and prestige” (hathazy, 2016, p. 186). on the other hand, the definitions of kraska (2007) and lawson (2019) are useful in emphasizing the use of force. according to the former, militarization is understood as an extension of militarism, that is, as a tendency to privilege the force or threat of violence as the most effective means of solving social problems. in other words, militarization is the application of the elements that make up the military model to a particular organization or situation (kraska, 2007). in this way, police militarization represents the process by which the police adopt the material, cultural, organizational and operational principles of military institutions. finally, lawson (2019) adds that, as a result of militarization, police officers tend to think that exercising force is the most effective means of resolving social conflicts. consequently, militarized police forces not only tend to perceive protection and prevention functions as secondary, given the priority task of fighting crime, but to prefer the use of force, which translates into a propensity for violence. based on some elements expressed in these three proposals, we understand militarization as the general process of reconfiguring state power through the delegation of the use of its force in favor of military institutions, whose role thus occupies a central position in the field of security, and whose operating logics are adopted by civil institutions, in particular by police and judicial institutions. in this way, exchanges between the military and civil security organisms are characterized by a growing asymmetry. in the struggle between both sectors for control over public security functions, militarization expresses the domination of the former over the latter. the following processes are part of its main dimensions—policy, legal and organizational (table 1): table 1. dimensions and processes of militarization dimension processes policy involvement of the armed forces in internal security submission of civil institutions to the military military control over key budget positions implementation of unified commands, joint operations and other spaces for civil-military coordination production of an official war discourse legal adoption of a legislation and jurisprudence that justify military interventionism consolidation of the military jurisdiction and its autonomy over civil justice organizational transfer of military personnel and technology to civil institutions appointment of military personnel (active or retired) to command and highlevel positions inside civil institutions imposition of military logics in the institutional operation of civil organisms and application of military doctrine to the police forces source: elaborated by the authors militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 30 finally, considering the different analytical proposals outlined, the problem of militarization requires a multidimensional theoretical treatment that makes it possible to account for the complexity involved in turning or returning the armed forces to perform public security tasks, its effects on other institutions, and its social impacts. to sum up, it is necessary adopting a relational and procedural perspective focused on showing the political, legal, organizational, and contextual processes that interact and are mobilized in the face of the military’s involvement in internal security. 3. militarization of public security in mexico over the past decades, the armed forces have become a central actor in security policies in mexico. it is difficult to ignore the speed at which military prerogatives were expanded, which forces us not only to reflect on its effects, but also on the factors that favored its deployment. the reformulation of the armed forces responsibilities occurred in a context marked by the growth of crime rates, the perception of insecurity, and the emergence of debates around the need to implement police and military reforms (dammert, 2005; bailey and dammert, 2006; dammert and bailey, 2015), in which security became a central issue on the political agenda throughout latin america (fondevila and navarrete, 2013). today, there is a consensus in the academic literature regarding the implementation of a security policy under a militaristic paradigm in mexico. the discussions suggest that this scheme is associated with the increase in violence and human rights violations, as a general situation that poses serious challenges for democratic governance (bagley, 1992; lópez-menéndez, 2000; artz, 2003; barrón, 2003; moloeznik, 2007; camp, 2010; piñeyro, 2010; alvarado and zaverucha, 2010; moloeznik and suárez de garay, 2012; sotomayor, 2013; silva and padilla, 2019). moreover, it is necessary to remember that the militarization of public security in mexico is not the result of spontaneous generation. on the contrary, there is a series of antecedents in the 20th century. the first of these is the early participation of the army in the fight against drugs, through the eradication of illicit crops, which dates to the late 1930s in the north of the country (astorga, 2007, p. 57). the second refers to the counterinsurgency campaigns carried out in the 1960s and 1970s, in the context of the so-called dirty war (herrera and cedillo, 2012), and which were updated two decades later in the face of the zapatista uprising (sierra guzmán, 2007). in this sense, from the 1990s onwards, the (re) militarization of public security refers to an evolution in the army’s trajectory in which “it assumed a new role and began a process of organizational, technical, and budgetary renewal, as well as in equipment and internal security planning” (alvarado and zaverucha, 2010, p. 254). indeed, as a result of the zapatista uprising in chiapas, the militarization of public security became state policy under the auspices of the united states’ foreign policy, after signing the north american free trade agreement. thus, “the reasons for this shift seem to have responded more to an alignment with the american-inspired vision than to selfconviction” (astorga, 2007, p. 30). in general terms, mexican military institutions went through internal reorganization processes based on the model and with the direct support of the us army. military budgets were increased, while contingents grew both in number pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 31 and quality, through the multiplication of special forces corps and the concomitant purchase of new armaments. likewise, the geographical distribution of the army in the national territory was reviewed to concentrate its forces. two big moments of institutional and political changes have been significant in this evolution. the first turning point was the creation in 1995 of the national public security system, an “organizational hybrid”—an expression by alvarado and zaverucha (2010)—that integrates the secretariat of national defense (sedena) and the secretariat of the navy (semar) within it, together with civil organisms. this integration allowed for the incorporation of the military in key instances for the design of security policy, such as the national council for public security and the attorney general’s office (pgr). this incorporation was supported the following year by a controversial supreme court ruling.3 at the same time, a substitution policy was initiated to replace police officers with military personnel at medium and high command levels, both in instances of public security and justice—including preventive and judicial police tasks—covering 29 of the country’s 32 states (lópez-ménendez, 2000). it was also during ernesto zedillo’s presidency that the mixed operations bases (bom) were created between the army and police corps. finally, in 1999, the federal police was born, by integrating troops from the military police, as a new corporation that is part of a vast project of unified police command. the second critical moment occurred during felipe calderón’s government (20062012), with an official discourse based, on the one hand, on the narrative of a dispute for territorial control between organized crime groups (the so-called “cartels”) and, on the other hand, on a position that sought to highlight the weaknesses of civil security institutions and their inability to maintain internal order. linked to military semantics, this official discourse involved not only dealing with crime, but also recovering those territories supposedly usurped by the “enemy” (astorga, 2015). in this way, the militaristic paradigm was deepened even further after signing the mérida initiative. it was repeated that there was no other alternative than to deploy the armed forces, presented as the only institution with enough professionalism, discipline, and technical capacity to contain criminal violence. this “militaristic explanation” (piñeyro, 2010) was based on two key assumptions: the armed forces’ lower corruption levels and greater effectiveness against crime compared to police and judicial institutions.4 3 in the ruling about unconstitutionality action 1/96, the supreme court affirmed, in a highly contradictory way, that “the functions that have an exact connection with military discipline, referred to in article 129 of the constitution, go beyond the internal tasks in military life [...] within which it is found to assist civil authorities with the use of force at their disposal in tasks related directly or indirectly to public security” (scjn, 1996, p. 214). this interpretation does not cease to constitute a flagrant violation of the article invoked. 4 this argument needs to be problematized in at least two dimensions. in the first instance, it is undeniable that a significant proportion of state and local police institutions were unable to carry out their tasks, as a result of a lack of budget and professionalization, which is partly explained by the disputes over “material and symbolic rewards” (hathazy, 2016, p. 82) between civil and military institutions, but also because of the depth of corruption that unites police and criminals in mexico. rather than a capture of the police by criminal interests, this situation responds to a more complex and profound logic of cooperation, in which the border between law and crime is blurred, such as have evidenced the recent cases of edgar veytia and genera garcía luna. in this context, it was implausible to delegate the task of containing crime to local militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 32 as a field in dispute, the new government’s security policy revealed the bureaucratic and organizational distinction capacity of the armed forces, at least in terms of the assigned budget and the institutional autonomy for its exercise. public spending on security showed a vertiginous increase, destined for two organisms in particular: the secretariat of public security (ssp), whose budget quadrupled between 2006 and 2012— from about 9,300 million pesos to more than 40,000—and the army (sedena), which doubled its spending—from around 26,000 million to over 55,000 (figure 1). this budget increase contrasts with the previous administration, led by vicente fox (2000-2006). on the one hand, it followed a period of financial stability in which military spending had been maintained, with a moderate average increase of 16% for the army in this period and just 3% for the navy. on the other hand, it is also distinguished from the previous period in that the fox government had strengthened the budgets of civil security institutions, with an increase of 71% for justice (pgr) and 46% for police (ssp) (table 2). this illustrates the militaristic turn of the calderón government. if we expand the comparison between the four state security secretariats (sedena, semar, ssp and pgr) and the two main secretariats beneficent in nature—education (sep) and health—we observe that—although the annual growth rates of their respective budgets are unequal—during these two governments, the most benefited secretariat was the police police, specifically because the police institutions themselves became criminogenic actors. however, the problem of corruption is shared by the armed forces, as other cases have shown, such as those of generals gutierrez rebollo and acosta chaparro, as well as the desertion of members of the special forces and their incorporation into criminal groups. in this sense, one consequence of militarization has been the increased exposure of the military to corruption and, therefore, the consolidation of its nexus with criminal interests. 0 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000 90,000 1,00,000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 army (sedena) navy (semar) justice (pgr) police (ssp) figure 1. evolution of public spending on security (2001-2020) (millions of pesos) source: federation expenses budget (cámara de diputados, 2001-2020) pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 33 (ssp), with an average annual growth of over 20% throughout the period (2001-2012) according to federation expenses budget (cámara de diputados, 2001-2020). with the drastic increase in spending on public security, the interests of militarization were sharpened. the occupation of key positions within the police and judicial organisms, at the different levels of government, became increasingly strategic. the best example of this situation is found in the attorney general’s office (pgr) (artz, 2003), at the head of which general rafael macedo de la concha was appointed in 2000. three years later, “there were around 200 military commissioners in the pgr. among them, 20 were coordinators or operational directors” (morales; pérez ricart, 2014b, p. 22). in 2007, several of the internal directorates became ruled by the air force, while the army took control of the assistant attorney general’s office for special investigations on organized table 2. annual budget by state secretariat (2001-2020) year army sedena navy semar justice pgr / fgr police ssp education sep health 2001 22,425 8,873 5,594 6,350 97,569 19,278 2002 22,705 8,518 6,933 7,320 110,377 21,996 2003 22,831 8,889 7,154 7,067 106,355 20,867 2004 23,629 8,506 7,371 6,720 109,588 21,422 2005 24,002 8,636 8,144 7,037 127,668 34,024 2006 26,032 9,164 9,551 9,274 137,590 42,356 six-year evolution 16% 3% 71% 46% 41% 120% 2007 32,201 10,951 9,217 13,665 151,963 55,583 2008 34,861 13,383 9,308 19,712 173,498 69,426 2009 43,623 16,059 12,310 32,917 200,931 85,036 2010 43,632 15,992 11,781 32,438 211,186 89,893 2011 50,039 18,270 11,998 35,519 230,685 105,314 2012 55,611 19,680 14,905 40,537 251,765 113,480 six-year evolution 73% 80% 62% 197% 66% 104% 2013 60,811 21,865 15,761 41,217 260,277 121,857 2014 65,237 24,603 17,288 32,250 292,549 130,265 2015 71,274 27,026 17,029 37,174 305,057 134,848 2016 72,251 27,401 16,469 36,570 302,987 132,217 2017 69,408 26,337 15,897 31,798 267,655 121,818 2018 81,022 31,307 16,244 36,371 280,969 122,557 six-year evolution 33% 43% 3% -12% 8% 0.6% 2019 93,670 32,083 15,351 33,067 308,000 124,267 2020 94,029 33,558 16,572 60,151 326,282 128,826 source: federation expenses budget (cámara de diputados, 2001-2020) militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 34 crime (siedo). the military “assault” on the office is of such magnitude “that it will give the well-founded impression of a subordination of the pgr to sedena, and not a mere adjunct of the second to the first, as it had been legally established since 1947” (astorga, 2007, p. 38). numerous active and retired military personnel were appointed to high-level positions throughout those years. as alvarado and zaverucha (2010, p. 247) show, “this presence has been increasing particularly in command and operational positions, at the head of the police forces in several important municipalities, as well as in some directorates or regional security secretariats.” as a result of this process of militarization, according to calculations by moloeznik and suárez (2012, p. 134), in 2012, 14 of the 32 mexican states had a public security secretary with a military background. finally, as another example, a unique command system was created at the national level in 2010 which ultimately subordinated police corporations to military command. 4. violence and violation of human rights the capture of civil security institutions by military interests lead to the imposition of war logics in their operation. on the one hand, police corps took an increasingly subordinate position to the army, through devices such as the bom, which presented an average of 62 annual operations between 2006 and 2012 (morales and pérez ricart, 2014b, p. 26), through the installation of 180 bases in 26 states up to 2017 (sedena, 2017). on the other, the combined interventions between the armed forces and police corporations were multiplied in various states of the country to which troop convoys arrived. these were the so-called “joint operations” (operativos conjuntos), in which the army, the navy, the federal police and the pgr participated under military command. their implementation ran from 2006 to 2014, that is, through three different federal administrations, for a total of 15 operations deployed throughout the national territory (atuesta, 2018). as a series of investigations has shown (escalante, 2011; merino, 2011; morales, 2012; atuesta, 2018), these operations contributed decisively to the increase in violence in the states where they were carried out. indeed, although crime-related violence showed an increase in different regions prior to intervention—as vilalta (2014) suggests—the deployment of the armed forces significantly modified the dynamics of violence. thus, a systematic correlation is observed, at a statistical level, between the implementation of joint operations and the positive evolution of the homicide rate, in the times and spaces of these operations. the evidence provided by these investigations shows the link between militarization and violence, and it stands in contrast to a dominant vision that usually imputes the cause of the increase in violence to the sole criminal action. in this sense, military intervention in public security tasks poses a significant social and institutional challenge for human rights, considering that the armed forces are socialized for the maximum use of force. their preparation for war admits a clear separation between the military and civilians, where the latter are in an evident disadvantage that makes it difficult “to achieve the balance between force protection and target protection” (pion-berlin, 2017, p. 3). under this premise, military intervention in both the anti-drug pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 35 fight and police tasks can only be associated with an increase in the levels of arbitrariness and human rights violations. in mexico, the two critical junctures that represent the dirty war in the seventies and the zapatista uprising in the nineties, were warnings of this danger, with a record of numerous and serious human rights violations—as in the case of massacres, extrajudicial executions and enforced disappearances (femospp, 2006; comverdad, 2014). furthermore, several human rights reports had pointed out the negative effects of military interventionism on internal security (cidh, 1998; jahangir, 1999; cndh, 2001). a first indicator of this problem is found in the number of complaints to the national human rights commission (cndh). indeed, this indicator has experienced sustained and continuous growth from 2006 onwards, throughout the calderón government, as a sign of the improper performance of the military, police and judicial institutions, in a direct relationship with joint operations. from 2006 to 2011, the annual number of complaints multiplied, going from 24 to 418 against the navy, from 146 to 775 against the federal police, from 515 to 769 against the attorney general’s office (pgr), and from 182 to 1,695 against the army, that is to say, from 867 to 3,734 complaints in total, for a growth rate of 430% in the period (figure 2). the institution indicated as responsible for violations of human rights in greater proportion is, by far, the army, with an annual number of complaints that has almost multiplied by 10, drawing the peak observed in the graph. in this sense, while the pgr showed conflictive behavior prior to this period—its levels have remained relatively stable before and after the calderón government—the judicial institution differs from its military and police peers, who experienced a significant increase in complaints in the scenario of militarization built by the “war on drugs.” 0 200 400 600 800 1000 1200 1400 1600 1800 2000 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 army (sedena) navy (semar) federal police justice (pgr) figure 2. complaints to the national human rights commission for human rights violations (2000-2019) source: national human rights commission (cndh, 2000-2019) militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 36 although complaints decreased during the peña nieto government (2012-2018), the levels at which they tended to stabilize from 2014 continued to be higher than the numbers registered before the joint operations. this is the case for complaints made to the navy, whose level remains stable and high. in the case of the federal police, the decrease in complaints against the corporation is late, occurring only since 2017. however, the quantitative decrease in the number of complaints does not necessarily express a qualitative reduction in human rights violations. this difference is due to several reasons, but mainly to the gap between the official statistics and the diverse and complex reality of concrete situations. as anaya (2015, p. 59) warns, “it is very difficult for certain acts (such as extrajudicial execution, torture or enforced disappearance) to have administrative records that reliably demonstrate all the cases of violations that have occurred.” furthermore, the aggregation resulting from the sum of events cannot account for their nature, nor for their evolution in qualitative terms, that is, the type of violations committed and how they occur specifically. it fails even more to explain institutional changes linked to militarization, to determine how the relationship of corporations -armed forces and policewith the use of violence has evolved, or what perception their agents have built about human rights for the performance of their functions. to fill this void, some recent research works have disaggregated the data and focused their attention on a single type of human rights violation, such as torture (magaloni, magaloni and razu, 2018; silva and padilla, 2019, 2020). this has also been the case of lethality in the use of public force, which we will review below, due to the suggestive results that have been produced by studies on this subject. regarding to topic, it is necessary to point out that in the last decade, there has been an important debate about the need to define mechanisms and protocols that allow regulating the use of force, considering that the deployment of the armed forces in public security tasks began in a context of total omission about the implementation of controls aimed at preventing the occurrence of cases of police and military abuse. as a late response, not only to the increase in the number of cases of serious human rights violations, but also to the constitutional reform of 2011—that established a new juridical paradigm and the mandate for state agents to minimize any risk that endangers to human rights in the performance of their functions—,5 in 2012, a directive that regulates the legitimate use of force by armed forces personnel was published, and later, in 2014, a manual of the use of force of common application to the three federal forces. however, both this directive and said manual have shown to have minimal effects on police and military operations. 5. lethality in the use of public force the general growth in the number of complaints for human rights violations is due, in large part, to the increasing violence that goes along with the militarization of public 5 one of the most relevant issues of the constitutional reform was the binding nature of the jurisprudence of the inter-american court of human rights (iachr) and other international treaties, which forced the mexican state to adopt and adapt the national regulatory framework to comply with the basic principles on the use of force and firearms by officials in charge of enforcing the law of the united nations, as well as the jurisprudence on the use of force derived from the judgments of the court. pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 37 security, particularly visible in the alleged combats in which state forces are involved. indeed, the number of these confrontations with supposed criminal groups has grown dramatically since 2010, on par with the number of troops deployed. thus, while the number of mobilized army troops in internal security tasks did not stop increasing between 2008 and 2011—from 45100 to 52700—the number of alleged combats involving the military grew exponentially, from 106 to more than 1000 in the same period (figure 3). in relation to these alleged combats with criminal groups, a recent investigation (madrazo, calzada and romero, 2018), supported by a solid database, shows that, of all the combats registered between 2007 and 2011 at the national level, only 7% have been caused by civilians—suspected criminals—while the vast majority (84%) have been triggered by state forces, be they military or police. furthermore, of all these combats, only 5% have occurred as the result of a court order or in the framework of a judicial investigation, while 75% of the armed clashes are due to the mere physical presence of state forces, during patrols (38%) or other operations without explicit objectives (8%), outside their facilities (25%), in an apparently fortuitous and unforeseen manner. on the other hand, activities with prior planning, such as the installation of checkpoints (4%) or crop eradication (0.5%), present residual percentages as activities that trigger combats. in sum, these numbers illustrate that the main risk factor is not criminal—as might be expected—but institutional, insofar as the cause of most combats is on the side of security forces. in other words, the increasing fighting obeys the warlike logic of militarization, which makes them proactively seek an enemy to fight. consequently, the lethality of military and police corporations increases at the rate of combats, expressing an excessive, illegal and systematic use of violence. this deadly force is shown by another investigation, based on press monitoring, (silva, pérez correa and gutiérrez, 2012, 2017). as with the previous research, the results are suggestive. 2008 2009 2010 2011 2012 mobilized troops in internal security 45100 48700 49700 52700 49700 combats involving federal police 47 50 122 119 143 combats involving the army 106 207 621 1009 814 44000 46000 48000 50000 52000 54000 0 200 400 600 800 1000 1200 n um be r o f m ob ili ze d tro op s n um be r o f a lle ge d co m ba ts figure 3. mobilized military troops in internal security and alleged combats with army and federal police personnel (2008-2012) sources (silva, pérez correa and gutiérrez, 2017, p. 339-340; benítez and aguayo, 2017, p. 271) militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 38 indeed, as a result of these alleged combats, there are more civilians killed than wounded, and more wounded than detained, unlike a normal situation in which the relationship is exactly the opposite. “even the medical literature, when analyzing the use of conventional weapons in armed conflicts, inverts the index to report wounded over dead, as the former are more common than the latter in contexts of war [...] the index is instead reversed when it deals with war crimes or shootings against civilians” (silva, pérez correa and gutiérrez, 2017, pp. 343-344). thus, in a militarized mexico, for each military or policeman killed in combat, the ratio of wounded and killed civilians is increasingly large. likewise, while the number of injuries is greater than the number of deaths among state forces—this result being what is normally expected—there is an opposite trend among civilians, with a number of deaths that is always much greater than the number of wounded. it is this difference that we understand as the lethality index. from 2010 onwards, with the deepening of the war scheme, the lethality of state forces increased dramatically, in such a way that, in the following two years, the federal table 3. lethality of state forces in alleged combats (2008-2014) year 2008 2009 2010 2011 2012 2013 2014 total army sedena dead civilians 44 95 327 526 370 225 168 1755 wounded civilians 13 24 40 27 23 19 23 169 lethality rate 3.4 4 8.2 19.5 16 11.8 7.3 10 federal police dead civilians 44 74 35 92 162 65 51 523 wounded civilians 19 17 9 3 13 16 2 79 lethality rate 2.3 4.4 4 30.7 12.5 4 25.5 6.6 navy semar dead civilians 24 50 103 36 33 74 320 wounded civilians 6 2 7 1 2 1 19 lethality rate 4 25 15 36 17 74 17 source (silva, pérez correa and gutiérrez, 2017, p. 344) no civilians killed or wounded with civilians dead and wounded only with dead civilians killed by military only with dead civilians killed by police figure 4. perfect lethality of state forces in alleged combats (2007-2011) source (madrazo, calzada and romero, 2018, p. 395) pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 39 police, the army, and the navy systematically showed rates higher than 10 points—that is, greater than 10 deaths for each wounded—with peaks at 19.5 for the army and 30.7 for the federal police in 2011, and another at 36 for the navy in 2012 (table 3). in comparative terms, it is the navy that exhibits the highest lethality rates, with an average of 17 points in the 2008-2014 period, above the army (10) and the federal police (6.6). likewise, the combats in which the military or marines intervene are deadlier than those where only the police participate. in this sense, “the inclusion of the army in security tasks, in violent environments, seems to bring with it an inevitable use of force under a logic of war, and it is possible that another outcome is unlikely based on the characteristics of military formation” (silva, pérez correa and gutiérrez, 2012, p. 63). in addition, if we observe the perfect lethality of state forces—that is, the events in which the dead are exclusively civilians and where there is not even a single wounded, be it a civilian or an official—the proportion of these events is considerable. perfect lethality cases account for 39% of all the alleged combats between 2007 and 2011, of which 27% involve the military and 12% the police (figure 4). additionally, these events are the ones that contribute the most registered civilian deaths, representing 90% of the combats with military intervention and 77% with police participation in the same period (madrazo, calzada and romero, 2018, p. 395). in other words, in more than a third of the alleged combats with criminal groups, as well as in the vast majority of cases with civilian deaths, this perfect lethality suggests that, rather than fighting between officials and criminals, in reality, it is probably about extrajudicial or arbitrary executions.6 it is what both investigations on lethality in the use of public force imply. in mexico, we would find ourselves not only facing a deterioration of human rights due to an aggravation of its violations, but also before state crimes, whose logic obeys the warlike scheme that sustains the processes of militarization. when public security is intervened by military interests, crime prevention becomes a prosecution of criminals. fighting crime leads to a war against the “enemy.” as a result of this conversion, warlike logic condemns the alleged criminals to annihilation. this is what these lethality rates suggest. the united nations special rapporteur on extrajudicial, summary or arbitrary executions, christof heyns, visited mexico in 2014. in his final report, he referred to 31 cases of summary executions between 2007 and 2012 at the hands of the armed forces and the police (heyns, 2014, p. 5). a few months after this visit, the events of tlatlaya and iguala occurred—in the latter case, with the disappearance of the 43 students from ayotzinapa. in 2015, the events of apatzingán, tanhuato and ostula in michoacán followed, and in 2016, those of nochixtlán in oaxaca. all these cases stand out for the 6 the minnesota protocol on the investigation of potentially unlawful death (un, 2016) considers that extrajudicial, summary or arbitrary executions occur when “the death may have been caused by acts or omissions of the state, its organs or agents, or may otherwise be attributable to the state.” in these cases, all the executions possibly carried out by state agents are contemplated, but also by private security agents in the exercise of state functions, by paramilitary groups or militias under the direction of the state, and also when death occurs while the victim was detained or in the custody of state agents. militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 40 excessive use of force and its lethality. based on this report, and on the national human rights commission’s recommendations on these different cases, between 2006 and 2020 we have been able to count at least 81 cases of extrajudicial executions in the country. however, due to the absence of statistics, this number only represents an approximation that is probably lower than the real figures. it should also be noted that 60% of the identified cases are concentrated between 2008 and 2012, during calderón’s government, and that the army has been the responsible institution in almost half of all cases (46%), followed by the federal police (20%) and the municipal police (10%) (figure 5). moreover, in the same way as in the case of complaints filed for human rights violations, lethality rates cannot account for specific problems. if they indicate general guidelines on the behavior of security institutions, they cannot explain how the commission of extrajudicial executions is made possible. in this sense, it is necessary to accompany the quantitative investigations with qualitative works, based on case studies, that allow us to understand, beyond the general logic of militarization, the conditions and circumstances that make these cases possible. it is for this reason that we will deal with the issue through a case study based on an event that, in recent years, has become one of the most emblematic in the matter: the tlatlaya case. 6. extrajudicial executions: the tlatlaya case on june 30, 2014, various media reported—as had been recurring since 2007—a clash between a military patrol (assigned to the 102nd infantry battalion) and a group of alleged criminals in san pedro limón, in the municipality of tlatlaya, state of mexico. on the night of this day, the army communicated—via twitter—the following message: “today, military personnel conducting reconnaissance in tlatlaya, state of mexico, located a warehouse guarded by four civilians. these persons opened fire on the troops, who repelled the attack resulting in 22 dead attackers. at the site, 38 weapons and ammunition were seized, and three women were released, who were placed at the disposal of the corresponding authority. in these events, a military element was wounded.” however, a few days later, on july 8, an associated press reporter, mark stevenson (2014), released a note questioning this official version. in his article, the foreign journalist 8.6 7.4 6.2 19.8 2.5 9.9 45.7 joint navy state police federal police judicial police municipal police army figure 5. corporations responsible for extrajudicial executions (2006-2020) sources: national human rights commission (cndh, 2006-2020) pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 41 explains how his on-site visit, three days after the events, allowed him to observe “little evidence of sustained fighting.” instead, he found several clues whose concentration— particularly blood stains and bullet holes in a wall—seemed to coincide rather with possible executions, in which the victims would have been lined up against the wall and shot at chest height. due to this article, as well as a growing international demand for the clarification of the facts—from insight crime and human rights watch particularly— the local attorney general’s office (citado en senado de la república, 2015) issued a statement saying the following: “there were no shots fired at close range; cross fire was proportional; according to the trajectory of projectiles and the position in which the bodies were found, [there is] no indication of a possible execution.” on september 17, a new press article was published (ferri, 2014), containing the key testimony of one of the three “liberated” women, who was allegedly kidnapped. identifying herself as the mother of one of the victims, a 15-year-old girl, she stated that it was the military who started shooting, that only one of the victims died in the crossfire, and that all the other people soon surrendered. after submitting, the victims were interrogated, tortured, and executed by the soldiers: “then [the military] asked for their names and wounded them; at first they did not kill them. i said ‘no, don’t do it,’ but they said that ‘those dogs don’t deserve to live’ […] then they lined them up and killed them” (ferri, 2014). the interviewee also related how her daughter was wounded in the leg by one of the militaries and, when she tried to help her, the soldiers held her and killed her daughter, who was immobilized on the floor, shooting her in the chest. later, the military “put on gloves and turned her upside down” (ferri, 2014). in this way, the testimony not only reinforced the hypothesis formulated by stevenson, but also accounted for a possible modification of the scene to cover up executions and to fake combat. on september 19, two days after the publication of this testimony, the army issued another statement (sedena, 2014), now offering “its unrestricted collaboration with the competent authority to clarify the facts and determine the legal truth about this event.” as another consequence of this testimony, the national human rights commission (cndh) opened an investigation into the case, even if it was late. on the 24th, the president of the commission, raúl plascencia villanueva, was still defending the official version of a simple confrontation (rivera, 2014). however, on the 26th—a few hours before the events of iguala—anticipating the possible unfavorable result of said investigation, the secretary of the interior, miguel ángel osorio chong, affirmed that, if the suspicions were confirmed, it would only be “an isolated action,” not representative of military action. in its 51 recommendation of october 21, the cndh (2014) presented the main results of its investigation. the victims included three minors, as well as eleven young people aged between 18 and 23, most of them belonging to rural communities. the events occurred at least one hour before what the army indicated. of the 38 weapons seized, only 11 were fired and 8 directly related to a victim, that is, while a minority shot against the military, the majority tried to take refuge or flee the fire. likewise, the 22 dead victims presented wounds resulting from a single shot, with a perpetrator systematically positioned in front of his victim. in this way, the cndh assured that only four of the victims died in militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 42 the confrontation, and three more in the crossfire, while the remaining 15 were arbitrarily executed. thus, the cndh rejected the version of the local attorney general’s office on an alleged combat for not having “sufficient elements to reach this conclusion, which is also erroneous considering that, in various conclusions, it is exposed that some bodies have instinctive defensive positions” (cndh, 2014, p. 82). on the other hand, the cndh managed to prove the alteration of the crime scene by the military, with the help of other troops who came after the massacre, “with the intention, most likely, to simulate that deaths had occurred in a context of combat […] the bodies were moved from their original location and repositioned. in addition, phones were stolen from the scene” (cndh, 2014, p. 27). in sum—despite various limitations—the commission’s investigation confirmed the information contained in the two previous press articles, recognizing both the reality of extrajudicial executions and official attempts to cover them up. even considering it as a particular case, the facts that occurred in tlatlaya do not represent an isolated event but are part of a series of aforementioned cases in which the military and police corporations committed serious violations of human rights. in this sense, beyond its uniqueness, the tlatlaya case is even more relevant for three fundamental reasons: 1) because the participation of the armed forces in extrajudicial executions was officially accredited; 2) because it is the first case of human rights violation committed by the military that could be investigated by civil justice, due to a reform to the code of military justice—also in 2014—and, 3) because it is the only case of summary executions that has been sentenced to date. in addition, the tlatlaya case allows for testing the civil control mechanisms over the armed forces, showing the obstacles that the extension of military jurisdiction represents, both for the clarification of the facts, and for justice for the victims. in relation to this last point, it should be remembered that the mexican armed forces have historically benefited from a set of prerogatives that have assured them important institutional autonomy. the lack of civil controls on their activities, in turn, has favored the construction of an action framework characterized by opacity, secrecy, and impunity. according to stepan and wolfson (1988, p. 93), these prerogatives refer to those spaces in which the “military have the acquired right or privilege, formal or informal, to exercise effective control over their internal management procedures, to perform a role in extra-military areas of the state apparatus, or even to structure relations between the state and political or civil society.” both authors identify, as an indicator of “high” military prerogatives, the prevalence of military jurisdiction over civil justice, that is, the impossibility or low probability that military elements will be submitted to civil courts in case of human rights violations. in mexico, constitutional and historical antecedents of military jurisdiction refer to different moments in which it was restricted to crimes and offenses that had a strict connection with military discipline—following the constitutional formula—granting civil justice in those cases in which the parties involved were military and civilians. however, due to the absence of precise legal pronouncements regarding the restriction of military pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 43 jurisdiction over cases in which civilians constitute a passive object, as well as the high degree of autonomy and secrecy that characterize the armed forces, civil authorities have declined their jurisdiction in favor of the military (cossío, 2010). in this way, both the investigation of human rights violations and the sanction of responsible agents have been made impossible, as occurred in the cases of radilla pacheco (1974), cabrera garcía and montiel flores (1999), rosendo cantú (2002), rubio villegas (2009), mercado and arredondo verdugo (2010), among the main examples. in the case of the radilla pacheco v. mexico ruling (2009), the inter-american court of human rights ordered the mexican state to enhance the necessary legislative adjustments to article 57 of the code of military justice in order to homogenize the regulation of military jurisdiction with international standards. as a result, in 2014 the article was amended, specifying that crimes in which the military and civilians concur will be the competence of civil authority. this is how the tlatlaya case could be one of the first cases of human rights violations to be investigated after this reform. however, six years after its implementation, and in light of the unfinished aftermath of the case, it is possible to identify important gaps in the 2014 reform that hinder the judicial investigation, table 4. chronology of judicial actions in the tlatlaya case 02/09/14 the army reported that the eight elements involved—seven soldiers and a lieutenant—were presented to the sixth military court and interned in the prison attached to the first military region. their release on bail was denied after knowing the start of an investigation by the attorney general’s office. 07/11/14 the federal judicial council announced the consignment of the military before the fourth district court of federal criminal proceedings, in the state of mexico, for the following charges: improper exercise of public service, abuse of authority, aggravated qualified homicide, illegal alteration of crime scene and cover-up. 31/03/16 the military attorney general’s office acquitted the seven soldiers of offense for breach of duty. four soldiers were exonerated in the case, while the lieutenant— the only officer involved—was sentenced to one year in prison for disobedience, but not for homicide. 13/05/16 a judicial resolution (toca penal 247/2015) dismissed the evidence provided by the federal public ministry to demonstrate culpability, indicating that the evidence was insufficient to prosecute the military considered responsible. 25/05/18 the fourteenth district court of amparo in criminal matters, in mexico city, ordered the attorney general’s office to carry out an investigation on the case, emphasizing the chain of command, as well as a military order that instructed the troops “to operate at night in a massive way in order to kill criminals in hours of darkness.” 20/02/19 the second chamber of the supreme court resolved the 998/2018 “amparo,” in which the principle of maximum publicity was analyzed in relation to information on serious human rights violations, resolving the possibility of reproducing the information contained in files in which these types of violations were investigated. 17/10/19 the sixth unitary court of the state of mexico resolved that the military must be prosecuted for an improper exercise of public service. it was noted that three of the soldiers involved have open investigations for the crime of qualified homicide. source: elaborated by the authors militarization of public security and violation of human rights in mexico (2000-2020) the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 44 perpetuate the situation of impunity, and highlight the shortcomings of civil controls over military institutions. regarding the judicial process itself, it is worth noting that so far, several actions have been issued in the tlatlaya case. moreover, even in contravention of the 2014 reform, military jurisdiction has carried out an important role of interference in the process. this is what the centro prodh (2015)—a human rights ngo which has assumed the legal representation of one of the victims—has pointed out. both the military public ministry and the military attorney general’s office have carried out proceedings that do not strictly correspond to the investigation of crimes related to military discipline. as a result, simultaneous judicial processes were opened with possible contradictory conclusions, as shown in the following chronology (table 4). within this process, among other actions, the army’s decision to transfer the agents involved to central facilities stands out, because their transportation was operated in order to avoid their release, once a criminal investigation by the civil authority was known to have begun. the presentation of the military before a civil court was made impossible. hence, the tlatlaya case indicates the need to deepen reforms to military jurisdiction. in particular, it shows the need to prevent the military authorities from conducting investigations before, or at the same time as, civil courts, and to limit the functions of the military public ministry, related to the chain of custody and the preservation of crime scenes. indeed, as has been recorded in several cases, there is evidence of scene alteration as a recurring practice, in relation to events in which abuses were committed by the military. in more general terms, tlatlaya illustrates a trend with cases of serious human rights violations in mexico, in which the institutions involved systematically deny their responsibility, the implicated agents are protected, the seriousness of the facts is minimized, and the victims are not recognized, constituting causes of impunity with the intention of justifying the crime (zaffaroni, 2006). in this way, the tlatlaya case allows us to understand not only the gravity of the human rights crisis in mexico today, but also the role played by militarization of public security and, therefore, the magnitude of problems and challenges that this militaristic scheme implies. 7. conclusion in recent years, democratic expectations have obviated the need to reform military institutions, strengthen civil controls and limit military actions in public security tasks. however, considering that militarization constitutes an extremely complex process with significant effects on police structures, the discussion cannot only be limited to strict surveillance of the armed forces, but also of civil institutions. as suggested by the interamerican court of human rights—in the 2018 ruling on the case of women victims of sexual torture in the atenco case—, a possible alternative lies in the creation of external observatories to monitor the use of force, as well as monitoring systems for police and military operations before, during and after the use of force. as the article has shown, the consequences of this omission have been clear and critical, particularly for human rights. in principle, the militarization of public security is antithetical to the possibilities of building a democratic society. on the one hand, it violates human rights—to such an extent pierre gaussens and carolina jasso gonzález the age of human rights journal, 15 (december 2020) pp. 26-50 issn: 2340-9592 doi: 10.17561/tahrj.v15.5783 45 that mexico is currently in a deep crisis in the matter (anaya and frey, 2019)—while, on the other, it prevents their defense, hindering both accountability and civil control. based on the analysis of the literature and the available evidence, we consider that it can be argued consistently that a security strategy under a militaristic paradigm has not managed to have the expected effects in containing crime. on the contrary, it shows a tendency to exacerbate human rights violations as observed through numerous cases of lethality and arbitrary executions, even allowing the current context to be problematized in terms of a shift towards state crime as suggested by zaffaroni (2006), in view of the seriousness and excessive lethality that have occurred in cases such as tlatlaya. on the other hand, the analysis of the complaint files shows important variations within each of the federal security institutions, which leads us to think that the human rights violations that occur in the context of the militarization of public security present increasingly complex patterns of occurrence. although the data analyzed shows a downward trend at the end of this decade, considering the underreporting in the cndh files, it is not possible to conclude that the violation of human rights by the police and military is decreasing. rather, it is possible to think that the increasingly broad operational powers and prerogatives of the military institutions could bring in time moments of greater discretion and human rights violations, linked to the defects present in the national law on the use of force of 2019. current federal policies are aimed at deepening militarism. in the history of militarization that we sketch, it seems that today we are facing a third moment, marked by the adoption in 2017 of an internal security law by the peña nieto government, and the creation in 2018 of a national guard by lópez obrador government. this last new corporation is particularly illustrative in this regard, insofar as it gives the military broad prerogatives to participate in public security, which until now lack concrete counterweight mechanisms. in effect, legal uncertainty prevails about the new institution, in terms of investigation for crime prevention, covert operations, preservation of crime scenes, detention of persons and confiscation of property, which have been granted by the national guard law, but in an imprecise way in regard to its control mechanisms. on the other hand, military jurisdiction remains an important point of discussion. despite a reform to constitutional article 13, which establishes that crimes committed by national guard members in the exercise of their functions shall be known by civil authority, disciplinary offenses will continue to be prosecuted in the military jurisdiction. this situation can probably lead, as in the tlatlaya case, to the extension of the second over the first, with parallel judicial processes in the case of human rights violations. finally, the fact that militarization is maintained as the main security policy, despite the change of political regime that the 2018 general elections have supposedly represented, demonstrates the great strength that military interests have acquired within the mexican state. this third moment seems to be distinctive, not only because it allows for the legalization of militarization—beyond the controversial nature of the 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(2014) “how did things get so bad quickly? an assessment of the initial conditions of the war against organized crime in mexico.” european journal on criminal policy and research, 20(1), pp. 137-161. https://doi.org/10.1007/ s10610-013-9218-2. zafaroni, r. (2006) el crimen de estado como objeto de la criminología, méxico: iij-unam. zaverucha, j. (2008) “la militarización de la seguridad pública en brasil.” nueva sociedad, 123(1), pp. 128-146. https://doi.org/10.5211/iys.5.article8. received: july 22nd 2020 accepted: september 7th 2020 articles pierre gaussens and carolina jasso gonzález militarization of public security and violation of human rights in mexico (2000-2020) 1. introduction 2. about militarization 3. militarization of public security in mexico 4. violence and violation of human rights 5. lethality in the use of public force 6. extrajudicial executions: the tlatlaya case 7. conclusion references the age of human rights journal, 2 (june 2014) pp. 46-50 issn: 2340-9592 46 borders, violence, law javier de lucas 1 abstract: this article explores the relationship between violence, law and borders by analyzing both the violence at the borders and the violence of the borders. in both cases, the author states that violence exerted by means of law, as well as migratory and asylum policies, threaten the universal human rights of the most vulnerable people and cannot be seen as exercising the legitimate monopoly of force, resulting in the destruction of the rule of law. keywords: borders, violence, immigration, asylum, rule of law, human rights. the relationship between the notion of borders and law is a classic, a basic argument of the philosophy of law and political science. however, there is another relationship which remains unexplored, that which exists between violence, law and borders: violence at the borders, violence of the borders. how does law handle this? what role does it play before these both forms of violence? 1. let’s begin with the most obvious violence, the violence at the borders. the impact of the acts of violence in the border (for instance, lampedusa, melilla, ceuta) is undeniable: this is always the case when there is harm, when there is suffering. since violence means, above all, harm, to the extent in which violence seeks to impose or obtain something by the means of force 2 . still, unjustified or disproportionate harm is the evil that law cannot and must not accept. this idea is further reinforced if we accept the thesis sustained by certain law philosophers (such as ballesteros), who maintain that the core of the usefulness of law lays in its very condition of a barrier against 1 professor of philosophy of law, institut de drets humans, universitat de valència, spain (lucasfra@uv.es). 2 we must recall that the academic definition of violence refers to its origin, its latin etymology: violentĭa, comes from violo. <violence is the quality of violent or the action and effect of violare. violent, on the other hand, is that which is outside of its natural state, situation or mode; which is executed with force, vigour or brusqueness; or which is done against the taste or will of oneself>. violence, therefore, is a deliberate behaviour that can result in physical or psychological damage to a third party. since galtung, violence is differentiated into three categories, cultural, structural and direct violence. the most serious one, meaning the most dangerous one according to the norwegian philosopher, is the second one, that which consists in the dissatisfaction of basic necessities as a consequence of the structure of the political-economical system. javier de lucas the age of human rights journal, 2 (june 2014) pp. 46-50 issn: 2340-9592 47 violence and inequality: that is why law would –ideallybe “non-discrimination and non-violence”. moreover, the core of what it must forbid, according to the well-known reasoning of j.s.mill in his book on liberty, is precisely the harm to a third person. thus, the first reflection regarding <violence on the borders> is that many of those acts seem to coincide with what we consider to be a crime, to the extent to which they reveal disproportionate use of force, disproportionate menaces to life, to physical integrity, to freedom. we are referring to harm in basic necessities, in primary legal assets, in universal human rights: considering such harms, we can state that the borders today often entails a risk of death, if not death itself. and still, is law perhaps different from violence? isn’t it a form of institutional violence in itself? is this not precisely the sense of the weberian <monopoly of violence>, which entails the monopoly of law as an instrument of coercion and sanction? is not the link between law, power and fear, the means of fear as an instinctive political link (at least as much as the gregarious instinct, the flock instinct, the will to be a servant), and retraceable to the principle primus in orbe deos facit timor 3 , a constant in political theory, from greece up to present day 4 ? does not this conclusion require from us a realistic examination, as the one put forward by ross in his polemic with kelsen regarding the distinctive note of law, which would not regard its validity but rather its coercive efficiency? how can we refute such a reasoning of law as expressive violence, so evocatively portrayed by eastwood in the dialogue of unforgiven between the gunman/sheriff little bill dagget (gene hackmann) and the gunman english bob (richard harris), as the former delivers a terrible beating to the latter: <little bill daggett: i guess you think i'm kicking you, bob. but it ain't so. what i'm doing is talking, you hear? i'm talking to all those villains down there in kansas. i'm talking to all those villains in missouri. and all those villains down there in cheyenne. and what i'm saying is there ain't no whore's gold. and if there was, how they wouldn't want to come looking for it anyhow. english bob: a plague on you. a plague on the whole stinking lot of ya, without morals or laws. and all you whores got no laws. you got 3 the idea that fear created the gods, is a common place of the retores, and therefore, can be found in several authors and in different forms. often attributed to petronio, extract 22 (loeb classical library, harvard university press, vol.3, 661). however, others refer it to stacio, tebaida 3.661 or even to lucrecio, in the canto v of his de natura rerum. cfr. j-f rieux, “aux sources de la croyance. petite histoire d’une formule”. also, heuten, g., "primus in orbe deos fecit timor", latomus 1 (1937), 3-8. i owe this preciseness to my colleague mar marcos, professor of ancient history and religions at the universidad de cantabria. 4 a tradition which includes the names of euripides, trasimaco (república: justice is that which the strongest takes advantage of) calicles (gorgias, law, the natural law of the strongest), san agustin, hobbes and weber, ross and petrazisky: law is force, inexorable impositivity. borders, violence, law the age of human rights journal, 2 (june 2014) pp. 46-50 issn: 2340-9592 48 no honor. it's no wonder you all emigrated to america, because they wouldn't have you in england. you're a lot of savages, that's what you all are. a bunch of bloody savages. a plague on you. i'll be back.> in order to be able to justify this distinction, to distinguish the legitimate monopoly of the violence exerted by the one who has enough power to impose it, resourcing to the idea of justice is inevitable. furthermore, so that this latter does not become a formal resource, malleable in the hands of the powerful, it is necessary to refer the use of power to the notion of human rights, to the historical conciousness of that idea of justice. only the law which is understood as fight for the law, kampf um recht (ihering) which in turn resolves in fight for the rights, kampf um rechten, can aim to be a different instrument than that of the resource to violence, in other words, as suggested by ferrajoli, the law understood as the law of the weakest. yet not in the prenietzschean sense taught by calicles, as an ingenious, witty and resentful resource of the weak against the strong, the true natural master, but rather as the recognition of the other, as the struggle for the rights of the other and in particular a more vulnerable other 5 . in fact, the more vulnerable is the person who seeks asylum, the person who is deprived in his own country of the right to have rights, the very first right, the urrecht. this struggle for the first right compels to fight for those who cross borders seeking it, in order to obtain their recognition, the first legal protection, which is the very early institution of asylum as an institutional form of hospitality 6 . if the coactive force that is inherent to the right exerted in the borders does not respect these limits, it ceases to be the exertion of the legitimate monopoly of the force and becomes violence. we will soon return to this matter, which is probably the most obvious proof of the illegitimate drift of european migration and asylum policies. 2. nevertheless, beyond what it is strictly visible, the <violence at the borders>, resides the question of <the violence of the borders>, in other words, the question: are borders harmful and, thus, violence? furthermore, are they structural violence? borders nowadays imply, for many human beings, i insist, a serious risk of death or of serious damage to their physical integrity. they entail for many a restriction in their freedom of movement which appears as discriminatory and unacceptable. should we abolish them because they are harmful? or are they simply one of the many rules that enable freedom? 5 i am referring to the book of luigi ferrajoli, derechos y garantías. la ley del más débil, madrid, trotta 2005 (with an excellent foreword of perfecto andrés ibáñez). i believe that is the sense of the claim defended in the theory of recognition put forward by axel honneth, especially in his das recht der freiheit: grundriss einer demokratischen sittlichkeit, suhrkamp, berlin, 2011. 6 i devoted a book to the legal foundations of this initial right, puertas que se cierran. europa como fortaleza, icaria, barcelona, 1996 in which i proposed a philosophical and legal reflection on the closing of european borders that foreshadowed the narrowing of this urrecht that is asylum, based on the proposals of arendt and brecht. javier de lucas the age of human rights journal, 2 (june 2014) pp. 46-50 issn: 2340-9592 49 i am referring to <violence of the borders> to the extent in which the legality that currently establishes and defines the borders plainly is breaking the law, violating rights. since, regarding the case of the eu at present day, as a consequence of the process of renationalisation of migration and asylum policies, the borders are a <war instrument against immigrants and refugees>, as it has been reported for some time now by the ngo migreurop: a war in which the law is the basic tool, which means the destruction of the rule of law and of the very thing that gives sense to law itself, the fight for the rights. war is, in a sense, the denial of law itself, and that is why i believe it is justified to say that the drift of the eu’s migratory and asylum policies entail the resurgence of a legal and political tradition that develops the negative of law. indeed, this “war against the immigrants and refugees” finds its alibi (i refuse to use the term justification) in that perversion of the logic of law that is the principle of discrimination of the other, on which the legal architecture of his non-recognition is built upon, and which sums up in the denial of equality (the denial of the other in its recognition as a person), in the absence of a safety legal status. moreover, such conception is further reinforced by its functionality from an economic point of view, this is, to feed the business of labour exploitation; which on one hand reveals all its cruel ambiguity at both ends of the <bubble economy>’s policy of self-overexploitation, casino capitalism and closure policies (all of which, in themselves, promote in a different way the clandestine exploitation networks) and on the other, it reveals the extreme condition of precariousness –the epitome of the condition of “disposable”, of its “liquidity” attributed to immigrants. in a certain way, as it has been denounced, this use of immigrants highlights the link between the new form of slavery affecting immigrants (as workers) and the migratory policies (asylum policies as well). it is a well-known thesis. in the same way that we speak about institutional racism and xenophobia, the other side of the coin of racism and xenophobia, the migratory (and asylum) policies are the institutional framework that promotes the new forms of slavery affecting immigrants (and refugees). these policies are part of a conception that shows how the migratory movements are structural pieces of a system, rather than spontaneous, wild and incomprehensible waves: invasions. on the contrary, migrations integrate in an economic global system, which we refer to as globalisation process, governed by the neo-fundamentalist logic of global market capitalism, which promotes inequality and exploitation under the pretence of mobility and market freedom. the denial of freedom (refusing to recognise the other as a person), results in the absence of a safety legal status and in the collapse of the principles of legality and equality under the law, of the guarantee of equal freedom and thus the reduction of these subjects (infra-subjects, or rather non-subjects) to mere property. in other words, this is what it is actually being instrumentally used by means of that law of exception that is migratory law (more than it is immigration law), which, as warned by danielle lochak, opts for the “state of siege” instead of the rule of law, thus, turning into permanent what was in fact an exceptional, provisional and extra-ordinary situation as should be a “state of exception”. borders, violence, law the age of human rights journal, 2 (june 2014) pp. 46-50 issn: 2340-9592 50 indeed, these infra-subjects are even deprived of their own condition of immigrants, of the right to be an immigrant, resulting in the right to free circulation (a complex right, as exposed by professor chueca), which links directly with the principle of autonomy and its corollary which is having the opportunity to choose our own life plan, and to be able to move accordingly. the construction of the legal figure of the immigrant as an infra-subject or non-subject is obviously related as well to its utilisation as a problem-obstacle to the effects of the internal biased consumption. the immigrant as the scapegoat, as the external aggressor from whom citizens must be protected. in doing so, the system re-legitimises itself, even if it is according to the most antique model of legitimisation which is, as we have seen, the principle primus in orbe deos facit timor: fear. therefore, i believe it can very well be denounced that these migratory and asylum policies are war policies, that they try to instigate fear, to make us afraid, to compel us to give up our freedom and rights, starting with the freedom to criticise, for the sake of the protection we are being offered instead. i find it hard for someone to deny that such model of <border policies> violates the logic of the rule of law itself, its principles and values, its rules: the primacy of the rights, of the legal assets and interests that are established as a priority because they serve basic needs. when all the effort of the migratory policy is to conceptualize immigration in times of crisis as a menace to public order and even security, defence, it is understandable that it requires the institutionalisation of instruments of exception, such as internment camps, the use of armed forces or analogous measures (the frontex system) and the criminalisation of immigrants and even refugees. moreover, this borders’ policy imposes the logic of state territory, serving the notion of market and power, even more of sovereignty, which are already perished: borders violate the universalist logic of legal and political globalisation, which follows the path of legal cosmopolitism at least regarding the equal recognition of universal human rights and its guarantees. a path that reveals the oxymoron of a notion of state sovereignty, which still today aims to force itself upon commands of the rule of law, meaning of the submission to law, starting with human rights. to conclude, as we have seen, this borders’ policy we are referring to is violence that violates, harms those who are most vulnerable before the law, those who are not citizens: the refugees, and in doing so it violates the most basic right, the right to have rights: the asylum. therefore, as it is evidenced by the existence of the cie and, most of all, the externalized camps, as it yet confirmed by the will to revoke the right to asylum exhibited by a large part of european governments, with rajoy’s government at the head of it, the struggle for law, for the rights, for the rule of law, at present day, is the fight against this utilization of borders as violence, a use that entails a perversion of heraclitus’ proposal in their fragment 44 : “the people must fight for its laws as for its walls” (753 (22 b 44) d. l., ix 2). human rights and judicial dialogue between america and europe: toward a new model of law? francisco javier ansuátegui roig∗ abstract: in a context of progressive deterritorialization, the analysis of the judicial dialogue has certain profits when reformulating some aspects of a particular way of understanding the law, characterized by the principle of territoriality and by a theory of the sources of law in which the judge has a clearly secondary position in relation to the legislature and in which the sources are relevant since they are understood as explicit expression of a will. this paper describes the operability of the dialogue between the inter-american court of human rights and the european court of human rights which, horizontally and voluntarily, can help create a context of community in relation to the contents of human rights, based on the recognition of the value of judicial arguments and the judge's self-understanding as members of a hermeneutical community. keywords: judicial dialogue, deterritorialization, epistemic community, judicial comity. summary: i. preamble; ii. context of the reflection on judicial dialogue about rights: globalization and deterritorialization of law; iii. an approach to the characterization and the typology of the judicial dialogue; iv. judicial dialogue on human rights between america and europe; v. judicial dialogue and model of law. i. preamble the aim of this contribution is to emphasize the importance of the dialogue between the inter-american court of human rights (iachr) and the european court of human rights (echr) in order to reformulate some aspects of a particular way of understanding the law, characterized by the principle of territoriality and by a theory of the sources of law in which the judge has a clearly secondary position in relation to the legislature and in which sources are relevant since they are understood as explicit expression of will. nowadays, legal knowledge is less and less compartmentalized and the traditional borders and distinctions (identified with branches of law) often have a purely administrative significance. however, everyone is somehow conditioned by training and by ordinary prospects. this is to justify the fact that the viewpoint of this paper is not ∗ professor of philosophy of law. instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain (javofil@der-pu.uc3m.es). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 24 francisco javier ansuátegui roig necessarily coincident with the characteristic one of constitutional law or international law scholars, for example. i think that from the point of view of the philosophy of law (or, to be more specific, the theory of law) the analysis of judicial dialogue, and particularly dialogue between the iachr and the echr, let us consider some consequences which go beyond the dialogue itself, and which have to do with certain essential questions of theory of law. indeed, i believe that the judicial dialogue has consequences that affect the relationship between law and power. so, we are in an area where the judgment of a court “strange” to the system is taken into account when making the decision, not because it has been pronounced by a competent authority and is a part of the system of sources for which the court is required, but because of the quality, reasonability or prestige of the other court; and as a consequence, the fact that the law comes solely from the will of the appropriate authority in the legal system of reference is no longer an essential element of the theory of normative creation. the criterion of validity no longer has to do with competence (understood as enabled by another norm) of the authority, but with the argumentative quality of the content of the decision. moreover, the judicial dialogue draws attention to the classic question of the position of jurisprudence in the system of sources. in this case, we are not thinking of jurisprudence from an intrasystemic viewpoint but stressing the importance of the “external” jurisprudence as a mechanism of integration, of heterocomposition of the legal system. to this should be added that the judicial dialogue is by no means the only case of exchange, of communication between legal systems or models. in a world where the conditions to which human communication has been subjected for centuries tend to disappear, the legal and doctrinal fields are also scenarios in which the legal dialogue occurs today. ii. context of the reflection on judicial dialogue about rights: globalization and deterritorialization of law i think that any reflection on the judicial dialogue, beyond the required specification of what we are talking about, must begin with an effort of characterization of the legal context in which this dialogue takes place; and which at the same time facilitates such a dialogue. in this regard, i want to emphasize here some dimensions which, while not depleting the scenario on which today judicial dialogue occurs, can help us understand its meaning. thus, i will make a brief reference to two dimensions, certainly interlinked: globalization and deterritorialization of law. the effects of globalization have been approached from very different perspectives. one of those perspectives is the legal one. for the law, globalization means, among other things, the emergence of new dimensions that require regulation, and also the generation of dynamics involving the transformation of consolidated the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 25 human rights and judicial dialogue between america and europe: toward a new model of law? structures and new ways of thinking. i will not explain the various relevant aspects of globalization for the law, abundantly covered by the doctrine1. in any case, the disruption of traditional spatiotemporal conditions that have shaped human action, and which constitutes one of the basic aspects of globalization, no doubt, has consequences that affect the legal discourse. the discourse claiming a direct link between globalization and universality of rights is common. regardless of whether the mere assertion of this relationship deserves a critical analysis (recall the question by stefano rodotà: “globalization through the market or through the rights”? (rodotà 2014: 75)) in any case, it is true that globalization can help in deepening the discourse on the universality of rights. how? by identifying common problems, from the knowledge of the circumstances of the other, causing joint and shared legal structures and efforts to address these problems, which are considered of everyone, and providing answers or possible solutions that can also be shared. from this point of view, globalization can be a contributing element of the requirements of the universality of rights, but not their necessary guarantee. identifying common problems concerning the rights already implies, somehow, the existence of a common and shared discourse –although containing minimum requirements–regarding its foundation. and in the creation and articulation of shared legal structures, certainly the judge plays a very important role. as recalled by sabino cassese from a more general perspective, beyond the states, there are no governments or parliaments, but there are judges and courts (cassse 2009: 4). to this it should be added that among the dynamics of globalization that affect traditional modes of legal thought, are those which require us to rethink the relationship between law and space, between law and territory. consideration of the territory, as an area of validity, as the space which determined the relevance of the issues in which law could be applied –and the competent authority behind it– ultimately the consideration of the state territory as the framework of sovereignty, has been basic in the selfunderstanding of modern law. and it has conditioned the development of international law and international relations considered as relations among subjects which reserved a domain area consisting, initially, in the territory. the presence in a given territory determined the submission to a state jurisdiction in a certain field of subject-matters. but this story, surely, no longer serves us as a whole. i am afraid that in many cases it will continue being worthwhile as an interpretive key for given situations, but in any case it is certain that it does not explain the sense of the dynamics that have to do with globalization and that imply the reformulation of the relationship between law and (state) territory. in this sense, maria rosaria ferrarese has characterized modern law as a limitless law (diritto sconfinato), highlighting the loss of the necessary and exclusive 1 for a recent example, see ruiz miguel (2014). from a more general point of view, see (2000). in spanish, by the same author, see twining (2003). also galgano (2005). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 26 francisco javier ansuátegui roig link between the law and the territorial dimension. indeed, the disruption of this relationship can be performed in different ways. it is possible a hard sconfinamento, whose main manifestation would be war, as the highest expression of conflict and which means rewriting the limits of the boundaries in their geographical and political dimension. but it is also possible a soft sconfinamento, whose language is not military – at least from a traditional point of view; it is the language of technology, economy, or that of the community around a universalist ethics. thus, the transition from a hard mode to a soft implies a progressive irrelevance of the political boundaries of states, with a progressive loss of importance also of territoriality (ferrarese 2006: 12). thus, the law is no longer necessarily linked to the state territory; the legality initiates new development. but it is important to point out an idea here: while overcoming the necessary link between law and state territory means a loss of political density of legal decisions that occur in the new areas –since political will, linked to the will of the majorities in rousseauian terms, is not as easily identifiable after the decision-making– it does not mean that we are in the realm of the irrelevant. the position that the law of rights has in the process of deterritorialization is a good example of this. thus, we would pass from a law which is directly linked to a political will, to a law “to do things”, which is intended to achieve goals and objectives: “the teleological and instrumental inclination of the law is clearly in detriment of that legislative discretion that was the typical feature of state law: the “omnipotence of the legislature” yields to the functionality” (ferrarese 2006: 22). therefore, the process of “sconfinamento” of the law allows us speaking of “sconfinati” rights in a double sense. on the one hand, because a breach of the rightsstate territory relationship, according to which, rights were an exclusive matter of the state. on the other, because the fact that there is also a “sconfinatezza” of their content and scope which, depending on the requirements of their universality, presents them as a kind of “untouchable essence of human beings that identifies the area of what is permitted” (ferrarese 2006: 103). the split of the rigid connection between law and (state) territory has the meaning of an opening process. our time shows us, in terms of gustavo zagrebelsky, the “impotence of the closed constitutional law” and the trend towards an open constitutional law (zagrebelsky 2008a: 386 ff.). i believe that although zagrebelsky´s reflection refers to the lines of evolution of constitutional law in europe, its meaning transcends this area. thus, this overcoming of the connection territory-law implies the correlative overcoming of a “constitutional particularism” linked to the reduction of all the law to the sovereign parliamentary act; and a statement that what is relevant to the law is what is internal to the scope of the sovereignty and the consequent affirmation of the irrelevance of all that is external (zagrebelsky 2008a: 388). but globalization invites –and obliges– us to “look beyond” (zagrebelsky 2008b: 261), in a process in which the distant ends up acquiring relevance in our daily development. in an understanding of globalization as “a condition by which distant events, through causal coordinates of various kinds, produce consequences on the local the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 27 human rights and judicial dialogue between america and europe: toward a new model of law? protection of constitutional goods” (zagrebelsky 2008a: 399)2, constitutional law exceeds, in a sense, the borders of the states and, from the horizontal connections provided by the open structure of the norms of fundamental rights, it is possible to identify a “ultra-state constitutional lowest common denominator”. and, as we shall see, judges will have much prominence in identifying this shared heritage. the judicial dialogue, in its various aspects (dialogue among different constitutional jurisdictions, between constitutional jurisdictions and supranational jurisdictions, or among supranational jurisdictions), is particularly relevant in the field of human rights, or fundamental rights. what can be the reason for this? i think there are several explanatory reasons in a context in which, as we have just seen, we are witnessing the gradual breakdown of the law-territory relationship. we can think of the relevance of rights as fundamental content, normative core of any legal system. but also in the fact that rights imply the existence of a shared normative core, which as such transcends state areas and which is presented as universal, which makes their arguments beyond those areas operate more easily. moreover, the jurisdictions of rights are politically relevant, and these jurisdictions are called to “work” –at least tendentiously– in democratic contexts (and democratic contexts are open contexts ...). i also think that in the concrete case of the dialogue between the iachr and the echr, voluntariness and the horizontal nature of it is an element that enhances its operability. our understanding of rights is that of universal rights whose normative claims go beyond strict state control. indeed, they are rights claiming ultra-state validity, on one hand; on the other, they are rights for which the state cannot claim exclusive competence over other instances or possibilities of control and protection. therefore, the universality of rights is not only a question concerning the normative extension of moral claims. it also requires overcoming traditional state frames of reference, and also regional ones. that means that the jurisdiction of reference will not be exclusively the state´s. this will have to live with other supranational, regional, universal jurisdiction, which also claim jurisdiction in guaranteeing rights. note that we are talking about jurisdictions, i.e., mechanisms in which a neutral third party –the judge– intervenes to resolve a dispute from the application of existing rules. contemporary constitutionalism, which transcends state boundaries, has favored the position of judge in the defense of rights. this, on the other hand, as known, generates legal and political tensions within the systems of democratic constitutionalism3. these tensions are behind the critical reference to the existence of a genuine “juristocracy” (hirschl 2004) or claim of a popular constitutionalism4 or a critical constitutionalism (de cabo martin 2014). but what matters here is to emphasize that this privileged role of the judge is still maintained when we stop thinking of state mechanisms and pay attention to supranational bodies. we are therefore facing a scenario in which there are different jurisdictional mechanisms 2 zagrebelsky has also referred to the contribution of international law to this opening or “dilation in the space of principles in current constitutionalism (see zagrebelsky (2013)). 3 i referred to this tension in ansuategui (2013a). 4 see, among others, kramer (2004). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 28 francisco javier ansuátegui roig intended to ensure rights. therefore, jurisdictions referred to the substantive core of democratic systems. substantive core of which universality is preached, which implies that the arguments in support will not be –should not be– local. in addition, we are thinking of normative arguments, rights, conceptually linked to democratic systems, which are presented as open systems, in antithesis to the closure that should characterize nondemocratic systems. this openness must be understood in reference to the neither particular nor exclusive sense of the arguments aimed at ensuring and consolidating systems of rights. but it also means an opening in regard to the recognition of the weight and validity of arguments and defense strategies generated in other instances, in the “beyond” of zagrebelsky. in this regard, the judicial dialogue can be seen as a requirement of the universality of rights. at this point, taking seriously the universality of rights implies the recognition of the possible validity and enforceability of arguments and reasons generated in other jurisdictions where rights are also claimed. this is possible, as i point out, by the fact that the reasons for rights are not local reasons. talk about universal rights presupposes to preach the existence of some kind of shared normative core. and from the moment that there are shared elements, the dialogue is possible; dialogue which implies, logically, the shared existence of arguments to dialogue about or at least a shared language. otherwise it would be a “discovery”; or an imposition. we have, then, some basic elements that generally allow us to understand the context of the judicial dialogue on rights: deterritorialization of law and rights; universality of rights; relevant position of the judge –not necessarily the state judge– in guaranteeing rights; open nature of rights systems. iii. an approach to the characterization and the typology of the judicial dialogue as is well known, de vergottini has approached critically the indiscriminate use of the notion of “judicial dialogue,” noting that “the dialogue seems to have become one of the rhetorical fetishes that are evoked to hide comparative improvisations often lacking foundation and, in any case, scientifically inappropriate” ((de vergottini 2010: 63). that is, the characterization of the judicial dialogue is not a peaceful issue. in this regard, the judicial dialogue should be differentiated from the unilateral quotation of precedents of a different legal system ((de vergottini 2010: 175-186), or the comparison ((de vergottini 2010: 233 ff.)5, for example. certainly a cautious approach, like that of de vergottini, must be differentiated from that other consisting in the rejection of the use of legal arguments external to the legal system. possibly one of the most representative and known cases is that of justice scalia in the dissenting opinion in the case lawrence v. texas6. on that occasion, the supreme court declared unconstitutional a texas law criminalizing sodomy, and for that they cited english law and jurisprudence of the echr. justice scalia opposed the majority opinion stated by 5 see too de vergottini (2013: 481 ff.). 6 lawrence v. texas, 539 us 558, 568-74 (2003) the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 29 human rights and judicial dialogue between america and europe: toward a new model of law? justice kennedy, favorable to the use of foreign law in the construction of argument and claimed the self-sufficient character of american law originally contained in the constitution (tribe 2004: 1893 ff.)7. that is what gustavo zagrebelsky does not hesitate to describe as “constitutional chauvinism” (zagrebelsky 2008a: 403 ff.) and bruce ackerman considers a “provincial particularism” which should be confronted with a good dose of pragmatism that involves identifying common problems and learning from the strategies employed in addressing these problems (ackerman 1997: 794-797)8. when we talk about judicial dialogue we are, as noted by rafael bustos, facing a scene of variable geometry in which the recognition of the subject and of the order with which there is a dialogue can derive from direct explicit norms, from indirect links, “or even from the peculiar position of the interpretive authority acquired over time by specific courts in the exercise of their functions” (bustos gisbert 2012: 35). a geometry that is variable according to the forms, the intensity, the perspective and the structure (bustos gisbert 2012: 19 ff.). indeed, the transjudicial communication can take many forms. from the mere recognition of foreign court decisions (not explicitly mentioned) in national judgments to the migrations of constitutional ideas; in relation to the intensity, some have spoken of a communication “ad exemplum” (in those cases where foreign reference is cited to support their own decision or to highlight the inadequacies of it); or of a communication “a fortiori” when it comes to consolidate or strengthen the arguments built from the domestic law through reference to external arguments; communication “ad ostentationem” implies strengthening the argument with an erudite and/or abundant quotation, unlike a communication “ad auctoritatis”, which involves the use of a jurisprudence to which authority is recognized to support decisions that are not easy to take with exclusive recourse to their own law. finally, communication “ex lege” is the one imposed by the law itself. regarding the structure, it is possible to speak of vertical, semi-vertical, horizontal dialogues. indeed, it is possible to think of relations between legal systems in a vertical sense –for example, between the law of the european union and those of the member states, or between the law of the council of europe and those of the member states–; and horizontally: between different constitutional jurisdictions, or between various supranational systems (cassese 2009: 41 ff.). and depending on the degree of mutual involvement, anne-marie slaughter has referred to direct dialogues, monologues and intermediate dialogues (slaughter 1994: 99 ff.). in short, we are in a context in which the forms of “transjudicial communication” are varied, as are their functions too (slaughter 1994: 114 ff.); so, 7 the position of justice scalia can be consulted in his discussion with justice breyer in american university in january 2005, “a conversation between u.s. supreme court justices (the relevance of foreign legal materials in u.s. constitutional cases: a conversation between justice antonin scalia and justice stephen breyer)”, international journal of constitutional law, 2005, n. 3 (4), p. 519 ff. 8 lucio pegoraro has pointed out that the “narrow minded vision of the american originalist current (which in flagrant contradiction claims that the rights defended in his constitution are “universal”) is denied by the practice of numerous courts” (pegoraro 2013: 65). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 30 francisco javier ansuátegui roig we can think of an increase of the effectiveness of court decisions, the promotion of mutual recognition of international obligations, the dissemination of ideas (crossfertilization) across the different jurisdictions and legal systems, an increase in the authority and legitimacy of the specific judicial decisions, and the creation of a framework of collective judicial deliberation concerning a common set of problems . in any case, the judicial dialogue presupposes the existence of a “deep sense of participation in a global common enterprise of judging” (slaughter 1999-2000: 1104). iv. judicial dialogue on human rights between america and europe the judicial dialogue between america and europe on human rights occurs in a context that can be characterized according to the features of constitutional pluralism. neil maccormick has pointed out that the constitutional pluralism is identified with a situation where there are several constitutions which do not recognize each other as a source of reciprocal validity, but where there is recognition of their validity. that is, two or more legal systems, considered valid, but which do not see in the others the source of their validity (maccormick 1999). according to the typology handled by the doctrine, the judicial dialogue between america and europe on human rights is a horizontal dialogue in which, as such, the respective recognition, the value of persuasion and the respective empathy do not only function as regulative ideals. i think that the interpretation of the scenario in our current situation is determined, firstly, by the fact that, possibly, too often we have been facing an asymmetric dialogue (martin retortillo baquer 2014: 419), where there has been more unidirectionality than bidirectionality (garcia roca, nogueira alcala, bustos gisbert 2012: 76; cano palomares 2015: 50-52), talking more about the influence of the echr on the iachr than about authentic dialogue (groppi, lecis cocco-ortu 2014: 192). in any case, recognizing that the dialogue is conditioned by the existence of different social realities, the truth is that we can identify some areas where we can speak of homogeneity, while in others we should speak of differences (garcia roca, nogueira alcala, bustos gisbert 2012: 79 ff.). thus, among the similarities, reference should be made to: a) the similarity of the judgment parameters, consisting of the basic elements of the speech of rights and of their international protection gestated within the constitutionalism; b) the recourse to the same judicial criteria and principles of decision, such as the principle of proportionality, effective protection, evolutionary interpretation, or democratic principle; c) the identity of the immediate object of judgment, from a similarity of the facts and the conflicts which originates recourse to judicial protection; d) the similarity of protection proceedings; finally, e) the use of the same argument, based on similar strategies of justification. as regards the differences, these have been pointed out: a) textual differences between the normative reference documents (european convention the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 31 human rights and judicial dialogue between america and europe: toward a new model of law? and american convention); b) structural differences of both procedures; c) differences in legal and political contexts; d) discursive differences, constituted for example by a greater presence of constitutional discourse in the inter-american system, from the recognized relevance to the control of conventionality of law and the implementation of remedial measures. within this framework of mutual recognition both courts, in effect, have sometimes taken the argument generated across the atlantic in making their own reasoning. without being exhaustive, we can recall some examples. the iachr, in advisory opinion (oc-5/85) of 13 november 1985 on journalists compulsory joining a professional association, conducted a comparative analysis of article 13 of the american convention with article 10 of the european convention for the protection of human rights and fundamental freedoms and article 19 of the international covenant on civil and political rights, which made them conclude that “the guarantees of freedom of expression contained in the american convention were designed to be most generous and to reduce to the minimum the restrictions on the free flow of ideas”. likewise, the iachr noted that the references to other systems, could not be taken as a basis for the rights´ more restrictive regulations than those provided by the interamerican system itself: “in truth, it is often useful, as the court has just done, to compare the american convention with the provisions of other international instruments as a means to highlight particular aspects of the regulation of a particular right, but this method could never be used to incorporate to the convention restrictions that are not grounded in its text, though they are present in any other international treaty”. thus the iachr interpreted the art. 29.b of the convention so that “if in the same situation the american convention and another international treaty can be applied, the most favorable norm to the human person must prevail. if the convention itself states that its regulations have no restrictive effect on other international instruments, even fewer restrictions than in those other instruments, but not in the convention, can be applied to limit the exercise of the rights and freedoms recognized by it”. in the same advisory opinion –and in relation to the concept of public order–, the iachr explicitly endorsed the opinion of the european commission of human rights that, in its interpretation of the preamble of the european convention, stated that “the purpose of the high contracting parties when approving the convention was not to grant reciprocal rights and obligations in order to meet their national interests but ... to establish a common public order of the free democracies of europe with the aim of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law”9 moreover, in the judgment of the case herrera ulloa v. costa rica, on july 2, 2004, the iachr when setting its doctrine on the place of freedom of expression in a democratic society, again referred to the jurisprudence of the echr, when in the case ivcher bronstein10 said: “freedom of expression constitutes one of the essential pillars of a democratic society and a fundamental condition for its progress and for the personal 9 austria vs. italy, application no.788/60, european yearbook of human rights, vol.4, (1961), p. 138. 10 judicial sentence, 6 february 2001. serie c no. 74. the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 32 francisco javier ansuátegui roig development of each individual. this freedom must not only be guaranteed with regard to the dissemination of information or ideas that are favorably received or regarded as inoffensive or indifferent but also with regard to those that offend, shock or disturb the state or any sector of the population. such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society. [...] this means that [...] any formality, condition, restriction or sanction imposed in this area must be proportionate to the legitimate aim pursued” (par. 152). on this occasion, the iachr also assumed the references on the issue of the african commission on human and peoples' rights and the human rights committee of the united nations. similarly, in paragraph 170, the court assumed the jurisprudence of the ecthr in relation to the concept of judicial impartiality: “the european court has stated that impartiality has both subjective and objective aspects, namely: first, the court must lack, in a subjective way, personal prejudice. second, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees so that there is no legitimate doubt about it. under the objective analysis, it must be determined whether, apart from the personal behavior of judges, there are ascertainable facts which may raise doubts about their impartiality. in this regard, even appearances may be of some importance. what is at stake is the confidence which the courts must inspire in citizens in a democratic society, especially in the sides of the case”11. similarly, the ecthr has taken arguments drawn from the jurisprudence of the iachr. thus, in the judgment of the case timurtas c. turkey, on june 13, 2000, in reference to forced disappearances, and linking them with the right to life, the ecthr noted “the inter-american court has on several occasions pronounced that forced disappearances frequently involve the violation of the right to life. in the inter-american system, a violation of the right to life as a consequence of a forced disappearance can be proved in two different ways. firstly, it may be established that the facts of the case at hand are consistent with an existing pattern of disappearances in which the victim is killed. secondly, the facts of an isolated incident of a fatal forced disappearance may be proved on their own, independently of a context of an official pattern of disappearances. both methods are used to establish state control over the victim's fate which, in conjunction with the passage of time, leads to the conclusion of a violation of the right to life”12. and in the case akdivar et al. v. turkey, on september 16, 1996, the echr referred to the doctrine of the court concerning the duty of exhaustion of domestic appeals, and especially the case velasquez rodriguez. in short, and as recalled by lech garlicki (garlicki 2013: 56 ff), there are three situations in which the jurisprudence of the iachr is included in the arguments of the ecthr. firstly, in those cases where the ecthr wants to show their knowledge of international law (“window-dressing-approach”). secondly, in cases where the ecthr makes the difference with solutions previously adopted by the iachr, based on textual or interpretive differences. thirdly, we find cases in which the reference to the 11 case pabla ky v. finlad, 26 june 2004, para. 27. 12 in this case, the references to the jurisprudence of iachr are explicit (caso velásquez rodríguez, 29 july 1988, serie c no. 4, § 157; caso godínez cruz, 20 january 1989, serie c no. 5, § 165; caso blake, 24 january de 1998, § 66; caso fairén garbi solís corrales, 15 march 1989, serie c no. 6, § 150). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 33 human rights and judicial dialogue between america and europe: toward a new model of law? inter-american system has a function of legitimation: “whenever the strasbourg court wants to say something new, and, in particular, whenever it decides to depart from its own case-law or/and from the established practice of several member-states, it may need to provide a particularly strong justification of such jurisprudential change. an indication that a similar problem has already been addressed and solved in a similar manner within another system of international human rights protection may considerably assist the argumentation of the strasbourg court” (garlicki 2013: 58). the existence of interdependent and global legal goods, such as rights, justifies the correlative existence of a shared argument. v. judicial dialogue and model of law any reflection on the future of the dialogue between the inter-american and the european human rights courts and their consequences ought to take into account the conditions thereof. thus, two features should be highlighted: its horizontal nature and its voluntary nature. we are in the presence of two regional systems of human rights protection among which there is not hierarchical order. in this sense, any communication between them should be understood as a communication between legal systems (or legal universes) that assume the importance of “looking around” (garlicki 2013: 58). horizontality leads to voluntariness. no one (no authority or norm) requires judges in strasbourg to be attentive to the jurisprudence of san josé (costa rica), and vice versa. so we might wonder why the judicial dialogue occurs in this case, what are the reasons or basis. a wide explanation of the benefits of judicial dialogue or, if preferred, of the communication between judges and courts has to do with the application of condorcet´s jury theorem to this topic. according to this theorem, as the participants in a deliberative process aiming at making a decision increase, the chances of reaching a correct answer increase. thus communication between courts and observing the sense of decisions taken by most courts may be a factor to consider when making the best decision (posner, sunstein 2006: 131 ff.; edelman 2002: 327 ff). it is true that in the present case we do not find strictly the reasons which, according to de vergottini, are behind the appeal to the judge-made law of other systems: the failure of the constitutional text, the adoption of a new constitution or a thorough review, the entailment to certain legal systems, to a legal-cultural area which is not left behind the institutional remoteness, the influence of the constitutional model followed by the constituent or the belonging to the same linguistic-cultural area (vergottini 2010: 188 ff.). therefore, another explanation is needed based on the requirements and consequences. in any case, so that there is judicial dialogue, firstly there must be a sense of community in relation to certain normative contents. indeed, external judgments should not be cited just to demonstrate knowledge of other jurisprudence. the dialogue the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 34 francisco javier ansuátegui roig –and this seems like a logical requirement– is only possible when there is a shared language. and that shared language has to do both with a self-understanding of the judge, as participating in a global joint venture, and with the existence of this community around certain contents, that after all are those of the rights; community which, to exist, must be the result of overcoming the distinction between judges who “give” and judges who only “receive” (l’hereux-dube 1988: 17). regarding the existence of this community of contents, in europe we know well the difficulties of identifying them, and the normative implications thereof. i mean the notion of “common constitutional tradition”, included in the charter of fundamental rights of the european union13. in any case, it seems that the importance of cultural diversity (and, perhaps the “environmental” one) will be inversely proportional to the importance of the core of that community of contents. i think that the question of the universality of rights is presented today as an unfinished problem from both descriptive and prescriptive point of view. that is, the discussion about which rights are universal and which should be, is far from closed14. i think that the most realistic (even honest from the intellectual point of view) but also most demanding from the moral and political point of view is to present the issue in problematic terms. i introduce this point to raise the issue that the dialogue does not need to be presented as a perfect dialogue leading to full identification with the other's position. i think that however much you want to talk about a “euro-american human rights system” (garcia roca, nogueira alcala, bustos gisbert 2012: 99), or present the ecthr as a kind of “world court of human rights” (slaughter 1999-2000: 110), since its jurisprudence has been cited by south africa, zimbabwe or the iachr, we must be aware that if the political and social context in which the ecthr and the iachr operate is different –and this background has some influence on legal interpretation in general–, perceptions about the best way to recognize rights does not need to be matched in full. in any case, beyond the difficulties in identifying the coincidences, the horizontal and voluntary nature of the dialogue necessarily leads to stress the importance of judicial comity (slaughter 1991:1 ff.) of reciprocal recognition and the persuasive dimensions of dialogue. in this regard, it has been said that certain aspects of judicial comity linked to the horizontal judicial dialogue can be highlighted (slaughter 1999-2000: 112 ff.). firstly, the recognition of the court is not derived from the fact that this is an organ of a foreign state; what is recognized in that body is its capacity and ability to resolve disputes interpreting and applying the law honestly and competently. secondly, the capacity of judicial bodies to share strategies employed in resolving disputes and conflicts is recognized. dialogue therefore involves mutual 13 as known, title vii of the charter includes the “general provisions governing the interpretation and application of the charter”. the article 52.4 states “in so far as this charter recognizes fundamental rights as they result from the constitutional traditions common to the member states, those rights shall be interpreted in harmony with those traditions”. i have referred to this issue in ansuategui (2014: 241-259). 14 i have referred to this issue in ansuategui (2013b: 73-122). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 35 human rights and judicial dialogue between america and europe: toward a new model of law? recognition of prestige. for lucio pegoraro, prestige “could constitute the essential postulate but perhaps not enough” of communication between systems. it is the essential postulate when dialogue is horizontal. indeed, where we find a vertical dialogue, the foreign argument is used ratione imperii, it is used because it is required to, in the same manner as in the national law the constitution applies. but in the case of horizontal dialogue, external law is used because they want to do so and not because they must (pegoraro 2013: 63). so, anne-marie slauhgter claimed a positive comity, understood as an overcoming of mere recognition: the positive comity would be an element of impulse of dialogue (slaughter 2004: 250 ff.). in addition, there is an awareness of the importance of the protection of rights and the role of judges in this regard. i think that all this generates dynamics that allow us to speak of a certain “globalization” of jurisdiction. i am not referring to the institutionalization of a global jurisdiction, which could be a good example of the “paradox of globalization” according to which, we need more governance at global and regional level, but at the same time we do not want the centralization of decisionmaking power and coercive authority away from subjects who are called to be governed (slaughter 2004: 8). rather, i am thinking about what julie allard and antoine garapon have called a “commerce des juges” understood as an informal forum for exchanges that do not respond to a specific and predefined structure, but which is located in most cases beyond the institutional mechanisms (allard, garapon 2005: 11). that is, the judicial dialogue generates and presupposes an idea of community. a community based on persuasion and authority of arguments, rather than on the imposition of institutional authority. neither the jurisprudence of the iachr nor that of the ecthr have formal authority to make their arguments mandatory, not even taken into account beyond their territorial scope. what makes them valuable is their argumentative weight, their persuasive authority (glenn 1987: 262 ff.). what the judge in strasbourg is searching when resorting to the jurisprudence of san josé, and vice versa, is to give their decision more authority relying on the rationality of the arguments developed on the other side of the atlantic. here decisions are not taken into account because of their imperium, but because of their iurisdictio (allard, garapon 2005: 57 ff.), or their auctoritas. indeed, what matters is not their enforceability, but the applicability of the arguments to the specific case, so that the decision itself is presented with a higher density in its acceptability. it seems clear that openness to judicial dialogue involves overcoming the theory of syllogistic application of the law from a closed system of sources and a corresponding recognition of a greater role of the judge in identifying normative materials that will support the decision, emphasizing an activist dimension of the judge15. in short, the judicial dialogue on human rights, and in particular that between america and europe, seems to have consequences that go beyond its strictly judicial 15 so does groppi (2011: 205). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 36 francisco javier ansuátegui roig nature and that affect a general understanding of the law. it is true that this dialogue has been enhanced by the relevance of the judicial protection of human rights in the international arena. indeed, regional systems for the protection of rights, at least so it is in the inter-american and the europe cases, end in a tribunal or court. this is already an expression of the importance of the judicial function in guaranteeing rights, in a dynamic that could be interpreted as the result of a translation of some of the logic of constitutionalism at the supranational level16. indeed, since international courts take center stage in practice, we must be aware that the problem of the legitimacy of their decision increases in importance. but also the judge's position is enhanced by the selfunderstanding they have of themselves: they are not inserted in any state structure, do not represent the interests of any government or administration; they claim their autonomy and will be recognized in the framework of the dialogue depending on the argumentative rationality and power of their decisions. the judicial dialogue contributes to an exchange where it is possible to think of an improvement of argumentative quality since we are no longer in the presence of a monologue, but in a scenario on which the actors can take as a reference the arguments of others. but, in addition, that argumentative community expands its effects beyond the mere exchange of arguments regarding rights. no wonder that, indeed, we are facing some effects that not only have to do with a certain flexibility or deformalization of the system of sources. it is not difficult to suspect that given the centrality of the rights in those systems where they are protected (or pretend to be), a dialogue on the rights may end up being a dialogue on the best form of social organization. the dialogue invites us to stress the argumentative dimension of law. while it is true that the interpretation of the rules must be attentive to the context, it is also true that a universal understanding of rights –which go beyond the regional interpretations– implies the recognition of the validity of the arguments in favor of rights beyond where they are developed. from this point of view, the judicial dialogue can be understood as a requirement of the universality of rights. it implies a positive assessment of “look beyond”; a “look beyond” operating from the moment that there is a “common understanding of the language of rights” (l’hereux-dube 1988: 24). thus, the judicial dialogue on rights transcends in its meaning and effects to the existence of a particular resource in the hands of judges who can use when making the decision for the concrete case. on the contrary, it is an important instrument in the internationalization of rights and their universalization, whose demands go beyond the existence of some international texts. the judicial dialogue contributes to creating a common language and, through the flow of information17, promotes the articulation of 16 in this sense, sabino cassese has referred to the reproduction of the contramajoritarian objection in the global law in cassese (2009: 103-105). a. von bogdandy and i. venzke have referred to the problem of the democratic justification of the decisions of the international courts in bogdandy and venzke (2013: 83 ff.). 17 h. p. glenn believes that “the constituent element of every human community is the information and that there could not be more solid materials or autonomous criteria for collective identity than information.” thus, “the epistemic community is simply a community based on the information, without other explicit or implicit foundations”, in glenn (2007: 198, 201). the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 37 human rights and judicial dialogue between america and europe: toward a new model of law? an “epistemic community” (glenn 2011: 87-92) in which it might be possible to speak of a shared culture –at least judicial– of rights in the framework of a transnational legal community. the judicial nature of the dialogue, its persuasive and voluntary nature are elements to consider when reformulating some traditional keys of understanding the legal world. in short, the judicial dialogue invites us to see the law otherwise. openness to other sources outside the system makes that the representations we use to understand the legal system no longer have much to do with a pyramid (kelsen) but rather with a vault (pérez luño) with a network (ost and van de kerchove), or with a novel written by several hands (dworkin). the result of the development of the judicial dialogue on rights is not so much a formal international legal system, structured according to the traditional principle of hierarchy, but a global community of judges who, networking (slaughter 2004: 65 ff.), articulate a community aware of its responsibility in building global legal system in which the requirements of the universality of rights may find an optimal environment for their realization. the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 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(2013), “constitucionalismo”, derechos y libertades, nº 29. the age of human rights journal, 6 (june 2016) pp. 24-41 issn: 2340-9592 doi: 10.17561/tahrj.v0i6.2928 41 http://dx.doi.org/10.2307/4093306 claves de la nueva ley española de biomedicina the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 51 ethics and legal keys to biomedical research in spain antonio cabanillas sánchez 1 jorge zavala 2 abstract: this study analyzes the spanish regulations on biomedical research, with special reference to the act of july 3, 2007, inspired by the instruments adopted by the council of europe and the european union as well as in the domestic laws of the united states and the united kingdom, which are pioneers in the field. this is an advanced law which regulates basic character research and the most controversial issues, both in law and ethical spheres, especially in stem cells research, allowing, with certain limits, the use of embryos, human fetuses, ovocytes and pre-embryos. to complement this approach, the study also analyzes the legal regime applied to clinical trials for drugs and health products. keywords: ethics, spanish law, biomedical research, stem cells, clinical trials. contents: i. introduction; ii. principles guiding human subject research in spanish legislation; iii. the biomedical research act of july 3, 2007 i. introduction for over twenty years, spain has been the world’s leader in the donation and transplant of organs. this is because the spanish model includes a set of legal measures to improve organ donation 3 , and the application has been recommended by the oms in different regions of the world. from a future perspective, there are regulations regarding artificial insemination and biomedical research in humans, consistent with the practice in most advanced countries, where the principlism, known as the georgetown approach to bioethics, is applied and is based on the work of the national commission for the 1 professor of civil law. universidad carlos iii de madrid, spain (antonio.cabanillas@uc3m.es). 2 associate professor of public international law. universidad carlos iii de madrid, spain (yojoa@der-pu.uc3m.es). 3 ley 30/1979, de 27 de octubre, sobre extracción y trasplante de órganos (boe n. 266 de 6/11/1979); real decreto 426/1980, de 22 de febrero, por el que se desarrolla la ley 30/1979, de 27 de octubre, sobre extracción y trasplante de órganos; (boe n. 63 de 13/3/1980); resolución de 27 de junio de 1980, de la secretaría de estado para la sanidad, sobre la organización nacional de trasplantes y los laboratorios de diagnóstico de histocompatibilidad (boe núm. 158, de 2 de julio de 1980); real decreto 411/1996, de 1 de marzo, por el que se regulan las actividades relativas a la utilización de tejidos humanos (boe n. 72 de 23/3/1996) ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 52 protection of human subjects of biomedical and behavioral research (ainslie 2003: pp. 2099-2100). the principlism is best used to address ethical and legal issues raised by the human experimentation method. the four basic principles in which it is inspired, respect for autonomy, which means taking into account the ability of people to make decisions, non-maleficence to avoid damages, charity as specified in the requirement to provide benefits with application of prejudice -benefit rule, and justice, which is the fairness in the distribution of benefits and risks (beauchamp and childress 2013: pp. 13-29; beauchamp 1994: pp. 3-6; ainslie 2003: p. 2100). these principles are linked to human rights (peces-barba 1994: pp. ix-xi) and inspire statements and codes of conduct and professional ethics, which in turn influence international instruments in biomedical research. the laws of many states welcome these principles. spain, for example, passed the biomedical research act of july 3, 2007 4 , which is one of the first laws that was enacted by the states of the council of europe following the adoption of the additional protocol on biomedical research of 25 january 2005 of the convention on human rights and biomedicine of 4 april 1997 5 . in the uk and in the u.s. the critical issue in respect to ethics and law is the research concerning pre-embryos, embryos and fetuses. to solve this problem spain adopted a permissive approach that appears in the biomedical research act, which has generated a lot of controversy, not only on ethical grounds but also on constitutional aspects. ii. principles guiding human subject research in spanish legislation unlike the charter of fundamental rights of the european union (article 3), 6 the spanish constitution does not specifically refer to biomedical research. nevertheless, the constitution is clearly in harmony with the u.s. concept of principlism, addressing the majority of the fundamental rights on which this method is based, including the dignity of the individual, the right to life and to physical and moral integrity, freedom of thought or conscience, the right to privacy, freedom from discrimination based on race or sex, and the right to protect scientific and technical inventions (cruz villalón 2006; romeo casabona 2002: pp. 1-2). all of these are present in the belmont report, 7 which was highly influential not only in the united states commencing with the work of t. l. beauchamp and j. f. childress (2013) but also in many other countries, in the work of many ngos and the most significant 4 boe no. 159, 4 de julio de 2007. 5 ratified by spain. official state gazette no. 251 (20 october 1999). spain has not ratified the additional protocol. 6 official journal of the european union 2000/c 364/01 7 the belmont report, ethical principles and guidelines for the protection of human subjects of research, the national commission for the protection of human subjects of biomedical and behavioral research, april 18, 1979. antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 53 international organizations for the protection of human rights, such as the council of europe and unesco, setting forth the ethical principles for addressing the problems that arise from biomedical research (jonsen 1994: pp. 13-21). principlism is universal in nature. it is inevitably applied in a diversity of cultures, religious beliefs and political systems. 8 a common medical ethic is needed in the treatment and prevention of human diseases, where the four great principles of bioethics play an essential role (preston 1994: pp. 23-30). principlism is reflected in professional codes of conduct and ethics, which in turn have influenced international instruments dealing with biomedical research, such as the convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine (convention on human rights and biomedicine) of april 4, 1997 9 and its additional protocol concerning biomedical research of january 25, 2005, as well as the universal declaration on bioethics and human rights of october 19, 2005. the basic principles set forth in these instruments have been accurately reflected in the domestic laws of many countries. spain’s laws reflect the principlism, noting that the key issues relate to the grounds and the hierocracy of these principles. they give structure to application in biomedicine and are essential in adopting rigorous ethical decisions by the medical professionals and other health sciences (gafo 1998: pp. 106-111; gracia 1989: pp. 99-104; 182-197; 285-293; castellano 1998: pp. 31-36). the law establishes the principles and guarantees that need to be respected by biomedical research on humans (silveira 2008: p. 24). the biomedical research act of july 3, 2007 is influenced by these principles 10 . the principles set forth in these international instruments are present in recent spanish legislation governing biomedical research due to the fact that they have been strongly influenced by the convention on human rights and biomedicine and its additional protocol concerning biomedical research, as well as by u.k. and u.s. legislation and practice. spanish legislation in this area includes the royal decree of february 6, 2004 regulating clinical trials with medicines; the medicines and health products (guarantees and rational use) act of july 26, 2006; the order of the ministry of health and consumer affairs of february 5, 2007 regulating research on medicines for human use; and the biomedical research act of july 3, 2007. the importance of research on medicines and health products explains why the first legal provisions in spain concerning biomedical research were passed to regulate clinical trials with drugs. royal decree of february 6, 2004 regulating clinical trials with medicines 11 transposed into spanish law directive 2001/20/ec relating to the implementation of good clinical practice in the conduct of clinical trials on 8 this affirmation is evidenced in the extensive work edited by r. gillon and a. lloyd in 1994, in which almost 100 authors from different disciplines, nationalities, religions and cultures collaborated (gillon, r. and lloyd, a. (1994)). 9 ratified by spain; official state gazette no. 251 (20 october 1999). 10 torres casorla and garcía rico 2012: pp. 179-204; sánchez díaz 2012: pp. 205-221; bonilla sánchez 2012: pp. 223-243; fernández-costales muñiz 2012: pp. 245-257; lecuona 2011: pp. 117-122. 11 official state gazette no. 33 (7 february 2004). ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 54 medicinal products for human use (the “clinical trials directive”) within the scope of the european union. the royal decree is modeled on principles governing clinical trials in human subjects set forth in the declaration of helsinki and the convention on human rights and biomedicine, as well as legislation protecting personal data, including the spanish personal data protection act (organic law of december 13, 1999). 12 pursuant to the royal decree regulating clinical trials with medicines, a clinical trial may only be commenced when the clinical trials ethics committee and the spanish medicines and health products agency consider that the benefits for the trial participants and society in general justify the risks. clinical trials must be conducted according to the standards of good clinical practice published by the ministry of health and consumer affairs, which are binding upon the sponsor, monitor and investigator. 13 compliance with these standards is verified through inspections carried out by the spanish agency for medicines and health products, as well as the health authorities of the autonomous communities within the scope of their respective powers. 14 the physical and mental integrity of subjects, as well as their privacy and the confidentiality of their personal data must be guaranteed. each clinical research participant must freely give his informed consent in writing before being included in the trial. 15 the informed consent of a legal representative is required for participating minors or incapacitated adults. at any time, research subjects or their legal representatives may revoke their consent without detriment of any kind. 16 as a general rule, clinical trials with investigational drugs cannot be conducted unless an insurance policy or other financial guarantee has been previously subscribed to cover damages in the event of injuries to participants that may arise as a result of the trials. if no insurance or other financial guarantee has been provided, or if they do not entirely cover the damages claimed, the sponsor of the clinical trial, the primary investigator and the hospital where the trial is conducted shall share joint and several strict liability for any impairment in the health of a trial subject, including economic loss, likewise bearing the burden of proving that they are not the consequence of the clinical trial or the therapeutic or diagnostic measures taken during the course thereof. in these circumstances, neither administrative authorization nor the favorable opinion of the clinical trials ethics committee will enable the sponsor of the clinical trial, the primary investigator and his collaborators, or the hospital or institution where the trial is conducted to disclaim liability. unless otherwise proven, it is assumed that impairment to a subject’s health during the course of a clinical trial and for one year thereafter is the result of the trial. however, after a year the subject is required to prove the causal nexus between the clinical trial and the impairment sustained. liability for compensation includes all expenses derived from any impairment in the clinical trial subject’s health or physical state, including any directly-derived economic loss, provided that such impairment is not inherent in the pathology under study, is not among the adverse 12 official state gazette no. 298 (14 december 1999). 13 articles 34-39. 14 article 40. 15 article 3. 16 article 7.1-7.5. antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 55 reactions to the medication prescribed for that pathology, or is not simply part of the evolution of the illness in question as a result of the ineffectiveness of the treatment. the minimum liability guaranteed per clinical trial subject is 250,000 euros, as lump sum compensation. clinical trials ethics committees play a fundamental role in evaluating the methodological, ethical and legal aspects of the clinical trials submitted to them and assessing any relevant changes in the trials initially authorized, as well as overseeing trials from their commencement until their final reports are submitted. 17 sponsors must likewise apply to the director of the spanish medicines and health products agency for authorization to conduct their clinical trials. 18 the agency may resolve to suspend or revoke a trial on its own initiative or upon a justified petition from the sponsor, if the trial contravenes the law, if the conditions under which it was authorized change, or due to noncompliance with the ethical principles designed to protect clinical trial subjects and ensure public health. 19 upon termination of the trial, the sponsor must notify the agency and the ethics committees of that fact within ninety days. 20 failure to comply with these obligations constitutes an administrative infraction and carries the corresponding sanctions set forth in the medicines and health products (guarantees and rational use) act of july 26, 2006. 21 the fundamental guarantees contained in the royal decree regulating clinical trials with medicines are likewise reflected in the medicines and health products (guarantees and rational use) act of july 26, 2006. this law provides four guarantees to ensure that clinical trials are conducted satisfactorily, while protecting the fundamental rights of trial subjects. first there are guarantees of suitability, which ensure that clinical trials on investigational drugs are submitted for approval by the spanish medicines and health products agency. 22 the public health authorities have powers to inspect clinical trials, 23 ensuring compliance with standards of good clinical practice. 24 trials must adhere to the content of the specific research protocol for which authorization was granted, and any subsequent changes. 25 all clinical trial results, whether positive or negative, must be reported to the spanish medicines and health products agency, without prejudice to likewise notifying the authorities of the autonomous communities in which the research was conducted. 26 the second guarantee concerns ethical principles, according to which clinical trials must respect the fundamental rights of trial participants and those affecting biomedical research in human subjects, which reflect the content of the declaration of 17 article 10 as it relates to articles 11-14. 18 article 20 and ff. 19 article 26. 20 article 27. 21 official state gazette no. 178 (27 july 2006). 22 article 59.2. 23 article 59.3. 24 article 59.4. 25 article 59.7. 26 article 59.8. ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 56 helsinki. 27 a third guarantee entails assumption of liability, whereby clinical trials will require an insurance policy or other financial surety to ensure coverage for any claim for damages that may derive from the research undertaken. 28 as was the case with the clinical trials regulation, if for any reason the insurance does not totally cover the injuries caused, the sponsor of the trial, the primary investigator and the hospital or institution where the trial was conducted shall share joint and several strict liability, and shall bear the burden of proof. neither administrative authorization of the trial nor the opinion of the clinical trials ethics committee will enable them to disclaim this liability. 29 unless proven otherwise, impairment to the health of participants sustained during the trial and up to one year thereafter is deemed to be a result of the trial. however, after a year the trial subject must prove the nexus between the trial and the impairment sustained. 30 a fourth guarantee concerns transparency in clinical trials, which must be entered on a national register of clinical trials that is public and may be freely accessed. 31 the sponsor is likewise obliged to publish both positive and negative results. to ensure compliance with these guarantees, there is a system for inspecting and ordering provisional remedies, and heath authorities carry out the necessary inspections within the scope of their powers. 32 after the pertinent investigation, failure to comply with these obligations will be subject to administrative sanctions, without prejudice to any civil, criminal or other liability which the nonconforming party may incur. the ministry of health order of february 5, 2007, 33 setting forth the specific principles and directives of good clinical practice and the standards for authorizing the manufacture and import of investigational drugs for human use incorporates into spanish law the european union “good clinical practice directive” 2005/28/ec. as indicated in its preamble, this order was issued pursuant to the second final provision of the royal decree of february 6, 2004 regulating clinical trials with medicines. in a manner similar to the aforementioned provisions, this order regulates the principles and directives for good clinical practice in clinical trials with investigational drugs for human use, the requisites for authorizing the manufacture and import of those medicines, detailed instructions on trial documentation and records, and the qualification of inspectors and inspection procedures. iii. the biomedical research act of july 3, 2007 the biomedical research act of july 3, 2007 (beauchamp and childress 201; beauchamp 1994; ainslie 2003) incorporates into spanish law the principles contained in the convention on human rights and biomedicine and its additional protocol, 27 article 60.1. 28 article 61.1. 29 article 61.2. 30 article 61.3. 31 article 62.1. 32 article 98.1. 33 official state gazette no. 38 (13 february 2007). antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 57 regulating research on human subjects. other laws, such as the patient autonomy (clinical information and documentation rights and responsibilities) act of november 14, 2002 34 and the personal data protection act of december 13, 1999, may be applied subsidiarily, provided that they are not in conflict with the biomedical research act 35 . this law also repealed several other provisions in this area. 36 this act lends full respect to human dignity and identity rights of the individual, with respect to biomedical research, whether it be basic or clinical research 37 , except in clinical trials with medicines and health products 38 . such trials are allowed during pregnancy and lactation, and in persons unable to consent because of their clinical condition 39 . biomedical research on embryos, fetuses, oocytes and preembryos is also supported, which has always been a contentious issue 40 . literature in both the u.k. and the u.s. clearly distinguishes between the embryo and the human fetus. j. m. harris, d. morgan and m. ford affirm that scientifically the product of conception is called “embryo” until the eighth week of gestation. from that moment, the term changes and it is referred to as a “fetus.” in practice, an embryo as the subject of research is the laboratory embryo, which is usually the result of in vitro fertilization (ivf). moreover, within the category of embryo, a variety of terms are used: preembryo, preimplantation embryo, ex utero embryo and premature embryo (harris, morgan, and ford 2003). with regard to embryo research, the fourteen-day term is essential, as was underscored in the united kingdom in the warnock report of 1984. however, some authors suggest that justification for the fourteen-day limit is not convincing and propose extending the limit for research with embryos fertilized in vitro to thirty-eight days. 41 one of the reports of the president’s council on bioethics underscores the increased capacity to intervene in the beginnings of human life, especially life outside the body, whether in the clinic or the laboratory, which has given rise to huge advances in biotechnology in recent decades. this capacity, which emerges from a confluence of work in reproductive biology, developmental biology and human genetics, has raised ethical issues involving a 34 official state gazette no. 274 (15 november 2002). 35 second final provision of the biomedical research act. 36 law 42/1988 of december 28 (donation and use of human embryos and fetuses or their cells, tissue or organs act) and any provisions of any rank that are contrary to the provisions of this law. likewise repealed are: paragraphs 5 and 6 of article 45 and articles 46, 47 and 50 of law 16/2003 of may 28 (national health system cohesion and quality act); title vii and chapters ii and iii of title vi of law 14/1986 of april 25 (general health act); the second additional provision of law 14/2006 of may 26 (human assisted reproduction techniques act); and articles 10 and 11 of the bylaws of the national center for transplants and regenerative medicine passed by royal decree 176/2004 of 30 january (sole repeal provision. legislative repeal). 37 article 1.1. 38 article 1. 3. 39 articles 19 and 20. 40 de miguel beriain, 2004: p. 358; ruiz de la cuesta 2012: pp. 23-39; casonato and penasa 2012: pp. 41-65; ferrajoli 2011: pp. 729-744; díaz revorio 2011: pp. 789-826; rivera lópez 2011: pp. 1065-1094; gascón abellán 2011: pp. 1095-1121. 41 edwards 1989 (cfr. walters, l. (revised by a. drapkim lyerly) (2003)) ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 58 number of important human goods. 42 it is not surprising that many of the technological applications in this field are controversial. the origins of these controversies are rooted in different criteria concerning the diverse interests at stake and the weight to be given each of them: reproductive freedom, prenatal life, the status of embryos and freedom of scientific research, among many others. these interests are perceived and valued in many different ways in plural societies such as the united states. the president’s council on bioethics has affirmed that there is profound disagreement in u.s. society concerning the degree of respect owed in vitro human embryonic life and its relation to other moral considerations such as helping infertile couples have healthy children and advancing biomedical knowledge that might lead to cures for terrible diseases. 43 in that regard, the united kingdom has adopted criteria that place few limits on the application of assisted reproduction techniques and biomedical research with preembryos, implementing solutions that are more permissive than those presently existing in the united states and other countries. 44 the regulation of assisted reproduction and embryo research came to the forefront with the publicity surrounding the birth of louise brown. the 1984 warnock report recommended regulating assisted reproduction and authorizing research with embryos created in vitro for up to fourteen days after fertilization. based on the warnock report, the human fertilisation and embrylogy act (hfeact) was passed in 1990 to set up the necessary requisites and controls. research protocols were initially limited to studying infertility and the causes of congenital defects, as well as to identifying abnormal genes or chromosomes in embryos (walters (revised by a. drapkim lyerly) 2003: p. 925). in a statutory instrument of january 24, 2001, parliament amended the hfeact to permit embryo research to increase knowledge to be applied in developing treatment for serious disease. in 2003 the house of lords further increased the scope of the hfeact to include all types of embryos, not only those created by fertilization of eggs by sperm. thus, the human fertilisation and embryology authority (hfea), created in 1991, assumed the powers to authorize research with embryos created by means of nuclear transfer, as well as through fertilization with sperm (harris, morgan, and ford 2003: p. 507). and on may 17, 2007 the british government authorized the creation of interspecies embryos for disease research purposes, provided that they are destroyed after fourteen days of development and are never implanted in a uterus. the authorization of this new procedure can be explained by the fact that, in contrast to the immense majority of countries, the creation of human embryos for research purposes has been permitted since 2004. the decision was the result of pressure from scientific groups faced with a severe shortage of human eggs for use in research. the hfea must analyze each individual application, and issues its authorization only for a single line of research. an initial research project with hybrid embryos has already been conducted (jha 2008). 42 the president’s council on bioethics, reproduction & responsibility. the regulation of new tecnologies, washington, d. c. (2004) xxxix. 43 id., 8. 44 for an excellent analysis of historical and ideological aspects of legislative options in the united states, united kingdom and germany, see belew 2003-2004: pp. 479, 486, 496, 507. antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 59 pursuant to the nih revitalization act of 1993, the united states congress authorized the national institutes of health (nih) to finance research using assisted reproduction techniques to increase the knowledge and treatment of infertility. research authorized by congress included the use of human embryos. recognizing the controversies surrounding such research, the nih decided that an analysis of ethical aspects was warranted prior to financing any of the proposed projects. for that purpose, the nih turned to the human embryo research panel (hepr), in charge of providing advice and recommendations in this field. the hepr considered the moral status of embryos and the ethical standards governing research with human subjects. it affirmed that although the pre-implantation human embryo warrants serious moral consideration as a developing form of human life, it does not have the same moral status as infants or children. 45 this conclusion implies that pre-implantation embryos are not fully human beings, and thus do not warrant protection as such. based on this determination, certain research projects that may result in the destruction of embryos have been considered acceptable for federal funding. however, the hepr affirmed that human embryos deserve “serious moral consideration” and should be accorded treatment different from that given mere human cells or animal embryos. in that regard, the hepr proposed restrictions on embryo research based on moral considerations. thus, human embryos should be used in research only as a last resort, the number of embryos used should be limited and embryos should not be allowed to develop beyond the time required in the specific research protocol and never beyond the fourteen-day limit. applying ethical standards governing research on human subjects, the hepr invoked criteria used by institutional review boards (irbs). egg, sperm and embryo donors must be informed of the specific purposes of the projected research, as well as its procedures and risks. despite president clinton’s directing the nih not to finance the creation of embryos solely for research purposes, the majority of research involving in vitro fertilization and human embryos is federally funded. moreover, congress changed its previous position and prohibited the nih from financing any project that damages or destroys human embryos. in recent years the ethical and political debate concerning research with “spare” embryos from in vitro fertilization treatments has intensified. some authors have proposed restrictive criteria, opposing any research with embryonic stem cells resulting in the death of the embryo, which is considered a human being. the catholic church’s position is particularly clear in that regard. in line with the dominant position in the united kingdom, others think that obstacles should not be placed on this type of research, considering that embryos cannot be deemed human until at least fourteen days after fertilization, 46 and that there should be no objection to the creation of embryonic stem cell banks (ecker and o’rourke 2007: pp. 48-50; lott and savulesco 2007: pp. 37-44). 45 “human embryo research panel, national institute of health,” report of the human embryo research panel, vol. 1, washington d. c. (1994) x. 46 the debate is extraordinarily intense in the united states in which there is a confluence of scientific, ethical, religious, economic and political factors, reflected in an extremely abundant bibliography. presently, this is perhaps the most controversial aspect of bioethics, given that biomedical research depends decisively on research with embryonic stem cells. see steinbock 2006: pp. 26-34; degrazia 2006: pp. 49-57; gómez-lobo 2004: pp. 75-79; johnson 2007: pp. 19-30; fennel 2008: pp. 84-91; mcleod and baylis 2008: pp. 467-477; gibson 2008: pp. 370-378; agar 2008: pp. 198-207. ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 60 the president’s council on bioethics’ report on reproduction and responsibility (washington, d.c: pcb, 2004) recommends legally prohibiting human embryo research under certain conditions, and specifically, that embryos not be maintained in vitro for more than fourteen days following fertilization. with a view to expressly respecting the status of the human embryo, research conditions have been established that are much more restrictive than those regulating research with human cells or animal embryos. for example, research must be conducted for significant scientific or medical objectives, and may only involve the use of human embryos if the research cannot be carried out by other means. as a control mechanism, ethics committees are to play a fundamental role in ensuring compliance with legal provisions governing this type of research (douglas 2007: pp. 732-736). in 2007, with a democratic majority, congress passed a law facilitating federal funding for biomedical research with surplus embryos from in vitro fertilization, with the possibility of obtaining embryonic stem cells. president bush vetoed that legislation, considering that it threatens the life of the embryo, having constantly manifested his opposition to the unlimited use of embryonic stem cells because it results in the destruction of embryos. the intense debate in this area may be largely explained by the economic interests involved in the area of biomedical research and, in general, in medical practice, as underscored by numerous authors concerned about the “problem of commercialism in medicine. 47 in other respects, two independent teams of japanese and american scientists have obtained pluripotent cells from skin. this research has resulted in the discovery of a technique that yields stem cells without the use of human embryos. nevertheless, it is in the early stages and must be further developed to adequately assess its potential. the spanish biomedical research act sets limits on in utero research with live embryos and fetuses. in utero interventions can only be conducted for diagnostic or therapeutic purposes in the interest of the embryo or fetus, without prejudice to legal provisions for the voluntary interruption of pregnancy. 48 research on human embryos and fetuses must comply with a series of requisites to ensure that they conform to the principles on which the biomedical research act is based. they must be human embryos or fetuses that have lost their capacity for biological development, and the donor or donors (or their legal representatives in the case of non-emancipated minors or incapacitated adults) must have previously given their express informed consent in writing. the project detailing the use to be made of the embryos or fetuses must be approved by the oversight committee for donations and use of human cells and tissue, as well as the corresponding state or autonomous community authorities. and the team in charge of the authorized project must report the results to both the entity that authorized the project and the oversight committee for donations and use of human cells and tissue. 49 research with pregnant women may only be authorized if it entails 47 kassirer 2007: pp. 377-386; rodwin 2007: pp. 387-397; churchill 2007: pp. 407-414; fins 2007: pp. 425-432. 48 article 30. 49 article 31. antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 61 only minimum risks for the embryo, fetus or child. 50 research with oocytes and preembryos is authorized, 51 provided that consent is obtained from their donors, which may be revoked at any time without affecting the research in question. 52 oocyte and preembryo donation is governed by the provisions of the human assisted reproduction techniques act of may 26, 2006. 53 in any case, the creation of human preembryos and embryos for research purposes is prohibited. 54 nevertheless, within the terms defined in the act, any technique may be employed for obtaining human stem cells for therapeutic uses or research, as long as preembryos or embryos are not created exclusively for that purpose, including the activation of oocytes through nuclear transfer. 55 research and experimentation are permitted with surplus oocytes and preembryos, or their biological structures, obtained from assisted reproduction treatments, for the purpose of harvesting, developing and using embryonic stem cell lines or for other purposes not related to the development and application of assisted reproduction techniques. in that regard, the conditions set forth in the human assisted reproduction techniques act must be met, and the research must respect the ethical principles and applicable legal precepts, particularly those contained in the biomedical research act and its implementing regulations, reflecting the principles of relevance, feasibility and suitability. 56 authorization is subject to receiving approval from the management of the institution where the research is to be conducted, as well as a favorable opinion from the corresponding research ethics committee. the project must indicate any relationships or common interests of any nature, if any, between the research team and the entity that conducted each of the assisted reproduction processes that produced the preembryos or that intervened in obtaining the oocytes to be used. the project must likewise contain written undertakings to provide the public authorities with data that identify and enable monitoring of the conservation of any stem cell lines that may be obtained during the research and to provide those stem cell lines free-of-charge for use by other researchers. and in the event oocytes or preembryos are used, the project must provide an indication and justification of their origin and the number used, as well as informed consent documents signed by their respective donors. 57 the preamble to the biomedical research act underscores that this law governs areas that were previously unregulated or only partially covered, given changes in recent years, particularly in the areas of genetic analysis, research with human biological samples, especially embryonic ones, or biobanks. the act explicitly prohibits the creation of human preembryos and embryos exclusively for research purposes, in accordance with the gradualist position with respect to the protection of human life set forth by the constitutional court in its judgments 53/1985, 212/1996 and 116/1999, but 50 article 19 c). 51 “preembryo” is defined in article 3.s), affirming that it is an embryo created in vitro, formed by a group of cells resulting from the progressive division of an oocyte from its fertilization until 14 days thereafter. 52 article 32.1. 53 article 32.2. 54 article 33.1. 55 article 33.2. 56 article 35.1. 57 article 34.2. ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 62 it permits the use of any technique for obtaining human stem cells for therapeutic purposes or research, providing the preembryo or embryo is not created exclusively for that purpose and in the terms set forth in the act. with regard to the use of surplus embryos from human assisted reproduction treatments, the legal framework is set forth in the human assisted reproduction act of may 26, 2006, which expressly prohibits so-called human reproductive cloning. prior to the enactment of the biomedical research act, efforts were made to determine whether research with preembryos was legally admissible (tur ausina 2008: pp. 789-812). commencing with its judgment 53/1985 of april 11 regarding article 417 bis of the criminal code in relation to criminal abortion, the constitutional court considered the nasciturus not as a person and a subject of fundamental rights, but rather as a “constitutional interest” worthy of protection. the court ruled that the arguments alleged by the appellants could not be accepted to support the thesis that the nasciturus also has the right to life, but rather that it is a “constitutionally-protectable interest,” and that lawmakers must not impede the natural gestation process and must adequately protect this legal interest, even with penal laws, when warranted. this case law of our constitutional court reflects the case law of the european commission of human rights in the 1980s, which denied that the concept of person as defined in article 2 of the council of europe’s convention for the protection of human rights and fundamental freedoms of 1950 applied to the protection of the nasciturus. this constitutional court case law was firmly established in judgment 212/1996 of december 19 concerning the human embryos and fetuses (donation and use) act 42/1988 of december 28 and in judgment 116/1999 of june 17 on the human assisted reproduction techniques act 35/1988 of november 22. constitutional court judgment 212/1996 of december 19 affirms that the regulation provided in the human embryos and fetuses (donation and use) act is based on the fundamental precept that biomedical research can only be conducted on non-viable human embryos and fetuses, case law that was reiterated in constitutional court judgment 116/1999 of june 17. law 7/2003 of october 20 58 regulating research in andalusia with human embryos that are non-viable for in vitro fertilization considers that preembryos are no longer viable after five years in cryostorage. law 45/2003 of november 21, 59 amending the 1998 human assisted reproduction techniques act (law 35/1988 of november 22) addresses the problem of surplus embryos. any use of preembryos in cryostorage prior to the enactment of this law must be determined by the couple or woman involved, who may chose between 58 official state gazette no. 279 (21 november 2003). 59 official state gazette no. 280 (22 november 2003). antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 63 maintaining them in cryostorage until they are transferred, donating them for reproductive purposes, or consenting to the use of the biological structures obtained upon thawing for research purposes, within the limits set forth in the law’s final provision. royal decree 2132/2004 of october 29 60 defines the requisites and procedures for research using stem cells obtained from surplus preembryos. the new human assisted reproduction techniques act 2006 (law 14/2006 of may 26 61 ) introduced essential changes in the area of biomedical research with human embryos from in vitro fertilization by authorizing research or experiments with surplus preembryos from assisted reproduction treatments. the controversy concerning research with oocytes and preembryos involves the conflict between both the human assisted reproduction techniques act 2006 and the biomedical research act 2004 and the case law of the constitutional court established in judgments 212/1996 of december 19 and 116/1999 of june 17 whereby research or experiments can only be conducted on preembryos if it does not compromise their viability, which is not the case when obtaining embryonic stem cells. thus the constitutionally-guaranteed protection of human life is violated when the harvesting of embryonic stem cells results in the destruction of the preembryo, implying a utilitarian concept of the embryo that ignores its status as a human being in its initial stage of gestation. the embryo is a live human being in the process of development from the moment of fertilization, since from that moment all genetic material is present. there is no preembryonic stage, since prior to the embryo the human being does not exist, there merely being two sexual cells, the egg and sperm. the term “human embryo” is not clearly defined, thus compromising legal certainty, since “preembryo” lacks scientific rigor as an autonomous category and its use is not authoritative. in effect, “preembryo” is not used in international instruments, and the convention on human rights and biomedicine and its additional protocol do not refer to “preembryos,” but rather exclusively to “embryos.” there are likewise alternatives to the use of embryonic stem cells that do not involve the destruction of embryos. these include harvesting umbilical stem cells or the possibility of creating embryonic stem cell lines without destroying an embryo, as when they are obtained from skin cells. in any event, it will be difficult to reconcile the new laws on human assisted reproduction techniques and biomedical research with the constitutional court’s case law (cruz villalón 2006: pp. 25-26) unless embryonic stem cells can be obtained without the destruction of embryos. having thus outlined the terms of the debate, we can only await the constitutional court’s response to a possible appeal challenging the constitutionality of research with surplus embryos from in vitro fertilization treatments, as authorized in the biomedical research act. the constitutional court will certainly have to clarify its position concerning the protection of the nasciturus and the viability of human embryos. 60 official state gazette no. 262 (30 october 2004). 61 official state gazette no. 126 (27 may 2006). ethics and legal keys to biomedical research in spain the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 64 however, it should be noted that in the ample period transpired since the act was passed, there has been no indication that any political group intends to challenge its constitutionality, most likely due to significant underlying economic interests, among others. the draft of the law for the protection of life of the conceived and the rights of the pregnant woman amends organic law of november 23, 1995 of the criminal code, which only allows abortion when necessary to prevent a serious threat to life or physical or mental health of the pregnant woman, if practiced within the first twenty weeks of gestation, when the pregnancy is the result of an illegal act against sexual freedom or indemnity, the abortion is performed within the first twelve weeks of pregnancy and the offense must be reported previously (art. 145 bis). if the draft legislation finally becomes law, an ethical debate will be launched on research with preembryos in the terms allowed by biomedical research law. as a supplement to the biomedical research act, patient autonomy (clinical information and documentation rights and responsibilities) act (law 41/2002 of november 14) is applicable in any area that it does not cover. 62 the patient autonomy act does not specifically address biomedical research, although when defining interventions within the scope of medical care, it expressly refers to research. with regard to its scope of application, it should be noted that it regulates the right to medical information, 63 right to privacy, 64 and respect for patient autonomy, which is particularly reflected in the regulation of informed consent as a fundamental aspect of this law, 65 as well as clinical records and other documents. 66 the extraordinary importance of biomedical research in spain in the last few years, especially with respect to the use of embryonic stem cells, has resulted in its being one of the sectors with the highest level of investments, both public and private, particularly on the part of the pharmaceutical industry, as is the case in the united states and, in general, in countries in which research in this area is conducted. 67 62 second final provision. 63 articles 4-6. 64 article 7. 65 articles 8-13. 66 articles 14-23. 67 interministerial committee for science and technology, national plan for scientific research, development and technological research 2008-2011. antonio cabanillas sánchez – jorge zavala the age of human rights journal, 2 (june 2014) pp. 51-67 issn: 2340-9592 65 references agar, n. 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(dir): encyclopedia of bioethics, vol. 4, 3º ed. new york: thomson gale. human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 32 human trafficking and the rome statute of the international criminal court clare frances moran 1 abstract: the case for extending the reach of the rome statute to the crime of human trafficking has not yet been made in detail. the brutality which occurs when human beings are trafficked by criminal gangs is of an equally egregious nature as the other crimes covered by the rome statute and yet it does not fall within the remit of the international criminal court. such trafficking may also fall outwith the definition of slavery as a crime against humanity, particularly given the state policy threshold set by the statute. this paper seeks to explore the viability of the inclusion of human trafficking as a discrete international crime within the rome statute as a response to this loophole. keywords: human trafficking, human rights, international criminal law, international criminal court summary: i. introduction; ii. the intention to include human trafficking within the statute; iii. including criminal gangs within the icc’s jurisdiction – organisations, widespread or systematic attacks and complementarity; iv. human trafficking as a core crime: using the ‘genocide’ threshold as a test; v. conclusion. i. introduction the slavery convention, which entered into force on 9 march 1927, was the first international agreement to outlaw, without discrimination based on gender or race, the practice of exercising ‘any or all of the powers attaching to the right of ownership’, as held in article 1(1), over an individual. this internationally agreed definition of slavery has endured, being referenced in preference to the previous international agreements in this area which defined slavery as being the sexual exploitation of caucasian women and girls. indeed, subsequent regional and international human rights and criminal law instruments affirm the prohibition, without qualification or limitation, of the practice of slavery. the age of the instruments would give the impression that the problem of slavery has been eradicated, without need for further legal intervention. however it would appear that it has simply evolved. slavery’s modern incarnation (unodc, 2009: 6) human trafficking, is termed far more expansively than its ancestor. 1 teaching fellow, dbs law division, university of abertay dundee, uk (c.moran@abertay.ac.uk). clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 33 the ‘recruitment, transportation, transfer, harbour or receipt of persons’ however coercively or forcibly that may be done, financial incentives included, is considered trafficking, where the aim is for ‘a person having control over another person, for the purpose of exploitation’ (un convention 2000: article 3(a)). exploitation is then defined expansively. the myriad instruments in existence which attempt to eliminate the exploitative domination of one person over another, and most recently the protocol to prevent, suppress and punish trafficking in persons, especially women and children, demonstrate a continual and collective effort to eradicate the bane of slavery, and the newer, more expansive definition of trafficking, from societies throughout the world. however, the current approach in this area is to treat the problem as transnational, in that countries should cooperate and deal with prosecutions on a national basis (un convention 2000: article 1) rather than to prosecute on an international basis. the instruments demonstrate a willingness to approach the problem collectively, but the concept of collective action through an existing single entity (cooper, 2011) has not fully been discussed by either the relevant organisations or the literature in this area. human trafficking is clearly a violation of both international human rights standards which apply to states and international criminal law, but despite this seemingly obvious gap, the case for extending the reach of the rome statute of the international criminal court (hereafter, the ‘rome statute) in the particularly critical area of human trafficking does not seem to have been made in any great detail as of yet. the international criminal court (hereafter, ‘icc’), under article five of the rome statute, has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’ (rome statute: article 5) and the same article creates a degree of priority for the prosecution of such violations. however it is arguable that the brutality which occurs when human beings are trafficked for the purposes of sexual exploitation by criminal gangs is of an equally egregious nature as those covered by the rome statute and yet does not fall within the remit of the icc. the scale of the problem is equally earth-shattering: the number of actual victims is thought to far outweigh the number of identified victims and globally, figures range from 800,000 (wyler and syskin, 2010: 3) to 2.5million (belser, 2005: 3) people who suffer as a result of being trafficked each year. the purpose of this work, therefore, is to determine the potential of extending the reach of the rome statute in this way. as part of the general prohibition on slavery in international law, (rome statute: article 7(1)(c), note) the rome statute has already characterised slavery as a crime against humanity, inclusive of human trafficking. however, this is only where slavery is conducted as part of a state policy (rome statute: article 7(2)(a)), effectively as a ‘widespread or systematic attack’ (rome statute: article 7(1)). gangs which operate human trafficking rings may not be tried before the icc. this limitation prevents the organisational policies of criminal gangs which conduct human trafficking from being the subject of prosecution at the icc. this paper will therefore seek to argue that human trafficking should be included within the jurisdiction of the icc as a core international crime rather than a crime against humanity, using the threshold requirements of the crime of genocide as a theoretical legal model, without hinging prosecution on the requirement that the crime human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 34 be ‘committed as part of a widespread or systematic attack.’ this does not imply that there is any analogy between the crimes, rather that the threshold test may also be useful in the context of human trafficking. the study is one of theory, exploring the black letter law in the rome statute and other relevant international instruments and uncovering the theory at the heart of these laws. this work will firstly explore the intention to include human trafficking as a crime within the jurisdiction of the court, examining the limitations incumbent on addressing the issue via the framework of crimes against humanity. the second issue will be to understand whether the idea of an ‘organizational policy’ within the rome statute should extend to the conduct of organised criminal gangs. the last part will explore the argued suitability of establishing human trafficking as a core crime, within the jurisdiction of the icc under article five and will use the theoretical model of genocide to determine the viability of this proposition. the aim is not to compare genocide and human trafficking, but rather to apply the court’s approach to determining jurisdiction over a charge of genocide to the idea of human trafficking. as a matter of limitation, the subject matter of this paper will comprise only acts of human trafficking which are unrelated to internal or international conflict, the main motivation in those cases being that of profit. ii. the intention to include human trafficking within the statute the focus of this part to the work is to examine the argued intention to include human trafficking as part of the rome statute, viewing it as a form of modern slavery. slavery has been characterised as a crime against humanity within the rome statute (rome statute: article 7(1)(c)), and human trafficking has been included as part of the definition of enslavement (rome statute: article 7(2)(c)). the potential of this effort will be examined, and the issues which arise in classifying human trafficking as a crime against humanity will be also explored. the icc under the rome statute has jurisdiction over ‘the most serious crimes of concern to the international community as a whole,’ (rome statute: preamble) giving it authority to try the individual accused of the crime (rome statute: article 1). the caveats to such jurisdiction include that the individual should be a national of a state party to the treaty (rome statute: article 12(2)(b)) or that the territory, including vessels and aircraft in which the crime was committed was that of a state party (rome statute: article 12(2)(a)) to the rome statute, or that the state in which the crime was committed permits the icc to exercise jurisdiction over the proceedings (rome statute: article 12(3)). the crimes themselves are specified in article five of the rome statute, which states that the icc shall have jurisdiction over acts of genocide, crimes against humanity, war crimes and aggression (rome statute: article 5(1)). at present, the definition of enslavement within the rome statute makes explicit reference to the crime of human trafficking (rome statute: article 7(2)(c)) but there is no further definition offered by either the statute itself or the elements of crimes (hereafter, ‘elements’). enslavement under the rome statute is defined as in the slavery convention under article 1, noting the importance of the idea of ‘ownership(rome statute: article 7(2)(c)). clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 35 however, this definition and the rome statute itself came into being prior to the trafficking protocol, which defines trafficking as, effectively, all practices in connection with and for the purposes of slavery, under article 3(a), criminalising: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” the idea of ownership is replaced by that of ‘control over another person, for the purposes of exploitation,’ arguably a more stringent standard than that of ownership or property rights. therefore the threshold adopted by the rome statute is automatically higher and would require a demonstration of the attributes of ownership before an individual could be tried on a charge of enslavement at the icc. the reliance on the prior definition of slavery does not necessarily reflect an intention to exclude trafficking as a discrete crime. rather the specific inclusion of the word ‘trafficking’ in the definition of enslavement arguably demonstrates that there was a clear intention to include the crime as it existed in international law at that time. the clear intention to include human trafficking can be seen in other crimes against humanity, which reflect different parts of the current definition. within article seven of the rome statute, there are two other crimes against humanity which reflect aspects of the united nations (hereafter, ‘un’) definition of human trafficking: ‘deportation and forcible transfer of population,’ (rome statute: article 7(1)(d)) which encompasses the ‘recruitment, transportation, transfer, harbouring or receipt or persons, by means of threat or the use of force or other forms of coercion’ (un convention 2000: protocol, article 3(a)) and ‘rape, sexual slavery and enforced prostitution’ (rome statute: article 7(1)(g)) which includes the exploitation (un convention 2000: protocol, article 3(a)) aspect to current human trafficking definition. deportation and forcible transfer is defined as being ‘the displacement of persons by expulsion’ (rome statute: article 7(1)(d)) from the area in which they are legally entitled to be, and with the inclusion of the phrase ‘other coercive acts’ (rome statute: article 7(1)(d)) the definition expands to fit the concept of human trafficking, in which victims have no free choice to comply with the demands of the traffickers. this is particularly relevant when human trafficking is viewed as ‘a particularly abusive form of migration’ (unhchr 2002: introduction) but it does require that the victims were lawfully present in the territory from which they were trafficked. given that the process has to begin somewhere, and that individuals are generally trafficked from their home countries, this requirement does not represent an insurmountable obstacle, but nonetheless may preclude the trafficking of some victims such as those who are stateless, or illegally working within another country. (obokata, 2005: 450) the inclusion of rape and sexual slavery as a crime against humanity also creates provision for instances in which the exploitation of the individual was for sexual human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 36 purposes or where the ‘ownership’ threshold was reached. reflecting briefly, it is clear that the rome statute has intended to include human trafficking within the jurisdiction of the icc. however its inclusion as a crime against humanity creates a limitation, rather than a threshold, of an underpinning policy element. this limitation is problematic for a diffuse problem such as human trafficking. equally, its attachment to the idea of ownership may hamper the incorporation of human trafficking offences into the framework of crimes against humanity, regardless of the direct relationship both have to the same fundamental requirement: ‘use’ of a person in the way that an object would typically be ‘used.’ be that as it may, the purposive interpretation of the rome statute is undermined when confronted with the requirement that a crime against humanity can only be termed as such ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (rome statute: article 7(1)) there are therefore three parts to this requirement which ought to receive attention. first, the idea of a ‘widespread or systematic attack,’ second, the concept of a ‘civilian population’ and third, ‘knowledge of the attack’ as part of the plan or policy. the ‘widespread or systematic’ aspect does not necessarily preclude human trafficking offences, particularly as committed by organised criminal gangs. the aim of prosecuting at the icc would be to remove those at the helm of such gangs and therefore the most organised are likely to have a system in place, which would then reflect the ‘systematic’ approach to the commission of the crime. as stated by jane kim, ‘it is unlikely that each trafficker traffics one north korean refugee woman and then ends their operation, never to traffic again’ (kim, 2011:24). similarly, the individual working within such a gang would be aware of the ‘organizational policy’ which he is carrying out. it appears something of a baseless argument for an accused to claim that he or she considered him or herself the only trafficker within a criminal gang, particularly where the heads of the gangs are being targeted for prosecution. thus the threshold that there ought to be ‘knowledge of the attack’ is not one which bears particular relevance to this type of crime. the lack of knowledge that an individual was trafficking individuals is difficult to understand: those in charge of criminal operations would most likely be aware of the consequences of their actions and thus the ‘knowledge’ element of the crime does not require further discussion for the purposes of this particular argument. the inclusion of the words ‘civilian population’ indicates from the outset that the target of the rome statute is those who act on behalf of a state. this is clarified by the elements of crimes, which note on page 5 that the attack must be carried out ‘pursuant to or in furtherance of a state or organizational policy to commit such attack … (which) requires that the state or organization actively promote or encourage such an attack against a civilian population.’ it has been noted that there was a perceived fear regarding the removal of the state or organizational policy requirement (halling, 2010) on the grounds that this would cover events which were both criminal and widespread, but did not necessarily reach the ‘most serious crimes of international concern’ threshold set by the rome statute. the inclusion of this threshold for crimes against humanity is relevant in the context of other crimes against humanity, and therefore it is clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 37 not argued that the ‘state or organizational policy’ requirement should be removed. unless it could be shown that this could extend to the work of organised criminal gangs, it would not be, at present, ‘pragmatic’ to create a distinct crime against humanity of human trafficking (cooper, 2011: 24) as the current requirement for state policy to be implemented would create a barrier for the prosecution of human trafficking offences. at this stage, it is apparent that human trafficking, as both a subspecies of slavery and in its own right, is a sufficiently grievous offence to merit inclusion in the rome statute, and therefore should not require the establishment of its own, separate court to try such offences (cooper, 2011: 13). however, the icc would only have jurisdiction where it could be proved that the commission of the offence occurred in relation to a ‘state or organizational’ policy. the freedom that would be gained from the release of such a requirement is shown in the international criminal tribunal for the former yugoslavia case of prosecutor v kunarac, in which the convicted individuals were held to have enslaved women for the purposes of servitude and sexual exploitation. the conditions and treatment suffered by the women was the focus of the prosecution and in particular, the duration of the enslavement was not held to be a relevant factor (kunarac, judgment: 121). however, working within the confines of the rome statute at present, what will be explored next is what is meant by an ‘organization’ or ‘organizational policy.’ at present, the problem with human trafficking relates to its commission by organised transnational criminal gangs, who fall outwith the ambit of human rights law, by not having any responsibilities in this area. the conflict here is therefore between the inclusion of trafficking and slavery offences within the rome statute, but with the added requirement that such crimes are committed on behalf of the state or a state-like entity. the next section therefore proposes to examine the possibility of an organised criminal gang being considered an ‘organization’ for the purposes of the rome statute, this being the only way in which human trafficking, as currently defined within the rome statute, could be tried at the icc. iii. including criminal gangs within the icc’s jurisdiction – organisations and complementarity at present, slavery can be considered a crime against humanity. however this presents an additional problem, given that the crime is most often committed by organised criminal gangs, rather than states. organised criminals, human traffickers specifically, are generally acting in an illicit fashion and therefore cannot be held to account in the same way as those acting on behalf of political or commercial organizations, or nation states might, as the consideration of the position of non-state actors is generally held to view these ‘participants’ (alston, 2000) in the international legal system as lawful, at least at inception. there is potential for the gangs themselves to be considered organisations, as such as the elements would require an organisational policy to be in place, which would also satisfy the ‘widespread or systematic’ criterion, the systematic element being of the greatest relevance. the viability of this argument would not be challenged by the bounds of the jurisdiction of the icc provided the individuals accused were natural persons (rome statute: article 25) and providing that either the crime occurred on the territory of a state party (rome statute: article human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 38 12(2)(a)) or concerned one of their nationals (rome statute: article 12(2)(b)). furthermore, there has been an assumption on the part of previous international criminal tribunals, in that these have assumed a ‘legal ability to enter into relations with non-state actors, not just through the conclusion of international agreements, but also by assuming the authority to request material and co-operation in general’ (d’aspremont, 2011: 198) furthermore, non-state actors are arguably bound by customary law, such as common article three of the geneva convention 1949 (milanovic, 2011: 40). it is submitted that the illicit nature of these organisations does not necessarily bar them from being considered organisations for the purposes of human trafficking offences as defined by the rome statute, and accordingly from satisfying the requirement of the existence of an ‘organizational policy.’ indeed, the icc represents the fruition of efforts to ‘implement the draft code of crimes against the peace and security of mankind’ (graefrath, 1990: 67) the code itself envisaged exercising jurisdiction over ‘any organization or group’ (draft code: article 18) in respect of crimes against humanity, and the rome statute fails to define what an organization might be, other than to require an organisation which is accused of an enforced disappearance be ‘political’ (rome statute: article 7(1)(i)) arguably creating a gap which the icc may wish to fill through determining its own competence (rome statute: article 19(1)) over organised criminal gangs. arguably, the recognition of such organisations would be sufficient to establish their ‘participation’ in the international legal order. under international law, there are a number of ways in which legal personality can be attributed. in this context, the recognition theory of legal personality (portmann, 2010: 81) is relevant; the example of the order of malta (portmann, 2010: 119) being considered a participant in the international legal order because other states recognise it as such. the current theories in the area are those of formalism and individualism (portmann, 2010: 248), the latter theory being of the greatest relevance to this argument. as organised criminal gangs must have human participants in order to carry out their activities, the recognition of their existence can be determined by examining their constituent parts. as their constituent parts participate in the international legal order, through violating international criminal law, the gangs themselves must participate and thereby the ‘organizational policy’ is evidenced. the idea behind this is to stretch the definition of such crimes and requirements excessively, but rather because there is much to support the idea that human trafficking should be considered a crime against humanity. in particular, ‘the crime may be excluded from statutes of limitations which forbid prosecution after a certain period of time, the perpetrators can be denied refugee status or asylum, there will be added obligations on states to cooperate, and in some jurisdictions the crime may come within a state’s national criminal jurisdiction whereas without the label ‘crime against humanity’ it might not’ (clapham, 2006: 106) this supports the contention that it may be useful to retain human trafficking as a crime against humanity. the inclusion of the requirement of a state or organizational policy, however construed, presents problems. this approach differs from that of the international criminal tribunal for the former yugoslavia, the statute of which had no reference to a clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 39 ‘state or organizational policy’ in its definition of crimes against humanity (rome statute: article 5) indeed the prosecution undertaken in kunarac would have been undermined by such a requirement, in which the convicted individuals were held to have enslaved women for the purposes of servitude and sexual exploitation. the conditions and treatment suffered by the women was the focus of the prosecution and in particular, the duration of the enslavement was not held to be a relevant factor (kunarac judgment: 121). it is relevant that the odiousness of the crime was held in this case to be important, rather than measuring the severity of the crime through cataloguing the number who had been subjected to such treatment. this may indicate that the inclusion of human trafficking as part of a crime against humanity is not appropriate for this particular crime. regardless of how it can be fitted in to the current scope of the rome statute, it may simply be that the most suitable place for the crime of human trafficking is as a discrete international crime. considering the difficulties that stretching the current definition of human trafficking, organizational policies and the jurisdiction of the icc in general pose, it must be asked as to why national governments cannot deal with the issue of human trafficking as a violation of domestic criminal law. clearly, the existence of the complementarity principle demonstrates that national level prosecutions must be exhausted prior to the jurisdiction of the icc being triggered, unless in circumstances where the state is unwilling or unable to prosecute. indeed, this concept is seen as one of the guiding principles of the icc, in that it does not have primary jurisdiction and indeed should only be used where the proceedings undertaken by states fail’ (sheng, 2006-2007: 415). one of the main issues with giving the icc jurisdiction in the area of human trafficking, and effectively in other areas, is that it ‘could be seen as a form of colonisation or establishing power’ (ryngaert, 2008: 226). however, this argument can neutered by brief reference to the seriousness of the crime itself, which indicates that it is appropriate that the icc have jurisdiction over it. a secondary argument is that of effective prosecution; frequently, it cannot be, and is not, always dealt with in an effective manner at state level. the existence of state-based controls to combat a transnational network is something which contributes to the lack of prosecutions in this area (shelley, 2011: 138) and where states are unable or unwilling to prosecute, the icc ought to assume jurisdiction for this crime. at present, this is difficult given the inclusion of a limited definition of the crime as a crime against humanity, which creates certain thresholds for the commission of a crime. this does not necessarily end impunity, as it might, in terms of prosecuting an individual accused of human trafficking under the icc at present. the comparison has naturally been made between human trafficking and piracy (cohen, 2010) both as forms of transnational criminal activity which require collective action by a number of jurisdictions through the application of universal jurisdiction. indeed, pirates were generally considered ‘enemies of all mankind’ on account of a lack of citizenship and centrally due to the enforcement difficulties of prosecuting a crime committed on the high seas (ryngaert, 2008: 109). reflecting on the rome statute, the crime of piracy is something of a deliberate omission and clearly did not fit into the human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 40 framework of crimes against humanity. it is generally not considered to be a core international crime (ryngaert, 2008: 109). similarly, it may further prevent impunity to acknowledge that this problem is such that each and every state has a right and a duty to exercise jurisdiction over this crime. it has been argued that, ‘if human trafficking is treated as a crime of universal concern, it will become part of a category of serious crimes viewed with such abhorrence that they warrant universal condemnation.’ (cohen, 2010: 234). universal jurisdiction is another, separate issue, but could be useful in preventing impunity through affording jurisdiction to any states which prosecute. the inclusion of human trafficking as a core international crime in the rome statute may hasten the adoption of universal jurisdiction over such a crime by indicating a consensus on the seriousness of such conduct. it would also afford human trafficking the necessary footing as one of the ‘most serious crimes of international concern.’ this would not necessarily require that every act of human trafficking would be covered, as the admissibility threshold would need to be reached by the acts themselves. thus complementarity would remain the ‘gatekeeper’ (sheng 2006-2007: 452) for icc prosecutions and investigations. iv. human trafficking as a core crime: using the ‘genocide’ threshold as a test the proposal herein is to address the gap created by the rome statute in the area of human trafficking by explicitly including it in the statute as a core international crime, in the form defined by the united nations. this would place human trafficking in article five, alongside genocide, aggression, war crimes and crimes against humanity in terms of the offences over which the court has jurisdiction. the way in which it is proposed that this ought to be done is to use the conceptual threshold requirements of the crime of genocide within the rome statute as a theoretical model. the current treatment of human trafficking is via the use of mutual criminal assistance agreements based on traditional jurisdictional principles, and thus these lack the quality of ‘core international crimes’, which create individual responsibility independently of domestic law. in the absence of domestic provisions, and will, there can be no trial for such crimes, unless provision is made to transform human trafficking into a core international crime, under article five of the rome statute. the inclusion of human trafficking in article five would avoid this issue. human trafficking would therefore be defined separately from enslavement in order to fully prosecute the commission of the crime at higher levels within the criminal organisations, as ‘an evolution of the scope of (the) notion (of crimes covered by the icc) is not impossible’ (coracini, 2008: 701-702). genocide within the rome statute may involve torture, killing, confinement in inhuman conditions, birth control or forcible transfer or deportation of a population. it does not necessarily mean that any of these crimes, in isolation, will be considered genocide, but rather that they must be committed with ‘specific intent.’ this is defined by the rome statute as being ‘intent to destroy, in whole or in part, a national, ethnical, clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 41 racial or religious group,’ using any of the crimes specified above. this idea is usually known as ‘special’ or ‘specific’ intent, in that the individual accused is concerned with the eradication of the targeted group and uses one of the methods above to achieve this aim. the reach of the crime of genocide, in respect of the ‘groups’ which are protected by the provision, will not be discussed here, as it is the idea of specific intent which is of most value to the discussion here. this idea of specific intent means that act of genocide does not need to be committed in pursuance of a ‘state or organizational policy’ but rather simply needs to be in pursuance of the ideology of eradicating that specific group. this means that there is no need to attribute responsibility to a specific state or organisation, nor does the attack need to be qualified as widespread or systematic (prosecutor v jelisic, 1995). as such, the concept of a ‘lone genocidaire’ has already been tackled by the jelisic case in international law, in that an individual may commit one of the crimes specified in article 6 and be convicted of genocide where the intent was present. the elements of crimes require the acts to take place as part of a ‘manifest pattern of similar conduct,’ specifically an ‘emerging pattern.’ effectively this means that the conduct should take place as part in a way that it can be identified as more than one incident in isolation, which creates a lower threshold than that of a ‘widespread and systematic attack.’ critically, it is the egregiousness of the underlying rationale for the attack which qualifies the crime for inclusion within the rome statute, without regard to the underlying policy for which it was committed nor to the number of victims claimed by the actors in questions. as such, this specific or special intent provides a useful theoretical model on which to base a proposed crime of human trafficking within the rome statute. the threshold which must be reached by the actor when committing a crime of genocide relates directly to the intent, rather than to the extent of the criminal behaviour. it is not considered that there should be any parallel drawn between the crime of genocide and human trafficking; rather the way in which genocide falls within the jurisdiction of the icc is relevant. it is therefore proposed that the inclusion of human trafficking within the rome statute should attract a similar threshold requirement as part of crimes which are committed by criminal gangs. trafficking by criminal gangs, the most likely perpetrators of such a crime, would necessarily fall outwith the definition of human trafficking as a crime against humanity, unless such gangs were acknowledged as state-like entities. one would hope this is unlikely, given the incongruous nature of such a conclusion with human rights responsibilities of other state and state-like entities. the possibility of including human trafficking as a core international exists as it has been acknowledged that, although ‘the international criminal court does not have jurisdiction over all international crimes and it is understood that definitions or lists of crimes that are within the jurisdiction of the icc are not meant to be exclusive or to limit in any way the customary definitions of crimes against humanity and war crimes or the reach more generally of customary international law (paust, 2010: 712). it is argued that human trafficking, as a branch of slavery, ought to be explicitly included as a core crime in international law, having regard to its heinousness and the difficulty of transnational and domestic mechanisms of prosecution. however it is not argued that human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 42 every act of human trafficking ought to fall within the jurisdiction of the rome statute. in viewing crimes against humanity as ‘widespread and systematic attacks’ based on state policy and genocide as a crime requiring the specific intent to eradicate a certain group of individuals, human trafficking should be considered a crime within the rome statute as defined within the trafficking protocol, but with the additional threshold that the accused intends to gain a profit in some way from obtaining or maintaining control over the victim of trafficking. this form of special intent may appear, initially, to be a low threshold for a core international crime but may assist in preventing impunity for such crimes. generally, the concept of profiting is at the heart of human trafficking as a crime, in that the individuals concerned are transferred or maintained in slavery to pay their ‘owners’ or ‘employers’ a certain amount of money. the most serious human trafficking crimes involve organised operations spanning across countries in a dense network, the extent of which the authorities are not able to properly track, a fact evident in the lack of precise statistics in this area. the desire of the icc not to tackle ‘lowhanging fruit’ and attribute responsibility to leaders and commanders, coupled with the requirement that the individuals would profit from such an undertaking, may provide the relevant threshold for human trafficking being considered a core international crime. it would also target criminal gangs without recognising such gangs as organisations proper, but rather disaggregate them into the individual criminals that they are. in doing so, the heads of the organisation could be prosecuted in the way that war criminals have been publicly indicted and exposed at the icc in recent years. such an inclusion within the rome statute would create the required bridge between international and transnational operations, elevating the crime itself to a level of seriousness which it does merit, being a modern form of slavery, but without requiring that the attack was widespread or systematic, or that it was undertaken by an organisation or state. rather it distinguishes the crime as something separate and deserving of unique attention in the statute, given the consequences that it has for both individual dignity and global stability. v. conclusion human trafficking, as a modern form of slavery, is undoubtedly an issue for international criminal justice. as the ‘centrepiece’ for a ‘fair and effective system’ of international criminal justice (sunga, 1998: 399) the rome statute should extend its jurisdiction to the crime of human trafficking as a crime against humanity. the existence of a ‘silent war’ (kim, 2011: 32) in which traffickers and victims are difficult to trace leads to the conclusion that the exposure which elevation to the jurisdiction of the icc would offer should be undertaken to promote the idea that the offence is as serious as any of the serious crimes noted in the rome statute. however as a crime it should not be tucked away with the other crimes against humanity, given the current constraints of the definition, which may be appropriate in terms of other named offences, such as torture. rather it is proposed that the icc declare jurisdiction over human trafficking as a discrete crime under the rome statute, following the idea of placing individual restrictions on the prosecution of the crime at the icc, in the same way as the crime of genocide has been uniquely defined. clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 43 including human trafficking as a crime against humanity would entail the satisfaction of the ‘widespread and systematic attack’ requirement, as well as the commission of the attack as part of a ‘state or organizational policy.’ the justification for the inclusion of the first requirement, which would prevent a future kunarac et al. being tried under the rome statute, is that the icc has been created to prevent future ‘unimaginable atrocities’ (schabas, 2012: 29) and such a function would be undermined by the application of the law therein to ‘ordinary’ attacks, even where these took place on a large scale. however, the problem with retaining this requirement is that human trafficking, in the context of organised crime, cannot presently be prosecuted at the icc as the crimes committed by organised criminal gangs are not done in pursuance of a ‘state or organizational policy.’ coupled with the fact that the international treaties on trafficking are simply ‘mutual criminal assistance agreements based on traditional jurisdictional principles’ (tavakoli, 2002: 79), it is clear that the icc is not even being considered as a useful way in which to limit the powers of highly organised criminal gangs who are committing unimaginable atrocities in an industrialised fashion. the second requirement, that of an organisational or state policy being the underlying rationale for the attack, may create issues in that criminal gangs, the main perpetrators of human trafficking offences, would need to be considered ‘organizations’ for the purposes of the statute. it is not disputed that the policies may be organizational, but it is rejected that they should receive acceptance in the international legal order. the criminal gangs should be considered as separate criminal individuals, with those at the helm of the organisations being prosecuted for deriving profit from the human suffering they orchestrate through trafficking individuals. ‘the icc is not and should not be regarded as a panacea’ (ronen, 2010: 27) but it should recognise the crime of human trafficking as one which is of ‘serious concern to the international community as a whole’, in the same vein as the other crimes within its jurisdiction the most pragmatic way of achieving this recognition would be to include human trafficking as a discrete crime within the rome statute within article five. references acquaviva, g., 2011. non-state actors from the perspective international criminal tribunals. in j. d’aspremont, ed., 2011. participants in the international legal system: multiple perspectives on non-state actors in international law, abingdon: routledge. african charter on human and peoples rights 1981 (adopted 27 june 1981, entered into force 21 october 1986) 2 ilm 58 (1982) alston p., 2000. human rights and non-state actors, oxford: oxford university press. american convention on human rights (signed 22 november 1969, entered into force 18 july 1978) oasts 36 belser, p., 2005. forced labour and human trafficking: estimating the profits, cornell university ilr school, 3-1-2005. available at human trafficking and the rome statute of the international criminal court the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 44 http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1016&context=forced labor [accessed 19.05.14] broomhall, b., 2004. international justice and the international criminal court, oxford: oxford university press. clapham, a., 2006. human rights obligations of non-state actors, oxford: oxford university press. cohen, m., 2010. the analogy between piracy and human trafficking: a theoretical framework for the application of universal jurisdiction, buffalo human rights law review, 16, pp.201-235 convention for the suppression of the traffic in persons and of the exploitation of the prostitution of others 1949 (signed on 21 march 1950, entered into force 25 july 1951) 96 unts 271 coracini, a. r., 2008. amended most serious crimes: a new category of core crimes within the jurisdiction but out of the reach of the international criminal court? leiden journal of international law, 21(3), pp.699-718 draft code of crimes against the peace and security of mankind 2 ybil1996 elements of crimes, icc-asp/1/3 (part ii – b) european convention on human rights (adopted on 4 november 1950, entered into force 3 september 1953) cets no. 005 green, j.c., 2011. a proposal leading to an international court to combat trafficking in human beings, third annual interdisciplinary conference on human trafficking, paper 13. available at http://digitalcommons.unl.edu/humtraffconf3/13 [accessed 19.05.14] graefrath, b., 1990. universal criminal jurisdiction and an international criminal court, european journal of international law, 1, pp.67-88 halling, m., 2010. push the envelope – watch it bend: removing the policy requirement and extending crimes against humanity, leiden journal of international law, 23(4), pp.824-845 international agreement of 18 may 1904 for the suppression of the white slave traffic (signed 18 may 1904, entered into force 18 july 1905) 1 lnts 83 international convention of 4 may 1910 for the suppression of the white slave traffic (signed 4 may 1910, entered into force 21 june 1951) 211 consol. t.s. 45 international covenant on civil and political rights (signed 16 december 1966, entered into force 23 march 1976) 999 unts 171 international convention for the suppression of the traffic in women and children (signed 30 september 1921, entered into force 15 june 1922) 9 lnts 415 international convention for the suppression of the traffic in women of full age 1933 (signed 11 october 1933, entered into force 24 august 1934) 150 unts 431 kim, j., 2011. prosecuting human trafficking as a crime against humanity under the rome statute, gender and sexuality online, 02/23. available at http://blogs.law.columbia.edu/gslonline/2011/02/23/prosecuting-humantrafficking-as-a-crime-against-humanity-under-the-rome-statute/ [accessed 19.05.14] milanovic, m., 2011. is the rome statute binding on individuals? journal of international criminal justice, 9(1), pp.25-52 http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1016&context=forcedlabor http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1016&context=forcedlabor http://digitalcommons.unl.edu/humtraffconf3/13 http://blogs.law.columbia.edu/gslonline/2011/02/23/prosecuting-human-trafficking-as-a-crime-against-humanity-under-the-rome-statute/ http://blogs.law.columbia.edu/gslonline/2011/02/23/prosecuting-human-trafficking-as-a-crime-against-humanity-under-the-rome-statute/ clare frances moran the age of human rights journal, 3 (december 2014) pp. 32-45 issn: 2340-9592 45 obokata, t., 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unimaginable atrocities: justice, politics, and the war crimes tribunals, oxford: oxford university press. shelley, l., 2011. international trafficking. in s. okubo, and l. shelley, 2011. human security, transnational crime and human trafficking: asian and western perspectives, abingdon: routledge. sheng, a., 2006-7. analysing complementarity, international law students association journal of international and comparative law, 13, pp.413-452 slavery convention 1926 (signed 25 september 1926, entered into force 9 march 1927) 60 l.n.t.s. 254 sunga, l.s., 1998. the crimes within the jurisdiction of the international criminal court, european journal of crime, criminal law and criminal justice, 6, pp.377-399 tavakoli, n., 2002. a crime that offends the conscience of humanity: a proposal to reclassify trafficking in women as an international crime, international criminal law review, 9, pp.77-98 united nations high commissioner for human rights recommended principles and guidelines on human rights and human trafficking un doc e/2002/68/add.1 united nations office on drugs and crime global report on trafficking in persons february 2009 united nations convention against organised crime (signed on 15 november 2000, entered into force 29 september 2003) 2225 unts 209 unga resolution 808 22 february 1993 un doc s/res/808 (1993) wyler, l. and siskin, a., 2010. trafficking in persons: u.s. policy and issues for congress, congressional report service for congress, 7-5700 information seminar on the european charter for regional or minority languages the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 1 cultural diversities and human rights: history, minorities, pluralization eduardo j. ruiz vieytez 1 abstract: cultural diversity plays today a prominent role in the updating and developing of human rights. past developments in the protection of rights have essentially forgotten the democratic management of cultural and identity-based diversity. states have stifled the main developments of the rights and constrained them to partial views in favour of the majority or dominant groups in each country. the current context of regional progressive integration and social diversification within each state agrees on the need to address the adequacy of systems for the protection of rights from different strategies to the context of multiculturalism. against the process of "nationalization of rights" it is necessary to adopt a strategy for pluralization. on the one hand, the concept of minority has to be given its corresponding importance in both international and domestic law. on the other hand, different kind of policies and legal instruments for the accommodation of diversity can be identified and used to foster this necessary process of pluralization. keywords: cultural diversity, human rights, pluralization, minorities, accommodation, multiculturalism, discrimination. summary: i. introduction; ii. legal protection of diversity within an historical perspective; ii.1.diversity in the historical origins of human rights; ii.2.europe one hundred years ago and the decline of diversity; ii.3.the non-european momentum and the fall of the berlin wall; iii. cultural diversity and human rights: evolution and current status; iii.1.nationalization of rights and the need for democratic pluralization; iii.2.institutional and doctrinal approaches to accommodate minorities; iv. proposals and instruments for pluralization; iv.1.techniques for constitutional accommodation of diversity; iv.2.instruments for pluralization in the implementation of rights; iv.2.1.re-examination of the concept of citizenship; iv.2.2.the rights of minorities; iv.2.3.multicultural clauses; iv.4.2.4.indirect discrimination; iv.4.2.5.reasonable accommodation; v. conclusion; vi. references. i. introduction this article analyzes the crucial position that cultural diversity holds at the present time in respect of updating and developing human rights. the article supports the idea that european developments in the protection of rights has essentially forgotten the democratic management of cultural and identity-based diversity in what we refer to as the nationalization of rights. in spite of this, it is the experience of diversity which is, to a large extent, found in the origin of human rights. however, the political form of the state has stifled the main developments of the rights and has constrained them to partial views in favour of the majority or dominant groups in each country. the current context of regional progressive integration and social diversification within each state agrees on 1 human rights institute, university of deusto, bilbao, spain (ejruiz@deusto.es). cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 2 the need to address the adequacy of systems for the protection of rights from different strategies to the context of multiculturalism. in order to address this issue, i will divide the argument into three consecutive steps. in the first, i will try to explain how the historical and political development of our continent has conditioned the interpretation of human rights and how the latter have been able to address the cultural differences of people. in a subsequent step, i will call this process "nationalization of rights" and defend the need, in view of the foregoing, to adopt a strategy for pluralization. from a legal perspective, we should point out the difficulty in implementing the concept of minority in international or domestic law, and the state of play thereof, including references to the most prominent european doctrine in this area. finally, in the last section, i will endeavour to systematize different legal instruments and techniques that can be applied to advance the process of pluralization alluded to previously. the article is complemented with a final section containing conclusions and appropriate references. ii. legal protection of diversity within an historical perspective ii.1. diversity in the historical origins of human rights if we take a look at european history from the perspective of the formation and evolution of collective identities, we conclude that language and religion were the two major factors in those processes. indeed, in all traditional european groups that have demanded some public recognition one of the two elements that help to distinguish it is present. both concepts are complex in their definition and the role they play in identifying collective groups. there are many difficulties in terms of law and policy when regulating or planning elements related to collective identity, such as languages (with their own variations, spellings, alphabets, etc.) or religions (with its syncretism, ritual or organizational differences, new spiritual movements, etc.). but the fact is that language and religion are also the most commonly cited elements in the legal definitions of the concept of minority, both in international and domestic courts (ruiz vieytez 2006, 284-288). the truth is that neither in terms of religion or language is diversity a novel characteristic for europe. both facets of identity have been intertwined in their role in the political and policy debates throughout the modern history of our continent, but european societies have always been pluralistic from both perspectives. more than a hundred languages have been and are spoken in europe, and historically many prechristian, pagan, animist, christian, jewish, muslim and buddhist religions and cults were practised. all this supported the configuration of collective identities based on culture, which have been labelled according to options such as ethnic groups, nations, peoples, or more generically, minorities. if we go back to the beginnings of the modern era, religion was by far the largest and most problematic factor in respect of identity in europe at that time. and it is precisely in that context when ideas of tolerance and coexistence emerge that form the eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 3 ideological basis of human rights. it was the protestant reformation that triggered the mechanisms necessary for us to develop ideas that point to the current human rights. suffice it to mention events such as the enactment of the edicts of nantes in 1589 (wanegffelen 1998). and if we consider the reformation wall that stands in the park des bastions in geneva, we would see the close connection between the spread of protestantism and the emergence of the great liberal, constitutional traditions of the west (rey martínez 2003; ruiz vieytez 2003). but the reformation, on the other hand, would at the same time serve to gradually strengthen the state and to proclaim its future nationalization. this has to do with the impetus it gave to the vernacular languages and the gradual consolidation of dominant national or state languages, whose symbolic starting point is the ordinances of villers-coterets (1539) and its culmination in the speech by the committee on public safety to the convention on regional languages (1794). over time, national identities based primarily on linguistic criteria were shifting the importance of religious differences in the public debate. the nineteenth century extolled national and linguistic differences and a commitment was made to combat diversity within each state, much more the in linguistic field than in the religious field. the growth of nationalism led to a way of organizing cultural diversity in europe that has profoundly marked our recent evolution. but this has not prevented the recent population movements and the transformations in the world of communications from regaining the role of identity from the religious differences at the present time. religion has not disappeared with the end of modernity, but on the contrary, it has made a stong comeback into the public debate (lópez camps 2007, 181), albeit via the intertwined phenomena of believing without belonging (davie 2000) and belonging without believing (hervieu-léger 2005). in any case, we can say that diversity is at the source of human rights. the transformation that led to the reformation was decisive in this regard, generating a novel experience of otherness. while any form of religious dissent was simply suppressed by force in some kingdoms, in other countries, such as england or france, the existence of religiously different sectors of the majority of the population would entail significant political and social conflicts that would condition its political development. actually, neither the catholic nor the protestant reformation advanced ideas that would support a specific political position for protecting minorities or that would legitimize resistance to temporal authority by dissident groups or communities. however, the expansion of calvinism to countries where it held a minority position or was subjected to a catholic secular power (scotland, holland, hungary or france) led to theories being developed that justified resistance. additionally, although religious dissent was usually combated with repression and assimilation, the impossibility that occurred in certain groups of submitting to or eliminating such minorities led to the idea of religious tolerance being adopted, and consequently the protection of religious minorities, as a positive value. within this framework, the states would start to accept the imposition of the mandate to respect beliefs and the freedom to worship for certain minority communities. this resulted in legal standards by which one or more powers internationally assumed cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 4 the commitment to protect or tolerate the religious practices of certain communities. sometimes this was motivated by a balance of various forces that were difficult to overcome, as occurred with the 1648 peace of westphalia, which legally enshrined the recognition of religious plurality in most parts of the empire. in other cases, the victorious powers wanted to ensure stability with the annexation of a territory that included religious minorities, linking an alleged halo of humanity to a strategic interest of gaining the loyalty of these new populations, bordering populations on most occasions. the first example in this regard is provided by the 1660 treaty of oliva, by which sweden was obliged to respect catholic inhabitants in livonia, which was included to the detriment of poland. similar clauses can be found in the treaties of nijmegen (1678), ryswick (1697), carlowitz (1699), breslau (1742) and kütschükkainardschi (1774). a breakthrough was made in 1815 when the congress of vienna was passed, which first established an international system of protection for national minorities and extending protection outside the exclusively religious area. along with the continued protection towards religious minorities, the nineteenth century would see an increase in the references to minority peoples or nations in international treaties. these include the peace of adrianople (1829), the treaties of london (1830 and 1864), the peace of paris (1856) and the treaty of berlin (1878). in any case, it is the protection of the different minority groups, those that cannot access the power established by procedure or by number, which gives rise to the initial progress in the international framework for the protection of all persons. add to this the emergence at international level of the so-called "minimum international standard", derived ultimately from unequal international relations, but also aimed at the protection of the different individuals in jurisdictions in which they are unfamiliar. we can thereby establish when the idea of rights outside the boundaries of a given policy framework is agreed on, it is the otherness or identity-based difference that serves as the basis for its progressive emergence 2 . ii.2. europe one hundred years ago and the decline of diversity it is worth taking a look at the cultural and identity-based composition of europe one hundred years ago when the tragic event that was the first world war was just breaking out 3 . at that time, europe revealed a complex patchwork of diversity in many 2 on the historical evolution of legal protection of minorities, vid.: fernandez liesa, c.r. (2001), “la protección de las minorías en el derecho internacional general. análisis de la evolución y del estatuto jurídico internacional”, in mariño menendez, f., fernández liesa, c.r. and diaz barrado, c.m., la protección internacional de las minorías, ministerio de trabajo y asuntos sociales, madrid, pp. 51-217; jackson-preece j. (1997), “minority rights in europe: from westphalia to helsinki”, review of international studies, no. 23-1, pp. 75-92; petschen verdaguer, s. (1990), las minorías lingüísticas de europa occidental: documentos (1492-1989), parlamento vasco, vitoria-gasteiz, pp. 37-87; ruiz vieytez, e. (1998), la protección jurídica de las minorías en la historia europea, universidad de deusto, bilbao; ruiz vieytez, e. (1999), the history of legal protection of minorities in europe (xviith xxth centuries), university of derby, derby. 3 to contextualize this period from an identity and political perspective: cornwall, m. (ed.)(2002), the last years of austria-hungary, a multinational experiment in early twentieth-century europe, university of exeter press, exeter; gaillard, j.m. and rowley, a. (2000), historia de un eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 5 parts of the continent. in the western half of europe, the nation states had generally been established for longer (except germany and italy), but were home to a number of linguistic and culturally distinct communities. for example, the percentages of state population that did not have the official language as their first language were relatively significant in several of these countries, including spain, france or the uk. by contrast, in central and eastern europe, most of the region was still under the russian, austrohungarian and ottoman empires, real multinational, pluri-linguistic and pluri-religious (and therefore pluri-ethnic) groups. hence, just 100 years ago, and unlike what happens today, most europeans lived within a context of cultural diversity. religions, cultures and languages coexisted, with varying degrees of harmony, in the major historical regions of central and eastern europe such as banat, baranya, bosnia, bucovina, crimea, istria, macedonia, thrace and transylvania, as well as in many cities which had different names depending on the language of the group that named it such as sarajevo, lemberg (lviv), klagenfurt (celovec), bratislava (posozny/pressburg), temesvar (timisoara), krainburg (kranj), adrianople (edirne), zadar (zara), bitola (monastir), spalato (split), thessaloniki (salonika) or istanbul (constantinople), including others. this diversity also shifted to the cultural landscape of then europe. there were many theatres, colleges, lyceums, universities and academies of various minority communities in cities where they were not in the majority or in regions far from their historical settlement areas. however, and since then, the nation state has emerged as a powerful agent of national homogenization of its inhabitants. western european countries have, in general terms, been very effective in achieving the progressive linguistic and cultural assimilation of their non-native populations. sometimes they have used for this repressive policies, but this has not been the dominant trend. express support was enough for a specific "national" language to achieve, either directly or indirectly, a loss of social status and the resulting decline of other languages, which are regarded as "regional" or "local" languages. the generalization of the military service, the call to arms in the two world wars, the universalization of the education system and the spread of mass media have been extremely important factors in this process. the data in this respect is compelling and there is virtually no single country in europe that is not much more homogeneous in terms of culture and identity than it was a hundred years ago (magosci 1995, 130-148), which proves the commitment and effectiveness towards standardization of the european nation states. the two world wars provided an opportunity to address the diversity on the continent from different parameters. and indeed, subsequent treaties to each conflict reflected opposing strategies for managing european diversity, but with a very similar continente. europa desde 1850, alianza editorial, madrid; michel, b. (1995), nations et nationalisme en europe centrale, xixe-xxe siècle, aubier, paris; santamaria, y. and wache, b. (1996), du printemps des peuples à la societé des nations. nations, nationalités et nationalismes en europe 18501920, la découverte, paris; segard, j.f. and vial, e. (1996), nations, nationalismes, nationalités en europe de 1850 à 1920, ellipses, paris; sellier, a. and sellier, j. (1995), atlas des peuples d´europe occidentale, la découverte, paris; sellier, a. and sellier, j. (1995), atlas de los pueblos de europa central, acento editorial, madrid; winks, r. and neuberger, j. (2005), europe and the making of modernity. 1815-1914, oxford university press, oxford-nueva york. cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 6 underlying objective. the end of the first world war brought about the collapse of multi-ethnic empires in central europe, and the creation or enlargement of national states, in a western style. the principle that gave rise to the 1919-1920 paris peace treaties was that which redrew the boundaries of most of europe in a bid to adapt them to the ethnic divisions, while attaching certain adjustments for the victorious countries. this resulted in the virtual elimination of all political entities inspired by pluralism, being replaced by nation-oriented states with clear identity-based majorities. in addition to this, an innovative and interesting system of minority protection emerged in a good part of europe under the league of nations 4 , which could be regarded as the predecessor of the current universal system for the protection of human rights. this system worked reasonably well until the tensions arising from frustrated social or agrarian reforms in some countries, the 1929 economic crisis and the access of the nazis to power in germany thwarted its potential. nonetheless, the contempt it deserved in the later legal doctrine is unjust and the system showed some vitality during the twenties, especially considering the political and experimental context in which it was implemented. after world war ii, the principle that would pave the way for the peace treaties would be radically different. the victorious countries did not seek to shift the borders to make them closer to the ethnic reality. with the exception of the "transfer" of poland about 400 kilometers to the west at the expense of germany, the borders of the 1930s remained intact. what the victorious powers sought or allowed within that context was not the movement of boundaries on maps but the movement of people. nearly twenty million people were displaced from their homes, most of them in central and eastern europe, with germans, poles, slovaks and ukrainians being those primarily involved. this mass movement of population, together with the holocaust caused by the nazis, the soviets and the war itself, in the end, led to the same result, the homogenization of the resulting nation states. ultimately, the aim of the peace treaties in the 1920s and 1940s was the same, seeking to reduce the presence of minorities, or in other words, considering diversity as a problem to be avoided for better management the resulting national societies. it was therefore clear that diversity was neither nor is understood in europe as a positive event but rather as an obstacle to be avoided. consistent with this, the process of progressive national standardization has been successful in almost all european countries in the past hundred years. this statement only wanes in some countries whose independence is recent (mainly estonia, latvia, moldova and bosnia-herzegovina) and who have been subjected to processes of 4 on the league of nations and minorities, vid.: ruiz vieytez, e. (2010), “derechos humanos y minorías nacionales en el siglo xx”, derechos y libertades, no. 23, pp. 35-72; azcarate, p. (1998), minorías nacionales y derechos humanos, universidad carlos iii, congreso de los diputados, madrid; bautista jimenez, j.m. (2008), “la vinculación entre la protección de algunos derechos fundamentales y la seguridad y paz internacionales: el antecedente de la sociedad de naciones”, en revista electrónica de estudios internacionales, no. 16, pp. 1-35; nuñez seixas, x.m. (1998), movimientos nacionalistas en europa. siglo xx, editorial síntesis, madrid; nuñez seixas, x.m. (2001), entre ginebra y berlín. la cuestión de las minorías nacionales y la política internacional en europa: 1914-1939, akal, madrid. eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 7 homogenization in another area (notably, the soviet union or yugoslavia). however, following their independence they revert the process in favour of the new dominant identity, such is the strength of the independent state as a factor for legitimacy in said process. therefore, at present it is very difficult to find national, linguistic or religious minorities that are completely consistent on the european map, or to detect regions or cities that have maintained this plurality of cultures that once characterized them. in short, state national identities exist and tend to permanently expand over the other identities, thanks to the significant support given by the state system. ii.3.the non-european momentum and the fall of the berlin wall while diversity in europe was perceived in terms of being a problem, the experience of some former british colonies would take a turn in direction from the sixties, mainly for reasons of geopolitical necessity. indeed, from that time some countries reviewed old assimilationist systems, thereby opening the way to the reflexion that was the basis of the multiculturalist options. this step forward is made from the progressive thrust from the so-called third world and, essentially, the experience of canada and australia. from the second post-war period, canada would be forced to adopt the mindset that immigration should be diversified both for ethical and strategic reasons. from the 1960s, immigration was predominantly non-european and the old policies of the white canada faded into oblivion. the origins of the multicultural option in canada date back to the work of the commission on bilingualism and biculturalism, a body created to review the balance between the two dominant cultural choices in canadian society. social reality was transformed in the seventies as a result of the progressive diversification of immigration and more active demands in the attitude of indigenous peoples led to the restructuring of the name of the commission. significantly, the reference to bilingualism was maintained, while the expression multiculturalism was adopted. namely, a growing, multicultural diversity was recognized, but a reference to linguistic duality was maintained, and thereby showing signs that a certain balance was being sought between the protection of the dominant identities and those that were not. in any case, the government first proclaimed multiculturalism as an official policy in 1971, being canada the first country to formally adopt this option. multiculturalism in canada has gone through different periods since 1971 (elliot and fleras 1992, 465-479). during its first decade in existence, initiatives were primarily developed in the area of cultural promotion, encouraging participation, cultural exchange, and teaching of the official languages. this official policy would become more firmly established in the eighties, when it would be further developed in the fight against discrimination in employment and economic areas, and major policy developments materialized. indeed, the canadian charter of rights and freedoms 5 5 canadian charter of rights and freedoms, part i of the constitution act, 1982, being schedule b to the canada act 1982 (u.k.). cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 8 would be adopted in 1982, including section 27, which we shall refer to hereinbelow. similarly, the law on multiculturalism was adopted in 1988 6 . meanwhile, in australia, support for the “white policy” in the 1940s was still transversal (jupp 2004, 373). but world war ii generated a serious vulnerability which led to the belief that it was necessary to promote the country's population. during the immediate post-war period the motto was "populate or perish" and chifley's labour government launched an immigration programme in order to achieve substantial population growth, which led to commonwealth department of immigration being set up. as a result, the australian population would increase by about five million between 1947 and 1970. the boundaries of whiteness and assimilation would gradually blur and expand simultaneously (carter 2006, 321), although the dominant policy on reception remained deeply assimilationist (elder 2005, 110). the australian citizenship act was passed in 1948, the first rule of law relating to nationality, surpassing the traditional scheme of british subjects, and included aboriginal australians as citizens, despite some discriminatory constitutional references to these would not be phased out until the 1967 constitutional referendum. on the other hand, the slow but progressive cultural pluralization of society led to the creation of ethnic and social networks in the sixties. this was prior to the multicultural policy being passed by the government, because in all cases it was the cause, but not the effect of the former (jupp 2002, 27-29). the progressive dismantling of the white australia policy was materialized during the 1960s and 1970s (tavan, 2005, 235-239). if until 1960, all immigration policy was accompanied by the idea of assimilation (carter 2006, 335), it was in 1973 that the whitlam labour government announced that australia's immigration policy would no longer discriminate against people because of their race, colour or national origin. consequently, the racial discrimination act was passed in 1975. the idea of multiculturalism was supported enthusiastically during the liberal fraser government (1975-1983) and the successive hawke and keating labour governments (1983-96), the consensus generated in this regard raised being remarkable during its first 10 or 15 years (carter 2006, 343). in australia, multiculturalism was understood as being a policy for welcoming and settling immigrants. the idea was established that while everyone was expected to be loyal citizens, this did not amount to everyone having to speak the same language, practice the same religion, eat the same food or have the same type of family (elder 2005 111). australian multiculturalism was based more on economic criteria rather than legal criteria as it was in canada, and took some time to become officially defined until by government until the emergence of so-called galbally report in 1978, under the fraser government. the basic principles thereof, reiterated in subsequent agendas include the right to enjoy one's own culture; equal access to public resources and the need to develop different skills for the overall economic benefit (jupp 2004, 382), namely, cultural identity, social justice and economic efficiency (smith 2001, 235). but unlike the canadian experience, australian multiculturalism has not been extended to 6 canadian multiculturalism act, r.s. 1985, c. 24 (4 th supp.), passed on 21 july 1988. eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 9 the legal level and has not resulted in any specific regulation. nonetheless, this policy culminated in a series of social or institutional initiatives, including the establishment of a comprehensive system of interpreting for any official public services since 1973 and the creation of the special broadcasting service in 1980, a public media entity broadcasting in other languages and focusing on minorities. on the other hand, a large private network of publicly funded education in australia also helps these communities to pass on their own languages, religions and cultures. in any case, the multiculturalism that emerged strongly in the seventies does not correspond to a single discourse or set of policies, but rather the term is used to refer to a diverse set of proposals or actions. nonetheless, we can consider proposed legislation and policy that pursues an inclusive purpose by recognising and protecting the cultural differences in society, as well as the relationships generated between them. ultimately, understanding multiculturalism in its broadest political sense implies a set of programmes and measures aimed at managing cultural diversity in terms of integration and equality. multicultural policies were met in europe with varying degrees of acceptance. countries such as the united kingdom and the netherlands applied tighter policies, but this was not the case in germany or france. however, the seventies in europe also coincided with a certain revival of regional or local identities and a reappraisal of internal diversity. however, a real political turning point was to be the fall of the berlin wall in 1989, which would generate a sense of alarm in the main european governments due to the sudden reappearance of conflicts and ethnic tensions in various parts of central and eastern europe. this would lead to the first half of the nineties addressing a real boom in european law for minorities, with the approval of a number of bilateral treaties, the 1992 european charter for regional or minority languages, the 1995 framework convention for the protection of national minorities, the establishment of the osce high commissioner on national minorities in 1992, the adoption by the general assembly of the united nations of the declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities in 1992, or the general comment adopted by the human rights committee on article 27 of the international covenant on civil and political rights concerning the rights of persons belonging to minorities in 1993. the increase of population movements in recent decades has fuelled the debate on the diversity management, in particular in those countries with the highest immigration, in which the second and third generations raise questions in terms of identity that were not raised by their predecessors. this seems to be particularly true in the case of religious identities, as religious differences did not surface strongly in the early years of extra-european immigration, yet the debates on religious accommodation cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 10 are now part of the political agenda, most notably in relation to the presence of islam in european societies that have a christian tradition 7 . today the debate on diversity management is taking place within the framework of a europe divided into state societies with a clearly dominant national, linguistic or religious identity (except in the rare cases in switzerland, belgium and bosniaherzegovina), which in turn have created supranational structures on the protection of rights which see european diversity primarily in terms of the state. using this framework, which is much more homogeneous than the framework from a hundred years ago, the debates on the protection of minorities or traditional groups converge with very unequal demands and strengths, accommodating new identities without a historical tradition on the continent, but comprising a large number of its citizens. in addition, the process of secularization and certain technological advances that are affecting cultural identities built on languages, religions or other cultural elements. the debate on the interpretation of rights in increasingly pluralistic societies, but little historical experience of internal diversity, is what characterizes the regulatory, institutional and doctrinal developments that have taken place in the area in question. the consequence of all this has been a nationalization of rights which need to be redirected towards a process of pluralization. iii. cultural diversity and human rights: evolution and current status iii.1. nationalization of rights and the need for democratic pluralization from the study of european developments in the last hundred years, we can conclude that the main enemy of cultural diversity has been the nation-state, which still clearly makes up the majority of states in europe today. there is no doubt that the state has been a powerful factor in identity homogenization, or that we live still anchored in state-based identity systems. any european state which has enjoyed a relatively long period of independence for many decades is now much more linguistically, religiously and nationally homogenous than a century ago, such that the map of collective identities in europe is now adapted to the political boundaries of states which never happened before (magosci 1995, 130-148). this is relevant because the cultural elements that make the collective identities at the present time affect or determine the ownership and enjoyment of human rights. this means diversity becomes an extremely important factor in the theory and practice of human rights, particularly to the extent that we follow political and legal systems on personally and spatially defined states. we are assuming that we cannot build a framework that respects human rights (in other words, a democratic framework) without considering the cultural identity of the individuals and groups, especially if they are a minority in their respective policy areas 8 . 7 on this topic, see resolution 1743 (2010) and recommendation 1927 (2010), adopted by unanimity by the parliamentary assembly of the council of europe on 23 june 2010, under the title “islam, islamism and islamophobia in europe”. 8 article 4 of the unesco declaration on cultural diversity, of 3 march 2001. eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 11 indeed, the way to understand what human rights are or how they should be exercised on many occasions has to do with different cultural visions whose presence is necessary to first recognize and then include in an open and engaged dialogue. in turn, some elements that make up cultural identities (for example, religions, languages and lifestyles) can, in turn, be contained in the exercise of rights. diversity thus generates current and relevant public debates such as the debate on the possibility of wearing symbols or religiously inspired clothes in public and private spaces, the use of certain languages when providing public services, the appropriateness of certain materials in education and training curricula, the structure of the compulsory educational system, the interactions between genders in certain areas, the occupancy of public space for cultural, ethnic or religious expressions, the desirability of providing autonomy or public funding to culture-based entities, the scheduling of public holidays, the display of collective symbols, the arrangement of spaces for culturally based practices, etc. all this confirms that relegating cultural events to the purely private sphere is neither advisable or feasible from the point of view of public administration, as languages, religions or ethnic or national belongings are relevant in both the public and private domain, which leads to the need to make decisions about the way in which the public system must act in order to address the demands put forward or the potential conflicts of interest. in the historical evolution we have outlined in the previous paragraph, the paradigm of managing cultural diversity has changed considerably. nonetheless, the change in the discourse does not necessarily mean a real change in the policies or beliefs that western societies have when faced with this phenomenon and the challenge posed by what such a change means for human rights. hence, it is worth pointing out that nowadays there is (unlike what happened up until the 1970s) a politically correct discourse that values diversity as a good thing in itself. according to this language, cultural diversity (and therefore linguistic, religious, ethnic or national diversity) equates to wealth, and constitutes a heritage that should be adhered to, preserved and promoted. it would not be difficult to find many political documents such as governmental plans, parliamentary declarations, decisions made by international bodies and the like, who insist on this maxim. this principle is, however, accompanied by another well-established idea. under different terms depending to the cases in question, the policy documents for use also stress the need to ensure social cohesion and social integration. according to this view, a non-cohesive society is synonymous with imbalance, conflict, and a problematic and costly situation. the state filter that accompanies us almost permanently in political analysis leads to such social cohesion being identified with the personal and territorial sphere of a given state space. this discourse, which is politically correct and institutionally dominant at the present time, includes those two principles that are not necessarily complementary and that can even become contradictory. in practice, the blessing projected on diversity is largely neutralized in the name of social cohesion. if this involves sharing elements of cultural identity, as it seems to support the majority of citizens and public institutions, the promotion of diversity is relegated to a secondary role. the political and socially dominant discourses highlight the fact that a good deal of harmony is required which cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 12 consists of sharing certain aspects (such as language, symbols, senses of belonging) and that they are varied. underlying this is the old idea that in any society (in the sense of a state) it is desirable and possible for all citizens to share elements of identity, so that diversity is relegated into the background, or the lesser of two evils, contrary to what the first of the aforementioned principles advocates. from this reductionist perspective, and as happened in european history over the last hundred years, it is still advocated that it is more practical to have a less pluralistic, more homogeneous society, and efforts and resources required for the management of diversity should be allocated to other needs. in this view, social cohesion would be much more difficult to attain, the greater the cultural diversity of a society were. this is somehow tested in immigration policies that are adhered to by most of the states in our environment. countries do not seek immigration that increases the cultural diversity of their own society, but clearly prioritize migration flows have less diversity in relation to its domestic society, a clear reflection of the negative perception that ultimately has to do with an excessive rise in cultural differences. in terms of human rights, all the above means that we have experienced a process of "nationalization" since the recognition and consolidation thereof. the inevitability of this process can be explained by the need for the rights to be recognized and guaranteed within comprehensive legal systems, with potential methods of enforcement and institutional mechanisms that can, at a minimum, ensure its implementation. this does not happen at present at international level, and the responsibility for their assurance corresponds to the domestic sphere. therefore, the states have been entrusted to guarantee the protection of rights, and this guarantee has served as one of the defining elements of a first rule of law, and, more recently, a social and democratic rule of law. however, we are now facing another challenge in the process of guaranteeing compliance of supposedly universal rights. the internal diversity inherent in any (post) modern, developed society leading to the need for stepping this process up a gear, which exceeds the nationalization of rights. this historical process of the "nationalization" of human rights means, therefore, that they have been incorporated and protected through every nation-state legal system and this means that they have been "filtered" through the identities or dominant or majority cultural elements within each political community. in view of the foregoing, the biggest challenge for politics nowadays in democratic societies is precisely the management of diversity, given its close relationship with the proper respect for the rights that underpin legitimation of any democratic system. the states and systems must be pluralized so that human rights can be enjoyed by all citizens through their own identities and not in spite of them, even if they are in a minority position. the recognition and enjoyment of human rights cannot be unquestioning of the differences that people bring with them. the law, like the state, must undergo a process of de-identification and open itself to the service of increasingly pluralistic and changing societies in respect of belonging. we have sometimes called this process "democratic pluralization" and there are several legal means that lend themselves to this gradual opening, and which we will discuss schematically in the next section (ruiz vieytez 2009, 128-130). eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 13 in short, we are assuming that legal frameworks should be relaxed to allow for a greater number of identities to be adopted; that the state must review its legislation (especially the interpretation thereof) to facilitate it being successfully applied to a larger number of groups and individuals; that the identity debates and distribution of political power should be de-territorialized; all in all, that the need for citizens to feel they belong to another country from the rationality of collective effectiveness than from collective affectivity; all in the belief that a harmonious, pluralistic society is more just and peaceful community that a homogenizing community. on the path towards that distant goal, it will be necessary to take smaller, more conservative steps, gradually "pluralizing" the legislation. iii.2. institutional and doctrinal approaches to accommodate minorities to a large extent, the political search for the democratic management of cultural diversity in legal terms is reflected in what has traditionally been known as the protection of minorities. indeed, cultural diversity equates in practice to the coexistence of majorities and minorities on one particular society and approaching the issue from the legal perspective should be done through the concept of minority. if we define the legal meaning of this concept, we might first of all say that from the literal point of view, the term "minority" would be better used for designating any group of people identified around a specific characteristic that would account for less than half of individuals within a given field of reference among its members. in this regard, we can discuss many different types of social minorities, but this way the legal scope of protection would be endlessly broad. however, in terms of the international law on human rights, the term "protection of minorities" refers to a defined subject area. when international legal texts refer to minorities, this noun is preceded primarily by four adjectives: religious, linguistic, ethnic and national. the four categories are by no means mutually exclusive, but they provide an important basis for understanding what we are referring to when we speak of cultural diversity in legal terms. in short, the concept of "minority" has traditionally referred to groups of people who differ from the majority of the population in the state in some linguistic, religious or cultural characteristic and who, at the time, share a certain sense of cohesion or bonding in respect of said specific characteristic. in this regard, a distinction has traditionally been made between linguistic minorities, religious minorities and ethnic minorities. the latter concept replaces the concept of racial minority, widely used until the mid-twentieth century. finally, in europe, the term "national minority" is used to refer to ethnic, linguistic or religious minorities whose members are nationals of the state where they live, in order to thereby distinguish these groups of new minorities driven by recent migration flows. if we analyze the developments produced in the institutional framework of the united nations, the meaning of the term national minority is less precise. firstly, because article 27 in the international covenant on civil and political rights adopted in 1966 only refers to ethnic, linguistic and religious minorities, which has led to the human rights committee to accept members of any distinct group that may be differentiated by cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 14 any of these characteristics as persons protected by that provision, regardless of their national status. the term national minority appears in the title of the declaration of rights of persons belonging to national or ethnic, religious and linguistic minorities, and may not give rise thereto if it is equivalent to ethnic minority or whether, on the contrary, it is equated in the text to any of the other three categories above. what can be noted is a difference of approaches between the european regional institutions and those of the united nations. faced with a more restrictive and cautious european approach to the idea of minority and the need to establish policies recognizing rights for its members, there is a more idealistic vision in the context of the united nations, with a broader concept of minority and which seeks to establish universally valid standards above the importance attached to the national state context. figure 1: approaches to the ideas of minority and diversity in european universal and regional institutional settings universal scope united nations human rights committee european scope council of europe echr minority concept broad (old and new) strict (old) nature of the rights recognized individual + collective individual operational perspective pursues universally valid standards over domestic institutions strongly considers domestic conditions through national discretionary powers ideological perspective idealist realist/pragmatic in any case, both in theory and in practice, we still come up against considerable problems requiring further research and more solid consensus. the problems begin with defining the various categories of minorities we have referred to, but also extend to the relevant elements of identity. indeed, it is not easy to legally define what is meant by religion, ethnicity or language. these difficulties are compounded in part when diversities with other traditional minorities converge in practice with other formed as a result of recent population movements. in addition to all this, there is considerable confusion about the rights that may correspond to its members as such, there being significant tensions between the reinterpretation of generic rights or the recognition of specific rights, on the one hand, and between individual and collective rights on the other hand. a part of the european academy has dedicated itself to trying to resolve some or all of these issues over the past three decades. the list of european scholars who have worked on the aforementioned issues is extensive, but it is very unbalanced between one country and another. hence, we firstly find those who are regarded as classics or pioneers of minority rights, such as lerner, thornberry, capotorti, fenet or yacoub, to eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 15 whom we can add sigler, whitaker, stavenhagen, dinstein, tabori or bokatola 9 . from the mid-nineties, the political and regulatory momentum which we previously alluded to is also dealt with at doctrinal level wherein far more publications on the subject was published by authors such as philips, rosas, packer, mintty, benoît-rohmer, brölmann, lefeber, zieck, miall, räikkä, rouland, poumarede, pierre-caps, rousso-lenoir, geremek, lalumiere, fottrell, bowring, musgrave, modeen, zagar, novak, bloed and van dijk 10 . during the same period, or in the early twenty-first century, other names were added that are very relevant today in the european debates on protection and management of minorities. by way of example, the following should be mentioned: skutnabb-kangas, henrard, dunbar, kovacs, mejknecht, moucheboeuf, palermo, woelk, pentassuglia, scheinin, toivanen, skrentny, skurbaty, trifunovska, vitale, lantschner, medda-windischer, heintze, amed, martín estébanez, spilipoulou, tsitselikis, grin, foblets, basta, fleiner, woerhling (jean-marie), gilbert, weller, eide, malloy, marko, ringelheim, oran, aurescu and kurbozka 11 . 9 thornberry, p. (1991), international law and the rights of minorities, clarendon press, oxford; capotorti, f. (1991), study on the rights of persons belonging to ethnic, religious and linguistic minorities, united nations/centre for human rights, nueva york; dinstein, y. and tabory, m. (eds.)(1991), the protection of minorities and human rights, martinus nijhoff, dordrecht; lerner, n. (1991), group rights and discrimination in international law, martinus nijhoff, dordrecht; fenet, a. (dir.)(1995), le droit et les minorités, bruylant, bruxelles, 1995; yacoub, j. (1995), les minorités, quelle protection?, desclée de brouwer, paris, 1995; sigler, j.a. (1983), minority rights: a comparative analysis, greenwood press, connecticut; whitaker, b. (dir.)(1984), minorities. a question of human rights?, pergamon press, oxford; stavenhagen, r. (1990), the ethnic question: conflicts, development and human rights, united nations university press, tokyo; bokatola, i.o. (1992), l´organisation des nations unies et la protection des minorités, bruylant, bruselas. 10 philips, a. and rosas, a. (1995), universal minority rights, university of abo – minority rights group international, abo; packer, j. y mintty, k. (1997), the protection of ethnic and linguistic minorities in europe, institute for human rights, abo akademi, abo-turku; benoît-rohmer, f. and hardeman, h. (1994), the minority question in europe: towards the creation of a coherent european regime, centre for european policy studies, brussels; brölmann, c.; lefeber, r. and zieck, m. (eds.)(1993), peoples and minorities in international law, martinus nijhoff, dordrecht; miall, h. (ed.)(1994), minority rights in europe. the scope for a transnational regime, pinter publishers, london; räikkä, j. (ed.)(1996), do we need minority rights?, martinus nijhoff, la haya; rouland, n., poumarede, j. and pierre-caps, s. (1996), droit des minorités et des peuples autochtones, puf, paris; rousso-lenoir, f., geremek, b. and lalumiere, c. (1994), minorités et droits de l´homme: l´europe et son double, bruylant, bruselas ; fottrell, d. and bowring, b. (eds.)(1999), minority and group rights in the new millenium, nijhoff, the hague; musgrave, t.d. (1997), self-determination and national minorities, clarendon, oxford; modeen, t. (1999), the international protection of national minorities in europe, abo akademi, abo-turku; zagar, m. and novak, a. (1999), “la protección de las minorías nacionales en la europa central y del este a través del derecho constitucional e internacional”, en humana iura-persona y derecho, no. 8/9, pp. 18-68; bloed, a. and van dijk, p. (eds.)(1999), protection of minority rights through bilateral treaties: the case of central and eastern europe, the hague/boston/london. 11 henrard, k. (2000), devising an adequate system of minority protection, martinus nijhoff publishers, the hague; henrard, k. and dunbar, r. (eds.)(2008), synergies in minority protection. european and international law perspectives, cambridge university press, cambridge; thornberry, p. and martin estebanez, m.a. (2004), minority rights in europe: a review of the work and standards of the council of europe, strasbourg, council of europe; kovacs, p. (2000), international law and minority protection. rights of minorities or law of minorities?, akademia kiadó, budapest; mejknecht, a. (2001), towards international legal personality: the position of minorities and indigenous peoples in international law, intersentia, amberes-groningen-oxford; cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 16 at this point, it should be noted the contribution which from outside europe has become a part of the canadian or american doctrine, either laying the philosophical and political foundations of the protection of minorities or exploring techniques and political and legal instruments for the same purpose. in particular, important contributions include those by kymlicka, parekh, taylor, tully, hannum, skutsch, de varennes, woerhling (jose), gagnon, jezequel and bosset, among others 12 . moucheboeuf, a. (2006), minority rights jurisprudence, council of europe / european centre for minority issues, strasbourg; palermo f. and woelk, j. (2008), diritto costituzionale comparato dei gruppi e delle minoranze, cedam, padova; pentassuglia, g. (2002), minorities in international law, council of europe/ european center for minority issues, strasbourg; scheinin, m. and toivanen, r. (eds.)(2004), rethinking non-discrimination and minority rights, abo institute for human rights, abo-turku; skrentny, j.d. (2002), the minority rights revolution, the belknap press of harvard university press, cambridge; skurbaty, z. (2000), as if peoples mattered. a critical appraisal of peoples and minorities from the international human rights perspective and beyond, martinus nijhoff, the hague; trifunovska, s. (ed.)(2001), minority rights in europe. european minorities and languages, asser press, the hague; vitale. e (dir.)(2000), diritti umani e diritti delle minoranze, rosenberg and sellier, turin; lantschner, e. and medda-windischer, r (2003), “protection of national minorities through bilateral agreement in south-eastern europe”, in european yearbook of minority issues. vol. 1, 2003, pp. 535-564; heintze, h.j. (2002), “implementation of minority rights through the devolution of powers. the concept of autonomy reconsidered”, in international journal on minority and group rights, vol. 9, no. 4, pp. 325-343; ahmed, t. (2013), ”the treaty of lisbon and beyond: the evolution of eu minority protection?”, european law review, no. 1, pp. 30-51; skutnabb-kangas, t. and philipson, r. (eds.)(1995), linguistic human rights. overcoming linguistic discrimination, mouton de gruyter, berlin/new york; gilbert, g. (2002), “the bourgeoning minority rights jurisprudence of the european court of human rights”, in human rights quaterly, no. 24, pp. 736-780; malloy, t. h. (2007), “deconstructing the nation for the 21st century through a critical reading of the parliamentary assembly’s recommendation 1735 (2006)”, in european yearbook of minority issues, vol. 5, ecmi-eurac research, martinus nijhoff publishers, leiden-boston, pp. 161-177; spiliopoulou, s. (2007), “multiculturalism in crisis?”, in ruiz vieytez, e. and dunbar, r. (eds.), human rights and diversity: new challenges for plural societies, humanitarian net, bilbao; marko, j. (2009), “effective participation of national minorities in public affairs in light on national case law”, international journal on minority and group rights, no. 16, pp. 621-642; ringelheim, j. (2006), diversité culturelle et droits de l´homme. la protection des minorités para la convention européenne des droits de l´homme, brusells, bruylant ; weller, marc (ed.)(2005), the rights of minorities: a commentary on the european framework convention for the protection of national minorities, oxford university press, oxford; aurescu, b. (2007), “cultural nation versus civic nation: which concept for the future europe? a critical analysis of the parliamentary assembly’s recommendation 1735 (2006) on the concept of nation”, european yearbook of minority issues, vol. 5, 2005/6, ecmi-eurac research, martinus nijhoff publishers, leiden-boston, pp. 147-159; bosset, p. and foblets, m.-c. (2010), “accommodating diversity in quebec and europe: different legal concepts, similar results?”, in institutional accommodation and the citizen: legal and political interaction in a pluralistic society, council of europe, strasbourg, pp. 37-65; kuzborska, e. (2013), legal situation of national minorities in lithuania in the context of international and supranational protection standards, artprint, vilnius. 12 kymlicka, w. (1995), the rights of minority cultures, oxford university press, nueva york, 1995; parekh, b.c. (2000), rethinking multiculturalism: cultural diversity and political theory, macmillan palgrave, basingstoke; tully, j. and gagnon, a.g. (eds.)(2001), multinational democracies, cambridge university press, cambridge; skutsch, c. (ed)(2005), encyclopedia of the world’s minorities, routledge, new york-london; hannum, h. (1993), documents on autonomy and minority rights, martinus nijhoff, the hague; jézéquel, m. (dir.)(2007): les accommodements raisonnables: quoi, comment, jusqu’où? des outils pour tous, éditions yvon blais, cowansville; eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 17 from the point of view of research, in europe, the eurac (european academy) in bolzano and the ecmi (european centre for minority issues) in flensburg are leading centres in the field. we could add other centres along with the above to address these issues from different perspectives, such as the aland islands peace institute, the institute of federalism in fribourg and the institute for ethnic studies in ljubljana, among others. at institutional level, the published work developed by the council of europe, including systematic feedback to the european charter for regional or minority languages 13 and the framework convention for the protection of national minorities 14 is also important. reports published by the venice commission are on occasion of great importance on the subject. it has also promoted the gathering of many of the academics cited by the osce high commissioner on national minorities, especially for drawing up their various recommendations. similarly, the un working group on minorities, today forum on minorities, has held regular meetings and discussions on issues related to this sector of the european and international academia. meanwhile, some ngos have also played a very active role in this area, encouraging debate, training or even research in the field of accommodation of minorities and protection of diversity. in this regard, the following should be cited: mrg (minority rights group international), unpo (unrepresented nations and peoples organization) and fuen (federal union of european nationalities). in respect of periodicals that serve as reference on the subject, we should note the online journal on ethnopolitics and minority issues in europe, for its connection to the ecmi, and the rigorous european yearbook on minority issues, co-edited by ecmi and eurac, and from which there have been more than ten editions. to both the above publications, we can also include others such as international journal on minority and group rights, diversities (formerly the international journal on multicultural societies) or nations and nationalities. finally, we should mention the encyclopaedias and compilations by skutsch, yacoub, de varennes and hannum 15 . woehrling, j. (1998), “l’obligation d’accommodement raisonnable et l’adaptation de la societé à la diversité religieuse”, revue de droit de mcgill, no. 43, pp. 325-401. 13 nogueira, a., ruiz vieytez, e. and urrutia libarona, i. (eds.)(2012), shaping language rights. commentary on the european charter for regional or minority languages in light of the committee of experts' evaluation, council of europe publishing, strasbourg; woehrling, j.m. (2005), the european charter for regional or minority languages, council of europe, strasbourg; council of europe (1998), international conference on the european charter for regional or minority languages, strasbourg; council of europe (1999), implementation of the european charter for regional or minority languages, strasbourg; council of europe (2002), from theory to practice: the european charter for regional or minority languages strasbourg; dunbar, r and morin, t. (2008), the european charter for regional or minority languages and the media, council of europe, strasbourg. 14 verstichel, a., alen, a., de witte. b and lemmens, p. (eds.)(2008), the framework convention for the protection of national minorities, a useful pan-european instrument?, intersentia, mortsel, 2008; weller, m. (ed.)(2005), the rights of minorities: a commentary on the european framework convention for the protection of national minorities, oxford university press, oxford; council of europe (2004), filling the frame. five years of monitoring the framework convention for the protection of national minorities, strasbourg. 15 skutsch, c. (ed)(2005), encyclopedia of the world’s minorities, routledge, new york-london; yacoub, j. (1998), les minorités dans le monde: faits et analyses, desclée de brouwer, paris; hannum, cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 18 in respect of the spanish academy, the almost zero use (and understanding) of the minority concept has caused very few authors to refer to it in their work and there are really quite few works that address the issue in a comparative manner or from a european perspective. nonetheless, there are some authors who, while they do not normally refer to the situation in spain in their writings, have worked partially on the legal protection of minorities or the political management of diversity. these include de lucas, diaz pérez de madrid, deop, relaño, contreras, arp, prieto sanchis, mariño, fernández liesa, garcía rodríguez, díaz barrado, conde pérez, castella or petschen 16 . in turn, the management of diversity and its connection to human rights, fuels the lines of work and research in the human rights institutes at the universities of valencia and deusto (bilbao) 17 . on another level, the whole area of linguistic law has attracted h. (1993), documents on autonomy and minority rights, martinus nijhoff, the hague; de varennes, f. (1996), language, minorities and human rights, martinus nijhoff, the hague. 16 de lucas, j. (1993), “algunos problemas del estatuto jurídico de las minorías. especial atención a la situación en europa”, in revista del centro de estudios constitucionales, no. 15, pp. 97-128; arp, b. (2008), las minorías nacionales y su protección en europa. centro de estudios políticos y constitucionales, madrid; arp, b. (2008), international norms and standards for the protection of national minorities. bilateral and multilateral texts with commentary, boston-leiden, martinus nijhoff publishers; castella subirats, s. (2002), la protección internacional de las minorías. el estatuto jurídico internacional de las minorías: una aproximación histórica al desarrollo normativo y la acción institucional, tarragona, silva editorial; deop madinabeitia, x. (2000), la protección de las minorías nacionales en el consejo de europa, oñate, instituto vasco de administración pública; diaz barrado, c.m. (1999), la protección de las minorías nacionales por el consejo de europa, madrid, edisofer; diaz perez de madrid, a. (2004), la protección de las minorías en derecho internacional, granada, universidad de granada; garcia rodriguez, i. (ed.)(2001), las minorías en una sociedad democrática y multicultural, alcalá de henares, universidad de alcalá; mariño, f., diaz barrado, c.m. and fernandez liesa, c. (2001), la protección internacional de las minorías, madrid, ministerio de trabajo y asuntos sociales; relaño pastor, e. (2003), la protección internacional de las minorías religiosas, centro de estudios políticos y constitucionales, madrid; prieto sanchis, l. (1996), tolerancia y minorías: problemas jurídicos y políticos, universidad de castilla-la mancha, cuenca; contreras mazario, j.m. (2004), las naciones unidas y la protección de las minorías religiosas, tirant lo blanch, valencia; petschen verdaguer, santiago (1990), las minorías lingüísticas de europa occidental: documentos (1492-1989), parlamento vasco, vitoria-gasteiz; conde perez, e. (2001), la protección de las minorías nacionales en la organización para la seguridad y la cooperación en europa (osce), universidad complutense, madrid. 17 apart from those mentioned along the paper, other recent works in this field are the following: ruiz vieytez, e. (2014), “derechos y minorías nacionales”, in peces-barba martinez, g.: fernandez garcia, e.; de asis roig, r.; ansuategui roig, j. and fernandez liesa, c. (dirs.), historia de los derechos fundamentales. siglo xx. vol. v, dykinson, madrid, pp. 1083-1151; ruiz vieytez, e. (2014), “minorías nacionales o étnicas, lingüísticas y religiosas”, in barranco aviles, m.c. y churruca muguruza, c. (eds.), vulnerabilidad y protección de los derechos humanos, tirant lo blanch, valencia, pp. 139-166. gonzalez hidalgo, e. y ruiz vieytez, e. (2013), “el derecho a la autonomía como contenido emergente del derecho a la participación política de las minorías nacionales en europa”, revista electrónica de estudios internacionales, no. 24; ruiz vieytez, e. (2013), “immigration and cultural justice: a reflection on human rights of "new" minorities”, in merle, jean-christophe (dir.), spheres of global justice. global challenges to liberal democracy. political participation, minorities and migrations, springer science, london, pp. 365-377; ruiz vieytez, e. (2013), “minority marriage and discrimination: redrafting muñoz díaz v. spain”, in brems, e. (ed.), diversity and european human rights, cambridge university press, cambridge, pp. 401-425; gonzalez hidalgo, e. and ruiz vieytez, e. (2012), “la definición implícita del concepto de minoría nacional en el derecho internacional”, derechos y libertades, no. 27, pp. 17-56; eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 19 widespread attention in spain, including standardization policies and their relationship to the language rights of citizens. in this specific area, a large number of experts from different branches of law can be found in spain (milian i massana, vernet, pons, arzoz, urrutia, nogueira, cobreros, agirreazkuenaga, fernández liesa, de carreras, lópez castillo, lópez basaguren, fernández pérez, among many others), and even schools with different positions that address current debates generated by the linguistic diversity that characterizes spain as one of the most pluralistic countries in europe. notwithstanding the foregoing, the attention given to the european debates on minorities or on the main instruments of protection by the spanish academy is limited 18 . ruiz vieytez, e. (2011), “nuevas minorías y diversidad cultural”, in añon roig, m.j. and solanes corella, a. (eds.), construyendo sociedades multiculturales. espacio público y derechos. universidad de valencia-tirant lo blanch, valencia, pp. 45-82. 18 on the framework convention for the protection of national minorities and its implementation in spain, or on the european charter for regional or minority languages, vid.: arp, b. (2004), “un balance sobre el primer ciclo de informes estatales del comité consultivo del convenio-marco para la protección de las minorías nacionales de 1995“, in revista española de derecho internacional, vol. 56, no. 1, pp. 525-530; arp, b. (2004), “la protección de las minorías nacionales en españa vista desde el consejo de europa: la opinión del comité consultivo del consejo de europa para las minorías nacionales“, in revista española de derecho internacional, vol. 56, no. 2, pp. 1023-1028; bautista jimenez, j.m. (1995), “el convenio marco para la protección de las minorías nacionales: construyendo un sistema europeo de protección de las minorías“, en revista de instituciones europeas, vol. 22, no. 3, pp. 939-960; carnerero castilla, r. (1999), “el convenio marco del consejo de europa para la protección de las minorías nacionales”, en boletín jurídico de la universidad europea de madrid, no. 2, 1999; diaz barrado, c.m. (1999), “la protección de las minorías en el seno del consejo de europa: convenio marco para la protección de las minorías nacionales“, in anuario de la facultad de derecho, universidad de extremadura, no. 17, pp.125-170; gutierrez vega, p. (2006), “minority report. la ‘vis atractiva’ del concepto de ‘minoría’ sobre el de ‘pueblo indígena’ en la convención marco para la protección de las minorías nacionales”, in perez royo, j., urias martinez, j.p. and carrasco duran, m. (eds.), derecho constitucional para el siglo xxi, vol. ii, thomson-aranzadi, cizur menor, pp. 5045-5065; jimenez piernas, c.b. (1999), “el convenio marco para la protección de las minorías nacionales, de 1 de febrero de 1995, y su aplicación en españa”, in garcia rodriguez, i. (ed.), las ciudades de soberanía española: respuestas para una sociedad multicultural, universidad de alcalá, alcalá de henares, pp. 105-130; lópez basaguren, a. (2013), “la carta europea de lenguas regionales o minoritarias: ¿un modelo para las sociedades multilingües más allá de la protección minoritaria?”, in lopez castillo, a. (dir.), lenguas y constitución española, pp. 129-149; ruiz vieytez, e. (2003), “la carta europea de las lenguas regionales o minoritarias, ¿un instrumento más para la protección de las minorías linguisticas?: contenido, límites y oportunidades”, in carta europea de las lenguas regionales o minoritarias. una perspectiva sobre su aplicación, eke, pamplona; ruiz vieytez, e. (2003), “el convenio marco para la protección de las minorías nacionales. la carta europea para las lenguas regionales o minoritarias”, in gomez isa, f. (dir), la protección internacional de los derechos humanos en los albores del siglo xxi, universidad de deusto, bilbao, pp. 513-546; ruiz vieytez, e. (2004), working together. ngos and regional or minority languages, council of europe, strasbourg; ruiz vieytez, e. (2009), “constitutions, languages, definitions and the european charter for regional or minority languages”, llengua i dret, no. 51, pp. 227-253; ruiz vieytez, e. (2008), “minorías, nacionalidades y minorías nacionales. la problemática aplicación en españa del convenio marco para la protección de las minorías nacionales”, in revista vasca de administración pública, no. 82, pp. 187-225. ruiz vieytez, e. (2014), “españa y el convenio marco para la protección de las minorías nacionales: una reflexión crítica”, revista española de derecho internacional, vol. 66-1, pp. 55-80. cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 20 iv. proposals and instruments for pluralization as argued in the preceding paragraph, democracy cannot be reduced to a mere numbers game in favour of the majorities. the very idea of respecting and guaranteeing basic human rights, the foundation of any democratic system nowadays, consists precisely of setting limits for that numerical rule. a democracy understood exclusively as a rule of majorities does not resolve issues related to respecting the identity of minorities. in the nineteenth century, tocqueville warned of the risk of formal democracy becoming a "tyranny of the majority" (tocqueville 2007, 303-336). the 2009 swiss referendum banning new minarets being built in the country, and its possible effect on freedom of religion or expression constitutes a clear example of formally democratic decision, which nonetheless goes against a fundamental right (freedom of religion) and against the prohibition of discrimination against members of a minority (in this case a religious minority). in fact, it represents a serious contradiction between the constitutional and international legal orders that are governing simultaneously in switzerland (ruiz vieytez 2013, 253-288). in any modern society characterized by cultural diversity, the role of law today cannot be the mere conduit for the decisions of the political majority. in respect of human rights, the aim should be that they can be exercised through the identity of each person, and not in spite of it. there is a right to equality against discrimination, but there is also a right to differentiation (differential treatment) versus standardization (de lucas 2003a, 107). the role of law in this area involves balancing the democratic criteria, which are understood as being the majority rule by implementing corrective measures, accommodations or adaptations that underscore the pluralist dimension. again, we need society and law to be more open and flexible, and make the latter more malleable, such that it can be adapted and applied not only to a way of understanding life, but to as many as possible. this involves shifting the diversity of society to the legal setting, interpreting human rights multiculturally, while multiculturalizing public institutions that carry out such an interpretation. for this process of democratic pluralization of rights and institutions, we have to break with the logic that sees differentiated treatments as privileges. if the unity or cohesion of the political community does not provide for different treatment of different situations, discrimination is guaranteed. the difference in the manner of exercising rights does not imply a difference in the rights themselves. in the current state of development of the law, it is much more feasible to work from the plurality of application rather than from the plurality of the definition of rights. from this perspective, democratic pluralization does not involve creating new rights, or special rights, or collective rights, but a new more open, plural and inclusive method for interpreting the rights we afford to all people. it would certainly be contradictory that democratic and liberal societies that are based on pluralism of opinions of all kinds would nonetheless seek to create a neutral public space from the cultural viewpoint. on the contrary, cultural and identity-based eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 21 pluralism should be understood as something substantial on the theme of democracy 19 , and this implies the recognition of a certain division in society that should be respected 20 . the political developments of the twentieth century have served to extend a broader and more inclusive concept of democracy. it is without doubt an unfinished and insufficient process, but by merely implementing the numerical majority rule or assimilationist policies, we have shifted towards to a paradigm in which diversity is a positive development that we must protect and support. the progress is essentially seen from the perspective of discourse rather than from a practical viewpoint, as seen above. however, international and domestic developments for the accommodation of diversity have increased sharply in recent decades. to analyze the instruments or techniques which, within the existing legal system and respecting the state policy framework, we will distinguish two areas or different approaches. the first of these will serve to systematize the ways in which the states try to constitutionally accommodate diversity. secondly, we will examine legal instruments, the adoption of which could mean a breakthrough in pluralization when applying or interpreting individual rights of persons belonging to minorities. iv.1. techniques for the constitutional accommodation of diversity in comparative practice, we can see a set of instruments used by european political communities to accommodate cultural or identity-based diversity in a democratic manner. systematizing these techniques is a complex task. on the one hand, because the mechanisms that are used in practice by several states are varied and are applied to very different social realities (leurat 1998, 40-60), and on the other hand, because on occasion these mechanisms overlap substantially within the same policy framework. nevertheless, various formulas have been tested by the states to meet the linguistic, ethnic and religious plurality of their populations. from positions that have rejected said plurality with policies aimed at the elimination of minorities or progressive assimilation, to institutional and legal responses designed to effectively protect these groups. in the case of national minorities with a roughly defined regional base, several states have chosen models of regional self-government, either in the form of a federal state (russia, yugoslavia, india, belgium and switzerland), or through the decentralization of political power to subnational entities (united kingdom, spain, italy, finland, ukraine, moldova and denmark). on certain occasions, the regional self-government is combined with some other kind of crosscommunity arrangements (northern ireland, south tyrol, cyprus, india or ethiopia). in other cases, the self-government guaranteed to national minorities of the state is done primarily by means of personal autonomy (slovenia, hungary, india, fiji 19 european court of human rights, case metropolitan church of bessarabia against moldova, judgment of 13 december 2001, para. 119; case refah partisi against turkey, judgment of 31 july 2001, para. 69. 20 european court of human rights, case agga against greece, judgment of 17 october 2002, para. 5860. cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 22 islands or russia). as well as or as an alternative to these protective measures, there may be others that fall within the scope of the direct participation of the minorities concerned in the relevant state and constitutional bodies, and even in some cases, there may be election or decision-making mechanisms specifically provided for to ensure consent from certain groups in the decision-making. in any case, within the european framework itself, at the present time we can observe fundamental differences in the policies adopted by the various states in terms of attaining the mere recognition of their own linguistic, religious and cultural diversity. despite this complex landscape, we can present a typology which can be useful in the theoretical conceptualization of democratic pluralization. the classification in question is presented in table form where two perspectives or different approaches can overlap. on the one hand, we distinguish between a collective approach to diversity and a more individualistic approach to managing such diversity. in the first case, we would place measures and techniques that take into account the connection between majority and minority groups, while the second approach tends to consider the policy framework as a state of citizens who are diverse in their identity. each of these two approaches corresponds to a column in our diagram. the second axis of the diagram reflects the total or partial provision diversity is to be addressed with. this would differentiate approaches that understand diversity (or at least a certain degree of it) as an overall defining element in the state, in approaches that understand diversity as a more limited factor in the organization of the state. by combining both approaches we obtain a total of four categories that bring together different mechanisms for accommodating diversity. hence, self-government or territorial autonomy usually occurs as the result of a collective assumption of diversity and a global approach thereof as a substantial element in the definition of the state. logically, this does not refer to the whole reality of territorial self-government, but at that whose purpose is full or partial satisfaction of the demands for accommodation of a particular minority group. secondly, when the focus is collective, but the assumption of plurality is undertaken to a more partial degree, measures are set out providing for participation in the power of minority groups or some sort of personal or culturally based autonomy. this usually addresses situations in which the minority group is very small demographically and clearly identifiable (such as the situation of certain indigenous peoples or small national minorities) or it is not associated with a clearly definable territory (as is the case for some religious or ethnic minorities). the concept of participation in this case does not equate to that used more widely as a right in international human rights treaties for members of minorities 21 , but rather refers to measures for compartmentalization of power or specific access to it (power-sharing arrangements), and even some consociational arrangements, which are not very common in europe 21 cfr. advisory committee of the framework convention for the protection of national minorities, commentary on the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, adopted on 27 february 2009 (doc. acfc/31doc(2008)001); united nations committee on economic social and cultural rights, right of everyone to take part in cultural life (general comment no. 21), adopted on 20 november 2009 (doc. e/c.12/gc/21). eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 23 figure 2: systematization of legal and constitutional techniques for accommodating diversity within a state collective approach (relations between majority and minorities) individual approach (relations between state and citizens) global approach (diversity as a defining element of the state) territorially based self-government official recognition of the minority elements partial approach (diversity as a secondary element in the state) participation power-sharing cultural autonomy specific rights for members of minorities possibly nowadays we should emphasize the lower left quadrant of our diagram and highlight the potential of cultural autonomy as a future instrument in accommodating diversity. the dynamics of the future must be based on an ongoing process of deterritorialization and on the premise of the multiethnic character of existing states. in the balance between cohesion and diversity, cultural or personal autonomy has potential advantages that have not yet been sufficiently explored (nimni 2005) 22 . these advantages extend to the fact that it is one of the instruments that can best combine the treatment traditional and new diversities. in short, we would advocate reopening those discussions from the danubian area that took place more than one hundred years ago. this would require that, in particular in western european societies, certain taboos on people belonging to religious, national, ethnic or linguistic communities were dissipated and the value of cultural ascriptions would be recognized as natural and inherent to the human and social condition. iv.2. instruments for pluralization in the implementation of rights if we move from a political-constitutional perspective towards an approach that is more focused on the legal protection of human rights, we can find other channels for the pluralization of law in order to deal more effectively with diversity. we can therefore identify some legal instruments that can help us to pluralize rights also within each of democratic political communities. existing legal instruments that may be useful in this regard would be, among other possibilities, a reinterpretation of the concept of citizenship, the international law on minorities, multicultural clauses, indirect discrimination and reasonable accommodation. this list does not mean that the aforementioned channels are equal in respect of depth or potential. they are not mutually 22 vid. a recent debate on cultural and personal autonomy in an special issue 1/2013 of the journal on ethnopolitics and minority issues, available at http://www.ecmi.de/publications/detail/issue-12013-273/ cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 24 exclusive, but they may be compatible and, in fact, there are obvious connection factors between some of them. iv.2.1. re-examination of the concept of citizenship to manage cultural diversity in a democratic manner, a restructuring of the traditional readings of the legal and policy framework and opening the way to a more plural and inclusive understanding of citizenship has been proposed. this new way of understanding citizenship is essentially derived applying multiculturalism to the traditional doctrine of human rights and involves understanding the political community as a democracy based on an open, inclusive and differentiated citizenship (de lucas 2003b, 93). only full citizenship guarantees entitlement to rights and the political inclusion of persons belonging to minorities, particularly immigrants, in the receiving political community. inclusive citizenship involves creating an open system of legal membership in the political community. citizenship, as legal relationship with the state, would no longer be conditional on the assumption of a certain identity parameters to depend on purely factual elements such as mere residence in the state. hence, nationality has to give way to the factual residence as a link for political inclusion (rubio marin 2002, 182), which is expressed in the concept of inclusive citizenship. this filter would be the only condition for access to civil and social rights on an equal basis, but also to develop fair cultural policies in the presence of minorities of all kinds and particularly those minority communities formed in the main from recent immigration processes. this proposal is based on the idea that the democratic legitimacy of the state requires the participation of all residents in the political decision-making processes in fair consideration of their contribution to the country's prosperity 23 . the documents that call for an extended and flexible review of the link of citizenship for foreign residents are becoming increasingly more numerous 24 . at the same time, this citizenship should be plural, and also establish an open system of identity. in fact, multicultural democracy requires the state to be restructured using parameters that reject the uniformity and monopoly of power by a specific group, regardless of their majority status. this requires constantly negotiating the design of public space between all cultural sensitivities or collective identities that actually make 23 council of europe, parliamentary assembly, recommendation 1500 (2001), “participation of immigrants and foreign residents in political life in the council of europe member states”, of 26 january 2001, para. 4. 24 council of europe, parliamentary assembly, recommendation 1206 (1993), “integration of migrants and community relations”, of 4 february 1993, para. 7; council of europe, parliamentary assembly, recommendation 1500 (2001), “participation of immigrants and foreign residents in political life in the council of europe member states”, of 26 january 2001, para. 11.4.b; council of europe, parliamentary assembly, recommendation 1625 (2003) “policies for the integration of immigrants in council of europe member states”, of 30 september 2003, para. 5; united nations, committee for the elimination of racial discrimination, recommendation no. 30, “discrimination against non-citizens”, of 1 october 2004, para. 13. eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 25 up society. plural citizenship is thus constructed from the acceptance of difference, diversity and plurality as positive values. this should be reflected in the position of the public system to ensure the participation of all citizens and groups who are part of the social and cultural life, with a real and effective equality. this obliges the state to intervene on behalf of minority communities in a bid to achieve real participation in the social life and to prevent their difference from becoming a substantive barrier for them to access public resources. iv.2.2. the minority law in europe nowadays there is a robust legal framework for the protection of minorities, meaning those that fit into the categories used by the united nations in its official documents or by internal constitutions that refer to this concept. there are specific treaties in europe on the subject already ratified by a large number of states, in addition to a set of policy documents that are not strictly binding (soft-law) that make up an increasingly consolidated regulatory block to the point that there was talk of the emergence of a common european acquis on the subject (arzoz 2007, 378). this means that all european states are obliged to ensure such protection, including the adoption of positive measures necessary in this regard. nonetheless, there are a number of important legal issues that remain outstanding in defining the scope of this legal block. on the one hand, the absence of an internationally agreed definition for the various categories of minorities and cultural elements that characterize them makes it difficult to uniformly apply this policy area and leaves considerable leeway to the authorities of each state. for example, this leads to the position of several european countries who deny the existence of national minorities in their midst despite evidence of the sociological and political events they include. the potentiality of this sector of the law cannot, of course, be deployed if there is no initial recognition of plurality. in addition to these problems regarding definitions, we have some usual discussions that concur when the rights of minorities are studied. the most common ones in this regard are the confusion between their nature as generic or specific rights and the confusion about their categorization as individual or collective rights. in general, it is more legally correct and politically practical to understand the rights in question as generic and individual. in any case, based on this legislation which acquired notable development in recent years, the need for public authorities to take positive steps to ensure the equality of minorities and the participation of its members in the social, political and cultural life of the country in which they live can be justified. such positive measures can and should benefit not only the minorities formed by nationals in the country in which they reside, but also by foreign nationals. the debate on the protection of old and new minorities, and the point at which they overlap, is one of the most controversial and most successful debates of the current discussions in democratic systems. the doctrinal and institutional progress, albeit slow progress, is heading in the direction of a progressive alignment and consideration of contextual factors as markers cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 26 of state obligations to serve the citizens 25 . this would involve the state's duty to enable all linguistic, religious or ethnic minority communities to exercise their rights, or generic rights through its minority identity, by taking, where necessary, positive measures to ensure their effective equality in the society. iv.2.3. multicultural clauses comparative constitutional law offers us a unique example of a multicultural clause for the interpretation of rights. this relates to article 27 of the canadian charter of rights and freedoms, adopted as an annex to the constitution in 1982, which reads as follows: “this charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of canadians” it is, therefore, a clause requiring public institutions in canada to perform a plural interpretation when implementing the rights recognized in the charter itself; an interpretation inspired by the multiculturalism that traditionally exists in that society. the clause is certainly unique in comparative law, and could be potentially exported to other legal systems. nonetheless, it should be noted that the aforementioned article 27 of the canadian charter of rights and freedoms has not been used extensively to date in the jurisprudence of the supreme court in that country (seglers 2004; ruiz vieytez 2007). the cases that used this article as basis are scarce and do not cover all cases of course where cultural differences have arisen. at the same time, the canadian system has not solved the relationship of the multicultural clause with other constitutional provisions that recognize specific rights for certain minorities based on historical or foundational grounds. in this legal context, these provisions take precedence over this clause. hence, canada has addressed the problem of accommodating religious or linguistic minorities who aspired to achieving equal treatment of other traditional minorities, without the clause from article 27 being particularly useful for this purpose 26 . there is no doubt that a clause of this nature involves the legal obligation to consider the existing culture or identity plurality in society when it comes to deciding on conflicting rights. however, it is also possible to argue that the presence of the clause, to be 25 eide, a. (2004), “the rights of ‘old’ versus ‘new’ minorities”, in european yearbook of minority issues, vol. 2, martinus nijhoff, pp. 365-379; medda-windischer, r. (2009), old and new minorities: reconciling diversity and cohesion. a human rights model for minority integration, nomoseurac research, bolzano/bozen; palermo, f. (2008), “soluciones jurídicas a sociedades complejas: el derecho de la diversidad”, in ruiz vieytez, e. (dir.), derechos humanos y diversidad. nuevos desafíos para las sociedades plurales, alberdania, san sebastián, pp. 75-97; palermo, f. and woelk, j. (2005), “from minority protection to a law of diversity? reflections on the evolution of minority rights”, in european yearbook of minority issues, vol. 3, pp. 5-13. 26 see, in this respect, cases adler and waldman: supreme court of canada, adler v ontario case, [1996] 3 s.c.r. 609; judgment of 21 november 1996. human rights committee, waldman v canada case, decision of 3 november 1999, (documento de naciones unidas ccpr/c/67/d/694/1996). eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 27 symbolically very important, adds nothing substantially new to the role of law in a plural society. in any event, it is the diversity that actually exists that should serve as a guide for any operator, since the law must be interpreted according to the social context in which it should be applied. in any case, their presence serves as a hermeneutical pattern and indicates a guiding principle that helps the pluralization of the law along the lines that are argued in this paper. iv.2.4. indirect discrimination the concept of indirect discrimination has a broad legal scope in any system. there is practically no human rights treaty or constitution that does not incorporate the prohibition of discrimination on the grounds of various cultural elements such as language, religion, membership of an ethnic group or national minority. however, discrimination is a term that may appear as numerous adjectives 27 . the prohibition affects all discrimination and not only what we understand as direct discrimination, and it is within the area of managing cultural diversity where the concept of indirect discrimination can display significant potential 28 . the interpretation we get from indirect discrimination is that in certain cases it is precisely the lack of differentiation (either in the regulation itself or how it is implemented) which leads to discrimination. it also includes situations in which a supposedly neutral regulation eventually causes a negative impact on a particular group because of their identity. in addition, the idea of indirect discrimination also includes "discrimination by indifferentiation" or "discrimination by equalization" (rey martinez 2008), which the european court of human rights contained in its judgment of the case of thlimmenos against greece 29 . nonetheless, although the court itself alluded to thlimmenos doctrine on later occasions, there has been no further evidence of a discrimination by equalization based on cultural or religious differences. therefore, this concept has not yet helped to make significant progress in the pluralization of the rights we called for above. on the contrary, indirect discrimination has become part of the various european systems and can facilitate future developments in this regard. iv.2.5. reasonable accommodation reasonable accommodation is also a result of the prohibition of discrimination alluded to in the previous section, and is specified in an obligation, whose mechanism for justification is very similar to that of indirect discrimination. reasonable accommodation does not come so much from a legislative formulation but from a concept of the right to 27 an extensive taxonomy can be found at united nations committee on economic social and cultural rights, non-discrimination in esc rights (general comment no. 20), adopted on 10 june 2009 (doc. e/c.12/gc/20). 28 this concept is included in european law through council directive 2000/43/ec of 29 june 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; and council directive 2000/78/ec of 27 november 2000 establishing a general framework for equal treatment in employment and occupation. 29 european court of human rights, case thlimmenos against greece, judgment of 6 april 2000, para. 44. cultural diversities and human rights: history, minorities, pluralization the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 28 equality which is taking shape through case-law (bosset 2007, 10). hence, we could define reasonable accommodation as a legal obligation derived from the right to nondiscrimination, which involves taking reasonable steps to align an action or inaction with a particular claim to exercise a right, unless it would cause undue hardship. reasonable accommodation, therefore, can be used on any of the fundamental rights in a system, including those that are projected on or from cultural elements, such as the specific case of religious freedom or expression contained in all bills of rights. reasonable accommodation takes the form of an obligation and is based on the repeal or exemption of a particular standard, or adaptation or special agreement in time, in space or in a particular activity. the concept appears originally in the area of labour relations in american law, from where it would move on to canada. canadian originality in this matter consists of implementing the technique of reasonable accommodation to religious freedom and its ensuing use as a measure of social harmonization of cultural diversity 30 . since 1986 31 , the supreme court of canada has recognised that when a law can be found to have a valid secular purpose, but in addition involves negative effects on the freedom of religion for some persons, the latter have the right to be accommodated, usually in the form of an exemption from enforcement of the law, provided that such a solution is compatible with public interest and does not cause an undue hardship (woehrling 2006, 380) 32 . issues related to dressing codes, food, work calendar, places of worship or the display of cultural or religious symbols feed the possibilities for reasonable accommodation in the canadian experience. as such, reasonable accommodation based on elements of cultural diversity has not yet made the leap to other legal systems 33 . conversely, if they have been using this or other similar concepts in european legislation, such as those related to "reasonable adjustments", almost invariably geared towards persons with functional diversity. in any case, one of the possibilities is that this legal technique can adapt human rights in terms of pluralism, particularly in an environment of cultural diversity (ruiz vieytez 2009). v. conclusion if the transition to modernity meant fleeing from religious and irrational dogmas in order to seek rational principles of social, moral or political organization, postmodernism means giving up any static and comprehensive system to the resistance to change in terms of reference, axiology and identity, in pursuit of a permanent unstable and questionable balance of reciprocal accommodations between different individuals. liberal and democratic societies can only be characterized by pluralism that is derived from its freedom, and which extends not only to the latest values, but also to 30 vid. the famous report bouchard-taylor at http://www.accommodements.qc.ca/commission/mandaten.html 31 supreme court of canada, ontario human rights commission versus simpsons-sears, [1985] 2 s.c.r. 536. judgment of 17 december 1985. 32 r. v. edwards books and art ltd., [1986] 2 supreme court review 713, p. 32; judgment of 18 december 1986. 33 united nations human rights committee, bhinder v canada case, decision of 28 november 1989 (doc. ccpr/c/37/d/208/1986 (1989). eduardo j. ruiz vieytez the age of human rights journal, 3 (december 2014) pp. 1-31 issn: 2340-9592 29 the most common cultural and symbolic elements that serve to build strong collective identities. this has a crucial impact on the theory and practice of human rights. in some way, it may be noted that the context of diversity is the ultimate test of human rights as universal rights. multiculturalism is the framework that will allow us to gauge the depth of the concept of democracy that sustains our political and legal systems. it forces us to reconsider the demos, belonging thereto in terms of citizenship, but also the core content of the rights, to pluralization. at the present time, the legislation we require is not that which precisely defines in a general manner what can and cannot do in a given society, but rather a framework of protection that is less identity-based, more open, cross-cutting and flexible, wherein procedural provisions becomes substantive. what will make the law valuable in pluralistic and changing societies will not be so much its comprehensiveness but its versatility and resilience. democratic pluralization obliges us to re-read the rights from more open and inclusive underpinnings. in this sense, the final regulatory outcome and the procedures taken for arriving at that point therefore become important. in a pluralistic society, procedures and interests are shared, but not necessarily elements of identity. democracy may be measured by the extent to which the collective minority references are accepted or accommodated by the majority group. or, in other words, extending the scope of acceptance of different lifestyles, symbols, references and values within the same legal and political framework. we already have political mechanisms and legal instruments in place for this process that can facilitate an open, plural and inclusive reinterpretation of the different rights. but this needs to be done without forgetting the historical process we come from, which is not exactly a promising example for managing diversity, and assuming the limitations of a liberal legal system, which is based on fundamentally individual allegations and powers, and divided into in nation-state political communities that work on the basis of the rule of the majority. diversities are without doubt a challenge for plural societies, but they are also an opportunity for overcoming outworn identity-based political framework, to reconsider rights and democracy, to repose law as an instrument of social cohesion and to take a giant step forward in the deepening of democracy. iv. references arzoz santisteban, x. 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(eds.)(2001), multinational democracies, cambridge university press, cambridge. verstichel, a., alen, a., de witte, b and lemmens, p. (eds.)(2008), the framework convention for the protection of national minorities: a useful paneuropean instrument?, amberes-oxford, intersentia. wanegffelen, t. (1998), l´édit de nantes. une histoire européenne de la tolérance (xvie-xxe siècle), librairie générale française, parís, weller, m. (ed.)(2005), the rights of minorities: a commentary on the european framework convention for the protection of national minorities, oxford, oxford university press. artistic expression: freedom or curse? some thoughts on jurisprudence of the european court of human rights from the theoretical perspective of visual and performance arts the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 97 artistic expression: freedom or curse? some thoughts on jurisprudence of the european court of human rights from the theoretical perspective of visual and performance arts and rationales behind freedom of political expression sanja djajić1 dubravka lazić2 abstract: the purpose of this contribution is to evaluate the jurisprudence of the european court of human rights (ecthr) in freedom of artistic expression cases dealing with visual and performance arts. the reasons for this particular evaluation are salient to the fact that the ecthr has consistently provided a lesser level of protection to artistic expression than to political expression. the aim of this article is to challenge the approach of the court to the freedom of artistic expression in relation to visual and performance arts. the critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ecthr’s understanding of art and critique based on the ecthr’s own political freedom of expression cases. the argument of the authors is that the ecthr approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its potential subversive and transformative function within a society at large, and, ultimately, its lato sensu political value. in addition, visual and performance arts are powerful yet fragile instruments for delivering the debate to society at large. viewed from this perspective, artistic expression has the same beneficial effect on a democratic society as political expression stricto sensu. therefore, the rationales underpinning protection of political expression are essentially the same as those of artistic expression, therefore the ecthr should extend the same level of legal protection to arts and artists to keep valuable social dialogue alive. keywords: european court of human rights, artistic expression, article 10 of the european convention on human rights, visual arts, performance arts, subversive art, theories of art summary: 1. introduction. 2. background. 3. theoretical considerations of visual and performance arts. 4. international law, the european court of human rights and freedom of expression. 5. crossexamining the european court of human rights. 6. conclusion. 1. introduction a conversation between artists and lawyers is never an easy one. once such discussion was conceived over the jurisprudence of the european court of human rights 1 professor of public international law. department of international law, university of novi sad, serbia (sdjajic@pf.uns.ac.rs). 2 professor of visual arts (photography, history of film). academy of arts, university of novi sad, serbia (dubravka.lazic@uns.ac.rs). mailto:sdjajic@pf.uns.ac.rs mailto:dubravka.lazic@uns.ac.rs artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 98 and how it differentiates between political and artistic expressions, mostly on the ground that the former is essential for public debate and democratic society unlike the latter. to say that artists are baffled by this view is an understatement in the extreme. it was to be expected that artists would not only dislike the rationale of the court but would simply be unable to grasp the reasoning of the said body. what a lawyer intuitively felt was wrong in the court’s take on artistic expression was easily articulated by the artist. as their tools and interests crossed, discussion ensued. so here we are. 2. background while the existence and relevance of freedom of expression as an international human right is by now beyond any doubt, its magnitude and content seem to be the matter of ever-evolving international jurisprudence. freedom of expression jurisprudence is rich, versatile and above all closely monitored by different interested groups and individuals given the variety of contexts which can give rise to its application. in terms of what freedom of expression entails we may encounter different cultural and legal traditions, both in terms of national and international law. one of these traditions certainly is the one generated by the european convention on human rights (hereinafter: echr or convention) and case law of the european court of human rights (hereinafter: ecthr or court). case law of the ecthr on article 10 of the echr (freedom of expression) is abundant. what the court has distilled over the years are different types of expression considered eligible for the protection under this provision. the court found that different categories of expression such as political, commercial, academic or artistic fall within the ambit of article 10 despite the fact that this provision makes no difference as to the content of the expression nor does it place any limits on the application of this provision in terms of the context in which it may appear. one of the consequences of this typology is a different protection afforded to different categories of expression (janis, kay, bradley, 2008, 256-305). the court seems to favour political expression over other recognized types of expression. in other words, the court leaves a very limited margin of appreciation to member states for limiting political expression. conversely, other types of expression have so far earned much less appreciation by the court which has agreed to give member states a much wider margin of appreciation for censoring commercial, academic or artistic expression. as a matter of fact, the last in line seems to be the least favoured especially in relation to visual and performance arts. the purpose of this article is to challenge the approach of the court to freedom of artistic expression in relation to visual and performance arts. the reasons to opt for visual as opposed to all other forms and types of artistic expression are complex and range from practical reasons, such as manageability of research, to the reasons borne out of empirical research: visual and performance arts have had even less of an otherwise poor legal protection of art in comparison to other forms of art such as literature. also, they communicate more directly and with much more vigour and effect, to a much larger audience than some other forms of art. visual language is universal, thus transcending the sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 99 language barrier concomitant to other forms of art. according to rudolf arnheim, a famous art theorist and perceptual psychologist, visual images are one of the two principal means by which human beings express their experience (verbal language being the other one), hence visual and performance arts use these means of representation and communication artistically. moreover, he claims: “within the range covered by the visual field, the projection of that outer world seems to present itself completely and objectively. in practice, however, this primary presence of the world is immediately modified by the active processes deserving the name of perception. instead of the mechanical recording of stimuli, vision consists of selecting and organizing, which are cognitive activities directly related to recognizing and understanding.” (arnheim, 1992, 45) the twentieth century introduced a large variety of new media arts and disciplines that were the exact consequence of the new industrial age. photography, film and digital media now took their rightful place as art methods. these new disciplines were the pure product of the new age and they also brought a new approach to assessment of an artwork. since those new disciplines understood usage of new technology that presented (or represented) the actual, real surrounding as artistic material, the result was more direct and objective. meaning: to observe the oil painting of a nude and a photography of the same subject, one can notice the difference in the straightforwardness of the visual presentation of the subject. as amos vogel claims: “the power of the image, our fear of it, the thrill that pulls us toward it, is real. [...] it is the powerful impact of these brightly-lit images moving in black space and artificial time, their affinity to trance and the subconscious, and their ability to influence masses and jump boundaries, that has forever made the cinema an appropriate target of the repressive forces in society - censors, traditionalists, the state. while the result has often been its inability openly to project fundamental human experiences or insights, neither repression nor fear seem able to stem an accelerating, world-wide trend towards a more liberated cinema, one in which all previously forbidden subjects are boldly explored.” (vogel, 1974, 9) in addition, as also will be shown, visual and performance arts, at least the one discussed by the court, were manifestly socially engaged but were treated by the court rather as aesthetics or ethics than as a factor of a social dialogue. the main argument of the authors is that art in and of itself, and visual and performance arts in particular, serve the same purpose as political expression recognized by the court so the same magnitude of protection should be equally afforded to art as it is to politics. this argument is based equally on the theories of art and on the theory of political expression as engineered by the court. by drawing parallels between the two, in light of the contrasting jurisprudence on political and artistic expression, the authors will try to demonstrate the fallacy of the court’s reasoning in denying the protection to artistic artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 100 expression. the reasons behind such an approach of the court to this issue could be manifold from a sheer misunderstanding of art in general, or visual and performing arts in particular, to some underlying rationale for balancing, as an exercise, between human rights and other arguably legitimate interests. the article will begin with conceptualizing visual and performance arts from a theoretical point of view, its meaning, relevance and theoretical underpinnings in order to move to the international law framework of the right to visual artistic expression and the court’s take on it in contrast to political expression. the article will then provide an overview of the court’s cases on visual and performance arts, the majority of which ruled against artists. during this discussion the authors will equally contrast these findings with the rationales the court used when assessing and upholding political expression, in order to demonstrate the genuine link between two different types of expression. this article will also engage in discussion with other critical commentaries of the court’s understanding of art. while we shall follow the footsteps of these persuasive critiques of the court’s jurisprudence to the extent that autonomy of art should be recognized as such, we still feel that there is space for building upon the existing critiques in several ways. we intend to focus on visual elements in arts viewed from the perspective of relevant theories of art in order to demonstrate that the existing jurisprudence on political expression can just as equally be used for artistic expression claims. 3. theoretical considerations of visual and performance arts theories of art aim to define the structure of art and the process of the creation of an artwork by looking into the essence and purpose of art itself. these theories also hypothesize on the concept of art which directly implies the interaction with the recipient and is, therefore, more aimed towards the consumption of an artwork. each theory of art takes one specificity of art in order to define its existence and purpose. to name but a few: historical theories of art define and categorize artwork in reference to elapsed time and other existing artworks that claim their rightful place as already established oeuvres.3 functional theories of art refer to aesthetic experience that art produces in the audience.4 formalist theories of art state that one should only take into consideration formal properties of art (line, colour, shape, rhythm, harmony, etc.) and not the contextual ones. institutional theories of art consider that an artwork can only become art if it has its place in the institution that is defined in the artworld.5 aesthetic 3 philosopher jerrold levinson is primarily associated with this historical definition of art (in 1979). 4 monroe beardsley is associated with this notion of art. according to him, art has an intended aesthetic function, but not all artworks succeed in producing aesthetic experiences (beardsley, 1982, 299). one can make the same parallel with nature: nature, for example, possesses aesthetic experience but does not possess the function of producing those experiences. for such a function, an intention is necessary. 5 in 1964 arthur danto wrote the essay the artworld (danto, 1964) in which he defined this term that, later on, outlined the first institutional theory of art. george dickie subsequently formulated more explicitly institutional theory in his essays and books defining art (dickie, 1969) and aesthetic: an introduction (dickie, 1971) and art and the aesthetic: an institutional analysis (dickie, 1974). sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 101 creation theories of art explain the process of artwork and are based on the artist as a creator (zangwill, 1995). anti-essentialist theories of art were presented as theories that will overcome all others and attempt to form new ground upon which the art would be defined. or, according to arthur danto, who declared “the end of art” in 1984 (danto, 1984), had in mind exactly the opposite to underline the change in the western narrative of art and to indicate that the contemporary age has brought a new way of making and interpreting art as an open concept. anti-essentialist theories of art put forward the idea of art as an “open concept”6. morris weitz explains that open concepts “call for some sort of decision on our part” (weitz, 1956, 31) meaning that the participants (audience) can use the existing concept of an artwork or invent a new one.7 following in those footsteps, in 2005 berys gaut proposed a set of criteria to define a piece of art8 which include, inter alia, the following requirements: to be intellectually challenging; formally complex and coherent; to have a capacity to convey complex meanings, and to exhibit an individual point of view. therefore, an artist has the right to express or exhibit his or her individual point of view on a chosen topic. in reference to this claim, we must point out the fact that art has been valued and perceived differently throughout history. in western culture, the understanding of art and its purpose was in a state of constant flux. in the middle of the nineteenth century, the purpose of art was to please, to evoke divine sensation with the spectator and even to try to manifest divine moral standards of christian values. during the turbulent years at the beginning of the 20th century, the understanding of an artwork and its purpose dramatically changed. the turn of the century brought new ways of life and a sense of liberation from the old, outdated notions of art. after the turbulent 1920s, and the huge change in the artworld, the idea of “pretty” and “beautiful” was no longer dominant. cubism, dadaism, new objectivity, constructivism, surrealism and other art movements threw up new conceptions of art that changed not only the art itself but the audience's perception as well. constructivism, for example, offered actions that were aimed towards making a social impact. furthermore, the dada movement aimed at a wider audience by experimenting with a nihilistic type of artistic method that was 6 morris weitz argues that the concept of ‘art’ is an “open concept” (weitz, 1956). 7 the question of whether a new artifact is art or not, “is not factual, but rather a decision problem, where the verdict turns on whether or not we enlarge our set of conditions for applying the concept” (weitz, 1956, 32). 8 “i defend a particular instance of the cluster account in its application to art. this involves ten criteria that count towards an object’s being art: 1. possessing positive aesthetic qualities (i employ the notion of positive aesthetic qualities here in a narrow sense, comprising beauty and its subspecies); 2. being expressive of emotion; 3. being intellectually challenging; 4. being formally complex and coherent; 5. having a capacity to convey complex meanings; 6. exhibiting an individual point of view; 7. being an exercise of creative imagination; 8. being an artifact or performance that is the product of a high degree of skill; 9. belonging to an established artistic form; and 10. being the product of an intention to make a work of art.” (gaut, 2005, 274). artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 102 meant to go into the public sphere. the artists’ choice was now imperative.9 later on, the auteur10 brought up new standards in freedom of expression that the audience of the new age readily followed. from now on, philosophers and theorists (danto, croce, mcluhan, brian massumi, jean-franҫois lyotard, andré malraux and others) reconsidered the notion of art regarding the expression of an artist and, later on, the concept of an artwork. in the second half of the twentieth century, art changed again and brought up the view of modern and postmodern art that implied the comprehension of an artwork as something that is not elite-based but is open to interpretation and judgement, implying that it is the reaction of the audience that is sought after. the appearance of artists such as josef beuys further expands the definition of art and its concept as the art now vitally depends on the audience. the art moves away from the object and thereby obscures or even totally removes the relevance of aesthetics in art.11 this is particularly true for the performance art as a new artistic form, which can be defined as art which “does not comply with usual aesthetic parameters, but rather with a set of forces that collectively form an experience.” (regli, 2018, 10). nowadays this approach is considered in the history of art as revolutionary which only proves the thesis that art itself and its understanding is a matter of constant change. in the contemporary age, art has been perceived as socially or even politically engaged either because it involved the audience and perceptions of others but also because it counted on the public sphere as its natural habitat. moreover, the evolution of art and the audience has led to the contemporary art form known as social art which is, according to martin krenn, a dialogical practice: “... a specific political potential is embedded therein. when this potential is released, it facilitates aesthetic experience that contributes to the democratization of society and improvement of human coexistence. politically engaged social art is a part of civil society, which is referred to as the “fourth pillar” of a democratic society. it is referred to as the fourth pillar because democracy is more than free elections and the separation 9 today, the widely accepted artwork fountain, by marcel duchamp that was presented for the first time in 1917, is generally recognized as a milestone in the history of art. also, it is an artwork that made a huge change in the subject matter that the above mentioned questions relate to. today, fountain represents a change in the way we look at art today. from visual to a more conceptual way of artistic expression. this change brought up a question that is relevant to this day: what actually constitutes a work of art. 10 the 1960s brought (in visual arts, especially in film) the notion of an auteur as an individual artist persona that is the sole authority that stands in front of the artwork. 11 “beginning with the readymade, the work of art had become the ultimate subject of a legal definition and the result of institutional validation. in the absence of any specifically visual qualities and due to the manifest lack of any (artistic) manual competence as a criterion of distinction, all the traditional criteria of aesthetic judgment— of taste and of connoisseurship— have been programmatically voided. the result of this is that the definition of the aesthetic becomes on the one hand a matter of linguistic convention and on the other the function of both a legal contract and an institutional discourse (a discourse of power rather than taste).” (buchloh, 1990, 117-118). sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 103 of powers. a functioning democracy needs civil society just as much as it needs an elected legislature, an executive and judicial system. without the social and political engagement of civil society, democracy would be reduced to the selection of parties in elections, obedience to executive power and submission to court rulings.” (krenn, 2019, 68) krenn’s point is generally accepted, to the point where “in recent decades, public disagreements over artistic expression have emerged as a key feature of contemporary democratic culture … in the late twentieth and early twenty-first century, conflicts over the arts emerged as a central feature of contemporary public culture, posing fundamental questions about the definition of cultural democracy, the public good and freedom, not least for societies in the midst of intense change’.” (pluwak, 2020, 1) it seems that the contemporary age has brought out to the surface a new recognition of social art due to the evolution of the art itself as well as the evolution of the comprehension and interpretation of the artwork. many claim that socially engaged art has been present from its early days. today art historians interpret famous artworks from the previous centuries and find latent subversive messages in them. according to beverly naidus: “the concept of art for social change has been around for many centuries. in my mind, it begins in the fifteenth century with the invention of the printing press. at that time, powerfully illustrated broadsheets were created and circulated to speak about the injustices experienced by peasants at the hands of the feudal lords and the church establishment. the history of socially engaged art has taken many forms over the centuries; sometimes it has existed as the well-crafted lines of a song that eventually seared off the façade of a corrupt regime or as the wickedly fully satire that could break the public’s trance.” (naidus, 2005, 169) nevertheless, socially engaged art seems to be more relevant today than ever before, because the public has developed a feeling of entitlement to express opinion on different matters in the public sphere. the right of the public to express itself goes hand in hand with the main purpose of social art. art challenges established conventions by embracing experience in real time/space as artistic value and develops them further. contemporary theories of art recognize the social relevance of art.12 art has not only been an exercise in ethics or aesthetics. the political relevance of art, in terms of engaging immediate audiences or the public at large, has been gradually recognized, and reveals its challenging and subversive function. its shocking or even seemingly offensive 12 also, the media influence is very present in the promotion of art. for example, famous banksy’s murals suddenly became “visible” after the media turned their attention to the fact that the author of many (for some) provocative murals is, actually, anonymous. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 104 form of expression is just a shorthand for the call for transformation both on an individual and community/societal level. this is where the notion and the understanding of arts controversies comes to the fore. its most apparent characteristics that vary from aesthetic approach to the freedom of individual expression are the subject of constant change and have “since emerged as linked to social processes and rooted in collective concerns. the significance of arts controversy now goes beyond “scandalous” outrage and discussions of artistic autonomy; anxiety provoked by the arts is increasingly seen as being less about the works themselves than about deeper social struggles [...]” (pluwak, 2020, 2) so, if art controversy is a struggle in the realm of public opinion, and if we consider different theoretical approaches which claim that art controversy is: “rooted in a modernist perspective where controversy is primarily about the arts: it emanates from within the art world and is often a matter of artists being provocative and the audiences reacting to the provocations” (pluwak, 2020, 3) or: “controversy is rarely about art; rather, it is about a political, personal, financial, or other agenda, and the contested artwork acts as a catalyst or a focus for more diffuse frustration.” (pluwak, 2020, 3) then we can (according to the examples provided within this article) draw the conclusion that art controversy is primarily about political, religious, financial or other agendas. 4. international law, the european court of human rights and freedom of expression freedom of expression has been firmly embedded in international human rights law and has been guaranteed in numerous international instruments. although there is no overwhelming convergence regarding the substance of the right to artistic expression there is still strong understanding, expressed in black letter law or developed through jurisprudence of various courts and tribunals, that art has become a human right. according to article 27(1) of the 1948 universal declaration on human rights “everyone has the right … to enjoy the arts” while article 19(2) of the 1966 international covenant on civil and political rights expressly provides freedom of artistic expression: “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” the eu charter on fundamental rights and freedoms guarantees in article 13 (freedom of arts and science): “the arts and scientific research shall be free of constraint.” a number of international human rights instruments link the freedom of expression and/or the right sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 105 to art with cultural rights thereby expanding its scope of application and reinforcing the societal importance of the art as such.13 finally, recent trends at the un manifest the awareness that both artists and art mandate specific treatment and protection. in 2013 the special rapporteur in the field of cultural rights submitted the report “the right to freedom of artistic expression and creativity” to the human rights council arguing, inter alia, for covering the broad range of issues in relation to artistic activity and calling for the special protection of artistic expression and artistic freedoms in general.14 the 2018 report on cultural rights linked the right of artistic expression to the right to culture and the right to creativity.15 article 10 of the convention provides for freedom of expression in general terms without singling out any particular type of expression. as we have already noted, it is the court that has differentiated different types of expression within the meaning of article 10 of the convention. this provision, which is central to our discussion, reads as follows: article 10 freedom of expression 1. everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. this article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. the main rationale of this particular freedom lies in the second sentence of the first paragraph: freedom of expression exists so that ideas and information can be freely exchanged within a society. what is not spelled out in article 10, albeit it is a logical consequence of the whole provision, is that this exchange of ideas and information serves the higher purpose in and for democratic society: 13 article 15(3) of the 1966 international covenant on economic, social and cultural rights (icescr), articles 13 and 31 of the 1989 convention on the rights of the child, article 13(1) of the 1969 american convention on human rights, article 36 of the 2004 arab charter for human rights. 14 report of the special rapporteur in the field of cultural rights, farida shaheed: the right to freedom of artistic expression and creativity, a/hrc/23/34, 14 march 2013. 15 report of the special rapporteur in the field of cultural rights, a/hrc/37/55, 4 january 2018. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 106 “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. subject to paragraph 2 of article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”16 this reasoning was the cornerstone of the court’s jurisprudence on a variety of forms of expression but mostly in relation to freedom of the press, as well as with respect to different forms of political expression. in an early freedom of the press case, lingens v. austria, the court clarified why such imparting of information was essential for democratic society: “freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. more generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the convention.”17 this concept further led to expanding the freedom of the press vs. possibilities to limit the freedom of expression as envisaged in paragraph 2 of article 10. in other words, a possibility to limit the freedom of the press for the sake of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary, was now substantially limited in favour of freedom of expression. however, in first cases dealing with artistic expression the starting position of the court seems to have been different. in the first case dealing with visual arts within freedom of expression the court set the path that would be followed for a long time. it was the case of müller and others v switzerland18 where josef felix müller and eight other applicants complained that their freedom of expression was breached by swiss authorities who banned their exhibition and seized the paintings on the ground that these paintings were contrary to criminal obscenity legislation (the original charges of infringing freedom of religious belief and worship were dismissed). three large paintings ("three nights, three pictures") seemed to have portrayed sexual activity of several persons and animals. the swiss appellate court dismissed, despite the expert opinion on the artistic merit of the work, any artistic value to the proscribed paintings in the following terms: 16 hertel v. switzerland, ecthr, app. no. 25181/94, judgment of 25 august 1998, para. 46(i). this particular finding was repeated and rephrased in a number of cases. here we shall mention only a few: steel and morris v. united kingdom, app. no. 68416/01, judgment of 15 february 2005, para. 87; mouvement raëlien suisse v. switzerland, ecthr [gc], app. no. 16354/06, judgment of 13 july 2012, para. 48; animal defenders international v. united kingdom, ecthr [gc], app. no. 48876/08, judgment of 22 april 2013, para. 100, delfi v. estonia, ecthr [gc], app. no. 64569/09, judgment of 16 june 2015, para. 131(i). 17 lingens v. austria, ecthr, app. no. 9815/82, judgment of 8 july 1986, para. 42. 18 müller and others v switzerland, ecthr, app. no. 10737/84, judgment (merits) of 24 may 1988. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 107 “sexual activity is crudely and vulgarly portrayed for its own sake and not as a consequence of any idea informing the work. lastly, it should be pointed out that the paintings are large ..., with the result that their crudeness and vulgarity are all the more offensive. the court is likewise unconvinced by the appellants’ contention that the paintings are symbolic. what counts is their face value, their effect on the observer, not some abstraction utterly unconnected with the visible image or which glosses over it. furthermore, the important thing is not the artist’s meaning or purported meaning but the objective effect of the image on the observer.”19 these findings were reaffirmed by a higher swiss court which, inter alia, “scrutinised the paintings for a predominantly aesthetic element. …. it decided that the emphasis was on sexuality in its offensive forms and that this was the predominant, not to say sole, ingredient of the items in dispute. …. the overall impression created by müller’s paintings is such as to be morally offensive to a person of normal sensitivity.”20 the european court of human rights handled the application as one dealing with freedom of expression and specifically with artistic expression. it began with the basic rationale that article 10 applies not only to “‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any section of the population…. those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. hence the obligation on the state not to encroach unduly on their freedom of expression.”21 however, the court then diverted to “duties and responsibilities” enshrined in article 10 and accepted the ground for criminal conviction, namely public morals, without much discussion, finding that moral is of local, national character without european consensus on the issue. this was in fact carte blanche to national authorities to limit freedom of expression invoking local morals. in sum, the court did not find a breach of freedom of artistic expression in a criminal conviction of the artist for obscenity. there is something positive and something negative in this early freedom of artistic expression case. the negative aspect certainly is in chaining art to its face value, with aesthetics and ethics, rather than engaging in multiple layers of art which also includes active social debate that “shocks and disturbs”. the positive thing is that even obscenity in the form of art was accepted by the court as a form of expression: a piece of art subject to scrutiny. it could easily have been dismissed much earlier as inadmissible due to a lack of artistic form or value that would consequently leave the issue outside the scope of article 10, as was the case with s. and g. v. uk.22 in this case, mr. gibson created and 19 id. at para. 16. 20 id. at para. 18. 21 id. at para. 33. 22 s. and g. v. united kingdom, commission, app. no. 17634/91, decision on inadmissibility of 2 september 1991. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 108 exhibited sculptures in the form of earrings made out of a freeze-dried human foetus of three or four months' gestation. the exhibition was held in a small gallery with unlimited access and advertised by the artist. the exhibition was ultimately closed by authorities as a breach of common law offence of outraging public decency.23 while arguably there were several explanations for the artistic idea behind this work (lewis, 2002, 56), its underlying rationale was actually never tested, either before the uk courts or before the european commission. quite to the contrary, the claim was dismissed as manifestly ill-founded which implies that the european commission was not persuaded that the exhibits fell within the scope of art and thus within the scope of artistic expression.24 in subsequent cases on visual arts the court maintained the policy of minimalistic protection of artistic expression. in otto-preminger-institut v. austria,25 the court upheld the restriction of artistic expression on the grounds invoked by austria, which was the protection of the religious sensibilities of believers. austrian authorities prohibited distribution and ordered the seizure and forfeiture of das liebeskonzil ("council in heaven"), a film by werner schroeter, which was to have six showings in a cinema in innsbruck run by the applicant, otto-preminger-institut für audiovisuelle mediengestaltung (opi), a private non-profit association established with the general aim of promoting creativity, communication and entertainment through the audiovisual media.26 the film was made on the basis of the play of oskar panizza who himself was sentenced for blasphemy back in 1895. as a manifest homage to panizza, the schroeter film was advertised in the following manner: "oskar panizza’s satirical tragedy set in heaven was filmed by schroeter from a performance by the teatro belli in rome and set in the context of a reconstruction of the writer’s trial and conviction in 1895 for blasphemy. panizza starts from the assumption that syphilis was god’s punishment for man’s fornication and sinfulness at the time of the renaissance, especially 23 “various legal scholars have pointed out that, had they instead been prosecuted under the obscene publications act (which covers non-textual work), gibson and sylveire would have been able to offer a defence based on artistic expression. so, as the sunday times (5th february 1989) reported, the fact that they were charged with outraging public decency meant they could offer no evidence of their intentions in making and showing the piece, or relate it to artistic traditions. and because no individual needs to actually claim offence in order for a case to be brought, it was up to the jury to decide if an unidentified ‘public’ might be offended by the work.” (dow, 2017) 24 “as regards the facts of the present case, the commission notes that the second applicant’s sculpture used two freeze-dried foetuses of three to four months’ gestation as earrings. the sculpture was displayed in an exhibition which was open to, and sought to attract the public. in the circumstances, the commission does not find unreasonable the view taken by the english courts that this work was an outrage to public decency. having regard to the margin of appreciation left to them under article 10 para. 2 (art. 10-2) of the convention, the domestic courts were entitled to consider it “necessary” for the protection of morals to impose a fine on the applicants for exhibiting the piece. it follows that the application is manifestly ill-founded within the meaning of article 27 para. 2 (art. 27-2) of the convention.” s. and g. v. united kingdom, commission, app. no. 17634/91, decision on inadmissibility of 2 september 1991. 25 otto-preminger-institut v. austria, ecthr, app. no. 13470/87, judgment (merits) of 24 september 1994. 26 id. at para. 9. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 109 at the court of the borgia pope alexander vi. in schroeter’s film, god’s representatives on earth carrying the insignia of worldly power closely resemble the heavenly protagonists. trivial imagery and absurdities of the christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated."27 the local diocese of the roman catholic church requested that the public prosecutor initiate criminal proceedings against the manager of the cinema. after a private showing of the film, in the presence of the local judge, the showings were cancelled, and the film´s public release at this venue was ultimately forbidden by the court’s decision.28 the applicant’s claim before the court was that its right to artistic expression was breached by the seizure and forfeiture of the film, and that religious sentiments of others could not have been affected given the limited and informed audience that would have to pay to view the film and always had the option not to be engaged. austria’s defence was that the restriction was justifiable and proportional to the aim pursued: protection of religious beliefs of others and the morality of the majority of the population in the area.29 although the court reiterated the existence of artistic expression,30 relying on the müller case, it nevertheless upheld the restriction that seems to be grounded on local morality and religious beliefs of the majority of the local population: “the court cannot disregard the fact that the roman catholic religion is the religion of the overwhelming majority of tyroleans. in seizing the film, the austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.”31 unlike the müller case that revolved solely around morality and obscenity, here it was morality together with rights of others, more precisely together with the perception that religious sentiments and rights of believers would be unjustifiably affected. a mere prospect of religious insult was 27 id. at para. 10. 28 description of the proscribed text as given by the european court is as follows: “the play portrays god the father as old, infirm and ineffective, jesus christ as a “mummy’s boy” of low intelligence and the virgin mary, who is obviously in charge, as an unprincipled wanton. together they decide that mankind must be punished for its immorality. they reject the possibility of outright destruction in favour of a form of punishment which will leave it both “in need of salvation” and “capable of redemption”. being unable to think of such a punishment by themselves, they decide to call on the devil for help. the devil suggests the idea of a sexually transmitted affliction, so that men and women will infect one another without realising it; he procreates with salome to produce a daughter who will spread it among mankind. the symptoms as described by the devil are those of syphilis.” id. at para. 21. 29 this seems to relate only to tyrol, not the whole of austria. the play was performed subsequently in theatres in vienna and even in innsbruck without any restrictive measures (ibid., para. 19). also, austria made its case based on the percentage of roman catholics in tyrol (id. para. 52). 30 interestingly, article 17a of the austrian basic law provides specific protection to artistic expression. austrian courts did engage in an analysis of this provision but decided it has “come as second” to protection of religious freedoms. 31 otto-preminger-institut v. austria, ecthr, app. no. 13470/87, judgment (merits) of 24 september 1994, para. 56. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 110 sufficient to outweigh the artistic expression. even the minimalistic ambition of applicants failed: they did not challenge the prohibition of cinema shows but solely the seizure and forfeiture of the film which made film showings banned forever in austria. despite all these circumstances the court upheld the restriction without entering into any discussion of the artistic value of the work or of the underlying ethical rationale of the film here the art was again restricted to ethics, this time to religious and local ethics. in a similar vein the court upheld the blasphemy restrictions on artistic expression in wingrove v. united kingdom.32 nigel wingrowe directed a short film “visions of ecstasy” based on the life of st. teresa of avila who lived as a nun in the xvi century. the film, which solely contains moving images and music, portrayed the erotic fantasies of saint teresa over the wounded body of christ on the cross. the british board of film classification refused to issue a classification certificate on the grounds of blasphemy, which amounted to an outright ban on film distribution. the case reached the european court of human rights as article 10 case of artistic expression. the ecthr upheld the ban. as to the concept of artistic expression, here in the context of visual arts, the court interestingly did not take a firm stand because the concept of “artistic expression” was not even mentioned. the court was satisfied that “it was common ground between the participants in the proceedings” that refusal to issue classification certificate “amounted to an interference by a public authority with the applicant’s right to impart ideas.” in other words, the court refused to engage in classification of the ideas that were to be imparted. however, within the description of the banned video work, the court was manifestly aware of the artistic aspirations behind the film: “apart from the cast list which appears on the screen for a few seconds, the viewer has no means of knowing from the film itself that the person dressed as a nun in the video is intended to be st teresa or that the other woman who appears is intended to be her psyche. no attempt is made in the video to explain its historical background.”33 elsewhere, the court indirectly gave its opinion on the (lack of) artistic merit of the film: “visions of ecstasy portrays, inter alia, a female character astride the recumbent body of the crucified christ engaged in an act of an overtly sexual nature (see paragraph 9 above). the national authorities, using powers that are not themselves incompatible with the convention (see paragraph 57 above), considered that the manner in which such imagery was treated placed the focus of the work "less on the erotic feelings of the character than on those of the audience, which is the primary function of pornography" (see paragraph 15 above). they further held that since no attempt was made in the film to explore the meaning of the imagery beyond engaging the viewer in a "voyeuristic erotic experience", the public distribution of such a video could outrage and insult the feelings of believing christians 32 wingrove v. united kingdom, ecthr, app. no. 17419/90, judgment (merits) of 25 november 1996. 33 id. at para. 10. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 111 and constitute the criminal offence of blasphemy.(...) furthermore, having viewed the film for itself, the court is satisfied that the decisions by the national authorities cannot be said to be arbitrary or excessive.”34 despite going around the concept of artistic expression, the court indirectly made its own assessment of the artistic value of the banned video art. blasphemy laws (although protecting only christian religion) were perceived as a legitimate aim of protecting “interests of others”. therefore, it was the assumed ethics and beliefs of others that prevailed over the actual beliefs and ideas of artists. the uk repealed its blasphemy laws in 2008 and the film was finally cleared for release in 2012.35 indeed, the trend of confronting religious freedoms with freedom of artistic expression seems to have lost its grip around the time the uk, and some other countries began to repeal their blasphemy laws. the renaissance of artistic expression is evidenced by the council of europe parliamentary assembly adoption of the resolution “freedom of expression and respect for religious beliefs” in 2006.36 with respect to art the resolution states as follows: “the assembly also recalls that the culture of critical dispute and artistic freedom has a long tradition in europe and is considered as positive and even necessary for individual and social progress. only totalitarian systems of power fear them. critical dispute, satire, humour and artistic expression should, therefore, enjoy a wider degree of freedom of expression and recourse to exaggeration should not be seen as provocation.”37 despite the trend of removing religious beliefs from the analysis of artistic freedom, and despite the trend of upholding the social relevance of freedom of artistic expression, it was still a long way to go for the court to provide artistic expression with full membership in the freedom of expression club as can be demonstrated with several visual arts cases resulting in early dismissals. in ehrmann and sci vhi v. france,38 the applicants were punished with criminal and civil sanctions for the art project “demeure du chaos / l’esprit de la salamandre” which consisted of large paintings and murals on the outer walls of the artist’s property, also a well-known art venue. the mayor of the city of lyon successfully challenged the propriety of the paintings (consisting, inter alia, of large images of skulls and salamanders) as contrary to the planning regulations which required that, by their appearance, any new constructions and old buildings had to be in harmony with existing neighbouring constructions, with the character of the sites and with the 34 id. at para. 61. 35 news on the release of the film available at: https://www.theguardian.com/film/2012/jan/31/visions-ofecstasy-film-18-certificate. [accessed on 6 september 2021]. 36 freedom of expression and respect for religious beliefs, council of europe parliamentary assembly, resolution 1510 (2006) adopted on 28 june 2006. 37 id. at para. 9. 38 ehrmann and sci vhi v. france, ecthr (chamber), app. no. 2777/10, decision (inadmissibility) of 7 june 2011. https://www.theguardian.com/film/2012/jan/31/visions-of-ecstasy-film-18-certificate https://www.theguardian.com/film/2012/jan/31/visions-of-ecstasy-film-18-certificate artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 112 landscapes in which they were situated. it was also mentioned that the property “domaine de la source” was in a position of joint visibility with the church of saint-romain au mont d’or and the manor-house of la bessée, both of which were enumerated on the secondary list of historic buildings, and that operations capable of altering the appearance of the property were subject to prior authorisation. the court dismissed the freedom of artistic expression claim as manifestly ill-founded the quality of the environment was a legitimate aim for restriction of the freedom. from another perspective one could argue that different aesthetics collided but the court again deferred to national concepts as legitimate restrictions. in karttunen v. finland,39 the preliminary issue was whether the closing down the exhibition entitled “the virgin-whore church” in a public art gallery, and seizure of photographs of young women in sexual poses and acts by the order of a public prosecutor, were to be discussed within the context of freedom of expression. the idea for the exhibition was to demonstrate how pornographic material involving children was easily accessible because all the photographs used were downloaded from free internet pages. however, it was the artist who was charged with possessing and distributing obscene material. although she was not convicted the photographs were confiscated. the application expressly relied on the freedom of artistic expression with arguments: “that her right as an artist to freedom of expression had been violated. she had incorporated the pornographic pictures in her work in an attempt to encourage discussion and raise awareness of how wide-spread and easily accessible child pornography was. porn actors wanted to have as much publicity as possible, and therefore the need to protect their reputation or private life was of less importance than her right to freedom of expression.”40 the court dismissed the application as inadmissible, having found that protection of morals and interests of minors was a legitimate aim sufficiently balanced with the impugned measure. the fact that it was manifestly perceived as an artistic concept displayed in a public art gallery did not persuade the court to open the discussion on freedom of artistic expression.41 mere reference to sexual morality generally prompts the court to defer to national judgments as long as the formal conditions, in terms that there exist lawfulness and domestic assessment of different considerations, are met. there are only two cases dealing with images and performances where the european court of human rights seemingly upheld freedom of artistic expression as 39 karttunen v. finland, ecthr (chamber), app. no. 1685/10, decision (inadmissibility) of 10 may 2011. 40 id. at para. 15. 41 ironically, in 2019 the european court of human rights upheld the freedom of expression claim raised by the producer of erotic films (with around 95% erotic scenes) who was granted the license for distribution but not the license for reproduction of these films on the ground that there was a pending investigation regarding the criminal offense of illegal production and distribution of pornography, and that this could negatively affect minors. due to the contradictory decisions of local authorities the producer remained deprived of the license even after the investigation and other proceedings were dropped. the court found that such deprivation was disproportionate to the legitimate aim pursued. this case, which ultimately upheld erotic films claims, thus capitalised more on artistic expression than karttunen who criticised such practice. see, pryanishnikov v. russia, ecthr, app. no. 25047/05, judgment (merits) of 10 september 2019. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 113 opposed to imposed restrictions. while the court did not challenge that it was the art that was subject to restrictions, taking a closer look it seems that the court valued the art at its political face value rather than on its intrinsic and autonomous value, or its artistic, subversive and critical societal role. in the first case, vereinigung bildender künstler v. austria,42 the issue was whether the judicial injunction prohibiting the otto mühl’s painting “apocalypse” displayed in the gallery of the applicant in vienna, within the exhibition “the century of artistic freedom” (“das jahrhundert künstlerischer freiheit”), was in breach of article 10 of the convention. the large collage portrayed 33 various public figures, such as mother teresa, the austrian cardinal hermann groer and the former head of the austrian freedom party (fpö) mr jörg haider, in sexual positions. walter meischberger, a former secretary general of the fpö and member of the parliament, was also portrayed in the apocalypse, which led to his private lawsuit against the gallery on the ground that his reputation was damaged. as he ultimately succeeded, the artistic association turned to the court. here artistic freedom of expression was at the heart of the matter. having made the observation that freedom of expression also protects information and ideas which offend, shock or disturb the state or any sector of the population, the court then opined: “those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.”43 however, this is where the recognition of art as a protected expression ends. the court did provide protection but to the political expression, since the court centred its attention on the particular public figure, walter meischberger, to whom the criticism was addressed. the rationale of the court’s finding was not the value of art but its downright political content “(i)n the present case, the court considers that the painting … related to mr meischberger's public standing as a politician from the fpö. the court notes that in this capacity mr meischberger has to display a wider tolerance in respect of criticism.”44 the authority invoked by the court was lingens v. austria, the landmark case on political expression.45 the protection provided was in essence political not artistic, and not because of the possible indirect political implications of art but rather because of its political reading by the court. the similar take on political art was undertaken by the court in the mariya alekhina and others v. russia (pussy riot case).46 members of a female punk band, known for impromptu performances and political activism were convicted of hooliganism motivated by religious hatred for an attempt to stage a performance of their song “punk prayer – virgin mary, drive putin away'' in the altar of the russian orthodox church in moscow. the sentence of two years in prison was shortened for a couple of months due to an amnesty. in addition, the video material made during the performance was banned and removed from the internet as “extremist”. in assessing freedom of expression as part of the claim, the court decided to pair artistic with political expression as it found that 42 vereinigung bildender künstler v. austria, ecthr, app. no. 68354/01, judgment (merits) of 25 january 2007. 43 id. at para. 26. 44 id. at para. 34. 45 id. 46 mariya alekhina and others v. russia, ecthr, app. no. 38004/12, judgment (merits) of 17 july 2018. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 114 “that action, described by the applicants as a ‘performance’, constitutes a mix of conduct and verbal expression and amounts to a form of artistic and political expression covered by article 10.”47 manifestly the court here was uncertain how to qualify this particular incident, which echoes doctrinal dilemmas in how to categorize any expression in the first place: is it the subject matter of the speech or the medium of communication: “the identity of the subject matter of the speech, and the medium of the communication, for example, may be crucial, and defy the scheme of prior categorisation by their singularity or complexity.” (kearns, 2013, 151) the court notably did not engage in an assessment of the artistic value of the performance. it does not seem to have been needed because the rest of the court’s reasoning rests solely on the political expression methodology, including the fact that the reason for the performance and content of the performed song were aimed at political dialogue within society. given that the imposed sanctions were harsh the court found a breach of article 10 but the issue here is whether the artistic part of the claim was only incidental and possibly irrelevant. in reality, it was the political rather than artistic expression that was vindicated in this case. it further demonstrates the court’s unwillingness to appreciate the autonomous and independent role of art in a society but instead treats art as relevant only if it carries a direct political message which per se is suitable for traditional political expression methodology. this is in line with the general trend of the court’s jurisprudence in relation to political expression and political art: “it is evident from the majority judgment (in karata v. turkey) in particular that it is an advantage for controversial art before the court to have a political dimension. this is compatible with the court’s informal but definitive decision to prize political expression as the expression most in need of protecting, a commitment that has infiltrated its case law ab initio.” (kearns, 2013, 173)48 that the court appreciates art only due to its face political value with messages directed against political figures is well illustrated by yet another case also involving performance art that was decided around the same time as the pussy riot case. unlike the latter, in sinkova v. ukraine49 the performance art staged at the eternal glory monument in kiev was not addressed to any particular political figure sinkova and two other artists staged a performance of frying eggs in a pan on the eternal flame placed within the monument devoted to 32 soldiers and an unknown soldier who were killed in the second world war. sinkova was sentenced to two years in prison, suspended for three years, for the criminal offence of desecration of tombs. the artist’s argument was that she did not have any intention in desecrating tombs or to ridicule the heroism of soldiers but that “she had protested against wasteful use of natural gas and had tried to attract public attention to that issue. in her opinion, the funds used for maintaining eternal flames throughout the country would better serve their purpose if used to improve the living standards of war veterans.”50 while the court accepted that this was a case of freedom 47 id. at para. 206. 48 karata v. turkey was the case about the prohibition of poems and punishment of karata on the basis of disseminating separatist propaganda. karataş v. turkey, ecthr (gc), app. no. 23168/94, judgment of 8 july 1999. 49 sinkova v. ukraine, ecthr, app. no. 39496/11, judgment (merits) of 27 february 2018. 50 id. at para. 87. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 115 of artistic expression it did not find the freedom to have been breached by the criminal conviction. it went on to argue that there had indeed been desecration of the tomb: “the court cannot agree with the applicant’s submission that her conduct at the memorial could not be reasonably interpreted as contemptuous towards those in whose honour that memorial had been erected. according to her logic, the only thing that mattered about the eternal flame was the natural gas required to keep it burning.”51 therefore, the court did not make any meaningful attempt to appreciate the social critique espoused by the artist. as noted by andra matei: “the applicant’s intention is removed in its entirety from the analysis of her actions; the artistic and satirical nature of her performance are blatantly ignored.” (matei, 2018, 9) notably, the judgment was adopted by a thin majority where three out of seven judges dissented precisely on the ground of appreciating the arts’ engagement with social contexts, which inevitably resulted in a different reading of the impugned act: “their performance, as she explained, was aimed at drawing public attention to the incompatibility of the official pathos when it came to remembrance of the second world war with the miserable situation of surviving war veterans. together with other participants, she sought to highlight what they perceived as the superfluous nature of an eternal flame which, whilst honouring the sacrifices of those who fell in the service of their country, did little to support war veterans who desperately needed the state’s limited resources. (...) this satirical performance necessarily included filming the process of frying eggs to be later put on the internet with the relevant commentary. by filming and subsequently disseminating the video, supplemented by the song and text, the applicant and other participants chose to express their criticism through a rude and irreverent satire.”52 the most valuable part of the judgment lies in the joint dissenting opinion which illustrates how judges are actually able to understand the concept of art but usually opt to turn the blind eye conflicting views of art stand next to each other in one judgment. appreciation of art by minority dissenters will hopefully become the mainstream in court’s jurisprudence on artistic expression: “the applicant’s satire had done exactly what this art frequently does: it transferred the viewer’s attention from an object to its social context. an artistic gesture might demonstrate the conditionality of established value boundaries, but it does not reject them.”53 the sinkova case mandates commentary and criticism. while similarities with its contemporary case pussy riot abound, in terms of critical attitude displayed in sacred 51 id. at para. 110. 52 sinkova v. ukraine, ecthr, app. no. 39496/11, judgment (merits) of 27 february 2018, joint partly dissenting opinion of judges yudkivska, motoc and paczolay, pp. 23-24. 53 id. at 24. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 116 places, and in criminal sanctions for the staged performance, differences in outcome of these two cases is startling. there are two possible explanations but none of them serves the purpose of promoting freedom of artistic expression. the first is that the criminal sanction in sinkova was more lenient given that this was a suspended prison sentence (which still does not change the fact that a criminal record with a number of negative consequences remains in place, or that there was a variety of other less intrusive measures that could have served the same purpose), and second, as argued here in this article, is the fact that the critique was not addressed to any particular political figure which removed “political” value from the performance. indeed, the court makes no mention of “political expression” in its judgment. had it been any different, it could have attracted the court’s affections for promoting the freedom of expression. one might indeed raise the question in relation to sinkova v. ukraine: what happened to the protection of information and ideas that offend, shock or disturb the state or any sector of the population? 5. cross-examining the european court of human rights the relationship between law and art is notoriously difficult. in relation to visual arts “the law continues to struggle with images and its deep ambivalence toward images remains intact.” (douzinas, nade, 1999, 9) the usual consequence is dismissal of artistic arguments and rationales in the court of law.54 as pointed by paul kearns “(a)rtistic freedom is the cinderella of liberties, seldom in the spotlight, and never in the limelight.” (kearns, 2013, 150) the european court of human rights has only nominally recognized visual and performance arts as a form of protected expression but effectively withheld international protection. potentially there are several reasons for such a sombre outcome for visual and performance arts. it can be argued, as eleni polymenopoulou does, that artistic freedom as a human right has a sui generis nature while art as such easily escapes definitions. (polymenopoulou, 2016, 514-515) the one is evident in the court’s (dubious) differentiation between different types of expression. the court indeed draws a line between political, commercial, artistic, academic, symbolic and other forms of speech which nearly automatically defines the tolerable margin of appreciation of states and thus protection to be given to a particular type of expression.55 the case law of the court confirms that protection of art is only incidental and only if it is substantially political. the court is willing to uphold the freedom only if the expression has manifest and an open political message in relation to particular public figures despite the court’s own vow that article 10 applies not only to “‘ideas’ that are favourably received or regarded 54 there are those who naturally disagree and find that law and arts do make allies in many different respects, and that they are mutually supportive and comparable (merryman, urice, elsen. 2007, xxv-xxvi). 55 “the strasbourg court’s recalcitrant use of the margin of appreciation doctrine, which surrenders the regulatory initiative to the legal mechanisms of the contracting states, means that art that is considered in some way morally delinquent will be at the mercy of the often arbitrary, and perhaps unduly oppressive, moral consensus of a particular state, or worse, one or more of the state’s even more morally-restrictive provincial regions.” kearns, 2013, 160. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 117 as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any section of the population.”56 another reason could be the simple misunderstanding of the concept of art. the court’s take on art is manifestly superficial and nearly without any genuine interest in understanding the multiple layers of an artistic work: “the lack of demonstrable, necessary and sophisticated knowledge on the part of the relevant courts leads, ultimately, to injustice being done to art and its associated processes through a surprising degree of apparent judicial ignorance of art’s unique ontology and method of operating, and its key valued role as a critical-moral counterbalance to established morality.”(kearns, 2013, 152) the court perceives art in its classical forms not only judging it solely on the basis of its ethics and aesthetics but also by downgrading the ethical and esthetical tests to parochial and local standards. the statement of arthur danto (in his book what art is referring to the question people usually ask: “but is it art?”) is appropriate here: “at this point i have to say that there is a difference between being art and knowing whether something is art. ontology is the study of what it means to be something. but knowing whether something is art belongs to epistemology—the theory of knowledge—though in the study of art it is called connoisseurship.” (danto, 2013, 5) danto firmly and argumentatively claims that one needs to grasp the knowledge of the history of art and the character of art and artistic theories. his comprehensive approach follows the development of art history as a linear progression of styles and social responses to arts. the court did admit that defining art is a difficult task but the question is whether this justifies the failure of the court to appreciate the contribution of artistic ideas, as offensive and shocking as they can be, for the exchange of ideas within the society at large, as it ultimately will have effect in any stricto sensu political discussion. contemporary art is per definition socially engaged, it is always political lato sensu. it is not uncommon that artists suffer consequences concomitant to sanctions imposed on political activists. another common feature of cases dealing with artistic freedom in relation to visual and performance arts is that, while they nominally recognize the relevance of art for the exchange of ideas and information which per se is relevant for democracy, they still restricted them to the benchmark of public morals, the morality of the society at large (schabas, 2015, 472), or to the morals of certain groups (religious rights as rights and interests of others). this implies that the court’s scrutiny is based on ethical and aesthetical considerations. the court has obviously had trouble, or has been simply unwilling to 56 müller and others v switzerland, ecthr, app. no. 10737/84, judgment (merits) of 24 may 1988, para. 33 (emphasis added). artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 118 appreciate and understand the complexity of art, fiction, symbolic language, hyperbole, imagination, fine language of creative techniques, and arts subversive critical power. instead, the court has been more willing to treat the language of visual and performance arts literally, limiting it, sometimes superficially, to its face value. the language of art is not opinion in itself, it is just a medium, where the opinion expressed through this language is practically never assessed by the court. therefore, “the strasbourg court is quite unaware that art which seems to gratuitously contravene standards of accepted morality actually does so for a reason, which is to test the continuing validity of that morality.” (kearns, 2013, 181) while political expression, almost without exception, carries with it direct and plain meaning and is to be understood on its face, it is almost never the case with artistic expression – no matter how vulgar, excessive, direct or shocking the expression is, such expression is never an end in and of itself but rather a trajectory to another message or point that wants to be made. the un special rapporteur argued in favour of this subtle and simultaneously subversive constitutive element of art: “artistic expressions and creations do not always carry, and should not be reduced to carrying, a specific message or information. in addition, the resort to fiction and the imaginary must be understood and respected as a crucial element of the freedom indispensable for creative activities and artistic expressions: representations of the real must not be confused with the real.”57 as the authors of the art organization creative time declared in their introduction to the living as form socially engaged art from 1911-2011: “to be fair, this kind of work [social art] does not hang well in a museum, and it isn’t commercially viable.” (pasternak, 2012, 8) what they do have in common is the audience to which they refer because it is always society at large. so this indirect, subtle and underlying message in artistic work is to be found sometimes through quite different mediums that on its face could be held as inappropriate, at least. such an unfavourable status of art in the jurisprudence of the court has not remained unnoticed and some scholars have made suggestions on how to improve the protection of artistic expression or how to overcome impediments imposed by the court itself. scholars argue that it is art as such which should be granted standing in human rights discourse. for example, andra matei suggests setting up the european standard on morality as an important step towards a better protection of artistic freedoms.58 eleni polymenopoulou 57 report of the special rapporteur in the field of cultural rights, farida shaheed: the right to freedom of artistic expression and creativity, a/hrc/23/34, 14 march 2013, para. 37. 58 “while setting a european standard on morality based on the opinion of the majority might seem absurd and incompatible with the definition of a declaration of rights such as the convention, dissipating the uncertainty that surrounds the boundaries of the public morals clause by describing its scope and meaning in the court’s case-law could be an important step towards a better protection of artistic freedom, a freedom constantly limited by the “legitimate aim” of protecting morals.” matei, 2018, 10. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 119 suggests that it is the specificity of arts that should be treated as a free-standing defence in article 10 cases (polymenopoulou, 2016, 535). paul kearns advocates the recognition of the autonomy of art (kearns, 2013, 151). these arguments resonate the rationale of the u.s. supreme court and its take on protection of art within the first amendment freedom of speech even though artistic speech may not necessarily be “communicative” or “discernible” (greene, 2004-2005, 366-367). however, the proposition put forward in this article is that the visual and performance arts, with their specific communication tools, should be appreciated and protected in the same manner as political expression due to its intrinsic social engagement, because artists “more often than not perform a similar role: they highlight our prejudices, our taboos, our unspoken repressions and conventionality and seem to have no fear in challenging the social and political realities of our time.” (matei, 2018, 9) therefore, it is not only political art but visual and performance arts generally, outside their particular political context, that needs judicial recognition for the very same reasons the court has used in dismissing limitations of political expression. such understanding of art, as a means of expression and creativity, has been well described by the un special rapporteur: “humanity dignifies, restores and reimagines itself through creating, performing, preserving and revising its cultural and artistic life (....) cultural heritage, cultural practices and the arts are resources for marshalling attention to urgent concerns, addressing conflicts, reconciling former enemies, resisting oppression, memorializing the past, and imagining and giving substance to a more rights-friendly future.”59 these features contribute to the public debate to the same extent as a political speech, so the same level of protection should be provided to enable the exchange of ideas and information. even more so, since today the public is no longer meant to take and consume art passively but to get engaged with art and thereby get involved with the social (political, religious or other) dimension of the artwork. the evolution of art inevitably led to the evolution of the spectators as well. it engages the audience, unlike art that was practiced in previous times. this brings us to another loophole in the court’s jurisprudence: the audience. freedom of expression is not only about artists and their right to express themselves, but it is equally the right of the audience to receive ideas: “being part of the audience, receiving and witnessing cultural and artistic actions should therefore also be considered an important part of taking part in cultural life. this too is a core part of freedom of artistic expression.”60 if the modern concept of artwork that depends on its audience is not enough for such assessment, then the wording of article 10 should suffice. the court did seemingly engage in protecting the audience but that was restricted to the particular segment of the public that was perceived to be adversely affected by the art. however, the obligation to protect the right of the general public to receive information in the form of art seems to have been absent from the court’s assessments. 59 report of the special rapporteur in the field of cultural rights, a/hrc/37/55, 4 january 2018, para. 2. 60 id. at para. 75. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 120 when referring to the judicial assessment of an artwork, it seems that it all comes down to the question of difference between “equality and quality, between participation and spectatorship, and between art and real life.” (bishop, 2012, 38) however, this seems to be an outdated approach to art. martin krenn claims: “art takes a stand against censorship, poses (new) aesthetic questions and resists, depending on its political pretenses and surroundings, reigning power structures.” (krenn, 2019, 69) in other words, if the purpose of art is to pose questions to the audience to reconsider the world that we live in, then art and artists have every right to practice their art according to their own sensibilities and aesthetics values: “art is critical to all societies; it ensures longevity and interprets our belief systems. cultural, religious, political, and philosophical norms are expressed, preserved, explored, and evaluated through the arts.” (wexler, sabbaghi, 2019, 10) therefore, art can and should be used to encourage reassessment and change as well as tolerance and heterogeneity. it also can and should be a critical tool for creative growth of humanity and magnanimity of human achievements. 6. conclusion we hope that the time will come to bless the cinderella of all liberties with a happy end. valuing the visual and performance arts exclusively as an exercise in ethics and aesthetics has been abandoned for a long time and it seems that contemporary theory and practice invariably assumes the societal role of art, its potential subversive and transformative function within a society at large, and, ultimately, its lato sensu political value. this is why the approach of the european court of human rights, sometimes too rigid and often too artificial when categorizing expressions, almost inevitably leads to dismissing artistic freedoms in the realm of visual and performance arts. artistic expression does have the same beneficial potential for a democratic society as political expression stricto sensu and therefore, the former could be equally protected as the latter. there also seems to be another weakness in the court’s approach to artistic expression as the court too easily assumes that political speech is available and unhindered, so the court comfortably relegates artistic speech to spheres of aesthetics and amusement. make this assumption fail or just assume that limitations of political speech have evolved and become refined over the time and you will find the arena for political debate suddenly closed – in the midst of proclaimed liberal democracies. this is why it is important to reclaim art’s right to speak as it can powerfully challenge political truths and lies, sometimes even more on fundamental societal issues and stereotypes for which political speech cannot provide remedy. by deliberately staying on the artificial surface of speech characterization, judging by who speaks rather than what the message is, the court contributes little to the “debate” that seems so central in the court’s analysis of expressions. sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 121 visual and performance arts are a powerful yet fragile instrument for delivering the debate to society at large, to the very same society to which political speech owes its supremacy. conventions, declarations, and legislation american convention on human rights, november 22, 1969, https://www.cidh.oas.org/ basicos/english/basic3.american%20convention.htm. arab charter on human rights, https://digitallibrary.un.org/record/551368. austrian basic law of 21 december 1867 on the general rights of nationals in the kingdoms and länder represented in the council of the realm, december 21, 1867, https://www.ris.bka.gv.at/dokumente/erv/erv_1867_142/erv_1867_142.pdf. european convention for the protection of human rights and fundamental freedoms as amended by protocol no. 15, november 4, 1950, https://rm.coe.int/1680a2353d. european union charter of fundamental rights, october 26, 2012, oj c 326, 26.10.2012, p. 391–407, https://eur-lex.europa.eu/eli/treaty/char_2012/oj. international covenant on civil and political rights, december 16, 1966, https://www. ohchr.org/en/professionalinterest/pages/ccpr.aspx. international covenant on economic, social and cultural rights, december 16, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx. united nations convention on the rights of the child, november 20, 1989, https://www. ohchr.org/en/professionalinterest/pages/crc.aspx. united nations universal declaration on human rights, december 10, 1948, https:// www.un.org/en/about-us/universal-declaration-of-human-rights. resolutions and reports freedom of expression and respect for religious beliefs, council of europe parliamentary assembly, resolution 1510 (2006), 28 june 2006. united nations universal. report of the special rapporteur in the field of cultural rights, farida shaheed: the right to freedom of artistic expression and creativity, a/hrc/23/34, 14 march 2013. report of the special rapporteur in the field of cultural rights, a/hrc/37/55, 4 january 2018. european court of human rights animal defenders international v. united kingdom, [gc], app. no. 48876/08, judgment of 22 april 2013. delfi v. estonia, [gc], app. no. 64569/09, judgment of 16 june 2015. ehrmann and sci vhi v. france, ecthr (chamber), app. no. 2777/10, decision (inadmissibility) of 7 june 2011. artistic expression: freedom or curse? the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 122 hertel v. switzerland, app. no. 25181/94, judgment of 25 august 1998. karataş v. turkey, ecthr (gc), app. no. 23168/94, judgment of 8 july 1999. karttunen v. finland, ecthr (chamber), app. no. 1685/10, decision (inadmissibility) of 10 may 2011. lingens v. austria, ecthr, app. no. 9815/82, judgment of 8 july 1986. mariya alekhina and others v. russia, ecthr, app. no. 38004/12, judgment (merits) of 17 july 2018. mouvement raëlien suisse v. switzerland, [gc], app. no. 16354/06, judgment of 13 july 2012. müller and others v switzerland, ecthr, app. no. 10737/84, judgment (merits) of 24 may 1988. otto-preminger-institut v. austria, ecthr, app. no. 13470/87, judgment (merits) of 24 september 1994. pryanishnikov v. russia, ecthr, app. no. 25047/05, judgment (merits) of 10 september 2019. s. and g. v. united kingdom, commission, app. no. 17634/91, decision on inadmissibility of 2 september 1991. sinkova v. ukraine, ecthr, app. no. 39496/11, judgment (merits) of 27 february 2018. steel and morris v. united kingdom, app. no. 68416/01, judgment of 15 february 2005. tvereinigung bildender künstler v. austria, ecthr, app. no. 68354/01, judgment (merits) of 25 january 2007. twingrove v. united kingdom, ecthr, app. no. 17419/90, judgment (merits) of 25 november 1996. bibliography arnheim, r., (1992) “the reading of images and the images of reading”, to the rescue of art: twenty-six essays. university of california press, berkeley, pp. 45-52. beardsley, m., (1982) the aesthetic point of view: selected essays, cornell university press, cornell. bishop, c., (2012) “participation and spectacle: where are we now?” living as form socially engaged art from 1911-2011, thomson, n. ed., creative time books, new york. buchloh, b., (1990) “conceptual art 1962–1969: from the aesthetic of administration to the critique of institutions,” october, winter, vol. 55, pp. 105-143. https://doi. org/10.2307/778941 https://doi.org/10.2307/778941 https://doi.org/10.2307/778941 sanja djajić, dubravka lazić the age of human rights journal, 17 (december 2021) pp. 97-124 issn: 2340-9592 doi: 10.17561/tahrj.v17.6269 123 danto, a., (1964) “the artworld”, journal of philosophy, vol. 61, no. 19, pp. 571-584. https://doi.org/10.2307/2022937 danto, a., (1984) “the death of art”, haven publications, new york. danto, a., (2013) what art is, yale university press, new haven & london. dickie, g., (1969) defining art, american philosophical quarterly, vol. 6, no. 3, pp. 253-256. dickie, g., (1971) aesthetic: an introduction, pegasus, indianapolis. dickie, g., (1974) art and the aesthetic: an institutional analysis, cornell university press, cornell. douzinas, c., nade, l., (1999) law and the image: the authority of art and the aesthetics of law, university of chicago press, chicago. dow, k., (2017) human earrings, 2 february 2017, http://www.reprosoc.com/ blog/2017/4/11/human-earrings. gaut, b., (2005) “the cluster account of art defended”, the british journal of aesthetics, vol. 45, no. 3, 2005, pp. 273–288. https://doi.org/10.1093/aesthj/ ayi032 greene, d., (2004-2005) “why protect political art as political speech”, hastings communications and entertainment law journal (comm/ent), vol. 27, no. 2, pp. 359-382. janis, m.v., kay, r., bradley, a.w., (2008) european human rights law: text and materials, oxford university press, oxford. kearns, p., (2013) freedom of artistic expression: essays on culture and legal censure, hart publishing, oxford. krenn, m., (2019) dialogical interventions – art in the social realm, de gruyter, berlin. lewis, t., (2002) "human earrings, human rights and public decency" entertainment law, vol. 1, no. 2, pp. 50-71. https://doi.org/10.1080/14730980210001730421 matei, a., (2018) art on trial. freedom of artistic expression and the european court of human rights, available at ssrn: https://ssrn.com/abstract=3186599 or https:// doi.org/10.2139/ssrn.3186599 merryman, j.h., urice, s.k., elsen, a.e., (2007) law, ethics, and the visual arts 5th ed., kluwer law international. naidus, b., (2005) “teaching art as a subversive activity”, the arts, education, and social change; little signs of hope, (eds. powel, m.c., marcow-speiser, v.), p. lang, new york, pp. 169-184. pasternak, a., (2012) “introduction”, living as form socially engaged art from 1911-2011, thomson, n. ed., creative time books, new york. https://doi.org/10.2307/2022937 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of established art by embracing experience in real time/space as artistic value, zurich university of the arts, zurich. schabas, w. a., (2015) european convention on human rights: a commentary, oxford university press, oxford. vogel, a., (1974) film as a subversive art, random house, new york. weitz, m., (1956) “the role of theory in aesthetics”, the journal of aesthetics and art criticism, vol. 15, no. 1, pp. 27-35. https://doi.org/10.1111/1540_6245. jaac15.1.0027 wexler, a., sabbaghi, v., (2019) bridging communities through socially engaged art, routledge, new york. https://doi.org/10.4324/9781351175586 zangwill, n., (1995) “the creative theory of art”, american philosophical quarterly, vol. 32, no. 4, 1995, pp. 307-323. received: april 1st 2021 accepted: july 19th 2021 https://doi.org/10.1177/0888325420928417 https://doi.org/10.1177/0888325420928417 https://doi.org/10.1093/hrlr/ngw011 https://doi.org/10.1111/1540_6245.jaac15.1.0027 https://doi.org/10.1111/1540_6245.jaac15.1.0027 https://doi.org/10.4324/9781351175586 artistic expression: freedom or curse? some thoughts on jurisprudence of the european court of hum abstract 1. introduction 2. background 3. theoretical considerations of visual and performance arts 4. international law, the european court of human rights and freedom of expression 5. cross-examining the european court of human rights 6. conclusion conventions, declarations, and legislation resolutions and reports european court of human rights bibliography the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 24 the human right to health: a retrospective analysis after 70 years of international recognition maría dalli1 abstract: in 1948, the general assembly of the united nations adopted the first international text recognising universal human rights for all; the universal declaration of human rights. article 25 recognises the right to an adequate standard of living, which includes the right to health and medical care. on the occasion of the 70th anniversary of the declaration, this article presents an overview of the main developments that have been made towards understanding the content and implications of the right to health, as well as an analysis of some specific advancements that aim to facilitate the enforcement thereof. these include: a) the implication of private entities as responsible for right to health obligations; b) the universal health coverage goal, proposed by the world health organization and included as one of the sustainable development goals; and c) the individual complaints mechanism introduced by the optional protocol to the international covenant on economic, social and cultural rights (adopted on the 10th december 2008, 60 years after the udhr). keywords: right to health, united nations, human rights obligations, universal health coverage, individual complaints. summary: i. introduction: the recognition of the human right to health. ii. general comment no 14 on the right to health: content and obligations involved. ii.1. components and elements of the right to health. ii.2. types of obligations. iii. business enterprises as responsible for right to health obligations? iv. the universal health coverage goal. v. monitoring the right to health: the individual complaints mechanism. vi. conclusion. vii. references. i. introduction: the recognition of the human right to health in 1948, the recently created united nations (the un) passed the first international text recognising universal human rights for all people; the universal declaration of human rights (in the following, the udhr). of the rights included, article 25 recognises the right to an adequate standard of living, which includes the right to health and medical care: ‘everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social 1 postdoctoral researcher, human rights institute, university of valencia, spain (maria.a.dalli@uv.es). for her postdoctoral research, the author receives funding from the generalitat valenciana and the european social fund. this research was conducted as part of the research project der2016-78356-p, funded by the spanish ministry of economy and competitiveness. maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 25 services’. on the 70th anniversary of the declaration, this article analyses the main developments that have been made towards understand the implications of the right to health as well as some specific advancements that aim to strengthen its enforcement. in 1966, almost two decades after the passing of the udhr, two separate treaty instruments recognised civil and political rights, on the one hand, and economic, social and cultural rights on the other. the international covenant on economic social and cultural rights (in the following, the icescr) came into force in 1977, including in article 12 the recognition of the right to the highest attainable standard of physical and mental health. other un treaties that are narrower in scope recognise the right to health, amongst other human rights whilst focussing on the needs of specific groups. for example, the convention on the elimination of all forms of discrimination against women of 1979 (the cedaw, articles 11.1.f, 12 y 14.2.b) and the convention on the elimination of all forms of racial discrimination of 1965 (the cerd, article 5.e.iv). furthermore, the right to health is recognised as a human right according to other systems of protection, such as the european, the inter american and the african human rights protection systems. for example, the european social charter recognises the right to protection of health in article 11, as well as the right to social and medical assistance in article 132. this article focuses on the study of the right to health recognised by the un system, with two main objectives. firstly, to summarise the main developments made regarding the content and implications of the right. in this regard, the treaty body in charge of monitoring the implementation of the icescr is the committee on economic, social and cultural rights (hereafter, the cescr). the cescr has developed the rights included in the icescr through the general comments (the gc). gc no 14 focuses on the right to the highest attainable standard of health. given this interpretation it is possible to differentiate a set of concrete rights as well as a number of elements that define what the broader right to health means. additionally, gc no 14 develops a typology of obligations for states in order to ensure its adequate implementation. following this introductory section, section 2 will focus on these developments to draw an overview of the content of the right and the obligations to ensure it. the second objective of this article is to analyse three significant developments which facilitate the implementation and enforcement of the right to health: firstly, the advancements towards the understanding of private entities as responsible for right to health obligations (analysed in section 3); secondly, the universal health coverage goal, included as one of the sustainable development goals (analysed in section 4) and; finally, the individual complaints mechanism regulated by the optional protocol to the icescr, that came into force on the 5th may 2013 (analysed in section 5). 2 an analysis of the interpretation of the right to health through the study of the case law developed by the european committee of social rights can be found at lougarre, c., 2015. the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 26 ii. general comment no 14 on the right to health: content and obligations involved in the following, attention is paid to the content of the right to health as well as to the obligations involved. the analysis of the gc no 14 by the cescr will be fundamental in this respect. the cescr has conducted an accurate and comprehensive interpretative work of the rights included in the icescr, making it possible to consider that economic, social and cultural rights can have the same enforceability level than civil and political rights (mendiola, 2009: 27). ii.1. components and elements of the right to health the content of the right to health might seem, at first glance, vague or lacking a definite content. nevertheless, it is possible to define a set of concrete components, i.e. specific rights. the specific rights that form the right to health must necessarily comply with a number of elements or characteristics. firstly, the right to health can be understood as a ‘cluster of rights’3. article 12.1 of the icescr formulates the right in a broad way as the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. more specifically, article 12.2 mentions a number of measures to take in order to fully realise the right, which can be considered as examples that illustrate its content (gc no 14, para. 13). these measures are: a) the right to maternal, child and reproductive health; b) the right to healthy natural and workplace environments; c) the right to prevention, treatment and control of diseases; and d) the right to health facilities, good and services. according to gc no 14 (para. 14 to 17), the aforementioned specific rights include, for instance, the improvement of child and maternal health, access to sexual and reproductive health services and to family planning, pre-natal and post-natal care (para. 14). furthermore, the cescr understands that article 12.2.b) regarding the right to healthy natural and workplace environments not only includes measures on occupational and public health, but also attention to other social determinants such as an adequate housing and proper nutrition, discouraging the use of harmful substances (gc no 14, para. 15). similarly, the prevention of diseases again includes attention to social determinants of health, for instance, education, economic development and gender equity. thus, at the heart of the gc no 14 is the idea that social-economic and environmental determinants are a component of the broader right to health (gc no 14, para. 11). however, gc no 14 seems more restrictive when referring to the treatment of diseases (included in article 12.2.c icescr), only mentioning the creation of a system of urgent medical care and the provision of care in emergency situations (para. 16). more extensively, the right to health services (article 12.2.d icescr) should include, amongst others, access to preventive, curative and rehabilitative health services, regular screening programs, the provision of essential drugs, mental care as well as the participation of the 3 according to laporta, rights can be derechos-racimo, as inclusive of a variety of ‘sub-rights’ in the form of liberties, positive or welfare rights or rights to certain legal status or to public goods (laporta, 2004: 300). maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 27 population in the provision of these services and the decision of the policies related to them (para. 17). secondly, the right to health should be defined by the following elements, as characteristics that the cescr has described through the gc and that similarly apply to other icescr rights: a) availability. sufficient quantity of functioning health care facilities, goods and services (gc no 14, para. 12a). b) accessibility. health care services must be accessible to everyone without discrimination (gc no 14, para. 12b). it includes both physical and economic accessibility (or affordability). all health services must be physically reachable, including in rural areas, and accessible for all people, especially for vulnerable group populations. likewise, health services and goods, either publicly or privately provided, must be affordable to all people, and payments must be based on the principle of equity. the element of accessibility also includes the prohibition of discrimination when accessing the right to health as well as accessible information regarding health issues. c) acceptability. all health facilities, goods and services must be respectful of medical ethics and of the culture of individuals and communities, as well as sensitive to gender and life-cycle requirements (gc no 14, para. 12c). d) quality: health care services must be scientifically and medically appropriate and of a good quality (gc no 14, para. 12d). ii.2. types of obligations the ratification of international human rights treaties binds states parties to a number of commitments. once again, gc no 14 is essential for the study of right to health obligations. however, it is worth mentioning three relevant precedents in the process of formulating the types of human rights obligations. first, the limburg principles on the implementation of the icescr of 1986. second, the cescr drafts general comment no 3 in 1990 regarding icescr and the nature of the obligations involved. it focuses on the obligation of progressive realization included in article 2.1 icescr and differentiates between obligations of conduct and obligations of result. these obligations are further specified for the various rights in the corresponding comments. while particularities may exist depending on the specific right, the meaning of these obligations rarely varies: general obligations include positive and negative duties (to do and not to do), which are subject to progressive realisation by states, excepting for those minimum obligations that require immediate implementation. third, the maastricht guidelines on violations of economic, social and cultural rights of 1997 understands that there are obligations to respect, protect and fulfil as well as obligations of conduct and of result. regarding the implementation of the right to health, the cescr defines in gc no 14 a typology of obligations for states parties: general obligations, progressive realisation and minimum obligations. as for the general obligations, according to para. 33, ‘the obligation to respect requires states to refrain from interfering directly or indirectly with the enjoyment of the right to health’. an example of the obligation to the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 28 respect is to refrain from limiting equal access to everyone, for instance denying access to health care services for particular groups. ‘the obligation to protect requires states to take measures that prevent third parties from interfering with article 12 guarantees’. for instance, the obligation to protect demands the supervision of the activities of private providers to ensure that privatisation does not interfere with the implementation of the right. finally, the obligation to fulfil requires states ‘to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of the right to health’. this implies, for example, full recognition of the right to health in the national legal systems and the adoption of a national health policy plan. when implementing the right to health, state parties must realise their obligations progressively. the obligation to progressive realisation is included in article 2.1 of the icescr: it implies the adoption of measures to the maximum of the available resources in order to progressively achieve the fully realisation of the rights. the expression ‘to take steps’ used by the icescr is illustrative to understand what this obligation implies. accordingly, it entails moving forwards towards the full realisation of the recognised rights. however, while it does not have immediate requirements, this must not be interpreted ignoring any significant implications. in this sense, state parties must use their available resources as well as justify any retrogressive measures. this connects to the correlative obligation that prohibits retrogressive measures. likewise, these measures, if taken deliberately, may also entail a violation of the covenant provisions (sepúlveda, 2006: 124). añón has reflected extensively on the implications of this obligation and specifically, on the limits to the adoption of retrogressive measures affecting social rights (añón, 2016). if these retrogressive measures are adopted, the state must prove a number of aspects, such as having considered other alternatives, the use of the available resources and the justification of the measure by reference to other rights included in the icescr (añón, 2016: 76-77). finally, there are core or minimum obligations to be fulfilled immediately. in general, it is a core obligation to satisfy, at least, the essential level of the rights recognised in the icescr. furthermore, it is generally understood that the prohibition of discrimination as well as the protection of vulnerable and marginalised groups are transversal minimum obligations, applying to all human rights. more specifically, gc no 14 is very illustrative in this respect since it provides a list of core obligations regarding the right to health. in this sense, states are strongly obliged to ensure: a) access to health services without discrimination, in particular for those vulnerable or marginalised groups; b) access to essential and adequate food; c) access to basic shelter, housing, sanitation and potable water; d) the provision of essential drugs, in line with the who action programme on essential drugs; e) the distribution of health services, based on the principle of equity; and; f) the implementation of a national public health strategy to address and face risks that may affect the whole population. to summarise this section, the cescr has defined a number of specific social rights, including the right to health, that may have previously been more ambiguous. the right to health recognised in article 12 icescr includes, for example, the right to maternal, child and reproductive health; the right to healthy natural and workplace maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 29 environments; the right to prevention, treatment and control of diseases; and the right to health facilities, good and services. furthermore, according to gc no 14, the right to health includes attention to social determinants of health. all these specific rights must be available, accessible, acceptable and of a good quality. in order to achieve all of this, states are obliged to undertake negative duties (not to do) such as respecting the recognised rights and refraining from adopting any retrogressive measures; as well as positive duties (to do), for instance, protecting and fulfilling the right to health as well as realising it progressively. finally, a number of core or minimum obligations include negative and positive duties to be fulfilled immediately. whether states only or third parties, such as private enterprises, are also responsible for right to health obligations is an issue that will be discussed in the next section. iii. business enterprises as responsible for right to health obligations? beyond the responsibility that lies on states, the possibility of considering third parties as responsible for human rights obligations is an issue that has been repeatedly tabled for discussion. examples of third parties include international organisations, nongovernmental organisations, transnational companies and other business enterprises. in the health sphere, the role of multinational corporations on the provision of essential drugs and health services is significantly important (tobin, 2012: 192). for example, in the context of privatisations of health services. in such cases, responsibilities arise upon states in order to control and supervise the activity of private providers. hallo de wolff and toebes defend the position that it is not only the obligation to protect the right to health (discussed in section 2), but all types of obligations (to respect, protect and fulfil) arise in order to ensure the correct functioning of health services (hallo de wolf and toebes, 2016: 89; hallo de wolf, 2011). beyond the states’ obligations, this section focuses on the advancements that have been made so far towards the recognition of business enterprises as responsible for human rights obligations when conducting their activities in the health sphere. in this respect, whether companies are only obliged to respect the right or also to fulfil it is at the centre of the debate. in august 2003, the sub-commission on the promotion and protection of human rights, as the principal subsidiary organ of the old commission on human rights, elaborated the norms on the responsibilities of transnational corporations and other business enterprises. the text sets general duties for companies as well as specific obligations regarding equal opportunities, the prohibition of discrimination, the right to personal safety, labour rights, the respect to the national sovereignty, consumer rights and the protection of the environment (weissbrodt and kruger, 2005: 328 y ss). however, these norms did not have any binding effects. following the instructions of the commission, the un secretary-general named, in august 2005, an expert in charge of studying the issue of the responsibilities of transnational companies and other business enterprises regarding human rights. prof. john ruggie, as the special representative for business and human rights, elaborated a document including 31 principles at this respect, finally published in 2011. the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 30 the un guiding principles on business and human rights have been adopted by several companies. they distinguish between: a) the state duty to protect human rights; b) the corporate responsibility to respect these; and c) access to remedy. with regards to the corporate responsibility, the principles state that business enterprises must respect human rights, which means that they must avoid infringing them and must address human rights impacts with which they are involved (principle no 11). in order to ensure this, enterprises must implement the corresponding policies and procedures. this aspect has been criticised, for instance, by esteve, since no external mechanisms exist in order to ensure and to verify the compliance with human rights responsibilities (esteve, 2011: 337-339). furthermore, toebes criticises that this responsibility is only limited to the duty to respect and it does not include any positive obligation to protect and to fulfil human rights (toebes, 2015: 2016). additionally, in 2000, the un secretary-general initiated the united nations global compact, a project that aims to involve companies and other actors in the respect of human rights and, specifically, in the compliance with basic labour and environmental standards, as well as the fight against corruption. companies adhered to the global compact accept their responsibility to fulfil the objectives included. however, the initiative lacks any legally binding effects. once again, monitoring the compliance with human rights goals is up to the companies involved (esteve, 2011: 320). in this respect, the un joint inspection unit (jiu, 2010) pointed out that part of the funding of the global compact comes from the contributions made by the same companies adhered to it. focusing on the right to health, the cescr states in gc no 14 that private sector as well as other non-state actors have responsibilities regarding this right (gc no 14, para. 42). prof. paul hunt, as the special rapporteur on the right to everyone to the enjoyment of the highest attainable standard of physical and mental health, considered in a 2006 report on the responsibilities of pharmaceutical companies that ‘it is inconceivable that some human rights do not place legal responsibilities on business enterprise’ (a/61/338, 2006, para. 93). the special rapporteur also elaborated the human rights guidelines for pharmaceutical companies in relation to access to medicines as an annex to a 2008 report (a/63/263, 2008, annex)4. this work was continued by anand grover during his mandate as the special rapporteur on the right to health, focusing extensively on access to medicines, intellectual property laws and free trade agreements (for instance, a/hrc/11/12, 2009). securing access to medicines has been an essential issue, especially since the agreement on trade-related aspects of intellectual property rights (trips) came into force in 1994 as a part of the agreement that stablished the world trade organization. the trips agreement set minimum standards for intellectual property protection. consequently, low and middle income countries feared the possible obstructions to accessing medicines within their territories (nicol and olasupo, 2012). in this respect, one of the reports written by anand grover as the special rapporteur on the right to health was the result of an expert consultation about intellectual property rights that 4 regarding sexual and reproductive rights: khosla, r., hunt, p. (2009). maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 31 obstruct in some cases access to medicines by artificially inflating prices (a/hrc/17/43, 2011). according to one of its conclusions, ‘the right to health requires a company that holds a patent on a lifesaving medicine to make use of all the arrangements at its disposal to render the medicine accessible to all’ (para. 47). furthermore, it underlines how developed countries and multinational pharmaceutical corporations pressure developing countries that attempt to implement trips flexibilities (para. 47). in other reports on access to medicines, the special rapporteur called upon the states ‘to shift from the dominant market-oriented perspectives on access to medicines towards a right-to-health paradigm in promoting access to medicines’ (a/hrc/23/42, 2013: para. 67). it also recommends that states should adopt price control measures to remove taxes on medicines in order to strengthen the competitiveness of the local production of medicines in order to ensure long term and affordable access (para. 70-71). with regards to the private provision of health care services, the who commission on social determinants on health urges the private sector to strengthen responsibility regarding the improvement of labour conditions of health professionals, as well as to ensure that their activities (for instance, the provision of health insurance schemes) do not undermine health equity (who, 2013: 23). the un human rights office of the high commissioner published a report series on globalisation, trade and human rights, one of them dealing with liberalisation of trade in services (e/cn.4/sub.2/2002/9, 2002). according to the high commissioner, states hold responsibilities to guarantee universal access to services, especially for the poor sectors of the population (para. 68). furthermore, states have the right and the duty to regulate health services (para. 70). in a similar way, prof. paul hunt as the special rapporteur on the right to health concluded a mission to the world trade organization with a number of recommendations on the relationship between the right to health and trade activities directed towards the old commission on human rights, the special rapporteurs, the treaty bodies, the world trade organization members, international organisations and civil society (e/cn.4/2004/49/add.1, 2004). for instance, the report insists on conducting right to health assessments when states adopt liberalisation policies (para. 80). in conclusion, while liberalisation and privatisation of health services do not directly contravene right to health regulations, both the state and third parties must respect and realise human rights standards. therefore, states cannot ignore their human rights obligations (de feyter and gómez isa, 2005: 3-4). as the special rapporteur stated: ‘while a state may contract the delivery of health services to a private company, it does not contract out of its right to health obligations’ (a/61/338, 2006, para. 59-50). business enterprises must respect the right to health and human rights standards. despite the lack of regulations imposing positive obligations on business enterprises, there is a large number of recommendations from un human rights bodies and experts insisting on the importance of undertaking human rights assessments while conducting their private activities. the next section will focus on an objective to be achieved by states that may require the co-collaboration of private enterprises; that is, the goal to ensure access to health services for all. the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 32 iv. the universal health coverage goal the universal health coverage goal (hereafter, uhc) proposed by the world health organization (who) is a significant development towards the implementation of the right to health. for the first time, health was described as a fundamental right in the who constitution in 1946. health is also defined in this text, using a social definition of health, as ‘the state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ (international health conference, 1946). after decades of primarily focussing on public health concerns, who has shifted some attention towards human rights over the last few years. in this connection, the universal health coverage proposal (hereafter, uhc) aims to ensure that all people receive the health services they need without suffering any financial hardship in paying for them. according to meier and onzivu, different factors moved who away from legal and human rights approaches towards a main focus on international public health (meier and onzivu, 2013: 184). however, who undertook the programme ‘health for all’ in the 1970s according to right to health standards (world health assembly, 1977). this perspective is also reflected on the alma-ata declaration of 1978, underlying the importance of primary health care (international conference on primary health care, 1978) as well as on the 2000 world health report on health care systems (who, 2000). who has also adopted a human rights approach with regards to issues such as the attention to social determinants of health; the gender, equity and human rights programmes as well as the address of hiv issues (meier and onzivu, 2013: 185). in short, the interrelation between public health and human rights standards becomes clear and essential. according to who, universal health coverage is, by definition, the practical expression of the concern for the right to health (who, 2012: 3). the uhc goal was included for the first time in 2005 resulting from the 58th world health assembly’s resolution (who, 2005). the state parties committed themselves to developing suitable funding mechanisms to guarantee universal access to health care services, without suffering financial hardship. more specifically, who urges governments to implement a prepayment contribution mechanism, to plan the transition towards universal coverage (taking into account each country’s economic, social, cultural and political circumstances) and to build collaborative nets between public and private providers in order to exchange experiences about the best health care funding models. five years later, the 2010 world health report (who, 2010) gave governments instructions to achieve the uhc goal. these concerned three main problems to be solved: 1) unavailability of resources; 2) direct payments for health services, and; 3) inefficient and inequitable use of resources (p. 3). firstly, in order to increase the available resources, who insists on: a) improving fund collection mechanisms to make them more efficient; b) resetting state budget priorities; c) introducing innovative funding mechanisms (for instance, introducing taxes on airplane tickets, currency taxations or tobacco); and d) meeting their commitments for official development assistance, to help developing countries face their budget deficit (p. 20). maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 33 secondly, it is essential to avoid direct payments to access health care, which require payment for the service at the time of receiving it (p. 44). this objective underlines the serious consequences of direct payment requisites for people with financial difficulties. however, the goal is to avoid direct payments in all cases, introducing prepayment and pooling mechanisms (p. 40). thirdly, who insists on promoting an efficient and equitable use of resources (oms, 2010: 20). according to who, there is no convincing evidence that private sector facilities are more – or less – efficient than public facilities (p. 60). amongst other strategies to reduce inefficiency, it is recommendable to increase the use of generic medicines, to monitor and publicise prices as well as to undertake impact, cost and needs-based assessments to decide between policy options (p. 63). it is also important to increase the motivation of health workers by, for instance, revising remuneration policies. attention should also be paid on securing access to vulnerable and marginalised groups such as women, migrant or indigenous populations. in short, according to the who world health report in 2010 and their 2012 discussion paper, states should address three main aspects in order to achieve uhc: 1) the extent of the population included (with the aim to cover 100% of the population); 2) the financial contribution organised by the government (with pooled funds, prepayment schemes and avoiding direct payments by patients) and; 3) the health package, including basic promotive, preventive, curative and rehabilitative health services (ooms, latif, waris, 2014: 4). the uhc goal has been supported by the un general assembly. in december 2012, a resolution with the title global health and foreign policy was passed unanimously supporting the proposal, calling on states to adopt measures to ensure all people access to health services. a few months later, who as well as financing and health care representatives from 27 countries met in geneva to analyse the developments made regarding uhc. one of the issues discussed dealt with the possible prioritisation of resources for vulnerable groups in the early stages of the uhc implementation, to later include larger sectors of the population (who, 2013). other international and regional texts were adopted in 2012 with the objective of recognizing the uhc goal: the bangkok statement on universal health coverage, the mexico city political declaration on uhc and the tunis declaration on value for money, sustainability and accountability in the health sector (un general assembly, 2012). more recently, the importance of uhc has been reaffirmed through further declarations, such as the 2017 ‘tokyo declaration on uhc: all together to accelerate progress towards uhc’. furthermore, regarding the post-2015 development agenda, universal coverage is recognised as one of the sustainable development goals (sdgs): ‘achieve universal health coverage, including financial risk protection, access to quality essential health care services and access to safe, effective, quality and affordable essential medicines and vaccines for all’ (un, 2015, target 3.8). with this recognition, once more, all un member states commit themselves to ensure universal health coverage for 2030. access to health services is, however, only one of the objectives necessary to ‘ensure healthy lives and promote well-being for all at all ages’ (goal 3). in this sense, goal 3 also includes ensuring affordable access to medicines, increasing health financing and the recruitment the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 34 of professionals (targets 3.b and 3.c). beyond health care services, goods and resources, ensuring other sdgs is necessary for achieving a good health status, according to the concept of social determinants of health as socio-economic causes influencing health (the causes of the causes of illnesses; m. marmot, r. wilkinson, 2006: 2). other related goals are food security, management of water, reliable energy, decent work, reduction of inequalities or healthy environment (sdgs 2, 6, 7, 8, 10 and 13). in this connection, chapman considers that there are practical difficulties in the achievement of the sdgs, given that the 17 goals also include a further number of specific targets (chapman, 2015). in relation to the who appeal to consider uhc as the practical expression of the right to health, the relation between human rights and the sdgs is clear5. ultimately, the right to development is a human right internationally recognised by the declaration on the right to development of 1986 (un general assembly, 1986). more specifically, the office of the united nations high commissioner for human rights (ohchr) contributes to the analysis of the post-2015 agenda from a human rights perspective. for instance, it is worth mentioning the 2013 ohchr report who will be accountable?. according to the summary table on the linkages between the sdgs and relevant international human rights instruments, developed by the ohchr, goal 3 is related to the following human rights: right to life, right to health, special protection for mothers and children, right to enjoy the benefits of scientific progress and its application and international cooperation. furthermore, right to health is linked with goal 6 on clean water and sanitation and with those goals related to environmental issues such as goal 12 on responsible consumption and production, goal 13 on climate action, goal 14 on life below water and goal 15 on life on land (ohchr). to summarise this section, after decades of primarily focussing on international public health issues, who proposed in 2005 the goal to achieve universal health coverage, as the practical expression of the concern for the right to health. whether the uhc goal can embrace the implementation of all the components and elements that this right requires is a debate that may be further explored. in order to ensure uhc, the state parties commit themselves to developing suitable funding mechanisms to guarantee universal access to health care services. this will require a number of aspects to be addressed as well as specific problems to be solved, which this section has analysed. moreover, the uhc goal has the support of the un general assembly and is included in the post-2015 sustainable development goals, as target 3.8. the linkages that can be established between the sdgs, such as the uhc goal, and human rights, show the interrelation between both: every step taken to achieve universal health coverage will advance the implementation of the right to health and health care. subsequently, the discriminatory denial of access to health care will violate the right to health (as studied in section 2). in this respect, the next section analyses the existing monitoring mechanisms that allow possible right to health violations to be reported before the cescr. 5 the human rights guide to sgds developed by the danish institute for human rights shows the interrelation between human rights and the sdgs. maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 35 v. monitoring the right to health: the individual complaints mechanism moving on to an issue that is more directly linked to the legal enforceability and justiciability of the right to health, this section studies the cescr mechanisms that monitor implementation of the right to health. it focuses on the individual complaints mechanism which was introduced by the optional protocol to the icescr. this mechanism allows individuals and groups of individuals to send communications to the cescr claiming a violation of their economic, social and cultural rights. the optional protocol has to date been signed and ratified by 23 states, bound by its previsions and against which their citizens can allege social rights violations. treaty bodies use different monitoring mechanisms to evaluate the implementation of rights by the states parties. as for the cescr, according to article 16 icescr, states must send periodic reports regarding the implementation of the rights included in the icescr in their territories. this means that, every five years, states report the legal, administrative, judicial and other kinds of measures that have been adopted in order to fulfil with the application of the treaty. after the state has sent the report to the cescr, civil society and non-governmental organizations send the ‘shadow report’, usually contrasting the state version by reporting situations of no implementation or violations. after examining both reports, the cescr publishes the recommendations to the state party as concluding observations. as an example, the cescr recently assessed spain’s implementation of the rights included in the icescr, regarding the period 2012-2016. in order to prepare the shadow report a number of different human rights protection organizations joined together as ‘plataforma desc’. during the process, they reviewed the situation of implementation of the rights included in the icescr within the spanish territory. as a result, the joint report to the cescr was presented in march 2018. the concluding observations to spain were ready in april 2018 and included a list of concerns and recommendations with regards to the rights included in the covenant. regarding the right to health, the cescr urged spain to assess the impact of the 2012 health care reforms that restrict access to health care for undocumented migrants, as well as to guarantee that this group has access to all the health services they need without discrimination (recommendation no 42)6. in this respect, it is worth noting that, after a change in spanish government, new health reforms were introduced in july 2018, through royal decree-law 7/2018, 27th july, on universal access to the national health system, recognising access to health care for all residents in the country as well as for undocumented migrants. regarding sexual and reproductive health, the cescr called on spain to ensure that all women have access to the sexual and reproductive health services needed, including access to abortion in cases of conscientious objection (recommendation no 44)7. 6 with regards to the spanish reforms on access to health care introduced by royal decree-law 16/2012, 20th april: lema (2014), dalli (2018). 7 general comment no 20 on the right to sexual and reproductive health is very illustrative in this respect. the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 36 apart from the reporting system, the cescr also receives individual communications alleging violations of the rights included in the icescr. the individual complaints mechanism was introduced in 2008 by the optional protocol to the icescr, which came into force in 2013. until then, the only chances that individuals had to allege right to health violations came from linking this right to other rights that were monitored by bodies such as the human rights committee and the committee against torture (courtis, 2009: 49). another option was to allege a violation of the right to health in connection with the prohibition of discrimination, through the complaints mechanisms included in specific treaties such as the convention on the elimination of all forms of racial discrimination. this was due to the fact that there was not a direct complaints mechanism for protecting individuals against economic, social and cultural rights violations. nevertheless, since the optional protocol to the icescr came into force, it is possible to send communications to the cescr regarding violations of the rights included in the icescr, such as the right to health. this possibility can be interpreted as a sign of recognition of the relevance of social rights as human rights (añón, 2010: 41). according to article 2 of the optional protocol, communications can be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a state party. article 10 also sets the procedure for inter-state communications. with regards to the requisites for the admission of the communications, it is necessary to have exhausted all internal remedies in the state party, unless the application of such remedies is unreasonably prolonged (article 3.1). other admissibility requisites are the following (article 3.2): a) submission within one year after the exhaustion of domestic remedies; b) the facts must have taken place after the entry into force of the protocol for the state party concerned; c) the matter cannot be already examined by the cescr or under another procedure of international investigation; d) compatibility with the provisions of the icescr; e) the communication must be founded and sufficiently substantiated, not only based on mass media reports; f) it cannot constitute abuse of the right to submit a communication; and g) it cannot be anonymous and must be presented in writing. furthermore, the cescr can decline to consider a case if it is not revealed that the author has suffered a clear disadvantage, unless it is a serious issue of general importance (article 4). according to the ‘statistical survey of individual complaints dealt by the cescr’, by january 2018, 23 communications (either pending, inadmissible, discontinued cases or views) have been or are being dealt with by the cescr. there are only 9 cases at the cescr case law ohchr database so far, of which 8 were against spain and 1 was against ecuador. however, the cescr adopted views regarding only 2 out of the 9 cases, since the rest were found inadmissible. focusing on the communications which alleged right to health violations, one of them dealt with an alleged medical negligence and lack of informed consent, however the relevant facts took place before the entry into force of the protocol for spain. therefore, the communication was found inadmissible (communication no 4/2014). looking at the pending cases, there are 7 communications against luxembourg, italy, spain and ecuador, being examined by the cescr. one of the communications is submitted against ecuador alleging the violation of the right to health, amongst other rights (articles 2, 6, 7 and 12), in a case regarding access to maría dalli the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 37 complementary compensation established by collective bargaining agreement (communication no 7/2015). more recently, the communication no 22/2017 was presented against italy regarding a case of in vitro fertilization. the authors allege violation of the rights recognised in articles 2.1, 10, 12.1.2.c) and d) and 15.2.3. after the in vitro fertilization cycle, only one embryo out of six was determined to be free of multiple hereditary exostosis (hme or hmo) but was graded ‘average quality’ with a low chance of nesting. despite the fact that the female author declined to have this embryo transferred to her uterus, the private clinic’s personnel insisted on that, according to law 40/2004, her consent to the transfer of embryos to her uterus can only be revoked before fertilization has taken place. after being threatened with a lawsuit by the clinic, she had the embryo transferred and subsequently suffered a miscarriage. the authors requested that the clinic should donate the other embryos affected by hmo for research, however, the clinic refused this request alleging that research on embryos is prohibited (by law 40/2004). the authors initiated a trial against the clinic to order them to surrender the embryos and in order to determine if the female’s author decision not to have the embryo transferred was in conformity with the law. the case was dismissed by the italian courts and is now pending resolution by the cescr. to conclude, there is a low number of individual communications before the cescr. on one side, the optional protocol to the icescr only came into force five years ago, in 2013. on the other side, it is worth remembering that in the 10 years since the adoption of the optional protocol, and in the 9 years since it was opened for signature, only 23 states have ratified it, while 168 states have ratified the icescr. by contrast, 116 states have ratified the optional protocol to the international covenant on civil and political rights of 1966 that introduced the individual complaints mechanism regarding this kind of rights. these differences show that, as a general rule, states have always been, and still are, reluctant to be bound by social rights objectives, such as the right to health. furthermore, while the complaints mechanism for civil and political rights was introduced in 1966, entering into force in 1976, it was over another four decades before a similar mechanism for social rights was introduced in 2008. currently, speaking at least for the international community and for those 23 states parties of the optional protocol to the icescr, the functioning of the complaints mechanism finally confirms social rights as enforceable, justiciable and equally important human rights. vi. conclusion this article has analysed the main developments that have been made regarding the content and implications of the right to health. after this right was internationally recognised in 1948, as part of the right to a decent standard of living, the icescr was passed in 1966 including the right to the highest attainable standard of physical and mental health, in article 12. the comprehensive interpretative work of the rights included in the icescr by the cescr through the general comments enables the consideration of the right to health as a defined right that comprises a distinct set of concrete elements, as discussed in section 2. moreover, the right demands the implementation of obligations the human right to health: a retrospective analysis after 70 years of international recognition the age of human rights journal, 11 (december 2018) pp. 24-42 issn: 2340-9592 doi: 10.17561/tahrj.n11.2 38 by states. general obligations include positive and negative duties, which are subject to progressive realisation by states, excepting for those minimum obligations that require immediate implementation. in this sense, at the very least, and regardless of economic constraints, states are obliged to satisfy the essential level of the right to health and to implement the core obligations, according to gc no 14. furthermore, the present article underlines three specific advancements that have the potential to strengthen the implementation and the enforcement of the right to health. firstly, beyond the state responsibilities, considering private entities (e.g. business enterprises) responsible for human rights obligations has been repeatedly tabled for discussion. in this respect, section 3 analyses a number of recommendations from un human rights bodies urging business enterprises to undertake right to health assessments regarding issues such as access to medicines or the provision of health care services. secondly, with regards to universal access to health care, the universal health coverage goal, analysed in section 4, is a significant development. it was proposed by the world health organization and received the recognition of the un general assembly in 2012. it has also been included as one of the sustainable development goals for the post-2015 agenda. finally, regarding the right to health monitoring, section 5 addresses the individual complaints mechanism introduced by the optional protocol to the icescr, as a sign of the recognition of social rights as enforceable and justiciable rights, which has been running since 2013. however, only 23 states have ratified the optional protocol so far and there is a low number of individual communications to date. those who believe that economic, social and cultural rights, such as the right to health, are fundamental human rights which may be invoked before a court, have reasons to celebrate these kinds of monitoring mechanisms and also have reasons to hope that, sooner rather than later, more states commit themselves to social objectives and to the compliance with the rights recognised. vii. references añón, m. j. 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(2009), ‘las instituciones nacionales de derechos humanos y los derechos económicos, sociales y culturales. apuntes sobre una relación clave’, cuadernos electrónicos de derechos humanos y democracia, 5, 30-51. chapman, a.r. (2015), ‘evaluating universal health coverage as a sustainable development goal’, health and human rights journal, sdg series. cambridge, harvard fxb center for health and human rights. dalli, m. (2018) ‘universal health coverage for undocumented migrants. the spanish case’, international journal on minority and group rights, 25/2, 283-299. danish institute for human rights, human rights guide to sgds. de feyter, k. and gómez isa, f. (2005), privatisation and human rights in the age of globalisation, intersentia, oxford. esteve, j. e. 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(2005), ‘human rights responsibilities of businesses as none-state actors’, alston, p. (ed.), non-state actors and human rights, oxford university press, new york. world health organization (2012), discussion paper, positioning health in the post2015 development agenda. world health organization (2010), the world health report 2010: health systems financing. the path to universal coverage, geneva. world health organization (2005), sustainable health financing, universal coverage and social health insurance, world health assembly (res. 58.33), geneva. world health organization (2000), informe sobre la salud en el mundo 2000: mejorar el desempeño de los sistemas de salud. world health organization (1977), health for all. the majoritarian epistemology on religious symbols the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 278 the majoritarian epistemology on religious symbols a religiously-based stereotyping technique to “package others’ religious rights” rosaria pirosa* abstract: the paper will focus on a particular form of stereotyping technique which aims to narrow religious rights for non-christian believers, moving from an exclusively judeo-christian epistemology on religious symbols that, no by chance, defines them as “ostensive”. according to this perspective, freedom of religion is eminently a heartfelt attitude, therefore the term “ostensiveness” is intended to emphasize not mandatory behaviors, which are conceived as a redundant way to live faith. starting from its philosophical assumptions, the article deals with the stereotyping tools related to religion, functional to conceal the social complexity and to deny legal protection, through a legal and political concept like state neutrality. the piece seeks to show how the concept of religious right, when it cannot be declined as a majoritarian right, is rife with plural levels of intersecting stereotyping, concerning other categories of diversity like gender and ‘ethnicity’. this approach flatters each dimension and does not take into account coexisting identities within the same person, ignoring that intersectionality highlights the necessity of assessing religious diversity as fundamentally socially located. this stereotyping attitude can be traced back to the complex relationship between law and religion that provides a direct way to assess crucial issues like belonging, identity, community and authority. law, as a cultural and non-neutral construct, regards religion as a valuable fact and worthy of legal protection since it is attributable to an individual phenomenon and as quintessentially private matter. therefore, to assess identity or belonging in the fault lines of the interaction of law and religion means find an opportunity to legitimize targeting law related to religious diversity making it seems like a way to deal with religious ‘differences’ that cannot be assimilated. in this respect, we discuss about the radical secularist claims through a case-study, namely the “affaire québécois” within the canadian system, not only in a geographical sense, but in the theoretical field mapped out by religious pluralism as the focal point of the multiculturalist approach, on one hand, and the secularist revival, on the other hand. keywords: religious pluralism; majoritarian epistemology; secularism; multiculturalism; stereotyping summary: 1. the philosophical assumptions of the stereotyping techniques related to religion. 2. the attitude of radical (nationalizing) secularism. 3. the québécois affaire: the ban of the so-called “ostensive” religious symbols 1. the philosophical assumptions of the stereotyping techniques related to religion according to rebecca cook and simon cusack, “the term ‘stereotyping’ refers to the practice of applying a stereotypical belief to an individual member of the subject group. it occurs when a person ascribes to an individual specific attributes, characteristics, or * postdoctoral researcher in philosophy of law; department of legal theory, faculty of law, university of florence, italy (rosaria.pirosa@unifi.it). rosaria pirosa the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 279 roles by reason only of her or his membership in a particular group” (cook, cusack 2009, p. 12). in the light of this perspective, the philosophical assumptions of the stereotyping techniques related to religion can be traced in the dichotomy “liberals-communitarians” and in the underlying anthropological antinomy between the “unencumbered-self”, the liberal prototype of individual, conceived as independent from any tie, even family ties, and the “religious doped”, a person described as encumbered with a monolithic community1. as a matter of fact, this above-mentioned antithesis arises from a process of generalization or an a priori vision of the attributes and characteristics possessed by an individual ascribed to a non-western community and of the roles that are, or should be, played by her or him. this anthropologist premise assigns relevance to the idea of individual responsibility, as a prerequisite for successful self-determination that allows the subject to defend herself or himself from the assimilationist pressure, thus pushing her or his limits. the article deals with these stereotyping tools, functional to conceal the social complexity and, as we will see in detail below, to deny legal protection, taking into account that the stereotyping attitude is above all an epistemological view. with regard to religion, this can lead to the central role of the judeo-christian epistemology on religious symbols. sure enough, the adjective “ostensive” used to describe a religious symbol, arises from a majoritarian view, according to which religious faith and worship is eminently an interior fact for the believer. it can be considered a crucial notion within the debate on religious issues, namely a term used by the political discourse to draw the boundaries of the exercise of freedom of religion in multicultural societies. therefore, the “ostensiveness” is often declined as a redundant demonstration through a person can express her or his religious belief. as multicultural and multireligious societies show, “non-christiansecularist” do not conceive religious symbols as mere external expressions of their faith. “for millions of believers around the world, belief and practice are inextricable: religion is as much system as it is a way of life made of ritual practice and symbols that connect them to god or to higher principles. asking a religious person to ignore a dress code that they consider essential is the equivalent of demanding a vegetarian to put aside her ethical convictions on animal rights from nine to five”2. stereotyping techniques related to religion exclude that religious freedom encompasses much more than convictions stemming from religious sources, because as roderick a. macdonald argues religion could operate in someone’s life as a source and a set of norms (macdonald, 2011), involving ethical and epistemic issues. more widely, the hypostatizing attitude recalls that “the social, political and conceptual complexity of religious diversity (…) is concealed by organizing legal and political concept like state neutrality” (berger, moon, 2016a, p. 9), getting “our attention 1 on this conceptualization see michael joseph sandel (sandel, 1984, pp. 81-96). 2 in maclure, 2016, p. 20. the majoritarian epistemology on religious symbols. a religiously-based stereotyping technique to “package others’ religious rights” the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 280 to the burdens and conundrums involved in imagining a divide between the religious and non-religious within the subject” (berger, moon, 2016a, p. 9). in this respect, the management of the relationship between secular states and religious groups can be referred to the ‘ideal types’ of top-down and bottom up, which involves respectively a different perspective on religious rights. the former is connected to the relevance of the religious tenets and to a monistic epistemology according to which each behavior can be legally protected only if it is provided for a dogmatic provision or it can be reasonably sacrificed if it is not mandatory while the latter is underpinned on a subjective concept of freedom (weinstock, 2011) that implies that a believer can feel she/ he would betray herself/himself if she/he had agreed to take off – for example – a turban or a hijab. overcoming an objective approach on religious rights, this second paradigm focuses the legal protection on the “sincerity of belief”3. as berger aptly pointed out: “there is perhaps no more important access point into the key issues of modern political and legal theory than the questions raised by the interaction of law and religion in contemporary constitutional democracies. of course, much classical political and moral theory was forged on the issue of the relationship between religious difference and state authority”4. with regards to religious matter, the institutional hetero-definition also operates along to the gender-line because gender equality, in the sign of the old liberal contrast between autonomy and dependence, is invoked as an argument to neutralize religious pluralism or multiculturalism, which would support submission of women to the will of men, holders of decision-making power5. therefore, the concept of religious right, when it cannot be declined as majoritarian right, is rife with plural levels of intersecting stereotyping, concerning other categories of diversity like sexuality, gender, ‘ethnicity’, ability and age6. this approach flatters each dimension and does not take into account coexisting identities within the same person, ignoring that “intersectionality highlights the necessity of considering religion and religious diversity as fundamentally socially located” (beaman, beyer 2019, p. 107). that is why there is no effective balancing of interest in so 3 the supreme court of canada affirmed a subjective perspective on freedom of religion, grounding her judicial reasoning on the relevance of the so-called sincerity of belief, compare supreme court of canada, syndicat northcrest v. amselem, 30 june 2004, [2004] 2scr, 2004 scc 47. benjamin l. berger argues that the subjective sincerity test that has been adopted as the means of defining what ‘counts’ as religion for the purposes of canadian rights jurisprudence has the capacity to intervene in the internal dynamics of religious groups (berger, 2012). 4 in berger, 2011, p. 41. 5 on this issue, see okin, 1999, especially the response ‘liberal complacencies’ of will kymlicka who replies to the theoretical perspective of susan moller okin about the incompatibility between multiculturalism and gender equality within a liberal framework, (kymlicka, 1999, pp. 31-34). 6 in this regard, stereotyping approaches do not consider growing transformative capability of the younger generations with respect to their religious heritages. on this issue, see s. lefebvre, a. triki-yamani, 2011. 7 in the aforementioned essay the authors present the main outcomes of a huge project on religious diversity, namely the religion and diversity project, a seven-year project conducted between 2010 and 2017 and centered at the university of ottawa. in addition to peter beyer and lori g. beaman, solange lefebvre, sheryl reimer-kirkham, jennifer selby, michael wilkinson, took part in that relevant research. rosaria pirosa the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 281 many cases that concern religious rights, for example, for muslims or for sikhs who are deemed adherents to all-encompassing or “problematic” religions, not individuals as they engage with their differences and conflated characteristics in the daily life. as peter beyer and lori g. beaman underline: “problematic religion is the sort that is too determinative in lives of its adherents, that thereby supposedly seeks to isolate them from the rest of society because it does not share and even contradicts the dominant values”, (beaman, beyer, 2019, p. 2). according to this stereotyping premise, lived religions amount to the institutional frame where minoritarian religions are presented, and institutional frames do not support certain kind of diversity and religious expressions. consistent with this view, the “problem” of the sikh kirpan is that is conceived as a symbol of violence, not as a vehicle of contact with the divinity and the problem of muslim women’ veil is that is considered a symbol of oppression, gender inequality and of the refusal to integrate into society. to this we must add that, in the so-called western societies, coverage of traditions other than christianity is negative, reductive and stereotypical (knott, poole, taira, 2013, p. 90). tending to essentialize religious groups and flattening the practical experiences of lived religion, media shaped the coverage of religion by focusing on stories with political impact rather than crucial aspects for groups themselves (knott, poole, taira, p. 174). secularism as a legal and political category does not imply per se an inclination towards a particular regime of citizenship, either republican or multicultural. but it is clear that the question of secularism directly mobilizes normative conceptions of citizenship, either republican or multicultural (milot, 2013, p. 18). the multiculturalist debate, burdened in a culturalist drift8, preserves this theoretical framework and does not leave it, far from a relational and personal perspective within an individual is not stuck on a religious or cultural belonging. this approach radicalizes the collective instance and consider this a peculiar way of specific religious groups not taking into account that, on a legal point of view, the collective aspect could be fundamental in the effective exercise of a religious right. we can think that the whole exercise of the freedom of religion for a believer involves the right to profess religion, to practice religious worship and to propagandize it9, these last two expressions being generated by the interaction between the subject and the collective contexts. affirming a tight connection among the guarantee of rights and the political direction, the canadian supreme court, for example, identifies in a legal protection, which does not consider the collective relevance of subjective situations, the expression of a paradigm contrasting with the democratic and multicultural nature of a juridical system10. according to this judicial reasoning, a majoritarian law violates individual religious freedom, but it inhibits the conditions for the ownership of the same 8 on the critical aspects of a culturalist perspective on multiculturalism, the analysis of anne phillips remains a crucial reference (phillips, 2007). 9 with regard to the article 19 of the italian constitution, anna ravà defined religious freedom “a triple right” (ravà, 1959). 10 in the leading judgement r. v. big m drug mart ltd, the canadian supreme court relied on these arguments its perspective on the multiculturalist instance as a way to protect religious rights within a pluralist and secular theoretical framework that marks the limits of a monistic law (namely in that judicial case the lord’s day act), see supreme court of canada, r. v. big m drug mart ltd, 24 april 1985, [1985] 1 scr 295. the majoritarian epistemology on religious symbols. a religiously-based stereotyping technique to “package others’ religious rights” the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 282 right by the subjects belonging to any group other than the majority, including those who identify with an atheism or agnosticism11. simplifying versions of multiculturalism that deal with it as an exclusively theoretical notion, as a model or as an outdated or inflated topic are liable to hinder a rethinking of counteracting social strategies against an instrumental use of the concept of religion and culture12 and they threaten to increase the “targeting law” in the today’s “nation-states”. not by chance, “ideas about legal and political accommodation of (…) diversity have been in a state of flux for the past forty years around the world. a familiar way of describing these changes is in terms of the rise and fall of multiculturalism” (kymlicka, 2010, p. 97). because of that, it is useful to move away from this above-mentioned approach to multiculturalism. we would call that a “literary” version. in a similar way, it needs to get some distance from a mere sociological perspective according to which the multiculturalist instance amounts to living together in a multiculturalist society. beyond the terminological options, the core-idea of multiculturalism and pluralism implies that the public sphere has to enhance crucial aspects for the development of the personality of the subject, also starting from her or his religious belonging. this fundamental principle is implemented by a way to conceive citizenship as a social practice, not as a status. in the canadian experience, the equal religious citizenship is intended to recognize the expression of the religious belief in the public sphere (ex multis ryder, 2008). it does not force anyone to choose between the freedom of religion and, for example, the exercise of a public employment. as a matter of fact, beyond the recent events, in canada, the exercise of the public authority and, in general, of the public function is marked by a multiculturalist or pluralistic character. broadly speaking, religion has found its way to the political and legal discourse about multiculturalism, determining a number of cases before the canadian supreme court, a new body of legal scholarship, a series of administrative bodies daily committed to consider the potential of accommodating diversity. a way to understand multiculturalism as a political and legal tool means to try to affirm a legal-pluralistic perspective. like the feminist approach was introduced in the 11 “the lord’s day act to the extent that it binds all to a sectarian christian ideal, works a form of coercion inimical to the spirit of the charter. the act gives the appearance of discrimination against non-christian canadians. religious values rooted in christian morality are translated into a positive law binding on believers and non-believers alike. non-christians are prohibited for religious reasons from carrying out otherwise lawful, moral and normal activities. any law, purely religious in purpose, which denies nonchristian the right to work on sunday denies them the right to practice their religion and infringes their religious freedom. the protection of one religion and the concomitant non-protection of others imports a disparate impact destructive of the religious freedom of society” (r. v. big m drug mart ltd, p. 337). this idea can be considered the cornerstone of the view on the relationship between secularism and religious pluralism of the canadian supreme court up to the present day. the italian constitutional court expressed a similar approach with the judgement n. 188/1975, n. 117/1979 and n. 203/1989. in the same way we can conceive the hermeneutics of the spanish constitutional tribunal (example given: judgement n. 46, 15 february, 2001) and the evolutionary interpretation of the european court of human rights on the echr article 9. 12 on the reductionist views about multiculturalism see phil ryan (ryan, 2010). rosaria pirosa the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 283 theory of law, bringing out the legal-historical origin of gender inequality, stereotyping processes related to the person in law and the discriminatory content of the normative provisions, in the same way, pluralism should be introduced in the legal theory. 2. the attitude of radical (nationalizing) secularism the techniques of targeting law on religious issues are based on an instrumental use of the idea of identity that is underpinned by a political and discursive power to ascribe persons to specific religious groups, defined according to the conceptual couple radical/moderate. an example of this attitude is the culturalist hypothesis (huntington, 1997) which, starting from the assimilation of the so-called islamic fundamentalism to terrorism, theorizes the incompatibility between islam and western democracies and associates the former with radicalization13. for example, they become radical or moderate muslims or radical or moderate sikh. in addition, a manipulation concerns the self-description of the subject, the fact that she or he connects herself or himself to a specific religious group is not presented as a temporary choice but as an immutable and irrevocable result. this stereotyping attitude can be traced back to the complex relationship between law and religion that provides a direct way to assess crucial issues like belonging, identity, community and authority. law, as a cultural and non-neutral construct, regards religion as a valuable fact and worthy of legal protection since it is attributable to an individual phenomenon and as quintessentially private matter. therefore, to assess identity or belonging in the fault lines of the interaction of law and religion means find an opportunity to legitimize targeting law related to religious diversity making it seems like a way to deal with religious ‘differences’ (that cannot be assimilated). within a collective paradigm, law is intended to maintain an individualistic understanding of religious issues, shaping religion and depriving the person of her meaningful choice to express her faith. “through the force of its cultural understandings, law may encourage religious claimants to think of their traditions as less complicated, more fragile, and more insular than might otherwise be. in short, the law might induce a kind of religious fundamentalism” (berger, 2012, p. 28). the legal-philosophical debate had emphasized the erosion of the national sovereignty and, consequently, it underlined the inadequacy of the “state-shell” with regard to the pluralistic and multiculturalist social realities. but the public debate has strategically shifted on to delegitimize forms of accomodating diversity and to uphold the neutrality of the public space as a priority and a key-point to assess the relationship between the state and religious belonging. recent years have seen a migration of issues regarding religious difference and the nature and structure of the state back to the center of legal and political theory (berger, 2011, p. 41). in this riverbed, the radical secularist claims lay. the rhetoric used by radical secularism has endorsed instance of neutrality for individuals, not for the state. a secularist radicalization enhances a “nationalizing idea” of secularism, reintroducing defining criteria and selective tools to include persons into majoritarian belonging. rogers the majoritarian epistemology on religious symbols. a religiously-based stereotyping technique to “package others’ religious rights” the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 284 brubaker refers the adjective “nationalizing” to the state that, unlike the nation state, is a political-legal unit in which the nation-building is underway or has not taken on a complete and definitive form (brubaker, 1996). so, in this sense, the term, led back to secularism, alluding to an ongoing process in which the secularist and pluralist instances face each other. thinking at gender issues, the hetero-patriarchal perspective of the political power no longer allowed expressly gender inequality and, for example, with the endorsement of the vatican city state, begins a “new way” to use female stereotypes like the “multi-tasking woman” not shutted in the private sphere but always engaged in domestic and family care (garbagnoli, prearo, 2017)14, in the same way the political and legal monism of “western civilization” cannot explicitly emphasize the race as a tool to discriminate. after all, the birth and the very existence of the “western identity” is linked to the colonial conquest, which is not conceived as the black page of the western history or like an accident in the pathway of the modern age (said, 2003). colonization played a crucial role in the historical, political and cultural experience of the west, being the main form of the altering process (todorov, 1982). in the light of the persistent altering dynamics which gave birth from this historical turning point, we can affirm that contemporary forms of altering processes concern the use of religion as a new tool of “racialization” (triandafyllidou, 2017). we could suppose that the great success of these stereotyping and degrading processes is linked to the “epistemology of ignorance” (sedgwick, 1990, p. 8), an approach that, starting from a hierarchical vision, is not interested in human conditions and in social realities, political and legal experiences that are not “self-referable”, namely that cannot be traced back to the universe of those who hold the “right to speak”. this epistemological perspective is the pillar of the securitarian policies in the aftermath of nine eleven, namely the evolutionary – or better the involutionary – version of the anthropological dichotomy underlying the antinomy liberals-communitarians, that is called by judith butler “binarism” (butler, 2010). in this sense, it is but a short step from hypostatization and hierarchization of identities to political practices that assume an “asymmetric value of existences” (avallone, torre, 2018, p. 8). according to paul bramadat and dawson’s studies, the canadian system met this attitude as well (bramadat, dawson, 2014). in that regard, in the canadian multicultural federation, the québécoise experience is significant. 3. the québécois affaire: the ban of the so-called “ostensive” religious symbols in recent years, and consistent with canadian constitutional history, quebec has been the center of gravity of debates and reflection in canada about the management 14 in this sense, it has been interesting that this rhetoric has been used to affirm the current restrictive trend in the italian family-law, expressed by the bill n. 735 “rules on shared custody, direct maintenance and guarantee of double parenthood”, communicated to the presidency on 1st august 2018 during the eighteenth legislature on the initiative of senators pillon, ostellari, candura, pellegrini, piarulli, d’angelo, evangelista, giarrusso and ricciardi, the so-called “ddl pillon”. rosaria pirosa the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 285 of religious difference in a religiously diverse society (berger, 2016b, p. 24). we can also note that the notion of secularism has really entered into social use, because of the critics with regard to accomodation for religious reasons in public institutions15. “reasonable accommodation” analysis asks whether the law (the way in which it advances its policy) can be adjusted so that it does not interfere (to the same extent) with the religious practice, without compromising the law’s public purpose in any significant way” (moon, 2012, p. 42). from the very beginning of nineties, a number of anti-multiculturalist outbreaks gave birth to a conspicuous debate on religion that is still in progress, through which the parti québécois and the coalition du avenir du québec – the extreme wing of the right party coalition – sought to fight against religious pluralism and the judicial interpretation of secularism as a pluralist and inclusive instance, and to thwart the equal religious citizenship as well. not even the liberal parti, though starting from the different theoretical framework of the left wing, got some distance from this intention. eight years ago, in august 2013, the parti québécois has proposed the “bill 60”, known as secular charter or charte des valeurs, that, in its main rule, the article 5, provided for the ban of the so-called ostensive religious symbols with regards to specific sectors of public employment. this proposal was struck down in april 2014 when the parti québécois has lost the provincial elections, but the assumptions of this proposal are not expired. rather, we could think that the liberal party, behind a sort of political compromise, has decided to accept as a consequence of its proposal on secularism, the “loi 62”16, the labelling and the marginalization of a part of the québécoise population, providing the ban to offer as well as to receive a public service with a burqa. as underlined coline bellefleure, laywer and member of the association of canadian muslim lawyers, this act is affected by a bad reception of the principle of religious neutrality17 and had an impact on a negligible percentage of the québécoise population, marginalizing women who “wear” a burqa, because, for example, it is impossible for them to take a bus without having a penalty. in addition, the proposal aimed at affirming a “legalistic-systematic” idea of the “reasonable accomodation” that in canada, thanking to the evolutionary interpretation of the supreme court, has received a “constitutional entrenchment”18. so, it seems a serious downgrading. the proposal tries to separate the cases that imply “religious accomodation” from the general field of the “reasonable accomodation”. according to the idea of the 15 on the relationship between the secularist discourse and the intent to contain and criticize “accomodating diversity” compare bauberot, 2006. 16 this act, promoted by the liberal party, entered into force on 18th of october 2017. 17 “nous sommes cependant d’avis que ce projet de loi représente à plusieurs égards une mauvaise application du principe de neutralité religieuse” (c. bellefleur, 2016, p. 38). 18 compare supreme court of canada, r.v oakes, 28 february 1986, [1986] 1 scr 103. the majoritarian epistemology on religious symbols. a religiously-based stereotyping technique to “package others’ religious rights” the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 286 commission des droits de la jeunesse, this separation provokes a hierarchical effect on the rights, upsetting the judicial balance19. as matter of fact, the judge will take into account rights or subjective interests previously packaged as “religious rights” or defined “non-religious rights”. so, it’s interesting that a “stereotyping goal” concerns the basis of the multiculturalist perspective, namely “the accomodating diversity”. in the opinion of the parti québécois and the coalition du avenir du québec, the action of the liberal party on this issue gave, even simbolically, poor results. because of it, when the coalition du avenir du québec won the elections, the “loi sur la laïcité de l’état” was drafted and, after intense parliamentary debates in the national assembly, was approved on the 16 th june 201920. the “loi sur la laïcité de l’état” radicalizes the premises of the “secular charter” providing a general ban on the so-called “ostensive” religious symbols for the public employers. on the other hand, this law saves all the christian symbols, conceived in a “de-religioused” perspective as a part of the historical and cultural heritage of québec: the christian cross exposed in the national assembly, under which the provisions on religious symbols were approved, and the famous and visible, we could say more than “ostensive” christian cross on the mont royal hill. after the multicultural fabric has resisted to the secularist requests of the secular charter, it needs to understand why, after five years, the coalition du avenir du québec has been able to impose a radical secularist idea. it is not coincidence that, in québec, a stereotyping technique also concerns the concept of “multiculturalism” because the implementation of the multiculturalist instance, in the framework of the french belonging, has been identified as a way, by pierre eliott trudeau, to thwart the québécoise distinctiveness21. under a legal point of view, while being contrary to the patriation constitution process, québec cannot refuse to adhere to the canadian federation, falling under the federal jurisdiction. although multiculturalism as political and legal tool has been enhanced first of all in québec, where the bilingualism was real as well as institutional, to be “québecois” instead of “quebecer” required to find a similar but different idea of multiculturalism, what is called interculturalism. however, as bibhu parekh (2000), tariq modood (2013) and louis philippe lampron argue, the last one as an insider of the québécois province, the difference between 19 on this issue see commission des droits de la personne et des droits de la jeunesse, memoire à la commission des institutions de l’assemblée nationale – projet de loi n. 21, loi sur la laïcité de l’état, québec, may 2019. 20 with the government of the coalition du avénir du quebec, the caquiste proposal on the religious neutrality of the state, discussed since the very beginning of october 2018, on 16th of june 2019, becomes the loi sur la laïcité de l’état. 21 pierre eliott trudeau (1919-2000), father of the canadian prime minister in office justin trudeau, was an exponent of the liberal party since 1965 and became prime minister since 1968 to 1979, and then since 1980 to 1984. pierre eliott trudeau prompted the project that ended up inscribing multiculturalism in the legal-political order and, later, in the canadian constitutional system. rosaria pirosa the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 287 multiculturalism and interculturalism does not exist. “on the devrait fonder juridiquement l’interculturalisme” (lampron, pp. 6-7). for historical reasons, the québécois distinctiveness has burdened by a cultural connotation strictly connected with the “religiousization” of “non-catholics” believers and the “de-religiousization” of catholics. in that frame, the person who practices religion not leaving the hjihab or the kirpan must be excluded by the public sphere because she or he is following an option that is not mandatory. as we have seen, the basis of the mentioned attitude is a majoritarian perspective on religious symbols as well as its interiorization and its implementation in legal-political terms. in this respect, if the term “porto” (in italian language) or “port” (in french language) is not adequate to point the fact that a person has on her or him body a religious symbol, in the same way the verb “to wear” is not adequate because it suggests to downgrade or degrade the religious practice to a physical appearance or to an apparence vestimentaire. the caquiste proposal arises from the intention to de-judicialize the legal system. as a matter of fact, in several times, first of all in the canadian system, the judicial interpretation has struck down the stereotyping techniques and the stereotyping premises, like in the amselem case22, in which, as we have underlined, the supreme court affirmed a new idea of subjectivity, stating that a person before a court is able to claim a religious right and a religious belonging but in the hic et nunc of the trial. she or he is requested to test to be animated by an authentic belief, by the sincerity of belief, beyond the fact that the religious practice is provided by a dogma or a formal provision. therefore, she or he is not stuck on a “once and for all” religious belonging. according to this perspective, religions are moment-in history interpretations of a moving and dynamic tradition (berger, 2012). the caquiste proposal, in a theoretical paradox, is aimed at constitutional entrenching of secularism, but “unentrenching” the constitutional value of religious pluralism, expressed by the last fifty years canadian case-law. the supreme court of canada also identified in a pluralistic interpretation the core-principles in the relationship between the idea of religious neutrality and the exercise of the public function, with respect to the multicultural character of the system. after the “loi sur la laïcité de l’état”, the person who exercises a public function becomes a subject allowed to have a job if she or he, with responsibility, decide to waive the right to exercise religious freedom. the constitutional entrenchment of secularism is addressed to legitimize radical secularism and to enhance the idea according to which processes of self-definition different from the catholic-secularist one, in italian language we say “catto-laico”23, have no room 22 supreme court of canada, syndicat northcrest v. amselem, cit. 23 this expression points out that it is paradoxical that who defends rhetorically christian ‘culture and heritage’ is at the same time waiving in the daily life religious identities and practices. on this issue, see clarke, macdonald, 2017. the majoritarian epistemology on religious symbols. a religiously-based stereotyping technique to “package others’ religious rights” the age of human rights journal, 16 (june 2021) pp. 278-291 issn: 2340-9592 doi: 10.17561/tahrj.v16.6085 288 in a western society. this strategy involves a dangerous and reactionary overlapping between secularism and radical secularism. the question is what will be the social response to this trend. in a legal system where, exception for the aboriginal groups24, in an attempt to avoid the backlash and to focus on similarity rather than sameness or difference, a nostereotyping approach had an impact on powerful belonging key-tools as “ethnicity”, “national identity”, “otherness”, through a new political-legal lexicon and a rethinking of the idea of living together, secularism could get stronger. in that case, it will strengthen a stereotyping citizenship and the majoritarian attitude intended to package the ‘others’ rights, in a framework where “law has not just struggled with questions of religious freedom but has challenged religion to test the resiliency, complexity, and resources of its own traditions” (berger, 2012). references avallone, g. and torre s. 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(2017) nation and religion: dangerous liaisons in triandafyllidou, a. modood, t. (eds.) the problem of religious diversity, european challenges, asian approach. edimburgh: edinburgh university press, edinburgh, pp. 37-37. https://doi.org/10.3366/edinburgh/9781474419086.003.0002 weinstock, d. (2011) ‘beyond objective and subjective: assessing the legitimacy of religious claims to accomodation’, les ateliers de l’éthique/the ethics forum, 6 (2), pp. 155-175. https://doi.org/10.7202/1008036ar received: september 17th 2020 accepted: november 16th 2020 https://doi.org/10.3366/edinburgh/9781474419086.003.0002 https://doi.org/10.7202/1008036ar the majoritarian epistemology on religious symbols abstract 1. the philosophical assumptions of the stereotyping techniques related to religion 2. the attitude of radical (nationalizing) secularism 3. the québécois affaire: the ban of the so-called “ostensive” religious symbols references x jornadas de sociología de la unlp the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 63 follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina julieta mira1 abstract: this article presents the research backroom about the legal activism in the criminal justice system reform following the ethnographic strategy. in particular, it addresses the “struggle” for “accusatory” criminal procedural reform at the federal level in argentina since the end of the last dictatorship (1976-1983). specifically it is about: a) participation in public events as an entrée to the field; b) native etnographer; c) native categories and theoretical concepts; d) the cause-based “partisanism” (militancia) and legal activism; and e) reform flags as cosmologies of social order. finally, the article offers an analysis of the benefits of ethnographic research with legal activists in the field of human rights. key words: etnography, etnographer, criminal procedural reform, fieldwork, lawyers, human rights. summary: i.introduction: the research of the legal world from inside; ii.the backroom of researching legal activism for the reform of the federal criminal procedural code in argentina; ii.1.participation in public events: an entrée to the field; ii.2.native etnographer: the journey to the social world of lawyers; iii.producing a comprehensive perspective concerning law from the social sciences: native categories and theoretical concepts; iii.1.cause-based “partisanism” (militancia) and legal activism; iii.2.reform flags as cosmologies of social order; iv.conclusions: the research into the legal world as a journey i. introduction: the research of the legal world from inside this article presents the research backroom about lawyers and the criminal justice system reform following the ethnographic strategy typical of the anthropology. in particular, it addresses the “struggle” for “accusatory” criminal procedural reform at the federal level in argentina, which might be regarded as having a strong impact on the latinamerican region. specifically, it is about the long socio-technical dispute for the reform of the federal criminal procedural code (código procesal penal de la nación). this statute is highly significant for human rights considering that it applies to the rules of criminal prosecution regarding federal offences, such as crimes against humanity, counterfeiting of money, human trafficking, drug dealing, terrorism, and corruption. in the course of fieldwork, there was an opportunity to observe the reforming practices aimed at establishing an “accusatorial system” at the federal criminal procedure, which gained great force in argentina since the end of the last dictatorship (1976-1983) and in successive democratic governments. to sum up, the research was able to detect the legal activism of a group of lawyers who positioned themselves as moral entrepreneurs in the dispute for the criminal justice reform, established networks of activism beyond argentina, and dedicated their lives and careers to the cause of law. 1 universidad nacional de san martín (unsam), argentina (julieta_mira@yahoo.com.ar). julieta mira the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 64 moreover, this article presents both the main methodological results of my fieldwork2 and an analysis of my own research practice in the world of criminal law and human rights, as a path generated in the search for understanding the object of my research: the reform of the federal criminal procedural code. this reform aimed at establishing the so-called “accusatorial”3 system in argentina comprising the following features: orality, publicity, prosecutor protagonism and constitutional guarantees during the proceedings. it is worthy to note that the reform attained great strength since the end of the last military dictatorship in 1983. the effort of this analysis tries to deconstruct my own experience conducting the fieldwork. moreover, it allows us to understand the progressive impact of ethnography both on the form of my research and my subjectivity as a researcher, since this methodological position puts into play the reflexivity, the implication and the alienation effect of who is doing research. the purpose of this objectification of my research work is to contribute to the visibility of the potential of ethnography applied to socio-legal research. this methodology of research makes it possible to understand concretely what the law is like rather than how it should be, because it does not seek a truth but tries instead to know the existing social practices in the legal field in general. this shift is possible by transcending the focus on normativity, which opens the opportunity to discover the construction of the venue for relations and power around the law. the change returns the voice to the agents and helps visualize the causes4 for which they fight. furthermore, this perspective appreciates the “reformers” resources and 2 this work is part of my doctoral research, started in 2009 and ended in 2014, and carried out within the framework of the phd program of social sciences at the faculty of social sciences of the university of buenos aires (argentina). phd thesis entitled: una promesa de democratización. activismo, política y expertise jurídica en el proceso de reforma de la justicia penal en la argentina (a promise of democratization. activism, politics and legal expertise in the process of criminal justice reform in argentina), supervised by prof. dr. virginia vecchioli (mira, 2017). this research was funded by: national agency of scientific researches and technologies promotion argentina (anpcyt – foncyt), initial doctorate scholarship; university of buenos aires (ubacyt grants), phd conclusion; and erasmus mundus action 2 – artess (argentina towards europe for socials sciences) – european commission, phd mobility grant, host university katholieke universiteit leuven (ku leuven), supervised by prof. dr. stephan parmentier. this thesis was awarded a special mention –second prizein the national competition of social sciences doctoral thesis organized by the university of buenos aires and eudeba (2019). i would like to acknowledge the blind peer reviewers of this paper for their generosity, help and support for publishing this work. it is with great gratitude that i recognise prof. natalia barbero (university of buenos aires) for her valuable time in reading and making comments. 3 as a convention along this text, words in between inverted commas refer an expression of the agents or natives. they are meant to distinguish the own voice of the legal experts as expressed in the field (in the text, it is mainly a question of allocutions carried out in public events). words highlighted in italics, on the other hand, indicate the use of analytical categories. this distinction turns out to be central in the perspective of research adopted here and inspired by the ethnographies of the anthropological tradition, which seeks to present the words of the agents and from there to inquire into the sense of their action. 4 it needs to be highlighted that cause is a polisemic concept, which refers both to a legal proceeding in court and to a set of interests to be asserted in the public sphere (gaïti e israël, 2003). in this paper, the latter understanding is used, in order to refer to a political sense, which is built-up historically and, therefore, needs to be specified (vecchioli, 2006). follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 65 collective action repertoires deployed in pursuit of their goals, which –in the case under study– they synthesized around the idea of “humanizing criminal justice”. with these purposes in mind, this article aims at showing how it is possible to investigate the legal world. firstly, by explaining the way of an entrée to the field5 and the construction of the research field through the participation in the events related to the criminal justice system reform both in the academy and in the public arena. these events constitute spaces for the promotion of alliances and consensus. in other words, the article explains the experience of following the actors in their multiple venues of public action –in the terms of a multilocated ethnography– and of recovering the discourse of the direct protagonists of the criminal justice reform. the methodological research perspective that i applied in my work was guided by the ethnographic premise of recovering the native perspective, a foundation key concerning fieldwork in anthropology. it is relevant to clarify that the term native is taken from the classic anthropology literature, where it refers to the distinction between the ethnographer and those who belong to the locality that was an object of observation. in this article, the term native is applied to the legal professionals and, more specifically, to the justice “reformers”. this distinction among native statements and analytical perspectives is crucial as a heuristic tool, since it allows us to distinguish between the native speeches and their interested point of view and the distant approach from the social sciences. it means that social sciences are supposed not to reproduce these normative points of view but, on the contrary, to understand them sociologically. in this sense -and beyond its truismmuch of the challenge of the research was to distinguish the native concepts from the theoretical categories, in order not to silence the natives’ voice, on the one hand, and put them in dialogue and, where appropriate, show the tensions among them, on the other. secondly, the article presents what is involved in researching one’s own culture and the ethnographic journey in the city that is being investigated and, simultaneously, inhabited. thirdly, the text shows the comprehensive and reflective perspective of the law from the social sciences that explain the reforming cause. furthermore, the text shows legal activism and cosmologies around this criminal legislative change as central analytical categories to understand the law, as an object of research. in the terms of the actors, it concerns a “struggle” against the remains of the “inquisitive culture” in the country that violates the fundamental rights and guarantees protected by the national constitution in argentina. lastly, this article presents the main conclusions on how to investigate the legal activism of a group of lawyers who has taken up the cause of human rights in the process of searching for the republican transformation of criminal justice. the article indeed demonstrates that, in the dispute for the justice reform, these legal experts position themselves as moral entrepreneurs. the “reformers” build-up networks of 5 as a mode of field research entry. julieta mira the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 66 activism beyond argentina, and dedicate their lives and careers to the cause of law, from an ideology sustained in the democratization of the country and the full enjoyment of human rights. ii. the backroom of researching legal activism for the reform of the federal criminal procedural code in argentina my research seeks to understand legal activism to pursue justice reform and the enormous efforts carried out by legal professionals in argentina, concerning the reform of the federal criminal procedural code used to try federal crimes. with this purpose, i described the strategies and the resources mobilized by these professionals with the aim of promoting changes in the federal criminal procedural system. their trajectories, their imaginaries and their worldviews around the law, and the place that experts could occupy in national public life are also analyzed. to this end, from an ethnographic perspective, the participation of legal professionals in the various criminal justice reform projects is understood as an enterprise. the choice of this methodology also requires emphasizing the identification and analysis of the groups involved in these initiatives, the long-term socio-technical disputes around them, and the conditions of possibility of these reforms. my fieldwork shows the “struggle” between law expert groups to be the legitimate bearers of the flags of the criminal procedural reform, among which are: orality and respect for human rights. in short, it shows a dispute in which the “reformers” seek to establish themselves as representatives of the truth in matters of criminal procedure. this approach makes a turn, showing the adoption of interesting points of view within the activist universe of the lawyers beyond the technical issues of the reform. ii.1. participation in public events: an entrée to the field the starting point of my fieldwork was faced with the central challenge of gaining an entrée to the field -that is, to obtain accesscombined with the question of how to do ethnography of elite (gessaghi, 2012a, 2012b). at the time of the preparation of the fieldwork, it proved extremely complex to be able to define strategies to approach and access to the actors involved in the justice system reform in argentina, that is to say judges, law professors, parliamentarians, and advocates. this situation originated precisely because of the positions of superiority that these people occupy in society, and even because of the social asymmetry with my own person, when i was doing a field experience to become a researcher. in order to overcome these initial difficulties, various ideas were developed to gain an entrée to the field, from dialogues with some legal experts as key informants, mapping of civil society organizations linked to justice and recognized legal professionals, to attendance at events not so close to the subject in particular but promoted within the legal world. finally, the access to the world of the legal reformers was achieved, mainly, throughconstant and long-term participation in events they organized themselves. this follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 67 implies the need of a strong investment in participant observation. in this frame, i found inspiration in rosana guber who has raised the productive tension between observation and participation, since “(…) a game is learned by playing a culture one learns by living it. therefore, participation is the sine qua non of sociocultural knowledge. the tools are the direct experience, the sensory organs and the affectivity that, far from tarnishing, approach the subject matter” (2001:60). circulation through the legal world became a research strategy strengthened over time and fruitfully propagated in its scope and achievements. this was possible through the frequent participation in events organized around the reform in a variety of venues, such as universities and civil society organizations, the national congress and even theatres. the fieldwork terrain itself was affirmed slowly, since it was a deterritorialized terrain, which is equivalent to an area without clear borders or multilocal in marcus' terminology (1995). the circulation was reminiscent of following the actors (guber, 1991 and latour, 2008) in their own labour in different areas, such as the judiciary, parliament, university, media, civil society organizations, professional associations, and law firms. the referred events mobilized activist resources for reform, where it was possible to find elements of institutional alliances, action plans, inter-personal links, protocols and positions in the legal field. thus, the circulation and multipositionality of the agents became the founding elements of this ethnography in a double sense. on the one hand, for the understanding of the legal field and, on the other, for the methodological design that consisted in following the actors in the multiplicity of public places where they circulated and acted. the study could not be limited to any of these social venues, but necessarily invited to inquire into bridges, connections, dialogues and inter-linkages between them. consequently, the communicating vessels –a life sciences concept which i use as a metaphor– between the public world and the private world became visible. they emerged as interpretative keys regarding the composition of the justice reforming elite and of the configuration of their collective actions focused on the exchange of people, resources and expertise. this overview allows us to understand the close connection between legal and political expertise that was noted. for this reason, the research needs to consider what mark granovetter called weak ties among the legal experts and its strengh and impact on the criminal justice reform (1978). the events also functioned as a way of gaining an entrée to the field, generating contacts and building a position as a researcher coming from a universe outside the law in front of the natives. this methodological decision originated as a strategy to overcome the first difficulties in establishing links with legal professionals as important people, with great tasks and multiple occupations, which invites creativity to overcome the challenge (thomas, 1993). this difficulty was strengthened by the researcher being considered a “lega” (lay person), that means in lawyers jargon a person who does not know about law, in addition of being young and female. these characteristics of the ethnographer translated first into a relationship of the type teacher-student, under which julieta mira the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 68 i received some master classes, indications for further reading, and even recommendations on research approaches.6 as anticipated, in this research the entrée to the field consists in the participation in events of legal experts, that is to say, the frequent attendance to: conferences, congresses, symposia of law, and public audiences at parliament. the diversity of venues of interaction is closely related to the multilocation of these agents and the complexity of the relationships between intimately linked arenas: university, professional associations, non-governmental organizations, law firms, national parliament, and state institutions. in developing this approach to the events, the research of john cunha comerford, who considers them as a type of social encounter representative of the action of the social world, was followed (1999: 48). from this conception, the events constitute spaces of socialization that allow to identify individual, public and private institutional agents; and to know their discourses, positions and trajectories. at the same time, the events allow to appreciate aspects of negotiations, agreements or disagreements and possible alliances among them in pursuit of their common objective synthesized in achieving the reform. in these social events different features, beyond the content of the speeches on the bill, become visible: styles (bourdieu, 1996 and cuhna comerford, 1999), hierarchies, liturgical conditions (bourdieu, 1996), spatial provisions, languages and networks of experts at both the national and international levels. these features are known as ritual events (vecchioli, 2014: 71). it is also valuable in sociological terms that activities in the form of events presuppose for their realization: objectives, protocols –order and duration of procedures– programming, coordination, discussions, conclusions, papers, and participants (cunha comerford, 1999: 48). following this strategy, it was possible to approach the legal field and its agents. over the time, the possibility of accessing to the reform experts in situ was expanded, and it has been possible to interview them. it is worth highlighting how my presence as a researcher contributed –in some cases– to generate among the natives a tacit assumption of my closeness or connection to the group. this facilitated the articulation of exchanges that, for example, allowed me to organize personal interviews with the main protagonists. at the same time, these events were not only a space of observation but also a tactic generated by legal experts in pursuit of the reform promotion and its values in relation to justice. it means that these collective actions or events allow the “reformers” to present their ideas, to show their alliances and to spread their reform message to the audience. for this reason, the events also constituted the raw material for the resource mobilization of the reform protagonists, and the collective actions that they undertook in order to “struggle” for their cause. 6 a similar experience in the fieldwork was reported by maría josé sarrabayouse oliveira (2009), as well as the complexity of making this relationship in the sense of etnographer-informant. follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 69 ii.2. native etnographer: the journey to the social world of lawyers another question that arises regarding the entrée to the field is a tension in doing ethnography in one’s own culture while, at the same time, being alien to the legal world. my interest was thus set at discovering how to achieve proximity to that world of relationships without having any personal relationships or professional ties –at least at that time– with the legal world. i carried out many attempts, several of which were frustrating for a long time. during this period, i did not succed in completing my role as a researcher within a framework of both remoteness and closeness. the feeling of disorientation was a constituent part of the initial moment regarding my research. in that way, unknowingly, the initiatory journey of my ethnography had begun without even having moved away from the city where i lived. i arrived in a strange world and thus the anthropological experience amalgamated, in terms of native anthropologist (guber, 2001: 38). the words of roberto da matta resonate when he recounts the shamanic experience in a journey that “does not leave the place”. the “shamanic journeys are vertical journeys (inwards or upwards) rather than horizontal as happens with the classic journey of the homeric heroes”, because “somehow they set out to reach the bottom of the well of their own culture” (1974: 175). it is from this understanding that the opportunity of an inner journey opens for the researcher himself. all these elements show that eventhough it is not a trip to distant lands, like those undertaken by classical anthropologists, my fielwork required a journey to a world that was symbolically as exotic as it was close in terms of territory: the social world of lawyers committed to criminal justice reforms (sabarrayrouse oliveira, 2009). this trip emulated, in part, the classic anthropological journey both by the method and by the analytical tools that proved useful when assessing the material gathered in the field. the categories and concepts belonging to classical anthropology to address “distant” or “exotic” societies were productively recovered to study lawyers nowadays: kinship, lineage, tradition, authority, alliances, ritual, gift and prestige, among others. all of them emphasize the social relations between the various members of the legal field. this is relevant as the culture “is the whole of those relations”, which presents at the same time “an intellectual, symbolic dimension, and a concrete, historical and sociological dimension through which its implementation is developed” (augé, 2006: 31). the shaping of an anthropological experience conducting research and writing demands simultaneously “being outside and inside, being distant and participating” (augé, 2006: 58). the challenge of “the anthropological perspective involves both a transformation of the exotic into the familiar, and of the familiar into the exotic”, synthesizes maría josé sarrabayrouse oliveira from her experience as a researcher about the recent history of justice in argentina (2009: 67). “the problem is, then, to divest oneself as a member of a class and of a specific social group in order to be able – as an ethnologist– to render strange or defamiliarise some familiar social rule”, points julieta mira the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 70 out clearly roberto da matta; because there lies the possibility to “discover (…) the exotic in what is petrified within us by reification and by the mechanisms of legitimization” (1974: 267). with these premises as a lighthouse, my ethnographic fieldwork was construed by successive approximations. iii. producing a comprehensive perspective concerning law from the social sciences: native categories and theoretical concepts to produce a comprehensive perspective concerning law from the social sciences, as encouraged by virginia vecchioli, requires the effort of a distant reflection: “the way in which those interested reflect on these topics and affirm the value of that basic principle of the social sciences that points out the need to transcend the explanations grounded on the will of the agents themselves” (2011: 5). as previously mentioned, my research focuses on the point of view of legal professionals and their accounts of their commitment to the cause of the justice reform related to the human rights and democracy defense. these stories were taken as a source to be subjected to criticism, and in the approach i was especially careful to avoid the enchantment or seduction that usually generates this type of native rhetoric (augé, 2006 and vecchioli, 2006). in this search for understanding, various analytical categories were used as tools to reflect on the construction of criminal justice reform as an object belonging to the sociology of law: cause and cosmology. these categories of analysis mainly address the social and cultural production of law. in order to put in context such an approach to the object of study, each of these categories, which facilitated the research are presented below. iii.1. cause-based “partisanism” (militancia) and legal activism in the research, the legal professionals working to promote the cause of the federal criminal procedural code reform were considered from a multidimensional perspective because these professionals mobilized a series of activist resources to criticize the current legislation and promote a new legal text by proposing new draft codes. resources include, for example, the use of public arena, the belonging to institutions and associations, the prestige, the public speaking, all of which constitute social and symbolic capital (bourdieu, 1996). in this frame, it is really significant that the group of legal professionals involved in this cause called themselves “reform partisans” (or militantes in spanish). this case demonstrates the complexity of studying elites from the social sciences perspectives, as it places us up against the challenge of researching agents in venues of power that are not circumscribed to the parliament, the justice system, or executive branch. on the contrary, the “reformers” occupy multilocated positions both in the state and in civil society. they are advisers to parliamentarians, lawyers who exercise the profession privately, university professors, members of the judiciary, and/or members of civil society organizations or associative institutions of legal professionals. follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 71 the mobilization of legal professionals makes it possible that the justice reform becomes the solution to the social problems which they describe. examples, that the “reformers” themselves make public, include a number of great court cases for corruption stopped due to the existing statute of limitations. according to the “reformers”, this type of cases shows the lack of efficiency of the federal criminal procedural code. thus, these cases give rise to the moral competence of the legal reforming discourse (siméant, 2002). in terms of the law, as a language and means of action, it is the legal expert intervention that transforms the reform of federal criminal procedure into a response to impunity and thus seeks to install both a public and collective cause. the legal field operates as a principle of reality construction, pierre bourdieu (1986) emphasizes, once the ordinary situations are redefined according to its legal definition. to sum up, this research, by focusing on this professional group, seeks to present the force of law (bourdieu, 1986) invested in shaping this cause, which strives to install federal criminal procedural reform as something essential for society as a whole. iii.2. reform flags as cosmologies of social order the notion of cosmology is revealing of the positions of legal experts on the cause of criminal justice reform. mary douglas (1966, 1986 and 1988) argues that cosmologies, as ideal representations of the social order, are tools that agents use to discern, analyse and value reality. douglas believes that cosmologies are exposed in classifications, theodicies, analogies, arguments and conventions. the use of cosmologies as a resource becomes especially necessary when anomalies occur, that is, at times when agents identify disorder confronted with what they consider the natural order. this research made it possible to identify at least three key cosmological arguments that intensely cut across the discourse of the “reformers”. these arguments are constitutive of their critique of the “inquisitive system” and the engine for their proposal of “accusatory system”. these cosmologies are a) “the humanization of criminal justice”; b) “the prosecution of the great crime”; and c) the strengthening of human rights and democratization. these representations and narratives contribute to shape the moral force in the struggle of the “reformers” against the “inquisitive system”. it is worthy to say that the “reformers” consider that this form of criminal prosecution crystallises in the file record, as an artifact, which expresses its inefficiency in prosecuting crimes linked to power, and results in undermining persons when they face a criminal conflict under the judiciary system and before the courts. the ethnographic disposition to follow the actors facilitated a glimpse of the trajectories and the participation in events of legal professionals, where both their expert work and their feature as moral entrepreneurs stand out. experts become activists because they turn their work for reform into a real cause for which they fight and “militate”. this legal activism drives a dual movement, as it simultaneously builds their identities and shapes their professional and activist careers. the nature of the work of julieta mira the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 72 the “reformers” leads to the verification of a hybridization between their expert and activist knowledge in the struggle for another criminal procedural system (siméant, 2002). the “reformers” equate this legal transformation with a process aimed at “the fight against the mafias”, the conquest of “citizen participation” and the “democratization of justice”. one final remark, these expressions emanating from cosmologies make it possible to recover the transcendence of the cultural dimension for (re)thinking the law and its reforms. iv. conclusions: the research into the legal world as a journey showing the backroom of this research allows us to make various contributions. first, it shows that ethnographic work requires being adapted to the characteristics of groups and the legal world, as well as to the dynamics of the field. this adaptation needs, as it has been shown, a great investment of time and creativity to overcome the difficulties inherent in gaining access into this particular field and to high-profile personalities. the strategy of being there facilitates the perception of events as an opportunity to get in contact, both with the actors and with the public debates. however, this path requires errors, failed searches and new beginnings that are all necessary to configure an entrée to the field and its agents. the second contribution of showing the making of the research lies in the fundamental richness of being willing to start an ethnographic journey within the same culture –the “vertical journey” suggested by da matta. this implies the willingness to learn the language of the natives, which might seem the same language but becomes distinct by using technical vocabulary that separates the native users from the rest of the population, where the researcher is included. this is another key to conducting ethnographies in one’s own culture, where distance is built and reissued in specific forms, without journeys to distant and exotic places. hence, the voice and words of the protagonists have a great value in themselves. for this reason, it is necessary to differentiate them from the analyses that we as social scientists carry out, securing that neither the voice of the natives nor the reflection of the researcher are made invisible or merge in each other. from this approach, we are invited to recover the potential of the comprehensive perspective that can be materialized from the social sciences to address the social construction of law. this strategy is needed to be applied both at the time of analysis of data, and later when writing the results. this exercise offers the opportunity to generate new social knowledge about the legal world, which does not reproduce the discourse of the agents, enchanted views, or interpretations that overshadow the social production of law. finally, my research shows the need to keep this debate open in the social sciences, in order to recover the legal field as a venue of social inquiry. from this perspective, it is possible to research renewed questions and to find renewed answers around justice, human rights and legal power considering their extraordinary weight in follow the actors: ethnographic keys for understanding legal activism for criminal justice reform in argentina the age of human rights journal, 13 (december 2019) pp. 63-74 issn: 2340-9592 doi: 10.17561/tahrj.n13.4 73 today’s society worldwide. to put it simple, for understanding the law we need to research beyond the law. references augé, marc (2007) [2006]. el oficio de antropólogo. sentido y libertad. gedisa: barcelona. bourdieu, pierre (2001) 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(2001). la etnografía. método, campo y reflexividad. norma: buenos aires. granovetter, mark (1978). “the strength of weak ties”, american journal of sociology, vol. 78, nº 6, pp. 1360-1380 [edición en español: “la fuerza de los vínculos débiles” en política y sociedad, vol. 33, 2000, universidad complutense de madrid, pp. 41-56]. latour, bruno (2008) [2007]. reensamblar lo social: una introducción a la teoría del actor-red. manantial: buenos aires. marcus, george (1995). “etnography in/of the world system. the emergence of multisited ethnography”, annual review of anthropology, n° 24, pp. 95-117 [traducción al español: marcus, george (2001). “etnografía en/del sistema mundo. el surgimiento de la etnografía multilocal”, en alteridades, 11 (22), pp. 111-127]. https://doi.org/10.1146/annurev.anthro.24.1.95 mira, julieta (2017). “una promesa de democratización. activismo, política y expertise jurídica en el proceso de reforma de la justicia penal en la argentina”, doctoral thesis, doctoral programme, faculty of social sciences, universtiy of buenos aires. sarrabayrouse oliveira, maría josé (2009). “reflexiones metodológicas en torno al trabajo de campo antropológico en el terreno de la historia reciente”. cuadernos de antropología social, nº 29, facultad de filosofía y letras – universidad de buenos aires, pp. 61-83. siméant, johanna (2002). “friches, hybrides et contrebandes: sur la circulation et a puissance militantes des discours savants”, hamman, philippe; méon, jeanmatthieu y verrier, benoit (directores). discours savants, discours militants: mélange des genres. l´harmattan: paris, pp. 17-53. thomas, robert (1993). “interviewing important people in big companies”, journal of contemporary ethnography, vol. 22, n°1, abril 1993, pp. 80-96. https://doi.org/10.1177/089124193022001006 vecchioli, virginia (2006). a luta pelo direito. engajamento militante e profissionalização dos advogados na causa pelos direitos humanos na argentina. tesis doctoral, programa de post-graduación en antropología social, universidad federal de río de janeiro, museo nacional: río de janeiro. ------. (2011). “presentación: profesionales del derecho, activismo jurídico y creación de nuevos derechos. hacia una mirada comprensiva del derecho desde las ciencias sociales”, revista política, universidad de chile, vol. 49, nº 1, pp. 5-18. https://doi.org/10.5354/0716-1077.2011.16268 ------. (2014). “la recreación de una comunidad moral y la institución de un relato legítimo sobre los derechos humanos en la argentina”, publicar, año vxii, n° xvii – diciembre 2014, pp. 1-27. received: july 17th 2019 accepted: october 1st 2019 https://doi.org/10.1146/annurev.anthro.24.1.95 https://doi.org/10.1177/089124193022001006 https://doi.org/10.5354/0716-1077.2011.16268 the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 61 article 25.2 of spanish constitution: a fundamental right of prisoners? josé pablo sancha díez1 summary: even though our constitutional court and a section of the spanish public law doctrine continue to support that article 25.2 contains only an instruction directed to the legislator in criminal and penitentiary matters, we could affirm that this aforementioned precept contains a real fundamental right to the reintegration of the prisoner, which is subject to constitutional protection. in the same way, the true sense that should be granted to the re-socialization, avoiding the de-socialization of the prisoners, will be allowed to conclude that they have the same rights as men in freedom, with the exception of the triad of article 25.2: contents of condemnatory ruling, sense of punishment and penitentiary law. keywords: prisoners, fundamental rights, constitutional court, resocialization. summary: i. doctrinal exegesis of article 25.2 of the spanish constitution; ii. article 25.2 in the jurisprudence of the constitutional court; iii. principle of resocialization against the voluntariety of treatment; iv. final considerations. i. doctrinal exegesis of article 25.2 of the spanish constitution before launching fully to the analysis of the only article dedicated specifically to the inmates by the spanish constitution, it seems convenient and necessary to visualize, even briefly, the origin of the constitutional precept, that is, its parliamentary procedure until its definitive drafting and its inclusion in the terms in which it was published in our constitution, in the boe (official newsletter of the state) dated december 29, 1978. quite rightly, professor reviriego, before starting a detailed study on prisoners under constitutional jurisprudence, carries out, within the regulatory framework of the rights of those, a thorough review of the parliamentary procedure of article 25.2 ec. in its original version, specifically in the draft constitution in its article 24, fourth paragraph, it was arranged: “prison sentences will have a purpose of reeducation and social reintegration and may not assume, in any case, forced labor”; not contemplating anything about the fundamental rights of prisoners. 2 1 doctor in constitutional law, universidad nacional de educación a distancia, spain (josepablo092003@yahoo.es). 2 reviriego, f., (2008). p. 13. for a more detailed study of the parliamentary origin of the current article 25, see chapter ii: “el marco normativo regulador de los derechos de los reclusos”, at his work “los derechos fundamentales de los reclusos”, pg. 13-24. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 62 this precept was subject to a large number of amendments (eight, specifically) among which will be highlighted, with reviriego picón, mainly three of them: -no. 123, which came to coincide with the wording of the current article 25.2 when establishing the following: "jail sentences will have a purpose of reeducation and social reintegration, and may not assume, in any case, forced labor. redemption of penalties in exchange for work will imply, in any case, the right to social security for the prisoner and the beneficiaries thereof. those sentenced to prison who are complying with it shall enjoy all the fundamental rights guaranteed in this chapter, with the only exception of those that are expressly limited by the content of the sentence that condemns them, the purpose of the punishment and penitentiary law". (reviriego picon.2008:13). -on the other hand, amendment nº 604 had as an objective the inclusion of a concrete and interesting appeal to the dignity of the prisoner, as well as to his fundamental rights: “jail sentences must respect the dignity of the prisoner and the rights thereof that are not affected by the sentence”. -thirdly, it is worth mentioning amendment nº 451, which wanted to introduce a reference to the place where the sentence would be met, the prison, as a consequence of the precarious situation in which most of these were found, thus avoiding the compliance with the objectives of re-education and social reintegration: “penitentiary facilities will adapt their organization, structure and functioning to the fulfillment of the previous purposes” (reviriego picon.2008:13). -after the amendments, article 24 came to collect, already in the report of presentation, the express reference to the predominance of fundamental rights of the prisoner included in the chapter, being this finally with the following wording: “jail sentences can not consist in forced labor and they will be oriented towards re-education and social reintegration. the person condemned to prison who is fulfilling the same, will enjoy all the fundamental rights guaranteed in this chapter, with the only exception of those that are expressly limited by the content of the sentence that condemns them, the purpose of the sentence and penitentiary law. sanctions of civil administration may not consist of jail sentences.” (reviriego picon. 2008:15). later, the verdict of the committee on constitutional affairs and freedoms collected all the circumstances described by a wording that practically did not suffer changes during the rest of the parliamentary procedure. only a modification in the style was made to give more importance to the principles of reeducation and social reintegration and also to the inclusion of access to culture and personality development (reviriego picon: 2008). josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 63 on the other hand, the text of the project approved by the plenary of the congress hardly underwent changes during this moment of processing. during the processing in the upper chamber, five amendments were made: related to administrative sanctions, the work of the prisoner, survival of the rights of prisoners and their guardianship, access to culture and the exercise of sexuality. however, when going through the commission's opinion, the one what was until then article 24.4 of the project became article 25.2, generating three particular votes on said second section which were removed in a last instance. finally, the mixed commission congress-senate modified the wording of article 25.2, advancing the provisions regarding the re-education and social reintegration of jail sentences and security measures, remaining as follows: “jail sentences and security measures will be oriented towards re-education and social reinsertion, and will not lead to forced labor. the person condemned to prison who is fulfilling the same, will enjoy all the fundamental rights guaranteed in this chapter, with the only exception of those that are expressly limited by the content of the sentence that condemns them, the purpose of the punishment and penitentiary law. in any case, it will have the right to a paid job and the benefits derived from social security, as well as access to culture and the integral development of personality.” in short, reviriego picon will conclude that the final result of the procedure is largely plausible, even though it is evident that it maintains some structural or coherence problems, with some deficiencies in its subjective configuration”; being in any case "a singular precept, innovative and almost unprecedented in the comparative field" (reviriego picon 2008: 24). once the mandatory and interesting review of the origin in the legal field, in parliamentary session, of the constitutional precept of article 23 that occupies us, it is appropriate to proceed to address the various doctrinal positions on it. in this way, according to cobo del rosal and boix reig (1983: 88), we are faced with a “criticizable precept” with a confusing content that can give rise to the most varied and unique interpretations, which are attributed to the successive modifications suffered by the text in its constituent process together with the introduction of broad formulations, and which is also the result of parliamentary controversies in the face of concrete pretensions with a difficult constitutional adaptation. article 25 of our spanish constitution, represents the inexcusable starting point for the study of the legal-penitentiary relationship, characterized as a relation of special subjection by the german dogmatic of the nineteenth century, (and by much of spanish constitutional and penitentiary doctrine, as well as by the constitutional court until not long ago) and of the legal status of the prisoners. at the same time, that precept specified the limits to which prisoners would be subject, outside of which the remaining fundamental rights would be kept intact; an issue that, as we have been checking article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 64 throughout this work and that have also been systematically denounced by many of the authors who have dealt with the issue, has not been met in prison practice. to such an extent the fundamental rights of inmates in penitentiaries in our country have not been respected, which has allowed some authors to make the following conclusion: “in spite of normative declarations that indicate that prisoners should only be deprived of their freedom, each and every one of their fundamental rights (...) are devalued in comparison with the tutelage that those same rights have when they refer to those who live in freedom " (rivera beiras 1994: 47). however, in my opinion, it is to praise the intention of the constituents to welcome, in our constitution, the ideal of resocialization and the humanization of the spanish prison system, as it had already been done by other international standards on the subject such as "minimum rules for the treatment of prisoners", adopted in 1955 within the united nations. the latter emphasize that the purpose of the deprivation period of freedom is precisely the attainment of the rehabilitation ideal.3 it is praiseworthy, also, the systematic location of the aforementioned precept in the first section ("of the fundamental rights and public freedoms") of the second chapter ("rights and freedoms"), of the first title ("of the fundamental rights and duties"), which gives it the maximum legal protection of those contemplated by the article 53 of the sc. and i refer to it as praiseworthy because this have allowed a patriotic sector of the country to maintain the fundamental right character of the re-socializing purpose of custodial sentences in our constitutional order, allowing application for “amparo” to our constitutional court. as garcia morillo (1997: 27) points out, article 25.2 is not a precept nor is it a descriptive of the spanish prison system, nor is it a purely programmatic norm, derived from simple objectives, but rather it establishes legal mandates of mandatory compliance, whose content can be cited directly to the respective judicial bodies. for delgado rincon (2007: 79), the constitutionalisation of these two issues (the purpose of the social reeducation of custodial sentences and the recognition of fundamental rights in favor of prisoners), means that we are in the presence of a original and innovative precept, since it is unparalleled in our historical constitutional texts, as well as those of most of our surrounding countries. likewise, for mapelli caffarena (1983: 131) we are in the presence of an original precept, since this recognizes the validity of the fundamental rights of the 3 “purpose and justification of jail sentences and custodial measures are, in short, protect the society against crime. this will only be achieved if the period of deprivation of liberty is used to get, as far as possible, that offender, once released, not only wants to respect the law and satisfy his needs, but also that he is capable of doing so.” josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 65 condemned in the execution phase of the sentence, thus implying important limitations to the activity of the penitentiary administration, together with the objectives of resocialization that are attributed to the sentence and which to date had not been included in a constitutional text. according to the jurisprudence of the constitutional court the following deduction is made: “we are facing a mandate that is directed to the legislator to guide the penal and penitentiary policy, through the treatment, which has to be coordinated with this essential purpose of the penitentiary institutions and that, as indicated in article 1 of the general penitentiary law, it is none other than the retention and custody of detainees, prisoners and condemned, which entails guaranteeing and ensuring the safety and proper conduct of the center". and that "the orientation of custodial sentences towards re-education and social reinsertion that includes the constituent as an entry for the second section of article 25.2, does not allow to speak about the existence of a subjective right of the prisoner to which the totality of life of aspects of the stay in prison must be governed by that one”. (reviriego picon 2008: 45). as boix reig review (1979: 11) 9, article 27 of the italian constitution provides that "penalties may not consist of treatments contrary to the meaning of humanity and they should tend to reeducation of the prisoner". although both precepts, italian and spanish, include special prevention as the purpose of punishment, there are three differential criteria: -at italian text, reference is made only to penalties, obviating the security measures; -the constitutional requirement is not mandatory in any of the constitutional texts, although italian is more permissive, thanks to the expression "should tend". -the objective in the spanish constitution is broader by admitting not only reeducation but also social reinsertion. ii. article 25.2 in the jurisprudence of the constitutional court the second of the questions involves discerning whether, from this merited article, a fundamental right of prisoners is born or it is only a constitutional mandate to the legislator at the time of the regulation of custodial sentences. according to córdoba roda (1980: 153), our constitutional text has opted for a substantial notion of the function of penalties and security measures depriving freedom, instead of a formal notion, which would have been about the idea of abstention from the subject of committing other punishable acts in the future. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 66 constitutional court has had the opportunity to state what would be, in our constitutional and criminal law, the objectives of the custodial sentence. in the same way we have included in the previous section the doctrinal positions on article 25.2 of our "norma normarum" and also on the objectives of the prison sentence. therefore, the reeducation and social reinsertion of the said constitutional precept, to which the doctrine also refers with the name of re-socialization, it will be part of the purpose of general prevention. the constitutionalisation of this purpose of jail sentences within our order is a manifestation of a tendency that had been found in the ordinances of western countries to gradually abandon the criminal retribution in favor of prevention through the re-socialization of the prisoner, as maintained by carcedo gónzalez and reviriego picón (2007: 81). before getting into the different doctrinal opinions on the purposes of custodial sentences that our "lex superior ", could have collected, we have to ask ourselves a question: if the search for the rehabilitating purpose is applicable only to the prison sentence or on the contrary it would be predicable of all kinds of penalties.4 some of the doctrinal sectors have understood that the constitution rightly limits reintegration and social reeducation to custodial sentences, on the understanding that the rest of the penalties, due to being carried out in freedom, would not compromise social ties of the person and therefore would not affect their reintegration.5 i understand that the re-socializing purpose contained in the constitutional mandate and with the principle of humanization of penalties is more in line the position maintained by rodríguez devesa and serrano gómez (1995: 883), which consider that reintegration and reeducation should be extended to the rest of the penalties, both those that are pecuniary and those that are of deprivation of rights. for serrano alberca (2001: 602), the introduction of reeducation and social reinsertion into the constitution has the purpose of establishing the orientation that the legislation must follow, without this implying that the preventive purpose, both general and special of punishment is forgotten; so for who receives the constitutional norm is fundamentally the legislator. on the contrary, cobo del rosal and boix reig (1982) understand that the constitutional norm can not become a constitutional dilemma of the theory of 4 for a better understanding of jail sentences and their classes, we bring up the article 35 of the current penal code, which states that: "they are deprivation of liberty, permanent reviewable prison, prison, permanent location and subsidiary personal liability for non-payment of a fine. its compliance, as well as the penitentiary benefits that suppose the shortening of the sentence, will be adjusted to the dispositions in the laws and in this code", in the wording given by the law 1/2015, of march 30, by which it was modified the law 10/1995, of november 23, of the penal code (b.o.e., march 31), previously, article 32 had already established that "sentences that may be imposed under this code, whether they are of a principal nature or as accessory are: deprivation of liberty, deprivation of other rights and fine." 5cid moliné, j., “the right to social reintegration (considerations regarding the recent constitutional jurisprudence regarding permits)”, judges for democracy, no. 32, july 1998, p. 3. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 67 punishment, but simply sets a criterion by which, in certain circumstances, it should be governed the execution phase of the penalty. therefore the fact that the first paragraph of article 25.2 sc is located only in the penitentiary area, that is, that this affects only one of the instances of the penal system, the one relative to the execution of certain sanctions such as penalties and measures deprived of freedom, makes that the addressee of the constitutional norm is exclusively the penitentiary administration. in that order of ideas another patriotic constitutionalist author (de otto 1988: 43) will come to say that in short, we are facing a "final programming norm" which, due to its indeterminacy, leaves a wide margin of action to the public powers, which may and must make this non-exclusive purpose compatible with other purposes that may arise.6 bueno arus came to systematize, in the decade of eighties of the last century, the different doctrinal, patriotic and critical positions on re-socialization as the purpose of punishment: -a classic stance: contrary to this purpose and treatment, for believing that, with these, the penalty is stripped away of its essence: the need to be perceived as punishment. -a liberal position: dissatisfied with the same because there is a real risk of manipulating the personality and coerce the freedom, which is already limited by the penalty, to be imposed officially, in any case, certain values. something that is contrary to a democratic society and, therefore, pluralistic. by assuming the risk also of violating the right to a fixed penalty (principle of legality), given, according to the affirmers of this position, the indeterminate character of the treatment. -a critical-anarchist position: by repudiating through it all kinds of penal sanctions, imprisonment, legality and state. -a critical-marxist position: about this the aforementioned author, in the same study, commented: "the prison sentence is questioned as a bourgeois invention, aimed at the creation of a subjugated labor force, and as a procedure of criminalization and of labeling, but the penalties and measures of imprisonment in the socialist states are maintained. treatment is attributed to being an illegal and undemocratic manipulation of the personality, but only in the bourgeois states or those of liberal democracy, because in the popular democracies it is attributed legislatively to the penalties and measures a predominantly educational purpose. it is considered that re-socialization in a liberal-capitalist society is the negation of human freedom, but re-socialization is practiced in a socialist society as the culmination of that freedom. a position that, of course, is consistent with an eminently politicized vision of criminal law, but surely not very respectful of the fundamental rights of the person when treatment and re-socialization are 6 we must remember briefly on this point, that, in the opinion of this author, our constitution has been qualified as the "constitution of concord", by allowing, as a consequence of the empire of commitment that this is fruit, can govern political options of diverse nature, without violating the constitutional text. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 68 conceived in a maximum sense, that is, as a necessary assimilation of the values and attitudes that have been officially established”7. it is now appropriate to make an examination of the jurisprudence established by our constitutional court on this purpose. for once it has been declared repeatedly that "reeducational and re-socializing purposes are not the only admissible objectives of deprivation of freedom“, and that, due to this, it can not be considered contrary to the constitution "the application of a penalty that may not respond exclusively to that point of view."8 and this is so, because it is understood that there is another second and more valuable purpose of the penitentiary institutions, the retention and custody of detainees, prisoners and condemned: “(article. 25.2 ce) does not create a subjective right that every aspect of the organization of life in prison be governed exclusively by it, regardless of the primary purpose of the institutions of "retention and custody of detainees, prisoners and condemned" (article 1 logp) that involves "guarantee and ensure safety, good order of the center's regiment".9 all this being said, the relative significance of the importance of principle of resocialization in the interests of the enhancement of retention and custody as main objectives of punishment, is not only a consolidated line of jurisprudence, but is also positively pre-eminent in the articles 1 logp and 2 of the penitentiary regulation, by mentioning in the first place the assurance or custodial objectives before those of reeducation or social reintegration. some authors, such as carcedo gonzález (2007: 105) share the position of the constitutional court, attributing to custodial sentences together with re-socializing purposes, others of a preventive or retributive nature, as in the case of substitute detentions for non-payment of fines (stc 19/1988) or in the case of minor house detention (stc 120/2000), although they maintain doubts about the constitutionality of the reform implemented in the penal code by organic law 7/2003, which introduced tougher penalties for certain offenders and a considerable restriction of the conditions for access to prison benefits. in line with this issue regarding the duration of sentences and their relation to the principle of re-socialization, it has been stated by criminal lawyers (mir puig.1997: 679) that the imposition of excessively long prison sentences contradicts frontally the ideal of the re-socialization, because it eliminates any possibility of hope in the condemned. according to córdoba roda (1980: 158) it could be interpreted that article 25.2 sc establishes that reeducation and social reinsertion are the sole purpose of 7 bueno arús, f., “la legitimidad jurídica de los métodos de la criminología clínica aplicada al tratamiento penitenciario”, bulletin of information of the ministry of justice, nº 1215 (1980), section iii. 8 actions tc 985/1986, of november 19 and 1112/1988, of october 10; and stc 19/1988 of february 16. 9 stc 119/1996, of july 8, fj, 4th. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 69 custodial sentences, in which case no custodial sentence could be imposed in all those cases. in which, having committed a crime that leads to a custodial sentence, it does not need reeducation or social reinsertion. at the same time, a principle of humanization of penalties that prohibits the imposition of useless sanctions is being accepted, when these are not clearly harmful to the condemned or inspired by a simple objective of punishment. the other issue that the maximum interpreter of the magna carta had to deal with was precisely to determine whether the content of article 25.2 contained a true fundamental right or, on the contrary, it only meant a mandate addressed to the legislator in criminal and penitentiary matters. our "court of constitutional guarantees" started by claiming that it is not possible, therefore, "to transform in a fundamental right of the person what is not but a mandate of the constituent to the legislator to guide the penal and penitentiary policy, mandate that does not derive subjective rights."10 in case it had not been sufficiently clear, our constitutional court will reiterate (in outstanding resolutions relapsing on amparo motivated by the enjoyment of penitentiary benefits): “reintegration is not a fundamental right, but a mandate to the legislator to guide the penal and penitentiary policy: it is intended that in the penitentiary dimension of the punishment, an orientation directed to these objectives be followed, without these being its sole purpose.11 or as has just been recognized in the stc of this chamber of march 31, 1998, (refers to stc 75/1988, of march 31 in its fj 2º) although such a rule may serve as a parameter of the constitutionality of laws, is not in itself a source of subjective rights in favor of those sentenced to custodial sentences, and still less of fundamental rights subject to constitutional protection (stc 88/1988, of april 21, fj 2º). the constitutional court has maintained in constant and reiterated jurisprudence that can not be spoken in purity of a fundamental right susceptible of “amparo”, despite the constitutionalization of the objectives of reeducation and social reinsertion of penalties within the catalog of fundamental rights. it is rather a mandate from the constituent to the legislator to guide the penal and penitentiary policy from which no subjective right will be derived, without prejudice that it can serve as a parameter of the constitutionality of the laws (sstc 91/2000 and 8/2001).12 the spanish constitutionalists and criminalists hold divergent opinions in this regard. for a doctrinal sector article 25.2 ec does not contain a fundamental right, so we 10actions tc 15/1984, of january 11, 739/1986 of september 24 and 112/1988 of october 10; sstc 2/1987 of january 21, 119/1996, of june 24, 119/1996, of july 8, 167/2003, of september 29, 2/2006, of january 16, 196/2006 of 3 of july, 160/2012 of september 20, 11sstc 2/1987, 29/1988, and 112/1996. 12the consequence, as appreciated by carcedo gonzález (2007: 106), is profound, since the protection of individuals against the actions of the prison administration or decisions of the courts that are contrary to the constitutional principle of the article 25.2 ce, will be carried out through the ordinary judicial way, and not through the constitutional protection, since the reeducation and the social reinsertion do not constitute a fundamental right of the convicts, according to the constitutional jurisprudence. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 70 could only speak of a guiding principle of criminal and penitentiary policy, serving as a parameter of constitutionality of legislative rules that will be set apart from such constitutional guidance. on the other hand, we find a group of authors who consider that it maintains, straightforwardly, that article 25.2 ec constitutes a fundamental right of the prisoner. let's see in more detail the aforementioned positions and their respective arguments. among those who support the denial of article 25.2 sc as a fundamental right we find álvarez garcía (2001: 37), considering that this is not a fundamental right, among other reasons because the state is not in a position, objectively, to ensure such purposes with the only instrument of custodial sentence. the aforementioned author, based on these considerations, believes it more appropriate that the article should have been included in chapter iii of title i of the sc, instead of in chapter ii. in the opinion of carcedo gonzález (2007: 106), it is not possible to talk about a fundamental right of the prisoner to reeducation and social reinsertion, among other reasons, because from that formal perspective, it must be admitted that not all the norms included in the first section of chapter two of the title i of the constitution are declarative of fundamental rights. consequently we are in the presence of a guiding precept of criminal and penitentiary policy that binds all public authorities equally: legislative, executive and judicial. in this line of thought we find prominent constitutionalists who understand that only the fact that article 25.2 is included in the first section of the second chapter of title i is not enough to consider reeducation or social reintegration of the condemned a fundamental right, due to: “in that section there are fundamental rights, from which a whole sequel of subjective ownership derives; but there are also many other things ... constitutional rules, constitutional principles or general principles of law, norms of action or organization, organizational criteria or principles of order, institutional guarantees, procedural guarantees; different elements, which ultimately must be distinguished from fundamental rights” (martín retortillo et al.1998: 85-86). on the contrary, segovia bernabé (2006: 7-8), has pronounced itself critically against this line of jurisprudence, on the understanding that the constitutional court has made a short-lived interpretation, a light interpretation, by considerably reducing its essential content and to conceive what is expressed in said precept as a guiding principle of a generic nature and not as something more concrete that can generate subjective rights. at the same time there is a sector of spanish criminal doctrine that has been insisting on the need for the conceptualization of article 25.2 sc as a fundamental right and that maintains that the incardination of the aforementioned article in chapter two of title i, and not in the third one, obeys an express intention of the constituent to grant the josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 71 same article an extra, elevating it to the category of fundamental right of the prisoner, extending this consideration to the rights to a remunerated work and social security. so that otherwise, that is, denying the condition of fundamental right to the aforementioned article, “far from being an element of invigoration, it becomes a mere declaration of good will elevated to constitutional rank, a legal utopia is degraded to a legal absurdity” (mapelli caffarena 1983: 154-157). there are even authors who distance themselves from the antagonistic positions enunciated to understand that we are in the presence of a kind of supra-guarantee. this is highlighted by navarro villanueva (2002: 391), who understands that reintegration and reeducation should be characterized as "supra-guarantees" because it is one of the guarantees specifically provided for the execution of custodial sentences, because such guarantee should be the delimiting parameter to determine the scope of effective judicial protection in the process of execution of the sentence and, ultimately, because reintegration and reeducation can justify in a broad sense the possible alteration of the original executive title, either by suspending it or either modifying it. the constitutional court denies that in these cases the sentence should not be executed, but the reason should not be that there is no fundamental right to re-socialization but because, as we have said previously, the specific and exclusive purpose of the penalty of deprivation of freedom is not the re-socialization, on the contrary, we can not forget the purposes of special and general prevention of punishment and even for some, the retribution, which would still be latent despite the re-socialization of the prisoner or even the lack of need for it. however, despite not being considered the reintegration and reeducation as a fundamental right of the person sentenced to a jail sentence, on some occasion it has been affirmed that this reinsertion purpose does give rise to fundable fundamental rights. in this sense, it has sometimes been deduced from the purpose of reinsertion a special jurisdictional guarantee of the prisoners in the penitentiary precincts or even, a "right to social reintegration once it is achieved". in no way we are facing a doctrinal discussion without relevance. whether or not to consider reintegration and re-socialization as a fundamental right of the person deprived of freedom has a series of consequences of greater significance than its mere characterization as a constitutional mandate or even as a constitutional principle. in the opinion of urías marínez, the court's doctrine comes to distinguish three moments in the legal effectiveness of custodial sentences, applying the mandate of art, 25.2 sc in general, to only one of them. it can be differentiated in this way between creation, application and fulfillment of the penalty. at the time of the application of the penalty, the constitutional court understands that there is no right on the part of the convicted that the penalties that are applied are appropriate for its specific case for the purpose of re-socializing. as for the creation of custodial sentences, it has already been seen how the jurisprudence progressively denies that it is possible to control the adequacy of criminal norms to this objective; either because of the respect for harmonizing freedom article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 72 on the part of the legislator, or because of the impossibility of controlling the constitutionally necessary degree of reinsertion and the way of achieving it. however, with regard to penitentiary legislation, at the time of carrying out the sentence, it seems that the trend is more favorable for the rehabilitation purpose serves as a parameter of constitutionality.13 iii. principle of resocialization against the voluntariety of treatment the word ´resocialization´ appears for the first time in the edition of 1927 of the lehrbuch of von listz. the scourge and, at the same time, the greatness of the term "resozialisierung", re-socialization, begins with its own denomination. in principle it seems to be conceded to the action of re-educating and inserting a certain mechanistic character that can be seen transcended by the socializing imprint, as creation of optimal conditions, of which the word re-socialization enjoys.14 the terms used by the constituent in the wording of article 25.2, points reviriego picón (2008: 49), have been criticized by the doctrine, for different reasons, but especially because of its vagueness and its lack of definition, which has determined the search for other alternatives such as re-socialization or reintegration. for the penitentiary author garcía-pablos (1986: 28-30) the term reeducation is unfortunate and a "lamentable nonsense", which conflicts with the current knowledge of criminology, prison science, behavioral sciences and the criminal policy itself. he will add that the reeducation function deserves some additional reparation, from the prism of its legitimacy in a plural and democratic society under the postulates of a social and law state. reeducate could mean, in this sense, indoctrinate, domesticate, standardize, something which exceeds the border of anachronistic paternalism to become an attack on the rights of the individual, something inadmissible no matter how much it is executed, paradoxically, in the name of the prisoner's own benefit (garcía valdés .1995: 32). for álvarez garcía (2001: 41), and continuing with the terminological issue, reeducation-reintegration should be understood as re-socialization or social recovery, as opposed to the concept of reeducation or amendment. the objective of this, continues the aforementioned author, is none other than to get the subject to acquire the ability to live in society with respect for criminal law, conditioning it to the dominant values in a certain community but only in its external appearance. 13 urías martínez, j., “el valor constitucional del mandato resocialización”, revista española de derecho constitucional, nº 63, september-december 2001. 14peñas roldán, l., “resocialización: un problema de todos”, anales de derecho, nº 14, 1996. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 73 on the other hand, to reeducate, according to mapelli caffarena (1983: 150-151), consists of compensating the lacks of the prisoner in front of the free man offering him possibilities so that he has an access to the culture and an integral development of his personality. for bueno arús (1987: 233-235), social reintegration implies the "second socialization", however, he understands that reintegration is not the only objective, not being incompatible with social retribution or protection. on the other hand aranda carbonell (2009: 23) talks about an adaptation to the norms and juridical goods belonging to the community, differentiating between moral resocialization or maximum programs that consist in the subject internalizing and adopting social norms. mapelli caffarena (1983: 151) defines reinsertion as "putting one thing back into another: in this sense, reinsertion is a process of introducing the individual into society, it is no longer treated as in the case of reeducation, where it is facilitated the learning so that he knows how to react properly at the moment of release." mapelli caffarena (1983: 150) however, although he points out that reeducation lends itself to being understood as manipulation, domination or imposition of values, it interprets the term as the compensation for the lacks of the prisoner in comparison to the free man, offering possibilities to have an access to culture and an integral development of the personality, while reintegration refers to directly favoring active contact between the prisoner and the community, even this one goes so far as to affirm that the non-use of the term ´re-socialization´ is due to the lack of legislative precedents. garcía-pablos de molina (1986: 34) refuses to consider reeducation as a prior and obligatory step to achieve such reintegration, since "the term social reinsertion refers to the opportune reunion and adaptation of the individual to the community once the sentence has been served, which does not presuppose qualitative changes in the personality of the same, but functional and welfare adjustments by others to make possible the return to the habitat of coexistence of man. affirms that this supposes more the need of positive benefits on the part of the community in favor of the former prisoner, that of changes in the personality or alteration of the axiological code of this one". for this author, reintegration involves adapting the prisoner back to the social order and the primary purpose of punishment is not the social reintegration of the prisoner, since the deprivation of liberty destroys and annihilates, separates man from the community, negatively affects the factors and mechanisms of socialization, the primary groups themselves, although he admits that this is an inspiring principle of the penitentiary institutions. once the reference to the constitutional terminology embodied in article 25.2 is finalized, we will now focus on the evolution suffered in recent decades by the principle of resocialization as well as its connection to the treatment regime. from the last third of article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 74 the last century, the classic criminal law or law of punishment, repressive, gives way to a right, still incipient, of treatment. “however, the idea of resocialization has passed in a relatively short time since it was the constitution of a future alternative to classic criminal law to enter into a serious crisis” (mir puig 1989: 35). as it has happened with so many other institutions that have been taken from european law, our country, in the middle of the crisis of the rehabilitation ideal in the seventies in those countries that pioneered the principle of re-socialization, approves the first organic law of democracy, the general penitentiary law (logp: spanish acronym), in which by constitutional mandate, it was established that the primary objective of the penitentiary institutions was the reeducation and social reintegration of those sentenced to penalties and penal measures depriving them of freedom. the different international instruments in the field of human rights have already been reviewing the importance of treatment in the re-socializing purpose of prisoners. this was reflected in art. 10.3. of the "international covenant on civil and political rights" (december 19, 1966) by providing that: “the penitentiary regime will consist of a treatment whose main objective will be the reform and the social re-acquisition of the prisoners. minor offenders will be separated from adults and will be subjected to a treatment that is appropriate to their age and legal status". previously, the united nations minimum rules of 1955, had already embodied it in the rule no. 59, recognizing, 'expressis verbis', the need for treatment to achieve the reintegration of the prisoner in civil society: “to achieve this purpose, the prison system must use, trying to apply them according to the needs of the individual treatment of offenders, all healing means, educational, moral, spiritual, and of any other nature, and all forms of assistance that can have available”. this line has been maintained by the united nations in the "12th congress of the united nations on crime prevention and criminal justice", held in salvador (brazil), from april 12 to 19, 2010. the treatment in prison should be understood as a program of socializing actions that intend to make the inmate a person with the intention and ability to live respecting the criminal law, meet their needs and develop an attitude of self-respect and responsibility with respect to family, neighbor and society in general (article 59 logp), so that it supposes a progress in the education and the coexistence, a modification of the personality (article 65.2 logp) and a change of values (bueno arús 2005: 153-154). to that possible modification of the values or of the personality of the prisoner as a consequence of the treatment, offers a response garcía-pablos de molina (2005: 295), pointing out that it is: “the society that must offer the necessary means but not impose them", because it could constitute an interference in the individual sphere of the prisoners, absolutely inadmissible in a social and democratic state of law, respectful of their fundamental rights. in addition, "it is not only the prisoner who needs to be resocialized, but society itself", adds the aforementioned author. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 75 likewise, the legitimacy of re-socialization is also questioned from critical conceptions, such as the approach labeling theory or labeling theory, psychoanalysis and critical criminology. in common it is considered that it is the society and not the offender that needs to be changed. it is society that generates crime, so it is not necessary to treat the criminal but the criminogenic society15. i must inexcusably emphasize now the voluntariness of the treatment and its free acceptance by the prisoner, so that its imposition would be an attack against human dignity, proclaimed in article 10 ce without any exception, and of the fundamental rights of the condemned. in order to guarantee a minimum of effectiveness in its application according to the requirements of the behavioral sciences, and especially for reasons of due respect to the prisoner's rights are not affected by the conviction, the treatment can not be imposed coercively, but it is necessary that the prisoner freely accept to submit to it, because it requires the voluntary cooperation of the subject treated. the treatment, as well as the different methods and activities that it entails, must necessarily be voluntary and, consequently, the prisoner must be able to reject them in a valid manner. “the imposition of the treatment, apart from undermining the principle of respect for the personality of the prisoners enshrined in art. 3 of logp, already means its own failure". (manzanares samaniego 1986: 933). in fact, imprisonment in penitentiary enclosures is characterized by the appearance of a specific subculture, the prison society. therefore i can conclude that the prisoner is de-socialized in prison, because it has to socialize for life in prison, which requires new rules of conduct. in this way: “two different and even contradictory systems of life coexist in the prison: the official system, represented by the legal and regulatory norms that control life in prison, and an unofficial system, that is what really governs the lives of prisoners. the first thing that makes the prisoner is, if wants to survive, adapt to the way of life and the rules imposed by other inmates. the prisoner has no choice but to adapt to the uses of life and customs that other inmates impose on the prison. adopt a new language, develop new habits in eating, dress, shape its life to new hours, try drugs that until then had never tried, assume leadership or secondary roles in the group of inmates in which it is integrated ... and although this process is more or less long and affects different inmates unequally, everyone agrees that this negatively affects the treatment”. (hassemer and muñoz conde 1989: 156-157). 15mir puig, s. (1989: 38), who recalls the convergent purpose, even with important differences, of the theories of approach labeling, psychoanalysis and critical criminology. thus the theory of labeling defends that crime does not come from an intrinsic quality of the action of the offender, but is the product of social labeling, a label that certain criminalizing sectors assign through the criminalization processes granted to conducts that are neutral by themselves. on the other hand, psychoanalysis affirms that the offender is only the scapegoat in which the faults of society are projected. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 76 this imprisonment of the inmates, to which clemmer referred in the decade of the 1940s, takes place in the opposite direction to the re-socialization treatment, not only preventing it, but also producing a greater de-socialization, and this is possible in the current prisons (for the one that most convicts bring with them from their criminal social environment). “in prison, the inmate generally continues and even improves his criminal career with contact and relations with other prisoners, loses social sensitivity to live then in freedom and acquires a rejection attitude towards society. the prison certainly changes the one who has entered it, but generally this is done to make it worse” (hassemer and muñoz conde.1989: 157). to this it would be necessary to add a recurring problem in prison practice, such as the lack of resources and the shortage of trained personnel who adequately carry out rehabilitative treatment in penitentiary institutions. checking the real situation of our prisons “it is a real obstacle to try the re-socialization in the prison environment” (mir puig 1994:145). in this sense, the doctrine reminds us (garcía-pablos de molina 2005: 296-297) that with regard to concrete treatments, they are in crisis, considering the results that occurred in the nordic countries. and this, among other reasons, because we lack the necessary material and economic means to provide timely individualizing therapy, as well as the insufficiency of current scientific knowledge to prescribe and implement in each case, or group of cases, the appropriate resocialization program. penitentiary practice states that: “utopia of the absolute or relative resocialization of each and every prisoner deprived of freedom seems untenable, in similar terms to what roxin proposed, from the dogmatic field, using as a technique the one that is contrary to the intended objective, the paradox more evident, the preparation of freedom from its most radical absence. and even we do not admit, without sinning of extremists, the argument that the prison treatment considers as reinsertion ways, both the technique of the penitentiary permits, as the most advanced of the conditional freedom and that therefore, the preparation of freedom contains gradual approaches to it. since these realities of prison treatment are undeniable, perhaps the obstacles are found more in the social mentality or in the behavior of the inmate than in the re-socializing end itself” (martín diz 2002:29). it will then be necessary to conclude with garcía-pablos de molina (1984: 243), that the most powerful argument against the rehabilitation ideal could be the panorama offered by the penal and penitentiary reality in many countries (...). from that point we accept a re-socialization concept aimed only at procuring the prisoner the material resources that facilitate their return to life in freedom. for the rest, the rehabilitative ideal is not only in crisis, but has fallen under policies of innocuization and social segregation (garland 2006: 239), which, having given absolute primacy to the preventive-special effectiveness of punishment, in the josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 77 search that the offender does not return to commit crimes, they separate him from society to avoid its danger. that is to say, the crisis of the re-socializing ideology has had as effects (hassemer and muñoz conde 1989:152): -reinforce the success of neoclassical criminal theories, especially in the united states of america, since after many years and intensive and costly treatment policy followed in prisons, which has not only involved large expenses to the administration, but also more taxes for those involved in the criminal conflict, has returned to a conception of punishment according to the guilt, given the limited success obtained with this policy. -place under suspicion of idealism the prison treatment, because it facilitates the state to perform all kinds of coercive therapeutic interventions on the prisoner, without knowing very well what the conclusions are. -strengthen the search for non-coercive re-socializing pathways, at least for certain types of offenders, for example, the theories of resocialization in freedom through emancipatory social therapy, or the "non intervention": treatment and coercion are contradictory terms if with the treatment the internal reconversion of the individual subjected to it is pursued. as serrano maillo, (i) and serrano maillo, (a) (2007: 164-165) remember, the criticisms of the treatment and the evaluations of the rehabilitation and resocialization efforts were not far from unknown in the seventies, although they converged in the work of martinson et al, who published an important and extensive review of correctional treatment experience, which encompassed diverse approaches. their findings were rather pessimistic about their usefulness. a year earlier, in 197416 martinson published a kind of summary of his collective work called "what works? questions and answers about prison reform", in which the author intended to answer the question "what works?" and that lacked an answer until then valid, because until the publication of the voluminous work of martinson, lipton and wilks, there was not any complete study on the subject. the article reached a devastating conclusion: "with few and isolated exceptions, the rehabilitative efforts reported so far they have not had any appreciable effect on recidivism." in this regard, martín diz (2002: 29) says that sixtytwo percent of the prison population, in our country, is a recidivist, which makes clear for much of the doctrine the failure of rehabilitative treatment. the article by martinson, in addition to several criticisms and disqualifications, has given rise to the so-called "doctrine that nothing works", but by failing to heed the call of the north american author, credibility is put at risk, and therefore the acceptance of the scientific community, one of the most noble ideas and aspirations of all human and social sciences, such as the rehabilitation and re-socialization 16 lipton, d., r. martinson, and j. wilks, the effectiveness of correctional treatment. a survey of treatment evaluation studies, praeger publishers, new york, 1975, pp. 184-189, 207-211, 223-228, 523-526. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 78 of criminals. such a noble idea must also be defended scientifically. (serrano maillo and serrano maillo 2007:166). returning to our country, the country's criminal doctrine17 has condensed the objections that can be objected to the principle of re-socialization, as a consequence of its crisis: -the coercive nature of resocialization through a prison treatment that the prisoner can not oppose, and that for this reason, could attempt against certain constitutional principles. -the foundation of the re-socialization in a reductionist and even classist vision of criminality, which would prevent the imposition of the prison sentence on the prisoners with certain crimes, such as the so-called occasional, passionate, economic or conviction criminals, those who do not want reeducation and who needs a social integration. -from a practical point of view, the poor expectations of the development of treatment that has to be performed in a penitentiary institution have also been objected, since the nature of the prison as a total institution ends up imposing its own logic, according to which the individual has to get adapted to a different environment from the outside world, a fact that often supposes an authentic desocialization with respect to the environment to which it will have to return later. regarding the first of the objections mentioned above, it has been maintained with a greater precision that "re-socialization or reeducation must not consist of a moralization of the prisoner, but of giving him the appropriate tools to develop personally within his personal choices". (terradillos basoco 1981: 22) as muñoz conde objects with respect to the possible coercive nature (or even that violates fundamental rights) of the treatment, the problem posed by many of the treatment methods is not, therefore, that of its efficacy in modifying the behavior or the personality of the inmate, but his own legality or compatibility with fundamental rights, because what seems innocuous in conditions of freedom, can be extremely dangerous in conditions of no freedom, in a penitentiary (hassemer and muñoz conde 1989: 156). although the current prison regulations imperatively, in its article 112, first paragraph, expressly order that the prisoner's participation in the planning and execution of his treatment be encouraged, and allow, in his third paragraph, the prisoner to freely reject or not collaborate in the realization of any technique of study of his personality, without it having disciplinary, regimental or degree consequences; and yet, the progression or revision of the degree depends on it; so “the prisoner is being induced to accept the treatment and with that it is being deprived to provide one of its fundamental characteristics: the voluntariness of the affected by it” (hassemer and muñoz conde 1989:155). 17 tamarit sumalla, j.m., garcía albero, r., sapena grau, f., rodríguez puerta, m. (2001: 33-34). josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 79 the repealed regulation of 1981, in its article 239 third paragraph, came to establish that the prisoner could freely refuse the treatment or decide not to collaborate in the realization of any technique of study of his personality, or method of treatment18, without it having disciplinary, regimental, or grade regression consequences. in the current penitentiary regulation of 1996, in its article 112, third paragraph (ut supra cited), any reference to the expression "treatment method" has been omitted, which may lead one to think that the prisoner can not refuse the application of a treatment method. if we add to it what article 5 of the current rp determines, among the duties of the prisoner to participate in training, educational and work activities, defined according to their shortcomings for the preparation of life in freedom, the prisoner's existence could be inferred to submit to this kind of "right-duty", which generates, given its bilateral nature, not only obligations in the penitentiary administration but in the condemned. according to this dominant approach in the doctrine and partly also in comparative law, the treatment is a right of the prisoner that prison administration has to offer and encourage, but never impose, so the first rule that should govern the prison intervention is to achieve the awareness of their need and the acceptance by the prisoner, because all the design of processing program will be useless if finally the prisoner does not have the consent, since the treatment is a right of the inmate, but not a duty to which he must submit (fernández arévalo and nistal burón 2012: 557-558). in the same sense, muñoz conde understands that the duty to submit treatment implies a kind of manipulation of the person. in my opinion, any hypothesis of this nature that allows the application of any method of treatment or study technique on the prisoner should be ruled out, since the prisoner's consent must necessarily be counted, in any case, under penalty of their most basic rights are violated. moreover, i consider that the expression contained in article 59, second paragraph, of the logp is not very fortunate, when after affirming that the treatment intends to make the inmate a person with the intention and ability to live respecting the criminal law, a person able to meet their needs. it is added: “it will seek to develop in them, an attitude of self-respect and responsibility, individual and social, with respect to their families, their neighbor, and society in general as far as possible”, that is why i can conclude that we could be in the presence of an intrusion in the inner sphere 18 as regards the treatment methods, and the medical or clinical concept of the treatment at logp, muñoz conde is also critical, as he resides, to a great extent, in our society (which is not treated without clutter) the etiology of criminality: “the prisoner is considered, in any case, as a pathological being that there is needed "to treat" and the result of that treatment must be the reinsertion into the social system of which one day, due to his bad head, he dared to leave. crime as labeling and the social, economic or political causes thereof, are not subject to the same treatment. it is therefore based on a "manichaeism" of good and bad, in which the offender, who is the only one to be treated, is clearly described as bad, leaving everything else intact. all this with a lavish clinical or medical vision of the treatment that remembers the best times of the lombrose theory of criminology and of his thesis of the “born delinquent": the delinquent is a sick being that is to treat; this is, then, the image and almost the stereotype of the drug ideology of treatment, from which more and more modern penitentiary specialists are moving away” (hassemer and muñoz conde 1989: 155). article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 80 of the subject-prisoner, that approach our criminal law from the fact to a criminal law of the author (arising from the kiel school), and inadmissible with the postulates of a rule of law. in this point, in the perspective of its legitimacy, where the principle of resocialization has suffered the most consistent consequences, especially from the classical liberal conception of the criminal law, when it is postulated that it is not a function of the latter to punish personalities or ways of being, but only acts, behaviors that the law can typify as accurately as possible (mir puig 1989: 37). towards which values the inmate has to be "redirected" through the treatment? to those of the dominant society? would not be the treatment presented as a possible violation of the political pluralism proclaimed, as a superior value of the spanish legal system, in article 1 of our constitution, as well as the free development of the personality of the article 9, as the foundation of the political order and social peace?. in this way it will be pointed out by muñoz conde that it does not seem consistent with the principle of re-socialization, nor with the basic postulates of a democratic state, a penitentiary system that tries to replace the values of the prisoner with those of the prevailing society, for which he will affirm, answering the questions raised, that: “in a pluralistic society but also for that reason ideologically divided on fundamental issues: in reference to which models or value system should be treated the offender?. the ideological problem raised once again here allows us to see, at the level of principles, how many are the reservations raised by the concept of treatment … but whatever the center where the treatment is carried out, a system aimed at modifying value systems or imposing different ones does not look good either” (hassemer and muñoz conde 1989: 158). it is likely that for this reason the minimum rules for the treatment of prisoners, adopted within the united nations in 1955, already prescribed, in its rule no. 66, that the treatment should be intended to inculcate in them the will to live in accordance with the law and to maintain themselves with the product of their work. the logp, which “participates in an unlimited belief in the treatment by dedicating a complete title, the third” (mir puig 1989: 153) starts, in its article 61, the need to make the prisoner participant in planning and execution of its treatment, giving rise to a concept of medical or clinical treatment19, against the broad concept of treatment under the regulation, including not only therapeutic-assistance activities, but training, educational, labor, sociocultural, recreational and sports, conceiving the reintegration of the prisoner as a process of integral formation of the personality, granting him efficient instruments for his own emancipation. as a result of this more social orientation of treatment, the prison regulation in its article 110, at the moment of defining the elements of the treatment, establishes that for the attainment of the re-socializing purpose of the prison sentence, the penitentiary administration will design training programs oriented at 19 article 62 logp enshrines the so-called scientific principles of treatment. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 81 developing the skills of prisoners, enrich their knowledge, improve their technical or professional skills and compensate for their shortcomings. likewise, it will strengthen and facilitate contacts with the outside world, taking into account, whenever possible the resources of the community as fundamental instruments in the reintegration tasks. it is therefore a question of involving society in general in the tasks of reinsertion of the prisoner, giving continuity to the interventions carried out in prison. on the other hand, in the same context, article 61, first paragraph of logp establishes that “the prisoner will be encouraged to participate in the planning and execution of his treatment and will collaborate to, in the future, be able to carry, with social conscience, a life without crimes”. while it is true that this collaboration can be voluntary or mandatory, the second section provides a powerful argument in favor of voluntariness by stating that “the interest and collaboration of prisoners on their own treatment will be stimulated as much as possible treatment. the satisfaction of their personal interests will be taken into account to the extent that they are compatible with the purposes thereof”. on the contrary, in the opinion of manzanares samaniego (1986: 938939) we are faced with a superfluous precept, because nothing new is contributed to the declaration of section 1. according to this author, his justification can only come through the distinction, more or less subtle and unnecessary, between the voluntariness of the subject to treatment and the freedom of collaboration in its concrete manifestations. in this way the same principle would be proclaimed at two different levels. in both, voluntariness is an indispensable requirement, but admits “promotion” (number 1) or “stimulus” (number 2). but in any case, article 61 of the l.o.g.p. constitutes: “an unfortunate rule, both in its wording and in its content, which has arisen as a result of an amendment that sought to avoid the character of mandatory rule towards the prisoner contained in the draft, but without achieving the legal consecration of the idea of voluntariness, to the point that, as will be seen below, some authors have been allowed to affirm the existence of a duty of collaboration on the part of the condemned” (tamarit sumalla 2005: 259). as stated by manzanares samaniego (1986: 934), “the same form used in article 61 logp (“will collaborate”) contains some coercive connotations that can only be eliminated through a joint interpretation of all the legal precepts related to treatment”. and even this same author asks himself whether voluntariness in the treatment will not be constrained, even indirectly, by the promotion and stimulation techniques established by law. presence in our prison system of these manifestations, contrary to the principle of voluntariness of treatment, has led some authors to consider that the prisoner's collaboration in the treatment constitutes a duty for him. for alarcón bravo (1978: 30-31) and garrido guzman (1983: 295-296), it is a legal duty without sanction, article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 82 unlike what happens with the regime where there will be corresponding disciplinary penalties. for good arus it is, instead, a duty with legal consequences. this author maintains, from the term collaboration (“will collaborate”) referred to in article 61.1 logp that there is a certain obligation of the prisoner to participate in the treatment, since his rejection will imply, if not, either disciplinary sanctions or the loss of certain penitentiary benefits (classification of degrees, open prison, conditional release...), with the consequence that the prison could represent for him a mere retention during the time established in the judiciary.20 for mapelli caffarena this approach can not be accepted in any way, in the first place, because the treaty, by depriving it of benefits, can not be punished more than that which is not in need of treatment. secondly, the execution of the sentence by the one who does not need treatment is also affected by resocialization so that it can not become a mere retention. third, because the judicial sentence understood as a sanction covers both the prisoners who reject the treatment and those who accept it. and, fourth, due to the promotion of consent understood in the terms established by bueno arus would not cease to be a fallacy responsible for concealing the imposed treatment. “in the penitentiary area where there is a situation of no freedom, any benefit not received has the same nature as a penalty. whether the treatment is accepted or not determines the transfer to an open regime center, we can not understand in what terms the freedom to accept it is conceived. from these reflections it is deduced that if the law has opted for the formula "will be promoted" it is necessary that this precept be complemented with another one in which the limits of this promotion are established, in order to find out if it really exists or not free collaboration of the prisoner” "(mapelli caffarena, 268). upon entry of a convict in a prison, either as a preventive or as a prisoner, once identified the deprivation areas, needs and interests of the convict, as established in article 20 of the pr, the technical team will develop the individualized program of intervention (pdi) in the case of preventive or treatment (pit) in the case of condemned.21 the elaboration of this program, according to the activities catalog of the center, will be carried out by the technical team, which will determine, in turn, the proposal for internal classification. when it comes to compliance with a custodial security measure (internment in a psychiatric center, internment in habits control center, or in a special educational center) in a “polyvalent prison”22 will be formulated, in accordance with the provisions of instruction 19/2011 (regarding compliance with the security measures of the prison administration), the so-called individual recovery program, which will include the different points contained in article 20 of the pr. the aforementioned 20 bueno arús, f., “notas sobre la ley general penitenciaria”, revista de estudios penitenciarios, nº 220223, 1978, pp. 115-116. 21 v. articles 9.1, 10.2, 16, 36, 69.1 of the general penitentiary organic law. 22 penitentiary regulation thus defines polyvalent establishments: “one. multipurpose establishment is understood to be that one fulfills the various purposes provided for in articles 7 to 11 of the general penitentiary organic law”. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 83 instruction regulates this possibility, allowing the fulfillment in a polyvalent prison of any of the custodial security measures. the individualized program for intervention or treatment will be approved by the treatment board, under article 273 of the pr, within two months of the prisoner's admission. instruction 12/2006, which establishes the protocol of action for the programming, evaluation and incentive of activities and treatment programs for prisoners, provides us with its specific format, which is as follows: analysis of deficiencies, requirements and interests; specific objectives; priority activities; complementary activities; and observations. for this purpose, the educator will inform the prisoner about the catalog of activities in the initial interview he has upon entering prison. the program will be communicated to the prisoner in order to address the complaints or requests raised by his treatment, and a copy of the pit will be delivered to him at that moment. and what represents the greatest importance that the acceptance of the programming made will have a voluntary nature, leaving a record of the same to the signature of the prisoner in the pit.23 returning with the systematized objections above to the re-socializing work, and taking into account that the essence of reintegration lies in enabling the person deprived of liberty to contact the outside world (cid moliné 1998: 47), it is easily concluded that “it is contradictory to reintegrate a subject into the social framework whose structural inequalities have played a decisive role in the generation of criminality: it would be to put him back in criminogenic circuits. equally contradictory would be talking about resocialization of individuals that were never integrated. and finally, it seems problematic to try to prepare individuals to live in freedom, through the use of a criminal system that moves substantially around the deprivation of liberty” (terradillos basoco 1981:22). the conclusion is that there is no sense in re-socializing the offender to integrate him/her into a society that is itself criminogenic, as highlighted by silva sánchez (1992.29), stating that if the re-socialization treatment wants to be successful it must be addressed not only to a modification of the behavior but of the internal attitude, which would suppose an unjustifiable interference in the rights of the individual. in short, it is an illusion, an unattainable chimera, because you can not educate for life in freedom depriving that freedom (neumann 2001: 191). in this context that i have been exposing, it is difficult to counteract the assertion that an execution of the prison sentence, although guided by a constitutional mandate to social reintegration, may lead to a true re-socialization of the prisoner. “educating for freedom in conditions of no freedom is a kind of squaring of the circle of difficult solution” (hassemer y muñoz conde 1989: 154). 23 the merited instruction states that the overall assessment of the prisoners participation in his/her treatment project will be carried out every six months, coinciding with the revision of the degree; which has earned him important doctrinal criticism by linking the result of treatment to grade progression, attributing to the treatment a certain "coercive" character. article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 84 it will be understood that one can not be very optimistic about the possibilities of treatment in the current spanish penitentiary system, even admitting all the honorable and surely very few exceptions that under this generic statement need to be made. (hassemer and muñoz conde.1989: 157). “does it mean then that we have to abandon the ideal of socialization?” mir puig asks. (1989.39). according to the opinion of this author, one should begin by rejecting any attempt of treatment imposed against the will of the affected party. then resocialization should not be abandoned radically, but should be understood as the achievement of fundamental social goods in a social and democratic state of law. on the other hand, it is advisable to warn about the dangers of the maximum programs (which are not limited to the subject being able to respect the law externally, but also aspire to achieve the ethical conviction of the individual and their internal adherence to values). then they are preferable minimum programs (away from a possible indoctrination) that only seek to facilitate a future life without crime: criminal law must not invade the field of conscience, the aforementioned author pronounces. de la cuesta arazmendi (1993: 19) warns about the danger of abandoning the re-socializing ideal, as it will lead to an exclusive focus on the prison intervention in custodial and repressive aspects, with a serious risk of converting prisons into mere deposits of humans. if the deprivation of liberty should be geared towards re-education and social reinsertion, re-socialization can not only be the goal of treatment, but must affect the prison intervention as a whole, or what is the same: the prison system must also be a resocializing penitentiary regime (de la cuesta arizmendi 1989: 59). this means running away from the cemetery-prisons (beristain 1986: 194), and resolutely fighting for the humanization of the penitentiary institution, a condition that is necessary for resocialization work. a presupposition for this humanization is undoubtedly, in addition to the modification of the current environment in prisons characterized by overpopulation and lack of resources (de la cuesta arazmendi.1988: 115), the consolidation and legal and jurisdictional strengthening of individual guarantees in the interior of the prison, through a more transparent regulation of the rights of the prisoners and prison procedures, as well as by strengthening the figure of the prison supervision judge, not without problems, but of elementary importance. in his striking work “what is left of the re-socialization?", mir puig (1989: 41) concludes that exhausted the rehabilitating idea to stop the commission of crimes, only remains to attribute to this a minimum sense, offering the inmate voluntary acceptance of the treatment, all the methods that it offers to allow its return to the society, and to avoid to a greater extent its de-socialization: “having verified the incapacity of re-socialization to offer a global response to the problem of criminality, it is necessary to facilitate, as far as it is lawful, josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 85 everything necessary and possible for the reincorporation of the offender into society, by means of a strictly limited version of the re-socialization: because it does not have to pretend to hide the afflictive and negative character of the punishment for the prisoner, avoiding the euphemism and recognizing that it is not the good of the prisoner, but the need for social protection that really justifies the penitentiary intervention. re-socialization can not claim to justify punishment as a necessary good for the offender. the only thing that can claim to justify resocialization is the help that the prisoner voluntarily admits in order to his subsequent social reintegration”. recently rivera beiras (2017: 41), based on the work of ferrajoli, starting from the premise of the “contradictory nature” and the “total institution” of the jail, likewise that education to be free from the bars, that is to say, from inside prison, it is a contradiction. i must share the cited criteria of the spanish author when he says, that the few or no rehabilitative results offered the prison, it is necessary to proceed to a “decarcation” through a “public policy of reduction of prison”, designing a program based on a series of master lines, among which it is important to “take seriously” the protection and absolute respect (radical guarantee) of the fundamental rights of prisoners, to fully prosecute the execution of custodial sentences (in respect of those criminals from which the decarceration). i must clarify that the theory of rivera beiras proposes the abolition of jail, no criminal. iv. final considerations even though our constitutional court has been maintaining for decades, insistently, that we are not in the presence of a fundamental right in the strict sense, because not all rights, located within the first section, the second chapter of the title i, have that condition (as for example, in atc 360/1990, of october 5, where it was stated that the fact that the normal content of the precepts located in the first section, the second chapter, of title i are rights and freedoms, does not mean that each and every one of its extremes constitutes this type of legal institutions), i can not but express, in the face of this jurisprudential line, my surprise and stupor for the lack of courage of the constitutional court in this matter, by the way, with the utmost respect inspired by our tribunal of constitutional guarantees. it considers that among articles 14 to 29 ce, there are also constitutional principles, general principles of law, organizational criteria, principles of order, institutional guarantees, procedural guarantees… which has been the argument put forward by other authors (which we have cited in the previous epigraphs of this chapter) and by the cc itself, to consider it a mere guiding and informative norm of penal and penitentiary policy. in any case, while it is true that in the first section are included, not only fundamental rights, but other guarantees and constitutional principles, it seems that in this case, due to the concurrence of the reasons set out below, its location expressed by article 25.2 of spanish constitution: a fundamental right of prisoners? the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 86 the fathers of the constitution in the chapter of fundamental rights is decisive for its consideration as a fundamental right. in my humble opinion, if the constituent had intended that the purpose of the reintegration and social reeducation be mere guiding principles of penal and penitentiary policy, they would have been placed in the third chapter that takes as its rubric "guiding principles of social and economic policy ", instead of including it in the second chapter, relative to “rights and freedoms”, it has been that, therefore, the constituent will. moreover, i argue that the jurisprudential line maintained is contrary to a systematic interpretation of article 25.2 sc, in relation to the principle of material equality, essence of the social state (article 9.2 sc24), to recognized human dignity, as a fundamental value of our ordering, in the frontispiece of the title i, in its article 10 (that impregnates the entire title as an indispensable presupposition of the rest of rights and duties), to the will of the constituent to grant the maximum level of protection that our norma normarum grants to the rights contemplated in articles 14 to 29, and ultimately, to the rule of law (which ensures the imposition of the law as an expression of the popular will, as proclaimed in the preamble) by welcoming the theory of relations of special subjection that, as our constitutionalist doctrine has shown, it violates fundamental rights of the prisoners and is contrary to the principle of legality. i must acknowledge that the conception of the purpose of reinsertion of custodial sentences by the court as a mandate to the penal and penitentiary legislator, and the possibility that they have other purposes, including remuneration, have devalued the legal status of prisoners, until turning them into a second category of citizens. the reason why the maximum interpreter of the constitution does not configure as a fundamental right article 25.2, lies in the assumption by the former of the theory of relations of special subjection or special supremacy, whose primary purpose was to ensure security and the good order of the prison, and not the rehabilitating purpose. i must add that it has not contributed to an adequate characterization of article 25.2 as a fundamental right of inmates, the logp with its vague and generic expressions, as security criteria, interest in treatment and good order of establishment (excerpt 51 logp), that far of the resocialization mandate of article 25.2 sc, they grant a discretion, if not arbitrariness25, to the penitentiary administration, which is incompatible with the scrupulous respect to the fundamental rights of the prisoners. in summary, i believe that the proclamation in our article 1 sc, on spain as a social and democratic state of law, and the constitutional mandate of article 25.2, make 24 the significance of "existential procurement", in the terminology of e. forsthoff, which falls on all public authorities, for the benefit of all citizens, including prisoners who have not lost that quality as a result of internment, obliges them to facilitate the participation of those in political, economic, social and cultural life. 25 constitution guarantees, among other principles, the interdiction of the arbitrariness of public powers in its article 9.3. josé pablo sancha díez the age of human rights journal, 11 (december 2018) pp. 61-90 issn: 2340-9592 doi: 10.17561/tahrj.n11.4 87 the principle of re-socialization an unavoidable requirement to achieve, through it, a minimum humanitarian and penitentiary law, material equality (essence of the social state, welfare state) of the rights of prisoners with respect to free men, with the only exception of the limitations arising from the triad set forth in article 25.2. i finish with a reflection made several decades ago, but which not for this reason has lost a whit about its consistency and credibility. muñoz conde (et al 1989: 159) recognizes: “that one can not be optimistic about the future of prison treatment. but this does not mean that the improvements and the humanization of the penitentiary system must be abandoned, not only for strictly humanitarian reasons, but because we live in a society oriented towards consequences, in which none of its institutions can be based on its new symbolic value, without contributing anything positive to society. and prisons are one of those institutions that nobody knows what they are for, but rather to increase the pain and despair of the most disadvantaged. the final destination must be the disappearance. but while this is not achieved, and it seems that there are still many years left for this to happen, something must be done. and that something can not be anything other than to avoid as much as possible a greater harm than the deprivation of liberty itself means, but above all to avoid a greater de-socialization (which does not mean re-socialization) of the delinquent, already in itself sometimes quite de-socialized. this is, then, the only meaning that penitentiary treatment can have today. procure the non desocialization of the offender, avoiding the de-socializing defects that are inherent in any deprivation of liberty”. references alarcón bravo, j. 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(2001). “el valor constitucional del mandato resocialización. revista española de derecho constitucional, año 21. nº 63. interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar1 maría del carmen barranco avilés2 khalid al ali3 patricia cuenca gómez4 rafael de asís roig5 pablo rodríguez del pozo6 abstract: based on the description of the situation of some social rights of persons with disability in qatar, this article is aimed to highlight the need to address the protection of human rights from interdependence and indivisibility. the analysis of qatar law reveals that social protection alone is not sufficient guarantee of dignity, as would not be a system based exclusively on freedom as not interference. although providing noteworthy resources for persons with disabilities along with a good level of social protection and health care, qatar does not base its system on autonomy and inclusion and this is a shortcoming to move towards a human rights-based approach. keywords: convention on the rights of persons with disabilities, social rights, interdependence and indivisibility, persons with disabilities in qatar. summary: 1. the crpd and human rights theory 2. the indivisibility and interdependence of human rights and the rights of persons with disabilities 3. qatar and the crpd 3.1. the right to health 3.2. the right to education 3.3. the right to work 3.4. the right to an adequate standard of living and social protection 1. the crpd and human rights theory the international consensus on the notion that political power is only justified as long as it serves human dignity is clearly enshrined in the universal declaration of human rights and the united nations charter. within this framework, human rights, which can be defined as tools aimed at safeguarding dignity (instruments conceived to prevent persons engaged in social living from being treated as a means to an end), are the ultimate standard when measuring the legitimacy of power. additionally, they must be deemed as universal. 1 this publication was made possible by the nprp award nprp-7-380-5-051 from the qatar national research fund (a member of the qatar foundation). the statements made herein are solely the responsibility of the authors (english version reviewed by stephany hunter). 2 universidad carlos iii de madrid, spain (mcarmen.barranco@uc3m.es). 3 qatar university (kalali@qu.edu.qa). 4 universidad carlos iii de madrid, spain (patricia.cuenca@uc3m.es). 5 universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). 6 weill cornell medical college in qatar (prd2002@qatar-med.cornell.edu). the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 49 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo when it is claimed that human rights are universal, the underlying assertion is that everyone is entitled to equal rights by virtue of being human. therefore universality is closely related to equality. however, it must be remembered that one of the cornerstone texts in the modern understanding of human rights is the declaration of the rights of man and of the citizen passed by france’s national constituent assembly in august 1789. indeed, this provision illustrates the idea upheld herein, i.e. that not only have systems of rights failed to provide equal protection to all human beings, but also they have often further stigmatized some individuals (grear 2013). on the one hand, the 1789 declaration was passed in a context where the definition of “men” excluded women; on the other, at that time citizens had to meet certain requirements that not even all men were able to fulfil, including nationality, race, age, economic conditions, or functional diversity. accordingly, citizens were defined as white male nationals of legal age who owned property (including money) and who were socially and physically independent. the construct that justifies compatibility between these exclusions and equality can be found in the so-called “traditional theories” (baxi 2002). in accordance with these approaches, rights are granted to those who are acknowledged as moral agents, i.e. those who are allegedly free to choose and therefore who can be held accountable for their choices. nevertheless, during the 18th and 19th centuries in europe and america, not all human beings, not even all men, were considered to be free and accountable individuals. the bottom line of this construct is that rights are claimed to be universal, yet they exclude persons both in terms of their entitlement and also as a result of the content of those rights: entitlement, because rights are only granted to whomever can be deemed to be the “abstract” (an abstraction rather than a real individual) bearer of rights within society; content because rights amount to specific guarantees vis-à-vis situations where the abstract rights-holder can be treated as an instrument, and they are of no use in other circumstances. these “traditional theory” approaches are reviewed in law through generalization and specification processes. the generalization process stems from the focus on the circumstances that can be faced by human beings: it adopts the perspective of “the situation” and then projects that perspective into a general fulfilment of rights. however, only those who can be considered current bearers of rights in the aspects deemed essential (rationality and autonomy) are actually entitled to those rights (the paramount example of this being the right to vote), thus leading to uniformity for those individuals, but a uniformity that actually excludes a large proportion of the population or that requires their assimilation (barranco, 2015a). furthermore, new rights that focus on different circumstances may be granted (economic, social, and cultural rights), but it is worth noting that these rights, under the generalization process, require the rights-holder to be rational and autonomous under particular definitions. therefore the circumstances taken into consideration are not natural, but social or economic. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 50 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar the specification process stems from a focus on specific circumstances faced by particular or “special” individuals. this focus is then given a group perspective. although it is true that as a result of the specification process entitlement is diversified, the particular grounds for greater specific rights have been twofold. firstly, they seem justified due to a negative assessment of the group-defining feature, which according to this approach must be “removed” or “remedied.” this perspective calls for a separation between what is normal and what is special. for example, the effect of this process on women’s rights entails, on the one hand, reconsidering their entitlement to general rights—insofar as women share certain features with men—but also justifying the acknowledgment of “special” rights in those aspects considered to be exclusively inherent to women and which are thus considered to be “not normal.” the result is that this kind of assessment, which is applied both to women and other groups, is ultimately stigmatizing (bunch 1990). secondly, the specification process can also detract from a positive assessment of the group-defining feature, and accordingly it is considered that such feature must be enhanced. this is the approach that is sometimes taken in relation to the cultural rights of minorities. both the generalization and specification processes (peces-barba 1995, 154199) have failed to integrate diversity within rights systems over the 20th century, since the consequence of generalization without specification has been standardization (construed as integration, yet not as inclusion), and the outcome of specification processes lacking in generalization has been segregation. during the 21st century there has been a change in how these processes have been viewed and addressed. this change had been announced by the convention on the rights of the child and, particularly, and it is definitely evidenced by the convention on the rights of persons with disabilities (barranco, 2015 b). the convention on the rights of persons with disabilities was adopted on december 13, 2006. the treaty, which was ratified by qatar on may 13, 2008, provides that “[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (article 1). most certainly the crpd provides a new paradigm for international human rights law, grounded on a full review of the classic theory. this re-examination disregards the notion of homogeneity, which worked as a precondition for universality, but the meaning of “special” or “vulnerable” versus what is normal is also reviewed, the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 51 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo thus leading to a human rights based approach in relation to vulnerable groups. in the case of the crpd, this approach takes the form of the social model7. the crpd moves away from the idea that homogeneity is a precondition for universality. as discussed previously, universalism and individualism (which have historically constituted the foundations of human rights philosophy) have provided grounds to justify the belief that rights, and the capacity to exercise them, should be granted solely to those who can engage in social living in an autonomous and rational manner. tackling disability as a human rights matter implies taking for granted that instrumentalizing persons with disabilities undermines human dignity. therefore, through the crpd, the international community has moved away from a system in which true rights are only those designed to protect white heterosexual bourgeois men who are socially and physically independent. the crpd introduces an approach that forces us to re-examine the meaning of what is deemed to be “special” and “vulnerable” vis-à-vis what is considered to be “normal”: this aligns with the social model of disability, reflected in its definition of a “person with disabilities.” ultimately, according to this model, disabilities are the result of an interaction. as opposed to other approaches, the social model deals with breaches of the rights of persons with disabilities as if they were human rights violations. in addition, regarding the very notion of disability, the social model no longer regards disability as a purely individual phenomenon; it focuses on how the environment might foster the emergence of disabilities. the foregoing entails a modification of the kind of public policies used to tackle diversity. public policies in favor of certain groups traditionally deemed as vulnerable have fallen into three main models, according to their underlying principles and the “intervening agent:” the conservative, the technocratic, and the social model. these three approaches have historically –and still do– dictate the way disability is handled, but also the way social protection is addressed. conservative policies, which regarding disability have been designated as the isolation and exclusion model (palacios 2008, 36-75). are characterized by the fact that they leave in the hands of society the treatment of persons who, just like the disabled, belong to groups that do not have the same chances to enforce their rights as those persons deemed to be “normal.” from this perspective, conservative policies entail the non-intervention of political power and disability (as poverty) is often considered to be due to past actions performed by individuals or their parents that are morally reprehensible. additionally, persons with disabilities are considered a burden on society, and thus it would be better for them not to exist. at many moments in history, 7 the purpose of these words is not to assess the social model, but to present those of its features that allow us to understand to what extent the social policies of disability in qatar adopt a human rights approach. for an in deep analysis of the challenges faced by qatar for the general implementation of the model, see asis et al. (2017) and rodríguez del pozo et al. (2016) the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 52 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar and still today in some places worldwide and regarding specific issues, this isolation and exclusion model was the prevailing approach to disability. there were attempts to tackle disability by eliminating or separating persons with disabilities: through sterilization, selective abortions, “euthanasia,” by hiding them, secluding them or even imprisoning them. as a result of this approach persons with disabilities have suffered serious violations of their rights. technocratic policies –in the context of disability tending to sit in the rehabilitation model (palacios 2008, 66-102)– assign a very prominent role to public authorities, regarding both the drafting and the implementation of the relevant public policies. this model is rooted in utilitarianism, in which public action should promote the good of society as a whole rather than the welfare of the individual and should protect that society against the greater threats rather than defend the rights of a single person. the main goal of these policies is not to protect the rights of persons with disabilities, but to enhance the overall well-being of the society that is subject to such policies. disabilities are turned into a “medical issue,” and the aim is rehabilitation. somehow it entails turning persons with disabilities into “normal people,” focusing on the individual condition. this is quite relevant in regarding social rights, because social protection from the technocratic point of view doesn’t mean recognition of economic, social and political rights, as we will test in the case of qatar. finally, the social model (palacios 2008, 103-203) seeks to enforce the rights of persons with disabilities. moreover, both the definition of public action and the implementation thereof are drafted with the involvement of those persons. as pointed out above, it is in the context of this model that any discrimination suffered by persons with disabilities is deemed to be a matter of human rights. also in the context of this model it is proposed that the concept of “normalcy” is to be defined by the powerful and influential, and that to a large extent the impact of an individual feature on the way a person functions has to do with their environment. in this regard it is worth noting the difference between the situation of a short-sighted person who lives in an environment where it is easy to access prescription lenses (enabling their full and effective involvement in society) and the situation experienced by an equally short-sighted person who has no access to this kind of aid. from this point of view, social protection of persons with disability should be articulated trough the recognition of economic, social and cultural rights. this model encompasses the definition of a person with disabilities provided by the crpd. hence, the rights-based approach is introduced in the treatment of vulnerability (as determined by the united nations secretary-general's reform programme of 1997) and, as a result, when intervening in favor of persons with disability the end is the rights, participation is the means, and empowerment is the outcome. in addition, it is worth noting that if public actions are founded on human rights they become mandatory. the rights-based approach can be seen in the content of the crpd, particularly in the principles set out in article 3, among which we must highlight here: “[r]espect for the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 53 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.” along these lines, one of the most difficult aspects regarding its implementation is equal recognition before the law as provided for in article 12. the impact of both this right and the right to accessibility, enshrined in article 9, highlights that the indivisibility and interdependence of human rights triggers, adding to other arguments8, a re-examination of the sense of the long-standing distinction between civil and political rights, on the one hand, and economic, social, and cultural rights on the other.9 2. the indivisibility and interdependence of human rights and the rights of persons with disabilities we must briefly reflect on the meaning of human rights before presenting the main point upheld in this section. the crpd puts at stake the long-standing distinction between civil and political rights, on the one hand, and economic, social, and cultural rights on the other. accordingly, it is possible to contend that “human rights” is a notion with two dimensions: ethical and legal. from an ethical point of view, rights are claims linked to the idea of dignity (making them ethical demands): tools conceived to prevent persons from using other persons as means. it is important for states to protect human rights, because only by doing so can they be considered legitimate. since they protect values with a particular significance, they must be included in the highest standards of the legal system. however, it is possible to ask what rights we have, because states have to protect these rights in order to achieve, maintain, or reinforce their legitimacy. the answer to this question depends on our approach to the notion of instrumentalization. nowadays, we consider that a person is being used as a tool when his or her civil and political, or economic, social, and cultural rights are denied. not everybody agrees with this and, in fact, social rights tend to have less efficacy in protection systems than civil and political rights. in the international system of protection however, the applicable rule on this matter is the interdependence and indivisibility of human rights (añón 2015, 44 ff). the vienna declaration and programme of action, adopted by the world conference on human rights in vienna on june 25, 1993, states the following: “5. [a]ll human rights are universal, indivisible and interdependent and interrelated. the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” 8 additionally to the opinion of the committee on economic, social and cultural rights in the general comment 3 (cescr 1990) and of the authors as sandra fredman (fredman 2008) 9 the scope of both these rights and their impact on the remaining rights can be seen in committee on the rights of persons with disabilities, gc no.1 2014 (crpd/c/11/4), as well as on crpd, gc no. 2 2014 (crpd/c/11/3). the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 54 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar before 1993, and particularly prior to 1997, social rights were mostly considered to be a development question, but on this latter date the secretary-general of the united nations published a document entitled “the human rights-based approach to development cooperation. towards a common understanding among un agencies” (1997) stating the principles of universality and inalienability, equality and nondiscrimination, participation and inclusion, accountability and the rule of law, as well as the two principles particularly pertinent at this point, i.e. indivisibility, on the one hand, and interdependence and interrelatedness, on the other. the common understanding document reads as follows: “indivisibility: human rights are indivisible. whether of a civil, cultural, economic, political or social nature, they are all inherent to the dignity of every human person. consequently, they all have equal status as rights, and cannot be ranked, a priori, in a hierarchical order. inter-dependence and inter-relatedness. the realization of one right often depends, wholly or in part, upon the realization of others. for instance, realization of the right to health may depend, in certain circumstances, on realization of the right to education or of the right to information.” (un develompent group 2003). the significance of these principles for the effectiveness of the rights granted within the framework of the international human rights protection system is clearly shown in the crpd, in particular in the way the right to equal recognition before the law and the right to accessibility impact the content of the remaining rights that have been acknowledged, especially the content of the rights traditionally considered as economic, social and cultural. in this connection, it is worth recalling that an extraordinarily important provision in order to understand the model underlying the crpd is article 12, pursuant to which: “1. states parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. states parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” in accordance with the traditional classification of rights, the right acknowledged in article 12 can be considered to be a civil right. as enshrined in the crpd it is closely related to other rights such as access to justice (article 13), liberty and security (article 14) or the right to live independently and be included in the community (article 19), but it is also embedded in every situation where persons with disabilities have to make decisions, regardless of whether these decisions affect the the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 55 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo exercise of civil, political, or economic, social, or cultural rights. along these lines, the committee on the rights of persons with disabilities points out the following: “legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. it acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work. the denial of legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty.” (committee on the rights of persons with disabilities, gc no 1 2014, para. 8). indeed, as shown below in the analysis of the rights to health, employment, education, and social living in qatar, a large share of the difficulties faced by persons with disabilities in order to attain equality regarding these rights usually involves the fact that they are denied the ability to decide in these domains or that the barriers to making free decisions that they encounter are disregarded. accessibility had never been acknowledged as an individual right in the universal protection system until it was enshrined in paragraph 1 of article 9 of the crpd: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” as can be inferred from the wording of this provision, the guarantee of accessibility comprises the exercise of all the remaining rights, since it ensures access to goods, spaces, services, and processes tied to its effectiveness. the second general comment issued by the committee on the rights of persons with disabilities refers to accessibility, and in connection with the topic of this paper it highlights the importance of accessibility for the exercise of civil rights, but also for the exercise of political, economic, social, and cultural rights. thus, once again, crpd provisions go beyond the long-standing distinction between generations of rights. accessibility is achieved through one of two immutable paths: one that relates to groups and the other that is based on ex ante or is based on the perspective of individuals. for groups, accessibility requires universal design, meaning that any goods, spaces, services, or processes must be usable by as many diverse persons as possible with no need to perform any special accommodation or adjustment. the obligation to the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 56 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar ensure accessibility in this group-oriented dimension prevails, although from the beginning there was no design for all, and calls for setting targets and deadlines to remove barriers: “states parties should establish definite time frames and allocate adequate resources for the removal of existing barriers. furthermore, states parties should clearly prescribe the duties of the different authorities (including regional and local authorities) and entities (including private entities) that should be carried out in order to ensure accessibility. states parties should also prescribe effective monitoring mechanisms to ensure accessibility and monitor sanctions against anyone who fails to implement accessibility standards.” (committee on the rights of persons with disabilities, gc no 2, 2014, para. 24). as for individuals, the approach to accessibility entails reasonable accommodation: “in the case of individuals who have rare impairments that were not taken into account when the accessibility standards were developed or who do not use the modes, methods or means offered to achieve accessibility (not reading braille, for example), even the application of accessibility standards may not be sufficient to ensure them access. in such cases, reasonable accommodation may apply.” (committee on the rights of persons with disabilities gc 2 2014, para. 25). in both cases accessibility, which can be considered as a newly created right, is hardly classifiable into classic categories (civil, political, economic, social, or cultural) and it impacts on the rights that fall into all of these categories. as discussed below, these reflections can be incorporated into the following analysis of to what extent the rights to health, employment, education, and participation are acknowledged for persons with disabilities in qatar. 3. qatar and the crpd qatar is an independent sovereign arab state on the western coast of the arabian gulf, covering an area of approximately 11,521 square kilometers, and with a population of roughly 2,559,267 of which 731,622 are women (april 2016).10 only about 12 percent of the total population are qatari (snoj 2013).11 10 http://www.mdps.gov.qa/en/pages/default.aspx (last accessed may 30, 2016). 11 according to the qatar’s fourth national human development report (ministry of development planning and statistics 2015) “qatar tops the list of countries with the highest share of foreign population relative to the total population, where the non-qatari population accounts for around 87% of the total population.” the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 57 http://www.mdps.gov.qa/en/pages/default.aspx m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo the constitution currently in force was adopted on june 8, 2004, and it recognizes shari’a law as the main source of legislation. the political system is a monarchy and the head of state is the emir, in whom the executive power is vested and who organizes the council of ministers. legislative authority is vested in the alshoura council, an advisory body, consisting of forty-five members, out of whom thirty must be elected by direct, general, secret ballot. the fifteen remaining members are appointed by the emir. qatar is involved in a modernization strategy entitled qatar national vision 2030, aimed “towards qatar becoming an advanced society capable of sustainable development with the goal of providing a high standard of living for all citizens by the year 2030.” within this framework, in 2008 qatar ratified the international convention on the rights of persons with disabilities (crpd). there is a specific legal provision in force addressed to persons with disabilities in qatar: law no. 2 of 2004. in this piece of legislation, the notion of a “person with disabilities” is defined from the viewpoint of the medical model, with the description: “any person with a permanent total or partial disability in any of the senses or in his or her physical ability or in his or her psychological or mental ability to such an extent that his or her opportunity to learn or to undergo rehabilitation or to earn a living” (article 1 of law no. 2 of 2004). this perspective is also present in other definitions, such as “special education,” “rehabilitation,” “special education institutes.” as we can see, disability is understood to be a medical situation related to special features of the persons, and the aim of the public intervention is mostly to rehabilitate persons with disabilities. article 2 of law no. 2 of 2004 refers to the rights of persons with disabilities in the following terms: “[s]pecial needs persons shall enjoy the following rights in addition to any applicable rights under any other relevant legislation: 1) education and rehabilitation relevant to their developmental potential; 2) medical, psychological, cultural and social care; 3) provision of tools, devices, means of transport and equipment that assist them in learning, rehabilitation and enjoying freedom of movement; 4) provision of relief, aid and other ancillary services; 5) provision of work that is appropriate to their abilities and rehabilitate them in both the public and private sectors; 6) participation in sports and entertainments according to their special abilities; 7) provision of accommodation for safe and secure movement; 8) securing of special facilities in public places; and 9) securing of their participation in decisions related to their affairs.” in this context, we will focus on how the rights to health, education, employment and participation are guaranteed in qatari law. this analysis is not an in deep presentation of the referred rights in qatar, but just an assessment of the degree of compliance of qatar law with the crpd in this fields in order to briefly present its main achievements and shortcomings. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 58 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar 3.1. the right to health within the framework of the medical model, public policies on disability mainly relate to health issues alongside social assistance. nevertheless, persons with disabilities (particularly with intellectual or psychosocial disabilities) have often been deprived of the opportunity to make decisions about their own health. they have also been deprived of the opportunity to decide where and with whom they live, mostly because disability is categorized as a health problem. the crpd considers that the behaviors through which the dignity of persons with disabilities are most frequently disregarded occur within the health domain. qatari law mostly falls within the scope of the medical model, so some questions that would not be related to the health field were the social model employed, in qatar are solved through the invocation of health laws and considerations of environment, or depend upon a medical decision. for example, habilitation and rehabilitation are largely considered medical issues; also hamad medical corporation, a medical institution, is the dedicated authority for special education. this focus on health in the qatar context justifies the longer length of this section. furthermore, this over-emphasis on the health field regarding disability policies is a challenge for research, because sometimes the guarantee exists, but it is hard to identify because disability is viewed as something special or not normal. from the legal perspective disability is understood to be a sectorial matter whereas a human rightsbased approach requires disability to be treated as an issue that cuts across society, thus mainstreaming disability. articles 25, 26, 14, 17, 15, 22, and 23 are specifically relevant in order to understand the conventional design of the right to health. however, it is worth remembering that the provisions on the health of persons with disabilities have to be understood within the framework of the convention (rodríguez del pozo et al. 2016). in other words, they have to be construed from the point of view of the social model and the human rights approach, as well as being based on the principles of dignity, equality, and non-discrimination, accessibility, legal capacity, participation, inclusion, and diversity (stein et al. 2009; asís et al. 2017). a careful presentation of the requirements of these articles is required to understand the scope of qatar's obligations under the convention and why the guarantee of the healthcare for persons with disability doesn’t imply the protection of their right to health in the qatar case. article 25 of the crpd refers to health. the starting point for the recognition of the right to health is non-discrimination. thus article 25 sets forth the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. states acquire specific obligations related to the establishment of guarantees for persons with disabilities to access health services on an equal footing with other persons, at a lower cost, and the crpd expressly mentions sexual and reproductive the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 59 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo health.12 also, the crpd is concerned about the availability of special health services required for the protection of the right to health of persons with disabilities pursuant to article 25.b). as an additional guarantee of equality, article 25.c) points out that health services must be provided as close as possible to the communities, even in rural areas. this concern to protect the link between persons with disabilities and their own community is also present in the provision governing the right to living independently and being included in the community (article 19.b)): “persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community” and it is consistent with the principle of “full and effective participation and inclusion in society” expressed in article 3.c) of the crpd. finally, it is worth noting that the provision expressly mentions two specific domains where discrimination on the grounds of disability is forbidden: access to life or health insurances (“shall be provided in a fair and reasonable manner”) and health care, health services, food, or fluids. article 26 of the crpd introduces the right to habilitation and rehabilitation. it would be a mistake to consider the right enshrined in article 26 to be exclusively related to the health context, but health is one of the areas expressly mentioned therein. the aim of the habilitation and rehabilitation programs is independence, mental, social and vocational ability, and full inclusion and participation: “to enable persons with disabilities to attain and maintain maximum independence, full physical, mental social and vocational ability, and full inclusion and participation in all aspects of life.” this objective of “participation and inclusion” is reiterated in article 26.1.b), and the aim is to ensure such a right by moving programs and services close to communities “including rural areas.” as we have pointed out before, habilitation and rehabilitation programs must be comprehensive, and thus should be based on the multidisciplinary assessment of individual needs and strengths. states parties also have an obligation to promote the use of assistive devices and technologies by persons with disabilities (article 26.3). as opposed to the structure under the medical model, under the crpd, habilitation and rehabilitation programs and services are not compulsory. the article provides an obligation to promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services (article 26.2). this commitment is not expressly made with regard to the right 12 in line with article 23, 1.b) of the crpd, introducing “the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided.” the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 60 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar to health, but can be inferred from the general obligation “to promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present convention so as to better provide the assistance and services guaranteed by those rights,” as laid down in article 4.1.i) of the crpd. article 14 of the crpd is relevant in the health domain, since domestic legislation has usually introduced involuntary placement (and involuntary treatment) for persons with psychosocial disabilities. the rule is clear in this regard: “disability shall in no case justify a deprivation of liberty.” some of the consequences of this provision also have to do with health: when deprivation of liberty is justified through compulsory detention or other treatment of persons with disabilities not within the framework of a criminal investigation or process. along similar lines are the rights laid down by article 14 of the crpd, relating to the right of persons with disabilities to decide where and with whom they live, pursuant to article 19 which acknowledges “the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.” when a person with disability is unwillingly placed in a hospital to be treated, his or her right to liberty under article 14 is at stake, as well as his or her right to living independently and being included in the community and, of course, his or her right to integrity. integrity and the respect for privacy are always exposed in the medical contexts, but this is particularly true regarding persons with disabilities. that is why articles 17, 15, and 22 are so significant. article 17, under the heading “protecting the integrity of the person,” sets out that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.” this provision triggers the analysis of informed consent, which must be supplemented by taking into consideration issues such as accessibility and legal capacity. informed consent requires patients to be able to access information in a physical way, but also be given the possibility of understanding the content. the paradigm shift on legal capacity has a deep impact on this subject, because the relevant decision is that of the person with a disability, regardless of the kind of disability. in the field of biomedical research, this question has been examined. the integrity of persons with disabilities (and of all persons) prevents their involvement in research without guaranteeing that their consent is first freely provided.13 therefore, 13 it is important to take into account that biomedical research should consider human diversity, otherwise studies would be biased and some persons would be excluded from the benefits of medical advances. however, when biomedical research involves human beings it should be subject to rigid and clear criteria aimed at guaranteeing any human rights at stake. see, as an example, the international ethical guidelines the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 61 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo article 17 must be supplemented by the rule enshrined in article 15.1, under the heading “freedom from torture or cruel, inhuman or degrading treatment or punishment,” which is worded as follows: “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. in particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.” article 23 of the crpd provides the right to respect for home and the family. sub-paragraph c) of paragraph 1 requires states to ensure that “persons with disabilities, including children, retain their fertility on an equal basis with others.” nevertheless, it is usual in many countries to sterilize persons with disabilities, especially women. since sterilization is a medical procedure, this right is also relevant to the health domain. article 22.2, on the respect for privacy, states that “states parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others. privacy of health information of persons with disabilities is specially mentioned.” the qatari constitution establishes that “[t]he state shall foster public health, provide the means of prevention of disease and epidemics, and promote their cure in accordance with the law” (article 26). law 7/2013 on the social health insurance system defines the health insurance system as mandatory “to ensure the provision of basic health services to all qatari citizens, gulf cooperation council (gcc) citizens, residents of the state and visitors” (article 2). mandatory health insurance services include preventive, curative, and rehabilitative services and medical tests (article 8), yet additional services may be provided by employers and sponsors (article 10). the national health insurance company is responsible for the application and management of the health insurance system (article 20). government pays health insurance premiums for every qatari citizen, employers pay for non-qatari employees and members of their families, sponsors pay for sponsored individuals and visitors shall be held accountable for their own medical bills during their stay in the country. the main public health care provider is hamad medical corporation, created through decree no. 35 of 1979 concerning hamad medical corporation (hmc) and amended by decree no. 38 of 1987. therefore, its policies shall be considered for the suitable assessment of the right to health of persons with disabilities in qatar. law 7/1995 provides for the arrangement of medical treatment and health services whilst establishing health service fees. law 2/2004 in respect of persons with special needs lays down the right granted to “special needs persons” to “medical, psychological, cultural and social care” (article 2) and the higher council for family affairs14 shall work to ensure the “provision of medical preventive, treatment, health and psychosocial services, and provision of the relevant medical reports to the special needs persons and to persons taking care of them provided that such special needs for biomedical research involving human subjects (council for international organizations of medical sciences 2002). 14 nowadays the ministry of labor and social affairs. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 62 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar persons and those taking care of them are not covered by any other health insurance system” (article 3). pursuant to the foregoing it can be concluded that qatar has provisions in place aimed at ensuring access to health without discrimination for persons with disabilities. taking into account the fact that the qatari system is still based on the medical model, persons with disabilities’ daily life is largely conditioned by the way disability is dealt with in the health field. in fact, the decision about who must be considered a disabled person is a medical matter (not only with regards to the exemption from paying treatment fees). in the health domain, the physician is responsible for classifying an individual impairment as a disability, subsequently establishing if it is temporary or permanent. with the intervention of a social worker, a form on the medical situation of the patient is filled out, including detailed information about the disability. this medical report is verified and signed by a consultant in that particular field of disability and approved by the medical records department. with a separate social worker’s report attached thereto, this document is sent to the corporate social services, where it is firstly verified and then reviewed by a committee made up of three senior representatives (one from the finance department, one from the legal department, and one representative from corporate social services). this committee ultimately decides whether persons should be exempt from medical fees. therefore, in qatar it is possible for persons with disabilities to have free access to health services. in the initial report submitted to the committee on the rights of persons with disabilities (9-7-2014) qatar affirms that health services make no distinction between persons with disabilities and others (crdp/c/qat/1, para. 187). also, the rehabilitation programs of hamad medical corporation are listed, and the report mentions “an assessment program for students with disabilities.”15 health services and programs aimed at ensuring an early identification of disability are also provided. the existing ties in qatari law between disability and “health problems” is evidenced by the fact that the supreme council for health seems to have assumed the role of awareness-raising (article 8 of the crpd). furthermore, the medical model is reflected in the report submitted by qatar, in which disability seems to remain closely tied to health, as it addresses habilitation and rehabilitation mainly in terms of their relationship to health and employment. in terms of compulsory treatment and detention, qatar’s report does not answer the question of compulsory institutionalization,16 although the committee “is concerned 15 it is worth examining the relationship between this program and the educational system. roua, a center in the supreme education council that assesses children and supports educational centers is also worth mentioning. 16 law 23/2004 regarding promulgating the criminal procedure code, sets out compulsory detention and institutionalization for persons with disabilities who are supposed to be the authors of criminal acts. even the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 63 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo about the involuntary detention of persons in specialized institutions on the basis of their impairment as well as the deprivation of liberty based on disability including intellectual and/or psychosocial disabilities.” (committee on the rights of persons with disabilities 2015 , par. 27).17 law 16/2016 on mental health, defines the rights of patients with mental illness and gives detailed conditions for the compulsory admission of patients with “psychiatric diseases”, when a) the deterioration of the health and the psychological condition of a person with a psychiatric disease is probable and imminent or, b) the symptoms of the psychiatric disease represent a serious and imminent danger to the safety and health of the patient and other people. otherwise, if the guardian gives his or her consent, admission is considered voluntary for the person with psycho-social disability. these measures have a protective aim, but they are not in line with the social model that is based on the principle of “respect for inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons” as well as on the principle of “full and effective participation and inclusion in society.” persons with intellectual and psychosocial disabilities are included in the new model, so qatar will have to adopt measures aimed at assisting persons with disabilities in making the decision on where and with whom to live. in order for the model to be effective, the accessibility and availability of in-home, residential, and community support18 for persons with intellectual and psychosocial disabilities is required.19 in its report, qatar includes an explanation of abortion regulation when referring to the implementation of article 17. however, it does not explain if there is any rule, policy, or practice aimed at ensuring the informed consent of persons with disabilities in the medical context. in this connection, the policy on “informed consent” cl 7226 (september 2014) issued by hamad medical corporation must be taken in consideration. in accordance with this policy, minor or “incompetent” patients are represented by a legal guardian.20 patients have the right to be informed by their legal in the case of no evidence, persons with “mental disability or serious mental illness” are deprived of their liberty until their release on the basis of a medical report. 17 the committee is also concerned about the abovementioned rules providing the following: “that persons with intellectual and/or psychosocial disabilities accused of an offence are declared unfit to stand trial and not given due process. it is also concerned that victims of crimes who are persons with intellectual and/or psychosocial disabilities may be temporarily placed in institutions while the case is being resolved.” both aspects are related to access to justice. 18 according to article 19 of the crpd, they are related to the right to live independently and be included in the community. 19 provisions included in the procedural criminal code related to the placement of persons “suffering from mental disability or serious mental illness” in specialized therapeutic facilities are here left aside. law 23/2004 regarding promulgating the criminal procedure code, sets out compulsory detention and institutionalization for persons with disabilities who are supposed to be the authors of criminal acts. even in the case of no evidence, persons with “mental disability or serious mental illness” are deprived of liberty until their release on the basis of a medical report. the rights stated in the new mental health law are also applicable. 20 qatari policy on “patient and family bill of rights and responsibilities,” cl 7225, provides for different definitions of both legal representative (authorized to act in behalf of a patient under the age of the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 64 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar representative or legal guardian, who may be selected in order subsequently to be present during the submission of medical information (policy “patient and family bill of rights and responsibilities” cl 7224). this possibility could be construed as a guarantee if it were re-phrased in order to focus on assistance instead of substitution. the policy on informed consent mentions a procedure in case the patient needs an interpreter. this point should be expanded to extend this guarantee to assist persons with sensorial, intellectual, or psychosocial disabilities. currently this aspect is governed by the policy on “the provision of communication service to patient, families and visitors with special needs,” op 4048 (hamad medical corporation).21 at this point we must examine the “policy on the care of vulnerable patient population” cl 7221 of hamad medical corporation, where patients with emotional or mental illnesses are considered to be the vulnerable patient population. the relevant policy establishes that “[the] health care provider shall ensure that vulnerable patients are admitted in the right health care facilities, treated and cared for by appropriately trained staff.” it could be argued that persons with intellectual disabilities should also be expressly included in this policy, and on top of the current protective measures some assistance in any decision-making processes could be provided. on the other hand, policy cl 7217 issued by the hamad medical corporation on the “abuse and neglect of children and adults” defines as the vulnerable patient population “a dependent group of patients who has special health care needs and requires protection. the vulnerable patient population at hmc includes, but is not limited to, children, disabled individuals, the frail, elderly, terminally ill, women in labor, victims of abuse and neglect.” hence, persons with disabilities are included in this policy, which provides special rules for the detection of abuse and for the treatment of victims. it also contains certain provisions regarding evidence, laying down both rules for victim protection, preventing victimization, and a chain of custody. under these provisions the victim shall be allocated to the appropriate emergency department according to his or her sex and age, the relevant social worker shall be notified, and the social worker shall subsequently notify the police. hospital authorities shall draft a report, assist health care personnel with the legal requirements or provide assistance regarding any “reporting, documentation, and securing of evidentiary material if abuse, neglect or misappropriation of property is identified” and they must also “protect the persons reporting concerns of abuse from any retaliation actions.” a report of the attending physician may be requested as well. the abovementioned policy lists indicators applicable in case there is suspicion of abuse of a vulnerable individual. handicapped or mentally disabled persons are also considered vulnerable research subjects by the “policies, regulations and guidelines for research involving human subjects” drafted by hamad medical corporation. a guarantee in this domain is that “if an irb (institutional review board) regularly reviews research that involves a 18 or when considered “incompetent”) and legal guardian (nominated for the patient when over the age of 18). 21 last revision, may 2015. previous revision, may 2012. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 65 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo vulnerable category of subjects, such as children, prisoners, pregnant women, or handicapped or mentally disabled persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these subjects” (“basic policy for protection of human research subjects”). the criteria for approval by the institutional review board for research regarding persons with disabilities are the following: equity; additional safeguards if subjects vulnerable to coercion are included; and informed consent “appropriately documented from each prospective subject or the subject’s legally authorized representative.” the first part of the latter criterion can be construed as including accessibility for persons with disabilities, although the second part should be improved, departing from the idea of assistance in decision-making instead of grounding the provision on substitution. compulsory sterilization is a widespread practice affecting women with disabilities worldwide. as a result a recommendation has been published by the international federation of gynecology and obstetrics (figo 2011): “female contraceptive sterilization.” according to this document, “no woman may be sterilized without her own previously given informed consent, with no coercion, pressure, or undue inducement by healthcare providers or institutions” (rec. 1) and “all information must be provided in language, both spoken and written, that the women understand, and in an accessible format such as sign language, braille, and plain non-technical language appropriate to the individual woman’s needs” (background 12). this could be used as a reference for all legislators concerning sterilization regulation. the legal capacity of a live organ donor is required by law 21/1997, on the regulation of transplantation of human organs. the removing of an organ from the corpse of a deceased person requires the consent of the near-relatives up to the second degree with legal capacity, and “the deceased person” should not have “expressed before his death any objection to the removal of any of his body organs by virtue of a written objection or the testimony of two witnesses who have full legal capacity” (article 7). once again, these rules need to be reconsidered in light of the new approach to legal capacity, and assistance rather than substitution as discussed in the crpd. on the other hand, abortion is permitted in qatari legislation in the case of certain and serious harm to the mother’s health and “if there is evidence that the fetus would be born suffering from serious and incurable physical malformations or mental deficiency, and both parents must consent to the abortion” (law no. 2 of 1983 with respect to the practice of the profession of medicine and dental medicine and surgery, 2/1983, article 17). this second clause is contrary to article 10 of the crpd, according to which “states parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.”22 the approach to disability in qatar adopts the perspective of the medical model, so disability is understood to be a medical problem. consequently, health is a field with 22 qatari law also includes certain provisions regarding policies on privacy in the health field. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 66 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar a great impact on the life of persons with disabilities in qatar. it is definitely positive that healthcare is free for persons with disabilities, but the main challenge faced by qatar in order to implement the crpd is to introduce the social model and a human rights-based approach to disability, and this is a condition to transform healthcare into a rights to health. in spite of the core role of health in the treatment of disability, it does not seem to be common practice to decide what actually amounts to a “person with disabilities.” in some way that would be an advantage if acknowledging a person as a “person with disabilities” does not depend on an administrative decision based on medical factors. the problem is, however, that as a result of the lack of coordination between the different bodies managing the rights of persons with disabilities, they are assessed almost for every service. a better coordination between administrative bodies in relation to persons with disabilities should improve the effectiveness of their rights. additionally, measures to detect and avoid compulsory abortion and compulsory sterilization should be put in place. qatar should also reconsider its abortion regulation, seeking an enhanced protection of the right to life of persons with disabilities. nevertheless, qatar should implement measures to ensure that persons with intellectual disabilities are able to make their own decisions about their health care. a procedure similar to the one applicable when there is need for an interpreter could be applied, thus shifting from the current representation model to an “assistance in decision-making model.” the “policy on the care of vulnerable patient population” cl 7221 provides guarantees to patients with intellectual disabilities, as well as measures regarding assistance in decision-making. additionally, it is possible to quote policy cl 7217 of the hamad medical corporation on “abuse and neglect of children and adults” as an example of good practice on abuse detection and prosecution. indeed, there are provisions pursuant to which persons with disabilities are deemed to be vulnerable research subjects. such provisions also guarantee a high degree of equity, yet once again the representation or substitution-oriented model must be replaced by an “assistance in decision-making model.” as we can see, the positive dimension of the right to health of persons with disabilities does not seem to be a problem in qatar, the concern (which becomes clear in the case of compulsory admission) is to take into consideration the will of persons with disabilities. in relation to this question, the idea of the indivisibility and interdependence of the rights becomes clear. the main shortcoming in the implementation of the provisions of the crpd on the right to health in qatar is the lack of development of the right to equal recognition before the law, thereby securing equal guarantees for consent to health care, not just simply access to health services, for persons with disabilities. 3.2. the right to education a large number of persons with disabilities are out of the educational system. sometimes they are at home and other social facilities (often managed by private the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 67 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo institutions, even ngos) different from educational institutions, providing educational services. the problem is that this kind of training is lacking a curriculum. therefore, once persons with disabilities are out of the mainstream system, it is impossible to include them afterwards. also, the training is often inadequate to facilitate insertion into the labor market and inclusion in the community. when the education of persons with disabilities is planned from the medical model perspective, the preferred option is usually to set up special schools designed for persons with disabilities. additionally, special schools are not distributed fairly, and a lot of persons with disabilities have to travel every day or to leave home to go to school. as discussed below, the system is thereby in breach of the main principle enshrined in the convention: inclusive education. there are three models regarding the relationship between persons with disabilities and school: segregation, integration, and inclusion. in most countries inclusive education is understood as integration. children with disabilities are placed in ordinary school, but schools are not accessible and children with disabilities are the ones obliged to adapt to school, instead of adapting the school to needs of all boys and girls. as a result, even with acceptable levels of “integration” of children with disabilities in school, most of them only reach primary school, very few finish secondary school (even if it is compulsory) and only very exceptionally do persons with disabilities obtain college education. there are also significant differences related to the kind of disability involved: children with intellectual disabilities face the most barriers. professional training programs for persons with disabilities (if applicable) as well as standard training programs, are often biased. therefore, persons with disabilities are oriented towards a few professions, yet those are usually not the best paid. nowadays qatar seems to be experiencing a paradigm shift, as we can read at the qatari government’s official website regarding “special needs education.” the ministry of education and higher education (2016) “is committing to a new teaching philosophy to help children with special needs. all students deserve the right to participate in all educational experiences. the ministry of education and higher education believes that whenever possible, special needs students should be taught in a normal classroom setting.” despite the language, which is still anchored in the “special needs point of view,” the establishment of roua, a center that assesses children and supports other educational centers, could be a good starting point. however, this step ahead seems to be moving towards integration and not towards an inclusive paradigm. inclusive education is key for persons with disabilities, but it is also essential to build an inclusive society. it requires accessible learning environments from a threefold perspective: in terms of the physical environment, in terms of attitude, and regarding contents and methodologies, as provided by the universal design for learning approach. these fields should also be considered when thinking of disability as the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 68 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar educational content. once again, the general perspective in qatari regulation is rooted in specialty, although change is taking place in certain contexts, for example regarding the qatar assistive technology center (mada) objectives. article 24 of the crpd refers to the right to an education. education should be inclusive and it should target the full development of persons with disabilities as well as their effective participation in a free society (24.1). education is inclusive when persons with disabilities are not excluded from the general education system and children with disabilities are not excluded from compulsory primary or secondary education on the basis of disability. it requires reasonable accommodation, i.e. support within the general education system. article 24.3 of the convention relates to the duty of states parties to take measures in order to facilitate the accessibility of educational content (using braille, alternative script, or sign language, among others tools). states parties should also take appropriate measures to employ qualified teachers, including teachers with disabilities, and to train professionals and staff at all levels of education (24.5) and “shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. to this end, states parties shall ensure that reasonable accommodation is provided to persons with disabilities.” as a constitutional right (articles 25 and 49), education is free and compulsory from the beginning of the primary stage until the end of the secondary stage or until the child reaches the age of 18, whichever of the two comes first (compulsory education act). article 2.1 of law 2/2004 provides for the right to education and rehabilitation of persons with special needs concerning their development potential. also, in articles 3.4 and 4 this right is implemented, since it lays down the obligation incumbent upon the supreme council for family affairs to provide “appropriate programs for the education and rehabilitation of special needs persons in addition to the special educational programs and the preparation of the qualified technical cadres to support special needs persons.” special education institutes “shall award a certificate to each special needs person who completes a rehabilitation program,” and it must provide an id card to any special needs person not in need of rehabilitation services upon request by him or her or his or her family. the council shall determine the particulars to be included in each rehabilitation certificate and on the relevant id card.” this approach to “special education” is not that of the crpd, and, despite the work in the special education department at hamad medical corporation with children from 3 to 6, there are contradictions in qatari law. article 8 of law 25/2001—mandatory education—sets out the following: “any child who develops an illness or disability that prevents him or her from attending public or private schools is excused from mandatory education for the period of such illness or disability in accordance with a decision from the minister based on a the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 69 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo certificate of a competent medical authority at the higher council of health23. this exemption also applies to any child suspended from school due to temporary circumstances. exemption from mandatory school attendance shall cease when such illness, disability or temporary circumstance no longer affects the child.” first, the said provision is following the medical model, and thus disability is linked to health. also, it should not be considered appropriate for a child with a disability or illness to be temporarily exempted from compulsory education; the system should be adjusted to the child’s situation instead. the government should set up accessible schools with adequate support in order to guarantee the right to education on an equal footing, instead of making an exception of children with disabilities. in any case, the government’s aim should be the inclusion of persons with disabilities in mainstream education. however, according to data submitted by qatar to the committee on the rights of persons with disabilities, it seems that mainstream education is the exceptional route for persons with disabilities, and that special education is the rule. in regular schools, there are 1,487 students with disabilities, versus 5,886 students enrolled in schools for the disabled. it seems that some measures have been implemented (see all comments on article 24 in the report). also, it is self-evident that there is a ceiling after primary school (in 2010/2011, 82 students were in kindergarten; 841 in primary; 324 in preparatory, 240 in secondary). also, access to regular school is easier for students with physical or sensorial disabilities. in independent and private schools teaching in arabic, the figures are the following: dual disability (deaf-blind) 31; speech and language disorders 546; autism spectrum disorders 66; visual impairment 213; physical and motor disability 217; intellectual disability 308; hearing impairment 17; multiple disability (physical and intellectual) 89 (committee on the rights of persons with disabilities 2010, para. 168). policies establish the commitment of the government to inclusion. in the guide on additional education special needs we can find the following provision: “the state of qatar is committed to providing a comprehensive education service, one which meets the needs of all students and provides them with the highest quality of learning experiences, while, at the same time, actively promoting and supporting traditional qatari and islamic beliefs, values and traditions. the driving force behind this commitment is the desire to adequately prepare all students for the challenges and opportunities associated with adult life: the roles and responsibilities of good citizenship, lifelong learning and the world of work.” (supreme education council 2009, 9). however, in its concluding observations on qatar, the committee on the rights of persons with disabilities “is concerned that the state party has not taken sufficient steps to provide reasonable accommodation to all students with disabilities in mainstream school as well as the absence of a strategy for quality inclusive education. it is also concerned that only students with certain kinds of impairments attend mainstream education while others are enrolled at separate and segregated facilities.” 23 nowadays ministry of public health. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 70 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar (committee on the rights of persons with disabilities 2015, para. 43). the report issued by the national human rights committee (nhrc 2014, p. 48) mentions that the supreme education council had assumed the responsibility of integrating “special needs children in independent schools,” but the nhrc reports that, instead of having been informed of programs and budget “there is no accurate information regarding the progress in said programs.” certainly, special education seems to be lacking a clear training plan, as well as ways to allow for children in special school to return or to be included in the regular system. nowadays, qatar is facing a paradigm shift towards a more inclusive model. however, children with disabilities can still stay outside of the educational system and special education still seems to be the chosen way for persons with intellectual disabilities. a more effective model shift based on inclusive education is needed; to achieve this goal, qatar already has professionals trained in the more recent advances in educational psychology, such as universal design for learning. it is also important to clarify the educational curriculum from the point of view of diversity, ensuring continuity for persons coming from a special system and providing persons with disabilities tools for vocational training, to achieve the highest levels of education if it is their choice. 3.3. the right to work in broad terms, statistics show a lower employment rate for persons with disabilities. also, persons with disabilities have often been considered not to possess the appropriate skills or abilities to work. in order to balance this situation, in the context of the medical model, in most countries rehabilitative measures have been aimed at “repairing” persons with disabilities, who were considered “defective.” therefore the goal is to recover all this workforce, turning persons with disabilities into equally useful persons. from this point of view, access to some benefits could be subject to rehabilitation. however, the social model implies claiming the inherent value of persons as a part of human diversity. also, it considers disability as the interaction between individual impairments and social barriers. from this point of view, problems in finding work experienced by persons with disabilities have to do with social barriers related to physical, communicational, or attitudinal aspects. the bottom line is that the labor environment must be adapted to persons with disabilities and not the opposite. labor, education, and social services are key for access to independent living. at the same time, accessibility is a condition for the exercise of these rights in this domain. in the qatari system, the prevailing approach revolves around specialty, this is a problem from the viewpoint of the crpd, the aim of which is inclusion. there is also a technical problem regarding the attainment of actual inclusion, since it is difficult to the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 71 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo know how the specific provisions governing persons with disabilities could be binding in general domains. general rules in qatar regarding compensation take disability into account when such disability results from work-related accidents or illnesses, but there seem to be no adaptations or other tools aimed at allowing the relevant disabled person to keep his or her job after the incident. it is impossible to understand the crpd without taking into account the social model and the human rights-based approach. this perspective is present in the principles of article 3 on work and employment, so measures that states shall take to safeguard and promote the realization of the right to work must be aimed at implementing the right to work for persons with disabilities on an equal basis with others. amongst these crpd measures we can find the obligation of states to (a) “prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.” in addition to the prohibition of discrimination in the workplace, article 27 requires states to ensure equal rights of persons with disabilities in subparagraphs b), c), and d) regarding working conditions, exercising labor and trade union rights, and access to training, counselling, and placement services. also to promote equality, it should be noted that the crpd also requires taking the gender perspective into consideration, which as a general principle (article 3) has a cross-applicability throughout its text, particularly concerning the right to employment and the work of persons with disabilities. finally, since the ultimate goal is the inclusion of persons with disabilities on an equal basis with others, states have to take action in order to ensure the presence of persons with disabilities in various sectors within the labor market and in the public sector. accordingly, paragraph e) urges states to “[p]romote employment opportunities and career advancement for persons with disabilities in the labor market, as well as [offering] assistance in finding, obtaining, maintaining and returning to employment.” further obligations under paragraph f) refer specifically to entrepreneurship and selfemployment to ensure that these aspects of employment are also included in the framework of equal opportunities. article 27.1.g) requires states to employ persons with disabilities in the public sector, and article 27.1.h) sets out an obligation to promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programs, incentives, and other means. thus, the obligations of article 27 not only apply to public policies; in the private sector, regardless of the obligations, they also provide important tools to eradicate discrimination amongst individuals. furthermore in the private sector, regardless of the the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 72 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar obligations imposed on states parties throughout the convention, a specific provision enshrines the essential obligations of states parties; they must ensure and promote the full enjoyment of all human rights and fundamental freedoms of persons with disabilities without discrimination on the basis of disability. finally, the second paragraph of article 27 takes into account the actual exploitation endured by many persons with disabilities, and it requires states parties to take action to prevent these cases. article 26 of the constitution of qatar considers employment, alongside ownership and capital, to be the foundation of the social structure of the state, and regards individual rights as having a social function. however, according to the census of april 2010,24 out of a grand total of 6,156 persons with disabilities, 1,623 (253 women and 1,370 men) were economically active. out of those, 1,570 were working, 14 were unemployed although they had worked before, 38 were unemployed and had never worked before, and there was 1 person on a paid training program. also, 4,535 persons with disabilities were economically inactive (472 of them were students, 1,381 stayed at home, 256 were retired, 362 were not looking for a job, 115 fell into other categories, and 1,949 persons were considered “unable to work”). access to work and an adequate system of social services are conditions for living independently. qatar has a quota system, but in their report we read: “the ministry of social affairs, the ministry of labor and the supreme council for family affairs are currently considering abolition of the requirement on private entities under law no. 2 of 2004 to reserve 2 per cent of jobs for persons with disabilities. the thinking is that the removal of that restriction would open up more opportunities for higher percentages of such persons to be taken on by those entities” (committee on the rights of persons with disabilities 2015, para. 201).25this statement would only make sense if quotas operated to limit the participation of persons with disabilities in the labor market, but this does not appear to be the case. in broad terms, disability is not visible enough within the employment domain. labor rules should explicitly lay down the principle of non-discrimination, and they must also require accessibility and adaptation of the workplace. law 8/2009 on human resources management (which governs the employment of civil servants) takes disability into account when establishing some economic benefits for workers. also, it considers the effects of disability on termination of service (as determined by articles 159.1, 165 and 170, the employee’s service may cease on the grounds of disability if 24 related to individuals with disabilities (15 years and above) by nationality, gender, and relation to workforce population, housing, and establishments census, april 2010. ministry of development, planning and statistics. the sources of data were the state’s disabled centers, the qatar paralympic committee and rumailah hospital. 25 as data on the effectiveness of quotas are lacking, we are not able to assess this purpose. prima facie the qatar’s representative seems to consider quotas as a boundary to further inclusion of persons with disabilities, however quotas are not a maximum but a minimum aim, so this precaution is not necessary. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 73 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo leaves and holidays are finished) and economic compensation for death or disability is provided for in article 171. however, law 8/2009 fails to require any “tests, competitions, and qualifying programs,” as required elsewhere to evaluate the suitability of individuals for employment, to be employed to determine the provision of access (article 14). similarly, law 14/2004 on the promulgation of labor law specifically addresses disability occurring as a result of employment (work-related accidents or illnesses), but again this is only with specific reference to economic compensation. existing labor rules fail to mention concepts such as accessibility, reasonable accommodation, or adaptation of the workplace. law 2/2004, in respect of persons with special needs, considers as a right of persons with disabilities the “provision of work that is appropriate to their abilities and rehabilitate them in both the public and private sectors” (article 2.5). the point of view is, as previously discussed, specialty based and within the medical model: the abilities of persons with disabilities are the precondition for their right to access work. the crpd requires this mindset to change in order to focus on barriers and thus to adapt the workplace to persons rather than persons having to adapt to the workplace. the medical model is also present in article 5 of law 2/2004, establishing a quota system,26 because there is no reference to adaptation of the workplace. however, article 11 is worded as follows: “without prejudice to the rights of special needs persons related to the obtaining of appropriate compensation, violation of the provisions of article 5 herein shall be punishable by a fine of a maximum of twenty thousand riyals and in the event of multiple infringements commensurate multiple fines shall be applied.” and article 7 states that persons recruited in accordance with article 5 “may not be denied or excluded from any privileges or rights prescribed generally for staff employed at the organization for which the special needs [person] works.” in addition article 9 states that persons who are unable to work shall be entitled to a monthly pension (article 9). certainly the applicable law provides for quotas, and employers employing special needs staff are required to record the names of all special needs staff and also all rehabilitation certificates.27 we can see in this provision that habilitation and 26 “a minimum of 2 percent of the total number of job opportunities with the competent authorities shall be allocated for special needs persons holding the certificates or id cards referred to in article 4. such appointment shall be in accordance with the capabilities and qualifications of the people with special needs based on the nomination of the council, in coordination with the competent authorities. each private sector employer employing more than twenty-five (25) persons shall undertake that 2 per cent or at least one person of their workforce shall fall into the category of special needs persons, and such employment must be subject to the written consent of the council. in all cases, upon the written consent of the council, the appointment on the above jobs may not be from non-special needs persons, except in the case of lack of the proper qualifications to fill in the required post.” persons injured due to military operations or during the performance of military service have priority. 27 the form and dates to record shall be decided for the resolution of the chairperson of the council. the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 74 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar rehabilitation are closely related to employment. in this regard, articles 17 and 18 of law no. 38 of 1995 on social security (law 38/1995) set forth the duty of “the ministry [ministry of labor and social affairs] in cooperation with the competent authorities, to take the necessary measures for the rehabilitation of the beneficiaries of [the] social security system in accordance with the provisions of this law, in order to enable them to rely on themselves for their livelihoods. these measures include the following: 1. inflicting [sic] individuals in vocational training centers, 2 organize training courses for them 3. help them establish small productive projects 4. the one eligible rejected, or loved one, rehabilitation advanced without an acceptable excuse, the ministry may stop the pension due distract him [sic].” from this it can be deduced that the ministry is responsible for providing employment to persons with disabilities if they complete vocational training.28 furthermore, the idea of helping persons with disabilities when establishing small productive projects is a step towards fostering the entrepreneurship of persons with disabilities. professional training for persons with disabilities in order to assure their inclusion in the labor market is necessary. the “job qualification center at the ministry of labor” is mentioned in the qatar report (para. 198). this center includes programs to prepare persons with disabilities for the workplace and provides training courses allowing persons with disabilities to obtain a technical or vocational certificate “that qualifies them for access to the job market.” as we have seen, qatar’s legislation on the right to work of persons with disabilities is anchored in the medical model; for example, the ministry of labor and social affairs may stop paying the relevant pension if they reject rehabilitation. qatari law also lacks measures aimed at adapting the workplace to persons who might need particular modifications. the regulation of disability from the specialty perspective is a technical problem, because the applicable legal requirements concerning persons with special needs remain isolated from general regulation. as a result, the system in place regarding access to work also seems not to support the inclusion of persons with disabilities, which is a main goal of the convention. any measure to be implemented in favor of persons with disabilities pursuant to labor rules must be tied to general labor law provisions. 3.4. the right to an adequate standard of living and social protection the medical model is in line with technocratic public policies and with an “assistentialist” approach to disability, however, these interventions have usually been put forward with a disregard for the autonomy of persons with disabilities, and therefore governments will ultimately decide where, how, and with whom persons with disabilities must live. those providing subsidies or economic aid to persons with 28 article 18 of law no. 38 on social security (law 38/1995). the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 75 m. c. barranco avilés, khalid al ali, p. cuenca gómez, r. de asís roig, p. rodríguez del pozo disabilities end up deciding what kind of assistance is required. as an example, personal assistance has not usually been included within social protection. furthermore, social assistance has not usually provided enough support to fulfil the basic economic needs of persons with disabilities, who have traditionally been poor. in countries where a pension is provided, if the system is linked to social security, unemployed persons with disabilities often have serious issues regarding access, and pensions for persons who have not worked are usually lower. therefore a clear difference between persons with disabilities who have a job and those who are unemployed is established, and this is also relevant for women with disabilities; in fact it is particularly significant for women with disabilities. in family-oriented models of social protection (such as those in south america or southern europe), the fate of persons with disabilities depends on the family’s fate, and women are doubly dependent, just like persons with disabilities and persons who take care of others in an unpaid role (bock and thane 1991, 4). article 28 of the crpd introduces the right to an “adequate standard of living and social protection.” social services are related to the provision of this right, and accessibility to general social services and the adaptation of these services to the requirements of diversity should also be considered as part of the realization of this requirement. in general terms, qatar seems to have done great work in providing means and resources to social services. the concern is that the approach does not always revolve around autonomy, independence, and inclusion in the community. however, a general problem is also ascertaining who are actually considered persons with disabilities in order for them to be able to access social services. we can find some comments in the state report’s section related to an adequate standard of living and social protection. the question regarding social services in qatar (not included within constitutional rights) is that the point of view is not the human rights-based approach and measures are not decided based on the input of individual persons with disabilities or their representative organizations. notwithstanding the foregoing, the level of guarantees seems to be acceptable. however, for example, article 10 of law 2/2004 provides for the duty of competent authorities to secure accommodation for special needs persons, thus those authorities will make special adaptations to their provision in accordance with the priorities and controls set by the council. therefore, once again, the approach revolves around the special nature of persons with disabilities and not around universal accessibility. the council of ministers decision no. 49 determines the salary for the groups mentioned in law 38/1995 on social security: widows, divorcees, families in need, persons with special needs, orphans, children of unknown fathers or mothers under 17 years old, children of unknown fathers or mothers older than 17 years old, persons unfit to work, the elderly, prisoners’ families, abandoned wives, or families of missing persons. it must be pointed out that the committee on the rights of persons with the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 76 interdependence, indivisibility and the social rights of persons with disabilities in the law of qatar disabilities does not mention this point in its general comments on the initial report about qatar. qatar seems to have a good level of social protection for persons with disabilities. nevertheless, from a legal perspective it remains unclear who are considered persons with disabilities in order to qualify for social protection. in addition, most of the services are designed from the specialty perspective. accordingly, the field of social protection illustrates some of the general shortcomings of this approach, for instance: absence of the social model, the lack of a unified concept of a person with disabilities, absence of participation of persons with disabilities in the design of public policies on disability, or the absence of persons with disabilities in the design of his or her own life plan. as shown above, most of the challenges faced by qatar regarding the implementation of the social rights included in the crpd have to do with requirements that are far beyond the positive obligations linked to those rights. although we usually hear the claim that social rights depend upon the economy, qatar’s situation shows how even under good economic conditions these rights can still be ineffective. unlike the model of rights included in the crpd, qatar address the rights of persons with disability from the normal-special dichotomy, from the medical model and so disregarding indivisibility and interdependence. usually civil and political rights are deemed to be negative rights, provided with judicial guarantees, whereas economic, social, and cultural rights are considered rights to obtain benefits, the scope of which must be debated and negotiated in the political arena and not within the legal domain. insofar as they are rights to obtain certain benefits, social rights are expensive, so their effectiveness is subject to the existence of resources. nevertheless, if persons with disabilities in qatar face several barriers in order to enforce their social rights is due to the prevalence of a legal capacity regime where persons with disabilities are not granted the right to equal recognition before the law and where accessibility is not guaranteed. the long-standing distinction between categories of rights that has placed such rights in different pieces of legislation within the universal protection system does not account for the new scenario where the principle of indivisibility and 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(2009). health care and the un disability rights convention. the lancet, 374(9704), pp.1796-1798. https://doi.org/10.1016/s0140-6736(09)62033-x supreme education council (2009), additional educational support needs. learning difficulties, disabilities, behaviour support. a pack of policies, guidance documents and support materials for schools, june 2009. available at http://www.edu.gov.qa/cs/additional_education/ae_english.pdf (last accessed may 6, 2017). united nations development group (2003), “the human rights based approach to development cooperation. towards a common understanding among un agencies.” available at https://undg.org/document/the-humanrights-based-approach-to-development-cooperation-towards-a-commonunderstanding-among-un-agencies/ (last accessed nov 1, 2017). the age of human rights journal, 9 (december 2017) pp. 49-80 issn: 2340-9592 doi: 10.17561/tahrj.n9.3 80 https://doi.org/10.1016/s0140-6736(09)62033-x maría del carmen barranco avilés1f khalid al ali2f patricia cuenca gómez3f rafael de asís roig4f pablo rodríguez del pozo5f 1. the crpd and human rights theory 2. the indivisibility and interdependence of human rights and the rights of persons with disabilities 3.1. the right to health 3.2. the right to education 3.3. the right to work 3.4. the right to an adequate standard of living and social protection identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 222 identity of roma women and their exclusion in processes of international and transitional justice ana m. jara gómez1 abstract: among the women involved in international legal environments, there are women who are administrators of justice, and women who remain as recipients, consumers or petitioners of justice. the question of identity, be it national, cultural, ethnic, religious or otherwise may become crucial when positioning human beings in one side of justice or another. this article seeks to analyse the formation of identities and the characteristics of roma women’s identity and specifically their roles in international justice together with some actual european political stances towards the roma peoples. part of the study will take into account the sequence of processes that take place from the appointment of international judges to the resolutions of the united nations security council, and that lead to the granting of a certain place for women in the transitional/international justice scene. nevertheless, there are also groups of women who hardly participate in the international legal scene and, although their role has historically been, and still is, reduced to being victims, their possibilities of action in the field justice are extraordinarily limited. this is the case of roma women in europe. keywords: roma women; ethnic identity; transitional justice; international tribunals; european union summary: 1. introduction. 2. transitional justice and international courts. 2.1. an approach to transitional justice. 2.2. crimes against women. 2.3. women involved in the provision of international justice. 3. politics of identity. 3.1. roma women’s identity. 4. political stances towards roma in europe. 5. final remarks. 1. introduction among the women involved in international legal environments, there are women who are administrators of justice, and women who remain, exclusively, as recipients, consumers or petitioners of justice. it is useful to analyse the characteristics of this distribution of roles and to carry out an analysis that takes into account the role of identity in the processes that take place from the appointment of international judges to the resolutions of the united nations security council, and that lead to the granting of a certain place for women in the international justice scene. the relevance of this analysis lies in a qualitative matter: whether the quality of justice for women increases when women become administrators of justice. and also in a quantitative one: is providing justice exclusively about being a judge or is it also about making the law and/or participating in 1 lecturer in legal philosophy. university of granada, spain (ajara6@ugr.es). this article was partially written in the framework of the project “the science of values and identities in the political process”, the project is part of the european commission’s joint research centre’s enlightenment 2.0 multi-annual research program. mailto:ajara6@ugr.es ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 223 the relevant procedures that make up the state or the legal system? we must leave these questions for future works and focus in the role of roma women in transnational and international justice settings, where women are in general underrepresented. today, the roma population constitutes the largest ethnic minority in the european union (eu), being estimated between ten and twelve million citizens by the european union agency for fundamental rights –fra(2012). but the term roma comprises in one identity many heterogeneous (and also connected) social communities (bunescu, 2014). the overarching term roma is used to refer to the distinct roma groups and subgroups living in europe (roma, romanichels, boyash, ashkali, egyptians, yenish, travellers, gypsies, dom, lom, etc.)2, giving a false image of a single identity, a single culture and, therefore, same values for all these communities. the concept of ethnicity is knotted intimately to the idea of value – who we believe ourselves to be and how we choose to relate to others are issues that are shaped through the prisms of ethnicised cultures (bhattacharyya, 1988). romanies first arrived in europe at the end of the thirteenth century, from india (hancock, 2002). their ethnicity, as identity, was to be fashioned and reshaped by a multitude of influences, internal and external. they would assimilate numerous elements which have nothing to do with india, and they would eventually cease to be, in any meaningful way, indians; their identity and their culture would, however, remain sharply distinct from that of the gadje3 (fraser, 1995). yet there is one essential element that all roma communities have had in common, with both time-based and geographical continuity: they have experienced, and still do, widespread poverty, exclusion, discrimination and, occasionally, violence across the european continent (hancock 1987, 2002 and 2010; liégeois, 2007; ringold, orenstein & wilkens, 2005). in general, it can be observed that it is often difficult to differentiate specific cultural aspects from other features more related to the socio-economic situation in which many roma families find themselves. in other words, there is no appreciation of the distinction between roma culture and marginalization culture (fakali, 2013). yet these attitudes and practices that reproduce the pariah status of the roma, the systematic abuse of their rights, their history of widespread persecution and racial discrimination and the growing european anti-gypsism, are precisely the ones contributing to the survival of the roma as an ethnic, cultural and social identity (petrova, 2003). the gadje european public opinion generally perceives the coexistence with the roma people as a problem derived from the presence of an un-adapted or ethnically unequal population within the general social mainstream identity, that is to say, not as a problem resulting from the presence of a social stratum extremely affected by poverty within the general social trend. it could be said that, apparently, the more intensely the 2 groups externally identified as gypsies that don’t necesarily consider themselves roma actually include the above listed ashkali and egyptians from kosovo and north macedonia; the travelers in the united kingdom and ireland; sinti and kale in other european countries, etc. (petrova, 2003). 3 rafael buhigas (2018) explains the appropriateness and suitability of this term to designate the non-roma person or collective. identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 224 existence of a roma community with urgent social needs is perceived, the more coexistence wil be thought in terms of ethnic or racial differences, underpinning the construction of inequality through the construction of an exclusive identity. petrova states that roma continue to be seen “as parasitic elements, alien to the principle of productivity and its underlying values” (petrova, 2003, p. 130). the history of the roma in europe is that of slavery, criminalization, persecution and forced assimilation (curran, 2016; ivanov, collins, grosu, kling, milcher, o’higgins, slay and zhelyazkova, 2006; janević, sripad, bradley and dimitrievska, 2011; petrova, 2003; weiss-wendt, 2015). it is, however, not possible to fully explain the european majority stereotypes and the political decisions about the roma on the basis of history alone. certain features of the roma social identity may better explain the behavior of other social identities towards roma population. for petrova “the single most important concept that helps explain anti-gypsy prejudice is weakness. to put it simply, roma would not have been ignored, resented, insulted, humiliated, and repressed if they had power” (2003, p. 128). this certainly does not mean that that weakness is an inherent characteristic of roma community members in general. as jenkins (1997) explains, we must distinguish between two processes of ascription: group identification, which occurs inside the ethnic boundary, and social categorization, which occurs outside and across the ethnic boundary. thus, weakness is not the cause, but one of the consequences of the social stigmatisation imposed by the dominant societies, and aimed, in many different ways, to construct and share negative representations of roma capable of weakening and disarming the categorised in their capacity for identity reaction, response and resistance (vallés, 2019). a weak group, in terms of vulnerability, conforming a strong identity, in terms of “otherness”, can play a very useful political role in certain societies; it can play the risk role. risks are not like calamities, afflictions, sufferings or torments that stand between people and their chances of having a good life. hunger, disease, unemployment, are not risks, they are real pains, material experiences. risks are immaterial and invisible, we need to be told they exist for us to fear them, and their causes are almost never transparent. as stated by beck, “(f)or risks, interpretative diversions of stirred-up insecurities and fears are more easily possible than for hunger and poverty. what is happening here need not be overcome here, but can be deflected in one direction or another and can seek and find symbolic places, persons, and objects for overcoming its fear. in risk consciousness then, displaced thought and action, or displaced social conflicts are especially possible and in demand” (1992, p. 77). zygmunt bauman concludes that governments may decide to hide or deny “security risks” and at the same time they can make them up. the reasons to be afraid or fear for safety can be put aside or kept secret, and also they can be imaginary or exaggerated (bauman, 2004). fear may, through the creation of exclusionary identities, become a political value. in this article we intend to address 1) some aspects of conflicts and transitional/ international justice that particularly affect women, who mobilize and challenge, in these areas, the traditional gender roles in the legal professions and 2) some aspects of the european social reality that particularly affect the roma community, understanding that the combination of both analyses can illustrate, albeit in a generic way, the situation of european roma women in the general map of international justice. ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 225 2. transitional justice and international courts 2.1 an approach to transitional justice the united nations (2010, pp. 1-2) states that “transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” involving judicial and non-judicial mechanisms, separated or combined (i.e. prosecution initiatives and trials, truth and reconciliation commissions, amnesties, reparations, institutional reforms). whatever combination is selected must be in compliance with international legal standards and obligations. transitional justice should seek to take account of the root causes of conflicts and the connected violations of all rights, including civil, political, economic, social and cultural rights. there are five common components of transitional justice processes (united nations, 2010). (a) the first one is based on investigation and prosecution; those who are responsible for the commission of crimes, especially serious violations of human rights or international humanitarian law, are tried and eventually sentenced in accordance with international standards of due process. thus, transitional justice programs should develop or reinforce the investigative capacities of the bodies designated for this purpose, promote the independence of the judiciary, guarantee the legal defense of the parties, and strengthen protection and support mechanisms for witnesses and victims. within this component is the delicate issue of amnesties, offering a set of possible results in the face of an eventual balancing of the duty to investigate and sentence the criminals, and on the other hand, peace and reconciliation; (b) the second is related to the right to truth; in this context, truth has been understood in three different dimensions: the factual truth, the personal truth and the social truth. the factual truth refers, for example, to the location of mortal remains or the clarification of the events that occurred during the conflict. the personal truth allows the expression of that truth and the unburdening of the person through that manifestation. the social needs to be adopted through dialogue and debate (garcía sayán & giraldo muñoz, 2016); (c) reparations are the element of transitional justice seeking to redress violations of human rights by delivering to victims material and/or symbolic benefits; (d) the fourth element is possibly the most ambitious one, for it might virtually mean the construction of a new state apparatus. the component involves institutional reforms whereby those institutions that extended the armed conflict should be transformed into others aimed at sustaining peace and the rule of law. the transformation includes positive training and capacitybuilding measures for officials in the post-conflict era, and the investigation and removal from office of those who actively participated in the perpetration of serious human rights violations, who allowed them to occur or who denied their investigation; (e) the last element refers to national consultation processes, aimed at designing transition measures suited to the specific context in which they are to be implemented. one of the central goals of post-conflict accountability processes is to face and deal with abuses and atrocities that occur in the context of armed conflicts or non democratic regimes. transitional justice, without delving into the various types of transitions that exist, helps remove perpetrators from political influence and provide recognition to victims and may lead to fewer grievances in the future. the ability to succeed in these goals, however, identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 226 does depend on a number of elements which may influence the implementation process and the role that reconciliation plays for the establishment of sustaining peace and/or democracy. transitional justice is generally viewed as having a restitution function yet relevant feminist literature describes how it operates “to facilitate the workings of the political sphere by absolving the need for absolute accountability” (aolain & turner, 2007, p. 231). when we look at transitional justice we are often unable find a statutory procedure provided and, consequently, it becomes easier to reconcile its foundation with non-legal conceptions of authority and informal or merely political processes and mechanisms. the multiple distinct experiences of transitional justice use a diverse range of institutional strategies to come to terms with the past, prosecute the criminals, and give dignity to victims. it is often defended that not all those who participated in the armed conflict can -or shouldbe subject to the same transitional justice measures, nor are all victims achieving the same type of reparations. a balance between both aspects is claimed as necessary to achieve the transition and to prevent the creation or resurgence of the conditions that led to the previous situation (garcía-sayán y giraldo muñoz, 2016). it makes sense also to defend, in conexion with the disparities of transitional justice, whether it might be better explained and understood if it is not assumed to be a kind of justice. without resolving this debate here, it is worth mentioning that peace agreements and processes and political transitions are deeply gendered (see bell & o’rourke, 2010; bell, 2015; o’reilly, ó súilleabháin & paffenholz, 2015). as aolain & turner explain, (e)ssentializing women’s experiences of conflict and political repression, in combination with women’s exclusion from peace processes, has a compound effect on our understanding of conflict (including its potential resolution) and on what happens or ought to happen in the transitional phase. in this context, it is persistently unacknowledged that women play a series of complex and potentially paradoxical roles in a conflicted society. these can include a combatant role or a supportive role in the perpetration of violence, as well as the more traditional and highly visible roles of victim and peace maker in informal community and family settings. if these multiple capacities were imaginatively harnessed, women could arguably make significant contributions (2007, p. 243). as will be outlined below, the masculinity of transitional justice, and of international law in general, has shown itself vehemently and unabashedly, making feminists ask whether women were as human as men (mackinnon, 1994; franke, 2006; peach, 2001). 2.2. crimes against women as mentioned above, a number of current debates around transitional justice recognize the importance of paying attention to gender issues during armed conflict and in post-war periods. this progressive recognition of the relevance of sexual affiliation ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 227 when examining the events and consequences of conflict on individuals has been enhanced by the development of international legal norms concerning sexual violence during warfare. although not a closed list, the fact that rape and sexual violence were not plainly listed as violations of the laws and customs of war, and did not appear on the list of crimes against humanity, ensured that these violations did not define the nuremberg trials (nuremberg international military tribunal) and received more than limited attention in tokyo (international military tribunal for the far east). the tokyo indictment included allegations of gender-related crimes, described the rape of civilian women and health personnel as inhumane treatment and disrespect for family honor and rights, and prosecuted these crimes under the umbrella of conventional war crimes. the failure to include gendered persecution alongside political, racial and religious persecution reflects the invisibility of women and gendered experiences not only in war and post-conflict justice processes, but in society. the statutes of the nuremberg and tokyo tribunals created the jurisdiction to prosecute crimes considered serious by the allied forces and which did not previously exist in international law: war crimes and crimes against humanity. but despite the historical developments, nowhere in the statute of the nuremberg tribunal could the crime of rape or any other crime of a sexual nature be found, although there was sufficient documentary evidence about the mass rapes, forced sterilizations and abortions, sexual mutilation and sadistic sexual assaults that took place throughout world war ii. sexual atrocities were not charged, nor were the criminals punished. this was an era of silence, prosecutors protected themselves from the issue as if it were simply in extremely bad taste (hagayfrey, 2009, pp. 62 ff; chinkin, 2001; argibay, 2003; skjelsbæk, 2001). it is not hard to conclude that the vulnerability of some women, and the visibility of that condition, “are determined by their position within the societies in which they are abused, as well as their position in the discourses that give meaning to the abuses” (žarkov, 2007, p. 181). rape was used by the serbs in croatia, bosnia and herzegovina and kosovo over the last decade of the 20th century to contaminate the blood of other ethnic groups, including the roma, ashkali and egyptian communities. the serbian forces that committed mass rapes were aware of the significance and consequences that their sexual crimes would have on other cultures. rape is a particularly effective weapon to dominate, humiliate, and completely subjugate women, their families, and their ethnic communities (olujić, 1998). in balkan communities, if a woman has sex outside of marriage, she will lose her honor and dishonor her family as well. the conditions under which it is lost are relevant only to the woman, the loss of honour is no less real because it is the result of rape, and the consequences for the woman in the family or in the community are the same. in the balkans, where a man’s honor depends on a woman’s chastity, a husband who believes that his wife has had sex with another man, forced or not, must reject her to save his pride as a man. she can tell what happened to nobody. if she was lucky enough not to get pregnant, she will most likely hide the story to save the family and herself from dishonor. if she is forced to go public, it will mean for her no more than further tragedy (ray, 1997). identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 228 in the case of roma women, (a) victim of rape may be considered as a criminal, or as someone who has cooperated in the crime (…) a woman who is raped is seen as a polluted woman and as such has to be rejected by the family and the community. a woman who is not married will have to keep it a secret otherwise her chances of getting married will be extremely slim. if a married woman is raped and the husband finds out, he will almost certainly leave his wife. even in this case, he will always be remembered as the man whose wife had been raped. the same stigma applies to the children and the grandchildren. yet without the support of a husband and/or her community, a romani woman is condemned to die (ceneda, 2002, p. 51). crimes of sexual violence are explicitly prohibited by humanitarian law. but sexual violence, including rape, was not defined until the international tribunals for the crimes committed during the conflicts in rwanda and yugoslavia, respectively, issued rulings on the matter (campbell, 2007). the significance of rape and the terror it instilled was of such magnitude that the strategy succeeded in consolidating the territorial gains of the serbian soldiers. moreover, because rape was approved and sometimes ordered by the higher ranking military, the soldiers had constant sexual access to women and girls, maintaining the rise in their feelings of superiority and domination. this access was ensured by the establishment of rape camps. it is not known how many women were interned in these camps and repeatedly raped by large groups of soldiers and paramilitaries (women in the law, 1994). there are no official figures on the number of women raped during the wars in the former yugoslavia. it is estimated that between 30,000 and 50,000 women were raped in bosnia and herzegovina and between 10,000 and 40,000 in kosovo. the number of women raped in croatia, where the government has not made an estimate, has to be added to these approximations (amnesty international, 2012). 2.3 women involved in the provision of international justice since women make up approximately half of the world’s population, they are significantly under-represented in the international bodies responsible for implementing, monitoring and developing international law (grossman, 2012). as of june 2021, there are seven women among the eighteen members of the united nations human rights committee, five among the members of the committee on economic, social and cultural rights and three among the ten members of the committee against torture, which means that in the most relevant global mechanisms for the protection of human rights the quota of women does not exceed 30%. by mid-2021, there are three women judges in the international court of justice (out of fifteen members) and the international tribunal for the law of the sea has only five women (out of twenty-one members). since its establishment, only 3.7% of the judges of the international court of justice, 10.4% of the judges of the european court of ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 229 4 case it-04-84-i, prosecutor v. ramush haradinaj, idriz balaj & lahi brahimaj, 29 november 2012. justice and 2.5% of the judges of the international tribunal for the law of the sea have been women (borda, 2016). in total, only 18% of the members of the international courts are women. we may tentatively point out three reasons for this under-representation: the very international courts that silence and approve of discriminatory composition; the governments that propose candidates for these positions; the civil society that fails to take care of these appointments (gqual, 2015). during the creation of the international criminal tribunal for the former yugoslavia, a number of non-governmental organizations lobbied to include women judges, among other initiatives to ensure that perpetrators and instigators of sexual violence were punished. women’s caucuses and groups feared that the massive sexual assault of tens of thousands of women, mostly bosnian muslims, would be ignored. women’s groups thought that the presence of women judges could make a difference in the prosecution of international crimes against women. for these reasons, women's lobbies pushed hard for gabrielle kirk mcdonald and elizabeth odio benito to be elected to the international criminal tribunal for the former yugoslavia –icty(grossman, 2012). the national alliance of women’s organizations, a british advocacy group concerned with women’s human rights and the promotion of equality, viewed the establishment of the icty as an opportunity, not only to secure full justice for the women of the former yugoslavia who have been and continue to be mistreated in gender-specific ways, but also to correct the historical trivialization of abuses against women during war. among their proposals to achieve these goals was that at least 50% of the staff involved at all levels and in all areas of the tribunal’s functions should be women. the organisation of the islamic conference’s proposal on the composition of the tribunal also called for judges to represent, on an equitable geographical basis, the principal legal systems of the world, with a special presence of muslim countries and with due regard to gender representation. similarly, the lawyers committee for human rights proposed that the criteria for the selection of judges be designed to ensure diversity in terms of geographical origin, gender and religion. the united nations secretary-general’s report on the establishment of a yugoslav tribunal encouraged the recruitment of female staff, and the united states representative to the security council stressed the importance of women jurists and prosecutors at the icty (grossman, 2012). it is in the creation of the international criminal tribunal for the former yugoslavia that feminist activism and women's groups have been most present, and even so, during its 20 years of work, it tried only one case involving the rape of a roma woman, haradinaj et. al, which ended in an acquittal4. therefore, however tentatively, it can be affirmed that the thousands of roma women who were raped in the balkans do not appear in the historical records as justice providers, claimants for justice, nor even as victims in a position to demand this justice. the romani women survivors have been rendered invisible in transitional and international justice identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 230 processes as much as in the communities where breaking the silence signifies isolation. in the field of transitional justice, feminist activism has made great progress (mertus, 2008; halley, 2009; aolain, 1997) and nevertheless, these have been limited to being a vehicle for the demands of western feminism, with objectives that underpin the liberal legal model, denying the social and legal plurality of the world. feminist approaches “began with a foundational engagement with the boundaries and biases in international law rather than a focus on specific arenas of rights and protections applied to women” (heathcote, 2012, p. 6). in many countries where systematic violations of women’s reproductive rights have been committed in the past, and where forced and coercive sterilization has been applied on a massive scale to roma women as a state policy “the political authorities have failed even to apologise or to assume responsibility. where this has taken place, there has been no legal or financial redress” (european economic and social committee, 2018, parr. 431). nonetheless, in two cases, decided in 2011 and 2012, the european court of human rights found the coerced sterilization of roma women is in violation of the prohibition of inhuman or degrading treatment and the right to respect for private and family life of the european convention on human rights (v.c. v slovakia and n.b. v slovakia5). 3. politics of identity why would some political parties or governments use otherness and ethnicity to make populations scared? is it just a way to make majority populations distracted from real threats or problems? why would risks be invented or, in other words, what do invented risks actually achieve? we would like to analyse whether the absence of roma women in international and transnational justice scenarios is one of the consequences of the politics of identity. some authors argue that ethnicity is primarily a result of humans’ efforts to reduce the uncertainty that they face in the world, while ethnic politics is mostly about particular interests. the most fundamental human interest, they argue, is the maximization of life chances, translated into wealth, real security, and power as well as desires for status and selfesteem. therefore, explanations of ethnic politics must separate ethnicity from the realm of motives (desires, preferences, values) at the same time that they introduce it into the realm of strategy (hale, 2008). it seems common all throughout europe that –initiallynot very relevant politicians and political parties, which have no recognizable electorate or program, resort to the ethnic or the nationalist discourse to get a place under the spotlight that may lead to power. as a strategy we may understand the dynamics of political bias or racism towards the roma community, but still, it is a strategy that would never have potential to show results if citizens were not already prepared to accept the exclusionary discourses and/ or adhere to them. 5 echr case v.c. v slovakia, 8 november 2011 and echr case n.b. v slovakia, 12 june 2012. ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 231 david mayall explains that the processes of categorization, labelling and representation are at the heart of majority-minority relations, shaping and being shaped by popular responses and state attitudes and/or policies. mayall stresses the importance of contemplating these processes in a two way, mutually reinforcing relationship with responses: “an image of a group can lead to a particular response, just as a particular response can lead to the creation and legitimization of an image” (mayall, 2004, p. 18). only minimum, arbitrary category information is needed to create a sense of ingroup and out-group. the positive notion of a group relies on favourable comparisons to other groups. to enhance their self-esteem people will try to enhance the salience and value of their group or try to switch the group. groups which are highly valued will restrict social mobility to retain meaningful distinctions between themselves and the out-groups; losses are accepted in order to retain intergroup differences (tajfel and turner 1979). initially, it may seem obvious that social categories, their membership rules, content, and estimation are the products of human actions and discourses; the result is the constant change to which they are exposed over time. with the term identities translated as social categories, this seems a quite reasonable claim. as fearon and laitin locate it, “it even verges on tautology. how could social categories be something other than socially constructed?” (fearon and laitin, 2000, 848). identity, according to this sociological conception, bridges the gap between the inside and the outside, between the personal and the public world. the fact that we project ourselves into these cultural identities, while internalizing their senses and values and making them part of us, helps us to align our subjective feelings with the objective places we occupy within the social and cultural world. identity, then, bonds the subject and the structure. it stabilizes both the subjects and the cultural worlds that they inhabit, making them more united and predictable to each other (hall, 2010). values and practices that foster hatred emerge in response of the above-mentioned risk politics and perceived menaces, narrated or built for the public with considerable success, denying the very potentiality of pluralism and cultural heterogeneity. political and social implications of the construction of exclusionary identities today may very probably shape the new contours of violence to be witnessed in the next decades (jara gómez, 2019). roe explains that when politicized, social exclusionary identities will blame the social other for past crimes and tragedies, and very probably the excluded groups may be suspected to harbour hostile purposes. this is used to support the claim that minorities living inside national boundaries should be denied equal rights. these minorities will appear to pose a menace if they are left unsuppressed; moreover, their suppression will be seen as morally justified due to their misbehavior, be it past or planned. “in this way, certain existing rights will be revoked or demands for new rights will be denied – rights deemed vital for the reproduction of societal identity. national movements that are rights suppressing are generally seen as ‘ethnic nationalist’” (roe, 2005, 63). zvetan todorov describes ethnocentrism as the most common universalistic choice of values. universalism. it consists of unduly elevating the values of the society identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 232 to which one belongs to the category of universal. when he aspires to the universal, the ethnocentrist starts from something particular, which he immediately tries to generalize; being something particular, it must necessarily be familiar to him, that is, it must be found in his culture. for todorov, the only thing that differentiates a universalist from an ethnocentric is that he attends to the law of the least effort and proceeds in a non-critical manner: the ethnocentrist believes that his values are the values, and this is enough for him; he never really tries to prove it. the non-ethnocentric universalist would try to base on reason the preference he feels for certain values to the detriment of others and be willing to abandon what is familiar to him and adopt a solution observed in an external culture, or one found as a result of deduction. ethnocentrism thus has two facets: on the one hand, the universal claim, and on the other, the particular content (todorov, 1991). 3.1 roma women’s identity in an analysis that connects some of the classic theories of justice with the identity of roma women, pérez de la fuente (2008, p. 145) concludes that roma women have to struggle for the inclusion of their equal dignity, for the redistribution of resources and access to rights in the face of inequality and for the recognition of their identity in the face of assimilation into the majority, without this implying a reinforcement of traditional hierarchies. roma women, he adds, ought to be agents for the transformation of their environment in the most equitable sense of gender justice. the processes of marginalization of roma women take place along the intersection where social, gender and age inequalities within their own communities and the ethnic, social, gender and age inequalities that exist in relation to the majority society in question intersect. it should be highlighted that “(t)he single focus on women’s or gender-based discrimination (…) could lead to blindness concerning the issues confronted by women who are simultaneously vulnerable to other power vectors, such as race/ethnicity, class, or disability” (kóczé, 2009, p. 17). angéla kóczé further explains that romani women activists have to face two central dilemmas when looking at the intersection of sexism and racism. the first one is intradifferentiation, which translates into addressing the specific gender problems of roma women through dividing them into separated specific groups with specific difficulties. the second dilemma is the risk of exposing intra-group hierarchies through discussing issues (i.e., early marriages) that might stigmatize the group or strengthen majority biased representations of roma culture as repressive and backward, thus making gender claims a way to be disloyal to the larger roma community (kóczé, 2009, pp. 19-21). it is up to women, as the main educators, to pass on the values to the next generations, assuming that the survival of the features that are considered to make up the romipen or roma cultural identity depends on them and such role is justified on the basis of gender differences. women, as in other ethnic groups, have a greater responsibility to show the representative and differentiating symbols of their culture, especially the most visible habits or the elements that characterise their clothing and image (peña garcía, 2020).the debate on whether their role as women and child bearers within their community should be changed is ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 233 very much intertwined with the matter of the roma identity in general. any effort to modify such role might be understood as “giving away the romani identity, especially in a historical context where roma have suffered at best prejudice and at worst extermination” (ceneda, 2002, p. 31). unfortunately, the alternative to modifying the role is far from rosy. there are many inequalities between roma men and women. economic and social constraints show the low status of roma women not just in society but inside their own families. as we will describe further below, this is added to the lack of formal employment, reduced access to property, limited education, and dependency on the family and/or partner. dependency is used here as a cultural concept, as roma women are gradually becoming main income providers in some eastern european communities, yet in many cases “it is still the men who have control over the economic resources. (…) (b)y placing the burden of economic provision on women without giving up control of the resulting resources, men are trying to maintain their power; in this light it appears that the status of women has decreased in roma society, rather than increased” (jones, 1998, p. 59). the initiative called “the decade of roma inclusion (2005–2015), was initiated by undp, the world bank and the open society institute and identified four key areas where gender inequalities were more manifest, namely education, employment, health and housing (cukrowska & kóczé, 2013). without exploring into each of them in detail, and bearing in mind they are often connected, we want to highlight that the gender gap in the overall years of education is higher among roma, 17% in favor of roma males and just 3% in favor of non-roma. non-roma women employ in education almost twice as many years as roma women (10.7 and 5.66 years respectively). likewise, roma men use in education 61% of the time the non-roma men do (the share for romani women is 53%). the data demonstrates that roma men suffer ethnic gap while roma women suffer both ethnic as well as gender gaps when it comes to the time spent in an educational system (cukrowska & kóczé, 2013, p. 14) the situation in east europe is is exemplified in the following terms: romani women are the most vulnerable ones, and hardly anyone cares about our protection and education. in yugoslavia, patriarchy has built up a hierarchy of power, based on age and gender, in which romani women and girls have very little control, if any, over their sexual or married life, the number of children they have and the time between births. the consequences are short lives and a vulnerable physical and mental state (ilić, 2000, s/p) it would seem defendable, as merhaut advices, to critically scrutinize inferior position of a woman in the roma community regarding gender roles and power mechanisms. “related ethnographic descriptions can be used to understand better how the roma community works, but they must not be uncritically embedded in the summary of the culture that is needed in the name of romani pride and the suppression of ethnocentrism” (merhaut, 2019, p. 32). roma women’s movements frame their plans of action by identifying injustices that roma women experience and by offering explanations on the causes behind and identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 234 solutions to those wrongs and discriminations. various injustices and discriminations that roma women endure are also shared by non-roma women and roma men. feminists explore that patriarchy is a common experience of many or all women in variable degrees in all cultures (kóczé et. al., 2018). this may open the door to important associations, as corradi explains, “(t)he in-progress alliances between gypsy women, feminists, and lgbt-queer activists happen in such a way that these become transformative opportunities for all social actors involved. through common political praxes—sit-ins, demonstrations, squats, publications—the act of working together impacts grt communities, the migrants’ milieu, and parts of the gadje world” (corradi, 2021, p. 159). 4. political stances towards roma in europe julie mertus, when analysing the balkan wars, clarifies that the politics that take root in antagonistic truths must necessarily be propelled by a culture of victimization and a history of real and imagined domination of one group over another, by the underlying long-term political and social oppression of a disadvantaged ethnic group and by structural poverty, by the manipulation of misunderstandings by the media, and by the absence of civil and political institutions that allow for the orderly expression of political pluralism, respect, tolerance and consequently the divergence of opinions (mertus, 1999). this very clear description of extreme “otherness” politics may come in handy to understand some of the political positions that the european states have taken towards the ethnic roma population. since 2005-2006, and very intensely since 2008, extremist parties and politicians have sharpened anti-roma rhetoric, creating a climate in which rights violations are more likely to go unpunished. in hungary, a paramilitary organization with an openly racist agenda, the magyar garda, continues to operate despite being banned by the supreme court and the anti-roma jobbik party won four seats in the european parliament in 2009. in italy, the government has used anti-roma rhetoric to harden public opinion towards the roma and fuel a state of emergency aimed exclusively at expelling roma from their homes and cramming them into controlled camps (glenny, 2012). but the roma question is not hungarian only, it is even far from being limited to eastern europe. during the summer of 2010, in an unpredictable series of events, the legal position of the roma population was put at the top of the security policy agenda by the french government. the right-wing party led by nicolas sarkozy took a tough stance towards what he called “the roma illegal immigrants”, who had been accused of being a community of criminals occupying camps illegally (about, 2012). in a television advertisement for the june 2009 elections for the european parliament, the czech national party showed a video with a drawing of a white sheep kicking a black sheep off the czech flag. after this first image –which had already been used by a swiss party beforeit could be read “(t)he final solution to the gypsy question proposed by the national party is a blueprint for all european states” followed by a picture of two men with few teeth clutching an axe and the text “stop black racism”. the advertisement then shows the text “national party against integration of inadaptables” (albert, 2012, p. 139). ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 235 all these examples help illustrate julie mertus’ words quoted above. without wishing to draw overly dramatic conclusions regarding the actual european political situation, and in view of the succession of supremacist outbursts, which are so numerous that we cannot expound them exhaustively, it could be said that continental constitutional democracy may be requiring certain steps in order to survive in satisfactory conditions. rather than a new ideology, neo-nationalism is a social phenomenon in the european union, involving new forms of community making along national or regional lines, established on a reformulation of the expressions for identifications against the background of uncertainties caused by globalization (picker, 2012) the image of the roma as a people with far away origins, who can be deprived of their very citizenship and considered not european has not changed much in the past centuries. they are said to possess an alien culture, live in great poverty or squander money irresponsibly, have no scruples, be extremely emotional, have many children, be uneducated and unable to hold a job, suggesting that feature is an ethnic characteristic of the roma. this is why often the roma are presented as an unemployed and severely backward group of the population which relies on social benefits, forgetting to speak about the social stratification of this group or the strategies they have developed to survive the situation of unemployment (wizner, 2002). the eu framework for national roma inclusion strategies identifies as an objective within the europe 2020 inclusion process to ensure that all roma children complete at least primary school. on average, 97.5% of children complete primary education across the eu, which serves as a benchmark. eu agency for fundamental rights (fra) data on roma education (in spain, portugal, france, bulgaria, czech republic, greece, italy, hungary, slovakia, poland, romania) show that in these countries between 20 and 40% of roma aged 16-24 have not completed primary education. education has an impact on future life opportunities. not only is it crucial for finding stable and well-paid employment, but it also has an intrinsic value. it is therefore of concern that girls have been shown to be particularly vulnerable to exclusion from education. the results show that roma women still lag behind men in all the educational parameters observed: self-perceived literacy, school attendance rate and highest level of education achieved. however, the gap narrows when looking at the younger age groups, indicating that there have been improvements over time, especially in some eu member states (european union agency for fundamental rights, 2014). fra figures show that 80% of roma respondents aged 16 and over report being able to read and write. this already indicates an important ethnic difference: the proportion of gadje people who identify themselves as literate is 99 %. the gender gap is also pronounced. in general, roma women report lower levels of literacy (77 %) than roma men (85 %) (european union agency for fundamental rights, 2014). the situation of the roma in south-eastern european countries has been documented in some detail by ivanov et. al. (2006), connecting the data we have seen with the disadvantage of roma in the labour market. there are usually two explanations for this disadvantage: (a) the lower level of education observable among roma, which, since employment opportunities and wages increase with educational attainment, imply a restriction of the employment opportunities available to roma; and (b) the discrimination identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 236 faced by roma in the labour market, where employers are less willing to employ them and pay them lower wages compared to gadje with similar qualifications. in an attempt to identify the relative impact of these two explanations, it can be concluded that both have some validity, but that, in fact, the lower returns to education -that is, the lower benefits received by the more educated roma in terms of greater chances of finding a job and higher wagesthat result from discrimination explain to some extent the lower level of motivation and participation in education of this ethnic group (o’higgins, 2010). although, as mentioned previously, there have been significant improvements in educational attainment, these have not translated into improvements in employment or access to the labour market. the type and quality of employment in roma communities is very different from that offered to the majority of the population. analysis shows that roma employment rates are clearly lower when the community lives in segregated areas and that most employed people remain below the risk of poverty line, indicating that jobs are often irregular and poorly paid. roma women often face multiple obstacles to employment: traditional gender roles, low skills and vocational training and few options for childcare, except within the home. living in segregated areas and facing discrimination makes access to the labour market even more difficult. as a result, the employment situation of roma women differs from country to country. in the former socialist societies, there is a long tradition, which continues today, of women and men sharing equally in labour participation (european union agency for fundamental rights, 2014). the roma community is one of the most affected by the processes of globalization and, in the post-socialist economies of eastern europe, the economic restructuring and industrial decomposition that resulted from integration into a global economy meant a massive loss of employment opportunities for roma men and women. the expansion of the institutional framework in the post-socialist regimes created jobs primarily for those who had gained access to higher levels of education (asztalos morell, 2016). in this way, the levels of income from economic activity, which in the countries of the east are among the lowest in the european union, will be even lower for roma. roma women will be excluded from certain professions and jobs, and additionally they will have restricted access to an undetermined number of health measures and care compared to romany men and non-romany women. when they are victims of gender-based violence or sexual violence, romany women will also have difficulties in accessing protection and institutional and police support (janević, sripad, bradley and dimitrievska, 2011). the reluctance to report a crime to the police, as explained by the agency for fundamental rights in its hate crime reports, means that such crimes will not be investigated nor prosecuted, reinforcing the sense of impunity of the perpetrators, while victims do not benefit from the legal protection and psychosocial support to which they are entitled under the eu victims’ rights directive. while some victims of hate incidents may find other ways of coping, such as assistance from family and friends, people who might have chosen to seek legal redress if they had access to information about their rights and support mechanisms are unable to do so if they do not report such crimes. the unwillingness of victims to report crimes to the police and criminal justice institutions is nothing less than a measure of their institutional effectiveness (european union agency for fundamental rights, 2019). ana m. jara gómez the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 237 the rights of minorities and non-discrimination of women are currently at the centre of many contemporary human rights debates. there is an extensive political and even legislative development of numerous international standards coming from the united nations, the council of europe, the organization for security and cooperation in europe and the european union, aimed at nothing less than a better and broader inclusion of minorities and greater equality for women in all aspects of life. the roma is considered the most marginalized and discriminated minority in the social, economic and also legal sphere. as a result of this situation there seems to be a reactive response of struggle and demand for the recognition and guarantee of the rights of the roma worldwide, which extends to many institutional and civil society levels. but as far as the doctrine of gender equality applied to the roma collective is concerned, there is little progress and even less commitment. wherever programs and actions are implemented that seek recognition of the rights of the roma minority, the rights of roma women receive more limited attention. roma women accurately represent the multiple discrimination suffered by many minority women: discrimination because they are women, because they are roma and, very often, because they are poor. moreover, romani women not only face discrimination by the social majorities but also experience, as explained above, internal, gender-based discrimination in their own communities (ravnbøl, 2010). 5. final remarks it can be concluded that, although the roma are marginalized actors in different armed conflicts, they are certainly not peripheral victims of these conflicts. however, as wars are not fought in their name or for their benefit, and the armed conflicts in the balkans are a paradigmatic recent example, in most cases they are not recognized as victims. in the case of women, silence, forced by the stigma of sexual violence, means absolute absence from the international legal scene. the fact that they are not recognized as victims and that attacks against the roma population are justified as collateral damage perpetuates not only their marginalized position, but also the anti-gypsyism of peacetime social structures. roma women represent a complex issue in the social and legal world; they are a disadvantaged group within a minority group. it is important to analyse how roma women enter into contemporary approaches to minority rights and gender equality, or how they fail to be present in such approaches. the responsibility can be placed, at least in part, on the international community, states with significant roma minorities, the global roma movement and the feminist movement for not specifically addressing the problems of roma women. this multi-actor critique raises questions as to whether the traditional separation in the international human rights field between gender and minority issues has in practice become a gap capable of causing the isolation of such relevant groups as women belonging to certain minorities from the application of human rights and transitional justice. on this basis, it can be argued that women belonging to ethnic or national minority groups, and particularly roma women, face a double disadvantage, not only in social life, but also in the realm of international law and policy. therefore, and using similar words to those expressed by the european commission (2012), a better integration of romani women is a moral and economic requirement that must also require a change in the mentalities of both the majority collectives and the identity of roma women and their exclusion in processes of international and transitional justice the age of human rights journal, 17 (december 2021) pp. 222-243 issn: 2340-9592 doi: 10.17561/tahrj.v17.6385 238 members of the roma communities. we would add, perhaps also a change in the approach of feminism in general. references about, i. 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(2001). “sexual violence and war: mapping out a complex relationship”, european journal of international relations, no. 7, pp. 211-237. https://doi.org/ 10.1177/1354066101007002003 tajfel, h. and turner, j. (1979). “an integrative theory of intergroup conflict”. in william g. austin and stephen worchel (eds.). the social psychology of intergroup relations. monterey: brooks/cole pub. todorov, z. (1991). nosotros y los otros. buenos aires: siglo xxi editores. united nations (2010). guidance note of the secretary-general: united nations approach to transitional justice, march 2010. https://www.un.org/ruleoflaw/files/ tj_guidance_note_march_2010final.pdf vallés, m. h. (2019). “el proceso de construcción y categorización de la alteridadla categoría «tigani / gitano» en la historia de rumanía”, ius fugit: revista interdisciplinar de estudios histórico-jurídicos, no. 22. https://ifc.dpz.es/recursos/ publicaciones/38/03/06valles.pdf weiss-wendt, a. (2015). the nazi genocide of the roma, new york and oxford: berghahn books wizner, b. (2002). “how the roma make a living”. in kállai, e. (ed.) the gypsys/the roma in hungarian society. budapest: teleki lászló foundation. women in the law project of the international human rights law group (1994). “no justice, no peace: accountability for rape and gender based violence in the former yugoslavia”, hastings women's law journal vol. 5, no. 1. žarkov, dubravka (2007). the body of war: media, ethnicity and gender in the break up of yugoslavia, durham: duke university press. https://doi.org/10.2307/j. ctv11cw34p received: june 30th 2021 accepted: august 21st 2021 https://doi.org/10.1177/1354066101007002003 https://doi.org/10.1177/1354066101007002003 https://www.un.org/ruleoflaw/files/tj_guidance_note_march_2010final.pdf https://www.un.org/ruleoflaw/files/tj_guidance_note_march_2010final.pdf https://ifc.dpz.es/recursos/publicaciones/38/03/06valles.pdf https://ifc.dpz.es/recursos/publicaciones/38/03/06valles.pdf https://doi.org/10.2307/j.ctv11cw34p https://doi.org/10.2307/j.ctv11cw34p identity of roma women and their exclusion in processes of international and transitional justice 1. introduction 2. transitional justice and international courts 2.1 an approach to transitional justice 2.2. crimes against women 2.3 women involved in the provision of international justice 3. politics of identity 3.1 roma women’s identity 4. political stances towards roma in europe 5. final remarks references the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 86 the rise of human rights issue in the post-cold war world: the vienna conference (1993) matheus de carvalho hernandez 1 abstract: this article aims to analyze the world conference on human rights (vienna, 1993) as a landmark in the human rights field. the goal is to discuss two hypotheses. first, that the conference played an important role in the dissemination of human rights as an issue-area in international relations. second, that the conference contributed to the process of “relaxation of sovereignty”. the article is divided into three parts: the background to the conference; the relationship between human rights and state sovereignty in the international system; the third section aims to connect the two hypotheses based on the debates of the conference. the goal is not to analyze the conference itself, but rather to demonstrate the trends that were empowered and unleashed by it in relation to the two hypotheses. keywords: human rights. international relations. vienna conference. sovereignty. contents: i. introduction; ii. background and initial discussion of the vienna conference. short-lived optimism: the preparatory process and the final document; iii. universality at the vienna conference: a unifying controversy; iv. the complex relationship between human right and sovereignty in the international system; v. debate on international human rights: sovereignty vs. global order; vi. manifestations of tension in the vienna conference; vii. final considerations i. introduction the 2 nd world conference on human rights, organized by the un, took place in vienna from june 14-25, 1993. it was an event of great magnitude for human rights for several reasons. first of all, due to its high attendance figures: 171 state delegations and 2,000 ngos (813 as observers), with some 10,000 participants overall. moreover, the vienna conference also stands out for having taken place with the majority of the world’s independent states, unlike the 1 st world conference (teheran, 1968) or the universal declaration of 1948. 1 international relations assistant professor of universidade federal da grande dourados, ufgd/brazil (matheuschernandez@gmail.com; matheushernandez@ufgd.edu.br). the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 87 the conference approved the vienna declaration and programme of action – the most comprehensive document on human rights adopted by the international community – which was prepared by a drafting committee chaired by brazil. the affirmation that the vienna conference constitutes a landmark for human rights is based on two hypotheses. the central hypothesis of this article is that the conference, because it was held shortly after the end of the cold war and provided the setting for a pluralized discussion (with the participation of delegations of various different states, ngos and other civil society organizations), universalized the debate on human rights, which, from this point on, would be discussed (even when being contested) by actors from various cultural, social, political and economic backgrounds. the other hypothesis, intended to demonstrate the magnitude of the conference, draws on the idea that the event was responsible for the intensification of the complex process of relaxation of state sovereignty that began after the second world war. the relationship between human rights and sovereignty may indeed be characterized as complex (kritsch 2010). this means overcoming debates that are overly polarized, i.e. beyond merely complementary or antagonistic. it is based on this perception of theoretical and empirical complexity that i observe the occurrence of an ambivalent movement of relaxation of sovereignty, primarily in the post-cold war period in which the vienna conference took place. the more normative human rights conceptions admit the continuity of the concept of state sovereignty, but envision that it will be overcome based on the observance of post-national trends. the more analytical conceptions, meanwhile, admit the existence of cosmopolitan trends but assert that this is insufficient to not consider state sovereignty a priority in the international system, both as an obstacle to the dissemination of human rights and that the national setting is still the primary sphere for guaranteeing and implementing these rights. it is due to this complexity that, in this article, i describe this movement as a relaxation of sovereignty and not as a diminishment or relativization, which are the terms typically used, particularly in the field of international human rights law 2 . relaxation opens up the possibility and illuminates the discussion on the historical rise not only of new actors on the international stage (such as ngos), but also of other arenas of non-national jurisdiction. this so-called relaxation does not necessarily imply the disappearance of the autonomy and independence of one state with respect to others, or even the total and 2 this option results from the perception of the complexity of this process, i.e. the relationship between state sovereignty and human rights is simultaneously tense and complementary, often characterized by progress and setbacks. relativization of sovereignty gives an idea of linear progress of human rights with respect to sovereignty, while relaxation indicates a process characterized by changes and continuities, which is the point of view adopted here. moreover, the term relaxation seems to address the concurrent tensions and complementarities between human rights and the external aspects (considered synthetically as the horizontal relationship between the international actors and the rights to non-interference in internal affairs and to self-determination) and internal aspects (seen as the exclusive jurisdiction of a state over a given territory) of state sovereignty. matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 88 abrupt loss of the internal monopoly of exclusive jurisdiction of the state. but it does mean, based on the legitimacy of the international concern with human rights (approved in vienna), the rise and legitimacy of new actors and voices in the international system (which often call for greater ethical commitment and political responsibility from the state towards its citizens) and the emergence and strengthening of new arenas of jurisdiction that coexist with states, permitting the rise of individuals as international rights holders alongside states and a more porous relationship between global norms and local contexts. in order to examine these hypotheses, the article will begin by providing some background and an initial discussion of the vienna conference. this first part of the article presents the context of the immediate post-cold war period in which the conference was held. it also examines the preparatory process as well as the conference itself and its final document. the central hypothesis of the article is introduced towards the end of this first section, when the discussions on the universality of human rights that took place at the conference are presented. the second part consists of a theoretical discussion of the relationship between human rights and state sovereignty in the international system. for this, the debate between human rights academics in the field of international relations will be addressed based on the classification proposed by koerner. in the third and final part, the analysis will turn once again to the conference. based on the preceding theoretical discussion, it addresses some of the controversial points of the event related to the tension between human rights and state sovereignty. ii. background and initial discussion of the vienna conference. shortlived optimism: the preparatory process and the final document despite the universal declaration and the 1966 covenants (international covenant on civil and political rights and the international covenant on economic, social and cultural rights) adopted by the un and the 1 st world conference on human rights (teheran, 1968), human rights, as a topic on the international agenda, remained for the duration of the cold war in the shadow of the ideological conflict between the united states and the soviet union. in view of this, much of the international debate on human rights and their universalization was pervaded by this conflict, resulting in a dispute on the supposed hierarchy between the generations of human rights and frequent references to national security doctrines, based on state sovereignty, as an argument to refute international human rights standards. for this reason, after the end of the cold war and the triumph of western capitalism, the stage appeared to be set, according to trindade, for the building of a global consensus based on human rights, democracy and development (trindade 1993: p. 39). however, at this very time, according to alves (2000: p. 4), a conflict can be noted between “the reductionist western view that traced the root of all evil to underdeveloped countries and the reaction of the local cultures overstating nativism against the importing of western values.” the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 89 in order to defend their governments from western criticism, whether through the close ties of these governments with religion (such as iran) or through the sociocentric approach (such as china), some non-western countries, mostly asian, adopted culturalist positions. these positions predated the end of the cold war, but the ending of this conflict gave them greater visibility, while they also grew intellectually stronger even in western countries at the time (ness 1999: p. 4). this culturalism gained strength as a response to the universalism propagated by western powers in the post-cold war era. as such, the debate on asian values 3 became fundamental in strengthening this particularist anti-universalism 4 (alves 2000: p. 196). this debate gradually gained more ground, until it reached the floor of vienna conference, as habermas observed: as became evident at the vienna conference on human rights, a debate has got underway since the 1991 report of the singapore government on “shared values” and the 1993 bangkok declaration jointly signed by singapore, malaysia, taiwan and china. in this debate, the strategic statements of government representatives are in part allied with, and in part clash with, the contributions of oppositional and independent intellectuals (habermas 2001: p. 155). the inclusion of human rights on the international agenda may have aroused suspicions in some states that were concerned about guaranteeing their sovereignty, but it also started to unify an increasing number of actors around the topic. regional preparatory meetings were organized in order to pave the way for the drafting of a consensus document at the conference. however, instead of strengthening universality by maturing the discussion on human rights, they resulted in disagreements between the states, making the drafting of a final document all the more difficult 5 (boyle 1995: p. 81). 3 the main criticism of the “asian values” towards the western concept of human rights was focused on the individualist nature of these rights. asian countries also claimed a concept of human rights for themselves that was less individualistic and more communitarian, and that deserved equal priority in relation to the western concept. authors such as habermas have stated that this asian criticism of the west over the individualist nature of human rights is hollow. habermas considers it a rhetorical tool used by eastern states to cover up widespread human rights violations (habermas 2001: p. 157). however, eastern authors claim that the west cannot see in communitarianism and the eastern tradition the presence of an awareness of tolerance and liberty that, although distinct from western concepts, also exists (sen, 1997, p. 27). moreover, they claim that eastern resistance is due to the exaggeratedly legal and individual character of the western concept of human rights, which is always accompanied by hegemonic political behavior on the part of the west. 4 in this context of a decline in the initial optimism, one extremely important factor can be observed that was responsible for the trend: the exacerbation of nationalism. on this point, one can recall the resurgence, principally in western europe, of ultranationalist parties. it was in this context of change that the conference was prepared. the initial optimism during which the conference was proposed was replaced by a concern that the event may not even take place, and that if it did, it would represent a step backwards for human rights (riding 1993: p. 1). 5 the first was the regional meeting for africa (tunis, november 2-6, 1992). it was attended by 42 states and ngos and it produced the tunis declaration, which endorsed the universality of human rights matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 90 the three regional preparatory meetings, by emphasizing economic, social and cultural rights, the right to development and the cultural particularities of each region, made the building of a consensus at the vienna conference more complex, but also more plural. it is worth pointing out that the vienna declaration, its preamble and the programme of action are articulated parts of a single document, approved by consensus and known as the vienna declaration and programme of action. this document, besides endorsing various principles of human rights, grants legitimacy to international concern with human rights, supporting the hypothesis defended in this article. the comprehensiveness of the conference’s final document was responsible for consolidating the international importance of this topic in the post-cold war world 6 . in addition to approving the principle of the legitimacy of international concern with human rights, which underpins the dissemination of the topic on the global agenda, the conference and its final document also addressed other points that comprise the complex process of relaxation of state sovereignty: as already stated, the opening up of participation and the legitimacy of human rights ngos as intervening political agents, the encouraged emergence and/or strengthening of arenas of non-state jurisdiction (individual complaint systems in regional spheres and international courts, for example) and the creation of international non-intergovernmental human rights agencies, such as the office of the high commissioner for the human rights. however, both the process of elevating human rights on the global agenda and the process of relaxation of sovereignty, characterized by the points listed above, would be strengthened with the approval of the complex and fundamental principle of universality. independently of political, economic and cultural systems – which was compatible with the intentions of the conference – but alerted to the fact that the promotion and protection of human rights should take into account the traditional peculiarities of each society. the second was the regional meeting for latin america and the caribbean (san josé, costa rica, january 18-22, 1993). the highlight of this declaration was the emphasis given to the relationship between human rights, democracy and development. in addition to defending the principles of human rights, it also endorsed the creation of the un office of the high commissioner for human rights. the third and most anticipated of the three preparatory meetings was the regional meeting for asia (bangkok, march 29-april 2, 1993). the final document enshrined the relationship between human rights, democracy and development, as well as the indivisibility and universality of human rights, while also evoking asia’s diverse and rich cultures and traditions. it was this emphasis on national and regional particularities and the various historical, cultural and religious backgrounds that instigated the debate on the universality of human rights at the conference (alves, 2000, p. 13). 6 the declaration reveals a scope and complexity in the promotion and protection of human rights around the world. these characteristics would also feature in the programme of action. the main purpose of this programme was to formulate recommendations, based on the principles enshrined in the preamble and the declaration, for implementing human rights (alston, 1994, p. 387). the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 91 iii. universality at the vienna conference: a unifying controversy the debate on the universality of human rights was one of the most important aspects of the conference. however, unlike what usually occurs, the controversy surrounding this issue will not be analyzed here as a setback of the conference. instead, this article intends to examine how this issue was responsible for the involvement – even though very often not in agreement – of a plurality of actors in the international debate on human rights, elevating it to the status of a universal issue-area. according to dornelles (2004: p. 189), “the affirmation of the universality of human rights [...] was one of the most debated points in the preparation of the declaration.” according to alves, given the fierceness of the “cultural” disagreements that substituted the ideological confrontations of the cold war, the universality of human rights proclaimed in the declaration of 1948 would again be seriously contested during the preparatory process of the vienna conference and into the conference itself (alves 2001: p. 13). universality was obtained amidst controversial discussions that were marked by clashes of concepts on human rights. due consideration for this controversy, and the resulting clashes, is important because it shows how the discussion unified and involved delegations from a wide range of cultural origins, such as china, portugal, united states, singapore, dominican republic, iran and saudi arabia. such diversity of participants is sufficient to demonstrate the central hypothesis of this article. it is undeniable that the pronouncements were not consentient and that this discussion of principles had not been intended when the conference was planned. indeed, its very occurrence posed a threat to one of the pillars of human rights. however, this article attempts to look at the positive aspects of these events. the maturing of human rights as an ethical reference on the international level depends on the establishment of an ongoing and open dialogue between the widest variety of participants and concepts possible. only the explicit expression of views on human rights, even those critical of them, can promote their discussion on the international level 7 . [...] the idea that universal human rights exist, that they establish a minimum standard of dignity to which all individuals should have access, [...] appears to be gaining more ground on the international level, as attested, for example, by the adoption by the un, unanimously, of a new international convention [vienna conference] in the area of human rights, in 1993 (reis 2006: p. 25). 7 according to gómez (2006, p. 4), “the existence of the international human rights system is the conclusive proof of the significance and the importance achieved by the topic of human rights in the contemporary world. seen in broad historical perspective, this topic has never achieved such discursive legitimacy in terms of actors, spheres of action and values, nor such legal protection on a national, regional and global level as it has now.” matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 92 as such, it can be affirmed that the vienna conference constituted a landmark for human rights and was largely responsible for elevating human rights to the status of a reference of ethics and legitimacy on the international stage. iv. the complex relationship between human right and sovereignty in the international system when addressing human rights on the international level, a major debate has ensued on the sovereign status of the state. the issue of universality of human rights is complex not only in its cultural and philosophical dimension, but also in its political and juridical dimension, given the structural and historical character of westphalian sovereignty for the international system. the debate on universality is necessary in regard to the legal and political relationship between human rights and sovereignty because it illustrates the tension characteristic of this relationship. this tension is not only present in the institutional dimension, i.e. it does not only cause friction between international human rights mechanisms on the one hand and state-based jurisdictional mechanisms on the other. more importantly, it exposes the normative cracks that characterize the value provisions (state sovereignty on the one hand and universality of human rights on the other) that create social consensuses on the existence and persistence of these legal and political mechanisms (glanville 2013; levy; sznaider, 2006; reus-smit, 2001). according to bull (2002: p.152): “[...] carried to its logical extreme, the doctrine of human rights and duties under international law is subversive of the whole principle that mankind should be organized as a society of sovereign states.” similarly, gómez identifies the fundamental contradictions of the international human rights system: [...] on the one hand, the fact that it is based on the system of sovereign nation states, recognizing that states are the indispensable agents of the implementation and efficacy of human rights and, at the same time, one of the main violators of these rights; and, on the other hand, the fact that it has proven to be increasingly more limited and impotent in regulating, holding accountable and controlling the negative impacts of the complex and multifaceted structures and relations of global power that operate outside, above, below and through the states, even the strongest ones. (gómez 2006: p. 12). to lay the groundwork for the forthcoming empirical discussion, this second section will look at how the tension between human rights and sovereignty is addressed in the international relations literature. the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 93 v. debate on international human rights: sovereignty vs. global order an ambivalent process is noticeable, one that intensified in the post-cold war years, between the notion of human rights and the paradigm of state sovereignty that is the backbone of the westphalian interstate system. the two opposite poles of the spectrum are evident. on the one hand, there stands the principle of sovereignty with its many corollaries […] on the other, the notion that fundamental human rights should be respected. while the first principle is the most obvious expression and ultimate guarantee of a horizontally-organized community of equal and independent states, the second view represents the emergence of values and interests […] which deeply [cut] across traditional precepts of state sovereignty and non-interference in the internal affairs of other states (bianchi 1999: p. 260) the contemporary debate on human rights is based on two main themes: the first is characterized by the tension between sovereignty and global order, and the other involves the relationship between universalism and relativism. in this section, the analysis will focus on the first theme, in which there are two theoretical poles: globalism and statism 8 (koerner 2002: p. 90). the statists believe that states are the predominant actors in international relations. despite the existence of common values and norms on the international level, they claim that the state political order takes precedence over the global order. however, the statists are not skeptical of human rights. they consider the aspirations to universalize human rights defended by the globalists to be legitimate. but they view these aspirations only as moral parameters of conduct in the international system, not as effective constraints on national states. according to the statists: the international treaties and other mandatory pacts only create immediate obligations, or rather, agreements of limited duration and scope, given the impossibility of ensuring their effective enforcement by multilateral institutions. in short, there is no international law per se, since there is no global political entity with sufficient military capacity to force compliance with international norms by recalcitrant or disobedient states, thereby discouraging violations (koerner 2002: p. 97). hurrell warns of the dangers of enforcement, arguing that it can undermine the very idea of consent and self-imposition on which international regulation is based, generating a suspicion among states in committing to human rights documents for fear of intervention (hurrell 1999: p. 284). 8 despite the clear and recognized connection between the two themes, this choice is justified by the hypotheses of this article, which are not based on the idea itself of the universalization of human rights, but instead that the vienna conference elevated human rights to the status of a globally debated topic. matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 94 krasner considers state sovereignty to be a decisive condition for the international diffusion of human rights. as a result, he focuses his arguments on the willingness of states and their governments as a condition for the success of the international human rights system (krasner 1993: p. 140-141). for hurrell, the effectiveness of international human rights law is associated with its incorporation into national legislations. international norms need to be minimally compatible with state norms. based on this, international human rights law has power only as a source of international law (hurrell 1993: p. 50). generally speaking, statism conditions the effectiveness of international cooperation arrangements to acceptance by the state. in other words, international human rights laws are only binding when they are included in the national constitution as fundamental rights (koerner 2002: p. 98). it can be said, therefore, that for statism the interpretation and implementation of human rights are functions of national political systems (and not international or transnational systems, as globalism advocates). donnelly considers the long-term effectiveness of human rights treaties to be unviable, since there is no global political entity with sufficient power to force compliance and punish violations. according to him, human rights are moral rights whose implementation is linked to the almost exclusive purview of the states (donnelly 1999: p. 87). the global human rights regime is largely a system of national implementation of international human rights norms. [...] international human rights policies are (at most) one part of national foreign policies, which all states consider to be driven primarily by the pursuit of the national interest (donnelly 2000: p. 320). however, according to donnelly, human rights, unlike what the realists claim, have an impact and weight, particularly in the post-cold war era, as an interest, even though very often not a priority interest, and as a reference language of international legitimacy. the fact that an interest is limited and has a limited effect does not disqualify it as an interest. and albeit marginally, this interest can be taken into consideration and influence the decision-making process or the formulation of a country’s foreign policy (donnelly 2000: p. 310). globalism, meanwhile, is generally characterized by the predominance of the global order, which has been developing since 1945, over all others; i.e. that its norms are superior to states. it believes in the capacity to transform the interstate system by strengthening this global order (archibugi; held; köhler 1998: p. 2). for this position [globalism], the changes in international policy since the end of the second world war point towards the formation of a truly global order. [...] [globalists] have in common the proposal to strengthen the global order, and, to this end, they presume that it is possible to transform the current hierarchical and fragmentary interstate system, where strategic relations prevail between self-interested state agents, into a more stable, integrated and the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 95 democratic order that encourages cooperation, based on consensual norms and values (koerner 2002: p. 92). according to koerner (2002: p. 93), for globalism “international law should acquire the status of global constitutional law, with human rights as its charter of fundamental rights. national law is legitimate only if compatible with the rules of international law.” held and archibugi argue that, as a result of the globalization process in the post-cold war world, the policies of one country can directly or indirectly affect people in other countries, even though they had no say in these decisions. as such, they claim, although from the state’s point of view the decision was taken democratically, from a cosmopolitan viewpoint, it creates a democratic deficit. hence the need for an international system universally pervaded by human rights, which considers individuals, and not states, as the primary subjects of the system. archibugi proposes that the state paradigm should be articulated and complemented by more flexible frameworks based on the rights of the global citizen, freed from territorial restrictions: if some global questions are to be handled according to democratic criteria, there must be political representation for citizens in global affairs, independently and autonomously of their political representation in domestic affairs. the unit should be the individual, although the mechanisms for participation and representation may vary according to the nature and scope of the issues discussed (archibugi 1998: p. 212. emphasis added). held defends the creation of new political constituencies, either larger or smaller than the nation-state, depending on the issue at stake. he proposes a model in which the people can enjoy a sense of membership in diverse communities and exercise it in various forms of political participation. people can enjoy membership in the diverse communities which significantly affect them and, accordingly, access to a variety of forms of political participation. citizenship would be extended, in principle, to membership in all cross-cutting political communities, from the local to the global (held 1995: p. 272). making similar arguments, but based on law and not political science, ferrajoli (2007) defends the normative project of global constitutionalism. the project of ferrajoli is directly associated with the defense of guarantees and elements that transcend strictly national boundaries. the human rights documents produced by the un, including the vienna declaration and programme of action, would unleash a process through which sovereignty would stop being an unquestionable authorization and would start to be determined by two fundamental rules: the imperative of peace and the guarantee of human rights. given the existence, on the normative level, of these elements that seek to transcend national-based sovereignty, the rise of individuals and matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 96 groups of people, in addition to states, as subjects of international law becomes a logically plausible possibility in ferrajoli’s project of global constitutionalism 9 . the globalist project of ferrajoli (2005) defends a true rupture with the community concept that underpins national sovereignty. he claims a constitution does not function as a representation of the common will of the people, but instead to guarantee everyone’s rights, even in the face of the popular will. therefore, the constitution would not be based on the consent of the majority, but on the equality of everyone in relation to the liberties and social rights. according to ferrajoli, in an argument similar to the project of constitutional patriotism of habermas (1996), the bonds of collective identity should be founded based on these individual and social guarantees and not on cultural bonds that produce exclusions and intolerances, such as ethnic, national, religious and linguistic identities. obviously, ferrajoli recognizes the political and practical difficulties of his project of global constitutionalism, since it depends on the consent and willingness of international powers. nevertheless, this does not stop him from recognizing in human rights and in their international institutionalization a manifestation of an embryonic global constitution, particularly on the value level 10 . ferrajoli, in fact, claims that the solution found for the tension between sovereignty and law on the internal level, i.e. the constitutional state, should also be applied to the conflict between sovereignty and external law, with the inclusion on a world level of the same guarantees and fundamental rights as the constitutions of states, in other words a global constitutionalism. cosmopolitan arguments do not discard the state (and sovereignty) as a legitimate sphere. but they do advocate that in cases when the state is insufficient to assure a democratic functioning of relations, other autonomous and independent agencies should act, legitimized by the universal human rights of global citizenship and without any kind of constraint from the state structure. according to linklater (2007: p. 107), “in the new international environment it is both possible and desirable to realize higher levels of universality and diversity that 9 canotilho (2008) also addresses the idea of global constitutionalism. according to him, the idea is supported by three pillars: the state/people relations (not the horizontal relations between states, but between the populations of states) as a basis for the legal and political system; the rise, through international declarations and documents, of an international jus cogens that extracts its legitimacy from universal values, principles and rules; and human dignity as a condition of all constitutionalism. it is in this regard, therefore, that canotilho views the transformation of international law as a benchmark for the validity of national constitutions, i.e. having the rules of international jus cogens as a parameter for the validity of national constitutional provisions. 10 ferrajoli views citizenship, based on national sovereignty, as “[...] the last pre-modern relic of inequality by status” (ferrajoli 2001: p. 323). given this context of tensions between global human rights violations and the apparatuses of national-based sovereignty, ferrajoli (2000) argues that the rights available today only to national citizens – the right to housing and the right of movement in countries considered privileged – should be transformed into rights for all people. the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 97 break with the surplus social constraints of the ‘westphalian era’.” linklater, and globalism more generally, directly link the topic of cosmopolitan citizenship to the topic of universalization of human rights and the achievement of a fairer global order. currently, one of the main controversies on this issue involves the matter of socalled global constitutionalism, described above. despite increasingly more frequent discussions on this matter (fassbender 1998; 2007; bogdandy 2006; brunkhorst 2002; 2008), there is a good deal of reticence among authors who do not view a global constitution or a global harmonization of the legal traditions and jurisdictions as either desirable or beneficial 11 (berman 2007). on this point, i tend to agree with seyla benhabib (2009), a prominent defender of the cosmopolitan project. criticisms of the globalist viewpoints, including those made by statist authors, seem to ignore the jurisgenerativity of law and, in particular, the power of the most prominent cosmopolitan norms – human rights – to empower local movements. it does not seem to me that human rights norms work against the growth of democracy, as some authors such as walzer, skinner, sandel and nagel seem to fear. according to nagel (2005), for example, the nation-state is a political structure that is indispensable, since it is from this structure, he says, that issues of justice arise. this is why he claims that international law is nothing more than a quasi-contractual commitment that sovereign entities adhere to voluntarily 12 . in other words, the citizens of one nation have no duty to foreigners, except for those resulting from the moral obligation of humanity. [...] sovereign states are not merely instruments for realizing the preinstitutional value of justice among human beings. instead, their existence is precisely what gives the value of justice its application, by putting the fellow citizens of a sovereign state into a relation that they don't have with the rest of humanity, an institutional relation which must be evaluated by the special standards of fairness and equality that fill out the content of justice (nagel 2005: p. 120). what nagel overlooks, like nearly all the statists, is that human rights are not allocated only in the moral sphere, but also in the legal sphere, making it binding on the state to implement them (archibugi 2008). nevertheless, this moral sphere, of universal appeal, does not propose to be outside the circumscribed legal dimension, but it does propose to be superior and, for this reason, it becomes a normative (and questioning) 11 this “sovereignist” posture can be divided into two types of visions: nationalist and democratic. the nationalist camp places legitimacy in the self-determination of the people, considered a homogenous entity (an ethos), whose law expresses and binds its collective will. the democratic variant affirms that laws may only be considered legitimate if the people they are directed at consider themselves both the authors and subjects of these laws. therefore, for this democratic camp, laws do not express nor do they have to express the collective will of a people. more important than this is for there to be clear and recognized rules and procedures on the production, application and limitation of these laws (nagel 2005: skinner 2008; walzer 1983; sandel 1996). 12 authors such as cohen and sabel (2006), pogge (2004; 2007) and benhabib (2004) disagree with this exclusively moral view of nagel on human rights and international law. matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 98 force for the emergence of other material bodies that can participate in the process of implementing these rights. by ignoring the social movements, of which human rights ngos are an important part, the statist literature is overly reliant on state actors as agents of democratic change. since the adoption of the universal declaration of human rights, in 1948, and reinforced by the vienna declaration and programme of action, in 1993, it can be argued that global civil society has entered a transition period from international norms to cosmopolitan justice norms. this is particularly visible with human rights norms, since they have the unique feature of limiting the sovereignty of states and their representatives, shaming them into treating their citizens and others residing in their territory in accordance with international human rights standards. benhabib takes a position in defense of legal cosmopolitanism, a defining feature of the globalists, and, as such, considers each human being to be entitled to basic human rights. her argument is that the critics of the cosmopolitan viewpoint see the international legal order as a weak command structure and they ignore the “jurisgenerative” power of cosmopolitan norms. “jurisgenerativity” may be defined as the capacity of the law to create a normative environment of meanings that can frequently escape the traditional legislative process. this means that laws acquire meanings as they are interpreted in a context of meanings about which the laws themselves have no control. and there is no rule with interpretation, i.e. rules can only be followed as they are interpreted. moreover, no rule can control the varieties of interpretations possible within the different hermeneutic contexts. “jurisgenerativity” does not ignore the “legal” origin of the legitimacy, but sheds light on the interpretive dimension as a source of legitimacy of the rule. in short, “jurisgenerativity” works on the interrelation between the legal and non-legal origins of normativity. law's normativity does not consist in its grounds of formal validity, that is its legality alone, although this is crucial. law can also structure an extralegal normative universe by developing new vocabularies for public claim making, by encouraging new forms of subjectivity to engage with the public sphere, and by interjecting existing relations of power with anticipations of justice to come (benhabib 2009: p. 696). i argue, therefore, that norms (especially human rights norms) are more than just means of domination or forms of coercion. norms involve the anticipation of justice and, even if this justice is never served, it is always in this sense that norms are identified. the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 99 what the critics of cosmopolitan projects and globalist concepts often overlook is precisely the potential of international human rights norms to create a new repertoire for social demands and open new mobilization channels for civil society actors that join the transnational articulation networks. this is why, for example, as will be seen later, the participation of ngos at the vienna conference was paradigmatic. “jurisgenerativity”, since it includes the interpretive dimension, does not disregard the need for local mediation of international human rights norms. the idea is precisely that through iterations, interpretations and articulations, international human rights norms are not imposed by elites, but integrated. the mandate of one of the main concrete results of the vienna conference, the ohchr, addresses precisely this tenuous line of mediation between global and local, inspired by the conception of universality approved in vienna. globalists, therefore, view international human rights law as mandatory. as a result, their theoretical arguments are meant to strengthen multilateral institutions, since this would reinforce the mandatory status they support. bearing in mind this and also the intent to enhance the consensus on the realization of human rights, globalism is a strong advocate of global conferences, such as the vienna conference, and in particular the consensual development of action plans (bohman; lutz-bachmann 1997: p. 151). this brief exposition of the arguments of statists and globalists is sufficient to demonstrate two things. first, that the tension between human rights and state sovereignty really is an extremely complex problem in the theoretical field. second, considering that this theoretical complexity both reflects and is a reflection of the empirical condition, it is necessary to analyze some points in which this tension can be observed during the vienna conference. despite a series of major setbacks and recognizing that the state still has primary responsibility for the implementation of the norms of the international human rights system, my claim is that the vienna conference and the social processes unleashed by it, i.e. the vienna conference considered as a critical moment, as the historical institutionalists would say, reinforced trends that until then were dormant on the international level, held back in large part by the forces of the cold war and by the low level of institutional maturity of the international human rights system. in this regard, although a long way from the full project idealized by the cosmopolitans, the vienna conference appears to have historically and institutionally strengthened normative processes that definitively challenged the exclusive supremacy of the state. these challenges paved the way for non-national human rights projects and mechanisms (such as the regional protection systems), the rise of non-state political actors that are less dependent on the forces of intergovernmental relations (such as human rights ngos), the emergence of international human rights bodies (such as the ohchr), the possibility of submitting the human rights performances of governments to international scrutiny (such as the emergence and strengthening of the national human rights institutions and the un special rapporteurs) and the rise of the individual as the subject of international law (with the different individual complaint procedures). matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 100 vi. manifestations of tension in the vienna conference after this presentation of the conference, the discussions of universality and the theoretical analysis, it is clear that the tension between human rights and state sovereignty is structural when we consider human rights in the international system. that said, and to demonstrate the hypothesis that the vienna conference was largely responsible for the intensification of the complex process of relaxation of state sovereignty that began after the second world war, this section will discuss some specific points of the event pertaining to the tension between human rights and state sovereignty. the first point that illustrates this tension at the conference refers to the creation of an international court for human rights. this point, among the points to be analyzed here, is the one that most clearly demonstrates the resistance of the paradigm of state sovereignty to human rights. however, it can also be noted that the conference, although not immediately, influenced the process of relaxation of state sovereignty. this proposal was put forward in the preparatory stage of the event. despite the impact, it was mentioned only a few times by a small number of delegations. nevertheless, it acquired widespread support among ngos and was given broad exposure in the media. there was no initial euphoria by states to accept this proposal, since such a court – with a permanent and supranational status on the global stage – would represent a strengthening of the international human rights system and a challenge to the sovereignty of states what the programme of action achieved, in its paragraph 92, was to encourage the proper un authority, in this case international law commission, to continue its work on an international criminal court, since the commission had already been preparing a draft code of crimes against the peace and security of mankind, which was not specifically geared towards human rights. this point demonstrates the non-immediate progress achieved by the conference, since after the conclusion of the aforementioned code by the international law commission, the international criminal court (icc), according to alves (2006, p. 24) “[...] an extraordinarily innovative institution in the system of international relations still based on the concept of state sovereignty”, was finally approved with few dissenting votes at the rome conference of 1998. in other words, the importance of the vienna conference lies not only in the event’s own accomplishments, but also in the issues it raised that would be followed through in the future. the emergence of the icc, which has one of its origins in the boost given by the vienna conference, shows how this event of 1993 contributed to the complex and ambivalent process of relaxation of sovereignty in favor of human rights. this can be argued given that the icc is a permanent court with supranational status to handle crimes against humanity, i.e. its very existence challenges, to some degree, the prerogative of exclusive jurisdiction of a state and its government over a given territory the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 101 and population. the consolidation of this challenge is only legitimate because the icc works with crimes against humanity, an agenda with high international appeal and moral acceptance that belongs to the dimension of serious human rights violations. another discussion that occurred during the preparatory process of the conference, and one that is closely associated with the tension between state sovereignty and human rights, involved the participation of ngos. the western delegations were in favor of allowing their presence. however, the non-western delegations, along with those from the third world, were highly suspicious, since ngos were not a representative part of their societies at that time. as such, they viewed these organizations as instruments of ideological propagation by western powers. by the end of the preparatory process, however, the participation of ngos ended up being approved. the second session of the preparatory process had the participation of 77 ngos (with consultative status with ecosoc). however, it left the matter of their participation in the regional preparatory meetings pending until the subsequent sessions 13 (trindade, 1993, p. 6). the third session recommended that the un secretary-general invite different classes of ngos to the regional preparatory meetings. furthermore, it approved the provisional regulation of the world conference on human rights, which authorized the attendance of ngos as observers in the event. the authorized participation of ngos in vienna, albeit only as observers, resulted in greater dialogue between governments and civil society for the duration of the event. however, it also began a trend, together with the earth summit of 1992, that would continue throughout all the major global conferences of the 1990s. the preamble to the final document of the vienna conference was what enshrined the legitimacy of the participation of ngos and other new non-state actors on the international stage, even encouraging such participation. the declaration emphasized the importance of ngos, their right to carry out their activities, and their dialogue with states. the programme of action also recognized, in relation to the right to development, the vital cooperation between governments and ngos for making progress on this right. by supporting ngos, there is a clear intent by the vienna conference to promote a cohesive international movement for the purpose of relaxing the paradigm of state sovereignty 14 . 13 on this point, it is important to emphasize one event that illustrates the participation of ngos in vienna. just days before the regional meeting for asia, a meeting of human rights ngos was also held in bangkok. this meeting was underpinned by a different vision than its intergovernmental equivalent, and it expressly endorsed, for example, the protection of women, participative democracy and the universal ratification of human rights treaties. in the words of trindade (1993: p. 21), “the bangkok ngo declaration went much further than its intergovernmental equivalent (the bangkok declaration itself), particularly concerning the universality of human rights and the matter of cultural diversity.” 14 in addition to their strong support for the creation of the office of the high commissioner for human rights, ngos also influenced the matter of discrimination against women. the women’s group was one of the most supported groups during the event and, as such, one of the groups that received the largest number of references in the final document. this was due to the scale of the engagement by women’s matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 102 the end of the cold war, the rise of the topic of human rights and the occurrence of the vienna conference, in 1993, created an opportunity – still conditional on state sovereignty – for a group of actors that until then had little exposure to the international system, namely ngos, to make their voices heard. this phenomenon demonstrates the hypothesis, defended here, that the vienna conference was a major contributor to the process of relaxation (but not suppression) of state sovereignty in the post-cold war years. it can be argued that this emergence of international ngos during the vienna conference is in line with the two processes that make up the two hypotheses presented in this article. the relationship between the structural process of the rise of human rights on the international agenda and the consolidation of ngos as political agents is, as the constructivists of international relations say, one of co-constitution. ngos, which work on various levels (local, regional and international) for the realization of international human rights standards, maintain and disseminate these standards on the agendas of numerous states, and they also draw attention to situations that are being ignored by the international community. meanwhile, the process of the rise of human rights as an internationally discussed topic, in which ngos play an important but not exclusive role, empowers and legitimizes this form of social organization and its participation in multilateral forums. similarly, the consolidation of human rights ngos as international political agents after the vienna conference is also related to the process of relaxation of state sovereignty. the international rise of human rights ngos represents the appearance of voices in a setting that was previously all but monopolized by diplomatic voices. moreover, international human rights ngos work normatively on the defense of human rights of individuals as subjects belonging to humanity and not necessarily as national individuals, an important substratum for the affirmation of state sovereignty. human rights ngos contribute to the process of relaxation of sovereignty in that they work in networks that are not bound by national borders, i.e. they engage in transnational networks and coalitions, even when operating in regional arenas, such as the regional human rights protection systems 15 . they also promote and express the so-called rights ngos, which, besides being numerous, steered the discussions and exerted significant pressure. in the words of chen (1996: p. 141), “at the 1993 vienna conference on human rights, the international women’s movement, brilliantly organized by charlotte bunch and her colleagues, forced the official delegates to recognize that women’s rights were human rights.” 15 both the vienna declaration itself and the programme of action emphasize the importance of the regional protection systems, where the right to individual complaints is most consolidated. article 37 of the declaration states: “regional arrangements play a fundamental role in promoting and protecting human rights. they should reinforce universal human rights standards, as contained in international human rights instruments, and their protection. the world conference on human rights endorses efforts under way to strengthen these arrangements and to increase their effectiveness, while at the same time stressing the importance of cooperation with the united nations human rights activities. the world conference on human rights reiterates the need to consider the possibility of establishing regional and subregional arrangements for the promotion and protection of human rights where they do not already the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 103 “global” public opinion. finally, and perhaps most importantly, human rights ngos, whose international legitimacy and consolidation has in the vienna conference one of its main triggers, have become agencies that are available to citizens. the citizens of states may seek out these ngos to shame the offending state into remedying the abuses and also to urge other states, through their networking activities, to interfere and press for a resolution to the situation. one of the most controversial topics, but also one that advanced the most in this process, was the proposal to create the office of the high commissioner for human rights (ohchr). this topic had been debated since the 1940s in the un subcommission on the prevention of discrimination and protection of minorities and the un commission on human rights, but it had never been approved. the office, according to reis (2004: p. 4), “was created [...] for the purpose of coordinating the actions of the various different un agencies that address the topic of human rights.” this proposal reached the vienna conference through a suggestion by amnesty international, which again demonstrates the importance of the participation of ngos in vienna. during the preparatory process, the proposal was welcomed by many delegations that saw a need for greater coordination on the subject of human rights (gaer; broecker 2014). however, it was also opposed by several other delegations, since they envisaged a potential for intrusive interference in their sovereignties. according to alves (2000: p. 23-24), “for the opponents of the idea, the figure of a high commissioner appears to have been viewed as a mechanism to be ‘remotely controlled’ by the west, developed for the exclusive control of civil and political rights in the third world, and a threat to national sovereignties [...]”. the lack of consensus on this point lasted until the end of the event. the full session of the conference was forced to refer the proposal to the general assembly, under priority status, in order to satisfy both the supporters of the proposal and its opponents. as a result, the proposal ended up being approved by consensus in new york, in the general assembly, later in 1993. the consensus was obtained after it was perceived, during the negotiations, that the creation of the office would not constitute a threat to state sovereignty. despite not posing a material threat per se to sovereignty, since one of its focuses is technical cooperation, the ohchr may also be viewed as one of the manifestations of relaxation of sovereignty unleashed by the vienna conference and its environment. this can be argued for a number of reasons. first, because several attempts to create this office were made unsuccessfully throughout the cold war. the end of the bipolar conflict and the construction of a more favorable multilateral environment like the vienna conference were crucial for this difficult-to-approve exist.” paragraph 76 of the programme of action stresses: “the world conference on human rights recommends that more resources be made available for the strengthening or the establishment of regional arrangements for the promotion and protection of human rights under the programmes of advisory services and technical assistance of the centre for human rights.” matheus de carvalho hernandez the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 104 proposal to achieve consensus in 1993. second, because this office, among its many unique features, is not an intergovernmental agency (like the former commission on human rights or the current human rights council are), which makes it more dynamic and independent. it is worth pointing out that the high commissioner for human rights has the same rank as a un under-secretary general and has primary responsibility for all the un’s human rights initiatives and activities. this empowerment resulting from this unique condition of quasi-independence permits this office to take actions and make statements without the need for prior authorization from the un’s intergovernmental political bodies and gives broad leeway to human rights ngos. finally, the ohchr contributes to the process of relaxation of sovereignty in that it has national and regional offices around the world, which insist on compliance by countries to international human rights standards and publicly expose conduct by national governments that deviate from these standards. the installation of these offices involves negotiations with national governments over the local mandate of the institution. and, with varying degrees, the exercise of this mandate implies some ceding of sovereignty. in other words, the emergence of the ohchr and its local offices, enabled by the political and normative environment of the internationally elevated theme of the vienna conference, is also part of the process of relaxation of sovereignty. vii. final considerations as this article has demonstrated, the vienna conference of 1993 managed to universalize the debate on human rights. but as the presentation of the discussions on universality in vienna attempted to show, it is perhaps an exaggeration to say that the conference managed to universalize human rights in the international system. however, these same discussions do demonstrate the success of the conference in universalizing the debate on human rights, by involving a wide range of actors and effectively making the topic a universal issue-area in post-cold war international relations. the universalization of the debate is not just about the diffusion of the topic among the states, but also about the rise and inclusion of new actors in the international discussions on human right, namely ngos and individuals. the other hypothesis, related to the first, has also been demonstrated over the course of this article. the vienna conference, primarily by universalizing the debate, authorizing participation by non-state actors, encouraging the emergence of and strengthening regional protection systems and international non-intergovernmental agencies, and legitimizing international concern, raised the status of the topic of human rights, which are not, in essence, totally aligned with the concept of state sovereignty. therefore, by making these advances, the vienna conference intensified the process of relaxation of state sovereignty that began after the second world war. on the other hand, as has already been stated, the conference relaxed, but did not suppress in any way, the concept of state sovereignty existing in the international system. the empirical discussions addressed here demonstrate this assertion, since the state is still the primary legal and political organization responsible for the the rise of human rights issue in the post-cold war world the age of human rights journal, 2 (june 2014) pp. 86-108 issn: 2340-9592 105 implementation of human rights. in addition, the theoretical discussion of statists and globalists, exposed in the second section, demonstrates the permanence of this structural tension and its complexity. currently, and in no small measure due to the vienna conference, not only does sovereignty condition human rights, but the inverse also occurs. human rights, since they are based on the belief that all individuals are equal and, as such, have equal intrinsic value, pose a direct challenge to the paradigm of state sovereignty. all domestic or international action, even against human rights, must now be justified to their supporters. this shows how the introduction of human rights as an ethical reference for international relations is part of a trend of challenging the arbitrary exercise of state sovereignty, which demonstrates the magnitude of the vienna conference. it is undeniable that the 1990s – and extending to the present day, despite the setbacks of 9/11 – saw a change in sovereignty bought about by so-called global issues. among these issues, human rights were largely responsible for this process which, catalyzed by the vienna conference, advanced the legitimacy of international concern with human rights and ensured that the topic was raised to the status of an ethical reference for contemporary international relations. these days, the state needs human rights as an element of political legitimacy or international morality. and this has resulted from the elevation, on which the vienna conference had a sizable influence, of human rights to the status of a universal issue-area. as a result of this debate, it is clear that the international human rights norms are important for two reasons. first, because as part of the foundation of the international system, human rights norms reveal that the international setting is not only comprised of facticity, but also legitimacy, normativity and validity. second, because they demonstrate a form of compatibility between the national and the international or supranational sphere that does not automatically and necessarily imply the subordination of the former to the latter. the cosmopolitan projects of habermas (2008), for example, just like benhabib, were predicated on individuals and states, i.e. the possibility of non-hierarchical interaction between international human rights norms and the loyalty of citizens to their respective nations, the value base of sovereignty. placing the importance of international human rights mechanisms and norms only in the dimension of effectiveness and facticity, although an ongoing political need is inescapable, can obscure the importance of their normative dimension. and neglecting this dimension is to ignore the formation of an intersubjective consensus disseminated around human rights in the post-cold war world. the vienna 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(1983). spheres of justice: a defense of pluralism and equality. new york: basic books. the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap felipe gómez isa1 abstract: in august 2001, the inter-american court of human rights reached a landmark and pioneering decision in the field of international indigenous peoples’ human rights law. however, the case did not end there, but entered a new phase for which neither the community nor their advisors were fully prepared: the implementation phase of the judgment. our analysis has tried to shed light on the vicissitudes of this long, complex and as yet unfinished process, which is one of the most innovative aspects of this paper. this is particularly relevant given the absence of systematic studies on the implementation processes of judicial decisions made by international bodies (such as the inter-american court) from the perspective of the victims themselves, and of the stakeholders involved in the case. keywords: international law; human rights; indigenous peoples’ rights; inter-american court of human rights; awas tingni community summary: i. introduction; ii. some methodological considerations; iii. the difficult process of implementing the judgement; iii.1. the joint commissions for the implementation of the judgment; iii.2. the adoption of provisional measures by the inter-american court; iii.3. law 445 (2003); iii.4. titling request by the awas tingni community; iii.5. dispute settlement stage; iii.6. the agreement between the sandinista national liberation front (frente sandinista de liberación nacional (flsn)) and yatama; iii.7. measuring and marking out stage; iii.8. titling stage; iii.9. title clearance stage; iv. conclusions. i. introduction one of the most outstanding features in the field of human rights in recent decades has been the enormous importance acquired by indigenous peoples' rights, both nationally and internationally. these rights have received a degree of legal and jurisprudential recognition that until very recently would have been unthinkable. it is now time to make an honest appraisal of the benefits of these developments and their more than obvious limitations from the perspective of the indigenous peoples themselves. indigenous peoples continue to face situations of vulnerability and poverty in most of the countries where they live, as well as a growing threat to their lands, territories and natural resources. it is this contrast between legal developments and the daily situations encountered by indigenous peoples that rodolfo stavenhagen (2006), 1 pedro arrupe institute of human rights, university of deusto, bilbao, spain (felipe.gomez@deusto.es). the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 67 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap the former united nations special rapporteur on the situation of the human rights of indigenous peoples, called “the implementation gap”. indigenous rights pose a serious challenge to some of the basic theoretical foundations of human rights. indigenous peoples have repeatedly demanded that their collective rights be recognised. these rights have been alien to the process of the emergence and recognition of human rights in western legal culture and politics. the multiculturalism that indigenous peoples advocate in addressing human rights clearly challenges a form of human rights that has so far been essentially mono-cultural. indigenous peoples do not want to maintain their role as mere objects for protection in terms of existing human rights; rather, they want to see the same concept of human rights enhanced by indigenous world views (gómez isa, 2014: 723-756).2 this is one of the most innovative aspects of the ruling of the inter-american court of human rights in the awas tingni case, as it recognised that the interpretation of the right to property recognised in article 21 of the american convention on human rights should include the communal forms of property present in indigenous communities. this has caused a kind of indigenisation of the right to property by the inter-american court, as shall be seen. this paper offers a detailed analysis of all the elements involved in the realisation by the awas tingni indigenous community that their problem could be framed in terms of human rights. once they became aware that their rights had been violated, the community and their legal team made the decision to prosecute the case, first before the national courts and then, in the absence of any effective response, before the protection bodies of the inter-american human rights system. in august 2001, the inter-american court of human rights reached a landmark and pioneering decision in the field of international indigenous peoples’ human rights law. however, the case did not end there, but entered a new phase for which neither the community nor their advisors were fully prepared: the implementation phase of the judgment. our analysis has tried to shed light on the vicissitudes of this long, complex and as yet unfinished process, which is one of the most innovative aspects of this study. this is particularly relevant given the absence of systematic studies on the implementation processes of judicial decisions made by international bodies (such as the inter-american court) from the perspective of the victims themselves, and of the stakeholders involved in the case. most of the analyses of the effectiveness of the rulings and decisions made by international organs for the protection of human rights warn about an “implementation crisis” (baluarte and de vos, 2010: 11), which may undermine the very legitimacy of 2 it is interesting to observe how the indigenous movement has “appropriated” the language of human rights in articulating their local claims. by using the terminology and conceptual framework of localising human rights, indigenous peoples have localised global standards to address their main concerns (morgan, 2004: 481-500). the latest development in this interesting, although sometimes contradictory process, was the adoption by the united nations general assembly of the declaration on the rights of indigenous peoples on september 13, 2007, after a long and complicated journey in which the indigenous peoples themselves took a leading role, supported by ngos engaged in human rights and the defence of indigenous rights, as well as by some transnational networks. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 68 felipe gómez isa such mechanisms. this crisis refers to the scandalously low implementation rates of the decisions of both judicial and quasi-judicial international bodies (the united nations committees created by international human rights treaties, for example). states remain reluctant to comply with the judgments and decisions of international organisations, especially when those decisions address issues that those states consider to be sensitive, such as the access of indigenous peoples to land and natural resources. in addition, the implementation crisis is related to a purely quantitative and formal approach to data about the implementation that has prevailed so far, without considering other more intangible effects that decisions and judgments may have. these intangible effects3 may relate to aspects as diverse as: changes in the way public opinion and the institutions involved perceive a given issue that gave rise to a judicial decision or judgment; their impact on the design of certain public policies; and the victims’ feeling that a particular decision serves to recognise an injustice. these can result in changes in their relationship with the state; in other words, it can become a source of empowerment and a means to recognise their status as subjects of rights. my paper therefore seeks to fill a gap in the rare studies on implementation conducted to date4. the effectiveness of the international system for the protection of indigenous peoples’ human rights rests on a complex process ranging from the local to the global. it depends on a whole set of both legal and non-legal factors and circumstances that need to be understood and analysed. the defence of human rights must be examined as a process involving actors as varied as the victims themselves and their representatives, lawyers, public institutions, non-governmental organisations, and international financial institutions such as the world bank and the international monetary fund, as well as transnational networks5, etc. this study deals with the multidimensional scope of this process, including the conditions and circumstances which can promote the success of a strategy to defend human rights in an increasingly globalised world. ii. some methodological considerations given the nature of our study of the awas tingni case, the methodology employed has combined both quantitative and qualitative aspects. the latter have been essential in drawing meaningful conclusions about the process followed by the community itself in defence of their land rights. the research team visited nicaragua twice. this included managua, where the main government institutions are located, one visit to bilwi (the capital of the autonomous north atlantic region (raan) where the awas tingni community is located), and another visit to the community itself. the semi-structured interviews conducted with leaders and key community figures, as well 3 other authors have referred to these types of impacts and indirect as indirect, consequences, and symbolic effects (rodríguez-garavito and rodríguez franco, 2010: 18). 4 it must be acknowledged that there is increasing interest in this topic. see a very interesting study conducted at american university, washington (martín and rodríguez-pinzón, 2013). 5 the term transnational advocacy networks was coined by keck and sikkink (1998). the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 69 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap as with other relevant actors in the case, were essential in obtaining the information required to reach our conclusions. iii. the difficult process of implementing the judgement on august 31, 2001 the inter-american court of human rights made a historic decision concerning indigenous peoples’ rights to their lands and natural resources. the awas tingni case was not intended to end here, but to enter a new phase, namely the implementation stage. this has been deeply marred by difficulties, delays, and the lack of a clear political will on the part of the state to proceed with the demarcation and titling of the lands of the indigenous communities on the atlantic coast of nicaragua (mclean cornelio, 2005: 7). the problem is that the major actors in the cases themselves often fail to anticipate and prepare in advance for the implementation stage. the implementation of the judgment is such an important factor that it cannot be left to improvisation. as has been rightly emphasised, “specific mechanisms and additional resources are needed to strengthen the compliance policies of states, and the role of the very bodies in the inter-american human rights system” (martín beristain, 2009: 119). as stated in the court’s judgment, the state must, “adopt the legislative, administrative, and any other measures required to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores” (inter-american court of human rights, 2001: para. 164). in the specific case of the awas tingini community, the court granted the state 15 months to “carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the awas tingni community… with full participation by the community and taking into account its customary law, values, customs and mores” (ibid). from the very beginning it was seen that the implementation stage of the judgment would be fraught with obstacles and difficulties. as recognised by the community's lawyer, it was not until five months after the judgment had been issued that the government agreed to meet with the interamerican commission on human rights and the community’s representatives in order to take the first steps towards implementation (anaya and campbell, 2009: 143). in february 2002, representatives of the government and of the awas tingni met in the offices of the inter-american commission in washington for the government to deliver a $30,000 cheque for the legal costs and expenses (inter-american court of human rights, 2001: para. 169) incurred by the community members and their advisers during the domestic and international judicial proceedings. this was obviously one of the easiest steps to take, as it was merely a financial measure, while the implementation of the substantive aspects of the judgment would be much more complicated, as shall be seen below. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 70 felipe gómez isa iii.1. the joint commissions for the implementation of the judgment at a meeting held at the ministry of foreign affairs in managua in april 2002, a decision was made to create two joint commissions to ensure the implementation of the court's judgment (alvarado, 2007: 619). the membership of these commissions was quite diverse, as it was open to the participation of members of the awas tingni, their representatives and government delegates. the first of these joint commissions addressed compensation for immaterial damages suffered by the community. as specified by the court in this regard, “the state must invest, as reparation for the immaterial damages, in the course of 12 months, the total sum of us$ 50,000 (fifty thousand united states dollars) in works or services of collective interest for the benefit of the awas tingni community, by common agreement with the community and under the supervision of the inter-american commission” (inter-american court of human rights, 2001: para. 167). despite some in-depth discussions taking place about monetary reparations, this issue was resolved with relative ease, and an agreement between the community and the government was finally reached. the words of one of the major participants of these discussions are highly revealing: “what the state tried to do with the $ 50,000 reparations was to say that they wanted to put in latrines, a road ... things they had to do for any community, but which they had not actually done. they got to that point without the legal representative knowing and they said: ‘we are going to do this’, without the community knowing that they were talking about reparations. the state then said it already had an agreement with the community to use the $ 50,000 ... we said that was no good, it had to be agreed with the petitioners, the inter-american commission and the community. and so the hostel was proposed. also some sewing machines for women. there were some problems in implementing these things, but finally they were, and it has had a largely positive impact on the community”6. one of the most important aspects of the collective reparation measures ordered by the inter-american court is they are not to be confused with development policies that states have an obligation to carry out. as shown by james anaya’s statement, the original intention of the government was to pass off the reparations ordered by the inter-american court as overall development policies. the role of the community's advisers and its leaders was again crucial in avoiding the confusion the government's strategy intended. in this sense, “the community's capacity for analysis and negotiation was a key factor in avoiding political manipulation and providing measures that were truly compensatory in nature” (ibid). the most important part of these reparations was the construction of a hostel in bilwi for 80 students, which was inaugurated on 28 february, 2003 (alvarado, 2007: 619). this decision says a lot about the community and the value given to the education of the young mayangna, who cannot continue their studies in the community and have to move to bilwi. as noted by an elder of the awas tingni, “the community met and decided to do it, because the students needed accommodation”7. 6 interview with james anaya in martín beristain (2009: 401). 7 unfortunately, hurricane felix, which struck the atlantic coast of nicaragua on 4 september 2007, almost destroyed the entire hostel's roof. it has still not been rebuilt, although some students continue to use it. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 71 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap the second joint commission would face much greater challenges, as its objective was the planning and design of the process for the delimitation, demarcation and titling of the awas tingni territory. the most significant advances were in reaching a consensus on certain guiding principles for the delimitation, demarcation and titling process. these principles were: the state has sole responsibility for the process; the process should take into account indigenous customary law on patterns of community land use, and; the full participation of the representatives of the awas tingni in the process is to be respected. despite this modest progress on the thorniest issue involving the awas tingni case, it must be recognised that this second joint commission did not meet the targets it had set itself. this, to a large extent, “led to a further escalation of illegal third party activities on awas tingni territory” (alvarado, 2007: 620), one of the main problems that the community continues to face to this day. iii.2. the adoption of provisional measures by the inter-american court faced with this governmental impasse and the increased interference by third parties in the territory of the awas tingni, in july 2002 the community representatives requested that the court adopt some provisional measures8. as noted by the representatives in their request, “there is a need for provisional measures to be adopted to maintain the status quo of the community and to ensure compliance with the judgment of the court... to avoid immediate and irreparable damage resulting from the current and continuous activities of third parties who have established themselves in the territory of the community”9. in response to this request, on 6 september 2002 the inter-american court issued a resolution for provisional measures to be adopted. the court’s resolution required the state of nicaragua to adopt, “without delay, whatever measures are necessary to protect the use and enjoyment of property of lands belonging to the mayagna awas tingni community, and of natural resources existing on those lands”10. in particular, the court was concerned about the presence of third parties in the community’s territory. that is why the court required the state to take measures with a view to “avoiding immediate and irreparable damage resulting from the activities of third parties who have established themselves inside the territory of the community or who exploit the natural resources that exist within it”11. finally, the court required the state “to investigate the facts set forth in the claim that gave rise to the current measures, so as to discover and punish those responsible”12. this shows how the court tried to involve itself in the monitoring process for the implementation of the judgement adopted a year earlier. as shall be seen below, one of the most significant events with regard to the compliance with the court’s decision was the adoption of a specific legislative framework for the delimitation, demarcation and titling of indigenous lands 8 pursuant to article 63.2 of the american convention of human rights, “in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the court shall adopt such provisional measures as it deems pertinent in matters it has under consideration”. 9 order of the inter-american court of human rights of september 6, 2002, provisional measures requested by the representatives of the victims with respect to the republic of nicaragua, costa rica, 2003. 10 ibid. 11 ibid. 12 ibid. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 72 felipe gómez isa on the atlantic coast of nicaragua (anaya and campbell, 2009: 144). this had been an old demand of the civil society of the atlantic coast and indigenous peoples, and had been included among the measures ordered in the inter-american court of human rights’ judgment. iii.3. law 445 (2003) it has already been mentioned how, in the mid-1990s, spurred by the claim filed by the awas tingni before the inter-american commission and the pressures of the world bank, the nicaraguan government began to seek a solution to the problem of the lack of a legislative framework to regulate the delimitation, demarcation and titling of indigenous territories. in addition, there was a broad mobilisation of civil society and the institutions of the autonomous regions of the atlantic coast, which culminated in a bill that was presented to the national assembly in september 2000. its aim was to regulate the communal property rights of the indigenous peoples of the coast. this project did not have the approval of the government, which had not favoured a comprehensive solution to the problem of the indigenous lands on the caribbean coast. a law that specifically dealt with the demarcation and titling of indigenous lands was finally adopted as a consequence of a specific set of “political circumstances and opportunities for the coastal population’s demands at national level” (gonzález and figueroa, 2009: 332). it was within this difficult context “that the judgment of the interamerican court on the awas tingni case came into play, as a key factor that led to a complete restructuring of the system of indigenous communal property on the atlantic coast” (rodríguez-piñero, 2004: 223)13. this restructuring came hand in hand with the adoption of the law of communal property regime of the indigenous peoples and ethnic communities of the autonomous regions of the atlantic coast of nicaragua and bocay, coco, indio and maíz rivers (ley del régimen de propiedad comunal de los pueblos indígenas y comunidades étnicas de las regiones autónomas de la costa atlántica de nicaragua y de los ríos bocay, coco, indio y maíz) in december 2002, also known as law 445 (2003)14. it must be acknowledged that the process involved in the debate and subsequent adoption of law 445 was closely linked to the court’s judgement on the awas tingni case15, with this law being one of its most important 13 the political situation in nicaragua at that time also helped facilitate the adoption of law 445 (2003). as stated by luis rodríguez-piñero (2004: 228-229), “the impeachment and subsequent imprisonment of former president arnoldo alemán under serious allegations of corruption” was also a determining factor, since “alemán was the president of the national assembly up to that point, and the main obstacle to a law that directly threatened his network of economic and clientelist interests in the atlantic region”. in this new context, the sandinista parliamentary group became one of the main bastions of support for the bill, a project that was finally sanctioned by the liberal government of president bolaños in the light of the political pressure exerted by different political and social sectors. 14 la gaceta diario oficial, no. 16, 23 january 2003. 15 as noted by someone with a deep knowledge of the hidden details that led to the adoption of the law 445 mclean cornelio, 2004), “the awas tingni case played a key role in shaping the political situation that led to the approval of the new law on demarcation, law 445 (2003) ... the judgment of the court was one of the weapons in the hands of the atlantic coast indigenous movement in pressing for the law to be adopted”. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 73 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap consequences (open society, 2011: 20)16. it is therefore not surprising that the content of the law was clearly inspired by the parameters set by the judgment of the interamerican court on the delimitation, demarcation and titling of indigenous territories (wiggins, 2002: 18)17. after acknowledging in the preamble that “it is the ineludible commitment of the state of nicaragua to respond to the claim for the titling of the lands and territories of the indigenous peoples and ethnic communities of the former mosquitia”, law 445 (2003) established as one of its basic objectives “to guarantee the indigenous peoples and ethnic communities the full recognition of communal property ownership rights, the use, administration and management of traditional lands and their natural resources, through the demarcation and titling of the same”18. law 445 clearly recognised the collective ownership nature of the indigenous lands. as noted in article 29, “the rights and ownership over communal land belong collectively to the indigenous and ethnic communities”. the whole process of the demarcation and titling was based on a series of general principles and criteria established in the law itself.19 these principles were as follows: the full participation of the indigenous people “through their traditional authorities”20; “the will to focus and harmonise” the different parties involved in the demarcation and titling process21; the prevalence of the “historical and cultural possession exercised by the… community” to determine the area to be recognised22, and, finally, the search for peaceful solutions to any conflicts that may arise23. another important aspect in the process of the demarcation and titling of indigenous lands on the atlantic coast is its institutionalisation, since law 445 (2003) created two bodies that were to be key to the development of this process. these two bodies were the national demarcation and titling commission (comisión nacional de demarcación y titulación (conadeti))24, and the intersectorial commissions for demarcation and titling (comisiones intersectoriales de demarcación y titulación (cidt))25. in principle, the tasks of both bodies were clearly defined and differentiated. 16 as noted by maría luisa acosta, “law 445 (2003) was the most effective outcome of the judgment on the awas tingni case”. interview conducted in managua on 12 july 2011. 17 in fact, law 445 (2003) contains some quotations from the judgment of the inter-american court. for example, when article 44 of the law lists the functions of the demarcation and titling intersectorial commissions, (comisiones intersectoriales de demarcación y titulación(cidt)) it paraphrases operative paragraph no. 3 of the court’s judgment (para. 173). as stated in article 44.c, the function of the cidt is to “create an effective mechanism for the delimitation, demarcation and titling of the property of indigenous communities, in accordance with customary law, values, uses and mores”. 18 article 2.1. 19 one of the most systematic studies of law 445 (2003) is that by lilliam jarquín (2003: 6-18), who directly participated in its negotiation and discussion. see also alfred-cunningham (2011: 203-222). 20 article 40.a). 21 article 40.b). 22 article 40.c). 23 article 40.d). 24 article 41 of law 445 created the conadeti and its composition, while its functions are listed in article 43. 25 article 42 of law 445 provides for 3 inter-sectorial committees: one in the autonomous north atlantic region (región autónoma del atlántico norte (raan)), one in the autonomous south atlantic the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 74 felipe gómez isa whereas the conadeti was to engage in “eminently political and coordination work”, the inter-sectorial committees “were responsible for the technical aspects of demarcation on the ground” (rodríguez-piñero, 2004: 230). the process of demarcation and titling was carried out in five stages, as required by the law26: the first stage was the submission of the request by one or more communities27; this stage was to be followed by one involving the settlement of possible disputes with neighbouring communities or third parties28; once the conflicts had been settled, the measuring and marking out stage would begin29 which, once completed, would result in the titling stage30. the last stage was to involve the title clearance in relation to the third parties located within them31. despite the progress brought by the adoption of law 445 (2003) in modifying the indigenous land tenure system and further developing the autonomy in the atlantic coast of nicaragua, both the legislative and institutional framework for the process of the demarcation and titling of indigenous lands had systemic deficiencies and internal obstacles that have been very difficult to overcome (alvarado, 2007: 626). in addition to the strong political opposition by the central government, there have been continuous delays in the process, a lack of technical training of the personnel carrying out their duties in both the conadeti and the intersectorial committees, an absence of an adequate budget to carry out the work (broegaard and rivas, 2007: 56), and conflicting interests that the members have been, and continue to be, subject to32. james anaya's comments regarding the progress resulting from the approval of law 445 (2003) have been very revealing. in his qualified opinion: “in general, the law is adequate, it is quite progressive ... the problems are lack of funding, the lack of technical training of the people who are there, and the politicisation of the institutions. when the parties that have won the elections change the people, continuity is lost. this has become part of the political game” (emphasis added) .33. ultimately, despite the significant steps that had been taken as part of the whole process involved in the awas tingni case, both the political context and the legal and institutional culture still present today in nicaragua and the atlantic coast continue to pose a very strong structural barrier for the defence of the territorial rights of the indigenous communities. region (región autónoma del atlántico sur (raas)) and another in the basin of the coco and bocay rivers (cuenca de los ríos coco y bocay). their roles are contained in article 44 of the law. 26 article 45. 27 the process of the request submission phase is described in articles 46 to 51 of the law. 28 articles 52 and 53. 29 articles 54 and 55. 30 articles 56 to 58. 31 article 59. 32 as noted by sandra brunneger (2007: 7), “conadeti members are motivated by complex and interrelated political factors: party loyalty, loyalty / identification with a particular ethnic or mixed-race group, commercial links, relationships for influence, electoral convenience and personal ambition”. 33 interview with james anaya, in martín beristain (2009: 156). the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 75 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap iii.4. titling request by the awas tingni community while the awas tingni community maintained the view that the obligation to demarcate and title their territory was independent from the adoption of law 445 (2003), and that it emanated directly from the judgment of the inter-american court of human rights, the nicaraguan state insisted that the community had to follow the procedures established by the law for the demarcation and titling of their ancestral territory (alvarado, 2007: 625). in view of this situation, the community decided to submit their titling request to the cidt on 11 november 2003. symbolically, this request was the first to be made under the new law (anaya and campbell, 2009: 145). pursuant to article 46 of law 445 (2003), the request submitted had to be accompanied by a fairly complete diagnosis of the main characteristics of the community34. with the consent of the community, this diagnosis was commissioned by the government from a consortium of consultants including alistar-nicaragua, the centre for information and documentation on the atlantic coast (centro de información y documentación sobre la costa atlántica (cidca)), and the central american university (uca), which also had the collaboration of the idaho state university. the study was funded by the world bank land administration project (proyecto de ordenamiento de la propiedad del banco mundial (prodep), with the participation of members of the community. the diagnosis of tenure and land use of the mayangna awas tingni community (diagnóstico de tenencia y uso de la tierra de la comunidad mayangna de awas tingni) concluded that the territory claimed by the community “is part of the mayangna’ ancestral lands, over which the mayangna had had control at least since the eighteenth century”35. one of the main conclusions of the study was that “the current awas tingni community uses and knows all of the territory claimed”36. in addition, “in terms of the customary law recognised by the inter-american court, the community exercises and enjoys this right throughout the claimed area”37. in this sense, the diagnosis estimated that the awas tingni “actively use nearly 125,000 hectares in all of their activities, especially for hunting...”38. however, as the study concluded, “the current land claimed amounts to 94,394 hectares or 76% of the area used”39. finally, with regard to conflicts with neighbouring communities, the study acknowledged that several miskito communities claimed 41,000 hectares within the same area claimed by the awas tingni. however, “these communities were not originally from that area, but 34 according to article 46, the diagnosis of the community must contain the following information: the historical background of the community; their demographic, social, economic and cultural characteristics; their traditional forms of management, use and tenancy for the requested area; the name of the indigenous or ethnic communities and other entities or persons occupying land adjacent to the requested areas; and any possible conflicts that may arise between the community and the neighbouring communities or third parties. 35 diagnóstico de tenencia y uso de la tierra de la comunidad mayangna de awas tingni (raan), alistar-nicaragua-cidca-uca, managua, nicaragua, 13 october 2003, p. 5. it also stated in the diagnosis that “secondary sources match the oral history of the community in order to prove the ancestral relationship between the mayangna people and the territory claimed”, ibid, p. 31. 36 ibid, p. 178. 37 ibid, p. 178. 38 ibid, p. 170. 39 ibid, p. 170. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 76 felipe gómez isa had been relocated to the north of the wawa river by the nicaraguan agrarian institute (ian) in the 1970s”40. once the titling request had been submitted to the cidt, under law 445 (2003) the cidt “must issue an opinion no later than thirty (30) days after receipt”41. this requirement was not met, since the request lay idle for more than a year without being revised. when the cidt reviewed the request, it was sent to the conadeti. this was another example of the absurdities and lack of technical training and financial resources to adequately perform their duties42 as, pursuant to articles 19 and 52 of law 445 (2003), any disputes between neighbouring communities that they had been unable to resolve43, should have been settled by the relevant regional council (i.e. the regional council of the raan). this had been the case with the conflict between the awas tingni and the neighbouring miskito communities. however, it was not until december 2004 that the conadeti forwarded the titling request to the commission on demarcation of the regional council of the raan. once again, this is a clear example of incompetence and continuous delays occurring. while law 445 provides that the regional council should resolve the conflict “within a maximum period of three months”44, the conflict resolution stage did not begin until march 2005 and took almost two years to complete, until february 2007 (anaya and campbell, 2009: 145). iii.5. dispute settlement stage as we know, one of the most controversial aspects of the awas tingni case has been the territorial conflicts with the miskito neighbouring communities, given the tense relationships that have historically existed between the mayangna and miskito peoples. the three neighbouring communities with problems of overlapping territorial claims were francia sirpi, santa clara and la esperanza (collectively known as tasba raya). as mentioned earlier, the diagnosis made in 2003 showed how these communities came to their present location after having been relocated there by the nicaraguan agrarian institute (ian) in the 1970s45. these communities began to use increasingly larger areas and, to meet their growing needs, they began to demand a territorial space that went beyond the titles recognised by the ian, thus entering the ancestral lands of the awas tingni46. as james anaya and maia campbell (2009: 147) rightly pointed out, the nicaraguan government officials repeatedly argued that the 40 ibid, p. 6. 41 articles 47 and 48. 42 as bitterly acknowledged by anaya and maia campbell (2009: 146), both the conadeti and the cidt lacked an operational budget, sufficient personnel and permanent headquarters both in 2004 and 2005. for its part, the demarcation commission of the regional council of the raan did not receive funds to address the conflict resolution stage until 2005. 43 as stated in article 19 of law 445 (2003), “the autonomous regional council, through the demarcation commission, shall be responsible for resolving any community border disputes that the communities themselves have not been able to resolve in a direct fashion, if all the options have been exhausted by the territorial authorities”. 44 article 53. 45 diagnóstico de tenencia y uso de la tierra…, op. cit., p. 6. 46 these territorial claims are documented in hale and gurdián (1998). the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 77 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap conflict between the awas tingni and their neighbouring communities was the main reason for the lands not having been titled to the awas tingni, in an attempt to divert attention from the lack of institutional capacity and political will to make significant progress in the demarcation and titling process. in march 2005 after countless delays, the second stage provided for under law 445 (2003) began. this was the dispute settlement stage, which entailed the demarcation and titling of the indigenous territories47. as established by the law, the demarcation commission of the regional council of the raan convened several meetings between the awas tingni and the tasba raya communities in an attempt to reach a solution to the problem of territorial overlap of an area of 41,000 hectares. however, by the end of 2006 it was clear that these mediation attempts were doomed to failure. in the absence of an amicable solution between the communities in dispute, the demarcation commission of the regional council of the raan issued a resolution48 which resolved the conflict between the awas tingni community and its three neighbouring communities. by virtue of this resolution, of the 41,000 hectares in dispute, 20,000 hectares were granted to the awas tingni and the remaining 21,000 hectares were divided equally between the three miskito communities, that is, 7,000 hectares were allocated to the sirpi francia community, 7,000 hectares to the santa clara community, and 7,000 hectares to the community of la esperanza.49 finally, the regional council rendered its own decision in february 200750 to end the dispute settlement stage, as provided for in article 21 of law 445 (2003), by simply ratifying the decision taken by the demarcation commission. the end of the dispute settlement stage in early 2007 happened to coincide with daniel ortega becoming the president of the republic. he had won the elections in coalition with the main indigenous party of the atlantic coast, yatama. as we shall 47 chapter 9 of law 445 (2003), articles 52 and 53. 48 resolution no. c.d / c0-02-10-07. the demarcation commission also established that the hectares “should be counted from the wawa river southwards in the overlapping area shown in the awas tingni diagnosis, except for the ancient and sacred sites of the awas tingni, such as tuburús”. 49 this transfer of 21,000 hectares has never been considered to be fair by the awas tingni. as noted in the community meeting held in awas tingni on 8 july, 2011, “the transfer of 21,000 hectares to neighbouring communities was an imposed requirement; the community did not want it, but they had no choice. but the community still considers the territory as being theirs, we have not forfeited this right (there are cemeteries, ancestral community, sacred sites there...)”. 50 “ratification of the resolution of the commission of territorial demarcation and the autonomous regional council of the north atlantic resolving the border conflict between the indigenous awas tingni community and the indigenous communities of francia sirpi, santa clara and la esperanza territory of tasba raya”, resolution no. 26-14-02-2007, adopted in bilwi on 14 february 2007. in august 2008, the regional council of the raan resolved another territorial conflict between the awas tingni and the socalled ten communities (diez communidades). in this case, the council did not change the territorial area that had been recognised as belonging to the awas tingni as in its previous resolution of 14 february 2007, that is, 73,394 hectares. for more on this, see “ratificación de la disposición administrativa no. 45-25-06-2008 sobre el conflicto territorial entre el territorio de la diez comunidades y la comunidad sumo-mayngna de awas tingni', resolution no. 63-11-08-2008”, adopted in bilwi on 11 august 2008. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 78 felipe gómez isa see below, this event provided a strong impetus to the process of demarcation and titling of indigenous territories on the atlantic coast of nicaragua. iii.6. the agreement between the sandinista national liberation front (el frente sandinista de liberación nacional (flsn)) and yatama with a view to participating in the presidential elections in november 2006, at the beginning of that year an agreement was initiated between daniel ortega’s fsln and the main indigenous party from the atlantic coast, yatama51. as a result, a change started to be seen in the traditional disdain with which the political class and the liberal governments that had been in power since the 1990s had treated the demands from the indigenous peoples on the atlantic coast. one of the key points of the commitment agreement between the fsln and yatama signed in bilwi in may 2006 was specifically to support the process of demarcation and titling of indigenous territories. as stated in the first point of the agreement, one of the commitments to be implemented both by the regional autonomous governments and by the national government was “the political and economic support of the institutions responsible for the process of demarcation and titling of indigenous and afro-descendent territories based on law 445 and the criteria included in the judgment of the inter-american court of human rights on the case of the awas tingni v. nicaragua, which stated that the demarcation and titling of indigenous lands should be according to customary law, values, customs and mores of indigenous communities”52. another important point of the agreement had to do with the protection of indigenous peoples' natural resources. as provided in paragraph 7 of the agreement, “an effective and sustained effort will be urgently promoted to contain the agricultural frontier, the indiscriminate cutting of forests and the plundering of natural resources in the autonomous regions...”. as we can see, this agreement was a firm commitment to the demarcation and titling of indigenous territories on the atlantic coast of nicaragua, following the parameters established by the judgment of the inter-american court of human rights in the awas 51 the acronym yatama stands for yapti tasba masraka nanih asla takanka. although fundamentally of miskito origin, yatama has sought to represent all of the indigenous peoples of the atlantic coast. the relationship between the mayangna indigenous people and yatama has been ambivalent, as they do not feel totally represented by that political party. this view was corroborated by one of the local consultants, who stressed that “yatama does not represent the awas tingni community...; some mayangna leaders have joined it, but it does not represent the mayangna communities. they are political agents, not community leaders.' the members of the awas tingni not only do not feel represented by yatama, but sometimes have come to see this political party as a threat. as recognised by a prominent member of the awas tingni community, 'yatama was against us at first, but eventually the government gave their support”. according to miguel gonzález and dolores figueroa (2009: 338), the situation on the atlantic coast is very complex and has multiple problems, so yatama cannot be considered to be the sole legitimate voice for regional demands. 52 commitment agreement between the fsln and yatama, made in bilwi on 2 may 2006 (a document in the possession of the authors of this study). the first point of the agreement also refers to “the full participation of indigenous peoples as actors and beneficiaries' of the process of the demarcation and titling of indigenous territories”. in addition, it specifies that support for the process of demarcation and titling “implies the revival of conadeti and the cidts, the design and scheduling of the action plans, the allocation of financial and technical resources, the development of ethno-maps designed by the communities, among others, which result in the delivery of communal titles to all communities involved”. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 79 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap tingni case, which was expressly cited in the agreement we have just analysed. in the words of leonardo alvarado, a lawyer at the university of arizona who was part of james anaya’s team in the implementation process of the court's judgment, the agreement between yatama and the fsln can be conceived “as a mechanism for incorporating international human rights standards on indigenous peoples, as it cites the awas tingni and yatama decisions as reference points for carrying out the provisions of the agreement” (alvarado, 2007: 641)53. the victory of this electoral coalition and its coming to power in january 2007 contributed to a fundamental change in nicaragua's political and institutional scenario, especially with regard to the demarcation and titling process of indigenous territories on the atlantic coast, which received a significant boost (open society, 2011: 73)54. the fact that the indigenous institutions linked to yatama55 became part of the government brought with it an unprecedented outlook to nicaraguan politics that was felt in most of the policies related to indigenous claims56. as a prominent member of yatama noted, the assessment of the agreement with the fsln in general was “positive; it is not easy to implement, but there is progress. it is an opportunity to realise our aspirations and rights”57. 53 on 23 june 2005 the inter-american court of human rights again ruled against the state of nicaragua for maintaining an electoral law that failed to place the candidates of parties with indigenous roots (such as yatama) on an equal footing with the rest. specifically, the court considered the decision of the higher electoral council to exclude yatama candidates for mayors, deputy mayors and councillors from participating in the municipal elections held on 5 november, 2000 in the raan and the raas, to be a violation of the american convention on human rights. therefore, the court ordered nicaragua to reform electoral law 331 (2000) and “adopt, within a reasonable time, the necessary measures to ensure that the members of the indigenous and ethnic communities may participate in the electoral processes effectively and taking into account their traditions, practices and customs”, in the inter-american court of human rights case of yatama v. nicaragua judgment of june 23, 2005, para. 259. 54 as noted by one of members of the conadeti, the agreement between the fsln and yatama has been “essential in the demarcation and titling process of indigenous lands on the atlantic coast”. a very similar view was held by one of the leaders of the nicaraguan government's indigenous policies, for whom “the core of the agreement between the fsln and yatama is the land ... the government has strongly insisted on this issue”. 55 this was another of the commitments of the agreement between the fsln and yatama. as stated in paragraph 14.4 of the agreement, “the alliance of these forces will ensure that ethnic pluralism, as a principle of the nicaraguan nation, is reflected in the different branches of government and autonomous, decentralised bodies at the national level. these go beyond publicly-elected bodies, and the central government cabinet described above, such as the supreme court, the higher electoral council, the special attorney for indigenous peoples, and the public prosecutor, among others. in this regard, the allies shall promote and support the members of indigenous peoples and afro-descendant communities to be included in these bodies”. 56 the significant increase in the presence of indigenous people in institutions is one of the most important results of the successive agreements (2006 and 2011) between the fsln and yatama. 57 the commission of ethnic affairs, autonomous regimes and indigenous communities of the national assembly of nicaragua has fostered the adoption of various laws and measures to promote the rights of indigenous peoples. in this regard, of note is the ratification by nicaragua in august 2010 of ilo convention 169 on indigenous and tribal peoples in independent countries. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 80 felipe gómez isa iii.7. measuring and marking out stage as stipulated in law 445 (2003), once the dispute settlement stage was completed, the stage for the measuring and marking out of the territory of the indigenous communities territory was due to start58. the inter-sectorial demarcation and titling commission (cidt) had up to 12 months to carry out this highly technical work59. the state was required to provide the necessary resources for this task to correctly conducted, “without prejudice to the communities being able to carry it out using their own resources and/or external support”60. this task was conducted without any major problems in relation to the territory of the awas tingni, and was undoubtedly helped by the new political and institutional climate prevailing in managua61. iii.8. titling stage62 once the work of measuring and marking out the indigenous territory was successfully completed, it was time to issue the appropriate title deed and register it in the public real-estate record office. pursuant to law 445 (2003), it was the conadeti which, following the measuring and marking out procedures, was required to issue the corresponding title deed within 45 days63. in the case of the awas tingni, the conadeti issued the communal title deed64 to the amasau territory (awas tingni mayangnina sauni umani)65 on 13 december, 2008. this date went down in the community’s history thereafter. 58 chapter 10, measuring and marking out (medición y amojonamiento), articles 54 and 55. 59 article 54. 60 article 55. in addition, as stipulated by this article, “the demarcation and titling national commission (conadeti) shall submit a general plan for measuring, demarcation and titling to the president of the republic. the plan will contain a budget and it must be included in the general budget of the republic as a priority and financed according to the annual breakdown” (emphasis added). 61 the feeling that prevails among the members of the awas tingni community is that the coming to government of daniel ortega with the support of yatama was an essential factor in the progress of their territorial claims. as noted by one of the members of the community, “after the judgment of the court it has not been easy ...; we knocked on president bolaños' door ...; president daniel ortega then came to office, and that was when we got the title”. 62 chapter 11, titling stage (etapa de titulación), articles 56 to 58. 63 article 56. 64 communal title deed no. 007-13-12-2008, granted in bilwi on 13 december, 2008. see the title in annex iii of this book. it is worth noting that that in the session in which the conadeti elected its management board and issued the communal title deed to the awas tingni community, the bench of the liberal constitutionalist party (plc) left the plenary session. this is a sure sign that there are still some political sectors that do not willingly accept the advances in the process of demarcation and titling of indigenous territories on the atlantic coast. 65 as stated in the communal title deed, the amasau territory is comprised of two land units: 1) “tapa burus sau u pa umani di dahwa pa (tuburus), a sacred site for the awas tingni. it was established that the wawa river was for common use. free access was provided to the referred sacred area (tuburus) through tapam busna to the confluence or union of the wiruk and kuru was rivers, both of which give rise to the wawa river”; 2) “where the settlement of the mayangna indigenous community of awas tingni and the sacred sites of asang nuhni sau u pa umani, wakumbaih sau u pa umani” are located. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 81 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap the first aspect to be emphasised about the communal title deed to the amasu territory is that the conadeti encompassed it within the “inescapable historical commitment”66 of the state of nicaragua and the government of reconciliation and national unity67 to indigenous peoples. from a symbolic point of view, it is very important that reference was made to this historic commitment of the state to indigenous peoples and also that it was considered to be “unavoidable”, given the conditions of exclusion and marginalisation in which these communities have lived throughout history68. another important dimension of the communal title deed to the amasau territory issued by the conadeti is that it explicitly referred to the judgment of the inter-american court of human rights on the awas tingni case. the conadeti recognised that the titling to the amasau land was simply a measure that nicaragua had to adopt “pursuant to the judgment issued on 31 august, 2001 by the honourable inter-american court of human rights”69. this was ultimately an “act of justice intended to claim and revitalise the full recognition of the historic right to communal property for the demarcation and titling of the ancestral land of the indigenous people of the amasau territory”70. finally, a striking aspect in the communal title deed of the awas tingni is that the legal grounds used to argue the relevance for that title to be issued included a reference to the united nations declaration on the rights of indigenous peoples adopted by the united nations general assembly on 13 september 200771, in particular, to the provisions concerning the right of indigenous peoples to their lands, territories and resources72. this certainly may contribute to giving greater legitimacy and an increasing legal value to the declaration. 66 recital iv of the communal title deed. 67 this was the name of the new government established by daniel ortega in january 2007. 68 it is important to stress that the united nations declaration on the rights of indigenous peoples, adopted by the united nations general assembly in its resolution 61/295, on 13 september 2007, also makes an explicit reference to the question of the historical injustices suffered by indigenous peoples and how this has affected their right to development and their right to lands, territories and resources. in the preamble to the declaration the general assembly it states that it is “concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests” (para. 6). an analysis of this controversial issue can be found in gómez isa (2011: 265-300). 69 recital iv of the communal title deed. 70 ibid. 71 nicaragua's national assembly ratified the united nations declaration on the rights of indigenous peoples on 11 march 2008. this was another result of yatama being in the government from 2007 onwards. 72 recital iii of the communal title deed. it expressly refers to article 26 of the declaration, which reads as follows: 1. “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”; 2. “indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired'; 3. 'states shall give legal recognition and protection to these lands, territories and resources. such the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 82 felipe gómez isa finally, following the provisions of article 57 of law 445 (2003), the conadeti “requests that the public registrar at the public real estate record office of the autonomous region of the north atlantic urgently register the communal title deed to the amasau territory without cost to the beneficiaries”. this registration took place on 13 december 2008, and marked the end of the titling stage. iii.9. title clearance stage the fifth and final stage in the process of the demarcation and titling of indigenous territories under law 445 (2003) was the title clearance stage. pursuant to article 59 of the law, “each of the communities, once they have obtained their title deed, may commence, with the technical and material support from the rural lands titling office (otr), the title clearance stage, in relation to third parties occupying their lands”73. title clearance was intended to identify and characterise the presence of third parties within indigenous territories in an attempt to reach a solution that was compatible with the exercise of the territorial rights by indigenous peoples. this required specifying their location, how they came to occupy those areas, documents that support their occupation, their activities and what impact these activities had on the natural resources in these territories. the truth was that “title clearance ... is crucial to provide effective protection to indigenous peoples... since the invasion of third parties directly affects the use and enjoyment of their collective lands” (acosta, 2010: 13). this is one of the most serious problems currently facing the awas tingni for a number of reasons, namely the accelerated colonisation process experienced in their territory in recent years caused by the settlement of war veterans from the 1980s war in the area with the support of the government74; the unstoppable expansion of the agricultural frontier; and the unbridled race for the exploitation of valuable natural resources such as timber and minerals. once the communal title deed to the amasau territory had been issued and registered, on 8 july 2009 the awas tingni made a request for the title clearance stage of its territory to start. this request fell on deaf ears75, as the title clearance process was once again hampered by the lack of coordination between the institutions76, and the recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned”. 73 article 3 of law 445 defines third parties (terceros) as “natural or juridical persons, other than the communities alleging property rights within a communal land or an indigenous territory”. the otr has been replaced by the so called intendencia de la propiedad , which has now assumed its functions. see “restablecimiento y desconcentración de la intendencia de la propiedad”, decree no. 130-2004, la gaceta diario oficial, no. 234, 1 december 2004. 74 this is a politically and socially very complex issue, which, more than 20 years after the end of the war in nicaragua, continues to generate much controversy (abu-lughod, 2000: 32-62). 75 the awas tingni has made five other requests for the opening of the title clearance stage of the amasau territory. new requests were filed on 7 september 2009, on 23 october 2009, on 19 march 2010, on 1 june 2010 and the last on 24 october 2011. 76 the conadeti management board published a manual of procedure for the title clearance stage (23 february 2008), but, in addition to being confusing as to the responsibilities of each institution, “it the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 83 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap more than obvious limitation of economic resources77. as a result of successive title clearance requests by the awas tingni community, several reports were issued on the characterisation of the third parties within the amasau territory78. while the conadeti publicly committed itself to completing the title clearance process of all indigenous territories that fell under law 445 throughout 2011, this has not involved significant actions by the institutions that have to carry out the title clearance (comité ejecutivo de la conadeti, 2009)79. given the lack of a reaction from the institutions responsible for the title clearance, the community of awas tingni and the amasau territorial government, with the support of international cooperation and the association of indigenous councils of cauca (acin), in july 2011 started a report on the characterisation of third parties in the amasau territory, promoting the necessary inter-institutional collaboration80. this report was issued in may 201281 and became the basis for the title clearance process to be carried out. this should once and for all complete the process of demarcation and titling of the amasau territory. its findings are quite worrying in relation to the colonisation of the community's territory. as noted in the report, “the advance of the settlement processes in the amasau territory and the devastation of natural resources are extremely fast and uncontrollable; ... the settlement process is continuous and is increasing at a rapid pace with new migrants”82. this is a very telling fact about the increased presence of third parties in the amasau territory. the 43 families and others in the awas tingni community's territory noted in the diagnosis of turns the title clearance stage into a bureaucratic and expensive procedure, more complex than necessary, contradicting the provisions of article 59 of law 445” (acosta, 2010: 15). 77 the conadeti itself has acknowledged that “it does not have the necessary materials, tools, equipment and means of mobilisation necessary to carry out the activities of the demarcation and titling process”, in comité ejecutivo de la conadeti (2009: 13). 78 informe narrativo sobre los daños ambientales ocasionados por la presencia de colonos y/o terceros en las tierras de la comunidad indígena de awas tingni, magfor-marena-inafor y policía nacional, may, 2010; informe sobre la situación de avance de la frontera agrícola en los territorios wangki twi, li auhbra y amasau con jurisdicción en el municipio de waspám, raan, prepared by the permanent special committee on the demand and control of the advancement of the agricultural boundary, may 2011. 79 evelyn taylor, member of the national assembly, deputy head of the real estate registry (pgr) and member of the conadeti, openly admitted to us that the title clearance process is proving to be much more complicated than originally planned, and has not advanced as far as it should. in her opinion, it is not a problem of a lack of political will, but technical complications and the division and corruption within the indigenous communities themselves (interview with evelyn taylor, held in managua on 26 january 2012). 80 the report was prepared by the conadeti and cidt, the delegate of the ministry of interior, the regional council, the attorney general's office (pgr), the agriculture and forestry ministry (magfor), the national forestry institute (inafor), the ministry of environment and natural resources (marena), the national police and the army of nicaragua. 81 caracterización jurídica y social de terceros en el territorio ancestral de la comunidad mayangna de awas tingni-awastingni mayangnina sauni umani (amasau), almaciga-asociación de cabildos del norte del cauca (acin)-agencia española de cooperación internacional y desarrollo (aecid), may 2012. 82 ibid, p. 68. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 84 felipe gómez isa tenure and land use drafted in 200383 have increased to 424 families (1,916 people) in the current report. as noted with great concern in the report of 2012, this emphasises that “after the diagnosis the number of settlers in the territory multiplied alarmingly”84. this means that, in practice, the claims of occupation by third parties in the amasau territory extend to 67,375 hectares, that is, nothing more and nothing less than 91% of the territory of the awas tingni85. this situation led to the report’s rather pessimistic conclusion: “it is paradoxical that an indigenous community that has been internationally recognised for having prevailed in a lawsuit before the inter-american court of human rights against the state of nicaragua for the recognition of their ancestral territorial rights, which used the judgment issued in its favour to have a special law created for demarcation and titling for indigenous peoples of the atlantic coast (law 445), and obtained a title with the implementation of this law, is facing the threat of the usurpation of 91% of their territory, all this under a government whose main indigenous peoples policy is the restoration of rights”86. faced with a situation which can only be described as a genuine emergency, on 28 may 2012 the president of the amasau territorial government sent a letter to the president of the republic in which, in addition to enclosing a copy of the report on the legal and social characterisation of third parties in the territory of the awas tingni, he asked for “the immediate cessation of land usurpation in the amasau territory” and the full completion of the title clearance of the territory87. as can be seen, the title clearance phase was tremendously complex and may strongly affect the whole of the process of the demarcation and titling of the amasau territory. in fact, this is what has happened in the whole territory of the moskitia, not only in relation to the amasau territory. the absolute lack of title clearance is paving the way to the invasion of the territories by settlers through violence, displacement and destruction of indigenous property88. 83 diagnóstico de tenencia y uso de la tierra de la comunidad mayangna de awas tingni…, op. cit., p. 171. 84 caracterización jurídica y social de terceros en el territorio ancestral de la comunidad mayangna de awas tingni…, op. cit., p. 68. in fact, over the last 5 years the settlement process has rapidly increased. as stated in the report being discussed, 62% of third parties have settled there in the last 5 years. this is due to several reasons: first, hurricane felix in september 2007, 'after which the prohibition on timber resources and the requirements for forest use were relaxed'; also, this acceleration has to do with “the government statement of 30 june, 2010, whereby there would be no eviction of third parties from the indigenous territories of the atlantic coast”; finally, “poverty and lack of land to work are the main reasons of land occupation in the amasau territory”, ibid, p. 70. 85 ibid, p. 69. 86 ibid, p. 69. 87 letter signed by levito jhonatan mcklean, audiño nelson demetrio and barrington salomon, ‘referencia: acciones inmediatas y solicitud de saneamiento territorio amasau’, awas tingni, raan, 28 may 2012 (document in the possession of the author of this study). 88 yapti tasba masraka nanih aslatakanka yatama, declaración de la asamblea general extraordinaria de los pueblos indígenas y afrodescendientes de la moskitia nicaragüense “comandante mario leman muller”, bilwi, 28 february 2016. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 85 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap iv. conclusions 1. the first conclusion has to do with the enormous importance that support has in the defence of a highly vulnerable group, such as indigenous peoples. on this occasion vulnerability was much greater given the degree of isolation and abandonment in which the awas tingni lived and their poverty levels. it was essential for the relationship that the team of lawyers had with the community to go beyond the traditional lawyer-client relationship. an indigenous community such as this was not just another client, it was a very special client that needed guidance and support, not only during the legal process that led to the 2001 judgment, but also in the process of the implementation of the judgment. the team of lawyers led by james anaya adjourned its work in awas tingni in december 2008, when the community was awarded the title to their ancestral lands and that title was registered. after the interviews we had with prominent members of the community, we detected a general sense of abandonment since, despite the title having been granted, the full implementation of the judgment remains somewhat unfulfilled. the stage related to the title clearance of the community's territory still remains to be completed. the territory is still to this day invaded by settlers, illegal loggers, etc.. and the community does not have specialised legal advice that is accepted by all of them and provides them with protection against these continuing attacks on their ancestral rights. 2. another lesson we have learned during our research is related to the importance of the processes, not just the results. how a particular result is reached is as important as the result itself. because of this, our methodology has consistently sought to unravel the various key aspects in the process, the main actors, its dynamics, and its structural obstacles. a crucial element is that the process itself has to be conceived as a strategy for enabling and empowerment. the process that led to the legal victory in 2001 has been an essential tool for precisely this kind of enabling and empowerment. most of the people we interviewed told us that, while before the case they had very vague notions of what human rights were, today they have more specific knowledge. but it is not only a question of knowledge; they also have the belief that, despite being indigenous people who have been left out of nicaragua’s history and institutions, they do have rights, and these rights have been recognised by none other than the interamerican court of human rights, a genuine human rights court. the case and the process undergone by the community and their support team involved a significant degree of empowerment. 3. another important aspect to consider is that the implementation process of the decisions of international courts rests largely on internal elements and factors. in this sense, as has been shown in this study, the political situation in nicaragua in the early 2000s, with the return of the sandinista national liberation front (fsln) to the political scene, marked a before and after in the implementation process of the awas tingni judgment, something that had not been included in the priorities of neoliberal governments. another factor to take into account is the emergence of yatama, the indigenous party of the atlantic coast, as an actor on the national, and not only on the atlantic coast stage. the alliance between yatama and the fsln in 2006, in which the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 86 felipe gómez isa express reference was made to the implementation of the awas tingni judgment, was instrumental to its subsequent implementation. daniel ortega’s (fsln) coming to power in 2007 definitely unclogged some of the seemingly immovable obstacles in order to allow the process of demarcation, delimitation and titling of indigenous territories to be carried out. 4. the traditional evils of the nicaraguan political system also affected the implementation process of the awas tingni judgment. factors such as endemic corruption, the historical exclusion of the atlantic coast from national politics, the absence of a genuine rule of law and the weaknesses of the awas tingni community in defending their territorial rights, made the implementation process fraught with pitfalls and difficulties. 5. another aspect that has become clear after our thorough investigation is that the mechanisms that the inter-american human rights system has established for the implementation of its decisions is clearly improvable, to put it mildly. the interamerican court has no specific effective mechanisms in place to accompany the implementation process of its decisions. there has been some progress, such as implementation hearings held before the court itself, but there is still a long way to go, as acknowledged by both the court and the general assembly of the organisation of american states, the political body which oversees the inter-american system. 6. finally, it must be acknowledged that the decision of the inter-american court of human rights in the case of the awas tingni community against nicaragua (august 2001) has set a very promising precedent for the evolution of the right of indigenous peoples to their lands and natural resources in the international legal landscape. the interpretation given by the court of the right to property in this landmark case has been a real challenge to the traditional concept of property rights contained in the most relevant international human rights instruments. in addition, this innovative and courageous jurisprudence has been followed and furthered by the interamerican court in other cases where indigenous communities were also involved in the defence of their ancestral territories. the most significant cases are yakye axa, moiwana, saramaka, sawhoyamaxa, xákmok kásek, and sarayaku, among others. the court followed what it called an 'evolutionary' interpretation method, opening the door to the use of regulatory developments on human rights produced in other contexts outside that of the inter-american system. this enabled the court to overcome purely formalistic criteria in its interpretation of the meaning, nature and scope of the right of indigenous peoples to the ownership of their lands and natural resources. although article 21 of the american convention on human rights (1969)89 does not explicitly refer to the indigenous peoples’ right to collective property, the interpretation offered by the court is that that provision includes not only the traditional and orthodox conception of property as an individual right, but that it must also protect the communal property of indigenous peoples as defined by their own custom and usage. as a result of this new 89 article 21.1 of the american convention on human rights states that “everyone has the right to the use and enjoyment of his property. the law may subordinate such use and enjoyment to the interest of society”. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 87 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap interpretation, the inter-american court concluded that the state of nicaragua had violated the right to property of the awas tingni, since concessions had been made to a logging company without their consent and by failing to complete the demarcation, titling and registration of the community's territory as demanded both by the nicaraguan constitution of 1987 and the statute of autonomy of the north atlantic autonomous region (raan, 1987). the second innovative aspect of the court's decision has to do with the predominantly collective dimension given to the property rights of indigenous peoples, something that clashes with the classical interpretation of human rights in the western world. helped by the testimonies of leaders of the awas tingni community and experts in the rights of indigenous peoples in the public hearing held at the seat of the court in san josé, costa rica, the highest court of the americas on issues related to human rights concluded that 'among indigenous peoples there is a communitarian tradition regarding a communal form of collective ownership of land, in the sense that ownership of land is not cantered on an individual but on the group and community' (para. 149). in the same vein, the court held that 'the close ties of indigenous people with the land must be recognised and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival' (para. 149), emphasising the cultural and spiritual significance the land has in indigenous worldviews. another important point in the pronouncement by the court was to do with the ultimate basis for the indigenous right to property. for the court, the basis for the right to property does not come from recognition by the state, but is grounded on the customary practices of indigenous communities. in the words of the court, “as a product of custom, possession of land should suffice for communities lacking real title to property of the land to obtain official recognition of that property and the subsequent registration” (para. 151). therefore, the court ruled against the state of nicaragua for violating the property rights of the awas tingni and, consequently, the state was obliged to delimit, demarcate and title the territory of the awas tingni and other indigenous communities in nicaragua. despite the enormous difficulties that the awas tingni have faced in the implementation process of the judgment of the inter-american court (in fact, the community only received title to the lands in december 2008, more than seven years after the judgment), it must be acknowledged that this decision has opened the door to very progressive developments in terms of indigenous peoples’ rights to their lands and territories, and a degree of empowerment for the indigenous peoples themselves in defence of their rights. in any case, as in many other contexts, there is a huge gap between, on the one hand, the formal recognition of indigenous peoples’ rights and, on the other, the stark reality still faced every day as part of an unbridled struggle for access to natural resources. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 88 felipe gómez isa references abu-lughod, deena i. (2000). “failed buyout. land rights for contra veterans in post-war nicaragua”, latin american perspectives. vol. 27, no. 3, pp. 32-62. doi: https://doi.org/10.1177/0094582x0002700303 acosta, maría luisa (2010). “los retos del proceso de titulación y saneamiento como protección a la propiedad indígena”. wani: revista del caribe nicaragüense, no. 60, january-march. alfred-cunningham, anexa b. (2011). “derechos territoriales de los pueblos indígenas y comunidades afrodescendientes en nicaragua”, in aparicio wilhelmi, marco (ed.): los derechos de los pueblos indígenas a los recursos naturales y al territorio. icaria, barcelona, pp. 203-222. alvarado, leonardo j. (2007). “prospects and challenges in the implementation of indigenous peoples’ human rights in international law: lessons from the case of awas tingni vs. nicaragua”. arizona journal of international&comparative law, vol. 24, nº 3. anaya, james s. and campbell, maia s. 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(2010). from judgment to justice. implementing international and regional human rights decisions. open society justice initiative, new york. broegaard, rikke y rivas, álvaro (2007). “introducción del libro demarcación territorial de la propiedad comunal en la costa caribe de nicaragua”. wani: revista del caribe nicaragüense, january-march. brunneger, sandra (2007). el camino de conflicto a autonomía en nicaragua: lecciones aprendidas. minority rights group international, london. comité ejecutivo de la conadeti (2009). informe ejecutivo de la conadeti y las cidts. bilwi-raan, 10 december. gómez isa, felipe (2009). “repairing historical injustices: indigenous peoples in post-conflict scenarios”, in gómez isa, f. and ore aguilar, g. (eds.). rethinking transitions. equality and social justice in societies emerging from conflict. intersentia, antwerp-cambridge, 2011, pp. 265-300. gómez isa, felipe (2014). “cultural diversity, legal pluralism, and human rights from an indigenous perspective: the approach by the colombian constitutional court and the inter-american court of human rights”. human rights quarterly, vol. 36, pp. 723-756. gonzález, miguel and figueroa, dolores (2009). “nicaragua multicultural: autonomía regional en la costa caribe”, in marti i puig, the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 89 the decision by the inter-american court of human rights on the awas tingni vs. nicaragua case (2001): the implementation gap salvador and close, david (eds.). nicaragua y el fsln (1979-2009). ¿qué queda de la revolución?, edicions bellaterra, barcelona. hale, charles and gurdián, galio (1998). diagnóstico general sobre la tenencia de la tierra en las comunidades indígenas de la costa atlántica. central american and caribbean research council (cacrc), blufields and puerto cabezas. inter-american court of human rights. case of the mayagna (sumo) awas tingni community v. nicaragua. judgment of august 31, 2001. series c, no. 79. jarquín, lilliam (2003). “el nuevo marco jurídico de la propiedad comunal en la costa atlántica y los ríos bocay, coco, indio y maíz”. wani: revista del caribe nicaragüense, nº 32, enero-marzo, pp. 6-18. keck, margaret e. and sikkink, kathryn (1998). activists beyond borders. advocacy networks in international politics. cornell university press, ithaca. martín beristain, carlos (2009). diálogos sobre la reparación. qué reparar en los casos de violaciones de derechos humanos. ministerio de justicia y derechos humanos, quito. martín, claudia and rodríguez-pinzón, diego (2013). impacto nacional de los casos individuales del sistema interamericano de derechos humanos en materia de pueblos o comunidades indígenas. mclean cornelio, esther melba (2004). el caso awas tingni v. nicaragua: hacia el reconocimiento de los derechos de propiedad comunal indígena en la costa atlántica. mclean cornelio, esther melba (2005). “la falta de implementación de la sentencia de la corte inter-americana de derechos humanos en el caso awas tingni”, seminario de expertos de las naciones unidas sobre implementación de legislación y jurisprudencia a nivel nacional relativa a los derechos de los pueblos indígenas: experiencias de américa. university of arizona, indigenous peoples’ law and policy programme, tucson, 12-14 october. morgan, rhiannon (2004). “advancing indigenous rights at the united nations: strategic framing and its impact on the normative development of international law”. social legal studies, vol. 13, pp. 481-500. doi: https://doi.org/10.1177/0964663904047330 open society justice initiative (2011). from judgment to justice. implementing international and regional human rights decisions. open society, new york. report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people. mr. rodolfo stavenhagen, e/cn.4/2006/78, 16 february 2006. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 90 felipe gómez isa rodríguez garavito, cesar and rodriguez franco, diana (2010). cortes y cambio social: cómo la corte constitucional transformó el desplazamiento forzado en colombia. dejusticia, bogotá. rodríguez-piñero, luis (2004). “el caso awas tingni y el régimen de derechos territoriales indígenas en la costa atlántica de nicaragua”, en aylwin, josé (ed.). derechos humanos y pueblos indígenas. tendencias internacionales y contexto chileno. instituto de estudios indígenas-universidad de la frontera, temuco. wiggins, armstrong (2002). “el caso awas tingni o el futuro de los derechos territoriales de los pueblos indígenas del caribe nicaragüense”. wani: revista del caribe nicaragüense, nº 30, julio-septiembre. the age of human rights journal, 8 (june 2017) pp. 67-91 issn: 2340-9592 doi: 10.17561/tahrj.n8.4 91 the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 163 the right of assembly in central europe petr černý1 abstract: the article deals with the legal regulation of the right to freedom of peaceful assembly in germany, austria, the czech republic and the slovak republic with regard to the jurisdiction of the european court of human rights (echr). the chosen topics focus on the definition of assembly, the relationship between freedom of expression and property rights together with the right of assembly. in each of above-mentioned countries, the assembly to which constitutional protection is granted, the definitiondiffers slightly; with the widest concept of assembly deriving from the judicature of the echr. the constitutional protection of the assembly, in particular found in germany and austria, which is significantly narrower than the protection provided by the european convention on human rights, may thus at some stage come into conflict with the requirements of the echr. the section devoted to freedom of speech deals, among other things, with cases exhibiting shocking photographs, which were part of the campaign against abortion, in front of schools in the czech republic and the slovak republic. in the future, the most serious problem is the conflict of the right of assembly along with the right of ownership, consisting in assemblies held on private property, which is used by the public, such as shopping malls, airports or railway stations. this has been the focus of the professional public and the courts for a long time, especially in germany. keywords: right to freedom of assembly, freedom of expression, assembly, european convention on human rights, european court of human rights, law of property/ownership right. summary: 1. introduction. 2. the concept of assembly. 3. reationship to freedom of expression. 4. relationship to the ownership right. 5. conclusion. 1. introduction the right to freedom of assembly is considered to be one of the fundamental rights and is guaranteed both in the constitutional documents of european states and in article 11 of the european convention on human rights (hereinafter “the convention”).2 in recent decades, the right to freedom of peaceful assembly with juridical science (jurisprudence) has been neglected and has been referred to by some authors as a forgotten right.3 at present, however, it is receiving more and more attention not only in central europe. the european court of human rights (the “echr”) plays an important role in the application 1 assistant professor at the faculty of social and economic studies of the university of jan evangelista purkyně, and a judge at the regional court in ústí nad labem, czech republic (pcerny@ksoud.unl. justice.cz). 2 article 11 of the convention: “1. everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” 3 some authors have also referred to it as a neglected right (peters & ley, 2016; inazu, 2010). the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 164 of the right to assembly, interpreting the rights anchored in the convention and providing its contractually bound states states with a basic framework of the level of human rights. at the beginning of the development of civil and political rights in the 18th century, the right of assembly was defined as the possibility for citizens to speak together at an assembly against an absolutist state (stein, 1998: 315). in a democratic state governed by the rule of law (as opposed to an absolutist, totalitarian or autocratic state), this freedom of the right of assembly, like other freedoms, takes on a broader dimension which allows them to discuss and address all issues of societal importance, and thereby elevates it one of the structural elements of democracy. at present, it is no longer possible to restrict the right of assembly to its original function of shaping politics and political views aimed at managing public affairs (similarly dreier, 2004: 897-898). in a similar fashion, the function of the state (if we speak of central and western europe) has changed, whereby the limited passive state tolerates the holding of the assembly that has become an active guardian of the realization (implementation) of this freedom. the right of assembly sometimes remains the only effective way of expressing certain groups of the population, or in general, representatives of minority views, who do not have access to the media or at least sufficient funds to spread their ideas. the assembly gives a certain added value to the expressed opinion, because the presence of a certain number of people in a particular place strengthens the significance of the expressed attitude adds to it a certain emotional dimension. in the states of central europe, namely in germany (art. 8 grundgesetz gg), the czech republic (art. 19 charter of fundamental rights and freedoms – (listina základních práv a svobod, the czech acronym lps), slovakia (art. 19 charter of fundamental rights and freedoms (the slovak acronym lpzs) and austria (art. 12 staatsgrundgesetz stgg) the right of assembly is enshrined directly in constitutional law, where it is included among political rights for historical reasons, but it is recognized that its scope is broader, including even for non-political assemblies (identically bartoň, 2016: 405; molek, 2014: 250; mangoldt & klein & starck, 2010: 825; öhlinger, 2009: 408-413; wagnerová & šimíček & langášek & pospíšil, 2012: 459). this approach is also in accordance with the convention, which does not declare the right of assembly to be a political right. on the other hand, there are differences in legislation and the concept of the right of assembly between the individual central european countries above-mentioned. even in these states we find differences from the way the echr interprets the right of assembly. the subject of this paper is a description and comparison of the legislation of these states, taking into consideration the case law of the echr. first of all, however, it should be noted that due to historical circumstances, austrian legislation and juridical theory are very similar to the german approach and slovak legislation and practice are very similar to czech legislation and practice.4 for this reason, special attention will be paid to germany 4 due to the fact that the czech republic and the slovak republic did not form one state until 01/01/1993, they still have the original act on assemblies no. 84/1990, which, however, is no longer completely identical due to the amendments in both of these states. petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 165 and the czech republic, and an austrian or slovak approach will be introduced only if it is beneficial for the topic. 2. the concept of assembly one of the key problems in the application of the law of assembly is the definition of assembly and the resulting protection provided not only by the convention but also by the constitutional laws of individual states. where an assembly can be defined as an assembly falling under article 11 of the convention or an assembly under constitutional law, it follows that the assembly qualifies for additional increased protection against interference on the part of state and third parties, who must respect the application of this fundamental right. on the contrary, unless it is an assembly under the protection of the convention, it may be restricted by ordinary legal prohibitions. assemblies within the meaning of the convention are generally considered to be private and publicly accessible assemblies of persons, as well as street processions, i.e. assemblies not limited to one place, whose participants have a common goal. the echr , while/in applying article 11 of the convention, proceeds from the assumption that the concept of “assembly” means a grouping of a large number of individuals, processions and public parades in a peaceful form. the concept of assembly according to the convention also includes political and religious,5 cultural,6 social and other assemblies7 and even a long-term occupation of buildings.8 it should be called to mind here that article 11 of the convention, as well as the constitutional laws of germany, the czech republic, slovakia and austria, protect only peaceful assemblies. this means, among other things, that the meeting is not convened for the purpose of committing violence, riots and other illegal acts or that these activities are not organized by the convener or another person (organizer) during the meeting. minor incidents during the course of assembly do not make the assembly peaceless (troubled/ restless).9 neither the convention nor the legislation of the above named states defines what may be considered an assembly, and therefore the definition is based on juridical theory and judicature. in germany, an assembly is defined as a shorter time frame10 of a local 5 judgment of the echr in the matter of barankevich v. russia of 26/07/2007, no. 10519/03 6 judgment of the echr in the matter of the gypsy council v. the united kingdom of 14/05/2002, no. 66336/01 7 furthermore, judgments of the echr in the matter of djavit an v. turkey of 2/02/2003, no.20652/92; bączkowski and others v. poland of 03/05/2007, no. 1543/06; sergey kuznetsov v. russia of 23/10.2008, no. 10877/04; decision of the european commission on human rassemblement jurassien unité jurassienne v. switzerland of 10/10/1979, no. 8191/78 8 judgment of the echr cissé v. france of 09/04/2002, no. 51346/99 9 decision of the european commission for human christians against racism and fascism v. the united kingdom 16/07/1980, no. 8440/78; judgment of the echr stankov and the united macedonian organization ilinden v. bulgaria of 02/10/2001, complaint no.29221/95 and no. 29225/95 10 however, it is problematic to determine what is a shorter time frame. dreier (2004: 898) states that this can be a few seconds, for example by unfolding a banner, or a few days or weeks when protesters spend the night on the spot, which is not generally accepted. the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 166 meeting of several people with the common goal of the collective formation of opinions or expression thereof (düring & enders, 2016: 8). a typical feature is considered to be common communication-oriented behaviour, where people are connected by an internal bond and move towards joint action. for this reason, random gatherings (e.g. before advertising) or intentional celebrations are not considered gatherings. nor do the formal announcement and designation of the event determine it to be an assembly (schmidt, 2007: 379). however, it is recognized that an inner bond may be formed in these random gatherings and then they in part may emerge as an assembly under the protection of the gg (jarass & pieroth, 2006: 252). the basic feature of the assembly according to article 8 of the gg is the focus of the assembly on the formation of a common opinion or expression of opinion, which is communicated either between the participants of the assembly or outside the assembly. it is irrelevant whether this assembly is limited to the participants invited and is therefore a private assembly, or a public assembly aimed at influencing public opinion by presenting a particular opinion. it is indifferent how the opinion is presented, it can be done nonverbally – by means of banners, even by singing a song or participating in some other musical production. the crucial question to be examined is whether there was clearly a unifying internal psychological element which either acted among the participants in the assembly or was an expression of opinion (albeit non-verbally) in such a way that the opinion was clear to the non-partiicpating observer. for this reason, a person/persons led by his/their own intrinsic motif/motives without collective knowledge and connection cannot be considered an assembly, i.e. for instance, attending an artist’s concert, because the participant agrees with his political views, not because i am interested in his music. if this motif remains hidden and is not shared at least with other concert goers, it cannot be considered, according to the german theory, an assembly under the protection of gg (cf. dreier, 2004: 896-898). in addition, the view has emerged in germany that, in order for an assembly to be regarded as an assembly under the gg, it must not only seek to form opinions, but must also be an opinion on a matter of public interest. however, this is regarded as a minority view, which is not in line with article 8 of the gg (schmidt, 2007: 378). the austrian approach to the right of assembly is based on a similar concept as the german one (öhlinger, 2009: 408-413), since it defines an assembly as an organized temporary meeting of several people at a certain place and time who meet with the common intention of participating in the formation of a common opinion, or in order to present this opinion to the general public (winkler, 1991: 199; bachmann & baumgartner & feik, 2000: 47; wieser, 2012: 207). the previous definition based on article 12 stgg11 states that it is a gathering of several persons for the purpose of the joint presentation of a certain opinion or will. another previous definition according to the stgg contains the already overdue claim (even in the czech republic) that an assembly is considered to be one that is publicly accessible, planned and serves a political purpose (walter & 11 article 12 of stgg reads as follows: “an austrian citizen has the right to assemble and form associations. the exercise of these rights is regulated by law.” petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 167 mayer: 1987, 54). this example demonstrates what an alteration has been made by the interpretation of political rights in central europe, as the assembly may not be, according to the current interpretation shared with different nuances, either publicly accessible, or planned or existing for a political purpose, and still it may enjoy constitutional and legal protection. in austria, as well as in germany, it has been pointed out that the provisions of article 11 of the convention are considerably broader than the protection of constitutional rules and apply to the concept of assembly under article 11 of the convention and also to other assemblies. in such a case, the convention applies as a matter of priority, as this is a more favourable regulation. this approach towards the necessity for an interest in solving public issues, sharing or forming opinions, recognized in germany and austria, has interesting consequences. in 1989, a fine was imposed for failing to properly and timely announce its assembly in innsbruck in front of the entrance to the andreas hofer memorial, which consisted of the person, his wife and three minor children. participants held handwritten banners, one of which read, “partle, give us our rights. amen.” the complainant defended himself by directing his appeal to the provincial governor, dr. partl, awakening his awareness of responsibility in the complainant’s case. the complainant alleged that his intention was not to engage in public debate, but to assert rights in his case. the austrian constitutional court (verfassungsgerichtshof) ruled in favor of the complainant when he stated that his intention was only to express his opinion and not to address the public, initiate a debate or initiate an action, and therefore it did not constitute an austrian assembly law12 and a fine was imposed unjustifiably.13 in all the countries surveyed, the question arose as to how many people were needed in order for the event to be considered an assembly. the doctrine in germany eventually concluded that two people were sufficient (kniesel & poscher, 2004: 422; jarass & pieroth, 2006: 252; dreier, 2004: 896),14 although prior views were based on the need for three people to participate (stein, 1998: 316). in austria, three people are needed. however, it is also stated that as participants are free to come and go during a meeting, this is not a necessary simultaneous presence and, in addition, it is pointed out that it may be difficult to determine whether it is a meeting (bachmann & baumgartner & feik, 2000: 48). the requirement of at least two persons to assemble has been explicitly defined by certain german provincial laws, such as par.2 (1) of the bavarian bayversg, which defines an assembly, inter alia, as a meeting of at least two persons. 12 versammlungsgesetz no. 98/1953 bgbl of 07/08/1953 13 judgment of the austrian constitutional court (verfassungsgerichtshof) of 29/09/1989, reference b706/8, 14 furthemore, see for instance the judgment of the german federal constitutional court of 24/10/2001, reference 1 bvr 1190/90 the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 168 however, the unanimous opinion in all the examined states is that the demonstration of one person as a realization of the right of assembly is not allowed, but this does not change the possibilities of the realization of freedom of speech. an assembly, according to the czech act on assembly,15 can generally be characterized as a voluntary meeting of at least two people in a public place for the purpose of exercising constitutional rights and freedoms, exchanging information and opinions or participating in public or other common issues by expressing the attitudes and opinions of participants. similarly, for example, the authors potměšil and jamborová (2017: 223) define an assembly as a meeting of at least two persons, used primarily to exercise freedom of speech and other (especially political) rights, to exchange views and information and to participate in public and other societal issues by expressing attitudes and opinions. in czech literature, we can also come across an opinion based on the historical latin saying “tres faciunt collegium” (three form an association), according to which it is necessary to accept the subject as an assembly of at least three people (wagnerová & šimíček & langášek & pospíšil, 2012: 353). the supreme administrative court of the czech republic in its judgment of 11/06/2013, file no. 8 as 101/2011-186, took the view that two participants in the assembly were sufficient, stating: “the supreme administrative court considered that it would be in accordance with the principal of tres faciunt collegium that the assembly be composed of at least three persons. he agreed with the concept that an assembly can be defined as a voluntary meeting of at least two persons in a public place for the purpose defined in section 1 subsection 2 of the act on the right of assembly, ie the exercise of freedom of expression and other constitutional rights and freedoms and to participate in the resolution of public and other common issues by expressing positions and opinions.” (černý & lehká, 2010: 18). according to the opinion stated in another judgment of the supreme administrative court of the czech republic, five features must be cumulatively met in order to speak of an assembly according to the czech assembly act: 1) it must be an assembly of several people. 2) participants must be physically present at one specific location. 3) the assembly must have a certain beginning and end, with the participants being present at the same time. 4) the purpose of the meeting is the exchange of information and opinions, expression of participants’ attitudes to the solution of public and other common issues in the sense of the provisions of section 2 letter. c) of the assembly act. 15 act no. 84/1990 sb. (coll.), on the right of assembly of 29/03/1990 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 169 5) the participants in the assembly must express their intention to exercise the right of assembly towards the general public and must be aware that they are exercising the right of assembly. in a particular situation, it must be objectively ascertainable that the right to assemble is exercised at all. however, these features must be understood in the context of a very specific case of blockade of tree-felling (černý, 2016: 408). while features 1), 2) and 4) can be agreed upon, we must be careful with characters 3) and 5). the meeting can also take place in such a way that the individual participants come and go and thus participate only in a part of the meeting. the beginning of the assembly can be determined only when all the features of the assembly are fulfilled, which can be quite difficult in practice. in this context, it is possible to point out a number of ambiguities that have not yet been resolved. is it possible to consider as an assembly several persons already gathered on the spot, but awaiting the convener who is to lead the assembly (procession) or, in the case of a stationary assembly, who is to give an introductory speech? is it an assembly only after the participants leave the spot where they gathered, or is it an assembly when the first two participants come to the assembly, but cannot still be distinguished from passers-by? if we think about the manifestation of an assembly towards the outside, i.e. without the participants of the assembly, it is necessary to be approached with regard to the type of assembly (whether it is public or private). here we come to the question as to whether the relatively narrow definition of assembly according to german (or czech) doctrine is not in conflict with the concept according to the convention. the german doctrine is, of course, aware of this and states that all private and public assemblies are considered to be assemblies under article 11 of the convention, regardless of their intended content. however, there is no ambition to resolve this apparent contradiction and it deals with the interpretation of article 8 of the gg (dreier, 2004: 889). let us recall the case of the gypsy council v. the united kingdom.16 it was a traditional romani horse race, which was banned for fear of undue public nuisance. the echr qualified this action as an assembly under article 11 of the convention, but without justification. according to these theories, this action/event would not fall under the constitutional protection of these states, as its purpose was only a horse race lacking the presentation of common ideas outside or inside the assembly. however, the problem does not arise here for the time being, as no echr decision on the right of assembly against the czech republic, germany, austria or slovakia has been issued in the last five years (2015-2020). during this period, cases where russia and turkey are being sued are mainly resolved, and the list is supplemented mainly by the post-soviet states (ukraine, armenia, azerbaijan, etc.). in these cases, given their seriousness, there is no doubt that the complainants wanted to comment on issues of public interest. 16 judgment of the echr in the case of the gypsy council v. the united kingdom of 14/05/2002, complaint no. 66336/01 the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 170 it is also necessary to mention the problem with the echr judicature, which lies in its quality of being casuistic (or of dealing with cases) and does not reveal the ambition to create a comprehensive concept, which thus comes into being (or develops) very slowly on the basis of individual decisions. after all, the echr itself declares, as it explicitly states in its decisions, that its sole task is to monitor the application of the legislation of the member states and to make a final decision whether the restrictions on the right of assembly are in compliance with the convention. it states that it does not replace the views of the governments of the member states by its own opinion, but merely considers the decision submitted.17 as a substitute for the absence of a general definition of assembly in the case law of the echr, we can use the definition of lithuanian authors18 seeking a universal concept across european states. according to this definition, an assembly is when individuals come together to share ideas with each other or with others, to influence others or to symbolically express their individual views, which usually correspond to the goals of the whole group. this means that the assembly is held with the conscious participation of these natural persons. 3. reationship to freedom of expression the right to freedom of of assembly is closely linked to freedom of expression, which is a fundamental political right, sometimes referred to as universal law or superfreedom (filip, 1998: 618–637). without the opportunity to express ideas or opinions, other political rights would lose their signifikance. what good would a person be able to associate or gather with others if they could not express common views? if freedom of expression cannot be restricted in a particular area (e.g. only because shocking and offensive ideas are presented), freedom of assembly cannot be restricted for this reason either. the right of assembly is one of the most important rights by which freedom of expression is exercised. freedom of expression also demonstrates the extent to which political rights are perceived today. without freedom of expression, it is difficult to imagine participating in solving public issues and problems, participating in elections or the opportunity to obtain information without one being able to spread it. j. gericke states19 that no other right is so connected with freedom of speech and acts as a seismograph of political, social and societal change. freedom of expression is one of the most important foundations of a democratic society and one of the main conditions for its progress and the development of any individual. promoting free political debate is a very important feature of a democratic society. the echr (as well as the constitutional courts of germany, the czech republic, 17 judgment of the echr in the case concerning stankov and the united macedonian organization ilinden v. bulgaria of 02/10/2001, complaint no. 29221/95 and no. 29225/95. 18 judgment of the constitutional court of the czech republic of 10/07/1997, ref. iii. ús 359/96. 19 judgments of the constitutional court of the czech republic of 15/03/2005, ref. i. ús 367/03 of 03/02/2015, ref. ii. ús 2051/14 of 20/05/2014, and ref. iv. ús 1511/13 of 11/06/2018, i. ús 4022/17. petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 171 slovakia and austria) attaches the utmost significance to freedom of expression in the political debate and considers that very compelling reasons are needed to justify restrictions on political expression. political expression can be defined as the expression of a person’s will to participate in solving public problems or to express an attitude to certain issues of general interest.20 freedom of assembly and the right to express opinions through it are among the paramount stractures of a democratic society. the essence of democracy is its ability to solve problems through open discussion. radical preventive measures that suppress freedom of assembly and expression in cases other than incitement to violence or rejection of democratic principles however shocking and unacceptable some views and words may seem to state authorities and whatever the illegitimate demands may be, prove democracy bad service and often even threaten it. in a democratic society based on the rule of law, political ideas which call into question the existing order and the implementation of which is advocated by peaceful means must be given a fair opportunity to express themselves through the exercise of the right of assembly as well as other legal means. if any likelihood of tensions or violent exchanges between opposing groups during a demonstration were to justify banning it, society would be deprived of the opportunity of being confronted with differing views on any issue that offends the sensitivity of the majority opinion.21 on the other hand, for example, the czech constitutional court stated that the right to freely express one’s views is already limited in content by the rights of others, whether these rights flow as constitutionally guaranteed by the constitutional order or other barriers imposed by law, protecting societal interests or values; not only content restrictions can deprive the right to express opinions of its constitutional protection, because the form in which opinions are expressed externally is closely connected with the constitutionally guaranteed right to which it is attached. if the published opinion deviates from the limits of the generally recognized rules of decency in a democratic society, it loses the character of correct judgment (reports, comments) and as such usually finds itself outside the limits of constitutional protection (výborný, 2015: 12). however, it can be generally stated that public figures, ie politicians, public figures, media stars, etc., must accept a greater degree of public criticism than other citizens (jarass & pieroth, 2006: 252). the czech constitutional court (constitutional court) further stated that the rule of the presumption of their admissibility, i.e. the presumption of constitutional conformity, applies to statements concerning the resolution of public issues. at the same time, the presumption of constitutional conformity only protects the evaluative judgment, not the assertion of facts, which, to the extent that it is presented as the basis of criticism, must, on the contrary, be proved by the critic himself. it is important to consider the legitimate disclosure of information when examining the motive for disclosure. the legitimacy of a disclosure of information cannot be inferred if it was predominantly motivated by a desire 20 judgments of the constitutional court of the czech republic of 11/11/2005, i. ús 453/03; of 17/07/, iv. ús 23/05. 21 judgment of the echr in the case concerning yilmaz and kiliç v. turkey of 17/07/2008, complaint no. 68514/01. the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 172 to harm the defamed person, if the disseminator did not believe the information himself, or if he provided it recklessly without properly worrying about whether or not it was true.22 according to the case law of the echr, even illegal activities and manifestations that occur at the assembly cannot be attributed indirectly to the organizers of the assembly, unless it is proven that the individuals concerned were directly involved in these activities.23 the czech author š. výborný states that he often finds a specific distinction between freedom of speech and the right of assembly justification blurred, as any interference with the right of assembly will also be an interference with freedom of expression and similarly an interference with the freedom of expression of a participant or convener.24 this is, moreover, in accordance with the german approach to the link between freedom of assembly and freedom of expression, where it is accepted that measures against assembly also (may) interfere with or directly violate the right to freedom of expression (article 5 (1) and article 8) gg.25 the freedom of speech realized in assemblies does not have to consist only of the hanting of logans, but can also be realized or achieved through images. furthermore, the implementation of the right of assembly does not guarantee the immunity of the participants or the convener against liability for speeches of all kinds. an example in this area is the case of alexeyev v. russia dealt with by echr (černý & lehká, 2010: 16-20). in this case, marches of the gay community were banned to warn the public about discrimination against this minority in russia (the marches were called either pride march or gay pride). moscow municipal authorities have banned these rallies, citing violations of the rights of others and those who have a negative attitude toward homosexuality out of religious or moral convictions. they argued that the state must also take into account the requirements of major religious associations, which demanded a ban on such assemblies. in the ruling, the echr pointed out that the mayor of moscow had repeatedly publicly expressed his determination to prevent gay marches, as he said the promotion of homosexuality is considered to be incompatible with the religious doctrines and moral values of the majority. the echr stated, inter alia, that democracy did not mean that the opinion of the majority must always prevail and that only the moral values of officials were reflected in the ban on assemblies, so it did not consider the ban on marches necessary in a democratic society and thus violated article 11. another case of protection of religious sentiment versus the right of assembly was dealt with by the austrian constitutional court26 in the case of “no to meat / yes 22 judgment of the echr of 21/10/2010, complaints no. 4916/07, no. 25924/08 and no.14599/09 23 judgment of the austrian constitutional court of 11/03/2014, file no. e 717/2014 24 commentary to this judgment and reference to a change of approach by the austrian constitutional court is offered by haas (2015). 25 judgment of the german federal constitutional court of 12/07/2001, file no. 1 bvq 28/01, file no. 1 bvq 30/01 26 judgments of the supreme administrative court of 30/10/2012, file no. 2 as 104 / 2012-35, and of 18/052017, file no. 9 as 33 / 2017-16 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 173 to vegetarism”, which consisted in the planning of an assembly in 2014 in the center of linz. the participants of this assembly (about 50) were to have masks of animals, death, various bloodied costumes depicting butchers and were to wear wooden crosses. the congregation was to pass church buildings as well. the assembly was forbidden due to the possibility of affecting the religious feelings of the faithful. the austrian constitutional court recalled that in the present case it was not appropriate to weigh the individual social interests (values) of the faithful and the participants in the assembly, as the assembly was not to prevent church visitors from accessing it, nor to disrupt religious ceremonies. among other things, he referred to his previous decision, according to which it is incorrect to perceive the cross as an expression of the relationship to religion, but rather as a symbol of western history. he further stated that wearing crosses near the church was not a reason to ban gatherings.27 the german federal constitutional court (bundesverfassungsgericht) assessed techno parties in berlin (“fuckparade” and “loveparade”)28 and came to the conclusion that the purpose of the assessed techno parties was only, or mainly, entertainment and any expressions of opinion were only a negligible ancillary act and therefore the right of assembly was not to be exercised on them, which led to their prohibition. according to the federal constitutional court, the constitutional and legal significance of this right lies in its role in the process of forming public opinion. correspondingly, assemblies are local meetings of several people focused on discussion and speech in order to participate in the formation of public opinion. the purpose of the collective formation of opinion and its collective expression in the given case were not fulfilled, as the invitation of the organizers was only aimed at the participants to come and have fun together. it should be pointed out that the scope of the czech assembly act is wider than presented by the above-mentioned opinion of the german federal constitutional court, as it does not only apply to communication rights (other constitutionally guaranteed rights and freedoms, such as national minorities (černý & lehká, 2010: 16-20). let us also mention the meetings of the “stop genocide” association held in various cities in the czech republic and the slovak republic. this association with very harsh and naturalistic billboards with photographs of aborted fetuses and people killed in wars placed in front of or near schools fought abortion. in the case of these assemblies, two levels can be traced. on the one hand, the organizers were sanctioned for the misdemeanour consisting in provoling public outrage by displaying outrageous photographs. the second level consisted in the dissolution of the assembly on the grounds that offensive photographs attacked the children, as they were deliberately placed near schools. the supreme administrative court of the czech republic stated, inter alia, that the assembly of opponents of abortion, an integral part of which is the display of 27 judgments of the supreme administrative court of 30/12/2012, file no. 2 as 104/2012-35, and of 18/05/ 2017, file no. 9 as 33/2017-16 28 judgment of the german federal constitutional court of 12/07/2001, file no. 1 bvq 28/01, file no 1 bvq 30/01 the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 174 panels with photographs depicting human embryos, fetuses removed from a woman’s body during abortion and people killed in war, genocide and pogroms, i.e. the dissolution in accordance with the czech law on gatherings, if it took place in front of the school attended by children. in such a case, the best interests of the child shall prevail over the right to freedom of assembly.29 the constitutional court of the czech republic ruled on another case of the assembly of the “stop genocide” association that the right to peaceful assembly is a collective exercise of freedom of expression. it is this aspect that can help to stimulate public debate and debate on public affairs, as some citizens do not have the will to publicly present and present their views individually and to try to convince others of their correctness. however, attending the meeting gives them the opportunity to publicly identify with and support their views. constitutional protection is also enjoyed by shocking and outrageous expressions (including visuals) used to stir up public debate, as democracy is based on “trust” in citizens to actively and conscientiously participate in the debate and are able to discern the credibility or acceptability of individual ideas. however, this cannot reasonably be demanded of children, as they, given their moral and mental maturity, must be protected from certain forms of expression that would affect or harass them beyond a tolerable level. the right of everyone to present their views (including outrageous ones) is equated with an interest in children and adolescents not receiving messages that are inappropriate for them. it is therefore up to the convener of the assembly to propose specific measures to enable the assembly to take place without jeopardizing the interests of the children (shocking information panels would be placed in a tent, for example) or assembled in a closed shape so that the person wanted to see, she had to enter this space, while the organizer would prevent small children from entering this such a space. this opinion corresponds with the echr judgment in animal defenders international,30 in which the ban on the broadcasting of drastic animal advertising on television was found to be consistent with freedom of expression. a very similar case of the assembly entitled “stop genocide against the violation of human rights in the world” was dealt with by the constitutional court in slovakia (constitutional court).31 again, it was a matter of exhibiting photographs of victims of genocide and the human fetus after an abortion in an attempt to draw attention to the incorrectness of abortions, this time placed in front of the university. the display of these photographs was qualified by the police to be an offense against public order, as they aroused public outrage. the police demanded their removal, which the convener refused and preferred to end the assembly, as he considered the exhibition to be functional only in its entirety. in its ruling, the constitutional court of the slovak republic stated that it had not found any fact that would reasonably justify the conclusion that the information panels 29 judgments of the supreme administrative court of 30/10/ 2012, ref./ file no. 2 as 104 / 2012-35, dated 18 may 2017, reference 9 as 33 / 2017-16 30 judgment of the echr in the matter of animal defenders international v. the united kingdom of 22/04/2013, complaint no. 48876/08. 31 rozsudek ústavného súdu slovenskej republiky (judgment of the constitutional court of the slovak republic) of 02/06/2009, reference iii. ús 42/09 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 175 with photographs presented during the meeting contained visual representations contrary to the principles of morality, ethics or human dignity. the main difference between the cases handled in the czech republic and slovakia was the placement of information panels, which were once located in front of or near the primary school (czech republic) and could affect relatively young children and in the second case were placed in front of the university (slovakia). 4. relationship to the ownership right while the relationship between freedom of expression and the right of assembly is already relatively well clarified in case law and theory, the problematic in recent years is that of the competition between the right of assembly and the right of ownership. this primarily consists in a situation where the exercise of the right of assembly leads to the use of third-party property (land, buildings) and thus to the restriction of the right of ownership. the question is whether the owner must tolerate the implementation of the assembly on his property and, if so, under what conditions and to what extent. while in germany, much attention has been paid to this issue for several years (fischer-lescano & maurer, 2006: 1394; frau, 2016: 625; kersten & meinel, 2007: 1127; papier, 2016: 1417; prothmann, 2013; schmidt, 2007: 381-383), in the czech republic it has been rather sporadic contributions devoted mainly to the use of public property (roads etc.; jamborová, 2012; balounová, 2019).32 this may also be the case because the provisions of section 5, subs. 4 of the czech assembly act33 unlike the german or austrian assembly act, it states that: “if the assembly is to be held in the open air outside public places, the convener is required to attach to the notification the written consent of the owner or user of the land.” (in greater detail see černý & lehká, 2017: 82-87). according to section 34 of the czech act on municipalities34, public space means all squares, streets, markets, sidewalks, public greenery, parks and other spaces accessible to everyone without restrictions, i.e. serving general use, regardless of ownership of this space. the key feature of a public space is its accessibility to the public, not whether it is privately owned or actually used by the public. according to the current comprehension of the czech assembly act, if the participants of the assembly are not in serious danger to their health or another reason is not fulfilled due to the ban on assembly, they are entitled to use not only sidewalks, but also roads or other areas on which they can move, as it is concerned with a common use of roads.35 to be more precise, the supreme administrative court of the czech republic 32 as well the judgment of the constitutional court of the czech republic of 27/06/2017, reference pl. ús 21/16 33 the slovak assembly act contains the same provision in section 5 subs. 3. 34 act no.128/2000 sb (coll.), on municipalities 35 cf. rozhodnutí ústavního soudu české republiky (resolution of the constitutional court of the czech rep.) of 27/06/2017, reference pl. ús 21/16. the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 176 stated that the czech assembly act presupposes an assembly in the form of a procession along the road (even on the road) and for this purpose sets obligations for the convener to ensure the proper conduct of the assembly, for instance by means of the police, provided that traffic restrictions are also necessary for the for the holding of the assembly.36 however, the above-mentioned provision of section 5, subs. 4 of the czech assembly act does not address all possible conflicts between the ownership right and the right of assembly. in general, the problem of the conflict of these two rights can be divided into several large circles related to the place of assembly. firstly, it is the access of the assembly to public places (owned by the state, municipality or region), secondly, access to privately owned places and thirdly, access to privately owned places, where the owner is a legal person under private law, but with a share of persons governed by public law (e.g. the share of a municipality, region or state in private companies owning a department store, railway station, etc.). the echr also had the opportunity to comment on these conflicts. in the case of appleby v. the united kingdom37 the claimants (complainants) argued that they could not hold a meeting in a city shopping centre belonging to a private person. this shopping centre was built by a legal entity established by the city, which, however, subsequently transferred the center to private hands. the complainants argued that the shopping centre was not only a shopping centre, but also a social centre where people met, and thereby had a number of other functions. in this case, the echr took into account that the centre is marked on maps as an urban centre providing a number of other services and participating in the cultural and social life of the city. the echr stated that due to democratic, social, economic and technological developments, a positive obligation of the state may enforce the implementation of the right of assembly also towards a private entity, especially if it is a private entity in some way connected with a public institution. however, in the present case, he considered that the claimants (complainants) had ample opportunity to exercise their right of assembly without restricting private property, as they could demonstrate (set up an information stand) at the centrer’s entrances, on its galleries or negotiate with individual traders within the centre, they were also able to hold their meetings in the old city centre, which is why the echr did not find there a positive commitment from the state and a violation of article 11 of the echr. the slovak author j. svák (2011: 263) is critical of this judgment, pointing to the development of society and the real privatization of a number of public services provided so far by the state, such as transport, post, energy supply, healthcare. he wonders whether, in this situation, property rights should prevail over other rights and whether the state should ensure a fair balance of these rights. in this case, there was no doubt that the premises were set up from public funds and, even after being transferred to private hands, 36 cf. rozsudek nejvyššího správního soudu (judgment of the supreme administrative court) of 04/09/ 2007, reference 5 as 26/2007-86 37 judgment in the case concerning appleby v. the united kingdom of 06/05/2003, complaint no. 44306/98 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 177 served as a quasi-public space (forum publicum). according to j. svák, public money and public interests were present in this project, which was briefly in private hands in the new building. it was located in the centre near public institutions. as the claimants /complainants/ did not interfere with the running of the centre and did not disrupt its business activities, svák does not find the echr’s decision correct. in his view, it cannot be accepted that privatization will relieve them of their responsibility to ensure fundamental human rights and freedoms through privatization. under the current conditions, in his opinion, it is no longer an unsustainable opinion that a private owner can expel anyone from his land without restraint. the appleby case versus the united kingdom was followed by the recent case of tuskia and others versus georgia38, in which it was a case of assembly held inside the university of tbilisi. during the education reform, educators and others held meetings and other gatherings to discuss and criticize the reform. some assemblies were dispersed by the police at the request of the rector. the complainants argued that the university was not “privately owned” and that the state was therefore obliged to protect their assembly, especially in situations where most of the complainants had the right to be employees on campus. the echr stated, regarding general considerations as to the use of the place of assembly, that on the one hand that i tis part of the right of assembly to choose its place, time and manner, on the other hand the right of assembly does not automatically establish a right of access to private property or unrestricted access to public property, such as the property of ministries or government agencies. in particular, he considered in the case that the violent intentions of the demonstrators had not been identified and that the assembly therefore fell under article 11 of the echr, but during the assembly, which lasted several hours, there was significant interference with the university and its activities. in the light of this circumstance, as well as the fact that the demonstrators were allowed to demonstrate to a sufficient extent and thus fulfill the purpose of the assembly, which was to draw attention to the planned reform, the echr concluded that the subsequent closure of the assembly by the police was appropriate. two decisions of the federal constitutional court in germany, the so-called “fraport”39 “bierdosen-flashmob” cases, made an important contribution to the discussion of the assembly’s entry into private property.40 in the fraport case, the convener wanted to hold a demonstration at frankfurt airport. the airport was operated by the private company fraport ag, in which, however, the city of frankfurt am main, the land of hesse and the federal state of germany had a majority shareholding.41 in the airport buildings, the necessary infrastructure for air traffic was combined with restaurants, shops and similar facilities. the demonstration was banned by fraport ag and the convener was not successful even in civil courts. however, 38 judgment of the echr in tuskia and others v. georgia of 11/01/2019, complaint no. 14237/07. 39 judgment of the german federal constitutional court of 22/02/2011, file no.1 bvr 699/06. 40 judgment of the german federal constitutional court of 18/07/2015, file no.1 bvq 25/15. 41 it is whether or not a public institution has a majority in a private company that j.h. paper is one of the basic conditions for the possibility of interfering with the right of ownership (papier, 2016: 1422). the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 178 the federal constitutional court ruled in favour of the convener. he stated that the right referred to in para 8 (1) of the gg (right of assembly) includes the right to choose the place of assembly. however, that right does not go so far as to allow unrestricted access, since para 8 (1) of the gg extends only to places which are open to general public traffic. public traffic is not where access is individually controlled and limited to individual limited purposes. in such areas, where public communication is also possible, the state cannot relinquish its obligation to protect communication freedoms. this was precisely the case with the airport, as it was also used as a place for conversations, shopping, gastronomy, even for non-travelling guests. in the case of bierdosen-flashmob,42 the rally was to take place in a square in passau. the assembled participants were to pour beer cans together and thus draw attention to the gradual loss of freedoms and the privatization of public space. the whole event was to last about 15 minutes. this gathering was to take place in the part of the square where cafes and restaurants were located, and this place was owned by a private company. this company did not want the assembly and forbade it to the convener, who did not find support in the civil courts, but only in the federal constitutional court. he based his reasoning on the theses presented in the fraport case. here, too, the federal constitutional court took into account that the space was also used for communication, the assembly was to last a short time, it was planned to be stationary and the convener should ensure the cleaning up after the event. in response to that decision, r. frau (2016: 634) points out that with along with the place of assembly its social functiobn must always be considered (similarly mangoldt & klein & starck, 2010: 839). another change brought about by the above-mentioned fraport and bierdose-flashmob judgments is that private law and the rules of protection of property rights must be interpreted in a constitutional manner in the light of the existence of the right of assembly (prothmann, 2013: 201). however, it is critically pointed out that the right of ownership is no lower right (of lower value) than the right of assembly, which should not be automatically preferred, although this follows from the judicature of the federal constitutional court (frau, 2016: 644-645). germany, along with hungary, are included among the states that have extended the right of assembly to areas provided for public access (regardless of ownership) and are thus located on one side of the imaginary scale of access to the right of assembly, most other european states including the czech republic and slovakia adhere to an opinion that it is not possible to hold the meeting on private ownership, but with some exceptions (peters & ley, 2016: 286-287). 42 flashmob is a very short and quick gathering or performance that is convened over the internet (e.g. facebook) and does not need to be organized in order to express something (such as a pillow battle). it is not only in germany that it is a form of action used, and states approach it differently. the main problem is the speed with which the meeting is organized and implemented, including the number of participants, which is difficult to predict. if the meeting lasts literally a few minutes, the reaction of the public authorities is quite limited (peters & ley, 2016: 282-283). petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 179 the scope of the german approach demonstrates the case of counter-demonstration in the cemetery in dresden.43 although it was contrary to the rules of the cemetery to hold any demonstrations, the federal constitutional court’s view had to make an exception in the event of a counter-demonstration against the meeting commemorating world war ii victims, which took place on that day. it was an assembly to which the counter-protesters took a negative stance and wanted to express it in the cemetery, to which, according to the federal constitutional court, they were entitled. in such a case, their counterdemonstration was permissible, although otherwise it would not be possible to hold a meeting in the cemetery. thus, on the one hand, german doctrine still states that article 8 of the gg does not confer the right to assemble on foreign land or on foreign premises and that the owner is not obliged to provide his property for the assembly (jarass & pieroth, 2006: 256; mangoldt & klein & starck, 2010: 839). on the other hand, with regard to the choice of venue, there is already a relatively stable view that the choice of venue is governed by the purpose of the assembly and that the choices are quite wide. the assembly receives the most attention in the place where the criticized problem is present. r. frau (2016: 650) suggests that a compromise should be made in the event of a conflict between the above-mentioned rights, so that if the assembly can be held, for example, on an access (public) route to an object criticized by the assembly and privately owned, the assembly should be held on that path. there is no possibility to choose a meeting place in germany either, as there is a requirement for public access to the meeting place. from this, h.j. papier (2016: 1419) precludes that it is exluded to hold an assembly, for example, in administrative buildings, public swimming pools or hospitals, as they are not open to public traffic without additional conditions of entry. in austria, for example, the case of the occupation of a power plant site by protesters was being addressed. as early as 1994, the high court44 reached a similar conclusion as above, namely that the interests of the demonstrators in the exercise of the right of assembly and the right of ownership of the company operating the power plant should be taken into consideration. however, this view has been criticized (especially at the time), as an assembly that affects third parties in this way can hardly be considered peaceful (without violence), and therefore such an assembly should not be granted constitutional protection (stelzer, 1997; öhlinger, 2009: 412). in the czech republic, the question arose as to how to deal with assemblies that intentionally occupy foreign real estate (squatting). the basic question was whether such an event is an assembly protected by the lps. the action consists of demonstratively occupying abandoned buildings, posting political statements or even holding supporting actions in them, and refusing to leave an occupied building, even through passive resistance. this is obviously not a simple squatting consisting in obtaining housing in abandoned real estate, but at the same time a civic attitude presented externally. 43 judgment of the german federal constitutionsl court of 20/06/2014, file no. 1 bvr 980/13. 44 judgment of the high court (obersgerichtshof) of 25/05/1994, file no. 3 ob 501/94 the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 180 one of the means of maintaining an occupied property is the declaration of its new inhabitants as an assembly protected by constitutional regulations, stating that they are demonstrating a socially important topic. one of the most famous cases in the czech republic is the occupation of villa milada in prague, which became a kind of cultural center after the occupation, but after a few years this property was vacated and squatters expelled. in june 2012, on the occasion of the third anniversary of the eviction of villa milada, several dozen people entered the building through a balcony door on the first floor, where they were producing and listening to music until the police arrived. at the request of the police, they refused to leave the building, barricaded themselves in it and hung a banner with the slogan “3 years and enough, milada”. after that, after unsuccessful negotiations, the police were made to force in and end the operation. from the point of view of the right of assembly, it is interesting that this event was not defined as an assembly, because there was no unifying element of the assembly. its participants acted as individuals and they were acting for themselves. the squatters themselves emphasized the amusing nature of the event and their focus on maintaining the property. regarding the conduct of these persons, the supreme administrative court45 stated, inter alia, that: “although political and other assemblies are usually held in public places, it can certainly not be ruled out that the assemblies may be held elsewhere. this is evidenced both by the judicature of the european court of human rights (cf. the abovecited judgment in the case concerning cissé v. france, where participants gathered in the church, and the czech historical experience used for the exchange of political and philosophical views between their participants). in these cases, however, it was always a space that was not fully publicly accessible, but the meeting was held with the knowledge and consent of its owner or authorized user. one can certainly imagine a situation where the participants of the meeting, with regard to the absence of some other suitable space or with regard to the message of the whole event, choose as the meeting place without the owner’s knowledge or with his patience, such as private land or dilapidated building, which is virtually and freely accessible for anyone. however, as the municipal court rightly pointed out, the situation is different in this case, as a group of participants in the food not bombs event arbitrarily occupied the building after consulting the owner, which was secured against forcible entry at the time of the event. in order to occupy the building, they had to overcome a number of physical obstacles using a ladder to penetrate the balcony of the villa, breaking the lattice and cutting a hole leading in. in a democratic society, it is difficult to accept and judicially protect, as an exercise of the right of assembly, an attempt to enforce one’s views and values by force, regardless of the rights of others.” in relation to the occupation of buildings as a form of assembly, the echr judgment in the case of cissé v. france is cited above.46 in this case, however, it was a very specific situation where, with the consent of the ecclesiastical authorities, french immigrants occupied and inhabited the french church for a long time in order to draw 45 judgment of the supreme administrative court of the czech republic of 01/03/ 2007, file no. 6 as 256/2016-79, par. 31, 32 46 judgment of the echr in the case concerning cissé v. france of 09/04/2002, complaint no. 51346/99 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 181 attention to the disproportionately strict french immigration laws and to demand their change. following the deterioration of the hygiene situation, the assembly was disbanded by the french police operation, which the echr found to be a legitimate reason for closing the assembly. 5. conclusion as a result of its common history, the approaches of all the studied states are similar in the basic aspects of the right of assembly, but they still differ. in germany, the emphasis is on the assembly being a means of exchanging views and attitudes, either internally or externally, emphasizing the role of the assembly in shaping public opinion. in the czech republic and slovakia, the demand for orientation towards the formation of public opinion is not so strong, and assemblies exercising other rights and freedoms, such as religious or cultural rights, are also considered assemblies. in all states, however, i tis impossible to consider an assembly under the constitutional protection as an assembly intended solely for entertainment or sport. on the contrary, the echr considers such events to be assemblies under the protection of the convention, thus creating a conflict between the scope of protection afforded by the constitutional requirements of those states and the scope of protection afforded by the convention. the right of assembly as a lex specialis to freedom of expression is applied in accordance with the judicature of the echr and the case law of the examined states work regulary with the judicature of the echr. it is of great interest to look at the limits of freedom of speech always in specific cases, because it is not possible to specify the limits of admissibility of speech at the assembly. in relation to the conflict of property rights with the assembly, we can state that as follows from the case law of the echr and the german federal constitutional court or the supreme administrative court of the czech republic, the assembly may be held on private property, even against the will of the owner, such as for economic reasons) their property for use by the public. in particular, these are shopping centers, airports, railway stations, etc. it is clear that in some cases the right of ownership must cease and is not inherently unlimited, but when this is to happen has it yet been comprehensively and satisfactorily resolved in any of the countries examined or case law. the echr, by virtue of the fact that the number of cases that have been reviewed by the supreme courts or the echr is too small. references: bachmann, s., baumgartner, g., feik, r., (2000) besonderes verwaltungsrecht. wien: springer verlag. balounová, j., (2019) veřejné užívání versus shromažďovací právo. právní rozhledy, no. 13-14, 496-504. bartoň, m. et al., (2016) základní práva. praha: leges. the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 182 černý, p., (2016) ještě k blokačním shromážděním. právní rozhledy, no. 11, 408-413. černý, p., lehká, m., (2010) zákon o právu shromažďovacím: commentary., praha: c. h. beck. černý, p., lehká, m., (2017) zákon o právu shromažďovacím. praha: c.h.beck, 2nd revised ed. dreier, h. et al., (2004) grundgesetz. kommentar. band i., tübigen: mohr siebeck. düring friedl, c.; enders, ch., (2016) versammlungsrecht: die versamm lungsgesetze des bundes und der länder. kommentar, münchen: c.h.beck. filip, j., (1998) dogmatika svobody projevu z hlediska teorie, legislativy a soudní praxe. časopis pro právní vědu a praxi, no. 4, 618 – 637. fischer-lescano, a., maurer, a., (2006) grundrechtsbindung von privaten betreibern öffentlicher räume. neue juristische wochenschrift, no. 20, 1394-1401 frau, r., (2016) versammlungsfreiheit und privateigentum. rechtswissenschaft, no. 4, 625-634. https://doi.org/10.5771/1868-8098-2016-4-625 gericke, j., (2016) 30 jahre brokdorf – beschluss. versammlungsrecht quo vadis?. öffentliche verwaltung, no. 22, 948-965. haas, p., (2015) not to meat march on holy saturday. vienna journal on international constitucional law, no.3, 432-435. inazu, j.d., (2010) the forgotten fredom of assembly. tulane law review, no. 84, p. 565, https://scholarship.law.duke.edu/faculty_scholarship/2116 jamborová, k., (2012) výkon práva shromažďovacího na pozemních komunikacích. právní rozhledy, no. 23-24, 849-852. jarass, d. h., pieroth, b., (2006) grundgesetz für bundesrepublik deutschland. kommentar. c.h.beck: münchen. kersten, j., meinel, f., (2007) grundrechte in privatisierten öffentlichen räumen. juristen zeitung, no. 23, 1127-1130. https://doi.org/10.1628 /00226880 7783261154 kniesel, m.; poscher, r., (2004) die entwicklung des versammlungsrechts 2000 bis 2003. neue juristische wochenschrift, no. 7, 422-425. mangoldt, h., klein, f., starck, ch., (2010) kommentar zum grundgesetz. münchen: franz vahlen. molek, p., (2014) politická práva. praha: wolters kluwer. öhlinger, t., (2009) verfassungsrecht, wien: wuv-universitätsverlag. papier, h., j., (2016) aktuelle probleme des versammlungsrecht. deutsches verwaltungsblatt, no. 22, 1417-1421. https://doi.org/10.1515/dvbl-2016-2203 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 183 peters, a., ley i., (2016) the freedom of peaceful assembly in europe. baden-baden: nomos verlag. https://doi.org/10.5771/9783845266084 petkuviene, r., atraškevičiute, a., (2012) enforcement of freedom of asembly in lithuania and european union: legal and practical aspects. jurisprudencija, no. 1, 51-58. potměšil, j., jamborová, k., (2017) změny shromažďovacího práva po velké novele. správní právo, no. 5, 223-229. prothmann, m., (2013) die wahl des versammlungsortes. berlin: duncker humblot. schmidt, r., (2007) besonderes verwaltungsrecht ii., polizeiund ordnungsrecht, verwaltungsvollstreckungsrecht, versammlungsrecht. grasberg bei bremen: rolf schmidt gmbh. stein, e., (1998) staatsrecht. tübigen: mohr siebeck. stelzer, m., (1997) stand und perspektiven des grundrechtsschutzes, in 75 jahre bundesverfassung. festschrift aus anlaß des 75. jahrestages der beschlussfassung über das bundes-verfassungsgesetz. wien: verlag österreich. svák, j., (2011) ochrana l’udských práv v troch zväzkoch, vol. iii, žilina: eurokodex. výborný, š., (2015) shromažďovací právo v bránící se demokracii, dissertation thesis, the faculty of law of masaryk university. available from https://theses.cz /id/io664v/?lang=en wagnerová, e., šimíček, v., langášek, t., pospíšil, i. et al., (2012) listina základních práv a svobod. commentary. praha: wolters kluwer. walter, r., mayer, h., (1987) grundriβ des besonderen verwaltungsrechts. wien: manzsche verlag. wieser b., (2012) einführung in das verfassungsund verwaltungsrecht. wien: verlag österreich. winkler, g., (1991) studien zum verfassungsrecht. wien: springer verlag. https:// doi.org/10.1007/978-3-7091-6716-8 case law: the european court of human rights: alexeyev v. russia, 21/10/2010, no. 4916/07, 25924/08, 14599/09 animal defenders international v. the united kingdom of 22/04/2013, no. 48876/08 appleby v. the united kingdom of 06/05/2003, no 44306/98 bączkowski and others v. poland, of 03/05/2007, no. 1543/06 the right of assembly in central europe the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 184 barankevich v. russia of 26/07/2007, no. 10519/03 cissé v. france of 09/04/2002, no. 51346/99 djavit an v. turkey of 20/02/2003, no. 20652/92 feldek v. slovakia of 12/07/2001, no. 29032/95 gypsy council v. the united kingdom of 14/05/2002, no. 66336/01 sergey kuznetsov v. russia of 23/10/2008, no. 10877/04 stankov and ilinden, the united macedoniaan organization v. bulgaria of 02/10/2001, no. 29221/95 and no. 29225/95 tuskia and others v. georgia of 11/01/2019, no. 14237/07 yilmaz and kiliç v. turkey of 17/07/2008, no. 68514/01 decision of the european commission of human rights: rassemblement jurassien unité jurassienne v. switzerland of 10/10/1979, no. 8191/78 decision of the federal constitutional court of germany: of 12/07/2001, 1 bvq 28/01, 1 bvq 30/01 of 22/02/2011, 1 bvr 699/06 of 20/06/2014, 1 bvr 980/13 of 18/07/2015, 1 bvq 25/15 decision of the constitutional court of the czech republic: of 10/071997, iii. ús 359/96 of 15/03/2005, i. ús 367/03 of 11/11/2005, i. ús 453/03 of 17/07/2007, iv. ús 23/05 of 20/05/2014, iv. ús 1511/13 of 03/02/2015, ii. ús 2051/14 of 27/06/2017, pl. ús 21/16 of 11/06/2018, i. ús 4022/17 decision of the supreme administrative court of the czech republic: of 04/09/2007, 5 as 26/2007-86 of 30/10/2012, 2 as 104/2012-35 petr černý the age of human rights journal, 15 (december 2020) pp. 163-185 issn: 2340-9592 doi: 10.17561/tahrj.v15.5786 185 of 01/03/2017, 6 as 256/2016-79 of 18/05/2017, 9 as 33/2017-16 decision of the constitutional court of austria: of 11/03/2014, e 717/2014 decision of the constitutional court of theslovak republic: of 02/06/2009, iii ús 42/09 received: may 18th 2020 accepted: july 13th 2020 articles petr černý the right of assembly in central europe 1. introduction 2. the concept of assembly 3. reationship to freedom of expression 4. relationship to the ownership right 5. conclusion references case law microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 245 myanmar media: legacy and challenges maria ochwat* abstract: for nearly fifty years myanmar was ruled by a military junta. it did not tolerate any criticism, and severely punished anyone who dared to oppose them. at the same time, it cut the country off from the rest of the world, preventing it from being informed about burma’s internal situation. the announcement of the changes came when thein sein’s first civilian government was formed in 2011. almost 10 years have passed since then and myanmar, according to the press freedom index, is considered to be one of the countries where freedom of speech and freedom of the media are commonly violated and journalists are often persecuted and punished. freedom of expression is one of the pillars of a democratic society, the basis for its development and a condition for the self-fulfillment of the individual. one of the most important ways of exercising freedom of speech is through free and independent media. the issue of respect for freedom of expression and freedom of the media must be seen in a broader context. it should be noted that there is a close link between respect for human rights and peacekeeping. although freedom of expression, and thus freedom of the media, is one of those freedoms which may be restricted in specific situations, it cannot be done arbitrarily. under public international law the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. the authorities of myanmar, when introducing and maintaining restrictions on freedom of speech and media, often invoke the need to restrict freedom of speech and media for reasons of state security, protection of morality or public order. however, one can venture to say that they are in fact afraid of criticism and possible public actions against the current authorities. keywords: press freedom, freedom of speech, human rights, myanmar, media, democracy, security. summary: 1. myanmar media legacy and challenges. 2. outline of myanmar’s social and political situation since 1962. 3. situation of the media until the end of 2011. 4. media situation since 2012. 5. recommendations for myanmar to guarantee respect for media freedom. 6. conclusion. 1. myanmar media legacy and challenges as the european court of human rights in strasbourg stated in handyside's judgment against the united kingdom, “freedom of expression is one of the pillars of a democratic society, the basis for its development and a condition for the self-fulfilment of the individual. […] it cannot cover only information and views that are favourably received, or perceived as harmless or indifferent, but also those that insult, outrage or cause concern in the state or in a group of society. these are the requirements of pluralism, tolerance and openness without which a democratic society does not exist”.1 * phd, wyzsza szkola bankowa, poznan, poland (mochwat@gmail.com). 1 case of handyside v. the united kingdom (application no. 5493/72), https://hudoc.echr.coe . int/eng#{“itemid“:[“001-57499”]}, (25.01.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 246 although freedom of expression, and thus freedom of the media, is one of those freedoms which may be restricted in specific situations, it cannot be done arbitrarily. under public international law the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.2 the european court of human rights in strasbourg points out that there is no uniform concept of morality and that therefore the authorities of a given country, due to the constant exposure to the problems in question, can often better assess the requirements for “protection of morality” in their country. therefore, the provisions of public international law allow in this regards a certain degree of discretion for individual states. however, it should be borne in mind that this freedom is not unlimited, since the restrictions or sanctions applied must be consistent with the obligation to protect freedom of expression. thus, the assessment from the point of view of respect for freedom of expression in a given state will concern the purpose of implementing the restriction, the means used and their necessity.3 one of the most important ways of exercising freedom of speech is through free and independent media. freedom of the media means the functioning of the press and printing without legal and political restrictions or interference by censorship.4 press freedom is also understood as the freedom of non-printed media, such as radio, television or the internet.5 the guarantees that should be given to the media are particularly important. although the media may not cross certain boundaries, inter alia in the interests of protecting the reputation and rights of others, they are obliged to communicate information and ideas of public interest. the media have the task not only of communicating, the public also has the right to receive it. if it were otherwise, the media could not play an important role as a public observer.6 for nearly fifty years myanmar was ruled by a military junta. it did not tolerate any criticism, and severely punished anyone who dared to oppose them. at the same time, it cut the country off from the rest of the world, preventing it from being informed about burma’s internal situation. the announcement of the changes came when thein sein’s first civilian government was formed in 2011. almost 10 years have passed since then and 2 art. 10.2, european convention of human rights, p.12, https://www.echr.coe.int/documents/convention _eng.pdf, (30.03.2020). 3 case of handyside… 4 press, free [w:], g.w. sheldon, encyclopedia of political thought, new york: facts on file, inc, 2001, p. 240-241. 5 j.r. lewis, freedom of the press [w:] the human rights encyclopedia, j.r. lewis, c. skutsch, armonk, new york, 2001, p. 721-723. 6 case of bladet tromsø and stensaas v. norway (application no. 21980/93), https://hudoc .echr.coe.int/eng#{“itemid“:[“001-58369”]}, (25.01.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 247 myanmar, according to the press freedom index, is considered to be one of the countries where freedom of speech and freedom of the media are commonly violated and journalists are often persecuted and punished. hasn’t then the joy of the 'burmese spring' turned out to be premature? this article aims to discuss the issue of media freedom from 1962 to the end of 2019. the author argues that: “despite the promises of thein sein’s government to respect freedom of speech, the situation has not improved, and journalists are threatened with repression in connection with their public observer mission.” the article is divided into four parts. to ensure that this freedom does not remain in void –in the first part– it seems appropriate to refer to the political, social and economic situation in myanmar from the 1962 military takeover to the present day. the second part will present the situation regarding respect for freedom of the media until the formation of thein sein’s government in 2011, and the third part will present the situation from that event until the end of 2019. part four will include recommendations for myanmar to improve the situation of media freedom in the country. the right choice of methods will help to achieve this goal. the following research methods will be mainly used in the article: historical, comparative, case study, behavioural (including above all the technique of document analysis). 2. outline of myanmar’s social and political situation since 1962 burma’s modern history is marked by several decades of military rule, major human rights violations and armed conflicts. after 12 years of parliamentary democracy (1948–1962),7 on march 2, 1962 a coup d’état took place, as a result of which a military junta, headed by general ne win, took over the state government. this coup was a motivated by the desire to protect the state from the threat of breakdown due to ethnic conflicts and, at the same time, to abandon the incompetent and corrupt civilian rule and to strengthen the socialist economy, while abandoning foreign capital.8 as they claimed: the man will not “[…] be set free from social evils as long as pernicious economic systems exist in which man exploits man and lives on the fat of such appropriation”. in their opinion, creating such a reality is possible “only when exploitation of man by man is brought to an end and a socialist economy based on justice is established; only then can all people, irrespective of race or religion, be emancipated from all social evils and set free from anxieties over food, clothing and shelter, and from inability to resist evil, for an empty stomach is not conducive to wholesome morality, as the burmese saying goes; only then can an affluent stage of social development be reached and all people be happy and healthy in mind and body”.9 they announced the 7 h. james, security and sustainable development in myanmar, routledge taylor & francis group, london and new york, 2005, p.3. 8 d.i. steinberg, burma/myanmar what everyone needs to know, oxford university press, 2010, p.63. 9 the burmese way to socialism, https://www.burmalibrary.org/sites/burmalibrary.org/files/obl/docs/the _burmese_way_to_socialism.htm, (10.02.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 248 elimination of, among other “fraudulent practices, profit motive, easy living, parasitism, shirking and selfishness”, “bogus piety and hypocritical religiosity”, bureaucracy, as well as strengthening the armed forces, modernising agricultural production, which is the basis of the national economy, solidarity of all ethnic minorities or introducing mainstream primary education.10 in practice, the programme has proved a complete failure, leading the country into economic ruin and isolation from the world.11 there was only one party in the state, the burma socialist programme party (abbreviation: bspp), there was no political opposition whatsoever. visas for foreigners were introduced (but the possibility of movement was very limited), the activity of the media was severely restricted. the communications infrastructure was inadequate. the burmese had few international contacts, some shortwave radios, but there was no television. all books and magazines entering the country were controlled. all local media were censored.12 although in 1974, under the new constitution, governance was entrusted to the people's assembly, in fact it was exercised by ne win. this document only codified the military control over a state.13 their policies had only exacerbated relations with ethnic minorities and led to the spread of ethnic insurrections.14 the situation became more serious in 1982 when the military completed the final exclusion of indian and chinese foreigners from any possibility of assuming official power. under the burma citizenship law, a three-tiered system of citizenship was established. full citizens were those who were burman or a member of one of the indigenous ethnic/linguistic groups or those who could prove they were descendants of residents who had lived in what was burma in 1823 (before the start of the first anglo-burmese war, 1824–1826). they could be elected to office and assume government posts. one did not lose this class of citizenship by marrying a foreigner. the associate citizens, such as indians and chinese, were those who were born in the country after that time. and finally, the third group was composed of naturalized citizens. there was to be no dual citizenship. then, the so-called associate citizenship could be revoked if someone were disloyal to the state “by act or speech or otherwise,” or because of moral turpitude or disclosure of state secrets. this extremely discriminatory law allowed only full citizens could run for office or qualify for certain economic and governmental positions and become members of the party. those in the two lesser categories not only could hold any bureaucratic or military positions, vote, but were also denied higher education.15 at the same time, it should be noted that the indigenous muslim rohingyas near the bangladesh border were never considered as any type of citizens and were excluded from any list of ethnic groups. they have become the most deprived group in the state.16 10 ibidem. 11 w. mcgowan, world policy journal, vol. 10, no. 2,1993, p. 47-56, http://williammcgowan.com/pdf /worldpolicyjournal-burmesehell.pdf, (30.01.2020). 12 d.i. steinberg, burma/myanmar…, p.68. 13 constitution of myanmar, https://www.burmalibrary.org/docs07/1974constitution.pdf, 02.01.2020. 14 crimes in burma, a report by international human rights clinic at harvard law school, p. 11. 15 burma citizenship law 1892, https://www.refworld.org/docid/3ae6b4f71b.html, (10.01.2020). 16 d.i. steinberg, burma/myanmar…, p.74. maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 249 in 1974-77 there were more and more anti-government demonstrations, each time bloodily suppressed by the military junta. the dramatically deteriorating economic and political situation led to the establishment in 1988 of the so-called “8888 nationwide popular pro-democracy protests”, also known as the 8-8-88 uprisings, the people power uprising, the people’s democracy movement and the 1988 uprising. they have conducted a series of nationwide protests, marches and civil unrest against the politics of the military junta. initially the movement consisted of students, soon joined by monks and other social groups.17 the uprising ended on 18 september 1988 after a bloody military coup by the state law and order restoration council (slorc). the slorc introduced martial law, arrested thousands of demonstrators, including democracy activists and human rights defenders. in addition, the state was renamed to myanmar, and the leader of a party national league for democracy party (nld), which was gaining increasing public support, aung san suu kyi was put under house arrest.18 it is assumed in primary sources that it was in fact a “military transfer of power, in a sense a “coup by consent” and it was designed to continue military control by alternative means. the previous military government that had become civilianized through the burma socialist programme party (bspp) had economically failed.19 the slorc announced the following objectives: to ensure law and order; safe transportation and communication; adequacy of food; housing and other essential needs and –what seems to be most important– to prepare for the holding of multi-party elections.20 and so, on 27 may 1990 parliamentary elections were held, which saw the admission of 93 political groups of 87 independent candidates.21 as david steinberg claims, the election was not meant to form a parliamentary government, but rather to form a parliament-sized constitutional committee to draft a new constitution.22 although much of the opposition was imprisoned or under house arrest, the military junta suffered a crushing defeat. the nld won a landslide victory, taking approximately 60% of the popular vote and 392 seats (out of 492)23 in the burmese constitutional committee. however, the military junta refused to recognise the results, suppressing the protests of the supporters of democracy.24 17 e. meixler, how a failed democracy uprising set the stage for myanmar’s future, https://time.com/5360637 /myanmar-8888-uprising-30-anniversary-democracy/, (20.01.2020). 18 crimes in burma, a report…, p 7-11. 19 d.i. steinberg, burma/myanmar…, p.82. 20 s. sundararaman, from slorc to spdc: political continuity versus economic change in myanmar, https://www.idsa-india.org/an-jan10.html, 15.01.2020. 21 d.i. steinberg, burma/myanmar…, p. 91. 22 ibidem, p. 90-93. 23 myanmar parliamentary chamber: pyithu hluttaw, elections held in 1990, http://archive.ipu .org/parline-e/reports/arc/2388_90.htm, (10.01.2020). 24 d. tonkin, the 1990 elections in myanmar: broken promises or a failure of communication?, contemporary southeast asia, vol. 29, no. 1 (april 2007), p. 33-54, https://www.jstor.org/stable/25798813 ?seq=1, (10.01.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 250 with the end of the cold war and the award of the 1991 nobel peace prize to aung san suu kyi25 burma's interest in the international scene increased. in the same year the united nations adopted its first resolution on burma,26 and in 1992, the human rights committee has expressed concern about the dramatic human rights situation in the country.27 the special envoy’s report in 1993 identified, inter alia, human rights violations such as torture, cruel, inhumane treatment or punishment, “disappearances”, arbitrary executions, unlawful arrests and detentions.28 in 1997 slorc changed its name to the state peace and development council and burma was admitted to asean.29 despite the release of a number of political prisoners in subsequent years, the situation in the country remained tense. in 2003 khin nyunt became prime minister, who proposed to hold convention in 2004 on drafting a new democratic constitution. the convention was boycotted by the nld. the prime minister was accused of corruption and removed from the office. tensions were also growing between the spdc and ethnic minorities.30 as a result of the deteriorating economic and political situation, buddhist monks initiated the so-called saffron revolution of 2007, bloodily suppressed by military rule. official burmese sources reported thirteen deaths,31 but there were probably a lot more. the united nations has spoken of about thirty to forty victims among monks and fifty to seventy civilians,32 and burma's democratic voice of nearly a hundred and forty. many demonstrators were also detained and imprisoned (according to various sources from one thousand to even six thousand). despite the condemnation by the united nations authorities and numerous states, the military junta remained indifferent to it and unpunished.33 however, it has become clear to the authorities that certain changes will become necessary. thus, a few months later, the military junta passes a new constitution. although 25 aung san suu kyi biography, https://www.nobelprize.org/prizes/peace/1991/kyi/lecture/, (10.01.2020). 26 situation in myanmar : resolution / adopted by the general assembly, https://www.refworld.org/docid /3b00efe1c.html, (10.01.2020). 27 un commission on human rights, situation of human rights in myanmar, 10 march 1993, e/cn.4/ res/1993/73, https://www.refworld.org/docid/3b00f0c520.html (15.01.2020). 28 report on the situation of human rights in myanmar / prepared by yozo yokota, special rapporteur of the commission on human rights, in accordance with commission resolution 1992/58, https://digitallibrary .un.org/record/159740, (16.01.2020). 29 crimes in burma. a report…, p. 12-17. 30 n. ganesan, kyaw yin hlaing, myanmar state, society and ethnicity, institute of southeast asian studies, singapore, 2007, p. 24. 31 k. percy, more protesters arrested as curfew orders ignored, http://www.abc.net.au/news/2007-09-28 /more-burma-protesters-arrested-as-curfew-orders/684316, (26.06.2012). 32 myanmar: un rights expert to probe allegations of abuses during crackdown http://www.un.org/apps /news/story.asp?newsid=24405&cr=myanmar&cr1=#.ukdjmhzyqyq, (22.08.2012). 33 100 000 protestors flood street of rangoon in “saffron revolution”, http://www.novinite.com/view _news.php?id=85644, (26.06.2012) and burma’s saffron revolution is not over, http://www.ituc-csi.org /burma-s-saffron-revolution-is-not?lang=en, (26.06.2012). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 251 the junta reserved the right to guarantee a quarter of the seats in parliament and three strategic ministries (internal affairs, defence and foreign affairs), it nevertheless began a series of reforms.34 the first general parliamentary elections in twenty years were held in 2010. this event was hailed by the military junta as the first step towards democracy. however, opposition groups, including the nld, boycotted the elections. this was because, according to the rules adopted at the time, those with convictions were not allowed to belong to political parties and thus to stand for election. those regulations also ruled out participation in the elections of persons who married foreigners. by introducing that type of regulations, the military junta wanted to force the nld to throw aung san suu kyi out of its ranks, who was becoming increasingly popular in the country. the aforementioned laws also prohibited religious groups and officials from joining political parties, even though buddhist monks have repeatedly advocated the introduction of democratic rule, for example during the aforementioned saffron revolution.35 the first civilian government was formed in march 2011, headed by thein sein, who was nominated by the military junta. nevertheless, he declared that he wanted to disassociate himself from the policies of his predecessors, free political prisoners and take steps towards economic liberalisation.36 the opportunity to participate in the parliamentary elections for the nld came in april 2012. these were by-elections in which the nld won 43 seats. still, the victory of the nld can be seen as a step towards democracy.37 in 2015, elections to both chambers of parliament as well as regional and state assemblies were held. for the first time international observers were allowed to participate in the elections. despite the rather restrictive provisions of the military constitution of 2008 (according to which a candidate to the parliament could not be a person who was declared bankrupt by the court, as well as a person with dual citizenship, and the voting rights were deprived of convicts, monks, bankrupts, persons who committed crimes related to the election, as well as incapacitated, foreigners and persons with double citizenship). the national league for democracy (nld) obtained a majority of the total seats in both the house of nationalities and the house of representatives of the assembly of the union. similarly, the nld also received a majority of total combined seats in the state and regional hluttaws, including 21 of 29 ministers of ethnic affairs. htin kyaw, a close associate of aung san suu kyi, became president the following year. she herself, under the provisions of the said constitution, could not run for office. among other 34 bomb kills ethnic rebel, injures 4 others in burma, http://usatoday30.usatoday.com/news/world/2008-01 -13-burma-explosion_n.htm, (26.06.2012). 35 burma law formally bars aung san suu kyi from election, http://news.bbc.co.uk/2/hi/asia-pacific /8559048.stm, (22.06.2012). 36 daw aung san suu kyi, http://topics.nytimes.cyom/top/reference/timestopics/people/a/daw_aung_san _suu_kyi/index.html, (26.06.2012). 37 k. olarn, myanmar confirms sweeping election victory for suu kyi’s party, http://www.cnn.com/2012/04 /04/world/asia/myanmar-elections/index.html, (26.06.2012). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 252 requirements, the presidential candidate could not be a person whose closest members are foreign citizens (she was married to michael aris, a british citizen with whom she had two sons).38 on 30 march 2016 she became minister for the president's office, for foreign affairs, for education and for electric power and energy in president htin kyaw's government; later she relinquished the latter two ministries and president htin kyaw appointed her state counsellor, a position similar to a prime minister created especially for her. the position of state counsellor was approved by the house of nationalities on 1 april 2016 and the house of representatives on 5 april 2016. aung suu kyi became de facto leader in 2016, in a “state counsellor” role.39 in the second half of 2016, burmese army troops began to pacify regions in the western part of the country inhabited by the rohingya muslim minority. in 2018 myanmar’s military leaders were accused by the united nations of carrying out genocide, war crimes, and crimes against humanity against rohingya muslims, calling for six generals to face trial at the international criminal court. it also accuses aung san suu kyi of failing to prevent the violence. myanmar rejects the findings. in 2018, canadian parliamentarians, took back her honorary citizenship of the country, and amnesty international, the ambassador of conscience award “for the shameful betrayal of the values the leader of myanmar once represented”.40 myanmar now faces a lawsuit at the international court of justice (icj) in the hague, and aung san suu kyi has travelled to the netherlands to fight the charges of genocide levelled against her country.41 in january 2020, the court's initial ruling ordered the country to take emergency measures to protect the rohingya from genocide.42 according to the myanmar constitution of 2008 myanmar is an independent sovereign nation. the sovereign power of the union is derived from the citizens and is in force in the entire country. in the country “practises genuine, disciplined multi-party democratic system”. in the country we are dealing with the separation of powers. the legislative power of the union is shared among the pyidaungsu hluttaw, region hluttaws and state hluttaws. on the other hand, the executive power of the union is shared among the pyidaungsu, regions and states. the head of the union and the head of executive of the union is the president, whereas the judicial power of the union is shared among the 38 the myanmar elections: results and implications, https://www.burmalibrary.org/docs21/icg-2015-12-09 -the-myanmar-elections-results-and-implications-en-red.pdf, (16.01.2020) and constitution of myanmar… 39 w. moe, r. c. paddock aung san suu kyi moves closer to leading myanmar, https://www.nytimes.com /2016/04/06/world/asia/myanmar-aung-san-suu-kyi-state-counselor.html, (01.02.2020). 40 https://www.amnesty.org/en/latest/news/2018/11/amnesty-withdraws-award-from-aung-san-suu-kyi/, (02. 02.2020). 41 myanmar’s aung san suu kyi takes the stand , https://foreignpolicy.com/2019/12/12/myanmars-aung -san-suu-kyi-takes-the-stand/, (20.01.2020). 42 s. van den berg, p. ruma, world court orders myanmar to protect rohingya from acts of genocide, https://www.reuters.com/article/us-myanmar-rohingya-world-court/world-court-orders-myanmar-to -protect-rohingya-from-acts-of-genocide-iduskbn1zm00h, (17.02.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 253 supreme court of the union, high courts of the regions, high courts of the states and courts of different levels including courts of self-administered areas. the constitution also safeguards a number of human rights. and so, every citizen shall enjoy the right of equality, the right of liberty and the right of justice, as prescribed in this constitution. there is also a prohibition on detaining a citizen in custody for more than 24 hours without the permission of a court.43 at the same time the state guarantees any person the right to enjoy equal rights before the law and equal legal protection. there is also a prohibition to discriminate against any kind of citizen of the state, based on race, birth, religion, official position, status, culture, sex and wealth, as well as freedom of speech and expression, freedom of assembly and association, the right to preserve one's culture and use one’s goods, freedom of movement and the right to choose one’s place of residence, the right to protection of privacy and security of home, property, correspondence and other communications of citizens. although buddhism has been recognised as a state religion, other religions are also respected, and any attempt to misuse religion for political purposes is prohibited. in addition, the constitution guarantees the right to education, health care, the right to carry out scientific research and economic activities, prohibits human trafficking and slavery.44 it is worth noting that the constitution does not guarantee the citizens’ right to information about the government's actions. during the period of censorship, the government would not inform the public about its actions, and if it did, with discretion primarly via state-owned media.45 the exercising of human rights may be restricted in the event of states of emergency and if, in the opinion of the authorities, this would be contrary to the applicable law, security, prevalence of law and order, community peace and tranquillity or public order and morality.46 myanmar, like many other asian countries, rarely ratifies international human rights acts. the following have been ratified: convention on the elimination of all forms of discrimination against women, international covenant on economic, social and cultural rights, convention on the rights of the child, optional protocol to the convention on the rights of the child on the involvement of children in armed conflict, optional protocol to the convention on the rights of the child on the sale of children child prostitution and child pornography, convention on the rights of persons with disabilities. at the same time there is no acceptance of individual complaints procedures as well as acceptance of the inquiry procedure for myanmar.47 in 2011, the myanmar national human rights commission, under the myanmar national human rights commission law was formed with the aim of uplifting and protecting the fundamental rights of citizens included in the constitution of the republic 43 constitution of myanmar… 44 ibidem. 45 assessment of media development in myanmar, ipdc the international programme for the development of communication, p. 15-16, http://www.unesco.org/new/en/communication-and-information/resources /publications-and-communication-materials/publications/full-list/assessment-of-media-development-in -myanmar/, (10.01.2020). 46 constitution of myanmar… 47 un treaty database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/treaty.aspx?countryid =119&lang=en, (25.02.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 254 of the union of myanmar.48 it was to be an independent body, to investigate complaints of possible human rights violations. in practice, however, its actions proved to be ineffective. representatives of civil society accuse it, among other things, of refusing to investigate cases of the arrests of 275 civilians and the killings of six civilians by the myanmar military in rakhine state in 2019 or the murders of two ethnic kachin villagers in 2018, as well as concerning protection of human rights in the cases of the performers in the daungdohmyoset (peacock generation) thangyat troupe (thangyat is a traditional myanmar performing art). the performers have been sued several times by the military in different jurisdictions for criticizing the military in their satirical performances.49 there are serious human rights violations in myanmar. according to international human rights organisations, such as human rights watch and amnesty international, it is primarily the persecution of the rohingya minority or violations of freedom of speech and expression. civilians are endangered by the military’s indiscriminate attacks, forced displacement, and aid blockages. farmers continue to face threats and arrests for protesting unresolved confiscation claims and for farming the land they claim.50 moreover, restrictions on the rights to freedom of expression, association, and peaceful assembly continued. authorities continued to arbitrarily arrest and detain human rights defenders as well as other peaceful activists. impunity persisted for perpetrators of human rights violations and crimes under international law. myanmar retains the death penalty in law, but hasn’t executed for at least 10 years.51 myanmar has 56,590,071 inhabitants (july 2020 est.) and is therefore the 25th largest country in the world in terms of population. according to the government, the country is inhabited by 135 ethnic minorities, of which the largest group are: burman (bamar) 68%, shan 9%, karen 7%, rakhine 4%, chinese 3%, indian 2%, mon 2%, other 5%.52 the majority of the society are the buddhist 87.9%, the reset are: christian 6.2%, muslim 4.3%, animist 0.8%, hindu 0.5%, other 0.2%, none 0.1% (2014 est). as of december 2019, muslims probably make up less than 3% of burma's total population due to the large outmigration of the rohingya population since 2017.53 in 2014 the first national census in 30 years was conducted in myanmar. according to it, its population was 51 486 253 people. however, it should be noted that the rohingya minority, whose number in the country, according to the rights groups, is approximately 800 000, was deliberately omitted from the census.54 the vast majority of the population 48 republic of the union of myanmar. myanmar national human rights commission, http://www.mnhrc .org.mm/en/about/about-the-commissioner/, (11.02.2020). 49 z. z. htwe, myanmar human rights commission ineffective, needs reform: civil society groups, https://www.irrawaddy.com/news/burma/myanmar-human-rights-commission-ineffective-needs-reform -civil-society-groups.html, (11.02.2020). 50 burma, https://www.hrw.org/world-report/2019/country-chapters/burma, (13.01.2020). 51 myanmar, https://www.amnesty.org/en/countries/asia-and-the-pacific/myanmar/, (13.01.2020). 52 cia, https://www.cia.gov/library/publications/resources/the-world-factbook/geos/bm.html, (14.01.2020). 53 ibidem. 54 p. heijmans, myanmar’s controversial census https://thediplomat.com/2014/09/myanmars-controversial -census/, (17.01.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 255 lives in rural areas (in 2014 urbanised areas were inhabited by 14,877,943 people, and rural areas 35,401,957). the largest age group were people between 15 and 64 years of age (there are 32,982,768 of them). the number of children under 14 years of age was 14,399,569, and people in the group of 65 years of age and more 2,897,563. the majority of the population over 15 years of age could write and read (of which 92.6% were men and 86.9% women). in the age group 5-17, 64.3% attended school, 24.8 % did not attend and 10.9 % never went to school. in 2014 the unemployment rate was 4.0 (3.9 men and 4.1 women).55 according to the constitution of myanmar the economic system of the union is market economy system. burma’s economic growth rate recovered from a low increase under 6% in 2011 but has been unstable and reached the rate between 6% and 7.2% during the past few years. burma’s vast natural resources and young labour force have the potential to attract foreign investment in the energy, garment, information technology, and food and beverage sectors. the government is focusing on accelerating agricultural productivity and land reforms, modernizing and opening the financial sector, and developing transportation and electricity infrastructure. the government has also taken steps to improve transparency in the mining and oil sectors. despite these improvements, living standards have not improved for the majority of the people residing in the countryside. burma remains one of the poorest countries in asia – approximately 26% of the country’s 51 million people live in poverty. the isolationist policies and economic mismanagement of previous governments have left it with poor infrastructure, endemic corruption, underdeveloped human resources, and inadequate access to capital, which will require a major engagement to reverse. the burmese government has been slow to address impediments to economic development such as unclear land rights, a restrictive trade licensing system, an opaque revenue collection system, and an obsolete banking system.56 corruption in myanmar is a serious problem the country needs to deal with. according to transparency international, in 2019 myanmar was on 130 position out of 180 countries in the ranking. the number of the points received was 29/100 (a country or territory’s score indicates the perceived level of public sector corruption on a scale of 0 (highly corrupt) to 100 (very clean) to 29. on the other hand, in 2018, the country ranked 132 out of 180 assessed countries and had a score of 29/100.57 3. situation of the media until the end of 2011 during the reign of the military junta, the media, as has been mentioned earlier, were under strict control. although the 1974 constitution affirmed that “every citizen shall have freedom of speech, expression and publication to the extent that such freedom is not contrary to the interests of the working people and socialism”, but in practice the military regime of general ne win interpreted the article so restrictively as to prevent 55 2014 population and housing census of myanmar data sheet, https://myanmar.unfpa.org/sites/default /files/pub-pdf/census%20data%20sheet%20-%20english_0.pdf, (25.01.2020). 56 cia, https://www.cia.gov/library/publications/the-world-factbook/geos/bm.html, (25.01.2020). 57 transparency international, https://www.transparency.org/country/mmr#, (20.01.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 256 the expression of any dissenting opinion through the mass media. all journalistic work, and even poetry or films, were carefully analysed and selected before they could be made public. interestingly, not only were works in which the authors dared to criticise the actions of the government banned, but also the so-called “bad news”, for example about some natural disasters and sometimes football matches that were lost by national teams.58 the most important and restrictive documents undermining the freedom of media that have been in force during this period (some of them even to this day), include: the printers and publishers registration law 1962,59 the emergency provisions act 1950,60 the state protection law 1975,61 the television and video act,62 the motion picture law,63 the computer science development law,64 the official secrets act 1923,65 the burma wireless telegraphy act 1933,66 martial law order 3/89,67 wide area network establishment and service providing order no. 3/2002,68 the electronic transactions law.69 and so, the printers and publishers registration law of 1962 imposed an obligation on the printers and publishers to submit all books and publication to press scrutiny board to obtain permission for possible publication. the commission had very broad powers, it could demand implementing relevant amendments and even a ban and destruction of the whole publication. this prevented publishers from carrying out activities that could expose them to enormous costs. it was also difficult to predict exactly what content could be criticised by that committee. therefore, in 1995 memorandum to all printers and publishers concerning the submission of manuscripts for scrutiny, issued by the printers’ and publishers’ central registration board was announced, according to which it was not permissible to publish any material containing a) anything detrimental to the burmese socialist programme; b) anything detrimental to the ideology of the state; c) anything detrimental to the socialist economy; d) anything which might be harmful to national 58 myanmar profile, http://www.bbc.co.uk/news/world-asia-pacific-12991727, (26.06.2012). 59 the printers and publishers registration law 1962, https://www.burmalibrary.org/mm/1962-printers-and -publishers-registration-law-english, (10.02.2020). 60 the emergency provisions act 1950, https://www.burmalibrary.org/docs19/1950-emergency_provisions _act-en.pdf, (10.02.2020). 61 the state protection law 1975, https://www.burmalibrary.org/docs6/state_protection_law+amendment .pdf, (10.02.2020). 62 the television and video act, https://www.burmalibrary.org/docs6/television_and_video_law.pdf, (10.02.2020). 63 the motion picture law, https://www.burmalibrary.org/docs15/1996-slorc_law1996-09-motion%20 picture%20law-en.pdf, (20.02.2020). 64 the computer science development law, https://www.burmalibrary.org/en/the-computer-science -development-law-slorc-law-no-1096-english, (17.02.2020). 65 the official secrets act 1923, http://www.asianlii.org/mm/legis/laws/bosa1923206/, (16.02.2020). 66 the burma wireless telegraphy act 1933, http://www.asianlii.org/mm/legis/code/bwta1934280.pdf, (16.02.2020). 67 martial law order 3/89, https://www.burmalibrary.org/docs/liob_02.pdf, (18.02.2020). 68 t. oo, m.m than, myanmar, http://www.digital-review.org/uploads/files/pdf/2009-2010/chap-32 _myanmar.pdf, (30.03.2020). 69 the electronic transactions law, https://www.myanmartradeportal.gov.mm/en/legal/216, (13.02.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 257 solidarity and unity; e) anything which might be harmful to security, the rule of law, peace and public order; f) any incorrect ideas and opinions which do not accord with the times; g) any descriptions which, though factually correct, are unsuitable because of the time or circumstances of their writing; h) any obscene (pornographic) writing; i) any writing which would encourage crimes and unnatural cruelty and violence; j) any criticism of a non-constructive type of the work of government departments; k) any libel or slander of any individual. as can be seen, the rules on permitted content in the publication remained unclear. their harshness was enhanced by an amendment to the printers and publishers registration law, introduced in 1989, which increased the penalties which could be imposed on those convicted of breaching the law. under this, anyone who failed to comply with any rules or regulations framed under the law could, for example, be imprisoned for up to seven years and fined up to 30,000 kyats. in practice, the emergency provisions act of 1950 had little in common with states of emergency in practice. this law made it an offence, punishable with imprisonment for up to seven years, to commit any act which “violates or infringes upon the integrity, health, conduct and respect of state military organisations and government employees towards the … government”, “causes or intends to spread false news about the government” or “causes or intends to disrupt the morality or the behaviour of a group of people or the general public.” however, there was no indication as to what exactly would be the characteristics of such information to be considered inappropriate and detrimental to the interests of the state. then, the state protection law of 1975 also called as the law to safeguard the state against the dangers of those desiring to cause subversive acts, allowed a sentence of up to five years’ imprisonment as well as detention without trial. such a punishment could affect anyone who, in the opinion of the authorities, could in any way (for example by disseminating certain information) threaten the sovereignty, security or order of the state.70 there was still no commentary or jurisprudence, allowing for example to foresee what kind of the publication may be prohibited. such vague regulations gave the military junta enormous scope for interpretation, often dependent on their authoritarian decisions. what is interesting, in 1994 the slorc announced that they would be justified in holding anyone arrested under the law for a total of 6 years, arguing that the period of five years specified in section 14 was in addition to the period of one year initially allowed under the section. the television and video act of 1995 on the other hand required organisations and the public to obtain an approval of the ministry of communications to own tv and video equipment.71 the 1996 motion picture law imposed an obligation to obtain a permission from the myanmar cinema company to make films and then censor them if, in the opinion of the authorities, there is a need to do so. 70 the state protection law, https://www.burmalibrary.org/docs6/state_protection_law+amendment.pdf, (02.02.2020). 71 acts of oppression. censorship and the law in burma, http://www.article19.org/data/files/pdfs/publications /burma-acts-of-oppression.pdf, (28.09.2013). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 258 the official secrets act, adopted back in 1923, which provided for a prison sentence of up to two years and/or a fine for possession of any information and documents which, in the opinion of those in power, could threaten national security, relations with other states or public order, was still in force. then, martial law order 3/89 provided regulations that any publication, without the prior consent of the ministry of the interior and religious affairs, is a criminal offence. one can also mention here the burma wireless telegraphy act of 1933, adopted back in 1933, which required a permission to possess any kind of equipment enabling remote data transmission. at the turn of 1995/96 the military junta supplemented this document by obtaining permission to have a fax and/or a computer. subsequent documents refer to the content published on the internet. and so, the computer science development law of 1996 required the user to obtain a prior consent of the ministry of communications to own and use a computer. wide area network establishment and service providing order no. 3/2002 concerned creating a computer web. and finally, the electronic transactions law of 2004 provided penalties for anyone who commits any offense by using electronic transactions technology. also, other acts which clearly restrict freedom of expression and media were in force. one can mention here section 122, penal code of burma,72 the law protecting the peaceful and systematic transfer of state responsibility and the successful performance of the functions of the national convention against disturbances and oppositions73 as well as the unlawful associations act 1908.74 the first of the aforementioned made it an offence to commit treason against the government established by law. this offence was punishable with death, or with imprisonment for life. over the years, it has been used against all people who have merely expressed peaceful dissent against the authorities. the second of the aforementioned documents made it an offence, among other things, to: a) incite, demonstrate, deliver speeches, make oral or written statements and disseminate [them] in order to undermine the stability of the state, community peace and tranquillity and prevalence of law and order; b) incite, deliver speeches, make oral or written statements and disseminate [them] in order to undermine national reconsolidation; c) disturb, destroy, obstruct, incite, deliver speeches, make oral or written statements and disseminate [them] in order to undermine, belittle and make people misunderstand the functions being carried out by the national convention for the emergence of a firm and enduring constitution; or d) draft and disseminate the constitution of the state without lawful authorization. each of these acts were made punishable with imprisonment for between three and 20 years and a possible fine, as were attempts or abetment of them. 72 penal code of burma, https://www.burmalibrary.org/docs17/1861-penal_code-ocr-en+bu.pdf, (09. 02.2020). 73 the law protecting the peaceful and systematic transfer of state responsibility and the successful performance of the functions of the national convention against disturbances and oppositions, https:// www.burmalibrary.org/en/the-law-protecting-the-peaceful-and-systematic-transfer-of-state-responsibility -and-the-successful, (10.02.2020). 74 the unlawful associations act 1908, http://www.asianlii.org/mm/legis/code/uaa1908255/, (11.02.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 259 one also cannot forget the unlawful associations act 1908 which, though primarily used to deny freedom of association, was often applied in a manner that has impacted adversely on freedom of expression. this law, among other things, made it an offence, punishable with imprisonment for between two and three years and a possible fine, to have contact with any organization which the burmese authorities declared illegal. passing a new constitution in 2008, which guaranteed freedom of speech and the media did not in fact change anything. the authorities have not repealed any of the documents mentioned above, which, after all, made it impossible to use the freedom of speech and media given on paper. any kind of pretext, such as the publication of st. valentine’s day wishes, was enough for a journalist who disobeyed the military junta to end up in one of forty-three prisons, sometimes for many years.75 among the victims, the following ones can be mentioned: maung thura, thet zin and u sein win maung, hla min, htay win, thida aye, ma thida. the number of all victims during this period is practically impossible to estimate. zarangar (actually) is a popular burmese comedian, film actor, and a film director, a critic and a political prisoner of the burmese military government zarganar was banned indefinitely from performing publicly or participating in any kind of entertainment related work. he was arrested in 2008 for speaking to foreign media about the situation of millions of people left homeless after a cyclone devastated the irrawaddy delta and then sentenced to 59 years in prison, convicted of "public order offenses", under the criminal code. then, thet zin and u sein wing maung were accused of possessing documents relating to human rights in burma and the “saffron revolution”, which were seized during a search of the offices.76 draconian law would often be used to arrest and imprison members of the nld party, as in 1990, when hla min, htay win, thida aye and others were arrested for attempting to publish, without permission, a report of the nld’s historic gandhi hall meeting. the writer ma thid was sentenced to 20 years' imprisonment for distributing anti-government leaflets.77 the persecution of journalists lasted until the end of 2010, and even longer – still in 2011, after the first media reform was launched. before it had been introduced there were more than 150 private dailies and magazines in the country. however, they could only publish content that had previously been approved by the media commission. some tried to smuggle some democratic content during the first general parliamentary elections. they did so with varying degrees of success, but each time they were liable to fines, imprisonment, suspension or closure of the editorial office.78 the authorities 75 burmese media spring, https://reliefweb.int/sites/reliefweb.int/files/resources/burmese_spring.pdf, (28.09.2013). 76 editor and office manager of myanmar nation charged under press law, https://rsf.org/en/news/editor-and -office-manager-myanmar-nation-charged-under-press-law, (05.02.2020). 77 union of myanmar (burma) @arrests and trials of political prisoners january-july 199, https:// www.amnesty.org/download/documents/196000/asa160101991en.pdf, (10.04.2020). 78 burmese media combating censorship, http://en.rsf.org/birmanie-report-burma-combating-censorship-22 -12-2010,39134.html, (28.09.2013). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 260 also published their own newspapers, namely: “kyemon”, “myanma alin”, “new light of myanmar” or “the yadanabon”. electronic media (television and radio) were under the complete control of the ruling authorities.79 the internet, although existing, was also subject to control.80 the services of foreign broadcasters such as bbc, rfa, voa and dvb could be received in the country. although they broadcast in burmese, their activities were strictly controlled. many international journalists were notoriously being refused the right to enter the country. 81 some journalists from myanmar managed to escape abroad, mostly to thailand. but they did not remain passive. at least two significant initiatives are worth mentioning here. in 1992 the democratic voice of burma was established, with two offices in chiang mai, thailand and oslo, norway. the democratic voice of burma used both radio, satellite television and the internet. their popularity was great, tv and radio was received by about five million people in burma, and the website was visited by about ten thousand users a day, mainly from the united states and singapore. in addition, on may 3, 2011, they launched a worldwide campaign for the release of all journalists in burma.82 about one hundred and twenty journalists, who also found refuge in northern thailand, founded the burmese media association. they ran a website that provided daily information and articles on the human rights situation in burma. their role was and is invaluable. it was thanks to them that the world was informed about the suppression of the saffron revolution or the authorities’ complete ignorance of the tragedy caused by cyclone nargis in 2008.83 4. media situation since 2012 the reforms announced in 2011 finally gave some hope for respecting media freedom. in the same year, the authorities announced amnesty for dozens of political prisoners, including the blogger zarganar, sein win maung, editor of myanmar nation and three reporters of the democratic voice of burma.84 one of the most important steps towards media freedom was the abolition of the obligation of prior censorship, as well as the obtaining operating licences by the print media. however, they still had to be registered 79 may thaw, broadcasting options expanding, http://www.mmtimes.com/feature/electronic/e09.htm, (28.09.2013). 80 internet cafe in myanmar, http://www.myanmar2day.com/myanmar-information/2009/02/internet-cafe-in -myanmar/, (28.09.2013). 81 freedom of the press. report 2007, http://www.freedomhouse.org/report/freedom-press/freedom-press -2007?page=251&year=2007, (28.09.2013). 82 s. roughneen, burmese media launch campaign to free jailed reporters, http://mediashift.org/2011/05 /burmese-media-launch-campaign-to-free-jailed-reporters130/, (30.03.2020). 83 burmese media spring… 84 ibidem. maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 261 with the ministry of information.85 internet censorship in myanmar was largely abolished in 2014.86 two laws were passed in 2014 to regulate the issues of the printed media, namely the printing and publishing enterprises law (ppel)87 and the news media law.88 the broadcasting law of myanmar89 was passed in 2015. the printing and publishing enterprises law (ppel) replaced printers and publishers registration law of 1962. in fact, the provisions of the act explicitly referred to the 1962 printers and publishers registration law. however, the penalties provided for in the new law were not as severe as in the 1962 act. the prison sentence was reduced from seven years to six months and the fine was limited to approximately $12,000 for the owners of the publications. article 7 prohibited the publication of any publication “a) expressing subject matters which may cause harm to an ethnic group or among the ethnic groups, or those which may insult other religions; b) provoking for the purpose of deteriorating the rule of law or encouraging mass violence; c) expressing nudity; d) encouraging and stimulating crimes, cruel behavior, violence, gambling and the act of committing crimes using opium and abusive drugs; e) publishing expressions and texts which are against and violate the provisions of the constitution and other legislations.” the news media law guarantees for example “freedom from censorship to express, publish, or distribute freely as part of rights and privileges granted to every citizen in compliance with regulations stated in the national constitution”, the rights and freedoms of media workers, and stipulates that the media is the fourth state authority. in accordance with article 4, media employees have the right “a) to freely criticize, point out or recommend operating procedures of the legislative, the executive and judiciary in conformity with the constitution, b) to investigate, publish, broadcast information and related opinions to which every citizen is entitled in accordance with rules and regulations, c) to reveal issues relating to rights and privileges lost by the citizen, d) to collect information, to be provided with accommodation and to enter into certain offices, departments and organizations in accordance with regulations of relevant departments or organizations”. if media personnel operate in war zones or during riots or demonstrations, they cannot be arbitrarily detained and their equipment cannot be 85 assessment of media development…, p. xvii. 86 ibidem, p. 42. 87 the printing and publishing enterprises law, https://www.burmalibrary.org/mm/printing-and-publishing -enterprise-law-bill-english, (07.02.2020). 88 the news media law, http://www.myanmar-law-library.org/law-library/laws-and-regulations/laws /myanmar-laws-1988-until-now/union-solidarity-and-development-party-laws-2012-2016/myanmar-laws -2014/pyidaungsu-hluttaw-law-no-12-2014-news-media-law-burmese.html, (06.02.2020). 89 the broadcasting law of myanmar, http://www.myanmar-law-library.org/law-library/laws-and -regu lations/laws/myanmar-laws-1988-until-now/union-solidarity-and-development-party-laws-2012 -2016 /myanmar-laws-2015/pyidaungsu-hluttaw-law-no-53-2015-broadcasting-law-burmese.html, (05.02.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 262 destroyed or confiscated. furthermore, they may ask relevant entities to guarantee their safety and security. additionally, they shall be entitled to obtain unclassified information from the activities of non-governmental organisations, as well as entities operating from public funds. employees are obliged to observe professional ethics. investigative journalists may conduct an investigation, without disclosing their personal information, with the consent of the relevant publisher and the approval of the proposed action. possible confiscation, destruction of materials is allowed only by court judgment.90 at this point it is worth mentioning the protection of information sources. according to the media code of conduct (coc) of 2014, “media outlets have a moral obligation to protect confidential sources of information and to respect confidences knowingly and willingly accepted in the course of their work. this code supports that obligation.” however, the document serves as an industry standard only. journalists themselves are unable to protect sources of information.91 article 12 of the news media law established myanmar's news media council, which is primarily responsible for monitoring the media and ensuring that high quality media is maintained. it is an independent organisation, consisting of employees of various media, as well as scientists. another law mentioned above is the broadcasting law of myanmar. it imposes an obligation to obtain a licence for broadcasting media. however, the act does not address issues relating to the digital terrestrial television transition. the act established the national broadcasting council, which is also an independent organisation with similar functions to myanmar's news media council. despite these changes, it should be noted that the legal system for the media in myanmar is outdated. although the emergency provision act of 1950 and the state protection act of 1975 were repealed in 2016, the state still has laws in force that undermine media freedom and journalists face legal consequences for their actions. we may not forget that the development of media is also influenced by changes in telecommunications law. in 2013, the telecommunications law92 was passed, under which the telecommunications industry was privatized. myanmar now has three national telecommunications providers. privatisation of the sector has resulted in a sharp drop in sim card prices, making mobile phone ownership accessible to a large part of the population and thus increasing internet access. it is also worth mentioning the competition law of 2015, which prohibits monopoly practices or various regulations concerning the possibility of advertising in the media. 90 the news media law… 91 assessment of media development…, p.22. 92 the telecommunications law , http://www.myanmar-law-library.org/law-library/laws-and-regulations /laws/myanmar-laws-1988-until-now/union-solidarity-and-development-party-laws-2012-2016/myanmar -laws-2013/pyidaungsu-hluttaw-law-no-31-2013-telecommunication-law-burmese.html, (05.02.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 263 changes in media legislation have caused a real boom in the publishing of printed media. however, problems with maintaining their continuity quickly emerged. state-owned media have a clear competitive advantage over private media, both in media production and distribution. there are media that are strongly supported by political parties, such as the national league for democracy’s d-wave journal, or the union solidarity and development party’s union daily. ethnic media are likely to represent the interests and views of their associated armed wings, rather than the bamar central state. however, there is no accurate publicly available data on printed media. similarly, data on circulation and sales is difficult to come by. according to unesco print media cannot adequately provide for the information needs of all segments of society, most notably poor and rural populations. due to the country’s weak road infrastructure, print media circulation is mostly limited to urban and peri-urban areas.93 in myanmar many citizens rely on broadcasters for their information and entertainment needs. all broadcasters in the country are either state-owned or joint-ventures between the state and private companies. private, public and community broadcasters do not exist in myanmar yet. myanmar has two stateowned broadcasters. mrtv operates under the ministry of information and myawaddy operates under the ministry of defence. both of these broadcasters provide tv and radio broadcasting. moreover, myanmar has seven joint-venture radio stations. another medium through which many people in myanmar access news and information is tv broadcasting. joint-venture broadcasters offer subscription services, therefore they are not affordable for some groups of the society. both state broadcasters (mrtv and myawaddy) offer a freeto-air channel. their channels are more commonly viewed, particularly in rural areas.94 the internet is becoming more and more popular. most major print publications in myanmar have a web version, however there is a heavy focus on social media. the list of the most popular websites consists of: facebook 7 day,95 eleven, bbc burmese, irrawaddy burmese, voa burmese, mizzima burmese, mrtv-4 and dvb tv (random order).96 there are associations and journalist unions in myanmar, such as myanmar journalist association. the foreign correspondents’ club of myanmar, the myanmar journalists’ union (mju), the myanmar journalists’ association (mja), and the myanmar journalists’ network (mjn).97 the state media as myanmar ahlinn, the mirror and the global new light of myanmar all take in news from state feeds around the country. this may come direct from 93 assessment of media development …, p. 60-61. 94 ibidem, p.19. 95 in myanmar, facebook is the internet and the internet is facebook, https://seasia.yale.edu/myanmar -facebook-internet-and-internet-facebook 96 e. lehmann-jacobsen, myanmar audience study 2018. myanmar’s media from an audience perspective, ims-fojo, september 2018 https://www.mediasupport.org/wp-content/uploads/2018/07/myanmar -audi ence-study-2018_online.pdf, p.15-18. 97 journalist unions in myanmar in joint campaign for press freedom, https://www.mediasupport.org /journalist-unions-in-myanmar-join-forces-in-campaign-to-curb-restrictive-media-laws/, (10.01.2020). myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 264 myanmar news agency (mna), which falls under the ministry of information, or from myawaddy, which is a military-run news service. state media also retains subscriptions to press trust of india, reuters and tass. international wire agencies such as afp, ap and reuters have fully-staffed bureaus in yangon. other international news organisations retain correspondents or stringers.98 5. recommendations for myanmar to guarantee respect for media freedom the state of respect for freedom of expression and media freedom in myanmar is not satisfactory and the authorities should take steps to improve the situation as soon as possible. the most important, however not the only, recommendations to myanmar on media freedom will be presented below: • signing and ratifying international human rights documents guaranteeing freedom of expression and media freedom, such as the international covenant on civil and political rights and the international convention on the elimination of all forms of racial discrimination, • introduction of amendments to the constitution of 2008, aimed at strengthening guarantees for media freedom and introducing the citizen’s right to information. in 2019,99 steps were taken to introduce the citizen's right to information, but this issue has not yet been resolved. it should be remembered that a such right must be enforceable. • immediate repeal all laws violating media freedom, • promoting the positive aspects of respect for media freedom by the authorities and undertake the fight against censorship and hate speech, • ensuring proper interpretation of the regulations only independent courts can properly interpret laws which restrict press freedom • consulting bills with journalists and other legal entities with legal interest in guaranteeing and respecting media freedom as well as ensuring their participation in the legislative process • creating conditions that will encourage the emergence of new media and enable these and existing media to stay in business, such as providing them with financial support for start-ups or reducing tax rates to ensure media pluralism and diversity. • media must have fair and equal access to distribution channels and technical infrastructure (for example, radio frequencies, transmission cables, satellites) or 98 myanmar newspapers and news sites, https://www.w3newspapers.com/myanmar/, (05.01.2020). 99 myanmar: guarantee the right to free expression in the constitution, https://www.hrw.org/news/2019/04 /11/myanmar-guarantee-right-free-expression-constitution, (05.02.2020). maria ochwat the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 265 commercial (newspaper distributors, postal or other delivery services). moreover, media ownership and economic influence over media must be made transparent. • government, parliament and the courts must be open to the media in a fair and equal way, • guaranteeing equal and fair access to the media for all political parties and social groups, • enabling the media to communicate information and ideas on all matters of public interest. however, they must not exceed certain limits, in particular those relating to respect for the reputation and rights of others and the confidentiality of certain information. it should be noted that freedom of journalism also means the possibility of a certain exaggeration or even provocation. otherwise, the media would be prevented from fulfilling an important role, namely that of a public observer • state officials shall not be protected against criticism and journalists should not be imprisoned, or media outlets closed, for such critical comments. the limits of acceptable criticism are wider for politicians and their public activities than for private individuals. politicians consciously and inevitably expose themselves to reactions to every word they say and everything they do today and did in the past. they must therefore be more tolerant even of more violent attacks. however, this does not mean that someone, just because he or she is a public figure, can be slandered with impunity without being able to defend his or her good name. in such situations, however, the extent of the justified protection of his or her good name should always be determined in confrontation with the value of public debate • guaranteeing the protection of journalistic sources, as this is one of the basic conditions for media freedom. without such protection, the essential role and place of the media in a democratic society has to be weakened. however, the right to protection of information sources is not unlimited, in particularly justified cases where public considerations will be so important as to oblige a journalist to disclose his or her source, but this will not be considered a violation of international human rights standards, • journalists must be protected against physical threats or attacks because of their work. police protection must be provided when requested by journalists who feel threatened. prosecutors and courts must deal adequately, and in a timely manner, with cases where journalists have received threats or have been attacked. the absence of such a guarantee may make it entirely impossible for the media to be a platform for democratic discourse • penal laws against incitement to hatred or for the protection of public order or national security must respect the right to freedom of speech. if penalties are imposed, they must respect the requirements of necessity and proportionality. if a politically motivated application of such laws can be implied from the frequency and the intensity of the penalties imposed, media legislation and practice must be changed myanmar media: legacy and challenges the age of human rights journal, 14 (june 2020) pp. 245-271 issn: 2340-9592 doi: 10.17561/tahrj.v14.5516 266 • immediate and unconditional release of all media representatives who have carried out their duties, in accordance with international standards on media freedom. if these standards are trespassed, guaranteeing a fair trial for media representatives, • allowing foreign journalists as well as human rights observers to enter the country. the refusal to enter and to produce material on the situation in myanmar cannot be justified on the grounds of fear of producing material that could show the state in a light that is unfavourable to the authorities • strengthening of a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists • obligation for the media to comply with their own professional codes of conduct • development of the media education system as well as professional training and workshops for the media • monitoring respect for media freedom by independent institutions established by the media • annual publication by the government of a reliable and accurate report on the situation of media freedom in myanmar. conclusion from the time of the military coup in 1962 until the creation of thein sein’s civilian government there was no respect for freedom of the media and freedom of speech in myanmar. the media were under the strict control of the military junta. the laws in force at the time completely paralysed the activities of the media. journalists were often persecuted, sentenced to prison terms or fines, and the media were suspended or even closed down. the situation was to change dramatically in 2011. thein sein promised to break with the previous policies of his predecessors, release political prisoners and take steps to guarantee media freedom. one of them was the abolition of prior censorship. several legislation acts were repealed, however many laws that undermined media freedom remained in force. the media market revived, although many media had difficulty keeping up with it. the broadcast media continue to be dominated by the state authorities. internet media are becoming increasingly popular, although not everyone, for technical reasons, has unrestricted access to it. journalists continue to be punished for informing the public about issues of great importance to them, such as the persecution of the rohingya minority. myanmar remains among the countries where respect for media freedom, according to the press freedom index, is of particular concern to the international community. respect for media freedom in myanmar is possible, but this requires immediate action. 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https://www.burmalibrary.org/docs21 /icg-2015-12-09-the-myanmar-elections-results-and-implications-en-red.pdf, (16.01.2020). transparency international, https://www.transparency.org/country/mmr#, (20.01.2020). un commission on human rights, situation of human rights in myanmar, 10 march 1993, e/cn.4/res/1993/73, https://www.refworld.org/docid/3b00f0c520.html (15.01.2020). un treaty database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/treaty .aspx?countryid=119&lang=en, (25.02.2020). 2014 population and housing census of myanmar data sheet, https://myanmar.unfpa .org/sites/default/files/pub-pdf/census%20data%20sheet%20-%20english _0.pdf, (25.01.2020). received: march 10th 2020 accepted: may 12th 2020 myanmar media: legacy and challenges abstract keywords summary 1. myanmar media legacy and challenges 2. outline of myanmar’s social and political situation since 1962 3. situation of the media until the end of 2011 4. media situation since 2012 5. recommendations for myanmar to guarantee respect for media freedom conclusion bibliography microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 211 new instruments for human rights protection in globalization ana m. ovejero puente* abstract: the ruggie principles have given new impulse to the process of developing and modernizing international law through the influence of human rights. however, this process has been developed as “soft law” measures included in the corporate social responsibility activities of multinational companies, which academic opinion deems has lessened the capacity of human rights for transforming international law into more effective and truly binding instruments to avoid abuses against human dignity. this issue has prompted a debate concerning the role of multinationals as subjects of international law, and the advisability of returning to more traditional and conservative approaches to governance of globalization and to effective protection of human rights from risky business activities. however, thanks to common law traditions, this model may be transformed into binding rules, using the legal tools of private law. this reveals the utility of such soft law regulations in creating cultures of respect useful when rule of law is weak to rule relations between states, companies and people, that arise from the actions of private individuals rather than the activity of public law-making institutions. keywords: human rights protection, globalization, multinational companies, governance; international business, social responsibility, soft law regulation, hard law regulation, common law tradition. summary: 1. introduction. 2. global compact, ruggie principles and the new framework for a more effective international system of human rights protection. 3. multinational companies as subjects of international law. 4. the role of governments and companies in the development of new protection instruments. 4.1. on the side of the states. 4.2. on the side of multinational companies. 5. soft law and hard law: advantages and disadvantages. 6. final conclusions: the convergence of systems as rules for complex globalization 1. introduction one of the consequences of the late capitalist system, developed at the end of the 20th century in globalized environments, is the states’ loss of economic control and, consequently, the loss of their executive powers to enforce national systems of human rights guarantees with regard to companies’ international economic transactions, whether financial or commercial, and which, in principle, fall under the state’s jurisdiction. the rule of law principle is conditioned by the lack of international regulations that enable national systems to effectively overcome territorial boundaries, and to expand national human rights guarantees beyond national frontiers in cases of abuse of power or violations on the part of corporations and multinational companies when developing economic or commercial relationships within third countries. therefore, many authors argue that globalization has crippled national states as effective guardians or custodians * universidad carlos iii de madrid, spain (aovejero@der-pu.uc3m.es) the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 212 new instruments for human rights protection in globalization of their citizens’ essential human rights, while weakening the traditional legal instruments used to enforce human rights laws and regulations in these guarantee systems.1 non-governmental organizations (ngos) defending human rights maintain that it is very difficult for states, acting within the limits of their jurisdiction, to control the international behavior of multinational companies and corporations, which although based in their territories, operate in different jurisdictions along their value chains. in many cases, and no matter their size, multinational companies take advantage regulatory differences among countries to avoid regulatory constraints that increase business costs. protectionist rules mean higher costs for producing, distributing or selling products or services. companies pursue the highest efficiency for their business and therefore seek to reduce the cost of social insurance of workers, production costs resulting from compliance with occupational health and safety regulations, or simply taxes on business profit. these ngos have also frequently criticized companies’ use of economic and commercial globalization to ensure their impunity in actions brought for rights violations. the political and legal debility of states faced with the phenomenon of economic globalization, especially in developing or underdeveloped areas in need of foreign investment for their own economic growth, and the worldwide weakening of generous implementation of the rule of law principle has resulted in lacunae in state legislation that are used by multinational companies to circumvent their legal responsibility to abide by compliance standards and respect the most basic human rights. in fact, many of the most significant human rights abuses of the last decade were committed by multinationals. in response to this situation, the international regulatory framework, created first by the global compact initiative and later by the ruggie principles, provide models for behavior, habits and good business practices that respect fundamental rights, and that transcend the logic of “subjection to the norm” imposed by law and classical legal theory.2 this new internationalized reasoning mainly affects rules of the economic-business world and explains, from more flexible positions, the rights and duties that must govern the peaceful coexistence of society. private commitment to respect rights is more effective than their being legally imposed by the state, especially the state’s power of enforcement is weak. the new international, technological and globalized world has generated a de facto transfer of power from the realm of politics to the economy, creating a new conceptual framework and new human rights regulations, which particularly influences international economic and business relations. however, the set of norms that affects social relations between citizens and companies likewise indirectly affects the relation between multinational companies and states, and of course the relationship between citizens and the state. we cannot ignore that social models depend on economic development. 1 martín, olga. empresas multinacionales y derechos humanos en derecho internacional. bosch 2007 2 see maccormick, neil. legal reasoning and legal theory. clarendon press, 1994, and hill, jonathan. comparative law, law reform and legal theory. oxford j. legal stud., (1989), vol. 9, (p. 101) the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 213 ana m. ovejero puente companies are assuming obligations to human rights in all of their headquarter operations, as well as in their value chains, wherever they are, by means of soft law tools, through internal policies, or through public commitments with clients, consumers and other stakeholders. companies are able to overcome the limitations of traditional jurisdictions by respecting their own voluntarily accepted commitments. in this sense, companies’ soft law provides a new way of creating rules and norms that are useful in a globalized world, despite being far removed from international law and the traditional national law-making process. these new systems, which are already being applied with relative success and are transforming the definition of human relations and the design of operating rules in globalized markets, offer us a new theoretical approach to reconsider how to order complex globalized contexts. in any case, any new form of regulation of globalization must have the same objectives and limits as the traditional systems. these are, basically, respect for human rights and human dignity and access to effective remedies in the event of abuse or damages resulting from violations. 2. global compact, ruggie principles and the new framework for a more effective international system of human rights protection since the adoption of the united nations charter and the universal declaration of human rights (udhr) by the un general assembly, human rights (hr) have provided an engine for the innovation and transformation of modern international law, being an “undeniable dimension of change and transformation in international law” as professor carrillo said.3 after world war ii, human rights were unanimously accepted as universal values and essential instruments for managing relationships between states and individual citizens. human rights are erected as limits to the exercise of the state powers, and as the ends that justify the actions of the state. citizens, in whom these inalienable rights are vested and for which they may legally demand compliance, have been placed at the center of international relations, ceasing to be a mere object of international law to become the protagonist of the international order. respect for human rights has transformed the consideration and reputation of states in an international context. the countries most protective of human rights become the most respected within the international community of states: a “quality criterion” for modern international relations. the criterion of “force” finds its ability to influence international relations among states diminished and ceases to have international coverage if used to threaten human rights. 3 in carrillo salcedo, “derechos humanos y derecho internacional”, in isegoria revista de filosofía, moral y política, no. 22 (2000) (pp. 69-81) the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 214 new instruments for human rights protection in globalization the ability of states to respect human rights transforms the concept of the utility of international relations and, of course, the interpretation of the application of international law. this conceptual revolution affected the basic organization of international relations in the second half of the 20th century. citizens appeared on the scene as new actors, able to interact directly with states, thanks to rights recognized in international treaties and protected by international agents, tribunals or commissions, outside of the state itself, and beyond what the state’s own legal system and often its constitution would recognize. states under international rights-protection organizations recognized persons under their jurisdiction and under the jurisdiction of other states as subjects of international rights. and they quickly introduced those guarantees into their own constitutions or constitutional systems. the recognition of rights on the part of other states protects citizens from the abuse and/or arbitrariness of their own national authorities, even beyond the extent of any positive legislation that their country may have. human rights law, which was created only to regulate relations between states, has also affected the legal structure of international law. the theoretical bases of international law have had to be adapted to individuals who are now active agents of international law, able to act in favor of their own individual interests, different from those of the state. international law, which until the second half of the 20th century maintained its elemental inter-state structure, had to generate new tools to include people as subjects of international relationships. this resulted in the creation of international means to enable direct relations between persons and international institutions,4 ending the former exclusively inter-state legal structure. the human person is seen as a full subject of international law, including his or her globalized or internationalized human relations, which is a new individual perspective for international law, concerning specific people and far removed from the traditional international regulatory plan for national communities, which affected thousands of citizens at once, in the “mass” management of intra-state relations. sovereign states, which created international law for themselves to organize their relationships, ceased to be the only subject of human rights and, therefore, the rules of international law regulating the powers and obligations of human rights can no longer be imprecise, increasing their legal content and ensuring greater certainty and legal security for people, who are now aware of their rights and how they can be protected. human rights law is one of the roots of the transformation from classical international law to contemporary international law, according to legal scholarship.5 this implies evolving 4 in carrillo salcedo, “el sistema internacional de los derechos humanos y la globalización”, en el derecho internacional humanitario ante los retos de los conflictos armados actuales. marcial pons, (2006). 5 chen, lung-chu. an introduction to contemporary international law: a policy-oriented perspective. oxford university press, (2014). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 215 ana m. ovejero puente from liberal international law, decentralized and based on the oligopolies and leading states, to institutionalized, social and democratic international law.6 this change is reflected in many international and regional human rights protection instruments, although it doesn’t have the depth required to constitute a true theoretical category. even today, states continue to be the prevailing subjects of current international instruments, and principles of mutual respect for national sovereignty or decentralization of the international legal system are maintained in the benefit of national economic interests. the international system of human rights does continue to recognize fundamental rights of the people against abusive or arbitrary action of the state. but it is the state that must generate the instruments and resources (at the national or the international level) to make those rights real and effective. even the most current international treaties define obligations of the states as “obligations of outcome,” regardless of their actions, applying general principles such as the sovereign equality of states, the notion of national sovereignty, or the principle of non-intervention in home affairs as valid sources of international law. the infringement of rights is essentially considered an internal matter falling under the jurisdiction of each state (paragraphs 1 and 7 of article 2 of the united nations charter).7 the emergence of the regional treaties for human rights protection intensified this transformational trend. first, because the multilateral action of these institutions intensifies and complements the states’ protective measures. and, secondly, because these new organizations are endowed with political powers capable of limiting the powers of the states, thus further preventing or avoiding human rights abuses. the state has ceased to be the exclusive guarantor of fundamental rights. citizens have international tribunals where they can seek remedies when the states fail. the european system of human rights protection, embodied in the european convention on human rights is, certainly, the instrument that has had the most significant impact in this change. the creation of the echr and the imposition on all signatory states of the obligation to “abide by the final judgments of the court in disputes to which they are parties “(art. 46.1 echr) reflects the imperative nature of the european system as an international collective guarantee of the rights of those persons under the states’ jurisdiction. and this includes not only their nationals, without imposing conditions of reciprocity, and regardless of the conduct of the other member states. the rome convention established “a new objective order” based on the respect for human right, in which the degree of compliance of other member states or bilateralism are irrelevant, extending beyond the principle of reciprocity. in addition, the convention adds another new element which also has significant impact 6 gómez isa, felipe, et al. international human rights law in a global context. universidad de deusto (2014). marquez carrasco, carmen. “las relaciones entre el derecho internacional y la práctica interna en el ámbito de los derechos humanos y la responsabilidad de las empresas”. anuario español de derecho internacional, (2018), vol. 34, (p. 707). 7 lópez-jacoiste, “los principios rectores de las naciones unidas sobre las empresas y los derechos”, at fernández liesa, carlos r.; lópez-jacoiste maría eugenia. empresas y derechos humanos. thomson reuters aranzadi, 2018 the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 216 new instruments for human rights protection in globalization and disregards traditional conceptions of international law: the possibility for individuals to file individual claims. it is now possible to sue the states directly for non-compliance with international conventional obligations.8 in the beginning, when the convention entered into force, the possibility of filing individual claims was lawsuits was limited by the fact that individuals did not have standing at the strasbourg court. individual claims had to pass the filter of the european commission of human rights which, together with the signatory states, had the power to decide which matters would be admitted. the right to file individual claims was firmly recognized in the reforms introduced in 1998 in protocol 11, acknowledging the standing of those who considered themselves victims of human rights violations.9 this powerful system of individual protection initiated by the victim himself is the one that most decisively transformed international law at the beginning of this century. it operates with its own normative instruments, with courts and independent international institutions of protection, and with powerful instruments to guarantee enforcement (for example, tools for executing international judgments, or requiring compliance with these instruments as a requisite for access to organizations of regional integration, etc.),10 enabling individuals to be active subjects of international law. however, it is still understood that the state is the only “possible hypothetical violator” of human rights and therefore the entity only responsible for actions or omissions, capable of injuring the rights of individuals. the same applies to the inter-american system of human rights, whose signatories are members of the organization of american states (oas), and which has the inter american court of human rights to determine the international responsibility of states, through the application and interpretation of the american convention on human rights and other system instruments.11 the system is culminated by the incorporation of international human rights law in national constitutional texts or national constitutional systems, and through the integration of national constitutional and international systems for the protection of fundamental rights. in both the european monist systems and the dualist englishcommonwealth systems, international human rights law is part of the states’ internal legal order, either being automatically incorporated, as provided in article 10.2 of the spanish constitution, 8 saiz arnaiz, alejandro, la apertura constitucional al derecho internacional y europeo de los derechos humanos. el artículo 10.2 de la constitución española. consejo general del poder judicial, madrid (1999). 9 in queralt jiménez, argelia, la interpretación de los derechos: del tribunal de estrasburgo al tribunal constitucional, centro de estudios políticos y constitucionales, madrid (2008). 10 see in that sense, carrillo salcedo, “soberanía de los estados y derechos humanos” en derecho internacional contemporáneo, tecnos (2nd ed.), madrid, (2001). sap, jan willem. “the role of human rights in setting the boundaries of sovereignty and the autonomy of the eu legal order”. amsterdam law forum, (2017), vol. 9, p. 48. 11 a burgorgue-larsen, laurence. el sistema interamericano de protección de los derechos humanos: entre clasicismo y creatividad. iredies, paris, (2009), “ la corte interamericana de derechos humanos como tribunal constitucional”, bogdandy, fix-fierro, h. and morales antoniazzi, m., coords. ius constitutional common in latin america. features, potential and challenges. unam, mexico (2014), (p. 421-458). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 217 ana m. ovejero puente or through the national court’s application of human rights case law, as essential principles of the “law of the nations”.12 in short, the protection provided human rights in these international instruments has transformed the foundations of classical international law, removing or surpassing the jurisdictional barriers and the principle of non-external intervention imposed by the traditional theory of classical public international law. however, the process is not over since, given the profound changes that have been introduced, including the constitutional integration of human rights law, these modern systems continue to entrust states with the preeminent role of protecting rights and exclusive responsibility in the event of infringement, despite the fact that, recently, the most significant human rights violations have not been committed against citizens solely by direct actions of the states, but also by the commercial activities of multinational companies seeking more favorable regulatory spaces for maximizing economic profit. the international system of human rights protection does not react quickly in such cases, since it is very difficult to demonstrate the responsibility of the state in the injuries inflicted by companies, and because national legislation does not envisage international mechanisms of control and compliance for multinational companies. the same may be said from a constitutional perspective: constitutional systems mandate that national law and national resources have the obligation to monitor and control companies, with the difficulties that this entails when companies operate internationally. however, global society demands tangible results in protecting, or at least in compensating, people or communities for abuses generated by the operations of corporate enterprises, whatever the theoretical legal responsibility of states may be in regulating or overseeing their activities. human rights, that were conceived in the nineteenth and twentieth centuries as protection for personal dignity and the individual’s autonomy when faced with arbitrary action of the part of the state, are left unprotected from the commercial activities of multinational companies that abuse economic positions of power when operating in weak states that are incapable of enforcing their own rights-protection regulations, or where local regulations apply different standards of defense, allowing for actions that violate rights or obstruct national or international controls. it is this new reality, the emergence of multinational companies as subjects of international law, that is driving a new stage in the evolution of human rights protection, which will surely translate in a new stage in the development of international, having significant consequences for global governance and the creation of new legal instruments for managing global coexistence and human rights protection. 3. multinational companies as subjects of international law in the configuration of national and international social reality created by economic globalization, states and individuals coexist with other relevant actors: multinational 12 robertson, geoffrey. crimes against humanity: the struggle for global justice. the new press, (2013). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 218 new instruments for human rights protection in globalization companies that globally meet people, customers, workers, consumers, suppliers, etc. they can escape compliance with national protective legislation, taking advantage of the jurisdictional limits of national legal orders in international contexts, and can avoid applying international standards of rights protection, benefitting from their invisibility as subjects of international law. multinational companies have not recognized their status as legal international subjects in an autonomous manner, nor they have been directly registered as subjects of international obligations and rights. this status is recognized for natural persons, but not for legal persons. therefore, the mandates of human rights instruments must be imposed on them through the state’s intermediary intervention. it is this intermediation that limits preventive capacity and the control of accountability of multinational enterprises operating and developing their business simultaneously in different countries, when committing abuses or violating human rights. explanations of this phenomenon have been proposed by several authors, who see it as a consequence of the commonly-held conception of the effectiveness of human rights, applied since the mid-20th century. the idea is that human right protection is only effective in vertical relationships between citizens (the rightsholders) and the state. human rights protection is deployed vertically. in other words, human rights define how the state should act in relation to its people, preventing the acts of public authorities from negatively affecting their dignity. dignity is defined from the perspective of rights recognized to individual persons. as a result, states are the only institutions bound by obligations arising from human rights precepts, and therefore they are the only ones that must take measures to prevent the violation of human rights on the behalf of third parties, or to ensure that those rights effective in relationships between individuals (what we call “horizontal relationships”). international law does not recognize the direct horizontal effect of fundamental rights —known as the drittwirkung theory—13 or the direct effect of human rights in private relations. in international law terms, rights in private relationships between individuals is mediated by law. using its legal or judicial instruments, the state has to determine how people should act among themselves and prevent violations of human rights in private relations. the legal order controls the actions of companies, corporations, institutions, etc., in businesses that may offend individual dignity. but what happens if this protective legislation doesn’t exist? or if existing regulations are not effective or powerful enough to be enforced against global economic or commercial global entities?14 in the absence of legislation, companies may impose their business criteria or interests, even when they may violate fundamental rights. 13 theory suggested by the german judge hans carl nipperdey in grundrechte und privatrecht, sharp, (1961). 14 the debate on the vertical and horizontal conception of fundamental rights is described masterfully in bilbao, jm, la eficacia horizontal de los derechos frente a los particulares. análisis de la jurisprudencia del tc, cepc, madrid (1997). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 219 ana m. ovejero puente academic opinion generally maintains that the submission of private law subjects to human rights law can only be achieved in the national legal orders. the state (understood as the legislative, judicial and executive powers working for the general interest) can transform general human rights obligations into specific rules, norm or precepts to address specific private situations and can establish effective mechanisms of reparation in case of injury. indeed, law is the mechanism that orders private relationships, developed through private contracts.15 if either party breaches its duty to perform the obligations set forth in a contract, contract law provides damages to the injured party. if either party abuses its superior position, contract law establishes equity mechanism. contract law sets limits on the autonomy of the parties to a contract in order to protect the elemental principles of public policy, national security, democracy, etc., and human rights.15 therefore, there is an indirect link between companies, corporate international organizations, etc. to human rights law, and consequently, it is the law of state and the judges applying the law that determines how companies should act in respect of human rights obligations, what they can and cannot do, and what liability is incurred in the event of infringement or violation of human rights, as well as which are the reparation mechanisms imposed in the event of violations. the normative structure underlying the concept of contract or private relationships is basically and essentially a liberal conception of private autonomy. contract law sets limits on unequal power relations between contracting parties, ruling in favor of the notion of equal respect inter-partes. in that regard, the principle of non-exploitation may include the protection of human rights as on contractual autonomy, and the idea of fairness inherent in contracts. problems arise when contract law fails to include limits on the autonomy of contracting parties, enabling abuse of an unfair or unequal position and, thus violating the human rights of one of the parties.16 at any rate, and according to this conception, companies would not have the obligation to respect human rights imposed directly by any international treaty. and in the absence of any protective contract law, there is no limit to their autonomy to enter into agreements with third parties, based on human rights protection or respect. it is the state that is obligated to protect the people from damages caused by the activities of private entities and, therefore, it is the state that assumes indirect liability for injuries committed by companies. the state must impose obligations on enterprises or 15 contract law imposes duties on parties who enter into an agreement (contractual relationship) as the essential tool for organizing private relationships. within this agreement, both parties are expected to act reasonably toward one another. if either party breaches their duty to perform the terms of the contract, contract law provides damages to the injured party. typically, damages are awarded with the intent to restore the injured party to their positions before the breach occurred, or as if the contract had been performed. 16 under tort law, members of a community are expected to act reasonably toward everyone else within the community. tort law is based on the premise that people are liable for their actions. if someone’s careless actions injure another person, they may face consequences—whether their actions were intentional or accidental. tort law aims to compensate victims for any injuries or damages suffered by the unreasonable acts of others. see in detail the explanation of this theory in gutmann, thomas. “theories of contract and the concept of autonomy”. münster: zvi meitar center for advanced legal studies, (2013). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 220 new instruments for human rights protection in globalization limit their autonomy through the exercise of the legislative power; the state must ensure compliance with such legislation through administrative mechanisms; and the state must investigate and provide resources for the administration of justice in order to determine responsibilities and demand proper reparation in the event of a violation. companies only acquire indirect obligations that are materialized through the action of the state. as noted by the inter-american court of human rights in the velasquez rodriguez case (iachr judgment of 29/7/1988), the responsibility of states is not for the violations committed by a private agent, but for their own failure to take the necessary measures to prevent the violation or to require the effective repair of that violation. the control and protection provided by international instruments is activated against the state in which the affected collective or the victims are located. international liability is not imposed to the companies. it is a reaction against public authorities, who are incapable of guaranteeing respect for human rights; who are unable to remedy the damage caused by the intervention of national courts; or that have increased the harmful consequences of the injury, for example, by preventing or hindering the victims’ access to a fair trial. the doctrine of the “indirect responsibility of the state” is also widely endorsed in the case law of the european court of human rights (echr) in cases such as x and y v. the netherlands (1985), or osman v. uk (1998), and is directly reflected in recent international texts, such as article 3 (4) of the optional protocol to the convention on the rights of children, on the sale of children, child prostitution and child pornography,17 or the united nations convention against transnational organized crime.18 however, the application of this doctrine causes the international system of human rights protection to fail when there is no applicable law, when a judge does not sufficient means for enforcing the law, or when law enforcement is made impossible by the application the principles of sovereignty and jurisdiction. situations, all them very common in underdeveloped countries, with low levels of respect for the rule of law.19 from an international perspective, indirect responsibility theories have been transformed into the generally accepted “principle of subsidiarity”. accordingly, international protection systems, including the most advanced as the european or american system, apply this principle in the protection of rights at the international level (art. 35.1. echr and 2 of the achr).20 this means that, in the event of a human rights violation on the part of a company, neither the echr nor the court of san josé can act on their own to halt or repair injuries committed by private entities. international courts may only intervene once the individuals concerned have requested the protection of their national 17 resolution a/res/54/263 of may 25, 2000. entry into force on january 18, 2002 18 general assembly resolution 55/25 of 15 november 2000 and general assembly resolution 55/255 of 31 may 2001. 19 the world justice project (wjp) is an independent, multi-disciplinary, non-profit organization that works to promote the rule of law around the world and quand annually elaborates a rule of law index (wjp rule of law index). it is an initiative of the american bar association (aba), and it has the initial support of 21 strategic partners. 20 see, vargas vera, “la aplicación del principio de subsidiariedad en la jurisprudencia de la corte interamericana de derechos humanos: avances y retos”, en revista iuris dictio n º 21 (2018), (p. 99109). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 221 ana m. ovejero puente public authorities, including national courts, and when this protection has been denied, has proved to be insufficient or has failed to comply with the obligation to effectively protect the rights guaranteed in international treaties. in the case of violations of rights arising from business activities, protection must be sought from the state, through the fair judicial process. the principle of subsidiarity requires exhausting internal remedies as the primary and priority source of protection, prevention or remedy of alleged violations of international conventions. the principle of subsidiarity is key in all conventional systems and presupposes healthy internal legal systems, with effective means of recourse and reparation against the violations of rights by private persons or companies. the existence of such resources must have “a sufficient degree of certainty, not only in theory but also in practice, because otherwise they would lack the desired efficiency and accessibility” (echr in mcfarlane v. ireland (2010)). but what happens when national remedy systems are not effective vis-a-vis private companies operating in different countries, covered by different standards of human rights protection? what happens when it is difficult for victims to determine the applicable law and to determine which state is truly responsible where a claim should be filed? the international structure created “by” and “tor” guarantee human rights runs the risk of becoming merely theorical, since it is actually only effective when it is applied in states where there is an acquired status and an acceptable level of application of rule of law standards. for the rest, internal systems and international protection systems are de facto inapplicable to enterprises. in the first case, due to a lack of resources. in the second case, because companies are not considered to be subjects of international law. the general acceptance of the theory of “vertical efficiency of human rights”, the doctrine of “indirect accountability” and the principle of subsidiarity explain the inability of traditional international systems to enforce human rights against breaches produced by companies, or private individuals. the human rights and business movement, stemming for the un’s recognition of the conceptual framework “un protect, respect and remedy: a framework for business and human rights” (a doc a/hrc/8/5 (7/4/2008) and the “ruggie principles”(2011) seek fill this void, offering new means of improving human rights protection in the face the new globalized economic powers,21 regardless of the level of protection that national states can guarantee and regardless of the levels of internal application of international law. 21 the “guiding principles on business and human rights: implementation of the united nations framework for protecting, respecting and remediating” were drawn up by the special representative of the secretary-general for the question of human rights and transnational corporations and other enterprises. the special representative attached the guiding principles to his final report to the human rights council (a/hrc/17/31), including an introduction to these principles and a summary of the process that led to its preparation. the human rights council endorsed the guiding principles in resolution 17/4 of 16 june 2011. see in that regard, ovejero puente “los principios ruggie y el nuevo marco de referencia de naciones the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 222 new instruments for human rights protection in globalization this a regulatory but non-normative acquis which introduces, through recommendations and self-regulation guidelines for enterprises, new good governance “duties”, or due diligence responsibilities, which contribute to the sustainability of the business. these references and good practices are not legal human rights protection obligations in the horizontal relations of the company with the third parties (whether customers, consumers, workers, suppliers, etc.), but rather impact the quality of multinational companies’ business. they don’t affect the vertical relationship between companies and states, nor the legislative capacity or intermediary function of the latter. as specified in paragraph ii of the spanish national plan for human rights and business (2017),22 these guiding principles are characterized by the following: a) they are applicable to all states and all companies, both transnational and national, regardless of their size, sector, location, ownership or structure; b) they do not create new obligations under international law, or limit or weaken existing obligations under constitutional or international law; c) they should be applied in a non-discriminatory manner, paying particular attention to the rights and needs of individual members of highly vulnerable or marginalized groups, and risks involving gender discrimination. the ruggie framework considers multinational companies as the main objective of these international instruments, together the with states, although, it is not itself a legal instrument. nevertheless, this regulatory framework notes that international law, as previously understood, and the traditional international legal instruments that we have been using to organize international coexistence are insufficient. personal, commercial and labor relationships that arise as a result of globalization and through the application of information and communication technologies have surpassed the ideas on which traditional international law was based. for that reason, other mechanisms are needed to effectively achieve the same objectives. at the theoretical level, the definition of the human rights to which multinational companies must respond is clear: those contained in the universal declaration of human rights; in the international convention of civil and political rights; in the international convention of economic, social and cultural rights (resolution 2200 a (xxi) of 16 december 1976); and the ilo conventions (freedom of association and protection of the right to organise convention, 1948; right to organize and collective bargaining convention, 1949; forced labour convention, 1930; abolition of forced labour convention, 1957; minimum age convention, 1973; the worst forms of child labour convention, 1999; equality of remuneration convention (employment unidas”, en el papel del abogado en la implantación de los principios ruggie, (c. i) tirant lo blanch, valencia (2016) (p. 15-52) 22 national action plan for companies and human rights, approved by agreement of the council of ministers on 28 july 2017, and published by resolution of 1 september 2017, of the secretary of state for foreign affairs. the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 223 ana m. ovejero puente and occupation), 1958; and the ilo declaration on fundamental principles and rights at work and its follow-up. it is clear what they are and what powers are guaranteed for individuals. the common interpretation of the case law of international human rights courts and national constitutional courts is clear, thanks to the interpretative unification known as “dialogue among courts”.23 we also know the limits the companies may respect, and the limits of the companies’ contractual autonomy in their private relations. it is at the practical level where change must occur. we have to reconsider the effectiveness of the mechanisms by states with regard to the objective of achieving real and effective respect for rights when they are applied to multinational companies’ global activities, and to suggest other international instruments adapted to cross-border environments, capable of verifying and ensuring companies action within their powers, respecting human rights when negotiating or contracting with third parties. whether these mechanisms be a new treaty or a new international court, with international jurisdiction to control that actions of companies as direct subjects of international obligations, is also one of the most active debates. however, is clear that in both cases the prior protective instruments have been recognized as unsatisfactory and insufficient. it has also been acknowledged that multinational companies must be considered full subjects of international law, with their corresponding international liabilities. the ruggie principles and the whole regulatory framework that they implement, are precisely based on the assumption that human rights law is directly inapplicable to corporations and that national governments face limitations when implementing national instruments to effectively protect the human rights of the persons under their jurisdiction. 4. the role of governments and companies in the development of new protection instruments 4.1. on the side of the states the development of new instruments on the behalf of the state has accelerated in the first decade of our current 21st century, as a result of the international economic crisis of 2009. civic and social movements in defense of the fair governance of globalization, such as the world social forum (porto alegre 2012 and 2013), and the global movement of business ethics born during the world economic forum (davos forum) of 2011, placed the debate about the governance of globalization on the public agenda. human rights law was reconsidered as key configurating instrument of international peace and social progress. consequently, the need to redesign the role of multinational companies and governments and their responsibility towards the global society has raised, as well as their 23 burgorgue-larsen, laurence; montoya céspedes, nicholas. “el diálogo judicial entre la corte interamericana de derechos humanos y la corte europea de derechos humanos” en. bandeira, urueña, torres pérez, (coordinadores). protección multinivel de derechos humanos. manual. red de derechos humanos y educación superior, barcelona (2013). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 224 new instruments for human rights protection in globalization leadership position in the current economic environment, for the protection of human rights. the states reacted for the confluence of three movements that were already making changes in that regard: the movements in defense of human rights promoted by the ngos that led public complaints against abusive actions of multinationals; the movements promoting business ethics and theories of corporate social responsibility; and the united nations initiative, developed from the global compact, to search for more effective instruments of human rights protection. governments reacted because they were aware of their limitations to implementing national instruments to effectively protect the human rights of the people under their jurisdiction against multinational companies that extended their economic and commercial power in different countries. they were aware of the burden of responsibility that they would assume in all dimensions: economic, social and reputational, for the damage to fundamental rights on the part of multinationals, when applying the traditional principles of international law. many governments directly adopted the ruggie principles through national plans and strategies to provide better mechanisms to ensure that companies in their territories respect human rights, even when acting abroad. however national plans were not legal rules. they were programs that establish public policies aimed at respecting, promoting and protecting human rights, which were adopted from a transversal perspective and for a predetermined period of time. they identified objectives and goals to be achieved, responsibilities and available financial resources, as well as mechanisms for monitoring and evaluation.24 these national plans reflected the commitment of public authorities to protect human rights from negative impact that business might have, providing possible victims with effective remedies. however, national plans have very few resources to use in achieving their projected goals because, as it has been observed, the commitments arising from the implementation of the measures envisaged “are conditional on the existing budgetary availability in each financial year and on the objectives of budgetary stability” and may not provide a net increase in the costs of personnel at the service of the administration. national plans choose awareness-raising measures and incentives for companies that comply internally with the ruggie framework, rather than any other measure that entail costs for the state’s budget. to-date the following have approved national plans: united kingdom (september, 2013, updated in may, 2016), netherlands (presented in december, 2013), denmark (presented in april, 2014), finland (presented in october, 2014), lithuania (presented in february, 2015), sweden (presented in august, 2015), norway (presented in october, 24 cantú rivera, humberto. “planes de acción nacional sobre empresas y derechos humanos: sobre la instrumentalización del derecho internacional en el ámbito interno”. anuario mexicano de derecho internacional, (2017), vol. 17, p. 113-144 the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 225 ana m. ovejero puente 2015), colombia (presented in december, 2015); switzerland (presented in december, 2016), italy (presented in december, 2016), united states of america (presented in december, 2016), germany (presented in december, 2016), france (presented in april, 2017), poland (presented in may, 2017), spain (july, 2017), belgium (july, 2017), chile (july, 2017), czech republic (presented in october, 2017), ireland (presented in november, 2017), netherlands (2017) and luxembourg (2017).25 in the case of europe, eu member countries have also adopted a general framework, the eu’s “strategy on corporate social responsibility 2011-2014”, which is applicable throughout the eu and which seeks to achieve the objectives of the union on specific human rights issues and basic labour standards, such as child labour, forced labour in prisons, human trafficking, gender equality, non-discrimination, freedom of association and the right to collective bargaining. more recent is the “eu human rights and democracy action plan 2015-2019”, which includes among its objectives progress on human rights protection through different activities to be developed by the member states, the european external action service and the european commission, and initiatives aimed at implementing the guiding principles (paragraph ii. 18). the actions envisaged include the development and implementation of national action plans and other measures affecting the eu’s development cooperation policy in which multinational companies should play a more active role.26 in addition to these instruments, and related to the implementation of public policies, some states have also tried taking a purely traditional normative route, integrating the ruggie principles and its underlying philosophy directly in commercial regulations applicable to multinational companies having headquarters or offices in their territories. in some cases, commercial obligations have been imposed on companies via public audit controls. this is the case of section 1502 of the us dodd-frank act. this act requires us companies to apply obligations arising from the principle of “due diligence” to their supply chains, even when those supply changes are located outside of us territory. this mandate is particularly focused on those us mining companies operating in developing african countries (such as the democratic republic of the congo, angola and sierra leone),27 but the objective of this regulation is to extend the legal obligations of us companies working abroad beyond the territorial principle.28 25 updated listing available on the official website https://www.ohchr.org/sp/issues/business/pages /nationalactionplans.aspx january 29th, 2019 26 marquez carrasco & vivas teson la implementación de los principios rectores de las naciones unidas sobre empresas y derechos humanos por la unión europea y sus estados miembros. (2019). 27 7% percent of companies reported strong efforts to determine whether they bought minerals that benefited armed groups. 28 see lynn, david m. the dodd-frank act’s specialized corporate disclosure: using securities laws to address public policy issues. j. bus. & tech. l., (2011), vol. 6, p. 327. in the opposite position, see seay, laura. “what’s wrong with dodd-frank 1502? conflict minerals, civilian livelihoods, and the unintended consequences of western advocacy”. center for global development working paper, (2012), no 284. the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 226 new instruments for human rights protection in globalization in other cases, the regulation of company disclosure obligations or due diligence processes are used to introduce certain elements of the ruggie principles. the california supply chain transparency act (2010) is an example that applies this scheme by imposing on california companies and external companies operating in california (wholesalers and retailers) the obligation to disclose their efforts to eradicate slavery and human trafficking from their supply chains, and to reveal the measures they adopt to prevent worker exploitation throughout their supply chains.29 a similar uk law, the modern slavery act, came into force in 2015. both usa and uk legislation require multinational companies to publicly report internal actions to protect elementary human rights (fighting against slavery and human trafficking) by activating consumer pressure, with the assumption that the fear of being “named and shamed” will compel companies to do their human rights due diligence. the us congress is presently considering the business supply chain transparency on trafficking and slavery act initiative, which would mandate that public companies disclose measures taken to address forced labor conditions to the securities and exchange commission spanish law 31/2014, amending the corporate enterprises act for the improvement of corporate governance.30 also establishes new rules of good governance inspired by the ruggie principles. these are obligations that will help to improve the corporate governance of spanish corporations, based on transparency and information to third parties, which range from the relations between traded companies and interest groups to corporate responsibility actions, the financial participation of workers, or internal plans and compliance policies. these are measures that apply to all spanish companies, wherever they are located, and also to foreign companies operating in spain. other countries, such as brazil, have adopted a more aggressive public complaint policies against companies that do not fulfill their obligations to respect human rights. brazil publishes a so-called called “dirty list” of firms found to employ (directly or indirectly) forced workers. blacklisted companies cannot receive loans from statebacked banks, face restrictions on the sale of their products, or any other public promotional measure. the government will remove companies from the list after two years if they have paid all required fines and reformed their labor practices. the brazilian congress subsequently approved on june 5, 2014 an amendment to the constitution providing for the expropriation of property where the work practices akin to slavery had been verified. the law establishes that rural or urban properties of companies where government inspectors discover slave workers will be expropriated without compensation and will be used for land reform or social housing programs, depending on their location. the amendment addresses forced labor, exhaustive working 29 california transparency in supply chains act (tisca) 2010. 30 law 31/2014, of 3 december, amending the corporate enterprises act for the improvement of corporate governance. boe no. 293, december 4, 2014. effective december 24, 2014 the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 227 ana m. ovejero puente hours, degrading work conditions or on movement “due to debts owed to the employer”. this 2014 constitutional amendment of 2014 seeks to have a financial —and not just reputational— impact, in order to create strong incentives for companies to better monitor their working conditions. when held legally accountable for their suppliers’ labor violations, corporations more readily identify, prevent, and mitigate human rights abuses. in 2008 brazil prohibited children under eighteen from farming tobacco, and subsequently enacted strict penalties for domestic and international tobacco corporations, including foreign companies, whose suppliers used child labor. human rights watch found that as a result of this, most tobacco companies now require farmers to sign contracts that contain an explicit ban on child labor and mandate financial penalties for noncompliance. company representatives conduct routine site visits to suppliers to reinforce their zero tolerance policies on child labor. various european countries, including finland, germany, italy, spain, and the netherlands, also punish companies in their construction sectors whose subcontractors fail to meet certain labor standards. the judiciary has also helped to create new instruments inspired by the ruggie principles through case law interpretation. for example, applying the prior alien tort act, in february 2012 the supreme court of the united states examined under what circumstances foreign employees of american companies can sue their companies in american courts for serious human rights abuses outside of us territory. in such cases, the ruggie principles become principles of international law, valid for the creation of norms. examples in which ruggie principles provide a source of law are quite scarce. in most states, the public authorities promote internal assessment procedures in companies, or disclosure obligations. in any case, the ability of states to control international economic power and business operations in third countries is very limited, and even more so in developing or economically stressed states. their capacity to enforce national human rights guarantees in international economic transactions is likewise limited. all of these transparency laws alone will not advance the fight for labor or human rights. five years after the original california act, fewer than a third of corporations bound by that law actually published all the information they were required to report. major companies regularly flout supply chain transparency laws. caterpillar, hyundai motor america, and krispy kreme doughnuts have been reported by ngos as making no effort to evaluate and address human trafficking and slavery risks. and the same applies to compliance with other national regulations. it has been demonstrated that consumers don’t care about these reputational impacts for multinational companies. a 2014 poll from ipsos uk31 found that british consumers were largely apathetic to labor abuses in companies’ product supply chains. other corporate practices are more pressing, such as tax evasion, exorbitant executive 31 ipsos mori’s latest sustainable business monitor at https://www.ipsos.com/ipsos-mori/en-uk/consumers -vote-their-feet-corporate-tax-avoidance (visit on feb, 27th, 2019) the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 228 new instruments for human rights protection in globalization pay and corruption. consumers value corporate transparency, but they don’t use this information to demand changes.32 it is clear that corporate transparency alone will not change how firms do business visa-vis human rights principles. governments must hold companies legally accountable when they fail to investigate rights violations in their supply chains or address these abuses when they find them. but governments alone cannot clean up global human rights violations committed through global business activities. we need firms not just to disclose, but to act proactively against slavery and human trafficking risks. 4.2. on the side of multinational companies in globalization multinational companies have mainly sought more favorable economic and regulatory areas for cost reduction, and to benefit from more permissive labor or environmental legislation, in order to maximize their business profits. in traditional business models, it was understood (carroll, 1979)33 that the responsibility of organizations was toward their owners or shareholders, which implies, exclusively, the obligation to create profit and the legal responsibility to abide by local legislation. organizations, using legal and bilateral investment treaties (bit) or complex but legal contractual business frameworks recognized under international trade regulations, evade can evade their responsibility for damages resulting from their business activities in third countries.34 under such behavior lies the theory of the vertical effect of human rights and the theory of the inapplicability of international treaties to corporations, as a fundamental argument for the immunity of multinationals. 32 it has been reported the nudie jeans scandal as a reference of this conclusions. they revealed hazardous denim treatment practices, at nudie jeans, a swedish clothing brand, began disclosing its supplier lists and factory audit reports. however, the company found that consumers were subsequently more willing to purchase its products, despite the fact that reports revealed some workers treat the jeans with dangerous chemicals that cause potentially life-threatening respiratory disease. the same situation happens to patagonia, the american outdoor clothing company, who has declared that is 33 this basic theory was exposed by carroll in well known article carroll, “a three-dimensional conceptual model of corporate performance”, academy of management review, (1979), (vol. 4, no. 4), (page. 497-505), mohammed, abdulalem; rashid, basri. “a conceptual model of corporate social responsibility dimensions, brand image, and customer satisfaction in malaysian hotel industry”.kasetsart journal of social sciences, (2018), vol. 39, no 2, (p. 358-364). ruiz acosta, liliana elizabeth; camargo mayorga, david andrés; becerra fernández, mauricio. proposal of a social responsibility indicator model based on systems dynamics ssrn (2019). 34 to illustrate this idea, significant international cases of human rights violations on the part of multinational companies include: philip morris vs uruguay, commenced on 19 february 2010 and not yet completed (icsid case process no. arb/10/7; ftr holdings s.a. (switzerland) and others vs. eastern republic of uruguay); pacific rim cayman ilc vs republic of el salvador (2012); pac rim cayman llc vs. the republic of el salvador, icsidrb/09/12); and chevron vs. ecuador, initiated in 2003 and not completed, which was brought in a collective claim by over 30,000 ecuadorian indians before an ecuadorian trial court against the oil company for poising the waters of lago agrio in the ecuadorian amazon. the contamination is claimed to have caused a thousand deaths from diseases prompted by completely open that human trafficking persists, despite its longstanding social responsibility efforts, and its customers keep buying texaco’s dumping during extraction in the region from 1964-1992, under the protection of the bit between texaco and the government of ecuador, signed in the 1990s. the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 229 ana m. ovejero puente but the philosophy of profit was overcome by the theory of corporate social responsibility, although there are still many corporations that do not accept it in practice. thus, there may be a dissociation between the internal policies of a company, applied according to the principles of social responsibility, and its they way it actually conducts business, aimed at maximizing of profits, and which result in aggressive business practices with an impact on human rights. the reaction of multinationals to violations arising from their business practices often follow similar patters: first, in most cases the cause of the rights violation is not an illegal action on the part of the multinational, so there are no legal grounds on which to base a claim. companies turn to legal advisors, who determine limits set forth in local legislation, limits to judicial remedies, or whether prior bilateral investment treaties (bit’s) apply, which take disputes out of the hands of the national judiciary to be determined by international arbitration courts. secondly, companies know that in many cases the victims, for one reason or another, have limited access to the courts and do not have the instruments to bring claims against the company for liability, or against the state for indirect liability, which is of particular concern when this affects victims of vulnerable groups such as indigenous peoples or women and children. but when pressure is exercised by global society, demanding more effective instruments for human rights protection, companies react positively, defending ethical businesses to achieve socially sustainable globalization, and assuming their role and their responsibility in the defense of human rights. although this reaction is often more cosmetic than real, if we consider the actions taken by companies to avoid infringing rights when they do business. the object of the ruggie principles is precisely to assist companies in this area. in that regard, the “protect, respect and remedy framework” is an ideal tool for two reasons: a) it is not a disruptive innovation in international law, but rather is based on the essential international consensus on actions of protection that can be taken by states and companies in the present circumstances, and b) it is a practical and enabling standard, which seeks to achieve greater effectiveness through acceptable and voluntarily-assumed conduct on the part of companies, which does not take into account the legal obligations or the levels of integration of human rights law into the national regulations applicable to them, and which goes beyond the enforcement capacity of states. companies accept these because they enable them to create more sustainable businesses and safer investments. states accept them because they do not have to generate new public resources and they complement traditional constitutional and international protective legal instruments. like other initiatives promoted by united nations in the 1990s and during the first decade of 21st century, such as the 2000 global compact,35 companies have adopted the ruggie principles as part of the activities and commitments undertaken in their corporate social responsibility (rsc) policies. the ruggie principles are the distinctive symbol 35 for details on the global compact sagafi-nejad, kind; dunning, john h. the un and transnational corporations: from code of conduct to global compact. edit. indiana university press, (2008). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 230 new instruments for human rights protection in globalization of “ethical companies” that operate according to the “code of good governance of the sustainable enterprise”.36 socially responsible companies seek to create “economic, environmental and social value in the short and long term, contributing to the wellbeing of present and future generations, both in their immediate environment and on the planet in general”. these companies have their reputation conditioned by being able to demonstrate (knowing and showing theories)37 that they observe socially responsible behavior, that they design strategies and establish internal management procedures bearing in mind not only the economic dimension of their business actions but also their social and environmental impact and, above all, their impact on human rights. corporate social responsibility (csr) includes all business decisions that are adopted beyond strictly economic and/or technical interests of the firm and has to be transparent and accessible for company stakeholders. is in the company’s better interest to demonstrate its ethical and sustainable ability to do business.38 the consequence is that, step by step, companies develop internal policies, internal codes of conduct for employees or corporate good governance guidelines. they consolidate behavior, habits and business practices that become obligations toward third parties and their stakeholders that reach beyond the logic of “submission to the legal precept” imposed by the rule of law and the national courts. in assuming the ruggie recommendations, companies assume obligations vis-à-vis third parties, similar to the obligations they assume with regard to the product quality, pricing or advertising. depending on how these commitments are expressed or projected externally and how they apply to the day-to-day running of the business, they may become contractual obligations or incur contractual liability: “lex inter-partes”. their fulfilment will then be no longer voluntary, but rather may become legal obligations subject to claims in national courts for extra-contractual liability. commitments to respect human rights become contract clauses that benefit third parties maintaining relationships with the company (whether they be investors, suppliers, insurers, etc.), then voluntarily-assumed commitments will have been transformed into compulsory contractual undertakings, into clauses in private agreements, which are enforceable, as are all contract clauses, in national or international civil and commercial courts, depending on the type of instrument. however, even if such commitments are not included in specific contract clauses they may also generate expectations of certain behavior, and may be capable of generating an extra-contractual liability for which companies will have to answer when they “violate the duties of monitoring people and things that are under their purview and fail to use due diligence when hiring workers and 36 the “code of good governance of sustainable enterprises” was commission by the driving entities of the sustainable development forum: iese, pricewaterhousecoopers and fundación environment (2002). see, in that regard, ricart, j. e.; rodríguez, m. a. código de buen gobierno para la empresa sostenible. foro empresa y desarrollo sostenible, barcelona, (2002), y de la cuesta gonzález, marta; martínez, carmen valor. “responsabilidad social de la empresa. concepto, medición y desarrollo en españa”, boletín económico de ice, 2003, (nº 2755), ice economic bulletin, 2003, (no. 2755). 37 see scheper, christian. ‘from naming and shaming to knowing and showing’: human rights and the power of corporate practice. the international journal of human rights, (2015), vol. 19, no. 6, p. 737756. 38 gonzález, o. j., et al. el libro blanco de la rse en españa: la gestión de empresas desde la responsabilidad social. en international conference on industrial engineering and industrial management– cio. 2007 the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 231 ana m. ovejero puente overseeing their actions” (opinion of the supreme court, sts 6/6/1997, resource no. 165/1993). and this applies both to committing acts infringing human rights and failing to adopt measures to control or prevent human rights violations, or for having failed in attempts to do so (sts 606/2000 of 19/6/2000, resource no. 3651/1996). in short, in the private sphere, the ruggie principles and the obligations assumed by companies become current law, achieving normative status when they are reflected in contract clauses or when they generate legitimate expectations of behavior capable of extra-contractually affecting third-party relationships. therefore, the transformation takes place through the application of typical instruments of private law: by contracts and tort law and by endowing, with real effectiveness, the initially voluntary commitments of respect of the human rights public law for private entities. thanks to private international law, the legitimacy and efficacy of these private legal obligations transcend borders because they are able to solve the conflicts applying its own instruments of claim, even transnationally. this is a step ahead of the ruggie framework and is the key to innovation in the creation of law in globalized environments and in the development of new really effective instruments of international human rights protection. another example of this transformation is reflected in commitments of investors themselves, especially those produced by social investment funds and institutional investors present in all asset shareholdings in the world. they may comply with their own ethical and rsc commitments by formalizing extra financial-requirements in risk operations. as an example of this, the commitment that insurance companies should focus their investment portfolios in equity securities that expressly pledge respect for human rights (such as the norwegian oil fund), so that the funds do not invest in business activities that do not offer guarantees in that regard. this type of commitment is publicly communicated to minority shareholders and affects the sustainability indices of which companies are or may be interested in becoming a member (such as the ftse4good and dow jones sustainability index). in this way, commitments to respect human rights are transformed into investment conditions that can lead to the strengthening of practices in this area. and the same applies to insurance companies, which are a determining factor in the transformation of the recommendations into fully-enforceable rules of law. first, because they are themselves subject to compliance with ruggie principles in their business activities. secondly, because when evaluating the risk of an international commercial or financial operation with a multinational client, the insurer must also calculate the risk that the commercial or productive activity of the insured company can generate with regard to the human rights of third parties, and the economic consequences that this may have on both the company itself and the insurer, when the client’s activities result in a claim for compensation for damages arising out of a human rights violation. for this reason, they may begin to adopt additional measures to protect themselves from human rights violations committed by their client’s companies. this type of measures likewise obliges multinationals to adopt internal practices that minimize risks in their commercial activities, in order to avoid insurance-related problems. in addition to internal rsc practices, adopting the recommendations and the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 232 new instruments for human rights protection in globalization assuming them as real obligations to be undertaken in their business activities become a sine qua non requirement to obtain insurance cover. this type of measure also extends to insurance agencies or investment guarantee institutions that require due diligence from their clients in matters of human rights. finally, voluntary commitments to respect the ruggie framework are also transformed into a mandatory legal rule through corporate governance standards. in fact, in the late 1990s, good governance standards offered guarantees and guidelines that facilitated the efficient management of business organizations and guidance for managers for the social good or the general interest of the company, represented in its shareholders. thus, the standards of good governance have generated the necessary indicators to determine the due diligence of managers and the fulfilment of their obligations as such. in that regard, an example may be found in the spanish olivencia report,39 which contains specific recommendations on good governance practices capable of redirecting managers toward the interests of shareholders. codes of good corporate governance achieved normative status in the eu in 2004, but were not as effective as expected in preventing systemic crises in international financial market, such as they did not give all the fruits that were expected to prevent systemic crisis of international financial markets, such as the one in 2009. under the codes, even while formally complying with recommendations, certain unscrupulous activities continued, such as abuse of privileged information, in full view of authorities, regulators and rating agencies. consequently, corporate governance due diligence began to include ethics commitments for managers, in order to create value in their decisions and increase confidence in their business activities and investments. these ethical criteria are directly related to respect for human rights and to the incorporation of ruggie principles. thus, a correct interpretation of “acting with due diligence in business” implies that managers and business leaders assume their own commitments, while ensuring compliance with the obligations undertaken by the corporation. what was initially applied voluntarily has become essential to accredit good governance and the creation of value for the company. and it is precisely respect for due diligence undertakings that may eventually exempt the company’s executives from direct individual legal liability in case of damages to third parties, which in some countries, as is the case in spain, may even incur of criminal responsibility. the introduction of ruggie recommendations into the governance of multinationals at all levels, from management activities to supply contracts with other companies, dismantled the current validity of the efficient market theory (developed during the 1960s at the university of chicago and in vogue until the 1990s), because the creation of value is not definitively determined by share price, but rather is linked to the longterm life of the 39 see, for more details, sison, “the cultural dimension of codes of corporate governance: a focus on the olivencia report”. journal of business ethics, 2000, vol. 27, (no. 1-2), (p. 181-192) the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 233 ana m. ovejero puente corporation, which not only depends on quantitative benefits, but also on the achievement of a wide range of intangibles that guarantee the sustainability of business and investment. the set of “soft law” regulations that companies have formed to structure and order business behavior and its relations with third parties, have been proven more effective than traditional international law for the organization of fair horizontal relations that globalization today. this new paradigm of management or international governance is what leads us to consider this private form of organization, founded and limited by the respect for human rights, as an effective way of ordering coexistence in globalized environments, and which may be extrapolated to other areas of law. this has been created progressively, but now more and more international companies are demanding compliance with these standards and commitment to socially-responsible and sustainable behavior, and more companies apply them beyond the strict fulfillment of the local law. therefore, two types of obligations are generated for companies with regard to respect for human rights: some imposed directly in the positive legislation of the states (on both sides, the states to which they belong and the states where they operate), which depends on the levels of integration of international human rights law in national internal systems or the constitutional development of international instruments for the recognition and protection of human rights. other obligations, which they must assume voluntarily, including those in contract clauses or in commercial or business undertakings with third parties, which imply adopting ethical management criteria beyond commercial and public expectations that society may have (business for social responsibility). these soft law obligations combine social and environmental aspects in companies’ operations and in their interaction with other stakeholders on a voluntary basis (european commission); and incorporate respect for ethical values, people, communities and the environment (acción rse, chile). in both cases ruggie principles have provided a source of law and, thanks to them, human rights law acts as imposed (self-imposed or legally-imposed) limits in private relations, acquiring horizontal efficiency. at the present conjuncture multinational companies are the ones assuming a more prominent role in the development of these new instruments of human rights protection, due to their international expansion, size, complex structure and capacity to operate in more than one jurisdiction (either directly or through subsidiary companies), having multiplied their capacity to influence in economic, commercial or financial relations throughout the world.40 many of them were already dealing with human rights as part of their internal rsc actions and plans, even before the publication of the ruggie principles: gender equality plans, actions against racism, environmental campaigns, integration strategies for people with disabilities, etc. 40 in anguita oyarzún, “el rol del derecho en la responsabilidad social de la empresa”, en ars boni et aequi, (2017), (vol. 8, nº 1), (pp. 215-233)). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 234 new instruments for human rights protection in globalization and then companies applied their own criteria and commitments that, with regard to their stakeholders, the consider more advisable or profitable for their business, on a case by case basis. multinationals’ adoption of ruggie principles and their implementation of this regulatory framework provides a more homogeneous perspective and understanding of human rights limits and content worldwide world. and this is what helps to generate a common and valid conception internationally concerning new instruments of human rights protection and their usefulness and effectiveness. 5. soft law and hard law: advantages and disadvantages despite the fact that the ruggie principles were well-received in multinational enterprises, cases of rights violations by multinationals in developing countries have continued in recent years. the ethic of profits continues to justify companies’ strict submission to current legislation. and in any case, the incorporation of the obligation to respect human rights in private regulatory instruments, such as contracts, only provides for obligations of action, not of result, and are binding only on the parties to the contract, and not on third parties who may be injured by the rights violation, although the business’ risky or harmful behavior may involve workers, users, or others affected by the negative impact of its business practices, and who are not party to the commercial transaction and cannot bring a claim for compliance. this failure has led non-governmental organizations and international institutions to consider whether these are indeed effective measures, or if it would be better and more effective to apply positive legal standards through traditional instruments, given the importance of the rights to be preserved. as we have seen, the transformation of the ruggie principles into legal obligations has been achieved through different mechanisms: in some cases, the national states include the principles directly in national regulations (hard law); in others, companies assume them as “self-obligations” in soft law instruments, which acquire normative force when included in contracts, or in legal commercial relationships. the concepts of “hard law” and “soft law” are widely used in academia to describe the different scope of rules and regulations in international law that shape the relationships between states or between states and individuals. the concept of “hard law” applies to the treaties and laws adopted by states. they are norms, rules, acts and other legal provisions enforced by the state, which can be imposed by the binding force the law and the power of the state.41 the concept of “soft law” is usually applied to a set of mechanisms, such as declarations, resolutions, plans, action programs, recommendations, etc. that reflect compliance with the rules established under international law, without generating new obligations having the force of law and directly actionable in court. soft law may provoke indirect legal effects when 41 about the definition de hard law see stefan, o.a. “european competition soft law in european courts: a matter of hard principles?”, european law journal, 2008, (vol. 14, no. 6), (page. 753-772). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 235 ana m. ovejero puente it affects relationships with other subjects, and it is understood that the adoption of these mechanisms constitute a first step toward their becoming “hard law”. currently the division between “hard” and “soft law” is more diffuse. first, because states adopt both instruments in a strategic way to ensure a relevant position within the international community or to better achieve their international goals. secondly, because, commencing with the grimaldi judgment of the european court of justice,42 the differentiating elements (the existence of “binding force” or “binding effect”) was determined to be difficult concepts to distinguish in practice, making it impossible to judge infringements on the basis of that criteria. according to the judgment, it is clear that instruments of “hard law” have binding force and effect, while those of “soft law” they only have binding effect, but in practice what is the difference? thirdly, because given the current complexity of legislative process -both in national parliaments and international fora for the creation of international lawgovernments prefer to resort to simpler regulations, with less complex drafting procedures, such as recommendations, or guidelines, which have the same effect on general public opinion. professors shaffer and pollack have established three ways for states to use soft and hard law standards, depending on their power and positioning in international contexts.43 the first one is used by states that are considered “powerful” among them when they agree on developing a common policy or joint action to resolve a common issue. in this case they use the tools of “hard law” in the form of a treaty or by-passing national legislation. when the issue affects less powerful states, then “hard law” law is supplemented with “soft law”, in order to implement international legal provisions in the most efficient way possible. in such cases, the use of “hard law” or “soft law” it is insignificant because there is a prior agreement on the measures to be taken and both have binding force and effect. for less powerful countries “soft law” becomes hard law in the medium term. the way is also used when powerful states disagree. in this situation, states begin to align themselves to share common positions and to form blocks of states that may impose their positions to adopt the legal provisions they require. for this initial stage to commence negotiations and form blocks, the first use “soft law” measures that hesitant states will more easily agree with, allowing them to gain advantage over states that are totally at odds. the third way is used by “less” powerful states when they disagree. they prefer measures of “soft law” because they allow much more flexibility as to how to achieve the objectives imposed by the powerful states, without aggravating them or publicly contradicting their proposals, allowing the less powerful states to move forward affecting the force of their own internal practices. 42 case c-322/88, grimaldi vs. fond des maladies, (stsj 13/12/1989) e.c. r0 i-4407 43 in shaffer, & pollack, “hard vs. soft law: alternatives, complements, and antagonists in international governance”, minnesota law review (2009), (vol. 94), (p. 706 and ff). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 236 new instruments for human rights protection in globalization according to this theory, it is clear why the ruggie principles and the new united nations regulatory framework adopted the form of recommendations and soft law. the most powerful countries had not reached an agreement on the measures applicable to multinational enterprises in order to impose obligatory transnational treaties guaranteeing respect for human rights. however, the application of the logic and the influence of common law on the new model for responsible corporate action transform the soft law measures into internal obligations and rules, capable of uniting companies and being enforced in court using the legal mechanisms of private law. the advantages of soft law instruments are many. in fact, the united nations uses this type of voluntary action on many occasions, considering them more effective than traditional forms of protection such as treaties or conventions, or purely conventional rules of international law. initiatives such as the 1990 “code of conduct for transnational corporations” or the 2003 “corporate liability rules” are good examples. they provide friendly ways of generating change. from a strictly legal point of view or “hard law”, there hasn’t been in spain nor at the european level, any in-depth reflection on the role that these new instruments of extraterritorial human rights protection may play in countries where constitutional rights enjoy little protection. no conclusion has been reached on the transnational nature of their binding force, which allows them to be applied or enforced beyond the territorial boundaries of national legal orders, or under the jurisdiction of national courts. moreover, in weak states, with deficient guarantees with regard to the rule of law principle, the problem resides not in the absence of guaranteed legislation, but in the lack of mechanisms of enforcement. the force or binding effect of one formula or the other (soft or hard) depends on the existence of institutions unassociated with the parties in conflict, capable of determining liability and resolving problems arising from legal or self-imposed obligations. in short, the problem lies not much in the nature of the rules that establish the required conduct, but in the existence of international courts capable of determining companies’ legal responsibility and executing measures put in place to remedy damages they may have caused. using ruggie language, the success of the system is not much depending on the right application of the principles of respect or protection, but in the existence of effective remedies for the reparation of damages caused to human rights. the international order and national systems, even those in the weakest states, clearly establish the legal responsibilities which the private subjects may incur when infringing human rights. but their laws are lax, and their labor and tax control institutions weak, with insufficient means to ensure enforcement. on the other hand, and particularly after the 2009 world crisis, the states have no economic resources to provide incentives to influence corporate behavior. there are high levels of corruption, public officials without specialized training, prosecutorial systems devoid of guarantees, and an inability to demand that the great economic and commercial powers assume their responsibilities. thus, traditional legislation doesn’t produce the desired effect, and soft law can play a role the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 237 ana m. ovejero puente in filling the gaps of governance or in weak points institutions of control or enforcement, without altering the sovereignty of the states while preventing areas of impunity. the disadvantages of hard law, the institutional crises that many european countries are experiencing in relation to the eu, the delay in developing timely legal responses (which is exacerbated when it comes to reaching international consensus) and the powerful movement to strengthen private regulations have all increased companies’ preference for soft law regulations, which they consider more advantageous.44 as a result, there is much debate as to what is the best regulatory model to apply to human rights protection in globalized personal relationships. and the two predominant cultures or legal traditions have different perspectives. however, the purpose of debate is the same now it was in 1789, when the first declaration of the rights of man called for the effective protection of human rights and the dignity of the person as the only limit to the exercise of power, whether it be political or economic, de facto or de jure, national or international. the two positions may be summarized as: those who express a preference for hard law, that is, the signing of an international multilateral treaty that recognizes multinational companies as subjects of international law and that imposes upon them legal obligations to respect for human rights; and those who defend soft law regulations or create a “culture of compliance”, through good practices and internal plans and policies, which are equally binding as legal rules when undertaken in private agreements. in both cases, (a) companies would be considered directly or indirectly subject to international law, which constitutes a tacit and universally-accepted recognition of their capacity to be the subject of international obligations and is the first step in the creation of a truly international trade law common to all states, aimed at regulating the exchange of goods and services, the relations between private parties, or the cross-border provision of services in an open international, commercial or financial environment; (b) human rights would be fully constituted as limits to the action of economic and business powers (in the same way that they were considered as limits to political power), as well as limits to the exercise of private autonomy, thus becoming the foundational instruments of a new (public and private) regulatory system of globalization. defining of multinationals as subjects of international obligations would undoubtedly require a profound transformation of all positive regulations currently underpinning international trade and economic relations, with unpredictable results. but most important is the role that human rights would play in that transformation. to-date there is no declared nor case-law established hierarchy stating that commercial or investment contracts, agreements or treaties should be subject to respect for 44 see aparicio gonzález, m. l “el gobierno corporativo: entre el derecho y la ética empresarial», revista de derecho mercantil, no 257 (july-sept 2005) (p. 1131-1145). the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 238 new instruments for human rights protection in globalization human rights, guaranteeing that they take priority and are fully enforceable both nationally and internationally. invoking article 53 of the vienna convention, which deems void any treaty contravening an imperative rule of international law, such as human rights, would be a good starting point for this interpretation. this would transform respect for human rights into a supra-conventional obligation, applicable in all private and public legal instruments, as the main principles and sources of further international law developments. this supra-conventional principle of respect of human rights would also apply to the regulation of the operations and powers economic and financial institutions such as the international monetary fund or the world bank, essential for the workings of economic globalization and making them subject to international institutions of human rights protection, such as the european court of human rights, inter-american court of human rights, un high commissioner for human rights or the un commission on human rights. this new position of human rights as a prevalent principle of international regulation will have numerous consequences. for example, so-called “deregulation” instruments such as bilateral investment treaties (bits) could not be used to avoid obligations imposed by international human rights law, that both national and international legal orders impose on states and individuals,45 and integrating these obligations into national constitutional frameworks and human rights law systems would be ensured in all countries. thus, the power of the guiding principles and the “protect, respect and remedy” framework promoted by the united nations will have achieved its objectives as instruments for the transformation of international human rights law, accelerating the debate concerning legal instruments for governance of globalization and the role of human rights in the management of globalized relations. 6. final conclusions: the convergence of systems as rules for complex globalization the current international economic system is supported by the coexistence of these two models for regulations, and therefore, it is increasingly and openly recognized that we need both to regulate globalized environments. that converging traditional national systems for human rights protection the recommendations, plans, guiding principles and public incentives that promote soft forms of self-regulation and the internal implementation of good practices respectful of human rights, that extend beyond the limits of the legal enforcement. good practices and a culture of compliance are assumed vis-a-vis third parties and are seen as complementary in achieving the public and private goals of states, citizens, ngos and companies in their human rights commitments. they initially take the form of 45 it should be noted that most internationalization of business during the 20th century was conducted within the framework of bit that by-pass national laws guaranteeing third-party investments in high-risk countries. all of them represent an anti-guarantee international trade model, certainly not focused on the defense of human rights, as an instrument of economic and social development. the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 239 ana m. ovejero puente recommendations or good practices but are transformed into full legal obligations when included in contract clauses that parties have the obligation to perform. both the rules created by hard law, as those created by soft law are of interest to multinationals due to their capacity to make business sustainable. and it is precisely this aspect that has served as an incentive to change. respect for human rights brings measurable economic and commercial value but it continues to be based on international consensus concerning the essential protective actions to be taken to protect vulnerable communities and people. that is why, from a legal standpoint, the governance of globalization is complex, and it will be equally necessary to use different levels of binding force or enforcement when enacting norms or rules to ensure coexistence among people, states, companies or institutions. legal certainty will be achieved when we are able to integrate all of these instruments into regulations applicable to personal, commercial, financial and social relations. this is the essential premise that differentiates the “human rights in the company” movement any of the previous approaches found in mechanisms of international law. as the spanish state plan underscores in its preamble and as established its regulatory framework, “these guiding principles, which are in force in international law, have been set forth for all states and for all companies, transnational or otherwise, regardless of their size, sector, location (whether in spain or abroad), ownership, or structure”. from a practical perspective we must take advantage of soft law’s capacity to generate homogeneous patterns and standards of respect for human rights, through international commercial networks created among companies, although this calls into question international court’s exclusive jurisdiction to define the content of rights. we must also admit the advantage of international treaties to ensure respect for human rights in a globalized world, and to manage new international relations in which multinational companies and international corporations assume an essential role. because, the protection that citizens cannot only be provided against actions of the state, but also against companies that interact with them and that decisively condition their economic development. the means for achieving this may be mixed; this is not an essential matter. the point is how to enjoy fundamental rights even when there’s no executive power to enforce them. the network of relationships between individuals, natural and legal persons, is more powerful in situations affecting the rights of the person, than the relationship between citizens and the state and requires different instruments from those regulating relationships between individuals and states. treaties, i.e., hard law, are essential for establishing a framework of reference: the definition of human rights and its essential content, and international instruments of control and supervision, whether they be international courts or arbitration and mediation boards that ensure the contractual liability of the parties in the event of non-compliance and access to systems of redress and remedy, such as procedural principles and guarantees that ensure the equality of arms and parties’ right to defend their legitimate interests. the age of human rights journal, 14 (june 2020) pp. 211-243 issn: 2340-9592 doi: 10.17561/tahrj.v14.5484 240 new instruments for human rights protection in globalization for everything else, self-imposed obligations to respect human rights can overcome national laws that are limited in scope either due to the weakness of the state that passed those laws, for lack of means of enforcing them, due to corruption or political inaction, or other factors, even when the legislation itself renders respect for human rights impossible. responsibility assumed voluntarily by a company transcends its specific legal obligations and shields it from changing or unfair legislation. in any case, the utility of companies’ soft law regulations has to be seriously considered as a new and effective way to govern international relations nowadays, where states, companies and people can coexist, if they are based on the respect of human rights. the stimulating idea is that this new binding order comes from private institutions and is born by the action of private persons and not by the activity of public legislative forces. it is the agreement between individuals, even when these individuals are multinational companies, which allows the creation of social networks that function in the respect of 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principles?”, european law journal, 2008, (vol. 14, no. 6). https://doi.org/10.1111 /j.1468-0386.2008.00443.x vargas vera, “la aplicación del principio de subsidiariedad en la jurisprudencia de la corte interamericana de derechos humanos: avances y retos”, en revista iuris dictio n º 21 (2018). https://doi.org/10.18272/iu.v21i21.931 vv.aa, “code of good governance of sustainable enterprises”, sustainable development forum: iese, pricewaterhousecoopers and fundación environment (2002). received: january 1st 2020 accepted: march 3rd 2020 new instruments for human rights protection in globalization abstract keywords summary 1. introduction 2. global compact, ruggie principles and the new framework for a more effective international system of human rights protection 3. multinational companies as subjects of international law 4. the role of governments and companies in the development of new protection instruments 4.1. on the side of the states 4.2. on the side of multinational companies 5. soft law and hard law: advantages and disadvantages 6. final conclusions: the convergence of systems as rules for complex globalization bibliography human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 1 human rights obligations, especially, in times of crisis maría josé añón* abstract: this article is a critical reflection on human rights obligations and the changes that have taken place in their conception and functions, as well as their impact on the protection of human rights – especially in crises. the text is divided into two parts. the first section presents the features that characterise human rights obligations while focusing on the arguments that give them identity and reinforce their binding nature, with human beings as the subjects of rights and beneficiaries of obligations that broaden the responsibility of the obligated states. the second section analyses these obligations in times of crisis, such as the covid-19 pandemic. therefore, this piece of research focuses on two significant legal situations based on the relevant elements of obligations: on one hand, it critically reflects on the derogative clauses in obligations, and, on the other hand, reviews the prohibition of regression or dilution of human rights as a guarantee for the maintenance of such obligations. keywords: human rights, obligations, collective guarantee obligations, derogation, limitation of rights, obligation of progressivity. summary: 1. introduction. 2. characteristics of human rights obligations. 2.1. the objective nature of obligations. 2.2. obligations independent of the principle of reciprocity. 2.3. collectively guaranteed obligations. 2.4. obligations arising from mandatory rules. 2.5. obligations towards people – beneficiaries of obligations. 2.6. extension of accountability 3. maintenance obligations in times of crisis. 3.1. derogation and limitation of rights. 3.2. prohibition of regressivity. 4. concluding notes. 1. introduction this article reflects on the importance of the evolution of the obligations associated with human rights and on the changes that have taken place in their conception and functions, and the repercussions on the protection of human rights – especially during crises. these are periods in which the explanations for justifying the derogation of obligations, the regression of rights, and excesses in rights limitations seem to be growing, and therefore when obligated states have an even greater responsibility in the face of non-compliance. by examining the characteristics of human rights obligations from the point of view of its practice, we find keys to understand the unfinished evolution towards a universal system of human rights protections within united nations, which is the focus of this analysis. this set of norms acquired, during its development, its own identity as it created its own legal corpus. moreover, human rights obligations attained new characteristics that distinguish them from other types of right obligations inherent to public international law. this was the paragon initially used to develop the current human rights system. this does * full professor of philosophy of law, universitat de valència, spain (mariaj@uv.es). mailto:mariaj%40uv.es?subject= human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 2 not mean that the human rights system constitutes a closed circuit ‘in the sense that they would completely and finally exclude the application of the general law, that is, general customary law and general principles of law’ as the international law commission (2006: 92-93) stresses out, but above all because, as mégret (2010) points out, this evolution is based ‘in the fact that human rights are intrinsically different in nature and belong to a very different history and teleology than general international law’. the proclamation of the universal declaration of human rights and the subsequent developments in international human rights law allow us to affirm altogether with cardona (2016: 132) that we have a system for protecting human rights.1 in this system, human rights treaties have a normative value, and rights protection is the responsibility of the international community (which has a legal interest in reacting in the event of serious human rights violations). cardona explains that to respond to these requirements, the international legal regime has adopted certain features. it is a legal regime of a general nature that is endowed with peremptory norms and general obligations and whose guarantor is the international community. this is an evolution in progress and it is characterized by clear advances in two directions: on one hand, the determination or establishment of obligations linked to human rights; and on the other hand, the institutional framework for the application and protection of rights, in particular, the identification of human rights violations and the adoption of protective legal decisions. the relevant sources of knowledge are broad and reflect a field in which contributions of various kinds converge. these include the normative content of treaties, their interpretation and application, the contribution of treaty monitoring bodies and other bodies, the decisions of international courts and tribunals, international organisations, the impact on national jurisdictions, the action of states and other obligated subjects, the growing contribution of various actors such as human rights defenders, academia, organisations, and non-government organisations. the legal, political, and ethical perspectives on the more conceptual aspects of obligations are also relevant in this itinerary. although this article is not the place to do an in-depth, i will briefly point out that an initial conception of obligations is linked to the strengthening of the protection system through legal. this is a perspective which, although insufficient, is necessary. the legal regime of human rights is identified, in medina's words, as ‘a system for protecting human dignity that constitutes a true international public order, the maintenance of which must be of interest to all states that participate 1 this work has been carried out within the framework of project der2016-78356p ‘transformations in justice. autonomy, inequality, and exercise of rights’ which is part of the national programme for research, development, and innovation – as well as project prometeo2018-156 (generalitat valenciana). a legal corpus consisting of the rights included in the nine united nations human rights treaties and their protocols, as well as an institutional architecture that includes the committees for each of the treaties, that is, the bodies with the power to control and supervise the fulfilment of human rights by states. both the rights and the institutional dimension constitute the legal regime of human rights. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 3 in the system’ (2005, 209). however, the normative theses that encourage associative, cooperative, and political conceptions of rights cannot be ignored (iglesias 2016). neither can we ignore a legal perspective based on the legal practice of human rights (lafont 2020) and oriented towards the extension of responsibility for the violation of human rights, and the recognition of non-state subjects as having a duty, simultaneously and separately, for the possible responsibility of the state according to the specific duties it has in such circumstances (chodry 2018, 16). we must also recognise supranational and extraterritorial state obligations related to the promotion and respect for rights, and obligations towards non-citizens interpreted in terms of duties towards the international community (fraser 2008: 222-32, 239, 247, 260). thus, i will approach to the topic in two parts. the first part presents those features that characterise human rights obligations. the aim is to understand how the respect, support, and protection of human rights are obligations for all states. a special attention is paid to what reinforces their binding nature and broadens the responsibility of the obligated subjects: the position of the human being as a subject of rights and beneficiary of obligations. the second part analyses these obligations in crises such the covid-19 pandemic. based on the relevant elements of obligations, i focus on two significant legal situations: the derogative clauses of obligations and the prohibition of regression. ultimately, i argue that recognising the evolution of obligations and incorporating these changes into human rights theory helps to test whether these legal situations advance the protection of human rights. 2. characteristics of human rights obligations in order to start with the study of the characteristics of human rights obligations, i would like to analyse a text from the inter-american court of human rights.2 it is an advisory opinion that summarises the main theses on human rights obligations and echoes the approach of the european commission of human rights3 and clearly expresses an affirmation of human rights obligations. i reproduce the whole paragraph. 29. the court should emphasise that modern human rights treaties in general, and the american convention, are not multilateral treaties of the traditional type that are concluded based on a reciprocal exchange of rights for the mutual benefit of the contracting states. the purpose of modern human rights treaties is the protection of the fundamental rights of human beings, irrespective of their nationality, both regarding their own state and regarding other contracting states. in adopting these human rights treaties, states submit themselves to a legal order within which they, for 2 inter-american court of human rights advisory opinion oc-2/82 of 24 september 1982 on the effect of reservations on the entry into force of the american convention on human rights (arts. 74 and 75) as requested by the inter-american commission on human rights §29. 3 the european commission of human rights was the competent body to receive complaints and decide on their admissibility and refer them, if necessary, to the european court of human rights, until 1998 when protocol 11 of the european convention on human rights came into force. human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 4 the common good, accept obligations, not in relation to other states, but towards the individuals under their jurisdiction. the special character of these treaties has been recognised, among others, by the european commission of human rights when it stated: ‘the obligations assumed by the high contracting parties to the (european) convention are essentially of an objective character, designed to protect the fundamental rights of human beings from violations by the high contracting parties rather than to create subjective and reciprocal rights between the high contracting parties’ (‘austria v. italy’, application no. 788/60, european yearbook of human rights, (1961), vol. 4, p. 140). the european commission, basing itself on the preamble of the european convention, further emphasises that ‘the purpose of the high contracting parties in adopting the convention was not to grant each other rights and obligations to satisfy their national interests, but to realise the aims and ideals of the council of europe... and to establish a common public order of the free democracies of europe with the aim of safeguarding their common heritage of political traditions, ideas, and the rule of law’ (ibid., p. 138). one of the most important sources for addressing the theory and practice of human rights obligations comes from the reflections and analyses carried out by the human rights treaty committees that monitor treaty compliance. by examining the work made by each committee once the treaty or the protocol regulating their operation has been ratified, we can also observe the institutional and protective evolution to which i referred at the beginning. it is important to understand the doctrinal evolution of the human rights committee through its general comment (hereinafter gc) no. 3 of 1981 and gc no. 31 (2004) on the nature of obligations and which is completed with gc no. 28 on the implementation of the optional protocol. this development also owes much to the international covenant on economic, social and cultural rights (hereinafter icescr) committee’s gc no. 3 (1990) which laid the foundations in 1990 for overcoming an overly simplistic view of state actions for protecting human rights (such as linking each right to a single obligation primarily identified with state actions of respect or abstention). thus, the combination of these ideas is perfectly expressed by the committee on the rights of the child in its gc no. 5 on ‘general measures of implementation of the convention on the rights of the child (articles 4, 42 and 44, paragraph 6)’ of 27 november 2003. general recommendation no. 28 on article 2 of the convention on the elimination of all forms of discrimination against women of 16 december 2010 by the cedaw committee is also important. the analyses made by these committees through their general comments are included in the conclusions of the examinations of the reports of each state, as well as in the examination of cases or communications (inter-state and individual) that the committees make and on which they pronounce through recommendations for individual complainants and for states (since these constitute criteria for challenging the actions of the obligated subjects). maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 5 the doctrinal treatment of human rights obligations, the analysis and decisions adopted by the committees, as well as the judgments of the international human rights courts, provide sufficient elements to describe the features of the obligations to which i will refer. however, i will approach the subject fundamentally from the doctrinal contribution and that of the committees. 2.1. the objective nature of obligations the human rights normative framework has produced norms with a general character and a universal mission. human rights obligations are objective. as mègret (2010, 100) points out, this objective character is related to the final purpose of the treaties, which is to protect the fundamental rights of people. mègret underlines the idea that the fulfilment of this purpose is not strictly dependent on the commitments of the parties to the subjective dimension. hence, adherence to human rights treaties is best understood if we think of states as making a solemn promise that constitutes an almost unilateral declaration to the international community and individuals within their jurisdictions, as the european commission of human rights confirmed. mégret (2010) rightly warns that it can only superficially be argued that the basis of human rights obligations lies in the consent or agreement of states. 2.2. obligations independent of the principle of reciprocity the classical conception of obligations in international law identifies their origin in a relationship of reciprocity in which two or more states are mutually obliged. this conception is expressed by kelsen (1943, 53) as he affirms that most obligations in international law are established through the consent of each state to adhere (or not) to an obligation. the evolution we have been discussing shows that human rights obligations do not require the principle of reciprocity by other subjects (states) bound by the norms. their purpose is not to establish reciprocal rights and obligations between states parties, but to establish a system that protects the rights of individuals. a fundamental quality of human rights obligations is that they do not form part of the type of reciprocal obligations arising from a model based on the institution of contract. as cardona (2016, 140) emphasises, the criterion for identifying this type of obligation is mainly formal, rather than dependent on regulating a certain matter – however relevant it may be – precisely because it is conceptualised outside the regime of reciprocity. the non-reciprocity feature is fundamental in, at least, two relevant matters: firstly, in the interpretation of human rights treaties; and secondly, in the derogation of obligations (as we will see in the following section). in relation to the first aspect, we start from the idea that human rights treaties are not intended to establish reciprocal rights and obligations between the states parties, but to establish a system to protect human dignity. therefore the object and purpose of human human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 6 rights treaties and conventions is the protection of the rights of individuals. article 31 of the vienna convention on the law of treaties states that: ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose’. subparagraph 2 furthers explains what should be be understood by the context of a treaty: (a) the text of the treaty, including the preamble and annexes; (b) any agreement relating to the treaty that has been agreed by the parties; and (c) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties. by virtue of this provision, medina (2005, 219-220) considers that the rule in article 31 underlines the idea that treaty interpretation must systematically integrate all criteria without any hierarchy between them. the interpretation must consider good faith, the ordinary meaning of the terms, the context of the treaty, and the object and purpose of the treaty. human rights treaties, unlike other treaties, recognise that individuals have rights with respect to the state and that states have obligations towards individuals. ‘therefore, in interpreting treaties in accordance with their object and purpose, one must be oriented towards the protection of human rights’. hence, the basic interpretative principle will always be in favour of the individual. such an interpretation is thus an important feature of the interpretation of human rights norms and a constant guiding principle. 2.3. collectively guaranteed obligations human rights treaties recognise rights for individuals (which must be protected) and obligations for states and other subjects (which must be supervised) with validity in both the international and national order (medina 2005). these are obligations of states towards the international community which, by virtue of their nature, concern all those who are bound by them and are therefore objective legal situations with universal effectiveness that either create or extinguish international obligations. the obligations establish a ‘ought to be’ for states and other obligated parties in general. the human rights committee in its gc no. 31 notes that, although article 2 of the iccpr ‘is couched in terms of the obligations of state parties towards individuals as the right-holders under the covenant, every state party has a legal interest in the performance by every other state party of its obligations’. this expresses the idea of a collective guarantee or collective interest in the protection of rights as: ‘rules concerning the basic rights of the human person and as obligations to everyone as indicated in the fourth preambular paragraph of the covenant… and there is a united nations charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms’ (gc no. 31). the regulated legal interest – human dignity – is a collective interest and the protection of rights is the responsibility of the whole international community (cardona 2016, 142) and this community has a legal interest in reacting to serious violations. it is in the common interest of the international community to maintain and protect this global public order. this idea is at the origin of the universal human rights system, which underlines the importance of the aims and objectives of establishing a social and international maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 7 order in which the proclaimed rights and freedoms are made full and effective (art. 28 universal declaration of human rights), or the preamble of the iccpr, which imposes the obligation to promote universal respect for and observance of rights and freedoms. therefore, all treaties recognise the inter-state communications procedure that enables states to initiate actions to safeguard rights and can so be seen as a manifestation of a legitimate interest of the community. rights have a collective guarantee that can be extended and justified in several directions. one of these directions is within the state. as the committee notes, each state is bound in its entirety and this includes all branches of the state (legislative, executive, and judicial) and at all levels (state, regional, local). this should not be taken for granted, because not all branches of government in a state governed by the rule of law are always fully aware of human rights and consider themselves to be bound by their application in the internal order (hrc, gc 31). this also concerns bodies and institutions that have responsibilities for the protection and realisation of rights with different competences (meaning the multiple levels of law: vertical, horizontal, local, national, and transnational). the legitimacy of such institutions can be analysed by considering the degree to which human rights are part of that institution and the extent to which each contributes or not to articulating recursive relations on the legitimacy of others (iglesias 2016). it is therefore pertinent to ask what type of relationship and distribution of functions contributes to reinforcing and enhancing the legitimacy of each institution involved in human rights obligations. 2.4. obligations arising from mandatory rules the human rights committee in gc nº 31 warns that ‘rules concerning the basic rights of humans are obligations towards everyone’ and this means that these norms bind each state to the international community in the defence and protection of essential collective interests (binding on all states). the collective guarantee is linked to this characteristic and these obligations are also formulated through peremptory norms. alarm bells in relation to the principle of jus cogens often ring when this characteristic is pointed out. general international law is based on international custom that requires the consent of states and allows for change through treaties and general principles of law. it is reasonable to consider the importance for international law of jus cogens rules, meaning those that are legally binding and cannot be derogated in accordance with article 53 of the vienna convention on the law of treaties. therefore, attempts to determine which norms would be today identified as jus cogens norms are understandable.4 however, it can be argued that what in general international law is an exception, the peremptory and non-dispositive character of norms, is the general rule in the case of human rights obligations. in other words, while jus cogens indicates the legal status of 4 the report of the international law commission on ‘fragmentation of international law’ declined to list these norms extensively. human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 8 a norm, erga omnes obligations show us the consequences of that status (zelada 2002, 143). nevertheless, the reasons that have been offered to support the peremptory character of various norms of general international law can be largely applied to human rights obligations. the norms that establish human rights obligations are peremptory because they establish conducts, objectives, or results through deontic imperative modalities. norms can be analytically reconstructed as a statement that links an antecedent, factual assumption, or relevant property with a legal consequence through a deontic or ought-to-be nexus that can have a triple modality (obligatory, prohibited, or permitted). norms establish that an obligated subject must perform or not perform an action, achieve an objective, or attain a result. imperative legal norms fulfil a function that can be considered constitutive in legal systems because without imperative norms there is no normative order (guastini 2016, 67). similarly, obligations and prohibitions are conceptualised as guarantees of rights. this perspective, as developed by ferrajoli (1999, 59-60), has the potential to provide the basis for distinguishing between the recognition of human rights in terms of positive (performance) and negative (non-injury) expectations attributed to a subject by a normative order – and the corresponding duties that are guarantees are also established by legal norms. in turn, ferrajoli distinguishes between primary guarantees (obligations and prohibitions relating to the subjective right), and secondary guarantees (constituted by the institutionalisation of bodies required to sanction or invalidate violations of primary guarantees). this is what defines for ferrajoli (1999, 63) the ‘nomodynamic’ structure of modern law as it imposes a distinction between rights and their guarantees by virtue of the recognition of positively existing norms. human rights in the international order represent a normative order that moves from the recognition of rights to the development and determination of guarantees (that is, a system of human rights protection). the dispositive character of a legal norm consists of being able to legally escape their binding nature (miaja de la muela 1960). but if we consider that norms are formed by the international community and not by the individual will of states who can ‘choose’ the norms to which they are bound, then norms are not dispositive for member states of the international community in the field of human rights. 2.5. obligations towards people – beneficiaries of obligations we start from the legal obligation to implement – in good faith – the provisions laid down in international covenants and conventions. this is an obligation towards rightsholders and is key to the demand for state responsibility. this characteristic underlines the importance and leading role of the individual as a subject of rights in the system of rights protection. according to cançado (2005, 160) ‘the consolidation of the legal personality and capacity of the individual as subject of international law constitutes the most precious legacy of the international legal thinking of the second half of the 20th century, projecting itself into this beginning of the 21st century’. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 9 the perspective of obligations, and not only that of rights, has brought about a change in the position of the individual within the protection system and given the individual a central place in the protection system (bea 2013, 69). human rights treaties recognise the rights of individuals and thus took a huge leap forward, since according to classical international law they are not subjects of international law. as craven (2000, 489, 493) writes, human rights-holders are not simply incidental beneficiaries of a regime that concerns the promotion of the rights and interests of states. ‘the whole new corpus juris of the international law of human rights has been constructed on the imperatives of protection and the superior interests of the human being, irrespectively of his link of nationality or of his political statute, or any other situation or circumstance. hence the importance assumed, in this new law of protection, by the legal personality of the individual, as subject of both domestic and international law’ cançado (2005,182). states have obligations towards persons under their jurisdiction, and not only towards those who are citizens of the state. this reaffirms the idea of the universality of human rights and the prohibition of discrimination (hrc, gc 31 §10). ‘states parties are required by article 2, paragraph 1, to respect and to ensure the covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction… the enjoyment of covenant rights is not limited to citizens of states parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the state party’. moreover, the leading role of the subject has been reinforced through various processes linked to the protection of rights. this has been assisted firstly by the identification and establishment of obligations to respect, protect, and fulfil human rights, as well as to avoid discrimination; and secondly, by the generalisation of the individual complaint mechanism, which protects the rights of individuals and enables them to file complaints against the state for violations of their rights. this mechanism is expressly accepted by states through the signing and ratification of protocols. therefore, it seems unreasonable to conclude that the obligations that arise are merely dispositive. as cançado affirms: ‘this is a logical development, as it does not seem reasonable to conceive rights at international level without the corresponding procedural capacity to vindicate them; the individuals are effectively the true complainant party in the international litigation of human rights’, (2005, 203). the growing importance of the role of civil society organisations must also be emphasised. their participation can be framed in multiple interventions: the production of reports that parallel the ones issued by states; their participation in amicus curiae, and the work of human rights defenders do in preparatory work for new norms ‘is symptomatic of the democratisation of international relations, parallel to a growing conscientisation of the multiple subjects of law acting in the contemporary international scenario in favour of universal values. considering the presence in the contemporary international legal order not only of states and international organisations but also of individuals’ (cançado 2005, 177). human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 10 2.6. extension of accountability accountability in relation to the fulfilment and non-fulfilment of human rights obligations has undergone considerable changes. it is primarily a question of an extension of the responsibility of the state, but also extends towards other subjects. customary international law establishes that a breach of an international obligation constituting a wrongful act or omission by the state, generates the responsibility of the state and an obligation to make reparation for any material or moral damage caused by the act. we cannot ignore the fact that this is a complex issue, but the principle of accountability has its own profile in the system of human rights protection at different levels,5 and i limit myself to highlighting the following: (a) human rights obligations are binding on all branches of government (legislative, judicial, and executive) and at all levels (state, regional, and local), and therefore, any agent or authority of the state can incur international responsibility for both action and omission. the human rights committee in its gc 31 states that: ‘there may be circumstances in which a failure to ensure covenant rights as required by article 2 would give rise to violations by states parties of those rights because of states parties permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate, or redress the harm caused by such acts by private persons or entities. states are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. the covenant itself envisages in some articles certain areas where there are positive obligations on states parties to address the activities of private persons or entities’ (§ 8). (b) the state is also responsible for acts committed by private parties that violate human rights if the state has failed to anticipate the risk of violation by making investigations if necessary or making reparations and providing guarantees of non-repetition. (c) the un committee on economic, social and cultural rights (cescr) has established a concept of non-state subjects (nss) to refer to ‘individuals, groups, corporations and other entities, as well as agents acting under their authority’, who may have a role and responsibility in the realisation of social rights (chorny 2018, 28-29). for example, in relation to the right to work, cescr includes both private employers and international financial bodies such as the wb, the imf, and the wto (cescr, gc. 18, § 52). there are also efforts to establish human rights obligations for national and multinational corporations, such as the ‘guiding principles on business and human rights’. there are various pronouncements by international tribunals regarding the responsibility of international financial organisations regarding the effects of austerity policies on human rights, especially between 2010 and 2019, which must be considered. 5 in this regard, the judgment of the inter-american court in the velásques rodriguez case (29 july 1988) is a reference on strict state responsibility for gross human rights violations. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 11 (d) another area of responsibility arises from the legal obligation to respect, protect, and guarantee rights through cooperation. consequently, state responsibility is both direct and indirect. in both cases, there are standards such as due diligence. this principle is breached in those cases, for example, in which an act that violates a right is perpetrated in the absence of any prevention or with impunity; the violation is not investigated; the perpetrator is not prosecuted; the injured party is not compensated; or there are no guarantees of non-repetition. states cannot point to the provisions of their constitutional law or other elements of national law to justify non-compliance or non-application of the obligations undertaken. to conclude this section, i would like to highlight some of the advantages that the obligations perspective offers in proposing a more comprehensive view of the functions of human rights (añón: 2018).obligations express value and respect for human beings. ‘the expansion of international legal personality, nowadays encompassing that of individuals as active and passive subjects of international law, goes pari passu with the acknowledgment of accountability in international law. this contributes ultimately to the international rule of law, to the realisation of justice also at international level, thus fulfilling a long-standing aspiration of humankind’ (cançado). it widens the concerns of the global agenda beyond intergovernmental relations and enables a more focused approach to the legitimacy of the obligated subjects and their interactions in influencing the international order. it examines each obligated institution in terms of its (reciprocal) legitimacy, for example between international courts and states, between rights committees and obligated parties; and analyses in what sense the role of the former contributes to strengthening internal rights and vice versa. the human rights protection system includes institutional control of the obligations in the united nations through the treaty committees. this is not a subject i can deal with here, but i would like to underline three aspects. firstly, the legitimacy of the committees and the importance of their existence in relation to the system of rights protection. secondly, the committees determine the content of the obligations relating to the rights established in each treaty mainly through general comments or recommendations. thirdly, the committees monitor compliance with the obligations through two channels or procedures: the final observations of the reports presented by the states, and the resolution of interstate and individual complaints or communications. escobar (2021: 138) redefines these two channels in legal terms as objective and subjective guarantees of rights. 3. maintenance obligations in times of crisis 3.1. derogation and limitation of rights from a legal point of view and within the normative framework of human rights, times of crisis can be analysed as situations or states of emergency that can be responded to with measures that include derogating or limiting rights and obligations. it is characteristic of human rights obligations, as i have been arguing, that a violation of human rights by one state does not justify the disappearance of obligations by human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 12 other states. general international law is guided in this regard by the provisions of article 60.1 and 2 of the vienna convention, which authorise the termination or derogation of the application of a bilateral or multilateral treaty, in whole or in part, if a serious breach by one of the parties entitles the other party to invoke the breach as grounds for terminating the treaty or derogating its application in whole or in part. in the field of human rights, however, a different approach is taken. human rights treaties recognise the possibility of establishing in ‘normal situations’ justified limitations on rights and allow states to deviate from some of their obligations during a crisis. this is recognised in article 4 of the iccpr, article 15 of the european convention on human rights, and article 27 of the inter-american convention on human rights. we also have an authoritative interpretation of article 4 of the iccpr from the human rights committee in its gc 29 on states of emergency and gc 31. the former on states of emergency (2005) replaced gc 5 (1981) and responded to the un’s concern regarding anti-terrorist policies and the states of emergency declared for this reason. article 4 1. in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. no derogation from articles 6, 7, 8 (paragraphs i and 2), 11, 15, 16 and 18 may be made under this provision. 3. any state party to the present covenant availing itself of the right of derogation shall immediately inform the other states parties to the present covenant, through the intermediary of the secretary-general of the united nations, of the provisions from which it has derogated and of the reasons by which it was actuated. a further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.6 from this article 4 and the interpretation given by the human rights committee in gc 29 we can extract the basic requirements in the case of a derogation of obligations: (a) the first obligation is to formally declare an emergency or serious situation and state the reasons. as a guarantee of this declaration, it must be established through legislation in both a formal and material sense and provide sufficient and accurate 6 the spanish translation of the covenant speaks of ‘suspensión’ of rights, as does the inter-american convention on human rights, while the english text refers to a derogation. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 13 information on the state’s legislation and practice regarding emergency powers (§2). as medina (2005, 257) indicates, the state has the power to regulate internationally ratified rights in the national order, but cannot derogate or limit rights, since international law obliges compliance with certain conditions, the absence of which renders the limitation illegitimate. (b) obligation to notify the other states parties to the treaty of the content of the declaration. notification must be accompanied by other safeguards including detailing the measures taken; explaining the reasons for taking the measures; and providing full documentation of the legal provisions (§§ 2 y 17). (c) the cause or reasons. it must be an exceptional situation that ‘endangers the life of the nation’. the siracusa principles interpret a threat to the life of the nation when: (a) a situation affects the whole population and all or part of the territory of the state; and (b) it threatens the physical integrity of the population, political independence, or the territorial integrity of the state or the existence or the basic functioning of institutions indispensable for securing and protecting the rights recognised in the covenant. accordingly, internal conflict, unrest that does not pose a grave and imminent threat to the life of the nation, or economic difficulties, cannot by themselves justify derogations under article 4. (d) recognition of certain rights and obligations that cannot be derogated. gc 29 refers to this in paragraph 11 by listing the rights that cannot be suspended from articles 6, 7, 8 (paragraphs i and 2), 11, 15, 16 and 18. in addition, the gc recognises that derogable rights have non-derogable dimensions and the text also sets other limits to derogability (paragraph 13). much space is given to procedural guarantees which in their minimum content (access to courts, fair trial, presumption of innocence, and effective remedy) remains in force as an inherent obligation of the covenant (§§14 and 15). in relation to the iccpr, derogation clauses have been declared in this pandemic relating to freedom of movement, assembly and association (articles 12, 21, 22), liberty in general, fair trial (articles 9 and 14) and the right to privacy (article 17). state parties cannot invoke article 4 of the covenant as a justification for acts that violate humanitarian law or peremptory norms of international law, for example, the taking of hostages, the imposition of collective punishment, arbitrary deprivation of liberty, or disregard for fundamental principles of fair trial, and in particular, the presumption of innocence (§11). (e) prohibition of discrimination (paragraph 8) derogation from obligations and rights is only justified in public emergencies that threaten the life of the nation and the existence of which is officially proclaimed, the states parties to the present covenant may take measures derogating their obligations under the present covenant to the extent strictly required by the demands of the situation, providing that such measures are not inconsistent with their other obligations under international law human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 14 and do not involve discrimination on the grounds of race, colour, sex, language, religion, or social origin, as well as discrimination unjustifiably affecting some groups and not others. non-nationals are not recognised, but gc 31 does recognise these groups. (d) proportionality of the measures. the principle proposed is that all exceptions require a more demanding test of proportionality than is accepted as a limitation in normal times because there are risks of violating the essential content of all these rights. however, the gc points out that in the case of freedoms the parameters of rationality are applied to the limitations, and the proportionality criterion that is applied is the same for limitations of rights and derogations. this constitutes an argument for the relativity of the difference between the two legal categories. in summary, gc 29 offers a series of principles that can be expressed in various ways but which prohibit affecting non-derogable obligations in accordance with other international norms, as well as the prohibition of discrimination, limitations that guarantee the principle of legality and the rule of law as necessary in a democratic society (a criterion on which the european court of human rights has expanded),7 the requirement for proportionality of measures linked to respect for the essential content of rights, and judicial (internal) as well as treaty body (external) control of limitations. we can now connect these precedents with the current pandemic crisis. the gc lists international law obligations that always remain in force and refers to other documents such as the siracusa principles on the limitation and derogation of the international covenant on economic, social, and cultural rights (un economic and social council 24 august 1984). i noted initially that the state's response to certain situations may be to derogate rights and obligations or to limit them. however, the distinction is not so clear-cut. the gc states that derogation is clearly distinct from limitations of human rights but does not indicate differences between these concepts. the concept of ‘derogation’ as escobar (2021: 137, 146) argues is not a distinct and clearly distinguishable legal concept from that of limitation of rights. this is an issue that has arisen in the context of the covid-19 pandemic and declarations of states of emergency or similar. 7 the expression ‘necessary in a democratic society’ has been broadly interpreted by the european court of human rights 132 (van dijk and van hoof 2018, 307-335) and a similar interpretation has been given by the inter-american court of human rights, which, in its advisory opinion 5/85, drew a parallel with european jurisprudence and incorporated it into the system. the inter-american court held that in the inter-american system the limitation: (i) must respond to the ‘existence of a compelling social need’, that is, it must be oriented ‘to satisfy an imperative public interest’; (ii) among several options to achieve this objective ‘the one that restricts on the smallest scale the protected right must be chosen’; and (iii) the limitation must be ‘proportionate to the interest that justifies it and closely adjusted to the achievement of that legitimate objective’ 133. in summary, the court evaluates measures through the lens of proportionality. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 15 the gc does not indicate differences between derogation and limitation – but states that the principle of proportionality applies to both. in paragraph 4: ‘derogation from some covenant obligations in emergency situations is clearly distinct from limitations allowed even in normal times under several provisions of the covenant. nevertheless, the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers. moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. in practice, this will ensure that no provision of the covenant, however validly derogated, will be entirely inapplicable to the behaviour of a state party’. it does not seem reasonable to interpret the derogation of rights as a suppression of those rights, which would constitute, as rubio states (2020), an infringement with or without a state of emergency. nor can it mean that rights are ‘deconstitutionalised’ and escobar points out that the derogation of a right would be equivalent to a limitation, as the same model of control of the latter is defended, namely: legal provision; essential content; limits; and the principle of proportionality (2021). with the outbreak of covid-19, the human rights committee drafted a statement on derogations from the covenant in connection with the covid-19 pandemic, ccpr/c/128/2, 30 april 2020. as escobar (2021: 140) discusses, this statement basically repeats the doctrine established in gc 29, although emphasising some more novel aspects. the general rule is that public health problems must be addressed with instruments that are appropriate for normal situations, and therefore although rights may be limited, derogation measures should be resorted to only when this is not possible. the aim of the measures is a return to normality. moreover, as escobar warns in support of his thesis, there is no significant difference between a derogation and a limitation of rights, and the above declaration states in paragraph c: ‘states parties should not derogate from covenant rights or rely on a derogation made when they are able to attain their public health or other public policy objectives by invoking the possibility to limit certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(right to peaceful assembly), in conformity with the provisions for such limitations set out in the covenant, or by invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions’. both at international and national levels, there have been interesting debates on the derogation or limitation of rights following a declaration of a state of emergency. regarding the application of the derogation clause in article 4 of the iccpr, scheinin, who was un special rapporteur (2005-2011) and for eight years a member of the un human rights committee and participated in the drafting of the committee’s gc 29 on states of emergency in 2001, made several observations. in his opinion (2020) after the events of 9/11, this document proved useful to maintain control over anti-terrorist measures that violated human rights. in his view and considering the risk of abuse human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 16 (such as curtailing dissent, dissolving parliament, postponing elections, consolidating the powers of would-be dictators, and consolidating powers of the executive over the legislature) affecting the right to due process or invasion of privacy by unlimited control, the safest course of action is to insist on the principle of normality: namely, managing a crisis with normal powers and procedures and insisting on full compliance with human rights.8 therefore, rather than declaring states of emergency as a response to the pandemic, he proposes insisting on the principle of normality. this can be achieved by establishing the necessary and proportionate limits on human rights because of a pressing social need created by the pandemic. green (2020) advocates the application of article 4 of the iccpr and considers that the derogative clause provides guarantees. the declaration of a state of emergency, the derogation of certain specific obligations, and the requirement for international notification seems to him to be adequate for the situation. medina also values the notification as further proof of the global public order to which we have referred. another guarantee is the power of the international supervisory bodies to control whether a declaration of emergency and the specific measures taken on its basis do not infringe the treaty. conversely, green argues, it is the failure to make use of this option that may risk normalising exceptional powers and permanently recalibrating human rights protections downwards. if the exigencies of the pandemic require exceptional measures and the diversion of some dimensions of the full enjoyment of all human rights, then the most consistent approach is to introduce those measures through a framework that implies a commitment to legality and the full restoration of normality as soon as possible. notification can be seen as further evidence of the existence of a global public order that gives states parties the right to react to the conduct of any state that compromises the stability of the system (medina 2005, 269-270). international supervisory bodies also have the power to control whether the declaration of emergency and the measures taken on its basis do not violate the treaty. escobar (2021, 150) argues that we have sufficient elements to indicate that the difference between limitation (limitation or affectation) of rights and derogation is subtle. derogation may mean a ‘more intense limitation’. in support of this thesis, he puts forward the following arguments. (a) the distinction regarding the grounds for derogation (serious threat to the life of the nation) and limitation (public order, national security, public health, etc.) may seem clear – but there is no substantial difference in practice. 8 nearly 20 states parties to the three treaties mentioned above have resorted to derogation during the current covid-19 epidemic by officially declaring it a life-threatening state of emergency, and so notifying the united nations, the organisation of american states, or the council of europe of the unilateral abrogation of some of their obligations under the three treaties. as of 2 april 2020, these included eight countries abrogating the echr (albania, armenia, estonia, georgia, latvia, latvia, moldova, north macedonia, and romania), three of them notably eu member states, as well as ten latin american countries (argentina, bolivia, chile, colombia, ecuador, el salvador, guatemala, honduras, panama, and peru) abrogating the achr. a subset of six of these states have also notified the un of derogations from the iccpr (armenia, ecuador, estonia, guatemala, latvia, and romania). the sheer volume of covid-19 derogations – almost one in ten nations worldwide – is unprecedented. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 17 firstly, because it must be proven; and secondly, because the arguments ultimately come back to national security, public order, and public health. (b) in the case of derogation, the rights affected are specific, whereas limitation can affect all rights. escobar argues that this difference is irrelevant because respect for the essential content must always be maintained despite derogation (añon 2016, 66-74). moreover, as we have seen in the case of freedoms, the reasoning associated with limitation is also applied. finally, (c) there is no great difference between declaring a derogation or not. in conclusion, the derogative clause constitutes, for escobar (2021, 150), a generic authorisation to limit rights that is outside the usual forms and procedures – and therefore fulfils an important function of reinforcing guarantees, for example, regarding executive power in exceptional situations. in agreement, scheinin explains that the scope of legitimate additional measures affecting human rights is rather limited. countries that have abused emergency powers to seize power have not applied the derogation clause because they do not wish to be limited by the framework of official derogation. alan greene is therefore correct in stating that international notification of an emergency can reflect a country’s commitment to legality and normality. this is a debate that has also taken place nationally given that the type of ‘limitations’ that were put in place during the pandemic necessitated the declaration of some type of state of emergency, although the justifying argument is based on an emergency that is endangering the health of entire nations and is therefore a justification for the limitation of rights. 3.2. prohibition of regressivity civil rights and social rights share obligations clearly set out in article 2 of the iccpr and article 2 of the icescr. these shared obligations partially account for the continuity of civil and social rights (this thesis is held by many – including courtis and abramovich, 2002).9 however, it must be acknowledged that the covenant on economic, social and cultural rights does not contain any derogative clause analogous to article 4 of the covenant on civil and political rights. 9 the committee on the rights of the child expresses the continuum between civil and political rights extremely well in its comment no. 5 on treaty obligations. paragraph 6 states: article 4, while reflecting the general obligation of states parties regarding implementation, draws in its second sentence a distinction between civil and political rights, and, on the other hand, economic, social, and cultural rights. ‘with respect to economic, social, and cultural rights, states parties shall undertake such measures to the maximum extent of their available resources, and where needed, within the framework of international cooperation’. there is no simple or credible division of human rights in general, or of the rights recognised by the convention in particular, into these two categories of rights. the committee’s reporting guidelines group articles 7, 8, 13-17 and 37(a) under ‘civil rights and freedoms’, but the context indicates that these are not the only civil and political rights recognised in the convention. indeed, many other articles, including articles 2, 3, 6 and 12 of the convention, contain elements that constitute civil or political rights, reflecting the interdependence and indivisibility of all human rights. the enjoyment of economic, social, and cultural rights is inextricably linked to the enjoyment of civil and political rights. as noted in paragraph 25 below, the committee believes that the justiciability of economic, social, and cultural rights, as well as civil and political rights, must be recognised. human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 18 the obligations common to all rights include the obligation to take immediate measures, as well as the obligations to respect, protect, guarantee, and recognise rights while establishing primary and secondary guarantees. these include comprehensive obligations: non-discrimination, and respect for the minimum of human rights (añon 2018). article 2 of the icescr establishes the obligation of progressivity within the limit of available resources, and states that essential levels of rights must be maintained during a crisis or recession and that vulnerable groups must always have their rights guaranteed. is this an obligation that only affects social rights? not at all, the pandemic highlighted something that the special rapporteur on severe poverty had already denounced in his 2017 report on poverty and civil rights. but it is true that one of the basic guarantees for the full effectiveness of social rights is the obligation of progressivity – whereby a right is achieved within a reasonable period and then gradually enhanced. this means the prohibition of regression. it is important to focus on obligations and their maintenance and even reinforcement in times of crisis, such as armed conflicts, natural disasters, socio-economic crises, or a global pandemic. it is also important to assess the impact of the rules for dealing with covid-19 on the basis of human rights obligations and evaluate whether we are facing violations regarding, for example, the right to an adequate standard of living, food, housing in its various dimensions, and healthcare. during the 2007 economic crisis and the subsequent decade of social crisis, no nation declared a state of emergency and civil rights were not formally derogated. however, regressive measures on social and civil rights were adopted as a direct result of the adoption of austerity. the effects of austerity policies on human rights in the universal human rights protection system10 and regional human rights protection systems have been studied by many international and academic organisations (ginsborg 2017). jurisprudence from the european court of human rights and the european committee of social rights examines, although not always clearly, the degree of state autonomy in the context of austerity and the degree of responsibility for human rights violations resulting from these measures that can be directly attributed to those organisations that advocated austerity. these developments are analysed in the light of international human rights law, as well as international institutional law.11 the implementation of these measures had a global impact and a significant weakening of public protection systems. the special rapporteur on severe poverty, when 10 for example, ortiz et al. 2015, cers 2018. 11 austerity measures have damaged a range of human rights, both directly and indirectly, through negative economic impacts. they have undermined rights to education, food, health, and housing, and rights to decent work, fair wages, and social security; as well as freedom of expression and rights to life and personal security. austerity has exacerbated disparities such as income, gender, race, age, disability, and migration status. the social and economic effects of austerity are combined with deepening political inequalities. the lack of voice and political power of the most disadvantaged in society contributes to their invisibility in the eyes of policymakers charged with designing adjustments. unsurprisingly, the disproportionate costs they bear are often hidden. fra 2013, oit 2017, cers 2018. maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 19 analysing the impact of measures introduced after the covid-19 pandemic was declared, described it as ‘the worst economic crisis since the great depression’.12 this is a crisis that cannot be understood in isolation from the previous crisis and in which it has its roots. ten years on, the rapporteur notes, the legacy of the previous crisis is marked by ‘entrenched inequalities, intractable poverty and public services in a sad state of disrepair’ (§51). the impact of austerity on public services – now considered essential – has persisted and this has consequences for human rights around the world (§52). as a result, the state of socioeconomic rights that was already in dire straits when the pandemic broke out has led to a deterioration in public health systems (§53). care work has been undervalued and made precarious although much of it is carried out by newly termed ‘essential workers’ (§55). social services around the world are severely underfunded and overburdened by demands that must be processed very quickly and where outsourcing can be seen as an abdication of governmental responsibility (§56). extreme inequality is coupled with great wealth, excessive profits (§57), a worldwide reduction of corporate tax rates (§58), increased working hours, and a pauperisation of employment or increased precariousness. the period from 2008 to 2019 was of great concern to the united nations. the 2017 report by the independent expert pablo bohoslavsky diagnosed the crisis and showed how the austerity measures adopted had negative impacts on human rights, and the extent to which states have failed to meet their obligations. this report is at the origin of a statement of guiding principles for assessing these policies and identifying and systematising existing human rights obligations and setting principles on how to assess the consequences of anticrisis measures on human rights.13 in the ‘guiding principles on human rights impact assessments of economic reforms’ the un general assembly urges states to either act on their own or as members of international financial institutions and adopt economic policies that ensure that human rights are respected, protected, and fulfilled (principle 2, un general assembly, 2018). principle 3 on the burden of proof states that this implies a duty to make human rights impact assessments address the human rights impacts of their economic policies. these assessments should be made before and after and should also, among other issues, ‘demonstrate how the proposed measures, together with other economic measures and policies being implemented or to be implemented, could affect the human rights of the population, and especially the most marginalised or at-risk individuals and groups’ (principle 17). we assume that the obligation of progressivity and the prohibition of retrogression are guarantees of rights. accordingly, it is a matter of ‘identifying any prima facie retrogressive measures, as well as alternative economic policy options that may be the least restrictive to human rights and avoid any proscribed retrogression’. thus, states 12 the special rapporteur on extreme poverty and human rights: looking back to look ahead: a rightsbased approach to social protection in the post-covid-19 economic recovery, 11 september 2020. 13 general assembly: guiding principles on human rights impact assessments. report of the independent expert on the effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social, and cultural rights. a/hrc/40/57, 19 december 2018. human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 20 legitimately enjoy a margin of discretion in the design of their own policies (for example, fiscal policies). however, this discretion is limited. the icescr recognises the possibility of ‘limitations on rights that are determined by law to the extent that they are compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’ (art. 4) as part of national legislation that is generally applicable, clear, and accessible to all. when a measure that limits rights is adopted, there is a presumption of noncompliance by icescr (committee on esc rights, gc no. 3). according to the committee on economic, social and cultural rights (cescr committee) the state must justify the adoption of the measure based on a series of elements. treaty committees, other treaty bodies, regional human rights bodies, and national courts have developed various criteria for making assessments on the basis on which retrogressive measures might be legally justified. for its part, the committee on economic, social and cultural rights (cescr) has developed a set of principles for assessing retrogressive measures which, in part, stems from an examination of the parameters of justification of limitations of rights. the committee’s reasoning is based on the rationality and proportionality that national courts follow in a mostly standardised way in the national legal systems. this process culminated in the gc on social security, which embodied these criteria. this set of criteria and guidelines is reflected in a document on the guiding principles on human rights impact assessments, which devotes principle 10 to the prohibition of retrogression. the document states that any economic reform proposal that leads to a regression in the realisation of economic, social, and cultural rights is considered a violation of those rights. thus, measures that would lead to retrogression in the realisation of these rights are permissible only if states can demonstrate that such retrogressive measures are: a) temporary in nature and effect – and limited to the duration of the crisis; b) legitimate and intended to protect all human rights. according to article 4 of the icescr, limitations on rights shall be solely for promoting the general welfare in a democratic society. furthermore, according to the cescr, the measure must be duly justified by reference to all the rights in the covenant; c) reasonable in that the means chosen are the most appropriate for achieving the legitimate aim. the cescr has defined criteria that it considers in determining the reasonableness of measures adopted by a state. the measures must be ‘deliberate, specific, and aimed at the fulfilment of economic, social and cultural rights’, as well as non-arbitrary, non-discriminatory, and must consider ‘the precarious situation of disadvantaged and marginalised individuals or groups’; d) necessary in that the adoption of any other policy alternative or inaction would be more detrimental to the enjoyment of economic, social, and cultural rights, especially if alternative and less harmful financing mechanisms are available. in the words of cescr maría josé añón the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 21 it means that ‘the adoption of any other policy alternative, or inaction, would be even more detrimental to the realisation of human rights’; e) proportionate in that the measures do not unduly limit human rights. the measures chosen must be within certain substantive and procedural limits; f) non-discriminatory and able to prevent or mitigate inequalities that may arise during a crisis, as well as ensuring that the rights of disadvantaged and marginalised individuals and groups are not disproportionately affected. human rights impact assessments of economic reforms must consider the direct and indirect discriminatory impact of economic reform policies on the most disadvantaged (principle 7). g) protect the minimum content of economic, social, and cultural rights. this recognition is fundamental as a guarantee of social rights and as an anchor of the reasoning applied to rollbacks and limits to rights (as already emphasised); h) require a high level of transparency as an evaluative and monitoring principle and the genuine participation of affected groups in the examination of proposed measures and alternatives; i) subject to meaningful review and accountability (including human rights impacts). among the criteria for assessing limiting measures, the principles that constitute proportionality in a broad sense are considered. the legitimate aim of the measure is examined in accordance with the object and purpose of the treaty, the need for the measure, its suitability or rationality, and its proportionality. the temporary and exceptional nature of the measure must also be assessed. the criteria of temporariness and exceptionality are linked to the principle of proportionality. taken together, they aim to ensure that a derogation of rights or a regression occurs to the extent and for the period that is strictly necessary. if the situation justifies such measures, writes medina (2016: 266), international standards imply that the measures must be proportional in time and form, and conducive to the objective of overcoming the emergency. this requirement applies both to a general measure limiting a right and to each of the measures that an authority adopts in application of the general measure. these limits point to two aspects: the way rights are affected and the persons who will be affected (medina 2005: 67). regarding the former, the measures must not be too extensive and should constitute the ideal and only means to re-establish normality. regarding the persons affected, the authority must limit itself to derogating the rights of those who are directly involved in the emergency, without affecting the rights of others who are not affected. the temporary and limited nature of the measures has not been questioned so far, given that it is a response to a crisis or state of emergency. however, in the situation generated by the pandemic we have seen that the measures must address structural situations arising from a decade of weakening social protection systems. these temporary and exceptional measures address dimensions of the law that the pandemic has put at greater risk and human rights obligations, especially, in times of crisis the age of human rights journal, 17 (december2021) pp. 1-26 issn: 2340-9592 doi: 10.17561/tahrj.v17.6406 22 that need to be reinforced by structural measures. as the special rapporteur on severe poverty (2020, §75) argues: ‘the world was ill-prepared to cope with this pandemic, but it need not have been. building social protection systems based on human rights can contribute significantly to effectiveness in eradicating poverty and reducing inequalities and will make societies more resilient to crises. this means defining social protection not as an emergency response to a crisis, nor as charity’. when evaluating measures, we must consider their limits, which are marked by criteria such as compatibility with other obligations. most significantly, the prohibition of discrimination plays a key role when assessing the effects of pandemic measures. we must also consider criteria relating to the process of adopting measures: the principle of legality, as well as guarantees of participation and accountability. it is now a general principle that the implementation of human rights treaties requires each state party to be accountable to its citizens and other members of the community at national and international levels. for this accountability to work effectively, appropriate mechanisms and institutions must be established (cedaw, gr 28, §§39-40). 4. concluding notes human rights obligations understood as objective obligations that are derived from peremptory norms whose guarantor is the international community, have progressed in identifying human rights violations and adopting protective legal measures. therefore, they contribute to the ongoing construction of a universal system for the protection of rights. the elements explaining the evolution of these obligations reinforce their binding nature and the position of human beings as a subject of rights and a beneficiary of obligations as well as extending the responsibility of obliged subjects. these characteristics are especially relevant in times of universal crises such as the covid-19 pandemic. human rights obligations constitute a standard for examining the impact of the norms for dealing with the pandemic and deciding if human rights are being violated. although responses to the pandemic have been nationally driven, human rights obligations are safeguards for monitoring the derogation of such obligations. simultaneously, with progress in the identification of obligations, criteria have been set to evaluate regressive or rights-limiting measures. these criteria are applicable to measures that address the pandemic and constitute broad criteria for assessing measures from various approaches: (a) proportionality in a broad sense; (b) the effects of the measures, especially if they are discriminatory; (c) the limits of the measures; (d) the adoption process and its guarantees: participation, transparency, and accountability. human rights responses to this crisis cannot be based on emergency, temporary, or exceptional measures, but must be based on sustained, structural, and fundamental measures. the lesson to be learnt is that human rights obligations should not be 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(2014) «las obligaciones de los estados en el sistema universal de protección de los derechos humanos», anuario español de derecho internacional, vol. 30, pp. 303-346 rubio ruth, (2020): ‘españa y el convenio europeo de derechos humanos en tiempos de pandemia: posibilidades y límites’, eldiario.es https://www.eldiario.es/andalucia/ desdeelsur/espana-convenio-europeo-derechos-humanos_132_5956586.html. [accessed: 7 may 2020]. scheinin, martin (2020) ‘covid-19 symposium: to derogate or not to derogate?’ opinio iuris blog, 6 april 2020. http://opiniojuris.org/2020/04/06/covid-19symposium-to-derogate-or-not-to-derogate/. [accessed: 6 april 2020]. un general assembly (2018) ‘guiding principles on human rights impact assessments of economic reforms report of the independent expert on the effects of foreign debt and other related international financial obligations of states on the full enjoyment of human rights, particularly economic, social and cultural rights’ a/hrc/40/57, 19 december 2018 un special rapporteur on extreme poverty and human rights, (2020) ‘looking back to look ahead: a rights-based approach to social protection in the post-covid-19 economic recovery’, 11 september 2020 van dijk, pieter; van hoof, fried and van rijn, arjen (2018) theory and practice of the european convention on human rights, intersentia, 5th edition, pp. 307-335 zelada, carlos (2002) ‘ius cogens y derechos humanos: luces y sombras para una adecuada delimitación de conceptos’, agenda internacional, nº 17, 2002, pp. 129-156 received: june 7th 2021 accepted: july 26th 2021 https://www.eldiario.es/andalucia/desdeelsur/espana-convenio-europeo-derechos-humanos_132_5956586.html https://www.eldiario.es/andalucia/desdeelsur/espana-convenio-europeo-derechos-humanos_132_5956586.html http://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate http://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate human rights obligations, especially, in times of crisis 1. introduction 2. characteristics of human rights obligations 2.1. the objective nature of obligations 2.2. obligations independent of the principle of reciprocity 2.3. collectively guaranteed obligations 2.4. obligations arising from mandatory rules 2.5. obligations towards people beneficiaries of obligations 2.6. extension of accountability 3. maintenance obligations in times of crisis 3.1. derogation and limitation of rights 3.2. prohibition of regressivity 4. concluding notes bibliographical references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 181 the protection of access to food for civilians under international humanitarian law : acts constituting war crimes adriana fillol mazo 1 abstract: the objective of this paper is to examine the specific provisions, within the framework of international humanitarian law (ihl), that protect the human right to food of the civilian population and to observe to what extent the protection of access to food is an issue taken into account by ihl during the development of an armed conflict. answering these questions requires a detailed analysis of this branch of international law, in order to identify the specific rules of ihl that aim, directly or indirectly, to ensure that civilians do not see denied their access to food during the armed conflict, whether international or noninternational. in many armed conflicts, a greater number of civilians die from food deprivation than as a direct result of hostilities. in this sense, the statute of the international criminal court criminalizes those acts that, during the armed conflict, violate ihl prohibitions related to food issues, thus we will also mention them, with the aim of clarifying the possible individual criminal responsibility attributed to those who carry out such acts. the scientific method that has been used in this work is the legal-sociological method, insofar as it is the one that we consider most appropriate for the multidisciplinary approach, always from the legal point of view, regarding the understanding of the rules, the lack of them, their effectiveness, their rationale, etc. this method is based on the idea that law cannot be studied as an isolated domain but must be analysed as part of social reality. the elaboration of this work, with a multidisciplinary object, has also required the use of several methodological techniques, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity. keywords: human right to food, food security, armed conflict, international humanitarian law, civilian population, war crimes, justiciability. summary: 1. the impact of armed conflict on the right to food. 2. the rules of international humanitarian law that protect access to food for the civilian population during the development of the armed conflict. 2.1. prohibition of starvation of civilians as a method of warfare. 2.2. prohibition of attacking, destroying, removing or rendering useless indispensable goods to the survival of civilian population. 3. assistance to protected persons in the context of international and non-international armed conflict. 4. criminalization of serious violations of the rules of international humanitarian law protecting access to food by the civilian population. 4.1. acts constituting war crimes. 5. conclusions 1. the impact of armed conflict on the right to food contrary to popular belief, during situations of armed conflict more people die directly due to lack of food and illnesses than bullets and bombs. sometimes starvation is 1 phd in law. university of seville, spain (afillol@us.es) and university of cagliari (italy). this research has been developed within the framework of a postdoctoral stay at the max planck institute for comparative public law and international law. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 182 used as a political weapon, when crops are destroyed or poisoned and relief supplies are blocked. other times, populations are displaced from their houses with the explicit aim of depriving people of resources with which to feed themselves.2 according to the fao, “the proportion of who are undernourished is almost three times as high in states in conflict affected by protracted crisis as in other developing countries” (fao, 2016, p.2). also, countries with high levels of hunger and malnutrition are particularly susceptible to war (pinstrup-andersen and shimokawa, 2008, pp. 514-520). currently, western asia has become one of the regions with the highest rate of food insecurity due to the development of armed conflicts. likewise, undernourishment increases in countries affected by conflict in sub-saharan africa (fao, 2019, p.10). furthermore, economic shocks are contributing to prolonging and worsening the severity of food crises caused primarily by conflict (fao, 2019, p.51). the international committee of the red cross (icrc) argues that armed conflict is one of the key reasons for lack of food and violations of the right to food.3 in this regard, the icrc maintains that humanitarian law contains many provisions related to the protection of access to food in situations of armed conflict, and therefore these provisions should be considered as an essential component of the legal framework protecting the right to food and food security. conflicts lead to the development of the most severe forms of famine and place families and communities in a situation of extreme food vulnerability, since conflicts break the cycle of food production and distribution (rodríguez de taborda, 2013, p.2). hilal elver, the united nations special rapporteur on the right to food, has published, in july 2017, a specific report focused on the right to food in situations of armed conflict, which highlights the the resurgence of hunger derived from conflicts and prolonged crises. according to the report, around 70 million people in 45 states are currently in need of emergency food assistance due to these causes, especially this aid is urgent for yemen, south sudan, nigeria, syria and somalia (elver, 2017, p.4). the report also records that “hunger continues to inflict massive casualties in combat zones”, despite the fact that “the current regulatory architecture of human rights law and the international humanitarian law system has developed elaborate rules to protect the 2 see: ziegler, j. et al. (2011). “the right to food in situations of armed conflict”, in ziegler, j., golay, c., mahon, c., way, s.a. (coords). the fight for the right to food, palgrave macmillan, london, pp. 101-102; pinstrup-andersen, p. and shimokawa, s. (2008). “do poverty and poor health and nutrition increase the risk of armed conflict onset?”, food policy, 33(6), pp. 514-520. 3 icrc, statement made by icrc to the commission on human rights at its fifty-seventh session on agenda item 10. reference found in: general assembly (2001). un.doc. a/56/210, 23 july 2001, the right to food, para. 37-40, available at: https://unispal.un.org/dpa/dpr/unispal.nsf/0/bf212836491d59268525 6ae60074c35e. accessed: 13 april 2020. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 183 livelihoods of people in times of war”. according to elver, the rise of hunger in these cases occurs due to the breach of these two areas of law by states and other political agents. the duration of the conflict affects the subsequent recovery of the population. the prolonged crisis will severely affect the productive bases of food, there will be a greater risk of famine and, consequently, the resilience of the population to its recovery will be lower (pejic, 2001, pp. 1097-1109). in the worst case, the situation of hunger among civilian population can be used as a form of weapon of armed conflict, something that is strictly forbidden by the provisions of international humanitarian law,4 as we will see later. 2. the rules of international humanitarian law that protect access to food for the civilian population during the development of the armed conflict ihl is designed to protect people, civilian property and limit the use of certain methods and means of warfare. its main objective is to protect persons who do not take part in hostilities, such as civilian population, wounded, prisoners of war, shipwrecked persons, etc. women and children are automatically covered as persons who are not taking part in the hostilities (if they are not combatants, obviously) and they receive special protection according to the conventions and protocols. unlike economic, social and cultural rights, ihl is not subject to progressive realization, but must be implemented immediately. it also binds both state and non-state actors. the fundamental principles of ihl, which protect the civilian population, have a direct impact on the protection of the right to food during armed conflict, as we will see below. as is known, based on these principles, parties to an armed conflict must at all times distinguish between the civilian population and combatants and between civilian objects and military objectives,5 so that direct attacks are only against military objectives. it must be remembered that, with respect to food security and access to food for the civilian population, the protection of civil property is of fundamental importance. these 4 see: hutter, s. (2019). “starvation in armed conflicts: an analysis based on the right to food”, journal of international criminal justice, volume 17, issue 4, pp. 723-752. 5 see: customary ihl: rule 1, “the principle of distinction between civilians and combatants”: https://ihl -databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1; rule 7, “the principle of distinction between civilian objects and military objectives”: https://ihl-databases.icrc.org/customary-ihl/eng/docs /v1_rul_rule7 . accessed: 13 april 2020. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 184 principles, applicable in any kind of armed conflict,6 have been known as the principle of distinction7 and the principle of proportionality.8 since most contemporary rules of ihl are contained in the four geneva conventions of 1949 and the two additional protocols of 1977,9 our analysis will focus on studying these sources of ihl, regardless of whether we mention, secondarily, to other sources of ihl.10 6 see: cij, activités militaires et paramilitaires au nicaragua et contre celui-ci (nicaragua c. etats-unis d’amérique), arrêt du 27 juin 1986, para. 2018. 7 the international court of justice has considered the fundamental nature of the principle of distinction in its advisory opinion on the legality of the threat or use of nuclear weapons of 8 july 1996, where it identifies the cardinal principles contained in the sources of ihl, among those that stand out: the protection of the civilian population and civilian objects, the distinction between combatants and non-combatants, the distinction between civilian and military objectives and the prohibition of superfluous injury to combatants. as a general rule, the principle of distinction permits direct attacks only against the armed forces of the parties to the conflict, while the peaceful civilian population must be spared and protected against the effects of the hostilities. see: dupuy, p.m. (1997). “analysis of the advisory opinion of the international court of justice of 8 july 1996 on the legality of the threat or use of nuclear weapons”, in fernández sánchez, p.a. (coord.) (1997). la licitud del uso de las armas nucleares en los conflictos armados, university of huelva, spanish red cross, ministry of defence, seville, pp.87-100. see also: icrc, ihl database: rule 1. the principle of distinction between civilians and combatants, available at: https://ihl-databases.icrc.org /customary-ihl/eng/docs/v1_rul_rule1. accessed: 13 april 2020 8 the proportionality principle determines the fact that belligerents cannot use any means at their disposal to attack the enemy. its content is included in the preamble of the declaration of st. petersburg of 1868 and in the hague regulations of 1907, in which article 22 provides that “belligerents have not an unlimited right in regard to their choice of methods of harming the enemy”. so, indiscriminate attacks are prohibited. this principle implies that collateral civilian damage arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations. as can be seen, the principle of proportionality is linked to the principle of distinction, which it reinforces in terms of protecting the immunity of the population and civilian property. article 51(5) (b) of the 1977 additional protocol i seems to conventionally express the principle of proportionality by prohibiting attacks against a legitimate objective when “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. in fact, pursuant to article 8(2) (b)(iv) of the 1998 icc statute, the following constitutes a war crime in international armed conflicts: “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects […] which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. see also: gaggioli g. (2017). “el uso de la fuerza en los conflictos armados. interacción entre los paradigmas de la conducción de hostilidades y del mantenimiento del orden”, comité internacional de la cruz roja, ginebra, pp.9-11. 9 for a detailed study of international humanitarian law, see: ramón chornet, c. (2005). “demasiado tarde para la población civil. el cometido del derecho internacional humanitario”, in gutiérrez espada, c. (coord.), el derecho internacional: normas, hechos y valores. liber amicorum josé antonio pastor ridruejo, servicio de publicaciones de la universidad complutense de madrid, madrid, pp.287-299. in relation to the protection of the right to food during armed conflict under international humanitarian law, see: kracht, u. (2003). “human rights and humanitarian action: the right to food in armed conflict”, in bergsmo, m. (ed.), human rights and criminal justice for the downtrodden: essays in honour of asbjørn eide, martinus nijhoff, leiden/boston, pp. 261-290. 10 for example, in the framework of ihl, and as far as we are concerned, the convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction (1997) has also been relevant because it prohibits the use of anti-personnel mines. the adoption of this convention adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 185 while ihl does not mention the “right to food” or “food security,” as such, many of its provisions are intended to ensure that people are not denied access to food during the armed conflict (pejic, 2001; kracht, 2003). some of these provisions impose preventive measures, while others apply to humanitarian and relief assistance once preventive measures fail. additional provisions also provide for access to food by specific groups of people (prisoners of war, internees, etc.). preventive rules include, for example, the prohibition of starvation of civilians as a method of warfare, the prohibition to destroy foodstuffs, crops, livestock, drinking water installations11 and other goods that are essential to the survival of the civilian population, the prohibition on forced displacement and the prohibition of attacks against the natural environment. 2.1. prohibition of starvation of civilians as a method of warfare the rules of ihl guaranteeing access to food for the civilian population in a preventive manner are based on two fundamental principles: the prohibition of starvation of the civilian population as a method of warfare, and the prohibition of attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population. we must not forget, as we said earlier, that these principles are complemented and reinforced by a more general principle, the principle of distinction between civilian objects and military objectives. according to this principle or rule of customary law, only military objectives can be attacked. the additional protocols explicitly prescribe these rules, whether in the context of an international or non-international armed conflict, as we are going to see. current ihl explicitly prescribes the prohibition of the use of hunger against the civilian population. this innovation has been introduced by the 1977 additional protocols, both for international and non-international conflicts. therefore, there is an explicit prohibition of starvation of civilians as a method of warfare in both international and non-international conflicts. that prohibition is violated not only when denial of access to food causes the death of the population, but also when the population suffers from hunger because of deprivation of food sources or supplies. in this regard, the prohibition of starvation, as a method of warfare, is also implemented through provisions prohibiting attacks on elements necessary for the survival of the civilian population, including food and drinking water. was intended to protect the civilian population from the effects of landmines that persist beyond the strict duration of the armed conflict. there is a relationship between landmines and food security to the extent that possible presence of mines, and the fear of mines being detonated, is a factor that can coerce the access and passage of local producers to farmland, and of course the fear of damage to their physical integrity. 11 in times of conflict, the geneva conventions and their additional protocols do not expressly mention the right to water; however, water is included de facto in food and relief supplies system. therefore, water benefits from the same protection as that established by humanitarian law for food and other goods essential for the survival of the civilian population. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 186 let us look at this prohibition in detail: in the context of an international conflict, article 54, paragraph 1, of additional protocol i expressly states that: “starvation of civilians as a method of warfare is prohibited”. as the international committee of the red cross (icrc) has commented, the prohibition of starvation as a method of warfare is not only violated by directly starving the population to death, but is also violated when a party to the conflict deliberately causes the population to suffer hunger, particularly by depriving it of its sources of food or of supplies.12 by using the term “starvation” as a method of warfare, the aim is to prevent it from being used as a weapon to annihilate or weaken the population. according to the rome statute of the international criminal court, the intentional use of starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival is considered a war crime in international armed conflict.13 the prohibition of starvation as a method of warfare is applicable both in occupied and unoccupied territories. this rule could have been placed in title iii, section i, on “methods and means of warfare”, of additional protocol i, but as it directly concerns the civilian population, its position seems justified. the prohibition of starvation of the civilian population is also imperative in the context of a non-international armed conflict, according to article 14 of additional protocol ii. this article provides that: “starvation of civilians as a method of combat is prohibited”. in relation to the preparatory work for additional protocol ii, it was preferred to use the word “method of combat” instead of “method of warfare” (used in additional protocol i) because it was understood that it was a more appropriate term in an instrument related to non-international armed conflicts. in contrast, the term method of warfare was more appropriate in the context of an armed conflict between states. in any case, additional protocol ii prohibits starvation when it is used as a weapon to annihilate the civilian population, in the same way as additional protocol i prohibits starvation of the civilian population as a method of warfare in the context of an international conflict. 12 see: icrc (1987). comment of the international committee of the red cross, additional protocol i, article 54, para. 1, section 2089. available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/comment.xsp ?action=opendocument&documentid=6377cfd2c9d23f39c12563cd00434c81. accessed: 14 april 2020. 13 article 8.2 (b)(xxv) of the statute of the international criminal court. an example of this occurred when, from april 1992 to june 1995, yugoslav federal army units and serbian militias besieged the city of sarajevo, imposing a food blockade and causing thousands of deaths. see: un. doc, economic and social council, e /cn.4/ 2001/53, 7 february 2001, para. 74; un doc., a/56/210, 23 july 2001, note by the secretary-general **, preliminary report of the special rapporteur of the commission on human rights on the right to food, jean ziegler, para. 46 adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 187 the prohibition of starvation against the civilian population as a method of combat is a rule that cannot be derogated from. the literal wording of this prohibition makes it clear that it is not possible to make any exceptions in case of imperative military necessity, as it is done in other provisions. it is a rule promulgated for the benefit of civilians.14 it should therefore be noted that blockade and siege15 would only be considered lawful methods of combat if they are directed exclusively against combatants. we say this because, according to the prohibition indicated above, it would be necessary to distinguish between the siege of a city (where there are combatants but also civilian population inside) and the siege of a military fortress stricto sensu. in the second case, hunger could be used as a method of combat and it would be lawful the systematic destruction of food that could be consumed by besieged combatants, since these actions are directed against combatants. while in the first case, since the civilian population would be directly affected, we understand that it would be forbidden to cause hunger and destroy the essential assets for the survival of the population, even if the enemy combatants also benefit from those. moreover even if the population is finally damaged by such methods, we understand that, in the light of article 18 paragraph 2 of additional protocol ii,16 relief actions in favor of the population should be authorized when they suffer excessive deprivation due to to the lack of essential supplies for their survival. in this same sense, the icrc considers that articles 14 and 18 of additional protocol ii should be read together as complementary measures, so that the argument of military necessity is not used to justify the starvation of the civilian population. as soon as essential goods are missing, international relief actions provided for in article 18 should be authorized to respect the obligation derived from article 14 of additional protocol ii. 2.2. prohibition of attacking, destroying, removing or rendering useless indispensable goods to the survival of civilian population additional protocol i in its article 54 paragraph 2 prohibits depriving civilians of their assets necessary for their survival in the context of an international armed conflict. in this sense, it states that: “it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance 14 see: icrc (1987). comment of the international committee of the red cross, additional protocol ii, article 14, section 4796. available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/comment.xsp?action= opendocument&documentid=22a3363fa0482a57c12563cd0043ab5d. accessed: 14 april 2020. 15 the blockade aims to prevent military equipment from reaching enemy forces, for example by impeding maritime trade or one of their coastal provinces, and siege consists of surrounding an enemy location by isolating those within any communication to achieve their surrender. 16 “if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the high contracting party concerned”. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 188 value to the civilian population or to the adverse party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”.17 this provision develops the prohibition formulated in article 54.1 of protocol i, in relation to the use of starvation of civilians as a method of warfare.18 it should be noted that the expression used (“such as...”) in article 54.2 of additional protocol i, shows that the list of protected goods is merely illustrative. an exhaustive list could have led to omissions or arbitrary selection. as the text of the article reveals, reference is made to objects and goods that are indispensable for the survival of the civilian population. it should also be added that the verbs “attack”, “destroy”, “remove” and “render useless” are used to cover all possibilities, including pollution, by chemicals or other agents, of water reservoirs or destruction of crops by chemicals or products.19 therefore, physical destruction includes the destruction of crops, either by chemicals or by contamination of water installations. we consider that, however, there would also be a violation of this prohibition if landmines rendered agricultural areas unusable. the prohibition in article 54, paragraph 2, of additional protocol i has a number of exceptions. thus, it is established that: “the prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse party: (a) as sustenance solely for the members of its armed forces; or (b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement”.20 the following ideas can be used to clarify the meaning of this provision: -first of all, it would be lawful that food supplies intended for the exclusive use of the armed forces could be attacked and destroyed, although we consider that agricultural areas or drinking water facilities would hardly be used exclusively for the benefit of the armed forces. 17 paragraph 4 of article 54 of additional protocol i also recalls that these mentioned and protected assets/ objects may not be subject to reprisals. 18 the approach of article 54 of protocol i responds to a desire for effective protection: the first section has the purpose of establishing the principle by which “it is prohibited, as a method of war, to starve civilians”, and the second and subsequent sections define the modalities of application and the regime of the general rule. 19 see: icrc (1987). comment of the international committee of the red cross, additional protocol i, article 54, op.cit., section 2101. 20 article 54.3, additional protocol i. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 189 -secondly, when objects are used for purposes other than the subsistence of members of the armed forces and its use is in direct support of military action, attacks on such objects, by the adverse party, would be lawful unless that actions have serious effects on supplies to the civilian population that they result in starvation or forced displacement.21 this is the provision that gives meaning to the reference in article 54.2 to the adverse party (it is prohibited to attack or destroy objects indispensable to the survival of the civilian population for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party in order to starve out civilians, to cause them to). in that sense, if the objects referred to in article 54, paragraph 2 are used in support of military action, the adverse party could attack or destroy them, provided that the consequence of such attack does not leave the population so deprived of food that the result is eventually starvation or forced displacement. that is, the reference to “the adverse party” in article 54, paragraph 2, is necessary to prevent the enemy state from being deprived of such objects indispensable to the civilian population under the exceptions for military necessity. the same prohibition related to the attacks against objects indispensable to the survival of the civilian population applies in the context of non-international armed conflicts. in this regard, additional protocol ii in its article 14 states that: “it is prohibited to attack, destroy, remove or render useless, for that purpose (starvation of civilians as a method of combat), objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works”. we can see how this article 14 gives concrete expression to the general formulation of protection of the civilian population set out in article 13 of additional protocol ii, according to which “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”. in accordance with the terms of article 14 of additional protocol ii (“starvation of civilians as a method of combat is prohibited. it is therefore prohibited to attack, destroy […], for that purpose, objects indispensable to the survival of the civilian population […]”), it seems that the attack, destruction, removal or rendering useless objects or property indispensable to survival are prohibited only insofar as such actions are carried out with the intent to starve civilians, which may be difficult to prove. in this regard, lópez-almansa beaus believes that this intention could be inferred from the explicit statements of the attacker, or from the factual circumstances of the attack (e.g, whether or not the attacker makes efforts to distinguish between civilian and military objectives, whether or not the attacker gives consent to the access of relief convoys to the affected population, etc.) (lópez-almansa beaus, 2006, p.255). 21 see: icrc (1987). comment of the international committee of the red cross, additional protocol i, article 54, op.cit., section 2112. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 190 however, we believe that the absolute prohibition of starvation, as a method of combat, for civilians means that the attacks and the indiscriminate destruction of those goods, which are indispensable for the population (food, agricultural areas, livestock, crops, water reserves, etc.), are also considered to be prohibited de facto, even if these attacks were launched without the intention of starvation for civilians. why? because this violates the principle of distinction and the principle of proportionality, and because these attacks could result in the death of the population, in long-term, from the deprivation of access to these essential goods. 3. assistance to protected persons in the context of international and non-international armed conflict although humanitarian assistance can benefit all victims of war, we are only going to analyze the assistance provided to the civilian population in general, which will have different legal regimes depending on whether we are in the context of an international armed conflict or not. in particular, article 23 of the fourth geneva convention enshrines the obligation of each high contracting party to authorize the free passage of all consignments of medical equipment and objects necessary for religious purposes intended only for civilians of another high contracting party, even if it is an enemy. the parties shall also permit the free passage of all consignments of essential foodstuffs, clothing and tonics reserved for children under fifteen, expectant mothers and maternity cases. it follows from the above-mentioned article that when humanitarian assistance is provided by impartial organizations, all states (and specifically the parties to the conflict), have an obligation to allow free passage for humanitarian assistance to access certain categories of people, like pregnant women and children,22 even though those persons belong to an adversary state or an enemy non-state faction, without offering obstacles to the delivery of the shipments. however, this general obligation does not prevent the state authorizing free passage from determining the technical conditions of such passage. these ideas can also be seen in article 59 of the fourth convention, according to which: “if the whole or part of the population of an occupied territory is inadequately supplied, the occupying power shall agree to relief schemes on behalf 22 article 23 of the iv convention, which specifies that the delivery of food is “reserved for children under fifteen and pregnant women”, was designed to address mainly humanitarian assistance in situations of blockade in which it was required the free passage of essential foods for them. see: icrc (1958). comment of the international committee of the red cross, article 23, convention iv. available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/comment.xsp?action=opendocument& docum entid=660cc3cb70e98f1ac12563cd0042b693 . accessed: 13 april 2020. however, article 70.1 of additional protocol i extends this coverage to the entire civilian population that does not have adequate supplies, including food, provided relief measures are humanitarian and impartial. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 191 of the said population, and shall facilitate them by all the means at its disposal. such schemes […] shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing. all contracting parties shall permit the free passage of these consignments and shall guarantee their protection”. the inclusion of this provision in the fourth convention was intended to guarantee the right of the civilian population, in the occupied territories, to receive humanitarian assistance. during the second world war, unlike prisoners of war and civilian internees, who were covered by the prisoners of war convention of 1929,23 the civilian population of the occupied territories did not have the benefit of any treaty provision authorizing the receipt of assistance. therefore, there was no obligation for the belligerents to accept, nor to allow the free transit of relief consignments intended for the civilian population (icrc, 1948). from the provisions of article 59 of the iv convention we can deduce that, in cases where the occupied territory is not adequately supplied, the occupying power has the obligation to accept the relief supplies destined for the population. additional protocol i, article 70.1, supplements the provision of the fourth convention by prescribing that: “if the civilian population of any territory under the control of a party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in article 69,24 relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the parties concerned in such relief actions. offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts”.25 23 see: icrc (1948). report of the international committee of the red cross on its activities during the second world war, part iv, vol. iii, geneva, pp. 359-533. available at: https://ia800300.us.archive.org/0/items/re portoftheinternationalcommitteeoftheredcrossonitsactivitiesduring/reportoftheinternationalcom mitteeoftheredcrossonitsactivitiesduringthesecondworldwarseptember11939-june301947vol.3.pdf. accessed: 13 april 2020. 24 relating to the essential needs of the population in the occupied territory. according to this article, entitled “basic needs in occupied territories”, “in addition to the duties specified in article 55 of the fourth convention concerning food and medical supplies, the occupying power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship”. 25 when it is necessary that the aid provided includes relief personnel, in particular for the transport and distribution of relief shipments, the participation of such personnel shall be subject to the approval of the party in whose territory they will carry out their duties. these relief personnel, on the one hand, will be protected by the party that has given them their approval and, on the other hand, assisted, in the fulfillment of their mission, by the party that receives the shipments. relief personnel activities may only be limited and their movements temporarily restricted, in case of imperative military necessity. see article 71 of additional protocol i, entitled “personnel participating in relief actions”. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 192 if we look at the wording of article 59 of the iv convention and article 70.1 of additional protocol i, we can see that there is a slight qualification. the provisions of article 59 of the iv convention mean that when it is an occupied territory, in the event that the population of that occupied territory is insufficiently supplied, the occupying power “shall agree” relief actions in favor of said population.26 however, when article 70.1 of additional protocol i refers to the civilian population of any territory, it is expressly stated that relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, “subject to the agreement of the parties concerned in such relief actions”. this raises the following question: does subjection to the agreement of the parties, established in article 70.1, imply that the state can deny relief actions when the population is insufficiently supplied with food? to answer this question, we will refer to the the icrc’s commentaries on the scope of article 70(1) of additional protocol i. from these comments it follows that the obligation of the parties is not to accept relief actions in any case, but not to arbitrarily refuse humanitarian assistance (giles carnero, 1997, p.46). specifically, the icrc uses this expression: “did not imply that the parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions. a party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones”.27 therefore, the expression “subject to the agreement of the parties concerned should not be interpreted as “with the discretionary consent of the parties”. given as that article 70.1 expressly states that relief actions “shall be undertaken”, this expression implies terms of obligation and not of discretion (fernández sánchez, 1995, p.37). therefore, the subjection to the agreement of the parties must be interpreted in the sense that either they can fix the technical conditions of distribution or that they could only deny humanitarian assistance through well-founded reasons when the assistance does not meet the required conditions, that is, humanitarian and impartial character, carried out without any distinction of an unfavorable nature, etc. anyway, we understand that if the civilian population, of any unoccupied territory, is short of food, parties concerned would necessarily have to authorize the entry of impartial humanitarian agencies for food distribution because otherwise we understand that they would violate the prohibition of article 54 paragraph 1 of additional protocol i, which prohibits using starvation of civilians as a method of warfare. in this sense, we would be faced with an obligation of behaviour (not arbitrarily refusing humanitarian assistance) and of result (allowing humanitarian assistance to finally reach the underserved population). 26 article 59 iv geneva convention: “if the whole or part of the population of an occupied territory is inadequately supplied, the occupying power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal”. in spanish the term used is: “aceptará” and in french the word is “acceptera”. 27 see: icrc (1987). comment of the international committee of the red cross, additional protocol i, article 35, section 2805. available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/comment.xsp?action =opendocument&documentid=2f157a9c651f8b1dc12563cd0043256c accessed: 14 april 2020. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 193 non-compliance with these provisions of ihl led to the security council’s decision on the yugoslav conflict. resolution 764 of 13 july 1992 noted the serious violations of ihl during the conflict and reaffirmed the duty of all parties to comply with their obligations under this law.28 the continuing aggravation of the yugoslav conflict and the failure to comply with ihl led the council to take a further position on the matter, declaring in resolution 770 of 13 august 1992 that the situation in bosnia and herzegovina represented a threat to international peace and security, recognising that the provision of humanitarian assistance to that region was an important part of the efforts to restore peace.29 the council also adopted a resolution on the situation in bosnia and herzegovina. since conditions hampering the delivery of humanitarian supplies persisted, the council demanded that the icrc and other humanitarian organizations be given immediately permanent and unrestricted access to camps, prisons and detention centres to ensure that all detainees are treated humanely, including specifically the distribution of food and medical care. in the same resolution, the council also urged all states to take the necessary measures to facilitate humanitarian assistance to these áreas, in order to ensure humanitarian assistance to sarajevo and bosnia. according to the wording of the resolution (“to take all measures necessary to facilitate the delivery”), nothing seemed to prohibit forces protecting a humanitarian convoy the use necessary and proportional force to ensure that humanitarian assistance was delivered. within the framework of a non-international armed conflict, article 3 common to all the geneva conventions and protocol ii provides the humanitarian assistance to civilians, including persons deprived of liberty. in accordance with common article 3: “an impartial humanitarian body, such as the international committee of the red cross, may offer its services to the parties to the conflict”. therefore, the offer of services of an impartial humanitarian institution is legitimate. without a doubt, the parties to the conflict can reject it if they can do without it, but the parties can no longer see that aid as a hostile act, nor as an attempt to interfere in the internal affairs of the state,30 as the russian authorities intended it to occur in relation to chechnya. this provision enshrines a genuine “right of humanitarian initiative”.31 this right can be exercised against all parties to a conflict, including non-state parties. however, 28 see: un doc., s/res/764 (1992) of 13 de july 1992, para. 10. 29 see: un doc. s/res/770 (1992), of 13 de august 1992, p. 1. 30 see: cij, activités militaires et paramilitaires au nicaragua et contre celui-ci, op.cit., para. 242 : « il n’est pas douteux que la fourniture d’une aide strictement humanitaire à des personnes ou à des forces se trouvant dans un autre pays, quels que soient leurs affiliations politiques ou leurs objectifs, ne saurait être considérée comme une intervention illicite ou à tout autre point de vue contraire au droit international ». 31 the right to offer services, which is also sometimes called the “right of humanitarian initiative”, should not be confused with the so-called “right of humanitarian intervention” or with the “responsibility to protect”, two different concepts that have generated a great debate, for example about if international law the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 194 when an offer of services is made to a party to a non-international armed conflict, there is no requirement in common article 3 to make an equivalent offer to the other party or parties to the conflict. the services provided by the impartial humanitarian agency shall be intended for persons protected by common article 3, that is, persons who do not participate directly in hostilities, including members of the armed forces who have deposited weapons and persons placed outside of combat due to illness, injury, detention or any other cause. therefore, civilians benefit from the protection of common article 3, except when they actively participate in hostilities. the willingness and capacity of impartial humanitarian bodies to respond to the humanitarian needs of people affected by a non-international armed conflict does not undermine the fact that, as a matter of international law, based on the principle of subsidiarity, the main responsibility for satisfying those needs fall on the parties to the conflict. the activities of humanitarian agencies should only complement, where necessary, the efforts of those parties in this regard. this is why humanitarian organisations are not legally obliged to offer their services, as can be seen from the phrase “may offer” in common article 3.32 in similar terms, article 18 of additional protocol ii provides that: “1. relief societies located in the territory of the high contracting party, such as red cross (red crescent, red lion and sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. the civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked. 2. if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the high contracting party concerned”. allows measures such as the threat or use of force when such measures are motivated by humanitarian considerations. see: lowe, v. and tzanakopoulos, a. (2011). “humanitarian intervention”, max planck encyclopedias of international law mpil, published under the auspices of the max planck foundation for international peace and the rule of law under the direction of rüdiger wolfrum. similarly, the analysis of article 3 (2) must be done without prejudice to the actions of the security council, in accordance with the charter of the united nations, when it deems appropriate to authorize humanitarian assistance actions. this occurred in the case of somalia, in which council resolution 794 of december 3, 1992 authorized, acting in accordance with chapter vii of the charter, the secretary general and member states to use all necessary means in order to establish a safe environment for humanitarian relief operations in somalia as soon as possible. see: un.doc., s/res/794 (1992), of 3 december 1992, adopted unanimously, paragraphs 8 and 10. 32 see: icrc (2016). comment of the international committee of the red cross, geneva convention i, article 3, section 782. available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/comment.xsp?action=o pendocument&documentid=59f6cdfa490736c1c1257f7d004ba0ec accessed: 14 april 2020. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 195 we can appreciate, unlike common article 3, that article 18 of additional protocol ii does provide a right of humanitarian initiative by the civilian population. that is, while common article 3 allowed only impartial humanitarian agencies to offer assistance, additional protocol ii authorizes the civilian population to spontaneously offer its services to collect and care for the wounded, sick and shipwrecked. also, article 18 refers to relief actions of international origin when the civilian population is suffering extreme deprivation due to lack of supplies indispensable for their survival.33 but in this case the article provides that “relief actions shall be undertaken subject to the consent of the high contracting party concerned”. so, article 18(2) of additional protocol ii explicitly addresses the requirement to obtain the consent of the “high contracting party concerned” with respect to a particular type of humanitarian activities, i.e., relief actions. the logic, then, implies that in the context of a noninternational armed conflict, an impartial humanitarian organization may only carry out proposed humanitarian activities if it has consent to do so. in exceptional circumstances, however, seeking and obtaining the consent of the party concerned may be problematic. this may be the case, for example, when there is uncertainty regarding the government it controls, or when state authorities have collapsed or have ceased to function. in these cases, since in principle “high contracting party concerned” should be interpreted as “government in power”, when it is not possible to determine which are the authorities concerned, consent will be presumed in response to the urgency and non-delay of assistance to the civilian population. however, the fact that consent is required does not mean that the decision is left to the discretion of the parties. if the survival of the population is threatened and a humanitarian organization, which meets the necessary conditions of impartiality and nondiscrimination, can remedy this situation, relief measures must be carried out. according to the icrc, military necessity is not a valid reason under humanitarian law to reject a valid offer of services or to deny in full the humanitarian activities proposed by impartial humanitarian organizations.34 in these cases we understand that if the only way to combat hunger is through humanitarian assistance, the party concerned (in the framework of a non-international armed conflict) has an obligation to authorize such actions, understanding that if it does not do so, such rejection would amount to a violation of the rule prohibiting the use of starvation of the civilian population as a method of combat (article 14 additional protocol ii). 33 it is clear that it is not possible to establish an exhaustive list of criteria to determine when the population is “suffering undue hardship”, but it is appropriate to take into account the usual standard of living of the population in question and the needs provoked by hostilities. see: icrc (1987). comment of the international committee of the red cross, additional protocol ii, article 18, section 4881. 34 see: icrc (2016), commentary of the international committee of the red cross, geneva convention i, article 3, op.cit., section 838. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 196 likewise, jean ziegler understands that rejecting the authorization of humanitarian aid that seeks the distribution of food, would imply a violation of the fundamental right to be free from hunger if civilians eventually die because of not receiving such food assistance (ziegler et al., 2011, p.105). in the context of non-international armed conflicts in addition to requiring the consent of the state to carry out relief actions (when the population is under-supplied), we find another aspect that differs from international armed conflicts. unlike ihl applicable to international armed conflicts, no provision specifically addresses the issue of whether the high contracting parties, different from those that are part of a non-international armed conflict, have the obligation to allow and facilitate rapid and unimpeded passage of relief shipments. it could be argued, at least tentatively, that this can be considered mandatory on the basis of the due diligence component enshrined in common article 1 (“to ensure respect for the conventions in all circumstances”). in any case, when a humanitarian organization can only reach its beneficiaries across the territory of a particular state, the humanitarian spirit on which the conventions are based suggests a legitimate expectation for that state does not abuse its sovereign rights. in any case, it could be argued that states have a duty to cooperate to promote universal respect for human rights and the effectiveness of such rights, according to resolution 2625 (xxv) of october 24, 1970.35 this resolution, adopted by consensus, of the general assembly has been pointed out by the international court of justice as “a text which provides an indication of the opinio iuris (of the states) on customary international law” (cij, 1986, para.191). in this regard, despite the lack of reference, within the framework of the noninternational armed conflict, to provisions that refer to the obligation to allow and facilitate the rapid and unimpeded passage of relief shipments, we understand that this obligation exists on the basis of customary international law concerning concerning friendly relations and co-operation among states. 4. criminalization of serious violations of the rules of international humanitarian law protecting access to food by the civilian population in addition to the specific provisions, along the route through the four geneva conventions and the two additional protocols, which specifically regulate food aspects of the civilian population in general, ihl also has complementary mechanisms for repression of those acts that violate the provisions protecting the population’s access and food availability during periods of armed conflict. although there are doubts about the 35 “states shall cooperate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance”. see: un doc., resolution 2625 (xxv), october 24, 1970, declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the united nations, p. 6. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 197 effective justiciability of the human right to food within the framework of international human rights law, because of its economic, social and cultural character and because its applicability is progressive, in ihl, by contrast, the provisions referring to access to food have immediate application, taking into account the seriousness of the circumstances that cause armed conflicts for the civilian population in general. the norms that guarantee food security during periods of armed conflict are norms whose violation can give rise, simultaneously, to individual criminal responsibility or to a security council resolution, within the framework of chapter vii, by which mandatory measures are taken to prevent these violations from continuing. for example, after determining the existence of a threat to peace (article 39 of the united nations charter), the security council may adopt a resolution and can take enforcement measures (articles 41 and 42 of the charter) to maintain or restore international peace and security. the fact that a belligerent state does not allow humanitarian or food assistance on its territory, when it is obliged to do so according to ihl, and ends up producing deaths by starvation of the civilian population, could mean that we are facing a threat to international peace and security. the security council may determine that such threat exists and decide what action should be taken. if we recall the case of somalia, the council determined that the magnitude of the human tragedy caused by the conflict, and further aggravated by the obstacles that were being created for the distribution of humanitarian assistance, constituted a threat to international peace and security. as a result, the council demanded that all parties, movements and factions in somalia take all measures necessary to facilitate the efforts of the united nations, its specialized agencies and humanitarian organizations to provide urgent humanitarian assistance to the affected population in somalia.36 when the council refers to “take all measures necessary”, we understand that it is authorizing even the use of force, if necessary, to ensure that humanitarian assistance finally reaches all civilian populations in need. in this situation the security council can act to impose food assistance and to stop the use of starvation as a weapon of war. therefore, if the obstacle of humanitarian assistance aggravates the conflict situation and this is determined by the council as a threat to peace, as happened in somalia, why not think that a famine situation occurred during the development of an armed conflict is of such magnitude that it could in itself lead to its qualification as a threat to international peace and security. it could be thought, therefore, that fundamental right to freedom from hunger37 would be formally more protected in times of war than in times of peace, since its violation 36 see: un doc. s/res/794, 3 december 1992, para. 2. 37 at this point it is necessary to clarify the differences between the right to food, the fundamental right to freedom from hunger and the concept of food security. the right to food is, as its name indicates, a right recognized in international instruments, binding and generating legal obligations. in this sense, it is a legal concept. specifically, the right to food is formulated in article 11 of the international covenant on economic, social and cultural rights (icescr). to better understand the literal wording of article 11 of the icescr, it should be noted that what we call the human right to food is actually an abbreviated expression by which we refer to the two formulations contained in article 11, that is, the right of every person to adequate food (para. 1) and the right to be free from hunger (para. 2). many analyzes have treated both formulations as practically synonymous, however, both the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 198 may give rise to individual criminal responsibility or to a security council resolution adopting coercive measures. according to philip g. alston, “the provisions of ihl that protect access to food are detailed and enjoy the extra guarantee offered by this branch of law, due to its wide acceptance by the international community, so it is worth asking why the hungry do not have similar levels of protection when there is no war” (alston, 1984, p.26). since it is possible to criminalize acts or omissions that may threaten the food security of war victims, we are going to study and analyze, in this section, the question of the qualification of war crimes when the provisions of ihl that protect the access to food of the civilian population are violated. within the complementary mechanisms of repression of those acts that may violate the provisions of ihl, in which food security is protected in periods of armed conflict, the provisions of the statute of the international criminal court (icc), adopted by the 1998, play a fundamental role. the statute systematizes in a general way the acts that violate ihl, from which individual criminal responsibility could be demanded, once the domestic courts have failed, including universal jurisdiction (fernández sánchez, 2007, pp.333-340). 4.1. acts constituting war crimes the term “war crimes” refers to serious violations of ihl that carry individual criminal responsibility. therefore, there must be an “obvious link” between an alleged criminal act and the armed conflict in order to qualify as a war crime.38 it is possible to qualify those acts that undermine the right to food, during armed conflicts, as war crimes, both within the framework of an international and non-international armed conflict. there are two specific actions that undermine the right to food described in the icc statute as war crimes: the use of starvation of the civilian population as a method of warfare and formulations are significantly different, since the first is much broader than the second. being protected from hunger is specified as a fundamental right. in fact, this is the only human right that the icescr classifies as “fundamental”, which denotes that it is given a higher normative status. however, taking into account the right to adequate food as a priority standard has important implications. in this sense, “freedom from hunger” can be achieved by simply supplying the necessary calories to prevent malnutrition or death. while it may be an argument to mobilize public-political opinion and national and international aid, that approach should be seen only as the first step in realizing the primary norm, which is the right to food. this has a quantitative dimension that goes beyond the minimum level of subsistence calories, implying those necessary for a normal and healthy active life. but it also has a qualitative dimension (which the formulation of protection against hunger lacks), which refers to the cultural convenience of food and respect for the value system of the habitual diet. the concept of food security is not a legal concept per se and therefore does not impose obligations on the parties or confer rights that can be claimed. food security is the definition of an objective, and therefore it is a term that has been interpreted in a more variable way, until we have arrived at the current concept that has achieved great acceptance by the international community: “food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food which meets their dietary needs and food preferences for an active and healthy life” (fao, 1996). the definition of this objective, however, should not be confused with the means to achieve it; that is, food security is an objective to be achieved that provides the ideal means for the full realization of the human right to food, but food security is not a specific policy agenda. indeed, the strategies or means to be employed to achieve food security are likely to have to change over time, to address new threats to people’s access of food. 38 see: icty, case no.: it-96-21-t, 16 november 1998, prosecutor v. zejnil delali], judgement, para. 193. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 199 the attack on the personnel or assets indispensable for survival (including food) involved in the framework of a humanitarian assistance mission in accordance with the charter of the united nations.39 a) the use of starvation of the civilian population as a method of warfare the icc statute explicitly criminalizes the act of “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the geneva conventions”.40 in particular, the elements of this crime are (international criminal court, 2002, p.31): “1. the perpetrator deprived civilians of objects indispensable to their survival. 2. the perpetrator intended to starve civilians as a method of warfare. 3. the conduct took place in the context of and was associated with an international armed conflict. 4. the perpetrator was aware of factual circumstances that established the existence of an armed conflict”. the problem arises from the fact that the icc statute, in article 8 second paragraph (b), where this type of war crime is inserted (intentionally using starvation of civilians as a method of warfare), specifies that “war crime means […] b) other serious violations of the laws and customs applicable in international armed conflict […]”. the elements of the crime also state that “the conduct took place in the context of and was associated with an international armed conflict”. this implies that, in principle, the acts constituting war crimes in subparagraph (b) do not apply in the context of non-international conflicts. this is despite the fact that additional protocol ii prohibits, as we have seen, the use of starvation of the civilian population as a method of combat (article 14). in particular, in 1998 there was a provision in the draft of rome statute that included the criminalization of starvation, as a war crime, within the framework of noninternational armed conflicts (world peace foundation, 2019). 39 recently the security council in its resolution of 24 may 2018, adopted unanimously, has strongly condemned the use of starvation of civilians as a method of warfare in a number of conflict situations and prohibited by international humanitarian law. in the same resolution, it also strongly condemns the unlawful denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access for responses to conflict-induced food insecurity in situations of armed conflict. see: un. s/res/2417 (2018), 24 may 2018, para.5 and para.6. 40 article 8.2b.xxv statute of the international criminal court. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 200 however, for reasons that are difficult to discern, the final draft of the rome statute did not include this provision. unfortunately, it is in the contexts of non-international armed conflicts that many cases of starvation of civilians can be seen, as we have seen in yemen, syria, south sudan, northeast nigeria and somalia. this legal gap seriously limits, in practice, the ability of the rome statute to effectively prosecute those acts that cause “contemporary hunger” in many parts of the world.41 so, would it be a war crime to starve the civilian population when this conduct takes place in the context of a non-international armed conflict? we understand that it would, to the extent that the practice of states fixes this prohibition (starvation of civilians as a method of warfare) as a rule of customary international law, applicable in both international and non-international armed conflicts (henckaerts and doswald-beck, 2007, pp. 2017-211). it is only necessary to observe the practice followed by states in relation to the so-called (by the international committee of the red cross) rule 53: “starvation as a method of warfare”. the icrc database shows how this prohibition has become a customary rule42 through its reception in other international instruments as well as in the military manuals of many states. for example, in spain, the criminal code defines (under crimes against the international community) and punishes the conduct of anyone who, in the context of an armed conflict, “haga padecer intencionadamente hambre a la población civil como método de guerra, privándola de los bienes indispensables para su supervivencia, incluido el hecho de obstaculizar arbitrariamente los suministros de socorro, realizados de conformidad con los convenios de ginebra y sus protocolos adicionales”.43 in line with these issues, in 1995, the appeals chamber of the international criminal tribunal for the former yugoslavia (icty), in the case tadić, noted that serious violations of fundamental provisions of international humanitarian law can be considered as war crimes regardless of whether such actions are committed in the context of an internal conflict. the chamber held that for a violation of humanitarian law to reach the level of a war crime, four conditions must be met:44 41 in 2018, switzerland proposed an amendment to the statute of the international criminal court to include the starvation of civilians within the list of war crimes capable of being committed in a non-international armed conflict. the language used in the proposal is almost identical to the wording of the crime as it appears in article 8.2 (b)(xxv). overall, there is strong support for the proposal from the majority of state delegates, although some reservations have been raised. however, the reservations appear to be based on a more general opposition to the jurisdiction of the international criminal court, rather than any principled objection to the substantive amendment. 42 see: icrc, ihl database customary ihl, practice relating to rule 53. starvation as a method of warfare, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule53 . accessed: 14 april 2020. 43 article 612.8 of the spanish criminal code. ministry of justice, criminal code and complementary legislation. edition updated to 6 september 2018. 44 see: icty, case no.: it-94-1-a, 2 october 1995, prosecutor v. du[ko tadi], decision on the defence motion for interlocutory appeal on jurisdiction, para.94. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 201 “(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in article 46, paragraph 1, of the hague regulations (and the corresponding rule of customary international law) whereby “private property must be respected” by any army occupying an enemy territory; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule”. starvation as a method of warfare in a non-international armed conflict meets these four conditions for it to be qualify as a war crime. first, this prohibition is expressly formulated in ihl; second, the prohibition has become a rule of a customary nature; third, it is a rule protecting a fundamental human right; fourth, the violation of this rule is typified in the icc statute and gives rise to the criminal responsibility of the individual who violates it. in this regard, antonio cassese understands that any attack on livelihoods serving the civilian population is prohibited under customary international law (cassese, 1984, p.91). on the other hand, the prohibition of starvation of the civilian population as a method of warfare reflects the principle of distinction, which we mentioned at the beginning of this section, according to which attacks may only be directed against combatants, the people who are not taking any active part in the hostilities can not be attacked. consequently, using starvation of civilians as a method of warfare is considered, under customary law, as a war crime regardless of the type of conflict in which it is committed.45 no measure of military necessity can therefore justify the starvation of civilians. in this order of things, the legal basis that can determine the commission of a war crime, when food security of the civilian population is threatened, can be seen in the following table 1. 45 for example, in the conflict in bosnia, the security council, in resolution s/res/787 of 16 november 1992, in paragraph 7, condemned all violations of ihl, including the deliberate obstruction of the delivery of food and medical supplies to the civilian population, reaffirming that those that commit or order the commission of such acts will be held individually responsible in respect of such acts. see: un resolution s/res/787 (1992), november 16, para.7. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 202 table 1. legal basis, in international humanitarian law, for determining the commission of a war crime in the framework of the protection of access to food for civilians rome statute of the international criminal court international humanitarian law iv geneva convention relative to the protection of civilian persons in time of war, 1949 protocol i additional to the geneva conventions, relating to the protection of victims of international armed conflicts, 1977 article 8.2(b) (xxv) for the purpose of this statute, “war crimes” means: “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the geneva conventions” article 23.1 “each high contracting party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another high contracting party, even if the latter is its adversary. it shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases”. article 54.1 “starvation of civilians as a method of warfare is prohibited”.46 article 54.2 “it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”. article 55.1 “to the fullest extent of the means available to it, the occupying power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate” protocol ii additional to the geneva conventions, relating to the protection of victims of noninternational armed conflicts, 1977 article 59.1 “if the whole or part of the population of an occupied territory is inadequately supplied, the occupying power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal”. article 14 “starvation of civilians as a method of combat is prohibited. it is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works”. source: own elaboration 46 the violation of article 54 of protocol i may constitute not only a war crime but also a crime of genocide, if starvation is committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, under the terms of the genocide convention of 1948 (article ii c.). adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 203 b) the attack on the personnel or assets indispensable for survival involved in the framework of a humanitarian assistance mission in the context of an international armed conflict, it is considered a war crime “intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the charter of the united nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict”.47 in this regard, in addition to the protection afforded to personnel and material of peacekeeping operations, humanitarian aid personnel and services whose objective is, for example, the distribution of food, are also protected, provided that the service is carried out under conditions of impartiality, neutrality and humanity. in the context of an international armed conflict, the elements of this crime are the following (international criminal court, 2002, p.18): “1. the perpetrator directed an attack. 2. the object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the charter of the united nations. 3. the perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. the perpetrator was aware of the factual circumstances that established that protection. 6. the conduct took place in the context of and was associated with an international armed conflict. 7. the perpetrator was aware of factual circumstances that established the existence of an armed conflict”. it is qualified as a war crime, in the framework of a non-international armed conflict, serious violations of article 3 common to the four geneva conventions, in particular “acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”.48 therefore, attacking humanitarian aid personnel 47 article 8.2 (b)(iii) statute of the international criminal court. 48 article 8.2 (c) statute of the international criminal court. the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 204 who deliver food in the context of a non-international armed conflict can be considered as a war crime. although article 3 common does not directly contain provisions for the protection of food security, unlike additional protocol ii, it clearly has the advantage of being representative of customary international law (than and shorts, 2003, p.90). therefore the article is binding on all states and, in this sense, mass hunger induced or forced would implicitly fit between the prohibitions it contemplates, especially as a form of cruel and / or inhuman treatment. for example, milorad krnojelac was found guilty of war crime for violating article 3 common of the geneva conventions, considering that he gave cruel treatment to non-serb detainees in kazneno-popravni dom, inflicting inhumane living conditions on them.49 in particular, the starvation of non-serbian prisoners was taken into account to assess whether these imposed inhumane living conditions could reach the level of “cruel treatment”.50 in the krnojelac case, the international criminal tribunal for the former yugoslavia noted that “perhaps the most marked contrast between the treatment of serbs and non-serbs was with regard to food, both in quantity and in quality”.51 in the context of a non-international armed conflict, the elements of this crime are practically the same as for the crime committed in the framework of an international armed conflict, with the exception of point number 6, since for this case it is established that “the conduct took place in the context of and was associated with a non-international armed conflict”. to these typified acts that are directly related to the protection of the right to food and food security, it is appropriate to add those that can indirectly cause food insecurity in times of armed conflict and that are equally criminalized by international law as a war crime. these include:52 a) grave breaches of the geneva conventions, such as extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (article 8.2 (a)(iv) icc statute); b) other serious violations of the laws and customs applicable in international armed conflict, such as: -intentionally directing attacks against civilian objects, that is, objects which are not military objectives (article 8.2 (b)(ii) icc statute), 49 see: icty, case no.: it-97-25-t, 15 march 2002, prosecutor v. milorad krnojelac, trial chamber ii, judgment, para.499. 50 ibidem, paras. 440-442. 51 ibidem, para. 442. 52 see: international criminal court (2002). “elements of crimes”, printpartners ipskamp, the hague. pp. 15, 18, 19, 26, 36. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 205 -intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (article 8.2 (b)(iv) icc statute), -pillaging a town or place, even when taken by assaul (article 8.2 (b) (xvi) icc statute); c) other serious violations of the laws and customs applicable in armed conflicts not of an international character, such pillaging a town or place, even when taken by assault (article 8.2 (e)(v) icc statute). as we can see, through the typification of these crimes, civil property is protected during the armed conflict and this can be an important aspect to avoid situations of hunger. the theft of the goods (looting, sacking) and the destruction of civilian property (grain reserves, food production equipment, cultivated plots of land, etc.) are often factors that contribute to generating famine during a period of armed conflict. (defalco, 2017, p. 1148.) 5. conclusions the development and a specific regulation of access to food take place in “peacetime” through the protection of the human right to food, in its broad version, and the consideration of the fundamental right to freedom from hunger in a universal instrument: international covenant on economic, social and cultural rights (icescr). in addition, numerous legal and political instruments (derived from international plans, agreements, meetings, summits and forums) seek to protect and to clarify the content of food security and the right to food in peacetime. however, we understand that the provisions of ihl that protect the right to food reinforce the protection provided on food issues by international law, especially international human rights law. it is sufficient to recall the judgment of the international court of justice of 9 april 1949, which stated that: “elementary considerations of humanity […] are even more exacting in peace than in war”. therefore, since access to food is linked to the dignity of each individual and protected as a fundamental human right, it is clear that what is prohibited in time of war, in relation to food issues, is also, a fortiori, prohibited in peacetime. the protection of the right to food and food security during armed conflict is an issue taken into account by the geneva conventions and the additional protocols. although it is true that neither food security nor the right to food is explicitly mentioned (which is logical given the date on which these conventions and protocols were created), the geneva provisions protect both the quantitative dimension of food security and the qualitative dimension by prescribing guarantees of the food diet that certain vulnerable groups of people (such as prisoners of wars, civilian internees, security detainees or pregnant women and mothers) should receive. in this sense, international humanitarian law contains important rules aimed at ensuring that persons affected by armed conflict the protection of access to food for civilians under international humanitarian law the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 206 have food or have access to it. while the rules are primarily formulated as obligations of parties to an armed conflict, rather than as rights, the results desired by international humanitarian law and international human rights law are similar: the capacity of civilians to obtain or receive adequate food. the principles of distinction and proportionality underpin the concrete and precise regulation of these provisions. so that, in any armed conflict, the right of the parties to the conflict to choose methods and means of warfare is not unlimited. starvation of civilians, as a method of warfare or combat is roundly prohibited in both international and non-international armed conflict. the prohibition is violated not only when a lack of food or denial of access to it causes death of civilians, but also when the population is caused to suffer hunger because of deprivation of food sources or supplies. the protection of the right to food during armed conflict is reinforced in two aspects: on the one hand, the prohibition of starvation of civilians as a method of warfare has become a customary rule, and must therefore be complied with in all circumstances, whether in an international armed conflict or an armed conflict of a non-international nature; on the other hand, the failure to the provisions of ihl protecting food security may give rise to individual criminal responsibility under the statute of the international criminal court. in accordance with the jurisprudence of the international court of justice, we understand that if food security is protected during armed conflict, a fortiori, it must also be protected in times of peace. therefore, it is possible to argue that ihl provisions protecting food security and the right to food reinforce the protection afforded on these issues by international human rights law. references alston, p. 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(2008). “do poverty and poor health and nutrition increase the risk of armed conflict onset?”, food policy, 33(6), pp. 514-520. https://doi.org/10.1016/j.foodpol.2008.05.003 ramón chornet, c. (2005). “demasiado tarde para la población civil. el cometido del derecho internacional humanitario”, in gutiérrez espada, c. (coord.), caflisch, l. adriana fillol mazo the age of human rights journal, 14 (june 2020) pp. 181-209 issn: 2340-9592 doi: 10.17561/tahrj.v14.5483 209 (coord.), bermejo garcía, r., (coord.), díez-hochleitner rodríguez, j. (coord.), el derecho internacional: normas, hechos y valores. liber amicorum josé antonio pastor ridruejo, servicio de publicaciones de la universidad complutense de madrid, madrid, pp.287-299. rodríguez de taborda, c. (2013). “el impacto de los conflictos armados en la seguridad alimentaria”, recordip, vol. 1, nº 2, p.2. than, c., shorts, e. (2003). international criminal law and human rights, 1st ed., london: sweet& maxwell, p.90. un doc. s/res/770 (1992), of 13 de august 1992, p. 1. un doc. s/res/787 (1992), november 16, para.7. un doc., a/56/210, 23 july 2001, note by the secretary-general **, preliminary report of the special rapporteur of the commission on human rights on the right to food, jean ziegler, para. 46. un doc. resolution 2625 (xxv), october 24, 1970, declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the united nations, p.6. un doc. s/res/764 (1992) of 13 de july 1992, para. 10. un doc. s/res/794 (1992), of 3 december 1992, paragraphs 8 and 10. un doc. s/res/2417 (2018), 24 may 2018, para.5 and para.6. un. doc. economic and social council, e /cn.4/ 2001/53, 7 february 2001, para. 74. world peace foundation (2019). “the crime of starvation and methods of prosecution and accountability”, policy paper #1, global rights compliance (grc) and the world peace foundation (wpf), netherlands. ziegler, j. et al. (2011). “the right to food in situations of armed conflict”, in ziegler, j., golay, c., mahon, c., way, s.a. (coords.), the fight for the right to food, palgrave macmillan, london, pp. 101-102. https://doi.org/10.1057/9780230299337_5 received: february 6th 2020 accepted: april 12th 2020 the protection of access to food for civilians under international humanitarian law: acts constituting war crimes abstract keywords summary 1. the impact of armed conflict on the right to food 2. the rules of international humanitarian law that protect access to food for the civilian population during the development of the armed conflict 2.1. prohibition of starvation of civilians as a method of warfare 2.2. prohibition of attacking, destroying, removing or rendering useless indispensable goods to the survival of civilian population 3. a ssistance to protected persons in the context of international and non-international armed conflict 4. criminalization of serious violations of the rules of international humanitarian law protecting access to food by the civilian population 4.1. acts constituting war crimes 5. conclusions references ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 1 ethics and robotics. a first approach 1 . rafael de asís roig 2 abstract: clearly, technical and scientific progress and moral progress do not necessarily go hand in hand. therefore, this article encourages reflection on the new ethical challenges posed by such developments and, in particular, by robotics, a field that has developed greatly in recent decades and that has led to possibilities unimaginable until recently. thus, the author examines here the so-called roboethics, its content, the specific fields it addresses –such as social relations and moral agency of robots–, as well as the different approaches and views on these issues. keywords: ethics, robotics, moral agent, human rights contents: i. introduction; ii. robotics; iii. roboethics. i. introduction in the 20 th and 21 st centuries there have been major advances in both the scientific and technical field. the first one has been named the science century. in this regard, it has been claimed that the first half of the 20 th century focused on physics whilst the second half on biology, genetics and computer science (rifkin 1998: p. 20). as for the 21 st century until now is characterised by the rise of neuroscience and nanotechnology as well as by advances in the field of robotics (in connection with the other areas but especially to i.t). however, despite all these advances, poverty, hunger and dissatisfaction regarding rights still persist. it is not surprising that th. pogge commences his book world poverty and human rights examining how it is possible that extreme poverty affects half of humanity despite the enormous economic and technological progress, and how it is possible that the distribution of scientific and technological benefits is so uneven (pogge 2002). 1 i appreciate the comments and suggestions of f. javier ansuátegui, jose manuel molina lópez, maria del carmen barranco and miguel ángel ramiro. 2 professor of philosophy of law. instituto de derechos humanos “bartolomé de las casas”, universidad carlos iii de madrid, spain (rarfid@inst.uc3m.es). ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 2 moreover, in the last century, the most important advances in scientific and technical knowledge have been accompanied by atrocities to human beings, which has served to demonstrate that scientific and technological progress and moral progress do not necessarily go hand in hand. indeed, the experiments carried out by the nazis in concentration camps and other barbarities that have taken place in other countries, e.g. the united states (beecher 1966: p. 1354), prompted in the years after the second world war the idea that scientific progress of humanity requires moral progress was called into question giving rise to what some have referred to as "normative reaction" (iacono 2006: p. 173). regarding this situation, it is possible to adopt two possible positions: indifference and engagement. the indifference implies allowing technology and science to progress without establishing a framework or a direction; engagement, by contrast, implies a reflection on that framework. obviously, i shall opt to follow this second path because, among other reasons, whoever adopts the stance of indifference should be aware of the fact that there shall always be someone who sets the direction of all these developments (sassen 1998: p. 177). from the engagement perspective it is possible, by contrast, to suggest several ways in which this framework may be established: ethics (through self-control or the definition of universal ethical criteria) or law. they are not exclusive of one another but rather complementary, one needs the other. in this sense, it is necessary to reflect on the new ethical challenges posed by such developments, especially if we take into consideration that the time period between research and the final product is being reduced. in fact, this discussion has been raised under the name of "technoethics " or "nest-ethics" -ethics of new and emerging science and technology(swierstra and rip 2007: p. 3). currently, the term emerging technologies (also referred to as converging) is employed to refer to the combination of transformational technologies such as nanoscience and nanotechnology, biomedicine and genetic engineering, information technology and cognitive science. the convergence of these technologies presents undoubtedly major challenges, some of which are common to all. i would rather use the term emerging technologies instead of "biotechnology" which is more widespread precisely because of the uniqueness that robotic represents in this reflection. as is known, there is no consensus on the meaning of the term "biotechnology". but even in its broadest sense, it is used to refer to the application of science and technology to living organisms, and in this sense, it can not be used to account for all the ethical problems that robotics may pose. thus, in this article, i shall focus particularly on the projection of ethics in robotics. this is a first approach aimed at introducing the debate and raising some of the issues encountered in this field. rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 3 ii. robotics robotics is the science and technology of robots. it is a combination of many scientific disciplines and its fields of application are increasingly expanding. although it has often been cited that the beginning of robotics was the invention of a textile machine programmable by punched cards, the first time the term “robot” was employed was in 1920 in a czech theatre play. the term robotics is attributed to isaac asimov who in the late 30s created the laws of robotics. currently, there are over one million robots in the world that serve different functions and are found in hospitals, factories and in our homes. they are increasingly intelligent machines that may be able to capture feelings and in the future, it is believed that they may be equipped with self-consciousness (brooks 2003). in addition to traditional industrial robots (machines designed for the manufacturing of cars, painting and handling) at present, robots are replacing human organs, prosthesis have been created that perform human functions or increase capabilities. there are robots offering services; machines that handle specific tasks, are able to move independently with a flexible behaviour and with a decision-making capability far superior to the rest. some of them can have a conversation and perform facial movements, others are capable of complex reasoning being able to discriminate between options and be proportionate (as those used in the military for combat or surveillance). the combination of robotics and other scientific fields, especially with neuroscience and nanotechnology has led to possibilities that until recently were only imaginable. a brain-computer interface has been developed (bci, brain-computer interface) based on real time electroencephalography for the classification of images presented using a visual display in series. the so-called nanorobots have been created, robots that are smaller in size than red blood cells and can be used to fight diseases -it is thought that they may be operational by 2020(freitas 2005: p. 55). in 2013, the company boston dynamics introduced an android-shaped cat that can run at a speed of 50 kilometres per hour. the company robotic technology announced, recently, that they have created a robot that is able to "feed itself" extracting energy from organic matter found nearby (including animal and plant tissues). robotic pets have been created (robo-pets) used to treat sick children and for people with mental illness that have proven to be effective in the recuperation phase. robots designed to care for the elderly, people in situations of dependency and people with diseases are being developed. furthermore, there is the possibility that "sexbots" (sex robots) will be able to engage in a personal love relationship (levy 2008). there are more than one hundred android projects in the world, many of which are in japan. ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 4 important questions arise in the field of robotics, some of which are difficult to answer. are there any warranties regarding their use? are there rules governing their behaviour? which are they? are there any criteria regarding their destruction? would it be possible to talk about the rights of robots? who are the people responsible for their behaviour? would it make sense to have human contact replaced by robots? should robotics be used for military purposes? what is the degree of autonomy that we would like a robot to have? what are the situations in which it would be justified that a robot does not respect human will? would there be a justification for creating slave robots? how do robots affect the environment? should we create human-looking robots? how will robots interact with less intelligent humans around them? (veruggio 2007). since its inception, robotics has given rise to ethical issues of undoubted relevance. according to d. cerqui within the robotics community there are three positions regarding ethics: firstly, there are those who are not interested in this matter as they believe that it is a technology and, therefore, it is not a subject for ethics; secondly, there are those who are interested in the projection of ethics in robotics but from a conventional and uncritical ethical perspective (i.e., ethics that assume universal principles and objectives considered timeless); thirdly, there are those who adopt a comprehensive and critical approach (veruggio and operto 2006: p. 2). these last two perspectives have led to a new projection of ethics which has been coined roboethics (capurro and nagenborg 2009). iii. roboethics the term roboethics was officially proposed at the first international symposium on roboethics (san remo, january-february 2004). at this meeting, a call was made to philosophers, jurists, sociologists, anthropologists and robotic scientists, to contribute to lay the foundations of ethics in the design, development and use of robots. that same year, at the international robot fair in fukuoka (japan), the participants (scientists and representatives of the japanese robotics industry) signed the world robot declaration, the robotic version of the hippocratic oath which states that “the next generation robots will be partners that co-exist with human beings. they will assist human beings both physically and psychologically; they will contribute to the realisation of a safe and peaceful society. in order for society to accept and welcome robots, it is necessary to define and implement certain standards, modify living and working environments and public institutions must promote the introduction of robots”. roboethics refers to the set of criteria or theories that purport to address all of these ethical issues posed by the development and use of robots and that are projected on the manufacturers and users and even on the robots themselves. in principle, it is the ethics of those who create and use robots although it is starting to adopt a broader view that includes the robots themselves. in this sense, it is a new thought with a clear focus but that may be developed from different perspectives (on the main opinions regarding roboethics, veruggio and operto 2006). rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 5 one of the features that characterises roboethics is the fact that it is a reflection focused on the future and that, on many occasions, it addresses events and situations that may arise but not necessarily and this being one of the criticism levelled at this type of study. iii.1.singularity the so-called emerging technologies share common ethical problems. it is worth highlighting four major issues involving each and every one of them and that we may identify as: equality and non-discrimination, autonomy, responsibility and privacy/intimacy. the issue of equality and non-discrimination has two different but closely related perspectives. the first relates to safeguards to ensure universal access to new technologies (in this sense the reflection on the scope of patents acquires a special significance) whilst the second draws attention to the possibility that the use of new technologies may serve to increase power, capacity and welfare differences among human beings. it is well known that autonomy is one of the main reference points in modern ethics. it is a principle that, in this context, has two projections. on the one hand one that refers to the freedom of research or science, on the other, the possibility of decision-making with the consent of moral agents. in the development and application of each of the technologies described we may find situations where this principle is involved. as is the case with autonomy, responsibility is also another reference point for ethics and in relation to converging technologies it can be projected onto any moral person involved (scientific, technical, professional, entrepreneur, user etc.). thus, problems in relation to responsibility are found in each of the previously mentioned technologies. similarly privacy/intimacy may clearly be affected by the use of information technology but also, clearly, by genetics. the latter, genetics, outlines a fourth type of questions that i shall refer to with the terms of integrity/human identity and allude to the proper consideration of the human and moral aspects. moreover, these issues are equally present in neuroscience and robotics. however, robotics raises two other issues that are not directly on the agenda of problems of other technologies and i shall refer to them as the point of social relations and the moral agency of machines (or robots). indeed, as we have had the opportunity to observe, some of the questions that arose in relation to robotics were linked to potential problems resulting from the relationship between human beings and machines. ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 6 additionally, there have also been issues in regards to the treatment the robot received and the role it plays in the ethical discussion. robotics shares the first five main issues (equality and non-discrimination, autonomy, responsibility, privacy/intimacy, integrity/identity) with other emerging technologies, but what characterises robotics are precisely the last two (social relationships and the moral agency of robots). iii.2. reference framework in 1942, in a short story entitled runaround, asimov devised three rules that have been considered as the first rules of robotics: 1 a robot may not injure a human being either directly or through its intervention. 2 a robot must obey the orders given to it by human beings, except where such orders would conflict with the first law. 3 a robot must protect its own existence as long as such protection does not conflict with the first or second law. later, asimov himself added a new law: a robot may not injure humanity or, through inaction, allow humanity to come to harm. advances in this field together with those made in other disciplines that make up what has been called converging technologies render these rules insufficient. thus, in 2011, in the uk, the engineering and physical sciences research council and the arts and humanities research council have raised the following five principles (available at http://www.epsrc.ac.uk/research/ourportfolio/themes/engineering/activities/pages/princi plesofrobotics.aspx consulted on the 25th august 2013): 1.robots are multi-use tools. robots should not be designed solely or primarily to kill or harm humans, except in the interests of national security. 2.humans, not robots, are responsible agents. robots should be designed; operated as far as is practicable to comply with existing laws & fundamental rights & freedoms, including privacy. 3.robots are products. they should be designed using processes which assure their safety and security. 4.robots are manufactured artefacts. they should not be designed in a deceptive way to exploit vulnerable users; instead their machine nature should be transparent. 5.the person with legal responsibility for a robot should be attributed. when comparing the asimov laws with these principles, significant differences may be established. rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 7 in any event, the need for a legal regulation of robotics is evident, albeit there is no unanimous position as to how it should be. a serious and rigorous reflection is imperative in order to provide guidelines to solve the issues associated with the development of this technology. there are issues that may be addressed conventionally but others present us with new scenarios that require a broad ethical debate. unquestionably, we have some policy guidelines that emerged in the field in which most progress has been made: bioethics. however, not all of these rules may be applied to robotics and, more importantly, it is necessary to ascertain if the rules framework on bioethics (which is represented by the theory of human rights) is the one we would have to use in this area. iii.2.1. ethical framework thus, the first point of this debate would be to clarify what should be the ethical framework to meet the challenges posed by robotics and, in regards to this aspect, at least four possibilities become apparent. two of them allude to human rights but differ in their attitude towards emerging technologies. for some, that i shall group under the term "bioconservative", it constitutes a real threat, as for the second group, which i shall refer to as "new humanists”, they believe it is an opportunity as long as it follows a certain direction. the other two positions depart from the theory of rights to certain extent. these are the neuro-determinists and transhumanists. iii.2.1.1. bioconservatives admittedly, it is not possible to refer to "bioconservatives" as a homogeneous and univocal current. this is a group of thinkers who share the idea of the need to reflect on the serious ethical, legal and political risks that biotechnology may give rise to; a reflection that must have at its core the maintenance of human identity and dignity, namely, the preservation of what makes us human (kass 1985: p. 25). the position of bioconservatives is based on the possible damage that technological progress and, above all, some proposals regarding its implementation, could cause to humanity and the environment. from their perspective, what is considered good may not be defined in terms of the manipulation of life as this is always negative (rifkin 1983: p. 230). they oppose the use of technology to modify human nature as they feel that this shall undermine our dignity (fukuyama 2002: p. 149). they seek to preserve the individual attributes that define human beings, conserve the human species and respect what would be its natural evolution. conducting unnatural scientific achievements designed to optimise people (such as the creation of persons with extraordinary abilities) shall lead to catastrophic consequences according to bioconservatives. human nature represented by a series of traits that make us members of a species is what provides us with a moral sense and ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 8 should not be altered. that alleged optimisation involves the loss of these ethical traits and irreparably damages some of the basic moral notions such as responsibility and freedom. therefore, to expect a world in which human limitations do not exist leads to a loss of sense of life. moreover, these objectives shall result in a widening gap between rich and poor (see in this regard and referring to genetics, silver 1997). additionally, bioconservatives believe that it is reasonable to reject the creation of post-human entities as there is no evidence that they are able to share our values and our cultures (agar 2010). therefore, it is necessary to give up certain technologies (mckibben 2003) and, in any case, to adopt the precautionary principle. as j. rifkin pointed out, it is not necessary to pretend to dominate or manipulate nature but rather become part of it with other living beings (rifkin 1983: p. 252). humans today have no right to change the future or predetermine how people of tomorrow shall be. we have no right to play god (ramsey 1970: p. 138). iii.2.1.2. neurodeterminists meanwhile, the neurodeterminism is an approach that equates morality to biology. thus, it is argued that our ethical structure has a biological component that makes us unique compared to other living beings. unquestionably, this is not a new approach. since darwin, many philosophers and scientists have sought to justify the ethics in the evolution process. what currently distinguishes these positions is their support for neuroscience. in any event, within neurodeterminism we find different opinions. some of them defend the idea that humans are the product of evolution as are other animals or plants, being the "self" an accumulation of neural internal resources (harris 2011). some neuroethics reject free will and autonomy and consider the “self” as a state of the brain. accordingly, they have come to propose a new ethic, a new philosophy of life based on brain data; a morality that originates from brain biology (churchland 2011) 3 . however, other neuroethics consider that social behaviour is not solely a biological issue. thus, m. gazzaniga argues that we are not completely determined by physical processes. free will and the sense of responsibility do not arise only from a cerebral hemisphere but also from social interaction and community life. according to this author, the sense of responsibility does not rely on the brain as we own our actions. 3 according to churchland, consciousness is the result of different phenomena, many of which are neurobiological. rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 9 values are built on cultural contexts. hence, we are very different to other animals even though we share chemical components, physiological reactions and, in some cases, similar mental structures (gazzaniga 2012 and 2008). iii.2.1.3. transhumanism transhumanism is a philosophy that aims to use technology to improve people’s lives, increase intelligence and make human beings happier and more virtuous. the potential improvement of humans is based on technology. for transhumanism the end of mankind is inevitable if the developments of science and technology are not embraced, obtaining instruments and apparatus that allow fighting against this outcome. this development shall create unlimited unique machines that could merge with humans. it is a movement that covers different currents (bostrom 2011: p. 157) and has been considered by some as dangerous for violating the human essence. some transhumanists positions are opposed to humanist ethics, although it may be advisable to consider them as part of post-humanism. but many advocates of this trend apply modern re-interpretations of principles or values and are presented as a logical step in humanism before scientific and technological changes (jotterand 2010: p. 617). for example, the so-called democratic transhumanism attempts to combine the values of the enlightenment. it is an approach that advocates that humans will be happier when they take rational control of the natural and social forces that control their lives (hughes 2002). other transhumanist approaches are presented as an evolution of humanism and their main purpose is to prolong to a maximum a healthy living (bostrom 2003). thus, they refer to human dignity whilst understanding that it is an idea that evolves and progresses. therefore, it is necessary to identify a concept of human dignity that could be applicable to post-human beings. transhumanists argue that we may reform ourselves and our nature legitimately in accordance with human values and personal aspirations. transhumanism, representing the progress of robotics without limits, has been accused of being a source of serious ethical conflicts: (i) assisting in the construction of a society composed of first-class individuals (who can access the new technology) and second-class (who do not have access to new technology and shall, logically, be dominated by first-class individuals) and in which social competitiveness and diversity have been eliminated (as efforts and diversity have been replaced by machines), (ii) altering the identity of people and violating their privacy, (iii) provoking from a global perspective the extermination of other races and cultures and the subjugation of other peoples (iv) taking over an alleged right to make decisions that may compromise the ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 10 future, (v) turning a blind eye to the problems in relation to the political, military or economic use of science. these are allegations that have been answered by transhumanism. for example, the accusation of leading to first and second-class individuals has been contested by stating that this would not necessarily happen and, moreover, is not new (human society has always lived with this danger as there are groups seeking to enslave others). regarding the criticism that this way of applying technology causes inequality is rejected by stating that it is not necessarily so and that on occasions it might be the opposite (sex change, an example which is equally used to account for how today's society does not accept diversity). in relation to the statement of possible harm to our descendants, they defend themselves by stating that it is based on a very questionable assumption –that our descendants will be technologically helpless or unsophisticated (bostrom 2005: pp. 202-214). in conclusion, transhumanism rejects the view of nature as something constant and unchanging and argues that the moral value of human beings does not exist because they belong to a species but because of what humans do. therefore, technological advances should be used for the moral improvement of humankind (persson y savulescu 2010: p. 656). this is an improvement that will not produce negative effects since it aims to improve the moral behaviour of people so it could hardly be thought that it is a moral evil (persson 2012: pp. 692-693). iii.2.1.4. an open humanism from the human rights perspective although transhumanism presents aspects to be considered, i do not find it convincing in general terms as it ignores very relevant issues resulting from the application of enhancement techniques (according to t. peters, peters 2011, transhumanists are naive about human nature and are overestimating what can be achieved through technological innovation). nor am i convinced by neurodeterminism as i do not believe that the mind is solely a physical-chemical issue or that it possible to equate morality to biological, chemical or physical conditions (cortina 2011: p. 72). from a phenomenological point of view, free will is not attributable to a single state of mind but rather to the person as a whole. our brain is modified with the decisions we make. the self is not something that is found in an isolated place but is rather the continuous movement that transcends into the world and others. as pointed out by a. cortina, "in the same way that there are psychological and social foundations of morality, there are also brain foundations and this does not imply that they form the basis of the moral life" (cortina 2011: p. 46). the arguments employed by those that i have named bioconservatives i believe may serve as areas of concern when setting criteria and standards regarding the use and scope of these technologies as we cannot restrict technological progress. rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 11 consequently, there are aspects of the three positions discussed that must be taken into consideration. in regards to bioconservatism i believe that it is necessary to refer to arguments focused on humanistic ethics and therefore, it is based on the value of human beings and the importance of a dignified human life. it is a public ethic that assumes among its first principles the categorical imperative that h. jonas considered as characteristic of the 21st century: "act in such a manner that the effects of your actions are compatible with the permanence of genuine human life on earth" (jonas 1984: p. 38). in light of the above, in order to assess what is right or wrong regarding this issue, i find it necessary to refer to the theory of human rights as it is the main ethical and legal reference of the contemporary world. it is important to note that focusing on human rights does not imply stating that the ethical problems have already been solved. given that there are different ways of conceiving rights, different theories of rights, having rights as a basis allows us, on the one hand, to adopt a critical and non-conformist stance, on the other, to put themselves in someone else's position and adopt the viewpoint of the weak (the one who has no strength or power) and, finally, a set of criteria that define what may be justified and what may not. there are, in any case, criteria which become more precise in relation to specific problems, and are governed by the relevance of the human being and dignity. adopting the rights perspective provides us with a starting point but also imposes limits regarding the possible conclusions; limits that are linked to the protection of the autonomy and satisfaction of human needs. however, the point of view of the rights that i consider appropriate requires the openness of up to five dimensions which i shall refer to as: openness towards progress, openness towards society, openness towards future generations, openness towards possibilities and diversity and openness towards disability. the debate dominated by a theory of human rights must be open to technological and scientific progress which means that the neurodeterminists or transhumanists thesis should be totally rejected. the theory of rights should not reject the advances in technology and its use for the improvement of human life, although this requires us to clarify anthropocentrism and replace it with an egocentric and biocentric view that encompasses respect for life and the human being as a whole. in this sense, riechmann calls for a deepening of the enlightenment thought, and an enlightenment of the enlightenment that seeks to find peace between humans and the non-human nature (mosterín and riechmann 1995: pp. 131-132). it must also examine the relevance and ethical role of what has been built and manufactured by human beings and their impact on society and other people. this ethical framework should, moreover, focus on our social dimension, be aware of the importance of interpersonal relationships for the achievement of a dignified human life, thus establishing an ethics that takes into consideration others. the human ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 12 being is linked to the activity of others and therefore the latter plays an essential role. we are part of a culture and a society that transforms us. the brain itself is capable of absorbing and applying the lessons to be drawn from what is around us (mostly other human beings). it is equally necessary that this theory of rights focuses on future generations placing emphasis on responsibility and foresight, within a responsibility directed towards the future that allows us to progress with caution. the ethical framework which governs the rights theory in this field must also be critical regarding the idea of human dignity in the manner it has been created and specified from modernity and enlightenment. an idea of human dignity based on a conception of human beings and society that, in a sense, are at the origin of the search for machines and devices that achieve perfection. the human model of the enlightenment was supported by some patterns based on perfection and a social model that, at times, imposed an exclusive lifestyle. human dignity has been built highlighting what we might conceive as an abstract dimension of the person, leaving aside the contextual or location dimension. it has been built based on patterns of "normality" that historically have coincided with those of the powerful (barranco 2011: pp. 94-95). thus, we must eliminate certain ideal models we project on the concept of human dignity that make the situation in which some people are found unworthy and different. equally, we must value human diversity and consider it as one of the great wealth of our societies. finally, this ethical framework should be open and address the issue of disability. this is a question that presents itself as one of the main areas of concern when we face the challenges of emerging technologies. therefore, it is important to remain vigilant to the evolution of this reflection and the role that disability plays (romañach 2009). many of the technological advances that are occurring in the field of robotics (and generally, in the emerging technologies) are using as a reference a human being model that may be perceived as exclusive and a source of discrimination. this is an image that aims to be associated with perfection and that conveys, or may potentially convey, the idea that as we move away from this image, life has less meaning or happiness is more elusive. from this viewpoint, disability appears as an example of imperfection, as a situation of suffering, and at best, as a natural disadvantage that must be eliminated. this idea is particularly evident when the question of improvement interventions is addressed and even also in therapeutic interventions. it should not come as a surprise the statement of the disabled peoples' international (“disabled people talk about the new genetics”) which states: “we want to make clear that people with disabilities are not opposed to a medical research whose purpose is a genuine treatment or pain relief. we are against the genetic cleansing driven by profit reasons and social efficiency based rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 13 on prejudice against persons with disabilities and carried out in the name of cure or treatment.” the acceptance of improvement interventions (or even therapeutic) applied to a disabled person may be viewed as an underestimation of these people with disabilities. however, impairment is often the result of a situation and not a feature of individuals (de asís 2013). this is also a manifestation of human diversity and like other manifestations it may be perceived by the individual as something unsatisfactory or satisfactory. additionally, beyond the disability, we must be aware of the fact that, in many cases, we seek the best for our children and we do so intervening dramatically in what could be described as environmental factors (measures designed to help children develop skills in relation to nutrition, training and physical exercise) but yet we question interventions on other factors (such as genetic factors for example). therefore, in order to eliminate the concern regarding the world of disability, a change in society is necessary, eradicating discrimination emanating from it in relation to persons with disabilities. and from there, the question of the improvements shall not be part of a special debate in regards to people with disabilities but rather the general discourse in which the freedom of the improvements is justified as they are available to everyone and when there is no impact on the rights of human beings. iii.2.2. the legal framework the various questions that have raised highlight the need to consider a controversial principle in the field of scientific research: the precautionary principle. this is a principle that supports the adoption of protective measures for certain products or technologies that are believed to create a serious risk but there is no scientific proof (on the precautionary principle sunstein 2005) 4 . however, with this principle, it is necessary to include another one to complement and clarify it, as is the freedom of research (which functions as a right). under this principle humans must decide how far they wish to go with their research, but it must respect certain principles and serve a purpose that is consistent with the ethical framework referred to above. in order to determine these principles and purposes we may build on existing standards on bioethics, namely, the international declarations and agreements on bioethic and biodiversity. it is a regulatory framework that is developed in line with the theory of human rights and is considered a reference point in regards to the treatment of robotics. however, there are two aspects that make the discourse unique and are 4 the precautionary principle appears in the international arena in the united nations conference on environment held in stockholm in 1972. in the rio declaration on environment and development in 1992 it is defined as: “where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for post-poning cost-effective measures to prevent environmental degradation”. ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 14 associated to (i) the relationship that may be established between humans and machines and (ii) the moral agency of these humans and machines. this calls for a re-reading some of these rules that must also take into consideration the different types of robots. iii.3. the roboethics content the inclusion of robotics in the ethical discourse entails taking into consideration the existence of different types of robots and establishing their role within this line of thought. there are different classifications of robots and machines 5 . if the focus were to analyse its projection on ethics, a good classification would be to distinguish between dependent and independent machines. the first are those that require a human being in order to perform its functions; the latter are those that do not need one (at least on a general basis). indeed, the existence of fully autonomous robots is still an illusion. however, this distinction allows us to identify problems by highlighting two of the main principles of ethics: autonomy and responsibility. another interesting perspective involves the use of classification criteria based on the robot's interaction with humans and their rights, that is, criteria that takes into consideration the possible ethical issues raised by the type of robot. in this line of thought we may differentiate three types of robots (all of which are closely related): (i) robots that carry out a task or provide a service that may pose an ethical problem due to the type of service or relationship with humans; (ii) robots that provide a service that poses an ethical problem either because they cause harm to third parties, the possible harm to the individual or the possible harm to society, (iv) robots that have moral agency problems. among the first classification it is possible to distinguish three groups. on the one hand, there are the industrial manipulator robots and their main ethical problem lies in its effect on the labour market. on the other, there are those robots that provide a service that raises ethical issues in society such as the so-called sexbots (sex robots). finally, there are those that perform a function that has an impact on human care (caregivers or assistance robots). among the second classification it is also possible to establish three groups. firstly, those whose ethical questioning occurs because they cause harm to third parties (military drones). secondly, those whose ethical questioning arises because it is stated that it may result in an injury to the individual, either to their physical or moral integrity or their identity (prosthesis robots or robots that stimulate the brain). finally, there would be the robots whose ethical problem lies in the possible damage they could inflict in the present or future society (this group could include some of the types of robots that 5 john p. sullins (sullins 2006: pp. 25-26) makes a distinction between telerobots (operator dependent) and autonomous robots (not dependent). on robot generations and future possibilities (moravec 1993 and 2003). rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 15 i have mentioned in previous groups, although we could also allude to the so-called nanorobots). the robots i have referred to as those that pose moral agency are the ones for which it may not be clear who is responsible for their actions and their moral status. these robots are considered by some as moral agents or persons, similar to humans. 6 . within this group, there are the robots that learn, reason in a relatively independent manner, are self-powered and are able to externalise feelings (learning, reasoning, eating, o sentimental robots). regarding the role of robots in the ethical debate, very briefly, this role may be the moral object or the moral agent (on the robot’s moral status, bostrom y yudkowsky 2011). within the scope of the rights theory, the features that a being should possess have been discussed (and are still subject to debate). the moral role (subject or object) of children, the disabled, etc. is under discussion. in relation to robotics, the aim is to investigate and decide the ethical role of machines and robots. obviously, if they are considered as an agent this may require the possession of a number of features (defining human beings) or, quite simply, a decision of humans themselves. i shall leave this issue for the section regarding the treatment of robots. although the above classifications may be further specified, they provide an early glimpse regarding the main ethical problems that arise within the roboethics context. it is possible to highlight the following ten issues: (i) the impact on the labour market with the consequent loss of jobs, (ii) the physical and moral integrity of people (particularly the intervention in the rights of others), (iii) the physical human identity (the issue of prosthesis), psychological (possible dependence on the robot) or social (social isolation and neglect of social duties), (iv) cultural and biological diversity (social uniformity and contamination), (v) privacy/intimacy (treatment and modification of personal data), (vi) equality and non-discrimination (equal opportunity of access to knowledge and discrimination, focusing particularly on vulnerable groups, (vii) property (patents regulation), (viii) liability and security regarding deception, defect or manipulation, (ix) identification and registry of robots, (x) agency or moral role of the robot. this catalogue may be structured in different manners. thus, p.m. asaro has addressed three major issues regarding roboethics: embedded systems in robots, the people who design and use robots, and how persons treat robots (asaro 2006: p. 9). additionally, bostrom and yudkowsky refer to two major issues: (i) the role of robots in the ethics of human beings, (ii) the moral status of the robots (bostrom y yudkowsky 2011). i shall adopt this distinction in general terms distinguishing between the uses and limits of robotics and the manner in which robots are treated. 6 reflections on the issue of whether computers are able to think and their similarity to humans started very soon (inter alia mays 1951: p. 249; von neuman 1951; bunge 1956: p. 139). ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 16 practically, the first nine problems mentioned above belong to the first of the areas of concern, whilst the latter would correspond to what i refer to as treatment towards robots. in principle, as previously noted, the singular field of roboethics would be the second one, since the first one alludes to concerns that are present in other technological fields. however, in the first case, the roboethics also presents a singularity arising from the relationship between humans and machines (even though it is difficult to conceive that there may be relationships between humans and robots similar to those that occur between humans, this is something that may not be ruled out completely). iii.3.1. the purposes of robotics the examination of these issues is influenced by the purpose we attribute to robotics. as i noted above, in order to do so we may build on the standards on bioethics and biodiversity. three general and programmatic statements would be derived from these: 1 . scientific and technological progress should serve the welfare of humanity, the sustainable development of all countries, world peace and the protection and preservation of nature. 2 human welfare and its interests prevail over the sole interest of society or science, it involves the promotion of respect for human dignity and the protection of human rights (among which are life and moral integrity, privacy, free consent, the choice of a way of life, work, etc.). 3 respect for human dignity implies respect for human diversity, the environment, the biosphere and biodiversity (forcing the sustainable use of its components and the fair and equitable sharing of benefits arising from the use of resources). but there is an issue that affects our entire discussion that governs roboethics and that may be expressed through the following two questions: why do we want robots? what types of robots do we want? the answer to these two questions determines the content of this reflection. two complex questions that lead us to major ethical problems. in any event, even if only minimally, it is possible to make some progress in regards to finding an answer. i think we may all agree that we want robots to help humans and their environment. therefore, we look for robots that provide services to us and may correct unintended diversities or diseases. achieving this type of machine may have a clear justification as long as human diversity and biodiversity are respected and if they mainly have a therapeutic reasoning. another justification would be if they are improvement techniques 7 , being mindful of the fact that the concept of improvement is in itself problematic. 7 for example, it has been argued that supporting human efforts may weaken our sense of responsibility and undermine our will to solve problems in life (fuchs 2006: p. 600) rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 17 nevertheless, we are not looking for robots to replace us nor, in that sense, to behave and become human-like. indeed, the latter may even be discussed 8 , albeit it requires us to consider what we believe to be human. this is an issue that may be resolved from different angles, all of which are problematic and may even be modified in line with technological advances. in the field of human sciences it is normally addressed in accordance with a conception of human beings constructed from ethical and aesthetic references. the first would be the ethical based on four main principles: the ability, autonomy, independence and responsibility. the second, aesthetic, based on a defining form or shape of humans (which has its most grotesque manifestations in the references found in some legal orders alluding to the requirement of having a "human figure" to be considered a person 9 ). determining the idea of human being based on a pattern of capacity that differs from diversity and allegedly universal and abstract, may lead to explicitly set aside the consideration of a person to certain humans, or to adopt a vision of a person which is exclusively biological. thus, for some people, the concept of a person is based on the possibility of being aware of the future and to have desires in relation to it. equally, it may be stated "we are human to the extent that we descended from humans." in a sense, the consideration of the human, as a category, is a concept humans must determine and must be done so within the ethical framework to which i referred to earlier, thus adopting an open and plural view that respects diversity and focuses on nature. in any event, the concept of what is considered as human also involves a number of circumstances, traits and characters that are part of our identity such as death, dependency, pain, suffering, efforts, imperfections, limitations, etc. traits that most probably we do not wish to see replicated in a robot, but that are, in many cases, the most obvious expression of human diversity and freedom. therefore, we would not be producing something human but superhuman, whereupon the question of “what for?” becomes increasingly relevant. furthermore, the construction of a machine identical to a human being is not only unjustified for certain types of robots 10 , and in addition to the fact that their purpose and their consequences are not clear, it may be argued that it is something that is against the current bioethical rules as, for example, the prohibition on human cloning. this argument may be applied to prosthetics and neuroprosthetics that might be related to the prohibition of organ trade, a prohibition that is under discussion today (as it is considered as common in certain fields). certainly, regarding this point, the reflection on the human integrity and identity becomes increasingly important. 8 the issue has been addressed in the field of bioethics (rifkin, j. and howard, t. 1977). 9 vid. for example article 30 of the spanish civil code that considered born the fetus in human form able to live detached from the mother for 24 hours. article amended by final provision three of law 20/2011 of 21 july. 10 for example, many service robots would lose some of their benefits if they had emotions. ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 18 iii.3.2. use and limits of robotics the issue regarding the use and the limits of robotics may be considered traditional in the field of ethics as it relates to the limits of scientific research and the responsibility of the agents and users of technology. these are problems related to the autonomy and responsibility and for which, as mentioned previously, there are positive parameters: the normative texts on bioethics. however, as was also noted earlier, there is a new dimension in this field that is represented by the social and relational projection of the robot. traditionally, a series of principles that should guide the theoretical and applied research are highlighted: proportionality and weighting (risk and benefit assessment), rigour and prudence, equality in access to information and transparency, plural and wide debate and the demand for scientific training and qualification of scientists and technologists. beyond these principles, the analysis of the issues regarding roboethics is mainly casuistic and depends on the type of robots. in accordance with the types described above, it is possible to highlight the following four major problems: firstly, the issue regarding responsibility. in relation to this point it is possible to distinguish three possible agents of responsibility: the creator (the scientist or technologist), the merchant and the user. all of them, in some cases clearly and in others in not such a distinct manner, are either directly or indirectly liable. there are four aspects on which responsibility is projected: purpose, deceit, defect or manipulation. such responsibility must have both a current and future projection, must be assessed and adapted according to the type of robot. secondly, the possible alteration of the human identity, either in physical, psychological or social terms. the first two cases may occur in connection with machines or robots that function as prosthesis but it is also possible to include herein assistant or caregiver robots with which situations of dependency may occur (in addition to the implications of having machines intervening in a typically human relationship) or sexbots. the substitution of people in the care of children or the elderly results not only in security issues and responsibility for the behaviour of the robot but, more importantly, it may mean a possible social isolation or a change in the understanding of social relations along with the questionable abandonment of behaviours and obligations that have traditionally identified us (sharkey 2008: pp. 1800-1801) 11 . thirdly, the possible alteration of cultural and biological diversity and, thus, also the environment. situations that may arise with nanobots or as result of the deposit of waste or machines that no longer work. additionally, it is worth highlighting the 11 the need for the robot to look human as much as possible has been defended so that the human-robot relationship is similar to that of human-human (arkin, ulam y wagner 2012). rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 19 uniformity of the robots and the disappearance of traits that have characterised some people. fourthly, the possible performance of acts contrary to rights. the typical example would be that of military drones that demonstrate the possibility that these machines may be manufactured to kill humans (on the importance of the robots used in war to act respecting ethical rules, arkin 2009). sexbots may be included in this group and their use for prostitution, although in reality, the possibility that this is carried out by robots, eliminates the questioning of this practice in terms of rights 12 . equally, the possible intervention in the labour market which mainly affects industrial robots must be highlighted in relation to this point (brynjolsson and mcfee 2011) 13 . problems in regards to the creation of robots that increase the differences in opportunities between humans and the possible breach of privacy or the intimacy of individuals are matters that also belong to this group (e.g. as seen with assistance robots that need accurate information about the person they are assisting). iii.3.3. the treatment of robots as previously mentioned, progress in robotics by creating humanoids able to learn, reason and feel has given rise to the line of thought regarding the possibility of considering them as true moral agents and even as rights holders. until now, robots have always been treated as objects rather than subjects. this would be the case regardless of their role and in the event of moral relevance, at best it is possible to allude to machines as moral objects and the existence of duties regarding their care. nevertheless, what these opinions claim is the consideration of the machines as subjects. if we do not allude to a religious reasoning, the consideration of robots as moral subjects requires that they should have the traits we demand from them. i have previously pointed out that the definition of moral subject associated with human beings is difficult to pin down. moreover, at present we are still far from achieving a machine that could be considered identical to a human. in addition, i have also questioned that we are directing our research towards this goal that we could even consider as forbidden by current bioethical standards. however, two questions still remain unanswered with different meanings. the first would entail to question ourselves what would happen in the event that machines identical to humans were actually created? indeed, it is plausible to believe that this is science fiction and it shall never happen (on the differences between machines and people, duffy 2006: p. 31). so, regardless of how much progress is made in aesthetic 12 the "sexbots" can improve the objective of prostitution (no commitments, no affections, better security, better hygiene, no marginalisation). therefore, the problems in relation to this type of robots are whether they should exist, the human-machine relationship and the proper use of the robot. 13 this is a problem that has been aggravated with the introduction of “independent” robots. ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 20 patterns, feelings, gestures and movements, it is difficult to think that emotions, feelings, hormonal reactions, intelligence or consciousness may be incorporated. however, advances in neuroscience and computer science oblige us not to exclude completely this possibility. throughout history, much has been written about what robots will never do (for example dreyfus 1972) and subsequently, many of such things have been developed successfully (brooks 2003). as is well known, the rapprochement of robots to humans made a spectacular progress with the birth of artificial intelligence in the middle of the last century. artificial intelligence is employed to refer to a non-living agent’s reasoning ability. at first, artificial intelligence sought to include as much knowledge as possible in the machine but the ambition of making the machine achieve consciousness persisted. it was then that advances in neuroscience and the study of emotions took place deriving from the assumption that the study of emotions as well as reason is within the realms of possibility. the human mind expresses not only the ability to think but also to feel. thus, in 1994, a. damasio published his book descartes' error (damasio 1994) in which he argues that if an individual does not have capacity to feel emotions he has lost much of his ability to reason. from this time on the aim is not solely the accumulation of knowledge but also to establish a closer connection with the real world. therefore, the possibility of making robots that recognise, understand and express emotions is already considered. however, these emotions shall be different to those of humans. accordingly, the real aim is not to produce "human beings" but rather to improve the robots’ relationship with people. in any event, it is important to note that as pointed out by a.f. beavers, to consider the robot as a moral agent the possibility of creating robots that could consciously perform immoral behaviour should be considered and this is something that is not being done and it is not clear that it should be done (beavers 2009). it has been argued that considering robots as moral agents would imply that these are aware of the consequences of their actions and they are able to not comply with the rules (johansson 2011). but then a question that we had already raised arises once again: why do we wish to create machines that violate our rules? additionally, if machines identical to humans were actually created, we could hardly reject the idea of considering them as moral agents. for this reason, it has been proposed to use the so-called turing test (turing 1950: p. 433) to establish the moral agency of the robot, stating that if the robot became equivalent to a human being and humans are moral agents, then robots should be so too 14 . no machine has fully satisfied this test. the different arguments that may be employed to deny the moral agency can be disputed. in 1950 turing already referred to a series of objections directed towards the possibility that robots were intelligent and they could all be overcome: (i) the 14 the turing test is a test used in the field of artificial intelligence to determine whether a machine behaves in all respects as intelligent, then it must be intelligent. rafael de asís roig the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 21 theological objection: the soul has been given by god to men but may also be given to machines, (ii) the objection of those who "hide their heads in the sand"; it would be horrible if this happened but it does not seem to be a strong argument, (iii) the mathematical objection: machines have their limitations but as do humans, (iv) the argument of consciousness: machines can not be conscious of what they do or have feelings (i have already referred to this issue), (v) the argument of the different capabilities: there are things that machines are incapable of doing but this is also applicable to human beings, (vi) the argument of the informal behaviour: there are no rules that determine human behaviour entirely but it would be possible to program a machine this way. additionally, we must be aware that denying moral status to robots due to the way in which they have achieved their capacity to feel pain and suffering is not acceptable as it may also be applied to humans (bostrom and yudkowsky 2011: p. 8) 15 . moreover, this viewpoint may be defended appealing to human diversity and dignity (bostrom 2005: pp. 202-214). however, as i have already reiterated, our aim is not to create robots that are identical to humans and this entails that we cannot extend the moral agency of humans to robots nor integrate them in human ethics. we seek perfection in robots and humans are not perfect, and equally, human ethics takes on a meaning in regards to the possibility of what is considered immoral and our intention is not to create unethical robots. the other issue is whether there is only one type of moral agent or if it is possible to adopt a pluralistic view thereof. this point of view would entail not considering machines as human but grants them a moral value which is higher than the one objects possess. thus, for example, j.p. sullins has stated that, in certain circumstances, robots can be seen as moral agents suggesting three conditions that need to be fulfilled: (i) autonomy from programmers or operators, (ii) their behaviour is analysed or justified in terms of intention to do good or evil (iii) behaves as though it is responsible for another moral agent (sullins 2006). nevertheless, there is another possible argument: the one followed by those who claim the rights of animals. indeed, in recent years various authors and schools advocate to broaden moral agency to include animals based on empathy, the existing relationships or the ability to feel pleasure and pain. to consider animals as moral subjects and the subsequent recognition of rights is 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(2010), “moral transhumanism”, en the journal of medicine & philosophy, vol. 35. http://www.inf.ed.ac.uk/events/hotseat/dylan_position.pdf http://www.changesurfer.com/acad/democratictranshumanism.htm http://www.frc.ri.cmu.edu/users/hpm/project.archive/general.articles/1993/robot93.html http://www.frc.ri.cmu.edu/users/hpm/project.archive/general.articles/1993/robot93.html http://www.frc.ri.cmu.edu/~hpm/project.archive/robot.papers/2003/cacm.2003.html http://www.frc.ri.cmu.edu/~hpm/project.archive/robot.papers/2003/cacm.2003.html ethics and robotics. a first approach the age of human rights journal, 2 (june 2014) pp. 1-24 issn: 2340-9592 24 peters, t. (2011), “h-: transhumanism and the posthuman future: will technological progress get us there?”, available at http://www.metanexus.net/essay/htranshumanism-and-posthuman-future-will-technological-progress-get-us-there consulted on 1st august 2013. pogge, th. (2002), world poverty and human rights, blackwell, oxford. ramsey, p. (1970), fabricated man: the ethics of genetic control, yale university press, new haven. rifkin (1983), algeny: a new word—a new world, penguin, new york rifkin, j. (1998), the biotech century, penguin putnam, new york. rifkin, j. and howard, t. (1977), who should play god? the artificial creation of life and what it means for the future of the human race, dell publishing company, new york. romañach, j. (2009), bioética al otro lado del espejo, diversitas, a coruña. sassen, s. (1998), globalization and its discontents, the new press. sharkey, n. (2008), “the ethical frontiers of robotics”, science 19. silver, l. m. (1997), remaking eden: cloning and beyond in a brave new world, avon books, new york. sullins, j.p. (2006), “when is a robot a moral agent?”, en international review of information ethics, vol. 6. sullins, j.p. (2006), “when is a robot a moral agent?”, en irie, international review of information ethics, vol. 6. sunstein, c. (2005), laws of fear, cambridge university press. swierstra, t. and rip, a. (2007), “nano-ethics as nest-ethics: patterns of moral argumentation about new and emerging science and technology”, en nanoethics, vol. 1. turing, a.m. (1950), “computing machinery and intelligence”, en mind 49. veruggio, g. (2007), “la nascita della roboetica”, en leadership medica, n. 10. veruggio, g. y operto, f. (2006), “roboethics: a bottom-up interdisciplinary discourse in the field of applied ethics in robotics”, en irie, international review of information ethics, vol. 6. von neuman, j. (1951), “the general and logical theory of automata”, jeffress, l.a. (comp.), cerebral mechanisms in behavior, wiley, new york. http://www.metanexus.net/essay/h-transhumanism-and-posthuman-future-will-technological-progress-get-us-there http://www.metanexus.net/essay/h-transhumanism-and-posthuman-future-will-technological-progress-get-us-there foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 1 foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq: building a bridge that should be used montserrat abad castelos1 abstract: after examining the united nations security council (unsc) resolutions referred to the foreign fighters who joined the ranks of isis in iraq and syria and to the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq (unitad or the investigative team), this article brings both contents together in order to ascertain whether there may be gaps or problems which should be addressed, since both developments were prompted by the unsc. it is explored whether there may be certain inconsistencies, such as the one relating to the emphasis placed on different crimes, depending on the resolutions in question. thus, those related to ftfs focus on terrorism crimes, while those related to unitad refer to atrocity crimes. hereinafter the action and evolution of unitad is examined, in order to determine whether it might be helpful to overcome some existing barriers and avoid impunity for atrocity crimes. it will be concluded that unitad may provide substantial support, not only in relation to trials in iraq, but also in third states, by providing useful tools or evidence to prosecute ftfs. seizing this opportunity will require further action, which will be crucial to promote accountability and justice. keywords: isis; foreign terrorist fighters; unitad; atrocity crimes; iraq; jurisdiction. summary: 1. introduction. 2. dealing with the vast numbers of people who travelled to join isis in iraq (and syria): the establishment of the new legal category of foreign terrorist fighters and related measures. 3. facing a bigger challenge?: the return of foreign terrorist fighters. 4. first approach to unitad: its establishment, strategic focus and early work. 5. highlighting some basic premises and priorities, but also relevant problems. 5.1. assumptions, concerns and difficulties in a changing scenario. 5.2. gaps, inconsistencies and tensions between unsc resolutions. 6. second approach to unitad: its key role to overcome serious obstacles in the field of criminal justice regarding the foreign terrorist fighters. 6.1. the background regarding justice: an inextricable labyrinth. 6.2. unitad’s work may bring new significant tools to deal with the ftf’s prosecution for atrocity crimes beyond terrorist offences. 7. conclusions. 1. introduction iraq is the cradle of civilization. thousands of years ago, it was the scene of prodigious progress for humanity, where writing, city-states and written law flourished. one of the first antecedents in the recognition of human rights was registered there and 1 professor of public international law. universidad carlos iii de madrid, spain (mabad@der-pu.uc3m. es). this article has been written within the framework of the research project ods, derechos humanos y derecho internacional (sdgs, human rights and international law), awarded by the spanish ministry for science, innovation and universities (pgc 2018-095805-b-100). all the websites quoted throughout this article were accessed on 21 january 2021. mailto:mabad@der-pu.uc3m.es mailto:mabad@der-pu.uc3m.es foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 2 rights such as religious freedom in the conquered territories were approved under the empire of cyrus the great in the 6th century bc2. however, despite this magnificent past, the present has borne witness to paradoxical regressions, more recently in the form of successive waves of violence. some ensued as a result of external decision-making, such as the illegal invasion of the country in 2003, the consequences of which are intertwined with the very origin of isis. however, it is obvious that there are other reasons which help to explain the emergence and, above all, the expansion of this terrorist group. these factors cannot be reduced to just one level, since they are multiple and heterogeneous: thus, on the one hand, the sectarian policies imposed after the occupation which neglected necessary ethnic-religious balances and fed tension and resentment among communities3; and, on the other hand, the great socio-economic inequalities and even psychological factors transcending iraq and the region's scope. one example of the latter is the global resurgence of powerful feelings of identity (fukuyama, 2018). as is well known, the self-proclaimed islamic state (from now on, also the isis, isil or daesh, interchangeably) recently held vast areas of iraq and syria (more than 100,000 square kilometers) and their 11 million inhabitants under its control. more specifically, since june 2014 when isis declared the caliphate, it has perpetrated not only brutal violations of rights to freedom of worship but also other extremely serious violations of international human rights law (hereinafter ihrl), international humanitarian law (hereinafter ihl) and international criminal law in the territories of both states4. the bloody armed conflicts that took place in iraq and syria to eradicate isis’ rule were only recently put to a formal end. the non-international armed conflict in iraq took place between june 2014 and december 2017 between isis and the iraqi armed forces (both federal and regional, the latter being the peshmerga, i.e. the armed forces of the kurdistan regional government). the iraqi armed forces were supported by parastatal militias and international coalition forces, which intervened at the request of the state in the case of iraq, in contrast to what has happened in syria. in fact, there are substantial differences between the iraqi and syrian wars, in particular, the nature of the conflict, the contrasting third party intervention, the numbers of victims and the fact that the syrian armed conflict, especially bloody and complex, still remains open5. the iraqi armed conflict resulted in some 30,000 civilian deaths 2 in point of fact, the cyrus cylinder, the piece of clay where those rights were engraved, was discovered in the ruins of babylon, in mesopotamia, present-day iraq; see the british museum, ‘the cyrus cylinder’. available at https://www.britishmuseum.org/research/collection_online/collection_object_details 3 see smith (2014). 4 for the facts regarding the rise and decline of is, see r. callimachi, ‘fight to retake last isis territory begins’, the new york times, 11 september 2018. available at https://www.nytimes.com/2018/09/11/world/ middleeast/isis-syria.html and also bbc news, ‘islamic state and the crisis in iraq and syria in maps’, 28 march 2018. available at https://www.bbc.co.uk/news/world-middle-east-27838034. 5 the syrian democratic forces (arab-kurdish militias), backed by the united states-led international coalition, also announced victory over daesh in syria though; j. stocker, ‘sdf declares ‘total’ victory over isis in syria’, the defense post, march 23, 2019. available at https://thedefensepost.com/2019/03/23/sdfvictory-isis-syria/ https://www.britishmuseum.org/research/collection_online/collection_object_details https://www.nytimes.com/2018/09/11/world/middleeast/isis-syria.html https://www.nytimes.com/2018/09/11/world/middleeast/isis-syria.html https://www.bbc.co.uk/news/world-middle-east-27838034 https://thedefensepost.com/2019/03/23/sdf-victory-isis-syria/ https://thedefensepost.com/2019/03/23/sdf-victory-isis-syria/ montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 3 in iraq and almost double that figure in injuries, according to the most reliable estimates (report by the special rapporteur on extrajudicial, summary or arbitrary executions on her mission to iraq, 2018, para. 1)6. although the numbers of deaths and displaced persons in iraq have been considerably lower than those reported in syria, the crimes committed by isis reflect the same pattern of outrage. the liberation of large areas of iraq, which the isis had kept under its control (mosul was recovered in july 2017 and the declaration of victory over the is was made by the iraqi prime minister in december 20177), brought to light the tremendous magnitude of the crimes committed against the inhabitants of those territories (unami/ohchr, report on the protection of civilians in the context of the ninewa operations and the retaking of mosul city, 2017). there were not only the testimonies of survivors and witnesses, but also material and human vestiges of horrendous crimes, which are still being uncovered to this day. indeed, daesh committed atrocity crimes throughout this iraqi war, i.e. war crimes, crimes against humanity and genocide against members of different religious minorities. as the special adviser and head of the united nations investigative team to promote accountability for crimes committed by isis in iraq transmitted within their first report to the united nations security council (unsc) in 2018, more than 200 mass graves containing the remains of thousands of men, women and children were discovered in areas previously controlled by the islamic state: ‘these large-scale crime scenes are sites of harrowing human loss, profound suffering and shocking cruelty’ (first report unitad, november, 2018, para. 9). according to the first estimates made in 2017 by professionals from the iraqi medical-legal institute, it was calculated that the processes of discovery of mass graves, exhumation and identification could take more than 800 years, at the then working rate8. further mass graves have subsequently been discovered, and the un assistance mission for iraq (unami) and the office of the un high commissioner for human rights (ohchr), among other entities, assumed that they will continue to discover more in the coming months, and even years (unami/ohchr, november 2018, ‘unearthing atrocities: mass graves in territory formerly controlled by isil’, para. 9). it is incontestable that all serious violations committed during the conflict should be brought to justice, regardless of the affiliation of the alleged perpetrators, since other parties to the conflict also committed serious breaches of ihl and ihrl. however, it seems that iraq has major problems in laying proper foundations for transitional justice and ensuring 6 despite the formal declaration of victory in iraq and the end of most of the hostilities between isis and the iraqi forces, it should be noted that, in reality, the armed conflict has not yet totally come to an end and there is a high risk of a resurgence. see, in this regard, j. matar, the war report. iraq: any hope for change?, the geneva academy (november 2019), at 2. available at https://www.geneva-academy.ch/joomlatools-files/ docman-files/iraq%20any%20hope%20for%20change.pdf 7 declaration made on december 9, 2017; see m. chmaytelli, ‘iraq declares final victory over islamic state’, reuters, 9 december 2017. available at https://www.reuters.com/article/us-mideast-crisis-iraq-islamicstate/ iraq-declares-final-victory-over-islamic-state-iduskbn1e30b9; and m. coker and f. hassan, ‘iraq prime minister declares victory over isis’, the new york times, 9 december 2017. available at https://www. nytimes.com/2017/12/09/world/middleeast/iraq-isis-haider-al-abadi.html. 8 see report by special rapporteur on extrajudicial, summary or arbitrary executions (2017). https://www.geneva-academy.ch/joomlatools-files/docman-files/iraq%20any%20hope%20for%20change.pdf https://www.geneva-academy.ch/joomlatools-files/docman-files/iraq%20any%20hope%20for%20change.pdf https://www.reuters.com/article/us-mideast-crisis-iraq-islamicstate/iraq-declares-final-victory-over-islamic-state-iduskbn1e30b9 https://www.reuters.com/article/us-mideast-crisis-iraq-islamicstate/iraq-declares-final-victory-over-islamic-state-iduskbn1e30b9 https://www.nytimes.com/2017/12/09/world/middleeast/iraq-isis-haider-al-abadi.html https://www.nytimes.com/2017/12/09/world/middleeast/iraq-isis-haider-al-abadi.html foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 4 future stability. furthermore, the country has been experiencing mass protests since october 2019, against corruption and the government’s sectarian quota-based system, among other motives. unami has reported that iraqi authorities have committed serious human rights violations and abuses, including the deliberate killing of unarmed protesters, arbitrary detention and ill-treatment of torture. besides, the special rapporteur on the human rights of internally displaced persons on her visit to iraq in 2020, reported that remaining displaced population continues to require humanitarian assistance and “conditions in places of return and the durable solutions available to internally displaced persons remain of paramount concern” (report of the special rapporteur on the human rights of internally displaced persons, 2020, par. 70). at the same time, more than 10,000 isis fighters are estimated to remain active in iraq and syria in 2020. this is happening against a background of the covid-19 disease, in which there is surge in isis activity (and among some of its regional affiliates) particularly in iraq9 and syria (eleventh report of the secretary-general on the threat posed by isil to international peace and security, 2020, paras. 3 and 13). in view of the above, the starting points of this article are, on the one hand, the analysis of the phenomenon of ftfs and, on the other hand, the examination of the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq. the following purpose will be to bring both parameters (ftfs and the investigative team) together, in order, in the first place, to explore if there are inconsistencies, gaps or problems between them, in particular, between the unsc resolutions that prompted both developments; and, in the second place, to determine if the team's action and evolution could be crucial in solving problems and overcoming existing barriers. therefore, the structure of this article is straightforward and it will address the following aspects. first, the resolutions adopted by the unsc with respect to ftfs and, second, the aforementioned iraqi investigative team will be examined, looking for possible lessons learnt from its general aspects, in a first round. third, possible tensions, gaps and incongruities between the unsc’s resolutions shall be searched. fourth, unitad will be approached in a second round, after looking at the labyrinth of criminal justice in the current context, for the purpose of determining whether the investigative team might provide a substantial support for future prosecutions, in iraq and beyond. lastly, all these issues will be weighted in order to ascertain possible repercussions and draw conclusions. 2. dealing with the vast numbers of people who travelled to join is in iraq (and syria): the establishment of the new legal category of foreign terrorist fighters and related measures given that the term and concept of foreign fighters and their presence in the reality of numerous conflicts are nothing new (malet, 2018)10, the flow of people traveling mainly to syria and iraq in recent years to join the ranks of isis was logically perceived as an 9 after a period of relative calm, terrorist attacks took place in baghdad on 21 january 2021, carried out by two suicide bombers, killing at least 32 people and injuring more than 100. 10 this author takes the vienna congress as the main point of departure. for the ‘my enemy’s enemy is my friend’ dynamics in relation to specific conflicts (like afghanistan) which served as ‘incubators’ of some problems we are facing today. see also gilles de kerchove (2016). montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 5 unprecedented threat. there were other contributing factors, such as the sheer volume of displacements and the fact that the main recipient of these accessions of fighters was not a normal contending party in conflict but a heinous actor like isis (marrero rocha, 2019). when the caliphate was declared in june 2014, isis had around 40,000 foreigners from more than 110 countries fighting in its ranks (soufan group, 2104-2017). these figures, together with its vast territorial expansion (unprecedented in the case of a terrorist group) and the parastatal structure from which it exercised a terrifying control over the population, raised the alarm. the unsc reacted by creating the category of foreign terrorist fighters based on resolutions 217011 and 217812, both adopted in 2014, and based on the previous 137313, making use of chapter vii of the un charter. through resolution 2178, the unsc lowered the punitive line by forcing states to criminalize conducts that in most cases were still not constitutive of a crime in their domestic legal systems, as long as mere intention was involved14. obviously, a reaction was necessary to interrupt the flow of individuals traveling to iraq and syria. however, it seems clear that the unsc should have avoided creating the category of ‘foreign terrorist fighters’, which not only lacked foundation in ihl, but also generated great confusion around its content, due to the merging involved of two divergent concepts. the message from the main promoter and guardian of ihl, the international committee of the red cross (icrc), was unequivocal in this regard, recalling that even the concept of ‘foreign fighter’ does not exist as such in ihl, and therefore ‘the applicability of ihl to a situation of violence in which such fighters may be engaged depends on the facts on the ground and on the fulfillment of certain legal conditions stemming from the relevant norms of ihl’ (32nd international conference of the red cross and red crescent, december 2015, p. 19). to be considered a combatant, it is necessary to be linked to an armed conflict. however, it must also be borne in mind that the status of prisoner of war does not exist within non-international armed conflicts. furthermore, it is necessary to take into account that the 2014-2017 iraqi war was a conflict of this latter nature, i.e. noninternational, and the status of prisoner of war could not exist within this conflict between the abovementioned forces and daesh, not even in the case of capture (ibid, pp. 24-25.)15. hence, if the status of ftfs was not so relevant from that legal point of view, there is another reason why the creation of the category of foreign terrorist fighters is itself subject to criticism. the description of the behaviors that states would be forced to criminalize in their domestic laws according to unsc res 2178 should have been sufficient. 11 un doc. s/res/2170 (2014). see preambular par.12 and pars. 7-10. 12 un doc. s/res/2178 (2014). 13 un doc. s/res/1373 (2001). 14 see the main conducts typified in para. 4, a) b) and c). 15 however, as regards the course of the conflict, it should be added that although foreign terrorist fighters do not have the guarantees provided in protocol ii (it is not even appropriate to assess whether the requirements for its application are met, as iraq is not one of its 168 states parties; see ‘treaties, states parties and commentaries’. available at https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/states.xsp?xp_ viewstates=xpages_normstatesparties&xp_treatyselected=475), they would always have (at least from legal theory) the guarantees provided according to common article 3 and the safeguards stemmed from customary law (icrc, ibid., p. 25). https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/states.xsp?xp_viewstates=xpages_normstatesparties&xp_treatyselected=475 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/states.xsp?xp_viewstates=xpages_normstatesparties&xp_treatyselected=475 foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 6 resolution 2178 has been extensively analyzed by experts, who have highlighted, among other achilles' heels, the uncertainties raised by the objectification of criminal liability that resolution 2178 brings with it, as it is built on a reality (terrorism) that lacks a normative concept at the universal level (ambos, 2014), in wake of the extended deadlock of the draft comprehensive convention against international terrorism. furthermore, another criticism of resolution 2178 is the shift of the punitive barrier, the focus of which is also on the intention to commit certain acts. this move poses specific and diverse problems, such as difficulties to obtain evidence regarding only purposes or intentions (marrero rocha, 2019, p. 46) or the risk of a possible abusive use by oppressive regimes to persecute political opponents or even to stigmatize certain social groups (segura serrano, 2019, p. 151). this text will not examine issues previously dissected by specialists, but only the confrontation of certain contents of resolution 2178 with other unsc resolutions that concern ftfs, in order to subsequently determine if unsc strategy is adequate to deal with the persecution of ftf's for their involvement in war crimes, crimes against humanity and genocide perpetrated in iraq. following resolution 2178, the unsc counter-terrorism committee identified a series of guiding principles on ftfs at a special meeting held in madrid, in july 2015, which were subsequently adopted by the security council in december 2015 (madrid guiding principles)16. these 35 guiding principles represent a soft law tool to assist member states in ensuring compliance with resolution 2178 and stopping the flow of ftfs. the application of measures based on this unsc resolution and these principles, together with military action against daesh in iraq and syria, can be considered conditioning factors for the interruption of the flow of ftfs to these countries (analytical support and sanctions monitoring team concerning isis, al-qaida and associated individuals and entities, 2017 and 2018). due to the fact that the madrid guiding principles are aimed at ensuring the implementation of resolution 2178, they contemplate mostly aspects related to the prosecution of ftfs, purposely covering the new typified behaviors, that is, those related with acts of terrorism. thus, although, the madrid guiding principles explicitly cover crimes against humanity, war crimes and genocide through its principle number 32 (according to which, “member states should ensure that their criminal justice systems are capable of dealing with all serious crimes committed by foreign terrorist fighters, in particular war crimes, crimes against humanity and crimes related to gender”), do not include further specific measures concerning atrocity crimes. 3. facing a bigger challenge?: the return of ftfs the new legal category of ftfs brought by the unsc resolution 2178, whatever its shortcomings may be, is here to stay. it was rapidly consolidated in the field of legal obligations through another subsequent unsc action: resolution 2396, adopted on december 21, 2017, which seeks to address the threat of the return of ftfs17. acting 16 un special rapporteur on extrajudicial, summary or arbitrary executions (2017). 17 un doc. s/res/2396 (2017). montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 7 again under chapter vii of the united nations charter, the unsc begins on this occasion from the serious and growing threat posed by foreign terrorist fighters who return to their countries of origin or nationality or move to third countries, particularly from conflict zones. in addition, the threat exists of adhesion of ftfs to entities such as isis, the alnusra front and other cells, affiliated entities or groups splintered or derived from isil, al-qaida or other terrorist groups that could be trying to return to their countries of origin or nationality or to move to third countries18. to tackle the return of ftfs, the resolution obliges states to adopt a series of measures (some of which had already been adopted by the us and the eu), in particular, those related to border security and information sharing19. however, it also includes judicial and international cooperation measures20 as well as new prosecution, rehabilitation and reintegration strategies21. resolution 2396 reinforces 2178, and at the same time leaves little room for interpretation that it is aimed at detecting those ftfs (i.e. nationals for the main states concerned) who are returning or want to return. it also prepares measures to confront the threat that these individuals pose. however, its aim is not to provide means for nationals to return to their respective countries and face the consequences of their crimes. although prosecution is one of those measures foreseen, it is essentially designed within its connection with the behaviors previously criminalized by unsc 2178, as well as with participation or support given to the financing, planning, preparation or commission of terrorist acts22. the emphasis is placed principally on the prevention of future terrorist acts23. as a result of that, resolution 2396 does not explore certain issues and, instead, overemphasizes others. thus, the unsc ‘reaffirms’ that ‘those responsible for committing or otherwise responsible for terrorist acts, and violations of international humanitarian law or violations or abuses of human rights in this context, must be held accountable’24. why is the wording ‘in this context’ used? perchance, the potential scope of the prosecutions is constrained thereby? should it be interpreted as focusing on the prosecution of acts that constitute a violation of ihl or ihrl only when there are terrorist acts involved? obviously, this should not be so. nonetheless, an autonomous mention of war crimes, crimes against humanity and genocide is lacking certainly, an unwelcome consequence of the intense focus on terrorism in resolution 2396 was the eclipsing of atrocity crimes. a clearer reference to these international crimes would have been especially logical and necessary in a resolution such as this one, which refers to returnees from conflict zones where such crimes have been committed and ftfs may presumably have participated in their commission. nonetheless, there is obviously nothing to prevent an interpretation that considers them to be included. in fact, it should be construed as such, since this conclusion seems to be the most logical one derived from 18 preambular pars. 10 and 15. 19 pars. 2-16. 20 pars. 17-28. 21 pars. 29-41. 22 para. 17. 23 see, for instance, as osce and unoct are discussing “ways to responsibly use passenger data to prevent return of foreign terrorist fighters”(2020). 24 para. 19. foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 8 all the elements involved. thus, in another paragraph of the same resolution, the unsc refers to the possible crimes in a generic sense25. also, there are other gaps. one that should be highlighted is that no other potential crimes are mentioned in resolution 2396 either. another more glaring gap appears when this same resolution later refers to ‘extradition’ (mentioned four times, twice in the preamble and twice more in the resolution's operational part26), but only in connection with terrorism-related causes. resolution 2396 also contains a mandate for the counter-terrorism committee to review the 2015 madrid guiding principles: ‘in light of the evolving threat of foreign terrorist fighters, particularly returnees, relocators and their families, and other principal gaps that may hinder states’ abilities to appropriately detect, interdict, and where possible, prosecute, rehabilitate and reintegrate foreign terrorist fighter returnees and relocators and their families (…)’27. to fulfill this mandate, the committee reaffirmed the relevance of the madrid guiding principles and approved an addendum (at the special meeting held in new york, on december 13, 2018) whose additional guidelines contain 17 new guiding principles28. in this addition, new guiding principles regarding prosecution are contemplated. it should be noted that these also continue to place the primary focus on acts related to terrorism, despite the fact that among the returnees there will presumably be perpetrators of atrocity crimes. specifically, the new guiding principle 46 states that: ‘in undertaking efforts to develop and implement prosecution, rehabilitation and reintegration strategies and protocols, member states should: (…) implement their obligations to ensure that terrorists are brought to justice, as required under resolutions 1373 (2001), 2178 (2014) and 2396 (2017), and ensure that their criminal justice systems are capable of dealing with all serious crimes that may have been committed by foreign terrorist fighters’29. although this previously quoted statement refers to ‘all serious crimes’, it should be noted that the resolution only indicates terrorist crimes as a parameter, and that crimes that could potentially go beyond that field are not explicitly mentioned here either. a single generic reference to ihl violations and human rights violations or abuses is contained (similarly to aforementioned items, when referring to the resolution 2396), but once more using the wording ‘in this context’, which could thus be understood as being linked with acts of terrorism. therefore, although measures related to prosecution are foreseen, there are no 25 in particular, the unsc: ‘calls upon member states, including through relevant central authorities, as well as unodc and other relevant un entities that support capacity building, to share best practices and technical expertise, informally and formally, with a view to improving the collection, handling, preservation and sharing of relevant information and evidence, in accordance with domestic law and the obligations member states have undertaken under international law, including information obtained from the internet, or in conflict zones, in order to ensure foreign terrorist fighters who have committed crimes, including those returning and relocating to and from the conflict zone, may be prosecuted’; ibid, para. 20. 26 para. 24. 27 para. 44. 28 un doc. s/2018/1177. 29 subsection a). montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 9 explicit references to atrocity crimes, not even on the occasions when the word ‘impunity’ is used (twice)30. once more, when reference is made to the need for states to ‘fully comply’ with their ‘obligations’ relating to the extradition and prosecution ‘of terrorists’, there is not one single generic mention of atrocity crimes, but instead the explicit reference is reduced to ‘their obligations under international counter-terrorism conventions to which they are parties’31. 4. first approach to unitad: its establishment, strategic focus and early work iraq’s final military victories, in december 2017, ‘raised an unprecedented challenge in transitional justice: how to prosecute thousands of suspected isil members, including foreign fighters, held in iraqi custody’ (gilmore, 2018, p. 960). despite having mediated previous demands from different sources for the adoption of some type of action against is atrocities (particularly since the sinjar massacre), the unsc did not prepare a draft resolution until the formal request was made by the iraqi government. however, the pressure from a diverse range of entities also played a crucial role, as did the campaign implemented by amal clooney and nadia murad, which garnered such widespread media attention that their activism was in fact considered to have been one of the triggers for unsc action32, alongside uk action33. on august 9, 2017, the iraqi minister of foreign affairs sent a letter to the united nations secretary general (unsg) for transmission to the unsc, requesting the assistance of the international community to ensure that members of isis be held accountable for crimes committed in iraq, in particular those that could constitute ‘crimes against humanity’34. from the beginning it was clear that an identifying element of this envisaged mechanism would be its dependence on iraqi consent35. the resolution gave iraq ‘something approaching a veto’ regarding the scope of work to be subsequently carried out by the investigative team (van schaack, 2018, ‘the iraq investigative team”, p. 115). a month later, the unsc unanimously adopted resolution 2379, without invoking chapter vii of the un charter. in this resolution, the unsc reiterates “its condemnation 30 see paras. 9 and 35. 31 para. 40. 32 see a. clooney, ‘finally, we have a coordinated effort to bring isis to justice’, the huffpost, september 22, 2017. available at https://www.huffingtonpost.com/entry/amal-clooney-isis_us_59c569bae 4b01cc57ff22947?guccounter=1; h. saul, ‘amal clooney delivers damning speech to the un over failure to stop isis 'genocide'’: 'i am ashamed’’, the independent, september 17, 2016. available at https://www .independent.co.uk/news/people/amal-clooney-delivers-damning-speech-to-the-un-over-isis-genocide -i-wish-i-could-say-im-proud-to-be-a7313551.html; nadia’s initiative, ‘why yesterday's un security resolution was a landmark decision for the yazidis’, september 24, 2017. available at https://nadiasinitiative. org/news/2017/9/24/why-yesterdays-un-security-resolution-was-a-landmark-decision-for-the-yazidis. 33 the uk took over the writing of the draft. in this regard, it can be interpreted that this shift in the british position (from emphasizing reconciliation to promoting responsibility) could represent an effort to show ‘an internationally-engaged post-brexit britain’ (van schaack, 2018, ‘the iraq investigative team, p. 115). 34 un doc. s/2017/710. 35 it is also reflected in the role of the investigative team, which will refer primarily to the iraqi courts, as shown in different revealing passages of the resolution 2379, and additionally in the terms of reference developed later. https://www.huffingtonpost.com/entry/amal-clooney-isis_us_59c569bae 4b01cc57ff22947?guccounter=1 https://www.huffingtonpost.com/entry/amal-clooney-isis_us_59c569bae 4b01cc57ff22947?guccounter=1 https://www.independent.co.uk/news/people/amal-clooney-delivers-damning-speech-to-the-un-over-isis-genocide-i-wish-i-could-say-im-proud-to-be-a7313551.html https://www.independent.co.uk/news/people/amal-clooney-delivers-damning-speech-to-the-un-over-isis-genocide-i-wish-i-could-say-im-proud-to-be-a7313551.html https://www.independent.co.uk/news/people/amal-clooney-delivers-damning-speech-to-the-un-over-isis-genocide-i-wish-i-could-say-im-proud-to-be-a7313551.html https://nadiasinitiative.org/news/2017/9/24/why-yesterdays-un-security-resolution-was-a-landmark-decision-for-the-yazidis https://nadiasinitiative.org/news/2017/9/24/why-yesterdays-un-security-resolution-was-a-landmark-decision-for-the-yazidis foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 10 of all violations of international humanitarian law, violations and abuses of international human rights law, and acts of terrorism, and expresses its determination that, having united to defeat the terrorist group isil (da’esh), those responsible in this group for such acts, including those that may amount to war crimes, crimes against humanity, and genocide, must be held accountable”36 and requests that the unsg establish the investigative team, based on the recognition that the acts committed by daesh ‘may amount to war crimes, crimes against humanity or genocide’, and that their perpetration ‘is part of the ideology and strategic objectives of isil (da'esh), and used by isil (da'esh) as a tactic of terrorism’37. the unsc anticipates that the team will be placed under the leadership of a special adviser ‘to support domestic efforts to hold isil (da'esh) accountable by collecting, preserving and storing evidence in iraq of acts that may amount’ to crimes of such a nature38. it also foresees the development of specific regulations (through the subsequent elaboration of the terms of reference) ‘to ensure the broadest possible use before national courts, and complementing investigations being carried out by the iraqi authorities, or investigations carried out by authorities in third countries at their request’39. although an initial period of 60 days was accorded for the elaboration of such ‘terms of reference’, several extensions were necessary due to the controversy generated by the issue of the death penalty, in force in iraq40, although suspended by a moratorium in kurdistan (report by the special rapporteur on extrajudicial, summary or arbitrary executions on her mission to iraq, 2018)41. thereafter, the terms of reference highlight, when dealing with the use and sharing of evidence, ‘the importance of assisting iraq and other states in holding isil (da'esh) members accountable, in particular those who bear the greatest responsibility, including in terms of leadership, which can include regional or mid-level commanders, in order to assist in countering terrorism, including by stemming financing the continued flow of international recruits to isil (da'esh)’42. subsequently, the first report of the investigative team, in addition to recognizing ‘the global impact and reach of isil terrorist activities, as well as its extensive recruitment of foreign terrorist fighters’43, seems to highlight two other elements in connection with this same object: first, the emphasis placed by the international community on ‘the crucial importance of holding senior members accountable for the crimes they have committed, on the basis of objective, evidence-based investigation and analysis’44and second, the aim, among its guiding principles, of ‘focusing on those who bear the greatest responsibility’45, in coherence with the terms of reference46. 36 para 1. 37 para. 2 (operational and also preambular para. 5). 38 para. 2. 39 ibid. 40 see unami/ohch (2014); un doc. a/hrc/38/44/add.1 (2018), p. 6. 41 see also un doc. a/hrc/38/44/add.1 (2018), p. 6. 42 para. 29. see also see van schaack (2018, just security). 43 unitad first report (2018), para. 16. 44 ibid., para. 10. 45 ‘principle 4: the investigative team will focus its initial investigative efforts on those most responsible for the atrocities committed by isil, including through the ordering of such acts. this will necessitate an emphasis on senior isil leadership, as well as regional or mid-level commanders’; ibid., para. 26. 46 terms of reference of the investigative team to support domestic efforts to hold isil (da'esh) accountable of acts that may amount to war crimes, crimes against humanity and genocide committed in iraq, established pursuant to security council resolution 2379 (2018), para. 29. montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 11 unitad (the investigative team or it) can be counted among the recently established mechanisms at un level to promote responsibility for serious violations of human rights and ihl, including those related to syria (on the one hand, the commission of inquiry on syria, created by the human rights council to investigate human rights violations perpetrated there47, and, on the other hand, the international, impartial and independent mechanism to assist in the investigation and prosecution of those responsible for the most serious crimes under international law committed in the syrian arab republic since march 2011, created by the unga in december 201648); or the commissions of inquiry created by the human rights council for burundi, in 201549, for yemen, in 201750, or for myanmar, in 201851. these un investigative bodies, although clearly different, could be seen as an alternative to security council referrals to the international criminal court under article 13 of the rome statute or the establishment of ad hoc international or hybrid tribunals (gilmore, 2018, p. 960.). in any event, among of all the investigative bodies mentioned, only the one related to iraq has been established by a security council resolution, with all that this entails, in particular the consensus and the power which are behind. after the initial design of its framework of action52, unitad became operational in the field in 201953, having different premises and facilities in iraq54. it is currently composed of 155 personnel, including 134 staff members55, ensuring on the one hand, gender and geographical balance and, on the other hand, the iraqi component of the investigative team, also reflecting the diversity of communities throughout iraq56. the investigative team adopted an initial implementation plan envisaging the following three initial areas for investigation of crimes committed by isis: 1) attacks committed against the yazidi community in sinjar in august 2014; 2) crimes committed in mosul between 2014 and 2016, including the execution of religious minorities, crimes involving sexual and gender-based violence and crimes against children; 3) the mass killing of unarmed iraqi air force cadets from tikrit air academy in june 2014 (unitad, second report, may 2019, para. 13). however, subsequently two additional field investigations units were established to investigate into crimes committed against christian, kakai, shabak, sunni and turkmen shia communities in iraq, in line with the strategic objective of the investigative team to ensure its ability to investigate acts committed against all affected communities in the country (unitad fourth report, may 2020, paras. 7-17). certainly, although the main driving forces behind resolution 2379, when creating the investigative team for iraq, were connected with the persecution of the yazidi genocide, the unsc made it clear from the beginning that the one of the main goals of the special adviser to the investigative team should be to promote throughout the world accountability for acts 47 human rights council, un doc. a/hrc/s-171 (2011). 48 un doc. a/res/71/248. 49 un doc. a/hrc/s-24. 50 un doc. a/hrc/36/31. 51 un doc. a/hrc/39/l.22. 52 see unitad first report (november 2018), 53 see unitad second report (may 2019). 54 see unitad fourth report (may 2020), paras. 22-23. 55 see unitad fifth report (november 2020), para 39. 56 see unitad fourth report, paras. 18-21. foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 12 that may amount to war crimes, crimes against humanity or genocide committed by isis, and work with survivors57. in coherence with this, the investigative team has also been highlighting and seeking to implement this aim58. excavations at mass graves and collection of forensic testing have always been a priority for the investigative team, along with the collection and storage of documentary and digital evidence, on the one hand, and the collection of testimonial evidence and protection of witnesses, on the other hand. furthermore, some key requirements were identified from the beginning, in order to focus the team's analytical capacity, in particular: on senior and provincial leadership structures, media apparatus, foreign terrorist fighters recruitment processes and mapping the whereabouts of daesh members59. besides, a statistical analysis system has been developed in order to cover ‘data pertaining to all information requirements, including ongoing isil activities, arrests, trial and the sentencing of isil members by iraqi courts, as well as other incidents of relevance’60. 5. highlighting some basic premises and priorities, but also relevant problems 5.1. assumptions, concerns and difficulties in a changing scenario the return of jihadists has been disruptive and slower than expected (un analytical support and sanctions monitoring team, 2018, para. 6).the existence of a ‘devolved threat’ with regard to isis plans in order to establish itself wherever possible, ‘with such returnees and relocators planning to bed down wherever possible’ was assumed from the beginning (ibid.). beyond the cases of withdrawal of ftfs due to their death or capture, among the recent waves of voluntary abandonment (where presumably there have been hardly any place left for disoriented, repentant or regretful former ftfs) there should be more likely that they are found to be connected with the perpetration of serious violations of ihl and ihrl. both the detection and the prosecution of possible ftfs raise a number of issues that, besides being multifaceted, have a considerable juridical component. repatriation is still a 'cross-cutting challenge'. to the initial reluctance from most governments, we must add the new political, legal, operational and security challenges which states continue to face due to covid 19 (eleventh report of the secretary-general on the threat posed by isil to international peace and security, 2020, paras. 11 and 44).this scenario is also having negative impacts on the prosecution of those who have returned to their countries of nationality or habitual residence. although the issue regarding the prosecution of ftfs is mentioned in the unsc res. 2396 as well as in the madrid guiding principles (including the addition to them, made in 57 see un. doc, s/res/2379 (2017), para. 3. 58 unitad third report (november 2019), paras. 86-87. 59 unitad second report (may 2019), para. 50. 60 ibid. montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 13 2018), it should be noted that as yet there is no universal strategy for ensuring the prosecution of ftfs beyond acts related to terrorism, involving mandatory parameters at the international level (as those existing regarding criminalization of new conducts surrounding the creation of the category of ftfs or with respect to the financing of terrorism and the imposition of sanctions; either hard or soft law). accordingly, a multi-agency framework to provide coordinated support to the requesting states on the protection, repatriation, prosecution, rehabilitation and reintegration of third country nationals returning from iraq and syria is been envisaged from the un61. therefore, the outcome of its future implementation remains to be seen. in any event, a coordinated strategy should be one of the primary focuses. there are different policies concerning returnees, not only with respect to ftfs in general, but also as regards the specific treatment of women and children returning from or stuck in iraq or syria; between countries (thus, for example, the answers given by canada, allowing return62; or france, not doing so63) and also between government officials or judiciary within the same country64. it is clear that the number of prosecutions is disproportionately low compared to the total number of returnees65. indeed, official figures show that only a minority of foreign jihadists has been prosecuted, since the states have been focusing their attention mainly on the threat of return. the existence of a problem to be managed in this sense must be recognized, which, in addition to its seriousness and complexity, is extremely delicate, since the scenario could still worsen66. however understandable these fears, it cannot be ignored that the response must always be determined by the requirements of international law. even though this order is a largely relativistic one, it continues to offer clear legal guidelines. besides, ihl offers opportunities which should be taken advantage of by legal practitioners (paulussen, cuyckens and fortin, 2019). however, due, on the one hand, to the fears of the threat of terrorism (albeit legitimate and well-founded) and, on the other hand, to the problems related to evidence, international atrocity crimes are being neglected 61 see un analytical support and sanctions monitoring team, 2018, para. 47. 62 see shephard (2017) . 63 see references to the e. konigen case: afp, ‘french female isis militant should face trial in syria’, january 4, 2018. available at https://english.alarabiya.net/en/news/middle-east/2018/01/04/paris-frenchfemale-isis-militant-should-face-trial-in-syria-.html 64 thus for example, see regarding belgium, on the one hand, w. van wilgenburg (2019); and, on the other hand, ‘belgian appeals court says government can’t be forced to bring back ex-islamic state mothers or their children’, the washington post, february 27, 2019. available at https://www.washingtonpost. com/world/europe/belgian-appeals-court-says-government-cant-be-forced-to-bring-back-ex-islamic-statemothers-or-their-children/2019/02/27/1f432524-3ad9-11e9-b10b-f05a22e75865_story.html. see also the analysis sponsored by egmont, finding convergences in the approaches adopted by germany, france and belgium: t. renard and r. coolsaet (2018), pp. 41 ff.; and b. van ginkel and s. minks (2018), pp. 55 ff. 65 for a coinciding approach, see e. u. ochab (2018, “known genocidaires”); (2019, “attempts to address the issue” and “the investigative team”). 66 it is assumed in this sense that member states expect isis's ftfs and other terrorists to show flexibility in moving between groups, which may reinforce other terrorist groups, such as al-qaida, or generate new combinations or brands; eighth report of the secretary-general on the threat posed by isil (da’esh) to international peace and security and the range of united nations efforts in support of member states in countering the threat, un doc. s/2019/103 (2019), para. 11. https://english.alarabiya.net/en/news/middle-east/2018/01/04/paris-french-female-isis-militant-should-face-trial-in-syria-.html https://english.alarabiya.net/en/news/middle-east/2018/01/04/paris-french-female-isis-militant-should-face-trial-in-syria-.html https://www.washingtonpost.com/world/europe/belgian-appeals-court-says-government-cant-be-forced-to-bring-back-ex-islamic-state-mothers-or-their-children/2019/02/27/1f432524-3ad9-11e9-b10b-f05a22e75865_story.html https://www.washingtonpost.com/world/europe/belgian-appeals-court-says-government-cant-be-forced-to-bring-back-ex-islamic-state-mothers-or-their-children/2019/02/27/1f432524-3ad9-11e9-b10b-f05a22e75865_story.html https://www.washingtonpost.com/world/europe/belgian-appeals-court-says-government-cant-be-forced-to-bring-back-ex-islamic-state-mothers-or-their-children/2019/02/27/1f432524-3ad9-11e9-b10b-f05a22e75865_story.html foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 14 in prosecutions. in fact, most of the sentences released to date in different eu countries have imposed penalties on ftfs for propaganda, indoctrination or recruitment of militants (i.e. mainly in connection with acts of a terrorist nature and in some cases specifically involving women), but not for war crimes or crimes against humanity (and fewer still for genocide)67. prosecution for international crimes must also be a priority. nevertheless, it is obvious that a perception of public security, conceived in its purely internal and narrower scope, is prevailing so far. most national governments and public opinion believe that the best option is that ftfs stay away. this securitization, which has been extended to states and even international organizations like the eu68, can lead to a decreased effectiveness of the fight against terrorism in the medium and long term69. counter-terrorist law is developing so rapidly that it also presents risks and problems (bilková, 2018). one of these worrisome aspects is the ease with which it can cease to be intertwined in its application with ihl and ihrl. these are all branches of international law to which states (and international organizations) must also abide when implementing unsc resolutions. 5.2. gaps, inconsistencies and tensions between unsc resolutions unsc resolutions 2379 and 2396 present a variety of deficits and inconsistencies. both leave aside fundamental obligations related to the exercise of criminal jurisdiction by states. in the case of resolution 2379 (without going into the serious gap resulting from the exclusion of crimes committed by actors other than isis), an opportunity has been wasted to refer to the principles of extraterritorial jurisdiction commonly associated with international crimes (the prosecution of which, however, was supposedly intended). although the establishment of the iraqi investigative team represents an important step towards holding isis members accountable, it should be kept in mind that this mechanism was primarily intended to collect, preserve and store evidence. it is striking that resolution 2379 introduces a territoriality principle for third states, with an eye mainly on potential crimes that may be committed in the future (providing the opportunity that another member state in whose territory daesh ‘has committed acts that may amount to war crimes, crimes against humanity, or genocide’ may also ‘request the team to collect evidence of such acts’)70. therefore, it can be considered ironic and objectionable that jurisdiction for third states regarding potential or future crimes is envisaged (although it has been drawn on territorial support) while the current, necessary ways to take advantage of existing jurisdictional links with respect to atrocity crimes already committed have not been paved. 67 see, for instance, the spanish audiencia nacional’s website. available at https://www.poderjudicial.es/ cgpj/es/poder-judicial/audiencia-nacional/ 68 in this regard, experts have drawn attention to how even democratic systems have introduced ”extraordinary legal means in supposedly ‘ordinary law’, giving credence to the criticism that the eu has opted for a sort of a permanent state of emergency hardly compatible with its founding value of the rule of law that is translated in to the eu legal system through general principles of law” (martín rodríguez, 2019, pp. 143-144). 69 for warnings in this sense, see, among others, ni aoláin (2017 and 2018). 70 para. 11. approval of the unsc is needed for such use, though. https://www.poderjudicial.es/cgpj/es/poder-judicial/audiencia-nacional/ https://www.poderjudicial.es/cgpj/es/poder-judicial/audiencia-nacional/ montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 15 in view of the above, resolution 2379 should be considered a missed opportunity to incorporate the principles of nationality and universal jurisdiction as the exercise of these principles must be considered mandatory in the case of atrocity crimes and the investigative team must promote throughout the world accountability for atrocity crimes. besides, both principles have enormous practical potential with regard to ftfs. although it is indisputable that the crimes to which that resolution refers were committed in iraq, and that it is there where most evidence can be found, precisely limiting the mission of the investigative team exclusively to atrocity crimes (thus omitting not only the crimes recently typified by resolution 2178 in relation to terrorism, but also other possible connected crimes71) would also call for the incorporation of the principles of criminal jurisdiction in accordance with such a nature given that international crimes and extraterritorial principles of jurisdiction are essentially connected. furthermore, the seriousness of the crimes needs to be kept in mind in line with the peremptory nature of the norms which are violated through their commission (norms which have a reinforced status beyond their condition of general international law, at the universal level, as they are norms of ius cogens). consequently, resolution 2379 also misses the inclusion of the most extraterritorial principle of all, that is, that of universal jurisdiction. however, it is true that the above argument is derived from an approach that only takes legal foundations into account, and not the political motivations behind the adoption of resolution 2379. it is well known that political will, in the end, is always particularly hovering over both any decision regarding universal jurisdiction and any resolution which may be adopted in the unsc framework. it should be borne in mind that if the principles of extraterritorial jurisdiction were introduced, the content of the resolution would be more coherent as the international crimes covered by it would be associated with the bases of jurisdiction that correspond to them by reason of their nature. in this regard, it also seems pertinent to emphasize the fact that leaving the matter to what the iraqi government may decide at any given moment is an option that is not in keeping with the international nature of the crimes at stake. in addition, it should be noted that nothing ensures that the iraqi government's future answers will always have to be positive72. along with the above, it is also possible to detect certain inconsistencies between the obligations derived from the main unsc resolutions seen thus far. firstly, it can be missed that resolution 2396 does not take advantage of its interrelation with resolution 2379 to extract possible consequences and refer to consolidated rules of international law which rely on the heart of the matter concerned. both resolutions were adopted in 2017, within the space of three months, on december 21 and in september, respectively, resolution 2396 simply referring to the previous resolution in its preamble. resolution 2396 (on the iraqi investigative team) could have corrected the course initiated by resolution 2178 (2014) in certain aspects which had already been examined (and which 71 it should be borne in mind that certain acts of terrorism may constitute both war crimes and crimes against humanity, and in that sense they remain covered by resolution 2379 and, in that sense, also included in the work of the iraqi investigative team. 72 there are precedents that show how frustrating the denial of legal aid can be in cases as serious as genocide, even in cases where the alleged perpetrators are not covered by any type of immunity; see rwanda v. nteziryayo and others. (2017) and also ochab (2018, ‘known genocidaires’). foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 16 created the misleading concept of ftfs) and recalled consolidated norms relevant to its application. thus, the unsc could and should have gone further in collecting possible available measures related to prosecution, since there is a vast content of international legal obligations regarding them, unlike what happens with respect to those related to rehabilitation and reintegration. furthermore, this approach would have been preferable to prevent possible cases of impunity. however, the unsc prioritized a fundamentally preventive conception, emphasizing the need to address the threat represented by returnees, particularly in terms of the prospect of future terrorist attacks, but ignoring, instead, a returnees' likely or possible connection with war crimes, genocide and crimes against humanity73. in this sense, the resolution does not recall the existing state's obligations to tackle atrocity crimes, including, among others, duties of investigation and cooperation, some of which emanate from the geneva conventions and the international customary law. it should be remembered that in the case of serious breaches of the geneva conventions, the obligation of states to submit the case to their competent authorities for prosecution purposes, in accordance with the principle of universal jurisdiction (or, alternatively, to extradite to another jurisdiction in which sufficient charges have been charged) is not even restricted to cases in which the defendant is present in the territory of the state itself. the atmosphere prevailing internationally concerning ftfs seems to be, therefore, a limited one, focusing on the threat posed by their return (abad castelos, 2019). an accompanying strategic plan regarding the prosecution of atrocity crimes would undoubtedly provide greater coherence among these recent unsc resolutions between each other as well as with other obliged parameters to be taken into account74. indeed, one of the challenges regarding international criminal law for the coming years is to redefine a solid theoretical framework on its purposes, which are sometimes not clear, due to its decentralized construction, even advancing through leaps, especially in certain historical moments (olásolo and galain, 2018, pp. 46, 51 and 139). therefore, it is important to note that the fundamental normative criteria with respect to the atrocity crimes are clear. besides, it is necessary to keep in mind that the obligations regarding the prosecution of crimes of genocide, against humanity and war crimes continue to exist, and the fact that the unsc has been placing terrorism over crimes of atrocity in some resolutions never entails that these crimes may not be prosecuted as such. 73 see paras. 21-41. 74 these are undoubtedly significant in this regard. thus, unsc resolutions 2249 and 2253 reaffirm that ‘those responsible for committing or otherwise responsible for terrorist acts, violations of international humanitarian law or violations or abuses of human rights must be held accountable’. likewise, in another resolution adopted in 2018, the unsc refers to, among other goals, ‘promot(ing) accountability and the protection of human rights, and judicial and legal reform, in order to strengthen the rule of law in iraq, in addition to supporting the work of the investigative team established in resolution 2379 (2017)’; un doc. s/res/2421(2018), para. 2 d). montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 17 6. second approach to unitad: its key role to overcome serious obstacles in the field of criminal justice regarding the foreign terrorist fighters 6.1. the background regarding justice: an inextricable labyrinth it would be ideal if an international court, such as the icc, could take charge of prosecuting these crimes. yet, for varied reasons, the ways to achieve this are currently unworkable: iraq, the country where the crimes have been committed, has not even ratified the rome statute; nor does a referral by the unsc seem foreseeable either; furthermore, in 2015 the prosecutor denied the possibility of resorting to the principle of nationality by not using the link between the ftfs and their home states which are states parties to the rome statute75. most of the trials for the crimes perpetrated in iraq are taking place in that country, including cases involving ftfs. this situation presents major shortcomings and deficits. to begin with, there is no lack of paradox given that the iraqi courts are prosecuting the alleged perpetrators of mass atrocities when their courts do not even have jurisdiction over war crimes, crimes against humanity or genocide. therefore, far from applying the criminal rates corresponding to these international crimes, they are simply applying the criminal types connected with terrorist offences, where certain behaviors which occurred do not fit as they should (such as, and this is only a sample, the serious acts of sexual violence committed by daesh as a war tactic). it is true that a reform of the iraqi criminal code is being prepared in order to introduce international crimes (unami/ohchr, 2020, p.2), but by the time such international crimes are finally operational and applied by the courts, thousands of trials will already have been held. thus, ngos and media started warning about that condition of these trials do not meet the minimum standards for a fair trial. there have been prosecutions without even credible identifications of those accused (human rights watch. 2017, 2020)76 and without the necessary guarantees for the different stages of a trial, some being held in just ten minutes, according to various reports77. neither have minimum standards been met for the application of the death penalty, once it has been imposed. taking all these reasons into account, a number of official bodies affirmed the duty of third states to repatriate or request the extradition of their ftfs to prosecute them before national courts (report by the special rapporteur on extrajudicial, summary or arbitrary executions on her mission to iraq, 2018). 75 the icc prosecutor considered that isis is an organization led primarily by iraqi and syrian nationals (syria is not party to the rome statute either), in such a way that the ftfs would presumably not be among those most responsible for the serious crimes committed: icc, statement of the prosecutor of the international criminal court, f. bensouda, on the alleged crimes committed by isis (8 april 2015). available at https://www.icc-cpi.int/pages/item.aspx?name=otp-stat-08-04-2015-1. this decision has been the target of justified criticism; see zakerhossein (2016), pp. 613 ff. 76 hrw has also shown cases in which informants (whose identity was kept secret) proposed the inclusion of certain names due to unresolved disputes of a personal, family, tribal or territorial nature. 77 see klausen (2019). https://www.icc-cpi.int/pages/item.aspx?name=otp-stat-08-04-2015-1. foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 18 the united nations assistance mission for iraq, through its human rights office, and the office of the united nations high commissioner for human rights have published a report in 2020 showing that from january 2018 to october 2019, iraqi tribunals processed over 20.000 terrorism-related cases, with thousands pending at the beginning of 2020 (unami/ohchr, 2020, p. iv). in any event, this report covers the period from may 2018 to october 2019, after monitoring 794 criminal court hearings in different iraqi cities78. unami human rights officers monitored 794 hearings in criminal courts, attending hearings on a regular random basis. the majority of them (619 hearings; i.e., 78%) concerned defendants prosecuted under anti-terrorism laws and were used as the basis for the analysis and findings presented. these 619 terrorism-related hearings included 28 cases involving foreign defendants from 11 different countries of origin. unami findings show serious concerns that fair trial standards were not respected, in particular: violations of fair trial standards relating to equality before the courts; the overreliance on confessions, with frequent allegations of torture and ill-treatment inappropriately addressed by courts; prosecutions under the anti-terrorism legal framework (with a vague definition of terrorism and related offences) focused on “association” with or “membership” of a terrorist organization, “without sufficiently distinguishing between those who participated in violence an those who joined isil for survival and/or through coercion, and with harsh penalties that failed to distinguish degrees of underlying culpability”; the imposition of the death penalty after unfair trials; practical restrictions on the publicity of hearings, lack of victim attendance in proceedings and overreliance on a charge of “membership” of a terrorist organization. of the 317 terrorism-related trial hearings in federal courts attended by unami officers, which involved the pronouncement of sentences, judges decided the death penalty in 100 instances, which implied the 31,5%. setting aside other possible criteria which can also render subsequent executions arbitrary, it is relevant to keep in mind that the lack of respect of the rights to consular assistance of foreign nationals is one of them. although there is an agreement between unami and the supreme judicial council of iraq (2020) to jointly develop guidelines for the conduct of trials according with international human rights standards79, and many of the serious breaches shown are essentially related to the functioning of the courts, a significant part of them actually escape their control, since they have to do with the lack of a proper normative framework and deficiencies in the design of the anti-terrorist policy, among other factors. these concerns refer, therefore, to multilevel and complex problems, which, in any case, must be solved, at least if one hopes to eliminate possible motives for reviving conflict in the country. the very title of the report mentioned above, written by unami and ohchr, is highly illustrative: human rights in the administration of justice in iraq: trials under the antiterrorism laws and implications for justice, accountability and social cohesion in the aftermath of isil. precisely, among its conclusions it is worth mentioning the emphasis placed on “the root causes of violence and conflict in iraq” which “need to be addressed in terms of human rights violations suffered by all communities in the country over several 78 anbar, baghdad, basra, dhi-qar, dohuk, erbil, kirkuk, ninewa, and wassit governorates. 79 see eleventh report of the secretary-general on the threat posed by isil to international peace and security (august 2020), para. 50. montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 19 decades. this includes adherence to crucial elements of robust safeguards for detention, procedural guarantees and fair trials. this would demonstrate commitment to justice, while also constituting a necessary building block towards greater inter-community reconciliation and social cohesion” (unami/ohchr, 2020, p. 14). 6.2. unitad’s work may bring new significant tools to deal with the ftf’s prosecution for atrocity crimes beyond terrorist offences unitad has diversified its lines of investigation focusing on new issues in relation to crimes committed beyond those attacking yazidis and christians. thus, on the one hand, it has also drawn up extensive lines of enquiry concerning the crimes committed against the kaka’i, shabak and shia turkmen communities, as seen before, and on the other hand, it has opened other specialized thematic units related with the sexual and genderbased crimes and crimes against children. therefore, although the most advanced briefs currently being prepared by the team are still connected with the crimes against yazidi community (started in sinjar in august 2014) and the mass killing of unarmed iraqi air force cadets and military personnel from tikrit air academy (in june of the same year), which should be both finalized by june 2021, the other remaining initiatives are also being prioritized and will be vital to address grievances and resentment that could be conducive to terrorist recruitment. in march 2020, the religious leaders of the christian, kakai, shiite, sunni and yazidi communities adopted an interfaith statement on the victims of isis, emphasizing the strong collective repudiation of its ideology by all religious communities and highlighting the need for concerted action to hold isis members accountable for their crimes in accordance with the rule of law, based on the work of unitad. in coherence with that, the special adviser and head of the investigative team at the time, karim asad ahmad khan, has always been stressing, that the team will ensure that “there is no hierarchy of victim” in its approach to the implementation of its mandate80. furthermore, unitad has made tremendous progress on all three major fronts of research activities related to its core function, i.e., collection and storage of evidentiary material. thus, with respect to the documentary, testimonial and digital evidence collection, its achievements may be added to the general advances made in this area, as specifically those related to electronic media, including digital evidence obtained from open sources81, and the collection of evidence by new actors in scenarios of armed conflict, which will bring novelties for any potential domestic proceeding. in fact, the investigative team has initiated in april 2020 a major technical assistance project in strengthening the capacity of iraqi authorities, in order to comprehensively map and digitize documentary, digital and other material relating to crimes committed by isis. this information will be incorporated into its evidence base82. also very recently, the cooperation with the iraqi security services has enabled the extraction and analysis of data from mobile phones, sim cards and mass 80 see, for instance, his brief to the unsc on his fifth report security council open vtc. available at http://webtv.un.org/watch/investigative-team-to-promote-accountability-for-crimes-committed-by-da% e2%80%99eshisil-unitad-security-council-open-vtc/6215533377001/?term=. 81 see freeman (2020), pp. 48-67. 82 see unitad fourth report (may 2020), para 66. http://webtv.un.org/watch/investigative-team-to-promote-accountability-for-crimes-committed-by-da% e2%80%99eshisil-unitad-security-council-open-vtc/6215533377001/?term= http://webtv.un.org/watch/investigative-team-to-promote-accountability-for-crimes-committed-by-da% e2%80%99eshisil-unitad-security-council-open-vtc/6215533377001/?term= foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 20 storage devices previously used by isis members, which has ‘the potential to shift the paradigm’ for their prosecution, in iraq and globally83. it will allow, for instance, that ftfs may be geolocated retroactively, determining their whereabouts at the time of the alleged commission of international crimes. concerning the excavation of mass graves, unitad has conducted a comprehensive review of priorities in cooperation with the iraqi government and the international commission on missing persons, leading to the adoption of a common mass graves excavation strategy in 202084. dealing with the storage, analysis and management of evidence, the investigative team has also achieved new progress in collaboration with the united nations international computing centre and the microsoft corporation tech for social impact and artificial intelligence for humanitarian action initiative85. since unitad was established in september 2017, has issued five successive reports (being the first one from 2018). a chronological reading of these documents is eloquent enough, in particular since the team began to work on the ground. even despite the time lost by the covid-19, and the consequent stoppage of trips and operations, the innovative approach that it has managed to introduce in the implementation of its mandate, has led to a significant and meritorious evolution. thus, in synthesis, it is worth noting its vision and strategic action, in continuous progress, which has allowed it to add new crucial lines of research, as we have already seen, and more specifically, to develop the following pillars of action currently underway, which are "mutually supportive": “(a) thematic and overarching case briefs corresponding to the key investigative priorities of the team that describe, explain and analyse evidence collected, and offer a legal characterization of offences disclosed by that evidence; (b) individual case files in relation to particular suspects identified by the team as being responsible for those crimes; and (c) the targeted delivery of support in response to requests from domestic authorities”86. through the coordinated implementation of these three pillars, unitad seeks “to maximize the relevance of its work to ongoing domestic proceedings and establish a clear framework for the allocation of resources through to the completion of its mandate”87. firstly, the case briefs are crucial to build a bridge between the terrorism-related offences and the atrocity crimes as unitad will address, for instance, the existence of a requisite as of a widespread and systematic attack against a civil population in the case of crimes against humanity. therefore, this step represents a key to alleviate the existing gap between, on the one hand, the crimes related to terrorism that the security council focused on when confronting the phenomenon of foreign terrorist fighters, particularly in its 83 ibid., para 108. 84 see unitad fifth report (november 2020), para 56. 85 see ibid., para 67. 86 ibid., para 21. 87 ibid. montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 21 resolution 2178 (2014) and, on the other hand, war crimes, against humanity and genocide, which constitute the leitmotif of unitad's work. consequently, unitad's work can be crucial to bridge the gap and smooth out inconsistencies highlighted on previous pages. secondly, in addition, the team goes even further, addressing the production of case briefs addressing the contextual basis of crimes under investigation. in this work, it has come to develop a wide range of individual case files “detailing the evidence linking specific members of isil to the crimes described in those briefs”. unitad is focusing its efforts on those “most responsible for the crimes committed” by isis in accordance with its mandate, “including regional or mid-level commanders and those responsible for the ordering and commission of such acts”88. also, the team has recently reached an agreement with the iraqi supreme judicial council to support the joint development of case files with iraqi investigative judges, in anticipation of the future legal basis in iraq for the prosecution of crimes committed by isis as war crimes, crimes against humanity and genocide89. this seems quite significant since there are still foreign fighters in iraqi custody. thirdly, it is necessary to keep in mind the ability and willingness of unitad to give a targeted support responding to requests for assistance in ongoing prosecutions against foreign fighters. it is precisely in relation to this third point where the greatest potential of unitad with respect to foreign terrorist fighters can be displayed, insofar it will be able to respond to requests made by other third national authorities, other than iraqis. in fact, eight european countries where legal proceedings are being carried out against isis members for international crimes have asked the team for help to date. in response, it has strengthened the forms of assistance which is able to provide, including: “cross-checking evidence held by domestic authorities against the evidence holdings of the team; identifying and interviewing witnesses and survivors who are capable of providing accounts relevant to ongoing investigations by domestic authorities; and pursuing the targeted collection of evidence relevant to such proceedings, in consultation with domestic authorities”90. however, to exercise jurisdiction by third countries, obstacles of various kinds need to be overcome, starting by those related to the repatriation of ftfs in the case of the principle of nationality91. indeed, there are new opportunities in matter of evidence, as we have seen above, but reluctance from third states still prevails. in addition, the path of universal jurisdiction will continue to be open (and the innovations regarding evidence might also be welcome here), although even greater resistance from governments must be overcome. despite a certain upturn can be observed thanks to the positive action of countries such as germany, sweden or finland, precisely in relation to crimes committed in syria and iraq (trial international, universal jurisdiction annual review, 2020), there 88 ibid., para 30. 89 according to the schedule anticipated by unitad, the first case files produced under such arrangement will be completed in the second half of 2021; see ibid, para 33. 90 ibid., para 36. 91 as it has been said, ‘the term foreign fighters perpetuates the notion that foreign fighters are not part of our society, but nothing can be further away from the truth. these foreign fighters are foreigners in iraq and syria, but they are our own citizens’ (mehra and paulussen, 2019). foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 22 is no indication of substantial change so far, at least implying a new systematic use. in any case, finland is one of the (eight) states that is using this hotline with unitad, as revealed in its latest reports (although there are no references with respect to the other states which are also involved). along this line the investigative team keeps striving to promote accountability globally for acts that may constitute atrocity crimes, while protecting the interests of survivors, as it is stated in its mandate. taking all the above into account, it is necessary to highlight that the existence of two different track approaches to prosecution, i.e., terrorism and atrocity crimes at the international level, should not be a problem as such in practical terms, due to the fact that both ways are compatible between each other and even complementary. thus, unitad can help to overcome the insufficiencies of a prevalent focus on terrorism at the international level, allowing national authorities to go beyond the offences merely linked with terrorism. its mission can be vital as what it gathers evidence not only collected by itself, but also by other actors, both those who have been working in the field (such as the armed forces or ngos) and who are able to provide any valuable data (due to the experience of any negative effect, being victims or witnesses, or through any other kind of access), ensuring that the database of evidences is as complete as possible with respect to the crimes committed by isis in iraq. furthermore, the fact that unitad's work is focused on atrocity crimes allows national jurisdictions to be the beneficiaries of an enormous potential. in fact, in the absence of unitad, it would be impossible, or at least very difficult, that most of the evidence obtained could reach national jurisdictions, including the iraqi one, which is, after all, its first recipient. therefore, it is necessary to contribute to the dissemination of unitad's work in the judicial spheres of third states. this task is necessary not only in the states in which territory there are ftfs (mostly, of their nationality or with residence there), but also beyond, precisely because of the natural connection of the atrocity crimes that must be prosecuted with the principle of universal jurisdiction. 7. conclusions while, on the one hand, unsc resolution 2379 creates the iraqi investigative team, in order to collect, preserve and store evidence on the atrocity crimes committed there, on the other hand, the obligations derived from unsc resolutions 2178 and 2396 focus on ftfs and terrorism-related crimes, neglect the strategy for accountability for the most serious crimes. in particular, a specific discrepancy is observed, especially between resolution 2379 and 2396. despite the fact that both were adopted almost at the same time, and having to a certain extent the same object (the latter provides measures related to the prosecution of returnees, among others), it is regrettable that their contents are actually disconnected. by focusing attention on the ftfs from a primarily anti-terrorist perspective, the unsc neglects the articulation of means to make their responsibility effective for atrocity crimes. furthermore, this contributes to the confinement of agendas (both national and international) within security aspects, at the cost of other equally necessary dimensions. montserrat abad castelos the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 23 indeed, the aforementioned discordances and tensions tend to exacerbate the problems of the antiterrorist sector of international law, by deepening the ongoing securitization process. furthermore, those inconsistencies contribute to the political entanglement in which the situation is trapped regarding many ftfs. there are no magic formulas to ensure prosecution, not even of alleged perpetrators of crimes as heinous as the genocide against certain communities. we must be aware that geopolitical balance together with national interests will prevent a possible transit along certain paths. political will is essential for everything at the international level, even for issues where a priori it seems to go unnoticed. inconsistencies such as those detected in the legal sphere should be corrected in order to avoid further possible inconsistencies between the objectives of international law, since this order pursues two parallel fights, on the one side, against terrorism, and, on the other, against impunity for atrocity crimes. notwithstanding, overcoming such inconsistencies seems an especially difficult task since these problems do not arise from carelessness (which could be remedied as soon as the alarm sounds), but rather from an intense obstinacy impregnating a number of strategies which deal with terrorism. for this reason, a quiet reflection is required not only about such causes, but also about other broader issues with which they are connected, because, in the end, the greater issue here is to meditate on the future that we all want for society. the society which embraces all and is for all as we live together in an global space where political borders are in many ways accessories or even irrelevant. consequently, although not all of us want the same, those who use legal tools will have to remain alert to detect possible violations and contradictions on a daily basis, as well as to explore optimal paths and convergence points to stick to in the fight both against terrorism and against impunity for serious international crimes. synergies need to be enhanced. in addition, another idea needs to be introduced that goes beyond the legal sphere. it is perhaps obvious, but it often seems to be ignored or undervalued in political decisions made in reality. there is a need to take into account that the factors that gave rise to the emergence of isis (and to the armed conflicts originated to confront it) have yet to be resolved. they are still there. consequently, despite the military defeat of the isis' political-administrative infrastructure in iraq and syria, fertile ground remains for its resurgence. to which other equally disturbing elements must be added: the lack of an adequate transitional justice in iraq; the growing social and political instability which iraq is experiencing; the fact that a considerable number of ftfs are not detained, as well as the presence of more weapons in the region than ever before; and the depletion of all kinds of human and financial resources destined to combat terrorism due to the covid-19 pandemic at the same time that isis could start to bounce back in iraq and syria. this vicious circle leads us to a scenario of nightmare proportions. as long as the inconsistencies detected continue, national political authorities should carry an extra burden on their shoulders, being more focused on repatriation efforts of nationals and ensuring possible avenues for future prosecutions on the basis of national and universal jurisdiction. for that, it is necessary, and possible to take advantage, on the one hand, of the global condemnation of isis, and, on the other hand, of the unitad’s strategic and valuable task. foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis accountable for war crimes, crimes against humanity and genocide committed in iraq the age of human rights journal, 16 (june 2021) pp. 1-30 issn: 2340-9592 doi: 11.17561/tahrj.v16.6302 24 despite the fact that unitad was born weighed down by serious limits (such as its restricted mandate, isis crimes-related only, and its subordination to the iraqi government), the impeccable and diligent exercise of its mission is allowing to overcome certain obstacles and strengthen a path that could, and should, be used by third states in relation to foreign terrorist fighters, both through the jurisdictional principles of nationality and universality. although there are enormous challenges ahead, the progress in gathering evidence on different planes and the team's action to promote worldwide accountability are so far meritorious and solid. now the ball is also in the court of third states: through their governments (to repatriate ftfs, or even to extradite them) or / and their tribunals (to exercise jurisdiction) in relation to atrocity crimes, and not just with regard to offences of terrorism. an already existing bridge should be used, since unitad is able to provide valuable evidence and tools which may be central in prosecuting ftfs in third countries. indeed, the capitalisation of unitad’s work, taking advantage of its data, knowledge and fruits by jurisdictions of third states, could help to eliminate, or at least to soften, the gap between the two tracks referring ftfs: one related to prosecution of terrorism crimes and another connected with atrocity crimes. harnessing this potential could therefore contribute greatly to raising the level of the track related to the prosecution of atrocity crimes to the place it deserves in practice (and not only in the theory of international law). but for this it is necessary that unitad's work be more widely disseminated and well received in domestic frameworks, particularly in the judicial domain. justice needs to be promoted because there can be no peace without justice and it is a plausible way to plant seeds that could generate a virtuous future cycle for the protection of human rights and social cohesion, in iraq and beyond, thus preventing further conflicts. references abad castelos, m. 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(2018), ‘the iraq investigative team and prospects, for justice for the yazidi genocide’, 16 journal of international criminal justice. available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3099932 https://doi. org/10.2139/ssrn.3099932 van schaack, b. (2018), ‘un releases guidelines for team investigating isis crimes in iraq. death penalty debate dodged’, february 19, 2018, just security. available at https://www.justsecurity.org/52628/iraqi-investigative-team-termsreference-released-death-penalty-debate-dodged/ van wilgenburg, w. (2019), ‘judge: belgium should return is-children immediately’, kurdistan 24, december 26, 2018. available at http://www. kurdistan24.net/en/news/1654bb2d-679d-439b-94c6-7122faff4456 zakerhossein, m.h. (2016),‘to bury a situation alive – a critical reading of the icc prosecutor’s statement on the isis situation’, international criminal law review, vol. 16, pp. 613 ff. https://doi.org/10.1163/15718123-01604007 received: 28th january 2021 accepted: 21st april 2021 https://doi.org/10.2139/ssrn.3099932 https://doi.org/10.2139/ssrn.3099932 https://www.justsecurity.org/52628/iraqi-investigative-team-terms-reference-released-death-penalty-debate-dodged/ https://www.justsecurity.org/52628/iraqi-investigative-team-terms-reference-released-death-penalty-debate-dodged/ http://www.kurdistan24.net/en/news/1654bb2d-679d-439b-94c6-7122faff4456 http://www.kurdistan24.net/en/news/1654bb2d-679d-439b-94c6-7122faff4456 https://doi.org/10.1163/15718123-01604007 foreign terrorist fighters and the un investigative team to support domestic efforts to hold isis ac abstract 1. introduction 2. dealing with the vast numbers of people who travelled to join is in iraq (and syria): the establ 3. facing a bigger challenge?: the return of ftfs 4. first approach to unitad: its establishment, strategic focus and early work 5. highlighting some basic premises and priorities, but also relevant problems 5.1. assumptions, concerns and difficulties in a changing scenario 5.2. gaps, inconsistencies and tensions between unsc resolutions 6. second approach to unitad: its key role to overcome serious obstacles in the field of criminal j 6.1. the background regarding justice: an inextricable labyrinth 6.2. unitad’s work may bring new significant tools to deal with the ftf’s prosecution for atrocity 7. conclusions references 1 the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 translation, power hierarchy, and the globalization of the concept “human rights”: potential contributions from confucianism missed by the udhr 1 sinkwan cheng 2 abstract: this essay strikes new paths for investigating the politics of translation and the (non-) universality of the concept of “human rights” by engaging them in a critical dialogue. part i of my essay argues that a truly universal concept would have available linguistic equivalents in all languages. on this basis, i develop translation into a tool for disproving the claim that the concept human rights is universal. an inaccurate claim to universality could be made to look valid, however, if one culture dominates over others, and manages to impose its own concepts and exclude competitors. part ii explores how human rights, initially a modern western concept, became more and more universalized as a result of the global reach of western political and economic power. i attempt to shed new light on the subject by investigating the role of translation in bringing about the global hegemony of western legal and political languages and concepts. since translation always involves a choice of foregrounding one of the two languages and cultures involved, the translator is a power broker who can promote one voice at the expense of the other. my examples for conducting this investigation are the key contributions made by china and the west to the drafting of the udhr: with ren and rights representing respectively the west and china’s proposed solutions to crimes against humanity in the immediate aftermath of world war ii. while the concept rights became increasingly assimilated into the chinese language along with her repeated defeats by colonial powers (and was already firmly established in the chinese vocabulary by the time of the drafting of the udhr), ren by contrast has never been included by any western language and culture. keywords: translation, human rights, udhr, confucianism, ren, p.c. chang, vattel, international law, opium wars, voltaire summary: introduction; part i. linguistic resistance from a number of languages to the modern western concept “rights” translation as a tool for disproving the universal claim of “human rights”; part ii. translatio imperii and translatio studii: colonialism and the universalization of “human rights” via the politics of translation; conclusion. 1 i heartily acknowledge my great debt to joan scott for her kind encouragement and most insightful feedback. special thanks need to be conveyed to the center for the humanities and the college of east asian studies at wesleyan university for their generous fellowship support that made this project possible. i also wish to express my gratitude to ramón ruiz ruiz, peter beattie, jonathan luftig, and my two anonymous reviewers for their suggestions. 2 european institutes for advanced study senior fellow at the swedish collegium for advanced study, 2015-16. (sinkwancheng@gmail.com). translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 2 introduction this essay strikes new paths for investigating the politics of translation and the (non-) universality of the concept of “human rights” by engaging them in a critical dialogue. the essay is divided into two parts. part i begins with my argument that a truly universal concept would have available linguistic equivalents in all languages. on this basis, i develop translation into a tool for disproving the claim that the concept “human rights” is universal. part ii turns from contesting the “universality” of “human rights” to analyzing the universalization of this concept. an inaccurate claim to universality could be made to look valid if one culture dominates over others, and manages to impose its own concepts and exclude competitors. this section of my paper investigates how “human rights,” initially a modern western concept, became more and more universalized as a result of the global reach of western political and economic power. i attempt to shed new light on the subject by investigating the role of translation in bringing about the global hegemony of western legal and political languages and concepts. since translation always involves a choice of foregrounding one of the two languages and cultures involved, the translator is a power broker who can promote one voice at the expense of the other. my examples for conducting this investigation are the key contributions made by china and the west to the drafting of the udhr: with “rights” and ren representing respectively the west and china’s proposed solutions to crimes against humanity in the immediate aftermath of world war ii. while the concept “rights” became increasingly assimilated into the chinese language along with her repeated defeats by colonial powers -and was already firmly established in the chinese vocabulary by the time of the drafting of the udhr -ren by contrast has never been included by any western language and culture. my essay contrasts the assimilation of “rights” into confucian cultures to the continuing resistance of western languages to ren. that contrast allows me to trace the power differentials between the east and the west from the late nineteenth to the twentieth century. part i. linguistic resistance from a number of languages to the modern western concept “rights” translation as a tool for disproving the universal claim of “human rights” the more universal a concept, the more readily one should be able to find linguistic equivalents in all languages. a concept which is truly universal would have a corresponding term available in every language. the concept of “rights” could not be universal because a number of chinese and japanese scholars encountered tremendous difficulties translating “rights” into their national languages in the nineteenth century. nor could linguistic equivalents for the liberal notion of “rights” be found in a variety of classical languages – from classical greek, latin, hebrew, and arabic to old english. the claim that “human rights” is universal does not seem to be able to survive the test of its sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 3 translatability into a number of pre-modern languages – that is, languages before the global reach of capitalism and imperialism. as i will demonstrate in part ii, the ubiquitousness of the concept of human rights in the global age is more the product of translatio imperii than an indication that the concept is “intrinsic to human imagination and understanding.” 3 as late as 1948, “rights” came across to the chinese as a selfish concept, grounded as “rights” are in the protection of the self(-interest) and the sense of “what others owe me.” 4 although p.c. chang – the chinese representative in the drafting of the udhr – was too polite to voice this explicitly, his speeches from time to time suggest such a nonwestern unease with “rights.” in the discussion of the udhr on october 6, 1948, he publicly stated that “the aim of the united nations was not to ensure the selfish gains of the individual but to try and increase man's moral stature. it was necessary to proclaim the duties of the individual for it was a consciousness of his duties which enabled man to reach a high moral standard” (chang 208; my italics). on october 7, he again observed that “the various rights would appear more selfish if they were not preceded by the reference to `a spirit of brotherhood.’ similar reasoning applied to article 27 [the present article 29], which contained a statement of duties” (chang 209; my italics). to prove that “rights” did not exist within the chinese social imaginary prior to the late 19 th century, and that the concept entered the chinese weltanschauung only as a result of western colonialism, let me analyze two key chinese translations of “rights” and their reception history. i.1. chinese reception history of “rights”: the two key chinese translations there are two key chinese translations of “rights”: yuan dehui’s li (理) and w.p.a. martin’s quanli (權利). i.1.1.the first key chinese translation among the many translations of emer de vattel’s le droit des gens, the one with the most profound historical consequence for china and the world is perhaps the version by 3 see sinkwan cheng, “confucius, aristotle, and a new `right’ to connect china to europe.” 4 “rights” has no universal acceptance even in the modern west. the self-regardedness of “rights” certainly does not find a very sympathetic audience among the communitarians. charles taylor, for example, refers to “a long tradition in the west warning against pure rights talk outside a context in which the political community has a strong positive value. this `communitarian’ theorizing has taken on a new urgency today because of the experience of conflict and alienation and the fraying of solidarity in many western democracies” (106). translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 4 yuan dehui (袁德輝) which he produced when serving as assistant to lin zexu (林則徐), the viceroy of guangdong and guangxi who ordered british contraband opium to be burned in 1839. 5 prior to the final military confrontations, lin zexu studied peter parker and yuan dehui’s translations of le droit des gens by vattel. parker’s translation being quite incomprehensible, lin turned to yuan for another rendition. yuan translated “rights” as 理 (“the reasonable”). 6 the resistance of the traditional chinese language and culture to recognizing the protection of self-interest as a political virtue, combined with yuan's attempts to preserve the positive connotations assigned by the west to the concept, resulted in yuan’s rendition of the western concept “rights” as “reasonable” and his downplaying “rights” as referring to individual entitlements. the lack of a chinese equivalent for “rights” in the nineteenth century and before resulted in a translation that led china decide to take a strong stance against the british regarding opium – convinced as the country was during this period that her position would be supported even by europe’s “international law.” it would not be an exaggeration to trace the first opium war back to the clashes between two civilizations’ understanding of the notion of “rights” – more accurately put, the clashes between the western notion of rights and the struggle of china to understand that foreign concept – materialized as the clashes between the british perception of its “right” to free trade, 7 versus the chinese understanding of what ought to be “the code of reasonable conduct” governing operations in the international community. peter parker, 8 the first person commissioned by lin to translate vattel, had likewise ill success with finding a chinese equivalent for “rights.” he was compelled to reformulate “right” as “desire” or “wish to” (欲). the expression “nature gives men a right to employ force” was translated by parker as “all human beings by nature desire to fight (人人皆欲 5 yuan dehui worked for several years as an imperial interpreter and translator of western languages for the court of tributary affairs (理藩院). he studied latin at the roman catholic school in penang and at the anglo-chinese college (英華書院) in malacca. in 1839, yuan became lin zexu's assistant in charge of foreign affairs. 6 “the reasonable” is far from being an adequate translation for li. li infuses the universe and governs all beings in the cosmos (not just human beings). as such, it is associated with the cosmic order (dao). this sense is especially strong in literary chinese—that is, the kind of chinese writing in use up till the early twentieth century. a closer but more clumsy rendition of li would be “the cosmic principle of rightness” or “the cosmic principle of moral reason.” for the important role of li vis-à-vis philosophical and political discussions of reasonableness and legitimacy in chinese history, see jin guantao and liu qinfeng, 11-69. see also stephen angle’s “neo-confucianism” for an annotated bibliography of several scholarly examinations and various english translations of this concept. 7 see sinkwan cheng, “confucius, aristotle, and a new `right’ to connect china to europe.” 8 peter parker (1804-1888) was the first full-time protestant medical missionary to china. http://en.wikipedia.org/wiki/latin http://en.wikipedia.org/wiki/penang http://en.wikipedia.org/wiki/ying_wa_college http://en.wikipedia.org/wiki/malacca http://en.wikipedia.org/wiki/lin_zexu sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 5 戰),” 9 “for the preservation of their rights” as “wishing to secure themselves and protect their property (欲自保其身自護其地).” it is significant that parker felt pressured to translate “rights” as “desire” or “wish”, because rights is always tied to self-assertion which ultimately is associated with the instinct for self-preservation, before which all other concerns have to give way, as was already made evident by the arguments of hobbes and locke. i.1.2.the second key translation if yuan’s translation was key in the impact it made on chinese and world history, the translation produced by the american presbyterian missionary w. a. p. martin was key in that it eventually became embraced as the standard rendition for “rights” in both chinese and japanese. in his translation of henry wheaton’s elements of international law – published as wanguo gongfa 萬國公法）in 1864 – martin consistently used quanli (權利) or its abbreviation quan (權) to translate “rights.” quanli (權利) in chinese means “power and profit/interest.” what’s worth noting is that both peter parker and w. a. p. martin – missionaries from america – did not find anything wrong with the self-regardedness of “rights,” evident in how this self-orientation is well preserved in parker’s translation of “rights” as yu (desire) and martin’s rendition quanli (power and profit/interest). this did not just have to do with individual rights being enshrined as part of the founding spirit of america. the association of rights (in the sense of entitlement) 10 with power and profit could also be traced back to discussions among medieval theologians and jurists of property (dominia) and a range of related concepts such as facultas and potestas – an association that must have been familiar to both missionaries. 11 furthermore, ever since the subjective meaning of “rights” started to gain momentum around the time of the spanish expansions of trade and territories in the 16 th century, the protection of self-interest became increasingly sanctified and even moralized. 12 9 all translations from chinese texts are mine. 10 “right as entitlement” is known as “subjective right,” in contrast to “right as rectitude” or “objective right.” the terms “subjective right” and “objective right” have become especially popular since the late 1970s scholarship on the medieval natural law tradition. see martti koskenniemi’s “rights, history, critique,” annabel brett’s liberty, right and nature, richard tuck’s natural rights theories, brian tierney’s the idea of natural rights, and sinkwan cheng’s “confucius, aristotle, and a new `right’ to connect china to europe.” 11 the original semantics of subjective right has been missed by existing scholarship on martin’s rendition. quanli has been repeatedly taken to be a “mistranslation” by all publications i have read in east asian studies, law, politics, and philosophy. 12 françois suarez, for example, declares ius as "a kind of moral power [facultas] which every man has, either over his own property or with respect to that which is due to him” (de legibus, i, ii, 5). translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 6 by contrast, self-interest was anything but a virtue according to pre-modern chinese ethics and politics. in contrast to duty which concerns what i owe others, rights pertain to what others owe me. confucian ethics and politics center on duty and not rights, and yuan had to empty his rendition of connotations of self-regardedness in order to preserve the positive overtone of “rights” in the west. lin zexu himself adopted the term li in his letter to queen victoria urging her to help stop the british contraband opium trade in china. however, the opium wars proved the british’s “right to free trade” to be anything but li – that is, anything but “reasonable.” not surprisingly then, neither the concept “right” nor yuan’s confucianized translation caught on in the chinese imagination. it took about six decades after yuan’s translation for the term “rights” to make an appearance in chinese dictionaries, and when it finally did, it was martin’s rather than yuan’s rendition that got adopted by the chinese. that the chinese should understand the western notion of “right” as martin’s “power and interest” rather than yuan’s “reasonable” was perhaps no accident, given that the west blasted its way into china with its “right to free trade.” the chinese’s understanding of western right as might was further reinforced by the introduction of social darwinism into china and influences from japan that embraced martin’s translation more readily than china. china eventually adopted the concept “right” not because it was regarded as a universal moral truth like li, but because it was seen as an instrument to defend china’s “power and interest” in the age of high imperialism where only the strong seemed to stand a chance to “survive.” martin’s translation of wheaton was first published in 1864. but only a few dictionaries of the chinese language published before 1903 include entries on “rights”/quanli. by contrast, “all dictionaries published after 1908 include the ‘rights’ lexicon” (svarverud 141-42). 13 the sudden popularity of the term no doubt had to do with the chinese’s fascination with japan’s victory in the russo-japanese war (1904-05). this was the first major asian military victory over a european power in the modern era – all the more inspiring for the chinese was that japan, which was forced into signing different unequal treaties with western powers as late as the 1850s, could emerge as the victor after its aggressive westernization programs – that is, after japan’s adoption of western law and politics in addition to western technologies. 14 china and japan having both suffered under 13 svarverud points out one exception -the vocabulary and handbook of the chinese language, edited by justus doolittle and published in two volumes in 1872–1873: “doolittle had the translator w. a. p. martin write a section on political and legal terms in chinese, and martin naturally included his own terminological innovations on ‘rights’ which were apparently still not current in the chinese common language” (142). 14 china’s enthusiastic embrace of the japanese model of modernization in this period was part and parcel of the particular stage in the evolvement in china’s attitude toward westernization. china’s modernization did not begin by embracing both western political ideas and western technologies. during the self-strengthening movement （洋務運動 or 自強運動,1861–1895), scholars and government officials such as feng guifen (馮桂芬), xue fucheng (薛福成, and zhang zidong（張之洞）advocated adopting western sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 7 western imperialism, it is not surprising that the chinese upheld japan’s modernization program as the model to emulate. following japan, china began to adopt not just western technologies but also western social and political ideas. it was in such cultural and political climates that china opened up to quanli – martin’s chinese translation having already been adopted by japan before its triumph in “the first great war of the 20 th century.” it is worth noting, however, that when the concept “rights” was finally embraced by the chinese, it was not associated with civil liberties, nor was it understood as a universal principle with moral overtones as projected by the modern west. rather, the concept was grasped primarily as an instrument to save china from subjugation. as wang gungwu, nie jiangqiang, and a number of scholars have pointed out, the term “rights” was mainly comprehended by the chinese at this time in the collective sense – as first and foremost the rights of the chinese nation rather than individual rights. 15 wang remarks that “in the use of ch’üan [quan] in min-ch’üan [minquan] (people's rights), this generation of writers gave emphasis to the political power due to the people, their share in determining the destiny of china, their role, in fact, in saving china. thus, although they used min-ch’üan [minquan] to translate democracy, there was little hint of civil liberties in the word that would link people's rights with the idea of natural or legal rights so prominent in western usage” (180; my italics). that the chinese did not perceive “right” as a universal moral principle is evident from their gravitating toward quanli (power and interest) rather than li (the reasonable/in accordance with the cosmic principle of moral reason) as the chinese rendition for “rights.” it is well-known that quan was used by the chinese legalists to refer to “the standards fixed by the ruler alone” (shang 24; duyvendak 260). far from being universally available, the power associated with quan “has to be grasped.” as wang gungwu correctly points out, technologies while maintaining traditional chinese social and political structures. this principle, first proposed by feng in 1861, was most famously summed up by zhang’s 1898 formula “chinese learning as the guiding principle (ti); western learning for practical utility (yong) （中學為體，西學為用）” (“on the necessity to study hard（勸學篇)”). ever since china’s defeat by france in indo-china in 1885, more and more literati realized that changes more fundamental than those of the self-strengthening movement would be necessary to save china, and that china needed to adopt western infrastructures -such as a new governmental structure, educational system, and improved commerce -in order to support scientific and technological development. this was the westernization program championed during the hundred-day reform which lasted from june 11 to september 21, 1898. the failure of this reform was soon to be succeeded by the new culture movement (1915-1921) which called for a wholesale rejection of traditional values and the regeneration of china through adopting practices associated with western civilization, especially democracy and science. the assimilation of quanli into the chinese vocabulary started around china’s transition from the hundred-day reform to the new culture movement. see sinkwan cheng, “translatio temporis and translatio imperii: from `wenming versus civilization’ to `wenming as civilization.’” 15 wang gungwu points out that other concepts of group rights also emerged, such as the rights of scholar literarti, merchant guilds, local organizations, and extended families (180). translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 8 “rights” was embraced in two ways by the chinese literati at the end of the 19 th century. both, however, converged in eyeing rights as an instrument to help rescue china from subjugation: there were those like k'ang yu-wei [kang youwei], liang ch'i-ch'ao [liang qichao] among the reformers in 1898, and sun yat-sen and chang ping-lin among the revolutionaries before 1911 who were primarily concerned with china's power to recover its sovereign rights; and there were many conservative mandarins of the ch'ing court who shared that concern in their own way. there were others, more philosophically inclined, like yen fu [yan fu] and t'an ssu-t'ung [tan sitong], who understood something about the importance of individual rights but saw them ultimately in terms of their contribution towards strengthening china. yen fu, in particular, admired the energy that individualism could generate and wanted to see it harnessed towards collective ends. in other words, for both groups, rights represented the kind of power and energy china needed. and because of this, it was easy to see such rights not as universal principles, but as instruments, as means to a higher end, this end being the regeneration of china. (179; my italics) i.2. japanese reception of “rights” because “rights” is not compatible with confucian understanding of virtue, the difficulties of finding a positive linguistic equivalent for “rights” plagued not only the early chinese but also the early japanese translators. although the japanese adopted western legal and political ideas much sooner than the chinese, the reception of the concept was not without resistance even in japan. in japan as it was in china, the translation by martin rather than the rendition by yuan eventually won out. “rights” was first introduced to japan via nishi amane (西周) ’s 1868 japanese translation of martin’s wan guo gong fa – that is, martin’s chinese translation of henry wheaton’s elements of international law. nishi also adopted martin’s 權利 as the japanese equivalent for “rights.” 16 nishi’s adoption was put to use in the same year by dr. m. tsuda in his western public law theory. it would, however, take some time before martin’s coinage would gain wide acceptance in japan. in fact, yuan dehui’s translation of “rights” as “the reasonable” (理), rather than martin’s rendition, was adopted by influential publications such as fukuzawa yukichi 福澤諭吉’s conditions in the west (seiyō jijō 西洋事情; published in 1870). james hepburn's a japanese and english dictionary (first published in 1867) did not 16 權利 which has been accepted as the standard translation for “rights” in both china and japan is pronounced differently in the two languages: as quanli in chinese and kenri in japanese. sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 9 include the term kenri for 'rights' until its third edition in 1886. also, early meiji texts rendered ri in kenri in two different ways, sometimes as martin’s 權利 and at others as yuan’s 理. the difficulties of finding linguistic equivalents in pre-modern chinese and japanese for “rights” reveal an incommensurability between “rights” and confucian values. in other words, the concept of “rights” cannot be claimed to be universal. part ii. translatio imperii and translatio studii: colonialism and the universalization of “human rights” via the politics of translation the resistances encountered by translators when attempting to render “rights” into classical languages both east and west – including classical greek, latin, hebrew, arabic, old english, chinese, and japanese – prove hasty the claims that “human rights” is universal and that the udhr has welcomed within its embrace a variety of cultural traditions including confucianism. while “rights” had no eastern counterpart before the second half of the 19 th century, the confucian concept ren has no counterpart in western languages. it is worth noting, however, that a significant divergence started to emerge between the predicaments of “right” and of ren on the world stage along with the triumph of western colonialism. the linguistic resistances of pre-modern chinese and japanese to modern western “rights” broke down after the two countries got defeated by western colonial powers. by contrast, the confucian ren remains as much an “outsider” to western languages today as it was in previous centuries, and this despite the claim of the udhr to be a “universal declaration” and its professing to have “included confucian perspectives” by virtue of the membership of a chinese representative on its drafting committee. translation provides one key to uncovering why ren never got accepted into western languages and cultures despite the aspiration of the udhr to be universal. ren as proposed by the chinese representative on the udhr drafting committee was glossed by his colleagues as “conscience” and “brotherhood”; and when the declaration was translated into chinese, ren even disappeared completely and was replaced by western concepts. this part of my essay will begin with the mistranslation by the udhr committee of the concept ren contributed by the chinese representative. it will highlight the inaccurate claim of the udhr to universality by revealing the incommensurability between chinese and western ethics and politics at the very founding moment of the declaration. it will also uncover the power differential impacting both the drafting and the dissemination of the udhr, such that in the translation processes, the chinese voice was drowned out and the western voice reigned supreme – and this continued even in the chinese translation of the declaration targeting chinese readers. translation, as an activity of transferring messages from one translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 10 culture to another, always involves a choice of allowing which of the two voices to dominate; as such, translation choices are both constituted by, and constitutive of, the power relations between two cultures. chang’s futile campaign for the inclusion of ren in the udhr is just the tip of an iceberg, but is nonetheless revealing of how translation has been one of the tools contributing to the “globalization” of western legal languages and concepts in the aftermath of colonialism. ii.1. p.c. chang’s proposal of including ren in the udhr and the eventual exclusion of that concept through translation the commission of human rights held its first session in the un’s temporary quarters at lake success, new york in january, 1947. eleanor roosevelt was elected chair, with p.c. chang (張彭春) – head of the chinese un delegation – elected vice chair. charles malik representing lebanon was the rapporteur responsible for summarizing and preparing official reports on the committee’s work. out of the 58 member states of the united nations in 1948, only the following assumed a major role in the drafting of the udhr: eleanor roosevelt (u.s.), peng chun chang (chinese), rené cassin (french), john humphrey (canadian), and charles malik (a western-minded lebanese). 17 jacques maritain, a frenchman, also played a conspicuous role in the drafting from time to time. chang, the real minority among the framers, 18 had to repeatedly remind the committee that 17 i respectfully disagree with glendon’s description of malik as the “chief spokesman for the arab league” (glendon xx). despite malik’s ethnic origin, he constantly upheld western rather than arab values, and his arguments were always drawn from the western tradition, such as his insistence on grounding human rights in thomism. in a footnote to the entry for october 11, 1948, for example, the editor john hobbins reports that at a four-person meeting of the officers of the commission on human rights held in february 1947, "[charles] malik (lebanese philosopher and diplomat) believed that the question of rights should be approached through christian precepts, especially the teachings of st. thomas aquinas. chang argued the necessity of a more universal approach” (hobbins, vol. 1: 55-56, 58, and 88). john p. humphrey also noted malik’s rigid belief in natural law: “malik … `believed in natural law.’ he thought that `his chosen philosophy provided the answers to most, if not all, questions, and his thinking was apt to carry him to rigid conclusions” (23). malik was a greek orthodox christian educated at the american mission school for boys and the american university of beirut before studying at harvard under alfred north whitehead and in freiburg under martin heidegger. 18 like malik, p.c. chang was thoroughly conversant in the western intellectual tradition, and obtained his doctorate under john dewey at columbia university. unlike malik, however, chang had an indepth knowledge of traditional chinese music and literature while being very well-versed in western and islamic cultures. he was a playwright, musician, educator, and seasoned diplomat. glendon reports chang’s openness and willingness to learn from different cultures: when chang was called to full-time diplomatic service in the 1940s, he brought to his first ambassadorial posts in turkey and chile a genuine curiosity about other societies and an almost missionary zeal to promote understanding of chinese culture abroad. in 1942, for example, while serving in turkey, chang accepted an invitation to baghdad, iraq, where he delivered two lectures: http://en.wikipedia.org/wiki/eastern_orthodox_church http://en.wikipedia.org/wiki/american_university_of_beirut http://en.wikipedia.org/wiki/alfred_north_whitehead http://en.wikipedia.org/wiki/university_of_freiburg http://en.wikipedia.org/wiki/martin_heidegger sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 11 the declaration was designed to be universally applicable (glendon 146); as such, other cultural perspectives ought to be respected (chang 210). on june 16, 1947, rené cassin presented his draft of article 1 as “all men, being members of one family are free, possess equal dignity and rights, and shall regard each other as brothers.” it was then revised by the working group to "all men are brothers. being endowed with reason, they are members of one family. they are free and possess equal dignity and rights." the insertion “endowed with reason” was the brainchild of malik, to which chang proposed adding the confucian concept of ren (which chang translated as “two-man-mindedness”) 19 to complete malik’s idea of humanity and to “increase man’s moral stature” (chang 208) rather than merely protecting the interests of the disengaged individual. “others approved of chang's idea,” noted angle and svenssen (208). but the uk representative and the western-minded malik insisted on rendering ren as "conscience." the term “brother” already in cassin’s draft was also referred to as the “equivalent” of ren. this way, ren got translated away and was replaced by two western concepts instead. that chang should feel increasingly disappointed with the drafting of the udhr should not come as a surprise. despite the fact that chang was praised by many (including eleanor roosevelt and john humphrey) as the “towering intellectual” on the udhr drafting committee, the most important contribution from chinese culture on the subject the first on reciprocal influences and common ground between chinese and arabic cultures; the second on the relation between confucianism and islam. (133) glendon further elaborates on chang’s true respect for cultures around the world as well as his enthusiasm for encouraging international dialogue and cultural exchange: chang played a mediating role time and again throughout the third committee debates in the fall of 1948. the chinese ambassador to the un was uniquely suited for his role as explainer of the declaration to the committee's diverse membership. then in his fifties, he had spent much of his adult life trying to make china better understood in the west and familiarizing his own countrymen with ideas from other traditions. as ambassador to turkey from 1940 to 1942 and to chile from 1942 to 1945, chang had developed an interest in islam and a sympathetic appreciation for the problems of south american countries. a lover of chinese high culture, he had pioneered in making the riches of chinese literature and theater accessible to western audiences. it was scholarly p. c. chang, not the disney corporation, who first introduced americans to the story of mu lan, the brave girl who dressed as a boy, took her aged father's place in the army, and rose to the highest rank. his english dramatization of the chinese folk tale, performed at the cort theatre on broadway in 1921 to raise money for famine relief in china, was well reviewed by the christian science monitor and the new york times. (147) 19 human rights commission, drafting committee, first session (e/cn.4/ac.1/sr.8, p.2). “two-man-mindedness” is the best english translation i have seen so far for the confucian concept of ren. note that ren is never gendered. but chang used “man” in accordance with idiomatic english usage of the time in order to avoid clumsy constructions such as “two-human-being-mindedness.” https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0cb4qfjaa&url=http%3a%2f%2fen.wikipedia.org%2fwiki%2fren%25c3%25a9_cassin&ei=i1q8vdl2deexsatmv4gidq&usg=afqjcngowzozcow9os-yubcmnzew1hwlpq translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 12 which chang tried to introduce was not taken seriously. 20 chang’s proposal of the incorporation of the confucius concept of ren (仁) – the core chinese idea of humanity and the code governing human interactions – was compromised as “conscience” and “brotherhood” in the universal declaration of human rights. in fact, even “compromise” is too weak a word. all the western scholars i have read say that “chang's suggestion was accepted” (glendon 67) when in reality it was trivialized. ren was “translated” (better put, “transformed”) into the western political concept “conscience” at malik’s suggestion – a suggestion which chang had no choice but to accept. even then, chang had to negotiate with great efforts before the committee would eventually approve of adding the already compromised expression “and conscience” after malik’s thoroughly western formulation “endowed with reason.” the entire article 1 reads as follows in english: “all human beings are born free and equal in dignity and rights. they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” the rejection of chang’s proposal became even more glaring when the udhr was translated into chang’s own language, with ren totally displaced by the western concepts of “conscience” and “brotherhood”: “人 人 生 而 自 由 ， 在 尊 嚴 和 權 利 上 一 律 平 等。 他 們 賦 有 理 性 和 良 心 ， 並 應 以 兄 弟 關 係 的 精 神 相 對 待 .” note that “conscience” and “brotherhood” in both the english and the chinese versions of the udhr convey western rather than confucian concepts, predicated as these 20 note that the drafting of the udhr took place during the chinese civil war. p. c. chang who strongly recommended the confucian concept of ren at the drafting stage of the udhr was a representative of the republic of china. a determined opponent of the communist ideology at the time, chang was a major ally of the western liberal world. his political mission was to help accomplish a universal bill of human rights rather than to challenge the idea with a readied mind like the socialist bloc. nonetheless, as the discussions unfolded, chang felt increasingly alienated by the process. glendon repeatedly attributes this to chang’s failing health and his disappointment with the u.s.’s indifference to the fall of china to communism, without attending to the frustrations behind chang’s many disagreements with the committee’s eurocentric position. while using mary ann glendon as one of his primary sources, chu xiao presents in his dissertation the deeper causes for chang’s frustrations. note also that glendon misses the cultural meanings of some of chang’s quotations of chinese classics. for example, she thinks that a certain proverb used by chang was “addressed” to no one in particular” (151), when it was in fact a criticism directed by chang at the hegemonic voices of the major powers at the expense of those of the weak. the proverb in question is "sweep the snow in front of your own door. overlook the frost on another's roof tiles.” chu correctly grasps the negative tone of this proverb and points out the following: […] there were usually some hot debates when touching social and economic articles, like the one between western system of social security and the very different `zeka’ system in some muslim countries. usually debates of this kind ended without any results. the weak voice of disagreement would soon be neglected by the majority during the voting. this kind of situation was once protested in vain by a representative from a small country that the major powers were reducing "countries of lesser importance" to the role of "worried and helpless spectators to their verbal duels." chang offered some ancient wisdom about this situation of big powers pursuing their own benefit by sacrificing those of the smaller: "sweep the snow in front of your own door. overlook the frost on another's roof tiles.” (19; my italics) sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 13 words are upon individuals being “born free and equal” like all others. cassin even explicitly explained that his text alluded to the three fundamental questions of liberty, equality, and fraternity (lindholm 44) – that is, the three questions considered fundamental by the french revolution. as tore lindholm concludes, “the addition of `and conscience’ is, admittedly, a heavily westernized addition of a fundamental normative notion in confucian ethics…” glendon herself felt uneasy about “conscience” and found it to be an “unhappy word choice” (glendon 67). ii.1.1.contributions to the drafting of the udhr by the chinese representative chang repeatedly argued for the “humanization of man” 21 rather than “rights” as the foremost mission of the declaration. not surprising. in the concept “human rights,” it is “the human” that is truly universal, unlike “rights” which has no linguistic equivalents in a range of languages. furthermore, as a country which had lost 10,000,000 to 20,000,000 lives during world war ii, the chinese deeply felt that crimes against humanity were committed not because of the absence of the concept of “rights” in the world, but because the aggressors had lost their humanity (泯沒人性) and their capacity to feel for their victims as human beings. chang’s eagerness to draw his colleagues’ attention to the confucius concept ren was not motivated by a desire to impose chinese values on the world. 22 rather, the first and foremost referent of ren is “humanity” per se – the truly universal element in “human rights” discourse. furthermore, from the chinese experience, all talk about “rights” would be empty and meaningless if people were not “humanized” enough and if they could not 21 chang made this proposal during the discussion of the udh r at the general assembly on october 2. 1948, as i will elaborate, chang took this notion directly from the confucian idea of ren （仁）. as explained in n. 19, ren （人）is not gendered in chinese. chang used “man” to avoid the awkward repetition in favor of idiomatic english usage of the time. 22 in fact, chang even refrained from imposing upon his colleagues’ attention any idea or practice in chinese culture that were without particularly universal relevance. he made this clear in his address to the general assembly on october 7, 1948: while the declaration would no doubt be accepted by a majority vote of the member states, in the field of human rights the popular majority should not be forgotten. the chinese representative recalled that the population of his country comprised a large segment of humanity. that population had ideals and traditions different from those of the christian west. those ideals included good manners, decorum, propriety, and consideration for others. yet, although chinese culture attached the greatest importance to manners as a part of ethics, the chinese representative would refrain from proposing that mention of them should be made in the declaration. he hoped that his colleagues would show equal consideration and withdraw some of the amendments to article 1 which raised metaphysical problems. for western civilization, too, the time for religious intolerance was over. (angle and svensson 210). translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 14 respect each other as human in the first place. 23 in other words, ren precedes rights not only de jure but also de facto. the major powers of the west, by contrast, had tended to abstract away the human which is the truly universal part, in its hypostatization of “rights” – a western value as the be-all and end-all of discussions about oppressions or crimes against humanity. above all, chang was concerned that, by replacing discussions about the human with rights discourse, the committee missed out on alternative or perhaps even better solutions that other cultures might have to offer concerning issues prompting the drafting of the udhr. chang’s pleading was trivialized and compromised by the mistranslation of ren by malik and the british representative — a mistranslation that in reality imposes an alien meaning. 24 ii.1.2. confucianism and the philosophes’ formulations of rights discourse it is not surprising that in calling for humanizing humanity, p.c. chang drew extensively from confucius whose humanism had greatly impressed the philosophes in the enlightenment, including important founding fathers of rights discourse such as montesquieu, voltaire, rousseau, and quesnay. 25 the enlightenment philosophes are widely credited for their important contributions to discourse about human and citizen rights. yet hardly anyone writing on human rights has mentioned how such important enlightenment thinkers drew inspiration from confucianism to formulate their ideas of “rights” in their struggles against various forms of tyranny — including the tyranny of the church and the tyranny of absolutism. p.c. chang, the “towering intellectual” on the udhr drafting committee, tried to highlight this link and the many contributions confucianism could make to an international document seeking to prevent atrocities against humanity. in the discussion on the udhr at the general assembly all october 2, 1948, for instance, chang pointed out the following: in the eighteenth century, when progressive ideas with respect to human rights had been first put forward in europe, translations of chinese philosophers had been 23 this is the position animating my book manuscript translation, concepts of `right,’ and the opium wars: a new historical method and a new world history. i argue for the primacy of the “human” in “human rights”: “rights” ought to be at the service of the “human” and not the reverse. i draw attention to the living human being which has been increasingly trumped by abstract discussions of rights in the modern west. from the vietnam war to iraq, “rights” have been set above the “human” and hence the trivialization of human lives in defence of “human” rights. from colonialism to the wars on terror, liberal countries have their shares of human rights violations, not because of their lack of belief in rights, but because of their inability to feel for the other as human. the other is abstracted away as an idea or an aggregate of stereotypes. 24 i wish to thank joan scott for this suggestion. 25 all of these thinkers had paid tribute to confucius in their writings. sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 15 known to and had inspired such thinkers as voltaire, quesnay, and diderot in their humanistic revolt against feudalistic conceptions. chinese ideas had been intermingled with european thought and sentiment on human rights at the time when that subject had been first speculated upon in modern europe. (chang 207) due to space limitations, i will only be able to briefly point out confucius’s influence on voltaire’s development of “rights.” voltaire was widely known for his admiration for the rationalistic meritocratic foundation of confucian politics in contrast to royal absolutism and christian dogmatism. take, for instance, voltaire’s fascination with confucius’s “revolutionary” 26 substitution of noble character for noble blood as the foundation of authority. junzi (君子), the expression literally meaning "the child of a lord" and was reserved in zhou dynasty for aristocrats, was used by confucius to designate a person of noble character regardless of his birth origin. no less “revolutionary” were confucius’s efforts to champion education for all regardless of birth origin (analects xv, 39). in the orphan of china and elsewhere, voltaire expressed admiration for confucian ethics and discussed his vision of an open-minded confucian monarch who would guarantee social equality and harmony. under voltaire’s tutelage, frederick the great wrote anti-machiavel, a point-by-point refutation of the prince based on confucian ideas of rational and benevolent statesmanship. frederick’s ideal monarch charged with maintaining the well-being of his people was in many ways reminiscent of confucius’s virtuous ruler. the strong confucian color of the text might have been further reinforced by voltaire’s extensive revision when he took over the manuscript in 1740. 27 confucius’s inspirations on voltaire’s development of ideas of “rights” is also evident from the following: confucius has no interest in falsehood; he did not pretend to be prophet; he claimed no inspiration; he taught no new religion; he used no delusions; flattered not the emperor under whom he lived: he did not even mention him. (philosophical dictionary; my italics) an enlightened rational thinker, voltaire admired confucius’s secular politics and, above 26 i put “revolutionary” in parenthesis because, while these confucian ideas and practices might look “revolutionary” to feudal europe, they were deemed by pre-modern chinese society to be in keeping with “cosmic reason” even though they went again previous feudal structures. in pre-modern chinese thoughts, “cosmic reason” prevailed over human law (including the government), which allowed more room than the west at that time for social reform and even for resisting tyranny. for example, as early as mencius (403-221 b.c.), tyrannicide was regarded as a righteous act serving the well-being of the general populace. 27 a combined edition is available with voltaire's emendations printed as footnotes. http://en.wikipedia.org/wiki/the_prince translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 16 all, confucius’s argument for meting out respect and granting offices on the basis of people’s merits rather than superstitions of either a religious or a social-political kind (an example of the latter being the worship of royalties). confucius did not just bracket religion from politics. he “did not even mention [the emperor],” because for him, authority originates from one’s virtue (德) and abilities (能), and not from raw power. confucianism sets authority (威望) above power (權力) – one articulation of which being its advocacy of kingly rule 28 (wangdao王道 ) and strong criticism of tyrannical rule (badao 霸道 ). confucius and his followers contrasted ruling by authority to ruling by power, ruling by right to doing so by might, or – in the language of the confucians – ruling by kindliness and benevolence rather than practising coercion and intimidation. 29 confucius’s idea of ren-rule (仁政) enjoined prioritizing the interest of the people rather than that of the ruler, in contrast to ruling by power or ruling in one’s self-interest. mencius, one of confucius’s distinguished devotees, famously advocated that “the people matter the most, the ruler little; the country weighs even less ( 民爲貴，君爲輕，國家次之 )” (“on full commitment ii,” mencius 《孟子 · 盡心章句下》 ). confucianism, in other words, emphasizes the well-being of the people as the first duty of their ruler. putting to good use confucius’s ideas in his formulation of “rights,” voltaire argued that the primary duty of a government is to recognize and secure the rights of its people. no less important for voltaire’s formulations of “rights” was confucius’s idea of ruling with the support and approval of the people. confucius believed that virtuous rule (rule by authority) would be the only successful way to rule, because in order to stay in power, the ruler depends on the support of his/her own people. authority, unlike power, has the consent and the recognition of the people who look up to 30 their leader and follow him/her of their own accord. coercion would only induce hatred and rebellion, whereas ruling by authority means that one has the support of one’s own people. mencius further explains the importance of ruling with authority or ruling with the consent of the people: “subduing others by force goes against their heart and could succeed only when they do not have sufficient strength to resist. ruling with virtues, by contrast, induce joyful and sincere consent from people’s hearts, an example being confucius’s seventy disciples who followed him wholeheartedly (以力服人者，非心服也，力不贍也；以德服人者，中心 28 i have also rendered wangdao as “magnanimous statesmanship.” 29 confucianism’s prioritization of authority above power explains why the chinese are eager to trace their ancestry not to royalties, but to confucius and other virtuous figures who, through their concrete contributions to society, have truly earned people’s respect. 30 connotations of “looking toward” and “looking up to” can be easily found in chinese expressions describing the voluntary following which authority inspires, such as 衆望所歸 (literally meaning “the one whom everybody looks up to”) and 威望 (comprised of two characters, signifying respectively “charismatic” and “the focal point of everyone’s regard”). sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 17 悅而誠服也，如七十子之服孔子也)” (“gongsun chou i,” mencius 《孟子 · 公孫丑 上》). ii.1.3 what ren could have contributed to the udhr “the human” is the central concern of confucianism. it is not surprising that p.c. chang repeatedly drew from confucianism to argue for a udhr that would truly be of the human, for the human, by the human. chang firmly believed that a better world for humanity could be achieved not by insisting on rights, but by cultivating ren (仁) – by kindness and compassion arising from an existential and emotional connectedness to other human beings and an understanding of one’s co-humanity 31 with one’s fellow human beings. the word ren (仁) features a combination of the characters “human being” (人) and two (二). the number “two” is figurative rather than literal, suggesting that human beings can become truly human and humane only by cultivating their co-humanity (ren) with fellow human beings, and by treating each other with kindness and benevolence. the existential and emotional connectedness between human beings which blossoms forth as ren finds one of its powerful expressions in compassion – one of the many meanings of ren – a meaning that is also borne out in the etymology of roughly equivalent western terms such as “compassion” or mitleid – that is, “suffering together” or suffering the other’s suffering. 32 the other’s (well-)being is at stake for my being, 33 as 31 “co-humanity” is peter boodberg’s suggested rendition for ren which is also regularly translated as “humanity.” 32 the oxford english dictionary defines “compassion” as “suffering together with another, participation in suffering; fellow-feeling, sympathy,” evident in its etymology: the conjoining of com (“together with”) with pati (“to suffer”). 33 the key spirit of ren – crystallized in the sentiment that “the other’s (well-)being is at stake for my being” – highlights human beings as existentially and emotionally connected to each other. note that existentialism does not have to depend on individualism. existentialist marxism provides one good example; catholic existentialism provides another. a close reading of ren – what i undertake to do in this essay – helps to make clear that the real foundation of existentialism is not individualism but “passionate inwardness.” ren carries with it a strong existential impetus, not the least because of confucianism’s groundedness in inner feelings, sincerity, honesty, conviction, and commitment — that is, groundedness in the heart (心) and its commitment to the (well-)being of other human beings as at stake for one’s own being. passion has an intentional structure. to be passionate about something requires opening oneself to being moved by another and toward another. interestingly, aristotle describes virtues as dependent on cultivating not just the right kind of actions but also the right kind (and degree) of passions. the existentialist subject does not passively await being impressed upon by the world. rather, through care, the subject actively relates to the world as "that which is at stake for me." the existentialist subject thus actively assumes the suffering of the other as duties emanating from his/her own existence in the world, by experiencing the other’s pain as at stake for his/her own moral and emotional being. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 18 mencius admonishes of rulers by reminding them of the practices of some of their virtuous predecessors: “for yu, his people’s drowning is his own drowning; for zhi, his people’s hunger is his own hunger. hence their anguish and desperation.” this confucian sentiment finds kindred spirit in the jewish proverb: “the other’s material need is my spiritual need.” the other’s material need concerns my spirituality because, in between choosing my starvation or the other’s starvation, in between choosing my self-preservation and the preservation of the other, my moral freedom and my being (as a human being) is at stake. the other’s material need is thus infinite – not necessarily because the other’s material need is endless, but that my concern for the other’s physical need is infinite, as infinite as my spirituality (or, in confucian terms, the other’s physical need is as infinite as my humanity). of particular importance is how, in contrast to “rights,” ren appeals to human sentiment such as compassion. being connected to each other creates a society in which helping others means helping oneself, and harming others means harming oneself. people who feel emotionally connected to each other – who understand their co-humanity with one another – would thus wish to bring others good rather than harm. on this point, hegel makes the same observation as confucius and p.c. chang: where there is love, there is no need for law/rights – the latter a clumsy and ineffective attempt at “damage control” in the absence of love. 34 this is the reason why chang suggested adding ren after the phrase “endowed with reason” promoted by malik as central to the udhr’s opening declaration about humanity. “reason” (one popular translation for 理) existed in traditional chinese thoughts also. but ren – that is, kindness, compassion, humaneness – is much more dependent on human sentiment and feelings than reason. contrary to dominant modern political thoughts in the west, ren seeks to move people toward the right by compassion for the sufferings of the concrete other, instead of relying on abstract reasoning and arguments against infringing on other people’s rights. 35 the subjective passion of the existentialist subject, in other words, opens him/her to the world and makes that world concrete and meaningful for his/her existence. far from cutting the subject off from the world, the existentialist passion makes the world available to the subject in its full concreteness. as i explain in my essay “the novel and the burger,” it is this subjective opening to the outside world that allows one to see, and be connected to, the concreteness of the pain of the other, and to hold fast to it with a subjective certainty and passionate inwardness. rethinking kierkegaard via confucianism, “passionate inwardness” is achieved – one’s own being is authenticated -when the other’s suffering and well-being are actively assumed as one’s own. ren is an embedded humanism, not least because of its nature as an (inter-) subjectively swayed sense of morality. in sum, existentialism can be intersubjective as much as it can be subjective. see my essay “the novel and the burger” for a related analysis of how the existential can be fruitfully combined with the social and the political. 34 see hegel’s early theological writings. 35 note that rights discourse reduces not just the other but also the “right-bearing subject” to an abstract individual. sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 19 while ren (仁 ) is often translated as “humanity” or “benevolence,” note the differences between confucianian and liberal understanding of “humanity.” contrary to the liberals, confucian understanding of humanity is grounded not in the inviolable rights of the individual, but in human beings as always already in relation to others – existentially and emotionally. from this arises the confucian emphasis on duties rather than rights. confucius ethics and politics speaks only of duties and not rights. duty pertains to what i owe others; right concerns what others owe me. however, the confucius sense of duty arises from one’s emotional connections to others; as such, one becomes autonomous rather than heteronomous in the performance of duties. i have duties toward my children, parents, and fellow human beings, because i feel emotionally connected to – even identify with – the sufferings of my parents, children, and fellow human beings. the other’s hunger is my hunger; i would rather i starve than let the other starve. i sacrifice myself for others not because i am coerced to, but because i feel for them and so i want to. 36 in a ren-based society, duty is not coerced; rather, it comes of one’s own will and love; as such, the realization of one’s duties is also the realization of one’s own will and one’s own authentic henry rosemont jr. explains how in confucianism “an abstract individual i am not, but rather a particular son, husband, father, grandfather, teacher, student, colleague, neighbor, friend, and more. in all of these roles i am defined in large measure by the other(s) with whom i interact, highly specific personages related to me in one way or another; they are not abstract autonomous individuals either.” what i wish to add to rosemont’s observation is that the concreteness of both oneself and the other in confucianism arises not merely from their familial and social relations. relations externally imposed have no meaning and concreteness. confucianism had the power to move so many people into ethical actions – incidents easily found in chinese historical records and the reports of the missionaries -first and foremost because of the confucian emphasis on the heart (心) and the genuine feelings animating such relations – feelings which allows human beings to experience the living human reality of each other. this is the reason why familial relations are foundational in confucianism. in love, the other appears to me in his/her full concreteness -as a living human being with human feelings and vulnerabilities. familial affection is thus an effective first step taking one outside oneself to care for another. on that basis, confucius encourages extending one’s care beyond the family to wider and wider circles, beyond one’s community also, until one loves and cares for the entire humanity as oneself. this final stage — described by confucius as datong (大 同, meaning “the grand togetherness of humanity”) -is the ultimate manifestation of the true spirit of ren, and the true nature and end (telos) of humanity. see my “confucius, aristotle, and a new `right’ to connect china to europe” for a more detailed discussion. this difference between rosemont and myself partly explains my insistence on the necessity of taking into account the existentialist dimension of ren in order to get at the true spirit and power of confucianism. see n. 32. 36 in contrast to liberalism, duty for confucianism is existential rather than contractual. one does not “play” one’s roles; one lives them (rosemont). one commits oneself to one’s duties as an emperor, a minister, a parent, a child, . . . , not out of a desire to trade the fulfilment of one’s duties in return for others’, but because if one does not fully commit oneself to one’s duties as an emperor, one is no longer an emperor (君不 君); likewise with all other roles one assumes as a human being (“yan yuan” xii, analects《論語 ‧ 顏淵第 十二》). confucian roles and identities, in other words, are not essentialized private properties. they are instead existential, defined by one’s commitments and actions. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 20 being. 37 in societies based on liberal rights that configure people as separated individuals, duty is externally imposed as a necessary evil to which one submits in exchange for the respect of one’s rights from others. duty in a right-based society thus has a negative and heteronomous ring. as a result, people in liberal societies tend to demand rights and shun duties, as gandhi and feminists such as gilligan have elaborate. 38 by contrast, in a renbased society, the fulfillment of duty is also the fulfillment of one’s emotional inclinations, even the full flowering of one’s inner being because duty arises from, and returns to, love. the emotional and existential togetherness of two human beings as designated by ren (仁) can be very suggestive for rethinking human rights, including:  ren teaches that we attain full humanity only in being emotionally and existentially related to other human beings: hence in traditional chinese, a villain – someone unkind to others – is referred to as a “human being in a diminuitive form” (小人), meaning that s/he has not realized his/her human capacity (including emotional capacity) and as a result is not quite capable of being kind and humane to others. human rights, in other words, rely on our reaching our real human capacity (ren 仁) in the first place –in the sense of being capable of connecting to other human beings existentially and emotionally. 39 on this basis, ren could also serve as a preemptive reminder that unilateral action could easily degenerate into violation of rights because it violates what makes us “human” in the first place. 37 ren was the backbone of chinese political philosophy until the mid-twentieth century. even in the period when china was facing the threat of subjugation, major intellectuals urging reforms and revolutions of chinese politics by assimilating western ideas nonetheless insisted on the political merits of ren and most continued to make it central to their political thoughts while adopting western ideas. the political thoughts of kang youwei, tan sitong, liang qichao, and sun yat-sen provide just some of the many good examples. 38 gandhi, for example, observed that in liberal democracy, people "discuss political obligation as if it were a kind of moral tax extracted from us by a coercive government, rather than as an expression of our commitment to uphold and improve the quality of the shared life" (parekh 19). 39 the drafting process of the universal declaration of human rights could have been more smooth if chang’s colleagues had taken his recommendation of ren more seriously. the co-humanity enjoined by ren should draw attention to the fact that the protection of human rights itself could only be achieved if different people and countries could work together in human fellowship instead of each insisting on its own right to its own opinion and action. sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 21 in sum, “rights” must be guided by the “human” — not the other way round -if human rights are to be protected.  both parties in ren are human beings insofar as they really exist as fully human for each other – insofar as both are recognized by the other as alive with human feelings and vulnerabilities, with neither one side being instrumentalized, objectified, abused, or dehumanized by the other: ren does not merely make clear that humanity is possible only when there is more than one human being. by enjoining the co-presence of (at least) two human beings, ren teaches that we attain full humanity only in being related to another human being as human. in ren, the other is a living presence and not an abstract idea, least of all an instrument. the “two human beings” in ren requires that the relationship is between an “i/thou” rather than an “i/it.” 40 for one party to slight, 41 trivialize, or objectify the other (not to mention abusing or dehumanizing the other) would thus necessarily be anti-ren or anti-humanity (不仁 ). 42 ren, in other words, already includes within it kant’s enjoinment that we treat other human beings as an end rather than a means, but with the major difference that the ethical impetus of the former originates from the heart rather than the head, from human beings’ interrelated selves rather than an autonomous self. ren depicts human beings as existing in the full living presence of other selves, and that the self acquires reality only insofar as it is genuinely relational. in ren, human beings exist for each other, in each other, and through each other not as abstract conceptions, but as ontological realities with an overwhelmingly meaningful presence. as such, ren can be regarded as “a human home built from relations of mutual confirmation.” 43 understanding the nature of being human as being 40 the full presence of the other to my being and even in my being in confucian thought can be fruitfully compared to martin buber. 41 this is the reason for traditional chinese culture’s strong emphasis on being concernful toward others’ feelings and refraining from causing anyone to “lose face.” to deprive the other’s self-esteem is to deprive the person of his/her humanity (which includes his/her human dignity). and since humanity (仁) is by default a co-humanity (仁), to dehumanize the other is to dehumanize oneself; as such, it is an act of antihumanity (不仁). 42 it is because of this injunction for us to recognize other human beings as human beings, the coexistence of two human beings (仁) must necessarily mean being compassionate, benevolent, and humane. otherwise, the coexistence of two people could also produce a hobbesian scenario of the “war of all against all” — a scenario based on a view of a world befouled by original sin. 43 the co-presencing of two human beings in buber’s “i/thou” relationship resonates beautifully the spirit of co-humanity in the confucian ren. the formulation here is appropriated from sarah scott’s description of buber’s philosophy. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 22 interrelated necessarily precludes instrumentalization – all the more so because ren requires both sides to be human, so that when one party dehumanizes or objectifies the other, the aggressor automatically becomes dehumanized or objectified also. this explains ren’s efficaciousness for preventing aggressions. it is by construing humanity as two (rather than one) human beings (仁) that ren necessarily precludes destroying another human being – because without the other, one is not human. ren in this way could provide the foundation for realizing a number of aspirations of the udhr which the latter has failed to accomplish by relying on the many elaborations of abstract notions of “rights.” by “rehumanizing human beings” – by teaching them to treat each other as human beings – people would of their own accord refrain from “barbarous acts which have outraged the conscience of mankind” (preamble), support “rebellion against tyranny and oppression” (preamble), “promote the development of friendly relations between nations” (preamble), and “promote social progress and better standards of life in larger freedom” (preamble), thereby establishing the real “foundation for freedom, justice and peace in the world” (preamble). ren includes and even goes beyond acting in accordance with “conscience” and “spirit of brotherhood” (article 1). people abiding by the principle of ren would of course respect others’ “life, liberty and security” (article 3), would not subject others to slavery (article 4), nor “to torture or to cruel, inhuman or degrading treatment or punishment” (article 5). a state operating on the principle of ren would not subject its people to “arbitrary arrest, detention or exile” (article 9), and would make sure that they are well provided for (articles 22 and 25). it would also promote education and provide such opportunities for its citizenry (article 26). a ren society would by default be built on the belief that “everyone has duties to the community in which alone the free and full development of his personality is possible” (article 29).  from the mutual recognition of each other as beings alive with human feelings, human dispositions, and human vulnerabilities arises a human way of existing as concernful beings toward each other – the other’s (well-) being is at stake for my being. hence the association of ren with compassion, benevolence, etc. given that ren arises from human beings’ relations to each other as flesh-and-blood living human beings, the attunement to each other as human in his/her full capacity for feelings and vulnerabilities gives rise to compassion and kindness. com-passion, literally meaning “suffering together,” is the true meaning of human co-existence – that is, the ability to suffer the suffering of the other. existence is existence as concernful being toward one another – a fürsorge to the extent that the other’s (well-)being is at stake for my being. it is ad alterum in a radical sense, a real altruism that takes one outside oneself toward a full commitment to the other. this commitment confucius calls zhong ( 忠 ; a very inadequate translation being sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 23 “loyalty”) – a commitment that confucius urges to be applied not only in one’s relations to the ruler but to all human beings – that is, to the other. 44 from this arises the associations of ren with compassion, kindness, and benevolence –all of which are necessary but inadequate characterizations of the deeper significance of ren that gives confucian culture the reputation for its humane, nurturing, and wholesome sentiment (富人情味). ii.1.4. the disappearance of ren from the udhr via the politics of translation the very essence of ren – that human beings can be truly human and humane only in their emotional and existential togetherness – is compromised right from the opening of article 1. both the human condition being described by ren and its efficaciousness for neutralizing aggressions are being undermined by the liberal assertions of human beings as “born free” with “rights.” according to confucianism, the moment human beings are born, they owe their existence – both their arrivals on earth and their upbringing – to their parents; as such they owe their family ethical duties. human beings are born into duties, and not rights – in that their own survival from their inception would have been impossible without the continuous help and support of others. deeply indebted as they are to others, they are never regarded as in the modern west to be “free” from ties and duties – a “freedom” that makes possible the modern western move of grounding the individual in “rights.” far from insisting on one’s rights, the analects advocates “overcoming selfinterest to restore civility” (剋己復禮). ren’s efficaciousness for preventing aggressions is also neutralized by article 1’s construction of human beings as disengaged individuals “born free” with rights. it is by construing humanity as two human beings rather than one (仁 ) that ren necessarily precludes destroying another human being – because without the other, one is not human. needless to say, the injunction of “overcoming self-interest to restore civility” (剋己復禮) also helps to displace conflicts over self-interests and rights with peace and civility. in contrast to ren which begins with the human duties two inter-dependent people owe each other, rights begins with the independent right-bearing subject. rights pertain to what others owe me, and as such easily gives rise to conflicts. by contrast, duty pertains to what i owe others, and its focus is on compassion and benevolence. ren’s emphasis on human inter-dependence rather than in-dependence is further twisted by its (mis-)translation as “conscience” and its place in relation to “rights” in 44 zhong and shu are so central to the realization of ren that confucius’s disciple zengzhi (曾子) even observes that “the master’s way can be summed up as zhong and shu” (夫子之道，忠恕而已矣) ” (“residing in ren,” the analects 《論語·里仁》). according to zhu xi’s annotations （《朱熹 集注》）, “zhong refers to a full commitment to others’ well-being, and shu the ability to `put oneself in another’s place’ (盡己之謂忠，推己之謂恕).” translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 24 article 1. the communal foundation of ren is immediately distorted by the solitary character of the “inner voice of conscience” of the western ethico-political subject. it is telling that, instead of being grounded in duty the way ren is, “conscience” is grounded in rights, as is clear from article 18: “everyone has the right to freedom of thought, conscience and religion” (my italics). 45 although the “conscience” in article 1 is not the same as the “conscience” in article 18, the two are intimately connected in western political thoughts. significant also is that “conscience” and “brotherhood” (the two terms meant to render ren) are being accorded merely secondary importance to humanity in article 1 by being placed in the second sentence – almost as an afterthought – following the declaration about rights in the first sentence. in other words, the least self-regarding concepts in the article are subsumed under the premise of the protection of self-interest against possible infringements by others. the predication of duty on rights is further made explicit in #2 of article 29, which reads: “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” moreover, the western notions of “conscience” and “brotherhood” are simply too passive compared to the ethical duties enjoined by ren. the prioritization of the other above the self enjoined by ren – a principle that sets duty toward others before consideration for oneself – is distorted as “equality” (“equal in dignity and rights”). in particular, the term “brotherhood” is an ill-fit for ren, the latter being an ethical duty irrespective of any sense of solidarity, between the parties concerned. ren is based neither on reciprocity nor solidarity and is simply a duty that one owes others qua being human. and at any rate, “brotherhood” is too big a compromise even for xiongdi (兄弟) in classical chinese, not to mention for ren. the strong emotional overtone denoting life-and-death 45 the grounding of conscience in rights and in the solitary subject is also evident from the “four basic principles” proposed by malik to guide the work of the commission. malik practically refers to the “suprem[acy]” of the “individual’s freedom of conscience” to argue for the priority of the individual to the collective in his definition of “man” and “human rights: first, the human person is more important than any national or cultural group to which he may belong. second, a person’s mind, conscience, and inherent dignity are his most sacred and inviolable possessions. third, any pressure from the state, church, or any other group aimed at coercing consent is unacceptable. fourth, since groups as well as individuals may be right or wrong, the individual’s freedom of conscience must be supreme. (h. malik 27) not surprisingly, malik’s position was endorsed by eleanor roosevelt: "i think we do have to make sure, in writing a bill of rights, that we safeguard the fundamental freedoms of the individual" (charles malik, 38-39). cassin likewise agreed with malik on the overriding importance of “an individual’s freedom of conscience” which "gives man his value and dignity" (ibid., 42-43). sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 25 mutual commitment in the classical chinese xiongdi relationship is missing in the udhr— based as “brotherhood” in the declaration is on legal rather than ethical language. 46 last, but not least, despite the efforts of chang to highlight the importance of duty, and despite the demand of different states from latin america to include a list of the duties of individuals (angle and svensson 208), the drafters “explicitly ruled out producing a catalogue of individual duties or constructing a framework in which individuals forfeited their rights if they failed in their responsibilities” (klug). in contrast to the detailed layout of a list of rights, the udhr merely states in general terms in article 29 the duties owed by individuals to the community. other than that, duty is enjoined in purely negative and passive terms: as the limitation on individual rights by the rights of others and by the overarching authority of the united nations. the positive connections of duty to love, compassion, and humanity so strong in ren evaporate into thin air in the udhr: (1) everyone has duties to the community in which alone the free and full development of his personality is possible. (2) in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) these rights and freedoms may in no case be exercised contrary to the purposes and principles of the united nations. (article 29) the hegemony of western legal concepts is further facilitated by each round of the translation of the udhr. ren, which was greatly distorted when being translated into english, was not restored to its original when the udhr was translated into chinese. quite the contrary, ren totally disappeared when the document was translated into chang’s own language. with each round of translation, western legal concepts gained further hegemony. it should by no means be surprising that rights discourse has drowned out other voices and other traditions of organizing social and political relations: the close knitting of translatio studii and translatio imperii have brought about a global hegemony of western legal concepts. 46 the separation of ethics and politics is a liberal western thought, tied as it is to modern european history. this is not a separation commonly subscribed to outside the modern west. socrates, plato, and aristotle, no less than gandhi and confucius, detect the danger of politics’ easy alliance with brute power and corruption once it is separated from ethics. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 26 ii.1.5. the total eclipse of ren in the chinese translation of the udhr, and the eclipse of “the human” in human rights discourse as it was, when the udhr got translated into an official chinese version, western legal concepts and terminologies reigned supreme. contributions from chinese culture and political thoughts as chang proposed, so misrepresented by the original english version of the declaration, even vanished entirely in the chinese translation. take, for example, the chinese translation of article 1: “人 人 生 而 自 由 ， 在 尊 嚴 和 權 利 上 一 律 平 等。 他 們 賦 有 理 性 和 良 心 ， 並 應 以 兄 弟 關 係 的 精 神 相 對 待 .” little wonder that the bourgeoning of rights discourse since the udhr has not been able to bring about the peaceful co-existence of humanity. along with the eclipse of ren was the eclipse of “the living human” by abstract ideas of “rights” in the udhr, and the drowning out of co-humanity by the inevitable, mutually conflictual assertions of selfinterest in the age of rights. martin buber connects the “eclipse of god” to the “eclipse of man.” in confucianism’s entirely humanistic language, the “eclipse of co-humanity” results in the “eclipse of humanity” -including the possessive individual’s own humanity. as tore linholm also notices, “in june 1947 ren was not included in the official chinese text of article 1. the english word conscience (and similar words in french and spanish) was retranslated (probably by the secretariat) as liangxin, which is not a classical but modern chinese term used as translation for `western notion of conscience’” (linholm 43-44 n. 13). the same with “兄 弟 關 係” – a modern chinese rendition of the western political notion of “brotherhood” with no emotional ring of the classical chinese yiqi (義氣） which committed xiongdis to stand fast by each other even unto death. what is at issue with both ren and yiqi in classical chinese is an emotional and existential bonding that would incline people toward selfless actions toward each other, in contrast to the legal and contractual language of “rights” and “brotherhood” which have to compel obligations externally through impersonal legal or social force. in the realm of liberal notions of law and social contract, duties take on a negative ring because they are externally compelled (by law and society) and do not arise from the subject’s own will and emotional inclinations. to the extent that legal obligations are not based on love and do not arise from the subject’s own will, the imposition of such obligations would only provoke rebellion, resulting in attempts to evade or violate them, as hegel points out in early theological writings. which explains chang’s emphasis that the foremost mission of the udhr should be the “humanization of man” rather than endless elaborations on abstract notions of “rights.” repeatedly, the core spirit of ren – the emotional and existential togetherness of human beings – is compromised away by translations in the drafting and the dissemination of the udhr. chang sees the efficaciousness of ren in preventing humanly engineered brutalities and atrocities by emotional induction of people into good conduct through sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 27 appealing to emotions such as compassion for the concrete sufferings of the other, instead of counting on human beings’ abstract reasoning about the wrongfulness of infringing on other people’s rights. 47 however hard chang tried to get his colleagues to see the important contributions that ren could make to world peace and the well-being of humanity, his points were repeatedly trivialized. despite chang’s good-will efforts to work with his colleagues by compromising with malik and the british representative’s distorted translation of ren as “conscience,” his attempts to cooperate with his colleagues were not appreciated. quite the contrary. malik further bent ren into western modes of thinking by insisting that “his intention was for the words “reason” and “conscience” to be seen “as a function on the level of knowing’” (morsink, 299). malik pointed out in particular that “nature, conscience and reason […] had originally appeared in both the french and united kingdom texts” (morsinck, 298). no wonder that during the discussion of the final version of article 1, chang proposed eliminating that “controversial” clause claiming that human beings “are endowed by nature with reason and conscience” (glendon 112). glendon attributes chang’s final proposal to his dark mood about america’s passivity in the face of the impending fall of his government to the communists (glendon 112), without realizing the real source of p.c. chang’s frustrations. while she does note the following speech given by chang addressed to the general assembly on december 10, 1948, she does not reckon with chang’s disappointment with western obliviousness to possible contributions from other cultures -especially on the importance that duty, rather than rights, might be the key to world peace and the prevention of further human engineered atrocities: the effort of the chinese delegation, he [chang] said, had been to promote a spirit of sincere tolerance of the different views and beliefs of one's fellow men. he blamed ''uncompromising dogmatism" for accentuating disputes, saying that there was at the present time "a tendency to impose a standardized way of thinking and a single way of life." with that attitude, he concluded, "equilibrium could be reached only at the cost of moving away from the truth, and employing force. but however violent the methods employed, equilibrium achieved in that way could never last.” (glendon 166 -change; my italics) significantly, chang was not the only one frustrated with the hegemony of rights at the expense of duty (what chang called “a standardized way of thinking and a single way of life”). glendon herself notes that, immediately after chang’s speech, “mrs. lakshmi menon made a plea for tolerance, too, and took the occasion to recall mahatma gandhi's 47 martin buber comes very close to confucianism on this point also: that is, his emphasis on conversion (a change of heart) rather than winning rational arguments. buber’s account of his refutation of the argument of an atheist worker can help illuminate why rights discourse has been inefficacious in preventing human rights violation. just as buber won the argument but not the conversion, human rights discourse may succeed in proving an idea but still fails to convince the aggressor through its inability to evoke the living presence of the humanity of the victims. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 28 insistence that all rights are born of obligations. from the very fact that it proclaimed rights, she said, the declaration should be understood as a `declaration of obligations’" (glendon 166). world history since the adoption of the udhr by the general assembly of the united nations on 10 december 1948 seems to have vindicated the positions of chang (and of gandhi). despite the burgeoning of rights discourse ever since the udhr, crimes against humanity have continued. it is time to reexamine whether rights really provide the best protection of the well-being of humanity, and whether the imposition of “a standardized way of thinking and a single way of life” has not itself contributed to anger boiling over from time to time against forced equilibrium. as a confucian constantly mindful of the priority of harmony and of the collective project over individual differences, chang joined others in voting to adopt the declaration on december 10, 1948 – albeit with the qualifying statement quoted immediately beforehand. nothing is more obfuscating of the power structure that chang was criticizing about the drafting of the udhr than marina svenssen’s bad-faith conclusion that, just because china voted to adopt the declaration, it “indicat[ed] that they did not have any further theoretical reservations against the idea of human rights”: it was furthermore emphasized that there was nothing incompatible between chinese traditional philosophy and human rights. a chinese diplomat, p.c. chang ( 張彭春), played a central role as a vice-chair of the committee responsible for drafting the universal declaration of human rights (udhr). on dec. 10, 1948, the then kmt-led chinese government voted in favor of the declaration, apparently indicating that they did not have any further theoretical reservations against the idea of human rights. (svensson 3) could “voting in favor” really be so easily glossed over as being “without further theoretical observations”? – that would be possible only for those who fetishize western legal structures as the equivalent of justice, however manipulated and contaminated those structures could be by existing power hierarchies. as a scholar of rights and chinese politics, svensson ought to have been aware how, in the period of history immediately preceding the udhr, china had been repeatedly coerced into signing a number of unequal treatises at the gunpoint of various imperial powers. did the signing of all these unequal treatises “prove” that china gave up her territories “out of her own will”? nor was chang’s frustration caused by a jilted attempt to impose on other countries “the chinese way” – far from it. as a champion of confucian ren – the co-existence of human beings and the priority of the collective above the individual – chang was not only a team-player but also the grand mediator who helped everybody work together. habib malik, the son of charles malik, for example, compliments chang for “facilitate[ing] consensus with his talent for ‘translating’ concepts from one culture to another” (2). glendon reports that chang “would often provide the formula which made it possible for the commission to sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 29 escape from some impasse." john p. humphrey calls chang a "master of the art of compromise" (17, 23-24, 37). yet despite compliments from colleagues about chang being both the “towering intellectual” on the drafting committee and his repeated good-will attempts to create harmony in the midst of dissonance, the outcome was one in which the chinese voice was very much compromised and chang’s suggestions either greatly distorted or ignored altogether. what the above history tells us is: translation goes hand-in-glove with power. the glaring contrast between the eclipse of the chinese voice in the english translation of chinese political thoughts, and the domination of western ideas in chinese translations of western political thoughts, betray a western hegemony that no doubt has contributed to the globalization of western legal and political concepts, as well as to many people’s subsequent impression of the universal legitimacy of western legal and political concepts. as a result of the loss of the chinese voice in the english translation of chinese political thoughts and the further domination of western ideas in the chinese translation of the udhr, confucian ethics and politics became gradually lost even in chinese societies, to the extent that all kinds of efforts from both the state and the civil society have to be made in different parts of the pan-china region to try to resuscitate whatever they could of confucian ren in the face of the onslaught of the selfishness and greed of global capitalism. the chinese translation of article 1 uproots from chinese society its traditional dutyand collective-oriented ethics and social consciousness by planting in their places the “free individual” as the primary unit of social and political thoughts. the complete displacement of ren by “freedom” and “rights” in the chinese translation of the udhr paved the way for the erosion of duty-oriented confucian ethics by western individualism in chinese societies – an erosion which has been taking on momentum since the second half of the twentieth century, and reaches its peak with the globalization of different chinese regions. through the globalization of western legal concepts and language (especially through the venue of translation), individual rights rather than duties toward others have become the criteria to evaluate how “civilized” a country is, and to condemn nations resisting the adoption of “rights” as their primary values. 48 48 in “the end of civilization and the rise of human rights,” mark mazower points out how, in the wake of the end of european global dominance, “human rights” rhetoric gradually replaced the explicitly imperialistic term “civilization.” given that the league of nations distinguished between more and less civilized nations, and placed the “less civilized” under the protection and guidance of their “more civilized” counterparts, human rights can be understood as a reinvention rather than a rupture with the discourse of “civilization”. translation, power hierarchy, and the globalization of the concept “human rights” the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 30 conclusion despite the difficulties of finding a linguistic equivalent for “rights” in chinese and japanese in the nineteenth century, there was no longer a gap between “rights” and quanli (權利) by the late twentieth century, and quanli certainly no longer bears the negative ring the two words (quan and li) used to carry for centuries in confucian culture. as chinese values got eroded by western liberalism, quanli which was previously associated with a lust for power and selfish gain is now regarded as individuals’ rightful entitlements. by contrast, ren never makes it into western vocabulary. while translation has successfully bent the chinese language into expressing western sentiments and western ways of organizing human society and politics, it has at the same time neutralized p.c. chang’s efforts to introduce ren to his western(-minded) colleagues. the western term has by now thoroughly occupied the chinese consciousness (in the sense that the term “rights” has been successfully assimilated into the chinese culture, and the chinese understanding of the expression quanli has become thoroughly westernized). by contrast, the chinese ren remains as unassimilated into english as ever. it remains as difficult to express ren in english in the global age as it was in p.c. chang’s times. while east asian political traditions that had come under the influence of confucianism for centuries have thus given way to western individualism, the co-humanity of ren never makes it beyond east asia. the social, legal, and political concepts that get globalized in the global age remains those from the west — and they are globalized in a way that drowns out the voices of other cultural traditions. 49 the history of the translation of “rights” into chinese and ren into western languages reveal the entwinement of translation studii with translatio imperii. this essay opens new venues for scrutinizing both the universal claim and the universalization of the modern western concept of “human rights” via translation. on the one hand, i use linguistic resistances in translation to demystify claims about the universality of certain concepts such as human rights. on the other hand, i use the breakdown (versus the maintenance) of such linguistic resistances in the target culture to scrutinize the power relations between the source culture and the target culture. typically, if the target culture is in a weak position, it would easily give way to the semantic and conceptual conquest of the source culture, as in the case of the dramatic change in the semantics of the classical chinese expression quanli after china’s repeated defeats by the west – semantic changes which facilitated the displacement of confucian values by modern western “rights” in chinese culture. by contrast, a strong target culture tends to remain immune to influences from the source culture, as in the case of english (mis)translations of ren in the drafting of the udhr, and the failure of ren to get integrated into western languages and cultures. 49 oftentimes, non-western concepts that would interest the west pertain to either trivialities (food and popular culture) or international finance and trading. sinkwan cheng the age of human rights journal, 4 (june 2015) pp. 1-33 issn: 2340-9592 31 references angle, stephen. “neo-confucianism.” oxford bibliographies: philosophy. ed. duncan pritchard. oxford: oxford 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(商鞅？). shang jun shu (商君書). vol. 5 of zhu zi ji cheng (諸子集成). beijing: zhong hua shu ju, 1954. trans. and ed. as the book of lord shang: a classic of the chinese school of legalism, by j.j.l. duyvendak. london: arthur probsthain, 1928. taylor, charles. “conditions of an unforced consensus on human rights.” the politics of human rights. ed. the belgrade circle. london: verso, 1999. 101-119. tierney, brian. the idea of natural rights: studies in natural rights, natural law and church law, 1150-1625. grand rapids: eerdmans, 1997. tuck, richard. natural rights theories: their origin and development. cambridge: cambridge university press, 1979. twiss, sumner b. “confucian contributions to the universal declaration of human rights: a historical and philosophical perspective.” world’s religions: a contemporary reader. ed. arvind sharma. minneapolis: fortress p, 2011. 102-114. voltaire. the philosophical dictionary. trans. h.i. woolf. new york: knopf, 1924. wang, gungwu. the chineseness of china: selected essays. new york: oxford up, 1991. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 113 definition of mother in the english legal system1 oscar celador angón* abstract: the purpose of this paper is to analyse how the term “mother” is defined in the english legal system. this question has recently been raised in english courts due to the mcconnel case; where a woman, who had undergone a gender transition and acquired full legal recognition as a male, gave birth to a child and asked to be registered as the father of his child. in the first part of the paper, i will study the legal frame and the main decisions of the english courts. in the second part, i will analyse the decisions of the european court of human rights and the consequences of the mcconnel case in english family law. and finally, i will explain the role that the principle of the best interests of the child plays in this context. keywords: transsexual, transgender, best interests of the child, right to respect for private and family life. summary: 1. introduction. 2. legal frame. 2.1. the gender recognition act. 2.2. the births and deaths registration act. 2.3. human fertilisation and embryology acts. 2.4. the equality act. 2.5. the children act. 3. judicial precedents. 4. the european court of human rights case law. 5. the mcconnel case. 6. conclusions. 1. introduction the term mother has traditionally been defined as “female parent”, creating a link between the sex of the parent and motherhood. consequently, the mother is defined as the person with the ability to become pregnant and give birth from a biological point of view (margaria and freeman, 2012). this definition is merely terminological, since the parents' obligations towards their children are the same, regardless of their sex or sexual identity (peral, 2000). biological advances, and the parallel development of law, have allowed a person born as female, and who subsequently undergoes a specific procedure to legally change their sex to male, to give birth (moyal and shelley, 2010). should that person to be registered as their child’s “mother” or “father”? if the person is registered as the mother, the legal system would be recognizing that a male can be a mother. however, in the case that the person is registered as the father, the legal system would allow a person born female to be legally father. the interests of all the parties involved are clear. the person giving birth wants to name himself according to his outward appearance or his sexual identity. the person born wants to know who is the person who gave birth to him. and * universidad carlos iii de madrid, spain (oscar.celador@uc3m.es) 1 “new challenges of the law’ project. this work has been supported by the madrid government (comunidad de madrid-spain) under the multiannual agreement with uc3m in the line of excellence of university professors (epuc3m06), and in the context of the v pricit (regional programme of research and technological innovation)” mailto:oscar.celador@uc3m.es definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 114 finally, the state has a special interest in registering properly the identity of the new born and the parents for purposes of civil affiliation (besson, 2007). this question has been answered by the high court of justice in the case r v the registrar general of england and wales2. this case is known as the mcconnel case, despite the fact that the general rule in this type of cases is to name the plaintiff or defendant with a letter of the alphabet. however, because mr. mcconnel publicized the process and the court's decision in the media, the name of the plaintiff is public and the court removed the cloak of confidentiality from the claimant (pocklington, 2019). the purpose of this paper is to analyse how the term “mother” is defined in the english legal system. in the first part of this paper, i will study the english legal frame and the main decisions of the english courts. in the second part, i will analyse the decisions of the european court of human rights in this context. and finally, i will explain the consequences of the mcconnel case in english family law. finally, it is important to take in account that this research is limited exclusively to the english law, since in the united kingdom four legal subsystems coexist (english, welsh, scottish and northern irish). the subsystems have common elements and are under the jurisdiction of the supreme court of the united kingdom, but they have relevant differences in the field of marriage and family law. 2. legal frame the english legal system provides for a gender change procedure very similar to the spanish sex change procedure. the main difference between both models is that in the english model more relevance is given to personal experience and identity; but formally the english model provides for gender change and the spanish provides for sex change (agius and tobler, 2014; celador, 2020; cowan, 2005; salazar benítez, 2015; vidal, 2003). in this part of our research, we are going to analyse the main laws that affect the free development of the personality of people who change their gender. it is necessary to take into account that the gender recognition act is the main law designed to regulate the procedure and the consequences of gender change in english law. however, to properly understand the legal framework, we will also analyse the english law related to birth registration (births and deaths registration act), children's rights (the children act), assisted reproductive techniques (human fertilization and embryology acts) and equality and non-discrimination based on sex, gender or sexual orientation (the equality act). once the legal regulation has been studied, we will focus our research in how the english courts have interpreted this regulation in specific cases. 2 r (on the application of tt) -vthe registrar general for england and wales and others, [2019] ewhc 2384 (fam). oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 115 2.1. the gender recognition act the gender recognition act of 2004 (gra) is the key piece in the regulation of the legal status of transgender people. applicants of either gender who are aged at least 18 may request a gender recognition certificate to the gender recognition panel, if they meet the following requirements: “(a) has or has had gender dysphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death”3. the procedure does not provide the possibility of a change of opinion for the applicants, as far as they have to intend to continue living in the acquired gender until death; and it does not require a surgical operation or a medical treatment as a condition to obtain the gender recognition certificate (grabham, 2010; sandland, 2005; sharpe, 2007; whittle, 2006). regarding the evidences, applications must include “(a) a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or (b) a report made by a [registered psychologist] practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field)”4. if the applicant is married or has a civil partner, since marriage of same-sex couples is legal in england (fishbayn, 2007)5, it is necessary for the applicant's partner to declare whether they intend to continue to be married after the change of gender6. due to the fact that the matrimonial consent continues, since the applicant´s partner expressly declares it, the marriage bond continues (taitz, 1986). the main consequence of the gender recognition certificate is that: “the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)”7. parenthood is regulated in the gra as follows: “the fact that a person’s gender has become the acquired gender under this act does not affect the status of the person as the father or mother of a child”8. according to this regulation, it is necessary to differentiate between the acts performed before and after obtaining the gender recognition certificate. in theory, a person who was born female but who has acquired full legal recognition as male would be the mother of his children born before the recognition certificate; and a person who was born male but who has acquired full legal recognition as female would be the father of her children born before 3 sections 1-2 of the gender recognition act of 2004. 4 section 3 of the gender recognition act of 2004. 5 same-sex marriage was legalised in england, wales, and scotland in 2014; and in northern ireland in january 2020. vid. marriage (same sex couples) act 2013 (c. 30). 6 section 3 of the gender recognition act of 2004. 7 section 9 of the gender recognition act of 2004. 8 section 12 of the gender recognition act of 2004. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 116 the recognition certificate. this interpretation allows to accommodate the legal gender to the gender identity; as well as to differentiate between the gender identity, the biological gender and the legal gender in the family law context. the gender recognition certificate may affect social security benefits for the applicants and their spouses or civil partners. gender recognition certificate applicants should notify to her majesty’s revenue and customs (hmrc) upon issue the certificate, so hmrc will update their national insurance and tax records with details of the acquired gender. the european court of justice held in the case imb v secretary of state for work and pensions9, that the council directive 79/7/eec of 19 december 1978 (on the progressive implementation of the principle of equal treatment for men and women in matters of social security): “must be interpreted as precluding national legislation which requires a person who has changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender”10. the court established that the uk requirement for transgendered persons violated eu law, because they had to be unmarried to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a state retirement pension according with the age required to persons of his or her acquired gender. according to the court, “therefore, it must be held that the national legislation at issue in the main proceedings accords less favourable treatment, directly based on sex, to a person who changed gender after marrying, than that accorded to a person who has kept his or her birth gender and is married, even though those persons are in comparable situations”11. the gra protects the right to privacy of transgender people, establishing that it is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person12. this provision especially affects to the employers and to the local or public authorities. finally, the registrar general office must have a gender recognition register, with the following purposes: “(a) make an entry in the gender recognition register containing such particulars as may be prescribed in relation to the person’s birth and any other prescribed matter, (b) secure that the uk birth register entry is marked in such manner as may be prescribed, and (c) make traceable the connection between the entry 9 case c-451/16, judgment of the court (grand chamber) of 26 june 2018 10 paragraph 54. 11 paragraph 54. 12 section 22 of the gender recognition act of 2004. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 117 in the gender recognition register and the uk birth register entry”13. the link between the gender recognition register and the uk birth register entry allows to offer neutral information on the gender of birth of the transgender and the acquired gender; but the complete certificate can violate the transgender right to privacy, in the event that the transgender wants to keep the gender change secret14. 2.2. the births and deaths registration act the birth of every child born in england shall be registered by the registrar of births and deaths according with the births and deaths registration act of 1953 (bdra). this regulation is supported by the right of individuals to know the identity of the person responsible for their birth as accurately as possible (appell, 2014; mccandless, 2017). the registrar has to require information concerning birth, with the purpose: “to give information to the best of that person’s knowledge and belief of the particulars required to be registered concerning the birth”15. the registrar can provide two types of birth certificate: the full version, which also contains the parents’ details; or a short version, which contains only the newborn details. the short certificate of birth can be obtained by any person as the bdra establishes that: “(1) any person shall, on furnishing the prescribed particulars, be entitled to obtain from the registrar general, a superintendent registrar or a registrar a short certificate of the birth of any person. (2) any such certificate shall be in the prescribed form and shall be compiled in the prescribed manner from the records and registers in the custody of the registrar general […] provided that any particulars prescribed in addition to name, surname, sex and date of birth shall not include any particulars relating to parentage or adoption contained in any such records or registers”16. the father and mother of a child have to deliver the information concerning birth to the registrar within forty-two days. the mother and the father are defined in relation to an adopted child as “the child’s natural mother” or the “child’s natural father”17. in adoption cases, the registrar general is required to maintain an adopted children register, from which there is a traceable (but not publicly open) link to the adopted child's original birth certificate. the link is openly marked with a side-note indicating “adopted”. certificates for the child are produced from the adopted children register, again in the same form as a long-form birth certificate, and recording those adopting as “parent(s)”18. the long certificate does not identify the child's biological mother or father, nor is there any publicly available link to the original birth certificate which does; and the short form certificate has the same form as any other short form birth certificate, so it doesn’t reflect that the child has been adopted. 13 schedule 3 registration, part 1, of the gender recognition act of 2004. 14 schedule 3 registration, part 1, of the gender recognition act of 2004. 15 section 4 of the births and deaths registration act of 1953 16 section 33 of the births and deaths registration act of 1953 17 section 41 of the births and deaths registration act of 1953 18 sections 77-79 of the adoption and children act of 2002. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 118 the bdra neither provide a specific definition of mother, only in the case of adopted children is it specified that the mother is the biological mother. consequently, it is possible to differentiate between the adoptive mother and the biological mother, or between the mother for legal purposes and the biological mother. 2.3. human fertilisation and embryology acts the human fertilisation and embryology acts of 1990 and 2008 (hfea) differentiate between motherhood as a biological and as a legal reality. the hfea establishes rights and obligations in the cases of fertility treatments with respect to donors of biological material, and in the cases of surrogacy and adoption. however, this regulation does not provide a specific solution for cases of gender change (alghrani, 2009; fox, 2009; mccandless and sheldon, 2010). the hfea defines the term mother as “(1) the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child. (2) subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman's child. (3) subsection (1) applies whether the woman was in the united kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs”19. according to this definition, only women can be mothers; so what happens to those women who change their gender? should that person to be registered as their child’s mother or father? another important aspect to keep in mind is that, at least theoretically, only women can receive an embryo, sperm and eggs, in the context of the hfea. the treatment services are defined in the hfea as: “medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children”. the nonmedical fertility services are defined in the hfea as: “any services that are provided, in the course of a business, for the purpose of assisting women to carry children, but are not medical, surgical or obstetric services”20. therefore, those women who change their gender and subsequently want to enjoy the fertility treatments may have their request denied, because they are legally considered male once they got the gender recognition certificate, as far as they become for all purposes the acquired gender21. the father is defined in the hfea according with his relation with the mother. in the case of a woman married (or civil partner) to a man at time of treatment: “if (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, w was a party to a marriage [with a man] [or a civil partnership with a man], and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage [or civil partnership],then, subject to section 38(2) to (4), 19 section 33 of the human fertilisation and embryology act of 2008. 20 section 2 of the human fertilisation and embryology act of 1990. 21 section 9 of the gender recognition act of 2004. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 119 the other party to the marriage [or civil partnership] is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be)”22. in those cases, in which a woman is the other parent it is necessary to differentiate between different scenarios. these are some examples. first, a woman in civil partnership or marriage to a woman at time of treatment is to be treated as the parent of the child, “unless it is shown that she did not consent to the placing in w of the embryo or the sperm and eggs or to her artificial insemination”. second, a treatment provided to a woman who agrees that a second woman to be the parent. or third, when an embryo is transferred after the death of a female spouse, civil partner or intended parent who did not provide sperm; in this case, if no one else “is to be treated (i)as the father of the child by virtue of section 35 or 36 or by virtue of section 45(2) or (3), or (ii)as a parent of the child by virtue of section 42 or 43 or by virtue of adoption, then the other woman is to be treated for the purpose mentioned in subsection (4) as a parent of the child”23. the use of the terms parent and father are incompatible respect the same chid, as “where a woman is treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child”24. therefore, according with the hfea, children can have a mother and a father or a mother and a parent, but the term father is used exclusively for males and the term parent is used for females. 2.4. the equality act gender reassignment is one of the characteristics protected by the equality act of 2010 (ea) (davies et al., 2016; fell and dyban, 2017; hand, 2012). the ea establishes that: “(1) a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. (2) a reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment. (3) in relation to the protected characteristic of gender reassignment— (a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person; (b) a reference to persons who share a protected characteristic is a reference to transsexual person”25. regarding direct discrimination, “a person (a) discriminates against another (b) if, because of a protected characteristic, a treats b less favourably than a treats or would treat others”; and “if the protected characteristic is sex […] (b) in a case where b is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”26. combined discrimination is also protected in cases of gender 22 section 35 of the human fertilisation and embryology act of 2008. 23 sections 42-47 of the human fertilisation and embryology act of 2008. 24 section 45 of the human fertilisation and embryology act of 2008. 25 section 7 of the equality act of 2010. 26 section 13 of the equality act of 2010. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 120 reassignment; in concrete: “a person (a) discriminates against another (b) if, because of a combination of two relevant protected characteristics, a treats b less favourably than a treats or would treat a person who does not share either of those characteristics. (2) the relevant protected characteristics are: (a) age; (b) disability; (c) gender reassignment; (d) race (e) religion or belief; (f) sex; (g) sexual orientation. (3) for the purposes of establishing a contravention of this act by virtue of subsection (1), b need not show that a's treatment of b is direct discrimination because of each of the characteristics in the combination (taken separately). (4) but b cannot establish a contravention of this act by virtue of subsection (1) if, in reliance on another provision of this act or any other enactment, a shows that a's treatment of b is not direct discrimination because of either or both of the characteristics in the combination […]”27. according to the equality act of 2010, in theory it would be discriminatory for an assisted reproduction clinic to refuse a woman to be treat after gender reassignment. a possible solution to this problem could be to interpret that those people with the ability to give birth, regardless of their gender or sex, can be users of fertility treatments in the context of the hfea. 2.5. the children act it is important to take in account the regulation about parental responsibility contained in the children act of 1989 (ca), as “where a child’s father and mother were married to [, or civil partners of,] each other at the time of his birth, they shall each have parental responsibility for the child”, but “where a child: (a) has a parent by virtue of section 42 of the human fertilisation and embryology act 2008; or (b) has a parent by virtue of section 43 of that act and is a person to whom section 1(3) of the family law reform act 1987 applies, the child's mother and the other parent shall each have parental responsibility for the child”28. in the case that the child’s father and mother were not married or civil partners each other at the time of his birth: “(a) the mother shall have parental responsibility for the child; (b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it)] in accordance with the provisions of this act”. and “where a child has a parent by virtue of section 43 of the human fertilisation and embryology act 2008 and is not a person to whom section 1(3) of the family law reform act 1987 applies: (a) the mother shall have parental responsibility for the child; (b) the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this act”29. the ca creates different regimes based on two principles: the existence of a civil relationship between parents (married couple or civil partners), and the pre-eminence 27 section 14 of the equality act of 2010. 28 section 2 of the children act of 1989. 29 section 2 of the children act of 1989. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 121 of the mother's position in the context of filiation. in the case that a female who has subsequently undergone gender transition and acquired full legal recognition as male was consider the father of the child, he would have to apply for parental responsibility due to the fact that, according with the ca, only the mother has automatic parental responsibility for the child. in order to acquire parental responsibility as the father, the ca establish that: “he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child”30. it seems clear that the ca does not foresee the possibility of a man giving birth, as far as if the transgender male is considered the father, who is the mother? in summary, the english legal system has not foreseen what happens in those cases in which a male transgender has the capacity to give birth, in order to attribute specific legal consequences to that situation. 3. judicial precedents until the mcconnel case, the english courts have only ruled on one occasion on a matter directly related to the maternity/paternity of a person which has undergone under gender transition. the claimant was a transgender woman (male to female transsexual) who requested to be registered as the parent of his children –as it is a neutral termor, in the event that his previous request wasn´t attended, as parent/father31. this is a very relevant decision, since, as we will see later, it was used as an important reference by the high court of justice in the mcconnel case. the claimant was born male, he was married to a woman (kk), and had two children. in the birth certificate of both children the claimant was identified as the father. before her second child was born, the claimant felt the desire to live as a woman, and was diagnosed with gender identity disorder and concomitant gender dysphoria. she changed her name to a female forename, and formally renounced to use her former title "mr" in favour of "mrs", and from that date she has lived as a woman. she started a feminising hormone treatment, which was on-going when the court ruled on her request, as the treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. as previously noted, the english legal system doesn’t require the gender reassignment surgery in order to acquired full legal recognition of the new gender identity according with the gra32. consequently, the claimant had obtained a gender recognition certificate, which recognized her gender identity as female. according to her gender identity, the claimant requested to the local registrar that the birth registration of her oldest son could be re-registered, with the new registration 30 section 4 of the children act of 1989. 31 r (jk) v the registrar general (the secretary of state for the home department and others intervening) [2015] ewhc 990 (admin); [2016] 1 all er 354. 32 sections 1-2 of the gender recognition act of 2004. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 122 showing the claimant's new name of jk, and with her identified as “parent” rather than as “father”; or, if that were not possible, as "father/parent". the registrar couldn't address the claimant request that her former name of ck was entered on the certificate as her previous name, and completed the form showing kk as “mother” and the claimant, in her name jk, as “father”33. the claimant appealed the registry decision because, in her opinion, the requirement to show her as “father” on the birth certificate of each of her children was a breach of the right to respect for private life under article 8 of the european convention on human rights (echr). the claimant also denounced that she was discriminated on the basis of her transgender characteristic under article 14 of the echr. the court highlighted the absence of regulation and judicial decisions in this field, both in the case law of the european court of human rights and in most of the legal systems of european countries. portugal is the only european country that has regulated specifically this situation, permitting a child's birth certificate to be amended, but only if the child is over 18 years of age and consents34. the court didn’t consider that in requiring a man who changes gender to female to be listed as "father" on the full birth certificate of a child -of whom she is the biological father-, to be in breach of article 8 or 14 of the echr. regarding the breach of article 8 of the echr, the court established that: “i) whilst gender is an important element of an individual's fundamental identity, in practice, after a father had changed gender, the statutory scheme contains a number of checks and balances (such as section 22 of the gra 2004); the room for disclosure of the fact of the individual's gender change by requiring her to be shown as "father" on her children's birth certificates is limited; and the interference with her article 8 rights will be small. ii) the interference with the article 8 rights of the relevant children will also be small; and will be counterbalanced, at least to an extent, by the fact that, if their birth certificates were altered to show their father as "parent" (or, if it were possible, "father/parent") that itself would interfere with the child's article 8 right to have his or her fundamental identity recognised. in some cases, such alteration may be adverse to the best interests of the relevant children”35. the birth registration scheme is based on the principle that “a birth certificate shows the relevant details of a child as at his or her birth, and those details cannot be changed”. this system has been designed to protect the rights and interests of parents, children, and the public interest of collecting all the information related to the birth. the court either found a breach of article 14 of the echr, since “i consider that this case falls within the ambit of article 8, and i accept that transsexualism is a notion or characteristic covered by article 14 as falling within "other status" […] this is a case in 33 paragraph 11. 34 paragraph 117. 35 paragraph 123. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 123 which, in the event, the article 14 claim does not add anything of substance to the article 8 claim. discrimination under article 14 is, in my judgment, justified for the same reasons as those set out above in relation to article 8”36. 4. the european court of human rights case law the united kingdom has transposed the european convention into its internal legislation through the human rights act of 1998 (hra). the hra guarantees the right to respect for private and family life, establishing that “1. everyone has the right to respect for his private and family life, his home and his correspondence. 2. there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”37. it should also be noticed that the regulation of the united kingdom has been repeatedly denounced before the european court of human rights (echr), so its compatibility with the convention has been directly tested (falletti, 2014; gonzalez salzberg, 2014; hart, 2016; korkiamäki, 2014; sanz, 2003, 2014; ziegler, 2020). in rees v the united kingdom38 a female to male transsexual complained that united kingdom did not allow his birth registration to be modified according with his physical appearance as male, after having undergone a sex change surgery financed by the public health system. the government argued that “in the absence of any error or omission at the time of birth, the making of an alteration to the register as to the sex of the individual would constitute a falsification of the facts contained therein and would be misleading to other persons with a legitimate interest in being informed of the true situation. they contended that the demands of the public interest weighed strongly against any such alteration”39. the echr held that there had been no violation of the right to respect for private and family life, as the british regulation was intended to guarantee the legitimate interest of offering truthful information about the register of births. the court recognized that the position of the british authorities fit within the margin of appreciation that the convention recognizes to states, and that the changes demanded by the applicant “would have important administrative consequences and would impose new duties on the rest of the population”40. regarding the right to marry and to found a family, in cossey v the united kingdom41 the court held that: “although some contracting states would now regard as 36 paragraphs 126-127. 37 schedule 1, art. 8 of the human rights act of 1998. 38 case of rees v the united kingdom (application nº 9532/81), 1986. 39 paragraph 42. 40 paragraph 43. 41 case of cossey v the united kingdom (application nº 10843/84), 1990. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 124 valid a marriage between a person in miss cossey’s situation and a man, the developments which have occurred to date (see paragraph 40 above) cannot be said to evidence any general abandonment of the traditional concept of marriage. in these circumstances, the court does not consider that it is open to it to take a new approach to the interpretation of article 12 (art. 12) on the point at issue. it finds, furthermore, that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the contracting states to regulate by national law the exercise of the right to marry”42. a similar claim was presented under the echr in x, y and z v the united kingdom43. in this case a female to male transsexual, living in a permanent and stable union with a woman, who gave birth as a result of artificial insemination by a donor, claim that the british law did not allow him to have a legal relationship with his partner, nor with his partner's son. the court maintained its referenced position in the cossey and rees cases, and held that there has been no violation of the european convention. the court decision in goodwin v the united kingdom44 is a landmark case regarding the recognition of gender identity and the legal status of transsexuals. mrs. goodwin (a male to female transsexual) claimed that she had problems and faced sexual harassment at work due to her gender reassignment. according with the social security regulation, she was treated as a man; which meant that she had to contribute up to 65 years, while women only contributed at that time until the age of 60, so she had chosen to pay her contributions herself to avoid conflicts with her employers. despite having changed her gender, mrs. goodwin´s social insurance situation didn’t change, therefore her employers could know that she had previously worked as a male, with the resulting embarrassment and humiliation. and finally, she complained about her inability to marry. the court found that the united kingdom violated mrs. goodwin's rights to respect for her private and family life and her right to marry. the court created a new case law line to those legal systems, such as the case of the united kingdom, that choose to recognize the right to change of sex. according with the court, those legal systems must be consistent with that decision and remove the obstacles that prevent individuals from fully integrating into society, and legally acting according to their sex identity. as a consequence of this decision united kingdom passed the gra45. the modification of the court's case law was justified in “the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments”46. the court emphasised that “the court finds that the respondent 42 paragraph 42. 43 case of x, y and z v the united kingdom (application nº 21830/93), 1997. 44 case of goodwin v the united kingdom (application nº 28957/95), 2002. 45 section 9 of the gender recognition act of 2004. 46 paragraph 93. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 125 government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the convention. since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender reassignment, it reaches the conclusion that the fair balance that is inherent in the convention now tilts decisively in favour of the applicant. there has, accordingly, been a failure to respect her right to private life in breach of article 8 of the convention”47. the right to marriage was also debated by the court, concluding that “while it is for the contracting state to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender reassignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances”48. in other words, states can decide whether to legally recognize gender re-assignment; but if they choose to recognize gender reassignment, individuals must be able to exercise all rights according to their gender identity, including the right to marry and to found a family. regarding the rights of transgender children, the echr has not taken any specific decision. however, the court has analyzed the right of children to know the identity of their biological parents, which is very interesting for this research, since the modification of the sex or gender of the parents may have consequences on the information shown by their children's birth certificate. in the following lines, we are going to study two decisions of the echr that were used as a reference to decide the mcconnel case. in godelli v italy49 the court analyzed the italian legal system, which allows the identity of the parents to be kept secret in certain cases, which may collide with the children's right to respect for her private and family life. according with the italian civil code, “one of the parents may decide not to recognize his or her child. in order to exercise that right, the mother must, at the time of the birth, request the hospital to keep her identity secret. in such a case a medical file containing medical information about the mother and child is drawn up. only the child’s general practitioner may have access to the file, with the permission of the child’s guardian”50. ms godelli was abandoned by her mother at birth, and her birth certificate records indicated, regarding the identity of her mother, that “a woman, who did not consent to being named, gave birth to a baby girl”, making it impossible for the applicant to exercise her right to identity, which includes knowing the identity of her parents if possible. 47 paragraph 93. 48 paragraph 103. 49 godelli v italia (application nº 33783/09), 2012. 50 paragraph 16. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 126 the italian government justified its position in the existence of a conflict between two private interests, and the margin of appreciation that states should enjoy in this area. the court connected the right to identity with the knowledge of the identity of the parents, as the court established that: “the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. in such cases, particularly rigorous scrutiny is called for when weighing up the competing interests. the court must examine whether a fair balance has been struck in the present case between the competing interests: on the one hand, the applicant’s right to have access to information about her origins and, on the other, the mother’s right to remain anonymous”51. the court held that the italian law violated article 8 of the european convention, because “italian law does not allow a child who was not formally recognised at birth and was subsequently adopted to request either access to non-identifying information concerning his or her origins or the disclosure of the mother’s identity. accordingly, the court considers that the italian authorities failed to strike a balance and achieve proportionality between the interests at stake and thus overstepped the margin of appreciation which it must be afforded”52. the court highlighted the absence of mechanisms that would harmonize the interests of the parties (the mother and her daughter), as well as the absolute protection of the mother's right, even completely sacrificing the interests of the children. in mennesson v france and labassee v france53 the court maintained its position regarding the recognition of filial relations. france didn´t recognize the legal parent-child relationship established by two married couples with their children thorough surrogacy agreements in the united states, as the french authorities maintained that the surrogacy agreements entered into by mr and mrs mennesson and mr and mrs labassee were unlawful. the construction made by the court of the parental affiliate relations is very interesting, as one of the parents was also the child’s biological father. in the court’s view: “the right to identity was an integral part of the concept of private life and there was a direct link between the private life of children born following surrogacy treatment and the legal determination of their parentage […] given the importance of biological parentage as a component of each individual’s identity, it could not be said to be in the best interests of the child to deprive him or her of a legal tie of this nature when the biological reality of that tie was established and the child and the parent concerned sought its full recognition. not only had the tie between the twins and their biological father not been acknowledged when the request was made for the birth certificates to be entered in the register; in addition, the recognition of that tie by means of a declaration of paternity or adoption, or on the basis of de facto enjoyment of status, would fall foul of the prohibition established by the case-law of the court of cassation in that regard. in thus preventing the recognition and establishment of the children’s legal relationship with their biological father, the french state had overstepped the permissible margin of appreciation”. in accordance with this approach, the court held that the children’s right to respect for their private life were violated. 51 paragraphs 52-53. 52 paragraph 58. 53 mennesson v france (application nº 65192/11), 2014. labassee v france (application nº 65941/11), 2014. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 127 5. the mcconnel case in the mcconnel case the court was required to define the term “mother” under the law of england and wales54. this case is quite relevant since until then no court has previously been required to legally define what mother means. this is a unique case, because the term mother has traditionally been associated with those women who give birth. according with this logic, not all women are mothers, but in order to be a mother it is necessary to be a woman. freddy mcconnell was born female, later he followed the gender transition procedure and became legally recognised as male, his passport and national health service records were amended to show his gender as male. under medical guidance, he suspended testosterone treatment and later commenced fertility treatment in england at a clinic, whose records show that mr. mcconnell was registered as ‘m’ for male. finally, he conceived, carried and gave birth to a child. when mr. mcconnell tried to register the birth of his son in the registry office, he was informed that he would have to be registered as the child’s “mother”, regardless that he was registered with his current male name. mr mcconnell request to be registered as “father” or, if this option was not available, as the “parent”. due to the refusal of the registry office to comply with his request, mr mcconnell brought a claim in judicial review, claiming a breach of his rights under the european convention. before starting the analysis of the judicial decision, it is important to note that the plaintiff is considered a male for all purposes, because, according with the gra, “where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)”55. consequently, the court had to answer two questions: how should a man who give birth to a child be registered in the civil registry? and is that man the “mother” or the “father” of his child? the court emphasized that at the same period that mr mcconnell declared to the gender recognition panel that he intended to continue to live as a male until his death, he suspended the programme of testosterone therapy in order to get pregnant by artificial insemination. mr mcconnell justified his position under the panel, in the fact that he wasn’t questioned about this situation during the application process and he had not volunteered the information56. due to the absence of any statutory definition of “mother”, the court look for a definition at common law, establishing that: “prior to the mid-20th century, when conception and pregnancy other than through sexual intercourse was unknown and where gender was primarily determined by genital examination at birth and then maintained for life. in that 54 r (on the application of tt) -vthe registrar general for england and wales and others, [2019] ewhc 2384 (fam). 55 section 9 (1) of the gender recognition act of 2004. 56 paragraph 44. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 128 context, the lack of copious authority on the question does not, given the nature of the issue, indicate that there is any doubt as to the answer. in those times, at common law a person who became pregnant, through the insemination of an egg in their womb, and who subsequently gave birth to a child must have been that child’s mother. in this the law was doing no more than reflecting common sense, common experience and the basic facts of life; motherhood was established by the act of giving birth, or ‘parturition’ to use lord simon’s phrase, and a person who became pregnant and gave birth was a ‘mother’[…] in that regard, being a ‘mother’ is to describe a person’s role in the biological process of conception, pregnancy and birth; no matter what else a mother may do, this role is surely at the essence of what a ‘mother’ undertakes with respect to a child to whom they give birth. it is a matter of the role taken in the biological process, rather the person’s particular sex or gender”57. according with the common law, the person who carries a pregnancy and gives birth to a child is that child’s mother. the term mother is defined by the biological connection between two human beings, depending on the role that both of them play in the process of pregnancy and birth. thus, the main question that had to answer the court is whether the provisions of the gra modify the common law position in those cases where the person who conceives, carries and gives birth to a child is, at the time of birth, male58. the court analyzed the main regulation in this area (the gender recognition act, the births and deaths registration act, the human fertilization and embryology acts and the equality act and the children act), concluding that none of them modifies the common law principle which defines the mother as the person who undergoes process of carrying a pregnancy and giving birth, regardless of his/her gender. in order to answer all the questions raised, the court also focused on the analysis of the rights protected by the european convention, and specifically the right to respect for private and family life (article 8) and the prohibition of discrimination (article 14). the court noticed that the echr had not yet ruled on the specific issue that arises in this case. the government accepted that the requirement for a trans-man, to be named as “mother” on the child’s birth certificate, interferes with both the claimant’s and the child’s art 8 rights59. in consequence, the relevant questions that have to be answered are, on the one hand, if the state had a legitimate interest to limit the mentioned rights; and, on the other hand, if there were other solutions available to guarantee the right to respect for private and family life60. according with the court, in order to define the “best interests” of a child in the related circumstances: “a balance must be struck between the parent’s individual right to privacy and the child’s right to know about their biological identity”61. the right to know the biological identity is linked with other rights such as the right of donors of material for 57 paragraphs 133,139. 58 paragraph 136. 59 paragraph 191. 60 paragraph 244. 61 paragraph 194. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 129 fertility treatments to have their identity kept secret, or with the legislation of some states that guarantees the anonymity of the identity of parents in certain circumstances (clark, 2012; turkmendag, 2012, 58). the court focused on the decisions of the echr in mennesson v france and godelli v italy, and established that the interference with the art 8 rights was justified as being in accordance with the law, for a legitimate purpose, proportionate and fair. the court established that: “the aim of the uk birth registration scheme, as the government argue is the case, in requiring the identity of the person who gave birth to a child to be recorded as such is, therefore, entirely legitimate and of a high order of importance in the context of social policy. it is of note that in almost all the countries within the council of europe a trans-man who gives birth will be registered as the ‘mother’ […] the degree of interference in their art 8 rights is substantial, i also accept the government case (in line with the judgment of hickinbottom j in jk) that the number of occasions when a full birth certificate may be produced and tt’s status as yy’s mother, and therefore the fact that he is trans-gender, would be disclosed, will be small. the adverse impact upon tt, significant though it will be were it to occur, is very substantially outweighed by the interests of third parties and society at large in the operation of a coherent registration scheme which reliably and consistently records the person who gives birth on every occasion as mother”62. another aspect that the court also valued was the effect of registration in the rights to third parties. the recognition of the right to a trans-parent to register a birth in their acquired gender may violate third parties’ rights, and especially the rights of the child and the trans-parent's partner. the right to identity includes being able to know who is the person responsible for the birth, and that person traditionally has been known as the mother. in the event that mcconnell was registered as the father, his son would be denied the right to know who is responsible of his birth, and he would be discriminated respect to those children whose parents are not transgender, because his mother's name would not be registered. likewise, the registration of a person according to their acquired gender violate the right to respect for private and family life to their partner/spouse. finally, the court's position can be summarized as follows: “there is a material difference between a person’s gender and their status as a parent. being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. it is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’”63. therefore, the terms father and mother are not connected to the person's gender. the gender of the person isn´t relevant, but his/her role in the process of conception, pregnancy and birth of a child. gender is a dynamic concept that can evolve with the identity of the person, while the terms father and mother are static concepts that are not modified by the acquisition of gender under the gra. 62 paragraphs 266, 272. 63 paragraph 279. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 130 6. conclusions the recognition of rights to transgender people has been constant in the 21st century, among other reasons thanks to the influence of the decision of the european court of human rights in goodwin v the united kingdom. the english model is an exceptional example of the legal evolution carried out by most of the european states, so that people who change their sex or gender can freely develop their personality and especially in the context of personal relationships and family law. the general rule has traditionally been to recognize to people who change sex or gender the rights recognized to the acquired sex or gender, so that the equality is absolute and any type of discrimination is avoided. the recognition of the same-sex marriage and the social and political activism of the lgbt movements has been very supportive in this context, since it has made possible to sensitize both society and politicians about the need to facilitate the free development of the personality of individuals regardless of their sex, gender or sexual orientation. english law does not specifically define the term mother, because traditionally the term mother has been associated exclusively with the female sex, and until the mcconnel case there have been no relevant lawsuits or legal conflicts in this context. the gra has developed a model in which, on the one hand, it is not required a surgical operation or a medical treatment as a condition to obtain the gender recognition certificate; and on the other hand, the person’s gender becomes for all purposes the acquired gender. the bdra is supported by the right of individuals to know the identity of the person responsible for their birth as accurately as possible, and that person is named mother (in the case of the biological mother) or adoptive mother. but the bdra does not define the term mother either. the hfea differentiates between motherhood as a biological and as a legal reality, but it does not provide a specific solution for cases of gender change; as far as clarifies that the use of the terms parent and father/mother are incompatible regarding the same child. one of the main gaps in english law in this context is that, according with the gra, gender change requires applicants to declare their intention to continue to live in the acquired gender until death. therefore, the procedure does not foresee any solution for those cases in which the applicants, once they have changed their gender, change their opinion. the european court of human rights has developed a case law line to those legal systems, such as the case of the united kingdom, that choose to recognize the right of individuals to change of sex/gender. the court has established that those countries must remove the obstacles that prevent individuals from fully integrating into society, and legally acting according to their sex/gender identity. however, the european court has not defined the term mother, nor what are the obligations of the states in this context. regarding the rights of children, the european court has established that children have the right to know the identity of their biological parents, as an integral part of their right to respect for private and family life, guaranteed by article 8 of the european convention. oscar celador angón the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 131 the discussion opened in the mcconnel case is a great example of the difficulty that family law faces in adapting to the rapid and constant scientific evolution in the context of assisted reproduction, and in responding to the requests of transgender people. the complex decision adopted in the mcconnel case establish that a man should be considered the mother of his child for the following reasons: first, the term “mother”, although it may have a legal meaning, has a mainly biological content, and is inseparably associated with the person with the capacity to become pregnant and give birth to their child. second, the possibility of changing people's gender does not require modifying the definition of the term "mother". family law tries to allow people to freely develop their personality without being discriminated because of their sex, gender or sexual orientation; while the definition of who is a mother is a mere biological description of the role that people play in the reproductive process and not a legal one. third, the separation between gender and biology means that either a man or a woman can be mothers, since the relevant element is not the sex or gender of the person who become pregnant and give birth to their child, but rather their role in that process. and four, the english solution takes into account the interests of third parties, and especially the right to know who is the person responsible for people´s birth, as a part of the rights to identity and respect for private life; and, if they exist, the right of the partners of transgender or transsexual people to have their role legally recognized in this context. words are often symbols, and their meaning may not be unique. traditionally, the term mother has been associated with woman and motherhood, just as the terms woman and man have been associated with a biological situation. the law has evolved allowing people to decide what their sex or gender is, according to their feelings and sexual identity; and later on to develop their personality without being discriminated against. this regulation sometimes collides with other legal assets of special relevance, such as the legal security offered by civil registries in areas such as birth or filiation. therefore, it seems necessary for the public authorities to have a margin of discretion, especially when the rights of minors are affected. in summary, we are facing the latest response of family law to the demands and requests of the transgender community, and it implies that a term that has traditionally been linked exclusively to women, can now also be used by men, in the case of the female to male transgender who decide to become pregnant and give birth. medical and technological advances indicate that in the future it will be feasible to transplant or modify reproductive organs, so that males can become pregnant and give birth, so this debate it may not be finished yet. definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 132 references agius, s., tobler, c., (2014) trans and intersex people discrimination on the grounds of sex, gender identity and gender expression, european network of legal experts in the non-discrimination field, european commission directorate-general for justice, publications office of the eu. alghrani, a., (2009) “the human fertilization and embryology act 2008: a missed opportunity?”, journal of medical ethics, vol. 35, pp. 718-719. https://doi. org/10.1136/jme.2009.033365 appell, a., (2014) “certifying identity”, capital university law review, vol. 42, pp. 1-42. besson, s., (2007) “enforcing the child's right to know her origins: contrasting approaches under the convention on the rights of the child and the european convention on human rights”, international journal of law, policy and the family, vol. 21 (2), pp. 137-159. https://doi.org/10.1093/lawfam/ebm003 celador angón, o., (2020) “transexualidad, libre desarrollo de la personalidad e interés del menor: análisis comparado de los modelos español e inglés”, revista general de derecho público comparado, nº. 27. clark, b., (2012) “a balancing act? the rights of donor-conceived children to know their biological origins”, georgia journal of international and comparative law, vol. 40, nº 3, pp. 621-661. cowan, s., (2005) “gender is no substitute for sex: a comparative human rights analysis of the legal regulation of sexual identity”. feminist legal studies, vol. 13, pp. 67–96. https://doi.org/10.1007/s10691-005-1457-2 davies, c., ferreira, n., morris, a., morris, d., (2016) “the equality act 2010: five years on”, international journal of discrimination and the law, vol.16, issue: 2-3, pp. 61-65. https://doi.org/10.1177/1358229116655645 european commission (directorate-general for justice and consumers) (2020), legal gender recognition in the eu, the journeys of trans people towards full equality. falletti, e., (2014) “lgbti discrimination and parent–child relationships: crossborder mobility of rainbow families in the european union”, family court review, vol. 52, issue1, pp. 28-45. https://doi.org/10.1111/fcre.12068 fell, v., dyban, m., (2017) “equality act 2010 (uk)”, the european proceedings of social & behavioral sciences, vol. 19: lifelong wellbeing in the world (wellso 2016), pp. 188-194. https://doi.org/10.15405/epsbs.2017.01.25 fishbayn, l., (2007) “not quite one gender of the other: marriage law and the containment of gender trouble in the united kingdom”, american university journal of gender, social 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permanence: trans subjects, time, and the gender recognition act”, social & legal studies, vol. 19, pp. 107-126. https://doi. org/10.1177/0964663909346200 hand, j., (2012) “unification, simplification, amplification? an analysis of aspects of the british equality act 2010”, commonwealth law bulletin, vol. 38, issue 3, pp. 509-528. https://doi.org/10.1080/03050718.2012.695001 hart, l., (2016) relational subjects: family relations, law and gender in the european court of human rights, publications of the faculty of social sciences, unigrafia, publications of the faculty of social sciences, nº 9, helsinki. korkiamäki, l. s., (2014) “legal gender recognition and (lack of) equality in the european court of human rights”, the equal rights review, vol. 13, pp. 20-50. leibetseder, d., griffin. g., (2018) “queer and trans reproduction with assisted reproductive technologies (art)”, europe, vol. 20, issue 1, pp. 1-9. margaria, a., freeman, m., (2012) “who and what is a mother? maternity, responsibility and liberty”, theoretical inquiries in law, vol. 13, nº. 1, pp. 153-178. https://doi.org/10.1515/1565-3404.1288 mccandless, j. (2017), “reforming birth registration law in england and wales?”, reproductive biomedicine & society online, vol. 4, pp. 52-58. https://doi. org/10.1016/j.rbms.2017.07.001 mccandless, j., sheldon, s., (2010) “the human fertilisation and embryology act (2008) and the tenacity of the sexual family form”, modern law review, vol. 73, issue 2, pp. 175-207. https://doi.org/10.1111/j.1468-2230.2010.00790.x mccandless, j., sheldon, s. (2014), “genetically challenged: the determination of legal parenthood in assisted reproduction”, freeman, t., graham, s., ebtehaj, f., richards, m. (eds.), relatedness in assisted reproduction: families, origins and identities, cambridge university press, pp. 61–79. https:// doi.org/10.1017/cbo9781139814737.005 minter s., (2016) “transgender family law”, family court review, vol. 56, pp 410-422. https://doi.org/10.1111/fcre.12357 moyal, d., shelley, d., (2010) “future child’s rights in new reproductive technology: thinking outside the tube and maintaining the connections”, family court review, vol. 48, nº 3, pp. 431446. https://doi.org/10.1111/j.1744-1617.2010.01321.x peral fernández, l, (2000) “concepto de sexo y discriminación por razón de sexo en el derecho social comunitario europeo: la contradictoria sentencia del tribunal de justicia de las comunidades europeas en el asunto grant respecto de https://doi.org/10.1177/0964663909346200 https://doi.org/10.1177/0964663909346200 https://doi.org/10.1080/03050718.2012.695001 https://doi.org/10.1515/1565-3404.1288 https://doi.org/10.1016/j.rbms.2017.07.001 https://doi.org/10.1016/j.rbms.2017.07.001 https://doi.org/10.1111/j.1468-2230.2010.00790.x https://doi.org/10.1017/cbo9781139814737.005 https://doi.org/10.1017/cbo9781139814737.005 https://doi.org/10.1111/fcre.12357 https://doi.org/10.1111/j.1744-1617.2010.01321.x definition of mother in the english legal system the age of human rights journal, 16 (june 2021) pp. 113-134 issn: 2340-9592 doi: 10.17561/tahrj.v16.6308 134 su jurisprudencia en el asunto p./s”, derechos y libertades: revista del instituto bartolomé de las casas, año nº 5, nº 8, pp. 393-428. pocklington, d., (2019) “mother defined in common law", law & religion uk, nº 26. salazar benítez, o., (2015) “la identidad de género como derecho emergente”, revista de estudios políticos, nº 169, pp. 75-107. https://doi.org/10.18042/cepc/ rep.169.03 sandland, r., (2005) “feminism and the gender recognition act 2004”, feminist legal studies, vol. 13, pp. 43-66. https://doi.org/10.1007/s10691-005-1456-3 sanz caballero, s., (2003) “a propósito de sentencias de goodwin e i o del debate sobre el matrimonio de transexuales ante tedh”, revista española de derecho internacional, vol. 55, nº 1, pp. 307-316. sanz caballero, s., (2014) “el tribunal europeo de derechos humanos y su respuesta al reto de la transexualidad. historia de un cambio de criterio”, american university international law review, vol. 29 nº 4, pp. 831-868. sharpe, a., (2007) “a critique of the gender recognition act 2004”, journal of bioethical inquiry, vol. 4, pp. 33-42. https://doi.org/10.1007/s11673-007-9032-y taitz, j., (1986) “the law relating to the consummation of marriage where one of the spouses is a post-operative transsexual”, anglo-american law review, vol. 15, pp. 141-148. https://doi.org/10.1177/147377958601500204 turkmendag, i., (2012) “the donor-conceived child's ‘right to personal identity’: the public debate on donor anonymity in the united kingdom”, journal of law and society, vol. 39 (1), pp. 58-75. https://doi.org/10.1111/j.1467-6478.2012.00570.x vidal gallardo, m., (2003) “el derecho a la identidad sexual como manifestación del derecho a la identidad personal”, laicidad y libertades: escritos jurídicos, nº. 3, pp. 385-418. whittle, s., (2006) “the opposite of sex is politics. the uk gender recognition act and why it is not perfect, just like you and me”, journal of gender studies, vol. 15, pp. 267-271. https://doi.org/10.1080/09589230600862166 whittle, s., (2007) “sex changes? paradigm shifts in 'sex' and 'gender' following the gender recognition act?”, sociological research online, vol. 12. issue 1, pp. 75-89. https://doi.org/10.5153/sro.1511 ziegler, r., (2020) “the european union as a protector and promoter of equality: discrimination on grounds of sexual orientation and gender identity”, the european union as protector and promoter of equality (giegerich, t., ed.), springer, pp. 283-296. https://doi.org/10.1007/978-3-030-43764-0_15 received: february 1st 2021 accepted: april 25th 2021 https://doi.org/10.18042/cepc/rep.169.03 https://doi.org/10.18042/cepc/rep.169.03 https://doi.org/10.1007/s10691-005-1456-3 https://doi.org/10.1007/s11673-007-9032-y https://doi.org/10.1177/147377958601500204 https://doi.org/10.1111/j.1467-6478.2012.00570.x https://doi.org/10.1080/09589230600862166 definition of mother in the english legal system abstract 1. introduction 2. legal frame 2.1. the gender recognition act 2.2. the births and deaths registration act 2.3. human fertilisation and embryology act 2.4. the equality ac 2.5. the children act 3. judicial precedents 4. the european court of human rights case law 5. the mcconnel case 6. conclusions references the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 108 a critique of the demise of heads of state immunity in the age of human rights* selman ozdan** abstract: this paper presents an unspoken aspect of head of state immunity, namely that such immunity is at odds with the expectation that international law should be applied to challenge resistance to and promote respect for human rights. it considers the question of whether head of state immunity gives rise to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens) committed by such heads of state. while this paper emphasises the critical role of head of state immunity in the context of international relations, it argues that heads of state should not exempt from punishment when violations of those human rights are at stake. keywords: head of state, immunity, impunity, human rights, peremptory norms. summary: i. introduction; ii. developments of head of state immunity in international legal system; iii. the problem of head of state immunity in relation to violations of human rights recognised as peremptory norms; iv. protection of human rights vs. head of state impunity; v. conclusion; vi. references i. introduction state officials have traditionally been immune from the jurisdiction of foreign states’ courts when they would otherwise be required to account for the deeds they are accused of committing. however, this authoritative principle of international law becomes contentious in cases involving the violation of human rights recognised as peremptory norms, most strongly represented by the growth of international human rights law and the establishment of international tribunals and courts determined to end impunity for violations of those human rights, irrespective of the perpetrators’ official position.1 increasing concern for international human rights and greater international support for abolishing impunity for violators of those human rights have led the international community to question the boundaries of head of state immunity. * this article is based on asst. prof. dr. selman ozdan’s phd dissertation which was conducted under the supervision of prof. jean allain at queen’s university belfast. ** asst. prof. dr. in public international law at erciyes university school of law (turkey). (selmanozdan@erciyes.edu.tr) he holds ph.d. (2016) in law from queen’s university belfast school of law (united kingdom) and ll.m. with honors (2011) from case western reserve university school of law (cleveland oh usa). he is a member of the society of legal scholars (sls) and case western reserve university law alumni association. orcid id: https://orcid.org/0000-0002-1002-0625 1 hazel fox qc and philippa webb, the law of state immunity (3rd edn, oxford university press 2013) 537. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 109 there were great expectations that international law would evolve in favour of international human rights after the second world war. these expectations undoubtedly continue. it would be a fantasy to imagine that international law always works in favour of human rights; however, there is a definite trend within the international community to seek to enhance and support international human rights. head of state immunity appears to be a considerable impediment to realising the expectation that international law can be used to challenge resistance to respect for human rights and to ending impunity. in this sense, impunity ‘must be distinguished from immunity; the two terms must not be used interchangeably’.2 immunity is a general rule of international law ‘whereby certain state officials are deemed to be endowed with immunity from criminal prosecution and civil suits initiated in foreign states. impunity can be described as exemption from penalty or punishment. when the sovereign immunity principle is applied to the practice of sovereign impunity, individuals, who have administrated and participated in fundamental human rights violations, are often beyond the capacity of the law to provide a remedy’.3 this paper examines the tension between the principle of head of state immunity and the protection of human rights recognised as peremptory norms under general international law. it considers the developments under international law in respect of the rules regarding such immunity. this paper subsequently discusses and analyses immunity and impunity for heads of state when violations of human rights recognised as peremptory norms are perpetrated. to engage with this discussion, the paper concentrates on the judgement of the international court of justice in arrest warrant of 11 april 2000 (democratic republic of the congo v belgium) so as to criticise the issue of immunity in question. towards that end, the paper considers the question of whether head of state immunity, in effect, means head of state impunity in cases involving the violation of human rights recognised as peremptory norms. here, the central aim of the paper is to argue that head of state immunity leads to de facto impunity in the case of violations of those human rights. finally, regarding the language of this paper, when the phrase fundamental human rights is used, it signifies or reads as human rights recognised as peremptory norms of general international law.4 2 selman ozdan, ‘immunity vs. impunity in international law: a human rights approach’ (2018) 4 baku state university law review 36, 52. 3 ibid 42. see also generally jacques fomerand, historical dictionary of human rights (rowman & littlefield 2014); kingsley chiedu moghalu, ‘reconciling fractured societies: an african perspective on the role of judicial prosecutions’ in ramesh chandra thakur and petrus adrianus maria malcontent (eds), from sovereign impunity to international accountability: the search for justice in a world of states (united nations university press 2004). 4 human rights recognised as peremptory norms includes the prohibitions against slavery or slave trade; genocide; torture or other cruel, inhuman, or degrading treatment or punishment; murder or disappearance of individuals; systematic racial discrimination; prolonged arbitrary detention; and the principles of the united nations charter prohibiting the use of force. see yousuf v samantar (2012) 699 f 3d 763 (court of appeals, 4th circuit) 775–76; evan j criddle and evan fox-decent, ‘a fiduciary theory of jus cogens’ (2009) 34 yale journal of international law 331. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 110 ii. developments of head of state immunity in international legal system the concept of head of state immunity was explicitly and conceptually located in the 1987 in re grand jury proceedings, doe no. 770, in which the us court of appeals for the fourth circuit stated that head of state immunity ‘is a doctrine of customary international law. generally speaking, the doctrine maintains that a head of state is immune from the jurisdiction of a foreign state’s courts, at least as to authorised official acts taken while the ruler is in power’.5 in simple terms, the principle of immunity has been instituted to protect a state and its senior officials from being sued before its courts and particularly foreign courts, so that they can carry out their activities abroad without impediment. since immunity from prosecution and execution is based upon the sovereign equality principle of states, this principle does not prevent senior state officials from being indicted before an international court as long as this court is vested in jurisdiction over serving or former heads of state.6 prior to 1919, there was little discussion of immunity for heads of state before international tribunals or courts, as the issue had been all but taboo with regard to any waiver of such immunity. however, the versailles treaty, which is generally accepted as the first indictment of a former head of state before an international tribunal, is seen by many as breaking this taboo. on this point, article 227 of the treaty reads as follows: the allied and associated powers publicly arraign william ii of hohenzollern [the kaiser], formerly german emperor, for a supreme offence against international morality and the sanctity of treaties. a special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the rights of defence. it will be composed of five judges, one appointed by each of the following powers: namely, the united states of america, great britain, france, italy and japan. in its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. it will be its duty to fix the punishment which it considers should be imposed. the allied and associated powers will address a request to the government of the netherlands for the surrender to them of the ex-emperor in order that he may be put on trial.7 5 in re grand jury proceedings [1987] united states court of appeals, fourth circuit 700, 1108 817 f2d 1111. for a private visit to another state, sir arthur watts stated that although ‘it may well be that a head of state, when on a private visit to another state, still enjoys certain privileges and immunities, it is much less likely that the same is true of heads of governments and foreign ministers. although they may be accorded certain special treatment by the host state, this is more likely to be a matter of courtesy and respect for the seniority of the visitor, than a reflection of any belief that such a treatment is required by international law’. sir arthur watts, the legal position in international law of heads of states, heads of governments and foreign ministers, vol 247 (martinus nijhoff publishers 1994) 109. 6 brigitte stern, ‘immunities for heads of state: where do we stand?’ in mark lattimer and philippe sands (eds), justice for crimes against humanity (hart publishing 2003). 7 peace treaty of versailles 1919 article 227. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 111 however, the kaiser was never tried. before armistice day, the kaiser fled to the netherlands and asylum was granted to him by the dutch government who refused to hand him over for trial.8 after the treaty of versailles, the issue of immunity for heads of state was challenged through the statutes of the nuremberg and tokyo international military tribunals. article 7 of the charter of the nuremberg tribunal declared that the ‘official position of defendants, whether heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment’.9 a number of significant developments in international law have taken place whose outcome has been to restrict head of state immunity in the interest of securing and maintaining fundamental human rights. the nuremberg principles include the assertion that the ‘fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible government official does not relieve him from responsibility under international law’.10 in a similar vein, article 6 of the statute of the tokyo tribunal declared that: neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged.11 in respect of both statements by international military tribunals, international law unequivocally protects state officials and provides immunity; however, in particular circumstances immunity for heads of state cannot be invoked if his or her deeds constitute a violation of fundamental human rights. if violations of those human rights are at stake, the official position of a head of state should not serve as a shield to avoid punishment. immunity should apply only to sovereign acts; therefore, heads of state should not enjoy functional immunity in relation to violations of fundamental human rights. functional immunity provides protection for sovereign acts; however, acts which cause fundamental human rights violations should not be deemed as sovereign acts.12 concerning individual criminal responsibility, it is clear that the statutes of the international criminal tribunal for the former yugoslavia and the international criminal tribunal for rwanda are considered important developments in terms of clarifying the position of head of state immunity in relation to international crimes that give rise to fundamental human rights violations. both statutes emphasise that heads of state should not benefit from immunity. article 7(2) of the statute of the international criminal tribunal for the former yugoslavia provides that the ‘official position of any accused 8 see gary d solis, the law of armed conflict: international humanitarian law in war (cambridge university press 2010) 74. 9 ‘nuremberg trial proceedings vol. 1 charter of the international military tribunal’ article 7. 10 ‘principles of international law recognized in the charter of the nuremberg tribunal and in the judgment of the tribunal, 5 un gaor supp. (no. 12) at 11, u.n. doc. a/1316’ principle 3. 11 ‘international military tribunal for the far east charter’ (1946) article 6. 12 ra kolodkin, ‘second report on immunity of state officials from foreign criminal jurisdiction, 62nd session’ (international law commission 2010) un doc. a/cn.4/631 para 28, 29, 30 and 31; dapo akande and sangeeta shah, ‘immunities of state officials, international crimes, and foreign domestic courts’ (2010) 21 european journal of international law 815. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 112 person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment’.13 article 6(2) of the statute of the international criminal tribunal for rwanda reiterates this statement. in so doing, this provision acknowledges that perpetrators of human rights violations, regardless of their official position, cannot hide behind the shield of immunity; and that heads of state enjoy no impunity. furthermore, in the case of prosecutor v blaskic, the appeal chamber of the yugoslavia tribunal highlighted that: the general rule under discussion is well established in international law and is based on the sovereign equality of states (par in parem non habet imperium). the few exceptions relate to one particular consequence of the rule. these exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity.14 in a similar vein, article 27 of the rome statute embodies provisions which indicate that the statute applies to all individuals regardless of their official position within a state: this statute shall apply equally to all persons without any distinction based on official capacity. in particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.15 the essential purpose of the incorporation of these provisions into the rome statute and ad hoc tribunals is to ensure individual criminal responsibility for all persons, and particularly heads of state, who perpetrate violations of fundamental human rights which constitute international crimes. furthermore, by ensuring individual criminal responsibility, those provisions prevent certain persons from using their official position as a shield against prosecution for those human rights violations. article 98(1) of the statute of the international criminal court goes beyond states party to the statute. article 98(1), which is concerned with cooperation with respect to the waiver of immunity and consent to surrender, reads as follows: 13 un security council, statute of the international criminal tribunal for the former yugoslavia, sc res. 827, un scor 48th sess., 3217th mtg. at 1-2 1993 article 7(2). 14 prosecutor v tihomir blaskic [1997] 110 ilr 687 (international criminal tribunal for the former yugoslavia) 710. 15 ‘rome statute of the international criminal court’ (un general assembly 2002) article 27(1),(2). selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 113 the court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third state for the waiver of the immunity.16 articles 27 and 98(1) of the rome statute might be seen as contradictory in that the former rejects immunities while the latter endorses immunities. however, article 98(1) addresses a particular situation in which a state party to the statute is required to surrender a person who is jurisdictionally untouchable by virtue of the immunities granted by a third state. in this sense, this case can be described as an equation with three knowns (a state party, the statute, and a person endowed with immunities), although it would appear that the equation always produces a tangled outcome for the state to whom the request is made. specifically, the state party to the statute either must breach its obligation to meet the requirements of the court or must breach its commitment to abide by immunities of a state that is not party to the statute. the interaction between articles 27 and 98(1) of the statute thereby establishes a system wherein the state parties to the statute consent to surrender all immunity rights in relation to the court’s requirements regarding their own state officials or representatives, while still abiding by the immunities of states that are not yet party to the statute.17 ultimately, article 98(1) of the statute implies three situations where the immunities bestowed on a person by a state that is not a party to the statute can be trumped. first, if a state that is not a party to the statute agrees to relinquish the immunity, the person can be prosecuted. second, if the state official is no longer in office, the official’s personal immunity ends (although functional immunity can still be enjoyed), thus enabling the official to be prosecuted for committed violations of human rights. third, if the united nations security council requests full participation under chapter vii, the state which is not a party to the statute automatically is deprived of its immunity rights, and must surrender the accused.18 16 ibid article 98(1). 17 see for detailed analyses on the interplay of articles 27 and 98(1) of the international criminal court statute paola gaeta, ‘official capacity and immunities’ in antonio cassese, paola gaeta and john rwd jones (eds), the rome statute of the international criminal court: a commentary, vol i (oxford university press 2002); dapo akande, ‘the legal nature of security council referrals to the icc and its impact on al bashir’s immunities’ (2009) 7 journal of international criminal justice 333. 18 robert cryer and others, an introduction to international criminal law and procedure (2nd edn, cambridge university press 2010) 556. for the relationship between the international criminal court and un security council with regards to the issue of waiving immunity, see akande (n 17); cryer and others 549–557. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 114 iii. the problem of head of state immunity in relation to violations of human rights recognised as peremptory norms in international law, a number of prominent decisions have bearing on the tension between vesting immunity in the head of state and the protection of human rights recognised as peremptory norms.19 in analysing head of state immunity in the context of human rights violations, the arrest warrant of 11 april 2000 (democratic republic of the congo v belgium) case is important, particularly in relation to the question of whether or not head of state immunity equates to head of state impunity in such cases. heads of state sometimes enjoy considerable leeway to escape from proceedings in respect of human rights violations. in this sense, the concept of immunity is sometimes ‘wrongfully utilised to signify that a person benefits from impunity or is not prosecuted, for reasons other than the technical legal bar of immunity’.20 that said, the perspective of the international court of justice for mr yerodia raises the issue of immunity or impunity for heads of state when violations of fundamental human rights are perpetrated. in the arrest warrant case, belgium argued that immunities accorded to incumbent foreign affairs ministers cannot, under any circumstances, provide the minister with protection where he or she is suspected of having perpetrated violations of fundamental human rights. subsequently, belgium touched upon the question of whether a person’s high-level status within a state constitutes an impediment to prosecution. on this point, belgium claimed that the official position of a person should not be an obstacle to applying jurisdiction. on 11 april 2000, an international arrest warrant was issued by a belgian investigating judge of the brussels tribunal of first instance against abdulaye yerodia ndombasi, the minister for foreign affairs of the democratic republic of the congo (drc), in respect of alleged crimes against humanity and violations of international humanitarian law. mr yerodia was accused of having made some speeches that incited racial hatred and occasioned the massacre of tutsi civilians in 1998. mr yerodia was charged by the belgian judge with grave breaches of the international geneva conventions of 1949 and of their additional protocols i and ii of 1977. the arrest warrant for mr yerodia was transferred to the democratic republic of the congo and concurrently circulated at the international level 19 strictly speaking, the suit against the former president of chile augusto pinochet by the uk house of lords in 1998 and 1999 was a significant in international law as pinochet could not claim immunity for acts of torture for which he was responsible. although it might have been ruled on narrow grounds, this important decision appears to have marked the end of immunity in cases involving violations of fundamental human rights by a former head of state, even when those violations were committed while the head of state was in office. michael tunks, ‘diplomats or defendants? defining the future of headof-state immunity’ (2002) 52 duke law journal 651, 659; ingrid wuerth, ‘pinochet’s legacy reassessed’ (2012) 106 the american journal of international law 731; see charles pierson, ‘pinochet and the end of immunity: england’s house of lords holds that a former head of state is not immune for torture’ (2000) 14 temple international and comparative law journal 263. for the pinochet decision see r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 1) (1998) 4 aii er (house of lords); r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 2) (1999) 2 w.l.r. 272 (house of lords); r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 3) (2000) 1 a.c. 147 (house of lords). 20 stern (n 6) 81. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 115 via interpol. ultimately, belgian authorities brought a suit against mr yerodia based on the belgian law of 16 june 1993, concerning the punishment of grave breaches of the geneva conventions and their additional protocols, which provides a basis for universal jurisdiction in regard to such violations. article 5(3) of the belgian law also provides that the immunity enjoyed by a person who acts in an official capacity does not create any obstacle to the application of the law.21 on 17 october 2000, the democratic republic of the congo filed an application with the international court of justice instituting proceedings against the belgian kingdom in relation to the case involving this international arrest warrant. in making the application, the democratic republic of the congo relied on two legal grounds. first, the democratic republic of the congo asserted that belgium had violated its obligation to respect the immunity of the minister of foreign affairs of a sovereign state. second, the democratic republic of the congo alleged that belgium had breached the principle that a state cannot exercise its authority over another state’s territory and the principle of sovereign equality of states. on this point, the democratic republic of the congo claimed that the ‘universal jurisdiction that the belgian state attributes to itself under article 7 of the law in question’ does not comply with the principle of sovereign equality. the heart and soul of the argument of the democratic republic of the congo concerned the violation of customary international rule in relation to the absolute immunity and inviolability of incumbent foreign ministers from criminal jurisdiction. arguing that belgium had infringed the sovereign equality principle of states, the democratic republic of the congo requested that the international court of justice require belgium to declare its international arrest warrant null and void.22 the democratic republic of the congo insisted that belgium had no jurisdiction under international law to issue and circulate an international arrest warrant, and that by doing so it had breached the rights of the democratic republic of the congo to perform and conduct its foreign affairs through its foreign minister.23 belgium pointed to the decision rendered on 24 march 1999 by the house of lords in the united kingdom in relation to the former head of state of chile, general augusto pinochet duarte, which recognised and accepted an exception to the principle of immunity in respect of violations of fundamental human rights under international law. 21 see the judgment of arrest warrant of 11 april 2000 (democratic republic of the congo v belgium) (2002) i.c.j. reports; see generally matthias goldmann, ‘arrest warrant case (democratic republic of the congo v belgium)’, max planck encyclopedia of public international law (mpepil) (oxford university press 2009); see for the mentioned article belgium: act of 1999 concerning the punishment of grave breaches of international humanitarian law 1999. 22 see arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [1, 21, and 62]. article 7 of the act of 1999 concerning the punishment of grave breaches of international humanitarian law is about competence, applicable procedure and the execution of sentences. it states that the ‘belgian courts shall be competent to deal with breaches provided for in the present act, irrespective of where such breaches have been committed’. belgium: act of 1999 concerning the punishment of grave breaches of international humanitarian law (n 21). 23 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21); see also alexander orakhelashvili, ‘arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium)’ (2002) 96 american journal of international law 677. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 116 according to belgium, the holding in the pinochet no 3 case advanced the development of international law by acknowledging an important exception to the principle of immunity for heads of state or government.24 belgium accordingly referred to a statement by lord millett that international law ‘cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose’. belgium also cited the words of lord phillips of worth matravers that ‘no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime’.25 the democratic republic of the congo, following belgium’s argument concerning the pinochet decision, emphasised that according to international law as it currently stands, there was no basis for any exception to the principle of head of state immunity from criminal jurisdiction for a standing minister of foreign affairs where she or he is accused of having perpetrated fundamental human rights violations under international law. the democratic republic of the congo, by cross-referencing the pinochet decision, emphasised lord browne-wilkinson’s statement that this ‘immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attached to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state’.26 here, the focus is on whether the accused is an incumbent or a former head of state rather than the gravity of their alleged crimes. the democratic republic of the congo argued that the immunity ‘accorded to ministers for foreign affairs when in office covers all their acts, including any committed before they took office, and that it is irrelevant whether the acts done whilst in office may be characterized or not as official acts’.27 the international court of justice examined the decision of the house of lords in the pinochet case but found that there was no applicable exception to the rule of head of state immunity from criminal jurisdiction; moreover, it found that current ministers of foreign affairs are particularly inviolable where they are suspected of having perpetrated violations of fundamental human rights. accordingly, the court rejected the belgian argument in relation to the pinochet decision by the house of lords.28 belgium’s approach in the democratic republic of the congo v belgium case can be regarded as an important step towards the objective of abolishing impunity for perpetrators of fundamental human rights violations. on this point, belgium pointed out that: 24 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [56]. 25 r v. bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no. 3) (n 19) 278 and 289; see also reed brody and michael ratner (eds), the pinochet papers: the case of augusto pinochet ugarte in spain and britain (kluwer law international 2000) 346. 26 r v. bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no. 3) (n 19) 201–202. 27 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [47]. 28 ibid 58–59. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 117 [w]hile ministers for foreign affairs in office generally enjoy an immunity from jurisdiction before the courts of a foreign state, such immunity applies only to acts carried out in the course of their official functions, and cannot protect such persons in respect of private acts or when acting otherwise than in the performance of their official functions.29 the international court of justice stated that it is bound ‘to find that, given the nature and purpose of the warrant, its mere issue violated the immunity which mr yerodia enjoyed as the [democratic republic of] the congo’s incumbent minister for foreign affairs’. the court therefore decided that the warrant issue led to a violation of belgium’s obligation towards the democratic republic of the congo, in that belgium failed to respect head of state immunity. according to the court, belgium also breached the immunity from criminal jurisdiction under international law.30 it follows that the principle of immunity for an incumbent head of state is still prevalent and alive, even in respect of violations of fundamental human rights prohibited under international law. in respect of the distinction between immunity and impunity bestowed on heads of state, the international court of justice underscored that the immunity from jurisdiction enjoyed by heads of state in power does not mean that they can benefit from impunity with reference to any violations they may have perpetrated, regardless of their seriousness. ‘immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. while jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law’. the court added that while jurisdictional immunity may become an obstacle to prosecution for definite offences or for a definite period, ‘it cannot exonerate the person to whom it applies from all criminal responsibility’.31 the court implied that the immunities provided by international law for a current or former head of state do not constitute an impediment to criminal prosecution in particular circumstances. subsequently, the court observed four exceptional situations to head of state immunity under international law. although the judgment of the international court of justice implied that the immunity from jurisdiction enjoyed by heads of state does not equate to impunity for international crimes, the exceptions to head of state immunity outlined by the court become insufficient to abolish impunity. first, the court stated that a head of state does not enjoy immunity under international law from criminal proceedings in his/her own country’s courts. second, the court held that heads of state should be deprived of jurisdictional immunity before a foreign state’s court if the state which they represent waives their immunity rights.32 regarding the aforementioned two exceptional situations, prosecution requires ‘a willingness of the state which appointed the person as a foreign minister to investigate and prosecute allegations against him domestically or to lift immunity in order to allow 29 ibid 49. 30 ibid 70. 31 ibid 60. 32 ibid 61; for further analysis see stern (n 6). a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 118 another state to do the same’.33 be that as it may, where domestic authorised bodies do not consent to open an investigation or start a prosecution, the committed violations of human rights will go unpunished. such an outcome raises the issue of impunity. the third exception the court identified was that after a person’s official position as a minister for foreign affairs ends, he or she can no longer benefit from the immunities granted by international law in foreign states. ‘provided that it has jurisdiction under international law, a court of one state may try a former minister for foreign affairs of another state in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity’.34 the last exception identified by the court was that neither former nor incumbent heads of state enjoy immunity when that immunity has been limited by a treaty establishing an international court. afterwards, the international court of justice listed the international criminal court as one such tribunal which may overturn the immunity of a head of state provided that it has jurisdiction under international law.35 the jurisdiction of the court arises from the authority vested by the contracting states in the statute of the court or via the united nations security council. as michael tunks noted, ‘no other country has jurisdiction over a third party’s head of state, and, consequently, no two states may agree by treaty to waive the immunity of a third party’s head of state without that other nation’s consent’.36 it follows that the alleged jurisdiction of the court’s statute over a head of state whose home state does not assent to the statute is not sufficient to rectify customary international law and protect fundamental human rights from head of state impunity. it would be untenable to claim that in the absence of the international criminal court, a head of state who is suspected of having committed violations of fundamental human rights would be justiciable solely before his or her own state’s courts. iv. protection of fundamental human rights vs. head of state impunity with respect to the peremptory nature of fundamental human rights, the decision by the international court of justice offers no clear or plain solution to the tension between head of state immunity and protection of fundamental human rights. the 33 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [35] [dissenting opinion of judge van den wyngaert]. 34 ibid 61; see for comments on the third exception of the court antonio cassese, ‘when may senior state officials be tried for international crimes? some comments on the congo v. belgium case’ (2002) 13 european journal of international law 853, 867–68. 35 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [61]. 36 see tunks (n 19) 665; see also generally madeline morris, ‘the democratic dilemma of the international criminal court’ (2002) 5 buffalo criminal law review 591; see generally cassese (n 34). ‘the international criminal court will only be able to act if states which have jurisdiction are unwilling or unable genuinely to carry out investigation or prosecution’. arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [37] [dissenting opinion of judge van den wyngaert]. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 119 judgment undermined the argument that the principle of protection of fundamental human rights becomes hierarchically superior to immunity norms; if it were, immunity would be obtainable neither by states nor by current or former heads of state.37 in the democratic republic of the congo v belgium case, judge ad hoc van den wyngaert, in her dissenting opinion, claimed that there were no grounds in positive international law for bestowing full immunity on incumbent heads of state against foreign criminal jurisdiction. she emphasised that neither state practice nor opinio juris constitutes an international custom that affects the court’s decision.38 it follows that there is no treaty or legal opinion that supports the proposition of the court. international law does not provide immunity to incumbent heads of state from criminal proceedings when they perpetrate violations of fundamental human rights. in this sense, belgium’s act might seem to be at odds with international comity; however that act did not breach an international legal obligation. judge wyngaert then stated that: [t[he court’s conclusion is reached without regard to the general tendency toward the restriction of immunity of the state officials (including even heads of state), not only in the field of private and commercial law where the par in parem principle has become more and more restricted and deprived of its mystique, but also in the field of criminal law, when there are allegations of serious international crimes.39 it must be noted that the international arrest warrant was issued by belgium in respect of accusations of war crimes which the international court of justice failed to mention. it is important to ask what is required under international law and what international law permits states, as members of international society, to do when their officials are accused of violations of fundamental human rights. in this sense, two particular interests are reflected in contemporary international law: first, the demand for international accountability for having allegedly committed violations of fundamental human rights and second, the sovereign equality principle of states which is regarded as a prerequisite for immunities.40 redressing the balance between these two particular interests is important for resolving the contradiction between head of state immunity and protection of fundamental human rights. the court, instead of redressing the balance, considered a very narrow question on the immunities of incumbent ministers of foreign affairs. by doing so, the court ‘has missed an excellent opportunity to contribute to the development of modern international criminal law’.41 37 see wuerth (n 19) 741. 38 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [1, 10, and 23] [dissenting opinion of judge van den wyngaert]; see also petra minnerop and others, world court digest 2001 2005, vol 4 (springer science & business media 2009). 39 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [23] [dissenting opinion of judge van den wyngaert]. 40 ibid 5 [dissenting opinion of judge van den wyngaert]. 41 ibid 6 [dissenting opinion of judge van den wyngaert]. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 120 the international court of justice, in the arrest warrant case, recognised that a former and incumbent foreign affairs minister ‘might be subject to criminal proceedings before certain international criminal courts where they have jurisdiction’.42 the court specifically cited the international criminal court as an example. this issue was indeed raised before the international criminal court in respect of an arrest warrant for the incumbent president of the sudan, omar hassan ahmad albashir. when, on 4 march 2009 and 12 july 2010, pre-trial chamber i of the international criminal court issued two warrants of arrest for omar al bashir for crimes against humanity and war crimes, his arrest was required in accordance with the rome statute.43 omar al-bashir was suspected of being criminally responsible as an indirect violator, or co-perpetrator, for the liable person in respect of the crime of genocide.44 since the arrest warrants were issued, president al-bashir has travelled to several countries, including the republic of kenya, djibouti, malawi, the republic of chad, south africa. although those countries are state parties to the rome statute and hence were obligated to arrest him, he has never been arrested.45 on 15 february 2013, pre-trial chamber ii of the court ‘requested the registry to send notes verbales to the republic of chad and the state of libya, enquiring about said visit, and reminding the former of its obligations with respect to the arrest and surrender of omar al-bashir to the court’. al bashir travelled to chad to attend a summit and departed from chad; however, the chadian government took no measure to arrest him. the international community called on chad to abide by the obligations decided upon by the court regarding the arrest warrant for al bashir and the government of chad was required to provide information to the chamber about al bashir’s alleged journey. on 26 march 2013, pre-trial chamber ii issued that chad had failed to cooperate with the international criminal court and indicated the non-compliance of chad to the obligations of the security council.46 al-bashir also attended the african union summit scheduled from 7 to 15 june 2015 in south africa. on 13 june 2015, pre-trial chamber ii asserted that the republic of south africa had an obligation to arrest and surrender albashir. south africa failed to arrest him. on 15 october 2015, upon south africa’s request, pre-trial chamber ii extended the deadline to submit a report regarding the failure of the south african government to arrest al-bashir.47 in respect of the jurisdiction, the pre-trial chamber declared that the official position of al-bashir as head of state did not free him from appearing before the 42 fox qc and webb (n 1) 558. 43 the prosecutor v al bashir, first arrest warrant [2009] icc-02/05-01/09 (pre-trial chamber i); the prosecutor v al bashir, second arrest warrant [2010] icc-02/05-01/09-95 (pre-trial chamber i); ‘rome statute of the international criminal court’ (n 15) article 58(1)(b). 44 the prosecutor v al bashir, second arrest warrant (n 43). 45 some non-state parties to the rome statute were also welcomed omar al-bashir: the islamic republic of mauritania, the people’s republic of china, people’s democratic republic of algeria, and the arab republic of egypt. see ‘bashir-watch’ <http://bashirwatch.org/> accessed 05 july 2018. 46 the prosecutor v omar al bashir (2013) icc-02/05-01/09-151 (pre-trial chamber ii). 47 the prosecutor v omar al bashir (2015) icc-02/05-01/09-242 (pre-trial chamber ii). selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 121 international criminal court. the chamber proposed four considerations in reaching this decision. first, the chamber emphasised that one of the crucial goals of the rome statute is to end impunity for perpetrators of violations of international crimes which amount to human rights violations. second, the chamber noted that article 27 of the statute must be applied to achieve this goal. this provision makes immunity non-applicable and enforces the criminal responsibility of all persons regardless of their official capacity in a state. third, as required by article 21 of the rome statute, other sources of law can be applied only if there is a gap in the rome statute that cannot be filled by interpreting the vienna convention on the law of the treaties with respect to internationally accepted human rights norms. fourth, the united nations security council has accepted that the investigation into the situation in sudan and any prosecution generated therefrom will be compatible with the statutory framework of the international court of justice.48 on this point, dapo akande stated that ‘the nature of the charter as a sort of constitutional document, and […] obligations under the charter ought to be regarded as taking priority over the customary international law’.49 sudan is not a state party to the rome statute; however, the united nations security council, in referring the case in darfur to the international criminal court, made reference to article 13(b) of the statute. subsequently, the council required that sudan should co-operate with the court.50 under chapter vii of the united nations charter, the security council possesses full authority to take measures in order to contribute to the maintenance of international peace and to maintain and restore international security. by becoming a member of the united nations, the sudanese government gives implicit consent to the security council for the abolition of head of state immunity, because article 25 of the charter requires member states to accept and execute the decisions of the council. it follows that immunity for al-bashir before the courts of foreign states has been implicitly abolished. it must be noted that abolishing immunity in relation to the accusations in the al-bashir case conforms with the security council’s objective, which is to avoid absolute impunity for perpetrators of fundamental human rights violations that pose a threat to international security and peace.51 international law does not prohibit investigation of alleged violations of human rights; in fact, international law supports such inquiries, even if the accused perpetrator 48 see the prosecutor v al bashir, first arrest warrant (n 43) at paras. 41, 42, 43, 44 and 45; see also jessica needham, ‘protection or prosecution for omar al bashir? the changing state of immunity in international criminal law’ (2011) 17 auckland university law review 219. 49 akande (n 17) 348. 50 needham (n 48) 247. 51 see generally sophie papillon, ‘has the united nations security council implicitly removed al bashir’s immunity?’ (2010) 10(2) international criminal law review 275. there is another perspective that claims that the implicit removal of immunity by the security council would be at odds with customary international law and treaty principles which provide immunity for serving heads of state. be that as it may, article 103 of the united nations charter reports that in ‘the event of a conflict between the obligations of the member of the united nations under the present charter and their obligations under any other international agreement, their obligations under the present charter shall prevail’. for a critique of the implicit removal of immunity by the council see paola gaeta, ‘does president al bashir enjoy immunity from arrest?’ (2009) 7 journal of international criminal justice 315. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 122 committed the crime as a state agent in a foreign state.52 this is evident in the history of international law, in which there are very significant codifications of the principle of individual accountability for violations of fundamental human rights. for example, the 1950 nuremberg principles highlighted that ‘any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment’.53 likewise, article 4 of the convention on the prevention and punishment of the crime of genocide reads as follows: ‘persons committing genocide or any of the other acts enumerated in article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’.54 furthermore, official reports and resolutions can be found under the united nations.55 prioritising the immunities for heads of state in cases involving violations of fundamental human rights produces a tension between the immunity principle and the protection of those human rights. that is to say, the prohibitions against certain violations of human rights are deemed as jus cogens in nature, and since jus cogens norms are in no case trumped by any other norm, the hierarchy should be established by considering the superiority of jus cogens norms. it follows that the protection of fundamental human rights takes priority under international law. on this point, it must be noted that where violations of fundamental human rights ‘are concerned, immunity cannot block investigations or prosecutions [of] such [violations], regardless of whether such proceedings are brought before national or before international courts’.56 to protect and improve the fundamental values and interests of human beings, the effective prohibition of certain violations of human rights has been recognised by the international community as having a jus cogens character. it follows that, if this hierarchically superior norm becomes at variance with the principles guiding head of state immunity, it should be trumped by those provisions which are designed to defend and maintain fundamental human rights.57 52 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [dissenting opinion of judge van den wyngaert]. 53 ‘principles of international law recognized in the charter of the nuremberg tribunal and in the judgment of the tribunal, 5 un gaor supp. (no. 12) at 11, u.n. doc. a/1316’ (n 12) principle 1. 54 ‘convention on the prevention and punishment of the crime of genocide adopted by general assembly of the united nations’ (united nations treaty series 1948) 78. the acts listed in article 3 are genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. 55 see for example united nations commission on human rights, ‘the administration of justice and the human rights of detainees, question of the impunity of perpetrators of human rights violations (civil and political) revised final report prepared by mr. joinet pursuant to sub-commission decision 1996/119’ (1997) un doc. e/cn.4/sub.2/1997/20/rev.1; united nations commission on human rights, ‘promotion and protection of human rights: impunity report of the independent expert to update the set of principles to combat impunity by diane orentlicher: addendum updated set of principles for the protection and promotion of human rights through action to combat impunity’ (2005) e/cn.4/2005/102/add.1. 56 arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [31] [dissenting opinion of judge van den wyngaert]. 57 see generally arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium) (n 21) [dissenting opinion of judge al-khasawneh]. selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 123 v. conclusion the maintenance of peaceful relations among states requires that heads of state be granted appropriate immunities from jurisdiction before the courts of foreign states. for the sake of maintaining an environment in which heads of state can carry out their international duties while visiting foreign countries, head of state immunity should certainly afford protection from criminal responsibility. however, when heads of state are suspected of having committed violations of fundamental human rights, they should not be exempt from punishment; in other words, immunity should not amount to impunity. at this point, it should be noted that while the doctrine of immunity should be maintained, this doctrine should no longer apply to situations in which transgression of fundamental human rights recognised as a peremptory norm of general international law has occurred. impunity always ‘presents a challenge to those responsible for preventing violations of fundamental human rights and establishing a just society. when impunity is allowed, it may become a significant obstacle to justice and peace’.58 former united nations secretary general kofi annan reinforced the rationale behind article 27 of the rome statute when he asserted that: in the prospect of an international criminal court lies the promise of universal justice. that is the simple and soaring hope of this vision. we are close to its realisation. we will do our part to see it through till the end. we ask you to do yours in our struggle to ensure that no ruler, no state, no junta and no army anywhere can abuse human rights with impunity. only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.59 head of state immunities are considered to be an essential element of international relations and international law. however, they are not jus cogens in nature. the protection of fundamental human rights should override these procedural immunities. political concerns may not allow states to waive the immunity of their own high-ranking officials, but as lauterpacht rightly noted, the ‘dignity of a foreign state may suffer more from an appeal to immunity than from a denial of it’.60 immunity from jurisdiction should on no account be applicable to fundamental human rights violations under international law which meet the threshold of a jus cogens norm, neither before domestic courts nor before international courts. heads of state should not be allowed to enjoy immunities when violations of such human rights have been committed. 58 ozdan (n 2) 51. 59 ‘establishment of an international criminal court: overview’ (rome statute of the international criminal court, 1999) <http://legal.un.org/icc/general/overview.htm> accessed 05 july 2018. 60 h lauterpacht, ‘the problem of jurisdictional immunities of foreign states’ (1951) 28 british year book of international law 220, 232. a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 124 vi. references books and journals akande d, ‘the legal nature of security council referrals to the icc and its impact on al bashir’s immunities’ (2009) 7 journal of international criminal justice 333 akande d and shah s, ‘immunities of state officials, international crimes, and foreign domestic courts’ (2010) 21 european journal of international law 815 brody r and ratner m (eds), the pinochet papers: the case of augusto pinochet ugarte in spain and britain (kluwer law international 2000) cassese a, ‘when may senior state officials be tried for international crimes? some comments on the congo v. belgium case’ (2002) 13 european journal of international law 853 criddle ej and fox-decent e, ‘a fiduciary theory of jus cogens’ (2009) 34 yale journal of international law 331 cryer r and others, an introduction to international criminal law and procedure (2nd edn, cambridge university press 2010) fomerand j, historical dictionary of human rights (rowman & littlefield 2014) fox qc h and webb p, the law of state immunity (3rd edn, oxford university press 2013) gaeta p, ‘official capacity and immunities’ in antonio cassese, paola gaeta and john rwd jones (eds), the rome statute of the international criminal court: a commentary, vol i (oxford university press 2002) ——, ‘does president al bashir enjoy immunity from arrest?’ (2009) 7 journal of international criminal justice 315 goldmann m, ‘arrest warrant case (democratic republic of the congo v belgium)’, max planck encyclopedia of public international law (mpepil) (oxford university press 2009) lauterpacht h, ‘the problem of jurisdictional immunities of foreign states’ (1951) 28 british year book of international law 220 minnerop p and others, world court digest 2001 2005, vol 4 (springer science & business media 2009) moghalu kc, ‘reconciling fractured societies: an african perspective on the role of judicial prosecutions’ in ramesh chandra thakur and petrus adrianus maria malcontent (eds), from sovereign impunity to international accountability: the search for justice in a world of states (united nations university press 2004) selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 125 morris m, ‘the democratic dilemma of the international criminal court’ (2002) 5 buffalo criminal law review 591 needham j, ‘protection or prosecution for omar al bashir? the changing state of immunity in international criminal law’ (2011) 17 auckland university law review 219 orakhelashvili a, ‘arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium)’ (2002) 96 american journal of international law 677 ozdan s, ‘immunity vs. impunity in international law: a human rights approach’ (2018) 4 baku state university law review 36 papillon s, ‘has the united nations security council implicitly removed al bashir’s immunity?’ (2010) 10 international criminal law review 275 pierson c, ‘pinochet and the end of immunity: england’s house of lords holds that a former head of state is not immune for torture’ (2000) 14 temple international and comparative law journal 263 solis gd, the law of armed conflict: international humanitarian law in war (cambridge university press 2010) stern b, ‘immunities for heads of state: where do we stand?’ in mark lattimer and philippe sands (eds), justice for crimes against humanity (hart publishing 2003) tunks m, ‘diplomats or defendants? defining the future of head-of-state immunity’ (2002) 52 duke law journal 651 watts sa, the legal position in international law of heads of states, heads of governments and foreign ministers, vol 247 (martinus nijhoff publishers 1994) wuerth i, ‘pinochet’s legacy reassessed’ (2012) 106 the american journal of international law 731 cases arrest warrant of 11 april 2000 (democratic republic of the congo v belgium) (2002) i.c.j. reports in re grand jury proceedings [1987] united states court of appeals, fourth circuit 700, 1108 817 f2d prosecutor v tihomir blaskic (1997) 110 ilr 687 (international criminal tribunal for the former yugoslavia) a critique of the demise of heads of state immunity in the age of human rights the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 126 r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 1) (1998) 4 aii er (house of lords) r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 2) (1999) 2 w.l.r. 272 (house of lords) r v bow street metropolitan stipendiary magistrate and others, ex parte pinochet ugarte (no 3) (2000) 1 a.c. 147 (house of lords) the prosecutor v al bashir, first arrest warrant (2009) icc-02/05–01/09 (pre-trial chamber i) the prosecutor v al bashir, second arrest warrant (2010) icc-02/05-01/09-95 (pretrial chamber i) the prosecutor v omar al bashir (2013) icc-02/05-01/09-151 (pre-trial chamber ii) the prosecutor v omar al bashir (2015) icc-02/05-01/09-242 (pre-trial chamber ii) yousuf v samantar (2012) 699 f 3d 763 (court of appeals, 4th circuit) united nations and other official documents belgium: act of 1999 concerning the punishment of grave breaches of international humanitarian law 1999 convention on the prevention and punishment of the crime of genocide adopted by general assembly of the united nations (united nations treaty series 1948) 78 international military tribunal for the far east charter (1946) kolodkin ra, ‘second report on immunity of state officials from foreign criminal jurisdiction, 62nd session’ (international law commission 2010) un doc. a/cn.4/631 nuremberg trial proceedings vol. 1 charter of the international military tribunal peace treaty of versailles 1919 principles of international law recognized in the charter of the nuremberg tribunal and in the judgment of the tribunal, 5 un gaor supp. (no. 12) at 11, u.n. doc. a/1316 rome statute of the international criminal court (un general assembly 2002) united nations commission on human rights, ‘the administration of justice and the human rights of detainees, question of the impunity of perpetrators of human rights violations (civil and political) revised final report prepared by mr. joinet pursuant to sub-commission decision 1996/119’ (1997) un doc. e/cn.4/sub.2/1997/20/rev.1 ——, ‘promotion and protection of human rights: impunity report of the independent expert to update the set of principles to combat impunity by diane orentlicher: selman ozdan the age of human rights journal, 11 (december 2018) pp. 108-127 issn: 2340-9592 doi: 10.17561/tahrj.n11.6 127 addendum updated set of principles for the protection and promotion of human rights through action to combat impunity’ (2005) e/cn.4/2005/102/add.1 un security council, statute of the international criminal tribunal for the former yugoslavia, sc res. 827, un scor 48th sess., 3217th mtg. at 1-2 1993 online sources bashir-watch <http://bashirwatch.org/> accessed 05 july 2018 establishment of an international criminal court: overview (rome statute of the international criminal court, 1999) <http://legal.un.org/icc/general/overview.htm> accessed 05 july 2018 i. introduction ii. developments of head of state immunity in international legal system iii. the problem of head of state immunity in relation to violations of human rights recognised as peremptory norms iv. protection of fundamental human rights vs. head of state impunity v. conclusion vi. references freedom of speech and expression versus the glorification of acts of terrorism: defining limits in the indian context the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 54 freedom of speech and expression versus the glorification of acts of terrorism: defining limits in the indian context vaibhav chadha* abstract: freedom of speech and expression is one of the essential rights for humans; however, some people in the guise of right to freedom of speech and expression glorify the acts of terrorism. in india, there are several laws making certain speeches punishable, but these laws fail to take into consideration speeches that glorify terrorists or acts of terrorism. the objective of this article is to examine the scope of provisions or laws that may be introduced to prohibit speech glorifying acts of terrorism in india while maintaining a balance with the right to freedom of speech and expression granted under the constitution of india, 1950. this article attempts to assess united nation security council resolution 1624 and laws enacted in the wake of terrorist attacks in european countries such as the united kingdom and france, and how they deal with speech that glorifies terrorism. this article also discusses case laws on glorification of terrorism of the european court of human rights. keywords: freedom of speech and expression, glorification of terrorism, united nation security council resolution 1624, apology of terrorism, unlawful activities (prevention) act 1967 and incitement to terrorism. summary: 1. introduction. 1.1. background. 2. significance of the right to freedom of speech and expression. 2.1. freedom of speech and expression in india. 2.2. should incitement to offence or violence be the only criterion for restricting speech glorifying terrorism?. 3. need for making glorification of terrorism a punishable offence in india. 3.1. scope of right to freedom of expression under european convention of human rights (echr). 3.2. analysing the unsc resolution 1624 and legislations in the uk and france. 3.2.1. unsc resolution 1624. 3.2.2. legislations in the united kingdom. 3.2.3. legislations in france. 4. evaluating provisions of the uk and french legislations in the indian context. 4.1. provisions recommended for india. 4.2. will prohibiting speech glorifying terrorism interfere with the right to freedom of speech and expression in india?. 5. conclusion. 1. introduction article 19(1)(a) of the constitution of india, 1950 provides every citizen a fundamental right to freedom of speech and expression but some citizens often misuse their right to freedom of speech granted under the constitution. in the garb of exercising freedom of speech, they make statements that glorify terrorism and in the absence of specific laws proscribing it, they get away unpunished. the major reason for it is despite enacting various anti-terror legislations such as unlawful activities (prevention) act, 1967 and others, india still does not have specific laws or provisions in existing laws that prohibit or criminalize speech that glorifies terrorists or acts of terrorism. * assistant professor at jindal global law school, o.p. jindal global university, india (vchadha@jgu.edu.in). mailto:vchadha@jgu.edu.in vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 55 at this juncture it is important to throw light on what constitutes terrorism in india. section 15 of unlawful activities (prevention) act, 1967 defines a ‘terrorist act’ as any act done with the intention to endanger or likely to endanger the ‘unity, integrity, security or sovereignty of india’ or with the motive to cause terror or likely to cause terror among people in india or in any foreign country. in hitendra vishnu thakur v. state of maharashtra1, the court held that ‘terrorism’ is one of the indicators of rise in lawlessness and violence. both violence and crime are a menace to an established order and are opposed to a civilized society.2 but it is the intended and organized use of coercive intimidation that differentiates ‘terrorism’ from other forms of violence.3 the court further held that every ‘terrorist’ may be considered a criminal but not every criminal can be tagged as a ‘terrorist’.4 while, in people’s union for civil liberties v. union of india,5 the court held that what separates ‘terrorism’ from other political offences is principally the ‘psychological’ factor that is always supported with violence and unrest. it instils fear in the public not only by making them subject to violence but also gives them a feeling of insecurity.6 in the wake of terrorist attacks, few european countries have in the recent past either enacted or amended existing laws and have targeted speech glorifying acts of terrorism. these new laws can offer help to the indian legislature in understanding the relevance of having such narrowly defined laws or provisions that criminalize speeches that glorify terrorism in a democracy like india. the advantage of having specific laws or provisions targeting such speech would be that it shall remove ambiguity from existing laws that might be misused to restrict the right to freedom of speech. the prime reason for comparing indian laws with those of the united kingdom (uk) and france in this article is that these countries are democracies and safeguard the right to freedom of speech and expression. the judiciary remains independent and can uphold the citizens’ right to free speech. in india, whenever any state or central government tried to curb the right to free speech of citizens, the courts have always come to the rescue of citizens. there are several other democracies around the world, which protect the right to freedom of speech, however, the author attempts to limit his analysis to the uk and france only. this article also discusses united nation security council (unsc) resolution 1624, international covenant on cultural and political rights (iccpr), european convention of human rights (echr), united nation declaration on human rights (udhr) and a few other international treaties. this article shall attempt to strike a balance between the rights of citizens to freedom of speech and expression on one hand and the need for curbing speech that glorifies acts of terrorism on the other hand. 1 (1994) 4 scc 602. 2 id.at para. 7. 3 ibid. 4 ibid. 5 (2004) 9 scc 580. 6 id. at para. 6. freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 56 1.1. background on 13 december 2001, five terrorists entered the indian parliament complex when more than 100 members of parliament were inside the parliament building and started firing haphazardly resulting in the death of five police officers, a parliament security guard, a gardener, and injuring 22 others.7 in the words of the then prime minister, the attack was not just an attack on the building of the parliament but a ‘warning to the entire nation.’8 afzal guru was found guilty for these terror attacks, and while upholding the death sentence of afzal guru, the supreme court of india observed, ‘short of participating in the actual attack, he did everything to set in motion the diabolic mission.’9 in february 2016, some students arranged an event commemorating the death anniversary of the terrorists afzal guru and maqbool bhat10 inside the campus of a central government university, namely the jawahar lal nehru university (jnu).11 during this event, many provocative and insensitive slogans were raised against the national integrity of india and in favour of the convicted terrorist afzal guru. the slogans were also quoted by delhi high court in its order dated 02 march 2016.12 central forensic science laboratory of india confirmed the authenticity of the video footage of the jnu incident.13 delhi police filed a charge sheet in this case on 14 january 2019, and the accused were charged with offences under section 124a (offence of sedition), 323 (punishment for voluntarily causing hurt), 465 (punishment for forgery), 471 (using as genuine a forged document or electronic record), 143 (punishment for being a member of an unlawful assembly), 149 (being a member of an unlawful assembly), 147 (punishment for rioting) and 120b (criminal conspiracy) of the indian penal code (ipc).14 7 firstpost 2013, ‘all you need to know about the 2001 parliament attack’, firstpost, 9 february, viewed 10 november 2020 <http://www.firstpost.com/india/all-you-need-to-know-about-the-2001-parliamentattack-619622.html>. 8 bbc, “2001 suicide attack on indian parliament”, bbc, viewed 08 november 2020 at<http://news.bbc. co.uk/onthisday/hi/dates/stories/december/13/newsid_3695000/3695057.stm>. 9 state (nct of delhi) v navjot sandhu, (2005) 11 scc 600, para. 237. 10 maqbool bhatt was a separatist charged for the murder of an indian army officer. his supporters in the uk, who were seeking his release, kidnapped and murdered indian diplomat ravindra mhatre. see, sreedharan, c 2001‘the rediff special’, rediff.com,13 february, viewed 04 january 2021 <https://www. rediff.com/news/2001/feb/13spec.htm>. 11 the hindu 2016, ‘jnu row: what is the outrage all about?’, the hindu, 16 february, viewed 04 january 2021 <http://www.thehindu.com/specials/in-depth/jnu-row-what-is-the-outrage-all-about/ article14479799.ece>. 12 kanhaiya kumar v. state of nct of delhi (2016) scc online del 1362, para. 29 13 the hindu 2016, ‘jnu event footage authentic, says report’, the hindu, 11 june (updated 18 october 2016), viewed 18 august 2021 <https://www.thehindu.com/news/cities/delhi/jnu-event-footage-authenticsays-report/article14414770.ece>. 14 livelaw.in 2019, ‘jnu sedition case : delhi police files chargesheet against kanhaiya kumar, umar khalid and others, livelaw.com, 14 january, viewed 11 october 2020 <https://www.livelaw.in/ news-updates/jnu-sedition-case-delhi-police-files-chargesheet-against-kanhaiya-kumar-umar-khalid-andothers-142103>. http://www.firstpost.com/india/all-you-need-to-know-about-the-2001-parliament-attack-619622.html http://www.firstpost.com/india/all-you-need-to-know-about-the-2001-parliament-attack-619622.html http://news.bbc.co.uk/onthisday/hi/dates/stories/december/13/newsid_3695000/3695057.stm http://news.bbc.co.uk/onthisday/hi/dates/stories/december/13/newsid_3695000/3695057.stm rediff.com https://www.rediff.com/news/2001/feb/13spec.htm https://www.rediff.com/news/2001/feb/13spec.htm http://www.thehindu.com/specials/in-depth/jnu-row-what-is-the-outrage-all-about/article14479799.ece http://www.thehindu.com/specials/in-depth/jnu-row-what-is-the-outrage-all-about/article14479799.ece https://www.thehindu.com/news/cities/delhi/jnu-event-footage-authentic-says-report/article14414770.ece https://www.thehindu.com/news/cities/delhi/jnu-event-footage-authentic-says-report/article14414770.ece livelaw.in livelaw.com https://www.livelaw.in/news-updates/jnu-sedition-case-delhi-police-files-chargesheet-against-kanhaiya-kumar-umar-khalid-and-others-142103 https://www.livelaw.in/news-updates/jnu-sedition-case-delhi-police-files-chargesheet-against-kanhaiya-kumar-umar-khalid-and-others-142103 https://www.livelaw.in/news-updates/jnu-sedition-case-delhi-police-files-chargesheet-against-kanhaiya-kumar-umar-khalid-and-others-142103 vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 57 on 28 february 2020, government of national capital territory of delhi gave sanction to delhi police to prosecute those involved in the raising of slogans in jnu and the government in its order stated that the 10 accused involved ‘prima facie committed an offence punishable under sections 124a and 120b’.15 in february 2021, a delhi court took the cognisance of the final report filed by the delhi police and summoned the accused persons to face trial for the offences under section 124a/ 323/ 465/ 471/ 149 and 120b of the indian penal code 1860.16 the prime reason why the jnu incident took place in the first place was due to the absence of laws and provisions in india that specifically prohibit speech glorifying terrorists and acts of terrorism. though india has laws that define terrorist17 and make support given to a terrorist organisation a criminal offence,18 but those laws do not categorically prohibit any kind of speech glorifying acts of terrorism. if india already had in place the laws that criminalized statements glorifying acts of terrorism or terrorists, then incident at jnu could have been averted. thus, this article aims to suggest that india needs to enact unambiguously defined laws that restrict speeches glorifying terrorism. 2. significance of the right to freedom of speech and expression article 19(1) and 19(2) of iccpr provides everyone a right to have opinions without interference and a right to freedom of expression. this right, however, comes with duties and responsibilities and is subject to some restrictions that can be imposed on the ground of respecting repute of others or in the interest of national security, public order…etc, under article 19(3)(a) & (b).19 india acceded to the iccpr on 10 april 1979.20 2.1. freedom of speech and expression in india the right to freedom of speech and expression is available to all citizens under article 19(1)(a) of the constitution of india, 1950. though the constitution provides a fundamental right to freedom of speech and expression, at the same time article 19(2) of the constitution provides that restrictions on the right to freedom of speech and expression can be imposed by the state in the interest of the ‘sovereignty and integrity of india, 15 hindustan times 2020, ‘sedition case: govt gives sanction to prosecute kanhaiya kumar’, hindustan times, 29 february, viewed 21 december 2020 <https://www.hindustantimes.com/cities/delhi-govt-gives -sanction-to-prosecute-kanhaiya-in-jnu-sedition-case/story-c3l1z9vpkr9crxted4i9dm.html>. 16 the economic times 2021, ‘jnu sedition case: delhi court takes cognisance of chargesheet against kanhaiya kumar, others’, the economic times,16 february, viewed 18 september 2021 <https:// economictimes.indiatimes.com/news/politics-and-nation/jnu-sedition-case-delhi-court-takes-cognisance -of-chargesheet-against-kanhaiya-kumar-others/articleshow/80968280.cms?from=mdr>. 17 terrorist affected areas (special courts) act, 1984, s. 2(1)(h). 18 uapa, s. 39. 19 art. 19(3)(a) & (b). 20 a handbook on international human rights conventions 2012 (page 22), national human rights commission, viewed 19 october 2020 <https://nhrc.nic.in/sites/default/files/a_handbook_on_international _hr_conventions.pdf>. https://www.hindustantimes.com/cities/delhi-govt-gives-sanction-to-prosecute-kanhaiya-in-jnu-sedition-case/story-c3l1z9vpkr9crxted4i9dm.html https://www.hindustantimes.com/cities/delhi-govt-gives-sanction-to-prosecute-kanhaiya-in-jnu-sedition-case/story-c3l1z9vpkr9crxted4i9dm.html https://economictimes.indiatimes.com/news/politics-and-nation/jnu-sedition-case-delhi-court-takes-cognisance-of-chargesheet-against-kanhaiya-kumar-others/articleshow/80968280.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/jnu-sedition-case-delhi-court-takes-cognisance-of-chargesheet-against-kanhaiya-kumar-others/articleshow/80968280.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/jnu-sedition-case-delhi-court-takes-cognisance-of-chargesheet-against-kanhaiya-kumar-others/articleshow/80968280.cms?from=mdr https://nhrc.nic.in/sites/default/files/a_handbook_on_international_hr_conventions.pdf https://nhrc.nic.in/sites/default/files/a_handbook_on_international_hr_conventions.pdf freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 58 the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.’21 important observations have been made by the courts in india regarding the importance of free speech from time to time. the supreme court in subramanium swamy v. union of india was of the view that it remains a cherished treasure in vibrant democracy,22 and in shreya singhal v. union of india the court reiterated the significance of this right and held that the freedom of thought and expression is of prime worth in a democracy and under the indian constitutional system it holds supreme importance.23 while freedom of speech and expression remains fundamental for strengthening a democracy, it also carries with it some duties. in subramanium swamy case it was also observed that freedom of expression is the most valuable right but at the same time the constitution of india envisages reasonable restriction upon such right.24 in sahara india real estate corpn. ltd. v. sebi, the court held that freedom of expression under the constitution of india is not an ‘absolute value.’25 the law commission in its 267th report observed that the right of freedom of speech and expression requires restrictions to avert any negative or destructive effects that may be caused by exercise of this right.26 in laxmi khandsari v. state of up, the court held that the fundamental rights laid down in the constitution of india are neither absolute nor unlimited but are subject to reasonable restrictions that the state can place in public interest under article 19(2) to 19(6).27 in ramlila maidan incident, in re, it was held that limitation imposed on freedom of speech and expression should be inside the structure of the established law, as endorsed by article 19(2) of the constitution of india.28 in shreya singhal v. union of india,29 the supreme court of india laid down three concepts for understanding freedom of speech and expression. the concepts are ‘discussion’, ‘advocacy’ and ‘incitement’. the court observed that even though unpopular, ‘discussion’ and ‘advocacy’ remain at the heart of article 19(1)(a) of the constitution of india. article 19(2) would come in when such ‘discussion’ or ‘advocacy’ gets as far as the point of incitement.30 the court further explained the difference between ‘advocacy’ and ‘incitement’ by citing mark antony’s speech in shakespeare’s ‘julius caesar’: ‘antony—good friends, sweet friends, let me not stir you up to such a sudden flood of mutiny. 21 the constitution of india. 22 (2016) 7 scc 221, para. 98. 23 (2015) 5 scc 1, para. 8. 24 subramanium swamy v. union of india, (2016) 7 scc 221, para. 195. 25 (2012) 10 scc 603, para. 25. 26 law commission of india report 2017, hate speech para 6.27 (report no. 267). 27 (1981) 2 scc 600, para. 16. 28 (2012) 5 scc 1, para. 35. 29 (2015) 5 scc 1. 30 shreya singhal v. union of india, para. 13. vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 59 they that have done this deed are honourable: what private griefs they have, alas, i know not, that made them do it: they are wise and honourable, and will, no doubt, with reasons answer you. i come not, friends, to steal away your hearts: i am no orator, as brutus is; but, as you know me all, a plain blunt man, that love my friend; and that they know full well that gave me public leave to speak of him: for i have neither wit, nor words, nor worth, action, nor utterance, nor the power of speech, to stir men's blood: i only speak right on; i tell you that which you yourselves do know; show you sweet caesar's wounds, poor poor dumb mouths, and bid them speak for me: but were i brutus, and brutus antony, there were an antony would ruffle up your spirits and put a tongue in every wound of caesar that should move the stones of rome to rise and mutiny. all—we'll mutiny.’31 the court held that it was at this juncture when a speech or expression may lead to public disorder or may affect sovereignty and integrity of india…etc, a law curbing such speech and expression may be made.32 thus, the court attempted to set out the grounds on which the state may interfere with the right to freedom of speech and expression. among other grounds for restrictions on freedom of speech under article 19(2) of the constitution of india, the court focused on the ground of ‘incitement to an offence.’ the court made a distinction between ‘advocacy’ and ‘incitement.’ a speech glorifying terrorism may not directly incite any offence or any kind of violence but may promote it under the guise of ‘advocacy’, which the court did not prohibit in shreya singhal case.33 by expanding the right to freedom of speech and making it subject to the only condition of incitement to an offence, as suggested in shreya singhal case, may limit the scope of restrictions that may be imposed by the state on speech glorifying terrorism. kofi annan in his keynote address to the closing plenary of the ‘international summit on democracy, terrorism and security’ had said that terrorism can never be ‘accepted or justified.’ he further stated that terrorism directly attacks the human rights and the rule of law.34 though the speech by students in jnu did not directly incite any 31 shreya singhal v. union of india, para. 13. 32 shreya singhal v. union of india, para. 13. 33 shreya singhal v. union of india, para. 13. 34 kofi annan’s key note address to the closing plenary of the international summit on democracy, terrorism and security (madrid, 10 march 2005), viewed 18 october 2020 <https://www.un.org/sg/en/content/sg/ speeches/2005-03-10/kofi-annan%e2%80%99s-keynote-address-closing-plenary-international-summit>. https://www.un.org/sg/en/content/sg/speeches/2005-03-10/kofi-annan%e2%80%99s-keynote-address-closing-plenary-international-summit https://www.un.org/sg/en/content/sg/speeches/2005-03-10/kofi-annan%e2%80%99s-keynote-address-closing-plenary-international-summit freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 60 offence but was clearly embedding a culture of promoting/ supporting terrorism. it rather glorified the terrorists, ignoring the acts committed by them. even the high court of delhi observed that the slogans raised were capable of having ‘demoralising effect’ on the martyrs’ families.35 2.2. should incitement to offence or violence be the only criterion for restricting speech glorifying terrorism? dr ben saul36 correctly points out: propaganda has long been the hand-maiden to violence: inciting, justifying and naturalizing it; ploughing the ground for violence by softening our psychological defences to it and desensitizing us to its brutalizing effects. (saul, 2005, p. 868) dr bibi van ginkel37 in her research paper argues that the term ‘incitement’ does not have any specific definition, however, both literature and the policy documents present various examples. it may comprise of diversity of elements such as inciting the members of public to perpetrate terrorist attacks, dehumanising the victims of acts of terrorists… etc. statements made in the public, demonstrations, political remarks, social media, radio, tv broadcast or distributing pamphlets are some of the commonly used methods deployed to spread such messages (ginkel, 2011, p. 3). preaching or publication of radical language helps in propagation of the extremist ideology and in mobilization of new members.38 today, violent extremist ideology drives a new threat of terrorism and combating that extremist ideology is an essential element of counter terrorism strategy (marchand, 2010, p. 142). the united kingdom’s counter terrorism strategy focuses on challenging the ideology that promotes violent extremism and focuses on obstructing those who encourage the violent extremist ideology.39 targeting those who spread violent extremist ideology is one of the ways of curbing this extremist ideology (marchand, 2010, p. 142). european countries have regularly recognised the legality of anti-incitement laws, particularly by making them conditional upon the judicial mechanism of balancing the interest of government in curbing incitement to terrorism on one hand and the right to free speech on the other (barak-erez & scharia, 2011, p. 26). in addition, the main united 35 kanhaiya kumar v. state of nct of delhi (2016) scc online del 1362, para. 42. 36 professor of international law and an australian research council future fellow at the university of sydney. 37 research fellow at international centre for counter-terrorism and a coordinator of the security cluster of the clingendael research department of the netherlands institute for international relations ‘clingendael’ 38 taher, a 2008, ‘third of muslim students back killings’, the sunday times, 27 july, viewed 30 november 2020, <https://www.thetimes.co.uk/article/a-third-of-muslim-students-back-killings-9fzqfzgmkz5>. 39 the united kingdom’s strategy for countering international terrorism 2009, pursue prevent protect prepare, p. 80, viewed 14 october 2020, <https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/228644/7547.pdf>. https://www.thetimes.co.uk/article/a-third-of-muslim-students-back-killings-9fzqfzgmkz5 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228644/7547.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228644/7547.pdf vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 61 nation bodies are in favour of prevention and prohibition of incitement to terrorism, irrespective of lack of legally binding obligations proscribing incitement to terrorism in the international law. they are also of the view that one of the most important part of counter terrorism strategy is barring of such kind of incitement (barak-erez & scharia, 2011, p. 23). the need for new laws or introduction of new provisions in the existing laws, to prohibit speech glorifying terrorism also derives from the fact that present day terrorist activities by extremist and quasi-religious groups is accompanied by the resurrection of venomous propaganda and provocative rhetoric, which is facilitated by inexpensive digital technology and videos of terrorists that are distributed over the internet (saul, 2005, p. 868). uk government’s 2004 classified report, which was later leaked to the media, found well-educated graduates being targeted by extremist recruiters.40 university campus is a place for young minds to exercise their right to freedom of speech and expression and engage in various discussions including the ones critical of government and its policies. no government should indulge in curbing free speech on university campuses. however, in the fight against terrorism, speeches that do propaganda for terrorist, even though indirectly, need to be restricted. speeches glorifying any act of terrorism at university campuses or other places must be prohibited because this culture of promoting or supporting such speech may result in creation of an environment, which is conducive to extremist views. this may not only be limited to an atmosphere that nurtures speeches glorifying terrorism but may go further in justifying all terror acts and may later develop into extremist ideology, which may even encourage others in joining terror groups and in committing the acts of terrorism. hence, in the light of such a situation it may be suggested that incitement to criminal offence or violence should not be the sole criterion for restricting speech glorifying terrorism as mentioned by supreme court of india in shreya singhal case, and attention must be paid to speeches that even do propaganda for acts of terrorism. 3. need for making glorification of terrorism a punishable offence in india many laws still in force in india are either too old or fail to take into consideration the contemporary problems. unlawful activities (prevention) act 1967 (uapa), the foremost anti-terror legislation in india, defines ‘unlawful activity’ as an act that supports cession or secession of a part of the territory of india, or disclaims, questions the sovereignty of india and integrity of india, or promotes disaffection against india.41 section 39 of the uapa makes giving support to a terrorist organisation an offence. a person perpetrates the offence of providing ‘support’ to a terrorist outfit if he invites support for the terrorist 40 winnett, r & leppard, d 2005, ‘leaked no 10 dossier reveals al-qaeda’s british recruits’, the sunday times, 10 july, viewed 18 november 2020, <https://www.thetimes.co.uk/article/leaked-no-10-dossierreveals-al-qaedas-british-recruits-9lpg68xw93r>. 41 s.2 (o). https://www.thetimes.co.uk/article/leaked-no-10-dossier-reveals-al-qaedas-british-recruits-9lpg68xw93r https://www.thetimes.co.uk/article/leaked-no-10-dossier-reveals-al-qaedas-british-recruits-9lpg68xw93r freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 62 organisation with the motive of promoting the activities of that organisation42 or if he organises a gathering to promote the activities of terrorist outfit.43 the accused in the jnu incident have also been charged under section 124a ipc. section 124a of the ipc sets out the offence of sedition and forbids the use of signs, representations or words that may promote hatred or causes or seeks to cause disaffection towards government established by law and the maximum punishment for the offence of sedition is life imprisonment. in hardik bharatbhai patel v. state of gujarat, the high court of gujarat was of the viewpoint that if the speaker in his speech or statement urges others to adopt violence, then it can be considered that it is meant to rouse disaffection towards the government established by law and it would constitute the offence of section 124a of ipc.44 however, the scope for application of section 124a of ipc is restricted by the judgement of supreme court in kedar nath singh v state of bihar, wherein the court held that the use of law of sedition must be limited only where there is instigation to commit violence or intention to create ‘public disorder’ or disrupt ‘public peace.’45 the existing situation in india demands enactment of new laws or provisions that specifically criminalize glorification of terrorism as the existing laws are inadequate in dealing with such speeches. in this background, it is recommended that the indian legislature may consider evaluating the unsc resolution 1624 and legislations existing in some european countries that specifically prohibit glorification of terrorism, while ensuring freedom of speech at the same time. also, a reference can be made to the landmark judgements of european court of human rights. 3.1. scope of right to freedom of expression under european convention of human rights (echr) this section discusses case laws where some individuals approached european court of human rights claiming violation of article 10 of the echr. though india is not a state party to the echr, however, the test applied by european court of human rights in different cases may help indian courts in understanding the demarcating line between the protected speech and those speeches that may not fall under the category of protected speech. article 10(1) of the echr gives everyone, within the jurisdiction, right to freedom of speech and expression. article 10 of echr is more of a collective right than merely an individual freedom because it preserves the right of an individual to express himself in all possible forms but at the same time, it comes with civil and political duties towards 42 s. 39(1)(a). 43 s. 39(1)(b). 44 2016. (1) rcr (criminal) 542, para. 14. 45 air 1962 sc 955, para. 27. vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 63 the community (thorgeirsdottir, 2004, p. 607). article 10(1) includes all expressions, whatever the content maybe, while article 10(2) determines the basis upon which an intrusion with the rights may be upheld (thorgeirsdottir, 2004, p. 606). glorification is a debatable term and goes beyond ‘incitement to violence,’ which is a ground for imposing restriction on freedom of speech under article 10 of echr. it is not clear how far glorification goes from actual incitement to violence (davis, 2013, p. 503). article 10 of echr does not provide protection to the expressions that aims to incite, propagate, or justify hatred based on intolerance.46article 10(1) of echr is subject to article 10(2), which allows imposition of restrictions and penalties for safeguarding national security, territorial integrity, public safety, avoiding disorder…etc. in handyside v the united kingdom,47 the european court of human rights observed that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed on the right to freedom of expression must be in proportion to the legitimate aim pursued.48at the outset, european court of human rights assesses whether under article 10(1) of echr there is an interference with the freedom of expression, and if there is an interference, then the court assesses whether such interference can be justified under article 10(2) by following three standards. the standards are, firstly, whether the interference is ‘prescribed by law,’ secondly, does it pursue a ‘legitimate aim’, and thirdly, whether it is ‘necessary in a democratic society’ (harris et al., 2014, p. 614). on analysing the decisions of european court of human rights, it can be understood that the first requirement, ‘prescribed by law’ necessitates identification of the basis in the national law by the state authorities under which a limitation on the right under article 10 can be imposed. the second prerequisite of legitimate aim has hardly given rise to any significant deliberation in the case law. regarding the third standard, the court has considered ‘necessary in a democratic society’ to mean ‘pressing social need’, which is a proportional balance between the medium chosen to satisfy a lawful end and the extent of harm foisted upon expression rights (harris et al., 2014, p. 614). these standards, though not obligatory, may be helpful for indian courts to evolve some new standards when the scope of right to freedom of speech and expression under article 19(1)(a) of the constitution of india is involved. leroy v france49 is a landmark case related to the glorification of terrorism. on 13 september 2001, a weekly newspaper ekaitza in france published a cartoon drawn by denis leroy that represented 11 september 2001 attack on twin towers in us, with a caption ‘we have all dreamt of it…hamas did it.’ post publication, under the charges of complicity in condoning terrorism, proceedings were brought against mr leroy and newspaper’s publishing director. both were convicted by the court for complicity in condoning terrorism. the pau court of appeal in september 2002 upheld the judgement of the first instance court. the main part of the appeal on points of law lodged by the 46 gündüz v turkey app no 35071/97 (echr, 4 december 2003) 47 app no 5493/72 (echr, 7 december1976)., 48 handyside v the united kingdom app no 5493/72 (echr, 7 december1976) [49]. 49 app no 36109/03 (echr, 2 october 2008). freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 64 applicant was dismissed by the court of cassation (highest court in the french judicial system). in november 2003, an application was lodged by him before the european court of human rights relying on article 10 of echr which grants freedom of expression. before european court of human rights, mr leroy claimed that his cartoon was meant to convey only his anti – american political perspective in a satirical form and was exercise of freedom of expression granted under article 10 of echr. european court of human rights unanimously disagreed with the contentions raised by mr leroy and stated that the cartoon was not limited to criticism of american imperialism but glorified the destruction of us by violent means. also, the caption of the cartoon reflected that he supported those who attacked twin towers and committed violence against thousands of civilians. the european court of human rights further held that the language used by the applicant belittled the dignity of the victims and the drawing had evoked public reaction and it was capable of rousing violence and affect the public order in region where the newspaper was circulated. the court finally held that the fine imposed on the applicant was not disproportionate and the measure imposed was not disproportionate to the legitimate aim pursued. hence, there was no violation of article 10 of echr. it is significant that in the leroy case the court did not consider it important that no violence had actually taken place. it was the likelihood of violence that was significant and not the actuality of violence (belavusau, 2010, p. 373, cited in buyse, 2014, p. 500). the court considered three important factors; firstly, that the cartoon glorified destruction of america by violent means and supported those who killed civilians, secondly, the court took into consideration that such cartoons were capable of arousing public sentiments and thirdly, crucial element was not the actual violence taking place but even the possibility of violence was sufficient to make it punishable. it can be suggested that the european court of human rights took into consideration the probable consequence of a speech on public irrespective of the fact that such speech did not directly incite violence. in the jnu incident, slogans raised can be compared to the headline used by mr leroy. it would not be wrong to suggest that the reasoning applied by european court of human rights in leroy case may be applied in the present case by the indian courts as the slogans raised at jnu were indeed capable of provoking public sentiments, which could give rise to violence and disrupt the public order as could be seen from the fact that some students at the university protested against such provocative slogans being raised in the campus. the slogans reflected that they were made in favour of those who committed violence against indians and belittled dignity of victims of terrorist attacks. also, the slogans raised glorified destruction of india by violent means. it is pertinent to mention here that like european union, indian judiciary is also independent and capable of punishing the wrong and protecting the innocent. the standards followed by the european court of human rights, though not binding, can help and provide guidance to the indian courts in deciding matters where laws interfering with freedom of speech and expression are challenged. case laws such as leroy would provide a path to the courts in india to develop similar approach in interpreting vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 65 such laws that parliament may enact in future restricting freedom of speech in the interest of national security or public order under article 19(2) of the constitution of india 1950. 3.2. analysing the unsc resolution 1624 and legislations in the uk and france the basic proposition of international human rights is the intrinsic dignity and equality of all individuals.50 the objective of this section is to assist the indian legislature in understanding the scope of the right to freedom of speech and at the same time consider imposing reasonable restrictions, if any, on the right to freedom of speech in india in the light of unsc resolution 1624 and domestic laws of the uk and france. 3.2.1. unsc resolution 1624 unsc resolution 1624 was adopted on 14 september 2005 in the wake of 7 july 2005 london bombings. after adoption of the unsc resolution 1624, tony blair, prime minister of the uk, stated that in order to combat the problem of terrorism, the world must unite in resisting its poisonous propaganda and not merely in condemning the acts of terrorism.51 he also said that action must be taken against those who give twisted reasoning and wretched excuses for acts of terrorism.52 prime minister blair’s statement indicated that the fight against terrorism now included combating the ideology that supported or even promoted it. the unsc resolution 1624 is the first universal instrument that directly deals with the issue of incitement to terrorism (ronen, 2010, p. 646). the preamble of the resolution 1624 asks states to repudiate attempts aimed at ‘justification or glorification (apologie) of terrorist act’ that may lead to further incitement of such acts.53 further, it calls upon member states to forbid ‘incitement’ to the commission of acts of terrorism.54 unsc resolution 1624 proposed to make ‘incitement to terrorism’ an inchoate offence by calling upon the states to make it a criminal offence, notwithstanding the terrorist act took place or not (ginkel, 2011, p.3). however, it does not clarify what constitutes the offence of incitement to ‘terrorist acts’ (ronen, 2010, p. 660). the preamble of the unsc resolution 1624 also evokes the right to freedom of expression mentioned in article 19 of the udhr and in article 19 of iccpr and clarifies that any limitation on the right to freedom of expression may be imposed by law in accordance with the grounds stated in paragraph 3 of article 19 of the iccpr.55 fighting 50 law commission of india report 2017, hate speech para 6.3 (report no. 267). 51 press release 2005, security council meeting of world leaders calls for legal prohibition of terrorist incitement, enhanced steps to prevent armed conflict, sc/8496, 14 september, viewed 18 november 2020 <https://www.un.org/press/en/2005/sc8496.doc.htm>. 52 press release 2005, security council meeting of world leaders calls for legal prohibition of terrorist incitement, enhanced steps to prevent armed conflict, sc/8496, 14 september, viewed 18 november 2020 <https://www.un.org/press/en/2005/sc8496.doc.htm>. 53 un security council, s/res/1624 (14 september 2005), p. no. 1. 54 un security council, s/res/1624 (14 september 2005), p. no. 3. 55 un security council, s/res/1624 (14 september 2005), p. no. 1, 2. https://www.un.org/press/en/2005/sc8496.doc.htm https://www.un.org/press/en/2005/sc8496.doc.htm freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 66 the incitement that acts as a medium in the formation of a situation nurturing terrorism is the primary objective of resolution 1624 (ronen, 2010, p. 674). dr yaël ronen56 argues that the modern terrorism, which relies on appealing to hearts and minds, influences resolution 1624. the willingness to act (commit terrorist attacks) emerges from the pressure mounted by the inciters of acts of terrorism, who plant and nurture the ideological basis in the public. this aim is accomplished not by any direct demand for action at earlier stages but by continuous vilification and denigration of the target. thus, the prohibition sought under resolution 1624 must include acts that go beyond direct call for action to successfully avert such activities (ronen, 2010, p. 663). the unsc resolution 1624 does not define ‘incitement’ and it remains unclear whether ‘incitement’ will include indirect incitement, private incitement or apologie of terrorism (saul, 2005, p. 870). as per the report of committee of experts on terrorism, apologie can be understood as the ‘public expression of praise, support or justification of terrorists and/ or terrorist acts.’57 however, un secretary general in his guidelines for unsc resolution 1624 (2005) stated that only incitement to terrorism, which ‘directly’ promotes ‘commission of a crime’ must be made a punishable offence and a speech that glorifies acts of terrorism, should not be criminalized because the states must comply with the international protections for freedom of expression.58 dr yaël ronen rightly suggests that both resolution 1624 and its interpretation by the secretary general are discouraging because the resolution asks states to prohibit incitement of acts of terrorism, but it does not extend to include ‘justification or glorification (apologie)’ of terrorist acts, which may encourage more terrorist acts. though the unsc resolution 1624 explicitly does not prohibit states from making indirect advocacy of terrorism a punishable offence, but the guidelines laid down by the secretary general do so (ronen, 2010, p. 663). guidelines by secretary general also ask states to distinguish incitement from glorification and assert that incitement can be proscribed but not glorification because it may not reach a point to trigger or encourage the commission of terrorist activities.59 guidelines suggest that in cases where commission of act of terrorism is promoted by an apologie, even then it cannot be restricted because it is not ‘direct.’ the way the guidelines of secretary general describe the offence, it may even fail to address the purpose for which the offence was created under the unsc resolution (ronen, 2010, p. 664). 56 assistant professor at sha’arei mishpat college, israel and a former diplomat in the israeli foreign service. 57 committee of experts on terrorism 2004, “apologie du terrorisme” and “incitement to terrorism” analytical report, 3rd meeting, (strasbourg, 24 june), codexter 5. 58 un secretary general 2008, the protection of human rights and fundamental freedoms while countering terrorism, un doc a/63/337, 28 august, para. 60-62. 59 un secretary general 2008, the protection of human rights and fundamental freedoms while countering terrorism, un doc a/63/337, 28 august, para. 61. vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 67 dr ronen further argues that these guidelines also fail to take into consideration the role-played by incitement in promoting an environment that nurtures act of terrorism (ronen, 2010, p. 668). the necessity of preventing an environment favourable to terrorism must supersede the concern for freedom of speech, while indirect advocacy of acts of terrorism must be considered a criminal offence (ronen, 2010, p. 665). resolution 1624 does not demand states to adopt criminal prohibition on incitement, however, the context in which the resolution was adopted indicates the intention to include a criminal prohibition because the resolution makes a call to the states to act ‘by all means’ and to take ‘measures as may be necessary and appropriate’ (ronen, 2010, p. 668). chapter vii resolutions of the unsc are legally binding on all member states of the un (weiner, 2006, p. 425). however, resolution 1624 (2005) adopted by the security council is neither a chapter vii resolution nor its language is mandatory in nature (bianchi, 2006, pp. 1047-48). for the implementation of its anti-terror resolutions, the unsc is completely dependent on the un member states because the steps taken by the unsc demand effective execution of the domestic enforcement machinery of the states. therefore, the success of action taken at the international level is dependent on the inclination and ability of the states to embrace international standards in their national legal systems and making them subject to the adjudication and enforcement procedures of those international standards (bianchi, 2006, p. 1045). it is the environment conducive to terrorism, which must be nipped in the bud to prevent any serious repercussions in the future. free speech holds importance but not at the cost of creating an environment that supports terrorism. 3.2.2. legislations in the united kingdom in europe, there has been a rise in the trend of criminalizing those statements, which do not go so far in inciting or promoting violence or acts of terrorism but present them favourably.60 pm tony blair in a speech post 7 july, 2005 london bombings stated that terrorism is an ‘evil ideology’ and a battle of ‘ideas, hearts and minds.’61 he further mentioned that to win the fight against terrorism there is a need to combat not only the methods employed by terrorists, but also their ‘views’ as the fight is against ‘barbaric ideas’ of terrorists and not just limited to their barbaric acts.62 thus, the battle against terrorism is not only limited to the physical acts of terrorism but goes beyond and focuses on fighting the extremist ideology, which nurtures and supports terrorism. in the aftermath of london bombings, the uk government came up with a strong anti-terrorism legislation, namely the terrorism act 2006. section 1 of this act 60 houry, n 2018, ‘france’s creeping terrorism laws restricting free speech’, just security, 30 may, viewed 24 november 2020 <https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech/>. 61 words of prime minister tony blair in a speech after 7 july 2005 london bombings 2005, ‘full text: blair speech on terror”, bbc, 16 july, viewed 14 december 2020, <http://news.bbc.co.uk/2/hi/uk_ news/4689363.stm>. 62 words of prime minister tony blair in a speech after 7 july 2005 london bombings 2005, ‘full text: blair speech on terror”, bbc, 16 july, viewed 14 december 2020, <http://news.bbc.co.uk/2/hi/ uk_news/4689363.stm>. https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech http://news.bbc.co.uk/2/hi/uk_news/4689363.stm http://news.bbc.co.uk/2/hi/uk_news/4689363.stm http://news.bbc.co.uk/2/hi/uk_news/4689363.stm http://news.bbc.co.uk/2/hi/uk_news/4689363.stm freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 68 criminalizes encouragement and glorification of terrorism. it applies to the statements that are understood by some or all members of the society to whom it is published as a direct or indirect encouragement to the commission, preparation or instigation of the acts of terrorism or convention offences.63 it includes the statements that glorify the ‘commission or preparation’ of acts of terrorism or convention offences.64section 1(5) of the act makes it irrelevant whether such a statement actually encouraged or induced commission of any offence or not. as per section 20(2) of the act, ‘glorification’ includes all kinds of praise or celebration (of acts of terrorism).65 regarding interpretation of the term ‘glorification’ in section 1(1),66 home secretary charles clarke suggested that it should comprise of statements such as ‘terrorists go straight to paradise when they die.’67 this suggests speeches that support terrorist acts, though indirectly, would be covered under the scope of this offence. 3.2.3. legislations in france the french constitution acknowledges the right to freedom of speech but at the same time also permits legislation restricting it.68 post charlie hebdo incident, france has enhanced its anti-terrorism laws including those putting restrictions on speech. france had the offence of ‘apology of terrorism’ in the french press law 1881; however, the application of this law was limited and applied subject to various precautions until finally it was added in the french penal code in november 2014.69 article 421-2-5 of the french penal code makes direct provocation of acts of terrorism or public apology of acts of terrorism a punishable offence carrying five years’ imprisonment and a fine of €75,000. french law clarifies that presenting or commenting in favour of a terrorist act already carried out amounts to the offence of ‘apology of terrorism.’70 however, apology is not the same as negation. when a person totally or partially rejects the terrorist acts without accepting them directly, it constitutes denial of terrorist acts. for punishment under the french law, the apology should have been made in the public.71as per the data of french ministry of justice, three persons were convicted 63 terrorism act, 2006, s. 1(1). 64 terrorism act, 2006, s. 1(2). 65 terrorism act, 2006, s. 20. 66 terrorism act, 2006. 67 caldwell, c 2006, ‘after londonistan’, the new york times magazine, 25 june, viewed 18 december 2020 < https://www.nytimes.com/2006/06/25/magazine/25london.html >. 68 weber, a 2015, ‘falqs: freedom of speech in france’, library of congress, 27 march, viewed 18 december 2020, <https://blogs.loc.gov/law/2015/03/falqs-freedom-of-speech-in-france/>. 69 houry, n 2018, ‘france’s creeping terrorism laws restricting free speech’, just security, 30 may, viewed 24 november 2020 <https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech/>. 70 definition, service-public.fr, viewed 14 october 2020, <https://www.service-public.fr/particuliers/ vosdroits/f32512?lang=en >. 71 definition, service-public.fr, viewed 14 october 2020, <https://www.service-public.fr/particuliers/ vosdroits/f32512?lang=en >. https://www.nytimes.com/2006/06/25/magazine/25london.html https://blogs.loc.gov/law/2015/03/falqs-freedom-of-speech-in-france https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 69 under the offence of apology for terrorism in the year 2014. the number of convictions rose to 230 in year 2015 and 306 in 2016.72 the french law further defines ‘direct incitement to terrorism’ as an encouragement to perpetrate terrorist acts that have already been predetermined. it is an inducement to carry out acts in the future and not an approval of the acts already perpetrated.73 however, making such remarks before a large gathering is not an essential criterion for this offence.74 the french law also allows associations assisting the victims of terrorism to prosecute the person making such apology or provocation, and also entitles such associations to claim damages by becoming a civil party.75 this is a progressive step as it takes into consideration the impact of such speech on the victims of terrorist attacks and gives them a right to claim damages from terror apologists. the relevance of incorporating provisions from the uk and french legislations in india shall be discussed in the next section. 4. evaluating provisions of the uk and french legislations in the indian context criminalizing incitement to acts of terrorists serves the purpose of making early intervention at the domestic and international level for combating terrorism driven by extreme ideology (ronen, 2010, p. 673). prof. eric barendt76 argues that it is risky to prohibit speeches encouraging terrorism because it will empower the government to restrict those speeches, which it ‘dislikes’ (barendt, 2009, p.453). this view needs reconsideration because it should be made clear that the laws curtailing speech glorifying acts of terrorism must be narrowly defined leaving no scope for ambiguity. this will help in avoiding unnecessary restrictions on speeches by the government and shall allow it to restrict only those speeches that glorify terrorism. a speech that questions or challenges the government on various issues should not be prohibited because it contributes towards a constructive democracy. a speech glorifying or encouraging any form of terrorism must be held distinct from a political speech, or a speech criticising any government, its policies, or leaders. such speech forms an essential element of a democracy, and it should never be stifled by any government. however, a speech glorifying terrorism does not question any government, political party or a leader 72 houry, n 2018, ‘france’s creeping terrorism laws restricting free speech’, just security, 30 may, viewed 24 november 2020 < https://www.justsecurity.org/57118/frances-creeping-terrorism-lawsrestricting-free-speech/>. 73 definition, service-public.fr, viewed 14 october 2020, <https://www.service-public.fr/particuliers/ vosdroits/f32512?lang=en >. 74 definition, service-public.fr, viewed 14 october 2020, <https://www.service-public.fr/particuliers/ vosdroits/f32512?lang=en >. 75 initiation of legal proceedings, service-public.fr, viewed 14 october 2020, < https://www.service-public. fr/particuliers/vosdroits/f32512?lang=en >. 76 emeritus professor of media law, faculty of law, ucl. https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech https://www.justsecurity.org/57118/frances-creeping-terrorism-laws-restricting-free-speech https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 70 but represents a view contrary to the democratic values of any nation and deserves to be prohibited. freedom of speech and expression is the most treasured possession of all human beings, but it also carries with it responsibilities. everyone has a responsibility of not inflicting harm unto others and not providing support to the acts of terrorism. under article 19(2) of the constitution of india, the indian parliament has the power to make laws imposing ‘reasonable restrictions’ on right to freedom of speech granted under article 19(1)(a) but unfortunately no law or provision has been made so far, which specifically prohibits speech glorifying terrorism. there are some provisions in the indian penal code, which makes certain speeches a criminal offence. section 153b of the ipc makes imputations and assertions, whether spoken or written, a punishable offence; section 153a criminalizes fostering enmity between different groups based on race, religion, residence…etc, and section 295a makes those deliberate and malicious acts a punishable offence that are made with the purpose of outraging religious feelings of any class. despite such provisions in the penal code restricting and criminalizing certain forms of speech, none of them per se prohibits a speech glorifying terrorism. 4.1. provisions recommended for india india has a lot of scope to learn from the laws enacted in the uk and france that specifically target speech glorifying terrorism. these laws do not restrict free speech but impose limitations on the speech that glorifies terrorism or amounts to terror apologie. such restrictions help in curbing trend or phenomenon which supports acts of terrorism. in view of the above discussion, it can be recommended that if section 39 of unlawful activities (prevention) act, 1967 (uapa) is amended by incorporating relevant provisions from laws in the uk and france, it will enable the government in restricting the speech glorifying acts of terrorism in india. to restrict such speeches, penalties may be imposed in the form of a heavy fine or imprisonment, depending on the gravity or content of the speech. section 39 of uapa sets out the offence of giving support to a terrorist organisation and considers inviting support for a terrorist organisation as a criminal offence. an overall reading of the laws of the uk and france offer an opportunity to india to expand the scope of section 39. section 39 uapa may be expanded to include the offence of ‘glorification of terrorism’ by inserting a new section 39a by taking the cue from definition provided under the law currently existing in the uk and this would help in filling the vacuum that exists in the laws dealing with terrorism in india. this would help in preventing anyone from making a speech glorifying terrorism on the indian soil. section 1 of the uk terrorism act 2006 strictly prohibits encouragement and glorification of terrorism and clarifies that glorification includes ‘all kinds of praise or celebration’ of acts of terrorism. by providing ‘glorification’ clause and defining what can vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 71 be included in it, there shall be more precision and it would assist in preventing the misuse of such provisions by law enforcement agencies. the provision in the uk can help in defining a new offence of ‘glorification of terrorism’ in india under section 39a of uapa and adding further clarity in the definition would make it more effective. another new section 39b on lines of french law may be introduced, which would make ‘apology of terrorism’ a criminal offence. france proscribes ‘presenting or commenting favourably on either terrorist acts in general or specific terrorist acts already committed’.77 in addition, the french law clarifies that in order to be punished under this law, the apology must have been made before the public.78 it does not make the speech subject to ‘incitement to violence’ or ‘direct call to terrorism’. india can learn from this law by adding an offence of ‘apology of terrorism’, which is presently not specifically considered as an offence in india under any law. it may reasonably serve the purpose of curbing speeches promoting terror apology. the french law has also made a distinction between ‘apology of terrorism’ and ‘provocation to terrorism.’ it criminalizes both and leaves no scope for confusion between the two. therefore, it is suggested that india should introduce a new section 39b to uapa, which after the offence of ‘glorification of terrorism’ would make ‘apology of terrorism’ a separate offence. this would help in curbing speech, which may not directly amount to ‘glorification of terrorism,’ but presents terrorist attacks favourably. france also allows associations assisting victims of terrorist attacks to prosecute the perpetrators criminally or seek damages as a civil matter.79 thus, we can see that french law gives importance to impact such speech can cause on the victims of terrorism, which may result in their disparagement or humiliation. india can inculcate provisions of the french law, which takes into consideration the humiliation faced by victims of terrorist offenses and empowers them to claim damages. it can be incorporated through a new section 39c in uapa. this would address the sufferings caused to the victims of terrorist attacks and the families of the victims, who feel humiliated and distressed when someone makes a speech supporting terrorists. the narrowly designed definitions restricting glorification of terrorism and terror apology introduced in anti-terror laws in countries such as france and the uk in the wake of terrorist attacks certainly require deliberation by the indian legislature so that these provisions can also be incorporated in the indian laws. 77 definition: apology of terrorism, service-public.fr, viewed 14 october 2020, < https://www.servicepublic.fr/particuliers/vosdroits/f32512?lang=en >. 78 definition: apology of terrorism, service-public.fr, viewed 14 october 2020, < https://www.servicepublic.fr/particuliers/vosdroits/f32512?lang=en >. 79 initiation of legal proceedings, service-public.fr, viewed 14 october 2020, < https://www.service-public. fr/particuliers/vosdroits/f32512?lang=en >. https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en https://www.service-public.fr/particuliers/vosdroits/f32512?lang=en freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 72 4.2. will prohibiting speech glorifying terrorism interfere with the right to freedom of speech and expression in india? in devidas ramachandra tuljapurkar v. state of maharashtra,80 while accepting the argument that there should be no constricted interpretation of freedom of speech and expression, the court held that this did not connote that there can never be any restriction.81 in addition to it, in laxmi khandsari v. state of up, the supreme court held that the restriction imposed must be in public interest and should maintain a balance between deprivation of a right and evil sought to be averted by that restriction.82 national laws allowing limitations on the right to freedom of expression should be interpreted narrowly and the action taken by the government must be open to scrutiny (davis, 2013, p. 349). in subramanium swamy v. union of india,83 writ petition under article 32 of the constitution of india, 1950 was filed challenging the constitutional validity of criminal defamation law in india. while upholding constitutional validity of the defamation laws on the grounds of reasonable restriction, the court observed that a restriction placed on a constitutional right must be proportional in order to be constitutional. the court further observed that the law placing limitations on the constitutional rights can be considered proportional if it aims to attain a proper purpose, is reasonably linked to the purpose and if those steps are essential to achieve the purpose. in addition, the restrictions imposed should not be of arbitrary or excessive nature that surpasses what is required in the public interest.84 it is recommended that the criterion laid down in the subramanium swamy case85 by supreme court should be followed by the courts in interpreting laws prohibiting speech glorifying acts of terrorism by the courts in india and not those laid down in shreya singhal case, which demand ‘incitement’ and not ‘advocacy’ as an essential ingredient for prohibiting speech.86 as it fails to take into consideration the possibility of harm that can be caused by advocacy itself. laws prohibiting ‘glorification of terrorism’ and ‘apology of terrorism’ recommended above as new section 39a, 39b and 39c of uapa would meet the criterions laid down in subramanium swamy case. the recommended laws, imposing restrictions on the right to freedom of speech and expression by prohibiting certain kind of speeches shall be regarded proportional because such laws are for ‘proper purpose,’ the purpose of which is to prevent speeches glorifying terrorism, ‘measures taken’ by these laws are also ‘connected’ to the purpose because they target only specific kind of speeches and are not ambiguous. lastly, these steps can be argued to be ‘necessary’ to prevent the creation of an 80 (2015) 6 scc 1. 81 id., para. 107. 82 (1981) 2 scc 600, para. 16. 83 (2016) 7 scc 221. 84 id.at para. 194. 85 (2016) 7 scc 221. 86 (2015) 5 scc 1, para 13. vaibhav chadha the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 73 environment conducive to terrorism in india and to avert speech that would cause distress to the victims of terrorist attacks and their families. also, these restrictions may not be considered excessive as they do not restrict political speeches that are essential in a democracy but only restrict speech that glorifies terrorism, makes an apology of terrorism, and humiliates victims of terrorist attacks. by specifically criminalising such speeches, the government shall be prevented from making any unnecessary arrests of citizens for making speeches critical of the government, its leaders, or policies. the courts of law shall strike down orders of such arrests because that was not the purpose for which such laws were enacted. it will ensure that the right to freedom of speech and expression in india is not only preserved but also prospers. 5. conclusion interest of the individuals engaged in the acts of expression must be seen not only from the speaker’s viewpoint but also after considering various factors such as the place, audience, scenario, expected reaction, purpose and the gathering where such freedom of speech was exercised by the citizen.87 freedom of speech and expression is an essential part of democracy and deserves protection, but no right can be considered absolute. an analysis of the laws of the uk and france shows us how clearly and distinctly laws can be defined to prohibit speech glorifying terrorism, without hampering right to freedom of speech. the uk has made a separate offence of glorification of terrorism, while france has made a distinction between ‘provocation to terrorism’ and ‘apology of terrorism’. there seems to be no likely reason as to why india should not prohibit speech glorifying terrorism. the jnu incident pointed out for the need of having specific laws that curb speeches, which glorify acts of terrorism. european countries that provide wider rights of freedom of speech and expression restrict speeches glorifying terrorism by having adequate laws in place. these laws do not curb political speeches or speeches that criticise government or political leaders but proscribe only those speeches which fall under the category of glorification of terrorism or apology of terrorism. the same can be implemented in india. the legislature can enact such laws and if some members of the civil society or human rights group feel that the laws enacted infringe the right to freedom of speech and expression, they would still have the opportunity to challenge such laws in the court of law. in the leroy case, the european court of human rights considered the effect of speech glorifying terrorism on public and held that it was capable of arousing public sentiments and thus, punishment imposed was held proportional in pursuance of the legitimate aim. decision of european court of human rights in cases such as leroy, would further assist courts in india in evaluating the scope of right to freedom of speech and expression granted under article 19(1)(a) of the constitution of india, 1950. 87 d.c. saxena (dr) v. hon’ble the chief justice of india, (1996) 5 scc 216, para. 31. freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 74 references 1. table of cases india d.c. saxena (dr) v. hon'ble the chief justice of india, (1996) 5 scc 216. devidas ramachandra tuljapurkar v. state of maharashtra, (2015) 6 scc 1. hardik bharatbhai patel v. state of gujarat, 2016 (1) rcr (criminal) 542. kanhaiya kumar v. state of nct of delhi, (2016) scc online del 1362. kedar nath singh v. state of bihar, 1962 air 1962 sc 955. laxmi khandsari v. state of up, (1981) 2 scc 600. ramlila maidan incident, in re (2012) 5 scc 1. sahara india real estate corpn. ltd. v. sebi 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https://www.thetimes.co.uk/article/a-third-of-muslim-students-back-killings-9fzqfzgmkz5 https://blogs.loc.gov/law/2015/03/falqs-freedom-of-speech-in-france/ https://blogs.loc.gov/law/2015/03/falqs-freedom-of-speech-in-france/ https://www.thetimes.co.uk/article/leaked-no-10-dossier-reveals-al-qaedas-british-recruits-9lpg68xw93r https://www.thetimes.co.uk/article/leaked-no-10-dossier-reveals-al-qaedas-british-recruits-9lpg68xw93r https://www.thetimes.co.uk/article/leaked-no-10-dossier-reveals-al-qaedas-british-recruits-9lpg68xw93r https://globalfreedomofexpression.columbia.edu www.satp.org www.thehindu.com www.financialexpress.com www.ndtv.com www.indiatoday.in www.bbc.co.uk www.theguardian.com/uk https://elpais.com http://www.europe1.fr www.indiatvnews.com http://www.wipo.int https://www.service-public.fr freedom of speech and expression versus the glorification of acts of terrorism the age of human rights journal, 17 (december 2021) pp. 54-78 issn: 2340-9592 doi: 10.17561/tahrj.v17.6416 78 press release 2005, security council meeting of world leaders calls for legal prohibition of terrorist incitement, enhanced steps to prevent armed conflict, sc/8496, 14 september, viewed 18 november 2020 <https://www.un.org/press/en/2005/ sc8496.doc.htm>. the united kingdom’s strategy for countering international terrorism 2009, pursue prevent protect prepare, p. 80, viewed 14 october 2020, <https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/228644/7547.pdf>. un secretary general 2008, the protection of human rights and fundamental freedoms while countering terrorism, un doc a/63/337, 28 august. un security council resolution, s/res/1624 (2005). received: 10th june 2021 accepted: 04th october 2021 https://www.un.org/press/en/2005/sc8496.doc.htm https://www.un.org/press/en/2005/sc8496.doc.htm https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228644/7547.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228644/7547.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228644/7547.pdf freedom of speech and expression versus the glorification of acts of terrorism: defining limits abstract 1. introduction 1.1. background 2. significance of the right to freedom of speech and expression 2.1. freedom of speech and expression in india 2.2. should incitement to offence or violence be the only criterion for restricting speech glorif 3. need for making glorification of terrorism a punishable offence in india 3.1. scope of right to freedom of expression under european convention of human rights (echr) 3.2. analysing the unsc resolution 1624 and legislations in the uk and france 3.2.1. unsc resolution 1624 3.2.2. legislations in the united kingdom 3.2.3. legislations in france 4. evaluating provisions of the uk and french legislations in the indian context 4.1. provisions recommended for india 4.2. will prohibiting speech glorifying terrorism interfere with the right to freedom of speech a 5. conclusion references 1. table of cases 2. table of legislations 3. secondary sources 4. other secondary sources pro homine principle: an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 207 pro homine principle: an axiological compass in interpretation norms in the field of human rights samanta kowalska1 abstract: the pro homine principle plays an important role in the objectification of the legislative process and the interpretation of regulations. the current paper presents the pro homine principle as a means of realisation and a “canon of interpretation” in the pursuit of more effective and more efficient protection of the rights of the individual. the discussed principle may also be used to fill in lacunas in international treaties, as well as to ensure axiological cohesion, which may lead to crystallisation, clarification of norms or their evolution into principles of conventional nature. implementation of the pro homine principle supports in detecting and counteracting arbitrariness and identifying protective measures that remain merely declarative in nature. keywords: pro homine principle, human rights, international agreement, interpretation and application of treaty norms, axiology of human rights summary: 1. introduction. 2. the essence of the pro homine principle. 3. internationalisation of protection and normalisation of the pro homine principle. 4. interpretation norms in the context of customary law and treaty law. 5. the pro homine principle in a globalized world. 6. role the principle pro homine in dialogue of legal sources. 7. prism of the pro homine principle. 8. conclusions 1. introduction in the light of international human rights law, the pro homine principle is a fundamental instrument for the protection of individual rights. the aim of the pro homine principle is to make human rights a reality to the fullest extent possible. in the term “human rights” despite differences in terminology, a common axiom can be isolated2. even as far back as ancient indian times, it was believed that the right of one person is the obligation of the other3. this has found its reflection in the modern concept of human rights, which is not unilateral, but balanced in its rights and obligations. pro 1 phd, lawyer. the president stanisław wojciechowski university in kalisz, poland (skowalska13@ interia.pl). 2 in the literature of the subject, one may find the statement that “the idea of international human rights, like other human ideas, is a remix”. in: martinez, j.s. 2013. human rights and history. harvard law review, volume 126, number 7, p. 237. human rights develop in a particular social, cultural and ideological environment. the current reflections emphasise the “meta depth” of regulations concerning the rights and liberties of an individual, which can serve both the domestic legislator and the international community by acting as a common ground which doesn’t cause corrosion of the principle of respect of national sovereignty. 3 madan, n. 2017. history & development of human rights in indian, iosr journal of humanities and social science, volume 22, issue 6, ver. 9, p. 1. cf. oestreich, j.e. 2017. development and human rights: rhetoric and reality in india, oxford: oxford university press. pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 208 homine principle can help a distillation of norms and prevent against blurring of the genesis of human rights. individual rights are derived from the inborn and inalienable of human dignity. recognition of human rights is the sine qua non condition of respect for dignity. in light of the above, the key role of the principle is to protect human dignity and the rights that emanate it. the discussed principle emerges as a means of protecting human rights that are enjoyed by every individual for the mere fact of being human. due to this fact, the pro homine principle can be regarded as a symbolic mirror that allows us to capture the symptoms of treating people in a manner that is contrary to the model resulting from dignity. 2. the essence of the pro homine principle according to the american declaration of the rights and duties of man4, one is not eligible to human rights for being a citizen of a specific country, but due to attributes resulting from human personhood. this issue was emphasized by seyla benhabib, who indicated that legal protection is granted by virtue of being a human being, a moral being5. the evocation of morality directs attention to axiology, which should permeate both substantive and procedural provisions. this corresponds to rodolfo e. piza escalante's argument that the pro homine principle follows from human nature itself 6. since human rights are inherent in human nature, the pro homine principle can help bring them out their „real life-value foundation”7. the principle is ontologically, legally and axiologically intertwined with human life. in the light of this principle, the human being is the subject, and the highest goal8. hence, the pro homine principle leads to the most favourable interpretation for the individual9. in this respect, the interpreting party plays a significant role. the interpretation process consists of activities aimed at determining the meaning of the words used in the legal text10. when establishing or reconstructing the meaning of expressions, one must observe the individual ‘colours’ and ‘shades’ of human life. this is often associated with the need to have not only specialist legal knowledge, but also sensitivity combined with subtle tact, e.g. when interpreting norms concerning the right to life, confessional views or the protection of privacy. 4 american declaration of the rights and duties of man adopted by the ninth international conference of american states, bogotá, colombia, 2 may 1948. 5 benhabib, s. 2009. cosmopolitanism and democracy: affinities and tensions, the hedgehog review. critical reflections on contemporary culture, volume 11, issue 3, p. 31. 6 opinion separate of judge r.e. piza escalante is quoted for: medellín urquiaga, x. 2013. principio pro persona, axotla: suprema corte de justicia de la nación, oficina en méxico del alto comisionado de las naciones unidas para los derechos humanos y comisión de derechos humanos del distrito federal, p. 17. 7 noonan, j. 2018. human rights as hinge principles, international critical thought, volume 8, issue 3, p. 12. 8 berbera, h.r. 2018. the pro personae principle and its application by mexican courts, queen mary human rights law review, volume 4, p. 6. 9 amaya villarreal, á.f. 2005. el principio pro homine: interpretación extensiva vs. el consentimiento del estado, international law. revista colombiana de derecho internacional, volume 3, número 5, p. 351. 10 tobin, j. 2010. seeking to persuade: a constructive to human rights treaty interpretation, harvard human rights journal, volume 23, p. 5. samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 209 in the light of the pro homine principle, if an extensive interpretation would lead to an arbitrary or restrictive limitation of the rights of an individual, it is advisable to refrain from the aforementioned explication. applying the principle for interpretation may therefore mean adopting a narrower interpretation in justified cases, if it would provide an individual with better protection. interpretation of standards should be correlated with the mechanisms ensuring their effective implementation. an interpretation with the use of this principle should lead to “the immediate and unconditional enforceability of human rights”11. for rodolfo e. piza escalante, this should be the rule, not the exception12. however, it is advisable to consider each case in the light of the circumstances of the case. the pro homine principle is not based on the use of models, but on the individualisation of measures. interpretation using the pro homine principle is intended to assist the process of examining standards taking into account the circumstances and the context of the treaty. it facilitates the identification of phenomena that could unravel the integrity of the legal system. in terms of practice, the analysed principle makes it possible to formulate conclusions concerning not only internal but also international provisions in terms of the purpose of the law (ratio iuris) and legal norms (ratio legis). adopting the above understanding opens the way to greater effectiveness of the protection of an individual (protective goals) and of the values approved by them (goals, effects)13. referring to the pro homine principle opens new possibilities in the protection of human rights that have not been included in treaties in a comprehensive manner or to a satisfactory extent. 3. internationalisation of protection and normalisation of the pro homine principle achieving universalism and its concretisation in the form of regional systems of human rights protection can certainly be considered a milestone in human history14. the proclaim of the charter of the united nations15 opened a new chapter in international relations and changed the hitherto understanding of international law. internationalisation of human rights brought about an introduction of abstract and general norms whose purpose was the protection of the individual in the personal and the social aspect. in the preceding period of time, determination of the legal status of an individual was believed to fall within the authority of a state. for the first time, the un charter laid the foundation for the crystallisation of standards aimed at protecting individuals in the context of international law. among the obligations of the state, respect for human rights and ensuring conditions in which they could be respected and stably secured were indicated. private persons were given the ability to submit individual applications to an international 11 opinion separate of judge r.e. piza escalante, supra note 6, 17. 12 supra note 11. 13 kowalska, s. 2019. zasada pro homine – konceptualizacja i zastosowanie w kontekście międzynarodowej ochrony praw człowieka / pro homine principle – conceptualization and application in the context of international protection of human rights. poznań: uniwersytet im. adama mickiewicza w poznaniu, zakład graficzny uam, p. 38. 14 ishay, m.r. 2004. what are human rights? six historical controversies, journal of human rights, volume 3, number 3, p. 359. 15 charter of the united nations was signed on 26 june 1945 in san francisco. pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 210 (organ) court. in the context of protection of human rights by the treaty, the pro homine principle enables the individualisation of norms resulting from the fact of an individual's legal and international subjectivity. the international court of justice judgment in the barcelona traction case emphasised that respect for human rights by signatory states has the nature of erga omnes obligations, which are also of vital importance for the entire international community16. since the adoption of the universal declaration of human rights17 “are no longer the rights of man, but rather human rights”18. the declaration is likened to “shining city on the hill” , upon which nations and states look19. however, it should not take the form of rivalry, but cooperation for the purpose of more effective and efficient protection that recognises historical, geopolitical and cultural factors. this document constitutes an inexhaustible source of knowledge about man and about regulations adopted with a view to protection of the human being. it serves as an impulse which stimulates transformation of non-legal values into principles of normative rank. the pro homine principle can be assigned the role of an axiological guideline supporting the identification, articulation and reconstruction of values necessary for the effective protection of an individual. since the adoption of the declaration, the status of the pro homine principle began to change. no longer a soft law provision, it has become a norm of general international law. the normativisation of the pro homine principle on the international forum took place with the adoption of the international covenant on civil and political rights20 and the international covenant on economic, social and cultural rights21. since then, the pro homine principle has been a normative guideline for making treaty norms in the field of human rights more effective. the pro homine principle apparently has the characteristics of a meta-principle through the articulation of rights and freedoms that are normatively included in international treaties. another meta-principle concerns the content of the provisions. the pro homine principle aims to display those values which constitute the axiological foundation of the international legal order. this takes on special significance in the light of the dynamic development in the field of science and technology, e.g. related to progress in the field of cyberspace, climate protection, counteracting pathological phenomena (terrorism, 16 international court of justice, reports of judgments, advisory opinions and orders, case concerning the barcelona traction, light and power company, limited (belgium v. spain), judgment of 5 february 1970, § 33, 34. 17 universal declaration of human rights was proclaimed by the united nations general assembly in paris on 10 december 1948. 18 fletcher, w.a. 2010. international human rights and the role of the united states, northwestern university law review, volume 104, number 1, p. 297. 19 supra note 18. 20 international covenant on civil and political rights adopted and opened for signature, ratification and accession by general assembly resolution 2200a (xxi) of 16 december 1966, entry into force 23 march 1976, in accordance with article 49. 21 international covenant on economic, social and cultural rights adopted and opened for signature, ratification and accession by general assembly resolution 2200a (xxi) of 16 december 1966, entry into force 3 january 1976, in accordance with article 27. samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 211 hybrid warfare, etc.). therefore, the pro homine principle can play an important role in rationally setting the boundaries of scientific exploration in order to protect against excessive bioengineering interference in the human genetic profile. the axiology of human rights point to the significance of the protection of psycho-physical and genetic integrity of a human. in the process of interpretation of treaty provisions, one should appeal to the ‘arch-norm’ that does not come from any legislator or judge. hence the conclusion that the pro homine principle emphasises values of special importance that result from human identity. 4. interpretation norms in the context of customary law and treaty law the earliest attempts to define customary law in relation with fundamental human rights can be found in the advisory opinion of the international court of justice of 195122. the literature of the subject demonstrates that treaties tend to achieve a universal status decades after their ratification by a given signatory state23. in relation to treaties in the sphere of protection of human rights, it ought to be noted that by means of evocation of innate dignity, they are in themselves characterised by universality, since they appeal to common, extra-legal values. integration of the pro homine principle with custom may help reach a decision in a shorter time frame, since creation of norms of customary law does not entail the necessity of lengthy, formalized negotiations. principio pro homine may be used as subsidiary to other principles, reinforcing their message and practice and, consequently, positively influence observance of obligations of international law regarding the protection of human rights. the general interpretative rule of international conventions is found within the vienna convention on the law of treaties24. article 31(3)(c) prescribes that, in the process of interpretation of a treaty, “there shall be taken into account […] any relevant rules of international law applicable in the relations between the parties”. regarding treaties from the field of human rights protection, analysis of the context ought to consider the processes that have occurred in the past and, with regards to the present, direct attention towards the genesis, the goals and the outcomes that the regulations being introduced will have on the status of the individual. in circumstances marked by insufficient procedural principles in treaties or in customary law, the pro homine principle may also be adopted to complement or ‘rehabilitate’ the norms of a treaty. filling in these gaps may help reduce the number of cases of non-liquet, where the court is unable to make a determination due to a lack of an applicable legal norm. application of the pro homine principle in court cases deepens and tightens the link between human rights and other sources of international law, substantive and procedural alike. as a result, it may prove to be an impulse for reiteration 22 international court of justice, reservations to the convention on the prevention and punishment of the crime of genocide. advisory opinion of 28 may 1951. 23 helfer, l.r., wuerth, i.b. 2016. customary international law: an instrument choice perspective, michigan journal of international law, volume 37, p. 569. 24 vienna convention on the law of treaties was adopted on 22 may 1969 and opened for signature on 23 may 1969. pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 212 of customary law within treaty regulations with a goal of reinforcement and actualisation of the protection of the rights of an individual. principio pro homine may also positively impact normativisation of the provisions of soft law documents, so as to improve the legal and actual status of the individual. the pro homine principle, in conjunction with a custom that the subjects of international law believe to be in agreement with the law (opinio iuris sive necessitatis25) may enable a more prompt reaction in the face of a violation of human rights and, as a result, enhance the mechanisms of protection and assist in instating laws that are suited to the unfolding circumstances26. as emily kadens and ernest a. young demonstrate, lacunas are frequently found in the very areas that require legal regulation the most27. this may take the form of a legal norm that is not properly defined, a contradiction or a lack of a procedure that would outline the way a decision should be made or the action that should be taken. the lack of a legal norm that would find application in factually occurring circumstances is beyond a doubt a detrimental situation for the individual. legal gaps may also emerge as a result of transformations in the international community, technological progress, as a consequence of engaging in new areas of research that have not been previously explored by scientists, e.g. biological engineering, space law. in this context, the regulatory role of the pro homine principle in profiling the activities of public bodies and institutions, especially those that make decisions affecting the status of an individual, becomes apparent. in the above circumstances, the pro homine principle may act as a “shield” against arbitrary interference with the status and rights of an individual. 5. the pro homine principle in a globalized world the role of principio pro homine is increasing in significance due to progressing moral and cultural relativism, since adoption of relative, temporary axioms results in illusory social and legal security. reliance on the pro homine principle may help strengthen interpersonal bonds and neutralise the negative effects of globalisation in the horizontal and vertical sphere. in many places around the globe societies are torn apart by intentionally maintained conflicts, fragmented by divisions, consumed by envy, homophobia and intolerance. the connections and interdependencies between financialeconomic systems make it so that the crisis of one centre impacts the remaining ones. we are witnessing an intensive acceleration of the phenomenon of globalisation in economy which modifies and transforms previous models of behaviour, imposing its own patterns, introjecting judgements and interpretations. the phenomenon of globalisation, despite its benefits (e.g. facilitating communication, transmitting and receiving information) also poses many threats, e.g. for national cultures and traditional values. this phenomenon 25 wolfke, k. 1964. custom in present international law. wrocław: prace wrocławskiego towarzystwa naukowego, p. 52. 26 see: helfer, l.r., wuerth, i.b. 2016. customary international law: an instrument choice perspective, michigan journal of international law, volume 37, pp. 575-576. 27 kadens, e., young, e.a. 2013. how customary is customary international law?, william & mary law review, volume 54, issue 3, p. 886. samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 213 unifies patterns and norms of conduct. this process also manifests itself in striving to establish a cosmopolitan and global law that may blur the national cultural heritage and parliamentary traditions of individual countries. in the above circumstances, international institutionalisation and the language of legal texts are vernacularising28. at the time when the first treaties on the protection of the rights of the individual were drawn up, the pro homine principle made it possible to present the legal and international subjectivity of the individual. currently, in the face of the increase in processes aimed at taking away or limiting the subjectivity of an individual and state sovereignty, there is an urgent need to be guided to a greater extent by the good of the individual, both as a single entity and as a group (protection of the national legal tradition, culture and statehood). the application of the pro homine principle may help to neutralise the negative effects of the phenomenon of globalisation, which causes instrumentalisation of law and the domination of objective and economic factors. 6. role the principle pro homine in dialogue of legal sources international human rights treaties affect domestic administrative, legislative and judicial activities. the analyzed principle may support the transposition of values resulting from international human rights law into the legislation of individual countries, but not for the purpose of unification, but for selecting solutions that will create a common ground for agreement. for example, the constitution of japan29 describes human rights as eternal and inviolate (article 11). the japanese state places great importance on honouring international legal obligations “balancing them with its cultural, historical and constitutional backgrounds”30. it is believed that treaties in the area of international protection of human rights support the process of reinforcing and broadening of the individual protection that stems from the domestic law and japanese constitutional norms31. the pro homine principle, by means of “the dialogue of sources”, ‘navigates’ towards the norm that, in the light of particular circumstances, ensures the most effective protection. this leads to the conclusion that the clarifying role of the pro homine principle plays an important role in lawmaking and implementation of regulations pro foro interno when it comes to prevention of internal contradictions. furthermore, pro foro externo, the function of the discussed principle can be employed in the context of ratification of international treaties, which entail justified expectations on the part of the signatory states. analysed the basic law has persisted through decades, becoming the foundation for development of the post-war political system of japan. the preamble speaks of a “universal principle of mankind”, which suggests a connection with the pro homine principle. hence, there is a conclusion that in the process of legislation, analysing norms through the lens of the pro homine principle may promote rational lawmaking rooted in the legal and cultural tradition of a given country, all the while respecting international legal 28 see: benhabib, s. 2009. claiming rights across borders: international human rights and democratic sovereignty, american political science review, volume 103, number 4, p. 692. 29 constitution of japan promulgated on november 3, 1946. came into effect on may 3, 1947. 30 de oliveira mazzuoli, v., ribeiro, d. 2015. the japanese legal system and the pro homine principle in human rights treaties, anuario mexicano de derecho internacional, volume 15, issue 1, p. 268. 31 supra note 30, p. 269. pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 214 obligations. regard for constitutional values of signatory states is especially important in the evaluation of the necessity and the proportionality of interference into the sphere of the rights and liberties of individuals. cultural diversity, pluralism and democratic values call for a “spirit of compromise. principio pro homine can therefore be referred to as the principle of normative conflict resolution. the interpretation methodology based on the pro homine principle is used by the inter-american court of human rights. there is a clear influence of the pro homine principle in advisory opinion oc-5/8532. taking this principle as a guideline, the interpretation of the tribunal went beyond the treaty provisions that make up the inter-american system of human rights protection. this action was dictated by the reconstruction of the standard ensuring a balanced and most beneficial protection for the individual. in latin american countries, the pro homine principle makes it possible to incorporate norms resulting from the american convention on human rights33, which may contribute to the integration of the domestic legal order with the standards of human rights protection. in a concurring opinion, judge antônio augusto cançado trindade pointed to the unity and universality of human rights34. the pro homine principle can support the correlation of content, interpretation and practice in the spirit of the essence of human rights, which is a common value, but also an obligation. however, dilemmas may arise in the context of the application of the pro homine principle. article 133 of the mexican constitution35 grants supremacy to the constitution. a dilemma arose for domestic judges as regards the application and interpretation of the norms resulting from the constitution in relation to the norms of the treaties. the suprema corte de justicia de la nación (scjn) took the position that the pro homine principle abolished the hierarchical organisation of human rights provisions36. in 2011, scjn in the context of the implementation of the rosendo radilla pacheco judgment37, indicated that all organs of state authority, including the judiciary, are obliged to take into account the pro homine principle in considering constitutional norms and treaty norms of international law in this matter. in 2012 scjn developed its previous position stating that in the case of the presence of a constitutional norm and a treaty norm, it is justified to apply the provision that will provide better protection for an individual38. the constitutional chamber of the 32 § 52, inter-american court of human rights, advisory opinion oc-5/85 of november 13, 1985, compulsory membership in an association perscribed by law for the practice of journalism (arts. 13 and 29 american convention of human rights). requested by the goverment of costa rica. 33 american convention on human rights signed in san josé, costa rica on 22 november 1969. 34 § 5, concurring opinion of judge a.a. cançado trindade. in connection with the inter-american court of human rights, advisory opinion oc-18/03 of september 17, 2003. requested by the united mexican states, juridical condition and rights of undocumented migrants. 35 constitution of mexico was approved on february 5, 1917. 36 berbera, h.r. 2018. the pro personae principle and its application by mexican courts, queen mary human rights law review”, volume 4, p. 24. 37 inter-american court of human rights, case of rosendo radilla-pacheco v. mexico, judgment of november 23, 2009. 38 supra note 37, p. 16. on the subject of more favourable interpretation, see: negishi, y. 2017. the pro homine principle’s role in regulating the relationship between conventionality control and constitutionality control, european journal of international law, volume 28, number 2, p. 472. samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 215 supreme court of costa rica took a similar position, pointing out that priority should be given to instruments of international protection of human rights if they provide better protection than the provisions of domestic law39. however, it should be pointed out that axiological universals do not have to obscure the axiology of the constitution, because the primacy of human dignity, from which we can derive the analyzed principle, is the “core” of international human rights law, as well as the basis of most constitutional legal orders in the world40. 7. prism of the pro homine principle at the international stage, where there is no central legislator, the pro homine principle remains a repository of guidelines that are invaluable in the process of lawmaking, the shaping of practices of enactment of international law. the pro homine principle helps maintain objectivity in the legislative process. there exist values which comprise the “collective conscience”. the preamble of the convention for the pacific settlement of international disputes41 demonstrates that the security of states and the welfare of nations is dependent on whether the principles of justice and the principles of law that establish them are ‘sanctified’ through treaties. article 1(2) of the protocol additional (i) to the geneva conventions of 1949 contains an evocation to “the dictates of public conscience”, and the second protocol of 1977 stresses that “in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience” (preamble)42. pro homine emerges as a means of actualisation of human rights and preservation of a ‘human’ perspective in law. in the light of the above, one may conclude that the pro homine principle will not apply to the interpretation or justification of acts that violate the essence of human rights, lead to crimes against humanity and other conflicts that threaten human existence. therefore, conducting a dynamic interpretation of international treaties should not lead to a breach of the foundations of international law. it is important to continue to promote an attitude of permanent axiological refinement. this is exemplified by actions that were once perceived as inhumane or degrading treatment, but today are considered torture. in the 25th paragraph of the application of samuel einhorn against france, 2001 (case no. 71555/01), examined by the european court of human rights, it was stressed that deportation of a person to a country where they may be subjected to torture, inhumane 39 negishi, y. 2017. the pro homine principle’s role in regulating the relationship between conventionality control and constitutionality control, european journal of international law, volume 28, number 2, p. 474. 40 kowalska, s. 2019. zasada pro homine – konceptualizacja i zastosowanie w kontekście międzynarodowej ochrony praw człowieka / pro homine principle – conceptualization and application in the context of international protection of human rights. poznań: uniwersytet im. adama mickiewicza w poznaniu, zakład graficzny uam, p. 45. 41 convention for the pacific settlement of international disputes signed in hague on 18 october 1907. 42 protocols additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of international armed conflicts (protocol i), and relating to the protection of victims of noninternational armed conflicts (protocol ii), adopted on 8 june 1977. pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 216 or degrading treatment or punishment (article 3 of echr43) is contrary to “common heritage of political traditions, ideals, freedom and the rule of law”44 mentioned in the preamble of the european convention on human rights. interpretation of treaty norms, evaluated in the light of contemporary conditions, means that the standard of protection of human rights should continue to increase in refinement. the pro homine principle may constitute a ”litmus test” aiding the detection of symptoms of arbitrariness in law-making and interpretation. 8. conclusions the pro homine principle is at the centre of international human rights law. the principle in question is derived from human dignity, which affects the way in which its functions are articulated. in the sense of an interpretative measure, the pro homine principle navigates towards a standard that provides better protection for the individual. whereas in the sense of a principle that supports conflict resolution, it helps to find a point of contact and to select the standards which will procedurally safeguard the status of the individual in the most effective way. this means that when analysing legal norms of different hierarchical positions, the objective of the pro homine principle should be taken as a guiding light. in these circumstances, the pro homine principle may alleviate the regime resulting from the hierarchy of standards in order to reach a solution for which the individual's well-being is a priority. the article argues that the pro homine principle gives permanence to international legal obligations in the scope of protection of human rights. values that are reflected in the pro homine principle make up the essence of human rights and their legal and axiological legitimacy. the axiology of the pro homine principle ought to find application in the “dialogue of sources” with the aim of selection of an optimal norm or to resolve a conflict by means of its ability to act as a touchstone of the welfare of the individual. employment of the pro homine principle in the process of interpretation may help prevent polysemous terms which could otherwise lead to the blurring of the subject and object scope of a human being. this aspect gains particular significance when the process of legislation or interpretation of the law encounters a problem of formal, procedural or inter-institutional nature or involves indeterminate phrases. the purpose of the pro homine principle is to invoke or elevate values in situations where the status of the individual is under threat. the principle’s role of motivating towards respect for human rights may be conducive to shared initiatives uniting countries and international organisation. application of the pro homine principle at the level of substantive law and procedural regulations may help remedy situations where the protection of the law is illusory and aid in neutralising merely declarative prescriptions in favour of genuine protection of the rights of the individual. 43 convention for the protection of human rights and fundamental freedoms (european convention on human rights) was opened for signature in rome on 4 november 1950, entered into force on 8 september 1953. 44 european court of human rights, application samuel einhorn v. france, 2001, no. 71555/01, § 25. see also application: ilie ilaşcu, alexandru leşco, andrei ivanţoc, tudor petrov-popa v. moldova and russia, 2004, no. 48787/99, § 317. samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 217 references amaya villarreal, á.f. (2005). el principio pro homine: interpretación extensiva vs. el consentimiento del estado. international law. revista colombiana de derecho internacional, 3 (5), 351. american declaration of the rights and duties of man adopted by the ninth international conference of american states, bogotá, colombia, 2 may 1948. american convention on human rights signed in san josé, costa rica on 22 november 1969. benhabib, s. (2009). claiming rights across borders: international human rights and democratic sovereignty. american political science review, 103 (4), 692. https:// doi.org/10.1017/s0003055409990244 benhabib, s. (2009). cosmopolitanism and democracy: affinities and tensions. the hedgehog review. critical reflections on contemporary culture, 11 (3), 31. berbera, h.r. (2017). pro personae principle and its application by mexican courts. queen mary human rights review, 6, 24. charter of the united nations (1945). 26 of june, san francisco. concurring opinion of judge a.a. cançado trindade. in the connection with the inter-american court of human rights, advisory opinion oc-18/03 of september 17, 2003. requested by the united mexican states, juridical condition and rights of undocumented migrants. constitution of mexico (1917). 5 of february. constitution of japan (1946). 3 of november, came into effect on may 3, 1947. convention for the protection of human rights and fundamental freedoms (european convention on human rights) (1950). 4 of november, entered into force on 8 september 1953, rome. convention for the pacific settlement of international disputes (1907), 18 of october. de oliveira mazzuoli, v., ribeiro, d. (2015). the japanese legal system and the pro homine principle in human rights treaties, anuario mexicano de derecho internacional, 15 (1), 268-269. https://doi.org/10.1016/j.amdi.2014.09.004 european court of human rights (2001). application samuel einhorn v. france, no. 71555/01. european court of human rights (2004). application ilie ilaşcu, alexandru leşco, andrei ivanţoc, tudor petrov-popa v. moldova and russia, no. 48787/99. fletcher, w.a. (2010). international human rights and the role of the united states, northwestern university law review, 104 (1), 297. https://doi.org/10.1017/s0003055409990244 https://doi.org/10.1017/s0003055409990244 https://doi.org/10.1016/j.amdi.2014.09.004 pro homine principle – an axiological compass in interpretation norms in the field of human rights the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 218 helfer, l.r., wuerth, i.b. (2016). customary international law: an instrument choice perspective. michigan journal of international law, 37, 569, 575-576. inter-american court of human rights. case of rosendo radilla-pacheco v. mexico, judgment of november 23, 2009. international court of justice. reservations to the convention on the prevention and punishment of the crime of genocide. advisory opinion of 28 may 1951. international court of justice. reports of judgments, advisory opinions and orders, case concerning the barcelona traction, light and power company, limited (belgium v. spain), judgment of 5 february 1970. inter-american court of human rights. advisory opinion oc-5/85 of november 13, 1985, compulsory membership in an association perscribed by law for the practice of journalism (arts. 13 and 29 american convention of human rights). requested by the goverment of costa rica. international covenant on civil and political rights adopted and opened for signature, ratification and accession by general assembly resolution 2200a (xxi) of 16 december 1966, entry into force 23 march 1976, in accordance with article 49. international covenant on economic, social and cultural rights adopted and opened for signature, ratification and accession by general assembly resolution 2200a (xxi) of 16 december 1966, entry into force 3 january 1976, in accordance with article 27. ishay, m.r. (2004). what are human rights? six historical controversies. journal of human rights, 3 (3), 359. https://doi.org/10.1080/1475483042000224897 kadens, e., young, e.a. (2013). how customary is customary international law?. william & mary law review, 54 (3), 886. kowalska, s. (2019). zasada pro homine – konceptualizacja i zastosowanie w kontekście międzynarodowej ochrony praw człowieka / pro homine principle – conceptualization and application in the context of international protection of human rights. poznań: uniwersytet im. adama mickiewicza w poznaniu, zakład graficzny uam, 38, 45. madan, n. (2017). history & development of human rights in indian. iosr journal of humanities and social science, 22 (6), ver. 9, 1. https://doi.org/10.9790/08372206090106 martinez, j.s. (2013). human rights and history. harvard law review, 126 (7), 237. medellín urquiaga, x. (2013). principio pro persona. axotla: suprema corte de justicia de la nación, oficina en méxico del alto comisionado de las naciones unidas para los derechos humanos y comisión de derechos humanos del distrito federal, p. 17. https://doi.org/10.1080/1475483042000224897 https://doi.org/10.9790/0837-2206090106 https://doi.org/10.9790/0837-2206090106 samanta kowalska the age of human rights journal, 16 (june 2021) pp. 207-219 issn: 2340-9592 doi: 10.17561/tahrj.v16.6175 219 negishi, y. (2017). the pro homine principle’s role in regulating the relationship between conventionality control and constitutionality control. european journal of international law, 28 (2), 472, 474. https://doi.org/10.1093/ejil/chx030 noonan, j. (2018). human rights as hinge principles. international critical thought, 8 (3), 12. https://doi.org/10.1080/21598282.2018.1506261 oestreich, j.e. (2017). development and human rights: rhetoric and reality in india oxford: oxford university press. https://doi.org/10.1093/ acprof:oso/9780190637347.001.0001 opinion separate of judge r.e. piza escalante is quoted for: medellín urquiaga, x. 2013. principio pro persona, axotla: suprema corte de justicia de la nación, oficina en méxico del alto comisionado de las naciones unidas para los derechos humanos y comisión de derechos humanos del distrito federal, p. 17. protocols additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of international armed conflicts (protocol i), and relating to the protection of victims of non-international armed conflicts (protocol ii), adopted on 8 june 1977. tobin, j. (2010). seeking to persuade: a constructive to human rights treaty interpretation. harvard human rights journal, 23, 5. universal declaration of human rights (1948), 10 of december, paris. vienna convention on the law of treaties was adopted on 22 may 1969 and opened for signature on 23 may 1969. wolfke, k. (1964). custom in present international law. wrocław: prace wrocławskiego towarzystwa naukowego, 52. received: august 28th 2020 accepted: december 12th 2020 https://doi.org/10.1093/ejil/chx030 https://doi.org/10.1080/21598282.2018.1506261 https://doi.org/10.1093/acprof:oso/9780190637347.001.0001 https://doi.org/10.1093/acprof:oso/9780190637347.001.0001 pro homine principle an axiological compass in interpretation norms in the field of human righ abstract 1. introduction 2. the essence of the pro homine principle 3. internationalisation of protection and normalisation of the pro homine principle 4. interpretation norms in the context of customary law and treaty law 5. the pro homine principle in a globalized world 6. role the principle pro homine in dialogue of legal sources 7. prism of the pro homine principle 8. conclusions references the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 224 systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america williams c. iheme* “our lives begin to end the day we become silent about things that matter.” —martin luther king jr abstract: the trump administration and its mantra to ‘make america great again’ has been calibrated with racism and severe oppression against black people in america who still bear the deep marks of slavery. after the official abolition of slavery in the second half of the nineteenth century, the initial inability of black people to own land, coupled with the various jim crow laws rendered the acquired freedom nearly insignificant in the face of poverty and hopelessness. although the age-long struggles for civil rights and equal treatments have caused the acquisition of more black-letter rights, the systemic racism that still perverts the american justice system has largely disabled these rights: the result is that black people continue to exist at the periphery of american economy and politics. using a functional approach and other types of approach to legal and sociological reasoning, this article examines the supportive roles of corporate america, mainstream media, and white supremacists in winnowing the systemic oppression that manifests largely through police brutality. the article argues that some of the sustainable solutions against these injustices must be tackled from the roots and not through window-dressing legislation, which often harbor the narrow interests of corporate america. keywords: black people, racism, oppression, violence, police brutality, prison, bail, mass incarceration, protests. summary: 1. introduction: slave trade as the entry point of systemic racism. 1.1. the central claims. 1.2. the primary aim of the research. 1.3. the research questions, methodology, and the preliminary treatment of issues. 2. the metaphors underlining black bodies. 2.1. the metaphor of oppression: police brutality of black people and the silent endorsement by white supremacists in america. 2.2. support from fellow police officers and other police-connected departments. 2.3. support from the mainstream media. 2.4. support from white supremacists. 2.5. a few illustrative cases of police brutality against black people in america between 1991 – 2020. 2.5.1. rodney king (1991). 2.5.2. amadou diallo (1999). 2.5.3. sean bell (2006). 2.5.4. oscar grant (2009). 2.5.5. eric garner (2014). 2.5.6. michael brown (2014). 2.5.7. antwon rose (2018). 2.5.8. george floyd (2020). 3. the metaphor of hate: private prisons, money bail, and profiteering mass incarceration of black bodies. 3.1. reexamining the thirteenth amendment from a functional approach – the slave plantations reincarnated as the american prisons. 3.2. do american police officials and judges benefit from the mass incarceration of black people in america? 4. the metaphor of violence. 4.1. america’s * llb, llm, sjd., associate professor of law, o.p jindal global university, india (wciheme@jgu.edu.in; williamsiheme@gmail.com). i am grateful to mr. benjamin iheme, sir oliver iheme, mr. gregory iheme, ms. jacinta nwachukwu, and lady loveline iheme: they provided me with useful materials and personal experiences, which benefitted this research. i am also grateful to the three anonymous reviewers for their constructive and valuable feedback. i however take sole responsibility for any errors in the paper. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 225 strong economy was partially built upon violence and loots. 4.2. the lack of majoritarian criticisms of america’s violence and loots. 5. conclusion: the need for more protests? 1. introduction: slave trade as the entry point of systemic racism the alleged discovery of america by christopher columbus and friends in 1492,1 the use of refined sugar in processing food,2 and the use of wool in manufacturing cloths,3 signaled a bad omen for the african people. the vast expanse of land waiting to be cultivated with sugarcane and cotton in america motivated the search for very cheap labor.4 with the aid of navigation compasses, the scramble for resources to finance early european wars and lifestyles led europeans to arrive the shores of africa in the 15th century.5 africans were torn off from the bosoms of their families and looted off to america to work in the slave owners’ plantations under highly gruesome conditions. they worked without pay nor sufficient rest until many of them died of exhaustion.6 the violent loot of human resources to build american wealth went on for 400 years, and every counter resistance by africans was crushed and subdued with arms and ammunitions.7 although the western (mainstream narrative) designated the violent loots as ‘trade’ just to whittle the abhorrence as well as give the untrue impression that the reasonable consent of african people was obtained, and the various items like liquor, mirror, comb, etc., were the contractual consideration that validated the sale of black bodies, it is difficult to believe that african family members who loved themselves, would without any threat and violence, sell off their children to foreigners in exchange for cheap liquor.8 for 400 years, i.e., about 13 16 generations, black people were brutalized in the slave owners’ farms, were raped, murdered, and generally treated as chattel. they lived in fear for 400 years and endured all manner of oppressive violence, lived under 1 samuel morison, the great explorers: the european discovery of america (oxford university press, 1986), pp. 351 – 365. 2 khalil muhammad, ‘the sugar that saturates the american diet has a barbaric history as the ‘white gold’ that fueled slavery’ new york times (14 august 2019) <https://www.nytimes.com/ interactive/2019/08/14/magazine/sugar-slave-trade-slavery.html> accessed 6 june 2020. 3 joseph inikori, ‘slavery and the revolution in cotton textile production in england’ (1989) 13(4) social science history, 343–379, 344. 4 ibid 360. 5 free the slaves <https://www.freetheslaves.net/about-slavery/slavery-in-history/> accessed 1 june 2020. 6 us history: pre columbian to the new millennium, slave life and slave code <https:// www.ushistory.org/us/27b.asp> accessed 6 june 2020. 7 victor kappeler, ‘a brief history of slavery and the origins of american policing’ eastern kentucky university (7 january 2014) <https://plsonline.eku.edu/insidelook/brief-history-slavery-andorigins-american-policing> accessed 6 june 2020. 8 stanley alpern, ‘what africans got for their slaves: a master list of european trade goods’ (1995) 22, history in africa, 5-43, 6. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 226 extremely poor conditions, were not allowed to be educated, and generally disgusted the slave owners.9 britain during this era, was also at the forefront of slave trade, with its royal african company dominating in the trade due to britain’s enormous naval and maritime power.10 however, after the american revolution, and the war of 1812, britain’s relationship with the united states of america (hereafter, “america”) worsened and the former started to invest more efforts toward curtailing america’s rising power and influence, which was reasonably attributable to the use of slave labor in cultivating its vast land resources.11 in addition, the industrial revolution in the eighteenth century which witnessed the productions of goods and services with machines significantly lowered the demand for slave labor: there was no much economic incentive to continue to charter slaves in large numbers and maintain them when machines could do most of the tasks better and more efficiently. in the author’s opinion, these were strong external or remote factors that led to the abolition of the slave trade. in america, the principal internal factor that led to the abolition of slave trade was rooted more in the divergent economic interests between the north and south;12 the trade favored the southern merchants residing closer to the atlantic ocean where slave ships docked. the southerners also had richer land resources and cash crop plantations that required cheap labor;13 the abolition squabbles, in the author’s opinion, were therefore not truly about the genuine feelings of remorse to free the enslaved people and treat them as human beings with equal rights and dignity: it was about economic interests.14 after slavery was abolished in america in 1863, the culture of oppression against the black people that took 400 years to crystallize could not have vanished overnight. functionally, the experiences of black people in the post-abolition era were largely similar to the pre-era, since the same people that oppressed them for four centuries were still in power and exclusively occupied influential economic and political positions across the country.15 the denial of the right to own farmlands,16 coupled with the denial of education17 in the 400 years of slavery, made the newly acquired freedom insignificant since they 9 cf us history (n 6). 10 david olusoga, ‘the history of british slave ownership has been buried: now its scale can be revealed’ the guardian (london, 12 july 2015) <https://www.theguardian.com/world/2015/jul/12/britishhistory-slavery-buried-scale-revealed> accessed 6 june 2020. 11 frederick douglass, ‘british influence on the abolition movement in america’ an address delivered in paisley (scotland, 17 april 1846) <https://glc.yale.edu/british-influence-abolition-movementamerica> accessed 6 june 2020. 12 jennifer weber & warren hassler, ‘the american civil war’ encyclopedia britannica <https://www.britannica.com/event/american-civil-war/the-war-in-1862> accessed 2 june 2020. 13 ibid. 14 ibid. 15 cf us history (n 6). 16 van newkirk, ‘the great land robbery’ the atlantic (29 september 2019) <https://www.theatlantic. com/magazine/archive/2019/09/this-land-was-our-land/594742/> accessed 4 june 2020. 17 cf us history (n 6). williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 227 could not cultivate food, and did not have enough money or meaningful skills to sell, in order to purchase food and rent from those who had the exclusive right to own land and other factors of production. this functionally returned the formerly enslaved people to positions of involuntary servitude, to continue to serve their former slave masters in order to fend for themselves. as martin luther king jnr put it, ‘[b]lack people were required to pull themselves by their own bootstraps.’18 between the thirteenth amendment in 1865 (abolition of slavery), fourteenth amendment in 1868 (grant of citizenship to the former slaves and ‘equal protection of the law’), fifteenth amendment in 1870 (the right to vote accorded to the black people) on the one hand, and the 1964 civil rights act which crystallized nearly two decades of agitations for true equality and protection of the law, on the other hand, the black people endured a further 100 years of racial segregation, oppression, poverty and inequality in the country they built with their sweat and blood, even though their rights to be protected from these kinds of oppression were already inscribed in the black-letter law.19 these types of oppression, chiseled more deeply into the justice system continue to manifest loudly even till today, mainly through the law enforcement agents. based on observations, the paper has chosen a number of metaphors to map and discuss the painful black experience in america: these metaphors have arguably become synonymous with being black in america. 1.1. the central claims the paper makes a number of claims. first, it claims that the deeply encrusted culture of hate and oppression against the black people in america is underscored in police brutality.20 the american police are the avenue through which the negative machinations and wishes against black people by the white supremacists find expression and enforcement. secondly, it claims that the denial of facts and defense of killing cops whenever a black person is murdered are chiseled typically in the rebuttal that “[i]t is just the act of a few bad cops who do not represent the police force.”21 the paper argues that this defense is rooted in insincerity and bad faith, and is the byproduct of ‘white supremacy’22 in america. in this paper, the author uses the terms: ‘white supremacists’, ‘white americans’, and ‘white people’ interchangeably. evidently, the factual accusations in this paper do not imagine white people as a race, whether those living in america or elsewhere who support the equality of all races. 18 martin luther king jnr, ‘the other america’ gross pointe historical america (14 march 1968) <https://www.gphistorical.org/mlk/mlkspeech/> accessed 3 june 2020. 19 the library of congress, ‘the civil rights act of 1964: a long struggle for freedom’ the segregation era (1900–1939) <https://www.loc.gov/exhibits/civil-rights-act/segregation-era.html> accessed 5 june 2020. 20 npr, ‘a decade of watching black people die’ code switch (31 may 2020) <https://www.npr. org/2020/05/29/865261916/a-decade-of-watching-black-people-die> accessed 6 june 2020. 21 seam illing, ‘why the police problem isn’t about a few bad apples’ vox (6 june 2020) <https://www.vox. com/identities/2020/6/2/21276799/george-floyd-protest-criminal-justice-paul-butler> accessed june 7 2020. 22 ava kofman, et al, ‘white supremacy gateway to the american mind’ the atlantic (7 april 2020) <https://www.theatlantic.com/technology/archive/2020/04/white-supremacys-gateway-to-the-americanmind/609595/> accessed 7 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 228 third, it further claims that the recent (2020) incidents of police brutality against black people which sparked outrage on the internet from around the globe pail into insignificance in comparison to what they had suffered in the past without much global attention due to the absence of the internet. in other words, the culture of hate against black people in america was not recently developed, instead the heightened use of smart phones in the 21st century has helped to create more awareness, consciousness, and exposure of the cruelty and brutality by the american police for centuries.23 this claim is embellished by the video records showing the level of mastery with which the brutality is usually carried out, the perfect use of deadly tactics in tackling down, handcuffing, and skillfully choking black people to death even in broad daylight, amidst a global spectacle.24 in the past when there was little opportunity for the world to see these wrongful arrests and extra judicial killings, the police had managed to develop a set of excuses over the centuries, which are typically propagated by the mainstream media to show that black people were at the relevant time deserving of their death by allegedly resisting arrest, fleeing from the scene of crime, attempting to grab a police officer’s weapon, or were already ill with diseases, as if to suggest that they would have died anyways, etc.25 other times, when it is not convenient to draw from the established excuses, the deceased (the black person)’s past criminal record, if any, their health data, even though unrelated, are dug out and declared as contributory factors to the death.26 in the case of george floyd, the mainstream media reported post mortem that he tested positive for covid-19.27 in many instances, the policemen that carried out the murder were never charged at all, or were charged with the least possible offence with significantly reduced sentences,28 and sometimes released under parole before the end of their imprisonment term.29 this level of injustices continues to create 23 nicol lee, ‘where would racial progress in policing be without camera phones’ brookings (5 june 2020) <https://www.brookings.edu/blog/fixgov/2020/06/05/where-would-racial-progress-in-policing-bewithout-camera-phones/> accessed 7 june 2020. 24 bbc, ‘george floyd: ‘pandemic of racism’ led to his death, memorial told’ bbc news (5 june 2020) <https://www.bbc.com/news/world-us-canada-52928304> accessed 6 june 2020. 25 alfred cotton, ‘do black lives matter in american mainstream news media? two case studies of police-involved shootings of black men explaining a racist media environment’ (dphil thesis, 2016) <https://uknowledge.uky.edu/comm_etds/52> accessed 6 june 2020. 26 adam johnson, ‘how the media smears black victims’ los angeles times (30 march 2017) <https://www.latimes.com/opinion/op-ed/la-oe-johnson-black-victim-20170330-story.html> accessed 6 june 2020. 27 associated press, ‘autopsy report shows floyd tested positive for coronavirus’ us news (4 june 2020) <https://www.usnews.com/news/us/articles/2020-06-03/autopsy-report-shows-floyd-had-tested-posi t ive -for-covid-19> accessed 6 june 2020. 28 madison park, ‘police shootings: trials, convictions are rare for officers’ cnn (3 october 2018) <https://edition.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html> accessed 7 june 2020. 29 daily mail reporter, ‘former police officer who killed unarmed black train passenger is released from jail after serving just 11 months’ mail online (13 june 2011) <https://www.dailymail. co.uk/news/article-2003074/johannes-mehserle-killed-oscar-gran-released-jail-serving-11-months.html> accessed 5 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 229 unbearable pain to the black community as well as incalculable fear and tension about their existence.30 the fourth claim of this paper is that the white supremacists who designate black protesters as violent thugs and looters in breach the social contract, are worse in character and are not sincerely opposed to the acts of theft and violence: in any case, the wealth of america was built largely by looting resources with violence and thuggery from around the globe. this claim observes that often times when the police kill black people unjustly, and no real justice takes place to address the wrong due to the systemic racism and injustice, not many white americans cry out as patriots and protest for such injustice done to their fellow citizens. in american history, black protests are an avenue through which the unheard and marginalized voices seek to be heard, an avenue to show their level of disapproval of the system’s unjust treatments against them, a passionate appeal for the government and civil society to come to their aid, and a call for the stopping of the government’s sponsored loot of their rights and bodies.31 as martin luther king alluded, perhaps, when the right to protest was guaranteed under the first amendment in 1789, many white supremacists did not envisage that 74 years afterward, it would become the strongest weapon against the systemic oppression of black people.32 america and its white supremacists have looted resources from around the globe in sustaining themselves, starting from the slave trade, destabilization of families and the incessant bombing of the middle eastern and asian countries for their crude oil,33 sponsorship of cooperative dictators in africa including assisting them to bank embezzled funds,34 all for the sake of their oil resources.35 this ill-acquired wealth is brought home and largely owned by white americans who command more than 80 % of the total american wealth,36 which enables them to highly influence the country’s politics, law, justice system, 30 michael fletcher, ‘for black motorists, a never-ending fear of being stopped’ national geographic magazine/ the race issue <https://www.nationalgeographic.com/magazine/2018/04/the-stoprace-police-traffic/> accessed 7 june 2020. 31 tim dechristopher, ‘the value of protest’ moyers on democracy (23 july 2015) <https://billmoyers. com/2015/07/23/the-value-of-protest/> accessed 6 june 2020. 32 martin luther king jnr, ‘i have a dream’ the march on washington (1963) <https://www. archives.gov/files/press/exhibits/dream-speech.pdf> accessed 7 june 2020. 33 anthony cordesman, ‘the one true u.s. strategic interest in the middle east: energy’ middle east policy council (spring 2001) <https://mepc.org/journal/one-true-us-strategic-interest-middle-eastenergy> accessed 7 june 2020. 34 most of abacha’s embezzled funds were banked in the united states for over two decades. libby george, ‘u.s., jersey sign $300 million abacha loot reparation deal with nigeria’ reuters (4 february 2020) <https://www.reuters.com/article/us-usa-nigeria/u-s-jersey-sign-300-million-abacha-lootrepatriation-deal-with-nigeria-iduskbn1zy1w0> accessed 6 june 2020. 35 as dick cheney aptly put it, ‘the good lord didn’t see fit to put oil and gas only where there are democratically-elected regimes friendly to the united states. occasionally we have to operate in places where, all things considered, one would not normally choose to go. but, we go where the business is.” brian whitaker, ‘fueling the status quo’ the guardian (5 april 2004) <https://www.theguardian. com/world/2004/apr/05/worlddispatch.oil#maincontent>accessed 7 june 2020. 36 chuck collins, et al, ‘the racial wide divide report’ institute for policy studies (2019) 11 <https://inequality.org/wp-content/uploads/2019/01/ips_rwd-report_final-1.15.19.pdf> accessed 7 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 230 etc., to their advantage. the ultimate beneficiaries of these loots do not protest against the looting and violent acts of their government on innocent people abroad. however, when black people protest on the streets against racism, and a white supremacist group ‘hijacks’ the protests so as to obstruct or change the narrative,37 black people as a result, are labelled as barbaric thugs and terrorists, criticized for breaching their social contract and consequently lectured on how best to behave and express their anger against the system that oppresses them.38 the fifth and last claim is that the anger and disapproval that are felt by observers of black protests whereby properties are damaged, indeed pale into insignificance to the pain and suffering that is systemically unleashed by the american government against black people who are engulfed daily by the fear of indiscriminate arrests and the accompanying inability to bail themselves from detention due to high money bail.39 all this makes it difficult for black people to maintain steady employment or be hired for meaningful positions especially if they had unjustly sustained a high number of criminal records.40 similarly, due to frequent racial profiling and arrests, they stand a higher chance of being murdered by the police, higher chance of going to prison and serving a highly disproportional prison term,41 growing up poor and without parents because they are in prison,42 regularly cheated by their banks for mortgage and consumer loans via higher interest rates,43 etc. in the year 2020, it is submitted that these tales are unbefitting of a country that claims to be a great defender of rule of law and human rights. 1.2. the primary aim of the research the primary aim of this research is to convincingly show that irrespective of it being 2020, and the american congress churning out numerous laws on human rights 37 seema sirohi, ‘us protests: why black activists need real allies, not ‘hijackers’’ the quint (3 june 2020) <https://www.thequint.com/voices/opinion/george-floyd-killing-police-brutality-america-protestsblack-lives-matter-vandalism-versus-peaceful-protest> accessed 6 june 2020. 38 calvinjohn smiley & david fakunle, ‘from “brute” to “thug:” the demonization and criminalization of unarmed black male victims in america’ (2016) 26 journal of human behavior in the social environment, 2-3. <https://www.tandfonline.com/doi/full/10.1080/10911359.2015.1129256>; adrian horton, ‘john oliver: when trump uses the word thugs, you know what it’s code for’ the guardian (1 june 2020) <https://www.theguardian.com/culture/2020/jun/01/john-oliver-when-trump-usesthugs-code-racism-george-floyd-protests> accessed 7 june 2020. 39 bernadette rabuy & daniel kopf, ‘detaining the poor: how money bail perpetuates an endless cycle of poverty and jail time’ prison policy initiative (10 may 2016) <https://www.prisonpolicy. org/reports/incomejails.html> accessed 1 june 2020. 40 andre perry, ‘you can’t have an equitable economy while ignoring police violence’ city lab (28 march 2019) <https://www.citylab.com/perspective/2019/03/pittsburgh-police-shooting-antwon-rose-jobseconomy/585841/>accesed 7 june 2020. 41 ibid. 42 lottie joiner, ‘how absent fathers are hurting african american boys’ center for health journalism, university of south carolina <https://www.centerforhealthjournalism.org/resources/lessons/lessonsreporting-how-absent-fathers-are-hurting-african-american-boys> accessed 7 june 2020. 43 khristopher brooks, ‘disparity in home lending costs minorities million, researchers find’ cbs news (15 november 2019) <https://www.cbsnews.com/news/mortgage-discrimination-black-andlatino-paying-millions-more-in-interest-study-shows/> accessed 6 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 231 both for its domestic use and for export to other jurisdictions, coupled with its claim of being a great defender of rule of law and human rights, the black people in america do not generally experience the effects of these american claims in their daily lives. the pure capitalist approach which has crystallized into the private ownership and management of prisons and bail bonds for profit, further complicate the matter for black people: the owners of the bail bond and prison corporations generally see the former as fattened geese that lay golden eggs, thus, ‘hunting’ them down in the streets of america.44 therefore, the law-in-books do not work effectively for black people as much as they work for their white american counterparts. hence, a set of bespoke, sustainable, and less orthodox solutions must be developed and implemented to help the black people in america overcome the stranglehold of systemic racism. 1.3. the research questions, methodology, and the preliminary treatment of issues i.) the first question probes whether the american police enjoy any form of support from white supremacists (individuals and corporations) in the brutality, arrest, and unfair imprisonment of black people? to answer this question, the author defines support to be any direct or indirect endorsement of police brutality against black people in america. the author uses a few famous cases between 1991 and 2020 in which the police used brutal force to unjustly kill unarmed black people, to examine how the mainstream media owned and largely controlled by white americans reported the incidents. applying a reasonable person’s test, the author inquires whether a fair reporting which truly narrated the facts as they occurred was done, and whether the acknowledged brutality was derailed by focusing on extrinsic facts that were irrelevant to the circumstances surrounding the black victim’s death, and how all this relates to the protection of the vested interests of many white americans. the author also examines the typical responses of white supremacists whenever a policeman brutally kills a black person in america, even in circumstances where video records show that the nature of force used was excessive and illegal. the author further examines the typical utterances with the theory of bias, social contract theory, and human rights, to show that the social contract which the black people entered into with america is fundamentally breached on a regular basis by the latter without any adequate remedy, but is highly enforced whenever it is perceived that a black person is in breach. the author examines this question more concretely below under the theme titled the (‘metaphor of oppression’). ii.) in answering the second question, the author examines the level of enthusiasm, the perfected skills of assault against black bodies, and the inception of police brutality against the black people which dates back to several centuries in 44 joseph goldstein & ashley southall, ‘‘i got tired of hunting black and hispanic people’ new york times (9 december 2019) <https://www.nytimes.com/2019/12/06/nyregion/nyc-police-subwayracial-profiling.html> accessed 6 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 232 america. the author finds a reasonable correlation between this heightened level of brutality, racial profiling, random stop and frisk, and unfair justice system on the one hand, and private ownership of prison and bail bond corporations, which are largely owned by white americans, and for which the brutality of police and unfair court decisions are the initial steps toward accomplishing the larger aim of profiting from the mass incarceration of black bodies, on the other hand. curiously, the author inquires whether some policemen, judges, and key official in the justice system, somehow profit from the mass incarceration either as shareholders of these bail and prison corporations or direct recipients of bribes from the controlling shareholders and managers of these corporations?45 here, the author employs the adverse inference,46 shareholder primacy, and reasonable suspicion of bias theories to attempt the question. also, some notable cases of police brutality against black people are examined below to find out how many policemen were charged for their crimes?47 similarly, even though wearing of body cameras when confronting citizens was thought to be a win-win for the american police and black people,48 nearly always, the police in cases of brutality claimed that they forgot to turn on their body cameras or that it became mysteriously defective at the relevant time.49 the author uses statistical data as well as anecdotal evidence regarding the frequency of search and arrest of black people, degree of sentencing for crimes committed by them compared with their white counterparts who are treated with exceptional kindness: often given water to drink (sebastian arzadon),50 and hamburger to eat (dylann roof)51 during arrests for suspected murder offences. it is argued that this imbalance reveals the existence of a systemic hate that ravages the lives and hopes of black people in america: this is examined more concretely through the lens of shareholder primacy rule, which is arguably the main motive for the existence of the profit-oriented bail and prison corporations in america. this question is discussed more critically under the theme titled the (‘metaphor of hate’). 45 ibid. 46 see bodycam video released by police capturing other events in the killing of paul o’neal except the shooting part. 47 rob arthur, et al, ‘shot by cops and forgotten’ vice news (11 december 2017) <https://news. vice.com/en_us/article/xwvv3a/shot-by-cops> accessed 7 june 2020. 48 jay stanley, ‘police body-mounted cameras: with right policies in place, a win for all’ aclu (march 2015) <https://www.aclu.org/other/police-body-mounted-cameras-right-policies-place-winall?redirect=police-body-mounted-cameras-right-policies-place-win-all> accessed 4 june 2020. 49 mathew seagal, ‘if cops don’t turn on their body cameras, courts should instruct juries to think twice about their testimony’ aclu (1 december 2016) <https://www.aclu.org/blog/criminal-law-reform/ reforming-police/if-cops-dont-turn-their-body-cameras-courts-should> accessed 7 june 2020. also see the bodycam video which the police released following their shooting of paul o’neal. 50 news channel 5, ‘suspect arrested for lawrenceburg double murder’ news channel 5 (28 may 2020) <https://www.newschannel5.com/news/suspect-arrested-for-lawrenceburg-double-murder> accessed 7 may 2020. 51 abc, ‘cops bought burger king for dylann roof following his arrest’ eyewitness news (23 june 2015) <https://abc7.com/dylann-roof-south-carolina-church-shooting-emanuel-african-methodist-episcopal /801013/> accessed 6 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 233 52 cavin robinson, ‘social contract theory, african american, slave narratives, and the reconstruction of early modern conceptions of political freedom’ (dphil thesis, depaul university 2011) <https://via.library.depaul.edu/cgi/viewcontent.cgi?referer=https://www.google. com/&httpsredir=1&article=1082&context=etd> accessed 7 june 2020. 53 cf chuck collins, et al, (n 36). 54 james risen, et al, ‘u.s.-approved arms for libya rebels fell into jihadis’ hands’ new york times (5 december 2012) <https://www.nytimes.com/2012/12/06/world/africa/weapons-sent-to-libyan-rebelswith-us-approval-fell-into-islamist-hands.html> accessed 31 may 2020. 55 najim rahim & rod nordland, ‘a family of 14 dies in an airstrike. u.s. officials deny they were civilians’ the new york times (20 july 2018) <https://www.nytimes.com/2018/07/20/world/asia/ afghanistan-us-civilian-casualties.html> accessed 2 july 2020. 56 eric bonds, ‘assessing the oil motive after the u.s. war in iraq’ (2013) 25:2 peace review, 291298, doi: 10.1080/10402659.2013.785769; antonia juhasz, ‘why the war in iraq was fought for big oil’ cnn (15 april 2003) <https://edition.cnn.com/2013/03/19/opinion/iraq-war-oil-juhasz/index.html> accessed 4 june 2020. 57 rod nordland, et al, ‘how the u.s. government misleads the public on afghanistan’ the new york times (8 september 2018) <https://www.nytimes.com/interactive/2018/09/08/world/asia/usmisleads-on-afghanistan.html>; sue lannin, ‘afghanistan to begin first commercial oil production’ abc news (18 may 2013) <https://www.abc.net.au/news/2013-05-18/australia-backs-afghan27s-strugglingminers/4698082#:~:text=afghanistan%20has%20untapped%20mineral%20and,income%20of%20 %24470%20per%20year.> accessed 5 june 2020. 58 christopher davidson, ‘why was muammar qadhafi really removed?’ (2017) 24(4) middle east policy, 91-116. 59 michael klare, ‘twenty-first century energy wars: how oil and gas are fueling global conflicts’ energy post (15 july 2014) <https://energypost.eu/twenty-first-century-energy-wars-oil-gas-fuellingglobal-conflicts/> accessed 31 may 2020. iii.) black people who protest on the streets of america against systemic racism and injustices are frequently labeled as violent thugs, terrorists, and looters of property in breach of the social contract.52 the author asks whether the white supremacists giving these labels are truly opposed to acts of violence, thuggery, and theft of property given that the wealth of america which they largely own,53were acquired by the american government from other countries using rebel fighters,54 deception, violence, thuggery, bombs55 and boots, as in iraq,56 afghanistan,57 libya,58 vietnam,59 etc.,: yet the government does not receive any serious criticisms for their acts by majority of the white americans who accuse these black protesters of violence? a corollary question is whether the nature of protests, for instance, the type undertaken in the aftermath of george floyd’s death, has been beneficial to black people in achieving their just causes in america, and if so, whether the discouragements from white supremacists in this regard are ill-motivated faith? the paper further examines the motives behind america’s strong military presence and interests in africa, asia and middle east. the wars it has fought, and the natural resources it has plundered from other countries beginning with the slave trade, and how these spoils have helped to build its economic empire without any significant outrage from white americans against the government’s heinous crimes against humanity. the paper uses the legal concept of trust to discuss this question, and show why the looted systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 234 60 liby george, ‘u.s., jersey sign $300 million abacha loot reparation deal with nigeria’ reuters (4 february 2020) <https://www.reuters.com/article/us-usa-nigeria/u-s-jersey-sign-300-million-abacha-lootrepatriation-deal-with-nigeria-iduskbn1zy1w0> accessed 6 june 2020. 61 united states census bureau, ‘black or african american population in the united states’ (2019) <https://www.census.gov/quickfacts/fact/table/us/ipe120218> accessed 7 june 2020. 62 wesley lowery, ‘more whites killed by police, but blacks 2.5 times more likely to be killed’ chicago tribune (11 july 2016) <https://www.chicagotribune.com/nation-world/ct-police-shootings-race20160711-story.html> accessed 3 june 2020. 63 mohammed haddad, ‘mapping us police killings of black americans’ aljazeera (31 may 2020) <https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-blackamericans-200531105741757.html> accessed 5 june 2020. 64 ibid. 65 ibid. resources ought to constitute america a constructive trustee.60 also, the paper ponders a little about how the growing request for america’s reconciliation and reparation of black people for their enslavement for 400 years has been generally treated by white supremacists in america. it also assesses the level of significance of black protests given that the system they protest against is hardwired to oppress and keep them impoverished and on the periphery of american life. these questions are examined below under the theme titled the (‘metaphor of violence’). 2. the metaphors underlining black bodies in america as earlier mentioned above, the justification for the choice of metaphors is rooted in the common observations, repeatedly reinforced in the american mainstream media, regarding how the ‘black body’ has become a symbol or almost synonymous with oppression, hate, violence, and even poverty. since the metaphors and black bodies have nearly become synonymous owing largely to racism in america, this paper uses these familiar metaphors to analyze the issues surrounding police brutality in order to enable the reader appreciate the issues from their historical and contemporary standpoints. 2.1. the metaphor of oppression: police brutality of black people and the silent endorsement by white supremacists in america as hinted earlier, this paper designates white people in america who support racism in any way as ‘white supremacists’. according to data, black people in america make up 13.4 % of the total population,61 and have been estimated to be 2.5 % more likely to be killed by the police than their white counterparts.62 california, florida and texas rank as top states where police officers have disproportionately killed black people.63 in utah, the black people are 1.06% of the total population,64 yet they constituted 10 % of the police killings over a period of 7 years data, a clearly disproportionate rate of about 9.21 times more likely to be killed by the police compared to their white counterparts.65 in minnesota where george floyd was killed by a police officer, black people are nearly four times more likely to be killed by the police, and comprise of 20 % of those killed williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 235 despite being only 5 % of the total population.66 in washington d.c, the black people constitute about 50 % of the total population, and comprised of 88 % of the total police killings, which is a discrepancy of about 38 %.67 in rhode island, the discrepancy rate was about 44 %.68 and about “99 percent of all officers involved in all police killings had no criminal charges pressed against them.”69 of course, it is impossible for any statistical data to capture all the police killings in america. yet, it is important to underline that in all the cases, nearly all the policemen involved were white americans, and were not charged with any offence by the grand juries and police departments who are also largely dominated by white americans. if in 99 % of the time, the police who killed unjustly were not charged, then it becomes a strong but tacit support for their wrongdoing. so, below, based on the author’s review of the relevant events, three main forms of support that are regularly enjoyed by white american police officers who harass and kill black people unjustly are identified and discussed. 2.2. support from fellow police officers and other police-connected departments the first is a direct support from a killer-cop’s fellow police officers (prosecutors) who cover up for the former’s wrongdoing by not bearing true witness and pressing criminal charges in most of the cases.70 in the author’s view, they do not press charges or give factual evidence against their fellow officers, perhaps, because it protects the broader agenda of making money out of incarceration, and also as a personal hedge against being charged in the future, in the likely event they unjustly kill a black person.71 given that in a criminal case, the prosecutor has to satisfy a higher standard of proof, i.e. proof beyond a reasonable doubt, obtaining a justifiable conviction is only possible if the prosecution counsel is truly committed in gathering sufficient evidence to achieve justice in a given case. the entire police force therefore engages seemingly in some barter trade with black bodies, giving and receiving favors amongst themselves. similarly, the connected departments that work to provide support to the police, e.g., provision of medical attention to victims in a crime scene, conducting lab tests or autopsy to provide a scientific guidance to investigations, have also been largely compromised.72 this compromise stems from their subservience and lack of independence, and the fact 66 ibid. 67 ibid. 68 ibid. 69 ibid. 70 ibid. also see the cases discussed in section 2.6 below. also see ben crump, ‘i believe black americans face a genocide. here’s why i choose that word’ the guardian (15 november 2019) <https://www.theguardian. com/commentisfree/2019/nov/15/black-americans-genocide-open-season> accessed 4 june 2020. 71 mellisa chan, ‘a police officer killed their mother, and her sons want to know why he hasn’t faced trial’ time (18 july 2019) <https://time.com/5628206/police-shooting-trial-knowlton-garner/> accessed 5 june 2020. 72 radley balko, ‘it’s time to abolish the coroner’ the washington post (12 december 2017) <https:// www.washingtonpost.com/news/the-watch/wp/2017/12/12/its-time-to-abolish-the-coroner/> accessed 7 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 236 that they need the endorsements of the high ranking officers in the police department to generally thrive and prevent any fall from their career scaffold.73 as coroners and medical examiners are usually appointed, the saying that ‘whoever that pays a piper dictates the tune’ is apt in describing the relationship between the police and the support departments connected to them. the further challenge is that if a worker in a policeconnected department had at one point been compromised, they lose their credibility and moral right to speak out in other wrongdoings, since those who seek equity and justice would normally do so with clean hands.74 all this leads finally to the frequent manipulation of evidence to suit whatever narrative the police chiefs want the public to hear,75 and in many instances, black people have been falsely prosecuted for murder and rape,76 losing their lives and languishing in prison for decades (sometimes for 36 years)77 because the police suppressed evidence and hid it from the defense counsel; evidence that would have exonerated and resulted to their acquittal ab initio.78 the police culture of hiding or manipulating evidence to suit their narrative is so deeply encrusted, such that even though george floyd was killed in broad daylight in the full spectacle of the world, whereby a white policeman knelt heavily at the back of his neck for about nine minutes, three minutes of which was after mr. floyd was no longer responsive, the autopsy report conducted by the police-connected-department purportedly showed that “arteriosclerotic and hypertensive heart disease; fentanyl intoxication; and recent methamphetamine use,” had contributed to mr. floyd’s death,79 thereby mitigating or partially excusing the evil-styled execution the world had eye-witnessed in the hands of derek chauvin, and the other three police officers who assisted him in the execution. this shocking attitude of the state medical examiners underlines the high level of support these killing cops receive for their wrongdoings: this raises a further critical but rhetorical question: if the medical examiners could try to manipulate evidence for a killing that was observed by the entire world as it happened, what more about other killings that were not video-recorded? this type of support given by fellow police officers and the connecteddepartments to cops that unjustly kill black people is oppressive and incompatible with the american hymn of being a ‘land of the free’. 73 ibid. 74 ibid. 75 ibid. 76 for a comprehensive list of wrongful convictions of black people, see samuel gross, et al, ‘race and wrongful convictions in the united states’ national registry of exonerations (7 march 2017) <http:// www.law.umich.edu/special/exoneration/documents/race_and_wrongful_convictions.pdf> accessed 5 june 2020. 77 bbc, ‘maryland trio set free after being wrongfully jailed for 36 years’ bbc news (26 november 2019) <https://www.bbc.com/news/world-us-canada-50557396> accessed 7 june 2020. 78 in the central park five, the dna found on the scene of crime did not match with the accused persons, yet, the police suppressed this finding, and relied on the involuntary confessions of the suspects to obtain convictions. bbc, ‘central park five: the true story behind when they see us’ bbc news (12 june 2019) <https://www.bbc.com/news/newsbeat-48609693> accessed 5 june 2020. 79 rachel sandler, ‘george floyd had coronavirus, autopsy finds, but it wasn’t a factor in his death’ forbes (3 june 2020) <https://www.forbes.com/sites/rachelsandler/2020/06/03/george-floyd-hadcoronavirus-autopsy-finds-but-it-wasnt-factor-in-his-death/#3e87558c2b44> accessed 3 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 237 2.3. support from the mainstream media the second form of support that these killing cops in america receive comes from the mainstream media which are largely owned by white americans.80 nearly always, as soon as a black person is killed unjustly by the police, the mainstream media swing in to constitute themselves the jury and judge. even where there is a dashboard camera, body camera, or a nearby circuit camera television video record of the killing event, the police and media skillfully edit out portions of the video record that might incriminate the concerned police officer(s), and then present it in a fast motion and haphazard manner to the public for just a few seconds, such that no reasonable comprehension of what happened can be achieved by the viewers.81 they also announce that the full story is not yet known since no one knows exactly what transpired prior to the video recording, between the murdered black person and the police. to further sow a seed of doubt in the public’s mind, they often speculate that they do not know for sure whether the deceased was resisting arrest or fleeing from the scene of crime. almost immediately, the mainstream media redirect the public’s attention to an alleged bad character of the deceased black person,82 showing mugshots of him, if any, and any past criminal records, almost to suggest that his death was deserved.83 sometimes, the deceased’s apartment is searched by the police post-mortem, just to locate or implant84 any evidence they believe will help their narrative, and the mainstream media focus on such irrelevant pieces of information as red-herring toward legitimizing the wrongful killing. similarly, the mainstream media tacitly endorse the killing of the black person by showing the killing cop’s elegant photographs in his official uniform, perhaps taken during his graduation from the police academy, alongside a mugshot of the victim, as was in samuel dubose case.85 in the author’s view, this is done to forcibly impress on the mind of the public that this was just a good cop trying to rid society of a very bad person. this skewed type of narrative is championed regularly by the mainstream media 80 cf adam johnson (n 26). 81 sue dremann, ‘report: police tampered with taser recordings’ palo alto online (1 december 2008) <https://www.paloaltoonline.com/news/2008/12/01/report-police-tampered-with-taser-recordings>; jeff proctor, ‘da: allegations of police tampering with video warrant federal investigation’ criminal justice & public safety (21 november 2016) <https://nmpoliticalreport.com/2016/11/21/da-allegations-ofpolice-tampering-with-video-warrant-federal-investigation/> accessed 7 june 2020. also see the bodycam video record that was released by the police following the shooting of paul o’neal which reasonably indicates that it was edited to ensure against the conviction of the cops for wrongful killing. 82 cf adam johnson (n 26). 83 the enquirer, ‘a flag photo of a murder suspect, a mugshot of a victim’ cincinnati.com (29 july 2015) <https://www.cincinnati.com/story/news/2015/07/29/sam-dubose-social-media-reaction-photo/3 085 8745/> accessed 6 june 2020. 84 meagan flynn, ‘us officer pulled random people over and planted meth inside their cars, causing them to lose their freedom, their children, their marriages’ independent (12 july 2019) <https:// www.independent.co.uk/news/world/americas/police-us-planted-evidence-meth-marijuana-cars-floridazachary-a9001961.html> accessed 6 june 2020; susan criss, ‘protecting bad police undermines law and order’ the daily news (7 june 2020) <https://www.galvnews.com/opinion/guest_columns/article_ f6f214de-b626-566e-bc52-284922d7461c.html> accessed 7 june 2020. 85 cf the enquirer (n 83), ‘a flag photo of a murder suspect, a mugshot of a victim’. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 238 to deflect any possibility of angry protests that might endanger the property of the white americans.86 2.4. support from white supremacists the concept of ‘white privilege’87 in america is underlined by the favorable treatment white americans exclusively receive from the police: the former know exactly how to use this privilege against black people, as was in the central park five case in 1989. the accused persons in this case were later found to be innocent in 2002, even though at the time of accusation, donald trump had spent $85,000 in front cover adverts advocating for their death, stating in strong terms that he ‘hated’ them.88 more recently in 2020, christian cooper, a black man, was lucky to escape a potential death or prison sentence while watching birds in the central park, where a white woman had dialed 911 and falsely cried out or reported that she ‘was being threatened and harassed by an african american man’, mr. cooper.89 the recorded video evidence to the contrary went viral on the internet and helped to save cooper in the circumstance, thus avoiding a repeat of the central park five. white americans (many of whom acknowledge it) do not generally experience negative profiling that leads to incessant stopping, frisking, and arrest by the police and the possibility of having an incident escalated to the point that seemingly justifies brutality. most times, black people are arrested and handcuffed for no good reason other than that the victim was resisting arrest even when not under arrest, or ‘disrespecting’ the police.90 also, white supremacists in america enjoy enormous benefit of the doubt from the police and are considered as ‘very fine people.’ for instance, when they protested on the streets with guns against covid-19 ‘social distancing’ policies,91 or protested with nazi flags92 and chanted racial slurs against people of other races, the president of the country, 86 tracy everbach, et al, ‘#iftheygunnedmedown: an analysis of mainstream and social media in the ferguson, missouri, shooting of michael brown’ (2018) 12(1) electronic news 23-41 <https:// journals.sagepub.com/doi/pdf/10.1177/1931243117697767> accessed 7 june 2020. 87 cory collins, ‘what is white privilege, really?’ (2018) issue 60, teaching tolerance <https://www. tolerance.org/magazine/fall-2018/what-is-white-privilege-really> accessed 6 june 2020. 88 cf central park five (n 78). donald trump: “i want to hate these murderers and i always will. i am not looking to psychoanalyse or understand them, i am looking to punish them.” 89 terina allen, ‘3 things amy cooper did in central park to damage her reputation and career’ forbes (29 may 2020) <https://www.forbes.com/sites/terinaallen/2020/05/29/3-things-amy-cooper-did-incentral-park-that-destroyed-her-life/#6abe2ba76198> accessed 6 june 2020. 90 bill hutchinson, ‘police chief orders probe in handcuffing of black miami doctor on front lines of coronavirus fight’ abc news (13 april 2020) <https://abcnews.go.com/us/police-chief-orders-probehandcuffing-black-miami-doctor/story?id=70111116> accessed 6 june 2020. 91 michael warren, et al, ‘conservative groups are boosting the anti-lockdown protests – “i think the president wants this country to get back to work’ the mercury news (21 april 2020) <https://www.mer c u ry news.com/2020/04/20/conservative-groups-are-boosting-the-anti-lockdown-protests/> accessed 5 june 2020. 92 eliza relman, ‘fox news host defended anti-lockdown protesters who called michigan’s governor a nazi as they displayed confederate flags and swastikas’ business insider (18 april 2020) <https://www. businessinsider.in/politics/world/news/fox-news-host-defended-anti-lockdown-protesters-who-calledmichigans-governor-a-nazi-as-they-displayed-confederate-flags-and-swastikas/articleshow/75225345.cms> williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 239 donald trump, called them ‘very good people’ who were just ‘angry’, and advised the law enforcements and governors to treat them very kindly.93 this unduly favorable treatment triggers the memory of martin luther king jnr., who rightly believed that the drafters of the first and second amendments’ rights in 1789 and 1791 respectively, did not contemplate that black people in america who first came in contact with concepts of human rights in the thirteenth amendment in 1865, will enjoy the right to protest, let alone bear arms.94 the support white americans receive from the police is unarguably symbiotic in the sense that the police treat them with exceptional kindness and empathy, even offering them water95 and hamburger96 in the process of arrest for capital offences, or hugged tightly by a judge and the victim’s family shortly after conviction as was shown to amber guyger.97 perhaps, this level of sympathy and compassion ought to be the model of how every human being in america should be treated by their fellow citizens, the police and justice system. in reciprocating the favor underlying this police partiality, many white americans try not to criticize the police no matter what the latter have done; they try to rationalize and make excuses on their behalf as michael bloomberg did after the wrongful killing of sean bell by the nypd officers.98 generally, and perhaps understandably, it is difficult for white americans enjoying their white privileges, e.g., not being arrested for fatally shooting almaud arbery, until after 74 days following twitter and facebook outcries,99 to begrudge the same police that feed them regularly with these privileges, and since they do not recurrently lose family members due to wrongful arrests and extra judicial killings by the police, even when such family members were resting or sleeping in the comfort of their homes as were the cases of atatiana jefferson,100 botham 93 in response to the protest, trump tweeted that “these are very good people, but they are angry. they want their lives back again, safely!” anne gearan & john wagner, ‘trump calls michigan protesters ‘very good people’’ boston (2 may 2020) <https://www.boston.com/news/national-news-2/2020/05/02/ trump-calls-michigan-protesters-very-good-people> accessed 7 june 2020. 94 cf martin luther king jnr (n 32). trevor noah, commentary on the police shooting of mr. emantic bradford jr. the daily show. 95 cf sebastian arzadon (n 50). 96 cf dylann roof (n 51). 97 sarah mervosh, ‘amber guyger’s judge gave her a bible and a hug. did that cross a line?’ new york times (4 october 2019) <https://www.nytimes.com/2019/10/04/us/amber-guyger-judge-tammykemp-hug.html> accessed 8 june 2020. 98 michael bloomberg, the new york city mayor at that time said “we know that the officers on the scene had reason to believe an altercation involving a firearm was about to happen and were trying to stop it,” julian burger, ‘new york on edge as police kill unarmed man in hail of 50 bullets on his wedding day’ the guardian (7 november 2006) <https://www.theguardian.com/world/2006/nov/27/usa. julianborger>; emily tamkin, ‘how white america excuses its own violence’ newstatesman (29 may 2020) <https://www.newstatesman.com/world/2020/05/minneapolis-protests-george-floyd-killing-blackwhite-america-race-riots> accessed 8 june 2020. 99 janelle griffith, ‘ahmaud arbery shooting: a timeline of the case’ nbc news (12 may 2020) <https://www.nbcnews.com/news/us-news/ahmaud-arbery-shooting-timeline-case-n1204306> accessed 7 june 2020. 100 erik ortiz, ‘forth worth police officer who fatally shot atatiana jefferson indicted on murder charge’ nbc news (21 december 2019) <https://www.nbcnews.com/news/us-news/fort-worth-policeofficer-who-fatally-shot-atatiana-jefferson-indicted-n1105916> accessed 7 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 240 jean,101 breonna taylor,102 etc.,: in truth lack of such bitter experiences make it difficult for white americans to be in black people’s shoes, or empathize, or get truly disgusted and angry at these countless incidents of police brutality. instead, many white americans appear to have been generally socialized to see police killings from the mainstream lenses, such that when a white police officer kills a black person, it is thought that he most likely killed him in self-defense:103 i.e. the officer was most likely threatened by the black person, even when the latter was moving away from the police officer as was in walter scott’s case104 or strictly complying with instructions as was in philando castile’s case.105 they have also been socialized to cite some false equivalent and isolated incidents to whittle the truth that accrues from the repeated pattern of black killings. for instance, the blacklivesmatter106 movement is quelled by white supremacists with alllivesmatter, whitelivesmatter, and bluelivesmatter movements, which purport to deny the real issues of systemic injustice and inequality that black people in america suffer and genuinely complain about. however, if a black person kills a white policeman in the heat of passion, it is largely seen as murder and the entire justice system ensures that a life sentence is given, with the ridiculous possibility of ‘serving an additional 38 years after death’, as was the case with tremaine wilbourn.107 if a black person kills another black person, it is considered as a ‘gang fight’ and good for society since they are helping the system to get rid of themselves.108 if a non-white muslim kills a white person for whatever reason, 101 tom dart, ‘amber guyger guilty of murdering black neighbor botham jean in his own home’ the guardian (1 october 2019) <https://www.theguardian.com/us-news/2019/oct/01/amber-guyger-texasdallas-jury-botham-jean> accessed 7 june 2020. 102 victoria albert, ‘911 call from breonna taylor’s shooting death released: “somebody kicked in the door and shot my girlfriend’ cbs news (29 may 2020) <https://www.cbsnews.com/news/breonnataylor-kenneth-walker-911-call-police-shooting/> accessed 7 june 2020. 103 benjamin wallace-wells, ‘police shootings, race, and the fear defense’ the new yorker (12 july 2016) <https://www.newyorker.com/news/benjamin-wallace-wells/police-shootings-race-and-thefear-defense> accessed 6 june 2020. 104 amanda holpuch & oliver laughland, ‘michael slager fired from south carolina police force after killing of walter scott’ the guardian (8 april 2015) <https://www.theguardian.com/usnews/2015/apr/08/michael-slager-south-carolina-officer-walter-scott-fired> accessed 8 june 2020. 105 ciara mccarthy, ‘philando castile: police officer charged with manslaughter over shooting death’ the guardian (16 november 2016) <https://www.theguardian.com/us-news/2016/nov/16/philandocastile-shooting-manslaughter-police-jeronimo-yanez> accessed 7 june 2020. 106 the official website of black lives matter <https://blacklivesmatter.com/> 107 ‘tremaine wilbourn was sentenced to an additional 38 years on top of a life sentence for killing a memphis police officer sean bolton’: linda moore, ‘tremaine wilbourn gets 38 years added to life sentence in slaying of mpd officer sean bolton’ commercial appeal (17 december 2018) <https://www. commercialappeal.com/story/news/2018/12/17/memphis-police-killing-tremaine-wilbourn-gets-38-yearsadded-life-sentence/2281111002/> accessed 8 june 2020. 108 anthony braga & rod brunson, ‘the police and public discourse on “black-on-black” violence’, new perspective in policing, harvard kennedy school (may 2015) <https://www.hks.harvard. edu/sites/default/files/centers/wiener/programs/pcj/files/policeandpublicdiscourseblackonblackviolence. pdf> accessed 7 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 241 justified or not, it is typically considered an act of terror, and the killer, perhaps a native born american, is automatically labelled a terrorist, with the accompanying threat to deport his family members and friends.109 conversely, where for example, a white person walked into a black church and murdered the worshippers,110 he was assisted by the mainstream media with showers of pity, designating him a lone wolf that was mentally ill, thus shifting the focus to mental incapacity and an appeal for compassionate treatment rather than hate in such a difficult moment of his life.111 the mainstream media’s regular plea of mental ill-health when a white person commits a heinous crime is perhaps aimed at influencing the jury during trial to tamper justice with mercy. white americans constitute about 76.5 %112 of the total population and a significant percentage of them see issues from the above lenses, and since they constitute more than 80 % of the entire police force and justice system,113 and own 80 % of the american wealth,114 it becomes clearer why the police have a large fan base that drum and cheer them up from the sidelines no matter what they do. this level of white privilege, further showcased in the key cases below, is exceedingly oppressive to black people and other racial minorities, and thus highly unacceptable from the human rights and ethical standpoints. 2.5. a few illustrative cases of police brutality against black people in america between 1991 2020 2.5.1. rodney king (1991) on 3 march 1991, rodney king was unarmed when he was violently beaten by 14 police officers of the los angeles police department.115 a civilian recorded the violent incident and sent it to the media. at a press conference, los angeles police chief, daryl gates, admitted that striking mr. king 56 times with a baton and dumping about 50,000 volts on his body was an excessive use of force and promised to discipline 109 lacy gray, ‘muslim bashing in the wake of boston bombing’ national geographic news (26 april 2013) <https://www.nationalgeographic.com/news/2013/4/130426-boston-marathon-bombing-racism-hate -a nti-a rab-muslim-tamerlan-dzokhar-tsarnaev/> accessed 7 june 2020. 110 cf dylann roof (n 51). 111 glenn smith & jennifer hawes, ‘unsealed documents shed light on dylann roof’s mental health issues’ the post and courier (2 february 2017) <https://www.postandcourier.com/church_shooting/ unsealed-documents-shed-light-on-dylann-roofs-mental-health-issues/article_404a01bc-e959-11e6-ad240f32fef2c5bb.html> accessed 8 june 2020. 112 united states census bureau, ‘the population of white people in the united states’ (2019) <https://www.census.gov/quickfacts/fact/table/us/ipe120218> accessed 8 june 2020. 113 jeremy ashkenas, et al, ‘the race gap in america’s police departments’ new york times (3 september 2014) <https://www.nytimes.com/interactive/2014/09/03/us/the -race-gap-in-americas-police-de pa rtm ents.html?mtrref=www.google.com& gwh=769d ce1705226c8 9783ca65b7fade62 0&gwt=pa y& as s ett ype=paywall> accessed 6 june 2 020. 114 cf chuck collins, et al, (n 36). 115 maeve reston, ‘rodney king shot while riding bike’ los angeles times (30 november 2007) <https://www.latimes.com/archives/la-xpm-2007-nov-30-me-king30-story.html> accessed 8 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 242 the officers involved.116 four officers out of the 14 were charged, three of them were acquitted, and the jury could not reach a verdict for the fourth.117 the acquittals sparked an outraged among the black community who started the ‘1992 los angeles riots’ that lasted for six days with a lot of casualties until quelled by the california army national guard, the u.s. army, and the marine corps. after this, the four officers were retried in a federal district court and two out of the four charged were found guilty and imprisoned for 2.5 years.118 in a separate suit, king was awarded $3.8 million by the city of los angeles.119 king later published his memoir in 2012 and was found dead two months afterward in his swimming pool.120 the coroner’s autopsy showed the presence of alcohol and drugs in his system and concluded that these and his heart condition likely led to his accidental drowning.121 2.5.2. amadou diallo (1999) he was black, shot and killed by four plain-clothed policemen who later claimed that they mistook him for a rape suspect, an incident that occurred a year earlier.122 the officers fired 41 shots, 19 of which struck diallo (unarmed) outside his apartment. the officers were charged with second degree murder in albany but were acquitted at trial.123 2.5.3. sean bell (2006) he was black and unarmed when he was fatally shot on the eve of his wedding during a bachelor’s party. the nypd officers in plain cloths fired a total of 50 rounds at bell’s car which killed him.124 eyewitness accounts of what happened were contradicted by the police’s account which manipulated the facts.125 three out of five detectives that carried out the shooting were charged for first and second degree assault, and a second degree assault of reckless endangerment; they were all found not guilty. 116 benjamin houston, ‘the 1992 la riots’ history extra (2 june 2020) <https://www. historyextra.com/period/20th-century/los-angeles-la-riots-rodney-king-caused-died-cost-consequences/>; associated press, ‘rodney king riots: timeline and key events’ the associated press news (27 april 2017) accessed 8 june 2020. 117 ibid. 118 ibid. 119 ibid. 120 ibid. 121 ibid. 122 christian red, ‘years before black lives matter, 41 shots killed him’ new york times (19 july 2019) <https://www.nytimes.com/2019/07/19/nyregion/amadou-diallo-mother-eric-garner.html> accessed 8 june 2020. 123 ibid. 124 julian borger, ‘new york on edge as police kill unarmed man in hail of 50 bullets on his wedding day’ the guardian (7 november 2006) <https://www.theguardian.com/world/2006/nov/27/usa. julianborger> accessed 8 june 2020. 125 ibid. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 243 2.5.4. oscar grant (2009) he was black and unarmed at the time of his arrest for a suspected fight.126 one of the police officers threw him on the ground face-down and kneeled at the back of his head, while his colleague, johannes mehserle, a white police officer, drew out his gun and shot him fatally in the back. the video of the shooting went viral and mehserle was arrested, charged for second degree murder, but was found guilty of only involuntary manslaughter, and not guilty of the other charges for murder and voluntary manslaughter.127 he was sentenced to 2 years but later released on parole after serving 11 months in los angeles county jail, where he was held in a private cell for his safety.128 the bart police later settled grant’s family with $2.8 million.129 2.5.5. eric garner (2014) he was accused of selling single cigarettes from packs without tax stamps.130 daniel pantaleo, a white officer of nypd, tackled mr. garner down and put him in a chokehold during the arrest. about three other officers, mr. pantaleo’s colleagues, helped to pin garner to the ground, and his plea that he could not ‘breathe’ was ignored. the medical examiner ruled that his death was a homicide but also cited ‘asthma and heart disease’ as contributory factors.131 the richmond county grand jury decided not to indict mr. pantaleo.132 this sparked a nationwide outrage leading to about 50 demonstrations on the streets of america. the new york city settled for $5.9 million with mr. garner’s family.133 the us department of justice in 2019, refused to bring any criminal charges against pantaleo,134 and only his employment was recommended to be terminated after five years of intentionally killing mr. garner.135 126 sam levin, ‘officer punched oscar grant and lied about facts in 2009 killing, records show’ the guardian (2 may 2019) <https://www.theguardian.com/us-news/2019/may/02/officer-punched-oscargrant-and-lied-about-facts-in-2009-killing-records-show> accessed 7 june 2020. 127 ewen macaskill, ‘oscar grant shooting: officer found guilty of involuntary manslaughter’ the guardian (9 july 2010) <https://www.theguardian.com/world/2010/jul/09/oscar-grant-oakland-policeshooting> accessed 10 june 2020. 128 cf daily mail reporter (n 29). 129 ibid. 130 eric garner’s video, ‘i can’t breathe’: eric garner put in chokehold by nypd officer’ the guardian (4 december 2014) <https://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garnerchokehold-death-video> accessed 7 june 2020. 131 ali winston, ‘medical examiner testifies eric garner died of asthma caused by officer’s chokehold’ new york times (15 may 2019) <https://www.nytimes.com/2019/05/15/nyregion/eric-garner-death-danielpantaleo-chokehold.html> accessed 7 june 2020. 132 andrew siff, et al, ‘grand jury declines to indict nypd officer in eric garner chokehold death’ nbc new york (4 december 2014) <https://www.nbcnewyork.com/news/local/grand-jury-decision-ericgarner-staten-island-chokehold-death-nypd/1427980/> accessed 8 june 2020. 133 david goodman, ‘eric garner case is settled by new york city for $5.9 million’ new york times (14 july 2015) <https://www.nytimes.com/2015/07/14/nyregion/eric-garner-case-is-settled-by-new-yorkcity-for-5-9-million.html> accessed 8 june 2020. 134 katie benner, ‘eric garner’s death will not lead to federal charges for nypd officer’ new york times (16 july 2019) <https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-danielpantaleo.html> accessed 7 june 2020. 135 ibid. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 244 2.5.6. michael brown (2014) he was black and unarmed, with his hands raised at the time of the multiple fatal shots at him by a white police officer, mr. darren wilson, in ferguson. however, the investigations report by the fbi declared that there was no evidence that brown raised his hands and warned the police not to shoot him.136 the st. louis county grand jury decided137 not to prosecute mr. wilson and the us department of justice cleared mr. wilson of all civil rights violations in the shooting.138 there were nationwide protests disapproving of the unjustifiable lethal force used on brown and other similar cases of black shootings.139 2.5.7. antwon rose (2018) he was black and unarmed at the time he was fatally shot by a white policeman, michael rosfeld, in east pittsburg.140 mr. rosfeld was charged with criminal homicide, but after a 4-day trial, he was acquitted on all counts.141 there were many demonstrations objecting to the acquittal verdict, the longest of which lasted for three days before dying out. 2.5.8. george floyd (2020) george floyd, was a black man, and unarmed when he was being arrested by the police for a suspected offence of forgery. contrary to the police report accusing him of resisting arrest, video records from nearby cctvs showed that mr. floyd was calm and cooperative during the arrest. however, he was thrown to the ground and pinned strongly by two of the officers, another officer helped to stave off any possible interventions by onlookers, which provided derek chauvin, a former white police office, the comfort to use his knee to pin floyd’s neck on the tarmac for about nine minutes, the last 3 minutes being after floyd was no longer responsive.142 throughout the kneeling on floyd’s neck, chauvin pocketed his hand with nonchalance, a significant indication that he was fully aware of his actions and what he wanted to achieve. floyd repeatedly pleaded that he could not ‘breathe’, pleaded 136 jake halpern, ‘the cop darren wilson was not indicted for shooting michael brown. many people question whether justice was done’ the new yorker (3 august 2015) <https://www.newyorker.com/ magazine/2015/08/10/the-cop> accessed 7 june 2020. 137 ibid. 138 ibid. 139 ibid. 140 adeel hassan, ‘antwon rose shooting: white police officer acquitted in death’ new york times (22 march 2019) <https://www.nytimes.com/2019/03/22/us/antwon-rose-shooting.html> accessed 7 june 2020. 141 ibid. 142 evan hill, et al, ‘8 minutes and 46 seconds: how george floyd was killed in police custody’ new york times (31 may 2020) <https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html> accessed 8 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 245 for water, called on his dead mother, and a little opportunity to stand a bit. bystanders who were filming the incident pleaded with mr. chauvin for mercy but he would not listen to them. at the time of writing this paper (june 2020), chauvin has been charged with a second degree murder following a nationwide protest, while the other three officers have been charged for “aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.”143 meanwhile, donald trump through tweets and rose garden speeches helped to fuel the anger underlying the protests; he called the protesters thugs, looters, terrorists, and used the u.s. military to ‘dominate’ them.144 the forgoing cases of race-motivated killings and injustices against black people prove that they are systemically being oppressed in america, even though in theory, they have a bundle of human rights and deemed equal with white people. the american government has failed to adequately protect and provide for black people the same way it protects and provides for their white counterparts, and for this reason, the government is in fundamental breach of the social contract with black people.145 in the circumstance, black people ought not to be obligated in following the black-letter law and procedures toward showcasing their grievances over the breach of social contract; they ought to be discharged from further performance until the american government can pay damages for the centuries of breach through sincere and sustainable justice reforms that truly ensure racial equality in america. 3. the metaphor of hate: private prisons, money bail, and profiteering mass incarceration of black bodies 3.1. reexamining the thirteenth amendment from a functional approach: the slave plantations reincarnated as the american prisons the thirteenth amendment to the american constitution abolished slavery and involuntary servitude except in the context of punishment.146 per capita, america imprisons its citizens more than any other country in the developed world147 with the 143 bbc, ‘george floyd death: new charges for all four sacked officers’ bbc news (3 june 2020) <https:// www.bbc.com/news/world-us-canada-52915019#:~:text=derek%20chauvin%20charged%20with%20 murder&text=former%20minneapolis%20police%20officer%20derek%20chauvin%2c%2044%2c%20 is%20charged%20with,combined%20maximum%2035%2dyear%20sentence.> accessed 8 june 2020. 144 bbc, ‘george floyd death: trump threatens to send in army to end unrest’ bbc news (2 june 2020) <https://www.bbc.com/news/world-us-canada-52886736> accessed 8 june 2020. 145 cf cavin robinson (n 52). 146 shuan king, ‘king: how the 13th amendment didn’t really abolish slavery, but let it live on in u.s. prisons’ new york daily news (21 september 2016) <https://www.nydailynews.com/news/national/ king-13th-amendment-didn-abolish-slavery-article-1.2801218> accessed 8 june 2020. 147 rob picheta & henrik petterson, ‘american police shoot, kill and imprison more people than other developed countries. here’s the data’ cnn (8 june 2020) <https://edition.cnn.com/2020/06/08/ us/us-police-floyd-protests-country-comparisons-intl/#:~:text=the%20us%20has%20the%20 largest,populations%20around%20the%20world%20annually.> accessed 8 june 2020. systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 246 assistance of a huge annual prison budget of $182 billion,148 more than the annual budgets of many countries. sometime in the 80’s when american prisons became overcrowded, the government started to outsource prison management to private entities, which have today grown to become multibillion corporations with their stocks quoted on the new york stock exchange. two such successful corporations are corecivic (formerly the corrections corporation of america),149 and geo group150 with more than $3.7 billion and $4.3 billion of total worth, respectively. to satisfy a few of the rationale behind imprisonment, such as ‘reformation’ and ‘rehabilitation’,151 prisoners, whether in state and federal-run prisons or in their privaterun counterparts must perform some menial tasks for little or no pay. the thirteenth amendment in 1865 abolished slavery; although it exempted ‘involuntary servitude’ in the context of punishment.152 its drafters, perhaps, did not envisage that prisons will today be run by profit-making corporations. thus, in its ideal sense, the thirteenth amendment is partially defeated because the progenies of those who opposed the amendment during the time it was deliberated in congress can continue to realize their ancestors’ aspiration of enslaving black people, if only they can trigger the ‘punishment clause’ in the amendment to functionally achieve the ‘involuntary servitude’ of black bodies.153 today in america, black people are six times more likely to be incarcerated than white people.154 viewed from the lens of ‘shareholder primacy’,155 corporations operate for the foremost purpose of making profits for their shareholders, and it is common knowledge that the private prisons in america quote enormous revenues and profits, and much of their revenue comes from the use of unpaid or underpaid prison labor under the guise of ‘reformation and rehabilitations’ of the prisoners.156 the uncomfortable issue here is that these prison corporations are paid by the american governments based on the number of inmates they harbor and manage. in other words, the more inmates a prison harbors, and 148 peter wagner & bernadette rabuy, ‘following the money of mass incarceration’ prison policy initiative (25 january 2017) <https://www.prisonpolicy.org/reports/money.html> accessed 8 june 2020. 149 corecivic, <https://www.corecivic.com/> 150 geo group inc., <https://www.geogroup.com/> 151 chris weaver & will purcell, ‘the prison industrial complex: a modern justification for african enslavement?’ (1998) 41 howard law journal 349, 349-50. 152 ibid. 153 kamal ghali, ‘no slavery except as a punishment for crime: the punishment clause and sexual slavery’ (2008) 55 ucla law review 607, 608 <https://www.uclalawreview.org/pdf/55-3-2.pdf> accessed 8 june 2020. 154 bruce drake, ‘incarceration gap widens between whites and blacks’ pew research center (3 september 2013) <https://www.pewresearch.org/fact-tank/2013/09/06/incarceration-gap-between-whitesand-blacks-widens/> accessed 8 june 2020. 155 julian velasco, ‘shareholder ownership and primacy’ (2010) university of illinois law review 897, 944. <https://scholarship.law.nd.edu/law_faculty_scholarship/319> 156 whitney benns, ‘american slavery, reinvented’ the atlantic (21 september 2015) <https://www. theatlantic.com/business/archive/2015/09/prison-labor-in-america/406177/> accessed 8 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 247 the longer those inmates stay in the prisons, the more revenue that is guaranteed. from the profit perspective, this presumably triggers the competitive race for the mass acquisition of prisoners, perhaps, through some police-agents.157 in fact, for prison owners, long term prisoners functionally act as long term retainer-ship contracts with the governments, which enable them to reasonably forecast their revenues over a long period of time, thus making them attractive to potential credit or equity investors. toward sustaining their regular stream of income from the governments, and also grow their corporate stocks, the ideal and most sought-after candidates for imprisonment are therefore young black men accused of murder, rape, and other crimes with long term sentences. viewed from the profiteering lens, this perhaps explains why private prison corporations oppose death penalty, and financially contribute to the election campaigns of political candidates who will perpetuate their narrow interests, because for them, a goose is worth more alive than dead.158 this motive fundamentally differs from that of human rights activists seeking to abolish the death penalty on a prolife and ethical bases. this could further explain the numerous instances black people were wrongfully accused by the police for rape and murder, but later through whistleblowing efforts, it was discovered that the police had exonerating pieces of evidence ab initio, but refused to make it available to the defense counsel.159 it appears that there is always the business question of where a sufficient number of prisoners will come from in order to sustain the income and profits of prison owners in america? this question is similar to the one asked in the 15th century when america was newly ‘discovered’ and there was the business question of where to obtain free or cheap labor to cultivate sugarcane and cottons on its vast expanse of land? the answer was found in looting young black people from africa,160 just like the current generation of young black people in america are being looted from their homes and streets into white owned prisons as money-making stocks. functionally, there is a close resemblance between the involuntary servitude of black people for the plantation owners before the thirteenth amendment and the involuntary servitude of black people for prison owners in the post thirteenth amendment era, and just like slave plantations were outlawed, a similar approach is required to address their reincarnates – the american prisons. further, in comparison, just like there was a chain of middlemen in the slave trade era starting with the arrest and brutality of black people in their homes and streets in africa, to handcuffing them in chains and shipping them off to america where they became money-making stocks in the plantations, so also in the post thirteenth amendment 157 joseph goldstein & ashley southall, ‘‘i got tired of hunting black and hispanic people’ new york times (9 december 2019) <https://www.nytimes.com/2019/12/06/nyregion/nyc-police-subwayracial-profiling.html> accessed 6 june 2020. 158 scott soriano, ‘private prisons are california political players’ capitol weekly (7 september 2018) <https://capitolweekly.net/private-prisons-california-political-players/> accessed 7 june 2020. 159 cf central park five (n 78). 160 cf khalil muhammad (n 3). systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 248 era, there is a chain of middlemen, starting with the arrest and brutality of black people by the police, forcing them into police vehicles and beating or killing them for any little resistance, depositing them in police stations and functionally denying them bail due to high cash bonds, charging and obtaining long duration sentences through the aid of corrupt judges working for the common agenda, and finally incarcerating them in private prisons where they begin to make money for prison owners scrambling for a piece of the $182 billion annual prison budget.161 additionally, the involuntary labor of prisoners and their poor living conditions in order to save money out of the $36, 299.25 annually budgeted for each prisoner by the u.s. government,162 all help to swell corporate stocks.163 hypothetically, if the products emanating from this type of labor are exported, they stand to offend the tenets of the word trade organization which bans the use of prison labor to enhance export performance.164 3.2. do american police officials and judges benefit from the mass incarceration of black people in america? there have been attempts to investigate whether judges, police officers, and influential people in the american justice system own stocks in prison and bail bond corporations.165 such efforts have always been frustrated with a lot of rules that make obtaining and publishing the list of individual shareholders in these corporations very difficult. for example, corecivic, registered in the state of maryland even though headquartered in tennessee, enjoys the former’s corporate law requirement that only a shareholder with 5% of stocks (about $200 million in the case of corecivic) can request and peruse the list of shareholders. similarly, under the law of florida where geo group is registered, a shareholder is prohibited from distributing any information or record if the distribution differs from the purpose indicated during the time it was obtained from the corporation.166 there is a strong need to legislate against the possibility of judges, police officers, and key officers in the u.s. justice department, from directly or indirectly owning stocks in prison and bail corporations, and another legislation to make it possible for anyone to freely apply and obtain without delay, the list of shareholders of these corporations, as preliminary steps toward checkmating the corruption of the police and biases of judges vis-à-vis mass incarceration. 161 cf peter wagner & bernadette rabuy (n 148). 162 united states federal register, ‘annual determination of average cost of incarceration’ prison bureau (30 april 2018) <https://www.federalregister.gov/documents/2018/04/30/2018-09062/annualdetermination-of-average-cost-of-incarceration> accessed 20 october 2020. 163 joe fassler & claire brown, ‘prison food is making u.s. inmates disproportionately sick’ the atlantic (27 december 2017) <https://www.theatlantic.com/health/archive/2017/12/prison-food-sicknessamerica/549179/>; tim requarth, ‘how private equity is turning public prisons into big profits’ the nation (30 april 2019) <https://www.thenation.com/article/archive/prison-privatization-private-equityhig/>accessed 9 june 2020. 164 article xx(e) gatt <https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf> 165 gillian white, ‘who really makes money off of bail bonds?’ the atlantic (12 may 2017) <https:// www.theatlantic.com/business/archive/2017/05/bail-bonds/526542/> accessed 9 june 2020. 166 alex friedmann, ‘who owns private prison stocks’ prison legal news (31 july 2015) <https:// www.prisonlegalnews.org/news/2015/jul/31/who-owns-private-prison-stock/> accessed 8 june 2020. williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 249 if the american government is truly interested in ending the unjust and mass incarceration of black people, it should encourage investigations and publication of findings on the allegations of judges and police officers receiving bribes from prison ceos and controlling shareholders as compensation for bringing them large numbers of inmates. alternatively, the private provision of bail and prison services should be abolished in america as one of the meaningful steps toward achieving the full effects of the thirteenth amendment for black people, and a true therapy that will heal the open wound of slavery, by replacing hate with love and understanding amongst the races in america. 4. the metaphor of violence 4.1. america’s strong economy was partially built upon violence and loots as already hinted above, the ‘discovery of america’ in the 15th century was followed by the looting of black people from africa as slaves to work without pay and enough rest in the plantations of slave owners. africa’s human and natural resources were looted and ferried to america for 400 years to develop the latter’s economy. of course, it is needless to emphasize that slavery was violent in nature, starting from the brutal arrests, bounding in chains, being packed like sardines in the tight cabins of slave ships, the raping and murdering of some captives, and a series of other nonchronicled criminal violence on black people throughout the long and tortuous journeys to america.167 the violence and torture were so severe and unbearable that some of the slaves jumped into the atlantic ocean as a better alternative to what they were enduring on the ships.168 the slave market boomed because there were white american buyers waiting for the slave-stocks to arrive for onward use in their plantations. black people became involuntary wealth creators that funded the rich and stupendous lifestyles of white americans. in the post slavery era, after the world had become a bit better organized with human rights such as those contained in the universal declaration of human rights, united nations charter, etc., america continued to hunt for resources abroad through neo colonization techniques169 and a direct use of violence to loot resources.170 its main targets appear to be countries with rich crude oil resources, and this could explain why after the 9/11 incident wherein 15 out of the 19 terrorists involved came from saudi arabia, george bush jnr, against professional advice of the united nations, started a war with iraq instead of saudi arabia, under the pretext that saddam hussein among other charges of crime against humanity, also harbored weapons of mass destruction. in truth, there was no reasonable evidence to support this proposition other than being the u.s 167 cf us history (n 6). 168 michale marriot, ‘remembrance of slave ancestors lost to the sea’ new york times (19 june 1994) <https://www.nytimes.com/1994/06/19/nyregion/remembrance-of-slave-ancestors-lost-to-the-sea. html> accessed 9 june 2020. 169 cf (n 35). 170 cf eric bonds (n 57). systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 250 tactic in triggering article 51 of the un charter.171 the motive for taking war to iraq has sufficiently been linked by researchers to iraqi’s rich crude oil resources.172 a similar motivation underscored the war in afghanistan,173 and the killing of maummar gaddafi in libya,174 all of which have left these countries worse off following the reduction of their cities to rubbles with american boots and bombs. in order to legitimize the loots and violence, the leaders of these countries were accused of being dictators and america claimed it was embarking on humanitarian missions to save the people from their despotic leaders. yet, in africa, asia, and middle east, there are many countries with dictators but with no crude oil resources which did not attract america’s empathy and military intervention. north korea is governed by a dictator and has repeatedly threatened to nuke america,175 but no war was started with them toward removing the alleged weapons of mass destruction, perhaps, due to its lack of crude oil resources. 4.2. the lack of majoritarian criticisms of america’s violence and loots within america, the government continues to make money from the taxes of private prisons and bail bond corporations, and their oil-corporate citizens it has installed abroad to embezzle energy resources. none of the forgoing acts of violence and plundering by the american government has received serious majoritarian condemnation or visible white protests on the streets to stop foreign and domestic violence and loots. this is presumably because a significant percentage of the wealth obtained from these loots are owned by white americans,176 who are more interested in protecting their wealth and the sources they come from at the expense of human rights. this deafening silence invariably endorses and approves of the loots and other related acts of the american government. therefore, when black people protest on the streets for the racist injustices they suffer, and consequently receive labels from white supremacists as being violent thugs and looters, it is submitted here that majority of these accusers are not truly opposed to violence, damage and theft of property given that their wealth is significantly built on such foundation. they oppose black protests maybe because the outcome affects or could affect their proprietary interests. it is further submitted that street protests have been effective for black people in america starting from the 1739 stonno rebellion to the civil rights movement in the 60’s, till date. this approach is therefore sufficiently tested, is effective, and a necessary 171 ibid. 172 ewen macaskill & julian borger ‘iraq war was illegal and breached un charter, says annan’ the guardian (16 september 2004) <https://www.theguardian.com/world/2004/sep/16/iraq.iraq> accessed 9 june 2020. 173 cf rod nordland, et al, (n 58). 174 cf christopher davidson (n 59). 175 merit kennedy, ‘amid breakdown in nuclear talks, north korea threatens u.s. with ‘christmas gift’’ npr (3 december 2019) <https://www.npr.org/2019/12/03/784380119/amid-breakdown-in-nucleartalks-north-korea-threatens-u-s-with-christmas-gift> accessed 8 june 2020. 176 cf chuck collins, et al, (n 37). williams c. iheme the age of human rights journal, 15 (december 2020) pp. 224-262 issn: 2340-9592 doi: 10.17561/tahrj.v15.5851 251 tool in the good faith pursuit of racial equality and justice in america: it should not be stopped regardless of the unsolicited lectures from white supremacists on how best to protest. 5. conclusion: the need for more protests? the paper concludes by reiterating that the black-letter law or rights have not worked well for black people in america because those who profit from the status quo continue to create systems that frustrate equal treatment and enjoyment of human rights. and in order to continue to profit from this unjust enrichment, the ‘black body’ has been made a metaphor for crime, violence, poverty and hate. in this era of internet and globalization, there is more hope for black people in america to reinvent the narrative and show the world these systemic ills and oppressions they suffer in abundance, as well as receive global empathy and solidarity as was exemplified by the global protests following george floyd’s death. this also means that if use of protests was effective toward achieving the thirteenth amendment and other important rights stemming from the civil rights movement in the non-digital era, then it has become more efficacious in the twenty-first century, wherein the prevalent use of smart phones enabled the world to eyewitness the horrific execution of george floyd by a former white police officer. it is highly disturbing that these atrocities are committed regularly, most times without punishment, and other times, with inadequate punishment of the wrongdoers, in a country that regularly praises itself as “[t]he guardians of freedom, preserving it for the benefit of the human race.”177 black people in america should continue to learn how best to pierce through the deceptive veils of politicians, especially candidates for congressional seats who try to appease their feelings only during elections but do not sincerely engage afterward in fulfilling the promises that will end racial inequalities, perhaps due to regulatory capture. for black people, a new model of politicking that does not rest strictly on political party affiliations, but on credible individuals who have sufficiently shown commitment to end the racial discrimination and police brutality of black people in america. lastly, history teaches that true freedom is not given on a platter; it is fought for with sweat and blood, and the black people in america are perhaps the most experienced freedom fighters in the world. the protests in the aftermath of george floyd’s death had already yielded some positive reforms and continue to inspire more reforms. therefore, irrespective of any discouraging voices ‘to take it easy,’ simply because they are profiting from the status quo, it is hoped that more protests would be undertaken to achieve sustainable reforms that address police brutality, bail, and private prison systems, which until now have motivated and ensured the mass incarceration of black people in america. evidently, the positive outcomes from the protests and resistance against oppression and 177 andrew jackson, ‘farewell address of 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from breonna taylor’s shooting death released: “somebody kicked in the door and shot my girlfriend’ cbs news (29 may 2020) <https://www.cbsnews.com/news/breonna-taylor-kenneth-walker-911-callpolice-shooting/> wesley lowery, ‘more whites killed by police, but blacks 2.5 times more likely to be killed’ chicago tribune (11 july 2016) <https://www.chicagotribune.com/ nation-world/ct-police-shootings-race-20160711-story.html> whitney benns, ‘american slavery, reinvented’ the atlantic (21 september 2015) <https://www.theatlantic.com/business/archive/2015/09/prison-labor-inamerica/406177/> received: july 3rd 2020 accepted: october 16th 2020 articles williams c. iheme systemic racism, police brutality of black people, and the use of violence in quelling peaceful protests in america 1. introduction: slave trade as the entry point of systemic racism 1.1. the central claims 1.2. the primary aim of the research 1.3. the research questions, methodology, and the preliminary treatment of issues 2. the metaphors underlining black bodies in america 2.1. the metaphor of oppression: police brutality of black people and the silent endorsement by white supremacists in america 2.2. support from fellow police officers and other police-connected departments 2.3. support from the mainstream media 2.4. support from white supremacists 2.5. a few illustrative cases of police brutality against black people in america between 1991 2020 2.5.1. rodney king (1991) 2.5.2. amadou diallo (1999) 2.5.3. sean bell (2006) 2.5.4. oscar grant (2009) 2.5.5. eric garner (2014) 2.5.6. michael brown (2014) 2.5.7. antwon rose (2018) 2.5.8. george floyd (2020) 3. the metaphor of hate: private prisons, money bail, and profiteering mass incarceration of black bodies 3.1. reexamining the thirteenth amendment from a functional approach: the slave plantations reincarnated as the american prisons 3.2. do american police officials and judges benefit from the mass incarceration of black people in america? 4. the metaphor of violence 4.1. america’s strong economy was partially built upon violence and loots 4.2. the lack of majoritarian criticisms of america’s violence and loots 5. conclusion: the need for more protests? references a peculiar leap in the protection of asylum seekers: the inter-american court of human rights’ jurisprudence on the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 31 a peculiar leap in the protection of asylum seekers: the inter-american court of human rights’ jurisprudence on the protection of asylum seekers esraa adnan fangary1 abstract: this article pursues to clarify the crucial contribution of the inter-american court of human rights to protect the rights of refugees and asylum seekers. it debates that the court has instituted its renewed jurisprudence in the sphere of refuge throughout its case-law and advisory opinions associated with the safeguard of refugees, specifically the court's direction towards affirming on the extended principles affiliating to asylum. the inter-american court went further than its european counterpart in interpreting regional and international asylum law. however, the actual protection of asylum seekers promoted by the court is established on some controversial concepts like jus cogens norms and obligations egra omnes. furthermore, the court has an unclear vision concerning asylum and refuge. this may, therefore, curb the impact of a stronger human rights-based approach to the protection of asylum seekers in latin america. keywords: inter-american court of human rights, latin america, refugees, asylum seekers, nonrefoulement, detention. summary: 1. introduction. 2. establishment of the iacthr’s jurisprudence on the protection of refugees and asylum seekers. 2.1. the iacthr’s legal framework in the context of the right of asylum. 2.2. other regional subsidiary declarations in (moyen auxiliaire). 2.3. the judicial and advisory jurisdiction on asylum. 3. the right to seek and receive asylum in americas. 3.1. asylum is a human right with two distinct legal obligations. 3.2. the margin of state discretion and asylum. 3.3. comparing the iacthr’s jurisprudence on the right to seek and receive asylum with its european counterpart. 4. “well-founded fear” contra the refoulement. 4.1. the extraterritorial effect of non-refoulement obligation in the ecthr’s jurisprudence. 4.2. the absolute nature of non-refoulement obligation in light of the future convention on crimes against humanity. 4.3. non-refoulement and positive obligations. 5. the importance of the iacthr’s decision in vélez loor v. panama case in coronavirus era. 5.1. using the magic of jus cogens on non-discrimination principle to boost the protection of migrants and refugees. 5.2. a broader protection from broader provisional measures. 6. subconscious bias led to an inconsistent tenet: controversial points in the iacthr’s jurisprudence. 6.1. jus cogens and obligations egra omnes in the framework of refugees’ protection. 6.2. the conceptual incongruity in iacthr’s jurisprudence. 7. conclusions 1. introduction latin america’s asylum seekers face uncountable troubles in seeking a better haven. regardless of the consistently increasing number of refugees flows (iom 2018, 1 lecturer of public international law south valley university, faculty of law. ph.d. visiting researcher at umkc school of law (eaf8d2@umkc.edu). i would like to thank professor timothy lynch for helpful suggestions and discussions. this research would not have been possible without his constructive comments, continuous encouragement and guidance. i would like to thank all umkc staff members especially professor tom nanney for giving me an excellent environment and motivation for intellectual growth. a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 32 78-80), the inter-american court of human rights (“the court” or “the iacthr”) has to particularly ensure their rights as humans. on the occasion of the 40th anniversary of the american convention on human rights (achr), the court states: “the court has brought attention to acon nd protected persons and groups in situations of vulnerability that have historically been neglected. the court has established standards of particular relevance for the protection of the rights of children and adolescents; the rights of women; the rights of elderly persons; the rights of indigenous people and tribes; the rights of people with disabilities; the rights of afro-descendants and the rights of lgbti people. there is also comprehensive inter-american jurisprudence in favor of migrants, refugees, asylum seekers, persons deprived of their liberty, forcibly displaced people, human rights defenders, journalists and people in poverty….” (iacthr 2018, 7-8). the iacthr’s proactive position has not pertained to a specific vulnerable category only; as its sphere of competence has extended interestingly to the protection of refugees, asylum seekers, and irregular migrants (pasqualucci 2013, 8). consequently, the court’s doctrine has incorporated a decisive approach to protect refugees through the rights’ advocacy stipulated in its regional basic documents (oas 2009a). and the international customary law. it becomes evident, after the court’s precedents, that the court stressed the obligations of non-refoulement, non-discrimination in the context of protecting asylum seekers (yundt 1989, 201-218). expressly in the case of the pacheco tineo v. bolivia (2013), the court has adopted the pro persona approach to fortify the intrinsic rights of refugees and asylum seekers and other propinquities. this article illustrates the capability of the iacthr to crystalize the asylum and embalm a wide-range of elementary rights for those impotent people in latin america. it is noticeable that there is a positive tendency from the part of the court obviously declared in its latter’s advisory opinion oc-25/18 (2018), in which the court has underscored that even if diplomatic asylum is not included in the achr nor the american declaration of the rights and duties of man (adrdm), but state parties must abstain from return the individual to a territory where there might be a danger or risk on his/her life or liberty. nevertheless, there is still ambiguity in the court’s vision about the state’s adherence when there is a violation for the granted diplomatic asylum. in light of the above, this article endeavors to assess and explain the contribution of the court to the protection of asylum seekers’ and refugees’ rights in latin america (phillips, 2014). it aims to explore whether the iacthr is capable of promoting international protection and whether this protection matches with the de facto practices. moreover, moreover, compared to the european court of human rights (ecthr), it shows the scope of the rights and values adopted by the court and its stunning doctrine on refugees. therefore, the iacthr’s legal framework in the context of refugees’ protection will be discussed in the second section. the third section investigates favorably the esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 33 establishment of the iacthr’s jurisprudence on the right to seek and receive asylum. it is believed that the latin american states have a big impact on the court doctrine, this what the court named “latin american tradition of asylum”. the fourth section assesses if the court’s approach handles the recent states’ exercises of non-refoulement (marques 2017, 9), in accordance with its tenet about jus cogens, and obligations erga omnes. the fifth section illustrates the court’s expanded jurisprudence to ensure comprehensive protection of asylum seekers, such as the provisional measures that the iacthr issued in an already-decided case to provide with health care needed during the covid-19 pandemic. the sixth section reveals the inconsistency in the court jurisprudence like the overuse of jus cogens, despite the doctrinal controversy over the nature of these norms . (linderfalk 2016). besides, the court has fallen through the gap of confusion between asylum and refuge in its latter advisory opinion. eventually, the article concludes the novel features of the iacthr’s judicial protection of refugees and asylum seekers in latin america. 2. establishment of the iacthr’s jurisprudence on the protection of refugees and asylum seekers basically, the court not only considers requesting asylum as a human right derived from inter-american basic documents, but it also has fortified the right of asylum with the other regional and international conventions and declarations, specifically the un convention relating to the status of refugees 1951, its 1967 protocol. 2.1. the iacthr’s legal framework in the context of the right of asylum: on the one hand, inter-american human rights law consecrated the right to asylum and granted the international protection of persecuted persons. both the american declaration of rights and duties of man 1948 and the american convention on human rights 1968 have included the recognition of territorial asylum (oas, 2009b). article 27 of adrdm states that “ every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.” the same right reiterated in article22(7) of the achr; “every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued political offenses or related common crimes. ” the achr’s provision limits strictly the right of asylum for political offenses or related common crimes only; nonetheless, both articles refer to domestic and international law. asylum in latin america has been construed accordingly to historical treaties related to asylum as, international asylum law, international and regional human rights treaties (tibi v. ecuador, para 144). the court has wisely rationalized the type of crimes that enable the individual to seek asylum, it determined that a foreign state cannot grant ’direct a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 34 or indirect’ international protection to those accused of crimes against human rights (goiburú v. paraguay, para 232). 2.2. other regional subsidiary declarations in (moyen auxiliaire): although these declarations do not create a legal obligation, they could assist in crystallizing particular international customary law. with the miserable situation of central america from the 1970s, a lot of people requested international protection. for that aim, in november 1984, the colloquium on the international protection of refugees in latin america adopted the non-binding agreement “cartagena declaration on refugees”. the most prominent feature of that declaration is the recommendation to the refugee’s definition of the 1951 convention and the 1967 protocol, as it expanded the area of protection, comparatively with the achr and adrdm (fischel 2019). in 2004, latin american countries gathered in mexico on the occasion of the 20th anniversary of the cartagena declaration to set up a series of measures to identify sustainable and innovative solutions for refugees in the region. they proclaimed the mexico declaration and plan of action to strengthen the international protection of refugees in latin america (2005). furthermore, redressing in latin american asylum system, the countries of latin america and the caribbean adopted brazil declaration in 2014 to strengthen the international protection of refugees, displaced and stateless persons in latin america and the caribbean. that declaration has emphasized the court’s doctrine in promoting the protection of asylum seekers and refugees in the region (cintra and pureza 2020). 2.3. the judicial and advisory jurisdiction on asylum: the iacthr reinforced important benchmarks relating to the protection of refugees and asylees’ rights using its jurisdictional and consultative functions. its origins can be traced back to the first asylum ruling in the case of pacheco tineo family v. bolivia (2013), which refers to expel pacheco and his family from bolivia to peru as a consequence of rejecting their request for recognition of refugee status in bolivia. it is alleged that the rejection practiced in a summary manner violating various due process guarantees, following with the deportation to peru. the court declared that bolivia committed fatal prima facia violations, especially for the right to seek and be granted asylum (article 22.7), non-refoulement obligations (article 22.8), rights of the family and the child (articles 19 and 17), and right to judicial protection(article 25) of the achr (unhcr 2013). it is necessary to note that the court has emphasized that refugees and asylum seekers are vulnerable to entitle to their rights. as a result, they are eligible for comprehensive protection; for instance, the court mentioned that in the case of dorzema v. the dominican republic (2012, para 159) relating due process, the case of vélez loor v. panama (2010, paras 170-171) relating to non-discrimination and detention, and the case of wong ho wing v. peru ( 2015, para 127) relating to non-refoulement and expulsion. this judicial tenet on refugees’ protection has been principally matured through its advisory functioning. esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 35 in 2018, significant progress has been achieved by the court in embalming the right to asylum, when ecuador requested the court for an advisory opinion (submitted in 2016) about various aspects of asylum institution with a special emphasis on diplomatic asylum and the attitude of third states towards the granted asylum, as a political ground of asylum granted to julian assange in its london embassy. the court issued the advisory opinion oc-25/18 “the institution of asylum and its recognition as a human right in the inter-american system of protection”. although the court refused to answer for all questions, especially for questions referred to states that are not members of the oas (oc-25/18, para 19), the court concluded that asylum is a human right. moreover, it is compulsory to the member states to ensure seeking and receiving territorial asylum in the context of international corpus juris on asylum, and it stressed that non-refoulement is a peremptory norm, so it is a non-derogable obligation (oc-25/18, paras 98-99). the court has already issued additional advisory opinions in which it included particular protection for asylum seekers, like the advisory opinion (ao) 18/03, addressing the recognition of undocumented migrant workers. the court has expanded the right to work under the principle of non-discriminationto all, irrespective of his/her regular or irregular migratory status (oc-18/03, paras 133-134). similarly, the advisory opinion (ao) 21/14 on the rights and guarantees of children in the context of migration and/or in need of international protection. this latter one has been issued on the determination of state obligations on child migrants’ rights under the achr, the adrdm and the inter-american convention to prevent and punish torture. the court has cited the crucial aspect of protecting refugee child and family unity, stressing the principle of the best interests of the child (oc-21/14, para 272). 3. the right to seek and receive asylum in americas: the iacthr has defined asylum in general that the international protection offered by a state to persons forced to flee their country of nationality or habitual residence (oc-25/18, para 65). the court categorized asylum into two modalities according to the place where asylum is granted; first: territorial asylum which is provided in the state territory for persons who are persecuted for political reasons or other related ordinary crimes; second: diplomatic asylum which is provided for persons for the same foregoing reasons but in state’s legations, warships, military aircraft, and camps. effectively, the court expands the definition of asylum in accordance with international and regional instruments (oc-21/14, para 67). the court interpreted the right to seek and receive asylum under article22.7 of the achr and article27 of adrdm is so-called latin american tradition of asylum (oc21/14, para 96) that refers to territorial and diplomatic asylum provided to persons persecuted for political crimes, for a political purpose, typically pertaining to the non-extradition clause for political offenses. the court deemed, regardless of the confusion between political asylum and diplomatic asylum, without any de facto prejudice of latin american states practices, the diplomatic asylum is not a particular or regional customary law because of the absence of opinio juris and there is not a uniform situation in latin america on diplomatic asylum, and hence it is just a mere state’s prerogative (oc-21/14, para 93). a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 36 in regard to interpreting the latin american tradition of asylum under article22.7 of the achr and article27 of adrdm, the court expressly affirmed both the achr and adrdm include only territorial asylum, excluded diplomatic asylum . additionally, article14.1 of the universal declaration of human rights refers only to the territorial asylum and refugee status, not diplomatic asylum. therefore, the oas’s legal instruments are only for seeking and receiving asylum at the territory of the state, irrespective of political asylum or refugee status (ricke 2020, 351). the court has adopted the right to “seek and receive asylum” derived from the american declaration and the american convention, which contain broader obligations rather than the right to “seek and enjoy asylum” enshrined from article14.1 of the universal declaration. it asserted that the words “seek” and “receive” cannot be separated. it also stated that “the configuration of the law incorporates both components and it is therefore not permissible to adopt positions that seek to disintegrate their normative strength” (fuentes and vannelli 2019, 31). this vision deals with the inter-american regime of refugees’ protection, which conceptualizes asylum as twofold notions; the state’s right to grant asylum and the individual’s right to seek and receive asylum respectively. still, literature differentiates between the right to seek asylum and the right to receive as to separated concepts, each of them can be practiced independently. as a consequence of this hermeneutical direction, the asylum can be seen as the right to be grant and receive asylum, supporting their belief that there is no specific adjudicative body specialized in asylum and refugee issues to enforce asylum against the state (yildiz 2020, 315). in the advisory opinion oc-25/18, the court vaguely mentioned the difference between asylum and refuge, by its approval to opinion of the inter-american juridical committee on the relations between asylum and refuge. according to that opinion, the nuances between asylum and refuge vary for the time it was legitimated and the region applied in. for latin american, asylum relates to political issues, and it may grant diplomatic or territorial asylum, but refuge relating to the protection provided to the persecuted individual for racial, religious, social, sexual, affiliating to a social group or political opinion reasons, therefore, each system has its own features and specificities in procedures, application as well. it is argued that asylum, according to latin america tradition of asylum, is an initial compulsory phase before identifying refugee status. this can be proven when the court has instituted fundamental obligations on states to apply the right to seek and receive asylum, as it mentioned the potential to allow seeking asylum at first, then followed with the availability of due process for refugee status determination (oc-25/18, para 99). 3.1. asylum is a human right with two distinct legal obligations: generally speaking, asylum is not a rule of universal or particular customary international law (colombia v peru, p. 277 & 286 ). even the 1951 convention does not explicitly encompass the right of asylum as an apparent right, but it could be inferred from its context (pacheco v. bolivia, para 138). esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 37 actually, the court has frequently reiterated that diplomatic asylum is not an individual right, but pertained to the state’s sovereigntygranted virtue of its obligations upon diplomatic asylum conventions or by considerations to protect humanitarian issues on a case-by-case basis (oc-25/18, para 108). that result has been achieved after the court found that there is a discrepancy in practicing diplomatic asylum in osa member states, especially the usa which does not recognize diplomatic asylum (rogin 2012), particularly in the aftermath of julian assange’s case (värk 2012, p 249). however, the court stressed the compliance of the non-refoulement principle as jus cogens. (infra 4) typically, the court has assured that territorial asylum is a human right, and there is no legal obligation on the state to provide persons with protection. on the other hand, osa’s states have expressed their opinio juris (oc-25/18, para 162) to the accessibility of asylum through the ratifications on asylum instruments, and this approval was reconfirmed eventually at the declaration and plan of action of brazil in 2014. as a result, the court has set legal obligations for each “seek” and “receive” asylum independently (oc-25/18, para 98). therefore, the court has bounded the right to seek the non-refoulement principle which is inevitably unbleached (pacheco v. bolivia, para 139), and hence, states have to allow requesting asylum, either within its territory or when in anywhere or way under its jurisdiction, respecting principles of non-discrimination and equity. hence, the obligation to ensure requesting asylum has two main characteristicsas stated by the court extraterritorial and compulsory. besides, the third states may not refrain by actions or legalities asylum seekers to reach asylum procedures (oc-25/18, para 220). coherently, the right to receive asylum accomplishes when the asylum state grants international protection once the individual fulfills refugee status criteria either under the 1951 convention or the extended refugee status of the cartagena declaration (oc-25/18, para 123). this is not limited to the obligation to provide protection if the person meets refugee status of 1951 or cartagena declaration conditions, but also ensuring maintenance and continuity of the status (pacheco v. bolivia, paras 148-150) and interpreting the exclusion clauses restrictively. 3.2. the margin of state discretion and asylum: substantially, the right to seek and receive asylumunder article 22(7) of the achr and article27 of the adrdm is not absolute, it is executed according to domestic legislation and international conventions (pacheco v. bolivia, paras 137-140). in the context of the international aspect, the court cited that member states can broaden the extent of protection. on the contrary, they cannot restrict it beyond the minimum standards instituted by the regional and international asylum rules. furthermore, the interpretation of international conventions may not limit the right further what is settled in the convention itself (oc-25/18, para 140). as for the aspect of “in accordance with the law of each state” (art 22(7) of the achr & art 27 of the adrdm), the court grants the state parties a discretionary power to a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 38 decide the proper approach to exercise the right (oc-7/86, paras 13, 24 and 28). therefore, the expression of “in accordance with the law of each state” means that the state has a margin of appreciation to carry out duly core procedures referring to respect and guarantee for the right of asylum. moreover, those states do not yet integrate domestic asylum legislation nor members to other international treaties involving obligations on asylum have to adopt urgent measures to guarantee seeking and receiving asylum (oc-25/18, para 141). the iacthr widely allowed the states to domestically implement the right to seek and receive territorial asylum as their will (oc-25/18, para 121). however, the court prevented member states to extradite the person accused of a political offense, pursuant to article 4(4) of the inter-american convention on extradition (art.4(4) of the interamerican convention on extradition). the court also affirmed that the prohibition of extradition cannot be used as a mean to encourage or ensure impunity in serious human rights violations cases (oc-18/03, para 211). in contrast, the court has accorded state parties an extensive discretionary power to provide protection in case of diplomatic asylum, considering that incorporated to the state’s sovereign power and state prerogative (oc-25/18, paras 155-163). conservatively to pro homine principle, the court noted that diplomatic asylum is a humanitarian action for the purpose of protecting fundamental human rights to save lives, so that issue should be taking into consideration during the case assessment (oc-25/18, paras 103-108). 3.3. comparing the iacthr’s jurisprudence on the right to seek and receive asylum with its european counterpart: there are several distinctions between the right of asylum in the americas and the european region. firstly, a clear difference is that the inter-american system includes a human right to asylum, while the european convention of human rights does not (ilias and ahmed v. hungary, para 125). secondly, according to the iacthr, the right to be granted asylum obligates states to grant asylum to the individual who meets refugee status criteria and to his/her family members (oc-25/18, para 123). this differs from refugee law in the european union, which does provide family members of the refugee with protection but does not oblige states to grant them refugee status formally (arts 23, 24(1) of directive 2011/95/eu). thirdly, refugee status in the americas has extraterritorial effect (oc-25/18, para 123), the inter-american court mentioned ” if the applicant of refugee status according to one state party enters another state party in the oas and applies for asylum there, the authorities of that state has to “guarantee a duty of special care in the verification of [refugee] status”(pacheco v. bolivia, para 159). on the contrary, recognized refugees in one of the member states of the eu would usually be deemed inadmissible by their subsequent application for asylum in another member state (art 33 of directive 2013/32/eu). the novelty of the right to seek asylum, as compared to the european system, is that the inter-american court clearly indicates that ‘“states [party to the oas] may not take action to prevent persons in need of international protection from seeking protection in other territories” (oc-25/18, para 122). as for the european counterpart, it should be esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 39 recalled that through the eu trust fund for africa, the eu provides financial assistance to libya to improve its border control capabilities in order to deter people from reaching the eu borders. this practice recently challenged before the court of auditors. 4. “well-founded fear” contra the refoulement: while confirming that there is no obligation over the state to grant asylum, the relevant iacthr’s case law and advisory opinions have established certain constrains to curb the discretionary power of a state to accept or remove asylees. as known, the non-refoulement principle is well-established internationally as a cornerstone of asylum seekers protection, but the court made a clear obligation over the state parties and not just a principle but a peremptory norm of human right. the court did so believing that state sovereignty must be counterweighted by jus cogens (oc-25/18, paras 98 & 181). the codification of non-refoulement is traditionally and internationally proved hard; mainly the provisions are regulated in article22(8) of the achr, and art. 13(4) of the inter-american convention to prevent and punish torture, and art. 33(1) of the 1951 refugee status convention. however, the court went further those legal instruments evidentially in the following enterprising approaches (oc-25/18, para 190). firstly, in pacheco tineo family’s case, the court expands the ambit of nonrefoulement for all aliens regardless his/her situation, stating “…..the right of any alien, and not only refugees or asylees, to non-refoulement is recognized, when his life, integrity and/or freedom are in danger of being violated, whatsoever his legal status or migratory situation…”(pacheco v. bolivia, para 135). secondly, considering non-refoulement not only a customary rule of international law (oc-21/14, para 211), but also a jus cogens which means it is a non-breached, nonderogable, absolute, and peremptory norm, so states should abstain from any act that in any case directly or indirectly makes situations of de jure or de facto refoulement (oc-21/14, para 225). thirdly, non-refoulement is not exclusive to asylum only, but also it is a guarantee for all human rights (.oc-21/14, paras 211227). finally, the court has consolidated non-refoulement with other erga omnes rights as the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, to ensure that the stats will not expel, deport, return, extradite or remove a person to a state where he will confront a well-founded fear or danger (wong v. peru, para127). as reiterated by iacthr, in (oc-25/18, paras 172-173), that non-refoulement principle, other than the right of asylum, has an extraterritorial application as a fence against recentdirect or indirectstates’ practices (oc-25/18, para 193) which prevent asylees to access the asylum procedures. however, the diplomatic asylum is not included by the achr and adh, but the non-refoulement principle must be respected in the case of extraterritorial asylum provided that the states exercise their control and with its consent over those persons as legations (oc-25/18, para 188). in the sphere of the connection between asylum and non-refoulement, the iacthr deduced that non-refoulement is a reconceptualization of the right to seek and receive asylum (oc-25/18, para 179). while the same result is implicitly assumed by the a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 40 ecthr concerning the application expulsion or refoulement (soering v uk, paras 8891), the iacthr judges expanded their dialectics beyond article22(7, 8) of the achr. for instance, in the pacheco tineo’s case, the court considered that the connection of asylum-non-refoulement must be regarded as a specific modality of asylum (oc-25/18, para 179), providing protection for asylum seekers against the removal decisions where well-founded jeopardy subjected to torture or ill-treatment under regardless of their legal or migratory position (pacheco v. bolivia, para 152). however, conceptually recognized that there is a distinction between asylum and non-refoulement, goodwin and mcadam (2018, p 202) confirmed that the former relates to the admission of the foreigner to its territory, while the latter concerns a prohibition of expulsion or forcible return. some argued that asylum and non-refoulement are considered separate notions, but asylum can be extracted from the non-refoulement principle (edwards 2005, p.302). this paper is proponent to hathaway’s opinion that non-refoulement duty is tantamount to the right of asylum but in negative terms, based on the prohibition of non-entrée policy (hathaway and gammeltoft-hansen 2015, p 241). in other words, concerning asylum seekers, non-refoulement obligation integrates with the right to seek and grant refugee status (hathaway 2005, p. 301). 4.1. the extraterritorial effect of non-refoulement obligation in the ecthr’s jurisprudence: the concept of ‘jurisdiction’ for the iacthr does not vary from that of the ecthr: jurisdiction is defined outside the territory of the state when the person is subject to the authority or effective control, de iure or de facto, of the state (oc-25/18, para 188). the iacthr tends to presume that a person who enters a foreign state’s embassy to seek protection automatically falls under that state’s jurisdiction. however, it appears that, unlike the ecthr, the inter-american court does not require diplomatic agents to take particularly strong measures to find that they practice authority or effective control over individuals(oc-25/18, paras 94 &192). the ecthr concluded in m.n. and others v. belgium case (2020) that extraterritorial jurisdiction is only justified in exceptional circumstances. the claimants argued that the principle of non-refoulement laid down in article 3 of the european convention on human rights placed a positive obligation to be granted a humanitarian visas to allow them to apply for asylum in belgium later . this would, in their opinion, represent the only way to prevent any threat of inhuman or degrading treatment(m.n. case, paras 8-27). the ecthr stated that exceptional circumstances, which may justify the extraterritorial application of the non-refoulement obligation, are recognized only in cases where ‘effective control of an area outside its national territory (m.n case, para 104) or effective control over an individual when the state is exercising “power and physical control over persons”, usually in the form of force or physical control (m.n. case, para 105). the court recalled, with regard to the particular conduct of diplomatic officers, that extraterritorial jurisdiction can be created only if they use authority over their nationals or property (m.n. case, para 106). esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 41 4.2. the absolute nature of non-refoulement obligation in light of the future convention on crimes against humanity: the iacthr has noted in its advisory opinion oc-25/18 that the principle of nonrefoulement is essential not only to the right to asylum but also to the guarantee of other non-derogable human rights because it is a measure designed to preserve the right of life, freedom, and dignity of the individuals (m.n. case, para 180). the court’s tenet has reflected obviously on the proposed convention on crimes against humanity, particularly article 5 of the draft (ilc 2017b) which provides an absolute non-refoulement obligation for crimes against humanity. article 5 of the draft states: ‘1. no state shall expel, return (refouler), surrender or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity. 2. for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.’ in its commentary, the international law commission concluded (ilc 2017a) that it did not include an exception provision similar to article 33(2) of the convention relating to the status of refugees, since the adoption of the refugee convention in 1951, that clause had not been replicated in other international conventions. nevertheless, it is correct that the exception clause has not been adopted into international treaties, but that article 21(2) of the 2011 eu qualifications directive has more recently been reiterated. i argue that the commission insisted not to include such an exception clause to counter recent states practices which show an increased application and expansive interpretation of the anti-terror clause enshrined in art 33(2) of refugees convention, especially in aftermath of the september 11 attacks (jöbstl 2019). 4.3. non-refoulement and positive obligations: the court has explicitly rejected, since its first controversial case in velásquezrodríguez v. honduras(1988), the classical negative position that human rights only give rise to negative obligations to refrain from behaving in a manner that violates human rights. the court has instead interpreted achr as also giving rise to positive obligations requiring state intervention to actively protect against violations of human rights (lavrysen 2014, pp.96-97). with regard to the interpretation of the non-refoulement principle, the tenet of positive obligations, that requires states to deter human rights violations, even though the harm is caused by an action that is not due to them. two key positive obligations relating to non-refoulement have been recognized by the court; the duty to prevent irreparable harm and the obligation to cooperate (beduschi 2015, p 71). a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 42 the court required to prevent harm by private actors; the court emphasized, according to its advisory opinion on the juridical condition and rights of undocumented migrants(para 70), that fundamental rights must be protected by both public authorities and individuals with regard to other individuals. equally, the court has recalled the significance of a general obligation to cooperate in order to ensure that international obligations are upheld. in the case of providing protection from refoulement, the duty to cooperate includes, inter alia, the use of diplomatic channels to ensure a safe passage for the individuals concerned. 5. the importance of the iacthr’s decision in vélez loor v. panama case in coronavirus era: on may 26, 2020, the court has issued an important decision in the context of the covid-19 epidemic in the case of vélez loor v. panama (iacthr 2020b), which may have the potential to impact beyond the specific case analyzed by the court in relation to detention centers in panama, considering how the problems examined by the court also exist elsewhere. this potential regional impact, or even international, can take place by virtue of the interpretation given by the court in relation to analogous rights (santarelli 2020). the court’s resolution decided about urgent measures regarding the case of vélez loor v. panama, and thereby ordered panama to undertake a variety of new measures to protect immigration detainees during the disease outbreak. the court has indicated that it must defend and protect the right to health, among other human rights, like the right to life and to personal integrity, of individuals detained in migrant detention centers. therefore, the decision notes that panama must provide access to essential health care services to all individual detained in the ‘la peñita’ and ‘laja blanca’ centers, and that the early diagnosis and treatment of covid-19 must be included among these services (fachin and nowak, 2020). this is a crucial decision that, if implemented as expected by the state, can have an influence on the protection of the rights of migrants and refugees. unfortunately, the rights of those vulnerable groups are often neglected, and it is mandatory that supervisory entities remind the states of their obligations. international bodies have already indicated that monitoring and supervising state initiatives and measures in the covid-19 context are important. the united nations committee on the protection of the rights of all migrant workers and members of their families, and the special rapporteur on the human rights of migrants, for example, has statedthat it is necessary that states facilitate and promote monitoring of human rights and the collection of data by international organizations and other actors (unhcr 2020). 5.1. using the magic of jus cogens on non-discrimination principle to boost the protection of migrants and refugees: on the other hand, another important aspect of the above-mentioned resolution is the reminder that discrimination is prohibited -as a matter of peremptory law (jus cogens), none the less, as the court itself indicated in its previous jurisprudence, such as advisory opinions esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 43 oc-18/03 and oc-24/17 (2017). in addition, the court emphasized the significance of the non-discrimination obligation in the previous statement, entitled “covid-19 and human rights: the problems and challenges must be addressed from human rights perspective and with respect for international obligations”(iacthr 2020a). in which, the court stated, among others, that considering the nature of the pandemic, the economic, social, cultural and environmental rights have to be guaranteed, without any sort of discrimination, to every person under the state’s jurisdiction, in particular, to those groups that are excessively affected as they are in a vulnerable situation. the court also alerted the competent bodies or agencies to face and fight xenophobia, racism and other forms of discrimination, so that they have to undertake special measures to ensure that, during the pandemic, no one supports flare-ups of this nature with false news or incitements to violence. 5.2. a broader protection from broader provisional measures: in this regard, the extension of the scope of the provisional measures in the case of vélez loor v. panama was a controversial aspect of the iacthr procedure. in its resolution of 26 may 2020, the president of the court ordered very broad provisional measures after an already-decided case in the context of the pandemic, such as guaranteeing women’s sexual and reproductive rights and access to food and drinking water. it was not the first time that the court has behaved in this way (rivas 2020). in the case of durand and ugarte v. peru (lópez and salerno 2018), after this case finished, the iacthr has ordered some requests a lot of provisional measures. n on one occasion, the court conceded the measures and recognized that the requests were related to the subject-matter of the dispute. the urgent provisional measures in the vélez loor v. panama case, besides being necessary for the context of a pandemic, raise the importance of dialogue between the regional judicial system and national constitutional orders. the iacthr should act vigorously in anticipating the implications of some latin american governments’ decisions in exceptional circumstances, but carefully in the light of its current procedures in order to safeguard its institutional position (fachin and nowak 2020). 6. subconscious bias led to an inconsistent tenet: controversial points in the iacthr’s jurisprudence: the iacthr has certainly imposed a dynamic jurisprudence aiming to expand the protection of refugees and asylum seekers. nevertheless, there are controversial concepts used by the court like jus cogens and obligations egra omnes in the framework of refugees’ protection (6.1). furthermore, the court has an unclear vision concerning asylum and refuge (6.2). 6.1. jus cogens and obligations egra omnes in the framework of refugees’ protection: the iacthr has heavily reiterated those two concepts “jus cogens” and “egra omnes” regarding the protection of refugees and asylum seekers. it found the justification for the principle of non-refoulement (oc-25/18, para 95) concerning the protection of a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 44 refugees especially and for the principle of non-discrimination (ramírez v. guatemala, para 270) general – that they belong to the realm of jus cogens, which entails obligations erga omnes against third states (bind all states). -the legal argumentations of the non-refoulement principle as a jus cogens norm with obligations erga omnes: the question here, does non-refoulement need to be jus cogens to bind all states? would the concept of jus cogens make states abstain from exercising refoulement on the grounds of the asylum, better than duties derives from the binding refugee conventions? to answer these questions, iacthr’s claims must be analyzed as a proponent for jus cogens with obligations erga omnes, and the other opponent’s claim. before this, however, we have to recognize jus cogens and obligations erga omnes; a. the concepts of jus cogens and obligations erga omnes: jus cogens (ius cogens) literally means “compelling law”, and according to article 53 of the vienna convention on the law of treaties (vclt) jus cogens refer to a peremptory norm, elusive, non-derogable, accepted and recognized by the entire international community of states (hernandez 2013, 37). consequently, the states cannot violate peremptory norms, so any international or regional treaty conflicts with them are void. till now, there is no exhaustive list of jus cogens that has been issued officially, but it is generally accepted that genocide, slavery, maritime piracy, crimes against humanity…. etc (criddle and fox-decent 2009, 334). although the jus cogens can be frequently observed in the case law of international tribunals, there is an apparent lack of supportive evidence of these peremptory norms (criddle and fox-decent 2009, 332). regarding the iacthr, it seems that it has depended on natural law, it related equality and non-discrimination with human dignity that those in power may not ignore. the vague reliance on natural law, comparatively to the scant reliance on the de facto state practices, arguably affects negatively on the credibility of jus cogens, additionally, that would open the door for the arbitrary inclusion of other selected norms on the peremptory norms, pretending that it is will serve the international community interests (focarelli 2008, 440). moving to obligations erga omnes, its recognition was by icj determining that erga omnes means all states have a legal interest in the protection of basic human rights, including protection from slavery and discrimination….etc, that generates direct obligations towards the international community as a whole (barcelona traction case, para 34). the iacthr was not strict to the erga omnes character of the basic human rights, but also has exaggerated in considering the duty of cooperation among states, in promoting human rights, has an erga omnes nature (oc-25/18, para 199). the barcelona traction decision included the overlap between jus cogens and erga omnes obligations, providing that jus cogens norms would have erga omnes esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 45 obligations (para 34). the iacthr, as will be discussed later, cited that the principle of non-refoulement is considered a peremptory norm (oc-21/14, para 225), may impose extraterritorial obligations which are given the erga omnes nature (oc-25/18, para 107). regrettably, the iacthr did not attribute to clarify the ongoing debate around the vague relationship between the jus cogens and erga omnes norms (erika de wet 2013, 541–561). b. the controversial debate on the nature of the obligation of non-refoulement: the iacthr has deemed that the prohibition of refoulement is a peremptory norm of customary international law (jus cogens) with erga omnes nature, permeating the entire national and international legal system (oc-25/18, para 170). judge cançado (2018, 39) defended the overuse of jus cogens that those norms resist crimes committed by the states, instituting erga omnes obligations for human rights protection, in its vertical (engle 2009, 168) and horizontal ((knox 2008, p 165-173) dimensions. the court has relied on opinio juris existing in the cartagena, mexico declaration and plan of action 2004 and brazil declaration and plan of action 2014, which have explicitly incorporated the nonrefoulement as jus cogens. in fact, regarding non-refoulement is jus cogens is a matter of controversy, the recent scholarship separates into two distinct sides. elihu lauterpacht and daniel bethlehem (2003) argue that the non-rejection principle is not only an obligation of customary law, but it prohibits all states (hathaway 2010, 507). they ground their belief that non-refoulement justified jus cogens elements “states practices and opinio juris” (nicar. v. u.s, para 184). this paper agrees with hathaway’s (2010) refutations for the jus cogens proponents; firstly, he argued the there is no well-recognized acceptance from all states about particular categories or types of risk concerning non-refoulement. secondly, the opinio juris – owing to the non-common substantive accord is slightly veiled, and about the general assembly resolutions are not sufficient to constitute a full opinio juris. thirdly, the de facto exercises of the states undermine considering non-refoulement as a peremptory norm. some scholars strongly debate that jus cogens are non-derogable absolute rules, and there are fundamental exceptions for the non-refoulement principle pursuant to the 1951 refugees convention (farmer 2008, 22). bruin (2003, 26) argue that accepting non-refoulement as a peremptory norm that means states and international organizations cannot derogate from it, and it is actually will lead to irrational consequences. goodwingill (goodwin-gill et al, 2014) replied for the matter of non-refoulement exceptions that those could strengthen its peremptory nature. to be clear, considering non-refoulement as jus cogens on encounter with de facto states’ practicescould result in the content and scope of the obligation being hollowed out. relatively, states practices show inconsistent rhythm in support of this putative norm; for example the u.s asylum policy, the world’s largest recipient for asylum seekers, is against the principle of non-refoulement in the 1951 convention in aspects. starting a peculiar leap in the protection of asylum seekers the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 46 with the exercising of interception at sea, obviously seen in the case of haitians and cubans (costello and foster 2016) ending with the 2018 presidential proclamation and the department of justice and department of homeland security regulation (presidential proclamation 2018 reg. 55,934 and reg.57,661), both have barred asylum requests by migrants who entered the united states territory between ports of entry. this can be deduced from comments on the draft of the future conventions on crimes against humanity, when some states, such as the united states (u.s comments 2019) and the united kingdom (report of ilc 2017, para 3), have expressed their concern that draft article 5 represents a progressive development of international law and imposes a new mandatory feature on non-refoulement principle. replying to whose alleged that the states’ violations of non-refoulement will not affect jus cogens existence, we easily reply that one of the elements required to describe a duty of obligation as a peremptory rule to be accepted from the international community as a whole, so it does not even exist from the beginning. besides, we cannot uphold that nonrefoulement is an absolute duty, as it conflicts will the state immunity and its sovereignty (knuchel 2011, 153-174)) to protect itself against massive mixed fellows or terrorism for instance. basically, to describe the principle of non-refoulement as jus cogens is not the effective sufficient mean to ensure protection for refugees against expulsion, deportation, forcible rejection to the origin of persecution. how can we imagine that we derive the state will any authority to define who is safe to the existence of its land. there are long powerful arguments in this issue with different persuasive evidential claims, but we cannot see the domestic courts admit that jus cogens have any impact inside the country. the sale v. haitian centers council and regina v. immigration officer at prague airport and another, ex parte european roma rights centre and others are the best testimonial examples for circumventing attempts. the extreme penchant of the iacthr for pro hommnie principle has given way to the misapplication of jus cogens. unlike the court of ecthr which explained the obligations erga omnes effects clearly (belgium v. spain, para 33), the iacthr relies solely on jus cogens -unsupported by unquestionable evidencewhich weakens the recognition of these norms (trindade 2018, 40). the court ignores the erga omnes effects, it could describe non-refoulement as erga omnes obligation onlyrespect, ensure, and guarantee protection standards and the effective exercise of the rightsespecially after its affirmation that the provisions of the achr have erga omnes nature (oc-25/18, para 169). notably, if the jus cogens nature could be conferred on non-refoulement obligations, article22 (3) of achr and article33(2) of 1951 convention have to be modified to fit the absolute non-derogable nature of peremptory norms. after analyzing the above-mentioned debate, it’s proven that considering the principle of non-refoulement is an absolute peremptory norm (jus cogens) may constitute a rapid progressive development of the current non-refoulement obligation under refugee esraa adnan fangary the age of human rights journal, 16 (june 2021) pp. 31-53 issn: 2340-9592 doi: 10.17561/tahrj.v16.6134 47 and human rights law. secondly, while that absolute nature would enhance protection of individuals from deportation and expulsion, it does so in a somewhat arbitrary manner. 6.2. the conceptual incongruity in iacthr’s jurisprudence: in advisory opinion oc-25/18, the court has laid down some expressions linked to asylum that may cause confusion for a lot. however, the court has fallen into the discrepancy trap; hesitant about the definition of asylum. sometimes, it mentioned that asylum encompasses all the institutions associated with the protection granted to persons who fled of their country of nationality or habitual residence (territorial asylum, diplomatic asylum, political asylum, and refugee status), and other times realize that it could be from any other state (alien from asylum state) (oc-25/18, paras 65,66 and 101). however, there is another point of inaccuracy, after the court criticized that latin american asylum tradition caused terminological confusion, sometimes political asylum refers to diplomatic asylum (oc-25/18, paras 127-130), it has slipped on this fault. the court admitted that political asylum can be territorial and diplomatic, then the court mixed between political and diplomatic asylum; it used political asylum to refer for diplomatic. we can see that the court noted that “the united states of america does not recognize or subscribe to the doctrine of political asylum as part of international law”(oc-25/18, para 161), and the united states does not recognize diplomatic asylum (rogin 2012). in addition, the court suffers from inexactness one more time, when it has defined that the territorial and diplomatic asylum related to political reasons only, then it avoided this error by adopting the cartagena refugee definition to extend the definition of asylum institutions in general(territorial and diplomatic asylum) and for all reasons ( reasons of un refugee convention) (oc-25/18, paras 67 and 68). 7. conclusion this paper has illustrated that the iacthr has promoted a sustained approach of protection of asylum seekers’ and refugees’ rights in latin america. the iacthr has considered seeking-asylum persons in situations of vulnerability, therefore it has granted them an extraordinary context of protection through adopting pro homine principle against member states, applying its regional basic documents and international refugee law. its jurisprudence has evolved in line with its prominent advisory opinion oc25/18 issued in 2018, in which the court iterated its desire to consider non-refoulement not only a principle of international customary law, but it is a jus cogens norm with an extraterritorial application. through the proactive interpretation of international refugee protection, it has deposited minimum guarantees to protect the right to health and other fundamental rights like non-discrimination, equality, and human treatment. nonetheless, 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(2020). enduring practices in changing circumstances: a comparison of the european court of human rights and the inter-american court of human rights. temple international and comparative law journal, 34(2), pp.309–338. yundt, k., 1989. ‘the organization of american states and legal protection to political refugees in central america’, the international migration review, vol. 23, no. 2, pp. 1989. https://doi.org/10.2307/2546258 received: october 7th 2020 accepted: january 31st 2021 https://doi.org/10.2307/2546258 a peculiar leap in the protection of asylum seekers: the inter-american court of human rights’ juris abstract 1. introduction 2. establishment of the iacthr’s jurisprudence on the protection of refugees and asylum seekers 2.1. the iacthr’s legal framework in the context of the right of asylum 2.2. other regional subsidiary declarations in (moyen auxiliaire) 2.3. the judicial and advisory jurisdiction on asylum 3. the right to seek and receive asylum in americas 3.1. asylum is a human right with two distinct legal obligations 3.2. the margin of state discretion and asylum 3.3. comparing the iacthr’s jurisprudence on the right to seek and receive asylum with its european 4. “well-founded fear” contra the refoulement 4.1. the extraterritorial effect of non-refoulement obligation in the ecthr’s jurisprudence 4.2. the absolute nature of non-refoulement obligation in light of the future convention on crimes 4.3. non-refoulement and positive obligations 5. the importance of the iacthr’s decision in vélez loor v. panama case in coronavirus era 5.1. using the magic of jus cogens on non-discrimination principle to boost the protection of migra 5.2. a broader protection from broader provisional measures 6. subconscious bias led to an inconsistent tenet: controversial points in the iacthr’s jurispruden 6.1. jus cogens and obligations egra omnes in the framework of refugees’ protection a. the concepts of jus cogens and obligations erga omnes b. the controversial debate on the nature of the obligation of non-refoulement 6.2. the conceptual incongruity in iacthr’s jurisprudence 7. conclusion references restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 263 restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine kateryna nekit* abstract: the covid-19 pandemic has had a significant impact on human rights. many rights have been restricted to prevent the spread of infection. the restrictions on private property rights during the pandemic were not so obvious, but no less significant. the massive closure of restaurants, cafes, cinemas and other crowded places has resulted in significant losses for business owners. the question arose about the admissibility of such restrictions on the rights of owners, as well as the need to compensate for the losses caused. the purpose of this article is to study the criteria developed by international practice under which the restriction of property rights is allowed, and approaches to resolving issues of compensation for losses caused to owners when it is necessary to ensure a balance of private and public interests in ukraine. the article also analyzes approaches to resolving issues of compensation for losses caused to owners as a result of restrictions on their rights, developed in the case law of the united states and great britain. keywords: private property, human rights, pandemic covid-19, restrictions, compensation. summary: 1. introduction. 2. general remarks on the limits and restrictions of property rights. 3. the concept of property in the case law of the european court of human rights and the admissibility of interference in the peaceful possession of property. 4. regarding the possibility of compensating the owners for the losses incurred during the quarantine introduced because of the covid-19 pandemic. 4.1. resolving the issue of compensation for the seizure of private property in the us practice. 4.2. features of ensuring the protection of private property from state interference in british law. 4.3.the problem of payment of compensation to owners for losses incurred during quarantine in the ukrainian reality. 5. conclusions. 1. introduction. the absolute nature of the property right does not exclude the possibility of its restrictions, in case it is required by the interests of the state or society. the organic connection between property rights and its restrictions (the relationship between rule (freedom) and exceptions) is a key aspect of property relations as a legal institution capable of ensuring the effective development of a market economy (mattey & sukhanov, 1999). the possibility of restricting the right to private property in the interests of society is provided both at the international level – by the protocol № 1 to the european convention for the protection of human rights and fundamental freedoms of 1950 (hereinafter referred to as the convention) and nationally – by the constitution of ukraine (article 41). these regulations give rise to restrictive measures on owners' rights in response to the * phd, associate professor of civil law department of national university “odessa law academy”, odessa, ukraine, orcid: 0000-0002-3540-350x (katerinanekit@gmail.com) https://orcid.org/0000-0002-3540-350x katerinanekit@gmail.com restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 264 threat posed by the spread of the covid-19 pandemic. for example, during the pandemic and the quarantine imposed to prevent large crowds, numerous restaurants and cafes, shops and malls, entertainment venues and cinemas, were closed, public transport was banned, many flights were cancelled etc. it is obvious that such measures have resulted not only in a negative impact on the economy, but also in causing significant losses in the form of lost profits for the owners of such institutions, as well as their suppliers. such restrictive measures may be considered as an impact on property rights in accordance with art. 1 of protocol № 1 to the convention in the sense of expropriation, control over the use or interference with the peaceful possession of property. this is a manifestation of the imposition of restrictions in the public interest, as health measures are considered to serve a legitimate purpose (mcbride, 2020). however, the question arises as to in what cases and to what extent the right of private property may be restricted in the event of public danger and whether the owners have the right to proper compensation for the established restrictions. 2. general remarks on the limits and restrictions of property rights. the category of limits and restrictions in some sources is revealed through the concept of incentives in law. the positive vector of their influence is manifested in legal norms that encourage social relations necessary for society and the state (vedyakhin, 1992). incentives are provided through restrictions in the broadest sense of the word. restraining legal incentives can be considered as: 1) legal restrictions on illegal activities, that create conditions for subjects and public interests for protection and defense; 2) established by the law limits within which the subjects must act; 3) exceptions to certain opportunities in the activities of entities (porotikova, 2007). in the science of civil law, the question of the relationship between the concepts of restrictions and encumbrances in law, as well as the concepts of "restrictions" and "limits" of the exercise of subjective property rights remains debatable. quite often the concepts of limitations and boundaries are identified. in particular, professor k. pobedonostsev defined restrictions as a negative part of property rights, while he equated limits and restrictions in legal significance, form and consequences (pobedonostsev, 2003). s. scryabin noted that the restriction of property rights should be understood as the limits of the exercise of subjective property rights to an individually determined thing, based on certain prohibitions that were previously established by positive law or were related to the rights of others to the same thing (scryabin, 2006). the same position was held by professor d. meyer, who did not distinguish between the concepts of "restriction", "encumbrance" and "limits" of property rights (meyer, 2003). however, scholars often point to the need to distinguish between the concepts of restrictions and encumbrances on property rights. it is stated that restrictions are a framework that cannot be exceeded in the exercise of their subjective right, they are defined by law and are inherent in all civil rights, not only property rights (aguiar ribeiro do nascimento, 2018). at the same time, encumbrances are additional restrictions on the rights imposed on the owner or other holder of property rights in accordance with the kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 265 contract or a more specific article of law. thus, restrictions are always objective because they do not depend on the will of the owner or others, but are determined by law, while encumbrances are subjective because they depend on the lawful will of the subjects or the court (niyazova, 2016). regarding the correlation between limits and restrictions, it is also noted that limits can be defined as the delineation of the area in which the owner has full dominance over the property belonging to him, they determine the range of rights that the owner has. restrictions, on the contrary, to some extent oppress, restrain the owner (alexandrina, 2002). in turn, restrictions and encumbrances are defined as certain oppressions within the limits of the exercise of property rights. however, the difference between them is that encumbrances can be imposed on the property (such as easements), while restrictions are only certain encroachments on rights. although both restrictions and encumbrances on property rights have almost the same features: 1) established within the limits of the exercise of property rights; 2) associated with certain adverse conditions; 3) entail a reduction in the scope of the owner's capabilities in the exercise of his property rights; 4) aimed at protecting public relations (shvedkova, 2004). it seems appropriate to distinguish between the concepts of restrictions and encumbrances of property rights, based on whether such frameworks established for the owner in the exercise of his right is general and defined by the public interest (restriction), or is a special case determined by individual interest, based on special legal provisions or the will of the owner (encumbrance). 3. the concept of property in the case law of the european court of human rights and the admissibility of interference in the peaceful possession of property. in order to understand whether the owners, whose rights were restricted during the pandemic by depriving them of the opportunity to use their property in business, have the right to compensation, it is necessary to mention the meaning of "property" used today in the case law of the european court of human rights (hereinafter reffered to as ecthr). it is well known, that the protocol № 1 to the convention uses the term “possessions”, which in its essence is understood more broadly than the term “property”, which is used in ukrainian legislation. it has been repeatedly pointed out that the category "property" within the meaning of the protocol № 1 to the convention has "an autonomous meaning which does not depend on formal classifications in national law" (karnaukh, 2016). not only physical goods, but also some rights and interests that make up assets can also be considered as "property". in addition, the subject of protection may be not only existing property, but also the so-called "legitimate expectations". in particular, the court includes, in addition to movable and immovable property, property and non-property interests, such as claims and debts by court order, company shares and other financial instruments, business licenses, future income, intellectual property, real estate and residential leases, social benefits and pensions, professional clients, etc. (council of europe / european court of human rights, 2019). restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 266 thus, future income within the meaning given by the ecthr should also be considered a type of property, so depriving owners of the opportunity to receive income can to some extent be considered as confiscation of property. at the same time, in accordance with art. 41 of the constitution of ukraine, compulsory alienation of objects of private property can be used only as an exception for reasons of public necessity, on the basis and in the manner prescribed by law, and subject to prior and full reimbursement of their value. the logical question is whether such restrictions on the rights of owners were permissible during the quarantine, and whether the state should not compensate the owners for the income they lost as a result of the quarantine. to find an answer to this question, we will analyze the conditions under which state interference in the peaceful possession of property is allowed, as well as the conditions under which human rights, including property rights, may be restricted in extraordinary circumstances, including the covid-19 pandemic. in the practice of the ecthr, an approach has been developed, according to which there are three main conditions for state intervention in the peaceful possession of property. first, it is legality, i.e. it is verified whether such a measure is provided by national law. secondly, it is the pursuit of the public interest during the intervention. third, it is proportionality, i.e. ensuring a fair balance between the public interest and the interests of individuals suffering from such interference. criteria for assessing the validity of state intervention in the right of a person to peaceful possession of property, in accordance with the case law of the ecthr, are: 1) the object of legal protection should be qualified as property within the meaning of art. 1 of protocol № 1 to the convention; 2) types of intervention should be defined in the convention norm; 3) the existence of a legitimate purpose, taking into account the public interest; 4) the proportionality of such intervention and the existence of a fair balance between the requirements of the general interest of society and the requirements of protection of fundamental human rights; 5) compliance of such interference with the criterion of legal certainty or legality (in the absence of legitimate grounds for interference, it cannot meet the requirements of article 1 of protocol № 1 to the convention) (belyanevich, 2016). in addition to this approach developed over the years by the ecthr, the united nations guidelines for restricting human rights in the context of the covid-19 pandemic need to be taken into account. they stated that restrictions on rights are allowed under the following conditions: 1) legality the restriction must be introduced by law. this means that the restriction must be enshrined in the national law of general application in force at the time the restriction is applied. such a law should not be arbitrary or unreasonable, it should be clear and accessible to the public; kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 267 2) necessity restrictions must be necessary to protect one of the permissible grounds specified in the international covenant on civil and political rights, which includes health care, and must meet an urgent social need; 3) proportionality restrictions must be proportionate to the interests, i.e. they must correspond to the achievement of their protective function; and this should be the least intrusive option among those that can help achieve the desired result; 4) non-discrimination no restriction may discriminate, which is contrary to international human rights law (demir, 2017); 5) all restrictions should be interpreted directly and in favor of the relevant law. no restriction may be applied arbitrarily; 6) the government bears the burden of justifying restrictions on rights (united nations, 2020). thus, the restriction of the rights of owners, in particular by temporarily depriving them of the opportunity to use their property in business and receive income from its use, could be allowed only if all these requirements are met. 4. regarding the possibility of compensating the owners for the losses incurred during the quarantine introduced because of the covid-19 pandemic. 4.1. resolving the issue of compensation for the seizure of private property in the us practice. the prohibition of confiscation of private property without proper compensation is enshrined in the us law, where, under the fifth amendment, private property cannot be confiscated for public use without fair compensation. the purpose of such a provision is to deter the state from forcing individuals to carry public needs, which, based on the understanding of justice, should be borne by society as a whole (tager, white & hamilton, 2020). in american law, there are two cases of "seizure" of private property. the first case of seizure is, in fact, the physical seizure of property. when property is physically confiscated from a person, the state has a "categorical obligation" to reimburse the value of such property to the former owner. it does not matter whether such withdrawal was only partial or only temporary, nor does the reason for such withdrawal. the second case, which can be considered as the seizure of property from the owner is the establishment of a special procedure for regulating the use of property. in this case, in order to pay compensation, it is necessary to establish whether such regulation is so burdensome for the owner that it is practically equal to the seizure of property. to answer this question, the us supreme court has developed two tests. regulation can be seen as a seizure if it meets the "categorical test", namely when "all economic benefits" are excluded from the use of the property. however, more often the restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 268 regulation falls under the "ad-hoc test". in this situation, the court examines three aspects of the normative act to decide whether there is a "seizure" of property that requires fair compensation. first, the court considers the "economic impact" of this regulation in the form of a fraction, the numerator of which is the value deducted from the property, and the denominator is the value of the property not encumbered by the regulation. in this fraction the denominator is key; the courts determine it in accordance with the entire property interest in question, and not only in relation to the part burdened with regulation (i.e. the entire land plot where the house is located, and not only the part of the plot that is restricted in use). second, the court examines the extent to which a legal act impedes a reasonable “investment expectation” as to how a person can count on the use of his or her property. for example, a company that submits trade secret data to the regulator, knowing that the agency may disclose it publicly, has no reasonable expectation that the data will remain confidential. third, the court carefully examines the "nature" of this regulation. regulation, which can be equated with physical intrusion into property, will be interpreted as "seizure" rather than encumbering property as a result of a legislative scheme that "adjusts the benefits and burdens of economic life to promote the common good" (stiff, 2020). the so-called "rule of necessity" is also taken into account when deciding on compensation for the seizure of property. thus, the us supreme court recognizes that emergencies such as war may require "strict regulation of almost all resources" to prevent the inevitable loss of life or property. based on this, according to the "rule of necessity", if the state creates a fire station, destroying a person's house to save the homes of others, the state does not need to pay compensation to the owner whose property was sacrificed to the common good. some scholars have drawn an analogy between a pandemic and a state of war in their analysis of how to respond to the restrictions imposed by covid-19. therefore, it is important to address the issue of compensation to owners for losses incurred in connection with hostilities. this issue is ambiguous in the us case law. thus, in the case of united states v. central eureka mining, co, the court, citing the "war effect", refused to compensate private mine owners for closing them because workers at the mines were needed to work in the mines to extract the copper needed for hostilities. although the court recognized here the analogy of "seizure" of property, it noted that such restrictions, which led to losses on the part of private owners, were insignificant compared to the losses incurred by the whole society during the war (stiff, 2020). on the other hand, in some emergencies, the court does not deny the possibility of compensating owners for the seizure of property for public interest. for example, in the case of mitchell v. harmony, the court noted that the use of private property for public purposes is allowed, but subject to full compensation to the owner (stiff, 2020). thus, in military matters, the court has established two general rules: if the government destroys private property to avoid immediate loss of life or property, no seizure occurs and no compensation is paid. however, if the government confiscates property for emergency use, compensation is payable (stiff, 2020). kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 269 in the case of restrictions on the rights of owners in terms of the covid-19 pandemic, in american practice, in order to answer the question of whether compensation is payable, it is also necessary to determine whether this situation falls under the "rule of necessity". assuming that the "rule of necessity" goes beyond the military context, the court is likely to apply it only to pandemic response measures labeled "actual emergency, imminent danger and actual necessity". and even then, the "rule of necessity" is likely to justify only the destruction of property, not its appropriation, on a temporary or permanent basis, in order to respond to the pandemic. if the court finds the "rule of necessity" unsuitable, then the usual decision-making system is likely to apply. seizure of private property for public use is likely to require compensation. it is doubtful that the state can seize private stocks of medical supplies to respond to a pandemic without paying fair compensation to the property owner. therefore, if the state requires the use of private property to comply with quarantine or testing for covid-19, it will most likely have to pay the owner. however, if there is no physical seizure of property, pandemic responses will be considered in accordance with regulatory tests by the us supreme court. it is unlikely that the measures implemented in connection with covid-19 would satisfy the "categorical test" of the supreme court, depriving the property owner of "all" economic types from the use of property (in one case the supreme court suggested that the reduction in property value by even 95% was insufficient to pay compensation). therefore, it will be relevant for one of the most common responses to the pandemic the order of states and local governments to close private businesses to promote social distancing. the closure order deprives the property owner of the right to do business during the closure period, but the order is unlikely to lead to a complete loss of value because, as the court noted during the moratorium on property use, “the value of the property will be restored as soon as the ban is lifted. when a closure order allows a business to continue to operate in part (for example, to sell takeaway food), it can be said that the property owner retains use of the property during the temporary closure, thus reducing the chances of finding that the restrictions exclude "all" uses of property. however, the inconsistency of the situation with the "categorical test" does not preclude the possibility of compensation for the imposed restrictions. in this case, the “ad hoc test” of the supreme court is likely to be used. thus, some areas of business, such as a restaurant or a dentist's office, may not have reasonable expectations of continuing to serve customers in the midst of a pandemic. with this in mind, the federal and state governments may in some way mitigate the economic impact on the regulation of such entities (stiff, 2020). in the face of the economic challenges posed by the covid-19 outbreak, the united states is also considering putting small business losses on insurers that cover business breaks, or the insurance industry as a whole (tager, white & hamilton, 2020). however, in such a case, insurance companies may also apply the protection provided by restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 270 the constitution against imposing excessive burdens on them. in such cases, excessive insurance payments may also qualify as foreclosure. although in this case it will be difficult for companies to prove that it is a seizure, as taxes and payments usually are not qualified as a seizure, it is likely that payments to the insurance fund will be qualified as a property interest subject to seizure rules (tager, white & hamilton, 2020). 4.2. features of ensuring the protection of private property from state interference in british law. in the united kingdom, similar principles are applied to ensure the protection of private property from interference by the state. english public law contains clear provisions prohibiting the confiscation of property or disproportionate interference with the use of property without adequate compensation for such acts. the principle of interpretation of the law in the uk is to prohibit the application of the law on the seizure of private property without compensation, unless the intention to do that is formulated clearly and unambiguously (in re peacock (secretary of state for the home department intervening); colonial sugar refining v melbourne harbour trust). however, this is not an absolute limitation, and the state may apply legal provisions to restrict non-compensatory property rights (hoveringham gravels ltd v secretary of state for the environment). the government may also impose restrictions on the use of property in the public interest by enacting general regulatory laws. in addition, english courts also rely on the human rights act 1998, which establishes the fundamental rights and freedoms to which everyone is entitled in the united kingdom. it incorporates the rights set out in the convention into domestic english law (equality and human rights comission, 1998). it is this regulation that owners can rely on to seek compensation for the restriction of their rights during the covid-19 pandemic. such restrictions were introduced in the uk by the coronavirus act 2020, which allowed the government to ban the holding of events or gatherings, as well as the entry, exit or accommodation of persons to protect against the spread of covid-19 or to promote the best deployment of medical or emergency resources. the coronavirus act 2020 does not provide for compensation when the government exercises such powers. the government used this power to order the closure of a large number of businesses, including restaurants, bars, pubs and gyms. since such measures have deprived many companies and individuals of income, they may try to argue that this means deprivation of property, not just control over its use, and therefore they should be entitled to compensation. interested parties may rely on the above principle of interpretation of laws, in particular the coronavirus act 2020, which prohibits the application of the law on the seizure of private property without compensation, unless the intention to do so is formulated clearly and unambiguously. kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 271 however, based on the human rights act 1998, the court may well argue that the restrictions applied during the pandemic ensure a fair balance between the rights of the individual and society as a whole, especially since this balance can sometimes only be achieved when deprivation of property has taken place without compensation. this view is likely to be supported by the fact that, although the government does not fully compensate businesses for all the losses caused by the restrictions, it has announced a number of other measures to support them during this period. in particular, in march 2020, the chancellor announced measures to provide economic support to businesses in connection with the covid-19 pandemic. the initial funding provided by the state and guaranteed loans to support the business amounted to 330 billion pounds. these loans were to be available to any business that needed access to cash to pay rent, wages, or suppliers, or to purchase shares. support was provided through two schemes: to support large firms, a lending mechanism was agreed with the bank of england to provide cheap and readily available commercial paper; to support lending to small and medium-sized businesses, the budget provided loans for business interruptions in the amount of up to 5 million pounds. at the same time, the government provided lenders with a guarantee of 80 percent for each loan. the government also had to cover the first six months of interest payments to each business that receives a loan. in addition, the government has budgeted that retailers, hospitality and entertainment businesses worth less than £ 51,000 will not pay any rates for the next 12 months. in addition, it was stated that retailers, hospitality and entertainment businesses worth more than £ 15,000 but less than £ 51,000 would receive an additional cash grant of up to £ 25,000 per business. it was also announced that 700,000 of the smallest businesses (those eligible for small business benefits) would receive a cash grant of £ 3,000. this amount was later increased to £ 10,000. in april 2020, the uk government introduced further financial support measures for businesses in the form of the coronavirus large business interruption loan scheme and amended the terms of the coronavirus business interruption loan scheme. 4.3. the problem of payment of compensation to owners for losses incurred during quarantine in the ukrainian reality. according to the ukrainian legislation, in the event of a pandemic, there are two possible types of losses that property owners may incur. first, a pandemic is a basis for requisitioning property if the public interest so requires. thus, in accordance with art. 353 of the civil code of ukraine, in case of natural disaster, accident, epidemic, epizootic and other extraordinary circumstances, for public necessity property may be forcibly alienated from the owner on the basis and in the manner prescribed by law, subject to prior and full reimbursement of its value (requisition). in a state of war or emergency, property may be forcibly alienated from the owner, followed by full reimbursement of its value. therefore, if private property is confiscated, such as medical equipment needed to help people in an emergency, or used, for example, motels to house temporarily isolated people infected restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 272 with the coronavirus, owners will be entitled to claim reimbursement or payment for use of such property. the question of the amount of such compensation is decided separately in each case, taking into account all the facts. whether such compensation should correspond to the market value of the seized property is determined by what is considered to be a fair balance between public and private interests, but in view of the objectives of establishing a much lower value can be considered as imposing an excessive burden on owners. the state's efforts to stimulate economic recovery after the crisis may also be taken into account (mcbride, 2020). according to the ecthr's position, compensation must be reasonably related to the value of the lost property, but does not necessarily correspond to its market value. the second type of losses that may be incurred by owners during a pandemic is to block the possibility of doing business, which led to a lack of profits. however, as noted, future income in the practice of the ecthr is considered a kind of property. however, the answer to the question of compensation for such losses is not so clear. according to experts, the inability to use property in business activities can be considered as control over the use if it lasts a short period of time, but can also be considered an interference in the peaceful possession of property in the case of a long period. the question of whether the blocking of shops and restaurants during quarantine will be considered as placing an excessive burden on their owners is very unclear, as in the practice of the ecthr there are no such situations. the situation can be interpreted as meaning that the closure concerned mainly the control of the activities of potential customers, which may mean that during the period of forced closure there were no legitimate expectations of profit. however, compensation may be required for lost stocks of products that can no longer be used (mcbride, 2020). such approach of the court the payment of compensation for the stock, but not the loss of reputation for companies affected by the ban on small arms can be traced in the case of andrews v. the united kingdom (application № 37657/97). in ukraine, in the context of the pandemic and the quarantine imposed in this connection, measures to support business, especially small and medium-sized enterprises, were also introduced by the state. a quarantine support package was approved for entrepreneurs, which included a number of temporary measures, such as tax cuts, cancellation of some payments and lending. among the tax preferences are such as exemption from charging and paying for land used in economic activities, real estate tax for residential premises (but only for march), the abolition of fines and penalties for violations of tax laws, the abolition of the single social contribution for individual entrepreneurs, farmers and persons engaged in independent professional activity (but only for two months), moratorium on tax inspections, increase of annual income limits for certain groups of individual entrepreneurs, postponement of filing declarations, postponement of application requirements cash registers, etc. it was also stipulated that if an individual entrepreneur completely ceases his or her activity and does not receive income during this period, he or she is exempt from paying the single tax (yeshtokin, 2020). kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 273 in addition, in april 2020, the government launched an anti-crisis lending program for micro and small businesses, offering loans at 0% to repay corporate debt and loans at a rate of 3% to pay rent, taxes, utilities and salaries. however, analysts note that using this program was quite difficult. according to the survey, most entrepreneurs who needed such loans did not apply for them due to restrictions, and half of those who applied were denied (kvitsinskaya, 2020). however, if we analyze the situation in ukraine during the covid-19 pandemic, it turns out that the decisions taken are far from ambiguous in terms of ensuring private property rights. first of all, the measures taken to prevent the spread of the disease, which led to restrictions on property rights, did not comply with the principle of legality in the meaning given by the ecthr and the united nations guidelines on human rights in the covid-19 pandemic. the principle of legality means that restrictions on property rights must be introduced strictly by law. the mere fact of a breach of the principle of legality is sufficient to provide protection to owners whose rights have been restricted. in august 2020, an attempt was made to declare unconstitutional some provisions of the resolution of the cabinet of ministers of ukraine "on quarantine to prevent the spread of acute respiratory disease covid-19 caused by coronavirus sars-cov-2 and stages of mitigation of countermeasures" of may 20, 2020. these were provisions that prohibited for the period of quarantine, in particular: holding mass events with more than 10 participants; work of public catering establishments, shopping and entertainment centers, activity of establishments providing accommodation services, entertainment establishments, fitness centers, cultural establishments; implementation of regular and irregular transportation of passengers by road in urban, suburban, intercity, intra-regional and inter-regional communication, in particular passenger transportation on city bus routes in the mode of a minibus. that is, the it concerned precisely those provisions which in fact limited the rights of owners to use their property in carrying out business activities, which led to the loss of their income. the decision of the constitutional court of ukraine of august 28, 2020 stated that according to article 64 of the constitution of ukraine, the constitutional rights and freedoms of man and citizen may not be restricted, except in cases provided by the constitution of ukraine. in conditions of martial law or state of emergency, certain restrictions on rights and freedoms may be established, indicating the term of these restrictions. at the same time, the constitutional court of ukraine stressed that the restriction of constitutional rights and freedoms of man and citizen is possible only in cases specified by the constitution of ukraine. such a restriction may be established only by law, i.e. by an act adopted by the legislative body in ukraine. establishing such a restriction by a bylaw contradicts to articles 1, 3, 6, 8, 19, 64 of the constitution of ukraine. thus, in fact, it was recognized that the measures implemented during the quarantine, which led to the restriction of private property rights, can not be considered as consistent with the principle of legality. however, the constitutional court of ukraine with reference to art. 62 of the law of ukraine "on the constitutional court of ukraine" refused to declare the disputed provisions of the above resolution of the cabinet of ministers unconstitutional and closed the constitutional proceedings in this part on the restrictions of private property right in terms of the covid-19 pandemic: the experience of the us, uk and ukraine the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 274 grounds that the act (its separate provisions) was repealed. such an approach deprives the owners of the right to claim compensation for material or moral damage caused to individuals or legal entities by acts and actions that are declared unconstitutional, on the basis of art. 152 of the constitution of ukraine. however, the owners are not deprived of the right to demand payment of compensation by the state for the deprivation of their property (future income) during the established restrictions. of course, the consideration of such cases will be ambiguous, and national courts are likely to tend to deny such claims (to protect rights in this case is possible on the basis of article 1173 of the civil code of ukraine). in addition to the difficulties in substantiating the fact of confiscation of property or causing damage, there is also the question of the qualification of tax preferences and benefits provided, which can be considered as a kind of compensation by the state. nevertheless, when applying to the ecthr, there are chances to receive compensation from the ukrainian state, as potential property income is covered by the concept of property, and there is a violation of the principle of legality. 5. conclusions. the analysis leads to the conclusion that as a result of the pandemic, all countries faced the same challenges and the measures taken to prevent the consequences of the pandemic were largely similar. however, in some countries, the issue of compensation to owners for quarantine losses has been addressed more effectively, in others less effectively. what the united states, the united kingdom, and ukraine have in common is that the laws of these countries (as in most countries of the world) contain provisions aimed at preventing excessive interference in private property by the state. if such interference occurs in the interests of society or the state, the owners must be compensated. however, the situation that arose during the pandemic is not quite typical, here the rules for preventing state interference in private property are not so obvious to apply. after all, in this case, most often it is not about the seizure of property from private property, but in fact about the prohibition of the use of property in business activities, which entails the loss of future income. therefore, the question arises whether the owners need to get the compensation of the value of property that is not actually in their possession (future income). however, an analysis of the case law of the ecthr leads to the conclusion that future income should also be understood as property within the meaning of protocol №1 to the convention, and therefore deprivation of business owners of future income can be considered as confiscation of property requiring compensation. an analysis of the practice of the united states, the united kingdom, and ukraine reveals that in all of these countries, there is an understanding that business owners need support in the context of the covid-19 pandemic. however, the question of the balance of private interest and public interest is resolved in these countries ambiguously. in fact, the amount of compensation paid to owners is not determined by the amount of income kateryna nekit the age of human rights journal, 16 (june 2021) pp. 263-277 issn: 2340-9592 doi: 10.17561/tahrj.v16.6275 275 they lose. support is provided within the framework of all measures implemented by the state. in fact, not in all countries are these measures sufficient and effective. for example, in ukraine, the amount of compensation was meager, and it was difficult to take advantage of benefits and credit programs due to bureaucratic procedures. therefore, it is quite probable that ukrainian business owners will apply to the court to pay them appropriate compensation for the income lost during quarantine. the analysis leads to the conclusion that in the case of applying for compensation to the national ukrainian courts, the owners are likely to be denied. in this case, it may be difficult for the owners to justify the seizure of property or damage. in addition, there will be a question about the qualification of tax preferences and benefits provided, which can be considered as a kind of compensation by the state. the situation is complicated by the fact that the resolution of the cabinet of ministers of ukraine, which introduced quarantine measures, was not declared unconstitutional, despite attempts to recognize it as such. this deprives ukrainian business owners of the right to claim compensation for material or moral damage caused to them under art. 152 of the constitution of ukraine. however, if ukrainian owners apply to the ecthr, they have every chance to receive compensation from the state, because, as we have found, first, potential property income in the practice of the ecthr is covered by the concept of property. secondly, since the quarantine measures and related restrictions on the rights of owners were introduced not by law, there is a violation of the principle of legality, which in practice of the ecthr is one of the main conditions for state intervention in peaceful property. thus, the violation of the principle of legality gives grounds to demand compensation for interference in the peaceful possession of property. references aguiar ribeiro do nascimento, g. 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[online] available at: https://volnovakha.city/read/city/79009/yaki-zahodi-z-pidtrimki-malogo-taserednogo-biznesu-zaprovadili-v-ukraini-pid-chas-pandemii-covid-19 received: january 16th 2021 accepted: april 5th 2021 https://crsreports.congress.gov/product/pdf/lsb/ls​b10434 https://crsreports.congress.gov/product/pdf/lsb/ls​b10434 https://www.mayerbrown.com/en/perspectives-events/publications/2020/04/can-they-do-that--possible-constitutional-limitations-on-state-efforts-to-require-business-interruption-and-loss-of-use-carriers-to-cover-small-businesses-losses-from-covid19 https://www.mayerbrown.com/en/perspectives-events/publications/2020/04/can-they-do-that--possible-constitutional-limitations-on-state-efforts-to-require-business-interruption-and-loss-of-use-carriers-to-cover-small-businesses-losses-from-covid19 https://www.mayerbrown.com/en/perspectives-events/publications/2020/04/can-they-do-that--possible-constitutional-limitations-on-state-efforts-to-require-business-interruption-and-loss-of-use-carriers-to-cover-small-businesses-losses-from-covid19 https://www.mayerbrown.com/en/perspectives-events/publications/2020/04/can-they-do-that--possible-constitutional-limitations-on-state-efforts-to-require-business-interruption-and-loss-of-use-carriers-to-cover-small-businesses-losses-from-covid19 https://www.ohchr.org/documents/events/emergencymeasures_co​v​i​d19.pdf https://www.ohchr.org/documents/events/emergencymeasures_co​v​i​d19.pdf https://volnovakha.city/read/city/79009/yaki-zahodi-z-pidtrimki-malogo-ta-serednogo-biznesu-zaprovadili-v-ukraini-pid-chas-pandemii-covid-19 https://volnovakha.city/read/city/79009/yaki-zahodi-z-pidtrimki-malogo-ta-serednogo-biznesu-zaprovadili-v-ukraini-pid-chas-pandemii-covid-19 restrictions of private property right in terms of the covid-19 pandemic: the experience of the us abstract 1. introduction. 2. general remarks on the limits and restrictions of property rights. 3. the concept of property in the case law of the european court of human rights and the admissibil 4. regarding the possibility of compensating the owners for the losses incurred during the quaran 4.1. resolving the issue of compensation for the seizure of private property in the us practice. 4.2. features of ensuring the protection of private property from state interference in british l 4.3. the problem of payment of compensation to owners for losses incurred during quarantine in the 5. conclusions. references the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 117 strategic litigation as a framework for the protection of indigenous rights. an analysis of some of the achievements, difficulties and challenges involved1 asier martinez de bringas* abstract: this study is structured into two clearly defined sections. firstly, strategic litigation will be used as a framework to account for the developments and improvements made to indigenous rights as a result of the remarkable international effort to protect indigenous peoples. some focal points in the production of strategic litigation discourse on indigenous rights and its guarantees will be considered. these will include the discourse produced by the united nations and its related institutions in recent years specifically to solve the dramatic situation of indigenous peoples; and the discourse by the inter-american court of human rights (under the regional aegis of the oas). secondly, these developments will be contrasted with a crude diagnosis of reality by identifying the main difficulties and the real limits for the consolidation and implementation of indigenous rights. this will be followed by an outline of the challenges to be faced by indigenous peoples in the coming years, which will compel them to try new ways of political, normative, and strategic thinking. keywords: strategic litigation; indigenous peoples rights; collective rights; autonomy; territoriality; criminalization. summary: 1. introduction. 2. progress, progression and achievements of indigenous rights. 3. conflicts and difficulties in guaranteeing indigenous peoples’ rights. the rugged path of indigenous challenges. 4. conclusions. 1. introduction any discussion about indigenous peoples requires relying on an ideological analytical framework for both colonial and post-colonial issues. at the same time, talking about the rights of indigenous peoples entails exploring decolonising dynamics as a condition of possibility for these rights to exist; colonial history must be accounted for in order to understand how indigenous peoples were used and abused. understanding the past of indigenous peoples is a condition of possibility for constructing a pedagogy of decolonisation and the dynamics involved. this is the endeavour of an indigenous grammar of rights: to construct an alternative history that involves alternative knowledge and other ways of understanding struggles and rights. decolonisation crucially demands reconstructing indigenous peoples’ epistemologies, discourses, worldviews and ways of 1 the research leading to this publication has received funding through the project “derechos humanos y retos socio-culturales en un mundo en transformación” (it1224-19) of the basque government. * assistant professor of constitutional law, university of deusto, spain (asier.martinezb@deusto.es) strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 118 life, that have been ruined and trampled on. all this is required to give way to the next proactive and enunciative phase, in which the materiality of rights can be constructed based on the practices in the struggle for life, territory and indigenous autonomy as a collective expression of indigenous difference. an analysis of globalisation in connection with indigenous peoples reveals a bleak picture that shows evidence of, and brings back, the shadow cast by colonialism. there are more than 370 million indigenous peoples living on the planet. although they make up approximately 5% of the world’s population, they represent dramatically high levels of poverty: they account for 15% of the world’s poverty and 33% of the world’s extreme poverty. however, indigenous peoples occupy a quarter of the earth’s surface and protect and sustain 80% of the global biodiversity. indigenous wisdom and life practices have operated as barriers to the predation of natural resources (iwgia, 2019; 2020). these data reflect the discriminatory and exclusionary impact of the colonial process on these peoples. despite being the guardians of the earth’s resources due to their life practices and their spirituality, colonial globalisation hounds and discriminates against them in multiple ways. they are deprived not only of their territories and of the goods contained in them, despite being the rightful and original owners; but also of being citizens’ of states that must meet their basic needs, which explains the indicators of extreme poverty identified with them. as guardians of biodiversity and key actors in the implementation of sustainable development and territorial management2 (through ancestral approaches of appropriation, production and territorial sustainability), they become the main targets for persecution. they are also criminalised by the powers of the state and other stakeholders in the exploitation of biodiversity as part of a discourse of progress and development. therefore, original colonial deprivation of land and resources coexists with new and updated forms of postcolonial deprivation, whereby indigenous peoples shift from being the guardians of global sustainability to the victims of their own territories. this study is structured into two clearly defined sections. firstly, strategic litigation will be used as a framework to account for the developments and improvements made to indigenous rights as a result of the remarkable international effort to protect indigenous peoples. some focal points in the production of strategic litigation discourse on indigenous rights and its guarantees will be considered. these will include the discourse produced by the united nations and its related institutions in recent years specifically to solve the dramatic situation of indigenous peoples; and the discourse by the inter-american court of human rights (under the regional aegis of the oas). the latter is a fundamental actor in the construction of a significant and prolific jurisprudence on indigenous peoples; as well as in the creative construction of new legal categories with a purely collective approach, an entire litigation strategy to solve indigenous demands. the articulation, analysis and deployment of this collective dimension of rights will be one of the main threads of interest in this study. 2 crucially, these practices are merged to create and understand the collective identity of indigenous peoples and their rights. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 119 secondly, these developments will be contrasted with a crude diagnosis of reality by identifying the main difficulties and the real limits for the consolidation and implementation of indigenous rights. this will be followed by an outline of the challenges to be faced by indigenous peoples in the coming years, which will compel them to try new ways of political, normative, and strategic thinking. two elements will therefore be considered that are crucial to the consolidation of indigenous struggles and rights: the consultation of indigenous peoples in relation to the decisions to be taken regarding indigenous territories (who, how and what is decided); and the autonomy of indigenous peoples in terms of summarising and synthesising their proposals, which is a necessary mediation for the institutionalisation of indigenous ways of life and forms of development. 2. progress, progression and achievements of indigenous rights since the entry into force of the ilo convention 169 in 1989, there has been an unprecedented development of the agenda for indigenous rights, both in the international system for the protection of rights (un), and in the inter-american human rights system (iahrs). the emergence of a solid international discourse on indigenous rights has meant that indigenous peoples have taken a significant stance on these systems, their discourse and their institutional apparatus. this has led them to refocus their litigating strategy to rehearse and devise avenues of political and regulatory struggle. in this way the indigenous movement has shifted from its past positions based on struggle and claims for rights as a political strategy against the state, to new strategies of regulatory litigation that embrace and endorse the international discourse of human rights as one of the central axes of the indigenous struggle. this has had some advantages, such as the rapid growth and institutionalisation of the indigenous discourse on rights at state, regional and international level. it has also brought about significant losses, including the abandonment of the political and strategic dimension of indigenous struggles. this has entailed subordinating the political potential of indigenous resistance to the mere regulatory strategy imposed by rights discourse, and the need to use its language, means of fighting, procedural timing, and techniques. the discourse of rights and strategic litigation thus becomes the main tool in the struggle for social justice, subsuming and constricting other forms of struggle and resistance that transcend legal language. some of the advances and steps that have taken place regarding the rights of indigenous peoples in the aforementioned protection systems will now be systematised and accounted for in order to demonstrate the quantitative and qualitative progress involved in rights discourse and strategic litigation.31. the ilo convention 169 opened up vast areas of work for furthering and guaranteeing indigenous rights. this was done using three paradigms or strategic frameworks. one was the collective ownership of rights. the convention placed emphasis and energy on talking about ‘indigenous peoples’ 3 an exclusive and exclusionary consideration of the approach to rights as a litigation strategy is extremely limiting, since it depoliticises other strategies for indigenous struggle such as civil disobedience, the right to disobey the law. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 120 and not about populations or other derogatory names that prevented them from being considered subjects of collective rights in relation to indigenous issues. collective ownership as peoples was reduced by refocusing its potential towards the value given to the concept ‘peoples’ in international law; that is, the only collective subjects that have been recognised are states. however, it provided a new scenario for the representation and functionalisation of collective ownership in human rights discourse and in litigation dynamics. the second paradigm considered indigenous peoples’ rights over their territory to be at the core of indigenous rights, as it gives meaning, completeness and scope to the rest of indigenous rights. the rights over the territory were expressed as a different way of understanding the forms of production, reproduction and development of indigenous life. they transcended the civil law approach to land, contracts, borders, and demarcation or delimitation; instead, they became the material and symbolic epicentre that endows indigenous autonomy and jurisdiction with meaning (berraondo, 2016; berraondo, 2006; pentassuglia, 2011, p. 165 y ss). the third paradigm advocated indigenous consultation as a procedural law mechanism to legitimise interventions on indigenous peoples’ rights over their territory. consultation thus entered the constellation of indigenous rights; however, its poor definition and delimitation has caused it to be instrumentally used by states and corporate groups against indigenous peoples. 2. a series of procedures and strategies for the protection of indigenous rights have been created, developed and perfected within the framework of the international system for the protection of human rights. the un permanent forum on indigenous issues (unpfii), established in 2000, is an advisory body to the economic and social council (un) with the mandate to provide the council with technical advice on indigenous issues assist in the promotion of indigenous rights within un programmes and projects. this has been done with ambivalent expertise and skill. the forum has refined its work by focusing its topics for debate and discussion on the more political and central dimensions of indigenous rights.4 the topic of the 17th session of the unpfii, namely ‘indigenous peoples’ collective rights to lands, territories and resources’ may serve to illustrate this. 3. the united nations special rapporteur on the rights of indigenous peoples has taken a leading role in the defence of indigenous rights as part of a special procedure by the un human rights council. the rapporteurs have gathered vast information on violations of indigenous rights and made numerous recommendations to prevent and remedy these 4 the forum has been concerned with a multitude of issues that are essential for rethinking the breaches of indigenous rights, their guarantees of receiving reparation, and litigation strategies. it has decisively addressed significant matters and spaces to identify cases of exclusion and discrimination, such as the multiple discrimination against indigenous women and girls; the thorny topic of indigenous cross-border issues; militarisation in indigenous territory; commercial law of indigenous peoples; indigenous disability; deforestation; indigenous participation in exclusion systems; traditional indigenous knowledge; the impact of extractive industries; decolonisation; the truth commissions in relation to the dramatic repression suffered especially by indigenous peoples; fishing rights; and the special impact of climate change on these peoples, among others. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 121 violations. they have received and investigated violations of rights from both individual complaints and collective communications, which has led them to make numerous visits to countries to cross-check, regulate and denounce the situation of the rights of indigenous peoples. they have also compiled thematic and country-based reports to assess vulnerable situations and plan litigation strategies. the thematic viewpoint adopted by the current rapporteur on central themes is interesting for understanding the vulnerability of indigenous peoples, and to gauge the main conflicts they face. an example was the thematic study on ‘attacks against and criminalisation of indigenous peoples defending their rights’,5 which drew attention to a line of work in which rights mechanisms and litigation strategies should focus in the future. the thematic report on indigenous peoples and self-government was also politically very significant, as it established a seamless line between the right to indigenous self-determination exercised through autonomy and self-government, indigenous peoples’ rights over their territory and indigenous forms of development, all of which are fundamental to guarantee a solid agenda for indigenous rights.6 4. the expert mechanism on the rights of indigenous peoples is a subsidiary body of the human rights council created in 2007. it is composed of seven independent members whose mandate is to provide advice and expertise on the rights of indigenous peoples as set out in the united nations declaration on the rights of indigenous peoples. its mandate was reviewed in 2016, and it monitors and guarantees the implementation of indigenous rights by visiting the states7 and reinforcing cooperation with other organs of the united nations human rights treaties. the thematic focus of this mechanism are the main areas that are under threat in connection with the protection of the rights of indigenous peoples. as a result, a thematic study on free, prior and informed consent was conducted with a view to continuing and complementing the work of the special rapporteur on the rights of indigenous peoples on this matter, carried out in previous years by james anaya.8 5 the study addresses the hostile reality of human rights defenders, with special interest in indigenous rights defenders. it sets out a series of measures necessary for prevention of violations and protection of the rights of defenders. additionally, it documents the increasingly drastic and worrisome criminalisation of indigenous peoples defending their rights and the threats that they are systematically subject to, especially when they exercise their territorial rights and defend the natural resources adjacent to them. the study also examines the underlying, deep factors that ultimately cause the criminalisation of groups and peoples that devise a rights protection strategy in connection with ecological and territorial issues. cf. report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, victoria tauli corpuz, doc. a / hrc / 39/17, 10 august 2018. 6 report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, victoria tauli corpuz, doc. a / 74/149, 17 july 2019 para. 23. 7 she inaugurated this new dimension of her mandate (assistance and advice to states) by visiting the philippines and mexico city in 2018. 8 study of the expert mechanism on the rights of indigenous peoples ‘free, prior and informed consent: a human rights-based approach’, a / hrc / 39/62, 10 august 2018, paras. 6-8. clearly relying on colonial aspects, the expert mechanism report argued that the right to self-determination is the fundamental human right on which free, prior and informed consent is grounded, strongly linked to the indigenous right to autonomy and self-government. it establishes that the articulation of prior, free and informed consent as a right has a three-fold purpose: i) to ensure that indigenous peoples recover control over their lands and strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 122 5. one of the great advances in the area of indigenous rights was the approval of the united nations declaration on the rights of indigenous peoples (the declaration), which serves as a core project on the basis of which a comprehensive programme for indigenous rights protection and litigation can be implemented. it is the regulatory conclusion of the many years of indigenous struggle in the united nations. the declaration demonstrates a clear paradigm shift in the understanding and assertion of indigenous rights. indigenous self-determination is the corner stone of the declaration, as a fundamental right on which all individual and collective expressions of indigenous rights can be comprehended. this is supplemented by the need for indigenous self-identification, as criterion for affiliation to know who feels indigenous. this is the result of the heuristic role that selfdetermination plays in the declaration; not only as a collective project and but also in its individual dimension, which involves internal self-determination to declare oneself indigenous, beyond any limiting and excluding external affiliations. the spirit and aim of the declaration also relates to the determination to establish prior, free and informed consent as a preparatory right to develop indigenous peoples’ litigation strategies for selfdetermination, rights over their territory and regulatory systems. it is not, therefore, one more right, nor is it an instrumental or functional right. the spirit of the declaration is that consent (not its degraded version in the form of an indigenous consultation) should operate as an interpretive seed for the implementation of other rights, such as indigenous peoples’ autonomy and rights over their territory. 6. as part of the framework put in place to guarantee the protection of indigenous rights in international human rights law, it is also necessary to note the role played by the committee on the elimination of racial discrimination (cerd), the committee on economic, social and cultural rights (cesr), the human rights committee (hrc), the committee on the rights of the child (crc) and the committee on the elimination of discrimination against women (cedaw), among others. these committees make a determined effort to interpret the rights and engage in strategic litigation work aimed at including other forms of discrimination and violation that strictly affect indigenous peoples. they also attempt to integrate the declaration into the interpretative standards for all human rights. 7. the cerd has been creatively taking steps for the protection of rights relating to racial discrimination in its collective dimension. to do so, it has used procedures such as early warning and urgent actions and has considered how multiple, intersectional discrimination typically affects indigenous peoples, particularly vulnerable groups. the cerd has shown how a fundamental discrimination, namely colonial dispossession (of property, of rights, of identities, of territories, of culture, of knowledge), has been a stepping stone to other forms of discrimination relating to a classical conception of rights (education, life, language rights, housing, food, etc.). resources; ii) to restore indigenous peoples’ cultural integrity, pride and self-esteem; and iii) to redress the power imbalance between indigenous peoples and states (para. 11). this lay the foundations for understanding the seamless, circular nature of the restorative and redressing process relating to indigenous collective rights: indigenous autonomy is interdependent with rights over the territory and prior, free and informed consent. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 123 under general comment 23 on indigenous peoples, the cerd has made indigenous peoples a central, collective subject to be analysed and protected, as they are affected by multiple intersecting and cross-sectional forms of discrimination, both individual and collective. it defines the new types of indigenous discrimination, including the denial of self-identification (as opposed to exclusive external designation); the denial or limitation of indigenous peoples’ self-determination, a necessary condition for the assertion of other rights; the selective and instrumental use of indigenous consultation and consent; territorybased discrimination, through dispossession, violence or expulsion; indigenous structural discrimination in the context of socio and employment relations; and discrimination in terms of access to healthcare and treatment, of access to education, of housing and of the practice of justice.9 the committee conducted a review of discrimination based on the colonial dispossession of indigenous peoples. it provided a view of classic individualised ways of understanding discrimination that was interdependent and interconnected with some forms of collective discrimination resulting from the specific way that the rights of indigenous peoples are understood and exercised. 8. general observation 24 of the cesr, for its part, made an intercultural interpretation of the violations of certain rights to accommodate and protect indigenous peoples, considered to be one of the most vulnerable groups, as they have been dramatically affected by the harmful action of the ‘business activities’ that take place in their territory.10 the cesr has sought novel, strategic interpretations, facilitating an interdependent understanding of the individual and collective dimensions. it has taken distance from the classic interpretation of rights as isolated and atomised units. the cesr has advocated the ‘cultural values’11 of indigenous peoples, since any business endeavour that distorts and affects these values involves a breach in the chain of indigenous collective rights. the need for free, prior and informed consent is also emphasised in relation to ‘all matters that could affect their rights’, in order to assess the impact that these actions have on the entire chain of rights. the cesr firmly stated that companies should consult indigenous peoples through their representative institutions in order to obtain free, prior and informed consent.12 the term ‘expressive violence’ can be used when referring to individual violations that are strategically projected onto the collective dimension. they produce a systemic link between these two elements, so the violations of individual rights cause breaches in the overall group; and a broken community – (community/people) cannot guarantee the autonomy and freedom of the indigenous people it represents. expressive violence takes shape and is materialised through the actions of businesses in indigenous territory, strongly affecting the daily lives of indigenous peoples and their productive capacity. in this way, they also impinge on many indigenous social rights: health, education, employment, living spaces, language, etc. the interdependence of rights causes collective violations that affect social rights at the same time as in their individual dimension. 9 general recommendation no. 23. 10 committee on economic, social and cultural rights, general comment no. 24, e / c.12 / gc / 24, 10 august 2017, para. 8. 11 it was specifically noted the adverse consequences that the violation of these values entails for the rights over the territory, resources, cultural heritage, traditional knowledge and culture of indigenous peoples, ibid, para. 17. 12 ibid., para. 12, 17. cf. in this regard, see human rights and transnational corporations and other business enterprises, a / 68/279, para. 31; united nations declaration on the rights of indigenous peoples. guiding principles for business enterprises, un, 2013, p. 26; a / hrc / 33/42; and a / 66/288, paras. 92 to 108. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 124 the cesr also made an important reference to the right of indigenous peoples to control the intellectual property over their cultural heritage: their traditional knowledge and cultural expressions.13 in this way, the cesr decolonised the influence that may be exerted on indigenous peoples’ cultural rights, limiting the actions of states and businesses. 9. the human rights committee’s general comment 36 (2018) identified deprivation of land, territories and resources of indigenous peoples and environmental degradation as important effects on indigenous peoples’ right to life. it therefore established an interdependent connection between individual and collective rights, based on the right to life.14 10. the committee on the rights of the child has made a critical diagnosis of the cumulative discrimination experienced by indigenous children discrimination. it highlighted the particularly vulnerable nature of this group and the exclusionary discrimination to which this group is subjected, especially in access to medical care, and basic and intercultural education. this has become chronic in guatemala, el salvador, panama and argentina. the extreme vulnerability of this group due to poverty and malnutrition and the working conditions and social exploitation of indigenous children in guatemala are particularly remarkable.15 this report stresses the impact that extractive mining and the industrial exploitation of farming has on the living conditions and future of indigenous children; and the damage that forced evictions causes on indigenous children in the affected communities.16 11. the committee on the elimination of discrimination against women also highlighted the intersectional discrimination faced by indigenous women and girl17. it emphasised the lack of representation of women in community decision making, and the discrimination they experience in access to justice and to land ownership. in general comment 27 (2018), it established a structural connection between the effects of climate change and its special impact on indigenous women.18 one of its new contributions was noting the direct and harmful impact that climate change produces on the most vulnerable groups and communities, especially indigenous peoples, because of their special relationship with the land and its resources. it emphasised the special impact that climate changes produce on indigenous women, as main subjects involved in the production, reproduction and development of territories/bodies, and of the resources linked to them. as a result, indigenous women were granted special protected status based on the indigenous territory/body. they are a leading group in the sustainability of the territory and are therefore especially vulnerable to the emergence of a new paradigm of conflicts: ecological and territorial conflicts.19 13 ibid., para. 24. 14 hrc / c / gc / 36. 15 crc / c / gtm / co / 5-6; crc / c / pan / co / 5-6; crc / c / arg / co / 5-6; crc / c / slv / co / 5-6; crc / c / nor / co / 5-6. 16 a/hrc/39/17/add.3, para. 95-96. 17 cedaw / c / sur / co / 4-6; cedaw / c / chl / co / 7; cedaw / c / fji / co / 5; cedaw / c /sur / co / 4-6; cedaw / c / mex / co / 9; cedaw / c / npl / co / 6; cedaw 18 cedaw / c / gc / 37. 19 in 2018, indigenous peoples achieved two important milestones under the united nations framework convention on climate change. the facilitating working group was created for the optimal functioning of asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 125 12. finally, within the inter-american human rights system (iahrs), the highest jurisdictional body for the protection of human rights in the regional framework of the oas is the inter-american court of human rights (iachr). another fundamental human rights body within the iachr, the inter-american commission, has prepared a series of innovative thematic reports on the situation of indigenous women, the impact of extractivism as an emerging conflict for indigenous peoples, and an analysis of the situation and problems of isolated indigenous peoples. these reports have detailed emerging human rights violations, emphasising specific nature of indigenous peoples as subjects of law, and the need to design special forms and mechanisms of protection, as well as new possibilities for strategic litigation. what follows is a review of some judgments from the inter-american court of human rights (iachr) that have highlighted the collective identity of indigenous peoples’ rights, and their different nature from other issues and other subjects. the iachr has established its own grammar and discourse in the interpretation of indigenous rights of great heuristic value, thus separating itself from the basic unit of rights analysis: that of the liberal individual subject. in the selection discussed here, the focus is on those judgements that show the indigenous specific nature, both in terms of culture and of worldview, which account for the collective quality of these peoples. these judgements emphasise indigenous self-identification as a fundamental criterion for affiliation, avoiding regulations of who is indigenous and how to be indigenous imposed from outside the worldview of indigenous peoples, either individually or collectively. these judgments account for indigenous collective materiality and community morphology through indigenous peoples’ own specifically developed regulatory criteria: subjectivity, legal personality, personal integrity within a collective project, collective life, right of ownership of land and natural resources, indigenous peoples’ own organisational modes, collective violation, etc. this is intended to devise indicators, guarantees and protection mechanisms for collective rights that may consider material and immaterial reparation in purely collective terms, beyond the individual unit of analysis of rights discourse (nash rojas, 2008, pp. 61-86; estupiñan silva e ibañez rivas, 2014, pp. 301-336). all this material anticipates a fresh, creative litigation strategy in legal operators such as the iachr. (i) the first judgments that will be discussed are those that emphasise the specificity of indigenous and tribal peoples as subjects of law, with their own collective subjectivity, different from other identities, minorities and peoples. the iachr has made a broad interpretation of the concept of indigenous peoples to ensure that the protection of these rights is guaranteed; not only for the original indigenous peoples (the first and main victims of colonial dispossession) but also for those community identities that are synchronous and parallel effects of colonialism (dulitzky, 2010, pp. 13-48). this was the case of the saramaka community, based in suriname, which was subject to colonial discipline. this involved the displacement of black communities from africa to latin america. the iachr concluded that these communities had been placed in a situation where they lacked protection and therefore were vulnerable in a similar way as indigenous the platform of local communities and indigenous peoples. the green climate fund was established and it adopted a specific policy for indigenous peoples. all of these were pioneering achievements for indigenous peoples in the fight for their rights, and in recognition of their special role in fighting climate change. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 126 peoples were (brunner, 2008, p. 699). for the iachr, tribal peoples share distinctive social, cultural and economic characteristics, including their special link to their ancestral territories, which require adopting special protection measures, similar to those developed for indigenous peoples by the international human rights system.20 (ii) indigenous self-identification is related to the above, as it involves affiliation to a group. the declaration took a new approach to provide better protection of the indigenous subject of rights, avoiding any external regulatory identification with criteria outside the indigenous way of understanding cultural identity and affiliation. the iachr established that determining whether a member of a community may lose certain indigenous (affiliation) rights if s/he lived outside the specific territory of the community must only be the community’s decision, based on internal criteria, and not the state’s. in addition, the lack of individual identification with certain community and collective traditions by certain members cannot be seen as a reason to deny a community its collective rights.21 community identification is a ‘historical and social fact’, which is part of the right to autonomy; hence the state must respect the form of self-identification of a community,22 as this is one of the core powers of communal ownership. in another case, the iachr ruled that contradictions in self-identification or ethnicity cannot be used as grounds to deny communal ownership of their traditional land.23 lack of awareness of the status of a community as an ‘original people’ does not imply the loss of collective rights that may be incumbent on them, nor the subsequent appropriate state obligations, despite the lack of awareness of this collective status.24 selfidentification is preferred as a criterion to determine who is part of a community or people to any form of state identification . (iii) another fundamental issue where the iachr has clarified the applicable criteria has been the collective consideration of victims of human rights violations. do violations of indigenous rights affect a community as if it were a whole, thus establishing the community as the basic unit of measurement of the communal? is there room for considering these violations as collective damage? or should the individual victims (one by one) be considered in any assessment of damages, taking the individual as the unit of measurement instead of the community? in the saramaka case, the iachr did not speak of the saramaka people as having communal ownership. rather, it relied on the individual’s right to ownership and the damages caused. the guarantees and reparations were established as if there had been 20 i/a court h.r. case of the saramaka people v. suriname. preliminary objections, merits, reparations, and costs (pomrc). 2007, paras. 84 and 86. 21 ibid., para. 164 22 ibid., paras. 43 and 49. 23 i/a court h.r. case of the xákmok kásek indigenous community v. paraguay. merits, reparations, and costs (mrc). 2010, para. 33. 24 i/a court h.r. case of the garifuna triunfo de la cruz community and its members v. honduras. merits, reparations, and costs (mrc) 2015, para. 57. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 127 individual violations of rights. a change occurred in the xákmok kásek 25 case, in which judge vio grossi advised that true reparation called for a considering indigenous peoples as such as victims, which required recognising the collective nature of the right and, therefore, of any appropriate reparations. this jurisprudential argument became settled in the sarayacu case, when considering the violation of the right to communal property, which required a new way of thinking about reparations in collective terms, both in their material and immaterial dimensions.26 (iv) the recognition of the legal personality of the community is a procedural guarantee that allows the communal rights that have been recognised for indigenous peoples to be implemented and operationalised. social status enables indigenous peoples to enjoy certain communal rights, beyond them being merely rhetorically or discursively recognised. legal personality is a condition of possibility for the enjoyment of indigenous rights over their territory and its material contents, in other words, for this right to be procedurally asserted. this recognition is an added guarantee and a parameter that can be used to know if someone is the owner of a communal right and can exercise it as such.27 (v) regarding the right to life, in the case of the plan de sánchez massacre (guatemala), both the commission and the victims asked the iachr to define the massacre as genocide. it was considered that the ultimate aim of this massacre was to end the organic and institutional life of an entire community as a people. the mobilising animus was to destroy communal identity as a life structure settled in a territory. the iachr established that it had no competence beyond the inter-american system of rights, while clarifying that these events had seriously affected the mayan people’s communal structure of identity and values, which undoubtedly transcended an atomised understanding and the consideration of individual damages. this aggravated the impact, as it was qualified as communal, which should be taken into account in the reparations.28 in another case, the execution of the community leader escué zapata by the colombian army was claimed by representatives of the victims as being an act that went beyond a mere individual execution. escué was murdered because of his status as a leader, as a representative of the traditional authority of his people. he was an institutional signifier of the community, which transcended the mere individual violation of a right. it was clearly aimed to harm the collective fabric of a community; to fracture and intimidate the communal structures of a people.29 25 i/a court h.r. case of the xákmok kásek indigenous community v. paraguay. merits, reparations, and costs (mrc)2010. concurring opinion of judge eduardo vio grossi, paras. 25 and 26. 26 i/a court h.r. case of the kichwa indigenous people of sarayaku v. ecuador. merits and reparations (mr). 2012, para. 231. 27 i/a court h.r. case of the sawhoyamaxa indigenous community v. paraguay. merits, reparations, and costs (mrc)2006, para. 189-190. 28 i/a court h.r. case of the plan de sánchez massacre v. guatemala. merits. 2004, paras. 42.7; 42.12; 42.21. 29 i/a court h.r. case of escué zapata vs. colombia. merits, reparations, and costs (mrc) 2007, para. 54. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 128 the same would happen in other cases, such as xákmok kásek vs. paraguay; yakye axa vs. paraguay; sawhoyamaxa vs. paraguay, in which the iachr considered that the state had not taken appropriate measures to respect and protect the right to a decent life of all persons in the community, which implied a densely communal interpretation of the right to life and its related issues, something that went far beyond the classic individual interpretations of this right.30 (vi) the iachr has also considered violations of personal safety to have clearly communal scope and effects. making the remains of a loved one killed by state agents disappear, depriving the community of their right to grieve and causing communal suffering due to the spiritual significance of the disappearance of a body goes far beyond the individual damage.31 in other cases it has been deemed that the intent to produce systematic damages to the communal structure implies additional, qualified suffering, which leads to collective emotional, spiritual and psychological imbalances that go beyond a mere individual appraisal.32 in the río negro massacre, after the extrajudicial killings of indigenous victims were perpetrated, their bodies were burnt and buried in open graves. this was intended to go beyond the mere individual damage caused by murders or summary killings; it was aimed at harming the entire spiritual and religious dimension of these peoples, preventing their transpersonal transit to other realms of life through indigenous ritual and ceremony, a fundamental form of reparation in communal cosmogonies. the iachr not only recognised this as being a clear violation of the collective right to personal safety, but a violation of the right to freedom of conscience and religion.33 the special link between these civil rights and indigenous spirituality and worldview grant them a communal, more profound dimension, related to how conscience and religious freedom are interpreted in liberal terms. (vii) regarding indigenous people’s difficulties in gaining access to justice, the iachr established that the victim’s cultural identity demanded making an interpreter available to avoid rendering her vulnerable, as indigenous peoples usually are in their involvement with state justice.34 beyond the scope of the iachr, it would be necessary to connect this issue with the right to legal pluralism from an intercultural perspective. the right to have an interpreter transcends an individualised consideration of access to justice, which is defined by the right to be understood and understand the procedural logic of the state. this right must operate as an intercultural bridge for indigenous peoples to access and understand justice, beyond its mere formal dimension. the role of the interpreter is to act as an intercultural hermeneutic actor for translating indigenous normative systems into state logic and to inform about the rights and guarantees that the state offers to the indigenous party. 30 i/a court h.r. case of the yakye axa indigenous community v. paraguay. merits, reparations, and costs (mrc) 2005, para. 162-165; i/a court h.r. case of the sawhoyamaxa indigenous community v. paraguay. merits, reparations, and costs (mrc)2006, para. 155-156; i/a court h.r. case of the xákmok kásek indigenous community v. paraguay. merits, reparations, and costs (mrc)2010, paras. 223-234. 31 i/a court h.r. case of bámaca velásquez vs. guatemala. reparations and costs (rc). 2002, para. 81 32 i/a court h.r. case of the xákmok kásek indigenous community v. paraguay. merits, reparations, and costs (mrc)2010, para. 244. 33 i/a court h.r. case of the massacres of río negro v. guatemala. preliminary objections, merits, reparations, and costs (pomrc) 2012, paras. 154-165. 34 i/a court h.r. case of tiu tojín vs. guatemala. merits, reparations, and costs (mrc) 2008, para. 97. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 129 (viii) one of the iachr’s greatest efforts and advances in the field of communal rights has been aimed at bringing intercultural regulatory foundations to the right to indigenous peoples’ communal property. this is goes beyond the narrow scope of private property under the american convention, both materially and formally. in principle, the iachr does not recognise, the right to indigenous communal property as such. for this reason, the iachr has developed an intercultural interpretation of article 21 of the american convention on human rights (achr), which not only fits the liberal concept of private property, but also a material interpretation of the indigenous communal right. the iachr has also recognised the pre-state character of indigenous peoples’ communal property right and accepted conventional protection for these two dimensions and interpretations of property (private and communal). indigenous peoples’ communal right is therefore a substantive, original right, with a temporary and logical priority that sits above state private property; but it is also a right to reparation, intended to correct the uses and abuses of colonialism. that is the interpretative line that the court would use in other territory-based conflicts (citroni y quintana, k, 2008, pp. 317 y ss.). the iachr considers that article 21 of the achr, ilo convention 169, the declaration, together with the internal legislation of the individual states and international human rights law, constitute a ‘corpus iuris’ that provide new criteria relating to the duties of states in terms of indigenous territory-related rights.35 the substantive dimension of indigenous peoples’ communal rights is articulated by the iachr based on the special relationship that indigenous peoples have with their territory. it is fundamental for maintaining their culture, spiritual life and economic survival and preserving the safety of their territory and its transmission to future generations.36 it emphasises, therefore, the importance of this relationship to the territory the production, reproduction and development of these peoples’ lives, from the point of view of culture, economy and worldview. any discussion of indigenous territories also includes natural resources and subsoil resources, a natural expression of a holistic conception of the territory, and the rights that go beyond private property. the denial of indigenous peoples’ rights over their territory would therefore be a violation of these peoples’ right to communal life. therefore, ownership of the territory on indigenous terms (appropriation, use, possession, historical occupation and intergenerational transmission) serves as a legitimate practice for official recognition by the state, regardless of the existence of ownership titles that characterise the logic of civil law.37 there is an important consequence of this: the exercise of this right is not conditional upon its recognition by the state; communal property is prior to the state’s legal titles (as established by the iachr in the awas tigni case ). this precedes a hypothetical social contract with the state, and thus, the proprietary logic that demands titles to secure and justify land ownership. 35 i/a court h.r. case of the garifuna triunfo de la cruz community and its members v. honduras. merits, reparations, and costs (mrc) 2015, para. 103. 36 i / a court hr. case of the mayagna (sumo) awas tingni community v. nicaragua. merits, reparations, and costs (mrc) 2001, para. 149; i / a court hr. case of the yakye axa indigenous community v. paraguay. merits, reparations, and costs (mrc)2005, para. 131. 37 i / a court hr. case of the sawhoyamaxa indigenous community v. paraguay. merits, reparations, and costs (mrc)2006, para. 128. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 130 as a result of the protection given by article 21 of the achr both to indigenous peoples’ right to communal property and to private property, the iachr has made a dialectical interpretation of these conflicting rights. thus, if a community loses possession of its territory as a result of colonial dispossessions beyond its control it will always maintain the right of ownership over them, without the need for legal title, unless these have been legitimately transferred to third parties that acted in good faith. faced with this controversial conflict, in which the restitution of indigenous rights directly collides with the right to private property by third parties that acted in good faith, the iachr has made an integrative hermeneutic analysis and demanded a proportionality test (which includes appropriateness, necessity, and strict weighing.38 this is the ultimate criterion to discern what exactly are the preponderant legal assets in the cases where conflicting rights collide: either third parties’ private property or communal property. given the colonial drift of indigenous territory dispossessions in latin america, the interpretation based on considering which the most vulnerable group is (indigenous peoples) may be seriously affected. this in turn may have an impact on other fundamental rights intertwined with indigenous peoples’ right to their territory (life, cultural integrity, economic survival, health, education, etc.). therefore, an intercultural and holistic interpretation of indigenous vulnerability is called for that accounts for potential communal fractures. 3. conflicts and difficulties in guaranteeing indigenous peoples’ rights. the rugged path of indigenous challenges this section discusses the main difficulties and the actual fabric of the conflicts that indigenous peoples are currently encountering in order to guarantee their rights. the aim is to shed some light on some of the challenges that indigenous peoples face at present and will face in the coming years, as well as the focus to be adopted by the strategic litigation regarding indigenous peoples’ rights in the future. 1. an initial outline of the difficulties involved is related to the gap between (i) the rapid and intense process of creating a grammar of indigenous rights, together with the development of an imposing institutional architecture for its articulation at state, regional and international levels; and (ii) the difficulty in ensuring the actual protection of indigenous peoples’ rights, as evidenced by their systematic violations. this is what has been called an increase in the ‘implementation gap’,39 the immeasurable split between the positivisation of indigenous rights and their real effectiveness (aylwin, 2014, pp. 282294; filac, 2019). this mismatch and asymmetry between the discourse of rights and the actual situation brings an additional major problem to the fore: the crisis of the 38 case of the yakye axa indigenous community v. paraguay. merits, reparations, and costs (mrc)2005, para. 144. 39 both stavenhaguen and the permanent forum have drawn attention to this issue. nietzsche stated that liberal institutions cease to be liberal as soon as they are attained. in this sense, when a communal form of ‘we indigenous people’ manages to obtain the rights that it demands and enable the use of specific litigation strategies, the ‘we’ condition is diluted and the individual logic emerges, depoliticising collective subjectivities. this is the destructive effect of the implementation gap. cf. report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, un doc. e / cn.4 / 2006/78 / add.2, december 15 2005. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 131 rights strategy (of strategic litigation in general) as the main way of confronting the real damages and exclusions caused to indigenous peoples. this mismatch produces a strong depoliticisation of viable practices and tactics, a great erosion of the effectiveness and legitimacy of rights. this introduces a new logistic paradigm on how to understand and face rights as a practice of transformation and emancipation. the question is: what is the emancipatory force of only using the indigenous peoples’ rights approach (as a normative strategy) if other approaches such as resistance or civil disobedience are rendered void and depoliticised as a complement to the indigenous rights strategy? 2. a second group of difficulties follows from the exacerbated and exponential increase in indigenous territorial conflicts around the world.40 although there have been some positive and significant advances in the construction of a regulatory language aimed at the recognition and protection of indigenous communal property, and of indigenous peoples’ rights over their territory as the basis of individual and collective life; the systematic, repeated attacks on indigenous peoples have shown that the rights discourse and the strategic litigation through which it operates continue to be weak, and the ‘implementation gap’ seems to be here to stay (salmon, 2010, pp. 80 y ss.). 3. there is also a progressive instrumentalisation and inversion of the content of other indigenous rights that are key to the indigenous peoples’ political agenda. two paradigmatic examples are the treatment of the consultation and of indigenous peoples’ autonomy. 3.1. free, prior and informed consultation has become a central issue for the exercise and application of indigenous peoples’ rights. articles 6, 7, 15 and 16 of ilo convention 169 establish that governments must consult the indigenous and tribal peoples concerned whenever consideration is given to legislative or administrative measures which may affect them (articles 6 and 7), or to any programmes for the exploration or exploitation of resources pertaining to their lands (article 15). the convention also specifically mentions that the indigenous communities concerned shall be taken into account in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly (articles 6 and 7), and that, when the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent (article 16.2). similarly, the united nations declaration on the rights of indigenous peoples specifically states that indigenous peoples should be consulted before adopting legislative and administrative measures that affect them; and before approving any project that may have an impact on their lands or territories, and the resources surrounding them. in a similar vein, it establishes that free, prior and informed consent is essential in cases of transfers or relocations of communities (articles 10, 19, 30 and 32). additionally, it contains some provisions on situations not covered by convention 169, more precisely, by specifying the type of measures that indigenous peoples’ should be consulted on. for example, it provides the duty to consult the indigenous peoples concerned before 40 el mundo indígena 2019 is an excellent report on the root causes of indigenous territory-based conflicts, and the impact that these conflicts have on indigenous peoples’ life chain. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 132 using their land or territory for military activities (article 30), which was not specifically contemplated in convention 169.41 the iachr has recognised that consultation is a ‘general principle of international law’ based on the close relationship that indigenous peoples have with their territory; on the importance that communal property has for them; and on their cultural and spiritual ties they have with it.42 in addition, for the iachr, consultation is closely linked to the right to political participation contained in article 23 of the achr, in connection with any decisions that may affect indigenous rights and interests that are made without their participation. consultation is, therefore, an integral part of indigenous peoples’ right to self-determination. rapporteur james anaya maintained that, although the declaration and ilo convention 169 stated that consultations with indigenous peoples should be held in good faith, in order to obtain their free, prior and informed consent, these international instruments cannot be considered to give indigenous people a general right of veto.43 for the rapporteur, consent should ideally be the ultimate result of any consultation process carried out in good faith, whether on large-scale investment projects, on medium or small-scale projects, or on any other issues that may affect the interests of indigenous peoples. the duty to consult is a remedial right that has arisen to put an end to historical colonial models that have been imposed on indigenous peoples and threatened their living conditions. however, it can never be a veto ‘to unilaterally impose their will on states when the latter act legitimately and faithfully in the public interest.’44 following this thorny distinction between consultation and consent, which concluded with the more than controversial final corollary of rapporteur anaya on the fact that the consultation does not grant a right of veto to indigenous peoples, the dynamics of consultation in latin america entered a process of instrumentalisation and ‘administrativisation’; as a result, the exercise of this right is left to states and businesses, rather than to indigenous peoples. administrativisation is a technique to render the right void in terms of consultation, and to make other subjects (states and/or businesses) the key players. what was a duty of states, companies and third parties who were present in indigenous peoples’ territory has turned into their right. the process of administrativisation has also simplified the communal nature of the subject of the consultation. therefore, the complex dimension of indigenous peoples’ rights to their territory (as a unit of life with cultural, economic, symbolic, spiritual, productive dimensions) is dissected into measurable units. this ultimately imposes an 41 a regulatory analysis of the constituent elements of the consultation, a critical overview of the latest proposals made, and the threats to indigenous peoples’ perspective can be seen in martínez de bringas, 2012, pp. 127-149; patiño palacios, 2014, pp. 70 y ss. 42 i/a court h.r. case of the kichwa indigenous people of sarayaku v. ecuador. merits, reparations, and costs (mrc) 2012, para. 164. 43 report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, james anaya. doc. a/hrc/12/34, 15 july 2009, para. 46. 44 ibid., para. 49. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 133 individualising logic (based on the liberal concept of private property) on the indigenous way of understanding the meaning of consultation. in addition, the methods and manner of consultation and the procedure employed have become prominent and discarded the material content, namely indigenous peoples’ rights to their territory and the ensuing rights. the formal dimension of law thus replaces and supersedes the material dimension of law. reversing the content of the right to consultation’ involves constructing a public discourse that places indigenous peoples as enemies of progress and development, as subjects opposed to the common good, displaying a clear neoliberal bias. the indigenous territory operates as a brake, a solid lock that hinders both private and public investment. the discourse of ‘development’ demands a flexible use of the territory, and, therefore, of the logic of consultation. if indigenous peoples continue to engage in a consultation discourse that in practice e places a veto on investments in their territory, this is a bargaining affront to the state’s fragmented sovereignty and territory. therefore, a flexible, instrumental concept of corporate social responsibility is used to dismiss indigenous peoples’ rights (arévalo, 2014, pp. 115 y ss.). 3.2. indigenous autonomy is a fundamental right for constructing and reconceptualising indigenous peoples’ communal. however, autonomy, in its forms of construction and development has been interpreted antagonistically by indigenous peoples and by the state. for indigenous peoples it entails the strengthening and development of their forms of production, reproduction and individual and collective lives, that is, institutionalising the emancipatory dimension of their political subjectivity. for states it has been conceived as a means to focus on legitimising forms of state governance that allow indigenous peoples to become integrated into states. for states it is somewhat a concession, a new social agreement to manage the ‘indigenous issue’ differently within a renewed public policy (anaya 2009; martínez de bringas, 2018, pp. 101-138). to speak, therefore, of the instrumentalisation of indigenous autonomy involves redirecting it to mere public policy, a process of indigenous integration that ignores and relegates the substantially political dimension of autonomy, simply reducing it a state sovereignty issue.45 this leaves behind ‘plurinationality’, a rich term designed to build a new framework of relations with the state, where plurinational pacts intersect to synchronise and intertwine indigenous peoples’ rights over their territory with state positions, in an autonomous space that transcends mere administrative decentralisation (dahl, 2020) the administrativisation of indigenous autonomy and its consequent depoliticisation implies diluting and neutralising the essential content of this right, namely indigenous communal property as recognised by the iachr under article 21 of the achr; traditional 45 it is precisely when the issue of state sovereignty is transcended (using a category such as plurinationality) that a state power can be considered it its full complexity. the mechanisms, techniques and tactics that have served to maintain the colonial structure and power thus can then be unveiled by resorting to restoration supported and proposed by indigenous autonomy. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 134 indigenous knowledge located and linked to the territory and its ways of life; economic, social and political control of the territory; and the management of food sovereignty within their own forms of development (martínez de bringas, 2018, p. 110). a rigorous interpretation and application of indigenous autonomy would have important consequences for the configuration and delimitation of the state. it would imply implementing legal pluralism in its broadest sense, beyond constitutional single-jurisdiction approaches and international human rights law itself (yrugoyen, 2016); plurinationality, which would allow a readjustment and integration of indigenous nations into the state, beyond purely state-centric structures, such as american federalism; and interculturality as a fundamental hermeneutical criterion to understand the relations between state and indigenous peoples. autonomy as a right requires adapting the indigenous territory to the sovereignty of the state. it also demands reshaping state sovereignty based on the parameters of indigenous peoples’ worldviews about their territory, rights, autonomy, law and sovereignty. 4. finally, we could talk about the postmodern emergence of new threats and risks for indigenous peoples. one is the new global neo-extractivist policy, particularly tested in latin america; and, concomitantly and interdependently linked to the above, the criminalisation of indigenous peoples for their defence of their rights and territory. all of these open new avenues for thinking and rehearsing strategic litigation. 4.1. neo-extractivism in latin america has resulted from a transition from the washington consensus to the consensus of commodities (svampa, 2018, pp. 24-31; 2019).46 this makes the exploitation of natural resources the axis along which the new global surplus value, the new niches of wealth and exploitation for capital emerge (which, paradoxically, are occupied, inhabited and protected by indigenous peoples). neoextractivism demands realigning the economy with the primary sector, which involves adopting intensive and extensive exploitation of its resources as a new productive criterion. it is a social form of territorialisation, a special way of understanding development for capital, and a new postcolonial expression of dispossession for indigenous peoples. neo-extractivism, as a new and renewed attack on the rights of indigenous peoples has a circular outline: (i) it demands indigenous territorial dispossession due to the existence of projects that involve large investments in these territories47 (for oil exploitation; for open pit mining; for hydrocarbon exploitation; for farming industry focused on the monoculture of soybeans, palm-oil, etc; for large construction works and communications projects across indigenous territory); (ii) territorial dispossession produces inequality, discrimination and exclusion among indigenous peoples, making them one of the most vulnerable and persecuted groups on the planet; and (iii) the final step in this process is the 46 iachr, indigenous peoples, afro-descendant communities and natural resources: protection of human rights in the context of extraction, exploitation and development activities, oea / ser.l / v / ii. doc. 47/15, december 31 2015. 47 report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, victoria tauli corpuz, doc. a / hrc / 33/42, 11 august, 2016, para. 83. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 135 criminalisation of indigenous peoples as a result of their militant and defensive attitude towards this social model of territorialisation.48 this new social model of production and exploitation involves centralising struggles and resistance in what has been called ecological and territory defence, which bring together a plethora of movements, including ecologists, peasants, feminists, postcolonialists, communal movements, indigenous movements, etc. the core of the demand of new and old rights revolves around the simplification and denial of the social conflict that new neo-extractivism entails, whereby ecological and territory damages are nothing other than externalities, necessary requirements for a productive development model. however, from the indigenous perspective it is necessary to include the ecological and territory variable in the capital-labour conflict, as it applies to the indigenous and peasant population. this would make it possible to map out and conceptualise new attacks against communal rights, such as indigenous peoples’ rights to their territory, traditional knowledge, environmental and eco-territorial impacts, food sovereignty, new biodiversity fractures, and the emerging damage from bio-industry, among many other issues. a systematic review can be made of the advances in this sensitive matter, such as the insertion of due diligence in non-binding supranational rules, such as the guiding principles and the oecd guidelines (oecd, 2018); also in hard law, through comparative law, notably in the french law;49 and the draft treaty on transnational corporations and their supply chains with respect to human rights.50 but some serious difficulties and setbacks can also be identified, such as the lack of an adequate treatment of indigenous rights in the international investment agreements, which leave indigenous peoples totally unprotected, while at the same time negotiating other due diligence practices; how prioritising investment always results in harmful arbitration for indigenous peoples; and the exclusion of indigenous peoples from investment negotiation agreements between businesses and the state. this is an emerging strategic litigation niche that requires refocusing efforts and strategies. 4.2. indigenous criminalisation is nothing but the reverse of the above process: an aggressive, systematic and relentless reaction to the processes of collective defence of the territory by indigenous peoples faced with the new paradigm of dispossession and illegal occupation (martínez de bringas y milton yulán, 2019).51 expressive violence against indigenous peoples is therefore exercised against them because they are indigenous peoples, and they have ways of life (preservation, sustainability, reciprocity) that are harmful to the interests of large investments. the criminalisation of the struggle of indigenous peoples therefore has a collective physiognomy. 48 report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, victoria tauli corpuz, doc. a/hrc/39/17, 10 august 2018, para. 47. 49 loi no. 2017-399 of 27 march 2017, regarding the duty of supervision of parent companies and main contractor companies. 50 http://omal.info/img/pdf/treaty_draft-es.pdf. 51 ibid., paras. 27-39; iachr, report on criminalisation of the work of human rights defenders, paras. 57 and 63 to 71. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 136 when one analyses the patterns of violence against these peoples, the common modus operandi shows the intent to systematic annihilate the structures of indigenous peoples’ life, their cultural patterns of functioning and existence.52 that is, the aim is to devastate those ways of life on the grounds of their cultural and collective specificity, and of their special relationship with nature and the territory.53 it is precisely these ways of life that put a limit and radically oppose to the economic and social model of territorialisation and development advocated by neo-extractivism. the indigenous paradigm of good living, with obvious principles such as relationality, complementarity, reciprocity or the cyclical nature of life, constitutes a direct attack on the extractive model of dispossession, annihilation and consumption. by systematising and conceptualising the patterns of discrimination and exclusion of indigenous peoples,54 one can understand the ultimate purpose of this form of violence: denying and destroying the ontological dimension of indigenous peoples, their life practices, their forms of organisation, precisely because they restrict and bring losses to public and private interests, including states, companies and private third parties, among others. we are, therefore, faced with a titanic confrontation between two antagonistic models of understanding economics, development, sustainability and modes of protection. this has also resulted in the development of criminal laws tailored made to persecute the struggle of indigenous peoples and their ways to protest against the new threats to their communal way of inhabiting and defending their territory. these are precisely the direct causes of criminalisation of indigenous peoples. these areas demand intense strategic work of regulatory and political struggle, as they are the current source of the deep wound inflicted on indigenous peoples. 4. conclusions 1. one of the central axes of this study has been the collective nature of indigenous peoples, as expressed in the phrase ‘collective rights’. this is mediated through strategic litigation, due to its importance as a lever for decolonisation. the collective (as a form of expression and work) is essential in the production, reproduction and development of indigenous life. indigenous peoples’ communal institutions are sources of decision making, channels for the reproduction of daily life on communal lands. this is an important counterpoint to the liberal discourse that atomises the collective, fragmenting its sovereign decision-making power on the basis of an individual discourse of rights. to show the power of the collective, this dimension has been re-signified by resorting to the interpretations made by some bodies that oversee the un system treaties 52 i/a court h.r. case of the plan de sánchez massacre v. guatemala. background. judgment of 29 april 2004. series c no. 105, paras. 70-78. 53 i/a court h.r. case of the saramaka people v. suriname. epfrc 2007, paras. 167-172. 54 indigenous genocide is included in this; the violent expulsion, deprivation and dispossession of their ancestral territories; the persecution and killing of their leaders, and of their forms of collective selforganisation; and the plundering and looting of indigenous heritage, among others. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 137 (estupiñan silva and ibañez rivas, 2014, pp. 304 y ss.). a series of judgments of the interamerican court have also been selected to demonstrate the epistemic shift produced by the institutionalisation of rights; using strategic litigation, it has made collective rights a founding core of indigenous rights, and an avenue for designing guaranteeing strategies beyond the individualising rights discourse. 2. the implementation gap has become a mantra that perfectly diagnoses the situation of indigenous peoples’ rights and the limits of strategic litigation. evidence has been provided of the existing split between the regulatory developments in indigenous peoples’ rights (within the un and the iachr) and the reality of rights violations. as regulatory and institutional development increased, indigenous persecution and criminalisation have been intensified sthrough postmodern expressions of violence. the implementation gap also has had a major impact on the process of depoliticisation of indigenous rights by neutralising their content and the possibility of providing any genuine guarantees; and by reducing the entire strategy of indigenous peoples’ struggle to the language of rights and litigating strategies, restricting other political paths of struggle and protest. this has evidenced how difficult it can be to adopt the rights approach as the only alternative to implement the struggle strategy of indigenous peoples and to understand its political dimension. 3. all indigenous conflicts are based around ecological and territory issues. the territory and its collective dimension have an overarching influence on the entire life project of indigenous peoples. it is necessary to how liberal perspectives have failed to turn indigenous peoples into small landowners, as farmers displaced from their communal lands. the limitation of state liberalism is that it addresses this issue from a perspective that allows (state) sovereignty, leaving behind concepts such as plurinationality and sovereignty. this entire process of atomisation and fracturing of the collective has been implemented by the regulatory hand of indigenous peoples’ rights and inclusion through citizenship, thereby abandoning indigenous communal specificity, and the centrality of ecological and territory-based issues in the understanding of indigenous peoples’ demands. 4. as a consequence of the above, a series of challenges have been set for indigenous peoples in view of the qualitative and quantitative increase in territory-related aggressions. the ecological and territory-based paradigm has brought with it a new exploitation map for the interests of capital. this has had consequences in the treatment and embezzlement of certain indigenous rights such as consultation and autonomy. consultation has been instrumentalised, which has irreversibly tended to render it void: it has become consultation at the service of states and companies. autonomy has been fertile ground for the depoliticisation of indigenous rights, given its abstract content and requirements, and for the multicultural policy of insertion by states. consequently, its content has been somewhat diluted and indigenous peoples’ autonomy has become disengaged from its primary source, such as their territory. hence the new paradigm of indigenous aggression will always be structurally related to territory issues in holistic and collective terms. this opens up new pathways of interpretation and testing in strategic litigation for indigenous peoples’ rights. strategic litigation as a framework for the protection of indigenous rights... the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 138 references anaya, j. (2009), “the right of indigenous peoples to self-determination in the postdeclaration era”, in making the declaration work: the united nations declaration on the rights of indigenous peoples, claire charters and rodolfo stavenhagen, eds., iwgia, copenhagen, pp. 184-199. arévalo, a. (2014), el derecho a la consulta previa de los pueblos indígenas en derecho internacional, cuadernos deusto de derechos humanos, nº 76, universidad de bilbao. aylwin, j. (2014), “los derechos de los pueblos indígenas en américa latina: avances jurídicos y brechas de implementación” in jane felipe beltrão and others, derechos humanos de los grupos vulnerables, red de derechos humanos y educación superior, barcelona, pp. 282-294. berraondo m.(coord.)(2006), pueblos indígenas y derechos humanos, universidad de deusto, bilbao. berraondo, m. (2016), la protección de los territorios de los pueblos en aislamiento en américa del sur a partir del desarrollo de los derechos territoriales de los pueblos indígenas, tesis doctoral, universidad de deusto, bilbao. brunner, l. (2008), “the rise of peoples’ rights in the americas: the saramaka people decision of the inter-american court of human rights”, en chinese journal of international law, n.o 7, pp. 699-732. https://doi.org/10.1093/chinesejil/jmn031 citroni, g. y quintana, k. i. (2008), “reparations for indigenous peoples in the case law of the inter-american court of human rights”, en lenzerini, f. (ed.) reparations for indigenous peoples, international and comparative perspectives. oxford university press, new york. dahl, j. (2020), construyendo autonomías, iwgia, perú. dulitzky, a. (2010), “cuando los afrodescendientes se transformaron en pueblos tribales: el sistema interamericano de derechos humanos y las comunidades rurales negras”, el otro derecho, nº 41, 2010, pp. 13-48. estupiñan silva r. & ibañez rivas j. (2014), “la jurisprudencia de la corte interamericana de derechos humanos en materia de pueblos indígenas y tribales” in jane felipe beltrão and others, derechos humanos de los grupos vulnerables, red de derechos humanos y educación superior, barcelona, pp. 301-336. fund for the development of the indigenous peoples of latin america and the caribbean (2019), derechos de los pueblos indígenas: marcos jurídicos e institucionales en los estados miembros del filac, la paz, bolivia. iwgia (2019), el mundo indígena, iwgia, copenhague. iwgia (2020), el mundo indígena, iwgia, copenhague. asier martinez de bringas the age of human rights journal, 15 (december 2020) pp. 117-139 issn: 2340-9592 doi: 10.17561/tahrj.v15.5784 139 martínez de bringas, a. (2012), “el derecho a la consulta de los pueblos indígenas: naturaleza, elementos y procedimientos para su aplicación en el estado”, rvap, nº 93, pp. 127-149. martínez de bringas, a. (2018), “indigenous autonomies in latin america. a comparative view of the difficulties for the construction of an intercultural law”, revista d’estudis autonòmics i federals , 28, pp. 101-138. martínez de bringas a., yulán, m. (2019), misión de observación internacional: situación de defensoras/es campesinas/os de la tierra y territorio, region de polochic, guatemala, mundu bat, bilbao, 2019. nash, rojas, c.(2008),“los derechos indígenas en el sistema interamericano de derechos humanos”, riedh, vol. 1, no 1, pp. 61-86. oecd (2018), due diligence guidance for responsible business conduct, oecd. patiño palacios, l. a. (2014), “fundamentos y práctica internacional del derecho a la consulta previa, libre e informada a pueblos indígenas”, en anuario colombiano de derecho internacional, n.o 7, pp. 69-111. https://doi.org/10.12804/acdi7.2014.03 pentassuglia, g. (2011), “towards a jurisprudential articulation of indigenous land rights”, in european journal of international law, nº 22(1), pp. 165-202. https:// doi.org/10.1093/ejil/chr005 salmón, e. (2010), los pueblos indígenas en la jurisprudencia de la corte interamericana de derechos humanos: estándares en torno a su protección y promoción, gtz, lima, 2010. svampa, m. (2018), las fronteras del neoextractivismo en américa latina. conflictos socioambientales, giro ecoterritorial y nuevas dependencias, universidad de guadalajara, méxico. https://doi.org/10.14361/9783839445266 svampa, m (2019), neoextractivism in latin america, cambridge university press, cambridge. yrugoyen, r. (2016), “pluralismo jurídico y jurisdicción indígena en el horizonte del constitucionalismo pluralista” en h. ahrens, “el estado de derecho hoy en américa latina. libro en homenaje a horst schöbohm”, unam, instituto de investigaciones jurídicas, 2016, p 174-195. received: march 19th 2020 accepted: july 27th 2020 articles asier martinez de bringas strategic litigation as a framework for the protection of indigenous rights. an analysis of some of the achievements, difficulties and challenges involved 1. introduction 2. progress, progression and achievements of indigenous rights 3. conflicts and difficulties in guaranteeing indigenous peoples’ rights. the rugged path of indigenous challenges 4. conclusions references the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 21 tools, gaps and false myths in comparative legal research on human rights encarnación la spina1 abstract: in recent years, the comparative perspective has become increasingly used as a methodological approach to human rights research in the scientific literature. this paper is not intended to summarise the virtues and shortcomings that can be attributed to comparative legal research in the specific field of human rights. rather, its aim is to critically reconsider its interdisciplinary role and, in particular, to reflect on two of the most popular methods in this field of research: legal comparison and the case study method. firstly, this paper reviews the method in question, including its typologies and grounds for use. secondly, it outlines the techniques that determine what and how to compare. finally, a swot evaluation of comparative legal research on human rights is provided, identifying its strengths and weaknesses in order to dispel false myths. keywords: methodology, comparative analysis, legal comparison, human rights, critical function, swot. contents: introduction; i. the comparative perspective and the generation of knowledge: historical evolution, grounds for use and main elements; i.1. a historical evolution on what to compare; i.2. grounds for use: questions that can be answered by comparing; i.3. main elements of comparative analysis in human rights research; ii. some methods and ‘trending topic’ examples in comparative research on human rights; ii.1. the legal comparison method; ii.2. the case study method; ii.3. a practical example of applying the comparative perspective: the integration of migrants; iii. a swot assessment of comparative legal research on human rights; iii.1. strengths…; iii.2. weaknesses…; some final reflections: dispelling false myths. introduction historically, the comparative approach has been undeniably important in the production of scientific knowledge, including interdisciplinary human rights research, an area where its use will predictably increase further in the future because it is an attractive proposition for all fields of study. firstly, because it is a way of seeing and a cross-cutting cognition process that allows the method to be extended. secondly, as noted by landman (2002: 891), comparative research can be considered ‘the best social scientific work’ (stanfield 1993: 25) or it can be categorically stated that unless one makes comparisons, one cannot claim to be doing science (sartori 1991) and thirdly, common issues related to human rights research can be found in countries around the world. 1 this study has been carried out under a postdoctoral research contract from the university of deusto, reference ryc 2016-19465, within the ramón y cajal programme, spanish ministry of economy and competitiveness. i have been supported by two projects: socio-cultural challenges and human rights in a changing world. project in support of the activities of recognised research groups in the basque university system (ref.: (it1224-19) (group recognised as part of category a), and r & d & i mineco/feder project, spanish ministry of economy and competitiveness, and european regional development fund: ‘complex inequality in plural societies. public policy indicators’, ref. der 2016-77711-p. email: elaspina@deusto.es. encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 22 generally, human rights studies tend to compare experiences or solutions in different contexts and situations to better understand the complexity of the legal, political, economic and cultural systems involved. in fact, the main object of comparative research in human rights is to identify and grasp the differences between institutions and legal systems from a global perspective, as well as to offer specific solutions to legal conflicts or issues raised to combine both systematic capacity and analytical capacity. the action of comparing can be an extremely complex task, because human rights cannot be understood without a historical-political and socioeconomic perspective (losano, 2002: 25-35). this has been a field where the use of ‘prefabricated’ categories and concepts derived from the doctrine and jurisprudence has traditionally been deemed to be valid, without considering the contexts or the socio-historical circumstances involved. the need to analyse human rights from within and from the perspective of specific contexts is very recent, and has occurred thanks to a paradigm shift. a paradigm that has led to with a departure from the traditional predominance of the positivist-formalist conception or theoretical/cognitive thinking in human rights research, and to the introduction of new approaches relying on complex thinking. as a result of this shift, it has been possible to rise above a binary conception of knowledge within strict parameters: theory/practice, what-is/what-should-be and structure/function; the absence of critical thinking in the face of memory-based and discursive accumulated knowledge. in contrast, despite some resistance, the progressive move towards complex thought has promoted an analysis of knowledge on the assumption that reality is changing, multidimensional, and indeterminate. according to this, it is necessary a dynamic articulation (texts and context), empirical references are sought (aymerich 2001), and theory is subordinated to the effort of reconstructing the problem by shifting the initial problem into a theoretical object of study (witker 2017). the versatility and methodological centrality of the comparative approach in this field makes it possible to successfully analyse the complexity of social transformations and how those systems and sources of human rights address a specific issue in a ‘crosscultural, cross-national or transcontinental’ way (fideli 1998). in addition, the introduction of comparative research into the social sciences and legal studies replaces empirical experimentation and makes it possible to order images, classify them and highlight their qualities, identify differences and similarities between them, propose classifications, discover trends and counter-examples and reveal successful models as opposed to others in decline. although the action of comparing is an almost instinctive reflex and a remarkable approach, this is not always the preferred or chosen methodology for human rights research among all the myriad of methods available to the researcher. in fact, when looking at the contents of specialist journals on human rights, it becomes clear that legal comparison and/or comparative methods have a relative scientific impact. this is in contrast with the number of doctoral theses or monographic publications in the area of human rights, totally or partially, which –strictly speaking– include a comparative tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 23 analysis.2 these are largely doctoral dissertations that include some comparative law aspects or the micro-comparative method, but in most cases, they are intuitively applied. any attempt at legal comparison is inherently difficult precisely because of its methodological and content-based nature, which involve identifying differences and/or similarities. the more sustainable or viable legal comparisons are those that capture a kind of global cartography or a mere contextualisation at the macro or micro level. however, if the different normative realities are separated, the comparative analysis is usually a simplified and performative instrument to shape a global law (moreno 2017). beyond providing quantitative evidences, its presence in human rights research is more significant when measured in qualitative terms because this varies across countries, specific topics, different levels of development of research teams, the degree of interdisciplinary of scientific institutes and legal training programmes in human rights. for instance, an illustrative field of interdisciplinary research on human rights is that of international migrations and, particularly, migrant integration studies. i choose this as a comprehensive, critical and heterogeneous example of comparative methods due to these gaps and limits. except for a few exceptions, the migration comparative perspective has a marked discursive sociological, historical and political focus that is almost exclusively centred on verifying figures, facts or social factors. this results in other ways of situating the object of the immigration or ‘integration’ from an analytical and normative perspective are disregarded (la spina 2016).3 given the miscellaneous areas and interests found, this article will explore the complexity and versatility of comparative analysis in human rights research, looking transversally at migrant integration studies. this involves identifying what can be compared, how it can be compared, and for the purpose is of making a comparison, and whether it could or should be done, especially bearing in mind the different functions pursued at the methodological level and the most widespread techniques. the cross 2 for example, a quick review the table of contents of the age of human rights journal, revista deusto de derechos humanos and the revista derechos y libertades, among others, from 2008 (the year in which the project started and the huriage consolider network was created) to the present day shows, include very few studies using a comparative perspective, and even fewer that include –strictly speaking– a comparative methodology. see among others, those that include the use of a comparative perspective in their content, and analyse two or three contexts or systems of protection in human rights, are merely exceptions. however, the situation is very different for international specialist human rights journals, such as for example, human rights law review (https://academic.oup.com/hrlr/searchresults?page=1&q=comparative&fl_siteid=5167&searchsourcetype=1&alljournals=1) and others in the dialnet repository , (https://dialnet.unirioja.es/buscar/documentos?querysdismax.documental_todo=perspectiva%20c omparada%20y%20derechos%20humanos&filtros.documental_facet_entidad=artrev). this is without prejudice to some theses that do choose the comparative perspective, according to the result of a simple search in teseo or dialnet, for example, (https://dialnet.unirioja.es/buscar/tesis?querysdismax.documental_todo=perspectiva+comparada +y+derechos+humanos). 3 these include some articles published in the european journal of migration and law, and some publications in the imiscoe research series. but a good part are comparisons with those carried out strictly by jurists that predominantly use the format of reports produced either by european union institutions in collaboration with academic institutions or by international organisations, including selected case law. see, among others iom, emn, ecre, ilpo, fra, aida, and the oecd. https://academic.oup.com/hrlr/search-results?page=1&q=comparative&fl_siteid=5167&searchsourcetype=1&alljournals=1 https://academic.oup.com/hrlr/search-results?page=1&q=comparative&fl_siteid=5167&searchsourcetype=1&alljournals=1 https://dialnet.unirioja.es/buscar/documentos?querysdismax.documental_todo=perspectiva%20comparada%20y%20derechos%20humanos&filtros.documental_facet_entidad=artrev https://dialnet.unirioja.es/buscar/documentos?querysdismax.documental_todo=perspectiva%20comparada%20y%20derechos%20humanos&filtros.documental_facet_entidad=artrev https://dialnet.unirioja.es/buscar/tesis?querysdismax.documental_todo=perspectiva+comparada+y+derechos+humanos https://dialnet.unirioja.es/buscar/tesis?querysdismax.documental_todo=perspectiva+comparada+y+derechos+humanos encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 24 sectional study of the integration of migrants will be briefly outlined as a practical example of how a comparative perspective can be used in human rights research and why false myths are associated to legal comparative research. this article is structured as follows: firstly, its reviews the method in question, its historical evolution, its typologies and its grounds for use; secondly, it outlines the two most established techniques: legal comparison and the case study; and, thirdly, it provides a swot evaluation of comparative legal research, taking into account its potential and weaknesses in order to dispel false myths or barriers within this interdisciplinary field. i. the comparative perspective and the generation of knowledge: historical evolution, grounds for use and main elements in recent decades, explanations, descriptions and interpretations of complex realities that contribute to, and can be made on the basis of, comparative analyses have occupied a prominent place in the social sciences (della porta 2013: 211). not only is it a useful tool for diagnosing social problems or identifying human rights violations, but it is also useful for designing and monitoring public policies. for example, it allows a parameter to be determined when seeking different sources of critical legitimation of social transformations, and even enables solutions to problems or conflicts to be proposed. within the social sciences, the use of comparative techniques is usually based on the triangulation of variables: properties and object; and in some branches of sociology and political science, it is focused on the strict analysis of cases, given the good results achieved. however, the situation is qualitatively different within legal studies. this is somewhat paradoxical, as the comparative perspective is even more isolated in this field, despite the fact that human rights have traditionally been included in it. an explanation of why this method is rarely used is that it is closely related to the social and socio-legal sciences and, to a lesser extent, to the so-called ‘pure normative inquiry’ (örücü, 2001: 52), which is predominant in other types of legal research on human rights. however, such isolation cannot be justified, since an expanded, supranational dimension is needed in order to establish viable legal conclusions on human rights, to be supplemented by approaches and contexts based on political, sociological, economic and anthropological research (etzioni and dubow 1970). i.1. a historical evolution on what to compare engaging in comparison and in comparative analysis are significantly recurrent cognitive activities that are—often tacitly—used to organise and establish connections within social knowledge. this explains the evolution and historical significance of the comparative method in the generation of knowledge, as indicated by sartori and morlino (1994: 12), since it depends on, and adapts to, the various areas where it is applied. therefore, there is no specific or exclusive logic of the comparison at the disciplinary level; rather, it is a shared logic that depends on the aim pursued, and the various means tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 25 available to carry it out. and yet there is an open debate and strong criticism on its scientific or methodological nature in the field of the social sciences and legal studies. this is particularly the case with regard to the historical, epistemological and methodological issues related to comparison, the comparative method and comparative studies. the classic and contemporary authors who have applied comparative methodology in their research, according to morlino's classification (2005: 16-20), there are numerous examples that evidence the historical (r)evolution as to how comparisons should be made. for example, for descartes and the logical school, there was a confrontation between a ‘more and less’ and ‘better and worse’, while locke held that comparison is the foundation and origin of any demonstration and certainty. for hegel, following the cartesian tradition, it involved moving to a thesis/antithesis procedure, and it would be auguste comte who started to explicitly consider it as empirical/historical control or confrontation, and later john stuart mill regarded it as a phase of discovery. alexis de tocqueville’s proposal to juxtapose different forms of comparison is worth noting, in contrast with the ‘comparing logics’ attributed to durkheim and weber. while durkheim opted for the method of concomitant variation, weber put forward the method of concordances and differences. within contemporary doctrine, morlino (2005: 18) highlighted the contribution of sartori and lijphart, among others, who relied on premises and critiques of neo-positivist theories and they ultimately arrived at constructivist theories that demanded greater methodological relativism in comparative analysis. i.2. grounds for use: questions that can be answered by comparing beyond understanding what comparing means, it is most important to identify what can be compared, why, and what the purpose of comparing is. seeking to quickly establish what can be compared is often seen as a priority, leaving aside 'why' and 'for what purpose', even though these questions are closely linked to, and determine the answer to the former. none of the three questions that comparative analysis tries to answer has a simple answer, nor is it doctrinally settled. hence, it has been argued that, if there is no specific rationale or objective (other than the general aim of explaining), the comparative method and comparative methodology does not properly exist. according to sartori (1991) and lipjhart (1971), practically nothing and almost nobody holds that the comparative method is an entity in itself. rather, the comparative method is justified and developed as a specialisation within the scientific (scientific-empirical or scientificlogical) method in general. this is confirmed by the fact that there are differences between comparison as a way of thinking, and comparison as a scientific procedure within the social sciences. the former compares simple operations, while the latter compares complex operations, although the difference lies in the selection and definition of the objectives and properties that are compared, as well as in the care taken in systematising the production and data analysis procedures used to perform comparisons. in this sense, it is important to have a preconceived theory that encompasses the objects studied and proposes a structure that is similar for both. if comparison is regarded as a scientific procedure, it is an intellectual encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 26 operation through which the states of one or more objects are placed in contrast with each other on the basis of at least one common property (sartori and morlino 1994: 23 and following). therefore, according to sartori (1991: 29 and following), comparison is a method for controlling generalisations or models in a specific area of study (laws, policies, cultures, models or systems). to compare is to contrast one thing with another, but if the aim is to control, then the immediate question is what is expected to be derived from control. obviously, comparing or contrasting something serves to control, verify or falsify whether a generalisation fits the cases to which it is applied. the interest in control makes it possible to justify in detail why comparison is useful, and what the purpose is of choosing this method rather than a different one in the design of the proposed research. for example, it can be used in order to achieve the proposed research objectives; to develop research hypotheses that provide important results; and, most importantly, to control the hypothesis formulated without losing control, (a) whatever the generality level of the issue; (b) whatever the interest that motivates the research, be it explanatory, cognoscitive or with a more explicit aim; and (c) whatever point of view (either more strictly national or referring to more or less widespread phenomena). i.3. main elements of comparative analysis in human rights research the question of why use a comparative methodology remains unanswered, so it cannot be reduced to a justification of its mere existence. however, a different issue is the design of comparative research in the field of human rights. for this purpose, it is essential to develop a theoretical structure, or at least a series of hypotheses to be compared, and to make decisions or choices about several of their main elements, which can be used as a basis to opt for one available typology or another. some of these determining elements will now be discussed. 1) operation and context. it is not possible to compare systems, institutions or norms without knowing how they operate, and the cultural, economic and legal context of the society in question. firstly, some knowledge is required of their main outlines, their purpose and their operating mechanisms; and it is also necessary to have empirical and practical knowledge that allows the conceptual categories to be separated out, so that they can be examined in the light of a different system. and, secondly, integrating the contextualisation of two systems into a study at the macro and micro levels must be considered. 2) horizontal space or dimension of the comparison. the most important choice refers to the number of cases. this first decision also needs to consider which the most appropriate cases are in order for them to be included. for example, lijphart (1971) recommends increasing the number of cases to as many as possible; a recommendation which in comparative legal research involves an almost superhuman effort. the underlying reasons are clear: this makes it more likely to control the hypotheses formulated or to reach more precise and localised hypotheses. cases with a greater tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 27 number of variables are often used in collective research involving scholars of different nationalities. 3) establishing which and how many cases or systems to choose. this is inevitably linked both to the longitudinal dimension, in other words, to the scope of the period to be considered, and to the variables to be analysed. for example, taking into account the properties involved, a preselected criterion needs to be established to determine what is: comparable due to having fairly similar properties or characteristics; and what is not comparable, due to having properties or characteristics that are too different from others. there are three problems that must be solved at this stage: how to define and delimit the temporal units as a basis to observe the past, or how periodisations can be devised; to see if the relations established between variables observed in time have some specificity to them; and how to include multicollinearity (morlino 2005: 140). that is, the presence of numerous factors that are strongly connected and have developed in parallel. 4) properties and variables. the fourth decision that the researcher must consider refers to the variables to be considered, that is, what is comparable and in what aspect. according to lijphart (1971), the number of independent variables (causes), dependent variables (effects) and intervening (control) variables to be analysed must be reduced to include only those that are critical to guide the comparative analysis. with regard to the number, attention must be paid to whether the cases are increased and when it is necessary to extend the time considered or, on the contrary, to decrease the number of variables analysed. ultimately, to obtain a good result, the theoretical conceptual apparatus must be well articulated and the research must be very clearly focused. even though research has been conducted previously, the latest investigations must increase the number of aspects to be considered. 5) tertium comparation. this involves knowing how to choose similar systems or different systems with the same or a common social need. in the first case, the researcher compares systems that are similar and close to each other in as many characteristics as possible, which allows a large number of similar variables to be set aside. the important thing here is to find entities that share all the same variables except for one, the specific variable that is of interest. in the second case, the researcher makes connections between systems that differ as much as possible in everything except for the phenomenon being investigated. comparative control refers to generalised hypotheses where the problem results from the exceptions. once these elements are identified, a second stage is finding the tools and different typologies that provide guidance as to how to make comparative research. undoubtedly, there is a long doctrine tradition about the different ways of comparing, although some prevail more than others according to traditional disciplines involved in human rights research. encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 28 ii. some methods and ‘trending topic’ examples in comparative research on human rights a brief review of the usual comparative methods in the field of human rights shows that the two most popular at present are legal comparison and the case study method. the first is traditionally employed in legal studies and the second has mostly been used in the social sciences, although, both can, and usually are, combined. basically, this is due to the fact that this area is made up of a normative corpus between different universal and regional systems of protection of human rights, or to its compatibility in its legal-political implementation at national level. despite its methodological imperfections and its difficulty, it can become a useful analytical tool either used on a complementary, combined or single basis, thanks to the phenomenon of the ‘europeanisation’ or ‘convergence’ of national public law and its policies (de cruz, 1999: 45). ii.1. the legal comparison method according to the above, legal comparison as a methodology of comparative analysis in the strict sense has not been used much since legislative positivism (alchourron and bulygin, 1971), which has traditionally set the roadmap for human rights research. several authors have catalogued or integrated different movements in legal comparison within the so-called ‘rebellion against formalism’ and the resistance to legislative positivism (moreno 2017, somma 2014: 60). both agree that the methodological component of legal comparison has a ‘parasitic’ character and lacks epistemological autonomy, as it constructs its methodologies by using and reformulating the contributions of other social sciences. traditionally, there are two variants associated with the comparative method in legal studies, where there is usually an opposition between the macro-comparison and the micro-comparison. the first deals with the study of legal systems from a global perspective, while the second deals with specific issues and institutions, and requires thorough knowledge of the applicable assumptions and norms. although up to five methods can be identified (van hoecke, 2015), there are no limitations, but several possible combinations: a) the functional method consists in examining a real social problem and the way in which it is resolved in different jurisdictions with similar or different characteristics and results. here the analysis of the cultural context is less profound, and, therefore, is more accessible and less complex for the average legal researcher. however, the explanatory power of this method is smaller, which makes it possible to constrain the comparison to ‘universal facts’ such as human rights. b) the analytical method involves analysing (complex) legal concepts and norms in different legal systems so as to detect common parts and differences. the use of ‘ideal types’ allows legal concepts, norms and institutions to be classified on a scale according to the degree of adaptation to the essential characteristics of the ‘ideal type’. tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 29 c) the structural method focuses on the framework of the law, or of reconstructed elements, by the use of an analytical approach. this is not the structure of each of the legal systems that are compared, but a way of understanding them. d) the historical method is almost always a necessary part of the methods used, as it seeks to understand the differences and commonalities between legal systems, and to determine whether there is a degree of affiliation to a deeply rooted tradition or, rather, to accidental historical events. e) the law-in-context method inevitably also has a historical dimension, but focuses on the current social context of the law, including culture, economics, psychology, religion, and others as appropriate. this involves studying a much broader context compared to the functional or analytical method, and using (results from) other disciplines. they are complementary and interdependent for a proper understanding of the law, and in the field of human rights this method is usually always available thanks to the results of research published by international agencies and organisations. most methods derived from legal comparison allow the researcher to move from a superficial level of comparison to a deeper level, but the choice of method or level of comparison will depend mainly on the project's research question or questions. naturally, different objectives often (albeit not always) involve different methods, and the current approach of seeking the best solution to the legal phenomenon under study is explicitly or implicitly the background to many comparative law research projects. somma usually discriminates (2014: 70) between the comparison that unites and that which divides by establishing four groups of methodological proposals or methods: structuralism, functionalism, comparative economic-legal analysis, and postmodern schools. this means that three predominant variants have been traditionally identified in interdisciplinary research on human rights. first, the comparison of various systems of norms or jurisprudence to determine the differences or the similarities between them in the resolution of a certain legal problem. in other words, pursuing the best solution to the problem. second, the comparative study between different state, local, regional or suprastate normative orders in order to determine what the causal relationships between them are. and, third, a somewhat comparative historical study in which the evolution of a given legal problem, concept or institution is discussed (morán 2002). these variants are consistent with the classification proposed by de cruz (1999: 7), which distinguishes between different roles. firstly, the comparison of foreign systems with the domestic system in order to ascertain similarities and differences with an objective and systematic analysis of the solutions to a specific legal problem provided by different legal systems. secondly, the investigation of the causal relationship between different legal systems; and finally, the comparison of the different developmental stages of legal systems and examining legal evolution generally according to periods and systems. encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 30 given the different methodological proposals, the central core of the criticism of legal comparison has been a deeply rooted and polarised theoretical discussion about its contours and nature. in other words, a debate as to whether it is an autonomous legal science, or rather, yet another method of research applicable to other settled disciplines. the first is more inclined to the self-identification of comparative law as a science and its self-presentation at the service of a theory of progress. and the second leaves aside the erroneous claims of legal comparison, which range from: being downgraded to being a mere technical translator; to being an improvement or modification of the national or international normative corpus, or merely a ratification of its virtues. as a scientific method, legal comparison is applicable to all disciplines in legal studies (constantinesco, 1981: 258-260). therefore, seeing it as a method is, in itself, a simplistic view of the methodology, which can be extrapolated to its purposes and object of analysis (sacco, 1994: 11). however, beyond the problematic issues that have marked the legal comparison, as örücü reminds us, nothing prevents making its threefold nature perfectly compatible. it can be the only way to observe the legal situation, a research method, and also one of the ways of approaching reality or social transformations (örücü, 2001: 17). therefore, it can be considered as a critical extraction of legal knowledge about human rights that allows a greater association to be made with positive observation, and to a lesser degree, with philosophical speculation (van hoecke, 2015; örücü, 2001: 14 15).ultimately, the use of legal comparison involves promoting law in action, and not just law in the books. ii.2. the case study method the main input of comparative analysis in political and social science is the diagnosis of social problems, the design of public policies, and the search for parameters (piovani et al. 2017). therefore, emphasis is placed on properties and objects, either through a quantitative or qualitative approach, or in the triangulation of both variables. briefly, in this field it is easier to systematise three approaches in compared or comparative analysis (della porta 2013: 211). first, a method with an experimental, statistical and comparative approach. experimental and statistical approaches are both very limited in the investigation of social phenomena, whereas the comparative approach deals with a small number of cases and is the preferred strategy for studying institutions and other macro-political phenomena. for instance, among others, it is relevant the collaboration between statisticians and other professionals (nonmathematical) in the field of legal comparative research on human rights, (jabine and claude 1992, spirer 2001). the three of them convert most of the variables into parameters in order to isolate them from the effects of the other variables. however, there is a certain terminological confusion about the terms ‘comparative method’ and ‘comparative analysis’, because sometimes they are used to refer to all three approaches, and at other times only to one of them. similarly, there are two other forms of comparison centred on properties or objects, which follow the classic distinction between quantitative and qualitative methods in social research. for example, comparative approaches that emphasise properties are tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 31 generally regarded to be part of a quantitative perspective, and those that emphasise objects are included in a qualitative perspective. nevertheless, depending on the period analysed, a synchronous comparison can be made if it is decided to consider different cases at the same time, while a diachronic comparison can be made when analysing the same case at different, successive times in order to see the influence of certain phenomena that have occurred, and observe their change over time. another typology determines that comparative analysis can be either close or remote. for the cambridge school, there only exists the application of the close comparative method in the case of countries belonging to the same civilisation that have reached an equivalent degree of economic social and political development; whereas the remote comparative method basically involves different objects of study for which similarities are to be found in the absence of an encompassing theory. however, in the practice of the social sciences two main approaches can be identified as been central within comparative research. one is variable-oriented comparative analysis, used to establish generalised relationships between variables, and another is a case-oriented analysis, which aims to understand complex units, consisting in making exhaustive descriptions of a few examples of the same phenomenon. the latter occupies a prominent place in human rights research, given its characteristics and the level of discussion of results (landman 2002). generally, the purpose of this comparison is based on the analysis of comparable data between two or more nations, and is usually based on either a ‘cross-national’ case study (kohn 1987) or on ‘cross-cultural’ case study. the typology of cross-national case studies is as follows: the nation as an object of study, the nation as the context of study, or the nation as a unit of analysis, or otherwise, it may be transnational. the typology of cross-cultural case studies is not a comparison between cultures, but a detailed description of a specific non-western culture. in fact, the case study method is expressly chosen because it is useful for generating hypotheses, or because it is crucial for either confirming or refuting a theory. when this is the case, it is clear that case analysis and comparative analysis methods are complementary ways of searching that reinforce each other. hence, the case studies in question must be implicitly comparative, even if they only have one variable. sartori (1991) and della porta (2013) argued that linking universal elements to particularities allows categories to organised along scales of abstraction governed by the rule of transformation in both ascending and descending directions. for the correct selection of cases, according to gerring (2001), different aspects must be taken into account: (a) plenitude: broad samples help specifying propositions; (b) boundedness: inclusion of relevant cases and exclusion of irrelevant ones; (c) comparability: possible similarity in some relevant dimensions; (d) independence: autonomy of the units; (e) representativeness: capacity to reflect the properties; (f) variation: spread of the scores encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 32 obtained; (g) analytic utility: methodological usefulness; and (h) replicability: possibility of repeating the model. although the single case study tends to predominate in human rights research, the gradually increasing availability of global data and national and regional reports showcases comparative research using methods to compare a greater or lesser number of countries (landman, 2002, andreassen, 2017). this contrast of data to select either a single or several cases usually requires a careful selection of research sources by researchers if they are only drawing from secondary sources rather than direct sources. for landman (2002, 922), comparing a greater or lower number of countries and the results expected are also clearly problematic issues in comparative policies. basically, by comparing a larger number of countries it is possible to ensure statistical control, limit the selection of countries under study, cover an extensive scope in order to have a good theoretical component and obtain noteworthy evidence, as well as to identify cases which deviate from those that follow a model or benchmark. in contrast, the advantages of a micro comparison include strengthening the theoretical construction, avoiding conceptual extension, and achieving an in-depth understanding of the matter in order to make a selective control of the most similar or different systems to promote a good contrast of contexts and responses. the weaknesses of macro-comparison are the availability of data, and the fact that, using a broader sample there is a very abstract level of generalisation, with a high time cost and waste of resources. this is not the case when reducing the amount of evidence and having restricted field work. ii.3. a practical example of applying the comparative perspective: the integration of migrants an illustrative example of the ‘infectious’ use of the comparative perspective when facing the thematic content on human rights is the integration of migrants within the study of international migrations. this area raises questions and provides some answers in connection to both the current and future scope of the comparative perspective and the interdisciplinary of human rights research. migrant researchers use comparative in various ways as identified before and bring insights from different disciplines. furthermore, they frequently develop different comparative research designs and use different (qualitative as well as quantitative) research methods. in addition, migration research was and regularly still is rather nationally oriented and researchers should go beyond a strictly national approach in the belief that cross-national comparison is and will continue to be important as international migration study. consequently, these involve the level of interdisciplinary and cross-national approach recommended in those miscellaneous studies that encompass different analyses: legal, political, sociological, anthropological and economic (martiniello 2013: 3; fitzgerald, 2012). by way of synthesis, the comparative method in the study of migrations in europe has had a delayed impact in both legal and social disciplines. and yet, significant literature has been produced from within european socio-political and anthropological studies that has made a contribution to the study of social migrations from a comparative tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 33 perspective. this contribution has been by means of a choice of antithetical compared models that have facilitated the knowledge of good practices and answers for intervention in host societies (arango 2012, king 2000), or through the selection of specific cities. broadly speaking, there are two major types of predominant comparisons. the first category includes those studies that compare the integration processes of the different groups of immigrants into the same institutional and political context of a nation or a city. these studies show that different groups of immigrants can follow different paths to achieve integration. they include the research by bonjour (2014), van oers (2011), among others. the second category of comparative studies examines the integration of the same groups of immigrants in different national, federal or local immigration contexts (joppke, seidle 2012, schain 2012). this group also includes the research by koopmans (2010) on the effects that integration policies and state welfare regimes have on the socioeconomic integration of immigrants in eight european countries. another study within this category delimits not only the spatial context but the ‘integrable’ subjects, focusing on the integration of the so-called second generations through a comparative analysis of 15 cities in eight different european countries (crul et al., 2012). with some exceptions, these studies have analysed integration as a national, regional or local compartment of their own, despite the progressive opening and implementation of european union law, which has determined the content, validity and direct effect of some decisive aspects of its articulation. a line of research that is becoming increasingly popular, based on the so-called ‘end of national models’ (jacobs and rea 2007, joppke, 2007, heckmann, schnapper, 2003 ), demands more critical observation to analyse the different implementation of the main integration programmes established at european level (freeman, 2004: 961). at the theoretical level, several authors (koopmans et al., 2005: 9, bertossi, 2009) have not only questioned the validity of these models for being mere ‘conceptual spaces’, but also have recommended not grouping countries along these ‘model’ dimensions. far from being homogeneous blocks, national models are in constant contradiction with social, political and institutional practices. while these are not seen as 'pathologies', they are a later construct that shows a high level of strategic ambiguity and can be easily manipulated by the different actors who seek different results on the object of study (bertossi, 2009). a polarised debate about the theoretical construction of these compared models has been increasing, because the convergence of integration policies has made the use of distinctive national models manifestly obsolete (joppke, 2007: 2). however, they have continued to be promoted by other studies, including those by jacobs and rea (2007), which have underlined the distinctive and continuous nature of european integration policies and the value of working with traditional classifications, due to their analytical potential over integration models (jacobs; rea 2007: 265). bertossi has successfully argued against this, by saying that it is much more problematic to prove their existence between countries grouped on the basis of the philosophies or cultures of national integration, and even more so based on models. basically, it is easy to conclude that these predetermined differences are explained by pre-established models of integration of encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 34 immigrants and citizens without accounting for the situation of migrants, the orientations of the policy, and the structure of public discourse in the different countries (bertossi, et al. 2012). consequently, based on the reconsideration or rejection of certain pre-established variables in integration models, international comparisons pose serious methodological problems, given the lack of adequate data (favell, 2003 ). in fact, different countries use different statistical categories, or even lack official data, and the composition of the immigrant population varies according to the countries, the types and the opportunities provided by integration models designed to properly addressing migratory flows (triadafilopoulos, 2011). again, in line with this trend, the existing approaches are largely general. as a result of the new requirements for civic integration being implemented, attempts have been made to categorise models that mostly limit themselves to a description, without establishing comparisons with other cases (brubacker, michalowski, et al. 2006; bauböck, collett, et al., 2006). this is also evident in the study of social welfare models which, according to freeman (1996), are inevitably excluding (koopmans 2010); and it also occurs in the construction of indicators that omit certain basic social protection rights, such as health care, education, housing and social support, and the differentiation of rights by categories of migrants. iii. a swot assessment of comparative legal research on human rights after a brief presentation of the different techniques and typologies to carry out a comparative analysis in human rights research, it is necessary to reflect on what the best method is for legal comparisons, and if a comparison in fact occurs. there is clearly a substantial number of decisions, tools and choices to be taken into account to design a comparative study, and even more so when it is a legal comparison. the interdisciplinary nature of human rights means that the risks involved are very different and highly interrelated. for example, when choosing the research question, it is important to adhere to specific, and precise criteria in terms of the countries, regulatory systems, cultures, societies and geopolitical contexts to be studied. an interest in a specific geographical or geopolitical context, family, legal branch can lead to putting any of those above the formulation of a research project, which can alter the sequence of tasks involved: research topic; working hypothesis; choice of countries; data collection. a method is a systematic and functional way of working to ensure the attainment of the end pursued, and the researcher has a duty to decide to what extent the categories used must be either inclusive, or narrow and discriminant. therefore, how, and why and for what purpose a study is conducted depends on the researcher's own experience. it cannot be said whether the concepts should be fine-tuned and the classification carried out before or after the selection of the cases or the temporal range to be analysed. and yet, different strategies may have been followed according to the specific method used within the comparative analysis selected. tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 35 in any case, methods do not exist in the abstract; rather, methods are chosen to best meet the objectives of the comparison, and no single method suffices. any comparison and, therefore, any comparative legal analysis in human rights research, must be more than an enumeration of and contrast between legal texts or instruments for the protection of human rights in different geopolitical contexts. paradoxically, there is more consensus as to what a comparative analysis is not, than as to defining what it is. this justifies the strong criticism it receives about what it is not. strictly speaking, comparing is not collecting norms on the object of study from all over the world with no connection between them other than the compiler, and no other justification than to seemingly deal with the same social event relevant to human rights. a comparative approach is not discriminating between comparative studies and those that are merely exegetical, nor is it simultaneously examining the differences and similarities, assuming that the objects to be compared are not totally identical or totally different. this would not be met by a parallel presentation of two or more systems, or two or more institutions belonging to different legal systems, as the intention to compare would be purely instrumental, and not a purpose in itself. similarly, the criteria indicated above would not be fulfilled by a mere analysis of textual data if the effects of the implementation of the rule are left aside, or the socio-cultural implications of language and its geographical variants are disregarded, by providing references to foreign authors who discuss the same topic and not making an effort to compare. ultimately, a legal comparison is not a search engine for models with the sole purpose of proposing possible reforms or valid parameters for the creation of a uniform regulatory framework. for example, legal transplants are more of an objective or a result than an actual comparative method. what seems to work well in a one regulatory system may not do in a different legal system due to the different contexts involved. hence, the mere fact of ‘copying’ or ‘emulating’ foreign legislation could hardly be considered a ‘method’ per se. this is typically an example of lack of method in comparative law (van hoejk 2015). a legal comparative method would not be taking the system or systems characteristic of a legal family as the most suitable and merely making a comparison of regulations, institutions, or jurisdictions. rather this try to assess the similarities of a given social problem or need, or of what would be the necessary political, regulatory and other kinds of interventions that should be adopted to obtain optimal results (cappelletti, 1994: 17). iii.1. strengths…. if the purpose is to use the legal comparative method on human rights to persuade, providing a catalogue of uncritical virtues and praise for a method that undoubtedly is characterised by a complex vision of the objects studied may be a misjudgement. the strengths are: (a) a dynamic, non-static vision. it provides a harmonic amalgam between the evolution and the diffusion of the object studied that makes it possible to ‘qualitatively’ contextualise the social situation under observation. the purpose is either to show encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 36 divergences and synergies, or to develop general propositions or hypotheses that can explain and describe future trends. (b) versatility and functionality. it raises interest in completing or seeking new angles of analysis to continue to critically observe and analyse (merryman, 1999). this means that the socio-legal reality can be contrasted or distorted, with the sole purpose of gaining a better understanding of the relationship between law and society, by apprehending all its complexity. (c) heterogeneous references and sources. this involves a greater effort when selecting the appropriate bibliography, not only by merely compiling literature but also through interviews with different stakeholders and agents that help to better contextualise the scope of the analysis. (d) a more factual, diachronic vision. this vision is at the same time synchronic, and provides further insight into the elements that de facto determine and hinder a greater drive for innovation based on the results obtained. it is therefore used to improve and consolidate knowledge of human rights and understand law in context. (e) development of the explanatory function. it sharpens the capacity of description and synthesis of differentiating and common elements. it seeks to explain both the differences and the similarities, exploring existing patterns and processes. iii.2. weaknesses…. the purpose of noting the weaknesses of legal comparative analysis is not to discourage its unequivocal methodological capabilities, but rather to bring them to the fore. in this way, they could be turned into opportunities for methodological improvement that minimise future threats through practice. identifying possible weaknesses is not an exhaustive task, but a reflexive act intended to explore its uses and the experience gained in the implementation of the comparative perspective in the shortand long-term. (a) sociolinguistic problems are among the most common problems that comparatists must face (sacco 1984: 17). it is reasonable to carry out a comparison on contexts, sources and systems in a language that is known to the researcher; otherwise there is a risk of showing various national data in parallel without addressing aspects that may arise from it. the doctrine basically relates this to the complexity in managing specific legal terminology or assessing cross-cultural systems by researchers from other countries (örücü, 2001: 57); (b) a difficult balance between practical and theoretical activity. as it provides a laboratory for the analysis of different issues that are treated as variables or cases that are juxtaposed, compared and contrasted for practical purposes, solely depending on the actual availability of data, the theoretical component may be neglected. tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 37 (c) it is an expositional resource rather than an explanatory one. it is one of the best ways to discover resemblances between similar and different legal systems or models is to explain similarities and even differences to construct theories to the extent that the comparison is a dialogue in and about a given phenomenon (örücü, 2001: 34). (d) independence. comparison and the comparative analyses have no subsistence in themselves, since the methodologies that they comprise can be extended to other disciplines. basically, they would be in terms of lege ferenda in that they make it possible to find more efficient or simply better answers to solve similar problems. (e) excessive purposes and expectations. sometimes research objectives can be too ambitious, due to a lack of awareness of the limits of all comparative research. (f) difficulty involved in making proper comparisons. this is often due to the complexity of concepts, and the abstraction levels, the collection of data, but also to the presence of phenomena of diffusion, imitation, importation and the like; (g) incommensurability. every empirical or normative concept is deeply and inextricably linked to the context in which it is produced, so that there must be a clear perception of the problems and the environment to which they refer or where they are applied (morlino, 2005). (h) conjunctural coincidence. this implies that any phenomenon under study can have different causes associated with it, which makes it more difficult to find a satisfactory explanation. some final reflections: dispelling false myths comparative research not only helps to explain something about the world, but also to predict and contrast future trends, past traces, synergies or even convergences that may be derived from more than one case within and outside a given field. therefore, the comparative process can make many important contributions to the generation of knowledge in both substantive and methodological analysis. although the action of comparing is an almost instinctive reflex, a comparison is only reflexive if it achieves a substantive and methodological balance. the comparative approach makes it possible to distort images in a way that other analytical perspectives would not allow, but without compromising the viability of an interdisciplinary analysis. the findings from research on human rights, and in particular, on the study of the integration of migrants, show relevant evidences that the comparative method is becoming increasingly appealing and established. however, there is still much to explore about the centrality of its methodological and epistemological approach, that is, the possibility of comparison in itself, the object of comparison and its role in interdisciplinary fields of research. it has been widely accepted that the epistemological and methodological dimension in political science and sociology has been more often encarnación la spina the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 38 used and has been more fertile, while its implementation in other fields, such as law, requires more sophisticated technical knowledge. in fact, the first barrier faced by legal researchers embarking on comparative legal research is the approach to methodological issues, which can easily cause them to become disoriented. basically, not all perspectives or comparative research approaches can be considered useful for a legal comparison in strict terms. the interdisciplinary nature of human rights also favours the case study method to the detriment of the legal comparison method. legal comparison is more rigid and cannot be limited only to the use of foreign law by legislators or courts, but also to the key doctrine and methodological questions and answers to identify explanatory factors, legal frameworks, and conditions for intra or inter-state application. however, the protection and monitoring of human rights inevitably merits the effort of engaging in comparison in order to obtain a reliable understanding of the context, or to identify possible gaps in their application. here the comparative approach is a key method for the analysis of the level of compliance with human rights in an increasingly fragmented and global legal framework. even though there is no agreement on the type of methodology to be followed, or even on the methodologies that could be used in the field of human rights. it is possible to combine different comparative methods, since they are complementary and not mutually exclusive. undoubtedly, the main priority of the comparative approach is its functionality and versatility to achieve total optimisation and a deep contextual understanding of human rights globally. the first myth to be dispelled is that it is necessary to have a complete ‘tool box’ or a strict methodological roadmap. the essence of the comparative method is engaging in contrast, in order to identify differences or similarities at the national, regional or supranational level. however, as sartori recalls, the theoretical component of the comparison is difficult to ‘manage’ without a compass (1994: 12) and sometimes, even having one, it is necessary to know how to orient and reorient oneself constantly. the most difficult task is knowing why a comparison is to be made. once this has been ascertained, one can identify an object for comparison, and address this issue on three phases (moran 2012: 525): 1) choosing phase: the importance of having prior knowledge about the object of comparison for the appropriate choice of the research topic. this requires developing the cognitive function. in other words, to investigate or analyse realities in different countries or contexts to better understand the complexity of the phenomena studied and the disparities between them. 2) descriptive phase: the parallel study of systems to discover their structure and how they operate to enhance the identifying function, and be able to explore analogies and differences, as well as attempting to provide tentative explanations for their nature or their internal logic. tools, gaps and false myths in comparative legal research on human rights the age of human rights journal, 13 (december 2019) pp. 21-43 issn: 2340-9592 doi: 10.17561/tahrj.n13.2 39 3) concluding phase: allows reinforcing both the explanatory function, by arguing which is the preferable explanation, and controlling equally plausible hypotheses. it also has a critical and applicative function, by (re)formulating conceptual interpretations based on doctrine and theories on the observed similarities and the differences. in contrast, the second barrier does not focus so much on what it is being compared, as this depends on the sources of comparison and the levels of abstraction with respect to the comparison. it rather focuses on how to compare, in order to understand the resources, skills and aptitudes necessary, and a sense of boundaries and moderation. undoubtedly, being strict with moderation can sometimes lead to reducing or limiting the initial research design, but ultimately, unlike other methods, it makes it possible to approach the complexity of the object of study from other angles that are not exhausted and can continue to be explored. it is undeniable that comparative analysis is a technique that involves significant risks, and therefore it is associated with a number of false myths. but this does not mean that comparison should not be used for fear of not being able to control the object of investigation or of misusing the variables to compare. rather, it is crucial to look for a reflective balance. an equilibrium that is necessary for the thesis of the incommensurability of concepts, which are so imbued with contexts, and so rooted in their respective culture, history and locality, that they are incommensurable from another methodological perspective. all that remains is to readjust the compass and take as a starting point that it is preferable to ‘compare adagio’ than not at all. research depends on the ability to achieve that the point of arrival is a rhythmic, synchronised and measured sequence, and therefore this comparison must be done ‘adagio ma non troppo’. references alchourron, c.e., bulygin, e. 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temporary protection in the context of turkey dikran m. zenginkuzucu1 abstract: the syrian civil war prompted a large number of people to flee their country and seek asylum in other countries, making turkey a leading host country with around 3.6 million of asylum seekers. syrian asylum seekers in turkey are under temporary protection regime. this article examines turkish temporary protection regime in comparison with international protection standards and human rights law, especially with the unhcr guideline and european union legislation on temporary protection and european court on human rights judgements. in this respect, this article argues that turkish legislation has met the fundamental requirements of international protection law and standards, however, still needs to be improved in some crucial areas. in this regard, the international protection law and the difference between the status of refugee and temporary protection is explored. subsequently, declaration of temporary protection in case of a mass-influx, the rights and freedoms covered under temporary protection, non-refoulement principle and termination of temporary protection regime under turkish temporary protection regulation are discussed and compared with the international standards. finally, some conclusions and recommendations for the improvement are deduced from this discussion. keywords: turkish law on foreigners and international protection, turkey’s asylum system, turkish temporary protection regime, syrian asylum seekers in turkey, international protection. summary: 1. introduction. 2. history of international protection law. 3. the core of international protection law. 3.1. definition of the term ‘refugee’. 3.2. negative protection of human rights. 3.3. principle of ‘non-refoulement’. 4. international protection and temporary protection. 4.1. scope of temporary protection. 4.2. obligations of the host states towards persons under temporary protection. 4.3. implementation of the obligations in turkey and rights of asylum seekers under temporary protection. 4.4. non-refoulement. 4.5. termination of temporary protection. 5. conclusion. 1. introduction one of the most crucial and increasingly worsening problem of international society is still the situation of those people who are forced to immigrate because of wars, religious or ethnic conflicts, political pressures, economic demolitions, climate 1 assoc. prof. dr. istanbul esenyurt university, faculty of business and administrative sciences, department of political science and international relations (dikranzenginkuzucu@esenyurt.edu.tr). https://orcid.org/0000-0002-4521-4868. in the first half of the 20th century, the human history witnessed two ever most violent and cruel war and millions of defenceless people have become homeless. hannah arendt (1976), one of the most impressive thinkers of the previous century, was highly amazed when she perceived about unmerciful treatment that the refugees had faced after world war i. these unfortunate people had lost their human rights, perceived and allegedly claimed as inalienable and untouchable. famous italian thinker giorgio agamben (1998) tried mailto:dikranzenginkuzucu%40esenyurt.edu.tr?subject= https://orcid.org/0000-0002-4521-4868 a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 386 change and environmental diseases or others. as of december 2017, the united nations high commissioner for refugees (unhcr, (2018) reported that 74.8 million people worldwide are seeking resettlement. turkish directorate general of migration management (tdgmm, (2020), on the other hand, reports that there are 3,643,769 syrian nationals hosted in turkey as of 6 january 2021. in this article, first, the history and context of the international protection law will be evaluated. secondly, i will argue that international refugee law consists of three pillars. furthermore, test of three pillars will be applied to international standards and turkish legislation on temporary protection. finally, i will conclude with some suggestions on the improvement of the system. 2. history of international protection law the efforts for concluding an international legal instrument for the status and protection of refugees has first introduced in the era of the league of nations to provide them with a legal status, ensure appropriate behaviour against them and protect their human rights. however, it has been unfortunately far from establishing a permanent and satisfying protection system (unhcr, 2011a). as the refugee problem accelerated after world war ii, one of the first task of the united nations (un) general assembly was the adoption of the statute of unhcr on 14 december 19502. as soon as the office of unhcr was established as of 1 january 19513, a conference of plenipotentiaries took place in geneva, switzerland on 25 july 1951 and adopted the text of a convention defining standards for the treatment of refugees on 28 july 1951 (unhcr, (1951). as a result, the convention relating to the status of refugees (hereinafter 1951 convention) was adopted by the united nations (un) general assembly with the status of the unhcr on 14 december 1951 and opened to the signature of the member states. the 1951 convention, defining the category of ‘refugee’ and setting down their rights as well as the obligations of states, entered into force on 22 april 1954. indeed, art 1/a (2) of the 1951 convention initially restricted its applicability to persons who had become refugee due to the events occurring before 1 january 1951. the convention also introduced an alternative of geographical limitation such as each contracting state shall make a declaration specifying if it would apply the 1951 convention for the events occurring only inside europe or everywhere. a protocol relating to the status of refugees signed on 31 january 1967 and entered into force on 4 october 1967 (hereinafter 1967 protocol) broadened the applicability of the 1951 convention by eliminating temporal and geographical limitations unless a contracting to clarify hannah arendt’s confusion with reference to foucault’s arguments. in the modern era, where the human being has become the subject of politics, people cannot enjoy their rights connected with the sovereign power –or national sovereigntywithout possessing a ‘tie of citizenship’, which attaches the individual to the ‘nation’. however, if ‘human rights’ were a formulation for all human beings without limitation of time or space, the groups who should enjoy these rights, should be those who were wronged the most, namely refugees. 2 un ga res. 319 (iv), 3 december 1950. 3 un ga res. 428 (v), 14 december 1950 annex. dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 387 state might maintain a declaration about geographical limitation made under art 1/b (1) of the 1951 convention.4 as of 25 august 2018, 145 states are party to the 1951 convention and the 1967 declaration. turkey as well is a contracting party to the 1951 convention5 and the 1967 protocol.6 turkey made a declaration under art 1/b of the 1951 convention according to which it applies the convention only to persons who have become refugees because of ‘events occurring in europe before 1 january 1951’. by a declaration with the instrument of accession for the 1967 protocol, turkey maintained the geographical limitation on the 1951 convention. turkey adopted its legislation on international protection of refugees under the law on foreigners and international protection (lfip).7 it is obvious that lfip is drafted with the suggestions and promotions of the european union (eu) as a part of turkey-eu membership negotiations as a part of eu enlargement policy (ec, 2013a,b). part three of the lfip codifies types of international protection, general procedures on applications, administrative reviews and judicial appeal, exclusion, termination and cancellation of international protection, rights and obligations as well as the status of temporary protection. hereafter, lfip and related turkish legislation will be assessed in terms of international protection law (ineli-ciger, 2014, p. 28-36; rygiel, baban & ilcan, 2016, p. 315-320; dardagan kibar, 2013, p. 109-128; soykan, 2012, p. 38-47; acikgoz & aniker, 2014; dalkiran, 2016; aida, 2020). 3. the core of international protection law the essentials and three pillars of 1951 convention as amended by 1967 protocol8, which constitute the basis of international refugee law, may be cited as follows: • definition of the term ‘refugee’ and its scope • negative protection of the rights and freedoms of refugees • principle of ‘non-refoulement’ 3.1. definition of the term ‘refugee’ art 1/a (2) of the 1951 convention gives a clear definition of the term ‘refugee’ which is widely accepted in international law. that is; any person who: 4 art 1 (3) of the 1967 protocol is as follows; ‘the present protocol shall be applied by the states parties hereto without any geographic limitation, save that existing declarations made by states already parties to the convention in accordance with article 1 b (1) (a) of the convention, shall, unless extended under article 1 b (2) thereof, apply also under the present protocol.’ 5 signed: 24 august 1951, og no 10898 dated 5 september 1961. ratification: 30 march 1962. 6 council of ministers decree no 6/10266 dated 1 july 1968, og no 12968 dated 5 august 1968. accession: 31 july 1968. 7 law no 6458 dated 4 april 2013, og 28615 dated 11 april 2013. 8 hereinafter 1951 convention means 1951 convention as amended by 1967 protocol unless otherwise stated. a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 388 ‘[o]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’ in this respect, the ‘refugee’ is a person who has been forced to quit the country of his nationality or his former habitual country and is unable or unwilling to return to it because of a well-founded fear of being persecuted due to his or her; • race • religion • nationality • membership of a social group • political opinions the 1951 convention gives a closed-ended five grounds, in other words ‘five sins’9 against humanity, of seeking asylum as ‘refugee’ in a contracting state. in this term, for example, the immigrants who are the victims of an environmental disaster are not entitled to recourse to the status of refugee (black, 2001). however, it does not certainly inhibit a country to make a larger definition containing at minimum the abovecited five ground. furthermore, the status of refugee is an individual status and needs to be assessed and recognised on a case-by-case basis by the host state. there is no recognition or acquisition in-group of the status of refugee in international law. in asylum case, international court of justice (icj) explained that; ‘international law does not recognize any rule of unilateral and definitive qualification by the state granting diplomatic asylum’ and ‘a decision to grant diplomatic asylum involves a derogation from the sovereignty of that state… such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case’.10 in these excerpts, the icj reconfirmed that the granting of territorial asylum is a right, not an obligation of states, and it is possible, in principle, to enquire whether the potential protective state is willing to recognise the individual as a refugee case by case (värk, 2012). therefore, this is not an available procedure and obligation for the states to cope with the mass-influx. lfip, on the other hand, formulates three status of ‘refugee’, namely refugees, conditional refugees and subsidiary protection. art 61 describes ‘refugees’ as follows: 9 not being a legal term, the expression ‘five sins’ is used by the author to refer to the crimes committed by the states as per referred by the 1951 convention, namely discrimination, pressure and condemnation based on racial, religious, nationality or ethnicity, membership to a social group and political opinions, which give rise to millions around the world becoming refugees and asylum seekers. 10 asylum case, colombia v. peru, judgement of 20 november 1950, icj reports (1950), 274-275. dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 389 ‘a person who as a result of events occurring in european countries and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his citizenship and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…’ lfip obviously borrows the definition of the 1951 convention with a geographical limitation in accordance with its declaration to the convention. thus, turkey undertakes to grant refugee status for those who have left their country in europe forcibly for one of the above-cited five reasons. art 62 constitutes a transitory regime, namely conditional refugees, for asylum seekers from outside european countries due to five cited reasons. those people are permitted to reside in turkey temporarily until they are resettled in a third country. art 63, furthermore, is granting a ‘subsidiary protection’, which is a complementary protection regime, to a foreigner or a stateless person, who could be qualified neither as a refugee nor as a conditional refugee, however who would, ‘if returned to the country of origin or country of [former] habitual residence: a) be sentenced to death or face the execution of the death penalty; b) face torture or inhuman and degrading treatment or punishment; c) face serious threat to himself or herself by reason of indiscriminate violence in situations of international or nationwide armed conflict’. art 1/c of the 1951 convention addresses four bases for the cessation of the status of refugee as; a) re-availment of national protection; b) re-acquisition of nationality; c) acquisition of a new nationality; and d) re-establishment in the state of origin. this formal cessation depends on voluntariness and intention of the refugee, which requires careful application of the procedures by the competent authorities. art 1/c (5 & 6) continues with the cessation condition when ‘the circumstances in connection with which one has been granted the status of refugee have ceased to exist and the refugee continues to refuse to avail himself of the protection of the country of his nationality’ or ‘if he is stateless return to the country of his formal habitual residence’. this is an involuntary situation prosecuted notwithstanding the intention of the refugee and depends on the interpretation of the current situation in the corresponding country. even though contracting states have the authority to invoke art 1/c (5 & 6), it is more convenient to make or follow an international determination on the situation in a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 390 the corresponding country. in such a circumstance, for example, the unhcr may be expected to make a declaration that ‘its competence ceases to apply regarding persons falling within situations spelled out in the statute’ (fitzpatrick & bonoan, 2003). art 85/1 of the lfip requotes mot-à-mot art 1(c) of the 1951 convention. for the interpretation of the cessation of the circumstances in the former country art 85/2 provides that: ‘in the assessment under subparagraphs (d) and (e) of the first paragraph, it shall be considered whether the circumstances upon which the status was granted no longer apply or have changed significantly and permanently’. art 1/f of the 1951 convention states that the international protection as determined in the mentioned convention shall not be applied to ‘any person who has committed a crime against peace, a war crime or a crime against humanity as described in international instruments’11, a serious non-political crime or has been guilty of acts contrary to the principles and purposes of the un charter. lfip art 64 excludes those persons from international protection. 3.2. negative protection of human rights human rights may be described briefly the rights alienable and untouchable of every human being regardless his/her nationality, race, gender, language or religious, social, ethnical or other attributes, without which a human being may not be supposed to have an honourable life. international human rights law as well as humanitarian law prohibit the limitation of some core rights even in war or other extraordinary times.12 those rights and freedoms are mainly the right to life, prohibition of torture and degrading treatment or punishment, prohibition of slavery, freedom of thought, conscience and religion, and no punishment without law. in this respect, every refugee or stateless person is entitled to above cited rights and freedoms without any exceptions wherever they reside. furthermore, the 1951 convention provides in art 7(1) that; ‘except where this convention contains more favourable provisions, a contracting state shall accord to refugees the same treatment as in accorded to aliens generally’. in this respect, a refugee is entitled at minimum to the same rights and treatments as an alien who is deemed as lawfully staying in the territories of the contracting state. on the other hand, the 1951 convention provides the refugee with some rights equal to a national. in this respect, the 1951 convention enumerates the rights and freedoms of refugees in three categories (table 1): 11 the crimes under the jurisdiction of international criminal court established under rome statute (2002). art 89/1 of the rome statute requires contracting parties to arrest and surrender persons upon the request of the court. 12 un international covenant on civil and political rights (1966) art 4; european convention on human rights (1950) art 15; for the prohibition in war time see legality of the threat or use of nuclear weapons, advisory opinion of 8 june 1996, icj reports 1996, 256; ‘the court observes that the protection of the international covenant on civil and political rights does not cease in times of war, except by operation of art 4 of the covenant whereby certain provisions may be derogated from in a time of national emergency.’ dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 391 some rights and freedom that have relation with sovereignty rights such as acquiring immovable or right relating political activities such as right to association are limited, whereas the rights and freedoms which are firmly attached to one’s personality and existence such as freedom from discrimination, freedom of religion, intellectual property rights, right to fundamental education and some social rights, which are assumed that one needs to survive in an human condition shall be equal to a national of the country. lfip itself regulates the right of labour (art 89/4), right to fundamental education (art 89/1), social assistance (art 89/2), freedom to settlement and travel (art 82), identity papers (art 83) and travel documents (art 84) in accordance with the 1951 convention. as amended in 201413, turkish constitution art 90 (5) provides that: ‘international agreements duly put into effect have the force of law… in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail’. in this respect, if there is an indeterminate area or gap in domestic legislation on international protection or even there is conflict between the 1951 convention and domestic legislation, the regulations of the 1951 convention prevail and are directly applicable in the case of a refugee as described in art 1 of the 1951 convention with the declaration on geographical limitation of turkey. on the other hand, it will be more 13 law no 5170 dated 7 may 2014, og 25469 dated 22 may 2014. table 1. rights and freedoms in 1951 convention as favourable as possible not less favourable than that accorded to aliens as a national of the country special regulations acquiring property (art. 13) freedom from discrimination (art. 3) administrative assistance (art. 25) housing (art. 21) freedom of religion (art. 4) identity papers (art. 27) right to association (art. 15) intellectual and industrial property rights (art. 14) travel documents (art. 28) labour rights (art. 17) access to justice (art. 16) transfer of assets (art 30) right to education high education (art. 22/2) right to education fundamental education (art. 22/1) exception from prosecution for unlawfully entrance in the country (art. 31) right to settlement and travel (art. 26) rationing (art. 20) naturalisation (art. 34) social aid (art. 23) social security (art. 24) fiscal charges (art. 29) a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 392 appropriate that lfip codifies itself especially the rights and freedoms of refugees, which shall be equal to a national and other special regulations for refugees recognised in the 1951 convention. 3.3. principle of ‘non-refoulement’ one of the main protection under the umbrella of international refugee law is the principle of ‘non-refoulement’ as it is provided in art 33/1 that preclude contracting states from returning a refugee to the countries where he or she may face persecution or execution due to his/her race, religion, nationality, membership of a social group or political opinion. the scope of art 33/1 of the 1951 convention covers a person who already is granted refugee status by a contracting state. moreover, refugees are free of ‘refoulement’ only due to threat to his/her life or freedom due to the ‘five sins’. on the other hand, art 33/2 excludes a refugee who has committed a serious crime or act that constitutes reasonable grounds for regarding as a danger to the security of the host country. art 33/2 seems to allow host states to deport and remove refugees to their former country even if there is a danger as described in art 33/1. although it is argued that the non-refoulement principle as provided by art 33 of the 1951 conventions shall not cover the possibility of mass migrations across frontiers and, it is not usually practical for a country overwhelmed by a mass influx of refugees to engage in this kind of detailed, case-by-case analysis of risks to its own well-being. governments therefore wanted the assurance that in truly exceptional circumstances, they could engage in peremptory refoulement to the extent truly necessary to protect their most critical national interests (hathaway, 2005, p. 357). lfip make a broader regulation than the 1951 convention with respect to the principle of ‘non-refoulement’. art 55 of the lfip prohibits the removal of foreigners in general; a) when there are serious indications to believe that they shall be subjected to the death penalty, torture, inhuman or degrading treatment or punishment in the country to which they shall be returned to; b) who would face risk due to serious health condition, age or, pregnancy in case of travel; c) who would not be able to receive treatment in the country to which they shall be returned while undergoing treatment for a life-threatening health condition; d) victims of human trafficking, supported by the victim’s assistance programme; e) victims of serious psychological, physical or sexual violence, until their treatment is completed. lfip provides that the assessment of the persons within the scope of the principle of ‘non-refoulement’ shall be done on case-by-case basis and these persons may be asked to reside at a given address and report their presence to the authorities. art 46/c of the lfip provides them with a humanitarian permit by the governorates with a maximum renewable one-year period. on the other hand, the principle of ‘non-refoulement’ in turkish legislation is wider than refugee law. turkey is a party to the european convention dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 393 on human rights (echr) and is bound by the definition and application of the principle of ‘non-refoulement’ in the echr. in ahmed v. austria case14, sharif hussein ahmed who is a somali national, left somalia and reached the vienna airport in october 1990, after which he requested a refugee status by reason of fear of being arrested and executed because his relatives were members and sympathizer of united somali union, an opposite political group. he was granted refugee status in 1991. however, the graz regional court sentenced him to two and a half years imprisonment for attempted robbery in 1993 and as a result, the graz federal court ordered the forfeiture of his refugee status in 1994. in april 1995, the federal refugee office declared the proposed expulsion of the applicant lawful, even if he risked persecution in somalia, because of his tendency toward aggression. the applicant’s appeal was dismissed. european court of human rights (ecthr) considered the application in terms of art 3, of the ecthr relating right to life as well as art 5 relating right to liberty and security and art 13 relating right to an effective remedy. the court agreed that the applicant’s deportation to somalia would lead to the applicant facing a serious risk of treatment contrary to art 3. therefore, his deportation would constitute a breach of art 3 if he faced a serious risk of being subjected there to torture or inhuman or degrading treatment, and that this conclusion on the absolute nature of art 3 was not invalidated by the applicant’s criminal conviction or the lack of state authority in somalia at the time. in this respect, echr provides that contracting states shall observe the right to life and right to be free of torture and degrading treatment of every person within its jurisdiction without derogation and this observance includes the principle of ‘non-refoulement’. the judgement of the court is based on the rule of non-derogation in all cases and situations from the essential human rights as right to life and prohibition of torture and degrading treatment.15 un international covenant on civil and political rights also contains the same rule of non-derogation from rights to life and prohibition of torture and degrading treatment. in this respect, the same obligation of ‘non-refoulement’ shall be valid for all party states to the un covenant. un human rights committee and un committee against torture also, in their turn, perform a test of the rights to life and prohibition of torture and degrading treatment for the communication before it on the decisions of deportation.16 a further consideration on the principle of ‘non-refoulement’ which broadening its application beyond the formulation of art 33 of the 1951 convention is that the principle of ‘non-refoulement’ attained jus cogens nature in international law and have been accepted 14 ahmed v. austria, application no 25964/94, judgement of 17 december 1996, par 46. 15 also see. soering v. uk, application no 14038/88, judgement of 7 july 1989, par. 111; chahal v. uk, application no 22414/93, judgement of 15 november 1996, par. 80; h.l.r. v. france, application no 24573/94, judgement of 29 april 1997, dissenting opinion of judge pekkanen, par. 4. vilvarajah and others v uk, application no 13163/87,13164/87, 13165/ 87, 13447/87, 13448/87, judgement of 30 october 1991; mamatkulov and askarov v turkey, application no 46827/99, 46951/99, judgement of 4 february 2005. 16 human rights committee, general comment no. 31 [80], the nature of the general legal obligation imposed on states parties to the covenant. 29 march 2004, par.12; human rights committee, a.h.s. v denmark, application no 2419/2014, 28 march 2017, par. 11.2; committee against torture at, g.r.b. v. sweden, application no 083/1997, 15 may 1998), par. 6.7. a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 394 by the international community as a whole (riyanto, 2010: 742-749; costello & foster, 2016: 272-327. allain, 2001; goodwin-gill & mcadam, 2007). on the other hand, some scholars argue that non-refoulement principle constitutes a part of customary international law (bruin & wouters, 2003), whereas others claim that the non-derogatory status of the prohibition of torture raises a peremptory character to the principle of non-refoulement (dugard & van den wyngaert, 1998, p. 198; lauterpacht & bethlehem, 2003, p. 163). 4. international protection and temporary protection the protection regime established by the 1951 convention has some inconsistencies that greater number of states are looking for implicit withdrawal of their duties and obligations under international refugee law and dramatically fewer asylum seekers today have access to available protection. indeed, a restrictive and selective refugee policy is not a new trend in western countries, which try to keep problems away from their borders and expect the rest of the world to play host to refugees (chimni, 2000). another fundamental shortcoming of the international refugee law is the individuated state responsibility under which the state responsibility towards refugees is based primarily on the relative ability of the states to control their borders (hathaway, 2001). a further issue is arising from the individualistic character of the refugee process, which may render the process not applicable, at least effectively and duly, in a mass influx. in addition, because of the closeended definition of refugee in international law, victims of complex contemporary social and political problems as well as environmental disasters may fall outside international protection. in this respect, temporary protection has been considered as an exceptional measure and a pragmatic tool to address particular situations of large-scale influx where national asylum systems may be overwhelmed (unhcr, (2000). temporary protection regime has no common and agreed definition under international law and has different meanings and applications depending on the context and countries. most frequently, it is understood as a short-term emergency response to a ‘mass influx’ of asylum seekers to diminish the gravity of the circumstance where it is difficult to handle the mass movement and make an effective distinction between asylum seekers and others (edwards, 2012). thus, two faces of temporary protection are as follows: first, in a positive way, expand emergency humanitarian assistance and ameliorate the situation of masses who unfortunately do not fall into the scope of the 1951 convention. secondly, temporary protection may be suspiciously used by some countries as a toll of displacing the regime and protection under international refugee law and avoiding from their corresponding responsibilities (fitzpatrick, 2000). as a result of several mass influx caused by armed conflicts as well as social and political disturbances, organization of african union (oau) expanded the definition of ‘refugee’ in art i/2 of oau convention governing the specific aspects of refugee problems in africa17 as follows: 17 adopted on 10 september 1969 by the assembly of heads of state and government. cab/leg/24.3. entered into force on 20 june 1974. dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 395 ‘every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence to seek refuge in another place outside his country of origin or nationality’. another massive flight has been witnessed in 1970’s and 1980’s from southeast asia country in political and social disruptions. especially in the flows from vietnam, laos and cambodia, there were many persons falling within the scope of the 1951 convention, whereas many others seeking to escape with fear and anxiety of the situation in their home country torn by armed conflicts (fitzpatrick, 2000). in a similar way, organisation of american states declared that; ‘in view of the experience gained from the massive flows of refugees in the central american area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region’.18 in the early 1990’s, european states found themselves in an unusual flow towards their borders from former yugoslavia. european countries responded this migration crisis by favouring temporary protection in place of granting refugee status and durable asylum and many countries introduced their temporary protection policies and instruments (mansouri, leach, & nethery, 2009, p. 136) and adopted minimum standards for giving temporary protection in the event of a mass influx.19 the ongoing civil war in syria resulted with mass influx to neighbour countries as well as turkey, having the longest border with syria. consequently, turkey welcomed millions of syrian citizens into its territory. as mentioned above, turkey made a declaration to the 1951 convention and put a geographical limitation. therefore, turkish legislation does not recognise asylum seekers moved because of events occurring outside europe as refugee. in this circumstance, turkey allowed the mass influx from syria in the cadre of temporary protection and adopted a temporary protection regulation (tpr) in 201420 in accordance with art 91 of the lfip. it is mentioned above that the absence of an international definition and regulation, the extension of temporary protection regime compromises a hidden risk of arbitrariness and abuse in a way to narrow the rights of asylum seeker and forced migrants. in this respect, corresponding efforts towards defining and establishing minimum treatment standards towards displaced persons under temporary protection has been included in the agenda of several institutions. the eu has established a common european asylum system (ceas) which is strengthened in 2020 (eu, 2020, p. 105). the eu directive on common procedures for granting and withdrawing international protection21 recognizes 18 cartagena declaration dated 22 november 1984 art iii/3. 19 european union: council of the european union, council directive 20 01/55/ec of 20 july 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member states in receiving such persons and bearing the consequences thereof, 7 august 2001, oj l.212/12-212/23; 7.8.2001, 2001/55/ec [online]. available at: http://www.refworld.org/docid/3ddcee2e4.html (accessed 28 august 2018). 20 council of ministers decree no 2014/6883 dated 13 october 2014, og no 29153 dated 22 october 2014. 21 european union: council of the european union, council directive 2013/32/eu of 26 june 2013 on common procedures for granting and withdrawing international protection (recast), oj l.180/60; 29.6.2013 [online]. available at: https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32013l0032&from=en (accessed 18 march 2021). http://www.refworld.org/docid/3ddcee2e4.html https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32013l0032&from=en a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 396 refugee and subsidiary protection status for asylum seekers in conformity with art 1 of the 1951 convention. furthermore, the council of eu adopted a directive (hereinafter ec directive) on minimum standards for giving temporary protection in 200122. furthermore, the unhcr published a ‘guideline on temporary protection or stay arrangements’ (hereinafter guideline) in 2014 (unhcr, (2014). the european council (ec) proclaimed that ‘cases of mass influx of displaced persons who cannot return to their country of origin have become more substantial in europe in recent years. in these cases, it may be necessary to set up exceptional schemes to offer them immediate temporary protection’ and ‘it is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the member states in receiving and bearing the consequences of receiving such persons’ (ec directive, preamble 2 and 8). the european council further provided that; ‘this temporary protection should be compatible with the member states' international obligations as regards refugees’ (ec directive, preamble 10). the unhcr, on the other hand, set forward the aim of its guideline as ‘to guide and assist governments in the development of temporary protection or stay arrangements (tpsa’s) as responses to humanitarian crises and complex or mixed population movements, particularly in situations where existing responses are not suited or adequate’. in this regard, we may deduce that developing international understanding on temporary protection in international arena is to deliver emergency humanitarian assistance and expand the coverage of at least minimum standards of international protection to those people who have been forced to leave their country and seek asylum or temporary sanctuary in another country because of violence or indispensable reasons they had faced in their home country. in this term, we may assume that the aim of temporary protection is to widen the scope of international protection and cover those people who do not fall into the frame of the 1951 convention until they are qualified for granting ‘refugee’ status or their return. as a result, temporary protection is expected to provide a protection at a satisfactory level of the three pillars of international refugee law. thereafter, we will consider the coverage of temporary protection regime in the context of three pillars of international refugee law. 4.1. scope of temporary protection according to art 2 of the ec directive, the subjects of temporary protection regime, ‘displaced persons’ in other words, are: ‘[t]hird-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of art 1a of the geneva convention or other international or national instruments giving international protection, in particular: 22 see fn 19. dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 397 (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights’ as referred in paragraph 9 of the guideline, the unhcr, in its turn, encourages tpsa’s particularly as a suitable response to: (i) large-scale influxes of asylum-seekers or other similar humanitarian crises; (ii) complex or mixed cross-border population movements, including boat arrivals and rescue at sea scenarios; (iii) fluid or transitional contexts [e.g., at the beginning of a crisis where the exact cause and character of the movement may be uncertain, or at the end of a crisis, when the motivation for departure may need further assessment]; and (iv) other exceptional and temporary conditions in the country of origin necessitating international protection and which prevent return in safety and dignity.’ both definitions are intended to provide urgent measures in case of a mass influx to the people who may possibly fall into the scope of the 1951 convention for the normalisation of the circumstance at least until the end of danger and threat towards their life and human dignity. in this sense, these regulations are not able to cover new threats not mentioned in the 1951 convention towards people under the influence of climate change and victims of probable environmental disasters. according to the unhcr executive committee; ‘the asylum seekers forming part of these large-scale influxes include persons who are refugees within the meaning of the 1951 united nations convention and the 1967 protocol relating to the status of refugees or who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country’ (unhcr, (1981). on the other hand, the unhcr recognizes the risk of displacement due to climate change and calls all concerned parties to work together and cooperate for the available responses to climate-related displacement which ‘need to be guided by the fundamental principles of humanity, human dignity, human rights and international cooperation’ (unhcr, 2011b). lfip art 91/1 describes temporary protection as follows; ‘temporary protection may be provided for foreigners who have been forced to leave their country, cannot return to the country that they have left, and have arrived at or crossed the borders of turkey in a mass influx situation seeking immediate and temporary protection’. tpr subsequently defines its objective in art 1 as: ‘to determine the procedures and principles pertaining to temporary protection proceedings that may be provided to foreigners, who were forced to leave their countries and are unable to return to the countries they left and arrived at or crossed our borders in masses to seek urgent and temporary protection and whose international protection requests cannot be taken under individual assessment; to determine proceedings to be carried out related to their reception to turkey, their stay in turkey, their rights and obligations and their exits from turkey, to regulate the measures to be taken against a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 398 mass movements, and the provisions related to the cooperation between national and international organizations’. in the words of turkish legislation on temporary protection, the scope of the reasons and circumstances, which may force people to leave their home country in mass and seek an urgent protection, is open-ended. in this sense, environmental or natural disasters and other reasons may be considered a valid and legitimate reason for a mass influx of migrants to arrive or cross turkish border. the authority to decide whether a mass influx situation necessitates urgent protection and announce a decision of temporary protection belongs to the council of ministers upon the proposal of the ministry of interior affairs (tpr art 9). accordingly, the council of ministers has the authority to make decision on persons who will be covered under temporary protection as well as the commencement, duration, extension or termination of temporary protection (tpr art 10). turkish legislation does not refer to an international call for declaration of temporary protection, however, lfip art 92 allows the ministry of internal affairs to cooperate with the unhcr, the international organisation for migration, other international organisations and non-governmental organisation for issues related to the procedures and implementation of temporary protection. on the other hand, temporary protection shall not be granted or shall be cancelled with respect to the same reasons as exclusion from international protection (tpr art 8): if a person who benefits from temporary protection, leaves turkey in his/her own will, avails the protection of a third country, is admitted to a third country under humanitarian reasons or resettlement, and is deceased (tpr art 12). art 5/1 of the tpr provides non-punishment of illegal entry and stay in case of a mass influx taken under temporary protection by the council of ministers. 4.2. obligations of the host states towards persons under temporary protection temporary protection procedures are naturally different from individual international protection procedures. in this respect, a host country is allowed to take some inevitable measures and limitations on the rights and freedoms of asylum seekers in mass as long as the situation necessitates. it is necessary to ensure the order and security in the borders where asylum seeker foreigners arrive in the country. eventually, documentation of all persons may take time. it is also compulsory to separate members of armed forces from civilians. in order to accomplish the necessary entrance procedures asylum seekers may be detained in determined places for a limited time. ultimately, demographic and economic features as well as national security, public order and public health considerations of a host country may impose some regulation and limitation in the settlement of high number of asylum seekers. however, the measures and limitations shall not be arbitrary but in conformity with justifiable reasons without infringing the essence of the fundamental rights and freedoms. as there are no universal standards of temporary protection yet and temporary protection regime may vary in different countries or contexts, the content and procedures of temporary regimes also may be inconsistent. the unhcr guideline requires that tpsa’s shall envisage some minimum treatment standards in line with international human rights developments which also guarantee rights and freedoms envisaged for the survival of a refugee in a humane condition such as freedom from discrimination, prohibition of degrading treatment, housing, fundamental dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 399 education, access to health and other basic services as well as self-sufficiency and work opportunities (guideline 16). ec directive enumerates the obligations of the member states towards persons enjoying temporary protection. beside others, ec directive guarantees freedom from discrimination (preamble), fundamental human rights (art 3), right of residence permit (art 8), right to self-employment or opportunity to work, and access to social security (art 12), right to housing (art 13), and fundamental education (art 14). echr provides that the states shall recognize and secure the rights and freedoms enumerated in the convention to all individuals within the jurisdiction regardless their citizenship, nationality or legal status. furthermore, the jurisdiction of the ecthr underlines especially some rights for the asylum seekers such as, among others, the right to marry23 and family reunification24, employment25, education26, housing27, healthcare28, social security and social assistance29 to restrain the states to differentiate between their nationals and asylum seekers, and to allow the asylum seekers to survive and maintain their economic and social existence. 4.3. implementation of the obligations in turkey and rights of asylum seekers under temporary protection tpr provides persons under temporary protection with right to health, education, stay in the country, accommodation, access to labour market, social assistance, interpretation and similar services (art 26 – 32) which covers main obligations of host states as 23 among others see o’donoghue and others v. the uk, application no. 34848/07, judgement of 14 december 2010; schembri v. malta, application no. 66297/13, judgement of 19 september 2017. 24 among others see darren omoregie and others v. norway, application no. 265/07, judgement of 31 july 2008; nunez v. norway, application no. 55597/09, judgement of 28 june 2011. 25 see demir and baykara v. turkey [gc], application no. 34503/97, judgement of 12 november 2008, paras. 85–86. 26 among others see timishev v. russia, application nos. 55762/00 and 55974/00, judgement of 13 december 2005, para. 64; ponomaryovi v. bulgaria, application no. 5335/05, judgement of 21 june 2011, paras. 59–63. 27 among others see gillow v. the uk, application no. 9063/80, judgement of 24 november 1986, paras. 55–58; n.t.p. and others v. france, application no. 68862/13, judgement of 24 august 2018, paras. 46–49; m.s.s. v. belgium and greece, application no. 30696/09, judgement of 21 january 2011; n.h. and others v. france, application nos. 28820/13, 75547/13 and 13114/15, judgement of 2 july 2020; bah v. the uk, application no. 56328/07, judgement of 27 september 2011. 28 among others see bensaid v. the uk, application no. 44599/98, judgement of 6 february 2001; powell v. the uk (dec.), application no. 45305/99, 4 may 2000; lopes de sousa fernandes v. portugal [gc], application no. 56080/13, judgement of 19 december 2017, para. 186. 29 among others see luczak v. poland, application no. 77782/01, judgement of 27 november 2007; fawsie v. greece, application no. 40080/07, judgement of 28 october 2010; koua poirrez v. france, application no. 40892/98, judgement of 30 september 2003, para. 41; dhahbi v. italy, application no. 17120/09, judgement of 8 april 2014; gaygusuz v. austria, application no. 17371/90, judgement of 16 september 1996, paras. 46–50; koua poirrez v. france, application no. 40892/98, judgement of 30 september 2003, para. 41; andrejeva v. latvia [gc], application no. 55707/00, judgement of 18 february 2009, para. 91. a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 400 mentioned above. in this framework, most of the works are executed in cooperation with the unhcr and other international charity organisations. art 27 provides that persons under temporary protection shall apply to ministry of labour and social security for a permit to work. turkey have not applied special requirements for foreigners in the access to labour market and granted required employment permissions to syrian immigrants. in this regard, turkey have adopted a self-regulating approach in labour market for immigrants and avoided a potential social and economic crisis (akcicek, 2015). health care: art 27 of the tpr provides the health services for asylum seekers under temporary protection status. asylum seekers are entitled to all basic health services received by turkish citizens. health services provided to asylum seekers in turkey are carried out by the ministry of health inside or outside temporary accommodation centres. the tpr requires the ministry of health to establish a sufficient number of health centres, and to provide enough medical personnel and ambulances in the established health centres. the ministry has reinforced the equipment and personnel accordingly (önder, 2019, p. 141). however, it is often reported that health services for syrian asylum-seekers have often fallen short due to insufficient number of health personnel and language, and cultural differences (yavuz, 2015, p. 269). on the other hand, another shortage for the access to health services for the syrian asylum seekers is that they must pay a “contribution fee” for the health care as all turkish citizens, except for patients in emergency situations. since the persons under temporary protection status have come from other countries, thus necessary screenings and vaccinations are carried out considering infectious diseases. the legislation also requires that the environmental conditions in which the temporary accommodations for asylum seekers are located shall be made suitable for health. within the scope of art 27/5 of the tpr, it is assured that "psycho-social services to be provided for persons benefiting from temporary protection shall be carried out [in cooperation] with support-solution partners, which are also specified in the disaster intervention plan of turkey published by the ministry of family and social policies". education services: education services for the syrian asylum seekers under temporary protection status are provided by the ministry of national education in or out of temporary accommodation centres. art 28 of the tpr provides regulations regarding education services. accordingly, preschool education, primary, secondary education and trainings are given to children. children of all ages who wish shall have access to courses such as obtaining professions and learning foreign languages. the higher education to be given outside the specified trainings are determined by the presidency of the council of higher education. according to art 28/3 of the tpr, an asylum seeker who "has received education under a different curriculum which was documented, these documents shall be evaluated by relevant units of the ministry of national education or presidency of council of higher education and equivalence proceedings shall be conducted for the grades deemed appropriate". thus, asylum seekers who gain equivalence have the right to perform their profession. access to the job market: under art 29 of the tpr, the right to employment given to asylum seekers under temporary protection shall be determined by the government dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 401 upon the proposal and opinion of ministry of labour and social security (mlss). the persons benefiting temporary protection status shall apply to the mlss with their temporary protection certificates and receive a work permit. the right to employment for asylum seekers under temporary protection status includes paid works as well as to work as self-employed. while their employment, persons under temporary protection shall enjoy ordinary social security facilities. despite the numerous projects for the employment of the syrian asylum seekers, unfortunately it is often reported that most of them are urged to work unrecorded, without social security and job security as a source of cheap employment. social assistance and services: art 30 of the tpr contains regulations regarding social assistance and services for the people under temporary protection. according to art 30/1 of the tpr, asylum seekers under temporary protection who are in need may have access to social assistances. social benefits for asylum seekers are carried out by the ministry of family and social policies. in this regard, the eu is the leading donor in the international response to the syrian crisis, with an overall total of € 10.9 billion from the eu budget (deut, 2021). family reunion: under art 49 of the tpr, asylum seekers under temporary protection may apply for family reunification in turkey to reunify with his or her spouse, children who have not attained maturity and dependent children, who are in another country. these applications are evaluated by the tdgmm and necessary actions may be carried out in cooperation with relevant public institutions and organizations, international organizations, and civil society organizations. in relation to minors who are found unaccompanied, the process of family reunification is initiated immediately without waiting for the children's request. on the other hand, officials from non-governmental organizations that conduct field works with syrian lgbti people report that the mechanisms for preventing and protecting violence against migrants are inadequate, and almost non-existent when lgbti people are concerned. they underline that especially the problem of employment and housing is a priority for those people. according to many sources, it is reported that lgbti people have no or little access to family-oriented assistances and supports for migrants (dw, 2021). right to nationality and right to property: the unhcr guideline underlines that tpsa’s are complementary tools to international protection and shall not obstacle the rights of an asylum seeker. ec directive, in its turn, provides in art 18 that; ‘persons enjoying temporary protection must be able to lodge an application for asylum at any time’. however, the tpr states that individual international protection applications filed by persons under the scope of temporary protection shall not be processed during the period of the implementation of temporary protection. it is especially affecting and cut off the right to citizenship. art 11/b of turkish citizenship law (tcl)30 requires a foreigner to stay 30 law no 5901 dated 29 may 2009, og no 27256 dated 12 june 2009. a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 402 minimum 5 years without interruption to file an application for citizenship. however, art 16 of the tcl on the acquisition of turkish nationality by having been married with a turkish national at least for 3 years is applicable to those persons under temporary protection regime. the blockade before the right of citizenship also affects the right of acquiring property for syrians because of so-called ‘law of reciprocity’31 of 1927 where the acquisition of immovable in turkey was prohibited to the nationals of albania, lebanon, syria, bulgaria and greece. however, making long-term contracts for rent a house is possible. despite many available legislations and regulations as well as implementation of many projects, surveys show that syrian asylum seekers under temporary protection in turkey still suffer mostly from language problem, access to fundamental needs and unemployment (ates and bektas, 2016, p. 30-31; yilmaz, azer and zenginkuzucu, 2019, p. 60). 4.4. non-refoulement the principle of ‘non-refoulement’ is another main pillar of international refugee and humanitarian law. the unhcr guideline highlighters that tpsa is ‘a form of protection that provides immediate protection from refoulement and basic minimum treatment’. in a particular situation triggering a mass influx towards its borders, the host country is required to permit entry of affected populations to its territory, providing them access to territory and protection from refoulement. art 3 of the ec directive provides that ‘member states shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement’. art 6/1 of the tpr reaffirm the principle of non-refoulement in the context of refugees as follows; ‘no one within the scope of this regulation shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion’. in this respect, the well-established universal principle of ‘non-refoulement’ is reaffirmed in the cadre of temporary protection. on the other hand, although the scope of temporary protection in tpr exceeds the definition of a ‘refugee’, in this expression the principle of ‘non-refoulement’ covers only the persons under the threat of ‘five sins’. 4.5. termination of temporary protection the unhcr guideline requires that a decision of termination of tpsa shall be taken upon the determination based on an objective assessment based on clear indications 31 law no 1062 dated 28 may 1927, og no 608 dated 15 june 1927. dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 403 that the situation causing the displacement has ended, and voluntary return is reasonable and can be carried out in safety and dignity (guideline 21/i) except another international protection status has been granted to the individuals under temporary protection. it is recommended to take such a decision of termination collectively and in cooperation with all relevant states (guideline 22) and the unhcr, as well as, when appropriate, other relevant international organizations.to prevent onward movements caused by the premature ending of stay in one country. according to the eu directive art 6/1b, temporary protection may be terminated by a decision of the council taken with a qualified majority, but the maximum duration shall be one year except special situations (art 4/1). on the other hand, persons enjoying temporary protection must be able to lodge an application for asylum at any time (eu directive art 17/1). art 6/2 of the eu directive provides that the council decision shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms. in all cases, the return of those persons shall be voluntary, and the protection shall be extended until the date of return. for the termination and cessation of the temporary protection and return of asylum seekers to their motherland, both guideline and eu directive requires an objective and subjective criteria. first, the situation at the origin shall be safe and available for a return with due respect for human dignity, and it is required that this assessment shall be made in cooperation with all relevant states and international organizations. ecthr also considered the evolving overall conditions in the country and examined the countryrelated risk factors that could affect the individuals at the proposed time of removal.32 secondly the asylum seeker shall feel him/herself safe enough for a voluntary return. art 11 of the tpr provides that the minister of interior affairs may recommend the termination of temporary protection regime at any time. the head of republic is entitled to decide the termination of temporary protection regime with a decree. the head of republic is not obliged to but may refer the situation to the consultations of other states or international organizations. neither lfip nor tpr contain objective criteria for the termination of the international protection. furthermore, there is no requirement to take the voluntariness of the asylum seeker into consideration. in the decree of termination, the head of republic may also decide: a) to fully suspend the temporary protection and to return of persons benefiting from temporary protection to their countries; b) to collectively grant the status, the conditions of which are satisfied by persons benefiting from temporary protection, or to assess the applications of those who applied for international protection on an individual basis; c) to allow persons benefiting from temporary protection to stay in turkey subject to conditions to be determined within the scope of the law. 32 vilvarajah and others v. the uk, application nos. 13163/87 and 4 others, judgement of 30 october 1991; n.a. v. the uk, application no. 25904/07, judgement of 17 july 2008. a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 404 with respect to syrian asylum seekers, refugee status is not possible under lfip. in this regard, some possibilities after the termination decision may be cited as follows: • a collective expulsion; • to grant citizenship to some or all the asylum seekers under tcl art 12; • to grant conditional refugee or subsidiary protection until their removal to a third country under lfip art 62 and 63. • allow some or all asylum seekers to stay in turkey as foreigners; • to make a special regulation for syrian asylum seekers. 5. conclusion in the first half of the last century, the horrendous armed conflicts and political polarizations as cold war made the foundation of on an international protection regime for refugees that the efforts had been already initiated even more urgent and inevitable. the un upon the emergence of such a necessity has established the office of unhcr. the 1951 convention consolidated previous developments in international arena on the establishment of international refugee law and embodied a comprehensive codification of internationally recognized principles on the protection of refugees. however, as a post-world war ii instrument, the scope of the 1951 convention was limited to persons fleeing the events before 1 january 1951 and had a geographical limitation option. the 1967 protocol, on the other hand, removed temporal and geographical limitations except already done declarations. the 1951 convention and the essentials of the contemporary international refugee law have three pillars. first, the definition of ‘refugee’ who is a person who left his or her home country and unable or unwilling to return owing to a well-founded fear of persecuted for so-called ‘five sins’, more concretely race, religion, nationality, membership to a social group and political opinion. second, negative protection of the fundamental rights and freedoms of the refugee, which, in principle, shall be as broad as possible but not less than aliens lawfully staying in in the host country. in some categories of rights and freedoms, the 1951 convention requires the host country to equip refugee with the same treatment as a national. these categories represent the rights and freedoms, which are specifically compulsory to survive in honourable and human conditions such as prohibition of discrimination, freedom of religion, access to justice, right to work and have a gainful employment and social security. the final pillar is the principal of ‘non-refoulement’ empowered by international human rights law, that is the prohibition of expelling or returning of a refugee to a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. the principle of ‘non-refoulement’ in the 1951 convention has some restrictions such as a refugee may not claim of ‘nonrefoulement’ when the host country considers him or her as a danger for the security of the country, in case of, for example, a conviction of a serious crime. however, the core international human rights instruments such as echr and the un international covenant on civil and political rights contain a prohibition of derogation for the dikran m. zenginkuzucu the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 405 essential rights and freedoms such as right to life, prohibition of torture and degrading treatment in all cases. in this respect, the principle of ‘non-refoulement’ in the 1951 convention is broadened in general and a refugee shall not be subject to deportation in all circumstances to a country where he or she is in danger of execution or torture and degrading treatment. however, we have faced to many regrettable development and unfortunate events since 1960’s and consequential mass influx paralysed individual application of refugee law to the asylum seeker victims. there are two main reasons of non-applicability of international refugee regime in such cases; one is international refugee law does not contain the categories other than ‘five sins’ like climate change and environmental disasters, and second is the impossibility of host state to take necessary actions under refugee law towards the urgency and complexity of the situation. temporary protection regime has been a response to similar circumstances. however, temporary protection regime has not a common understanding and depends to the individual regulations of the states. in this context, some efforts for the establishment of international common standards for temporary protection regimes have been observed since the beginning of 2000’s. the ec directive of 2001 and the unhcr guideline for tpsa’s of 2014 are the most common ones. turkey adopted an international protection regime in lfip of 2013, which also contains a temporary protection regime (art 91) and adopted the principles and procedures of its temporary protection regime in tpr of 2014. temporary protection regime is a complementary to international protection aiming at filling the gaps due to mass influx and urgency of the circumstances. it shall be solution-oriented and not intended to replace international law on refugees and international protection. in this respect, a temporary protection regime shall cover three pillars of international protection law as much as possible with two exception: negative exception; a temporary protection regime may contain some limitation especially due to the national security and order, demographic and economic environment of the host country and other similar reasons. positive exception; it is expected that temporary protection should fill the gaps of international refugee law, so it shall expand the definition of people eligible for international protection such as those forced to flee from their home country due to environmental disasters. turkey reviewed and adopted its legislation on international protection and temporary protection after mass influx from syria, which resulted with hosting more than 3.5 million asylum seekers in the country. turkish legislation covers and fulfils, in general, three pillars of international protection law. however, suspension of international protection procedures during temporary protection and insufficiency on naturalization of persons under temporary protection are the main basic points to be improved. in this respect, it is necessary to take a modification on art 16 of the tpr into consideration in line with international developments on international treatment principles under temporary protection. it is expected that turkey would amend art 16 pursuant the ec directive art a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 406 3/1 as temporary protection shall not prejudge recognition of refugee status under the 1951 convention. furthermore, today’s international environment is quite different from that of the period of foundation of turkey. in this respect, turkey shall revise its so-called ‘law of reciprocity’ of 1927, as much as possible in negotiations with the corresponding countries and shall abolish or revise this law consisting of 4 articles. finally, even if turkish constitution adopted a monist approach in case of protection of fundamental human rights and the 1951 convention prevails in case of a gap or contradiction in domestic law –which does not exist in factit will be more appropriate that lfip codifies literally the rights and freedoms of refugees, which shall be equal to a national such as freedom from discrimination, freedom of religion, intellectual property rights, right to fundamental education and other special regulations such as exception from prosecution for unlawful entrance, transfer of assets for refugees as recognised in the 1951 convention. in this framework, some recommendations for the improvement in turkish legislation on international protection and temporary protection regarding the unhcr guideline, the eu directive as well as international human rights law, may be specified as follows: • the withdrawal of turkey’s geographical reservation to the 1951 convention; • the content of the rights and freedoms recognized in the tpr shall be extended to cover all the international protection law; • the 1927 ‘law of reciprocity’ shall be revised and the right to property of the syrian asylum seekers under temporary protection shall be 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(2012). “diplomatic asylum: theory, practice and the case of julian assange”. sisekaitseakadeemia toimetised, pp. 240-259. available at: https://www. peacepalacelibrary.nl/ebooks/files/386022364.pdf [accessed: 18 march 2021]. https://doi.org/10.1177/1468018116666153 https://doi.org/10.1177/1468018116666153 https://www.goc.gov.tr/gecici-koruma5638 http://www.unhcr.org/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html http://www.unhcr.org/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html http://www.unhcr.org/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html http://www.refworld.org/docid/3ae68c6e10.html http://www.refworld.org/docid/3ae68c6e10.html http://www.refworld.org/docid/437c64b04.html http://www.unhcr.org/4da2b5e19.html https://cms.emergency.unhcr.org/documents/11982/44933/unhcr,+guidelines+on+temporary+protection+or+stay+arrangements,+2014/373af576-cd03-4134-9d49-e03a1add6a9e https://cms.emergency.unhcr.org/documents/11982/44933/unhcr,+guidelines+on+temporary+protection+or+stay+arrangements,+2014/373af576-cd03-4134-9d49-e03a1add6a9e https://cms.emergency.unhcr.org/documents/11982/44933/unhcr,+guidelines+on+temporary+protection+or+stay+arrangements,+2014/373af576-cd03-4134-9d49-e03a1add6a9e http://reporting.unhcr.org/sites/default/files/gr2018/pdf/01b_mission.pdf http://reporting.unhcr.org/sites/default/files/gr2018/pdf/01b_mission.pdf https://www.peacepalacelibrary.nl/ebooks/files/386022364.pdf https://www.peacepalacelibrary.nl/ebooks/files/386022364.pdf a comparative analysis on international refugee law and temporary protection in the context of turkey the age of human rights journal, 17 (december 2021) pp. 385-410 issn: 2340-9592 doi: 10.17561/tahrj.v17.6297 410 yavuz, ö. (2015). “türkiye’de suriyeli mültecilere yapılan sağlık yardımlarının yasal ve etik temelleri”. mustafa kemal university journal of social sciences institute, 12(30), pp. 265-280. yilmaz, s., azer, ö.a., zenginkuzucu, d. (2019). i̇stanbul esenyurt i̇lçesi suriyeli sığınmacıların sosyal ve ekonomik durumları. istanbul: istanbul esenyurt universitesi. received: january 12th 2020 accepted: march 24th 2021 a comparative analysis on international refugee law and temporary protection in the context of tu 1. introduction 2. history of international protection law 3. the core of international protection law 3.1. definition of the term ‘refugee’ 3.2. negative protection of human rights 3.3. principle of ‘non-refoulement’ 4. international protection and temporary protection 4.1. scope of temporary protection 4.2. obligations of the host states towards persons under temporary protection 4.3. implementation of the obligations in turkey and rights of asylum seekers under temporary pro 4.4. non-refoulement 4.5. termination of temporary protection 5. conclusion references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 63 climate variation-induced migration, land conflicts, and security situation in nigeria dickson ogbonnaya igwe* abstract: climate variation largely impacts migration in with the capacity to worsen conflict and security situations in parts of africa, nigeria in particularly, already facing security threats from the activities of sedentary and nomadic pastoral farmer’s interaction. increasing variations in rainfall patterns significantly impact the migration patterns of vulnerable households and constitute a risk factor to their livelihoods. for effective adaptation plan and sustainable livelihood decision that has climate resilient future, there is need for better understanding of the conflict and security implications of climate variation. this paper, therefore, interrogates the nexus between climate variation and migration, as well as the impact of this nexus on conflicts and security of lives and properties in nigeria. using critical analysis and qualitative methodology, the study establishes that migration settlement policies that fail to define the rights and duties of settlers and those of indigenes of any particular community, create loopholes for the reification of identities and identity-induced crisis. the conclusion of the paper is that migration issues resulting from climate variation have not been adequately addressed to involve all stakeholders. there is the need to harvest environmental impact assessment data of climate variation to guide the provision of alternative options to climate-related emergencies across nigeria. key words: conflict, security, climate variation, migration, nigeria summary: 1. introduction. 2. theoretical conceptualisation of migration. 3. effects of climate variation and migration. 4. agrarian production and security challenges. 5. climate variation-induced migration, land conflict and security. 6. some major land-related conflicts in nigeria. 7. migration experience between ezillo and ezza people. 8. seasonal migration and security questions in nigeria. 9. conclusion. 1. introduction most recently, climate change in africa has generated recurrent conflicts that encouraged increased wave of migration both within and outside of the continent. among these are the protracted somali insurrection, civil war in southern sudan, boko harram insurgency in nigeria, chad, niger and cameroon, and the crisis in the democratic republic of congo (drc), the darfur crisis, somalia crisis and a series of boundary clashes among many others. several other natural occurrences particularly famine and drought have occasioned mass displacement of people and family dislocation. the result of absence of social support need for survival directly generate frustration, aggression and ultimately involvement in social vices such as crime. consequently, migration in search for alternative favourable location exposes migrants to contact people settled at * (b.sc. sociology, dip. criminal justice admin. & m.sc. criminology, unilag); dip. peace and conflict resolution, chula. bangkok, thailand; m.phil. criminology & ph.d. criminology and development, ui). university lecturer, department of criminology and security studies, faculty of the social sciences, national open university of nigeria, 91 cadastral avenue, nnamdi azikiwe way, jabi-abuja nigeria, and email: princedxn2010@hotmail.com. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 64 climate variation-induced migration, land conflicts, and security situation in nigeria the receiving community. the problems of climate change-induced migration bring such group as herders/farmers into contact and clash of interest intensifying poverty. all these have combined with bad leadership to further accelerate the rate at which africans migrate in crowds to different parts of the world. as it were, africa seems to account for the majority of the total global conflicts. kofi annan, in his report to the united nations security council (unsc) titled: ‘the causes of conflict and the promotion of durable peace and sustainable development in africa,’ noted that, “[…] 14 of the continent’s 53 countries were afflicted by mostly climate change-induced migration and armed conflicts in 1996 alone, and over 30 wars have occurred…since 1970, mostly within states. these accounted for more than half of all the war-related deaths worldwide[…]”.1 in the nigerian context, climate change-induced migration generates land conflict posing global, regional, and national security challenges. nigeria’s economy is largely oil based. she always has to face issues about degradation and pollution, which are associated with oil exploration. the consequent carbon emission, gas flaring, and the pollutioninduced threat to marine life, significantly contribute to climate change and migration. the movement of both nomadic and sedentary farmers in search of better life and arable land to graze and farm constitutes climate change-induced migration. the contact among these farmers, and their disagreements over arable land spaces, generate conflicts. these situations have led to violent death of persons and destruction of properties, in both rural and urban communities. land conflict issues vary from region to region and community to community but of major concern to this paper, are the recurring conflicts in both the northern and southern regions of nigeria between sedentary and nomadic farmers. the seasonal disparity in rainfall rate between these two regions is responsible for the variation in climate and vegetation. these seasonal variances bring to contact sedentary farmers in the south and herders from the north who move southward in search of water and vegetation to feed their livestock. farmers-herders clashes are also evident in northern parts where integrated farming system is in operation, with the use of irrigation to ensure all year-round farming intensification between and within communities. the result is usually struggles by herders and farmers over land spaces for grazing and agricultural intensification, respectively.2 studies in this direction are imperative because these clashes constitute threats to agricultural production, security of lives and properties, and food security. this paper examined conflict and security effects of climate variation and migration in nigeria. the paper is divided into nine sections: theoretical conceptualisation of forced migration, effects of climate variation and migration, agrarian production and security challenges, forced migration, land conflict and security, some major land conflict in nigeria, migration-induced recurrent intermittent intractable conflict and 1 aboagye, f. b. 2009. confronting complex emergencies in africa: imperatives of a search for a new doctrine of humanitarian ‘security’ interventions. iss paper 24, november. pretoria: institute for security studies (iss), p.1 2 olajide o. akanji 2012. migration, conflicts and statehood problem in nigeria: the self-determination issue, journal of nigeria studies, volume 1, number 2, p: 4-61. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 65 dickson ogbonnaya igwe insecurity between ezillo and ezza, seasonal migration and the security questions in nigeria, conclusion and recommendations. 2. theoretical conceptualisation of migration the rationalization theory according to max weber (1968) posits that a particular process is desirable because of the rational sense and value derivable from it. in the context of climate variation-induced migration, land conflicts, and security situation in nigeria, there is often great difficulty, amongst people, to understand the logic of pastoralism. it was ibrahim3 who drew attention to the popular adage in the popular imagination that, ‘nomads’ are conceived of as wandering from place to place without any logic. what is better understood is the culture of farming, which is rooted in a specific location and has activities that take place regularly. this lack of understanding of the culture of pastoralism makes people susceptible to subjecting its practitioners easily to the subject of innuendos and aspersions, accused of robbery, cattle rustling, rape, kidnapping and even scorched earth policy. the greatest problem associated with such misunderstanding is assuming that pastoralism is in itself an irrational production system, which is far from the truth. pastoralism can be categorised into nomadic, transhumance or agro-pastoralist forms based on the degree of movement. transhumance pastoralism, which involves the regular movement of herds between fixed points to exploit seasonal availability of pasture, is the most misunderstood. this mode of production involves sending part or all of the herd to access crop residue in adjacent farms or graze in open range and in some cases even move further southwards as the dry season becomes more severe and returning home (north) with the advent of the rains. transhumance pastoralism is an enduring form of livestock production involving seasonal and cyclical migration between complementary ecological zones which is today under threat in west and central africa. pastoralism is the main livestock production system in much of africa where pastoralists live in semi-arid zones. it is a historically developed strategy to cope with the uncertainties associated with climate change, epizootics, buildup of parasites and other related challenges. it is above all an efficient way to produce livestock at relatively low prices through the use of non-commercial feeding stock. 3. effects of climate variation and migration two main causal factors explain climate variation and migration: natural and human activities. increasing population, industrialisation, and agricultural intensification, are major human factors that aggravate the impacts of natural process of climate variations on people’s livelihood and survival needs.4 before now, changes in the earth’s orbit, solar activities, and volcanic eruptions had no significant impacts on humans as they do today. various human activities including deforestation, burning of fossil fuels for industries and 3 ibrahim, jubril, 2019. transhumance, pastoralism and citizenship crisis in west africa, in augustine, i.; abdulwahab, m. & karim, a. ed. transhumance and international migration: challenges for governance, peace and sustainable development in sub-saharan africa, national institute for security, abuja. 4 fm brookfield 1992. treaties and indigenous peoples. the robb lectures. oxford: clarendon press. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 66 climate variation-induced migration, land conflicts, and security situation in nigeria transport, gas flaring, water and air pollution, urbanization, infrastructural development that are associated with industrialisation, account for about 80% of climate variation5 consequently, more than ever before, there are recurrent cases of severe heat waves, drought, flood, increased health risks, rising sea levels, and other negative impacts. the components of greenhouse gas are water vapour, carbon dioxide, nitrous oxide and methane that obstruct the loss of heat from the earth keeping it warmer and hot. the trapping of heat and obstruction of its escape from the earth increase the stress and vulnerability, of human population, environment and economy. in recent migration policy discourse, the linkages between climate variation and migration effect on security challenges, especially violent extremism have been highlighted. the 2018 world migration report identifies five-fold typology of the effects of climate variation and migration looking at them from their security implications such as violent extremism, in transit and destination countries/communities namely: violent extremism as a driver for displacement and migration, like the population displaced in northern nigeria as a result of the deliberate attacks of boko haram; the risk of radicalization in refugee, idp and possibly transit camps, where such camps may serve as bases for fighters to rest, and also serve as recruitment group’s ground, like the minawao camp in northern cameroun which risk becoming a recruitment base for boko haram;6 the risk of terrorist infiltration of migration and asylum flows, as suspected of isis members from syrian arab republic and iraq via turkey into europe;7 the migrants’ challenges of integration resulting in social exclusion, and unequal power relations through access to resources, capabilities and lights;8,9 and migrant’s returnees facing unsustainable reintegration processes leading to aggressive tendencies and aversion to social norms. similarly, increased temperatures and rainfall variability significantly affect food production, water supply and resources, biodiversity, and human and animal populations. so long as migration pattern and decision reflect climate variation and human activities continue to accelerate the debilitating impacts of climate variation on human population, environment and economy, conflict and security pattern and threat. 4. agrarian production and security challenges provision of the basic need for food/feed, fibre, and energy is the primary purpose of agriculture. agrarian life is a support to subsistent agricultural production. research shows that nearly 70% of people in developing countries are agrarian and are largely 5 cabot, c., 2017. climate change, security risks and conflict reduction in africa, hexagon series on human and environmental security and peace. 6 larson, n. 2015. un condemns boko hara abuse of children in cameroon, afp, 4 june (www.capitalfin. co.ke/news/2015). 7 rudiger, a. and spencer, s. 2003. the economic and oecd (www.oecd.org/miration). 8 schmid, a. 2016. link between terrorism and migration: an exploration; international centre for countries terrorism – the hague (hhps://:cct.nl/publication/links). 9 undesa, 2016. leaving no one behind: counting all people because all of them count, united national department economic and social affairs (www.un.org/development/desa). the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 67 dickson ogbonnaya igwe involved in agricultural activities for livelihood and survival.10 the implication is that climatic variation should not be an isolated discussion but a global one since it affects majority of the people and puts at stake the livelihood security and survival of most people in rural communities. temperature, radiation, precipitation, and humidity, among others, have direct impacts on agricultural production including forestry, vegetation and fishery systems, as the atmospheric conditions determine vegetative growth and animal production. for instance, given a projected agricultural production decrease for small temperature increase of about 1-6° c in an area: on the other hand, changes in cool regions has the potential to increase food production even when local average temperature rises over an range of 1-7° c.11 this is a clear indication of regional differentials in climatic temperature and agricultural production. it influences the migration decision people take for survival since they move in response to weather/seasonal variations, to places with favourable climatic conditions for agricultural production. to avert poor yields or crop failure, investment plans are not done without climate variation impact assessment. unfortunately, sometimes, possible conflicts and the security implications of investment and migration decisions are not taken into proper account. 5. climate variation-induced migration, land conflict and security there is an entwined relationship between climate variation, forced migration, land conflict, and security. before now, the chad basin was home to many nigerian and chadian sedentary and pastoral farmers. but with the shrinking of the lake, many fish farmers lost their jobs to join pastoral or sedentary farming involving vegetation and land cultivation. this created new need for farm land both for farming and grazing of livestock putting pressure on earlier farmer to struggle for land access and denial. the migration from lake chad coast to the hinterland confronted the nomadic and sedentary farmers who were first settler in those areas. hence, the struggle for access to land, its use and territorial authority to own land. the speed at which desertification is encroaching the sahel and savanna regions of northern africa is exacerbating regional, national and local tensions in these ‘hot-zones’. the effects of climate variation have been interpreted from various dimensions. for instance, climate variation indirectly has drawn a parallel line of conflict in nigeria between the boko haram and the christian inhabitants of northern nigeria just as it has sown the seed of animosity and fear between nomadic pastoralists and sedentary farmers both in northern and southern nigeria. in almost all cases, the issue of contention is green vegetation and farmland for farming and grazing. beyond the activities of these insurgents migrating from hostile desert to displace people in sahel, savannah and 10 ipcc 2007. climate change 2007. impact, adaptation, and vulnerability. working group ii contribution to the intergovernmental panel on climate change fourth assessment report unep (2011): livelihood security. climate change, migration and conflict in the sahel. 11 cabot, c., 2017. climate change, security risks and conflict reduction in africa, hexagon series on human and environmental security and peace, 12. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 68 climate variation-induced migration, land conflicts, and security situation in nigeria mangrove areas, is the issue of population. demographic pressure created by mass movement human and animal from the northern part of nigeria to the southern part lead to displacement and humanitarian issues that trigger up conflict between the migrants and their host communities. as access to farmland for farming become scarce, too many hands contest access and use of land for livelihood and economic survival, but given the limited land access and the need for food and survival, actors resort to violent search for land.12 6. some major land-related conflicts in nigeria discussion of conflicts in nigeria is not complete without reference to pre-colonial struggles for land spaces between ethnic groups. however, to a large extent, most modern issues of access to, use and ownership of land have direct bearing on the british colonial establishment and the creation of administrative boundaries that did not reflect cultural and ethnic divisions. in 1914, northern and southern nigeria was amalgamated. each region carved out had a dominant ethnic group receiving the influx of people from minority groups. by the british design, the emirs persuaded igbo and yoruba people to live in separate parts of northern cities in a reserved area known as sabon-gari, or stranger’s quarters, just to avoid clash of culture.13 the british stimulated inter-group relations and competition, and mobilised people in a manner that consolidated their hold on political power and land resources. this last component of their later set the stage for decades of conflicts in nigeria. generally, in africa and nigeria in particular, land is communally owned. communal ownership of land was short-lived with the advent of the colonial masters. the british introduced land reforms that almost wiped away the communal content of the indigenous land tenure system. consequently, land issues became a leading cause of conflicts in nigeria. the migrant peasant land investors were no less different from the indigenous land owners. identity and authority over land became issues of contestation for both first settlers and subsequent settlers in communities. access to land is important to poverty reduction, economic growth, and the empowerment of the poor.14 this underscores territorial expansion as a solution to climatic variations. it does also justify perhaps why land conflicts are so prevalent, and why they are more difficult to solve than other conflict issues.15 nigeria has experienced many decades of land conflicts, and the number of people 12 odoh, s. i., and chilaka francis chigozie 2012. “climate change and conflict in nigeria: a theoretical and empirical examination of the worsening incidence of conflict between fulani herdsmen and farmers in northern nigeria.” arabian journal of business and management review: at 121. 13 osaghae, eghosa e., and rotimi t. suberu. 2005. a history of identities, violence and stability in nigeria. centre for research on inequality, human security and ethnicity, university of oxford. 14 fabusoro, e., t. matsumoto, and m. taeb. 2008. “land rights regimes in southwest nigeria: implications for land access and livelihoods security of settled fulani agro pastoralists.” land degradation & development, volume 19, number 1, pp. 91–103. 15 olabode, a. d., and l. t. ajibade. 2010 “environment induced conflict and sustainable development: a case of fulani-farmers’ conflict in oke-ero lgas, kwara state, nigeria.” journal of sustainable development in africa, volume 12, number 5, pp. 259–2743, at 263. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 69 dickson ogbonnaya igwe dying as a result continues to grow each year. some of these conflicts include the ife/ modakeke, the agulere/umulere, the tiv/jukun, and the ezillo and ezza land conflicts.16 7. migration experience between ezillo and ezza people the search for farm land and territorial space to exert power and authority are factors central to the understanding of the conflict and security threat associated with migration within and around ezillo community. the conflicts usually involve indigenous ezillo people and ezza migrants. majority of ezza migrants are farmers who are known for the cultivation and trade in yam, cassava, and rice. unlike rice which is cultivated at the pick of the rainy season, yam and cassava are cultivated at the beginning of the rainy season. the hoeing skills of most ezza people are widely acclaimed. they migrate from place to place in search of land to farm and farmers to buy their farm labour. the seasonal influx of ezza migrant labourers into ezillo community usually overwhelms available space for farming and habitation. ezillo and ezza land conflicts date back to 1930s during the colonial regime whose interventions could not stop the conflicts.17 while the indigenous land owners (ezillos) exercise authority over their land, the land investors and settlers (ezza) insist on their right to land both as compensation for assisting ezillos to prosecute war of recovery from invasion, and as a property purchase from ezillos. an interviewee from ezillo says: ezillo people reject domination based on shared kinship arising from reinvention by ezza people the exercise of their ancient ancestral authority in ezillo community. the ezzas in ezillo are migrant settlers in this community and has no authority to exercise outside ezillo traditional authority. to allow the exercise of parallel authority by anybody amount to confusion, anarchy and internal enslavement and colonisation. so, it is not acceptable to us despite exchange we have had together.18 an interviewee from ezza says: the entire northeast igboland (nei) was a territory that discovered by a progenitor ekumaenyi ezekuna who according to custom, exited passing on his authority over the region to his first son ezza ezekuna. while other two younger brothers of ezza multiplied into places like ezillo community, ezza also increased in population and power to conquer and bring together his kindred including those from his other brothers izzi and ikwo. it is our birth right it is not given but inherited. we will resist any opposition to this order. ezza ancestral mandate is to unit, secure and develop the culture and people of the ancient northeast igboland.19 16 igwe, d. o. 2019. the social context of ezilo and ezza land conflict in ezillo community, ebonyi state south-east nigeria; unpublished thesis. 17 ibid 18 kii/ ezillo/male lawyer and youth leader/ 45 years old/ 23th july 2016. 19 fgd/ezza/male retiree, elderly man /62 years old and above/ 12th august 2016. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 70 climate variation-induced migration, land conflicts, and security situation in nigeria data above show that ezillo people reject being subject to any other authority than the ezillo traditional authority as part of nei territory. it suggests that ezza prefers in ezillo community existence of parallel exercise of authority that will enable them exercise ancestral authority alongside indigenous traditional ezillo authority. the aggressive migration and occupation of land by ezza within this area seem to affirm their preference. also, the continuous contestation over land between ezza and other groups in the area seem to mean their outright opposition to ezza rulership over nei. despite this opposition, ezza people still migrate to and reside freely in ezillo. ezillos suspicion of ezza is anchored on the perceived offensive tendencies of ezza people such as expansionist and colonisation tendencies, domineering and oppressive tendencies among others as described by (brayne-baker’s intelligence report, 1936:67). the colonial administration attests to this migration, exchange and interaction. an archival record of ogoja provincial annual report, 1911:551 says: […]during the past ten years preceding the arrival of colonial authority in ezillo area, there has been considerable influx of the virile and land hungry ezza tribe into ezillo. based on good will and in return for appropriate presents and labour, these immigrants are allotted specific portions of ezillo land for farming and residence. on the other hand, other villages of ezillo area are as follows: nkalagu, iyono, amezu, umuhuale, nkalaha, obeagu and obeagu ezza. while ezza migrant farmers were used by ezillo farmers on their farms, the labourers were also interested in exploring new areas to settle down for farming. these were the target and needs that characterised the first contact of ezillo and ezza. in order to meet the target of farm settlement, the needs for farm labour by their host ezillo had to be satisfied. there was the emergence of a platform for reciprocal exchange of farmland and farm labour. the platform evolved into a very strong goodwill and mutual trust that metamorphosed into inter-marriage relations between ezillo and ezza. as their population increased, ezza-ezillo identity gained relevance, leading to self-consciousness. request for land allocation became legitimate based on inheritance by birth. several conflicts that fed from authority contentions are referred by an interviewee from ezillo thus: the ezza people forcefully exercise authority they do not have as strangers in ezillo as demonstration of their expansionist tendency. the offsprings of the invited and uninvited ezza who settled earlier in ezillo (identified as ezza-ezillo people) are presently claiming indigenous right s to land and other aboriginal entitlement which was not part of the original understanding reach before settlements were given to their forefathers. it won’t come as a surprise if we lose our ezillo identity to ezza people whose population increase is already a threat. example, in 1990, after the creation of ishielu lga with ezillo as headquarters and land was allocated for secretariat office buildings; ezza people went and occupied the entire land claiming ownership and compensation. in 1992, conflict resulted from contention over the seizure and renaming of nwafor isimkpuma ezillo the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 71 dickson ogbonnaya igwe market to ‘eke ezza’ by the ezza people. in 2006, refusal of ezillo people to support the creation of izzo autonomous community from ezillo ignited serious contentions and conflict. animosity over this led to ezza assaulting the traditional ruler of ezillo in the market square. in may 2008, collection of rent from users of motor park market in isimkpuma led to disagreement as the ezillo people refuse to pay the rent to the ezza tax collector. these are instances of ezza threat to rights to indigeneity as ezillo people.20 a kii from ezza says: ezza is no stranger anywhere in the entire nei. the attempt by ezillo to reconstruct history is unfortunate. particularly the protest against our given authority over land acquired and allocated to ezza by both the government of ebonyi state and the people of ezillo as permanent compensation for the mercenary service we rendered to ezillo people. our ancient ancestral kinship traditional authority encouraged inter-group interaction in nei including ezillo. in ezillo, we got land right from ezillo as compensation for military service we rendered to them. also, we have worked hard and acquired land in ezillo in addition to the additional potion of land the state gave us right to own. our taking charge and exercising authority over ezza legitimately owned land in ezillo is not misplacement. as citizens of nigeria we are also permitted by law to own land and live anywhere in nigeria. ezillo is looking for trouble.21 data above reveals ezza in ezillo community violation of indigenous authority with impunity and incessant claim of rights to land at the displeasure of ezillo people. deconstruction of ezillo indigenous authority by ezza starts with several violation of land treaty that infringe on ezillo rights to land and identity. the data show that ezza already have offspring in ezillo community with distinct ezza-ezillo identity. they are offspring from uninvited ezza who settled earlier in ezillo and the invited ones. worrisome to ezillo is the cloning of its identity by strangers otherwise known as ezza settlers earlier presently constitute indigenes claiming indigenous rights to land and other aboriginal entitlement. on the other hand, the ezza aside the ancestral right to land in nei, is confidence that they have got rights to land allocated to her as compensation for the mercenary service they (ezza) rendered to ezillo and subsequent protection their presence in ezillo portends to ezillo community and people. also, ezza further argued that her members have at different time purchased land from ezillo land owners that cannot be denied nor taken away from them. the ezza, therefore wondered what it is that ezza is doing that is not part of the original understanding reach before settlements were given to the ezza people in ezillo. apart from the various ways these authority sources have been reconstructed within intergenerational space, questions around statutory/citizenship rights, indigeneity rights, and settlers’ rights, remain major issues of contestations. incidentally, the nigerian 20 kii/ male/67 years old /political office holder/ ezillo/29th july 2016. 21 idi/men/ town union member /64years /ezillo/17th august 2016. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 72 climate variation-induced migration, land conflicts, and security situation in nigeria constitution is silent on these rights except that of citizenship. thus, this has created space for ambiguity, contestations and conflict.22 unlike the citizenship rights and entitlements, the ambiguity of indigene/settler rights and entitlements in the nigerian constitution has left many groups fighting over the absence of definition of who is indigene and who is a settler. this has deepened rivalry and discrimination among groups in nigeria. drawing from this situation is the issue of land question that has remained unanswered in postcolonial nigeria bedeviling our collective sensibility as a nation. however, the battle over indigenous authority and land rights in south-east nigeria, particularly ezillo, are mostly centered on indigene/settler entitlement question. conflicts usually trigger when investors, otherwise called settlers, try to exercise control/authority over portions of land they had legitimately purchased, by enforcing tenancy-charges on indigenes using their land. the isimkpuma motor park market allegedly owned by ezza people are used by the ezillo people for business but decline payment of tenancy-charges to ezza who insist that they must pay. a phone booth entrepreneur in the market from ezillo refuse to pay market toll to the ezza toll collector and that led to the identity/authority struggle that escalated into a full blown intra-communal war protracting for over two years starting from 10th may, 2008. the intervention of local and state authorities did not stop the war until the federal force came in to enforce order. the disputed portions of land have remained cordoned off from public access. this constitutes challenges to general economic activities and development. despite the promise of equitable distribution of land to all in the land use act of 1978, the act only succeeded in concentrating community land into private hands of the privileged few against the majority in need of land.23 that land ownership rights belonging to the state and few privileged individuals is never acceptable to the people.24 the indigenous communal land ownership structure was weakened by land reforms beginning from the colonial time with post-colonial reforms merely retaining the colonial structuring. the fact that this structure does not recognise indigenous authority particularly regarding land ownership speaks to the recurrent conflicts that characterise indigene/settler relations in most nigerian communities. generally, land-related violent conflicts in most southern parts of nigeria are either caused by identity-politics or authority/supremacy between indigenes and settlers. the climatic variation between the north and the south remains a major trigger of some of the conflicts. the perspective to conflict in nigeria can be explained in the context of herders/farmers clash over land space, water, and vegetation, needed to farm and/or graze. as desertification, drought, and industrialisation intensify, there is influx of nomadic cattle 22 s.a. benjamin, 1999. the 1996 state and local government reorganizations in nigeria, ibadan: niser monograph series number 21, pp. 17. 23 g. b. shedrack, e.i. alamijeabee and b.s. zainab, 1999. ‘communal conflicts and the possibilities of conflict resolution in nigeria: a case study of the tiv-jukun conflicts in wukari local government area, taraba state’, in o. otite and i. o. albert (eds). community conflicts in nigeria: management, resolution and transformation, ibadan, spectrum, p: 82-89. 24 ibeanu, okechukwu 2000. “oiling the friction: environmental conflict management in the niger delta, nigeria.” environmental change and security project report, number 6, pp. 19-32. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 73 dickson ogbonnaya igwe herders to the south in search of water and grassland to feed their livestock. this migration interrupts agricultural intensification in the south as it results in several security problems. 8. seasonal migration and security questions in nigeria climate variation and its associated events such as migration, land scarcity, competition, dispossession, displacement and conflict are seasonal occurrences that are unpredictably debilitating to society and its security. while climatic variation is a natural occurrence, the events that accompany it are unfavorably human. these activities unfold with phenomenal impact on economic and social security and development. failed attempts in the past to mitigate and constitutionally resolve these human factors have not succeeded because nigerian constitution did not address them comprehensively. consequent to constitutional lapses in solving these problems is the coinage of migration and security question in nigeria. however, while many of the outcomes of this seasonal variation favour one part of nigeria, other locations are unfavoured. for instance, while rainfall is heavy in the south, the north mostly experience draught. this implies that conflicts generated are interest based that need dialogue, understanding and compromise in the absence of constitutional prescriptions. considering the demographic strength of the fulani people involved in nomadic pastoral farming will no doubt shade light on why their southward movement is phenomenally significant. since the fulani moved east into nigeria in the 14th century, they have increased to an estimated population of 18.7 million.25 remarkably, the people have vigorously protected their culture to avoid adulteration. they have never given up on the one nigeria project they consider as a big market for their huge animal production skill. to them, its only under one nigeria that they can move with their livestock from place to place without restriction. with the increasing clamour by other federating units in nigeria for an equitable restructuring of nigeria to favour all and not just some, the fulani is becoming more assertive than ever in the quest to hold on to political power as a tool for self-perpetuation. the overwhelming rejection by states of the federal government request for donation of land for cattle colony and ranches is suggestive of the intrigues associated with nigerian politics and the fulani interest. considering the political support network available to herders more than their counterpart farmers, it is becoming increasingly difficult or nearly impossible for pastoralist not to intensify their invasion of southern grassland for seasonal cattle grazing. according to one pastoralist from plateau state: the pastoralist invades our farms with such impunity that suggest deliberate intension to test our strength. any attempt by our farmers to chase the cattle away leads to clandestine display of sophisticated weapons and ammunitions. this makes us believe that there are more to herders’ 25 van driel, a. 1999. the end of herding contract and decreasing complimentary linkages between fullbe pastoralists and dendi agriculturalists in northern benin. in v. azarya et al (eds) pastoralists under pressure. leiden: brill. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 74 climate variation-induced migration, land conflicts, and security situation in nigeria invasion that meet the eyes. the extent of rampage chasing away cattle result to is incredible. it show how much value the herdsmen place on their cattle.26 an interviewee says: investment in agriculture is increasingly declining because of the activities of herdsmen and their cattle destroying farmland. our youthful farmers who cannot stand the provocation have resorted to fight to chase cattle and their headers away from farmland. in fact, livelihood in yobe state dominated by agrarian production is near zero as people are mostly fighting instead of farming to defend their farm produce and farmland from fulani invaders.27 also, another farmer from enugu state says: cost of farm labour and food price has gone up here because of the risks involved in the regular fulani herder’s invasion of our farms regularly with their cow to destroy our farm produce. people are discouraged from going to farm to avoid the attack of herdsmen. despite government and traditional interventions, the pastoralists have not stopped attacking farmers and their farm right inside the farm.28 the data above show that some pastoralists’ social thought and cosmology reside the state of nature. this depicts him as a natural man who has no static home but makes everywhere his home. contrasting this thought is their eagerness to protect their traditional culture and identity as pastoralists. however, the pastoralists strive to safeguard their economic interest in cattle rearing, the sedentary farmers are counting loses in farm input and output many of which are lost to cattle invasion of farmland. the implication of this is a shortfall in food production and food security across the country nigeria. the government clamour for diversification from oil-based economy to agro-based economy is facing challenge of not only climate change but human challenges such as herders/farmers clash and it resultant restriction of agricultural production and productivity. youths and rural peasants are discouraged from going to farm or investing in farming for fear of crop destruction by herder’s cattle and conflict. since there are limited government subsidies on food product or its production with its inequitable distribution, only the privileged few access inputs such as seedlings and manure fertilizer for farming. consequently, the cost of product and production is forced up. 9. conclusion overall, this paper explored the issue of environment and conflict linkages in nigeria. it is a topical issue which is at the heart of nigeria’s current security challenge 26 kii/male farmer/lantan village/ 6th june, 2016. 27 kii/male farmer/ tumsa village/ 29th april, 2016. 28 idi/male farmer/uzouwani village/ 27th august, 2016. the age of human rights journal, 14 (june 2020) pp. 63-75 issn: 2340-9592 doi: 10.17561/tahrj.v.14.5478 75 dickson ogbonnaya igwe particularly between farmers and herders. having dwelled on climate variation-induced migration, land conflicts, and security situation in nigeria, irregular migration pattern of both nomadic pastoralist and sedentary farmers contact and conflict were exhaustively discussed. findings show lack of common ground and unequal government recognition for both farmers that deepen animosity and pressure for recognition. similarly, climate variation as natural component and farming for survival and conflict induced human displacement as well as family dislocation mobilise migration. the movement of this population brings them to contact with others. absence of social support network among the displaced, obstruct social control that make crime and conflict inevitable. drawing from the foregoing, it is recommended that policy be made to indigene, settlers and migrants in terms of what right each has over the other. strategy to articulate and disseminate early warning information must evolve as legal framework. received: june, 6th 2019 accepted: february, 13th 2020 climate variation-induced migration, land conflicts, and security situation in nigeria abstract key words summary 1. introduction 2. theoretical conceptualisation of migration 3. effects of climate variation and migration 4. agrarian production and security challenges 5. climate variation-induced migration, land conflict and security 6. some major land-related conflicts in nigeria 7. migration experience between ezillo and ezza people 8. seasonal migration and security questions in nigeria 9. conclusion the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 276 transforming human rights through decolonial lens davinia gómez sánchez* abstract: this article problematizes the human rights conceptualization embodied in the international human rights law corpus. it considers human rights as a western construct rooted in a particular historical context, located in a specific ideological background and grounded in a concrete socio-cognitive system. thus, in disregard of features of non-dominant cultures, the mainstream human rights grammar became a discourse of empire. building on twail and decolonial theory, this article challenges that hegemonic human rights discourse while providing a justification for incorporating other conceptualizations of rights through an inter-epistemic conversation with alternative world-views. keywords: human rights, eurocentrism, decoloniality, alternative epistemologies, indigenous peoples, development. summary: 1. debunking human rights universalism. 1.1. introduction and preliminary clarifications. 2. “the contingency of law’s grounds”. 2.1. locating the making, rooting the discourse. 2.2. relative universalism or “not at all”. 2.3. uprooting the discourse, dislocating the making. 2.4. inclusion of alternatives through decolonial theory. 3. conclusion: the significance of human rights. “rights were no longer universal, because “north” and “south” did not occupy the same universe” (burke, 2008, p. 296).1 1. debunking human rights universalism 1.1. introduction and preliminary clarifications since the adoption of the universal declaration of human rights (udhr) in 1948, much has been written about the eurocentric origins and western conceptualization of human rights (hr) and international human rights law (ihrl). predominantly, the discussion has dealt with three controversial aspects around hr. firstly, the ultimate foundations of the hr discourse; secondly, the debate about universalism/relativism of hr, and lastly although to a lesser extent, the idea of hr as a strategic tool that retains an imperial ambition due to its inherent universal claim, characteristic of a postcolonial postmodern era. this article will critically examine the dominant hr discourse that has consolidated in the ihrl corpus as universal. it examines the issue from the premises of critical legal theory focusing on critical approaches to international law (il). from that perspective, this paper reads the positivisation of hr precepts and claims,2 in connection to power 1 this position gained strength during the first un international conference on human rights held in tehran in 1968. princess pahlavi of iran (member of the royal family who hosted the conference) referred to a “distinctive third world human rights ideology” (burke, 2008, p. 285). this view will come back to the forefront in the 90’s with the asian values’ cultural relativist challenge. 2 “the legalization of rights or politics by other means” (emphasis added) as put by wilson, 2007. * university of deusto, spain (davinia.gomsan@deusto.es) davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 277 and ideology. thus, it will shed light on to what extent this dominant conceptualization of hr is rooted in western ideology and can therefore be seen as a hegemonic order. within this overarching goal, special attention will be paid to the elements behind the theoretical construction of hr, namely: historical context, geo-political factors and particular ideological underpinnings. thus, the context, the actors and the ideas that led to the hr conceptualization will be examined along the different sections below. in order to do this, the focus will lie in the politics and support of different key actors involved in decision, policy and law-making processes that hold unequal power; the ideas and interests which influenced their choices, and the elements which contribute to shifting discourses, legitimizing support and decision making. in order to critically explore the epistemological roots of hr (the genealogy of the ihrl corpus) and interrogate the dominance of the euro-western hr discourse (coloniality of knowledge, power and ideology), the theoretical framework of analysis will bring together third world approaches to international law theory (twail) and decolonial approach. based on the outcomes of such exploration, a subsequent stage of the analysis will anchor the theoretical stance on a concrete proposition as an alternative: the epistemologies of southern african indigenous peoples (ips) to advance ideas in an attempt to transform hr and debunk hr universalism. hr are proclaimed universal in their scope of application, entitlements and formulation of content. however, the particular conceptualization and concrete metanarrative where the discourse is rooted undermines any alternative ones, defying their claim of universalism. despite critical stands questioning the universalism of hr and its particular ideological sources, concrete proposals on how to shuffle what will be referred here as the ‘hr hegemonic legal order’ (dominant hr discourse)3 do not abound. alternative understandings inspired in different logics and non-dominant epistemologies and cultural backgrounds have been minimally included in the mainstream discourse. to overcome ‘ideological coloniality’ (ndlovu-gatsheni, 2018, p. 25) and navigate around existing plurality, delving into the worldviews of southern african ips is the alternative proposed here to remedy the current epistemological bias. the justification of this approach is aptly summarized in the following excerpt: it creates space for the sorely needed unfettered nurturing of african thought-forms. for the discipline of philosophy in general, this paradigm is instrumentally necessary as the polycentric production of knowledge ensures the enrichment of philosophy by an open cross-pollination of ideas and intellectual experiences from diverse geo-cultural perspectives. (lamola, 2015, p.13). the point of departure of this critique is the relationship between hr and a particular idea of justice, which consequently implies the normativisation of the corresponding ethical values and principles deemed necessary for a good life in accordance to such a conception. the logic behind the positivisation in il of those underlying values lies in a promise of universality that is derived from the belief on the unity of the human species, 3 discourse as the expression of ideological representations. (van dijk, 2013). transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 278 which implies, in turn, the existence of certain universal values applicable to every human being all over the world. according to argentinian political theorist and philosopher ernesto laclau, the term universal was first understood as the ‘logic of incarnation’. later on, that interpretation was surpassed by the logic of rationalism that emerged with modernity and consolidated with the enlightenment, and at a later stage, the universal became ‘the symbol of a missing fullness’ (the empty signifier).4 that logic constitutes the terms and the frame of the conversation that articulates the specific message of the current hr grammar. the particular conceptualization and legalistic discourse of the dominant hr grammar vested with the universalising logic mentioned above remained far from embracing the diversity represented by the cultures and societies upon which it aims at exerting authority and justiciability (the logic of rule). instead of becoming a reflection of extant plurality (shifting from universality to pluriversality), that promise of universalism turned into a claim that has been presented as an undisputed fact. thus, the unresolved controversy around the particular ideological groundings, the western philosophical roots of the hr discourse, will be part of the analysis in relation to the making of ihrl instruments below. for the purpose of this text, the concept of universalism will be distinguished from that of universality, following goodale’s distinction by which universality refers to the claims at the core of the modern idea of human rights: that everyone at all times is the same because they share a common humanness… human rights universalism, by contrast, refers to the complicated discursive presence of these claims as they are acted upon within existing legal, moral and political practice (goodale 2009, p. 15). regarding the universal attribute of hr, we can therefore distinguish between two perspectives: concerning the universality of certain claims and prerogatives, and in relation to the underlying principles of hr as a concept protecting human dignity5 and worth. connected to the latter view, the universal character will be analysed in connection with the modern hr conception6 and conceptualization, namely universalism. as pointed out above, this piece problematizes the hr conceptualization as it is embodied in the ihrl corpus. hr are placed here within the limiting characteristic of the “ideological processes” described by herrera flores. he distinguishes ideological processes from cultural ones. the difference lying in the inability of the former to intervene 4 “the relation by which a particular content becomes the signifier of the absent communitarian fullness is exactly what we call a hegemonic relationship. the presence of empty signifiers… is the very condition of hegemony” (laclau, 2007, p. 13). 5 ugandan academic mahmood mamdani and beninese philosopher paulin hountondji both defend the approach by which hr are understood as a philosophical basis for the protection of human dignity. 6 by conception it is understood here the construction of a concept which might vary with time and circumstances. it provides the rationale of the need for completing a discourse that comes out incomplete. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 279 in the hegemonic methodology, therefore, limiting alternative social action intended to influence, challenge, and change hegemonic relationships.7 il is seen here as a site of politics, of power. decolonial theory, beyond having enabled noticing the imbalance between what has counted so far and what has been rendered invisible, assists in the task of decentring; it implies reimagining and rearticulating power, change and knowledge through multiple epistemologies, ontologies and axiologies. however, in dealing with alternative epistemologies and other world-views distinct from the dominant ones (as in the case of ips and of peripheral categories in general), one must keep in mind grosfoguel’s caveat: “the fact that one is socially located in the oppressed side of power relations does not automatically mean that he/she is epistemically thinking from a subaltern epistemic location” (grosfoguel 2011, p. 6). decolonial theory allows for the critical approach necessary to analyse those relevant aspects for decentring beyond a mere postcolonial critique. it more aptly accounts for the perpetuation of the colonial features in a post-independence era8 as it happens at present in the african context. acknowledging grosfoguel’s caution and aware of the complexities around issues such as identity, collective representation, culture, etc., an enlargement and addition of richness can and should be advanced arising from those marginalized realities and excluded epistemologies, including the ones of ips. thus, thinking hr in the current global context of pluralism, multiculturalism,9 secularism in dialogue with religion/s (both revealed and unrevealed), of globalization10 and parochialism, requires decentring universalism. it calls however for a dialogical inclusive and transformative collaboration, to challenge the limitations of the hegemonic discourse and explore relational ways of being and existing in a common world, in order to transition from be-ing into we-ing. 2. “the contingency of law’s grounds”11 “the future demands thinking beyond the greeks and eurocentrism”, “a radical reconceptualization of the human rights paradigm” (mignolo, 2003, p. 85; 2000, p.12) 7 “con esto lo que se hace es desplazar la primera tensión cultural hacia el campo de una acción social funcional a los intereses hegemónicos, pues cualquier tipo de universalismo apriorístico a lo que nos conduce es a legitimar la expansión, universalización o globalización de un particularismo” (herrera flores, 2005, p. 100). 8 for a distinction between the terms neo-colonialism and post-independence see cultural-studies academic shohat, 1992. 9 comaroff and comaroff refer to the more apt term ‘policultural’, in which the prefix poli marks both plurality and its politicization. it refers to “an argument grounded in a cultural ontology, about the very nature of the pluri-nation”. comaroff, j. and comaroff, j., 2012, p. 77. 10 “globalization can be understood as development without nation-states.” sachs, w. in kothari, 2019, p. xii. 11 “the unity of the world remains diverse, multiple. but law has to have a foundation, for there is no authority in the world arising ex nihilo. the key to any possible praxis of decolonising il thus lies here. making clear the contingency of law’s grounds.” (pahuja, 2011, p. 260). transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 280 the following lines aim at reconstructing the genesis of what is comprised within the contemporary use of the term ‘hr’ as per its mainstream meaning.12 in the horizon is the comparison between what the concept entails as per the dominant conceptualization13 within the ihrl corpus, and the understanding of what it signifies from the perspectives of non-dominant world-views and epistemologies, for this proposal, those of ips in southern africa.14 since its inception, given the leading and deciding role played by the main european powers in the creation of il and hr law, as well as the marginal and subordinate position of the majority of non-western countries and societies (including those of ips), il could be characterised as a hegemonic discourse, and consequently, as a source of domination.15 the contingency of law has been drawn by power imbalances. gómez-isa considers a civilizing mission as one of the core aspirational principles of il (2017, p. 173).16 along the same lines, elvira pulitano has referred to traditional il as “quintessentially eurocentric” (gómez-isa, 2017, p 173). in a similar vein, haskell asserts that: international law has perpetuated the colonial legacy by crystallizing the european-oriented political model of a centralized administrative state as the sole gateway to international legal personality… thereby supressing indigenous modes of organizing political life or structuring the distribution of material resources and social power. (haskell, 2014, p. 399). however, the erasures have been plenty, not just circumscribed to political organization structures and state’s centrality, but including aspects such as customary rules and traditional justice systems, indigenous conflict resolution strategies etc.17 the reach and daunting impact of that hegemony requires a critical interrogation to identify biases, wicked schemes and strategic positionings in disguise, as well as an analysis to help exploring alternative paths. after realizing the limits of one’s own conceptual 12 “the strange thing about legal objectivity is that it quite literally is object-less.” (latour, 2004, p. 35). 13 the construction of concept (abstract meaning) that might vary with time and circumstances. quoting donnelly (2007): “hr are (relatively) universal at the level of the concept… particular rights concepts, however, have multiple defensible conceptions. any particular conception, in turn, will have many defensible implementations.” it is at the level of concept, despite partial disagreement on the foundations, where the functional and ‘overlapping consensus’ universality lies. p. 299. 14 the preamble of the african charter on human and peoples’ rights of 1981 (achpr 1981) refers to “taking into consideration the virtues of their historical tradition and the values of african civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights”. in the same line, other voices highlight that “the communitarian and obligation-oriented cultures of east asia generate particular asian values that are incompatible with western, individualistic human –rights notions, and in fact generate different conceptions of justice, solidarity, and governance that ‘work’ as effectively as (if not better than) those found in the west.” rajagopal, 2004, p. 213. 15 “god may have died, according to nietszche, but at least we have international law.” douzinas, 2000, p. 9. 16 this is in line with douzinas consideration of hr as “the latest version of the civilising mission”, “a hybrid category of liberal law and morality”. in douzinas, 2008 (accessed 14-3-2018). 17 despite pre-eminence of those forms are also influenced by the same power imbalances: “articulations of cultural norms are expressions of power relations that are often limited to the dominant voices in a specific social interaction.” (nyamu, 2000, p. 11). davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 281 repertoire (holbraad, in blaser, 2013), complementary epistemological frameworks will help to overcome the bias contained in the features of the hegemonic hr conception, which is rooted in the european constructed identity: secular, anthropocentric, universal. the option suggested here is to theorize hr through ips’ worldviews. such an approach would contribute to the incorporation into the mainstream discussions and discourse of conceptualizations grounded in ips’ own epistemologies: concerning the relationship towards unity with nature;18 the past, present and future, the visible and the invisible; the living, undead and non-living entities; the self and the whole, etc. as well as other features favoured for example by many african traditions: duty-rights conception,19 nonstate centric logic, individuality-community, peoples’ rights, citizenshipmembership (of family, clan, kinship), family as natural unit and basis of society.20 therefore, in aiming at attaining cognitive, axiological and normative justice and genuine participation in global affairs and il, ips’ have to move to the centre of the discussion and contribute to the terms of the conversation by redefining the framework where the deliberation is taking place. this is the first step for a pluri-cultural exchange grounded in an inter-epistemic communication “toward pluri-versality as a universal project” (mignolo, 2007, p. 499). 2.1. locating the making, rooting the discourse: “when western speech becomes universal, its native speakers the west – will be running the show.” (koskenniemi, 2011) this section strives to unveil the eurocentric foundations of the hr discourse. it has as its point of departure the solid and profuse critiques that point at eurocentrism (western epistemology and western legal thought) as the foundational logic behind hr and the principles of justice behind it.21 such a western hegemonic paradigm of knowledge is what peruvian sociologist anibal quijano names ‘the provincial [pretence] to universality’ (mignolo, 2007, p. 493). realizing the different degree of influence and unequal contributions from different cultures, belief systems and traditions, evinces the hierarchical position of the various actors involved in the process. il professor antony anghie stresses the colonial origin of il and its role in legitimizing imperialism. his analysis points at the concept of sovereignty (westphalian sovereignty)22 as central for the bias of the discipline and the subordination of non-western states. the proclamation of those standards as universal (european turns international) emerged from the xix century onwards, deriving and consolidating in what he calls the ‘dynamic of difference’ between european culture (considered universal) and the rest. 18 pointing at what gudynas refers to as the ‘biocentric turn’, in escobar, 2012. 19 “individual rights are not absolute. … the duty is based on the presumption that the full development of the individual is only possible where individuals care about how their actions would impact on others.” mutua, 1995, p. 369. duties are owned to the family and community, not only to the state. 20 art 18 para 1, organization of african unity, 1981. 21 anghie, barreto 2012, burke, mutua, nussbaum, pahuja, pulitano, sinha. 22 in the terms conceived by the west even though they were presented as neutral and universal; secular, rooted in principles of legal personality, justice, political institutions, etc. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 282 thus, negating it to the later and therefore justifying the civilizing mission upon ‘inferior’ cultures, intervention and conquest that where until then justified by natural law. the shift from doctrines of naturalism to positivism, the sovereign state becoming the central entity of power leaving aside other traditional societal formations and growing into the source of law and the subject of it upon consent, discriminates between some states which are subject of il (the west, civilised) as opposed to those considered object of it (the rest, uncivilised). state sovereignty consolidated the state centric vision according to which the primary responsibility as duty bearer lies on the state, reinforcing the state as the source of normative framework, of enforceability, protection, accountability, provider, etc. this dichotomous understanding exempts other actors from bearing any form of responsibility (being them corporations, development actors, non-governmental organizations ngos, communities, etc.). furthermore, focusing mainly on the role of the state as the guarantor of rights, legitimizes and reinforces its role within a system (market, economic development, globalization, welfare state) that generates many of the crisis, violations and challenges that are paradoxically, connected to the wrongs that ihrl should right. simultaneously, this doctrine allowed for the maintenance of the terms defined by the west in the international arena,23 given that the only law binding to a state would be the one to which that state had consented. this differentiation would translate into economic subordination. it brought about the categorization of developed and underdeveloped states (economically considered) influenced by an understanding of development as a linear path, resulting from the geo-economic reality while reinforced and sustained by the system designed by il (bassey, in kothari, 2019). a decolonial approach brings a new perspective to the analysis, one that places the accent on the different historical locations and contexts behind the making of il, and investigates their reach. this study sees the consolidation of the dominant hr grammar that translated into the ihrl corpus from the specific context where it took place, the colonial encounter and ‘colonial subtexts’ (flynn, 2016). it was that particular context of power asymmetries what marked not only the content and development of the discourse, but also its global expansion, consolidation and its later pre-eminence as it is known nowadays. a critical genealogy of the dominant hr narrative traces its conceptual foundations back to the enlightenment, which crystallized the rationalisation of life and the world, the universalisation of reason, the individual as the centre and the rule of a secular rationale.24 that determining theoretical background, which contributed to the process that culminated in the birth of modern ihrl in the xx century and its strengthening ever since, developed in the context of modernity. its main defining features being liberal democracy, rationalism, individualism, secularism, industrialization and capitalism. that context, which influenced and defined the main features of the mainstream hr formulation, made them ill-suited for contexts other than western societies (according to ibhawoh’s interpretation of sinha’s 23 while operating at every level, “international, national; economic, political and social; private and public” page 752, anghie continues: “international law seeks to transform the internal characteristics of societies.” anghie, 2006, p. 751. 24 “from theo-logy to secular egology” mignolo, 2007, p. 451. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 283 argument). sinha identified three main elements that define the western conception of hr: the individual as the unit of society (rather than the family),25 rights as the basis for securing human existence (instead of duties and obligations), and lastly, legalism as the method for securing those rights (as opposed to reconciliation, education, repentance). these elements coincide with the values previously identified by sinha as the “axiology of the international bill of hr” (sinha, 1989). his main claim being that the central values around which hr are erected correspond to a particular western historicity (a ‘single catalogue approach’) not accounting for the plurality of value systems present in other civilizations that are equally aimed at protecting human emancipation and guaranteeing the spiritual, physical existence and well-being of the person and the group. while some elements are not exclusive of the western civilization, the main principles respond to the values that govern the social and political organization privileged in the west. there is no doubt that the world reflects a tendency towards a global cosmopolitanism with some shared models and values concerning different spheres of life; issues such as life, protection against inhuman and degrading treatment, working and living standards to a certain degree, education, are common basic concerns. however, different cultures might have a different understanding of those aspects, of how to resolve them in practice and thence, exercise them in plural and diverse ways. the following quote exemplifies this paradox: we assumed that this was because women did not know their rights, so we ‘educated’ them. but then we saw that even when women were ‘educated’ about the law, they still did not go to court to enforce their rights. we then assumed that was because there were ‘other factors’ such as fear of courts and inadequate finances. to overcome these we then helped women enforce their rights. but this did not always work either. one of the running point in our ideas was when group of wlsa members helped a woman go to court and obtain a court order declaring that all the property which she had [been] in her house was hers and that her deceased husband’s family should return it to her. they did so. however subsequently, the widow took all the property and delivered it back to her husband’s relatives. (juma, 2006, p. 199).26 when particular qualifiers rooted in a specific tradition are translated into the articulate of hr instruments, they might not correspond with what the same or similar ideas, values and perceptions mean in different cultural setting or societal models beyond the basic commonalities that the concepts themselves enclose. this inconsistency does not refer to controversial practices that are being progressively discarded by members of the cultures where they have traditionally been part. the quandary appears when a system, claiming to be universal, opts for one model (out of the many) preventing an alternative model which is felt as one’s own from thriving. examples of this relate to the definition 25 see chantal mouffe’s view of ‘non-individualistic conception of the individual’: “la individualidad solo se construye a través de la inscripción en un conjunto de relaciones sociales… sin reducirla a mero componente de un todo orgánico.” (mouffe, 1999). 26 report statement about widow inheritance in southern africa exemplifying the complexity of strict application of hr law. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 284 of family (nuclear versus joint, extended, lineage or kinship), the understanding of life (when it starts and when does it end), equal versus hierarchical human relationships that give value to the person and relationships, an industrial economic system versus other economic models, private property versus communal uses, judicialisation versus diverse conflict resolution mechanisms, and so forth. that points toward a civilizational uniformity (sinha, 1989), which does not correspond to the plurality of worldviews and apprehensions of reality. once the genesis of the hr discourse is outlined, the bias and limitations of the particular ideology supporting it unveil, and the lack of inclusive and plural underpinnings is revealed. notwithstanding, the structure of the modern world is grounded in the epistemology of the world’s capitalist economy whose intellectual and cultural scaffolding is rooted in elements such as: liberalism,27 division between science (the truth) and the rest (the good and beautiful), longing of universality, discriminatory and excluding practices. however, the crisis of the capitalist world economy when it comes to the unfeasibility of its sustainability, comprises its epistemological foundations and knowledge structures as well as the modern world itself.28 after locating hr in the historical context of modernity and shedding light on the ideological features which were the backbone leading to the formulation of hr (in the sense mentioned above; ihrl), this paper will examine the conceptualization of hr themselves. despite exploring the foundations of a normative system implies digging for its authoritative features (being them god, the human being,29 human dignity, duty,30 morality, etc.), this study will not delve into the philosophical and metaphysical foundations of hr. paraphrasing goodhart (in goodale 2014), the focus of hr debates around their philosophical foundations, have caused more heat than light. thus, settling that debate goes beyond the aim of this paper. the argumentation here concentrates on the study of the ideology31 behind the content of the dominant discourse of hr, namely; those characteristics that shaped the precepts influenced by the context from which they emerged. it will also critically analyse the positioning and determining role of the actors participating in the adoption of those instruments that conform the ihrl corpus, that 27 according to zaidi and normand thesis regarding the foundations of hr, they “grew out of the triumph of liberalism over its two main rivalscommunism and fascism.” (normand, r. and zaidi, s., 2008). 28 the “euro-north american-centric modernity”; the asymmetrical world system characterised by the coloniality of power, the global or international order/european world order (defined by imperialism and coloniality), capitalism, techno-scientific epistemology, a hierarchized conception of being, christiancentrism. (ndlovu-gatsheni, 2015). 29 maldonado-torres’ genealogy of hr and of the notion of the human as the foundation of hr, reveals a secular humanist project which led to the conception of the human which became the dominant, characterised by the following traits: secularism, individualism and racism. (maldonado-torres, 2017). 30 “all rights to be deserved and preserved came from duty well done.” statement by m. gandhi in his ‘letter to the dg of unesco’ of 1949. ulrich, g. in (mccall-smith, k., wouters, j. and gómez-isa, f., 2019). 31 ideology is understood here as the system of ideas that is instrumental for hegemonic purposes of domination and maintenance of control. it deals with the values, terms and understandings comprehended in ihrl instruments and precepts as well as the views and perspectives of a certain epistemology. as opposed to a metaphysical approach of an ontological inquest that would put the accent on what exists, a vision of the human being. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 285 ‘ideological-institutional complex’ (pahuja, 2011) which is il. those actors served as persuasive and influencing vehicles in advancing a specific discourse grounded in a particular tradition of thought and values. the results arising from the study of the origins and roots of the theoretical construction behind the dominant hr discourse unveil the factors that gave rise to the protection of certain values over others that crystalized in the current mainstream hr narrative and its current dominance. the modus cogens whereby the european intellectual inventory and assumptions are taken as universal to the detriment of other epistemic cultures, values and traditions, responds to specific patterns of reasoning that can be transformed by the selected theories. the chosen theoretical framework where this study locates itself relates to decolonial theory and twail approach. they enable unveiling the epistemic injustice behind the process of endorsing a set of normative principles under the rubric of hr whose content is loaded with an aspiration of universal validity, and an illusion of consensual global agreement and support. summarizing, this piece defends a thesis that locates the dominant hr ideology in western principles and values as explained above. it asserts that the hegemonic hr discourse (positivized in the ihrl) is grounded in a parochial and anthropocentric culture with a narrow understanding of the (human)-being and its relationship with other/s (beings, nature, past-future, etc.). one of the features of a western understanding of hr is universalism,32 a consequence of hr arising as ethical, symbolic and normative guidelines and standards as in a unitary globalized world. stemming from that particular conception33 that lies at the basis of the creation of hr and its intrinsic universalism, some authors infer imperialism34 as the necessary logic consequence of this claim of universal character (huntington, 1996), or at the minimum, its instrumentalisation as an enabling discourse for empire (mcminn, 2012). as wallerstein puts it, paradoxically, “there is nothing so ethnocentric, so particularist,35 as the claim of universalism”36 (wallerstein, 2006, p. 40). 32 the universal as a ‘hegemonic act of radical construction’ (emphasis added). laclau, 1990, p. 29. 33 “these values cannot be privileged globally if they are identified as ‘ours’. instead, they must be seen as universal in everyone’s estimation; the world must ‘recognize’ their universality. the representational violence inherent in the appropriation of ‘our’ name hints at the way that the recognition does not entail actually globalising or sharing the universal values, whether or not that be a good thing. instead, it entails ‘recognition’ of the rightful superiority of some values, and the maintenance of the hierarchy that places those values at the top, along with the maintenance of all the divisions and advantages that entails.” pahuja, 2011, p. 257. 34 what has been described as ‘moral imperialism’ (hernández-truyol, 2002). among the authors that defend that imperialistic trait of eurocentric root bound to hr are the following ones: shivji, mutua, pollis and schwab, burke, douzinas, moyn, mbaya, 1997. 35 “the conclusion seems to be that universality is incommensurable with any particularity yet cannot exist apart from the particular.” laclau, 1992, p. 90. 36 “so european imperialist expansion had to be presented in terms of a universal civilizing function, of modernization, etc. as a result, the resistances of other cultures were presented not as struggles between particular identities and cultures, but as part of an all-embracing, epochal struggle between universality and particularismsthe notion of peoples without history expressing precisely their incapacity to represent the universal.” laclau, 1992, p. 90. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 286 this european claim of universalism is in fact, a particularism derived from european values and views that aspire to become a universalism of global validity.37 thus, the ideas endorsed in hr were promoted within a framework of imperialism38 in order to protect the status quo and maintain hegemonic power. that reveals a strategic approach consisting of advancing certain rights whereas the enforcement and respect of those same rights elsewhere to the benefit of the colonized population was not recognized.39 examining the dominant hr grammar from a historical perspective by looking at the strategic positioning of states contributes to unveiling the interests and preferences that propelled a specific hr view over another along the history of hr making. a critical and contextualized historical account of the intricacy of the making of the ihrl corpus reveals a multi-faceted process located within complex political, security and economic frameworks and narratives (jensen, 2016). for reasons closely connected to geopolitics and interests determined by the historical situation, the stance taken by country representatives shifted in time, accommodating itself to the vicissitudes and changes of the historicalpolitical context. this will be illustrated in the following section through the study of the making of the udhr. 2.2. relative universalism or “not at all” in preparation for the drafting of what would become the udhr, the united nations educational, scientific and cultural organization unesco conveyed a committee of philosophers to work on the philosophical underpinnings and foundational principles of hr in order to bring stronger legitimacy to the question of its universality. in addition, a survey was undertaken before the conference of philosophers. however, the participation was limited and unrepresentative despite its global aim, as were the responses and the background of the contributors: 45 replies came from the usa and uk only, 16 from western europe, three from south africa, two from australia, one from canada, (accounting for 80 per cent of the total number), six from the soviet bloc, three from india, two from latin america, one from china (goodale, 2018b). the lack of agreement among the thinkers and philosophers present at the symposium evidenced the distance between the diplomatic stands in charge of the drafting of the declaration and that of the intellectuals concerned about the topic (goodale, 2018a). one of the main drafters of the universal declaration of human rights in 1948, rené cassin… knew at the time they were deferring for the sake of consensus all the difficult questions about the authority of human rights so as not to ‘delve into the nature of man and of society and to confront 37 “any instantiated ‘universal’ is always particular.” pahuja, 2011, p. 256. 38 “the essence of imperialism is the evacuation of alternative discourses on the basis of what the imperial power believes – earnestly or notis the correct, or morally superior, or economically more advantageous set of perspectives and practices. since hr norms do not emerge fully formed in different parts of the world… there will always be the problem of how ideas about human rights are accompanied and shaped by political, economic, and other forms of power.” goodale, 2009, p. 108. 39 in the period of the early 50’s, “cultural relativism was the language of the western colonial powers, which resisted any attempt to extend human rights to their colonies.” burke, 2010, p. 114. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 287 the metaphysical controversies, notably the conflict between spiritual, rationalist, and materialist doctrines on the origins of human rights. (hopgood, 2013, p. 188). the quote above illustrates the shifts in positioning to come regarding the universalism/relativism discussion, starting with the preparation of a universal document on hr in the 40s’. agreeing on the sources to achieve consensus seemed unrealistic at that time. at this point it is useful to clarify the distinction between accepting an outcome based on the same reasons (consensus), or based on different reasons (leading to agreement). the former consolidates moral rules whereas the latter leads to legal rules. following donnelly (2007), it is at the level of the concept (of human dignity and the nature of justice), in spite of disagreement over the conceptualisations, where the functional and overlapping consensus enabling universality lies. thus, the proclaimed universality of hr was more a rhetoric label that contributed to confer validity and legitimacy to the ideological doctrine as has been previously explained. the ‘institutional complex’ and intentional commitment towards the hr project was propelled by the events of the world war ii as well as by the optimism for a peaceful future that was vested in the hr project. rather than a truly embracing set of values and ideas depicting the diversity and richness of the world’s spectrum of cultures in truly comprehensive, plural and inclusive terms. the question of universality can therefore be understood twofold: with regards to the content comprised in the hr conceptualization and ihrl, and concerning its applicability. in relation to the latter, it relates to who fell under the category of beneficiaries of hr “along the same axis of inclusion and exclusion that has characterized their liberal antecedents” (kapur in rathore and cistelecan, 2011, p. 37): the man, the civilized/noneuropean colonized, women, black people, the other, the human being, etc. it determined who those subjects of the rights and liberties enlisted in the different hr legal instruments were. the focus of this analysis lies in the former; namely, the universalism of the elements that fed the content of hr as a set of values and goals of fundamental relevance as to be proclaimed essential for every human being (at least in theory). baxi denounces that the notion of universality (understood in the sense just explained), does not merely deny “difference but also monopolizes the ‘authentic’ narrative voice” (baxi, in rathore and cistelecan 2011, p. 61). for hopgood, this grand narrative (corresponding to universal humanist norms) is the “ideological alibi to a global system whose governance structures sustain persistent unfairness and blatant injustice” (hopgood 2013, p. 2). he argues that humanism resulted from the social transformations, industrialization and scientific order (the ideology of modernity) being its main manifestations international justice, humanitarism and hr. at the time of the making of the udhr, only around 50 countries were part of the united nations (un). the discussions and approval of the declaration took place at the beginning of the period of gaining independence from colonial power (only four african countries were part of the un), and the political context of the time marked the process as well as the outcome of the drafting. by the year of its adoption in 1948 not transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 288 a single state in africa was considered a democracy. more than 30 years later, in 1981 (the year of the adoption of the african charter), only four states (out of 38 worldwide) were consider democratic states (namely botswana, the gambia, mauritius and nigeria).40 once the number of independent african countries grew bigger, they played a countering role as non-aligned countries as per their contributions to the hr debate. they positioned themselves as supportive of certain rights and categories of rights that are part of the hr discourse, namely: self-determination (in defence of national sovereignty and democracy) and freedom (in opposition to racism and discrimination). during the so-called bandung41 era, non-western country representatives were defendants of hr universality (at least in theory, as an instrument to advance anti-colonialism and as a tool against racism): the successful defence of the udhr at bandung by the small countries of asia, and to a lesser extent africa, was a remarkable achievement. it demonstrated the significant engagement many of the new states had with the concept of hr in the early phase of their achieving political independence, and the absence of any prejudice against the principles in the universal declaration, despite the western intellectual provenance of both its form and a considerable number of its provisions” (burke, 2010, p.33).42 recently independent african states pushed for the universality of the text of the declaration, hr and the principle of self-determination: “there was no call to preserve traditional ways of living or other ways of protecting cultural spaces, though colonialism and racism were condemned as means of cultural suppression” (rajagopal, 2004, p.76). those priorities and views were stated in many debates during the period comprising the transition towards independence: at the conferences of african independent states (accra 1958 and addis ababa 1960), during the monrovia meeting for foreign ministers (1959), in the united nations general assembly resolution 1514 ‘declaration on the granting of independence to colonial countries and peoples’ (1960), during the african conference on the rule of law (lagos 1961). during that meeting, former senegalese president abdoulaye wade considered that certain ideas and institutions given by the west had become “our common property” (international commission of jurists, 1961). however, this position will change two decades later. the agreement around the universality of hr would fluctuate from the tehran conference43 onwards (may 1968). 40 based on data retrieved from roser, 2013, online source. 41 the bandung conference took place in april 1955 bringing together 29 countries from asia and africa against colonialism and to agree on guiding principles for their cooperation as non-aligned powers. during the conference, the full support “of the fundamental principles of human rights as set forth in the charter of the united nations and took note of the universal declaration of human rights as a common standard of achievement for all peoples and all nations” was declared. bandung conference, 24 april 1955, p. 5. 42 in this regard “the appearance of consensus, however, did little more than paper over ideological cracks within the human rights idea. fundamental philosophical questions about human rights were suppressed in favour of a dominant western paradigm of individual rights; practical disputes were resolved quickly and expediently on the basis of u.s. power and, when necessary, the vote.” (normand and zaidi, 2008, p.177). 43 the tehran conference was organized by the un general assembly in order to “promote further the principles contained in the udhr, to develop and guarantee political, civil, economic, social and cultural davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 289 historical analysis evidences a shift of priorities that peaked at the tehran conference: “from the western-inflected concept of individual human rights exemplified in the 1948 universal declaration to a model that emphasized economic development and the collective rights of the nation” (burke, 2008, p.276). the importance of individual rights,44 national sovereignty or self-determination, was asserted until then against the background of the threat of communism (in the case of western countries) and colonialism (by non-western countries that defended racial equality). states’ territorial integrity, inviolability of borders and non-intervention were given preference by recently independent countries, due to the end of the territorial colonial domination and the consolidation of self-governance and sovereignty (not emancipation). rights were strategically prioritized by all parties based on the historical context and worldwide power struggles in a period between the colonial era and the rise of post-colonial dictatorship in many independent african countries. the convergence and prominent agreement among those powers was therefore of a negative nature (eckel, 2014), namely as an opposition to western ideology and colonialism (“a strategy of anticolonial legitimation”).45 following jensen’s analysis (2016), we can interpret the support of european countries in the process leading to the adoption of the udhr as a strategic way of solving the issues of the post-cold war context. not that much based on a firm conviction that those rights and principles enshrined should be extended to those in the global south, which were still at that time under colonial rule. paradoxically, “the western countries were calling for adherence to international standards and binding instruments to which they themselves had not committed” (jensen 2016, p. 232). this type of timeserving pushes were part of the hr and il making politics and diplomacy. they were used by the states to achieve their own strategic aims and to justify their own foreign policies, domestic shortcomings, and to denounce other countries’ practices and records (within their own borders and abroad) in order to gain legitimacy and support. several factors guided the lack of interest of western powers in defending the universality of rights at the time (understood as applicable to everyone), namely, reacting against the selfdetermination claims of peoples under colonial rule that endangered their colonial enterprise as well as racial discrimination46 concerns voiced by non-western countries that defended universality. those were the main reasons for universality not being a priority in the political agendas of western countries, which prioritized individual rights such as freedom of thought, conscience, religion and belief. rights and to end all discrimination and denial of human rights and fundamental freedoms.” (united nations 1968) out of the 84 countries present, one fifth of the representatives attending this hr conference were from african countries (17 countries, equalling 20 per cent), in comparison to the 7 per cent of the 58 members voting the udhr 20 years earlier (four countries). according to burke (2008), more than twothirds of the countries represented in the conference were undemocratic. 44 quoting ibhawoh: “the modern concept of human rights stems from the contemporary articulation of legal entitlement, which individuals hold in relation to the state” in tiyambe zeleza and mcconnaughay ed 2004, p. 23. 45 “the afro-asian group’s shaping of the un human rights agenda cannot be considered as a series of steps developing a universal rights regime. rather, their human rights policies were part of a symbolic struggle to counter the dominance of first world nations in the international sphere.” eckel, 2014, p. 129. 46 the convention on the elimination of all forms of racial discrimination was only approved in 1965. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 290 that same differentiation which hampered universality reinforced by the reluctances to worldwide applicability of the same rights for all peoples, lies behind the american anthropological association (aaa) position at that time, in a famous statement submitted to the united nations commission of hr (hrc): standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any declaration of human rights to mankind as a whole. … today the problem is complicated by the fact that the declaration must be of worldwide applicability. it must embrace and recognize the validity of many different ways of life. … the rights of man in the xxth century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. … only when a statement of the right of men to live in terms of their own traditions is incorporated into the proposed declaration, then, can the next step of defining the rights and duties of human groups as regards each other be set upon the firm foundation of the present-day scientific knowledge of man. (aaa, 1947, p. 542). this excerpt evidences the view of the aaa at the time in two ways: firstly, the standards contained in the udhr were rooted in a specific particular tradition (western). secondly, the values enshrined in a declaration aimed at having global validity and universal applicability could not emerge from a single culture. however, with the adoption by the aaa membership of the declaration on anthropology and human rights committee for human rights in june 1999, aaa’s position shifted to embracing the mainstream hr rhetoric.47 this presents us with the challenge posed by wallerstein of particularizing our universals and universalizing our particulars. in addition to the situation described above and exemplifying the feeble support and value conferred to hr, the use of its terminology was not a prominent one in the claims among activists, leaders from african countries,48 nor by anti-colonial figures. besides, when it was present it did not always had the meaning conferred to in the ihrl corpus. several authors highlight a shift in the official support of hr from countries formerly under colonial rule in the late 60s’ and 70’s: the cultural relativist turn49 was not merely an expression of authoritarianism. in addition, it was a reaction to the new hr interventionism of western actors, both governments and ngos, rapidly expanding in the 1970s and primarily directed against third world nations. (eckel, 2014, p. 122). 47 despite this apparent turnaround, some authors claim that the issues and positioning of anthropologist did not vary, being culture the focus of concern and the controversies extent (engle, 2001). 48 even though, as burke acknowledges, some colonial leaders and nationalist manifestos showed support to hr in the 50s’. (burke, 2006). 49 however, cultural relativistic views in relation to hr were first declared by western democracies in the terms explained above. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 291 universality was now imperialist. western countries strongly advocated for hr in order to pressure the so-called third world countries for their poor records. as for non-western countries, cultural differences, local cultural practices and traditions, customs, ancient laws and practices were put forward as the basis for refusing to concede ‘universality’ to hr. within the un, the division between blocs was felt not only in terms of the voting majority (which was still dominated by western countries despite the influx of newly independent states). the challenge/threat to western hegemony and the divide between colonial powers and the rest was manifest in the discourse of several influencing figures, which referred to the circumstances of the time in the following terms: “backward countries in revolt”,50 “dark skinned people against the white”,51 “the antithesis between the developed and the less developed”.52 the increasing weight of nonwestern powers was evident by the time the two covenants developing further the rights enshrined in the declaration were adopted in the late 60’s53 (international covenant on civil and political rights iccpr and international covenant on economic, social and cultural rights icescr)54. moyn reads this lapse of time as illustrative of the “fiction of ideological consensus about basic values could no longer be maintained” (moyn 2012, p. 79). furthermore, authoritarian and undemocratic regimes pushed for a decrease of the relevance of individual rights and democracy, which according to rajagopal “has replaced modernization as the discourse of social transformation in the third world” (2004, p. 160). a few years later, the new grammar would be development rather than democracy, veiled under the hr rhetoric. a relativistic approach dominated the debates from then on during the 80’s and 90’s until the vienna conference in 1993 where universality was strongly endorsed.55 2.3. uprooting the discourse, dislocating the making the previous section described the complex process and ideological turns that culminated with the conceptualization of hr in their contemporary sense, and their 50 john humphrey (canada), first director of the united nations human rights division, he had a significant role in drafting the udhr. in burke, 2008, p. 279. 51 eleanor roosevelt (usa), us delegate to the unga (1946-1952) and first chair of the hrc (1947-1951). she played an important role in drafting the udhr. burke, 2008, p. 279. 52 charles malik (lebanon), lebanese representative to the un, president of the un economic and social council ecosoc, second chair of the hrc. he played a crucial role in drafting the un udhr. burke, 2008, p. 279. 53 quoting burke’s visual description: “structurally, the commission on human rights was no longer tilted toward the west, with an expansion and redistribution of seats to asia and africa in 1967. as the western diplomats looked up to the newly computerized voting boards of the general assembly, they saw a graphic representation of their minority status. if they looked down at the agenda of human rights items, dominated by economic development, apartheid, and racism, the effects of the un’s postcolonial transformation were unmistakable.” burke, 2008, p. 282. 54 in relation to the content of those instruments, “what western states sought to achieve was moral leadership through rhetorical support for economic and social rights, while at the same time ensuring that such rights did not bring any obligations”. kirkup, a. and evans, t. 2009, p. 232. 55 “the only unequivocal ‘fact’ that emerges from this ambivalent and diffuse historical picture is that human rights emerged in the 1940s from earlier incarnations as a powerful signifier which, because of its very conceptual openness and semantic indeterminacy, has engaged people’s imagination all through to the 1970s and on to the contemporary period.” (emphasis added). hoffmann, f. & assy, b. forthcoming. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 292 positivisation in the ihrl corpus. the account focusing on the agency of delegates and representatives of states who defined and shaped debates and discourses that crystalized in a particular body of rights is considered as the diplomatic forefront of the discussion and of the consolidation of the theoretical debate. the positions and ideological priorities supported by the different actors and factions were deeply connected to the political context of the times, as has been showed above. the different stances varied along the process of consolidation of the mainstream discourse, in correlation with historical events, shifts in power and interests, illustrating the motivations (political and other) behind state representatives’ articulations (kang, 2009). rights were strategically prioritized based on the historical context and worldwide power struggles. having stated the importance of the historical circumstances and how the context influenced the inception of the dominant hr grammar, two related aspects emerging from that observation need further attention. firstly, the element of agency of the actors involved in the process. as mentioned above, so far, the focus lied on the diplomatic process and their perspectives around hr. moyn refers to “the global diplomatic elite, often schooled in western locales, who helped tinker with the declaration at a moment of symbolic unity.” (2012, p. 66). secondly, the representation and legitimacy of those actors in relation to the more abstract debate around the values of a society captured in the viewpoint advanced at diplomatic discussions, is connected to elements such as power, identity, interests, ideas56 and cultural orientations influencing different choices. a more detailed explanation of the transformation and unfolding of the theoretical debate around the concept of hr and its conceptualisation needs to be developed from a different perspective than the mainstream one referred to so far. the alternative proposal suggested here refers to the contributions arising from african philosophies as well as from the rationale of ips in the african continent. such a reflection will help illustrate the limited cross-fertilization that fed the eurocentric conceptualisation of hr despite its aspiration to universalism. at the same time, that undertaking will set the grounds for the proposal advanced here which propounds an inter-epistemic conversation inclusive of other visions of ‘rights conceptualizations’ and a cross-paradigmatic approach that incorporates ips’ epistemologies in order to enlarge the dominant discourse and its current normative content. such an attempt strives at redressing epistemic injustices of the past and enabling sustainability in the future. both have been hindered so far in part due to the prevalence of the western imaginary in the present dominant hr discourse. the dynamics and structures that prevent non-dominant conceptions, rationalities, perspectives, epistemologies and traditions, to permeate the hegemonic positioning,57 have been conceptualized as coloniality; the aftermath of colonialism (quijano, 56 when analysing the politics of development, lavers’ political settlements framework (psf) introduces the notion of ideas and how ideas, values and beliefs, shape policy choices and political settlements. he claims that ideational processes also shape interests, power and institutions (main elements of khan’s psf), as well as actors and legitimacy. (lavers, 2018). 57 “la concepción “occidental” o el “eurocentrismo” es un componente cultural cuyo sustrato epistemológico ha pretendido universalizar y naturalizar la concepción del mundo a partir del marco cognitivo, valorativo y normativo de una particular tradición cultural” (garzón lópez, 2013, p. 307) this quote from garzón-lópez davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 293 ndlovu-gatsheni). its outcomes being: “long-standing patterns of power that emerged as a result of colonialism, but that define culture, labour, inter-subjectivity relations, and knowledge production well beyond the strict limits of colonial administrations” (maldonado-torres, 2007, p. 243). in reaction to the continuation of patterns of domination and oppression once colonial territories started achieving independence, the decolonial project emerged as a project of liberation from colonialism (according to dussel) and of emancipation from modernity (maldonado-torres) to enable a dialogue between different rationalities and locus of enunciation (world-views conceptualization). it aimed at recovering what had been rendered invisible. 2.4. inclusion of alter-natives through decolonial theory having revealed that the claim of universalism results from specific predicaments grounded in a particular thinking, calls for reworking the process by which a particular conceptualization is achieved, in an inclusive and dialogical way. such is the aim of a decolonial approach. decolonial thought is rooted in the ideas present already in authors such as fausto reinaga and silvia rivera cusicanqui in latin america. as a concept, it has been coined and elaborated primarily by authors such as castro gómez, dussel, grosfoguel, maldonado-torres, mignolo, quijano and walsh. following mignolo’s definition: de-coloniality is a planetary critical consciousness that emerged and unfolded, precisely out of the limits of abstract universal of its current manifestations and out of the dangers that, in the future, a ‘new’ abstract universal will attempt to replace the existing ones; or that the existing ones will renew themselves as ‘new’. (mignolo, 2007, p. 500). this critical approach to the universal, to hr, is here in dialogue with twail58 theory and eurocentric visions of international law (evil) in order “to unpack and deconstruct the colonial legacies of il and engage in efforts to decolonise the lived realities of the peoples of the global south” (natarajan et al., 2016). despite some authors argue that twail lacks a revolutionary focus,59 too accommodating of western liberal theory, it does offer valid and important elements for change and reform, among other aspects, by shifting attention from state as the centre of il towards individuals and social movements, therefore redefining “law in radically pluralistic terms”. (rajagopal, 2004, p. 400). both decolonial theory and twail emphasize the importance of context and global history (not just from a western european perspective), in order to understand connects with post-structuralist thesis of the role of power in the creation of knowledge and discourse theory (foucault). 58 this approach includes authors like antony anghie (colonial origins of il), upenda baxi, b.s. chimni and james thuo gathii. 59 “the argumentative logic of twail ultimately operates according to the very conservative analytical framework it sets out to transcend.” haskell, 2014, p. 385. what would be alternative structures and logic to overcome this claim? transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 294 the defining features of the development of il, which for decolonial thought stem from coloniality and for twailers reside in eurocentrism. other shared characteristic are their emphasis on equality and equal dignity, caution towards assertions of universality that have often masked domination, and representation of all voices.60 in a broad sense, twail theory is critical of eurocentric international legal regimes. however, its methodological approach focuses on global historicisation (mickelson, 1998) rather than in the west, therefore, bringing the ‘third world’ to the centre. okafor stresses the following as the main defining elements of twail analysis: insistence on history, continuity, centring the third world, resisting global hegemony, demanding increased global equality, and unmasking the hand of power in the construction of knowledge.61 these elements situate this research within the scope of this approach. twail theory is a response against the unjust global order and the hegemony of the west legal, political, economical. the changes brought about by the wave of independence of states in the second half of the twentieth century consolidated among others the principle of non-interference in sovereign states. however, despite non-intervention was accepted in theory, the dynamics of powerful states continued as they had operated previously. what shifted was the terms used as the justification of those interventions. as wallerstein puts it: the justification of christian evangelization was no longer available to legitimate imperial control, nor was that of the religiously more neutral concept of the civilizing mission of colonial powers. the rhetorical language now shifted to a concept that came to have new meaning and strength in this postcolonial era: human rights. (wallerstein, 2006, p. 12). the shift that took place, displacing religion as foundational of a moral order was in part a consequence of the consolidation of scientific and quasi-scientific knowledge. in this context, and following fichte’s thesis, philosophy appeared to enable and ‘rescue utopian hope’ from natural sciences. the moral justification to legitimize interventions shifted from theological and natural law grounds to hr and democracy. democratization has supplanted modernization as the discourse of social transformation in the third world and, therefore, as the driving ideology behind il as the law that governs the relations between the west and the 60 karin mickelson (1998) defines twail at the intersection of two discourses: traditional il and legal scholarship, and the discourse of decolonization. kenyan-american law professor makau mutua defines twail as the “dialectic of opposition to international law” understood as a discourse of domination whose universalization was “essential to the imperial expansion” (mutua and anghie 2000). 61 “twail scholars (or “twailers”) are solidly united by a shared ethical commitment to the intellectual and practical struggle to expose, reform, or even retrench those features of the international legal system that help create or maintain the generally unequal, unfair, or unjust global order. they accomplish this through a commitment to centre the rest rather than merely the west, thereby taking the lives and experiences of those who have self-identified as third world much more seriously than has generally been the case.” (okafor, 2005, p. 176). davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 295 third world, and provides a principal explanation for its expansion through institutionalization. (rajagopal, 2004, p. 135). ngos and ingos have joined western governments in their role as promoters of democracy and hr. in addition to the secularization trait, maldonado-torres (2017), in his analysis on the coloniality of hr, locates a crucial factor in the way the notion of the human is understood. despite he recognizes the value of the udhr when it came to the recognition of the human, he also acknowledges “the effort made in european countries to find a place for man involved the creation of a new entity separate from god and nature or animals” (maldonado-torres, 2017, para. 16). however, this conceptualization of the man still enabled in his view, the categorization based on hierarchical ontological differences. thus, tinged with one of the basic characteristics of coloniality: the ontological difference (which he defines in terms of damnation following fanon). nevertheless, consensus around hr remains an open to question. supporting it does no longer come from undisputed knowledge. on the contrary, at the most it is grounded in speculative knowledge (rather than in scientific universalism), therefore nonfalsifiable and consequently contestable, lacking authoritativeness and irrefutability. that is where we are situated nowadays in the debate around the validity and universalism of hr. perhaps the foundations of what we can refer to as intuitions in the realm of the good life and justice, will find theoretical basis in the future by including types of knowledge which are rejected and casted out currently for their lack of scientificity, or by better science in the future (van binsbergen, 2008). in any case, sceptical and critical voices concerned about the lack of pluriversality might cling to hr as “the most we can hope for,” (ignatieff et al. 2001, p. 173) even if that justification is just a temporary one. awareness of the justifying elements and reasoning that helped legitimating certain imperial projects in the past allows one to examine the development of ihrl corpus through critical lenses that seek to unveil power, interest and ideas as paramount players within the hr discourse making and the knowledge paradigms it contains. this approach lies within a broad goal of ideational change and epistemic transformation.62 3. conclusion: the significance of human rights what are hr to assert their universalism? many answers have been advanced from various disciplines and areas of study. are they ideals? axiological decisions (ramose), 62 it is in line with efforts of many authors aimed at addressing the gap of “carefully unpacking and resisting the sophisticated and complex processes of denial and mythmaking that have enabled this deceptive posture of innocence [of many global powers] to be maintained. this, of course, includes unpacking the myth of newness that grounds the current agitations for international law reform by certain great powers. this is one way in which room for international social (and thus legal) change can be created and enlarged.” (okafor, 2005, p. 190). transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 296 moral claims, legalized moral norms, political demands,63 the last utopia (moyn), a myth of liberal democracy (mutua), cultural capital (hopgood), an idolatry, the “major article of faith of a secular culture” (ignatieff et al 2001, p. 320), a minimum accepted everywhere, a strategic epistemology (niezen), an instrument of emancipation or a mechanism of domination (beitz), “the latest version of the civilising mission” (douzinas), an empty vessel (skinner), a site of power (kapur, in rathore and cistelecan 2011, p. 49). whatever their definition and contestation around them, they are still playing a major role in ordering the world and the lives of people/s. the argument asserted along these pages is not antagonistic towards hr. the universalism of hr is certainly questioned, not their universal scope of application but rather their current mainstream conceptualization. the emergence of hr can be located in the context of eurocentrism and the western hegemonic paradigm of knowledge with the following features: rationalism, secularism, anthropocentrism, and universalism. hr are thus seen as a construct stemming from a specific ideology, that of the western modern worldview. consequently, the western hr conception was characterised by precedence of rights versus duties, of the individual versus the collective or communal, and legalism versus reconciliation. this specific hr conceptualization, this particularism, was turned into a universal with an aspiration of global validity. however, portraying hr as universal entails an inherent hierachisation that leaves out the rest (other particular conceptualizations) and denies pluriversalism. this hierachisation justifies critiques of imperialism given that by erasing alternative discourses, those at the margins, it allows for the maintenance of the status quo, the hegemonic power and hence the dominant discourse itself. the dominance of the current hegemonic hr discourse consolidated across changes in ideological positioning and shifting support. this fluctuation responded to strategic interests and priorities connected to the political circumstances and historical context of the time. as a result, the hegemonic discourse of ihrl became a source of domination positioning itself as a universal grammar, denying difference and monopolizing the narrative voice enclosed within. however, that background casts doubts on its universalism that could be seen as opportunistic and rhetoric. in an interconnected and fluid era like the present one and given the inherent incompleteness of every one culture, dialogue is unavoidable and indispensable in order to rearticulate power, change and enable knowledge to feed the eurocentric conceptualization presented above. intercultural philosophy and critical legal theory can assist in unfolding and fulfilling such a dialogue of many (a polylogue), transcending a mere harmonization of different normative traditions and delving into the spaces where certainties blur. firstly, by identifying factors that can enable the exchange between asymmetric epistemologies (a dialogue of many) in order to expand the horizons and reconstruct the flawed current paradigm by building on alternatives to compose valid and solid solutions. to this end, the next step would be to advance concrete formulations stemming from peripheral 63 “as political claims, human rights are socially constructed; their meaning varies in different contexts and is profoundly shaped by the social forms of power they confront. their validity is thus and intersubjective phenomenon rather than an objective fact that can be evaluated independently of what people actually think and do.” in goodale, 2014, p. 38. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 297 knowledge(s), subaltern legalities, counter-hegemonic narratives and alternative universes (towards the pluriverse).64 such a critical exploration would focus on alternative worldviews, those of african ips’ epistemologies, their systemic formulations of knowledge, models of societal organization, justice and value systems: a situated knowledge with “extensible” potential. those elements would inspire the decolonized hr alternative and enrich with ex-centric content the hr construct in an attempt to render epistemological justice and valuable inputs to the dominant ihrl order and hr discourse. unveiling the epistemological roots of the hr grammar turned hegemonic, the situatedness of the knowledge it encompasses, its particularism, parochialism and purposive choice as that of any given system of legal rules has been the purpose of this text. however, the enquiry can go further. the same logic of domination that besets the current hr narrative imbues the development practice and praxis65 through the centrality of rights (with its neo-liberal twist). thus, the implications of the critique applied to hr could extend to development cooperation as far as it is connected with the expansion of the mainstream hr grammar as its conceptual framework (depoliticised and ideologically neutral), in disregard of alternative basis for advancing and grounding its goals. the programs and projects of development organizations revolve around and build on hr dominant paradigm and approaches, and it has been the ngos that set themselves up to sustain hr as their main concern in response to the inaction on the side of governments. they became the preferred channel to make up for governments’ shortfalls and absences and found a moral justification to legitimize their interventions in defence of democracy66 and hr.67 moreover, the concept of development has become a cornerstone supporting the edifice of contemporary il (pahuja, 2011). therefore, a practical application of the argumentation presented here would incorporate development interventions. analysing the ‘developmentalisation of hr’68 would contribute further to this attempt to reconstruct hr through the examination of 64 “a world where many worlds fit” ideal of the zapatistas. 65 the relationship between development and assistance programs and human rights has been devised, systematized and operationalized through the so-called human rights based approach/es (hrba) to development cooperation and programming. hrba was agreed as a guiding principle by un agencies in 2003 and ever since (unsdg human rights working group, 2003). hrba is being applied by many development actors rather than traditional poverty oriented or needs-based approaches. 66 “a discourse of democracyinterpreted mostly in human rights termhas attempted to constitute itself as the ‘approved’ discourse of liberation and resistance.” rajagopal, 2004, p. 137. 67 “intervention is in practice a right appropriated by the strong. but it is a right difficult to legitimate, and is therefore always subject to political and moral challenge. the intervenors, when challenged, always resort to a moral justificationnatural law and christianity in the sixteenth century, the civilizing mission in the nineteenth century, and human rights and democracy in the late twentieth and twenty-first centuries.” wallerstein, 2006, p. 27. 68 “by grounding the planning for development in human rights, an attempt is being made now to make development into a legal project. the motive for this move to escape ideology, and ground development normatively, comes from two sources” legitimacy crisis, [a] “a belief in law as a neutral, trans-ideological, meta-cultural terrain that is beyond contestation. by grounding development in such (an international) law of human rights, the development profession is hoping that the normative basis of the discourse will decrease contestation over its interventions.” rajagopal, 2004, p. 228. transforming human rights through decolonial lens the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 298 the role of western development actors69 in legitimizing and consolidating specific justice and development discourses when implementing donor-assistance interventions. development actors are catalyst of ideas connected to epistemic communities; agents that bring about ideological impact, contribute to shaping beliefs, shift discourses legitimizing actions and policies and reinforce specific ideologies.70 the focus on development actors such as ngos would hence lie in the ascertainment of the role they play within the international scene, including their influence in political71 and domestic legal processes (as maintained by twail scholarship). while supporting beneficiaries in their struggles, development actors and assistance organizations act as vehicles of power, ideas and values, and consequently, their influence might go beyond the measurable goals aimed with the projects they implement. the proliferation of those type of organizations during the period since the adoption of the udhr onwards, is significant and revealing of the weight and influence they have attained. furthermore, including development actors in the picture would help to overcome the limitations that arise from placing the focus solely on states as players within the legal international arena and policymaking when it comes to tackling hr shortcomings. it is a matter of coherence and of epistemic justice to reveal the way that influence takes place and the scope of its effects by determining how and to what extent, the dominant hr ideology and its epistemological premises are reinforced not least by the development enterprise. elucidating these unanswered questions as a way forward will add to the quest for transforming and des-absolutizing hr and their contested universalism to make them suitable for the challenges ahead. references achpr. (1981) african charter on human and peoples’ rights achpr. american anthropological association aaa, executive board. (1947) “statement on human rights.” american anthropologist 49 (4): 539-543. doi:10.1525/aa.1947 .49.4.02a00020 anghie, a. (2006) “the evolution of international law: colonial and postcolonial realities.” third world quarterly 27 (5): 739-753. doi:10.1080/01436590600780011 bandung conference. 24 april (1955) “final communiqué of the asian-african conference.” 69 this proposal depicts western development actors as “missionaries of themis” (themis was the goddess of justice in ancient greek culture who first instructed humankind in the primal laws of justice and morality). the hypothesis being that they operate neglecting their role as agents of social transformation and of radical structural change. the civilizing mission endeavour of earlier religious missionaries is somehow continued nowadays by the work of development actors in their hr enterprise. other authors have referred to them as the “ideological foot soldiers” of civilization (shivji, 2006), “saviours” (mutua, 2001). 70 “part of our ‘unlearning’ project is to articulate that ideological formation… into the object of investigation” (italics in the original). spivak, 2001, p. 199. 71 “international law must decentre itself from the unitary conception of the political sphere on which it is based, which takes the state or the individual as the principal political actor.” rajagopal, 2004, p. 236. davinia gómez sánchez the age of human rights journal, 15 (december 2020) pp. 276-303 issn: 2340-9592 doi: 10.17561/tahrj.v15.5818 299 barreto, jm. 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(2013) “ideology and discourse.” in the oxford handbook of political ideologies, edited by freeden, m. and stears, m: oxford university press. wallerstein, i. (2006) european universalism. the rhetoric of power. new york: the new press. wilson, r. a. (2007) “tyrannosaurus lexthe anthropology of human rights and transnational law.” in the practice of human rights: tracking law between the global and the local, edited by goodale, m. and merry, s.e. received: june 24th 2020 accepted: september 1st 2020 articles davinia gómez sánchez transforming human rights through decolonial lens 1. debunking human rights universalism 1.1. introduction and preliminary clarifications 2. “the contingency of law’s grounds” 2.1. locating the making, rooting the discourse 2.2. relative universalism or “not at all” 2.3. uprooting the discourse, dislocating the making 2.4. inclusion of alter-natives through decolonial theory 3. conclusion: the significance of human rights references los límites del cosmopolitismo ético the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 184 the challenge of ethical-cultural pluralism to the universality of human rights federico arcos ramírez1 abstract: one of the main criticisms directed against the legitimacy of internationally recognized human rights is that they are ethnocentric or parochial. the examination of this objection leads to the conclusion that it is not relativism but cultural-ethical pluralism the main challenge to the universal validity of human rights. ethical pluralism queries that the justification of human rights that has prevailed since the approval of the udhr has arbitrarily given, under a deceptive appearance of universality, a weight far superior to individualistic values than to collectivistic. after examining some of the main attempts to overcome this challenge (the constructive theory of human rights and justificatory minimalism), the one based on the defense of a kind of ethical individualism compatible with a moderate ethical objectivism is defended as a preferable alternative. keywords: human rights, parochial objection, relativism, cultural ethical pluralism, individualism, ethical objectivism. summary: i. introduction: the parochial objection; ii. the ethical relativism; iii. the cultural ethical pluralism; iv. the disadvantage claim; v. an objective justification of the individualism of human rights. the constructive theory of human rights; vi. the justificatory minimalism; vii. some proposals to refute the ethnocentrism of the official justification of the current international human rights system; viii. final considerations. i. introduction: the parochial objection one of the main criticisms directed against the legitimacy of internationally recognized human rights is that they are ethnocentric. this is also known as parochial objection. according to this critique, the local is confused with the universal, the universally valuable (in this case, the human rights) is confused with what is valued from the perspective of some particular culture or society. the parochial objection is that international human rights law embodies a “parochial' set of values or ordering of the same values that it unjustifiably imposes, through its quasi-universal or universal scope, on people and societies who do not share it2. its origins go back to at least the drafting in 1947 of the universal declaration. already then the executive board of the american anthropological association warned of the danger that the declaration would be “a statement of rights conceived only in terms of the values prevalent in western europe and america. for that reason, insisted that “values and standards are relative to culture from which they derive” 1 university of almería, spain (farcos@ual.es). 2 besson, s., “the egalitarian dimension of human rights”, archiv für sozial-und rechtsphilosophie beiheft, 136, 2013, pp. 19-52, at. 36. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 185 y, henceforth, “what is held to be a human right in one society may be regarded as antisocial by another people”3. parochialism objection queries the legitimacy of human rights in two different ways which, however, are often confused: through what is known as skepticism or ethical relativism, on the one hand, and the doctrine of ethical pluralism, on the other. although the former apparently contains more subversive implications for the legitimacy of internationally recognized human rights, it does not offer the most adequate expression of the anxieties and perplexities related to parochialism. on the contrary, although it is a more modest metaethical thesis, ethical pluralism queries this universality much more seriously. both meanings of the parochial objection must be distinguished from another type of accusation of ethnocentrism to which human rights have also been subjected: that they are a western concept that is not, in many cases, transferable or translatable to other societies and cultures. according to this version, the concept of human rights could not be extrapolated from the context of the culture and history in which it was conceived into a global valid notion. proof of this are the difficulties in finding a translation of the term "right" in languages such as chinese or japanese4. however, to maintain that the concept of human rights is parochial, it is not enough just to highlight its western origins. assumed that human rights are a product of western political history and philosophy, their universality rests on the conviction that it is a language with a sufficiently generalizable literal tenor to be able to transcend its historical origin. in fact, people in whose cultures the concept of a right may not be indigenous nonetheless have found it to be extremely valuable for protecting their vital interests5. ii. the ethical relativism at the metaethical level, ethical skepticism or relativism defends the non-existence or non-cognoscibility of a set of universal values since it considers that moral truth and the justification of moral judgments are not objective, but relative to cultural and historically contingent factors. from this point of view, an objective foundation of human 3 the executive board, american anthropological association, “statement on human rights, american antropologist, 1947, 539-43, alt 542. as nickel affirms, this is not the stance of most anthropologists today. currently the american anthropological association has a committee on human rights whose objectives include promoting and protecting human rights and developing an anthropological perspective on human rights. more than emphasizing the importance of cultural differences, anthropologists now often support cultural survival and the protection of vulnerable cultures; non-discrimination, and the rights and land claims of indigenous peoples. nickel, j., "human rights", the stanford encyclopedia of philosophy (spring 2017 edition) zalta, e (ed.), url: https://plato.stanford.edu/archives/spr2017/entries/rights-human/. nonetheless, prominent anthropologists such as richard shweder and the late clifford geertz have defended relativist positions in recent years. 4 zolo, d., cosmopolis. prospect for a word government, polity press, cambridge, 1997, p. 119. inagaki, r., “some aspects of human rights in japan”, in philosophical foundations of human rights, paris, unesco, 1986, ch. 9. 5 buchanan, a., “human rights and the legitimacy of the international order”, legal theory, 14, 2008, pp. 39-70, at. 45. http://www.aaanet.org/cmtes/cfhr/index.cfm federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 186 rights cannot be sustained since the unavailability of a credible objective grounding for such standards. a very clear exponent of this position are the following words of zolo: “the universal character of human rights is a rationalistic postulate not only without substantiation in the theoretical sphere but also historically contested by cultures different from western culture. (…) [t]he risk is thus very great that the cosmopolitan project implicit in the western doctrine and policy of human rights is in actual fact operating as – and is perceived as – an aspect of that process of the “westernization of the world” which is currently overrunning the technologically and economically weaker cultures, depriving them of their identity and dignity”. zolo does not merely highlight the incompatibility between the values embedded in human rights and the dominant ethos in countries like china, pakistan and saudi arabia, the sudan or nigeria. in his critique of universalism and deontologism characteristic of ethical pacifism, the author of cosmopolis shows his closeness to the realist and subjectivist philosophies of values, that is to say by the entire tradition of ethical non-cognitivism, from hume to nietzsche, to weber, to neurath, to rené girard, to rorty6. although conceptually different, metaethical relativism is often associated with normative relativism7, with the belief that moral values and judgements are endogenous and immeasurable, and thus have no meaning and validity beyond the social or cultural context in which they originated. according to this vision, each form of life, each "language game" constitutes its own world (wittgenstein), with its own particular rationality, so there are no objective and universal criteria to judge it and, even if these existed, we would be too conditioned by our own culture and society to be able to discover them. it is therefore wrong to judge other people who have substantially different values because they are as valid as ours8. if cultures are insurmountable frameworks of understanding and research and assessments and comparisons between them are not possible, human rights are no more than a western concept that cannot be transculturally applied to judge other forms of life and other conceptions of good and justice. what, in the light of western values, may seem incorrect, incomprehensible and even reprehensible, may, on the contrary, be perfectly correct and acceptable according to different local or domestic morals9. ethical-cultural relativism offers, in the opinion of its defenders, a double attraction. on the one hand, it appears as the most egalitarian, democratic, pluralist and tolerant 6 zolo, d., cosmopolis, p. 59. 7 in addition to the metaethical and normative, another level of ethical relativism is the descriptive, that is, with the coexistence of a plurality of value systems and conceptions of good by virtue of different cultural, political, religious or social traditions. on these three levels, see frankena, w.f., ethics, prentice-hall, new jersey, 1973, p. 109; corradeti, c., relativism and human rights. a theory of pluralistic universalism, springer, 2009, p. 36. 8 wong, d, “relativism” in singer, p (ed), a companion to ethics, wiley-blackwell, 1993, pp. 442-443. 9 krauz, m., “varieties of relativism and the reach of reasons,” in hales, s.d., (ed.), a companion to relativism, malden, ma: wiley-blackwell, 2011, pp. 70-84, at. 71. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 187 position, since it denies the hierarchy of values and considers the inferiority and superiority of peoples as an ethnic and racist prejudice10. on the other hand, it appears to be the most respectful position to the principle that everyone is equally entitled to respect, as it ensures that to respect a person entails respect for that person's culture, because culture constitutes, at least in part, a person's identity11. i share the view of buchahan and tasioulas that cultural ethical relativism does not constitute a worrying challenge to the legitimacy and/or universality of human rights. as the second points out, “the idea that skepticism about the objectivity of ethics is a highly controversial in metaethics and not a platitude12.without attempting to be exhaustive, we can begin the summary of the inconsistencies and logical fallacies on which ethical-cultural relativism rests by pointing out that, in addition to incurring in the naturalist fallacy, by simply inferring from the fact that there exists a diversity of cultures the duty to respect them13, suffers from a serious logical inconsistency. on the one hand, it rejects the existence of objective and independent values of different cultures and traditions that would allow them to be judged, but, at the same time, it is presented as a philosophy that promotes a single principle that would be objective and transcultural: that of tolerance of all cultures and moral codes. at the level of normative ethics and at the level of metaethics, the moral relativist cannot defend tolerance, but must abstain from making moral judgments or, in any case, his defense of tolerance must also be relative.14. the relativist, as such, cannot say anything for or against tolerance from a moral point of view since, from the moment he did so, he would cease to be an observer of morality and would become a defender of it. therefore, the value of tolerance does not derive from relativism, but is a universal moral imperative that must, as such, satisfy criteria of universality and impartiality15. in addition to the logical fragility of its philosophical premises, ethical-cultural relativism is queried for hypostasis on the role of social and cultural determinants and confusing, in a reductionist manner, personal and social identity; for exaggerating the homogeneity and autonomy of culture and society; and, above all, for its tendency to identify the integrity of a culture with its oldest and most resistant elements to change16. for anti-relativists, neither individuals are passive objects lacking in moral and intellec 10 sebreli, j.j, el asedio a la modernidad. crítica del relativismo cultural, ariel, barcelona, 1992, p. 66. 11 freeman, m., “universalism of human rights and cultural relativism” in sheeran, s & rodley, n. (eds), routledge handbook of international human rights law, 2014, routledge, oxford, 2013, pp. 4961, at. p. 51. 12 tasioulas, j., “parochialism and the legitimacy of international law” in sellers (ed), parochialism, cosmopolitanism, and the foundations of international law, cambridge university press, 2012, p. 27. 13 renteln, a., “relativism and the search for human rights”, american anthropologist, 90, 1988, pp. 56-72, at. pp. 61-62; tesón, f., “international human rights and cultural relativism”, virginia journal of international law, 1985, 25, 4, pp. 869898, at. pp. 888-889. 14 lukes, s., moral relativism, profile books, london, 2008, pp. 36-37. 15 garzón valdés, e., «cinco confusiones acerca de la relevancia moral de la diversidad cultural», in derecho, ética y política, centro de estudios constitucionales, madrid, 1993, p. 201. 16 vid. nussbaum, m., women and human development: the capabilities approach, cambridge university press, 2000, pp. 49 ff. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 188 tual resources different from those provided by their own culture or society, and consequently incapable of adopting a critical and independent point of view with respect to dominant beliefs, nor do cultures possess such absolute integrity as relativists attribute to them17. iii. the cultural ethical pluralism the dichotomy between universalism based on naturalistic ethical objectivism and relativism who holds that "anything goes" is, in the opinion of a significant group of thinkers, too radical. for this reason, they opt for an alternative that can be considered an intermediate position: ethical pluralism. this should not be understood in a merely descriptive sense, as the fact, without further, that different cultures accept different moralities or moral principles, but, as buchanan points out, as, it holds that there is a plurality of objective, or at least not unreasonable values, and that there is not a uniquely valid comprehensive ranking or weighing of them. it is therefore not a descriptive but a normative point of view. now, what is to be understood by a valid morality? as noted above, ethical pluralism is a more modest thesis than metaethical relativism. the concept of valid morality admits a strong interpretation, compatible with the possibility that objective moral truths exist, as other weaker ones, compatible with a non-objectivist vision of ethics. according to this last vision, that a morality is valid only means that it performs, in a credible and persuasive way, the characteristic functions of a morality: providing social cohesion, facilitating productive cooperation, contributing to the relatively peaceful resolution of commonly occurring conflicts and providing useful guidance in the pursuit of good life18. these are, however, necessary but not sufficient conditions for the validity of a morality. it is also necessary that these are not un simply set of rules enforced by coercion, without internalization and that it does not rely importantly on easily falsified factual beliefs or on patent gross inferential errors. according to this last normative or epistemic requirement, a morality is valid only if it includes some notion of impartiality or universality of moral reason or is consistent with some version of the idea that all human beings have moral standing (though perhaps not equal moral standing)19. buchanan, as wong had previously held20, establishes a great division between, on the one hand, valid collectivistic moralities and, on the other, individualistic moralities. it is not, however, a question of pure models in the form of all or nothing, but that moralities can be ranged from more individualistic to more collectivistic21. surely the most plausible understanding of ethical pluralism is that which considers not only that there exists a plurality of valid morality, but also that such a set of moralities “will include both 17 parekh, b., «non-ethnocentric universalism» in dunne, t. and wheeler, n. (eds), human rights in global politics, cambridge university press, 1999, pp. 133-135. 18 buchanan, a., “the challenge of ethical pluralism”, cit., p. 258. 19 ibid, pp. 251-252. 20 he distinguishes two different approaches to morality: a virtue-centered morality that emphasizes the good of the community, and a rights-centered morality that stresses the value of individual freedom. vid. wong, d., moral relativity, university of california press, 1984, p. 160-176. 21 buchanan, a., “the challenge of ethical pluralism”, cit., p. 254. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 189 collectivistic and individualistic moralities and will not include either purely individualistic or purely collective moralities”22. but in what way, in what sense, does it call into question the ethical pluralism, thus understood, the legitimacy or universality of human rights? rather than the assertion that there is a conceptual incompatibility between the principles of valid collectivist morality and the existence of an international human rights regime (inconsistency claim), in my view, what this meaning of parochial objection holds is that international human rights do not embody the values of all existing valid ethical conceptions. the formulation of these would have ignored or insufficiently considered those of some of them and given a privileged place to that of others, in particular western values (disadvantage claim). i believe that this last thesis is the one that best reflects the reasons why ethical pluralism represents a challenge of considerable magnitude to the legitimacy of the current international human rights system23. iv. the disadvantage claim despite the efforts of the united nations human rights commission set out to draft the udhr to incorporate the values and world views of all cultures and civilizations of the planet, the preambles of the 1948 declaration and the 1966 covenants seem to conceive human rights as an attempt to realize certain moral rights based on the moral equality or dignity of persons24. both in the opening passage and in the preamble and the first articles, the declaration appeals to the dignity and worth of persons as beings endowed with conscience and reason25. the declaration therefore uses rhetoric that, at least apparently, is too individualistic and inconsistent with collectivist moralities. hence, simultaneously with the drafting and adoption of the universal declaration, the predominantly western and liberal bias prevailing behind the formally universal language of the text adopted in 1948 began to be denounced. if at first these criticisms were aimed at postponing economic, social and cultural rights in favor of civil and political, almost simultaneously also began to develop a discourse centered on ignorance of 22 ibid, p. 257. 23 in fact, in a previous paper, buchanan defines parochial objection as a disadvantage claim rather than an inconsistency claim. there he will say that, according to the parochialism objection, “what are called human rights are not really universal in the sense of being rights of all individuals but instead merely reflect (1) an arbitrarily restricted set of moral values; or (2) an arbitrary ranking of certain moral values. according to this objection, both sorts of arbitrariness are due to cultural bias: supposedly universal values (or rankings of values) are merely the expression of a mistake—the mistake of thinking that what happens to be valued from the perspective of some particular culture or type of society is universally valuable”. buchanan, a., “human rights and the legitimacy of the international order”, cit., p. 40. 24 buchahan, “human rights”, in estlund, d. (ed), the oxford handbook of political philosophy, oxford university press, oxford, 2012, pp. 279-97. 25 one of his best-known philosophical self-understandings of this view would be the human rights rationale developed by griffin. he construes human rights as grounded in a restricted subset of universal human interests, which he calls the goods of personhood or normative agency: autonomy (our being able to form our own conception of a worthwhile life), liberty (being free for external interference to pursue one´s choices) and the minimum material provision necessary for meaningful autonomy and liberty. griffin, j., on human rights, oxford university press, oxford, 2008, pp. 66 ff. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 190 religious, historical and cultural peculiarities that would implicitly carry the abstract, anthropocentric and secular universalism of the declaration and the covenants. this spirit of denying, or at least correcting, the eurocentrism dominant in the international human rights regime has been evident both in the drafting of some regional human rights texts (such as the arab charter on human rights of 1994 and the banjul charter of 1981) and in the inexistence so far of such a document in asian countries. without questioning the universal validity of human rights, they point out, however, on the one hand, the need to take seriously the idea that the concept of human rights is a product of historical development, closely associated with specific social, political and economic conditions and the specific history, culture and values of a country. on the other hand, many east and southeast asians also express their rejection of the extreme form of individualism practiced in the west. they agree that every individual is important. however, he or she is not an isolated being, but a member of a nuclear and extended family, clan, neighborhood, community, nation, and state. so, they tend to look askance at the starkly individualistic ethos of the west in which authority tends to be seen oppressive and rights are an individual's "trump" over the state. most people of the region prefer a situation in which distinctions between the individual, society, and state are less clear-cut, or at least less adversarial26. the abundant bibliography on the present difficulties in making human rights compatible with african, confucian and islamic religious and cultural values offers a very complete picture of some of the main differences between collectivist (at least preferably) and individualistic morals, as well as the difficulties in harmonizing them27: 1) in the former, the weight of social circles (family, clan, guild, etc.) is greater than that of the individual who is defined precisely by his belonging to them. therefore, there is no sacralization of the individual in front of the community, nor is there an excessive obsession for his dignity and value28. according to this vision, the concept of human rights would protect a western and liberal conception of human dignity, namely: that the person has an absolute and irreducible equality that must be defended from society and the state, and that the autonomy of the individual requires that society is not organized in a hierarchical way but as a sum of free individuals.29. 2) the duties of the individual towards the community of which he is a part are the origin of rights. therefore, the link to duty prevails over the vindication of rights. in all these traditions the predominant image of the human being is not, therefore, that of an autonomous individual who affirms and needs to defend himself -bearing rightsagainst 26 koh, t., “the 10 values that undergird east asian strength and success”, international herald tribune, 1993. kausikan, b., “asia's different standard”, foreign policy, 1993, 92, pp. 24-41. 27 brems, e., human rights: universality and diversity, martinus nijhoff, the hague, 2001; peerenbom, r.p., “what´s wrong with chinese rights? towards a theory of rights with chinese characteristics”, harvard human rights journal, vol. 6, 1993, pp. 293-321; ouguergouz, f., the african charter of human and people´s rights. a comprehensive agenda for human dignity and sustainable democracy in africa, martinus nijhoff publishers, the hague, 2003, pp. 377-421. pannikar, r., is the notion of human rights a western concept? diogenes, 1982, 30 (120):75-102. 28 donelly, j., “human rights and human dignity”, the political science review, 76, 1982, p. 311. 29 sousa santos, b., “towards a multicultural conception of human rights” in hernandez truyol, b, moral imperialism: a critical anthology, new york, 2002, pp.44-45. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 191 power and other men but, on the contrary, that of a subject whose identity is defined by belonging to the community and the duties he has towards it. 3) against the liberal-formalist view of law and the market as the main factors of social control or integration, especially to resolve or mediate conflicts between individuals, these cultures insist on mutual agreement, social harmony through recourse to tradition, ethos, education and solidarity as forms of social integration. from the perspective of some of the main valid collectivist morals, human rights would be individualistic because they encourage an atomistic view of human relations and social order. as its communitarian critics also point out, liberalism would not have been limited to considering individual rights as the foundation of the social order and as the foundational category of power and law. it would also have ended up inextricably linked the defense of human rights to the exaltation of the capacity to act as one wishes, to the intrinsic value of affirmation of itself choice30, and promoting an understanding of society as a mere conglomerate of individuals whose objective is solely the satisfaction of private interests through relationships considered instrumental and insensitive to the needs of society as a whole31. it would be this individualistic ethos of human rights that cannot be accepted as universal or universalizable by all cultures. v. an objective justification of the individualism of human rights. the constructive theory of human rights some theorists have tried to refute the parochial objection by pointing out that individualism, which, as we have just seen, is excessive for collectivistic moralities, is not the result of an arbitrary selection or ranking of moral values, but the inevitable result of certain objective conditions. as can be seen, this perspective delves into the fundamentally economic and social causes that would explain why human rights arose only at a certain moment in western history and not before, nor in other cultures and civilizations. if it were possible to isolate these factors or presuppositions and enunciate a kind of law from the history of human rights, the fate of the universalization of human rights would move away from cultural imperialism and towards an apparently more objective and neutral factor: the extension of these historical presuppositions to the different societies of the world, the development of social and economic transformations similar to those that caused the flourishing of the idea of human rights in europe. these would come to argue that: a) it seems demonstrated that there are essential historical presuppositions, a kind of laws of the history of human rights by which these only arise and can arise in individualistic, capitalist societies, with separation between political and religious power, etc.32. 30 all options are equally worthy, because they are freely chosen, and it is choice that confers worth. taylor, c., the ethics of authenticity, harvard university press, cambridge, massachusetts, 1991, p. 37. 31 macintyre, a., after virtue. a study in moral theory, university of notre dame press, 2007, p. 25. taylor, «atomism» in philosophy and the human sciences, philosophical papers 2, cambridge university press, 1985, pp. 187-210. 32 vid. fernández garcía, e., “acerca de si la historia de los derechos humanos tiene algo que decir sobre el individualismo moral y los derechos colectivos”, derecho y libertades, 12, 2003, p. 210. vid. also federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 192 the doctrine of natural rights therefore presupposes an individualistic conception of society and the state33. b) individualism, thus understood, is necessary in modern societies which, while destroying traditional forms of identity and community protection, generate powers from which it is necessary to defend oneself not as members of groups but as individuals. c) modernization is an unstoppable process from which no society can escape. d) therefore, human rights will end up being "necessary" in all societies. combining pragmatic and historical approaches to human rights, it can be seen that these appear as historical responses to problems of coexistence and protection needs, specifically, as a solution to the dangers and threats to individual dignity arising from the transition from a model of community or holistic society to another individualistic one that modernization brought with it. human rights ideas and practices arose not from any deep western cultural roots but from the social, economic, and political transformations of modernity34. as donnelly points out, in the gemeinschaft, that is, in small communities based on family clans, the individual does not need many or almost all the rights so valued in democratic states. he suffers from this need because he has a safe and meaningful place in his society and has a wide range of intense personal and social relationships that provide him with important material and moral support. hence, introducing the idea of the rights of the individual into such contexts would end up diminishing their prospects of achieving a life worthy of a human being. the social, economic and political transformations of modernity "have created a largely isolated individual who is forced to go it alone against social, economic, and political forces that far too often appear to be aggressive and oppressive. society, which once protected his dignity and provided him with an important place in the world, now appears, in the form of the modern state, the modern economy, and the modern city, as an alien power that assaults his dignity and that of his family"35. according to all this, human rights are not natural, they are not -to paraphrase rortysomething that in itself, regardless of human interests and needs, but a construction, the "artefact" designed by western ethical and political engineering with a view to protecting human dignity after the loss of the traditional sources of certainty and protection that modernization, economic and technological development, has brought with it36. one of the clearest exponents of this way of understanding the origin and universality of human rights is habermas. for this one: peces-barba, g, et alii, curso de derechos fundamentales, teoría general, universidad carlos iii de madrid-boletín oficial del estado, madrid, 1995, pp. 116 y 132. 33 bobbio, the age of rights, polity press, cambridge, 1996, part. i, chap. 3. 34 donelly, j, “the relative universality of human rights”, human rights quarterly, 29 (2), pp. 281306, at. p. 287. 35 donelly, j., “human rights and human dignity”, cit., pp. 311-312. 36 ulrich refers to this vision as a "constructive theory of human rights", since he considers that human rights “are to be grounded neither in metaphysical principles nor in the traditional cultural values but rather in history. in essence, human rights are not timeless principles but a construct that respond to the exigencies of a particular type of social formation emerging in the world stage during a particular historical epoch”. ulrich, g., “universal human rights: an unfinished project” in hastrup, k. (ed), human rights on common grounds: the quest for universality, kluwer law international, the hague, 2001, p. 214. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 193 “standards of human rights stem less from the particular cultural background of western civilization than from the attempt to answer specific challenges posed by a social modernity that has in the meantime covered the globe. however, we evaluate this modern starting point, human rights confront us today with fact that leaves us no choice and thus neither requires, nor is capable of, a retrospective justification. the contest over the adequate interpretation of human rights concerns not the desirability of the “modern condition,” but rather an interpretation of human rights that does justice to the modern world from the viewpoint of other cultures as well as our own. the controversy turns above all on the individualism and secular character of human rights that are centered in the concept of autonomy”37. on the one hand, commercial traffic requires freedoms to be able to make decisions, and, as weber has already shown, of protected responsibility and confidentiality and legal certainty. on the other hand, in complex societies arising from modernization, individuals need an abstract form of civil solidarity and a rational legal system and protected subjective rights to “can rely on the fairness of dealings with strangers under conditions of anonymity”38. for all these reasons, it is impossible to embark on capitalist modernization without making use of the advantages provided by an individualistic legal order. one cannot wish to have one thing and not the other39. for these authors, the same or very similar problems and threats that modernization entails (in respect of which human rights have proven to be a very effective invention) are already emerging and will do so even more in the rest of the planet. from this point of view, human rights will end up becoming valuable and valued, sooner or later, in any society or culture because the flourishing of an industrialized market economy and a bureaucratically organized state is an irreversible process, it is like a wave that engulfs traditional cultures one after the other40. with the traditional mechanisms of self-control eroded as a result of bureaucracy, social mobility, urbanization, industrialization and social differentiation, and making other mechanisms necessary, the only alternative that so far seems to have worked reasonably well in most societies is human rights. and the fact is that, as mccarthy questions himself, if we assume that one of the inevitable features of globalized modernization is convergence towards similar economic, political and legal institutions to a certain degree, what kinds and degrees of divergence are still possible and desirable? specifically, how much space do these modernizing 37 habermas, j., “remarks on legitimation through human rights”, in the postnational constellation, political essays, the mit press, cambridge-massachusetts, 2001, p. 121. 38 raz, j., «the politics of the rule of law» in ethics in the public domain: essays on morality of the law and politics, clarendon press, oxford, 1995, p. 372. 39 habermas, j., “remarks on legitimation through human rights”, cit., p. 124. frank expresses himself in very similar terms: “there is no reason to believe that these underlying emancipating forces-urbanization; industrialization; advances in communications; scientific discoveries; a revolution in information storage, distribution and retrievalare indigenous to western society and cannot affect other societies as they have affected our own. on the contrary, one must assume them to be independent variables, which, when they come to the fore anywhere under the right conjunction of circumstances, can tilt the balance in favor of more personal autonomy. frank, t., is personal freedom a western value? the american journal of international law, 91, 4, 1997, p. 608. 40 taylor, c., «nationalism and modernity», in hall, j (ed.), the state of the nation: ernest gellner and the theory of nationalism, 1988, pp. 191-218, at. 205. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 194 tendencies leave for deep cultural differences?41 phenomena such as the decline of the agricultural way of life, professional differentiation and specialization, diversity of lifestyles, perspectives and attitudes, pluralism of belief systems, value commitments, forms of individual or community identity, challenges to patriarchal, racist or ethnocentric stereotypes, etc. seem sufficient to suggest that deep diverges do not seem possible.42. now, can we find, in all assumptions, this sequence of modernization-individualismhuman rights? the empirical premises of constructive theory are very controversial. on the one hand, they rest on the marxist simplification according to which value commitments are merely by-products of underliying socioeconomic forces. as taylor has pointed out, the pointed constructivists start from a materialistic or "acultural" explanation of the social and political transformations triggered by modernization. the development of science, negative freedoms, individualism, etc. would appear, from this perspective, as the inseparable result of certain social changes derived from industrialization, the increase of mobility or urbanization, never as the result of the spiritual vision proper to the west, of the option for a certain system of values or vision of the human and the good.43. taylor does not deny that there are important causal relationships between the former and the latter, but he does deny that these transformations can be explained as inevitable causal processes that form a whole (the enlightment package) that every modernizing society will probably end up experiencing. western modernity is, in part, the product of an original moral and cultural perspective44. on the other hand, the trinomial modernization-individualism-human rights is called into question by the possibility of "alternative modernities". taylor considers feasible modernities that avoid some of the features of the western societies already pointed out and that have been so criticized, on the other hand, from the ranks of communitarianism: the atomist-individualist image of identity, the contractualist and instrumental conception of the community, radical secularism etc.45. on the other hand, it is not true that the result of the destruction of traditional identities and community ties is, in all cases, the emergence of social and political systems based on personal freedom and human rights and not also cultural and value differentiation46, or iliberal backlashes in the form authoritarian government and religious fundamentalism47. an obvious example of this is the way in which, following decolonization, arab societies have endeavored 41 mccarthy, t., “on reconciling cosmopolitan unity and national diversity”, public culture, 1999, 11(1): 175–208, at. 206. 42 ibid, p. 207. 43 hunt's vision of the origin of human rights would confirm taylor's critique. for her, “to have human rights, people had to be perceived as separate individuals who were capable of exercising independent moral judgment (…) but for these autonomous individuals to become members of a political community based on those independent moral judgments, they had to be able to empathize with others. everyone would have rights only if everyone could be seen as in some fundamental way alike. equality was not just an abstract concept or a political slogan. it had to be internalized in some fashion”. hunt, l., inventing human rights. a story, ww norton & co, n. york, 2007, pp. 27. 44 taylor, c., “two theories of modernity”, the international scope, vol. 3, issue 5, summer, 2001, pp. 6-8. 45 ibídem, p. 9. 46 in this sense huntington, s., the clash of civilizations and the remaking of the world order, 1997, simon & schuster, n. york, chapter 3. 47 tasioulas, j., “parochialism and the legitimacy of international law”, european journal of international law, 2002, 13, 4, pp. 99-1023, at. p. 28. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 195 to build modern states, enjoy the advantages of material and technological development and emulate western levels of welfare and consumption while rejecting democracy and human rights as alien to their cultural and religious identity. the case of china and the rest of the asian tigers is undoubtedly more ambiguous. the dominant impression a few years ago that china appeared to be following a predictable path towards a liberal political order, seemingly having opted for a familiar path of transition towards a political-legal system modelled on the liberal constitutionalism that is required for a better protection of human rights, has not been fulfilled48. however, even if the empirical thesis on which constructive theory rests were true, it would be no more than an explanation of the origin of human rights, not a justification for them. as tasioulas points out, even if a commitment to the values of personal freedom and self-determination is caused by vast, impersonal historical forces to which we are inescapably subject, the question remains whether these values are acceptable to us. the argument is not acceptable because is conclusion shows only that history is "on the side" of the human rights. hence, it is precisely the absence of the above reasons that animates skepticism about human rights49. vi. the justificatory minimalism a very different way to overcome the challenge that ethical pluralism represents for the universality of human rights is ethical minimalism. it has been followed by some theories of international justice illuminated in the last decades that have tried to find an inter-section point between the universal and the irreducible ethical-cultural diversity, between the extremes of naïve cosmopolitanism and the relativistic exaltation of difference. this minimalism adopts, in some suppositions, in substantive terms, the defense that the list of internationally recognized and protected human rights must be "reasonably short and reasonably abstract". it would be the minimalist path proposed by lukes, vincent, walzer or wiggins50. however, the best-known expression of substantive minimalism continues to constitute the point adopted by rawls in the law of peoples. rawls links the overcoming of the parochial objection to the development of an idea of tolerance, understood not in a negative sense (such as abstaining from military, diplomatic or economic sanctions against those whom we understand must change their ways of life) but as the recognition that these non-liberal societies are equal members of the community of peoples51. one of the keys to such tolerance would be that non-liberal decent societies also respect human rights, although not all those that derive from the two principles of justice as equity, but those that do so from the most abstract and restricted version of those principles that express 48 pils, e., human rights in china: a social practice in the shadow of authoritarianism, cambridge, polity press, 2018. 49 tasioulas, j., “international law and the limits of fairness”, p. 1003; tasioulas, j., “parochialism and the legitimacy of international law”, cit., p. 29. 50 lukes, s., «five fables about human rights” in s. shute and s. hurley (eds), human rights. the oxford amnesty lectures, basic books, n. york, 1993, p. 38; vincent, r.j., human rights and international relations, cambridge university press, cambridge, 1986, p. 125; walzer, m., thick and thin moral argument at home and abroad, university of notre dame press, 2006, ch. 1. wiggins, d., ethics: twelve lectures on the philosophy of morality, penguin books, london, 2006, pp. 355-356. 51 rawls, j., the law of peoples with “the idea of public reason revisited”, harvard university press, massachusetts, 1999, pp. 65 y 79. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 196 the right of peoples integrated by the minimum and urgent rights: the right to means of subsistence and security (rights to life), to freedom from slavery, servitude and armed occupation, to personal property and to formal equality expressed in rules of natural justice52. thus, for example, hierarchical societies (confessional states) are not required to recognize a complete freedom of conscience but to admit a certain amount, even if such freedom is not, as in liberal regimes, the same for all members of society53. the advantage of these minimum human rights is that they cannot be rejected as peculiar to western culture, since they do not necessarily have to be derived from the liberal idea that considers people as free and equal individuals and citizens and treats them independently of culture and society. they can also be understood as the result of the requirements of justice based on the common good and the good faith of officials in explaining and justifying the legal system that any society has to satisfy. in a society that is not based on the western individualistic political tradition, that does not regard citizens as rights-holders as individuals but rather as duties as members of a community, human rights could be seen as rights that enable people to perform their duties in the groups to which they belong (guilds, corporations, etc.). in this sense they are politically neutral54. the attraction of this restricted core of human rights lies in the realism of its neutrality with respect to the main political, economic and cultural divisions existing in the world, as well as in its claim, as vincent points out, "to put only a floor under the societies of the world and not a sky above them"55. as can be seen, substantive minimalism aspires to present a conception of human rights that does not connect them with any particular ethical or religious conception, with a view to ensuring that they enjoy the broadest support at the global level56. not in vain, one of the most recurrent explanations for the consensus on internationally recognized human rights that has dominated since the adoption of the udhr and the 1966 covenants is that they have managed to play the role for which they were created and have been playing in the international community by not asking too many questions about their foundation or justification. as early as 1947, the catholic philosopher jacques maritain, one of the most prominent scholars of the unesco committee on the philosophic principles of the rights of man, expressed this kind of mentality in the following terms: “i am quite certain that my way of justifying belief in the rights of man and the ideal of liberty, equality, fraternity is the only way with a firm foundation in truth. this does not prevent me from being in agreement on these practical convictions with people who are certain that their way of justifying them, entirely different from mine or opposed to mine ... is equally the only way founded upon truth”. 52 ibid, p. 79. 53 rawls, j., “the law of peoples” in s. shute and s. hurley, human rights. the oxford amnesty lectures, basic books, new york, 1993, pp, 39-82, at. p. 65. 54 ibid, p. 69. 55 vincent, r.j., human rights and international relations, cit., p. 126. 56 cohen, j., “minimalism about human rights: the most we can hope?”, the journal of political philosophy, 12, 2004, p. 192. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 197 the truth is that, while the idea or concept of human rights cannot be explained without the role of philosophers, that eighteenth-century declarations are born as philosophical theories, in particular from the work of locke and rousseau57, international human rights are not the work of philosophers, but of politicians and citizens, and philosophers have only begun to try to build conceptual justifications for them. hence “the international expressions of rights themselves claim no justification, nor do they reflect any clear philosophical assumptions; they articulate no particular moral principles or any single, comprehensive theory of the relation of the individual to the society”58. assuming this perspective, taylor has argued that a genuine unforced international consensus on human rights should be achieved -using the well-known expression of rawlsthrough an overlapping consensus, in which “we would agree on the norms, while disagreeing on why they are right norms”59. justificatory minimalism, conceived as an escape from the justification of human rights in order to account for their de facto universality in international practice, would also be one of the main features of the so-called political conception of human rights defended by beitz. he insists on the thesis that, in order to understand the role that human rights play in the practice, it is necessary to distinguish between the problem of describing human them from the problems of determining what they may justifiably require and identifying the reasons we might have for acting on them. hence, according to him: “human rights need not be interpreted as deriving their authority from a single, more basic value or interest such as those of human dignity, personhood, or membership ... human rights protect a plurality of interests and require different kinds and degrees of commitment of different agents. these rights have a distinctive identity as normative standards, but this identity is not to be found in their grounds or their requirements for action. we find it, instead, in their special role as norms of global political life”60. despite the undoubted attractions of substantive and justificatory minimalism (neutrality, tolerance, etc.), this is a way of overcoming the challenge that ethical pluralism represents for internationally recognized human rights that is still unsatisfactory. on the one hand, rawls offers an overly modest view of the role of human rights at the international level and a notion of "decent" non-liberal hierarchical societies that shelter norms and practices that are clearly incompatible with systematic discrimination based on gender, confession or race. on the other hand, faced with the adoption of a merely functionalist approach to human rights such as that initiated by the author of the law of peoples and perfected by beitz, it seems difficult to question that human rights have, in addition to an essential practical and institutional dimension, an unquestionable ethical dimension. it does not seem possible to argue with regard to human rights that its norms seek to protect important human interests against threats of state sponsored neglect or oppression61, without an unequivocal affirmation of the intrinsic moral value of the individual on their own account. a purely conventionalist or positivist reading of the udhr is 57 bobbio, the age of rights, cit., chap.v. 58 henkin, l. the age of rights, columbia university press, 1990, p. 6. 59 taylor, c. “a world consensus on human rights?”, dissent, summer, 19996, p. 15. 60 beitz, c., the idea of human rights, oxford university press, 2009, p. 11, 128. 61 ibid, p. 11. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 198 therefore not possible62. moreover, the humanist considerations that beitz considers unnecessary to account for the content of human rights in international practice are present in that practice. as gilabert has drawn attention to, humanist considerations can help shape the procedure and substance of global public reasoning with respect to the meaning, content and justification of human rights63. certainly, the objective of the participants in the world forums where this takes place is not to look for the ultimate foundations of human rights, but to achieve a consensus that provides shared motives for international political action. this is why it is important to avoid the foundationalist background of the more traditional naturalist conceptions and why the political approach is right in recommending suspending or postponing the dissent on the ultimate philosophical foundations. but it must also be avoided that global public reasoning simply consists of informing the intersection of existing normative beliefs. the aim is not only to seek consensus, but to build it on methods and assumptions that are normatively sound64. vii. some proposals to refute the ethnocentrism of the official justification of the current international human rights system the accusation that the official discourse on human rights gives arbitrary weight to individualistic moralities as opposed to collectivist moralities constitutes a challenge to the universality of human rights that must be faced trying not to incur in what, in my opinion, are the major defects of both justificatory minimalism and, above all, constructive vision. on the one hand, the identification of ethical objectivism with a universalism of an essentialist or naturalist nature. on the other hand (although it may be a dimension of human rights originating in a western vision of the relations between people and the community), its tepidness in offering not only causal explanations but justifiable reasons for any reasonable person to accept as reasonable the (well understood) individualism of human rights. in my opinion, it is possible to put forward reasons for defending as correct the assertion that human rights are justifiable as protections of the interest of individuals as such, as human beings, in having access to a minimally decent life65. this would therefore not be a selfish 62 buchahan, a., “human rights”, cit., p. 283; glendon, m., a world made new: eleanor roosevelt and the universal declaration of human rights, random house, nueva york, 2011. 63 although they do not exhaust it, human rights may be regarded as part of global justice and even a central part. in this sense griffith, on human rights, cit., p. 65. besson, s. “the bearers of human rights’ duties and responsibilities for human rights: a quiet (r)evolution?”, social philosophy & policy, 2015, 32 (1), p. 246, iglesias vila, m., “¿los derechos humanos como derechos especiales? algunas ventajas de una concepción cooperativa de los derechos humanos”, anuario de filosofía del derecho, xxxii, 2016, p. 132, nota 43; according to gilabert, “human rights are becoming the currency of debates about global justice, or at least of its most urgent demands”. gilabert, p., human dignity and human rights, oxford university press, 2019, p. 43. 64 gilabert, p., “humanist and political perspectives on human rights”, political theory, 39 (4), 2011, pp. 439-467, at. p. 450. 65 as affirms nickel, “human rights do not promise the good life and the great society; the vision is rather of a decent life for all and of societies than can at least be describes as civilized”. nickel, making sense of human rights, wiley-blackwell, second ed., massachusetts, 2007, p. 51. in the same sense miller, d., 2014: «personhood versus human needs as grounds for human rights», in crisp, r. (ed), griffin on human rights, oxford: oxford university press, 2014, pp. 161. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 199 individualism, but an egalitarian and libertarian, since to defend human rights is to protect individuals from utilitarian sacrifices, communitarian impositions, and from injury, degradation, and arbitrariness66. hence, when there is a conflict between people's interests in accessing an adequate or decent range of life choices and certain collectivist values, the former must be put before the latter. this would be precisely the ultimate or most profound meaning of human rights. as ignatieff writes, “individuals and groups will always be in conflict, and rights exist to protect individuals. rights language cannot be parsed or translated into a nonindividualistic, communitarian framework; it presumes moral individualism and is nonsensical outside that assumption”67. thus, for example, the imposition against the will of a girl or woman of the person to be married, even if it is a practice justifiable according to certain collectivist morals, exceeds the threshold of decency compatible with any valid justification of human rights68. thus, i do not believe that in order to refute the parochial objection it is necessary to renounce the defense of a certain ethical objectivism. when i speak of ethical objectivism, i am referring to the possibility of giving reasons in favor of individuals deserving the kind of protection against the group noted above that any reasonable person would have to accept. this does not mean that the moral judgment on which this statement is based is infallible, absolute, or inviolable, but simply that their consistent application to everyone is supported by considerations that anyone should accept, were he to view the problem from what is contended to be the appropriate moral perspective, that is, the moral perspective which is "valid for anyone"69. it would be, then, a position far removed from ethical universalism and which coincides with what fiskin calls a minimum objectivism, which is a falibalist position, which accepts that moral rules have exceptions, but which, just as factual statements have at least a claim to truth, considers that ethical judgments have a claim to correction70. the defense of this type of individualism in the justification of human rights is not an obstacle to the recognition of the latter, and in some cases, has been linked to other forms of individualism that are much less acceptable. its association with the concept and justification of human rights would explain the misgivings that, as we saw in section four, range from asian 66 lukes, s, “five fables about human rights” in s. shute and s. hurley, human rights. the oxford amnesty lectures, basic books, n. york, 1993, p. 30. 67 ignatieff, m., human rights as politics and idolatry, princeton university press, 2001, p. 67. nino had already expressed a very similar position in his defense of a foundation of human rights based on the principle of inviolability: "whatever that scope, once rights are recognized following the principle of inviolability of persons, we are logically committed to recognize that there is a certain sphere of interest of the individual that we cannot invade for the sake of the common good". nino, c.s., ética y derechos humanos: un ensayo de fundamentación, ariel, barcelona, 1989, p. 262. in addition, the notion of moral status as a foundation of human rights defended by nagel carries with it a very close notion of inviolability. nagel, t., “personal rights and public sphere”; philosophy & public affairs, 24, 1995, pp. 84-107, at. pp. 85-86. 68 it is therefore disconcerting to me that buchanan gives as an example of the way in which the implementation of some rights in the existing does work to the disadvantage of some elements of some collectivistic moralities the right of the individual to choose a marriage partner. according to him, “if effectively implemented everywhere, would presumably disadvantage moralities that view the choice of a marriage partner as a decision for the family or for the village elders, rather than the individual. buchanan, a., “the challenge of ethical pluralism”, cit., p. 271. 69 fishkin, j.s., beyond subjective morality: ethical reasoning and political philosophy, yale university press, 1984, p. 12. 70 on this understanding of ethical objectivism see atienza, m., filosofía del derecho y transformación social, trotta, madrid, 2017, pp. 193-220. federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 200 or islamic values to the current international human rights system. first, the belief that a completely prior self-independent of the community can be, in addition to a philosophical position underlying certain neo-contractualist formulations, a psychological or sociological thesis on the identity of individuals. the processes of socialization, the impossibility of language, thought or moral life outside the social order demonstrate that the individual owes to the social matrix the image he has of himself and his conception of good. the person is parasitic of society with respect to the image it has of itself, even when it is conceived as an individual71.the community is, to a greater or lesser extent, constitutive of identity and belonging to it an almost as important need as individual freedom. hence, it makes no sense to radically oppose the individual to the community since, as raz explains, freedom presupposes the availability of options to choose, options that presuppose a culture. it is largely our quality as members of a culture that determines the horizon of our opportunities, of which we can become or (if we are older) than we could have been72. the recognition of this community dimension of human condition and dignity, together with the fact that not only individuals but also groups may be vulnerable and need protection, would be the basis for the recognition of the collective rights of indigenous peoples over the last few decades. such rights constitute the needed holistic response of the law to the human condition and its vulnerabilities73. with this recognition, international practice would have assumed a less individualistic view of human rights that reflects more adequately the social embedded of individuals and the importance of collectivistic values. a second form of individualism associated with human rights that is also unacceptable is the view of rights as demands insensitive to the collective responsibilities and general interests of the political community. the conception of human rights as "trumps" promoted by dworkin would have encouraged a view of these as absolute demands, which in all cases prevail not only over the decisions of the majority, but also over considerations based on public order or the general interest (not measured in simple terms of maximizing utility)74. in this way, human rights would operate as totally exclusionary reasons for action, which would function more kantiano, regardless of the consequences of their fulfilment. if it adopts this vision, it is very likely that human rights will end up being considered as something essentially opposed to the common good and, consequently, to collectivistic values. this latter view is not acceptable for a number of reasons. first, no philosopher rejects the possibility that human rights may be limited, not only for other rights, but also for reasons of public order, general interest, etc. certainly, the consideration of an interest or need as deserving of protection as a human right presupposes a strong predisposition not to accept tradeoffs with other rights and to impose limits that are difficult for states to cross. however, even the basic legal rights that dworkin has primarily in mind, cannot be, as he claims, to act as 71 mulhall, s. & swifft, a., liberals and communitarians, blackwell, oxford, 1996. 72 raz, j., «multiculturalism: a liberal conception», in ethics in the public domain. essays in the morality of law and politics, oxford university press, 1995, pp. 181-182. 73 wiessner, s., “the cultural rights of indigenous peoples: achievements and continuing challenges”, the european journal of international law, 22, 1, pp. 121-140. 74 dworkin, r., “rights as trumps” in waldron, j., (ed), theories of rights, oxford university press, oxford, 1984, pp. 153-167. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 201 trumps over appeals to the general welfare. hence, "human rights are resistant to trade-offs, but not completely so"75. except the rights not to be tortured, not to be subject to cruel and unusual punishment, and not to be held in slavery or servitude, it does not appear that, at least from a moral point of view, there are absolute rights76. moreover, it is also not sustainable that the consideration of an interest as deserving of consideration as a human right automatically generates, without further considerations, duties that operate as exclusionary reasons. for the naturalistic or ethical vision of these rights, which considers them pre-institutional demands based on the mere human condition, the existence of the duties they impose only depends on the values that make them morally desirable, regardless of how feasible or accessible their economic and political satisfaction is today. on the contrary, for the political vision, it is not enough to affirm that an interest is universal in order to determine the responsibilities that come with its satisfaction. a satisfactory explanation of what the existence of a human right entails will depend on several considerations: whether of dignity and individual interest are sufficient to impose an obligation on others and on whether it succeeds in providing some explanation of the origin of the resources to satisfy it, on whether it is feasible to fulfil it and on the reasons why a certain person has to provide them77. therefore, it is not possible to conclude that there is a conceptual tension between individual human rights and collective values. secondly, it is not true that the sole purpose of human rights is to protect individuals against the state or the community. in favor of this last reading, it is pointed out that the current regime of international human rights is, fundamentally, the response given by the international community to the horrors of the second world war. human rights were conceived as instruments to avoid the repetition of situations in which a state dominated by certain collectivist conceptions denying the moral value of each and every person (fascism, nazism, etc.) could attack the basic interests of all individuals. however, this view does not sufficiently take into account that the objective of the interwar totalitarian ideologies was, as much or more than individuals, national, ethnic and religious groups and communities: jews, communists, gypsies, etc. hence, the importance of this protective vocation of individuals taking into account their status as members of groups and not just separate individuals. the creation by the nuremberg tribunal of the crime of genocide is a clear exponent of the need to give life to new legal concepts that reflect the collective dimension that encouraged the persecution and murder of millions of individuals during that period. also, the udhr, and the process of internationalization of human rights driven by it, has this dimension. some theorists have highlighted how the recognition and international protection as human rights of some classic freedoms (for example, freedom of movement within borders), would have, in addition to the function of promoting individual autonomy, protect certain ethnic or religious groups from suffering discrim 75 griffin, j., the idea of human rights, pp. 20-21, 76. 76 vid. webber, g., “proportionality and absolute rights” in jackson, v & tushnet, m, proportionality, cambridge university press, 2017, pp. 75-99; finnis, j., “absolute rights: some problems illustrated”, the american journal of jurisprudence, 61, 2, 2016, pp. 195–215 77 beitz, c., the idea of human rights, cit., p. 109. tasioulas, j. 2017. “minimum core obligations: human rights here and now”, p. 22. available at https://openknowledge.worldbank.org/handle/10986/29144. (consulted on 15/03/2019). federico arcos ramírez the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 202 ination, be excluded from political power, or be economically exploited and socially stigmatized78. therefore, an international human rights regime would be of great value, even if all current morals were collectivistic.79. viii. final considerations the examination of the parochial objection leads to the conclusion that it is not relativism or skepticism but ethical-cultural pluralism that is the main challenge to the legitimacy and universal validity of human rights. it does not question that human rights can be morally justified, but (a) that the justification that has prevailed since the approval of the udhr is not the only one but one of the possible ones and (b) that this justification has arbitrarily given, under a deceptive appearance of universality, a weight or protagonism far superior to individualistic values than to collectivistic. i have examined two attempts to confront this critique of a very different sign: constructive theory and ethical minimalism. both are at the end unconvincing since, in different ways, they avoid facing the inescapable task of developing a discourse on the ethical reasons that justify the current internationally recognized human rights system. faced with this approach, the consideration that one of the basic functions or dimensions of human rights is to serve as protection of the individual against potential threats not only from political power but also from ethnic, cultural or religious communities, constitutes a form of ethical and political individualism that can be defended as a point of view proper to a minimum or modest ethical objectivism. such an ethical objectivism would be fallibilistic and would avoid confusing objectivity with singularity80. dworkin, one prominent defender of ethical objectivism versus ethical pluralism acknowledges, in the case of international human rights, it is much more difficult “to defend the hedgehog against the different foxes”81. for this reason, it admits the possibility that there may be, within certain limits, non-individualistic justifications valid for internationally recognized human rights. instead of only as the protection of a certain space of inviolability of the individual against the community, its foundation can also be a plurality of interests that are not reduced to autonomy or liberty, but also others such as achievement, friendship, play and avoidance of pain82. in addition to the justification of rights in the abstract, this justifying pluralism would also operate when specifying the content of the rights and in the weighting between those cases in which they could conflict with other rights or the general interest. it is in this dimension that his falibalistic character of the moral objectivism for which i advocate becomes most evident. 78 miller, d., «is there a human right to immigrate? » in ypi, l. & fine, s. (eds), migration in political theory: the ethics of movement and membership, oxford university press, oxford, 2016, pp. 11-31, at. p. 24. 79 in this sense tasioulas, j., “parochialism and the legitimacy of international law”, cit, p. 37. 80 wolf, s., “two levels of pluralism”, ethics, 1991, p. 791. 81 besides dworkin, “no doubt we must take pluralism into account in deciding what account of human rights could possibly be agreed upon in treaties and enforced in practice”. dowrkin, r., justice for hedgehogs, the belknap press of harvard university press, cambridge, massachusetts, 2011, p. 339. 82 tasioulas, j., “parochialism and the legitimacy of international law”, cit., p. 37. the challenge of ethical-cultural pluralism to the universality of human rights the age of human rights journal, 12 (june 2019) pp. 184-203 issn: 2340-9592 doi: 10.17561/tahrj.n12.10 203 in the line followed by wolf, nagel or alvarez83, this not necessarily linked the idea of an answer based on the truth of the arguments. for tasioulas, an example could be the compatibility or not of the recognition of the right to life and the permitting of the death penalty in certain cases84. another example of pluralism when it comes to harmonizing conflicting values is the regulation of the use of the islamic veil in public spaces in different european countries. while some, such as france, have shifted the balance to the side of collective values, such as the duty of the state to provide education under premises of neutrality when not directly public order, others, such as germany, have done so on the side of individual freedom. in addition to being compatible with ethical objectivism, justificatory pluralism makes it possible to realize that, although it considers that an ethical individualism such as this one offers the best justification for the current international human rights system, it is not only not the only one, but it is surely also a justification based on a correct but limited vision that does not capture the whole moral truth. surely, even in the version i have defended, an individualistic justification of human rights can, in certain positions, establish an overly strict dichotomy between the individual and society, just as collectivist morality fails to recognize that human suffering has an irreducible individual dimension, which can be adequately confronted only in a society that is not hierarchically organized85. hence the need to promote a dialogue between the two morals that makes the moral universe of others less strange, that allows recognition by all cultures of their weaknesses and limitations, that is willing to incorporate alternative knowledge and that, finally, does not rule out that in the justification of human rights there is probably something still to be decided or that admits better solutions to the currently existing. 83 alvarez, s., “multiculturalismo, cosmopolitismo y conflictos” in ruiz miguel, a (ed), entre estado y cosmópolis. derecho y justicia en el mundo global, trotta, madrid, 2016, p. 185. 84 according to him, “perhaps (…) the capacity of the perpetrator of even the most heinous wrongdoing to atone, justifies the prohibition of the death penalty, as in article 1 of protocol no. 6 to the convention for the protection of human rights and fundamental freedoms. it is a further question, however, whether the only eligible orderings of the relevant values justify the same conclusion, with the result that the right, to life must be interpreted by all societies as incompatible with capital punishment”. ibid, p. 35. 85 santos, b., «towards a multicultural conception of human rights» in hernández truyol, b., moral imperialism. a critical anthology, new york university press, n. york, 2002, p. 49. constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 187 constitutions, minorities and superdiversity eduardo j. ruiz vieytez1 abstract: superdiversity is an interesting concept that needs to be incorporated into the field of legal sciences. a comparative analysis of the european constitutions shows that constitutional references to culturally based minorities reflect the particular political context of each country, although there is a correspondence between the categories generally employed in comparative constitutional law and those in common use in international institutions. in addition to the cultural elements that characterise minorities (language, ethnicity, religion, nationality), other identity factors such as sex (gender), physical appearance (phenotype), opinions or convictions and social or economic status are generally included in anti-discrimination provisions. however, other elements that are relevant to the idea of superdiversity, such as place of residence within an urban environment and employment status, hardly appear in the european constitutional texts. if superdiversity is implemented without calibrating it to each context it may pose a threat to the fair and appropriate treatment of traditional minorities. keywords: superdiversity, cultural diversity, minorities, constitutions, comparative law, discrimination. summary: 1. introduction. 2. superdiversity and the constitutional comparison. 3. diversity elements in the european constitutions: minority groups and discrimination grounds. 3.1. constitutional references to minority groups. 3.2. cultural and identity elements as discrimination grounds. 4. minorities, discrimination grounds and superdiversity: analysis and challenges. 5. conclusion. 1. introduction this paper discusses the constitutional treatment of diversity, with special emphasis on minorities. it specifically aims to analyse how the constitutions of european countries deal with the minority groups within their societies, and whether they in any way reflect superdiversity as a category. the analysis is limited to the fundamental texts and not extended to the full scope of constitutional law. the starting hypothesis is that constitutions cover cumulative grounds of discrimination and specific minority situations, depending on the particular context and tradition of each country. at the same time, however, common patterns can be found in identifying the elements of diversity that are currently incorporated into constitutional texts. this exercise is intended to increase awareness of the challenges of today's superdiverse societies and to assess the position of traditional minorities under european constitutions. a fundamentally comparative method will be used to do this. i will first define the object of study by approaching superdiversity and its meanings from a constitutional comparative lens. i will then outline how diversity markers are present at european constitutions analysing how and how often minority references and specific grounds of dis1 universidad de deusto / deustuko unibertsitatea, spain (ejruiz@deusto.es). mailto:ejruiz@deusto.es constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 188 crimination are mentioned by the constitutions, identifying those that are most frequently found, and reflect the complex diversities that are usually included in the generic notion of minority. finally, from the previous analyses i will draw some conclusions and warn about the challenges that constitutional law should meet concerning diversity management today. 2. superdiversity and the constitutional comparison the term of ‘superdiversity’ was coined by sociologist steven vertovec (2007) to reflect the complex dynamics and relationships caused by population movements in urban settings, while also taking into account both cultural and social/legal factors. this concept has found wide resonance in the social sciences, particularly in europe (deumert 2014, 116; meissner and vertovec 2015, 541; arnaut, blommaert, rampton and spotti 2015; creese and blackledge 2018; pavlenko 2018; foner, willem and kasinitz 2019). there is not a unique idea about what superdiversity means. indeed, vertovec classifies 7 ways in which superdiversity has been used in different social sciences (vertovec 2019). as a minimum, it can be stated that superdiversity has been understood as a concept, as an approach and as a methodology tool. as a concept, superdiversity is sometimes read as synonymous with ‘very much diversity’ or ‘more ethnicity’ to reflect an increasing complexity of migration dynamics and cultural relations derived from it, particularly in urban settings, going beyond simple differences understood in terms of binary oppositions. used as a methodology, superdiversity looks for deepening or complementing traditional multiculturalist approaches and incorporating analysis that captures and goes beyond ethnicity or national belonging as their main element. in addition, the superdiversity approach aims to improve the analysis of current social phenomena that derive from population movements different from those that occurred after the second world war. at the same time, it seeks to account for the complex differentiating factors involved, rather than to carry out a segmented or static analysis of social groups. in this sense, the superdiversity approach poses a challenge for so-called traditional minorities, insofar as their sometimes already weak or vulnerable position can be diluted into a diffuse amalgamation of differentiating elements that blur the outlook of a minority as a recognisable subject in need of protection. it is true that superdiversity entails a multitude of factors, among which differences in socio-economic and legal status are equally important. however, the term is primarily designed to address diversities resulting from recent population movements in the context of urban settings, which does not necessarily match the needs of many of europe's traditional minorities. how superdiversity can be a tool applicable to the field of national minority protection has yet to be studied and reflected upon. philimore, sigona and tonkiss have pointed out that the interest sparked in migration studies by the superdiversity proposition has not been transferred to research from the point of view of governance and policymaking (philimore, sigona and tonkiss 2020). similarly, this approach has yet to be imported into legal studies. the emphasis on the variety of differentiating elements and interaction between them leads to relating supereduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 189 diversity not only to the protection of minorities, but above all to the intersectionality studied for the field of anti-discrimination law. i will analyse here which factors european constitutions incorporate as possible grounds of discrimination, as well as their frequency of occurrence and their relation to the idea of minority traditionally used in the main legal and political documents on the subject today. if superdiversity is to be a useful concept for the legal sciences, it will first be necessary to analyse the extent to which the law addresses diversity factors and their possible cross-relationships. comparison of constitutional texts is needed for such an analysis. comparative law emerged during the 19th century, with the first international congress of comparative law being held in 1900 on the occasion of the world exhibition in paris in the same year. however, the early days of comparative law were marked by an interest in private law, and the comparison of constitutions did not gain momentum until the latter part of the 20th century (ginsburg and dixon 2011: 2). regarding the constitutional comparison of minority rights and mentions, the most relevant existing international studies are either partial, or limited in its material scope (hannum 1993; de varennes 1996; thornberry 1991; capotorti 1991; dinstein and tabory 1991; yacoub 1995; fenet 1995; pentassuglia 2002)2, as it is the case with the comparison of anti-discrimination provisions (osin and porat 2005; chopin and germaine-sahl 2017). 2 in spain, several scholars have published relevant research about minorities in the last 30 years, but not following a systematic comparative approach. among others, we can mention (in alphabetical order): arp, b. (2008), las minorías nacionales y su protección en europa. centro de estudios políticos y constitucionales, madrid; bautista jimenez, j.m. (1995), “el convenio marco para la protección de las minorías nacionales: construyendo un sistema europeo de protección de las minorías“, en revista de instituciones europeas, vol. 22, no. 3, 939-960; carbonell sanchez; m., “minorías y constitución”, in carbonell sánchez, m and valdes, d. (2000), constitucionalismo iberoamericano en el siglo xxi, 1532; carbonell sánchez, m. (2000), “constitucionalismo, minorías y derechos”, isonomía: revista de teoría y filosofía del derecho, no 12, 95-118; carnerero castilla, r. (1999), “el convenio marco del consejo de europa para la protección de las minorías nacionales”, en boletín jurídico de la universidad europea de madrid, no. 2, 1999; castella subirats, s. (2002), la protección internacional de las minorías. el estatuto jurídico internacional de las minorías: una aproximación histórica al desarrollo normativo y la acción institucional, tarragona, silva editorial; conde perez, e. (2001), la protección de las minorías nacionales en la organización para la seguridad y la cooperación en europa (osce), universidad complutense, madrid. contreras mazario, j.m. (2004), las naciones unidas y la protección de las minorías religiosas, tirant lo blanch, valencia. de lucas, j. (1993), “algunos problemas del estatuto jurídico de las minorías. especial atención a la situación en europa”, in revista del centro de estudios constitucionales, no. 15, 97-128; deop madinabeitia, x. (2000), la protección de las minorías nacionales en el consejo de europa, oñate, instituto vasco de administración pública; diaz barrado, c.m. (1999), la protección de las minorías nacionales por el consejo de europa, madrid, edisofer; diaz perez de madrid, a. (2004), la protección de las minorías en derecho internacional, granada, universidad de granada; fernandez liesa, c.r. (2001), “la protección de las minorías en el derecho internacional general. análisis de la evolución y del estatuto jurídico internacional”, in mariño menendez, f., fernández liesa, c.r. and diaz barrado, c.m., la protección internacional de las minorías, ministerio de trabajo y asuntos sociales, madrid, 51-217; garcia rodriguez, i. (ed.)(2001), las minorías en una sociedad democrática y multicultural, alcalá de henares, universidad de alcalá; gonzalez hidalgo, e. y ruiz vieytez, e. (2013), “el derecho a la autonomía como contenido emergente del derecho a la participación política de las minorías nacionales en europa”, revista constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 190 the comparative method, considered a fifth method of constitutional interpretation (häberle 2010: 387), requires accurately defining the object of study from the outset, as well as recognising some limits. this comparison focuses on the european continent, including all the states that are members of the council of europe, as well as those that only have borders with members of the council. consequently, there are 50 constitutions corresponding to the sovereign states in this geographical space to be analysed. state-aspiring entities that have obtained fewer than 10 international recognitions have electrónica de estudios internacionales, no. 24; gonzalez hidalgo, e. and ruiz vieytez, e. (2012), “la definición implícita del concepto de minoría nacional en el derecho internacional”, derechos y libertades, no. 27, 17-56; gutierrez vega, p. (2006), “minority report. la ‘vis atractiva’ del concepto de ‘minoría’ sobre el de ‘pueblo indígena’ en la convención marco para la protección de las minorías nacionales”, in perez royo, j., urias martinez, j.p. and carrasco duran, m. (eds.), derecho constitucional para el siglo xxi, vol. ii, thomson-aranzadi, cizur menor, 5045-5065; jimenez piernas, c.b. (1999), “el convenio marco para la protección de las minorías nacionales, de 1 de febrero de 1995, y su aplicación en españa”, in garcia rodriguez, i. (ed.), las ciudades de soberanía española: respuestas para una sociedad multicultural, universidad de alcalá, alcalá de henares, 105-130; lópez basaguren, a. (2013), “la carta europea de lenguas regionales o minoritarias: ¿un modelo para las sociedades multilingües más allá de la protección minoritaria?”, in lopez castillo, a. (dir.), lenguas y constitución española, 129-149; mariño, f., diaz barrado, c.m. and fernandez liesa, c. (2001), la protección internacional de las minorías, madrid, ministerio de trabajo y asuntos sociales; parejo alfonso, l. (2000), “minorías y constitución”, in rodríguez palop, m.e. and tornos, a., derechos culturales y derechos humanos de los inmigrantes, universidad pontificia de comillas, madrid, 141-170; petschen verdaguer, s. (1990), las minorías lingüísticas de europa occidental: documentos (1492-1989), parlamento vasco, vitoria-gasteiz, 37-87; prieto sanchis, l. (1996), tolerancia y minorías: problemas jurídicos y políticos, universidad de castilla-la mancha, cuenca; relaño pastor, e. (2003), la protección internacional de las minorías religiosas, centro de estudios políticos y constitucionales, madrid; ruiz vieytez, e. (1999), the history of legal protection of minorities in europe (xviith xxth centuries), university of derby, derby; ruiz vieytez, e. (2006), minorías, inmigración y democracia en europa. una lectura multicultural de los derechos humanos, tirant lo blanch-universidad de valencia, valencia; ruiz vieytez, e. (2008), “minorías, nacionalidades y minorías nacionales. la problemática aplicación en españa del convenio marco para la protección de las minorías nacionales”, in revista vasca de administración pública, no. 82, 187-225. ruiz vieytez, e. (2011), “nuevas minorías y diversidad cultural”, in añon roig, m.j. and solanes corella, a. (eds.), construyendo sociedades multiculturales. espacio público y derechos. universidad de valencia-tirant lo blanch, valencia, 45-82; ruiz vieytez, e. (2013), “immigration and cultural justice: a reflection on human rights of "new" minorities”, in merle, jean-christophe (dir.), spheres of global justice. global challenges to liberal democracy. political participation, minorities and migrations, springer science, london, 365-377; ruiz vieytez, e. (2013), “minority marriage and discrimination: redrafting muñoz díaz v. spain”, in brems, e. (ed.), diversity and european human rights, cambridge university press, cambridge, 401-425; ruiz vieytez, e. (2014), “derechos y minorías nacionales”, in pecesbarba martinez, g.: fernandez garcia, e.; de asis roig, r.; ansuategui roig, j. and fernandez liesa, c. (dirs.), historia de los derechos fundamentales. siglo xx. vol. v, dykinson, madrid, 1083-1151; ruiz vieytez, e. (2014), “minorías nacionales o étnicas, lingüísticas y religiosas”, in barranco aviles, m.c. y churruca muguruza, c. (eds.), vulnerabilidad y protección de los derechos humanos, tirant lo blanch, valencia, 139-166. ruiz vieytez, e. (2014), “españa y el convenio marco para la protección de las minorías nacionales: una reflexión crítica”, revista española de derecho internacional, vol. 66-1, 55-80; soriano diaz, r., (2004), “las minorías y la constitución española”, in betegón carrillo, j., laporta san miguel, f.j., prieto sanchís, l. and de páramo argüelles, j.r., constitución y derechos fundamentales, presidencia del gobierno. madrid, 543-568. eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 191 been excluded, but kosovo and the vatican/holy see are included, as they maintain diplomatic relations with more than 100 un member states. among these 50 states there are certainly very different political forms and sizes, but at the same time more similarities than differences can be found from a constitutional point of view. one of the most significant limitations of comparison in constitutional law is the linguistic diversity it implies. the european constitutions to be analysed are written in different languages and very few of them can be compared in their original version. this comparative exercise is only possible by using unofficial translations of constitutional texts into a single language. this poses problems in identifying concepts in languages and that do not always have a clear correspondence in english or vary in meaning depending on the socio-cultural contexts (pegoraro and rinella 2007, 102). in addition, there is no internationally standardised legal terminology for any area of comparative law, nor for the one being dealt with here, which entails accepting that identity of terms does not necessarily mean identity of meanings. similarly, the differences between european constitutions are not only limited to linguistic aspects, but also to other features. most of them are inscribed within very similar legal-political cultures and a many have been adopted over the last decades. but these are different texts. from the point of view of structure, the most notable differences are those cases where we do not have a formal written constitution in the strict sense (united kingdom), and where a text is not specifically called a constitution. for the czech republic the charter of fundamental rights and freedoms will be taken as a reference, whereas for sweden the instrument of government will be used. in the rest of the countries, a constitutional text can be clearly recognised. although this comparison of constitutional provisions is not exhaustive in nature, such a large and relatively homogeneous set of constitutional texts can provide innovative and relevant evidence in a methodologically valid comparison. 3. diversity elements in the european constitutions: minority groups and discrimination grounds 3.1. constitutional references to minority groups constitutional references to minorities or similar groups are very uneven in european constitutions. this analysis includes general or group-specific references that do not correspond to the population majority in the country in question, or to its official elements. of the total of 50 constitutions, 16 can be found in which there is no explicit reference to minorities3, which means that a total of 34 incorporate in some way one or more of the categories of minorities or a concept directly related to minorities. these include the case 3 these are the constitutions of a) very small countries such as andorra, monaco, san marino, malta, the vatican, luxembourg, liechtenstein and iceland; b) countries that are significantly reluctant to recognising minorities: france, turkey, and azerbaijan; c) countries that recognise minorities but whose constitutional texts do not contain references to the issue, basically because they are old texts: denmark, germany, ireland, and the netherlands; and d) the united kingdom, which has no formal written constitution. constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 192 of the georgian constitution, which does not include categories of minorities, but does contain one allusion to ‘minority rights’ in article 38.2. the remaining 33 constitutions incorporate concepts that refer to minorities or groups that are not part of the majority in each country. the term most frequently used is that of ‘national minority’, which appears in the constitutions of ukraine, the czech republic, poland, albania, bosnia, armenia, estonia, romania, croatia, and serbia. similar terms are employed in other constitutions. according to the translations, the term ‘national group’ is used in the constitutions of slovakia and kosovo; ‘national community’ in those of hungary, slovenia, and montenegro. the latter also refers to the ‘minority nations’. in addition, there are three constitutions (spain, hungary, and serbia), which include the term ‘nationalities’. there is a total of 16 constitutions that contain terms similar to the ‘national minorities’ category together in this first group of countries. the second group of concepts is related to religious minorities. the terminology is also diverse here. the term ‘religious community’ predominates, which can be found in the constitutions of hungary, slovenia, croatia, serbia, montenegro, albania, portugal, switzerland, north macedonia, finland, norway, and belgium. the concept of ‘religious minority’ as such is only mentioned in the swedish constitutional text. kosovo and belarus incorporate the term ‘religious group’, and norway the term ‘belief community’. finally, the greek constitution uses the term ‘holy community’ to refer to the special case of the monastic communities of mount athos. thus, there is a total of 16 constitutions that contain references to religious minorities. an admittedly separate case, albeit related to this kind of minorities, is the very original reference to ‘ideological and philosophical minorities’ (art. 11) in the belgian constitution. the adjective ‘ethnic’ has also characterised minorities, both in un documents and in some legal systems. in european constitutional terms, the expression ‘ethnic minorities’ appears in the texts of latvia, sweden, poland, and the czech republic. other constitutions incorporate very similar terms. this is the case of ‘ethnic communities’ in the constitutions of lithuania, belarus, and hungary, and ‘ethnic groups’ in austria (’autochthonous ethnic groups’), slovakia, and kosovo. finally, it is worth mentioning here that the hungarian constitution is the only one that maintains the category of ‘racial community’, retaining an adjectival form to refer to the concept of minority found in the documents from the 1920s and 1930s. consequently, the total number of constitutions which incorporate some reference to minorities on the basis of ethnic differences is 10. in the context of ethnic minorities, there are four other constitutions that include categories relating to indigenous peoples or minorities, which have traditionally benefited from being considered ethnic minorities in the interpretation of article 27 iccpr. thus, the category of ‘indigenous minority people’ appears in the russian constitution, and that of ‘indigenous people’ in those of finland and ukraine. additionally, the constitutions of sweden, norway and finland refer to the sámi as a ‘people’. linguistic minorities are less often found in european constitutions. this concept is only included in the constitutions of sweden, italy, switzerland, and austria. the eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 193 kosovo constitution refers to ‘linguistic groups’ and the swiss constitution alludes to ‘linguistic communities’. thus, the language issue is the least frequently found in constitutional texts that have traditionally used an adjectival form for the term minority. this is consistent with increased explicit references to minority language rights in some constitutions and to specific references to certain non-majority languages or their speaker communities. finally, there are other related concepts that can be identified in a comprehensive review of the 50 european constitutions. the albanian constitution refers to ‘minorities’ (art. 3) and the swedish constitution to ‘minority groups’ (ig, chapter 2) both examples of non-adjectival uses. the most commonly used term, however, is ‘communities’, which appears in the constitutions of kosovo, north macedonia, and belarus. the first two of these refer on several occasions to ‘communities not in the majority’ or ‘underrepresented communities’. the latter also adds the term ‘social communities’ (art. 14). the constitutions of cyprus, north macedonia, kosovo, and slovenia also use the concept of ‘community’ when referring to specific groups within their territory4. the finnish constitution also alludes to ‘other groups’ (art. 17). all in all, 16 european constitutions contain references to national minorities or very similar concepts; another 16 include allusions to religious minorities; 15 constitutions refer to ethnic minorities or indigenous peoples, and 5 to linguistic minorities. two other constitutions refer to philosophical or ideological minorities and minority groups, respectively. a comparative analysis of the constitutions (see table 1) seems to confirm that the adjectives that continue to define minorities today are the same as those cited in the 1992 un declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities. this indicates that the most outstanding diversity factors for this purpose continue to be religious, ethnic, linguistic, and national. 3.2. cultural and identity elements as discrimination grounds nearly all european constitutions incorporate an anti-discrimination provision; there are certainly few that do not. apart from the specific case of the united kingdom5, there are no articles prohibiting discrimination in the constitutional act of denmark, the fundamental law of the vatican city state, and in the constitutions of luxembourg and monaco. three other constitutions incorporate references to non-discrimination in other singular provisions, such as the one on freedom of conscience and religion (art. 44 of the 4 these references are the following: for slovenia, the hungarian and italian national communities (art. 11); and the roma community (art. 65); for kosovo, the serb community (arts. 59, 64, 78), the roma community, the ashkali community, the egyptian community, the bosnian community, the turkish community, and the gorani community (art. 64); for northern macedonia, turks, vlachs, roma, serbs, and bosniaks (art. 78); for cyprus, the greek and the turkish communities (arts. 1, 2, 108). 5 as for england and wales, the non-discrimination principle was incorporated in the race relations act (1965), the equal pay act (1970), the sexual discrimination act (1975), the disability discrimination act (1995), the gender recognition act (2004) and the equality act (2010). constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 194 table 1: constitutional categories relating to minority or non-majority groups international categories other related constitutional categories constitutions which include them no. of const. national minority ukraine, czech republic, poland, albania, bosnia, armenia, estonia, romania, croatia, serbia 16 national group slovakia, kosovo national community hungary, slovenia, montenegro minority nations montenegro nationalities spain, hungary, serbia religious minority sweden 16 religious community hungary, slovenia, croatia, serbia, montenegro, albania, portugal, switzerland, north macedonia, finland, norway, belgium religious group kosovo and belarus belief community norway holy community greece linguistic minority sweden, italy, austria 5 indigenous linguistic minorities switzerland linguistic groups kosovo linguistic communities switzerland ethnic minority latvia, sweden, poland, czech republic 10 ethnic communities lithuania, belarus, hungary ethnic groups slovakia, kosovo autochthonous ethnic groups austria racial community hungary indigenous people finland, ukraine 5 indigenous minority people russia (sami) people sweden, norway, finland (ideological and philosophical minorities) belgium 1 generic concepts minorities albania 8 minority groups sweden communities kosovo, north macedonia, belarus, cyprus, slovenia communities not in the majority kosovo, north macedonia underrepresented communities kosovo other groups finland eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 195 irish constitution), the one recognising the right to life, honour, and liberty (art. 5.2 of the greek constitution), and the one that limits the restrictions on rights derived from the application of states of emergency (art. 25 of the constitution of montenegro). of the 42 european constitutions that include a specific anti-discrimination clause, the texts from belgium, latvia, poland, belarus, liechtenstein, and norway do not incorporate a list of grounds of discrimination. therefore, considering the three mentioned in the previous paragraph, there is a total of 39 lists of grounds of discrimination in european constitutions. these 39 listings can be presented as an exhaustive and closed list of grounds, (model followed by 16 constitutions: austria, bulgaria, france, germany, greece, ireland, italy, lithuania, malta, portugal, romania, azerbaijan, georgia, macedonia, moldova and san marino) or as a non-exhaustive or open-ended list of factors (like in the following 23 countries: czech republic, cyprus, croatia, slovakia, slovenia, spain, estonia, finland, hungary, netherlands, sweden, andorra, armenia, bosnia, iceland, kosovo, montenegro, russia, ukraine, turkey, albania, serbia, switzerland, slovakia, slovenia, andorra, turkey, serbia, and switzerland). the latter can be technically specified through the incorporation of a general residual ground (‘any other possible social or personal status’ or similar formulations) or through initial expressions that present them as illustrative within the list (‘in particular...’, ‘including such as...’, or similar). the main difference between the above models, is the scope for intervention by the courts in the application of anti-discrimination rules. in the case of closed lists, their action is basically limited to considering only the grounds included, whereas in an open-ended model they have a wider scope for intervention in the identification of possible additional grounds (solanke 2017, 43). the analysis of the frequency and importance given in europe to the possible grounds of discrimination at the constitutions, will provide us some guidelines to understand the factors of cultural diversity recognised by comparative constitutional law. considering the linguistic differences in their wording, the first grouping of the same or very similar terms results in 50 different factors being identified. as for their frequency range within the european constitutions, the grounds ‘sex/gender’ and ‘race’ appear in more than 30 constitutions. ‘language/linguistic affiliation’ and ‘political opinion/condition/ conviction/belief/views’ appear in more than 20 constitutional texts. and other grounds mentioned by more than 10 constitutions are ‘colour (of skin)’, ‘property (status)’, ‘(other) opinion’, ‘birth’, ‘national origin’, ‘(social) origin’, ‘ethnicity’ and ‘nationality’, being the rest of grounds cited by less than 10 constitutions, including ‘belonging/association with/ affiliation to a national minority’. however, many of these elements show clear commonalities among them. this initial analysis is still too open and many of the factors or elements emerging can be considered close to each other. therefore, a second grouping has to be made, based on the semantic proximity of several of the categories listed. these different groupings can help to simplify and improve the analysis. a first group is based on the different ways of referring to religion, religious belief, religious conviction, religious affiliation, faith, worship or other similar terms. the second macro-group includes references to visible phenotypic aspects of people such as ‘race’, ‘skin colour’, ‘colour’ or ‘genetic traits’. the third constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 196 one results from interrelating elements such as convictions, opinions or beliefs that are not expressly religious, ideologies, opinions or philosophical ascriptions. other groups include the various references to social status (social condition/social circumstance/social affiliation/social belonging/social origin/social status/social position/class); economic status (economic situation/economic condition/financial position/material standing/property/property status); national origin (origin/place of origin/homeland/national origin/ nationality/national affiliation); ethnicity (ethnicity/ethnic identity/ethnic origin/ethnic affiliation); occupation (occupation/way of life); and personal status (personal condition/ personal circumstance/personal status/official status/estate). there may also be a macro-group for health-related items (health/disability/functional disability/physical, mental, or psychological disability), another for membership of political or trade union organisations (membership of public associations/organisations/trade union/political parties/political affiliation), and another for membership of minorities (belonging to/association with/ affiliation to a national minority/minority group/community). this second grouping exercise reduces the final number of discrimination grounds to 25, of which 8 are present in 20 or more constitutions in europe (see table 2). other less frequent elements that are in principle highly relevant for superdiversity include ‘birth’, with 14 mentions; ‘ethnicity’ (ethnic identity/ethnic origin/ethnic affiliation) with 10 mentions, ‘minority belonging’ (belonging to/association with/affiliation to a national minority/minority group/community) with 7, and ‘place of residence’, with 3. table 2: groups that contain the grounds of discrimination included in at least 20 european constitutions groups of terms terms included in constitutions no of constitutions religion religion/religious affiliation/religious condition/ religious condition/creed/faith/sect/religious opinion/ religious conviction/religious belief 39 sex sex / gender/gender/gender identity 36 physical appearance race/skin colour/colour/genetic features 35 ideology or opinion opinion/other opinion/worldview/ political views/other views/conviction/other conviction/ideological belief/ philosophical belief/belief/other belief/ideological convictions/political opinion/political condition/ political conviction/political belief 35 national origin origin/place of origin/homeland/national origin/ nationality/national affiliation 32 language language/linguistic affiliation 29 social status social condition/social circumstance/ social affiliation/social belonging/social origin/ social status/social position/class 26 economic status economic situation/economic condition/ financial position/material standing/property/property status 23 eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 197 ‘culture’ and ‘ancestry’ appear only once. other grounds mentioned by few constitutions include health/disabilities, personal status or circumstances, membership of political or social entities, education, age, sexual orientation, parentage and occupation. this implies that more than three quarters of the grounds of discrimination in european constitutions relate to religion, sex (gender), physical appearance (phenotype), opinions or beliefs, national or ethnic origin, language, and social or economic status. this leaves a much lower frequency for other possible diversity factors such as sexual orientation, disability, age, and personal or family status. if national or ethnic origin is understood as expressing the differences in legal status that being foreign or a refugee entails, these are the factors that are commonly mentioned when describing superdiversity. if, in addition to analysing constitutional texts, we have a look at the main international legal instruments relating to human rights, a conclusion could be drawn that the elements of diversity most frequently cited adhere to a very similar pattern, which shows that the legal-political culture that inspires them is very close to that which inspires european constitutions. thus, the most frequently cited grounds of discrimination in international treaties are physical appearance (race, colour, genetic characteristics), origin (national, ethnic or social origin, descent, birth), religion, sex, social status, opinion (conviction), language and economic status (economic position/wealth, wealth, affluence). lower frequencies can be again found for factors such as disability, age, or sexual orientation6. in short, although the legal concept of minority is associated with certain culturally-based aspects of identity, such as religion, language and ethnicity, it is in the analysis of the elements that may cause discrimination that comparative constitutional law better reflects the idea of superdiversity, considering a broader set of relevant factors or elements. nevertheless, the reduction of the legal concept of ‘minority’ to the cultural-identity sphere has a substantive explanation and a raison d'être. this justification entails differentiating between two categories: ‘national identity’ and ‘dominant (social) reality’ (ruiz vieytez 2016, 9). 'cultural’ elements shape (majority) national identities and by virtue of this define minorities. conversely, other important factors such as gender, age, sexual orientation, or functional ability also require policies of inclusion, affirmation, or accommodation; but these demands are not defined in opposition to a majority national identity but in opposition to a dominant social reality. these factors do not identify a majority society vis-à-vis other neighbouring societies, and therefore do not affect the design of the state, or of public space, in the same way as the strictly cultural factors that define a national 6 the listings found in the following nine texts have been compared and analysed: universal declaration of human rights (art. 2), international covenant on civil and political rights (art. 26, which repeats the grounds listed in art. 2), international covenant on economic, social and cultural rights (art. 2), international convention on the elimination of all forms of racial discrimination (art. 1), convention on the rights of the child (art. 2), international convention on protection of the rights of all migrant workers and members of their families (art. 7, which repeats the list in art.1), european convention for the protection of human rights and fundamental freedoms (art. 14). treaty on the functioning of the european union (art. 10), charter of fundamental rights of the european union (art. 21). constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 198 identity. national identity (based on a majority linguistic, national, ethnic, or religious tradition) defines and separates danish society from german society, or french society from italian society. on the contrary, none of these societies identifies as such with a generation, a gender, or a given disability. groups who have a minority sexual orientation are not confronted with a ‘national identity’ but with a ‘dominant social reality’ at a given historical moment. european countries do not distinguish themselves from each other by sexual orientation, but by language, religious-cultural traditions or ethnic and symbolic elements associated with them. thus, the technical concept of minority is confined to these realities in which difference is proclaimed in the face of the majority ‘national identity’ and not in the face of the ‘majority social reality’. the dynamics of the two factors are very different (and contradictory: exclusion versus assimilation), as are the type of collective identities they form, and the legal solutions that both categories deserve or need. this distinction does not exclude the possibility of talking about intersectionality or interactions, but it is crucial in order to understand the impact of the two types of factors, something that may be overlooked in the superdiversity approaches. 4. minorities, discrimination grounds and superdiversity: analysis and challenges from the previous analysis, it can be concluded that the set of diversity factors contained in most european constitutions correspond, in general terms, to those mentioned in the literature on superdiversity. however, some further clarification of this general principle is in order. in constitutional law there are hardly any references to the level of integration into the labour market and to residential geographical segregation, two aspects that frequently appear in analyses of superdiversity. similarly, the importance of the legal status of an individual, especially in terms of their foreign status, is partly diluted at the constitutional and international level. differences in the legal status of nationals and foreigners are taken for granted in legal systems, precisely because they are defined by those very legal systems. although, in theory, discrimination factors should refer to all persons without reference to their citizenship status, the right to equality is mediated by this element. the same applies to legal nationality when defining national minorities on the european continent. the predominant definition excludes those who do not have the status of nationals from this category, in an attempt to separate the realities of the new and old minorities, which are increasingly socially and legally intertwined. some elements mentioned by the constitutions are also worth mentioning that are the result of a recent process of incorporation. factors such as differences in gender or physical appearance (race) are today embedded in the political cultures of european societies, yet they are the product of a long historical struggle that has crystallised at different times. references to sex or gender have been incorporated into constitutions generally in the last 25 years. however, today it is the second most cited ground in all european constitutions. this shows that there is not always a direct relationship between the age of a ground of discrimination and its frequency of occurrence in european constitutions. what can be seen is that the total number of grounds of discrimination contained in european constitutions is increasing, which would be more in line with a more dynamic and complex approach to diversity. eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 199 it is true that to speak of superdiversity is to emphasise the dynamics and processes generated within diverse interactions and less the impact of each identity factor statically or in isolation. meissner and vertovec proposed that the research focus on diversity be changed, shifting ‘from analysing diversity to analysing diversifications’ (meissner and vertovec 2015, 550). constitutions, insofar as they are texts, are limited instruments and can only incorporate concepts on which public policies can be based, or those that are recognised as relevant to law. but legal texts are also subject to change and mutation. the determination of one factor or another by legal texts is the product of a creative tension between different forces, cultural and political contexts and a reciprocal influence between constitutions of other countries, international human rights norms, or judicial interpretations. constitutions are not static and are subject to policies that help consolidate or transform them, incorporating ideas and demands that emerge from their historical and social context. in any case, research in comparative constitutional law demands taking into consideration the ‘cultural diversity’ of constitutional experience (häberle 2010, 393). the fact that the law is formulated through texts does not imply that diversification rather than mere diversity cannot be incorporated in the application of the law. this, however, requires more advanced legal interpretation techniques than the ones currently used. in this context, the role played by legal pluralism must be considered when analysing the utility of the superdiversity approaches for legal studies. however, pluralism and superdiversity are not concepts at the same level of functionality. of course, legal pluralism can be an adequate response to manage certain types of diversity. but it is not easy to see a total correspondence or implementation of legal pluralism in relation to the diversities and diversification processes that superdiversity points out. nevertheless, further research and reflection is needed to explore how superdiversity approaches may foster legal pluralism or lead to new ways of expansion or intensification of it. another key concept in this regard is that of intersectionality, on the basis of which several forms of discrimination or restrictions of rights can be identified when the two or more diversity factors are combined. unfortunately, european constitutions do not include explicit references to multiple, cumulative, or intersectional discrimination. superdiversity, applied to the legal field, aims to enhance the detection of multiple forms of discrimination and, in particular, of intersectional discrimination. to this end, it should take advantage of the existence in many anti-discrimination lists of residual or open-ended provisions. this allows for the inclusion of intersectional discrimination that may otherwise be left out of judicial analysis. however, it also appears that society is diversifying and becoming increasingly complex faster than the law is able to keep up with. in this sense, it is clear that there is a great need to incorporate the superdiversity perspective into legal studies as well. in other words, it is necessary to incorporate legal parameters into the analysis of superdiversity, not only as a factor that generates it, but also as a management instrument. the constitutional comparison suggests that the process of including diversity factors as possible grounds of discrimination reflects an ongoing contextualisation of constitutional texts. the grounds of discrimination provide some guidance to understand which groups are constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 200 regarded as being potentially vulnerable in each society, or which groups are stigmatised or stereotyped (solanke 2017, 62). superdiversity should be a useful approach to increase current awareness of how these stigmas are generated and prevented through legal norms, and thus prevent them from having social impact to the extent possible. at the same time, it is necessary to enquire whether superdiversity itself can be a valid approach for a long time to come, also in legal terms. this will depend on whether the categorisation of people into groups, however dynamic, will continue to prevail over other possible differences or forms of discrimination. information and communications technologies point to new forms of social relations and a lower impact of traditional collective categories. in particular, future forms of discrimination may be based not so much on the existence of one or more elements of collective identity but on an algorithm that processed a vast cross-section of different individualised data. future superdiversity will not result from the combination of multiple, dynamically interacting groups, but from there being as many categories as there are individuals, whose personal data are potential grounds for social or institutional discrimination. in the 21st century we may face a growing problem of ‘individual(ised) discrimination’ (harari 2018, 73) rather than differences based on the existence of diversity factors as they are currently considered, albeit in a dynamic and changing way. it might be a kind of exponential intersectionality on exclusively individual data that expose the population to very different social treatments beyond their ethnic, legal, cultural or gender memberships. these kinds of potentially excluding social dynamics are much more difficult to combat from traditional legal and political perspectives. the same risk affects persons belonging to traditional minorities. this makes it advisable to incorporate superdiversity as an approach within legal studies, but ensuring that it is linked to the implications of the technological potential that is rapidly becoming a reality. 5. conclusion a comparison of existing european constitutions shows that the references to culturally-based minorities are not systematic, and that they reflect the particular cultural context of each country, since constitutions as also a cultural piece (häberle 2010, 384). however, there is a correspondence between the categories generally employed in comparative constitutional law and those in common use in international institutions. the european constitutions analysed provide a more consistent and generalised picture as regards identity factors that may be grounds of discrimination. in addition to the cultural elements that characterise minorities (language, ethnicity, religion, nationality), other identity factors such as sex (gender), physical appearance (phenotype), opinions or convictions and social or economic status are generally included in anti-discrimination provisions. nevertheless, there are other elements that are affected by superdiversity, such as place of residence within an urban environment and employment status, which hardly ever appear in the basic legal texts. at the same time, the various legal conditions that determine a person’s foreign status are only defined in general terms. as far as the recognition of minorities is concerned, many countries do not incorporate in their constitutions references to the minorities that exist within them, not even historical or traditional eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 201 minorities. ultimately, the decision-making power of each state in drafting its constitution still largely prevails over a more honest and comparable approach to diversity. this shows the immense power that states (and their majorities) continue to have in defining not only their policies, but also the very description of the existing reality. diversity exists based on what social scientists analyse and demonstrate but is only taken into account politically and legally in some states and in different ways. in this respect, it is not possible to find in the european constitutions a common philosophy of identity, but a plurality of fragments that is culturally grounded and remains linked to the concrete country context (häberle 2006, 98). this translates into the concept widely used by the european court of human rights of the ‘national margin of appreciation’, which reinforces this hard sovereignty of each state in the enforcement of fundamental rights, which especially affects minorities or non-majority groups in the broadest sense. superdiversity is an interesting concept coined in the framework of social sciences that needs to be incorporated into the field of legal sciences. this can be implemented by using it as an approach to the analysis of the effectiveness of the law; and to ensure that the relationship between the different legal conditions of people and other factors of diversity are studied in a more integrated way, both by law and by other social sciences. however, if superdiversity is implemented without calibrating it to each context, it may pose a threat to the fair and appropriate treatment of traditional minorities. these can be diluted in an amalgamation of dynamic relationships of diversity factors that obscure some needs and confuse the policies to be adopted in each situation. it is not surprising that the concept of superdiversity has been fundamentally perceived and constructed from majority perspectives, as has traditionally been the case with other approaches that claim to be pluralist. it is necessary to integrate the difficult debate on the relationship between old and new minorities, and the policies to be applied to each of them, but without allowing superdiversity to hide realities and needs that are also present. to this end, the different nature of identity factors needs to be appropriately addressed, rather than simply be incorporated into a mix of concepts and relationships in the name of a superdiversity approach. i have proposed here a fundamental distinction between the factors that construct diversities vis-à-vis a national identity or vis-à-vis a dominant social reality (section 3, in fine). this and other possible distinctions will be necessary tools to ensure that the superdiversity approach will truly incorporate a positive development for pluralist policy justice. finally, it is worth noting that there is a need to be attentive to how emerging technologies will evolve and the impact they will have on society. the identity factors at play may be less and less important on their own, but this could also be the case for the current dynamics of diversification. the elements that give rise to discrimination or segregation may not only be one or several cross-memberships of certain groups or categories, but an individualised aggregate of personal data that can be much more difficult to analyse and combat politically. law, by its very nature, is ill-prepared to address these threats, as are the other social sciences. they are failing to pay due attention to the processes that will end up transforming and de-territorialising our social relations and our memberships. not just the minority approach, but also the very concept of majority might be seriously challenged in such a future scenario. constitutions, minorities and superdiversity the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 202 references arnaut, k.; blommaert, j. rampton, b.; spotti, m. (eds)(2015), language and superdiversity, routledge. doi 10.4324/9781315730240 capotorti, f. (1991), study on the rights of persons belonging to ethnic, religious and linguistic minorities, new york: united nations/centre for human rights. chopin, i. and germaine, c. (2017), a comparative analysis of non-discrimination law in europe. the 28 eu member states, the former yugoslav republic of macedonia, iceland, liechtenstein, montenegro, norway, serbia and turkey compared, brussels: european commission (directorate-general for justice and consumers). creese, a. and blackledge, a. (eds.)(2018), the routledge handbook of language and superdiversity, oxon: routledge. doi 10.4324/9781315696010 de varennes, f. (1996), language, minorities and human rights, the hague: martinus nijhoff. deumert, a. (2014), ‘digital superdiversity: a commentary’. discourse, context, and media, 4-5, 116-120. doi 10.1016/j.dcm.2014.08.003 dinstein, y. and tabory, m. (eds.)(1991), the protection of minorities and human rights, dordrecht: martinus nijhoff. fenet, a. (dir.)(1995), le droit et les minorités, brussels: bruylant. foner, n, willem duyvendak, j and kasinitz, p (2019), ‘introduction: super-diversity in everyday life’, ethnic and racial studies, vol 42-1, special issue: super-diversity in everday life. doi 10.1080/01419870.2017.1406969 ginsburg, t. and dixon, r. (eds.)(2011), comparative constitutional law, cheltenham: edward elgar. https://doi.org/10.4337/9780857931214 häberle, p (2006), ‘aspectos culturales de la identidad cultural’, derechos y libertades, no 14, pp. 89-102. häberle, p (2010), ‘métodos y principios de interpretación constitucional. un catálogo de problemas’, revista de derecho constitucional europeo, no. 13, pp. 379414 (translation to spanish by professor francisco balaguer callejon from häberle, p. (2000), ‘methoden und prinzipien der verfassungsinterpretation ein problemkatalog’, revue européenne de droit public = european review of public law, vol. 12, no 3, pp. 867-895). hannum, h. (1993), documents on autonomy and minority rights, the hague: martinus nijhoff. harari, y.n. (2018), 21 lessons for the 21st century, london: jonathan cape-penguin random house. meissner, f. and vertovec, s. (2015) ‘comparing super-diversity,’ ethnic and racial studies 38(4): 541-555. https://doi.org/10.1080/01419870.2015.980295 https://doi.org/10.4337/9780857931214 https://doi.org/10.1080/01419870.2015.980295 eduardo j. ruiz vieytez the age of human rights journal, 19 (december 2022) pp. 187-203 issn: 2340-9592 doi: 10.17561/tahrj.v19.6770 203 osin, n. and porat, d. (eds.)(2005), legislating against discrimination. an international survey of anti-discrimination norms, leiden-boston: martinus nijhoff publishers. pavlenko, a (2018) ‘superdiversity and why it isn't: reflections on terminological innovations and academic branding’, in barbara schmenk, stephan breidbach, and lutz küster (eds.) sloganization in language education discourse. conceptual thinking in the age of academic marketization, bristol: multilingual matters. doi 10.21832/9781788921879-009 pegoraro, l. and rinella, a. (2007), diritto pubblico comparato. profili metodologici, padova: cedam. pentassuglia, g. (2002), minorities in international law, strasbourg: council of europe/ european center for minority issues. phillimore, j.; sigona, n. and tonkiss, k. (eds.)(2020), superdiversity, policy and governance in europe, multi-scalar perspectives, bristol: bristol university press. https://doi.org/10.1332/policypress/9781447352051.001.0001 ruiz vieytez, e. (2016), ‘cultural traits as defining elements of minority groups’, the age of human rights journal, special issue on identity, belonging and human rights, no 7; doi 10.17561/tahrj.n7.2 solanke, i. (2017), discrimination as stigma. a theory on anti-discrimination law, oxford-portland: hart publishing. thornberry, p. (1991), international law and the rights of minorities, oxford: clarendon press. vertovec, s. (2007) ‘super-diversity and its implications’, ethnic and racial studies 29(6): 1024-54. https://doi.org/10.1080/01419870701599465 vertovec, s. (2019) ‘talking around super-diversity’, ethnic and racial studies, 42:1, 125-139, doi: 10.1080/01419870.2017.1406128 yacoub, j. (1995), les minorités, quelle protection?, paris: desclée de brouwer. received: november 28th 2021 accepted: january 24th 2022 https://doi.org/10.1332/policypress/9781447352051.001.0001 https://doi.org/10.1080/01419870701599465 constitutions, minorities and superdiversity abstract 1. introduction 2. superdiversity and the constitutional comparison 3. diversity elements in the european constitutions: minority groups and discrimination grounds 3.1. constitutional references to minority groups 3.2. cultural and identity elements as discrimination grounds 4. minorities, discrimination grounds and superdiversity: analysis and challenges 5. conclusion references the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 73 legal culture on justice and truth: the tribunals of inquiry about bloody sunday josefa-dolores ruiz-resa1 abstract: almost 50 years ago, in the events that happened during the so-called bloody sunday (derry 1972, 30th january), 13 catholic civilians were killed because of the actions of the british army during a civil rights march against internment without trial in northern ireland. other 13 civilians were injured. while the circumstances were unclear, these civilians were considered to be terrorists, which seemed to justify the gunfire. the findings on bloody sunday from two tribunals of inquiry (1972 and 1998-2010), and the reactions that their resulting reports raised are an excellent example of cultural impregnation in law. in this regard, it is possible to find a general notion of justice as truth. guaranteeing such notion (or, at least, the willingness to ensure it) seemed to facilitate the peace process in northern ireland. under the light of these events, the following pages aim to analyse how that legal culture of justice as truth is displayed in the two bloody sunday tribunals of inquiry as well as its contribution to the contestation of the british legal system or its legitimacy. this paper starts by reviewing previous studies about the conceptual framework of the analysis—it examines the concept of “legal culture” and the understanding of justice as truth, as well as the definition of tribunal of inquiry. next, it argues cultural perceptions regarding bloody sunday inquiries. the conclusions exposed reveal that the legal culture of justice as truth is also embodied in legalism and colonialism. keywords: legal culture, bloody sunday, tribunal of inquiry, justice, truth, legalism, colonialism, legitimacy. summary: 1. introduction. 2. conceptual frame. 2.1. legal culture. 2.2. truth as part of justice. 2.3. the tribunal of inquiry as part of public inquiries. 3. legal culture and bloody sunday tribunals of inquiry. 3.1. context. 3.2. trauma, anger and disappointment: legal culture on widgery inquiries during the 70s and 80s. 3.3. to set the truth: the justice campaign and other expressions of legal culture during the 1990s. 3.4 legal culture on the saville tribunal and report: legalism, colonialism and new legitimation for british law. conclusion 1. introduction margo harkin’s documentary ‘bloody sunday – a derry diary’ (final version, 2010)2 has a scene where a large crowd in front of the guildhall in derry—the symbol of the unionist domination—is watching prime minister david cameron on an enormous tv screen3. he is addressing the house of commons, reading his statement on the day 1 facultad de derecho, universidad de granada, spain (jruizr@ugr.es). 2 benson productions. available from: http://www.besomproductions.co.uk/sunday.html [retrieved 20/02/2020] 3 available on https://www.youtube.com/watch?v=kcsig8l7xa8 [retrieved 20/02/2020] legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 74 when the report of the second bloody sunday tribunal of inquiry, chaired by lord saville, was published. bloody sunday is the name given to the events that happened on 30th january 1972, when the british army killed 13 people and injured other 13 during a civil rights march in derry (londonderry, according to its british official name). it was a march against internment without trial in northern ireland. the march and the shootings happened in the contexts of the conflicts called the troubles. nonetheless, the report of the first tribunal of inquiry, chaired by lord widgery, sowed the suspicion that the killed and wounded people were terrorists, which explained the soldiers’ action as legitimate and justified the soldiers’ shootings. in his speech, mr cameron states (2010): ‘(…) mr speaker, i am deeply patriotic. i never want to believe anything bad about our country. i never want to call into question the behaviour of our soldiers and our army, who i believe to be the finest in the world. and i have seen for myself the very difficult and dangerous circumstances in which we ask our soldiers to serve. but the conclusions of this report are absolutely clear. there is no doubt, there is nothing equivocal, there are no ambiguities. what happened on bloody sunday was both unjustified and unjustifiable. it was wrong (…) the government is automatically responsible for the conduct of the army forces and for that, on behalf of the government, indeed on behalf of the country, i am deeply sorry’. suddenly, the audience watching the tv in the streets cheered and applauded. as mentioned above, the saville report was the result of the findings made by a second tribunal of inquiry about bloody sunday. it is considered that the setting up of this tribunal in 1998 led to the agreement of belfast, also known as the good friday agreement. a peace process between northern ireland and the british state just commenced. the goal of a tribunal of inquiry is not the judgments of guilt or innocence, but to find the truth about those situations or events that alarm people. however, the following and final scenes of the documentary show the victims’ families acquitting the victims themselves, as if they were judges, making the streets become a court, proclaiming the final judgment of “innocence”. thus, what ordinary people consider justice to be seems very different from what the law enacts. this proves that there is a “popular” sense of justice and a social culture of the legal and the fair. it is clear that since the second decade of 20th century, civil rights have included a collective dimension. this dimension links the idea of justice to the representations not only of the official or state legal culture but also the popular legal culture. this legal culture can be clearly observed in the bloody sunday’s events, with special emphasis on its inquiries, which are also progressively reverberating and being supported within films, poetry, pieces of theatre or tv documentaries, like harkin’s. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 75 the specific events that triggered bloody sunday revealed a background of increasing political tension and violence in northern ireland that started in 1968, when the protest against the situation spread out, leading to civilians being killed by the british army as riots intensified. many people were arrested and taken to camps at that time. it was a measure adopted by the unionist government of northern ireland (the stormont government) on 9 august 1971, and the british government supported it. according to british irish rights watch (1994, paragraph 2.2), “by the end of 1971 around 900 people, virtually all of them nationalists, were imprisoned, in violation of international norms on the right to a fair trial”. thus, internment must be understood within the framework of the troubles (the northern ireland political conflict), as this region continued to be part of the united kingdom but not of the republic of ireland. on the other hand, the troubles must be understood within the widespread political and social discrimination against catholics in northern ireland for centuries4. the anti-internment protests brought more riots and violence, more civilians shot dead by the british army or taken away for internment, as well as british soldiers, officers and other civilians shot dead by the irish republican army (ira). finally, on 10th january 1972, the prime minister of northern ireland, brian faulkner, banned all marches in northern ireland until the end of the year. however, an anti-internment march was organized by the northern ireland civil rights association (nicra), leading to the specific episode that is the object of this paper. the members of the nicra had organized a march in derry to protest against internment without trial in northern ireland. in derry, catholics lived in the districts of creggan and the bogside, which were republican no-go areas (they were called free derry). this place was under the effective control of the irish republic army (ira), which was considered to be a terrorist organization. it is no wonder that british security forces were unhappy with this and that the commander land forces in northern ireland, general ford, had ordered his troops “to recreate the state of law in the creggan and bogside” (british iris rights watch 1994: 2.3). the march was allowed to proceed in the catholic areas. however, it should not reach the guildhall square, as the organizers had planned. meanwhile, general ford ordered the 1st battalion parachute regiment (1st paras)—the toughest regiment in the army—to travel to derry to arrest rioters. thousands of people took to the streets. the march went peacefully until it arrived at the junction of william street and roseville street. a barrier in william street prevented protesters from venturing beyond it. at least 26 barriers surrounded the creggan and bogside to cordon them off from the rest of the city. nonetheless, about 200 marchers broke away from the procession and started to throw stones at the soldiers, turning the march into an “illegal demonstration” (british irish rights watch, 1994, p. 2). the soldiers fired rubber bullets and water cannon in return, and the parachute regiment started the arrest operation. in only a few minutes, the troops began the shooting that resulted in 13 civilians killed (most of them were young 4 a more comprehensive study about this can be found in neumann, 2003. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 76 men and even teenagers)5 and 13 injured6. among the wounded, there was one person who passed away from a brain tumour not long after the event. given that the trauma was thought to have contributed to the decease of this individual, his death was acknowledged as the 14th of bloody sunday7. none of the soldiers involved in the firing was killed nor slightly injured (british irish rights watch, pp. 6, 7). a tribunal of inquiry was immediately set up after the events, and the lord chief justice of england, lord widgery, was appointed chairman. having the lord chief justice handling this responsibility (that is, the head of judiciary of england and wales and the president of the courts of england and wales)8 revealed that the british government was taking the matter very seriously. nevertheless, some members of parliament had doubts about him being the sole member of the tribunal. the widgery tribunal did its work in a few months, and the final report was delivered 10th april with less than 100 pages. the immediate inquiries, collected in the widgery report, exposed that “none of the deceased or wounded is proved to have been shot whilst handling a firearm or bomb” (report of the tribunal 1972), while the conclusions in the report stated that the soldiers were not the first to open fire, meaning that they were not responsible for the victims. on the other hand, it concluded that, although some of the dead were “wholly acquitted of complicity in [handling a firearm or bomb], (…) there is a strong suspicion that some others had been firing weapons or handling bombs”9. relatives saw this as an offence against the victims because it implicitly entailed the fact that they were considered terrorists. however, photographs and eyewitnesses revealed that nobody was armed. in order to understand the families’ sorrow, it is necessary to take into account that new details came to light later on10, such as, the case of 22-year-old james wray, who was killed while lying wounded; the fact that william mckinney was killed when he was bending towards an injured person and that bernard mcguigan was killed when he tried to assist a wounded man, even though he was waving a white handkerchief in his hand. during the following years after the end of the widgery tribunal, new evidence brought out the troops’ actions, revealing that they might have shot at unarmed people, as 5 they were 17-year-old gerard donaghy, michael kelly, kevin mcelhinney, jack duddy and hugh gilmore, 19-year-old william nash, 20-year-old michael mcdaid, 22-year-old james wray, 26-year-old william mckinney, 31-year-old patrick doherty, 35-year-old gerard mckinney and 41-year-old bernard mcguigan. 6 john johnson, damien donaghy, michael bridge, michael quinn, patrick o’donnell, patrick mcdaid, alexander nash, margaret deer, michael bradley, patrick campbell, joseph friel, and daniel mcgowan. 7 john johnson. 8 the equivalent concept in spain would be the president of the supreme court and consejo general del poder judicial. 9 according to the conclusions of the report (1972), “10. none of the deceased or wounded is proved to have been shot whilst handling a firearm or bomb. some are wholly acquitted of complicity in such action. however, there is a strong suspicion that some others had been firing weapons or handling bombs in the course of the afternoon and that yet others had been closely supporting them”. 10 it is important to consider the investigations managed by civil rights associations, journalists, eyewitness and families. these investigations will be addressed later. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 77 well as that 3 victims were shot from the walls and not from the ground, which indicated that the soldiers did not open fire as a defensive action against armed demonstrators11. on the other hand, the use of terms like “acquitted” or “found not guilty” made people think that widgery tribunal ended up becoming a sort of trial of the victims, based on the adversarial system, rather than a tribunal of inquiry that is supposed to search for the truth from an inquisitorial approach. according to walsh (1997), certain elements led to this result: “it was chaired by the lord chief justice, it identified two adversarial protagonists… it left the presentation of evidence largely to these two parties, it conducted its proceeding along the lines of an adversarial trial and it delivered its report in a judicial style which found in favour of one party or the another on most issues”. in any case, victims, families and many other people would have preferred criminal charges against the shooters, but the evidence to warrant the criminal prosecution were considered insufficient12. on the other hand, the adversarial procedure did not seem a solid guarantee either, since it led to significant mistakes associated to other well-known cases likewise related to the troubles, like the guilford four and birmingham six. this very situation brought about important reforms to the adversarial procedures in england and wales during the last years of the 20th century, as van koppen and penrod (2003, p. 1) point out. many of these reforms concerned the guarantee for the right to a fair trial and, especially, the right to be heard by a competent, independent and impartial tribunal. trials seemed as biased as the widgery tribunal, which took the army’s side instead of acting as arbitrator. bearing this context in mind, the following pages aim to illustrate how the legal culture of justice connects justice to truth and how that connection impacts on the legitimacy of the states and their legal systems. in order to do so, this paper will analyse the events regarding the bloody sunday tribunals of inquiry. they are a paradigmatic example of how law, justice and legal culture are interconnected. the paper will also analyse the importance of truth as main content of justice in order to achieve a more legitimate social, political and legal system from a practical point of view13. the analysis will allow to come to the conclusion that justice and truth also interact with legalism and colonialism, which are likewise part of the legal culture. however, they demean in some way the victims and families’ claims and the peace process in northern ireland. the structure of the article goes as follows: after revising the studies about the conceptual framework of analyses—the notion of legal culture and justice as truth, as well 11 see circumstances in which people were killed, available at https://cain.ulster.ac.uk/events/bsunday/ circum.htm 12 the civil action for damages, the victims’ families received a modest payment because the victims were found not guilty of being shot while handling a firearm or a bomb. to know more about the judicial review of the event of bloody sunday, including the remedies from the international law and their little success, see walsh 2000, p. 284-313. 13 as it is well known, the importance of social acceptance of law to enforce it was pointed out by legal realism (ross, olivecrona, holmes, pound, frank). legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 78 as the definition of tribunal of inquiry—an analysis of the cultural perception about the tribunals of inquiries is introduced along with an evaluation of how legal culture dealt with the bloody sunday inquiries. the methodology of the article is based on the analysis of texts from different scholars addressing the concepts (legal culture, justice as truth) that will be applied to the analysis of documents that are related to bloody sunday tribunals of inquiry and to the presence of legal culture within them14. the analysis will not be performed from the scope of cultural theory, media studies, visual arts or social memory studies. instead, it will be based on legal philosophy, insofar as it is linked to its standard sections: the theory of law (assuming that law includes not only norms and institutions but also a cultural component), the methodology of legal knowledge (agreeing that the search for the truth is an intrinsic principle within the theory of procedure), and the theory of justice (considering truth as part of justice and political accountability within democracies). all three will provide a broader debate for connecting the theory of human rights to the fields of legal epistemology, ontology and ethics15. 2. conceptual frame 2.1. legal culture the idea of legal culture was mainly developed by lawrence friedman (1969, 1977), who inspired the law & society movement. he defended a social theory of law and considered that law was made up of three kinds of components: substantive, structural and cultural. more specifically, friedman (1969, p. 34) explains that16: “a working legal system can be analyzed further into three kinds of components. some are structural. the institutions themselves, the forms they take, the processes that they perform: these are structure. structure includes the number and types of courts, presence or absence of a constitution, presence or absence of federalism or pluralism, division of powers between judges, legislators, governors, kings, juries, administrative officers; modes of procedure in various institutions, and the like. other components are substantive. this is the output side of the legal system. 14 many of these documents are classified and available on cain (conflict archive on the internet, located at the university of ulster) web site https://cain.ulster.ac.uk/index.html, especially at https://cain.ulster. ac.uk/cgi-bin/dbase.pl. the bibliography consulted is temporarily related to the years between the two inquiries (1972-2010), especially, as well as to the echo that the second report had on public opinion and scholars during the following five or six years, which currently seems to be weakened. the forthcoming 50th anniversary is likely to make new studies arise. 15 those are considered the three fields within the legal philosophy. see legaz y lacambra, 1953, p. 30-34; bobbio, 1980, p. 91-101; salguero, 2014, p. 192-199. 16 this extended quotation is included in the present paper because friedman uses a list of situations, procedures, kind of people and set of prescriptive and descriptive statements in order to define the three components. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 79 these are the laws themselves –the rules, doctrines, statutes and decrees, to the extent they are actually used by the rulers and the ruled; and, in addition, all other rules and decisions which govern, whatever their formal status. other elements in the system are cultural. these are the values and attitudes which bind the system together, and which determine the place of the legal system in the culture of the society as a whole. what kind of training and habits do the lawyers and judges have? what do people think of law? do groups or individuals willingly go to court? for what purposes do people turn to lawyers; for what purposes do they make use of other officials and intermediaries? is there respect for law, government, tradition? what is the relationship between class structure and the use or non use of legal institutions? what informal social controls exist in addition to or in place of formal ones? who prefers which kind of control, and why? 17 these aspects of law –the legal culture-, influence all of the legal system. but they are particularly important, as the source of demands made on the system. it is the legal culture, that is, the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away (…) the living law of a society, its legal system in this revised sense (…) is the way in which structural, cultural and substantive elements interact”. friedman also distinguished between internal legal culture, which refers to the knowledge degree of legal practitioners on law and external legal culture, or the knowledge degree of people who are not lawyers. the distinctions between one type of culture and another have sparked to some controversy, just like the various meanings friedman assigned to this term in the second half of the 20th century. and yet, he admitted in later works that external legal culture is equivalent to legal consciousness, as it identifies with the opinions, values and expectations that ordinary citizens hold regarding the legal system. although it may seem obvious that lawyers have a different—and, apparently, isolated—view on law and themselves as compared to ordinary people (for they receive a specialised education), it is not possible to draw a clear distinction between internal and external legal cultures. thus, when jurists are learning and use internal legal culture, it should not be inferred that all vestiges of external or popular culture are eliminated. the reason why this happens is that the interpretation of texts (including legal ones) is seen as the way of bringing the meaning of the texts to the fore and updating it, which occurs when interpreters translate the texts following the culture at that time. gadamer (1977) highlighted this point when he said that the interpreters of a legal text are not limited to reproducing it; instead, they adapt it to their own historical time and social values. apart from the distinction of external and internal legal culture, friedman (1989, p. 1578-1579)18 distinguishes between legal culture and popular legal culture. by “legal culture” he means “ideas, attitudes, values and opinions about law held by people in 17 also in friedman, 1977, p. 6 and 7. 18 he referred to it in similar words in friedman, 1969 and 1994. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 80 society”. popular legal culture would mean, on the one hand, law-related ideas and attitudes held by ordinary people or, more generally speaking, by laypeople. in other words, it takes into account the opinion and attitude of ordinary people towards the substantive and structural components involved in legal systems. on the other hand, popular legal culture refers to “books, songs, movies, plays and tv shows (…) about law or lawyers and aimed at a general audience”. many studies have shown that modern “ordinary people” know very little about the law and legal systems. on many occasions, tv programs and movies become law educators. nowadays, tv trials are one of the most important tools for ordinary people’s legal education. trials are, according to friedman (1989, p. 1594), “boundary-maintaining devices” and help to “cement social solidarity by redefining and proclaiming the norm”. following vygotskii’s ideas on the intermediation of culture in our cognition (2010), jerome bruner (1990, 1996) highlighted how culture takes part in it and how school education and learning is a way of internalising cultural norms and values. bruner then pointed out how the law, as part of the culture, contributes to education through the legal narrative, including the stories that norms and case law narrate about political institutions, people out or within the law and also out or within societies (2003). indeed, a significant number of the most recalled films or tv series—one of the most important cultural expressions—deal with trials. examples include the well-known films twelve angry men, directed by lumet; judgment at nuremberg, by kramer; or witness for the prosecution, by wilder; and also have musicals like chicago (ebb, fosse & kander). in any case, trials have been and still are a kind of theatrical or ritualized display of law. friedman emphasized how the three components—structural, substantive and cultural—influence each other, and how, ultimately, the effectiveness of laws depends on the legal culture, both internal (that of practitioners and law theorists) and external or popular (the rest of the citizens). every meaning or dimension of the legal system rests, as friedman affirmed (1989, p. 1589), on sociocultural norms: habits, stereotypes, costumes, morality. either implicitly or explicitly, these norms are part of the components—structural, substantive or cultural—of every legal system. they also function as both unwritten and unconscious norms that bring cohesion in our societies and govern them (aristodemou, 2014, p. 5). in any case, the concept of legal culture should be regarded under the influence of the debate concerning the contradictory theoretical approaches to the concept of culture. there are, indeed, other conceptions of law rooted in—or involving—more metaphysical understandings of culture, such as those based on modern german philosophers like herder, fichte19, or postmodernist conservative ones20. considering that modern law is connected to the development of modern nation-states, the fact that legal cultures are also seen as expressions and tools for the spread of national cultures is not surprising. 19 about the conception of culture within them, see bueno, 2000 20 see gilroy 1995. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 81 on the other hand, a map can be drawn out of the conceptions of “culture” and “popular culture”, according to storey (2018). first, “popular culture” seems to be defined from the contrasts or connections to other theoretical categories such as folk culture, mass culture, high culture, working-class culture. second, it should be noted that the definition of culture itself is also very complicated and discussed. as to raymond williams (1983) put it, the term in english would mean “a general process of intellectual, spiritual and aesthetic development”, “a particular way of life, whether a people, a period or a group”, and “the works and practices of intellectual and especially artistic activity”21—texts and practices that produce meanings. “popular culture” would, therefore, be associated to the second and third meanings of culture, according to which, the concept of popular culture includes christmas celebrations and youth subculture, as well as soap operas, comics and pop music. third, the term “culture” is traditionally close to “ideology” and at times even interchangeable. this closeness allows “culture” and “popular culture” to approach certain meanings provided by marxism, such as masking the distortion of reality by producing false consciousness and particular images of the world chosen by one of the sides in a social conflict. consequently, this would mean that all texts are somehow political. as barthe’s work explains, “ideology” can be seen, as a producer or bearer of connotations— secondary unconscious meaning, including general words like “man” that would express the normal, the natural, the universal, in contrast to other human beings. nevertheless taking althusser’s approach, “ideology” could refer not only ideas but also material practices. keeping in mind the thoughts above, the concept of “popular culture” is much more than entertainment or leisure. it also implies political and social struggle (storey, 2018). fourth, “popular culture” is usually a complex combination of various meanings, according to williams: “well-liked by many people”, “inferior kinds of work”, “work deliberately setting out to win favour with the people”, and “culture made by the people for themselves”22. all possible combinations lead to different definitions of “popular culture”: that which is imported (typically from the usa) and opposed to culture as something coming from a lost or ideal folk or organic community, and that which is not high culture considered as difficult. this assumption results in oppositions such as popular press vs. quality press, popular cinema vs. art cinema, popular entertainment vs. art. a different combination leads to consider “popular culture” as “mass culture”—a mass-produced and mass-consumed culture—and “commercial culture” (storey 2018). finally, there is the conception of “popular culture” linked to the idea of hegemony (according to gramsci), which reflects the political and social struggles between dominant and subordinate groups [which in turn can be understood as cultural minorities or groups, according to, for example, the theories of justice as recognition]. the former would try to assimilate the latter into their ideas and world organization, while the latter would try to resist. therefore, “popular culture” is not a mass commercial culture, but a culture of spontaneous opposition by the people constituting the subordinate groups (storey, 2018). 21 quoted in storey, 2018. 22 quoted in storey, 2018. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 82 as a result, it is inevitable to accept a dynamic notion of culture, based on its meanings and samples (texts, practices, technologies, objects), but also on its producers: individual human beings gathered in social, political, legal and historical changing groups. this is where complex shifting power relations can occur, and they can shift through struggles and negotiations between groups and individuals within those groups. from this wide range of interpretations, one may derive certain assumptions that could refine the categories of legal culture and popular legal culture. thus, regarding high legal culture as high culture in terms of difficulty and rationality, as well as quality and minority—since it is available to very few people—, high legal culture might be including legal scholars’ works and practitioners’ writings. this should also be regarded as internal legal culture (in the sense of “lawyerly” produced or produced by lawyers). within the understanding of high legal culture, other manifestations of what is considered high culture can be added, like some forms of art and literature—poetry, theatre, novels, picture, sculpture, classical music, and even art cinema or jazz music. however, those would also involve external legal culture (“not lawyerly” produced or not produced by lawyers). on the other hand, popular legal culture would include forms of culture that are currently considered simpler, like products without intellectual quality. today these can be texts and other works like comics, murals, pop music—and its different styles including rock or rap—, soap-operas and other forms of culture represented through the mass media (television, press). these cultural manifestations can respond to mass and commercial culture to a certain extent, meaning quantity over quality, and they can also portray an idea of the law as a kind of resistance against the dominant legal culture and its ideas of law (traditionally supported and guarded by legal operators who are specifically trained). under the light of this meaning, popular legal culture can also include demonstrations, marches, memorials, tributes and many other actions that can be contemplated as articulated or spontaneous political activism. the meaning of high and popular legal culture could change if society changes what is historically and dialectically considered to be intellectually difficult. on this basis, the numerous studies available on law and literature include works that range from those contemplated within the western canon23, such as the merchant of venice, by shakespeare, to the comics about daredevil, a blind lawyer who became a marvel hero thanks to stan lee and bill everett. similar remarks can be made regarding law and film studies. 2.2. truth as part of justice seeing truth as a fundamental content of justice is a regular debate within the theory of justice, but also within the theory of legal procedure and social and political theory. in all these fields, truth is considered to be a vital value in justice, as it is well 23 see pérez 2006. about the western canon literature, see bloom, 1995. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 83 noticed by michele taruffo (2010, pp. 114-153). from the legal point of view, taruffo (2010, pp. 135-136) stresses that the procedure will not work by taking into account only the formal aspects because a fair resolution of a case implies an accurate determination of the facts. moreover, determining the truth of the facts through dynamic behaviour is the way for judges to be neutral or impartial. on the other hand, taruffo (2010, pp. 138-140) reminds us that justice as truth is a principal social value, because the truth is ethics as opposed to lies, as many moral philosophers like aquino or kant pointed out. more recently, other philosophers like b. williams and m. p. lynch have highlighted that truth matters as a necessary tool for social life (taruffo, 2010, pp. 110-111). according to language and communication researchers like paul grice, the main principle within social communication is truth. truth is necessary within the relations between a democratic state and its citizens, unlike dictatorships, totalitarian regimes and any sort of tyrant systems, where lies are the standard common tool (2010, pp. 111-114). furthermore, truth is an essential and traditional goal in inquisitorial legal procedures in order to ensure that there is no impunity but accountability. relying on the judge’s control, it is typical within civil law systems. adversarial legal procedures are rather based on the conflicting evidence and points of view of the parties, where the judge acts as an arbitrator—it is typically seen in common law systems (van koppen and penrod, 2003). in this context, truth is linked to persuasion and is mainly the result of negotiation or transition between the parties. therefore, it involves giving equal value to different views on the actual events. on the other hand, truth is the first step towards achieving reparation, and guarantees non-recurrence, which also needs to be remembered, mourned and retrieved as part of a so-called social or historical memory. as it is known, in september 2011, the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence was appointed by the united nations human rights council (resolution 8/11). a task requested by the council to this special rapporteur is “[t]o gather relevant information on national situations, including on normative frameworks, national practices and experiences, such as truth and reconciliation commissions and other mechanisms, relating to the promotion of truth, justice, reparation and guarantees of non-recurrence in addressing gross violations of human rights and serious violations of international humanitarian law (…)”24. undoubtedly, truth and justice have also become deeply connected today from the perspective of international legal institutions. currently, all these contents are also essential within transitional justice, considered to be “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”, as teitel (2003, p. 69) points out. according to her (2003), there are three different phases within transitional justice: the post-war phase, which goes from 1945 to 24 see the mandate of the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, available on https://www.ohchr.org/en/issues/truthjusticereparation/pages/mandate. aspx. last retrieved 19/02/2020). legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 84 the end of the cold war, is symbolized by nuremberg trials; the second phase or postcold war phase, which lasts to the last years of the 20th century, is focused on the truth commission rather than on trials; and the third phase or current phase, where transitional justice is extended and generalized. “a truth commission is”, according to teitel (2003, p. 78), “an official body often created by a national government to investigate, document and report upon human rights abuses within a country over a specific period of time”. although not part of the criminal justice systems or the judiciary, transitional justice entails a formal legal state initiative that also involves informal forms of dialogue and negotiation between victims and perpetrators. according to teitel, truth is juxtaposed to justice during the second phase, but truth commissions already existed but were called by different names, such as “tribunal of inquiry” in great britain. this second phase includes the human rights vocabulary and claims the rights to the truth as opposed to the duty of states to guarantee them. in any case, teitel (2003, p. 81) emphasizes the idea that there are conflicting relations among truth, justice and memory. in any event, it is possible nowadays to state that the right to the truth and its connection to the idea of justice are part of international human rights soft law. according to the report of the office of the united nations high commissioner for human rights (2006)25, the concept of this right roots in international humanitarian law (para. 5) and the current legal basis for the right to truth and the state duties related to it can be found within several legal documents, like for example (para. 4), the principles 2 (the inalienable right to the truth), 4 (the victims’ right to know) and 1 (general obligations of states to take effective action to combat impunity) set forth in the updated set of principles for the protection and promotion of human rights through action to combat impunity (2005)26. in any event, the enforced disappearances in the 1970s drove to pay more attention to the concept of the right to the truth (para. 8). since then, the general assembly has addressed issues related to it in numerous reports and resolutions like for example 3220 (xxix), 33/173, 45/165, and 47/132, which refer to “the desire to know” as “a basic human need” (para. 12). the commission has also referred to it (para. 16)27. van boven (2010) also reminds that the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (general assembly, resolution 60/147 of 16 december 2005)28 have included the search for the truth as a form of reparation to victims (principles 22 and 24). the right to the truth has been recognized as well at the american and european regional level. according to the report of the inter-american commission on human 25 rights study on the right to the truth (e/cn.4/2006/91 8 february 2006). available on https://documentsdds-ny.un.org/doc/undoc/gen/g06/106/56/pdf/g0610656.pdf?openelement 26 commission on human rights, 8 february 2005 (e/cn.4/2005/102/add.1) 27 other nu resolutions, reports and documents about truth and justice are available at https://www.ohchr. org/en/issues/truthjusticereparation/pages/internationalinstruments.aspx#truth 28 (a/60/509/add.1). josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 85 rights (2014)29, the legal framework of this right can be found in the articles xviii and xxiv of the american declaration on the rights and duties of man and articles 8 and 25 of the american convention on human rights, which are in some occasions connected (par. 69) to the right of access to information (article iv of the american declaration and article 13 of the american convention). its development is considered as a response to the phenomenon of forced disappearance, as a common practice within latin american dictatorships (para. 55 ff), and it implies the obligation to investigate and punish those responsible (para. 61 ff) and the obligation to establish the truth of what happened (para. 68 ff). according to navqi (2006) and lópez guerra (2018), the european court of human rights has inferred the right of the truth as part of several rights that are set forth in the european convention of human right: the right to be free from torture or inhuman or degrading treatment or punishment (article 3), the right to an effective remedy (article 13), the right to an effective investigation and to be informed of the results (article 10), the right to life (article 2)30 and the right to liberty and security (article 7). regarding the contents of the right to the truth, the office of the united nations high commissioner for human rights (2006: par. 38) considers that it implies to seek and obtain information on “the causes leading to the person’s victimization; the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law; the progress and results of the investigation; the circumstances and reasons for the perpetration of crimes under international law and gross human rights violations; the circumstances in which violations took place; in the event of death, missing or enforced disappearance, the fate and whereabouts of the victims; and the identity of perpetrators”. similarly, the inter-american commission (2014: par. 70) considers the following contents: “to know the truth about the events that led to serious violations of human rights, and the right to know the identity of those who played a role in those violations (…) and, depending on the circumstances of each case, to guarantee access to the information available in state facilities and files concerning serious human rights violations”31. finally, and taking into account the entitlement to the right to the truth, it is alleged to have two dimensions in the international and american framework: individual 29 the right to truth in the americas (oea/ser.l/v/ii.152 doc. 2 13 august 2014). 30 according to naqvi (2006: 257), this is displayed in several judgments like for example, judgment of 25 may 1998, kurt v. turkey, application no. 24276/94; judgment of 14 november 2000, tas v. turkey, application no. 24396/94; judgment of 10 may 2001, cyprus v. turkey, application no. 25781/94; judgment of 10 may 2001, cyprus v. turkey, application no. 25781/94, para. 136; judgment of 18-121996, aksoy v. turkey, application no. 21987/93; and judgment of 28 march 2000, kaya v. turkey, application no. 22535/93). this also applies where non-state parties may be involved: tanrikulu v. turkey, 1999-iv eur. ct. h.r. 459 (1999). 31 the inter-american commission (2014: 36) has summarized some important judgments that have determined these contents, since i/a court h.r., case of velásquez rodríguez v. honduras. judgment of july 29, 1988. series c no. 4, para. 181. see also bernales rojas 2016: 279-281. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 86 (referred to the victims and their families) and social (all society)32, but in the european framework, the social dimension only implies the right to be informed (lópez guerra: 25-29). 2.3. the tribunal of inquiry as part of public inquiries the tribunal of inquiry is part of the tradition of british public inquiry and accountability in public life. it is vested with all the powers of the high court. although it meets in public, it does not exercise its function in the same way as the high court exercises its criminal or civil jurisdiction in the adversarial system. in such cases, the opposing parties present the evidence, according to which the courts make a final decision. on the contrary, the tribunal of inquiry’s duty is to find evidence of what happened, to search for the truth. for this reason, the tribunal does not accuse individuals or institutions. according to the public administration committee publications of the uk parliament (2005), parliament has traditionally made such inquiries into government failures, but ensuring independence from political parties was not easy. however, after the impact of the committee’s investigations on the marconi wireless and telegraph company agreement (which chesterton said “had concluded [in 1913] as such affairs always conclude in modern england, with a formal verdict and a whitewashing committee”), the tribunal of inquiry (evidence) act 192133 was passed. many of those tribunals were now chaired by judges, who were considered more independent than members of parliament. this act was in force until the inquiries act 2005 was passed34. the search for truth is so important that act 1921 imposed no limitations on the tribunal’s control over its procedure, deadline and rules of evidence. it also operates under the inquisitorial approach in which truth is the fundamental goal, and it is the members of the tribunal and not those from the parties who are responsible for finding it (walsh, 1997). this was very well explained by lord saville (1998) during his opening statement of the second bloody sunday inquiry: “an inquiry like the present inquiry is quite different. here the tribunal takes the initiative in trying to ascertain the truth. unlike an adversarial contest, it is for the tribunal to seek all the relevant material. its task is not to decide the matter in favour of one party or side or another. indeed, from the point of view of the tribunal, there are no parties or sides. there will, of course, be those who have material evidence to give or who have a legitimate interest in challenging such evidence, but the tribunal will not treat them as sides or parties in an adversarial contest, but rather as a means of seeking out the truth”. about the first tribunal of inquiry, its chair, lord widegery (1972), said in his report: “(…) the inquiry was essentially a fact32 see the inter-american commission (2014: para. 70 and 71) and the office of the united nations high commissioner for human rights (2006: para. 35 and 36). 33 available at http://www.legislation.gov.uk/ukpga/geo5/11-12/7/section/1/enacted (last retrieved 19/02/2020). 34 available at http://www.legislation.gov.uk/ukpga/2005/12/contents (last retrieved 19/02/2020). josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 87 finding exercise (…) the bloody sunday first tribunal was not concerned with making moral judgments; its task was to try and form an objective view of the events”. in other words, there is no litigation neither plaintiff nor defendant, neither prosecutor nor accused (blom-cooper 2019). sir ian kennedy, chair of the bristol royal infirmary inquiry (1998-2001), summarised the functions that the inquiry had regularly accomplished under the act 1921: “the recognition and identification of different, genuine perceptions of the truth; learning; healing; catharsis; prescribing; and accountability”35. the “six cardinal principles” to be applied to the procedure of these tribunals were set out by lord salmond (1966, p. 17-18) in the report on these tribunals that he presented to parliament36: 1. “before any person becomes involved in an inquiry, the tribunal must be satisfied that there are circumstances which affect them and which the tribunal proposes to investigate. 2. before any person who is involved in an inquiry is called as a witness, they should be informed of any allegations made against them and the substance of the evidence in support of them. 3. they should be given an adequate opportunity to prepare their case and of being assisted by legal advisers and their legal expenses should normally be met out of public funds. 4. they should have the opportunity of being examined by their own solicitor or counsel and of stating their case in public at the inquiry. 5. any material witnesses they wish to call at the inquiry should, if reasonably practicable, be heard. 6. they should have the opportunity of testing by cross-examination conducted by their own solicitor or counsel any evidence which may affect them”. these principles were not statutorily enforceable, and yet they were adopted. according to blom-cooper (2019), these principles “carried strong overtones of adversarial litigation”, as sir richard scott (lord justice of appeal) had already stated in his report of the inquiry into the export of defence equipment and dual-use goods to iraq and related prosecutions (1996). the reason for this was the presence of either a cross-examination or lawyers representing their clients’ interests, which made tribunals of inquiries turn into lis. on the other hand, lord salmond (1966, p. 29) had made another recommendation that emphasised the perception that the tribunal of inquiries is sliding to the judiciary: the tribunal should be chaired by “a judge of high standing”. 35 see purdue (2009: 952). 36 lord salmond proposed them after the critics that lord denning’s inquiry into the profumo affair (1963) made arise. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 88 a strong legalism can be detected within the perception of a tribunal of inquiry. according to judith shklar37: first, judges are more reliable than politicians because the former are considered to be acting under the law, while the latter are considered to be acting under sectarian political ideologies; second, the law is thought to be neutral and objective, while politics seem uncontrolled; third, the law aims for justice, while politics for expediency. for these reasons, the law and the judges are considered “intrinsically virtuous” and, thus, superior to politics. in order to statutorily clarify the method of the tribunal of inquiry, ensure the inquisitorial approach, and move away from the adversarial system and the gravity field of the judiciary, the inquiries act 2005 was passed. it included, according to blom-cooper (2019, conclusions), two crucial reforms: “the establishment of a commission of inquiry that determines how and why the event concerned happened; and does not duplicate the finding of culpability of any individuals which is the remit of established courts of law. second, the 2005 act adopted the changed practice of investigation without any right of the witness to be alerted to potential criticism before giving evidence”. 3. legal culture and bloody sunday tribunals of inquiry 3.1. context truth is a fundamental claim of the gender, racial or national groups that have suffered severe violations of their rights, as in northern ireland (lawther, 2014; mcevoy, 2013; and campbell & ní aoláin, 2002). considering teitel’s classification of transitional justice, bloody sunday tribunals of inquiry showed the evolution of transitional justice from the second to the third phase within european territory, the results of which have impacted the global notion and current practice of transitional justice. in any case, the transitional justice system does not replace the adversarial criminal justice system, and families and human rights organizations are still waiting for formal accusations of murder or manslaughter against the soldiers and officers involved in the bloody sunday shootings38. nevertheless, the truth about how and why it happened—which is what a tribunal of inquiry is supposed to achieve—remains as important as determining public and individual accountability for it. as ulpiano once stated, justice is “the firm and continuous will to give each one his own”. establishing the truth is, therefore, the first step towards it, and this objective will be a shared claim among many cultural expressions surrounding the bloody sunday inquiries. the two bloody sunday tribunals of inquiry were settled under the act 1921. according to the act, this occurs on “rare occasions”, which explains its exceptional nature. a tribunal of inquiry had to be set up, according to lord salmond, chair of the royal commission on tribunals of inquiry (1966, p. 16), “when crises of public 37 quoted by blom-cooper 2019, conclusions. 38 at the moment, only one soldier is going to be charged, but none of the officers. https://www.theguardian. com/uk-news/2019/mar/14/bloody-sunday-trial-will-test-limits-justice-northern-ireland (last retrieved 09/03/2020). josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 89 confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed”. this crisis is “about the alleged misconduct of ministers or other public servants” (royal commission on tribunals of inquiry, 1966, p. 10) and, certainly, the bloody sunday events constituted one of those rare occasions: it was the first time that the british government publicly applied such violence during a peaceful march (campbell, 2013). although the tribunals of inquiries are not courts and the procedures within them are not trials under the adversarial system, they have been acting similarly, which was particularly evident in the bloody sunday inquiries. it seems that the presence of judges and certain procedural principles brought the tribunal of inquiries closer to courts and trials. if, as in the following pages, trials (understood within its broad sense) can be considered important tools for maintaining and transmitting legal culture while contributing to binding the system together39, it was clear that the widgery tribunal and its report did not contribute to that. instead, they fuelled the conflict in northern ireland by exposing the futility of peaceful civil rights marches against internment and peaceful political associations. the result was that people preferred the ira’s solutions over constitutional politics and law (campbell 2013). this was the situation that saville tribunal should resolve. with these points in mind, the following pages will focus on the legal culture in the two bloody sunday tribunals of inquiry, as well as the importance of establishing the truth as an essential part of justice, revealing different ways and features throughout history. legal culture expressions must be understood within a remarkable amount of high, popular, commercial or minority legal culture expressions that also include complaints, protest and resistance against the conflict in northern ireland. they refer to the independence of the republic of ireland, the conflict in northern ireland, the troubles and, even more specifically, the bloody sunday events40. studies have been carried out all of them within the scope of cultural theory, media studies, visual arts, and the emerging field of social memory studies41. regarding bloody sunday in particular, they list different types of cultural expressions such as films, dramas, poetry, visual arts like willie doherty’s work or the murals of bogside artist (the brothers tom and william kelly, and kevin hasson), among others. on the other hand, a list of 39 this idea is defended by friedman, 1969 and brunner 2003, as can be seen infra. it is taken as a central premise in this article. 40 in any event, talking about the “irish culture” is very complicated, according to the studies about these cultural expressions on the conflict in northern ireland. it can push us to a metaphysical idea of nation frequently rooted in hegemonic visions of it. however, it drives to omit the plurality and richness of individual and social points of view on it and to fall often in unilateral hegemonic visions of the history of one community, pretending to be the standard or universal face to other visions. this idea of national culture is rejected, for example, in gillespie 2008 regarding irish cinema and the irish-themed films. 41 see among others gleitman (2001), herron and lynch (2007), campbell and herron (2008), gillespie (2008: 212 ff), conway 2010, moi (2011), pötzsh (2011), clark (2012). legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 90 tv programmes about the troubles and bloody sunday is available at cain42. margo harkin’s tv documentary bloody sunday – a derry diary (2010 final version) can be considered part of them. even pop-music echoed the event—see john lennon and yoko ono’s sunday bloody sunday (1972), from the album some time in new york city (1972). they criticized the internments and shootings during the march of 30th january 1972. lennon’s album included one more song on the internment, the luck of the irish, which was inspired by a civil march in london (1971) he had attended. however, lennon thought that a new song denouncing the bloody sunday events was necessary. bloody sunday also inspired paul and linda mccartney to write give ireland back to the irish (1972)43. sunday bloody sunday is also the title of a u2’s song, in the album war (1983). the lyrics approach the end of the violence in northern ireland, and u2 members always stated that “this is not a rebel song”. still, u2’s song is played at the end of the film bloody sunday by greengrass, which was released at the sundance festival in 2002. it was the same year that sunday, by macdougall and mcgovern, was also released. both films are seen as two memories-making movies intended to search for the truth, although their perspective on the events is different (pötzsch, 2011, pp. 211-213). bloody sunday was mainly inspired by mullan’s book eyewitness bloody sunday (1997)44. this work focuses on the events of 30th of january and coincides with the widgery findings45, endorsing all responsibility for bloody sunday to the parachute regiment and exempting political and military leaders. on the contrary, sunday comes to the opposite conclusion. the directors went further, also addressing the years before bloody sunday by conducting a thorough investigation over three years. the research allowed them to understand bloody sunday within a wider historical context46, and to conclude that high political and military levels were involved in the military operation. as a cover-up, the widgery tribunal was thought to have denied justice to the victims and their families, which fuelled the conflict in northern ireland during the following years (pötzsh 2011, pp. 215-218)47. 42 available at https://cain.ulster.ac.uk/othelem/media/tv10yrs.htm cain has also compiled a list of films on the conflict in northern ireland, including the troubles and bloody sunday. available at https://cain. ulster.ac.uk/images/cinema/nimovies.htm (last retrieved 09/03/2020). the list also features films covering the guilford four (sheridan’s in the name of the father, 1993) and the birmingham six (beckham’s the investigation: inside a terrorist bombing, 1990). both are related to their corresponding trials too. 43 it was released as a single and recorded by the new mccartney’s band, the wings. it was considered proira and banned in the uk. 44 mullan was himself an eyewitness of bloody sunday massacre; he was 15 years old. 45 according to pötzsh (2011, p 214): “the killings were entirely unjustified (…) were carried out by an elite army unit out of control that bears sole responsibility for the fateful events. the soldiers lied about their conduct, yet without endorsement by military command or state authorities. none of the dead and wounded were armed. even though the ira did fire some shots that day, these shots did not influence the course of events in any way (…) the killings exacerbated the conflict (…)”. 46 it is interesting to underline that most of the scenes were filmed in the areas and streets in derry where bloody sunday happened. 47 campbell (2013) remembers that 1972 was the bloodiest year in a thirty-year struggle: 445 people were killed from february till december. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 91 now that the context is clear, the expressions of the legal culture revolving around the bloody sunday tribunals of inquiry will be discussed below. these expressions were mainly reports, marches and demonstrations, but also in poems and even theatre plays. they came from national and international civil rights organizations, political activists, bloody sunday’ victims and their families, people who attended the march in derry on 30th january, as well as journalists, legal scholars or scientists, legal practitioners and legislators. they all placed truth as the main content of justice, and judges as the best positioned to establish the truth. although they shared this starting point, their objectives and results differed. 3.2. trauma, anger and disappointment: legal culture on widgery inquiries during the 70s and 80s as mentioned above, the widgery tribunal and its report brought deceit and, thus, profound frustration. many people who attended the march on 30th january 1972 and the human rights association were unhappy with the widgery report, and the families of the injured and dead felt humiliated and offended as well (mccann 2006). however, they were not only in moral pain or trauma48, but also had to deal with being considered terrorists49. one of the earliest reactions to the widgery report was the document elaborated by the civil rights movement “to tell the world, through the eyes of derry citizens, what happened in their city on sunday 30th january 1972” (1972). this document can be seen as an example of the counter-hegemonic legal culture at that time since it represented the response of subordinate groups (ethnic-nationalist or gender groups like black people and women) against the legal culture of dominant groups (male, white, colonialist). however, they were connected to the international civil rights movement rather than to specific nationalist movements. this document stated: “the establishment of the widgery inquiry was meant to inhibit publication of eyewitness accounts and comment, shield those responsible and hide from the world descriptions of the terrible slaughter of innocent defenceless people. in speeches announcing the establishment of the inquiry both mr. reginald maudling, the british home secretary, and mr. edward heath, the british prime minister, publicly condoned the action of the british army. this pamphlet aims at telling the world, through the eyes of derry citizens, what happened to thirteen of their number on derry's bloody sunday”. there were strong suspicions that widgery tribunal was biased in order to avoid criticism about the violence that the british government applied to maintain its dominance in northern ireland. a book published by the photojournalist grimaldi (1972, 1998) was also beneficial to show these biases. grimaldi witnessed the events, and the photos that he and other 48 the deep trauma can also be explained from the violent and discriminatory environment where those people lived. about that, see hayes and campbell 2005. 49 see the families’ testimonies collected by campbell 2013. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 92 photojournalists took were essential to denounce widgery’s incomplete and biased inquiry, as noted by barcat (2014). these works can be seen as part of non-lawyerly legal culture that relied on the methods and tools provided by mass media workers, rather than those provided by lawyerly legal culture. during the first years after bloody sunday, other interesting expressions of this external legal culture emerged, revolving around those events. they also originated poetry or theatre. among several poems on bloody sunday50, a noted case in point is thomas kinsella’s butcher’s dozen: a lesson for the octave of widgery (1979)51, which is the one most closely related to the widgery inquiry and report. the title is a play on words between the popular idiom “a baker’s dozen”, which actually means 13 [it is said that during the middle ages bakers first started to add an extra thirteenth loaf of bread to ensure the correct weight by law52] while making a reference to the 13 people killed by the parachute regiment [making a carnage, as if they were butchers] during bloody sunday. the poem is “a pamphlet” written “in response to the report of the widgery tribunal… [i]n the white heat of anger”, as kinsella (dublin 1928) remarked. the poem satirically refers to the widgery tribunal and report (“a great insult”), which exonerated those responsible for the shootings53. the interesting point for our analysis is that kinsella makes the dead tell their story in court: according to the widgery report, the victim gerald donaghy was found with nail bombs in his pockets. however, in kinsella’s poem, donaghy resurrects to defend himself against this false accusation: “when a bullet stopped my breath/a doctor sought the cause of death. /he upped my shirt, undid my fly/twice he moved my limbs awry, / and notice nothing. by and by/ a soldier, with his sharper eye,/beheld the four elusive rockets/stuffed in my coat and trouser pockets./yes, they must be strict with us, /even in death so treacherous!”. although widgery blocked the testimony of many important bloody sunday witnesses, kinsella was calling “to the stand” the impossible witnesses, the dead, to reveal the hidden truth that widgery did not allow to come to light. 50 as manifestations of poetry on specific bloody sunday events we have several poems: the road to derry, by seamus heaney, written like a song after the funeral of the 13 dead people during bloody sunday but not published until 1997, in derry journal, in commemoration of 25th anniversary of that [available at https:// issuu.com/derryjournal/docs/savillereport/28]. heaney defended in his essay place and displacement that “poets did bear a “political responsibility” and that form was a powerful way of fulfilling this responsibility” (quoted in clark, 2012, p. 285). it is also derek mahon’s derry morning (1982); paul muldoon’s the year of the sloes, for ishi, a poem about bloody sunday but where muldoon talks about the last tribe of californian indians; seamus deane’s after derry, 30th january 1972, written in 1972 and published in 1988; gerry dorrity’s one sunday or i remember, by sharon meenan and killian mullan’s, among others. many of these poems are available at http://www.troublesarchive.com/artforms/poetry/piece/. a wider selection of poetry about bloody sunday must be found on campbell and herron, 2008. 51 available at https://cain.ulster.ac.uk/events/bsunday/kinsella.htm and http://www.troublesarchive.com/ artforms/poetry/piece/butchers-dozen-a-lesson-for-the-octave-of-widgery this poem was published firstly in 1972, in dublin. 52 this is the most accepted explanation about the origin of this expression, according to encyclopaedia britannica. available at https://www.britannica.com/story/why-is-a-bakers-dozen-13 53 quoted in clark, 2012, p. 379. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 93 regarding its content, the poem accuses lord justice widgery of not doing his job correctly by siding with the british army and then leaving the other party—the victims— without their chances to speak their truth. it is, therefore, the poet who helped them to do so. however, he delves into the improper adversarial approach of the inquiry. as for the form, by using a couplet, kinsella ironically criticizes british rationality and order. as clark (2012, p. 381) says, “kinsella’s use of couplet, whose high point came in the eighteenth century, mocks an enlightenment sensibility that cherished the values of freedom, tolerance and ordervirtues the british associate with the national character but which, kinsella implies, have undermined by imperial greed. thus the sense of order in the rhymes is ironic; kinsella satirizes the tribunal’s attempt to bring order to an event that in reality is too complex for simple verdicts”. similarly, the widgery tribunal and report served to frame the play the freedom of the city: a play in two acts, first performed in 1973 and written by brian friel (knockmoyle, northern ireland, 1929 greencastle, ireland, 2015)54. russell (2013, p. 101) believes that the work contains a “balanced critic of both brutal british imperialism and violent myth-imbued irish republicanism”. although friel had taken part in the civil rights march on 30th january in derry, he was feeling increasingly disappointed by irish nationalism55. inspired by bloody sunday and subsequent research, friel’s play tells a story that starts in 1970. it does not uniquely recreate or criticise the widgery tribunal, but also tries to show and reflect on how “brute facts” are transformed “into myth” through the experience of three civil rights protesters—lily, skinner and michael—that are eventually murdered during the march, as well as through “the extravagant distortions of those events conjured by various ‘witnesses’” (gleitman, 2001: 94). among these “witnesses” friel included the participants in a tribunal investigating the three marchers’ death. the writer wrote his play while the widgery tribunal was investigating the events and widgery himself can be recognised in the judge character, when he quotes real widgery’s words “a fact-finding exercise” to answer the question “did the security forces initiate the shooting or did they merely reply to it?” however, friel takes the findings beyond the tribunal of inquiry into a more comprehensive social investigation and discussion on recent irish history. 3.3. to set the truth: the justice campaign and other expressions of legal culture during the 1990s as mentioned above, one of the most important reasons for launching a second inquiry was the impulse generated by the justice campaign and investigations promoted by the very victims and their families in order to “set the truth” (campbell, 2013) and for the subsequent acquittal on terrorism charges. this initiative would serve to heal the “double injury” caused by the massacre and lies that the british authorities imposed on these events (herron and lynch 2007, p. 6). it also drew the world’s attention to what 54 carthaginians, by mcguiness, also deals with bloody sunday but not directly with the tribunal of inquiry. 55 according to richard rankin russell (2013: 101), his father has served on the derry corporation as a nationalist councillor. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 94 happened on 30th january in the streets of derry and the biased and unfair nature of the widgery tribunal and the resulting report56. this justice campaign is a moving display of popular legal culture claiming truth as the main content of justice57. at the same time, it provided a peaceful and non-sinn féin-influenced announcement of the fact that britain’s dominant legal culture had lost its credibility and political legitimacy. however, the justice campaign started and spread later, during the 1990s. until then, the annual events in derry (conway 2010) commemorating the bloody sunday victims can also be found as a form of popular legal culture. the main goal of these events was to maintain their memories alive. nicra organized the first memorial march in 1973, but they had lost social influence, so sinn féin organised the following commemorations until the end of the 1980s. however, many families of the victims were not happy with the presence of sinn féin and walked away from these commemorations. they also seemed to have got used to the injustice and trauma that come from being seen as families of terrorists (campbell 2013). these tributes can be understood as part of the spontaneous popular legal culture to which sinn féin gave a political nuance of counter-hegemonic reaction against british dominance in northern ireland. the justice campaign began when the families tried to take control of the bloody sunday commemorations. the first step in this direction was the bloody sunday initiative (bsi), encouraged by some victims’ families like tony doherty and political activists like robin perceval (born in liverpool) or, later, ewan mccann. mccann was in bogside and witnessed the massacre. the first meeting was organized with the help of a paper written by percival in collaboration with doherty, the bloody sunday trust (1989), addressing the ruling body of derry sinn féin, and declared its intention to draw national and international attention on bloody sunday “as a justice issue” (campbell 2013). in the end, they decided to name the new organization the bloody sunday initiative (bsi). the first decision of this new organization was to commission mccann to write a report on what happened during that fateful 30th january. mccann researched and collected families and friends’ interviews and memories. the book, entitled bloody sunday in derry: what really happened, was published in 1992, coinciding with the 20th anniversary. they also planned the 1990 anniversary as part of a weekend dedicated to human rights, but it turned out to be a terrible tragedy when the ira bombed british army patrols during the march, killing one protester. despite the shock, the bsi scheduled another weekend of events in 1991. the events were entitled “towards justice”. interestingly, they planned different activities such as debates on women and inequality, christians and oppression or censorship and a dramatization, as well as discussions “on knowing your rights when arrested or 56 including english people like labor party mp, jeremy corbyn, singers like peter gabriel, actors, among others. see campbell, 2013. 57 see once again the 4,29 minutes of marko hankin’s bloody sunday -a derry diary, available at http:// www.besomproductions.co.uk/sunday.html previously, the marchers have broken a big banner with the image of the front page of the widgery report. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 95 harassed on the streets”. a turning point in the process of engaging families in a justice campaign came when the release of the birmingham six was broadcasted on tv, the six of them brimming with joy in front of the central criminal court at old bailey (london). this event proved that justice campaigns could be successful. the context at that time illustrated a new pro-human rights era, especially in the uk, which contributed to bringing attention to the severe injustices committed against northern irish people and to the biased trials that resulted in charges of terrorism and many years of prison sentences. the bestknown cases were the guilford four and the birmingham six. their release provided a new impulse to revive the public attention concerning the bloody sunday events and raise the possibility that the victims and their families were not terrorists. the bloody sunday justice campaign (bsjc) was born in 1992 independent of the bsi, and had three specific demands: “the repudiation of widgery and the institution of a new inquiry; a formal acknowledgement of innocence of all the victims; and the prosecution of those responsible for the death and injuries”. members added: “we welcome into membership anyone who supports our objectives irrespective of religion or political persuasion” (campbell 2013). therefore, the justice campaign was not nationalistic, religious or politically biased but transversal, gathering all the people who were willing to share and work for those goals (campbell 2013). on the other hand, it showed an idea of justice as truth that finally included the demand for the entire acquittal of the informal charges of terrorism of the bloody sunday victims and their families, as a result of the widgery report. this is precisely what margo harkin filmed in her documentary bloody sunday – a derry diary. the increasing interest in what really happened on bloody sunday had led to other vital investigations that reflect the growing international legal culture of human rights and the connection between justice and truth. a case in point is the researches contained in the report submitted to the special rapporteur on summary and arbitrary executions by the british irish right watch (1994) and, especially, in walsh’ study (1997)58. a nongovernmental organization presented the former while a legal scholar presented the latter, but both pointed to the numerous biases in the widgery tribunal and report. among the situations that gave the tribunal a biased image in favour of the army, walsh and the british irish rights watch pointed out the composition of the tribunal: widgery was not only the lord chief justice of england but also a former officer of the british army. his military past might explain some of his statements (report of the tribunal 1972), such as: “though i hesitate to make a positive finding against a deceased man, i was much impressed by sergeant k’s evidence”. another example would be when he (widgery) explained why none of the soldiers got injured, even if they were cross-shooting: “the soldiers escaped injury by reasons of their superior field-craft and training”. 58 along those years, many books or reports were published containing the investigations that private individuals like journalists, legal scholars and other kinds of researcher, families of the victims and human rights associations made. among them: mccafferty (1989); mccann, shields and hannigang (1992); british iris right watch (1994); mcclean (1997); mullan (1997); walsh (1997, 2000), pringle and jacobson (2000); hayes and campbell (2005) (the book list is available at https://cain.ulster.ac.uk/events/bsunday/read.htm). legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 96 furthermore, the location where the sittings took place threw some doubts about its impartiality: the tribunal did not sit in derry but coleraine, a mostly protestant town, because they believed that the lives of the soldiers involved in bloody sunday were in danger. for this reason, the soldiers remained anonymous, which did not apply to the other eyewitnesses—catholics in a protestant town. many important eyewitnesses were also excluded, such as the members of the demonstration’s security committee. according to the terms of reference (which focus only on “the streets of londonderry on the afternoon of sunday 30 january”), there were many restrictions related to the time or space of the findings. for example, only the shootings in the streets where the riots took place were considered. however, according to lord widgery, the tribunal was “essentially a fact-finding exercise” on one particular question: “who fired first?” to which widgery responded: “i am entirely satisfied the first firing in the courtyard was directed at the soldiers”. it is also important to note that the tribunal oddly collected from the evidence the police files of the deceased and some wounded in order to ascertain whether they had been convicted or suspected of firearms offences or paramilitary activities. it was eventually discovered that the secretary of the tribunal privately influenced the substance and presentation of the tribunal’s report. 3.4. legal culture on the saville tribunal and report: legalism, colonialism and new legitimation for british law the large social reaction and mobilisation analysed above proved that widgery’s findings and final report were biased, preventing a better understanding of the bloody sunday facts and reasons59. twenty-six years later, in 1998, the british government admitted that the first tribunal of inquiry was not impartial, and set up a new tribunal while recognising the influence of the protest and campaign asking for justice as truth. it happened when tony blair was prime minister of the united kingdom. in his statement to the house of commons—establishing a new inquiry into bloody sunday on thursday 29th january 1998—mr blair said (1998)60: “bloody sunday was a tragic day for all concerned. we must all wish it had never happened. our concern now is simply to establish the truth, and close this painful chapter once and for all. madam speaker, members of the families of the victims (…), have conducted a long campaign to this end. i have heard some of their remarks over recent years and have been struck by their dignity. most do not want recrimination. they do not want revenge. but they do want the truth. i believe that it is in the interests of everyone that the truth is established, 59 like on many other occasions, this tribunal of inquiry was also accused of whitewashing. 60 available at https://www.publications.parliament.uk/pa/cm199798/cmhansrd/vo980129/debtext/80129-06. htm and at https://cain.ulster.ac.uk/events/bsunday/tb29198.htm. josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 97 and told. it is also the way forward to the necessary reconciliation which will be such an important part of building a secure future for the people of northern ireland. i ask all sides of the house to support our proposal for this inquiry”. on this occasion, three members formed the second tribunal, all of whom were judges: lord saville, an english law lord, and other two non-english judges from commonwealth countries: edward somers, from new zealand, and william hoyt, from canada61. the second tribunal of inquiry took 12 years to complete its report62, which was compiled in 10 volumes. compared to the widgery report, these new findings and report were clearly different in terms of extension and duration, contributing, thus, to highlighting again that the widgery tribunal and report were biased. the saville report concluded that the bloody sunday victims were not the first to shoot63, meaning they were not terrorists. nevertheless, blom-cooper (2019) insists on that the saville tribunal also opted for an investigation of the facts in the form of a courtroom, just like the widgery tribunal, therefore making the tribunal of inquiry drift from investigation to litigation, from a truth commission to a court. as saville was a lawyer, he could not prevent his lawful mindset from conducting the findings “lawyerly”, and the legalism of adversarial procedures in criminal or civil trials was always present64. this fact implies the continuity of legalism within lawyers themselves as part of the legal culture even when it comes to this kind of tribunals, and also explains the long duration of the inquiry. in any case, the saville inquiry also inspired cultural expressions in art, like bloody sunday. scenes from the saville report, a play written by mark norton-taylor (buckinghamshire, uk, 1944). although it mainly addresses the saville inquiry and its hearings, it also refers to the widgery inquiry at some points. the play was released in 2005, five years before the saville’s final report was published, and is considered a piece of verbatim theatre that follows the documentary theatre tradition. also, it is written using real words and opinions (lachman, 2007; monks, 2013). trials are a common topic in verbatim theatre, which puts the theatrical procedure of law on the stage of a real theatre. the work scenes from the saville report is part of a series of tribunal plays at the tricycle theater (london). in this case, norton-taylor 61 cain: events of bloody sunday-chronology. available on https://cain.ulster.ac.uk/events/bsunday/ chron.htm 62 available at http://webarchive.nationalarchives.gov.uk/20101103103930/http://report.bloody-sunday -inquiry.org/ [retrieved 17/03/2017] 63 saville report is available at https://www.gov.uk/government/publications/report-of-the-bloody-sunday -inquiry 64 “the elaborate preparation of written statements from potential witnesses, prepared by professional lawyers contracted out by the inquiry team; the oral examination of witnesses by counsel to the inquiry; crossexamination by counsel for interested parties (…); and constant legal submissions by counsel, resulting in applications to the courts for judicial review on two aspects of the inquiry –the anonymity of soldier witness and the venue for the oral evidence of former soldier” (blom-cooper, 2019, conclusions) legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 98 deals with a tribunal of inquiry. no matter how non-judiciary its nature was (especially when even its members used to not to care about it), in the end, it was just another way of showing law in action, besides getting it performed on stage. in norton-taylor’s scenes from the saville report, there is also a peculiar encounter between the theatrical dimensions of tribunals—even if they are not part of the judiciary— and their display on stage. it is the theatre of law, in its strictest sense, that reinforces the legal education of the audience, beyond legal texts, institutions, and schools. this piece was not the only verbatim work on the saville inquiry. mccann’s interviews to victims’ families who took part in those inquiries—collected in the book bloody sunday inquiry-the families speak out (2006)—inspired another documentary play entitled heroes with their hands in the air (2007), by brady. the play allows to revoice and re-witness events like bloody sunday and brings them back to life65. it seems that the saville report (2010) made the british government recognise that soldiers and officers did not do well, and apologised. it also ended with prime minister cameron publicly acknowledging the damage and humiliation that the british government had unnecessarily inflicted on the victims of the bloody sunday and their families. on the other hand, blair and cameron’s speeches gave the impression of a serious commitment to the rule of law and human rights in northern ireland, as a guarantee of justice, not only from a cultural perspective but also from its structural and substantive component. thus, it was considered very necessary to restore people’s confidence in the law. according to walsh (2000, pp. 283-284): “…not only did the law fail to protect 28 innocent civilians from being shot dead or wounded by soldiers, but it also appears that the judicial process was deployed to cover up the full extent of the culpability of the soldiers and their military and political masters. it cannot be assumed, however, that bloody sunday was totally unique… indeed at one level, bloody sunday might be considered as the most example of the rule of law being shamelessly prostituted in the service of the partisan security and narrow political interest of the state (…) in the light of the good friday peace agreement it would appear that effort are finally being made to lay the foundations for restoration of the rule of law and justice in northern ireland (…) the failure of law and justice encapsulated by bloody sunday is so fundamental in its nature and extend that it is seared into the collective consciousness of the nationalist community a fundamental distrust in the capacity of the law and judicial process to protect them against hostile force…”. 65 according to mccormick (2013/2014, p. 14), “the re-witnessing of events during heroes allows the exposition of the audience’s own memories that surround 30th january 1972, and the events that followed. these memories, together with new ones produced through the experience of the documentary theatre, cannot help but increase the audience’s involvement in the subject matter.” josefa-dolores ruiz-resa the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 99 taking into account the second inquiry and its results towards the truth, the recognition and the re-evaluation of the victims, their families and the catholic northern irish community seem to have taken a good step towards a peace process that remains66. nevertheless, the strong colonial and elitist british accent—british/english dominant culture—remaining in the peace process and the set-up of the saville inquiry has been criticised (bentley, 2016): it was once again chaired by an english lord justice, ignoring that the british government itself ordered the shootings. this fact eventually contaminated the neutrality and impartiality of the search for truth. the sincerity of the government’s apologies has also been questioned, not only cameron’s (2010) but also blair’s (1998) during the statement that established the second inquiry67. they both contributed to maintaining the archetypal colonial discourse because it is another sign of the fantasy or idealisation of british military chivalry and heroism. moreover, the colonialist aspect helps to maintain the peace process as a permanent, yet never-ending situation (a “process”, indeed) where the never-ending conflict between two nationalist religious communities can now be managed without violence. hence, the british government imposes the idea that northern ireland is divided into two irreconcilable ethnic-national identities between which it is the arbitrator that brings understanding and peace. northern ireland seems to be inhabited by irrational uncivilised sectarian people who would kill each other and need someone to guide them68. but this depiction seems to be more imaginary than real, and the british state cannot be the arbitrator or ruler of anything related to the conflict in northern ireland, as it so much a part of it. therefore, the second inquiry and the peace process are still suspected of bias, condescending and manipulating colonialism (bentley, 2016). conclusions the events and inquiries around bloody sunday allow concluding that truth is an idea closely linked to justice and law and that it has an important social dimension. likewise, justice as truth is strongly connected to judges’ functions insofar as they are considered to be more neutral and impartial than politicians. this conception is especially accepted in cases of serious human rights violations. in any case, such ideas are part of legalism, which is also very widespread within the popular and high legal culture. 66 the positive impact of the second tribunal of inquiry on the peace process has been analysed in aiken 2015. the author assesses to what extent this inquiry has permitted to advance important aspects related to truth and justice. in any event, as said at the beginning of the article, the bloody sunday tribunals of inquiry did not mean the renouncement to the criminal justice system in order to charge those who shot the victims. see walsh 2000, p. 284-312. 67 it was clear that the goal was not to charge anyone of murder or something like that, as mr blair himself stated (1998): “madam speaker, let me make clear that the aim of the inquiry is not to accuse individuals or institutions or invite fresh recriminations but to establish the truth about what happened on that day, so far as that can be achieved at 26 years' distance”. 68 the irrationality and less civilization within irish or scottish are part of racist and classist prejudices very rooted in english, who consider themselves civilized and morally superior and then legitimated to rule the others. they are present even in very well english defenders of human liberties like john stuart mill. however, mill showed expressly his worry about the iniquities that english inflicted to irish. see mill, 1891, pp. 300-302. legal culture on justice and truth: the tribunals of inquiry about bloody sunday the age of human rights journal, 15 (december 2020) pp. 73-104 issn: 2340-9592 doi: 10.17561/tahrj.v15.5777 100 legalism also makes truth commissions lean towards the judiciary and uses some essential principles of adversarial procedures when they are chaired by judges. however, judges sometimes fail to do their job, especially during widgery inquiries, which are suspected of being biased into justifying the british politics on northern ireland. even the saville inquiries did not escape from the suspicion of partiality, meaning a kind of undercover colonialism, which is not repressive now, and which accepts and regrets the terrible mistakes of the past. despite its limitations, the saville tribunal and report might never have happened without the varied social reactions against the widgery tribunal and report. these reactions expressed, remembered and claimed an indelible social idea or value about justice as truth that authorities cannot forget as long as they want the law to be considered legitimate and, subsequently, respected. in any case, legal culture does not only work as passive acceptance but also as formal or informal actions in the pursuit of justice, by using the legal means available and adapting them or forcing new ones. references aiken, n. t. 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(2000) bloody sunday and the rule of law in northern ireland. palgravemacmillan uk. williams, r. (1983, 1991) writing in society. london: verso. received: april 29th 2020 accepted: june 25th 2020 articles josefa-dolores ruiz-resa legal culture on justice and truth: the tribunals of inquiry about bloody sunday 1. introduction 2. conceptual frame 2.1. legal culture 2.2. truth as part of justice 2.3. the tribunal of inquiry as part of public inquiries 3. legal culture and bloody sunday tribunals of inquiry 3.1. context 3.2. trauma, anger and disappointment: legal culture on widgery inquiries during the 70s and 80s 3.3. to set the truth: the justice campaign and other expressions of legal culture during the 1990s 3.4. legal culture on the saville tribunal and report: legalism, colonialism and new legitimation for british law conclusions references disability’s rights to health: an obligation triggered by corona virus pandemic the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 363 disability’s rights to health: an obligation triggered by corona virus pandemic uche nnawulezi1; adeuti bosede remilekun2 abstract: this paper examines the right to health and disabilities rights in the wake of corona virus pandemic. the objective of this paper is to examine the applicable legal and policy frameworks on the rights of persons with disabilities and how it has adequately protected such persons in the face of corona virus pandemic. the study adopts analytical, qualitative approach and builds its argument on existing literatures. the paper recommends the existing laws and policies on disability's rights to health be enforced by relevant agencies, whilst article 25 of the convention on the rights of persons with disabilities 2006 should be made proactive. keywords: right to health, disabilities, rights, corona virus, pandemic. summary: 1. introduction. 2. results and analysis. 2.1. what is the right to health?. 2.1.1. disabilities rights. 2.1.2. corona virus pandemic. 2.1.3. application of rights to health to persons with disabilities. 2.2. covid-19 pandemic and the rights of persons with disabilities. 2.2.1. obligations on states and responsibilities of others towards the rights to health to persons with disabilities. 2.2.2. notable gap between the approaches to enforcement and the human rights standard in the convention on the rights of persons with disabilities. 2.3. application of the principle of non-discrimination to the right to health. 3. conclusion. 1. introduction the number of issues bothering on the rights to adequate health care services to persons with disabilities in the face of corona virus (covid-19) pandemic compels intellectual attention. it is of course, at the heart of this need that this paper evaluates the strength and weaknesses of the human rights issues and developments provoked by the novel pandemic. it sets out principles, standards and norms that states need to be considered when amending or drafting legislations relating to persons with disabilities. in spite of the great strides taken globally in educating people around the world about the health challenge of the novel corona virus (covid-19) pandemic, persons with disabilities still suffers a great neglect in terms of adequate health care services. given the vulnerability of persons with disabilities in nigeria, the nigerian president muhammadu buhari signed into law the discrimination against persons with disabilities (prohibition) act (discrimination against persons with disabilities prohibition act 20183) following a relentless advocacy by disabilities rights activists. it should be noted that despite the international attention being focused on disabilities rights, the normative bases, 1 dr. uche nnawulezi uche, faculty of law, alex ekwueme federal university, ndufu, alike, ikwo, ebonyi state nigeria (uchennawulezi@gmail.com and nnawulezi.uche@funai.edu.ng). 2 dr. adeuti bosede remilekun, ondo state law commission, nigeria (bosedelizabeth@gmail.com). 3 see discrimination against persons with disabilities (prohibition) act 2018. mailto:uchennawulezi@gmail.com mailto:nnawulezi.uche@funai.edu.ng mailto:bosedelizabeth%40gmail.com?subject= disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 364 content, and responsibilities associated with the practical implementation of the existing legislations still remain contested. however, this paper noted that about 15 percent of nigeria’s populations have disability (world health disability report 20114). in the light of the coronavirus outbreak (covid-19) pandemics, the erroneous conceptions on persons with disabilities and lack of strategic coherence in the implementation of the existing legislations, has at times, negatively impacted the practical implementation of protection mandates, with disabilities actors sometimes working at cross purposes. it should be emphasized that the outbreak of the novel coronavirus, otherwise known as covid-19 pandemic in nigeria has therefore led to the suspension or restriction of some of the otherwise guaranteed fundamental human rights of persons with disabilities in the constitution of the federal republic of nigeria (constitution of the federal republic of nigeria 19995). initially, there was apparent public acceptance of the restrictions of the covid-19 regulations, signified by a high degree of compliance. but the manner of enforcement of the restrictions in several areas of nigeria led to reports of human rights abuses. however, in enforcing this state of emergency, citizens’ rights as provided for in chapter four of the constitution of the federal republic of nigeria (chapter 4 of the constitution of the federal republic of nigeria, 19996) are restricted. indeed, the coronavirus pandemic reveals the deep-rooted level of marginalization and exclusion faced by persons with disabilities, many of which is occasioned by the gross violation of their rights to health (ohchr: covid-19 and the rights of persons with disabilities april 20207). in a similar manner, it is widely acknowledged that persons with disabilities tend to experience lower levels of health care due to not only to their primary and secondary health conditions and comorbidities, but also to the effects of social marginalization, poverty, denial of access to health and social services.8 it must be noted that the right to health is guaranteed under the african charter on human and peoples rights (african charter on human and peoples rights, 1979)9 as well as under chapter 2 of the constitution of the federal republic of nigeria10 (as amended), the national health insurance scheme act (national health insurance scheme 1999).11 however, the question that remains pertinent is whether these rights can be restricted without necessarily subjecting persons with disabilities to inhuman and degrading treatment? the obvious answer to the poser is in the affirmative. it must be noted that the restriction of the disabilities rights to health is of different variants (curry et al. 2001, pp. 60-79). 4 world health disability report 2011 <https://www.who.int2011> accessed 9 june 2020. 5 see the constitution of nigeria (1999). 6 see chapter 4 of the cfrn (1999). 7 see office of the high commissioner united nations human rights: covid-19 and the rights of persons with disabilities, 29 april 2020. 8 see world health organization international classification of functioning, disability and health, geneva, switzerland, 2001). 9 see african charter on human and peoples rights (1979). 10 chapter 2 of the cfrn (1999). 11 national health insurance scheme act (1999). 20207).in https://www.who.int2011 nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 365 there are persons who are ordinarily infected by the infectious disease and of course, there are equally persons who, though not infected, however, have their right to health restricted in the guise of “general good”. for these set of persons, the right to health is a constitutional right that should not be taken away lightly. by this very nature, the right to health of persons with disabilities cannot be achieved in isolation. it is closely linked to non-discrimination and other principles of individual autonomy, participation and social inclusion, respect for difference accessibility, as well as equality of opportunity and respect for the evolving capacities of children (article 3 crpd, 2006).12 however, persons with disabilities faces various challenges to the enjoyment of their rights to health. for instance, this paper noted that persons with physical disabilities often have difficulties accessing health care especially during this covid-19 pandemic: (campbell, 2009, pp. 5294-5300). also, persons with psychological disabilities have difficulty in accessing affordable treatment through the public health system as well as women with disabilities may not receive gender-sensitive health services13. therefore, and in accordance with the convention on the rights of persons with disabilities, states are required to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities, including their right to health, and to promote respect for their inherent dignity (article 1 crpd, 2006).14 it also corresponds with article 2515 regarding the “right to the enjoyment of the highest attainable standard of health without discrimination” for person with disabilities and further elaborates upon measures states should take to ensure that these rights are adequately protected (oliver, 1996, p. 11). accordingly, these measures include ensuring that persons with disabilities have access to and benefit from those medical and social services needed specifically because of their disabilities, including early identification and intervention, services designed to minimize and prevent further disabilities as well as orthopaedic and rehabilitation services, which enable them to become independent, and prevent further disabilities and support their social integration (committee reports on economic, social and cultural rights, general comments no. 5, 1994).16 from a scholarly perspective, it is generally acknowledged that while all pandemics are unique in their level of transmission and breadth of impact, the severity and recent policy attention to the covid-19 pandemic, which has affected nearly every country globally, offers an opportunity to revisit the literature linking pandemics to disabilities rights and right to health. however, evidence directly examining these linkages is scarce, and a broader body of related literature can, in the short term, provide an evidence-informed understanding of mechanisms linking pandemics to right to health and disabilities rights. the question remains as to how the evolution towards greater provision of adequate health care to persons with 12 article 3 of the convention on the rights of persons with disabilities (2006). 13 see covid-19 and the rights of persons with disabilities 2020. 14 article 1 convention on the rights of persons with disabilities (2006). 15 article 25 convention on the rights of persons with disabilities (2006). 16 see committee on economic, social and cultural rights, general comments no. 5 (1994) on people with disabilities, and articles 25(b) and 26 of the convention on the rights of persons with disabilities. disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 366 disabilities in the wake covid-19 pandemic will unfold. one possibility is a shift in interpretative emphasis from nature to severity of harm. however, it should be noted that disability studies has provided a theoretical knowledge from what we oftentimes termed a paradigm shift from the medical up to the social model of disability (degener & quinn 2017, pp. 17-19). in this sense, social model of disability consider disability as a social construct that discovers the problem of disability beyond the individual in discrimination policies. in another vein, when it comes to disability, the politics and understanding of social change are not just about the social model (ibid). for the purposes of clarity and emphasis, this article is divided into seven parts. the first part succinctly discusses the general notion of the paper. the second part embarks on clarification of concepts. the third part examines the application of the right to health to persons with disabilities. the fourth part considers some of the obligations on states with respect to right to health to persons with disabilities. the fifth part examines the relationship existing between human rights and disability. the sixth part highlights some of the notable gaps between the approaches to enforcement and the human rights standards in the convention on the rights of persons with disabilities. the seventh part examines the application of the principle of non-discrimination to the right to health. in the light of the above, the authors uses the doctrinal method to underscore the essence of the work and draws conclusion to the fact that more efforts need to be put in at the international, regional, and national levels, especially on the negative perception on the persons with disabilities around the globe. 2. results and analysis 2.1. what is the right to health? recent challenges and developments have made experts and scholars to examine the conceptual interpretation and meaning of the right to health in order to ascertain its inter-relatedness with other concepts. the right to health is an inclusive right. it includes a wide range of factors that can increase a healthy life.17 the right to health is the economic, social and cultural right to a universal minimum standard of health to which all individuals are entitled (icescr, 1966).18 however, the concept of the right to health has been enumerated in international agreements which include universal declaration of human rights (udhr, 1948),19 international covenant on economic, social and cultural rights (icescr, 1966),20 and the convention on the rights of persons with disabilities (crpd, 2006).21 also, it should be noted that the preamble of the 1946 world health 17 see: c.e.s.c. ltd. v subhash chandra bose and others (1992) i llj 475 (sc). 18 (the indian court recognized right to health as part of right to live). 18 see international covenant on economic, social and cultural rights (1966). 19 universal declaration of human rights (1948). 20 international convention on economic, social and cultural rights (1966). 21 convention on the rights o persons with disabilities (2006). nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 367 organization constitution defines health broadly as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity (constitution of the world health organization, 1948).22 according to the constitution of the world health organization, the right to health is defined as: the enjoyment of the highest attainable standard of health, and enumerates some principles of this right as healthy child development; equitable dissemination of medical knowledge and its benefits; and governmentprovided social measures to ensure adequate health. the right to health is a fundamental, and inalienable human rights that government cannot derogate from, but are rather obligated to protect and uphold (grad, 1948).23 the world health organization constitution, notably, marks the first formal demarcation of a right to health in international law. also, the right to health is relevant to all states; every state has ratified at least one international human rights treaty that recognizes the right to health directly or through rights to life and human dignity. this paper seeks to untangle and analyze the following questions on how would the world health organization’s constitutional recognition of the right to health inform the organization’s response to global health challenges? secondly, how can the world health organizational reform strengthen united nation system wide efforts to “mainstream” human rights in public health programming? in this context, this paper noted that when it comes to rights issues in the reform, it is not so much the design of the processes or structures that will make a difference, but it is to ensure that health as a human right is engrained into the mindset and attitudes of staff. additionally, the right to health is recognized, internally, in article 5(e) (iv) of the international convention on the elimination of all forms of racial discrimination (article 5(e)(iv) icerd, 1965),24 articles 11(1)(f) and 12 of the convention on the elimination of all forms of discrimination against women,25 and article 24 of the convention on the rights of the child.26 also, several regional human rights instruments as well recognize the right to health, such as the european social charter, 1961 as revised (article 11),27 the african charter on human and peoples rights28 and the additional protocol to the american convention on human rights in the area of economic, social and cultural rights.29 significantly, the right to health has been proclaimed by the commission on 22 see constitution of the world health organization 1948 <https://www.apps.who.int/gb/bd/pd/pdf/bd47/ en/constitution-en.pdf accessed 9 june 2020>. 23 f.p grad, the preamble of the constitution of the world health organization (1948). 24 article 5(e)(iv) of the international convention on the elimination of all forms of racial discrimination (1965). 25 article 11(1) (f) and 12 of the convention on the elimination of all forms of discrimination against women, (1979). 26 article 24 of the convention on the rights of the child, (1989) . 27 article 11 of the european social charter, (1961). 28 the african charter on human and people rights (1981). 29 additional protocol to the american convention on human rights article10 (1988). https://www.apps.who.int/gb/bd/pd/pdf/bd47/en/constitution-en.pdf https://www.apps.who.int/gb/bd/pd/pdf/bd47/en/constitution-en.pdf disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 368 human rights,30 as well as in the vienna declaration and programme of action of 1993 and other international instruments.31 however, certain gap exists in the drafting of article 12 of the covenant. in this sense, the third committee of the united nations general assembly did not adopt the definition of health contained in the preamble to the constitution of the world health organisation, which conceptualizes health as “a state of complete physical, mental and social well-being and not merely the absence of disease of infirmity”. however, the reference in article 12(1) of the convention to “the highest attainable standard of physical and mental health” is not confined to the right to health care.32 on the contrary, the drafting history and the express wording of article 12(2) acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can live a healthy life, and extends to the underlying determinants of health; such as food, portable water, adequate sanitation and healthy environment. furthermore, on the normative content of article 12, the right to health is not to be understood as a right to be healthy. the right to health contains both freedoms and entitlements. these apply to all persons, specifically; paragraph 34 of the committee's general comment no. 5 protects persons with disabilities in the context of the right to physical and mental health. in this regard, the committee stresses the need to ensure that not only the public health sector, but also private providers of health with the principle of nondiscrimination in relation to persons with disabilities. on a deeper level, there is a significant but little misconception about the right to health. first, the right to health is not the same as the right to be healthy. this common misconception is that the state has to guarantee good health, but however, good health is influenced by several factors that are outside the direct control of states, such as an individual’s biological make-up and socio-economic conditions. in this regard, the right to health refers to the right to the enjoyment of a variety of goods, facilities, services and conditions necessary for the realization of healthy life. this perspective is particularly significant for an understanding of the right to health as the right to the highest attainable standard of physical and mental health, rather than an unconditional right to be healthy. nevertheless, the rights apply to both the sick and healthy. secondly, the right to health is not only a programmatic goal to be attained in the long term. it would be pertinent to state that the fact that the right to health should be a tangible programmatic goal does not mean that no immediate obligations on states arise from it. but rather, states should make every possible effort, within available resources to realize the right to health and to take steps in the direction without delay. thirdly, it should be noted that a country’s difficult financial situation does not absolve it from having to take action to realize the right to health. in this context, it is often argued that states that cannot afford it are not obliged to take steps to realize this right or may delay their obligations indefinitely. nonetheless, no state can justify a failure to respect its obligations because of lack of resources. 30 see united nation resolution 1989/11. 31 united nation general assembly resolution 46/119/(1991). 32 common article 3 of the geneva convention for the protection of war victims (1949). nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 369 2.1.1. disabilities rights from a scholarly perspective, it is generally acknowledged that disabilities rights are basic human rights of persons with disabilities who are beneficiaries of development and are entitle to adequate protection at all times. according to african charter on human and peoples rights, disabilities rights is define as “the rights of people with disabilities having certain basic rights to special measures of protection accorded to the aged and disabled persons in keeping with their physical or moral needs.”33 in this context, disabilities rights will be better understood from the definition of the word “disability” as demonstrated by various institutions. however, the disability discrimination act defines a disabled person as someone who has “a physical or mental impairment” that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities. in a similar note, the world health organization (who) defines disabilities as an “umbrella term covering impairments, activity limitations and participation restrictions.” it is important to underline that disability is a complex phenomenon, reflecting an interaction between features of a person’s body and features of the society in which he or she lives. in a similar fashion, the united nations convention on the rights of persons with disabilities recognizes that disability is an evolving concept.34 it provides thus: persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. in contemporary usage, despite the complex and multi-dimensional approach to the definition of disability, its fluidity accommodates different understanding of disability or impairment, but by defining the concept “disability” as an interaction, makes it clear that disability is not an attribute of the person.35 in the light of the above definition of disability, it should be noted that the most important rights for a disable person is otherwise called disabilities rights. it is with this in mind that this paper maintained that disability is a human rights issue because people with disabilities experience in equalities, subjects of violations of human dignity and often times denied autonomy. however, this statement is thus connected to potential united nation obligations to ensure respect for persons with disabilities. also, while there is real scope for this argument on positive obligation, it is complicated and requires disentangling a range of legal issues which arises within the scope of human rights for the disabled persons. as a normative guide, a range of international documents have highlighted that disability is a human rights issue, including the world programme of actions concerning disable people,36 and the convention on the 33 article 18(4) african charter on human and peoples rights (1979). 34 article 1 of the convention on the rights of persons with disabilities (2006). 35 world health organization (who) understanding disability (2011), p. 5. 36 see world programme of action concerning disable people (1982). disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 370 rights of the child,37 and more importantly, the standard rules on the equalization of opportunities for people with disabilities.38 now, it might of course, be argued that human rights form a central plank on the new understanding and there is now widespread acceptance of the need for a human rights based approach to disabilities rights. it is worth noting however, that in the united nations context, in order to understand the interpretative approach on disabilities rights from the understanding that the convention on the rights of persons with disabilities applies human right to disability, in other to make general human rights specific to persons with disabilities or any form of ailments (megret, 2008, p. 515). in establishing what is particularly the actual definition of disabilities rights which may be seen as a natural development to fulfill obligations of international human rights law, of course, rests heavily on the united nations charter and regional instruments. of interest is the fact that this inherent rights of the united nations informed the ministerial declaration39 on july 2010 to recognize disability as a “crosscutting” issue essential for the attainment of the millennium development goals (mdg) emphasizes the need to ensure that women and girls with disabilities are not subject to multiple or aggravated forms of discrimination or be excluded from participation in the implementation of the millennium development goals.40 as part of the efforts to ensure adequate protection and recognition of disabilities rights, emphasis was laid by the united nations on women with disabilities.41 it should be noted that at the conceptual level article 7 of the convention on the rights of persons with disabilities (crpd)42 however, encourage states parties to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children on the basis of the above observation, all actions concerning children with disabilities, the best interest of the child shall be a primary considerations. also states parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.43 2.1.2. corona virus pandemic to understand the term “covid-19” as used in this paper, it is important to understand that the above term is commonly referred to as “coronavirus disease 2019” in other words, covid-19 is a new disease, and details of its spread are still under investigation.44 37 the convention on the rights of the child (1989). 38 the standard rules on the equalization of opportunities for people with disabilities (1993). 39 see the ministerial declaration of the united nations july, 2010. 40 see the ministerial declaration report on millennium development goals (mdg). 41 article 6(1) and (2) of the convention on the rights of persons with disabilities (2006). 42 article 7(1), (2) and (3) of the convention on the rights of persons with disabilities (2006). 43 article 3 of the convention on the rights of persons with disabilities (2006). 44 world health organization, “coronavirus very likely of animal origin, no sign of lab manipulation” reuters 21 april 2020 accessed 19 may 2020. nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 371 it must be emphasized that the ongoing corona virus pandemic is caused by severe acute respiratory syndrome coronavirus 2 (sarscov.2).45 the outbreak of this pandemic was first identified in wuhan, china, in december 2019.46 the first step taken by the world health organization (who) in this regard was to declare the outbreak a public health emergency of international concern on 39th january 2020, and a pandemic on 11th march.47 however, available research has shown that as at 17 may, 2020. more than 4.66 million case of covid-19 have been reported in more than 188 countries and territories, resulting in more than 312,000 deaths. more than 1-7 million people have recovered.48 the virus is primarily spread between people during close contact, most often via small droplets produced by coughing, sneezing and talking: (hopkins & kunar 2020). it is most contagious during the first three days after the onset of symptoms, although spread is possible before symptoms appear, and from people who do not show symptoms.49 of course, common symptoms include fever, cough, fatigue, shortness of breath, and loss of smell.50 also, complications may include pneumonia and acute respiratory distress syndrome.51 the time from exposure to onset of symptoms is typically around five days, but may range from two to fourteen days. although, recent studies have shown that patients from sixty years of age are at higher risk than children who may be less likely to become infected or, if so, may show milder symptoms or even asymptomatic infection. (valavan & meyer 2020, pp. 278-280). more importantly, there is no known vaccine or specific antiviral treatment. thus, the primary treatment is symptomatic and supportive therapy.52 as seen above, it is clear that the pandemic has caused severe global economic disruption,53 including the largest global recession which has led to the postponement or cancellation of sporting, religious, political and cultural events, (jade, march, 2020),54 widespread shortages exacerbated by panic buying; (watts & kommenda march, 2020), and decreased emissions of pollutants and greenhouse gases (unesco, covid-19 educational disruption and response march, 2020).55 the further implications of this 45 world health organization, “novel corona virus – china” accessed on may, 2020. 46 see “the world health organization director – general’s opening remarks at the media briefing on covid-19, 11 march, 2020” accessed may 19, 2020. 47 see “covid -19 dashboard by the centre for systems science and engineering at john hopkins university”, arcegis john hopkins university accessed 19 may, 2020. 48 see centres for disease central spreads”, 2 april 2020. accessed 19 may 2020. 49 united states centre for disease control and prevention, “corona virus disease 2019 (covid-19) symptoms” 20 march, 2020, accessed 19 may, 2020. 50 see united states centres for disease control and prevention, “interim clinical guidance for management of patients with confirmed coronavirus disease. (covid-19)” 4 april 2020 accessed 19 may, 2020. 51 united states centres for disease control and prevention, “symptoms of novel coronavirus (2019ncov)” 10 february 2020, accessed 10 may, 2020. 52 international momentary fund report on covid-19, “the great lockdown: worst economic downturn since the great depression” 2020. 53 “a list of what’s been canceled because of the coronavirus” the new york times acceded 19 may, 2020. 54 s.jade, “why there will soon be tons of toilet papers, and what food may be scarce, according to supply chain exports”. 18 march, 2020. 55 united nations educational, scientific, cultural organization (unesco), “covid-19 educatioinal disruption and response” 4 march 2020 accessed 19 may, 2020. disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 372 pandemic caused the closure of schools, universities, colleges, and churches either on a nationwide lockdown or local basis in 186 countries, affecting approximately 98.5 per cent of the world’s student population (clamp, march 2020).56 it is important to emphasize that the general notion about this virus has spread online; (tavenise & oppel new york times, march 2020). 2.1.3. application of rights to health to persons with disabilities over the past decade, an international consensus has developed around the need for a right-based approach to persons with disabilities. however, a human-rights based approach is a conceptual framework for dealing with a phenomenon such as persons with disabilities that is normatively based on international human rights standards and that is operationally directed to promoting and protecting human rights. a key point to note is that, it is only in recent years that persons with disabilities have brought about a paradigm shift in attitudes towards them. this has seen a move away from regarding them as “objects” of charity and medical interventions towards their empowerment as “subjects” of human rights, including but not limited to the right to health. similar concerns have already been expressed on the fact that the right to health of persons with disabilities cannot be achieved in isolation, rather it is closely linked to non-discrimination and other principles of individual autonomy, participation and social inclusion, respect for difference, accessibility, as well as equality of opportunity and respect for the evolving capacities of children (article 1 crpd, 2006).57 given the increasing importance of the disability rights to health, it is not surprising that persons with disabilities face various challenges to the enjoyment of their right to health. for instance, this paper noted that persons with physical disabilities often have difficulties accessing healthcare, especially during this covid-19 pandemic when there are lockdowns and restriction of movement.58 also persons with psychological disabilities may not also have access to affordable treatment through the public health systems. by way of emphasis, it should be pointed out that medical practitioners sometimes treat persons with disabilities as objects of treatment rather than rights-holders and do not always seek their free and informed consent when it comes to treatments. however, this situation is only degrading, it is a violation of human rights under the convention on the rights of persons with disabilities and unethical conduct on the part of the medical professional. according to koch, disability comprised of a notion of and or other status. (koch 2009, p.73). against this background, it is true that persons with disabilities are also disproportionately susceptible to violence and abuse. nonetheless, while it is true that person with disabilities are victims of physical, sexual, psychological and emotional abuse, neglect and financial exploitation, women with disabilities are particularly exposed to forced sterilization and sexual violence. it must however be borne in mind that violence 56 r. clamp, “coronovirus and the black death: spread of misinformation and xenophia shows we haven’t learned from our past” 5 march, 2020. 57 article 1 of the convention on the rights of persons with disabilities (2006). 58 see united nations human rights: covid-19 and the rights of persons with disabilities (2020). nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 373 against persons with disabilities often occurs in a context of systemic discrimination against them in which there is an imbalance of power. on the other hand, the conceptualization of disability as object of charity and medical interventions towards their empowerment, of course, informed the erroneous believe that they should be treated without their free and informed consent, a clear and serious violation of their right to health. oftentimes, persons with disability face the vulnerability of being locked up in institutions of charity simply on the basis of disability, which can have serious psychological repercussions and overtly impede their enjoyment of the right to health and other rights. however, the implementation of the covid-19 restriction order has let much to be desired as it relates to the dignity of persons with disabilities. all over nigeria, instances abound where state actors have subjected persons with disabilities and other citizens to dehumanizing treatments either by flogging them or engaging in corporal punishments all in the guise of implementing the present lock-down. it is noteworthy however that states are required to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms of persons with disabilities including their right to health, and as well to promote respect for their inherent dignity.59 in addition, this newly adopted convention recognizes the “right to the enjoyment of the highest attainable standard of health without discrimination” for persons with disabilities and further elaborates upon measures states should take to ensure this right.60 consequently, by virtue of the above, article 25 of the convention outlines measures which include ensuring that persons with disabilities have access to and benefit from those medical and social services needed specifically because of their disabilities, including early identification and intervention, services designed to minimize and prevent further disabilities as well as orthopaedic and rehabilitation services, which enable them to become independent, present further disabilities and support their social integration.61 similarly, the convention on the rights of the child62 recognizes the right of children with disabilities to special care and to effective access to health-care and rehabilitation services. 2.2. covid-19 pandemic and the rights of persons with disabilities from the preceding sections of this paper, it must be acknowledged that the significance of the right to health to persons with disabilities in the wake of covid-19 pandemic cannot be over emphasized. but it must be made succinctly clear, that while covid-19 pandemic threatens all members of the society, persons with disabilities are disproportionately impacted due to attitudinal, environmental and institutional barriers that are reproduced in the covid-19 response.63 understandably therefore, during this 59 article 25 of the convention on the rights of persons with disabilities (2006). 60 see committee on economic, social and cultural rights, general comment no. 5 (1994) – on peoples with disabilities. articles 25(b) and 26 of the convention on the rights of persons with disabilities (2006). 61 article 33 of the convention on the rights of the child (1989). 62 united nations human rights, “covid-19 and the rights of persons with disabilities 29 april, 2020. 63 see etimates from united nations department of economic and social affairs. <https://www.un.org/ development/desa/disabilities/disability-and-angeing.html> accessed 10 june 2020. https://www.un.org/development/desa/disabilities/disability-and-angeing.html https://www.un.org/development/desa/disabilities/disability-and-angeing.html disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 374 covid-19 pandemic, persons with disabilities who are dependent on support for their daily living may find themselves isolated and unable to survive during lockdown measures, while those living in institutions are particularly vulnerable, as evidenced by the over whelming numbers of death in residential care homes and psychiatric facilities: (nanni, 2006 pp. 372-9). specifically, and in the context of the covid-19 pandemic, persons with disabilities may have increased risk for exposure, complications, and death such as: (i) persons with disabilities are disproportionately represented among older populations who are known to be at increased risk in the covid-19 pandemic. however, it is estimated that more than 46 per cent of the world’s population of people over age sixty have disabilities,64 (ii) children and adults with disabilities may have underlying health conditions that increase their risk of serious complications from covid-19, and. (iii) persons with disabilities are disproportionately represented among the world’s people living in poverty.65 the impacts of covid-19 are likely to be worse for people in lower socio-economic groups; (ibid, 2009 pp. 5294-5300). it is however necessary to emphasize that while facing increased risk, men, women, boys and girls with disabilities also face obstacles to accessing prevention and response measure.66 also, quarantine, health facilities and transport established as part of the covid-19 response may fail to carter for the requirements of children and adults with disabilities, including with regards to accessibility. from the foregoing, it is essential to examine the following questions as it relates to the covid-19 pandemic and the rights of persons with disabilities. firstly, what is the impact of covid-19 on the right to health of persons with disabilities? it should be noted that despite being a population that is particularly at risk to covid-19 persons with disabilities face even greater inequalities in accessing health care during the pandemic due to inaccessible health information and environments, as well as selective medical guidelines and protocols that may magnify the discrimination persons with disabilities face in healthcare provision. these protocols at times reveal medical bias against persons with disabilities concerning their quality of life and social value. in the light of the above question, this paper however advocate that states and other stakeholders should repeal provisions that prevent access to treatment based on disability, level of support needs, quality of life assessments or any other form of medical bias against persons with disabilities, including within guidelines for allocation of scarce resources such as ventilators or access to intensive care. also a continued supply and access to medicines, persons with disabilities during the pandemic is a good response. similarly, as a contant practice, the bioethics committee of the san marino republic has produced covid-19 guidance on triage, which prohibits discrimination on the basis of disability. 64 see <https://social.in.org/publication/un-flayship-report-disability-finalpdf> accessed 10 june 2020. 65 see, <https:// www.weforum.org/agenda/2020/03/coronavirus-pandemic-inequality-amnd-workers> accessed 10 june 2020. 66 see <https://www.sanita.sm/on-line> accessed 10 june 2020. https://social.in.org/publication/un-flayship-report-disability-finalpdf www.weforum.org/agenda/2020/03/coronavirus-pandemic-inequality-amnd-workers https://www.sanita.sm/on-line nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 375 it maintained that: the only parameter of choice therefore, is the correct application of triage, respecting every human life, based on the criteria of clinical appropriateness and proportionality of the treatments. any other selection criteria, such as age, gender, social or ethnic affiliation, disability, is unethically unacceptable, as it would implement a ranking of lives only apparently more or less worthy of being lived, constituting an unacceptable violation of human rights.67 in the same vein, the office for civil rights at the united states department of health and human services also issued a bulletin to ensure that authorities prohibit discrimination on the basis of disability, stating that: persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative worth based on the presence or absence of disabilities or age.68 and further, this bulletin also provides guidance to authorities on ensuring outreach and accessibility of information and communications to persons with disabilities for opportunity to benefit from emergency response efforts, including making reasonable accommodations to help ensure that the emergency response is successful and minimizes stigmatization. another focus on promising practices, more specifically, this paper also noted that in canada, the covid-19 disability advisory group was established with the participation of persons with disabilities and their representative organizations to advise the government on disability specific issues, challenges and systemic gaps and strategies, measures and steps to be taken.69 secondly, having examined the impact of covid-19 on the right to health of persons with disabilities, this paper will look at the second question which is: what is the impact of covid-19 on persons with disabilities living in institutions? with regard to above question, it is indeed frequently advocated that covid-19 is having a disproportionate impact in psychiatric institutions, social care institutions such as the orphanages, day-care centres, rehabilitation centres and institutions for older persons, resulting in high rates of infection and death. however, this paper noted that the number of deaths in care homes represented from 42 per cent to 57 per cent of all covid-19 deaths in those countries: (comas-herrera et al. april, 2020 p. 5). 67 see <https://www.sanita.sm/on-line/home/bioetical/commitato-sammerinesedi-biotica/documents-in-english /document2116023.html> accessed 10 june 2020. 68 see office for civil rights united states department of health and human services <https://www.hhs. gov/sites/default/files/ocr-bulletin-3-28-20pdf> accessed 10 june 2020 69 see the canadian covid-19 disability advisory group <https://www.canada-ca/en/employment.social. development/news/2020/04/backgroundercovid-19-disability-adviosory-group.html > accessed 10 june 2020. https://www.sanita.sm/on-line/home/bioetical/commitato-sammerinesedi-biotica/documents-in-english/document2116023.html https://www.sanita.sm/on-line/home/bioetical/commitato-sammerinesedi-biotica/documents-in-english/document2116023.html https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20pdf https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20pdf https://www.canada-ca/en/employment.social.development/news/2020/04/backgrounder https://www.canada-ca/en/employment.social.development/news/2020/04/backgrounder disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 376 also, institutionalized persons with disabilities faced heightened risk of contracting covid-19 due to underlying health conditions, difficulty in enforcing social distancing amongst residents and staff, and abandonment by staff. this would suggest that persons with disabilities living in institutions also face greater risks of human rights violations, such as neglect, restraint, isolation and violence. what emerges from the above scenario, however, is that states and stakeholders during the emergency period should ensure continued respect of the rights of persons living in institutions, including freedom from exploitation, violence and abuse, non-discrimination, the right to free and informed consent, and access to justice.70 thirdly, there is thus a critical need to examine the impact of covid-19 on the right of persons with disabilities to live in the community. all the same, persons with disabilities faces specific barriers in carrying out their daily lives in the community due to covid-19 response measures in particular, stay at home restrictions that do not consider their needs creates disruptions and new risks to their autonomy, health and lives. it is in this context that some persons with disabilities, such as persons with psychosocial disabilities and autistic persons might not be able to cope with strict confinement at home. also, public information on covid-19 measures is not systematically communicated nor disseminated in accessible formats and means to reach all persons with disabilities. given the impact of covid-19 on the right of persons with disabilities in the communities, as a promising practices, the new zealand ministry of health has a section of its website dedicated to providing information in accessible formats, including sign language and easy to read.71 notably, however, the government of mexico adopted a similar practice.72 also, argentina,73 colombia,74 panama,75 the united kingdom of great britain76 have all introduced similar measures. notwithstanding these various promising practices to ensure that information on covid-19 and related measures is accessible to persons with disabilities through sign language interpretation, captioning, and easy to read formats, and among others. this raises concerns on the implementation when viewed through the lens of international human rights standards (palmer, 2011, pp. 210-218). 70 see the statement by regional and international organization of people with psychosocial disabilities with recommendations in the context of covid-19 pandemic. <http://dkmedia.s3-amazonaws.com/aa/ ag/chrusp-biz/downloads/357738/covid-19-and--persons-with-psychosocial-disabilities-fianalversion. pdf> accessed 10 june 2020. 71 care (2020) gender implications of covid-19 outbreaks in development and humanitarian settings <https://www.care-international.org/files/files/genderedimplicationsof covid-19-executivesummary.pdf> accessed 10 june 2020. 72 see new zealand ministry of health <https://www.health.govt.nz/our-work/diseases-and-conditions/ covid-19-novel-coronavirus/covid-19-novel-coronavirus/covid-19-novel-coronavirus-resourcesnew-zealand-sign-language> accessed 10 june 2020. 73 see the government of mexico <https://www.coronavirus-gob.mx> accessed 10 june 20 74 article 6(5) argentina decree 297/2020 75 see colombia <https://www.minsalud-gov-co/sites/rid/lists/bibliotecadigital/ride/de/ps/asif13personas-con-discapacidedcovid-19-pdf> accessed 10 june 2020 76 see senadis, panama covid-19, 33. (2020) http://dkmedia.s3-amazonaws.com/aa/ag/chrusp-biz/downloads/357738 http://dkmedia.s3-amazonaws.com/aa/ag/chrusp-biz/downloads/357738 https://www.care-international.org/files/files/genderedimplicationsof https://www.health.govt.nz/our-work/diseases-and-conditions https://www.coronavirus-gob.mx https://www.minsalud-gov-co/sites/rid/lists/bibliotecadigital/ride/de/ps/asif13-personas-con-discapacided https://www.minsalud-gov-co/sites/rid/lists/bibliotecadigital/ride/de/ps/asif13-personas-con-discapacided nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 377 fourthly, several human rights defenders and activities oftentimes interrogates the impact of covid-19 on the right of persons with disabilities as well as the right to health and protection from violence. it is important to note that persons with disabilities are at higher risk of violence, particularly when isolated. in fact, women and girls with disabilities not only faces higher risks of violence compared to other women, they are at higher rates gender, sexual, intimate partner and domestic violence,77 than with men with disabilities.78 while information on disability and gender based violence in the context of covid-19 is not currently available, experience shows that in similar circumstances, people with disabilities are particularly at risk.79 fifthly, obviously, within the framework, the question on the impact of covid-19 on the specific population groups in which persons with disabilities are over represented (persons with disabilities and those without adequate housing of course, is a major concern of this paper. be that as it may, it is widely agreed that persons with disabilities are over represent among the prison population (pearce, march 2020),80 in particular persons with psychosocial disabilities and persons with intellectual disabilities. a further issue that has been raised in respect of prisoners with disabilities is that they are at heightened risk of infection due to the high-risk of infection in crowded and unhygienic conditions where physical distancing is not possible. this paper has argued that the current state of prisoners with disabilities has raised different challenges not only by persons with disabilities in person and pre-trial detention within the criminal justice and penitentiary systems, but also those who are currently under any form of administrative or other detention, including migrants with disabilities in immigration detention. indeed, it is also worth mentioning that some countries like the united kingdom and northern ireland have some promising practices wherein prisoners with less than two months to complete their sentence are being released.81 also the united states of america have released or in the process of releasing prisoners.82 in colombia, persons with disabilities who have functional restrictions that prevent them from autonomously implementing protection measures are included among the beneficiaries of early release.83 further, in argentina, the supreme court identified persons with disabilities as beneficiaries 77 see united kingdom of great britain and northern ireland, coronavirus outbreak faqs: what you can and cannot do, section 15, (2020) 78 see world health organisation, covid-19 and violence against women what the health sector system can do 2020 <https://apps.who.int/iris/bitstream/handle/10665/331699/who-srh-20.04-eng.pdf> accessed 11 june 2020 79 undesa, disability and development report, pp. 7,16,113-115,249-252 <https://social.un.org/ publications/un flagship-report-disabilities-final.pdf> accessed 11 june 2020 80 e. pearce, disability considerations in gender based violence programming during covid-19 pandemic <https://www.gbvaor.net/sites/defaault/files/2020-03/disabilitypdf> accessed 11 june 2020 81 see guidance: covid-19 and prisons, 29 april 2020 <https://www.gov.uk/guidance/coronavirus-covid19-and-prisons> accessed 11 june 2020, 82 guidance: covid-19 and prisons 29 april 2020 <https://www.prisonpolicy/org/virus/virusresponsehtml> accessed 11 june 2020 83 see colombia, decreto legislativo 546, 14 april 2020 <https://daprepresidencia.gov.co/normativa/ decreto2020pdf> accessed 11 june 2020. https://apps.who.int/iris/bitstream/handle/10665/331699/who-srh-20.04-eng.pdf https://social.un.org/publications/un https://social.un.org/publications/un https://www.gbvaor.net/sites/defaault/files/2020-03/disabilitypdf https://www.gov.uk/guidance/coronavirus-covid-19-and-prisons https://www.gov.uk/guidance/coronavirus-covid-19-and-prisons https://www.prisonpolicy/org/virus/virusresponsehtml https://daprepresidencia.gov.co/normativa/decreto2020pdf https://daprepresidencia.gov.co/normativa/decreto2020pdf disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 378 of prison release efforts.84 given the rapid pace of these release and the pressing needs for other countries in africa, europe, america and asia to embrace this changing trends, the national justice council of brazil issued a recommendation to review, reassess and release prisoners with disabilities including those in the juvenile criminal system.85 it is in light of the above development that this paper propose that: (i) states parties and other stakeholders should implement preventive measures within prisons to reduce infection risks including by identifying prisoners with disabilities and ensuring their access to support food, water and sanitation, applying isolation and physical distancing measures, requiring use of protective equipment, and improving hygiene conditions, and (ii) states parties and other stakeholders should reduce the prison population by releasing at-risk groups of prisoners, including persons with disabilities, applying early release and probation or shortening or commuting sentences and reducing the use of pre-trial detention and prompt ensure provision of support in the community through family and/or informal networks and funding support services by public and private service providers. 2.2.1 obligations on states and responsibilities of others towards the rights to health to persons with disabilities. as a crucial concern of this paper, it is becoming increasingly clear that states have the primary obligation to protect and promote human rights and right to health of persons with disabilities. however, each state party to the present covenant86 undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures. more specifically, this paper noted that article 2(1) of the international covenant on economic, social and cultural rights under lines that states have the obligation to progressively achieve the full realization of the rights under the covenant. however, this is an implicit recognition that states have resource constraints and that it is necessarily takes time to implement the treaty provisions. consequently, some components of the rights protected under the covenant, including the right to health are deemed subject to progressive realization. while the role of international assistance and cooperation is reflected in other instruments as well, such as the charter of the united nations, the universal declaration of human rights and the convention on the rights of the child,87 that arguably, does not amount to a substitute for domestic obligations, but however, comes into play in particular if a state is unable to give effect to economic, social and cultural rights on its own, and/or 84 guidance: covid-19 and prisons argentina, national supreme court of justice, acordada 10/2020 and complementary regulation, federal court of criminal appeal, acordada 9/2020 <https://www.cnpt.gol.ar/ wp-content/uploads/2020/04/acordada-9-20cfcp.pdf> accessed 11 june 2020 85 guidance: covid-19 and prisons brazil, national justice council, recommendation 62, 17 march 2020. <https://www.cnj.jus.br/wp-content/uploads/2020/03/62pdf> accessed 11 june 2020. 86 article 2(1) and (2) of the international covenant on economic, social and cultural rights (1966) 87 see general comment 27(67) (1999) para. 4 https://www.cnpt.gol.ar/wp-content/uploads/2020/04/acordada-9-20cfcp.pdf https://www.cnpt.gol.ar/wp-content/uploads/2020/04/acordada-9-20cfcp.pdf https://www.cnj.jus.br/wp-content/uploads/2020/03/62pdf nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 379 requires assistance from other states to do so. with regards to the above, states should thus have an active programme of international assistance to enable other states to meet their obligations in relation to the right to health.88 it should be pointed out that the most feasible measures to implement the right to health will vary from state to state, international treaties do not offer set prescriptions of particular relevance is the provisions of article 2(1) of the international convention on economic, social and cultural rights which provides that the full realization of the rights contained in the treaty must be achieved through “all appropriate means, including particularly the adoption of legislative measures.” however, a state needs a device to monitor and measure these variable dimensions of the right to health this right must be exercised in accordance with international law. moreso, the international covenant on civil and political rights (iccpr) unlike other treaties such as convention on the elimination of discrimination against women (cedaw) or the child rights convention (crc) does not focus on specific population group. drawing from the statement in the preamble of the covenant that “recognition of the inherent dignity and of the equal and individual rights of all members of the human family is the foundation of freedom, justice, and peace in the world” can certainly be interpreted to include persons with disabilities. (quinn etal 2002, p. 64). with respect to the right to health, it is important to stress that the committee on economic, social and cultural rights has stressed that states have a core minimum obligation to ensure the satisfaction of minimum essential levels of each of the rights under the covenant. 2.2.2 notable gap between the approaches to enforcement and the human rights standard in the convention on the rights of persons with disabilities from a legal perspective, states parties under the convention requires to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities (stein & lord, 2009 p. 32).89 however, this requires state parties to take active steps to alter customs and practices that are based upon outdated paradigms which prevent survivors with disabilities from exercising their rights to be free from violence at home. this paper noted that prejudice against survivors with disabilities remains a significant barrier to their capacity to obtain protection and justice. it is important to understand that despite the existence of the convention on the rights of persons with disabilities and public policy models that perceives persons with disabilities as citizens entitled to exercise all their human rights, while in some contexts, there is an extreme reaction to persons with disabilities with hatred and acrimony. it is important to note that the core human rights treaties and softlaw instruments appears insufficient in addressing the particular need of person's with disabilities. however, the convention on the rights of persons with disabilities has been criticized as been “superfluous” and parallel to charges leveled against the convention on the elimination of discrimination against women. 88 article 4(1)(b) of the convention on persons with disabilities (2006) 89 m.a. stein & j.e. lord “future prospects for the united nations convention on the rights of persons with disabilities” in the united nations convention on the rights of persons with disabilities, 2009, p. 32. disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 380 this stems from the fact that law influences ones behavior and also alter a wide social perceptions or practices (ibid). approaching the issue from the medical angle, this paper noted that under the medical model, medical professionals construct themselves as the gatekeepers of what constitutes a normal ability and when a person’s ability means they are characterized as abnormal (article 2(2) icescr, 1966).90 this brings to fore that if a person’s ability does not meet the medically constructed standard of normality, then under this model, the person is regarded as defective and often excluded from mainstream culture (article 2(1) crc, 1989)91 for mainstream humanitarian approaches, under the medical model, a person with disability is constructed as a patient that has reduced capacity and may require their affairs be managed on their behalf. in this sense, it is submitted that the medical model, and its problematising of disability, continues to influence public policy debates in this twenty – first century, which has led to the wrong perception of persons with disabilities being cast as passive recipients of care and support. 2.3. application of the principle of non-discrimination to the right to health obviously, it is argued that the principle of non-discrimination applies to the right to health of persons with disabilities. before examining the pros and cons of the application of the principle of non-discrimination to the right to health, it is important to underscore that state of discrimination vis-à-vis the application of this principle in the protection of the rights of the persons with disabilities. however, the term discrimination means: any distinction, exclusion or restriction made on the basis of various grounds which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedom. it is argued that discrimination provides a link to the marginalization of specific population groups and is generally at the root of fundamental structural inequalities in society. however, the impact of the above makes these groups more vulnerable to poverty and ill-health; traditionally, discriminated and marginalized groups such as persons with disabilities often bear a disproportionate share of health problems. also, it is an acknowledged fact that non-discrimination and equality are fundamental rights principles and critical components of the right to health. thus, in the area of legislative competence, the international covenant on economic, social and cultural rights,92 and the convention on the rights of the child,93 appears to have identify the following non-exhaustive grounds of discrimination: race, colour, sex, language, religion, 90 article 2(2) of the international covenant on economic, social and cultural rights (1966) 91 article 2(1) of the convention on the rights of the child (1989) 92 article 5 of the convention on the elimination of all forms of racial discrimination (1965) 93 see general comment of the committee on economic, social and cultural rights no. 14 (1916) para. 18 nnawulezi uche; adeuti bosede remilekun the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 381 political, national or social origin, property, disability, birth or other status according to the committee on economic, social and cultural rights, other status may include health status (e.g. hiv/aids) or sexual orientation. it is important to note also that the international convention on the elimination of all forms of racial discrimination94 also stresses that states must prohibit and eliminate racial discrimination and guarantee the right of everyone to public health and medical care. generally, nondiscrimination and equality further imply that states must recognize and provide for the differences and specific needs of groups that generally face particular health challenges, such as higher mortality rates or vulnerability to specific diseases. also the obligation to ensure nondiscrimination requires specific health standards to be applied to particular population groups, such as women, children or persons with disabilities. in the light of the foregoing, the committee on economic, social and cultural rights further provides that there is no justification for the lack of protection of vulnerable members of society from health-related discrimination, be it in law or fact. it also indicates that even if times are hard, vulnerable members of society must be protected, especially through the adoption of relatively low-cost targeted programmes.95 3. conclusion this paper has addressed the issue of the impact of inadequate healthcare services on persons with disabilities in the wake of corona virus (covid-19) pandemic. therefore considering the devastating effects of corona virus pandemic against persons with disabilities, the health rights of persons with disabilities would be seen to deserve serious attention towards adequate provisions of health care services. efforts should be made by government and non-governmental agencies to ensure that persons with disabilities are adequately catered for as well as live in stable and responsible homes. no doubt, disabilities rights to health are absolutely guaranteed under both international law and international human rights laws. however, the international covenant on economic, social and cultural rights, widely considered as the central instrument of protection for the right to health, recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. also, other human rights instruments such as the international convention on the elimination of all forms of racial discrimination,96 the convention on the elimination of all forms of discrimination against women,97 the convention on the rights of the child,98 the international convention on the protection of 94 article 5(e)(iv) of the international convention on the elimination of all forms of racial discrimination (1965). 95 articles 11(i)(f), 12 and 14(2)(b) of the convention on the elimination of all forms of discrimination against women (1979) 96 article 24 of the convention on the rights of the child (1989) 97 articles 28, 43(e) and 4(c) of the protection of the rights of all migrants workers and members of their families (1990) 98 article 25 of the convention on the rights of persons with disabilities (2006) disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 382 the rights of all migrants workers and members of their families,99 and the convention on the rights of persons with disabilities.100 moreso, the right to health is also recognized in several regional instruments such as the african charter on human and peoples rights (1981), the additional protocol to the american convention on human rights in the area of economic, social and cultural rights, known as the protocol of san salvador (1988), the european social charter (1961) and the european convention for the promotion of human rights and fundamental freedoms (1950) all contained provisions related to health, such as the right to life, the prohibition on torture and other cruel, inhuman and degrading treatment, and the right to family and private life. despite these legal achievements, the reality on ground is appalling, persons with disabilities and those living in emergency shelters and informal settlements are particularly vulnerable to contracting covid-19 on account of overcrowded living conditions, lack of access to water and sanitation, and due to their pre-existing health conditions. in other to fill the gap between the law and the reality, there is an urgent need to strengthen the implementation of the international convention on the rights of persons with disabilities and prosecution of violators of this rights both at the domestic and international levels. it is based on the above wholistic analysis that the following recommendations are made: 1) actions need to be taken to ensure that people with disability can always access the health-care services, water and sanitation services and public health information that may be useful to them during the covid-19 outbreak. 2) persons with disabilities and their household should adhere strictly to the world health organization guidance on basic protection measures during the covid-19 outbreak. 3) all health-care workers should ensure that covid-19 health care is accessible especially ensuring that all clinics providing testing and services related to covid-19 are completely accessible. 4) there should be immediate action to reduce potential exposure to covid-19 in institutional settings by identifying those mostly at risk and work with them, their families and staff to implement infection control measures. 5) basic protection measures should be adopted by the general public where possible, implement flexible working arrangements that will allow people with disabilities to tele-work. 6) physical distancing, self-isolation and other emergency measures need to take into account the needs of persons with disabilities who rely on support networks essential for their survival. 99 articles 1(3), 55 and 56 of the charter of the united nations 1945, articles 22 and 28 of the universal declaration of human rights, (1948) and articles 4 and 24 of the convention on the rights of the child (1989) 100 general comment no. 3 committee on economic, social and cultural rights on the nature of states parties obligation and general comment no. 14 (1990) paras 38 – 42. 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[accessed 19 may, 2020]. koch, i.e (2009), "from invisibility to indivisibility", in the united nations convention on the rights of persons with disabilities, 2009, pg. 73. megret, f (2008),"the disabilities convention: human rights of person's with disabilities or disable rights", human rights quarterly journal, 30: 515, https:// doi.org/10.1353/hrq.0.0000. nanni, a (2006), "sexual assault patterns among women with and without disabilities, seeking survivor services", women's health issues, 16(6): 372-9, https://doi. org/10.1016/j.whi.2006.10.001. oliver, m. 1996, understanding disability: from theory to practice, palgrave macmillan; p.11. palmer, m (2011), "disability and poverty: a conceptual review", journal of disability policy studies, 21(4), 210-218, https://doi.org/10.1177/1044207310389333. quinn, t. et al. 2002, human rights and disability: the current use and future potential of united nations human rights instruments in the context of disability, united nations, new york and geneva, p. 64. stein, m.a & lord, j.e (2009), “future prospects for the united nations convention on the rights of persons with disabilities” in the united nations convention on the rights of persons with disabilities, p.32, https://doi.org/10.2139/ssrn.1551945. tavernise, s & oppel, r.a (2020), “spit on, yelled at, attacked: chinese americans fear for their safety”, the new york times, (new york, 23 march 2020), https://www. nytimes.com/2020/03/23/us/chinese-coronavirus-racist-attacks.html. valavan, t.p & meyer, c.g (2000), “the covid-19 epidemic”, tropical medicine and international health journal, 25(3), pp. 278-280, https://doi. org/10.1177/1044207310389333. https://doi.org/10.2105/ajph.2009.162677 https://doi.org/10.1177/10778010122182307 https://doi.org/10.1177/10778010122182307 https://doi.org/10.1007/978-3-319-43790-3_2 https://doi.org/10.1353/hrq.0.0000 https://doi.org/10.1353/hrq.0.0000 https://doi.org/10.1016/j.whi.2006.10.001 https://doi.org/10.1016/j.whi.2006.10.001 https://doi.org/10.1177/1044207310389333 https://doi.org/10.2139/ssrn.1551945 https://www.nytimes.com/2020/03/23/us/chinese-coronavirus-racist-attacks.html https://www.nytimes.com/2020/03/23/us/chinese-coronavirus-racist-attacks.html https://doi.org/10.1177/1044207310389333 https://doi.org/10.1177/1044207310389333 disability’s rights to health the age of human rights journal, 17 (december 2021) pp. 363-384 issn: 2340-9592 doi: 10.17561/tahrj.v17.6303 384 watts, j & kommenda, n (2020), “coronavirus pandemic leading to huge drop in air pollution”, the guardian newspaper, london, 23 march. received: april 22nd 2021 accepted: october 14th 2021 disability’s rights to health: an obligation triggered by corona virus pandemic abstract 1. introduction 2. results and analysis 2.1. what is the right to health? 2.1.1. disabilities rights 2.1.2. corona virus pandemic 2.1.3. application of rights to health to persons with disabilities 2.2. covid-19 pandemic and the rights of persons with disabilities 2.2.1 obligations on states and responsibilities of others towards the rights to health to person 2.2.2 notable gap between the approaches to enforcement and the human rights standard in the conv 2.3. application of the principle of non-discrimination to the right to health 3. conclusion references the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 158 femicide and gender violence in mexico: elements for a systemic approach geofredo angulo lopez1 abstract: this article aims to address gender violence and femicide through the analysis of several aspects related with its reality and current problematic or conundrum, the new standards to widen gender perspective in the ministerial practices and judicial reasoning, as well as the controversies and tensions generated by the social risk related to impunity and the current control policies and exception categories created to fight femicides and violence against women with the principles and fundaments wherewith the criminal justice system and human rights operate in mexico. keywords: femicide, gender violence, equality, discrimination, sexual torture, objective accusation. summary: i. gender and sexual expression equality of women: a paradoxical utopia. ii. violence against women: its dichotomy between the public and the private. iii. sexual violence against women as a torture method. iv. femicide: some keys for its systemic interpretation. iv.1. femicide: origin and social reality. iv.2. femicide as a legal category. iv.3. objective conviction and radical criminal functionalism. i. gender and sexual expression equality of women: a paradoxical utopia on many occasions, when talking about gender, the tendency is to identify this term exclusively with “woman” or “women”. mistakenly, in some sectors, it is considered that guaranteeing this perspective implies to only incorporate more women in organizations, to use an inclusive language (“los”, “las”, “todos”, “todas” and “todes”)2, or create specific offices to see to women’s rights. although being true that, all this measures are related to the gender perspective, they are not equivalent, nor do they use up the meaning of the term3. sure enough, the concept “gender” has as its content the social construct made on the basis of the existence of two biological sexes and the social, cultural and psycho-social traits of the 1 phd in fundamental rights by the university of jaen, andalusia spain. professor and researcher of the legal investigations center from the autonomous university of yucatan (mexico). national researcher level 1 of the investigators national system (geofreyangulo@gmail.com). 2 the use of this new gender inclusive language bolstered by feminist organizations and movements, has created controversy with the spanish royal academy (“real academia española”) for its position to defend the naturalness of language and the generic as valid to name all persons. 3 mantilla falcón j. (2007:39) femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 159 same, therefore imposed and identity and conduct guidelines for each one of the sexes. gender is not a synonym for “woman”, but of the differentiated social construct for both sexes and that makes reference to the assignment of differentiated roles, identity, power, resources, moments and spaces, which are assigned a value that permeates any area of life of all human being. therefore, gender is the social, political, cultural and legal content assigned to each of the sexes. as a consequence of this interiorized socialization, the male gender results to be an expression of a value of superiority and, the female gender, a value of subordination or inferiority.4 in this way, gender equality is, in connection to women’s rights, the guarantee of their full participation, in conditions of equality, in civil, cultural, economic, political and social aspects of life, as well as the eradication of all forms of discrimination that they might face in any given area. meanwhile, contrary to the mexican state’s advances in bolstering actions in all government levels directed to promote, prevent, and make gender equality a reality and the eradication of discrimination against women through a national legal basis; and despite the numerous treaties and international mechanisms that mexico forms part of, –even though significant improvements have been achieved–, the desired effects oriented towards giving more effective answers regarding the context of discrimination suffered by women in all spaces of personal and social life and of the inequality political and economic structures between both genders have not been reached. in very few topics such as this one exists a gap so big between the legal framework and its effective application and sociological validity. therefore, women remain as a one of the groups in situation of vulnerability that are most confronted with discrimination and social inequalitybecause the conditions of poverty, disability, age, ethnic origin, bring as a consequence the greater risk of suffering abandonment, social exclusion, violence and discrimination. the discrimination suffered by women affects all spaces of personal and social life and of the political and economic structures in which significant differences between men and women endure.5 in this aspect, women continue to be partially, a secondary workforce,6 with horizontal and vertical segments, and maintaining an unequal role regarding family and work responsibilities.7 as a consequence, in mexico, the gap regarding the administration of 4 añón roig, m.j. (2010:133) and gil ruiz, j.m. (1996:39). 5 rodríguez-piñero and braco-ferrer (2001:235). 6 according to the national poll regarding discrimination in mexico (enadis 2017), 58.8% of women interviewed declared having experienced at least one discrimination situation in the last 5 years due to the fact of being a woman. the dominating discrimination facts were: the rejection or exclusion from social activities, harassment, insults, threats, pulling and pushing, and banishment from their communities. 44.0% of the women said that their human rights are not very respected or not at all. another interesting fact is that 87.7% of the paid housemaids, stated that in their last job they did not receive labor benefits. 7 regarding the “salary discrimination” against women in mexico, it has been on the rise, particularly amongst those that live in a situation of poverty, because according to the recent brief about “poverty and gender” in mexico, women earn a fifth less than men, despite having the same academic level. cnepds. (2010-2016: 914). it is obvious, that, this type of salary discrimination is emphasized due to the presence of the so-called “crystal roof”, invisible barrier that makes it impossible for highly competent women to access higher geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 160 justice, decision-making positions, number of females judges, female magistrates and ministers, remains too large; there is data that proves that, even though women are a numerical majority in the mexican judiciary system, they are a minority divided in decisionmaking positions8; in this sense, we do not have anything more at the moment, understanding the difference as specification, that is to say, as measures of positive differentiation in favor of women9. in this way, it is important to point out that in countries that possess an adequate living standard alongside a high level of human development, it is acknowledged that allowing women access to areas of responsibility and decision-making, transforms in a proportional and positive manner the society in which this happens, by growing both in equality and justice; 10 it is also conceived that gender equality is, regarding women’s rights, the guarantee of their full participation, in conditions of equality, in civil, cultural, economic, political and social life, as well as the implementation of public policies and appropriate measures directed towards the eradication of any form of discrimination that women face in any area of their life. definitely, from this feminist realism, if we had to do an ascertainment about our mexican society, we would have to sustain that it still seems to be androcentric11. the structural causes, depending of the culture the woman belongs to, can sink in that historical level of the cultures referenced by anthropologists. in the case of the woman that is a native mayan, it is a constant the subordinated position of women before men, may it be the husband, father or brother12. in any case, may it be one type of woman or other, it is modern and contemporary history the one that has made the power model based on the male gender to still be, with more or less presence, as the ideology to follow for all society13. responsibility positions inside organizations. to review a detailed analysis about the so-called “crystal roof”. camarena adame, m. e and saavedra garcía m. l. (2018:312-347). roldán-garcía, e and leyra-fatou, b and contreras martínez, l. (2012:43-56). according to the results report of onu-mujeres, (2017) many barriers continue to appear which prevent the guarantee of women’s rights in terms of economic empowerment and their contribution in conditions of equality inside the work environment. 8 women in the mexican judiciary power represent a divided minority in no more than 5% of the decisionmaking positions. resource available in: http://www.elfinanciero.com.mx/politica/trato-disparejo-para-lasmujeres-en-poder-judicial 9 the justification for positive differentiation – has pointed out professor de asís – assumes admitting as reasonable measures that are destined for women, and that are directed towards both the satisfaction of needs regarding their inclusion in areas of political and legal power. de asís roig r. “the law of equality in the discourse of human rights”, in gómez campelo and valbuena gonzález f. (2008:56). 10 añón roig (2010:133) and gil ruiz j.m. (1996:39). 11 sánchez domingo r. (2008:23-37). 12 sánchez domingo r. (2008:24-32). 13 nevertheless, it is accurate to recognize that the androcentric unconscious is also a factor that implies education for men and women all the same. it is known as education in “complex equality” that, besides women, includes men as an active element against the man “machistas” prejudices that, unconsciously, form part of their social expression; in such way, the attainment of equality amongst sexes is a common task. about these feminism topics, which cannot be analyzed with full amplitudes and depth. camps v. (2000). amorós c. (1991) and guisán e. (1992). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 161 ii. violence against women: its dichotomy between the public and the private the reality of violence against women is a social phenomenon of multiple and diverse dimensions; from a human rights perspective it represents a rupture with a very ample catalogue of standards, guidelines, principles, rights and freedoms in virtue of international law, and with a set of institutional and social models that have contributed continuously for the formation of gender identity; that is why gender violence is understood as a product of a socio-cultural construct based on the biological difference. therefore, the complete rights equality, and the difference or asymmetric power relationships between men and women, are made from several factors related to gender, such as the use of violence, considered as the greatest source of gender discrimination.14 this way, violence against women originated because of gender is conceived, –according to the logic of the critical feminist theory of law– , as the expression of a structural discrimination against women created by a sex-gender patriarchy system15 based on a power relationship historically unequal between men and women16, and as a social, political and economic mechanism that forces women into a subordinated situation in relation to men17. nowadays, violence against women because of gender continues to be a social scourge every day more visible in all aspects of women’s lives, includes a wide range of actions and omissions that affect them severely because of their woman condition, and impacts disproportionately in their personalities and their life projects, by causing them damages and sufferings of physical, psychological and sexual types, or threats of committing such acts, coercion and other forms of arbitrary deprivations of freedom 18, may they be in public or private life19. thus, it is considered by the international community as the main obstacle for the complete development, exercise and enjoyment of women’s human rights and liberties20, which is why, it entails a fundamental obligation of the states and public 14 morales marente m.e. (2007:21) and schwendinger, julia r., and schwendinger herman (1983). 15 from the feminist discourse, the patriarchal system in linked to the use of force used in all social strata, in which men, as a product of said system-, believes to have dominium over the rights, liberties, autonomy, and life plan of women. hammock, amy, c. (1996:91) in: monarrez fragoso j.e. (200:87-117). 16 añón roig m.j. (2016: 8.12). 17 for the un, there are several main mechanisms through which the male domination is maintained and women’s subordination that happens in common and numerous scenarios. amongst them, the following: “productive and reproductive labor abuse; the control over women’s sexuality and reproductive capacity; cultural rules and practices that defend the unequal condition of women; the state structures and processes that legitimize and institutionalize gender inequalities, and violence against women. violence against women is at the same time a means to perpetuate women’s subordination and a consequence of their subordination”. un (2006:72). 18 general remark number 6 of the general recommendation number 19, 1992, “violence against women”. committee on the elimination of discrimination against women of the un, general remark number 6. 19 article 1 of the declaration on the elimination of violence against women, adopted by the un’s general assembly on december 20th of 1993. 20 un-women (1995). geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 162 authorities to adopt actions aimed towards the study of their causes, obstacles, effects, as well as necessary measures for their prevention, penalty and eradication21. for its part, it has been pointed out, that, the cases of violence against women because of gender in mexico22 and worldwide, are because of a situation of systematic violations of human rights and cultural and sociological very deep-rooted conditions inside a context of generalized violence and systemic discrimination. only to mention a shocking fact that shows the magnitude of this global phenomena, taken from the official numbers from the united nations (un), in which 1 out of 3 women has suffered some type of violence during their lifetime, may it be physical, psychological, institutional or economic. in comparison mexico, 6 out of 10 mexican women have faced at least one case of violence23. according to the report done by the office of united nations against drug and crime (ounadc), it was revealed that 87 thousand women were murdered worldwide only during 2017; the most worrying of this data is that almost 60% of this murders were committed by their current or past romantic partners, their parents, brothers, women, sisters and other members of their family environment24. this proves that, in fact, the most dangerous place in the world for a woman is her own home, and at the same time is the ideal context for the implementation of a model of male dominium, and the lingering of a value and role order traditionally accepted. violence against women turns out to be a very complex phenomenon, not only does it generate vagueness in the processes of interpretation and application of gender perspective in the judges’ arguments at the moment of solving cases essentially controversial in matters of violence and discrimination against women; but also, we have to be aware of the complications that the social and institutional model of violence has with the legal, cultural and ideological barriers, which prevent partially, that the violence against women to be conceived still as a phenomenon that cannot extend further than the romantic relationship in the private context. for this reason, we consider that this issue needs to be emphasized, because the lack of precise and sufficient information hinders the taking of appropriate measures, actions and effective resources from the state in violence cases that are committed in the family scenario, as it has been seen, continues to be the most usual place in which violence is exercised and generally the most unpunished due to the anonymity and invisibility of the aggression. it is clear, that, if it is not achieved for family violence not to be considered anymore as a merely private matter, to see it as a manifestation of origin and social relevance, it will open the gateway, for the cases of violence in mexico to continue existing, most of all inside 21 general remark number 35 about gender violence against women, for which the general remark number 19 is updated, 2017. committee on the elimination of discrimination against women of the un, paragraphs 9, 10. 22 in mexico, 66.1% of women have suffered at least one incident of violence during their lifetime. 49% of women suffered emotional violence, 29% economic violenceproprietary or discrimination, 34% physical, and 41.3% sexual during their lifetime at least in one area and exercised by any aggressor. endireh (2016). 23 un-women (2017). 24 ounadc (2017). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 163 indigenous communities25 or municipalities, like those of the state of yucatan, where native mayan women26, are affected by this very dichotomy, which is one of the causes and at the same time the obstacle which stops women from being seen as violence victims, as subjects of rights and protection27. it is true that, like in no other case, –except when it is about extreme violence–, after having suffered mistreatments, physical and psychological damages, mayan women have to remain at home with their aggressor; because, in general they ignore the existing legal protection mechanisms, and in the cases in which for some reason are convinced of filing their criminal report before the public ministry, this results as the greatest of provocations for violence to repeat itself and increase28. but, also, such circumstance creates a paradox, thus, whilst in the public space, stereotyped gender roles have been transforming, on the other hand, the social order of these communities remain virtually unaltered29. iii. sexual violence against women as a torture method sexual torture, is understood as the most extreme way of gender discrimination, is an essential human rights topic, and, thus, demands actions from the states for its eradication and conviction. the documentation of torture cases carried out by national and international organisms, as well as the investigations and sanctions regarding actions of sexual torture against women are relatively recent. however, sexual violence as a form of torture had already been developed in the context of an armed conflict by the international legal precedents, specifically in the international criminal court for the former yugoslavia and rwanda by foreseeing in the statute for both courts that the violation found in the sexual crimes catalog is a crime against humanity, a war crime and one of the constitutive elements of genocide; this, due to the legal, social, public health, real damage to freedom – personal integrity and life project of women consequences. the acknowledgement of gender violence 25 according to the report “indigenous women” of the inter-american commission of human rights (ichr) (“cidh” in spanish), the indigenous woman in the latin-american region presents a high grade of vulnerability because of the systematic violation to their human rights due to their gender; and, besides, gives a detailed report about how this situation exposes them to violence and different forms of discrimination. regarding the prevalence of family violence against indigenous women in mexico, the ichr points out in their report that 47% of the indigenous women older than 15 years old have suffered some type of couple’s violence. in the aforementioned report it is pointed out that the different obstacles faced by indigenous women who are violence victims appear in the mexican justice system. in this way it turns out to be fundamental that in the judiciary processes for a protocol to judge with gender perspective and the acting protocol for those who administer justice to be applied in cases that involve persons, communities and indigenous populations, to start eradicating the structural discrimination because of gender and ethnicity, so sadly generalized in mexico. ichr (2017:82). 26 according to official data from inegi, taken from the national poll on home relationships dynamics (endireh 2016), yucatan, is one of the states where women suffer the most violence, with a prevalence at a national level of 65.2%. the highest being mexico city is of 78.4%. 27 about the public/private dichotomy of violence against women. añón roig. m.j. (2016:11-13) 28 sure enough, this proves, just as it is pointed out by stuart mill, that, when we talk about gender violence, we talk about a silent evil in the private area and silenced in public. stuart mill. j.s. (2001:183) and gil ruiz j.m. (2006:65) 29 information taken from the results of the social investigation project, uady-kellogg. (2018). geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 164 as serious international crime contributed for the international criminal court to typify in its statute of acts of sexual violence sexual slavery, forced prostitution, forced pregnancy, forced sterilization, gender persecution, judging them as crimes against humanity, war crimes and in specific circumstances as genocide, for example, when the sexual aggression has the intent of causing real physical and psychological damages to the members of a group; as well as taken measures destined to prevent births within a group through forced abortions, sexual mutilations, rapes and forced pregnancies30. recently the ichr (cidh) started to develop legal precedents and international standards in cases related to sexual violence against women31. the first international matter on gender violence was the case of the criminal miguel castro castro vs. peru32, which constitutes an extremely important legal precedent in female penitentiary matters and women protection inside the context of an armed conflict.33 in the presence of armed individuals it constitutes sexual violence. other paradigmatic cases add up to this legal precedent such as ines fernandez ortega and valentina rosendo cantu vs. mexico, in which the corte decided that “military institutional violence” for the sexual raping and torture of two native women of the me ‘phaa community by members of the mexican army. 34 with this sentence the interamerican court of human rights creates a new international standard35 by categorizing sexual violence against women as an act of torture36. recently the inter-american court of human rights, on december 21st of 2018 notified conviction for the mexican state for the case women victims of sexual torture in atenco vs. mexico, in which the internationally convicted state for accounts of physical and psychological violence, sexual torture exercised against 11 women during their detention and their following transportation to a social readaptation center during the days 3 and 4 of may 2006. in this ruling, the mexican state acknowledged their international illegality for the violations to human rights of health 30 onofre de alencar, e.c. (2011:2 and ss.) 31 according to the un, worldwide, 43% of women have been victim of sexual violence; more than 200 million women in africa’s 30 countries and the middle east have suffered clitoris excision. un women-mexico, (2017). 32 inter-american court of human rights, (2006). 33 feria tinta, m. (2007:30-40) 34 inter-american court of human rights, (2010). inter-american court of human rights (2007: paragraph 79) and inter-american court of human rights, (2018: paragraph 186). 35 inside the international corpus juris, none of the international treaties which forbid torture such as: the international convention against torture, and other cruel, inhumane or degrading treatments or punishments of june 26 of 1987, nor the inter-american convention to prevent and punish torture of february 28 of 1987, is sexual violence included as a form of torture. bustamente arango, d.m. (2014:465). pontifical bolivarian university, colombia medellin. 36 the inter-american commission of human rights (ichr), in other matters such as de one (ana beatriz and celia gonzalez perez vs. mexico), has repeated its standing regarding sexual violence as torture. in this case, for the torture of three tzeltal women who were detained by members of the armed forces to interrogate them with the intent of forcing them to confess that they were part of the zapatista army of national liberation. during the women’s detention, one of them being a girl, were separated from their parents, beaten and raped several times. ichr (cidh), report (no 53/01. background). ana, beatriz and celia gonzalez perez (mexico), april 4, 2001. ichr (cidh) (2017:19). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 165 protection, judicial guarantees, equality before law, as well as for the non-compliance of their obligation to investigate acts of torture and violence against women. the inter-american court of human rights stated in this case, that, in overall terms, the sexual raping, the same as with torture, has the purpose of degrading, threatening, humiliating, discriminating, punishing and controlling or nullifying the victim’s personality. also, it establishes standards to categorize a sexual raping as torture, by considering as the basic elements: the intent, the severity of the torture, as well as the purpose of the act of torture, taking into consideration the context and specific circumstances of each case37. sexual violence as a method of torture in mexico has been categorized in the new general law to prevent, investigate and punish torture, and other cruel, inhumane or degrading treatments or punishments, by acknowledging in its article number 27 a new type of torture, committed with discriminatory purposes or with “any other objective”. in this type of torture, the penalty increases up to half when the victim is a girl, a pregnant woman and when the victim is subjected to any form of sexual violence. in this way, the scjn (nation’s superior justice court) ruled for the first time, that the state has to compensate as a torture victim an underage woman who was denied the interruption of a pregnancy resulting from a rape on february of 201538, despite the fact of the product originating from a sexual raping criminally reported, and presented a congenital malformation. this represents an important legal precedent, because it establishes that the denial of the authorities to carry out and abortion when the pregnancy is a result of a sexual raping, it constitutes a serious infringement of human rights, generating real damage pertaining the act of torture –sexual aggression– allowing it to continuously materialize through the passing of time. the expression of these criteria, has been established in the isolated thesis of the scjn that established that: “sexual violence has specific gender-related causes and consequences, because it is used as a form of submission and humiliation and method of destroying women’s autonomy and that, even still, it can come from an extreme type of worsened discrimination because of situations of extreme vulnerability, –such as poverty and childhood–, which implies that the victim would suffer a conflux of discriminations. sure enough, sexual raping constitutes a paradigmatic form of violence against women whose consequences, can even transcend to their persona. in that context, judges must, officiously, analyze the cases of sexual violence that are presented to them, with gender perspective, which leads to the acknowledgement of an appraisal evidentiary standard of a special nature, reason for which they shall: (i) attend to the nature of the sexual raping, which, by its own characteristics, requires evidentiary means different from other illicit conducts; (ii) grant a dominant value to the testimonial information for the victim, due to the secrecy in which this aggressions occur, which limits the existence of graphic or documentary evidence; (iii) evaluate in a reasonable manner the inconsistencies in the victim’s story, according to the 37 inter-american court of human rights (2018) and the international criminal court for rwanda. (1998: paragraph. 59) 38 scjn. (2017:75) geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 166 traumatic nature of the facts, as well as other factors that may present themselves, such as obstacles in the way of expressing oneself, the intervention of third parties, or the use of different languages, tongues or interpretations during translations; (iv) take into account the subjective elements of the victim, amongst other, age, social condition, academic background or belonging to an historical disadvantageous group, to be able to establish the feasibility of the criminal fact and concrete impact; and, (v) to adequately use the circumstantial evidence, the presumptions and clues to be able to extract consistent conclusion”39. in this sense, sexual torture is defined as a modality of gender torture, which occurs when the action is understood as sexual violence inflicted upon a person, causing physical suffering or psychological anguish to obtain a confession, information, to punish or intimidate or a third part or for any other reason. therefore, sexual violence is defined as any action that is directed towards nullifying the victim’s personality, in their physical, psychological and sexual integrity, or that goes against their freedom and life project40. indeed, for the scjn, sexual raping may constitute an act of torture even when it consists of a single fact or happens outside of state facilities, in sight of the objective and subjective elements that classifies an act of torture do not refer neither to fact accrual nor to the place where it is carried out, but to the intent, to the severity of the suffering and its objective. the jurisprudential (precedent) development of these guidelines can be found in the case: rosendo cantu and others vs. mexico, sentence of august 31 of 2010, in paragraphs from 110 to 122, and afterwards in some manner has been expressed in the recent scjn v/2015 which establishes that: “the inter-american court of human rights has stipulated that sexual raping is subsumed in an act of torture when the mistreatment reunites the following elements: (i) it is intentional; (ii) causes severe suffering may it be physical or mental; and (iii) it is committed with a certain purpose or end. thereon, it must be pointed out that, because of the severe suffering caused intentionally, the sexual raping constitutes an extremely traumatic experience that has grave consequences and causes great physical and psychological damage that leaves the victim “physically and emotionally humiliated”, a hard situation to overcome through the passing of time, unlike of what happens in other traumatic experiences. therefore, the victim’s severe suffering is deduced to be concomitant to the sexual raping, even when there is no evidence of injuries or physical illness, because it is clear that the victims of such actions also experience severe damages and scars/repercussions of psychological and social natures. finally, in reference to the third of the requirements, it follows that sexual raping, the same as torture, have as their objectives, amongst others, to intimidate, degrade, humiliate, punish or control the person that suffers from it. in the understanding that a sexual raping can constitute torture even when it consists of a ingle action or occurs outside of state facilities, due to the fact that objective and subjective elements that categorize an act of torture do not 39 scjn, (2015) xxiii. (10 a.). 40 cndh-reco.09. (2018:39). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 167 refer to the accumulation of facts nor to the place in which it is committed but, as it has been pointed out, to the intent, to the severity of the suffering and to its purpose.”41. iv. femicide: some keys for its systemic interpretation iv.1. femicide: origin and social reality femicide (“feminicidio”) is a neologism that comes from the english word femicide, used in 1974 by the american feminist carol orlock, in her unprecedented book titled “femicide”. hereinafter in 1976 the south african feminist activist diana russel uses the expression for the first time during a feminist forum with 40 countries known as the international court for crimes against women in brussels, belgium. afterwards, in 1982, in her book “rape in marriage” (violación en el matrimonio), she defined femicide as “the killing of women for being women”, and later on co-edited alongside jill radford an anthology titled femicide: the politics of woman killing in 1992, giving the concept legal and social content, by defining it as “the misogynistic killing of women committed by men regarding their condition of belonging to the female gender”, define the types of femicide and the motivation as one of the fundamental characteristics for this type of crimes, such as: anger, hate, jealousy, the search for pleasure, misogyny , contempt or a sense of superiority or ownership towards women42. later on in mexico, marcela lagarde retakes this notion of femicide from russel and radford to investigate the women killings in ciudad juarez chihuahua in 1993, translating it to feminicidio, but including in this new concept the political sense, because of the context of impunity, the vagueness of the legal order, the omission and insensitivity from the state, as well as the gender reasons because of the social construct as fundamental components which generate this type of crimes43, that at the same time, because of the cruel, systematic and violent manner of commission, as well as the causes that showed certain characteristics, reasons and manifestations very different in the mortality conducts that happened between men and women, they started to be called “feminicidios” (femicides); exposing, the fact that violent acts that were inflicted upon women had all the legitimacy to be able to consider it as a form of violence based on gender44. as a result of this culture of violence and discrimination based on gender, the inter-american court of human rights (coidh) rules against the mexican state in the case gonzalez and others (“cotton field” “campo algodonero”), vs. mexico, in which the court uses for the first time the expression “women homicide because of gender”, known nowadays as “feminicidio” (femicide)45. 41 scjn (nation’s supreme justice court). thesis p. xxiv. 42 russel. d and harmes r. (2006:78). 43 lagarde, m. (2005:155) 44 inchaustegui romero, t. (2001:374). 45 inter-american court of human rights (coidh), (2009). geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 168 in this sentence the inter-american court of human rights (coidh), it was very adamant in pointing out the silent and insensitive manner in which the state officials and authorities responded, that even knowing about the context of generalized criminality regarding violence against women in ciudad juarez, mexico, a social, political and economic context of systematic violence and discrimination against women, in which according to reports done by the un, a total of 328 women were murdered during the period of 1993200346, minimized such issue, showing a lack of interest in diligently taking care of the reports regarding women’s disappearances, because establishing 72 hours to officially declare a woman as missing inside this context47, resulted for the inter-american court of human rights (coidh) as irrational, and therefore determined its international responsibility48. therefore, femicide seen from a gender perspective, locates itself in an historicalsocial context, were it is thought of as the most extreme display of patriarchal force exercised to recover the gender borders historically delimited, and to protect the male rights and privileges socially established due to the advance the indexes of women empowerment in the physical, economic and political advance gained over the last 30 years represent49. it is precisely the main thesis that establishes the sociology regarding gender violence and femicide, is it that breach or gap generated between a gender-regulatory paradigm centered in the subordination of women and the current empowerment of the female figure present in all areas where men and women commonly interact, may it be in the interpersonal level o in the public one. thus, from this feministic logic, there have been substantial changes in matters of gender, such as the advances in the process of visibility, awareness and sensitization, social acknowledgement of inequalities, the inclusion of gender perspective in argumentative reasoning from judges, in protocols, in ministerial criteria, investigation, forensic services, the creation of education policies, which have fostered a network of specialized knowledge in matters of gender, besides of the underwriting, signing and 46 un (2003:2) 47 this non-compliance of the obligation to guarantee is severe due to the context in which the state was aware of the matter, therefore, the previous contextual analysis is highly relevant, because of it the manner in which the state should have acted coming from that context that placed women in a situation of extreme vulnerability and in which the three gender-based related homicides occurred and that gave way to the aforementioned sentences is sized-up. it is important to point out that the context is used by the inter-american court of human rights (coidh), as a parameter to measure the seriousness of the actual and immediate risk, and, if as a consequence of the state’s acting under said context there was or was not a real damage by not establishing general measures of prevention that would guarantee the personal integrity and human rights of the women who were victims of that context of structural violence against women. angulo lopez g. (2016:25-26). 48 it is precisely in this sense the inter-american court of human rights (coidh), points out that: “…the state, given the context of the case, had knowledge that there was a real and immediate risk that the victims could be sexually assaulted, subdued to ill treatments and murdered. the court considers that in sight of said context a duty of due and strict diligence facing the reports of women’s disappearances arises, in relation to the search during the first hours and the first days…” inter-american court of human rights (coidh), (2009). 49 caputi, jane (1989: 437-456). inchaustegui romero, t. (2001:377-382) and monarrez fragoso, (2000:887-117). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 169 ratification of international treaties, the enactment of laws directed towards the elimination of violence against women, the classification and categorization in most criminal codes of the federative entities of the crime of femicide (feminicidio), myriad of scientific production and of disclosure, as well as the design of mechanisms and resources directed towards the prevention and eradication of violence against women. nevertheless, the femicide violence in mexico is so serious, that, according to official data from the nacional institute of statistic and geography (inegi), only from 2000 until 2015, in mexico, 28,710 violent murders committed against women took place. in the year 2013, 32 out of 100 women were killed, the main causes for these crimes are: strangling, burning, stabbing, mutilations, or beaten with objects; whilst most of murders committed against men, 65.2% were due to the use of firearms. however, specialists and organization from the civil society say that there is no registry that allows to fully size-up the magnitude of this phenomenon. besides, in many of these cases, the authorities do not report women’s murders, the even consider them as un-intentional or suicides in many occasions. regarding the access to justice, the public ministries and experts do not carry out the investigations of these crimes according to the specialized protocols of action, reason for which, in many cases, it prevents them from being qualified or classified as femicides. about this matter, according to official data given by the justice procuration offices and state prosecution offices to the national citizen observatory of femicide (ocnf), just between 2014-2017, approximately 6297 women were murdered in mexico, however, only 30% of the cases were investigated under the performance protocol for the investigations of cases of femicide50. on the other hand, the lack of measures to prevent, investigate and judge the guilty parties, as well as obstacles that get in the way of access to justice for the victims, generates a generalized perception of impunity that inspires socially violent practices against women, that end in many of the cases in the commission of femicides51. iv.2. femicide as a legal category in fact, femicide, understood as the death of women due to gender52, continues to be one of the most controversial issues due to its multidimensional concept, the resistance of its causes, the critical situation in some regions of the country due to the increase in this type of crime, the damage caused by the victims and the social delegitimization of the criminal 50 ocnf: (2018:35). 51 un-cedaw (2018). 52 the committee of experts (cevi) of the follow-up mechanism for the implementation of the inter-american convention on the prevention, punishment and eradication of violence against women, "convention of belém do pará" (mesecvi) in its declaration on femicide (2008) ) states that: "femicides are the violent death of women for reasons of gender, whether it takes place within the family, domestic unit or in any other interpersonal relationship; in the community, by any person, or that is perpetrated or tolerated by the state and its agents, by action or omission. latin american protocol model for the investigation of violent deaths of women due to gender. resource available in: https://www.ohchr.org/documents/issues/women/wrgs/protocololatinoamericanodeinvestigacion.pdf geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 170 system that leads to impunity and lack of prevention and due diligence in investigations. hence, the implications of this phenomenon are still subject to extensive debates both from the academy and in the political, jurisdictional and legislative exercise. however, beyond the political debate, the legal issue has been gaining relevance due to the prevalence of cases of murdered women, and the particularities in which they occur. in this sense, the analysis has focused on finding elements that allow us to distinguish between a femicide and other types of criminal violence that occur in the domestic sphere, in communities, produced by state agents or individuals; but above all to acquire a new awareness of the need to find a solution to prevent, eradicate and punish this phenomenon. in this sense, at least, from the criminal dogmatics, one of the demands has been concentrated on the need to create a specific criminal offense that has practical effects on reality53. so, from this perspective femicide as a legal category, is understood as the most extreme and bloody expression of violence against women, making reference mainly to homicides committed by men against women because of their gender, and other factors and variables that allow for it to be distinguished from other homicides. in our federal criminal code femicide is typified in article 325, which says the following: “commits the crime of femicide (feminicidio) the one who deprives a woman of her life because of reasons related to gender. that gender-related reason remains in abstracto, unless its existence can be rationally justified throughout the configuration and pinpointing of the following factual assumptions: “i. the victim must present signs of sexual violence of any kind; ii. the victim has suffered injuries or defamatory or degrading mutilations, prior or subsequent to the deprivation of life or acts of necrophilia; iii. for there to be any records or information about any type of violence in the family, work or school environment, of the active subject against the victim; iv. had there been between the active subject and the victim a romantic relationship, an affectionate one or one of trust; v. for there to be pre-existing data that establish that there were threats related to the criminal fact, harassment or injuries from the active subject caused against the victim; vi. that the victim has been uncommunicated, for any given time prior to the deprivation of life; vii. for the victim’s body to be exposed or exhibited in a public space”54. in this way, besides having the legal elements, and the factual circumstances that lead us to the comprehension of the criminal fact, the evidentiary element is fundamental to rationally justify the accusation or indictment of the conduct. therefore, in this assessment judgement, in order to establish if a woman’s murder was committed because of her gender, it will not be enough to know the victim’s sex, but also the competent authorities must investigate the “motivation” and the “context of the crime” to be able to prove the existence of the crime called femicide. under these parameters it will be possible to ascertain if the deprivation of life constitutes a manifestation of discrimination, or as a part of a context of subordination, and of inequality in the relationships of power between men and women. sure 53 solyszko gomes, (2013:35). 54 article 325 cpf. femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 171 enough, the scjn points out that at the moment of setting this criminal type (“tipo penal” in spanish), evidentiary difficulties arise, because out of all the cases of women murders there should not ensue from the assumption that all expression of violence inflicted upon a woman had at its origin a gender motivation or that it developed in a context of domination, because not only would that be incorrect from the legal dogmatic point of view, but constitutionally unacceptable, most of all because that conclusion brings as a consequence the qualifying on the upgradability of the aggravating circumstance of the criminal type (“tipo penal”) of murder55. however, every event in which a woman loses her life, independently of the causes the clues might point to, for example, criminality, organized crime, suicide, accidents, etc., must be investigated and judges with gender perspective56 to establish if the homicide happened because of a gender motivated reason. therefore, this approach of the centrality of femicide in its context, the motivation as well as its factual circumstances, are fundamental components that must be includes in the argumentative reasoning of judges working towards a broader perspective that allows them to ascertain the femicide violence, and prove the criminal type (“tipo penal”) of femicide. indeed, it is important to overcome technical-operational difficulties in the implementation of the criminal offense of femicide, complying with a series of international and national standards, based on human rights, equality and non-discrimination, in accordance with article 7 paragraph b) of the convention of belém do pará and with article 1 of the mexican constitution, regarding the obligation of the state to adopt necessary measures and effective remedies to guarantee the rights, and to act with due diligence to prevent , investigate and sanction violence against women. in this sense, it is important first of all to implement permanent training aimed at eradicating institutional discrimination based on the gender prejudices that still prevail during the preliminary investigation stage of the ministerial authorities, police, judges and prosecutors. secondly, comply with the specialized protocols, which establish that when investigating the violent deaths of women that in principle would seem to have been caused by reasons related to crime, suicide or accidents, the investigating bodies should carry out their research with a gender perspective, in order to determine whether or not there were gender reasons in the cause of the event, or also to be able to confirm or rule out such reasons57. precisely, in the resolution of the proceedings to 55 scjn. (2016): “homicide because of gender. to establish said circumstance, it will not suffice to identify the victim’s sex, but it is also necessary to know about the motivation and the context in which the crime occurred”. 56 judging with gender perspective requires a reasoning that goes beyond the mere consideration of a linguistic context, or even, de application of a textual criteria to a particular case; the introduction of this approach in the work of legal operators, implies to question the supposed neutrality of guidelines and laws, the establishment of a legal framework adequate to solve issues in the most respectful way to human rights; besides that, it must work as a criteria for legitimacy of the judicial exercise to justify a differentiated treatment and give reasons for which it is necessary to apply certain rules to a certain context or facts. about the methodology to judge with gender perspective. scjn (2015). 57 latin american protocol model for the investigation of violent deaths of women due to gender. resource available in: https://www.ohchr.org/documents/issues/women/wrgs/protocololatinoamericanodeinvestigacion.pdf https://www.ohchr.org/documents/issues/women/wrgs/protocololatinoamericanodeinvestigacion.pdf geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 172 investigate a case of feminicide with a gender perspective, mariana lima case of the supreme court of justice of the nation, establishes that in the case of deaths of women it is necessary to: a) identify the behaviors that caused the death of the woman; b) verify the presence or absence of reasons or reasons of gender that originate or explain the violent death; c) preserve specific evidence to determine if there was sexual violence; d) make the relevant experts to determine if the victim was immersed in a context of violence58. certainly, with this differentiated approach, the system of criminal investigation and protection of women victims of violence, forensic expertise, and judicial procedure to accredit the criminal type of femicide is sought to be made more efficient. despite the criticism of authors who consider that a general gender aggravating factor is insufficient to face this criminological reality, we consider that feminicide has an excessive unfairness over simple homicide, since, at the epicenter of feminicide is the exercise of power based on systematic violence that causes the death of a woman in a context of non-compliance or imposition of a gender stereotype59 which creates a dominant, persistent collective imaginary that reinforces the position of inferiority, real inequality and structural discrimination of women in society; hence the importance of establishing the centrality of these crimes in their context, modifying socio-cultural patterns based on concepts of subordination, as well as defining the reasons or factual circumstances that led to the crime, among others, they are key pieces for a systemic understanding of this type of crime, and therefore, judges must take into account in their argumentative reasoning and the competent authorities to broaden the gender dimension in the procedures, and in the care strategies and resolution of specific cases of violence against women. iv.3. objective conviction and radical criminal functionalism violence against women has been generalized to the point that it cannot be understood in a definite nor objective manner, we have lost predictability, and the expectancy or expectation is that this reality may come to be no more. according to the first worldwide report burden of armed violence 2015, mexico stood out as one of the 5 countries in the world with the biggest growth in its rates of women homicides between 2011 and 2014. so far in 2019, mexico ranks first in femicides in 24 countries in latin america, according to the united nations office for the prevention of crime and drugs60. besides this alarming number regarding femicide cases, the violence has extended in such a way, that it produces not only gender breaches in economic development, social, political participation, but it also impacts on the creation of strategic measures of security, like the very controversial proposal 58scjn, case mariana lima, (2015). resource available in: https://www.scjn.gob.mx/sites/default/files/igualdad/sentencias/documento/201708/penal%20ii%20%28nacional%29.pdf 59 díaz castillo (2019:90). 60 forum "feminicides in mexico. analysis and legislative challenges 2019", resource available in: https://www.elsiglodetorreon.com.mx/noticia/1571635.mexico-primer-lugar-de-feminicidios-este-anoonu.html femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 173 of militarizing police forces with the creation of the national guard, or from the current criminal system, with the new ways of convicting criminal conducts that look to aggravate the penalty when the victim is a woman or gender reasons in the commission of crimes meet, or for a higher penalty regarding the crime of femicide, in the factual premise that the victim is an underage woman; measures that go against the protective positions and of human rights. the truth is that law cannot subsume before a social reality that demands intersubjective rules that are valid for liability and duties for society as a whole. in the case of femicide violence, new dangers are perceived for women, in the public area, as well as in the intimate one, which implies having the capacity of reacting on a bigger scale to face, what arnaud calls, the paradox of paradoxes61, which has to do, in this case, with the lack of regulative ability of law to interpret de complexity of legal-social phenomenons such as violence against women, the lack of efficiency from state agents in the lack of applying instruments to size-up gender violence and prevent and eradicate it more effectively, and of legal operators, at the moment of identifying it inside de procuration, impartation and administration of justice. this situation creates a dialectic tension between a punishment and control logic through the implementation of restrictions and categories of exception designed to fight the effects of criminality and femicide violence, such as the officious preventive prison, with the principles and legal bases the accusatory criminal system works with, directed mainly towards maximizing the respect of human rights and legal guarantees in criminal processes62. in this way, facing the growing complexity of gender violence and femicide cases, the criminal justice system seems to find itself far from balance, between the non-impunity –the punishment of the guilty parties– and the protection of human rights of women as victims of a crime and of the social group; and, on the other hand, a model to criminalize supported in the assumption of guilt, in constrained rights and minimal procedural guarantees for the accused. therefore, amongst the criminal dogmatic, we will expose briefly, two types of criminal functionalism: the criminal evaluating functionalism and the rigorous or radical legal criminal functionalism; models whose study and analysis result necessary to have better effective logistics and a broader vision about the way to face this social phenomenon. firstly, we present the thesis of the criminal evaluating functionalism or also called moderate backed up by claus roxin, who states that, in order to fight off criminality, or in this case femicide violence, it must be bases on a strategy of national interdisciplinary prevention and one of respect of the fundamental rights directed towards the search of alternatives to the criminal punishment, that is to say, the penalties system must limit whenever possible the criminal behaviors with the criminal punishment threat. from this conception the person accused of violating a rule or law only answers for the damage to the protected value, therefore, the punishment acquires a reinsertion function, of repair of the 61 arnaud a.j. (1994:1003) 62 for a greater comprehension of the criminal amendment and the accusatory criminal system in mexico, vid; gomez gonzalez, (2016: 1-1046). a., criminal amendment 2008-2016. the accusatory criminal system in mexico, mexico city, inacipe, first editorial. 2016, pages 1-1046. geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 174 social damage as a positive general prevention, the criminal’s reeducation and not a deprivation of his/her freedom, except in specially serious crimes63. consequently, from this axiological perspective, a narrow bond is seen between the conception of the absolute value of human rights and guarantees and the “critical interests”, that is to say, that the criminal’s value as a person is independent from their personal fable, the type of crimes he/she commits, the level of cruelty of his/her actions, or the impression they generate in society; that is to say, the inherent character of their rights and their dignity, are not affected, nor do they depend of the perception of the damage inflicted upon the victim or the welfare of the community64. secondly, we have, the rigorous or radical legal criminal functionalism, which will try to overcome the abstract of the criminal evaluating functionalism adopting a rigorous stand in order to achieve social stabilization. from this conception the subject appears as a danger for the state and society itself. therefore, a type of criminal law of exception appears with the objective of fighting those dangers through the use of certain security measures as the restriction of certain human rights65. a kind of extreme reason, that is, as a legal mechanism that operates when all other forms of social control have failed66. with this argument, human rights will be subservient to a set of expectations of behavior sustained by the general consensus. in such way that, if the legal and social expectations for behavior are not met, human rights might be restricted through a type of law that serve as an instrument of social cohesion67. in the center of this criminal theory we fin günther jakobs, considered as one of the most polemic jurists, author of the so called “criminal law of the enemy”. jakobs bases his thinking on the quality of the subject that fails to comply with the legal expectation, modifying the structure of guilt and the punishment, in the assumption of “the enemy”. for jakobs, the punishment’s function is not the coercion directed against the person, but of fighting the risk generated by the dangerous individual through security measures68. sure enough, the fundamental part of this theory will focus in the efficacy of the punishment in a relation to the reaffirmation of the rules validity and the reestablishment of the social order69. jakobs considers that “who does not give a sufficient cognitive security of a personal behavior, not only cannot expect to be treated still as a person, but the state must not treat him/her as a person anymore, because if not it would affect the right of other people’s 63 roxin, c. (1998: 885 and ss) “zur kriminalpolitschen fundierung des strfrechtssystems”. em festschriff für günther kaiser. berlin. duncker & humblot, and arias eibe, m.j., (2006:440-442). “moderate criminal functionalism or teleological value versus legal or radical functionalism”, doxa, legal philosophy notebooks, no. 29. 64 dworkin, r. (1996: 306 and ss) and perez treviño, j.l. (2007). 65 portilla contreras, g., (2005). 66 toledo vásquez, (2009:70) 67 montoro ballesteros, a. (2007:370). 68 jakobs, g. (2003: 24-25). 69 arias eibe, m.j., (2006:447-448). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 175 safety”70. therefore, the person exists according to their social relationship bases not only in the personal self-determination, but is also defined through an independent rule regarding any decision or preference, being able to be invoked by others. this rule turns into a social rule in the strict sense for jakobs: in the moment in which we realize what we want for us, that is to say, that nothing bad is done to us, that can be considered as cruel, inhumane, unfair, it is valid also for others. in this sense, in jakobs it is highlighted that the importance in the formation of “all personal order,” of the “duties to contribute to the preservation of the group which exists through the order”71. as a part of this conception of the rigorous or radical legal criminal functionalism in which the approach that is privileged is that one of “dangerousness” of the criminal from a “legal construction”, we can see it clearly in the constitutional acknowledgement of the figure of “entrenchment” (arraigo in spanish”), preventive measure that justifies the legitimate restriction to human rights such as personal freedom and the presumption of innocence when there are indications that the accused might evade justice, hinders investigations o might place the crimes’ victims at risk. a fundamental aspect, regarding this preventive measure, is what was resolved by the scjn, in the thesis contradiction 293/201172, that nullifies the validity of any other known legal content acknowledged in an international treaty of human rights, or the interpretation criteria which might result from them when confronted with the explicit restrictions to the exercise of human rights contained in the constitution. therefore, under this scjn criteria, it leaves without effect every judicial resource of this preventive measure even if it violates principles and human rights acknowledged in article 1 of the mexican constitution that entail a series of acting mandates and of optimization of the legal system. recently, on february 19 of the current year, with 377 votes in favor, 96 against and 15 abstentions, approval was carried out in the republic’s senate, the project of amendment to constitutional article 19 which pretends to adjust the accusation’s criteria of criminal responsibility to contain the realization of criminal conducts, with the expansion of the crimes catalog which deserve officious preventive prison –amongst them the crime of femicide–, a measure –from our point of view–, as an exception to the constitutional and conventional guarantees of freedom that pretends to be implemented without any legal reasoning that justifies the need and the adequacy of such preventive measure, that can be obtained through scientific evidence, with the application of “neuropsychological reports” and of “risk predictions” that might be exploited as assessment instruments to measure the cognitive 70 jakobs, g. (2003:47). 71 jakobs, g., (2003:342-343) and jakobs, g. (1996:79). 72 thesis contradiction 293/2011. scjn. (2011:96). geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 176 capacity of the criminal behavior, the high degree of danger, the risk of violence that might place the victims of the crime in danger or jeopardize the safety of others. 73 we consider that these measures point towards a restrictive criminal functionalism of human rights and judicial guarantees; we do not deny that it could be implemented on a temporary and exceptional basis in a context in which public lack of public safety exists, extreme violence, terrorism, and high criminality, a rigorous and radical standing in criminal law, that might be feasible, so that in a judicial process, a person or a group of people that commit actions directed towards the destruction of the social structure, and that shock the state’s security and safety, so they can be judged with the maxims of criminal law within the bounds of the minimum guarantees of due process. however, we believe that the constitutional amendment regarding the officious preventive prison, depends on other circumstances, first: to effectiveness problems in the implementation of social reinsertion and alternative justice; second: in the lack of capacity of the state of reducing organized crime to reasonable limits; third: the lack of prevention, investigation and punishment of crimes, now cataloged as serious, like: first-degree/intentional murder, rape, kidnapping, person trafficking, abuse and sexual violence against minors, femicide, forced disappearance, amongst others: that obviously, originate from a generalized perception of public lack of security/safety, corruption and impunity, which has led to a social delegitimization of the current criminal policy, of public safety/security and of the essential mechanisms and parameters used by criminal justice in mexico uses to operate74. in this way, we uphold that cataloging femicide as a serious crime resulting in automatic preventive prison, is a speech which indicates a vision ever so unadjusted by the state of the reality of gender violence in mexico. femicide, from the current criminal dogmatic, it has become a typical relevant fact, in an unconventional crime, a crime of abstract and concrete danger. therefore, the social relevance that could be attributed to a femicide, do not only have to focus in the causative result, or in the gender reasons or circumstances or the socio-psychical one of the aggressor’s presumption, but in the starting point the meaning of the unlawfulness of the conduct in a specific social context must be placed as well. in these cases of femicide or femicides in attempted degree, it is important that the following is taken into account: the seriousness, the cause, the purpose, motive, reason, but it also has to be taken into account that the causality only operates on a first degree of communication, giving us the original elements of the criminis notice, which has to be submitted to an assessment judgement done by the legal operators to reach conviction. in such a way, which determines the typical relevance of a conduct, is the assessment judgement. therefore, from the objective conviction theory –as defended by caro john–, it is determined that a reprehensibly legally-criminal conduct is considered ad typical not because of its causality, nor for its seriousness, nor for its objectives, but because of when it 73 about the practical application of reports based on neuropsychological studies and risk prediction in the mexican judicial system. dzib aguilar, j.p. (2013). 74 angulo, lopez, g. (2017:55-60). femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 177 communicates the overcoming, overreaching of extracriminal rules and laws.75 in such a way, that the aggressing subject with the femicide violence not only defrauds the legal expectation, but also creates an unbalance between his real behavior and the conduct expected socially from him/her, that is to say, defrauds institutionalized expectations and conceptions with a strong universal consensus,76 so that the reproach to his/her conduct is legal and social. however, the reproach must also be political; the state also defrauds a social expectation. in this argumentative thinking, the restrictive measures will be sterile, such as the officious preventive prison for crimes such as femicide, if the authorities and legal operators do not investigate and judge with gender perspective in cases of violence and homicides committed against women. from this it is obvious that important theoretical and legal obstacles originate at the moment of investigating, proving and judging this type of cases such as femicides. even though we find ourselves before a criminal and social relevant fact, because from the objective conviction theory, the conduct in this type of crimes surpasses the socially permitted risk; for the case of gender violence and femicide, it will not be enough that the punishment’s function to only be coercion against the aggressor, but also to fight the risk generated by the subject’s conduct and by the omissions of state agents. therefore, we consider that, prefixing only punitive restrictions that modify the structure of guilt to contain the realization of criminal conducts, like increasing the crimes that deserve officious preventive prison, will not fix, at least, a phenomenon so complex such as gender violence and femicide in mexico77. definitely, the accomplishment of an authentic substantive equality between men and women, is far-off from women’s reality in mexico. violence against women, has reached a culminating point from a spiral of violence originated in a context of high criminality, lack of safety/security, discrimination and violence extended to all spaces in which women and men interact with each other. according to official data from the public safety/security national system (snsp in spanish) of the governance secretariat, between january and august of 2018 21,877 first-degree/intentional homicides and 538 femicides were registered, all of them committed with a high level of violence and cruelty. this data gave led to 2018 being the most violent year in mexico’s history. this regrettable situation finds itself within a realist fallacy, which reduces all legal dogmatic and feminist views to a minimum level, which results to be ineffective to diminish the high violence indexes and femicides in mexico. in this way, it is necessary to carry out a rethinking of the problematic from all possible variables; it would be a mistake to try to explain and solve such a complex phenomenon from the criminal dogmatic perspective, or from a single reasoning, –the asymmetry of gender power–, proper of the feminist discourse. we cannot evaluate, or approach violence against women, as we have been doing so during the last 30 years; without a doubt, today women’s reality is another. we need resources that several disciplines or fields may provide, such as: psychology, sociology, anthropology, criminology, according to the current context of 75 caro john j.a. (2003:26) 76 polaino-orts m. (2009:73-74). 77 günther jakobs (2003) geofredo angulo lópez the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 178 gender violence and femicide; and most of all that the state is willing to integrate those criteria to their public policies of prevention, treatment and punishment of aggressors, and protection of the victims. this is a path that deserves to be taken in order to achieve new perspectives regarding violence against women, according to me. it is a paradoxical utopia, that might lead us from this very complex social problem, to a new horizon, where generalization, universal satisfaction of human rights, the growth, progress and peace for all women, is seen as something possible. references angulo lópez, g. 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(2017) amparo en revisión 601/2017. available in: https://www.scjn.gob.mx/sites/default/files/listas/documento_dos/2018-02/ar-6012017.pdf femicide and gender violence in mexico: elements for a systemic approach the age of human rights journal, 12 (june 2019) pp. 158-183 issn: 2340-9592 doi: 10.17561/tahrj.n12.9 183 scjn. (2016) tesis aislada núm. 1a. cciv/2016 (10a.) available in: https://sjf.scjn.gob.mx/sjfsist/documentos/tesis/2012/2012109.pdf scjn. (2015) xxiii. (10 a.) “torture in its aspect of sexual violation. the relative probative analysis must be with a gender perspective”. scjn, (2015). tesis p. xxiv. "sexual violation. case in which it is subsumed in an act of torture ". scjn. (2015) “protocol for judging with a gender perspective. "realizing the right to equality, mexico”. available in: http://187.174.173.99:8080/leyes/protocolos/3.p scjn. (2011). contradiction of thesis 293/2011 scjn, gaceta del semanario judicial de la federación, libro 5, abril de 2014, tomo i. other documents cndh (2018): reco-9/2018. available in: http://www.cndh.org.mx/sites/all/doc/recomendaciones/2018/rec_2018_009.pdf endireh (2016): national survey on the dynamics of household relations. available in: http://consulta.mx/index.php/estudios-einvestigaciones/otros-estudios/item/995inegi-resultados-de-la-encuesta-nacionalsobre-la-dinamica-de-las-relaciones-en-loshogares-2016 ocnf: (2018): report implementation of criminal type feminicide in mexico: challenges to accredit gender reasons 2014-2017. available in: https://observatoriofeminicidio.files.wordpress.com/2018/05/enviandoinformeimplementaciocc81n-del-tipo-penal-de-feminicidio-en-mecc81xico-201420171.pdf uady-kellogg. (2018): intervention project on family violence against women in maní, yucatán (méxico). project director: geofredo angulo lópez. w.k., kellogg foundation. autonomous university of yucatan (méxico). microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 155 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law renato antonio constantino caycho *,1 abstract: this paper analyzes the recent reform regarding the legal capacity of persons with disabilities in peru. it provides a domestic legal and judicial context in which the reform was adopted. following this, the paper aims to analyze the reform’s conformity with article 12 of the convention on the rights of persons with disabilities, noting that the current regulation is only partially crpd compliant. the current design of judicially designated supporters can be understood as valid under specific interpretations of article 12, while the design of safeguards does not comply with such standard. the paper addresses the impact of legal capacity reform in traditional private law theory of the juridical act. currently, the peruvian system does not provide clear or accurate standards to respond to this problem. the paper shines a light on the need to rethink multiple concepts of private law in order to make legal capacity reform fully operational. keywords: human rights; disability studies; peruvian civil law; legal capacity reform; supported decisionmaking; un convention on the rights of persons with disabilities. summary: 1. introduction. 2. previous developments regarding legal capacity of persons with disabilities in international human rights law and peruvian law. 2.1. a brief reference to legal capacity in international human rights law. 2.2. a brief reference to the legal context in peru. 2.3. legislative developments. 2.4. judicial developments. 3. legal capacity in the reform. 4. support in the reform. 5. the exceptional case of judicially designated supporters. 6. safeguards in the reform. 7. the reform * conflict of interest declaration: renato constantino participated in civil society consultations of legal capacity reform in peru. during 2017, he was one of the leaders of lobbying efforts in favor of proposal 872/2016, a bill that would have reformed legal capacity law in peru. 1 renato antonio constantino caycho is a peruvian lawyer. he has jd (equivalent) and a m.a. in human rights from pontificia universidad católica del perú. he also holds an llm in international legal studies from american university washington college of law, where he was open society foundations disability rights fellow. he is currently a full-time professor at pontificia universidad católica del perú’s department of law and is a member of the interdisciplinary research group in disability gridis pucp (renato.constantino@pucp.pe). many of the ideas presented here come from seeing my mother exercise her legal capacity after having a brain injury in 2018. she inspires me every day. different versions of this document were presented at the society for disability studies multiple perspectives on access, inclusion, and disability conference at the ohio state university (2019) and at the essex autonomy project summer school at university of essex (2019). a few of the ideas presented here were also mentioned in spanish at: bregaglio lazarte, r. a., & constantino caycho, r. a. (2020). un modelo para armar: la regulación de la capacidad jurídica de las personas con discapacidad en el perú a partir del decreto legislativo 1384. revista latinoamericana en discapacidad, sociedad y derechos humanos, 4, 28. the text has received generous and insightful comments from robert dinerstein, wayne martin, sándor gurbai, maría gómez, polona cuk, renata bregaglio and agustina palacios. usual caveats apply. a special note of thanks to paula camino for her research assistance. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 156 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law in current private law theory. 7.1. the juridical act in private law. 7.2. some examples of the interaction of the doctrine of juridical act and article 12. 7.2.1. error. 7.2.2. conflict of interest. 7.2.3. undue influence. 7.3. preliminary conclusions. 8. conclusions 1. introduction implementation of article 12 of the convention of the rights of persons with disabilities (crpd) is one of the most critical issues in disability rights nowadays. it has been quite difficult for many to grasp its implementation. that is why any reform on the matter gets immediate attention from the disability rights scholarly community. peru’s civil code reform has been praised as the most crpd-compliant normative modification regarding legal capacity of people with disabilities by experts (minkowitz, 2018), international organizations (inter-american commission on human rights, 2018) and in academia (martinez pujalte, 2019, p. 4). peru’s traditional disability-based substitute decision-making regime was completely eliminated via legislative decree 1384, published on september 4, 2018. this article will analyze the reform’s legal text to assess its compliance with the crpd.2 in doing so, i will try to assess the challenges that remain in order to achieve a full recognition of legal capacity of persons with disabilities in peru. i will also assess the impact the reform has had on the concept of free will and how this affects the basic tenets of private law. therefore, this paper will have the following structure: (i) a reference to previous developments in peruvian law, followed by an analysis of the most important reforms regarding: (ii) legal capacity; (iii) support; and (iv) safeguards. after that, i will analyze (v) how the reform interacts with the concept of free will stated in the theory of juridical acts. next, i will address the issues that were not modified by the reform and that are related to the full recognition of the legal capacity of persons with disabilities. finally, i will present some conclusions and final comments. 2. previous developments regarding legal capacity of persons with disabilities in international human rights law and peruvian law in this section i will provide some context for the reader on the peruvian civil code reform and the efforts from the state and civil society that allowed for this reform. 2 for the most part, i will use sodis’ translation of the text of the reform. i believe it is a great translation, but i have some reservations. for example, in article 221, the translation uses “voidability” for the term “nulidad”. i prefer the use of “voidness” because it shows that the act never existed. “voidability” would be more like “anulabilidad”, a civil law term that indicates that an act could be void but also confirmed. the translation can be found here: http://www.chrusp.org/file/340835/legislative_decree_no_1384__ peruvian_legal_capacity_reform_.docx the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 157 renato antonio constantino caycho 2.1. a brief reference to legal capacity in international human rights law. article 12 crpd is entitled “equal recognition before the law” and it has 5 sections: legal personhood (passive capacity), legal capacity (capacity to act), supports, safeguards and access to property and financial services. this means that states “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (article 12.2). according to the crpd committee’s general comment 1, legal capacity “recognizes the person as an agent who can perform acts with legal effect” (2014, para. 16). therefore “states must holistically examine all areas of law to ensure that the right of persons with disabilities to legal capacity is not restricted on an unequal basis with others” (crpd committee, 2014, para. 7). this does not mean that any restrictions are forbidden. it means that they cannot be based on a disability. then, disability-neutral3 reasons such as “bankruptcy or criminal conviction” are allowed (crpd committee, 2014, para. 32) as long as they do not violate other human rights. the text of article 12 made it clear that disability could not be a reason to deny legal capacity. however, the understanding of this statement was not clear for everyone. many argued that in certain cases, when the person with a disability does not understand or cannot act on that understanding, there should be some space for disability-based substitute decision-making (del villar, 2015; dawson, 2015). however, the committee decided that the functional approach “is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law” (crpd committee, 2014, para. 15). this debate, as well as others, will inform my analysis throughout the paper. 2.2. a brief reference to the legal context in peru peru is a continental law jurisdiction. this means that judges are not as open to innovation as they might be in common law jurisdictions.4 consequently, reforms usually require new legislation, as judges are not able to modify legislation, and are not too keen to interpret existing legislation in a way that would disrupt the status quo either, even when doing so may be justified. this is relevant in regard to the reform on legal capacity, since crpd was automatically law in peru since 2008. even though crpd was automatically law in peru and had priority over acts and statutes, few judges, if any, were willing to apply article 12 before the civil code reform. another relevant issue is access to information regarding the application of article 12. most of the literature on article 12 (bhailís, clíona and flynn, 2017) and its implementation (dhanda, 2017, p. 88) has been written in english, and has focused on 3 it is important to mention that the concept of ‘disability -neutral’ does not have a widely understood meaning. for a proposal see (flynn & arstein-kerslake, 2017) and for a criticism see (minkowitz, 2017, pp. 81–84) 4 for a comparison between legal systems, see david, 1978. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 158 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law the experience of first world countries (dhanda, 2017, p. 88). as dhanda has stated, this usually makes it difficult for developing countries to vie for reform, because the usual excuse put forward by legislators is that “the resources available in first world countries are not available” for our countries, and thus reforms cannot be implemented (dhanda, 2017, p. 88). nevertheless, peru managed to implement its reform. although the reform caught most people by surprise, it did not happen overnight – we can track a series of actions that led up to its approval (international disability alliance, 2017, pp. 17-20). peru ratified the crpd in 2008. during the state’s first appearance before the un crpd committee, the committee stated that peru’s legislation was not in conformity with article 12 (crpd committee, 2012, para. 24). this was not an unusual conclusion for the committee, as few – if any – legislations around the world actually allow for full supported decision making. in fact, it is important to note that the committee has not found any national legislation to be fully crpd compliant (dinerstein, grewal and martinis, 2016, p. 448). at the time, peru’s legislation allowed for substitute decision making. it also discriminated against “deaf-mute, blind-deaf and blind-mute persons, as well as mentally handicapped persons and those suffering from mental deterioration” (crpd committee, 2012, para. 26). since then, there have been several changes regarding legal capacity of persons with disabilities, both in the legislative framework and in judicial practice. 2.3. legislative developments prior to this reform, there were some attempts to recognize the legal capacity of persons with disabilities. the person with disabilities act 2012, law 29973,5 recognized the legal capacity of persons with disabilities. however, the act did not modify the civil code, so this recognition did not have an impact on the recognition of legal capacity in the system.6 as the current un special rapporteur on the rights of persons with disabilities has stated, it had more of a declarative value (devandas, 2017, para. 40). thus, as the act had not removed most legal restrictions in hierarchically superior norms that denied legal capacity to persons with mental disabilities, it did not effectively align peruvian legislation with article 12 of the crpd. it did, however, have a limited effect, insofar as it eliminated provisions against the deaf-mute, blind-deaf and blind-mute persons.7 5 enacted by law 29973, the person with disabilities act, published on 24 december 2012. 6 in fact, the person with disabilities act 2012, 29973, stated that: “article 9 – equal recognition as persons before the law 9.1 persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. the civil code regulates the support systems and reasonable accommodations they require for decision making. 3 9.2 the state ensures persons with disabilities their right to own property, to inherit, to access and freely contract for insurance, bank loans, mortgages and other forms of financial credits, on an equal basis with others. likewise, it ensures their right to marry and to freely decide on the exercise of their sexuality and fertility.” the translation comes from this website: http://www.internationaldisabilityalliance. org/sites/default/files/documents/peru_general_law_on_persons_with_disabilities.english.pdf 7 “mute” is considered an offensive term for deaf and hard of hearing persons. however, it is the literal term used by the previous legislation. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 159 renato antonio constantino caycho despite falling short of proper reform, the act did create a special committee for the reform of the civil code 1984, which drafted a bill on the matter.8 civil society, academia and public officers were all represented in this committee. due to time constraints, the bill did not address every aspect covered by article 12 and thus would have failed to implement a proper, article 12-complaint, civil code reform. ultimately, the bill did not pass, because the congressperson could not argue for the text when confronted against criticism and doubts. it did, however, serve as the basis for proposal 872/2016, bill drafted by civil society that received multi-party support and it is safe to say that this last document was the main input for the legislative decree 1384.9 reforming the civil code 1984 has been a long and tedious process. most congresspersons and their advisors were not fully aware of the implications of article 12. many of them wanted to improve conditions for persons with disabilities but doubted that recognizing full legal capacity was the correct path to doing so. civil society, on the other hand, made several unsuccessful pushes for the proposal’s approval. most private law scholars were absent from the debate and the majority of those who did participate, opposed the proposal (bolaños salazar, 2018, pp. 124-128). i believe that their opposition came from an unwillingness to challenge any concept of private law like discernment. one of them actually wrote, during another attempt to modify the civil code: “at this point of my life, what i do not understand is wrong” (castillo freyre, 2005, p. 38). during this time, there was a desire from government to change things, but no clear guide on how to proceed. the executive branch’s legislative decree on additional simplification measures for administrative affairs 2017, decree 1310 is proof of this.10 the decree aimed to facilitate the process through which older persons could access their retirement pensions. at the time, as guardianship laws were still in place, financial institutions would demand a guardianship ruling before granting a person access to their pension. as the court procedure was long and often expensive, the decree allowed for a notary procedure to appoint a guardian, applicable only to these cases. four days after the civil code’s reform, the decree was modified via legislative decree for the inclusion of persons with disabilities 2018, decree 1417, which eliminated all references to guardianship and changed them for references to supports.11 however, the 8 the committee members were: congresspersons jhon reynaga and rosa mavila; president of the national council for the integration of persons with disabilities (conadis); representative of the judicial branch, representative of the pontificia universidad católica del perú school of law, representative of the office of the ombudsperson, representative of the national registry of identification and civil status (reniec); and three representatives of civil society from alamo perú (organization of persons with psychosocial disabilities), sociedad peruana de síndrome down (organization of relatives of persons with down syndrome) and sociedad y discapacidad sodis, a human rights organization specialized on the rights of persons with disabilities. 9 in the peruvian legal framework, a legislative decree is an act of the executive branch with the same power and validity of an act of congress, since it is developed under the explicit permission of the parliament. 10 legislative decree 1310 on additional simplification measures for administrative affairs, published on december 30th 2018. 11 legislative decree for the inclusion of persons with disabilities, published on september 13th 2018. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 160 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law decree now establishes a procedure for appointing supports, and safeguard measures, that are applicable only to these cases and differ from the general supported decision-making regime. parallel to this, the executive branch decided to recognize “supports” within a public policy that awarded non-contributive pensions to persons with severe disabilities living in poverty.12 as i mentioned prior, most institutions required a person with a disability to provide a guardianship ruling in order to access a pension. since most people who qualified for this pension live in rural areas, it was essentially impossible for them to initiate a guardianship procedure before a judge or notary, due to the lack of accessible services. in light of this, the ministry of inclusion and social development stipulated that another person could receive the money, provided that he or she lived with the person with a disability and could later prove that the money was used for the care of the person with a disability, a measure that could be seen as safeguard.13 although these persons could be construed as supports, this law established yet another form of support that, in this case, did not consider the will of the person with a disability. in conclusion, there were different and opposing measures regarding legal capacity before the reform. 2.4. judicial developments there have also been some judicial cases that dealt with legal capacity prior to the reform. at the highest level, the constitutional court has not properly understood the social model of disability and its implications until the reform (verano, constantino and bregaglio, 2018, p. 20). in 2009, in a case regarding the placement of a person with a disability in a care home by a guardian,14 the constitutional court argued that the protection of persons with disabilities does not mean that “persons who suffer mental disabilities lack a will or that their will has no value” (2009, para. 4). the court also argued that “mental disability is not a synonym, prima facie, of an inability to make decisions. in the court’s view, although persons who suffer mental illnesses usually have difficulties to decide or to communicate such decisions, their will should be take into account because it is a manifestation of their self-determination and, on a fundamental level, of their dignity” (constitutional court, 2009, para. 6). however, in this same decision, the court held that it should not be the guardian who decided whether to place the person in question in a care home or not, but a council formed by relatives of the person with a disability. the relatives would have to make a decision following a best-interest approach. this was held even 12 this program is called “contigo”, which means, “with you”. it was created via the persons with disability act 2012, law 29973. the article in question states: “article 59. noncontributory pensions for severe disabilities persons with severe disabilities living in poverty, in accordance to the criteria of the household targeting system (sisfoh) and who do not have a pension or income from public or private sectors, receive a noncontributory pension from the state. the health directorates will provide the certificate of severe disability and conadis will register them. the regulations establish the requirements and conditions to progressively access this benefit.” translation retrieved from: http://www.internationaldisabilityalliance. org/sites/default/files/documents/peru_general_law_on_persons_with_disabilities.english.pdf 13 the directive is available at: http://www.juntos.gob.pe/modulos/autorizaciones/normativa/ procedimiento_de_autorizacion_de_cobro.pdf. published on may 2nd 2018. 14 constitutional court of peru. decision on case n° 2313-2009-hc/tc. september 24th 2009, para. 4. available at: https://tc.gob.pe/jurisprudencia/2009/02313-2009-hc.pdf the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 161 renato antonio constantino caycho though the person with a disability in question had expressed her desire to leave the care home, essentially ignoring that person’s will.15 at no point of the discussion did the court make any mention to the obligation that stems from article 12, or the crpd. not only did the court ignore article 12, but it openly opted for a decision that opposed the article’s provisions. only recently did the constitutional court16 recognize the importance of legal capacity of persons with disabilities, in consonance with legislative decree 1384 (2014). nevertheless, at the trial court level, there have been some notable advances. in 2014, judge jorge ramírez niño de guzmán ruled that a guardianship process against a person with psychosocial disability had serious violations of due process and thus nullified the process.17 however, this decision was not justified on the basis of crpd obligations. the judge arrived at his ruling mainly because during the initial guardianship process, the person with disability had not been allowed to choose his own lawyer or provide proof or testimony. the decision was confirmed on appeal in 2018.18 in 2015, judge edwin béjar – who happens to be the first and only blind judge in peru – argued that the guardianship regime was not legal, as it contradicted article 12 of the crpd.19 therefore, he ruled that a guardian should not be appointed to two brothers with intellectual disabilities, and ordered the national office of pensions not to require a guardianship ruling in order to award the brothers their pension, even though before the reform, providing a guardianship decision to access a pension was a statutory requirement. the judgment also created a “temporary supported decision-making system” specifically for the two brothers. their mother, sister, and the court’s social services team: a coordinator, psychiatrist, psychologist and social worker were all parties in this system. additionally, judge béjar provided an easy-to-read version of the decision. it is important to note that requiring a guardianship ruling in order to award a pension is now expressly prohibited by legislative decree 1384.20 however, the decision was overturned by the superior court in 2015.21 after judge béjar tried the case once again and arrived at the same ruling, the ruling was declared null by the supreme court in 2017.22 15 according to article 619 of the civil code prior to the reform, the family council looks out for the interests of incapable adults without parents. 16 constitutional court of peru. decision on case n° 0194-2014-hc/tc, april 30th 2019. available at: https://tc.gob.pe/jurisprudencia/2019/00194-2014-hc.pdf 17 second constitutional court of lima. decision in case n° 251582013-0-1801-jr-ci-02. 18 third civil trial court of lima. decision in in case n° 25158-2013-0-1801-jr-ci-02. retrieved from: https://static.legis.pe/wp-content/uploads/2018/06/sala-confirma-capacidad-jur%c3%addica-de-personacon-exquizofrenia-legis.pe_.pdf 19 third family court of cusco. decision in case n° 01305-2012-0-1001-jr-fc-03. available at: http:// www.gacetajuridica.com.pe/envios-laley/sentencia-cusco1.pdf 20 the second transitional complementary provision is as follows: “elimination of the requirement of interdiction.all public and/or private entities adapt their administrative procedures, under their responsibility, within a period not greater than one hundred and twenty (120) calendar days, counting from the day following the publication of the decree in the official gazette el peruano.” (own translation). 21 civil chamber of the superior court of justice of cusco. decision n° 38 in case n° 01305-2012-0-1001-jrfc-03. available at: www.pucp.edu.pe/6yxxyn 22 permanente constitutional and social chamber of the supreme court of justice. decision in file n° 18332017. available at: https://static.legis.pe/wp-content/uploads/2019/01/exp.-1833-2017-cusco-legis.pe_.pdf the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 162 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law 3. legal capacity in the reform the reform was ultimately passed in september of 2018 via legislative decree 1384. this decree modified and repealed norms in the civil code 1984 and the code of civil procedure 1993 to introduce a supported decision-making system in peru. fundamentally, the decree eliminated provisions in the articles 43 and 44 of the civil code 1984 that allowed for substituted decision-making regimes (via guardianship rulings) in the cases of persons with mental disabilities.23 the civil code 1984 was reformed to recognize full legal capacity to persons with disabilities who, except for certain cases, can freely appoint supports and safeguards through judicial or notary procedures. for those “difficult cases” referred to previously, the reformed code establishes the possibility of “compulsory supports”. that is to say that when a person cannot communicate their will, even after all efforts (including measures of accessibility and reasonable adjustments) to understand it have been exhausted, a judge can appoint supports and safeguards to protect or exercise the rights of said person, by request of any third party. according to the reformed civil code 1984, any natural or juridical person can be designated as a supporter, and supporters can be designated for specific acts, in the present or in the future. as i shall further explain in the following sections of this paper, the reform establishes a compulsory safeguard, and leaves open the possibility to create other safeguards. the first issue the new law addresses the determination of persons who have legal capacity. the legislative decree eliminates any ground for guardianship based on disabilities. however, restrictions on legal capacity remain. five sets of people will still be subject to guardianship: habitual drunkards, drug addicts, persons with criminal convictions, bad administrators and spendthrifts. while these sets of people were always subject to guardianship, the legislative decree added another ground: persons in a coma without a previously appointed supported decision-making system. in order to clarify some definitions, i will briefly state that bad administrators are those who have lost more than half of their assets due to bad administration, and prodigals are those who have spent most of their money so as to endanger their own existence or the ones dependent on them. the categories that have been removed are people who are “mentally retarded”24 and “people with mental impairment that does not allow them to express their free will”, both of which were directed towards persons with disabilities. the multi-party bill had proposed the elimination of all of restrictions on legal capacity. however, the legislative decree ultimately eliminated only those guardianships 23 the code referred to persons with intellectual and psychosocial disabilities as “mentally retarded”, “incapable of discernment” and people with “mental deterioration that does not allow them to freely express their will”. 24 “retarded” is usually considered an insult to persons with intellectual disabilities. in united states, it may even amount to hate speech. on 2010, president obama signed into law pub. l. 111-256, usually known as rosa’s law. said statute substitutes the terms “intellectual disability” and “individual with intellectual disability” for “mental retardation” and “mentally retarded” in all federal health, education and labor policy statutes, due to the stigma associated to these terms. however, it is the exact translation of the term in spanish. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 163 renato antonio constantino caycho directly related to disability.25 this has been criticized because some of the remaining reasons could have an adverse impact on persons with disabilities. persons with disabilities could have episodes of addiction that could lead others to classify them as “habitual drunkards” or a “drug addict”. a person with disability who spends a lot of money or has a gambling addiction could also be classified as a “bad administrator” or a “spendthrift”. the next question that arises is whether people who currently have guardians, will automatically have legal capacity with the publication of the reform. during the bill’s negotiations, this was a highly discussed topic: is it really possible to restore legal capacity via a law? what happens if someone really needs a strong support that is very similar to a guardianship? the decree decided to preserve existing guardianships. this probably has a lot to do with the disruptive effect that the total elimination of guardianships could have in the certainty of legal transactions. however, it is interesting to note that there currently are guardianships with no clear legal basis in peru. as the people under guardianship age, these should naturally become extinct from the system. also, the existing guardianships have been dealt with in two ways. the first path derives from legislative decree 1384 – the decree that implemented the reform. according to its norms, any party can request the reversal of the interdiction of persons with disabilities, issued prior to the entry into force of the reform, to be substituted by the designation of supports and safeguards.26 the article allows for any party to request a reversal, not necessarily someone close to the person with a disability or someone with a legitimate interest. another interesting issue is the consequences of the reversal. even though the logical consequence would have been the reversal of the guardianship, the decree opted for the transformation of a guardianship regime into a supported decision-making regime. this means that guardianship will not be immediately overturned, but rather the person in question will have to go through a process designed to provide supports or safeguards. the decree was not clear on what would happen if the person does not desire supports or safeguards. however, the judiciary’s transition rules 046-2019-ce-pj27 state that the person has the right to reject supports and safeguards. the second way to deal with current guardianships was proposed in 2019, through the judiciary’s transition rules 046-2019-ce-pj. according to these rules, judges have the duty to promote the renewal of proceedings to revert or transform guardianship rulings 25 the article in question reads as follows: “article 564.persons subject to curatorship. the persons referred to in article 44 paragraphs 4, 5, 6, 7 and 8 are subjected to curatorship.” (own translation). 26 the second final supplementary provision reads as follows: “second. restoration of the capacity to act of the interdicted persons. any person can request the reversal of the interdiction of persons with disabilities, issued prior to the entry into force of this law, by the designation of supports and safeguards.” (own translation). 27 article 3.2.d of the administrative resolution, published on february 12th 2019, reads as follows: “in case the person with disability indicates that he/she does not require supports, the legal capacity will be reinstituted, leaving the guardianship and the appointment of the guardian without effect and concluding the process.” (own translation). resolución administrativa 046-2019-ce-pj. aprueban el “reglamento de transición al sistema de apoyos en observancia al modelo social de la discapacidad”. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 164 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law or procedures. the transformation of a guardianship ruling or procedure into a procedure to designate supports can only happen with the person’s consent, except in the cases of compulsory designation of supports. this decree also deals with on-going guardianship processes. when it comes to these, judges are ordered to transform these to supports and safeguard designation processes if the person so wishes or cease proceedings if the person does not wish to appoint supports.28 in conclusion, even with the reform, it is possible that some people with disabilities will remain under guardianship and that some will have guardianships imposed on them in the future for reasons that may have a disproportionate impact on persons with disabilities. it is critical to clearly assess the disproportionate impact of certain regulations on guardianship that are not directly related to disability. another concern to address is the best solution for existing guardianships. the complete and immediate elimination may be a complicated objective. however, it will be interesting to see what replacements for guardianship will arise and whether a general response could be applicable to all (or most). another important aspect are liability rules regarding the supporter or supporters. the civil code 1984 now states that supporters are not directly liable for the acts of the person that receives the support.29 however, a person with a disability will be able to make a claim against their supports if they believe they have been ill advised on an issue. we will touch on the concept of “ill advised” in the following sections. here, it is important to note that the referred article does not establish a standard under which supporters would be held liable. the article regarding liability mentions the “intent or fault” standard, but only for the supporters of persons in coma. therefore, there is no clear standard to evaluate whether a claim against a supporter would be valid in other cases. would the “intent or fault” standard still be applicable? how should the standard be applied? should the standard be objective and, therefore, based on a definite set of rules and principles applicable to all persons providing support? or should it be subjective and, therefore, different supporters could be liable in different ways, accounting for their particular circumstances? in that case, for example, a lawyer providing support would have a different standard of liability from that of a person with no formal education. judges in a diverse country like peru should probably take into account the context and characteristics of a person before establishing any liability. thus, i am in favor of a subjective approach in this matter. 28 the transitional complementary provision reads as follows: “first.transition to the system of supports and safeguards: the judge transforms the following processes into one of supports and safeguards: […] b) those ongoing proceedings of interdiction, initiated prior to the entry into force of this law. in these cases, the processing of the proceedings is suspended and the rules established in chapter four to title ii of the fourth section of book iii of the civil code apply. the executive council of the judiciary establishes the rules and procedures necessary for the correct functioning of the transition to the system of support in mandatory compliance with the social model of disability.” (own translation) 29 the article in question reads as follows: “article 1976-a.responsibility of the person with support. the person who receives support is responsible for their decisions, including those made with such support, with the right to make a claim against them. persons included in article 44 provision 9 are not responsible for decisions taken with judicially designated support that were carried out with intent or fault.” the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 165 renato antonio constantino caycho 4. support in the reform the term support in the context of supported decision-making can mean many things.30 it can mean accessibility measures for some people, or accommodations regarding time to decide. but it usually means mechanisms that help people with disabilities to arrive to a decision or to communicate such decision. for example, they can include: “formalized support for decision-making; shared or co-decision-making; appointing a representative to make decisions; and forms of advance planning such as advance directives and ulysses directives” (del villar, 2015, p. 189). in most cases, people will rely on supported decision making. dinerstein defines this as: “a series of relationships, practices, arrangements, and agreements, of more or less formality and intensity, designed to assist an individual with a disability to make and communicate to others decisions about the individual’s life. some of the above alternatives to guardianship could be part of a supported decision-making regime, though, to the extent they involve the individual with a disability identifying someone else as authorized to speak for him or her, they can move into a form of substituted decision-making (albeit one that is less restrictive of the individual’s liberty than guardianship). a purer form of supported decision-making would rely on peer support (for example, ex-users of psychiatric services for people with psycho-social disabilities), community support networks and personal assistance, so-called natural supports (family, friends), or representatives (pursuant to a representation agreement) to speak with, rather than for, the individual with a disability” (dinerstein, 2012, p. 10). thus, succinctly, supported decision making can help a person with disability to “(a) obtain and understand information, (b) evaluate the possible alternatives and consequences of a decision, (c) express and communicate a decision, and/or (d) implement a decision.” (devandas, 2017, para. 41). undoubtedly, one of the big triumphs of this reform is the recognition of supports for the exercise of legal capacity.31 we must note that the definition of supports employed 30 the text of article 12(3) reads as follows: “states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. 31 the text of article 659-b of the peruvian civil code 1984 now reads as follows: “supports are forms of assistance freely chosen by a person of legal age to facilitate the exercise of their rights, including support in communication, in the understanding of legal acts and their consequences, and the expression and interpretation of the will of the one who requires the support. the support has no powers of representation except in cases where this is expressly established by decision of the person in need of support or by the judge in the case of article 659-e. when the support requires interpreting the will of the person who is being assisted, the criterion of the best interpretation of the will applies, taking into account the life trajectory of the person, previous expressions of will in similar contexts, the information provided by trusted people of the assisted person, the consideration of their preferences and any other consideration relevant to the specific case.” the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 166 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law in crpd committee’s general comment 1 was too broad and did not help states on how to legislate their implementation. the peruvian decree overcomes this problem by indicating that supports are “forms of assistance freely chosen by a person of legal age to facilitate the exercise of their rights, including support in communication, in the understanding of legal acts and their consequences, and the expression and interpretation of the will of the one who requires the support” (article 659-b). in this section we will try to provide some insight on how supports work within this reform. the decree states that the role of a support “can fall on one or more natural persons, public institutions or non-profit legal entities, specialized both in the matter and duly registered” (article 659-c). this means that support can also be provided by an institution, given that it is a non-profit institution. it is both interesting and important that enterprises have not been allowed to offer “decision-making support services”. it is not clear why this should not be possible, especially when peruvian legislation, as i will explain later, has not developed provisions regarding conflicts of interest in this matter. in accordance with crpd committee’s general comment 1, the decree does not allow the imposition of supports in most cases (2014, para. 19). however, this may create some complex situations. what would happen if a person needs a support to understand certain contracts but does not want one? should that person be entitled to the “dignity of risk” understanding? (gooding, 2013, p. 435-436) that concept explains that persons with disabilities have to be allowed to make risky decisions because it is part of all human beings’ dignity and self-realization. for these situations, i will provide some ideas about safeguards below. 5. the exceptional case of judicially designated supporters one of the strongest arguments against the reform was based on the “difficult cases”. this is how some people in the parliament called persons with severe impairments that made understanding or communication almost impossible. for those cases, the reform included article 659-e. this article deals with persons who cannot express their will even “after having made real, considerable and pertinent efforts to obtain an expression of will from the person and having provided them with measures of accessibility and reasonable accommodations” (article 659-e, own translation). in those cases, any third party can petition a judge to designate supports. in these cases, unlike regular cases where the person with disability will make the decision, the judge will design and designate the supports. according to the decree, this exceptional judicial designation can only be applied after the judge has “made real, considerable and pertinent efforts to obtain an expression of will from the person and having provided them with measures of accessibility and reasonable accommodations” (article 659-e, own translation). in selecting the supporter(s) the judge must take “into account the relationship of cohabitation, trust, friendship, care or kinship that exists between them and the person that requires support (article 659-e, own translation). one valid question follows from this norm: can a “functional approach” test be justified in these situations, in order to know what accommodations or measures of the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 167 renato antonio constantino caycho accessibility a person would need? asking this question does not ignore that the functional approach is not free of criticism. as series has said, the approach may be arbitrary, invasive and, mainly, “will penalize those with impairments which affect their communication or interpersonal functioning, or those merely lacking self-confidence or trust in their capacity assessor” (series, 2014). therefore, it is important to engage and analyze the functionality of the person with disability, not to eliminate their legal capacity but to be certain of what kind of supports are most appropriate in each particular case. one might argue that the person providing support for someone who does not communicate is, in practical terms, a ‘substitute decision-making regime’. to respond to the argument, we have to assess where the judicially appointed support systems fall within the scope of the crpd committee’s definition of substitute decision-making. the committee’s definition of substitute decision making incorporates three elements: (i) removal of legal capacity; (ii) the appointment of a substitute decision maker by a third party; or (iii) the decisions are made based on the “best interest” of the person instead of their will and preferences (2014, para. 27).32 however, the crpd committee has not clearly established if each of these conditions, on its own, is enough for a situation to qualify as a substitute decision making situation or there would have to be at least two for this to happen (martin et. al., 2016, pp. 63-66). in the peruvian case, the provisions of articles 659-d and 659-e33 would match the first two elements mentioned. applying these provisions would mean removing legal capacity and leaving the appointment in the hands of a judge, but the decisions will still be made based on the will and preferences of the person with disability. this means that, if the three conditions have to be cumulatively met in order for a regime to qualify as substitute decision-making, the peruvian reform has eliminated these. but if only one or two conditions have to be met in order for a situation to qualify as such, it is clear that the peruvian reform, and probably any future reform in the world, will keep substitute decision-making regimes. under that interpretation, even emergency health care would 32 see also: crpd committee. 2014. general comment no. 1 (2014) article 12: equal recognition before the law. eleventh session, 19 may 2014. corrigendum on paragraph 27. crdp/c/gc/1/corr.1. 33 the provisions in the articles mentioned read as follows: “article 659-d.designation of supports. the person of legal age who requires support for the exercise of their legal capacity can appoint their support before a notary or a competent judge.” “artículo 659–e.exception for the judicial appointment of supports. a judge can, exceptionally, appoint the necessary supports for persons with disabilities who cannot manifest their will and for those persons with restricted juridical capacity, in conformity with article 44, numeral 9. this measure will be justified after having placed real, considerable and pertinent efforts in place to obtain a manifestation of will from the person, having used measures of accessibility and reasonable adjustments, and when it is necessary for the exercise or protection of said person’s rights. the judge determines the person o persons to be appointed as supports considering the existing relationships of cohabitation, trust, friendship or parentage between the persons to be appointed and the person who needs supports. likewise, the judge determines the term, reach and responsibilities of the supports. in all cases, the judge must adopt the necessary diligences to obtain the best possible interpretation of the will and the preferences of the person in question and consider their life trajectory. persons who have been convicted of sexual or domestic violence cannot appointed as supports. the judicial process to appoint supports can exceptionally be initiated by any person with legal capacity.” (own translation). the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 168 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law amount to substitute decision-making. as some have said, that approach is “too extreme” (martin and gurbai, 2019, p. 118) and, thus, inadmissible. 6. safeguards in the reform safeguards are one of the least developed issues in legal capacity literature. even the crpd committee’s general comment devoted only three paragraphs to this aspect (2019, para. 20-22). the peruvian decree defines safeguards as “measures to guarantee respect for the rights, will and preferences of the person receiving support, prevent abuse and undue influence on the part of the person providing such support as well as avoiding harm or putting at risk the rights of the persons assisted” (article 659-g, author’s translation). on the other hand, crpd’s article 12.4 indicates that safeguards must ensure that supports “respect the rights, will and preferences of the person, are free of conflict of interest and undue influence”. table no. 1 sums up the differences between article 12’s provisions, and the terms of the reform: table no. 1: comparison between safeguards according to crpd and the peruvian reform decree. topic safeguards according to article 12.4 safeguards in the reform aim prevent abuse in accordance with international human rights law “prevent abuse” (art. 659-e) persons subject to safeguards any person receiving support can only be proposed by the person receiving support or in the case of judicially-mandated support (art. 659-e) limits to measures relating to the exercise of legal capacity respect the rights, will and preferences of the person. respect “for the rights, will and preferences of the person receiving support” (art. 659-e) and “avoiding harm or putting at risk the rights of the persons assisted.” (art. 659-e) limits regarding the person providing the support they have to be free of conflict of interest and undue influence. safeguards prevent undue influence (art. 659-e) persons convicted of family violence or sexual violence cannot be supports judicial limits proportional and tailored to the person’s circumstances, apply for the shortest time possible at least time limits judicial review subject to regular review by a competent, independent and impartial authority or judicial body. judges review the safeguards proportionality the safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. no reference the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 169 renato antonio constantino caycho one of the main differences has to do with the procedures through which safeguards are appointed. according to the reform, judges can only impose safeguards on persons subject to the exceptional designation of supports by judges of the article 659-e. that norm is designed only for when a person with a disability cannot express their will at all, so there is an evident need to designate a support. however, if the peruvian reform is to comply with international standards, safeguards should apply to any person receiving support. in the opinion of martínez-pujalte, the peruvian reform fails to adequately prevent “manipulation, abuse or undue influence” (2019, p. 18). even though he recognizes this pitfall of the reform, he argues that this is the “first regulation of legal capacity compliant with the convention” (2019, p. 15). i have to disagree with this last point. peru’s regulation may be the regulation closest to compliance all around the globe, but if it does not comply with article 12.4, then we cannot say that it is fully crpd compliant. just recently, legislative decree 1384’s statute 016-2019-mimp was enacted.34 this document provides little guidance on the application of the reform. regarding safeguards, there is an open-ended list of measures that can be taken like: providing accountability for the administration of property, audits, unexpected supervision, unexpected visits, hearings with the supporter or other persons close to the person receiving support and requiring information to public or private institutions (article 21). it does not seem as enough, especially if they can only be imposed in the exceptional cases. additionally, these measures are ex-post. they do not prevent the abuse from happening. they may alert the judge about it. these creates two problems. first, safeguards should create ex-ante protections. this way, a support should be impeded to advise in transactions that may benefit her. a support should also have clear indications if she is going to make a manifestation of will: not selling under certain price, for example. the second problem that arises is that the ex-post measures do not specify how will they engage with juridical acts. if a judge notices an undue influence, there is no clear way if the juridical act can be nullified or not. it is also important to note that one of the safeguards that has been imposed by the reform has to do with the history of the supporter. by virtue of article 659-e of the reformed civil code 1984, persons who have been convicted for family violence or sexual violence cannot be designated as supporters.35 this is inconsistent with the idea that anyone requesting supports has the right to choose the “form, identity, scope, duration and number of supports”.36 in my opinion, however, a judge can validly limit 34 the statute was enacted via decreto supremo 016-2019-mimp, decreto supremo que aprueba el reglamento que regula el otorgamiento de ajustes razonables, designación de apoyos e implementación de salvaguardias para el ejercicio de la capacidad jurídica de las personas con discapacidad, published on august 25th 2019. 35 the relevant portion of the article reads as follows: “[…] persons convicted of family violence or persons convicted of sexual violence cannot be designated as supporters. […]”. (own translation). 36 the relevant portion of the article reads as follows: “the person requesting the supports determines their form, identity, scope, duration and number of supports. the support can fall on one or more natural persons, public institutions or non-profit legal entities, specialized both in the matter and duly registered.” (own translation). the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 170 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law said right. in many cases, the prohibition of persons convicted for family violence or sexual violence would be enough, but in other cases it will not be. one example would the case of persons convicted for embezzlement. in my opinion, the whole idea of safeguard seems to relate to a kind of paternalism that would be justified to avoid the abuse. this would allow the judge to decide who can and cannot be a provider of support. in any case, what will be necessary is for judges to develop a clear jurisprudence on how to implement these safeguards. this jurisprudence will have to consider the question that piers gooding posed: “how can the legal regulation of people’s intimate lives be kept to an absolute minimum while still retaining effective safeguards against abuse?” (2013, p. 442). 7. the reform in current private law theory the experience of the reform was complicated because only a few private law academics or practitioners participated in the debate on legal capacity.37 i think that many of them could not conceive an approach to supported decision making, but i also think that many of them failed to realize how article 12 and the legal capacity reform affect the traditional theory of the juridical act. 7.1. the juridical act in private law in civil law jurisdictions, there is a general theory of the juridical act (schmidt, 2012, p. 1016). according to private law doctrine, the essence of the juridical act is a “declaration by one or more parties intended to create a legal effect” (schmidt, 2012, p. 1016). this theory encompasses any expression of will that creates a legal relationship: contract, marriage, will, recognition of child, etc. thus, will is a key element in understanding all of private law in civil law jurisdictions. however, will can be understood in different ways. according to “savigny’s will theory, the basis for the validity is the intention of the person making the declaration” (schmidt, 2012, p. 1017). this means that if the intention was deficiently expressed (for any reason), the person cannot be bound by the declaration. this led to criticism, as it is dangerous when thinking about the level of legal certainty required for commercial affairs. on the other hand, the theory of declaration analyzes will based on the level of reliance provided by the person receiving the declaration. according to oliver wendell holmes, “the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties’ having meant the same things but on their having said the same thing” (1897, p. 7). as i will develop later, this theory can be of the utmost importance when dealing with the declaration of will of a person with disabilities. what should be taken into account when analyzing a contract? the real will of the person or the declaration that he or she made? and what effect does that have in persons with disabilities? 37 one of the few examples i remember is an event at the congress with the participation of professors leysser león and carlos fernández sessarego. see: (congreso de la república de perú, 2017) the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 171 renato antonio constantino caycho 7.2. some examples of the interaction of the doctrine of juridical act and article 12 academics have yet to analyze how the theory of juridical act will engage with the provisions of article 12. for now, it is safe to say that a juridical act is an exercise of legal capacity and active legal capacity is the ability to exercise juridical acts.38 this ability needs to be inclusive to persons with disabilities. in the following pages, i offer a glimpse on what issues may arise and some proposals to overcome them. 7.2.1. error according to juridical act theory, when there is an essential error, there is no agreement, and therefore, there is no juridical act (sefton-green, 2005, p. 6). what would happen with this theory in cases regarding persons with disabilities? it is a fact that many legal theories were designed excluding persons with disabilities (kittay, 2003). nowadays, there is an urgent need to reassess those theories to make them disability inclusive, and to make them respond to the issues that will arise from implementing article 12 compliant systems in civil law jurisdictions. what is an error? according to schermaier, at least in european continental jurisdictions, an error “enables the mistaken party to free himself from a given declaration of intent, a promise or a contract provided certain conditions have been fulfilled” (seftongreen, 2005, p. 39). in peru, in order for an error to make a contract voidable, it must be essential and must be recognizable by the other party. this can lead to complex situations with persons with disabilities. consider the following example:39 jose has a mild intellectual disability and paranoia (usually not visible tor most people) and loves comic books and characters. he enters a comic book store, sees a golden gauntlet and exclaims “the infinity gauntlet!”. he asks the salesperson if this is the real infinity gauntlet from the marvel comics. she says it is, because she thinks he is referring to whether it is a fake or an original piece. he decides to buy it, thinking it is the real infinity gauntlet. later, he talks to his brother and realizes this is not a “real” infinity gauntlet. what is the correct legal response in this case, with regards both to private law theory and the social model of disability? did the clerk have a duty to inform the customer that the product was not, stricto sensu, the literally real infinity gauntlet? could she have known what jose understood as “real”? could jose receive a refund for his purchase? in this situation, the debate between savigny and holmes’s views becomes relevant. which will would be relevant to the law – the authentic will, or the declared will? 38 this idea was proposed to me by wayne martin. 39 i arrived at the idea for this hypothetical case with the input of saulo galicia. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 172 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law let us add further difficulty to this case. peru’s legislative decree 1384 provides that supporters have to be registered in public records.40 this means that anybody will have access to this information. so, let us imagine that, in the case, the clerk notices the disability, reviews the public record and finds that this person has supporters. is the person free to use them when he wants to? can the clerk deny the sale on the grounds that the client has a support and require him to use it? this could be important if we consider that a mistake could lead to the annulment of the sale. for example, in the case of the proposed reform to the hungarian civil code (not in force), the support “shall attach his/her signature to a legal declaration to confirm that s/he was present at the making of such a legal statement, and he or she provided assistance [sic] the supported person”. that would definitely be an imposition, but some might feel it is acceptable so long as it protects the validity of the agreement. in the same pace, the current colombian reform has also determined the need of the supporter to provide the support she was intended to give. however, the final decision remains in the person with disability.41 actors in the legal system lawyers, notaries, salesclerks or police officers have few clues on what to do in cases of persons that need support.42 the un crpd committee has stated that, in order to comply with article 12, reforms must provide a “mechanism for third parties to challenge the action of a support person if they believe that the support person is not acting in accordance with the will and preferences of the person concerned” (2014, para. 29.d). in the peruvian reform, there is no provision on how third parties must act if they suspect a supporter is not correctly fulfilling his or her duties, much less a mechanism for them to challenge said actions. on this topic, it is also important to acknowledge that notaries will have to make significant efforts to adapt their practice to the reform. although notaries are not, stricto sensu, part of the juridical act, they do fulfill a crucial role in certifying the “capacity, 40 the relevant article reads as follows: “article 2030. registered acts and resolutions. registered in this registry are: […] 1.resolutions or public deeds in which the designation of supports and safeguards of natural persons is established or modified. […] 9. resolutions that designate the guardian or the support and those that revoke them. […] 41 article 19 of the act 1996 of 2019. support agreements as a requirement for the validity of juridical acts. the person entitled to perform a juridical act with a valid and current support agreement for the celebration of specific juridical acts, must use the designated supports when celebrating the act, as a requirement of its validity. in consequence, if the person entitled to perform the juridical acts carries out the juridical acts specified in the support agreement, without using the stipulated supports, this will be cause for relative invalidity of the act, following the general rules of the civil legal regime. paragraph. the above disposition cannot be interpreted as an obligation of the person entitled to perform a juridical act to act according to the will of the person or persons providing support. in accordance to article 4, numeral 3 of this law, supports must respect the will and preferences of the person entitled to perform the juridical act, as well as respect their right to take risks and make mistakes. 42 it is important to note that crpd article 13(2) reads as follows: “in order to help to ensure effective access to justice for persons with disabilities, states parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.” the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 173 renato antonio constantino caycho freedom and knowledge” of the parties to the act (article 54.h of notary act, legislative decree 1049 2008). it is not clear how notaries will address the abilities of a person with disability in this new context. nowadays, capacity cannot be grounds for the denial of the act of a person with a disability. but following this premise, how should we assess freedom to choose? what happens if a notary suspects that a person with disability is acting under undue influence? should they refuse to certify the act? what would the consequences be? i will explore some of these situations in the ‘undue influence’ section of this document. as mentioned before, we need to reassess every general theory of the law in light of the social model of disability. by disregarding the functional approach for granting legal capacity, the crpd committee has disregarded some traditional tenets of private law. even though we may disagree with the premise, many legal institutions work on the presumption of a certain “regular” brain functionality. the doctrine of error is useful insofar as it allows a person to distance herself from something “they may not have intended” (series, 2014). 7.2.2. conflict of interest article 12.4’s standard creates a significant problem when assessing crpd compliance of the peruvian reform, because the decree does not include any provisions with regards to “conflict of interest”. i hold that a conflict of interest happens as a given situation when a person’s interest may interfere with their duties (martin et. al., 2016, p. 49). usually, lawyers are tempted to solve conflict of interest by eliminating or disclosing them. however, that is not the standard of article 12.4. in fact, if we follow article 12.4, the supporter’s duty should be to manage the conflict of interest, not so to avoid it (martin et. al., 2016, p. 49). how can we ensure that the supporters are “free of conflict of interest”, when they are usually close to the person with a disability? let us present an example: barbara has a mild intellectual disability and appoints her mother as her support. she does not think of any need for safeguard, especially because she is not quite sure about their necessity or convenience. however, a few months later she opens a bank account and the clerk offers her the possibility to sign an insurance contract in favor of a third party. when she asks what this means exactly, the clerk says it will give money to a person of her choice if something happens to her. later on, she decides that she wants to write her will, so she goes to a notary. in peru, the civil code 1974 requires a witness to the will, who cannot also be a beneficiary of the will. barbara wants to leave her mother some money. in both cases, regarding the insurance and the will, can barbara’s mother be her supporter? article12.4 would seem to indicate that she could not be a supporter in these situations. the decree says that safeguards only applies if a person asks for them, which makes no sense regarding the obligations of article 12.4. now, if a judge has not established any safeguards regarding conflict of interest, what should the clerk or the notary do? using the decree, what should they do if they believe that the conflict of interest has led to abuse or undue influence? in this particular case, the decree seems to not comply adequately with the standard of article 12.4. then again, there are no clear instructions the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 174 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law for the legal community on how to deal with the situation when they detect a support not working as it should. for example, using the previous example: under what circumstances would the clerk have to act? one standard could be that a clerk –or any third party– has to act “in any situation that arises a conflict of interest”. that could create extreme difficulties for persons with disabilities in signing contracts, because supports are usually relatives or close friends. another possibility is that the sole existence of the conflict of interest creates the duty of the third party to act. we could construct a two-fold standard: a third party has the duty to avoid the juridical act when the support of the person with disability has a conflict of interest and the decision seems to create an unfair advantage for the supporter that goes against the rights of the person with a disability. in the previous case, the conflict of interest would be irrelevant as it does not affect barbara’s rights. 7.2.3. undue influence common law has best developed the concept of undue influence. according to common law doctrine, undue influence is the use of any act of persuasion in order to overcome the free will and the judgment of another person (lehman and phelps, 2005). california statutory law provides three elements to be considered regarding undue influence: (i) vulnerability of the victim, (ii) the influencer’s apparent authority, (iii) the actions or tactics used by the influencer and (iv) the equity of the result (section 15610.70 of the welfare and institutions code of california). i will propose another example that demonstrates the difficulty in addressing this issue. marina is person with a mild intellectual disability. she has two brothers: alan and hugo. hugo has two children. both alan and hugo are supports for marina. however, marina talks to hugo more often because she lives near his house. one day, hugo encourages marina to write a will, telling her that it would be really useful for his children (her niece and nephew) if she could leave things for them. she likes this idea and asks if he knows any lawyer who could help. hugo hires a lawyer and marina writes a will benefiting hugo’s children. the will explicitly states: “i came up with the idea of leaving all my things to my niece and nephew when my brother told me how useful that would be for their education”. when alan finds out, after marina passes away, he seeks the nullification of the will. should his claim be successful? two problems come to mind when dealing with this situation. the first one has to with identifying situations that would amount to undue influence, and when undue influence should be grounds for an annulment or nullification of the juridical act. i propose that, in order to ask for a nullification, two criteria must be met: there has to be undue influence and such undue influence must damage the rights of the person.43 i base this proposal on the case of strickland v. washington.44 in that case, the united states supreme court held that a defendant would have to establish two propositions to 43 this idea arose in conversation with robert dinerstein. 44 strickland v. washington, 466 u.s. 668 (1984). the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 175 renato antonio constantino caycho demonstrate that legal counsel had been so defective that it would amount to ineffective assistance of counsel. according to the us supreme court, “first, the defendant must show that counsel’s performance was deficient. […] second, the defendant must show that the deficient performance prejudiced the defense” (1984, para. 687). for our case, i would argue that, in order for undue influence to be a ground for annulment it has to meet two criteria: first, there has to be an undue influence that vitiates the real will of the person. second, there has to be an actual damage to the rights of the person with disabilities. this would comply with the idea of article 12.4. the first criterion protects the will and preferences, the second one, rights. for the first criterion, i will use what george szmukler called the “spectrum of treatment pressures” (2018, p. 151). even though they were originally designed for treatment, i find them quite useful for these situations. the spectrum includes persuasion, interpersonal leverage, inducement, threats and compulsion. compulsion and threats would be ground for the nullification of the juridical act by themselves, so it is not necessary to address them regarding undue influence. however, the three remaining items need to be carefully analyzed. persuasion goes beyond the mere facts and tries to “appeal to reason (and to some degree to the emotions)” (szmukler, 2018, p. 154). however, it is also a part of common human relationships. we usually want to convince others around us that what we think is right and they should follow our advice. thus, i would argue that, prima facie, persuasion would not amount to undue influence, but that that may change if persuasive techniques are applied constantly and consistently. in the case presented, persuasion was what hugo used to convince marina. however, that action does not seem like an imposition of hugo’s will over marina’s. the situation would be much different if hugo had had a plan to convince her and would try to impose this idea every time he saw marina. interpersonal leverage means using a relationship as a source of pressure (szmukler, 2018, p. 155). comments such as “if you don’t do this, i will be very sad” and actions that reflect the same intent would amount to interpersonal leverage. once again, prima facie, this does not look like undue influence by itself. however, if comments like these are made on a regular basis, they certainly might amount to it. finally, offers or inducements would be considered a form of undue influence, since they do not reflect the real will of the person. of course, this is open for discussion. persons without disabilities change their opinions all the time. the second step would be to analyze whether or not there was any damage. in the case of marina (and any other last will case), there is no ground for annulment. whoever she had chosen as an heir made no difference to her rights, since the transfer of goods happens postmortem. therefore, none of her rights are affected. 7.3. preliminary conclusions both undue influence and conflict of interest raise the question of when should that be grounds for a request to nullify a will or a contract? i have provided some guidelines the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 176 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law when those situations arise. for these situations, private law has to change to adapt to the recognition of legal capacity of persons with disabilities. this recognition cannot be understood as an opportunity to “abandon or ignore people with disabilities who may be vulnerable to violence, abuse and exploitation” (arstein-kerslake and flynn, 2016, p. 479). it has to be understood as an opportunity change the current understanding of certain core issues in private law, like the concept of will. that exercise also has to include the creation of safeguards that protect the person from different situations. some of them will be an expansion of previous institutions, like the error. but some others may be new figures that need to be drafted in a way that is coherent with the rest of private law. that is the case of undue influence and conflicts of interest. 8. conclusions as others have stated, the journey of legal capacity of persons with disabilities has just begun (arstein-kerslake and flynn, 2016, p. 471). there is no clear map, but we know we have a goal. so, we have to give it a try. states are trying to change their laws, but this process is quite difficult. there are no clear guidelines on how to reform a civil code 1984. lawyers who specialize in private law (property, contracts and torts) are usually not keen to have a dialogue with human rights or disability lawyers. many judges and notaries are against the recognition of legal capacity of persons with disabilities.45 but, against all odds, reforms happen. and it happened in peru. i was a privileged witness to the process. i have been able to talk to judges, notaries, activists, relatives of persons with disabilities, academics and policy makers on this issue. i believe we need to be proud of this advancement. however, as academics, we have the urge to provide a coherent framework for understanding. that is something we need to come up with. academics are trying to deliver disability-neutral understandings for consent (brosnan and flynn, 2017), state intervention (flynn & arstein-kerslake, 2017; gooding & flynn, 2015)) and care and autonomy (feder kittay, 2005, p. 8). lawyers and academics from the civil law (continental) tradition need to think about how the recognition of the legal capacity of persons with disability and the provision of support alter our view on the juridical act. we need to create a new understanding for will in our legal system that allows people with disabilities to marry, sign contracts, make a will or be part of an association. but that same understanding must enable people with disabilities to claim they made a mistake or that their will was coerced or under undue influence. finally, there is a crucial role for judges. they will be the ones in charge of drawing lines and applying the provisions of the reform. they will also be in charge of filling in the gaps they may find in the legislation. it is important to note that, in some other jurisdictions, judges have understood supports as a new name for guardian (iglesias frecha, 2017). therefore, there must be a public policy on how to apply the reform,how to solve the issues that were not addressed in the legislation and on how to evaluate its implementation. finally, i would like to recall that, around a hundred years ago, andré 45 i cannot provide specific data for this statement. however, i have participated in at least eight training sessions for judges. the auditorium is usually filled with critics of the reform. the age of human rights journal, 14 (june 2020) pp. 155-180 issn: 2340-9592 doi: 10.17561/tahrj.v14.5482 177 renato antonio constantino caycho breton said: “it is not the fear of madness which will oblige us to leave the flag of imagination furled” (breton, 1972). we need to embrace that feeling. the consequences of the inclusion of madness and disability in private law are not to be feared. they should help us reframe our understanding of our will, our vulnerability and our humanity. references arstein-kerslake, a. and flynn, e. 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(2018). selección de jurisprudencia del tribunal constitucional del perú en materia de discapacidad desde la entrada en vigor de la convención sobre los derechos de las personas con discapacidad. revista latinoamericana en discapacidad, sociedad y derechos humanos 2, 185-204. http://redcdpd.net/revista/index.php/revista/article/download/120/67 (last accessed on october 10th, 2019). received: january 31st 2020 accepted: april 12th 2020 the flag of imagination: peru’s new reform on legal capacity for persons with intellectual and psychosocial disabilities and the need for new understandings in private law abstract keywords summary 1. introduction 2. previous developments regarding legal capacity of persons with disabilities in international human rights law and peruvian law 2.1. a brief reference to legal capacity in international human rights law. 2.2. a brief reference to the legal context in peru 2.3. legislative developments 2.4. judicial developments 3. legal capacity in the reform 4. support in the reform 5. the exceptional case of judicially designated supporters 6. safeguards in the reform 7. the reform in current private law theory 7.1. the juridical act in private law 7.2. some examples of the interaction of the doctrine of juridical act and article 12 7.2.1. error 7.2.2. conflict of interest 7.2.3. undue influence 7.3. preliminary conclusions 8. conclusions references the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 75 knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach1 cristina de la cruz-ayuso2 abstract: this article asks about the current modes of production in human rights research and how they are (or may be) determined by the structures where that knowledge is generated. these questions will be answered by looking at the results of a preliminary study on the reception and subsequent institutionalisation of studies on human rights in stable structures that are dedicated to their research, training and dissemination in spanish universities. the starting hypothesis is that this institutionalisation causes conceptual, epistemological and methodological biases in the rationales for knowledge construction in the field of human rights that determine and hinder the interdisciplinary approach demanded by its study. interdisciplinarity has become a dominant aspect of human rights research. the question about how this feature is articulated and who articulates it in the academic institutional framework is pertinent in a field of knowledge that cannot avoid asymmetries in the production and circulation of knowledge. the results show that human rights research has been mainly institutionalised in stable university structures in spain within the field of legal sciences, with a clear predominance of the area of the philosophy of law. it can be concluded that this has been conditioned by the reception and subsequent development of the study of human rights in spain. while it has been found that the line developed by these centres and research groups has been consolidated and recognised, it can also be confirmed that their modes of knowledge production do not match the rationale of interdisciplinary research. these limitations are not just endogenous. there are some features of spanish institutional r&d&i culture that make interdisciplinary research on human rights difficult. keywords: human rights, epistemology, knowledge production, interdisciplinary, research, institutionalisation, academic structures. summary: i. how do we come to understand what we need to know about human rights? ii. what are the modes of knowledge production in human rights research? iii. how do (or can) the structures where knowledge about human rights is generated influence its modes of production? how do (or can) these structures relate to the modes of production of knowledge about human rights? iii.1. a brief mapping of the institutional structures for human rights research. iv. limitations and opportunities for the promotion of an interdisciplinary approach in human rights research. references. 1 the research leading to this publication was funded by the spanish ministry of economy as part of the research project entitled ‘complex inequality in plural societies: indicators for public policies’ [der201677711-p] and by the basque government through the financial support granted to the activities of research groups in the basque university system (it1224-19). 2 pedro arrupe human rights institute, university of deusto, spain (delacruz@deusto.es). cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 76 i. how do we come to understand what we need to know about human rights? how should human rights research be conducted? this question has not attracted much interest among the academic community, nor is it one of the usual or recurring themes of human rights epistemology (gerwith, 1984; claude, 2002). debate on this area has mainly focused on its interdisciplinary nature (hafner-burton, 2013; klein, 1990; 2010ª; gibbons et al, 2010), but it has barely delved into the rationales and modes of knowledge production that characterise human rights research (barry et al., 2008). consequently, academia has not reflected on the potential conceptual, epistemological and methodological biases involved in this type of research. is the usual mode of knowledge production in the field of human rights interdisciplinary in nature? this question may seem irrelevant considering the strong acceptance of the idea that interdisciplinarity3 is an inherent feature in the type of research that characterises the study of human rights (freeman, 2011; chandramohan and fallows, 2009). why? because we need to know many different things about human rights. appropriately addressing the challenges involved requires crossing the borders of the different disciplines that deal with human rights and working in environments which are open to interdisciplinary collaboration. so far, so obvious. however, ascertaining that there is an epistemological need in human rights research should not lead us to think that this is the usual mode of knowledge production. we need the study of human rights to be interdisciplinary, but is it really? human rights are at the centre of research in many fields such as law, philosophy, political science, anthropology and history, to name just a few. they are also at the core of the activities carried out by many organisations, social movements and institutions that are committed to their defence and responsible for their implementation. there is abundant research on issues directly related to human rights that has been conducted by groups composed of researchers from different areas. it would be unfair, therefore, not to recognise the collaborative efforts or dynamics that often take place in some contexts that deservedly place human rights studies at the heart of an interdisciplinary approach, both on a theoretical and a practical level. however, this tradition has been developed without an in-depth analysis of the demands and implications that the interdisciplinary nature of the study of human rights has on the processes of knowledge production. we usually resort to the various disciplines to take from them what we need to know about human 3 in this study the term interdisciplinarity will be used, but without delving into the wider debate about the scope and use of terms related to it, such as multidisciplinarity, pluridisciplinarity and transdisciplinarity. the choice of one or the other depends on each school (hirsch-hardon et al., 2008; haight and bidwell, 2016; huutoniemi et al., 2010). interdisciplinarity is often used to refer to a type of research that integrates perspectives, methodologies, concepts and/or techniques from two or more disciplines, or areas of specialised knowledge, in order to solve certain complex problems (klein 2008; 201 jacobs and frickel, 2009). ‘this interaction may range from simply communication of ideas to the mutual integration of organising concepts, methodology, procedures, epistemology, terminology, data and organisation of research and education in a fairly large field. an interdisciplinary group consists of people trained in different fields of knowledge (disciplines) with different concepts, methods, data and terms’ (apostel et al., 23-24). knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 77 rights. consequently, the way we come to understand them and the methods we use to study them are those that are epistemologically accepted and methodologically agreed upon within each individual discipline. each of the disciplines stands as a body of knowledge and a set of methods, theories and concepts shared by a community that has developed its own legitimising systems and is constituted around formal networks of practice, such as, for example, each discipline's scientific associations or scientific publications (ziman, 2000).4 all of this has a crucial role in shaping knowledge. the objective of interdisciplinary work is the construction or production of knowledge from a multiple perspective to provide solutions to complex problems. but its operating rationale necessarily involves the disciplines that participate in a specific study using their own epistemological and methodological frameworks. in the field of human rights research, this is often the way of working in academic research groups. teams are often comprised of researchers from different traditions and specialisms that come together to expand knowledge and address a specific research problem related to human rights. these researchers can only make their contributions by using the tools of their respective disciplines. the outputs tend to be a sum of concepts, not always well articulated, in which some stand out more than others depending on the way in which the data and the results of a study have been processed, discussed and interpreted. however, interdiscipline is not constructed as a discursive mix of different disciplinary approaches (klein 201 langford, 2016; jacobs and frickel, 2009). it is constructed from a common approach to human rights as a concrete object of study. therefore, a multidisciplinary work dynamic does not always allow for a suitable resolution of the problems that human rights face in practice. the question demands finding a way of articulating the language, methods and corpus of each discipline (frodeman et al, 2010; holley, 2009). this is what properly characterises an interdisciplinary approach; but in practice it is both complex and unnatural (geertz, 1980). the use of interdisciplinarity faces several problems related to the development of disciplines that go beyond the usual theoretical communication barriers that exist or may exist between them. interdisciplinarity clashes with the identity and recognition of 4 the large number of existing areas of knowledge was classified into a unesco nomenclature for fields of science and technology in 1973 and 1974 by the unesco division of science policy and the division of statistics on science and technology and adopted by the now-defunct scientific and technical research advisory commission in spain (comisión asesora de investigación científica y técnica). this classification was adopted by the ministry of science and technology in spain in 1983, by virtue of the resolution of 23 september 1983 (boe 14 october) . in this nomenclature human rights appeared as a subdiscipline (590601) dedicated to the activities of a discipline, political sociology (5906), belonging to the field of knowledge of political science. [source: ministry of science, innovation and universities of the government of spain (ministerio de ciencia, innovación y universidades del gobierno de españa). available at: http://www.ciencia.gob.es/portal/site/micinn/menuitem.8ce192e94ba842bea3bc811001432ea0/?vgnext oid=363ac9487fb02210vgnvcm1000001d04140arcrd&vgnextchannel=28fb282978ea0210vgnvcm 1000001034e20arcrd. last accessed on 10 may 2019]. http://www.ciencia.gob.es/portal/site/micinn/menuitem.8ce192e94ba842bea3bc811001432ea0/?vgnextoid=363ac9487fb02210vgnvcm1000001d04140arcrd&vgnextchannel=28fb282978ea0210vgnvcm1000001034e20arcrd http://www.ciencia.gob.es/portal/site/micinn/menuitem.8ce192e94ba842bea3bc811001432ea0/?vgnextoid=363ac9487fb02210vgnvcm1000001d04140arcrd&vgnextchannel=28fb282978ea0210vgnvcm1000001034e20arcrd http://www.ciencia.gob.es/portal/site/micinn/menuitem.8ce192e94ba842bea3bc811001432ea0/?vgnextoid=363ac9487fb02210vgnvcm1000001d04140arcrd&vgnextchannel=28fb282978ea0210vgnvcm1000001034e20arcrd cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 78 the autonomy of each discipline (frodeman, 2014; klein, 2010b, gumport and snydman, 2002; hafner-burton, 2013). and it is faced with problems that cannot be ignored, such as hegemonic approaches or approaches that delegitimise other knowledge; analytical fragmentation; inertia in the established research system which does not allow for or promote the flexibility required for interdisciplinarity to be appropriately applied; and the biased institutionalisation of human rights research in academic structures in which the legal sciences still clearly and unquestionably predominate (forsythe, 2017). this article asks about the current modes of production in human rights research and how they are (or may be) determined by the structures where that knowledge is generated. these questions will be answered based on the results of a preliminary study on the reception and subsequent institutionalisation of studies on human rights in stable structures that are dedicated to their research, training and dissemination in spanish universities. the starting hypothesis is that this institutionalisation causes conceptual, epistemological and methodological biases in the rationales for knowledge construction in the field of human rights that determine and hinder the interdisciplinary approach demanded by its study. interdisciplinarity has become a dominant aspect of human rights research. the question about how this feature is articulated and who articulates it in the academic institutional framework is pertinent in a field of knowledge that cannot avoid asymmetries in the production and circulation of knowledge. ii. what are the modes of knowledge production in human rights research? this question hides an aspiration that cannot really be satisfied due to the wide range of disciplines and specialisms that currently contribute to the study and implementation of human rights. and yet, addressing this question is not part of the objectives of this study. it is used here for its narrative eloquence, since it suggests the tensions inherent in human rights research without a need for over-explanations. these tensions constitute an important aspect of the problem linked to the limitations of the interdisciplinary approach to their study. there are different and varying ways of producing knowledge in human rights research. law, philosophy, history, anthropology and political science, among others, are disciplines that have contributed and expanded normative, conceptual, historiographic, empirical and discursive knowledge about human rights. in general, it can be said that human rights are a useful object of study and category of analysis for many disciplines, and that their interaction makes them more effective when it comes to finding thorough and correct solutions to the problems it poses (freeman, 2011). however, the dialogue and collaboration between them has revealed, on the one hand, a high level of disagreements and, on the other, serious epistemological and methodological difficulties in resolving them. human rights have been conceived on the basis of two separable, independent and totally detached components. this makes any attempts at interdisciplinarity in their study difficult. these components are the theory of human rights, in which a battle of ideas has knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 79 been fought about their nature and scope; and the method to apply them and make them effective, mainly in the most vulnerable contexts.5 the truth is that the different approaches to some specific human rights issues by each specialist discipline have generated tensions that are difficult to overcome. the nature of the concept of human rights and the 'crisis' in its foundations has brought with it an abundant and controversial literature to follow up on one of the most disputed debates between philosophy, political science and law, characterised by having ‘more points of divergence than points in common’ (harrison, 2005, p. 35). the words with which bobbio began his study ‘present and future of human rights’ are a good example of the controversial nature of this debate and its scope: three years ago, in 1964, at the conference organised by the ‘institut international de philosophie’ on ‘the principle of human rights', i stated categorically at the end of my paper (...) that the serious problem facing our times with respect to human rights was not one of finding fundamental principles for human rights, but that of protecting them. since then i have had no reason to change my mind. that sentence, which could have been controversial if it had been addressed to an audience of philosophers, when uttered before a meeting of predominantly legal scholars (...) served as an almost compulsory introduction (bobbio, 1991, pp. 63-64). another recurring debate that has highlighted these tensions has been the polarisation between theoretical and practical problems in human rights studies (donnelly, 2003). this has led to barriers not only between disciplines, but also between researchers and human rights practitioners. this has been especially significant, for example, in the different anthropological approaches to the field of human rights (downing and kushner, 1988; messer, 1993) which previously had resulted in a broad and sustained discussion on the role of this discipline in human rights research. the theoretical debates on universalism and relativism initially monopolised the interest of anthropology in human rights in the 1980s, but soon gave way to strong criticism of the restrictions imposed on the theoretical and political potential of anthropology for studying and addressing human rights violations. the debate on universalism and relativism was gradually put aside because it was unproductive at a time and in a context in which human rights research was faced with various practical dilemmas and its discourse was expanding worldwide. it was at this time of epistemic and practical self-reflection when anthropological research on human rights was at its height and new conceptualisations, interactions, processes, dynamics and participatory and activist methodologies were incorporated into it. this questioning forced many of the basic precepts of anthropology to be redefined. they came mainly from feminist theory (haraway, 1988), critical race theory, studies on subaltern groups (spivak, 1988) and postmodern and postcolonial theories (harrinson, 2005). all of them, 5 human rights have generally been thought of as theory. they have hardly ever been considered to be a method, except for pre-eminence that the rights-based approach to cooperation and development once had (with appropriate caution about its underlying predominant vision). available at: http://hrbaportal.org/thehuman-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-unagencies [accessed on 10 may 2019]. http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 80 from different perspectives, questioned the recognition of anthropology as a social science and its validity to provide some definitive truth about human cultures. scientific objectivity was described as an impossible and even insidious goal because of the political effects that anthropological research had on 'others'. these claims appealed to the need to decolonise the relationship between researcher and researched, and to work towards an emancipation-oriented anthropology (gordon, 1991). the contributions of these critical theories to the effects of knowledge production on human rights violations, marginalisation and discrimination centred their criticisms on the excessive legalism that seems to characterise and reach a saturation point in human rights research. some studies have indicated that the pre-eminence of the legal approach to human rights makes it difficult to deliberate on and fight for social justice and human rights, because it is carried out within a reduced legal framework and closes the door to more radical political demands (brown, 1995). moreover, it has also been argued that the regulatory and normative discourse of human rights is part of the engine of capitalism and promotes the normalisation of certain power relations that actually serve (or may serve) to reinforce oppressive structures and discourses (ignatieff, 2001; brown and haley, 2002, p. 24). the demand for a critical review of the prevailing, law-governed view in institutions linked to human rights research has in turn been strongly countered by arguments within the legal disciplines. these have brought attention to the global decline of human rights as regulatory frameworks, and the implications that this has for their protection. human rights have been losing their character of legally binding rules initially for states, but also for groups and individuals. in this context, it has been argued, human rights are longer standards of behaviour that critically assess the quality of government, democracy and social relations. they are rendered invisible or silent and are presented as a mere desideratum; as target values or objectives that would be desirable to achieve, but see their implementation and enjoyment ultimately hindered. we are witnessing a setback and weakening of the normative force of human rights and a process to criminalise their defence. it seems urgent, therefore, to make progress in the legal dimension of human rights research. this debate clearly outlines the obstacles that human rights research faces for interrelating with other hegemonic areas of knowledge and with highly questioned epistemological positions. but it also acknowledges a dialogue that highlights the need to strengthen a research methodology on human rights that combines different critical approaches and takes into account the impact and effects of their modes of production and reproduction of knowledge which, on occasion, serve limited, short-term objectives and goals. one of the major lessons from freeman's classic study on the interdisciplinary nature of human rights (freeman, 2011, pp. 91-93) is the one that points to the apparent correlation between the interest that a discipline has in human rights and a specific historical need. this trend was well illustrated by events in the 1970s: human rights became recognised in international law and in international relations, in what came to be called the 'last utopia' (moyn, 2010). and it was at this point that they began to be taken seriously as an object of study by different disciplines, including social sciences. the knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 81 creation of the human rights quarterly journal in 1979 was important for the development of this area and for opening it up to other disciplines, as it became widely recognised as the leading journal in the field of human rights. in that decade, studies that have become classics were published, since they showed the growing prominence and increasing number of studies on human rights by other non-legal disciplines such as political science, sociology, historiography and anthropology.6 human rights began to play an important part in the work and the analytical agenda of these disciplines' main international networks and associations. and although the study of human rights continued to be dominated by the law (a hegemony that has not been seriously challenged), there was some internal critical questioning that originated in the 1970s and 1980s and cast doubt on that hegemonic vision of human rights. freeman (2011) called for research to be conducted into the social, political and economic constraints that led the analysis of human rights to play such a prominent role in many disciplines. it is true that they did not interact with each other, but they welcomed human rights to respond to specific historical problems. crucially, they were able to complement approaches within the disciplines that had traditionally studied human rights, philosophy and law, which were insufficient. the analysis of the genesis and evolution of human rights research has allowed intrinsic intraand inter-disciplinary tensions to emerge. on the one hand, interdisciplinary research on human rights seems to require a connection of theoretical knowledge with an experience-based practice that, in many cases, appears under a narrative hegemonised by the formalism of legal discourse. on the other hand, knowledge of human rights seems to be preferentially conveyed through conceptual and practical resolutions of legal knowledge, to the detriment of those rights that could be provided by using an emancipatory or a critical approach. how can we move forward? undoubtedly, it is necessary to find a balance between the need for disciplinary specialisation and interdisciplinarity, recognising both the benefits derived from one and the other and the disadvantages and threats inherent in the polarised areas in the study of human rights. human rights are articulated on a legal basis that enables and guarantees their implementation. this is indisputable. but it is also true that human rights are not reduced only to jurisprudence, laws, rules or legislation. nor to philosophy. the understanding of human rights needs to be complemented by the contribution of other disciplines, because the interaction among them is the most effective way of finding solutions to the problems posed by research in the field of human rights. the interaction between politics and the law offers real and effective guarantees for the protection of human rights. the interaction between anthropology and public international law relates human rights to everyday life, allows the distribution of human rights, their meaning and the effect they have on people to be identified. the interaction between economics and philosophy makes it possible to provide a very specific answer 6 without any attempt at completeness, these publications are particularly remarkable, by way of example: claude, rp (ed.) (1976). comparative human rights. baltimore: johns hopkins university press; forsythe, d. p. (1989). human rights and world politics. lincoln, ne: university of nebraska press; vincent, r.j. (1986). human rights and international relations. cambridge: cambridge university press. cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 82 to the question of who should enforce some human rights (such as social and economic rights) and how to do so. the european commission identified interdisciplinarity as one of its fundamental challenges for the era (european research area) and the 2020 horizon programme (european commission, 2015). the reason repeatedly adduced was the need for science to be able to address complex problems quickly and effectively across disciplinary boundaries. however, how to implement interdisciplinarity does not seem to be easy. this was also admitted by the european commission in its report: while there are plenty of data, insights and lessons on directed research programs and organized research units at universities, we have but next to no empirical evidence on how to best stage interdisciplinarity, about the added value it may produce, and what it may take universities and research organizations to effectively cross narrow disciplinary boundaries, perspectives, and interests. the ironic bottom line is that we need both more interdisciplinarity, and more organizational experiments, to advance it, and to learn more about what is conducive to it, what works and what does not (european commission, 2015, p. 4). obviously, it is not merely a question of applying methods, concepts, approaches or theories of different disciplines that offer a rich and varied mosaic of views around the same problem. not every approach is valid when it comes to solving or dealing with a problem, nor is everything useful and necessary. interdisciplinarity understood as a methodological tool for human rights research does not need to bring disciplines together in order to be effective. it requires, on the contrary, knowledge of how these disciplines can interact with each other, which demands, first, that each discipline take the others seriously. in the theory of human rights research, this seems to be well understood and accepted, to the extent that no one questions its interdisciplinary nature. and yet in practice this is an unsolved problem, even though no effort has been spared to move in this direction. the lessons learnt often provide disappointing examples of research results or publications in which several disciplines have been involved, each making its own contribution and adopting its specific perspective; but it is evident that there has been little or no interaction between them. what are the obstacles for interdisciplinarity to be possible, effective and real in human rights research? research on the interdisciplinary construction of knowledge has focused mainly on clarifying what this term means. there is vast literature on the different existing angles and the tensions it entails (lattuca, 2001; repko et al., 2011; frodeman, 2014). the field of human rights does not escape these tensions and obstacles either. as this section has shown, some obstacles are the different ways of producing knowledge are an obstacle and the difficulties for between the different disciplines involved in the study of human rights to interact between them. there are methodological proposals that can help disciplines move in this direction, which offer a comprehensive and systematic presentation of the interdisciplinary research process (repko and szostak, 2017). however, these methodological approaches may not be sufficient to overcome these obstacles if there is really a dominant vision in the institutional environments linked knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 83 to human rights research. this paper asks about the role that structures play in these processes and the importance they have or may have for their legitimisation. by investigating the impact that the institutional structures involved in knowledge production have, some evidence can be obtained about how these obstacles originate and discuss whether they in fact address the challenge of making interdisciplinarity possible. iii. how do (or can) the structures where knowledge about human rights is generated influence its modes of production? what do (or can) these structures relate to the modes of production of knowledge about human rights? the analysis of the formal structures of academic research on human rights has not been sufficiently addressed in justifying the role they have in the interdisciplinary construction of knowledge of this area. however, it is precisely those structures, along with their identity and the practices they engage in, that make up the features and categories of that knowledge. these structures are institutional scenarios that are not merely organisational, but also have a cognitive and symbolic meaning: they have become institutionalised as academic units that define the landscape of 'what can be investigated' on human rights in a given institution. some fields of knowledge or disciplines are prioritised over others depending on the centre to which the research structure is attached, or the area of knowledge to which it seems most natural to allocate human rights research. although the academic community itself admits that human rights are an area of knowledge belonging to the social and legal sciences, the truth is that the researchers themselves recognise that there is not only tension between law and social and human sciences regarding central issues such as the meaning, scope and methodological approach to human rights, but that there is also friction about how human rights are conceptualised in the different disciplines under the umbrella of social sciences (cesarini and hertel, 2005, pp. 795-796).7 the formal organisational structures within which to carry out interdisciplinary research are understood as social constructions and spaces of opportunity for new modes of knowledge that highlight its dynamic nature and also enable its development (weingart and padberg, 2014). this is a necessary basis for interdisciplinarity to take place. however, such organised structures or research centres can paradoxically become the main barrier to interdisciplinarity taking place (uribe, 2013). even though they are decisive in its institutionalising process, they can become their main obstacle, especially 7 if we look at the statements made by the main associations of these disciplines about what they understand by the term ‘human rights’, the differences between them are remarkable. for example, the code of ethics of the american sociology association (june 2018) frames them under the consideration of 'public good' [available at: https://www.asanet.org/sites/default/files/asa_code_of_ethics-june2018.pdf .last accessed: 04 june 2019]. the guide to professional ethics in political science by the american political science association (2012), associates it with the term 'freedoms' [available at http://www.apsanet.org/portals/54/files/publications/apsaethicsguide2012.pdf . last accessed: 04 june 2019], while the statement on professional ethics of the american association of geographers describes them as 'pursuit of well-being' [available at http://www.aag.org/cs/about_aag/governance/statement_of_professional_ethics . last accessed: 06 april 2019]. https://www.asanet.org/sites/default/files/asa_code_of_ethics%20-june2018.pdf http://www.apsanet.org/portals/54/files/publications/apsaethicsguide2012.pdf http://www.aag.org/cs/about_aag/governance/%20statement_of_professional_ethics http://www.aag.org/cs/about_aag/governance/%20statement_of_professional_ethics cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 84 in the university field. on the one hand, formal organisational structures shape and reflect a specific classification of knowledge in certain categories that define and constitute the epistemological and methodological bases of the various disciplines. but also, on the other hand, they are determinants of the legitimisation of knowledge in a certain area. that is, they establish what may or may not be considered knowledge. therefore, to advance the understanding of the interdisciplinary nature of academic research on human rights, we must also understand the organisational forms through which it is institutionalised, and ask whether they encourage or constrain the development of the interdisciplinary character attributed to them. specifically, based on the results in the spanish context, this study aims to provide an axis for the analysis of how the nature and identity of the institutional structures linked to human rights research in the university are determine the potential interaction between disciplines and, therefore, the possibility that the knowledge they generate may be really interdisciplinary. 3.1. a brief mapping of the institutional structures for human rights research to analyse the possible relationship between the modes of production of knowledge about human rights and the institutional structures responsible for research at universities, the analysis carried out in 2018 and 2019 is briefly mapped out below. it is limited to the specific geographical area of spain.8 the research centres were selected from the information collected in the main spanish academic network in the field of human rights, the time of rights (huri-age).9 as shown in table 1, 18 different types of university structures were analysed (institutes, chairs, observatories, laboratories and/or research groups), of which 14 are currently part of the huri-age network. another four were added to this list: two institutes for human rights research at the complutense university of madrid and the university of navarre, respectively; and two university chairs: one for international humanitarian law and human rights from the institute of international and european studies ‘francisco de vitoria’ of the carlos iii university of madrid; and the chair of democracy and human rights of the university of alcalá. research groups and projects focused on human rights were only considered for analysis if they were part of a university research structure. as noted above, the hypothesis is centred on institutionalised structures for the conduct of human rights research in universities; in other words, it revolves around centres or institutes specifically created for that purpose, which formalise and articulate their activities around research lines, projects and teams. for this reason, the study excluded some outstanding centres of 8 the findings are part of a larger and more exhaustive project, scheduled to be published in 2020. it covers the analysis of university centres that conduct human rights research in europe, north america, latin america, africa and asia. the space limitations of this study have meant that findings can only be related to the spanish context. even so, the results of this microscopic view are very similar to those found in other contexts analysed. therefore, despite their limitations, they provide an apt basis for discussion. 9 the network started in 2008. it is currently composed of 15 research groups and centres. for more information, see https://redtiempodelosderechos.com [accessed: 10 may 2019]. knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 85 human rights research in spain, such as the institut de drets humans de catalunya and the instituto de derechos humanos joaquín herrera flores in seville, as they are both civil society organisations. table 1. general data of the study sample in spain type name university year created institute instituto universitario de derechos humanos ‘bartolomé de las casas’ [‘bartolomé de las casas’ institute of human rights] carlos iii university, madrid. 1990 [1993] instituto de derechos humanos 'pedro arrupe' [‘pedro arrupe’ human rights institute] university of deusto 1997 institut de drets humans [human rights institute] university of valencia 2005 instituto de derechos humanos [human rights institute] complutense university, madrid 1980 instituto de derechos humanos [human rights institute] university of navarre 1991 research centre centro de investigación de la efectividad de los derechos humanos [human rights indicators research center (hurierc)] jaume i university not provided observatory observatorio de derechos humanos [observatory of human rights] university of valladolid 2009 observatorio gregorio peces-barba de derechos humanos y democracia [‘gregorio peces-barba observatory of democracy and human rights] university of jaén 2013 observatorio de investigaciones sociojurídicas sobre derechos y libertades fundamentales [observatory of sociolegal research on fundamental rights and freedoms] university of la rioja 2004 laboratory laboratorio 'sociedad de la información y derechos humanos' [‘information society and human rights’ laboratory] university of vigo 2011 laboratorio sobre la implementación y eficacia de los derechos sociales – laboratorio de sociología jurídica [laboratory on the implementation and effectiveness of social rights legal sociology laboratory] university of zaragoza 2002 research groups research group, 'informática, lógica y derecho' . university of seville not provided grupo de investigación 'la comparación en derecho constitucional' [‘compared constitutional law’ research group] university of cádiz not provided grupo de filosofía del derecho [philosophy of law group] university of cantabria not provided http://investigacion.us.es/sisius/sis_depgrupos.php?seltext=sej164&selfield=codigo& http://investigacion.us.es/sisius/sis_depgrupos.php?seltext=sej164&selfield=codigo& cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 86 grupo de filosofía del derecho y filosofía política del departamento de derecho público [philosophy of law and political philosophy group of the department of public law] rovira i virgili, university of tarragona not provided chair cátedra de democracia y derechos humanos [chair of democracy and human rights] alcalá university 2001 cátedra mario villarroel de derecho internacional humanitario y dd.hh. [‘mario villarroel’ chair of international humanitarian law and human rights] carlos iii university, madrid. 20172020 legal clinic clínica legal de la facultad de derecho [legal clinic of the faculty of law] alcalá university 2012 source: developed by the author based on public information available on these centres in order to facilitate the analysis, the study concentrated on three axes: (a) the nature of these structures: their identity and affiliation within university architecture; (b) the characteristics of their research, teams and practice networks and relationships with academia; and (c) the impact of human rights research through the different training programmes and publications promoted by these research structures. the first axis was useful to find out who researches in these structures; the second was helpful to analyse what is investigated and how; and the third axis was used to find out for research is carried out and what its purpose is. the resulting mapping is expected to provide a basis to discuss the role that interdisciplinarity has in the research carried out in these centres. as pointed out in previous sections, this involves analysing whether the modes of production of knowledge about human rights may be determined by the structures where it is generated and, therefore, if these may trigger possible conceptual, epistemological and methodological biases. the data were extracted from the information publicly available about these centres and was analysed using content analysis. these dimensions were combined, and the analysis was carried out based on a series of categories that assessed this correlation, as shown in table 2: table 2. categories of analysis: process of classification dimension categories conditioning factors who conducts research? nature institutionalisation of research identity declared identity affiliation connection to a discipline predominant background connected disciplines what is researched and how? lines connection to knowledge areas team affiliation to a field of knowledge publications practice network projects practice network knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 87 for whom is research conducted? what is its purpose? educational programmes enhancement of educational capabilities own publications transfer network source: developed by the author the types of the 18 structures analysed and their reported activities were compared to outline the initial mapping: out of all of them, the three university research institutes from the carlos iii university of madrid, the university of deusto and the university of valencia had the highest level of institutionalisation in the structure of their respective university institutions. this contrasted with those of the complutense university of madrid and the university of navarre, which, despite being the oldest, based on the information publicly available, reflected a low level of research activity. the complutense university of madrid focuses its activity on its publication entitled yearbook of human rights and its own titles on human rights, which have been published since the 1980/1981 academic year.10 there was very little information publicly available on the university of navarre. the only useful data that could have been taken into account in the study were the year when it was founded (1991) and its type and affiliation: the area of philosophy of law, attached to the faculty of law of the university of navarre.11 the remaining organisational structures had different denominations but were all initiatives mainly driven by research teams. most of them (particularly those included in the huri-age network) were found to be well-established, stable groups with a track record recognised both nationally and internationally. looking at these ways of institutionalising human rights research in spanish universities, it can be concluded that they have been consistent with the traditional formal organisation of research in academia, through the creation and consolidation of research groups who work in a stable manner, mainly linked to specific structures for the development of r&d&i, such as university research institutes, research centres and/or other academic structures. their main objectives are: to promote certain lines of research on human rights; to allocate teaching and research staff to them to carry it out; to promote specialist postgraduate training at master's and phd levels; and to foster the dissemination and transfer of the knowledge generated to society. these organisational structures are a very visible component of the disciplinary organisation in the university context. while in the field of human rights borders between disciplines may be disputed, they mark not only certain organisational, but also cognitive, jurisdictions (gumport and snydman, 2002, p. 378). the institutionalisation of knowledge in these structures helps define what is understood as being knowledge in a given area of research. it also allows this knowledge to be showcased and recognised as specifically human rights research, at least with respect to those other initiatives which, may deal with related issues but are not explicitly aimed at human rights. 10 for more information see: https://www.ucm.es/idh [accessed: 10 may 2019]. 11 for more information see: https://www.unav.edu/web/facultad-de-derecho / research-institutes [accessed: 10 may 2019]. https://www.ucm.es/idh https://www.unav.edu/web/facultad-de-derecho/institutos-de-investigacion cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 88 the average age of the research structures included in the study was 16 years. nearly all of them were created at the end of the twentieth century or at the beginning of the twenty-first century. this does not mean that human rights had not been the object of interest in spanish university research until then;12 or that the central topics related to its study had not been established. however, it was only in the 1960s that the concept of 'human rights' began to be used in spain, 'although somewhat problematically' (rivaya, 2009, p. 572), and that a specific human rights doctrine was built from a liberal and democratic worldview.13 from the 1980s, the study on human rights became part of the philosophy of law. this gave rise to a number of emblematic publications that contributed significantly to its dissemination. in 1984 the publication of the anuario de filosofía del derecho (linked to the spanish society of legal and political philosophy) was resumed, and the journal doxa, cuadernos de filosofía del derecho, directed by manuel atienza from the university of alicante, was first published. since then, as rivaya pointed out, nearly every philosopher of law in spain has written about human rights (rivaya, 2009, p. 577). during this time, the complutense university of madrid established the first university centre dedicated to the research, teaching and dissemination of human rights (1980), founded by gregorio peces-barba. the same academic year saw the start of the first specialist course in human rights, directed by joaquín ruiz-giménez. the year 1980, therefore, can be considered to be the starting point for the establishment of a gradual process of human rights research institutionalisation in spanish universities, built around a series of academic structures that brought together the legacy of a long tradition that would serve as the basis for further development. a decade later, the ‘bartolomé de las casas’ institute of human rights emerged at carlos iii university, madrid, which published the derechos y libertades journal, initially directed by pecesbarba. in 1997, the 'pedro arrupe' institute of human rights was founded at the university of deusto. the rest would progressively be set up from 2000 onwards. a) type, identity and affiliation the above account points to an interesting axis for analysis. institutionalisation has been strongly determined by how human rights research was initiated in spain. some studies were undertaken by researchers from the area of public international law, and most of them by researchers from the area of philosophy of law, both jurists and philosophers.14 the area of legal research was clearly predominant. for this reason, the analysis of the nature of these organisational structures is consistent with the obvious and 12 for a further understanding of the thinking about human rights in spain, the work of garcía manrique (1996) and rivaya (2009 and 2010), among others, provided a particularly detailed analysis of the different human rights doctrines in the twentieth century, specifically during the francoist period. 13 the works by the members of the so-called 'ruiz-giménez school', including elías díaz, have been recognised as being representative of how the theme of human rights was introduced in philosophy of law in spain. the publication of derechos fundamentales by gregorio peces-barba in 1973 began a doctrine that would be continued by a large school until today (rivaya, 2009, p. 569). knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 89 problematic manner in which human rights research began and later became established within the university environment. fourteen academic structures are affiliated to the faculty of law of their respective universities. the ‘bartolome de las casas’ institute of the carlos iii university, madrid is affiliated to the faculty of social sciences and legal sciences. it was founded in 1990. the institute was set up by peces-barba after the activities and the core of the teaching staff of the institute of human rights from the complutense university of madrid were transferred in 1989. research within this institute has taken place since then in different disciplines of law. for its part, the 'pedro arrupe' institute of human rights was established in 2009 in the faculty of social and human sciences of the university of deusto, as a result of the restructuring of several centres brought about by the bologna reform, among other things. it was created and managed by jaime oraá (professor of public international law) 12 years ago as part of the faculty of law of that university. some 61.5% of the researchers who are currently part of its team come from the law area. it has now become an interdisciplinary institute, interdependent of both the social and human sciences and the law. this change of affiliation has not had any negative repercussions as to its initial legal background; rather, it has meant that the institute has been able to maintain it. the creation of university faculties is associated with the specialisation of knowledge and its institutionalisation within the academic structure of the university. the areas of knowledge are always the fundamental grounds for a university’s institutional organisation (clark, 1983: 41). for human rights, as can be seen from the institutional outline provided, these appear related and attached to the area of law and the different disciplines into which it is organised. this also accounts for the institutional place from which the challenges and needs that have emerged in the spanish academia regarding human rights have been hegemonically addressed. zooming in further to look at the disciplines of law that have been engaged in human rights research, the main areas are the philosophy of law, public international law, legal sociology and constitutional law. except for the ‘mario villarroel’ chair in humanitarian international law and human rights, attached to the francisco de vitoria institute for international and european studies of the carlos iii university, madrid, and the ‘pedro arrupe’ institute of human rights at the university of deusto, the rest of the structures are either affiliated to or mostly composed of researchers from the departments of philosophy of law. this makes it the main discipline that holds together university-based institutional research on human rights in spain. while there are some different nuances, all of the institutions outlined share a common research objective and seek to meet the challenges that human rights presently pose in our societies and the need to make progress in building a culture of human rights. the lines of research established by the huri-age network, which brings together the cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 90 most active centres, also have that objective at heart.15 in general, there is a more or less explicit recognition16 of the multidisciplinary nature of the research carried out, although there is a dominant influence of law and, specifically, of philosophy of law. this characterisation of the inter/multidisciplinary nature of human rights research carried out in these structures has a significant connotation. it points to the selfunderstanding of an area of knowledge that is intrinsically heterogeneous. this identity feature is the result of the opening and crossing of borders held by the different law disciplines with others such as political philosophy, international relations, political science, sociology and anthropology. however, since the status of that human rights research in university structures that have contributed to its institutionalisation and legitimisation is so entrenched, a question arises: is interdisciplinarity possible? if so, how successful has that conceptual, epistemological and/or methodological interaction with other disciplines been, and what was its purpose (to ensure that the result was an interdisciplinary study)? b) characteristics of the research conducted. research teams the recognition of the interdisciplinary nature of human rights research runs the risk of becoming merely rhetorical; of being compulsorily accounted for in theory, but completely removed from the demands that make it possible in actual practice. this is a critical issue that makes it necessary to probe further into the features of this institutionalisation, by looking at the objectives, modes of production and the results of this type of research. the map obtained from the analysis of the nature and affiliation of human rights research within the university architecture shows a rather predictable profile of the research groups. this is a long way from the rationale of knowledge construction that is a characteristic of interdisciplinarity. in fact, this confirms the importance of the organisation of disciplines and the impact it has on the modes of knowledge production. they are research structures that render some conceptual, epistemological and methodological features, and the rationales and inertia inherent in this type of research hegemonic. not only do the majority of human rights researchers come from the field of law; the majority come from the philosophy of law and public international law. both have the greatest number of research staff in these structures. this information is relevant because it has direct implications for the leadership of the research projects carried out by these teams, among other things. 15 see https://redtiempodelosderechos.com/descripcion-2/lineas-de-investigacion/ [accessed: 12 may 2019]. 16 see, for example, the definition of the institute of human rights of the university of valencia (available at: http://www.idhuv.es/ ); the human rights observatory of the university of valladolid (available at: http://odh.uva.es/quienes-somos/); the observatory of the university of la rioja (available at: https://investigacion.unirioja.es/groups/15/lineas ); or the chair of democracy and human rights of the university of alcalá (available at http://www3.uah.es/catedra_ddhh/inicio .html ) [accessed: 12 june2019]. http://www.idhuv.es/ http://odh.uva.es/quienes-somos/ http://odh.uva.es/quienes-somos/ https://investigacion.unirioja.es/groups/15/lineas https://investigacion.unirioja.es/groups/15/lineas http://www3.uah.es/catedra_ddhh/inicio.html knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 91 in the 2018-2019 period, funding was granted to nine active competitive projects that submitted bids to the major calls for r&d&i proposals in spain. some of the research groups involved are included in the sample. in five of them the principal researchers were from the area of philosophy of law, three were led by researchers from the area of public international law; and only one of them, completed in 2018, was directed by a researcher from the area of sociology. therefore, the area of knowledge to which these projects were mostly affiliated and where they were recognised by public research support institutions was that of the legal sciences, regardless of whether the sub-discipline of 'human rights' was integrated into the branch of political sociology and the area of political science. financing institutions awarded a greater proportion of funding to human rights research projects that were submitted by researchers in the area of legal sciences. this means that the relationship between a specific disciplinary area and a given research object becomes strengthened and ultimately naturalised, as is the case of philosophy of law and public international law with human rights. additionally, the recurrence of the principal researchers in projects prior to 2018 was analysed. a tendency was identified to maintain the leadership of the principal researchers in the projects, with little or no turnover. the original discipline of the majority of researchers in the research/work teams for these projects was the same as that of the principal researcher. the network of relationships, therefore, was also limited to the discipline that predominated in the project profile. the consequence was a relative homogenisation of research topics on human rights, which was also reflected in the themes of the publications by researchers affiliated to these structures. the labels used for the lines of research promoted by these institutional structures was found to be striking. their nomenclature was consistent with fundamental challenges currently linked to human rights, such as human mobility, conflicts and borders, discrimination, complex inequalities, exercise of rights, inclusive citizenship and the transformation of justice, to name a few. the huri-age network itself emerged with the objective of 'analysing the situation of human rights in contemporary societies by using a comprehensive approach, identifying the main challenges and problems they currently face and may face in the future, and propose possible solutions that lead to achieving an international rule of law'.17 however, it should be clarified that the research carried out by these teams is effectively aimed at meet these challenges, with the objective of addressing any potential gaps, problems resolved by other areas of law or deficiencies in the study of human rights in the spanish scholarly context from a legal perspective. it is based on the recognition that the law is not exhausted in the mere formal-normative analysis of current positive law. it is also an unquestionable political, moral, social, cultural and historical reality (rivaya, 2009, p. 87). disciplines such as the philosophy of law contribute to providing a critical approach or finding solutions to problems that are unresolved or yet to be finetuned in legal research. while they do not do so in isolation, but through dialogue with other research areas outside the legal sciences, their function is to reflect on problems from within the legal experience. 17 see http://www.tiempodelosderechos.es/es/descripcion.html [accessed: 12 may 2019]. http://www.tiempodelosderechos.es/es/descripcion.html cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 92 obviously, human rights are not the only theme studied by these law disciplines; however, as this area has become part of their endeavour, and it has been recognised that their study requires the creation of stable research structures, the area of human rights has come to share the characteristics that define and articulate legal research. its specific function within all these structures seems to be to reflect on human rights from within the legal experience. the human rights research approved and supported by the main research regional agencies in spain prioritises more comprehensive approaches consistent with these human rights research structures. while mixed methodological approaches predominated in the projects analysed, most of them were focused on legal science methodology. this is another sign of the specialised modes of knowledge production to which human rights research is subject. based on this consideration, how can its interdisciplinary character be understood? c) enhancement of educational and dissemination capabilities one way –but not the only way– of confirming this possible process of epistemological and methodological specialisation in human rights research is to contrast the results of subsequent analyses with the training capacity of researchers affiliated to the stable structures that have been part of the sample. the phd theses completed and the articles derived from them use the specific literature from the areas of law that have traditionally been dedicated to human rights research almost exclusively. the results are published in journals or publishers promoted by the same university institutions. doctoral programmes do not include among their educational activities any specialisation courses specific to human rights methodology or interdisciplinary research methodology. most of the courses and reading lists on human rights research methodology offer collected techniques from a single discipline aimed at students from associated disciplines: a compendium of sources or database search engines; basic training in the research career and the skills required; legal research methods for law students; social sciences methodologies (mainly for sociology and anthropology) for the rest of the students. largely descriptive information is often used obtained from different international instruments, treaties, legal norms, principles, judgments and specific cases. although research seminars are firmly promoted, no spaces were found among those consulted for assessing or discussing different methodological options, or techniques to combine them. nor were tools provided to enable non-specialists in a given area to benefit from the epistemological and methodological potential of other disciplines. the strong educational capacity of these structures (as they host the main postgraduate programmes at the master's and phd levels in spain in the field of human rights) is built only on the epistemological and methodological grounds provided by each discipline, which very often corresponds to the legal area. these human rights research structures also stand out because they are responsible for the main scientific and editorial publications on human rights in spain: the institute of human rights of the university of valencia publishes cuadernos electrónicos de filosofía del derecho; the ‘bartolome de las casas’ institute of la carlos iii university knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 93 in madrid publishes the derechos y libertades journal; the 'pedro arrupe' institute of human rights from the university of deusto publishes the deusto journal of human rights; and the age of human rights journal, a scientific journal published in english within the huri-age research network, to which the most important human rights research groups in spain belong, as noted on its public website. a very significant number of researchers attached to these structures actively participate, either as authors or as part of the editorial board and/or as advisors, in the anuario de filosofía del derecho, and also, although to a lesser extent, in the revista española de derecho internacional and the revista española de derecho constitucional.18 they also have close links to spanish publishers (for example, tirant lo blanch, dykinson, aranzadi o the collections of the publishing house of the centro de estudios políticos y constitucionales), which occupy the top positions in the prestige and quality rankings according to academic experts.19 iv. limitations and opportunities for the promotion of an interdisciplinary approach in human rights research this brief mapping has shown some of the features of human rights research conducted by academic structures in the spanish context. the results show that human rights research is becoming well-established in spanish universities, strengthened by the recognition (since 2007) of a network of research excellence and the existence of a wellestablished universe of formal structures, at least 16 of those analysed, which have allowed for their institutionalisation. all this has been further strengthened by the membership of some of them to a global network of human rights researchers, gathered around the association of human rights institutes [ahri],20 and currently led by the danish human rights institute. obviously, this consolidation process has been possible because of a series of, not only disciplinary, but also very specific socio-political circumstances in spain, which has strongly determined the reception and subsequent conduct of studies on human rights. all this has gradually resulted in a focused space for research on human rights that has been institutionalised into academia around a series of formal and stable structures. the features of these structures have conditioned the ways of producing knowledge about human rights in spain, which have caused the different branches of the legal sciences to 18see also cuadernos electrónicos de filosofía del derecho: https://ojs.uv.es/index.php/cefd; derechos y libertades https://www.uc3m.es/investigacion/derechos-libertades; deusto journal of human rights http://revista-derechoshumanos.revistas.deusto.es/; age of human rights journal: https://revistaselectronicas.ujaen.es/index.php/tahrj; anuario de filosofía https://www.filosofiadelderecho.org/publicaciones/anuario-de-filosofia-del-derecho-2/; revista española de derecho internacional: http://www.revista-redi.es/es/lineas-de-investigacion/; revista española de derecho constitucional: http://www.cepc.gob.es/publicaciones/revistas/revistaselectronicas?idr=6 [accessed: 14 june2019]. 19 see the 2018 ranking of law publishers published by scholarly publishers indicators in humanities and social sciences, a benchmark for the evaluation of the quality of spanish publishers: http://ilia.cchs.csic.es/spi/prestigio_sectores_2018_2.php?materia=derecho&tabla_esp=spi_editoriales_d erecho&tabla_extr=spi_editoriales_derecho_extr [accessed: 14 june 2019]. 20 see at https://www.humanrights.dk/ research-project / association-human-rights-institutes-ahri-globalnetwork-human-rights-researchers [accessed: 14 june 2019]. https://ojs.uv.es/index.php/cefd https://www.uc3m.es/investigacion/derechos-libertades http://revista-derechoshumanos.revistas.deusto.es/ https://revistaselectronicas.ujaen.es/index.php/tahrj https://www.filosofiadelderecho.org/publicaciones/anuario-de-filosofia-del-derecho-2/ http://www.revista-redi.es/es/lineas-de-investigacion/ http://www.cepc.gob.es/publicaciones/revistas/revistaselectronicas?idr=6 http://ilia.cchs.csic.es/spi%20/prestigio_sectores_2018_2.php?materia=derecho&tabla_esp=spi_editoriales_derecho&tabla_extr=spi_editoriales_derecho_extr https://www.humanrights.dk/research-project/association-human-rights-institutes-ahri-global-network-human-rights-researchers https://www.humanrights.dk/research-project/association-human-rights-institutes-ahri-global-network-human-rights-researchers cristina de la cruz-ayuso the age of human rights journal, 13 (december 2019) pp. 75-98 issn: 2340-9592 doi: 10.17561/tahrj.n13.5 94 play a central role. there is more university research on human rights in spain being carried out by other research centres and groups, but the importance of those analysed in this study is indisputable. they have had the opportunity of becoming formalised in stable structures in the university architecture, which has been decisive in understanding the place and recognition that it enjoys today. this study has analysed the modes of production of institutional research on human rights and assessed its widely recognised interdisciplinary nature. the analysis provided a brief outline that has helped to make the importance of the legal disciplines (nature, identity, objectives, approach, projects, procedures and training focus) visible. this has shown the emphasis on the research rationales of these structures and their correlation with the recognition they receive from public research support bodies. the findings have identified different types of institutionalisation of human rights research in spanish universities, and have confirmed the pre-eminence of its affiliation to the faculties of law and a close connection with those departments that contain this object of study: mainly philosophy of law, public international law and constitutional law. the series of consequences this has for the organisation and production of knowledge in these structures has been reported. the underlying question for this study was whether these organisational and academic structures of knowledge about human rights make interdisciplinarity possible. the results show that the bases on which they have been built do not make it possible. in addition, the inertia inherent in the research system established in the spanish context does not encourage it. the indicators that evaluate the multidisciplinary nature of the projects only take into account the incorporation of researchers from different disciplines; however, it does not include indicators to evaluate the quality of the epistemic and methodological interaction between them. in the academic framework, there is little academic culture to understand interdisciplinary approaches and to establish stable working relationships. the interdisciplinary structures are weak and hinder the development of the academic careers of the researchers attached to them. the path to interdisciplinary research seems to be too rocky. undoubtedly, there are internal and external conditions that limit the development of interdisciplinary research. however, human rights research needs interaction between disciplines to be more effective. unless some movement is made in this direction (which is by no means easy), the modes of production of knowledge in this area will be conceptually, epistemologically and methodologically biased. their answers will be unable to effectively solve the theoretical and practical problems that human rights need. knowledge production methods in human rights research: constraints and opportunities for the promotion of an interdisciplinary approach the age of human rights journal, 13 (december 2019) 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(2013). la interdisciplinariedad en la universidad contemporánea. reflexiones y estudios de caso. bogotá, colombia: pontificia universidad javeriana. vincent, r. j. (1986). human rights and international relations. cambridge (uk): cambridge university press. weingart, p. and padberg, b. (eds) (2014). university experiments in interdisciplinarity. obstacles and opportunities. bielefeld: transcript, science studies. https://doi.org/10.14361/transcript.9783839426166 ziman, j. (2000). real science. what it is, and what it means, cambridge, uk: cambridge university press. https://doi.org/10.1017/cbo9780511541391 received: september 25th 2019 accepted: october 28th 2019 https://doi.org/10.14361/transcript.9783839426166 https://doi.org/10.1017/cbo9780511541391 international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 377 international practice of human rights as legal demand-rights: a critical approach johnny antonio dávila* abstract: margaret gilbert’s approach to human rights asserts that these are demand-rights, be they moral or legal. as legal demand-rights, human rights result exclusively from an international practice in which states hold a leading position and moral considerations are not of relevance this paper offers a critique of gilbert’s prominent approach to conceptualising human rights as legal demand-rights. a strongly state-centric approach like this one does not correctly represent the international practice of human rights and may reinforce the dominant role of states vis-à-vis individuals, what contradicts our contemporary understanding of human rights. moreover, if gilbert’s approach to human rights as legal demand-rights is followed in the way she has proposed, the realisation of these rights could be even more difficult. i suggest that such outcomes can be avoided by accepting the dual (political and moral) nature of human rights. keywords: human rights, legal standing to demand, moral rights, international practice, joint commitment, political approach. summary: 1. introduction. 2. human rights as an international practice. 2.1. legal demand-rights, joint commitment, and free-standing moral rights. 2.2. international legal human rights and joint commitments. 3. some problematic issues. 3. 1. joint commitments: a limited view of the international human rights practice. 3.2. reinforcing the dominant role of states. 4. suggestion. 5. conclusion. 1. introduction in human rights in light of the foregoing, the last chapter of her book rights and demands: a foundational inquiry (hereinafter rights and demands), margaret gilbert (2018: 338) holds that legal human rights and the corresponding legal standing to demand compliance with them result merely from the international practice led by states. her view can be included among political approaches to human rights, which assert that the existence and notion of human rights are exclusively connected to current institutional structures, especially within the framework of modern states.1 gilbert has previously addressed the topics of rights2 and human rights,3 albeit in a very general way. in rights and demands there is a deeper and more detailed construction, so that can be said that this book contains her most recent and elaborated proposal on this subject, that is part of the broader project she has developed since the publication of on social facts (1989). * fellow global justice program, yale (joandav31@yahoo.com). 1 see, e.g., besson (2011: 223), mayr (2012: 73), and gilabert (2018: 29). 2 see, e.g., gilbert, 1999: 143-163; 2012: 301-323; 2014a: 215-256; 2014b: 215-256. 3 gilbert, 2010: 1-9. international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 378 gilbert’s conception expressly moves away from positions that conceive human rights as rights that we have just because we are human beings, which are labelled as foundationalist.4 she suggests that one can understand human rights as demand-rights that draw on social interaction (gilbert, 2018: 324, 326-333). for her, human rights can be moral or legal demand-rights, but she focuses exclusively on the latter category. in this sense, she considers that legal human rights exist and that human beings have the legal standing to demand respect for these rights only because states allow it through joint commitments among states (gilbert, 2018: 332-33). this way of arguing leads to morality playing a secondary role in the international practice of human rights. like gilbert, i think that today the idea of human rights becomes more acceptable and, consequently, more realisable if it is separated from foundationalist conceptions – which often mask metaphysical assumptions – and is connected to social facts, to social interaction. by contrast to gilbert, i take the view that moral considerations are decisive for the existence of legal human rights and for granting the legal standing to demand respect for them. this paper addresses two problematic issues in gilbert’s state-centric conception of human rights. firstly, her proposal does not adequately represent the international human rights practice, contrary to what she claims. secondly, it may reinforce the dominant role of the state vis-à-vis the individual. both shortcomings are fundamentally generated by diminishing the role of moral considerations in the international human rights practice. after this introduction, the second section of the paper delineates the general framework of gilbert’s understanding of human rights as legal demand-rights. the third section discusses what the problematic issues are and, finally, the fourth section suggests a way of overcoming the shortcomings of gilbert’s approach. for the sake of concision and clarity, this paper mainly considers rights and demands, albeit it will also refer to other works by gilbert when necessary. 2. human rights as an international practice 2.1. legal demand-rights, joint commitment, and free-standing moral rights gilbert develops her idea of human rights within the broader framework of her theory. in rights and demands, gilbert analyses the nature of rights and how they are founded. to that end, she considers the well-known four-fold classification of legal advantages proposed by wesley hohfeld, who distinguished between privileges or liberties, rights or claim rights, powers, and immunities (gilbert, 2018: 15-24). she argues that claim rights are rights ‘in the strictest sense’ (gilbert, 2018: 24) and have primacy over the other three advantages because they are always present in any situation as they are also used to enforce liberties, powers, and immunities. in other words, the holder of a claim right has the standing to demand respect for liberties, rights in the strictest sense, powers, and immunities. instead of the term claim rights used by hohfeld, gilbert prefers to use the label ‘demand-rights’ (gilbert, 2018: 61) . 4 see, e.g., luban, 2015: 269, 277. these approaches are also called naturalistic, humanist, orthodox, general, moral, or philosophical. see further details in beitz (2009: 49) and gilabert (2018: 29). johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 379 demand-rights are present in our daily lives, such as when two people agree to go for a walk in the park. but they have an institutional dimension as well, which means that there can also be institutional demand-rights. a constitutive part of institutions are rights: institutional rights are part of institutions. this is the case, for instance, with respect to religious, sports, and above all legal institutions (gilbert, 2018: 30). legal rights are institutional rights, and because of this, they as such lack normativity, as people can always question if they have ‘reason to take account of it in any way’ (gilbert, 2018: 31). the mere existence of legal rights is not a strong enough argument for their enforcement. something else is needed to justify the normativity of these rights. according to gilbert, joint commitments are the source of the normativity of legal rights; they ‘are the inevitable outcome of making the joint commitment’ (gilbert, 2018: 294). people can go to court to enforce their rights because a joint commitment is in place that empowers them to do so. by virtue of the joint commitment, people in a given society have the right to demand against each other that they respect the legal system in general. this argumentation is called the ‘joint-commitment argument’ (gilbert, 2018: 240). joint commitment is a technical term created by gilbert that has been present throughout her works,5 playing a significant role in her view of normative and political phenomena as social facts. joint commitments are formed by ‘two or more people’ (gilbert, 2018: 31)6 who decide to act together as a body, as a unity for a common goal. it is a commitment of the will, which implies that the freedom of those who commit is fundamental (gilbert, 2018: 162-169). people who enter the joint commitment build a normative bond that grants rights and duties to the participants, and each participant can demand from all others that they fulfil their duty, can impose sanctions on them and so on: ‘it is in the context of their co-authorship of the joint commitment that each has the authority to call each to order’ (gilbert, 2018: 171). it is worth noting that gilbert does not deny that there are also moral demandrights. what she refuses is the idea of free-standing moral rights; that is, moral demandrights that do not have as their source a joint commitment and are simply based on absolute moral values (gilbert, 2018: 236, 278, 326). this means that, according to her, there are no demand-rights, whether moral or legal, without appealing to joint commitments.7 gilbert’s understanding of legal demand-rights and joint commitments determines to a large extent her approach to human rights. i will proceed to explain how this works. 5 gilbert first referred to the idea of joint commitment in on social facts, chapter 4. the idea has appeared repeatedly in her writings. see, for instance, gilbert 1999: 143-163; 2006: chapter 7; 2013: 899-905; 2014: chapter 2. 6 as claimed by gilbert, there are also personal commitments. see, for instance, gilbert, 2014: 31: ‘a personal commitment is a commitment that is brought into existence by one person alone. that person can, further, terminate or rescind it simply by changing his or her mind. a personal decision, for instance, generates a personal commitment’. in other words, personal commitments need just the will of one single individual to exist. i focus exclusively on interpersonal behavior and responsibilities in relation to rights and human rights. thus, personal commitments do not play a prominent role in this paper. 7 in the same vein, gilbert indicates that the foundation of a society and the political obligation to maintain and respect its institutions is based on joint commitments and not on moral arguments. see gilbert, 2014a: 389-394, 406. international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 380 2.2. international legal human rights and joint commitments as noted above, gilbert argues against the view of free-standing moral rights and, consequently, she also rejects the idea of human rights as free-standing moral rights (gilbert, 2018: 332-333). holders of human rights as free-standing moral rights would not have ‘the standing to demand the objects of their rights’ (gilbert, 2018: 333)8 because they are not the outcome of a joint commitment. gilbert certainly accepts that there are other kinds of moral rights, which are based on joint commitments and can be seen as human rights (gilbert, 2018: 332), although she does not offer an exhaustive presentation of these kinds of rights. however, accepting that moral human rights may exist does not mean affirming that they are the only real human rights. human rights also exist in the legal realm. moral human rights as moral considerations can be useful to legitimise legal human rights, but gilbert does not suggest that this is necessary. or as she puts it, in line with buchanan: ‘the law can confer the relevant legal standing on an individual’ (gilbert, 2018: 334-335), even if there is nothing morally sufficient in the individual to justify it. it seems that moral and legal human rights can exist in total separation from each other. nevertheless, they have something in common: both types of human rights need joint commitments to justify the standing to the demand of the rightsholder (gilbert, 2018: 332-333). like scholars such as beitz and buchanan,9 gilbert advocates a political approach to human rights. such an approach is practice-dependent10 because it is not primarily built on theory, but on the practice of human rights. for her, the contemporary concept of human rights is mainly the result of international developments (gilbert, 2018: 338). she thus concentrates on the understanding that human rights are legal demand-rights that form part of an international practice (gilbert, 2018: 333-336). to assert that human rights are an international practice means that they must be analysed based on the normative reality that occurs in the international sphere. gilbert follows beitz stating that this international practice is a social practice, i.e., it is ‘a pattern of normgoverned conduct whose participants understand it to serve certain purposes’ (gilbert, 2018: 338). in her view, international treaties can be seen as ‘a paradigm case of a joint commitment’ (gilbert, 2018: 339). in this spirit, and consistent with the argument that she has previously developed, the source of human rights as legal demand-rights can only be the corresponding joint commitments. if not, the holders of human rights would not have the legal standing to demand the objects of their rights. states are responsible for concluding the corresponding joint commitments (gilbert, 2018: 337), which they carry out through treaties and other international documents such as declarations and so on: ‘insofar as the international practice of human rights involves more than “one shot” treaties and declarations, where 8 gilbert does not say it, but her vision also calls into question the theories of authors such as feinberg (1973: 84-97), alexy (2004: 15-24), campbell (2004: 11-30), tasioulas (2013: 293-314; 2015: 45-76), and gilabert (2018: 113, 131). these authors, among others, assert that human rights are essentially moral rights that refer to absolute values. 9 see, e.g., beitz (2009: 13) and buchanan (2013: 5-6). 10 see similar approaches in luban (2015: 274-277), beitz (2009: 42-47; 2020: 1-20), and sangiovanni (2020: 1-16). johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 381 the parties’ representatives sit down and agree, in one way or another, it could also in principle at least comprise rules, conventions, or customs themselves constituted by joint commitments’ (gilbert, 2018: 339). it should be noted that gilbert takes a broad view of international human rights practice, so that it is not limited to judicial decisions. international human rights practice encompasses actions and procedures of states’ entire institutional framework for entering joint commitments and granting the legal standing to demand. thus, this is a political conception, as previously stated. according to gilbert, citizens allow their states, through a foundational joint commitment, to approve the given international norms on human rights, and states, in turn, adopt the corresponding international norms that are derived from joint commitments between them. therefore, we are co-creators of those declarations and treaties, i.e., we are co-creators of legal human rights (gilbert, 2018: 340-341). nonetheless, it must be noted that her reliance on beitz leads her to the view that states are ‘the central participants in the practice and its principal targets’ (gilbert, 2018: 339) and that they are the principal parties that jointly commit to create legal human rights and to grant the corresponding legal standing to demand. undoubtedly, the preponderance of states also reinforces the legal character of human rights. it is because of the appropriate joint commitments between states that citizens hold human rights against their own and other signatory states (gilbert, 2018: 339). given that background, people are human rights holders because they belong to a concrete political society that has the corresponding joint commitments in place and not for the simple reason that they are human beings or citizens (gilbert, 2018: 339).11 the core point i would like to highlight in this paper is that gilbert downplays the importance of moral considerations for the existence of legal human rights and the corresponding legal standing to demand respect for them. both exist, she would say, only because of joint commitments between states. as a result, gilbert’s theory does not adequately represent international human rights practice and tends to reinforce the dominant position of the state relative to individuals. i will argue later (sections 3 and 4) that moral considerations are relevant to our current conception of international human rights and, as such, they are as indispensable as the political procedures performed in the joint commitments by states. to close this section, may i say that gilbert most of the time speaks of citizens as holders of human rights, since they are the ones who legally belong to the political community, namely, to the state. however, she also argues that all people who live in a specific territory – citizens and residents – must be holders of these rights and have ‘the standing to demand conformity to the practice of human rights’ (gilbert, 2018: 341). for this to happen, a broader joint commitment ‘comprising both citizens and other residents as well’ (gilbert, 2018: 341) should be reached. this confirms the political character of her conception since possession and realisation of human rights basically depends on the existing institutional structure. in the next section, i will outline the most important problematic issues of gilbert’s political approach to human rights as legal demand-rights. 11 see a similar standpoint in habermas, 1996: 155-157. international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 382 3. some problematic issues prior to my critique, i would like to draw attention to three practical consequences of gilbert’s state-centric view of human rights as legal demand-rights. the first and most evident consequence is that gilbert lifts the metaphysical veil with which many human rights theories are covered, assigning human beings the primary function in the creation and realisation of these rights. this is a positive thing, because even though we can commit the worst abuses against human beings, it is always encouraging to know that what happens to human rights is the exclusive result of our action. thus, the transparency of a position that makes the content of the concept dependent on human beings is one of its central benefits. the second consequence is that gilbert’s position is in line with international human rights law, which expressly assigns the role of addressees of these rights to states and, more specifically, requires them to design national legal frameworks that enable the realisation of human rights that they have approved at the international level. by way of example, the preamble of the universal declaration of human rights (henceforth udhr) states that human rights ‘should be protected by the rule of law’ and that states have to implement ‘progressive measures, national and international’ to secure the universal and effective recognition and observance of human rights.12 this should be highlighted as a third crucial result, as she manages to circumvent, to a certain extent, one of the weakest aspects of international law: the lack of institutions with coercive powers. in practical terms, it is necessary and desirable that states be ‘the central participants’ and ‘the principal targets’ (gilbert, 2018: 338) of human rights. state’s action is a guarantee for realising human rights. all the same, careful consideration of gilbert’s approach shows that there are some problematic points that run counter to the contemporary international practice of human rights and, most of all, could make it even more difficult to implement them. the following pages set out two of these problematic points and their most emblematic practical consequence which concern the role of states. 12 similar examples include the international covenant on economic, social and cultural rights (henceforth icescr), art. 2(1): ‘each state party to the present covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures’; the international covenant on civil and political rights (henceforth iccpr), art. 2(2): ‘where not already provided for by existing legislative or other measures, each state party to the present covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present covenant’; the vienna declaration and programme of action (henceforth vdpa), para. 15: ‘there is a need for states and international organizations, in cooperation with non-governmental organizations, to create favourable conditions at the national, regional and international levels to ensure the full and effective enjoyment of human rights. states should eliminate all violations of human rights and their causes, as well as obstacles to the enjoyment of these rights’. johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 383 3. 1. joint commitments: a limited view of the international human rights practice some scholars13 hold that states are crucial to the realisation of human rights. as we saw above, gilbert follows this path and agrees with beitz in his view that states have a fundamental function in the international practice of human rights. nevertheless, whilst states are crucial for realising human rights, this does not in any way support the view that legal human rights and the corresponding legal standing to demand are entirely dependent upon joint commitments by states. the fact is that the international practice, i.e., treaties, declarations, and other types of international human rights norms to which gilbert constantly refers, asserts the opposite of what she claims. the udhr, the icescr, and the iccpr, for instance, hold that states recognise human rights, which means that these rights exist even before the udhr and any other legal document that refers to them.14 if we are more accurate and consider the question about the source of human rights, we find that the preambles of the icescr and the iccpr state that human rights ‘derive from the inherent dignity of the human person’. at the same time, the preamble of the vdpa – one of the most influential declarations on human rights – recognises and affirms ‘that all human rights derive from the dignity and worth inherent in the human person’. at first glance, these three texts would be good examples of what gilbert has in mind when she mentions agreements that ‘would be seen to be a paradigm case of a joint commitment’ (gilbert, 2018: 339) due to the broad support they receive from the international community.15 despite this, the paragraphs cited above back the opposite position that gilbert has tried to sustain throughout rights and demands. contrary to gilbert’s argument, the two international treaties and the vdpa maintain that human rights are fundamentally rights whose existence does not depend on the will of states. what is 13 see, e.g., arendt, (1968: chapter 9), alexy (1998: 254-258), martin (2013: 8), and donnelly (2013: 32-33). 14 udhr, preamble: ‘[r]ecognizing and affirming that all human rights derive from the dignity and worth inherent in the human person’; icescr, preamble: ‘[c]onsidering that, in accordance with the principles proclaimed in the charter of the united nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’; iccpr, preamble: ‘[c]onsidering that, in accordance with the principles proclaimed in the charter of the united nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. i mention these three documents because they are part of the international charter of human rights, but there are other international documents that refers to the same idea. see, for instance, convention on the elimination of all forms of discrimination against women, preamble: ‘[n]oting that the universal declaration of human rights affirms […] that all human beings are born free and equal in dignity and rights’; international convention on the elimination of all forms of racial discrimination, preamble: ‘[c]onsidering that the universal declaration of human rights proclaims that all human beings are born free and equal in dignity and rights’; convention against torture and other cruel, inhuman or degrading treatment or punishment, preamble: ‘[r]ecognizing that those rights derive from the inherent dignity of the human person’; african charter on human and peoples’ rights, preamble: ‘[r]ecognizing on the one hand, that fundamental human rights stem from the attributes of human beings’; american convention on human rights, preamble: ‘[r]ecognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality’. 15 the icescr and the iccpr have been ratified by 173 states and 171 states, respectively; as for the vdpa, 171 states have adopted it by consensus. international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 384 more, they uphold that the human rights outlined in the above-mentioned treaties and declarations drew on one of the most important moral value of contemporary societies: human dignity. in the context of the above-mentioned texts, states do not determine whether there are human rights. contrary to what gilbert thinks, it does not follow from the fact that human rights are an international practice of states that legal human rights and the legal standing to demand their enforcement are, plainly and simply, the outcome of a political process. as gilabert puts it, ‘that we have to “recognize” humans’ dignity and their rights is incompatible with assuming that the utterances of the declaration simply create them’ (gilabert, 2018: 41). it would certainly be absurd to deny that human rights treaties and declarations have a conventional nature. but one must hold in mind that the purpose of the agreement on which these texts are based is not to create human rights, but to express the willingness of states to accept that such rights already exist – even before they recognise them. and both the pre-existence of human rights and their recognition by states do have an impact on the granting of the legal standing to demand that they are respected. in this sense, the inter-american court of human rights has held ‘that human rights are inherent attributes of human dignity’, and the ‘first obligation assumed by the states parties […] is “to respect the rights and freedoms” recognized by the convention’ (i/a court h.r., case of velásquez rodríguez v. honduras. merits. judgment of july 29, 1988: para. 165). a similar criterion is to be found in some advisory opinions of this court. for instance: ‘the protection of human rights, particularly the civil and political rights set forth in the convention, is in effect based on the affirmation of the existence of certain inviolable attributes of the individual that cannot be legitimately restricted through the exercise of governmental power’ (i/a court h.r., advisory opinion oc-6/86 of may 9, 1986: para. 21); ‘the inter-american system has established that from the rights recognised to human beings derive their essential character. therefore, these rights “are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality”. the existence of the rights recognised in the convention corresponds to the very nature of human beings as subjects of rights’ (i/a court h.r., advisory opinion oc22/16 of february 26, 2016: para. 108).16 this is an international practice of human rights that has been accepted and applied by member states of the organisation of american states. this shows at least that gilbert’ point of view is not as unanimous as she thinks. gilbert could simply reply that even if human rights exist irrespective of states’ will, only the joint commitment of states grounds the legal standing to demand that these rights be respected. behind such an assertion lies a false dilemma fallacy regarding what the political reality of human rights is. it is true that the formal political process – such as joint commitments between states – is essential for individuals to have the legal standing to demand, but this does not mean that such a process is sufficient. politics, law, and morality are social realities that are interconnected and complement each other when arguing in the normative sphere (nino, 1994: 79-83). moral argumentation constantly appears in the political-legal discourse to provide legitimacy and justification. in the human rights 16 regarding the advisory opinion oc-22/16, see also paragraphs 46, 48, and 109. johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 385 realm, states assume – by means of international practice reflected in declarations, treaties, judicial decisions of international courts, etc. – that the rights that have been recognised are morally sound. and it is this moral relevance that justifies individuals having the faculty to demand that political institutions respect their human rights. take, for instance, the icescr and the human rights to work (art. 6.1), to social security (art. 9), to health (art. 12), and to education (art. 13) contained therein. the icescr does no more than recognise that we are dealing with situations which are extremely valuable for human life. if we dispense with such situations, there is a risk that our lives will be profoundly damaged. it is precisely this what makes these rights morally valuable, and this in turn leads to the demand for the support of political institutions to protect them. the legal standing to demand the protection of our human rights does not solely depend on the formal joint commitments of states, but also on moral considerations that justify the granting of such legal standing to demand. thus, the status of the human in moral terms is present in international human rights practice (luban, 2015: 269; gilabert, 2018: 43). the explanations of social reality can rarely be made from a single perspective, and this is what happens in the specific case of the legal standing to demand respect for human rights: it is the convergence of moral considerations and the political process of joint commitments by states that gives rise to its existence. this would dissolve the false dilemma fallacy into which some strong supporters of gilbert’s ideas might lapse. peremptory norms, also known as ius cogens, could be an example of what has been said so far. the main feature of peremptory norms is that they cannot be modified by states, so that a ‘treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’ (vienna convention on the law of treaties: art. 53). although legal scholars profusely discuss which norms have the status of ius cogens, such an status is doubtless given by the international practice to some human rights: prohibition of torture, genocide, crimes against humanity, racial discrimination, slavery, and the right to self-determination. these norms result in erga omnes obligations that constrain every state, independently of any prior commitment, ratification, or voluntary recognition. states cannot get into any joint commitment against these norms since they are not allowed to decide whether to follow them or not. although only some human rights are peremptory norms, this also would confirm that moral considerations limit the will of states while deciding to grant the respective legal standing to demand respect for such rights. discussions around what norms qualify as jus cogens are certainly extensive and complex, but they would also offer a reasonable path to explore the ways in which morality relates to joint commitments regarding human rights. unfortunately, such a task exceeds the scope of this paper.17 in sum, while joint commitments by states are necessary to have legal human rights and legal standing to demand respect for human rights, this political process alone is not enough. moral considerations also play a key role in international human rights practice to both enter treaties and declarations and grant a legal standing to demand. 17 for further details, see o’connell (2011: 78-98), (šturma 2015, pp. 11-21), united nations (2019: 13-16), and murphy (2020: 68-86). international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 386 3.2. reinforcing the dominant role of states gilbert admits that states are responsible for human rights violations. however, what she emphasises throughout her work is the role state have in creating and granting the legal standing to demand. this way of thinking has a practical consequence that could have a profound negative effect on our political life. her state-centric conception tends to reinforce the dominant position of states vis-à-vis the individuals. the fact is that states are in a dual position concerning human rights: they are currently the most important institutions for ensuring respect for human rights – as already noted –, but they are also undeniably the principal violators of human rights. unfortunately, the large institutional apparatus available to states has not only been used to protect the interests of individuals but also to harm them in the most essential aspects of human existence: life, health, freedom of expression, etc.18 one of the most horrible experiences that confirms this has been the nazi regime, and there have been, and there are many others: lenin and stalin installed deliberately a regime of terror in the soviet union. today venezuela – among many other states – is following their path: ‘from 1 january 2014 to 15 july 2020, the non-governmental organisation (ngo) foro penal registered 3,479 cases of politically motivated detention, of which 902 (26 per cent) were selective detentions, with the remainder taking place in the context of protests’ (united nations, report of the independent international fact-finding mission on the bolivarian republic of venezuela, 2020: para. 25). even many states that do not use their institutions to violate human rights of individuals directly present significant problems, as their malfunctioning facilitates or even permits human rights violations, such as colombia: ‘in 2020, ohchr registered the killing of 133 human rights defenders […]. the killings of human rights defenders occurred primarily in areas with insufficient state presence’ (united nations, situation of human rights in colombia, 2021: para. 21). other states have efficient institutions but violate human rights of individuals in specific situations. see, for instance, the case of shamina begum, who joined isis in 2015 and was stripped of her british citizenship by the united kingdom for security reasons. the fact that she cannot return to the united kingdom to defend herself judicially19 clearly violates her human rights to a fair trial and due process, as set out in articles 10 and 11 of the udhr. these are just a few examples that show how states limit the extent of human rights. following gilbert’s approach, the end result is that states have the final say in deciding which human rights norms will turn into treaties, and thereafter into national law, and which ones will not. in this vein, this approach is problematic because it leads us to the assertion that human rights are legally respected only to the extent to which states accept that such rights must be respected by themselves. this is like allowing criminals to choose whether they want to be governed by law or not. this is inconsistent with the logic of any normative system, in particular any legal system. even more important in the field of human rights is that this way of seeing things contradicts the historical development of 18 see, e.g., donnelly, 2013: 33. 19 see bbc, 2021. johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 387 human rights, which are mainly the result of dramatic social and political confrontations against states that oppress their citizens.20 in habermas’ words: ‘the appeal to human rights feeds off the outrage of the humiliated at the violation of their human dignity’ (habermas, 2010: 466). gilbert might retort that individuals are co-creators of law and legal human rights since states create international treaties on human rights, and turn them into legal rights, based on a foundational commitment that authorises them to do so, i.e., citizens authorise states to make these decisions on their behalf. one could then ask whether a foundational joint commitment can really be seen as a very broad power given to the state to decide whether to grant individuals legal standing to demand. from a practical perspective, i do not believe that this first joint commitment should be seen as a blank cheque – a quasihobbesian power – on human rights granted to states. again, it seems to be a mistake to claim respect for human rights and, at the same time, to allow the perpetrator of violations against them to decide if and to what extent he is obliged to respect such rights. resorting to the foundational joint commitment is an argumentative device that fits well in gilbert’s proposal but is far away from reality. the history of human rights, once again, speaks against such an argument: it is not a history of agreements between the state and citizens, but of the struggle for their respect. this is the core and original idea of human rights: to limit the power of the state vis-à-vis individuals, and there are strong moral arguments for this. of course, it can be said that the foundational joint commitment authorises states just to adopt treaties and other international norms when they deem that the political and economic conditions exist to do so. this would serve to confirm that joint commitments by states only enforce the will of citizens, but this does not exclude that moral considerations are always present as arguments that demand and legitimise the existence of legal standing to demand. here we return to the same point already discussed: moral considerations are part of the explanation why citizens possess the legal standing to demand; joint commitments by states are neither the final nor the only reason. perhaps a supporter of gilbert’s theory might argue that human rights movements act in line with gilbert’s proposal when they seek to force states to recognise and respect these rights. however, this view is not in harmony with gilbert’s approach. joint commitments are commitments of free will, and if social movements force states to recognise human rights, there would be no joint commitment at all, since states would recognise human rights because of the coercion being exerted on it. before concluding this section, l would like to add a brief comment. gilbert asserts that states are ‘the principal targets’ (gilbert, 2018: 338) in the international practice of human rights and that individual citizens not only have derivative demand-rights against other signatory states, but also against their own state (gilbert, 2018: 31). it is as if solely states are responsible for the realisation of human rights. yet we must recognise 20 see, e.g., felice (1996: 1-8), zeleza (2007: 475-485), and lohmann (2015: 375). international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 388 that there is a progressive establishment of institutions that try to promote respect for human rights in real life, both in the international and regional spheres. the international criminal court, the inter-american court of human rights, the african court on human and peoples’ rights, and the european court of human rights are some of the official organisations that work to enable the enjoyment and respect of human rights. some other organisations, such as the office of the united nations high commissioner for human rights, monitor the activity of states constantly and help them to improve and promote respect for human rights. without corresponding action by states, the realisation of human rights cannot be achieved, but this objective, however, cannot be a task exclusive to states, as gilbert’s approach seems to assert. what i want to draw attention to is that, even when she talks about the responsibility of states, she reinforces their dominant position vis-à-vis individuals. more importantly, the wide margin of freedom that gilbert leaves to states for celebrating joint commitments can become a very dangerous instrument against individuals. at the end of the day everything related to the granting of the legal standing to demand the respect for human rights would remain in the hands of states. thus, gilbert’s state-centric conception can lead to practical consequences that reinforce the dominant position of states vis-à-vis the individuals, who are the victims of human rights violations. 4. suggestion in what follows, i would like to make a brief suggestion to make gilbert’s proposal more suitable regarding the international practice of human rights. i accept gilbert’s antimetaphysical approach and the value of legal rights for the realisation of human rights; i think it is feasible to base human rights on social interaction – on social facts – that takes place in human rights-based societies. discourses that start from the idea that we possess human rights by nature, because of god or reason are fictions that try to silence the fact that these are rights that are more fragile than we want them to be. however, as i mentioned before, gilbert asserts that human rights can be both moral and legal, but these two approaches need not coincide; at the same time, she pays special attention to the political aspect. thus, according to her, human rights as legal demand-rights and the corresponding legal standing to demand compliance with them can be regarded independently of possible moral considerations. in contrast to gilbert, i think that it is necessary to accept that the reality of these rights is inevitably linked to our deepest moral concerns. the satisfaction of our most vital needs and the protection of inalienable interests are at stake here. in other words, we are dealing with our basic understanding of what means to be human being, and this is morally significant. the moral considerations i am mentioning are anti-metaphysical and originate in social reality. the discourse of human rights grounded in political and moral practice as social facts would nourish, strengthen, and enrich the international practice of human rights. put another way, i am convinced that the international practice of human rights implies a dual nature: political and moral. these two aspects cannot go through different paths, since they are connected to each other in such a way that there is a johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 389 constant continuity between them that manifests itself in practice. consequently, it is most appropriate to propose approaches that combine these two spheres.21 in proposing the connection between anti-metaphysical morality and political aspects of human rights, i do not remain on a theoretical level. on the contrary, i believe that there are pragmatic reasons for it, i.e., international human rights practice shows that moral considerations, as well as political processes, have crucial impacts on the realisation of human rights and on the existence of the legal standing to demand. such reasons are pragmatic since they arise directly from the practice of human rights and not from theory (luban, 2015: 275). three pragmatic reasons are important here. first, as i have shown above, moral considerations occupy a prominent place in the contemporary international practice of human rights. that is why, for instance, human dignity is one of the essential and cross-cutting moral values in the legal notion of human rights.22 exactly the same can be said regarding equality, and it is impossible to envision human rights apart from or in denial of this fundamental moral value.23 second, the legal-political process embodied in the joint commitments by states is not sufficient in itself to legitimise and justify the content of these rights nor the possession of the legal standing to demand. this is also a task of morality.24 for example, the human rights to a fair trial and to health are legitimate and we have the corresponding legal standing to demand compliance with them not just because it is established by certain legal norms that represent joint commitments between states but because there are moral reasons that support them. third, moral considerations serve as a motivation to support legal norms that attempt to realise respect for human rights. as gilabert (2018: 43) has argued, morality helps to maintain the stability of the legal regime of human rights. this third reason requires a special attention, as it alludes directly to the realisation of human rights, something to which gilbert is committed, if i understand her correctly. such pragmatic reasons in support of the connection between the political and the moral approach, in the way i suggest in this paper, helps avoiding the negative consequences mentioned in the third section. firstly, the anti-metaphysical moral considerations are compatible with the idea of joint commitments by states, and it is useful therefore in explaining why legitimacy, the legal standing to demand, and the realisation of human rights are also connected to moral considerations without going against the idea that these rights are outcomes 21 see similar approaches in lohmann (1998: 89-95), sangiovanni (2017: 191), and gilabert (2018: 32-37). they certainly have different views on moral in general, but they agree on how decisive moral considerations are in the elaboration of an appropriate conception of human rights. 22 see footnote 14. the preamble of the udhr, for instance, is categorical in “affirming that all human rights derive from the dignity and worth inherent in the human person”. 23 see, e.g., udhr, preamble and articles 1, 7, 10, 16, 21, 23, 16; iccpr, preamble and articles 3, 14, 23, 25, 26; icescr, preamble and articles 3, 7, 13. 24 unlike in nature, where things just exist, in the normative realm it is necessary to justify and legitimise why norms regulating the behaviour of agents are created. the main reason is that norms normally seek to regulate freedom, to limit it. in this sense, legal human rights and the legal standing to demand their respect limit the freedom of action of states, which are fundamental actors in socio-political life. therefore, justification and legitimation are relevant to a theory of the existence of legal human rights. international practice of human rights as legal demand-rights: a critical approach the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 390 of social interactions. secondly, since moral considerations are independent of states and states are in fact bound to them aiming to promote respect for human rights, individuals retain their primary role in the international practice of human rights, which averts the highly undesirable consequence of reinforcing the state’s dominant position vis-à-vis individuals. i am aware that there are other points in gilbert’s approach to human rights that require a more detailed and in-depth analysis, her strong voluntaristic point of view being one of them (steinfath, 2019: 177-194). however, a detailed analysis of these issues goes beyond the scope of this paper. 5. conclusion gilbert’s political point of view about human rights is a persuasive one. yet, i have assessed the claim that her proposal contains some problematic issues connected to her conception of human rights as legal demand-rights. first, i have shown that her proposal does not fully coincide with the international human rights practice. the rationale is that this practice does not only focus on joint commitments by states as source of legal human rights and the legal standing to demand compliance with them, but they are also largely determined by moral considerations. without moral considerations it is impossible to understand the international practice of human rights in its entirety: why they exist, why we have the legal standing to demand respect for these rights, and how it is possible to realise them. second, gilbert’s approach could lead to a practical consequence that is very detrimental for individuals. in this regard, this paper has highlighted that the main strength of gilbert’s approach seems to also be its main weakness, namely, the institutional character that prioritises the function of states or the state-centric conception. state institutions are indisputable supports for the realisation of human rights, which are achieved, for instance, through the judiciary and political policies. on the other side of the coin, human rights have as principal goals to reject and limit the exercise of arbitrary state power over individuals and, at the same time, to make states establish minimum conditions for a dignified life within the framework of social justice. positioning states as the leading participants in human rights matters and allowing the existence of legal human rights and the legal standing to demand to depend entirely on the will of states – not to mention that their enforcement is the exclusive responsibility of states – makes it more complicated to achieve both goals and may leave the individuals defenceless vis-à-vis states. such a statecentric conception is a dangerous move that can have practical consequences that pose a threat to the very idea of human rights and their realisation. such consequences can be overcome by means of an approach that supports the moral and political nature of human rights rooted in social reality. let me get this straight: i do not deny the strengths of gilbert’s political approach when it comes to understanding the reality of human rights. what i argue is that joint commitments between states can only explain a part of the international practice of human rights, as moral considerations also play a leading role. both aspects, moral and political, are interconnected and it is a mistake to lessen the importance of any of them. international practice is emphatic on this matter and there are pragmatic reasons to accept it. johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 391 references alexy, r. 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(2019). ‘joint activities and moral obligation’, in n. roughley & k. bayertz (eds.), the normative animal? on the anthropological significance of social, moral and linguistic norms. new york: oxford university press, pp. 177194. https://doi.org/10.1093/oso/9780190846466.003.0009 šturma, p. (2015). ‘human rights as an example of peremptory norms’, in p. šturma, n. baez et al. (eds.), international and internal mechanisms of fundamental rights effectiveness. passau-berlin-prague: unoesc, rw&w, pp. 11-21. tasioulas, j. (2013). ‘human dignity and the foundations of human rights’, in c. mccrudden (ed.), understanding human dignity. oxford: oxford university press, pp. 293-314. https://doi.org/10.5871/bacad/9780197265642.003.0016 tasioulas, j. (2015) ‘on the foundations of human rights’, in r. cruft, m. liao & m. massimo (eds.), philosophical foundations of human rights. oxfordnew york: oxford university press, pp. 45-76. https://doi.org/10.1093/ acprof:oso/9780199688623.003.0002 united nations (1948). universal declaration of human rights, (10 december 1948), g.a. res. 217a (iii). united nations (1965). international convention on the elimination of all forms of racial discrimination (21 september 1965), 660 u.n.t.s. 195. united nations (1966). international covenant on economic, social and cultural rights (16 december 1966), 993 u.n.t.s. 3. united nations (1966). international covenant on civil and political rights, (16 december 1966), 999 u.n.t.s. 171. united nations (1969). vienna convention on the law of treaties, opened for signature (23 may 1969), 115 u.n.t.s. 331. united nations (1979). convention on the elimination of all forms of discrimination against women (18 december 1979), 1249 u.n.t.s. 13. united nations (1984). convention against torture and other cruel, inhuman or degrading treatment or punishment (10 december 1984), 1465 u.n.t.s. 85. united nations (1993) vienna declaration and programme of action (25 june 1993), u.n. doc. a/conf. 157/23. united nations (2019). fourth report on peremptory norms of general international law (jus cogens). no a/cn.4/727, ilc. united nations (2020). report of the independent international fact-finding mission on the bolivarian republic of venezuela (25 september 2020). no a/hrc/45/33. available at https://undocs.org/en/a/hrc/45/33 united nations (2021). situation of human rights in colombia. report of the united nations high commissioner for human rights (17 march 2021). no a/hrc/46/76. available at https://undocs.org/a/hrc/46/76 https://doi.org/10.1093/oso/9780190846466.003.0009 https://doi.org/10.5871/bacad/9780197265642.003.0016 https://doi.org/10.1093/acprof:oso/9780199688623.003.0002 https://doi.org/10.1093/acprof:oso/9780199688623.003.0002 https://undocs.org/en/a/hrc/45/33 https://undocs.org/a/hrc/46/76 johnny antonio dávila the age of human rights journal, 18 (june 2022) pp. 377-395 issn: 2340-9592 doi: 10.17561/tahrj.v18.6735 395 zeleza, p. (2007). ‘the struggle for human rights in africa’, canadian journal of african studies, 41(3), pp. 474-506. https://doi.org/10.1080/00083968.2007.107 51366 received: november 16th 2021 accepted: march 8th 2022 https://doi.org/10.1080/00083968.2007.10751366 https://doi.org/10.1080/00083968.2007.10751366 international practice of human rights as legal demand-rights: a critical approach abstract 1. introduction 2. human rights as an international practice 2.1. legal demand-rights, joint commitment, and free-standing moral rights 2.2. international legal human rights and joint commitments 3. some problematic issues 3. 1. joint commitments: a limited view of the international human rights practice 3.2. reinforcing the dominant role of states 4. suggestion 5. conclusion references right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 239 right to health care: the practice of the ecthr and the case of ukraine oleg m. yaroshenko1 volodymyr m. steshenko2 oleh v. tarasov2 ilkin s.o. nurullaiev2 mariia i. shvartseva2 abstract: the relevance of the research topic is due to the importance of human rights observance in a democratic society. moreover, for a long time the relevant law was not given due attention neither in legislation nor in legal science. the right to health is comprehensive and includes other human rights that derive from it. the existing case law of the european court of human rights (ecthr) confirms the importance of the human right to health. in its judgments, the court emphasizes the importance of this right and reaffirms the need for states to monitor its observance. the aim of the study – analysis of international legal norms and standards, as well as the practice of the ecthr in the context of the human right to health. the leading research method used in the article is the formal-legal method, the application of which provided an effective analysis of the legal framework of international law, national legislation of ukraine, and the case law of the ecthr, which, in turn, allowed to determine the importance of human rights to health and places of relevant law in the practice of the ecthr. the article analyzes the theoretical and legal approaches to understanding the right to health care and on this basis identifies the place of relevant law in the human rights system and its main determinants. the case law of the european court of human rights is analyzed and the main articles of the european convention on human rights (echr), which the applicants applied for in violation of the right to health care, are identified. the analysis of the case law of the ecthr provided an opportunity to identify existing shortcomings in the legislation of the member states and of ukraine. based on this, it is possible to understand and distinguish ways to solve problems and methods for eliminating such violations in the future. the practical significance of the article lies in the analysis of the case law of the european court of human rights, the separation of rights related to the right to life protection, as well as the application of ecthr decisions to improve existing domestic legislation. keywords: human rights, right to health care, the european court of human rights, protection of human rights, right to health. summary: 1. introduction. 2. the concept of human rights in health care. 3. protection of human rights in health care in the system of international law. 4. the right to health in legal acts of the council of europe. 5. the practice of the ecthr in health care and its significance. 6. received experience and development prospects. 7. conclusion and recommendations. 1. introduction for a long time, human rights to health care were not in the spotlight, but secondary to the general spectrum of human rights. moreover, the mechanisms for 1 department of labor law yaroslav mudryi national law university, ukraine (oleg-yaroshenko@edu-knu.com). 2 department of international law yaroslav mudryi national law university, ukraine. mailto:oleg-yaroshenko%40edu-knu.com?subject= right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 240 exercising such rights were not properly enshrined in national legislation. this situation can be explained by two main factors. first, the legislator did not have a significant interest in the development of the industry. second, there was a lack of funding for its proper implementation. furthermore, the very complexity of the medical field, directly related to health care, has influenced the formation of the place of relevant rights among human rights. however, over time, the situation has begun to change as the provisions governing the implementation of health rights and other components of their provision are increasingly implemented by countries into their constitutions and national legislation as fundamental and guaranteed rights. significant changes in the protection of human rights in the field of health care have taken place due to the pandemic of coronavirus infection covid-19 (sars-cov-2, 2019-ncov). the large number of human victims affected by the disease has drawn the attention of the international community not only to the problem of the infection itself, but also to the need to respect human rights in health care and the need to reform the health care system. the office of the united nations high commissioner for human rights (ohchr) has provided human rights-oriented measures to combat the spread of covid-19 coronavirus infection. in particular, he noted that health policy should take into account not only the medical aspects of the pandemic, but also the human rights and gender implications of health measures. he also stated that emergency powers should be used legally, in the interests of public health, and not as a basis for suppressing dissent or silencing the activities of human rights defenders or journalists. the ohchr also noted that restrictive measures, such as social distancing and self-isolation, should take into account the needs of people who rely on other people for food, clothing, etc. many people, including people with disabilities, rely on the family and social services in these aspects (protecting human rights in a covid-19 pandemic, 2020). it is also worth noting that in 2020, as a result of the coronavirus pandemic, most council of europe member states exercised the right to derogate from the provisions of the european convention on human rights. among them: albania, armenia, estonia, san marino, romania and others. according to art. 15 of the echr, such a derogation is allowed from certain obligations to protect human rights, including such rights as the right to respect for private life, freedom of thought, religion and conscience. at the same time, the derogation does not give states the right to spontaneously violate human rights. as mentioned in the statement on the interpretation of the right to health during the pandemic of the european committee on social rights of 2020: “in times of pandemic, in which the lives and health of many people are seriously threatened, the right to health is guaranteed and it of particular importance, and governments must take all necessary steps to ensure that it is effectively guaranteed. in view of this, member states have an obligation to ensure that the right to health is given the highest priority in policies, legislation and other activities in response to a pandemic.” (statement on the right to protection of health during a pandemic, 2020). thus, the protection of human rights in the field of health care has become important and increasingly reflected in international law at various levels. despite positive changes in ensuring the highest attainable level of physical and mental health, everyone without exception is unable to fully exercise their right to health oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 241 care, and for most marginalized and most vulnerable populations, the highest achievable level of health remains unavailable. many people face discrimination, violations of their fundamental rights and abuse by healthcare professionals when accessing healthcare facilities (bern et al., 2012). for example, in ukraine, the relevant issue began to receive considerable attention even after the medical reform in 2016. after the ministry of health of ukraine (the moh of ukraine) began a gradual and consistent reform of the health care system, all the problems and aggravations that have existed for a long time within the system and negatively affected the protection of human rights came to the surface. moreover, the identified problems raised objective concerns of patients about the violation of their rights. all participants in this reform, both on the part of the authorities and on the part of the health care system and, accordingly, patients themselves, substantiate their position on the health care reform system, appealing to human rights, articles of the constitution of ukraine, international obligations of the state, law and standards of the council of europe, etc. (rohansky, 2017). according to art. 3 of the constitution it is stipulated that: “… life and health, honor and dignity, inviolability and security are recognized in ukraine as the highest social value”. according to art. 27 of the constitution, everyone has the inalienable right to life. no one can be arbitrarily deprived of life. the duty of the state is to protect human life. everyone has the right to protect his life and health, the lives and health of others from unlawful encroachment. in art. 43 noted that everyone has the right to adequate, safe and healthy working conditions, to a salary not lower than that prescribed by law (constitution of ukraine, 1996). in addition, the right to health care is enshrined in other regulations. first of all, it is necessary to emphasize the law of ukraine “fundamentals of ukrainian legislation on health care” of 1993. it states that everyone has a natural inalienable and inviolable right to health care. society and the state are responsible to present and future generations for the level of health and preservation of the gene pool of the people of ukraine, ensure the priority of health care in the state, improving working conditions, education, living and recreation, solving environmental problems, improving health care and the introduction of a healthy lifestyle. this law defines the legal, organizational, economic and social principles of health care in ukraine, regulates public relations in this area in order to ensure the harmonious development of physical and spiritual strength, high efficiency and long active life of citizens, eliminating factors that adversely affect their health, prevention and reduction of morbidity, disability and mortality, improvement of heredity (fundamentals of ukrainian legislation on health care, 1993). public administration can be called one of the key foundations of the functioning of an independent state, and therefore determining the foundations of the functioning of the public sphere in the field of medicine plays an important role for the future development of ukraine. the right to life, health, respect, protection of honor, dignity, inviolability and security in a democratically organized society are recognized as the highest social value, and their establishment and provision are considered the main duty of the state right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 242 and one of the main priorities of public administration (leshchenko & radishch, 2014). thus, the issue of health care regulation is regulated in many international legal acts, including a number of those ratified by ukraine. the relevant issue also deservedly took its place among the acts of the council of europe and the case law of the european court of human rights (hereinafter – the ecthr). the importance of jurisprudence is difficult to overestimate, as it has a practical impact on the council of europe member states, highlights and challenges pressing societies, and sets important precedents for further consideration of similar cases, reform of public health systems, and takes action for restoration of the violated right of citizens. based on the above, the purpose of the article is to analyze international legal norms and standards, as well as the practice of the ecthr in the context of the human right to health. in the course of the research the author applied a system of general scientific, philosophical and special methods, the application of which ensures the reliability of the obtained results and achievement of the formulated goal of the article. the formal-legal method is used to analyze the understanding of the right to health care and its components, as well as the legal regulation of relevant law at the international level and in acts of national legislation of ukraine. in addition, the formal-legal method is used to analyze the case law of the european court of human rights. the method of scientific knowledge is used to study the features of the right to health care. the application of the system method made it possible to summarize the information on the studied features, as well as the constituent elements of the right to health care. the method of analysis and synthesis made it possible to process theoretical information, international legal acts, case law and on their basis to identify problems that exist in the research area and ways to solve them. strict analysis is a serious guarantee of the logic of the presentation of the article. the comparative method was used by the author to compare and analyze international legal norms, legislation of ukraine and analyze the compliance of domestic legal norms with international requirements and standards. in addition, the method of comparison was used to analyze the case law of the ecthr in the context of the research topic and the law of the council of europe on the protection of the human right to health. the application of the historical-logical method provided an opportunity to obtain theoretical results of the study on the formation of awareness of the international community of the importance of the human right to health care and the gradual transition to its legal regulation. to formulate the conclusions of the article, the author used the method of deduction, which consists in substantiating the author's conclusion on the basis of individual judgments of the authors, separate legislation and case law. 2. the concept of human rights in health care before proceeding to the analysis of the practical component of human rights in the field of health care, it is appropriate to consider the theoretical aspects of the issue. yes, the right to life and health care are natural and inalienable rights of every citizen. they are recognized even by those countries in whose constitutions have not been enshrined (leshchenko & radishch, 2014). ukrainian researcher a.v. semenova (2014) notes that the right to health care should be attributed to inalienable and those oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 243 that belong to a person from birth. the researcher defines that the relevant law in a broad sense is a set of legal norms that regulate public relations arising in the field of health care and aimed at ensuring the health of each person, maintaining his ability to work, longevity and active life, as well as eliminating and preventing the emergence of factors that may adversely affect human health and quality of life. a.v. semenova also emphasizes that the relevant right arises before the onset of factors that may adversely affect human well-being. with the onset of these factors, a person has the right to require competent persons and organizations to eliminate the factors and ensure health and other related benefits (semenova, 2014). another ukrainian scientist z.s. skaletska notes that the right to health care is a person's right to preserve and develop physiological and psychological functions, optimal performance and social activity of a person with the maximum biologically possible individual life expectancy. that is, this researcher in this definition places more emphasis on the physiological component of the relevant law than on the legal one (skaletska, 2009). as noted by ukrainian scientist yu. shvets, in the narrow sense, health care should be considered as a system of legal, socio-economic and treatment-and-prophylactic measures and means aimed at preserving human health. thus, the human right to health includes both freedoms and rights. constitutional freedoms include, for example, the freedom to control one's health and body, including sexual and reproductive freedom (shvets, 2017). in the joint work of british and american researchers m. maruthappu, r. ologunde, a. gunarajasingam scientists note that the right to health care is a set of political, economic, legal, social, cultural, scientific, medical, sanitary and hygienic measures and antiepidemiological nature, aimed at preserving and strengthening the physical and mental health of each person, maintaining his long active life, providing him with medical care in case of health loss (maruthappu et al., 2013). as rightly noted by american researchers k. footer, l. rubenstein, the right to health care is one of the most important social rights of man and citizen because health is the highest good of man, without which many other benefits and values lose their value. at the same time, it is not only a personal good of the citizen, but also has a social character (footer & rubenstein, 2013). thus, based on the above, we can conclude that human rights to health are natural rights that are reflected in international and domestic legal acts, are inalienable, protected by the state and guarantee human health and medical care in occurrence of the disease. it should also be noted that the right to health care includes all the rights granted to the subjects of medical relations relating to this area. these include: the right to informed consent, the right to free choice of doctor and health care institution, the right to medical secrecy and confidentiality, the right to protection of violated rights and the right to access services in the health care system (health and human rights: a resource guide, 2015). 3. protection of human rights in health care in the system of international law human rights in the field of health care are based on the standards of the international concept of human rights, many of which are reflected in international treaties and national right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 244 legal acts. thus, at the universal level, the relevant right is enshrined in the documents of the un system, in particular, in the constitution of the world health organization (hereinafter – who) of 1946, which stated that “the highest achievable level of health is one of fundamental rights of every human being” (constitution of the world health organization, 1946). in addition, many international legal instruments do not contain a direct rule on the protection of the right to health care, but in one way or another address it in their articles. for example, the universal declaration of human rights (hereinafter referred to as the udhr) of 1948 does not explicitly mention the right to health care. however, it contains art. 25, which regulates the human right to: “… a standard of living, including food, clothing, housing, medical care and necessary social services, which is necessary to maintain health and well-being…” (universal declaration of human rights, 1948). in the international covenant on economic, social and cultural rights (icescr) of 1966, art. 12 states that states recognize the right of everyone to the highest attainable standard of physical and mental health. for the fulfillment of that, they have the following responsibilities: to ensure the reduction of child mortality and healthy child development; improve all aspects of occupational health and the environment; prevent epidemic, endemic and occupational diseases; create conditions for the provision of medical care and medical care for all (international covenant on civil and political rights, 1966). determining the right to health, enshrined in icescr became widely used (international covenant on economic, social and cultural rights, 1966). committee on economic, social and cultural rights is the body authorized to monitor compliance on the icescr, which, in turn, issued a comment on the right to health no. 14 of 2000. the comment provides authoritative guidance on the fulfillment by the member states of the treaty of their contractual obligations. despite the fact that comment no. 14 is of a recommendatory nature, the document expresses the main directions and painful issues of the relevant field of rights (yaroshenko et al., 2020). the comment states that the right to health is a short form for the right to the highest attainable standard of physical and mental health. the right to health is not just the right to be healthy or the right to health, it contains a more complex and deeper understanding. the committee points out that “the right to health is understood as the right to use a number of institutions, goods, services and conditions necessary for the attainment of the highest attainable standard of health” (general comment no. 14, 2000). according to art. 24 of the convention on the rights of the child of 1989, states parties recognize the right of child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. states parties seek to ensure that no child is deprived of his or her right to access such health care services (convention on the rights of the child, 1989). in addition, similar rules are also contained in art. 5 of the international convention on the elimination of all forms of racial discrimination of 1965 (international convention on the elimination of all forms of racial discrimination, 1965); art. 11.1 and art. 12 of the convention on the elimination of all forms of discrimination against women of 1979 (1979) (convention on the elimination of all forms of discrimination against women, 1979); art. 25 of the oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 245 convention on the rights of persons with disabilities of 2006 (convention on the rights of persons with disabilities, 2006). other regional international legal instruments also reflect the right to health care. for example, in accordance with art. 16 of the african charter on human and peoples’ rights, adopted in 1981, everyone has the right to the highest attainable standard of physical and mental health. states parties shall take the necessary measures to protect the health of their peoples and to provide them with medical care in the event of illness (african charter on human and peoples’ rights, 1981). according to art. 11 of the american declaration on the rights and duties of man of 1948, everyone has the right to maintain their health through sanitary and social measures relating to food, clothing, housing and medical care, as permitted by state and public resources (american declaration on the rights and duties of man, 1948). in summary, it can be stated that international law has multifacetedly enshrined the right to health care, regulating it in various legal acts. this can be explained by the importance of the right to life for everyone (tomashevski & yaroshenko, 2020). the right to health is closely linked and dependent on the enjoyment of other human rights, including the right to food, housing, work, education, human dignity, life, non-discrimination, equality, torture, privacy, access to information and freedom of associations, meetings and movements. these and other rights and freedoms are related to the components of the right to health care. 4. the right to health in legal acts of the council of europe at the regional level, the right to health is also reflected in the council of europe. the echr deserves special attention, although it does not directly enshrine the right to health care, however, it regulates in its articles a number of rights that are somehow related to the right to life, in particular: art. 2 “right to life”, art. 3 “prohibition of torture”, art. 4 “prohibition of slavery and forced labor”, art. 5 “right to liberty and security”, art. 6 “right to a fair trial”, art. 8 “the right to respect for private and family life”, art. 9 “freedom of thought, conscience and religion”, art. 10 “freedom of expression”, art. 11 “freedom of assembly and association”, art. 12 “right to marry”, art. 13 “the right to an effective remedy” (the european convention on human rights, 1950). according to art. 11 of the european social charter the right to health care is enshrined. member states have undertaken to take appropriate measures, inter alia, to prevent epidemic diseases, to eliminate the causes of ill health and to provide counseling and education services that promote health and personal responsibility in health matters (european social charter (revised), 1996). in this context, it is also worth noting the provisions of art. 13 of the european social charter, which regulates the exercise of the right to social and medical assistance and the responsibilities imposed on states, for example to ensure that any person… shall be provided with appropriate assistance and, in the event of illness, the care required by his or her state of health (european social charter (revised), 1996). the implementation of the charter obliges states to resort not only to legal but also to practical actions to ensure the availability of resources and operational procedures necessary for the full implementation of the rights specified in the charter (kazak, 2020). right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 246 there are also a number of other documents that enshrine the right to health care. here are some of them: convention for the protection of human rights and dignity in the application of biology and medicine: convention on human rights and biomedicine of 1997. the essence of the convention is that human interests are above the interests of science or society. the convention sets out a number of principles and prohibitions regarding genetic and medical research, consent, the right to privacy and information, transplantation, and so on. the convention affirms the principle that a person must give the necessary consent to a medical intervention in an understandable form and in advance, except in an emergency (hyliaka et al., 2020). such consent may be freely waived at any time. medical intervention against persons who are unable to give their consent, such as children and persons with mental disorders, can be carried out only in cases where it can give a real and direct positive effect (convention for the protection of human…, 1997). council of europe recommendation nr (88) 7 “on school health education and the role and training of teachers” of 1988. this recommendation paid great attention to the education of the new generation in the direction of awareness of the importance of health, knowledge of their rights in the field of health care and the inclusion of relevant issues in the school education program (school health education and the role…, 1988). another recommendation of the committee of ministers of the council of europe cm/rec (2010) 6 on good governance in health systems of 2010, states that the legal framework for health care should be based on three fundamental values of the council of europe: human rights and human dignity; the rule of law; democracy. the right to health care should be based on the principles of universality, equality and solidarity (recommendation cm/rec (2010)6…, 2010). 5. the practice of the ecthr in health care and its significance the echr does not explicitly enshrine the right to protection of life among the list of fundamental human rights, as noted earlier. however, the ecthr still hears cases in this direction if the violation took place under another article of the echr, but the violation concerns, inter alia, the right to health care. for a more detailed understanding, consider the case law. first of all, we note the illustrative case of k.h. and others v. slovakia of 2009. according to its circumstances, the applicants, eight gypsy women, had received medical treatment in the obstetrics and gynecology departments of two hospitals in eastern slovakia during pregnancy and childbirth. despite repeated attempts, none of the applicants became pregnant after their last hospital stay, where they underwent a caesarean section. the applicants suspected that the cause of their infertility could be sterilization without their knowledge and consent during a cesarean section (tatsiy et al., 2017). in 2004 the applicants issued powers of attorney to the ngo's lawyers, who then tried to check the applicants` medical records and make photocopies of them. faced with difficulties in gaining access to the documents, the applicants began proceedings in the local courts. as a result, most of the applicants were allowed to inspect their cards. oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 247 however, their requests for photocopies were ultimately rejected on the basis of the national legislation in force at the time, which provided that the medical records were the property of the hospital and that restrictions on access were justified in order to prevent misuse of the information contained therein. following the adoption of new legislation in 2005, all applicants, except the second, whose medical record had meanwhile been lost, were eventually granted full access to the necessary medical records and permission to take photocopies (yaroshenko et al., 2018). the applicants applied to the ecthr in the context of a violation of art. 6 “right to a fair trial” and art. 8 “the right to respect for private and family life”. the court ruled in both cases, noting that access to information concerning a person`s state of health and reproductive status is important for a person`s private and family life under art. 8. the court finds that the refusal to grant access to such information must be substantiated by good cause. in the present case, the court did not accept the state`s argument that the prevention of photocopying of records was necessary to protect information from misuse. the court therefore found that the state had violated the applicants` right to respect for their private and family life under art. 8 of the convention. the court also found a violation of the applicants` right of access to a court under art. 6 (k.h. and others v. slovakia, 2009). case of akopyan v. ukraine of 2014 concerned the applicant, who had been hospitalized at the kharkiv regional psychiatric hospital in 1994. according to her medical history, she had shown signs of a mental disorder. between 1995 and 1997, she repeatedly applied for discharge from the hospital and complained of being held in a psychiatric hospital, but to no avail. in 1997, she escaped from the hospital and, after researching her medical history, found that she had not received any treatment. at the applicant's request, she underwent a medical examination, which confirmed that she was perfectly healthy. the applicant lodged a complaint with the ecthr alleging a violation of her right to liberty and security of person under art. 5 echr. the court upheld the violation of the relevant article and ruled that a person subject to compulsory medical treatment should have the right to apply to the competent authorities for consideration of the termination of such involuntary treatment (akopyan v. ukraine, 2014). in the case of helhal v. france of 2015, the applicant has been in prison with health problems. in 2010, he petitioned a judge to postpone his sentence on medical grounds. he also complained that the premises of the prison where he was serving his sentence were not adapted for his disability, so that the applicant could only move in a wheelchair. moreover, the applicant could not take a shower on his own, but did so with the help of another prisoner assigned to him for that purpose, and that the physiotherapy he had received was insufficient. in 2011 the judge to whom the applicant had lodged rejected his application and, on the basis of two identical medical opinions, found that the applicant`s state of health met the conditions of his imprisonment. however, the court found that the prison had not been adapted to the applicant`s needs and that there were other institutions which were better equipped to maintain him. all other complaints lodged by the applicant against this decision were rejected. right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 248 the applicant applied to the ecthr on the ground of violation of art. 3 of the echr “prohibition of torture”. the court emphasized that the member states of the council of europe have a duty to care for people with disabilities because of their vulnerability, in particular in situations of coping with detention. the ecthr also highlighted the inadequate quality of care provided to people with disabilities. moreover, as regards the conditions of detention and access to the toilets, and especially to the showers, the applicant could not have entered these premises without assistance, as they were not in the cell and were not wheelchair accessible (kazak, 2020). on that basis, the ecthr found that although the applicant's prolonged detention was not in itself incompatible with art. 3 of the convention, the domestic authorities did not provide him with the necessary medical care to protect him from conduct contrary to this provision. thus, the court found a violation of art. 3 of the convention (helhal v. france, 2015). despite the fact that the present case concerns the prohibition of torture, it is directly related to the right of a person to health care, and therefore indicates that the ecthr pays great attention to the relevant right in its decisions, even if such rights are violated in in the context of other articles of the echr. next, we should pay attention to the case of mihu v. romania of 2016. the case concerned the failure to provide adequate medical care to the applicant`s son, which resulted in his death, as well as a violation of the right to a fair investigation. in 2005 the applicant`s son was taken to the emergency department with a diagnosis of cirrhosis of the liver and gastrointestinal bleeding. he received the necessary medication, but due to the high capacity of the intensive care unit, where he was to undergo treatment, he was unable to get a place there. despite the treatment, the patient`s condition gradually deteriorated and the next day the doctors pronounced him dead. the cause of death was declared cardiorespiratory failure. the applicant lodged a complaint with the local police about the case of manslaughter, as he had testified that he had asked the doctors to transfer the patient to a more equipped ward, but had been refused. however, the applicant encountered delays in the investigation and procrastination. the applicant complained of a violation of art. 2 of the echr “right to life”. the ecthr noted that the echr imposes an obligation on states to monitor compliance with art. 2 of the convention and by all available means to ensure that the proper administrative and legislative provision for the observance of patients` rights is observed, and in the event that such a violation occurs, that proper investigation and punishment are carried out. the court noted that the events that led to the applicant`s death should be considered in terms of the adequacy and effectiveness of the investigation. thus, the ecthr found a violation of art. 2 of the echr. that is, despite the fact that the applicant complained of a violation of art. 2 of the echr, which regulates the right to life, the relevant case can be attributed to the category of those that regulate and protect the human right to health, because life and health are inextricably linked categories. moreover, in the relevant case, the violation of the right to life occurred as a consequence of a previous violation of the right to health care (mihu v. romania, 2016). thus, the realization of the right to life is not possible without the realization of the right to health care. after all, the normal biological and social functioning of man is impossible without health (hendel, 2016). oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 249 the next case that deserves attention is the case of lunev v. ukraine of 2013. in the circumstances of the case, the applicant was held in pre-trial detention on suspicion of drug trafficking. during his stay in the pre-trial detention center, he was diagnosed with a number of diseases, including the hiv, chronic bronchitis, encephalopathy, neuropathy and residual changes after tuberculosis. during the investigation the applicant was treated several times in the medical unit of the sizo and the hospital. the applicant lodged a complaint with the ecthr alleging a violation of art. 3 of the echr “prohibition of torture” arguing that the conditions of his detention were incompatible with his state of health and that he had been ill-treated during his detention in sizo. the court considered the case and concluded that the prolonged stay of a person infected with the hiv and other diseases without proper medical care is inhumane and degrading. the ecthr also found during the proceedings that, despite being diagnosed with the disease, the applicant had not received adequate treatment for more than a year until his condition became critical. that is, the court found a violation of art. 3 of the echr (lunev v. ukraine, 2013). it should be noted that this case is interesting in that the ecthr equated the lack of proper medical care to torture, recognizing that such treatment is degrading. 6. received experience and development prospects domestic researcher y.y. shoemaker combined important aspects of a person's right to health care on the basis of constitutional principles. it analyzes the substantive and essential relationship of the right to health care with other constitutional human rights, as well as explains the content of the relevant law in accordance with national legal acts. he emphasizes that the human right to health includes both freedoms and rights. constitutional freedoms include, for example, the freedom to control one`s health and body, including sexual and reproductive freedom (shvets, 2017). ukrainian researcher о.м. lisnycha analyzed the practice of the ecthr in the context of the right to health care through the prism of other human rights, in particular: the right to life (article 2 of the echr), the prohibition of torture (article 3 of the echr), the right to liberty and security (article 5 of the echr), the right to a fair trial (article 6 of the echr); the right to respect for private and family life (article 8 of the echr). thus, the right to health care can be violated in completely different contexts and may interact with other rights (lisnycha, 2018). ukrainian researcher n.v. hendel paid considerable attention to the study of the practice of the ecthr in the context of the right to health care. in her work “protection of the right to health in the european court of human rights. the case law of the ecthr” she revealed various aspects of the relationship between the law under study and other human rights enshrined in the echr. based on the analysis of the provisions of the echr articles and the case law of the ecthr, she substantiated the conclusion that the right to health is comprehensive and includes: the right to information and confidentiality of health information; the right to medical and social assistance; the right to consent to treatment and medical intervention; the right to a favorable ecological environment that affects health, etc. thus, the relationship of the right to health to socio-economic rights is subjective (hendel, 2016). right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 250 in the conclusions substantiated by the domestic scientist t.m. kurilo stressed the need to refer to european norms and recommendations in the creation of national legal acts in the field of health, and noted the importance of the approach of the council of europe and the ecthr in protecting the human right to health (kurilo, 2012). foreign researchers k. footer and l. rubenstein (2013) conducted a detailed analysis of the place of the right to health care in the human rights system. they analyzed the role of relevant law in the context of humanitarian law and noted that attacks on health workers and patients in situations of armed conflict, civil unrest and state repression pose enormous problems for the provision of medical care when it is most needed. such violations, in their opinion, are a direct violation not only of humanitarian law, but also of the human right to health care as one of the fundamental and inalienable rights. they emphasize the need for detailed regulation of theoretical understanding and legal regulation of relevant law. some aspects of the right to health care have been studied by the following ukrainian and foreign scholars: і. bern, 2012; а. gunarajasingam, 2013; т. ezer, 2012; j. cohen, 2012; v.v. leshchenko, 2014; м. maruthappu, 2016; j. overal, 2012; r. ologunde, 2013; ya. radishch, 2014; l. rubenstein, 2013; a. semenova, 2014; і. senyuta, 2012; z.s. skaletska, 2009; k. footer and others. despite the available number of scientific papers on the relevant issue, it still remains insufficiently researched and debatable in legal science. in particular, insufficient attention is paid to the compliance of domestic legal norms with international legal requirements and standards. in addition, the author emphasizes the case law of the european court of human rights, which shows the urgent problems of protection of the right to health and the role of relevant law for the normal provision of all other spheres of human life. 7. conclusion and recommendations understanding health as a human right imposes a legal obligation on states to ensure access to timely, appropriate and affordable health care of appropriate quality, as well as relevant determinants of health, such as safe drinking water, sanitation, food, housing, health-related information and health education and gender equality. a human rights-based approach to health requires that health policies and programs prioritize the needs of those at the end of the road to greater justice. the right to health care should be exercised in the absence of discrimination on the grounds of race, age, ethnicity or any other status. in accordance with the principles of non-discrimination and equality, states should take measures to correct any discriminatory laws, practices and policies. another feature of the approaches based on respect for human rights is constructive participation. this means that national stakeholders, including non-governmental bodies such as non-governmental organizations, are constructively involved in shaping programs at all stages evaluation, analysis, planning, implementation, monitoring and analytical reporting. health care and human rights are powerful modern approaches to defining and ensuring human well-being. attention to the interaction between health care and human rights can provide practical benefits for those working in the field of health care or human rights, can help refocus thinking on oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 251 key global health care issues, and can enhance human thinking and practice relating to human rights. in the context of the art. 2 of the echr (right to life), the following cases can be distinguished: mihu v. romania (2016) on the provision of inadequate medical care; kats and others v. ukraine (2009) on failure to provide adequate medical care, leading to death; mehmet şentürk and bekir şentürk v. turkey (2013) on the refusal of an urgent operation for a pregnant woman due to lack of funds for such an operation; nina kutsenko v. ukraine (2017) on failure to provide adequate medical care and further improper investigation of this violation; byrzykowski v. poland (2007) on improper investigation of the causes of death and serious harm to the child's health after a cesarean section; hiller v. austria (2017) on non-compliance with the obligation to protect the right to life; сentre for legal resources on behalf of valentin campeanu v. romania (2017) inability to provide medical care to an hiv-infected mentally ill person; lopes de sousa fernandes v. portugal (2017) on negligence that led to death; šilih v. slovenia (2009) on deaths due to medical negligence; marchuk v. ukraine (2016) on ineffectiveness of the investigation of the fact of death due to medical negligence; panaitescu v. romania (2017) on the denial of free medical care; colak and tsakiridis v. germany (2009) on the denial of compensation for deteriorated health; lambert and others v. france (2015) on the cessation of artificial feeding; charles gard and others v. the united kingdom (2017) on the cessation of lifesustaining therapy; calvelli and сiglio v. italy (2002) on negligent homicide and others. in accordance with the art. 3 of the echr (prohibition of torture) the ecthr considered the following cases a.n. v. ukraine (2015) on improper provision of medical care during detention; popov v. russia (2006) on lack of medical care; elberte v. latvia (2015) on the removal of tissues of the deceased without the consent of the wife; m.s. v. croatia (2015) on the applicant's placement in a psychiatric hospital; koval v. ukraine (2007) on failure to provide an adequate treatment; yakovenko v. ukraine (2008) on illtreatment and improper behaviour, etc. in the context of art. 5 of the echr (right to liberty and security) the following cases were considered: barilo v. ukraine (2013) on illegal detention of person with medical contraindications; м. v. ukraine (2012) on illegal placement in a psychiatric institution; rakevich v. russia (2004) on illegal emergency placement in a psychiatric institution, etc. according to art. 6 of the echr (right to a fair trial) the following cases can be mentioned: benderskiy v. ukraine (2008) on inadequate medical care; jalloh v. germany (2006) on the forced use of emetics, etc. regarding the art. 8 (right to respect for private and family life) zaichenko v. ukraine (2015) on placement in a psychiatric hospital; panteleyenko v. ukraine (2007) on the disclosure of confidential information about a person's mental state; szuluk v. the united kingdom (2009) on the control of a prisoner's correspondence with a doctor; i v. finland (2008) on the inability to provide adequate medical care to an hiv-positive person; m.s. v. sweden (1997) on the transfer of personal data of the patient; avilkina and others v. russia (2013) on the transfer of medical documents of the employee; sidorova v. right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 252 russia (2019) on the unauthorized collection of medical information about the applicant; k. h. and others v. slovakia (2009) on preventing a patient from making a copy of his medical file; nedescu v. romania (2018) on the seizure of frozen embryos; parillo v. italy (2015) on the ban on embryo donation; costa and pavan v. italy (2013) on the ban on embryo screening; znamenskaya v. russia (2005) on the prohibition of registration of undisputed paternity; dubetska and others v. ukraine (2011) on excessive pollution of housing by two companies, etc. in the context of the art. 10 of the echr (right to freedom of expression) the following cases can be emphasized: editions plons v. france (2004) on the distribution of books with information about the deceased; bergens tidende and others v. norway (2009) on defamation of a cosmetologist, etc. according to the art. 11 of the echr (freedom of assembly and association) the following cases were considered: le compte, van leuven and de meyer v. belgium (1981) on the prohibition of a doctor to practice medicine; jehovah’s witnesses of moscow and others v. russia (2010) on the tendency to refuse medical care, etc. it should be noted that all the conclusions and decisions rendered in these cases can serve as a good case law for their further application in other ecthr cases, in the adjudication of national courts of the member states, as well as for the improvement of existing legislation in the council of europe member states and, in particular, in ukrainian legislation in the context of health care. in today`s environment of development and improvement of the health care system, doctors and patients must work together to make joint decisions on diagnosis and treatment. financial issues are inextricably linked to the quality of health care, which in turn can lead to inequality and discrimination. there is a need to better understand the social determinants of health care that run between traditional medicine and the broader concept of the health system, including the interdependence of the right to health and the realization of all human rights. the human rights approach to health care uses the human rights system to analyze these elements, including health care. the right to health has a close relationship with other human rights. therefore, its observance guarantees observance of other rights and vice versa. the case law of the european court of human rights shows that the violation of the right to health care has negative consequences in completely different spheres of human life. therefore, in order to effectively ensure the right to health care, states must be guided by the practice of the ecthr and implement it in their legislation. similarly, they must adhere to international standards in this area and ratify those international legal acts that have not yet become part of national legislation. we consider it expedient to update the domestic legislation in the field of health care, in particular by amending the law of ukraine "fundamentals of ukrainian legislation on health care" of 1993, including by taking into account the case law of the ecthr in considered cases to eliminate future violations of the rights of ukrainian citizens. oleg m. yaroshenko; volodymyr m. steshenko; oleh v. tarasov; ilkin s.o. nurullaiev; mariia i. shvartseva the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 253 references african charter on human and peoples’ rights (1981). retrieved from: https://www. achpr.org/legalinstruments/detail?id=49#:~:text=the%20african%20charter%20 on%20human,freedoms%20in%20the%20african%20continent. akopyan v. ukraine (2014). retrieved from 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(2017). legal aspects of cancer deseases prophylactics: patients rights context. wiadomosci lekarskie (warsaw, poland: 1960), 70(6), 1108-1113. the european convention on human rights (1950). retrieved from: https://www.echr. coe.int/documents/convention_eng.pdf. http://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=001-122154&filename=001-122154.pdf&tid=ihgdqbxnfi http://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=001-122154&filename=001-122154.pdf&tid=ihgdqbxnfi http://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=001-122154&filename=001-122154.pdf&tid=ihgdqbxnfi https://doi.org/10.1016/s2049-0801(13)70021-9 https://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=003-5313770-6617162&filename=judgments%20of%2001.03.16%20.pdf https://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=003-5313770-6617162&filename=judgments%20of%2001.03.16%20.pdf https://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=003-5313770-6617162&filename=judgments%20of%2001.03.16%20.pdf https://www.un.org/ru/coronavirus/protecting-human-rights-amid-covid-19-crisis https://www.un.org/ru/coronavirus/protecting-human-rights-amid-covid-19-crisis https://www.researchgate.net/publication/46576259_recommendation_cmrec20106_of_the_committee_of_ministers_to_member_states_on_good_governance_in_health_systems https://www.researchgate.net/publication/46576259_recommendation_cmrec20106_of_the_committee_of_ministers_to_member_states_on_good_governance_in_health_systems https://www.researchgate.net/publication/46576259_recommendation_cmrec20106_of_the_committee_of_ministers_to_member_states_on_good_governance_in_health_systems https://helsinki.org.ua/prava-lyudyny-v-haluzi-ohorony-zdorov-ya-a-rohanskyj/ https://helsinki.org.ua/prava-lyudyny-v-haluzi-ohorony-zdorov-ya-a-rohanskyj/ https://eric.ed.gov/?id=ed364530 https://rm.coe.int/ecsr-statement-of-interpretation-right-to-health-in-times-of-pandemic/16809e3adb https://rm.coe.int/ecsr-statement-of-interpretation-right-to-health-in-times-of-pandemic/16809e3adb https://www.echr.coe.int/documents/convention_eng.pdf https://www.echr.coe.int/documents/convention_eng.pdf right to health care: the practice of the ecthr and the case of ukraine the age of human rights journal, 18 (june 2022) pp. 239-256 issn: 2340-9592 doi: 10.17561/tahrj.v18.6496 256 tomashevski, k.l., & yaroshenko, o.n. (2020). problems of labour legislation codification in belarus and ukraine: history, current situation and prospects. transition studies review, 27(2), 41-50. retrieved from: https://transitionacademiapress.org/jtsr/ article/view/295 yaroshenko, o.m., moskalenko, o.v., sliusar, a.m., & vapnyarchuk, n.m. (2018). commercial secret as an object of labour relations: foreign and international experience. journal of legal, ethical and regulatory issues, 21(1), 1-10. retrieved from: https://www.abacademies.org/articles/commercial-secret-as-an-object-oflabour-relations-foreign-and-international-experience-1544-0044-21-s1-253.pdf yaroshenko, o.m., vapnyarchuk, n.m., burnyagina, yu.m., kozachok-trush, n.v., & mohilevskyi, l.v. (2020). professional development of employees as the way to innovative country integration. journal of advanced research in law and economics, 11(2), 683-695. https://doi.org/10.14505/arle.v11.2(48).39 received: july 16th 2021 accepted: november 5th 2021 https://transitionacademiapress.org/jtsr/article/view/295 https://transitionacademiapress.org/jtsr/article/view/295 https://www.abacademies.org/articles/commercial-secret-as-an-object-of-labour-relations-foreign-and-international-experience-1544-0044-21-s1-253.pdf https://www.abacademies.org/articles/commercial-secret-as-an-object-of-labour-relations-foreign-and-international-experience-1544-0044-21-s1-253.pdf https://doi.org/10.14505/arle.v11.2(48).39 right to health care: the practice of the ecthr and the case of ukraine 1. introduction 2. the concept of human rights in health care 3. protection of human rights in health care in the system of international law 4. the right to health in legal acts of the council of europe 5. the practice of the ecthr in health care and its significance 6. received experience and development prospects 7. conclusion and recommendations references human rights in times of the pandemic: a dialogue on migration and indigenous rights in brazil before the regional inter-american system the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 261 human rights in times of the pandemic: a dialogue on migration and indigenous rights in brazil before the regional inter-american system letícia virginia leidens1; patricia noschang grazziotin2 abstract: this paper using the deductive method of approach based on regional scope for the protection of human rights, aims to demonstrate that the brazilian state actions took during the pandemic, in terms of strategies, policies and measures to deal with the covid-19 pandemic had severe consequences specially for indigenous and migrants population in brazil, increasing the level of vulnerability of that population in its territory. it will also consider that in spite of adhering the unconditional observance of inter-american and international standards on human rights, the brazilian government ignored such agreements and therefore causing social economic losses and about hundreds of deaths. keywords: covid-19 pandemic; iahr commission with resolution no. 01/2020; indigenous population; human rights; migrants population; vulnerable peoples. summary: 1. introduction. 2 human rights in pandemic times: the movement of international organizations. 3 evidence of omissions by the brazilian government in violating the rights of indigenous peoples and migrants. 4 closing remarks. 1 introduction this paper seeks to encourage reflection on human rights in times of the coronavirus pandemic – covid-19, based on the theoretical exploration of the recurring commonplace of the human rights “crisis”. as a parameter, we will highlight the movement of the inter-american human rights system (iahrs) with the publication of resolution no. 01/2020 by the inter–american commission on human rights, highlighting the concern with the pandemic scenario and human rights in the americas, with special emphasis on the brazilian case, considering the migrants and indigenous people. this is mainly a documentary research, using the deductive method in the analysis of resolution no. 01/2020 of the inter-american commission on human rights, published amidst the pandemic scenario, in addition to doctrinal texts of a legal nature. the theoreticaldogmatic methodology is therefore adopted, based on contemporary human rights debates. 1 adjunct professor of private international law and human rights at federal fluminense university, brazil (lleidens@gmail.com). 2 adjunct professor of international law at the law faculty of the university of passo fundo – upf, brazil (patriciagn@upf.br). mailto:lleidens@gmail.com mailto:patriciagn%40upf.br?subject= human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 262 2 human rights in pandemic times: the movement of international organizations the coronavirus pandemic – covid-19 scenario frames the violation of human rights in brazil and latin america as more complex and severe, denouncing the cruel sides of capitalism and our regional distance to the culture of human rights. the debate takes urgency and necessity, as presuppositions of state actions, and puts us again as a social body, in a position of vigilance to the person’s legality and dignity, above all, watchful to the emergence of a state of legal exception (paes, et al., 2020, p. 561). the concern is how the state will act exceptionally, in particular with the treatment of human rights, when it already showed a tendency towards the movement of weakening and denial of rights, passing, to a certain extent, by the fragility of institutions and the legal and social structures conquered for everyone. the analysis goes through the clarity that social inequalities of all orders are supported by the capitalist system, characterized as neoliberalism, in the context of globalization, which is reproduced by consumption, based on the accumulation of capital by a specific group. in this context, there is a recognition of the great distance or even opposition between capitalism and human rights, given that the failure to achieve rights for all appears as a feeding mechanism for that structure. the capitalist logic needs social inequality to maintain itself, being its systemic, structural, and founding base (leford, 2011, p. 187). therefore, in the theoretical and thinking fields, the perspective must consider the depth and complexity of the theme, especially for reducing social asymmetries. this implies that it is no longer just an economic model, but a cultural proposal positioned itself as natural and normalizes social subjects' behaviors and actions, therefore, of a much broader, more complex, and profound structure for a process of alteration. with the coronavirus pandemic – covid-19, such questions become more evident, mainly when we reflect: who are the people behind covid-19 inequality? who is profiting? who are the primary victims of this context? in this respect, one must consider the socio-economic disadvantage and of fields of possibilities for the countries of the global south, notably a brazil demarcated by deep inequalities and incapacitated in safeguarding the protection of citizens’ life, health, physical integrity, and security. (leidens, 2021, p. 140). issues related to gender, class, and race are aggravated by a scenario of corruption and impunity that permeates the reality of the americas and imposes a state political movement and urgent sanitary measures (gonçalves, 2020, p. 318). on the other hand, in the strategic field of human rights, we use the voice and concern shown by the regional structure for the defense and promotion of human rights, the inter-american human rights system (iahrs), specifically the inter-american court and the inter-american commission. the inter-american system reverberates and highlights the worsening of structural problems involving human rights with the pandemic in the americas. we consider both agencies as instruments that work for the transformation, promotion, and defense of human rights’ culture in the international and regional contexts, chiefly when called upon to investigate, analyze and judge human rights violations. in the pandemic context, the iahrs assumes the role of demarcation and surveillance and sheds light on problems already known, emphasizing the international commitments and letícia virginia leidens; patricia noschang grazziotin the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 263 obligations assumed by the states. the inter-american system's use ratifies its attribution as an instrument of assertion and stimulus for alternating an exclusionary and unequal reality with strengthening and recognizing the normative, recommendatory, and mandatory acts assumed by the state in international cooperation. the inter-american commission issued resolution no. 1/2020, which highlights its distress over the pandemic situation and human rights in the americas. also, the inter-american court issued a declaration (covid and human rights) describing the main problems and challenges for the states, pointing up to the states' international obligations from the perspective of human rights. the iahr commission resolution appears more developed than the iahr court declaration, covering a total of eighty-five recommendations, with regard to minimum standards of attitudes, state priorities, and the exaction of rights. both documents signaled the concern with the defense of human rights and democracy in the pandemic scenario from a more open and not only sanitary approach, which is imposed by measures of access to health and infection prevention, protecting the right to health, life, and physical integrity. on this subject, the main points highlighted by the iahr commission with resolution no. 01/2020 are delineated: first, we highlight there is a notable concern with the use of state powers, in an exceptional circumstance, in the context of the coronavirus pandemic – covid-19, that leads it to take measures, such as legislating, promoting public policies, restricting, redefining rights and priorities in the name of the exception or of the state of emergency. this restores the public movement, and when it does not agree with the human rights position, we can steer to a more elongated and deficient situation. the demarcation directs that public actions occur immediately and urgently, per the international health regulations (ihr) and with recommendations from who and paho to protect the fundamental rights and guarantees of citizens. this happens from the sharing, by the local and global spheres, of information and protocols seriously analyzed to outline alternatives on how to respond in an exceptional context. consequently, the limits of state actions have been necessarily limited to institutional adaptations and modifications based on the sieve of proportionality, unique temporality, and exclusively to meet and fulfill the objectives that promote public health measures. therefore, any public movements to restrict, redefine, or prioritizing rights and guarantees are only justified by the strict fulfillment of public health objectives3. in a second aspect, the resolution mentioned above emphasizes the concern in alerting states to give priority to the group of vulnerable people, especially women, blacks, indigenous peoples, children, migrants, and the lgbtiq+ community, economically disadvantaged and who appear, historically, with stigmas and as focuses of oppression, violence, and discrimination, being the most affected by the covid-19 pandemic, given the vulnerability that characterizes them (benatti; raiol; lima, 2021, p.11). it is a scenario that aggravates the situation of the vulnerable, daily crossed by social, economic, and cultural inequalities, a structure that must necessarily be guided by the intersectionality bias between race, gender, and class. in this sense, the social gap reflects intensely, imposing 3 in accordance with the following general principles and obligations (3). human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 264 urgent, coordinated and prioritized state action by public policies aimed at the vulnerable: (...) “the formulation of public policies cannot distinguish different interests from those indicated by law, given the principles of public interest, purpose and impersonality” (crenshaw, 1991, p. 1241) for the discriminated and marginalized social sectors. the guidance of resolution no. 01/2020 directs the priorities of the public movement, in an exceptional context, to address vulnerabilities in an inclusive, nondiscriminatory work of protection and tutelage, considering that only with this focus is it possible to contain the social impact that is announced. moreover, the iahr commission points to the path of multilateralism as a framework for strengthening human rights and respect for the rule of law and international cooperation, as structures that historically downplay the arbitrary use of state power. by this prospect, exceptional measures of human rights restrictions must necessarily materialize by law, in a reasonable manner, being strictly necessary, time-limited, and under scientific standards of exceptionality, in the name of public health. in addition to the international human rights conventions, such directives guide and limit state action, removing any attempts to consider the state of emergency a presupposition for a “blank check” in the suspension/underplaying of fundamental rights and guarantees (ruiz; neto, 2020, p. 162). on the other hand, to verify how the brazilian response to international stimuli occurs, above all, based upon the responsibility with international obligations assumed in a cooperative plan, is an urgent and decisive measure in this context. immediately we are faced with the recurrent issue of internalization and prompt implementation of international (normative, recommendatory, and decision-making) acts in the brazilian system, chiefly the integration of the international system with the internal system, which still is seen as an embarrassment between us (piovesan, 2017, p. 135). this reflection, once linked to the decisions of the iahr court issued to brazil, makes clear the recurrence of not fully complying with the obligations imposed by the iahr court’s jurisdiction4 (coelho, 2008, p. 155) as well as with other guidelines of international organizations from the un international agencies, under the grounds of the exercise of governmental sovereignty. it must be recognized that sovereignty has long acquired a non-absolute condition in international relations (morgenthau, 1957, p. 123-5). it is noted that the current brazilian behavior, in contrast with other countries and multilateralism, involves a width of analyses from the interdisciplinary field of historical, sociological, political, and international relations factors, essential to draw in-depth reflections on the positions adopted. in this sense, only with the use of an interdisciplinary approach and the analytical look's improvement it is possible to delimit justifications for the institutional and governmental components of the pandemic action. 4 in brazil, the implementation of decisions from the inter-american court of human rights is mandatory, in the same way as the national judiciary branch of power's decisions. this obligation emerges not only from the ratification of the american convention but also from the country's recognition of the contentious jurisdiction of the court in the country. letícia virginia leidens; patricia noschang grazziotin the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 265 there are two aspects to this issue. we note that the denial or partial compliance with the decisions and guidelines of the iashr and global for human rights compromises its strengthening as a system and as an instrument, since there is a space for questions about the role of multilateralism and international jurisdiction5. conversely, it is up to the state to promote a positive and contributing movement out of its internal and institutional framework for the defense of the democratic state of law and the commitment to human rights in meeting regional and global positions, also including civil society’s active space in demanding a coherent positioning of state institutions with the normativeness, for an inclusive, non-discriminatory and non-violent culture of human rights (ruiz; neto, 2020, p. 160). therefore, considering that such arguments were already rampaging as legal and political difficulties in the brazilian scenario before the coronavirus pandemic – covid-19, it is necessary to reverberate this discussion so that the institutional responses follow the urgency required at the moment. 3 evidence of omissions by the brazilian government in violating the rights of indigenous peoples and migrants the pandemic further highlighted the vulnerabilities of certain groups in brazil and deepened human rights violations, especially regarding indigenous peoples and migrants. given this perspective, we seek to demonstrate how these violations have been enabled by normative acts that run counter to treaties protecting human rights and the national policy for the protection of human rights that has been developed since the enactment of brazil’s 1988 constitution, when the re-democratization of the brazilian state was fulfilled. it is also important to signal that the current brazilian government has been ignoring the recommendations of the organization of american states on preventing and fighting the covid-19 pandemic. before the beginning of the pandemic, the government of president jair m. bolsonaro had already been forwarding acts against the protection of human rights. to exemplify, one of such measures was decree no. 10.087/2019, which extinguished the monitoring committee of the national program of human rights-3. opposing this, the national human rights council issued recommendation no. 27 in december 20196, prescribing that the national human rights program – pndh-3 be respected and enforced immediately. among 5 we reiterate that the inexistence of an organ/committee/commission within the system for such enforcement leaves this attribution to the state’s responsibility. this calls for a state contribution to consolidate international jurisdiction since the system chooses not to engage in practices that interfere with states' autonomy and sovereignty. this means the absence of this body does not compromise arbitrariness in the fulfillment of decisions. 6 the national human rights program is part of a process of building commitment, by the brazilian state, to human rights which starts in 1996 with the promulgation of the first national human rights program and is reinforced by the second national human rights program in 2002, being a state policy rather than a government’s one. in its third document, pndh-3, it summarizes the 11th national conference of human rights, preceded by regional state and municipality conferences: an example of good practices for implementing what was provided for the 1988 federal constitution and the vienna convention of 1993: universality, indivisibility and the interdependence of human rights. recomendation nº 27, on dec. 11th of 2019. (conselho nacional de direitos humanos, 2019) human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 266 the council’s requests is the re-creation of the committee with the repeal of decree no. 10.087/2019 in regards to its extinction – which evidenced multiple government’s efforts contrary to international documents and commitments that brazil upholds.7 the brazilian government has adhered to unconditional inter-american observation and international standards on human rights. therefore, taking into account the universal aspect of human rights: interdependent, indivisible, and interrelated, particularly for economic, social, cultural, and environmental rights, and applied primarily to indigenous and migrant populations in brazil. the pandemic increased the level of vulnerability of those groups in the country. since the beginning of the covid-19 pandemic, the brazilian president has shown negligence and carelessness with the disease and the infected brazilians who passed away. in one of the first public demonstrations by bolsonaro, he considered covid-19 a simple light flu. the disregard for the disease and his primary concern with the economy to the detriment of human lives have become visible with the replacements of the minister of health, which is responsible for the oversight of public health at the national level. the head of the ministry was changed three times, as the first two ministers to occupy the position supported stricter social distancing measures (horizontal) – which would logically damage the economy. consequently, they did not remain in office. from may 15, 2020, to september 16, 2020, the country was left without an official minister in the office, as army general eduardo pazuello assumed the ministry for this period on an interim basis, being officially nominated in mid-september. it is already half of 2021, and brazil has its fourth health minister amid the pandemic and reached the mark of 400 thousand deaths from covid-19 last april (ministério da saúde, 2021). the lack of management fighting the pandemic becomes even more evident for the vulnerable and low-income population. deaths due to covid-19 have been higher in environments where poverty, hunger, and malnutrition of the brazilian population worsened. 7 pointing to the many actions and demonstrations of the federal government in 2019 that contradict programmatic actions, objectives and guidelines of the pndh-3, such as: programmatic action a (draft law to establish the national prevention mechanism, an inspection system for detention sites for the regular and periodic monitoring of deprivation of liberty centres, in accordance with the optional protocol to the un convention against torture and other cruel, inhuman or degrading treatment or punishment), axis 4 (public security, access to justice and combating violence), directive 14 (combating institutional violence, with emphasis on the eradication of torture and the reduction of police and prison lethalities), objective iii (consolidation of a national policy aimed at the eradication of torture and other cruel, inhuman or degrading treatment or punishment); programmatic action d (progress in the implementation of agrarian reform as a means of social inclusion and access to basic rights, in articulation with health, educational, environmental and food production policies), axis 2 (development and human rights), guideline 4 (implementation of sustainable development models with social and economic inclusion, environmentally balanced and technologically responsible, culturally and regionally diverse, participatory and non-discriminatory), objective i – implementation of public development policies with social inclusion; programmatic action d ensures the demarcation, homologation, regularization and disintrusion of indigenous lands, in harmony with the projects of the future for each indigenous people and ensuring their ethnodevelopment and their productive autonomy, with axis 3 (universalizing rights in a context of inequalities), directive 7 (guaranteeing human rights in a universal, indivisible and interdependent way, ensuring full citizenship) (...) letícia virginia leidens; patricia noschang grazziotin the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 267 regarding indigenous peoples’ rights, the resolution no. 1/2020 determines the separation and voluntary isolation of indigenous populations must be appreciated, considering that the impact of infectious diseases to indigenous peoples’ health, due to a situation of vulnerability, will always be heavier. also, the resolution states all measures should be taken to protect indigenous populations’ human rights within the context of the pandemic, with preventive actions to guarantee their health. it is important to mention that the indigenous people are not vulnerable but in this time they are mainly vulnerable especially regarding the current and historically attacks and the way of they had been treat by the brazilian government (mondardo, 2020, p.83). the federal government’s disregard for the disease and its spread to the lowincome population had a devastating effect on the indigenous peoples, leading president bolsonaro to be denounced at the international criminal court for committing genocide against the brazilian indigenous population. in a repetition of the path established by the country’s colonizers, the isolated indigenous population in the forests still suffers from the invasion of gold miners and deforestation. these are some of the practices that increased during the pandemic due to the lack of federal supervision. as it mention by eduardo vieiros de castro "the disease is also spreading in the forest. with the confinement, the ngos that protected these territories were put on hold. entire regions are being invaded by gold miners, by illegal logging and by evangelical missionaries, to whom bolsonaro has given carte blanche to infiltrate indigenous lands”(viveiros de castro, 2020a, p. ). in december 2020, prosecutor fatou bensouda’s office announced that it would begin a preliminary analysis of the complaints filed by the arns commission and the human rights advocacy collective regarding the evidence of crimes against humanity and the genocide of indigenous people (comissão arns, 2020). in january 2021, the tribal chiefs raoni metuktire and almir suruí have filed a new complaint against jair bolsonaro, demonstrating the violence and murder of indigenous leaders, as well as the deforestation increase in brazilian biomes and the “criminal management of the pandemic by the brazilian government for the indigenous populations”(comissão arns, 2020); (boudons, 2021, p.1-69). the complaints to the icc were added to the request for precautionary measures filed on july 16, 2020, by the munduruku wakoborũn women's association and others, in favor of the members of the munduruku indigenous people to the inter-american commission on human rights8, requesting that brazil take the necessary procedures to protect the right to life and personal integrity, given the failures in healthcare and the continuous presence of unauthorized third parties in indigenous peoples’ territories. however, the government's request for precautionary action was not enough to stop the influx of miners into the lands of the munduruku people. since march 2021, the activity of illegal miners has intensified in the region, mainly with attacks against the munduruku people’s association of women, which has a historical struggle against unlawful mining invasions. these attacks led the federal prosecutor’s office at the state of pará to send a 8 resolution 94/2020. precautionary measures. no 679-20. membros do povo indígena munduruku em relação ao brasil [2021 human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 268 notification to the brazilian attorney general requesting the supreme court (stf) to “declare the violation of human rights and request federal intervention in the state for the strict purpose of guaranteeing the provision of public security in the jacareacanga region and contain the escalation of attacks by garrisons against indigenous leaders, associations and, ultimately, the munduruku people themselves.” (ministério público federal, 2021) the fight for land demarcation and recognition of indigenous peoples’ rights in brazil is not only contemporar. (viveiros de castro, 2020b, p.138-140 ). violations of rights and invasions in indigenous lands by illegal operators extracting lumber from the amazon rainforest intensified lately – or rather have been tacitly endorsed by the current federal government. the report made by the national research institute (inep, 2020) linked to the project for brazilian legal amazon9 refers to the complaint filed by “caciques” raoni and suruí, pointing out that the estimated scope of deforestation10 from august 2018 to july 2019 is 10.129km² (2.5 million acres) of shallow cut. the states of roraima (202.56% increase), acre (53.60%), and pará (52.04%) have been affected the most by deforestation. the rights of indigenous peoples11 , as well as the protection of the environment,12 appear in 1988’s brazilian constitution, but the judiciary13, since the enactment of the magna carta, has been called upon to guarantee these rights. regarding the demarcation of indigenous territories, according to the national indigenous foundation (funai), “currently there are 488 regularized indigenous lands that comprise about 12.2% of the national territory, located in all biomes and more prominently in the legal amazon.” this concentration results from the process of recognition of these lands, initiated by funai, mainly during the 1980s within the framework of the policy of national integration and consolidation of the economic frontier in the northern and northwestern regions of the country (fundação nacional do índio, 2021). however, there are claims still demanding the demarcation of indigenous territories and the recognition of their ancestral lands. some of them were brought to the interamerican system for the protection of human rights to be analyzed by the inter-american 9 the legal amazon refers to the nine brazilian states with territorial presence within the rainforest: acre, amazonas, amapá, maranhão, mato grosso, pará, rondônia, roraima and tocantins. 10 this is based on data generated by the deforestation monitoring project in the legal amazon by satellite (prodes). it uses landsat satellite images or similar to record and quantify deforested areas larger than 6.25 hectares (15.44 acres). prodes considers deforestation the complete removal of the primary forest cover by shallow cutting, regardless of the future use of these areas. the estimate was quantified from the analysis of 229 images of the brazilian legal amazon. ibid. 11 article 231. brasil. constituição federal, 1988. 12 article 225. brasil. constituição federal, 1988. 13 the brazilian judiciary received, between 1986 and 2020, 88,566 cases concerning environmental issues in the amazon. of these, 24 thousand cases of environmental damage, 16 thousand crimes against the flora and 11 thousand repeals or cancellations of fines. in addition, there were more than 11 thousand public civil actions, more than 8 thousand environmental crimes and 1,115 sentencing executions. the study points out that the largest number of cases was received by the federal regional court of the 1st region (trf-1), which registered 34,915 environmental disputes related to the region. [national council of justice] justice and socio-environmental protection in the brasilian amazonia. (conselho nacional de justiça, 2020.). letícia virginia leidens; patricia noschang grazziotin the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 269 commission on human rights, and the case of the indigenous people of xucuru vs. brazil was presented at the inter-american court of human rights. in the meantime the federal supreme court (stf) took an important mesure to safeguard the rights of indigenous peoples when suspended in nationwide all judicial proceedings and appeals relating to the demarcation of indigenous areas until the end of the covid-19 pandemic. "the judgment noted that indigenous peoples had suffered for centuries from diseases that have often ended up decimating entire ethnic groups in the interior of the country because their immune systems were not equipped to deal with them” 14 (stf, 2021) in february 2021, the inter-american commission published a report on this body’s in loco visit to brazil on 5 and 12 november 201815, following article 106 of the charter of the organization of american states. the report devotes 28 paragraphs to the grave violations of human rights suffered by indigenous peoples, already highlighting in 2018 what has further deteriorated with the covid-19 pandemic. the conclusion to the document gathers 12 recommendations for indigenous peoples. violations also occur with the migrant populations. concerning migrant citizens, refugees, and asylum seekers the same document recommends avoiding practices of expulsion or collective deportation, carrying out economic recovery actions to mitigate the crisis generated by the pandemic, and implement measures to prevent and fight against xenophobia. acting in contrary to those recommendations, the first measure taken against migrant populations was the closure of the border on march 17,16 2020, forbidding the entry of foreigners from venezuela. on march 1917, every brazilian land border with 14 in that regard, the judgment held that the continuation of proceedings could aggravate the situation of indigenous peoples and that, in order to minimize the risk of infection with coronavirus, the constitutional principle of precaution should be observed and, therefore, that the government should act to reduce socioenvironmental risks in order to protect life and health. finally, the judgment concluded that the nationwide suspension covered, among other cases, possessory actions, the annulment of administrative demarcation processes and appeals linked to such actions, without prejudice to the territorial rights of indigenous peoples, until the end of the covid-19 pandemic (stf, 2021) 15 .paragraph 56. in spite of the advancements registered in the legislation, the cidh sees how worrying is the situation of native communities in brazil. to the registers of invasion threats to their territories, deep challenges add up, as for title regulation and protection of lands. in countless cases, native communities don’t get the necessary protection of the state. the commission dedicates great preoccupation to the process of revision of the country’s indigenous and environmental policies, whose current federal government favours the illegal occupation of ancestral lands – when acts of violence have been encouraged against the leadership and the native communities, and when the environmental destruction of their territories was authorized. (inter-american commission on human rights, situation of human rights in brazil. 2021a,b) 16 portaria nº 120, de 17 de março de 2020 — dispõe sobre a restrição excepcional e temporária de entrada no país de estrangeiros oriundos da república bolivariana da venezuela, conforme recomendação da agência nacional de vigilância sanitária anvisa. (brasil, 2020a) 17 portaria nº 125, de 19 de março de 2020 — dispõe sobre a restrição excepcional e temporária de entrada no país de estrangeiros oriundos dos países que relaciona, conforme recomendação da agência nacional de vigilância sanitária anvisa. (brasil, 2020b) human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 270 neighboring countries18 was closed, except the one with uruguay that, according to the executive action, would come afterward. until may 2021, the migration policy continues to be administered via joint decrees from ministries determining restrictions on the entry of migrants and curbing the admission of foreigners through land and aquatic/maritime borders. such administrative acts (resolutions) already count up to a dozen, bringing legal insecurity and also entirely in contradiction with the provisions for migrants in articles 3 and 4 of the migration act (law 13,445 of 2017) and provided for refugees in the convention on the status of refugees of 1951, the additional protocol of 1967 and law 9,474 of 1998 – which accepted the provisions of the previous treaties. since the beginning of the pandemic, migrants, whether volunteers or applicants for refugee status, have found it challenging to regularize their situation. the federal police has restricted service to them, coming to understand that, with closed borders, there are no migratory controls to be carried out. in addition, due to social distancing measures, federal police offices remained closed for visits for a few months, and several migrants had their residence permits or visas expired, forcing an even greater demand for document regularization when the agency’s activities resumed. data from june 2020 indicates that 97,209 requests for refugee recognition of venezuelan (r4v 2021)19 migrants have not yet been analyzed by the national refugee committee linked to the ministry of justice. it is important to note that, even with the land borders closed, the migration influx has not ceased. migrants from venezuela and haiti kept entering brazilian territory undocumented, and the federal police refuses to receive requests for regularization on the grounds that migration is not authorized with the borders closed and deportation measures may be applied. the federal police’s argument violates both human rights treaties and the principle of non-return provided for the 1951 geneva convention. with expired documents, many migrants became even more vulnerable in brazil, as without documentation, they cannot search for decent jobs. these actions reaffirm the vulnerability of migration as detailed by said, as well as the understanding that migrants have a provisional status (sayad, 1998, p.54). acts by the brazilian government against the migrant population have been by it if common tornado in the north of brazil. two episodes exemplify it: the first one was the brazilian government’s act against the migration law and the protection of human rights when the use of force was authorized against haitian migrants on the border between the state of acre and peru. they intended to leave brazil for costa rica, mexico, and the united states. the state of acre, located in the north of brazil bordering peru and bolivia, declared a state of emergency because of river floodings, dengue fever outbreaks, and the lack of hospital beds for covid-19 intensive care. therefore, it has faced an even more significant challenge than to provide shelter, healthcare, and security to migrants (delfim, 2021). 18 bolivia, colombia, french guyana, guyana; paraguay; peru; e suriname. 19 plataforma de coordinaciòn para refugiados y migrantes de venezuela. letícia virginia leidens; patricia noschang grazziotin the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 271 the second one occurred at the invasion of a venezuelan shelter in the city of pacaraima, in the state of roraima. casa são josé (saint joseph’s house) lodges venezuelan children and women and was raided by the federal police and by state civil and military police departments under the justification of compliance with a city decree stating the shelter was agglomerating people. at the time, 31 women and 40 children and teenagers had been accommodated in casa são josé, and without any court order, the police forces violated all human rights instruments mainly because of their vulnerability to migration and for being women and children (araújo, 2021). the measure requested by the federal police was of collective deportation and infringed both the principle of non-return provided for the geneva convention and brazilian migration law prohibiting collective deportation. the united nations development programme report from latin america and the caribbean also demonstrates that the covid-19 is a crisis beyond healthcare: it is as well an opportunity to change governance. according to the report, the health crisis has to be understood as a crisis of governance. the document outlines three opportunities for change: in the arena of public policies; in the rules of the game; and in the actors involved in the political scenario (undp, 2021, p.6). the pandemic has intensified and demonstrated states’ institutional vulnerabilities, and it has further evidenced social inequalities. it is necessary to work for a more effective healthcare system and a more resilient and equitable economy that generates equal access opportunities for the next decade. 4 closing remarks we sought to instigate a reflection on human rights in a specific and expansive context, the coronavirus pandemic – covid-19, based on the concern about the state tutelage movement and priority decision-making for access to rights in the face of the constant reality of the violation of human rights. the coronavirus pandemic – covid-19 has imposed new tensions, confrontations, and attitudes in the individual, social and institutional fields, and, from them, new social formats that demonstrate the absence of the state and citizens’ rights. in these aspects, the iahrs in issuing international acts, in this case resolution no. 01/2020 of the inter-american commission, by drawing attention to the concern with the pandemic scenario and human rights in the americas, given the exceptional nature of the moment and its influence on decision-making, reverberates practices and measures from the perspective of human rights in a context in which the exception of the period cannot overturn the minimum conquests of citizens. the approach has shown topics of difficulty and sought to foster reflection based on questioning how we should think about these issues now, in a scenario of continuous transformation and difficult social reach for the culture of human rights and especially in the proposed analysis regarding to the migrant and indigenous population in brazil. human rights in times of the pandemic the age of human rights journal, 17 (december 2021) pp. 261-275 issn: 2340-9592 doi: 10.17561/tahrj.v17.6459 272 references araújo, f. 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(2020b). sobre la noción de etnocidio, con especial atención al caso brasileño. estudios de historia moderna y contemporánea de méxico, n. 60. pp. 111-144. https://moderna.historicas.unam.mx/index.php/ehm/article/ view/71408/69128. https://doi.org/10.22201/iih.24485004e.2020.60.71408 received: july 2nd 2021 accepted: october 5th 2021 https://moderna.historicas.unam.mx/index.php/ehm/article/view/71408/69128 https://moderna.historicas.unam.mx/index.php/ehm/article/view/71408/69128 https://doi.org/10.22201/iih.24485004e.2020.60.71408 human rights in times of the pandemic: a dialogue on migration and indigenous rights in brazil be abstract 1 introduction 2 human rights in pandemic times: the movement of international organizations 3 evidence of omissions by the brazilian government in violating the rights of indigenous peoples 4 closing remarks references the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 99 a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective paola balanta-cobo1 andrea padilla-muñoz2 abstract: this article provides a different methodological proposal to disability research grounded in the intersectional perspective since other forms of research, such as the dogmatic perspective of law, have shown limited results in terms of full recognition of people and groups exposed to multiple situations of inequality, specifically in the case of people with disability. we propose a methodological route that links disability to the intersectional perspective, and finally we assess an example of a process that accounts for the importance of a robust analysis to advance in critical understanding of this challenging and interesting field of study. keywords: disability, anti-discrimination law, critical studies, intersectionality, social inequalities. contents: i. introduction; i.1. the intersectional perspective from a methodological approach key aspects; ii. pathway for the definition of the methodological approach; ii.1. review of the main developments that apply intersectionality and relate to disability (step 1); ii.2. identification of the most relevant analytical criteria (step 2); ii.3. consolidation of the methodological proposal presentation of the dimensions (step 3); ii.4. application of the methodological approach (step 4); ii.5. approach to discrimination trajectories (step 5); iii. conclusions. i. introduction law is the traditional approach to the study of inequalities to which diverse groups are exposed. it adopts a dogmatic methodology characterized by positivism. although this approach has advanced in the study of problems or situations faced by persons with disability, its responses are characterized for being undynamic. these initiatives, in the majority of cases, deal with individualistic / formalist legal problems or with direct and indirect forms of discrimination. in this sense, situations of discrimination linked to systems of inter-group oppression are set aside (barrère and morondo, 2011, p.17). this paper argues that the traditional approach to research in the field of disability may be limiting the analysis, because it does not explore in depth the way in which different systems of oppression and power structures operate. it is claimed thus that the 1 doctor candidate, law school, universidad del rosario, colombia (paolabalanta@gmail.com). 2 doctor in juridical science (ph.d). master´s degree in law (llm), master in european mediation (msc). professor in human rights and disability. member of the research group on human rights. law school, universidad del rosario, colombia (andrea.padilla@urosario.edu.co). paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 100 traditional approach protects, naturalizes and perpetuates visible and invisible systematic practices of exclusion, oppression, silencing and non-recognition (meekosha and soldatic, 2011, pp. 47-75). in this context, the intersectional perspective provides both analytical and methodological elements to the study of disability in a broad and profound manner. in order to demonstrate the pertinence of this methodological approach, we review the antidiscrimination doctrine and put forward an alternative methodological proposal:1) review the main theoretical and methodological developments of researchers interested in putting intersectionality into practice, 2) select the main analytical criteria that support the methodological proposal, 3) delimit the methodological proposal, 4) apply the methodology to a documentary source related to disability, 5) describe the trajectories of discrimination that emerge as a result of putting into practice a methodology that recognizes the intersectionality of multiple forms of inequality. i.1. the intersectional perspective from a methodological approach key aspects the intersectional perspective is presented as an epistemic perspective that offers a range of opportunities to get closer to the multiple relationships established between different axes of inequality to which collectives are exposed, including persons with disability, as a result of forms of institutional functioning or power structures that perpetuate and reproduce situations of oppression (cho, crenshaw and mccall, 2013, p.795; portocarrero et al., 2014, pp. 12-43). in this way, it becomes an approach of major relevance for the law and, in particular, for critical disability studies as it allows to analyze the way in which situations of discrimination on the grounds of disability continue to exist, despite new paradigms, treaties and international and national obligations that require structural transformations. intersectionality has the potential to be regarded as an analytical and methodological starting point that accommodates all disciplines interested in understanding systems of oppression. consequently, it has consolidated as a way of analyzing the dynamics of equality and difference and how they are related to power. the anti-discrimination doctrine approaches the problem of equality and difference from single or separate axes, studying in depth the way in which structures of oppression intervene and their relationship with power, evidenced in any discipline. hence, some of its main authors consider it to be a nodal point of inquiry, open to any field of study, regardless of the situation of discrimination under analysis, far from becoming a standardized methodological proposal or a complete theory (cho, crenshaw and mccall, 2013, p. 789; yuval-davis, 2015, pp.110). a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 101 however, it is important to emphasize that the incorporation of the intersectional perspective has been limited at the normative and empirical level, in comparison with the way it has been incorporated at a doctrinal level, with extensive developments linked to critical race studies. its closeness to legal and political issues, in order to influence transformations in the pre-established order, is however unquestionable for authors such as cho, crenshaw and mccall (2013, p.796), la barbera (2017, p.193) or yuval-davis (2015, pp.1-10) who consider it a relevant scenario to address issues of human rights law, anti-discrimination policies and social movements. the link between this perspective and disability studies is unquestionable, despite the fact that it has only recently begun to be explored at a conceptual and methodological level (arenas, 2013, p. 24). now, those who interpret intersectionality as a perspective that has the potential to expose the complexity and dynamism inherent to disability have also dared to undertake the path of putting intersectionality into practice. both from a broad and from a micro-sociological perspective, the complexity of social processes is exposed to reveal hidden forms of discrimination resulting from specific intersections (angelucci, 2017, p. 16). examples of these practices include: i) a transforming perspective to approach communities, life histories and the multiple ways in which inequalities and power structures are expressed (larson et al, 2016, p. 2), ii) a mean to access the understanding of the connections between privileges and situations of subordination, iii) a form of recognition of the multiple ways in which power structures are expressed, in such a way that transformations are advanced from political action (cho, crenshaw and mccall, 2013, p. 803), iv) a way of appreciation for situated experiences highlighting their analytical and political potential in scenarios where equity and social inclusion should be a priority for people with disability (portocarrero et al., 2014, p. 38), or v) a way to broadly understand the forms and dimensions of oppression that intersect simultaneously –most of the time in the same person with disability– and through which it is possible to understand how opportunities and exclusions are configured (sommo and chaskes, 2013, p. 48; minkowitz, 2010, pp. 1-8). some examples of specific intersections are i) exclusion or deprivation: excluding someone from active participation in society, limiting the mechanism of institutionalization or limiting the opportunities to participate in decision making on matters that directly concern them, ii) oppression: oppressing someone, or placing them in a inferior position by maintaining of a stereotype belief about who, how and what assistance/care/support should be facilitated to them, iii) denial: denying someone the possibilities and opportunities to demonstrate and consolidate a life project because of personal interests or expectations; iv) marginalization: having different treatment and access to the enjoyment of opportunities and privileges –girls and women being exclusively destined for home care or assistance of others–, education, jobs –other than those socially and culturally predestined for people with disability. in this sense, the methodological proposal we are developing constitutes an opportunity to critically examine and analyze the social dynamics in which people and communities with disability live and the trajectories, systems and power structures in paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 102 which disability is configured, which would be unimaginable for another historical moment or under the traditional view of law. ii. pathway for the definition of the methodological approach here are the five (5) steps that have been taken to consolidate the methodological approach. step three (3) is characterized by a broad description of the constitutive elements. figure no. 1 figure no. 1 pathway of the methodological approach (own elaboration). a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 103 ii.1. review of the main developments that apply intersectionality and relate to disability (step 1) the first step was to identify, review and analyze the documentary information; doctrine, jurisprudential sources, legislation and reports of the united nations related to disability which specifically approach intersectionality. this search was based on the work done by cho, crenshaw and mccall (2013, p.796), who define intersectionality as an analytical and methodological disposition to delve into the structural dimension of problems related to equality and difference; and raise the importance of looking at ways to bring intersectionality into action. the selected information sources resulted from the integrated search system of the universidad del rosario through the ebsco database, using the descriptors “disability”, “intersectionality” and “methodology” in spanish and english. using the findings of the main authors or referents in the subject of intersectionality and specific developments in the subject of methodology and disability, and despite the limited sources available, we proceeded to delimit the search by author and explore other sources of information such as: official pages of the authors where they present updated academic production, books and book chapters. additionally, we used google academic for those cases in which the bibliographic source was not easy to obtain. thus, it was possible to obtain developments located in various fields of study such as: law (la barbera, 2017, pp. 191-198; naciones unidas, 2017; mackinnon, 2013, pp. 1019-1030; barrère and morondo, 2011, p.15-42 ); sociology (angelucci, 2017, pp.118); social and political sciences (yuval-davis, 2015, pp.1-10); public health (larson et al., 2016, pp. 964-969); law and political science (cho, crenshaw and mccall, 2013, pp. 785-810). similarly, we gave priority to developments that addressed intersectionality and analyzed disability from more than one axis of inequality (lawson, 2011, p. 47; zotabernal, 2015, p. 73; meekosha and shuttleworth, 2009, p .62; portocarrero et al., 2014, p. 38; sommo and chaskes, 2013, p. 47-59; arenas, 2013, pp.23-45). ii.2. identification of the most relevant analytical criteria (step 2) the documental review became the main input to define the analytical criteria that would be incorporated in the methodological proposal. the definition of these criteria made it possible to outline the key aspects to approach disability studies and to move towards "intersectionality in action" (cho, crenshaw and mccall, 2013, pp. 785-810) giving priority to social dynamics and relations between axes of inequality; without this implying unique "formulas" or rigid approximation schemes. next, we describe the aspects that, in the documental review from the criteria of practical and theoretical relevance, were recurrently incorporated and analyzed in the diverse works that include the intersectionality perspective and simultaneously have contributed with the objective of configuring a flexible and dynamic approach to the study paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 104 of disability. these aspects became the guiding elements of the proposal that will be presented later. a. characterization and contextual location of the situation being analyzed this is a key aspect which aims to move away from essentialist and universalist approaches that omit the particularities of the social reality. for various scholars of the intersectional perspective, it is fundamental to analyze the complexity and dynamism of power relations and the way in which social constructions that emerge from histories, cultures, beliefs, immersed in social, economic and political contexts, determine the particular and interconnected form as they operate from diverse axes of inequality (lawson, 2011, p. 47; yuval-davis, 2015, pp.1-10; erevelles and minear, 2010, pp. 127-145). in this form, understanding power structures and the ways in which privileges are defined will be possible if the analysis is accompanied by the recognition of the dynamics of interaction that occur in sociopolitical, cultural contexts, moments and specific spaces (cho, crenshaw and mccall, 2013, p. 807). for this reason, this methodology proposes situated or contextual analysis as a fundamental aspect of approximation; recognizing its flexible and dynamic nature, as well as the potential to reveal particular inequalities and/or resistances in certain contexts. b. analysis of the life experiences of people who are part of the situated context object of analysis this aspect widens the perspective of how each person experiences personal, social, political, and/or normative situations. this aspect is incorporated into intersectional analyses, with the aim of guiding and deepening interpretations and reflections on their identities, the social construction of inequalities or the effects of such inequalities (portocarrero et al., 2014, p.12-43); as well as on the life experiences that are configured in a particular way, as different axes of inequality converge simultaneously (lawson, 2011, p. 49; sommo and chaskes, 2013, p. 48). c. particular intersection established between more than one axis of inequality this aspect identified by the authors is a broad approximation of the intersectional perspective, and consists of the attempt to recognize each one of the axes of inequality that are involved in the situation under study, as a prior condition to identifying the particular intersection in which each axis is involved. however, this differentiation of the axes, as warned by barrère and morondo (2011, p. 40), is not meant in any way to fragment or individualize the analysis nor to a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 105 erase the political character of the inequality relations studied. from an intra categorical methodological approach (mccall, 2005, pp. 1771-1800; angelucci, 2017, pp. 1-18) it is argued that what is intended to be accounted for are precisely the categories or axes of inequality which are closely related to the situation or "case" study, and thus the heterogeneity and diversity present in the various contexts studied. it is important to identify the different axes that affect inequality director indirectly because it puts intersectionality into practice, allowing it to work strategically with categories or axes relevant to the case of study, which contribute to identify practices, symbols, institutions and structures that reproduce meanings, roles and social identities (angelucci, 2017, p. 6). d. a particular relationship established between more than one axis of inequality the second aspect seeks coherence between the principles and foundations of the intersectional perspective, and involves understanding the particular way in which the axes relate in temporal and social contexts, defining and energizing the power relations and inequality structures that generate and perpetuate discrimination (cho, crenshaw and mccall, 2013, p. 789; angelucci, 2017, p. 13). this intersection is configured from axes that are deconstructed and created from a new and particular intersection in order to reduce possible essentialisms (angelucci, 2017, p. 11). however, some authors suggest that the particular relationship between the various axes of inequality should be analyzed as the recognition of a fluid and the changing relationship and intersection of it. this means the intersection does not exclusively depend on the categories or axes of inequality, but on the way in which the axes of inequality -sometimes not so dissimilar among themare related (cho, crenshaw and mccall, 2013, p. 797; yuval-davis, 2015, pp. 1-10). e. identification of systems of oppression and power structures, through trajectories of inequality the last aspect, and also the most challenging, strives to identify how power structures work, since they are acting in a different manner and their recognition can be diffuse, and they are interwoven, naturalized, formally justified and established in political, social and institutional contexts that have withstood the passage of time and have rarely been questioned or critically reviewed. one of the main objectives of intersectionality is to account for the way in which power structures operate and relate to each other in order to produce hierarchies, in unlimited combinations of relationships between situations of inequality (cho, 2013, p. 385). paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 106 thus, this dimension emphasizes on identifying systems of oppression and power structures, through trajectories of inequality, since these represent and show dynamic forms in which situations of discrimination, disadvantage and/or transformation are generated. for this reason, we refer to the notion of trajectory proposed by caicedo and porras velasco (2010, p. 38) who state that being able to identify and recognize differences as in the case of disability -implies a complex approximation to the multiple situations that happen over time; this way it is possible to account for a social constellation of inequalities and distinguish both interior differences and exclusions, as well as those that position in places of respect for difference. ii.3. consolidation of the methodological proposal presentation of the dimensions (step 3) in steps 1 and 2, we have presented the dimensions that incorporate the main analytical and methodological considerations. these dimensions, as a whole, aim to explain how various situations of inequality converge, intersect and generate trajectories of difference which consequently cause discrimination. the dimensions are presented separately in order to facilitate the understanding. they are represented in a cyclical image (see figure no.2) as we suggest they be incorporated into the analysis in an interrelated and dynamic manner based on the analytical interests and type of situation to be explored since their approximation is more related to a process than to a linear sequence. it begins with an initial logical sequence in order to preserve the internal coherence between dimensions; it is understood that it should not be assimilated toa rigid or hierarchical structure but used as a possible approach while simultaneously remaining open to new approaches. in our example we apply it to explore issues related to disability. figure 2. dimensions that constitute the methodological proposal to analyze disability from an intersectional perspective (own elaboration). a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 107 a. situated analysis defining the situation under study this dimension proposes a flexible and dynamic approach to the multiple social, economic and cultural contexts in which different situations of inequality are presented. this way, it becomes the starting point to characterize, analyze and delimit the field of study of intersectionality. this dimension emerges from the intersectional perspective as a result of the importance attributed to the characterization and contextual location of diverse situations analyzed here, such as: experiences of people with disability, interpretations, decisions, privileges and exclusions coming from institutions, as well as the scope of projects, activities and anti-discriminatory measures created to protect this group. the purpose of this is to bring upon a critical approach to historical situations and contexts and simultaneously, reduce the level of uncertainty and ambiguity that is sometimes attributed to the intersectional perspective as a difficult practical approach where multiple factors come together. we propose to begin by identifying the context and the situations under study in order to understand the specific characteristics of object of analysis, its structural and contextual nature, and the situations of inequality. it is frequent to approach situations of discrimination that are more visible or that are more frequently related to power structures. by contrast, our proposal here is to sharpen the focus and deepen the identification of aspects and situations that participate indirectly but are seldom explored. these aspects and situations are decisive due to their role in the maintenance and naturalization of situations of discrimination. therefore, some aspects suggested for situated analysis are:  the situation under analysis is interpreted, justified and conceptualized on a criteria based on respect and dignity, not discrimination on any reason against people with disability.  when defining and analyzing the situation, it is important to locate it and contextualize it in order to take account of the specific particularities and complaints of people and groups of people with disability, moving away from universalist or general approaches.  the contextual analysis includes an examination of the relationship between the studied situation and social determinants of inequality frequently associated to situations related to people with disability (socio-economic and political context, multidimensional poverty, informal work, environmental factors, limited access to health services and quality care and inclusive education, and in general type of resources available in the environment for the full enjoyment of rights).  particular, emerging situations of inequality are identified and characterized.  the specific claims of persons and groups of people with disability broadly analyze the social, geographic, economic, political and cultural conditions in which they participate and coexist. paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 108 a broad and critical approximation of the intersectional perspective will imply the fulfillment of most of the criteria proposed for each dimension. however, cases where some of the criteria are not identified should be considered as part of the analytical process, since we must be aware of aspects that need to be further explored in order to reveal situations of inequality and trajectories that require transformation. b. appreciate narratives, experiences and ways in which people's voices are recognize this dimension is characterized by the appraisal of the different voices, experiences, forms of representation and transforming capacity in the situated contexts where people and collectives are located. in this sense, it offers analytical elements to reveal the existence of broad or narrow approximations of the diverse forms of participation and opportunities to listen to in order to understand the experiences that happen in the different life ways. to explain the political nature and transformative power of the intersectional perspective, there needs to be a broad and open recognition of the voices of those directly exposed to situations of inequality. this will take us to understand how people with and without disability interpret, coexist and live through the various power structures, as well as what mechanisms, processes, services and policies do not always guarantee the full enjoyment of their rights and claims. consequently, this dimension recognizes the importance of analyzing experiences that contribute to identifying the scope of those mechanisms defined by institutions or decision-makers. in this phase, the stories are analyzed and reviewed in order to recognize the leading role of people and groups exposed to situations of inequality seeking to account for the way in which capacity or incapacity is presumed, how various forms of protection are excluded, included, justified and naturalized. in general, it is proposed as a dimension that critically analyzes how to promote the recognition of voices, becoming an analytical tool to make visible spaces for active participation or, on the contrary, the prevalence of universalist, essentialist and heteronormative proposals that perpetuate discriminatory practices by silencing their voices. thus, some aspects that are suggested for voice recognition are:  identify the type of specific approach, based on the recognition of epistemological positions that guide proposals, programs, projects or activities; seen from an intersectional point of view that recognizes particular relationships or, on the contrary, from a general point of view, centered on disability or illness in which asymmetrical power relations predominate.  recognize the mechanisms and measures designed by institutions –such as accessibility and reasonable adjustments– to identify particular needs and alternative a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 109 forms of communication that include all types of people with disability without discrimination.  understand the various forms of representation towards people with disability and groups, moving away from classifications, hierarchies or essentialist views.  support approaches aligned with human rights, dignity and respect for diversity.  analyze the multiple and heterogeneous forms of approaching people with disability.  value experiences and presume the capacity of agency, self-determination or transformational power.  approach alternative mechanisms of participation and recognition of the voice and the will of people with disability.  explore how the expression of a will, an interest or an expectation of a person with disability is visible. c. to identify inequality axes linked to the object of study this dimension is characterized by the differential recognition of axes of inequality that are explicit or that have been widely analyzed, as well as the recognition of axes that have not been dealt with in the framework of an analysis situated in the context under study. this dimension precedes the understanding of the intersection between axes of inequality and consequently, according to the methodology proposed, appraise information to access the broad and critical understanding of the multiple and unique forms as they manifest and express situations of inequality. in order to account for the configuration of each axis we must enhance an intersectional analysis, allowing to characterize, create and demonstrate the complex and dynamic form in which the axes interact. additionally, it reveals personal, temporal, historical and social situations and contexts in which power structures have been consolidated, naturalized and homogenized. nevertheless, it is a dimension that can cause controversy because it can be understood as a reductionist or essentialist approach, but it is expected to be understood as a dimension that contributes to the complexity of the analysis, recognizing its dynamic and open nature from the construction of the axes that participate in the intersectional analysis. accordingly, some criteria to consider for the analysis of each axis are:  reference the dimensions previously studied (situational analysis and recognition of people's voices) and turn them into an input to name and clearly identify the practices, symbols, institutions and structures that directly and indirectly have been used to represent disability.  review the configuration of institutional structures; in cases related to dignity and in cases related to traditional forms of discrimination where power structures based on overprotection, conditional participation are insufficient and limited in paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 110 recognizing a legitimate way in which the expectations and preferences of people with disability can be expressed.  analyze the way in which situations of inequality are naturalized through mechanisms, measures or actions, defined and presumed to be done to guarantee and access physical and mental health services, education, training for work, social participation, independent living, among others.  identify practices related to the support / care and dignity, or actions based on protection, charity or compassion.  study the privileges, priorities and exclusions specifically on the basis of disability. d. to understand the specific relationship between axes of inequality. this dimension is proposed in order to account for the type of particular intersection that emerges as a result of the relationship between axes. here it will be possible to characterize a new and intricate form of inequality, based on the delimitation of the axes, the recognition of personal and contextual experiences and the understanding of the characteristics of the situation being analyzed. to explain the particular form of inequality from the intersectional perspective, the later cannot be understood as the sum of axes that operate in a separate manner, but as a close relationship between axes built in order to create a new relationship. the intersection that is configured will allow us to analyze both the conditions of disadvantage and oppression, as well as the forms of resistance. this will account for the political nature and transformative interest of the perspective. this dimension turns out to be very powerful and less evident than other methodological approaches to advance in the understanding of particular forms of inequality. therefore, some criteria to analyze the particular intersection between the axes related to disability are:  reveal the intersection between axes emphasizing the discriminatory practices that still persist and sometimes it is difficult to change due to the cost that in terms of power and structural transformations of the institutional order represents.  to analyze in an interrelated way emerging axes or few times included in the proposals defined by the institutionality.  identify and relate emerging axes with the purpose of creating particular intersections that in most cases take place in the same person with disability. this situation is intensified according to the characteristics of the context, systems and structures that determine what should or should not be done, the places that should be occupied, the disposition of diverse forms of participation close to the interests of third parties or linked to systems of oppression that insist on locating people with disability in places of subalternity and oppression. a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 111  an example of the foregoing is the rarely explored intersection between axes of inequality to which people with intellectual disability are exposed. through these intersections it is possible to account for the complexity of their situation and reveal how power structures function through axes related to it: 1) the type of support (based on overprotection or autonomy); 2) the way in which decision-making is conceptualized (dependent, independent); 3) forms of participation (extremely limited due to confinement or broad through the promotion of conditions for independent living); 4) access to services (for all or based on priorities); and 5) exclusions and privileges according to sex, gender, race, geographic location, educational level, and others. e. to describe the operation of oppressive systems this dimension analyzes the particular relationship of inequality that is framed in power structures and systems of oppression that have generated and perpetuated it. its purpose is to make visible diverse situations of inequality, their complexity, the way these structures are installed and naturalized in the personal, social, political, juridical and institutional context. it is also an opportunity to identify the type of structural transformations that could have an impact on the elimination and/or reduction of the effects of various forms of discrimination and inequality towards people and groups with disability. based on the foregoing, this dimension proposes the analysis of trajectory, as a representation of the framework between structures and situations of inequality, identified in the previous dimensions. this analysis is proposed as a methodological resource to account for the process of how structures of discrimination and inequality are established, revealed and reproduced, at a structural, political and discursive level, based on the presumption of incapacity, biomedical approaches, or based on classifications, etc. regarding the way to face the challenge of revealing systems of oppression and discrimination, some authors suggest analyzing the tensions represented in power structures, through the analysis of laws, policies, decision-makers, institutions, beliefs and stereotypes (yuval-davis, 2015, pp.1-10). another way has been the review of claims and critical approaches from the human, social and health sciences, activists, collectives and social movements, who, for decades, have been in charge of highlighting the predominance of actions, value systems and explanations, which instead of recognizing and valuing difference, perpetuate practices that invalidate, exclude and deny people with disability. this can be evidenced through paternalistic, reductionist approaches that deny spaces for participation and, consequently, threaten the full enjoyment of their rights (lawson, 2011, p.47). paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 112 it is in this context that the idea of representing systems of oppression through trajectories of discrimination arises, due to the intricate and sometimes subtle form, as throughout history they have been installed from diverse approaches to disability (medical-rehabilitating, social, rights, others). consequently, we move away from models of trajectory delimited by steps or lineal paths, to approach the interplay between axes and unlimited life experiences of people with disability (sommo and chaskes, 2013, p. 56). next, a series of criteria to be considered in situations related to disability and which can be evidenced in discourses, beliefs, imaginaries, or stereotypes and practices. about the discourses:  discourses, interpretations and justifications in which people with disability are situated in a position of inferiority are critically analyzed and submitted to discussion.  it incorporates updated and obligatory normative developments for the states in which the material guarantee of the rights predominates and it acts in coherence emphasizing the economic, social and cultural rights.  the analysis of the situation recognizes the naturalized way in which diverse structures and hierarchies function, reproducing and perpetuating inequalities and discrimination based on disability.  expressions are reviewed and criticized, including political and normative discourses in which only a nominal reference is made to the supposed interest in the guarantee of rights or non-discrimination.  the analysis of the situation gives account of the presumption of capacity, spaces for active participation and rejection of discourses in which incapacity is presumed and places people with disability in a situation of subalternity. about the beliefs, imaginaries, or stereotypes:  in the provision of services, asymmetrical forms of relationship and participation are revealed, which places people with disability at a disadvantage.  beliefs that privilege approaches from traditional models, centered on assistance, rehabilitation, biomedical approach or from interpretations that account for traces of models that place people with disability in asymmetrical, subaltern and unequal positions are subjected to discussion and revision.  alternative measures or precedents are identified within the field of law that contribute to transforming systems of oppression by being based on the human rights approach and dignified treatment. about practices:  actions that are justified in the interest of protecting are subject to discussion and review, but when critically analyzed they realize that such "protection" and "overprotection" makes invisible and natural measures against non-discrimination and the recognition of life projects and decisions tailored to each person.  it rejects and questions the effectiveness and claims of protocols and standardized procedures, based on scientificity. a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 113  traditional institutional practices are unveiled that propose general forms for the provision of services (leaving aside specific measures required for the broad participation of all persons with disability).  the measures defined for the transformation of the situation recognize the beliefs, personal, social, environmental, political and linguistic factors of people with disability.  the measures proposed to resolve the situation or problem under analysis take into account the diversity of economic, social and cultural contexts in which people with disability live and interact.  the mechanisms defined have the purpose of promoting the active participation of all people, considering their level or intensity of support required.  the use of criteria for the classification, categorization and distinction between persons is discussed, which naturally excludes, prioritizes and accounts for the heteronormative idea that is expected to be represented and recognized with respect to disability.  measures, activities and programs are discovered and made explicit in which it is almost imperceptible how the experiences and voices of people with disability have been valued and incorporated.  the marked interest in the observance of priorities defined by institutions or decision-makers without including the needs and claims of people with disability is critically analyzed. ii.4. application of the methodological approach (step 4) in order to implement the methodology, we propose a matrix (see annex no. 1), which will guide future analyses conducted by people or institutions interested in the issue. however, by way of example, we will now analyze a document that, although it incorporates the intersectional perspective in some sub-sections, does not manage to account for the functioning of oppressive systems and power structures and therefore becomes an input to represent the trajectories of discrimination and inequality. the example selected is the report of the united nations special rapporteur on people with disability (onu, 2017), which reviews the issue of support and recognizes the voices of hundreds of people, based on the systematization of situations of inequality (known and emerging) reported by states members, collectives, organizations, people with disability and their representatives. example presented in table form in order to facilitate understanding. paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 114 table no. 1 matrix of analysis the disability since intersectional perspective situation / case / example: a/hcr/34/58 report of the special rapporteur on the rights of persons with disability, united nations general assembly (onu, 2017). characteristics of source analyzed: report submitted to the human rights council in compliance with resolution 20/26. prepared by the special rapporteur on the rights of persons with disability, catalina devandas aguilar; taking as input 114 responses sent by member states located around the world, national human rights institutions, agencies of the united nations system, civil society organizations and persons with disability, who responded to questionnaire sent, in which they were asked about the support alternatives for persons with disability. objective of the source analyzed: to present clear and complete information in order to provide guidance on how they can move forward in the guarantee of various forms of support based on the human rights approach. characterization of the context in which the situation occurs: the report systematizes diverse situations of inequality, discrimination and advances in the protection of persons with disability, with special emphasis on the recognition of the diversity needs, and social, economic, political and cultural factors. in addition, present the main challenges and issues that, depending on the characteristics of the environment and context in which they are presented, must be corrected, as well as recommendations for transforming practices and advancing towards the full guarantee of rights. overview to characterize the situation of inequality around the support, allowed us to account for situations of naturalized discrimination, as well as asymmetric patterns and relationships that are reinforced by negative attitudes, beliefs and stereotypes evidenced in care practices with a tendency to overprotection, limited spaces for participation, negligent treatment, disempowerment, invalidation, stigmatization, silencing, segregation, and other types of situations that evidence transformations on which progress is needed. situated analysis defining the situation under study findings related to the intersectional perspective the report recognizes the importance of defining the different environments, and places people with disability at the center of the analysis based on principles of dignity, respect and non-discrimination. it includes information (personal, family, social and political), i.e. information on areas and dimensions where power structures and systems of oppression are consolidated. these interact in a particular way with the social determinants: geographical location, gender, multidimensional poverty, access to services and other emerging or rarely studied characteristics such as sustainable development, accessibility, support for decision making and support as an exchange between the person with disability and the person who works as an assistant or interpreter of his/her will. findings on asymmetric relationships and traditional or heteronormative practices the report calls into question practices in which particular needs are unknown and general measures proposed by the institutional framework. it emphasizes the importance of the new paradigm based on supports and consequently rejects contexts that propose institutionalization, invasive medical procedures or repressive and excluding mechanisms that promote institutionalization and ignore the particular characteristics of the contexts. a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 115 appreciate narratives, experiences and ways in which people's voices are recognized findings related to the intersectional perspective the report is based on the voices, opinions and self-determination of the people with disability. the information obtained makes it possible to identify particular relationships between the various situations to which people with disability are being submitted. one aspect to highlight is the way in which supports vary according to personal factors, gender, age, socioeconomic situation and origin; in this way the need for recognize of diversity, interests, motivations and other forms of representation of disability is justified. findings on asymmetric relationships and traditional or heteronormative practices the report considers the importance of transcending traditional approaches, focused on disease, on the presumption of disability, or on third parties making decisions, replacing or silencing person with disability voices. this becomes a way of recognizing people as full subjects of rights, without privilege the voice of those who have historical and social assumed the role of caregiver or has been perpetuating asymmetrical power relations. to identify inequality axes linked to the object of study findings related to the intersectional perspective although this dimension presented some challenges for the identification of emerging axes, to have information gathered in the previous dimensions facilitated their identification. the report also deal axes with which disability has traditionally been represented, such as: dependency, overprotection, conflict of interests, isolation, displacement, conflict situations, immigration, loss of freedom, communication and accessibility. it also allowed the identification of the emerging axis related to support and characterized by the denial of support to people with disability, which as a result of analyzing the lack and marginal provision of support, which limits the possibilities of carrying out daily activities, participate in society, and leads to invisibilization or negligent treatment. findings on asymmetric relationships and traditional or heteronormative practices the report propose the necessary transformation of protectionist practices, as well as deficiency-based representations of disability, which must be eradicated to the extent that naturalized and perpetuate asymmetric relationships and discriminatory situations. it questions situations of discrimination such as: reduced autonomy, general support, presumption of incapacity, denial of spaces for political participation, physical and attitudinal barriers, lack of support resources, as well as limited budget allocations that limit the full enjoyment of all rights under equal conditions. to understand the specific relationship between axes of inequality findings related to the intersectional perspective the report describes some of the situations it approaches from an intersectional perspective, as a way to move towards proposals aimed at the dignified treatment and recognition of the difference of persons with disability. specifically, a section is proposed to account for intersections related to women and girls, children and the elderly. although it incorporate inequality, the reference to the configuration of a particular type of inequality or intersection, the product of the relationship between the axes, is not explicit. on the other hand, there is the category of disadvantaged groups that includes (indigenous people, ethnic minorities, people with hiv/aids, migrants, displaced person, refugees, prisoners) that, when reviewed from an intersectional perspective, paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 116 would require particular analyses due to the contextual, social and political nature in which each situation is circumscribed. however, from the application of the criteria proposed, the gender axis was associate with issues related to family structure, geographic location, race, class, age, religion, or income level, and thus it was possible to represent the intersection in a much more complex way. in other sections, the report alludes to accessibility, the lack of consideration of support for decision-making and reasonable adjustments, and links it to axes such as age, sex, gender, access to education; thus, it was possible to infer particular intersections that account for much more significant negative effects than when analyzed separately. however, the report does not delve into this type of relationship. finally, emerging intersections were identified related to the support provided exclusively by families that perpetuate stereotypes, which is consolidated from the deconstruction of inequality axes: 1) the level of dependence of both family members and the person with disability, 2) the limited capacity to make decisions regarding the type of support required, 3) dysfunctional social relations, 4) low income level. other intersection is the lack of accessibility for children, for whom a particular type of intersection is disproportionately evident due to 1) the provision of general support for communication, which is not sufficient to resolve the difficulties they have in speaking or when they do so in a limited way, 2) the lack of economic resources to access support or alternative forms of communication, 3) residence in rural or remote areas, which makes it difficult to mobilize to places where support or services are provided, 4) limited access to social services, 5) limited or no access to the education system. findings on asymmetric relationships and traditional or heteronormative practices the report rejects traditional or separate analyses that fail to account for how asymmetric relations and power structures are maintained. it also allows us to question institutional practices such as the exclusive care given to families or the denial of support based on the justification of budgetary control; situation, when not analyzed in an intersectional manner, fail to account for the way in which the situation is exacerbated in a single person, placing him or her at a greater disadvantage. to describe the operation of oppressive systems findings related to the intersectional perspective for the analysis of this dimension, the report is based on the convention on the rights of persons with disability crpd, which acts as a normative instrument to promote spaces for active participation and reject presumptions of incapacity. in general terms, the report does not provide as much information compared to that gathered in the previous dimensions. however, the main finding refers to the identification of existing tensions between general institutional practices, thus maintaining hegemonic structures of power, which goes against the claim of particular support, as a way to promote inclusion and reduce situations of inequality. the report also made it possible to reveal the subtle but real form, as some exclusions are justified, through regressive measures, which leads to particular demands being neglected or invisible; such is the case of limited access to community support services that require personal assistance, services absent in rural areas or remote places. findings on asymmetric relationships and traditional or heteronormative practices a valuable finding refers to how most states continue to maintain exclusionary practices through measures that fail to comprehensively meet the required support needs. this is accompanied by a marked preference and naturalization of welfare protection measures, paternalistic and individualized, which maintain structures of inequality and are little related to critical approaches that seek to admit and resolve intersectional situations. a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 117 in this manner, it was possible to account for the analytical potential of the proposed dimensions from an intersectional methodology, allowing a critical analysis of alternative and systematic contemporary social issues such as disability. annex no. 2 presents a series of key questions that, together with the criteria proposed for each dimension, can be used as a reference to guide and extend subsequent analytical exercises. ii.5. approach to discrimination trajectories (step 5) está asociado con está asociado con está asociado conestá asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con está asociado con attention from predetermined criteria from decision makers situated analysis appreciate narratives and experiences epistemological approach summatory of traditional paradigm protection, biomedic, rehabilitation beliefs, stereotypes, attitudes (passive, recipients, burden on the family) silencing / limited environments / dependency intersection characterized by the challenge of promoting dignity and respect for difference to identify inequality axes the criterion of the career prevails and the voice of the pcd is underestimated intersection in which traditional practices of oppression and control epistemological approach rights, social model, dignity and support to understand the specific relationship between axes participation / accessibility / interdependence to describe the operation of oppressive systems beliefs, attitudes (agents, with experiences, with the right to full enjoy and independent living) support as an exchange based on the recognition of particular experiences the supporting person recognizes experiences and interprets or supports the achievement of an end defined by the pcd. another finding of the continuous functioning of oppressive systems was the type of interpretations, justifications and measures proposed by the institutional framework in which only in a nominal manner is the importance and value of the voice of persons with disability recognized, but in a material manner, the measures or strategies that fulfill this objective are absent. paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 118 this step is developed from the application exercise previously elaborated in table 1. starting from the identified findings and using the atlas ti software as a tool for qualitative analysis, the relationship is established between the dimensions of the proposed methodology (centre column, starting with the perspective situated). each dimension is associated with a code represented in a box, which are located side by side (left and right). this exercise seeks to represent the trajectory that is configured from the relationship between dimensions and codes, allowing an approach to the intricate and unsuspected ways of functioning and configuration of the structures of power and inequality. to this end, it proposes an exercise of contrast between asymmetric relations and traditional or heteronormative practices (codes located on the left), and measures and representations aimed at reducing the gaps and situations of inequality evidenced from the analysis from the intersectional perspective (codes located on the right). with respect to the functioning of power structures (codes located to the left), traditional discourses, beliefs and practices were identified that explicitly and implicitly account for systematic and historical situations of inequality to which groups and persons with disability have been exposed. in particular, absences were identified in the analysis located to understand the situation under analysis, and on the other hand, approaches of attention based on standards and general modes of intervention were prevalent; added to this, the trajectory allows to account for a progressive and subtle form of subordination in which the criterion of a third party or caregiver is the one that is weighed and, therefore, the voice as well as the experiences of the person with disability, are not the priority. in this way, a trajectory of discrimination with limited transforming or emancipatory potential begins to be consolidated due to the predominance of inequality axes characterized by silencing, situations that generate dependency and environments that restrict autonomy, that maintain positions of subalternity, generating particular relations of inequality in which practices of control, discrimination and oppression prevail. finally, by reviewing the power structure and system of oppression that characterizes this part of the trajectory, it is possible to account for approximations, beliefs, stereotypes and attitudes, in which persons with disability are seen as passive, recipients of attention and sometimes a burden on the family and institutions; approximations that are largely the result of cultural and imaginary constructions, close to paradigms based on protection, illness or deficiency. in contrast, the analysis of the trajectory configured on the right approaches new epistemological developments, in relation to the paradigm of support and rights approach, allowing to account for the type of transformations required in the form of inclusive practices, presumption of capacity, and establishment of beliefs and imaginaries around self-determination and alternative forms of participation of all people –without exception– in the same way, it makes visible the type of transformations or turns required to advance towards the full recognition of rights. a step beyond direct and indirect discrimination against persons with disability methodological approach to discrimination from the intersectional perspective the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 119 in addition, it highlights the importance of support rather than attention, and consequently raises issues related to other forms of relationship in which it is possible to exchange with the person with disability, where it is fundamental to recognize contexts of participation and, therefore, instead of heteronormative and universalist approaches, what is raised is the emergence of experiences located in particular contexts. configuration that also provides elements of significant value to account for the progressive importance of participation and recognition of the voices of people with disability, through the figure of the support person or sometimes understood as a personal assistant, who will focus on interpreting and supporting the achievement of objectives and priorities. in this way, a process is configured with emancipatory visions, which can be seen through axes related to participation, accessibility and interdependence. axes that, when analyzed in an intersectional manner, challenge the status quo that naturalizes and maintains exclusionary practices. it is also possible to reveal a system of beliefs, attitudes and practices in which the recognition of people with disability as agents is predominant, with the right to the consolidation of independent life projects. approaches that seek to transcend the normative and formal guarantees and are consolidated as approaches that promote material forms for the real exercise of rights. in this way, it is possible to appreciate tensions and movements interwoven in trajectories of discrimination and inequality, which represent the complexity of the social, political and cultural phenomena to which people with disability are exposed on a daily basis and on which it is necessary to continue exploring, maintaining a critical and selfcritical stance, which allows us to reveal the multiple and innovative ways in which situations of inequality or transformation are inserted and configured. finally, focusing on the above, we can conclude that the trajectory identified here, although it contributed to the example and fulfillment of the scope of this article, is an exercise that, based on subsequent analysis, we hope will give rise to other types of analytical configurations around the multiple issues that make up disability, which will also result in the consolidation of the proposal. iii. conclusions discrimination immersed in situations of inequality and systems of oppression, is a fact that exists and, at present, we can find it systematically in various groups, including people with disability. for this reason, incorporating in the analysis the main constitutive elements of the intersectional perspective in relation to disability became a proposal that allowed us to broaden the vision and advance towards the recognition and identification of specific actions required for eradication or structural transformation. however, taking on the challenge of drawing up a methodological proposal to put intersectionality into practice, in addition to allowing a broad and systematic analysis of situations that directly and indirectly influence the configuration of disability, became an alternative and systematic way of approaching the various forms of discrimination on the paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 120 grounds of disability, moving progressively away from approaches that privilege individualistic or separate views of social, economic, political and cultural situations that, as we could see in the trajectory of discrimination represented, are factors that are always present and have a determining influence. this is how this article becomes an analytical exercise that, in addition to allowing the recognition of the way in which new viewpoints to inequality, discrimination and the recognition of people with disability emerge, contributes to new approaches from critical studies of disability. additionally, it highlights the way in which it was possible to demonstrate the field of action of intersectionality in matters related to disability, transcending the analysis of axes or categories related to gender to give way to emerging situations that perpetuate situations of inequality and discrimination. in this way, it is hoped to have been able to show the pertinence of the intersectional perspective for the analysis of disability, confirming that it is an open and fertile field of study. this is how the intersectional approach is proposed as a tool for defining, justifying and critically discussing existing anti-discriminatory measures or mechanisms that leave aside complex situations of inequality. therefore, it becomes a mechanism to continue systematically analyzing the multiple and differentiated experiences, as well as the identification of intricate relationships that are woven into the various social phenomena related to disability. with respect to the dimensions proposed from the key aspects identified in the literature, the developments of reference authors on the subject stand out, with which it was possible to configure this proposal and account for the persistence of inequalities and systems of oppression that, as could be observed in the analysis carried out in the united nations report, continue to be neglected, naturalized and, therefore, need to be transformed and exposed in order to undertake structural transformations. finally, this analytical exercise leads us to conclude on the necessary task of continuing advancing in the consolidation of methodological proposals that from diverse disciplines are interested in carrying intersectionality to action in order to critically analyze the multiple and diverse contemporary social, political and legal challenges. we hope that this article will, to some extent, contribute to the delimitation of a possible route to continue advancing in this sense. references: angelucci, a. 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(2015) incorporación del análisis interseccional en las sentencias de la corte idh sobre grupos vulnerables, su articulación con la interdependencia e indivisibilidad de los derechos humanos. eunomia. 9 available at:https://erevistas.uc3m.es/index.php/eunom/article/view/2803 (accessed: 14 mayo 2019) table no. 1 matrix of analysis the disability since intersectional perspective situation / case / example: characteristics of source analyzed: objective of the source analyzed: characterization of the context in which the situation occurs: overview: situated analysis defining the situation under study findings related to the intersectional perspective findings on asymmetric relationships and traditional or heteronormative practices appreciate narratives, experiences and ways in which people's voices are recognized findings related to the intersectional perspective findings on asymmetric relationships and traditional or heteronormative practices to identify inequality axes linked to the object of study findings related to the intersectional perspective findings on asymmetric relationships and traditional or heteronormative practices to understand the specific relationship between axes of inequality findings related to the intersectional perspective findings on asymmetric relationships and traditional or heteronormative practices to describe the operation of oppressive systems findings related to the intersectional perspective findings on asymmetric relationships and traditional or heteronormative practices paola balanta-cobo & andrea padilla-muñoz the age of human rights journal, 13 (december 2019) pp. 99-124 issn: 2340-9592 doi: 10.17561/tahrj.n13.6 124 annex 2 key questions to drive the analytical exercise situated analysis defining the situation under study  when defining or identifying the situation under analysis, how is the heterogeneity inherent in the contexts and situations to which persons with disability are exposed recognized?  does the recognition of the situation to be analyzed include a critical review of the particular environments and situations in which persons with disability participate on a daily basis?  does the contextual analysis include aspects related to social determinants and inequalities (socio-economic and political context, multidimensional poverty, decent work, environmental factors, access to health services and quality care, inclusive education, barriers, opportunities and resources available in the environment for access and enjoyment of rights, social and community support network)? appreciate narratives, experiences and ways in which people's voices are recognized • are particular experiences of person with disability recognized and valued for analysis, according to the context in which they live? • are multiple and heterogeneous forms of participation of the person with disability recognized? • through what mechanisms do they introduce alternative forms of communication, so that people with disability are aware of their interests and express their voice? • is there recognition of the importance of defining support systems or types of support tailored to people and built through their active participation? to identify inequality axes linked to the object of study • are other axes of inequality identified beyond those prioritized by institutionality? • for which persons with disability are the measures aimed (all without discrimination or only for certain groups and/or persons in particular)? • what kind of approaches (rehabilitative, social, human rights) are used? what kind of measures are privileged? what situations are left out or included as an exception? • in what scenarios, at what times, under what conditions and for what purposes are the axes of inequality analyzed? to understand the specific relationship between axes of inequality • what kind of particular relationship can be interwoven when analyzing situations of inequality that at first sight account for their complexity? • what new intersections can be configured by including other axes of inequality in the analysis? • what type of intersection is established when the commonly analyzed axes of inequality are revised according to age, place of residence, type of services and support available? to describe the operation of oppressive systems • what are the most naturalized forms of discrimination that inhibit full warranty? • through what direct and indirect measures are the voice of the person with disability silenced, denied and conditioned? • what kind of situations and support measures are privileged and institutionally justified when providing services to people with disability? received: september 26th 2019 / accepted: october 22nd 2019 eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 54 eu migration policy and migrant human rights: the protection and negation of life at eu borders daniela lo coco1 abstract: this article addresses the contradiction between the generalised use of human rights’ protection within eu migration policy and the production of deaths at borders. through an analysis of the eu’s migration policy, this article suggests using esposito’s concept of immunitas to bridge inherent contradictions. protection of life and the production of death are constitutive mechanisms of western modern politics. this argument implies that human rights and the protection of life metaphorically legitimise the eu’s control of migration from third countries, while blurring the underpinning logics of government, coloniality and racism. the article concludes that protection and the negation of (certain) lives are intrinsic to the eu’s migration policy. keywords: italian theory, immunitas, human rights, eu, migration policy, biopolitics, externalisation summary: 1. introduction. 2. biopolitics and immunitas. italian theory applied to the study of migration. 2.1 migration policy as an immunity mechanism: the protection of life as the main criterion for the legitimation of power. 3. human rights and eu’s migration policy: the seed for immunity. 3.1. the protection of life and production of death as constitutive elements of the eu’s migration policy. 4. the eu’s regional protection programmes: an example of immunity. 5. conclusions. 1. introduction human rights’ protection is the cornerstone of the european union’s (eu) identity and represents one of the main goals of its external action. since the beginning of the integration process, the eu has progressively extended the promotion of human rights within europe and in third countries. in 2009, the treaty of lisbon2 (eu, 2007) strengthened the eu’s commitment to human rights’ by placing their protection at the centre of the eu’s external action (gómez isa, churruca muguruza & wouters, 2018, churruca, 2019). following the joint communication of the european commission (ec) and the high representative of the eu of the european union for foreign affairs and security policy entitled ‘human rights and democracy at the heart of eu external action towards a more effective approach’ (ec 2011), the eu council (coeu) adopted a strategic framework on human rights and democracy which shaped the eu’s external action on human rights that affected all policy areas. migration issues have been included into the eu’s external action (commission of the european communities, 2002) reinforcing the partnership with the countries of origin and transit as part of a process that has been called ‘externalisation’ (lavenex, 2006; lavenex and wichmann 2009, lavenex 2015; lemberg-pedersen, 2012; moreno-lax and lemberg-pedersen, 2019). the council held in tampere in 1999 (eu, 1999) established daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 55 the area of freedom, security and justice (afsj), which made it necessary to control the eu’s external borders and therefore to develop a common eu migration policy. in 2005 the european commission adopted the global approach to migration (coeu 2005), which was modified by the global approach to migration and mobility (ec 2011b). these two policy documents, together with the european agenda on migration (ec 2015) and the new pact for migration and asylum3 (ec 2020), furthered the inclusion of human rights’ protection within the control of unwanted migration in non-eu countries (lembergpedersen, 2015; moreno-lax, 2020). despite the eu’s protection framework and the fact that human rights have permeated migration policy, several ngo reports, migrants and activists have documented the increase of migrant human rights violations and deaths at eu borders.4 detention centres, pushbacks, deportations, deaths, violence against migrants, shipwrecks, camps for stranded people and physical aggressions are daily occurrences. it therefore seems that the eu’s migration policy has become progressively more violent and sophisticated, to the extent of affecting migrants’ rights (collyer, 2019). there is a strong inherent contradiction between the generalised use of human rights’ protection and the simultaneous use of violence in terms of the ‘strategic and systematic component’ in eu migration politics and policies (walters, 2011:150). as the use of violence produces migrants’ deaths and human rights abuses, migration policies end up killing the very people that they claim to protect. 3 the new pact on migration and asylum was proposed the 23th september 2020 (ec, 2020). however, it is not agreed upon. the pact does not represent any rupture in the continuity of the logic of the eu’s migration policy; conversely, it intensifies its characteristics: accelerated procedures, externalization, return, increased securitisation, outsourced responsibility and shrinking asylum and solidarity space. i decided not to include it within this paper firstly, because the pact was proposed while i was writing this article, and second, because it is still under construction. contemporary negotiations on the new pact are related to the opposition in some central elements of european southern countries. in particular, the 25th november 2020, spain, italy, malta and greece sent a letter to the european commission stating that the pact constitutes a good start but there is an imbalance in solidarity (rtve 2020). besides, in march 2021, cyprus, italy, spain, greece and malta issued a joint declaration calling for the eu to guarantee the fair distribution of responsibility among member states on migration, in which they ‘stress the need for the future european pact on migration and asylum to structure real and effective cooperation with the countries of origin and transit’. https://www.lamoncloa.gob.es/lang/en/gobierno/news/paginas/2021/20210320athens-med5.aspx 4 there is extensive academic literature on border studies. the understanding of borders has evolved from the late 1980s and early 1990s, when the analysis shifted from interpreting borders as territorial fixed lines dividing sovereignties to the idea of bordering as a set of socio-cultural and discursive processes and practices that are no longer solely the remit of political sciences and has become an interdisciplinary field of study. there was a transition from the concept of ‘border’ to that of ‘bordering’, which includes a critical reflection on the proliferation of border forms, functions and practices (brambilla, 2015). after this shift from border to bordering practices, critical border studies were formalised as a distinctive approach in 2012, in response to the growing multiform complexity and disparity in the contemporary bordering practices which are both cognitive and separates ‘us’ from the ‘others’ (parker & vaughan-williams, 2012). according to parker and vaughan-williams (2012), critical border studies are a heterogeneous assemblage of thought on the nature and the location of the border. this approach problematises the border by putting it as a site of investigation, re-conceptualising it as a set of performances in multiple lived spaces where ‘the border is not everywhere for everyone’. lately, researchers have theorised a “processual turn” in border studies (bambrilla, 2020) for the purposes of this paper, i will conceptualise ‘borders’ from a critical border studies perspective, understanding borders as ubiquitous, multiple and dynamic. https://www.lamoncloa.gob.es/lang/en/gobierno/news/paginas/2021/20210320athens-med5.aspx eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 56 this radical biopolitical contradiction is a fundamental feature of contemporary european migration policies (vaughan-williams, 2017b, foucault, 2006, esposito, 2006, esposito, 2005). externalisation plays an important role in transferring the biopolitical contradiction into third countries between the stated goal (the protection of life) and its actual consequences (the production deaths of third-country nationals’-others-) (lembergpedersen, 2015). this modern contradiction has successfully penetrated external migration politics and policies, turning migrants into both threats and subjects of protection, who must be both simultaneously controlled and (theoretically) protected (moreno-lax & lembergpedersen, 2019). the eu’s regional protection programmes (rpp) are a paradigmatic example of the use of human rights’ protection as a goal that legitimises covert repressive measures in third countries. this article addresses the problematic relationship between the generalised use of human rights’ protection in the external dimension of the eu’s migration policy, and the violations of migrants’ human rights and production of deaths of others at eu borders. it relies on a bio-political paradigm typical of italian theory5, which particularly looks at migration policy as the place of re-production of a bio-political tendency of protection of life, while at the same time causing death (campa, 2015). despite esposito’s highly valuable ideas within migration studies, only a few works have applied his ideas to the analysis of migration policies. as an exception, vaughan-williams’ analysis on human rights’ protection has used esposito’s concepts, which i believe are fundamental to understanding the logic of eu migration policies. this paper suggests that esposito’s concept of ‘immunitas’ is a useful context in the study of migration policies because it provides an opportunity to bridge the contradiction between human rights protection of life and the production of death inherent to eu migration policies. immunitas allows us to overcome the duality born from foucauldian biopolitical analysis present in contemporary migration studies. this duality, does not allow us to completely understand the nature of the contradiction within eu migration policies. however, the concept of immunitas serves to understand the protection of life and the production of death as constitutive elements of modern western politics, where the negation of life is the logical consequence of the protection of life6 (esposito, 2005). with immunitas, esposito is answering the following question: why does a politics of life tend to reverse into a politics of death? the answer of esposito’s is that the reverse of politics of life is the death of others and those deaths serve to preserve the own political body (esposito, 2012). this means that there is an intrinsic immunitarian logic in modern politics that serves to preserve and protect the (own) community. esposito argues that, ‘politics is nothing other than the possibility or the instrument for keeping life alive’ (esposito, 2008, p.46)). but at the same time, politics are not dealing with the preservation 5 i would like to deeply thank leopoldo a. moscoso and gerardo costabile nicoletta who brought these authors to my attention and helped me to understand them and feel them. i would like to acknowledge, specially, their help, patience, love, time and guidelines which were extremely useful for me not only professionally but personally. 6 esposito takes the example of the genocide in germany during the nazi the immunitary principle – already elaborated in his previous works, communitas and immunitas – is taken as the fundamental explanatory paradigm of modernity and of the deadly nazi machine. daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 57 of each single life, but with the power to protect the own political body. the immunitarian principle serves to simultaneously read positive power to affirm and preserve (certain) life and the negative power to negate and annihilate (others) life in order to protect the own body (the eu). this argument is radical, because it implies that migrants’ deaths are not only a negative consequence of controlling migration, but an inherent characteristic of modern migration management systems. in addition, immunitas serves to understand firstly, the eu’s assumption that it does not have any obligations towards others (outside the community); secondly, human rights’ protection as a mechanism of reinforcement of power and for the legitimation of migrants’ repression (as an immunitarian principle typical of western politics); and thirdly, a european metaphor of self-perception that blurs the underpinning logics of governance, coloniality and racism under an immunitarian principle of protection. this paper will first (1) outline the implications of using a bio-political paradigm for studying migration to illustrate the ideas of the so-called italian theory. second (2), it will exemplify roberto esposito’s concept of immunitas in relation to migration. third (3), it will analyse the three main eu migration policy documents, namely, the global approach to migration (ec 2005), the global approach to migration and mobility (ec 2011) and the european agenda on migration (ec 2015) in order to show the inherent contradiction found in the eu’s migration policy between the protection of life and the production of death. fourth (4), it will describe the regional development and protection programme (rdpp) as a paradigmatic example of european immunity by focusing on the use of human rights’ as a legitimising element of repressive measures in third countries. finally, the paper will draw some conclusions. 2. biopolitics and immunitas. italian theory applied to the study of migration. critical approaches to migration have placed the contradiction between the protection of life and production of death at the centre of academic biopolitical debates on migration. the biopolitical paradigm considers that there is an antagonistic dichotomy between the protection of life and production of death as a constitutive element of western modern politics (foucault, 2006). this duality has a significant presence in migration politics and policies, which combine human rights’ protection with coercive and repressive measures as a way of managing international migration. migration politics are usually understood through a dichotomy where policies have the potential to both protect life and contain migration, but problematise explaining the relationship between them. a new approach that can integrate both aims is needed that will bridge the gap between policies (protection) and reality (production of death and violation of rights). the biopolitical paradigm focuses on the relation between governance and population; between people and sovereign power. this paper relies on the so-called italian theory that re-thinks foucauldian biopolitics by producing useful concepts to critically eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 58 approach the study of migration and borders. italian theory constitutes one of the most successful approaches for a radical analysis of contemporary migration policies. giorgio agamben, toni negri and roberto esposito are key authors in a school of thought that is characterised by an obsession with disentangling the embryonic biopolitical opposition in modern politics between the protection of life and the production of death (hardt, negri, 2009, foucault, 2006, esposito, 2006, agamben, 2016, agamben, 2019). this opposition is strongly featured in the eu’s migration policy, where ‘irregular’ migrants are presented as being both a security threat and threatened lives in need of saving (vaughan-williams, 2017b:95). migration policies and politics have turned borders into complex spaces featured by both, protection of life and production of death. in this context, the biopolitical paradigm is particularly useful for the theoretical understanding of contemporary borders. biopolitics, as stated by michel foucault, serves to resume the modern transition from the right of sovereignty ‘to take life or let live’ to the right ‘to make life and to let die’. after foucault, giorgio agamben slightly corrected this argument by stating that the relationship between bios (political life) and zoè (the pure biological fact of living) is not only a modern constitutive feature of western politics but it has also been present in the political sphere to different degrees throughout history. nonetheless, biopolitics entails an embryonic duality in contemporary politics: the protection of life and the production of death. these two sides have produced two different theoretical understandings. the first is a positive and vitalist drift and the second one is a negative one that prioritises the production of death, known as ‘thanatopolitics’ (agamben, 2016) and later, ‘necropolitics’ (mbembe, 2011). when this dichotomy is transferred to the study of migration, ‘letting die’ means the production of death by failing to act. for example, exposing migrants to potential death; allowing boats to sink; neglecting their health care needs; blocking boats at sea; deportations; pushbacks; refoulements; leaving migrants stranded on greek islands to the extent that they become desperate and commit suicide; and not assisting births in the forests of northern morocco, to mention a few. on the contrary, making life has to do with human rights and the eu’s proposals to protect people in need, the generalised categories of protection, different humanitarian ngos working at sea and borders, refuge and asylum, among others7. thus, the biopolitical paradigm unifies both possibilities because 7 critical humanitarian studies have addressed how this ‘making life’ appears to be in permanent opposition to ‘making death’, or ‘humanitarian violence’. they have studied how ‘humanitarian interventions could be seen as having replaced just wars’ from a biopolitical perspective (fassin & pandolfi, 2010:13). these studies have focused mainly on how humanitarianism and military interventions are legitimised through the protection of life but produce the ‘least of the evils’ (some deaths). humanitarianism, is approached as an element connected with the protection of life and the production of death, with care and control (weyzman, 2017:51). some researchers have looked at the emergence of humanitarian government and to the inclusion of a ‘humanitarian reason’ in the governance of migration, borders and refugee camps (agier, 2011:183, fassin, dieder, 2016). in order to understand global governmentality, this group of researchers have included in their analysis several biopolitical concepts such as ‘bare life’, ‘inclusive exception’ or ‘life under a ban’ which are typical within the italian theory. this means that humanitarian studies and italian theory are connected through biopolitics and its terminology and concepts. in this regard, border controls, refugee daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 59 they are two sides of the same logic, which, according to this approach, is one of the main characteristics of modernity. both sides, bios and thanatos are the two possible facets of the same logic. this dichotomy takes centre stage in the contemporary study of migration policies from a biopolitical perspective. a specific group of theorists have attached more weight to the positive reading of biopolitics (papadopoulos, stephenson & tsianos, 2008, hardt, negri, 2009, mezzadra, 2005, mezzadra, neilson, 2017), arguing that the power of bios is not reducible or governable; life is more powerful than darkness, and resistance is possible. these theories are usually referred to as the autonomy of migration (aom) and are mostly linked to the well-known italian thinker toni negri. they prioritise migrants’ agency, subjectivity and the capacity of political contestation and resistance even inside detention centres and refugee camps. this positive reading is a reinterpretation of mobility ‘as ontologically prior to any attempts by border security authorities’ (vaughan-williams, 2017a:8). in contrast, the negative face of biopolitics is to be found mostly in agamben’s idea of ‘bare life’ and ‘exception’ giving primacy to power over life (2016, agamben, 2019). agamben’s interpretation of power is totalising, and this renders resistance and contestation problematic. within a negative interpretation of migration policy focused on ‘thanatopolitics’8, migration policies operate as a dehumanising element, exposing migrants to ‘irregular status’ and to lethal conditions. refugee camps, detention centres and spaces of exception are at the core of the analysis. these negative and positive developments of biopolitics produce different poles how migration politics and policies is understood. however, neither can escape from the totalising dual argument and fail to provide a clear perspective on borders and migration. thanatos and bios, life and death cannot read nuances and therefore they do not serve to understand the simultaneous relationship between protection and production of death at borders today. agamben and negri’s biopolitical analysis have been highly useful for a critical understanding of contemporary migration policies and politics. however, it is still necessary to go further into the theoretical analysis in order to include the simultaneous existence of both protection of life and production of death at borders. border politics generate simultaneous mechanisms of protection and death production. in the following section, i will expose why esposito`s concept of immunitas is useful for the critical camps, asylum process centres are interpreted as spaces of simultaneous control and care in relation with the humanitarian action (ticktin, 2011, fassin, didier, 2012, calhoum, 2013, weyzman, 2017). following this line, william walters (walters, 2011) put together security studies, humanitarian studies and border studies theorising the emergence of the “humanitarian border”. academic production on this topic has led to the development of critical biopolitical approaches to the study of borders and its technologies (cuttitta, 2019, cuttitta, 2018, pallister–wilkins, 2015, vaughan-williams, 2009). all those approaches rely on a biopolitical paradigm including biopolitical concepts as developed by the italian theory. despite the fact that academic production relies on italian theory few take into consideration the potentialities coming from the concepts of esposito’s, particularly immunitas, when applied to migration studies, protection and human rights (esposito, 2005). 8 further developed by achille mbembe as ‘necropolitics’ from a decolonial perspective (mbembe, 2011) eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 60 analysis of this dichotomy in order to provide a theoretical foundation for the following sections. 2.1 migration policy as an immunity mechanism: the protection of life as the main criterion for the legitimation of power esposito’s concept of immunitas is essential to understand the problematic relationship between the generalised use of human rights’ protection within eu’s migration policies and the violations of migrants’ human rights and production of deaths at eu borders. the idea of immunitas is complex, but it is fundamental to an understanding of contemporary western politics on migration. it assumes that the biopolitical contradictions typically inherent in modernity have permeated the political language of modernity, including borders and migration policies and politics (esposito, 2005). in what follows, i will discuss the notion of ‘immunity’ and outline its theoretical implications in the analysis of migration policies. it is essential to understand immunitas in relation to the concepts of communitas and ‘biopolitics’. in order to understand esposito’s paradigm,9 it is important to recall foucault’s argument that an embryonic contradiction between the politics of life and the politics of death has inevitably emerged in human political history. in order to overcome this dichotomy, esposito presented the concept of immunitas (2005), which represents a theoretical solution to the foucauldian duality between bio-politics and thanato-politics. esposito argues that foucault was not completely right when pointing at biopolitics as a characteristic of modern politics; in his view, it is not biopolitics that characterises modernity but immunitas. biopolitics, according to esposito, has existed since ancient times; however, it is immunitarian principle that constitutes a fundamental element of modernity. immunitas is, firstly, an intrinsic mechanism of reproduction of the political body and therefore of the community; and secondly, immunitas is located at a crossroads between law-rights (legal dimension) and life-bios (biological dimension), drafting two lines of meaning, one juridical and one related to the semantics of biology. immunity has to do with the attempt to protect life and relying on political categories that tend to turn against themselves. regarding the juridical meaning, esposito goes back to the legal notion of the ancient greek. in im-munitas, the prefix ‘im’ is the negation of munus. munus is the duty to give to others, the obligation to prioritise the necessity of others, a gift that must be restored to the community. the idea of munus shatters individuality, while shaping communality. munus is the ‘absence’ that we have in common with the members of the community, it is what constitutes ‘us’ and makes us part of the community. by using munus, esposito moves away from the concept of membership through possession and transforms it into membership through absence. im-munitas is the absence of an obligation towards ‘others’; someone who is immune has no obligation towards others and is exempt 9 these ideas are developed in the three books by roberto esposito: bios. biopolitics and philosophy, communitas. origin and destiny of the community (2006) and immunitas (2005) the protection and negation of life. daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 61 from any obligations to the community. the negation of munus represents a rupture of communal exchange; it disrupts the social community circuit. if we interpret the eu’s migration policy as an immunity mechanism, the assumption would be that eu institutions consider that they have no obligation to the ‘migrant others’, because they do not consider those specific migrants to be part of our community, of the own body. the eu has no obligations towards them because they are not ‘us’; they are a threat to ’our’ community. as far as the biological dimension of immunity is concerned, it has to do with the idea of gaining protection from danger. immunity is a simultaneous relationship between the protection and the negation of life, which is in a fragile equilibrium. a body needs to gain immunity from dangerous external elements such as illness and invasions that pose a threat to the reproduction of the community, to the survival of the (political) body. furthermore, illness needs a living body in order to survive, for if the body dies, illness cannot survive, and the reproduction of life becomes impossible. if a community is in danger, it is necessary to develop immunity responses to protect the community-body, to absorb the invasion in order for life to prevail. politics aims to protect the life of the community and in order to do that, dangers must be neutralised by gaining immunity. the protection of life is the most powerful legitimation of the production of death, it excludes through inclusion. the protection of life functions as the inclusive immunitarian element that serves to legitimise power and the production of certain deaths (esposito, 2005). within this medical metaphor game, it may be easy to envisage healing a body by using the same poison (or virus) that caused the disease: a vaccine or pharmakon. vaccines are made using the same components that are found in a disease; they are inoculated into the body in non-lethal quantity to provoke immunity. however, if the amount is excessive, the body will die. immunity generates resistance to the external elements that had invaded the community-body, including the illness to the whole. in this regard, the body is victorious when it succeeds in incorporating the poison into itself; the body does not eliminate the poison, it neutralises and includes it into the whole. in the words of esposito (2005, 2006), nothing reinforces the host body better than an illness that has been dominated and turned against itself. if we interpret eu migration policy as an environment for the reproduction of the immunity mechanism, we can recognise that migration is socially constructed as an external threat to the body-community. in order to be neutralised, the illness/threat must be combated by incorporating it in exactly the same way as viruses or bacteria are into vaccines. the eu’s immunity mechanisms counteract the perceived threat by including migrants/illness through exclusion. in other words, the eu uses the same political categories that keep the body alive, protecting life to neutralise dangers like a vaccine reproduces life through an antidote. the protection of life legitimises repression, death and power. fighting illness will always legitimise repressive responses by constructing an external enemy (esposito, 2005, p. 176). in this respect, the opposition between the generalisation of human rights and increase of migrants’ deaths is an example of the immunity mechanisms that neutralise the enemy by incorporating it into the political body. the protection of life, of human rights against the external enemy, serve to protect the community from the threat/victim/migrant/other. migration control policies and human eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 62 rights are part of an immunity reaction that involves the same violence it intends to neutralise, where the protection of life, particularly as it is materialised in human rights, is the main criterion for the legitimation of power (esposito, 2005). immunity is an account of itself, a metaphoric narrative of the self, which gives meaning to the modern order while concealing the underpinning structures of power. 3. human rights and eu’s migration policy: the seed for immunity. in 2002, the unhcr’s global consultation on international protection involved states, including the eu member states, in the agenda for protection. this agenda was intended to develop ‘special’ or ‘multilateral’ agreements to ensure improved burden sharing, with countries in the north and south working together to find durable solutions for refugees. this included ‘comprehensive plans of action to deal with mass outflows, and agreements on "secondary movements”, whereby the roles and responsibilities of the countries of origin, transit, and potential destination are better defined’ (unhcr, 2002: 6). the unhcr programme of action called on states ‘to examine the root causes of refugee movements, particularly armed conflict, and to devote greater resources, both human and financial, in developing respect for human rights’ (unhcr, 2002: 11). the eu internalised this international generalisation of protection as a means of migration management the eu had already placed human rights’ protection at the cornerstone of its external action within the treaty of maastricht10 (teu) (eu, 1992). article j-1 of title v, provisions on a common foreign and security policy, established that one of the objectives of the common foreign and security policy was to ‘consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’. in addition, article 21 teu11 provides that ‘the union shall seek to develop relations and build partnerships with third countries’ pursuing ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the united nations charter and international law’ (eu, 2012). the eu’s protection framework for the external action culminated with the treaty of lisbon in 2009, which made human rights a must in its relationships with third countries. the protection of human rights is a key element to the construction of the area of freedom security, and justice (afsj) established in the eu council held in tampere (eu, 1999). the construction of the afsj strengthened the incorporation of migration issues into foreign policies, connecting internal and external action. at that point, the union needed to ‘develop common policies on asylum and immigration while taking into account a consistent control of external borders to stop illegal immigration and to combat those who organize it and commit related international crimes’ (eu, 1999, paragraph 3). following an immunitarian logic, the idea of controlling who comes from outside in order to protect the inside (the community) is the backbone of eu migration control beyond borders. in this equation, partnership between member states and third countries 10 entered into forced 1 november 1993 11 in its consolidated version of 2012 daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 63 is fundamental to govern migration. thus, the eu seeks to combine policies targeting poverty and conflict prevention and to strengthen democratic states by ensuring respect for human rights (eu, 1999, paragraph 11). the union is ‘fully committed to the obligations of the geneva refugee convention and other relevant human rights instruments, able to respond to humanitarian needs on the basis of solidarity’, and this requires offering ‘guarantees to those who seek protection’ (eu, 1999, paragraph 3 and 4). in this way, third countries might contribute to preventing people from migrating to the eu; this would help the eu to contain threats coming from outside. this process blurs the threshold between ‘in and out’, while transferring european interests onto non-eu countries by following colonial logics. in 2002, the conclusions from the seville european council reinforced the external dimension of migration policy through cooperation ‘with the countries of origin and transit’ (council of the eu, 2002, paragraph 27). the council emphasised that protection should be included in its external relations with third countries on migration issues, thus intensifying the ‘root causes approach’ (balzaq, 2008). one year later, the thessaloniki european council (coeu, 2003) reaffirmed the combination of human rights’ protection, external action and migration control. in particular, the presidency conclusions highlighted the importance of participation in the relevant international human rights instruments,12 while reiterating the need for cooperation with non-european countries in managing migration and in the creation of asylum systems, with specific reference being made to access to effective protection. the european parliament resolution on asylum procedure and protection in regions of origin invited the commission to ‘examine ways and means to enhance the protection capacity in regions of origin with a view to presenting to the council, before june 2004, a comprehensive report suggesting measures to be taken, including legal implications’ (european parliament, 2005, p. 228). the thessaloniki council put on the table the idea of ‘delivering protection’ to third countries as a way of governing migration, following the line of the unhcr agenda for protection (unhcr, 2002). 3.1. the protection of life and production of death as constitutive elements of the eu’s migration policy three main policy documents form the basis for the structure of the eu’s migration policy: the global approach to migration (gam) in 2005, the global approach to migration and mobility (ec, 2011b) and the european agenda on migration (ec, 2015). all three were launched after a violent and depoliticised event that was aimed to ‘respond to the challenges of migration’ (coeu, 2005, p. 3) and to create strategic ‘strong links and alignment between relevant eu policy areas and between the external and internal dimensions of those policies’ (ec 2011b, p. 3). the eu’s migration policy has been ‘reactive’ over time; this means that policy documents are generally produced as an institutional reaction to dramatic events such as shipwrecks, murders, mass arrivals, wounded migrants, tortures or migrants’ deaths. these events serve as ‘accelerating pills’ 12 conclusion 19 from thessaloniki mentioned conventions on human rights, including the geneva convention of 28 july 1951 relating to the status of refugees as amended by the new york protocol of 31 january 1967, among others. eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 64 for the eu’s political action in shaping public opinion (castles, 2004). in this sense, life and death appear indubitably entwined in immunity terms within the process of eu migration policy construction. the external dimension of eu migration policy has been characterised by the generalised introduction of human rights’ protection over time. however, an intrinsic contradiction stems from the violation of migrants’ rights and the production of death at the eu’s borders. there is a seamless link between the how eu migration policy has fared in terms of protection over time and the production of death at eu borders. in 1988, the spanish newspaper el país (narvaez, 1988) published an account of the first death in the western mediterranean. it was about a moroccan migrant and eighteen other people who had disappeared while attempting to reach the spanish coast. one year later, the first fences were built between the north african spanish towns of ceuta and melilla and moroccan territory. the erection of the fences provoked incidents in the moroccan neighbouring areas, and in 2005 at least five people were killed by direct shots (abad and rodriguez, 2005) as they attempted to enter ceuta. responsibility for this has still not been allocated either by the spanish or the moroccan authorities (medicins sans frontiers, 2005). in parallel, the situation in lampedusa in the central mediterranean route was also a matter of concern for both the european parliament (2005b) and for the unhcr (2005). the high number of arrivals, together with the living conditions at the local facilities and the collective expulsions to libya, were clearly in violation of migrants’ rights at the time. as a reaction of those events, the commission launched the gam13 in december 2005, targeting the european mediterranean region. the gam mentioned the need to ‘help’ third countries to ‘meet their obligations under the 1951 geneva convention and other relevant international instruments on international protection, fighting illegal migration, trafficking in human beings’ (coeu, 2005). in this way, migrant human rights’ protection was presented to be part of a european goal to be achieved by third countries with the ‘help’ of the eu. the union would contribute to the ‘capacity building’ of those other countries of origin and transit that were not able to protect migrants and asylum seekers by themselves. ‘the eu will strengthen its dialogue and cooperation with all those countries on migration issues, including return management, in a spirit of partnership and having regard to the circumstances of each country concerned’ (coeu, 2005, p. 3). through the gam, the european council recognised the importance of tackling the root causes and human rights as part of a ‘long-term process to respond to the opportunities and challenges of migration’. the gam specifically mentioned, ‘the creation of livelihood opportunities and the eradication of poverty in countries and regions of origin, the opening of markets and promotion of economic growth, good governance and the protection of human rights’ 13 a global approach to migration was adopted by the european council in 2005 and confirmed by the 2006 council. ‘the global approach aims to formulate comprehensive and coherent policies that address the broad range of migration-related issues, bringing together different policy areas’. ‘the global approach has a strong theme of working in partnership with countries of origin and transit: its key concepts are partnership, solidarity and shared responsibility’ memo/07/549 brussels, 5 december 2007, global approach to migration. https://ec.europa.eu/commission/presscorner/detail/en/memo_07_549 https://ec.europa.eu/commission/presscorner/detail/en/memo_07_549 daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 65 (coeu, 2005, p. 3). in this way, the gam reinforced the incorporation of protection into the eu external action regarding migration in the mediterranean region. while the gam constantly referred to human rights’ protection and capacity building in third countries, migrant deaths occurred at eu borders. after the release of the gam, more than 31,678 people arrived in the canary islands in 515 dinghies14 (generally known as pateras or cayucos in spanish), and around 6,000 died in the attempt during the so-called ‘cayucos crisis’ in 200615 (international peace institute 2016). the immunity contradiction stems from a radical dichotomy: protection of human rights was simultaneous to the production of death at eu borders. the development of eu’s migration policies over time has gone hand in hand with both the introduction of protection in foreign policy and the use of violent practices at eu borders. in 2008 the european directive on return often referred to as the returns directives (coeu, 2008) was adopted, which allowed for the deportation and detention of migrants in specific centres to become established in all eu member states. deaths and violations of rights were also reproduced within internal borders. in 2007, osamuyi akpitaye was suffocated to death during the assisted deportation flight from spain to nigeria, after his guards duct-taped his mouth (duva, 2007). as a result of the same repressive and violent logic, samba martín16 died in 2011 while detained in the madrid detention centre in aluche with no medical assistance. alik manukyan (rodriguez, 2013) and idrissa diallo (european parliament, 2012) died in the zona franca migrants’ detention centre in barcelona in unclear circumstances. in parallel, the extension of protection continued with the creation of the european asylum support office (easo) in 2010. the easo was created in order to ‘help member states fulfil their european and international obligations to give protection to people in need’ (eu, 2010). one year later, in 2011 frontex extended its agency’s mandate17 while simultaneously introducing obligations related to fundamental rights (meissner, 2017). the union consolidated the expansion of human rights’ protection onto migration policy, multiplying both internal and external borders and spreading the violation of migrant rights and migrant deaths (orgaz alonso, 2018, p. 238) 14 small boats. 15 ‘cayucos’ refers to the fisher wooden boats typical from senegal that were used to travers from senegal to canary islands during 2005 and 2006. in 2005, 4,718 people reached the canary islands, in 2006 the number jumped to 31,859. almost half (16,237) came from senegal, while other major countries of origin included gambia (3,633), morocco (3,423), côte d’ivoire (1,698), guinea-bissau (1,448), and mauritania (1,237) (international peace institute 2016). 16 only in november 2020 (almost 10 years later) did spain recognise its responsibility in samba’s death. https://www.elsaltodiario.com/cie/el-estado-espanol-admite-su-responsabilidad-en-la-muerte-de-sambamartine 17 regulation (eu) no 1168/2011 of the european parliament and of the council of 25 october 2011 amending council regulation (ec) no 2007/2004 establishing a european agency for the management of operational cooperation at the external borders of the member states of the european union. the pint number 9 establishes that ‘the mandate of the agency should therefore be revised in order to strengthen in particular its operational capabilities while ensuring that all measures taken are proportionate to the objectives pursued, are effective and fully respect fundamental rights and the rights of refugees and asylum seekers, including in particular the prohibition of refoulement’. see: https://eur-lex.europa.eu/legal-content/ en/txt/pdf/?uri=celex:32011r1168&from=en https://www.elsaltodiario.com/cie/el-estado-espanol-admite-su-responsabilidad-en-la-muerte-de-samba-martine https://www.elsaltodiario.com/cie/el-estado-espanol-admite-su-responsabilidad-en-la-muerte-de-samba-martine https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32011r1168&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32011r1168&from=en eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 66 the arab springs and the beginning of the war in syria caused thousands of displaced people to arrive at european borders seeking refuge. again, the eu reacted by releasing another policy document known as the gamm (ec, 2011b), which elevated migrants’ human rights protection. the new gamm (ec, 2011b) served to update the 2005 gam to the new migration situation18 of displacement and border crossing provoked by the arab springs in the mediterranean region. with the new approach to migration, human rights’ protection gained a central role. the provisions referred to the need for a ‘more strategic and more efficient, with stronger links and alignment between relevant eu policy areas and between the external and internal dimensions of those policies’ (eu, 2011b, p. 3). having placed the protection of migrants’ rights at the very core of the policy, the gamm was structured around four thematic priorities crosscut by human rights: (1) legal migration and mobility; (2) the fight against irregular migration; (3) the promotion of international protection and the enhancement of the external dimension of asylum policy; and (4) the migration-development nexus (ec, 2011b). again, the gamm extended available protection through the inclusion of human rights in the strategy towards third countries, and by multiplying the categories eligible for protection. the gamm protected not only refugees and asylum seekers, but also other vulnerable groups such as displaced victims and vulnerable migrants, including nonaccompanied children, stranded migrants, forced displaced people, victims of trafficking or migrants, regardless of their legal status (zetter 2014). however, more than 1,500 people drowned or went missing while attempting to cross the mediterranean that year. the year 2011 was one of the deadliest years for the mediterranean region until then, according to the unhcr. the gamm exemplified how human rights’ protection could be extended to other categories, and showed how the modern immunity language of the protection of life and production of death permeates the eu’s migration policy. the gamm included as the transversal role of human rights in foreign policy, specifying that ‘the dialogue and cooperation with partners should strive to protect the human rights of all migrants throughout their migration process’. ‘the human rights of migrants are a cross-cutting dimension, of relevance to all four pillars in the gamm. special attention should be paid to protecting and empowering vulnerable migrants, such as unaccompanied minors, asylum-seekers, stateless persons and victims of trafficking. this is also often a priority for migrant source countries. respect for the charter of fundamental rights of the eu is a key component of eu policies on migration. the impact on fundamental rights of initiatives taken in the context of the gamm must be thoroughly assessed’. (ec, 2011b, p. 16). potential actions targeting migration issues at the place of origin and during transit should include elements of prevention and prosecution of ‘human rights violations 18 see the unhcr’s update of june 2011 as an example of the numbers of displaced people in as a consequence of the arab spring: https://www.unhcr.org/4df9cde49.html https://www.unhcr.org/4df9cde49.html daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 67 committed against migrants’ and ‘measures should be taken to ensure decent living conditions for migrants in reception centres and to avoid arbitrary or indefinite detention’ (eu, 2011, p. 16). despite the continuous references made in gamm to human rights’ protection, political turmoil and violence within north african countries during and after the arab springs severely increased human rights violations and migrants’ deaths at eu borders. since early 2013, the egyptian police have reportedly detained more than 6,800 persons fleeing syria (kingsley, 2014) and it was reported that ‘egyptian soldiers fired on smuggling vessels heading for europe … packed with palestinians fleeing the destruction in gaza wrought by israeli bombing’ (grange, flynn, 2014). lastly, in february 2014 at least 14 people died after the spanish guardia civil shot tear gas at migrants in the water as they attempted to reach ceuta by sea. one disappeared, and 23 were refouled to morocco without any legal procedures being followed.19 again, no one was held responsible, and death was present at eu borders. in 2015, a shipwreck in which at least 800 people died only 110 km away from the italian coasts (the guardian, 2015) was presented again as an inevitable tragedy void of any political responsibility. eu institutions again portrayed themselves as being responsible for the protection of those migrants who risked their lives in the mediterranean. the european council released a special statement on 23 april 2015 aimed at preventing the loss of lives at sea and to tackle the root causes of the human emergency in cooperation with the countries of origin and transit.20 the commission issued the european agenda on migration (ec, 2015) which provided that the immediate imperative was ‘the duty to protect those in need’. a significant section of the document was devoted to ‘europe's duty to protect’. the european agenda on migration identified ‘four pillars to manage migration better’, gearing efforts across the four pillars towards containing unauthorised movement, reinforcing return and readmission, enhancing border controls and ‘support[ing] third countries to develop their own solutions to better manage their borders’. among the immediate measures to be taken was developing a common approach for granting protection to displaced persons in need of protection (ec, 2015, p. 4).21 the eu clearly has a duty to contribute to help ‘displaced persons in clear need of international protection’ always ‘working in partnership with third countries to tackle migration upstream’ (ec, 2015, p. 4). despite the general references to and frameworks for human rights’ protection, different ngos and international bodies have provided evidence of the violation of migrants’ rights at eu borders. human rights violations are not only committed on land but also at sea through blocking practices by authorities that cause deaths, pushbacks, or 19 see cear, caso tarajal https://www.cear.es/caso-tarajal/ 20 special meeting of the european council, 23 april 2015 – statement https://www.consilium.europa.eu/en/ press/press-releases/2015/04/23/special-euco-statement/ 21 categorisation for those that are not in need also involves measures to manage migration. for ‘those not in need of protection’, the eam pointed to frontex to help member states by coordinating the return of irregular migrants’ (eu, 2015, p. 6). https://www.cear.es/caso-tarajal https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement https://www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 68 the denial of access to land. specifically, in 2017 human rights watch reported violation of migrants’ rights and pointed at the need for collaboration with morocco (human rights watch, 2014, 2016). refoulements of black migrants at the southern spanish border (cear, 2015, 2017) are a systematic practice that has been denounced by several local organisations and ngos,22 as they pose a risk to life through forced displacement, abuses and illegal detentions and deportations (gadem 2018, 2018b). amnesty international (2018) also published reports referring to the ‘cruel european migration policies’ concerning the situation in libya in 2018. in the same year, and also in libya, human rights watch referred to eu policies as a ‘contribution to the abuse of migrants’ (human rights watch, 2019). therefore, the incorporation of human rights’ protection into external action, and the proliferation of protection categories and vulnerable groups have characterised eu migration policy developments in recent years. however, claiming to protect everyone everywhere can result in protecting nobody nowhere (moreno-lax, lemberg-pedersen, 2019). up to now, the contradiction between the proliferation of human rights protection and the production of migrants’ deaths at borders has been identified as constitutive of eu’s migration policies. in the following section, regional protection programmes will be used to illustrate an example of how immunitas is present within eu’s migration policy and how the protection of life serve legitimises the externalization of migration policies. 4. the eu’s regional protection programmes: an example of immunity. regional protection programmes are a paradigmatic example of the use of human rights’ protection as a concealed aim to legitimise contention measures in third countries. protection serves to legitimise intervention, which in terms of esposito, follows an immunitarian logic. protection beyond borders is presented as a way of migration management, based on the understanding that enhancing areas of protection will contain migration while at the same time protecting life. the protection of life might neutralise threats to the community. these programmes are examples of the metaphoric representation of the eu as a political body that needs to be protected and finds in human rights protection a legitimating element to keep itself safe. as mentioned above, in 2000 the unhcr instigated a round of global consultations on international protection in order to ‘engage states and other partners in a broad-ranging dialogue on refugee protection’. it aimed ‘to explore how best to revitalise the existing international protection regime while ensuring its flexibility to address new problems’ (unhcr, 2002). the global consultation process among governments, intergovernmental and non-governmental organisations, and refugee experts gave place to the adoption of the ‘agenda for protection’ (unhcr, 2002). the agenda built on the geneva convention, which was reflected in the reference to a ‘convention plus’ approach. the ‘convention plus’ reinforced protection through durable solutions for 22 see, for example, iridia, prodein, apdha, caminando fronteras, cear on pushbacks, deportation, detention conditions, asylum access, abuse, discrimination. daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 69 displaced people by implementing return, resettlement and voluntary repatriation or integration. the unhcr encouraged states to implement the geneva convention of refugees in order to revitalise the protection framework worldwide, including in the eu member states. in europe, the thessaloniki eu council conclusions (2004) adhered to the ideas of the agenda for protection and specified the need to explore all possible ways of making the entry of people in need of protection ‘orderly and managed’. the conclusions invited the commission to ‘examine ways and means to enhance the protection capacity of regions of origin with a view to presenting to the council, before june 2004, a comprehensive report suggesting measures to be taken, including legal implications’: ‘as part of this process, the european council notes that a number of member states plan to explore ways of providing better protection for the refugees in their region of origin, in conjunction with the unhcr. this work will be carried out in full partnership with the countries concerned on the basis of recommendations from the unhcr’ (coeu 2003) in november 2004 (coeu, 2004) the council encouraged ‘the commission to develop eu-regional protection programmes in partnership with the third countries concerned and in close consultation and cooperation with the unhcr’. following this, in september 2005, the commission defined regional protection programmes (rpps) (ec, 2005) in a communication specifically entitled ‘regional protection programmes’, which would be included in the gam in december 2005. these programmes were intended to ‘be brought forward with the intention of enhancing the protection capacity of the regions involved and better protecting the refugee population there by providing durable solutions. these programmes will incorporate a variety of relevant instruments, primarily focused on capacity building, and include a joint resettlement programme for those member states which may be ready to participate in such a programme on a voluntary basis. with regard to countries of transit, the european council emphasised the need for intensified cooperation and capacity building, both on the southern and eastern borders of the eu to enable those countries better to manage migration and to provide adequate protection for refugees. (ec, 2005) the final communication on rpps (ec, 2005) stipulated two regional priorities for creating regions of protection: western newly independent states and the region of the great lakes in sub-saharan africa, while it defined other potential areas to be developed in the future such as north africa, the horn of africa and afghanistan. following this logic of human rights’ protection, the gam similarly encouraged the creation of regional protection programmes (ec, 2005) in countries of transit and origin. the gam called on international bodies such as the unhcr to develop protection capacities in non-eu countries. eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 70 ‘regional protection programme should be situation specific and protection oriented. it should draw on a range of measures, such as assistance to third countries to comply with international obligations under the geneva convention and other relevant international instruments, to enhance protection capacity, better access to registration and local integration and assistance for improving the local infrastructure and migration management. the development and the implementation of these programmes should be taken forward in close cooperation with unhcr and, where relevant, other international organisations. possible eu and other funding sources should be indicated. coherence with the community approach towards the region and third countries concerned should be assured’ (ec, 2005b, paragraph 3) in the same immunity logic of applying protection from threats that are trying to invade the body, the protection mechanism aims to find sources of risk in order to neutralise them. measures are then justified and legitimised thorough the need to provide protection everywhere. the gamm (ec, 2011b, p. 5) reiterated the importance of rpps, by re-affirming the idea that ‘the eu should increase cooperation with relevant non-eu countries in order to strengthen their asylum systems and national asylum legislation and to ensure compliance with international standards. under its third pillar, entitled ‘promoting international protection and enhancing the external dimension of asylum policy’ (ec, 2011b, p. 17), the member states consider that the eu should support third countries to ensure a ‘higher standard of international protection for asylum-seekers and displaced people who remain in the region of origin of conflicts or persecution’ (ec, 2011b, p. 17). the gamm specifically mentioned that ‘asylum policy frameworks and protection capacity in non-eu countries must be strengthened’ and that ‘this is to be achieved by means of more extensive cooperation with non-eu countries, inter alia, under regional protection programmes’. relying on the a human rights-based approach adopted in previous rpps, regional development and protection programmes (rdpp) added a stronger emphasis on development23 in order ‘to better understand, plan, and mitigate the impact of the forced displacement of syrian refugees on host communities’.24 rdpps are a multi-donor european initiative intrinsically linked to human rights’ protection and specifically to the unhcr’s ‘durable solutions’ (voluntary repatriation, resettlement to third country, and local integration in country of asylum). they were progressively implemented in different regions and led by different member states. in 2014, the rdpp for the middle east was led by denmark as a response to syrian displacement and ‘to ensure that refugees and host populations … access their rights’. in 2015, the rdpps for the north african (na) region and the horn of africa were set up as an important part of the eam. in 2016, the na rdpp, led by the italian home office ministry and funded by the asylum migration and integration fund (amif), was established for the period 2016-2020, covering supporting activities in algeria, chad, egypt, libya, mauritania, morocco, niger and 23 for further information, see reports at https://rdpp-me.org/rdpp-reports 24 ibid. https://rdpp-me.org/rdpp-reports daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 71 tunisia on registration, refugee status determination, durable solutions, child protection, direct assistance activities, capacity building and awareness activities.25 the rdpp for the horn of africa,26 was led by the netherlands in order ‘to improve protection and enhance development prospects of refugees, internally displaced people and local communities, aiming to offer an alternative to risks of irregular migration‘27 and funded by the eu trust fund for africa. with a view to provide long-term solutions, ‘their aim is to assist third countries to address the protection and developmental needs of migrants, refugees and asylum seekers, support the efforts of the migrant and refugee hosting communities, and build capacities of the authorities ‘.28 together, rpps and rdpps are paradigmatic examples of the use of human rights’ protection as a concealed aim to legitimise intervention on migration issues in third countries. they implement protection as a means of controlling migration, as an immunity mechanism for the prevention of migrant threats. protection of different vulnerable groups, human rights and, in general, enhancing protection legitimises intervention in third countries. the protection of life is the stronger legitimation for any measure. paradoxically, violence and therefore the production of death at eu borders is everyday more and more common. in addition, rdpps show the metaphorical self-perception of the eu as a political body that needs to be protected from external threats, and believes that migration is an illness to be cured. despite the generalised framework of human rights and the proliferation of categories of people in need of protection, there is no evidence of the effectiveness of the protection on migrants’ rights, because protection schemes ultimately kill those it claims to protect, in the approach to life and death that is inherent to modern western politics. rpp and rdpp serve as paradigmatic examples of how protection and human rights legitimate the intervention in migration issues in third countries. 5. conclusions biopolitics follows in the wake of the modern transition from the right of sovereignty ‘to take life or let live’ to the right ‘to make life and to let die’. a biopolitical paradigm brings this dichotomy to the centre of the analysis. foucault’s analysis of the relationship between life and politics focused on the intrinsic relationship between life, death and governance. according to foucault, biopolitics is the main characteristic of modern politics. italian philosophers like giorgio agamben, toni negri or roberto esposito have revisited biopolitics from different perspectives, giving place to the socalled italian theory. 25 rdpp na fact sheet https://ec.europa.eu/home-affairs/sites/homeaffairs/files/docs/publications/bls1 93 46 _factsheet_general.pdf 26 it refers to eritrea, somalia and south sudan. 27 rdpp for horn of africa https://www.khartoumprocess.net/operations/31-regional-developmentprotection-programme-rdpp-horn-of-africa 28 this website was set up during conversations with the manager of the rdpp in north africa. there was almost no public information about these programmes. in april 2020 the ec created this page to provide further information on regional development and protection programmes https://ec.europa.eu/home-affairs/ news/20200427_regional-development-protection-programmes-north-africa-projects-implementation_en https://ec.europa.eu/home-affairs/sites/homeaffairs/files/docs/publications/bls1​93​46​_factsheet_general.pdf https://ec.europa.eu/home-affairs/sites/homeaffairs/files/docs/publications/bls1​93​46​_factsheet_general.pdf https://www.khartoumprocess.net/operations/31-regional-development-protection-programme-rdpp-horn-of-africa https://www.khartoumprocess.net/operations/31-regional-development-protection-programme-rdpp-horn-of-africa https://ec.europa.eu/home-affairs/news/20200427_regional-development-protection-programmes-north-africa-projects-implementation_en https://ec.europa.eu/home-affairs/news/20200427_regional-development-protection-programmes-north-africa-projects-implementation_en eu migration policy and migrant human rights: the protection and negation of life at eu borders the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 72 the italian theory places the biopolitical contradiction at the core of theoretical discussions about migration. this results in two interpretations. a positive one relates to toni negri’s work and privileges life and migrant agency over death. researchers following negri have established a specific way of thinking radically about migration and the autonomy of migration. the second interpretation gives priority to the totalising negative reading of agamben, known as thanatopolitics. neither of these schools of thought have succeeded in producing a consistent explanation of the relationship between the two consequences of approaching migration from a biopolitical paradigm. roberto esposito coined the concept of immunitas as a theoretical solution to the dichotomy that articulated the two possible theoretical drifts of biopolitics. the concept of immunitas allows to radically look at borders and migration policies and attempts to bridge the gap between the two existing trends in migration studies. esposito suggests that immunitas is the main constitutive element of modern western politics—and not biopolitics—and presents the immunity-based negation of life as the logical consequence of the protection of life. despite the vast critical potential of esposito’s theoretical tenets, few researchers have applied his ideas to the study of human rights in migration as an immunity-based legitimising element and his theoretical links to the idea of communitas. esposito’s philosophy provides useful and radical tools for the interpretation of migration policies. the biopolitical contradiction is embedded in the eu’s migration policy and externalised in relationships to third countries. despite the eu’s protection framework and the constant presence of human rights elements within migration policy, migrant deaths occur daily at eu borders. this article aims to understand the relationship between the protection of life, incorporated into the eu’s protection framework and specifically into migration policy, and the production of migrants’ deaths at its borders. relying on esposito’s philosophy, and on the analysis of three main policy documents and some rdpps, this article has suggested that this contradiction is not only possible but inherent to eu migration policy. it has also proposed the application of the concept of immunitas to the study of migration in order to approach the use of human rights’ protection within eu migration policy (gam; gamm and eam) as an element of the legitimation of power that serves to unlock liberal constraints to control migration in third countries. esposito facilitates an approach to migration politics as an environment for the re-production of a biopolitical tendency of protecting life while delivering death to certain bodies. this article has illustrated that the eu’s generalisation of human rights’ protection has exactly the opposite effect than it claims: the negation of (certain) lives. it highlighted the metaphorical self-understanding of europe itself that serves to blur the underpinning logics of governance, coloniality and racism. esposito allows us to look at the eu’s assumption of a loss of obligations towards the ‘others’ as a mechanism that unveils a racist assumption that migrants do not belong to the community, but are a kind of ‘disease’ to be neutralised. thus, using immunitas as a theoretical tool, serves to facilitate a radical daniela lo coco the age of human rights journal, 16 (june 2021) pp. 54-80 issn: 2340-9592 doi: 10.17561/tahrj.v16.6277 73 understanding of the contradiction present in eu migration policies between the protection of life and the production of death and to highlight the fact that human rights’ protection legitimises migrants’ repression at eu borders and third countries, following colonial logics. finally, this article has shown that immunitas is a useful concept to look at migrant deaths as a consequence of an inherent characteristic in the relationship between life and politics in modern western migration governance, which protects certain lives while bringing death to others. it has done so by using rpps and rdpps as paradigmatic examples of how human rights can be used to legitimise migration control in third countries within eu migration policy. the radical potential of 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(2011). 'foucault and frontiers: notes on the birth of the humanitarian border' in governmentality: current issues and future challenges, bröckling, u., krasmann, s., and lemke, t. (2011). new york: routledge, pp. 138164. weyzman, e. 2017, the least of all possible evils. a short history of humanitarian violence, verso, london new york. zetter, r. (2014). forced migrants: a state of the art report of concepts, challenges and ways forward. refugees studies center. oxford university. https://www. rsc.ox.ac.uk/publications/protecting-forced-migrants-a-state-of-the-art-report-ofconcepts-challenges-and-ways-forward received: december 12th 2021 accepted: march 1st 2021 https://www.rsc.ox.ac.uk/publications/protecting-forced-migrants-a-state-of-the-art-report-of-concepts-challenges-and-ways-forward https://www.rsc.ox.ac.uk/publications/protecting-forced-migrants-a-state-of-the-art-report-of-concepts-challenges-and-ways-forward https://www.rsc.ox.ac.uk/publications/protecting-forced-migrants-a-state-of-the-art-report-of-concepts-challenges-and-ways-forward eu migration policy and migrant human rights: the protection and negation of life at eu borders abstract 1. introduction 2. biopolitics and immunitas. italian theory applied to the study of migration. 2.1 migration policy as an immunity mechanism: the protection of life as the main criterion for the 3. human rights and eu’s migration policy: the seed for immunity 3.1. the protection of life and production of death as constitutive elements of the eu’s migration 4. the eu’s regional protection programmes: an example of immunity 5. conclusions references eu, trading and human rights: consistent framework? the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 244 eu, trading and human rights: consistent framework? carolina jiménez sánchez1 abstract: the relationship between european union and international human rights law has not always been close. the global projection of the eu, specially, its interest in becoming a leader in international trade, is facing its negative impact in some territories, specially those affected by human rights violation or negation of fundamental rules of international law, such as ius cogens self-determination of people. this paper will examine to what extend the practice of the european union trading with occupying and administrative powers in some territories could jeopardise its compliance with its own values and principles. keywords: human rights, trading, self-determination, european union, occupied territories, gsp. summary: 1. introduction. 2. protecting human rights while trading?. 3. challengues and threads trading in occupied territories. 3.1. human rights in western sahara and trading with the occupying power. 4. palestine products in the eu: a thread to human rights?. 5. conclusion. 1. introduction this paper focuses on examining the current implications of the applicable rules and the practice developed by the european union with respect to territories whose human rights are specially vulnerable. those include non-self governing territories or territories with special or disputed status, but also an overview to the legal framework around trade and human rights in the eu. its special relationship with the due protection of the human rights of these populations and their controversial alignment with the commercial relation need to be addressed, due to the recent development in this area regarding the case of polisario front before de cjeu. there is a growing academic interest in the external action of the european union. the desired leadership of the union in the mediation of international conflicts makes it necessary to focus on its practice and its compliance with human rights. in any case, what happens in its relations with other territories, specifically with “disputed territories”, must be analyzed from the point of view of its essential principles and values. as kassoti shows, “the eu's practice in relation to the conclusion of trade agreements covering occupied territories has increasingly challenged the narrative of 'normative power europe'”. likewise, it is necessary to underline that the carrying out of studies of this type have focused fundamentally on examining the practice of the european union in a specific 1 lecturer in international law and international relations, university of málaga, spain (carolina@uma.es). this paper has been produced during a stay in the t.m.c asser intituut as a cleer fellowship. mailto:carolina%40uma.es?subject= carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 245 conflict, so that the comparative analysis will yield new elements of analysis that will undoubtedly provide particular relevance in the examination of conflicts separately. territorial conflicts are particularly complex and their resolution requires a renewed perspective that continues to rely on the application of imperative norms of international law, such as the self-determination of peoples and the necessary respect of human rights law. it is not urgent to give the concept of self-determination a new meaning, but precisely to execute its essential meaning, with mechanisms for the peaceful resolution of conflicts of our time. this is where regional integration organizations become increasingly important, as their diplomatic, commercial and economic relations have a direct impact on the survival of these conflicts and also on their eventual solution. the european union is willing to became a human rights world-leader, as we as to continue developing its essential nature of commercial power. nevertheless, trading with vulnerable territories imply some remarks on the agreements, such as human rights clauses and sustainable development concerns. the articles focuses in the legal framework governing trade and human rights in the eu, as well as the international legal framework governing those vulnerable territories, arguing if its possible to reconcile these two objetives. 2. protecting human rights while trading? according to articles 3 (5) and 21 teu the protection of human rights in the context of trade agreements is relevant if we consider also the inspiring principles and values of the european union2. moreover, a key rule in european union law is constituted by the charter of fundamental rights of the european union and the principles for conducting agreements with third-party states always in the respect of the human rights (human rights clause) (gómez cosarnau, 2003 & der-chin horng 2003) (fierro elena and eeckhout piet, 2006). article 21 of the treaty on european union states: “the union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human 2 article 3 (5) teu sets out: (…) “the union shall uphold and promote its values and interests and contribute to the protection of its citizens. it shall contribute to peace, security, the sustainable development of the earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the united nations charter”. article 21.1 teu states: “the union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the united nations charter and international law”. eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 246 rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the united nations charter and international law ”. this principle assumes that the eu must guarantee consistency and effectiveness in its foreign relations practice. this implies, not only a formal position based on general statements, but an active role in defending its key principles for foreign action. which should entail, where appropriate, the application of countermeasures and other actions when necessary. at the european union level, this should be equivalent to the imposition of sanctions and restrictive measures that, throughout this study, will be explored in their existence or nonexistence. as an instrument of this policy we have to underline the importance of the guidelines on human rights to be used in dialogues with third countries. according to this instrument the eu should perform a real “human rights mainstreaming”, integrating human rights and democratisation in all aspects of external action, where the first step os to decide to iniciate a human-rights specific dialogue with a third country, having into account some preliminary remarks. some decades before, in the first non-binding appearances of the human rights clause in international treaties with third states, such as lomé i and lomé ii, the conditions imposed by the eu were not later an obstacle to continue with commercial relations or aid to the development, tending to become legally binding later through the so-called “bulgarian clause”3. likewise, we must highlight the evolution of the practice of the european communities with the so-called generalized scheme of preferences for imports from developing countries (gsp), as well as the technical and financial assistance regulations developed. development aid has been precisely one of the most important effects in the application of the so-called “human rights clause”. a key nexus is stablished between development aid and trade, with the limits assimilated by the aforementioned clause. in countries such as zimbabwe or haiti, this aid has been suspended due to the human rights clause. in the case of haiti, through council regulation no. 1603, of june 24, 1993, regarding the imposition of an embargo on certain commercial operations between the european community and the latter, which had a fluctuating path with various modifications supervening (garcía junior, 2013). with regard to zimbabwe, the common position of the council of 18 february 2002 on the adoption of restrictive measures should be highlighted. in this, sanctions are imposed on the government of the country and consultations for trade agreement were abruptly concluded. the reason was the concern “about the laws recently approved in zimbabwe, which, if applied, would seriously undermine the right to freedom of expression, assembly and association, in particular the law of public order and security and the law of modification of general laws (since both violate the norms and conditions for free and fair 3 also known as the “negative conditionality clause”, it has been used since 1995 in all international agreements concluded between the european union and third states and implies their suspension if there is a serious violation of essential elements, including human rights. carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 247 elections, agreed by the sadc parliamentarians in march 2001), as well as the legislation proposed to regulate the media”4. it thus highlights from past practice that the sole concern arising from the lack of protection of human rights has been sufficient cause to disrupt the eu's trade and diplomatic relations with certain states. another example of this trend is cuba and its fluctuating diplomatic relations with the union due to the lack of guarantees on the protection of human rights, which would occur from its common position of 1996. this has hindered their relations until the arrival of the political dialogue and cooperation agreement (adpc) in 2016. despite the complex relationship that the island currently maintains with the united states, and the difficulties that the tandem with venezuela is going through, the commitment of the due to a change in policies, the eu leads to the consolidation of economic relations that, despite the common position, had been taking place with european companies (mainly spanish) for decades. however, when the practice of the european union with some of its priority partners is examined, human rights have not been considered as highly as in other territories, given the risk of jeopardizing bilateral relations. suffice it to consider the eu's agreements with states that continuously violate human rights, such as the relations it has maintained with the gcc (gulf cooperation council), whose member states include saudi arabia. the gcc benefited from a generalised scheme of preferences until 2014 (ayuso, 2017). the human rights clause requires the parties to respect democratic principles and human rights provisions. more recently, the eu has also include the necessity to include labour and environmental standards, as a kind of “sustainable development” considerations. regarding the eu human rights charter, we cannot consider that its scope is universal (lenaerts, 2012), and the entire debate around this issue would need a separate analysis. but the coherence principle informs to do not contradict the own actions in external action. even the article 2 teu implies the promotion of human rights ad intra and ad extra, and article 21.2 establishes consolidation and support for democracy, the rule of law, the human rights and the principles of international law as objetictives in its foreign action. the human rights and democracy eu strategic framework and eu action plan (11417/12, 25 june 2012), stated that “the eu will promote human rights in all areas of its external action without exception. in particular, it will integrate the promotion of human rights into trade (…)”, establishing a material obligation for the eu when affirms “the eu will place human rights at the centre of its relations with all third countries, including its strategic partners. while firmly based on universal norms, the eu’s policy on human rights will be carefully designed for the circumstances of each country, in this light, the eu will continue to deepen its human rights dialogues and consultations with partner countries and will aim to ensure that these dialogues lead to results”5. 4 council common position of 18 february 2002 concerning restrictive measures against zimbabwe oj l 50, 21.2.2002, 5 eu strategic framework and action plan on human rights and democracy, luxembourg, 25 june 2012 11855/12. eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 248 the eu common commercial policy is the perfect area to develop the ad extra human rights provisions and principles explained. the eu has currently used three kind of tools to make it possible: 1) bilateral free trade agreements 2) the regulation of certain product exports 3) the granting of generalized preferences to certain countries so far, the eu has conducted over 40 trade agreements in more than 80 different countries6. the generalised scheme of preferences (gsp) try to offer preferential market access to lower and middle-icome countries, besides the bilateral agreements continue to included the so-called “human rights clause” since the 90´s of the last century. respect for human rights would constitute an essential element of the agreement and its lack of observance entailed the adoption of measures of different kinds that, ultimately, term, could suppose the termination of the same. the human rights clause is primarily included in political framework agreements, which should be referred to in subsequent trade agreements. free trade agreements or more comprehensive association agreements with no framework agreement may include the human rights clause alongside the trade or cooperation provisions (wahlqvist, 2021, 23). to be added is the eu council regulation 2820/98, whose article 22 establishes theat the arrangements provided by the gsp may at any time be temporarily withdrawn in whole or in part, in circumstances such as the practice of any form of slavery, the export of godds made by prison labour or manifest cases of infringement of the objectives of international conventions7, further developed by the eu council regulation 2502/20018. 6 https://trade.ec.europa.eu/access-to-markets/en/non-eu-markets. 7 council regulation (ec) no 2820/98 of 21 december 1998 applying a multiannual scheme of generalised tariff preferences for the period 1 july 1999 to 31 december 2001, official journal l 357 , 30/12/1998 p. 0001 – 0112. the following reason are included: (a) practice of any form of slavery or forced labour as defined in the geneva conventions of 25 september 1926 and 7 september 1956 and international labour organisation conventions no 29 and no 105; (b) export of goods made by prison labour; (c) manifest shortcomings in customs controls on export or transit of drugs (illicit substances or precursors), or failure to comply with international conventions on money laundering; (d) fraud or failure to provide administrative cooperation as required for the verification of certificates of origin form a; (e) in manifest cases of unfair trading practices on the part of a beneficiary country. the withdrawal shall be in full compliance with the wto rules; (f) manifest cases of infringement of the objectives of international conventions such as nafo, neafc, iccat and nasco concerning the conservation and management of fishery resources. temporary withdrawal shall not be automatic, but shall follow the procedural requirements laid down in the following articles, including article 26(3). 8 commission regulation (ec) no 2535/2001 of 14 december 2001 laying down detailed rules for applying council regulation (ec) no 1255/1999 as regards the import arrangements for milk and milk products and opening tariff quotas official journal l 341 , 22/12/2001 p. 0029 0069 https://trade.ec.europa.eu/access-to-markets/en/non-eu-markets carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 249 the council modified the regime and approved, on june 27, 2005, the eu regulation 980/2005 which was configured as a new framework9. the objective of this reform was to provide greater objectivity in the granting and withdrawal of gsp. this regulation eliminated the difference existing so far between special incentive regimes for the protection of labor rights and for the protection of the environment and created, outside the general regime, a special regime to stimulate sustainable development and governance (janer torrens, 2017). article 16 of this regulation included the temporarily withdrawal of gsp for all or part of the products of a beneficiary country if there was a serious and systematic violation of the principles established in the sixteen conventions on human rights and labor rights. recently, gsp in respect of certain products has been withdrawn temporarily to cambodia, due to systematic and serious violation of principle laid down in the core human and labour rights un/ilo conventions10. subsequent ammendents to the gsp regulation continued with the eu council regulation 978/201211, adapting the tool to the new lisbon treaty system. still, the latest modification were introduced in 202112 , including uzbekistan in the gsp. regarding the second tool, the eu limited trade implying some products that might contribute to severe human rights violation trhough the regulation 1236/200513. even thoug, the restraint of the regulation is only referred to “goods that could be used for the purpose of capital punishment or for the purpose of torture and other cruel, degrading or inhuman treatment or punishment, and in related technical assistance”. the eu requires express authorisation when these goods might have another practical use than the referred. decision on these kind of authorisation need to be taken in a caee-by-case basis. in the same way, we have to consider the common position 2008/944/cfsp14, banning the technology and military equipment export licenses to countries that could use them for of internal repression violating the population human rights. all these mechanisms try to contribute to human rights promotion while trading, rejecting at some extend the responsibility of the eu in some severe violations of human rights. 9 council regulation (ec) no 980/2005 of 27 june 2005 applying a scheme of generalised tariff preferences. oj l 169, 30.6.2005, p. 1–43 10 commission delegated regulation (eu) 2020/550 of 12 february 2020 amending annexes ii and iv to regulation (eu) no 978/2012 of the european parliament and of the council as regards the temporary withdrawal of the arrangements referred to in article 1(2) of regulation (eu) no 978/2012 in respect of certain products originating in the kingdom of cambodia, c/2020/673. 11 regulation (eu) no 978/2012 of the european parliament and of the council of 25 october 2012 applying a scheme of generalised tariff preferences and repealing council regulation (ec) no 732/2008. 12 https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a02012r0978-20210410. 13 council regulation (ec) no 1236/2005 of 27 june 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. 14 council common position 2008/944/cfsp of 8 december 2008 defining common rules governing control of exports of military technology and equipment. https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a02012r0978-20210410 eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 250 nevertheless, the difficulty lies in the interpretation of what can be considered a human right violation. standarts introduced in the eu council regulation 980/2015 help to clarify what would be an obstacle to human rights promotion, improving the quality of the legal framework. 3. challengues and threads trading in occupied territories in the special context of non-self-governing territories, the european union, as a third party, has the obligation not to contribute to the occupation and respect the will of the people. this would imply trading. the aforemention action plan is more than clear regarding the european neighbourhood policy, claiming that “the eu will step up its effort to make best use of the human rights clause in political framework agreements with third countries”. the action plan and the hole sense of the european union law makes unclear and inconsistent the practice developed in some territories, including western sahara, as the last colony in africa, or palestine. it must be remembered that the international court of justice, in its advisory opinion on the legal consequences of the construction of a wall in the occupied palestinian territory (2004) stated that all states are under the obligation of not recognizing the illegal situation resulting from the wall construction, “they are also under an obligation not to render aid or assistance in maintaining the situation created by such construction”. in addition, the opinion declared that the self-defence did not fit as an argument to justify the construction of the wall . also, in accordance with what was already indicated by the court in the advisory opinion on the legal consequences that the continuation of the presence of south africa has for the states in namibia, "israel is bound to comply with its obligation to respect the right of the palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. " in essence, the construction of the wall entailed the violation of multiple norms of human rights and international humanitarian law, which resulted in a clear responsibility of the state (israel) for illegal acts that the court urged to repair, as evidenced in the opinion “the construction of the wall in the occupied palestinian territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the court finds further that israel has the obligation to make reparation for the damage caused to al1 the natural or legal person concerned ”. the international court of justice sustains that the states have the obligation, in addition to the aforementioned non-recognition of sovereignty in the occupied territory, of not helping to maintain the situation created with the construction of the wall, in addition to recognizing that israel has violated rules of international law that all states may be interested in protecting, as already stated in the barcelona traction case . besides, the exploitation of the natural resources of the territory of western sahara and other non-self-governing territories might be carried out to the detriment of its inhabitants and may infringe their human rights., and that must be included in the regulation of gsp as an example. carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 251 even more when the exploitation of natural resources is conducted without consent and is not improving the situations of local people, affecting ius cogens rules as the selfdetermination of people. as kassoti pointed out “the eu’s practice in relation to the conclusion of trade agreements covering occupied territories has increasingly challenged the narrative of ‘normative power europe’ (kassoti, 2017) and the practice not solely involves western sahara. if one of the biggest challenges of international law today is its fragmentation (koskeniemi and leino, 2002), this issue also affects non-self-governing territories. international humanitarian law provides key norms that should govern the behaviour of states when we talk about occupied territories, which for the purposes of this article are understood as those that have been illegally annexed (wrange, 2015). human rights and international criminal law are also central to protecting these peoples not yet constituted in states, from the expansive force of an international community in expansion. the imperatives of international economic law extend not only to the states, but of the international organizations, over some people pending to confirm their status in the international community. the natural resources of these peoples are valuable elements for international macro-institutions. in the international community is needed to attend to the international rules and principles that make the status of non-self-governing territories "special" and "untouchable" since the time of decolonization and landmark ungar 1514 (xv). 3.1. human rights in western sahara and trading with the occupying power european union has emerged as another concerned party in wester sahara conflict, unwilling to become involved but committed to develop a commercial and political relationship with his principal partner in the mena region, morocco. this controversial and polarizing relationship could jeopardize the eu leading principles in its external action, (i.e., human rights and the respect of the self-determination of people). this procedure could have an adverse effect, thereby contravening rather than reinforcing the organization's values and previous practice in the eu concerning nonself-governing territories. the eu must ensure consistency and effectiveness in its external policy, which implies not only statements and declarations but an active role defending its key external principles. it shall mean countermeasures and other actions being applied (wrange, 2017). the human rights of sahrawi people are being serioursly contested in the territory occupied by morocco. as pointed out by numerous human rights activits and the last report of the un secretary general: “ohchr remained concerned about the continued trend of restrictions on the rights to freedom of expression, peaceful assembly and association in western sahara by moroccan authorities. during the reporting period, ohchr received reports of harassment, arbitrary arrest and sentencing of journalists, lawyers and human rights defenders also received several reports about torture, ill-treatment and medical neglect in moroccan prisons, with civil society organizations and lawyers advocating for eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 252 the release during the covid-19 pandemic of sahrawi prisoners such as the gdeim izik group and a group of students”15. this could be an key element to redefine the commercial policy developed with morocco, in accordance with the allegued human rights mainstreaming in external action. the relations between the eu and morocco have had several phases and trade agreements since in 2000 the euro-mediterranean agreement16 was adopted, establishing a greater approach in commercial relations, especially agricultural. in the development of this agreement, in 2005, a plan of action was accorded and, subsequently, the agreement for the liberalization of agricultural products and fishing by-products was signed in 201217. as a result of this agreement, in the same year, commission implementing regulation (eu) no. 812/2012 was adopted, modifying council regulation (ec) no. 747/2001 regarding quotas and tariffs for certain agricultural products and processed agricultural products, originating in morocco. regarding the western sahara cases before eu courts (c-104/16 and c-266/16), the elements of analysis are ground-breaking (van der loo, 2018). it is hugely relevant that in both sentences the courts of the european union interpreted the terms of the agreement differently. while the judgment by the gteu of 2015 understands the need to partially nullify the agreement by moving its object beyond moroccan sovereignty, in the 2018 ruling it is assumed that the territory of western sahara is automatically outside the scope of the agreement, without having mediated a check on its implementation. this is amply demonstrated by the fact that the council in 2017 authorised the commission to re-negotiate a new agreement meeting these new circumstances18. in fact, although in trading with the kingdom of morocco has become clear that the exclusion of western sahara territory has not been made categorically, the court is precise in stating the interpretation: “the partnership agreement and the 2013 protocol will be interpreted in the sense that the waters adjacent to the territory of western sahara are not 15 situation concerning western sahara, report of the secretary general. situation concerning western sahara. 23 september 2020. s/2020/938, párr. 69. 16 euro-mediterranean agreement establishing an association between the european communities and their member states, of the one part, and the kingdom of morocco, of the other part, oj [2000] l70/2. 17 2012. /497/eu: council decision of 8 march 2012 on the conclusion of an agreement in the form of an exchange of letters between the european union and the kingdom of morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of protocols 1, 2 and 3 and their annexes and amendments to the euro-mediterranean agreement establishing an association between the european communities and their member states, of the one part, and the kingdom of morocco, of the other part. 18 recommendation for a council decision authorising the opening of negotiations on the adaptation of protocols to the agreement between the european union and the kingdom of morocco (st 9093 2017 init 12) may 2017. carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 253 included in the respective territorial areas of application of the collaboration agreement and the 2013 protocol”. thus, the judgment in case c-266/16 clarifies the interpretation that must be given to the territorial scope of the agreement, without explicitly excluding the territory of western sahara. the protocol only refers to the fact that the activities will be carried out in the “moroccan fishing zone”, which clearly seems insufficient for an agreement concluded with a de facto administration state, a non-self-governing territory that assists the right of self-determination of the people and, therefore, the obligation of non-recognition and the subjection to the norms of occupation. nevertheless, the new agreement signed in 2018 does not guarantee the conservation of natural resources of saharawi people. in 2019, council decision19 took into account the cjeu pronouncements admitting that “the practice of applying the trade preferences set out in the association agreement and its protocols on a de facto basis to products originating in western sahara could not, therefore, continue”. the council decided nonetheless to remain in opposition to the cjeu judgements by adding the following sentence “the bilateral agreements between the european union and morocco can, however, be extended to cover products from western sahara under certain conditions, provided that the appropriate legal basis exists”. on the other hand, the cjeu pronouncements were much less clear when considering the international legal personality of polisario front. this national liberation movement legitimacy has been, not only compromised, but denied the both pronouncements. according to international law, polisario is the legal and sole representative of sahrawi people until western sahara territory can conclude the self-determination process. the legal status of the territory is still a non-self-governing territory, and the front is the legitimate representative of the sahrawi people, as it is said in the unscr 2625 (xxv), the territory has a different status from the administrating power: “the territory of a colony or other non-self-governing territory has, under the charter, a status separate and distinct from the territory of the state administering it; and such separate and distinct status under the charter shall exist until the people of the colony or non-self-governing territory have exercised their right of self-determination in accordance with the charter, and particularly its purposes and principles”. furthermore, following cassese, national liberation movements have “the rights and obligations deriving from rules on treaty making. the existence of the power is evidenced by the numerous agreements various liberation movements have entered into 19 council decision establishing the position to be adopted on behalf of the union in the association committee set up by the euro-mediterranean agreement establishing an association between the european communities and their member states, of the one part, and the kingdom of morocco, of the other part, concerning the exchange of information with morocco for the purpose of evaluating the impact of the agreement in the form of an exchange of letters on the amendment of the euro-mediterranean agreement. eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 254 on such matter” (cassese, 2005). in fact, front polisario itself has signed international agreements, as the peace agreement reached with mauritania in 1979. this legal status is not considered by the court clear enough to give procedural rights to polisario. but still, it cannot be denied the right of any legal person directly concerned to institute proceeding to the court, as it is said by article 263 para 4 of the treaty in the functioning of the european union: “any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”. front polisario has to be considered a legal person in accordance to their stable condition, structures, statutes and representation in international and national practice acting as a legal person. it has an individual interest in the effects of the decision, and according to the general principle pacta teriis nec nocent nec prosunt, it makes the regulation annullable and contrary to international law. furthermore, the article 29 of vienna convention on the law of treaties stated that “unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”. due to the special condition of the territory of western sahara, in order to fully respect the responsibilities under the un charter the eu needs to be much more clear in explicitly eliminating the territory of western sahara for several reason, that can be took from unscr 1514 (15) or general assembly resolution 2625 (xxv) and the enshrined ius cogens rule of self-determination. the judgment was also fronting international law basic resolutions, as the ungar 1803 about permanent sovereignty over natural resources when considered that “foreign investment agreements freely entered into by or between sovereign states shall be observed in good faith; states and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the charter and the principles set forth in the present resolution”. while the cjeu in its 2018 judgment seems to leave no doubt about the need to understand the agreement leaving out the territory of western sahara, one might wonder if the european union is violating the rules of occupation by not expressly excluding western sahara territory from the agreement. thus, the occupational standards studied reveal that mere collaboration with the occupying power could constitute a violation of the eu obligations to cooperate, so that the occupation situation comes to an end. in the same vein, the icj ruled in the opinion on the wall and unscr on western sahara 2152 (2014) or 2218 (2015). carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 255 4. palestine products in the eu: a thread to human rights? the eu has repeatedly condemned the occupation of the territory by israel, not recognizing any sovereignty over the settlements, which until date already dominate 45% of the territory. this would be the accomplishment on the very first obligation by the european union in these cases, recognising there is a territory pending the exercise of self-determination of people by not recognising there is any sovereignty of the occupying power. in addition, after the adoption of the general assembly resolution in which nonmember observer state status20 was granted to palestine, and its recognition by those of 130 states of the international community, the european parliament declared in 2014 that it “supports in principle recognition of palestinian statehood”21, in addition to showing its deep concern about the situation in the region and stressing that the only possible solution to the conflict is the coexistence of two states, israel and palestine. although there are erga omnes obligations, the european union has maintained economic relations with the occupying power, israel, who has received grants in different cooperation programs. in fact, as the union itself acknowledges “the eu is israel's main trading partner and receives 35.3% of israel's total exports ($ 16.8 billion) followed by the us. (32.1%)”.22 likewise, a solid relationship has been built based on the association agreement between them.23 an example is the scientific cooperation that has come to include israel as the only non-european partner of the horizon 2020 r&d strategy. the question is whether the consolidation of economic and commercial relations between the european union and israel, viewed in itself, means a breach of the rules of international law that impose on the european union an attitude of "not contributing" to such occupation. traditionally it has been argued that the obligation not to contribute to the occupation extends only to trade with the occupied territory, however, it is true that the establishment of high-level economic and diplomatic relations with a state that is violating essential norms of international law could imply incoherence with respect to the values and principles that the subjects of international law in general are called to respect contained in resolution 2625 (xxv) and in the charter of the united nations. in addition, it remains to be determined whether trade between the two does not, considered in itself, constitute a support for the activities that the occupying power develops in the occupied territory, even when there is no illegitimate use of the territory natural resources. indeed, the obligations that international law imposes on the subjects 20 a/res 67/19, status of palestine in the united nations, https://undocs.org/a/res/67/19. 21 http://www.europarl.europa.eu/doceo/document/ta-8-2014-0103_en.html. 22 european commission, press release, 19/02/2018, http://europa.eu/rapid/press-release_memo-95127_es.htm. 23 euro-mediterranean agreement establishing an association between the european communities and their member states, of the one part, and the state of israel, of the other part, doue 21.06.2000, l 147/03. https://undocs.org/a/res/67/19 http://www.europarl.europa.eu/doceo/document/ta-8-2014-0103_en.html http://europa.eu/rapid/press-release_memo-95-127_es.htm http://europa.eu/rapid/press-release_memo-95-127_es.htm eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 256 in cases of non-self-governing and occupied territories have to do with the objective of achieving a cessation of the occupation situation, which leads us to assume that only the blocking of the occupying power can be effective in stopping said breach of international standards. nevertheless, the eu has imposed some limits the trade with israel when its comprises products originated in palestinian territories. firstly, considering the 2013 eu guidelines on the eligibility of israel entities and their activities in the territories occupied by israel since june 196724, whose aim is to “ensure the respect of eu positions and commitments in conformity with international law on the non-recognition by the eu of israel’s sovereignty over the territories occupied by israel since june 1967”. as a result of this instrument, israel is only eligible for grants, prizes and financial instrument within pre-1967 borders. besides, the guideline hold a comprehensive perspective, stating that “in order to clearly articulate eu commitments under international law, taking into account relevant eu policies and positions, the commission will also endeavour to have the content of these guidelines reflected in international agreements or protocols thereto or memoranda of under standing with israeli counterparts or with other parties”. but also the cjeu has imposed restrictions to trade with israel. one of the best examples is the brita case25. in this case the cjeu considered that the products originated in palestinian territories fell outside the agreement territorial scope26, stating that “both from article 17 of the ec-israel protocol and from article 15 of the ec-plo protocol, that proof of origin must be produced in respect of products originating in the territories of the contracting parties if they are to qualify for the preferential treatment. that requirement of valid proof of origin issued by the competent authority cannot be considered to be a mere formality that may be overlooked as long as the place of origin is established by means of other evidence”. not considering this proof a mere formality is essential to certify the validity of the agreement and the effectivity of its clauses, as considered by the cjeu. in this scenario, the obligation concerning the european union to not contribute to the occupation would be infringed if the agreement is being applied without a consistent and rigorous approach. ten years after the brita case, another issue of note is the case c-363/1827, request for a preliminary ruling under article 267 tfeu from the conseil d’état (council of 24 guidelines on the eligibility of israeli entities and their activities in the territories occupied by israel since june 1967 for grants, prizes and financial instruments funded by the eu from 2014 onwards (2013/c 205/05), doue 19.07.2013. c/205/09. 25 case c-38/08. 26 considering, among others, para. 52, “accordingly, to interpret article 83 of the ec-israel association agreement as meaning that the israeli customs authorities enjoy competence in respect of products originating in the west bank would be tantamount to imposing on the palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the ec-plo protocol. such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in article 34 of the vienna convention. 27 case c-363/18. carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 257 state), france28. it concerns to the interpretation of regulation (eu) 1169/2011 on the provision of food information to consumers, and its relations to other eu amended norms29. in the regulation no 1169/2011, the area of consumer’s choice also include as a element to be considerate by the consumers the ethical reasons. this means that people should have the right to choose the food in order also to prevent any practices that may mislead the consumer. in this context, products must, among other considerations, provide the information of the country of origin. in the judgement, the cjeu considered that this regulation “must be interpreted as meaning that foodstuffs originating in a territory occupied by the state of israel must bear not only the indication of that territory but also, where those foodstuffs come from an israeli settlement within that territory, the indication of that provenance”30. also, it has to be included the interpretative notice on indication of origin of goods from the territories occupied by israel since june 196731, which indicates the exact denomination that products should contain when originate in the territories occupied by israel (golan heights, gaza strip and the west bank and east jerusalem). the note makes clear that the purpose is to “ensure the respect of union positions and commitments in conformity with international law on the non-recognition by the union of israel’s sovereignty over the territories occupied by israel since june 1967”. case c-363/18 has been considered in conjunction with the c-104/16 p council v. polisario front, expressing accordingly with this judgement that under international law both territories have a separate and different status from the state being under jurisdiction32, stating that “under the rules of international humanitarian law, these territories are subject to a limited jurisdiction of the state of israel, as an occupying power, while each has its own international status distinct from that of that state”33 and recognising the right to selfdetermination of the territories, as stated in the international court of justice advisory opinion on the wall34. in this case, the products were originated in israeli settlements located in palestinian territories. it is interesting the court examination about the policy of population transfer 28 the request has been made in proceedings between, on the one hand, organisation juive européenne and vignoble psagot ltd and, on the other hand, the ministre de l’économie et des finances (the french minister for the economy and finance) in relation to the legality of a notice concerning the indication of origin of goods originating in the territories occupied by the state of israel since june 1967. 29 regulations (ec) no 1924/2006 and (ec) no 1925/2006 of the european parliament and of the council, and repealing commission directive 87/250/eec, council directive 90/496/eec, commission directive 1999/10/ec, directive 2000/13/ec of the european parliament and of the council, commission directives 2002/67/ec and 2008/5/ec and commission regulation (ec) no 608/2004 (oj 2011 l 304. 30 case 363/18, judgement, para 21. 31 interpretative notice on indication of origin of goods from the territories occupied by israel since june 1967 (2015/c 375/05) 32 case 363/18, judgement, para 31. 33 ibídem., para. 34. 34 advisory opinion of 9 july 2004, legal consequences of the construction of a wall in the occupied palestinian territory (icj reports 2004, p. 136). eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 258 conducted by israel and the consideration on these facts as a violation of genève conventions in the area of international humanitarian law. the court referred to the article 3 (5) teu, and the obligation of the eu to “contribute to the strict observance of international law, including the principles of the united nations charter”35. for that matter, the court considers quite rightly that “the fact that a foodstuff comes from a settlement established in breach of the rules of international humanitarian law may be the subject of ethical assessments capable of influencing consumers’ purchasing decisions”36, finally concluding that “foodstuffs originating in a territory occupied by the state of israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an israeli settlement within that territory, the indication of that provenance”37. this sentence is of an enormously relevance due to the fact that the practice and legal precedents have been set into place, and this would be analogously applied to the case of western sahara. 5. conclusion human rights have been promptly incorporated to the legal framework governing trade and external action in the eu. tools such as gsp or the bilateral agreements, offer the opportunity to monitor the promotion of human rights by the eu with its commercial partners. even though, the restriction to certain products, should be extended to those whose economic benefits favoured illegal situation as occupation. the need imposed for labelling products, both of palestinian products and of those from israeli settlements in occupied territory is laudable on the part of the european union to carry out control over trade with an occupying power in accordance with and human rights approach. nevertheless, its close diplomatic and economic relations with israel are not reconcilable with the obligation to not provide help or assistance to the occupation. therefore, in this case there is a partial follow-up of the obligations incumbent on the eu with respect to a non-self-governing territories. in the case of western sahara, it is very difficult to understand how the almost consolidated policies in the territory of palestine have not been followed. in this case, there have been no sanctions, embargo or limits on investments, despite a situation of extreme vulnerability of the saharawi population in the territories managed by the occupying power and serious human rights violations. likewise, the drafting of an interpretative note on the indication of the origin of the goods from the occupied saharawi territory is necessary and urgent, just as this document exists with respect to the palestinian territories. 35 case 363/18, judgement, para 48. 36 ibídem., para. 56. 37 ibídem., para 60. carolina jiménez sánchez the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 259 in the trade agreements reached with morocco, it is urgent to make specific observations on the exclusion of the western sahara territory as well as specific human rights provisions. references cassese, a., (2005), international law, oxford university press. der-chin horng, (2003), “the human rights clause in the european union´s external trade and development agreements”, european law journal, 9, 5, (2003) 677-701. https://doi.org/10.1046/j.1468-0386.2003.00198.x gashi, k.; musliu, v.; orbie, j., (2017), “mediation through recontextualization: the european union and the dialogue between kosovo and serbia, european foreign affair review”, vol. 22, nº 4, 533-550. gómez cosarnau, a., (2003), “el uso de la cláusula democrática y de derechos humanos en las relaciones exteriores de la unión europea”, observatori de política exterior europea working paper, nº 39. janer torrens, j. d., (2017), “sistema de preferencias generalizadas y promoción de los derechos humanos en la acción exterior de la unión europea”, in martínez capdevilla, c.; martínez pérez, e., retos para la acción exterior de la unión europea, tirant lo blanch, 631-652. juliá barceló, m., (2019), “la proyección exterior de la identidad europea: política comercial común y condicionalidad en materia de derechos humanos”, cuadernos europeos de deusto, n.º 02 (febrero), 287-308. https://doi. org/10.18543/ced-02-2019pp287-308 kassoti, e., (2017), “the legality under international law of the eu’s trade agreements covering occupied territories: a comparative study of palestine and western sahara”, cleer papers 2017/3. kassoti, e., (2018), “the eu and western sahara: an assessment of recent developments”, european law review, 5, 751-769. koskeniemi, m.; leino, p., (2002), “fragmentation of international law? postmodern anxieties”, leiden journal of international law, vol. 15, issue 3, 553-579. https:// doi.org/10.1017/s0922156502000262 lenaerts, k., (2012), “exploring the limits of the eu charter of fundamental rights”, european constitutional law review, 8, 3, (2012) 375-403. https://doi. org/10.1017/s1574019612000260 payandeh, m., (2015), “fragmentation within international human rights law”, en mads andenas/eirik bjorge (eds.), a farewell to fragmentation: the icj’s role in the reassertion and convergence of international law, cambridge university press. https://doi.org/10.1046/j.1468-0386.2003.00198.x https://doi.org/10.18543/ced-02-2019pp287-308 https://doi.org/10.18543/ced-02-2019pp287-308 https://doi.org/10.1017/s0922156502000262 https://doi.org/10.1017/s0922156502000262 https://doi.org/10.1017/s1574019612000260 https://doi.org/10.1017/s1574019612000260 eu, trading and human rights the age of human rights journal, 17 (december2021) pp. 244-260 issn: 2340-9592 doi: 10.17561/tahrj.v17.6124 260 van der loo, g., (2018), “the dilemma of the eu’s future trade relations with western sahara caught between strategic interests and international law?”, ceps, commentary, thinking ahead for europe, 20 april 2018 van elsuwege, p., (2017), “legal creativity in eu external relations: the stabilization and association agreement between the eu and kosovo”, european foreign affairs review, vol 22, nº 3, 393-409. wahlqvist, t, (2021), trade agreements with occupying powers: a case study of the eu external action in western sahara from a social justice perspective, uppsala university. wisehart, d., (2014), “the crisis in ukraine and the prohibition of the use of force: a legal basis for russia’s intervention?” ejil: talk!, 4 march 2014. wrange, p., (2015), occupation/annexation of a territory: respect for international humanitarian law and human rights and consistent eu policy, study undertaken at the request of the european parliament 30 june 2015, pe 534.995.5 eu strategic framework and action plan on human rights and democracy, luxembourg, 25 june 2012 11855/12. received: february 4th 2021 accepted: july 25th 2021 eu, trading and human rights: consistent framework? 1. introduction 2. protecting human rights while trading? 3. challengues and threads trading in occupied territories 3.1. human rights in western sahara and trading with the occupying power 4. palestine products in the eu: a thread to human rights? 5. conclusion references hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 173 hobbes and the economic, social and cultural rights of the universal declaration of human rights javier f. hernández1 santiago dussan2 abstract: this article argues that the conceptions of natural rights in hobbes’s theory and of economic, social and cultural rights in the universal declaration of human rights have three common features that serve to justify the thesis that a satisfactory order of coexistence cannot be achieved without extensive state power. both conceptions identify rights with interests whose satisfaction is considered paramount. both perspectives see the state as the shaper of the legal order that rights do not create. finally, both see the state as the entity that must monopolize the management of individual interests represented in rights. this article suggests that these findings are paradoxical when confronted with the main motivation behind the drafting of the declaration. keywords: economic, social and cultural rights; natural rights; thomas hobbes; universal declaration of human rights; travaux préparatoires; state power. summary: 1. introduction. 2. hobbes’s concept of natural rights. 3. the concept and foundations of economic, social and cultural rights in the udhr. 3.1. article 22. 3.2. article 23. 3.3. article 24. 3.4. article 25. 3.5. article 26. 3.6. article 27. 3.7. the free and full development of personality and human dignity as pillars of the economic, social and cultural rights of the udhr. 4. main thesis. 5. final remarks. 1. introduction one view that has predominated among hobbes scholars is that his theory of rights has not been important or influential for contemporary theories of rights and, therefore, that it has little to contribute to discussions on the philosophical foundations of human rights. this thesis is based mainly on the idea that hobbesian individual rights are all ‘liberty rights,’ that is, rights that are not correlated with obligations on the part of others.3 if this is true, it seems clear that the hobbesian theory of individual rights has no important connection to the current human rights discourse and to the problems surrounding their foundations. after all, the way we currently think of human rights assumes that they 1 department of legal and political science, pontificia universidad javeriana-cali, colombia (jfhernandez@ javerianacali.edu.co) 2 department of legal and political science, pontificia universidad javeriana-cali, colombia (sdussan@ javerianacali.edu.co) 3 this is the thesis that, with different nuances, has been supported by authors like gauthier (1969, p. 30), hampton (1986, p. 51), and kavka (1986, pp. 299–300) mailto:jfhernandez@javerianacali.edu.co mailto:jfhernandez@javerianacali.edu.co mailto:sdussan@javerianacali.edu.co mailto:sdussan@javerianacali.edu.co hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 174 generate an obligation of respect on part of other individuals and particularly on part of the state (tierney, 2008, p. 36; green, 2012, p. 321; gauthier, 2001, p. 267; sreedhar, 2019, p. 142) from different perspectives, this generally accepted view has been questioned by authors like eleanor curran (2002, 2013) 4 and frank van dun (2001). van dun’s position, as presented in his article titled ‘human dignity: reason or desire? natural rights versus human rights’ has attempted to demonstrate the influence and importance of hobbes’s theory of natural rights in the current human rights discourse.van dun argues that the concept of human rights that served as a basis for the universal declaration of human rights (udhr or declaration) is a legacy of thomas hobbes’s conception of natural rights and not, as is often argued, a legacy of the classical theory of natural law and natural rights (dun, 2001, pp. 2–3). van dun bases his thesis on the similarities he finds between the concept of human rights in the udhr and hobbes’s concept of natural rights. with regards to form, he explains that the human rights of the udhr are ‘rights to’; regarding material content, they are ‘rights to desirable things,’ that is, to things that most people desire (dun, 2001, p. 12). thus, he says, human rights appear to be specific forms of a kind of generic right to the satisfaction of desire. according to van dun, the socio-political approach to jurisprudence, promoted at the end of the 19th century, was a return to hobbes’s subjectivist definition of ‘the natural right of man,’ according to which having rights means having desires to be satisfied. this conception of rights, he argues, served as the foundation of the udhr, which can be seen mainly in the inclusion of economic, social, and cultural rights, which are the distinctive elements of that declaration. for van dun, understanding social human rights5 as rights to the satisfaction of interests implies accepting that people’s rights can be as unlimited as their desires and, consequently, that individual rights constitute a major source of conflict and disorder in human coexistence (dun, 2001, p. 28).6 van dun’s thesis is innovative and interesting from at least three perspectives. first, it challenges the traditional view that hobbes’s theory of rights has been neither relevant nor influential in the formulation of the current human rights discourse. second, it seeks to show that hobbes’s political theory can serve as a model for understanding the nature and implications of a certain conception of human rights. third, it also suggests that hobbes’s theory of rights can bring new analytical elements to the debate on the philosophical 4 curran has tried to show that hobbes does have a theory of rights that generate correlative obligations, and that this theory can contribute much to contemporary theories of individual rights. 5 in this article, the phrases ‘social human rights’ or ‘social rights’ are used to refer to the social, economic, and cultural rights of the udhr. 6 his criticism is directed at the way in which all human rights in the udhr are generally conceived. however, from the examples and explanations he gives, it can be inferred that the main target of his criticism is social rights. therefore, we take van dun’s argument in that specific sense, that is, considering only the similarities between hobbesian natural rights and the social rights of the udhr. javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 175 foundations of human rights. despite the above, van dun’s proposal remains virtually unexplored by hobbes commentators or human rights theorists.7 this article takes the line of analysis suggested by van dun as its starting point. it argues that the concepts of natural rights in hobbes’s theory and of social rights in the udhr have three common characteristics that lead to the conclusion that, without an extensive state power, it is not possible to achieve a satisfactory order of coexistence. the first significant similarity is that in both cases the rights relate to interests that, in general, human beings consider extremely valuable to satisfy. a second common feature is that, in both perspectives, the state is seen as the shaper of the legal order that the individual rights in question cannot create. third, the state is seen by both conceptions as the entity that must monopolize the management of the individual interests represented in subjective rights. the rest of this article is organized as follows: section 2 presents the concept and function of natural rights in hobbes’s political theory. in section 3, the travaux préparatoires for articles 22 to 27 of the udhr are explored, and the concept and rationale of social rights from the perspective of the authors of the udhr is presented. section 4 concludes the central argument by developing the main thesis based on an analysis of the characteristics presented in the previous two sections. section 5 suggests, by way of a final remark, that the research findings appear to be paradoxical when contrasted with the main motivation behind the creation of the udhr. 2. hobbes’s concept of natural rights before examining the definition of natural rights provided by hobbes in leviathan, it should be said that he establishes a direct relationship between this concept and his concept of state of nature. according to hobbes, having natural rights is one of the reasons why the state of nature is a state of war.8 therefore, in order to clearly understand the meaning and role of natural rights in hobbes’s work, it is important to explain, first of all, precisely what the state of nature is and why he identifies it with war. the state of nature, or ‘the natural condition of mankind,’ is the way in which individuals live when there is no civil state. in hobbes’s words, it is “the time men live without a common power to keep them all in awe” (hobbes, 1998, p. 84).9 in chapter 13 of leviathan, hobbes describes this ‘natural condition of mankind’ in depth. he begins by stating that human beings are equal by nature. nature, he explains, has made men 7 one article by paul gottfried contains several points of criticism against van dun’s argument, mainly about his idea that hobbes’ atomistic anthropology is related to the conceptual origins of the udhr. (gottfried, 2002). another reference to van dun’s thesis is made in stephen p. marks’s article 'the past and future of the separation of human rights into categories' (2009, p. 225). however, that work does not include a critical analysis of van dun’s argument. 8 see finkelstein (2001, p. 333) 9 (ch.13, par. 8) hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 176 so physically and mentally equal that, although some may be stronger or shrewder than others, when everything is considered as a whole, these differences are not so significant as to justify an individual claiming for himself any benefit that another individual cannot also claim (hobbes, 1998, p. 82).10 hobbes asserts that from that natural equality in the faculties arises equality in the hope that each individual has of attaining his ends. thus, when two men desire the same thing, which cannot be enjoyed by both, they become enemies and attempt to destroy and subjugate each other in order to satisfy their desire. hence, each individual distrusts the other (hobbes, 1998, p. 83).11 according to hobbes, “from this diffidence of one another, there is no way any man to secure himself, so reasonable, as anticipation; that is, by force, or wiles, to master the persons of all men he can, so long, till he see no other power great enough to endanger him.” (hobbes, 1998, p. 83).12 hobbes further states that men experience no pleasure, but, on the contrary, great suffering, in living together with others when there is no common power to frighten them all. this, because every individual wants his companion to hold him in as high esteem as he holds himself and will therefore be ready to injure or even destroy whoever gives him any sign of underestimation or contempt (hobbes, 1998, p. 83).13 hobbes concludes, therefore, that in human nature there are three main causes of discord. all three impel men to attack each other. the first is competition, which causes men to confront each other to acquire gain; the second is diffidence, which drives them to fight for safety; and the third is glory, which causes them to use violence to gain reputation (hobbes, 1998, pp. 83–84).14 for the above, hobbes says that the state of nature is a state of war of “every man against every man” (hobbes, 1998, p. 84).15 he describes this condition as the most unfortunate for men, not only because it prevents cooperation and life in society, but also because those who live in it are in constant danger of dying violently (hobbes, 1998, p. 84).16 immediately after describing the state of nature, hobbes introduces the concept of natural right or right of nature. hobbes calls ‘the right of nature’ (jus naturale) the liberty that, in the state of nature, each individual has to use all the means and perform all the actions that he considers necessary for his preservation. according to hobbes, given the natural equality that exists among men, it is up to each one to judge whether or not the means he uses and the actions he performs contribute to the preservation of his life (hobbes, 1991, p. 116).17 10 (ch.13, par. 1) 11 (ch.13, par. 3) 12 (ch.13, par. 4) 13 (ch.13, par. 5) 14 (ch.13, par. 6-7) 15 (ch.13, par. 8) 16 (ch.13, par. 9) 17 (ch.1, sec. 9) javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 177 hobbes, in chapter 14 of leviathan, defines the right of nature as follows: the right of nature, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto. (hobbes, 1998, p. 86).18 after defining natural right as a liberty, hobbes explains what he means by liberty: by liberty, is understood, according to the proper signification of the word, the absence of external impediments: which impediments, may oft take away part of a man's power to do what he would; but cannot hinder him from using the power left him, according as his judgment, and reason shall dictate to him. (hobbes, 1998, p. 86).19 from both definitions, it follows that, in order to understand hobbes’s concept of natural right, it is key to first understand his concept of liberty. it is worth noting that hobbes does not conceive the natural liberty or freedom of an individual as a de jure power, but rather as a de facto power. this power, according to the above definition, is reduced to the extent that there are impediments or obstacles external to the individual. in accordance with this explanation, hobbes says that “a freeman, is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to.” (hobbes, 1998, p.139).20 hobbes holds that liberty properly signifies the “absence of opposition,” and by opposition he means “external impediments of motion” (hobbes, 1998, p. 139).21 hence, he states that it is only appropriate to apply the words ‘free’ and ‘liberty’ to corporal things, for only that which is subject to motion can be subject to impediment. if freedom is, strictly speaking, corporal freedom, it can refer to both rational and irrational creatures: for whatsoever is so tied, or environed, as it cannot move, but within a certain space, which space is determined by the opposition of some external body, we say it hath not liberty to go further. and so of all living creatures, whilst they are imprisoned, or restrained, with walls, or chains; and of the water whilst it is kept in by banks, or vessels, that otherwise would spread itself into a larger space, we use to say, they are not at liberty, to move in such manner, as without those external impediments they would. (hobbes, 1998, p. 139).22 18 (ch.14, par. 1) 19 (ch.14, par. 2) 20 (ch.21, par. 2) 21 (ch.21, par. 1) 22 (ch.21, par. 1) hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 178 according to hobbes, the only thing that can reduce or limit freedom are the obstacles or impediments caused by external bodies. thus, “when the impediment of motion, is in the constitution of the thing itself, we use not to say, it wants the liberty; but the power to move; as when a stone lieth still, or a man is fastened to his bed by sickness.” (hobbes, 1998, p. 139).23 from the above explanation, it is clear why hobbes states that the liberty of a human being is, strictly speaking, the freedom from chains and imprisonment; that is, the power of movement that is not impeded or hindered by external bodies (hobbes, 1998, p. 141).24 considering that hobbes defines natural right as a liberty, then we must understand this right as an unimpeded individual power of movement or, in his own words, as a corporal liberty. as pettit points out, hobbes’s concept of corporal liberty refers to ‘the freedom to enact the decision made,’ which is different from the ‘freedom to make decisions as between different options’: hobbes distinguishes between two sorts of freedom or liberty: the freedom to make a decision as between different options and the freedom to enact the decision made. the first sort of freedom is alienated by contractual obligation, since it transfers the right of decision to another….thus, where an agent has not alienated the right to decide, we may ascribe a contractual variety of freedom. the second sort of freedom—the freedom to enact a decision—is alienated by any physical or corporal impediment to acting on a decision….and so, where there is no such impediment to the agent’s action, we may ascribe what hobbes himself calls ‘‘corporal’’ freedom or liberty; this is what he takes to be freedom in the strict or proper sense. (pettit, 2012, p. 120).25 based on the definitions given by hobbes, the right of nature would therefore be the corporal liberty that each individual has to use his power in the way in which his judgment and reason consider most suitable for the preservation of his own life. according to him, this right comprises any action that the individual considers appropriate in order to achieve the end of self-preservation. it is, therefore, a right to everything, even to injure or kill one’s companion: and because the condition of man…is a condition of war of every one against every one; in which case every one is governed by his own reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemies; it followeth, that in such a condition, every man has a right to every thing; even to one another's body. (hobbes, 1998, 86–87).26 23 (ch.21, par. 1) 24 (ch.21, par. 6) 25 see also pettit (2005, pp. 131–151) 26 (ch.14, par. 4) javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 179 if liberty is, strictly speaking, a power of movement unobstructed by external bodies (de facto power), and the right of nature is a liberty, it seems clear that the meaning attributed by hobbes to the term ‘right of nature,’ or ‘jus naturale,’, differs substantially from the meaning this very term had in the natural law tradition before him. as tierney explains, the phrase ‘ius naturale’ began to be used in a subjective sense by medieval jurists, from the twelfth century c.e. onwards, to refer to a licit claim, faculty or power inherent in every human individual (tierney, 2004, p. 6). thus, defined in this subjective form, a natural right or ius naturale referred to an individual licit power or faculty that did not have human law as its source, but came from natural law. as natural law was a mandate of divine authority, the natural rights derived from it generated correlative obligations of respect and compliance. when it was affirmed that an individual had, for example, the natural right to defend herself against a legal charge in a court of law, it meant that others had the correlative obligation not to impede or obstruct the performance of that action. contrary to what was proposed by the medieval natural law tradition that influenced authors like francisco vitoria (1934), francisco suárez (1918) and hugo grotius (2005), hobbes does not conceive the right of nature as the licit power of an individual that generates correlative obligations of respect or compliance for others. as noted, hobbesian natural right is not a de jure power, but a de facto power. hobbes calls natural right the de facto power of an individual to carry out actions for the preservation and defense of his life. such a ‘right,’ however, does not generate correlative obligations or duties for others; and is not limited by any legal restriction stemming from the natural rights of other individuals (johns, 2009, p. 564). if an individual has the natural right to hunt an animal for food, this in no way implies that others have an obligation not to prevent her from pursuing the animal, or a duty not to take it from her once she has it under her control. therefore, hobbes maintains that property does not exist in the state of nature, and a man’s control over a thing lasts as long as he actually manages to keep it (hobbes, 1998, p. 85).27 an important idea of hobbes’s approach to the right of nature is that the use of this right, when peace cannot be achieved, is a precept or general rule of reason. in other words, to achieve conservation, reason dictates that we seek peace and maintain it, which, according to hobbes, means to create a sovereign with immense power over the subjects. however, when this purpose cannot be achieved, and we find ourselves in the natural condition, without any hope of getting out of it, reason tells us that we must defend ourselves with all the means at our disposal; that is to say, that we must use our natural right (hobbes, 1998, p. 87).28 hence, in de cive, hobbes states that when individuals are in a state of nature it is “neither absurd nor reprehensible, neither against the dictates of true reason, for a man to use all his endeavours to preserve and defend his body and the members thereof from death and sorrows.” (hobbes, 1991, p. 115).29 what is the function of natural rights in hobbes’s argument? in other words, what is his intention behind arguing that, in the natural condition, every individual has a right 27 (ch.13, par. 13) 28 (ch.14, par. 4) 29 (ch.1, sec. 7) hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 180 to all things? following martinich (1995), it could be argued that hobbes’s main intention in introducing the concept of natural rights into his theory is to make even more apparent the pressing need for human beings to leave the miserable condition in which they find themselves in their natural state (martinich, 1995, p. 265). hobbes argues that having a right to everything not only brings no benefit to human beings, but also catalyzes conflict among them. in the elements of law, he states that the right of all men to all things “is in effect no better than if no man had right to any thing.” (hobbes, 1969, p. 72).30 similarly, he says in de cive: but it was the least benefit for men thus to have a common right to all things. for the effects of this right are the same, almost, as if there had been no right at all. for although any man might say of every thing, this is mine, yet could he not enjoy it, by reason of his neighbour, who having equal right and equal power, would pretend the same thing to be his. (hobbes, 1991, p. 117).31 as stated above, the right of nature does not improve the situation of individuals in their natural condition and is also a source of perpetual distrust among them. the right of nature is, therefore, one more cause of war according to hobbes: if now to this natural proclivity of men, to hurt each other, which they derive from their passions, but chiefly from a vain esteem of themselves, you add, the right of all to all, wherewith one by right invades, the other by right resists, and whence arise perpetual jealousies and suspicions on all hands, and how hard a thing it is to provide against an enemy invading us with an intention to oppress and ruin, though he come with a small number, and no great provision; it cannot be denied but that the natural state of men, before they entered into society, was a mere war, and that not simply, but a war of all men against all men. (hobbes, 1991, pp. 117–18).32 for all individuals to have a right to everything is equivalent to no one having a right to anything. this is so precisely because the natural right of a human being, as a de facto power, does not produce any correlative obligation for others. no individual has the obligation or duty to respect what another decides to do or have within the bounds of her natural right. in that sense, it can be argued that the aim of hobbes’s theory of natural rights is very different from that which is normally pursued by other theories of natural rights. theories like those of hugo grotius (2005) and john locke (2003) are aimed at recognizing a sphere of legitimate action for the individual in which others cannot intervene. thus, it is affirmed that whoever is unjustly hindered in the exercise of her right can use legitimate force to repel the aggressor or demand reparation for the damage. therefore, conceived this way, the consequence of the attribution of rights to individuals 30 (p. i, ch. 14, sec. 10) 31 (ch. 1, sec. 11) 32 (ch. 1, sec. 12) javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 181 is the establishment of a natural legal order. however, such an effect does not arise in hobbes’s theory, as natural rights, being de facto powers, cannot fulfilll the function of demarcating a line that separates legally permitted and prohibited conduct. as a result, natural rights in hobbes’s theory, far from determining a natural order of coexistence between human beings, lead individuals to a situation of war of all against all, in which each individual seeks the satisfaction of their desires through violent and invasive actions. hence, the conclusion of hobbes’s argument is that, as the natural condition of men is one of total disorder and conflict, it is absolutely necessary to escape from that state through the constitution of a body that monopolizes the power to decide in what way and to what extent the conflicting interests of individuals must be satisfied33. this body is, of course, the civil state. 3. the concept and foundations of economic, social and cultural rights in the udhr 3.1 article 22 article 22 of the udhr aims to introduce and enhance the economic, social and cultural rights (escr) enshrined in the udhr. the drafters of the udhr included this general article in order to emphasize these new rights (which were considered less well known than civil and political rights at the time), and to draw attention to the additional efforts needed for their realization (diller, 2012, p. 38). at the meeting of the commission on human rights on june 9, 1948, the idea of including a general and introductory article on escr was widely supported (e/cn.4/ sr.65).34 malik (lebanon) argued that “it should be clearly stated somewhere in the declaration that it was not enough to enumerate economic and social rights, but that society itself should be of such a nature as to ensure the observance of those rights….an article to that effect should therefore be included in the section devoted to economic and social rights” (e/cn.4/sr.65/p.3). at the end of the meeting, the chairman appointed a sub-committee to work out a special article concerning the measures to be taken in order to ensure enjoyment of economic and social rights (e/cn.4/sr.65/p.11). the appointed sub-committee recommended that the commission add the following article to the end of the declaration: “everyone has the right to a good social 33 hobbes’s idea that the state’s main function is to arrange the way in which individuals can meet their needs explains why he thinks it is essential that the state supervises and, if necessary, intervenes in economic activity. as mcarthur points put, “[hobbes] thinks that economic activity plays a crucial role in determining people’s well-being – and thus, ultimately, social stability – and he insists that the state must pay attention to, and be active in regulating, people’s behavior in the market. he also thinks that government must be willing to expend resources in order to ensure the welfare of the people.” (mcarthur, 2012, p. 78) 34 all references to the preparatory documents can be found on the official u.n. website: drafting of the universal declaration of human rights (no date). available at: https://research.un.org/en/undhr/introduction [accessed: 21 february 2021]. https://research.un.org/en/undhr/introduction hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 182 and international order in which the rights and freedoms set out in this declaration can be fully realized.” (e/cn.4/120). on june 10, 1948, cassin (france), who had been a member of the sub-committee, explained to the commission that his delegation had proposed a second draft article addressing escr (e/cn.4/sr.67/p. 5), which stated: “everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfillment should be made possible in every state separately or by international collaboration.” (e/cn.4/120). on june 14, 1948, the discussion continued on the texts submitted by the subcommittee and the french delegation. for cassin, it was clear that the commission had to follow the example of all recent constitutions in which escr were treated differently from other rights. material assistance from the state is essential for social rights to be fully effective. according to cassin, this was a practical difference that the declaration could not ignore. finally, the commission approved the following text: “everyone as a member of society has the right to social security and is entitled to the realization of the economic, social and cultural rights enumerated below, in accordance with the organization and resources of each state, through national effort and international co-operation.” (e/cn.4/ sr.72/p. 10). the text approved by the commission, with some stylistic changes, became article 20 of the draft declaration (e/800), which was sent to the general assembly for its consideration. in november 1948, the content of article 20 was resubmitted for consideration in the deliberations of the third committee of the general assembly. pérez cisneros, the cuban representative, criticized the part of the article that stated that escr would be specified in later articles of the document. according to him, this reference weakened article 20, which deserved to stand on its own (a/c.3/sr.137/p. 498). he proposed the adoption of the amendment that his delegation had submitted, deleting the phrase “set out below” and replacing it with the phrase, “essential to their dignity and the free development of their personality.” (a/c.3/232). none of the delegations that expressly agreed with the amendment proposed by cuba offered extensive arguments to support their positions, but briefly stated their reasons in support of the amendment. it was mentioned, for example, that such a change would lend greater strength and self-sufficiency to the article. it was also stated that the amendment would have the advantage of recalling the references to the dignity of man and the free development of his personality that appeared in other articles of the draft declaration (a/c.3/sr.138/p. 508-509). the third committee did not examine or discuss the meaning and relevance of the notions of dignity and free development of the personality that were being proposed for inclusion in article 20. the absence of opposition shows that the drafters considered escr a necessary means to guarantee the individual a life of dignity and as indispensable conditions for the free development of her personality (diller, 2012, pp. 69–70). the text was adopted and became current article 22 of the udhr (a/c.3/sr.138/p. 514). javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 183 3.2 article 23 for the drafters, the right to work was one of the forms in which the right to full development of the personality was expressed. they recognized that the lack of work is a problematic situation that negatively affects an individual and her family and thus decided to enshrine everyone’s right to protection against unemployment. this means that other members of society and the state must take necessary measures to prevent and combat unemployment. the drafters also believed that the wages and the conditions under which work is performed must be compatible with the dignity of both the employee and her family. hence, they enshrined every worker’s right to a remuneration that ensures her and her family a dignified existence35. if the remuneration is not sufficient to achieve this purpose, it must be supplemented by other means of social protection. in june 1947, the drafting committee asked rené cassin (france) to rewrite a new draft of the declaration based on the document prepared by john humphrey36 (director of the un’s human rights division). cassin reformulated all the labor-related provisions and included them in his document. in the revision of his draft, cassin proposed two articles related to the right to work that were relevant to the udhr drafting process: article 29. everyone has the right and the duty to perform socially useful work and to full development of his personality. article 31. human labour is not a merchandise. it shall be performed in good conditions, and shall secure a decent standard of living to the worker and his family. (e/cn.4/ac.1/w.2/rev.2/p. 5-6). according to morsink (1999, p. 161), the provisions on the obligation to work and the development of personality are connected to socialist thought, which prescribes the duty of every individual to perform socially useful work. such work contributes to the general welfare because it benefits the community in which it is performed. similarly, when things are done right, work is an expression of the right of every person to the full development of her personality. this explains, according to morsink, why cassin added the reference to the right to the full development of the personality to humphrey’s text. on december 9, 1947, in the deliberations of the working group on the declaration on human rights, it was proposed to include in article 29 a provision referring to the duty of the state to take measures to prevent unemployment (e/cn.4/ac.2/sr.7/p.11). stepanenko (byelorussia) stated that unemployment was a distressing situation that had an impact on family life and that the burden of preventing it should be shifted onto the 35 although the principle of non-discrimination had been clearly established in article 2 of the udhr, most delegates felt that it was necessary to include the right to equal pay for equal work, especially to ensure that women are treated equally in the workplace (e/cn.4/sr.66) 36 humphrey's draft corresponds to the u.n. doc. e/cn.4/ac.1/3 hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 184 state (e/cn.4/ac.2/sr.7/p.11). the working group decided to adopt the following text to be incorporated as the second paragraph of article 29: “the state has a duty to take such measures as may be within its power to ensure that all its citizens have an opportunity for useful work.” (e/cn.4/ac.2/sr.7/p.13) the commission then considered the lebanese delegation’s proposal, which comprised adding to the first paragraph of the article on the right to work (which at that time was article 23), a final phrase that would read: “and of protection against unemployment.” (e/cn.4/sr.65/p. 8). according to malik (lebanon), the word ‘protection’ was completely unambiguous and included all measures (taken by the state, society or international cooperation) to address unemployment. he also explained that his amendment would complete the first paragraph by establishing the theory of the right to constant employment. malik’s proposal was approved by the commission (e/cn.4/sr.65/p. 11). as for article 31 of the cassin draft, the first thing to note is that in essence it is not very different from what was finally approved as the third paragraph of article 23 of the udhr. when the third committee of the general assembly separately approved each of the four paragraphs of the article on the right to work (article 21 at the time), but then could not agree on the adoption of the article in its entirety (a/c.3/sr.141/p. 539), it created a huge crisis.37a sub-committee was appointed to prepare a new text to solve this problem. referring to the conditions under which human labor should be carried out, the sub-committee adopted the following text as the second paragraph of article 21: “every one who works has the right to just and favourable remuneration, supplemented if necessary by such other means of social protection as may be required to meet the needs of his family.” (u.n. doc. a/c.3/363). pérez cisneros (cuba) objected to the arguments of some delegations which contended that article 22 already covered the matter contained in this paragraph of article 21. according to him, article 22 dealt with the social security of those who, for various reasons, were unable to work. article 21, in contrast, referred to the fact that those who do work are entitled to remuneration commensurate with their needs and those of their families. pérez believed that article 21 protected the dignity of the worker, who should not depend on philanthropy. for him, it was clear that some provisions should be made for those who had to support people who were too old to work, people with disabilities, or numerous children. it was society’s duty to ensure “that such families, too, could lead a life compatible with human dignity.” (a/c.3/sr.157/p. 681). the byelorussian delegation proposed introducing the following text to the second paragraph of article 21: “everyone who works has the right to just and favorable remuneration ensuring for his family and himself an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” (a/c.3/sr.157/p. 688). according to kaminsky (byelorussian s.s.r.), the wording of his amendment made it clear that the needs of the family should be included in the calculation of fair 37 see morsink (1999, p. 182) javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 185 remuneration, which would serve to ensure a decent existence for the worker (a/c.3/ sr.157/p. 688). kaminsky’s proposal was approved by the third committee (a/c.3/ sr.157/p. 689). although some delegates noted that everyone’s right to form and to join trade unions was already covered by the generic right to freedom of association, the idea prevailed that in view of its novelty and lack of recognition in some countries, it was vital for the declaration to make special mention of trade union rights (e/cn.4/sr.66/p. 4). 3.3 article 24 the authors of the declaration found it necessary to recognize that the worker must be granted the right to rest and enjoy her free time, since without this right she cannot fully develop the capacities that constitute her personality. hence, they thought it was necessary to grant her periodic paid vacations, and to ensure that the duration of her working day has a reasonable limit. when the third committee was discussing the right to rest and leisure, this right was included under article 24 as follows: “everyone has a right to rest and leisure.” (e/800). the new zealand delegation submitted to the third committee an amendment to article 24: “everyone has the right to rest and leisure, to reasonable limitation of working hours and to periodic holidays with pay.” (a/c.3/359). several other proposed amendments linked the right to rest with the concepts of personal development and/or self-fulfillment. for example, the delegations of the philippines and argentina, jointly presented the following proposal: “everyone is entitled to due rest and leisure for his spiritual, cultural and physical well-being.” (u.n doc. a/c.3/358).38 the amendments referring to personal development were criticized by some delegations as repeating ideas related to social security and thus adding nothing new to the article (a/c.3/sr.149/p. 608-609). finally, the members of the third committee approved the new zealand’s proposal (a/c.3/sr.150/p. 614), which apart from some stylistic changes, was the same as article 24 of the current udhr. 3.4. article 25 for the free and full development of human capabilities, the drafters concluded that it was necessary for each person and her family to have a standard of living that is adequate for their health and well-being. this right to an adequate standard of living 38 similarly, the cuban delegation proposed the following text: “every person has the right to leisure time and to the opportunity for advantageous use of his free time to his spiritual, cultural and physical benefit (u.n. doc. a/c.3/261) hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 186 includes the right to food, clothing, housing, medical care, and necessary social services. to prevent circumstances beyond an individual’s control from stopping her from having an adequate standard of living, the authors recognized the existence of the right of every person to social security in case of unemployment, illness, disability, old age or other circumstances that cause her to lose her means of subsistence.39 in its third session, the commission on human rights considered a proposal from the international labor organization (ilo). the proposed text was as follows: “every one has the right to a standard of living, and to social services adequate for the health and wellbeing of himself and his family and to social security including protection in the event of unemployment, sickness, disability, old age or other lack of livelihood in circumstances beyond his control.” (e/cn.4/sr.70/ p. 9). the chinese delegate proposed an amendment to that text, which comprised inserting the phrase “including housing and medical care, food and clothing” after the words ‘social services.’ (e/cn.4/sr.71/ p. 9). the committee approved the inclusion of the complete list of rights proposed by china in the text (e/cn.4/sr.71/ p. 14) 3.5. article 26 the drafters of the udhr also believed that it is not possible to fully develop personality without education. in fact, they decided to expressly state that personality development was the goal of education. hence, they enshrined that education should be free and compulsory at elementary level. the final version of article 26 of the udhr is very similar to that stated by humphrey in article 36 of his draft (a/c.1/3). when the working group on the declaration of human rights was discussing the right to education, a.l. easterman, representative of the world jewish congress, noted that the article on education “contained nothing about the spirit governing education which was an essential element” (e/cn.4/ac.2/ sr.8/p.4). he therefore proposed adding the following article: “this education shall be directed to the full development of the human personality, to strengthening respect for human rights and fundamental freedoms and shall combat the spirit of intolerance and hatred against other nations or racial religious groups everywhere.” (e/cn.4/ac.2/ sr.8/p.4). this is, in essence, the content of the current paragraph 2 of article 26 of the udhr.40 39 the protection that the second paragraph of article 25 enshrines for motherhood and childhood had been included since cassin’s draft (u.n. doc. e/cn.4/ac.1/w.2/rev.2. art. 34) and was approved by the drafters without further discussion. the third committee proposed the part referring to the equal social protection to which all children are entitled, regardless of whether they were born in or out of wedlock (u.n. doc. a/c.3/344) 40 paragraph 3 of article 26 was included as a result of a debate on the need to prevent situations in which, as in nazi germany, the state prevents parents from freely choosing the type of education their children receive. (a/c.3/sr.146/ p. 582). javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 187 3.6. article 27 the authors of the udhr also considered it necessary to recognize the right of everyone to enjoy the arts and to participate freely in the cultural life of the community, in order to achieve the free and full development of the individual.41 it is no less necessary that the individual should have the right to benefit from the advancements of science, as her health and/or well-being may depend on them.42 in the deliberations of the third committee, cassin pointed out that, although not everyone can make an equal contribution to scientific progress, it is indisputable that everyone should share in the benefits derived from it (a/c.3/sr.150/p. 619). 3.7. the free and full development of personality and human dignity as pillars of the economic, social and cultural rights of the udhr from the above study, it is clear that the rationale for the inclusion of escr in the udhr is that the drafters conceived these rights as a necessary means to guarantee the individual a life of dignity and as indispensable conditions for the free and full development of her personality (morsink, 1999, p. 212; diller, 2012, p. 70). thus, the phrase ‘development of the personality’ appears in the general article introducing escr into the udhr (22) and in the article enshrining the right to education (26). the development of the personality is also mentioned in another article of the udhr which does not enshrine rights, but duties. this is the first paragraph of article 29, which states that “everyone has duties to the community in which alone the free and full development of his personality is possible.”43 this text shows that the authors of the udhr did not see human beings as individuals detached from their social context; on the contrary, they defended the interdependence between the individual and society. just as they judged that without society an individual cannot develop her personal abilities, they also considered that an individual who receives benefits from her community has duties toward it, principally the duty to respect and ensure the fulfillment of the rights of others. human dignity is another of the basis for proclaiming the existence of escr, according to the text of the udhr. like the reference to the development of the personality, the reference to dignity also appears in the introductory article of escr (22). 41 in the third committee, the delegations of france, cuba, and mexico jointly proposed adding a second paragraph to the article on the right to participate in culture. the proposed text was as follows: “everyone has, likewise, the right to the protection of his moral and material interests in any inventions or literary, scientific or artistic works of which he is the author.” (u.n. doc. a/c.3/360). campos ortiz, the mexican representative, asserted that the united nations should use its moral authority to protect all forms of labor, both manual and intellectual. finally, the third committee approved this amendment (u.n. doc. /a/c.3/ sr.152/p. 635), which is why the second paragraph of article 27 of the udhr was included. 42 as morsink notes, the right to share in the benefits of science includes, among other things, the possibility of receiving affordable medicines. (morsink, 1999, p. 219) 43 the text of the dudh can be found on the official u.n. website: universal declaration of human rights (no date). available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights [accessed: 24 february 2021] hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 188 for the drafters, the effective fulfillment of each person’s social rights is vital for her living conditions to be compatible with her dignity as a human being. this idea, as seen above, is expressly stated in article 23, which addresses the right to work (23). human dignity is not only mentioned in the articles that refer to escr, but is also found in article 1 and in the preamble of the udhr. article 1 states that “all human beings are born free and equal in dignity and rights, and endowed as they are with reason and conscience, should act towards one another in a spirit of brotherhood.” similarly, the preamble refers to dignity in its first and fifth paragraphs. the texts cited above show that the drafters considered human dignity the fundamental idea that justifies the recognition of all the rights in the udhr, including escr. a reading of the travaux préparatoires44 shows that the relevance of the inclusion of the word ‘dignity’ in article 1 and in the preamble was not really questioned or objected to by the drafters45. nor was there any debate about the specific meaning that the concept of human dignity had or should have (hughes, 2011). as mccrudden (2008) explains, it is not surprising that the idea of dignity was included without any further discussion in the text of the udhr, especially as the expression ‘human dignity’ had been incorporated into the preamble of the charter of the united nations in 1945, and a few months later into the preamble of the international treaty creating unesco. similarly, in 1944, the declaration of philadelphia had proclaimed the right of all human beings to “pursue both their material well-being and their spiritual development in conditions of freedom and dignity.”46 according to mccrudden (2008, p. 676), by resorting to the idea of dignity as the foundation of human rights, the authors of the udhr were reassured that they were treading on safe ground, as this concept was frequently used in the circles that participated in the shaping of the global architecture of the un. 4. main thesis as we saw in the first part of this article, natural rights in hobbes’s theory fulfill the role of demonstrating that without the state there is no possible order of coexistence. hobbes himself says that a universal right to all things has almost the same effects as if no one had a right to anything. hence, universal war is the only possible outcome of the interaction among rational individuals who pursue their own survival, who are equally 44 in the process of drafting the declaration, cassin first included the phrase ‘human dignity’ in the articles. article 1 of his draft read: “all men are brothers. being endowed with reason, members of one family, they are free and possess equal dignity and rights.” (e/cn.4/ac.1/w.2/rev.2). as can be seen, this article is very similar to current article 1 of the udhr, particularly because both texts clearly establish that all people are equal in dignity. 45 with the one exception of te water (union of south africa) who believed “there could not be, neither was there, any universal standard among the peoples of the world in their different concepts of human dignity, which were, surely, determined by the differences in religious and social systems, usages and customs.” (a/c.3/sr.95/p. 92) 46 the text of this declaration can be found in ilo declaration of philadelphia (no date). available at: https://www.ilo.org/legacy/english/inwork/cb-policy-guide/declarationofphiladelphia1944. pdf [accessed: 24 february 2021]. https://www.ilo.org/legacy/english/inwork/cb-policy-guide/declarationofphiladelphia1944.pdf https://www.ilo.org/legacy/english/inwork/cb-policy-guide/declarationofphiladelphia1944.pdf javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 189 vulnerable to attack by others, who compete for scarce resources, who distrust each other, and who are driven by a desire for glorification. hobbes seeks to refute the thesis of the previous natural law tradition, according to which there is a natural legal order of coexistence pre-existing and superior to the legal order created by political authority. by redefining the main concepts of the natural law theory (jus naturale and lex naturalis), hobbes wants to persuade his audience that there is no such thing as a pre-state legal order. if there were a natural legal order pre-existing and superior to the state’s legal order, political authority would have legal limits that it could not exceed without committing injustice. this would serve to justify, to a certain extent, the rebellion of the subjects in cases where the action of the state was considered to violate any of their natural rights.47 but this is precisely the idea that hobbes wants to dispute, as his proposal is based on the thesis that the sovereign has no legal obligation toward the subjects48. hence, he presents natural law and natural rights, not as concepts that create a natural legal order, but as reasons that justify the absolute necessity of a political authority that guarantees (through the management of conflicting individual interests) the preservation of the lives of the subjects and the possibility of their having a comfortable life. hobbes’s natural rights justify state power because they show that, without the help of such power, the individual will not be able to specify objectively what she is lawfully required to do in her dealings with others, for the sake of better self-preservation, that is, in order to coexist in peace and enjoy the benefits of cooperation. thus, the role of the sovereign will be to clearly establish the legal limits of the subjects that must be enforced in order to maintain a peaceful and prosperous coexistence. the subjective rights that create a legal order arise only when the sovereign legislates and specifically defines the legal obligations of the subjects. therefore, it can be said that the main mission of the state is to solve an inevitable difficulty faced by individuals when they are in the state of nature, which is the inability to determine the concrete content of the mutual obligations lawfully required for peaceful coexistence. the idea that escr should be recognized is often criticized on the ground that such rights fail to determine which precise social and economic claims should be granted right status (morales, 2018, p. 257; scott and macklem, 1992, p. 72). the problem of the indeterminacy of social rights would consist mainly in the difficulty of identifying the 47 this is, for example, the idea locke uses in the second treatise to justify subjects having the right to resist the acts of the ruler when he acts as a tyrant. (locke, 2003, pp. 188–193) (ch.18). 48 although in hobbes’s theory the sovereign has no contractual obligation to the subjects, this in no way means that some of the natural rights are not important limits of sovereign power, once the civil state has been constituted. on the contrary, hobbes explains that natural law obliges the sovereign to guarantee the subjects the exercise of what he calls their “inalienable” natural rights. these rights are the liberties that are indispensable for survival and to live comfortably, such as the right to resist violent attack, and the rights to the use of air or water. (hobbes, 1998, p. 222) (ch. 30, par. 1). the obligations of natural law moderate the power of the sovereign considerably, insofar as their breach is necessarily linked to terrible consequences for him: the rebellion of the subjects, civil war, and the possibility of violent and premature death. (hobbes, 1998, p. 244) (ch.31, par. 40). but it is worth bearing in mind that in hobbes’s theory these are not legal obligations, but what we might call “prudential” obligations. hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 190 specific benefits that the holder of the social right in question can demand or claim. this obstacle would logically extend to the delimitation of the correlative obligations that such rights entail for those who must respect, protect, or enforce them, and to the recognition of the type of conduct that constitutes a violation of these rights. it might be thought that one way of attenuating the problem of the indeterminacy of social rights would be to explain the basis of these rights, that is, to set out the reasons that justify their existence and defense in some detail. however, this partial solution could not be found in the case of the escr in the udhr. as was shown in the second part of this article, although the drafters formally made it clear that the foundations of these rights are the achievement of the free and full development of the personality and the assurance of an existence in accordance with human dignity, the travaux préparatoires show that there were no discussions on the concrete meaning of these notions. the udhr establishes that there are certain rights that are vital for every human being to develop her personal abilities freely and fully, and to lead a life of dignity. however, the udhr does not offer any criteria for identifying those personal abilities whose optimal development depends on the satisfaction of these rights. nor does it provide hermeneutical guidelines for attributing meaning to the phrase ‘human dignity’ that may serve to assess whether the actual conditions of a person’s life are compatible with such dignity. the reader of the udhr is informed in article 22 that she has the right to demand from other members of society the procurement of certain goods or services vital to her dignity and the free development of her personality. likewise, she is told in article 29 that she has duties to the community, and that, in the exercise of her rights, she shall be subject only to such limitations as are necessary to ensure respect for the rights of others and to meet (among others) the just requirements of general welfare. in other words, article 29 informs her that she also has a duty to contribute to the satisfaction of the social rights of others. on the other hand, the udhr omits any explanation or mention of what is to be understood by development of the personality or human dignity. what should the reader of the udhr conclude? what is she entitled to demand from other members of society? what are her duties or obligations toward others? from this, it seems reasonable to maintain that the social human rights formulated in the udhr do not in themselves establish a legal order, insofar as they do not provide any criterion for clearly determining the conduct that is lawfully required of individuals in their dealings with each other. a person who recognizes herself as the holder of social rights knows that she has the lawful power to demand from other members of society the goods and services that are necessary for her to develop as a person and live with dignity. likewise, she knows that others also have a right to claim these same goods and services from her. given that resources are limited, the problem of allocating them inevitably arises. what happens if one individual, in order to satisfy her right to education, claims the same resources that another requires to finance her right to health? the authors of the udhr left the interpreter of the text without any hermeneutical resources to at least outline a reasonable solution to such conflicts.49 49 see glendon (1999, pp. 12–14) javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 191 seen in this light, the situation in which the holders of the social rights proclaimed in the udhr find themselves is similar to that of individuals who, in hobbes’s theory, have a natural right to all things in the state of nature. in such a state, the rational individual described by hobbes knows that she has a natural right to whatever she judges necessary for her preservation. however, the individual recognizes that others also have the same right as she does. given the inevitable scarcity of resources, what should happen when two individuals pursue the same object, but both cannot enjoy it? can natural rights serve as a criterion for resolving the conflict and finding a ‘just’ distribution of the disputed goods? hobbes takes care to show that natural rights cannot fulfill such a purpose, as their main effect is not to order coexistence, but to aggravate mutual distrust and perpetuate the state of war between individuals. to solve the problem of the absence of a natural legal order, hobbes proposes the constitution of the civil state: a power that monopolizes the creation of law and establishes the conduct required of individuals in their mutual dealings. like hobbes, the drafters of the udhr saw state action as the main means to overcome the absence of legal order generated by the formulation of social rights in the document. from their perspective, states have the primary obligation to guarantee the social rights of their citizens. the deliberations on article 22 of the udhr indicate that the delegates considered that a fundamental difference between civil and political rights and social rights was that the fulfillment of the latter required material assistance from the state. however, it was also clear to them that each state should have the power to autonomously decide how it would design its economic policy and distribute resources to fulfill that objective.50 this is why article 22 of the udhr states that the satisfaction of the social rights of each individual should be obtained taking into account “the organization and resources of each state”. the udhr thus entrusts states with the task of creating the legal order that individuals must observe in order to achieve their social rights. for example, the state authorities must specify the amount that each citizen is obliged to contribute as taxes for the support of public health or education services, and the specific percentage that must be allocated to the fulfillment of each of these rights. similarly, the same authorities will determine the quantity, quality, or specific form of each good or service that each individual is entitled to demand from other members of society. if the udhr charges states with the function of determining the legal obligations that their citizens have with respect to the fulfillment of social human rights, it seems clear that states will also have the power to attribute a concrete meaning to the notions of ‘free and full development of the personality’ and ‘human dignity’. thus, state authorities will be primarily responsible for answering in detail questions such as: what are the personal abilities whose development must be protected and stimulated and to what extent? what does it mean to say that the human dignity of all people should be respected? what are the material conditions necessary for a citizen to lead a dignified existence? considering that the ability to define the way in which a society’s wealth should be redistributed to ensure the full attainment of social human rights implies a high degree of 50 see morsink (1999, p. 209) hobbes and the economic, social and cultural rights of the universal declaration of human rights the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 192 central planning, it is plausible to affirm that the udhr also gives states great power to control, even through coercive means, the way in which citizens can effectively exercise their right to property. this right, also recognized in article 17 of the udhr, must be considered by state authorities when establishing the conduct required of citizens in their reciprocal dealings with each other. thus, the state will define the extent to which a person’s right to property can be limited (via taxes, for example), in order to finance the cost of fulfillling her social rights and those of other members of the community. the above shows that the conceptions of natural rights in hobbes’s theory and of social rights in the udhr share three characteristics that serve to justify the idea that it is not possible to achieve a satisfactory order of human coexistence without the very broad power of state intervention. the first significant similarity is that in both cases the rights are related to interests that, in general, human beings consider extremely important to satisfy. in the case of hobbes’s theory, natural rights encompass whatever the individual deems necessary for her self-preservation. in the case of the udhr, social rights encompass everything that is necessary for the individual to develop freely and fully and to lead a life with dignity. another similarity is that, in both conceptions, the concrete content of the mutual legal obligations that must be taken into account to achieve peace, or to achieve an order that guarantees the full development and dignity of individuals, remain undetermined for individuals until the state intervenes and establishes the due conduct between them. this is equivalent to saying that, in both perspectives, the state is seen as configuring the legal order that the individual rights in question do not create. this generates the third and most important similarity: both conceptions see the state as the entity that must monopolize the management of individual interests represented in subjective rights. from this point of view, the state must have the power to intervene in the economy and to decide how and to what extent individual interests and desires can be satisfied, as they are in a permanent state of tension and conflict because of the competition for scarce resources. 5. final remarks the idea that the udhr’s conception of social rights, just like hobbes’s conception of natural rights, gives the state a vast power to intervene in individual decisions seems somewhat paradoxical when set against the main objective that motivated the creation of the udhr. the purpose of drafting the udhr was to create a universal moral code that would serve to prevent the recurrence of atrocities and barbaric acts such as those perpetrated by totalitarian nazi and fascist states during world war ii. historical events such as the holocaust demonstrated the great threat that could be posed to human beings by a state with excessive power over their lives and freedoms. to achieve this goal, which was subsequently enshrined in the second clause of the preamble of the declaration, the idea was to create a document that would function as a navigation chart to ensure that no institution or individual would violate the inalienable rights of people around the world ever again. at the first session of the drafting committee, wilson, the representative of the united kingdom, emphasized the importance of the historical situation in which this collegiate body had met: “it was one, he said, where germany and other enemy countries javier f. hernández, santiago dussan the age of human rights journal, 17 (december 2021) pp. 173-195 issn: 2340-9592 doi: 10.17561/tahrj.v17.6572 193 during the war had completely ignored what mankind had regarded as fundamental human rights and freedoms. the committee met as a first step toward providing the maximum possible safeguard against that sort of things in the future.” (e/cn.4/ac.1/sr.7/p. 5). if the main objective of the udhr was to establish a charter of individual rights that would serve as a limit to state power, whose excesses had resulted in acts abhorrent to the conscience of humanity, it seems partly contradictory that the document should have given states themselves the leading role in determining the specific content and manner of fulfillment of an important group of human rights. moreover, the fact that the drafters refrain completely from attaching a specific meaning to the phrases ‘human dignity’ and ‘free development of personality’ meant that it was also left to the states to define the foundations of all the rights contained in the document, whether socioeconomic, civil or political. the findings of this study highlight the difficulty of reconciling the following two assertions: 1. the fundamental objective of the udhr is to keep state power in check and to prevent abuses against the individual. 2. the udhr attributes to the state the powers to define the concrete meaning of the foundations of human rights, to define the specific limits of social rights, and to intervene in the economy to decide how resources should be allocated for the fulfillment of all the human rights contained in the document. references curran, e. 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(1918) tratado de las leyes y de dios legislador. madrid: reus. tierney, b. (2004) ‘the idea of natural rights-origins and persistence’, northwestern journal of international human rights, 2(1). https://scholarlycommons.law .northwestern.edu/njihr/vol2/iss1/2 tierney, b. (2008) ‘historical roots of modern rights: before locke and after’, in frohnen, b. and grasso, k. (eds) rethinking rights: historical, political, and philosophical perspectives. university of missouri press, pp. 34–57. vitoria, f. (1934) commentarios a la secunda secundae de santo tomas. madrid: asociación francisco de vitoria. received: july 1st 2021 accepted: september 3rd 2021 https://scholarlycommons.law.northwestern.edu/njihr/vol2/iss1/2 https://scholarlycommons.law.northwestern.edu/njihr/vol2/iss1/2 hobbes and the economic, social and cultural rights of the universal declaration of human rights 1. introduction 2. hobbes’s concept of natural rights 3. the concept and foundations of economic, social and cultural rights in the udhr 3.1 article 22 3.2 article 23 3.3 article 24 3.4. article 25 3.5. article 26 3.6. article 27 3.7. the free and full development of personality and human dignity as pillars of the economic, s 4. main thesis 5. final remarks references assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 148 assessing the roles of race and profit in the mass incarceration of black people in america williams c. iheme* “and in the final analysis, a riot is the language of the unheard. and what is it that america has failed to hear? it has failed to hear that the plight of the negro poor has worsened over the last few years. it has failed to hear that the promises of freedom and justice have not been met. and it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice, equality, and humanity. so in a real sense, our nation’s summer’s riots are caused by our nation’s winters of delay. and as long as america postpones justice, we stand in the position of having these recurrences of violence and riots over and over again.” —martin luther king jr, the other america, a speech delivered on april 14 1967, at stanford university. abstract: shortly after the alleged discovery of america and its vast expanse of land waiting to be cultivated with cash crops using cheap human labor, millions of africans fell victims and were kidnapped to work as slaves in american plantations for about four centuries. even though it has been over 150 years since the official abolition of slavery in america, the effects of the 400 years of enslavement continue to reverberate: irrespective of the blackletter rights protecting black people from injustices, the deep racist structures typically decrease the potency of these rights, and thus perpetuate oppression. this article assesses the roles being played by race and profit in the administration of criminal justice: it deems the systemic oppression of black people as a humanitarian crisis and seeks to ascertain this by interpreting the attitudes of the various key players in the american criminal justice system, the majoritarian population, mainstream media, and corporate america: it challenges some entrenched racist practices suspected to be the umbilical cord that links black people in america with mass incarceration. keywords: black people, racism, oppression, violence, police brutality, prison, bail-bond premiums, mass incarceration, mainstream media, protests. summary: 1. introduction: what does history tell us? 1.1. the aim of writing and the underlying questions. 1.2. justification for the choice of questions. 2. the observations from which the questions emerged. 2.1. first observation: the near-impotence of blackletter rights. 2.2. second observation: police brutality of black people is a superstructure. 2.3. third observation: the majoritarian attempt to seek equity and justice with unclean hands. 3. analysis of the questions and observations through the lenses of race & profit. 3.1. does race play a role in the administration of criminal justice? 3.1.1. what do the statistical data say? 3.1.2. are some prosecutors and forensic experts compromised? 3.1.3. biased mainstream news * llb., llm., sjd., associate professor of law, o.p jindal global university, india. i am grateful to samuel uzoma iheme and bridget ngozi iheme for providing the resources that enabled me to conduct this research. i am also grateful to the two anonymous reviewers for their helpful comments on an earlier draft of this paper. however, any errors or mistakes in this paper are my own. i can be reached via email: wciheme@jgu.edu.in; williamsiheme@gmail.com. wciheme@jgu.edu.in williamsiheme@gmail.com williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 149 reporting? 3.1.4. support from white supremacists? 3.1.5. george floyd’s death: a mirror-image of police brutality in america. 4. the role of profit in mass black incarceration. 4.1. reimagining the 13th amendment: the slave plantations rose from the ashes to become the american prisons. 4.2. the cash bail system. 4.3. who own the stocks of the prison and bail-bond corporations? 5. conclusion: protests yield more and better rights. 1. introduction: what does history tell us? by definition, economic resources are scarce and finite, and the satisfaction of basic needs including to finance warfare in protection of territories partly motivated fifteenth century european adventurers to travel the globe in search of capital. in relation to the african experience, one of the earliest episodes of cross continental trades was underscored in the economic transactions between africans and the portuguese, when the latter arrived in west africa sometime in 1471 to source for gold and other resources.1 however, in respect of trade, the scale of unfair exchange between the portuguese and africans paled into insignificance when compared to the more brutal experience following the ‘discovery’ of america by christopher columbus and his men in 1492.2 the vast expanse of land in america awaiting cultivation with cash crops required extremely cheap human labor:3 this could not be satisfied by sole use of the indentured white servants from europe4 or the native americans who proved quite difficult to subdue owing to their thorough familiarity with the terrain and adaptability of the environment which gave them more immunity against the diseases compared to their european counterparts. after some years of experiments with the native americans, it became clearer to the european adventurers that kidnapping africans especially those in the western region was more likely to offer a reliable assurance of labor supply at the scale that was needed to cultivate sugarcanes, tobacco, cotton, etc., on the vast space of land: africans unlike the native americans were thus unfamiliar with the american terrain, and owing to the long distance as well, found it impossible to escape back to africa. also, based on their tropical positionality, west africans were already experienced farmers and were thought to have the exact skills needed to cultivate cash crops in america. biased historians might say that the 400 years of kidnapping africans to america was in the context of trade on the basis that africans had the mental and age capacities to decide what exactly was profitable or beneficial to them: thus the alleged preference of rum, mirror, combs, and other items 1 felipe fernández-armesto, ‘exploration and navigation’ in: hamish scott (ed), the oxford handbook of early modern european history, 1350 1750: volume ii: cultures and power (oxford university press, 2015), p.177. 2 ibid, p.187. 3 ibid, p.178. 4 david w. galenson, ‘white servitude and the growth of black slavery in colonial america’ (1981) 41(1) the journal of economic history, pp. 39-47. 5 stanley alpern, ‘what africans got for their slaves: a master list of european trade goods’ (1995) 22, history in africa, 5-43, p.6. assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 150 of exchange over their own loved ones without accompanying threats or use of force is challenged to be factually inaccurate.5 historical narratives that portrayed early european trades with the invaded africans as fair, on the basis that the latter reasonably acted in their best interests resemble the justifications that are littered in francisco de vitoria’s writings which justified the lootings of columbus and the brutality against the native americans:6 international law bears the birth marks of invasions of peoples by early european adventurers, such as columbus and his men, who traveled the globe under state sponsorships to aggressively acquire capital. as explicated by sven beckert, ‘slavery was the expropriation of indigenous peoples, imperial expansion, armed trade, and the assertion of sovereignty over people and land by entrepreneurs at its core.’7thus, beckert’s thesis (which this paper also agrees with) disagrees with imperial concepts such as terra nullius and other types of brutal practices which became the bedrock of customary international law: these practices were used to justify the invasions of the native americans and africans who were forced to allow the european adventurers to ‘trade’ with them, since resistance from the local population was regularly deemed an act of war which justified the use of force to subdue the people, take their resources and treat them as prisoners of war (slaves). all these arguably debunk the concept of trade in the context of slavery.8 slavery was hereditary,9 and if one was enslaved, the servitude survived into their offspring. slaves were not taught to read and write, and given their cultural and language diversity, there was initially no common language of communication available to air grievances, let alone organize any meaningful resistance or revolution: enslaved mothers tried to teach their offspring their original language from africa, but these only produced more diversity among the enslaved people who initially relied mainly on sign language for communication. thus it took nearly two centuries into the slave trade before new generations of the enslaved black people could begin to organically learn english vernaculars based on their observations and hearing of their masters’ discussions or instructions, and it is therefore not surprising that the first major uprising was the stono rebellion in 1739:10 evidently, this was possible due to a common language of the planners and participants of the protests in successfully organizing and executing their plans. this particular achievement in 1739, set the ball rolling for other revolutions that finally crystallized to freedom and liberty in 1865. 6 christopher columbus, ‘letter of columbus on the first voyage’, in cecil jane (ed. and trans.), the four voyages of columbus (new york: dover, 1988), i, p. 1 (expressing gratitude to queen isabella and assuring that he had taken possession of the ‘discovered’ territory without any resistance). 7 sven beckert, empire of cotton: a new history of global capitalism (penguin, 2014), p. xv. 8 anthony anghie, sovereignty, imperialism and international law (cambridge university press, 2005) pp. 19-23. 9 arnold m. jones, ‘slavery in the ancient world’ (1956) 9(2) the economic history review 185, at p.198. 10 edward a. pearson, ‘a countryside full of flames’: a reconsideration of the stono rebellion and slave rebelliousness in the early eighteenth-century south carolina low country, slavery & abolition’ (1996) 17(2) a journal of slave and post slave studies, pp. 22-50. michael mullin, africa in america: slave acculturation and resistance in the american south and the british caribbean (university of illinois press, 1995) pp.1736-1831. williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 151 biased historians typically present the abolition of slavery as being the idealistic product of international law championed by william wilberforce and his friends. however, in deference to marxism, legal rules are hardly products of idealism but of those emanating from class struggles and a system’s experiments with the factors of production. thus a marxist perspective11 to abolition which is similar to that of eric williams in his classical text of capitalism and slavery,12 could assist in challenging the mainstream narrative on two main accounts. first, the enslaved people did not enjoy the brutal experience and evidently revolted in many subtle ways regardless of the consequences which often were capital punishments by their owners.13 yet notwithstanding the zero tolerance of slave masters and their constant machinations to dim the sight of their slaves toward appreciating the enshrined concepts of human rights, the subtle resistances eventually accumulated into major uprisings: the stono rebellion, new york city conspiracy of 1741, gabriel’s conspiracy of 1800, german coast uprising of 1811, nat turner’s rebellion of 1831, etc.: all these made it significantly uncomfortable and unsustainable for the slave masters to continue their brutality and oppression against the enslaved people.14 second, as hinted earlier, one of the motivations of the state-sponsored voyages in aggressive search of capital across the globe was to help finance the expensive wars that characterized the history of europe for several centuries, which partially gave rise to the treaty of westphalia in 1648: wars, annexations of territories and enslavement of prisoners of war were common experiences that unsettled the minds of rulers and their subjects, and in order not to appear vulnerable to surrounding enemies, it was important to showcase wealth, military might, and technology, a sort of ex ante warnings to potential enemies. perhaps, it was this type of hostile environment, sometimes lasting for centuries at an unbroken stretch as observed by bs chimni15 that motivated state-sponsored science and technology researches: one piece of a newly discovered technology gave the nation a military or an economic upper hand against its neighbors. the industrial revolution in the eighteenth century was born out of this frantic race to the top, and the use of machines to produce goods and services at a much faster rate meant that economically, it continuously yielded lesser profits to charter and use slaves to perform what machines could do better.16 the decrease in demand for slaves meant that slave trade became incapable of financing the months of expeditions on the high sea: this became the entry point for the abolition of slavery, which accords more with a marxist explanation than the idealistic account that 11 ernest mandel, introduction to marxism (pluto press, 1982) ch. 14. 12 eric williams, capitalism and slavery (university of north carolina press, 1944), 11. 13 cf. mandel (n 11) at 146. 14 wim klooster, ‘slave revolts, royal justice, and a ubiquitous rumor in the age of revolutions’ (2014) 71(3) the william and mary quarterly 401-424. 15 bs chimni, international law and world order: a critique of contemporary approaches (cambridge university press, 2nd edn, 2017), p. 486. 16 barbara l. solow, “capitalism and slavery in the very long run,” (1987) 17 journal of interdisciplinary history 732; jospeh e. inikori, ‘market structure and the profits of the british atlantic trade in the late eighteenth century’ (1981) 41 journal of economic history 745-76. assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 152 favors international law, religious conviction and the moral altruism of wilberforce and his friends.17 within america, one of the factors that contributed to the abolition of slavery was the political and economic divide of the southern and northern parts: the former had richer land resources and profited enormously from the workhorse of slavery unlike their northern counterpart. britain also benefitted enormously from slave trade, although abolished it in 1807, long before america did in 1865.18 however, following the outcome of the war of 1812 in which the thirteen british colonies in the south had united to resist the british oppression and rule: the latter, renowned for its naval and shipping power during this period, and backed morally by its own abolition of slavery in 1833, took steps to curtail america’s rising power which was propelled by slave trade via the cultivation of cash crops on its vast expanse of land. internally as well, the north and south tensions continued to brew, resulting eventually to the civil war between 1861-1865. it is not therefore surprising that president abraham lincoln who ran for presidency in 1860 on pro-abolition manifestoes, won. by this time, and in search of freedom, many of the slaves in the south started to escape to the north to join the latter’s military, which ultimately boosted their overall military strength. lincoln’s winning further triggered the south to secede and fight the civil war, and by 1863, lincoln abolished slavery which was the workhorse of the south; although this did not take practical effects until 1865 following the birth of the thirteenth amendment: i.e., the abolition of slavery in america. the essence of the forgoing historical analysis is twofold: to concretely establish or reemphasize that slavery in america was exclusively motivated by profit: the south cultivating a vast expanse of land with cheap human labor, an envious condition that later annoyed both external enemies (britain) and internal enemies (the north). also in deference to the profit argument, the emergence and use of machines to produce more goods and services in order to sell at competitive prices and make more profit, meant that chartering and maintaining slaves were no longer profitable. the rest of the paper argues how and why black people in america are entangled in this profit and race narratives which reverberate in the criminal justice system and how they are perpetuated through the occlusion of non-mainstream accounts.19 1.1. the aim of writing and the underlying questions this paper aims at raising consciousness among the american public and observers interested in the concepts of human rights, relating more specifically to the deep structures 17 for further thoughts on how agitations of marginalized peoples typically result into emancipation as opposed to interventions from international law, see bs chimni, ‘international law scholarship in postcolonial india: coping with dualism’ (2010) 23(1) leiden journal of international law 23, p. 23. 18 kenneth morgan, slavery, atlantic trade and the british economy, 1660-1800 (cambridge university press, 2000), pp. 29-35, 47-50. 19 see generally, edwin baker, media, markets and democracy (cambridge university press, 2002) pp. 6395; michael o’rielly, ‘defending capitalism in communications’ federal communications commission (february 12 2016). available at https://www.fcc.gov/news-events/blog/2016/02/12/defending-capitalismcommunications> https://www.fcc.gov/news-events/blog/2016/02/12/defending-capitalism-communications https://www.fcc.gov/news-events/blog/2016/02/12/defending-capitalism-communications williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 153 of racism in america and how these have unfairly shaped the culture which often emasculates or obscures the visibility of casual or external observers to the problem.20 in the paper’s view, part of the reason america’s acts of racism often go unnoticed or unchallenged hinges on its heavy investments in mass media communications, often seeking to protect the economic and political interests of those who control the american wealth.21 the paper also observes that black people are systemically marginalized and oppressed, incarcerated en masse, and all these obstruct their collective progress while at the same time oiling the economic interests of those who profit from their incarceration. the paper keeps the role of profit in american culture throughout the analysis to enable the reader understand how legal rules and interpretations of same in america are often created to protect capital and interests of the majoritarian population while the black people functionally remain items of commodity that generate wealth in american prisons, reechoing the experiences of their ancestors in the american slave plantations. yet the core aim of the observations and analysis is to show that historically, no marginalized and brutalized people have enjoyed the experience: the profits of counter-resistance which are often not documented by biased historians, show that protests and agitations are the tested means of acquiring rights or better rights, which this paper argues are hardly the byproducts of idealism but realism. the following questions provide guidance to the inquiries undertaken in this paper. they seek to know: a. whether the american police enjoy any form of support from white supremacists (individuals and corporations) in the brutality, arrest, and the mass incarceration of black people: in truth, could it said that the majoritarian population oppose acts of violence and theft which are the labels unilaterally assigned to black people in the context of their resistance and protests against systemic oppression? (the “role of race”),22 and; b. whether some individuals, policemen, congressmen, judges, and key officials in the criminal justice system, somehow make profit from the mass incarceration of black people, either as shareholders of the bail-bond and prison corporations or as direct recipients of bribes (including lobbying or financial contributions for political campaigns) from the controlling shareholders and managers of american corporations? (the “role of profit”).23 1.2. justification for the choice of questions based on keen observations of the mainstream media and everyday life in america, the paper develops at least two questions that undeniably underline the black people’s experiences in america.24 the questions help the reader reflect on the racist treatments 20 cf. baker (n 19) at pp. 245-276. 21 ibid. 22 see floyd weatherspoon, ‘racial injustice in the criminal justice system’, in: african-american males and the u.s. justice system of marginalization: a national tragedy (new york: palgrave macmillan, 2014) pp. 17-18. 23 see generally, tera herival and paul wright, prison nation: the warehousing of america’s poor (routledge, 2003). assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 154 against black people which constantly manifest in many shapes and forms including police brutality and mass incarceration. in effect, the questions seek to understand why the ‘black body’ in america has become a metaphor for oppression, hate, violence, and even poverty. if answers to the questions are attempted from the top or unfairly analyzed to suit biased interests of the majoritarian population, the outcome is likely to suggest that black people in america are troublemakers and criminally minded individuals judging from the statistics of imprisonment:25 this perspective currently appears to be mainstream based on the data that constantly swells itself owing largely to the deep racist structures. however, if the questions are approached from history, and how protection of economic interests has always culminated into unfair legal rules, their interpretation and enforcements, one realizes that what is seen as a violent behavior of a black person is often their resistance against oppressions, chiseled deeply in the justice and economic systems, which continue to keep them at the periphery since the fifteenth century.26 in any event, the paper observes that the alleged bad behavior or acts of violence ascribed to black people by the mainstream narrative, pale into insignificance when compared with america’s violence and theft of resources around the globe. 2. the observations from which the questions emerged 2.1. first observation: the near-impotence of blackletter rights keeping in mind the historical circumstances surrounding the existence of black people in america, this paper attempts a sketch of events between 1865 i.e., the thirteenth amendment to the american constitution which was the first time black people came in contact with the concepts of human rights, and the contemporary times. the paper observes that president lincoln’s winning in 1860 which signaled an economic destruction of the south, and the eventual commencement of the civil war, helped to finally trigger the abolition of slavery. for the southerners whose economy depended largely on slavery, the abolition was a bad news and up till today the umbilical cord linking the economic interests of the south (america) and the exploitation, as well as the emancipation struggles of black people remains to be fully severed. in the interim, this condition could help offer explanations as to why racial discriminations, judicial biases, and police brutality still reverberate in the justice and economic systems irrespective of black-letter rights to the contrary.27 24 on the predominant types of experience of black males in america: cf. floyd weatherspoon (n 22) pp. 3-7. 25 ibid, p.9. also see naacp, ‘criminal justice fact sheet’. available at <https://www.naacp.org/criminaljustice-fact-sheet/> 26 cf. floyd weatherspoon (n 22) p. 91. 27 andrea orr, ‘economic policy institute why do black men earn less?’ (march 3, 2011). available at: <http://www.epi.org/publication/why-do_black_men_earn_ less/> https://www.naacp.org/criminal-justice-fact-sheet https://www.naacp.org/criminal-justice-fact-sheet http://www.epi.org/publication/why-do_black_men_earn williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 155 for instance, following the thirteenth amendment, the fourteenth amendment in 1868 granted citizenship to the formerly enslaved people and ‘equal protection of the law’, and the fifteenth amendment in 1870 granted black people the right to vote. however, all these rights were functionally defeated by the machinations of the american criminal justice system at that time which grappled hard with the concepts of racial equality. american judges readily found ways to bypass the black-letter rights through various rules of statutory interpretations: even after three decades of abolition, in 1896, the court in plessy v ferguson28 ruled that racial segregation in schools was indeed not a violation of the fourteenth amendment’s equal protection clause. the paper observes that even though the thirteenth to fifteenth amendments had enshrined concepts of human rights which purportedly benefitted black people, functionally these rights were defeated by the deep structural racism that took centuries to crystallize: between 1865 to 1954 (brown v board of education of topeka)29 and 1964 (the civil rights act), a period of 100 years endured, and was characterized with strong agitations for racial equality by black people. even though the situation for black people in the contemporary america has arguably30 improved compared to the previous centuries, one persistent experience for them remains the weakness of blackletter rights and the deliberate reliance on legal gaps and rules of interpretation to occasion injustice when a black person is interacting with the criminal justice system compared to their white american counterparts. 2.2. second observation: police brutality of black people is a superstructure from a cause and effect analysis, police brutality of black people in america is only the end product of the underlying deep structures of racism that took centuries to establish: thus in probing incidents of brutality it is important not to lose sight of the historical underpinnings. from observations, the frequency as well as the inhuman styles through which police brutality manifest are indicative of its solid taproots in american (mainstream) culture: for instance, the regular excuse furnished to exonerate policemen who extra judicially kill black people: that they were just ‘a few bad apples’ in the system who do not represent the ideals of the police force.31 needless to say that police brutality or misconduct is not a recent phenomenon in the american culture and experience, and 28 163 u.s. 537 (1896). 29 347 u.s. 483 (1954). 30 however, see a study by the u.s. glass ceiling commission, reporting that: ‘african-american men are stereotypically perceived as lazy/undisciplined/ always late/fail to pay their taxes/unqualified but protected by affirmative action/violent/confrontational/emotional/hostile/aggressive/unpredictable/ unable to handle stressful situations/threatening/demanding/militant/loud/ and less intelligent than other racial or ethnic groups.’ see u.s. census bureau, statistical abstract of the united states (2012). available at: <http:// wwcensus.gov/population/www/socfemp/school.html> 31 on the ‘bad apple’ defense, see chiraag bains, ‘a few bad apples’: how the narrative of isolated misconduct distorts civil rights doctrine’ (2018) 91(1) indiana law journal 29, 30-35; michael c. dorf, ‘iqbal and bad apples’ (2010) 14 lewis & clark law review 217, pp. 218–19; damien s. donnelly-cole, ‘note, not just a few bad apples: the prosecution of collective violence’ (2006) 5 washington university global studies law review 159, pp. 78–85. http://wwcensus.gov/population/www/socfemp/school.html http://wwcensus.gov/population/www/socfemp/school.html assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 156 already bothered the supreme court as far back as boyd v united states.32 but in deference to history which has earlier been analyzed, one realizes that the american wealth is inextricably linked to oppressive subjugations with the excessive use of force and arms: a cultural practice of slave patrollers33 that has reincarnated as police brutality.34 before the twenty-first century, knowing the existence and scale of police brutality in america was only possible through print materials which were largely written and censored by those who defer largely to the protection of capital.35 in fact, as of the civil rights movement in 1964, even though video cameras were already in existence and helped to capture the government’s excessive force, using water cannons, police dogs, live arms, thick wooden batons, etc., to dispel and quell peaceful protests against racial inequality; those videos only started to surface in the last two decades for global consumption following the advent of the internet, youtube, and other social media platforms. what this shows in large part is that the global consciousness of police brutality in america and the appreciation of its inhuman scale were only made possible by the internet: perhaps this could assist non-black communities appreciate the alarming scale of the brutal experiences of black people in america since the past 500 years. yet irrespective of the emergence of the internet, virtual private network, smart phones, etc., which help to showcase the oppressive tactics of the american government and its law enforcement agencies almost as they occur, the reactionary supports of some americans (white supremacists) against racial equality and the mainstream media are informative, and indicative of the fact that police brutality is indeed the window through which the machinations of the american system against black people find actual expressions: perhaps this further helps to explain why police brutality, irrespective of its obvious conflicts with the concepts of human rights, rule of law and democracy (which the american government professes to defend), has not been meaningfully addressed. as earlier argued, part of what nourishes police brutality in america is the tacit support from white supremacists and the american mainstream media: arguably, the latter are owned largely by white americans and have often been used to control narrative which precisely aims at shaping the consciousness and thoughts of the american people.36 since it has been established above that police brutality has been an integral part of doing business and making profits in america, this could explain why the mainstream media which are largely owned by big businesses and rich americans report mainly to protect the economic interests of their financiers instead of the human rights protection of black 32 the american supreme court had already addressed against issues of police brutality more than 130 years ago in boyd v united states (1886) 116 u.s. 616, 630, regarding “the indefeasible right of personal security, personal liberty and private property.” 33 k. b. turner, david giacopassi & margaret vandiver, ‘ignoring the past: coverage of slavery and slave patrols in criminal justice texts’ (2006) 17(1) journal of criminal justice education, 181-195, 185. 34 cf. sven beckert (n 7), p. xv. 35 cf. baker (n 19) at pp. 63-95. 36 mary b. oliver, ‘portrayals of crime, race, and aggression in “reality-based” police shows: a content analysis’ (1994) 38(2) journal of broadcasting & electronic media, pp. 179-192. williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 157 people, the denial of which, in fact, helps ensure the maximization of profit.37 again, from the perspective of profit, it is not therefore surprising that the mainstream media reporting on a police person’s wrongful arrest and extra-judicial killing of a black person irrelevantly focus on the deceased person’s records, such as preexisting health conditions, any past criminal act, family life, etc., instead of reporting or commenting on the actual facts of the homicide.38 self-evidently, this prevalent red-herring approach of focusing on irrelevancies is typically designed to forcefully impress on the public’s (sub)consciousness that the deceased somewhat deserved their death. as bryan adamson observed,39 biased media reporting could also help in shaping the thought and decisions of the jury who are drawn from the public and majorly from the white american community: it is not therefore surprising that in the key police brutality cases analyzed below, the jury, regardless of the compelling evidence of wrongful arrests and killing of the deceased black persons, ruled that there was no triable offence and consequently exonerated the accused police officers. in line with cynthia lee’s view, this overwhelming amount of support for the police translates into a carte blanche for more brutality of black people, an upfront assurance by the criminal justice system on the inherent lack of consequences for current or future acts of brutality.40 2.3. third observation: the majoritarian attempt to seek equity and justice with unclean hands historically, or imagined from the marxist standpoint, human rights are simply the byproducts of the constant class struggles between the powerful and the weak, between the haves and the havesnot, and between those who profit from a status quo and those who suffer from it.41 the outcome of the balancing and rebalancing of struggles give birth to rights in the hohfeldian sense.42 in the case of black people in america, the various human rights starting from the thirteenth amendment have emerged through class struggles, and each acquired right, of course reduces the wealth of those who previously profited from the denial of that particular right and its associated privileges. 37 paul klite, robert a. bardwell, jason salzman, ‘local tv news: getting away with murder’ (1997) 2(2) harvard international journal of press/politics 102-112, at p.103 (citing how profit plays a role in american news reporting). 38 travis l. dixon, ‘black criminals and white officers: the effects of racially misrepresenting law breakers and law defenders on television news’ (2007) 10(2) media psychology, pp. 270-291. 39 bryan adamson, ‘thugs, crooks, and rebellious negroes: racist and racialized media coverage of michael brown and the ferguson demonstrations’ (2016) 32 harvard journal on racial & ethnic justice 189, p. 193. 40 cynthia lee, ‘a new approach to voire dire to racial bias’ (2015) 5 uc irvine law review 843, pp. 843-847, 860-867 (discussing issues of implicit bias in mass media and among members of the jury in the american criminal courtrooms). 41 karl marx, capital: a critique of political economy (new york: international publishers, 1967), i: 361 (‘slavery is just as much the pivot of bourgeois industry as machinery, credits etc. without slavery you have no cotton; without cotton you have no modern industry.’). 42 thomas d. perry, ‘paradigm of philosophy: hohfeld on legal rights’ (1977) 14(1) american philosophical quarterly, 41-50. assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 158 indeed, struggles for a better set of rights are normally works-in-progress: the fact they encounter oppositions is indicative that they are legitimate and beneficial struggles: this explains why black protesters in america are derogatorily labelled as ‘thugs’, ‘crooks’, and ‘looters’ by the mainstream media or majoritarian population toward discouraging or desecrating their agitations as well as paving way for the brutal use of force in quelling their protests.43 from observations, during each protest, many white supremacists in america adamantly insist that what they see is not a peaceful protest, and that while they may accommodate agitations for rights or airing of grievances, engaging in ‘nonpeaceful’ protests will be unacceptable and thus resisted.44 even though it is ridiculous for an oppressive system to unilaterally determine how the oppressed ought to exactly react against its oppression at any given time, majority of the black protests are peaceful and emanate from the heinous acts of injustices and neglect of the criminal justice system to treat black people as their white counterparts: a neglect that could fairly be interpreted as a quasi-endorsement of police brutality, as the cases below, show.45the paper further observes the hypocrisy that is largely resident in the majoritarian criticisms of black protests, and links the hypocrisy to the protection of economic interests. however, to create the façade of a legitimate intervention based on the protection of lives and property, as well as conduct the popular hymn of ‘law and order’, the american government being already experienced in oppression knows exactly how to artificially create justifiable grounds for military intervention, by paving ways for a ‘hijack’ of black protests through control of the narrative or instigating white supremacist groups to obstruct the protests.46 irrespective of these domestic machinations, the unfair critique and designation of black protests as ‘barbaric’ is also rooted in hypocrisy being that the accusers are not realistically opposed to acts of barbarism, violence and thuggery, which deeply characterize america’s loot of assets from around the globe starting from the slave trade to acts of thuggery in vietnam, iraq, afghanistan, and libya.47 unbiased researchers have been able to unearth america’s true motives for the twenty-first century invasions of other countries and linked them with the crude oil resources those invaded countries have in abundance.48 just like its domestic tactics of accusing black people for being ‘barbaric’ and thus proceeding to clamp down on them, it uses similar tactics to justify its loots abroad by first accusing and designating the leaders of those invaded nations as ‘dictators’ and ‘oppressors’ of their own people, in order to trigger article 51 of the united nations charter and consequently invade them on grounds 43 cf. bryan adamson (n 39), pp. 191-193. 44 ibid, pp. 211, 237. 45 this observation is similar to martin luther king’s observation that ‘a riot is the language of the unheard’: martin l. king, jr ‘the other america’ march 14 1968. available at <http://www.gphistorical.org/mlk/ mlkspeech/> 46 jenny jarvie and richard read, ‘amid chaos, some black activists say the message has been hijacked’ the los angeles times (may 30 2020). available at <https://www.latimes.com/world-nation/story/2020-05-30/ have-the-sprawling-protests-against-police-brutality-spiraled-out-of-control> 47 raymond hinnebusch, ‘the us invasion of iraq: explanations and implications (2007) 16(3) critique: critical middle eastern studies, pp. 209–228. 48 ibid, p. 212. http://www.gphistorical.org/mlk/mlkspeech http://www.gphistorical.org/mlk/mlkspeech https://www.latimes.com/world-nation/story/2020-05-30/have-the-sprawling-protests-against-police-brutality-spiraled-out-of-control https://www.latimes.com/world-nation/story/2020-05-30/have-the-sprawling-protests-against-police-brutality-spiraled-out-of-control williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 159 of humanitarian interventions.49 the looted resources are brought back home by corporate america and owned largely (80%) by the majoritarian population, constituting largely the white americans (76.5%)50 most of who ironically claim to oppose acts of violence and looting in the context of black protests, even though america’s violence and theft of the resources abroad often see the reduction of some parts of the invaded countries into rubbles, and destruction of their economic and political structures including the internal displacement of people.51 none of these acts of violence, wrongful killings, and theft of resources abroad have attracted visible condemnation and protests on the streets of america by the majoritarian population, and the inconceivably low level of interest to criticize the government invariably endorses the accuracy of the observation that the unfair criticisms against black protests by the majoritarian population gear toward the protection of economic interests and status quo, and do not reflect any sincere conviction that the protests are inconsistent with human rights, rules of democracy, or any just law in america.52 in any case, based on the hierarchy of rights, the inalienable struggles to protect one’s own life and their loved ones from a systemic destruction are morally superior to those undertaken to protect properties that were largely obtained through unfair means: thus seeking equity and justice towards the protection of property ought to be undertaken with clean hands. 3. analysis of the questions and observations through the lenses of race & profit 3.1. does race play a role in the administration of criminal justice? 3.1.1. what do the statistical data say? data show that although black people in america make up 13.4 % of the total population,53 they are 2.5 % more likely to be murdered by the police than are their white counterparts.54 although police brutality of black people is widespread in america, some states have been observed to be the flag bearers: e.g., california, florida and texas rank 49 thomas yoxall, ‘iraq and article 51: a correct use of limited authority’ (1991) 25 (4) the international lawyer, pp. 967-94. 50 united states census bureau, ‘population estimates’ (july 1 2019). available at: <https://www.census. gov/quickfacts/fact/table/us/pst045219> 51 unhcr, the state of the world’s refugees 2000: fifty years of humanitarian action (geneva: united nations, 2000), 314; alessandro monsutti, “the transnational turn in migration studies and the afghan social networks,” in dawn chatty and bill finlayson (eds.), dispossession and displacement: forced migration in the middle east and north africa (oxford university press, 2010), 47; ashley jackson, “the cost of war afghan experiences of conflict, 1978–2009,” oxfam international (november 2009). available at <https://www-cdn.oxfam.org/s3fspublic/file_attachments/afghanistan-the-cost-of-war_14.pdf> 52 marcus cunliffe, chattel slavery and wage slavery: the anglo-american context, 1830-1860 (athens: university of georgia press, 1979). 53 united states census bureau, ‘black or african american population in the united states’ (2019) <https:// www.census.gov/quickfacts/fact/table/us/ipe120218> 54 wesley lowery, ‘more whites killed by police, but blacks 2.5 times more likely to be killed’ chicago tribune (11 july 2016) < https://www.chicagotribune.com/nation-world/ct-police-shootings-race-20160711-story.html> https://www.census.gov/quickfacts/fact/table/us/pst045219 https://www.census.gov/quickfacts/fact/table/us/pst045219 https://www-cdn.oxfam.org/s3fspublic/file_attachments/afghanistan-the-cost-of-war_14.pdf https://www.census.gov/quickfacts/fact/table/us/ipe120218 https://www.census.gov/quickfacts/fact/table/us/ipe120218 https://www.chicagotribune.com/nation-world/ct-police-shootings-race-20160711-story.html assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 160 as top states where police officers have disproportionately killed black people.55 even in states that majorly have white population, e.g., utah, where the population of black people is estimated to be 1.06% of the total population,56 data collected over an unbroken period of seven years show that the wrongful killings of black people by the police constituted 10 % of the total killings, a clearly disproportionate rate which shows that black people there are about 9.21 times more likely to be killed by the police compared to their white counterparts.57 similarly, in minnesota where george floyd was killed by a police officer, black people there are nearly four times more likely to be killed by the police, and comprise of 20 % of those killed despite being only 5 % of the total population.58 in washington d.c, the american state capital, the black people constitute about 50 % of the total population, and comprised of 88 % of the total police killings, which is a discrepancy of about 38 %.59 in rhode island, the discrepancy rate was about 44 %.60 and about “99 percent of all officers involved in all police killings had no criminal charges pressed against them.”61the above data are only indicative of the existence of the problem: it is fair to assume that some incidents of police extra judicial killings are never reported or even known, or only known exclusively from the bias reporting of the mainstream media.62 in the past when the streets and highways did not have circuit camera televisions, obtaining video evidence of police brutality was difficult and depended heavily on the one-sided account of the police which always narrowed to the typical accusations that the black victim was at the relevant time resisting arrest, fleeing from the scene of crime or was simply being ‘disrespectful’ to the police.63 the above data offer crucial insights that help underline that in nearly all the incidents of wrongful killings of black people, the accused officers were white persons, and just like darren wilson,64 and george zimmerman,65 etc., were not convicted, perhaps due to the dominance of white americans in the criminal justice system as wright, et al 55 mohammed haddad, ‘mapping us police killings of black americans’ aljazeera (31 may 2020) <https:// www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200 5311 057 41 75 7.html>; see generally, williams c. iheme, ‘systemic racism, police brutality of black people in america and the use of violence in quelling peaceful protests in america’ (2020) 15(2) age of human rights journal, 224-262. 56 ibid. 57 ibid. 58 ibid. 59 ibid. 60 ibid. 61 ibid. 62 cf. bryan adamson (n 39), at p. 191. 63 ibid. 64 see jon swaine, et al, ‘grand jury decline to charge darren wilson for killing michael brown’ the guardian (november 25 2014). available at <https://www.theguardian.com/us-news/2014/nov/24/ ferguson-police-darren-wilson-michael-brown-no-charges> 65 cynthia lee, ‘making race salient: trayvon martin and implicit bias in a not yet post-racial society’ (2013) 91 north carolina law review 1557, p. 1590. https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200​5311​057​41​75​7.html https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200​5311​057​41​75​7.html https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200​5311​057​41​75​7.html https://www.theguardian.com/us-news/2014/nov/24/ferguson-police-darren-wilson-michael-brown-no-charges https://www.theguardian.com/us-news/2014/nov/24/ferguson-police-darren-wilson-michael-brown-no-charges williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 161 similarly observed.66 viewed from the theory of reasonable suspicion of bias as wright, et al, have helped to advance, there is hardly any sufficient reason to doubt that race is a critical determining factor in the american criminal justice system.67 thus, the impetus given by the 99% chance of being exonerated after a wrongful killing of a black person manifests in the ugly style of arrest, tackling down, tasing, choking, and killing of unarmed black victims as were witnessed in the deaths of eric garner and george floyd. below, the paper further x-rays the nature of support received by the police following a suspected act of murder of a black person by a white police officer. 3.1.2. are some prosecutors and forensic experts compromised? crimes are deemed to be committed against the state, and it is the state that brings a formal charge against an accused person through its public prosecutors. nearly two centuries ago, chief justice shaw in commonwealth v webster, provided clarity regarding burden of proof.68 the standard of proof in a criminal case is the requirement on the prosecutor to prove its case beyond a reasonable doubt. normally this safeguard is used to protect individuals from being whimsically accused of crimes and consequently thrown into prison: it is a product of good conscience and morality resting on the presumption that a system will be better off in freeing 99 guilty persons than to punish an innocent person. as advanced in re winship,69 the united states’ fifth amendment, and of course, every mature criminal justice system has enshrined this as the right to be presumed innocent until proved guilty following a due process of law. for the black victims of police brutality in america, this constitutional right or safeguard is practically nonexistent and was hardly afforded to them. thus in america, the requirement to ‘prove beyond a reasonable doubt’ has been used as a weapon to subvert justice for black victims of police brutality: even in obvious cases with compelling eyewitness accounts or video evidence, most prosecutors seemed to have deliberately refused to gather sufficient evidence that can satisfy the criminal standard of proof, enough to incriminate an accused police officer who had wrongfully killed a black person. technically, this leads to the 99 % acquittal rate as the publicly available data show. the prosecutors, who are also members of the police force tend to unfairly protect their own: this could be due to their selfish desire to protect a current or future interest in the police force, or simply obeying the wishes of highly placed/rich individuals: wrongful arrests which often lead to the murdering of a resisting black person are the preliminary stages of ensuring their incarceration which ultimately sustains the wealth of the bail-bond and prison corporations. 66 ronald f. wright, kami chavis, gregory s. parks, ‘the jury sunshine project: jury selection data as a political issue’ (vol. 2018) no. 4, university of illinois law review 1407-1442, pp.1435-1441 (discussing issues of race in jury selections). 67 ibid. 68 commonwealth v. webster, 59 mass. 295, 320 (1850). available at <http://masscases.com/cases/sjc/59 /59mass295.html> 69 in re winship, 397 u.s. 358 (1970). available at <http://www.law.cornell.edu/supct/html/historics/ussc_ cr_0397_0358_zo.html> http://masscases.com/cases/sjc/59​/59mass295.html http://masscases.com/cases/sjc/59​/59mass295.html http://www.law.cornell.edu/supct/html/historics/ussc_cr_0397_0358_zo.html http://www.law.cornell.edu/supct/html/historics/ussc_cr_0397_0358_zo.html assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 162 apart from the support shown by prosecutors, coroners and medical examiners who visit crime scenes to collect and test evidence in laboratories have often reasonably shown the capability of manipulating results to suit the narrow interests of the overall police force: in 99 % of the cases, the unilaterally processed ‘scientific’ evidence is used in court to exonerate the accused police officers.70 in the past, when the public relied exclusively on the verdict of the forensic experts, not much could be done after their evidence was announced in favor of the accused police officer: it was largely thought that science had spoken and the cause of death was not intentional homicide but due to some internal disease the black person suffered. agitations of unfairness especially by eyewitnesses started to brew and gain momentum: the witnesses, especially the loved ones of the diseased persons who were present at the scene of crime were certain that the exonerating pieces of evidence were manipulated.71 not even the eggshell skull rule,72 or the rule of thumb that if a matter is self-evident, it requires no further evidence, operated sufficiently to discredit the verdicts of state medical examiners towards incriminating officers who used excessive force to choke a non-resisting (eric garner) or cuffed black person (george floyd) until they were dead: the centuries-long of negative and racist stereotypical images against black people typically helped and still help to justify or exonerate police officers.73 however, with the emergence of the internet and circuit camera televisions which help to capture and record street events, shocking videos of police brutality regularly surge through the internet and circulate widely on the social media. even the execution of george floyd, which was witnessed live by the world, the hennepin county medical examiner’s office autopsy report74 concluded that mr. floyd had ‘no life-threatening injuries to his face, neck, laryngeal and chest wall…and that “arteriosclerotic and hypertensive heart disease; fentanyl intoxication; and recent methamphetamine use” 70 research findings show that a lot of medical examiners have been pressured by their superiors and by other external forces to change their autopsy reports. for a complete report, see judy melinek, et al, ‘national association of medical examiners position paper: medical examiners, coroner, and forensic pathologist independence’ me independence position paper, national association of medical examiners (2013). available at https://name.memberclicks.net/assets/docs/00df032d-ccab-48f8-9415-5c27f173cda6.pdf. 71 see generally, williams r. oliver, ‘the effect of threat of litigation on forensic pathologist diagnostic decision making’ (2011) 32(4) american journal of forensic medical pathology, 383-386; scott luzi, et al., ‘medical examiners’ independence is vital for the health of the american legal system’ (2013) 3(1) academic forensic pathology, pp. 84–92. 72 see robert a. mikos, ‘eggshell’ victims, private precautions, and the societal benefits of shifting crime’ (2006) 105 (2) michigan law review 307-349, at pp. 310, 321-336. 73 darron t. smith, images of black males in popular media, black voices, march 14, 2013, available at http://www.huffingonpost.com/darron-t-smith-phd/black-men-media-b-2844990.html; ronald e. hall, ‘clowns, buffoons, and gladiators: media portrayals of the african-american man’ (1993) 1 journal of men’s studies 239, pp. 242–243 (describing how the mainstream media portray black people); charles m. madigan, ‘racial stereotyping: an old, virulent virus’ chicago tribune (13 may,1992) at 1c (discussing how the mainstream assist in perpetuating the stereotype that black people are prone to committing crimes). 74 see the hennepin county medical examiner’s office autopsy report on george floyd. available at: <https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/floyd-autopsy-6-3-20. pdf> https://name.memberclicks.net/assets/docs/00df032d-ccab-48f8-9415-5c27f173cda6.pdf http://www.huffingonpost.com/darron-t-smith-phd/black-men-media-b-2844990.html https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/floyd-autopsy-6-3-20.pdf https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/floyd-autopsy-6-3-20.pdf williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 163 contributed to his death, as if to partially excuse derek chauvin who from every reasonable indication could be said to have killed floyd intentionally. from antecedents, it will not be too surprising if chauvin is exonerated on the basis of the state-connected autopsy report.75 the manner in which floyd’s death was handled (i.e., the usual media accusations as well as the attitude of the medical examiners) has caused unbiased observers to rethink the soundness of the excuses furnished by the police departments as well as the forensic reports of medical examiners in previous killings of black people, in order to achieve a clearer sight and interpretation of the events: e.g., ascertaining the existence of economic and political interests in the wrongful arrests and incarceration of black people.76 an official investigation by ostrom, et al, for the us department of justice, found that “the average incarceration rate for blacks is 1,547 per 100,000 population, while the average for whites is 188 per 100,000 the incarceration rate for blacks is approximately 8 times higher than for whites. on the surface, these numbers raise the specter of discrimination.”77 discovery of the hidden economic interest in the wrongful arrests of black people also explains why they are often framed-up in order to be charged with the highest possible offence, thus signaling a corrupt judge working for the common economic agenda of mass incarceration to unleash the highest possible punishment. for example, the brutal experience of alfred chestnut, andrew stewart and ransom watkins (the maryland trio) who were wrongfully accused of killing a 14-year old boy and consequently imprisoned in 1984, but released after 36 years of imprisonment on grounds of innocence.78 a similar experience befell ricky jackson who was wrongfully accused, received a death sentence, and imprisoned for 39 years until he was exonerated following a witness’ recantation, citing that the police had pressured him to bear the false witness.79 robert jones who was wrongfully accused of killing a white woman (julie stott) served a period of 23 years until he was released in 2015 even after another man was proven to have committed the offence.80 and so on. 75 cf. (n 70), the report of the national association of medical examiners. 76 adam liptak, ‘black defendants get longer sentences from republican-appointed judges, study finds’ the new york times (may 8 2018). available at https://www.nytimes.com/2018/05/28/us/politics/blackdefendants-women-prison-terms-study.html 77 charles w. ostrom, brian j. ostrom, matthew kleiman, ‘judges and discrimination: assessing the theory and practice of criminal sentencing’ (february, 2004), p.5. available at <https://www.ojp.gov/ncjrs/virtuallibrary/abstracts/judges-and-discrimination-assessing-theory-and-practice-criminal> 78 bbc, ‘mayland trio set free after being jailed for 36 years’ bbc news (26 november 2019) <https:// www.bbc.com/news/world-us-canada-50557396> 79 philip sherwell, ‘america’s longest serving innocent prisoner receives $1 million for 39 years in jail’ the telegraph (15 march 2015) <https://www.telegraph.co.uk/news/worldnews/northamerica/usa/11485165/ americas-longest-serving-innocent-prisoner-receives-1m-for-39-years-in-jail.html>; see national registry of exonerations, ‘ricky jackson’ (5 november 2020) <https://www.law.umich.edu/special/exoneration/ pages/casedetail.aspx?caseid=4553> 80 aleem maqbool, robert jones locked-up for 23 years when the real killer had already been jailed’ bbc news, <https://www.bbc.co.uk/news/resources/idt-5ad914e1-afed-4e0d-b7ab-754bf3d0b1e6> https://www.nytimes.com/2018/05/28/us/politics/black-defendants-women-prison-terms-study.html https://www.nytimes.com/2018/05/28/us/politics/black-defendants-women-prison-terms-study.html https://www.ojp.gov/ncjrs/virtual-library/abstracts/judges-and-discrimination-assessing-theory-and-practice-criminal https://www.ojp.gov/ncjrs/virtual-library/abstracts/judges-and-discrimination-assessing-theory-and-practice-criminal https://www.bbc.com/news/world-us-canada-50557396 https://www.bbc.com/news/world-us-canada-50557396 https://www.telegraph.co.uk/news/worldnews/northamerica/usa/11485165/americas-longest-serving-innocent-prisoner-receives-1m-for-39-years-in-jail.html https://www.telegraph.co.uk/news/worldnews/northamerica/usa/11485165/americas-longest-serving-innocent-prisoner-receives-1m-for-39-years-in-jail.html https://www.law.umich.edu/special/exoneration/pages/casedetail.aspx?caseid=4553 https://www.law.umich.edu/special/exoneration/pages/casedetail.aspx?caseid=4553 https://www.bbc.co.uk/news/resources/idt-5ad914e1-afed-4e0d-b7ab-754bf3d0b1e6 assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 164 3.1.3. biased mainstream news reporting? needless to say, the mainstream media in america are largely owned by the majoritarian (white) population, and media corporations in their artificial personhood can only carry out the wishes of their majority shareholders.81 corporate directors in deference to company law rules, corporate by-laws and practices also owe their corporations a set of fiduciary duties which require performance of activities that enhance the corporate interests, objects, and value. in the circumstance, part of enhancing the corporate value is of course to ensure that news reports are not directly or indirectly inimical to the economic or political interests of the majority shareholders. in relation to black protests which are often feared to be the entry point of destroying properties, the mainstream media seeking to protect the economic interests of the majoritarian population from which demographic their majority shareholders are mainly drawn, unfairly report about the events of police wrongful killings in order to prevent ex ante, any protests that might erupt to unsettle or damage properties.82 the unfair or bias reporting manifests in various forms, involving sometimes the presentation of pixelated pictures of police brutality, or extremely short videos of the events in a fast and haphazard motion, etc., all of which are insufficient for viewers to make any reasonable interpretation of what happened. also, the mainstream media are reputed for their red-herring tactics aimed precisely at sowing strong seeds of doubt in the minds of the public and jury toward exonerating the accused police officers: they achieve this by digging and presenting irrelevant pieces of information, such as any of the deceased past criminal record, family life, health, mugshots, etc., just to show that the victim’s death was not such a bad loss, especially when the elegant photographs of the police murder suspect are littered in juxtaposition toward suggesting their reasonability and higher value status. incidentally, all these tactics and machinations of the mainstream media weigh heavily on the mind of the jury83 who hand in exonerating verdicts in 99 % of the time. 3.1.4. support from white supremacists? the american culture is built on the concept of ‘white privilege’:84 as thomas jefferson unapologetically put it, the ‘blacks are inferior to the whites in the endowments 81 see richard hatcher, “mass media and the black community” (1973) 5(1) the black scholar, 2–10; kate vinton, ‘these 15 billionaires own america's news media companies’ forbes (1 june 2016). available at <https://www.forbes.com/sites/katevinton/2016/06/01/these-15-billionaires-own-americas-news-media -c o m panies/?sh=430103a6660a> ; howard french, ‘the enduring whiteness of american media’ the guardian (25 may 2016). available at https://www.theguardian.com/world/2016/may/25/enduringwhiteness-of-american-journalism> 82 cf. bryan adamson (n 39), pp. 205-207. 83 see jeffrey fagan & bernard e. harcourt, ‘fact sheet: questions and answers for columbia law school students about grand juries, columbia law school (november 26, 2014). available at: <https://www.law. columbia.edu/news/archive/fact-sheet-michael-brown-case> 84 sylvia a. law, ‘white privilege and affirmative action’ (1999) 32(3) akron law review <https://www. uakron.edu/dotasset/726850.pdf>; peggy mcintosh, ‘white privilege: unpacking the invisible knapsack’ independent school (winter 1990) <https://www.racialequitytools.org/resourcefiles/mcintosh.pdf> https://www.forbes.com/sites/katevinton/2016/06/01/these-15-billionaires-own-americas-news-media​-c​o​m​panies/?sh=430103a6660a https://www.forbes.com/sites/katevinton/2016/06/01/these-15-billionaires-own-americas-news-media​-c​o​m​panies/?sh=430103a6660a https://www.theguardian.com/world/2016/may/25/enduring-whiteness-of-american-journalism https://www.theguardian.com/world/2016/may/25/enduring-whiteness-of-american-journalism https://www.law.columbia.edu/news/archive/fact-sheet-michael-brown-case https://www.law.columbia.edu/news/archive/fact-sheet-michael-brown-case https://www.uakron.edu/dotasset/726850.pdf https://www.uakron.edu/dotasset/726850.pdf https://www.racialequitytools.org/resourcefiles/mcintosh.pdf williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 165 both of body and mind.’85 this racist statement of jefferson clearly shows that his statement in the second paragraph of the declaration of independence in 1776 that ‘all men are created equal; that they are endowed by their creator with certain inalienable rights,” did not imagine black people in america who were still enslaved at that time. admittedly, jefferson was an influential figure in american history for many reasons, but his racist writings continue to have effect even in contemporary times. in the contemporary justice system in america, black people are hardly given the benefit of the doubt (presumption of innocence) unlike their white counterparts who enjoy this as part of the white privilege. for example, the central park five case in 1989 shocked the conscience of the world regarding the manner of false accusations and manipulation of evidence to suit the mainstream narrative or to accomplish the economic interest of private prisons seeking for long term prisoners. interestingly at least, the victims were later exonerated on grounds of innocence after serving more than a decade in prison. during this time, donald trump spent $85,000 to advertise in the media, calling for the death of the accused black persons and stating emphatically that he ‘hated’ them.86 as gruesome as the central five story, it still looked like a little improvement compared to the brutal fate george stinney was forcibly made to embrace in 1944: a 14-year black boy that was wrongfully accused of murdering two white girls in south carolina and dumping their bodies inside a ditch. he was hastily tried, found guilty and executed by electrocution. he was exonerated post mortem in 2014 by judge carmen mullen, 70 years after he was murdered by the state owing largely to his race.87 white privilege entails that the privileged person is aware of its enjoyment, which manifests through the unfair engagement of the law or police against black people. for instance in may 2020, christian cooper, a black man, was lucky to escape a potential death or prison sentence while watching birds at the central park, where a white woman had dialed 911 and falsely cried out or reported that she ‘was being threatened and harassed by an african american man’, mr. cooper.88 in american history, white american women have been reasonably accused of weaponizing their tears and using them to unfairly trigger off the law enforcement 85 thomas jefferson, notes on the state of virginia (chapel hill: university of north carolina press, 1954) (original work published in 1787), p. 143. see nicholas e. magnis, ‘thomas jefferson and slavery’ (1999) 29(4) journal of black studies 491-509, at pp.491, 494, 496, 501. 86 bbc, ‘central park five: the true story behind when they see us’ bbc news (12 june 2019) <https:// www.bbc.com/news/newsbeat-48609693> (donald trump while commenting on the case, said: “i want to hate these murderers and i always will. i am not looking to psychoanalyse or understand them, i am looking to punish them.” irrespective of their exoneration on grounds of innocence, trump has refused to apologize for his false accusations which likely overshadowed the justice system and goaded them towards the wrongful convictions. 87 loulla-mae eleftheriou-smith, ‘george stinney jr: black 14-year-old boy exonerated 70 years after he was executed’ independent (18 december 2014) <https://www.independent.co.uk/news/world/americas/ george-stinney-jr-black-14-year-old-boy-exonerated-70-years-after-he-was-executed-9932429.html> 88 terina allen, ‘3 things amy cooper did in central park to damage her reputation and career’ forbes (29 may 2020) <https://www.forbes.com/sites/terinaallen/2020/05/29/3-things-amy-cooper-did-in-centralpark-that-destroyed-her-life/#6abe2ba76198> https://www.bbc.com/news/newsbeat-48609693 https://www.bbc.com/news/newsbeat-48609693 https://www.independent.co.uk/news/world/americas/george-stinney-jr-black-14-year-old-boy-exonerated-70-years-after-he-was-executed-9932429.html https://www.independent.co.uk/news/world/americas/george-stinney-jr-black-14-year-old-boy-exonerated-70-years-after-he-was-executed-9932429.html https://www.forbes.com/sites/terinaallen/2020/05/29/3-things-amy-cooper-did-in-central-park-that-destroyed-her-life/#6abe2ba76198 https://www.forbes.com/sites/terinaallen/2020/05/29/3-things-amy-cooper-did-in-central-park-that-destroyed-her-life/#6abe2ba76198 assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 166 agents toward acting irrationally against black people and other minorities:89 owing to this effective use of privilege, it was not therefore surprising that amy cooper dialed 911 and pretended she was crying while informing with the effective choice of words that a black man had ‘harassed’ and ‘threatened’ her, and that her life was in critical danger, thus leaving the law enforcement to stereotypically assume and erroneously interpret many criminal possibilities. based on american history, one can safely conclude that mr. cooper did not go to prison or get killed in the circumstance owing largely to the video record which went viral on the internet to quickly exonerate him: it should thus be underlined that mr. cooper’s ‘luck’ would have more likely been nonexistent in the nondigital or internet era. another wrongful act by the police which contributes or leads to incessant wrongful arrests and incarceration of black people in america is racial profiling, culminating into the frequent stopping and frisking on no reasonable grounds.90 this experience is largely absent among white americans, many of whom acknowledge it or express enormous doubts on the rough experiences of black with the police, generally due to their own lack of such experiences. there are reliable accounts that the american policemen are rewarded based on the number of traffic tickets they are able to issue or the number of arrests they are able to make: this incentivizes them to target americans whom they believe have no power to challenge them and whose mainstream image is infinitely elastic to accommodate any criminal allegations, i.e., the black people and other minorities.91 in whren v united states,92 the us supreme court empowered police officers to deem any traffic violation as a reasonable basis to stop and frisk motorists. this decision has been abused by the american police: there have been several instances where the police flagged down black motorists for no reason and hoped that they could find or implant incriminating evidence to justify their being frisked or arrested ex post facto: other times they persistently and derogatorily question them, hoping to annoy and then escalate the matter to the point an arrest or calling for a back-up becomes justified even if it is on 89 motwani m. accapadi, ‘when white women cry: how white women's tears oppress women of color’ (2007) 26(2) college student affairs journal, pp. 208-215. available at: <https://files.eric.ed.gov/fulltext/ ej899418.pdf>; ruby hamad, ‘crying shame: the power of white women’s tears’ the sydney morning herald (1 september 2019) <https://www.smh.com.au/entertainment/books/crying-shame-the-power-ofwhite-women-s-tears-20190820-p52iy7.html> 90 for a comprehensive assessment of police stop and frisk practices in america, see ngozi c. kamalu, ‘african americans and racial profiling by u.s law enforcement: an analysis of police traffic stops and searches of motorists in nebraska, 2002 – 2007’ (2016) 9(1) african journal of criminology and justice studies, 187, https://www.umes.edu/uploadedfiles/_websites/ajcjs/content/vol9.%20 kamalu%20%20final.pdf ; a deborah ramirez, et al, ‘resource guide on racial profiling data collection systems a resource guide on racial profiling data collection systems u.s. department of justice promising practices and lessons learned’ us department of justice (november 2000). available at https://www.ojp.gov/pdffiles1/bja/184768.pdf 91 sara wallace, ‘nj police targeted black and latino neighborhoods to fulfill ticket quotas, cops say’ nbc news (13 february 2020) < https://www.nbcnewyork.com/investigations/nj-police-targeted-blackand-latino-neighborhoods-to-fulfill-ticket-quotas-cops-say/2289221/> 92 517 u.s. 806 (1996). https://files.eric.ed.gov/fulltext/ej899418.pdf https://files.eric.ed.gov/fulltext/ej899418.pdf https://www.smh.com.au/entertainment/books/crying-shame-the-power-of-white-women-s-tears-20190820-p52iy7.html https://www.smh.com.au/entertainment/books/crying-shame-the-power-of-white-women-s-tears-20190820-p52iy7.html https://www.umes.edu/uploadedfiles/_websites/ajcjs/content/vol9.%20kamalu%20%20final.pdf https://www.umes.edu/uploadedfiles/_websites/ajcjs/content/vol9.%20kamalu%20%20final.pdf https://www.ojp.gov/pdffiles1/bja/184768.pdf https://www.nbcnewyork.com/investigations/nj-police-targeted-black-and-latino-neighborhoods-to-fulfill-ticket-quotas-cops-say/2289221 https://www.nbcnewyork.com/investigations/nj-police-targeted-black-and-latino-neighborhoods-to-fulfill-ticket-quotas-cops-say/2289221 williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 167 a flimsy ground such as resisting an arrest, even when not under arrest.93 the american police being the reincarnate of slave patrollers and masters are typically put off by a confident black person who refuses to address them with undue respect and obey their non-constitutional commands: in that case they largely imagine such black person as an errant slave, whose insistence on human rights treatment in the circumstance is interpreted as being ‘disrespectful’ and thus deserving of immediate arrest and punishment, reechoing the type of treatment meted on slaves who disrespected their masters during the slavery era. as earlier stated, black people in america officially came in contact with the concepts of human rights in the thirteenth amendment in 1865, i.e., 76 years after the first and second amendments’ rights were respectively enacted in 1789 and 1791. what this explains is that the agitators of the right to freedom of expression (including protests) and the right to bear arms unlikely imagined that black people will someday become beneficiaries as well. this could help explain why black protests, no matter how peaceful, are easily characterized as riots, peace disturbances, rebellion, looting spree, etc., enough to trigger the police (equivalent of former slave owners) to come down heavily with excessive force in quelling the ‘riots’.94 as payne and correll found in their study, a pictorial depiction of violence, theft and thuggery hangs loosely on the majoritarian/ american public’s subconscious mind when a black person is seen bearing arms,95 or walking peacefully (interpreted as ‘wandering’) on the streets: many times, some white women in certain neighborhoods (now nicknamed as ‘karens’)96 dialed 911 to report their discovery of a black person in their neighborhood: in the last analysis such call could lead to an attempted wrongful arrest, resistance of it, and shooting of the black victim, who is often blamed post mortem for not allowing himself to be wrongfully arrested, and possibly incarcerated. white americans constitute about 80% of the entire police force and about 76.4% of the entire american population: it is not therefore surprising that some symbiotic relationship or a sort of mutual understanding exists to the effect that a significant number of white people are treated gently and given benefit of the doubt by the police, while the 93 meagan flynn, ‘us officer pulled random people over and planted meth inside their cars, causing them to lose their freedom, their children, their marriages’ independent (12 july 2019) <https:// www.independent.co.uk/news/world/americas/police-us-planted-evidence-meth-marijuana-cars-floridazachary-a9001961.html>; david a. harris, ‘driving while black: racial profiling on our nation’s highways’ an american civil liberties union special report (june 1999) available at: <https://www.aclu. org/report/driving-while-black-racial-profiling-our-nations-highways> 94 jackie smith, john d. mccarthy, clark mcphail and boguslaw augustyn, ‘from protest to agenda building: description bias in media coverage of protest events in washington, dc’ (2001) 79(4) social forces, 1397-1423, at p.1415. 95 keith payne, and joshua correll, ‘race, weapons, and the perception of threat’ (2020) 62 advances in experimental social psychology, p 5: “in response times, guns (but not tools) are identified faster when paired with a black prime than a white prime. in error rates, harmless items are mistaken for guns more frequently when paired with a black prime than a white prime. guns are mistaken for harmless objects more frequently when paired with a white face.” 96 cady lang, ‘how the ‘karen meme’ confronts the violent history of white womanhood’ time (6 july 2020) <https://time.com/5857023/karen-meme-history-meaning/> https://www.independent.co.uk/news/world/americas/police-us-planted-evidence-meth-marijuana-cars-florida-zachary-a9001961.html https://www.independent.co.uk/news/world/americas/police-us-planted-evidence-meth-marijuana-cars-florida-zachary-a9001961.html https://www.independent.co.uk/news/world/americas/police-us-planted-evidence-meth-marijuana-cars-florida-zachary-a9001961.html https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways https://time.com/5857023/karen-meme-history-meaning assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 168 former ensure that they do not criticize the police or support any effort that seeks to uncover suspected heinous acts that might lead to their incrimination, trial and imprisonment. an example of this symbiosis can be established in reminiscence of the aftermath of the wrongful killing of sean bell in 2006 by the new york police department officers, wherein michael bloomberg, mayor of the new york city at the time, rationalized and tried to justify the killing by emphatically declaring that he ‘[k]new that the officers on the scene had reason to believe an altercation involving a firearm was about to happen and were trying to stop it.’97 the officers involved were not convicted despite the overwhelming eyewitness accounts that corroborated their lack of total innocence in the circumstance. the bloomberg’s type of favor is often reciprocated as well by the police: e.g., intentionally failing to arrest the killers of almaud arbery, until after 74 days following twitter and facebook outcries:98 based on american history, it is not insensible to say that the delay in arrest would never have been possible if mr. arbery was a white person, and if the murder suspects were black. neither would it be debatable on whether it was justifiable or not if a black policeman in america were to break into homes without warrants to shoot down white people resting or sleeping in their homes. yet these were the brutal experiences of the late atatiana jefferson,99 botham jean,100 breonna taylor,101 etc., without any meaningful justice. however, when tremaine wilbourn killed a white policeman in the heat of passion, there was no difficulty in understanding it as murder and the entire criminal justice system ensured that a life sentence was given, with even the ridiculous possibility of ‘serving an additional 38 years after death’.102in truth, the lack or insufficient experiences of police brutality by the majoritarian population makes it difficult to appreciate the bitter experiences of black people, let alone empathize or protest on their behalf against these heinous incidents. in contrast to the forgoing black experiences, in june 2015, dylann roof walked into emmanuel african methodist episcopal church and murdered nine black 97 julian borger, ‘new york on edge as police kill unarmed man in hail of 50 bullets on his wedding day’ the guardian (7 november 2006) <https://www.theguardian.com/world/2006/nov/27/usa.julianborger> 98 janelle griffith, ‘ahmaud arbery shooting: a timeline of the case’ nbc news (12 may 2020) <https:// www.nbcnews.com/news/us-news/ahmaud-arbery-shooting-timeline-case-n1204306> 99 erik ortiz, ‘forth worth police officer who fatally shot atatiana jefferson indicted on murder charge’ nbc news (21 december 2019) <https://www.nbcnews.com/news/us-news/fort-worth-police-officer-whofatally-shot-atatiana-jefferson-indicted-n1105916> 100 tom dart, ‘amber guyger guilty of murdering black neighbor botham jean in his own home’ the guardian (1 october 2019) <https://www.theguardian.com/us-news/2019/oct/01/amber-guyger-texasdallas-jury-botham-jean> 101 victoria albert, “911 call from breonna taylor’s shooting death released: ‘somebody kicked in the door and shot my girlfriend’” cbs news (29 may 2020) <https://www.cbsnews.com/news/breonna-taylorkenneth-walker-911-call-police-shooting/> 102 ‘tremaine wilbourn was sentenced to an additional 38 years on top of a life sentence for killing a memphis police officer sean bolton’: linda moore, ‘tremaine wilbourn gets 38 years added to life sentence in slaying of mpd officer sean bolton’ commercial appeal (17 december 2018) <https://www. commercialappeal.com/story/news/2018/12/17/memphis-police-killing-tremaine-wilbourn-gets-38-yearsadded-life-sentence/2281111002/> https://www.theguardian.com/world/2006/nov/27/usa.julianborger https://www.nbcnews.com/news/us-news/ahmaud-arbery-shooting-timeline-case-n1204306 https://www.nbcnews.com/news/us-news/ahmaud-arbery-shooting-timeline-case-n1204306 https://www.nbcnews.com/news/us-news/fort-worth-police-officer-who-fatally-shot-atatiana-jefferson-indicted-n1105916 https://www.nbcnews.com/news/us-news/fort-worth-police-officer-who-fatally-shot-atatiana-jefferson-indicted-n1105916 https://www.theguardian.com/us-news/2019/oct/01/amber-guyger-texas-dallas-jury-botham-jean https://www.theguardian.com/us-news/2019/oct/01/amber-guyger-texas-dallas-jury-botham-jean https://www.cbsnews.com/news/breonna-taylor-kenneth-walker-911-call-police-shooting https://www.cbsnews.com/news/breonna-taylor-kenneth-walker-911-call-police-shooting https://www.commercialappeal.com/story/news/2018/12/17/memphis-police-killing-tremaine-wilbourn-gets-38-years-added-life-sentence/2281111002 https://www.commercialappeal.com/story/news/2018/12/17/memphis-police-killing-tremaine-wilbourn-gets-38-years-added-life-sentence/2281111002 https://www.commercialappeal.com/story/news/2018/12/17/memphis-police-killing-tremaine-wilbourn-gets-38-years-added-life-sentence/2281111002 williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 169 worshippers during their routine bible study.103 it was sad to see how race affected the actions and treatments by the police and mainstream media which exceptionally underline their racist hypocrisies. on one hand, the mainstream media largely reported that mr. roof was mentally unsound, was a ‘sweet and quiet kid, had no friend and was basically acting alone’:104 the focus on his alleged deteriorated mental health was of course an old trick calculated at ensuring a mitigation of his offence. the regular defense of mental incapacity when a white criminal suspect is involved somehow tries to reinforce thomas jefferson’s claim of racial superiority: as if to say that such a heinous crime was incapable of being committed by a white american if not for their deteriorated mental health. sadly, in the mainstream media, the lack of mental capacity defense is hardly available for black criminal suspects. the police on the other hand, treated mr. roof (the murder suspect) with enormous respect and care, including buying him a hamburger and drink. a similar act of kindness was shown to another white murder suspect, mr. sebastian arzadon, who was given water to drink while sitting, and had his wound carefully dressed by some attentive paramedics. in october 2020, caitlyn pye, a 17-year white girl was sentenced to four years in a juvenile detention center after she apologized in court for her failed plot to kill the black worshippers at bethel african methodist episcopal church.105 on march 16 2021, robert aaron long, 21 years old, engaged in a mass shooting that killed eight people in atlanta. he was arrested without being shot. in a press conference, the cherokee county sheriff’s office capt. jay baker described that the shooter was frustrated and perhaps had a ‘bad day’.106interestingly, the media and police did not describe him as a thug or crook. meanwhile, in june 2018, dayonn davis, a black boy who was 15 years old at the time he was accused of stealing a pair of shoes, was tried as an adult and given 5 years in prison irrespective of his apologies in court and the lack of any prior criminal records.107 undeniably, race is a critical factor in the american criminal justice system, and the forgoing incidents only constitute a small percentage of the race motivated arrests and 103 glenn smith, jennifer berry hawes and abigail darlington, ‘dylann roof says he chose charleston, emanuel ame for massacre because they were historic, meaningful’ the post and courier (9 december 2016) <https://www.postandcourier.com/church_shooting/dylann-roof-says-he-chose-charleston-emanuel -a m e -for-massacre-because-they-were-historic-meaningful/article_6fab532c-be05-11e6-ab05-575a173 99 3e e.html> 104 see oliver laughland et al., ‘charleston killings leave us reckoning with race and guns amid ‘broken peace’ the guardian (18 june, 2015) <http://www.theguardian.com/ world/2015/jun/ 18/charleston-southcarolina-church-shooting-race-gun-violence> 105 haven orecchio-egresitz, ‘a 17-year-old white supremacist apologized for her plot to attack a black georgia church and was sentenced to juvenile detention’ business insider (23 october 2020) <https:// www.businessinsider.in/international/news/a-17-year-old-white-supremacist-apologized-for-her-plot-toattack-a-black-georgia-church-and-was-sentenced-to-juvenile-detention/articleshow/78833398.cms> 106 meryl kornfield and hannah knowles, ‘captain who said spa shootings suspect had ‘bad day’ no longer a spokesman on case, official says’ washington post (march 19 2021). available at <https://www. washingtonpost.com/nation/2021/03/17/jay-baker-bad-day/> 107 cbs, ‘georgia teen gets 5 years in prison for shoe robbery’ cbs news (1 june 2018) <https://www. cbsnews.com/news/georgia-teen-gets-5-years-in-prison-for-shoe-robbery/> https://www.postandcourier.com/church_shooting/dylann-roof-says-he-chose-charleston-emanuel​-a​m​e​-for-massacre-because-they-were-historic-meaningful/article_6fab532c-be05-11e6-ab05-575a173​99​3e​e.html https://www.postandcourier.com/church_shooting/dylann-roof-says-he-chose-charleston-emanuel​-a​m​e​-for-massacre-because-they-were-historic-meaningful/article_6fab532c-be05-11e6-ab05-575a173​99​3e​e.html https://www.postandcourier.com/church_shooting/dylann-roof-says-he-chose-charleston-emanuel​-a​m​e​-for-massacre-because-they-were-historic-meaningful/article_6fab532c-be05-11e6-ab05-575a173​99​3e​e.html http://www.theguardian.com https://www.businessinsider.in/international/news/a-17-year-old-white-supremacist-apologized-for-her-plot-to-attack-a-black-georgia-church-and-was-sentenced-to-juvenile-detention/articleshow/78833398.cms https://www.businessinsider.in/international/news/a-17-year-old-white-supremacist-apologized-for-her-plot-to-attack-a-black-georgia-church-and-was-sentenced-to-juvenile-detention/articleshow/78833398.cms https://www.businessinsider.in/international/news/a-17-year-old-white-supremacist-apologized-for-her-plot-to-attack-a-black-georgia-church-and-was-sentenced-to-juvenile-detention/articleshow/78833398.cms https://www.washingtonpost.com/nation/2021/03/17/jay-baker-bad-day https://www.washingtonpost.com/nation/2021/03/17/jay-baker-bad-day https://www.cbsnews.com/news/georgia-teen-gets-5-years-in-prison-for-shoe-robbery https://www.cbsnews.com/news/georgia-teen-gets-5-years-in-prison-for-shoe-robbery assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 170 extra judicial killings of black people in america. in the next section, the paper discusses how george floyd was extra judicially killed by derek chauvin in may 2020 and how the mass media’s reports had colorations of racial biases. 3.1.5. george floyd’s death: a mirror-image of police brutality in america on may 25 2020, the world witnessed the horrific execution of mr. floyd by derek chauvin, who knelt heavily at the back of floyd’s neck for about 9 minutes. floyd was suspected for using a fake $20 bill, and throughout his arrest by the police he was cooperative and did not unreasonably resist as he was alleged to have done: the street circuit cameras confirm this. in any case, owing to the presumption of innocence, the punishment for forgery under american law is not an extra judicial killing of the suspect. floyd’s death summarizes a lot of racial issues in the american criminal justice system. first, given the type of gun-aided power being weirded by the police in today’s america, this paper compares or equates them with the slave owners in the 15th to 19th century era who used brute force to subdue or murder enslaved black people. mr. chauvin’s style of execution helped observers to achieve a time travel into history, to appreciate one of the lynching styles the slave masters used in murdering their enslaved people. second, the lack of positive emotions both on the part of mr. chauvin and his other colleagues at the scene who helped to pin floyd on the tarmac as well as warded off those who attempted to intervene, is reminiscent of the total lack of positive emotions that characterized the murdering of black people during the slavery period. third, the onlookers at the scene of crime who attempted to intervene, even though larger in number, could not save floyd, just like in the era of slavery whereby the pleas and subtle interventions of onlookers were hardly sufficient in changing a slave master’s decision if he was bent on killing a slave his property. fourth, the protests emanating from floyd’s death helped observers to achieve historical flashbacks regarding the occasional rebellions of slaves following a killing of their loved ones: the stono rebellion and others being resistances against accumulated acts of oppression, which were of course subdued with heavy force and arms, just like america’s commander-in-chief, donald trump, proposed to use military force to clamp down on the black protesters whom he designated as ‘thugs’ and ‘looters’. undeniably, it is now common knowledge that being black in america constitutes a bundle of disadvantages and negative stereotypes especially when interacting with the criminal justice system: the forgoing cases are just a few records of the numerous acts of oppression and injustice that are still ongoing. 4. the role of profit in mass black incarceration 4.1. reimagining the 13th amendment: the slave plantations rose from the ashes to become the american prisons as earlier stated, after 400 years of enslavement and following the constant agitations of the enslaved black people to be free, president abraham lincoln helped to trigger the abolition of slavery, chiseled in the thirteenth amendment which abolished williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 171 involuntary servitude except in the context of punishment. because slave labor was unpaid,108 the newly freed slaves did not have any savings or real estate property to fend for themselves: this functionally returned them to serve their former masters almost under similar gruesome conditions as were in the pre-abolition era. thus, functionally, the freedom was significantly rendered useless in the absence of corresponding rights to own land and cultivate food: as martin luther king jr put it, “[b]lack people were let to pull themselves up by their own bootstraps.’109it was not long before the ‘loophole’ in the thirteenth amendment began to manifest in ugly ways against black people. its punishment clause which exempts involuntary servitude was, and is being used to functionally achieve the financial gains of slavery: the conversion of a large number of black people into money-making stocks. laura appleman provides a thorough account on the role of profit in mass incarceration. in the 1980s, under the pretext that prisons were becoming overcrowded and no longer efficiently managed by the government, part of management was ceded to private corporations which angled to profit largely from the huge budget.110 the annual prison budget in america is estimated to be over $182 billion: this sum, which is more than the gross domestic products of many countries, fuels and nourishes the massive appetite of the american corporate prisons in being too creative toward having a sufficient piece of the budget. based on america’s antecedents of deferring largely to capitalism, it is reasonable to believe that the successful lobbying of lawmakers was integral in the ceding of prison management to corporations. today, two multibillion dollar private prison corporations, namely corecivic (formerly the corrections corporation of america),111 and geo group,112 with more than $3.7 billion and $4.3 billion of total worth, respectively partner with the government in providing prison services. the stocks of these two corporations are also traded on the new york stock exchange. as corporations exist to primarily make profits for their shareholders following the shareholder primacy doctrine,113 the drive for profit by these corporations has trickled down to further corrupt the american criminal justice system, using it to unduly acquire a large number of black people for profit. apparently, prison management is significantly profitable considering that $36,000 is annually budgeted for each prisoner by the government, while it has been reported several times that the average sum expended 108 kevin anderson, ‘marx’s intertwining of race and class during the civil war in the u.s.’ (2017) 17(1) journal of social psychology, p. 3. <https://escholarship.org/uc/item/6238s7h2> 109 ‘in may 1967, nbc correspondent sander vanocur asked dr. martin luther king, jr., “what is it about the negro? i mean, every other group that came as an immigrant somehow—not easily, but somehow got around it? is it just the fact that negroes are black?” see full video interview at: cory heidelberger, ‘king: “cruel jest” to tell bootless man to lift self by bootstraps’. available at: < https://dakotafreepress. com/2019/01/21/king-cruel-jest-to-tell-bootless-man-to-lift-self-by-bootstraps/> 110 laura i. appleman, ‘cashing in on convicts: privatization, punishment, and the people’ (vol. 2018, no.3) utah law review 579, pp. 582-607. 111 the official website of corecivic: <https://www.corecivic.com/> 112 the official website of geo group inc: <https://www.geogroup.com/> 113 robert j. rhee, ‘a legal theory of shareholder primacy’ (2018) 102 minnesota law review 1951-2016, pp. 2002-2010. https://escholarship.org/uc/item/6238s7h2 https://dakotafreepress.com/2019/01/21/king-cruel-jest-to-tell-bootless-man-to-lift-self-by-bootstraps https://dakotafreepress.com/2019/01/21/king-cruel-jest-to-tell-bootless-man-to-lift-self-by-bootstraps https://www.corecivic.com https://www.geogroup.com assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 172 on each prisoner’s feeding per day is $2.62.114 as earlier stated, the punishment clause exempts involuntary servitude in the context of imprisonment, and towards rehabilitating and reforming prisoners, the law authorizes that the latter could be made to do menial tasks for little or no pay.115 using prisoners to carry out tasks that would otherwise have been paid for at commercial rates helps swell up prison stocks, since the financial difference between the market rate and the lower sum paid to prisoners is ploughed back into the corporate coffers which enhances the corporate value and profit for the shareholders. further, since the american government pays corporate prisons based on the number of inmates they have under their care, and given that about $36,000 is annually budgeted for one prisoner compared to the average daily feeding cost of each prisoner, the shareholders of these prison corporations, in principle, thus stand a chance to make an astronomically high amount as return on investment. from the profit perspective, this presumably triggers the competitive race for the mass acquisition of prisoners, perhaps, through some police-agents.116 in fact, for prison shareholders and their directors, prisoners with long term sentences functionally act as long term retainer-ship contracts with the governments, a sort of guarantee which enable them to reasonably forecast their revenues over a long period of time, thus making them attractive to potential credit or equity investors.117 toward sustaining their regular stream of income from the governments, and also grow their corporate stocks, the ideal and most sought-after candidates for imprisonment are therefore young black people accused of murder, rape, and other crimes with long term sentences. assessing the main causes for mass black incarceration from the perspective of corporate profit maximization helps to explain why private prison corporations oppose death penalty, or the numerous instances black people were wrongfully accused by the police for rape and murder, but later through whistleblowing efforts, it was discovered that the police had exonerating pieces of evidence ab initio, but refused to make them available to the defense counsel.118 on a daily basis corporate prison business managers charged with the task of profitmaximization must ask themselves the economic question of where and how prisoners will be acquired in order to be eligible in participating to scramble from the prison annual budget, just like the slave owners wondered where and how to acquire slaves in order to grow their farm holdings. similarly, just like the answer was found in the invasion of west africa to subdue and kidnap africans to work in the american plantations; in the 114 peter wagner and bernadette rabuy, ‘following the money of mass incarceration’ prison policy initiative (25 january 2017) <https://www.prisonpolicy.org/reports/money.html> 115 cf. laura appleman (n 110), p. 586. 116 joseph goldstein and ashley southall, ‘‘i got tired of hunting black and hispanic people’ new york times (9 december 2019) <https://www.nytimes.com/2019/12/06/nyregion/nyc-police-subway-racialprofiling.html> 117 cf. laura appleman (n 110), p. 624. 118 cf. central park five (n 86). https://www.prisonpolicy.org/reports/money.html https://www.nytimes.com/2019/12/06/nyregion/nyc-police-subway-racial-profiling.html https://www.nytimes.com/2019/12/06/nyregion/nyc-police-subway-racial-profiling.html williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 173 contemporary america, the solution for prison owners is the same but approached slightly differently by using corrupt members of the criminal justice system to actualize mass black incarceration through false accusations, wrongful arrests, unfair trial, and finally depositing them into private prisons where they begin to yield money, sometimes for the rest of their lives. 4.2. the cash bail system the cash bail system also helps to perpetuate mass black incarceration. the average bail sum for felony in america is $10,000 and most black people arrested wrongfully are not able to afford their cash bail or even bail-bond premiums:119 the value of the latter is usually about 10% of the bail sum charged upfront, which is generally unaffordable due to the low income of black people. since full cash payment for felony charges is a precondition for bail (which is generally unaffordable), resorting to purchasing bail-bond premiums appears easier even though the accused black person stands to lose the collateral used in securing the bail-bond premium if they miss to attend their trial proceeding and their bail-bond corporation steps in to pay. in truth the bail-bond corporations bear no material risk even though they prima facie act as insurance: thus whether accused black persons fail to attend trial or do attend, they make profit out of their wrongful arrests and trials. the generally unaffordable high cash bail sums and bail-bond premiums ensure that an accused black person remains in jail throughout their trial, and during this awaiting trial or trial period, their sojourn in jail also makes money for the owners of the jail detention facilities.120 this situation negatively affects the lives and progress of black people: for example, in 2010, kalief browder, a 16-year black boy was accused of stealing a backpack containing valuables in, new york. his bail was set at $3,000 but his family could not afford to pay for it and this caused him to be detained without trial at the rikers island jail complex for three years before he was released. he hung himself few years after he was released, citing that he became mentally traumatized while in detention.121 browder’s case is a typical experience for many other black people whose cases often escape the attention of the public or human rights activists. 119 mary t. phillips, ‘a decade of bail research in new york city’, final report, new york city criminal justice agency (august 2012), at pp. 41-50. in america, calls for bail reforms have lasted for several decades without any significant outcome. see the testimony of former u.s. attorney general, robert kennedy: ‘bail legislation before the subcommittee on constitutional rights and improvements in judicial machinery of the senate judiciary committee’ us. department of justice (august 4, 1964). available at: <https://www. justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf> 120 see generally laura i. appleman, ‘justice in the shadowlands: pretrial detention, punishment, & the sixth amendment’ (2012) 69 washington & lee law review 1297 (she argued how pretrial detention functionally violates the sixth amendment right to trial by jury). 121 jennifer gonnerman, ‘kalief browder 1993 2015’ the new yorker (7 june 2015) <https://www. newyorker.com/news/news-desk/kalief-browder-1993-2015> https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015 https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015 assessing the roles of race and profit in the mass incarceration of black people in america the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 174 4.3. who own the stocks of the prison and bail-bond corporations? the relevancy of this question is premised on one of the cardinal principles of natural justice which disallows a person from presiding over their own case. having established above that financial investments in prison and bail-bond corporations yield high returns on investment considering the certainty of the annual budget and the solid structure in place to ensure the easy acquisition of vulnerable minorities, notably black and brown people in america, it has become vitally important to investigate whether judges, police officers, and influential people in the american criminal justice system own stocks of the prison and bail-bond corporations.122 there had been efforts in the past to carry out this investigation, but expectedly, legal rules have been put in place to frustrate such attempts, by making it difficult to obtain and publish the list of individual shareholders of these corporations. for example, corecivic, registered in the state of maryland even though headquartered in tennessee, enjoys the former’s corporate law requirement that only a shareholder with 5% of stocks (about $200 million in the case of corecivic) can request and peruse the list of shareholders. similarly, under the law of florida where geo group is registered, a shareholder is prohibited from distributing any information or record if the distribution differs from the purpose indicated during the time it was obtained from the corporation.123 this discovery effort ought to be championed by the government: although its clean hands in the circumstance are strongly doubted considering its deference to capitalism and the profit-making orientation which underscores america’s domestic and foreign policies. there is need to agitate towards enacting legislation that expressly prohibit judges, police officers, and key officers in the criminal justice system from directly or indirectly owning stocks in prison, bail-bond corporations, and even the monopolistic telephone corporations located in prison premises that charge inmates $1.50 per minute.124 also such legislation ought to bequeath regular americans with the right to freely apply and obtain without delay, the list of shareholders of these corporations: it is reasonably believed that this could become an effective ex ante remedy toward curtailing the corruption of the police and biases of judges that perpetuate mass black incarceration. 5. conclusion: protests yield more and better rights based on the forgoing, the paper concludes that it is reasonable to believe that race and profit play active and influential roles in the american criminal justice system. it reiterates that the black-letter law or rights have not worked well for black people in america: those who profit from the status quo continue to create systems and barriers 122 gillian white, ‘who really makes money off of bail bonds?’ the atlantic (12 may 2017) <https:// www.theatlantic.com/business/archive/2017/05/bail-bonds/526542/> 123 alex friedmann, ‘who owns private prison stocks’ prison legal news (31 july 2015) <https://www. prisonlegalnews.org/news/2015/jul/31/who-owns-private-prison-stock/> 124 aleks kajstura, ‘evading regulation, some in-state phone calls from jails cost over $1.50 a minute’ prison policy initiative (19 january 2017) < https://www.prisonpolicy.org/blog/2017/01/19/intrastate/> https://www.theatlantic.com/business/archive/2017/05/bail-bonds/526542 https://www.theatlantic.com/business/archive/2017/05/bail-bonds/526542 https://www.prisonlegalnews.org/news/2015/jul/31/who-owns-private-prison-stock https://www.prisonlegalnews.org/news/2015/jul/31/who-owns-private-prison-stock https://www.prisonpolicy.org/blog/2017/01/19/intrastate williams c. iheme the age of human rights journal, 16 (june 2021) pp. 148-185 issn: 2340-9592 doi: 10.17561/tahrj.v16.6274 175 that frustrate equal treatment and enjoyment of human rights. and in order to continue to profit from this unjust enrichment, the ‘black body’ has been made a metaphor for crime, violence, poverty and hate. in this era of internet and globalization, there is more hope for black people in america to reinvent the narrative and show the world these systemic ills and oppressions they suffer in abundance. sufficient global awareness could amplify the stifled voices, trigger empathy and solidarity as showcased in the global protests following george floyd’s death. this also means that if use of protests was effective toward achieving the thirteenth amendment and other important rights stemming from the civil rights movement in the non-digital era, then it has become more efficacious and promising in the twenty-first century, wherein the prevalent use of smart phones enabled the world to eyewitness the horrific execution of george floyd. it is highly disturbing that these atrocities are committed regularly, most times without punishment, and other times, with inadequate punishment of the wrongdoers, in a country that regularly praises itself as “[t]he guardians of freedom, preserving it for the benefit of the human race.”125 black people in america should continue to learn how best to pierce through the deceptive veils of politicians, especially candidates for congressional seats who try to appease their feelings only during elections but do not sincerely engage afterward in fulfilling the promises that will end racial inequalities, perhaps due to regulatory capture. for black people, similarly to what malcolm x proposed, a new model of politicking is needed: one that does not rest strictly on political party affiliations, but on credible individuals who have sufficiently shown commitment to end the racial discrimination and police brutality of black people in america.126 history teaches that true freedom is not given on a platter; it is fought for with dialogues, resistance, agitations and protests, and the black people in america with more than 500 years of fighting for every right they have, are perhaps the most experienced freedom fighters in the world: their approaches could be useful for marginalized peoples across the globe. the protests in the aftermath of george floyd’s death had already yielded some positive reforms and continue to inspire more reforms. therefore, irrespective of any discouraging voices, it is hoped that more protests would be undertaken to achieve sustainable reforms that critically address police brutality, bail, and private prison systems, which until now have deepened the motivation that ensures the mass incarceration of black people in america. evidently, the positive outcomes from the protests and resistance against oppression and police brutality in america have also been a vital source of inspiration for the youths in nigeria who in october 2020, started to boldly raise their heads above the parapet and standing on their full height to challenge incidents of police brutality through protests and the #endsars movement 125 andrew jackson, ‘farewell address of president andrew jackson’ miller center (4 march 1837) < https://millercenter.org/the-presidency/presidential-speeches/march-4-1837-farewell-address> accessed 7 june 2020. 126 malcolm x, ‘the ballot or the bullet’ american radioworks (12 april 1964) <https://americanradioworks. publicradio.org/features/blackspeech/mx.html> 127 neil munshi, ‘youth of nigeria force buhari’s hand as anger at police brutality boils over’ financial times (15 october 2020) <https://www.ft.com/content/777c9f4e-e071-49c8-98f6-abcd2e8b0d76> https://millercenter.org/the-presidency/presidential-speeches/march-4-1837-farewell-address https://americanradioworks.publicradio.org/features/blackspeech/mx.html https://americanradioworks.publicradio.org/features/blackspeech/mx.html 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https://www.cbsnews.com/news/breonna-taylor-kenneth-walker-911-call-police-shooting https://www.chicagotribune.com/nation-world/ct-police-shootings-race-20160711-story.html https://www.chicagotribune.com/nation-world/ct-police-shootings-race-20160711-story.html assessing the roles of race and profit in the mass incarceration of black people in america abstract 1. introduction: what does history tell us? 1.1. the aim of writing and the underlying questions 1.2. justification for the choice of questions 2. the observations from which the questions emerged 2.1. first observation: the near-impotence of blackletter rights 2.2. second observation: police brutality of black people is a superstructure 2.3. third observation: the majoritarian attempt to seek equity and justice with unclean hands 3. analysis of the questions and observations through the lenses of race & profit 3.1. does race play a role in the administration of criminal justice? 3.1.1. what do the statistical data say? 3.1.2. are some prosecutors and forensic experts compromised? 3.1.3. biased mainstream news reporting? 3.1.4. support from white supremacists? 3.1.5. george floyd’s death: a mirror-image of police brutality in america 4. the role of profit in mass black incarceration 4.1. reimagining the 13th amendment: the slave plantations rose from the ashes to become the am 4.2. the cash bail system 4.3. who own the stocks of the prison and bail-bond corporations? 5. conclusion: protests yield more and better rights references a. books and journal articles b. court cases c. legislation d. internet sources human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 135 human rights and strong institutions: a study of amnesty international in nigeria ebieri favour1, sheriff folarin2 abstract: human right is a topical issue globally but attaining it has remained very difficult. every day, people around the world face different forms of dehumanizing treatment from their governments, multinationals and other groups. for decade too, strong institutions have emerged to fight for the rights of the voiceless and the weak. one of these institutions is amnesty international (ai). this paper examines the activities of amnesty international in the promotion and protection of human rights vis-a-vis the nature of operations, contributions and challenges in nigeria. the paper adopts desk research design, which is based on secondary sources from journals, books and other printed materials. findings revealed that ai has significantly contributed to the promotion of human rights in nigeria through different approaches such as advocacy/campaign, governance peer review, shaming-and-naming approach, and support for domestic civil rights groups, among others. however, findings also showed that the main challenges of ai are the negative perceptions of some sections toward the organization as a tool for promoting western ideology and the low awareness and involvement of individuals at the grassroots in developing nations like nigeria. the paper recommends that the organization intensifies its promotional activities in a manner that would improve its reputation as well as help to educate and provide access for engagement of locals in developing countries. keyword: amnesty international, human rights, strong institutions summary: 1. introduction. 2. methodology. 3. conceptual clarification, 3.1. concept of human rights. 4. concept of strong institutions. 5. perspectives in literature. 6. theoretical construct. 7. role of ai in strengthening human rights base in nigeria. 7.1. modes of operation, 7.2. challenges and criticism of amnesty international. 8. conclusions. 9. recommendations. 1. introduction human rights and strong institutions are essential ingredients in every society to ensure justice, encourage respect and tolerance for citizens and help build a sustainable society. injustice against humanity by other humans and systems is a global issue from time immemorial. similarly, the desire to promote human rights and strong and accountable institutions is not a new subject. in the 21st century following the universal declaration of human rights (udhr) in 1948, following the end of second world war and the horrific holocaust, and cold war that left the world in disarray, human rights issues took the global stage and forced the world to commit to prevention of any reoccurrence of such horrors and atrocities of 1 department of political science & international relations, covenant university ota, nigeria (jones. favour@ymail.com) 2 department of political science & international relations, covenant university ota, nigeria human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 136 the past (global citizenship commission, 2016). this development increased awareness of the equality and universality of every individual and the creation of strong institutions to help maintain and enforce it (ramcharan, 2015). the un universal declaration of human rights is recognized as the pioneer for the promotion and protection of human rights, thus putting increased demands on national governments to protect the rights of their citizens from any form of abuse through the creation of institutions that uphold the law (krasner 2001). it has become expedient and normal for all countries of the world to domesticate the un’s udhr in their constitutions; thus, human rights are often expressed in nations' constitutions, regional treaties and other sources across the world (undc, guidance, 2011). despite this development, evidence abounds of increasing cases of human rights abuses around the world. reports by amnesty international (2008) indicated that decades after the adoption of the udhr, individuals still suffer a gross violation of human rights in many countries through detention, unfair trial and physical attacks among other forms of abuse. similarly, in nigeria, there are documented cases of human rights abuses such as rape, unlawful detention, killing of innocent people, environmental pollution, among other abuses which are motivated by politics, terrorism such as boko haram; and activities of multinationals especially in the niger-delta. other instances are violations occasioned by religious fanaticism, ethnic bigotry and police and military brutality, which are rarely investigated (onwuazombe, 2017). this shows that national governments around the world especially in developing nations like nigeria have not significantly lived to the expectations or demands of the united nations udhr which they are signatories. the inability of state actors to ensure the protection of human rights throughout the world has brought several human rights groups or institutions and civil societies who are dedicated to promoting and protecting the rights of individuals. according to jacobs and maldonado (2005) human rights’ groups or exists at the domestic and international levels. at the domestic level, such groups often act in opposition to formal government actors and international level; they opined that human right groups are selfformulated activism group that assumes the role of a united act throughout the world in defense of human rights. example of such institutions includes human rights without frontiers, human rights watch, human rights action center and amnesty international. for this study, amnesty international will be the focus, as it is the largest human rights protector or institution in the world. the ultimate goal of the amnesty international is a world in which all individuals have access to human rights as stated in the udhr (statute of amnesty international, 2005). with a plethora of cases of human rights violation throughout the world, the activities of human right institutions like amnesty international must be examined. the specific objectives of this paper are as follows: i. to examine the activities of amnesty international in the fight for human rights and strong institutions in nigeria. ebieri favour and sheriff folarin the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 137 ii. to assess the contributions of amnesty international toward the actualization of the universal declaration of human rights. iii. to examine the challenges of amnesty international in their effort toward promoting human rights and strong institutions in nigeria. the study is further guided by the following research questions: i. how does amnesty international engage in the fight for human rights and strong institutions in nigeria? ii. what are the contributions of amnesty international toward the actualization of the universal declaration of human rights? iii. what are the challenges facing amnesty international in their effort toward promoting human rights and strong institutions in nigeria? 2. methodology this study adopts the qualitative research method. within the qualitative approach, the study further used desk research design. the desk research design involves the collation and synthesizing of secondary sources of data or existing research or published materials about a particular subject matter to gain a broader understanding. thus, desk research design goes beyond literature review but critical examination of previous findings in line with given research questions. based on this, this study used previous works and publications from different sources about the activities of human right defenders especially amnesty international in the actualization of the udhr. 3. conceptual clarification 3.1. concept of human rights there is no universal definition of what constitute human rights. several scholars and institutions have proffered different definitions but which point in a similar direction. according to donnelly (2008), human rights imply the rights one has because one is a human being. the definition placed all human on the same footing but have not given us in-depth descriptions of the privileges all human beings need to enjoy or hazard human need to be protected from. in his submission, onwuazombe (2017) defines human rights as those rights which all human beings are given by virtue of humanity, he further identifies such rights as the right to life, freedom of thought, the dignity of the human person, fair hearing and personal freedom, conscience and religion. he describes further that these rights are natural, sacred and permanent and when denied is a violation of the law. human rights are featured in constitutions of nations and have received significant attention in the media and global discourse. however, the implementation of human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 138 human rights has always been an issue of concern to the global family. it is important to note that no country can claim to have provided absolute human rights for its citizens, the degree at which human rights are implemented varies from country to country. in authoritarian systems, human rights laws and legislations are suspended for political reasons and the issue of sovereignty of nations has always been a bottleneck on united nations as a "global government" to effectively force national governments to promote human rights. therefore, human rights promotion and protecting are left in the hands of civil societies like amnesty international. 4. concept of strong institutions the notion of strong institution emanated from the sustainable development goal 16; peace, justice and strong institution. following that notion, strong institution refers to operational state organization with responsible institutions, transparency and the rule of law. they form the basis of good governance including anti-corruption measures and are essential because it encourages development in society (government office of sweden, 2015). adam (2017) describes a strong institution as state accountability and its importance to citizens, who should be able to hold government accountable for their promises and request effective policies to address core development issues. strong institution refers to transparent and accountable institutions put in place to ensure participatory decision-making and responsive public policies that leave no one behind, and whereby citizens have unfettered access to justice and the rule of law, without which there can be no sustainable development (okai, 2019). 5. perspectives in literature human rights and strong institutions which are accountable and transparent are the focus of amnesty international. these have attracted scholarly scrutiny. many forms of research have been conducted on the subject matter leading to many findings and postulations. schneider (2002) opines that human rights groups play the most visible role in solving global human rights. alice, karen, danna and james savage (2013) concur that since 1946 there has been growing recognition of the significance of human rights and that various institutions such as government and civil society actors have developed various protection mechanisms to protect and promote human rights. however, the development according to the authors has not effectively end human abuse as many continue to suffer from human rights violations and abuses by state and non-state actors, such as the police, military, other security services and armed groups among others. it, therefore, means that there is still a long way in actualizing the universal declaration of human rights and that human rights groups such as amnesty international has more responsibilities. ban ki-moon (2016), attested to this assertion when he argued that certain governments hinder their citizens from exercising their human rights which is a violation of human rights and disassembling judicial institutions that limit executive power. ebieri favour and sheriff folarin the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 139 according to omede and rufai (2014), human right groups are agents of development in any nation because they play a crucial role in political, social, and economic development activities. they further argued that the transformation of any society or system, particularly the developing societies like nigeria depend on the effectiveness and efficiency of non-governmental organizations. one of the major roles played by non-governmental organizations which contribute to the development of societies is the protection of human rights and accountability of government institutions. developing nations are often associated with abuse of human rights, a hindrance to freedom of speech which is a catalyst for human rights, absences of rule of law, corruption and lack of transparency and accountability of institution, but non-governmental organizations like amnesty international have continued to serve as the voice of the voiceless in nations of the world especially in developing countries and improve the quality of governance and the capacity of governments to apply the principles of accountability, transparency and openness by so they serve as a correctional mechanism to check the excesses of government to avoid abuse to the human right at different dimensions. similarly, brett (as cited in schneider, 2000) assert that the effective participation of non-governmental organizations like amnesty international is important in the promotion of human right in that they empower the arrangement bodies to work proficiently and compellingly. they help in investigating states party's report at the national level; giving information to treaty bodies; aiding the spread of information, and adding to the usage of proposals by the bargain treaties bodies. the west asia-north africa institute (wana, 2018) concurs that civil society groups play a key role in monitoring human rights policies and legislation adopted by government and decisionmakers in various countries, they criticize practices that are antigovernment and advocate for the protection of the citizens' right at all levels. similarly, zafarullah and rahman (2002) observed that in the past few decades, human rights organizations have proliferated the world playing a key role in promoting human right by serving as the voice for the mistreated and the oppressed, sorting out and making an aggregate move in the interest of the oppressed. they categorically state that the intensification of human rights advocacy was motivated by the expansion of human rights issues which have become agenda of social, economic and political debate and secondly the rise of strong and accountable nongovernmental organizations (ngos) like the amnesty international with strong global support and presence. reflecting on the performance of strong human right groups which have proliferated the world particularly in bangladesh, zafarullah (as cited in zafarullah and rahmah, 2002) explained that in bangladesh, democratic practices and individual freedom have been hard to set up because of continuous military involvement in state issues. he included that the nation is beset by the absence of political agreement, feeble government authorities, and undesirable methods of political challenge, undemocratic political group structures, political and governmental support, and frail local administration. all of which created an absence of equivalent access to equity, and violation of human rights in the country. this human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 140 exposition by zafarullah indicates that in many countries in asia, human right abuses are still high after decades of the universal declaration of human rights and continuous activities of human rights organizations like amnesty international. chukwuemeka (2016) asserts that strong human right groups have shown its ability to balance the activities of international and national government's efforts in the promotion of human right across the world, especially in war-torn african countries. according to him, strong human right defenders like amnesty international have developed an in-depth knowledge of the extent human right protection, abuses and patterns in many countries as well as using their expertise in working closely with local civil society groups to promote the right of members of different communities in many african countries. however, the west africa network for peace-building (2014) explained that democratization remains a protest to maintaining peace and stability in africa and that more than 10,000 citizens in west african have died in political conflict over the years aside different kinds of other dehumanizing experiences people are facing especially during elections. for instance, in nigeria, the 2019 general elections came with a record of various forms of human rights abuses across the nation. in rivers state, there were cases of armed security agents who perpetrated the assault on electorates; many people were arrested, detained unlawfully concerning the elections. eseyin and udoh (2015) in a study titled "when rights violate rights: international protection of human rights, some necessary considerations" argues that defence of human rights is an essential component in a democratic government and that this conviction made issues important in the international law by international and regional instruments, and domestically by national law. they, however, argued that during an individual's activities, human rights are been abused in different forms. they focused on the argument that some human rights by themselves is infringement or violations of other rights, thus making the fight for human rights a complex task. the literature above shows human rights organizations have been growing in number and prominence around the world and that they have played significant roles as protectors and promoters of human rights. despite a plethora of studies about human rights and human rights organizations, there is currently a paucity of research investigating the impact of specific organizations especially prominent organization like amnesty international. most studies on human right organizations tend to lump all the organizations together and draw generalization or categorized them into domestic and international organizations. this study takes a departure from the norm by dedicating attention to amnesty international. 6. theoretical construct this study implements a theoretical approach which portrays the role of amnesty international in upholding human rights and strong institution in nigeria through the structural functionalism theory. structural functionalism posits that there is the existence of a social structure within a system and that different aspects of social structure and social organization are functionally related to one another so that what happens in one part of ebieri favour and sheriff folarin the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 141 society affects and is shaped by what happens in others. this means that relationships between members of society are organized in terms of rules (potts, 2015). the structures of the political system concerning human rights and strong institutions such as the government are not distinct and properly patterned, however, despite this, they are of huge importance. the mandates of these institutions often overlay in realism; thus, structural functionalism enables the researcher to have a clear notion concerning the role of amnesty international in realizing the human rights and strong institutions in nigeria 7. role of ai in strengthening human rights base in nigeria the name amnesty international echoes human right activism. eckel (2014) opines that amnesty international brought to fore how private initiatives can play a significant role in civil human rights engagement. in this regard, amnesty international has served as a driving force behind international human rights politics. he added that there are several groundbreaking records of the role amnesty international played in exerting pressure on government and persons to ensure that human rights are observed in policies and actions. in nigeria, the activities of amnesty international became prominent during the military regime of ibrahim babangida, although reports on nigeria were made in earlier years during the civil war activities became more active during the military regime and till date. ai embedded its basic principles which are to form a global community of human rights defenders with the principles of international solidarity in nigeria and responded to every single human right abuse in the country. the scope of operations for amnesty international in nigeria includes; ending all form of violence against women and children, protection of child right, ensuring institutions are accountable, ending all form of torture, protecting the civic space and improving the functioning platform for human right activists, guarantee freedom of expression, abolishing the death penalty and end-all death sentences enforced disappearances and extrajudicial executions, secure economic, social and cultural rights. these areas of focus for amnesty international in nigeria are because of the rising report in human right violation and lack of accountability of government institution in upholding human right and rule of law (amnesty international, 2019) amnesty international 2015 report shows that several officials of the nigeria police force and sars officers have been involved in cases of forced disappearance, killings, and unlawful detention (amnesty international, 2015). these acts taint the image of state security services that are expected to protect citizens and reveal the extent of human rights abuse in the country (balogun and baiden, 2016). for consecutive years these continuous rises of human right violation and abuse of government institution in nigeria which has been documented by amnesty international in their yearly report and the role they have a place in trying to avert these issues have been innumerable. human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 142 7.1. modes of operation there is an array of techniques which amnesty international used in its campaign to promote and protect human rights. as stated by bardarova jakovley, serafimova & loteski (2013), these include the following: letter campaigns: one of the techniques employed by amnesty international to press demands for the human right is letter campaigns. in this regard members sign, customized letters are sent to government officials and policymakers convincing them to amend the laws towards persons whose rights are violated, this was seen in the case of the letter submitted by amnesty international in nigeria to the presidential investigation panel on the compliance of armed forces with human right obligation and its rules of engagement. this letter further stated that from 2012-2017 amnesty international nigeria has sent 66 letters to the nigerian authorities and received 15 responses (amnesty international, 2017). with the development of information technologies such as social media sites like facebook and twitter, letter campaigns are very flexible as citizens and registered members of amnesty international can access platforms where they can easily sign for letters and take part in the campaigns of their choice. support for mass public demonstrations: basically, amnesty international hardly engage in a direct public demonstration, however, the organization provides support to groups that protest peacefully to press issues that pertain to human rights. in this sense, amnesty international complement efforts of groups in pursuit of goals of human rights such as the right to work, protection against all kinds of maltreatment by government, among others. for instance, amnesty nigeria has condemned nigeria's crackdown on journalist protester stating that this act obstructs the freedom of expression which is a necessary right for a democratic society like nigeria. another example was the demonstration on september 2019 which called for the release of the leader of the islamic movement in nigeria, sheikh ibrahim al-zakzaky, who has been detained since december 2015 without trial was supported by amnesty international (sahara reporters, 2016). targeted campaigns: this technique used different communication channels such as mass media and news media in which the organizations make press releases, face to face communication, and letters, and communiqué, opinion leaders among others to enlighten authorities about the outcome of their investigations as well as recommendations regarding human right issue or phenomenon. thus, target campaigns unlike letter campaign are not meant to put pressure on government or decision-makers but provide useful information for sound judgment and decision-making process. over the years, amnesty international has built a reputation as one of the most credible sources of for leader information about human right issues around the world, this information comes as yearly reports which are written for every country which amnesty international operates it. in nigeria, the yearly reports have been useful to government and citizens in pinpointing the areas of human right violations and have also drawn the attention of international bodies which help to maintain the human right and strong institution. training of local groups: amnesty international has been involved in training local groups to help maintain peace, stability and uphold human right in the society. ebieri favour and sheriff folarin the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 143 during the niger delta crisis amnesty international program included transformational training that involves education and vocational skills acquisition to help integrate the exmilitants (tobor and obudo, 2017). these training are meant to equip local organizations for effective human right promotion and protection. such sessions also serve as a platform for amnesty international and local activists to develop collaboration for effective sharing of data. provision of human rights education to citizens: amnesty international believes that the fight for human right requires the provision of sound education regarding human right among citizens. where people are knowledgeable about their rights, they are more likely to stand to protect such right. based on these understanding amnesty international creates different platforms in which the citizens are provided with useful information about human right as enshrined in their nation's respective constitutions as well as the universal declaration of human right. the organization equips the people with the knowledge of the process of reporting human rights abuse among others. the education is provided through the organization's various platforms especially websites as well as volunteers in different countries which includes and is accessible to nigerians. lobbying: this is a deliberate and systematic approach to influence policymakers such as legislators and other public and private leaders to support a course (human right) in their policies. lobbying is one of the major techniques employed by amnesty international. the first act of lobbying in nigeria was the establishment of its office in abuja. a former director, of amnesty international nigeria, stated the establishing the office will enable them to campaign harder, shout louder and deliver research and analysis into human rights abuses more rapidly than we could before". shaming and naming: another popular strategy employs by amnesty international in the fight toward promoting human rights around the world is called “shamming and naming”. this tactic entails damaging the reputation of human right abuses in the eyes of relevant institutions through massive condemnation (scoble & wiseberg 1974). amnesty international nigeria has engaged in the act of calling out human right violator which include certain government institutions. in june 2019, the organization called out the nigerian military for torturing civilian which was a violation of the human rights. the organization claimed that the victims of torture did not get justice and that the judicial system was unable to bring the culture to impunity to an end. on the 5th of august 2019, the organization called out the nigerian authorities to investigate the deaths of three islamic movement in nigeria (imn) members who died in police custody. these methods of naming and shaming help decrease the number of the human right violation. 7.2. challenges and criticism of amnesty international despite the significant role amnesty international is playing in nigeria from 1967 to date, the organization is not without some criticism and challenges which have continued to affect the viability of the organization in the fight against human right abuse. one of human rights and strong institutions: a study of amnesty international in nigeria the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 144 the major criticisms against amnesty international is the perception that the organization is western-centric (conor, 2009). this implies that the organization is driven by western ideologies especially as it relates to what constitute human rights. it is important to note that western cultures are often a subject of resistance in other worlds especially in the middle east and asia, thus, the activities of amnesty international in such cultures are looked with some suspiciousness. in many of such country’s membership for the organization and support is very low. another challenge amnesty nigeria is facing is the recurrent demand by the citizen and government authorities for the organization to leave nigeria. in august 2019, the organization was accused of being sponsored by the opposition party and taking sides with the nation's enemies. the protest was a result of rumours that they planned a nationwide protest by a coalition of civil organization. the protest tagged "revolution now" was supposed to hold august 5 across the country. amnesty international, however, said they will not be threatened and will continue to fight for human rights and hold government accountable (adepegba and akinkuotu, 2019). another challenge facing amnesty international and indeed other international human right groups is their lack of authoritative capacities. the universal declaration on human right is not binding on the nigerian laws. amnesty international can only draw the attention of the nigerian government and international communities to issues of human rights abuses. sometimes, the nigerian government and regimes are very slow in taking actions, hence, requires more time and resources on the side of the organizations. the plethora of such cases might significantly slow down the progress of amnesty international. 8. conclusions implementing human rights and maintaining strong institutions is an important issue that cannot be left in the hands of government because government who supposed to be protectors of human life and dignity are often the top abusers of such right through various actions and inactions. this phenomenon clearly shows the significant place of human right organizations. today, human right groups like amnesty international remain specialized institutions equipped and involve in global monitoring of human right issues. this paper has provided some insight on the activities of amnesty international in nigeria, the paper observed that since the emergence of organizations in britain in 1967, the organization has contributed to the accountability of institution and of promotion of human rights in different dimensions such as the right to life, protection against torture and economic right among others in nigeria. despite the challenges and criticism levelled against amnesty international by some sections, there is no debate that amnesty international today remains the strongest institution and global leader in human rights promotion and protection. ebieri favour and sheriff folarin the age of human rights journal, 16 (june 2021) pp. 135-147 issn: 2340-9592 doi: 10.17561/tahrj.v16.6092 145 9. recommendations based on the observed challenges and criticism facing amnesty international, this paper puts forward the following recommendations: i. amnesty international should do more around image management and establish a firm relationship with the nigerian government and other places where the organization is seen as a tool for promotion of western ideologies. ii. there is also a need for amnesty international to create more awareness and knowledge of its activities in grassroots areas of developing countries like nigeria. this is because the top-down approach to fight for human rights is not a viable strategy. locals need to understand the ideals of amnesty as well as have easy access to engagement. references adams, b. 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(1974). human rights and amnesty international. the annals of the american academy of political and social science, 413(1), 11-26. https://doi.org/10.1177/000271627441300103 tobor, j.o and odubo, f. (2017) amnesty program as a peacebuilding initiative in niger delta, nigeria. arts and social sciences journal. j 8: 272. https://doi. org/10.4172/2151-6200.1000272 west africa network for peacebuilding (wanep) (2014). transitions and tensions in west africa: building on the strength and bridging the gap in the ecowas protocol on democracy and good governance’, wanep policy brief, november. zafarullah, h. & rahman, h. (2002). human rights, civil society and nongovernmental organizations: the nexus in bangladesh, available at: http://muse.jhu.edu/journals/hrq/summary/v024/24.4zafarullah.html. https://doi.org/10.1353/hrq.2002.0055 received: june 30th 2020 accepted: september 2nd 2020 https://doi.org/10.4324/9781315751221 https://doi.org/10.1177/000271627441300103 https://doi.org/10.4172/2151-6200.1000272 https://doi.org/10.4172/2151-6200.1000272 https://doi.org/10.1353/hrq.2002.0055 human rights and strong institutions: a study of amnesty international in nigeria abstract: 1. introduction 2. methodology 3. conceptual clarification 3.1. concept of human rights 4. concept of strong institutions 5. perspectives in literature 6. theoretical construct 7. role of ai in strengthening human rights base in nigeria 7.1. modes of operation 7.2. challenges and criticism of amnesty international 8. conclusions 9. recommendations references protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 1 protection of rights and freedoms of minors in employment: international law and experience of ukraine olena pavlichenko1, yuliya ostapenko2, dmytro kryvenko3, halyna fomina4, olha lets5 abstract: the issue of protecting the rights of minors is undoubtedly relevant. there is a tendency in society when the employment of minors in the labor market is growing. the purpose of the article is to analyze the theory and practice of legal regulation of labor of minors under ukrainian and international law and to find the optimal solution to the problematic issues that exist in this area. the article deals with the legal features of the work of minors at the national and international levels. universal international legal acts enshrine the fundamentals of protection of the rights of minors from forced labor and oblige states to set a minimum age for employment and prohibit minors from holding certain positions. national legislation extends the norms on the work of minors in accordance with their labor market, clarifies and expands the rights of minors and the employment procedure. despite the fact that the rights of child workers are clearly regulated, the state should eliminate certain shortcomings to ensure the rights and freedoms of this group of workers. the authors conclude that the term "light work" needs to be clarified, and a detailed classification of child workers depending on their age and state benefits is necessary. it is necessary to take educational measures to inform minors about their rights in the field of employment, and to develop a simplified mechanism for the protection of their rights. scientific work can contribute to consolidate ukraine's international relations with that of other countries in terms of developing bilateral relations to protect the rights of underage workers. keywords: human rights, labor rights, employment of minors, child’s rights, legal standards. 1. introduction youth is a group of people who develop very dynamically and take all modern changes the best. given the minors' desire to explore everything new, including knowledge and independence, they often strive for employment until adulthood. however, minors can fall into the trap of a dishonest employer since they are a rather vulnerable category without 1 department of life safety and law. petro vasylenko kharkiv national technical university of agriculture, 61002, 44 alchevskikh str., kharkiv, ukraine. corresponding author: olena.pavlichenko@pltch-sci.com 2 department of jurisprudence. volodymyr dahl east ukrainian national university, 93400, 59-а tsentralnyi ave., severodonetsk, ukraine. yuliya.ostapenko@sci-univ.com 3 taras shevchenko national university of kyiv, 01033, 60 volodymyrska str., kyiv, ukraine. dmytro. kryvenko@edu-knu.com 4 taras shevchenko national university of kyiv, 01033, 60 volodymyrska str., kyiv, ukraine. halyna. fomina@edu-knu.com 5 scientific institute of public law, 03035, 2a georgy kirpa str., kyiv, ukraine. olha.lets@edu.cn.ua http://10.17561/tahrj.v20.7114 mailto:olena.pavlichenko@pltch-sci.com mailto:yuliya.ostapenko@sci-univ.com mailto:dmytro.kryvenko@edu-knu.com mailto:dmytro.kryvenko@edu-knu.com mailto:halyna.fomina@edu-knu.com mailto:halyna.fomina@edu-knu.com mailto:olha.lets@edu.cn.ua protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 2 fully formed views and principles or enough experience in employment and ensuring their rights and freedoms. such a layer of society as minors requires particular treatment since they do not have the opportunity to protect their rights and defend legitimate interests due to peculiarities of their intellectual, mental, and physiological development, lack of experience and knowledge, and lack of stable views and beliefs. with this in mind, the legislator should pay special attention to the legal regulation of the employment of minors in order to form a stable and deep regulatory framework that will protect their rights and regulate the employment procedure. recently, in most countries, child labor is considered a form of exploitation and has been made illegal. in the past, child labor was widespread, nevertheless, after the emergence and recognition of the concepts of labor safety and children's rights, the scope of child labor gradually began to decline (pustova &akimov, 2021). for example, child labor in factories and mines was common in many industrialized countries of europe and america in the 19th century. children worked on a par with adults up to 14-18 hours a day (sometimes from the age of 5-6), while they were paid several times less. the famous reformer robert owen was the first to draw attention to the problem of child labor in britain. in 1816 he spoke on this issue in parliament. according to the 1900 census, there were 1.7 million minors in the united states forced to work alongside adults. already by that time child labor was prohibited in many states, but few paid attention to this violation. it was only in 1908 that the ban was extended to the whole country, but even after that it took years until the problem was really tackled. the un and the international labor organization consider child labor as exploitation. article 32 of the convention on the rights of the child guarantees the right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development”. thus, leading international organizations recognize the exploitation of child labor as illegal, leaving no other option for debate (convention on the rights of the child). despite this, forced child labor has not completely disappeared. for example, in 2021, a lawsuit was filed in the us court against the companies nestle and mars for the use of child labor eight children who claim to have been used as slaves on cocoa plantations in côte d'ivoire have launched a lawsuit against the world's largest chocolate companies. they accuse the corporations of facilitating the illegal enslavement of "thousands" of children on cocoa farms in their supply chains. the accusations against nestle and mars came from eight malian citizens who were sold into slavery as children. they were forced to pick cocoa in côte d'ivoire. this is the first time a class action lawsuit against the cocoa industry has been filed in a us court. citing studies by the u.s. state department, the international labor organization and unicef, the court documents claim that the plaintiffs' experiences of child slavery are similar to those of thousands of other minors. in the lawsuit, all eight plaintiffs describe being recruited to mali through deception. many plaintiffs report that they were poorly fed and worked long hours (balch, 2021). thus, the http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 3 lawsuit proves that minors are often unprotected in employment, and often simply become tools for exploitation. however, most countries still realize the need to protect the rights of minors from exploitation. this issue is one of the most important in the modern world. the use of the labor of minors is one of the most important problems in modern society. many countries of the world enshrine in their legislation the particular attitude of society towards such persons. factors such as labor discrimination and forced labor are obstacles to quality education and the normal development of children (tsipishchuk & konopeltseva, 2020). many minors carry out labor activities that cause irreversible physical and psychological damage. with this in mind, legal rules enshrine specific provisions on the employment of minors at both the international and national levels. today, legal science clearly distinguishes between the prohibition of forced labor and the age at which a person can enter into an employment relationship, provided that the law on the work of minors is observed and there is no coercion to such work. that is, international law, as well as the legislation of ukraine, has established the age at which persons can be employed in order to protect minors from coercion. therefore, in the future, when considering certain problems regarding the employment of minors, the author will consider the category of minors whose work is permitted by law. modern state policy is aimed at improving the legal regulation of those groups of the population that are generally insufficiently protected. they are provided for by many state projects, including the development of a barrier-free policy in accordance with the resolution of the cabinet of ministers of ukraine no. 537 “on approval of the procedure for monitoring and assessing the barrier-free degree of objects of physical environment and services for persons with disabilities” (resolution of the cabinet of ministers of ukraine no. 537..., 2021). in the context of the domestic policy and the world trend toward increasing protection of human rights, there is a particular scientific and practical interest in the problem of social integration of the younger generation and their adaptation to the labor market and legal regulation of the employment procedure. even though a legislative framework to provide guarantees for the implementation of the legal status of minors is significantly developed, there are violations of labor legislation in this area in practice (solopov, 2020). since the issue of employment of minors is urgent in modern realities, it is no coincidence that the international community has established legal standards, legal foundations for involving minors in labor activities, and a system for supporting and protecting them in this process. minor employees are still a weak link in labor relations, which leads to difficulties in independently protecting their rights and performing their labor duties on an equal footing with adult employees. such actions will work for the benefit of the country's development and the world as a whole (eriashvili et al., 2021). it is essential to highlight the dilemma of legal regulation of the work of persons who have not reached the age of majority. the legislator in the field of labor should take into account the following factors: social adaptation, low level of legal awareness of adolescents, http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 4 health, mental state, and sensitivity of a weak mental organization. adolescents are prone to impulsive actions that do not always favorably affect them. in labor legislation, separate provisions are devoted to the employment of minors (chiglintseva & saifutdinova, 2021it is worth analyzing them to form a holistic view of legal rules and understand how law enforcement works. 2. methods the principal research method used in the article is the formal legal method, which ensures the reliability of the results obtained and the achievement of the objectives set. the author used the formal legal method to analyze the structure and content of the rules of labor law governing the labor relations of minors and other workers, who are related to ensuring guarantees of the rights of minors. the authors used the same method to analyze the legal rules of ukraine in studying and processing the dogma of law. the formal logical method also allowed the logical processing of the rules of law with the legal technology and identifying inaccuracies in the legal regulation of particular issues related to the research topic. the rules of international law were examined by the formal legal method. here, the categories were considered as extremely broad concepts or extremely general, fundamental concepts. the first ones reflect the most general and essential properties, signs, connections, and relations of objects, phenomena of the objective world. the second ones reflect the most significant, natural connections and relations between reality and cognition. the use of the system-structural method provided an opportunity to consider labor legislation as a single system of labor law rules, the content of which is determined by the need to comply with guarantees of the rights of minors. the authors resorted to this method to consider the classification of minors by age (14-15 years; 15-16 years; 16-18 years) and state benefits (minors who do not work; minors who combine work and study; minors do not study but work). moreover, the system-structural method was applied to combine the existing problems in the legal regulation and ways to solve them. in this article, a functional method allowed distinguishing separate groups of legal rules according to their functional focus. in the course of the study, the author applied methods of scientific cognition to study the features of labor of minors in accordance with the legal doctrine. the same method determined the separation of the constituent elements of the legal status of minors in the system of regulation of labor relations. the authors distinguished such elements as legal personality, rights and obligations, legal responsibility, and guarantees of the rights of minors. the method of scientific cognition showed the need to clarify ways to improve the situation with the employment of minors, and the conclusions of the article reflected this need. the authors used the historical and logical method to consider the ilo formation in retrospect, the inclusion of the protection of minor labor in its tasks, and the formation of an appropriate convention mechanism to ensure their rights. in particular, the above concerns the following: the prohibition to work on certain types of work, regulation http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 5 of working hours, mandatory medical examination, the establishment of minimum employment age, etc. the comparative method provides the possibility to determine similarities and differences in certain concepts used in the article. the author of the article used this method to distinguish the differences between the employment of adults and minors and working conditions, based on theoretical approaches of scientists and legal differences. the comparative method also provided an opportunity to highlight shortcomings in the legal regulation of the rights of such citizens at the legislative level. the method of analysis and synthesis allowed studying theoretical information, international legal acts, and national legislation of ukraine and identifying the problems existing in the field under the study and ways to solve them on their basis. this method provided a general study of the international legal framework for the protection of human rights in the context of the protection of children's labor rights. 3. results 3.1. general theoretical approaches to understanding the legal status of a minor worker the consolidation of a special treatment of society towards the younger generation at the legislative level is a feature existing in the legislation of most countries. among other rights of citizens of minority age, the right to work and safe working conditions are established by legal acts of international and national legislation. young people are endowed with a special legal status under their age and other characteristic features, including the specifics of social formation and development and a special place in the structure of society. in addition, if such specifics are present, we can state that minors as subjects of labor relations are endowed with a specific status (inshyn, 2009). the regulation of labor relations with minors requires the labor legislation to have regard to the level of their intellectual and voluntary development, the features of the physical development of persons who have not reached adulthood, and the task of protecting their mental health. in general, scientists consider the employment of minors as a system of specific organizational, legal, and economic measures aimed at ensuring the employment of juveniles as a particular category of workers (irioglu, 2018). buyanova (2005) notes the legal status of minor workers consists of legal personality, labor rights and obligations, legal responsibility, and guarantees of rights. indeed, distinguishing these categories is important when considering a legal status of minor employees because in-depth understanding of the constituent elements of the legal status is necessary for its further protection in labor relations. distinguishing of these very elements have a logical foundation. the first one, sibgled out by the scholar, is a legal personality. any legitimate legal phenomenon does not exist without this element since it provides legal subjects with a possibility to take part in legal realations. thus, legal relations are not possible without the legal personality. http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 6 the second constituent element is labor rights and duties, which seem to be quite relevant, because they are part of labor relations and, thus, are indispensable within labor relations with minors. legal responsibility is the third compulsory element of legal relations parties who must bear legal responsibility for their actions if labor law is violated. after all, law guarantees are aimed to protect the rights of labor relations parties, in particular, a minor worker (in cases considered in this article). taking into account the above-mentioned, we agree with buyanova’s opinion and believe these constituent elements of the legal status of minor to be the most relevant. there are the following features of the legal status of minors in the field of labor relations: the age is a primary criterion for determining the labor legal personality of minors; the rights and obligations of minors are statutory and can be supplemented with respect to particular elements of labor relations; the scope of financial liability is limited for minor workers; minor workers belong to the category of persons who have the greatest number of guarantees of labor rights (solopov, 2020). in the system of regulation of labor relations, the legal status of minors also consists of legal personality, rights and obligations, legal responsibility, and guarantees of the rights of minors. however, it appears as a more complex concept, which fully includes the legal status of minors. in terms of ensuring guarantees of the rights of minors, it also determines the labor status of persons with family responsibilities and persons who interact with minors in the course of work. the position of minor workers is that a partial restriction on the use of general rules governing labor relations sets particular limits on financial liability. there are even guarantees of an additional nature of compliance with the labor rights of workers who have not reached the age of eighteen (ang, 2009). it is worth noting that guarantees are the means by which the application of human rights and freedoms is implemented. the state policy should be aimed at reducing and preventing threats in the social sphere, guaranteeing the social protection of an individual, and improving the standard and quality of life of the population (saifutdinova, 2020). formation of the state policy on protecting minor workers in this very case will not only ensure a higher level of protections of such workers’ rights but also will increase the coefficient of the involvement of minor workers in labor relations. this will also have a positive impact on the development of the youth (work experience and seniority; getting acquianted with legal foundations of tax payments; concluding employment agreements; skills acquisition and a conscious choice of a future profession) and the state (taxes payments; new youth-oriented ideas aimed at the development of the country). it is worth noting that the feature of labor legal personality is a volitional criterion associated with the actual ability of a person to work (geikhman & dmitrieva, 2011). the application of such criterion also seem relevant because the subjects of labor relations do not emerge from the appearance of a real capacity to carry out labor activities but from the appearance of a labor personality. consequently, both the legal and labor status of a minor worker have specific features. lawyers rightly believe the subjects of labor relations arise rather from the emergence of labor legal personality than a real ability to carry out labor activity. thus, the legal and employment status of a minor worker is characterized by its inherent features. http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 7 3.2. international legal rules for the protection of the rights of minors in employment international regulation of these legal relations began to develop actively at the beginning of the twentieth century. at present, we have a holistic and regulated system of international legislation, which regulates the legal status of minor workers and guarantees the implementation and exercise of all benefits, advantages, and features during their employment. first of all, there are a number of international legal instruments in international law that govern the right to work and protection from forced labor. let's consider some of them. for example, the provisions of art. 23 of the universal declaration of human rights (hereinafter – the udhr) states that every person has the right to work, free choice of place of work, and just and favorable conditions of work. art. 4, at the same time, regulates the prohibition of forced and bonded labor, and art. 1 emphasizes the equality of all human beings (universal declaration of human rights, 1948). it is also worth drawing attention to the international covenant on economic, social and cultural rights (hereinafter – icescr) of 1966. art. 6 recognizes the human right to work and the duty of states to ensure such an opportunity for their citizens. the provisions of art. 7 provide for the need to create just and favorable working conditions for all workers (international covenant on economic, social and cultural rights, 1966). in addition, there are many other international legal instruments adopted, including conventions of the international labour organization (hereinafter – ilo) and regional international treaties regulating the right to work, decent working conditions, equality and non-discrimination, and the prohibition of forced labor, etc. however, the labor of minors is also regulated separately at the international legal level. the un convention on the rights of the child of 1989 is the main international document in the field of regulation and protection of the rights, freedoms, and legitimate interests of minors. it enshrines the foundations of the legal status of children, which covers all possible spheres of their life. a minor can be the subject of many legal relations, including labor relations. it is worth considering art. 32 of the convention, which imposes on states the obligation to recognize the right of the child to be protected from economic exploitation and performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health and development. in addition, states should provide the following conditions for the protection of the rights of minor workers at the legislative level: a minimum age for admission to employment; an appropriate regulation of the hours and conditions of employment; providing for appropriate penalties or other sanctions to ensure the effective enforcement of this article (convention on the rights of the child, 1989). in general, the convention on the rights of the child plays a crucial role in defining and regulating the rights of minors, which should be followed and implemented by the un member states that have ratified it. to this date, 196 states have ratified the convention, and only the united states has signed but not ratified it. such a number of accessions indicates the high importance http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 8 of the rules provided by the convention on the rights of the child for the protection of the rights of children, a vulnerable category, around the world (convention on the rights of the child, 1989). in addition, many other international legal instruments regulate the protection of the rights of minor workers. the international labor organization (hereinafter – ilo) is worth special attention. the organization was established in 1919 and has officially become a specialized agency of the united nations since 1946. the protection of the child was one of the main goals of the ilo even far back in 1919. the protection of minors was already mentioned in the ilo constitution, which was part of the treaty of versailles after the first world war. the peace treaties relied on two pillars, namely a system of collective security governed by the league of nations and the creation of social justice under the auspices of the ilo. the protection of children who were exploited at factories and suffered from the war was a crucial component in building social peace (dahlén, 2008). the ilo, as an international organization, encompasses a wide range of people since its participants can be representatives of workers and entrepreneurs of different countries, in addition to representatives of states (morozov, 2011). all participants have equal rights and opportunities to join the ilo, regardless of their social and financial situation in society, and this is its key feature. therefore, this international organization takes the complete, balanced, and comprehensive decisions at most since it considers the interests of all its participants. the ilo has adopted a large number of important conventions, the provisions of which are aimed at protecting the right to labor and labor rights. the above also includes several conventions on the protection of the rights of minor workers. first of all, the authors note the ilo convention no. 138 on the minimum age for admission to employment as of 1973. its provisions are essential in the context of the protection of children from forced labor. it imposes on the ratifying states the obligation to implement a state policy aimed at ensuring the effective abolition of child labor and gradually raising the minimum age for admission to employment. in addition, each state which ratifies the said convention should specify the minimum age for admission to employment in its application; no person under that age may be allowed to work. the convention also stipulates that the minimum age for admission to employment or work which by its nature or circumstances may endanger the health, safety, or morals of young persons shall not be less than 18 years (convention no. 138…, 1973). thus, the said convention protects the rights of minors from forced labor, thereby providing them with the opportunity for normal growth, education, and development. among them, there are the following: ilo convention no. 90 on the night work of young persons in industry as of 1948 (convention no. 90…, 1948); ilo convention no. 77 on medical examination for fitness for employment in industry of children and young persons as of 1948 (convention no. 77…, 1948); ilo convention no. 112 on the minimum age for admission to employment as fishermen as of 1959 (convention no. 112…, 1959); ilo convention no. 123 on minimum age for admission to employment http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 9 underground in mines as of 1965 (the said convention establishes 16 years as the minimum age for this type of work) (convention no. 123…, 1965), and others. the conventions listed above are essential for the formation of national legislation of world countries since they form the basis for the domestic system of lawmaking and national regulatory legal acts. the above conventions define the minimum age an employer has the right to employ a minor worker in different production areas. the authors of this article also mention two legal acts of the regional level adopted within the eu – the european social charter (revised) as of 1996 and the community charter of the fundamental social rights of workers as of 1989. regarding the first document, art. 7 of this charter establishes that the minimum age for admission to employment with hazardous and harmful working conditions is 18 years. in addition, the document places a duty to provide special protection to adolescents against physical and moral hazards. the charter also provides for the need the workers under 18 years of age to be subject to regular medical control (telichko, 2016). the charter also establishes that the minimum age for admission to light work can be 15 years (european social charter (revised), 1996). the second mentioned legal act also contains provisions aimed at protecting minor workers. in particular, paragraph 22 emphasizes that states should take measures to improve the legislation of the state regulating the work of minors and enshrine the prohibition of night work for persons under the age of 18 (community charter of the fundamental social rights of workers, 1989). thus, the consolidation of norms for the protection of the labor rights of minors at both the universal and regional levels indicates the issue under the study is of exceptionally high relevance at the international level. the national legislation of states should properly regulate this issue for the protection of minors on their territory in accordance with the requirements and standards established by international law. 3.3. ukraine’s legislation on protection of the rights of minor workers ukrainian legislation also provides for the protection of minors in employment. the following legal acts include the relevant norms: the labor code of ukraine (hereinafter – the labor code) of 1971, the law of ukraine on labor protection of 1992, the law of ukraine on childhood protection of 2001, the law of ukraine on employment of 2012, and numerous by-laws. let us consider in more detail the provisions of the mentioned legal acts. chapter xiii, entitled “work of youth,” of the labor code regulates labor relations with the involvement of minors. according to article 187 of the labor code, adults and minors generally have equal rights in labor relations, but the latter are provided with benefits in particular issues, including working hours, labor protection, and others. legislation, in particular article 190 of the labor code of ukraine, prohibits the employment of minors in heavy work and work in harmful or hazardous working conditions, as well as in underground work (labor code of ukraine, 1971). the list of these types of work is approved by the order of the ministry of health of ukraine dated 1994 no. 46 (1994). this normative act contains 37 types of work http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 10 and specific names of professions that cannot be exercised by minors, which include a significant number of subtypes of work and professions. in particular, this list prohibits the participation of minors in mining, construction of subways, tunnels and underground facilities for special purposes, production and transmission of electricity and heat, oil and gas production, production of medicines, etc. (order of the ministry of health of ukraine no. 46, 1994). the reason for the provision of such benefits is the features of young organisms and the lack of the necessary training in them (kisel, 2019). the provision of art. 188 of the labor code enshrines the general rule on the minimum age for admission to the employment of 16 years of age. however, the working age may be reduced to 15 years of age with the consent of one of the parents. according to the labor code, persons aged 14 to 15 years may have the possibility of employment, provided that they perform “light work” that does not interfere with education and does not harm health exclusively during free time (labor code of ukraine, 1971). at the same time, there is no definition of “light work” provided. in order to encourage minors to work, it is allowed to employ school and college students subject to reaching the age of 14, parental consent, work outside school hours, and light work (medinskaya, 2016). in our opinion, the enshrinement of the definition of light work in the labor code of ukraine will contribute to strengthening the guarantees of protection of labor rights of minors. the signs of such work will include the presence of simple and clearly defined tasks, the ability to perform such work without significant physical effort, limited working hours, regular breaks, etc. in addition, the legislation regulates the length of the working day for minors. in particular, the working hours for minors from 16 to 18 years old are 36 hours per week, and 24 hours per week are for persons from 15 to 16 years old and students from 14 to 15 years old working during holidays. the labor code also provides for the obligation of a minor to undergo a medical examination before being employed. in addition, article 190 of the labor code prohibits the use of work of minors in heavy work, work with harmful or dangerous working conditions, and underground work (labor code of ukraine, 1971). it is worth noting that the law of ukraine on labor protection of 1992 contains quite similar provisions to the labor code in the matter of prohibiting the employment of minors in heavy work. under art. 11, it is prohibited to involve minors in heavy work and work with harmful or dangerous working conditions, underground work, night work, overtime work, and work on weekends. the same article prohibits the lifting and moving of things by minors, the weight of which exceeds the limit norms established for them under the list of heavy work and work with harmful and dangerous working conditions, the limit norms for lifting and moving heavy things, approved by the central executive body in the field of health care (law of ukraine no. 2694-xii..., 1992). according to the law of ukraine on childhood protection of 2001, the tasks of the state include, among others, the creation of safe and healthy working conditions. art. 21 of the said law is important in the context of the topic under the study. it establishes the minimum age of children for admission to employment is 16 years, but they can be employed from the age of 15 if such work does not harm their health and education, and http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 11 there is the consent of one of the parents. the law also provides for the limitation of working hours of minor workers and the prohibition to take part in heavy work. children are employed only after a preliminary medical examination in the presence of a written medical conclusion that there are no contraindications. the authors can state the law of ukraine on childhood protection, in general, repeats the provisions of the labor code, expanding and specifying them. among the provisions that require special attention, the law enshrines a list of the worst forms of child labor. it is worth noting the law also establishes the right to engage in entrepreneurial activity for persons who have reached the age of 16 and the possibility of minors to form and join trade unions (law of ukraine no 2402-iii..., 2001). therefore, the domestic legislation contains properly formulated legal rules aimed simultaneously at attracting minors to work and protecting their labor rights and freedoms in connection with their special legal status. the aim of the current legal rules of the ukrainian legislation is the protection of children. in addition, they contain the requirements of international legal acts adopted in the relevant field. 3.4. employment of minors: problems and ways of solving them despite the efforts of the legislator to protect minors in employment as much as possible, some problems need solving in order to ensure an adequate level of protection of labor rights of minors. first of all, it is worth paying attention to the previously mentioned absence of the definition of light work in the labor code, which can cause contradictions and incorrect application of the legal rule due to its subjective interpretation. therefore, some scholars highlight the existing gap in the legislation. the ukrainian researcher telichko express one of the most interesting opinions. she emphasizes there must be a clear definition of light work enshrined in addition to the regulation of the permit for such work for minors aged 14-15 years (telichko, 2016). however, despite the fact that the scholar paid attention to such a significant legal gap, she does not provide her own recommendations to solve this problem. we believe it would be possible to formulate the definition of this phenomenon under consideration in order to eschew possible legal discrepancies. at the same time, the researcher kisel holds if an appropriate definition is enshrined in the labor code, it will strengthen guarantees of protection of the labor rights of minors (kisel, 2019). the authors of this article believe it is necessary not only to provide a legal interpretation of light work but also to distinguish the following features inherent in it: strictly formulated and simple tasks; no need to make physical efforts; the ability to take regular breaks; a limited duration of the execution time (working day). the researcher reus defines two criteria in the occurrence of work capacity, agedependent and volitional, and the authors of this article consider them appropriate. by the first criterion, reus means the attainment of a minor person of the maximum age allowed by law. by the second criterion, the researcher understands the ability (mental and physical) and desire to enter into labor relations. having conducted the analysis, reus proposes to bring more clarity to the classification of minor workers. the researcher suggests dividing http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 12 them into two categories by age and state benefits. the division of minor workers by age is as follows: under 14 years of age (or minors who cannot work under the law); 14-15 years of age; 15-16 years of age; 16-18 years of age (reus, 2003). the authors of this article consider this division important since the legislator has restrictions on the work of minors depending on their age, and the separation of particular categories will simplify approaches to the legal regulation of their employment. having analyzed the academic approach of reus, it is impossible to disagree that her remarks on distinguishing the criteria is completely justifiable and important because the legislator contains the restrictions as regards to working of minors depending on their age, while distinguishing certain categories will allow to facilitate the approaches to legal regulations of their employment. returning to the classification of minors by state benefits, reus distinguishes between minors who do not work, minors who combine work and study, and minors who work and do not study (reus, 2003). since minors are not sufficiently aware of their labor rights, another problem arises, which concerns unscrupulous employers, who can restrict the rights of minor workers, violate their interests, or manipulate them for their purposes. in order to ensure that the younger generation does not have problems with the exercise of their legal labor rights, it is advisable to conduct educational programs and awareness-raising activities at the state level to inform working children of their rights and obligations and mechanisms for protecting violated labor rights. hence, there is also a need to create an accessible and understandable institutional mechanism at the state level which allows minors to protect their labor rights. minors often do not know where to turn in case of violation of their rights due to their age and lack of knowledge. following this purpose, it is appropriate to create an institutional mechanism for minors with a simplified application procedure to ensure the protection of their rights from unscrupulous employers or forced labor. in addition, such a simplified mechanism should be available in the form of an online application. the reason is the digitalization of all spheres of human life and the simplification of access to public services and information. moreover, since minors have exceptional skills in using technology, it will be convenient for them to exercise their right to appeal or protect violated labor or natural rights using the internet platform or online form of appeal. 4. discussion eriashvili, sarbaev, and kukharev (2021) drew important conclusions on the system of international legal regulation of the rights of minors. in their work, they note the issue of legal regulation of the employment of minors is significant in the system of labor relations today. moreover, any state should define the improvement of labor legislation in part regulating the work of minors as their foremost task. minors are the younger generation on which the future of all civilization depends. accordingly, it is necessary to competently and correctly use the work of this category of the population to obtain maximum potential and opportunities with a minimum probability of negative consequences for the health of minors. therefore, the researchers comprehensively studied the rules of international law http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 13 on the protection of the rights of minors and analyzed them in the context of national legal acts and current challenges in the relevant field. they emphasize activities of minors are very widely regulated by regulatory legal acts and ensured by many regulations, laws, and conventions (eriashvili et al., 2021). moreover, karpenko, ivanova, and kalyuzhna (2020), a group of scientists, drew important conclusions in the context of the legal regulation of the labor of minors. they studied the ukrainian legislation on the protection of the rights of minors and compared it with international norms devoted to similar problems. in addition, the scientists highlighted some problematic issues that exist in the studied field and proposed comprehensive approaches to their solutions. having studied the ukrainian legislation, they substantiated that working minors are a special category of the population provided with additional labor benefits and guarantees in case of labor activity. these guarantees take into account the age and health of minors and working conditions at the enterprise. in addition, the scientists focus their attention on the need to improve domestic law regarding the employment of minor workers (karpenko et al., 2020). following this idea, the work by irioglu seems interesting in the context of the topic under the study. the scientist examined the features of the employment of minors by comparing the labor status of minor workers and adult workers. in addition, the author focused on the following issues related to the main conditions of employment of a minor: the emergence of labor legal personality, the registration of labor relations, working hours, remuneration, and the procedure for dismissing a minor (irioglu, 2018). it is also worth considering ang’s study in the context of the analysis of the protection of minors' rights in employment. the researcher notes the need for a fundamentally new approach to the legal regulation of the labor of minors. thus, ang emphasizes the issue of the labor rights of adolescents deserves the legislation pays more attention to it since good intentions of the law frequently contradict the legitimate interests of adolescents (ang, 2009). in addition, kisel carried out an in-depth study and analysis of domestic legislation in the field of protection of the rights of minors in employment. the researcher described domestic legal instruments aimed at occupational safety, ensuring just working conditions, and protecting the rights and freedoms of minor workers. it is worth mentioning that kisel devoted special attention to the regulation of working hours, working conditions, and the health of employees. based on the conducted analysis of ukrainian law on the topic under the study, kisel highlighted the shortcomings of legal regulation and the problems in the employment of minors and suggested ways to eliminate and improve them. the researcher identifies the steps that should be taken to protect the rights of minor workers during employment (kisel, 2019). the following ukrainian and foreign researchers studied particular aspects of the legal regulation of the labor of minors: buyanova (2005), geikhman and dmitrieva (2011), inshyn (2009), kisel (2019), medinskaya (2016), morozov (2011), reus (2003), saifutdinova (2020), solopov (2020), telichko (2016), tsipishchuk and konopeltseva http://10.17561/tahrj.v20.7114 protection of rights and freedoms of minors in employment: international law and experience of ukraine the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 14 (2020). even though scientific research on the issue under the study is available, and there is a legal basis for the protection of the rights of minors during employment, the issue still does not have a full regulation in the legal aspect. in addition, minors often face violations of their rights during employment and do not have enough knowledge and experience for adequate protection of their rights. thus, the study of the features of the employment of minors requires a more detailed analysis at the research level in order to find the most beneficial ways of improvement. 5. conclusion the authors of this article can state that labor relations with minors are specific and require more attention and legal protection on the part of the state. the improvement of labor legislation on the regulation of the labor of minors leads to the annual increase in the number of minors who want to get a job, and this, in turn, positively influences the general development of the country. the younger generation is the future of any state and the world, so the active development and improvement of legislation in the field of employment support and regulation of labor relations creates a solid foundation for the development and prosperity of the entire world community. the entitlement of labor rights to minors should have certain legal guarantees those benefits and legislative prohibitions that would protect this category of workers from many problems, including pressure from the employer, reducing personal time, and exploitation in heavy work. such a prohibition happens to be since work should not harm the health and moral development of the individual. the state carries out the representation and protection of the rights of employees who have not reached the age of majority, which acts as a guarantee of protection of the labor and legal status of minors and plays a vital role in the development of the institution of labor law in general. the work of a child under the age of majority does not have any strict objections from society unless it relies on legal prohibitions and is not close to labor exploitation. moreover, the will of the child is not enough; the emergence of labor relations engages the legal representatives of the child, the guardianship authority, the state labor inspectorate, and the commission for minors. the state encourages early involvement in work, seeking to improve labor and family laws to ensure better working conditions. the institute of minors' labor, which receives increasing importance in the conditions of the developing economic system, will subsequently eliminate legal and practical contradictions, obtaining the most effective development. first, we believe that it is advisable to consolidate the definition of "light work", its characteristic features, such as safety, short working hours, as well as an exhaustive list of these works for underage workers. for this purpose, we consider it appropriate to adopt a special regulatory act. secondly, it is relevant to recognize as invalid the regulation on the procedure of labor and vocational training of minors in professions related to work in harmful and difficult working conditions, as well as high-risk work of 30.12.1994 no. 130. instead, we propose to establish a ban on internships at enterprises with harmful working conditions. thirdly, there is now a need to oblige the employer to conduct free http://10.17561/tahrj.v20.7114 olena pavlichenko, yuliya ostapenko, dmytro kryvenko, halyna fomina, olha lets the age of human rights journal, 20 (june 2023), e7114 issn: 2340-9592 doi: 10.17561/tahrj.v20.7114 15 extraordinary medical examinations for underage workers and to ensure special medical supervision of the health of young workers after they stop working before reaching the age of eighteen, which will fully comply with the requirements of the directive of the council of the european union, 1991 № 91/383 eec (1991). in national legislation, in particular within the legal doctrine and the draft labor code of ukraine, it is necessary to pay attention to the concept of labor protection of developed western countries; to strengthen the influence of social partners on improving the situation in the field of labor protection of underage workers. among the practical steps aimed at improving the existing legislation on the protection of minors in employment, it is necessary to adopt the following: to provide an interpretation and determine the features of the concept of light work at the legislative level; to classify minors in more detail depending on age and state benefits; to conduct educational measures to inform minors of their rights, including in the field of employment; to develop a simplified mechanism for the protection of minors of their violated rights. the mentioned list of practical measures is vital in order to strengthen the legal basis of minors’ employment, protect their rights and prevent possible violations of their rights as a result of legal gaps. apart from that, effective mechanisms for protecting the rights of minor workers will lay foundations for the growth of the young generation’s interest in participating in labor relations in different economic sectors. as a result, this will lead to the impovements for both the state (in the form of taxes, future specialists’ training, and the development of innovations under the influence of the youth) and futher development of minors as personalities and citizens. finally, the success of any development consists in the effective legal system, which embraces a wide range of relations and regulates completely and thoroughly all aspects of the 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(2020). on some features of the regulation of juvenile labor in ukraine. legal scientific electronic journal, 2, 184186. https://doi.org/10.32782/2524-0374/2020-2/48 universal declaration of human rights. 1948 retrieved from: https://www.un.org/en/ about-us/universal-declaration-of-human-rights. received: 4th may 2022 accepted: 16th january 2023 http://10.17561/tahrj.v20.7114 https://doi.org/10.32782/2524-0374/2020-2/48 https://www.un.org/en/about-us/universal-declaration-of-human-rights. https://www.un.org/en/about-us/universal-declaration-of-human-rights. protection of rights and freedoms of minors in employment: international law and experience of ukrai abstract 1. introduction 2. methods 3. results 3.1. general theoretical approaches to understanding the legal status of a minor worker 3.2. international legal rules for the protection of the rights of minors in employment 3.3. ukraine’s legislation on protection of the rights of minor workers 3.4. employment of minors: problems and ways of solving them 4. discussion 5. conclusion references costly signals? democracy aid shocks and political repression, 1981-2013 the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 146 costly signals? democracy aid shocks and political repression, 1981-2013 allegra e. hernandez1; james m. scott2 abstract developed states increasingly turned to democracy assistance strategies as the cold war came to an end. a number of recent studies conclude that such aid positively affected democratization in recipients. but, like foreign aid, democracy assistance allocations are subject to change, sometimes dramatically. in foreign aid, sudden, sizable reductions – or aid shocks (e.g., nielsen et al. 2011) – can have severe consequences, precipitating conflict in the recipient state. how do democracy aid shocks affect recipient states? this analysis examines the effects of sudden withdrawals of democracy aid – or democracy aid shocks – by the u.s. on recipient regime behavior, specifically, their treatment of citizens and civil society groups. we argue that democracy aid shocks trigger repressive action by recipients resulting in harmful human rights practices by the regime. examining u.s. democracy aid to the developing world from 19822013, we find that, after controlling for other relevant factors likely to affect the human rights practices of a regime, democracy aid shocks are associated with subsequent repression of human rights in the recipient state. our analysis thus sheds light on an external factor affecting human rights practices within states, as well as an important element of the consequences of democracy aid decisions. we conclude by assessing the implications for democracy promotion strategies and human rights behavior. keywords: democracy aid, aid shocks, human rights, democratization summary: 1. costly signals? democracy aid shocks and political repression, 1981-2013. 2. democracy aid in context. 3. democracy aid shocks and human rights. 4. data and methods. 5. results. appendix. 1. costly signals? democracy aid shocks and political repression, 1981-2013 aid from developed states to support and promote democracy in other countries grew into an increasingly significant component of foreign aid strategy as the cold war came to an end and the post-cold war world began. numerous recent studies conclude that such aid positively affected democratization and human rights behavior in recipients (e.g., dietrich and wright 2015; finkel et al. 2007; heinrich and loftis 2017; kalyvitis and vlachaki 2010; scott 2012; scott and steele 2011). but, like foreign aid, democracy assistance allocations are subject to change, sometimes dramatically, as donors reconsider their priorities, the possibilities and progress in a potential recipient, and conditionalities they wish to impose. in the foreign aid field, sudden, sizable reductions – or aid shocks (e.g., nielsen et al. 2011) – can have severe consequences, precipitating conflict in the recipient state. should we anticipate a similar result for democracy assistance in areas related to democracy and human rights? how do democracy aid shocks affect recipient states? 1 department of policital science, rice university, usa (aeh9@rice.edu). 2 department of political science, texas christian university, usa (j.scott@tcu.edu). mailto:mailto:aeh9%40rice.edu?subject= mailto:mailto:j.scott%40tcu.edu?subject= allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 147 we examine the effects of a sudden reduction of democracy aid – or a democracy aid shock – on recipient regimes, specifically, on their treatment of citizens. focusing on abrupt reductions of democracy aid to civil society groups, we examine u.s. democracy assistance to the developing world from 1981-2013. while this analysis focuses on the effects of shocks to u.s. assistance, it is applicable more generally to the consequences of democracy aid shocks from other donors as well. we argue that these democracy aid shocks are likely to trigger repressive action by recipient state regimes by weakening civil society actors vis-à-vis the regime and by simultaneously signaling regimes that human rights and democracy are no longer important to donors. this combination, we argue, incentivizes regimes to engage in harmful human rights practices. our empirical tests of the human rights effects of democracy aid shocks provide support for our theorized relationship, controlling for other relevant factors likely to affect the human rights practices of the regime. our findings thus shed light on a significant external factor affecting human rights practices within states, as well as an important consequence of democracy aid decisions. in particular, our evidence indicates that democracy aid shocks have significant, negative, and perhaps unintended consequences in the lives and wellbeing of many people and are likely to necessitate subsequent difficult policy decisions to address their impact. 2. democracy aid in context although foreign aid is frequently utilized as a tool by states to accomplish foreign policy goals, prior to the end of the cold war, us foreign aid was rarely used to promote or support the democratization of states. rather, the us used foreign aid to deter the spread of communism and the influence of the soviet union (scott and carter 2019). however, as the cold war wound down, the u.s. and other donor states increasingly developed foreign aid strategies to promote democracy globally (e.g., bridoux and kurki 2014; meernik et al. 1998; mitchell 2016; scott and carter 2019). according to aiddata (tierney et al. 2011), democracy aid from developed states grew from negligible amounts ranging from 0-2% before the end of the cold war to 1015% of foreign aid by the 2000s. for the us, democracy assistance grew from less than 2% of aid to about 14% from 1975-2010 (scott and carter 2019). most us democracy aid is administered by the us agency for international development (usaid), which provides targeted, relatively small aid packages to promote and support democracy and build capacity in individuals, groups, and institutions in the recipient state. us democracy aid goes to civil society organizations (about one-third of us democracy aid) and to political parties and political institutions (about two-thirds of us democracy aid). studies of foreign aid and democracy aid generally examine the determinants of their allocation or their effects on such things as economic growth, human rights, and/ or democracy. in terms of allocations, studies of both foreign aid and democracy aid conclude that complex calculations involving donor interests and relationships, recipient needs, humanitarian and ideational purposes, feasibility concerns, bargaining with recipients, media attention, and others drive aid decisions (e.g., alesina and dollar 2000; apodaca and stohl 1999; balla and reinhardt 2008; boutton and carter 2014; dietrich costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 148 2016; drury et al. 2005; heinrich 2013; heinrich et al. 2018; mckinlay and little 1977; nielsen 2013; nielsen and nielson 2010; peterson and scott 2018; scott and carter 2019; scott et al. 2020). studies of foreign aid outcomes examine its effects on development, human rights, democracy, conflict, and a variety of other matters (see, for example, apodaca 2017; dasandi and erez 2017; findley 2018; girod 2018; yiew and lau 2018). with respect to democracy in particular, most analyses conclude that general foreign aid does not promote democracy (e.g., knack 2004), but more targeted and focused democracy aid is another matter. recent research concludes that democracy aid is likely to promote democratization in recipient states (e.g., askarov and doucouliagos 2013; dietrich and wright 2015; finkel et al. 2007; heinrich and loftis 2017; kalyvitis and vlachaki 2010; scott and steele 2011). foreign aid and democracy aid also have distinct and different relationships to human rights. some studies argue that recipient human rights performance affects foreign aid allocation, especially at the selection or “gatekeeping” stage (e.g., (e.g., apodaca and stohl 1999; blanton 2005; cingranelli and pasquarello 1985; meernik et al. 1998). foreign aid’s effect on human rights is less clear. for example, dasandi and erez (2019) argue that foreign aid contributes to both economic growth and human rights repression, while neumayer (2003) and regan (1995) find little connection. the link between democracy aid and human rights is somewhat clearer, however. a recognized benefit of democracy is its association with better human rights performance (bueno de mesquita et al. 2005; davenport 2007; poe and tate 1994). by positively contributing to democratization, democracy aid generally tends to contribute to the maintenance of or improvement in the recipient regime’s positive human rights practices (e.g., scott 2012). this is especially true when considering that us democracy aid is most often directed to regimes that are most likely to democratize and, indeed, display initial movement or openings toward democracy that attract the aid in the first place (e.g., nielsen and nielson 2010; peterson and scott 2018; reinsberg 2015; scott and carter 2019; scott et al. 2020). targeted us democracy aid is allocated to promote and support democratization, which includes and involves improved human rights records by the recipient regime. some studies indicate a similar, positive effect from democracy aid on human rights as well (e.g., scott 2012). given the positive link between democracy and human rights performance, what happens when democracy aid is abruptly reduced? 3. democracy aid shocks and human rights we extend existing scholarship on general foreign aid shocks, which focuses on consequences for civil war, to democracy assistance and its consequences for human rights. we argue that abrupt and substantial reductions of democracy assistance – democracy aid shocks – are likely to prompt repression and deteriorating human rights practices in recipient regimes. several strands of previous work contribute to this argument, beginning with the underlying foundations for when donors provide – and reduce – democracy aid. allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 149 we ground our argument in the general foundations of the determinants of democracy aid allocations, which helps to explain the imposition of democracy aid shocks in the first place. as previously indicated, numerous studies of foreign and democracy assistance have concluded that aid allocations rest on calculations of donor interests, recipient needs, humanitarian and ideational purposes, feasibility, and other concerns. these determinants also provide foundations for understanding decisions to suspend, reduce, or eliminate aid as well. in the context of our study, four reasons for democracy aid shocks are particularly important and set the foundations of our argument about the effects of these decisions. first, a “graduation” effect structures democracy aid allocation decisions. in general foreign aid, donors may reduce or end assistance when a recipient achieves the purpose of the aid (e.g., south korea no longer receives development assistance). with respect to democracy aid, recipient countries consolidating successful democracies generally find democracy aid dramatically reduced or eliminated as “unnecessary,” potentially replaced by other forms of support and assistance. for example, scott et al. (2019; 2020) find that us democracy assistance is dramatically reduced as recipients progress to consolidated democracies. we would not expect such “shocks” to result in worsening human rights in response, so this “graduation” condition helps to set a boundary condition for the effect of democracy aid shocks on recipient human rights performance. second, the aid conditionality literature indicates that democracy aid shocks may result from donor efforts to punish or incentive recipients (e.g., crawford 1997; montinola 2010; temple 2010). as scholars of foreign aid have argued, the effectiveness of foreign aid is partly based on how incentivized recipient regimes are to meet the conditions outlined by the donor state (girod and tobin 2016). the literature describes two types of aid conditionality – establishing particular policy requirements in return for access to foreign aid, or adjusting the flow of aid (e.g., granting, withholding, delaying, etc.) based on preferred conditions recipient states must meet. donor states may require regimes to follow certain guidelines or meet outlined standards (girod 2018), or they may demand that recipient regimes change the structures of their government, economy, and/or policies in order to create sufficient institutional capability to achieve donor goals for the aid, which is known as structural adjustment agreements. when recipient states do not comply with conditions, the donor state is then forced with the decision to cut off aid. in terms of democracy aid then, aid shocks may be spurred by donor attempts to withhold assistance in order to incentivize better progress toward democratization and improvement in human rights, or to punish the declines in either or both. in general, most studies conclude that conditionality does not typically work (crawford 1997; girod 2018; montinola 2010; temple 2010). prior to the collapse of the soviet union, donor states may have outlined aid conditions, but they were frequently ignored (bermeo 2016; dunning 2004). moreover, donor states often lack incentive to withdraw aid as the donor focuses on broader geopolitical goals such as alliances, rivalries, economic relationships, and others (e.g., bearce and tirone 2010; morgenthau 1962; nielsen 2013). this highlights an important point of aid literature: threats to withdraw aid are generally only carried out when the donor state has little or no strategic reason to costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 150 provide the aid in the first place (bearce and tirone 2010; bermeo 2016; dunning 2004). in effect, withdrawal of aid is rarely about conditions met; rather, it is about whether or not strategic interests warrant providing/continuing the aid. other research indicates that recipient states are also more likely to comply with prearranged aid conditions when recipients are more democratic (montinola 2010) and when institutional capability is at a higher level, or, in other words, when the recipient state has the capacity to do what is asked of it (noorbakhsh and paloni 2007).3 in the arena of human rights and democracy, for example, granting, withholding, delaying, or reducing general foreign aid is not often related to human rights improvements and, at times, just the opposite (e.g., burnside and dollar 2000; alesina and dollar 2000; nielsen 2013; schraeder, hook and taylor 1998). according to dasandi and erez (2017), broad foreign aid may contribute to economic development, but often may result in human rights violations by the recipient regime as well. similarly, regan (1995) found no effect for assistance on recipient human rights records across the carter and reagan administrations. the disconnect between aid conditionality and human rights improvements establishes that donors can produce unexpected, even contrary, consequences with foreign aid decisions. offers of assistance may or may not prompt desired behavior, while suspension or reduction of aid rarely produces changed behavior, especially, it seems, when it comes to human rights performance. accordingly, we draw on this general finding to build our expectation that democracy aid shocks are likely to result in counter-productive outcomes when it comes to human rights. third, democracy aid donors are driven in part by priorities of interest and opportunity to shift funds from some recipients to others as well. for example, according one recent analysis of the shifting targets of us democracy aid, “latin america and eastern europe received greater priority in the early post-cold war years, while the middle east and south asia (i.e., iraq and afghanistan) received greater attention in the post-9/11 years” (scott and carter 2016, 309). similarly, within regions, interests and opportunities also drive shifts in targets for aid. in latin america, us democracy aid targeted el salvador and panama before 1990, and haiti, colombia, and mexico after the end of the cold war (scott and carter 2016). in the middle east, egypt and jordan 3 the literature on economic sanctions also provides an important related insight to the aid conditionality foundation. senders of sanctions – those countries who sever trade, finance, or aid relations with others in pursuit of policy goals – struggle to achieve their goals and often find that they contribute to the opposite of their intended result (e.g., cortright and lopez 1995; 2000; 2002; hufbauer, schott, elliott and oegg 2007; hultman and peksen 2017). in the area of human rights, some studies suggest that senders of sanctions may even contribute to more harmful human rights behavior by the target regime (e.g., peksen 2009). the struggle to promote human rights via these sanctions and the unintended consequences that may result from actions to do so further suggest that donor decisions – such as democracy aid shocks – may well result in unintended outcomes that harm important donor objectives (see also dasandi and erez 2017). ultimately, this suggests that sudden reductions in aid that are intended to change regime behavior may actually cause a worsening in human rights. allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 151 dominated us democracy aid prior to 2001, while (not surprisingly) iraq was the central target after that (scott and carter 2015). hence, donor attention and interests may lead to re-prioritization of aid allocations, but such reprogramming may well trigger unintended negative consequences in previous recipients as aid resources abruptly decline. finally, previous studies also suggest that calculations focusing on lack of feasibility and danger also contribute to decisions to avoid, suspend, reduce, or eliminate aid as well. previous foreign aid studies indicate that poor or deteriorating human rights conditions within the recipient state may reduce assistance (e.g., cingranelli and pasquerello 1985; poe 1992). moreover, dramatic changes in regime conditions suggest instability and danger to the donor state, which combine to reduce aid (e.g., peterson and scott 2018; scott et al. 2020). conversely, in democracy aid allocations, research indicates that donors target aid to countries showing some progress toward democracy, as well as relative stability, because those recipients demonstrate feasibility for continued improvement, to which aid might contribute (e.g., nielson and nielsen 2010; scott and carter 2019; scott et al. 2020). this literature suggests that changes in regime characteristics and human rights performance are linked to democracy aid allocation decisions as well. building from these foundations, we draw on and extend a cluster of recent studies of conflict and foreign aid shocks to develop and apply our argument to democracy aid, an as-yet unexamined phenomenon. previous studies of general foreign aid shocks – or “deviations from expected aid flows” (gutting and steinward 2015) – establish the foundations of our argument. this literature demonstrates that foreign aid shocks generally result in increased conflict on both a large and small scale in recipient states (e.g., nielson et al. 2011; savun and tirone 2012). we draw on this argument, refocus it, and apply it to democracy aid. we thus argue that, when recipient regimes experience democracy aid shocks, they are more likely to engage in subsequent repressive behavior towards civil society groups and their citizens. as nielsen et al. (2011, 221) argue, foreign aid shocks affect the strategic calculations of both rebel groups and the recipient governments: “rapid changes in aid flows—aid shocks—can grow large enough to materially affect the balance of power between a government—the sovereign recipient of aid flows—and potential rebels.” the sudden withdrawal of aid threatens the established status quo. the government may no longer be able to maintain its payoffs to rebels, and the aid shocks may force the regime to “provide fewer services or side-payments” and “spend less of the diverted aid on the military” (nielson et al. 2011, 222). the logic continues that due to the weak position of the government, rebel groups are incentivized to demand more in order to keep peace. this may lead to a new bargaining range favoring potential rebels but is subject to a significant commitment problem. as nielson et al. (2011, 222) put it because deep aid cuts may shift the balance of power radically, rebels are likely to demand more resources than the government can provide in the short term. thus, a promise of increased side-payments from the government to rebels often requires pledges drawing on future resources. but promises of future transfers are contingent on the newly realized balance of power, costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 152 which favors the rebels. if aid flows resume, the government’s newfound strength will likely embolden it to renege on its commitment, making its current promises of future transfers noncredible (powell 2006, 236). because the expected rebel payoff from conflict is probably greater than any offer the government can credibly announce, we argue that aid shocks heighten the probability of armed conflict. therefore, any settlement the government reaches is not credible, and the rebel group is likely to gain a greater payoff by choosing conflict. we refocus and apply this argument to democracy aid shocks and human rights behavior. in a democracy aid shock, the sudden reduction of democracy assistance affects the bargaining balance between a regime and those seeking democratization. in effect, the logic/incentives of general foreign aid shocks are effectively reversed: democratizers in the public – especially civil society organizations and opposition parties – are placed in a weaker, more vulnerable position because of the sudden and substantial reduction of support. the regime is then incentivized to demand more or, more specifically, to engage in more repressive behavior, in order to achieve its goal (the preservation of its power and control). while democracy aid does not provide resources to democratizers to offer side-payments to the government in return for more openness or democracy (unlike the resources provided by foreign aid to regimes to potential rebel groups in the foreign aid shock literature), its contribution to the capacity of democratizers and its signal of support from external democracy sponsors shape regime calculations nonetheless. this logic, we argue, is especially the case with severe and sudden reductions of democracy aid to civil society actors. civil society democracy aid is particularly important, as that type of democracy assistance expressly empowers societal groups (e.g., dietrich 2013; dietrich and wright 2015; scott and carter 2019). such groups advocate for changes (democratization, support for human rights and participation) in the regime and political system. as dietrich (2013) concludes, concerns over the quality and intentions of governance often lead donors such as the us to bypass the recipient state government and provide aid to and through non-state actors, including civil society groups. moreover, as dietrich and wright (2015) argue, civil society aid strengthens societal and opposition groups and contributes to democratization, albeit somewhat indirectly. other evidence suggests meaningful benefits for such groups when it comes to their capacity to mobilize the public and affect change (e.g., finkel 2003; gazibo 2013; gyimah-boadi et al. 2000; gyimah-boadi and oquah 2000; gyima-boadi and yakah 2013; hearn 2000; robinson and friedman 2007). indeed, as savun and tirone (2011) conclude, democracy assistance improves the capacity for civil society to monitor state actions and can act as a brake on violent intentions and actions of the state (see also braithwaite and licht 2020). it is in part for this reason that governments compete with civil society organizations over foreign aid funds in general and often try to limit how much aid reaches civil society groups (e.g., dupuy et al. 2016). dupuy et al. (2016) demonstrate that civil society organizations and governments are often forced to compete over aid awards, with governments going so far as to attempt to limit the amount of aid reaching these allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 153 organizations. moreover, the reach that civil society organizations possess has led many governments to increase restrictions on them (dupuy et al. 2016). this makes aid targeted towards civil society organizations all the more important given the demonstrated efforts of many regimes to limit the check that well-funded civil society organizations place on them. while democracy aid remains relatively small when compared to other types of aid, the aid is sizeable enough to cause ramifications and change how governments behave. when a democracy aid shock involving a sudden reduction of support to civil society organizations occurs, those actors, and their capacity to demand democratization, are weakened vis-à-vis the regime. civil society democracy aid shocks create vulnerabilities for the civil society groups. they weaken societal actors challenging the regime, diminishing their capacity to mobilize the public, monitor state actions, and influence the practices of the regime. such shocks also send dangerous signals to the regime. the cue from the democracy aid donor(s) provided by the shock reduces regime incentives to liberalize and contribute to opportunities and incentives to try to preserve or consolidate its hold on power. regimes are thus less likely to maintain progress toward democracy and more likely to undertake efforts to crack down on civil society groups in order to sustain or gain power. these calculations thus reduce regime caution and lead to an increase in repression and violence in order to achieve the goal of preserving power and, perhaps, reversing liberalization/democratization. as a consequence, civil society aid shocks are especially likely to prompt repressive behavior by the regime in order to improve its control and slow or reverse democratization. as an example, the case of guatemala is instructive. following previous incidents of democracy aid shocks, the us dramatically reduced civil society democracy aid to guatemala in 2006. incidents of repression and violence subsequently increased, with civil society organizations less able to mobilize, speak out against the government, and draw on support from the u.s. as a sponsor. even when president colom took office two years later, the weakening effects of the civil society democracy aid shock continued to contribute to civil society and contribute to incidents of repression and violence. while civil society organizations are obviously not the only factor relevant to human rights performance, their capacity is important to shaping regime performance. however, when civil society experiences a democracy aid shock, their capacity diminishes, and the regime is less constrained in its behavior. hence, we argue that democracy aid shocks lead to increased political violence in the form of state repression. we therefore expect to see an increase in human rights repression by the recipient regime toward its citizens following democratic aid shocks. this leads to our central hypothesis: hypothesis: recipient states facing civil society aid shocks are likely to engage in repressive behavior towards citizens. 4. data and methods we examine country-year us democracy aid from usaid to the developing world from 1981-2013 (see djankov et al. 2009 on donor selection). this time-series-cross costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 154 sectional (tscs) data enables both comparisons between countries experiencing shocks and those who do not (cross-sectional), and within-country comparison of the impact of shocks on a country’s human rights performance both preand post-shock (time series). we filter consolidated democracies from the data to avoid including “shocks” caused by the reduction or elimination of democracy aid to countries that have “graduated” from the need for such assistance.4 our dependent variable is human rights, which we measure in two ways for robustness. first, we use the political terror scale (gibney et al. 2013), a 1-5 ranking of human rights performance focusing on imprisonment, torture, and extrajudicial killing in which 5 represents the worst conditions. for ease of interpretation (consistency with the physical integrity index), we invert this scale for our models, so that higher scores represent better human rights performance. second, we also measure a country’s human rights performance with the physical integrity index from cingranelli et al. (2014). this index is constructed from variables on torture, extrajudicial killing, political imprisonment, and disappearances, and ranges from 0-8, with higher scores indicating better human rights performance. as noted, the tscs structure of our data allows us to examine the effects of democracy aid shocks across countries, as well as their impact on human rights right performance within a country (i.e., preand post-shock human rights performance). for our central explanatory variable – civil society democracy aid shock – we rely on the aiddata 3.1 dataset (tierney et al. 2011), which includes commitments of oecd member development assistance by individual project and project purpose. we select us aid and aggregate it to the annual, country-level commitments by purpose, differentiating between democracy assistance and other development aid with aiddata 3.1 project codes. we identify purpose codes 15000-15199 – ‘governance and civil society’ aid – as democracy assistance, and all others as general foreign aid. we use the aiddata project codes to differentiate between aid packages for civil society organizations and other democracy aid (mostly targeted to executive, legislative and judicial institutions, government and program administration, and economic institutions). civil society democracy aid constitutes about 30-40% of us democracy assistance annually during the period of our study, and takes a great many forms ranging from training program to capacity building, program support, support for infrastructure, and organizational support, all designed to empower and expand the activities and influence of the civil society organizations (e.g., see, collins 2009; dietrich 2013; dietrich and wright 2015; finkel et al. 2007; hearn 2000; kalyvitis and vlachaki 2010. from this, we strictly follow and apply nielsen et al. (2011, 224) to construct the civil society democracy aid shock measure: 4 we eliminate countries scoring higher than 7 on the polity2 composite score (-10 to 10, with 10 most democratic). we have complete data on our key variables for this time period. we focus on democracy aid to the developing world and also exclude developed countries in asia, western europe and north america; the former soviet union and eastern european countries; and countries that do not appear in the polity dataset. allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 155 to measure aid shocks, we begin by calculating the change in aid (standardized by gdp) for each country-year (aid/gdpt— aid/gdpt−1).12 we average changes over the previous two years to account for the time gap between aid commitments and the time at which countries actually receive (or fail to receive) the aid…. using commitment data, we then define the bottom 15% of these aid changes to be aid shocks—negative changes that are large enough that we expect them to have a potentially destabilizing effect on recipients. we measure these civil society democracy aid shocks dichotomously and, in our simultaneous equation models, in constant 2009 dollars for one of the reciprocal processes.5 controls. we include a series of control measures, which reflect the findings of previous studies of the determinants of the human rights repression, and the allocation of foreign and democracy assistance and stem from our discussion in the preceding section. diagnostics indicate collinearity among these variables is not a concern. in our gls models we include five control measures. first, we control for regime type, to account for the relationship between human rights performance and the level of democracy/autocracy of a regime. we use the polity iv measure of democracyautocracy (marshall and jaggers 2012), while acknowledging its limitations (e.g. munck and verkuilen 2002).6 second, we include a control for general aid commitments to account for the potential impact of general foreign aid on human rights performance, subtracting democracy aid from total aid to obtain a measure of ‘other aid’, and including its logarithm in constant 2009 dollars (see peterson and scott 2018; scott and carter 2019; scott, rowling and jones 2020).7 third, we control for trade integration with a measure of the volume of us trade (sum of exports from and imports to the us) to account for the potential impact of economic integration with a potential recipient in current dollars (barbieri and keshk 2012). fourth, we control for recipient economic conditions with 5 we also tested simultaneous equation models using the logged value of civil society democracy aid (to reduce the impact of outliers) and gdp-weighted civil society democracy aid for the aid process in the equation. the results were fully consistent with our models using constant 2009 dollars. we do not report the alternative results here, but they are available from the authors. 6 in polity iv, the 21-point polity2 variable is a composite score ranging from -10 (least democratic) to 10 (most democratic), with interregnum and transition scores (-77, -88) replaced with scores of 0 and interpolated scores respectively to reduce missing data, and interruption (-66) scores designated as missing values. guided by plumper and neumayer (2010), we adjust the polity2 variable for better face validity, retaining the polity2 interpolation for transition scores (-88), but recoding interregnum scores (-77) with the minimum value preceding/following the interregnum to avoid artificial improvements or deteriorations of the polity2 score from using the 0 value during the interregnum. per plumper and neumayer (2010), we also recode interruptions (-66) by replacing the missing variable with freedom house scores adjusted to the polity2 scale, rounding to lower values. our revised polity2 score serves as the basis for our measure of regime conditions. we then reset the corrected scores to range from 0-20, where 0 is the most autocratic conditions and 20 the most democratic conditions. 7 for this value, we calculate log (aid value +1), which produces a range from 0-22.9 for the logged other aid variable. costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 156 per capita gross domestic product in current dollars for each country-year (data from the penn world tables) to account for the potential relationship between wealth/poverty and human rights. finally, we control for the effects of violent civil conflict to account for the potential impact of armed conflict within the recipient state on human rights, using the major episodes of political violence data from the center for systemic peace (marshall 2016).8 for each country-year, from this data we identify countries involved in civil or intrastate conflict, coding dichotomously. we begin with descriptive and bivariate data on to provide the context and summary information on democracy aid shocks and their occurrence, and the simple correlations between these shocks and human rights conditions. then, we test our argument with two different techniques, which enable us to account for shocks driven by changing priorities (gls models) and shocks driven by aid conditionality calculations (simultaneous equation models). together, they increase our confidence in results of our findings on the impact of democracy aid shocks on human rights performance.9 we first use generalized least squares models with random effects, appropriate to the time-series cross-sectional data of our study (e.g., beck 2009). for our analysis, random effects estimators have the advantage of taking into account both the uniqueness of each country and the effect of time, while fixed effects models exploit within-group variation over time. however, although we believe that random effects are appropriate for our analysis, we also test our gls models with fixed effects where across-country variation is not used to estimate the models. we also test gls models with a lagged dependent variable (ldv) to account for the autoregressive process in the dependent variable (human rights conditions). second, in order to account for the reciprocal process by which changes in human rights performance could affect democracy aid decisions in the first place (as our discussion of aid decisions, conditionality, and feasibility suggested), which then have an effect on human rights performance, we test a simultaneous equation model to examine the links between civil society aid shocks and human rights performance as simultaneous processes. use of this technique enables us to gauge the impact of the civil society aid shocks on human rights while measuring and controlling for the effects of nascent human rights repression on the allocation of civil society democracy aid. we model the aid shock-human rights and human rights-aid shock links as integrated processes with two endogenous equations (e.g., reuveny and li 2003; keshk, 8 according to marshall (2016) " ‘major episodes of political violence’ " involve at least 500 ‘directlyrelated’ fatalities and reach a level of intensity in which political violence is both systematic and sustained (a base rate of 100 ‘directly-related deaths per annum’). episodes may be of any general type: inter-state, intra-state, or communal; they include all episodes of international, civil, ethnic, communal, and genocidal violence and warfare. 9 because our dependent variables are scales, we also tested our models with the ordered logit technique. the results were fully consistent with the gls models and support our argument. we do not report these tests here, but the results are available from the authors. allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 157 pollins, and reuveny 2004; see also scott and steele 2011). one equation models the allocation of civil society democracy aid as a function of the human rights performance of the target regime and other factors, and the second equation represents the impact of civil society democracy aid shocks on the human rights performance of the target regime. in the first process/equation, we model civil society democracy allocations as a function of the recipient state’s human rights performance, recipient regime type, recipient wealth (gdp per capita), us political interests, us alliances, trade with the us, and other aid from the us on the allocation of us civil society democracy aid. to measure us political interests, we rely on strezhnev and voeten’s (2013) political affinity scores (s-score), which are based on un general assembly voting data. in these scores, political affinity is measured by an index ranging from -1 to 1, with higher scores indicate similar voting – and thus affinity – between a potential recipient and the us. for us alliances, we simply code a dichotomous measure for the presence of an alliance between a potential recipient and the us for each country year using correlates of war alliance data (gibler 2009). our measures for the other variables are the same as described in the gls models. in the second process, we control for the effects of civil society democracy aid shocks, recipient regime type, recipient wealth (gdp per capita), conflict (political violence/civil war in the target state), trade with the us, and other aid on the human rights performance of the target recipient. our measures for this are as previously discussed. we accomplish the identification of the simultaneous equation mode through the exclusion condition (greene 1997), as each equation contains at least one variable not found in the other equation. for the civil society democracy aid allocation equation, these variables are us interests and us alliances, and for the human rights equation, this variable is conflict. of course, the first process includes human rights as an explanatory variable, and the second process includes civil society democracy aid shocks as an explanatory variable. in both the gls and sem techniques, we test models for both measures of the dependent variable (pts and physical integrity index). in all models, we lag independent variables by one year to ensure time order, and in the sem models, we lag the second process a year behind the first process to ensure that we are gauging how human rights affects civil society democracy aid allocations at time t and how civil society aid allocations affect human rights at time t+1. we derive our results with stata, version 14. 5. results for context, figure 1 shows us democracy aid allocations from 1975-2013. as shown, about the time of the end of the cold war, us democracy aid surged from low levels in the 1970s and 1980s, especially after 1999, when new commitments during the global war on terror led to expanded assistance (see also scott and carter 2019). in practical terms, us democracy aid reached substantively significant amounts after 1982, when our analysis begins, so the limit to the start date necessitated by other data restrictions is not problematic. costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 158 our key explanatory variable is civil society democracy aid shock. table 1 presents basic descriptive information about the nature of democracy aid and these aid shocks. for the period of our study, average annual gdp-weighted civil society democracy aid amounted to thirteen cents. applying the nielsen et al. (2011, 224) formula for measuring aid shock, our civil society democracy aid shock variable shows an average reduction of eleven cents for civil society democracy aid, which is an 85% decrease to average civil society democracy aid. this dramatic reduction clearly warrants the “shock” label. these shocks are broadly distributed across regime type, as figure 2 shows, with somewhat greater frequency in the -6 to -7 and 5 to 6 levels of the polity score, but they are, not surprisingly, more frequent as the years pass and the amount and recipients of us democracy aid increase. with this context in mind, table 2 shows bivariate correlations between civil society aid shocks and regime human rights performance, measured by the cingranelli et al. (2014) physical integrity index, where higher values indicate better human rights performance, and the gibney et al. (2013) political terror scale (inverted as noted). as the data in table 2 show, there is a modest, but meaningful correlation in the expected direction: civil society democracy aid shocks are related to lower human rights performance the following year. these results provide good initial support for our hypothesis. simple bivariate correlations also suggest that we need not be concerned with aid substitution effects in which democracy aid shocks are paired with increases to other forms of aid, that shocks to civil society democracy aid are paired with increases to democracy aid to institutions, or vice versa. indeed, other us aid and democracy aid overall and civil society democracy figure 1: us democracy aid, 1975-2013 table 1: democracy aid and aid shocks democracy aid variable gdp-weighted aid avg gdp-weighted shock avg civil society democracy aid .13 -.11 allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 159 aid more narrowly, as well as civil society democracy aid and institutional democracy aid correlate positively. however, they also correlate only modestly in both instances, indicating that the flows of general foreign aid and democracy aid move separately. table 3 presents the tests of our argument using gls random effects models. as the results in this table show, our data provides strong support for our theorized effect: civil society democracy aid shocks are associated with worse subsequent human rights performance. for our control variables, civil war, poverty, and trade consistently show a negative relationship with human rights performance. regime type and other us aid are less consistent, reaching statistical significance in one (regime type) or two (other aid) of the models. after controlling for these factors, our results show substantial support for the general democracy aid shock – human rights relationship. in three of the four models – including both with lagged dependent variables – civil society democracy aid shocks are associated with declines in both measures of human rights performance (pts and physint). the results indicate that a democracy aid shock leads to about 2.5% 2.8% decline in human rights performance the year following the aid shock. overall, this demonstrates varying support that states facing the onset of democracy aid shocks are likely to engage in more repressive behavior against their citizens. figures 3-4 graphically portray the point estimates of these results. figure 3 includes the results of the political terror scale models, and figure 4 includes those of the physical integrity rights models. in both, the statistically significant, negative effects of civil society aid shocks stand out. figure 2: frequency of democracy aid shocks by regime type (polity score) and year table 2: correlations between aid shocks and human rights aid shock physical integrity index political terror scale civil society aid shock -.13 -.15 costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 160 table 3: civil society democracy aid shocks and human rights performance, 1982-2013 random effects models ivs political terror scale models physical integrity index models gls gls + ldv gls gls + ldv constant ldv civil society aid shock regime type civil war gdp per capita trade other aid 3.4 (.08)*** --.05 (.04) -.02 (.006)*** -.55 (.06)*** .00001 (.000004)*** -.000003 (.000001)*** -.002 (.003) 1.1 (.07)*** .68 (.02)***--.12 (.04)*** -.0004 (.003) -.39 (.04)*** .000008 (.000002)*** .000001 (.0000005)* .001(.002) 4.36 (.18)*** --.22 (.08)*** -.0003 (.01) .-1.05 (.12)*** .00003 (.000009)*** -.000007 (.000002)*** .-.01 (.007)* 1.74 (.13 )*** .63 (.02)***--.23 (.08)*** .004 (.006) -.70 (.08)*** .00001 (.000004)*** -.000004 (.000001)*** -.01 (.005)** n=2055 wald chi2=132.14 r2 overall = .36 r2 between= .54 n=2029 wald chi2=4090.46 r2 overall = .67 r2 between= .96 n=1938 wald chi2=110.32 r2 overall = .33 r2 between= .52 n=1857 wald chi2=2437.73 overall = .63 r2 between= .93 figure 3: point estimates of civil society aid shocks and controls on political terror scale, with 95% confidence intervals. table 4 presents the results of the gls models using fixed effects, which controls for the unique characteristics of each individual country in our sample and emphasizes within-country variation over time. that is, table 4 results show the relationships between civil society democracy aid shocks and human rights performance focusing on preand post-shock human rights performance within each country. as the results in the table indicate, these models show further support for the general democracy aid shock – human rights relationship. in all four fixed effects models – including both with lagged dependent variables – even with across-country variation omitted, civil society democracy aid shocks are associated with declines in allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 161 figure 4: point estimates of civil society aid shocks and controls on physical integrity index, with 95% confidence intervals. both measures of human rights performance after the shock (political terror scale and physical integrity index) after the shock. the size of the impact is comparable to those seen in the random effects models. overall, this further supports our argument that states experiencing democracy aid shocks are likely to engage in more repressive behavior against their citizens. table 4: civil society democracy aid shocks and human rights performance, 1982-2013 fixed effects models political terror scale models physical integrity index models gls gls + ldv gls gls ldv constant 3.047*** (.032) 1.64*** (.083) 3.913*** (.079) 2.356*** (.151) ldv .521*** (.019) .473*** (.021) civil society aid shock -.03 (.043) -.10** (.042) -.20** (.084) -.25*** (.084) regime type .012* (.006) -.009** (.004) .045*** (.012) .001 (.008) civil war -.343*** (.061) -.373*** (.044) -.596*** (.131) -.583*** (.095) gdp per capita 0 (0) 0 (0) 0 (0) 0 (0) trade 0* (0) 0** (0) 0* (0) 0** (0) other aid .007** (.003) 0 (.003) -.005 (.007) -.009 (.006) observations 1952 2029 1836 1857 costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 162 as a final check, we tested models using the effects of general democracy aid shocks and institutional democracy aid shocks (the first using aggregate democracy assistance, the second using democracy assistance to executive, legislative and judicial institutions, government and program administration, and economic institutions, or noncivil society democracy aid). our appendix contains the core results of these tests, which show that, unlike civil society democracy aid shocks, these other types of shocks do not affect human rights performance in a statistically significant manner. this further increases our confidence in our argument and our emphasis on civil society democracy aid shocks as the likely trigger for increased repression by a regime. 10 hence, the results of the gls models provide strong support for our argument. consistent with the logic of our theory, sudden reductions of civil society democracy aid are associated with negative effects on human rights. the combination of our gls models indicates that: a) states experiencing civil society democracy aid shocks engage in greater repression after the shock than before it; b) states experiencing civil society democracy aid shocks engage in greater repression after the shock than countries that do not experience such shocks. in short, repression by the state increases when democracy aid is slashed. the signals and weakening effects of such shocks appear to embolden regimes to engage in greater repression. however, as our argument noted, civil society aid shocks themselves may occur in part in response to deteriorating human rights performance in an aid recipient. hence, we must address this potential reciprocal relationship, and we do so through the use of simultaneous equation models, as we previously discussed. these models enable us to account for the reciprocal process by which changes in human rights performance could prompt civil society democracy aid shocks in the first place, and to better gauge the subsequent effects of those shocks on human rights performance in that context. table 5 presents the results of the simultaneous equation models testing our argument. the upper half of the table presents the results of the aid process – the effects of human rights on civil society aid allocations. as these results indicate, after controlling for other factors including us political and strategic interests, level of development, and economic relationships between the us and a potential recipient, lower human rights scores are associated with declining civil society democracy aid amounts and the relationship is statistically significant. in practical terms, each point decrease in the human rights indices is associated with $800,000 (physint) $12 million (pts) less in civil society democracy aid (constant 2009 $). we focus on the bottom half of the table for the most important assessment of our argument. in the human rights process – the effects of civil society aid shocks on human rights performance – our results strongly support our argument. even after controlling for the effects of human rights on civil society democracy aid allocations, subsequent civil 10 note that we replicated all our gls models using these other measures but include only one set of them in the appendix for efficiency. all the other results are available from the authors on request. allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 163 table 5: simultaneous equation models of civil society democracy aid, shocks, and human rights performance, 1982-2013. ivs political terror scale physical integrity index aid process constant political terror scale regime type us political interests us ally gdp per capita trade other aid 1839653 (1609995) -12228980*** (344706) 36504 (69791) -2643767* (1603616) -25374.47 (1049509) 42.61 (43.64) 14.24 (14.62) 201873* (48805) -2579748 (2120405) -814406*** (239942) -4035 (95011) -7562582*** (2706775) 768945 (1500992) 67.8 (63.1) 2.0 (16.7) 3617773*** (78631) n=1844 rmse=1.36e+07 r2=.03 p=.000 n=1781 rmse=1.93e+07 r2=.32 p=.000 human rights process constant civil society aid shock regime type civil war gdp per capita trade other aid 3.6*** (.06) -.37*** (.06) -.01** (.004) -1.2*** (.004) .00002*** (.000002) -.000003 *** (.0000008) -.01*** (.003) 4.72*** (.12) -.56*** (.11) .008 (.008) -2.09*** (.09) .00004*** (.000005) -.00001*** (.000001) -.025***. (.007) n=1844 rmse=.8 r2=.38 p=.000 n=1781 rmse=1.68 r2=.32 p=.000 society democracy aid shocks appear to produce significant and substantive reductions of human rights performance by the regime. like the gls models, this relationship is robust across both measures of human rights. in practical terms, the relevant coefficients indicate that a civil society democracy aid shock is associated with a 7 7.5% deterioration in a regime’s human rights performance in the year after the shock. these results are even stronger than those using the gls techniques and improve our confidence in the theorized relationship, especially considering that they hold even when factoring in potential reciprocal effects of human rights changes on aid allocations themselves. put simply, it does not appear to be the case that the relationship between civil society democracy shocks and human rights performance is an artifact of deteriorating human rights conditions affecting aid allocations: instead, as we theorized, repression by the state increases when democracy aid is slashed. the weakening of civil society actors and their support and the signals such shocks provide to the appear to embolden regimes to engage in greater repression. costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 164 6. conclusion the literature on democracy aid has focused on why it is allocated to some recipients and not others, and how such aid affects democratization. far less attention has been devoted to the question of what occurs when democracy aid is suddenly halted. our examination of these democracy aid shocks finds further evidence supporting the efficacy of democracy assistance and highlights the harmful effects of its abrupt reduction. overall, our evidence indicates that human rights generally worsen when us civil society democracy aid is suddenly reduced. importantly, as other studies have concluded (e.g., dietrich and wright 2015; ottaway and carothers 2000), the us funds civil society organizations to empower them to advocate for, participate in, and achieve democratization, and democracy assistance appears to be a positive contributor to democratization (e.g., askarov and doucouliagos 2013; dietrich and wright 2015; finkel et al. 2007; heinrich and loftis 2017; kalyvitis and vlachaki 2010; scott and steele 2011). our analysis indicates that when us democracy aid to civil society groups is cut, the ruling regime may be incentivized to engage in repression, causing a worsening human rights situation because the regime sees it as an opportunity – even a signal – to quash pressure for and progress toward democratization. our findings have important policy implications. not only does democracy aid appear to contribute to progress toward democracy and improved human rights, performance as other studies have shown, its sudden reduction, particularly in cuts to civil society aid shocks, appears to contribute to significant reversals to human rights protections. the worsening situations appear to lead to increases in torture, extrajudicial killing, and political imprisonment, which are the principal forms of human rights repressions captured in the measures we use for our dependent variable. as such, democracy aid shocks affect regime behavior and human security. moreover, in policy terms, the apparent consequences of democracy aid shocks in the human rights behavior of recipients are likely to lead to subsequent difficult policy decisions for donors. among these are hard choices about whether and how to reestablish, resume, and rebuild democracy aid to reverse the deterioration of human rights in the recipient state in the face of the regime’s increased repression, and/or to engage in other, potentially even more costly responses to address the human rights situation. importantly, the unintended consequences of democracy aid shocks on human rights performance and the ensuing policy dilemmas should caution donor states when considering the sudden withdrawal of democracy assistance. our analysis also suggests several avenues for further research. first, our analysis focuses on us democracy assistance. incorporating non-us donors, both individually and in aggregate studies of oecd and other multilateral democracy aid, for example, would further illuminate the relationship between democracy aid, aid shocks, and human rights performance, and would enable examination of the potential for aid substitution effects among other donors as well. other potential substitution effects also merit attention in subsequent studies, including those related to shifts between democracy aid and other types of assistance, and those among different subcategories of democracy assistance itself (e.g., civil society vs. institutional, as well as the more specific rule of law and human rights, good governance, political competition and electoral processes, and civil society and political participation subcategories). allegra e. hernandez; james m. scott the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 165 second, other areas of focus and techniques of analysis might shed additional light on the relationship our findings suggest. comparing sudden democracy aid reductions with gradual democracy aid declines might shed further light on the impact of reductions, while examining both positive and negative aid shocks and unpacking threats of reductions from actual reductions might reveal additional nuances in the relationship. moreover, our argument rests on the insights of studies of foreign and democracy assistance allocation stressing the effects of donor interests, recipient needs, humanitarian and ideational purposes, feasibility, and other determinants on decisions to provide, suspend, reduce, or eliminate aid. however, the range of calculations and processes that produce democracy aid shocks – both deliberate and less intentional warrants further attention to examine potential variance in the consequences of aid shocks stemming from this range of processes. further, additional efforts to examine the potential endogeneity of the relationship between human rights repression and democracy aid shocks would further test the nature and robustness of the relationship our study has identified. numerous techniques might be employed to do so, including the use of an instrumental variables approach. finally, judicious use of process-tracing case studies might help to examine and develop the causal sequences linking decisions to reduce democracy aid to subsequent human rights practices in recipient states. they would also enable further attention to the potentially interesting substitution effects outlined above. but, at a time in which the more-than-three-decade old commitment by the us to provide democracy aid to promote democratization in targeted recipients is under increasing threat, our analysis 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https://doi.org/10.1016/j.worlddev.2011.07.029 https://doi.org/10.1016/j.worlddev.2011.07.029 https://doi.org/10.14254/2071-8330.2018/11-3/2 costly signals? the age of human rights journal, 17 (december 2021) pp. 146-172 issn: 2340-9592 doi: 10.17561/tahrj.v17.6467 172 appendix general democracy aid shocks, institutional democracy aid shocks, and human rights performance, 1982-2013, gls with random effects physical integrity index physical integrity index political terror scale political terror scale general democracy aid shock -.042 (.08) -.003 (.038) institutional democracy aid shock -.064 (.078) -.039 (.038) regime type -.002 (.011) -.002 (.011) -.017*** (.006) -.017*** (.006) civil war -1.043*** (.118) -1.048*** (.118) -.55*** (.055) -.554*** (.055) gdp per capita 0*** (0) 0*** (0) 0*** (0) 0*** (0) trade 0*** (0) 0*** (0) 0*** (0) 0*** (0) other us aid -.013* (.007) -.013* (.007) -.002 (.003) -.002 (.003) constant 4.336*** (.169) 4.341*** (.168) 3.203*** (.072) 3.209*** (.072) observations 1938 1938 2055 2055 overall r2 within r2 between r2 .32 .08 .51 .32 .08 .51 .36 .14 .53 .36 .14 .54 standard errors are in parentheses *** p<.01, ** p<.05, * p<.1 costly signals? democracy aid shocks and political repression, 1981-2013 abstract 1. costly signals? democracy aid shocks and political repression, 1981-2013 2. democracy aid in context 3. democracy aid shocks and human rights 4. data and methods 5. results 6. conclusion references appendix parenthood, altruism, and the market: a critique of essentialist constructions of women’s nature in commercial surrogacy the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 276 parenthood, altruism, and the market: a critique of essentialist constructions of women’s nature in commercial surrogacy jesús mora*, 1 abstract: commercial surrogacy has become an increasingly popular path to parenthood around the world. yet, critics have raised concerns about the practice’s implications for gender inequality. this paper critically assesses commercial surrogacy’s reliance on, and reinforcement of, common narratives about women’s natural disposition to sacrifice themselves for others. these narratives have historically served to justify disadvantages for women as workers, both within and outside the household. their presence in commercial surrogacy agreements suggests that, even if we can characterise commercial surrogacy as an alternative (as opposed to traditional) method for family formation, the same social stereotypes that have historically entrenched women’s inequality in traditional families are still highly relevant for the practice’s functioning. keywords: commercial surrogacy; reproduction; family; commodification; altruism; gender equality. summary: 1. introduction. 2. commercial surrogacy: definition, actors, and current dimension. 3. making commercial surrogacy socially acceptable. 3.1. justifying kinship. 3.2. altruistic motivations. 4. unbalanced altruism: securing the interests of ips and agencies. 5. commercial surrogacy and gender inequalities. 6. commercial surrogacy, the social value of care work, and gender inequalities. 7. conclusion. 1. introduction commercial surrogacy has received a great deal of attention in recent ethical and philosophical discussions. the practice has become increasingly popular in the last two decades, giving rise to a booming industry and to some instances of ethnographic work analysing its implications from different perspectives, especially in those countries where commercial surrogacy is legal. one such country is india, which until recently was considered one of the main destinations for couples looking to enter into commercial surrogacy agreements. estimates suggest that the indian commercial surrogacy industry comprised as many as 200,000 assisted reproductive technology clinics with a revenue of around usd 2.3 billion in 2012 (jaiswal, 2012). the rapid expansion of commercial * carlos iii university of madrid, ph. d. in advanced studies in human rights, jesuspmora14@gmail.com. 1 ph. d. in advanced studies in human rights in the carlos iii university of madrid. final thesis advisor for the masters in human rights at unir. i would like to thank professor oscar pérez de la fuente for his useful advice and comments. this article is also the result of multiple corrections and reviews from anonymous referees that have helped enormously to improve its content. i would also like to thank will masters for his careful grammar review and copyediting, and all the professors that have enriched my knowledge about gender equality, especially paula casal and ana de miguel. mailto:jesuspmora14@gmail.com jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 277 surrogacy has prompted concerns about the risks involved for the health of surrogate mothers, whose lives can be put at risk, and the conditions in which they gestate and give birth (riben, 2015)2. claims about the indian commercial surrogacy industry’s involvement in the exploitation of women led to a parliamentary bill prohibiting paid surrogacy and establishing a restrictive “altruistic surrogacy” framework (the surrogacy (regulation) bill, 2019)3. in countries such as the united states, israel, and russia, authors have studied the status, concerns, and relationships of the different parties involved in commercial surrogacy agreements. in this paper, i intend to focus on the implications of commercial surrogacy for gender inequalities. i will achieve this by analysing narratives that are particularly prominent in commercial surrogacy within specific contexts. attaching monetary compensation to gestation might, at first glance, be beneficial for gender equality, as it appears to challenge old-fashioned assumptions about care work as a female, undervalued form of labour. yet, i will try to argue that the practice’s reliance on some traditional narratives about women’s nature might, in some contexts, have detrimental implications for gender equality. in many ways, commercial surrogacy’s functioning relies on narratives that encourage women’s participation as surrogates and help fulfil the interests of intended parents and agencies by appealing to oppressive assumptions about women’s (allegedly) self-sacrificing nature. commercial surrogacy involves different actors—surrogates, intended parents, agencies, lawyers, clinics’ staff, translators, psychologists, etc.—, all of whom rely on different, sometimes even contradictory, narratives (ragoné, 1996, p. 362; pande, 2010, p. 307). in section 2, i will refer to commercial surrogacy as a global phenomenon and detail some of its main actors’ functions in these agreements. in section 3, i will address the importance of moral frames in commercial surrogacy agreements by analysing some prominent narratives intended to make the practice socially acceptable (ragoné, 1996; pande, 2010; teman, 2010; rudrappa and collins, 2015; smietana, 2017). such narratives include the parties’ conceptions about kinship and the adequate bases to establish parenthood (see strathern 1992; ragoné, 1996; teman, 2003, 2010; thompson, 2005; berend, 2016; jacobson, 2016). these kinship narratives, often adapted by the parties based on their capacity to justify the intended parents’ relatedness to the foetus or child in their social environments, highlight the importance of cultural legitimacy for the parties’ own characterisation and justification of commercial surrogacy agreements. in addition to kinship narratives—and relying on the same views about the importance of moral frames—, i will address a second type of narrative, prominent in this type of contract, 2 some researchers also report that indian clinics have often taken advantage of illiterate surrogate mothers and have exercised different kinds of psychological pressure against them, including isolation from their families (fontanella-khan, 2010). 3 eligibility criteria for intended parents include indian nationality, proven infertility, lack of healthy offspring, being of a young age, and marriage continuity; surrogates are required to be a relative of the intended parents, to already have children of their own, to act as surrogates only once in their lifetime, and to meet certain age, medical, and psychological fitness requirements (the surrogacy (regulation) bill, 2019). parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 278 in relation to the parties’ motivations to enter into commercial surrogacy agreements. i will attempt to demonstrate the importance of gift relations and altruistic motivations in justifying both the intended parents’ and the surrogates’ decision to enter into commercial surrogacy contracts. these narratives of altruism, like the above strategies to establish kinship between the intended parents and the foetus or child, are fundamental to make commercial surrogacy agreements acceptable in the parties’ social environments. alongside social acceptability, narratives of altruism are important in commercial surrogacy agreements for another reason. as i will explain in section 4, in some contexts it is common for the parties to refer to altruism and self-sacrifice as natural inclinations for women in general, and for surrogates in particular. especially when convenient for the interests of intended parents and surrogacy agencies, altruistic motivations are depicted as a one-sided phenomenon, to the extent that surrogates are expected to be naturally inclined to sacrifice their interests just for the sake of helping others, without upholding any legitimate expectation to be reciprocated. these narratives about women’s natural disposition to constantly sacrifice themselves for others, common in some countries’ surrogacy industries, make commercial surrogacy reliant on a set of discursive strategies that have been used, historically, to justify women’s oppression and gender inequalities, especially in the distribution of care-related work between men and women. drawing on this second reason for the importance of narratives of altruism in commercial surrogacy, in section 5 i will argue that commercial surrogacy, as it exists nowadays in certain contexts, entrenches stereotypes about women’s nature that have traditionally worked as foundations for gender inequality. according to authors such as jacobson (2016), commercial surrogacy’s disadvantageous implications for women in general, and surrogates in particular, can be rooted in cultural anxieties about the commodification of reproduction. this argument appears to indicate that, if we are concerned with the surrogates’ position in these agreements, and with gender inequalities from a wider social perspective, we should normalise the presence of market transactions in the field of reproduction and the consideration of paid pregnancy as regular remunerated work. in section 6, i will address this proposal and argue, in response to jacobson, that the disadvantages currently suffered by surrogates, like other gender inequalities in reproductive work, arise from social assumptions about care work that are not entirely rooted in fears about the commodification of gestation. naturalising gestation as a regular form of remunerated work need not dispel current social assumptions that, i shall argue, are detrimental to women’s equality as workers both within and outside the household. furthermore, i will contend that some social fears regarding the commodification of reproduction can be legitimate. as a consequence, i will propose alternative routes to overcome oppressive cultural narratives about women’s nature and their position as workers that avoid those worrisome implications. 2. commercial surrogacy: definition, actors, and current dimension let us start by providing a definition of commercial surrogacy and some relevant pieces of knowledge about its current dimensions around the world. commercial surrogacy is a type of contract under which a woman agrees to become pregnant, and carry that jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 279 pregnancy to term, for another person or couple in exchange for money and, upon the birth of the child, relinquish her parental rights, so that the commissioning party may raise the child as their own (anderson, 1990, p. 71; bernardo and bernardo, 2007, p. 409). actors in commercial surrogacy agreements play different roles: the surrogate4 gestates the child and agrees to relinquish her rights when the baby is born; the intended parents (ips) pay a varying amount of money in exchange for exclusive parental rights over the child; brokers and agencies try to make sure that the agreement is carried to term (anderson, 1990, p. 74); finally, clinics, reproductive endocrinologists (res), and other medical staff perform all the assisted reproduction techniques necessary to create and sustain a successful pregnancy (see jacobson 2016, p. 24), in some contexts also acting as “gatekeepers”, controlling who can and cannot demand information about the surrogates’ situation (see weis 2019). commercial surrogacy agreements can take two different forms: traditional surrogacy and gestational surrogacy. in traditional surrogacy, the surrogate is impregnated with the intended father’s sperm or has the embryo implanted in her uterus after having her egg fertilised via in-vitro fertilisation. in traditional surrogacy, the surrogate provides the egg and gestates (dillaway, 2008, pp. 302–303). in gestational surrogacy, the surrogate only undertakes the labour of gestation, as the genetic material is provided entirely from external sources—either from the intended mother or another woman who has agreed with the ips or the agency to provide an egg for fertilisation (pp. 302-303). in these cases, the surrogate is implanted with a pre-embryo formed from donated gametes by means of invitro fertilisation (satz, 1992, p. 113). in the united states, where commercial surrogacy has attracted significant media and academic interest, surrogacy agreements alone had produced around 2,000 births by 1990 (nelkin, 1992, p. 45). authors like jacobson (2016, p. 11) acknowledge that it is still difficult to capture “accurate rates of surrogacy”, since no official data is currently available. nevertheless, jacobson’s own estimates suggest that since the late 1970s the number of children born as a result of commercial surrogacy agreements ranges from 10,000 to 31,000, and that today around 1,500 babies are born from paid surrogacy contracts every year (p. 11). the fees paid by ips vary from agreement to agreement but, according to jacobson (p. 32), non-medical expenses (including payments for agencies, lawyers, res, and the surrogate’s fee) range between $60,000 and $80,000, with an additional $20,000–$30,000 covering medical expenses. other estimates suggest that commercial surrogacy agreements in the u.s. can cost up to $150,000, and that “[c]ontingencies like invasive procedures, multiple pregnancy, or caesarean section push the cost further up” (birenbaum-carmeli and montebruno 2019, p. 2461). in recent years, commercial surrogacy has become a global industry and, since the early 2000s, poor countries like india have been among the preferred destinations for citizens of states where the practice 4 in some contexts, like india, it is common for ethnographic researchers to refer to the surrogate as the “surrogate mother” or the “birthing mother” (see pande, 2010; rudrappa and collins, 2015; rudrappa 2016). yet, as highlighted by an anonymous reviewer, that nomenclature does not fit the surrogates’ common descriptions of their experience in contexts like the united states, where they try to justify their decision to enter a surrogacy agreement by emphasising that they are not the mother of the child they carry (see jacobson, 2016, p. 68). parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 280 is either prohibited or too expensive, but who still want to become parents through these types of arrangements. economically, commercial surrogacy has proven to be a lucrative business, with the industry’s worth being estimated in $6.4 billion by 2012 (fenton-glynn, 2019). given its surging popularity in different countries, the practice’s social and political implications have attracted the attention of academics. in india, critics have referred to the role of race, class, and gender in the industry’s functioning (rudrappa and collins, 2015; limki, 2018), as well as to common cultural stereotypes that stigmatise indian surrogates (pande, 2010). the idea of stigmatisation, stemming from traditional conceptions about reproduction and the family, has also been analysed in u.s. ethnographies, especially in what concerns its impact on surrogates’ discourses about their decision to gestate someone else’s child (see jacobson, 2016). in israel, teman (2010) has addressed the impact of the country’s natalist policies and the national significance of motherhood—within the context of the israeli-palestinian conflict—on the growth of its local surrogacy industry. in russia, attention has been given to the power relations and the control exercised by agencies and clinics over surmamas (weis, 2019), and to the impact of soviet conceptions about childbearing as a job to be encouraged by economic support from the state (smietana, rudrappa and weis, 2021). 3. making commercial surrogacy socially acceptable many of the authors responsible for the ethnographies detailed above have referred to the cultural anxiety around the commodification of gestation (jacobson, 2016, pp. 71, 177; smietana, rudrappa and weis, 2021, p. 8) that surrogacy has generated. as a result of that anxiety, the parties involved in commercial surrogacy have based their decisions in different moral frames. relying on goffman’s (1974, p. 21) definition of “frames”, scholars like rudrappa and collins (2015, p. 943) have highlighted the importance of those “schemes of interpretation that enable actors ‘to locate, perceive, identify, and label’ events in their social worlds”. in commercial surrogacy, moral frames operate on different fronts. altruism, which is the main focus of this paper, is one of them. alongside altruism, the parties also develop different strategies to establish kinship relationships between the ips and the foetus or child. these strategies can help us understand how important it is for the parties to escape the accusation that commercial surrogacy agreements commodify human relations in reproduction and parenthood. 3.1. justifying kinship narratives about kinship play a major role in commercial surrogacy and other reproductive technologies, like egg donation and in-vitro fertilisation, because these practices “challenge biological essentialism through the separability of egg, gestation, and biological mother” (thompson 2005, 166). as identified by dillaway (2008), commercial surrogacy separates the three main aspects of motherhood: the genetic, the gestational, and the social. the genetic aspect belongs to “the woman who contributes the egg that becomes the foetus”, which in the case of traditional surrogacy is the surrogate, and in the case of gestational surrogacy is a woman different from the surrogate (either the intended mother, jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 281 an egg donor, or another woman who gets paid in exchange for her ova). the gestational aspect is assumed by the surrogate, “who carries the foetus to term, nourishes it for nine months, and gives birth to the child”. the social aspect corresponds to the person(s) “who ultimately raise(s) the child and assume(s) the responsibility of caregiving” (dillaway, 2008, p. 307), namely, the ips5. in recent years, the separation conceptualised by dillaway has been further enhanced by the proliferation of gestational surrogacy in major commercial surrogacy markets (see jacobson, 2016, p. 11 for the u.s.; teman, 2010, p. 2 for israel; rudrappa and collins 2015, p. 939, for india; and smietana, rudrappa, and weis, 2021, p. 5 for russia). according to ethnographic research on gestational surrogacy, the parties in commercial surrogacy agreements have developed different strategies to justify genetic and gestational connections to the foetus (and, later, the baby), even when genetic material and gestation are provided by women different from the intended mother. for instance, reports show that some intended mothers prefer genetic material from women who are culturally, ethnically, or socially close to them whenever they cannot provide the ova (thompson, 2005, p. 168). the genetic aspect is also emphasised by surrogates as a way to justify their decision to give away the child after birth. berend (2016, p. 74) notes that it is common, among gestational surrogates, to highlight lack of genetic connection to distinguish their case from traditional surrogates’. even though this is not normally intended as a critique to traditional surrogates, it portrays the view that giving away a child with whom they share a genetic connection would be much more difficult (pp. 74-75). this view is also present among indian surrogates and reinforced by other agents in the industry like physicians and nurses (pande, 2010, pp. 307–308). as dow’s research on opinions about commercial surrogacy in scotland shows, even in jurisdictions where the practice is illegal, the absence of genetic connection with the child tends to make the surrogates’ decision more understandable in the eyes of society (dow, 2015, p. 12). this tendency amongst intended mothers, surrogates, and other actors in commercial surrogacy to emphasise genetic connection makes it easier for them to justify their decisions in their social environment. at the same time, the importance they attach to genetic connection is often conveniently adapted to their situation, not only in surrogacy, but in other reproductive technologies. as reported by thompson in the u.s., different aspects of motherhood are emphasised or deemphasised in common narratives surrounding assisted reproductive technologies in the same country, depending on their convenience when establishing parenthood. the author highlights how, in the context of in-vitro fertilisation via egg donation, it is common to stress the importance of the time spent in gestation, the custodial role of the mother, and the experiential aspects of pregnancy (thompson, 2005, p. 168). 5 legal procedures to award custody rights to the ips vary from one jurisdiction to another. while in some countries ips have custody recognised from the moment of birth, in others, like thailand, legal custody at birth is awarded to the surrogate, and only recognised to ips after “a timely and costly parental rights transfer process that is undesirable to intended parents” (caamano 2016, p. 580). parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 282 parties in commercial surrogacy agreements have also adopted strategies to build gestational ties between unborn children and their intended mothers. in israel, this is done by engaging in extremely intimate relations with surrogates, which has led teman to develop the idea of “the shifting body”: a psychological extension of the symptoms of pregnancy from surrogates to intended mothers that allows the latter “to construct a pregnant identity and to gradually confer maternal status” (teman, 2010, p. 147). for israeli intended mothers, according to the author, (pp. 178-179), “it is not enough … to have a genetic connection; instead, she has to engage in a pregnancy by proxy to embody the gestational environment ‘carrying’ her child, and to ‘replace’ her surrogate in a prosthetic process of ‘pseudoprocreation’”. this can be explained by the prevalence of essentialist western ideals of femininity that construct the experiences associated to childbirth and pregnancy as “standards for proving ‘normal womanhood’” (p. 152). even in this context, genetic connection is still relevant in cases where the relation between the surrogate and the intended mother becomes so close that it is complicated for their social environment to establish who is the mother. when this occurs, teman (2010, p. 158) reports, intended mothers often appeal to their genetic contribution to dispel doubts about their standing. this suggests that parties in commercial surrogacy agreements alter their proclaimed views about the adequate bases for parenthood depending on how convenient they are to justify their situation. recent emphasis on procreative intent among ips and surrogates further supports this claim. according to thompson (2005, p. 172), “procreative intent (tagged by intention, payment, and often the role of class in the court’s perception of a child’s best interests)” has become more important in courts’ decisions about legal custody. intent has also emerged as a popular foundation for parenthood among u.s. surrogates who want to legitimise their actions. berend (2016, p. 78) reports how “both gestational and traditional surrogates see the fervent desire for a baby as the basis of parenthood”. for u.s. surrogates, it seems appropriate to emphasise intent to the detriment of genetic connection because “many ips use or end up using donated gametes” (p. 73). the need to rely on these narratives to establish kinship seems to emerge from the social anxiety about the possibility of commercial surrogacy constituting the commodification of babies (smietana, rudrappa and weis, 2021, p. 8). expected social criticism, arising from the perception that ips are paying for custody rights over babies and that surrogates are selling custody rights over their own children (see jacobson, 2016, p. 58), encourages the parties in surrogacy agreements to emphasise the importance of genetic connection, gestation, or intent depending on how they can serve to justify their decisions. 3.2. altruistic motivations narratives that establish relatedness between children and intended parents are not the only relevant moral frame used by parties, in contexts where commercial surrogacy agreements are legal, to ease social anxieties about the commodification of human relationships in reproduction and parenthood. another prominent discourse, especially in india and the u.s., depicts the parties as being motivated by a concern to improve each other’s position, which leads them to emphasise altruistic motivations when justifying their jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 283 decision to take part in a commercial surrogacy agreement. these references to altruism, like appeals to genetic relatedness or intent, help the parties dispel social conceptions of commercial surrogacy as a purely commercial exchange of money for gestation and custody rights that commodifies reproduction (smietana, rudrappa and weis, 2021, p. 8). as defined by cohen, commodification amounts to “treating people according to a market norm—the norm that says they are to be dispensed with if they cannot produce at a rate which satisfies market demand” (cohen, 2000, p. 181). cohen’s view is that commodification is the equivalent of a market transaction in which human beings treat each other based entirely on their utility to create a certain benefit. this type of treatment entails, for the author, turning “human producers into commodities” (p. 181). in cohen’s perspective, this form of treatment is particularly objectionable when it occurs against a background of inequality, namely, when some people treat others as commodities through the exercise of power over them (vrousalis, 2012, p. 158). as an alternative, the author defends a form of reciprocity, “communal reciprocity”, that he defines as “the antimarket principle according to which i serve you not because of what i can get in return, but because you need or want my service, and you, for the same reason, serve me” (cohen, 2009, p. 39). following cohen’s insights, commodification can be defined, roughly, as the treatment of human beings as commodities within market transactions and against a background of inequality that allows one of the parties to exercise power over the other. this broad definition of commodification can be further specified, when analysing markets in human reproduction, by adding a reference to the body, as the distinct human component that is subject to this form of treatment. in nancy scheper-hughes’s approach to markets in reproduction, commodification refers to “all capitalised economic relations between humans in which human bodies are the token of economic exchanges that are often masked as something else—love, altruism, pleasure, kindness” (scheper-hughes, 2001, p. 2). this “masking” of commodification as “something else”, it should be noted, need not always be complete, as it may be possible for the parties to acknowledge being motivated by the individual obtainment of benefits and, at the same time, highlight that those benefits are not the only, perhaps not even the main, motivation leading them to enter commercial surrogacy agreements. common discourses among u.s. surrogates reported in ethnographic research are a good example of this partial decommodification. according to jacobson, many surrogates justify their decision to gestate somebody else’s child by appealing to an empathic feeling towards an infertile person in their close social circle (jacobson, 2016, p. 53). that feeling figures among the most popular reasons, according to jacobson’s work, mentioned by surrogates as encouraging their decision to help other infertile couples. that does not mean that surrogates never mention monetary compensation as a reason to get involved in surrogacy. in particular, their demand for compensation is sometimes understood as a way to reinforce their position and avoid being viewed as someone that people can take advantage of (p. 61). yet, surrogates emphasise that monetary compensation alone would not be sufficient for them to accept the daily sacrifices that carrying a child for someone else entails. interestingly, one of the surrogates in jacobson’s study states: “i don’t know many people who would go through this much for a job. this is more a personal, fulfilling thing parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 284 that i want to do for someone else” (p. 65). this narrative was also reported in ragoné’s earlier studies (see 1996, p. 356) and in berend’s more recent research on surrogates’ online interactions (see 2016, p. 65). once again, according to jacobson, appeals to altruistic motivations enhance the social acceptability of the surrogates’ decision: “downplaying compensation allows surrogates to distance themselves from [negative images] and to present a more positive framing of their motivations: one based on altruism and gift giving, rather than money making—and one that acknowledges the labor involved but does not frame that labor as a route to quick money” (jacobson, 2016, p. 60). these narratives, that conceptualise u.s. surrogates’ relationships with ips as something beyond being merely a party to a contract, are further reinforced by their acknowledged desire to establish a connection with ips beyond commercial transactions (see berend 2016, pp. 64-65; smietana, rudrappa, and weis, 2021, p. 13). such a desire is also expressed by israeli surrogates, who consider “chemistry” (feeling naturally drawn to someone) to be fundamental in their preference for certain candidate ips over others (teman, 2010, p. 136). likewise, indian surrogates resist “the commercial and contractual nature of their relationships by establishing or imagining a relationship with the couples hiring them” (pande, 2010, p. 307). these desires to depict their relationships with ips as something beyond contractual exchanges are strongly influenced by cultural conceptions about the adequate motivations for gestation and reproduction in each of those countries6. surrogates are not the only ones to justify their involvement in surrogacy by appealing to motives beyond simply obtaining a benefit from others. india’s case is very telling regarding the ips’ need to introduce motivations beyond self-interest in justifying their decision, especially when they come from economically advantaged countries. as suggested by rudrappa and collins (2015), the large economic differences between indian surrogates and the commissioning individuals or couples fuel the need for ips to introduce economic, aid-related motivations in justifying their preference for india’s surrogacy industry, which provides much cheaper deals than, for example, commercial surrogacy in the u.s. this type of justifications is encouraged by agencies, which commonly depict indian women as “poor mothers who are victims of their culture, dependent on men in their families, and inextricably tied to their familial and kinship networks” (p. 948). this allows ips to “understand themselves as moral social actors who do not exploit surrogate mothers”, but rather “ease the latter’s entry into better lives”. in turn, this helps “remove the anxiety surrounding the exchange of money for babies and 6 russia represents, in this regard, a telling example of the influence of context, since, as reported by smietana, rudrappa, and weis (2021, p. 11), the expectation of friendship or altruistic motivation is not considered necessary to make surrogacy agreements more socially palatable. rather inversely, surrogate recruits are “expected to have a business attitude” and, “[i]n order to prevent arrangements from getting messy, agencies [advise] client parents to avoid developing friendships with their surrogacy worker” (p. 11). for this reason, russia’s case should be discounted, as an exception, in discussions about the interactions of altruism and commodification in commercial surrogacy like the one presented in this section. consequently, the analysis i will develop here does not intend to apply to russia’s commercial surrogacy industry. nonetheless, i will refer to it again further below, when discussing its implications for alternative scenarios regarding the legal status of commercial surrogacy. jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 285 allow[s] surrogacy agencies and clients to understand themselves as kind-hearted actors with generous intentions” (p. 948). in contexts where reproduction and gestation are not considered adequate spaces for market transactions, narratives of altruism, friendship, and gift-giving help the parties in commercial surrogacy agreements make their decisions more socially justifiable. when combined with narratives about kinship, narratives of altruism help the parties escape a common understanding of commercial surrogacy among its critics, as acquiring legal custody over someone else’s baby by means of a purely commercial transaction (see anderson 1990; 2000). kinship narratives challenge the first italicised element by affirming that the commissioned child is already the ips’ (because of their genetic connection, their pregnancy by proxy, or their procreative intent), and the surrogates’ pregnancy only a temporary arrangement with no relevance to establish parenthood. narratives about altruism challenge the second italicised element by appealing to noncommercial motivations. those motivations dispel concerns about the parties being moved by selfishness, in contexts where common cultural understandings about gestation and reproduction consider them incompatible with motivations that are typical in market transactions. 4. unbalanced altruism: securing the interests of ips and agencies but moral frames of altruism play another important function, aside from enhancing social acceptability, in commercial surrogacy agreements: they help secure the results desired by ips and agencies, especially when the surrogates’ demands threaten their completion. authors like berkhout have already denounced that, since the goal of commercial surrogacy agencies is to ensure that the pregnancy is carried to term and the child is handed over to the ips once born, whenever surrogates find their own ways to interpret surrogacy agreements different strategies are developed to marginalise their interpretation of the relation (berkhout, 2008, p. 103). one such strategy, as i will explain below, relies on sexist stereotypes about women’s self-sacrificing nature to dispel their complaints about contractual clauses or their relationship with ips. some commercial surrogacy industries (particularly, the u.s. and india, despite adopting different approaches) rely on an imbalance in the expected motivations of the parties. while ips and agencies can justifiably act in ways that further their self-interest, surrogates are expected to have a natural disposition to sacrifice, even if that disposition is not reciprocated. let us recall that, in cohen’s framework, treating someone as a commodity amounts to seeing her as a “source of enrichment” (cohen 2009, p. 40). in contrast, profit is not the key motivation when one is moved by his preferred form of reciprocity, communal reciprocity, in which the willingness to provide mutual help is enough to move people to relate with each other. how these motivations interact and how the parties employ them to justify their decisions in commercial surrogacy agreements often reflects the effect of some gender stereotypes that are prominent in some countries’ culture, and that make the agreements’ functioning reliant on gender inequalities. parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 286 in her comprehensive research on smo, the largest moderated public surrogacy website in the u.s., zsuzsa berend analyses the role of popular narratives about women’s altruism in justifying the purpose and functioning of commercial surrogacy agreements. across the different discussions that take place in smo, berend perceives a tendency for most surrogates to frame their relationship with ips in intimate and altruistic terms. for instance, she remarks how difficult surrogates in smo found it to talk about money in “such a personal and emotional” relationship (berend, 2012, p. 924). most surrogates characterised their experience in the first weeks after the agreement in terms of love and enthusiasm for the ips, and some of them even recognised how they “let a lot go in financial terms” because of their love for their ips (pp. 923‒928). a lot of them also emphasised “the heart” in their comments, which, berend claims, is consistent with the western cultural understanding that sets love—an allegedly female characteristic—in opposition to calculation—more commonly associated with men (p. 923). in smo, the surrogates’ decisions are both “informed by and formulated with reference to powerful cultural symbols of the female nature as loving and nurturing, the importance of children and the taboo of commodifying human life within the contemporary reality of the market economy” (p. 924). moral frames about the surrogates’ disposition to altruism and self-sacrifice help shape their relationship with their ips in a non-commercial fashion during pregnancy. however, those references to altruism and the disposition to sacrifice themselves, berend explains, are greatly undermined when their relationships with ips finish after the child is born. many surrogates in smo see their desire to maintain their friendship with ips broken after childbirth, whilst ips usually try to redefine the relationship on their own terms. berend notes how, when surrogates complained about the ungrateful behaviour of their ips, the language of altruism disappears from their interactions, and is replaced by narratives more typical of market exchanges: since they understand the relationship in contractual terms, ips reject the need for them to be grateful, especially considering that they had “paid in full” for the surrogates’ services (p. 927). this frequent situation is characterised by an imbalance between the surrogates’ motives, which commonly appeal to their disposition to sacrifice for others, and those of the ips, who show that their only interest is paying a price for something they assume will get. when the ips do not reciprocate the surrogates’ altruistic behaviour with gratitude, veteran surrogates assumed the task of reminding disappointed beginners that creating life is a reward on its own (pp. 927‒928). the expectation that surrogates are inclined to engage in commercial surrogacy agreements by altruistic motivations, regardless of whether these are the same as those of the ips, is further highlighted by the disparity between the agencies’ preferred dispositions when recruiting surrogate candidates, and the way surrogates themselves report being treated by those agencies. as stated by jacobson (2016, p. 60), “agencies are careful to avoid surrogates who appear to be ‘money hungry’”. this, in part, can be understood as a consequence of the traditional negative connotations about women’s paid work that identify remunerated employment with selfishness, and staying at home with altruism (p. 67). at the same time, it also makes it easier for agencies to ensure that their candidates will be ready to make sacrifices that they would not find acceptable in any other job (see, p. 65). in contrast, many surrogates complain about agencies treating them in a workjesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 287 like fashion, especially by controlling how they deal with the pregnancy—nourishment, healthy habits, etc. (p. 65). this imbalance between the motivations expected from surrogates and the agencies’ zealous control over their pregnancy shows that the agencies’ interest in finding candidates willing to make compromises for the sake of the agreement is not accompanied by a parallel interest in reciprocating them. narratives about the gift that life represents in itself also appear in other commercial surrogacy industries, outside the u.s. surrogacy agencies in the indian commercial surrogacy industry also support this idea, with the purpose of building an image of surrogates as self-sacrificing, naturally unselfish, women that are happy to undertake the process for no reason other than helping a third-party ip. rudrappa and collins (2015, p. 946) report that indian agencies often describe surrogates as generous, yet poor individuals, and as “happy” to be of service to others, but who are secretive about their choice and unwilling to speak to clients. this monolithic image of surrogates emphasises the agencies’ interest in justifying the surrogates’ physical and emotional hardships through the process by portraying them as naturally disposed to sacrifice themselves for others. even though, as explained above, narratives of altruism are intended to dispel social concerns about the commodification of women and children through commercial surrogacy agreements, when analysed from a wider perspective that considers the entire range of motivations of all the parties to commercial surrogacy agreements, this construction of surrogates as naturally altruistic subjects might not prevent or diminish commodification. to understand why that is the case, it is important to highlight that, regardless of the ips’ statements about why they enter into surrogacy agreements, their behaviour often departs from what might be generally understood as altruistic. berend’s study shows how the ips alter the dispositional framework of their relationship with surrogates depending on what most satisfies their interests in each circumstance. for instance, whenever surrogates experience difficulties with their pregnancy, like the premature birth of the child, ips tend to redefine their relationship from an “ongoing intimate friendship to a terminable business transaction” (berend, 2012, p. 927). berend herself reports how, in smo, surrogates are encouraged to genuinely care for their gift to the intended parents from the early stages of pregnancy, when it is only an embryo or foetus (berend, 2010). yet, when miscarriages occur, there is no parallel encouragement on ips to care about the emotional situation of the surrogate, who is left “with a diffuse obligation to mourn the loss that is not mourned by anyone else”, while the ips can “walk away as if from a failed transaction” (p. 254). this shows how, even if, in the beginning, they might be willing to treat surrogates in ways that depart from those typical of market exchanges, ips deal with potential threats to the end-result of the contract—them acquiring a healthy child—very similarly to how a customer deals with manufacturing defects or delivery delays in a product she has just acquired. unlike surrogates, who are encouraged to compromise their expectations and rights in the agreement for the sake of a greater good—making other people happy by bringing a new life to the world—, ips are never expected to concede on any of the terms of the contract. rather, as anderson suggests, the agencies’ role in commercial surrogacy parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 288 agreements constitutes exercising different kinds of pressure on surrogates to ensure that what was promised to ips as part of the contract is adequately fulfilled (anderson, 1990, p. 76). that pressure, as berend’s study shows, is further enhanced by actors like veteran surrogates, who constantly remind newcomers of their duty to sacrifice for others without expecting anything in return, and discipline complaints about lack of reciprocation from ips by relying on ideas like “acceptance and resignation” (berend, 2016, p. 88). on the contrary, those surrogates who accept that their desire for friendship is not shared by ips are rewarded with compliments (p. 97). interestingly, while surrogates are encouraged not to develop any feeling of attachment to the foetus or the baby (p. 81-82), “[t]he emotional connection surrogates feel or wish to feel to their couple is easier to understand if we consider that surrogacy involves the giving of oneself that in the modern western cultural context is appropriate only in loving personal relationships” (p. 83). this stark contrast between the behaviour and dispositions expected of surrogates, on the one hand, and those expected of ips, on the other, indicates that the presence of altruism in u.s. and indian commercial surrogacy agreements does not diffuse commodification by agencies and ips, as it works as a device to promote the ips’ interests by encouraging surrogates to act in those ways that are better suited to meet other people’s demands. the presence of altruism in these agreements might ease social anxieties about perceived commodification, but it does not lessen the commodification of the gestational work of women, as it allows agencies and ips to obtain greater benefits from them. following cohen’s characterisation of communal reciprocity (see above, section 3.2.), the behaviour of agencies and ips in these situations does not seem to make the requirement to serve others for strictly non-instrumental, non-egoistic, reasons materialise. instead, they portray a scenario in which ips and agencies have an interest in depicting surrogates as naturally self-sacrificing to ensure that they act in ways that get them what they want. once again, this discursive strategy fits within wider gender narratives that construct women as naturally inclined to sacrifice for others. this type of dynamic, in which one group pressures another to behave altruistically, was already examined by folbre’s analysis of gender inequalities in the field of family care. folbre points out that “since it is costly for individuals to make sacrifices, groups that develop ways of persuading—or pressuring—individuals to sacrifice for the ‘greater good’ may enjoy some advantages” (folbre, 2012, p. 604). folbre herself summarises this idea in the following way: “selfish individuals fare best in a world in which others are altruistic” (p. 606). in commercial surrogacy agreements, women’s sacrifices in the field of reproduction are prompted in specific ways. in the u.s., these include, as mentioned above, veteran surrogates reminding less experienced surrogates of the intrinsic reward of creating a new life for others, and agencies emphasising the importance of altruistic motivations when recruiting them. in india, agencies’ depictions of surrogates as happy to be of service for others frame their relationships in a way that justifies sacrifices without imposing an expectation on ips to reciprocate them. in both contexts, the functioning of commercial surrogacy relies on common narratives that draw a clear contrast between surrogates, whose appropriate function is to think about the ips’ happiness or the greater good of creating life, and the ips, who can adequately treat surrogates on the basis of self-interest, and care for the surrogates’ wellbeing only inasmuch as it affects the child they want to raise as their own. jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 289 to the extent that narratives of altruism within these contexts aim at making it easier for ips and agencies to profit from women’s bodies and labour, we can at least suspect that they do not undermine commodification. if anything, as stated above, they reinforce it. this representation of surrogates as naturally self-sacrificing subjects might fuel the idea that women’s main social function is to put their bodies at the service of market demand. before commercial surrogacy reached its current dimension, these traditional narratives that institutionalise the image of women as breeders (dillaway, 2008, p. 317) upheld their subordination to men within marriage and the family. nowadays, they serve an additional purpose: securing the human means necessary to satisfy the market demand for children. women’s reproductive capacities are sometimes seen as an asset that they should surrender to others’ demands. berkhout (2008, p. 100) points out that these patriarchal dynamics include the branding of those women who lack the desire to get pregnant as “selfish, unhappy and emotionally deviant”. according to the author, research around the acceptability of reproductive technologies still detects a discursive connection between female fertility and personal identity, “as well as feelings of social exclusion among childless women” (p. 100). in these contexts, commercial surrogacy agreements rely on essentialist views of women as self-sacrificing and on notions that connect womanhood to a desire for pregnancy. at the same time, people who are wealthy and have a desire for children are told by surrogacy agencies that it is appropriate to use their economic resources to obtain a benefit from surrogates without making reciprocal sacrifices. 5. commercial surrogacy and gender inequalities given its reliance on traditional assumptions about women’s disposition to altruism, and the way these assumptions make it easier for ips and agencies to obtain sacrifices from surrogates, in countries like the u.s. and india commercial surrogacy can entrench gender stereotypes that have historically upheld gender inequalities, especially in reproduction and family relationships. the fact that some surrogacy markets rely on common notions about women’s self-sacrificing nature and their altruistic desire to bring a new life to the world does not mean that all women will be equally disadvantaged. drawing on spelman’s critique to gender realism (spelman, 1988), young (1994) highlights how it would be inadequate to conceive of women’s experience of gender relations as completely independent from other conditions like class, race, or nationality7. yet, this is not incompatible, in my view, with the argument that ideas about womanhood, and the expectations that such ideas assign to women, play a key role in the functioning of the u.s. and india’s commercial surrogacy industries, and that the possibility of the practice becoming more prevalent might not counter, but rather reinforce, gender inequalities. young herself points out that, even if 7 i would like to thank two anonymous reviewers for pointing out that ignoring the consequences of class, race, nationality, and other conditions in the operations of commercial surrogacy agreements would render my approach to commercial surrogacy from the perspective of gender inequality incomplete, and vulnerable to the critique that it flattens out gender. parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 290 conditions like class affect women’s experiences and relations, we should not assume that cross-class relations are not gendered (young, 1994, p. 720). following this line of thought, ethnographic work in contexts like the u.s., india, and israel clearly states that traditional views of womanhood affect the relations between the parties and their expected behaviour in commercial surrogacy agreements and are also fundamental for the agreements’ social acceptability and functioning. the avoidance of women perceived as selfish in agencies’ recruitment in the u.s. (jacobson, 2016, p. 60), the construction of indian women as happy to help in the agencies’ interactions with ips (rudrappa and collins, 2015, p. 946), or the importance attached to connection or clicking with ips in israel (teman, 2010, p. 136) are just a few examples of the importance of gendered expectations in commercial surrogacy agreements. the fact that such expectations might impact women differently does not necessarily mean that they cannot be described as instances of gender inequality, especially considering that they are not commonly attached to men’s acceptable or expected behaviour. similarly, the fact that, because of “the broader context of socio-economic stratification” in reproduction (smietana, 2017, p. 5), uppermiddle class intended mothers are often the ones to commission commercial surrogacy agreements does not mean that gendered constructions about women’s natural disposition to care and act altruistically are irrelevant to make commercial surrogacy agreements more advantageous for ips. it may be the case that, because of the intersection between class and gender present in reproductive stratification, upper-middle class women are not affected by those constructions in the same way as those who “come from lower social class backgrounds” (p. 5). yet, this does not necessarily weaken the argument that those constructions give rise to inequalities that may be adequately called gender inequalities. such an argument is, in my point of view, reinforced by the fact that common associations between care, altruism, and motherhood, on the one hand, and womanhood, on the other, also affect the position and expectations of ips in surrogacy agreements depending on their gender. for instance, teman reports how, in israel, “[i]ntended fathers were involved in the negotiations over the contract, financial decisions during surrogacy, and the birth itself, but tended to step aside during other aspects of the process”, most relevantly the emotional aspect of building an affective relation with the surrogate (teman, 2010, p. 138). in the u.s., berend’s research depicts a similar divide: while intended mothers often develop a link of “fictive kinship” with the surrogate (2016, p. 81), “intended fathers are the focus of bonding only when they are gay” (p. 83)8. so, even if, because of their class, intended mothers are not affected by the gendered role division in the same way as surrogates, their role in commercial surrogacy agreements also draws on that division, since emotional and affective work is commonly considered their parcel, while financial arrangements tend to be the realm for men. 8 it is important to acknowledge that, as berend suggests (2016, p. 83) the exclusion of heterosexual intended fathers from the emotional duties of the relation have to do with the “adulterous connotations of procreation outside of marriage” (p. 83). but we should not rule out that social expectations that separate men from care work, for instance by assuming that care is something that men are necessarily bad at (see elliot, 2016, p. 15) also play a role in reinforcing those connotations. jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 291 the surrogates’ relationships with gay ips also show that sexual orientation might change the way gender inequalities manifest in commercial surrogacy when compared with the surrogates’ relationships with heterosexual ips. the fact that, as reported by berend, bonding with intended fathers is only common among u.s. surrogates when they are gay shows that the intersection between gender and sexual orientation—like the intersection between gender and class—also affects the ways in which inequalities appear in the relations among the genders. in fact, smietana’s research on the relationships between surrogates and gay ips suggests that “surrogacy was founded on socio-economic class stratification, where the surrogates occupied lower middle-class positions, and gay fathers higher middle-class ones” (smietana, 2017, p. 9). at the same time, he adds that “economic narratives were also shaped by a normative frame, according to which women who become surrogates should be motivated by a positive affect rather than economic pressure” (p. 9). so, even if affected by the intersection of class and sexual orientation, common gender narratives that are fundamental for the functioning of commercial surrogacy still play a role in the relationships between surrogates and gay ips. in narratives that connect surrogates with an expectation to be moved by altruism in particular, ethnographic research suggests that, even if gender inequalities do not affect all women equally—and do not affect their relationships with all men equally—, commercial surrogacy relies on traditional stereotypes about women that justify, and reinforce, current gender inequalities. narratives about women’s allegedly altruistic nature imply that people can legitimately expect from them sacrifices that are typical of an others-regarding disposition that is (at least) not (as commonly) expected from men. 6. commercial surrogacy, the social value of care work, and gender inequalities in the previous two sections, i have tried to explain that common gendered narratives in certain surrogacy contexts, most relevantly those that depict women as naturally inclined to self-sacrifice, play two major functions in commercial surrogacy agreements: making them socially acceptable, and enhancing the ips’ and agencies’ capacity to make sure that their interests are satisfied in ways that demand non-reciprocated sacrifices from surrogates. jacobson claims that some of the undesirable consequences of commercial surrogacy agreements for surrogates arise from culturally entrenched fears to consider surrogacy work. according to the author, “[s]urrogacy is work, and much of that work— including protecting the industry from scrutiny—falls on the backs of the surrogates … that work is more than simply hidden: it is deliberately obscured (emphasis added) to make it culturally palatable. the obscuring of surrogate labour allows surrogacy to function in the united states, yet i would argue that it poses potential costs for individual surrogates, ips, and women more generally” (jacobson, 2016, 177-178). this obscuring of surrogacy as work is, jacobson suggests, rooted in “deep-seated anxieties about the intersection of the market and reproduction, women and work, and the commodification of humans and their biological products” (p. 177). jacobson’s statement suggests that, in environments like those u.s. states where commercial surrogacy is legal, the practice still navigates grey areas in which commodified gestation is allowed, but not completely considered work, even if there parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 292 is “demand and support for surrogacy” (p. 177). in those grey areas, surrogates are the ones to suffer the consequences of different social stereotypes that consider gestation incompatible with remunerated work, as the (socially imposed) need to characterise their transaction with ips as altruistic makes it easier, along the lines of my arguments in section 4, to extract greater sacrifices from them. obscuring surrogacy as work is, as jacobson claims, rooted in contextual cultural assumptions. this is well exemplified by the case of commercial surrogacy in russia, which does not rely on a conceptualisation of surrogates as naturally inclined to altruism; rather they are understood as parties in a business relation (smietana, rudrappa and weis, 2021). the stigma faced by russian surrogates is a good example of the disincentives u.s. surrogates might have for labelling their gestation as work, and the incentives that lead them to label their work along narratives of altruism and gift-giving. khvorostyanov and yeshua-katz (2020, pp. 481-482) state that despite their work being construed as “paid work that may not be highly respected but carries an important social function”, in online surrogacy forums surrogates are considered greedy and bad mothers, which “enables control over women’s bodies and challenges the source of their income”. from the perspective of gender equality, the comparison between commercial surrogacy agreements in the u.s. and russia implies that, in certain contexts, women who decide to become surrogates have to opt between being stigmatised as selfish and greedy, or depict their motivations in altruistic terms, as a result of common narratives about women’s disposition to self-sacrifice, which leads to worse working conditions for them. however, alongside social anxieties about the commodification of gestation (which, as explained above, are key to understand the parties’ strategies to justify kinship connections), pregnancy and other forms of nurturance are also “obscured” as work as a result of culturally entrenched, essentialist divisions, that tend to consider care work in general as predominantly female and of lower value, and occupations related to finance and stem (science, technology, engineering, and math) careers as predominantly male and of higher value. the prevalence of those divisions can be seen, for instance, in women’s own underestimation of their competence in stem, prevalent in the u.s. context (fine, 2010), or in the limited opportunities afforded to women by the russian labour market, where “male-dominated occupations are better paid and considered more prestigious than jobs primarily held by women” (khvorostyanov and yeshua-katz, 2020, p. 482). it should be noted, those divisions also affect the distribution of, and the social value attributed to, unremunerated care work within the home. both these findings indicate that the mere presence of the market and economic compensation in an activity—in this case reproductive care and, in particular, gestation— or its recognition as remunerated “work”, might not automatically break traditional assumptions about women’s work or empower them in family and wider social relationships. against jacobson’s suggestion that de-obscuring paid gestation as “work” would strengthen women’s bargaining power, berend (2016, p. 59) argues that, even if gestation is now able to be remunerated via commercial surrogacy agreements, u.s. candidates still consider their husband’s support essential to decide becoming surrogates. in russia, even if surrogacy is paid, gestation is still considered of inferior occupational value (khvorostyanov and yeshua-katz, 2020, p. 482). jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 293 jacobson’s argument about the social anxieties around the commodification of gestation could explain, in part, why current commercial surrogacy agreements reinforce, and rely on, gender inequalities. gestation is (for now, and overwhelmingly) women’s labour, and obscuring it as “work” can have a negative impact on the social value attributed to other forms of care work, still largely performed by women. this position suggests that surrogates could escape most of their current disadvantages in commercial surrogacy agreements if their societies naturalised thinking of gestation as remunerated care work. however, the anxieties jacobson has in mind are not the only, arguably not even the main, factor that explains the social undervaluation of care work that affects commercial surrogacy and many other activities. in my view, it is possible to argue that gestation and other forms of nurturance are undervalued as the result of gendered role divisions that uphold at least two additional ideas about care work: 1) that it is predominantly women’s, and not men’s, work, and 2) that it has less value than male-dominated occupations. both these ideas are independent from social anxieties about the commodification of gestation, as many other care-related occupations which are widely accepted as adequate spaces for market transactions are still highly undervalued in the labour market. this suggests that overcoming the obscuring of gestation (and other care-related occupations) as work may require other courses of action, different from naturalising market transactions in the field of reproduction. following elliot (2016), this could be achieved by implementing a comprehensive scheme of state policies including, inter alia, compulsory paid parental leave, which involve men in the world of household care. this might be particularly appropriate to lessen or even eliminate the impact of gender imbalances arising from the distribution of domestic work among heterosexual couples (see, for instance, eurostat, 2020, p. 24). elliot (2016, p. 4) supports the idea of promoting “caring masculinities” as an instance of a “gender equality intervention (hanlon, 2012) that seeks to integrate values and practices of care and interdependence, traditionally though not unescapably associated with women, into masculine identities”. men’s involvement in care, especially when promoted via state support, might contribute to erase social perceptions about its lesser value: by actively supporting the entire society’s implication in care, institutions might highlight its role as an essential activity. furthermore, these schemes might help escape cultural stereotypes about women’s endemic inclination to self-sacrifice, by promoting what lynch, baker, and lyons (2009) call “affective equality”, in other words, the equal distribution of attitudes such as love, care, and solidarity. these attitudes form the affective system that, according to the authors, is “one of the main social systems, along with the economic, political, and sociocultural systems, from which equality or inequality emerge”. by involving men in activities within the affective system, the above attitudes might cease to be perceived as exclusively female, which could undermine common confusions between biology and culture, that fuel conceptualisations of women as naturally inclined to nurturance because of their biological capacity to gestate children (nagel, 1997; wilson, 2004). this, elliot concludes, “can effectively change gender” (elliot, 2016, p. 16). therefore, even if some social anxieties about the intersection between gestation and the market obscure gestational work, that does not mean that those committed with parenthood, altruism, and the market the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 294 gender equality should embrace the naturalisation of market transactions in gestation as a means to advance a higher social valuation for gestational work. nor does it mean that advancing gender equality should lead us to dispel all social anxieties around the commodification of reproduction. some such anxieties are connected to concerns about the status of children and the grounds to establish custody rights before the law. according to anderson, legalising commercial surrogacy might open the door to disputes about legal custody over children being resolved based on payment (anderson, 2000, p. 21). this, the author argues, should be a cause for concern as, instead of focusing on the best interests of the child, legal disputes about custody rights might be resolved in the same way as disputes about property rights (p. 20). this would depart, the author claims, from “regarding parental rights over children as trusts” to be exercised in their best interest9. normalising market exchanges in reproduction, like the ones that take place in commercial surrogacy agreements, might not, therefore, be the best route available to challenge gender inequalities in care and reproduction, because gestational labour is obscured, in many societies, as the result of cultural assumptions that go beyond fears about commodifying reproduction. those assumptions have to do with the value attributed to (remunerated and unremunerated) care work, its consideration as predominantly women’s realm, and the social prevalence of narratives that depict women as more inclined to altruism and self-sacrifice than men. identifying gestation and family care as “work”, and as a socially valuable one, need not rely on dispelling cultural anxieties about the operation of the market in reproduction, especially those related to the commodification of legal custody rights over children. the commercial surrogacy market in russia, where surrogates are treated as parties to any other market transaction, suggests that treating gestation as any other market activity does not necessarily challenge social assumptions about the value of care work. instead, involving men and public institutions in the affective system might be more effective in enhancing the social valuation of care work, and advance women’s equal participation in remunerated and non-remunerated labour10, without prompting concerns about the commodification of legal custody rights over children. 7. conclusion commercial surrogacy has become increasingly relevant in recent years and has attracted the attention of several academics, who have developed a growing body of ethnographic fieldwork on the subject. that fieldwork permits critical approaches to the practice to draw comparisons and analyse how different cultural settings affect the positions of the parties in these agreements. in this paper, i have focused on commercial surrogacy’s implications from gender equality in some of the most relevant contexts 9 in reply to anderson, see mclachlan and swales, 2000; 2007; 2009. 10 as theorised by okin (1989, pp. 138-39), these gendered divisions of labour “involves women in a cycle of socially caused and distinctly asymmetric vulnerability” in which they are expected to be the primary caretakers within the household and, at the same time, are disadvantaged in “the world of wage work” because the labour market “is still largely structured around the assumption that ‘workers’ have wives at home”. jesús mora the age of human rights journal, 17 (december 2021) pp. 276-299 issn: 2340-9592 doi: 10.17561/tahrj.v17.6673 295 covered by those ethnographies. those implications are commonly portrayed in the moral frames used by the parties to justify their decisions in commercial surrogacy agreements. commonly, such moral frames rely on common stereotypes about women’s nature as self-sacrificing subjects that have detrimental effects for surrogates, and that may have detrimental effects for gender equality in general. even if highly stratified, it is still both possible and desirable to analyse commercial surrogacy along the lines of gendered narratives that attach certain expectations to women because of the fact of them being women, and to rise concerns about the practice’s reinforcement of, and reliance on, social stereotypes about women’s self-sacrificing motivations. whether these concerns mean that the growing popularity of commercial surrogacy alone will make overall gender inequalities worse in those contexts where the practice is legal might depend on factors beyond the practice itself. on the one hand, legal commercial surrogacy coexists with other trends and practices that rely on traditional stereotypes about women’s nature that are detrimental for gender equality. therefore, isolating the specific impact of commercial surrogacy for gender inequalities might be too complex and speculative a task11. on the other, narratives relying on stereotypes that justify gender inequalities, such as those present in commercial surrogacy agreements, are now challenged by changes in men and women’s social roles. nevertheless, this should not prevent critical assessment of alternative forms of parenthood and reproduction and their potential to promote, or hinder, our societies’ drive to greater justice in gender relations. nor should it stop critical inquiries from highlighting that, even if such forms of parenthood and reproduction can change how we think about traditional institutions like the family in some respects (such as kinship), they may still thrive, in some contexts, as a result of cultural assumptions that reinforce oppressive stereotypes about women’s nature. even if its impact in gender relationships is enhanced, or challenged, by other developments, commercial surrogacy and other reproductive technologies should continue to be evaluated as contributing, or counteracting, forces for gender equality. references almeling, r. 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(2019) ‘situational ethics in a feminist ethnography on commercial surrogacy in russia: negotiating access and authority when recruiting participants through institutional gatekeeper’, methodological innovations, 12(1), pp. 1–10. https://doi. org/10.1177/2059799119831853 wilson, c. (2004), moral animals: ideals and constraints in moral theory. oxford: clarendon press. https://doi.org/10.1093/0199267677.001.0001 young, i.m. (1994), ‘gender as seriality: thinking about women as a social collective’, signs, 19(3), pp. 713–738. https://doi.org/10.1086/494918 received: june 30th 2021 accepted: october 4th 2021 https://doi.org/10.1177/2059799119831853 https://doi.org/10.1177/2059799119831853 https://doi.org/10.1093/0199267677.001.0001 https://doi.org/10.1086/494918 parenthood, altruism, and the market: a critique of essentialist constructions of women’s nature in abstract 1. introduction 2. commercial surrogacy: definition, actors, and current dimension 3. making commercial surrogacy socially acceptable 3.1. justifying kinship 3.2. altruistic motivations 4. unbalanced altruism: securing the interests of ips and agencies 5. commercial surrogacy and gender inequalities 6. commercial surrogacy, the social value of care work, and gender inequalities 7. conclusion references transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 300 transitional justice, victims and human rights in the light of international law and the inter-american system of human rights florabel quispe remón1 abstract: the article begins by analyzing the origin and evolution of the concept "transitional justice", determining its characteristics, the context in which it was born and developed, as well as the role of the state in this process. then it focuses attention on analyzing the development of this figure in the jurisprudence of the inter-american human rights system, through the work that the inter-american court has been carrying out since its operation, interpreting in a broad way and always pro homini, the american convention of human rights. throughout its years of operation, it has ruled on the state's obligation to protect and guarantee human rights and to carry out the pertinent investigations in the event of their violation; as well as the recognition of the status of victims to the victims' families and their pronouncement of the right to the truth, not as an autonomous human right, but rather as a right of the victims and their next of kin. undoubtedly, these are aspects that have gone beyond the american convention. keywords: transitional justice, human rights, inter-american court, truth, victim. summary: 1. introduction. 2. origin and evolution of transitional justice in international law. 2.1. background and development of transitional justice. 2.2. concept of transitional justice and its relationship with international human rights law. 2.3. characteristics of transitional justice. 2.3.1. determination of victims and investigations after a dictatorship or armed conflict. 2.3.2. establishment of mechanisms to alleviate the consequences of serious and systematic violations of human rights seen from practice. 2.4. recognition of transitional justice at the united nations. 2.5. the chicago principles on transitional justice. 3. transitional justice in the inter-american human rights system. 3.1. brief reference to the creation of transitional justice in latin america and the inter-american human rights system. 3.2. the inter-american court and its development of transitional justice elements. 3.2.1. the next of kin of victims and their consideration as victims by the inter-american court. 3.2.2. the right of victims to the right to the truth according to the inter-american court. 4. final reflections. 5. bibliography. 1. introduction the great internal and/or international conflicts, armed or not, and the dictatorships in various parts of the world have as a consequence led to, on the one hand, great suffering for human beings, and on the other hand, the adoption in many cases of amnesty laws, synonymous with forgetting and abandoning people who have experienced such suffering brought about by the state and, why not say it, also by society. that is what impunity means. there are many states, among others, chile, paraguay, uruguay, that did not 1. professor of public international law. universidad carlos iii de madrid, spain (fquispe@der-pu.uc3m.es). this article has been written within the framework of the research project ods, derechos humanos y derecho internacional (pgc 2018-095805-b-100). mailto:fquispe@der-pu.uc3m.es florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 301 carry out relevant investigations and pursue consequences, unlike argentina, which has singled out and prosecuted the military for their role in repression (pion-berlin, 1995, p. 82) in a democratic state, the state is in charge of protecting human rights (human rights) of all people who are under its jurisdiction regardless of their nationality. after all, human rights are the limit to the absolute will of the states. the state has the obligation to guarantee the effective enjoyment of human rights, and for this, it must have adequate and honest mechanisms, which, if applicable, carry out pertinent investigations to find those responsible for the violations, prosecute them, with the necessary corresponding guarantees and condemn them. this contributes to the fight against impunity and makes the victims trust their protection system and feel the state is on their side. however, in practice, we note that one of the characteristics of dictatorships or conflicts is the absence of respect for human rights. in this context, taking into account the progress and increasing commitment by the international community to the establishment and consolidation of democratic societies, and due to the recognition and respect of human rights, the figure known as “transitional justice” (tj) of the state arises in the protection of their rights, that is, for the victims. for this reason, certain authors have defined it “as the conception associated with periods of political change”, a justice that arises and is applied between one political regime and another (o'donnelll & schemitter, 2003, p. 69). a justice that seeks to recognize the victims, investigate the facts and redress them, if it is the case, in some way all the suffering experienced. however, there is no single recipe for the measures to be adopted, nor a specific omnipotent authority to decide which measures to adopt after the “storm”, which leads to the discussion of what measures should be applied and who is authorized to know what is really needed or to meet the needs of the victims and the population in general. méndez, taking into account what has been experienced in latin america (la) and in other parts of the world in the attempt to restore truth and justice, includes certain principles that are generally applied, and disagrees with the affirmation that democratic leaders are the ones who best know the needs of their society at a given moment, and thus, not suitable to impose rules about what to do with the recent past (méndez, 1997, p. 255). he argues that democratic leaders should only fight to restore the truth of the recent past and, "in general, avoid any attempt to restore justice, at least through criminal proceedings. as mentioned before, from the point of view of international human rights law, states have the obligation to protect the rights of all persons who are under their jurisdiction from the moment of ratification of international instruments. however, we must bear in mind that these international instruments do not refer to “transitional justice”, although both are aimed at human being; and in this context, it is of interest to know the position or interpretation of the human rights protection bodies of the human rights treaties with reference to transitional justice. therefore, given the importance of the subject for demanding rights and / or obtaining justice, the present work aims, first of all, to briefly analyze, given the limitations of the scope of the work, the figure of jt, examining its origins, its evolution, its characteristics, its scope and its relationship with victims and human rights; and secondly, once the issue has been contextualized, analyze its treatment in international law, specifically in the jurisprudence of the inter-american court of human rights (inter-american court of human rights) to see how this judicial body of the inter-american human rights system (ihrs) has interpreted / developed the jt, with special emphasis on the justice transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 302 element. the analysis of the jurisprudence of the inter-american court is important, first, because a large part of the states that are now part of the iasr, and have assumed the contentious jurisdiction of the court, have suffered dictatorships or armed conflicts, where application of a jt was necessary; and second, because in the latin american regions the jurisprudence of the inter-american court, due to the development of conventionality control by the inter-american court, acquires special relevance because the states that assumed the jurisdiction of the court would be obliged to incorporate their jurisprudence into their domestic law. for this, it is necessary to resort to the authorized doctrine, to some resolutions of international organizations such as the united nations, and especially to the jurisprudence of the inter-american court, the main objective of our study. this is done through legal dogmatic methodology, first addressing the general framework of transitional justice, and then addressing its development in international law, especially in the interpretation that the inter-american court has developed of this figure, under the american convention of human rights. the analysis goes from the general to the specific, to finalize with some conclusions. 2. origin and evolution of transitional justice in international law 2.1. background and development of transitional justice this is an expression coined in the 1990s by us academics, "to refer to the different ways that countries had to solve the problems that arose when a government came to power after its predecessors committed massive rights violations”2. this ended up having repercussions especially in the us "due to the great interest that there was in knowing how the former countries of the soviet bloc would deal with the legacy of totalitarianism"3. thus, in the words of roht-arriaza, “the study of how societies emerging from periods of civil war or dictatorships deal with the legacies of the past became a full-fledged subject of academic inquiry and human rights activism during the 1990s” (roht-arriaza, 2006, p. 1). some authors have referred to three phases in the evolution of tj. teitel locates its origin in the first world war, but the three phases they mention are located in contemporary international law. these are summarized in the following figure (fig. 1): in these phases, the mention of what happened in la is missing. for the international center for transitional justice (ictj), the approach that we have today came about in the late 1980s and early 1990s, in response to political changes and demands for justice in this region and in eastern europe to face the great and serious systematic violations of human rights of the previous regimes, but without jeopardizing the political 2. a broad development on the origin and evolution can be found in: the international center for transitional justice. available at: https://www.ictj.org/es/que-es-la-justicia-transicional (accessed: 22 march 2021). see also (teitel, 2000). 3. idem https://www.ictj.org/es/que-es-la-justicia-transicional florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 303 figure 1 source: own elaboration based on (sersale di cerisano, 2013) and (teitel, 2003). transformations put in place. "given that these changes were popularly known as transitions to democracy," this new multidisciplinary field began to be called "transitional justice."4 aspects established by governments at that time have become basic approaches to tj, such as criminal prosecutions, truth commissions, reparation programs, a gender approach to justice, legal and institutional reforms, and commemoration initiatives.5 thus, many agree that since the mid-1980s there has been an interest in transitional justice linked to a series of political transitions from authoritarian to democratic regimes. as of that year, a wave of democratization spread throughout latin america marked by shouts of "never again”, demanding accountability for human rights abuses under authoritarian regimes in argentina, chile and elsewhere. the lesson of the latin american experience extended to democratic transitions in other parts of the world (williams, et al., 2012, p. 3). “accountability for past abuses among human rights activists was taken up at the international level, where the focus on political change as “transition to democracy” helped to legitimate those claims to justice that prioritized legality. institutional reforms and responses such as punishing leaders, vetting abusive security forces, and replacing state secrecy with truth and transparency on other claims to justice that we oriented toward social justice and redistribution” (paige, 2009, pp. 321-322). so much so that "in 4. available at: https://www.ictj.org/sites/default/files/ictj-global-transitional-justice-2009-spanish.pdf, p.1 (accessed 17 march 2020). along these lines, see (paige, 2009). 5. idem https://www.ictj.org/sites/default/files/ictj-global-transitional-justice-2009-spanish.pdf transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 304 central and south america, many countries began processes of change from systematic repression to greater openness and democratic participation."6 this contributed, what is more, to creating criminal proceedings, truth commissions, reparation policies and commemoration mechanisms, civil society and local human rights groups, exerting social pressure. on the other side of the atlantic, in eastern and central europe, governments developed initiatives linked to greater breadth of public debate, commemoration, opening of security files and the implementation of administrative notes known as "purging" or "disabling". these tj strategies emerged from the bottom up as a derivation of popular movements and in response to local experiences or demands.7 the truth is that the phases and what happened in al have been oriented to the protection of human beings, recognizing their status as victims and their dignity, redressing the consequences of the violations and punishing, where appropriate, those responsible for said violations. it was about rendering accounts of the past, an essential aspect for a peaceful coexistence, trying to overcome grudges and resentments, and for strengthening of the rule of law. in this process, it contributes to the development of human rights protection systems, which creates obligations for the states to recognize and guarantee human rights. the context in which the tj “paradigm” arises, according to de greiff, former truth and justice rapporteur, has two characteristics; first, the measures were applied in countries with relatively high degrees of both horizontal and vertical institutionalization, although this was not enough to prevent abuses. it was a breakdown of the institutionality and therefore part of the objective of the transition could be understood as the recovery of interrupted traditions and institutions; second, the measures were adopted in response to a certain type of violation, that is, those associated with the abusive exercise of power. this shows the deep connections between these two factors; only relatively institutionalized and efficient states can commit violations of a certain degree of magnitude, but above all, of systematicity” (de grieff, 2011, p. 17). likewise, this author characterizes the context in which the jt measures operate and points out that the term jt finds its natural place in “a very imperfect world”, understood as one in which there is no spontaneous generalized compliance with even a basic norm. furthermore, he states, “it is characterized not just by the massive and systematic violations of norms but also by the fact that there are huge and predictable costs associated with the very effort to enforce compliance. at the limit, in such a world, that effort puts at risk the very existence of the system that is trying to enforce its own norms”. this, according to what de grieff believes, is the main domain for application of the term transitional justice (de grieff, 2012, p. 35). 6. cfr. the chicago principles on transitional justice, a joint project of the ““international human rights law institute”, “chicago council on global affaire”, instituto superiore internazionale di scienze criminali” y la “association internationale de droit pénal”, dirigido por m. cheriff bassiouni, p. 8-9. available at: .https:// biblioteca.iidh-jurisprudencia.ac.cr/index.php/documentos-en-espanol/verdad-justicia-y-reparacion/1312los-principios-de-chicago-sobre-justicia-transicional/file (accessed 2 april 2021). 7. idem. https://biblioteca.iidh-jurisprudencia.ac.cr/index.php/documentos-en-espanol/verdad-justicia-y-reparacion/1312-los-principios-de-chicago-sobre-justicia-transicional/file https://biblioteca.iidh-jurisprudencia.ac.cr/index.php/documentos-en-espanol/verdad-justicia-y-reparacion/1312-los-principios-de-chicago-sobre-justicia-transicional/file https://biblioteca.iidh-jurisprudencia.ac.cr/index.php/documentos-en-espanol/verdad-justicia-y-reparacion/1312-los-principios-de-chicago-sobre-justicia-transicional/file florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 305 2.2. concept of transitional justice and its relationship with international human rights law however, pointing out that the term jt is itself a bit slippery, roht-arriaza defines it as the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” (rohtarriaza, 2006, p. 1). jeremy weber observes that transitional justice deals with situations in which a society goes from a state of injustice to justice, from an oppressive government to a government that respects the rule of law, from authoritarianism to democracy. it deals with the administration of justice through such a regime change. hence, its central questions: to what extent and according to what standards is it appropriate to judge the events that occurred during the previous regime? what kind of process, what forms of recovery from punishment, are appropriate in such circumstances (weber, 2012, p. 98)? the truth is that the jt seeks recognition of the dignity of people, the recognition of rights violations, justice, truth, reparation, and non-repetition. the tj and international law of human rights were both created almost in parallel, but the development of the international protection systems for human rights has been much faster. both human rights and international criminal law (icl) contribute to its consolidation. the application of the tj occurs after a dictatorship or armed conflict (colombian case)8, generally by the new authority or the transitional government through the adoption of new mechanisms or reactivating existing ones that were not applied during the dictatorship and / or conflict. however, as zalaquett pointed out, at the beginning, dealing with transitional political situations was a new part of human rights practice that raised some complex ethical, legal and practical questions. for the most part, zalaquett states, human rights organizations have entered this new area by applying, by extension, the normative standards and techniques they used when fighting current abuses by governments. this author wonders, among others questions, if a set of standards can be inferred from international norms and general legal principles, to be applicable to the problem of addressing past human rights abuses. under what circumstances, if there are any, can a government excuse itself from complying with such obligations on the grounds that it is not in its power to do so? and based on a generalized opinion of academics and professionals, it indicates that it must maximize the responsibilities of the new government. therefore, he says, the trend is: to emphasize the responsibility of governments, regardless of whether they actually have real power or are simply the holders of power; insist on the continuity of the state's obligations despite changes in government, especially with regard to the promotion and respect of human rights; argue that governments also have indirect responsibility when non-governmental groups commit abuses, to the extent that it is their duty to maintain order and enforce the law. this approach is, in principle, the correct one, insofar as it is based on the bias that any attempt to dilute the responsibility of the government could weaken the protection of human rights and the rule of international law (zalaquett, 1995, p. 3). 8. on jt in colombia see among others (guembe & olea, 2006). transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 306 progress in this regard in recent decades has been enormous. it is understood that it is the responsibility of government to assume past human rights violations by adopting the necessary mechanisms to clarify the facts. the mechanisms can be judicial, such as the creation of ad hoc tribunals to investigate and convict those responsible, or non-judicial ones, such as truth commissions, to investigate the facts, thus recognizing the rights of the forgotten victims during the period of the violations. it is the stage in which the state assumes the commitment to “heal the wounds” and seek reconciliation in society between “those who have injured and the injured”, it is to seek peace. it is about doing justice, seeking the truth, investigating the facts, and making amends to the victims. it is “a response to systematic or generalized human rights violations. its objective is to recognize the victims and promote initiatives for peace, reconciliation and democracy. it is not a special form of justice, but rather justice adapted to societies that transform themselves after a period of generalized violation of human rights. in some cases, these transformations happen from one moment to the next; in others, they can take place after many decades”9. de grieff points out that it is a set of measures that can be implemented to address the legacy of massive human rights abuses, where “addressing the legacy” means demonstrating the validity of human rights regulations that were systematically violated through criminal prosecution, the search for the truth, reparations and institutional reform (de grieff, 2011, p. 28). for this author, the tj that was created in practice and crystallized in the southern cone, in order to solve specific problems, has become a "universal tool" that apparently solves diverse problems, regardless of the context.10 in the words of dorado, it is a movement that in its beginnings was fed by the experiences of latin america and eastern europe and “that has been learning about new developments and incorporating the consideration and treatment of deeper and more complete conflicts such as those in rwanda, the former yugoslavia, east timor, sierra leone, democratic republic of the congo, colombia, etc. ”. the reality and challenges that tj processes must face have been changing, “introducing more complex situations that directly relate transitional justice mechanisms to peace and conflict resolution practices and the need to promote social and economic development, good governance or ways to include affected groups in the reconstruction process” (dorado, 2015, p. 193). along the same line as (schabas, 2006). the truth is that the ultimate goal of the tj is to promote justice, although it will depend, as de grief says, on the concept that justice is given. in sum, its three purposes are the recognition of victims, promoting civic trust and strengthening the norm of democratic law (de grieff, 2011, p. 28). 9. available at: https://www.ictj.org/sites/default/files/ictj-global-transitional-justice-2009-spanish.pdf, p.1 (accessed 17 march 2020) 10. idem, p.17. https://www.ictj.org/sites/default/files/ictj-global-transitional-justice-2009-spanish.pdf florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 307 2.3. characteristics of transitional justice 2.3.1. determination of victims and investigations after a dictatorship or armed conflict the end of dictatorships or conflicts or the transition to democracy do not automatically imply the beginning of the tj, nor is it immediate; it takes time and can take many years or even never happen. as roht-arriaza points out, in practice the "transition" may span many decades and may last longer for some issues than others (rohtarriaza, 2006, p. 1). for this reason, tj should not be limited to a formal approach since they are not sufficient to meet the needs of the victims and of society in general, “it should be thought of as a multifaceted and interdisciplinary whole, and the design should be carried out with social, cultural, historical and political sensitivity”. the measures must include judicial proceedings, truth commissions, reparations, investigation, sanctions and administrative measures, commemoration, education and archives and institutional reform (sersale di cerisano, 2013, p. 117). the reality and the particularities of the population in which it is applied must always be taken into account. the study of the context is essential, "the political, social and legal conditions of the country will determine what can be done and when", as well as cultural aspects and religious beliefs (kasapas, 2008, p. 59). creativity and innovation are not enough, but other important aspects, which increase the chances of success of the tj. rigid approaches and the to-do lists should be avoided11. a body should be created to carry out the pertinent investigations to find out the truth and identify the victims, and another to help and facilitate the lives of victims and those who live in difficult contexts. these bodies must meet the basic requirements such as knowing the context, reality, language, and empathizing with the population's problems. they must inspire confidence and independence in the population. it could be a truth commission or any other body whose purpose is to search for the truth and have a list of victims. mechanisms should be established to carry out the pertinent police and judicial investigations, with the corresponding guarantees, in order to avoid impunity. in addition, resources should be allocated to provide adequate health, social and economic care to the victims and / or their families. recognition by the state of what happened is relevant, as is recording for history what happened through collection of information from the past together with the necessary measures to vindicate the dignity of the victims, since it is in charge of assuming the events of the past and facing them in a way that guarantees reparation to the victims, focusing attention on the eradication of human suffering regardless of the reasons (wars or dictatorships) that have created the violation. nevertheless, there is no formula applicable to all cases, each case is unique, although taking into account its development, a common denominator can be established. the aspects that characterize the tj, among others, are the investigations to determine identification of the victims, and determination of responsibilities and reparations. always assuming there is no perfect solution, the limited scope of each of the measures that are part of a jt policy must be recognized, as de grief affirms, from the outset. “in fact, there is no transitional country that can legitimately claim great 11. https://www.ictj.org/es/que-es-la-justicia-transicional (accessed 17 march 2020) https://www.ictj.org/es/que-es-la-justicia-transicional transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 308 successes in this area. that is, there is no country that has undergone a transition that has prosecuted each and every perpetrator of human rights violations (let alone punished them in proportion to the gravity of the harm they caused); that has implemented a truthseeking strategy that disclosed the fate of each and every victim or thoroughly identified the structures that made the violations possible; that has established a reparations program providing each and every victim with benefits proportional to the harm he or she suffered; or that, particulary in the short run, has reformed each and every institutions that was implicated in the violations in question” (de grieff, 2012, p. 35). 2.3.2. establishment of mechanisms to alleviate the consequences of serious and systematic violations of human rights seen from practice the measures following the major human rights violations by the authority in power, to "heal the wounds of the past" and close the cycle, can be “oblivion” or measures to avoid impunity and recognizing the dignity of the victims. 2.3.2.1. mechanisms oriented to forgetting its objective is to close one stage and start another, under the slogan "blot and clean slate" and protected by impunity. these are the amnesty laws and prescriptions for those responsible for systematic violations, which have caused harm to direct and indirect victims of violations, preventing investigations of large and serious human rights violations in the world. today, fortunately, they do not fit in a democratic society because they are incompatible with the international law of human rights12. the consolidation of all the democracies in the world and the development of human rights allow the cases to be reactivated and removed from oblivion, to initiate an investigation (huntington, 1994, p. 263)13. according to the cijt, the tj describes different approaches in different places, not a coherent concept or practice”, then in the 1990s and 2000s new approaches and practices were born, based on the recognition of principles related to human rights where it was unthinkable to ignore their violation. mechanisms such as judicial processes, investigations (or “truth-clarification” initiatives), reparation programs and reform proposals were linked to this, which were considered the most effective in materializing that respect for human rights”14. today, in the midst of 2021, it is difficult to apply the mechanism of forgetting, a “blot and clean slate”here, international human right treaties and their development play an important role through the interpretation made by them, their bodies, judicial or not, as well as international actors, making the problem visible and pressing for the adoption of measures to repair the events of the past and avoid impunity by the state of transition. 12. fortunately, international human rights bodies have had the opportunity to pronounce that amnesties and human rights requirements are incompatible with the obligations of states to investigate human rights violations. (i/a court hr, 2011b), (un, human rights committee, 1992) cf. i/a court hr of human rights, among others, gelman v. uruguay, february 24, 2011, human rights committee, general comment no. 20, 44 period of sessions, 1992. 13. although "in 1990, approximately two-thirds of the countries of the world did not have democratic regimes." 14. https://www.ictj.org/es/que-es-la-justicia-transicional (accessed 17 march 2020) https://www.ictj.org/es/que-es-la-justicia-transicional florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 309 2.3.2.2. mechanisms aimed at remembering and claiming rights these may or may not be judicial, as we mentioned above, with a single purpose, to achieve justice, which involves recognizing the dignity of the victims and the fight against impunity. today, a large part of the world states have assumed the obligation to recognize, protect and guarantee human rights through the ratification of international rights, and in this context they are obliged to carry out the pertinent investigations to avoid impunity. according to mendez, in a few years there has been great progress regarding the recognition that serious and systematic violations generate obligations of the state towards the victims and society. however, considerable disagreements remain about the content of these obligations and how they should be fulfilled. for this author, the obligations are multifaceted and can be fulfilled separately, but in no case should they be seen as alternatives to one another. “the different obligations are not a menu from which the government can choose a solution; they are in fact different obligations, each of which must be fulfilled in accordance with the best possibilities available to the government. it considers judicial processes with all the guarantees essential in any serious effort to accountability” (méndez, 1997, pp. 255-256). faced with crimes against humanity, states must: “investigate, prosecute and punish the perpetrators; reveal to the victims, their families and the whole of society everything that can be reliably clarified about these events; offer the victims the reparations due; and separate the fully identified executioners from the security forces and other positions of authority”. their obligation to those who have acquired a specific right consisting of: the right of victims to receive justice, know the truth, receive compensation and other forms of non-monetary restitution, and the right to new, reorganized and responsible institutions. these are rights that not only benefit the victim, but also society as a whole (méndez, 1997, pp. 261-262) 2.4. recognition of transitional justice at the united nations the tj was incorporated into the united nations by the secretary general in 2004 through the report entitled "the rule of law and transitional justice in societies that suffer or have suffered conflicts" (united nations, general secretariat, 2004). it shows the interest of the un in addressing the issue and in the actions to be taken, highlighting the need to reach a common foundation for international norms and standards. it highlights the importance of commitment to and investing in justice, not resorting to mere formulas, which are the same for all, nor importing foreign models, but taking into account each reality, needs, aspirations and the participation of the countries themselves. in this process, the states play a fundamental role and, in this context, it is committed to promoting the technical capacity for reform, as well as the political will to implement it. it makes it clear that justice, peace and democracy are not mutually exclusive but rather imperatives that reinforce one another. for this reason, it considers it essential for achievement of these three objectives “a strategic planning, a careful integration and a sensible sequence of activities. it would be useless to focus exclusively on a certain institution or to dismiss civil society or victims. in the justice sector, we must pay full attention to all its interdependent institutions, take into account the needs of key groups transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 310 and not forget the need for transitional justice mechanisms to be complementary. our main role is not to create international mechanisms to replace national structures, but to help build national capacity in the field of justice”15. along the same lines, the security council in 2010 showed its position against impunity for the commission of serious violations of ihl and human rights standards, and advocated for the defense of accountability through the use of means, such as national, international and mixed criminal courts and tribunals, truth and reconciliation commissions, national reparation programs for victims, institutional reforms and traditional dispute resolution mechanisms. this affects the responsibility of the state to put an end to impunity and its obligation to “seek sustainable peace, justice, truth and reconciliation”16, as well as their willingness "to ensure that all un activities aimed at restoring peace and security respect and promote the rule of law". in 2005, the un general assembly approved the basic principles and guidelines on the right of victims of gross violations of international human rights standards and serious violations of ihl to file remedies and obtain reparations17. an instrument that focuses its attention on the rights of victims and the obligations of states18. in september 2011, the human rights council appointed, through resolution 18/7, a special rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition in order to deal with transitional situations of an authoritarian regime or from a conflict where there have been serious human rights violations and flagrant violations of ihl. today fabian salvioli is in charge. 2.5. the chicago principles on transitional justice taking into account what has happened in the world and the experiences of tj, in 2007 the “chicago principles on transitional justice” were adopted”19 that today play an important role in the adoption of public policies by states to deal with serious crimes and have been used in various transition processes20. although they are soft laws, they are important because they constitute parameters to be taken into account and a frame of reference regarding where to go. 15. cfr. https://undocs.org/es/s/2004/616, p.1 (accessed 17 march 2020) 16. https://undocs.org/es/s/prst/2010/11, p. 2 (accessed 19 march 2020) 17. https://undocs.org/es/a/res/60/147, 21 march 2006. 18. see also: report by diane orentlicher, independent expert charged with updating the set of principles for the fight against impunity updated set of principles for the protection and promotion of human rights through the fight against impunity, file:///c:/users/fquispe/downloads/e_cn.4_2004_88-es.pdf, of february 27, 2004. https://undocs.org/ pdf?symbol=es/e/cn.4/2005/102, of february 18, 2005. 19. this is a joint project of the “international human rights law institute”, “chicago council on global affairs”, istituto superiore internazionale di scienze criminali” andthe “association internationale de droit pénal”. 20. https://www.ictj.org/es/que-es-la-justicia-transicional. (last visit march 20, 2020) https://undocs.org/es/s/2004/616 https://undocs.org/es/s/prst/2010/11 https://undocs.org/es/a/res/60/147 https://undocs.org/pdf?symbol=es/e/cn.4/2005/102 https://undocs.org/pdf?symbol=es/e/cn.4/2005/102 https://www.ictj.org/es/que-es-la-justicia-transicional florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 311 3. transitional justice in the inter-american human rights system 3.1. brief reference to the creation of transitional justice in latin america and the inter-american human rights system as we have seen previously in the latin american region, unfortunately as a consequence of the great and serious violations of human rights, it has played an important role in the origin and development of the concept of transitional justice. argentina under the government of jorge videla, from 1976 to 1981, lived through a dictatorship, where human rights were violated, although the reorganization process lasted until december 5, 1983 because there were still military boards that were definitively dissolved on december 5, 1983. on december 15, 1983, argentina pioneered in the creation of the national commission on the disappearance of persons, known today as truth commissions, a characteristic feature of transitional justice, whose impact has source: own elaboration these principles are: transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 312 been long lasting at the global and regional level21. many agree on the contribution of this country to the development of the jt because it was often the instigator of new specific mechanisms and not a mere recipient of justice (sikkink & walling, 2006, p. 308). chile also learned about the consequences of the repression by augusto pinochet's military regime from september 1973 to march 1990. in april 1990, chilean president patricio aylwin also formed a national commission for truth and reconciliation (smith, 2009, p. 99)22. on the other side of the world, in south africa, after the serious consequences that the regime of racial segregation (apartheid) had for human beings, in 1995 the government of south africa created the truth and reconciliation commission. with this act, it publicly acknowledged past human rights violations for the first time23. given this background, later different types of commissions have been created more frequently. this is the case for el salvador, peru, haiti, guatemala, morocco, sierra leone, among others (hayner, 2006, p. 18) 24. in latin america and in other parts of the world, truth commissions have revealed the atrocities of the predecessor regime. today, these serious and great violations of human rights are not forgotten and the states face this problem, adopting political, economic and social measures aimed at the restoration of justice, reconciliation and the maintenance of peace. the truth commission emerged as an antidote to impunity and an analogue to amnesty. “throughout the americas -argentina, chile, el salvador, honduras, haiti and guatemalawherever the violence was massive in relation to the population, mitigating the possibility of criminal reprisals, the truth commission became a central mechanism for the possibility of political transition”25. this does not mean in any case that these commissions are perfect. hayner analyzes in detail more than twenty truth commissions created in different parts of the world, for which the great challenges and various problems that these commissions face are noted (hayner, 2008, p. 432). unfortunately, in many cases decades have elapsed for the state to accept the mistakes of the past and look to the future, recognizing rights. a large part of the violations of the 21. after the argentine truth commission, four other truth commissions were established before the end of the decade. during the 1990s, thirteen new truth commissions were created and sixteen truth commissions were inaugurated between 2000 and mid-2004, including the first truth commission in the middle east and north africa region (morocco 2004). cfr. sikkink, kathryn and walling booth, argentina´s contributions to global trends in transitional justice, p.301-324, p.308 in transitional justice in the twenty…, ob.cit. an extensive work on truth commissions can be seen at: kritz, neil, transitional justice, volume iii, laws, ruling, and reports, united state institute of peace press, washington, d.c. 1995. pp. 834. 22. however, their training was not intended to "gather ammunition for legal proceedings against army officers, but simply to document the truth and clear the air". 23. ventura, maría, reflections on the work of the south african truth and reconciliation commission, social sciences magazine, nueva época, no. 33, october 2012-march 2013, pp. 142-159; picker, ruth, the sessions of the south african truth and reconciliation commission perspectives from the victims, in right to memory, gomez isa, felipe (dir.), 2006, pp. 113-138. 24. see his work on truth commissions. 25. teitel, ruti g., transitional justice, 2000, oxford university press, 2000, p. 79. florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 313 seventies and eighties of the past century has been characterized by impunity and the neglect of the victims. let us not forget that impunity is the breeding ground for all violations. for many years and in different parts of the world it was affirmed from a pragmatist conception “that in transition situations it is necessary to accept large doses of impunity, to recognize the impossibility of prosecuting, judging and punishing the great perpetrators of human rights violations. and admit that the application of national or international justice is impossible”, and this was done in post-franco spain, in portugal, brazil, the countries of the southern cone of latin america, the philippines, countries in africa and the end of the civil wars in central america. this was due to the active participation during the negotiations of the members of the previous regime in the definition of power relations (cortés rodas, 2007, p. 65). since the end of the 20th century, there has been an almost generalized commitment to the establishment of democratic societies where respect for human rights and recognition of the victims prevail. the intention has been to build democratic societies that respond to the needs of the victims. to this, it contributes to the development of human rights protection systems and the development of international criminal law. the vast majority of these systems have bodies, judicial or not, that are aware of human rights violations and over the years they have spoken out about these violations. among them, there is what is known as the inter-american human rights system. the inter-american system is understood to be all the normative production on human rights that has been carried out by an initiative of the states within the framework of the organization of american states (oas) since 1948. added to this is the production through resolutions and judgments of the organs of the inter-american system for the protection of human rights, the commission and the inter-american court, created in 1959 and 1969, respectively (quispe remón, 2019, p. 34). many people who are under the jurisdiction of the states that are now part of the iahrs have suffered serious violations (chile, argentina, peru, colombia, etc.). the sidh was created with the adoption of the american declaration of the rights and duties of man in 1948 and is consolidated with the adoption of the american convention on human rights in 1969 (achr), a binding instrument that creates the commission and the inter-american court as organs of the system (quispe remón, 2010, pp. 297343), (quispe remón, 2019, pp. 34-73) . the inter-american court began its operation in 1978, almost in parallel with the great dictatorships in the latin american region. this means that said body did not have the support of all the states in the region26. at the end of the period of the dictatorships, 26. for example. argentina signed and ratified the american convention on human rights in february 1984, while chile signed the american convention in 1969, but only ratified it in october 1990; paraguay and uruguay signed the convention in 1969 but ratified it in august 1989 and march 1985, respectively; brazil signed and ratified in 1992. transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 314 the states have gradually joined the ihrs. today we find many pronouncements of the court on the violation of human rights that occurred in that period. although it is true that international law is not retroactive, the court resorted to continuing crimes to learn about the events that occurred, even prior to their existence, and to condemn the states (i/a court hr, 2006a) (i/a court hr, 2006b) (i/a court hr, 2011a). the court throughout its existence has always issued very progressive and pro homini judgments and advisory opinions. it is worth highlighting its resounding pronouncement, from the barrios altos case against peru (2001), on the inadmissibility of the amnesties27 pardons, prescriptions or other exclusion of responsibility whose objective is to prevent the investigation and punishment of those responsible for serious human rights violations (quispe remón, 2010, p. 359). however, in the mozote v. el salvador case (2012), it makes an exception, and performs an analysis of compatibility of the general amnesty law for the consolidation of peace with the international obligations of the achr in light of additional protocol ii to the geneva conventions of 1949. it is taken into account that it is a general amnesty law that refers to acts committed in the context of an internal armed conflict, and indicates that according to international humanitarian law, the issuance of amnesty laws for the cessation of hostilities in non-international armed conflicts to enable a return to peace” (i/a court hr, 2012a, 284-285 pars). since the castillo petruzzi v. peru case (1999) it has also been arguing that the military courts are not competent to hear cases on human rights violations in any case (quispe remón, 2010, pp. 379-386), inasmuch as, the court says, they are incompatible with the american convention. 3.2. the inter-american court and its development of transitional justice elements the protection bodies of the ihrs, the commission and the inter-american court have played and continue to play an important role in the development of the search for the truth and the recognition of the rights of the victims, essential elements of the tj. however, this article only focuses its attention on the role of the judicial organ of the interamerican system, the inter-american court28. 27. although this firmness over time has been relativized, in the case of el mozote. 28. the inter-american commission has repeatedly ruled on transitional justice. as an example, one of the latest actions can be cited. in 2019, it created the rapporteur ship on memory, truth and justice. in 2019, it adopted resolution 3/2019 in which it recognizes the 16 “principles on public policies on memory in the americas”: comprehensive approach to memory, participation of victims, involvement of civil society, suitability of persons in charge of memory policies, interdisciplinarity, intercultural approach and focus, regional integration, financing, design and implementation of memory initiatives, regulatory framework, identification and signaling, construction or recovery and preservation, sustainable management, creation or recovery, preservation and sustainable management, accessibility of state archives, restrictions on access to information in state archives. florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 315 in jurisprudence, we will not find an explicit reference to the term transitional justice, but a broad development on the elements or characteristics of transitional justice described in the first part of the work. the court, whose purpose is not to condemn the state, nor to assume its obligations, but to protect the rights recognized in the achr for individuals and to rule on the matter and, where appropriate, determine whether or not the state was responsible for the violation of the achr, issued its first judgment in the velásquez rodríguez case (i/a court hr, 1988) a decade after its operation. despite being the first sentence, it is, for the purposes of the tj, a valuable contribution because it establishes that all states parties have a legal duty to: adopt the necessary measures to reasonably prevent human rights violations; investigate in a responsible and serious manner with the means at its disposal the violations committed within the scope of its jurisdiction in order to identify those responsible; impose the pertinent sanctions on those responsible for the violations and guarantee adequate reparation for the victims (i/a court hr, 1988, para. 174). aspects that have been and are developed by states in transition stages. for the court, states have the obligation to respect the rights and freedoms recognized in the achr in such a way that any action or omission of any public authority that undermines human rights is attributable to the state (i/a court hr, 1988, para. 164). this implies the organization of the entire state apparatus and all the structures, through which public power manifests itself, so that they are capable of legally ensuring the free and full exercise of human rights. “as a consequence of this obligation, the states must prevent, investigate and punish any violation of the rights recognized by the convention and also seek the reestablishment, if possible, of the violated right and, where appropriate, the reparation of the damage caused by the violation of human rights” (i/a court hr, 1988, para. 164). for the court, it is a principle of international law that the state responds “for the acts of its agents carried out under their official status and for their omissions, even if they act outside the limits of their jurisdiction or in violation of domestic law”. (i/a court hr, 1988, para. 170). this principle is perfectly suited to the nature of the convention, which is violated in all situations in which public power is used to harm human rights recognized in it. otherwise, the protection system established in the convention would become illusory (i/a court hr, 1988, para. 171). the court says that the obligation to prevent, investigate and punish human rights violations does not end solely for actions of the public powers, but also for illegal acts that violate human rights that are not directly attributable to a state, "for example, because it was the work of an individual or because the perpetrator of the transgression was not identified, due to lack of due diligence to prevent the violation or treat it in accordance with the convention ”(i/a court hr, 1988, para. 172). thus, the obligation to investigate and to prevent is an obligation of means or behavior that is not breached just because the investigation does not have positive results. the state must do so seriously and not as a mere formality, condemned in advance to be unsuccessful. it must assume it as its own legal duty and not as a simple management of transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 316 private interests, "which depends on the procedural initiative of the victim or their next of kin or the private contribution of evidence, without the public authority actually searching for the truth”. "this assessment is valid regardless of the agent to whom the violation may eventually be attributed, even individuals, because, if their facts are not seriously investigated, they would be, in a certain way, aided by the public power, which would compromise international responsibility of the state” (i/a court hr, 1988, para. 177). in velásquez rodríguez, the court turns to the principle of international law of the identity or continuity of the state and affirms that the responsibility subsists regardless of changes of government over time and, specifically, between the moment in which the wrongful act is committed that generates responsibility and the one in which it is declared. this is valid, says the court, also in the field of human rights, although from an ethical or political point of view, the attitude of the new government is much more respectful of these rights than that of the government at the time when the violations occurred” (i/a court hr, 1988, para. 184). since then it has made reference to various concepts that today are developed as essential elements of tj. this is the case of the right to the truth that the victims and the victims' next of kin must obtain29, as well as the concept of victim that goes beyond the person who has directly suffered the violation of their human rights and the responsibility that the state has in the prevention and protection of human rights of all those who are under its jurisdiction. it makes it clear that the states are those most responsible for protecting and guaranteeing the effective exercise of the rights recognized in the achr to all people, they are in charge of not leaving the violation of human rights unpunished. it is also true that the court makes a broad interpretation of the achr, since from the literal text it is difficult to notice the developments that we find today in its decisions regarding elements of transitional justice such as the right to truth, reparations and its modalities or the extension and recognition of certain rights of the victims' next of kin, etc. 3.2.1. the next of kin of victims and their consideration as victims by the inter-american court the actions of the tj will always assume serious violations of human rights, which have left victims who have suffered "in their own flesh" the torture, disappearances, etc., (direct victims) and others who have suffered as a result of these violations, parents, children, etc. (indirect victims). the achr warns that the human rights recognized in it are for any person whose rights have been violated, and that once domestic remedies have been exhausted, it can activate the competence of the protection bodies. the person or group of people 29. a concept that is difficult to define, which arose at the national, regional and international levels and refers to the obligation of the states with respect to the victims, their next of kin and society as a whole to provide information on the circumstances in which the violations of human rights were committed. (naqvi, p., 2006) florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 317 whose rights have been violated are called victims. the achr does not classify victims as direct and indirect, but it follows that the rights embodied in it are for people whose rights have been directly violated. there is no concept of victim. in this context, the inter-american court, taking into account the reality of the region and the great violations of human rights, makes a broad interpretation of the achr and extends various human rights to the families of the victims. in the blake v. guatemala case, for the first time, it extends human rights recognized in the achr to the victims' next of kin, pointing out that article 8.1 of the achr, referring to judicial guarantees / due process, “must be interpreted in a broad manner so that said interpretation is based both on the literal text of that norm and on its spirit, and must be appreciated in accordance with article 29, paragraph c) of the convention, according to which no provision of the same can be interpreted with exclusion of the other rights and guarantees inherent to the human being or derived from the representative democratic form of government”(i/a court hr, 1998, para. 96). it concludes that article 8.1 also includes the right of the victim's next of kin to judicial guarantees, since “any act of forced disappearance removes the victim from the protection of the law and causes him serious suffering, the same than his family”. this right confers on mr. blake's next of kin the right to have his disappearance and death effectively investigated by the guatemalan authorities; to follow a process against those responsible for these crimes; that the pertinent sanctions be imposed on them, and that the damages suffered by said next of kin be compensated” (i/a court hr, 1998, para. 97)30. a year earlier, in the castillo páez case against peru, it had already been mentioned that it is the obligation of the state to investigate the facts, despite the internal order difficulties that may exist, until they are fully complied with, since “the right of the victim’s next of kin subsists to know what their fate was and, where appropriate, where their remains are found”31. added to this duty to investigate is that of preventing the possible commission of forced disappearances and punishing those responsible for them (i/a court hr, 1997, para. 90). it condemned the peruvian state for the violation of article 5 of the achr, to the detriment of mr. castillo páez and his next of kin, referring to the right to an effective recourse before the competent national judges or courts, the state having to make reparations for the consequences of the violations and compensate the victims’ next of kin. for the court, the violation of the mental and moral integrity of the next of kin is a direct consequence of forced disappearance, since it generates suffering and anguish, as well as a feeling of insecurity, frustration and impotence in the face of the abstention of the public authorities from investigating facts. in addition, in the blake case, it pointed out that the cremation of the mortal remains with the aim of destroying evidence that violated the cultural values inherited from generation to generation in guatemala, intensified the pain of the relatives. therefore, this suffering to the detriment of the mental and moral 30. this criterion has been reiterated in subsequent cases, among others, (i/a court hr, 1999); (i/a court hr, 2000a, para. 130); (i/a court hr, 2011b, para.187); (i/a court hr, 2005c, para. 63); (i/a court hr, 2011a, para. 120); (i/a court hr, 2012d, para. 199) 31. criterion that is later repeated, among others, in (i/a court hr, 2002, para. 114). transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 318 integrity of the family members constitutes a violation by the rule of law established in art. 5 of the achr (i/a court hr, 1998, para. 114-115).32 in many cases, it has ruled on the violation of this article to the detriment of the victims' next of kin. in the mapiripán massacre case, it stated that the victim’s relatives not only have had their physical and psychological integrity affected, but also their social and work relationships, and the dynamics of their families altered, and, in some cases, the life and personal integrity has been put at risk (i/a court hr, 2005a, para 212). for the court, the evidence in situations of serious violations is irrelevant, "no evidence is needed to demonstrate the serious effects on the mental and emotional integrity of the next of kin of the victims" (i/a court hr, 2005a, para. 212). in addition, given the circumstances of the case in which it was not possible to have more information on other relatives of the victims, it was considered reasonable "to presume that all of them, identified and unidentified, suffered the extreme circumstances of the massacre or its consequences" (i/a court hr, 2005a, para. 212). it declared all the next of kin (individualized or not) victims of the violation of the right to personal integrity. in the myrna mack chang case, it also considered the immediate family members victims of violation of personal, mental and moral integrity, due to the threats and harassment suffered since the beginning of the investigation of the extrajudicial execution, and the pattern of obstructions of the investigations through mechanisms that even affected justice operators (i/a court hr, 2003a, para. 232). in villagrán morales, it once again points out that victims of human rights violations or their family members must have “ample opportunities to be heard and act in the process projects, both in seeking to clarify the facts and punish the responsible parties, as well as seeking due reparation” (i/a court hr, 1999). it affects the suffering of mothers as a result of the negligence of the authorities who did not make adequate efforts to locate the families of the victims and notify them of the deaths in order to bury them33. the treatment given to the bodies of the victims (abandonment in an uninhabited area and exposure to inclement weather and the action of animals), which were sacred to their relatives, especially their mothers, was cruel and inhumane treatment. it links the continuous deprivation of the truth about the disappearance of the detainee with cruel, inhumane and degrading treatment for close relatives (i/a court hr, 2002, para. 114). although the court has mentioned family members in general, throughout its jurisprudence it has perfected and outlined this concept, incorporating guidelines from the jurisprudence of the european court of human rights (echr), which also considers family members as victims of human rights violations. in the bámaca velásquez case, it includes the elements that the echr establishes in the case of kurt v. turkey, of may 25, 1998. the echr ruled on the condition of victim of cruel, inhuman and degrading treatment of a mother 32. criterion reiterated in (i/a court hr, 2004a, 210-211 par.) in this case, the court also pronounces on the pain and uncertainty of the next of kin by not knowing the whereabouts and by not being able to honor their remains in accordance with their beliefs and customs (para. 212). 33. criterion that is reiterated in (i/a court hr, 2003c, para. 102) florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 319 whose son had been detained and disappeared, assessing the circumstances of the case, the seriousness of the mistreatment and the fact that she did not have official information to clarify the facts. it concluded by considering the mother as the victim and attributed to the state the violation of 3 of the european convention on human rights (echr) (i/a court hr, 2000b, para. 162). subsequently, the inter-american court refers to the cakici and timurtas cases, both against turkey, of 1999 and 2000, respectively, in which the echr mentions other elements, to be taken into account for the classification of victim, such as “the proximity of the family bond, the particular circumstances of the relationship with the victim, the degree to which the relative witnessed the events related to the disappearance, the way in which the relative became involved regarding attempts to obtain information about the disappearance of the victim and the response offered by the state to the proceedings initiated” (i/a court hr, 2000b, para. 163). thus, the court, assessing the circumstances of the case and taking into account the continuous obstruction of the family member's efforts to learn the truth of the facts, especially about the concealment of the body of bámaca velásquez, as well as the obstacles by the authorities to the exhumation attempts and the official refusal to provide the corresponding information, considered that the sufferings the family member was subjected to constituted cruel, inhuman and degrading treatment (articles 5.1 and 5.2 of the achr). added to this is the deep anguish of their next of kin for not knowing their whereabouts, which is why they are considered victims of the violation of article 5.1 and 5.2 of the achr (i/a court hr, 2000b, para. 165). in 2006, in the heliodo portugal case, it stated six criteria to determine the condition of victims of the violation of the right to mental and moral integrity due to the suffering they have suffered and due to the subsequent actions or omissions of the authorities in the face of the facts. these are: “1) existence of a close family bond; 2) the particular circumstances of the relationship with the victim; 3) the way in which the family member became involved in the search for justice; 4) the response offered by the state to the steps taken; 5) the context of a “regime that prevented free access to justice”, and 6) the permanent uncertainty in which the victim's next of kin were involved as a consequence of the ignorance of his whereabouts” (i/a court hr, 2008b, para. 163). knowing what happened to the disappeared person, the facts, the whereabouts of his mortal remains constitutes for the next of kin a measure of reparation, "and therefore an expectation that the state must satisfy the next of kin of the victim and society as a whole" (i/a court hr, 2002, para. 114)34. it is an act of justice and reparation in itself, to 34. along the same lines in (i/a court hr, 2014, para. 481) transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 320 deliver the mortal remains in the case of disappeared detainees. “it is an act of justice to know the whereabouts of the disappeared, and it is a form of reparation because it allows dignifying the victims, since the mortal remains of a person deserve to be treated with respect towards their relatives and in order that they can give him an adequate burial” (i/a court hr, 2002, para. 115). thus, it recognizes certain human rights to the families of the victims, such as the right to the truth. 3.2.2. the right of victims to the right to the truth according to the inter-american court the achr does not recognize the right to the truth as a human right, but given the context of the region, the court has been introducing this concept, especially in crimes related to forced disappearance, even pointing out that it is a right of the victims and their families35. already in its first sentence it refers to the obligation of the public authority to effectively seek the truth about the events that occurred (i/a court hr, 1988, para. 177). the state must satisfy the right of the victim's next of kin to know where he is and, if necessary, indicate the place of his remains (i/a court hr, 1988, para. 181). the court, taking into account the decisions of the human rights committee and the un human rights commission, in the bámaca velásquez case, recognizes that the right that everyone has to the truth has been developed by international human rights law (i/a court hr, 2000b, para. 76), and in the case of myrna mack chang, it held that “everyone, including the next of kin of victims of serious human rights violations, has the right to the truth (i/a court hr, 2003a, para. 274)36. the court does not consider that this right is an autonomous right set forth in articles 8, 13, 25 and 1.1 of the achr, but rather that it is a right “subsumed in the right of the victim or their next of kin to obtain from the competent organs of the state the clarification of the violating facts and the corresponding responsibilities, through the investigation and prosecution” (i/a court hr, 2005b, para. 62). it reiterates in its sentences the importance of knowing the truth about what happened on the part of the victim of serious human rights violations and their next of kin, to know the whereabouts of their remains and their recognition, since they can constitute an important means of reparation. for the court, the right to the truth is part of the right of access to justice, that is, it is framed within this right “as an expectation that the state must satisfy the victims of human rights violations and their next of kin and as a form of reparation (i/a court hr, 2006c, para. 219)37. therefore, in its jurisprudence it has analyzed the right to the truth within articles 8 and 25 of the convention, as well as in the chapter on other forms of 35. in the universal sphere, we find the antecedent to this right in resolution 9/11 of september 24, 2008. human rights council. the right to the truth, a / hrc / res / 9/11. 36. along the same lines, among others, in (i/a court hr, 2002, para. 114); (i/a court hr, 2004b, para. 81); (i/a court hr, 2004a, para. 26); (i/a court hr, 2004c, para. 230); (i/a court hr, 2004d, para. 257); (i/a court hr, 2004e, para. 97); (i/a court hr, 2004f, para. 128); (i/a court hr, 2005c, para. 62). 37. along the same lines in (i/a court hr, 2009, para. 118); (i/a court hr, 2010, para. 201) florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 321 reparation” (i/a court hr, 2006c, para. 219). the truth is subsumed in the right of the victim or his next of kin to obtain from the competent organs of the state the clarification of the violating facts and the corresponding responsibilities, through the investigation and prosecution that articles 8 and 25 of the achr provide (i/a court hr, 2007, para. 147). the power to access justice must ensure in a reasonable time that the victims and their next of kin know the truth of what happened, ensure an investigation, prosecution, and, where appropriate, the punishment of those responsible (i/a court hr, 2003b, para. 114) (i/a court hr, 2006d, para. 382)38. it has linked the right to know the truth "with the ordinary action filed by the next of kin, which is linked to access to justice and the right to seek and receive information enshrined in article 13 of the american convention" (i/a court hr, 2010, para. 201). for the court, the right to the truth is part of access to justice and is broad in nature, the violation of which may affect various rights recognized in the achr depending on the context and circumstances of the case (i/a court hr, 2015, para. 265). the court has adopted decisions on the basis of noting the existence of rights such as the right to truth or the right to water based on the content of others that arise from applicable conventional texts (i/a court hr, 2020b, para. 211). in the gudiel álvarez case, the court relies on the opinion of the united nations regarding the importance of determining the truth regarding human rights violations for the consolidation of peace and reconciliation, an argument that finds support in ihl that recognizes that the next of kin have the right to know the truth about the fate of the disappeared victims, including victims of forced disappearances, both in international and non-international armed conflicts (i/a court hr, 2012b, para. 299)39. for the court, not knowing the truth about the fate of a disappeared person constitutes a form of cruel and inhumane treatment for close relatives (i/a court hr, 2011b, para. 133). in a democratic society, the truth about the serious human rights violations that occurred must be made known, since this constitutes a just expectation that the state must satisfy (i/a court hr, 2012c, para. 194). the inherent obligations of the right to the truth in cases of serious human rights violations require the adoption of institutional designs that allow this right to be carried out in the most suitable, participatory and complete way possible and not face legal or practical obstacles that make it illusory. the court emphasizes that the satisfaction of the collective dimension of the right to the truth requires the determination of the most complete possible historical truth, which includes the judicial determination of the patterns of joint action and all the persons who in various ways participated in violations and their responsibilities (i/a court hr, 2007, para. 195)40. 38. along the same lines in the case (i/a court hr, 2012c, para. 191); and recently in (i/a court hr, 2020a, para. 173) 39. along the same lines in (i/a court hr, 2015, para. 262). the recognition within the un, through its various human rights protection bodies, of the victims' right to the truth is highlighted. an imprescriptible truth. 40. along the same lines in (i/a court hr, 2008c, para. 102) and in (i/a court hr, 2008a, para. 454) transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 322 4. final reflections unfortunately, the world has experienced innumerable and grave human rights violations over the past centuries. many of these events have gone unnoticed by the governments that came after violations by the previous regime, despite their gravity . in many cases, precisely in order not to activate or carry out investigations in the future and to leave violations unpunished, amnesty laws have been adopted, avoiding giving answers about the facts and events to the direct and indirect victims, who probably still suffer from the absence or the disappearance of their loved ones for which there was no action by the state. in this context, the concept of transitional justice arises in order to avoid impunity, recognize the dignity of the victims, the right to know, to know the truth about what happened and that someone in the name of the state assumes that responsibility and makes reparation for the damages. after all, representing a state implies assuming the good and the bad. it is a step aimed at healing wounds where the state plays the leading role, paving the way, adopting the necessary mechanisms to avoid forgetting the great and serious violations of human rights. this involves the adoption of judicial mechanisms that facilitate access to justice for vulnerable groups, taking into account, if applicable, their needs; that they are in charge of investigating, punishing and condemning those responsible for human rights violations, or non-judicial ones, such as the establishment of suitable bodies, in charge of gathering information about the victims and the facts, leaving a record of what happened, always knowing the reality of the victims and empathizing with them; as well as the appointment of truth commissions, whose members must be suitably equipped to carry out said work, and their composition must take into account the knowledge of the reality of the victims and their needs and their idiosyncrasies. the ultimate goal of tj is to obtain justice, understood as giving everyone what is their due. it is the obligation of the state at this stage to regain the trust of the population through proven institutions. the development of international human rights law through international systems for the protection of human rights, whether at the universal or regional level, constitutes a retaining wall against impunity and represents a space of hope for the victims. human rights constitute a limit to the absolute will of the states in the past and an obligation to guarantee and protect the rights of all persons under their jurisdiction. in this context, the bodies for the protection of human rights play an important role, especially the interamerican court, which has been developing a broad interpretation of the american convention to protect the victims and recognize certain human rights, such as the right to the truth and to the right to reparation, among others, linked to other rights, although their pronouncements have not been framed in transition processes. this allows victims to activate the jurisdiction of international bodies on the one hand and, specifically of the inter-american system, on the other, the obligation of the state to comply with the decisions emanating from the inter-american court, applying the conventionality control that the court requires of the states that have assumed its contentious jurisdiction. undoubtedly, thanks to the application of transitional justice and according to the realities, we will be able to speak of a reconciled society, where respect for the human florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 323 rights of the victims is a priority, 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de costa rica: i/a court hr. i/a court hr, 2008c. caso valle jaramillo y otros vs. colombia, san josé de costa rica: i/a court hr. i/a court hr, 2009. caso anzualdo castro vs. perú, san josé de costa rica: i/a court hr. i/a court hr, 2010. caso gomes lund y otros (“guerrilha do araguaja) vs. brasil, san josé de costa rica: i/a court hr. i/a court hr, 2011a. caso barbini duarte y otros vs. uruguay, san josé de costa rica: i/a court hr. i/a court hr, 2011b. caso gelman vs. uruguay, san josé de costa rica: i/a court hr. i/a court hr, 2012a. caso masacre de el mozote y lugares aledaños vs. el salvador, san josé de costa rica: i/a court hr. i/a court hr, 2012b. caso gudiel álvarez y otros (“diario militar”) vs. guatemala, san josé de costa rica: i/a court hr. i/a court hr, 2012c. caso masacre de río negro vs. guatemala, san josé de costa rica: i/a court hr. i/a court hr, 2012d. caso nadage dorzema y otros vs. república dominicana, san josé de costa rica: i/a court hr. i/a court hr, 2014. caso rodríguez vera y otros (desaparecidos del palacio de justicia) vs. colombia, san josé de costa rica: i/a court hr. i/a court hr, 2015. caso comunidad campesina de santa bárbara vs. perú, san josé de costa rica: i/a court hr. i/a court hr, 2020a. caso azul rojas marín y otra vs. perú, san josé de costa rica: i/a court hr. i/a court hr, 2020b. caso comunidades indígenas miembros de la asociación lhaka honhat (nuestra tierra) vs. argentina, san josé de costa rica: i/a court hr. kasapas, g., 2008. an introduccion to the concept of transitional justice: wester balcans and ue conditional. unision disscusion papers, issue 18, pp. 59-76. méndez, j., 1997. accountability for past abuses. human rights quarterly, 19(2), pp. 255-282. hyperlink "https://doi.org/10.1353/hrq.1997.0018" \t "_blank" https://doi.org/10.1353/hrq.1997.0018 naqvi, p., 2006. el derecho a la verdad en el derecho internacional: ¿ficción o realidad?. international review of the red cross, issue 862. o'donnelll, g. & schemitter, p., 2003 spring. transitions from authoritarian rule: tentative cinclusions about uncertain democracies in transitional justice geneology. harvard human rights journal, volume 16, p. 69. https://doi.org/10.1353/hrq.1997.0018 https://doi.org/10.1353/hrq.1997.0018 transitional justice, victims and human rights in the light of international law and the inter-american system of human rights the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 326 paige, a., 2009. how "transitions" reshaped human rights: a conceptual history of transitionl justice. human rights quaterly, 31(2), pp. 321-376. hyperlink "https://doi.org/10.1353/hrq.0.0069" \t "_blank" https://doi.org/10.1353/ hrq.0.0069 pion-berlin, d., 1995. to prosecute or to pardon? humans right decision in the latin amercican souther cone. in: n. kritz, ed. transitional justice. volumen i general consideration. washington dc: united states institute of peace press, pp. 82-103. quispe remón, f., 2010. el debido proceso en el derecho internacional y en el sitema interamericano. valencia: tirant lo blanch. quispe remón, f., 2019. los derecho humanos en el sistema interamericano. valencia: tirant lo blanch. roht-arriaza, n., 2006. the new landscape of transitional justice. in: n. rohtarriaza & j. mariezcurrena, eds. transitional justice in the twenty-first century. beyond truth versus justice. cambridge: cambridge university press, pp. 1-16. hyperlink "https://doi.org/10.1017/cbo9780511617911.001" \t "_blank" https://doi.org/10.1017/cbo9780511617911.001 schabas, w., 2006. the sierra leona truth and reconcilation commission. in: n. roht-arriaza & j. mariezcurrena, eds. transitional justice in the twenty-first century. beyond truth versus justice. cambridge: cambridge university press, pp. 21-42. hyperlink "https://doi.org/10.1017/cbo9780511617911.003" \t "_blank" https://doi.org/10.1017/cbo9780511617911.003 sersale di cerisano, f., 2013. justicia 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s.n. un, human right committe, 1992. observacion general nº 20, 44 período de sesiones, ginebra: s.n. https://doi.org/10.1353/hrq.0.0069 https://doi.org/10.1353/hrq.0.0069 https://doi.org/10.1353/hrq.0.0069 https://doi.org/10.1017/cbo9780511617911.001 https://doi.org/10.1017/cbo9780511617911.001 https://doi.org/10.1017/cbo9780511617911.003 https://doi.org/10.1017/cbo9780511617911.003 https://doi.org/10.1017/cbo9780511617911.015 https://doi.org/10.1017/cbo9780511617911.015 https://doi.org/10.1017/cbo9780511617911.015 https://doi.org/10.1017/cbo9780511617911.015 https://doi.org/10.2307/j.ctv10rrb5z https://doi.org/10.2307/j.ctv10rrb5z https://doi.org/10.2307/j.ctv10rrb5z florabel quispe remón the age of human rights journal, 17 (december 2021) pp. 300-327 issn: 2340-9592 doi: 10.17561/tahrj.v17.6440 327 weber, j., 2012. forms of transitional justice. in: transitional justice. new york: new york university press. williams, m., nagy, r. & elster, j., 2012. transitional justice. new york: new york university press. zalaquett, p., 1995. confronting human rights violations commited by former goverments: principles and political constraints. in: n. kritz, ed. transitional justice. volumen i general considerations. washington dc: united states institute of peace press, pp. 3-31. received: june 22nd 2021 accepted: october 19th 2021 transitional justice, victims and human rights in the light of international law and the inter-am abstract 1. introduction 2. origin and evolution of transitional justice in international law 2.1. background and development of transitional justice 2.2. concept of transitional justice and its relationship with international human rights law 2.3. characteristics of transitional justice 2.3.1. determination of victims and investigations after a dictatorship or armed conflict 2.3.2. establishment of mechanisms to alleviate the consequences of serious and systematic violatio 2.3.2.1. mechanisms oriented to forgetting 2.3.2.2. mechanisms aimed at remembering and claiming rights 2.4. recognition of transitional justice at the united nations 2.5. the chicago principles on transitional justice 3. transitional justice in the inter-american human rights system 3.1. brief reference to the creation of transitional justice in latin america and the inter-america 3.2. the inter-american court and its development of transitional justice elements 3.2.1. the next of kin of victims and their consideration as victims by the inter-american court 3.2.2. the right of victims to the right to the truth according to the inter-american court 4. final reflections 5. bibliography the contextual dependence in the interpretation of constitutional rights: an analysis from the point of view of the post-neopositivist epistemology the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 257 the contextual dependence in the interpretation of constitutional rights: an analysis from the point of view of the post-neopositivist epistemology michele zezza* abstract. the analysis aims to reflect on how the external context conditions the legal interpretation of the constitutional provisions that recognize fundamental rights. to this end, some methodological indications from the field of philosophy of language are adopted, implicitly defending the possibility of a transposition, not mechanical and uncritical but analogical, of some essential acquisitions of semantic holism. keywords: normative indeterminacy, constitutional rights, constitutional interpretation, semantic holism, external context, post-neopositivist epistemology. summary: 1. introduction. 2. the intentional vagueness of the constitution: the two poles of the theoretical debate. 3. a hypothesis of analogical transposition. 3.1. the “canonical” distinction between sense and reference. 3.2. semantic holism and the contextual dependence of sense. 3.2.1. the abandonment of the synthetic-analytical dichotomy in w.v.o. quine’s perspective. 3.2.2. the thought experiment of the radical translation and the principle of charity in donald davidson’s perspective. 3.3. some contextualists research programs: two examples. 3.4. the role of context in the legal interpretation of constitutional rights. 3.5. moral reading of constitution and reflexive equilibrium. 4. conclusions. 1. introduction this study intends to defend the thesis according to which both in the doctrinal reconstruction1 and in the judicial interpretation of a system of constitutionally recognized rights, and more particularly of ethical-political doctrines that they incorporate, operate substantial criteria of rationality. these criteria – it is argued – lead to formulating, also on the basis of the reference to personal convictions as well as conceptual background 1 i take up the notion of “reconstruction of a doctrine” from bruno celano (“[l]a ricostruzione di una dottrina […] consiste nella riformulazione, e nel riaggiustamento, di insiemi di enunciati, selezionati entro insiemi di testi (scritti e non) dai contorni indefiniti. riformulazione e riaggiustamento mirano alla ristrutturazione, alla sistematizzazione, degli insiemi di enunciati rilevanti: vengono individuati, o ricavati, assunti, principi, presupposti, tesi, che si ritiene siano atti a rendere conto di aspetti significativi della dottrina”). * postdoctoral researcher in the department of direito do estado of the universidade de são paulo (usp), visiting researcher at the université de genève (unige), doctor europaeus at the università di pisa and the universidad de sevilla, magister in derechos fundamentales at the universidad carlos iii de madrid, spain (michele.zezza@for.unipi.it); orcid: https://orcid.org/0000-0002-4323-9850. the present work has been founded by the fundação de amparo à pesquisa do estado de são paulo (fapesp), with the following process number: 2017/24035-9. mailto:michele.zezza@for.unipi.it https://orcid.org/0000-0002-4323-9850 the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 258 schemes, a globally coherent interpretation of the constitutional text (and especially of his substantive part), attributing to the discursive level an internal connection such that the contradictions, if they arise, are in any case limited. to this end, it is mantained that a post-neopositivist theory of meaning is more or less implicitly presupposed in this operation. the paper also shows that semantic indeterminacy reflects the holistic character of meaning and of belief, considering that the interpretation of discourse (of the uttered proposition) is widely influenced by the common ground that exists between speaker and hearer. in particular, the following insights are taken up: (1) the abandonment of the analytic-synthetic dichotomy; (2) the thought experiment of the “radical translation”; (3) the principle of charity and the correlative thesis of the “background” of meaning. we will try to show, in this sense, that these assumptions can concretely contribute to illuminating several notable aspects that characterize the functioning of interpretative practices within a constitutionalized legal context. in this regard, we will focus above all on the prominence given to the conditioning exerted by the interpretive context with the aim of highlighting the structurally indeterminate character of the translation and more generally of the interpretation. in considering the philosophical-linguistic debate, of course, it is not intended to exhaustively reconstruct the research programs identified, but only to highlight some ideas potentially applicable to the field of constitutional interpretation. in the first section i compare two models of constitutional drafting, the broad one and the detailed one, illustrating the main reasons for the impracticability of this last solution. then i try to apply some essential categories of semantic holism and of contextualist approach to the constitutional interpretation of rights. i conclude with some observations on the semantic presuppositions implicit in the moral reading of the constitutional text and in the search for a reflexive equilibrium between our immediate intuitions and the more consolidated ethical-juridical principles. 2. the intentional vagueness of the constitution: the two poles of the theoretical debate according to the authoritative reconstruction of h.l.a. hart, all terms (e.g., class nouns or adjectives) have a fixed meaning core in which indeterminacy is minimal because there is a generalized consensus about their inclusion (or exclusion) in the extensionality of the term (the set of objects, events, states of affairs to which it applies), and a “penumbra area” defined by difficult or doubtful cases.2 with respect to such a zone, the interpreter has a certain space for discretion because the reference of the terms used is not completely determined (the classical example: the adjective ‘bald’). in chapter vii of the concept of law entitled “formalism and rule-skepticism” and dedicated to legal interpretation, the author makes the following observation using the example of the linguistic expression “no vehicles in the park”: 2 in this regard, endicott (1997) points out that, contrary to what hart seems to believe, on many occasions it can be controversial to determine whether a given case falls within the core of certainty or the penumbra zone. michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 259 in all fields of experience, not only that of rules, there is a limit, inherent in the nature of language, to the guidance which general language can provide. there will indeed be plain cases constantly recurring in similar contexts to which general expressions are clearly applicable (‘if anything is a vehicle a motor-car is one’) but there will also be cases where it is not clear whether they apply or not. (‘does “vehicle” used here include bicycles, airplanes, roller skates?’) (hart 1994, p. 126).3 according to hart, similar remarks can be applied to legal language4, since it is closely related to ordinary language. interpretation is sometimes the result of a cognitive process and sometimes the product of a discretionary decision: it discovers meanings in easy cases and creates meanings in difficult cases. therefore, in formulating general rules, the legislator is not expected to foresee every possible combination of circumstances that may occur in the future. for every general rule there can always be some factual situation in which the question of whether or not a specific concrete case falls within the scope of application of the rule to be applied, if any, cannot be resolved on the basis of linguistic conventions or customary rules of interpretation. in the presence of a situation of uncertainty, when faced with flexible general rules, it is necessary to choose between different theoretically possible interpretations to determine the actual content of the normative statements. in this regard, hart explicitly speaks of the “open structure (or texture)” (hart 1994, ch. vii) of the legal language to refer to phenomena such as the incompatibility of norms, the possibility of departing from the law, the presence of hard cases, and so on. the development of this notion is due to friedrich waismann (1945), who, taking up some ideas developed by ludwig wittgenstein in particular in §80 of the philosophical investigations, in an article on verifiability analyses the possibility that all empirical statements are characterized by a structural vagueness. within the philosophical-legal debate, and indeed also in hart’s intentions, the reference to an open texture tends to reinforce the idea that vagueness5 represents an inevitable characteristic of the legal language. 3 for an in-depth discussion (in a critical vein) of this example, see schauer (2009, pp. 151-158), who notes that often the most significant interpretive problems come not from textual or lexical difficulties inherent in the arrangement of the utterance, but from value or teleological reasons attributable to a choice of the interpreter. 4 for a framing of the topic of legal language indeterminacy, see bix (1993). 5 on an analytical level, it is possible (and appropriate) to distinguish the vagueness of the meaning of normative texts from their indeterminacy, i.e., the fact that each normative text potentially expresses a plurality of alternative meanings: “mentre la vaghezza è dovuta all’indeterminatezza dei criteri di applicazione di un termine, l’indeterminatezza di un termine valutativo è dovuta al carattere effettivamente o potenzialmente controverso dei suoi criteri di applicazione” (diciotti 1999, p. 377). a vague term, therefore, is not semantically indeterminate but rather unknowable (in the absence of cognitive resources to determine its content in borderline cases). we are faced with vague terms if there are predicates whose application is imprecise since there are “border cases” in which it is not possible to define exactly where the concept in question begins to/stops being applicable. in this regard see also williamson (1994). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 260 a relevant characteristic of constitutional drafting is the peculiar form of intentional indeterminacy particularly found in gaps, which is present in all those cases in which the authors of the provision, due to the absence of empirical information about the future, cannot regulate in detail the modalities and contents of its application.6 in the case of the italian context, for example, it is evident that it in the post-war period nanotechnology, the internet, or the structure of dna could not be empirically known, but, likewise, neither could be the future evolution of religious practices. this configuration of the constitutional language is not accidental; rather, it is a systemic aspect concerning its peculiar mode of drafting. within a substantive legal culture model (a context characterized by the presence of interpretative and argumentative styles that enhance the moral profiles related to the “justice” of the particular case), the constitutional provisions conferring fundamental rights and their limitations are usually formulated through a wide use of evaluative expressions or locutions (“equal social dignity”) and indeterminate expressions (“right to health”, “right to life”, “family as a natural society”, etc.). constitutional texts recognize values that tend to be formulated broadly and generically so that their meaning may later be specified when applied. this raises the problem of determining the content of the notions connoted by the evaluative expressions recognizing these rights. this margin of discretion conferred to the judge in his interpretative activity does not necessarily have to equate with rule-less arbitrariness.7 in fact, there are some constraints, such as, for example, the argumentative techniques accredited in the legal culture of reference and with respect to which the interpretative activity must be consistent in some way. similar constrains derive from certain institutional and legislative factors, the communis opinio or the generalized consensus of the community of interpreters, the opinions of legal experts or technicians eventually consulted8, case-law precedents, among others. these “guiding principles”, which cannot be traced back to a moral reasoning devoid of any connection with legal procedures, can operate as an important factor in narrowing down the margin of discretion involved in the interpretative activity of the judges. 6 although it is not part of the purpose of this research, it is evident that the indeterminacy of constitutional provisions also relates to the political disagreement of constituent fathers to reach precise agreements. see on this point, sunstein (1996, pp. 35-61), who refers to two different types of partially and “incompletely theorized” agreements: the first concerns the constituents, who have to formulate principles characterized by a high degree of generality; the second may occur among the constituents but, most often, develops between the legislators, since they have to ponder and specify the content of the constitutional provisions. 7 it is indeed a controversial point, on which there is a heated contrast between theorists of formalist and substantialist orientation. for some excellent reconstructions of the legal debate, see especially waluchow (1994, ch. 7); stone sweet (2000); shapiro, stone sweet (2002); koopmans (2003); hirschl (2004); blichner, molander (2008). 8 on this topic see canale (2021) (“a legal text, such as a statute or a regulation, is opaque if a legal authority is not able to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’s opinion, in legal decision-making. when this occurs, not only do experts contribute to fact-finding but also to determining the content of the law”; ibid., pp. 1-2). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 261 therefore, in most cases, the constitutional provisions conferring fundamental rights possess an “open” and partially unpredictable scope of applicability. in this regard, luis prieto sanchís outlines with particular clarity and devoid of any ideological compromise in favour of the thesis in question the opposite hypothesis, which is based on the strict delimitation of the contents of the constitutional clauses: [s]ince the constitution is a norm and a norm that is present in all types of conflicts, constitutionalism leads to judicial omnipotence. this would not be the case if the constitution had as its sole object the regulation of the sources of law or, at most, just established a few precise fundamental rights. in such a case, the constitutional norm and, consequently, its judicial guarantee would only come into play when some condition for normative production was violated or when some of the areas of guaranteed immunity were constrained (prieto sanchís 2001, p. 208, my translation). a normative inclination in favour of this thesis is instead present, for example, in the approach of luigi ferrajoli. this author insists on the opportunity to adopt a style of constitutional drafting (and interpretation) centred on a need of semantic rigor: “as regards the textual formulation of the constitutional provisions – he writes – the conception of the constitution as a limit, or according to the model of the rules, requires that the constitutional text be formulated by resorting to statements and linguistic formulas which are clear, precise, and codifying rights with a well-defined scope” (ferrajoli 2010, p. 2815).9 even before ferrajoli, at the end of the 1920s, hans kelsen (2011) was already defending a model of constitutional language in which, at the risk of displacing the normative powers from the parliament to an organ not politically responsible, the provisions attributing fundamental rights were not formulated in excessively abstract and generic terms, excluding vague and emotionally loaded concepts as far as possible. the main purpose here is to warn against the danger that the inclusion of open material provisions could encourage a transfer of regulatory powers from the legislature to the courts, follow a logic incompatible with the principle of separation of powers. it should be noted that such a model of constitutional language contrasts radically with the practice of rights management within the current constitutional landscape. although it largely depends on how burdensomeness the corresponding revision process may be, there is no doubt that contemporary constitutions are often drafted with a longterm duration intention. within them, the conditions of application of the constitutional provisions are hardly (cannot be) determined with accuracy to be able to channel future developments. in fact, a constitutional drafting technique which aspired to eliminate any margin of uncertainty, perhaps by resorting to a closed and rigorous list of rights, would end up condemning the constitution to a rapid obsolescence, due to the changing economic, social, political, demographic conditions, etc. in this regard, one can consider the reasoning 9 see also ferrajoli (2016, pp. 173 ff.). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 262 of victor ferreres comella, who, reflecting on the problem of the need for precision in the constitutional text, observes: [t]he detailed constitution entails the unjustifiable binding of the present and future generations to the decisions of a generation already dead; it does not allow for new ethical demands derived from aspects of human freedom and dignity that are not contemplated in its specific open clauses; and it hinders the development of interpretative processes that make it possible to politically integrate the members of a plural society, as well as diverse states, within a common public culture based on shared values (ferreres comella 1997, p. 138, my translation). the argumentation of the spanish constitutionalist clearly shows the asymmetry existing between the prescriptive model of a “constitución de detalle” (detailed constitution) – which aspires to crystallize constitutional values and principles in an immutable hierarchical web – and the practice of interpretation and application of constitutional provisions. according to this author, this peculiar drafting technique can foster a debate, within parliamentary majorities, on the meaning of constitutional rights and their relationships as they adapt to the circumstances of specific cases of application. similarly, michel fromont argues in favour of the greater degree of “démocraticité” (democratic character) of the constitutional rights and principles codified in contemporary constitutions, due to the more stable consensus that may be generated on them compared to the provisional agreement of a given electoral moment. “the judge who interprets the constitution and imposes upon the other government bodies the respect of the rules contained in the constitutional text expresses somehow an older or broader democratic legitimacy which is not destined to fluctuate as rapidly as that of the main political organs of the state”.10 from this perspective, the very indeterminacy of the constitutional provisions which confer fundamental rights can constitute a factor of vitality of the constitutional text, a means of ensuring that the legal system is flexible in the face of the inevitable modification of the social context (diachronic level) and of the demands of justice of the concrete case (synchronic level). this updating task should be carried out based upon changes related to linguistic conventions and the set of values, interests, and moral needs of every specific community. in analysing these approaches, it is necessary to highlight a basic problem. they tend to cast an optimistically irenic vision of the process of concretization of constitutional provisions. they thus neglect how these constitutional drafting techniques can represent one of the main causes of conflict between the legislator and the judiciary. in the context of contemporary constitutionalism, a large part of legal disputes may in fact be somehow based on some of the substantive contents of the constitution, this phenomenon frequently 10 fromont (1996, p. 132, my translation). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 263 being the origin of interpretative conflicts. although it is undeniable that, in certain circumstances, the consideration of extra-linguistic factors can contribute to facilitate the application of obscurely formulated norms11, there are, however, some deeper reasons which should at least lead to an attitude of caution in the face of the judiciary’s tendency to interpret constitutional provisions based on a global consideration of the external context (in whatever way one conceives it). for explanatory purposes, it may be appropriate to revisit some remarks drawn from the scope of the semantic holism approach. 3. a hypothesis of analogical transposition 3.1. the “canonical” distinction between sense and reference adopting a canonical distinction within the philosophy of language, we can assume that meaning contains two dimensions: sense or intension – which represents the intralinguistic component of meaning – and reference or extension – that is, the relation of the word to the object it denotes.12 the most complete elaboration of this distinction, as it is known, goes back to friedrich ludwig gottlob frege (1948) in his famous essay über sinn und bedeutung.13 discussing the concept of identity, the author develops an analysis of conceptual or informational content that affects all categories of linguistic expressions: singular terms, predicates, and utterances. without delving into the complexity of fregean analysis, let it suffice to note that it establishes a basic separation between: (i) the sign or linguistic expression; (ii) the sense, or mode of presentation of the object; (iii) the reference or extension, i.e., the object itself. in a very schematic way: the sphere of reference refers to the relationship between language and the extralinguistic reality, i.e., the external world; instead, the sphere of sense includes the contents that speakers are able to associate with the expressions they use to understand and use language. the reference of a singular term is constituted by the object denoted, while the sense points to the way in which this object is presented; the reference of an utterance coincides with its truth-value, while its sense is the very thought expressed by it. the latter dimension, insofar as it may be (i) expressed in a language, and (ii) grasped and shared by all individuals, should not be confused with its subjective and intra-psychic representation (vorstellung), i.e., the mental image that speakers tend to associate with each expression. related to the definition of meaning and reference is what is generally referred to as the “principle of compositionality” or “frege’s principle” (see frege 1984, pp. 390-406), according to which the meaning of an utterance is a function of the meaning of its parts and its rules of composition. since it applies both to sense and reference, this assumption generally requires harmonic relationship between syntax and semantics. thus, starting from a finite repertoire of meaningful expressions, it is possible to systematically construct 11 at the same time, marmor (2005, p. 133; 2014, ch. i) points out that the indeterminacy of the legal language may depend on its communicative context (the ways in which the information contained in words is communicated) in which legal texts are used. 12 in this regard, see especially villa (2012, pp. 163-180). 13 on this topic see also dummett (1975). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 264 a potentially infinite number of meaningful utterances. a confirmation of this principle, according to frege, can be found in the so-called “substitutivity test”: if, an expression within an utterance is replaced by another coreferential one, the reference of the utterance remains unchanged, and the truth-value unaltered. let us consider an example. if, in the statement “the morning star is a planet”, we replace a term with the same reference as “the evening star” (venus), the overall reference (i.e., the truth value of the statement) remains unchanged. the principle of compositionality and the law of substitutivity also apply to compound utterances. thus, the reference or truth-value of a compound utterance depends on the truth-value of its compounding utterances; by substituting one utterance for another coreferential utterance, the overall truth is not affected.14 3.2. semantic holism and the contextual dependence of sense revisiting and radicalizing the theses developed at the beginning of the twentieth century by the physicist, historian and philosopher pierre duhem, willard van orman quine (1961) proposes an image of knowledge according to which the minimum unit of empirical significance coincides with the whole network of our beliefs considered in their entirety. in this perspective, all our theoretical statements (not only the scientific ones) appear meaningless, if considered in isolation. in particular, the principle of revisability of assertions applies as much to the logical-mathematical field as to the linguistic sphere. to summary it very succinctly: (a) in principle, there are always an indefinite number of theories capable of explaining observed facts; (b) any theory can be preserved, no matter how much evidence to the contrary there may be, as long as fairly radical corrections are made somewhere in the auxiliary hypotheses, not in the hypotheses directly tested at any given time. any experiment relies to some extent on some basic assumptions, which can be summarized in the following terms: if we assume that a theory t implies an observational consequence o: t→o, and that the experiment to which o refers does not occur (hence ~ o), by modus tollens, ~t. a theory thus consists of an indeterminate (not a priori delimitable) set of assumptions: t ≡ (i1 ˄ i2 ˄ i3 … ˄ in) e ~ t ≡ ~ (i1 ˄ i2 ˄ i3 … ˄ in) which implies that ~ (i1 ˄ i2 ˄ i3 … ˄ in) ≡ ~ (~ i1 ˅ ~ i2 ˅ ~ i3 … ˅ ~ in). the confirmation of a theory is a complex demonstrative process, structured in an extensive comparison between all the propositions derivable from its axioms and the data of experience. the unitary character of the empirical confirmation of a theory is not given by the single statements that compose it, but by the theory itself understood as a whole. 14 for a criticism of this approach, see the arguments of quine (1961, pp. 139-159), who elaborates several examples aimed at showing how the semantic content of a linguistic expression is not always reducible to its reference (“[o]ne of the fundamental principles governing identity is that of substituvity – or, as it might well be called, that of indiscernibility of identical. it provides that, given a true statement of identity, one of its two terms may be substituted for the other in any true statement and the result will be true. it is easy to find cases contrary to this principle. […] the principle of substitutivity should not be extended to contexts in which the name to be supplanted occurs without referring simply to the object. failure of substitutivity reveals merely that the occurrence to be supplanted is not purely referential, that is, that the statement depends not only on the object but on the form of the name. for it is clear that whatever can be affirmed about the object remains true when we refer to the object by any other name” (ibid., pp. 139-140, italics in the text). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 265 quine’s approach – it is worth insisting on this point – has a much broader scope of application. it is not limited only to the world of physics (as in the case of duhem)15, but more generally involves scientific methodology, as well as the extra-scientific, cognitive and linguistic spheres.16 not only our (scientific) knowledge, but also the meaning of our daily utterances is the result of a complex network of beliefs, where conceptual linguistic information and empirical data appear as inextricably connected. below we will indicate, without any pretence of exhaustiveness and without deepening the complex theoretical debate that they have generated, some insights attributable to the area of the post-neopositivist theory of meaning that can concretely contribute to illuminate several notable aspects that characterize the functioning of interpretative practices within a constitutionalized legal context.17 as we will attempt to show, these representations of meaning contain interesting applications at the level of the theory of legal interpretation, because of the prominence given to the conditioning exerted by the interpretive context, and because of the conception of the relationship between objects and facts (and the linguistic symbolism used by the community of speakers to account for them). 3.2.1. the abandonment of the synthetic-analytical dichotomy in w.v.o. quine’s perspective a starting point of quine’s analysis (1961, pp. 20-46) is given by the fregean distinction between meaning and denotation, both for singular terms and for predicates. now, according to a canonical reconstruction, two expressions are in a relation of synonymy if they possess the same meaning: the term “bachelor”, for example, is synonymous with “unmarried adult man”; conversely, a statement that is analytic is true by virtue of the meaning of the expressions: in other words, it can be reduced to logical truth by substituting synonymous terms. as is well known, quine radically questions this distinction, and in particular the hypostatization of the meaning which presupposes (like wittgenstein, quine also rejects the search for mental entities that correspond to the meaning of words). indeed, he shows that it is not possible to define the concept of analytic – and therefore the meaning on which it is based – without falling into a vicious circle. the reasoning, reproduced herein an extremely synthetic way, is roughly the following. to define synonymy, the only method that does not presuppose the concept of 15 the duhemian perspective excludes extra-scientific disciplines as well as those sciences that have not yet reached the “so-called stage of maturity” (see duhem 1894, p. 182), since “[e]n de telles sciences, la comparaison entre les déductions d’une théorie et les faits d’expérience est soumise à des règles très simples” (id. 2016, p. 146). 16 for a critique of the connection between semantic and extra-semantic spheres within the holistic perspective, see fodor & lepore (1992) (“whereas the natural objects of semantic interpretation are linguistic entities like formulas, the natural bearers of confirmation relations are trans-linguistic entities like propositions”; ibid., p. 53). 17 in the classical reconstruction of riccardo guastini (1990, p. 185), with this notion we mean that “processo di trasformazione di un ordinamento al termine del quale esso risulta totalmente ‘impregnato’ dalle norme costituzionali”. the term ‘constitutionalization', although in a less articulated meaning, already appears in tarello (1980, p. 337). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 266 analytic seems to be the one that appeals to the idea of substitutivity. however – quine argues – even equiextensional expressions but not synonymous, that is, with the same extension but different meaning (“endowed with kidneys” and “endowed with heart”, for example), cannot be replaced in intensional contexts (i.e., logical expression in which the replacement of one term with another fitted with the same meaning can change the entire truth value of the expression). the notion of synonymy therefore presupposes the use of the concept of substitutivity in all contexts, including intensive ones. on the other hand – the author points out – an intensional language (and the notion of necessity that it entails) is understandable only if the notion of analyticity has already been understood. this creates a vicious circle because analyticity represent what we have to define: the notion of intension, in other words, should have been an explicatum of the concept of meaning, but this explicatum fails, according to quine, to reach a sufficient level of conceptual clarity and must therefore be abandoned.18 our propositions cannot be divided into two separate classes: on the one hand the analytical ones, whose truth depends on the meaning, and on the other the synthetic ones, whose truth depends on the facts. even if a language will produce true and false sentences (and will contribute to forming theories, that is, sets of true sentences), it will no longer be possible to distinguish the constitutive sentences of the meaning in a language (“bachelors are adults who are not married”) and utterances that are not such (“bachelors are available people”). the distinction between the synthetic and the analytic – quine argues – must therefore be rethought as a question of degrees, empirically based on our propensity to keep or abandon certain statements. what is important to underline, in view of a transposition on the level of constitutional interpretation, is that according to this line of reconstruction the meaning we attribute to a term also (and often predominantly) depends on our beliefs about things: asking ourselves about the meaning of a term or of an utterance is not ultimately separable from reflecting on the reality that surrounds us. 3.2.2. the thought experiment of the radical translation and the principle of charity in donald davidson’s perspective the “radical translation” or “radical interpretation” (see quine 1990, pp. 37-50; davidson [1973] 1984) is an ideal experiment of translation between two languages and 18 an alternative, just mentioned en word en object, is that of the definition of analyticity intended as an explicitly conventional introduction of new notations for the purpose of simple abbreviation. this seems the only case of definition that does not presuppose the relation of synonymy: in this case the definiendum becomes synonymous with the definiens since it was specially created for the purpose of simple abbreviation. quine, however, believes that this kind of definition covers only a few cases. (“there does, however, remain still an extreme sort of definition which does not hark back to prior synonymies at all: namely, the explicitly conventional introduction of novel notations for purposes of sheer abbreviation. here the definiendum becomes synonymous with the definiens simply because it has been created expressly for the purpose of being synonymous with the definiens. here we have a really transparent case of synonymy created by definition; would that all species of synonymy were as intelligible. for the rest, definition rests on synonymy rather than explaining it”; quine 1960, pp. 25-26). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 267 cultures that have never come into contact. it presupposes a situation in which, in order to carry out his task, the interpreter has only connections between verbal expressions and observable behaviours. in such a context, he will therefore be induced to focus on the reactions of assent and dissent of the natives. it thus becomes possible to understand in an already known language a completely unknown language, specifying the truth conditions of its utterances. especially in davidson’s approach, the drafting of a translation manual (that is, the elaboration of a theory of meaning) of the potentially infinite set of utterances belonging to a natural language unknown to us seems to require the attribution, in terms of heuristic hypothesis, of a complex of beliefs, and in general of propositional attitudes (attitudes specifiable by reference to a proposition), to speakers. furthermore, the characteristics of this interpretative process are implicitly found within the intralinguistic dialogue in general. in davidson’s perspective, in particular, the idea of radical translation aims to bring to light what, in some ways, is already implicit in every interpretation (see above all davidson [1973] 1984, p. 125). in intralinguistic communication there is a continuous process of adjustment and convergence towards shared meanings; our interpretative constructions may differ in particular attributions of belief or assignments of meaning. a process such that, on the one hand, the interlocutor’s beliefs are derived from the meanings we believe he attributes to the words and, on the other hand, the meanings of his words are derived from what we imagine are his beliefs. the empirical evidence – explains davidson – is not enough to disambiguate the content of meanings and beliefs. consequently, there are always several possible interpretations compatible with the verbal emissions of our interlocutors. according to his approach, communication is configured as a sharing not of meanings intended as linguistic conventions but of fundamental beliefs related to our world (see especially davidson [1974] 1984).19 among the various reasons of interest that this thought experiment brings to light, due to its relevance for the purposes of the discourse developed so far, the structurally indeterminate character of the interpretation (in the davidson version, more focused on semantic problems) should be highlighted: the idea that, depending on the conceptual schemes used by the linguist-observer, there always may be different translation models compatible with empirical data, but incompatible with each other. there will always be more than one theory of adequate interpretation to any particular body of evidence. the 19 in this regard, celano (2013, p. 108) links the abandonment of the analytic-synthetic dichotomy with the adoption of an encyclopedia semantic model (see eco 1984, ch. 2), modelled on the image of the rhizome, in which the process of interpretation gives rise to a potentially infinite chain of interpretants which takes the name of “unlimited semiosis”. in a semantic system of this type, it is always possible to follow different interpretative lines according to the contingent contexts and choices. (“[u]na specificazione del significato dei termini di una lingua naturale non è un insieme finito di equivalenze definitorie da dizionario. un dizionario non è semanticamente competente, né costituisce un modello adeguato della competenza semantica di un parlante. la semantica di un linguaggio naturale non è un insieme di definizioni stipulative: la nozione di analiticità (non formale) non costituisce una fondazione solida per una teoria del significato”; celano 2013, p. 106). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 268 attribution of meaning to an expression is an operation that cannot be separated, in the final analysis, from the formulation of conjectures about the speaker’s beliefs.20 in order for a conversation to take place on a rational basis, it is to be hoped a “common ground” of knowledge shared by the interlocutors (see from this point of view also stalnaker 1974). this common ground is precisely represented by the set of assumptions that speakers presuppose – or at least should presuppose – within the communicative process. it is also necessary that the interpreter starts from the assumption that the pattern of attitudes proper to the speaker, against the background of which the interpreted speech is placed, consists of beliefs that are largely correct and coherent, is largely free of contradictions, largely agrees with that of the interpreter himself, and fundamentally conforms to his ideal of rationality. the interpreter, from this viewpoint, must move from a presumption of coherence and consistency21 of the interlocutor having a tool that allows interpreting the meanings of his utterances. now, among the heuristic hypotheses that can facilitate the understanding of the meanings and beliefs of others, an important role is played by the so-called “principle of charity” or “charitable interpretation”.22 on the one hand, this maxim prescribes to avoid as much as possible the attribution of false beliefs, logical fallacies, falsehoods or attitudes that are not shareable to speakers; on the other, it requires interpreting a speaker’s statements in the most rational and sensible way possible. in this way, the participants in the communicative interaction will be able to share a broad set of background beliefs, increasing therefore the rationality of inter-subjective communication. it is also possible to understand any errors, inconsistencies, contradictions, opinions diverging from one’s own, and in general forms of the irrationality of the other speakers. the first formulation of this principle can be found in quine (2013, p. 54, n. 2) and it was then taken up by various authors and in particular by davidson, in whose theory it assumes not only a descriptive valence, of an explanatory principle, but also prescriptivenormative. it is not part of the purpose of this study to analyse all the meanings, however 20 i lack the space, within this article, to extensively analyse the complex problems which, in this regard, have been debated in the philosophical-linguistic debate. i just point out that several criticisms have targeted semantic holism, in most cases aiming at highlighting the implausibility of some of its consequences; the threat it would represent for the diachronic stability of meaning and, consequently, for the processes of communication and understanding. taking this approach, it seems problematic to determine the extent to which meanings may evolve, and the extent to which the individual speaker and the linguistic community continue to use language with the same meanings over time. if the meaning of a word depends on the totality of the language in which it is embedded – it is widely argued – it will inevitably be linked to the totality of the peculiar uses of the idiolect of each individual speaker. for example, the meaning of “car” would end up referring to the particular meaning that each subject attributes to the word, based on their individual and private use of language. consequently, if it is not possible for two speakers to share the same meaning of words, if the meaning of words varies across subjects, communication itself becomes unmanageable. see in particular dummett (1991, pp. 221-244). 21 for the distinction between consistency (logical compatibility) and coherence (substantial congruence) between norms, see especially maccormick (1984). 22 davidson (1974), sometimes, has also referred to it as the principle of ‘rational accommodation’. michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 269 numerous, in which davidson declined this principle. it may be enough to note that the process of interpretation turns out to depend on the combination of two aspects: a holistic assumption of rationality in belief and an assumption of causal relatedness between beliefs and the related objects. on these bases, interpretation can be understood as a process aimed at maximizing the rationality of the speaker’s utterances under the profile of coherence and correspondence (the presumable similarity of cognitive responses to the world). this framework, therefore, is always capable of generating a set of possible worlds, as long as they are compatible with the “common ground” of the speakers.23 3.3. some contextualists research programs: two examples the most recent philosophy of language has seen the spread of a theoretical orientation pointing out that not only the sense of a word is always dependent on the context, but, more radically, the very meaning of a word or of an utterance is linked to language in its entirety (see in particular wittgenstein 1968). this approach is configured as a review and an extension of the fregean assumption that a word has meaning only in the context of the utterance in which it is inserted. according to this perspective, the change in the meaning of any part of the language produces a more or less direct change in every other part of it. on the other hand, within frege’s perspective, in indirect contexts (conveying knowledge and beliefs) the reference coincides with the content of the belief, the thought believed or known, while in direct speech utterances the reference coincides with the truth-value. although some anticipation of this principle appears in his ideography (frege 1967) its real formulation occurs in the foundations of arithmetic (frege 1950, § 62) and then disappears in later writings. now, a particularly controversial problem within the fregean approach is the relationship between the principle of context and the principle of compositionality, which create a possible contrast related to the way and order meaning is determined. in general terms, there seems to be a certain tension between the idea that the meaning of the whole depends on the meanings of its components and the idea that the meaning of any one expression depends on the meanings of all other expressions (not just those components). in fact, if one accepts the holism implicit in the principle of context, the criterion presupposed by the compositionality of the determination of the meaning of simple expressions as prior to that of the meaning of complex expressions is lacking24. another relevant aspect of frege’s theory is that it takes the laws of mathematics, understood as universally and timelessly valid as a model for the meaning of an utterance. absent from this theoretical apparatus is the consideration of the pragmatic dimension of the extra-linguistic context, which is embedded within the semantic sphere. 23 in this regard, see also j.r. searle, who refers to different possible backgrounds that preside over the understanding of the meaning of the utterances (“the notion of the literal meaning of a sentence only has application relative to a set of contextual or background assumptions” (searle 1978, p. 117). 24 on this point, see the approach of dummett (1981). more generally, see pagin (1997). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 270 the most systematic overturning of this approach is due to wittgenstein, who, particularly in his philosophical investigations, emphasizes how language is inextricably linked to a complex web of actions, conventions and rules that, depending on the context in which they are inserted, produce different contents for each statement. the contexts of use in which the expressions we usually employ are inserted cannot be described on the basis of a mere formal analysis of language. for example, in utterances such as “this tree is covered with leaves”, the mere sequence of words cannot convey the complete expression of the thought, as it needs to be completed by temporal and spatial information, as well as by other data related to the reference context (tones, looks, other aspects of behaviour, etc.). therefore, to understand the meaning of a word within an utterance, it is necessary to know the rules that govern the “linguistic game” (“the whole, consisting of language and the actions into which it is woven”; wittgenstein 1968, §7) in which the utterance is inserted, in most cases based on a function that is not denominative but expressive; for example, to communicate a command, a prayer, or a lament. only in the context of a linguistic act does an utterance therefore express a determined content. without wanting to analyse in depth the two positions under consideration, as well as the considerable problems of interpretation that they have generated, we can limit ourselves to consider their basic difference. compared to the fregean approach, in the second wittgenstein – including therefore not only the philosophical investigations, but also that collections of notes, lessons, diaries and letters following the publication of the tractatus logicophilosophicus – the context is no longer given by the single statement, but by a set of possible statements within which a term is inserted. the meaning of the utterance can be understood only against the background25 of a web of words and actions represented by linguistic games. the constitutive assumptions of semantic holism will then influence various research programs, united under the fundamental thesis that words are not associated, as traditional semantics believed, with sets of abstract application conditions, but rather with particular applications. these approaches show, among other things, how the relations maintained between the utterances and the context (both linguistic and extra-linguistic) are often relevant for the very determination of the conditions of truth of the same. countering the idea of a mechanical determination of the truth conditions of utterances by their linguistic meaning, these theories conceive of meaning as an outcome, that is, as the product of the interaction between the collection of past contexts of use and the present context. the ways in which dependency relationships between these occasions 25 on the background concept, see searle 1983, ch. v; 1998, pp. 107-108 (“[i]t is this set of capacities, abilities, tendencies, habits, dispositions, taken-for-granted presuppositions, and “know-how” generally that i have been calling the “background”, and the general thesis of the background that i have been presupposing throughout this book is that all of our intentional states, all of our particular beliefs, hopes, fears, and so on, only function in the way they do – that is, they only determine their conditions of satisfaction – against a background of know-how that enables me to cope with the world”). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 271 of use manifest themselves are therefore not given a priori, but are determined by the context itself.26 a particularly relevant model of pragmatic conception of language undoubtedly influenced by the wittgensteinian reconstruction is the so-called “indexical contextualism”, i.e., that form of semantic relativism according to which “different characteristics of contexts determine different contents for the utterance that becomes the object of a communication activity” (villa 2017, p. 220, my translation).27 the denomination of this approach refers to those utterances in which there are indexical or deictic elements (personal, spatial and temporal deictics).28 these are expressions such as “i don’t want this here” or “this is more expensive than that”, which refer to the spatio-temporal situation in which the same utterance is uttered, to the persons who utter or receive the utterance. they are thus assumptions which are not directly connectable to the semantic profile of the utterance in question.29 as a first approach, a context can be seen as a set of boundary or background factors that affect, the meaning of a phenomenon, process, or representation from a spatiotemporal and/or logical perspective. in linguistics, more specifically, context can be conceived as the “position” in which a given utterance is used within a sentence or language itself. however, indexical expressions present peculiar characteristics that cannot be ascribed to this general scheme, since their reference (think of cases of indexicals such as “i”, “now”, “here”, “he”, “she”, “you” etc.) is given in a relative form. they may refer to various subjects according to their respective contexts; i.e., their content may vary not only according to the change in the state of affairs, but also with respect to a single state of affairs.30 partially similar to this theoretical orientation is a research program known as “dynamic semantics”, a framework in logic and natural language semantics focused on the purpose of identifying the meaning of a sentence not with the conditions of truth, 26 for a recent example of the use (of some categories) of the pragmatic approach in the field of legal theory, see the work of francesca poggi, who reformulates the gricean theory of conversational maxims by investigating its applicability to ordinary normative discourse and to the legal field; see poggi (2020). 27 in this regard, in dealing with indexical contextualism, herman cappelen speaks of “content relativism” to underline how, in situations in which the context of reception of the message is separated from the context of emission (and this is also the case of legal communication), the interpreter will be led to reconstruct the meaning of the message within that context of reference (see cappelen, 2009, pp. 23-24, 32-33). 28 see, for this category, halliday & hasan (1976, ch. 2). 29 representative examples of this approach can be found particularly in macfarlane (2009); weatherson (2009). an interesting survey of the different aspects of contextual dependence is due to perry (1998), who distinguishes between: (a) pre-semantic context, which allows for the disambiguation of syntactic categories; (b) semantic context, relating to the situation in which indexicals, demonstratives, and anaphoric pronouns are shown to refer to; (c) post-semantic context, relating to the other aspects of context that depend on general theories and conceptions. 30 see recanati (2004, espec. p. 143) “according to indexicalism, it is the sentence which, via the conventional meaning of the context-sensitive expressions it contains, triggers and controls the appeal to the speaker’s meaning. the speaker’s meaning thus plays a role in the determination of truth-conditional content, but it does so only when the sentence itself sets up slots to be pragmatically filled (minimalism)” (ibid., p. 96). insisting on the relevance of this approach for legal theory, villa (2017, ch. v). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 272 but with the effect that its emission produces in the context where the conversation takes place.31 in fact, this approach treats the meaning of a sentence as its potential to update a context, emphasizing the growth of information content over time. from this point of view, compositional meanings (often called “context change potentials”) have the nature of functions or relations; interpretation of a proposition is conceived as an information updating step. what is important to note, for the purposes of the discourse that will develop in the next paragraphs, is that the semantic tradition, among other things, explains how the interpretation of discourse is constantly influenced by the common ground (understood as in constant development) that exists between speaker and hearer. 3.4. the role of context in the legal interpretation of constitutional rights the transposition of some of these methodological tools into the sphere of the legal experience (not in a complete or unreflective fashion, but critically) can help to shed light on several notable aspects that characterize the contextual dependence of the interpretation of constitutional rights and, more generally, the legal phenomenon per se, as a practice characterized by its own specific contextual assumptions. this point of view shows how the foundation of the judges’ interpretive choices is constituted by the selected normative data, and is influenced in a decisive way by different theoretical assumptions and different legal policy options. the contextualist approach seems particularly suitable to account for the functioning of interpretive processes involving constitutional provisions conferring fundamental rights. the broad configuration scope that the drafting of constitutional rights tends to leave to the interpreters, especially in cases where they are dealing with terms incorporating dense substantive ethical content32, can clearly foster a creative role on the part of the judge. however, outlining this framework does not mean (does not imply, does not require) attributing an inherently positive value to contextually-influenced evolutive interpretation33. to put it briefly, the structural vagueness of the constitutional formulas can lead the judge to adopt an attitude oriented towards identifying the content of the rights in the interpretative context in which the constitutional text is inserted, thus allowing himself to be conditioned by the social morality (or conscience) of reference34. this room for discretion for both constitutional and ordinary judges could have deleterious consequences. for example, it may favour the emergence of an interpretative practice influenced by an external 31 ex multis, see the works of robert stalnaker (1972), hans kamp (1981) and jeroen groenendijk (1991a, 1991b). 32 this notion can be understood as that set of rights, principles, values, and interests which place a series of material constraints on the choices which can be legitimately pursued through legislation; see celano (2013, pp. 125-130). 33 “[s]i dice ‘evolutiva’ ogni interpretazione che attribuisca ad un testo normativo un significato nuovo, diverso da quello usuale o consolidato. l’interpretazione evolutiva è frutto dell’adattamento di vecchie, o relativamente vecchie, leggi (o costituzioni) a situazioni nuove, non previste dal legislatore storico (o dai padri costituenti)” (guastini 2011, p. 100). 34 in this regard, see the remarks of alchourrón, bulygin (1991, pp. 315-317); moreso (2001); navarro (2008, pp. 39-55). more recently, see sardo (2018, pp. 176-178). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 273 atmosphere hostile towards the protection of constitutional rights35. the interpretation of their content may be similarly affected by an unfavourable economic-financial conjuncture or by a fragmented and conflicting cultural climate, that makes this work of sociological reconnaissance (the “mapping” of moral values diffused within a given society) even more difficult. in these and other circumstances, the lingering risk is to erode the very meaning of constitutional rigidity36, while making less transparent the decision of the judge, who will ultimately be led to appeal to some implicitly assumed evaluative criterion. the use of an interpretative key focused on the relevance of contextual factors can help to understand the structural limits of the knowledge of judges (and, more generally, of any legal operator), which feature a complex web of information that is inevitably partial and fragmentary at their disposal. since our set of information is necessarily partial and incomplete, and due to the unavoidable (diachronic and synchronic) instability of natural languages, it is practically impossible to know the legal consequences of constitutional clauses conferring fundamental rights. this should encourage us to observe the whole range of possible cases to eventually develop statistical calculations. in this sense, it could almost be said that, just as the degree of logical probability and corroboration of the empirical content of scientific theories is greater or lesser depending on the level of precision with which they are formulated37, similarly, in the field of legal interpretation, only at a relatively abstract and generic level of formulation of principles and values does it appear possible to obtain an agreement, inevitably incomplete and provisional, between bearers of different conceptions of the public good (of the obligations, rights and moral values that claim priority). the above can be illustrated with an example. taking up daniel mendonca’s reconstruction, the spanish constitutional court’s position on the classic conflict between the right to information and the right to free speech on the one hand, and the right to privacy and the protection of one’s image (protected by articles 20.1, 20.4 and 18.1 of the spanish constitution), on the other, can be summarized in the following formula: “[t]he right to information prevails over the right to honour, unless the information is libellous or, even if not libellous, is not truthful or lacks public relevance” (mendonca 2003, p. 79, my translation).38 now, since courts cannot deal with legal disputes by applying a specific 35 at the same time, it should be noted that an originalist and static interpretative model, oriented to cognitively identify and deductively apply the original meaning of constitutional provisions, does not necessarily imply a conservative political ideology (see in this regard sardo 2018, pp. 155-158). 36 see in this regard goldsworthy (2011, pp. 51 ff.). 37 see in this regard popper (2002, pp. 162-163). 38 in the author’s view, the identified rule constitutes a more concise reformulation of two fundamental rules found in many rulings of the spanish constitutional court: 1) “[la libertad de información], como regla general, debe prevalecer siempre que la información transmitida sea veraz y esté referida a asuntos públicos que son del interés general por las materias a que se refieren y por las personas que en ellas intervienen” (stc 142/1991); 2) “[no pueden] entenderse protegidas por las libertades de expresión e información aquellas expresiones o manifestaciones que […] resulten formalmente injuriosas o despectivas, y ello equivale a decir que estos derechos no autorizan el empleo de apelativos injuriosos utilizados con fines de menosprecio, puesto que la constitución no reconoce ni admite el derecho al insulto” (stc 85/1992). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 274 pre-established hierarchy rule, but only intervene based on concrete circumstances, it is reasonable to speak of rules of conduct that cannot be applied peremptorily in future cases. on a logical and hypothetical level, the first step will consist in the construction of a taxonomy that allows to place each case within a certain category; subsequently, some rules of conditional priority will be elaborated, without implying an exhaustive hierarchization, but only an open and revisable order. the most important of these rules states that when there is a collision between freedom of expression and the right to privacy, the conflict must be resolved in favour of the latter right, but freedom of information must prevail whenever the information content is truthful and of public importance. this rule should be understood as open-ended and incomplete, since there is nothing to exclude the possibility that in the future new circumstances may arise, requiring the addition of another condition to those already established or the reformulation of the concepts of “truthfulness” and “public relevance”. this process is undoubtedly subject to a form of inter-subjective control, since the solutions identified may represent models of guidance for future cases. however, it is always possible for the judge to free himself from the constraints constituted by the precedent. it is always possible, in broader terms, to work out a new universe of properties that has a different structure to establish a new order of compatibility between the conflicting norms. a brief note. it should be noted that the theoretical orientation described here does not necessarily have to be associated with a metaethical “irenistic”39 (or “coherentist”, depending on the denominations) approach, who believes it is possible to obtain a stable balance between the values that inform the substantial ethical content of the constitutional state, nor on the other hand does it imply the defence of the so-called “one-right-answer” thesis.40 there is no logical link, from this point of view, between the use of a holistic interpretative method and the idea of an exhaustive and harmonious determination of the relevant properties of the standards. on the other hand, the orientation described here seems largely compatible with a model of reasoning of a particularistic nature, according to which “any consideration can represent a valid reason and all valid reasons must be 39 this denomination was first proposed by celano (2013, spec. pp. 65-71) and was then taken up by various authors (see, for example, barberis 2006; luque sánchez 2013). settings of this type, which refer to intuitionist and cognitivist presuppositions, can be found in particular in the works of finnis (1980, spec. chapters iv, v); häberle (1993, pp. 39, 41, 62, 68). 40 as is well known, the first and most complete elaboration of the thesis of the only correct answer comes from dworkin (1986, spec. ch. 7). although it is generally associated with an objectivist and/or essentialist type of argumentation in terms of the knowability of ethical values (see for example celano 2013, p. 104, note 15), in reality this thesis states more moderately that it is unlikely, although not entirely impossible, that, at least from the point of view of the judge, there are cases in which the reasons for deciding in favour of one or the other of the two legal goods worthy of protection are perfectly balanced: law, in this sense, it can be completed from the inside, since it is possible to apply the norm that best suits the ethical-political principles on which each legal system is founded (see in this regard atienza 2010; 2013, pp. 551 ff., 573 ff.). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 275 weighed and compared to each other to establish what is correct to do within a particular case” (redondo 2008, p. 102).41 by adopting this perspective, nothing prevents us from recognizing that, in some contexts, general and abstract ethical norms may exist that can guide the interpreter in the analysis of cases. what the particularistic model affirms, however, is that in these cases one can only speak of provisional and revisable “rules of thumb”, generalizations of particular decisions not necessarily valid for future cases. the decisions adopted, always relating to specific cases, are capable of being universalized on the basis of the rule of judicial precedent, projecting on all generic cases with similar characteristics.42 the intrinsic variability to which the relevance of individual cases is subject does not exclude, on a conceptual level, the possibility of building “consistent”, logically coherent conflict systems, within which a generally unique response emerges for certain cases of conflict. 3.5. moral reading of constitution and reflexive equilibrium as we have tried to show, in a model of substantive legal culture, the widespread use of evaluative and indeterminate formulas, with a generic and indefinite conceptual basis, frequently characterizes the linguistic structure of the legislative provisions that recognize fundamental rights. this structural aspect seems to suggest, if not even impose in certain cases, the use of forms of moral reasoning (not tout court but) variously guided by the consideration of legal factors such as, for example, the argumentative techniques accredited in the legal culture of reference, possible case law precedents, etc. in other words, it seems to involve recourse to a model of moral reading of the constitution43, capable to interpret and apply clauses endowed with the mentioned characteristics. not unlike how it can happen in understanding the meaning of a speech formulated in natural language, in identifying (and interpreting) the rights conferred by a constitution, we are constantly looking for a reflexive equilibrium, in which our ethical-juridical 41 in a nutshell, the particularist approach argues that moral reasoning does not represent a perfect inferential chain and generic cases are always capable of presenting exceptions. like irenicism, particularism also affirms that conflicts between values or principles present one and only one correct solution; but, contrary to the latter model, he believes that this solution cannot be identified ex ante for future cases, but is valid only for a concrete case. for a debate on ethical particularism, see above all schauer (1991), mcdowell (1998), raz (1999, espec. p. 245), sinnott-armstrong (1999); mckeever & ridge (2006), hooker & little (2000). 42 naturally, this model is mostly reflected, on a more strictly legal level, in common law systems, in which the revocation, also called “overruling”, determines the retroactive exclusion of the former judicial within the system and its replacement with the other established test case. the binding nature of the precedent can also be overcome by the technique of distinguishing: in this case the judge excludes the applicability of a specific precedent to the present case, based on some differences that appear relevant to the question to be decided. 43 for this notion see above all dworkin (1996) “[a]ccording to moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power” (ibid., p. 7). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 276 principles and our immediate intuitions are also involved.44 in this regard, it is convenient to quote widely what giorgio pino writes: starting, for example, from a very generic definition of the freedom of expression of thought, and assuming some values and objectives that justify the protection of this freedom (in hypothesis, the development of democracy and individual autonomy ) we will have paradigmatic cases of its violation (censorship in relation to an anti-government newspaper); while it will be uncertain whether other behaviours really constitute instances of the exercise of the freedom in question (pornography, commercial advertising) and if some other behaviours represent a violation of the same freedom (public financing of government newspapers, although without exerting a censorship towards the other newspapers). the answer to these last cases can only be provided by committing ourselves to an argument that evaluates the meaning and scope of the values underlying the recognition of a certain right, and also its relationship with other relevant values; and this argumentation may induce us to include or not certain modalities of manifestation of the thought of the field protected by the right (and then to reformulate its definition), or even to reformulate the very justification of the right, continually unravelling between the cases in which the right is relevant and the substantive justification of the right (pino 2008, pp. 408409, my translation). based on these starting assumptions, relying on the identification of some paradigmatic cases (real or imaginary), i.e., hypotheses in which we are sure that certain relevant terms find application, it becomes possible to develop a rational argumentation in support of the extension or exclusion of a dubious case. in these circumstances we will be led to ask ourselves, possibly also in the light of further moral principles and judgments, whether the characteristics of certain paradigmatic cases are also present in other cases which, in principle, could fall under the same discipline. in this operation, the interpretation of constitutionally enshrined rights is ultimately one with the reconstruction of their doctrinal background: the identification of the ethical-political doctrines (liberalism, socialism, republicanism, etc.)45 from which they originate on the historical level and the values (life, property, freedom, equality, etc.) that they embody. 44 the holistic character of reflective equilibrium is underlined above all by rawls (1971). the relevance of this intuition for the theory of law is analysed in particular by maniaci (2008). 45 “una dottrina, una teoria etico-politica, è un contenuto di significato, un contenuto di senso complesso (non, ovviamente, un insieme di enunciati). i criteri di identità di una dottrina sono, dunque, i criteri di identità di un contenuto di senso. l’identificazione di una dottrina è la ricostruzione di un contenuto di senso, mediante la comprensione di un insieme, verosimilmente indefinito, di enunciati. se una costituzione incorpora una dottrina, per comprendere la costituzione – ossia, per determinarne il senso – occorrerà comprendere che cosa sia incorporato, e per comprendere che cosa sia incorporato occorrerà identificare – ossia, ricostruire – la dottrina” (celano 2013, p. 99). michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 277 4. conclusions (1) in the previous considerations we tried to show how it is ultimately implausible, even counterintuitive, to consider that a constitutional text which is the result of a “social contract” between heterogeneous political-cultural traditions and conceived with the aim of lasting for a long time, may contain detailed regulations, rights formulated in an accurate and precise manner. on the contrary, the extremely generic framework outlined by the constitutional provisions opens up for the interpreter a plurality of “constitutionally possible worlds” (different, and often equally “reasonable”, are the ways of interpreting abstract moral principles).46 a global reading of the set of rights, principles, goods, and interests recognized within the constitutional systems of contemporary liberal-democratic states shows an articulated web of potentially conflicting, incommensurable, and incompatible values. the rights, values, and ethical principles that inform the content of current liberal democracies’ constitutions seem to present a global internal link (or, at least, a web of relations), which emerges both in (indeed more frequent) cases of incompatibility and in their synergistic cooperation. (2) when concretizing provisions that recognize constitutional rights, judges behave predominantly as moral agents by adopting, more or less implicitly, an “internal point of view” with respect to legal practice47. in other words, in the process of interpreting and applying the law, judges are not faced with external “objects” independent of their own observation; rather, they tend to interpret provisions based on a continuous internal comparison with the substantive and value-oriented dimension of the constitution, influenced, among other things, by their own immediate moral intuitions, by the “cultural crystallizations” sedimented outside the legal text (see in this sense häberle 2001, p. 33) and by the general ethical principles of the legal culture of reference. the transition from judge-selected provisions to norms can be conceived as a fundamentally entropic process of interdependence and interaction between interpreters and available normative materials (judicial precedents, paradigmatic cases, para-normative acts, etc.). relying on a necessarily finite set of preselected information and interpretive strategies, judges arrive at a provisional conclusion which is deemed correct all things considered, and often guided by substantive assumptions of practical reasonableness or inclusive conceptions of the public good.48 46 the expression is taken from moreso (1997, p. 167). 47 for this notion, the reference is hart (1994). 48 see in this regard fiandaca (2011, pp. 1395-1396; “l’identificazione del contenuto, la determinazione della portata e dei limiti di valori e principi costituzionali dal contenuto indeterminato come dignità, uguaglianza […] sono operazioni che richiedono – non di rado – il ricorso a considerazioni e argomentazioni morali sostanziali, le quali, lungi dal poter essere sviluppate tramite un’attività di semplice interpretazione del testo costituzionale in sé considerato, rimandano alle ideologie e alle concezioni morali comprensive di riferimento dei singoli interpreti”); and also celano (2013, p. 105; “una teoria plausibile del significato è una teoria che rappresenta l’attribuzione di significato a un enunciato, o a un complesso di enunciati (la comprensione di un discorso), come un’impresa di carattere olistico e coerentista, guidata dal principio di carità e da assunti sostanziali di ragionevolezza. queste caratteristiche si presentano in forma tanto più marcata, quanto più il discorso oggetto di comprensione contiene termini generici, astratti, aperti, indefiniti, suscettibili di una molteplicità di specificazioni”). the contextual dependence in the interpretation of constitutional rights the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 278 (3) for the reasons considered above, it is illusory to believe that the indeterminacy of the style of constitutional drafting of rights, though largely unavoidable, automatically produces beneficial effects in interpretation, in terms of the democratic legitimacy of the judicial management of rights rather than in relation to their implementation. in the current constitutional panorama, the judge always bears a considerable burden of argumentation whenever he has to make an interpretative choice. the judicial power is obliged to “base” its choices (justify its decisions) in relation to various matters, including, of course, the balancing of rights. in this sense, the legal reasons supporting interpretative decisions appear structurally partial, thus enabling potentially conflicting results. references alchourrón, c., bulygin, e. los límites de la lógica y el razonamiento jurídico [1989], in c. alchourrón, e. bulygin, análisis lógico y derecho, centro de estudios constitucionales, madrid, 1991. atienza, m. in merito all’unica risposta corretta, «ragion pratica», 1, 2010, pp. 45-58. atienza, m. curso de argumentación jurídica, trotta, madrid, 2013. barberis, m. i conflitti tra diritti tra 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https://doi.org/10.1093/0198297718.001.0001 https://doi.org/10.1093/0198297718.001.0001 https://doi.org/10.2307/1341816 michele zezza the age of human rights journal, 18 (june 2022) pp. 257-283 issn: 2340-9592 doi: 10.17561/tahrj.v18.6517 283 waismann, f. verifiability (part ii of a symposium), aristotelian society, supplementary volume xix, 1945, pp. 119-150. waluchow, w.j. inclusive legal positivism, oxford clarendon press, oxford, 1994. weatherson, b. conditionals and indexical relativism, “synthese”, 166, 2, 2009, pp. 333357. https://doi.org/10.1007/s11229-007-9283-5 williamson, t. vagueness, routledge, london, new york, 1994. wittgenstein, l.j.j. philosophical investigations [1953], eng. tr., macmillan, london, 1968. received: july 28th 2021 accepted: october 25th 2021 https://doi.org/10.1007/s11229-007-9283-5 the contextual dependence in the interpretation of constitutional rights: an analysis from the point 1. introduction 2. the intentional vagueness of the constitution: the two poles of the theoretical debate 3. a hypothesis of analogical transposition 3.1. the “canonical” distinction between sense and reference 3.2. semantic holism and the contextual dependence of sense 3.2.1. the abandonment of the synthetic-analytical dichotomy in w.v.o. quine’s perspective 3.2.2. the thought experiment of the radical translation and the principle of charity in donald d 3.3. some contextualists research programs: two examples 3.4. the role of context in the legal interpretation of constitutional rights 3.5. moral reading of constitution and reflexive equilibrium 4. conclusions references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 1 forced marriages in europe: a form of gender-based violence and violation of human rights maria barcons campmajó1 abstract: forced marriages are recognized as a form of violating human rights, discriminating against women as well as a form of gender-based violence which both women and children suffer. in numerous international treaties and in other supranational documents, this practice is perceived as a violation against people’s dignity and as an attempt against fundamental rights such as freedom and equality. moreover, the forced marriage is a crime condemned by the international and european human rights law: it violates the right to freely marry and the right to live a life free of gender-based violence. the objective of this article is to critically review the international and european obligations of states in relation to forced marriages. this critical review will be carried out through normative analysis from legal feminism and feminist theory. keywords: forced marriages; human rights; gender-based violence; free consent; free marriage; istanbul convention. summary: 1. introduction. 2. forced marriages as a violation of human rights. 2.1. the right to marry with complete and free consent. 2.2. the right to a life free from gender violence. 3. forced marriages as a form of gender-based violence. 3.1. the legal instruments of the eu. 3.2. the council of europe: resolutions and istanbul convention. 3.3. normative heterogeneity in the state members. 4. conclusions. 1. introduction the objective of this article is to critically review the international and european obligations of states in relation to forced marriages. this critical review will be carried out through normative analysis from legal feminism. the investigation is based on legal feminism and feminist theory, mainly for two reasons: the first, because violence against women has focused much of the feminist debates of recent decades; and the second, because its methods, analysis and proposals make it possible to demonstrate the logic of legal systems and contribute to their transformation through law. the analyzes and contributions of legal feminism raise objections to the classical theories on human rights and social justice, focused mainly on egalitarian distributive claims and claims for the recognition of differences (bodelón gonzález, 2005; 1 phd in law, master in woman, gender and citizenchip and political science degree, departament of political science and public law, antigona research group (http://antigonaen.uab.cat/), autonomous university of barcelona (uab) (maria.barcons@uab.cat). the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 2 forced marriages in europe: a form of gender-based violence and violation of human rights fraser, 2008), which allow question the current regulation of violence against women and adapt it from a conception of justice that guarantees the recognition and effectiveness of women’s rights. next, the problem of forced marriages as a violation of human rights and as a form of gender-based violence will be analyzed. 2. forced marriages as a violation of human rights the international human rights law gathers contributions from feminists at a global level and, consequently, some of the human rights norms represent the basis to defend equality, non-discrimination and the right to a life free of violence in all countries. “the women’s movement relied on this shift of paradigm to demand that women’s rights be considered human rights and to make the link between equality and non-discrimination, an essential link to understand a true equality between all human beings” (facio, 2011, p. 6). forced marriage is recognized as a form of violation of human rights, discriminatition against women and children (young girls) and a form of gender-based violence (gbv) which women and young girls suffer. in numerous international treaties and in other supranational documents, this practice is perceived as a violation against people’s dignity and as an attempt against fundamental rights such as freedom and equality. forced marriages is a form of gender-based violence, as a practice that constitutes another form of violence against women in patriarchal societies where women have less value and are considered as an object of property of their husbands and families (igareda gonzález, 2017). it is true that forced marriages occur both against women and men, but the number of female victims is disproportionally higher, since it is estimated that around 85 per cent of victims of forced marriages are women and girls (heaton, mccallum and jogi, 2009). in the last two decades, the legal and normative framework, both international and european, has been broadened in order to put an end to forced marriages regarded as a harmful cultural practice which represents a form of gender-based violence. legal instruments have been adopted that highlight the importance of the participation of different states in enacting laws that prevent the violation of rights arising from this practice (vidal gallardo, 2016). within the framework of the united nations organization (from this point foward, un), various instruments have been adopted that recognize forced marriage as a manifestation of discrimination against women. in these instruments there has been a significant evolution recognizing the right to celebrate a marriage with the free and full consent of the contracting parties, coming to value the practice of forced marriage as a discrimination against women to finally be considered an act of gender violence (trapero barreales, 2016) and a form of human trafficking (warsaw convention, 2005, directive 2011/36/eu). most of these legal instruments have been urging the state the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 3 maria barcons campmajó authorities to adopt adequate measures for the prevention of forced marriage as well as for the protection and assistance towards those who have been victims (torres rosell, 2015). 2.1. the right to marry with complete and free consent there are various dispositions on human rights that apply to forced marriage, provisions that regulate aspects related to age, consent, and equality between both parties and women’s rights. the universal declaration on human rights (udhr) from the 10 of december of 1948, in its article, it clearly states the following: 1. men and women, starting from the age of consent, have the right, without restriction on grounds of race, nationality or religion, to marry and found a family, and enjoy equal rights in marriage, during marriage and in marriage as well as in case of dissolution of the marriage. 2. only through free and full consent of the future spouses can the marriage be contracted. 3. the family is the natural and fundamental element of society and is entitled to the protection of society and the state. marriage is recognized as a right in an environment in which equality between women and men govern, therefore, it is assumed that the future wife is an autonomous subject and that their consent is free and full, requirements that in cases of forced marriages are not fulfilled because of the coercion it entails (torres rosell, 2015, p. 834). the convention on consent to marriage, minimum age for marriage and registration of marriages (art. 1, 2 y 3)2 provides that marriage cannot be contracted legally without the full and free consent between both parties, expressed by the former in person, after the required publicity, before the competent authority to formalize the marriage and witnesses, in accordance with the law (ast.1) and adds that the states will adopt the necessary legal mesures in order to determine the minimal age for marriage (art.2). therefore, it reiterates that marriages must be contracted freely and with the full consent of both parties, requirements that forced marriages violate. the recommendation regarding consent for marriage, the minimal age to marry and the register of marriages (1965),3 emphasizes, once again, on the provisions of the aforementioned texts regarding marriage with full and free consent of both parties and the minimum age for marriage. in its first principle, it establishes that: a) marriage cannot be legally contracted without the full and free consent of both parties, expressed by them in person, after due publicity, before the competent authority to formalize the marriage, and witnesses, in accordance 2 aproved on the 7th of november of 1962 by the united nations general assembly. 3 resolution 2018(xx), from the 1st of november of 1965. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 4 forced marriages in europe: a form of gender-based violence and violation of human rights with the law. b) only when the competent authorities are satisfied that each of the parties has expressed their full and free consent before a competent authority, in the presence of witnesses and in the manner prescribed by law, there shall be granted permission to marry on the basis of power, without having subsequently withdrawn it. the same thing is sustained by the international pacts of 1966, both norms with binding force. the international covenant on civil and political rights (art. 23.2, 23.3, 23.4) recognizes the right of both the man and the woman to get married, adding that this shall not be celebrated without the free and full consent of both parties: “the right of men and women of marriageable age to marry and to found a family shall be recognized” (art. 23.2). the international covenant on economic, social and cultural rights4 establishes that marriage must be celebrated with the free consent of the future spouses. also, the hague convention on celebration and recognition of the validity of marriages from the 14 of march of 1978, establishes in article 11, that a state will only be able to refuse to recognize the validity of a marriage if, according to the law of that state, one of the spouses, at the time of the marriage, among others, had not freely consented to the marriage (art.11.5). furthermore, forced marriages have also been defined as a form of slavery by the un, as is also the case in regional systems of human rights and human trafficking, reflected in the supplementary convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery (september 7, 1956) in the convention there is established the commitment of states to prescribe appropriate minimum ages for marriage and to encourage the adoption of a procedure that allows the spouses to freely express their consent to marriage before the competent authority. 2.2. the right to a life free from gender violence in this context of measures adopted in the fight against the violation of human rights and, specifically, women’s rights, we must highlight two fundamental norms adopted by the un: the convention on the elimination of all forms of discrimination against women (cedaw) and the declaration on the elimination of violence against women. according to the cedaw, adopted in 1979, member states have the obligation to eliminate discrimination against women of all ages, including girls of a young age. the cedaw intention is to maintain and reinforce a series of women’s rights in order to eradicate the discriminations they suffer —in the area of political rights, family, work, 4 adopted on the 16 of december of 1966: part of the article 10.1 marriage must be entered with the free consent of the future spouses. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 5 maria barcons campmajó health, education, etc.— (facio, 2011) and the elimination of harmful cultural practices and stereotypes based on the inferiority of women (article 5). the convention is a binding treaty and, therefore, the states members are obliged to ensure that women experience the established rights (medina quiroga and nash rojas, 2003). this obligation, among others, requires that the states inform, periodically, to the committee cedaw5 about advances in the defense of the expected rights in the convention. the substantive (rather than formal) equality is a primary objective of cedaw, whici means that legislative and political changes, by themselves, are not sufficient to fulfill the state’s obligations under cedaw. these formal actions should be directed towards the real improvement of women’s equality. despite the obligatory nature of the cedaw, the absence of responsible mechanisms has represented a clear lack of consequences in the case of non-compliance. the introduction of the optional cedaw protocol (adopted in 1999) provided a way to address this lack of consequences, allowing the cedaw committee to hear petitions and complaints filed by private agents in the event of state failures to comply with the provisions of the convention and initiate investigations in cases of serious violations of women’s human rights. the convention does not explicitally specify forced marriages as a form of violence against women, but with its broad definition of “discrimination against women” it obligates states to modify or repeal the laws or customs that support this practice: with this convention, the term “discrimination against women” shall denote any distinction, exclusion or restriction based on sex that has the intention or result of impairing or nullifying the recognition, experience or exercise by women, regardless of their civil status, on the basis of equality between men and women, of fundamental human rights and freedom in the political, economic, social, cultural and civil spheres or in any other sphere (article 1). regarding marriage, the cedaw, in its article 16, provides that states parties shall take all appropriate measures to eliminate discrimination against women in all matters related to marriage and family relations and, in particular, shall ensure, under equal conditions between men and women: the same right to marry; the same right to freely choose a spouse and enter into marriage only because of their free will and full consent; the same rights and responsibilities during the marriage and on the occasion, of their dissolution; the same rights and responsibilities as parents, whatever their marital status, in matters related to their children; in all cases, the interests of the children will be the primary consideration; the same rights to decide freely and responsibly the number of their children and the interval between births and to have access to information, education and the means 5 the committee for the elimination of descrimination agaisnt (cedaw) is the authority composed by independent experts that oversee the implementation of the convention on the elimination of all forms of discrimination against women. web page available at: https://www.ohchr.org/sp/hrbodies/cedaw/pages/ cedawindex.aspx the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 6 forced marriages in europe: a form of gender-based violence and violation of human rights that allow them to exercise these rights; the same rights and responsibilities with respect to the guardianship, custody and adoption of children, or similar institutions whenever these concepts exist in national legislation; in all cases, the interests of the children will be the primary consideration; the same personal rights as husband and wife, including the right to choose a family name, profession and occupation; the same rights to each one of the spouses in the matter of ownership, purchases, management, administration, enjoyment and disposition of goods, both free of charge and for a valuable consideration. this precept recognizes that states must also prevent and fight against discrimination that occur within the family. from this point of view, it is “the first convention to extend the realisation of women’s human rights to the private sphere, considering in the same level, the violations of human rights that occur in the public space and those that take place in the private area” (vargas gallego, 2014, p. 1). in the same article 16 it is provided that both women and men have the same right to marry and to freely choose spouses and enter into marriage with free and full consent. “in cases of forced marriages, the concept of “consent” as well as autonomy, is controversial because it is difficult to know to what extent the consent has been full and free or on the contrary has coerced and / or threatened the woman in question” (torres rosell, 2015, p. 833). the committee cedaw has promoted measures to eradicate the practice of forced marriage with various recommendations: the general recommendation no. 19 of the committee on the elimination of descrimination against women, confirms that: traditional attitudes according to which women are considered subordinate or attributed stereotyped functions, perpetuate the spread of practices that involve violence or coercion, such as mistreatment in the family, forced marriages or murder due to inadequate skills, attacks with acid and female circumcision. these prejudices and practices sometimes even justify violence against women as a form of protection or domination. the effect of such violence on their physical and mental integrity is to deprive them of the effective enjoyment, exercise and even knowledge of their human rights and fundamental freedom. while this observation emphasizes on real violence or threats of violence, its basic consequences contribute to keeping women subordinate, a low participation in politics and their lower level of education and training as well as employment opportunities. according to maría angeles barrère unzueta (2008, p. 34)., the recommendation no. 19 of the cedaw: acquires revolutionary overtones since, through it, the juridical-political instances have to admit that there is a phenomenon of violence that cannot be tackled by appealing to a concept of equality referred to the mere exercise of individual rights in reference to a concept of discrimination based on comparative logic (as a mere individualistic rupture of equal treatment). the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 7 maria barcons campmajó the concept of discrimination thus enters into the interpretative scheme of patriarchy in which violence against women would be the most obvious expression of structural power relations that are not confrontable with schemes on individual rights […]. the focus of attention shifts, then, from rights to power and / or to the relations and legal structures of subordination. besides, there has been a specific mention regarding marriage, particularily in the general recommendation no.21 from the committee on the elimination of discrimination against women (1994), about equality within marriage and in the family sphere, in article 16 it is stated that: 1. states shall take all appropriate measures to eliminate discrimination against women in all matters related to marriage and family relations and, in particular, shall ensure, on equal terms with men: a) the right to marry; b) the right to freely choose a spouse and to marry only by their free will and with their full consent. lastly, it is important to mention the general recommendation no. 35 on genderbased violence against women,6 for which there has been an update of the general recommendation no. 19, adopted by the cedaw committee in july 2017. this recommendation requires states to repeal “provisions that allow, tolerate or condone forms of gender-based violence against women, including child or forced marriage and other harmful practices” (paragraph 29.c.i). the declaration on the elimination of violence against women, from december 20, 1993, is the first norm that expressly recognizes that violence against women constitutes a violation of human rights and fundamental freedom and prevents women from having a total or partial enjoyment of such rights and freedoms (right to life, right to equality, right to freedom and security of the person, right to equal protection before the law, right to be free from all forms of discrimination; right to the highest degree of physical and mental health that can be achieved, the right to fair and favorable work conditions, the right not to be subjected to torture, or other cruel, inhuman or degrading treatments or punishment). the definition of violence against women that is established is broad and although it does not expressly refer to forced marriage, it can be understood that this practice is included in the expression “other traditional practices harmful to women”. 3. forced marriages as a form of gender-based violence 3.1. the legal instruments of the eu the european union has addressed the problem of forced marriages from a double lens: considering it a form of human trafficking and as a manifestation of gender-based violence. 6 web page: http://www.acnur.org/fileadmin/documentos/bdl/2017/11405.pdf the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 8 forced marriages in europe: a form of gender-based violence and violation of human rights the charter of fundamental rights of the european union is the instrument in which the right to non-discrimination based on sex is specifically enshrined, forcing states (article 23) to guarantee equality between men and women in all the areas. in this regard, the european union guidelines on violence against women and girls and combating all forms of discrimination against them establish that violence against women and girls includes forced marriage or child marriage perpetrated or tolerated by the state.7 the directive 2012/29/eu establishing minimum standards on the rights, support and protection of victims of crime obliges eu member states to ensure that victims of crime receive the adequate information and support. it includes forced marriage as a form of gender violence and, therefore, it is understood that victims require special support and protection due to the high risk of secondary and repeated victimization, intimidation and reprisals related to this type of violence. it also recognizes special protection measures for victims of human trafficking, “human trafficking, slavery and different forms of harmful practices, such as forced marriages.” victims have different needs that must be met before, during and after the criminal process, in order to fully recover from the consequences of the crime committed: the need for recognition and to be treated with respect and dignity, the need to be protected and supported, to access justice and obtain compensation, an effective one for the damages suffered. the fact is though, that many of these needs were not sufficiently covered in the judicial systems of the member states, so the european commission presents a legislative package with minimum legal provisions to give them an adequate response in their national legislations (garcía rodríguez, 2016). the directive 2011/36/ue of the european parliament and of the council of 5 april 2011 on preventing and combating trafficking in human beings and protecting its victims establishes forced marriage as a form of human trafficking as well as the minimum standards that should be applied to the entire european union in relation to the prevention and fight against it. it also foresees provisions to assist and protect victims and adopts a comprehensive and human rights approach. according to carolina villacampa estiarte (2011, p. 1), what is most relevant about this directive guideline is that: it represents the culmination of a long process of change in the union’s policy on human trafficking, which began already before the entry and 7 european union guidelines on violence agaisnt women and girls and combating all forms of discrimination agaisnt them, annex, 1, p. 14, in which it is established that “violence against women and girls includes, but is not restricted to, forms of physical, sexual and psychological violence (a) occurring within the family (including prenatal selection based on the sex of the foetus (except where medically necessary) and systematic neglect of infant girls; forced marriage; early marriage […] (c) violence against women and girls covers all the acts listed above whether or not perpetrated or condoned by the state”. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 9 maria barcons campmajó application of the treaty of lisbon. the new approach of the union calls for a victim-centered treatment, which places the human rights of the victims of trafficking at the epicenter in the treatment of this problem. the directive of recognition8 (2011/95/ue), which defines the people who need international protection and establishes their rights and duties, enumerates persecution for gender reasons among the possible acts of persecution in article 9. it is understood that the concept includes forced marriage, although it is not expressly mentioned in the directive. the directive on the right to family reunification (2003/86/ec), which regulates the right of third-country nationals residing in an eu member state to take their family members, contains specific measures to prevent forced marriage 3.2. the council of europe: resolutions and istanbul convention the convention for the protection of human rights and fundamental freedoms prohibits the discrimination of rejoicing all rights and freedoms recognized in the treaty (article 14). the committee of ministers from the state members of the council of europe, in 2002, approved recommendation no. 5 on the protection of women against violence. it defines violence against women as any violent act based on gender, including crimes perpetrated in the name of honor, female genital mutilation and other traditional harmful practices, such as forced marriages. states are recommended to review their legislation and policies in order to guarantee women the recognition, enjoyment, exercise and protection of their human rights and fundamental freedoms and to exercise due diligence to prevent, investigate and punish such acts of violence. the parliamentary assembly of the council of europe, in 2005, urged the state member to raise the mandatory age in which one can marry to eighteen years with the aim of facilitating the prevention, detection and declaration of nullity of forced marriages, applying justice to people who commit acts aimed at carrying out these celebrations. it is recommended that state members carry out an analysis of forced marriages within their territory to create state strategies and take practical measures.9 8 directive 2011/95/ue from the european parliament and council, 13th of december 2011, for which there are established relative norms to the requirements for the recognition of third-country nationals or stateless individuals as beneficiaries of international protection, to a fair status for refugees or for people entitled to subsidiary protection and to the content of the protection granted. 9 “this report highlights the importance of the resolution of the general assembly of the united nations 843 (ix), of 1954, which declares certain customs, old laws and practices regarding marriage and family incompatible with the principles recognized in the charter of the united nations and the universal declaration of human rights, considering that such marriages should not take place in a society like ours where human rights and the rights of the child are protected. that is why the parliamentary assembly of the council of europe agrees on this point with the considerations approved in the united nations convention on consent to marry, the minimum age and marriage registration of the year 1962” (briones martínez, 2009, p. 9). the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 10 forced marriages in europe: a form of gender-based violence and violation of human rights there should also be mention of the council of europe convention on action against trafficking in human beings, which although does not expressly include forced marriage as a form of trafficking, it is still in our interest because it creates the council of group of experts on action against trafficking in human beings (greta), which, in 2018, did in fact publish a report on the spanish state where it mentions forced marriage. in the greta report, it is positively valued that “reforms of criminal legislation have broadened the definition of trafficking to include other forms of exploitation, such as forced marriage” (greta, 2018, p.53). with regard to under-age victims, the report emphasizes: the need to improve their identification and the assistance they receive, paying special attention to unaccompanied and separated minors as well as romanian minors. the recommended measures include the creation of sufficient admission resources for alleged child victims of trafficking and the training of police, social workers and other actors on how to identify child victims (greta, 2018, p. 56). in april 2009, the parliamentary assembly of the council of europe adopted a resolution urging the state members to adapt their national legislation to prohibit and sanction forced marriages and any other form of violation of human rights for gender reasons. in may 2009, the committee on equal opportunities for women and men from the parliamentary assembly of the council of europe approved a draft resolution on the need to combat the so-called “crimes of honor”. finally, resolution 1681 was approved calling on the state members to fight against this practice, due to the fact that there have been cases of crimes of honor in europe, in communities or descendants of immigrants from countries in which it is conceived as an ancestral custom.10 according to resolution 1468 (2005) from the parliamentary assembly of the council of europe on forced marriages and child marriages, forced marriage is “the union of two individuals in which at least one of them has not given their free and full consent to marry”. the convention on preventing and combating violence against women and domestic violence (istanbul convention), approved on april seventh 2011, is the first binding instrument on this subject in europe and is the broadest international treaty regarding the various forms of violence against women. the convention is the main document that addresses the issue of forced marriages in europe (european union agency for fundamental rights, 2014). 10 resolution 1681 (2009), about the urgent necessity to combat the so called crimes of honor. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 11 maria barcons campmajó the importance of this convention: comes from the fact that it is the first legally binding instrument on the subject of violence against women and domestic violence at a european level, and it is the most far-reaching international treaty to face this serious violation of human rights, establishing a zero tolerance with respect to violence against women. this is recognized in the convention as a violation of human rights and as a form of discrimination, considering the states responsible if they do not respond adequately and effectively, whether due to non-compliance or abandonment of their institutional obligations (gil ruiz, 2014: p. 14). “if we were to summarize its objectives […] it could be affirmed, using a preamble expression, that the istanbul convention (aspires) to create a europe free of violence against women and domestic violence” (lousada arochena, 2014: p. 42). unlike other international instruments, the istanbul convention explicitly states in article 3.f) “women” includes girls under the age of 18. and the article 4.3 indicate that the implementation of the convention, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status. the definition of violence against women in the convention is broad and includes, for the first time, in the international arena, economic damage. violence against women is defined as: all acts of violence based on gender that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life (article 3.a). moreover, “domestic violence” is defined as a relationship without convivence: “[…] all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim” (article 3.b). it should be highlighted that the istanbul convention includes, in its article 32, the obligation of the states parties to establish legislative and other measures related to the civil consequences of forced marriages: “parties shall take the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without financial or administrative burden placed on the victim” (art. 32 istanbul convention). the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 12 forced marriages in europe: a form of gender-based violence and violation of human rights article 59.4 specifies the obligation of states parties to articulate legislative and other measures for victims to regain their resident status in case of loss due to forced marriage: the parties shall adopt legislative or other measures necessary for victims of forced marriages taken to another country for the purpose of celebrating said marriage, and who lose, as a result, their resident status in the country in which they habitually reside, to recover this statute (art. 59.4. istanbul convention). article 37 of the istanbul convention11 requires the criminalization of the intentional conduct of forcing a person to marry. “forced marriage is a serious violation of human rights. it not only violates the right to marry, but it can also expose the victims to different forms of violence and harm, including violations of the right to a person’s integrity and the deprivation of liberty.” article 37 on forced marriages provides that: 1. parties shall adopt the legislative or other measures necessary to criminalize the act, when committed intentionally, to compel an adult or a minor to marry. 2. parties shall adopt the legislative or other measures necessary to criminalize the act, when committed intentionally, of deceiving an adult or minor to take such individual to the territory of a state other than the one in which the person resides with the intention of forcing said person to marry (istanbul convention, 2011). the convention explicitly defines the diferent manifestations of violence against women that must be sanctioned as crimes by the states: psychological violence (article 33); stalking (article 34); physical violence (article 35); sexual violence and rape (article 36); forced marriage (article 37); female genital mutilation (article 38); forced abortion and forced sterilisation (article 39); sexual harassment (article 40); aiding or abetting an attempt (article 41). besides structural measures, the convention includes an exhaustive list of obligations to protect women from violence, support victims and criminally prosecute 11 “article 32 – civil consequences of forced marriages parties shall take the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim. article 37 – forced marriage (1) parties shall take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised. (2) parties shall take the necessary legislative or other measures to ensure that the intentional conduct of luring an adult or a child to the territory of a party or state other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised. article 59 – residence status (4) parties shall take the necessary legislative or other measures to ensure that victims of forced marriage brought into another country for the purpose of the marriage and who, as a result, have lost their residence status in the country where they habitually reside, may regain this status” the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 13 maria barcons campmajó perpetrators. these obligations include: ensure that victims receive adequate and timely information on available support services and legal measures in a language they understand (article 19); ensure that victims have access to services facilitating their recovery from violence. these measures should include, when necessary, services such as legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment. ensure that victims have access to health care and social services and that services are adequately resourced and professionals are trained to assist victims and refer them to the appropriate service (article 20); provide or arrange for, in an adequate geographical distribution, immediate, short and long-term specialist support services to any victim (article 22); take the necessary legislative or other measures to provide for the setting-up of appropriate, easily accessible shelters in sufficient numbers to provide safe accommodation for and to reach out pro-actively to victims, especially women and their children (article 23); setting up state-wide round-the-clock (24/7) telephone helplines free of charge to provide advice to callers, confidentially or with due regard for their anonymity (article 24); setting up of appropriate, easily accessible rape crisis or sexual violence referral centres for victims in sufficient numbers to provide for medical and forensic examination, trauma support and counselling for victims (article 25); provide victims with adequate civil remedies against the perpetrator (article 29); compensations (artículo 30); la introducción de las figuras penales anteriormente mencionadas, que deben ser sancionadas con penas efectivas, proporcionadas y disuasorias (article 45); immediate response, prevention and protection (article 50); risk assessment and risck management (article 51) emergencing barring orders (article 52) and restraining or protection orders (article 53); establish specific protection measures for victims during investigations and judicial processes, including being informed of the development of the investigation, their right to be heard and to present their points of view and concerns, protection of their privacy and image, avoiding contact between victims and aggressors in the seats of the courts, security forces, etc. (article 56); with regard to asylum applications based on gender, which would include forced marriages, article 60 of the convention specifies that legislative or other measures necessary shall be adopted in order to ensure that violence against women based on gender can be recognized as a form of persecution within the meaning of article 1. a 82) of the convention, relative to the status of refugees in 1951 or as a form of serious harm that gives rise to supplementary or subsidiary protection (article 60.1). in article 60.3 it is added that gender-sensitive reception procedures and support services for asylum-seekers should be developed, as well as gender-based guidelines and gender-sensitive asylum procedures, including those related to obtaining refugee status and to the application of international protection (art. 60.3). the convention provides for provisions that facilitate extraterritorial application with the aim of combating violence practices (art. 44: through the principle of territoriality, nationality or residence in the territory, of the author or the victim) and is arranged that the applicable sanctions, in addition to being respectful to the principle of proportionality as well as effective and dissuasive of this type of conduct, must be penances that allow extradition. and there is also a catalog of aggravating circumstances applicable to this catalog of crimes. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 14 forced marriages in europe: a form of gender-based violence and violation of human rights 3.3. normative heterogeneity in the state members forced marriage is criminalized in belgium,12 bulgaria,13 croatia,14 cyprus,15 denmark,16 germany,17 spain,18 luxembourg,19 malta,20 portugal,21 slovenia,22 sweden,23 austria24 and united kingdom.25 in the united kingdom, the law which grants right to found a family of 1996 (modified by article 120 regarding the law of behavior, crime and antisocial crime of 2014) also criminalizes the violation of a protection order on forced marriage. in spain, germany and sweden, the regulations that penalize forced marriage include, within their scope, the criminal responsibility of whoever forces another person to leave the country (spain) and/or enter the country (germany) or any other country (sweden) for the purpose of forcing a person to marry. the provisions of the civil law in all state members establish clear conditions to guarantee the validity of marriages (for example, specific age thresholds and the ability to give fully informed consent). the national civil laws of the state members often declare the nullity of a marriage celebrated when the will of at least one of the parties is vitiated by a defect of consent. however, the circumstances that invalidate the consent vary according to said state members (european union agency for fundamental rights, 2014). the validity of a marriage can be affected by the lack of consent derived from physical coercion (including threats, physical violence, sexual violence and kidnapping) or psychological coercion (including pressure of various kinds, emotional blackmail, the confinement and confiscation of official documents) (european union agency for fundamental rights, 2014), or the lack of capacity to act as one or both parties, whether they are not of minimum age or due to psychosocial disabilities. 12 article 391 criminal code. 13 article 177 criminal code. 14 article 169 criminal code. 15 chapter 154 criminal code. 16 section 260 criminal code. 17 section 237 criminal code. 18 article 172 bis criminal code. 19 article 387 criminal code. 20 article 251g criminal code. 21 article 254-b criminal code. 22 article 132.a criminal code. 23 chapter 4 criminal code. 24 article 106a criminal code. 25 the law of behavior, crime and antisocial crime and united kingdom’s police forces of 2014, section 121 (england and whales) and 122 (scotland); section 16 of the la won trafficking and explotation of (criminal justice and support for victims) (north of ireland) 2015 (north of ireland). the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 15 maria barcons campmajó even though not all sate members penalize forced marriages, the majority (with the exception of croatia, finland, hungary and ireland) establish specific civil rights norms that grant the possibility that the spouses refuse a marriage celebrated under duress and / or coercion, threat and violence (psaila et al., 2016). with regard to age, state members are also bound by international instruments that prohibit child marriage. for example, in article 2 of the convention on marriage consent, the minimum age for marriage and the marriage registry appeals to state parties to specify in their national legislation the minimum age for marriage. thus, national civil law regulations stipulate that a marriage cannot be celebrated by a person under the age of 18 and that only in specific cases and under certain conditions (for example, the consent of the parents and/or the authorization of a judge), minors under 18 can get married. in most of the state members where there is such an exception, it only applies to children between 16 and 18 years of age. in a number of state members, there have been implemented policies specifically addressing forced marriage, including policies to assist victims, prevention and awarenessraising. germany, denmark, finland, irland, latvia, the netherlands, poland, romania, spain, sweden and united kingdom are the states that have developed public policies (psaila et al., 2016). initiatives in support of victims include activities aimed at providing adequate help and psychological assistance to young women, (for example in educational centers and social services). such actions include public help-lines such as the one created by the administrative council of the östergötland county26 or hotlines that provide advice to victims and professionals working in cases of forced marriage such as the one created by the “forced marriage unit” (fmu) in the united kingdom. in denmark, they have carried out activities focused on prevention, including the training of professionals from the private and public sectors, support and advice to mothers and fathers and their children (especially from ethnic minorities) and awareness campaigns aimed at religious communities. in germany they have developed information campaigns, seminars and conferences to initiate a public debate, raise awareness and educate society in general about forced marriage.27 4. conclusions forced marriage is a crime condemned by the international and european human rights law: it violates the right to freely marry and the right to live a life free of gender violence. 26 danish ‘national strategy against honour-related conflicts a targeted effort against honour related conflicts’ of the ministry for children, equal treatment, integration and social affairs. see administrative county board for östergötland final report “married against their will”, 2015. 27 for example, the campain ‘their liberty, their honor’, developed by the ministry of integration in north rhine-westphalia (germany) in cooperation with several migrant organizations. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 16 forced marriages in europe: a form of gender-based violence and violation of human rights forced marriage is recognized as a form of violation of human rights, discriminatition against women and children (young girls) and a form of gender-based violence (gbv) which women and young girls suffer. in numerous international treaties and in other supranational documents, this practice is perceived as a violation against people’s dignity and as an attempt against fundamental rights such as freedom and equality. forced marriages is a form of gender-based violence, as a practice that constitutes another form of violence against women in patriarchal societies where women have less value and are considered as an object of property of their husbands and families (igareda gonzález, 2017). it is true that forced marriages occur both against women and men, but the number of female victims is disproportionally higher, since it is estimated that around 85 per cent of victims of forced marriages are women and girls (heaton, mccallum and jogi, 2009). the istanbul convention (2011), constitutes the first binding instrument on this subject in europe and is the broadest international treaty in relation to the various forms of violence against women. the convention constitutes the main document that addresses the issue of forced marriages in europe. definitions and interpretations of forced marriages in criminal provisions vary between state members but contain several common elements, such as the concepts of force, violence or coercion (belgiuma, cyprus, denmark, germany, malta, portugal, eslovenia, spain, sweden and united kingdom). in other state members, forced marriage can be punished only as long as it constitutes another crime, such as rape, attempted rape, physical violence, psychological or sexual violence, injury, ill-treatment, assault, illegal detention, violation of freedom and integrity, psychological coercion, sexual coercion, kidnapping, crimes against people, sexual integrity or crime of honor (european union agency for fundamental rights, 2014). references barrère unzueta, maría ángeles (2008). “género, discriminación y violencia contra las mujeres”, en laurenzo, patricia et. al (coords.), género, violencia y derecho, valencia: tirant lo blanch, pp. 27-47. bodelón gonzález, encarna (2005). “justicia feminista: las políticas de derechos y de igualdad compleja en el ámbito local, en de la fuente, maría (dir.), 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union agency for fundamnetal rights(fra) (2014). addressing forced marriage in the eu: legal provisions and promising practices. luxembourg: publications office of the european union. available at: https://fra. europa.eu/en/publication/2014/addressing-forced-marriage-eu-legal-provisionsand-promising-practices facio, alda (2011). “viena 1993, cuando las mujeres nos hicimos humanas”. pensamiento iberoamericano, 9, pp. 3-20. fraser, nancy (2008). “la justicia social en la era de la política de identidad: redistribución, reconocimiento y participación”, revista de trabajo, 6, pp. 83-99. garcía rodríguez, manuel josé (2016). “el nuevo estatuto de las víctimas del delito en el proceso penal según la directiva europea 2012/29/ue, de 25 de octubre, y su transposición al ordenamiento jurídico español”, revista electrónica de ciencia penal y criminología, 18-24, pp.1-84. available at: http://criminet.ugr. es/recpc/18/recpc18-24.pdf gil ruiz, juana maría (2014). “la violencia institucional de 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(2014). “el derecho fundamental a vivir sin violencia de género”, anales de la cátedra francisco suárez, 48, pp. 31-48. available at: http://revistaseug.ugr.es/index.php/acfs/article/view/2779 medina quiroga, cecilia y nash rojas, claudio (2003). manual de derecho internacional de los derechos humanos. santiago de chile: centro de documentación defensoría penal pública. the age of human rights journal, 14 (june 2020) pp. 1-18 issn: 2340-9592 doi: 10.17561/tahrj.v14.5474 18 forced marriages in europe: a form of gender-based violence and violation of human rights psaila, emma et al. (2016). forced marriage from a gender perspective, directorategeneral for internal policies, policy department c: citizens’ rights and constitutional affairs. available at: https://www.europarl.europa.eu/thinktank/en/ document.html?reference=ipol_stu(2016)556926 torres rosell, núria (2015). “matrimonio forzado. aproximación fenomenológica y análisis de los procesos de incriminación”, estudios penales y criminológicos, 35, pp. 831-917. available at: http://www.usc.es/revistas/index.php/epc/article/ view/2703/3269 trapero barreales, maría a. (2016). matrimonios ilegales y derecho penal. bigamia, matrimonio inválido, matrimonio de conveniencia, matrimonio forzado y matrimonio precoz, valencia: tirant lo blanch. vargas gallego, ana isabel (2014). sobre los matrimonios forzados, revista de jurisprudencia, 2, enero 2014, pp. 6-10. available at: https://elderecho.com/sobrelos-matrimonios-forzados vidal gallardo, maría mercedes (2016). “ilegalidad del matrimonio forzado como manifestación de una forma de violencia de género ley orgánica 1/2015, de 30 de marzo, por la que se modifica la ley orgánica 10/1995, de 23 de noviembre, del código penal”, revista general de derecho canónico y derecho eclesiástico del estado, 40, pp. 1-32. villacampa estiarte, carolina (2011). “la nueva directiva europea relativa a la prevención y la lucha contra la trata de seres humanos y a la protección de las víctimas. ¿cambio de rumbo de la política de la unión en materia de trata de seres humanos?”, revista electrónica de ciencia penal y criminología, 13-14, pp. 1-52. available at: http://criminet.ugr.es/recpc/13/recpc13-14.pdf received: july 10th 2019 accepted: october 29th 2019 forced marriages in europe: a form of gender-based violence and violation of human rights abstract keywords summary 1. introduction 2. forced marriages as a violation of human rights 2.1. the right to marry with complete and free consent 2.2. the right to a life free from gender violence 3. forced marriages as a form of gender-based violence 3.1. the legal instruments of the eu 3.2. the council of europe: resolutions and istanbul convention 3.3. normative heterogeneity in the state members 4. conclusions references the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 105 performative hate speech acts. perlocutionary and illocutionary understandings in international human rights law alessandro di rosa1 abstract: the first part of this work analyses the concept of hate speech and its legal-philosophical foundations linked to freedom of speech, through the use of tools provided by current trends in the theory of performativity. the second part, in turn, aims to suggest two possible perspectives on the translation of these philosophical demands into positive legislation within human rights law: the first one based on a liberal conception of freedom as non-interference and a perlocutionary understanding of performative speech acts; the second one adopting a neo-republican interpretation of freedom as non-domination and an illocutionary understanding of speech acts. finally, the work aims to critically sift through the application of the theory of performativity to the legal definitions that hate speech has acquired within this context. keywords: hate speech; freedom of speech; performativity; non-domination. summary: i. hate speech: defining issues; ii. from speech acts theory to contemporary theory of performativity; iii. hate speech: perlocutionary or illocutionary?; iii.1. a liberal model of freedom, human rights and performativity: performatives as perlocutionary speech-plus acts; iii.2. a neo-republican model of freedom, human rights and performativity: performatives as illocutionary speech acts; iii.3. perlocutionary and illocutionary accounts: drawing a line between criminal and civil sanctions. i. hate speech: defining issues this work aims to analyse feasible applications of the theory of performativity to the various definitions that hate speech has acquired under international human rights law. within this framework, a structure coherent with the dualist human rights analysis method (peces-barba martínez 1995; ansuátegui roig 2002; barranco avilés 2009; de asís roig 2010) will be followed. this implies the need to analyse the philosophical issues underlying hate speech and freedom of expression, on the one hand, and their reflection in positive law, on the other. therefore, this paragraph will be dedicated to the analysis of the concept of hate speech. the term ‘hate speech’ indicates a legal category that originates from a reflection on the nature of speech and action in the us case-law, at the beginning of the 20th century, and which has recently spread to europe (ziccardi 2016, 11-59). however, the main issue is to be found in the difficulty in drawing a definition, insofar as hate speech is 1 alessandro di rosa, phd candidate in law (philosophy of law) and advanced studies in human rights, double title co-tutorship phd programme, university of parma universidad carlos iii de madrid, spain (alessandro.dirosa@unipr.it). i would like to express all my gratitude to my friend julian d. grass for the mothertongue english copyediting of this paper. alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 106 usually intended as a set of non-homogeneous behaviours (parekh 2012, 40). indeed, there is no unique and universal definition2, partly because it is the result of complicated legislative activity and the elaboration of international normative standards, which have materialised in the adoption of several declarations contributing to – and competing in – its understanding3. a useful research methodology to obtain a first draft of the definition of hate speech could be that of a historical approach observing how this concept has progressively emerged within the international normative context (see farror 1996; gascón cuenca 2016). without it being possible to dwell on this analytically, it is essential to recall the universal declaration of human rights (1948), in particular: art. 7 (protection from discrimination and incitement to discrimination); art. 19 (freedom of expression); art. 29 (statutory reservation and respect for others’ rights); and art. 30 (prohibition of the abuse of right). these articles bear witness to the commitment, at an international level, to prevent the abuse of freedom of expression. for the purpose of the definition of hate speech, the international covenant on civil and political rights (1966) is of paramount importance, with its art. 20.2 setting forth a prohibition of «any advocacy of national, racial and religious hatred which constitutes incitement to discrimination, hostility or violence». furthermore, it is worth underlining that the covenant makes it mandatory for member states to prohibit hate speech not only in public but also in private. moreover, the convention on the elimination of all forms of racial discrimination makes a distinction between racial discrimination (art. 1) and racial hate speech (art. 4), the latter defined as a «dissemination of ideas of racial superiority or justification or advocacy of racial hatred or discrimination». the convention requires the establishment of criminal offences of racial hate speech by all member states, not only for incitement but also for sheer dissemination of ideas of racial superiority4. further, the committee established by the convention (cerd) defines hate speech in terms of a genuine abuse of freedom of expression5. at a regional-european level, it is worth considering the contribution of the council of europe in defining hate speech. the european convention on human rights does 2 un human rights council, 28th session, report of the special rapporteur on minority issues, 5 january 2015, a/hrc/28/64. 3 for an overview of the evolutionary trajectory of the treatment of hate speech, see mchangama 2015. 4 however, it is worth underlying that some states have refused to interpret the locution «an offence punishable by law» in terms of the need for criminal sanctions (not only civil or administrative); anyway, to such an issue has answered the committee in the 1985 report on art. 4, entitled positive measures designed to eradicate all incitement to, or acts of racial discrimination, implementation of the international convention on the elimination of all forms of racial discrimination, u.n. doc. cerd/2, 1985, stating that «the imposition of civil liability falls short of the requirement of article 4 to declare certain acts or activities as an offence punishable by law», p. 185 (farror 1996, 52). 5 report of the committee on the elimination of racial discrimination, u.n. gaor, 42nd session, sup. no. 18, p. 69, u.n. doc. a/42/18, 1987. performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 107 not refer expressely to hate speech; however, the european court of human rights, stemming from art. 10 (freedom of expression) and art. 17 (prohibition of the abuse of rights), has easily imposed limits on freedom of expression when it materialises in acts of hate speech (farror 1996, 62 e 76-77; see caruso 2011 e 2017; spigno 2018, 473), regardless of it being in public or in private. council of europe recommendation no. 20 of october 30th 1997 defines hate speech as «all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin»6. the provision ends with an inclusive formula, adding «other forms of hatred» as possible situations disseminating forms of discrimination. this allows the claim that hate speech has an open definition subject to actual situation analysis and possible further extensions on grounds of new discriminations arising against specific minorities7, such as those based on sexual orientation (see weber 2009, 4). besides, principle no. 2 of the recommendation requires that governments should adopt civil, criminal and administrative legal measures, which could facilitate the judiciary to the necessary balancing between freedom of expression with human dignity and the protection of others’ reputation and rights. when it comes to the european union, the eu charter of fundamental rights (nizza charter, 2000-2007) also contains a rather broad notion of discrimination, referring to categories such as «sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation» (art. 21). thus, a potential notion of hate speech emerging from the european union provisions would meet with a greater number of definitions based on categories which integrate the definition of discrimination itself, but within the limits of the lack of the “open definition”, the latter emerging from council of europe recommendation no. 20. nevertheless, it is a provision that would appear to confirm the plurality of definitions that hate speech has. in 2008, the council of the european union issued a framework decision against racism and xenophobia, requiring that all eu member states criminalise conducts intended for public incitement of hatred against a group (or a member of that group) identified on the basis of ethnical belonging, skin colour, national or ethnical origin8. furthermore, in its 2015 resolution on the situation of fundamental rights within the european union, the european parliament explicitly refers to hate speech based on prejudice on grounds of disability, sexual orientation or gender identity9. 6 council of europe, committee of ministers, recommendation no. r (97) 20, of the committee of ministers to member states on “hate speech”, adopted by the committee of ministers on 30 october 1997 at the 607th meeting of the ministers’ deputies, scope, section 2. 7 the un committee on the elimination of racial discrimination recognised that within the council of europe the definition of hate speech is much broader: see un human rights council, 28th session, report of the special rapporteur on minority issues, p. 12. 8 council framework decision 2008/913/jai of 28 november 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. 9 european parliament, situation of fundamental rights in the eu (2013-2014), resolution c 316/3, n. 107. alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 108 a general definition of hate speech, based on the outcome of international and regional provisions, could therefore be as proposed by alexander brown (brown 2015, 4-5; italics added): «at any rate, the overall impression created by these characterizations is of speech or other expressive conduct that is in some sense intimately connected with hatred of members of groups or classes of persons identified by certain ascriptive characteristics (e.g.s race, ethnicity, nationality, citizenship, origin of birth, war record, religion, sexual orientation, gender or transgender identity, disability, age, physical appearance), where this connection is exemplified by familiar tropes relating to hatred in the motive, content, or effect of the relevant speech or other expressive conduct». however, given the lack of unambiguous definitions at an international level, hate speech can be fully understood only through the analysis of the legal-philosophical debate (see heinze 2016). furthermore, as will be shown, two significantly different approaches to the definition of hate speech stemming from iccpr and icerd can be outlined on grounds of the theory of performativity (see §§ 2, 3). the aim of the following section, therefore, is precisely that of identifying possible tools in the theory to analyse the treatment of hate speech adopted by international human rights law. those tools will then be put into practice both with a liberal and a neo-republican uderstanding of freedom, in order to show the different outcomes that they could lead to. ii. from speech acts theory to contemporary theory of performativity a crucial issue related to the definition of hate speech is that of the means by which the hateful message is spread. indeed, hate speech is traditionally shared by means of expressive conducts which involve, but are not limited to, the use of voice. nevertheless, within the hate speech debate, a distinction between speech and action appears to lie behind the various positions authors have taken – at times explicitly, at times implicitly. this work will attempt to show how the theory of performativity could be useful in deconstructing the speech v. action distinction (brown 2015, 14, footnote; koltay 2013, 27; contra: barendt 2007, 78-81) within a neo-republican understanding of freedom as non-domination. the philosophical understandings of the distinctions between speech and action are quite variegated and underline the different approaches employed to endorse opposite solutions to hate speech issues. as alexander brown highlights, it is possible to identify two clusters of arguments aiming to discern “pure” speech from “other kinds” of speech (brown 2015, 14-15 footnote): 1) one cluster examines the distinction between «pure speech or mere speech» and «speech-conduct or speech-plus»10. when hate speech bans prohibit the latter, one 10 a good example of this is the fighting words doctrine, among the doctrines on the first amendment to the us constitution which is used by the supreme court starting from the case yinsky v. new hampshire, performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 109 does not question their compatibility with the constitutional guarantee of freedom of expression, which can be limited provided that it constitutes “something more” than mere speech (such a distinction, to my mind, lies behind the observations of those liberal thinkers who allow said limitation in some cases11); 2) the second cluster deals with the impossibility to differentiate between “pure” speech and “other kinds” of speech, which implies that every kind of speech is also an expressive conduct; nevertheless there are lawful and unlawful expressive conducts, the latter of which do not fall within the protection of freedom of expression (see sunstein 1993, 125; fish 1994, 124-126; marcus 2008, 1025-1059). regardless of the strategy adopted, both could lead either to any action falling within freedom of expression, or to the opposite solution: that is, that most discursive expressions cannot be told apart from actions and cannot fall within free speech classical logic (greenawalt 1989a, 79-163). for this reason, it is useful to conduct a study on the theory of performativity as a contemporary derivation from speech acts theory, which, according to the stance made in this paper, appears to be an essential tool to understand this issue clearly. as is widely known, speech acts theory dates back to the ‘60s, namely to the publication of john langshaw austin’s how to do things with words (austin 1962), with performativity becoming one of the «key-concepts» of pragmatics (conte 1994, 382). firstly, austin distinguished between constatives and performatives12. secondly, he made a further distinction between: a) locutionary acts, the action «of saying something»; b) illocutionary acts, focusing on the conventions that make it possible to perform acts «in saying something»; c) perlocutionary acts, which focus on the consequences of the action performed «by saying something» (austin 1962, 94-107). as to the differences between illocutionary and perlocutionary acts, austin maintains that the former have conventional consequences, while the latter produce material consequences. the production of either type does not bear on the intentional or unintentional character of the act: there could be intentional illocutionaries that do not 315 u.s. 568 (1942), whereby «fighting words» are understood in terms of those which, in just being uttered, cause a harm or tend to incite to a simultaneous «breach of the peace». 11 indeed, this is the argument recalled e.g. by emerson 1963, 880-881; equally, analysing emerson’s theses, see sánchez gonzález 1992, 31-33. 12 constatives are describing statements, whereas performatives are statements by which one performs an action (austin 1962, 60); the latter depend on the existence of conventions and non-linguistic rules (hornsby 2008, 904), even though distinguishing between the two is actually impossible, because of every constative also being a performative (austin 1962, 52). this has made philosophers claim that austin maintains the impossibility of distinguishing between speech and action (avramides 2001, 66; hornsby 1994, 187), in a refusal of cartesian philosophy (sbisà 2013, 76; see bracken 1994; heinze 2016, 137; gelber 2002, 50). alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 110 have positive outcomes, in the same way as there could be unintentional perlocutionaries that produce material consequences. the example that follows can clarify the difference between the two. in giving the order «shoot him!», the speaker is making an illocutionary speech act, which is giving an order based on conventional consequences brought about by language. yet the speaker could also produce material consequences, a perlocutionary use of speech, which amounts to the material effects of the speech act: that is, for the listener to be effectively persuaded to shoot13. both elements, in austin’s reflections, could come together with each speech act. however, one might analyse them as different features of language on which different stances on hate speech can be taken – this will be shown in the following interpretations of the speech acts theory, whereby illocutionary and perlocutionary acts come to be separated. indeed, the illocutionary level could be separated from the perlocutionary one in that a single speech act could fail to produce perlocutionary consequences and still work at the illocutionary level (zanghellini 2003, 467-468). after austin, john searle claimed that speech acts theory must only focus on illocutionary acts (searle 2001, 221; see searle 1965, 221-239; rabossi 1972; sbisà 2013, 39-40), which makes it possible to say that in his view the performative is reduced to illocutionary acts14. he then studies intentionality as an objective feature of language, underlining the role of social institutions, rules, conventions and contexts in the making of speech acts: that is to say, according to him, the meaning is the result of social practices (searle 2002, 142-155)15 and is not related only to what the speaker actually meant. thus, searle helps to draw on austin’s distinction in conceiving a theory of action through language; all speech acts, he says, are actions whose effects depend on social conventions. moreover, he clearly states that intentionality is a requisite for the performative, adding that while perlocutionary acts require physical action as well as intentionality, illocutionary acts are performed in their mere utterance (that is, intentionality is a self-sufficient criterion: illocutionaries do not depend on action). searle’s debate with jacques derrida (see nealon 2017, 1-5; alfino 1991, 143152; payne 1995, 5-6; norris 1982), following the publication of the latter’s signature, 13 however, this does not mean that the listener must actually shoot for the speech act to bring about perlocutionary effects: the material effects in this case are that the listener be effectively persuaded to shoot, not to actually shoot. one could be effectively persuaded to shoot (chemical substances in the brain actually change when that happens) and yet not shoot (i.e.: trying to do so, but the weapon does not work; trying to do so, but then getting distracted; actually doing so, but the weapon is fake; firstly getting convinced, but then changing one’s mind). philosophically and legally speaking, this makes sound difference. 14 moreover, searle links speech acts to a general theory of action, maintaining that speech acts are not «the point of intersection of a theory of language and a theory of action»: as opposed to this, «a theory of language is part of a theory of action» (searle 1969, 16), what truly makes it explicit that he too rejects cartesian philosophy, subscribing to a theory of knowledge in material form (smith 2012, 2). 15 indeed, searle argues for the existence of an «extra-linguistic institution» (searle 1989, 548) which gives speech acts their actual meaning. performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 111 event, context (derrida 1988), sheds light on the possibility of performatives always being the product of repetition beyond particular contexts (alfino 1991, 147-148), which, as derrida maintains, makes them acquire deep meanings depending on their «citationality» (derrida 1988, 6-18). what is useful about derrida’s «citationality» is that the particular context in which performatives are uttered, carry all the tracks of their previous uses in other contexts: that is to say, the meaning of a performative is a constant quote («citation») of other infinite speech acts. drawing on derrida’s work, contemporary scholars have introduced the notion of «echoing responsibility» (medina 2006, 140). this could refer to the responsibility of hate speakers in putting across a message that is composed of all the meanings that it has acquired within the practices of a particular society, thus becoming performative as in constructing social reality (see butler 1997). an example of this could be the meaning that the words «black» and «white» have acquired when associated with race issues and related verbal offences16. moreover, the contemporary use of the theory of performativity makes it possible to take into consideration social iterability, which would prevent the adoption of an individualistic approach in coming up with a legal answer to the issue of hate speech. social iterability outlines the effects of hate speech as not exclusively material and individual; rather, they are capable of transcending the particular context they originate in and insinuate themselves in social relationships, consequently contributing to their structuring based on the subordination of vulnerable subjects (see butler 1997, 150-152; loxley 2007, 134; loizidou 2007, 19). in brief, such an evolution of speech acts theory is what lies behind its «contemporary uses», the analysis of which can be helpful in describing the useful tools that the contemporary theory of performativity provides. indeed, after what has been described in philosophy of language as a «linguistic turn» (rorty 1967; colebrook 2010), which has given birth to speech acts theory, there emerges another defined as «performative turn» (medina 2010, 286-287), which has allowed a resurgence of speech acts theory within a new philosophical debate on the issue of action in normative, political and social terms. in this respect, the contemporary theory of performativity underlines a potentially harmful and offensive role of speech acts (martínez garcía 1999, 338): a highly relevant issue in the analysis of hate speech. furthermore, these issues could arguably go along with two different conceptions of liberty: a liberal and a neo-republican one, which, as will be shown, could account for different understandings of freedom of expression and hate speech. iii. hate speech: perlocutionary or illocutionary? the theoretical elements analysed so far constitute what can be defined as the philosophical foundations of the contemporary theory of performativity. such theory recalls speech act theory and relaunches it towards a “political” use. two different uses 16 as an example of the fact that race is a product of social construction, see the major works of the critical race theorists: crenshaw-gotanda-peller-thomas 1996; thomas-zanetti 2005. alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 112 of the theory of performativity could be made within different political-philosophical backgrounds, so as to come to two different answers to hate speech-related issues. on one side, adopting a perlocutionary approach to hate speech, together with a distinction between speech and action and a liberal model of freedom, human rights and harm, could lead to an «oppositionist» answer to the issue of limiting freedom of expression when it comes to hate speech, accepting such limitations only in cases in which «speech shades into action» (see post 1995, 639)17. on the other, an illocutionary approach to hate speech in line with a neorepublican understanding of freedom and human rights, appears to make way for a «prohibitionist» answer based on the rejection of the distinction between speech and action18. these two accounts of the use of the theory of performativity will be shown to possibly lie behind the normative definitions of hate speech given by two different instruments of international human rights law: the international covenant on civil and political rights (iccpr) and the international convention on the elimination of all forms of racial discrimination (icerd). this distinction of approaches could arguably lead to draw a line between criminal and civil (and other forms of) state intervention against hate speech. iii.1. a liberal model of freedom, human rights and performativity: performatives as perlocutionary speech-plus acts the use of performatives to give account of hate speech only as perlocutionary acts could be understood in connection with a liberal theory of freedom and freedom of expression, a liberal model of rights and harm and an acceptance of the distinction between speech and action. all these, as will be shown, could be read as the philosophical elements lying behind the definition of hate speech given by the iccpr. it is within classical liberalism that the foundation of freedom of expression is laid (ansuátegui roig 1994, 2018; pérez de la fuente 2010a). this perspective adopts an understanding of public opinion in its subjective sense, focusing on the subject of the action of freedom of expression and less so on the content (rodríguez uribes 1999, 8183). in other words, it is a matter of analysing the who and how of freedom of expression. within the contemporary debate, this model is characterised by its general inclination to absolutism (as in the «free speech absolutists» model described by sunstein 1993, 5). this does not mean that there are no limits to freedom of expression (baker 17 in fact, post recognises that in some cases «speech shades into conduct» (italics added), but that would be a misleading definition, inasmuch as, legally speaking, speech is always conduct: what post was making reference to was evidently action. 18 for the distinction between oppositionists and prohibitionists in the hate speech debate, see heinze 2016, 24. other distinctions could be adopted, such as kennedy’s (2003, 36, 124) between «eradicationists» and «regulationists». performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 113 2012, 57-58 footnote), but those limits only emerge in case of serious harm or conflicts of rights. in particular, harm and conflicts of rights are based on an implicit assumption related to the distinction between speech and action: only when speech shades into action – or is likely to – the state must intervene in defence of other individuals’ rights or to avoid greater harm (emerson 1963). the main features of the liberal model within the hate speech debate can be listed as follows: 1) a negative conception of rights (gelber 2002, 29-35; see habermas 1994, 223); 2) a negative conception of freedom (berlin 2002) or, in some instances, liberty of moderns (constant 2001); 3) the faith in the marketplace of ideas19 principle (see pérez de la fuente 2010a). these characteristics lead to identifying the absolutist model with a libertarian understanding (fiss 1996, 3; see pérez de la fuente 2010a, 83-87). in fact, not all liberal arguments can be classed as libertarian; yet, the latter is the understanding at the heart of the points made for the prevalence of freedom of expression in the case of hate speech (heyman 1998, 1307). indeed, a negative conception of freedom as non-interference (berlin 2002) is arguably the general account of liberty – and freedom of expression – set forth not just by libertarians, but by liberals too20 (pettit 2013, 175; see waldron 1987, 130). further, such a conception of freedom as non-interference is what lies behind the account of freedom of expression of several liberal thinkers (emerson 1963, 895; schauer 1982, 129; greenawalt 1989b, 121-122; see heinze 2016, 97). the distinction between speech and action seems to stem from mill’s case of corndealers21: an excellent example of the liberal model’s ability to account for the possibility of words shading into action (cueva fernández 2012, 453), depending on the context. this suggests that there are certain limits to freedom of expression, which in mill arise in connection with the harm principle. it is common knowledge that the harm principle is the cornerstone of feinberg’s work (see feinberg 1984), which draws a line for criminal intervention in liberal states only to acts that cause harm to others22. the other principle, related to offense instead of harm (see feinberg 1985), only covers minor cases of psychological and mental evils, such as emotional distress, anxiety and irritation, and cannot always justify criminal intervention. feinberg distinguishes between two categories of «unhappy but not necessarily harmful experiences [...]: those that hurt and those that offend» (feinberg 1984, 46). the first are physically hurting, whereas the latter are only «nonpainful mental 19 see abrams v. united states, 250 u.s. 616 (1919). sunstein 1993, xviii recalls the relation between the liberal model and such a metaphor. 20 for a reading of freedom as non-interference in rawls, see spitz 1994. for dworkin’s understanding of freedom, in turn, see dworkin 1996, 21-26. 21 the example of corn-dealers allows mill to distinguish non-harmful opinions from those which incite to violence depending on the context; let us consider, for instance, the case of the opinion that corn-dealers cause poor starvation, which, although harmless in itself, can become harmful if expressed in a starving crowd standing before a corn-dealer’s house (see mill 1978). 22 feinberg’s notion of harmful acts includes all those acts which cause serious harm to individuals by wrongfully thwarting their interests (feinberg 1984, 34). alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 114 states». theoretically speaking, they could both harm, providing they become so serious and painful that the state cannot avoid intervening; but in feinberg’s description, the standard for seriousness is made up on grounds of physical pain (maclure 2017, 137). in relegating hate speech acts to the second category, it becomes clear that his harm principle is based on a distinction between speech and action (as well as an account of freedom as non-interference, which allows the state to interfere with individuals’ freedom only in case of harm: feinberg 1984, 7-8). as to the link between freedom as non-interference and the liberal rights-based models, let us consider ronald dworkin’s understanding of rights as trumps (dworkin 1977). these rights make the case for a private space defined by the “wall” of individual rights, which trump all other considerations based on public policies (skinner 1986, 248). in dworkin’s liberal account, rights could be limited only by other rights: that means that in order to make the case for the limitation of freedom of expression in cases of hate speech, another competing right must be juxtaposed. thus, freedom intended as non-interference in one’s rights could be limited only for the sake of guaranteeing another individual’s right. in hate speech, finding another competing right to freedom of expression is a daunting task (see figueroa zimmermann 2016, 4-5): the right to be free from discrimination, for instance, could be understood as limiting freedom of expression if and only if hate speech amounts to actual discrimination. that is to say, there must be an action of discrimination, as a perlocutionary understanding of performatives would suggest. indeed, freedom as non-interference is aimed to avoid acts of interference in one’s sphere (nadeau 2004, 114; laborde-maynor 2008, 16). when offending another person on the basis of their race (racist hate speech), for example, one could be punished for hate speech only if one incites others to violent action or acts of discrimination. the liberal model, therefore, accepts a general distinction between speech and action, but it does not accept that some speech acts are bad in themselves, regardless of the material consequences that they could bring about (as an illocutionary account would admit). dworkin himself, the key-figure of «deontological oppositionism» (heinze 2016, 11), by virtue of a liberal rights-based approach, declares his dislike of bans on hate speech (dworkin 1992, 61-64), claiming the necessary and insurmountable bond between democracy and free speech. freedom of expression, dworkin argues, is untouchable, in that it constitutes a universal human right (dworkin 2009, v) and therefore cannot be separated from human dignity, regardless of the content. in other words, freedom of expression includes also the right to offend (dworkin 1996, 218). in dworkin’s arguments it is possible to underline an implicit acceptance of the distinction between speech, which cannot harm in itself, and action, which instead can. this is most blatant in a paragraph in which – distinguishing between «upstream» laws against discrimination and «downstream» laws against hate speech – hateful expressions are appointed to the sphere of opinion forming, while the material consequences of sexism, intolerance, and racism (which fall in the domain of policies and laws against discrimination) are held to be damaging for effectively belonging to the sphere of action (dworkin 2009, viii). those values which are deemed as being harmful to third parties cannot be prevented from being performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 115 expressed: one can only prevent individuals from acting on such values (baker 2009, 142). furthermore, a position in the hate speech debate known as «consequentialist prohibitionism» (heinze 2016, 33-35) stands out for a double reading of the causation of harm in hate speech: material/direct or immaterial/indirect23 (heinze 2016, 125-129 e 137-142). although generally adopting a critical reading of liberal categories, and accepting hate speech bans in some cases, those who adhere to the direct view of causation accept the liberal distinction between speech and speech-plus. academically speaking, this is the approach that lies behind the works of some exponents of critical race theory (see thomas-zanetti 2005; casadei 2008; casadei 2016; zanetti 2017), such as jean stefancic, richard delgado and mari j. matsuda24, who believe that hate speech causes negative material psychological consequences such as stress, depression, alcoholism, and therefore adopt a perlocutionary approach (delgadostefancic 2004, 14; matsuda 1989, 2332-2336). this is even more apparent in libertarians’ accounts of hate speech, as that of nadine strossen, who argues in favour of the distinction between «speech advocating unlawful conduct» and «the unlawful conduct itself» (strossen 1990, 531). on these bases, she criticises those who claim that there is no difference between racist speech and racist conduct. for all these reasons, a perlocutionary approach to performatives and hate speech could be understood under both a harm-based and a rights-based approach to freedom of expression, limiting state intervention in the prohibition of hate speech only to cases in which speech shades into action – or is very likely to –, thus causing harm or violating another individual’s right by means of its material consequences. in fact, speech could do so, as underlined by the theory of performativity, thanks to perlocutionary speech acts. the exclusively perlocutionary approach, therefore, is arguably influenced by a liberal model of freedom of speech: the content of the expression is not relevant as such, but only the material effects it can produce according to the distinction between mere speech and speech-plus (see § 2). all the features described so far could be said to underlie the model adopted by the iccpr: namely, a distinction between speech and action, a perlocutionary account of performatives, an understanding of freedom as non-interference and a liberal model of rights and harm. in order to demonstrate such conclusions, let us recall the definition of hate speech given by art. 20, par. 2, iccpr based on the «advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence». three elements are necessary for a conduct to fall within this definition (ziccardi 2016, 21): a) willingness or intentionality of the conduct; b) effectivity of the incitement; c) verification 23 the immaterial/indirect approach, in turn, is referred to in the following paragraph. 24 for their understanding of hate speech, see, among others, pérez de la fuente 2010b, 152-153. alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 116 or verifiability of the acts. all three make it possible to shed light on the kind of approach this definition is based on; as a matter of fact, through the lenses of performativity, this falls within a perlocutionary understanding and a distinction of speech and action. in the first place, this means that in order for it to be prosecutable, hate speech must be expressed in a performative conduct: it is a matter of employment of speech or other forms of expression, consistent with speech acts theory, aimed at sending out a message able to “do things with words”. further, such performative conduct must be the cause of material effects, either on its victims (being subject to discrimination, hostility or violence – verification – or there being a present danger that such effects will produce – verifiability), or on people subject to the act of incitement (effectivity of the incitement). this is based on a general distinction between speech and action. let us recall the example of the order «shoot him», this time in a “hate speech-fashion”, as in «shoot that nigger down!»: in this case, the listener should be effectively persuaded to act, or it should be very likely. this account could be therefore defined perlocutionary, in that it requires of the performative conduct a material consequence (or a likelihood). in short, such an account does not draw on the possibility of the production of “just” illocutionary consequences, as it requires the material consequence of the incitement. in the second place, the conduct must be intentional. in stating so, as generally required by contemporary criminal law in constitutional states and systems of rule of law, it refuses austin’s account of intentionality, which, as shown earlier, was not a feature distinguishing illocutionary from perlocutionary acts. as to searle, this could be consistent with his account providing that the responsibility of intentionality meets the requirements of criminal law for intentionality itself. moreover, the adoption of a model of freedom as non-interference in others’ private sphere and enjoyment of rights is evident in the fact that the incitement brought about by hate speech, as its perlocutionary consequences, can be understood to possibly undermine e.g. the right to equality and the right to be free from discrimination, the right to physical integrity and the right to reputation. when state intervention is required for the protection of interests other than individual rights, in turn, the liberal account is able to give grounds to such intervention only in cases of material actions as perlocutionary outcomes, in connection with the harm principle (sorial 2013, 63). therefore, such a model is arguably based both on a liberal rights-based model and on a harm-based model25. 25 see art. 19.3 iccpr: «the exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. it may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals» (italics added). performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 117 iii.2. a neo-republican model of freedom, human rights and performativity: performatives as illocutionary speech acts if adopting a neo-republican model of performativity and freedom, hate speech could be understood as producing relations of subordination in society. this constitutes the sheer conventional consequence of illocutionary speech acts bringing about social subordination (zanghellini 2003, 485-486), which can be read within a foucaultian notion of genealogic power (see foucault 1977 and 1983) as «productive, or constitutive, of social realities, truths and subjectivities» (leezenberg 2013, 290)26. these considerations can be understood, among others, thanks to rae langton’s account of the theory of subordination, which she uses as a prohibitionist answer to pornography and hate speech. in a 1993 article (langton 1993), langton analyses the illocutionary dimension of speech and pornography27 as acts of subordination (hornsbylangton 1998, 21; langton 1993, 296). however, in langton’s opinion, the strategy should not be to maintain that pornography and hate speech do not fall within the category of speech (and therefore they are actions), so as to give arguments for the lack of protection under the first amendment. on the contrary, langton does not see the solution in the distinction made between speech and action and does not see it as a tool useful for solving the issue28. reinterpreting the silencing effect argument (see delgado-stefancic 1996, 480-481; gelber 2002, 209), langton focuses on two distinct dimensions of pornography and hate speech: an illocutionary and a perlocutionary one. as to the illocutionary dimension, langton recalls the necessity of the “authority condition” of the speaker, which, according to her, can be gained through discursive practices. this makes it possible to understand langton’s idea of the performative character of hate speech (langton 2018, 1-2). indeed, hate speech creates a sort of authority – which, however, needs some already consolidated social practices, albeit not formally – by enabling, normalising and affirming the acceptability of given behaviours (langton 1993, 316). the authority of hate speech, therefore, is the informal authority of a social practice (langton 2018, 6; see tirrell 2012) that allows hate speech itself to constitute an act of linguistic subordination regardless of its consequences. however, langton’s view of hate speech also consists of a second dimension. in her analysis, the silencing effect of pornography prevents women from “doing things with words” themselves (hornsby-langton 1998, 21; langton 1993, 314). indeed, she 26 indeed, foucault analyses power in biopolitical forms, where the subject appears to be the product of construction, the victim of power’s discipline. (ex multis, see o’leary 2010; digeser 1995, 40-43). 27 langton’s account here rests on catharine mackinnon’s work, who had maintained that pornography is a case of hate speech against women (mackinnon 1993, 22), 28 indeed, as mackinnon herself had stated: «it is not new to observe that while the doctrinal distinction between speech and action is on one level obvious, on another level, it makes little sense. in social inequality, it makes almost none. discrimination does not divide into acts on one side and speech on the other. speech acts. it makes no sense from the action side either. acts speak. in the context of social inequality, so-called speech can be an exercise of power which constructs the social reality in which people live», mackinnon 1993, 29-30. alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 118 theorises the so-called illocutionary silence (or «illocutionary disablement», langton 1993, 315), that is the particular type of silence which occurs when people speak but fail to obtain the desired effects, as well as failing to put in place the actual discursive action intended originally. thus, pornography (as well as hate speech) comes about as a practice able to silence women on an illocutionary level, making it impossible for them, in sexual practices, to illocutionary say «no» in view of the fact that, as an effect of pornography itself, it would be perceived as a «yes». in this account of the performative, the illocutionary and perlocutionary levels are not independent from one another. however, langton’s use of illocutionary disablement as a perlocutionary consequence, in austin’s terms, has to do with conventional consequences and not material ones. therefore, she gives preminence to the illocutionary dimension of speech acts, implying perlocutionaries as a side-effect. this is what allows langton to deal with incitement to hatred as a form of speech act both illocutionary and perlocutionary, maintaining that the verbs incite, promote and advocate contain both the former – in that they constitute the action of incitement, promotion and justification of hatred itself just in being uttered, without there being need of material consequences – and the latter – for recalling prelocutionary consequences (langton 2012, 75; langton-haslanger-anderson 2012, 758). in such an analysis, langton arguably succeeds in overcoming the traditional distinction between illocutionary and perlocutionary approaches, suggesting a reading able to keep together the two at the same time. further, langton appears to base such an account on an understanding of freedom of speech which goes beyond the liberal one, inasmuch as she calls for state intervention to prohibit hate speech so as to support freedom of expression and provide individuals with illocutionary freedom («freedom of illocutionary acts», jacobson 1995, 75-76). in fact, langton’s account could arguably be explained through a neo-republican understanding of freedom as non-domination (pettit 1997, skinner 1998). in essence, philip pettit and quentin skinner made the case that the general understanding underlying liberalism of freedom as non-interference is not enough to understand current situations of lack of freedom. non-domination is a more demanding account of freedom, in that it does not merely focus on actual interference as an act, but on possible arbitrary interference as a kind of relationship between subjects (freedom as «status»). that is to say, while non-interference aims to avoid acts of interference, non-domination focuses on relations between subjects (nadeau 2004, 114; laborde-maynor 2008, 16). this is why the general distinction between speech and action, within a neo-republican understanding of freedom, is incapable of providing a satisfactory reading of the relations of lack of freedom within hate speech. indeed, being dominated is the condition of dependency on the structural social power excised by those who can arbitrarily influence the status of the dominated (lovett 2007, 119). in this view, freedom can also be understood as the power to control one’s own speech acts and not to be controlled by others’: that is to say, not to be victim of «discursive unfriendly» interactions (pettit 2001, 69). then, there is a powerful performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 119 dimension of domination, which could be described as discursive domination, lying behind subordination: it arises not when people are materially incited to act as a perlocutionary effect of speech acts, but through a subordinating use of illocutionary acts that are able to shape social reality (as in butler 1997). the illocutionary approach, as opposed to the exclusively perlocutionary one, gives also relevance to the content expressed, adhering to its need to be “virtuous” in an objective sense, as the republican model would maintain (rodríguez uribes 1999, 84). in other words, it is just the expression of content harmful to other people’s dignity that outlines the irrelevance of the liberal distinction between speech and action, in order to resolve the issues underlying hate speech. for example, in saying «back off, nigger!» to a black individual, it would be certainly relevant if my speech act incites a crowd of white men standing at my side to attack him (perlocutionary account); but the most relevant aspect would be that my reprehensible and offensive speech act contributes to a reality of social subordination in which white people are socially dominating over black people, regardless of the material consequences of my single conduct (illocutionary account). further, recalling the element of «social iterability» (see § 2), the force of speech acts is often to be found not in the single speech act of an individual (individualistic approach), but in the much broader connection with its global social meaning contributing to shaping social reality. within the neo-republican model, the limits to freedom of expression are given far more value; this reflects into the republican understanding of rights (barranco avilés 2009). fundamental rights embody virtue and are the point of convergence of individual interest and common good (raz 1995, 33; barranco avilés 2000, 89-90). what this model rejects is the individualistic principle, used to argue for the state nonintervention in freedom of expression; on the contrary, the government can be a «friend» of freedom of expression itself (fiss 1996, 2), while still posing limits on it as a way of guaranteeing it. furthermore, some authors go so far as to suggest that non-domination should be the value underlying all human rights systems, giving an account of it as the general right to rights (bohman 2009, 64-65)29. this means abandoning a liberal understanding of rights, which, as has been shown, requires that the state should intervene to limit an individual’s right only when another competing right ought to be protected. instead, within a neo-republican understanding of non-domination, the state can intervene irrespectively of the existence of a violation a competing right (barranco avilés 2001, 206-207). nor is freedom as non-domination related to harm-based understandings of state intervention (honohan 2002, 195-196). 29 consider bohman’s proposal: «[b]asic human rights can be understood as fundamentally concerned with basic freedoms, including rights against [...] domination. these basic freedoms are negatively and positively justified as necessary conditions for avoiding [...] domination and destitution on the one hand and for living a worthwile human life [...] on the other. [...] human rights provide the criterion of justice for claims that can be made upon others on the basis of shared freedom, a freedom that is possible only when social coexistence is based on non-domination», (bohman 2009, 64-65). alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 120 in the case of an illocutionary understanding of hate speech, for example, it is not relevant whether my racist hate speech is concretely able to interfere in someone’s rights (such as not to be discriminated, to name one) or it causes serious harm: what is relevant is an objective situation of subordination which, inasmuch as it is incompatible with nondomination, should be removed by the state. that is to say, the state could also intervene limiting illocutionary uses of hate speech, to promote a more tolerant environment irrespectively of effective harm or violations of rights. this makes it possible to say that the illocutionary understanding of hate speech, combined with a neo-republican understanding of freedom as non-domination, makes the case for rejecting the distinction between speech and action as a basis for state intervention. as a matter of fact, there should not be any distinction between speech and action, but only between lawful and unlawful expressive conducts. a similar understanding is reflected in some authors’ positions in the debate on hate speech. jeremy waldron, e.g., rejects solving the problem of regulating hate speech solely by means of the distinction between speech («words») and action. instead, he goes as far as to state that hate speech cannot be considered just as an exercise of speech, thus accepting its performative dimension (waldron 2012, 166). moreover, such a stance can arguably go together with an illocutionary view of performatives. therefore, he believes hate speech to be a malum in se, regardless of its consequences, in that it is an intrinsic feature of language itself. hate, inasmuch as indistinguishable just through the speech/action lenses, is visible; that is why waldron denies its being immaterial. furthermore, within the so-called «consequentialist prohibitionism» (see supra, § 3.1), those who adopt an immaterial/indirect reading of the causation of the harm in hate speech (heinze 2016, 125-129 and 137-142), use phenomenological, socio-linguistic and deconstructionist studies, advocating for a theory of materiality of language and adopting a non-cartesian approach: an indistinction between res cogitans and res extensa – in other words, between speech and action (heinze 2016, 138; see williams 2011). on these grounds, they affirm the existence of diffused effects of hate speech that cannot (and should not) be empirically demonstrated. this is, among others, charles lawrence iii’s approach. recalling cognitive psychology, he reminds of the existence of cultural stereotypes which cause the standardised repetition of unconscious behaviours whereby people learn judgements of value. if ignored, these behaviours become implicitly “allowed” with the effect of perpetuating the status quo, going so far as to structure social reality (lawrence iii 1987, 325-344). the existence of such stereotypes makes it possible, from lawrence’s point of view, for hate speech to constitute a harm in its mere utterance (illocutionary approach). according to lawrence, therefore, the distinction between speech and action blurs to the point of vanishing, at least in hate speech (heinze 2016, 138). as a matter of fact, he claims that «[r]acism is both 100% speech and 100% conduct» (lawrence iii 1990, 444). when it comes to the prohibition of hate speech within an illocutionary approach, unlike the iccpr, the icerd sets international norms as a defence against racist hate speech, which appear to qualify as negative the sheer dissemination of an illocutionary message that is derogatory to its victims, irrespectively of the actual incitement, the latter performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 121 being set forth as another different conduct. indeed, from the definition of hate speech that can be found in the icerd, there appears to emerge an approach which is compatible also with an illocutionary understanding. the convention defines racial hate speech as «all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof» (italics added). in such a definition of hate speech, the different situations of incitement to discrimination, violence and dissemination of ideas based on racial superiority are all set apart. that is to say, dissemination of such ideas is an autonomous conduct different from the other ones. such conduct, in particular, is much broader than the one adopted by the iccpr, which makes the element of incitement a necessary requirement30 (spigno 2018, 288). the contemporary theory of performativity can be helpful, within the approach hereby adopted, to understand the difference between the conduct of incitement and the much broader dissemination of ideas. as a matter of fact, as opposed to the first, the latter can fall within an illocutionary performative account: the “harm” of hate speech is to be found in the discriminatory subordination automatically brought about by it, irrespectively of the effect of incitement that it could have on third parties and/or of the negative effect on the victim. harm, therefore, should not be empirically demonstrated. the regional context of the council of europe also shows openness to the recognition of the illocutionary dimension of hate speech. as observed earlier, the council of europe recommendation n. 20 of october 30th 1997 defines hate speech as «all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin»31. thus, one ought not to take into consideration only those forms of incitement to hatred or promotion of hatred, but also conducts that spread or justify hatred. it is therefore worth underlining that even the council of europe appears to recognise a malum in se in the illocutionary dimension of hate speech32. 30 this is also noticed by mendel 2012, 417-429, who anyway maintains that such an interpretative effect, even though logic, should be considered prohibited under art. 19 iccpr, which allows for limitations to freedom of speech only providing that restrictions are necessary. however, what is still to be demonstrated is that a restriction based on the sheer dissemination of ideas, rather than on incitement, would not be adequate with a view to posing necessary restrictions. 31 council of europe, committee of ministers, recommendation no. r (97) 20, of the committee of ministers to member states on “hate speech”, adopted by the committee of ministers on 30 october 1997 at the 607th meeting of the ministers’ deputies, scope, section 2 (italic added). 32 the point is straightforwardly made by the parliamentary assembly of the council of europe, report doc. 9263, 12 october 2001, racism and xenophobia in cyberspace, draft recommendation (http://www.assembly.coe.int/nw/xml/xref/x2h-xref-viewhtml.asp?fileid=9540&lang=en), in stating that it «considers racism not as an opinion, but as a crime». alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 122 iii.3. perlocutionary and illocutionary accounts: drawing a line between criminal and civil sanctions however, such an illocutionary dimension is agreed upon reluctantly when discriminatory acts that are included among the criminally punishable conducts are not expressed through action but “only” through expression of thought (see rodríguez montañés 2012), as is the case for icerd. indeed, contemporary criminal law in member states would not accept the prohibition of illocutionary conducts of subordination, because, as shown earlier, they are understood to be “mere speech” and not speech shading into action. furthermore, they can be not fully intentional and cannot be faced with an exclusively individualistic approach (as criminal law generally requires). as to the question of intentionality, it is clear that while it would be possible to demonstrate it in cases of incitement or promotion of hatred – perlocutionary approach – the same would be impossible in cases where the speaker is contributing in a linguistic manner to the social subordination of others – illocutionary approach – to the extent of undermining their freedom as non-domination through «echoing responsibility» and «social iterability» (see § 2). this alone could be enough to exclude criminal intervention – which generally requires intentionality of conduct – for illocutionary subordinating hate speech. as to the individualistic approach issue, the contribution to social subordination shall not be accounted for by taking into consideration individual actions, as these would not be enough to fully demonstrate the graveness of the issue of linguistic domination. but in doing so, criminal intervention would again go blatantly beyond its own limits. in order to resolve this issue, therefore, it could be useful to draw a line between perlocutionary and illocutionary hate speech, as follows. according to g. a. kaufman, two are the essential requisites in order for a conduct to legally qualify as hate speech: 1) it has to be aimed at a vulnerable group, namely historically subject to discrimination; 2) at the same time, it has to express a humiliating message against that group, that is to say, which harms its dignity. then, in order to intervene with criminal sanctions, that conduct has to meet either of the following requisites defining its intentionality: 3) the «malice», namely the incitement aimed at third parties to humiliate or marginalise the aforementioned groups or the people that belong to it; 4) direct «intentionality», as in aiming the humiliating or marginalising behaviour directly at a group or to individuals belonging to it (kaufman 2015, 151-179). indeed, adopting the already mentioned definitions, criminally punishable could be those conducts of incitement to discrimination of historically discriminated groups aimed at third parties (such as crowds), as well as conducts of humiliation or discriminatory exclusion directly aimed at a historically discriminated group or at one of its members, in the latter case providing that material consequences arise from speech shading into action. thus, conducts of hate speech defined through a perlocutionary approach would be criminally prosecutable. performative hate speech acts the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 123 in case hate speech conducts do not fall within those mentioned above, they can still be analysed as illocutionary hate speech. in this regard, it could be acceptable that they not be criminally prosecuted; however, although different from the other ones, such conducts also form part of the broad definition of hate speech, so that in their case it will be necessary to think of a non-criminal intervention. for instance, the instrument of civil tort liability could be used as well as an active and positive intervention of the state in favour of allowing hate speech victims to express themselves, so as to counter the discriminations they are subject to, which would allow to react to social subordination. further, major state spending on human rights education could be another means of combating illocutionary subordinating hate speech. this does not mean that the distinction between speech and action, rejected through the theory of performativity, would come back on stage to allow drawing a line in favour of the action of criminal law. preferably, on the grounds of the fact that all expressive conducts are actions and all actions are expressive conducts, the distinction between illocutionary and perlocutionary approaches can make it possible to ask which consequences of expressive conducts are suitable to be subject to criminal sanctions and which, instead, to other legal instruments. in addition, a single conduct may fall under the two at the same time, therefore requiring both types of state intervention. this would make it possible to develop a comprehensive approach to the issue of hate speech, that is able on the one hand to keep together the illocutionary and perlocutionary dimensions while giving a thorough legal answer that is not limited only to criminal interventions and, on the other hand, that is able to draw a line between this and other forms of legal intervention. final remarks in conclusion, it is worth reminding that different conducts fall under the broad definition of ‘hate speech’. in order to make the case for state intervention against it, a line has to be drawn in such an intervention. indeed, when hate speech qualifies in terms of incitement, the state should be allowed to intervene with criminal sanctions; as opposed, when it shows up in terms of dissemination of ideas, criminal sanctions are arguably not the best tool for countering these conducts, for the aforesaid reasons. nevertheless, it is possible to argue in favour of the need of statal intervention in order to protect victims’ human rights in accordance with other instruments that should be imagined on grounds of a non-exclusively liberal understanding of freedom as noninterference – that is, giving value to an understanding of freedom as non-domination, or otherwise, being free from social subordination perpetrated through speech acts. such an approach, as a matter of fact, makes it possible to focus also on the content and not only on the means of the expression itself. the content of the message, under the general human right to freedom of speech, can indeed be detrimental to freedom from non-domination, therefore it is up to the state to give a legal answer capable of guaranteeing that social subordination is not brought about through hate speech. indeed, alessandro di rosa the age of human rights journal, 12 (june 2019) pp. 105-132 issn: 2340-9592 doi: 10.17561/tahrj.n12.6 124 not only can hate speech be analysed within a perlocutionary approach – which, as shown earlier, would be more consistent with a liberal understanding of freedom as noninterference, freedom of speech and the distinction between speech and action –, but also within an illocutionary approach that is able to take into consideration power relations between the speaker and the hate speech target. these relations can be understood through the lenses of the theory of subordination and freedom as non-domination, as well as by recalling the need to abandon the speech v. action distinction. in other words, social subordination, as an effect of hate speech, is a phenomenon which cannot be analysed only through the lenses of a liberal understanding of freedom of expression and perlocutionary tools, which separate speech from action and language from its social consequences. on the contrary, there is a broader requirement to understand freedom of speech based on non-domination within a neo-republican approach, which would be able to put into place an illocutionary attention to the implicit linguistic (and therefore social) subordination of hate speech victims as a side-effect of the collapse of the traditional liberal distinction between speech and action. references alfino, m. 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(2016). l’odio online. violenza verbale e ossessioni in rete. milano: raffaello cortina. https://doi.org/10.4159/harvard.9780674065086 https://rm.coe.int/1680665b3f abstract: the first part of this work analyses the concept of hate speech and its legal-philosophical foundations linked to freedom of speech, through the use of tools provided by current trends in the theory of performativity. the second part, in tur... keywords: hate speech; freedom of speech; performativity; non-domination. for this reason, it is useful to conduct a study on the theory of performativity as a contemporary derivation from speech acts theory, which, according to the stance made in this paper, appears to be an essential tool to understand this issue clearly. as is widely known, speech acts theory dates back to the ‘60s, namely to the publication of john langshaw austin’s how to do things with words (austin 1962), with performativity becoming one of the «key-concepts» of pragmatics (conte 1994, 382). first... a) locutionary acts, the action «of saying something»; b) illocutionary acts, focusing on the conventions that make it possible to perform acts «in saying something»; c) perlocutionary acts, which focus on the consequences of the action performed «by saying something» (austin 1962, 94-107). as to the differences between illocutionary and perlocutionary acts, austin maintains that the former have conventional consequences, while the latter produce material consequences. the production of either type does not bear on the intentional or uni... the example that follows can clarify the difference between the two. in giving the order «shoot him!», the speaker is making an illocutionary speech act, which is giving an order based on conventional consequences brought about by language. yet the sp... both elements, in austin’s reflections, could come together with each speech act. however, one might analyse them as different features of language on which different stances on hate speech can be taken – this will be shown in the following interpreta... after austin, john searle claimed that speech acts theory must only focus on illocutionary acts (searle 2001, 221; see searle 1965, 221-239; rabossi 1972; sbisà 2013, 39-40), which makes it possible to say that in his view the performative is reduced ... thus, searle helps to draw on austin’s distinction in conceiving a theory of action through language; all speech acts, he says, are actions whose effects depend on social conventions. moreover, he clearly states that intentionality is a requisite for ... searle’s debate with jacques derrida (see nealon 2017, 1-5; alfino 1991, 143-152; payne 1995, 5-6; norris 1982), following the publication of the latter’s signature, event, context (derrida 1988), sheds light on the possibility of performatives always... drawing on derrida’s work, contemporary scholars have introduced the notion of «echoing responsibility» (medina 2006, 140). this could refer to the responsibility of hate speakers in putting across a message that is composed of all the meanings that i... in brief, such an evolution of speech acts theory is what lies behind its «contemporary uses», the analysis of which can be helpful in describing the useful tools that the contemporary theory of performativity provides. indeed, after what has been des... furthermore, these issues could arguably go along with two different conceptions of liberty: a liberal and a neo-republican one, which, as will be shown, could account for different understandings of freedom of expression and hate speech. religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 196 religious intolerance: the maximum denial of alterity edna raquel hogemann 1 sergio luis tavares abstract: it analyses aspects of religious intolerance in brazil, its cause-and-effect relationship with radical proselytism, negative consequences for the exercise of the right to religious freedom and other human rights, some manifestations in the brazilian multireligious scenario, some potentially effective instruments for prevention intolerance, among which are the practices of alterity. it shows that brazil, does not present a chaotic picture in terms of intolerance, but has worrying records of persecution, discrimination and acts of violence, for religious reasons, which should serve as a warning for implementation of affirmative actions and public policies regarding the duty of respect and solidarity with others. keywords: human rights; religion; religious freedom; afro-brazilian religious intolerance; alterity summary: 1. introduction. 2. religiosity and the dangers of religious intolerance. 3. religious intolerance as a sequel to unbridled proselytism. 4. religious intolerance in the brazilian multireligious mosaic. 5. some instruments for reducing religious intolerance. 6. concluding remarks 1. introduction there are many challenges to achieving reasonable levels of consensus and peaceful coexistence among human beings. as well as the lack of dialogue on more objective issues that pervade social life, there are deadlocks, controversies, and disputes, what can be said about clashes between diverse convictions and beliefs, often antagonistic about certain dogmas, principles, and customs. this scenario is further aggravated by the fact that the same human right to freedom of religion of a given individual is used by him as a weapon against the identical right of the other and, in this conflict, one or both parties maintain that they hold the absolute truth with them. from this perspective of misrepresentation, what would be a human right, and fundamental in many national legal systems, is now interpreted and used as a free pass for abusive conduct of prejudice, persecution, violence and other forms of offences against other individuals or groups. religious intolerance stems from the mismanaged confrontation of distinct cultures and religious traditions, which refers to the concept of interculturality, and is a phenomenon witnessed by humanity in practically every age and part of the world. 1 ufrj and permanent professor of the graduate program in law and dean, at the federal university of the state of rio de janeiro unirio, brazil (ershogemann@gmail.com). mailto:ershogemann%40gmail.com?subject= edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 197 religion, as a social phenomenon, lacks the minimum standards for coexistence among individuals and between individuals and the state, so that acts of religious intolerance are avoided or, if not, repressed. religious freedom, being a right with many faces and which, in essence, requires no state interference, and considering its high subjective load, is potentially fertile ground for the occurrence of abuses in the name of this same right, such as hateful and intransigent behavior and discourses directed to those who do not declare themselves believers or who are believers of other religions. the first part of this essay discusses religiosity and the dangers of religious intolerance. however, in the name of that belief (or not belief), the individual is not allowed, morally and legally, to be intolerant with the other who believes (or does not believe), according to his expectations or his worldview. in the second part, the essay discusses religious intolerance as an effect of disproportionate, unreasonable, unbridled religious proselytizing, inciting aggression, discrimination, and prejudice, which constitutes a deformity of religious freedom, since it transforms the defense of faith (religious proselytizing and apology for belief) into a weapon of attack (fundamentalism, sectarianism, religious intolerance). the following part is dedicated to discussing the hypotheses and episodes of religious intolerance, especially in the brazilian scenario, both on the basis of statistical and journalistic data, and under a structure of theological, anthropological and sociological reflections. the last section of this study suggests some instruments for combating religious intolerance, such as international documents that stipulate this commitment, teachings of the religions themselves, specific and effective public policies for this purpose, as well as proposals for the constant stimulation of interreligious dialogue and the practices of otherness. fighting religious intolerance in brazil, as in any part of the world, is above all a posture of a political and juridical need, to be assumed by all, in order to avoid bitter fruits being harvested ahead and holy wars being hypocritically fought by achieving a supposed but false peace. 2. religiosity and the dangers of religious intolerance it would not be expected that everyone would experience in the same way the experience that each one goes through in his or her action of reconnecting (-seeing) with some being or with something superior and transcendent, capable of leading it originally or returning it to a level of security, peace, hope or other pleasant feelings or emotions. in more precise terms, the way of transcending is personal, so one cannot necessarily demand that someone understand, except through empathy and otherness, the faith and religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 198 any other form of conviction of another human being, even if he or she becomes part of the same community of believers. considering that, even within the same religious group, devotion takes place through an essentially individual profession of faith, and therefore diversity is present, what about individuals and groups who have distinct views and separate perceptions of the world? this pluralism of beliefs and non-beliefs also radiates through its immersion in other environmental and social vectors related to the history of each society, customs, traditions, languages, schooling levels, climate conditions, levels of economic development, and many other factors. in terms of the exercise of faith, living together and respecting diversity and pluralism should be something umbilically related to the right to religious freedom itself. but reality always seems to be very different. it is important to consider winnifred (2014) words: you cannot both celebrate religious freedom and deny it to those whose religion you don’t like. human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. big “r” religion, on the other hand, the religion that is protected in constitutions and human rights law under liberal political theory, is not. big “r” religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life therefore, when we talk about a constitutionally guaranteed freedom of religion, it is difficult to explain why only one or another religion is effectively protected and normally these guarantees are only given to the religion of white people here in our country. nevertheless, the conduct of intolerance hovers dangerously over any field of social coexistence, forming itself by the absurd certainty of the possession of an absolute truth, which can evolve into the construction of a thought of imposing this truth on others. when it comes to religious performance, these risks seem to be even greater and more complex. as a historical landmark, john locke, through his work letter about tolerance (of 1689), showed himself to be an advocate of religious tolerance. paradoxically, locke listed cases in which intolerance against catholics and atheists was necessary (locke, 1978). in this sense, it is important to point out that locke understood individual freedom as a civil good. it was up to the government to preserve this inalienable asset. the existence of freedom was combined with presence and tolerance. just because, if different individuals, with different perceptions and worldviews (albeit with the same cultural base), are free in their consciousness, in their thinking, they become responsible for preserving the freedom edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 199 of others. and the freedom of the other can only exist if there is tolerance. the purpose of freedom for locke was to better fulfill moral duties (michaud, 1991, p.66). the english philosopher, therefore, defended an ideal of tolerance simultaneously ethical and political, with a sensible predominance of lay arguments over theological ones. it advocates the abolition of civil and religious privileges for the construction of a peaceful society, proposing the necessary separation between religious and civil powers which, if interfered with, hinder the free exercise of religious conscience. notwithstanding the advance of these conceptions, it should be noted that the author excluded from his concept of tolerance atheists and catholics, considering them dangerous to the balance and strengthening the state (michaud, 1991, p.71). for the author, intolerance of catholics was due to the idea that they would represent a threat to the kingdom since they would be subjects of a foreign sovereign and of a power considered superior to any other. as for the intransigence related to atheists, he was on the assumption that the lack of a religious belief would make a stable normative reference among men impossible. the spectrum of religious intolerance also goes the way of denying the religion of the other, for example, on the grounds that it is a sect, something demonic, or mere philosophy. from this reasoning, only the opinion, shared by many, regarding the difficulty in conceptualizing what religion is, is taken advantage of, since the word carries a variety of meanings, but one can risk affirming that religion consists of a system of ideas, beliefs and organized practices, capable of influencing an individual or a collectivity, in the search to associate the human element with the divine, sacred, eternal element. considering that religiosity harbors conceptual difficulties and diversity as to worldview, derives from the confluence of numerous chronological and geographical vectors, and is legally embodied in the idea of the freedom of its exercise, it remains to be seen that the emphasis on the transcendent and the immanent has made known the dichotomy, which here is preferred to call sacralization versus desacralization, although it would be sufficient simply to analyze the comings and goings in the historical processes of secularization of societies. zanone (1986, p. 673) states that the term secularization in sociological literature is normally used to characterize the process of transition from patriarchal, rural and closed societies to industrialized, urban and unholy society, where there is a constant reduction in the social weight of organized religion. it is true that secularization is also noted for the prospect of the individual taking possession of his or her freedom of conscience in order to assume and declare himself or herself, for example, to be an atheist or agnostic and to demonstrate this by breaking with the practices and customs dictated by religion, such as ignoring the meaning of christmas religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 200 or easter or despising the possible benefits of a prayer, a cult or any other manifestations of faith. although the concept of secularization usually leads us to an idea of the desacralization of society, it is interesting to note that secularization can produce fruits other than the cooling down of religiosity. in that sense, ribeiro says: it is necessary to emphasize that the process of secularization experienced and halfway through modernity has not produced, as expected, the disappearance or attenuation of religious experiences. on the contrary, in the christian field, for example, pentecostal and charismatic forms have gained popular attachment, social space and institutional base in both the evangelical and the catholic world. other religions in brazil and in the world are also experiencing times of reforestation (ribeiro, 2014, p. 31). thus, as much as secularization may denote man's immanent detachment from the transcendent divinity, observable even in this scenario, the emergence of new religions, understood here not only as other doctrinal trunks, but also as denominations derived from the same religious tradition, originating as dissidents or as simple ramifications of the mother church, constituting, as a rule, syncretic religious movements. in this sense, it is worth registering the words of montero (2017): it therefore appears to us that, more than a political ideology to be adopted or criticized, the phenomenon of secularism can be understood as the result of a disciplinary practice, as outlined by talal asad (2003), in which agents learn and acknowledge practices of public justification as a suitable form of recognizing their rights in a world in which no substantive body of beliefs is still able to regulate the totality of collective life on its own (binoche 2012). in this perspective, in which the plurality of points of view comes to be the condition of all social existence, the political practice of tolerance becomes progressively the most acceptable normative reference as a regulatory principle of the conviviality of differences. however, it should be emphasized that tolerance as a principle brings with it much controversy. montero (2017) separates the current concept from the traditional, by saying that “the current meaning attributed to the idea of tolerance is quite distinct from its historical definition. the emergence of the concept is related to religious disputes about truth (or of the true religion) and of the possibilities for a practical compatibility between distinct faiths”. on the other hand, to hold that religious intolerance must be fought legally also implies the social behavior of respect for the devotional style of an individual or collectivity who have decided to assume and express some form of religious belief, provided that it edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 201 does not go beyond what is agreed by law and that it does not outrage similar decisions of other people. it is important to note that religious prejudice can be present in attempts to ridicule the modus vivendi of those who have decided to confess their faith, whether it belongs to the dominant religious tradition of their society, or even minority in its representation. as serious as not tolerating the religion of the other is to have to deny their religiosity to fit in with the expectations of social groups that are envious of seeing themselves as desacralized, when it would be enough for them to behave in a secularized way, as much as enough to guarantee harmonious and respectful coexistence among religious collectivities and other institutions occupying the same social space. despite the complexity of the discussion, in general terms, the preservation of religious practice, without undue interference from the public authorities and other sectors of society, seems to be far from the reality. the whole point of having a state-protected “right to religious freedom” is that religions tend to not co-exist in harmony without state intervention. as serious as not tolerating the religion of the other is to have to deny their religiosity in order to fit in with the expectations of social groups that are envious of seeing themselves as desacralized, when it would be enough for them to behave in a secularized way, as much as enough to guarantee harmonious and respectful coexistence among religious collectivities and other institutions occupying the same social space. 3. religious intolerance as a sequel to unbridled proselytism the maxim that religion is not discussed deserves to be re-examined in the context of a democratic state, so to bring such jargon to literal rigorism would necessarily be to state, for example, that the public authorities could not prevent excesses practiced in the name of faith, or even that religious people could not express their religious proselytism, which is tantamount to inhibiting the effectiveness of the right to religious freedom. the word proselytism has its origin in the greek verb proserchesthai, which means to approximate, evolving to the idea of the purposeful effort to make converts to some religious faith, or to any other kind of idea or thought (champlin, v.5, 2008b, p. 470). it is important to clarify that proselytism has a face that reveals itself as a legitimate and simultaneous manifestation of the fundamental rights to religious freedom and freedom of expression, configuring a modality of freedom of religious expression, which should be, in principle, recognized as a right recognized in the democratic societies. the breadth of the right to religious freedom reaches the possibility of externalizing such a belief, that is, the self-determination as to expressing, before other individuals, one's own thoughts, sensations, emotions, and perceptions generated in the subjectivity of each religious adept, even as an attempt to convincing other people about those principles and values, reputed as worthy and of great existential value. religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 202 in this sense, it is fully possible to approach the following circumstances: a protestant who emphasizes the biblical text, a catholic who reveres the figure of mary, mother of jesus christ, or a candomblé religious who demonstrates zeal in fulfilling the precepts of his orixás , consist of legitimate manifestations carried out by the members of these religions, in accordance with their respective precepts, which, due to their simplicity, can even gather proselytes for their respective beliefs – it being certain that it is not in the nature of afro-brazilian matrix religions to practice proselytism. the problem arises when, in the initiative of convincing, or converting someone to his or her creed, mechanisms, strategies or subterfuge are used which decontextualize, demean, or offend the belief (or non-belief) of others, probably the result of excesses or abuses to the genuine freedom of religion until then. this deformation to the expected contours of religious proselytism occurs through conduct such as the externalization of discourses steeped in segregation, hatred, discrimination, offenses, or even evil satires directed at symbols, deities, holy books, or ecclesiastical leaders of other beliefs and matrices. here, it should be clarified that the understanding of religion cannot be based solely on individual belief and, in this sense, religious intolerance does not become a matter of personal inability to accept or understand the faith of the other, that is, not just an interpersonal thing. it is observable, at least in brazilian history, that religious intolerance is intertwined with racist conduct and other forms of violence, discrimination, and prejudice, directed at certain individuals and groups, not only because of devotional differences, but also because of differences in ethnicity, gender, economic power and other social factors. regarding this intertwining of religious prejudice and other forms of discrimination, including racial discrimination, mbembe makes it clear that to practice discrimination more easily, while at the same time making it something conceptually unthinkable, "culture" and "religion" are mobilized to take the place of "biology" (mbembe, 2018, pp. 21-22). in this sense, and by way of illustration, discrimination, and other attacks on african religiosity at the time of brazilian colonization (resistant thanks to the syncretic practices that mixed elements of the roman catholic faith with the beliefs developed by the black slaves in brazil), radiate to this day against the heirs of afro-brazilian religions. the sin which has fallen on african religiosity, as having been the profession of faith of enslaved women and men in brazil, persists today on considerable discriminated layers of brazilian society, followers of candomblé, umbanda, omolokô and other strands, because these have been the religions of blacks and poor. babalawo santos2 (2019) explains that in brazil, especially nowadays, this mixture of intolerance and prejudice is not only manifested in the depredations of temples 2 priest in yoruba worship. edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 203 or “terreiros”. "it is possible to map these behaviors in the work environment, in the neighborhood and, of course, at school, where only festivals, holidays and content related to catholicism are celebrated and taught." "people find it very normal to know everything about greek mythology, and absolutely nothing about the orishas." this is the reason why it is possible to state that, by definition, religious intolerance can be considered as the act of discriminating against practitioners of historically marginalized religions. in brazil, for example, the numbers reveal that although only 2% of the population declares themselves to be practitioners of african-based religions, according to a survey conducted by the datafolha institute, released in january 2020, in the first half of 2019, 59 % of allegations of religious discrimination received by the “dial 100”3 service were from umbanda, candomblé and other afro-brazilian denominations (numbers released by the ministry of women, family and human rights, in 2019). considering that the separation between the just exercise of religious freedom, which includes proselyting discourse, and abusive and fundamentalist conduct ends up being the form of expression of one's own convictions and beliefs, one can see how essential it is to weigh the right to religious freedom against the very guarantee of free expression, since both are closely related. this was observed in an important decision of the brazilian federal supreme court (stf), which judged habeas corpus no. 82.424-2, in which the editor siegfried ellwanger castan was accused of a crime of racism for having, as a writer and partner of the company revision editora ltda., edited, distributed and sold to the public anti-semitic works of its authorship and of national and foreign authors who, according to the complaint, "address and sustain anti-semitic, racist and discriminatory messages", intending with, that to "incite and induce racial discrimination, sowing in its readers feelings of hatred, contempt and prejudice against people of jewish origin" in which, among the arguments, considerations were presented on the moral and legal limits to the exercise of freedom of expression, which fits also as a rule for equitable religious proselytism. this is what the stf said: [...] brazil's adherence to multilateral treaties and agreements, which vigorously repudiate any racial discrimination, including the distinctions between men for restrictions or preferences deriving from race, color, creed, descent, or national or ethnic origin, inspired by the supposed superiority of one people over another, of which are examples of xenophobia, "blacrophobia", "islamophobia" and anti-semitism. freedom of expression. constitutional guarantee that is not absolute. moral and legal limits. the right to free expression cannot include, in its scope, manifestations of immoral content [...] public freedoms are not unconditional, and must 3 dial 100 or dial human rights is a 24-hour brazilian service channel that receives phone calls, analyzes and forwards allegations of human rights violations to those responsible. religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 204 therefore be exercised in a harmonious manner, observing the limits defined in the federal constitution itself [...] the fundamental precept of freedom of expression does not consecrate "the right to incite racism", since an individual right cannot constitute a safeguard for illicit conduct, as is the case with crimes against honor. prevalence of the principles of human dignity and legal equality. there is a close link between the indispensable, this juridical time which is dragging on without an end, and memory, the appeal of the past to the disposition of the living, the triumph of remembrance over forgetfulness [...] (emphasis added) (brazil, stf, hc 82.424/rs, 2003). unbridled proselytism is, conceptually, the denial of one's right to religious freedom, not an expression of it. the accusation that the other, not partaking of a particular religiosity, is doomed to perdition, curse, hell or any kind of eternal or spiritual condemnation cannot justify the same other being assaulted, discriminated against, invaded in his subjectivity, threatened, persecuted, banned or having any of his human rights affected. in the history of american colonization by spaniards and portuguese, the salvific mentality commanded proselytizing discourses and energetic actions of domination against native indigenous populations, which included the degradation of their religiosity, interpreted as rudimentary and heretical. dussel explains this process: the whole imaginary "world" of the indigenous was "demonic" and as such should be destroyed. this world of the other was interpreted as the negative, pagan, satanic and intrinsically perverse. the method of the tabula rasa was the coherent result, the conclusion of an argument: since the indigenous religion is demonic, and the divine european religion, the former should be totally denied and, simply, religious teaching should begin again and radically from the latter (dussel, 1993, p. 60). demonizing the religion of the other seems to have been a constant strategy to constrain, dominate or even destroy undesirable individuals and groups. the holy wars that illustrate the bloodiest pages of mankind well demonstrate this. in many of them, a more detailed analysis will expose that the religious issue served only to justify other levels of disputes. however, the complete destruction of the other may not be convenient, such that it would be to keep him under some ideological control, even under the farce of a consent to his religious exercise in a clandestine manner. analyzing the brazilian afro-catholic syncretism, which has its origins in the senzalas and other hidden corners of the properties of the agricultural producers of our country's colonial era, known as the lords of ingenuity, tolerating the enslaved negro to exercise his faith, even if syncretized with catholicism, would not affect the economic interests of that society. edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 205 there is no doubt that the african-based religious cultures in brazil are a result of the encounter of the african cultural unity described by diop (2014) and, in the words of slenes (1992), discovered by enslaved africans in brazilian lands. however, as a consequence of the racist structure in which this country was structured, the dialogue between african cultures was singularized by eugenics, which resulted in what nascimento (2016) pointed out as a folklorization of black culture in brazil, raised to the condition of exoticism that aroused the interest and even the fascination of the colonizing white, but unable to compose a structure strong enough to break with the racism in which our society is founded (or sunk). it is interesting to note that, although catholic priests at the time were responsible for maintaining the moral and religious health of the slave population, according to the provisions of the council of trent (1545-1563), what is observed is that religious proselytism has slackened, thanks to the strategy of syncretism adopted by the slaves. from the most historically remote episodes to the present day, in brazil and in other parts of the world, the stiffening of religious discourse to levels capable of oppressing that which is different in beliefs and convictions tends to consolidate a negative proselytism, which in itself builds delicate scenarios of religious intolerance. 4. religious intolerance in the brazilian multireligious mosaic in essence, brazilian people are religious, or at least believers. the overwhelming majority of the brazilian population claims to believe in god, according to successive surveys conducted both by the brazilian institute of geography and statistics (ibge, 2012) and other research institutes. brazil is said to be a multi-religious country and it is not surprising that, even among those who call themselves atheists, one hears the expression thanks to god, a striking feature of national culture. it is interesting to mention a more specific feature of brazilian religiosity, according to the statistical surveys of the 2010 census, which is a manifestation of this pluralism in the same individual, that is, a considerable number of brazilians who have declared multiple religiosity (or multiple belonging), which is to say that they are followers or faithful of two or more religious institutions (oro, 2013, p. 77; 189). however, it is unquestionable that religious intolerance is also very present in today's brazilian society, not least because of the historical roots of these abusive practices, and because of the late and incomplete arsenal of measures to combat this form of intolerance. apart from this, it should be noted that religious intolerance can come from anywhere, that is, from state agents as well as from private individuals, who are mostly followers of other religions, or dissidents of the same tradition or religious denomination. gonçalves, referring to a historical example of religious intolerance in our country, comments that even brazil, "a country without a tradition of religious conflicts, records the serious case of the canudos war, marked by the religious intolerance of the state and of a religion against a spiritual leader (antônio conselheiro)" (gonçalves, 2013, p. 115). religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 206 about religious intolerance, in the brazilian context, the actions perpetrated by groups of criminals who somehow feel allied with certain religious leaders of some evangelical churches also impress, culminating in the destruction of temples and acts of violence against adherents of other religions, notably those of african origin4. cunha reports this scenario of religious intolerance: now it is the turn of a new modality, certainly more worrying: the alliance of the adepts of this religious current with drug traffickers, converging in an even stronger violence against umbanda, candomblé and other expressions of african origin (cunha, 2018, p. 256). the issue of religious intolerance in brazil was even portrayed by an important work of brazilian dramaturgy, the payer of promises, by dias gomes, (first published in 1959) and whose narrative time pointed to the sixties of the last century. in this literary narrative, the protagonist called zé-do-burro is the representation of the individual who, because of his religiosity, suffers from the conduct of intolerance, both by the followers of the dominant religion (in this case, father olavo, the catholic priest and other faithful), and by the public authorities appearing there, who did not protect zédo-burro in his right to religious freedom and, on the contrary, took his life. zé-do-burro and his religious perception, syncretic, mixed with elements of african religiosity, slave, poor, dominated in sociological and historical perspectives, represents the oppressed in the face of what would be the correct religion, hegemonic, tutored by the public power, although, formally, brazil was a secular state at the time of the narrative. father olavo's intolerance of the religiosity of zé-do-burro frustrates any attempt at inter-religious dialogue, because of the religious syncretism admitted by the pagador de promessas between the figure of iansan, an orixá worshipped in candomblé, here representative of the oppressed religiosity, and saint barbara, a saint venerated in roman catholicism, representing the institutionalized and dominant religion. the process of demonization of african culture, and consequently of afrobrazilian religions, is still evident in daily life in brazil, so that dances, music, folklore and traditions are commonly understood as malign expressions. this discriminatory routine does not occur when references are made to nordic, celtic, anglo-saxon, and greco-roman religious traditions, praised as mythologies. thus, thor is the nordic god of thunder and battles, admired by many as a worthy hero, while ogun, the african orixá of 4 the process of criminalization of popular uses defined as magic, charlatanism or sorcery is a phenomenon well known and researched in brazil. several studies reveals what and how, “ in the name of defense of order and public health the state criminally persecuted mediums, “mothers and fathers of the saint,” for “shamanism,” and in the name of the “true religion” the church denounced and fought “false religions,” superstition and magic” (giumbelli 1997; schritzmeyer 2004; montero 1985). edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 207 war, iron, and crops, is considered a demon in the mindset of many christians, especially certain more sectarian pentecostal protestants. the same demonization takes place with exu, an african orixá who is part of the pantheon of divinities worshipped in the candomblé of nagô tradition. it regulates sex, communication, controversy, renewal chaos, the movement. it is considered as the messenger between the material and the immaterial. prejudice and intolerance of exu qualify him as the devil, especially when he is visualized with a trident in his hands, one of the symbols attributed to this orixá, in brazil. however, the trident in the hands of the hindu god shiva, the roman god neptune, or the greek god poseidon, does not cause such superstition and prejudice, nor does it place them as demons. not by chance, the report on intolerance and religious violence in brazil (rivir), for the years 2011 to 2015, presented in 2018 by the then ministry of human rights, registered attacks in eleven regions of the country against forty-five places of worship of african religions (brazil, rivir, 2016). in the state of rio de janeiro alone, in 2017, eight hundred cases of religious intolerance were registered, where most of the victims (71.5%) are practitioners of african religions, with a daily average of two cases (g1, 2018). the newspaper estadão, in an article published in 2016, emphasized the increase of 3,606% in the number of accusations of religious intolerance in the last five years, according to data from the ministry of human rights' survey at the time. according to the journalistic report, anthropologist christina vital, of the sociology department of the fluminense federal university, drew attention to the increase in the number of african religions that have been invaded and burned (estadão, 2016). however, religious intolerance does not only victimize followers of afro-brazilian religions such as candomblé and umbanda. the report, mentioned above, also mentioned twenty-two cases of religious intolerance against symbols of the roman catholic faith between the years 2011 and 2015. an example of this intolerance against catholics, although prior to the period pointed out by the report, but which became emblematic, was the kick in the saint, a controversial episode that occurred in october 1995, when a former bishop of the universal church of the kingdom of god, sergio von helder, insulted an image of our lady of aparecida with words, punches and kicks during television programming. the allegations for the religious offense committed by the ex-bishop were that veneration of images and catholic saints would be forms of idolatry and, consequently, non-compliance with biblical ordinances. the insult generated great indignation among catholics, who considered the fact to be unjustifiable conduct of religious intolerance, and which earned the bishop a criminal conviction for the crimes of religious discrimination and vilification of that symbol of the catholic faith. religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 208 religious intolerance can also start from the very environment of belief and be aimed at individuals or groups of the same faith. this friendly fire occurs, for example, with discriminatory behaviors directed against certain classes of people, on the grounds of sex, marital status, purchasing power, schooling, sexual orientation, race, etc. thus, if in a religion the priesthood is not allowed to women, on the basis of dogmatic foundations, principles or values of this belief system, discussions may arise as to the boundary walls between the right to freedom of religion and religious intolerance, as well as the extent to which public power and the legal system could interfere in such matters. another expression of this "friendly fire" can be observed when a certain religious, considered less conservative in the customs and dogmas of his religion, comes to support some other religiosity considered an adversary. in other words, at times the fight against religious intolerance can lead to more intolerance against the one who proposes measures of solidarity, respect, empathy and otherness in favour of the one who is different. by way of illustration, this phenomenon was verified when the evangelical pastor and gospel singer kleber lucas, after having participated in a candomblé event in duque de caxias/rj on november 22, 2017, began to suffer attacks on social networks from certain other evangelical religious who called kleber lucas a possessed man (extra, 2017). it is interesting to note that this ecumenical event, although it took place inside a religious candomblé temple, brought together representatives of the evangelicals and african religions, precisely to celebrate the donation of a sum of money, collected for the reconstruction of the “terreiro” (a term used in candomblé) that was criminally burned in 2014 by radical and intolerant religious. sociological and anthropological studies show that the brazilian people predominantly preserve a democratic-religious style, forged in an environment of high cultural diversity and leveraged by the syncretism of beliefs and the acceptance of ecumenical practices. about this profile of brazilian society, the anthropologist da matta5 writes: the point is to consistently use the discovery that brazilian society is relational. a system where the basic, the fundamental value, is to relate, to bring together, to confuse, to reconcile. to stay in the middle, to discover mediation and to establish gradation, to include (never exclude). 5 an important aspect raised by the brazilian anthropologist roberto da matta is that the brazilian lives a dilemma constituted by the oscillation between two social units distinct: the individual the subject of universal and egalitarian laws that modernize the society – and the person – the subject of the social relations that lead to the dimensions hierarchical systems. (da matta, roberto. carnavais, malandros e heróis: para uma sociologia do dilema brasileiro. 6.ed. rio de janeiro: rocco, 1997.) edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 209 synthesizing models and positions seems to constitute a central aspect of the dominant brazilian ideology (da matta, 1987, p. 117). despite this pluralism and such a relational profile, it is observed that the myth of the unequal yoke is also present in our society. this expression, which is most used among evangelicals, from a biblical verse6, puts into context a recommendation against dating and marriage between a confessed christian and a non-christian. this manifestation of intolerance, in some religious circles, takes on the aspect of a true prohibition which, if breached, will even matter in the exclusion from the list of members of the local church. it is paradoxical that the myth of the unequal yoke should apply precisely to love relationships although this is not the focus of this essay, but proselytism, we only mention it as an example -, for all distinctions should lose meaning in the face of the supremacy of love and in the reasonable reasoning that an ecclesiastical rule should not be more relevant than the emotional achievements generated by the union between people who love one another. of the many other expressions of religious intolerance that could be added to this article, it is pertinent that the question of sexuality should not be overlooked, since it constitutes fertile ground for controversies that oppose, on the one hand, the idea of freedom with regard to sexual orientation and other related social behaviors, and on the other, more rigid and conservative religious principles. issues such as the acceptance by certain religions of the entry of homosexuals as members, the celebration of same gender religious marriages, and the very controversy of gay healing still yield vociferous discourses and claims on both sides, usually antagonizing the constitutional guarantee of the fight against discrimination and prejudice with the equally constitutional right to religious freedom, which includes proselytism and the apology of faith. thus, for example, if a (catholic) priest, a (protestant) pastor or any member of the islamic community initiated into religion, charged with celebrating a marriage between persons of the same sex and same gender, refuses to minister in this celebration, a great forum is opened for debates on whether such a negative would be an ecclesiastical prerogative based on legitimate freedom of belief, or whether it would constitute an act of religious intolerance. 5. some instruments for reducing religious intolerance it is often seen that the lack of concreteness of a human right is precisely due to the gap between its mere formal consecration and the practical conducts that demonstrate the reality of the deficit of its effectiveness in social cuttings. 6 this is verse 14 of chapter 6 of paul's second letter to the corinthians, which says: do not be unequally yoked with unbelievers; for what society can there be between righteousness and iniquity? or what communion, of light with darkness? (bíblia, 1999, p. 1379). religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 210 in this aspect, it can also be observed that there is no lack of texts and discourses of a moral and juridical order that establish the commitment to the question of religious tolerance. this is noted in international documents, in various national legal systems, as well as in the principles and values of numerous religions, whether institutionalized or not, ancient or more recent. moreover, love of neighbor is practically a maxim which is constant in most religions of the past and the present, and which is made perceptible in the respective holy books (for the religions which contain this element), in liturgical practices, in the professions of faith, by the guidelines and exhortations of religious leaders, and even through the commonly expected behavior of the followers of these same religions. in the juridical field, there is the contribution of international law through various treaties and conventions with humanitarian content, such as the universal declaration of human rights (udhr), approved by the general assembly of the united nations on 10 december 1948. fruit of the 1948 declaration and more specific to the cause of combating religious intolerance, the declaration on the elimination of all forms of intolerance and discrimination based on religion or belief, proclaimed by the general assembly of the united nations on 25 november 1981 by resolution no. 36/55 (united nations, 1981), deserves mention. there are also other international regulations on the theme of religious freedom and the fight against conduct of intolerance to the worthy exercise of this right, such as the declaration on the rights of persons belonging to national, ethnic, religious and linguistic minorities, approved on 18 december 1992 by the general assembly of the united nations (united nations, 1992). in terms of brazilian national law, there is also a protective legal framework, both constitutional and infra-constitutional, such as federal law 11.635 of 27 december 2007, which symbolizes all these efforts by consecrating january 21 of each year as national day for combating religious intolerance. from the inclusion of this date in the civic calendar of the country, including for official commemoration purposes, events such as the march to combat religious intolerance began to take place in several brazilian cities, gathering renowned religious leaders of different shades, with the aim of better projecting this theme to brazilian society. from the dogmatic point of view, several religions contemplate, by means of their principles and values, teachings and rules aimed at tolerance with the other, as well as the reproach for extreme conducts and disrespect for the cosmovision of others. the ethics of reciprocity, spread by the main world religions, is a moral principle, which can be expressed both in the form of an ideal directive conduct (treating the other as you would like to be treated, the so-called golden rule) and a prohibitive injunction (not treating the other as you would not like to be treated, the so-called silver rule). edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 211 it requires the development of attitudes of otherness and empathy and is present, in the form of the silver rule, in zoroatrise, buddhism, confucianism, hinduism, judaism and islam. in christianity, the principle on canvas is announced by an affirmative proposition: whatever you want men to do to you, so do you also to them; for this is the law the prophets7. the so-called law of cause and effect, also known among the followers of spiritism as the law of return, also suggests that undue actions practiced against someone will inevitably yield future spiritual harm. similarly, the parable of the sower8 teaches that good seeds planted will yield good fruit, in an allusion to the importance of good conduct so that, later on, this same sower may be rewarded with the result of his actions. intolerance, therefore, is not taught or encouraged, according to the moral and behavioral rules set out above, nor is it perceived that unbridled proselytism and vociferous discourse are tactics proposed by religions. in the biblical text, as an example, humility, meekness, mercy, and pacification are the beatitudes9 taught by jesus christ to his disciples during the sermon on the mount, considered the great ethical pact for christians. still in the bible, there are guidelines for christians that convincing people of the risks of sin is god's task10, and not man's. these instructions are sufficient to show that radical and aggressive conduct by certain individuals and groups against adherents of minority religions, such as those of african origin in our country, do not derive from christian principles, but are deviations from the conduct of certain religious. however, perhaps the greatest instrument for combating religious intolerance will be, in a theological and moral conception, precisely interreligious dialogue11, a probable antidote for ceasing or diminishing the disputes of space by religions, discouraging fundamentalist and violent conduct contrary to the belief of others, and adjusting the 7 text from verse 12 of chapter 7 of the gospel of matthew (bíblia, 1999, p. 1110). 8 teaching of jesus christ to his followers, described in the gospels of matthew (chapter 13, verses 1 to 9), of mark (chapter 4, verses 3 to 9) and of luke (chapter 8, verses 4 to 8). 9 verses 3, 5, 7 and 9 of chapter 5 of the gospel of matthew (bíblia, 1999, p. 1106). 10 "when he comes, he will convict the world of sin, of justice and of judgment". text from verse 8 of chapter 16 of the gospel of john (bíblia, 1999, p. 1259). 11 to make this dialogue possible, we propose the use of diatopic hermeneutics. diatopic hermeneutics was defended by raimon panikkar (2002) as a methodology for intercultural dialogue. to be guided by this methodology is much more than the mere application of an interpretation technique. knowledge is important with the operationalization of conceptual distinctions, which sustain and legitimize it, such as concept / symbol, logos / mythos, alius / alter, multiculturalism / interculturality. the explanation and articulation of these conceptual pairs, among others, form the categorical framework presupposed by diatopic hermeneutics. there are several research groups that bring the issue of human rights closer to the so-called critical multiculturalism. among these groups, boaventura de souza santos is one of those that refer to diatopic hermeneutics and the concept of homeomorphic equivalents, proposed by raimon panikkar (2002). religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 212 proselyte discourse to a dimension of persuasion, which preaches peace and solidarity among men, and not persecution, destruction and death. on the importance of inter-religious dialogue, pfeffer explains: [...] dialogue opens new perceptions of truth and the absolute in the different religious traditions and is therefore incompatible with every kind of fundamentalism which claims to possess absolute truths. on the level of doctrines, dialogue cannot go beyond confrontations where every believer hides himself; on the level of faith, dialogue enables believers to find themselves in their deepest convictions, in those which give meaning to their lives. only faith, being a personal choice and not something that has been received to be transmitted, can be revised and enriched through dialogue with other people guided along a different path (pfeffer, 2009, p. 30). the fight against religious intolerance inevitably involves attempts and effective conduct aimed at promoting a respectful dialogue between the different, which applauds disparities, based on a universal ethic which values the human aspect of each being above any religious tradition or any philosophical conviction of its own. küng (2004, p. 17) goes so far as to affirm that “there will be no peace among nations unless there is peace among religions. there will be no peace between religions if there is no dialogue between religions. there will be no dialogue between religions unless there are global ethical standards”. a case worth highlighting in the analysis of inter-religious dialogue as a tool for combating intolerances on the grounds of religious beliefs is the hazy scenario that has formed contrary to islam, especially in the west. the fateful attacks of september 11, 2001 in the usa, in the minds of many, were enough to stigmatize all followers of islam as terrorists, inaugurating a wave of discrimination, prejudice and intolerance against muslims. although fundamentalist muslims see jihad12 as a sufficient foundation not only to defend the islamic faith, but also to promote terrorist attacks, such as blowing up aircraft in buildings or beheading enemies considered unfaithful, this interpretation cannot be said to be defended by all muslims, least of all by islam. 12 jihad is an arabic word meaning "conflict" or "competition", indicating some religious war of the muslims against the unbelievers, that is, members of other religions (champlin, v. 3, 2008a, p. 510). this concept exemplifies a concept better known and current in the west, notably derogatory and incomplete about the deeper meaning of jihad, a conclusion arrived at when one observes the breadth of the foundations, principles and values of islam, which are reduced to the idea that muslims use this "holy war" as an instrument of intolerance, persecution and violence against those who do not follow the islamic faith. (iqaraislam. o que é jihad ou guerra santa? accessed on: 28 jan. 2021. https://iqaraislam.com/o-que-e-jihad-ou-guerrasanta). https://iqaraislam.com/o-que-e-jihad-ou-guerra-santa https://iqaraislam.com/o-que-e-jihad-ou-guerra-santa edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 213 one of the ways found to minimize the negative effects of this intolerance of islam, after the aforementioned terrorist attacks and the absurd actions of the islamic state, was precisely the initiative of various religious denominations, especially the catholic church, to promote numerous meetings and events within and outside their institutional networks, such as the commission for ecumenism and interreligious dialogue and the house of reconciliation, in order to bring together religious leaders to discuss various ideas and projects aimed at stimulating fraternity among peoples and their beliefs (hammadeh, 2018, p. 37). as for the expected behavior of the brazilian public power, with regard to the fight against acts of religious intolerance, it must be emphasized that such a mission must integrate the political agenda of all federal entities, through affirmative actions and public policies in the short, medium and long term, duly organized, through social propositions and needs. one such measure is the creation of specialized police stations for the prevention and repression of crimes and conduct in general of religious intolerance, which has already taken place in the federal district, são paulo, rio de janeiro, mato grosso do sul, rio grande do sul and other federal units in brazil. the reporting channel established by dial 100, maintained by the federal government through the current ministry of women, family and human rights, also serves as an important tool for collecting reports of religious intolerance in our country. the creation and maintenance of specialized services in the structure of the public prosecutor's offices and public defender's offices also tend to offer respectable support in this endeavor of reprimanding deviations from the correct exercise of religiosity. an example of this is the commission to combat religious intolerance of the public prosecution service of the state of rio de janeiro. however, there are a number of other suggestions for government action that can be implemented, such as the creation of mediation chambers specializing in the area of religious freedom; the training of public servants and managers assigned to deal with this area; the institution of reparatory actions to ensure that victims receive compensation for damages suffered and the possible reconstruction of destroyed temples; the creation of councils for the defense and promotion of religious freedom; the training of teachers, pedagogical advisors and school headmasters on the principles of secularity and religious freedom, among others. it is noticeable that brazil has not reached levels of persecution comparable to those of countries where certain social groups, nourished by feelings of xenophobia, racial hatred, homophobia, religious warfare, anti-semitism, anti-arabism and other distortions, reach the point of organizing actions of extreme violence and cruelty. but there is also no reason to run the risk of paying to see intolerance become a characteristic mark of our society. this progression must be stopped. and of all that can be thought or done, the most likely effective instrument against religious intolerance is the awareness of each individual, even if one sees in it something religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 214 utopian or philosophical. suffocating the seed of the poisonous tree, or even allowing it to be deposited in the ground, are the most prudent ways of preventing the poisonous fruits of that tree from being consumed in the future. it is noticeable that brazil has not reached levels of persecution comparable to those of countries where certain social groups, nourished by feelings of xenophobia, racial hatred, homophobia, religious warfare, anti-semitism, anti-arabism and other distortions, reach the point of organizing actions of extreme violence and cruelty. but there is also no reason to run the risk of paying to see intolerance become a characteristic mark of our society. this progression must be stopped. and of all that can be thought or done, the most likely effective instrument against religious intolerance is the awareness of each individual, even if one sees in it something utopian or philosophical. suffocating the seed of the poisonous tree, or even allowing it to be deposited in the ground, are the most prudent ways of preventing the poisonous fruits of that tree from being consumed in the future. on the relationship between otherness and (in) tolerance, cerqueira filho make the following considerations: [...] the practice of alterity, from the earliest age, coupled with the diversity of the other, contributes powerfully to the practice of tolerance: on the other hand, by replacing the practice of alterity and diversity, from the earliest age, by isolation and the self-referential image of oneself, we create the conditions for the social practice of intolerance. (cerqueira filho, 2015, p. 422). while intolerance is the certainty of possessing an absolute truth, otherness is the wisdom of understanding that such truth can and should be regarded as relative, not out of hypocrisy, cowardice, uncertainties, or shady pacts with some lie, but out of respect for the conviction and expression of the other, after all, better than always being right is to have peace with oneself and to promote solidarity among men. in any case, it is important to point out that the concept of tolerance arises in the liberal tradition which sought to separate the powers of the state with the powers of the church, which were in constant political dispute at the time of the formation of modern national states, as well as to guarantee the freedom of expression of thought and autonomous action of individuals, so defended by locke in his classic liberalism. such a concept can be associated with the quest then undertaken to create a neutral public space guided and regulated by rationalism and scientificism, breaking with the tradition and religion dominant in its historical period (waldrun, 2009). this vision of tolerance is consolidated with the rise and hegemony of liberal thinking, and is configured as a culture of tolerance, or even a tradition of tolerance; thus, it is possible to consider the existence of a historical relationship between the origin of the modern liberal state and the birth of tolerance in a political sense. edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 215 this traditional culture of tolerance, however, presents a major problem for contemporary societies. the expected neutrality does not, strictly speaking, show itself to be a possibility of diverse manifestations, individual and/or collective, without arbitrariness in a common and socially shared space. this can be seen in a society and a state indifferent to the particularities of the different cultures and individualities that pass through the public space. the disproportionalities and inequalities between the different social groups within the same social environment remain, illusorily, protected by the neutrality of the state. liberal ideology, characterized by public-private division, guarantees individual freedoms only in the private sphere, maintaining the structure of domination and cultural hegemony in those societies and states in the public space; this clear difference between tolerance and tolerant attitude is revealed, that is, tolerance appears as indifference towards the other and his individuality, tolerating him, instead of recognizing him as different from himself and yet bearing the same social, political and legal rights and guarantees, understand, accepting him as such. the tolerance of the liberal state, paradoxically intolerant, less accepts and admits cultural, ethnic, social, religious and gender differences and diversity than it announces; on the contrary, it establishes legitimate ways of perpetuating intolerance in the public sphere, believing itself to be neutral, rational, out of context, free from historical, political, social and cultural conditioning. it ends up neglecting differences in the public sphere, and thus legitimizes intolerant actions on the part of members and organizations of dominant cultures. in other words, indifference is translated into neutrality. it is therefore urgent and necessary to review the concept of tolerance today. despite its transformations, the modern state, instead of stimulating peaceful coexistence, promotes and instrumentalizes intolerance and indifference towards otherness. from this perspective, it is necessary to make use of the pretension of a universality that is inclusive, together with the idea of an objective rationality with a liberal profile, and to seek understandings close to the conceptions proper to each culture. there are not enough universal parameters to contemplate peace and tolerance among different individuals. it is necessary, as walzer (1999) argues, to build solutions based on the history and culture of each social group, instead of trying to impose a specific form, supposedly neutral and rational, disregarding the context in which each group finds itself. the impossibility of adopting universal standards and formats to solve multi-ethnic, multicultural problems requires a new culture of tolerance, desired by walzer (1999). it cannot renounce relativism in the face of institutions and political regimes, as well as of the dominant culture itself, so that there can be a dialogue between this fragmented social world. without the imposition of a totalitarian, maximalist political model, which underestimates the diversity and differences inscribed in every social space. not only is relativism fundamental to the new culture of tolerance; the recognition of otherness, of the identity of the other, is crucial to promote understanding and peaceful religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 216 coexistence between different social, ethnic and religious groups. individual identity is only really built when in confrontation with difference; the recognition of one's own identity is only possible through the recognition of one's own diverse and different identity, providing a self-discovery of one's own individual together with the other. the other behaves less as an enemy than as the mirror by which the "self" can recognize itself from the similarities and dissimilarities, styles and spaces that take place through the recognition of "himself" in the other. from the contrast with the other, the "self" can distinguish its partialities so that without the other, without the dissimilar, the diverse, it is impossible for the "self" to recognize itself in all its aspects cultural, social, gender, religious so that intolerance denotes an experience of non-recognition, since the other is barred from participating in the sphere of the public and the common. recognition and relativism, conformed in the perspective of overwhelming the old idea of tolerance, may give a new and more efficient form of association between individuals belonging to different cultures; individuation can only be completed by opposing a different one, and, on the other hand, that no conception of good life is complete and fully pleasing, always needing to be opposed with other visions (walzer, 1999). this whole new culture of tolerance, which can be constituted from another epistemological point of view, is substantially closer to ubuntu "i am because we are". the understanding, achieved by this thinking of african roots, that the "i" only exists in harmony with another, and that a human being is a human being from the relationships he hints out with another human being, leads to the creation of conceptual tools and the implementation of current practices to identify/comprehend otherness; changing intolerance with a harmonious and fruitful relationship between different individuals. the "self" is only constructed, established, and identified in relation to the other, so that the other becomes a partner of the "i" rather than an adversary. therefore, some reflections on religious intolerance refer to observations of extreme negation of otherness, and even of flagrant paradoxes, such as imagining that the function of reconnecting the immanent to the transcendent, distorted by hatred, prejudice, and violence, entails exactly the opposite of this objective, which is to disconnect the individual from his fellow man and from divinity, breaking up horizontal and vertical relations. other contradictions that religious intolerance produces, in denying otherness, is to use belief to deny some belief, to preach the eternal, worrying more about the immediate, to be guided by the proselytism of a belief, to abuse the right to freedom of religion. hogemann, speaking about the ubuntu philosophy, praises the importance of otherness: the self always places itself in need of another, both for the self and for the other since one cannot be self without being another. the otherness edna raquel hogemann, sergio luis tavares the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 217 of others helps people to recognise their own uniqueness, their role, importance, duties and need. the otherness of others includes the diversity of languages, histories, values and customs, everything that constitutes human society (hogemann, 2017, p. 115-116). alterity, in terms of religiosity, is made impossible when the other and his or her belief are subjugated, interiorized, or invisible in their identity and power, and is related to the concept of interculturality, which seeks a balance of perspectives, so that religions can live together in solidarity and mutuality, in openness to the other and through harmonious and respectful communication, projecting experiences of plurality (ribeiro, 2016, p. 51). reality shows how far humanity must go to experience days of tolerance, not only in the field of religiosity, but in so many other areas of complex human coexistence. but one step at a time must be taken, or as the bible says, each day its own evil is enough13. what can no longer be admitted is that religious intolerance continues to stain the human journey through the centuries and defy the pillars of human rights. 6. concluding remarks at the end of this essay, it is concluded that religious intolerance is a serious deviation from the legitimate exercise of the human right to religious freedom, and that it has served as a nourishment for other forms of prejudice, discrimination, persecution, and even armed war. it has been seen that, in many cases, such conduct of intolerance is a distortion of the essence of the humanitarian right of religious freedom, and that it takes advantage of the proselytism of belief and the defense of faith, which are authorized expressions by law and morally acceptable. in this sense, intolerance ends up being a repellent attitude to religion, because it discourages many from approaching any religiosity, because of the risks of experiencing or even becoming victims of sectarianism and fundamentalist attitudes. the religiosity of minorities tends to be a more susceptible target of acts of intolerance, as is the case, for example, with african religions, still today in brazil, when adherents and temples of candomblé and umbanda suffer attacks from certain radical religious. it is observed that brazil, predominantly, remains a country of tolerance in the field of religions, through initiatives of inter-religious dialogues, ecumenical practices and syncretic varieties. 13 text from verse 34 of chapter 6 of the gospel of matthew (bíblia, 1999, p. 1109). religious intolerance: the maximum denial of alterity the age of human rights journal, 17 (december 2021) pp. 196-221 issn: 2340-9592 doi: 10.17561/tahrj.v17.6126 218 however, statistics and repeated reports of cases of religious intolerance show that the concern must cease to be theoretical and convolve into practical behavior, both by the public authorities, through affirmative action and public policies, and by civil society in general, based on processes of awareness and dissemination of habits of otherness. only with effective action can religious intolerance cease to be reported in our country, and true religious freedom will appear as a human right endowed with full social effectiveness, from which no one can claim to have any reservations. references bíblia. geneva study bible (1999). tradução de joão ferreira de almeida. 2. ed. são paulo: cultura cristã; barueri: sociedade bíblica do brasil. brasil. supremo tribunal federal. habeas corpus 82.424-2 / rs. paciente: siegried ellwanger. impetrantes: werner 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doi: 10.17561/tahrj.v17.6126 221 waldrun, j. 2009. locke: toleration and the rationality of persecution. em: mendus, s. (ed). justificando a tolerância: perspectivas conceituais e históricas. cambridge university press. pp. 61-86. https://doi.org/10.1017/cbo9780511735295.005 walzer, m. 1999. on toleration. traduzido por a. piseta. são paulo: martins fontes. winnifred f. s. 2014. the impossibility of religious freedom. accessed em 22 jul. 2021 https://tif.ssrc.org/2014/07/08/impossibility-of-religious-freedom/ zanone, v. laicismo. in: bobbio, norberto; matteucci, n .; pasquino, g. 1986. dicionário de política. brasília: unb. received: february 6th 2021 accepted: august 2nd 2021 https://doi.org/10.1017/cbo9780511735295.005 https://tif.ssrc.org/2014/07/08/impossibility-of-religious-freedom religious intolerance: the maximum denial of alterity abstract 1. introduction 2. religiosity and the dangers of religious intolerance 3. religious intolerance as a sequel to unbridled proselytism 4. religious intolerance in the brazilian multireligious mosaic 5. some instruments for reducing religious intolerance 6. concluding remarks references dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 331 dna databases for criminal justice system: a pathway towards utopian or dystopian future? rahime erbaş* abstract: dna evidence has increasingly become a widespread instrument in solving crime as well as crime prevention. as such, creation of dna databases or expanding the existing ones have been on the rise in the world. on the one side, storing dna profiles serves as a pivotal tool in crime solving, but on the other, privacy based on genome concerns occur. dna databases appears as an example of biotechnology today and in the future that are argued in a spectrum ranging from utopia to dystopia. this methodical approach, of course, is nothing new or novel for a dna database-related study. this study, however, aims to analyse the matter from the standpoint of criminal law and to discuss whether the modus operandi of criminal procedure on the use of dna databases paves the way towards utopian or dystopian vision for future. it does not consider the argument that the journey in criminal justice, as opposed to the 20th century, today has been directed towards ex-ante prevention rather than expost correction. because the legitimacy of such expansion of the scope of criminal law still remains as unanswered question indeed, even if today, dna might be salient for the purpose of prevention rather than detection. as such, after introducing theme and indicating scope of the study (i), it provides an overview regarding the involvement of dna as evidence and respectively database in criminal justice system in the world (ii). whether databases established for criminal justice system serve for dystopian? keywords: dna evidence, dna database, crime-solving, criminal law, utopia, dystopia. summary: 1. introduction. 2. the involvement of dna as evidence in criminal courts. 3. solving criminal cases as legitimate aim. 4. creating a system or non-system approach? 5. measures to mitigate the tensions: privacy concerns. 6. technology as a tool in the service of criminal courts. 7. criminal justice system as a good start point for “function creep”? 8. concluding thoughts. 1. introduction “when a dna database initially presented as a tool for solving serious crimes is expanded to cover volume crimes, is that a new purpose or still the same one: catch as many criminals as possible?” (dahl & rudinow, 2009, p. 86). imagine a scenario in which a country that has gradually included dna evidence into its criminal justice system, soon after the discovery of the significance of dna profiling for crime-solving. as such, initially dna testing was conducted on a case-bycase basis in the frame of expert evidence. after having the possibility to store dna profiles, profiles being conducted for serious crimes such as homicide, murder and rape were included in a base, which brought the dna database in the volume of a. because * assistant professor at the university of istanbul, faculty of law, the chair of criminal law & criminal procedure law, turkey (rerbas@istanbul.edu.tr). mailto:rerbas%40istanbul.edu.tr?subject= dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 332 thanks to that database, even cold cases could be solved, the crime catalogue was extended to less serious crimes such as theft and damaging property and this brought dna database in the volume b. after a while, excluding dna profile of children from including in database did not seem having any particular ground and so dna database in the volume c was formed. later, seeing the benefits of such database in criminal justice system, it was also given to the service of civil and administrative courts and database in the volume d occurred. then, the aim of database was extended to finding missing people. as such, dna samples not only from the suspect, the accused or the victim, but also from volunteers were taken and dna database in the volume e came into being. then, the country began to cooperate with its neighbour countries for sharing databases with each other in order to fight the cross border acting criminals. in so doing, dna databases with different alphabets fused with each other. ultimately, the question emerges: why shall only justice system benefit from dna technology? in this scenario, having a dna database in the volume of a or b might be sufficient to serve criminal justice system for that time period. however, this country did not content itself with it, rather constantly sought for creating more voluminous ones. why did this country have a tendency towards so called “allinclusive!” approach to database (tracy & morgan, 2000, p. 645)? is that an outcome of utopian or dystopian vision for future? dna technology appears as a significant examples of biotechnology on the changing the world, indeed. dna databases are rapidly expanding in the world (erbaş, 2017, p. 167); (uygun, 2017, p. 91). regarding whether having dna database poses an utopia or dystopia, at first glance, the argument that dna databases for criminal justice system paves a way towards dystopia attracts the attention in the literature. to illustrate, the works alike marx’s as “dna ‘fingerprints’ may one day be our national id card” (marx, 1998), follow as “big brother and his science kit: dna databases for 21st century crime control” (tracy & morgan, 2000), “‘it all happened so slowly’on controlling function creep in forensic dna databases” (dahl & rudinow, 2009), “brave new circuit: creeping towards dna database dystopia in u.s. v. weikert” (rice, 2009), “circuits of surveillance” (williams & johnson, 2004). on the contrary, the opposite argument that having dna database for criminal justice system does not represent dystopia exists in the literature (etzioni, 2004), saying that “…dna usages often can enhance both public safety and individual rights” (etzioni, 2004, p. 203). however, it should be noted that utopian vision on this context, finds overwhelmingly in the eyes of public (cutter, 2006, pp. 2-3) by virtue of tv’s programmes such as a drama called crime scene investigation (csi) in the usa, which is later coined as csi effect (machado & granja, dna technologies in criminal investigation and courts, 2020, pp. 50-51) that draws an utopian vision on dna evidence in public eyes (tyler, 2006). further, the news having such headline as “police hope dna from helmets will solve 1982 troubles murder case” (mcdonald, 2020) may have similar effect on public (amankwaa & mccartney, 2019, p. 45). of course, the justice authorities have had a utopian vision on dna database so that databases came into being. it is not surprising to observe the statements above; “as we explore the impact of the ndnad [the uk’s database], and by association other databases designed for the same purpose, we are faced rahime erbaş the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 333 with complex utopian visions of a criminal justice service armed with an all powerful database for the benefit of society, contrasted with the dystopian vision of a criminal justice service, armed with the identical, all powerful database intent on mischief to our detriment” (cutter, 2006, p. 11). the study bases on arguments of literature regarding practice, but not practice itself. indeed, cutter concludes that “in essence, we remain to unable to navigate between the competing visions of the future” (cutter, 2006, p. 12). it is very true that “new technologies that provide answers also raise new questions” (marx, 1998). nevertheless, the question arises whether dna databases for criminal justice system on the way towards dystopia are really? do they have to hold either utopian or dystopian way? this way of thinking as utopian or dystopian (tokgöz, 2020, pp. 453-454) is noted as ‘science fiction’, not a ‘science potentia’ (cutter, 2006, p. 6). there is, albeit, a benefit of looking into theme through the lens of utopia and dystopia as cutter explains further; “thus whilst utopian and dystopian visions of the future can often have the effect of polarising debates, in the early stages of the debate their presence is perhaps vital to allowing the framing of the debate and therefore facilitating this balancing process” (cutter, 2006, p. 6). this study, of course, considers ‘science potentia’, not fiction. however, it takes the opportunity to analyse and discuss the risks and benefits of dna databases as an example of biotechnology today and in the future by referring a spectrum ranging from utopia to dystopia. this methodical approach is nothing new or novel for a dna database-related study in social sciences. however, this study mainly focuses on exactly where criminal justice system stands in this discussion regarding whether the human being’s pathway is towards utopia or dystopia in future. in so doing, this study considers the core question on whether and if so, how, criminal justice system through the use of dna, referred as “forensic dna usages” (etzioni, 2004, p. 201), contributes to this way visioning. as such, the aim is not to reach an outcome, rather to bring out the proper questions and points stemming from the position of criminal justice system on the use of dna evidence, respectively applying databases. therefore, even if today, dna might be salient for the purpose of prevention rather than detection, this study does not consider the argument that the journey in criminal justice, as opposed to the 20th century, today has been directed towards ex-ante prevention rather than expost correction. because the legitimacy of such expansion of the scope of criminal law still remains as unanswered question, indeed. within this aim, after proving an overview regarding the involvement of dna as evidence and respectively database in criminal justice system in the world, the study firstly highlights the solving crime as a legitimate aim in use of dna database. within this aim, it questions whether refraining from creating a database as system represents a way to prevent a dystopian future. as such, the study displays the tension between this legitimate aim and individual rights, inter alia, right to privacy. then, it considers dna evidence as a technological tools in the courts. ultimately, whether the use of dna by criminal justice system serves as a starting point for the so called “function” creep phenomenon. dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 334 2. the involvement of dna as evidence in criminal courts the advent of dna double helix structure and the discovery of the significance of dna profiling for crime-solving brought dna analysis to criminal courts’ service. the first use of dna in solving crime was in 1987 in the united states in which florida rapist was convicted by the use of dna evidence (james, 2009). consequently, “receiving evidentiary acceptance of dna” (kaye, bieber, & primorac, 2014, p. 509) samples in trials in the usa, it was considered as expert evidence. it was only 1990 when it was stated that “the fbi currently is exploring ways to enter the dna profile identifying information into a centralized computer databank…” (gorgey, 1990, p. 382). at the beginning, it was not distinguished from another type of expert evidence. as the courts faced some special problems regarding dna evidence, scientific evidence specified rules are provided (kaye, bieber, & primorac, 2014, p. 510). the usa has its own national dna database called codis (combined dna index system) since the year of 1994. the fbi retains and searches dna profiles submitted to codis by federal and state law enforcement authorities (silverstein, 2013). this shows that dna evidence has increasingly become a widespread instrument in solving crime in the usa (erbaş, 2017, p. 164). as a matter of fact, a great emphasis on use of dna is placed as evidence in the court application, as it is considered as a scientific evidence and it can avoid arbitrariness in determining conviction. professor jonathan j. koehler has written that “dna identification has been and will continue to be powerful evidence against criminal defendants” (koehler, 1993, p. 21). however, at criminal trials, it serves as a tool just as being fingerprints or witness testimony. respectively, dna evidence has two sides as bright and dark. the innocent may be exonerated thanks to dna evidence as well as be found guilty after mismatched dna profile. even if dna evidence is of scientific and it, thus, appears as reliable evidence for criminal trials, it cannot be asserted as absolute infallible evidence (thompson, forensic dna evidence: the myth of infallibility, 2013). elster states that; “at times, dna evidence has been misused or misunderstood, leading to miscarriages of justice. a man with parkinson’s disease who was unable to walk more than a few feet without assistance was convicted of a burglary based on a partial dna profile match” (elster, 2017). indeed some types of errors such as “false association”, “crosscontamination of samples”, “mislabeling of samples” and “misinterpretation of the results” (thompson, dna evidence in the o.j. simpson trial, 1996, pp. 229-233; gill, 2012, p.56) can occur and so mislead the criminal justice system (machado & granja, dna technologies in criminal investigation and courts, 2020, p. 52). o. j. simpson casemurder casewas discussed as an important example for both strengths and weaknesses of dna evidence in criminal trial (thompson, dna evidence in the o.j. simpson trial, 1996, p. 827) as o. j. simpson was first charged for the murder by an amassed dna evidence through testing in different laboratories that were introduced by the public prosecutor (thompson, dna evidence in the o.j. simpson trial, 1996, p. 828) and then he was acquitted thanks to challenging by science on dna rahime erbaş the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 335 evidence in criminal trial (thompson, dna evidence in the o.j. simpson trial, 1996, p. 857). however, he was subsequently held liable for the same murder case in the civil trial (encyclopaedia britannica, 2020). indeed, william c. thompson has conveyed the police officer’s concern by stating that “…[b]etween 1995 and 2006, a period when dna testing was becoming more common, the clearance rate for rape cases reportedly declined by 10 percent” (thompson, forensic dna evidence: the myth of infallibility, 2013, pp. 250-251). creating a dna database for the criminal courts’ service has not been something peculiar to the usa law. the creation of dna databases for use in criminal cases is prevalent among the european union countries (santos, machado, & silva, 2013, p. 7). the uk has had reputation (s and marper v. the united kingdom, 2008) for its enormous national dna database (called ndnad) (tracy & morgan, 2000, p. 645). it is considered as “the largest dna database for criminal justice purposes in the world” (cutter, 2006, p. 6). “total number of subject sample profiles retained on ndnad” as of 30th june 2019 is reported by home office as in the amount of 6.423.123 (home office, n.d.) in comparison with the other european countries as well as the usa (amelung & machado, 2019, p. 591). in fact, the eu mandates the member states to create their own dna database to facilitate cooperation among the member countries in criminal affairs. for that purpose, the prüm decisions (the multilateral treaty in 2005 and the decisions in 2008) (eurlex ), in art. 2, entitled “establishment of national dna analysis files” reads in the 1st paragraph as below; “member states shall open and keep national dna analysis files for the investigation of criminal offences. processing of data kept in those files, under this decision, shall be carried out in accordance with this decision, in compliance with the national law applicable to the processing”1. as for the jurisdictions in which no dna database still exists, turkey appears an example for it. turkey, an eu candidate country since 1999 (enlargement, n.d.), and one of the founding members of the council of europe (part of the ecthr jurisdiction) (council of europe), the potential of dna for criminal cases has reflected on turkish legal system just as other jurisdictions in the world. there was an attempt to create a dna database in 2001, but it was not signed into law. in 2005, dna evidence specified regulations were first introduced into the turkish criminal justice system and broadly regulated by the new turkish criminal procedure code as scientific evidence under the title of “molecular genetic investigation”. 3. solving criminal cases as legitimate aim at the first sight, seeing the words, ‘dna’ and ‘storing’, together may sound as a dangerous couple against individual rights, particularly against privacy. how proper is it to 1 council regulation (ec), 2008/615/jha of 23 june 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime [2008] oj l 210/1 art 2. dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 336 seek for utopian or dystopian vision when dna databases serve for criminal justice system purposes, indeed? when a crime is committed, it poses already a negative vision for a society. therefore, it is difficult to visualize retaining dna profile in a database for such use an utopia or dystopia where a crime stands as theme. because the crimes committed refers to a sphere on which such use dna by criminal justice system is justified. for example; “cold case murder of montana girl, five, is solved 46 years later after dna evidence from the scene identified killer as a man who died in 2012” (jeweris, 2020). this was a news headline in daily mail in october 2020. in a similar vein, another news in 2020 reads as “police hope dna from helmets will solve 1982 troubles murder case” (mcdonald, police hope dna from helmets will solve 1982 troubles murder case, 2020) on which it is stated that; “...[i]nquiry team into the triple murder has “made significant progress applying modern forensic techniques that would never have been available and would not have been known about by those responsible for the attack in 1982” (mcdonald, police hope dna from helmets will solve 1982 troubles murder case, 2020). these examples indicate that having a dna database ensures to protect individual rights better (etzioni, 2004, p. 203). in fact, the statistics shows that “…crimes are more readily solved if there is dna evidence” (cutter, 2006, p. 7). as for the frequencies of the use of dna evidence, in the usa history, 375 persons have been exonerated through post-conviction dna testing so far (dna exonerations in the united states, n.d.). when it comes to the use of dna for forensic purposes, etzioni draws an inference that no one argues for a total banning (etzioni, 2004, p. 204). because the solving crime is legitimized through the common good, public as beholder of that interest (etzioni, 2004, p. 209). the questions on when and how such use lose their justification are crucial, however. it was stressed “what safeguards need to be in place to govern forensic dna databases?” (dahl & rudinow, 2009, p. 88). furthermore, the question on whether or not there is a place to use dna evidence to deal with crimes like diseases to wipe off from society. put differently, the use of dna evidence for prevention of prospective crimes is controversial issue. here comes the measures to mitigate tensions between state’s interest in solving crimes and individual rights and freedoms, especially right to privacy. 4. creating a system or non-system approach? considering creating dna database is identical with establishment of system on the use of dna for justice system, countries which do not have any dna database appears a having no-system on such use. do countries on which there is no dna database represent the way towards utopian visions? do ‘dna’ and ‘database’ as together lay a dangerous couple against privacy under any circumstances, indeed? whether creating dna database is inevitable or not is arguable (erbaş, 2017, p. 169), the use of dna evidence in criminal rahime erbaş the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 337 procedure is today inevitable (atalay, 2019, p. 177). as a matter of fact, it is noted that its reliably is exaggerated in judicial practice (machado & granja, dna technologies in criminal investigation and courts, 2020, p. 46). seeing that, having system as a unique database may provide more ensures to protect individual rights across a jurisdiction rather than taking dna samples on a case-by-case basis in the frame of expert evidence that is kept on a case file. for example, turkey does not have its national dna database. however, a great emphasis on use of dna is placed in the court application in turkey, as it is seen as a scientific evidence and can avoid arbitrariness in determining conviction. in many cases, the turkish court of cassation (yargıtay), overruled the conviction by arguing that if sample is obtained, it is to be subject to analysis and then all evidence must be collectively assessed by corroborating each other. the court stated that a person cannot be convicted by basing only on her statements and held that samples obtained from t-short of the accused must be subjected to dna analysis2. turkish scholars call on creation of such database by ensuring its safety measures by law (uğurlubay, 2017, pp. 82-83; atalay, 2019, p. 180). at the current state of using dna in criminal courts, these safety measures are argued as limited (küzeci, 2010, p. 314),. creating a dna database may provide a system based approach to protect privacy for dna information which is considered as sensitive personal data (uygun, 2017, p. 91; atalay, 2019) such as “ancestry or susceptibility to disease” (ashworth & redmayne, 2010), which demands specific protection. that is to say, this is the legal recognition of the proposition that every piece of information about a person is considered as personal data, and that dna evidence implies a level of sensitivity. in that regard, it could be argued that the prüm convention functions as unity in dna database as well as dna cooperation among the eu member states. 5. measures to mitigate the tensions: privacy concerns creating or leading a criminal justice system that allows to use of modern scientific techniques at any cost and unproportionally for the sake of delivery of criminal justice system and rights and freedoms of any individual implies a contradiction with the echr case-law. “the court observes that the protection afforded by article 8 of the convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests”3. a considerable tension exists between retention and expunction of dna samples and results as each of them lies as a core point between competing interests in ensuring right to privacy and the state’s interest in solving crimes (erbaş, 2017). because whereas 2 yargıtay 2 cd, date: 06.03.2019, e. 2017/475, k. 2019/4351. 3 s and marper v. the united kingdom app no 30562/04 and 30566/04 (echr, 4 december 2008) para 112. dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 338 the utility of dna samples in the criminal justice system receives a wide spread of acknowledgement, the growth of large size of dna database appears as a highly controversial issue (ashworth & redmayne, 2010, p. 141). therefore, a question whether a national dna database can be justified by the state’s interest in solving and fighting against crimes or not arises. to the echr states; “…[t]hat the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and dna profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent state has overstepped any acceptable margin of appreciation in this regard” (s and marper v. the united kingdom, 2008, para.125). however, the echr currently approaches to the use of dna evidence, respectively databases, in bold outline, i.e, it does not provide any detailed prerequisites displaying the use of dna is proportional and not at any cost. though, that the infringement of fundamental rights in using of dna evidence in criminal trial, today, is more obscure and wide-ranging than it was. there are some set of principles in govern personal data (küzeci, 2010). in particular, in mitigating this tension comes the principle of proportionality in, which brings out some criteria which are mainly classified as entry, storage and destruction criteria (erbaş, 2017, p. 171; machado & granja, dna databases and big data, 2020, p. 59). santos, machado and silva shows that even among the eu member states, these criteria to govern entry, storage and distraction vary highly (santos, machado, & silva, 2013; machado & granja, dna databases and big data, 2020, p. 62). this proves that the current tendency is lack of systematic approach to the principle of proportionality in dna database through using these criteria (erbaş, 2017, p. 176). 6. technology as a tool in the service of criminal courts dna evidence is a scientific evidence and as such highly reliable in delivery of justice. yet, cutter comments that “is it really a concern that if (in the future) the police had the ability to screen for genetic indicators of personality, they might assume these to be definitive indicators of guilt or innocence?” (cutter, 2006, p. 5). indeed, the position of dna sampling as being reliable scientific evidence while retaining forensic science related problems such as cross-contamination or false association problems on the forensic medicine side of dna samples, for criminal justice authorities, this contrary nature in dna evidence makes it the most useful evidence and the most challenging evidence! nevertheless, the question that in favour of whom does technology develop remains untouched. in favour of the justice authorities (and victims) or the perpetrators or both of them? biotechnology and overall technology develops in a neutral way. technology does not always itself develop for the favor of justice system, victim and rahime erbaş the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 339 against perpetrator. dna technology stands as a tool. it is people who decide on which purpose it should be used. today, the dna technology provides the courts with the possibility for dna profiling, storing and matching to solve the crimes. in the future, the state of dna technology may come to the point which provides the perpetrator with the possibility to disguise her/himself, and consequently, the courts may refrain from resorting to dna technology. consider, for example, fingerprints as evidence in justice system. today, dna has been seen more valuable evidence than fingerprints because fingerprint may go change throughout the life of a person such as skin disease. for which purposes dna technology is going to be useful today remains still unpredictable. does this unpredictable feature of bio-technology has to automatically lead to the dystopian vision? for example, technology is changing in a way that allows to re-structure dna as it is so called “the crispr/cas9 genetic scissors” (the royal swedish academy of sciences, 2020). consequently, there is a risk for a country having such a database to end up with a garbage dump of dna profiles. machado & granja emphasise the high cost of creating and maintaining such database (machado & granja, dna databases and big data, 2020, p. 60). 7. criminal justice system as a good start point for “function creep”? in the above mentioned scenario, having a dna database in the volume of a or b might be sufficient to serve criminal justice system for that time period. however, this country did not content itself with it, rather constantly sought for creating more voluminous ones. why did this country have a tendency towards so called “all-inclusive!” approach to database (tracy & morgan, 2000, p. 645)? the crime ratio may be doubled in the future? or, the way in which committing a crime would become more complicated for justice authorities than it was? it might be the crime statistics that approve that, indeed? in that point, the concept, function creep (dahl & rudinow, 2009), might appear. “function creep” is defined in dictionary as “the gradual widening of the use of a technology or system beyond the purpose for which it was originally intended, esp when this leads to potential invasion of privacy” (collins english dictionary, 2021). it was criminal justice system to have brought the first use of dna technology. did criminal justice system in so doing provide function creep with a basis? indeed, it was only 1998 when it was pointed out that; “once dna analysis comes to be seen as a familiar and benign crime control tactic, will the way be paved for more controversial uses--for example denial of certain types of employment or insurance, or even the right to have children in those whose genetic makeup indicates they may be prone to particular illnesses or forms of anti-social behavior?” (marx, 1998). dna technology appears as a significant examples of biotechnology on the changing the world, in fact. however, this comment fundamentally represents a dystopian way of thinking on dna database. dna databases for criminal justice system: a pathway towards utopian or dystopian future? the age of human rights journal, 18 (june 2022) pp. 331-343 issn: 2340-9592 doi: 10.17561/tahrj.v18.6592 340 8. concluding thoughts the use of dna is, of course, stands as inevitable in the field of criminal procedure at pre-trial and trial phase. consequently, the dna databases has been rapidly extending in the world. dna technology appears as a significant examples of biotechnology on the changing the world. therefore, the question whether that pathway of criminal justice system regarding dna databases towards utopian or dystopian future arises. although the way of thinking as utopian or dystopian represents ‘science fiction’, this study attempted to look into theme through the lens of utopia and dystopia. it is not difficult to draw an inference that when “dna” (personal data) and “store” (database) comes together, they pose a negative visioning, a dystopia, for future in terms of individual rights and freedoms, inter alia, privacy. however, the study aims to overcome some clichés on the dna database and its forensic use. it is very true that dystopian visioning may stimulate a sense of a caution in society for the individual rights and freedoms. nevertheless, this inference would be a superficial and would not meet the realities. as such, there is an obligation of a state to solve the crimes. in that respect, a legitimate aim may exist. because of this legitimate aim, it may be even argued that criminal justice system serves as a starting point for the so called “function” creep phenomenon. on the other hand, having a database is not automatically against individual rights and freedoms, i.e., a database may represent a system that is governed by the principles and rules of democratic state as the principle of proportionality. what’s more, that technology develops quickly does not mean that the individual automatically lose their control on their rights in the future. technology develops in a neutral way. that today some phase of this development serves for criminal courts does not refers to that this will be the same in the future. references amankwaa, a. o., & mccartney, c. 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(2020). dna databases and big data. in h. machado, & r. granja, forensic genetics in the governance of crime (pp. 57-70). singapore: palgrave macmillan. https://doi.org/10.1007/978-981-15-2429-5_5 machado, h., & granja, r. (2020). dna technologies in criminal investigation and courts. in h. machado, & r. granja, forensic genetics in the governance of crime (pp. 45-56). singapore: palgrave macmillan. https://doi.org/10.1007/978981-15-2429-5_4 marx, g. t. (1998, april 20). dna 'fingerprints' may one day be our national id card. retrieved from https://web.mit.edu/gtmarx/www/dna.html adresinden alındı mcdonald, h. (2020, october 27). police hope dna from helmets will solve 1982 troubles murder case. retrieved october 2020, from the guardian: https://www. theguardian.com/uk-news/2020/oct/27/police-hope-dna-from-helmets-will-solve1982-troubles-case adresinden alındı mcdonald, h. (2020, october 27). police hope dna from helmets will solve 1982 troubles murder case. retrieved from the guardian: https://www.theguardian.com/uk news/2020/oct/27/police-hope-dna-from-helmets-will-solve-1982-troubles-case adresinden alındı rice, a. (2009). brave new circuit: creeping towards dna database dystopia in u.s. v. weikert. roger williams university law review, 14(3), 691-728. s and marper v. the united kingdom, 30562/04 and 30566/04 (echr december 4, 2008). santos, f., machado, h., & silva, s. (2013). forensic dna databases in european countries: is size linked to performance? life sciences, society and policy, 9, 1-13. https://doi.org/10.1186/2195-7819-9-12 silverstein, j. 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(2020, october 7). the nobel prize in chemistry 2020. retrieved from https://www.nobelprize.org/uploads/2020/10/ presschemistryprize2020.pdf thompson, w. c. (1996). dna evidence in the o.j. simpson trial. university of colorado law review, 67. thompson, w. c. (2013). forensic dna evidence: the myth of infallibility. in s. krimsky, & j. gruber, genetic explanations: sense and nonsense (pp. 227-347). harvard university press. https://doi.org/10.4159/harvard.9780674067769.c19 tokgöz, h. b. (2020). cezalandırmanın amacı ve bu bağlamda ütopyalar üzerine bir değerlendirme. dokuz eylül üniversitesi hukuk fakültesi dergisi, 22(1), 431467. https://doi.org/10.33717/deuhfd.704815 tracy, p. e., & morgan, v. (2000). big brother and his science kit: dna databases for 21st century crime control. journal of criminal law and criminology, 635-690. https://doi.org/10.2307/1144232 tyler, t. r. (2006). viewing csi and the threshold of guilt: managing truth and justice in reality and fiction. the yale law journal, 115(5), 1050-1085. https://doi. org/10.2307/20455645 uğurlubay, g. a. (2017). almanya, i̇sviçre ve avusturya hukuku bağlamında türk ceza muhakemesi hukukunda adlî dna analizleri. journal of penal law and criminology, 5(2), 29-87. uygun, b. b. (2017). databases and criminal procedures in switzerland and turkey with regard to european council’s standards. journal of penal law and criminology, 5(2), 89-106. https://doi.org/10.26650/jplc360265 williams , r., & johnson, p. (2004). circuits of surveillance. surveill soc. , 2(1), 1-14. https://doi.org/10.24908/ss.v2i1.3324 yargıtay 2 cd, date: 06.03.2019, e. 2017/475, k. 2019/4351. received: september 6th 2021 accepted: november 23rd 2021 https://www.nobelprize.org/uploads/2020/10/press https://www.nobelprize.org/uploads/2020/10/press https://doi.org/10.4159/harvard.9780674067769.c19 https://doi.org/10.33717/deuhfd.704815 https://doi.org/10.2307/1144232 https://doi.org/10.2307/20455645 https://doi.org/10.2307/20455645 https://doi.org/10.26650/jplc360265 https://doi.org/10.24908/ss.v2i1.3324 dna databases for criminal justice system: a pathway towards utopian or dystopian future? 1. introduction 2. the involvement of dna as evidence in criminal courts 3. solving criminal cases as legitimate aim 4. creating a system or non-system approach? 5. measures to mitigate the tensions: privacy concerns 6. technology as a tool in the service of criminal courts 7. criminal justice system as a good start point for “function creep”? 8. concluding thoughts references the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 44 testimonies of victims of human rights violations as primary sources in the reports by united nations bodies eloísa gonzález hidalgo1 abstract: victims of crimes, victims of abuse of power and victims of gross and systematic human rights violations have had little relevance to international law. however, since 1985, international human rights law has taken an interest in them and has created four instruments, which establish different notions of victim, as well as a catalogue of rights. since then, victims have become increasingly prominent in processes involved in seeking justice, truth and reparation. recently, victim’s testimonies are used as one of the indicators, although not the only one, for measuring compliance and protection of human rights rules in the united nations system. keywords: international law, human rights, testimonies, victims, data generation. contents: introduction; i. united nations standards relating to victims. typology; ii. victims’ rights within the universal system; iii. generation of data and information based on victims' testimonies; iii.1 events-based data: collecting testimonies; conclusions; references. introduction according to drapin (drapin, 1974) as the state gradually took responsibility for the administration of justice, any individual who broke the law became the main character of judicial strata, leaving the victims in the background and even consigned to oblivion. since states had the upper hand in this regard, international law paid little attention to the victims. from the end of the second world war, victims of human rights crimes and violations gradually started to be taken notice of through the development of international human rights law, international criminal law and international humanitarian law. while it is true that these three branches of international law have focused on sanctioning or punishing the perpetrators of crimes and violations2, from the second half 1 former postdoctoral fellow at the pedro arrupe human rights institute, university of deusto, spain (eloisagh@deusto.es). 2 international human rights law deals with human rights violations committed by states, while international criminal law is responsible for non-state authors and international humanitarian law seeks to condemn both state and individual perpetrators. for more information about this issue, see: clapham, a. (2006) human rights of non state actors, oxford: oxford university press. singer, p. w. (2005) ‘outsourcing war’, foreign affairs, 84 (2), p. 119-132; hoss, villalpando and sivakumaran (2012) ‘nicaragua: 25 years later ‘, leiden journal of international law, 25 (1), p. 131-133. testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 45 of the 20th century victims have slowly seen their importance recognised in the processes seeking justice, truth and reparation within international human rights law. this is mainly due to three reasons. the first reason is that states have been constituted into social and democratic states of law where the criminal process is conceived as an instrument for safeguarding the recognised system of fundamental values, rights and freedoms. this process is intended to guarantee the rights of both people accused of committing a crime, and of the victims and of the rest of the population (sanz hermida, 2009, p. 25). for victims of human rights and humanitarian law violations, this means that they must be safeguarded and their rights must be protected. the second reason is that it is necessary to meet the demands for justice, truth, and compensation, as well as reparation to the victims for the psychological, physical, social, political, and other consequences that have been caused by the serious violations committed during and after armed conflicts. some of these conflicts have been ethnic or religious, or been carried out by totalitarian regimes, etc. and, the third reason is the emergence of a new legal discipline, namely victimology, which has given the victims of crime an increasingly active role both in criminal law and in international human rights law. victimology studies the victim from several perspectives: (a) bio-psycho-social; (b) criminological, and (c) legal, that is, the victim’s relationship with substantive law and with the criminal process, which is directly linked to the issue of reparation and justice.3 this has resulted in the construction of a system of protection and victim's rights that states are obliged to comply with; otherwise they must repair the harm caused. similarly, channels have been created in the universal system for testimonies to be treated as sources of information in the collection of data on the human rights situation in un member states. they are to be included in the indicators to measure compliance with and protection of human rights standards. the aim of this paper is to visualize the delayed attention that international law has given to the victims, the victim-related instruments established under international human rights law, and the inclusion of testimonies within the indicators for monitoring and assessing compliance with human rights in the universal system. it is important to mention that this paper does not elaborate an in-depth analysis on this subject but it is about a general global situation. however, an in-depth study on the importance of the testimonies of victims of human rights violations as primary sources in the reports by united nations agencies is urgent and necessary. the methodology utilized in this paper was collected via a systematic and comprehensive desk review of secondary sources. the desk review permits a comparative analysis of the existing literature, primarily qualitative. first, four international 3 for more information about victimology, see: marchiori, h. (1988) criminología: la víctima del delito. méxico: porrúa. groenhuijsen m. (2014) ‘the development of international policy in relation to victims of crime’, international review of victimology, 20, pp. 31-48. o'connell, m. (2008) ‘victimology: a social science in waiting?’ international review of victimology, 15 (2), pp. 91-104. cerezo domínguez, a. i. (2010) the role of victims in the preparation of criminal laws, seville andalusian interuniversity institute of criminology. eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 46 instruments related to victims of crime, victims power abuse and victims of gross violation of human rights were studied in order to determine the subject of study and, on the other hand, to know victim’s rights in the universal system. second, documents from the office of the united nations high commissioner for human rights concerning human rights indicators for measurement and application were reviewed. finally, some literature concerning human rights research methods was reviewed. this paper is divided into three parts. with the aim of identifying the subject of study, the first part includes the different notions of the term victim, based on four universal human rights instruments relating to victims: (a) the declaration of basic principles of justice for victims of crime and abuse of power; (b) the declaration on the protection of all persons from enforced disappearance; (c) the international convention for the protection of all persons against enforced disappearances; and (d) the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law. the second part uses these instruments to deduce a set of rights to which victims are entitled, on the grounds that these rights reveal the seriousness of the violations, and justify the necessity to rely on the experiences and address the needs of people who have suffered them. the third part shows how victims’ testimonies have become primary sources of data and information generation, in addition to being included as one of several indicators to measure compliance with and protection of human rights standards. the latter has made it possible to use the methodology of the social sciences for collecting statements, and systematising and analysing the information collected. this has allowed a multidisciplinary approach to be adopted, albeit not without problems. i. united nations standards relating to victims. typology although the international community has been concerned with the situation of victims of human rights crimes and violations, at present there is no single, universallyaccepted definition of what a victim is under international law. each of the universal instruments relating to victims provides a definition and outlines some elements from which the meaning of the term can be derived. four instruments have been created that contain universal norms related to victims, which also establish different types of victims. this is in addition to the definition provided by the international criminal court which will not be discussed here.4 the first of these instruments is the declaration on fundamental principles of justice for victims of crime and abuse of power, general assembly resolution 40/34, adopted on 29 november 1985.5 this declaration is the first universal norm that places victims at its 4 for more information, see articles 5, 68, 75 and 79 of the rome statute and rule 85 of the rules of procedure and evidence of the international criminal court. see also olásolo alonso, h. (2008) ‘cuestiones procesales y procedimentales sobre la posición de las víctimas ante la cpi’ in kai, both et al. cuestiones esenciales en la jurisprudencia de la cpi, granada: comares, p. 60-70. 5 the declaration on the fundamental principles of justice for victims of crime and abuse of power emanated from the discussions of the seventh united nations congress on the prevention of crime and the testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 47 core, including both victims of crime and victims of abuse of power. the definition provided for victims of crime is as follows: 'victims' means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse of power. this definition includes family members or persons who have an immediate relationship with the direct victim, as well as persons who have suffered harm when intervening to assist or support the victim: ...also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation. the term ‘victims of abuse of power’ is also defined: 'victims' means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognised rules relating to human rights. the second instrument is the declaration on the protection of all persons from enforced disappearance, adopted by general assembly resolution 47/133 of 18 december 1992. the declaration does not specifically establish the concept of a victim of enforced disappearance, but it indicates that any person who has suffered enforced disappearance (a crime against humanity) will be considered a victim: ... enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of government, or by organised groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. the third instrument related to victims is the international convention for the protection of all persons from enforced disappearances, of 20 december, 2006 (the treatment of offenders, held in milan, italy, on 26 august to september 6, 1985. on 29 november of the same year, the general assembly approved the text recommended by the congress at the same time as it approved resolution 40/34. eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 48 convention). article 24.1 of the convention describes the concept of victim of enforced disappearance as being: ...the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. the convention contemplates two types of direct victims, on the one hand, the disappeared person and, on the other, any individual who has suffered direct harm as a result of an enforced disappearance. the fourth instrument is the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, adopted by resolution 2005/35 of the human rights commission of united nations, on 19 april, 2005. it mentions both victims of human rights violations and victims of serious violations of international humanitarian law. it also distinguishes between two types of victims, direct and indirect. direct victims are: ...persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. while indirect victims are described in the following terms: ... where appropriate, and in accordance with domestic law, the term ‘victim’ also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation. in light of the above instruments, there are several types of victims, namely victims of crimes, victims of abuse of power, victims of gross violations of international human rights standards and victims of serious breaches of international humanitarian law. this group includes the characteristics of the term ‘victim’, that is, persons who directly or indirectly (family members or people who have suffered harm when helping a victim) have faced an unlawful act (offence, crime, violation of an international obligation) either individually or collectively by the action or omission of states; or of an individual or groups of individuals. this definition cannot be interpreted to include legal persons in any manner or at any time (burgorgue-larsen, 2003, p. 14). ii. victims’ rights within the universal system the four universal instruments mentioned in the previous section list a catalogue of rights held by the victims, which include: testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 49 a) right of access to justice and fair treatment (including the right to recourse to expeditious and effective judicial process). victims’ right of access to administrative and other bodies, as well as to mechanisms, measures and procedures used in accordance with domestic law. b) the right to know the truth about the circumstances of enforced disappearance and the fate of the disappeared person, as well as respect for the right to freedom to seek, receive and disseminate information to this end. c) the right to create and freely participate in organisations and associations with the purpose of helping to establish the circumstances of forced disappearances and the fate of disappeared persons. d) the right of victims of enforced disappearance to assistance. e) the right to prompt, fair and effective remedies, including reparation. the right to reparation is closely related to the rights to justice and truth. these rights have generated a growing debate in the international community, which has led to the production of soft law instruments. these complement the regulations derived from hard law, since they propose guidelines and offer a range of measures to manage these rights. in addition to the four instruments mentioned above, there is another important document relating to the rights of the victims, namely, the updated set of principles for the protection and promotion of human rights through action to combat impunity, approved by the commission on human rights in february 2005.6 this instrument, together with the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (the basic principles and guidelines on the right of victims of violations), contribute to the implementation of measures of truth, justice and reparation in contexts where serious human rights violations are widespread. in this way, they supplement those binding instruments from which obligations for the state are derived. they also provide different modes of jurisprudence. the updated set of principles for the protection and promotion of human rights through action to combat impunity is the 'most up-to-date and specific international human rights law instrument that recognises the rights of victims to the truth, and to access to justice and reparation' (beristain, c. and gonzález e., 2012, p. 253). the basic principles and guidelines on the right of victims of violations indicate that when states’ actions or omissions generate violations of human rights and international humanitarian law, states are obliged to investigate, prosecute and punish those responsible for the violations, and to generating the right to reparation for the victims. point 15 of this document establishes the following: 6 economic and social council. updated set of principles for the protection and promotion of human rights through the fight against impunity. e/cn.4/2005/102/add.1. 8 february 2005. eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 50 adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. reparation should be proportional to the gravity of the violations and the harm suffered. the document establishes five dimensions of reparation, which have been enacted through jurisprudence, listed in paragraphs 19-23 of the basic principles and guidelines on the right of victims of violations:  restitution involves restoring the victim to the original situation before the violations of international human rights law or serious violations of international humanitarian law occurred. for instance, the restoration of liberty, enjoyment of human rights, identity, family life and citizenship, the return to one’s place of residence, restoration of employment and return of property.  compensation refers to the monetary compensation that should be appropriate and proportional to the seriousness of the violation and the circumstances of each case. the following needs to be taken into account: physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services.  rehabilitation includes medical and psychological care, as well as legal and social services.  satisfaction refers to effective measures aimed at the cessation of continuing violations; the verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; the search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; public apology, including acknowledgement of the facts and acceptance of responsibility; and judicial and administrative sanctions against persons liable for the violations, among others.  the guarantees of non-repetition include: ensuring the effective civilian control of military and security forces; the guarantee that all civil and military proceedings abide by international standards of due process, fairness and impartiality; the strengthening of the independence of the judiciary; the protection of the persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; the promotion of the observance of codes of conduct and ethical standards, in particular international standards, by public officials, among others. testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 51 the effectiveness of these measures will be as much in their coherence as in their internal integrity. none of them substitutes another; they are all interrelated and must be integral to the whole. the international center for transitional justice mentions both internal integrity (coherence between the requirements and the ways of carrying out reparations) and external integrity, (relationship between the measures and the justice policies and institutional or criminal reforms).7 in this sense, the measures must be a set of actions designed to mitigate the damage caused to victims of human rights violations and to restore their rights. the coherence and integrity of the measures must be reflected in a public policy aimed at changing the political and social situation in which the violation of human rights was committed. the measures must have legitimacy vis-à-vis the victims in order to be satisfactory and effective. this requires the victims’ participation in the entire process. as the interamerican commission pointed out: ... the participation of the victims in the different procedural stages constitutes a guarantee of the right to truth and justice, and is part of the complex structure of checks and balances of the criminal process, and fosters the citizen's control of the acts of the state (inter-american court of human rights commission, 2009, para. 67). the visibility of the victims in the different instruments has resulted in a shift from victims being passive and marginalised in regard to the process of investigating the criminal act to them becoming active subjects. some authors have noted that the participation of the victims ‘illuminates the guilt and facilitates a fair trial’ (abreu, 2017, p. 101). this is important, especially because in the case of serious crimes (such as forced disappearance, torture, kidnapping), it is not only the persons who suffer these violations that have their life disrupted; a state’s democratic principles and the rule of law also become strongly disturbed. the two previous sections have outlined who the victims are, as well as their rights. the following section contains an explanation of why it is important to take into account the participation of the victims through their testimonies. they not only contribute to the ethical-political legitimacy of the investigation, but also to the establishment of standards and their effective implementation, as well as to the formulation, application and effectiveness of public policies on human rights. testimonies are important as they are a direct source of information on social facts that can complement the information obtained through secondary and tertiary sources. in addition, they confer a central role to those persons or groups who have had their rights violated, turning them into active subjects in the development, implementation and evaluation of public policies related to the rights of justice, truth and reparation. 7 for more information, see: international center of transitional justice-aprodeh (2002). parámetros para el diseño de un programa de reparaciones en el perú. lima: ictj, eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 52 iii. generation of data and information based on the victims' testimonies ever since the 1980s, the testimonies of victims of serious violations of human rights, infractions of international humanitarian law, and crimes against humanity have played an increasingly major part in generating data and collecting information. they have been used as primary sources in the truth commissions that have been implemented in the last forty years. for instance, five thousand one hundred eighty testimonies were collected in guatemala's remhi project, which were included in the guatemala nunca más report (1995-1998). another example was the peru’s truth and reconciliation commission, which collected nearly seventeen thousand testimonies about the violence, including harrowing stories of massacres, disappearances, torture, and sexual abuse. ...a detailed and accurate record of the acts of violence, the conditions in which they occurred, the actors directly involved and the consequences of those acts... (cvr, 2003, pp. 32-33). in accordance with the guide for human rights indicators for measurement and application, prepared in 2012 by the office of the united nations high commissioner for human rights, testimonies (one of the sources and mechanisms for generating data) are used in states parties' reports as an indicator to assess international human rights monitoring mechanisms such as united nations treaty bodies, the reports by special rapporteurs, the universal periodic review by the human rights council, and in the recommendations of its bodies to states. for instance, special rapporteurs carry out country visits to assess the situation of human rights at the national level. during such missions, the experts assess the general human rights situation in a given country and they meet with national and local authorities, with members of non-governmental organizations, civil society organizations and victims of human rights violations. one of their principal activities is to get direct information from victims of human rights violations (testimonies). country visits’ findings, conclusions and recommendations by special procedures are published in mission reports to the human rights council. in august 2016, a rapport was published jointly by united nations assistance mission for iraq (unami) and ohchr under their respective mandates. the information contained in this report is based on accounts obtained directly from survivors and witnesses of abuses of international human rights law and/or serious violations of international humanitarian law gathered by unami human rights investigators since the attack on sinjar in august 2014.8 the demand for (quantitative and qualitative) indicators is present in the normative framework of human rights. for instance, quantitative indicators are mentioned in some of the treaties; in the international covenant on economic, social and cultural rights (article 16); in the international covenant on civil and political rights (article 40); and in the convention on the rights of persons with disabilities (article 31): 8 https://www.ohchr.org/documents/countries/iq/unamireport12aug2016 en.pdf. https://www.ohchr.org/documents/countries/iq/unamireport12aug2016 testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 53 states parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present convention. the process of collecting and maintaining this information shall comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics. the use of quantitative or qualitative indicators based on facts or judgments in human rights evaluations provides complementary and mutually supportive options. these indicators are instruments for obtaining an approximate idea of the actual circumstances; their level of accuracy is optimal provided that there is a high standard both in terms of the information and the methodologies used to collect, systematise and analyse this information. it is important to encourage the use of factual and quantitative indicators to better inform these assessments (ohchr, 2012, p. 28). these indicators include events-based data as one of the four categories of the data generation mechanism (see figure 1). in view of this, the ohchr points out two considerations. on the one hand, the sources and identified data-generating mechanisms should be suitable for assessing the compliance of state parties with international human rights treaties. as a result, the focus should be on indicators that are fact-based or use objective methods of data collection and presentation. and on the other hand, they should combine different sources and data-generating mechanisms to encourage a more comprehensive and credible assessment of any human rights situation (ohchr, 2012, p. 51). figure 1 source: ohchr, 2012, p. 52. events-based data socio-economic and administrative statistics expert judgments perception and opinion surveys sources and data-generating mechanisms 1 2 3 4 administrative data statistics surveys census eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 54 events-based data refer to qualitative or quantitative data that can be linked to events characterised by human rights violations and infractions of international humanitarian law or crimes against humanity. the information collected describes acts and identifies the victims and the perpetrators. according to the ohchr, events-based data are obtained from testimonies of victims or witnesses; information provided by the media and reports of states, civil society organisations, national human rights institutions, and international human rights monitoring mechanisms. however, due to the importance and participation of the victims in the investigation processes through non-governmental organisations, organisations created by them and academic research, their testimonies have started to have a place in the sources and data-generating mechanisms. this section will only take into account the collection of data from testimonies in order to maintain the focus of the article (victims’ testimonies as primary sources), without underestimating the importance of the other elements. 3.1. events-based data: collection of testimonies collecting testimonies is an area of fieldwork that uses methodology from the social sciences, applying semi-structured in-depth interviews to individuals or using focus groups. it is not the aim of this section to provide detailed information on how to carry out these activities, as there is substantial literature on the subject.9 however, it is interesting to mention some aspects that should be basic requirements for the collection of this kind of data that can be conducive to the search for justice, truth and reparation. aspects identified by specialists during the last two decades include: (a) the central role of the victims. the fundamental element in investigations on human rights violations is that the victims are at the heart of the process through their testimonies. this involves learning to listen and take into account their experiences, information and expectations in the investigation process; facilitating spaces for effective dialogue; maintaining consistent behaviour; and establishing satisfactory communication and support mechanisms (beristain, et al, 2018). this perspective is what is known as the psychosocial approach. an approach that focuses on understanding the impacts of violations at the personal, family or collective level, considering the victims’ ways of coping or resistance, as well as their perceptions, expectations and claims regarding the facts, in contrast with those of perpetrators and of the state. ... the status of victim requires providing a place, a space and a time for victims to speak for themselves; it means having them narrate their stories over and over again, in an attempt to investigate the meaning of their 9 bryman, a. (2016). social research methods, 5th ed. oxford: oxford university press. della porta d. and keating, m. (eds.) (2008) approaches and methodologies in social sciences: a pluralist approach. cambridge: cambridge university press. kvale, s. and brinkmann, s. (2009) interviews: learning the craft of qualitative research interviewing, 2nd ed. london: sage publications. testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 55 experience and follow it through to its conclusion, thus learning to look at the world from the perspective of the one’s solitude self ... the mystery hidden behind the victim's testimony (bárcena and mélich, 2003, pp. 198-203). (b) visits to the sites or places where the victims are located. during the fieldwork, it is necessary to visit the places where the victims and witnesses are. different activities may be undertaken: having individual interviews with other people (witnesses), working with focus groups to reconstruct the events, and meeting family members, among others. sometimes it is necessary to re-interview and check data and local or regional information that can only be obtained first-hand (beristain et al, 2018), as well as understanding the social, political and cultural context in which violations of human rights were carried out. (c) information regarding human right violations. each statement must include the account that provides information regarding the violation of human rights in question: what happened, when and where? who were the perpetrators? what effects did this have on their life (physical, psychological, economic, and social, etc.)? how did the victim deal with that situation? why did it happen, or how can it be accounted for? what should be done to avoid this situation and whose responsibility is it? according to rodríguez maeso, this involves the interrelation and complementary nature of legal truth and historical truth and, therefore, of legal knowledge and socio-historical knowledge (rodríguez maeso, 2011). in other words, it is a construction of the facts relying on different of social science disciplines, including history and law. (d) empowerment of people during the research process. during the process of generating data and information, and during the entire stage of action research, one of the cross-cutting objectives must be to empower the people (victims, defenders, etc.), who participate in the project or study (beltrán, 2015, p. 8). in this way, a voice is given to people who may never have had the opportunity to talk about these facts in a process which involves seeking truth, justice and reparation. (e) network construction. it is advisable to work in partnership with local organisations and other actors involved in the subject under investigation. during the process, strategies must be designed to share knowledge, techniques and abilities regarding awareness of international human rights norms, research capabilities, skills to engage in interaction with other (state and non-state) actors, and mobilisation of media or society. in other words, networking strategies. research is a continuous process of seeking changes in the lives of people whose rights are at risk in support of the whole society (beltrán, 2015, p. 8). (f) multidisciplinary analysis. the information that comes from testimonies is systematically recorded, by using definitions and common classifications based on the normative human rights framework that allow the pertinent data to be compiled and consolidated. quantitative data needs to be obtained in connection with the number of victims, their age, their sex, their profession; qualitative data must also eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 56 be collected concerning the socio-political context (local, regional or national), and the physical, psychological or social consequences for those who suffered violations (from a gender perspective), as well as types of categories of human rights crimes or violations. these include arbitrary execution, arbitrary detention, forced disappearance, forced displacement, torture, robbery, etc. (ohchr, 2012, p. 14). the professionals from each of the specialties reconstruct and interpret the facts from the point of view of the different disciplines within the social sciences: anthropology, sociology, geography, history, law, political science, economics, communication, pedagogy and psychology; and even medicine. however, at this point there is a discussion between jurists and professionals of other disciplines: the former argue that the analysis is and should be constrained to the legal field. this is because human rights have been developed and recognised by international law, which in turn has illuminated the internal legal system of states.10 in all these cases, the cvr resorted to experts at the cutting edge of scientific and technical methods in order to ensure as much objectivity as possible: criminological reports, judicial expertise, forensic anthropology, laboratory analysis, etc. (cvr, 2003, p. 33). the objective of research on human rights violations should be twofold: on the one hand, to contribute to the implementation of effective policies on truth, justice and reparation that effectively ensure the recovery of the victim and, where possible, restore the victim to their previous situation; and, on the other hand, to contribute to the transformation of political systems that allow such actions or omissions. this is done by using tools from the social sciences because this science has a long tradition in analysis the conditions under human beings live. since the late nineties, the social sciences has addressed human rights and has generated knowledge about the human condition relevant to rights-based research, while at the same time has made progress in developing methods that are applicable in the field of human rights. moreover, the social sciences have problematized human rights in ways that have challenged the predominance of law and opened up new avenues of inquiry that provide greater insight into the fundamental challenges that need to be overcome for a truly global implementation of human rights norms (landman, 2010, p. 19). this last argument explains next figure. 10 for more information on this debate, see: wilson, r. a. (1997) ‘representing human rights violations: social contexts and subjectivities’ in wilson. r. (ed.), human rights, culture and context. anthropological perspectives. london: pluto press, p. 134-160. ross, f. c. (2003) ‘using rights to measure wrongs. a case study of method and moral in the work of the south african truth commission’ in wilson, r. a. and mitchell, j. p. human rights in global perspective. anthropological studies of rights, claims and entitlements. london: routledge (asa monographs, v. 40), p. 163-182. hastrup, k. (2003) ‘representing the common good. the limits of legal language’ in wilson r.a. and mitchell, j.p. human rights in global perspective. anthropological studies of rights, claims and entitlements. london: routledge, pp. 16-32. testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 57 figure 2 the importance of the victims' testimonies for victims and their families documenting the case / institutions / society compiling their experiences. incorporating the impacts on and consequences for, the victims. empowering and maintain their dignity. recognising them as victims and acknowledging their rights. providing a social framework for recognising their experience. generating empathy for the victims' experience. validating their experience as a source of information in investigations. preparing recommendations on the right to truth, justice and reparation that contribute to the implementation of appropriate public policies. sources: beristain et al., 2018, p. 20; ohchr, 2012. this subject area, which seeks to be multidisciplinary, has some critical currents, like any research methodology. for example, ball and spirer reported repeated criticism of the collection of data and information by way of testimonies from victims of human rights violations (ball and spirer, 2000, pp.1-2): (a) the structuring of data on human rights is a complex process, and countless errors may be made in the data that yield statistics that can distort the truth. in addition to the usual errors that affect statistical work (reliability of data processors and researchers, interview bias, numerical and typographical errors, etc.), the atrocious errors result from oversimplification. for example, when a person suffers multiple violations in a given event, but only the most serious one is reported, in order to avoid simplification and find a balanced view, there should be an open debate among the different specialists in the team, and close attention needs to be paid to the preparation of the database. (b) the persons chosen to be interviewed are not representative of the group of victims. therefore, the data can be biased, reflecting only the knowledge of the people interviewed. in this context, 'bias' means a distortion of historical reality. (c) the systematisation of the data and information collected from testimonies is not an easy task, especially if such information is intended to be analysed and studied by various specialties of the social or medical sciences. the complexity of the information management system and, in particular, of the database, reflects the complexity of the narratives and of the legal and scientific concepts necessary to serve the cause of truth (ball and spirer, 2000, p. 2). to achieve accuracy and consistency, the information management system should standardise the classification and categorisation of information. for instance, it should standardise the existing definitions of torture, eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 58 enforced disappearance, etc. as established in international instruments, or establish criteria on how to detail places, facts, etc. a careful and accurate classification is necessary to ensure that high-quality data is obtained. the whole system must have a high standard to be credible and valid. (d) a similarly important issue is the collection, processing and dissemination of any statistical information, as it has repercussions on the right to information, the right to privacy, and the protection and confidentiality of data, which requires compliance with the legal and institutional norms related to ethics, statistics and human rights. this problem has sometimes been resolved by sending the data to a different state from that where the research was carried out and in human rights research centres. the ohchr has suggested adopting or applying ethical safeguards such as the fundamental principles of official statistics and the declaration of professional ethics of the international statistical institute, with a view to creating an institutional framework to help prevent the misuse of data in the future. conclusions 1. the united nations is paid little attention to victims and, in general, to their situation in the face of human rights violations. however, as a result of serious armed conflicts, many of them ethnic, as well as wars of independence, dictatorships, etc. in the mid-twentieth century, the international community became more interested in the victims’ situation and began the production of international instruments such as: (a) the declaration of basic principles of justice for victims of crime and abuse of power; (b) the declaration on the protection of all persons from enforced disappearance; (c) the international convention for the protection of all persons from enforced disappearance; and d) the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law. the objectives of these mechanisms are, on the one hand, to provide elements to define who the victims of violations of human rights and humanitarian law are and, on the other, to establish a catalogue of victims’ rights, namely the right to access to justice and fair treatment, the right to know the truth, the right to create and freely participate in organisations and associations to help them restore the situation in which they were living before suffering the violations, and the right to reparation and remedies, in an expeditious, fair and effective manner. 2. the production of international instruments related to victims and their rights, the emergence of victimology, and the demands of victims on questions of justice, truth, compensation and reparation for victims, due to the psychological, physical, social, and political consequences (among others) faced by them have caused victims to be taken into account through their testimonies. these have been considered as one of the sources of data and information generation, especially by the truth commissions that emerged in the 1980s and, gradually, have been included in the reports of the different united nations agencies. testimonies of victims of human rights violations as primary sources in the reports by united nations bodies the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 59 3. in the document human rights indicators: a guide to measurement and implementation, by the office of the united nations high commissioner for human rights, victims’ testimonies were identified as one of the data sources and generation mechanisms, and as one of the indicators to measure the application of and compliance with human rights, among them, the rights to justice, truth and reparation. thus, testimonies are used as part of the indicators in states parties' reports to international human rights monitoring mechanisms such as united nations treaty agencies, the reports of special rapporteurs, the periodic universal review carried out by the human rights council; and the recommendations to the states parties for preparing reports by the working groups of its different bodies. 4. the compilation of testimonies is an area of fieldwork that employs methodology from the social sciences, applying semi-structured in-depth interviews to individuals or using focus groups. over the last two decades, various specialists in the subject have noted various aspects for improving the results achieved by this methodology, notably including: (a) the importance of placing the victims at the heart of the investigations or processes in the search for the truth; (b) visits to the sites where the events took place; (c) obtaining information related to the violation of human rights that answers the following questions: what happened, when and where? who were responsible? what effects did this have on your life? physical, psychological, economic, social, etc. how did you deal with that situation? why did it happen? how can it be accounted for? what should be done to avoid this situation and whose responsibility is it to ensure this? (d) empowerment of the victims during the investigation process; (e) networking and, (f) multidisciplinary analysis of the data and information collected. however, this methodology has received considerable criticism, including the following points: (a) the structuring of data on human rights is a complex process and there are countless possible errors in the data that yield statistics that can distort the truth; (b) the persons chosen to be interviewed are not representative of the group of victims; (c) the systematisation of the data and information gathered from testimonies is not an easy task, especially if such information is intended to be analysed and studied by various disciplines of the social sciences or medical sciences; and, (d) the collection, treatment and dissemination of any statistical information has repercussions on the right to information, the right to privacy, and the protection and confidentiality of data, which requires compliance with legal and institutional norms related to ethics, statistics and human rights. eloísa gonzález hidalgo the age of human rights journal, 13 (december 2019) pp. 44-62 issn: 2340-9592 doi: 10.17561/tahrj.n13.3 60 references abreu and abreu, j. c. 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united nations general assembly international convention for the protection of all persons against enforced disappearances. resolution 47/133, 20 december 2006 [online]. available at: https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx (accessed: 30 may 2019). united nations general assembly international covenant on civil and political rights. resolution 2200a (xxi), 16 december 1966 [online]. available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (accessed: 30 may 2019). united nations general assembly international covenant on economic, social and cultural rights. resolution 2200a (xxi), 16 december 1966 [online]. available at: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx (accessed: 30 may 2019). received: june 20th 2019 accepted: october 4th 2019 https://doi.org/10.4324/9781315672632 https://www.ohchr.org/documents/hrbodies/crpd/a.68.55-eng.doc https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.29_declaration%20victims%20crime%20and%20abuse%20of%20power.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.29_declaration%20victims%20crime%20and%20abuse%20of%20power.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.29_declaration%20victims%20crime%20and%20abuse%20of%20power.pdf https://www.ohchr.org/en/professionalinterest/pages/enforceddisappearance.aspx https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 311 right to freedom of expression v. reputation protection (based on ecthr practice materials) tetiana m. alforova1 mariia m. koba2 oksana v. lehka3 andrii m. kuchuk4 abstract: the urgency of the study is stipulated by the necessity to clarify the criteria allowing courts to determine a balance between the right to freedom of expression and the right to reputation protection as part of the right to privacy. the purpose of the article is to elucidate, through the european court of human rights practice, the provisions allowing defamation cases to be resolved and additional criteria that can be used to consider such cases to be formed. the article clarifies that the criteria for finding a balance between the right to freedom of expression and reputation protection are the following: the content of the publication; degree of public interest in disseminated information, the behavior of the interested party to the publication; as additional criteria for determining the balance, it is suggested to use the purpose of the publication, as well as the results of linguistic examination. keywords: echr, ecthr practice, freedom of expression, reputation protection, right to privacy. summary: 1. introduction. 2. the right to freedom of expression content and law aspect of business reputation protection. 3. the human right to defend the reputation as part of the right to respect the private life. 4. positive obligations of the state to protect the right to privacy. 5. criteria for restricting the right to freedom of expression in the context of reputation protection. 6. conclusions and recommendations. 1. introduction freedom of speech is a crucial component of a democratic system, without which democracy is hardly possible in general. from the second half of the twentieth century, when the international system of human rights protection was formed, the right to freedom of speech was enshrined in all international acts related to the field of human rights. these are the universal declaration of human rights (united nations, 1948), the convention for the protection of human rights and fundamental freedoms (council of europe, 1950), and the international covenant on civil and political rights (united nations, 1966). in international law, freedom of expression of thoughts and ideas is considered important 1 phd in law, associate professor, dean of the faculty of law and psychology, private institution of higher education “dnipro humanitarian university”, ukraine (alforova8110@neu.com.de) 2 senior lecturer at the department of legal support of the service and combat activity, kyiv faculty of the national academy of the national guard of ukraine, ukraine (koba8110@edu-knu.com) 3 full doctor in legal science, full professor, professor of the department of international law, university of customs and finance, ukraine (lehka8110@sci-univ.com) 4 full doctor in legal science, full professor, professor of the department of law and jurisprudence teaching methodology, sumy state pedagogical university named after a.s. makarenko, ukraine (kuchuk8110@edu.cn.ua) mailto:alforova8110@neu.com.de mailto:koba8110@edu-knu.com mailto:lehka8110@sci-univ.com mailto:kuchuk8110@edu.cn.ua right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 312 both at the individual level, as it contributes to the full development of a person and at the global one it is the foundation of a democratic society (howie, 2018). according to a. bhagwat and j. weinstein (2021), freedom of political expression is a indispensable component to democracy performing informational and legitimizing functions. however, it is clear that freedom of speech cannot be unlimited. thus, for example, the ability of people to criticize public authorities, some of their actions is a part of the democratic process however, authority is empovered to limit the possibility of free speech. for example, democratic governments have restricted freedom of speech in the case of hate speech (weinstein & hare, 2009; reid, 2020). the principle of scientific knowledge objectivity necessitates the essentiality to note the desire of some scientists to draw attention to both the positive aspects of the hate speech prohibition and the manifestation of human personality through this phenomenon (asogwa & onwuama, 2021), the necessity to divide the discussion on the hate speech prohibition into separate analytical stages determining whether this phenomenon is part of the realm of law and the moral aspect of freedom of expression (howard, 2019), the principle of proportionality as a criterion for verifying the legitimacy of restrictions on freedom of expression is criticized and a justifiable approach is suggested as a criterion (gunatilleke, 2021). we would like to add that the issue of the correlation between the right to freedom of expression and the necessity to protect business reputation is the least covered in the legal literature. at the same time, there is a well-established approach that provides for the possibility of restricting freedom of expression in legal practice and, in particular, in the european court of human rights practice today. the right to freedom of expression is relative, and not absolute. the ecthr decisions’ analysis shows that the most ambiguous are the judgments of this court in cases concerning freedom of expression. decisions are not taken unanimously and quite often such judgements are accompanied by dissenting opinions of judges of the ecthr. we should agree with d. voorhoof and h. cannie (2010) on the authority of the ecthr practice under art. 10 of the echr as an international standard for the protection of freedom of expression, however, certain trends in this court’s activity raise serious concerns about the future level of this right protection. the abovementioned allows us to put forward a position being the hypothesis of our study: the criteria of determination of the legitimacy of restrictions on the right to freedom of expression and proportionality with other rights formulated by the ecthr require additional separation of criteria. thus, the purpose of our study is to analyze the ecthr practice under art. 10 of the echr to clarify the court’s established approach to determining the correlation between the right to freedom of expression and the business reputation protection (susi, 2019). it should be noted that today there are no comprehensive studies on this issue. therefore, in this paper we present the results of our perception of the subject of knowledge through the prism of the ecthr practice determining mainly the descriptive nature of the article. however, it should be emphasized that this is due to the need to clarify the criteria identified by the court for finding the balance. and on this basis, we have identified two additional criteria, the use of which will allow making tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 313 a fair decision in the case, which will not be accompanied by a significant number of dissenting opinions. this goal determines the methodology of this study: first, we will clarify the content of the right to freedom of expression and outline law aspect of the business reputation protection. then we will analyze some decisions of the ecthr under art. 10 of the echr. after that, we will formulate criteria allowing to make more unambiguous decisions when finding a balance between the right to freedom of expression and reputation protection. the study is based on the perception of human rights as natural, inalienable and equal human opportunities that are universal in nature but may have a regional content (which is why the ecthr analyzes national legislation, international instruments, finds out the presence or absence of consensus at european level to solve the issue and takes this analysis into account when making a decision). which allows us to talk about the social and cultural nature of law in general. the study takes into account the implicit nature of the echr provisions, which enshrine the relevant human rights, respectively, it is through the decision of the ecthr there is “filling with the content” of these rights. this takes into account the principle of dynamic interpretation of the convention’s norms by the court, which ensures the effectiveness of human rights institutions and modern understanding of the protected rights content. thus, given the quarantine restrictions in a number of states around the world, in particular, the prohibition of mass gatherings and the necessity to maintain distance between people, pickets have become the only available form of public expression of one’s opinion. at the same time, as p. malkova and o. kudinova (2020) emphasize, the question arises: what if citizens use a single picket as an opportunity to unite (for example, standing at a certain distance from each other, forming a ‘group one-person picket’), should this be seen as freedom of expression or as freedom of peaceful assembly? the ecthr judgments were studied using the hermeneutic method and the method of content analysis, which allowed to take into account the social and cultural context of the cases under consideration, as well as to draw a line from the legal regulation of the right to freedom of expression at the national level and at the level of the states-parties to the echr. it should be noted that the analysis of the ecthr practice provides information on the state and trends of public relations legal regulation at the level of 47 member states of the council of europe (based on the principle of compliance with the provisions reflected in the fixed practice by the ecthr). in the course of the study 75 decisions of the ecthr in cases under art. 8, 9 and 11 of the echr (25 decisions under each article) and 50 decisions under art. 10 of the convention were analyzed. using logical methods, provisions concerning additional criterion for finding a balance between freedom of expression and reputation protection were formulated. logical methods allowed clarifying the correlation between freedom of expression and other human rights, in particular the right to freedom of peaceful assembly and the right to freedom of thought, conscience and religion (it is especially crucial to understand this connection within the information society) (cameran, 2020). as well as under conditions of quarantine restrictions (malkova & kudinova, 2020). right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 314 2. the right to freedom of expression content and law aspect of business reputation protection when considering cases of reputation protection, the ecthr checks the balance between the rights enshrined in art. 10 and art. 8 of the echr. freedom of expression, as well as the right to privacy, are the foundations of a democratic society. these rights deserve equal respect. acceptable criticism is a crucial component of democracy. criticism that does not aim to humiliate a person and is based on factual grounds is acceptable. the right to reputation protection is asserted as a comonent of the right to privacy. however, in order to apply art. 8 of the convention, an attack on reputation must reach a certain level of gravity in order to affect a person’s personal or psychological integrity and limit the right to respect for private life. the criteria for finding a balance between the right to freedom of expression and the reputation protection are the following: the content of the publication (it is necessary to clearly distinguish between statements of fact and value judgments. the concept of responsible journalism, which includes the following provisions: the obligation of journalists to inform about issues of public interest requires them to: a) act in good faith; b) act on an accurate factual basis (it is important how reasonably they can consider their sources to be reliable); c) provide “reliable and precise” information; d) act in accordance with journalistic ethics; e) rely on an acceptable assessment of the relevant facts has been formed within this criterion. it is important to determine the degree of public interest in the information disseminated. if the information disseminated relates to a topic of public interest, states have a limited scope. if the published information about a person is of great interest to society, then the restriction of the right to privacy of such a person is justified and the balance of rights in such cases is shifted towards freedom of expression. the degree of publicity of the person concerned is used as a criterion for finding a balance between the reputation protection and freedom of expression. the sphere of privacy of public figures is much smaller than that of private individuals, so in public affairs the balance of rights is shifted towards freedom of expression.the form and consequences of publication, the method of obtaining information, and the behavior of the interested party to the publication are used as the criteria for determining the balance in some cases. a clear understanding of the nature and content of the right to freedom of expression and the right to reputation protection is a prerequisite for the sound balance between these rights. it should be noted that in the ecthr practice in cases on the issues mentioned by us, the statements concern violations of either art. 10 of the echr (if the applicant considers that his right to freedom of expression has been violated), or under art. 8 of the convention (if a person considers that his right to privacy has been violated, in particular in the context of reputation protection; the person considers that he has been defamed). it should be emphasized at once that the ecthr did not consider the right to reputation tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 315 protection as a separate right for a long time, reputation protection was considered only as a legitimate purpose of restricting other rights. both the analysis of the court’s practice and the architectonics of the echr point to the correctness of this conclusion. thus, the abovementioned art. 8 of this convention (1950) contains a provision that corresponds to art. 12 of the universal declaration of human rights (1948), which provides for the human right to protection from interference or encroachment on privacy and family life, inviolability of home, secrecy of correspondence, honor and reputation. although, as we see, the fathers of the echr deliberately excluded the reputation protection out of the art. 8. at the same time, the reputation protection and prevention of confidential information disclosure is enshrined in art. 10 of the convention only as a basis for restriction on the right to freedom of expression. both the right to privacy and the right to freedom of expression are values of a democratic society, without which democracy is hardly possible. “reputation is an inherently social and relational concept that serves a significant signaling function in society” (cheung & schulz, 2018). studying the peculiarities of the exercise of the right to reputation protection by the police, the team of authors notes that the reputation is manifested in public relations. in this area, the possibilities of reputation protection are limited by the necessity to ensure freedom of speech, and by the constitutional right to appeal to public authorities. freedom of speech in these cases possesses priority provided it is used in good faith (barbin et al., 2019). in the case of “dyuldin and kislov v. russia ”(application no. 25968/02), the ecthr has once again emphasized that freedom of expression is one of the most crucial foundations of a democratic society and one of the basic conditions for its progress. at the same time, it concerns not only “information” or “ideas” that are accepted positively or considered non-offensive or not of interest, but also to those that offend, shock or disturb. these are the demands of pluralism, tolerance and freedom of opinion, without which there is no “democratic society”1. it is these rights that under conditions of the information society are most affected. although online publications are considered by courts as traditional publications in a number of cases, the question of who should be responsible for digital forms of defamation is controversial. it is time to think differently about defamation and consider its correlation to privacy and data protection (joyce, 2017). the ecthr has emphasized that guarantees given to the press are of particular importance, as it is obliged to impart information and ideas of public interest. in turn, the public has the right to receive such information and ideas “were it otherwise, the press would be unable to play its vital role of “public watchdog”’2. in jersild v denmark (application no. 15890/89) the court noted that although the above applies primarily to printed media, these principles also apply to audiovisual media. herewith audiovisual 1 ecthr. (2007). case of dyuldin and kislov v. russia (application no. 25968/02). retrieved from http:// hudoc.echr.coe.int/eng?i=001-82038 2 ecthr. (1994). case of jersild v denmark (application no. 15890/89). retrieved from http://hudoc.echr. coe.int/eng?i=001-57891 http://hudoc.echr.coe.int/eng?i=001-82038 http://hudoc.echr.coe.int/eng?i=001-82038 http://hudoc.echr.coe.int/eng?i=001-57891 http://hudoc.echr.coe.int/eng?i=001-57891 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 316 media often have a much more direct and powerful effect than print media3. in “handyside v the uk “(application no. 5493/72), the ecthr noted the link between the right to freedom of expression and the responsibility of the individual: “from another standpoint, whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses”4. 3. the human right to defend the reputation as part of the right to respect the private life back in 2000, the ecthr did not consider the right to the reputation protection as such that is protected by the echr, in particular, in the context of the right to privacy. thus, in marlow v the uk (application no. 42015/98) the applicant complained, inter alia, of a violation of art. 8 of the convention by the state, as the decisions of the domestic courts contained derogatory statements. however, it was decided in this part that the complaint was incompatible ratione materiae with the provisions of the convention, given that “the applicant’s complaint relates to a perceived affront to his dignity and reputation caused by statements made by the trial judge when handing down the sentence and by the court of appeal when upholding that sentence. this is not a matter which falls within the protection guaranteed by article 8 of the convention”5. however, already in 2004 in the case of chauvy and others v. france (application no. 64915/01) the ecthr has changed the established practice, noting that freedom of expression may conflict with the right of a person to defend his or her reputation, as enshrined in art. 8 of the convention (in the circumstances of the case it was a publication that affected the applicant’s reputation). therefore, it is important to find a balance between the rights enshrined in art. 8 and in art. 10 of the echr6. in the case of abeberry v. and leempoel & sa ed. ciné revue v. belgium (application no. 64772/01) the ecthr has indicated its duty to verify whether the national authorities have reached a fair balance between the protection of freedom of expression enshrined in article 10, on the one hand, and the right to a reputation of the accused as an element of privacy and protected by article 8 of the convention, on the other hand7. in the case of white v. sweden (application no. № 42435/02) the court also examined the issue whether the right to privacy had been violated by the exercise of the right to freedom of expression because of the publication of statements and photographs. having established that the national courts have balanced conflicting interests, they have correctly determined 3 ecthr. (1994). case of jersild v denmark (application no. 15890/89). retrieved from http://hudoc.echr. coe.int/eng?i=001-57891 4 ecthr. (1976). case of handyside v the uk (application no. 5493/72). retrieved from http://hudoc.echr. coe.int/eng?i=001-57499 5 ecthr. (2000). case of marlow v the uk (application no. 42015/98). retrieved from http://hudoc.echr. coe.int/eng?i=001-22833 6 ecthr. (2004). case of chauvy and others v. france (application no. 64915/01). retrieved from http:// hudoc.echr.coe.int/eng?i=001-61861 7 ecthr. (2006). case of abeberry v. та leempoel & sa ed. ciné revue v. belgium (application no. 64772/01). retrieved from http://hudoc.echr.coe.int/eng?i=001-7792 http://hudoc.echr.coe.int/eng?i=001-57891 http://hudoc.echr.coe.int/eng?i=001-57891 http://hudoc.echr.coe.int/eng?i=001-57499 http://hudoc.echr.coe.int/eng?i=001-57499 http://hudoc.echr.coe.int/eng?i=001-22833 http://hudoc.echr.coe.int/eng?i=001-22833 http://hudoc.echr.coe.int/eng?i=001-61861 http://hudoc.echr.coe.int/eng?i=001-61861 http://hudoc.echr.coe.int/eng?i=001-7792 tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 317 that the public interest in the publication of the information in question outweighs the applicant’s right to protection of his reputation8. in 2007, in the case of pfeifer v. austria (application no. 12556/03) the ecthr states that a person’s right to protection of his or her reputation is covered by article 8 as part of the right to respect for private life is recognized in court’s practice9. the european court’s of human rights clear conclusion is in the case of karakó v. hungary (application no. 39311/05) on the correlation between reputation and the right to privacy enshrined in art. 8 of the convention: “personal integrity rights falling within the ambit of article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society perhaps rightly so but not one’s integrity, which remains inalienable”10. however, the ecthr refers reputation to the sphere of private life in most cases. thus, the analysis of the above cases shows that in general the ecthr takes the position that a person’s reputation (even when a person is criticized in public debate) is part of the individual, his psychological integrity, and therefore falls within his “private life” sphere. in addition, it should be noted that in the case of sanchez cardenas v. norway (application no. 12148/03) the court attributed honor to the sphere of private life11. similar provisions are set out in the case of petrina v. romania (application no. 78060/01). the ecthr has once again stated that it should determine whether the state has attained a fair balance in protecting the applicant’s right to a reputation, that is an integral part of the right to protection of privacy and freedom of expression, garanteed by article 10 of the convention, in the context of the positive obligations under article 8 of the convention12. in the case of a. v. norway (application no. 28070/06) the ecthr noted itself that in recent cases under art. 8 of the convention for the protection of human rights and fundamental freedoms, it recognized reputation and honor as components of private life. however, the court emphasized that in order for the case to be heard under art. 8 of the convention, encroachments on honor and reputation must reach a certain level of gravity, detrimenting the right to respect for private life13. moreover, it should be added that the reputation of the family falls into the sphere of a person’s private life in some cases. indicative in this context is the case of putistin v. ukraine (application no. 16882/03) in which the applicant complained of a violation of 8 ecthr. (2006). case of white v. sweden (application no. 42435/02). retrieved from http://hudoc.echr. coe.int/eng?i=001-76894 9 ecthr. (2007). case of pfeifer v. austria (application no. 12556/03). retrieved from http://hudoc.echr. coe.int/eng?i=001-83294 10 ecthr. (2009). case of karakó v. hungary (application no. 39311/05). retrieved from http://hudoc. echr.coe.int/fre?i=001-92500 11 ecthr. (2007). case of sanchez cardenas v. norway (application no. 12148/03). retrieved from http:// hudoc.echr.coe.int/eng?i=001-82560 12 ecthr. (2008). case of petrina v. romania (application no. 78060/01). retrieved from https:// strasbourgobservers.com/category/cases/petrina-v-romania/ 13 ecthr. (2009). case of a. v. norway (application no. 28070/06). retrieved from http://hudoc.echr.coe. int/eng?i=001-92137 http://hudoc.echr.coe.int/eng?i=001-76894 http://hudoc.echr.coe.int/eng?i=001-76894 http://hudoc.echr.coe.int/eng?i=001-83294 http://hudoc.echr.coe.int/eng?i=001-83294 http://hudoc.echr.coe.int/fre?i=001-92500 http://hudoc.echr.coe.int/fre?i=001-92500 http://hudoc.echr.coe.int/eng?i=001-82560 http://hudoc.echr.coe.int/eng?i=001-82560 https://strasbourgobservers.com/category/cases/petrina-v-romania https://strasbourgobservers.com/category/cases/petrina-v-romania http://hudoc.echr.coe.int/eng?i=001-92137 http://hudoc.echr.coe.int/eng?i=001-92137 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 318 the right to protection of his and his family’s reputation because of a newspaper publication containing a lie about his father and the refusal of the domestic courts to oblige the newspaper to correct defamatory information allowing to evaluate the actions of his father as cooperation with the gestapo. in the circumstances of the case, the applicant is the son of a “dynamo” football player, and the information relates to the events of 1942 related to the legendary “death match” between fc start and a team of pilots from the german luftwaffe, air defence soldiers and airport technicians. (“flakelf”). in the case, the court noted that “a person’s reputation forms part of his or her personal identity and psychological integrity and, therefore, also falls within the scope of his or her “private life”14. although in the case of dzhugashvili v. russia (application no. 41123/10) the court did not find a violation of art. 8 of the convention. the applicant, stalin’s grandson, complained that publications in the press concerning his grandfather, which referred to his grandfather as, inter alia, “a bloodthirsty cannibal” (publications concerning the discussion of the events in katyn and stalin’s role in them, as well as interpretations of the judgment) violate his right to privacy. the ecthr noted that the rights guaranteed by art. 8 of the convention cannot be transferred to others, so the court cannot consider the complaint to be in defence of the right to respect for iosyf stalin’s private life (stalin’s grandson is not entitled to lodge such a complaint). and although under certain conditions personal life may be damaged by the reputation of the deceased member of his family, which makes it possible to refer to art. 8 of the convention, however, in this case the matter is about the reputation of a world-famous person. a distinction should be made between abusive attacks on individuals (their reputation is part of the reputation of their family members and remains protected by article 8 of the convention) and legitimate criticism of public figures that in leadership positions expose themselves to increased public attention15. it should be emphasized that the ecthr clearly draws the line between the reputation of a person and the reputation of a legal entity. thus, in the case of ooo regnum v. russia (application no. 22649/08) the court stated that the right to reputation protection is guaranteed by art. 8 of the convention as part of the right to respect for private life. the court pointed to the broad discretion of states in regulating the private companies’ reputation protection and emphasized that there was a difference between the reputational interests of a legal entity and the reputation of a person as a member of society. a person’s reputation can have consequences for human dignity, and legal entities are deprived of this moral dimension16. we should add that the legitimate purpose of “reputation’s protection” does not cover cases of restriction of the right to freedom of expression because of the necessity to ensure the prestige of public authorities, the reputation of the state, and the honor of the nation. 14 ecthr. (2013). case of putistin v. ukraine (application no. 16882/03). retrieved from http://hudoc. echr.coe.int/eng?i=001-128204 15 ecthr. (2014). case of dzhugashvili v. russia (application no. 41123/10). retrieved from http://hudoc. echr.coe.int/eng?i=001-150568 16 ecthr. (2020). case of ooo regnum v. russia (application no. 22649/08). retrieved from http:// hudoc.echr.coe.int/eng?i=001-204319 http://hudoc.echr.coe.int/eng?i=001-128204 http://hudoc.echr.coe.int/eng?i=001-128204 http://hudoc.echr.coe.int/eng?i=001-150568 http://hudoc.echr.coe.int/eng?i=001-150568 http://hudoc.echr.coe.int/eng?i=001-204319 http://hudoc.echr.coe.int/eng?i=001-204319 tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 319 indicative in this aspect is the case of shvydka v. ukraine (application no. 17888/12), under the circumstances of which the applicant during the celebration of the independence day of ukraine, expressing her complete disagreement with the policy of the president of ukraine (then v. yanukovych), including harassment of the opposition, imprisonment of opposition leader yulia tymoshenko , restrictions for citizens related to the security of the president, tore the ribbon from the wreath laid by the president of ukraine to the monument to the famous ukrainian poet. although the government of ukraine had officially stated that the aim of restricting the applicant’s freedom of expression was to ensure public order (the government insisted that she had been prosecuted not for disagreeing with president yanukovych's policies or activities, but for tearing the ribbon from the wreath, laid by the president), more convincing is the position of judge de gaetano, expressed in a separate opinion. the judge argued that the applicant’s conduct did not constitute a disturbance of the citizens (actual or prematurely warned) or a disturbance of public order and could not have caused even a minor disturbance17. the political aspect of the case has not been analyzed by the ecthr. from today’s point of view, the case seems quite clear (in the context of the motives of the militia’s actions to bring the applicant to justice), given the events of the 2014 revolution of dignity, aimed at overthrowing the yanukovych’s regime. “he never contemplated being voted out of office and serving only one term. the mezhyhyria palace was a sign of the planned consolidation of a long-term authoritarian leader” notes t. kuzio (2016), exploring the orange revolution and the revolution of dignity. “the rapid and dramatic expansion of civil resistance was due to the extremely critical attitude of the people about the policies that were being implemented by those in power, as well as the authoritarian use of power” (shveda & park, 2016). this should be taken into account by national courts in defamation cases. at the same time, freedom of expression may be restricted in the interests of national security, territorial integrity or public security (however, this issue is beyond the scope of our study). therefore, it can be concluded that the right to freedom of expression provides for the possibility of expressing one’s own opinion; opportunity to disseminate information and ideas; opportunity to receive information and ideas. the functioning of art. 10 of the echr is disseminated: a) to any form of expression; b) to both per person and per group of persons or the media; c) to any conten, except for certain restrictions, for example, hate speech is not protected for any content. freedom of expression cannot be used to abolish the rights and freedoms guaranteed by the echr. the legitimate aim of restricting the right to freedom of expression is the need to ensure the right to reputation protection. therefore, it is crucial to find a balance 17 ecthr. (2014). case of shvydka v. ukraine (application no. 17888/12). retrieved from http://hudoc. echr.coe.int/eng?i=001-147445 http://hudoc.echr.coe.int/eng?i=001-147445 http://hudoc.echr.coe.int/eng?i=001-147445 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 320 between these rights. reputation is considered by the ecthr as a component of human identity, his psychological integrity, and therefore when a person’s reputation is damaged so much that it affects the privacy of a person, the reputation falls under the protection of art. 8 of the echr. 4. positive obligations of the state to protect the right to privacy the ecthr established practice contains a number of criteria used to determine the balance between the right to freedom of expression and reputation protection of as a component of the right to privacy. first, as it was abovementioned, reputation can be seen as a component of privacy provided that the information disseminated about the individual (the person’s actions) goes beyond acceptable criticism18. it is under these circumstances that the state should fulfill its positive obligations to protect the right to privacy by restricting the right to freedom of expression. every member of a democratic society can be criticized. at the same time, the constituent values of a democratic society are pluralism, breadth of views (and if we talk about public authorities, then openness and transparency, and public control). recognition of the individuality of each person and the possibility of manifestation of person’s individuality is possible only within a democratic society; the prohibition of the right to freedom of expression, and its excessive restriction are inherent in an undemocratic society and violate the essence of law itself. as an example, we note that “right to ridicule” is being discussed in brazil (ronaldo, 2017). at the same time, the state should balance the right to freedom of expression with the necessity to protect minorities from incitement to discrimination, hostility or violence. this provision forms the basis of the international human rights law (george, 2015). this criterion is quite clear seen in the perception of freedom of expression in the american legal system and in a number of the post-soviet states. it is a well-known fact that us law prohibits congress from passing laws restricting freedom of speech, conscience, the press, and the right to petition (bhagwat, 2020). accordingly, all laws passed in this state are designed to protect freedom of expression. and let’s remember detention of the blogger raman pratasevich in belarus. “in arresting of raman pratasevich, the belarusian authorities have breached the international right to press freedom, which they ferociously trample underfoot every day” said rsf secretary general christophe deloire (2021). however, the question arises: what is the limit of acceptable criticism and what criticism is acceptable? it should be noted at once that it is hardly possible to give an unambiguous answer to this question, even at the national level. otherwise, there would be no complaints to the ecthr. we emphasize that the acceptability of criticism should be determined in each case, taking into account a number of circumstances. thus, we can agree with the team of authors who, studying the criticism of the madurese community in 18 ecthr. (2008). case of petrina v. romania (application no. 78060/01). retrieved from https:// strasbourgobservers.com/category/cases/petrina-v-romania/ https://strasbourgobservers.com/category/cases/petrina-v-romania/ https://strasbourgobservers.com/category/cases/petrina-v-romania/ tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 321 situbondo, which was not familiar with social networks, note the following. the chosen language code for criticism, which is determined by a person’s identity, ethnic group, psychological and cultural factors, is crucial. the model of criticism using sarcasm contains expressions of hatred, insults pride, social status, family and feelings of interlocutors. expressive criticism can also be dangerous and unacceptable to people because it can be misunderstood. although some acceptable criticism is the model of criticism, expressed in subtle language and expressed in humor, figurative, subtle satire and lyrical and poetic expressions (sofyan et al., 2020). criticism involves focusing on person’s certain details (his character, behavior, language style, etc.). at the same time, criticism is a kind of feedback: criticism is expressed about something or someone important (otherwise there would be no criticism) and aims to change the behavior, personality of the person being criticized (otherwise there would be acceptance and no criticism). however, it should be emphasized that for criticism, a person should be competent in the aspect that is criticized. related to this is the fact that the one who criticizes will not aim to humiliate or offend a person. that is why the ecthr systematically reproduces the basic principle: “freedom of expression is one of the basic foundations of a democratic society and one of the fundamental conditions for its progress and every person’s self-realization”19. however, this is why criticism can be associated with, first and foremost, not with the ideas and behavior that are perceived by a person, but with those ideas and behaviors that offend, even shock. but the purpose of criticism should be important in the evaluation process: we emphasize that the critic does not intend to offend a person. tsus, in the case of balaskas v. greece (application no. 73087/17) the ecthr noted that the national courts had used the applicant’s words “well-known neo-nazi headmaster” and “theoretician of the entity ‘golden dawn’” to conclude that the applicant intended to offend director, however, according to the ecthr, the domestic courts did not transfer the impugned remarks to the general context of the case, examined them in isolation from the context of the publication to conclude that the expressions used were not necessary to pursue legitimate interests and that he could use other phrases20. note that, in our opinion, it is at this stage of finding a balance between freedom of expression and reputation protection as a component of a person’s private life, it is necessary to have a clear understanding of the content of the publication. both the council of europe member states national courts’ practice and the ecthr practice have developed a well-established understanding of two types of publications (statements): a) when facts are published (put into words), it is clear that in this case the information communicated to the public, no matter how unacceptable to the person it is, will outweigh the right to privacy. for example, let us indicate the possible publication of a 19 ecthr. (2016). case of bédat v. switzerland (application no. 56925/08). retrieved from http://hudoc. echr.coe.int/eng?i=001-161898 20 ecthr. (2020). case of balaskas v. greece (application no. 73087/17). retrieved from http://hudoc. echr.coe.int/rus?i=001-205545 http://hudoc.echr.coe.int/eng?i=001-161898 http://hudoc.echr.coe.int/eng?i=001-161898 http://hudoc.echr.coe.int/rus?i=001-205545 http://hudoc.echr.coe.int/rus?i=001-205545 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 322 crime committed by some person. thus, a person cannot challenge an infringement of his reputation which is a presumed consequence of his own actions, as stated in the judgment of the ecthr in axel springer ag v. germany (application no. 39954/08): article 8 cannot be relied upon to challenge the loss of reputation that is a predictable consequence of one’s own actions, such as the commission of a criminal offense, for example21. herewith a number of circumstances must be taken into account. thus, in the case of sidabras and džiautas v. lithuania (application nos. 55480/00 and 59330/00) the ecthr has examined whether lithuania has violated a number of articles of the echr. the applicants, by the circumstances of the case, were “former kgb officers” (the lithuanian branch of the soviet security service (the kgb)) and, in accordance with the “kgb act”, were dismissed and complained that the current ban on employment in various fields of the private sector violates art. 8 and 14 of the convention, and as a result of the negative publicity caused by the enactment of the “kgb act” and its application to them, they have been constantly embarrassed by their past. although the ecthr found a violation of article 14 of the convention taken in conjunction with article 8, the court did not take into account the reputation aspect of the case but the disproportionate nature of the state’s measures to restrict employment, and the duration of the “kgb act”. “i consider that the applicants’ argument, that because of the publicity caused by the enactment of the kgb act on 16 july 1998 and its application to them they have suffered constant embarrassment as a result of their past activities, does not deserve the court’s attention”22 judge mularoni pointed out in a separate opinion. in this context, the case of peck v. the united kingdom (application no. 44647/98) deserves attention. the circumstances of the case are as follows. the applicant was walking on the central cheekbone at night with a knife in his hand and, being depressed, decided to commit suicide. at that moment, he was in the field of view of surveillance cameras installed by local authorities. the operator did not see the suicide act directly, but noticed a knife in his hand and reported it to the police. the applicant was assisted at the scene. he survived. a publication was soon made covering how surveillance cameras in public places help to prevent a potentially dangerous situation and the publication of a photo of the applicant from a surveillance camera. later there was a broadcast of a video on this topic. the applicant complained of a violation of art. 8 of the echr and the ecthr recognized such a violation23. although the applicant did not indicate that his reputation had been damaged, he noted the significant impact of the publications and video broadcasts on his family and his life. in general, it is worth of agreeing with the position of the court, although the 21 ecthr. (2012). case of axel springer ag v. germany (application no. 39954/08). retrieved from http:// hudoc.echr.coe.int/eng?i=001-109034 22 ecthr. (2004). case of sidabras and džiautas v. lithuania (application nos. 55480/00 and 59330/00). retrieved from http://hudoc.echr.coe.int/eng?i=001-61942 23 ecthr. (2003). case of peck v. the united kingdom (application no. 44647/98). retrieved from http:// hudoc.echr.coe.int/eng?i=001-60898 http://hudoc.echr.coe.int/eng?i=001-109034 http://hudoc.echr.coe.int/eng?i=001-109034 http://hudoc.echr.coe.int/eng?i=001-61942 http://hudoc.echr.coe.int/eng?i=001-60898 http://hudoc.echr.coe.int/eng?i=001-60898 tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 323 place was public and the camera was installed lawfully, and video from this camera and photos from this camera were reproduced (issue of fact), based on the peculiarities of the phenomenon itself failed suicide but psychological state of the person after this act and efforts to re-establish ties with the outside world. when making a publication (video broadcast), it would be expedient to cover part of the applicant’s face in order to avoid the possibility of his identification by relatives. b) when value judgments are published (expressed). the nature of value judgments determines their difference from the facts and makes it impossible to form a “standard” of value judgment. the prohibition against making value judgments denies the essence of the right to freedom of expression and the essence of democracy. value judgments are not subject to refutation and proving their truth. as is well known, judgment is a mental act of an evaluative nature; it expresses the attitude of the speaker to the event, the person, the statement, and so on. we emphasize that defamation cannot be considered as a value judgment. otherwise, there would be no problem of defamation and judicial protection of a person’s reputation. at the same time, this does not mean that value judgments are unrestricted and can go beyond acceptable criticism. on the contrary, it necessitates the clarification of a number of facts, factual statements, and their verification for the possibility of formulating a value judgment. a value judgment cannot be deprived of a factual basis at all. “even where a statement amounts to a value judgment, the proportionality of the interference may depend on whether there exists a sufficient factual basis for the impugned statement. looked at against the background of a particular case, the statement that amounts to a value judgment may be excessive, in the absence of any factual basis”24. in the case of the medžlis islamske zajednice brčko and others v. bosnia and herzegovina (application no. 17224/11) the court held that there had been no violation of art. 10 of the convention, stating that the applicants acted negligently, simply reporting the candidate’s conduct as a civil servant, without making reasonable efforts to verify its accuracy25. value judgments are statements that do not contain factual data, it is an assessment of actions, opinions, beliefs, critical assessment of certain facts and shortcomings, for which the use of certain linguistic and stylistic means (use of hyperbole, allegory, satire) is characteristic and which are an expression of subjective opinions, views and which can not be verified for their relevance and refute. in the case of de haes and gijsels v. belgium (application no. 19983/92) the european court has ruled in this regard as follows. statements constitute an opinion, the truth of which, by definition, cannot be proved. however, such an opinion may be excessive, 24 ecthr. (2005). case of ukrainian media group v. ukraine (application no. 72713/01). retrieved from http://hudoc.echr.coe.int/eng?i=001-68648 25 ecthr. (2015). case of medžlis islamske zajednice brčko and others v. bosnia and herzegovina (application no. 17224/11). retrieved from http://hudoc.echr.coe.int/eng-press?i=003-5197557-6435495 http://hudoc.echr.coe.int/eng?i=001-68648 http://hudoc.echr.coe.int/eng-press?i=003-5197557-6435495 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 324 in particular in the absence of any factual basis26. this allows us to formulate an answer to the question we mentioned above regarding the acceptability of criticism. criticism that does not aim to humiliate a person and is based on factual grounds is acceptable. however, it should be added that all significant circumstances must be taken into account in this category of cases. thus, one cannot disagree with the ecthr position on the importance of the journalists’ obligation to provide the public with socially significant information, including information that will outrage part of society. at the same time, under certain circumstances, they (journalists) may resort to slight exaggeration or even provocation. “a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas”27. it is also worth noting the position of the ecthr that the use of words such as “neo-fascist” and “nazi” cannot automatically lead to a conviction for defamation, based on the stigma attached to them. this is the case in scharsach and news verlagsgesellschaft mbh v. austria (application no. 39394/98)28. or such generally offensive expressions as “idiot” and “fascist” may be considered acceptable criticism in certain circumstances (case of sbodrožić v. serbia (application no. 32550/05))29. national courts are obliged to find out to what extent the context of the case, the public interest and the intention of the publication author justify resort to a certain provocation or exaggeration – is stated in the case of koutsoliontos and pantazis v. greece (application nos. 54608/09 and 54590/09)30. the duty of journalists to report on matters of public interest requires them to a) act in good faith; b) act on an accurate factual basis (it is important how reasonably they can consider their sources to be reliable); c) provide “reliable and precise” information; d) act in accordance with journalistic ethics; e) rely on an acceptable assessment of the appropriate facts. this is stated in the cases of fressoz and roire v. france (application no. 29183/95)31; of bladet tromsø and stensaas v. norway (application no. 21980/93)32; pedersen and baadsgaard v. denmark (application no. 49017/99)33. 26 ecthr. (1997). case of de haes and gijsels v. belgium (application no. 19983/92). retrieved from http://hudoc.echr.coe.int/eng?i=001-58015 27 ecthr. (2001). case of thoma v. luxembourg (application no. 38432/97). retrieved from http://hudoc. echr.coe.int/eng?i=001-59363 28 ecthr. (2003). case of scharsach and news verlagsgesellschaft mbh v. austria (application no. 39394/98). retrieved from http://hudoc.echr.coe.int/eng?i=001-61441 29 ecthr. (2009). case of sbodrožić v. serbia (application no. 32550/05). retrieved from http://hudoc. echr.coe.int/eng?i=001-93159 30 ecthr. (2015). case of koutsoliontos and pantazis v. greece (application nos. 54608/09 and 54590/09). retrieved from http://hudoc.echr.coe.int/eng?i=001-157370 31 ecthr. (1999). case of fressoz and roire v. france (application no. 29183/95). retrieved from http:// hudoc.echr.coe.int/eng?i=001-58906 32 ecthr. (1999). case of bladet tromsø and stensaas v. norway (application no. 21980/93). retrieved from http://hudoc.echr.coe.int/eng?i=001-58369 33 ecthr. (2004). case of pedersen and baadsgaard v. denmark (application no. 49017/99). retrieved from http://hudoc.echr.coe.int/eng?i=001-67818 http://hudoc.echr.coe.int/eng?i=001-58015 http://hudoc.echr.coe.int/eng?i=001-59363 http://hudoc.echr.coe.int/eng?i=001-59363 http://hudoc.echr.coe.int/eng?i=001-61441 http://hudoc.echr.coe.int/eng?i=001-93159 http://hudoc.echr.coe.int/eng?i=001-93159 http://hudoc.echr.coe.int/eng?i=001-157370 http://hudoc.echr.coe.int/eng?i=001-58906 http://hudoc.echr.coe.int/eng?i=001-58906 http://hudoc.echr.coe.int/eng?i=001-58369 http://hudoc.echr.coe.int/eng?i=001-67818 tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 325 5. criteria for restricting the right to freedom of expression in the context of reputation protection as the criterion for finding a balance between reputation protection and freedom of expression in the ecthr practice is the “contribution of the publication to the debate of public interest”, and it is found out whether the publication has contributed to the debate of public interest. in general, information of public interest includes information indicating threats to national security, public order, human rights implementation and prevents human rights violations, harmful effects of individuals’ and legal entities’ activities, ensures awareness of the facts and phenomena that affect on the state and nature of human life, and on the welfare of the population. an analysis of the ecthr practice allows us to formulate the following list of (non-exhaustive) information of public interest. 1. case of guja v. moldova (application no. 14277/04): information on the intervention of a government official in a criminal investigation34. 2. case of kudeshkina v. russia (application no. 29492/05): information on the functioning of the justice system, on the pressure on judges. “the court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of article 10”35. 3. case of heinisch v. germany (application no. 28274/08): information on poor patient care conditions. in societies where the proportion of older people is constantly increasing, institutional care provided by a state-owned company and who are often unable pay attention to the shortcomings in the provision of care due to particular vulnerabilities36. 4. case of társaság a szabadságjogokért v. hungary (application no. 37374/05): information on the discussion of public cases, in particular the constitutionality of criminal law on drug-related crimes37. 5. case of österreichische vereinigung zur erhaltung, stärkung und schaffung eines wirtschaftlich gesunden landund forstwirtschaftlichen grundbesitzes v. austria (application no. 39534/07): information on the transfer of ownership of agricultural and forest land. in addition, the applicant further assisted in the legislative process by commenting on draft laws falling within his area of competence. in this case, he wanted to receive information on the commission’s decisions on transfer or refuse the transfer of agricultural and forestry land under the tyrolean real estate act38. 34 ecthr. (2008). case of guja v. moldova (application no. 14277/04). retrieved from http://hudoc.echr. coe.int/eng?i=001-85016 35 ecthr. (2009). case of kudeshkina v. russia (application no. 29492/05). retrieved from http://hudoc. echr.coe.int/eng?i=001-91501 36 ecthr. (2011). case of heinisch v. germany (application no. 28274/08). retrieved from http://hudoc. echr.coe.int/eng?i=001-105777 37 ecthr. (2009). case of társaság a szabadságjogokért v. hungary (application no. 37374/05). retrieved from http://hudoc.echr.coe.int/eng?i=001-92171 38 ecthr. (2013). case of österreichische vereinigung zur erhaltung, stärkung und schaffung eines wirtschaftlich gesunden landund forstwirtschaftlichen grundbesitzes v. austria (application no. 39534/07). retrieved from http://hudoc.echr.coe.int/eng?i=001-139084 http://hudoc.echr.coe.int/eng?i=001-85016 http://hudoc.echr.coe.int/eng?i=001-85016 http://hudoc.echr.coe.int/eng?i=001-91501 http://hudoc.echr.coe.int/eng?i=001-91501 http://hudoc.echr.coe.int/eng?i=001-105777 http://hudoc.echr.coe.int/eng?i=001-105777 http://hudoc.echr.coe.int/eng?i=001-92171 http://hudoc.echr.coe.int/eng?i=001-139084 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 326 6. case of stoll v. switzerland (application no. 69698/01): information contained in a secret report by the swiss ambassador to the united states on the strategy to be chosen by the swiss government during negotiations between the world jewish congress and swiss banks “in the context of a public debate about a matter which had been widely reported in the swiss media and had deeply divided public opinion in switzerland, namely the compensation due to holocaust victims for unclaimed assets deposited in swiss bank accounts”39. 7. case of fressoz and roire v. france (application no. 29183/95): information on the remuneration of a large private company head. the publication took place during a major labor dispute and a strike at the company, the employees of which demanded higher wages, and in which they were denied by management. and the chairman of the company received a significant increase in his salary during this period. therefore, the article contributed to the public debate on the general interest40. 8. case of romanenko and others v. russia (application no. 11751/03): information on public resource management reporting41. 9. case of razevedo v. portugal (application no. 20620/04): information on the historical and symbolic analysis of an important monument of the city42. 10. case of tønsbergs blad as and haukom v. norway (application no. 510/04): information on possible violations in the private sphere by public figures43. in general, it can be concluded that information is interpreted as having a significant public interest, provided that it directly affects the normal life of society to a large extent, so society shows a legitimate interest in it. in our opinion, when deciding whether the disseminated information is in the public interest, it is necessary to find out the purpose of such publication. is the publication really aimed at creating a “platform” for discussion on an issue of public interest, contributing to this discussion, or it is used as a means of "black pr" or this is interest limited by unhealthy curiosity. the degree of publicity of the person whose privacy is being interfered with is used as a criterion for finding a balance between the protection of reputation and freedom of expression in the ecthr practice. the established practice of the ecthr assumes that the sphere of human privacy and the sphere of privacy, for example, of a civil servant, are different. “the court notes that it was equally clear that the former prime minister 39 ecthr. (2007). case of stoll v. switzerland (application no. 69698/01). retrieved from http://hudoc. echr.coe.int/eng?i=001-83870 40 ecthr. (1999). case of fressoz and roire v. france (application no. 29183/95). retrieved from http:// hudoc.echr.coe.int/eng?i=001-58906 41 ecthr. (2009). case of romanenko and others v. russia (application no. 11751/03). retrieved from http://hudoc.echr.coe.int/eng?i=001-94843 42 ecthr. (2008). case of razevedo v. portugal (application no. 20620/04). retrieved from http://hudoc. echr.coe.int/eng?i=001-85545 43 ecthr. (2007). case of tønsbergs blad as and haukom v. norway (application no. 510/04). retrieved from http://hudoc.echr.coe.int/eng?i=001-79659 http://hudoc.echr.coe.int/eng?i=001-83870 http://hudoc.echr.coe.int/eng?i=001-83870 http://hudoc.echr.coe.int/eng?i=001-58906 http://hudoc.echr.coe.int/eng?i=001-58906 http://hudoc.echr.coe.int/eng?i=001-94843 http://hudoc.echr.coe.int/eng?i=001-85545 http://hudoc.echr.coe.int/eng?i=001-85545 http://hudoc.echr.coe.int/eng?i=001-79659 tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 327 had been, at the time when the book was published, a public figure. he was thus expected to tolerate a greater degree of public scrutiny which may have a negative impact on his honor and reputation than a completely private person”44. similar provisions are set out in the case of axel springer ag v. germany (no. 2) (application no. 48311/10). the case concerned mr schröder, head of the german government45. in general, the ecthr practice analysis in this category of cases leads to the conclusion that the more powers a person is endowed with, the better known he or she is the more his or her right to privacy may be restricted. at the same time, it should be noted that freedom of expression also has its limits. therefore, although the sphere of privacy of public persons is smaller compared to private persons, however, this sphere is also protected. “in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life”46. the form and consequences of publication, the method of obtaining information, and the behavior of the interested party to publication are used as a criterion for finding a balance between the protection of reputation and freedom of expression in the ecthr practice. these criteria are discussed, in particular, in the case of ooo regnum v. russia (application no. 22649/08)47. given that these criteria have been covered above in one way or another, we will not disclose them in this part of the study. non-unanimous decision-making in considerable number of cases analyzed above, the presence of dissenting opinions of the ecthr judges, the complexity of the subject of analysis value judgments, the importance of rights between which balance is establishedthese are the factors stipulating necessity of distinguishing additional criteria that might be used in judicial practice to consider the abovementioned category of cases. in our opinion, the purpose of publication should be a separate criterion for determining the balance between these rights. the purpose of the publication is partially revealed when clarifying the issue of the publication’s contribution to the discussion, which is of public interest. however, it is so only partially. as we have noted, the purpose allows finding out whether the person wanted to offend the person being defamed or to bring important information to the public. the purpose of the publication may be a factor that distinguishes public interest from unhealthy curiosity. 44 ecthr. (2014). case of ojala and etukeno oy v. finland (application no. 69939/10). retrieved from http://hudoc.echr.coe.int/eng?i=001-139991 45 ecthr. (2014). case of axel springer ag v. germany (no. 2) (application no. 48311/10). retrieved from http://hudoc.echr.coe.int/eng?i=001-145700 46 ecthr. (2012). case of von hannover v. germany (no. 2) (application no. 40660/08 and 60641/08). retrieved from http://hudoc.echr.coe.int/eng?i=001-145700 47 ecthr. (2020). case of ooo regnum v. russia (application no. 22649/08). retrieved from http:// hudoc.echr.coe.int/eng?i=001-204319 http://hudoc.echr.coe.int/eng?i=001-139991 http://hudoc.echr.coe.int/eng?i=001-145700 http://hudoc.echr.coe.int/eng?i=001-145700 http://hudoc.echr.coe.int/eng?i=001-204319 http://hudoc.echr.coe.int/eng?i=001-204319 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 328 in addition, it should be noted that the ecthr (as well as national courts) can use the results of linguistic expertise in a number of cases. of course, an expert opinion should not be a determining factor, as no evidence has a predetermined force for the court. however, it might serve as a guide for finding out, for example, the presence / absence of insults, and so on. in this context, we recall the study by roger w. shuy (2009), devoted to the issue of linguistic analysis of defamation cases. however, this topic needs a separate study and will be the subject of our next study. 6. conclusions and recommendations thus, it can be argued that the cases, related to the establishment of balance between the right to freedom of expression and the right to privacy (in the context of reputation protection), are of the most complex ones. although criteria for establishing such balance are developed in the ecthr practice. these criteria include the following: the contribution of information to the discussion of public interest; the degree of publicity of the person; topic of publication, previous behavior of the person, method of obtaining information; form, content and consequences of publication, degree of punishment. distinguishing between facts and value judgments is a crucial factor in resolving a dispute. the existence of facts can be proved, but the obligation to prove value judgments is a denial of the rights to freedom of expression essence. however, value judgments in defamation cases are considered as such when they are based on a factual component. debatability of decisions in cases of balance between the abovementioned rights stipulates the search for additional criteria for establishing a balance. the purpose of publication might be such a criterion. this criterion allows distinguishing information of public interest from defamatory, offensive information, as well as the publication the purpose of which is to promote public debate from the publication the purpose of which is to satisfy unhealthy curiosity. depending on the circumstances of the case, the judiciary (as well as the ecthr) may use linguistic expertise. the ecthr practice’s analysis in defamation cases (in the context of finding a balance between the reputation protection and the right to freedom of expression protection) allows us formulating the following suggestions. 1. there is a necessity to generalize the criteria for finding a balance between the reputation protection and the protection of the right to freedom of expression and promulgation of some kind of guidance to national authorities on the these criteria’ application. the implementation of this recommendation at the national level provides for seminars and trainings with prosecutors and judges realization. 2. within the first recommendation’s implementation, attention should be paid to the peculiarities of the right to reputation protection interpretation, which in some cases can be considered as a component of the right to privacy (if the encroachment reaches such a level that affects the right to privacy implementation). 3. national courts, as well as the ecthr, should use the following provisions (not yet identified by the ecthr) as criteria for finding a balance between the right to reputation protection and the right to freedom of expression: a) the tetiana m. alforova; mariia m. koba; oksana v. lehka; andrii m. kuchuk the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 329 purpose of disseminating information (this criterion will allow to distinguish information of public interest, as well as defamatory information; to determine whether the information brings something new to the public debate on a crucial issue or whether it satisfies unhealthy curiosity); b) in a significant number of cases involving allegations of defamatory and offensive language, it is appropriate to use linguistic expertise. references asogwa, n. u. & onwuama, m. e. (2021). hate speech and authentic personhood: unveiling the truth. sage open. https://journals.sagepub.com/doi/full/10.1177/ 21582440211005772 barbin, v. v., gadaborshev, r. t., goncharov, i. v., matantsev, d. a., odina, n. v. & stepkin, e. yu. (2019). the constitutional right to protect honor, dignity and business reputation of police officers and its civil implementation. revista san gregorio (special edition), 149-161. bhagwat, a. & weinstein, j. (2021). freedom of expression and democracy. in: the oxford handbook of freedom of speech. https://www.oxfordhandbooks.com/ view/10.1093/oxfordhb/9780198827580.001.0001/oxfordhb-9780198827580-e-5 bhagwat, a. (2020). our democratic first amendment. cambridge: cambridge university press. retrieved from https://www.cambridge.org/core/books/ourdemocratic-first-amendment/ed624dc9fba3bf7e7c4e0de1ab7dc114 cameran, a. 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(2017). data associations and the protection of reputation online in australia. big data & society. https://journals.sagepub.com/doi/pdf/10.1177/2053951717709829 https://journals.sagepub.com/doi/full/10.1177/21582440211005772 https://journals.sagepub.com/doi/full/10.1177/21582440211005772 https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198827580.001.0001/oxfordhb-9780198827580-e-5 https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198827580.001.0001/oxfordhb-9780198827580-e-5 https://www.cambridge.org/core/books/our-democratic-first-amendment/ed624dc9fba3bf7e7c4e0de1ab7dc114 https://www.cambridge.org/core/books/our-democratic-first-amendment/ed624dc9fba3bf7e7c4e0de1ab7dc114 https://doi.org/10.1080/23738871.2020.1778760 https://doi.org/10.1080/23738871.2020.1778760 https://rm.coe.int/1680063765 https://doi.org/10.1002/9781118767771.wbiedcs139 https://doi.org/10.1002/9781118767771.wbiedcs139 https://doi.org/10.1007/s12142-020-00608-8 https://doi.org/10.1146/annurev-polisci-051517-012343 https://doi.org/10.1080/17549507.2018.1392612 https://doi.org/10.1080/17549507.2018.1392612 https://journals.sagepub.com/doi/pdf/10.1177/2053951717709829 right to freedom of expression v. reputation protection (based on ecthr practice materials) the age of human rights journal, 18 (june 2022) pp. 311-330 issn: 2340-9592 doi: 10.17561/tahrj.v18.6527 330 kuzio, t. 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(2009). extreme speech and democracy. https://oxford. universitypressscholarship.com/view/10.1093/acprof:oso/9780199548781. 001.0001/acprof-9780199548781 received: august 4th 2021 accepted: october 26th 2021 https://doi.org/10.18523/kmlpj88183.2016-2.91-115 https://doi.org/10.18523/kmlpj88183.2016-2.91-115 https://doi.org/10.1177/0924051920944747 https://doi.org/10.1177/0924051920944747 https://doi.org/10.1007/s11158-019-09431-6 https://www.scielo.br/j/rdgv/a/trnqx97grkqny4l77jfgbtx/?lang=en https://www.scielo.br/j/rdgv/a/trnqx97grkqny4l77jfgbtx/?lang=en https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195391329.001.0001/acprof-9780195391329 https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195391329.001.0001/acprof-9780195391329 https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195391329.001.0001/acprof-9780195391329 https://doi.org/10.1016/j.euras.2015.10.007 https://doi.org/10.1016/j.euras.2015.10.007 https://doi.org/10.19105/karsa.v28i1.2352 https://doi.org/10.19105/karsa.v28i1.2352 https://doi.org/10.1111/eulj.12308 https://www.un.org/en/about-us/universal-declaration-of-human-rights https://www.un.org/en/about-us/universal-declaration-of-human-rights https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx https://doi.org/10.1177/1748048510362711 https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199548781.001.0001/acprof-9780199548781 https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199548781.001.0001/acprof-9780199548781 https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199548781.001.0001/acprof-9780199548781 right to freedom of expression v. reputation protection (based on ecthr practice materials) 1. introduction 2. the right to freedom of expression content and law aspect of business reputation protection 3. the human right to defend the reputation as part of the right to respect the private life 4. positive obligations of the state to protect the right to privacy 5. criteria for restricting the right to freedom of expression in the context of reputation prote 6. conclusions and recommendations references child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 285 child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria agaptus nwozor1* blessing okhillu2 abstract: nigeria domesticated the united nations convention on the rights of the child and the african charter on the rights and welfare of the child through the enactment of the child’s rights act (cra) in 2003. the cra contains elaborate provisions on the rights to be enjoyed by the nigerian child. in spite of this legislation, the nigerian child, especially the girl-child, is yet to fully enjoy these rights. the major forces that militate against the rights of the girl-child are the cultural and religious norms that are intrinsically embedded in the dominant patriarchal system prevalent in nigeria, especially in northern nigeria. these entrenched norms contribute to the marginalization and preclusion of the girl-child from accessing education. using the lens of radical feminism in combination with human-rights based approach, this paper interrogates the challenges faced by the girl-child in accessing education and the interventionist role played by unicef in salvaging the situation. the paper finds that although the interventionist program of unicef, that is, the nigeria girls’ education project (ngep), contributed in re-enrolling over one million out-of-school girls back to school, a lot needs to be done to salvage the girl-child from the entrenched structural alienation that deprives her of access to education. keywords: girl-child’s rights, education, radical feminism, united nations children’s fund (unicef), nigeria. summary: 1. introduction. 2. brief literature review. 3. theoretical perspective. 4. methodology. 4.1. the context of the study. 4.2. study participants. 4.3. collection of data. 4.4. data analysis. 5. discussion. 5.1. the context and crisis of girl-child education. 5.2. unicef’s contributions to reversing the challenges of girl-child education. 6. conclusion 1. introduction nigeria passed the child’s rights act (cra) in 2003, thus domesticating and giving legal backing to both the united nations convention on the rights of the child and the african charter on the rights and welfare of the child (ogunniyi, 2018; akinola, 2019; assim, 2020). the passing of the child’s rights act was a watershed in the aspirations of child’s rights campaigners in nigeria. the child’s rights act is both comprehensive and ambitious as it places the child at the epicenter of state protection. section 1 of the child’s rights act establishes the philosophical and moral compass of the rights of the 1 department of political science and diplomatic studies, bowen university, iwo, osun state nigeria. 2 department of political science and international relations, landmark university, omu-ara, kwara state, nigeria. * corresponding author: email: agaptus.nwozor@bowen.edu.ng; agapman1@yahoo.co.uk; orcid id: orcid.org/0000-0002-9782-6604. mailto:agaptus.nwozor%40bowen.edu.ng?subject= mailto:agapman1@yahoo.co.uk http://orcid.org/0000-0002-9782-6604 child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 286 child when it provides, “in every action concerning a child, whether undertaken by an individual, public or private body, institutions of service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration”.1 despite the positive contributions of the child’s rights act in mobilizing the legal basis for the advancement of the rights of the child, not much has changed for the nigerian child, especially the girl-child in the area of actualizing her aspirations for quality education. as a part of the efforts to advance the fortunes of the nigerian child, several national, nongovernmental and intergovernmental organizations, including unicef, have initiated diverse programs. a major challenge to actualizing the child’s rights act is its lack of nationwide acceptance and implementation. several states in northern nigeria are opposed to several provisions of the child’s rights act. some of such provisions include the prohibition of child marriage and betrothal (sections 21 and 22), the definition of a child as anyone below the age of 18 (section 277), and the prohibition of marriage between an adopted child and members of the adoptive family (section 147), among others.2 it has been suggested that these northern states oppose the child’s rights act because of the incongruence of some of its provisions with their cultural and religious norms (ogunniyi, 2018). without nationwide applicability, the child’s rights act, lacks the capacity to effectively improve the conditions of children (ogunniyi, 2018; akinola, 2019). in addition to cultural and religious forces such as child-marriage, female genital mutilation, scarification and begging (assim, 2020), the nigerian child faces new threats, namely, abduction, rape, drug abuse, recruitment as soldiers and dehumanization occasioned by security-induced internal displacement (kajjo and kaina, 2020; ajakaiye et al., 2021). a report cited by kajjo and kaina indicated that between 2017 and 2019, boko haram recruited and used 1,385 children for direct combat and other dehumanizing roles, including being exploited as sexual slaves (kajjo. and kaina, 2020). in similar reports based on unicef sources, it was estimated that between 2013 and 2017, over 3,500 children were recruited by armed militant groups and used in the armed conflicts in northeastern nigeria (ajakaye, 2019).3 globally, the united nations children’s fund (unicef) has the mandate to contribute to the general wellbeing of children. the operations of unicef are geared towards advocating for the protection of the rights of children, helping meet their basic needs, and expanding the opportunities that will enable them to reach their full potentials.4 unicef has made tremendous progress in strengthening child protection systems, especially in assisting states to enact laws, and initiate policies, regulations and services 1 see section 1 of the child’s right act, 2003, cap c50 laws of the federation of nigeria, 2010. available at: https://www.refworld.org/pdfid/5568201f4.pdf 2 see the various sections in child’s rights act, 2003. available at: https://www.refworld.org/pdfid/ 5568201f4.pdf 3 see also nextier spd, ‘children in conflict zones’, (29 july 2021). available at: https://nextierspd.com/ children-in-conflict-zones/ 4 see ‘unicef mission statement’. available at: https://www.unicef.org/about-us/mission-statement https://www.refworld.org/pdfid/5568201f4.pdf https://www.refworld.org/pdfid https://nextierspd.com/children-in-conflict-zones https://nextierspd.com/children-in-conflict-zones https://www.unicef.org/about-us/mission-statement agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 287 across all social sectors as well as in contributing to improved protection of children from violence, exploitation and abuse. however, substantial challenges towards the full realization of the rights of children across the globe still subsist (unicef, 2017; unicef, 2019). thus, the focus of unicef are all the children in the world, irrespective of where they reside or their circumstances. as an organization working to protect and assist children around the world, unicef is active in nigeria and has supported the nigerian child not only in the field of education but also in such areas as child poverty, internal displacement, child labor, and health issues (kliesner, 2014). unicef has made continuous contributions to addressing the enrollment deficit in nigeria’s educational sector, including special focus on girl-child education through its education support programs (adedigba, 2019; blueprint, 2020). this paper evaluates the challenges faced by the girl-child in accessing education in the context of the child’s rights act and the interventionist role played (and being played) by unicef in collaboration with the nigerian government. the focus of this paper is northern nigeria where the girl-child’s access to education has been severely constrained. education, including the girl-child education, falls under the purview of the sustainable development goal (sdg) 4, which nigeria subscribed to in 2015. notwithstanding the country’s commitment to pursuing sdg 4, there are still serious gaps in both the enrollment, sustenance and retention of the girl-child in basic schools (blueprint, 2020; federal ministry of education, 2020; obiezu, 2021). the two interrelated questions which this paper addresses are: what are the challenges faced by the girl-child in accessing education in northern nigeria? and, how has unicef’s interventionist role contributed to addressing the challenge of girl-child education in northern nigeria? adjunct to these questions is the consideration of the prospects of institutionalizing relevant frameworks for sustainable girl-child education in northern nigeria. this paper adopted a mixed methods approach to generate the primary and secondary data used in examining the questions under its purview. while the primary data were generated from key informants, the secondary data were obtained from relevant archival materials. the paper finds that unicef’s flagship program of getting out-ofschool girls back to school was successful. however, the success has to be consolidated by institutionalizing relevant structures that can catalyze and sustain greater access to basic school for the girl-child. a major step towards ensuring greater enrollment and retention of the girl-child in school is the wholesale adoption of the child’s rights act by all the states in nigeria and the deployment of necessary resources for its sustained implementation. 2. brief literature review in 2003, the nigerian government enacted the child’s rights act.5 this act mainstreamed nigeria into the circle of countries that presumably takes the protection and promotion of the rights of the child seriously. the various stakeholders championing 5 the child’s rights act was adopted in 2003 after several years of disputations and disagreement among diverse stakeholders. its adoption in 2003 did not enjoy nation-wide support. child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 288 the rights of the child in nigeria described the enactment of the child’s rights act as a milestone (akinola, 2019:138). the act is considered a milestone because of the long walk that characterized the process of enacting it. it took over a decade after nigeria had ratified the united nations convention on the rights of the child in 1991 to domesticate it through the child’s rights act of 2003. the decade-long period of delay was characterized by opposition by diverse groups on the grounds that certain provisions of the united nations convention on the rights of the child were not compliant with the cultures, traditions and other norms in the country, especially in northern states (nzarga, 2016; ajanwachuku, 2017; akinola, 2019). the eventual passage of the child’s rights act by nigeria’s national assembly in 2003 did not resolve the opposition against it. as at the end of 2020, as many as 11 out of the 36 states that make up nigeria were yet to domesticate it (olatunji, 2020). these states are adamawa, bauchi, borno, gombe, jigawa, kano, katsina, kebbi, sokoto, yobe, and zamfara states. ogunniyi (2018: 448) observes that “some states that have re-enacted the legislation have lowered certain standards, such that the statute lacks the strength to improve the conditions of children effectively”. prior to the enactment of the child’s rights act in 2003, several subsidiary laws such as the labour act and the trafficking act existed, and contributed to the protection of the nigerian child (ajanwachuku, 2017; ogunniyi, 2019). however, these laws were inadequate when juxtaposed to the provisions of the united nations convention of the rights of the child, thus necessitating a new legal framework to protect the rights of the child (ajanwachuku, 2017: 162). therefore, the child’s rights act is the first broad and comprehensive legislation with elaborate provisions that protect the rights of the child in nigeria (egede, 2007; ajanwachuku and faga, 2018; assim, 2020). a major setback to the child’s rights act is its non-applicability across nigeria. as a federation, nigeria has 36 constitutionally recognized component units called states. since the child’s rights act was passed by nigeria’s national assembly, only 25 states have adopted it, leaving out 11 states (olatunji, 2020). nigeria has a dual legal order, which allows constituent states to either agree or refuse to adopt laws, which they may have divergent perceptions. but this is only practicable if the issues at stake are within their legislative competence. in the spirit of nigeria’s federal system, the country’s constitution provides for two legislative lists, namely the exclusive and concurrent legislative lists.6 the national assembly exercises absolute legislative jurisdiction on items contained in the exclusive list. both the national and state assemblies are empowered to legislate on items in the concurrent list. however, if there is an inconsistency between the law made by the state and federal governments on an item in the concurrent list, the law made by the federal government is considered superior (egede, 2007; ebobrah and eboibi, 2017). in addition, matters that are neither in the exclusive nor concurrent lists are regarded as residual and, therefore, squarely within the exclusive legislative competence of the houses of assembly of the states (egede, 2007:271). 6 for the legislative lists, see the second schedule of the 1999 constitution of the federal republic of nigeria (as amended). agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 289 in many ways, nigeria’s dual legal order as well as the fact that issues relating to children are in the residual list is behind the impasse surrounding the adoption of the child’s rights act by the states. although the national assembly is empowered to enact legislations for the purpose of implementing treaties, such laws must be ratified by a majority of the legislative houses of the states in the federation before the president can assent to them (egede, 2007). in the case of the child’s rights act, the national assembly failed to meet this constitutional requirement. nevertheless, it went ahead to enact it into law (ogunniyi, 2018). the lack of consensus surrounding the enactment of the child’s rights act exculpates the states from any form of duty to implement it. in other words, the states are not automatically bound to implement it. notwithstanding the disagreement surrounding the child’s rights act, its beauty is embedded in its elaborate provisions that protect and guarantee several rights to the child. these rights ensure that the child’s best interests constitute the paramount consideration of all actions of the state. it also imposes a duty on the state to give every child the overall care necessary for their wellbeing.7 one of the major aspects of the child’s rights act is its emphasis on the education of the nigerian child. section 15, subsection 1 of the child’s rights act provides, “every child has the right to free, compulsory and universal basic education and it shall be the duty of the government in nigeria to provide such education”.8 although the nigerian government has introduced a number of policies to ensure the education of nigerian children, there are still enormous gaps in the literacy level. prior to the adoption of the child’s rights act, the nigerian government had introduced the universal basic education (ube) in 1999. the overall objective of the ube is to provide free primary and secondary education to all nigerian children between the age groups of 6 and 15 years. despite being initiated in 1999, the ube only took off in 2004 following the enactment of a legislative backing known as the compulsory, free universal basic education act of 2004 (aja et al., 2018). the nigerian government also introduced school feeding program in 2004 to provide a meal each school day to all primary school pupils in nigeria. the overall tripartite objectives of the program, beyond catering for the nutritional needs of school children and thus improve their health, included the expansion of school enrolment, the enhancement of student retention, and ensuring a high completion rate (falade et al., 2012). the initial pilot implementation of the school feeding program under the auspices of the federal ministry of education covered 12 states, namely bauchi, cross river, enugu, imo, kano, kebbi, kogi, rivers, ogun, osun, nasarawa, yobe and the federal capital territory (fct). the program failed to accomplish its objective as it was stopped not long after its commencement in 10 states and the fct leaving only osun and kano states, 7 section 2, subsection 1 of the child’s right act, 2003 provides “a child shall be given such protection and care as is necessary for the well-being of the child, taking into account the rights and duties of the child's parents, legal guardians, or other individuals, institutions, services, agencies, organizations or bodies legally responsible for the child." 8 see section15, subsection 1 of the child’s right act, 2003. child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 290 which continued with it.9 the factors identified as being responsible for undermining the program included the failure of both the supervising agency of the program, universal basic education commission (ubec), and the participating states to meet their financial obligations, inadequate policy, legal, institutional and operational framework at both the state and federal levels, and overall poor funding.10 the school feeding program was revived in 2016. the federal government announced as at may 2021 that close to ten million pupils in public schools across the country were being fed under the program (erunke, 2021). the northern part of nigeria accounts for more than a disproportionate number of the 10.5 million children aged 5-14 years estimated to be out-of-school, with girlchildren affected more (bbc, 2017). the net attendance rates of girl-children for primary education in states in north-eastern and north-western nigeria are between 47.3 percent and 47.7 percent, with the implication that more than half of the girls are not in school (premium times, 2019).11 several factors account for poor school enrollment in northern nigeria: these include economic barriers, socio-cultural and religious norms and practices among others (erulker and bello, 2007). unicef started operations in nigeria in 1952, thereby representing one of the very first countries it established a program of cooperation on the african continent (kliesner, 2014). according to kliesner (2014: n.p), in those early days of unicef’s operations in nigeria, its first priority was “to provide relief for nigerians against the endemic diseases of leprosy, yaws, and malaria (the first two of which were no longer considered to be a significant public health issue by the 1960s)”. unicef is very active in nigeria, and has made tremendous advances in various sectors such as child protection, education, health, nutrition, social protection, water, sanitation and hygiene (unicef nigeria, 2019a). despite the advances made by unicef in nigeria, gaps are still evident. peter hawkins, unicef’s country representative in nigeria, was quoted to have acknowledged, “while there have been many advances over the last years, children in nigeria are still not accessing health, nutrition, education and other rights to the extent that they must” (unicef nigeria, 2019a: n.p). unicef has made enormous contributions in addressing the challenges faced by the nigerian child, especially the girl-child, in accessing education. the current insecurity in nigeria, which is masterminded by boko haram and various bandit groups, has had a destabilizing impact on children as well as their access to education. in nigeria’s northeast geopolitical zone, insecurity has deepened humanitarian crisis. it is estimated that over 7.7 million women, men and children are affected, thus creating an acute need for help and protection for vulnerable groups (unicef nigeria, 2019b). the ideological opposition of boko haram to western education has made schools a major target of attacks and 9 see nigeria home grown school feeding strategic plan 2016-2020 (n.d). conference ready version. see p. 8. available at: http://extwprlegs1.fao.org/docs/pdf/nig169078.pdf 10 ibid., see p. 8 11 see also unicef ‘education’. available at: https://www.unicef.org/nigeria/education http://extwprlegs1.fao.org/docs/pdf/nig169078.pdf https://www.unicef.org/nigeria/education agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 291 abductions (ajakaiye et al., 2021). children and schools have been systematically targeted and attacked by boko haram and non-state armed groups, generally known as bandits, either because of their fundamental opposition to western education, or for economic gains through kidnap-for-ransom (nwozor, 2016; isokpan and durojaye, 2017). the direct implication is that children, especially girls, are discouraged from going to schools with attendant mass withdrawal from schools. unicef recently initiated a psychosocial support program for children in northeast nigeria with the objective being to “ensure that children are equipped to cope with and manage distress from the conflict, displacement and resulting crisis” (unicef nigeria, 2019b: 9). since 2009 when boko haram entrenched its terrorist activities on the landscape of northeast nigeria, children have been under serious threat. according to available data, an estimated three million children in northeast nigeria require emergency education support considering that “over 2,295 teachers have been killed and 19,000 have been displaced. almost 1,400 schools have been destroyed with the majority unable to open because of extensive damage or because they are in areas that remain unsafe”( unicef nigeria, 2017a: n.p). the implication is that the northeast holds the unenviable record of being the region with the lowest literacy level, as well as the highest proportion of out-of-school children (isokpan and durojaye, 2017). unicef has consistently evolved various programs to ensure the extension of assistance to children, especially in the area of access to education. in 2017, unicef together with its partners facilitated the enrollment of “nearly 750,000 children in school in the three most-affected states of northeast nigeria” (unicef nigeria, 2017b: n.p). a transit center for children was established with the support of unicef in maiduguri, northeast nigeria. the transit center caters for children formerly linked with armed groups by providing them with educational and vocational support to enable them restart their lives and put their difficult circumstances behind them (adebayo, 2021). unicef initiated nigeria girls’ education project (ngep) with a cash transfer component to facilitate the enrolment of girl-children in schools in northern nigeria where they are most marginalized (unicef nigeria, 2017c). the overall objective of the program centered on expanding the social and economic opportunities available to girls by encouraging them to acquire education. the cash transfer component was more or less like an incentive to eliminate restrictions imposed by poverty, which is also prevalent in northern nigeria (unicef nigeria, 2017c). there is a considerable body of literature on child’s rights and girl-child education in nigeria. the bulk of these works focused on issues relating to either child’s rights or the challenges of girl-child education in nigeria. thus, many of these works examined child’s rights in nigeria vis-à-vis global expectations on child’s rights or from the perspectives of child’s rights as a component of human rights and the attendant limitations in their actualization in the country (egede, 2007; ibraheem, 2015; nzarga, 2016; ajanwachuku, 2017; ogunniyi, 2018; ajanwachuku and faga, 2018; akinola, 2019). other strands of scholarship focused either exclusively on girl-child education or in relation to sociocultural and religious impediments to its actualization, while also dissecting the diverse nature, manifestations and implications of girl-child education to nigeria’s national development (eweniyi and usman, 2013; child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 292 oluyemi and yinusa, 2016; ebobrah and eboibi, 2017; offor et al., 2021). none of the works that constitute the extant literature on child’s rights and girl-child education in nigeria provided insights on how unicef’s interventionist programs have impacted, one way or another, the girl-child education within the broad context of child’s rights act, hence this study. 3. theoretical perspective this study combined radical feminist theory with human-rights based approach to provide insights on the alienation and structural impediments to the enjoyment of rights by children, including the right to education for the girl-child. while radical feminist theory illuminates the interconnections of several forces in limiting active institutionalized intervention in driving girl-child education, the human-rights based approach provides insight into the complementary and interventionist programs of unicef. feminist theories advance assumptions about issues relating to gender, power and the very nature and boundaries of the family (osmond and thorne, 2009). essentially, there is no single perspective with regards to feminism as what “counts as feminist theory is diverse and contested” (radtke, 2017: 359). however, generally, feminism refuses to accept and, in fact, questions the notion that the inequalities between women and men are natural and inevitable (jackson and jones, 1998; radtke, 2017). as such, feminism is preoccupied with four interrelated issues, namely, women and their experiences, women’s subordination and oppression under the existing social arrangement; commitment to ending the unjust subordination, and gender relations as fundamental to all social life (jackson and jones, 1998; osmond and thorne, 2009). the radical variant of feminist theory draws attention to inequalities between men and women, which are built around subtle stratifications in the socio-economic and cultural systems within society, and which undermine and alienate women. it recognizes that gender stratification intersects with other forms of inequality to produce qualitatively different life experiences and opportunities for various groups of women and men. the major proponents of radical feminism include andrea dworkin, catherine mackinnon, tigrace atkinson, valerie solanas, and alice walker (lorber, 1997; chambers, 2005; grosser and tyler, 2021). radical feminism anchors its theorizing on the notions of patriarchy and the politicization of women’s experiences, including their feelings (leavy and harris, 2019). patriarchy advances unequal power relations that are generally exemplified and reinforced by the distribution of functions within the society. the entrenchment of this unequal relations between men and women shapes societal perceptions and reinforces the internalization of subordination-superordination divide (lorber, 1997; qin, 2004). the patriarchal system in northern nigeria is strengthened by the embedded influence of cultural and religious norms. the patriarchal system in northern nigeria tends to favor practices that oppress, subjugate and exploit women. it also disfavors initiatives that could be antithetical to the patriarchal status quo. thus, the patriarchal structures in northern nigeria restrict girl-children as well as their educational opportunities, especially through such religious and cultural practices as child betrothal and early marriage. such agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 293 restrictions rob girl-children of access to education while at the same time help to maintain male domination. human rights-based approach to education focuses on the educational empowerment of the child. its overarching goal is essentially to ensure that each child receives a quality education that values and promotes their right to dignity and optimum growth. as muñoz has asserted, “a rights-based approach to education for all is a holistic one, encompassing access to education, educational quality (based on human rights values and principles) and the environment in which education is provided” (muñoz, 2007: ix). developing an educational approach based on human rights requires a framework that addresses the right of access to education, the right to quality education and respect for human rights in education. the right to education includes a commitment to guarantee equal access, including taking all steps possible to meet the needs of the most vulnerable children. a rights-based approach to education rests on the redefinition and adaptation of the human rights principles of nondiscrimination, equality, accountability, transparency, participation, and empowerment into the education sector. this introduces a root cause approach that focuses primarily on matters of state policy and discrimination (uvin, 2007). human rights-based approach underscores the right to education of all and sundry, especially as basis to address other threats to the enjoyment of human rights, including poverty, and underdevelopment. in this context, human rights-based approach to education guides and organizes all aspects of learning, from policy to the classroom. in other words, the society, including the parents, teachers, state, and other stakeholders are not expected to see this right as charity but a duty and are bound to meet their obligations and support children (as rights holders to claim their rights) (uvin, 2007; broberg and sano, 2018). it is in this regard that the unicef has evolved various programs to remedy the educationdeficit of the girl-child in nigeria and ensure that they can access education despite the patriarchal challenges. 4. methodology as a state party to both the united nations convention on the rights of the child and the african charter on the rights and welfare of the child, the expectation was that nigeria would have completely domesticated the provisions of these international instruments by now. however, this is not the case. the domestication effort is haphazard, with a large segment of the country yet to enact the necessary sub-regional laws to give force to child’s rights. the focus of this paper is the girl-child education, which is intertwined with other rights guaranteed the child by the child’s rights act, and the contributions of unicef for its realization. the paper adopted the mixed methods approach of qualitative research in which both primary and secondary data were generated to address the key concerns of the study. 4.1. the context of the study the focus of this study is nigeria. nigeria is the most populous country in africa and among the top ten most populous countries in the world. the estimated population of child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 294 nigeria in 2020 was 206.14 million with the composition of male and female being 50.68 percent or 104.47 million and 49.32 percent or 101.67 million respectively.12 nigeria is federation of 36 states. out of these 36 states, 19 states and the federal capital territory (fct) are in the north while the remaining 17 states are located in the south. islam and christianity are predominant religions in northern and southern nigeria respectively, with pockets of adherents of african traditional religions on both divides of the geo-polities. nigeria operates pluralist legal system: the north and south operate different legal codes. while the north operates the penal code, which is based mainly on sharia law (braimah, 2014), the south operates the criminal code (bello, 2013; ekhator, 2015). this study focused on northern nigeria where the adoption of child’s rights as encapsulated in the child’s rights act has been contentious. as already noted, 11 northern states are yet to domesticate the child’s rights act. the basis for their reluctance to adopt the law is its substantial non-adherence to subsisting penal codes and cultural norms in northern nigeria. the implication is that most northern states, including those yet to implement the child’s rights act, have weak frameworks to implement child’s rights. the girl-child education constitutes a major challenge due to the extant religio-cultural practices in the north, especially child marriage and betrothal as well as poverty that tend to militate against it (unicef nigeria, 2017c; assim, 2020). it is on the basis of the foregoing that unicef’s programs on education focus on girl-child education in the north. girl-child education in southern nigeria is not an issue as cultural norms have been shaped by religion and criminal codes. thus, the preoccupations of unicef in the south center on other aspects of its mandate. 4.2. study participants this paper generated its primary data from in-depth interviews involving 31 key informants. the key informants were chosen through purposive sampling technique. purposive sampling technique represents an intentional selection of informants based on certain criteria (palinkas et al., 2015). for this paper, the key informants were selected on the bases of knowledgeability and availability for interviews. thus, the decision rule for including persons as key informants for this study centered principally on the possession of demonstrable expertise and knowledge as well as appropriate affiliation to relevant institutions. the key informants comprised: representatives from nigeria’s ministry of education (ki-1-4), ministry of women affairs (ki-5-7), unicef nigeria (ki-8-12), ministry of justice (ki-13-15), representative girl-children ki-16-20, academics/researchers in the universities (ki-21-24), civil society organizations (ki-25-29), and public and social affairs analysts (ki-30-31). the key informants participated voluntarily in the interviews and were aware that they could withdraw whenever they pleased, without a need for them to justify their decision. 12 see world bank ‘population, total – nigeria’. available at: https://data.worldbank.org/indicator/sp.pop. totl.fe.in?locations=ng&most_recent_value_desc=false https://data.worldbank.org/indicator/sp.pop.totl.fe.in?locations=ng&most_recent_value_desc=false https://data.worldbank.org/indicator/sp.pop.totl.fe.in?locations=ng&most_recent_value_desc=false agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 295 4.3. collection of data this paper made use of both primary and secondary data. the primary data were generated from the 31 key informants already mentioned. the instrument used to collect the data was an interview guide that contained semi-structured set of questions. semistructured interview format facilitates effective communication between the researcher and the respondents as it creates a good platform for follow-up questions and conversations beyond prepared questions (nwozor et al., 2021; passley, 2021). a combination of faceto-face interviews, phone discussions, and e-mail exchanges were adopted to elicit and crosscheck information from the key informants. the use of semi-structured interview guide provided the researchers and key informants the opportunity to exhaust all the angles and perspectives of the answers. the secondary data for this paper were sourced from archival materials, including the official webpages of unicef, journal articles, and government documents. 4.4. data analysis the data were reviewed, validated and processed. thematic content analysis was used to analyze the data. thematic content analysis is a method used to analyze documents and texts in order to identify, sift and interpret patterns of meaning across data (nowell et al., 2017). thus, with the aid of thematic content analysis, insights and responses from the key informants were harnessed and synthesized into categories and themes. this technique provided the basis for the establishment of trends and patterns in the words used, their frequencies, their relationships, and the structures and discourses of communication (vaismoradi et al., 2013). the key informants were represented with codes to ensure their anonymity. in the same vein, the secondary data from archival materials were systematically examined for the purpose of extracting and establishing patterns of meanings, and developing relevant empirical insights necessary to illuminate the major problems being examined. all the data were also analyzed and relevant conclusions drawn based on inductive method of interpretation. as part of the strategies to ensure the credibility and trustworthiness of the coding and interpretation of the data, the paper was subjected to member checking by a few of the key informants and the authors (birt et al., 2016). according to brear (2019: 944), member checking is “the process of providing research participants with opportunities to check the accuracy of, expand, amend and/or comment on, raw data or research results”. this strategy made it possible to ensure and establish the transactional validity of the study. 5. discussion the paper focused on the broad question of girl-child marginalization in accessing education and the contributions made by unicef towards addressing this marginalization in northern nigeria. the key informants chosen for this study were broadly interviewed on the extent of their awareness and knowledge about the challenges connected to the implementation of the components of the child’s rights act that relate to education. in addition, they were interviewed on the alienation and marginalization of the girl-child in accessing education in nigeria as well as the effectiveness of the interventionist role child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 296 played by unicef in ensuring greater enrolment of out-of-school children, especially girl-children, into schools. the analysis of responses from the key informants identified and validated major themes that revolved around the nature of the marginalization of the girl-child in accessing education, its overall implications on national development, and the contributions of the interventionist programs of unicef in expanding access to basic education for girl-children. 5.1. the context and crisis of girl-child education as already mentioned, nigeria has an extant legislation that domesticated the un convention on the rights of the child. this legislation, the child’s rights act, has been in operation since 2003. the unanimous views of our key informants indicated that the child’s rights act, as a piece of legislative protection for the nigerian child, is not adequately complemented with political protection to ensure the full enjoyment of the rights contained therein. fig. 1 below shows the several obstacles to girl education in northern nigeria. in a further elaboration of the disconnect between the provisions of the child’s rights act and the rights actually enjoyed by the child, ki-8 contended, the lot of the nigerian child is far from the type and quality of life envisaged by the child’s rights act as exemplified by the persistence of several practices ranging from poor access to education to lack of adequate protection from such exploitative practices as early child betrothal and marriage, child labor, and female genital mutilation among others. fig. 1: obstacles to girls’ education in northern nigeria adapted and modified from british council13 a corollary to the limited acceptance of the child’s rights act in northern nigeria is the absence of sustained advocacy program at the grassroots. ki-11 commented that “we at unicef nigeria are trying to reach out to the masses, especially the parents but there is a limit to which we can go without a robust support base at the state-level”. ki_16 observed, 13 british council (2014) ‘girls’ education in nigeria: report 2014 issues, influencers and actions’, see p. 23. available at: https://www.britishcouncil.org/sites/default/files/british-council-girls-education-nigeriareport.pdf https://www.britishcouncil.org/sites/default/files/british-council-girls-education-nigeria-report.pdf https://www.britishcouncil.org/sites/default/files/british-council-girls-education-nigeria-report.pdf agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 297 it seems to me that our parents have not been fully made to understand why they should make the sacrifice of sending us, their daughters, to school instead of marrying us off. i know the tradition is quite strong in this regard and against the girls. but i believe that more discussions can open more doors of cooperation on this issue of girl-child education. the strong tradition alluded to by ki-16 is the iron-cast patriarchal system that is reinforced and energized by culture and religion. ki-25 argued, there is class character in this whole issue of child rights generally and girlchild rights particularly. what i see is an established pattern of girl-children being marginalized and denied access to education among poor households. thus, beyond the influence of the prevalent patriarchal system, there are other forces that shape the access of girl children to education. there is poverty, there is this perception of girl-children as sources of wealth, there is this haste, if you like, impatience by parents to free themselves from the responsibility of catering for their children, and above all, there is general poor understanding of the relevance of education among the lower class. thus, in northern nigeria, the girl-child is under unremitting threats as she faces serious challenges encapsulated in such practices as early marriage, female genital mutilation and alms begging (ogunniyi, 2018; assim, 2020). ki-5 argued that “the nonadoption of the child’s rights act provides a cover for the continued marginalization and exploitation of the child, especially the girl-child in the north. of course, if there is no law, there will be no infringement and therefore no punishment”. this view was put in perspective by ki-17 thus, “we [as girls being marginalized] have no one to report to or appeal to for assistance about our desire to go to school. it is the same in cases where some of the girls stopped school for various reasons… there is just no one to help out.” one of the key informants, ki-30 observed, the non-adoption of the child’s rights act by some northern states has other consequences. even if non-governmental or intergovernmental organizations like uincef want to help, they are constrained as they may not be able to fund access to education without some kind of counterpart funding. ki-13 provided more insights and elaboration: these states that have not legitimized the child’s rights act cannot budget for the enforcement of those provisions that might have specific funding requirements. this has a limiting effect on pro-rights groups in terms of compelling these states to establish the necessary institutional framework to enforce the enjoyment of such rights by children in such states. as important as the child’s rights act might be, its non-adoption ought not to acquit the states that are yet to adopt it from the responsibility of protecting and promoting child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 298 the human rights of children in their domains. this is because there are other subsidiary legislations (such as the labour act and the trafficking act), with provisions that address child-related issues and which could therefore serve the legal purpose of protecting children (ajanwachuku, 2017; ogunniyi, 2018). however, these adjunct legislations do not strictly focus on the rights of children to education. ki-16 asserted that “the failure of the government at all levels in northern nigeria to pursue a deliberate redemptive policy for the children is responsible for the educational crisis that encompasses the child in that region”. the education profile of children, especially girl-children in northern nigeria, is precarious, which is an indication of lack of commitment on the part of the government to holistically address the education deficits of children. nigeria has the highest number of out-of-school children in sub-saharan africa, which is estimated at one in every five of out-of-school children in the world (premium times, 2021). underscoring how advocacy gap has sustained the marginalization of the girlchild, ki-29 expressed the view, “in the absence of sustained campaign for degenderizing educational benefits, the mindset of average parents in the north is that they are not doing any wrong by not sending their girl-children to school. this makes the discussion a bit more complex”. the foregoing view resonated in the response of ki-20 that “our parents keep assuring us that our not going to school and staying at home to help the family in the farms and markets is also a way of contributing to our economic wellbeing”. the views of the key informants referred to above provide insights on the connections between socioeconomic constraints and the low educational enrolment of the girl-child. national statistical evidence indicates nationwide prevalence of poverty and its particular intensity in northern nigeria. nigeria’s national bureau of statistics estimated that 40.09 percent or 82.9 million nigerians were living below the country’s poverty line of n137,430 (us$381.75 at n360/$1) per annum as at 2019.14 regional disaggregation of the prevalence of poverty pointed to northern nigeria as having a disproportionate percentage of people living in poverty. with regard to the impact of poverty on the prospects of girl child education, ki-4 averred, “in the face of poverty and the imperative of survival, education is disincentivized while child marriage is incentivized as a means of lessening the economic burden on disadvantaged households”. in line with the foregoing contention about the influence of poverty as a push factor in child-marriage, ki-22 noted that “poverty has had negative cyclical and reinforcing impacts on the prospects of girl-children having a brighter future, as it robs them of education and thus spawns a new cycle of poverty”. the leveraging of child marriage as a survivalist tool by households in northern nigeria has been noted in literature. in this regard, child marriages have been used to further the economic interests of households, build new and reinforce existing social ties, and improve or enhance social statuses (yaya et al., 2019; obaje et al., 2020). the entrenched practice of child marriage and attendant benefits undermine the appeal of girl-education. it is even made more complex by the politicization of the child’s rights act. 14 see national bureau of statistics, ‘2019 poverty and inequality in nigeria: executive summary’, 2020. see p. 6. available at: https://nigerianstat.gov.ng/download/1092 https://nigerianstat.gov.ng/download/1092 agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 299 5.2. unicef’s contributions to reversing the challenges of girl-child education unicef has made significant contributions in its area of mandate, which is the advancement of the interest of children in all ramifications. unicef’s commitment in nigeria, as in other parts of the world, is to contribute to the full realization of the rights of all children by helping them to build a strong foundation that will pave the way for them to fulfil their potentials. unicef in nigeria makes its contributions as partners to the government and, where possible, supports the government in its policy, decision-making, social budgeting, planning and program processes that focus on children’s rights.15 thus, the range of operations that unicef engages in traverses education, healthcare, including mandatory immunization, nutrition and child protection. majority of the key informants opined that the various levels of governments in northern nigeria are not doing as much as they should to encourage girl-child education. ki-2 acknowledged that “the estimates of out-of-school children in the north, especially girl-children are indications that enough is not being done to educate the people”. ki-15 linked the interventionist role of unicef to the failure of the states to advance the rights of children and asserted, “it was the suboptimal attention to girl-child education by various levels of government in northern nigeria that catalyzed unicef’s girls’ education project, which is aimed at salvaging the exclusion of girl-children from obtaining education”. this view aligns with the call by mohamed fall, the then unicef representative in nigeria, on nigerian government and other stakeholders during the 2018 international world children’s day to “invest in long-lasting institutional and community-based systems and policies for children’s survival, growth and development” (unicef, 2018). unicef has evolved and implemented a plethora of programs aimed at assisting and uplifting nigerian children in diverse areas. its programs are designed to provide all children an equitable and fair chance to survive and fulfil their dreams, whatever they might be (unicef, 2018). the dismal figures about enrolment and retention at the basic school levels, led to the intervention of unicef through several programs. children play a significant role in any country's national development considering that they constitute the succeeding generations that will continue to drive policies designed to take the country to the next level (unicef, 2017). unicef programs on education tend to prioritize and target children that are most unlikely to access education. the singular overall objective of unicef programs is to serve as mechanisms to empower children to acquire skills and knowledge for lifelong learning.16 the nigeria girls' education project (ngep) was initiated by unicef and funded by the uk department for international development (dfid). the project was developed in 2012 to tackle the high-burden of out-of-school girls, which was, and still is, prevalent in northern nigeria (federal ministry of education, 2020). thus, the focus of the project was to increase the enrolment of girls in schools for basic education (unicef 15 see ‘unicef mission statement’. available at: https://www.unicef.org/about-us/mission-statement 16 see ‘unicef mission statement’. available at: https://www.unicef.org/about-us/mission-statement https://www.unicef.org/about-us/mission-statement https://www.unicef.org/about-us/mission-statement child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 300 nigeria, 2017c). the pro-argument for girl-child education is often based on the logic of its impact on development. ki-2 emphasized it thus, “the girl-child education charts the course for enduring development in countries. for a country like nigeria where poverty is pervasive, educating women offers hope of reversing it”. this view has been echoed by development institutions. the world bank and unicef have always contended that the education of girl-children has positive multiplier effects that ensure improved family life, high productivity and increased earning capacity, which combine to uplift the quality of life among households, communities, and countries.17 the girls’ education project ran for eight years between 2012 and 2020 and covered six northern states, namely bauchi, kano, katsina, niger, sokoto, and zamfara states. the unconditional cash transfer program, an important component of the project, facilitated the positive results recorded by the project. the cash transfer program contributed in changing community and family dynamics by reducing the financial barriers to girls’ enrolment and attendance at school (unicef nigeria, 2017c). the key informants agreed that the cash transfer program was the winning strategy of the nigeria girls' education project that facilitated landmark enrolment of girl-children into schools. ki-9 noted that the cash transfer program played the role of “removing the burden of sponsorship from parents and transferring same to unicef and their partners”. ki30 held the view that the [cash transfer program] was the elixir that stimulated the effective mobilization of girl-children back to basic school, convinced their parents to allow them to go back, sustained their school attendance, and provided hope and concrete assurance to the girls for a better tomorrow. different perspectives emerged from the key informants with regard to the question, “has unicef done enough to effectively address the gaps in girl-child education?” ki-11 provided the following insights, within the context of the resources available, unicef has done very well. don’t forget that unicef’s funding comes from stakeholders. as you might have known, the funding streams are not enough to tackle this huge problem of girl-child education. but it did record significant achievements in narrowing the gap of out-of-school girls. bringing the challenges of mobilizing the girls for school enrolment and retention to the fore, ki-8 averred, the mindset of people in the six northern states where unicef operated is something of curious interest. there was this sense of entitlement resulting in threats by some parents that they would withdraw their daughters from 17 see unicef nigeria, ‘girls’ education’. information sheet, (september 2007). available at: https:// nairametrics.com/wp-content/uploads/2013/04/fact-sheets-on-girls-education.pdf; see also world bank ‘girls’ education’, (8 march 2021). available at: https://www.worldbank.org/en/topic/girlseducation https://nairametrics.com/wp-content/uploads/2013/04/fact-sheets-on-girls-education.pdf https://nairametrics.com/wp-content/uploads/2013/04/fact-sheets-on-girls-education.pdf https://www.worldbank.org/en/topic/girlseducation agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 301 schools. they didn’t seem to understand that ultimately, the training of their girls would translate into economic gains for them. in a way some of these parents saw the gain of the program in the immediate, and as some kind of poverty alleviation program. the nigeria girls' education project was envisaged to achieve results that would advance girls’ education in northern nigeria. thus, the expected areas of impact of the ngep included the improvement of enrolment and retention of girls in basic education, and the strengthening of the capacity of teachers to deliver effective teaching (federal ministry of education, 2020; unicef nigeria, 2017c). the nigeria girls' education project was described by unicef’s chief of education, euphrates wose, as a “huge success”.18 unicef identified the expansion in the enrolment profile of girl-children, the increased awareness on the importance of education, and positive disposition of parents to the education of girl-children as the indicators of the success of the nigeria girls' education project.19 the key informants were asked about their impression of the success or otherwise of the program. ki-19 observed that “success is limited because not all the girls that wanted to go to school got the opportunity to participate”. to ki-25, the major setback to the program was that unicef operated within strict budgetary windows, which made it difficult to explore far afield to cover all the grounds and enroll as many interested girls as possible. while acknowledging that the program was a success, ki-31 raised some fundamental issues: within the context of what unicef set out to do, it is fair to give the organization a high mark. however, my problem is that there is no known modalities for selecting the girls that were enrolled into schools. this poses a challenge. i am not suggesting nepotism, no, not at all. my worry is if there is no established mechanism for choosing the girls, how will an objective evaluation of the program be feasible, and how can future programs in this regard be modelled and pursued to ensure continuity? beyond the immediate success of the program, ki-27 raised the issue of sustainability: “there is no enduring framework to continue with the enrollment of girls into schools. the unicef appeared to have used a hotchpotch of ad hoc mechanisms for its advocacy and enrollment exercises”. ki-22 also posited, 18 see news agency of nigeria ‘unicef says girls education project a huge success’, (21 september 2019), n.p. available at: https://www.pulse.ng/communities/student/unicef-says-girls-education-project-ahuge-success/hvt4lhr 19 see news agency of nigeria available at: https://www.pulse.ng/communities/student/unicef-says-girlseducation-project-a-huge-success/hvt4lhr https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef in nigeria the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 302 the uncertainty about funding may have a serious setback on the quest for sustained enrollment of girl-children into schools. there might even be a reversal in the success that we are celebrating today. thus, the key question is how will the funds keep flowing to ensure the sustainability of girl-child education? the foregoing issues raised by the key informants in connection with the sustainability of the girl-child education are quite legitimate. through the nigeria girls' education project, unicef succeeded in mobilizing a total of 1,135, 465 out-of-school children, mainly girls back to basic school levels (blueprint, 2020). the number was from the estimated total of 3,530,035 out-of-school children (federal ministry of education, 2020). why the future of the girl-child education matters is the funding constraints of unicef and the non-committal of the northern states to this project. according to unicef sources, only sokoto state made budgetary provisions to sustain the girl-child education initiative.20 what this implies is that sustaining the success recorded by unicef through the nigeria girls' education project in the face of uncertain funding constitutes the immediate challenge to girl-child education in northern nigeria. 6. conclusion the nigerian girl-child faces several challenges that are rooted in cultural and religious norms and reinforced by the patriarchal system. the child’s rights act represents a quintessential codification of child’s rights in nigeria. however, the law does not enjoy nationwide acceptance as some 11 states are yet to adopt it due to their opposition to its many provisions (ogunniyi, 2018). the result is that there is no specific nationwide standard of rights accorded the nigerian child. the major aspect of the child’s rights that requires urgent state intervention is access to education as it is intertwined with other rights. the current estimates of out-of-school children in nigeria are about 10.5 million, with a majority of these children being girls (bbc, 2017). yet, primary education is officially free and compulsory. the relevance of education in driving national development and combating poverty has been emphasized.21 while, it is estimated that nigeria loses us$7.6 billion annually for not educating its girl-child (obaje et al., 2019), it has equally been established that education will protect the girl-child from early marriage and position her for greater productivity. according to feser, more than 80 percent of girls with no education marry before 18 years and if a girl finishes primary school, the likelihood of getting married before age 18 drops significantly (feser, 2017). unicef’s nigeria girls' education project greatly assisted in re-enrolling out-ofschool girls back to school. as at the end of 2020 when the program was concluded in the six northern states of bauchi, kano, katsina, niger, sokoto, and zamfara, about 1,135, 465 20 see news agency of nigeria available at: https://www.pulse.ng/communities/student/unicef-says-girlseducation-project-a-huge-success/hvt4lhr 21 see world bank ‘girls’ education’, (8 march 2021). available at: https://www.worldbank.org/en/topic/ girlseducation https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr https://www.pulse.ng/communities/student/unicef-says-girls-education-project-a-huge-success/hvt4lhr https://www.worldbank.org/en/topic/girlseducation https://www.worldbank.org/en/topic/girlseducation agaptus nwozor; blessing okhillu the age of human rights journal, 18 (june 2022) pp. 285-309 issn: 2340-9592 doi: 10.17561/tahrj.v18.6520 303 out-of-school children, mainly girls had been re-mobilized to basic school. the success of unicef’s nigeria girls' education project represents a tremendous achievement and signposts the likelihood of reversing the marginalization and alienation of the child-girl from accessing education. notwithstanding the success of unicef’s interventionist roles through the nigeria girls' education project, girl-child education still faces real challenges that could overturn the progress recorded. thus, this paper recommends: i) the intensification of discussions to get the 11 northern states that are yet to domesticate the child’s rights act to do so. additionally, stakeholders in the child’s rights project should engage the northern states that have domesticated the law to ensure its implementation; ii) sustainable incentives should be evolved to ensure the retention of students in schools. this will involve sustained advocacy and awareness-creation campaigns. iii) the relevant national and international stakeholders should be mobilized to ensure a steady flow of funds. funding is particularly important considering that the success of unicef’s nigeria girls' 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(2007) ‘from the right to development to the rights-based approach: how “human rights” entered development’, development in practice, 17(4-5), pp. 597– 606. doi:10.1080/09614520701469617 vaismoradi, m., turunen, h., & bondas, t. (2013) ‘content analysis and thematic analysis: implications for conducting a qualitative descriptive study’, nursing & health sciences, 15(3), pp. 398–405. doi:10.1111/nhs.12048 yaya, s., odusina, e. k. and bishwajit, g. (2019) ‘prevalence of child marriage and its impact on fertility outcomes in 34 sub-saharan african countries’, bmc international health and human rights, 19, 33. https://doi.org/10.1186/s12914-019-0219-1 received: july 31st 2021 accepted: november 3rd 2021 https://doi.org/10.1186/s12914-019-0219-1 child’s rights and the challenges of educating the girl-child: assessing the contributions of unicef 1. introduction 2. brief literature review 3. theoretical perspective 4. methodology 4.1. the context of the study 4.2. study participants 4.3. collection of data 4.4. data analysis 5. discussion 5.1. the context and crisis of girl-child education 5.2. unicef’s contributions to reversing the challenges of girl-child education 6. conclusion references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 137 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach1 julia kapelańska-pręgowska2 abstract: 23 years after the icj’s advisory opinion on the legality of the threat or use of nuclear weapons, a general treaty prohibiting the use of nuclear weapons has been adopted. it may be anticipated that the tpnw will probably not enter into force very soon, and when it does, it will neither be universally accepted, nor will it significantly influence the practice of the nuclear weapon states. it is therefore justified to analyse the problem under consideration, not from a state-oriented perspective, but from a human and environmentally centred one. the article argues not only that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, but it would also violate international human rights law. the article further dwells upon the customary international law aspects of the problem under consideration. keywords: treaty on the prohibition of nuclear weapons, persistent objector, protection of the environment, right to life, prohibition of nuclear weapons, human rights, international humanitarian law summary: 1. introduction. 2. nuclear weapons in international law from disarmament to prohibition. 3. international humanitarian law perspective. 4. international human rights law perspective. 5. conclusions. 1. introduction the prohibition of nuclear weapons is definitely one of the most politically difficult problems that has been tackled over the decades from the cold war until today.3 fairly recently, in 2016, the international court of justice had an opportunity to issue an authoritative opinion regarding the obligations of states concerning negotiations relating to the cessation of the nuclear arms race and to nuclear disarmament (three cases filed 1 a shorter version of the paper had been presented at the 2019 ahri (association of human rights institutes) conference in potsdam. i would like to thank the anonymous reviewers for their comments and suggestions on how to improve the article. 2 juris doctor (2010), assistant professor at the department of human rights, faculty of law and administration, nicolaus copernicus university in toruń, poland. orcid: 0000-0002-7643-2681; jkapre@umk.pl. 3 regarding the politics behind the nuclear arms race see, inter alia: keith b. payne, nuclear deterrence in u.s.-soviet relations (2019) passim; jain isha, seth bhavesh, “india’s nuclear force doctrine: through the lens of jus ad bellum”, leiden journal of international law 32:1 (2019) pp. 111-130; van jackson, on the brink: trump, kim, and the threat of nuclear war (2019) passim; patricia m. lewis, “nuclear weapons as a wicked problem in a complex world”, nuclear disarmament: a critical assessment (2019) pp. 57-71; paul c. avey, tempting fate: why nonnuclear states confront nuclear opponents (2019) passim; matthew kroening, the logic of american nuclear strategy: why strategic superiority matters (2018) passim. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 138 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach by marshall islands v. india4, pakistan5 and united kingdom),6 but instead found that it could not proceed on the merits of the cases.7 finally, 2017 has brought the long-awaited treaty on the prohibition of nuclear weapons (tpnw).8 transcribing the prohibition of nuclear weapons into a positive (treaty) law should —at least in theory— close the gap in the ban on weapons of mass destruction. unfortunately, for the time being, the number of signatory states has reached 81, and the number of states parties is only 35.9 moreover, a quite significant number of un members did not participate in the conference and sent a clear signal that they will not support its outcomes.10 amongst these countries were, inter alia, all the known or presumed nuclear weapon states (china, france, russia, united kingdom, united states, democratic people’s republic of korea, india, pakistan, israel).11 thus, it may be anticipated that the tpnw will probably not enter into force very soon (as it requires ratification by 50 states), and when it does, it will neither be universally accepted, nor significantly influence practice of the nuclear weapon states. it is therefore justified to consider the topical problem, not from a state-oriented perspective, but from a human and environmental-centred one. the aim of the article is to explore this approach. it is based on the thesis that not would only any use of nuclear weapons be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, but it would also violate international human rights law. the article also dwells upon the general (customary) international law aspects of the topical problem. 2. nuclear weapons in international law from disarmament to prohibition notwithstanding the full awareness and knowledge about the destructive force and catastrophic humanitarian impact of nuclear weapons, steps towards the full prohibition 4 obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament (marshall islands v. india), jurisdiction and admissibility, judgment, i.c.j. reports 2016, p. 255. 5 obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament (marshall islands v. pakistan), jurisdiction and admissibility, judgment, i.c.j. reports 2016, p. 552. 6 obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament (marshall islands v. united kingdom), preliminary objections, judgment, i.c.j. reports 2016, p. 833. 7 on the ground of the lack of court’s jurisdiction under article 36, paragraph 2 of its statute, based on the absence of a dispute between the parties. it should be noted however, that voting results were far from unanimous 9:7, 9:7 and 8:8 respectively. 8 adopted on 7 july 2017 by the united nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, held in new york from 27 to 31 march and 15 june to 7 july 2017. open for signature from 20 september 2017. document a/conf.229/2017/8, available at: https://undocs.org/a/conf.229/2017/8 (last accessed on 20 july 2019). 9 ratification status available at: https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_ no=xxvi-9&chapter=26&clang=_en (last accessed on 6 march 2020). 10 joint press statement from the permanent representatives to the united nations of the united states, united kingdom, and france following the adoption of a treaty banning nuclear weapons, united states mission to the united nations (july 7, 2017), available at: https://usun.state.gov/remarks/7892 (last accessed on 3 august 2019). 11 the list of participants available at: https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/08/ a-conf.229-2017-inf-4-rev.1.pdf (last accessed on 3 august 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 139 julia kapelańska-pręgowska of nuclear weapons from the beginning have reached the dead-end of the opposition of nuclear weapon states.12 several multilateral treaties governing nuclear weapons limit their use, stockpiling, production, and testing,13 but until the adoption of the tpnw there was no conventional norm that would provide for a general prohibition of the use of nuclear weapons. also a number of bilateral treaties and arrangements aimed to reduce or eliminate certain categories of nuclear weapons.14 the question if any use of nuclear weapons would be contrary to international law was reflected upon by the icj in its 1996 advisory opinion.15 the court at the time (that is 23 years ago) presented the standpoint that “in view of the present state of international law viewed as a whole, as examined above by the court, and of the elements of fact at its disposal, the court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a state in an extreme circumstance of self-defense, in which its very survival would be at stake”.16 the icj relied, inter alia, on the fact that there was no general treaty prohibiting the use of nuclear weapons (obligation of nuclear disarmament), while there were treaties prohibiting biological or chemical weapons. this normative background changed in 2017, when the treaty on the prohibition of nuclear weapons (tpnw) was adopted. the full implementation of article vi npt requires a legally binding norm to prohibit nuclear weapons —this is now possible because of the tpnw. the treaty explicitly builds on the non-proliferation treaty, as acknowledged in its preamble. the treaty on the prohibition of nuclear weapons was adopted by a un conference by a vote of 122 states in favour with 1 vote against (netherlands)17 and 1 abstention (singapore) on 7 july 2017,18 and opened for signature by the 12 in the last few years three international conferences regarding the humanitarian consequences of nuclear weapons have taken place: in oslo (2013), in nayarit (2014) and vienna (2014). the majority of un members were represented, as well as many international organizations and ngos. however, amongst the acknowledged and unacknowledged nws (nuclear weapon states) only india and pakistan were represented. also none of the permanent members of the security council was present. 13 such as the treaty of tlatelolco (1967), the treaty of rarotonga (1985) and the treaty of bangkok (1995). see a full comparative list of treaties in: geneva academy of international humanitarian law and human rights, international law and policy institute, nuclear weapons under international law. an overview, october 2014, pp. 16-17, available at: https://www.geneva-academy.ch/joomlatools-files/docman-files/ nuclear%20weapons%20under%20international%20law.pdf (last accessed on 22 august 2019). 14 such as the india-pakistan non-attack agreement (1988), the strategic offensive reductions treaty (2002) and the joint declaration of south and north korea on the denuclearization of the korean peninsula (1992). more information available at: https://www.nti.org/learn/treaties-and-regimes/treaties/ (last accessed on 22 february 2020). 15 legality of the threat or use of nuclear weapons, advisory opinion, i.c.j. reports 1996, p. 226. for an academic discussion triggered by the opinion see, inter alia, laurence boisson de chazournes and phillippe sands (eds.) international law, the international court of justice and nuclear weapons (1999), passim. 16 ibid., para 97. 17 the netherlands indicated that the tpnw is incompatible with the nato obligations, contains inadequate verification provisions and undermines the non-proliferation treaty. see explanation of vote of the netherlands on text of nuclear ban treaty available at https://s3.amazonaws.com/unoda-web/wp-content/ uploads/2017/07/netherlands-eov-nuclear-ban-treaty.pdf (last accessed on 4 september 2019). 18 voting results available at: https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/07/a. conf_.229.2017.l.3.rev_.1.pdf (last accessed on 4 september 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 140 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach secretary-general of the united nations on 20 september 2017. the treaty includes a comprehensive set of prohibitions on states participating in any nuclear weapons activities. these include undertakings not to develop, test, produce, acquire, possess, stockpile, use, or threaten to use nuclear weapons. surprisingly or not the final text of the treaty provides for a withdrawal clause in article 17(2). the said clause grants a states party a right to withdraw from the treaty if it decides that “extraordinary events related to the subject matter of the treaty have jeopardized the supreme interests of its country”. it has been maintained, although several participants (chile, ecuador, ghana, palestine and south africa), as well as the icrc, advocated its deletion, raising the argument of the contradiction between the vague language of the withdrawal clause and the very purpose of the treaty.19 the author also fails to see how the clause is to be reconciled with the preambular concern “about the catastrophic humanitarian consequences that would result from any use of nuclear weapons” and recognition of “the consequent need to completely eliminate such weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances”. human rights and humanitarian reasons cannot be compromised with the unspecified supreme interests of a country. you simply cannot have your cake and eat it. it is nonetheless a radical, not to say utopian viewpoint, incompatible with the reality of international relations and politics that are dependent on compromise.20 as long as weapons of mass-destruction are in the possession of even a single country, there will be no mutual trust and there always will have to be a “safety valve” in arms control treaties. as already noted, the number of signatory states reached 70 and the number of states parties is only 20. even though it may be anticipated that the tpnw has little chance to enter into force in the near future (as it requires 50 states parties) it is worthwhile to consider the potential norm-building force of the treaty. acceptance (ratification/accession) of the treaty by individual states —as the evidence of relevant state practice— could lead to the crystallization of a customary norm.21 the prohibition of nuclear weapons has already been endorsed and advocated by the vast majority of countries22 and their practice could be assessed as general (sufficiently widespread 19 laura considine, “contests of legitimacy and value: the treaty on the prohibition of nuclear weapons and the logic of prohibition”, 95: 5 international affairs (2019) p.1090. 20 as observed by the international association of lawyers against nuclear arms (ialana) the inclusion of such a clause is likely to enhance universality of participation in the treaty see: withdrawal clauses in arms control treaties: some reflections about a future treaty prohibiting nuclear weapons, paper submitted by ialana for the un conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, 31.03.2017, a/conf.229/2017/ngo/wp.13, p. 4. 21 daniel rietiker, “new hope for nuclear disarmament or “much ado about nothing?”: legal assessment of the new “treaty on the prohibition of nuclear weapons” and the joint statement by the usa, uk, and france following its adoption”, 59 harvard international law journal (2017) p. 25-26. 22 however, even though support for a nuclear weapon free world seems almost global, voting at the general assembly does not always support that belief. at the seventeenth session in december 2015 three resolutions addressing nuclear disarmament were adopted (resolution 70/47 “humanitarian consequences of nuclear weapons” with a voting 144-18-22; resolution 70/48 “humanitarian pledge for the prohibition and elimination of nuclear weapons” with a voting 139-29-17, and resolution 70/50 “ethical imperatives for a nuclear-weapon-free world” with a voting 132-36-16. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 141 julia kapelańska-pręgowska and representative)23 and consistent.24 most probably however, at least several states would not be willing to be bound by the treaty.25 therefore, the question is —if (sooner or later) the treaty reaches the status of ratifications leading to a (quasi) universal treaty— might it express a customary rule that also binds states that did not ratify the instrument? would these states be considered as persistent objectors that are not bound by a customary prohibition of nuclear weapons when (if) it comes into existence? the persistent objector rule is based on the idea that it cannot prevent a customary norm from being established, but can only avoid the application of the norm in relation to a particular state or states.26 so far, the nuclear weapons states were willing to reduce and control their nuclear stockpile. however, their official statements against the tpnw (as well as earlier opposition towards further disarmament) seem to meet the criteria for the operation of the persistent objector rule: objection, persistence, and consistency.27 the united states, united kingdom, and france issued a statement following the adoption of the tpnw where they stated that “we do not intend to sign, ratify or ever become party to it. therefore, there will be no change in the legal obligations on our countries with respect to nuclear weapons. for example, we would not accept any claim that this treaty reflects or in any way contributes to the development of customary international law”.28 this statement clearly expressed the intent of these states to be treated as persistent objectors.29 however, if the rule to be created concerns a peremptory norm of international law (jus cogens)30 or even a broader catalogue of norms (such as erga 23 icj, north sea continental shelf, judgment, i.c.j. reports, 1969, p. 3, para 73. the court suggested that “a very widespread and representative participation in the convention might suffice in itself, provided it included that of states whose interests were specially affected”. which states are to be regarded as “specially affected” by the prohibition of nuclear weapons? the answer to this question seems obvious: all the states of the globe. it would be unacceptable to put forward that that only nuclear-weapon states should be regarded as such. 24 conclusion 8 in: ilc, draft conclusions on identification of customary international law (2018). regarding the question of quantity and quality of practice, repetition, and duration in time: michael akehurst, “custom as a source of international law”, british yearbook of international law (1974-1975), reprinted in martii koskenniemi (ed.), sources of international law. the library of essays in international law (2000) p. 264-268; michael wood, second report on identification of customary international law, 22 may 2014, a/ cn.4/627, pp. 36-40. 25 not only nuclear weapon states, but also countries hosting nuclear weapons or endorsing nuclear weapons that did not participate in the tpnw negotiations see https://www.icanw.org/the-facts/nuclear-arsenals/ (last accessed 9 september 2019). 26 rietiker, supra note, p. 27. 27 see further: conclusion 15 in: ilc, draft conclusions, supra note; elias olufemi, “persistent objector”, max planck encyclopedia of public international law, p. 1, available at: http://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e1455?prd=epil (last accessed on 29 august 2019); jonathan i. charney, “the persistent objector rule and the development of customary international law”, 56:1 british yearbook of international law (1985) pp. 1-24; james a. green, the persistent objector rule in international law (2018) part 2. 28 joint press statement from the permanent representatives to the united nations of the united states, united kingdom, and france following the adoption of a treaty banning nuclear weapons, united states mission to the united nations (july 7, 2017), available at https://usun.state.gov/remarks/7892 (last accessed on 10 september 2019). 29 according to the conclusion 15, “the objection must be clearly expressed, made known to other states […]”. 30 draft conclusion 15 (3). see also green, supra note, part 3. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 142 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach omnes obligations31 or particularly “fundamental” customary international law norms of non jus cogens status,32 it is applicable to all states and no state can rely on the persistent objector exception. the use of nuclear weapons would almost certainly affect fundamental human rights that cannot be derogated from in time of war or other public emergency threatening the life of the nation,33 such as the right to life, the prohibition of torture, inhuman, or degrading treatment.34 this issue will be addressed in more detail in the last section of the article. owing to the fact that the tpnw has not entered into force yet, the treaty on the non-proliferation of nuclear weapons (npt) remains the most comprehensive convention in this respect. it was opened for signature in 1968 and entered into force in 1970. a total of 191 states have joined the treaty, including the five nuclear-weapon states.35 notwithstanding the wide acceptance of the treaty, it has been successful only partially. its objective was to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament.36 the goal of the global nuclear non-proliferation has largely been achieved, but the same cannot be said regarding the nuclear disarmament. implementation of article vi slowed down. north korea announced its withdrawal from the npt in 2003. the five nuclear-weapon states (recognized by the npt) clearly aim to keep the status-quo. in the reports on the implementation of the treaty submitted for the review conference that took place in 201537 the following justifications can be found: as for china: “china exercises utmost restraint in the development of its nuclear weapons, which 31 draft conclusion 15 does not mention erga omnes obligations, nevertheless the commentary to it recalls that the commentary to draft conclusion 1 already makes it clear that all of the present draft conclusions are without prejudice to questions of hierarchy among the rules of international law, including those concerning peremptory norms of general international law (jus cogens), or questions concerning the erga omnes nature of certain obligations. see: ilc, draft conclusions on identification of customary international law, with commentaries (2018), available at: http://legal.un.org/docs/?path=../ilc/texts/instruments/english/ commentaries/1_13_2018.pdf&lang=ef (last accessed 17 august 2019). 32 green, supra note, part 3. 33 see article 15 of the european convention on human rights. 34 there is a consensus about the peremptory nature of a narrow set of human rights norms: olivier de schutter, international human rights law. cases, materials, commentary (2nd ed., 2014) p. 87; ian d. seiderman, hierarchy in international law. the human rights dimension (2001) pp. 66-105; daniel rietiker, humanization of arms control: paving the way for a world free of nuclear weapons (2017) pp. 173–95; robert kolb, peremptory international law a general inventory (2015) pp. 77-80; gerard cohen-jonathan, le jus cogens et le droits de l’homme, in melanges en l’honneur de jan charpentier, la france, l’europe, le monde (2008) pp. 61-72. 35 status of the treaty http://disarmament.un.org/treaties/t/npt. uk ratified in 1968, russia and usa ratified in 1970, france and china acceded in 1992. 36 text of the treaty available at: http://disarmament.un.org/treaties/t/npt/text (last accessed 6 september 2019). 37 in accordance with action 21 of the final document of the 2010 review conference of the parties to the treaty on the non-proliferation of nuclear weapons, all the nuclear-weapon states are encouraged to agree on a standard reporting form and to determine appropriate reporting intervals for the purpose of voluntarily providing standard information without prejudice to national security. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 143 julia kapelańska-pręgowska is consistent with its quest for their complete prohibition and thorough destruction, its nofirst-use of nuclear weapons policy and its self-defence-oriented nuclear strategy. china’s first-generation leaders, chairman mao zedong and premier zhou enlai, unequivocally stated that “our country may manufacture a small number of atomic bombs, but we do not plan to use them ... we have them only as defensive weapons”;38 as for the united states: “the united states would only consider the use of nuclear weapons in extreme circumstances to defend the vital interests of the united states or its allies and partners [….] nuclear plans must be consistent with the fundamental principles of the law of armed conflict, and will apply the principles of distinction and proportionality and will not intentionally target civilian populations or civilian objects”;39 as for russia: “the current version of the military doctrine of the russian federation approved by president vladimir putin on december 26, 2014, is of a clearly defensive nature. according to the doctrine, the use of nuclear weapons is strictly limited and is admitted in solely two exceptional cases: that of an attack against russia or its allies involving the use of wmd and that of a threat to the existence of the state itself”.40 as could have been anticipated from the above mentioned statements, the 2015 review conference of the parties to the npt was unable to reach a consensus on a substantive final document. the preparatory process for the 2020 review conference is currently heading to an end. the third (and the last) session of the preparatory committee for the 2020 review conference took place in april-may 2019. the current practice and statements of nuclearweapon states do not allow for any optimism regarding the outcomes of the conference.41 five nuclear-weapon states (recognized by the npt) clearly aim to keep the status-quo regarding their nuclear doctrine and arsenal. in the reports on the implementation of the treaty submitted for the 2020 review conference, we find, inter alia, that “the uk independent nuclear deterrent will remain essential to our security today, and for as long as the global security situation demands”,42 that “china has always upheld its commitment not to be the first to use nuclear weapons at any time and under any circumstances, in itself a practical act of nuclear disarmament” and that “china unconditionally undertakes not to use or threaten to use nuclear weapons against non-nuclear-weapon states and nuclear-weapon-free zones”.43 the usa, russia and france did not submit their reports. in february 2019 the united states and the russian federation issued declarations of the suspension of compliance with the obligations under the intermediate-range nuclear forces treaty (inf),44 and in august 2019 the usa formally withdrew from the treaty. 38 report submitted by china (npt/conf.2015/32), para 13. 39 report submitted by the usa (npt/conf.2015/38), p. 2. 40 report submitted by russian federation (npt/conf.2015/38), para 17. 41 see, inter alia, a closing statement by the united states, available at: http://statements.unmeetings.org/ media2/21492305/us-closing-statement_for-submission-to-un.pdf (last accessed on 14 september 2019). 42 national report pursuant to actions 5, 20, and 21 of the nuclear non-proliferation treaty (npt) 2010 review conference final document, npt/conf.2020/pc.iii/7, p. 2. available at: https://undocs.org/npt/ conf.2020/pc.iii/7 (last accessed on 15 september 2019). 43 implementation of the treaty on the non-proliferation of nuclear weapons in the people’s republic of china, npt/conf.2020/pc.iii/8, p. 3, available at: https://undocs.org/npt/conf.2020/pc.iii/8 (last accessed on 19 september 2019). 44 the treaty that bans missiles with short and medium ranges was signed by the us and the ussr in 1987. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 144 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach these steps represent a significant setback for the nuclear disarmament process and run counter to the implementation of the non-proliferation treaty’s article vi obligations.45 russia’s current standpoint regarding nuclear disarmament has been articulated as follows: “for russia, the possession of such weapons is a necessity and the only possible response to very specific external threats. it will not be feasible to renounce nuclear weapons until these threats have been addressed. at the same time, the role of nuclear weapons could be further defined and reduced in the light of developments and changes in the strategic situation”.46 similar justifications have been presented by the united states.47 taking the above statements into consideration it may be anticipated that the disarmament process will not get much further. “the still strong adherence to the practice of deterrence” by a few nuclear weapon states was exactly the argument on which the icj relied in its 1996 advisory opinion.48 it was deemed an obstacle to the formation and consolidation of opinio juris and a customary rule as to the illegality of nuclear weapons, leading to “a specific and express prohibition” of their use.49 could such a position be maintained, taking into account that today the prohibition of nuclear weapons is expressly stated in positive law? moreover, there has been a visible development in the disarmament process since 1996 and, as already indicated, the practice of ultimately almost all other states could be assessed as general (sufficiently widespread and representative) and consistent, and therefore capable of crystallizing a customary ban on nuclear weapons. the adoption of the tpnw is definitely another important step in this direction, and the fact that 122 states supported it in voting is clear evidence of their practice. however it would be difficult to argue that it was the final and definite step of the formation of a customary norm. to end this part of the article it should be recalled that attempts aimed at restricting the tests of nuclear weapons had also been facing problems. the treaty banning nuclear weapon tests in the atmosphere, in outer space, and under water (known as the partial test ban treaty) was signed in 1963 and entered into force the same year.50 throughout the 70s of the xx century, the un general assembly adopted several resolutions pointing out the dangers of a nuclear arms race, and calling on states to stop testing nuclear weapons, as well as to ratify the test ban treaty of 1963. as we all know, nuclear testing did not stop together with the cold war. the discussion on the international forum restarted after the test conducted by france on the pacific in the 90s. the question of the legality of nuclear tests was raised by australia and new zealand before the international court of 45 https://www.nato.int/cps/en/natohq/news_162996.htm (last accessed 28 august 2019). 46 working paper submitted by the russian federation, npt/conf.2020/pc.iii/wp.6, para 7, available at https://undocs.org/npt/conf.2020/pc.iii/wp.6 (last accessed on 14 august 2019). 47 working paper submitted by the united states of america, operationalizing the creating an environment for nuclear disarmament (cend) initiative, npt/conf.2020/pc.iii/wp.43, available at: https://undocs. org/npt/conf.2020/pc.iii/wp.43 (last accessed on 14 august 2019). 48 icj, supra note, para. 67, 73. 49 ibid., para. 73. 50 the number of states parties is 125. ratification status available at: http://disarmament.un.org/treaties/t/ test_ban (last accessed on 5 september 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 145 julia kapelańska-pręgowska justice.51 efforts of the unga,52 as well as of other organs and institutions, finally led to the adoption (in september 1996) of the long-awaited comprehensive nuclear test ban treaty.53 the treaty is still not in force.54 because of the current crisis of arms control and the unwillingness of the nuclear weapon states to bind themselves with a prohibition of nuclear weapons, it is justified to look at the problem from the ihl and ihrl perspective and explore arguments against the legality of the use (or threat of use) of these weapons. 3. international humanitarian law perspective according to one of the basic principles of the ihl the right of parties to an armed conflict to choose methods or means of warfare is not unlimited.55 the aforementioned limitations can be found both in conventional, as well as in customary norms of jus in bello (international law applicable in armed conflict). until very recently however, there was no treaty norm prohibiting the use and threat of nuclear weapons. nevertheless, it has well been argued that even without such explicit norm, other principles and rules of ihl are applicable to the use and threats of use of nuclear weapons, such as: the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment.56 tpnw in its preamble explicitly provides that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law. the rule of distinction/discrimination prohibits the use of a weapon that cannot discriminate in its effects between military and civilian targets.57 the law recognizes that 51 nuclear tests (new zealand v. france), judgment, i.c.j. reports 1974, p. 457 and nuclear tests (australia v. france), judgment, i.c.j. reports 1974, p. 253. 52 resolution a/ res/50/7(m) of 1995 specifically recognizes the importance of considering environmental safeguards in treaties and agreements regarding disarmament, and further highlights the detrimental environmental effects of the use of nuclear weapons. 53 text of the treaty available at http://disarmament.un.org/treaties/t/ctbt/text (last accessed on 18 august 2019). 54 it has a significant number of 168 states parties, however it requires ratification by all states listed in annex 2 to this treaty. 55 see generally: stefan oeter, “methods and means of combat”, in d. fleck (ed.), the handbook of international humanitarian law (2008) pp. 119-236; robert kolb and richard haye, introduction to the international law of armed conflicts (2008) pp. 43-49, 125-172; ingrid detter, the law of war (2nd ed., 2000) pp. 276-312. 56 regarding the four core principles see: gary d. solis, the law of armed conflict. international humanitarian law in war (2010) pp. 250-285. see also stuart casey-maslen, “the use of nuclear weapons under rules governing the conduct of hostilities”, in g. nystuen, s. casey-maslen, a. golden bersagel (eds.), nuclear weapons under international law (2014) pp. 91-127; simon o’connor, “nuclear weapons and the unnecessary suffering rule”, in idem, pp. 128-147. 57 according to the rule 71 of the customary ihrl the use of weapons which are by nature indiscriminate is prohibited. text available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule71 (last accessed on 7 august 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 146 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach the use of a particular weapon against a military target may cause unintended collateral or incidental damage to civilian persons and objects and permits such damage, subject to compliance with the other applicable rules of law, including the principle of proportionality. however, the weapon must have been intended for —and capable of being controlled and directed against— a military target, and the civilian damage must have been unintended and collateral or incidental.58 the rule of distinction (together with the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering) has been addressed by the icj in the advisory opinion of 1966. the court noted that “in view of the unique characteristics of nuclear weapons, […], the use of such weapons in fact seems scarcely reconcilable with respect for such requirements”.59 these humanitarian reasons however did not allow the court to come to the conclusion that all use or threat of use of nuclear weapons would be unlawful. apart from the fact that not all acknowledged and unacknowledged nuclear weapon states are parties to protocol i to the geneva conventions60 (india, israel, pakistan and the united states are not, for instance), it has been argued that the 1977 additional protocol i is not, as such, applicable to the use of nuclear weapons. some scholars however present another view.61 since the text of the protocol is of a general character and does not refer to any specific weapon or weapon category, it should therefore be presumed to apply to any type of weapon. this interpretation has been challenged by france and the uk in their reservations to the protocol. the uk explicitly stated that “the rules introduced by the protocol apply exclusively to conventional weapons without prejudice to any other rules of international law applicable to other types of weapons. in particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear weapons”.62 one of the reservations upon ratification made by france may suggest that there could be some (extreme) situations that would justify the use of nuclear weapons.63 france made a similar interpretative declaration to the rome statute, trying to exclude the application of „war crimes” to the use of nuclear weapons.64 russia did not make any reservation of this kind. it is highly doubtful if such 58 yoram dinstein, the conduct of hostilities under the law of international armed conflicts (2004) pp. 116-124. 59 nuclear weapons advisory opinion, supra note, para. 95. 60 protocol additional to the geneva conventions of 12 august 1949 relating to the protection of victims of international armed conflicts (protocol i), 8 june 1977. 61 eric v. koppe, “use of nuclear weapons and protection of the environment during international armed conflict”, in nystuen et al., supra note, pp. 247-268. 62 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/notification.xsp?action=opendocument&documentid= 0a9e03f0f2ee757cc1256402003fb6d2 (last accessed on 25 august 2019). 63 “le gouvernement de la république française déclare qu’il appliquera les dispositions du paragraphe 8 de l’article 51 dans la mesure ou l’interprétation de celles-ci ne fait pas obstacle a l’emploi, conformément au droit international, des moyens qu’il estimerait indispensables pour protéger sa population civile de violations graves, manifestes et délibérées des conventions de genève et du protocole par l’ennemi. available at: https://ihl-databases.icrc.org/applic/ ihl/ihl.nsf/notification.xsp?action=opendocument&documentid=d8041036b40ebc44c1256a34004897b2 (last accessed on 25 august 2019). 64 https://treaties.un.org/pages/showmtdsgdetails.aspx?src=untsonline&tabid=2&mtdsg_no=xviii 10&chapter=18&lang=en#14 (last accessed on 3 march 2020). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 147 julia kapelańska-pręgowska reservations are compatible with the object and purpose of the 1977 additional protocol i that is aimed to protect victims of international armed conflicts, and to protect the natural environment from the consequences of such conflicts.65 purposive approach to treaty interpretation focuses on the spirit of the law and is related to the principle of effectiveness.66 a general exclusion of nuclear weapons from the scope of the protocol, as well as reservations that justify their use in some circumstances, are in conflict with article 1(1) of the protocol where „high contracting parties undertake to respect and to ensure respect for this protocol in all circumstances”. the question of whether the war concerned is “just” or “unjust”, one of aggression or of self-defence, should not affect the application of the protocol.67 moreover, reciprocity invoked as an argument not to fulfil the obligations of humanitarian law is prohibited and this prohibition is absolute.68 therefore, statements by the nuclear states that they would use nuclear weapons only in „extreme situations”, or if attacked with the same weapon, cannot be reconciled with the object and purpose of the protocol. this standpoint is reinforced by the wording of the protocol’s preamble. apart from the harm to the civilian population and objects, a nuclear attack would certainly be disastrous to the natural environment. the study conducted by the international committee of the red cross indicated that there is a customary norm that methods of warfare causing ‘widespread, long-term and severe’ damage to the natural environment is prohibited.69 the threshold criteria for violation of article i of the enmod convention are either ‘widespread, long-lasting or severe’.70 the same prohibitions are listed in articles 35(3) and 55 of the additional protocol i.71 these three criteria were also reflected in the rome statute of the international criminal court.72 it may reasonably be expected and assumed that the use of nuclear weapons will cause widespread, long-term, and severe damage to the natural environment and —in consequence— will “prejudice the health or survival of the population”. it seems to be 65 koppe, supra note, p. 256. 66 richard gardiner, treaty interpretation, 2nd edn (2015) pp. 211-222. 67 see a commentary of 1987 to the protocol i, para 48. available at: https://ihl-databases.icrc.org/applic/ihl/ ihl.nsf/comment.xsp?action=opendocument&documentid=7125d4cbd57a70ddc12563cd0042f793 (last accessed on 3 march 2020). 68 ibid, paras 49-51. 69 jean-marie henckaerts, “study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict” 87 (857) international review of the red cross (2005) p. 202. 70 convention on the prohibition of military or any other hostile use of environmental modification techniques, new york, 10 december 1976, united nations, treaty series , vol. 1108, p. 151. 71 protection of the natural environment is regulated in article 55(1): “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. this protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. 72 united nations, treaty series, vol. 2187, p. 3. intentionally launching an attack in the knowledge that such attack will cause […] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated is listed in article 8(b)(iv) as a war crime. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 148 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach beyond dispute that the damage caused by nuclear weapons exceeds the threshold set up by the protocol and their use cannot be justified by military necessity. such a standpoint has, however, not been presented by the icj in the 1996 advisory opinion. the court had —in a rather general manner— observed that “states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives” and that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”.73 the icj thus found that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in the armed conflict.74 it further acknowledged the existence of the “general obligation of states to ensure that activities within their jurisdiction or control respect the environment of other states or of areas beyond national control” that has become “a part of the corpus of international law relating to the environment”.75 the duty to protect the natural environment against widespread, long-term and severe damage has been acknowledged in the draft principles on the protection of the environment in relation to armed conflict provisionally adopted by the ilc drafting committee on first reading.76 additionally, the applicability of the principles and rules on distinction and precautions in attack, to the natural environment,77 in fact preclude the use of nuclear weapons. 4. international human rights law perspective although the use of nuclear weapons is most often discussed in the light of international humanitarian law, international human rights law is directly relevant as well. moreover, the human rights regime adds new arguments against the legality of nuclear weapons, strengthens protection afforded to civilians and combatants, and offers a number of implementation mechanisms.78 in other words, even if it were possible to find situations of a limited use of nuclear weapons not in violation of the ihl, human rights standards would apply (also extraterritorially and during armed conflict, albeit with some limitations)79 and would provide arguments for the illegality of such weapons. 73 nuclear weapons advisory opinion, supra note, para. 30. 74 ibid., para. 33. 75 ibid., para. 29. 76 draft principle 13 [ii-1, 9], ilc, draft principles on the protection of the environment in relation to armed conflict, 06.06.2019, a/cn.4/l.937, available at: http://legal.un.org/docs/?symbol=a/cn.4/l.937 (last accessed 17 july 2019). 77 ibid., draft principle 14 [ii-2, 10]. 78 regarding the interrelation between the ihl and ihrl see further stuart casey-maslen, “the use of nuclear weapons and human rights” 97(899) international review of the red cross (2015) pp. 663-680. the author praises the ihrl concluding that “the degree of care with regard to human life that human rights law demands in police or military operations for law enforcement significantly exceeds that which is required by the prevailing rules of ihl governing the conduct of hostilities” (p. 680). 79 a question of the application of the human rights treaties in the situation of armed conflict, as well as the issues of jurisdiction will not be developed here. for this purpose see, inter alia: louise doswald-beck, the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 149 julia kapelańska-pręgowska because of the indiscriminate character of nuclear weapons, their use would almost certainly entail an arbitrary (not limited to intentional) deprivation of life of civilians.80 the prohibition of arbitrary deprivation of life is one of the fundamental human rights and it is non-derogable under the ihrl.81 even though the peremptory status of the aforementioned prohibition remains a subject of scholarly discussions,82 this fact does not necessarily prejudge a question if the persistent objector rule is applicable. as pointed out elsewhere in the article, a broader catalogue of norms may be considered to determine the limits of the persistent objector rule. the threat to the right to life stemming from nuclear weapons is however not limited to the time of an armed conflict. as rightly observed by the human rights committee (hrc): “this threat is compounded by the danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure”.83 the hrc even suggested that the production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity.84 in october 2018, the human rights committee adopted a new general comment no. 36 (2018) on article 6 of the international covenant on civil and political rights (iccpr), on the right to life, which reaffirms that the threat or use of nuclear weapons is incompatible with the right to life and may amount to a crime under international law.85 it is worth acknowledging that the comment also addresses the obligation to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament that was raised before the icj by the marshall islands and has remained undetermined. the new general comment thus gives the states parties to the covenant clear-cut and comprehensive guidelines regarding their obligations and the implementation of the iccpr. its practical impact though remains uncertain, as not all of the nuclear “human rights and nuclear weapons”, in nystuen et al., supra note; vera gowlland-debbas and gloria gaggioli, “the relationship between international human rights and humanitarian law: and overview”, in robert kolb and gloria gaggioli (eds.), research handbook on human rights and humanitarian law (2013), pp. 77-103; robert k. goldman, “extraterritorial application of the human rights to life and personal liberty, including habeas corpus, during situations of armed conflict”, in idem, pp. 104-124. 80 as clearly pointed out in the un human rights committee, ccpr general comment no. 14: article 6 (right to life) nuclear weapons and the right to life, 9 november 1984, available at: https://www. refworld.org/docid/453883f911.html (last accessed on 1 august 2019): “it is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today” (para. 4). 81 antonio cassese, “a plea for a global community grounded in a core of human rights”, in a. cassese (ed.), realizing utopia. the future of international law (2012) p. 139. 82 prohibition of arbitrary deprivation of life has been listed as jus cogens by the hrc see: un human rights committee, ccpr general comment no. 24: issues relating to reservations made upon ratification or accession to the covenant or the optional protocols thereto, or in relation to declarations under article 41 of the covenant, 4 november 1994, ccpr/c/21/rev.1/add.6, para. 10. see also dissenting opinion of judge antônio augusto cançado trindade (para. 180 of the opinion) to obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament (marshall islands v. india), jurisdiction and admissibility, judgment, i.c.j. reports 2016, p. 255. 83 hrc, gc no. 14, supra note, para. 4. 84 ibid., para. 6. 85 see para. 66. text of the general comment available at: https://tbinternet.ohchr.org/treaties/ccpr/ shared%20documents/1_global/ccpr_c_gc_36_8785_e.pdf (last accessed on 2 september 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 150 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach armed states and their allies under extended nuclear deterrence doctrines are parties to the covenant. moreover, even some states parties presented negative comments towards the document and argued, inter alia, that the issue of the regulation of weapons (including wmd), fell beyond the competence of the human rights committee.86 the uk stated that it disagreed with the view that the threat or use of nuclear weapons are incompatible with respect for the right to life and may amount to a crime under international law. at the same time the uk acknowledged that “the indiscriminate use of nuclear weapons is incompatible with article 6 of the covenant”.87 it is nevertheless difficult to imagine indiscriminate use of nuclear weapons as indicated earlier in this conference paper. france, on the other hand, adopted a different standpoint, and argued that the application of the right to life during armed conflict is governed by the ihl that does not categorically prohibit the threat or use of nuclear weapons.88 while it is true that ihl does not explicitly prohibit the use of nuclear weapons, it has been argued above that it would be incompatible with its fundamental rules and principles. moreover, the norms which best protect are the ones which apply, be they of ihl or of the ilhr. even if the use of a nuclear weapon did not result in an immediate loss of civilian life, it may be argued that long-term consequences from radiation etc. would be in violation of the prohibition of torture, or inhuman or degrading treatment. taking into account that this norm is commonly regarded as jus cogens,89 absolute90 and non-derogable, the obligations of states to respect it are particularly strict.91 the use of nuclear weapons is inhuman 86 observations of the united states of america on the human rights committee’s draft general comment no. 36 on article 6 right to life, october 6, 2017, available at: https://www.state.gov/wp-content/ uploads/2019/05/u.s.-observations-on-draft-general-comment-no.-36-on-article-6-right-to-life-.pdf (last accessed on 13 august 2019). 87 human rights committee draft general comment no. 36 on article 6 of the international covenant on civil and political rights, on the right to life. comments of the government of the united kingdom of great britain and northern ireland, available at: https://www.ohchr.org/documents/hrbodies/ccpr/ gcarticle6/unitedkingdom.pdf (last accessed on 12 august 2019). 88 commentaires du gouvernement français à propos du projet d’observation générale n° 36 sur l’article 6 du pacte international relatif aux droits civils et politiques, concernant le droit à la vie, available at: https:// www.ohchr.org (last accessed on 12 august 2019). 89 questions relating to the obligation to prosecute or extradite (belgium v. senegal), i.c.j. reports 2012, p. 422, para. 99; hrc, gc no. 24, supra note; hrc, general comment no. 29: derogations during a state of emergency, un doc. hri/gen/1/rev.7 (2004), p. 184; al-adsani v. the united kingdom, echr judgment 21.11.2001 [gc], appl. no. 35763/97; erica de wet, “the prohibition of torture as an international norm of jus cogens and its implications for national and customary law”, 15(1) european journal of international law (2004) pp. 97-121. 90 regarding its absolute character see an interesting discussion: steven greer, “should police threats to torture suspects always be severely punished? reflections on the gafgen case”, 11 human rights law review (2011) pp.67-89; stijn smet, “conflicts between absolute rights: a reply to steven greer”, 13 human rights law review (2013) pp. 469-498; steven greer, “is the prohibition against torture and cruel, inhuman and degrading treatment really ‚absolute’ in international human rights law?”, 15 human rights law review (2015) pp. 101-137; natasa mavronicola, “is the prohibition against torture and cruel, inhuman and degrading treatment absolute in international human rights law? a reply to steven greer”, 17 human rights law review (2017) pp. 479-498. 91 hrc, general comment no. 23, un doc. ccpr/c/21/rev.1/add.6, para. 10. see also hrc, general comment no. 29, un doc. ccpr/c/21/rev.1/add.11, para. 11. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 151 julia kapelańska-pręgowska because —as a weapon of mass destruction— it is intrinsically indiscriminate and would cause severe and durable damage to the environment in which we live. interdependence between the condition of the natural environment and the well-being of the human person (defined as a state when an individual is able to enjoy its human rights)92 has been widely acknowledged by the un,93 international courts,94 and in legal scholarship.95 apart from the strictly individual perspective (that is the one concentrated on the rights and freedoms of a direct victim), ihrl makes it possible to adopt a wider approach and take into account the concept of a potential victim96 and of collective rights (including the rights of future generations). the former concept would be problematic and not very helpful in practice, as “potentiality” has been interpreted rather restrictively.97 more potential seems to lie in linking the harm to the natural environment with human wellbeing and the health of current and future generations.98 nuclear weapon consequences are potentially dangerous to all humankind, and thus a matter of concern of all states and of the international community as a whole.99 the global and systemic relationship between the consequences of the use of nuclear weapons for health, the environment infrastructure, food security, climate, development, social cohesion, displacement, and the global economy was acknowledged by the unga100 and expressed in the tpnw preamble. environmental issues were invoked by the marshall islands which filed complaints against india, pakistan, and the uk to the icj, regarding an obligation to pursue in good faith and to conclude negotiations leading to nuclear disarmament. complaints were based on the provisions of the npt (especially its article vi), as well as on the customary 92 as observed by judge christopher weeramantry in his separate opinion to gabčíkovo-nagymaros project (hungary/slovakia), judgment, i.c.j. reports 1997, p. 7. see para. 91 of the opinion: “protection of the environment in international law is a sine qua non for numerous human rights such as the right to health and the right to life itself ”. 93 see un initiatives in this respect presented in: bertrand g. ramcharan, united nations protection of humanity and its habitat. a new international law of security and protection, (2016) pp. 154-162. 94 evadne grant, “international courts and environmental human rights: re-imagining adjudicative paradigms”, in a. grear, l. j. kotze (eds.), research handbook on human rights and the environment (2015), pp. 379-400. 95 dinah shelton, “human rights, environmental rights, and the right to the environment”, 28 stanford journal of international law (1991), pp. 103-117; alan boyle, “the role of international human rights law in the protection of the environment”, in a. boyle, m. anderson (eds.), human rights approaches to environmental protection (1998) pp. 49-57. 96 see cançado trindade, supra note, para. 222. 97 coe/echr, directorate of the jurisconsult, practical guide on admissibility criteria (2019) p. 13, available at: https://www.echr.coe.int/documents/admissibility_guide_eng.pdf (last accessed 23 august 2019). 98 tpnw, preamble. see also legality of the threat or use of nuclear weapons, advisory opinion, i.c.j. reports 1996, p. 226, para. 29, where the court recognised “that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn”. 99 see cançado trindade, supra note, paras 216-220. 100 resolution 70/48 humanitarian pledge for the prohibition and elimination of nuclear weapons, 11.12.2015. the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 152 freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach international law.101 in the complaints, the very serious consequences for human health and the natural environment caused by nuclear tests were raised.102 a question that emerges with regard to the natural environment, human rights relationship, is whether individuals could file complaints to the human rights protection organs (and possibly be awarded a just satisfaction) based on the harm to the environment caused by nuclear weapons.103 prima facie, it seems that such complaints could be regarded as admissible ratione materiae and ratione personae. so far only one complaint has dealt with nuclear tests (in this particular case the tests were conducted in the south pacific).104 hrc regarded the complaint inadmissible ratione personae because the applicants did not manage to prove their victim status in connection with the environmental damage. however, it cannot be excluded that if in the future, in similar cases, the applicants were able to present convincing scientific arguments and prove their status as victims of a specific environmental harm, human rights organs would look into the merits of the case and declare a violation. such application would nevertheless be very complex and other problems could arise, especially the admissibility ratione loci, the criterion of effective control and the issue of extraterritorial application of human rights treaties (if the case were to deal with the responsibility for territories not within the jurisdiction of the respondent state). 5. conclusions the practice of nuclear weapons states towards the testing of nuclear weapons and their use has not changed much in the decades since the cold war. it may be anticipated that nuclear disarmament will not be continued if the “will” of states prevails over humanitarian and environmental considerations. the long awaited adoption of the treaty on the prohibition of nuclear weapons did reaffirm the fundamental importance of the humanitarian perspective with regard to nuclear weapons, however the treaty will most probably not become binding for all un members (especially not for the nuclear weapon states). even though its adoption should also be perceived as a significant step towards the crystallization of a customary obligation of nuclear disarmament, the problem of persistent objectors remains. hence, prospects for the universal abolition of nuclear weapons are 101 obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament, marshall islands v. india, preliminary objections, i.c.j. gl no 158, 05.10.2016. 102 “the marshall islands has a unique and devastating history with nuclear weapons. while it was designated as a trust territory by the united nations, no fewer than 67 atomic and thermonuclear weapons were deliberately exploded as ‘tests’ in the marshall islands, by the united states. […] several islands in my country were vaporized and others are estimated to remain uninhabitable for thousands of years. many, many marshallese died, suffered birth defects never before seen and battled cancers resulting from the contamination. tragically the marshall islands thus bears eyewitness to the horrific and indiscriminate lethal capacity of these weapons, and the intergenerational and continuing effects that they perpetuate even 60 years later. one ‘test’ in particular, called the ‘bravo’ test [in march 1954], was one thousand times stronger than the bombs dropped on hiroshima and nagasaki” see icj, doc. cr 2016/1, of 07.03.2016, p. 16, paras. 4-5. 103 see further discussion in stuart casey-maslen, “the right to a remedy and reparation of the use of nuclear weapons”, in nystuen et al., supra note, pp. 461-480. 104 vaihere bordes and mr. john temeharo v. france, communication no. 645/1995, inadmissibility decision of 22 july 1996, available at https://www.ohchr.org/documents/publications/sdecisionsvol6en. pdf. (last accessed 4 august 2019). the age of human rights journal, 14 (june 2020) pp. 137-153 issn: 2340-9592 doi: 10.17561/tahrj.v14.5481 153 julia kapelańska-pręgowska rather weak. it is also unrealistic to rely on the “morality” of states and their resignation from the policy of deterrence which aims to protect national interests and sovereignty.105 it is therefore justified to turn to the arguments based on the ihl and ihrl to support the general prohibition of nuclear weapons. the answer to the provocative question put in the title of this contribution is naturally negative: there is no freedom from nuclear tests and nuclear weapons in the catalogue of human rights. in the article some arguments were presented in support of the view that nuclear weapons cannot be used consistently with ihr and ihrl. it is a somewhat idealistic106 conclusion, and some might say that it does not take into account the realpolitik considerations.107 while that is true to some extent, it does not mean that this perspective is to be abandoned, especially because the ihrl provides still underestimated mechanisms and arguments against the use (and threat of use) of nuclear weapons. received: october 22nd 2019 accepted: february 12th 2020 105 michael j. glennon, “pre-empting proliferation: international law, morality, and nuclear weapons”, 24(1) the european journal of international law (2013) pp. 109–127. 106 the interplay between idealism and realism in human rights, as very well reflected in different contexts in: christian tomuschat, human rights. between idealism and realism (2003) passim. 107 for a state-centred and international relations-centred analysis of the topical problem see michael quinlan, thinking about nuclear weapons: principles problems, prospects (2009) passim. quinlan presents the policy of deterrence in a great detail and argues, inter alia, that nuclear weapons have made major armed conflict between advanced states almost impossible, and that this fact is an inestimable benefit to humanity which should not be overlooked. freedom from nuclear weapons? ihrl and ihl perspective vs the state-centred approach abstract keywords summary 1. introduction 2. nuclear weapons in international law from disarmament to prohibition 3. international humanitarian law perspective 4. international human rights law perspective 5. conclusions the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 263 the right to food between the justiciability and the public sphere héctor silveira1 abstract: basic food must be guaranteed by states as a fundamental right of all people. in this article we defend the hypothesis that the path of justiciability is insufficient to achieve full recognition of the right to food as a fundamental social right. a strong and active public sphere is needed to address the obstacles to this recognition today. some of them are actually related to the inherited legal culture. and, on the other hand, that promotes the creation of new institutions to guarantee social rights. the constitutional state needs a “fourth estate” that guarantees fundamental rights and protects the common good from private powers. keywords: public sphere, fundamental good, right to food, fourth power, democracy, guarantees, fundamental rights. summary: 1. food as a “fundamental good” 2. guaranteeing the right to food 3. obstacles to the recognition of the right to food a) the neoliberal thought b) the legacy legal culture d) subjective rights of the individual and the affected e) rights and justiciability: an inadequate defence strategy 3. a public sphere that promotes and protects the right to food a) a weak political community, which lacks public participation and does not safeguard the common good 4. a public sphere wich influences the role of the constitutional state: the need for a “fourth power”. 1. food as a “fundamental good” in the debate on the constitutional state, the italian jurist luigi ferrajoli defends the introduction in the legal lexicon of a new category of goods: the “fundamentals” (ferrajoli 2014, 207; 2019). this new legal category would be composed of all those goods that are vital, indispensable, for life, such as water, air, lifesaving drugs, the oceans, the organs that make up the body human, and the basics foods. ferrajoli proposes to divide them in three subgroups: a) common goods, the old res communes omnium, such as water, air and the environment, access to and the use of which is vital for all people and which therefore are the subject of fundamental law concerning freedom of use or enjoyment; b) non-transferable personal goods, such as the parts of the human body, that are the subject of fundamental rights of bodily integrity: freedom from lesions or violation; and c) social goods, such as life-saving or “essential” drugs or basic food and water, and as such the subject of fundamental social rights to health and subsistence (ferrajoli 2011, 733-734; 2014, 213-214). 1 associate professor sh, university of barcelona, spain (hsilveira@ub.edu). the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 264 in the guaranteest constitutional state model that ferrajoli proposes, these goods come under the protection of the so-called “sphere of the undecidable”2. as indispensable goods for human life, they must be placed outside the realm of action of the powers, publics and privates (ferrajoli 2014, 213). the right to food is recognised in international law as a human right, in the sense that everyone should be able to have “physical and economic access at all times to adequate food or means for its procurement” (cescr gc12). in the words of olivier de schutter, the right to food is: “the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear”3 this requires ensuring that all people can feed themselves with food that is available—and therefore that there is sufficient produce for the whole of the population—accessible—so, every household must have sufficient means to obtain or produce the food they require— and in addition, adequate, in the sense that the food must be suitable to satisfy the needs of each person, taking into account their age, living conditions, health, occupation, sex, culture, etc. the right to food is a transversal right without which it is impossible to understand the concepts of person and of citizen. the human condition depends on every person having available to them and being able to access basic sustenance. only once this access to food is guaranteed can we talk of the possibility of exercising full citizenship (rodotà 2012, 130). this right cannot be understood unless other principles and rights provided under a constitutional state are also respected such as, for example: respect for the dignity of the person and cultural diversity, the principle of not discriminating unfairly, the right to free personal development, autonomy, integrity and the inviolability of the person, and the principles of cooperation and decency. 2. guaranteeing the right to food the obligations of the states that are party to the international covenant on economic, social and cultural rights (icescr) to guarantee the right to adequate food are clearly defined in international law. these obligations are both general and specific4. general obligations, such as guaranteeing the right to food and water, are exercised 2 this sphere is in turn subdivided into two others: the “sphere of the undecidable that is”, consisting of the rights to freedom and autonomy, which cannot be modified; and the “sphere of the undecidable that is not”, formed by the set of social rights and which, in contrast to the former, must obligatorily be guaranteed and fulfilled by public authorities (ferrajoli 2014, 54). 3 de schutter, olivier (un special rapporteur 2008-2014), (15-10-2020), http://www.srfood.org/es/derechoa-la-alimentacion 4 on this issue, see golay (2009). héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 265 without discrimination, equally for all men and women, and require states to adopt measures by all means necessary to realise the right to food such as, for example, through legislation or acting in order to bring about the full effectiveness of the the right to food, making maximum use of the resources available (arts. 2, 3 icescr). “violations of the covenant occur when a state fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger.” (cescr, general observation 12, paragraph 17). meanwhile, the specific obligations consist of respecting, protecting and ensuring observance of the right to food. respecting, in the sense that public authorities must not arbitrarily deprive people of the the right to food, or hinder access to food5. protecting requires states to regulate companies, social organisations or people who may threaten the right of others to adequate food and water6. finally, ensuring observance of the the right to food, requires states to mobilise all their available resources to guarantee in a progressive fashion the full realisability of this right, particularly through drawing up new legislation. specifically, the obligations that apply to states must initially be enacted through the adoption of measures that allow people to feed themselves via their own means. this requires providing the necessary facilities for people to enjoy the right to food. in second place, the states themselves must fulfil the right to food of all those who cannot feed themselves—children, the unemployed, the aged, etc.—whether through the distribution of food or implementation of social aid programmes7. in international law the right to food has seen important advances in terms of specification, to the point where secondary instruments of guarantee have been created. for example, the optional protocol of the icescr, approved in 2008 and in force since 5th may 2013, opens the way for people to report infractions of their economic, social and cultural rights. states must therefore guarantee that all individuals can feed themselves. to this end, basic food must be available, accessible and adequate. despite its recognition in international law, the main challenge for the right to food is to ensure that states also recognize it as a fundamental social right. but there are a number of obstacles against this. 3. obstacles to the recognition of the right to food a) the neoliberal thought the hegemony of neoliberalism in the governing institutions of western countries in recent decades has become a checkpoint for the recognition of the right to food to be considered as a fundamental right. this is because for neoliberalism food must be treated as a commodity like any other. they should be part of the patrimonial goods, available, appropriable and tradeable, just like other goods, until now considered “common goods”, 5 comisión, el derecho a la alimentación. informe del relator especial, jean ziegler, (16 de marzo 2006), doc nue/cn 4/2006/ 44, párrafo 22. 6 directrices de maastricht relativas a las violaciones de los derechos económicos, sociales y culturales, párrafo 18. 7 comité de derechos económicos, sociales y culturales, observación general 12. the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 266 such as water, air, oceans and forests. likewise, the attempt to make basic foodstuffs the object of protection of a new social right clashes with the neoliberal tendency to privatize social rights and to reduce to a minimum everything that has to do with the public. b) the legacy legal culture inherited legal culture is another important obstacle when theorizing as fundamental rights and freedoms acts and decisions which are the expression of private powers. one of the foundations of the legacy legal culture is the 1789 declaration of the rights of man and of the citizen, written by the french constituent assembly in order to tackle the extremely stratified society of the period, with its inequalities and feudal privileges. more to the point, in relation to the subject we are considering here, is the fact that the declaration signified the triumph of the non-egalitarian liberal sector over the more democratic plebeianleaning jacobin wing in the revolutionary process in france (silveira 2017a). through the call for “fraternity”, the jacobins intended to promote a programme of republican political economy with the objective of allowing citizens to be genuinely self-sufficient and economically independent so that they could, at the same time, be active, free and equal citizens. the jacobins had no concept of a life of freedom without each individual necessarily being self-sufficient in terms of their own individual existence8. the republic, as antonio domènech writes when he summarises the ideas of robespierre, “must ensure the ‘means of existence’ for all; everyone must have sufficient property for them not to need to ask permission of anyone else in order to be able to subsist” (2004, 82).9 the republican project of fraternity advocated a civil society in which everyone had their “right to existence” assured. democracy was understood as “fraternity”, in the sense that it was necessary to achieve a civil society, “that not only incorporated everybody, but in which everybody was also fully and reciprocally free, that is, equal in the old republican sense of the word” (domènech 2004, 91-92)10. therefore, we could say that the jacobin political project already contemplated the right to food and water as a right that the community—the republic—should guarantee, precisely so that the community itself could count on the political participation of all citizens11. after the thermidorian reaction, however, a philosophy which was entirely contrary to this project of fraternal democracy took root and a republic of mere owners was established, in which the (unlimited) right to property was recognised, together with economic freedom and non-universal censusbased democracy. from that moment, private property was consecrated as a “sacred and inviolable right”, of which nobody “can be deprived” (art. xvii of the declaration). 8 jefferson, for example, dreamt of a society based on small agricultural properties; robespierre suggested a social right to existence guaranteed by the public authorities; and paine wanted material income assigned unconditionally to all citizens, merely as a result of being such (domènech 2013, 20). 9 “what is the first goal of society? to uphold the indefeasible rights of man. what is the first of those rights? the right to exist. so, the first social law is that which ensures the means to exist for all members of society; all the others are subordinate to this: property has only been instituted and guaranteed as the foundation of that law” (translated from domènech 2004, 82). 10 the anti-jacobin coup of 9th thermidor 1794 put an end to this goal of “universal fraternal democracy” propounded by the jacobin republicans (domènech 2004, 92). 11 during the period of jacobin democracy, from 10th august 1792 to 27th july 1794 (9th termidor 1794), the universal right to existence was recognised and full male suffrage was achieved. héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 267 in the bourgeois democracy of ownership another very clear dividing line is imposed, a real chasm, between the realm in which the private powers act, governed by the principle of free choice, and the sphere in which the public authorities act. in the following decades, throughout the 19th century, the liberal legal doctrine saw to it that this construct was consolidated, defining civil rights of freedom of choice as personal liberties, to be used in the private sphere, both by individual people and legal entities, to strike deals and do business (ferrajoli 2014, 171-172). in this way, however, the doctrine hides or diminishes the importance of the “normative effects” that private powers produce in the legal sphere of other subjects, affecting the rights, liberties and interests of other people. civil rights, which belong in the private sphere, are one thing and very different from the freedoms of people (ferrajoli 2014, 52-53). c) subjective rights of the individual and the affected in addition to this doctrinal doublespeak, we also have to consider two further elements that hinder recognition of fundamental goods within the category of fundamental rights. these are: a) the strictly individualist structure of right, they are constructed as subjective rights of the individual; b) and the fact that the legal procedures are predicated on the idea that it has to be the individual, the subject who is affected, who takes the initiative and sets in motion the principle of “cause of action” to defend their own interests and rights. but what happens if the goods in question belong to all or, to express it more clearly, they do not belong to anyone in particular? who is going to take responsibility if there is no deprivation of a particular right or interest, but rather a deprivation of or non-compliance with a vital right or interest which belongs to everyone and on which, paradoxically, our other rights and interests depend? is the legal architecture created under the modern rule of law sufficient to safeguard interests that correspond to us all? for ferrajoli, the answer is that “the syntax of fundamental rights attributed to individual people as a guarantee of their personal needs and expectations, is not sufficient on its own”. in order to achieve effective and complete guardianship of fundamental goods, it is necessary to move beyond the legal structure of individual subjective rights and broaden the principle of “cause of action” to other actors and institutions in the public sphere. in recent years the right to food is gradually being recognised as a subjective right of the individual. in their constitutions, countries such as bolivia, ecuador, south africa, nicaragua and colombia explicitly recognise the right to food and water as an individual human right of all people. other countries explicitly include this right in the recognition of the human right to a decent standard of living or the right to personal development, which includes necessarily food, such as for example, in belarus, moldavia and malawi. still others recognise it as a governing principle of state policy, such as nigeria and sri lanka; or they do so as a consequence of the ratification of international and regional treaties, as in the case of uruguay; or as a consequence of the recognition of this right via by-laws, as in the case of the dominican republic. furthermore, international organisations, such as the committee for economic, social and cultural rights (cescr), urge states to meet the principle of justiciability in relation to those rights enshrined in the international covenant on economic, social and cultural rights (icescr). the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 268 for its part, the cescr encourages states to enact laws that allow the justiciability of the rights in the covenant12. for example, it has requested that colombia ratify the optional protocol of the icescr, meets fully its obligations under the covenant and fosters full recognition and enjoyment of the rights contained therein, in its application of the 2030 agenda for sustainable development in the national action plan. similarly, it has reiterated to the dominican republic, in its fourth report, the need for the state to promote the applicability of all the rights enshrined in the covenant at all levels of the legal system. the report says that the committee has taken note of article 74 of their constitution but reminds them that the covenant also ranks as constitutional and is directly applicable. it goes on to lament the fact that no information has been provided on cases of jurisprudence in which the rights in the covenant have been invoked or directly applied by the national courts13. likewise, in relation to uruguay, the cescr expresses concern about the justiciability of the covenant, despite the fact that in this country the rights in the covenant are directly applicable14. enacting and further developing the principle of justiciability is important in order to guarantee the right to food and, therefore, the cescr must urge states to respect and abide by this principle. to this end, and also taking into account both the legal limits and the legal culture, an important step to guarantee compliance with the right to food on the part of both public and private authorities would be its constitutional recognition as an individual or fundamental right15. that said, however, the justiciability route to individual rights, despite their importance and the central role they play in the functioning of the rule of law, has the disadvantage of being a defence strategy and one perceived mainly as the recourse of individuals. d) rights and justiciability: an inadequate defence strategy generally in judicial procedures, the party who brings the legal action is the holder of a personal entitlement which has been interfered with. however, the holders of rights are not always in the best position to exercise their own fundamental rights; often due to not enjoying the economic conditions necessary to do so. moreover, as a consequence, such individuals are in an even worse position when it comes to setting in motion actions to demand compliance with rights that protect goods that are not merely their own but 12 on the relation between the cescr and some of the signature states, see silveira et al. (2018). 13 in this way, it recommends that the state adopt the necessary measures to guarantee that all judicial decisions pay due respect to human rights, including economic, social and cultural rights, and to amend the effects of the sentences tc/0168/13 and tc/0256/14 of the constitutional court. the committee indicates that the state should take note of its general observation (1998) on the internal national application of the covenant (6). finally, it once again recommends, as in the previous report, that the state ratify the optional protocol of the covenant (68). 14 however, these rights are still scarcely visible and the committee is concerned that certain ambiguities of the regulatory framework that affect processes of public interest make it difficult to demand these rights in the judicial setting. in this respect, the committee recommends that the state take the necessary measures to guarantee the direct applicability of all the rights in the covenant and it urges the state to pay attention to the committee’s general observation no. 9 (1998) on the internal national application of the covenant (8) (final observations, from the fifth report, of 20th july 2017 (e/c.12/ury/co/5). 15 in this regard, see medina (2018) and martín (2016). héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 269 belong to everybody in general and to nobody in particular. this is where it becomes clear that, as ferrajoli writes, the individualist model of rights as presented in the modern constitutional states is highly inadequate and insufficient to “ensure observance of the bonds imposed on the public sphere by social rights, fundamental goods and collective interests stipulated in the constitution” (2014, 227). it is true, as rodotà says us, that rights model and configure democracy. it is also true, however, that without a truly democratic policy and without a solid and active public sphere, rights can easily fail to be worth the paper they are written on when left in the hands of those who have the power to take decisions over the lives of others; such as, for example, powers held by the private sphere. that is why, in addition to the call for new rights, we also need to demand that the political sphere really attends to the material needs of the people. to do so, it must genuinely face up to the private economic powers which, in addition to influencing and affecting people’s lives in far-reaching ways, are not required to respect and safeguard fundamental rights or the common good, or at least not to the same extent as public authorities are obliged to. there should therefore emerge, as rodotà calls for, a new politics that breaks through the armour-plating of the current political model and opens up a process of creation of new rights that grow from the grassroots of society upwards; and not from the top down, as happens at present (rodotà 2012, 103104). similarly, for marramao, the hegemony of the neoliberal social and political project must be fought with a normative model of democracy that moves beyond the current liberal model, that is, through the construction of a public sphere that is not colonised by the institutions of representative democracy (marramao 2011, 4). all of this suggests that the defence of fundamental goods cannot be entrusted to the guarantee mechanisms constructed to date as part of the current constitutional states. those mechanisms, as i have said, are generally only activated as a result of the actions of individuals who are directly affected by an interference with their personal rights. the route of justiciability of fundamental rights, and especially of economic, social and cultural rights, must necessarily be reinforced and complemented by new instruments of protection from within the public sphere16. respecting and realising the right to food entails, as i have also said, guaranteeing access to food and ensuring a fair and just distribution of basic food to all the people who need it. but for that to happen, in addition to having available to them the legal instruments to claim their rights, the people affected must also have the support of a public sphere that takes responsibility for observance of this right. and that public sphere must have the powers and means necessary to demand fulfilment of the right 16 by the public sphere we understand that space in social life where the rights and interests of all are at stake, and the consequent duties that we all have with respect to all others (absolute duties or erga omnes). this notion of the public sphere has little to do with that used by habermas to refer to a space for public communication, debate and conflicts of opinion. habermas conceives of the public political sphere as an “intermediary system of communication” between, on the one hand, public opinion formed from civil society and, on the other, the deliberations and negotiations of the political system (habermas 2009, 159). the public sphere is where public opinion is formed which, at the same time, becomes political force (fraser 2008, 146). in contrast, for ferrajoli, the public sphere exists in opposition to the private sphere, where the principle of freedom of choice rules and legal entities make use of their civil rights while having their goods at their disposal (ferrajoli 2011, 758 762). the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 270 to food by both public and private entities. it is the public sphere which, under the rule of law, should also establish the limits and obligations to be borne by the private sphere, with the goal of protecting the general interest and fundamental rights and, in particular, in order to protect the weakest members of society17. in this public sphere a major role is played by the three branches of power: legislature, executive and judiciary. what is more, today the public sphere is greater than the state sphere and we constantly encounter more multi-state institutions and guidelines that intervene in the protection of the common good and human rights (the un, the cescr, the human rights council, the fao, the who, unicef, etc.). 4. a public sphere that promotes and protects the right to food the formation of a solid public sphere empowered with the instruments necessary to protect fundamental goods and the general interest represents an important challenge for current constitutional states. and it is so because here we must also confront another of the strong postulates of liberal thought: a weak political community. a) a weak political community, which lacks public participation and does not safeguard the common good in liberal political ideology the representative democracy is not necessary to have a strong democratic political community and equipped with instruments with which to govern and power over the common good (barcellona 1992, 107). the political institutions were designed within a liberal state where the rule of law ensured, in the first place, that public participation was not necessary for the functioning of the state and, in the second place, that public decisions did not have to impose on the life of the citizens ovejero n.d. 3)18. the rule of law in european countries was built upon the preconceived idea that public institutions have to remain neutral when faced with progressive ideas emanating from civil society19. 17 an example of a limit and obligation imposed from the public sphere is section 51.1 of the spanish constitution which establishes that “the public authorities shall guarantee the protection of consumers and users and shall, by means of effective measures, safeguard their safety, health and legitimate economic interests”. in this way: “free enterprise is recognised within the framework of a market economy” (ibid. section 38) and is limited by respect for the safety and health of consumers. food safety is established together with a limit on the freedom of enterprise, in the sense that private economic initiatives cannot harm the dignity, safety, freedom or cultural diversity of the people (rodotà 2012, 128). 18 the model of liberal democracy, crouch writes, is characterised by: a) only being concerned with organising participative elections; b) giving considerable freedom to pressure groups so that they can go about their activities; and c) prohibiting the public sphere and the political system from interfering in the rationale behind the functioning of the economy (crouch 2004, 35, 146). 19 a current example of the limits of intervention by public authorities when facing the problems of society can be found in art. 34.3 of the charter of fundamental rights of the european union where it is said that “in order to combat social exclusion and poverty, the union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources …”. when dealing with the issue of poverty and social exclusion, the eu has the audacity to say that it recognises the right to social and housing assistance: it only recognises a right to assistance! and that in an unequal society where groups of people do not have their basic needs guaranteed and live in poverty. héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 271 this neutrality and lack of commitment on the part of public authorities, which are mainly responsible for safeguarding the common good, is reflected in citizens not feeling committed to -responsible foreach other and, in consecuense, remaining aloof from matters concerning the common good. the only obligations that are recognised are those derived from private agreements and pacts. in this way, the line that divides the public and the private has ended up also affecting the principle of civic responsibility, which is very weak or almost non-existent in the modern constitutional state. under this type of state, citizens can exercise their right to vote but they have no means to supervise the actions of public authorities. moreover, nothing guarantees that the public authorities will always act in defence of the common good and of fundamental rights. recent years have shown us that, under neoliberal policies, the defence of general interests cannot only be left in the hands of the institutions of the state20. since the birth of the constitutional state, the powers of the political sphere have been subordinated to the powers of the private sphere, the economic powers, their success at reproducing themselves and, in consequence, managing to maintain alive the logic that ensures their survival: the logic of profit. the pre-constitutional elements -the right to property and the separation of the public sphere from the privatewhich the bourgeoisie managed to impose on the new political power of the constitutional state act, in this respect, as barriers to calls for democratisation and for the establishment of limits or meaningful bonds on the social powers (barcellona 1992, 129). new limits and obligations can be imposed on public authorities, as does indeed happen in the constitutional state, but not in relation to the private sphere. in this way, the economic powers see their rights and properties protected under the principle of freedom of choice and the treatment of civil rights as if they were rights to freedom (ferrajoli 2014, 52). meanwhile, it is one thing to say that the actions of public authorities accord with the rule of law and quite another to claim that their actions are always governed by the principle of the common good or the defence and prioritising of the general interest. as hilary wainwright points out, after analysing different experiences of public participation in european and latin american cities, “the state institutions are not the same as the common or public good, and neither have they demonstrated that they are capable of looking after it” (wainwright 2005, 195). 20 the rights of different collectives—those with mortgages, the sick, dependents, schoolchildren, retired people, the unemployed, workers—are always pushed into the background in the face of the demands of an economic system that must maintain the logic that governs the exchange of goods: that of profit. it is enough to read through the principles and norms of the treaty on the functioning of the european union (arts. 26.2, 63, 107 and 106.2) or the fiscal compact (title iii of the fiscal stability treaty), approved on 2nd march 2012, which contains the principles of stability or budgetary excess, or the latest reform of the european constitutions, such as section 135 of the spanish constitution, to see the extent to which economic logic rules or is imposed on any other, such as political logic or the logic of rights. or see the spanish royal decree, law 20/2012, of 13th july, concerning measures to guarantee budgetary stability and to foster competitiveness, which establishes cuts in social security benefits and in the application of law 39/2006 concerning dependency, reducing the maximum amounts of economic benefits for home care; and executive order asc/471/2010, of 28th september, which limits the right to home help for certain people who lack decision-making capacities, replacing it by care in nursing homes. the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 272 it is true, however, that the constitutions of the post-war era have placed new obligations on the state: social rights, some of which appear as fundamental rights, as is the case with the right to education in the spanish legal system. these legal instruments are still, however, insufficient to guarantee full compliance with the obligations. few of the social rights have become recognised as individual rights or as fundamental rights. new institutions are needed which genuinely guarantee fundamental goods and in addition defend what is common to all people who live together in a community. thus, in order to achieve effective protection of fundamental rights, the public sphere must have at its disposal new instruments that strengthen the principle of “cause of action” when such rights are violated. under the current constitutional state and within the framework of the reorganisation of political and legal powers resulting from globalisation, it is essential, for example, to guarantee access to justice as a universal right. indeed, in latin america we can find two constitutional watchdog institutions that exemplify construction of the necessary mechanisms, within the public sphere, to defend and guarantee fundamental goods such as the right to food. these two institutions are, the public defender’s office which forms part of a public ministry of justice; and a separate public body with the power to call on the judiciary to intervene (the public ombudsman or defensorías públicas) (2014, 227-229). something similar to these ombudsmen could be created in other states to oversee the way in which public authorities fulfil their obligations; but also how private bodies act to safeguard the basic rights that guarantee fundamental goods as a whole —common goods, non-transferable personal goods and social goods— and particularly the raf. be that as it may, the protection of fundamental goods in the current constitutional state demands somewhat more than a reform of the existing institutions. it requires new social and political praxis that brings with it new relations between the individual and the political institutions in the community. to counter the current neoliberal hegemony and the limits and shortcomings that the current predominant legal culture presents, imbued as it is with the dogma of individualism and the strict separation of the political and economic spheres, we need to promote, as barcellona expresses it, “instituent praxis” that transforms meanings and the institutions thus established (barcellona 1996, 78-79). this praxis should lead to the formation of what i refer to elsewhere as a “fourth power” within the constitutional state. this fourth branch of power would entail the creation of new public institutions whose realm of influence—through enacting checks and balances—is the powers of the state. the institutions would act with the aim of guaranteeing and protecting vital goods, allowing this project to advance while at the same time helping to consolidate the culture and practices that promote the democratic principle and the protection of fundamental goods. the fourth branch of power would be comprised of three types of institution: monitoring, judicial and deliberative. the institutions responsible for monitoring would oversee the use of public resources by public and private powers. meanwhile, the judicial institutions would analyse and evaluate the degree of compliance with rights and fundamental goods on the part of those same powers. finally, the deliberative institutions are those which give voice to civil society, enabling citizens héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 273 and associations to debate and put forward proposals concerning general interests or shared goods (silveira 2017a; 2017b). 5. the public sphere articulation with the powers of the role of the constitutional state: the need for a “fourth power” the limits of the current political sphere of liberal democracy could be transformed by constructing a new sphere of influence that operates between individuals, the organisations of civil society and the political institutions of representative democracy. the sphere of influence of the so-called participative democracy within the current model could become the instrument that allows us to move towards a more fully democratic society, with more citizen control and more political equality. furthermore, public institutions that come under greater control from citizens and that count on the participation of independent social actors can also come to have a strong influence on private powers and interests, as can be seen through the experiences of public participation in luton, porto alegre and newcastle (wainwright 2005, 195, 209). as opposed to the culture of the new neoliberal subject, we must offer a different culture that reinforces the idea of the democratic citizen who is committed to interests that are shared by all and, more specifically, to everything that is related to fundamental rights and goods, many of them already recognised in the corresponding legal systems. this culture requires major efforts in education, training and empowerment of the members of the community. today, the practice of the democratic principle and the maintenance of the principle of the rule of law demand that we achieve a cultural hegemony that inverts the current process of individualisation and the loss of ties between different members of the community. this issue of the “social ties and, therefore, of the determination of our shared goals,” barcellona writes, “is not in the slightest something nostalgic, but rather a novel urgency” (1992, 125). moreover, in order to achieve this new culture that promotes new social bonds, we require social and institutional spaces that allow us to implement and spread it. these new spaces and institutions will form the backbone of what i have here been referring to as the fourth power21. public opinion must find the means by which to reach the institutions that will allow it to intervene with efficacy and full legitimacy in the political system. the fourth branch of power is in no way intended to replace or leave to one side the existing mechanisms of representation and institutional participation; rather it is an attempt to construct a new institutional space governed by the law and which acts as a mediator between civil society and the institutions of the political system. it would act as the driving force for transformation of the public authorities already instituted, performing 21 this proposal for the institutionalisation of a fourth branch of power at the heart of state governance in order to improve the relations between civil society and the political system shares many of the ideas and considerations of habermas and fraser on the role of the public sphere in deliberative democracy; of the “associative democracy” proposal of cohen and rogers (1998, 9); of the “state as the newest social movement” of sousa santos (1999); and of mouffe with her idea to “radicalise the modern democratic tradition” (mouffe 1999). the right to food between the justiciability and the public sphere the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 274 functions of monitoring and follow-up of the organs of government and also drawing up new political proposals, in the search for better government and more democracy. it would thus accord with the philosophy that it is possible to “change the world without taking power,” as wainwright proposes, following the path that holloway previously opened up. the possibility of achieving social change and transformation depends on the correlation of the forces that at each given moment exist between the political powers and social power, within both political institutions and social organisations (wainwright 2005, 197). the objective of the institutions of the fourth power is to put into practice the two strands of the principle of participation in deliberative democracy: as the means through which to increase the capacity for self-decision and self-organisation of communities; and as a means to improve citizen control of the resources and institutions of the state (wainwright 2005, 84). the institutions of the fourth power, therefore, form spaces of participation and communication channels through which the members of the community can participate in and influence both the public agenda and the institutions of government of the community (politikon 2014, 263). they open the way for citizens to be able to participate in the general affairs of the community and to transmit their voice to the institutions of government, in addition to supervising the functioning of these latter bodies and safeguarding respect for and compliance with the rights, obligations and goods defined as basic and fundamental for the community. in this way, the fourth branch of power, representing the goals, aims and desires of the public sphere and civil society before the political system, and institutionalising checks and balances as well as communication channels with the public authorities, can become an instrument and driving force of the democratic principle in the community, and of the defence of fundamental rights and the common good. bibliography barcellona, p. (1992) postmodernidad y comunidad. el regreso de la vinculación social, trotta, madrid, [ed. original de 1990, il ritorno del legame sociale, bollatiboringhieri, torino]. barcellona, p. (1996), l’individuo sociale, genova, costa & nolan. cohen, j. y rogers, j. (1998) “asociaciones secundarias y gobierno democrático”, en zona abierta, n. 84-85 crouch, c. (2004) postdemocracia, taurus, madrid. domènech, a. (2004) el eclipse de la fraternidad. una visión republicana de la tradición socialista, crítica, barcelona. domènech, a. (2013) “la humanidad es una sola, no un cúmulo de culturas cerradas”, entrevista en la habana, en www.sinpermiso.info, (7 de enero 2013. ferrajoli, l. (2011) principia iuris. teoría del derecho y de la democracia, (vol. i-teoría del derecho), (vol. ii-teoría de la democracia), trotta, madrid. ferrajoli, l. (2014) la democracia a través de los derechos, trotta, madrid, héctor silveira the age of human rights journal, 15 (december 2020) pp. 263-275 issn: 2340-9592 doi: 10.17561/tahrj.v15.5826 275 ferrajoli, l. (2019), manifiesto por la igualdad, trotta, madrid. fraser, n. (2008), escalas de justicia, herder, barcelona. golay, ch. (2009) derecho a la alimentación y acceso a la justicia: ejemplos a nivel nacional, regional e internacional, fao, roma. habermas, j. (2009), “¿tiene aún la democracia una dimensión epistémica? investigación empírica y teoría normativa”, en id., ¡ay, europa!, trotta, madrid. marramao, g. (2011) “la lógica del capital está en una fase terminal, al igual que la lógica de la democracia”, en el jinete insomne (blog), 30 de octubre. martín lópez, m.a. (2016) el derecho a la alimentación ante los riesgos del futuro, en araucaria. revista iberoamericana de filosofía política y humanidades, n. 18. medina, j.m. (2018) el derecho humano a la alimentación en españa (mecanoscrito) mouffe, ch. (1999) el retorno de lo político, paidós, barcelona. ovejero, f. “culturas democráticas y participación (para una crítica del elitismo democrático)”, en http://www.oei.es/cultura2/ovejero.htm. politikon (2014) la urna rota, debate, madrid. rodotà, s. (2012) il diritto di avere diritti, laterza, roma, [trad. en español: el derecho a tener derechos, trotta, madrid, 2014]. silveira, h. (2017a), el cuarto poder y la protección del bien común, en crítica penal y poder, n. 12. silveira, h. (2017b), “más allá de la gobernanza democrática. el cuarto poder y la protección de lo común, en crítica penal y poder, n. 13. silveira, h. et alt. (2018) hasta qué punto los estados de colombia, costa rica, chile, el salvador, república dominicana y uruguay cumplen con las observaciones del comité desc en relación con el derecho a la alimentación, (en prensa). sousa santos, b. de (1999) reiventar la democracia, reiventar el estado, sequitur, madrid. wainwright, h. (2005) cómo ocupar el estado. experiencias de democracia participativa, icaria, barcelona. received: january 7th 2020 accepted: june 12th 2020 articles héctor silveira the right to food between the justiciability and the public sphere 1. food as a “fundamental good” 2. guaranteeing the right to food 3. obstacles to the recognition of the right to food a) the neoliberal thought b) the legacy legal culture c) subjective rights of the individual and the affected d) rights and justiciability: an inadequate defence strategy 4. a public sphere that promotes and protects the right to food a) a weak political community, which lacks public participation and does not safeguard the common good 5. the public sphere articulation with the powers of the role of the constitutional state: the need for a “fourth power” bibliography the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 397 the right to participate in political and decisionmaking process under the maputo protocol: normative masculinity and nigerian women onyekachi eni1 macpherson uchenna nnam2 udu eseni azu3 abstract: the birth of the protocol to the african charter on human and peoples’ rights on the rights of women in africa otherwise known as maputo protocol was meant to overcome the shortcomings of the african charter on human and peoples’ rights. despite nigeria’s ratification of the maputo protocol, little concrete achievements have been recorded. this study situates the right of nigerian women to participate in political and decision-making process under the maputo protocol in the context of normative and hegemonic barriers in the country. using analytical methodology, the paper argues that the underrepresentation of nigerian women in public governance is a negation of human rights. it recommends the domestication of the protocol through its ratification by the national assembly in line with the provision of section 12(1) of the country’s constitution. keywords: political empowerment, human rights, maputo protocol, democracy, development, masculinity, decision-making. summary: 1. introduction. 2. democracy and the imperative of popular participation. 3. framework for political empowerment. 4. the trajectory of development and politics. 4.1. the imperative of implementation. 4.2. political exclusion as a vista of normative masculinity. 5. normative masculinity and the maputo protocol. 6. conclusion 1. introduction part of the explanation for the gap in gender participation in politics is that in many societies, nigeria inclusive, people do not want women in politics because it is largely seen as a masculine domain (romer, 1990: 230; rudman and fairchild, 2007:127). in addition to sundry socio-demographic factors such as age restrictions, gender socialization and cultural practices which prevent women from participating in political decision-making, many other structural and systemic factors occasion a gender division of labour which locate women in the domestic sphere and men in the public sphere (chabaya et al., 2009:238). the consequence of the sexist division of labour which regards politics as a masculine profession (connell, 2005; heldman et al., 2005:218) is the activation of men’s resistance and unwillingness to share political power and decision-making process with women (schein, 2001:678). 1 senior academic and dean, faculty of law, alex ekwueme federal university, ndufu-alike, ebonyi state, nigeria (onyekachieni@gmail.com). 2 head, department of criminology and security studies, alex ekwueme federal university, ndufu-alike, ebonyi state, nigeria (icharilife@yahoo.com). 3 senior lecturer, department of public and private law, faculty of law, ebonyi state university, abakaliki, nigeria (udueseni@ebsu.edu.ng). mailto:onyekachieni@gmail.com mailto:icharilife@yahoo.com mailto:udueseni@ebsu.edu.ng the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 398 in this paper, we employ the term ‘normative’ in an epistemological sense as signifying a condition in which some action, attitude or mental state finds justification as an action or state one ought to be in (darwall, 2001). similarly, we use the term ‘masculinity’ to refer to the social roles, behaviours, and meanings prescribed for men in any given society at a given time (kimmel, 2005). by normative masculinity, therefore, we refer to a socially constructed structure in which gendered attributes of maleness are patriarchally denominated as normal and justified. from this perspective, the paper is tangentially and thematically undergird by connell’s (2005) theory of hegemonic masculinity which takes its bearing from gramsci’s (1971) concept of hegemony which is, in itself, essentially a theory of domination. patriarchal political culture being an important determinant of women’s participation, the prevalence of masculine politics signifies the otherness of women, their near total exclusion in decision-making and a corresponding over-representation of men in all public spheres including politics (connell, 2005). the consequence of normative masculinity is that the electorate, for instance, expect politicians and leaders to have masculine traits instead of feminine ones as masculinity attributes become critical requirements to run higher offices (rosenwasser and dean, 1989:594; mcginley, 2009:714). while low level of women’s participation in political and decision-making process are global in scope (agbalajobi, 2020:076), obnoxious social norms, harmful traditional practices, political exclusion and economic lopsidedness have exacerbated their political viocelessness and intensified their exclusion in decision-making in most parts of africa, especially nigeria (kasomo, 2012). banda (2021:8) posits that ‘deeply entrenched patriarchy in [the] african society has posed many barriers for women in political participation’. in the colonial and immediate post-colonial period in africa, women’s involvement in politics was marked mainly by their presence in the women’s wings of the political parties which possessed little or no functional relevance (kolawole et al., 2013:66), their roles being largely nominal (ajayi, 2019). the need to further the cause of human rights in africa and stem the tide of discriminatory practices against women gave rise to the african charter on human and peoples’ rights (the african charter). as the primary treaty which provides a framework for human rights in the region, the charter recognizes and affirms women’s rights in three major provisions.1 however, in spite of the women-oriented provisions in the instrument, the african charter is generally regarded as ineffective in addressing the issue of discrimination against women. among other shortcomings, the non-discrimination provision in it can only be invoked in relation to the implementation of a right under the charter (akiyode-afolabi and amadi, 2008). the birth of the protocol to the african charter on the rights of women in africa otherwise known as the maputo protocol was both a reaction 1 article 18(3) requires states parties to ensure the elimination of every discrimination against women and also ensure the protection of the rights of women. article 2 provides that the rights and freedom enshrined in the charter shall be enjoyed by all irrespective of race, ethnic group, colour, sex or other status. article 3 of the charter provides that every individual shall be equal before the law and shall be entitled to equal protection of the law. onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 399 to the shortcomings of the african charter and an attempt to strength the human rights governance architecture of the region (sadie, 2015:65). the protocol itself acknowledges the ineffectiveness of the african charter when it notes that ‘despite the ratification of the african charter on human and peoples’ rights, women in africa still continue to be victims of discrimination and harmful practices’2. since it entered into force3, the maputo protocol has become the reference legal instrument of the african rights system for the promotion and protection of women’s rights (maiga, 2012). the protocol exhorts states parties ‘to take specific positive action to promote participative governance and the equal participation of women in the political life of their countries…’4 the adoption of the protocol is regarded as a signifier of a renewed political commitment to the advancement of women’s rights as human rights in africa (centre for reproductive rights, 2006:4). as an index of its commitment to the cause of women’s participation in political and decision-making process, nigeria ratified the maputo protocol5 in addition to other relevant instruments in africa and united nations (un) human rights systems. the federal government of nigeria in a bid to implement the affirmative declarations in favour of women as contained in such instruments, captured them in the nigeria gender policy (ngp) which was launched in 2006 (olufuunke, 2014:023). in spite of nigeria’s subscription to a plethora of international treaties to improve women’s political participation and representation, very little concrete achievements have been recorded (kelly, 2019:2). the united nations development programme (undp), for instance, insists that despite relative increases, women’s participation in politics and decision-making in nigeria is still inadequate (asaju and adagba, 2013:62). currently, nigeria ranks among the countries with the lowest rate of women’s representation in parliaments across the world ranking 186 out of 193 countries globally (women in national parliaments, 2019). this is so despite the fact that women account for nearly half of the population of nigeria with 49.2% but they are underrepresented in the public sector (okongwu, 2021:28). notwithstanding nigeria’s ratification of the maputo protocol and the availability of various laws that can eliminate discrimination against women and enhance their participation in the political decision-making process, inequality and gender-based discriminatory practices against women persist (okongwu, 2021:40). this study situates the right of nigerian women to participate in the political and decision-making process under the maputo protocol in the context of normative and hegemonic barriers which tend to truncate the actualization of the lofty ideals in the instrument. we argue that the subsisting under representation of nigerian women in the public governance architecture of the country is not only a negation of their human 2 preamble to the maputo protocol. 3 the protocol was adopted on 11 july 2003 at the 2nd ordinary session of the african union held in maputo, mozambique and entered into force on 25 november 2005. it is one of the two main mechanisms in the area of promoting women’s rights in africa, the other being the au gender directorate. 4 article 9.1, maputo protocol 2003. 5 nigeria ratified the protocol on 16 december 2004 and deposited its article of ratification on 18 february 2005. the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 400 rights but also a devaluation of their strategic contribution to national development. we contend that the structural disempowerment of women to participate in politics and decision-making is a major dent on nigeria’s democratic credentials. by appraising the operational (in)effectiveness of the maputo protocol as an instrument of women’s empowerment, we contribute to the discourse on normative masculinity and the quest for sustainable development. the methodology adopted in this study is analytical and comparative in orientation. by this, we examined the primary regional human rights framework, the african charter and its offshoot, the maputo protocol, in relation to the major instruments within the un human rights system. relying on relevant literature, we thematically juxtaposed the essential provisions of these instruments with the prevailing patriarchal tendencies which characterize nigeria’s social political climate and found that nigerian women still face serious discriminatory practices. the findings informed the recommendations that attend the paper. 2. democracy and the imperative of popular participation democracy being a people-centered form of government, popular participation is universally acknowledged as its bedrock (opukri and tarabinah, 2013:18). in a democratic polity, popular participation is expressed as the right of citizens as stakeholders to make choices from competing alternatives based on the platform of electoral infrastructure and the process of decision-making (opukri and tarabinah, 2013:18). according to the international parliamentary union (ipu, 2019), popular participation enriches democracy by ensuring better decision-making and strengthening politicians’ accountability to the people. the rationale for popular participation is that everyone who is affected by a decision has a right to be involved in the decision-making process (ipu, 2019). one of the defining ingredients of political participation is that it must be voluntary as to allow citizens to freely influence political and administrative systems and decisions at various levels (uhlaner, 2015:504; kamlage and nanz, 2018:3). while there exists a diversity of orientations to the doctrine of political participation, all the approaches are meant to achieve what offe (2011) describes as ‘democratizing the democracy’. the recognition and participation of women in politics is adjudged a basic platform for gender equality (johnson, 2012:96). this perspective represents the human rights approach to political participation which in turn draws strength from the universal declaration of human rights (1948)6 and allied instruments in the un systems. this is to the effect that an essential tenet of any democratic framework is the principle of human rights including the grant and exercise of the political rights of both men and women (ballington and karam, 2005:24). in the african region, the human rights approach is anchored on the contention that since women constitute about half of the entire population, they have a right to be represented in decision-making and policy formulation (boserup et al., 2013). drawing from the human rights thesis, feminist theorists on popular participation aver that 6 articles 2 and 21, udhr stipulates equality in the enjoyment of political rights free from discrimination on the basis of sex or other reasons. onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 401 women are a homogenous group who deserve to be represented in discussions that give rise to public policy formulation on account of their peculiar experiences (young, 1989; swers, 2002) for which men cannot represent them effectively (pateman, 2005:2005:27). corner (1997:3) amplifies this averment when she asserts that ‘since women and men play different roles in society and therefore have different needs, interests and priorities, it follows that women cannot be adequately represented in decision-making by men’. in effect, equal access by all adult citizens to participation in decision-making and leadership is a basic principle of democracy (corner, 1997:3). the corollary of the human rights argument is that women’s non-participation in politics renders them non-citizens for whom policy outcomes reinforce their inferior status (lowe et al., 2021:19). the equity argument on women’s participation in decision-making is that women have a right to share in decision-making in proportion to their numbers as a distinct group in the society for which their non-representation constitutes a violation of the core essence of democracy (lowe, et al., 2021:19). cooper and lybrand (1994) have argued that parliaments, for instance, should be ‘mirror images’ of each country by capturing its variegated socio-demographic diversity. similarly, the rational choice model of political participation was proposed by down (1957) as an economic theory of democracy which views participation in terms of cost and benefits to individual participants. the implication is that women’s non-participation or underrepresentation in political decision-making process collaterally undermines their democratic voice and socio-economic interests (verba, et al., 1995). the un secretary general, ban ki-moon (2011) elucidates the critical nexus between democracy and participatory inclusiveness when he notes that women’s political participation not only improves democracy but also that ‘democracy is an incubator for gender equality’. the consequence is that democracy will not be properly so called if women are excluded or segregated from the political and public institutions in the society (haque, 2003:576). in nigeria, women’s participation in political decision-making process received a shot in the arm with the enfranchisement of women in the southern part of the country in 1960 while the enfranchisement of women in the north took place in 1979 (british council nigeria, 2012). while socio-economic and geographical factors have played a role in the late activation of the female franchise in northern nigeria, islam is also implicated in the low levels of political participation in that part of the country (british council nigeria, 2012). however, the notion in christian religious thought that wives should be submissive to their husbands (ephesians 5:22-33) has contributed to making christianity in particular and religion in general an effective tool for the socio-political subordination of women (christian aid, 2015). 3. framework for political inclusion in light of the pervasive underrepresentation or total exclusion of nigerian women in political decision making, the birth of the maputo protocol in 2003 and nigeria’s ratification of same in 2004 was expected to boost women’s participation in politics. the protocol is rooted in the parent instrument, the african charter, which trumpets the principles of gender equality and non-discrimination.7 as an instrument of inclusion and gender equalthe right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 402 ity, the protocol mandates states parties to include in their national constitutions and other legislative frameworks, the principle of equality and non-discrimination8. the protocol also commits state parties to modify the social and cultural patterns of conduct of women and men through public education, information, enlightenment and communication strategies to eliminate harmful practices against women9. as a facilitator of women’s participation in political and decision-making process, the protocol makes elaborate and potentially far-reaching provisions including affirmative action and participatory inclusivity, to further the cause of women’s political empowerment10. the provisions of the maputo protocol draw inspiration from the un convention on the elimination of all forms of discrimination against women (cedaw) for which article 7 coterminously exhorts states parties ‘to take all appropriate measures to eliminate discrimination against women in the political and public life of the country’11. another international instrument to which nigeria is a signatory is the international convention on civil and political rights (iccpr) which prohibits discrimination on any grounds such as sex or political opinion12. the recurrent thematization of the imperative of women’s participation in political decision-making also took centre stage in the beijing fourth world conference on women, 1995. the beijing platform of action (bpoa) questioned the feasibility of achieving meaningful democratic transformation in africa if the violation of women’s political rights persists stressing that democratic institutions which lacked women’s representation in political decision-making cannot achieve gender equality in policy agenda-setting accountability.13 prior to beijing, earlier un conferences on women which held in copenhagen, nairobi, vienna, and cairo also contributed to the sustained momentum on women’s political empowerment (agbalajobi, 2020:081). similarly, the un general assembly resolution 58/142 on women’s political participation mandates all stakeholders to develop comprehensive set of programmes and policies to increase women’s participation in decision making (world health organization, 2005). the mandate was further supported by the commission on the status of women (csw) which seeks equal participation of both men and women in politics, leadership, and decision-making (krook and true, 2012:112). apart from the global and regional instruments on the subject matter, many nigerian municipal instruments also support the cause of women’s political empowerment. for instance, the constitution of the federal republic of nigeria, 1999 (as amended) prohibits 7 article 2 of the charter provides for non-discrimination on the grounds of race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. similarly, article 18 of the charter specifically calls on state parties to eliminate all forms of discrimination against women. 8 article 2 9 articles 2(2). 10 article 9(1) (a-c) and (2). 11 nigeria ratified cedaw in 1985, signed the optional protocol on 8 september 2000 and ratified it on 22 november 2004. 12 article 26, iccpr, 1966. 13 declaration 1995b. onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 403 discrimination on any basis such as gender, religion and political persuasion.14 it also stipulates that every person shall be entitled to a wide range of rights and freedoms including the right to form or belong to any political party for the protection of their interests.15 the same constitution further provides that every citizen who has attained the age of 18 years in nigeria at the time of registration of voters shall be entitled to be registered as a voter for that election16. in spite of the non-discrimination provision of the constitution, it is, however, undergird by latent masculinity with respect to the deployment of patriarchal language in its framing (okegbola, 2010). the gender non-neutrality of the constitution is evident in the fact that the pronoun ‘he’ appears 235 times in the constitution while the word ‘women’ was used only two times17 in the grundnorm (okegbola, 2010). the commitment to women’s political empowerment which culminated in the formulation of the national gender policy (ngp) in 2006 provides for 35% affirmative action in favour of women (afolabi, 2018:5). however, despite ratifying the maputo protocol along with other legislative instruments and policy actions, nigeria continue to have one of the largest ‘participation gaps’ in sub-saharan africa (isaksson, kotsadam and nerman, 2014:311). in fact, nigeria has the lowest level of female representation in parliaments throughout africa with 3.63% while rwanda is the highest in the continent with 61.25% (ipu, 2020). similarly, the world economic forum in its 2018 global gender gap report which measures ‘political empowerment’ in terms of ratios of women to men in ministerial and parliamentary positions among others, ranked nigeria in the 139th position out of 149 countries surveyed globally (kelly, 2019:4). a comparative analysis of the distribution of the 469 legislators at the joint session of nigeria’s national assembly by gender between 1999 to 2019 confirms that women are grossly underrepresented in the country’s bicameral legislature: the senate and the house of representatives. in the 1999-2003 legislative session, the total number of women in both chambers of the national assembly was 15(3.2%); 26(5.5%) in the 2003-2007 session; 36(7.68%) in the 2007-2011 period; 34(6.6%) in the 2011-2015 session and 29(6.18%) in the 2015-2019 session in both chambers (national assembly gender strategy, 2014). having regard to the fact that women constitute a substantial proportion of the total population of nigeria which stands at about 49.36% (olufuunke, 2014:224), their gross under representation in the parliament and overall political decision-making process is a sad commentary on nigeria’s commitment to women’s political empowerment (agbolajobi, 2020:76). the yawning gaps in women’s representation at different levels of governance and leadership, result in a situation in which ‘women’s voices still remain a whisper’ (sadie, 2021:66). the factors responsible for the persistent underrepresentation of women in political decision-making range from sexist and patriarchal social frameworks to sundry socio-economic and institutional obstacles. in section four of this study, we shall examine the incidents of hegemonic masculinity which undergird the implementation of the maputo protocol in nigeria. however, while the focus of this study is on hegemonic masculinity as a foil to women’s political participation, it should be acknowledged that 14 section 42. 15 section 40. 16 section 77(2). 17 sections 26(2)(a) and 29(4)(b). the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 404 factors such as the pervasive culture of violence, absence of affirmative action for women, lack of support by political parties and funding constraints are also contributory to the political disempowerment of women (kelly, 2019:2). 4. the trajectory of development and politics in the previous section, we mapped the intersection between popular participation and democracy and argued that the underrepresentation or exclusion of women in politics and political decision-making is a blight to the chemistry of democracy. in this section, we extend that argument by positing that development is underpinned by democracy (as a system of political expression) and that women’s participation in the political decision-making process is critical to the attainment of sustainable development. by its very nature, development is a transformative process inescapably anchored on economic growth, social change and political interaction (leftwtich, 2006:12). the politics of development refers to the conflictual contestation between how resources are used, produced and distributed on one hand and how decisions are taken about the social structure which sustains, implements and extends them on the other (leftwitch, 2006:13). according to barber (2014:1), the political context of development is ‘the most potent and determinative sphere of the human ecology’. this averment finds resonance in fukuyama’s (2013:1), thesis that ‘if you don’t get the politics part of development right, none of its other parts, including economic policies, are going to work either’. for the reason that developmental outcomes are politically determined (leftwich, 2006:24), popular participation in politics becomes an important expression of individual and collective action (cunill, 1991) targeted at influencing public policies and the course of development (parry et al., 1992:16). this is because politics is the fulcrum upon which the entire system of development and social transformation revolves (david, 2015:1). the interconnectivity between development, economics and politics (david, 2015:2) and the acknowledgement that democracy and development are tied to human freedom and dignity (salih, 2017:4) underscore the position of the inter-parliamentary union (2015) that any barriers to democratic or political participation constitutes a denial of peoples’ rights which can lead to underdevelopment, instability and poor governance. according to the nobel laureate amaryta sen (1995), authentic development energizes political freedoms while democracy is the driving force for human development through participation and inclusion. the view that ‘depoliticizing economics [development] is nefarious to democratic sensibilities’ (iyer, 2014:7; chang, 2014:377) has led to the contemporary notion that democratic inclusion participation and participatory development apply the same principle: the protection of the existential rights of the minority and the vulnerable (salih, 2017:4). the underrepresentation or exclusion of women in and the corresponding domination of the political decision-making process by men is both a setback to development and the betrayal of the responsibility of government to exercise its authority for the well-being of the entire community (johnson, 2012:85). like several global and regional instruments on the subject, the maputo protocol underscores the centrality of women’s political empowerment as a driver of democracy and onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 405 development. hailed as the most progressive legal instrument providing a comprehensive set of human rights for african women (thabane and buthelez, 2008:175-176), the protocol emphasizes the right of women to participate in all elections and equal representation of women in electoral processes.18 it also stipulates equal partnership of women with men at all levels of development and implementation of state policies.19 apart from being an outgrowth of the african charter on human rights, the maputo protocol has also drawn strength from the african charter on democracy, elections, and governance, otherwise known as the african democracy charter (paxton and kunovich, 2003:87-88). in emphasizing women’s rights and women’s essential role in development, the protocol pays homage to the united nations plans of action on environment and development (1992), human rights (1993), population and development (1994); and social development (1995).20 furthermore, as a facilitator of women’s participation in political decision making and general socio-economic development, the protocol specifically mandates states parties to ‘ensure women’s participation in the conceptualization, decision-making, implementation and evaluation of development policies and programmes’21. the protocol’s stress on gender equality in political decision-making and the entire spectrum of socio-economic development is in tandem with the objectives of cedaw which creates an affinity between the ‘full and complete development of a country’ with the need for ‘maximum participation of women on equal terms with men in all fields’22. it is also in line with the provision of the economic community of west african states (ecowas) treaty 1975 (as revised in 1993) on women and development which urges states parties to provide a framework within which the constraints that inhibit women will be addressed in the overall interest of the society.23 ecowas leaders also adopted the supplementary act on equality of rights between women and men for sustainable development, 1995 which commits ecowas member states to institute affirmative action for gender equality and equity in decision-making positions in the public and private sectors24. the importance of women’s participation in decision-making for development and social transformation is underscored by un’s sustainable development goals (sdgs). specifically, goal 5 of the sdg aims to ‘ensure women’s full and effective participation and equal opportunities at all levels of decision-making in political, economic and public life’. 4.1 the imperative of implementation despite the ratification of the maputo protocol by nigeria and many other states, its implementation has recorded little progress and the gains accruing therefrom have been slow and low (apo group, 2020:2; maiga, 2012: para 46). according to the commissioner of the african commission on human and people’s rights and special rapporteur on 18 article 9(1) (a-b) 19 article 9(1) (c). 20 preamble to maputo protocol. 21 article 19, maputo protocol. 22 preamble to cedaw. 23 article 66(2) (b). 24 article 11.1. the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 406 the rights of women in africa, justice lucy asuagbor, the consequence of the slow pace of progress in the realization of women’s political empowerment is the corresponding slowing down of the implementation of africa’s development goals as encapsulated in agenda 2063 (apo group, 2020:2). in the aspiration for gender equality and participatory inclusivity, the question has arisen as to what women uniquely bring to the table. in her ‘foreword’ to the seminal study on the difference that women make to politics entitled: beyond numbers, south-africa’s first post-apartheid speaker, frene ginwala avers that women’s participation in politics ‘inevitably lead to solutions that are more viable and satisfy a broader range of society’ (karam, 1998:2). to the same question, the un under-secretary-general and executive director of un women, phumzile mlambo-ngcuka submits that ‘gender-balanced governments made better decisions because they were more representative of the people they served, and women brought fresh perspectives [to policy formulation]’ (lowe, et al., 2021:21). in its 2003 study on women in decision-making in southern africa, a non-governmental organization, gender links, notes that women’s equal participation in political decision-making is not merely a matter of being ‘politically correct’ but indeed a vital component of good governance (lowe-morna, 2004:249). according to the common-wealth secretariat (1999), the entry of women into parliament, for instance, leads to the mainstreaming of issues such as abortion, domestic violence, sexual harassment, rape and single parenthood in the parliamentary agenda. cramer (2005) echoes this point when she notes that compared to men, women bring to the leadership space, a different mindset in resource allocation which favour a redistribution agenda prioritizing children’s education, social services and health (laplante, 2004). the unique contribution of women in political decision making and governance is informed by their peculiar experiences which make them do politics differently from men (afolabi, 2019:4). the implication is that women must be actively involved in the dynamics of political decision-making in order to bring change to the system. to make a difference, the maputo protocol exhorts that women’s participation in decision-making and governance must be full and comprehensive in order to make their number count.25 this underpins the theory of critical mass, which holds that women cannot make meaningful difference as long as only a few of them are in politics because ‘it takes a critical mass of women to make a fundamental change in politics’ (dahlerup, 1991:10). on account of the peculiar attributes of women and the socio-demographic factors that temper their political motivations, the failure to incorporate their concerns in decision-making represents a major loss for the society as a whole (corner, 1997:3). this is so because women’s needs, interests and concerns are not just those of women themselves but ‘reflect their primary roles as mothers, wives and caregivers’ (corner, 1997:3). considering the strategic place of women in the development matrix, the absence of their perspective at various levels of decision-making will make it impossible to achieve the goals of equality, development and peace (ilesanmi, 2018:4). 25 article 19. onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 407 in addition to their overall contribution to the cause of development, women’s participation in political decision-making strengthens the cause of peace and mutual understanding because they bring a less combative style to political argumentation and a disposition less influenced by personal interests (johnson, 2012:88). the maputo protocol acknowledges the contribution of women in conflict resolution and peace building as an important consideration for mandating states parties to ensure the participation of women in the decision-making process in line with the un security council resolution 1325 (2000)26 on the role of women in promoting peace and security (cohn et al., 2004; tryggestad, 2009). there is evidence in support of the notion that intra-state conflict is more likely to occur in states where gender equality in political representation has not been achieved (daramola and oniovokukor, 2006). part of the explanation for this is that ethnic mobilization is more likely to readily develop where there exist severe gender inequalities because ethnic nationalism is mostly patriarchal (daramola and oniovokukor, 2006). considering that ethnic identity is particularly important for nigerians (dandia, 2007), it seems plausible to implicate the pervasive gender inequality in the country in the avalanche of inter-ethnic conflicts besetting it. similarly, nigeria’s subsisting status as a poor nation (olawole and alao, 2017:211) despite its rich human and material resources in addition to numerous government programmes for poverty alleviation (omotola, 2008) may rightly be traced to women’s political disempowerment and gender imbalance in decision-making over the years (ilesanmi, 2018:2). it does not seem coincidental, therefore, that the african countries that have made more substantial progress in women’s political participation and representation with the largest number of women in decision making positions are also the countries that have recently experienced armed conflict and bloodletting (abdennebi-abderrahim, 2019:4) such as rwanda, burundi, mozambique and uganda. in burundi, for instance, the increased representation of women in state institutions has led to the social transformation of the country (sow, 2012:7). similarly, rwanda and south africa are examples of the efficacy of affirmative action in achieving increased women’s participation in decision-making and governance (devlin and elgie, 2008). the corollary of the forgoing is that the improvement of women’s participation in political decision-making in nigeria in line with maputo protocol is a necessary condition for peace and sustainable development in the country. the beijing platform of action expressed it rather grandly when it declared that ‘the attainment of sustainable development in africa will require the provision of equal access to and full participation of women in power structures and decision-making’ (declaration, 1995b). 4.2. political exclusion as a vista of normative masculinity part of the consequences of normative masculinity is the valorization and justification of the attributes of maleness (kimmel, 2005). according to chuki and turner (2017) the hegemonic status of men in the society has given rise to ‘a global political model which is male dominant, male-identified and male-centred’. through socialization and the gendered allocation of roles in the society, women are assigned the private sphere which 26 preamble, maputo protocol. the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 408 entails taking care of the home and the family while men are assigned the public sphere which entails running the affairs of the society (mtinsto, 1999:33-51). with patriarchy as it's driving force, the frameworks of masculinity define and dictate the temper of power relations between men and women by fostering a social structure in which men occupy decision-making roles in the home, community and national life (morna, et al., 2021:18). this explains why patriarchy has been globally identified as the prime obstacle to women advancement and development (sultana, 2011) and constitutes the main reason for the significant devaluation of the role of women in the political arena when compared with their male counterparts (khelghat-doost & sibly, 2020:398). the perpetuation of women’s political exclusion arises from the normative culture in which ‘men are considered the bearers of the culturally legitimated authority’ (rosaldo, 1974:21). however, it is to be noted that the hegemonic domination of women by men which is systematically emergized by patriarchy is not limited to the political space but spans the entire gamut of the social structure (sanit, 2009). walby (1989:20) put forward six structures that shape patriarchy and with it, the normative framework of the society to include mode of production, governance and state relations as well as the pillars of cultural institutions. the structural subordination of women in general and their political disempowerment in particular logically flow from the normative framework which makes it difficult for women to leave their traditional domestic roles for more public roles outside the home (morna et al., 2021:22). this not only accentuates their voicelessness in the decision-making matrix but also ‘continues to hinder [their] entry into formal politics’ (morna, et al., 2021). the united nations report to the fourth world conference on women underscores the political disempowerment of women globally when it avers that ‘nowhere is the gap between de jure and de facto equality among men and women greater than in the area of decision-making’ (un, 1996:12). this is because of all the spaces of decision-making, politics is acknowledged as ‘the most public of all public spheres and, therefore has been among the most hostile for women to access’ (morna, et al., 2021:36). the collateral consequence of the subordination or exclusion of women in the political grid is that they are unable to constitute a critical mass necessary ‘to make fundamental change in politics’ and society (dahlerup, 1991:10). the advocacy for the increased participation of women in decision making, therefore, stems from the acknowledgement that it requires the involvement of sufficient number of women in politics to effect substantial change in public governance and political decision-making (johnson, 2012:969). this position finds resonance in the exhortation of a moroccan female politician and local councilor, aicha ait alla (2021:24) who avers that in spite of the normative structures that work against women’s participation in politics, they must resist and hang on because ‘i am convinced that if we want to change something in this country, one must get into politics’. consequently, the frameworks of masculinity which inspire the subordination of women is responsible for the paucity of women politicians who make it to the pinnacle of political power in many countries of the world (darhour and dhalerup, 2013:133). in this regard, statistics indicate that as at september 2021, for instance, ‘there are only 26 women serving as heads of state or government in 24 countries of the world [while] one hundred onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 409 and nineteen countries have never had a woman leader’ (un women, 2021). of these, 10 countries have a woman head of state and 13 countries have a woman head of government (un women, 2021). similarly, according to a global survey by the interparliamentary union, as at 2019, ‘virtually all legislative bodies across the globe are male-dominated in nature’ (european parliament briefing, 2019:1). furthermore, it is worthy of stress that the frameworks of masculinity in various societies across the globe explains why women have been subjected to discrimination and excluded from equality-based treatment in the belief that they belong to an inferior gender, lack rationality and need to be supervised (fredman, 2002). the need to dismantle the normative structures which discriminate and subordinate women in political decision-making arises from the fact that humanity is incomplete without authentic democracy founded on political empowerment and developmental inclusivity (salih, 2017). this is because it is only reasonable that groups with specific interests and perspectives should participate in leadership and the decision-making process so that their views will be incorporated in the decisions that emerge and the agenda that precede them (corner, 1997:3). it is in this regard that as jewkes et al., (2015:113) have noted that changing hegemonic masculinity ultimately requires change in the ideals shared at a societal level. in the light of the global consequences of hegemonic masculinity, we now dovetail on the nigerian situation by examining the maputo protocol in the context of the structural subordination of women which characterize social relations in the country. 5. normative masculinity and the maputo protocol tangential to our position in the preceding sections of this paper, the thrust of our argument in this section is that the (non)implementation of the maputo protocol in nigeria is tempered by a culture which views the political (public) space as a masculine domain and the private space as feminine. in arguing, as we do, that patriarchal hegemony is the normalized and controlling impulse which defines social relations in nigeria (and much of africa), we approvingly take our bearing from raewyn connell’s theory of masculinity which has arguably become the singular most influential theoretical framework for studying men and masculinities (pascoe and bridges, 2015:20-21). drawing from gramsci’s (1971) concept of hegemony which is essentially a theory of domination, connell (2005) theorizes, the dominant masculinity as hegemonic masculinity representing ‘the culturally exalted form of masculinity’ (carrigan et al., 1985:592). notwithstanding the diversity of perspectives about the theory, connell’s (2005:77) definition of hegemonic masculinity as ‘the configuration of gender practice which embodies currently accepted answer to the problem of the legitimacy of patriarchy, which guarantees (or is taken to guarantee) the domination of men and the subordination of women’ answers to the socio-demographic impediments to the implementation of maputo protocol in nigeria. if the averment that outright misogyny is normalized in many african societies (banda, 2021) is debatable, there is hardly any argument that deeply entrenched culture of patriarchy and male chauvinism are potent barriers to women’s political participation in africa (soriola, 2017). patriarchy is the operating system that defines power relations in the society, allocating a dominant role to men and a subordinate role to women (lowe the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 410 et al., 2021:18). consequently, the factors that undermine women’s political participation (wpp) may be broadly categorized into two: the deep seated ‘informal factors’ such as custom, culture, tradition and gender stereotypes; and the ‘formal factors’ which include the media, electoral systems and election management, finance and resource control (lowe et al., 2021:22). by gendering traditional roles and division of labour, entrenched patriarchal systems put family control and decision-making in the hands of men while social norms do not encourage women to leave their traditional domestic roles for more public roles outside the home front (lowe et al., 2021:22). the penetration and ossification of patriarchal values in many societies are effected through socialization which allocates men decision-making status in both the public and private spheres and banishes women to care-giving services whether in the public or in the private spaces. the effect is that a society may seem at once democratic and yet be completely patriarchal (molneuk, 1984). patriarchal socialization begins at the family which constitutes its main institution (millet, 1970). women’s lack of experience in decision-making and leadership in the public sphere relates back to the family where, from infancy, girls in contrast to boys, are socialized to play passive roles and given little opportunity to develop leadership skills outside the family context (corner, 2021:4). furthermore, in most traditional societies, girls are largely kept within the confines of the household and family where they are protected and taught to accept the decisions which other people: parents, teachers, or others make on their behalf (corner, 2021:4). the effect is that over time, girls tend to lack the experience needed to function effectively in the public context in positions of formal leadership (corner, 2021:4). relatedly, socialization affects a woman’s perception about her social responsibilities and the expectations of society from her. in many cases, this will influence her personal choice of career and her career aspirations in order to accommodate her primary role as homemaker resulting in her conscious or unconscious avoidance of certain senior roles and leadership positions (hakim, 2006). also, women’s perception about themselves and their social roles often account for the refusal of women to support their fellow women who are seeking political offices. although factors such as envy and jealousy may also be implicated in the situation, the refusal of women to support fellow women seeking public office stems from lack of confidence in the ability of women to handle such positions effectively (ngara and ayabam, 2013:52). the effect is that despite their numerical strength, women would rather support men than fellow women to win political elections (ngara and ayabam, 2013:52). the case of mrs. sarah jubril who contested the presidential primary of the peoples’ democratic party (pdp) with the former president, dr. goodluck jonathan and former vice-president, atiku abubakar towards the 2011 general election in nigeria is illustrative of the point of women’s unwillingness to support their fellow women. in the primary, mrs. jubril scored only one vote (which she presumably cast for herself) in spite of numerous women delegates at the pdp convention (ngara and ayabam, 2013:53). evidence from literature suggests that as part of the consequences of family upbringing and patriarchal socialization, women are often legally placed under the authority of men especially in marriages where they are often regarded as minors lackonyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 411 ing rationality and needing to be supervised (fredman, 2002) on account of which they are precluded from participation in politics (okongwu, 2021:27). nigeria being a highly patriarchal society where men dominate all spheres of life (including marriage and the family) at the expense of women (gnr report, 2012), women are often required to seek the permission of their husband (or men generally) before venturing into politics. if such permission is not granted, the only option open to such women is to drop their political ambitions (nwabunkonye, 2014:288). in spite of nigeria’s ratification of the maputo protocol to address the discriminatory issues which women encounter in the country (okongwu, 2021:35), those issues are still alive and well. part of the explanation for this is that discrimination against women is ingrained in the nigerian culture and attitudes in addition to the fact that being a traditional society, ‘emphasis is placed on the role of women as that of homemaker and baby factory’ (cedaw periodic report, 1988 and 2003). the traditionally divided gender roles which assigned productive roles to the male sex and reproductive roles to their female counterpart (agbalajobi, 2020:1), are further reinforced by the entrenched socio-cultural and religious practices in nigeria which are skewed in favour of men against women and impede women’s active participation in politics (nwabunkuonye, 2014:286). in addition to the social structures that tend to keep women away from the public sphere, the two main religions in nigeria: christianity and islam inherently intensify gender discrimination and contribute to women’s political disempowerment. in the christian religion, for instance, eve is portrayed as an afterthought produced from adam’s spare rib while many islamic doctrines strictly bar women from some political behaviours such as public speaking which is often necessary for political visibility and advancement (agbalajobi, 2020:80). similarly, certain islamic religious practices such as the purdah system (house seclusion of women) strictly bar women from participating in politics whether as voters, political aspirants, campaigners and other electoral activities (nwabunkeonye, 2014:286). generally, in terms of political leadership and formulation of government policies, women’s role in islam is largely supportive and advisory (nwankwo and surma, 2008). in alliance with other factors, religion is acknowledged as a major factor in defining the responsibility of women and the association of men to leadership (christian aid, 2015). consequent upon the dominance of religion in the life of an african, it has been used as an effective tool for the subordination of women (okongwu, 2021:28). like religion, culture is a platform for the oppression of women and their political disempowerment (abara, 2012). many customary laws in nigeria are patrilineal in nature which often work against the property rights and economic interests of women thereby harming their sources of political funding (okongwu, 2021:30). similarly, nigeria operates a tripartite legal system with its sources from common law, customary law and islamic law. the application of these three legal systems is fraught with inconsistencies and contradictions making it difficult to harmonize legislation aimed at eliminating gender discrimination (okongwu, 2021:39). the effect is that any progress achieved by regional treaties, international conventions and domestic legislation are often eroded by the applithe right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 412 cation of customary and religious laws which are discriminatory against women (637th and 638th report of the committee on the elimination of discrimination against women). in spite of the maputo protocol and such other instruments, it remains the reality that for cultural reasons, many women in nigeria who actively participate in politics are seen and treated as women of easy virtue, stubborn, rebellious and too domineering (nwabunkeonye, 2014:288). the consequence is that during campaigns, their political opponents use their alleged low moral standing to publicly insult them (nwabunkeonye, 2014:288). the use of such negative labeling, derogatory names and abusive language to describe women in politics frequently discourage many of them from participating actively in the nation’s politics (nwabunkeonye, 2014:288). in addition to the factors already enumerated which are responsible for the non-realization of the lofty aspirations of the maputo protocol, the non-domestication of the instrument also constitutes a major drawback to the cause of women’s political empowerment in nigeria (louis-udeh, 2018). the constitution of nigeria demands that for any regional or international treaty to which nigeria is a signatory, to have the force of law in the country, such instrument must be domesticated by the national assembly27. the consequence of the non-domestication of the maputo protocol nearly 20 years after its ratification by nigeria is that its legal authority is equivalent to a paper tiger not being justiciable in the nigerian courts. the non-domestication of maputo protocol in nigeria is similar to the fate suffered by the attempt to domesticate cedaw through a bill to that effect in 2007 which failed at the national assembly (imam, 2010). a similar attempt was made vide the ‘gender and equal opportunity (geo) bill 2016’ which is an amalgamation of the principles and provisions of cedaw and the maputo protocol with the same result giving rise to the subsisting non-domestication of these vital instruments for gender equality and political inclusion (bbc, 2016). the opposition to the ratification of cedaw, for instance, was based on the belief that it was anti-god and anti-family. this misconception is founded on the belief that the subordination of women to men is a social order ordained by god and any challenge to it is coterminous with challenging god and the family institution (okongwu, 2021:34). like cedaw before it, the non-domestication of the maputo protocol is an index of the sustained resistance of the male-dominated national assembly to the implementation of gender equality measures such as affirmative action for women’s political empowerment (bako and syed, 2018). the consequence is the perpetuation of female subordination because as connell (2005:80-81) has noted, marginalization is always relative to the authorization of the hegemonic masculinity of the dominant group. this lends credence to the averment of chapman (1993:11) that men are the major determinants of political actions concerned with the perpetuation of power of the state. when women compete with men for access to political power, they do so on the terms established by men for competition among themselves. according to abelson (2019), in the current social milieu, the 27 section 12, constitution of the federal republic of nigeria 1999 (as amended). onyekachi eni; macpherson uchenna nnam; udu eseni azu the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 413 culturally exalted form of masculinity guarantees the domination of men over women. in nigeria, the variegated manifestations of normative and hegemonic masculinity which find expression in the perpetuation of patriarchal values have combined with subsisting institutional frameworks and government’s lack of political will to render impotent, the maputo protocol as an instrument of women’s political empowerment. this is made possible because according to yang (2020:320), even when ‘most men do not embody the hegemonic ideals, they still benefit from the ‘patriarchal dividend’ that advantages men in general through the subordination of women’. changing the situation is both desirable and imperative because the continued underrepresentation of women in political and decision-making process in nigeria is not only an affront to democracy but also an impediment to the actualization of the sustainable development goals in the country. 6. conclusion in spite of the numerical strength of women in nigeria who constitute about half of the country’s population, they remain marginalized and underrepresented in public governance and the political decision-making process. the low level of women’s participation challenges the democratic credentials of the country because democracy is people-centred while popular participation is its main canon. whether from the human rights, equity or efficiency perspectives, the subsisting underrepresentation of women runs counter to democratic principles. similarly, having regard to the nexus between politics and development, the underrepresentation of women in political decision making, apart from harming the socio-economic interests of women also robs the society of the peculiar contributions of women to the cause of nation-building and the actualization of sustainable development. the low level participation of women in political decision-making, therefore, is implicated in nigeria’s underdevelopment and subsisting poverty despite its rich human and material resources. women’s political participation is hampered by formal and informal factors. the perversity of gender inequality proceeds from entrenched patriarchal systems which put family control and decision making in the hands of men and consign women to reproductive and supportive roles as caregivers. the need to stem the tide of gender inequality and facilitate the cause of women’s political empowerment in the overall interest of the society informs nigeria’s ratification of several international and regional instruments on the subject including cedaw, iccpr, the african human rights charter, african democracy charter and the maputo protocol among others, in addition to constitutional and other legislative enactments which prohibit discrimination. part of the efforts of the nigerian government to enhance gender equality found expression in the national gender policy (ngp) 2006. the integrated goal of the ngp is to eradicate poverty, achieve gender equality and political empowerment of women as well as ensure their participatory inclusion in the process of governance. the ngp made a recommendation of 35% of female participation in both elective and appointive service positions which is above the 30% advocated by the beijing conference (oluyemi, 2016). following on the heels of the 2006 ngp, its strategic framework (implementation plan) 2008 showed that policies and measures set up to support gender equality and women empowerment have not been successful in improving political representations and the right to participate in political and decision-making process under the maputo protocol: normative masculinity and nigerian women the age of human rights journal, 18 (june 2022) pp. 397-423 issn: 2340-9592 doi: 10.17561/tahrj.v18.6633 414 appointments for women (amadi, 2017:148). according to un women (2019), the failure of these efforts is traceable to barriers such as patriarchy, religion, culture, electoral violence and economic situations which exclude women from participating in politics. these barriers which are entrenched in the society through socialization and gender stereotypes sustain the disparities between men and women which ‘law has been so unsuccessful in redressing’ (smith, 2014:149). that, of course, explains why the maputo protocol has not succeeded in enhancing the participation of nigerian women in the political decision-making process. in the light of the foregoing, some remedial measures are imperative in order to change the narrative of women’s marginalization, underrepresentation and exclusion from political decision-making. (i) the 1999 constitution of nigeria should be amended to incorporate explicit provisions on non-discrimination against women. such clauses should be given teeth by providing for affirmative action by way of specific quota for women by at least 30% in various legislative chambers in nigeria. similarly, the constitutional provision concerning political parties and elections should be amended to include affirmative action provisions for women. (ii) the electoral act 2010 being the principal electoral governance instrument in nigeria, should be amended to synchronize with the envisaged amendment of the constitution to provide for at least 30% quota for women which should be complied with in the submission of list of candidates for elections by the political parties to the independent national electoral commission (inec). (iii) as the gatekeepers to elective offices, the political parties should be required, by law, to adopt internal rules for affirmative action to allocate at least 30% quota to women in the elective positions. (iv) by virtue of section 12 of the constitution of nigeria, treaties which have been signed and ratified by nigeria will only have effect if it is domesticated by the national assembly. the domestication of the maputo protocol is, therefore, vital to clothe the treaty with the force of law and confer jurisdiction on the courts to adjudicate cases involving the violation of the treaty. the same thing should be done about cedaw which is currently impotent for the protection of women’s rights in nigeria. (v) as part of the measures to give effect to the provisions of the maputo protocol, any domestic laws which may be discriminatory to women should be repealed or amended. (vi) traditional rulers, religious leaders and indeed all stakeholders should seriously take stock of the norms, values and practices that are discriminatory to women and disadvantageous to the aspiration for gender equality and women’s political empowerment and do away with them. (vii) ingrained beliefs of the superiority of men and the role of women in society should be addressed through non-policy measures such as education, public enlightenment and conscientisation of the citizenry. this can be achieved through curriculum design targeted at educational institutions to remove gender stereotypes and achieve a shift in mindset. 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(1989). ‘polity and group difference: a critique of the ideal of universal citizenship’, ethics 99, 250 – 274. https://doi.org/10.1086/293065 received: november 28th 2021 accepted: january 24th 2022 https://data:ipu.org/women-ranking?month=10andyear=2019 https://data:ipu.org/women-ranking?month=10andyear=2019 https://doi.org/10.1086/293065 the right to participate in political and decision-making process under the maputo protocol: norm abstract 1. introduction 2. democracy and the imperative of popular participation 3. framework for political empowerment 4. the trajectory of development and politics 4.1 the imperative of implementation 4.2. political exclusion as a vista of normative masculinity 5. normative masculinity and the maputo protocol 6. conclusion references the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 105 explicative-existential justification of human rights. analysis of robert alexy’s argument in context of is-ought problem martin hapla*1 abstract: this paper analyzes robert alexy’s explicative-existential justification of human rights. according to the author, there are two problems connected with this concept. it cannot establish human rights universally and explain why we should accept them. in the paper, these questions are addressed in the context of the is-ought problem. alexy’s approach is compared with other theories that strive for human rights justification (basic needs approach, capability approach, and the foundationalism of alan gewirth). the author finds that in this respect all other theories have similar disadvantages. the inability to adequately elucidate the transition from is to ought is a general problem in moral philosophy, and therefore cannot diminish the position of alexy’s justification in this context. although his approach does not really meet certain absolute requirements for good justification, if we evaluate it in relation to other available alternatives, we have to acknowledge its significant place in the philosophy of human rights. even with alexy’s theory, however, the problem persists that it establishes rights of human persons rather than rights of human beings. it is therefore not able to fulfill some of its universalist aspirations. keywords: human rights; justification; explicative-existential justification; is-ought problem; universality of human rights. summary: 1. introduction. 2. explicative-existential justification: alexy’s argument for human rights. 3. why accept human rights: is-ought problem in human rights theories. 3.1 general remarks. 3.2 alexy’s justification of human rights. 3.3 basic needs approach and capability approach. 3.4 foundationalism of alan gewirth. 3.5 the best possible, not perfect justification. 4. problem of universalization: rights of human beings or human persons?. conclusion 1. introduction human rights are an integral part of our moral, political, and legal thinking. these rights are successful, and in practice they seem to be increasingly gaining influence. yet there remains a strong intellectual skepticism toward them (beitz, 2009, p. xi; sen, 2004, p. 316). one of those who seeks to respond to this skepticism and provide credible justification for these rights is german legal theorist robert alexy. his explicativeexistential justification is an interesting concept that deserves more detailed analysis. in this text i will try to understand its main difficulties in the context of the is-ought problem. i will argue here that this justification cannot establish human rights universally, and also has normative assumptions that we may or may not accept. however, these disadvantages * judr. martin hapla, ph.d.; assistant professor at department of legal theory, faculty of law, masaryk university, czech republic; email: martinhapla@gmail.com. this paper is the result of research activities supported by the czech science foundation within the framework of the grant ga čr ga20-10464s “contextual relations of justification of human rights as a problem of legal philosophy”. explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 106 must be evaluated in the context of competing approaches and theories. in the following lines, i will try to show that they too face similar problems, so alexy’s approach deserves a prominent place among the theories of justification of human rights. the structure of the whole text will correspond to the above objectives. in its first part, alexy’s explicative-existential justification of human rights will be described, and its main difficulties outlined. the second part will consider the is-ought problem in relation to human rights justification. it will show how various theories deal with it. there are, of course, many such theories. therefore, the focus will be on the three most discussed, most representative, or sophisticated – namely: basic needs approach, capability approach, and foundationalism of alan gewirth. the main objective of this part is to demonstrate that the objection that this problem is not satisfactorily addressed can be raised not only against alexy’s theory, but also against competing approaches. in the third part, the problem of the universality of the rights justified by alexy’s theories will be analyzed in more detail. 2. explicative-existential justification: alexy’s argument for human rights robert alexy focuses on justification of human rights in several of his texts, particularly in close connection with discourse theory. he defends the kantian position. this position can be classified as liberal, because it understands as a function of human rights the protection of private and public autonomy (alexy, 1996, pp. 209-210). according to alexy, there are two credible justifications of these rights: explicative and existential. however, neither can stand on its own, so they must complement each other (alexy, 2004, p. 21). explicative justification has a close connection with discourse theory (alexy, 2006, p. 21). its very name indicates that it should reveal something that is implicitly but necessarily contained in human practice (alexy, 2006, p. 19). according to alexy, discourse practice presupposes discourse rules. these rules express the ideas of equality and freedom that are the basis of human rights (alexy, 2012, p. 11). as alexy writes: “to recognize another individual as free and equal is to recognize him as autonomous. to recognize him as autonomous is to recognize him as a person. to recognize him as a person is to attribute dignity to him. attributing dignity to someone is, however, to recognize his human rights.” (alexy, 2012, p. 11) 1 alexy is aware that explicative justification alone is not enough. the first problem is that, despite all good reasons, one may not accept participation in discourse. the second is that one accepts participation, but only partially (for example, within some community but not outside of it) (alexy, 2012, p. 11).2 the third is that there may even be people who are unable to participate in the discourse at all (for example, those intellectually disabled). 1 also compare alexy, 2004, p. 20. however, some transitions that alexy makes from an individual’s autonomy to recognition as a person; from recognition as a person to attributing dignity to that person; and ultimately from the very concept of dignity to the granting of human rights, also pose difficulties. these leaps are not adequately explained in his theory 2 also compare alexy, 1996, p. 217. martin hapla the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 107 alexy had previously considered these problems in the context of discourse theory: discourse rules lead us to treat others as equal partners in the discourse, from which it cannot yet be inferred that they are to be treated as persons in other spheres. for such a conclusion to be valid, further premises must be added to this argument. depending on what precisely is supplemented, he distinguishes the argument by autonomy, consensus, and democracy (alexy, 1996, p. 222). for example, the argument of autonomy says that anyone involved in discourse assumes the autonomy of their partner, which excludes the rejection of certain human rights (alexy, 1996, p. 222). if protection of individual autonomy is necessary, then, according to alexy, the principle of autonomy corresponds to the general right to autonomy. a catalog of other special rights may be derived from such a right. certain rights can be conceived as prerequisites for acting autonomously (e.g. social rights) (alexy, 1996, p. 227). however, the argument of autonomy must be complemented by a consensus argument related to elements of impartiality and equality, as well as an argument of democracies linked to the thesis that those who are interested in democracy must also have an interest in human and fundamental rights (alexy, 1996, pp. 228-233). however, such a solution does not answer all the questions raised. why should we accept such premises? ultimately, even accepting all these premises may not compel us to grant human rights to all human beings (including the intellectually disabled, unable to participate in discourse). however, alexy responds to these problems later with his concept of existential justification. the point being that we want to see ourselves as discursive and rational beings – that we decide to be such beings (alexy, 2012, p. 12). such a decision is of an existential nature (alexy, 2006, p. 22). but why should we do it? to make this approach meaningful, does it not presuppose versions of perfectionism and essentialism? interestingly, alexy himself states that the discursive nature of a human being can be characterized as the ideal dimension of an individual (alexy, 2012, p. 12). he claims that man cannot live without argumentation. the consequent rejection of argumentation would have fatal consequences (alexy, 1996, p. 217). at this point, however, we can take over one of alexy’s earlier thoughts, which was originally related to our interest in adhering to discursive rules (alexy, 1996, pp. 218-220). even if one is not interested in understanding people as discursive beings and accepting the consequences of such a decision, he can accept them because it will be beneficial to maximize his individual benefit. but if we were to let utilitarianism enter into alexy’s theory through the back door, wouldn’t that break his intentions? thus, the key issue associated with the approach discussed is that it fails to sufficiently explain why the rights it establishes should be universally accepted.3 here, we encounter problems of acceptance and universality. 3 the requirement for universal acceptability is often associated with human rights. how could these rights be universal if someone did not have to accept them? the reviewer of this text asked an interesting question whether alexy also places such high demands on these rights. klatt points out that the necessity of alexy’s justification “is conditional upon the game of giving and asking for reasons.” (klatt, 2020, p. 169) this, of course, creates a limit to its necessity and makes it relative. at the same time, however, alexy emphasizes that we cannot live without argumentation (alexy, 1996, p. 217). i therefore conclude that alexy assumes that human rights in practice will be accepted by all because everyone sometimes participates in discourse. explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 108 3. why accept human rights: is-ought problem in human rights theories 3.1 general remarks one reason for doubts about human rights is that their justification theories have so far failed to satisfactorily address the problem of the transition from facts to norms. human rights are a normative concept, so it is absolutely acceptable to ask whether we can in some way derive them from some facts and, if not, why we must accept their normative assumptions. in general context, this question is labeled as one of the fundamental and key problems of moral philosophy (gewirth, 1973, p. 34). the first possible answer to this problem is to accept that the transition from is to ought is not possible (witkowski, 1975, p. 235). it is caused by a different function of the two spheres,4 which in the first case is related to the description of (empirical) reality and in the second case to the prescription – setting standards for what should be. in support of that position, it may also be pointed out that in a logically correct manner, a normative element which would no longer be present in an argument premise cannot be contained in its conclusion. 5 so if we pretend that we derive norms from facts, we only conceal some normative assumptions in our argumentation. so, all we can do is make our argument more transparent and explicitly formulate these assumptions, then it depends on everyone’s free will to accept them. in the above case, however, the question always remains of how to justify the norm that stands first the norm from which all other norms are derived. the validity of such a norm must be self-evident or there cannot be a generally valid standard for assessing whether something is right.6 it is not at all easy to prove that any normative concept is self-evident. this is because claims of this type have historically been manifested as misleading, and therefore even justifications, which are based on self-evidence of a concept, do not have much confidence among academics (alexy, 2004, p. 18; bobbio, 2005, p. 13; freeman, 2011, p. 68; gewirth, 1984, p. 5). a positive answer to an is-ought problem would therefore be crucial. when we derive the norm only from another (perhaps more general) norm, we only postpone the question about its justification (gewirth, 1973, p. 37). more precisely, we can continue in such questioning forever. if we put a set of facts at the beginning of our judgments, we could avoid this endless chaining. there are a number of approaches which consider that deriving norms from facts is possible.7 although valuable, a number of fundamental objections against them can be 4 compare some ideas in the text searle, 1964, p. 53. 5 in addition, alan gewirth gives several other reasons in gewirth, 1973, pp. 38-40. 6 as one possible solution, there is also a move toward coherentism, an approach that emphasizes the coherence of our beliefs. in its context, it is not necessary for the norm to be self-evident. suffice it to fit into a certain coherence set. the disadvantage of this approach, however, may be that there may be many coherent but mutually conflicting sets of beliefs. 7 gewirth, for example, distinguishes seven such approaches (gewirth, 1973, pp. 40-46). for more detailed characteristics and analysis of various theories seeking to bridge the gap between factivity and normativity, see hudson, 1969, p. 99 et. seq. martin hapla the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 109 raised (gewirth, 1973, p. 46). many of these theories are burdened with indeterminacy and do not guarantee that two persons will derive identical moral judgments from the same facts using the same mental procedures (gewirth, 1973, p. 46). others allow us to derive norms from facts only hypothetically, that is, assuming we accept a particular goal or purpose (gewirth, 1973, p.43 et. seq). they thus require prior acceptance of some normative basis. it is therefore not possible to say that some of these theories offer us a completely credible solution. in the following lines, however, we will not examine these general theories, but will focus on how alexy’s approach and other selected theories of human rights justification deal with the is-ought problem. 3.2 alexy’s justification of human rights it has already been suggested how robert alexy is dealing with the is-ought problem. at first glance, it seems that a reference to fact in alexy’s justification is not needed because it is based on the assumption that people already accept certain norms. if they are to be consistent, they must subsequently embrace human rights. what is important is that from the factual statement that we participate in discourse, we can only logically correctly deduce that we act according to its rules – not that we accept them as something valuable. if alexy’s reasoning is to be correct, we must at the very beginning accept the assumption that these rules are of high value, but that cannot be inferred solely from acting in accordance with them. even if we accept them as valid, we can attribute very little weight to them (e.g., in comparison with the requirements arising from the principle of utility). the question of their value is independent of our recognition. similarly, the attribution of human rights to all human beings requires acceptance of some normative assumptions (see part iii of this article). is the explicative part of alexy’s argument a justification? it only tells us what we do, but no longer gives us an argument why something is good. 3.3 basic needs approach and capability approach if we criticize alexy’s approach to the is-ought problem, we should compare it to how other human rights justification theories address it. they are not too successful in its solution. some of them rely on their normative assumptions to be accepted by at least most people as evident. this is true, for example, of approaches that seek the basis of human rights in various concepts of basic needs.8 one of their main representatives, david miller, argues that needs, in contrast to various interests, are capable of generating obligations. he admits, however, that this thesis is based solely on his intuition and that he is unable to adequately explain it (miller, 2012, p. 422). the problem is that need itself is a descriptive, not prescriptive, category. even if we state that we have needs, it does not imply that we also have the right to meet our needs. such a claim does not follow from any fact and if it is not accepted as self-evident, then it must be justified by something. jeremy waldron comes up with an interesting idea in this context. according to him, we strive to meet our needs. for this reason, the primary requirement that goes with 8 for the same reason, some earlier versions of these theories are strongly criticized by alan gewirth (gewirth, 1984, pp. 7-8). explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 110 them is directed toward us. it can be expressed as: “p needs x. p should try to get x for p.” (waldron, 2000, p. 123) but this idea is misleading for two reasons. first, it confuses needs with desires. undoubtedly, we tend to strive for something we desire. however, the same does not automatically apply to what we need. for example, a person may need the most to care for her health, yet she smokes cigarettes and drinks alcohol. secondly, we cannot infer from the striving of something that we should strive for it. waldron commits a common mistake here because his judgment contains a concealed normative premise that we should try to get what we are striving for (from his point of view, what we need). the capability approach of amartya sen and martha c. nussbaum suffers from similar difficulties when it comes to the justification of human rights. while the previous theory focuses on the concept of needs to be met, the concept of capability is much more related to the freedom of agents, and focuses on what a person is able to do and able to be (nussbaum, 1997, p. 285). it does not matter, therefore, that we carry out the activity itself, but rather that we are able to do it if we choose to do so. for example, everyone has a need for nutrition. if she can fulfill it, but freely chooses not to do so (e.g. she will fast for religious reasons), it is her business (nussbaum, 1997, p. 288; sen, 2005, p. 155). again, sen and nussbaum have strong intuitions that something (this time our capabilities) should be protected and guaranteed through certain rights. yet even here, one can argue that we can recognize that someone is bearer of a certain capability, but at the same time we can deny that she has the rights to any specific treatment related to it (nussbaum, 1997, pp. 295-296). even in this case, the transition from facts to norms is not properly explained and the capability approach thus faces exactly the same problem as various concepts of basic needs. 3.4 foundationalism of alan gewirth another approach to be considered here is the foundationalism of alan gewirth. it is one of the most sophisticated justification theories of human rights that still raises discussions among academics.9 interestingly, gewirth himself rejects that the argument he seeks to justify human rights is foundational, because it does not begin with a moral or evaluative statement that is conceived of as self-evident (gewirth, 1984, p. 13). on the contrary, he is convinced that his approach has not a normative but factual basis and that he (at least in the context of human rights justification) has succeeded in solving the is-ought problem. gewirth first seeks a common element of all moral principles. he identifies this in that all such principles focus on how persons should treat each other (gewirth, 1984, p. 12); so they have a common emphasis on human action (gewirth, 1978, p. 25). every moral principle is directly or indirectly related to how people should act (gewirth, 1978, p. 25). all therefore assume the existence of some actual or prospective agent (gewirth, 1984, p. 13). of importance, according to gewirth, each action has a normative structure, which implicitly includes certain evaluative and deontic judgments. these lead us to a superior moral principle. by denying it we would find ourselves in contradiction. we 9 in recent years, for example, these two authors have paid close attention to gewirth’s human rights justification (kohen, 2007, p. 38 et. seq; boylan, 2014, p. 157 et. seq.) martin hapla the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 111 would not meet the demands for deductive rationality and our moral principles would not be rationally justifiable (gewirth, 1978, p. 26, 48; gewirth, 1984, p. 12). according to him, every action has two key features (gewirth, 1978, p. 45). first, it is free or voluntary, which means that the agent controls or can control his behavior through unforced choices. second, it is purposive or intentional in the sense that the agent pursues it by the attainment of a goal which constitutes his reason for action (gewirth, 1984, p. 14; gewirth, 1978, p. 22, 27, 37; gewirth, 1973, p. 48). according to gewirth, the structure of action can be described as follows: “i do x for end or purpose e.” (gewirth, 1984, p. 14) it is a purely descriptive sentence (gewirth, 1973, p. 50). from it he deduces that “e is good.” (gewirth, 1984, p. 15) this, he says, bridges the gap between is and ought (gewirth, 1984, p. 15; gewirth, 1978, p. 57). every agent implicitly has to make an evaluative judgment that its purposes are good, and, therefore, also his freedom and wellbeing as the necessary conditions for his actions to achieve those purposes (gewirth, 1978, p. 48, 52, 53). of course, everyone can at the same time evaluate their goals from other perspectives as bad, but at least from an instrumental point of view they always consider it a good one. it is the result of his unforced choice. he confirms the good character of his actions and his goals by deciding to do them (gewirth, 1973, pp. 50-51). thus, every agent recognizes his freedom and well-being as a necessary good (gewirth, 1978, p. 62). without them, it would not be possible for him to achieve his goals (gewirth, 1973, pp. 50-52). in such a case, however, according to gewirth, he must logically accept that he has a right to these generic features (gewirth, 1978, p. 48, 63; gewirth, 1973, p. 52). he must therefore state, on the basis of his prudential criteria, that others must at least not interfere with his freedom and well-being (gewirth, 1978, p. 66; gewirth, 1973, pp. 52-53). however, such rights are prudential and not moral (gewirth, 1984, p. 16). to change their character in this respect, we need to take one more step: according to gewirth, i have the right to freedom and well-being because i am a prospective purposive agent. if i reject this, i should mention some other characteristic that gives me these rights. otherwise, i must attribute the same rights to everyone who fulfills the same condition – that is, they are also agents in that sense. this requirement follows from the principle of universalization (gewirth, 1978, p. 48; gewirth, 1973, p. 54). along with that, i have to accept that i have to refrain from interfering with these rights attributed to other agents (gewirth, 1973 p. 57). these rights thus become moral (gewirth, 1984, pp. 16-17). since freedom and the wellbeing of the agent include certain physical and psychological dispositions such as life, physical integrity (and its means such as nourishment, clothing, shelter), mental balance, etc., (gewirth, 1978, p. 54) human rights thus gain sufficient scope and are capable of incorporating most of the rights contained in the current positivized catalogs of rights. this theory, of course, has its critics.10 the fact that gewirth managed to solve the is-ought problem is rejected, for example, by paul allen (allen, 1982, p. 211, 223). according to him, gewirth’s steps would logically be correct if we understood them 10 a number of other criticisms can be raised against gewirth’s theory. one example is about a known patient in a permanent and irreversible vegetative state that can never be a normative agent and therefore should not have any human rights under this approach. (hapla, 2016, p. 110). explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 112 all as descriptive, or prescriptive sentences. he refuses, however, that gewirth could successfully bridge the gap between is and ought (allen, 1982, p. 215). gewirth does not at all justify the transition from the descriptive sentence “the agent recognizes that the purpose of his actions is good.” to the evaluative judgment, “my purpose is good.” it would be correct to infer from his premise that the agent has a certain state of mind, that is, to derive a statement like, “i must think that the purpose of e is good.” instead, gewirth incorrectly derives value judgment from it (allen, 1982, p. 217). if, as a starting point for his reasoning, he only takes some fact, then he is at most able to deduce that the agent has a state of mind in which he recognizes that his actions are good (allen, 1982, p. 218). according to allen, his reasoning blurs the distinction between the description of the prescription and the prescription itself (allen, 1982, p. 219). gewirth then makes the same mistake in other parts of his judgment (allen, 1982, p. 221). his argument thus contains several concealed normative premises (allen, 1982, pp. 223-224). another philosopher who criticizes gewirth is w. d. hudson. he again focused on the transition to the prescriptive judgement “e is good.” he criticizes gewirth for a similar mistake criticized by allen, but already formulates gewirth’s possible answer: “[d]ialectical method leaves no room for any such distinction. from the standpoint of the agent, what is thought good cannot be contrasted with what is good; the question whether the former is the same as the latter is not an open one.” (hudson, 1984, 116) such an answer would make sense. hudson, however, notices another mistake. there is still one question open, even from the standpoint of the agent (hudson, 1984, p. 123). he literally writes: “namely, is it good that i do x for purpose e? this question may mean either of two things. first, it may mean, even though i think e good, is it good that i am doing x for the sake of e? the answer to this may be no. i may will the end but not the means, approve my purpose but not the action whose purpose it is. but, second, the question may mean, is it good that i think purpose e good? and again the answer may be no. i may evaluate negatively my own positive evaluation of e. i may wish i were an agent who wanted other things.” (hudson, 1984, p. 123) an agent can therefore evaluate his own evaluation (hudson, 1984, p. 124). gewirth does not seem to provide a completely satisfactory answer to this. even this approach, despite its sophistication, is thus unable to cross the gap between is and ought. even in this case, we must first accept certain normative assumptions in order to be logically correct. despite the above, many pluses must be added to the approach analyzed. it explicitly and in detail describes many steps that are not sufficiently discussed in other justification theories of human rights. at the same time its normative assumptions can be considered minimalist. emphasis on the elements that are a prerequisite for all morals, and a requirement for consistency, puts this theory on a not-so-unshakable, but relatively solid foundation, compared to many other competing approaches. if i accept morality, i should also accept human rights or i logically contradict myself. if i accept being an agent with all the consequences, i must take these rights seriously. 3.5 the best possible, not perfect justification it seems that even the most sophisticated justification theories fail to cope with the transition from facts to norms. if we are to consider the procedures presented by them to martin hapla the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 113 be logically correct, we must always identify within them the normative premises which must be accepted. at first glance, this appears to be a serious defect. how could justification of human rights be successful if it does not even fulfill the necessary condition of logical correctness? however, if we consider possible alternatives to these rights, will it not be possible to address this complaint against all approaches? in any situation, we can ask why it is right to accept or reject something. if the transition from is to ought is impossible, not only in the context of human rights justification but also in general, it cannot testify to their detriment in relation to other theories. when considering what to accept, whether these rights, or something else, the reasons for our response must lie in something other than how successful such a concept is in solving an is-ought problem. the ideal situation from the point of view of the defense of human rights would be if there were a general consensus on our normative assumptions, and any disputes would only be due to the logically erroneous judgments derived from them or to the addition of false empirical premises.11 alternatively, if it were shown that the same idea of human rights could be correctly achieved even from the different normative assumptions we have.12 however, it is also possible that we are based on very different assumptions that can lead us to very different conceptions, many of which will have nothing to do with these rights. this is the most pessimistic option. nevertheless, we have nothing better than to formulate our normative premises openly and to discuss them and what they imply. confronting different approaches and arguments is the best possible guarantee of the quality of the winning position. such justification will never be absolute, but will be optimal as far as possible. concepts against which alternatives are not formulated are at high risk of becoming lazy. that is why i am concerned not that the justification of human rights cannot fulfill any absolute demands, but that we can hardly find anyone in today’s world to come up with a truly sophisticated concept that competes with those rights. conversely, criticizing them from the absolute perspective may be a symptom that there are no serious alternatives to which they could be compared. 4. problem of universalization: rights of human beings or human persons? by definition, human rights are considered to belong to all human beings (donnelly, 2013, p. 10; feinberg, 1992, p. 154; freeman, 2011, pp. 66-67; gewirth, 1984, p. 1; kohen, 2005, p. 6). they should therefore be universal in the sense that they belong to everyone without distinction. however, not every theory of justification of human rights is capable of justifying them to this extent. let’s stay with alexy’s theory first. if we accept performative contradiction as its starting point, then nothing compels us to grant human rights to all human beings. from trying to persuade someone by reasoning, we can infer that we at the moment recognize 11 i do not present these considerations as a solution to the is-ought problem. i only describe possible factual situations and evaluate them in terms of the goal of defending human rights. 12 this idea corresponds to rawls’ concept of overlapping consensus (rawls, 2005, p. 133 et. seq.) explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 114 her as a rational and autonomous being. however, the same logic no longer forces us to apply this recognition to other people, or even to the same person in other situations. to extend the validity of alexy’s reasoning in this way, we had to supplement it with the argument of universalization: we would have to ask ourselves what characteristics we attribute to human rights to someone, and then confess them to all who possess that characteristic. it could be our ability to participate in discourse. in this case, however, there remains a group of human beings who cannot participate and therefore should not be holders of human rights. moreover, such an extension of the original reasoning deprives it of its previous elegance. while originally it was based on our own actions, it now becomes the attribution of some ability to people. alexy himself tries to solve these problems by adding the existential component to the explicative justification, which cannot be considered too convincing for the reasons described above. however, other justification theories of human rights suffer from very similar problems. gewirth’s theory, for example, has traditionally been criticized for establishing the rights of persons rather than the rights of human beings (renzo, 2015, p. 64; kohen, 2005, p. 64). for example, a patient in a permanent and irreversible vegetative state is no longer a normative agent, nor will he ever be. so why should he be a human rights bearer? (hapla, 2016, p. 110) however, according to massimo renzo, theories of basic needs can solve this problem satisfactorily (renzo, 2015, p. 575, 577). these people are not normative agents, but they certainly have needs. personally, i am skeptical about renzo’s theory. how do people’s needs in a coma differ from those of animals or plants? while renzo emphasizes in his text that human biological needs also have a social dimension, (renzo, 2015, p. 584) this is not the case with such people. if we wanted to conclude that even a human in a permanent and irreversible vegetative state is a bearer of human rights, while an animal is not, we would have to go for some kind of essentialism and approach that has religious roots (hapla, 2018, p. 9). so, it seems that the complaint we can make about the universal nature of human rights against alexy’s approach is equally relevant to most competing theories. it is therefore worth considering whether the attribution of human rights to such patients is justified at all. of course, this is not to say that positive law should not grant them certain rights. however, it will do so for reasons other than that of certain universal moral rights. conclusion it is true that alexy’s explicative-existential justification fails to deal with some serious problems. however, if we compare it to other theories of human rights justification, we find that the same complaints can be directed against them. in addition, it is very likely that even theories justifying concepts competing against these rights would have trouble solving the is-ought problem. this problem is of a general nature. if we evaluate the strengths and weaknesses of alexy’s approach, we must be well aware of this context. the appreciation should be given to an explicative argument and the link between the concept of human rights and discursive theory rather than its existential justification, which is purely speculative. alexy builds on kant’s tradition and thus adds one very martin hapla the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 115 important stone to the construction of the justification of human rights. however, this must be seen as a task for many other theories. it is useful here to build on rawls’ idea of overlapping consensus and show that we can defend human rights on the basis of not one, but all of the most important ethical theories. in the context of kant’s, alexy makes a good contribution to this. this is its unmistakable importance. references alexy, r. 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(2014) natural human rights: a theory. cambridge: cambridge university press. donnelly, j. (2013) universal human rights in theory and practice. 3rd edition. ithaca and london: cornell university press. feinberg, j. (1992) ‘in defence of moral rights’ oxford journal of legal studies, 12 (2), pp. 149-169. https://doi.org/10.1093/ojls/12.2.149 freeman, m. (2011) human rights. an interdisciplinary approach. 2nd ed. cambridge: polity press. gewirth, a. (1973) ‘the ‘is-ought’ problem resolved’ proceedings and addresses of the american philosophical association, 47, pp. 34-61. https://doi.org/10.2307/3129900 gewirth, a. (1978) reason and morality. chicago and london: the university pf chicago press. gewirth, a. (1984) ‘the epistemology of human rights’ social philosophy & policy, 1 (2), pp. 1-24. https://doi.org/10.1017/s0265052500003836 hapla, m. (2016) lidská práva bez metafyziky: legitimita v (post)moderní době. brno: masarykova univerzita. explicative-existential justification of human rights. analysis of robert alexy’s... the age of human rights journal, 15 (december 2020) pp. 105-116 issn: 2340-9592 doi: 10.17561/tahrj.v15.5780 116 hapla, m. (2018) ‘theory of needs as justification of human rights: current approaches and problems of uncertainty and normativeness’ the age of human rights journal, 6 (10), pp. 1-21. https://doi.org/10.17561/tahrj.n10.1 hudson, w. d. (1984) ‘the ‘is-ought’ problem resolved?‘ in regis jr, e. (ed.). gewirth’s ethical rationalism. chicago and london: the university of chicago press. hudson, w. d. (ed.) (1969) the is-ought question. a collection of papers on the central problem in moral philosophy. london: macmillan and co. klatt, m. (2020) ‘proportionality and justification’ in herlin-karnell, e. and klatt, m. (eds.). constitutionalism justified. rainer forst in discourse. new york: oxford university press, pp. 159-196. https://doi.org/10.1093/oso/9780190889050 .003 .0008 kohen, a. (2005) ‘the possibility of secular human rights: alan gewirth and the principle of generic consistency’ human rights review, 7 (1), pp. 49-75. https:// doi.org/10.1007/s12142-005-1002-3 kohen, a. (2007) in defense of human rights: a non-religious grounding in a pluralistic world. london: routledge. https://doi.org/10.4324/9780203963760 miller, d. (2012) ‘grounding human rights’ critical review of international social and political philosophy, 15 (4), pp. 407-427. https://doi.org/10.1080/13698230.2012.699396 nussbaum, m. c. (1997) ‘capabilities and human rights’ fordham law review, 66 (2), pp. 273-300. rawls, j. (2005) political liberalism. expanded edition. new york: columbia university press. renzo, m. (2015) ‘human needs, human rights’ in cruft, r., liao s. m., renzo, m. (eds.). philosophical foundations of human rights. 1st edition. oxford: oxford university press, pp. 570-587. https://doi.org/10.1093/acprof:oso/9780199688623.003.0033 searle, j. r. (1964) ‘how to derive “ought” from “is“’ the philosophical review, 73 (1), pp. 43-58. https://doi.org/10.2307/2183201 sen, a. (2004) ‘elements of a theory of human rights’ philosophy & public affairs, 32 (4), pp. 315-356. https://doi.org/10.1111/j.1088-4963.2004.00017.x sen, a. (2005) ‘human rights and capabilities’ journal of human development, 6 (2), pp. 151-166. https://doi.org/10.1080/14649880500120491 waldron, j. (2000) ‘the role of rights in practical reasoning: “rights” versus “needs”’ the journal of ethics, 4 (1/2), pp. 115-135. https://doi. org/10.1023/a:1009860320069 witkowski, k. (1975) ‘the “is-ought” gap: deduction or justification?’ philosophy and phenomenological research, 36 (2), pp. 233-245. https://doi.org/10.2307/2107056 received: march 23rd 2020 accepted: july 28th 2020 articles martin hapla explicative-existential justification of human rights. analysis of robert alexy’s argument in context of is-ought problem 1. introduction 2. explicative-existential justification: alexy’s argument for human rights 3. why accept human rights: is-ought problem in human rights theories 3.1 general remarks 3.2 alexy’s justification of human rights 3.3 basic needs approach and capability approach 3.4 foundationalism of alan gewirth 3.5 the best possible, not perfect justification 4. problem of universalization: rights of human beings or human persons? conclusion references the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 1 questions on theory of law in international human rights law carlos r. fernández liesa1 abstract: the objective of this paper is to examine some specific question on the theory of law in international human rights law. international human rights law has played an important role in the evolution of international law. there are different ways of approaching and understanding international law, different schools and certain central theoretical questions. this paper tackles theoretical questions within international law in the light of international law of human rights, such as the questions of hierarchy, unity, coherence, structure, time, power, justice and legitimacy. furthemore, analyse theoretical horizons, like the question evolution/revolution, progression/regression, justiciability, sustainability and efficacity keywords: international human rights. theory of law. unity of international law. international courts. justice in international law. legality and legitimacy. sustainability of international human rights. effectiveness summary: 1. introduction. 2. international legal order and international human rights. 2.1. human rights hierarchy and norms. 2.2. unity of international law and human rights. 2.3. coherence and the proliferation of courts. 2.4. the structure of order: sources and subjects. 2.5. time and law. 2.6. power and law. 3. justice and ihrl. 3.1. the notion of justice. 3.2. justice, utopia and cosmopolitism. 3.3. legality and legitimacy. 4. theoretical horizons of international human rights law. 4.1. evolution or revolution. 4.2. justiciability and legality. 4.3. sustainibility: progression or regression of human rights. 4.4. effectiveness 1. introduction the relationship between state and law has influenced jurists way of thinking (latorre, 1968). within the international community, the absence of a higher power akin to that of the state means that analysis cannot be based on those same premises. kelsen between others ( kelsen 1949, 131; kolb, 2000, 101; virally, 1990, 91; campbell, 1988, 144 ss) indicates that international law (il) is a primitive order. most of the doctrine puts forward a different view. in the international criminal tribunal for the former yugoslavia, the defence for the first defendant, duško tadić, raised the prejudicial question that the tribunal could not judge him because it has been created after the events, which would infringe the defendant’s right to be judged by a tribunal established by law, as recognised in article 14.5 of the international covenant on civil and political rights. however, the international tribunal ratified the legality of the decision that created it, taking into account the differences between the international community and those of a state (fernández liesa, 1996, 11-44). 1 professor of public international law. instituto de estudios internacionales y europeos francisco de vitoria. universidad carlos iii de madrid, spain (carlos@inst.uc3m.es) (project ods, human rights and international law. pgc 2018-095805-b-100) questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 2 this article will examine key questions in international law from the perspective of international human rights law (ihrl), which are a specific and/or autonomous section of international law, having played a very important role in the evolution thereof, contributing to the mitigation of their state voluntarism, without sweeping away the role of consent (cohen-jonathan, 2001, 307). there are many different ways of approaching and understanding international law, different schools, and certain central theoretical questions (bianchi, 2016, 316; kolb, 2016, 475). most of the doctrine does not tackle such questions, in a post-ontological position that gained ground from the latter half of the 20th century onwards (ago, 1965, 845). this paper tackles certain theoretical questions within international law, in the light of ihrl. hardly any studies have taken this angle, since most analysis of ihrl focuses on progressive development and coding, on mechanisms and systems of protection, and on current affairs. 2. international legal order and international human rights 2.1. human rights hierarchy and norms the norms or ius cogens changed the meaning of international order, introducing normative hierarchy. recognised by article 53 of the vienna convention on the law of treaties, as well as doctrine and international jurisprudence, these are superior rules in the hierarchy given their importance for the international community (yasseen, 1975, 204; schwarzenberger, g., 1965,456; macdonald, 1987, 132). the vast majority of these rules pertain to international human rights law. they express the fundamental values of the international community, protected by rules that make up an international public order. the hierarchy established has eroded the classic, voluntarist, bilateralist and subjectivist vision, limiting relativism and favouring objectivism (carrillo salcedo, 1997, 596). ius strictum or preceptivum protects the most essential interests of the international community, unlike erga omnes, norms that protect collective interests. all norms of ius cogens are erga omnes, but the reverse is not true. relativism is overcome through the acceptance of the international community of states as a whole, which does not mean accepting an iusnaturalist approach, but rather that it exists in the legal system. ius cogens does not entail a return to natural law. as indicated by weil, “these are not values imposed on states by higher bodies, but legal norms inspired by ethical and sociological considerations, whose normative character is endogenous” (weil, 1992, 267). the apparently unsolvable contradiction exists between a conception of international law based on the supremacy of accord and a notion of ius cogens defined as rules that defy accord. however, the consensualist foundation and origin of ius cogens does not require unanimous acceptance, only that of a majority of states (the international community of states as a whole, as set out in the aforementioned article 53), sufficiently representative of the ic, which recognises the imperative nature thereof. in short, there must be consensus (chaumont, 1970, 370). there is undoubtedly an opinio iuris cogentis regarding the imperative nature of the norm prohibiting racial discrimination and apartheid, genocide, the slave trade, or which carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 3 recognises the right not to be subjected to torture and/or inhumane or degrading treatment, the intransgressible principles of international humanitarian law, or the obligation to respect the law of free self-determination, among other rules that make up ihrl. there is debate regarding ius cogens but there is a hard core of laws that are included therein and that have introduced a hierarchy into international law, as well as additional consequences in cases of serious violations, visible in the draft articles on the responsibility of states for internationally wrongful acts adopted by the international law commission (ilc) in 2001. 2.2. unity of international law and human rights all legal order is unitary and has a fundamental norm in which its unity resides (bobbio, 1992, 173). however, its decentralised nature, and the reciprocity and relativism inherent to international order has raised the issue of whether it constitutes a system or, in the words of combacau (1986, 86) a bric-à-brac. in our view, human rights are a central component of that unity. an order would lack unity if it could be considered a set of disconnected individual units (canaris, 1998, 19). a formal approach has traditionally been taken with regard to the notion of unity (fernández liesa, 2002, p. 265). kelsen estimated that the problem of the unity of il norms is equivalent to the problem of constituting legal order or of the international community. it is the fundamental hypothetical rule that organises it, the ultimate source of unity in the plurality of all norms that comprise an order. hart understands unity based on the structural assumption regarding the concept of law as the union of primary and secondary rules. the unity of the system is achieved through the combination of a structure based on primary norms, secondary norms with their rules of exchange and allocation, and a rule of recognition at the apex. secondary norms are norms about norms, meaning that they refer to the determination, introduction, elimination, amendment and violation of primary norms. the unity of legal order is grounded in the rule of recognition, positive norm, and not a mere working hypothesis (kelsen, 1939, 37; hart, 1961, 99; casanovas, 1999, 58). if we approach unity in informal material terms, it could be viewed from the existence of universal primary norms. some authors feel it to be unnecessary, because the unity of the legal system would imply only the existence of injonctions and contraintes (wengler, 1975, 329). this thesis is no longer defensible, although it may be conceivable as a theoretical model. consideration of the formal aspects (the international community of states as a whole accepts the existence of primary and secondary norms) and material aspects of unity (the international community of states as a whole accepts as mandatory in law a series of principles and values that are considered universal and superior) posits the existence of primary general norms of international law with universal scope, validity, and primacy over all other norms in the legal order. the distinction between formal and material unity can be drawn today in il. and, because of its content, material unity introduces a moral dimension into il, acknowledged by the international community. from this perspective, the basic norm of international law has a dual aspect, formal and material, and this latter component comprises criteria of legalised morality, which are the parameters for judging the validity of the normative questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 4 whole. in this regard, the theory developed by peces-barba is very apropos, stating that the basic norm for identifying norms (norms of authority, validity criteria, norms on the production of norms, which enable a systematic construction of a legal order and are a reference for its unity) not only has the appearance of a basic norm, which encompasses moral criteria of validity. hence, the validity of law, the pertinence of norms with regard to the legal order, will be achieved by verifying the suitability of each norm in terms of those formal and material criteria. whereas, within internal legal orders, the basic material norm that incorporates that dimension of morality appears in the essential core of constitutions, in the form of values, principles of organisation and normative production, interpretation and fundamental rights, within the international legal order, it appears within the universal dimension, in obligations erga omnes, and, at its essential core, in norms of ius cogens. hence, a treaty that is contrary to a rule of ius cogens, for example one that establishes the trafficking of human beings, is considered null and void. the international community recognises certain fundamental universal values of coexistence that are revealed in fundamental principles and developed in legal norms. from this perspective, international order has material unity, and to use hartian terminology, contains primary universal rules, which implies that the international community of states has recognised as universally binding a hardcore of principles and rules of il, an international public order, in which, among other things, the rules of ius cogens, which pertain fundamentally to human rights, could be inscribed. 2.3. coherence and the proliferation of courts the proliferation of courts appeared to jeopardise the coherence of international order. the autonomy of the courts and the absence of hierarchy among them without a supreme court created the image of international law as a set of autonomous subsystems equipped with jurisdictional systems that would function independently of the general international system. however, courts are not independent of general international law. the international law commission (ilc) analysed the risks of fragmentation of international law (hafner, 2000). conforti (2007, 5), rivier (2006, 304) and fernández liesa (2009, 25) felt that it was more a work of doctrine than of codification. the fact that codification has been fruitless does not mean this work was pointless. it emphasises the role of doctrine in the interpretation of law in complex situations. the main conclusion is that legal certainty, predictability, and equality between subjects of law have not been compromised. the techniques of lex specialis, lex posterior derogat prior, inter se agreements and the acknowledged superiority of imperative norms as well as the notion of “obligations owed to the international community as a whole” provide an elementary “tool box” to respond to the most fundamental problems posed by fragmentation. a transition (para. 487 ss, conclusions cdi) is effected, from a world fragmented into sovereign states to a world fragmented into specialised regimes. conflict is inevitable since (second conclusion, para. 492) “there is no standardised hierarchical meta-system to eliminate problems”. an carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 5 increasingly complex phenomenon has developed, affecting the absolute homogeneity of legal order, which could lead to inconsistencies and conflicts. pluralism and coherence are in tension with one another. but the essential question is whether conflicts can be resolved through the instruments of international legal order. the ilc’s central response is affirmative. states have never had a higher body to resolve their conflicts (the old adage of par im parem imperium non habet). the ilc states that normative conflict is endemic in international law and that new conflicts between regimes can be overcome with existing law. no response to any conflict can be given in an abstract and automatic manner, but rather must be approached in view of the rules applicable to the interpretation of treaties. there are dialogues and clashes between international courts. we see this between the supreme and constitutional courts (in spain), or between these (repeatedly the german constitutional court) and the european court of justice, or between the european court of human rights and the european court of justice. the communicating vessels phenomenon and friction are inherent to any international community, where each court is a self contained system. underlying these clashes is the tension between sovereignty and human rights, and who is the ultimate guarantor of these rights, a role that states continue to play at this current point in the evolution of international order. 2.4. the structure of order: sources and subjects the humanisation of international law has changed the structure of the system, with regard to the modes of production and its subjects. along with the appearance of categories such as ius cogens, the principle of non-formalism has given a great deal of relevance to advisory soft law. recent advances in human rights have been made through soft law instruments such as the global compact for migration (2018), the sustainable development goals (2015) or the guiding principles for business and human rights (2011). this is also true of the past, as demonstrated by the universal declaration of human rights of 10 december 1948, or res. 2625, on the principles guiding relationships between states, described by r j dupuy (1987, 265) as “codification résolutionaire”. the 1948 declaration was a starting point that today has enabled the processes of universalisation, regionalisation and specification. recommendations can have a declarative, incitative of instigating a path that will lead to a subsequent norm or crystallising effect (jiménez de arechaga, 1977, 381; abi-saab, 1968, 24). that is why soft law is highly relevant, from a legal perspective, in a nomogenetic process, in the interpretation of norms, in guiding behaviour and in transforming opinio iuris (thierry, 1990, 30; bothe, 1980, 65; schachter, 1977, 296; chinkin, c., 1989, 850; eisenmann, 1979, 326; virally, 1983, 166). the important thing is to prove the intention of states to abide (rezek, 1996, 269). international law is formed through a stratification of successive commitments, by generations, which are not related to the nature of rights but to the point in time at which they emerged. taking human rights seriously involves drawing a distinction between lex lata and lex ferenda. questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 6 the lack of formalism has allowed consensus generalis and not just express individual consent to become relevant in international law, both in relation to general custom and in categories such as ius cogens. the recent proliferation of self-regulation mechanisms (for example in the field of multinational enterprises and human rights) raises the question of whether il is being downgraded or whether this reflects progress in the progressive development of international law. there is open debate about issues such as the relevance of the international practice of non-state actors themselves in the evolution of il and ihrl. the fact is that the relevant practice is that of state actors. however, the practices of non-state actors are increasingly invoked to confirm the existence of customary norms or to analyse the law applicable to a particular situation. within the framework of the norms of ius cogens, only state practice has been considered relevant. however, the ilc expressly acknowledges that the attitude of nsa could be relevant in assessing the position of states. other issues could be addressed on the specificities that human rights have brought to conventional law, such as those relating to the succession of states in rights treaties (and the so-called principle of automatic succession), as opposed to the tabula rasa thesis; or discussions on the reportability of human rights treaties or the scope and conditions of validity of reservations, which exceed the scope of this brief analysis, but that show the changes that have taken place in the law of treaties as a consequence of human rights. the classic interstatism of international law is overcome through recognition of the international subjectivity of the individual. the recent emergence of non-state actors (fernández liesa, 2019, 117) has highlighted the inadequacy of classic approaches. human rights have been built on the idea of limiting the power of the state vis-à-vis the individual, or guaranteeing a minimum level of state provision afforded to individuals. however, the state-person dyad is insufficient to ensure the effectiveness of human rights. the criteria of international subjectivity (dominicé, 1996, 147) have been very restrictive, considering that personality can be an attribute of sovereignty. however, recognising the international subjectivity of a multinational company for the purpose of being bound by ihrl might fix problems without creating new ones. in the cases cited (individual, transnational company), the acquisition of international personality derives from recognition by the community of states, at least implicitly, either through the fulfilment of state contracts (by companies), or through the recognition of human rights or responsibilities (and means of enforceability, in the case of individuals). there are also shortcomings in the current international liability regime, which is the epicentre of any legal system there are legal loopholes in the recommended principles and guidelines on human rights and human trafficking, the basic principles of justice for victims of crime and abuse of power, and the guiding principles on business and human rights, with regard to the bonds of responsibility between non-state actors and victims of violations, given the state-centred or interstate structure of the international system (iñigo alvarez, 2016, 16). carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 7 2.5. time and law historical injustices are serious human rights violations that continue to be relevant today. international order includes issues such as transitional justice, colonial domination, slavery, genocide and crimes against humanity of the past, imperialism, subjugation of peoples (such as indigenous peoples), and nazism. certain transitional justice processes in latin america (in argentina, brazil, colombia, el salvador, guatemala, haiti, uruguay, honduras, chile, and peru) led to important jurisprudence on the nullity of state norms contrary to international ius cogens, including, among others, the famous cases tried in the inter-american court of human rights, barrios altos v. peru (2001), moiwana v. surinam (2005), almonacid v. chile (2006), and julia gomes lund (araguaria guerilla) v. brazil (2010). the right to truth is becoming an autonomous right within the international system (ferrer, 2016, 151). but this new jurisprudence does not apply to historical situations, when the appearance of crimes against humanity as a concept is subsequent to the violation, in a jurisprudence that is in accordance with the interpretation of judicial bodies and international control mechanisms, in addition to concurring with any interpretation of the general principles of law (fernández liesa, 2014). the tempus regit actum (intertemporal law) rule is applicable to ihrl, except in situations that are still ongoing, such as a community of people with the right to self-determination on 27th march 2012, the european court of human rights rejected a lawsuit presented by two relatives of a person who had disappeared in the civil war, stating, without going into detail, that the suit had been filed outside the legal period for doing so (case n 30141/09, echr, 27/iii/2012, gutiérrez dorado y dorado ortiz). in july of 1936, julio dorado duque, a spanish mp representing the psoe political party, was arrested by members of the army, along with another mp and the british consul in malaga, and later disappeared . in the eyes of the echr (para 35 ss), in light of the principle of legal certainty, the jurisdiction of the tribunal, for reasons of time, with respect to the fulfilment of procedural obligations arising from events that occurred before the critical date (entry into force of the echr), cannot be interpreted extensively. in such cases, historical memory or diplomacy is more relevant. this does not mean that they have no legal relevance, since there are reparations for historical injustices (boisson de chazournes, 2004, 397), as stated in the durban declaration (2001). all western states are guilty of such historical injustices in their past. in the case of spain, and in other countries, there are phenomena such as slavery, the treatment of minorities and the gitano roma people, which have still not been acknowledged, and no reparations have been made (fernández liesa, 2013). the major human rights violations perpetrated by nazism are still part of the diplomacy and international politics of the present. on 1/ix/2019, steinmeier, the president of germany, asked poland for forgiveness (“we shall accept the responsibility that history has imposed on us”); days later poland called for “economic compensation”, but germany refused, indicating that reparations had been resolved in a 1953 agreement with the german democratic republic. these situations questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 8 give rise to measures of economic reparations, recognition of the facts, memory of the victims, excuses or requests for forgiveness. the same occurred with pope francis in relation to the work of the church during colonisation and with indigenous peoples; serbia in relation to bosnia by srebrenica in 1995; the un for fleeing the genocide in rwanda; australia and canada with indigenous peoples. obama (26/9/2016) chaired the white house tribal nations conference and indicated that “we restored more than 428,000 acres of tribal homelands to their original owners”. he also visited hiroshima on 27/5/2016, although he did not apologise for the war decision. in 2004, germany apologised for the massacres against the herero tribe in namibia. belgium has not done enough about the genocide in the belgian congo, one of the most atrocious in human history, alongside the holocaust 2.6. power and law power is the ability to influence (fernández liesa, 2008, 448; cassese, 1986, 22; peces-barba et al., 1999, 100). we see this in its most brutal expression in guantanamo bay or in the abu ghraib tortures. also in national conceptions of international law, in the dominant ideology of each historical period (balance, globalisation), in the creation and application of norms, in the relevance of the principle of effectiveness, in the settlement of disputes, in the functioning of international institutions and in the interpretation of norms. in a democratic state, the power-law-justice (ethics) relationship is structured through the constitutional organisation of powers, through the values and principles of order, and through human rights (peces-barba, 1993, 14). but we cannot transfer this logic to the international community. contents such as human rights or the right to development are part of an ideal of justice. humanisation of international order is reflected in the penetration of values that are not part of the logic of power. but power also influences the creation and application of international human rights law. for example, the treaties concluded in the late nineteenth century between africa and the european states and representatives of indigenous peoples (kamto, 2007, 455) reflect the ideology of the time, colonial power, and the assumed superiority of europeans. in spite of appearances, they were not treaties between equals, but rather an act of internal organisation within a colonial territory, a manifestation of imperial power. a more current example is the assassination of khashoggi at the saudi consulate in istanbul when he went to pick up the paperwork for his impending marriage. a member of a wellknown saudi family, khashoggi was a columnist for the washington post who criticised the emirate. he was assassinated by a saudi hit team, apparently sent by the crown prince of saudi arabia, prince bin salman. should the united nations, the european union or the states impose sanctions against saudi arabia?. in the end, this matter dissolved on account of individual interests. there are many examples of how power weakens the application of international human rights law. the suppression of spanish universal jurisdiction to pursue major carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 9 human rights violations came about due to the tension between interests and values, which eventually eliminated it through the reforms of 2009 and 2014 on account of the problems it engendered in spain’s relations with china, the united states and the united kingdom. all of this shows that the relationship between law and power is complementary and dialectical. power is not always above the law, nor is the law always above power; rather, there is a dialectical relationship between the two. in spite of these examples, human rights have gradually transformed the reality of international relations and place restraints on the behaviour of states. 3. justice and international human rights laws 3.1. the notion of justice and ihrl is the role of justice in international society predictable in international law?. in international society, justice is not derived from the existence of a legitimate power that generates fair law (fernández liesa, 2006, 171) . hence, this matter must be analysed from other perspectives, within the international system. the idea of justice has played a very important role in iusnaturalistic conceptions, in the work of authors such as fiore, verdross, boegner. a. cançado trindade, a contemporary advocate of iusnaturalism, sees it as a child of natural law, which would be the only category that, in his view, guarantees the universality of ius gentium and contributes to the survival of humanity (cançado trindade, 2012, 49). but law exists regardless of the recognition of a particular conception of justice; so, morality that is not enshrined in law is not law. in the case of south west africa, the icj found that humanitarian considerations may inspire rules of law, but that “such considerations are not in themselves rules of law. in order to generate legal rights and obligations it must have legal expression and form”(icj, rec. 1966, pár 49). the name of law cannot be denied because a current system or (unfair) norm does not embody (our) understanding of justice. similarly, the validity and efficacy of a norm do not depend on axiological postulates, unless it has been enacted by the relevant channels in the international system, is in force, and effective. in this regard, kelsen’s stance that the validity of norms does not depend on their content is pertinent (kelsen, 1939, 39). kelsen refuted the existence of values, of a formula for justice that is valid for all times and places, immutable, unique, and universal (kelsen, 1992). international morality may constitute the ideological foundation that makes it possible to claim normative changes, as was the case with the new international economic order, but morality cannot on its own substantiate normative changes. the vision expressed by e. díaz, stating that any legal order represents a perspective on the idea of justice (díaz, 1980, 385) and that there are criteria of justice for a given time that have rational objectivity would appear to be more accurate. the evolution of il highlights how values have expanded beyond legal certainty and equality to encompass peace, dignity and solidarity; moreover, ius cogens has placed certain human rights at the questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 10 apex. furthermore, the ethical dimension of the fundamental principles of contemporary international law, or the general principles of law, similarly cannot be denied within international law (good faith, abuse of law, pacta sunt servanda, obligation to repair). in contrast to iusnaturalism, voluntarism and positivism currents moved away from values, seeking the notion of obligation in the will of states, either explicitly or implicitly. 19th century scientism sought to elevate law to the dignity of science, an aspiration we have moved beyond today, not only as a result of kirchmann’s famous attacks but because the law cannot be detached from reality (latorre, 1992, 112). hence, as kirchmann points out in his famous study jurisprudence is not science, in 1848 (regarding the lack of value of jurisprudence as science): “positive law has turned jurists into worms that only live off rotten wood, deviating from the healthy, they their make their nest in the diseased. as soon as science turns the contingent into its object, it becomes contingency itself; three rectifying words from the legislator make trash of entire libraries”. however, is it important to maintain a vision of the foundation in order to understand international human rights law. there are conciliatory theories between the extremes, such as deontological isusnaturalism (fernández, 1999, 288), which is probably the most widely accepted by the doctrine of human rights, albeit unconsciously. deontological isusnaturalism is compatible with critical positivism. it is possible to be positivist and defend values from that perspective, without returning to an iusnaturalist conception (dominicé, 1997, 31). as noted by peces-barba (1995, 165) this corrected positivism is grounded in the notion that the basic norm for the identification of norms incorporates a dimension of morality into the constitution; at the essential core there are values, principles of organisation and fundamental rights. deontological isusnaturalism is compatible with moderate positivism, consensual theory, and the acceptance that the basis for the binding nature of the system and its principles and norms lies in the general consensus of the international community, and in consent to specific norms (treaties, customs etc..). we find this position to be the most appropriate, allowing the norms of il to be assessed from an axiological perspective, while morality and values are not criteria of incorporation into the legal order, in the absence of consent. hence, the principle of consent is relevant and introduces a large helping of relativism. 3.2. justice, utopia and cosmopolitanism international law has adopted a finalist and transformative pro-human rights approach, as a means of overcoming the distribution of kelsenian competences, which would be its minimum function. it is not a neutral order in terms of its purposes. ihrl has an indebted finalist orientation from a utopian perspective and in terms of the cosmopolitan spirit. utopia and the cosmopolitan spirit exist within many iusinternationalists. cosmopolitanism (frouville 2015, 11; rodrigo, 2016a, 29, 2016b) is a universalist mood of solidarity, arguing in favour of notions such as global citizenship. in this spirit, many peace projects have been drafted, in accordance with the ideal of peace through carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 11 law, which seeks to reach a cosmopolitan constitution, in the sense of kant’s essay on perpetual peace, of 1795 (goyard fabre, 1994, 277). rodrigo (2016, 24) refers to worldphalia (as opposed to westphalia) as an as yet non-existent new organisational model, an analytical instrument that would describe a certain degree of sociability and a new type of law, characterised by the participation of non-state actors and ngos and by the reduction of sovereignty. human rights would be included within a category of global public goods, in which there is global public interest, which would have certain consequences. the notion of worldphalia is still a hypothesis, not yet a reality; a discursive resource that helps to highlight certain aspects that are oriented toward an international public law (bouza, garcía, rodrigo, 2015, 29). in the past, the distinction between the structures of coexistence, cooperation and community made by authors such as reuter, friedmann and dupuy were encouraged in a similar way to constructive abstractions, through certain notions that seek to evoke the notion of general interest in international law. undoubtedly, much of today’s international law has been built on utopias of the past, such as international courts or organisations, so they are likely to be relevant still in the future. today’s utopia is lege ferenda, a project yet to be realised, a driver for transformation. a good example of this is the universal declaration of human rights of 1948 (dupuy, 1999, 436; sur, 1987, 35) that pointed to a utopian horizon. there are also driving notions in the development of human rights, such as the notion of mankind, humankind, or humanity, rooted in traditional philosophical thought, which has contributed to the emergence of new fields, discourses and structures beyond the state. humanity is not a subject of il but rather an object of projection. according to bedjaoui, it should be the subject par excellence (bedjaoui, 1995, 441; cançado, 2010, 281). cançado considers it a subject. to my mind, it is a protected legal good, reflected in diverse international institutions, such as the heritage of humanity, envoys of mankind, the repression of crimes against humanity, humanitarian interventions, international humanitarian law (principle of humanity, etc..). this notion evokes solidarity, collectivity, community, in a transtemporal sense, which supersedes the national interest of each state and consensus between them as an accommodation of interests (carrillo, 1999, 115; sucharitkul, 1984, 415) . it is a driving force for normative change that offers an inspiring vision of transformation towards solidarity. this notion is located in the collective imagination. the hope is that international community law will become the law of humanity. jenks (1968) refers to the common law of humanity; abi saab refers to the internal law of humanity; pureza to public order for humanity (pureza, 2002). all sectors in which the notion of humanity is reflected are closely linked to human rights. however this notion has hit upon hard times. new developments in international law on the heritage of humanity have not been carried out in a spirit of solidarity. the 2030 agenda, the global compact for migration, and the guiding principles for business and human rights make no mention of this notion. if the agreement of 29 july 1994 regarding the seabed and ocean floor was a triumph for economic liberalism, recent developments for questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 12 the exploitation and utilisation of natural resources on the moon also sidestep the notion of the heritage of humanity. there is no consensus to push the notion forward. in this regard, austria, australia, mexico and bulgaria do consider that exploitation is compatible with the principle of the heritage of humanity, but this is not the case for russia, or countries that, like the usa, luxembourg or the united arab emirates have enacted domestic laws for exploitation (prado alegre, 2020); a working group, led by greece and belgium, is trying to reach a consensus. in relation to the antarctic, the lack of agreement led the 1988 convention to establish a moratorium on the possible exploitation of resources until 2048. there are other driving utopias such as the sustainable development goals. but alongside these driving forces, there are also other braking forces. 3.3. legality and legitimacy is ihrl a legitimate order?. it is the historical result of an unequal and decentralised society, in which the law is made by those who wield power, regardless of general interest. values such as peace, dignity or solidarity do not drive the evolution of international law. this leads us to consider the legitimacy of the model of international international law, and in particular ihrl. the model for il legitimacy cannot be like that of the state. wheatley applies habermas’ theory of deliberative democracy to the international arena. he feels it is not applicable to the un, but that it does apply to global regulatory norms that, ultimately, have been created through consensus among states. we do not believe that the assumptions of this analysis hold true, since there is no democracy in relations between members of the international community. the fact that the legality of these norms is grounded in such a consensus is another matter. but legitimacy requires something else. legitimacy can also be analysed as legitimation (habermas, 1991, 132), in the sense that order is an adequate response to social needs. in the world, there is a vast chasm between social needs and the law. the inadequacy of the functional expansion of international order to encompass social needs generates a hunger for law (faim du droit). chemillier-gendreau (1998, 75) believes that a copernican revolution of the current legal bases (a global right to construct) is necessary. but if international order did not exist, needs would be greater. in this regard, the legitimisation of ihrl is partial. legality is sometimes violated in search for alternative legitimacy and in the name of human rights. this was the case with nato’s humanitarian intervention in kosovo, in 1999. legality and legitimacy did not coincide. in such cases, the violation of legality is justified in the name of a new legitimacy. at the nuremberg trial, the consensus of the victors went against the current law in force because it jeopardised the principle of legality and non-retroactivity. in legal arbitrariness and supralegal law radbruch (1946, 1962) analyses the case of a person (gottig) who wrote hitler is a mass murderer and to blame for the war in a public lavatory, was denounced by a justice department clerk, putfarken, and was executed for it (and for listening to foreign radio broadcasts). even though putfarken was acting in carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 13 accordance with the law in place at the time, he was later tried for his actions, which does not fit.. according to the prosecutor, anyone who at that time initiated legal proceedings against another should have known that the defendant would not have been given a fair trial but would instead be subject to arbitrariness; or the case of a concentration camp guard who, when he saw the horror of what was happening, fled to neutral territory in switzerland, and when he was about to cross the border of the camp, a guard went to stop him, and he killed the guard and fled. at the end of the war, his case would be dismissed. such cases highlight the relevance of power over and above the law, and in exceptional cases, of revolutionary change in law and power. something similar also happened in the context of decolonisation, where the principle of permanent sovereignty over natural resources would be used to nationalise companies without compensation; or in revolutions such as the ussr, cuba or china. in these cases, alternative law wins, because it is supported by a new power, in a context of revolution. but in the absence of a revolutionary change, infringing the law in the name of a new legitimacy is simply the justification for a violation. 4. theoretical horizons of ihrl 4.1. evolution or revolution in the progressive development of ihrl, there has been a revolution in the pillars of international order. the values of classic international order were equality (sovereignty and non intervention) and legal certainty (a characteristic of any legal order). values such as human dignity, peace or solidarity are typical of contemporary international law. these values are in some cases incipient, or deficient, but they have penetrated the international legal structure. the principle of the international protection of human rights is the last to emerge in the international community. it is not expressis verbis in the united nations charter, or in resolution 2625, although it does appear in the final version of the declaration of helsinki. it is a principle that has not enjoyed widespread support, since it is a manifestation of international cooperation in international institutions. the principle of sovereignty, which enjoys unanimous support, has been reoriented by human rights in matters such as diplomatic protection, immunities, and the right to asylum, and a classic understanding of sovereignty is no longer affirmed, now limited by human rights. other principles have also been modified, such as the principle of non intervention (and the debate on humanitarian interference and the responsibility to protect), self-determination, the principle prohibiting the use of force in international relations, the principle of international cooperation, in dimensions that cannot be analysed here, but that are indebted to the evolution of ihrl. similarly, ihrl has transformed the nature of obligations. whereas, within classic il, such obligations were bilateral and reciprocal, nowadays there are erga omnes and non-reciprocal obligations. it has also led to the emergence of imperative norms or ius cogens, the majority of which pertain to human rights and have introduced a hierarchy of values in contrast to the axiological relativism of classic international law. the law questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 14 of treaties has also changed, with the doctrine of nullity as opposed to ius cogens, the impossibility of making reservations contrary not only to the object and purpose of a treaty but to imperative norms (also within the european union), the transformations that stem from the relationship between international law and domestic law, etc. despite these changes, some authors consider ihrl to be a “central component of subordination matrices”, a “social factor of domination and exploitation”, together with others such as racism, the patriarchy, capitalism or imperialism (bachand, 2018, 183, 187). peces-barba said that we must be careful about brushing aside the utopia of modernity without yet having achieved it (peces-barba,1995, 13). certain utopias such as those that led to communism were sustained through serious crimes against humanity such as stalin’s gulags (applebaum, 2004, 665). more recently, attacks against modernity in arabic countries have actually shored up theocratic dictatorships. utopia has given way to god’s revenge (kepel, 2005, 24), as re-islamisation groups in the mediterranean have taken over from marxist groups. revolutionary theses forget that, at an international level, it is more about what is missing than what has been achieved, but that there has been a small revolution that can only continue if it is based on the consensus of the international community. there is no state in which a revolutionary project can be implemented. neo-marxist proposals and so-called critical theory are lacking with regard to their applicability to international order. certainly the ideas put forward by theodor adorno and m. horkheimer (gonzález soriano, 2002, 290) in the dialectic of enlightenment could be argued today and for the international community. power and dominant ideology can be two sides of the same coin. the dominant ideology legitimises the oppressive reality of developed capitalism, which was the central idea expressed by these authors. today, one might also consider the fact that communist countries like china are the best examples of capitalist market economies. capitalism has evidently triumphed at a global level. but even if this is the case, it is not applicable to ihrl on account of its nature. like international law, ihrl does not have a single author or a determining factor. however, ihrl is a limitation to power in international society. domestic and international revolutions have ended up producing a new synthesis of the fundamental principles of international law, or excluding incompatible principles (leben, 1990, 47). they adapt to the international system both the marxist-leninist revolutionary state and the new states arising from decolonisation adapted to the principles of peaceful coexistence, which allowed for the universalisation of international law between opposing states (remiro brotons, 1982, 59). international order has always been dogged by pathological crisis syndrome (de la pradelle, 1974, 141). the emanation of values such as human dignity, peace, and solidarity marked a revolution in international order, which was transformed in its pro human rights functions. a finalist or transformative international order that is reflected in the normative fabric. in this respect, the theory of international constitutionalism, which has been a beacon for human rights, and the idea of global public goods currently in vogue would be more accurate. ferrajoli, in the wake of the pandemic, advocated a “constitution for earth”. we carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 15 have moved beyond the classic vision of il by introducing the notion ofcollective legal interest and a multilateral vision of ihrl. doctrinal positions on the idea of the international community are varied (dupuy, 1979, 27; garcía segura and vilariño, 2005, 194). the idea of a constitution relates to the features of supremacy, hierarchy, justice or values. constitutional theories have been developed in the international order, fundamentally in the german and italian schools of thought, which emerged as a reaction to the inadequacies of positivism and voluntarism. in contrast to law based solely on will, the pure theory of law emerges, along with social objectivism (duguit, scelle, politis), the return to natural law (piler, le fur, salvioli, verdross), and institutionalist theories (s. romano) (scelle, 1933, 501; romano, 1933; ziccardi, 1943). a constitution fulfils three functions: security, justice and legitimacy. part of the international doctrine considered that the charter of the united nations was the constitution for the international community, based on articles 1, 2, 6-2, 39, 103 and 108, which reflected certain constitutional dimensions. however, the united nations does not represent the defence of general legal interests arising from the violation of obligations erga omnes, with the exception of serious human rights violations or in connection with the crime of aggression or denial of self-determination, ex chapter vii of the charter (de hoogh, 1996, 126). in our view, the charter cannot be understood as the constitution of the international community because it only partially fulfils constitutional functions. in il, security and certainty are not channelled through the united nations, since creation and implementation procedures are on the margins, and the secondary il norms that establish the procedures for the creation, change and application of the system are unofficial; similarly, in terms of the function of justice, values, ends and principles that can achieve or approach justice are not fully contained in the charter. however, it could be said that the material constitution of the international community can be found in general il and that human rights play a central role in this regard. 4.2. justiciability and legality legality does not depend on justiciability. they are two different things. however, the greater justiciability of international relations, reflected in the proliferation of courts, including many human rights courts, is to be welcomed. having moved beyond the debate on the existence of international order and accepted that it is different from domestic laws, there has been a proliferation of international human rights courts that ultimately respond to the maxim fiat justitia ne pereat mundus. there is a close relationship between peace, human rights, and the judicialisation of international relations. the proliferation of regional human rights courts (european, african, american) has broken apart the sovereignty-jurisdiction dyad, opening up new issues. each court is a self-contained system, which is not inserted into an international state structure, since there is no kelsenian pyramid and no hierarchy between the courts. the link between the courts is that they all pertain to the same galaxy of international order and are bound by basic rules. the turning point and centralisation of international order would be binding international jurisdiction (leben, 1998, 291). questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 16 courts have consensual jurisdiction, which introduces a large helping of relativism. some international courts admit reservations and interpretative declarations (such as the european court of human rights, provided they are not counter to the object and purpose of the treaty) and others do not (for example the international criminal court). the proliferation of courts has broken interstatism, and ius standi pertains not only to states but also to some individuals, which has greatly increased its role in human rights. in the echr, in un protection bodies, and in the european court of justice, an individual may sue a state, which constitutes a revolution in international law. the individual is an active subject of international law. and an individual’s passive subjectivity would come in play because, in other international courts (such as the international criminal court, or the ad hoc courts for the former yugoslavia or rwanda), he is internationally responsible for committing certain crimes against humanity. all of this has led to an individual being considered subject to international international law. however, there is no international court of human rights, and un bodies and mechanisms also do not serve this purpose. in 2008, switzerland proposed the creation of an international human rights court (callejón, 2015, 329), but this has not led to any significant developments. in any event, since the end of the twentieth century, there has been extraordinary development of international criminal courts, which constitutes a huge step forward in the fight against impunity for major human rights violations. nuremberg paved the way for an international criminal court, but as a result of the cold war, it was not until the start of war in the former yugoslavia that the ilc (international law commission) passed, in 1994, a draft statute for an international criminal court, complemented in 1996 with another draft code of crimes against the peace and security of mankind. the 1996 code of crimes was very limited in the types of criminality included. in adopting the draft, the ilc made a statement indicating that “in order to reach consensus, the ilc has considerably reduced the scope of the code. in 1991, the list included twelve categories”. the draft included crimes of aggression, genocide, crimes against humanity, against united nations personnel and war crimes. with the exception of the penultimate one, the others were customary in nature. the others were not included because there were doubts about government support and because of the difficulties encountered with regard to their specification and elements. this was the case with crimes of intervention, colonial domination, recruitment, use, financing and training of mercenaries, drug trafficking, terrorism or intentional and serious damage to the environment in this context, the ad hoc tribunals for the former yugoslavia and rwanda and the ad hoc tribunals for lebanon, sierra leone, and cambodia were established. as a result, the greatest progress came with the creation of the international criminal court, which, in the words of c bassiouni, when the statute was passed on 18 july 1998, ushered in a new era in the history of international criminal justice. it was a giant step. 4.3. sustainability: progression or regression of human rights is the legacy of ihrl consolidated? in contrast to the ostensible enlightened idea of progress, we are not safe from regressions in human rights. human rights have always found it hard to forge a path. but before, there was a shared horizon. globalisation has carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 17 called social rights into question. the doctrine takes for granted the consolidation of rights, but they are not a dogma of faith. globalisation and the weakening of the state, the degradation of liberal democracy, nationalism, and populism have triggered a crisis in human rights. the old enlightened dream of human rights appears to be in crisis, and the meaning of human rights must be reclaimed (dupuy, 2018).there must be renewed consensus on human rights without pushing it as dogma. this requires dialogue between civilisations, taking into account the multipolar society in which we live, so that human rights can constitute a shared universal minimum. agendas that foster human rights must also be promoted. the 2030 agenda and the sustainable development goals are extremely relevant with regard to human rights. more than half of the sdgs pertain to human rights. the 2030 agenda sets out a great journey in favour of human dignity in which no one should be left behind, according to the unga (fernández liesa, 2017, 29). this horizon can lead to frustration if the indicators show no progress after time. there are other difficult issues for sustainability, such as the 2008 financial crash or the current pandemic (covid 2019). the financial crisis increased the deficit and public debt, highlighting the clash between the state’s financial obligations and its human rights obligations (soroeta liceras, 2012, 555). in this instance, the legal bases and the various bailout programmes failed to take into account the impact on human rights. the coronavirus epidemic has also called into question many rights. the obligations of states under art 2 of the 1966 covenants might be unfulfilled due to lack of resources, which will undoubtedly come to pass in many parts. the effectiveness of rights depends not only on norms, but also on the state having the necessary resources for proper administration of justice, democracy and public services. there are certainly rights that cannot be suspended or restricted under any circumstances (general observation nº 4, 24-vii-2001, cpr), such as the right to life, not to be subjected to torture, the prohibition of slavery, the prohibition of imprisonment for contractual obligation, the recognition of legal personality, freedom of thought, conscience and religion, the right to humane treatment, the prohibition of hostage-taking, nondiscrimination, forced transfer or deportation without grounds authorised by international law, prohibition of war propaganda global consensus on the un’s enlightened idea of human rights and the 1978 constitution could also be eroded. for kissinger, the pandemic had led to the rebirth of a walled city at a time when prosperity depends on global commerce and the movement of people. the transition to a post-covid order must safeguard the principles and premises of ihrl (kissinger, 2020), from the only human rights model that has existed. it will face the resurgence of nationalisms, populism, xenophobia, extremism, and a lack of solidarity. it will also have to deal with the fact that achieving human rights entails not only addressing the right-obligation dyad, but also channelling the best way to achieve objectives through public policies. however, reaching the best policies is not an exact science. the margin of appreciation afforded to states (legg, 2012, 213) obscures questions on theory of law in international human rights law the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 18 the best policies on human rights. in addition, the principle of free choice of the political, social, and cultural system, a manifestation of sovereignty, also makes it hard for policies to be precise. and even though knowledge has increased, we still face the paradox pointed out by innerarity in the democracy of knowledge (2011, 68) that the knowledge society is bringing about the end of knowledge authority. experts are instrumentalised by those in power to justify political decisions previously taken, the author says. finally, there are many factors that condition human rights that cannot easily be turned into the subject of human rights norms, such as globalisation, the weakening of the state, the economic model, the digital revolution, poverty, sexism, nationalism, multinationals, racism, fundamentalism, the lack of international consensus, or the absence of full democracy. according to j. sacks, the international economic dynamic represents a threat to the planet that has a very negative impact on human rights, but that does not depend on ihrl. controlling climate change, ocean acidification, depletion of the ozone layer, the excessive use of nitrogen and phosphorus as a result of the intensive use of chemical fertilisers for agriculture, overuse of fresh water, land use etc.. are phenomena that affect human rights but that are much more far reaching, and would require a holistic approach by international society, in the general interest of all, virtually non-existent today. 4.4. effectiveness the war in syria, conflicts (libya, ukraine, colombia), genocides (cambodia, yugoslavia and rwanda), dictatorships (urss, portugal, spain, argentina, chile, turkey...), torture (guantanamo, abu ghraib), poverty or hunger are examples that give us cause to reflect on the effectiveness of human rights. the ineffectiveness of human rights might lead us in some cases to ponder their invalidity. but this is not the angle of reflection. ihrl serves to guide the behaviour of states in one direction, to assume their obligations and to see that they are a limit on their behaviour, which could be subject to international supervision. but there are enduring violations. for example, trafficking in human beings is an international business that moves more than 150 million euros a year. a lack of norms is not the problem, but rather their ineffectiveness, which is also seen in national society. the supreme court ruling 396/2019 of 24 july 2019 (speaker sánchez melgar) is very enlightening in this regard: “trafficking in human beings (…) once in our country, abused people are forced to practice prostitution in various hostess bars, dotted around the country, as places were human dignity is seen as insignificant, in order to profit from women who have been brought into the country, objectified, seeking to earn maximum economic returns, while these people are being exploited. we do not have to travel to distant countries to see slavery up close in the 21st century. it is present in nearby places, by the roadside, where there are one or more hostess bars in which people are forced into prostitution, enslaved, people who are brazenly bought and sold by different establishments, as these people are abused to pay for the one-way ticket to their debasement”. carlos r. fernández liesa the age of human rights journal, 15 (december 2020) pp. 1-25 issn: 2340-9592 doi: 10.17561/tahrj.v15.5838 19 hence, one of the biggest challenges facing human rights is to achieve greater levels of effectiveness. indicators are increasingly being used to assess whether human rights are becoming more effective. currently, the right-obligation dyad appears to be insufficient to advance ihrl. indicators and objectives are taking centre stage in the search to increase the effectiveness of rights through plans and programmes, and through statistical measurements. these include indicators such as those of the undp (life expectancy, levels of education and nutrition, together with others such as per capita income, public spending, inequality coefficients, health indicators, gender disparity, perceived wellbeing, human security), the democracy index (by the economist), (electoral process, pluralism, freedoms, political participation...), rule of law index report, drawn up by the world justice project (corruption, justice system, judicial independence, powers...), freedom house (free countries, semi-free countries, and countries without freedom), rankings for human rights sentencing, femicide rates, criminality, corruption, health, happiness, etc.. many of the major issues such as the sustainable development goals (2015), the guiding principles for businesses and human rights (2011), and the global compact on migration (2018) are part of soft law. beyond the right-obligation dyad, it will be more important to measure progress in terms of effectiveness indicators, which would allow us to move beyond discourse and evaluate the practical relevance of ihrl. bibliography abi-saab, g., (1967) the concept of ius cogens in international law, geneva. abi-saab, g.,(1968) “the development of international law by the united nations”, révue egiptienne de droit international, vol. 24, pp. 10-24. abi saab, g., 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la constituzione dell´ordinamento internationale, milan. received: july 2nd 2020 accepted: october 13th 2020 articles carlos r. fernández liesa questions on theory of law in international human rights law 1. introduction 2. international legal order and international human rights 2.1. human rights hierarchy and norms 2.2. unity of international law and human rights 2.3. coherence and the proliferation of courts 2.4. the structure of order: sources and subjects 2.5. time and law 2.6. power and law 3. justice and international human rights laws 3.1. the notion of justice and ihrl 3.2. justice, utopia and cosmopolitanism 3.3. legality and legitimacy 4. theoretical horizons of ihrl 4.1. evolution or revolution 4.2. justiciability and legality 4.3. sustainability: progression or regression of human rights 4.4. effectiveness bibliography microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 109 ideological freedom and related legal wording marc-abraham puig hernández1 abstract: in practical discourse, we can find out legal wording that is associated with ideological freedom and applied interchangeably: freedom of thought, freedom of conscience and religious freedom. in this essay, our aim consists in determining which the proper use of each expression is. for this purpose, we have observed: how the concept of ideological freedom is established in some legal systems; how it can be differentiated from religious freedom clearly but not from freedom of conscience on account of a vague material scope of validity; and why these difficulties move from conceptual to legal areas. in order to propose a convenient use to the latter expressions, we draw on berlin’s two concepts of liberty. keywords: ideological freedom; freedom of thought; freedom of conscience; religious freedom; conscience objection. summary: 1. introduction. 2. the concept of «ideological freedom». 3. the connection between ideological freedom and religious freedom. 3.1. normative connection. 3.2. two types of guarantees. 3.3. conceptual difference. 4. ideological freedom, freedom of thought and freedom of conscience. 4.1. normative connection and scc interpretation. 4.2. conscientious objection as a guarantee. 4.3. berlin’s two concepts of liberty. 5. conclusion. 1. introduction in the practical discourse, we can find out legal wording that is associated with ideological freedom and applied interchangeably by virtue of this association. we are speaking of freedom of thought, freedom of conscience and religious freedom. the constitution of spain proclaims ideological freedom and religious freedom together and the spanish constitutional court has considered freedom thought and freedom of conscience equivalent expressions to ideological freedom, as they appear in echr. another example is the canadian chapter of rights. however, this act proclaims that one freedom denotes conscience and religion whilst thought, belief, opinion and expression belong to another liberty. during this paper, we will observe some examples (rules, legal doctrine and case law) in other legal traditions, although we are focusing on the spanish one. as long as a link between these expressions stands out, it could mean that we can use them indistinctly. if so, we should explain why the spanish constitution introduces a new one among a wide variety of expressions. in addition, we could take an alternative point of view to consider that each expression establishes its own scope. if this would be the case, we should revise this current analogous use and appeal to an appropriate one. given this parameters, there are two issues to consider. first, ideological freedom, on the one hand, and freedoms of thought and of conscience, on the other hand, do not figure in the same catalogue of freedoms, that is, they are part of different legal standards. while the constitution of spain contains the 1 postdoctoral researcher. faculty of law, university of barcelona, spain (marcpuig@ub.edu) the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 110 ideological freedom and related legal wording expression «ideological freedom», the echr, among some other examples, frames the other two. despite having different normative origins, we invoke them such a synonymous, for instance, the stc 145/2015, june 25th (we will draw on «stc» abbreviation to refer a spanish constitutional court decision in this text); notwithstanding, we should not accept such a terminological equivalence in advance from any equivalence between rights. at least, because some connotations could belong to a singular freedom. by mentioning them, we should use that specific expression avoiding establishing an indirect interrelation by using a non-specific word. at the end of the day, indirect speech would create confusion over terminology (if we talk about some concrete connotations with a non-specific word, are we trying to denote some other characteristics or is it just a figure of speech? alternatively, we might as well compare those connotations with the ones that define the non-specific word). before a specific conceptual scope, there would be reasons to refuse this indistinct use. second, religious freedom would apparently escalate the first issue, because this expression usually joins the previous ones in all legal standards. does it mean religious freedom is always a synonym? no one will likely maintain that. again, there is a normative link but no confusion between the expressions ideological and religious freedom. in other words, religious freedom indicates a body of facts regardless normative correlation. our hypothesis tries to show that the legal reasons that allow us to distinguish conceptually religious freedom from ideological freedom cannot operate to distinguish ideological freedom from freedom of conscience because of a vague material scope of validity. hence the need to resort to an external source, which would give effect to such conceptual distinction. we propose to do so by attending berlin work and his two concepts of liberty. while the legal guarantees of freedom of conscience lead us to explain it as a negative liberty, ideological freedom would encompass generically both conceptions of liberty, positive and negative. the main purpose of this work is to offer an answer to the questions we have just raised and to justify the convenient option of each of these wording in practical discourse. the study can lead us to define this terminological correlation in one of the following directions: confirming the indistinct use we observe in practical discourse; rejecting said use and, subsequently, calling for proposing a precise use; or confirming ones and rejecting others. this subject matter requires highlighting a series of methodological preferences. first, the kind of sources we handle. ideological freedom is the expression we need to differentiate. as it is proclaimed in cs, materials such bibliographical sources and case law are essentially those related to the spanish constitutional doctrine, without this implying discarding other applicable sources, such as comparative and international law. second, a previous or preliminary definition of the concept of ideological freedom, although not as exhaustive as we will develop it through the essay. we understand that ideological freedom means the capacity to form a personal conception (freethinking) about the surrounding world as well as acting pursuant to that. according to the objectives and to how we are achieving them, we can define the structure of the work as follows. in the first place, we are observing how other legal and the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 111 marc-abraham puig hernández philosophical traditions use the concept of ideological freedom. in the second place, we will explain that the legal relationship between ideological freedom and religious freedom does not prevent differentiating both concepts. finally, we will see that the previous explanation unsatisfactory distinguish ideological freedom from freedom of conscience, which encourages us to utilise a concept that allows it. 2. the concept of «ideological freedom» in this first section, our aim is to determine the affinity between the notion of ideological freedom, the one we have exposed in introduction, and the typical legal wording from other legal traditions. with this purpose, we will illustrate this notion with some examples, will rise some common grounds of the law and will evidence that in the end it could be quite confuse choosing one expression or another in practical discourse. it is not our intention to deepen exhaustively in this traditions; our claim is rather explanatory than analytical. a profound study of each tradition would exceed our goal, albeit sometimes it has been out of question to focus our attention on certain doctrinal or legal issues. bringing up some expressions could develop into a heterogeneous concept of that freedom. for this reason, we are taking into account legal precepts as far as possible. as could not be otherwise, law would act as a common ground in this essay. among those expressions, we are noting freedom of «thought» or «conscience», «liberté de pensé» et «de coscience», «libertà di pensiero» i «di coscienza», or «glaubensfreiheit», «gewissensfreiheit» and «gedankenfreiheit». we are also indicating how to refer to «religious freedom» in those traditions. the theoretical development of these concepts will help us in the discussion about the proper use of ideological freedom regarding freedom of thought, freedom of conscience and religious freedom. we can find «freedom of thought» in bury’s 1913 classic a history of freedom of though. the author went back to j. s. mill to suggest, first, that freedom thought designates the rational thought of the individual, as a general term, and second, that it constitutes a precondition to act. we must be careful with bury’s work, because his essay delved into some traits that currently connect with freedom of expression, free speech, according to our legal tradition. said that, it is possible to highlight some features we have previously identified: if we are to act at all, we must assume our own opinion to be true. to this mill acutely replies: “there is the greatest difference between assuming an opinion to be true, because with every opportunity for contesting it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action”.2 2 bury, j.b.; a history of freedom of thought, cosimo classics, new york, 2005: 238-239. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 112 ideological freedom and related legal wording in addition, freedom of thought has its roots on «free-thinking». within the path of individual’s rational thought, to prefer a judgement of the own reason over the ones of any authority gives form to intellectual independence. in words of anthony collins we have a right to know or may lawfully know any truth. and a right to know truth whatsoever implies a right to think freely.3 it was a matter of time to materialise this type of independence in “a right to think freely”, but we cannot assert which liberty it refers. this lines might as well depict freedom of thought, but, does not an own judgement refer to freedom of conscience? in fact, we could use both expressions in legal discourse speaking of this liberty, for instance, under the canadian charter of rights, which proclaims «everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression…».4 let us look now at the nature of these rights. freedom of thought takes part in the rest of liberties of letter «b». individual rights guarantee it against “governmental interferences” because of being stablished as a fundamental freedom.5 a previous canada-usa comparative analysis has shown these same two points in the interpretation of the first amendment: freedom of thought plays a part in others liberties (especially in freedom of expression) and it constitutes a right against interferences as a fundamental liberty6 (we could explain it in dowrkin’s account of rights as “trumps”).7 on the other hand, we can reach similar impressions about freedom of conscience, concretely about the notion of the alienability of conscience, which stems from baruch spinoza vindication of a sphere of inner liberty. this author wrote no man’s mind can possibly lie wholly at the disposition of another, for no one can willingly transfer his natural right of free reason and judgment, or be compelled so to do.8 liberty of conscience had become a notion of inalienable right, from which one person cannot surrender it by any means. furthermore, on ruggiero’s the history of european liberalism freedom of conscience implies, formerly, religious liberty and 3 collins, a.; a discourse of free-thinking, garland, new york, 1978: 6. 4 canadian charter of rights and freedoms, constitution act, 1982, section 2. 5 sedler, r.a.; constitutional protection of individual rights in canada: the impact of the new charter of rights and freedoms, 59 notre dame l. rev., 1984: 1202. 6 scanlon, “a theory of freedom of expression”, philosophy and public affairs, vol. 1, no. 2, 1972: 204-226, and sedler, r.a.; the constitutional protection of freedom of religion, expression, and association in canada and the united states: a comparative analysis, 20 case w. res. j. int’l l. 577, 1988. available at: https://scholarlycommons.law.case.edu/jil/vol20/iss2/7 7 dowrkin, r.; “rights as trumps”, in theories of rights, oxford university press, oxford, 1984: 153-167. 8 spinoza, b.; tractatus theologico-politicus, hackett, samuel shirley, trans., indianapolis, in, 1998. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 113 marc-abraham puig hernández liberty of thought as part of human’s personality and, latterly, “all that concerns his relations to other individuals: freedom of express and communicate his own thought, personal security against all oppression…”.9 transferring it into legal discourse, we can expose it in freedom of thought account. according to lucas swaine, freedom of thought originates some other liberties, such religious freedom, and freedom of speech or freedom of expression.10 with these references, we have observed there are two features that would constitute the basis of our concept. 1) the capacity to assume any system of thought, particular ethics, vision or idea about life as well as acting according to that, which reveals human’s nature as a moral and rational agent; and 2) the generic concept which encompasses specific liberties, such the religious or the expression ones. our aim is to bring the idea that this concept is named either freedom of thought or freedom of conscience while, in spain, it is also called «ideological freedom» and, despite this, we can uphold a particular use of each one. let us put the focus on italian legal tradition in order to find out if those legal expressions refer to these features. such reference will also contribute to introduce the notion of religious freedom. in italy, some clarifications has contribute to develop this concept. while freedom of thought («libertà di pensiero») would be that liberty which endorses each way and form of thought, we should make use of freedom of conscience («libertà di coscienza») when someone acts according to any thought-system assumed by the individual. they identify the two parts of our previous point «1)» as different freedoms: thinking vs. acting. this distinction corresponds to italian courts interpretation of article 9 echr.11 freedom of conscience revolves around beliefs and convictions to define human personality, essential in social relations. both freedoms, of conscience and religious, protect those acts, behaviours, conducts, which belongs to individual’s conscience, that is, actually, beliefs and convictions.12 the french legal tradition has particular features. the right to freedom of thought has its french counterpart in «liberté de pensée». according to this legal system, such liberty lays down the right to determine which content should have intellectual, moral, 9 de ruggiero, g.; the history of european liberalism, beacon paperback, r.g. collingwood, trans. (1927), beacon hill, boston, 1959: 26. 10 swaine, l; “freedom of thought as a basic liberty”, political theory, vol. 46, n. 3, 2018: 407. 11 see bifulco, r., caratabia, m., and celotto, a.; l’europa dei diritti, il mulino, bologna, 2001: c. xiii, and martín de agar, j.t.; “diritto e obiezione di coscienza”, in i diritti fondamentali nell’unione europea, zanichelli editore bologna – il foro italiano roma, bologna, 2013: 974-1010. similarly, we could find this distinction in the greek legal system, though article 13.1 of the greek constitution establishes «freedom of religious conscience» to protect this action. 12 ruffini, f.; la libertà religiosa come diritto pubblico subiettivo, il mulino, bologna, 1992: 279 and guarino, a.; obiezione di coscienza e valori costituzionali, jovene, univ. na federico ii, napoli, 1992: 15-16. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 114 ideological freedom and related legal wording political and religious thinking. this right has internal and external implications. on the one hand, beliefs and convictions configure the absolute nature of the internal implications. on the other hand, the respect for other rights determines the external dimension and restricts how a person can manifest, or externalise, those convictions or beliefs.13 freedom of conscience («liberté de conscience») appeared expressly in the standards and principles added by the preamble of the constitution of 1946 first, and subsequently, in a landmark decision by constitutional council (71-44 dc). nevertheless, as pinon explained, echr extended the range of constitutional rights. since the adoption of it, freedom of thought, freedom of conscience and religious freedom («liberté religieuse») have appeared regularly in french legal discourse.14 french legal system establishes two ways of using these expressions. the first one comes from the constitution of france (cf). the principle of secularism guarantees equality before the law and non-discrimination on religion or beliefs (article 1 cf). the protection of both traits would lead to use the expressions of freedom as the capacity to adopt them. the second one derives from the declaration of the rights of man and of the citizen (drmc), approved by the national assembly of france on august 26th 1789, annexed to cf. what we have presented as internal and external implications (dimensions, spheres or areas), figures respectively in articles 10 and 11 drmc. in article 10 is set that «no one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law». from article 11, individuals can communicate thoughts and opinions freely through a series of means; such speak, write and print, «but shall be responsible for such abuses of this freedom as shall be defined by law». as both articles, 10 and 11 drmc, has placed us before a legal content that we will elaborate throughout the following sections, we are insisting now on fc. the main reason to do so is to put forward that these rights usually bound public and government authorities. the constitution of the fifth republic has some references to «public freedoms», all of which can be found in one of the three texts included in the constitutional block: the drmc, the preamble of the constitution of 1946 and the charter for the environment of 2004. the debates and interpretations of these freedoms allows us to find out wording such freedom of beliefs («liberté de croyance»), even ideological pluralism («pluralisme idéologique»).15 the concept of public freedoms ties with that right against government 13 velu, j. and ergec r., la convention européenne des droits de l’homme, bruylant, bruxelles, 1990: 584. 14 pinon, s.; “sistema constitucional de francia”, revista de derecho constitucional europeo, no. 14, 2010: 17-74. 15 djordjević, k and yasri-labrique, e.; médias et pluralisme: la diversité à l’épreuve, éd. des archives contemporaines, paris, 2014. about the notion of «pluralisme idéologique» in belgium, see dumont, h.; le pluralisme idéologique et l’autonomie culturelle en droit public belge, vol. 2, bruylantpublications des facultés universitaires saint-louis, bruxelles, 1996: 265-267. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 115 marc-abraham puig hernández interferences or “trumps”, although french constitutional case law and doctrine would force us to clarify the principle of secularism. at least, providing more rigour than a sole mention. among some authors, poulat explained that the principle of secularism conveys the principles of democracy and both religious and ideological pluralism. it started as assertion of professing different beliefs, particularly religious, but it resulted into that respect that state must display to any intellectual approach, in other words, into a principle of secularism with barely axiological limitations.16 in any case, this open-scope should not result in the state avoiding its burden on protecting conscience or religious freedom,17 it is just appearing when any belief, conviction or, as it also happen in spain, «idéologie» should be guaranteed by public or government authorities.18 whilst the recognition of this liberties developed a perfect separation of state and church powers in france (and in netherland), the rest of european states were structured through a state model in which, although both functions are divided, there are some combined tasks in selected areas.19 it is time to consider these other models via germany. legal doctrine has deemed religious freedom («religionsfreiheit») as umbrella term to encompass freedom of beliefs («glaubensfreiheit»), freedom of conscience («gewissensfreiheit») and freedom of thought («gedankenfreiheit»).20 this assumption stems from framing each liberty, in german legal system, within one concept that would cover them all. that is the reason why it has been understood that religious freedom, and no other liberty, empowers the individual to live, alone or collectively, in accordance with the assumed ideological system or religion and “with no other limitation than public order”.21 taking the constitution of germany (cg) into consideration, freedom of faith («glaubens») and conscience («gewissens») as well as freedom of ideological and religion confession («religiösen und weltanschaulichen bekenntnisses») draw article 4 cg up. we have noted above those liberties mould a fundamental right in a religious manner. let us see how germanic academics have grasped this article. so far, just remark that there is 16 poulat, e.; “les quatre étapes de la laïcité”, in nouveaux enjeux de la laïcité. actes des colloques, centurion, paris, 1990: 32. 17 garay, a., “la france en face des sectes”, adee, xvii, 2001:161-178. 18 rivero, j.; “de l’idéologie à la règle de droit: la notion de laïcité”, in la laïcité. centre de sciences politiques de l’institut d’études juridiques de nice, puf (presses universitaires de france), paris, 1960. 19 for a comprehensive study on these different models, see robbers, g. (ed.); staat und kirche in der europäischen union, nomos verlagsgesellschaft, baden-baden, 1996. 20 gonzález del valle, j. m., la libertad religiosa y el objetivo del derecho eclesiástico, persona y derecho, no. 18, 1988: 89. 21 see listl, j. and pirson, d.; handbuch des staatskirchenrechts der bundesrepublik deutschland (2nd ed.), vol. 1, duncker & humblot, berlin, 1994: 651, jurina, j.; der rechtsstatus der kirchen und religionsgemeinschaften im bereich ihrer eigenen angelegenheiten, schriften zum öffentlichen recht (sör), 1972, and iban, i.c.; “concreciones y protección de la libertad religiosa”, cuadernos de la facultad de derecho, mallorca, 1986: 235. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 116 ideological freedom and related legal wording a fundamental right to ideological confession in cg, resembling that fundamental right to ideological freedom, which turns up in cs. to reckon religious freedom as a generic right, we must bring the principle of secularism back, whose primary objective consists in ensuring it. state ought to uphold cultural diversity and individual’s conscience. that is, that compliance links religious freedom with neutrality or respecting any belief taken by the individual.22 at this point, it is also necessary to demonstrate, to exhibit, to express, such belief or religion. as a democratic standard, freedom of expression preserves the manifestation of the human personality in society.23 at this point, we have noticed religious freedom could be protected both by freedom of expression and by the respect of beliefs or convictions, by virtue of which some other liberties and rights could be limited at the same time.24 the thing protected is religious freedom, not just religion, because no one can intend any religious conception would be exempt from exercising other freedoms,25 e.g. expression itself. on this, the principle of secularism compels the state to protect «public peace», inasmuch as different freedoms can collide.26 all this proves there is a generic concept with an absolute protection to its internal dimension while public order could limit its external one. they use religious freedom as the generic expression, but the cg ensures to have right to freedom of conscience, of faith and of religious or ideological confession. that is why we can assume all of these freedoms could emanate from the same source. however, we will return to this point later. now it is interesting to focus our attention on a regulation that has similarities with the spanish one. we could find some other examples of the concept of ideological freedom beyond common law or continental law traditions. the reason is udhr introduced a similar notion of its rights and freedoms everywhere. to touch upon other legal systems could be interesting to reinforce the idea that ideological freedom has a meaning that involves freedom of thought and freedom of conscience similarly. for this propose, japanese legal system shares more than a generic concept with the spanish one, such generic-specific scopes. we need to make use of the expressions we have already seen. 22 böckenförde, e.-w.; “einleitung: erklärung über die religionsfreiheit”, in zur geschichte der toleranz und religionsfreiheit, wissenschaftliche buchgesellschaft, darmstadt, 1977: 61. 23 hochhuth, m., die meinungsfreiheit im system des grundgesetzes (2nd ed.), mohr siebeck, tübingen, 2008: 4-5 and 50. 24 hillgruber, c.; “die religion und die grenzen der kunst”, in essener gespräche zun thema staat und kirche, no. 36, 2002: 53. 25 bvefge 93, 1, 16. 26 bamberger, c.; “vorbehaltlose grundrechte unter staatlichem vorbehalt? zur auflösung eines grundrechtsdogmatischen paradoxons”, in der staat, no. 3, vol. 39: 375-365. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 117 marc-abraham puig hernández from japanese constitution (jc) we could detect «religion» in two ways. according to kôji satô, the first one would be extensive, providing religious freedom as we have already exposed (article 20 jc), and the second one would be restrictive, representing a sort of principle of secularism, that is, the separation of the state powers from churches and religious faiths.27 makoto ôishi explained the former way as a “feeling of confrontation towards an absolute being of transcendent nature” and thus without including the notion of deity that japanese constitutional case law had previously reflected.28 concerning the concept of ideological freedom, jc embodies «conscience» (ryôshin 良心) and «thought» (shisô 思想) into article 19. at first, japanese doctrine wondered about the nature of this article. there were two possibilities: it could protect the very same liberty, which different concepts could structure it (those of conscience and of thought), or it could protect two different liberties, then these two concepts would denote specific scopes of protection. satô distinguished conscience as moral feeling, or the ability to distinguish between good and evil, from thought as the rationality of the human being. nevertheless, taking into account the scope of protection, this author thereupon considered this article proclaims a right that casts ad intra, the right would ultimately protect one sole scope guaranteeing its immunity, and ad extra, by means of other constitutional freedoms, e.g. religious and academic freedom or freedom of expression or of assembly.29 the concept of ideological freedom figures in both articles, 19 and 20 jc. as umbrella term through the former, and as its transcendental variation through the latter. this clarification falls into the generic-specific frame.30 in short, we could summarize this section outlining the following points. first, we have seen the concept of ideological freedom in different legal traditions and we can assert a conceptual equivalence: the rational capacity to form any thought, or to adopt any belief or conviction, pairs with the ability to manifest it; the first enjoys immunity, but public order limits the second one. second, religious freedom circumscribes our concept to its transcendental variation. finally, despite of that equivalence, we were unable to identify a proper use for «freedom of thought» and «freedom of conscience» expressions. sometimes one plays as the umbrella term sometimes the other and we have also seen that both set the subject matter of a right, which casts ad intra. 27 satô k., kenpô (daisanban) 憲法（第3版） (constitutional law, 3.ª ed.), seirinshôin, tokyo, 1995: 500. 28 ôishi, m. kenpô to shûkyô seido 憲法と宗教制度 (constitution and religious system), yûhikaku, tokyo, 1997: 236. 29 satô k., kenpô (daisanban) 憲法（第3版） (constitutional law, 3.ª ed.), seirinshôin, tokio, 1995: 484. 30 pedriza, l.; “la libertad de creencias en la constitución japonesa”, revista de derecho político, no. 89, 2014: 279. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 118 ideological freedom and related legal wording this lack of specificity has stepped into legal field. given a series of mutual guarantees (to all these liberties; we will see why), there is no confusion with religious freedom due to that conceptual distinction. however, regarding freedom of thought and freedom of conscience, those guarantees contribute to increase confusion without stipulating how to use each expression. 3. the connection between ideological freedom and religious freedom as we have seen, ideological freedom is a concept related with more expressions than freedom of thought and freedom of conscience. on the normative front, it shares article 16.1 cs with religious freedom. a quick glance at international standards would show us this relation through articles 9 echr, 18 iccpr, 18 udhr or 10 cfreu too. in this work, we assume that «having the right to ideological freedom» refers to a right different from that «having the right to religious freedom» because each right protects different goods. however similar these goods would be, it is possible to differentiate both terms. certainly, there is a series of common elements between these two freedoms, which crystalizes into legal field. we must argue during the section that identical guarantees do not generate confusion about if the protection falls to one or another. as this section has tended to focus on describing the general frame of such guarantees, we have paid less attention to a profound researches and doctrinal debates on this subject. to our mind, exposing the former justifies any lack the reader would miss on the latter. for this purpose, firstly, we will try to explain what this normative connection denotes; secondly, we will expose how the same guarantees can protect different rights; and, finally, we will see how it is possible to differentiate both concepts. 3.1. normative connection the articles that we have just indicated depict similarly the connection between ideological and religious freedom. through the structure of these standards, we can list a series of rights with a common origin. at the sight of commenting article 9 echr, jim murdoch pointed out that, among those articles mentioned ab initio, article 18 of the iccpr offers the best possible wording about what the normative content of these freedoms is.31 that is, this article can be useful to us so as to identify which are the rights connected to the intimate sphere of the individual. by observing how it is composed, we can identify this article is divided in three sections. the first one proclaims these freedoms. in addition, it refers to its scope as the possibility to manifest one’s religion or belief, individually or collectively and publicly or privately. the second one establishes that the individual «internal forum» has protection against others, which allow us to underpin it as a protected area against any coercion. the third point features that manifesting religion or beliefs «may be subject only to such limitations as are prescribed by law and are necessary 31 murdoch, j.; “freedom of thought, conscience and religion. a guide to implementation of article 9 of the european convention on human rights”, human rights handbook, n. 9, strasbourg, 2007: 6. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 119 marc-abraham puig hernández to protect public, safety, order, health, or morals or the fundamental rights and freedoms of others», which we can abbreviate as «public order clause».32 it happens in a similar way in article 16 cs. ideological freedom (for now we just note that article 18 iccpr establishes freedom of thought) and religious freedom appear together in the same article. thought, beliefs or religion of the individual have protection against coercion. moreover, there is a limitation of public order. the reason is these articles hint at the common origin of all these freedoms: the personal, intimate, moral sphere of the individual.33 the «intimate sphere» of the person links both freedoms. the relevance of this sphere lies in the axiological basis, which stems from human dignity and free development of the personality. in pérez luño’s approach, human dignity is the center point to all faculties, all of which constituted to recognize and to affirm the moral dimension of the individual.34 what is more, human dignity would allow justifying a freedom of a public nature and explaining that some rights related to individual privacy could limit the intervention of public authorities. spanish constitutional case law has reflected this limitation. spanish constitutional court (scc) explained that legislator has a delimited margin for acting. a limited margin defined by those rights “that belong to the person as such and not as a citizen […], those that are essential for the guarantee of human dignity, in accordance with the article 10.1 of cs, and the foundation of the spanish political order”.35 in short, among the rights that arise from individual’s intimate sphere, we especially find guarantees for exercising public liberties. these articles have a common minimum and it explains why to proclaim them together. next, we are deepening on such guarantees. 3.2. two types of guarantees two dimensions are the common basis of ideological freedom and religious freedom. the first one consists in the individual, or internal, projection and the second one in its external. each dimension configures a source of specific guarantees. on the normative front, this double dimension is expressly included in article 2 of the spanish organic law 8/1980, of religious freedom (lolr), which only regulates 32 see some references in spanish doctrine: castro y bravo, f.; “notas sobre las limitaciones intrínsecas de la autonomía de la voluntad. la defensa de la competencia. el orden público. la protección del consumidor”, anuario de derecho civil, vol. iv, 1982: 1025.; fernando pablo, m.m., “sobre la cláusula de orden público en materia de nacionalidad”, revista de administración pública, n. 121, 1990: 270.; and méndez baiges, v.; “sobre derechos humanos y democracia”, in en el límite de los derechos, eub, barcelona, 1996. 33 martínez-torrón, j.; “la protección internacional de la libertad religiosa y de conciencia, cincuenta años después”, revista de la facultad de derecho de la universidad de granada, n. 2, granada, 1999: 63-66. 34 pérez luño, a. e.; derechos humanos, estado de derecho y constitución, madrid, 2010: 49. 35 stc 107/1984, 23th november. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 120 ideological freedom and related legal wording religious freedom. the protection of the «internal dimension» is based on the immunity of the individual’ beliefs. it lists a series of specific assumptions, those where this protection plays, such as professing, or not professing, free-chosen religious beliefs or practicing worship acts. indeed, these guarantees operate against coercion similarly as article 16.2 cs, the article that proclaims together ideological and religious freedoms. in respect of the «external dimension» guarantees, we must understand them as the ones related with expression, with manifesting thoughts, beliefs or convictions. in lolr, public order appears again as the order defined by law, that is, by the rights and freedoms recognized in any legal relationship. with this baseline, such guarantees submit the exercise of these freedoms to a right-weighting or legal ponderation. it is also interesting to highlight, from lolr, that religious freedom admits collective exercise, a collective variant with regard to churches, confessions and religious communities which have power to exercise a fundamental right (article 16 cs) and to establish their own organizational structure (articles 2 and 6 lorl). this variant must be understood according to «non-confessional principle» (the principle of secularism in the spanish legal system), also called the principle of neutrality, and its constitutional interpretation. given a margin to the state to cooperate with the church and other religious confessions, there must be “a positive attitude regarding the collective exercise of religious freedom. the principle of neutrality in article 16 cs […] prevents any kind of confusion between religious and state functions […], thus introducing an idea of non-confessional or positive secularism”.36 this collective exercise has led to some constitutional scholars to assert that religious freedom, and not the ideological one, gives reason to the structure of the article 16 cs.37 this affirmation stems from the fact that catholic church holds broad powers despite the normative separation of the powers. these powers come from the agreements between the holy see and the spanish state, of january 3, 1979, while other religious entities do not hold such powers. hence, they observed that the collective exercise of this fundamental right is limited to a preferential treatment of the catholic church, albeit the principle of neutrality disposes a positive attitude of the state towards any entity.38 the collective exercise feature on spanish regulation, but we cannot affirm that constitutes a specific guarantee to protect these freedoms or to establish a conceptual distinction between ideological and religious freedom. that is because the exercise of ideological freedom is also collective. it may seem strange to say so, but it is only necessary to bring up some examples in which a group of people is organized in line with a particular ideology or ethics, such the cases of the so-called «trend companies»39 or 36 stc 38/2007, 15th february. 37 gimeno sendra, v.; los derechos fundamentales y su protección jurisdiccional, madrid, 2017: 160-162. 38 cañamares arribas, s.; “libertad religiosa e igualdad. algunos supuestos discutidos”, revista general de derecho canónico y derecho eclesiástico del estado, n. 25, madrid, 2011, p. 19-20. 39 companies can adopt an ideology and it has legal foresight. article 4 of directive 2000/78/ec was the first regulation of that included that expression. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 121 marc-abraham puig hernández political parties. actually, different thought-traits determine the guarantees (those traits that make up ideology, a particular ethics, beliefs, convictions, religion…). the guarantees protect its collective exercise, e.g. to declare the immunity of the intimate sphere or to prepare the ground for the classic rights-weighing when manifesting thoughts concur with the exercise of other identically legitimate rights and freedoms, as we saw previously. then, concisely, the guarantees of ideological and religious freedoms arise from the two typical dimensions of thought: internal, where the rational activity of the individual takes place; and external, where it happens to manifest it. the external dimension could stretch a collective exercise of the right and we saw that its regulation took place on the account of religious freedom. 3.3. conceptual difference after having been exposed the common nexus and its guarantees, now it is time to fall on the concepts of ideological and religious freedom. even though it is usual to assume that each one is conceived as an autonomous right, authors like cavas martínez stated that the common point of them lies in ideological freedom, a «complex» right, in his words, which is composed of the rights to freedom of thought, freedom of conscience and religious freedom.40 accepting this position, we assume religion as a subtype or category of ideology. on the other hand, if we assume each freedom is a particular concept, despite the internal forum nexus, we must conceive religious freedom as the transcendental dimension of that individual intimate sphere. it would represent a freedom that structures faith as a substantial content for the individual. that is why its external manifestation exhibits variety,41 that is, individual, collective, public, and personal, through preaching, worship, teaching or observance.42 religious freedom establishes a consonance: the individual acting in accordance with a faith and its postulates, and is the reference standard to those who decide to live adopting a religious theory or morality. by considering that both freedoms, ideological and religious, come from the individual’s internal sphere, we should assume transcendental dimension would play as particular stage of a generic freedom that encompasses all rational activity. we could even agree with the previous two positions, as they would be compatible. in other words, albeit 40 cavas martínez, f.; “libertad ideológica y contrato de trabajo”, in libertad de empresa y poder de dirección del empresario en las relaciones laborales. estudios ofrecidos al profesor alfred montoya melgar, aranzadi, cizur menor, 2011: 58. 41 viladrich, p.j.; los principios informadores del derecho eclesiástico español, pamplona, 1996: 127129. 42 spanish ecclesiastical law scholars usually uses this definition. see calvo álvarez, j.; “los principios informadores del derecho eclesiástico español en la doctrina”, anuario de derecho eclesiástico del estado, n. 14, madrid, 1998: 187-234. this doctrine emphasizes «individual’s transcendence» concept instead of one regarding deity. as ortega y gasset (ideas y creencias y otros ensayos de filosofía, alianza, madrid, 1986, p. 56) suggested, an implicit reference to some kind of deity, in the use of «religion» word, would exclude religions such as buddhism, as a belief not based on god existing faith. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 122 ideological freedom and related legal wording each liberty would hold its own specific object, it is possible to describe the ideological one as generic and the religion one as particular. we would identify the as the transcendental area of the intimate sphere. at this point, we must differentiate these objects with greater precision. therefore, we need to refer to «idea» and «belief». as defined in scc case law, a «belief» lato sensu, religious or not religious, is any conception of the world that the individual may have as long as it is rooted in the thought in such a way as acting is conditioned by it, whereas an «idea» means a mental picture of the world made by the subject.43 in this way, scc has indicated two things: those ideas and beliefs that go beyond a religious dogma fit in autonomous thinking and that dogma, when it constitutes beliefs basis, constitutes the object of religious freedom.44 similarly, a previous study of echr case law would lead us to prove the direct connection between acts, or omissions, and beliefs, convictions or a faith precept that obligates the believer to behave according to it.45 in conclusion, individuals can adopt ideas in order to form thoughts or opinions related to any subject, and they can also have convictions or beliefs, based or not on a precept of faith, that lead them to behave in accordance with that system of principles. while all this can be the object of ideological freedom, only beliefs based on a faith dogma belongs to religious. 4. ideological freedom, freedom of thought and freedom of conscience through the connection between ideological and religious freedom we have seen that law protects several elements of thought, all of which gives form to the individual’s rational activity. among these elements, we have been able to differentiate any idea that the individual assumes in his particular conception of life from those others that that assume as a dogma and pivot on the axis of faith. we have come to this point through the study of legal guarantees, from which we have considered the internal and external dimensions of thought and appreciated their objects. we could have done it through studying the different elements that make up thought, but then having had inferred a legal frame for each element to evaluate them later and finally concluding in one sense or another. in this section, we intend to defend that we cannot reach the same conclusion via studying the guarantees of ideological, of thought and of conscience freedoms. however, we are defending it is possible to establish a conceptual distinction between them. this would lead us to opt for a particular use of each expression. here, we will follow the previous methodological path to show the following topics. 1) a different normative relation, since we are facing equivalent rights proclaimed in similar precepts and not in 43 we can see it in both stc 129/1990, 16th july and stc 292/1993, 18th october. 44 peralta martínez, r.; “libertad ideológica y libertad de expresión como garantías institucionales”, anuario iberoamericano de justicia constitucional, n. 16, madrid, 2012: 257. 45 see echr decisions skugar and others vs. russia, on december 3rd 2009 and cha’are shalom ve tsedek vs. france, on june 27th 2000. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 123 marc-abraham puig hernández the same norm, and how the scc assumes this link between them. 2) the impossibility of distinguishing concepts legally despite being stablished specific guarantees such as conscientious objection. 3) finally, the convenient use for each term through invoking isaiah berlin’s two concepts of liberty. 4.1. normative connection and scc interpretation the normative link between these expressions comes from another connection, that between fundamental and human rights. ideological freedom takes part of this link because it is the right proclaimed in article 16 cs. in this way, the spanish constitution contains the fundamental right to «ideological, religious and cult freedom». at the international level, its correlative is the right to «freedom of thought, conscience and religion», since treaties and international standards ratified by spain shows these wording, as proclaimed in article 9.1 echr (and identically collected in articles 10.1 of the cfreu, 18 of the udhr and 18.1 of the iccpr). given this relationship, we can affirm prima facie that «ideological freedom» finds its correlative in «freedom of thought» and «freedom of conscience» in the international legal field. hence, in legal discourse, courts use any of them indistinctly. for instance, the spanish supreme court decision (sscd) has used them in this way: an ideology and its practice, as an external manifestation of ideological freedom, freedom of thought and freedom of beliefs according to article 16.1 cs…46 this fact could indicate the intention of the spanish constituent to identify ideological freedom with any type of individual has thought to which the international texts refer.47 it may be was for this purpose to which article 16.1 draft48 was placed within the section «public liberties» and written as follows: religious and religious freedom of individuals and communities is guaranteed, as well as that of philosophical or ideological profession, with the only limitation of public order protected by law. bearing in mind that the intention of the spanish constituent could be to protect any form of thought, the expression «philosophical profession» contained in said draft seems 46 sts 1013/2016, 9th may. see as well as stc 74/2018, 5th june. it also occurs with freedom of conscience; see sts 4404/2008, 11th may and stc 151/2014, 25th september. 47 additionally, to illustrate this intention of the spanish constituent, we can look at the congress of deputies publication and the expression «of any kind». there, it was explained that, during spanish constituent process, the right not to declare on religious beliefs was added the same right regarding ideology, when an amendment of mr. tamames was approved. finally, the constitutional text materialized in the right not to declare on ideology, religion or beliefs of any kind. this last expression, «of any kind», was the scc interpretation of the second paragraph 2 of article 16 cs. this process can be consulted on the website: http://www.congreso.es/consti/constitucion/indice/sinopsis/sinopsis.jsp?art=16&tipo=2 48 a spanish constitution draft was published on january 5, 1978, in boe. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 124 ideological freedom and related legal wording to be more appropriate to achieve that end. however, the current wording, ideological freedom, has also allowed to accept an open and generic conception of thought without encountering major objections. beyond this stylistic assessment, the terminological connection we are considering now and its use constitute an ongoing discussion to legal scholars. in that regard, we could identify two currents: on the one hand, the doctrine which advocates for an indifferent use between the expressions «freedom of conscience» and «ideological freedom», that is, one and the same, and that, in turn, would incorporate freedom of thought as a particular instance. göran rollnert, who studied scc case law on this fundamental right, noticed the following difference. scc referred to freedom of thought, which would happen only in the internal sphere, to differentiate it from freedom of conscience as that faculty “guaranteed by the legal order to act according to one’s conscience [and which is used] indistinctly as synonymous with «ideological freedom» including both the internal and external dimensions of the right”.49 on the other hand, the doctrine expressed by prieto sanchís, among others, by which it would be freedom of thought, in an extensive way, the alternative expression to ideological freedom. this author believes that freedom of thought is the “practical and fully social faculty that protects the individual against external coercion or interference that may suffer to behave according to their beliefs or convictions”.50 this generic freedom, ideological or of thought, would encompass freedom of conscience and its exercise. this doctrine is also based on case law, as observed in stc 15/1982, 23th april and stc 53/1985, 11th april.51 an explanation for this position comes from justifying, through freedom of conscience, the conscientious objection as a guarantee that does not frame a single objection assumption in the spanish legal system. according to cs, this assumption is just what article 30.2 regulates for military service. however, as we will see in the next section, conscientious objection is part of the fundamental right to ideological freedom, a right that enables to object to in cases not expressly provided for in our legal system. in short, we have seen two positions that we can summarize as follows. on the one hand, ideological freedom is synonymous of freedom of conscience and in this way freedom of thought would be a subtype of them. on the other hand, ideological freedom is synonymous of freedom of thought and freedom of conscience would be a type, or subtype, thereof. in any case, we can infer that ideological freedom is a generic and broad concept, since in both positions it encompasses the other liberties, either as a synonym, or as a particular instance. 49 rollnert, g.; “ideología y libertad ideológica en la jurisprudencia del tribunal constitucional (19801990)”, revista de estudios políticos (nueva época), n. 99, madrid, 1998: 234. 50 prieto sanchís, l.; “el derecho fundamental de la libertad religiosa”, in manual de derecho eclesiástico, trotta, madrid: 57. 51 prieto sanchís, l.; “libertad y objeción de conciencia. stc 15/1982, de 23 de abril”, persona y derecho, revista de fundamentación de las instituciones jurídicas y de derechos humanos, no. 54, pamplona, 2006: 266. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 125 marc-abraham puig hernández let us refer to how the scc has interpreted this connection. for the scc, freedom of thought does not pose serious complications, since it is the expression contained in article 9.1 echr, linked to article 16 cs guarantees in the echr forum. as rollnert pointed out, the scc case law finally defined the concept of ideological freedom as a synonym of freedom of thought.52 therefore, a previous study of both articles leads us to conclude that, actually, they are equivalent rights. ever since the scc, maximum cs interpreter, has determined the use of ideological freedom and freedom of thought as synonymous, we can conclude what kind of link exists between them. however, the connection between ideological freedom and freedom of conscience requires higher accuracy. the same author explained the concept of freedom of conscience is abstract, generic and independent of ideological freedom.53 regarding the statement «freedom of conscience is an abstract concept, generic and independent of ideological freedom», we can observe what follows. in the stc 15/1982, 23th april (on the conscientious objection to the military service as planned in article 30.2 cs), the scc identified the relationship between ideological freedom, freedom of conscience and conscientious objection in a descending line from gender to species. in other words, conscientious objection is a specific manifestation of freedom of conscience and the latter, in turn, constitutes a specific instance of ideological freedom.54 with freedom of conscience, a moral judgment about beliefs or convictions, of any nature, becomes latent. along with those beliefs rooted in consciousness, scc case law also affirms the commitment of the individual’s actions to individual’s convictions. however, this is not far from the premises we previously observed for ideological freedom. at this point, we could make the following two observations: that, in fact, freedom of conscience has a specific meaning, particular, different from the generic one that give rise to ideological freedom; and that, following this connection, conscientious objection is one of the possible manifestations of the right to ideological freedom, through the exercise of freedom of conscience. regarding the first objection, we could ask if a belief rooted in a moral judgment differs substantially from that generic object of the ideological freedom, that is, from any idea, thought or conception of life. nevertheless, does not a moral judgment on any belief, religious or not, designate a conception of life and an equal and generic concept? it is difficult to establish a criterion to decide which beliefs are sufficiently rooted in an individual and not in another one. in our opinion, this is the origin of the terminological confusion. our proposal will go through looking for a solution through the field of individual’s action. in other words, we believe the important thing, in differentiating both concepts, is not what each scope, object or concept is, but rather how we can manifest 52 this constitutes statement of the law since the stc 19/1985, 13th february, by using the expressions freedom of thought and ideological freedom as synonyms. 53 rollnert, g.; la libertad ideológica en la jurisprudencia del tribunal constitucional (1980-2001), cepc, madrid, 2002: 71. 54 through this concretion, scc incorporated resolution 337, of 1967, of the council of europe, in which that conscientious objection derived from the individual liberties of conscience and of religion was recognized. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 126 ideological freedom and related legal wording each liberty. however, let us leave aside this question for now to focus on the second observation and thereby show that conscientious objection guarantees do not ensure a clear distinction between them. 4.2. conscientious objection as a guarantee we have seen that the normative link between ideological and conscience freedoms is different from the one that binds the former with religious freedom. from how scc have been using those expressions, we have concluded that freedom of thought and ideological freedom are expressions that we ought to consider synonyms in practical discourse. moreover, its connection with the freedom of conscience is that of gender to species, in such a way that conscientious objection is a manifestation of the freedom of conscience and the latter an instance of the ideological one. as we saw on religious freedom section, the same type of guarantees does not complicate the subsequent conceptual distinction between both expressions. through these following lines and making use of conscientious objection, we will reinforce we cannot reach the same conceptual distinction, or at least as clear as we did in the first case. a good definition of what we should understand by conscientious objection was the one offered by guillermo escobar roca, who explained it as follows: conscientious objection consists in an opposition, sustained in moral reasons, of an individual to the fulfilment of an authority’s order or mandate or, what amounts to the same thing, of a legal duty, understood in the broad sense […]. regardless of the nuances about such duty, there seems to be agreement among the supporters of this strict concept in which the objection is not directed against anything, but only against a rule of a coercive type backed by the state legal order.55 from these remises we can observe two norms with contradictory content and in conflict. on the one hand, an obligation established in one norm, and, on the other, the prohibition of violating beliefs in other one. within these coordinates we can affirm that the right to avail one’s beliefs arises from facing a legal obligation contrary to liberty to adhere oneself to any conviction. this right is configured both on freedom of conscience and on ideological freedom, because the respect for beliefs can be explained following the terms in which we have exposed each one. in addition, we can make this clearer through exposing how ideological freedom assumes conscientious objection as one of its possible manifestations. although we already saw that the scc established the connection between conscientious objection and ideological freedom by means of freedom of conscience, this 55 escobar roca, g.; la objeción de conciencia en la constitución española, madrid, 1993: 42. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 127 marc-abraham puig hernández line has not always responded to the same logic, because, on the normative front, article 16.1 cs does not contain expressly this right. in this sense, the beginnings of ideological freedom and freedom of conscience terminological correlation were not peaceful in the spanish legal system, since different articles than the ideological freedom one included specified assumptions of conscientious objection. what is more, one of these articles is located outside the fundamental rights and freedoms list.56 actually, in the cs there are two specific objection cases, that of article 30.2 and that of 20.1.d, relating to military service, already mentioned, and the so-called «conscience clause» of the communication’s professionals, respectively, and a third implicit assumption, according to the interpretation of the scc, concerning a general right to conscientious objection under article 16.1 cs. escobar roca carried out this classification, explicit and implicit, of conscientious objection in the cs, to indicate that 1) only the necessary suppositions are given for the exercise of the right to object when we are in the presence of an objective conflict of conscience (that is, when there are typical characteristics of moral judgment), which also (except in the special cases of articles 30.2 and 20.1.d) must have its foundation in the postulates characteristic of a known ideology or religion. 2) the general right of conscientious objection is not an absolute right, but a prima facie position that can yield in the presence of various limits, whose only common characteristic is its constitutional seat. obviously, the game of such limits cannot be of such a nature that it reduces the content of the right to its practical disappearance.57 we must understand the link between conscientious objection and the ideological freedom pointed out by the scc according to the following premises. 1) ideological freedom can be expressed specifically as a “legally guaranteed possibility of accommodating the subject’s behaviour and way of life to its own convictions”58; 2) and, also, as a “legal guarantee of the abstention of a certain conduct”59 required from the powers of the state, provided that it constitutes an affront to such convictions. of course, when this link is 56 the opinion of gimeno sendra (los derechos fundamentales y su protección jurisdiccional, madrid, 2017:163-164) is that “here is a problem that is that no more” after the abolition of the compulsory military service and the army professionalization. conscientious objection, as regulated in the conscientious objection law of december 26th, 1984, and already repealed, did not contemplate not joining the ranks, but obtaining the status of objector to defend the state militarily. among objecting reasons, “religious and ideological motivations were included, but not the political reasons that could be used as religious or ideologically […]. on the other hand, other emerging conscientious objections take as paradigm the previous one, for example, the one of doctors and other health professionals to performing abortions or to intervening in them, the faithful of certain religions to receive certain medical treatments, the citizens to be part of a jury or a polling station […], the objection of fiscal awareness […]. an eventual conscientious objection has emerged to teach a subject in certain schools, etc.” 57 la objeción de conciencia en la constitución española, op. cit.: 203. 58 this freedom of conscience definition, as ideological freedom concretization, was included in a scc order (atc) after the mentioned sentence, cfr. atc 617/1984, 31th october. 59 stc 15/1982, 23th april. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 128 ideological freedom and related legal wording given, the limits of ideological freedom, as indicated in cs, are applicable to the exercise of this right. we find the real limitation to its exercise in article 16.1 cs, which, as a matter of principle, could be only that necessary for the maintenance of public order defined by law.60 the limit of these freedoms does not complicate the possible generic scope about the exercise of conscientious objection: if the only limit lies in public order defined by law, it would be possible to object to legal obligations beyond the assumptions foreseen in the constitution itself, which would send us again to the legal configuration of any legal relationship. this has not always been the case. a public order «as defined by law» seemed to indicate the need to regulate the exercise of conscientious objection. the spanish constitutional case law initially assumed this conception. fernando arlettaz has explained the scc expressed this position by specifying that the generic right to conscientious objection would only be possible when the constituent or the common legislator expressly provided for it.61 thus, although freedom of conscience designates a “specification of ideological freedom” in whose content the “legal guarantee of abstaining from a certain conduct” prevails,62 according to the scc interpretation, a legal development would be mandatory to grant effect to the right to conscientious objection with generic scope, that is, as a manifestation of the fundamental right to ideological freedom. a mandatory legal development for exercising the generic right to conscientious objection would imply that the legal system would establish the conditions for that exercise and, at the same time, define the assumptions in which this right works. we can summarize this position as follows: it seems that, without the legal reference, it would not be possible to object to any legal norm. this debate definitively concluded with stc 145/2015, 25th june. the scc admitted the «protection»63 of the right to conscientious objection as a manifestation of the fundamental right to ideological freedom. by doing so, it is unnecessary that a norm enables the exercise of this right (the so-called interpositio legislatoris) but, in any case, it becomes evident the need for an external reference, that of public order defined by law. in the end, the law specifies how to weight its exercise rather than regulating it. in the absence of the legal external reference, we would be facing what some authors have called a “natural law lacunae”.64 in essence, this path (how conscientious objection operates as a manifestation of ideological freedom) has shown us that, at first, it seemed to be possible to sustain a 60 for instance, as stc 141/2000, 29th may confirmed. 61 arlettaz, f.; “objeción de conciencia: consideraciones sobre españa a la luz de la jurisprudencia europea”, revista internacional de derechos humanos, n. 3, mendoza, 2013: 193-194. 62 see stc 15/1982, 23th april. 63 we use the word «protection» by lacking of any better word for the spanish «amparo». 64 gonzález pérez, j.; la dignidad de la persona, pamplona, 2017: 201-208. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 129 marc-abraham puig hernández normative origin distinction: conscientious objection and freedom of conscience looked different concepts from the ideological freedom one. however, it is a patent fact at present that those constitutional precepts that contemplate conscientious objection are just specific assumptions of it because of there is a general right to conscientious objection by virtue of the fundamental right to ideological freedom. therefore, a moral judgment based on beliefs or convictions connects with both freedoms, ideological and of conscience, and the exercise of this right belongs to the realm of a fundamental right, which also standardise the two of them. let us return to the point where beliefs rooted in conscience, religious or not, are the object of this right. as a fundamental right, they have protection against public powers. to find the appropriate use of each wording we must insist in this last sense. 4.3. berlin’s two concepts of liberty we have verified that both the cs and the echr, among other norms, announce a series of freedoms linked to the rational activity of the individual in a similar way. we have also seen that freedom of thought can be homologous to the ideological one according to the scc case law and that both conscience and religious freedom reflect particular instances with respect to the generic scope designated by the former. in this way, the rational activity of the individual and particularly any idea, belief, opinion, thought, etc., that is formed on life corresponds to the object of ideological freedom (or freedom of thought). religious freedom confines beliefs to a specific background, a dogma of faith, but conscientious freedom places us before beliefs, not necessarily religious, strongly rooted in the individual’s internal forum, what we call, strictly speaking, conscience. as long as we speak of any type of belief, the object of freedom of conscience elevates its level of abstraction to that generic one designated by the ideological freedom. we have come up with a vague concept that certainly lends itself to confusion. here, we could justify that, while religious freedom and freedom of conscience belong prima facie to the scope of individual’s action, namely in acting in accordance with any rooted belief; ideological freedom lines with the capacity to assume any conceptual ideal.65 we must warn that this identification would proceed provisionally to describe the theoretical distinction of the concepts, since a rigorous exposition of them forces us not to prioritize the scope of action on the ideal or vice versa. certainly, by dispensing on of the two planes, action or ideal, we would be mutilating these freedoms. that is why, according to the above, we believe berlin’s work can help to deal with it in order to justify our hypothesis within widely accepted theoretical margins, as we think that is what happens with his work. berlin proposed the concepts of negative and positive liberty.66 in his work, «positive» and «negative» are not evaluative attributes, but descriptive. in this way, the author explains both concepts as follows: 65 some academics suggest this position, for example, gonzález pérez, la dignidad de la persona, op.cit., and díez-picazo giménez, sistema de derechos fundamentales, aranzadi, cizur menor, 2013. 66 which other authors had previously treated. berlin himself takes into account the notion of negative freedom of schopenhauer’s work in his essay. that said we find that berlin’s work offers a series of the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 130 ideological freedom and related legal wording on the one hand, negative liberty would place us before the absence of obstacles, created by man, to the action of individuals. the absence of these hindrances contributes to freedom insofar as such obstacles disappear. throughout section i of his text, we can observe the concept of negative liberty in the liberal institutions related to the protection of individual rights, in the limitation of political power and in the defence of pluralism.67 we can define the concept of freedom of conscience within these margins. indeed, these features characterize this freedom: firstly, because freedom of conscience offers a series of guarantees for protecting individual’s convictions. among them, we have placed special emphasis on the right to conscientious objection, which is why we will not insist again on it. secondly, because these guarantees display a limitation to public powers, and particularly to legislator, the one that, incapable of knowing all the convictions and beliefs of its citizens, regulates human behaviour in any field, through arranging a series of means, that is, legal obligations, to achieve the aims pursued with intervening. moreover, the ethical minimum contained in these means can be at odds with the ethical minimum that any individual, in his deep conscience, is convinced that the right should respect to achieve the proposed aims. given this affront, this right is born to accept the ethical minimum that the public powers cannot trespass. as we explained, the law arises from the contradictory sense of two rules, which, on the one hand, creates the legislator to establish a conduct as mandatory and which, on the other, prohibits exceeding the margin established by the freedom of conscience. in this sense, we affirm the protection of the individual against the activity of the public powers. finally, the negative notion of freedom allows us to accommodate pluralism, since one’s own convictions manifest particular views on the ethical character of the law, but not with the norms that public authorities imposed. it is necessary to insist here that, in order to carry out their functions, it is materially impossible for public authorities to know each citizen’s ethical convictions and to show the correct observance of the principle of proportionality. in other words, legislator must act causing minimal injury to the margin of freedom attributed to citizens when what is not prohibited is allowed. in this context, guarantees of freedom of conscience enact pluralism. we cannot incardinate the principle of proportionality in a kind of arithmetical operation that weighs each individual’s ethical point of view. on the contrary, proportionality requires another scale, not arithmetical or quantitative, but qualitative, in this case, observing and respecting the «constitutional essentials»68 that delimit the margins to public powers to intervene. of course, among constitutional essentials we find freedom of conscience, from which we can derive the citizen’s guarantees to respect a moral conviction rooted in conscience. those guarantees which allows citizens to assess the legal system or the whole of society. elements, which fit better in our work, as we will see throughout this section. 67 berlin, i; four essays on liberty, oxford university press, 1986: 121-131. 68 we have taken this expression from john rawls’ political liberalism, columbia university press, new york, 1993. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 131 marc-abraham puig hernández for illustrating this idea, it may be helpful to make use of aristotelian notions, such as equity. from laws’ generality injustices are born. it is not because the laws being unjust, but because they must be general, universal, and that necessary, justice to regulate generality can lead to injustices in specific cases. equity, therefore, is justness and fairness: the justice we observe when applying the law, we take into account the nature of things. therefore, as ricardo garcia manrique explained, equity is to seek justice in a specific case when law or its application cannot achieve it.69 in seeking justice in a concrete case, we must have an influence on the nature of things and regarding freedom of conscience, on the diversity of moral judgments that each individual forms on their beliefs, namely, on their individualized vision of life. is not respecting that individual vision the best example of ideological plurality? if so, the guarantees that allows constraining, or reducing, those obstacles that the public power puts on the freedom of conscience are nothing but the guarantees of pluralism. on the other hand, positive freedom refers to exercising political power, that is, that freedom is given in relation to the margin to act according to one’s will without having to obey another one. in addition, of course, the individual’s will and not any other.70 in berlin words for it is this -the positive conception of liberty: not freedom from, but freedom toto lead one prescribed form of life -which the adherents of the negative notion represent as being, at times, no better than a specious disguise for brutal tyranny.71 the author’s vision is markedly political. we must realize that this notion of freedom is not really far from the negative one, at least in the theoretical aspect. in the «negative» side, the need not to find obstacles to act according to one’s will is evident, while positive freedom demands the exercise of power and action according to one’s will without the obstacle of another power. indeed, both notions emphasize two characters of the same freedom and hence the author explained that defending the one or the other brings very different consequences. berlin valued positively the absence of limitations highlighting its historical performance (which leads us to think of classical liberalism) and compared it with exercising power without any limitation (and in this case makes us thinking of emancipatory theories). it revealed two irreconcilable meanings of freedom, since they obey hardly compatible demands related to the ability to satisfy the aims or purposes of life: limiting obstacles to hold power vs. holding all power. what we notice with this is that the two notions proposed by the author demonstrate the same generic freedom that, adjusted to the rational scope of the individual, we legally identify as ideological freedom, or freedom of thought. if so, berlin’s two concepts of freedom allow us to justify a different use of ideological freedom regarding freedom 69 garcía manrique, r.; el valor de la seguridad jurídica, iustel, madrid, 2012: 293. 70 four essays on liberty, op. cit.: 131-134. 71 four essays on liberty, op. cit.: 131. the age of human rights journal, 14 (june 2020) pp. 109-136 issn: 2340-9592 doi: 10.17561/tahrj.v14.5480 132 ideological freedom and related legal wording of conscience. while ideological freedom would encompass both concepts of freedom, freedom of conscience genuinely corresponds to the salient attributes we saw on negative freedom. 5. conclusion the connection between ideological freedom and freedom of thought does not seem particularly controversial. in accordance with the normative link between article 16 cs and article 9 echr, a previous study of its guarantees and objects leads us to assume that, in fact, these are equivalent rights. ideological freedom and freedom of thought are equivalent expressions, which evidence the same generic reality of thought and, therefore, we can accept a synonymous use. freedom of conscience and ideological freedom, or freedom of thought, indicate that the individual, on the one hand, is notionally positioned before life and, on the other hand, has an own idealistic system on which that person acts consequently. that is, being able to carry out “a rational activity by means of which an ideological system is created based on convictions or autonomous beliefs born in the light of free-thinking”, or “issuing an opinion or judgment of the reason practice about the morality of an action”.72 when these wording appears indiscriminately as synonyms in the legal discourse it would be appropriate to use a generic expression to refer to the positioning of the person as comprehending the surrounding reality. that is, to use freedom of thought or ideological freedom. we saw the scc case law and most of the spanish legal scholars, considered both of them liberties that encompass other specific freedoms. finally, freedom of conscience evidences that the individual acts in accordance with any beliefs or ideas aiming to limit some interferences that usually comes from public powers. that is a freedom in its negative meaning. hence, using this expression indistinctly, as synonym of ideological freedom, is not convenient, since it genuinely represents a specific institution for protecting an individual right, which also limits public powers and allows to defence of pluralism. by using freedom of conscience, the plausible thing will not be to think about the rational activity of the individual, that is, as a particular instance of ideological or thought freedom, but rather about the specific meanings that we have pointed out, such as exercising the right to conscientious objection. references arlettaz, f., “objeción de conciencia: consideraciones sobre españa a la luz de la jurisprudencia europea”, revista 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(cuesta, 2015; núnez, 2006). * researcher of the research group on population and sustainable local development (pydlos) interdisciplinary department of space and population (diep), university of cuenca, ecuador. andres. ramirez@ucuenca.edu.ec ** coordinator of the research line on citizen security and human rights of the research group on population and sustainable local development (pydlos) -interdisciplinary department of space and population (diep), university of cuenca, ecuador. antonia.machado@ucuenca.edu.ec mailto:andres.ramirez@ucuenca.edu.ec mailto:andres.ramirez@ucuenca.edu.ec mailto:antonia.machado@ucuenca.edu.ec andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 329 the inter-american association of public defenders (asociación interamericana de defensorías públicas) (2014) expresses that the situation in which many persons deprived of liberty are found in the region (ibero-america) is critical due to among other causes -, prison overcrowding, episodes of violence in prisons and the precariousness of the conditions of deprivation of liberty. the notable structural deficiencies of the detention centers and prison systems in the region are also mentioned. intriago muñoz & arrias añez, (2020) argue that prison overcrowding causes other effects on the health and well-being of people living in these conditions and can also make social rehabilitation work difficult and lead to inhuman, cruel or degrading treatment. in addition, it refers that many people deprived of liberty come from areas of social exclusion, with a precarious economic situation and with their most basic needs not covered. in the ecuadorian case, according to pazmiño (2011) a significant number of people deprived of liberty had another type of vulnerability, like be it economic, labor (before entering a detention center), health, gender, among others. in this context, it is essential to make an analysis of the experiences of people deprived of liberty and regarding access to justice in the face of violations of their human rights by both the state and its agents, as well as other persons deprived of liberty; in addition to inquiring about the testimonies of the actors linked to the social rehabilitation system to determine the main problems to achieve the human right of access to justice by the pdl. studies in this area have made significant progress in accounting for the legal and regulatory frameworks that protect this right, however, there is still a theoretical gap about highlighting the personal experiences of the pdl and the vision of actors linked on the system about the main bottlenecks of access to justice that this path reveals to identify leverage points focused on the practical experiences of the actors and find solutions to the increasingly alarming crisis of the prison system. thus, this research investigates this issue from the case of “turi” social rehabilitation center (src), located in the southeast of ecuador, in the city of cuenca, considered the third most important city in the country, and which houses approximately 2,600 persons deprived of liberty from various areas of the country and from other latitudes due to its characteristic of a maximum security prison. the reality of this src is similar to that of other src in the country since because the social rehabilitation policy is exclusive to the national social rehabilitation system and is deconcentrated in the management of the localities, since there are the same guidelines for all src of the country in relation to budget allocation and management, programmatic axes, protocols, regulatory frameworks and assistance personnel. (national social rehabilitation system, 2020). in addition, it is important to analyze the case of src turi due to its most recent problems. on february 23, 2021, a series of riots in the 4 largest prisons in the country resulted in the death of 79 inmates. that, according to reports issued by the inter-american commission on human rights and the organization of american states, placed ecuador on the list of the 10 main prison massacres that have historically been perpetrated in south america. of the 79 deaths nationwide, src turi registered the highest figure with 34 deaths. (el comercio, 2021) experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 330 one of the cases that highlights the importance of access to justice as a tool for claiming violations of the rights of the pdl took place in the src turi of the city of cuenca. this case of abuse from the unit for the maintenance of order (umo by its acronym in spanish) against those deprived of liberty on may 31, 2016. the incident occurred when several persons deprived of liberty were subjected to beatings and cruel treatment during a routine police procedure. the event was recorded and viralized by social networks. when the case was prosecuted, it was determined that there was a violation of human rights. the police abuse was perpetrated in a group of more than 200 victims, "however only 13 pdl took legal action, reflecting the fear and subordination that still exists in the social rehabilitation centers due to the presence of power relations." (aguilar, 2017; p. iv) in this order of ideas, the research will delve in the human rights of persons deprived of liberty and access to justice as central variables of analysis. 1.1 human rights of the pdl people deprived of liberty are rights holders; however, gonzález (2018) affirms that some pdl’s fundamental rights are restricted in order to safeguard public order and social harmony. that limitation is reduced to what is strictly provided in the conviction. article 4 subsection 2 of the criminal code of ecuador (coip) establishes that “persons deprived of liberty retain ownership of their human rights with the limitations of the deprivation of liberty and shall be treated with respect for their dignity as human beings. overcrowding is prohibited” (coip, 2014). the organic comprehensive criminal code of ecuador (coip by its acronym in spanish) determines that persons deprived of liberty shall enjoy the rights and guarantees recognized in the constitution of the republic and international human rights instruments. in its text, it lists and develops the content of the rights of persons deprived of liberty: • right to physical, mental, moral and sexual integrity. • right to freedom of expression, to receive information, give opinions and disseminate them by any means available in the detention centers. • right to freedom of conscience and religion and to have it facilitated, including not professing any religion. • right to work, education, culture and recreation of persons deprived of liberty and guarantees the conditions for their exercise. • right to their personal and family privacy. the person deprived of liberty has the right that other people respect his private life and the private life of his/her family. • right to the protection of personal data, which includes the access and use of this information. • right to associate for lawful purposes and to appoint their representatives, in accordance with the constitution of the republic and the law. • right to vote (suspended right for those who have a final conviction) • right to file complaints or petitions. • right to be informed, at the time of their admission to any detention center, in their own language about their rights, the rules of the establishment and the available resources to formulate petitions and complaints. andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 331 • right to preventive, curative and rehabilitative health, both physical and mental, timely, specialized and comprehensive. • right to adequate nutrition, in terms of quality and quantity, in appropriate places for this purpose. • right to maintain their family and social ties. they must be located in deprivation of liberty centers close to their family, unless they express their contrary wishes or that, for duly justified security reasons or to avoid overcrowding, their relocation is necessary. • right to communicate with and receive visits from family and friends, from their public or private defender, and the intimate visit of their couple, in places and conditions that guarantee their privacy, the safety of people and the deprivation of liberty center. • right to regain his immediate freedom, when he completes his sentence, receives amnesty, pardon or the precautionary measure is revoked. • right to proportionality in the determination of disciplinary sanctions. all these rights must be guaranteed in practice by the state so that it is possible to speak of effective social rehabilitation and respect for human dignity. however, as will be seen later, the reality in the prison context of ecuador is far from that. 1.2 access to justice in the penitentiary system of any part of the world there is a paradox regarding the pdl protection of rights since the state is the one in charge of the rehabilitation and care of the inmates; to this extent, there may be rights violation by state agents themselves, which implies that the pdl may possibly have to report to the perpetrator himself. furthermore, deprivation of liberty by its very nature prevents equal access to justice. it should also be mentioned that the concept of access to justice has constantly evolved. as stated by bernales (2019), access to justice raises the difficulty of its concept and content determination. for this research, based on the concepts granted by begala and lista (2001) and añez, rujano and párraga (2011) it is argued that access to justice is a right consisting of five stages. in the first place, the victim must be willing to report to the judicial system, for which they must have a certain degree of legal literacy and know their rights. then it must activate the judicial system, the state must guarantee due process of law. this is followed by a legal solution granted by the state and finally its execution and an eventual restitution of rights. this concept summarizes access to justice as a whole journey, addressing all problems and integrality of this right. as we can see on this graph, access to justice implies a journey that victims have to follow to find justice in order for the state to return their rights. it also implies there are some preconditions such as the predisposition to report, the access to legal representation, knowing how the process is, among others. the guarantee of access to justice is the state’s principal responsibility and where many public and private actors are involved. there are also some process conditions such as the awareness of pdl about human rights and the state obligations. without these conditions, the reach of the fifth stage is almost impossible. experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 332 after outlining the central aspects in relation to contextualization and the theoretical elements, in the following paragraphs the article presents a section about the methodological issues that were followed for information gathering and subsequent study. then, pdl opinions and experiences about access to justice are analyzed plus the viewpoints of different actors involved around inmates' access to justice. finally, a discussion is included in which the results of the study are contrasted with the theory and previous researches in the same line to obtain the conclusions. 2. materials and methods this research was approached by a qualitative stance guided by previous significant research topics, where questions and hypotheses do not have an exact chronological order since they can be developed before, during or after the collection and analysis of the data (hernández, 2014). first, these activities often serve to discover what the main research questions are; then, to refine and answer them. hernández (2014) assures that although there is an initial review of the literature, it can be complemented at any stage of the study supporting from the approach of the problem to the report results. in this type of investigation, it is sometimes necessary to return to previous stages. 2.1 preparation of the interview for the present study, in-depth semi-structured interviews were applied to both the pdl and the actors involved in pdl’s access to justice. for the interview guide preparation, an operationalization of variables was made in order to generate and delimit graph 1: path of access to justice source: various authors elaboration: the authors, 2019 andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 333 the different axes, categories and codes. with these two interview guides were made: one directed to the pdl in simple terms for their understanding (according to the broad socio demographic profile of the prison population) and some questions were indirectly consulted on susceptible issues to avoid possible re-victimization. the second interview guide was directed to the key actors with the use of more technical terms in which mainly were addressed issues of legal nature. 2.2 population interviewed interviews were carried out during july, august and september of 2020 in cuenca city. on one hand, 21 interviews were conducted with persons deprived of liberty in the src turi located in cuenca-ecuador. this penitentiary center, being regional and one of the largest in the country, receives pdl from different parts of ecuador. the vast majority of those interviewed were part of the prison population who are in the educational rehabilitation axis. in order to have different points of view, 4 women, 16 men and a transsexual person were interviewed. the 21 interviewed people were in age range between 26-55 years old; about their nationality, there are 18 ecuadorians and 3 colombians pdl; about self-perceived ethnic identity, the majority affirmed to be mestizos, also others said mulatto, white and there were an indigenous minority. they had their last domicile before liberty deprivation in various cities of the country such as cuenca, cañar, quito, ibarra, machala, riobamba, manabí province and in the neighboring country colombia. the interviewees' educational level was varied, with people who attended or are currently studying at the turi src turi from primary level to fourth level education. this research shows some limitations around the sample of people deprived of liberty who were interviewed because due to the restrictions of the rehabilitation center, it was not possible to interview maximum security pdl or pdl that were not linked to the education axis. furthermore, it is worth highlighting the sincerity with which the majority of the pdl interviewed responded, which allowed the development of various points of view and contrasting them along the proposed lines. interviews were also made to actors involved in pdl access to justice. according to martínez (1991), key informants are “people with special knowledge, status and good information capacity.” based on this criteria, four private lawyers who practice pdl’s technical defense were sought. in addition, the criteria of public defenders specialized in pdls were asked, plus the opinion from the penitentiary guarantees unit judge of the city and a former turi src director. in total, 7 key actors involved in the pdl's access to justice were interviewed. for the selection criterion of private lawyers, the snowball method was used, through which the first interviewees gave clues and names about which actors were suitable to be interviewed. the interviews were applied to both men and women with expertise and knowledge in the matter, thus respecting gender parity criterion. 2.3 collection and processing of information in order to obtain and process data, first, a triangulation of the information was carried out. according to hernández (2014) it is convenient to have several sources of experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 334 information and methods to collect data, in this way, a greater richness, breadth and depth of data can be achieved. thus, a better understanding of the phenomenon studied is attained. in qualitative research, data collection and analysis occur practically in parallel. due to the prohibition of entering electronic devices inside prison, the pdls interview was carried out only by pencil and paper notes. thus, the data that were relevant to the investigation were chosen and recorded. to determine the number of pdl’s interviews needed to apply we used the “saturation” criteria. in this way, after a certain number of applied interviews, information obtained was repeated and new information was no longer attained. these data were then digitized and classified according to codes with the atlas.ti software. in relation to the interviews for the key actors, a recording device was used for its application. after this, recordings were transcribed completely and only key information was classified by codes using atlas.ti software. throughout the collecting process, unstructured data was received, which in the analysis process was provided with structure and meaning. finally, the research results were generated, then contrasted with theories and explanations given on the matter. 3. results the results of the research are presented in two groups: first, from the perception of persons deprived of liberty and then from the experience of the key actors involved in the path of access to justice. in each case the results are broken down into different topics that will be explained in advance. 3.1 main problems that people deprived of liberty present in the path of access to justice the following section analyzes the results of the opinions of persons deprived of liberty regarding central and specific issues such as their legal literacy, knowledge to make complaints or to report, knowledge of their prison benefits, possible violations of rights suffered, their predisposition to make a complaint and their opinion on some key institutions in access to justice. human rights knowledge in matters of legal literacy, most people deprived of liberty interviewed state that they have not received education on human rights. the minority of inmates who have received talks on human rights believe that this has been possible because they have accessed privileged places such as radio stations that operate inside jail: “yes, i have received it, i am on the radio and there are talks there. they (the crs) only give it to selected people. we have more support from some officials because we work with them on the radio” (eppl10m) in the opinion of many pdl, the talks have very good results, they consider it a weapon with which they can protect themselves against any right violation. "it would be very good if they would give talks here" (eppl02m) "there is a lot of ignorance by ourselves" (eppl01m) andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 335 regarding knowledge about rights that are suspended due to liberty deprivation, the vast majority of pdl interviewed affirm that they do not know about it. the pdl's knowledge of filing complaints in relation to the possibility of the pdl to make complaints and petitions, many interviewees express not knowing how to formulate them; other pdl interviewed affirm they only know: "that the complaint can be formulated to the judge of criminal guarantees." (eppl01m) some pdl feel that knowing how to make complaints is a benefit. “it would be good to know how to write a letter to get to the director, etc. but i don't know anything. " (eppl10m) likewise, some pdls show low expectations regarding their claims: “the truth is, i have sent writings to the judge, coordinator, but there is no answer. i do know how to make complaints, but i have accumulated many complaints that have not been answered.” (epplm17dis) knowledge of prison benefits regarding the prison benefits, most of the pdl interviewed are aware of them. many are dissatisfied with the effectiveness and application of prison benefits. many pdl report delay and difficulty in obtaining a prison benefit. it is expressed: “i have been following my process for six months, but there is no way to contact the authorities (…) there are people who have already paid their sentence, they do not have a lawyer so they do not go out, those of us who have no money stay here” (eppl13m55) there are cases in which those deprived of liberty have far exceeded the required percentage of punishment to apply for prison benefits; however, they have not been granted such benefits due to process delay. violation of rights some pdl mention that rights are not guaranteed, another sector believes that only a few rights are guaranteed (mainly health, food and education) (eppl12m) regarding health, there are several opinions that agree that it is a right that is quite limited. few of the persons deprived of liberty interviewed refer to other rights besides health, food and education. the right to freedom of expression is not guaranteed according to some interviewed pdl. some pdl interviewed report that in their personal case they have not suffered any violation of rights. along these lines, a pdl who was born in colombia states: "i thank god for being here and not in colombia, there is no overcrowding here, there are many problems in colombia" (eppl16m) on the other hand, some pdl state there have been rights violations against them, however, only 4 pdl assure that they reported this. it is commented: "a violation of rights happened to me, but if it does not become mediatic they do not hear us, right now a guide comes and hits me and nothing happens." (eppl02m) experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 336 only one pdl belonging to the lgbti community has denounced on several occasions. some pdl, despite having suffered some type of violation of rights, have not reported it. willingness of the pdl to file a complaint or petition many interviewees state that they would not file a complaint or report for various reasons that are summarized in the figure 1: figure 1: pdl’s reasons to don’t report source: interviews with pdl at src turi (2020) elaboration: the authors as we can see on this table, the major part of pdl don’t report a violation of human rights because of distrust of the judicial system and in second order because they perceive there is a lack of time. the interviews show that some petitions which were given to the administration didn’t have attention or response from them. on the other hand, very few pdl state that they would report if there were any rights violations. regarding the solution the state gave to the pdl’s complaint, the majority of interviewees cannot answer this question because some of them did not suffer a violation of rights, and if they did, they did not denounce it. indeed, there are only three interviewees who gave an opinion on this point. everyone agrees that the solution given by the system was not adequate. andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 337 pdl’s opinions on some key actors in access to justice people deprived of liberty are closely linked to certain actors and institutions in order to access to justice. first, they have a day-to-day relationship with src turi officials in order to carry out their rehabilitation. src officials are those in charge of ensuring the validity of their rights and reporting any incident. regarding the perception that pdl have about the work of src turi officials, there are two positions: interviewees who believe officials are doing a good job and other interviewees who think they are not performing their role in a good way. the opinion that people deprived of liberty have about prison guards is diverse. there are eclectic opinions admitting: “there are some guards who do their job very well, and others don't, there are two groups. others delegate their work to us" (eppl19f) however, there are opposing opinions: "they are prisoners' puppets, they fulfill what the prisoner gangs say." (eppl18tran) another institution that has great importance is the public defender's office, this dependence provides free legal assistance for people who do not have the resources to hire a lawyer. many people deprived of liberty state they cannot comment on the service provided by the public defender's office because they have not had access to it. interviewees comment: “i have not had access to it. they almost never come” (eppl19f) some interviewees affirm the services of a public defender were offered to them; however, they did not need it. finally, there are pdl that were offered services from a public defender and accepted it. regarding this last group, there are opinions that negatively rate the service and others that classify it as excellent. it is narrated from the inmates: “i have had a bad experience, we have not had help from public defenders, we have had to look for private lawyers. although, not all public defenders are this way because there are good public defenders." (eppl12m) from another minority perspective it is commented: "excellent, they (public defenders) wanted to help me" (eppl09mi). the opinion of pdl on the role their private lawyers have played with respect to their cases is diverse. while some pdl claim that their attorneys have not played a good role, there are other positive opinions. there are interviewees who cannot give their opinion on this topic because they have not had the services of a private lawyer for economic reasons. finally, regarding the judge of penitentiary guarantees, some pdl do not know this authority. there are interviewees who consider that the judge does not carry out any work for their processes and does not look at the human side. the pdl interviewed, in their entirety, affirm that in prison there is no justice: "here there are rules set by the prisoners themselves, and if you do not comply, it can end badly." (eppl11m) in table 1 we can see the main problems identified by pdl and key legal informants interviewed at src turi in the path of access to justice. as it shows, pdl didn’t reach the third stage, even less the fifth stage because of problems related with the system, the gangs and their own resources. experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 338 3.2 perception of the key actors linked to access to justice for pdl this section will analyze opinions given by key actors on the access to justice of the pdl’s regarding topics such as institutional perception, pdl’s rights violations, prison benefits and the main problems of access to justice for the pdl. access to justice is a right that requires joint work of several institutions to be guaranteed. in ecuador, people who work in the rehabilitation system are responsible for carrying out treatment and subsequent society reintegration of inmates, always ensuring pdl’s rights. when any inmate’s rights are violated or when there is a requirement, there is the possibility for making complaints and petitions to authorities. for this, there are the penitentiary guarantees units, which were created in october 2019. the judge of these units is the one who resolves any complaint around rights violation of persons deprived of liberty. in addition, judges process penitentiary benefits of freedom and prefreedom as well as have the duty to make monthly visits to the prisons to verify the respect and validity of rights. in cuenca, the city where the study is carried out, there are two penitentiary guarantees units. on the other hand, inmates have the right to hire a lawyer of their choice. when a person deprived of liberty cannot hire a private lawyer, the public defender services are offered. the public defender's office, by constitutional mandate, is the institution in charge of guaranteeing full and equal access to justice for people who, due to their state of defenselessness or economic, social or cultural condition, cannot hire legal defense services for rights protection. in the case of src turi, there is a public defender permanently assigned to it. when illegal conducts classified as crimes are reported, the office of the prosecutor intervenes. this is appropriate to highlight, given that a person deprived of liberty may be the victim of rights violations that constitute a crime. table 1: main problems found at each stage of access to justice access to justice stages problems found 1. victim willing to activate the judicial system the pdl are unaware of their rights the pdl have low expectations of a solution from the state fear and intimidation among pdl’s fear of retaliation from authorities 2. activation of the judicial system pdl do not know how to report lack of public defenders lack of judges of penitentiary guarantees crs turi corruption problems caused by pdl gangs. 3. due process of law most pdl’s do not reach this stage 4. legal solutions most pdl’s do not reach this stage 5. restitution of rights most pdl’s do not reach this stage source: interviews with pdl at src turi and key legal informants in cuenca (2020) elaboration: the authors andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 339 thus, in this investigation, information has been compiled on the point of view of actors belonging to institutions that have the greatest relevance in access to justice of persons deprived of liberty. regarding the perception of the institutions, the interviewees think the administration of the src turi is very good but currently there is a shortage of personnel and delay in the procedures under their responsibility since bureaucratic processes must be carried out. it is stated that many of the officials seek an effective rehabilitation of the inmates, however, mafias are stronger, and officials are threatened by pdl gangs. it is argued that src turi officials are frequently sacked or changed and this causes procedure delays, src turi officials are often elected by political criteria and do not have expertise and experience. it is also stated that workers from src turi administration “(…) do not realize the human system. they only get to fulfill their work, their activity.” (eap2) it is established that in the src turi a large percentage of pdl do not have disciplinary reports, however, daily problems, riots, violent deaths, entry of prohibited objects, etc. are seen. in relation to the role played by the public defender's office, some interviewees believe that it does an excellent job according to its capabilities, since there is only one defender for about 2,700 pdl that are in src turi. on the other hand, there are those who believe public defenders do not promote the processes as they should. it is stated that public defenders, being part of the structure of the state, receive orders not to defend certain legal actions. in addition, it is reported that "they are warning called by the fact of fighting and defending a lot the legal processes of people deprived of liberty" -because it is considered as"mere formalities" (efcrs7) regarding the penitentiary guarantees unit, the interviewees state that, with the creation of a single unit in the city of cuenca, and later the expansion to two units, the access to justice of the pdl was impaired since these matters were judged by 16 judges in the past. in fact, in 2019, in order to guarantee the rights of prison inmates, specialized units were created. previously, these issues were sent to criminal judges who did not have the expertise to hear these issues. however, the state has placed an insufficient number of judges which has caused a great problem. according to some interviewees, the penitentiary guarantees units have been working respecting rules. it is stated that there is not yet an optimal level of rights protection. a lawyer interviewed indicates that judges are unaware of the internal situation of the prison. in practice, the visit of the penitentiary guarantees judge to the src turi is limited by excessive work the judges have and even by security issues. it is assured that the effectiveness of the judge's visit is due to the fact that inmates are concerned only with personal but not collective requests. about inter-institutional coordination, interviewees from the public defender's office and src turi mention there is good coordination. it is reported that communication with the src turi is such that they have even been allowed to work within the center and regarding the coordination with the judicial complex, collaboration has been given so that legal documents can be presented at a special window. for the penitentiary guarantees unit, emphasis is placed on the deficient coordination between the court itself and the src turi, since files for processing penitentiary benefits arrive 99% incomplete, delaying the procedures. experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 340 violations of rights regarding violations of rights suffered by the pdl, some private lawyers believe health rights are not guaranteed, since the pdl "have to be dying to be given care" (eap2). in addition, it is reported that if a pdl file a complaint will be stigmatized. there are opinions that accuse the mafias as the greatest violators of the rights of the pdl. it is reported that there are occasions when the “caporales” (inmates who command jail areas) do not allow officials and guards to enter “and one meets that person who has already been beaten or who has already been attacked or who has been called to the family to ask for money or things like that and those who do it are the same inmates (...) the same inmates tie them up to other inmates, they even pass electricity on them, they send each other to rape, they send each other to beat and when the official asks what happened nobody says anything because there is fear of retaliations" (efcrs7) prison benefits the interviewees report that the process for obtaining a penitentiary benefit is very delayed and centralized. most people deprived of liberty do not access these benefits when they serve 60 and 80% of the sentence, respectively. in addition, some interviewees are concerned about psychological reports given by the src turi, which is key to accessing a prison benefit, is not carried out with technical and scientific criteria, but prepared based on a single interview. main problems of access to justice for pdl regarding problems pdl face in accessing justice, the interviewees believe that the lack of sufficient penitentiary guarantees units, as well as public defenders are great challenges pdl face in order to activate the justice system. likewise, corruption within the src turi is mentioned as a serious problem. it is ensured pdl do not report many situations because they do not know their rights. the lack of legal literacy of vulnerable socioeconomic strata people is accused as an impediment to accessing justice. it is mentioned that access to the public defender's office is not enough because it is just allowed once a week. same thing happens with access to private lawyers due to limited schedules. it is mentioned that many times the pdl do not report events for fear of reprisals from the inmates themselves and prison officials. there are opinions that assert that there is an abuse of legal actions by the pdl, based on their classification as a priority attention group, which causes resources and time to be wasted by the src. some problems are described such as the continuous change of officials in the src turi, the lack of interest of the state in giving prison benefits, the lack of trained personnel and overcrowding. the interviewees report the existence of very vulnerable profiles in people deprived of liberty. it is said that many people who enter prison are generally low-income. meanwhile, those who do have resources usually do not go to prison because they are andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 341 given an alternative option to prison. broadly speaking, it is commented that "60% of those persons deprived of liberty have very limited resources" (efcrs7) 4. discussion begala and lista (2001) with a modern vision conceptualize access to justice as a pathway. if we compare the data obtained in the study with that conception, it can be seen that very few interviewees who have suffered rights violations have managed to activate the system, stay in it for the necessary time, and then receive a legal solution. the interviewees report that complaints and requests are not heard. birgin & gherardi (2012) establish that some disadvantaged groups face particular difficulties in accessing justice. grunseit, forell & mccarron (2008) date that people deprived of their liberty find it very difficult to access justice because, among other causes, the pdl do not trust the system and consider it a waste of time. the results of this investigation agree with this premise since the interviewed pdl consider that, among other things, there is no justice within the prison and they would not denounce a violation of rights because it would be useless. pdl do not trust the system. some pdl interviewed report on the delay and difficulty in obtaining a prison benefit. it is noted that there are pdl that have already met the time of their sentence and requirements to qualify for pre-release or the semi-open regime, however, their process has stalled and they continue in jail. grunseit, forell & mccarron (2008) found that people deprived of liberty are limited in their right of access to justice, in part due to the so-called “prison culture”. the results agree with what the authors said, since the pdl do not report because they do not want to be considered as whistleblowers, in addition to retrieval from other pdl. it should be noted that the results indicate that the majority of pdl have not received legal literacy, which is a necessary prior step to access to justice. despite this, it is interesting to note that the pdl interviewed in the study do recognize themselves as subjects of rights and demand to change situations they consider unfair; at this point the results do not coincide with authors grunseit, forell & mccarron (2008) whom affirm that many pdl do not report a violation of rights because they think since they are criminals who have violated the law, they deserve the treatment they receive. human rights have taken a transcendental role in citizen’s lives in general with the rise of neo constitutionalism and the increasing endowment of rights, to the point that the expression "i have rights" has become more common and robust. it is not surprising that this phenomenon has occurred with more force in a prison population that seeks to unite as a defense mechanism to their situation of liberty deprivation. on the other hand, it can be seen that common problems in prisons in ecuador and the region, such as the existence of pdl mafias and corruption, are present at src turi limiting access to justice. according to the united nations office on drugs and crime (2014), many people who are detained are poor, have low education or are disadvantaged for any other similar reason. the results show there are many people with some other condition of additional experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 342 vulnerability to deprivation of liberty; many of the interviewees report being from other provinces and countries, being away from their family, having low family income, belonging to minorities such as lgbti groups, having a low level education, being indigenous, mulatto, etc. the national comprehensive care service (servicio nacional de atención integral) (2019) corroborates the existence of these vulnerable minorities. iturralde (2018) affirms that pdl in ecuador, before committing criminal acts, lived in an environment of violence and poverty. as established by coimbra and briones (2019), latin american prisons are an instrument of punishment for marginalized minorities and a protected environment for criminals, as we have seen according to the results of this research in relation to the percentage of people deprived of liberty in a situation of extremely high economic vulnerability. grunseit, forell & mccarron (2008) identify a deficit of resources allocated for access to legal information and assistance from pdl. that is adjusted to the results obtained from the investigation. those who are deprived of liberty state that they do not have adequate access to public defenders, their visits are very sporadic. from different actor’s interviews, a concern is the number of officials who are in charge of access to justice for persons deprived of liberty. it is mentioned a lack of interest from the state towards the treatment and rehabilitation of this group. 5. conclusions this research has revealed, the shortcomings around access to justice for people deprived of liberty in ecuador have their origin in multiple variables. first, the state organization and the prevailing inequitable social structure that criminalizes poverty; also, failures related to management of penitentiary system are found; and finally, the interpersonal relationships between officials-guides and persons deprived of liberty. the centrality of the state in relation to the national social rehabilitation system implies a bottleneck for processing complaints and the requirements of the pdls. there is excessive processing and lack of institutional response where the pdl continue to pay their sentence within the src turi when they have already fulfilled the time and requirements to obtain the semi-open regime or pre-release, which would allow them to continue with rehabilitation outside the prison and granting greater operating capacity for the crs, significantly reducing the levels of overcrowding. at this point, it is essential to emphasize poverty criminalization, which is evidenced by the fact that the majority of pdl are people in situations of poverty or extreme poverty, which undoubtedly reveals an inequitable social structure where the lack of opportunities, lack of resources and exclusion become the formula to swell the numbers of the src. linked to this, it is worth emphasizing that most of the population interviewed had problems when recognizing their rights, which makes it more difficult for them to recognize a violation and then report it. if pdl do not identify the rights of which they are holders in a correct way, they are not in a position to realize when a violation of rights occurs. andrés de jesús ramírez chica; maría antonia machado arévalo the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 343 in relation to the failures related to management of penitentiary system, it is visible that within the src there is no adequate guarantee of rights, free legal advice is limited and difficult to access, social reintegration programs, especially legal literacy, are not reaching all pdl due to lack of officials at src turi and related institutions and agencies such as the penitentiary guarantees unit and the public defender's office. the interpersonal relationships between officials-guides and persons deprived of liberty show that within the src there is a parallel justice exercised by mafias and groups that govern the src marked by extortion and impunity, where the pdl who have suffered some type of violation cannot access their legitimate right for fear of reprisals. these problems, together with cases of corruption within the src, prevent the facts from being brought to the attention of the respective authorities. regarding the personal experiences of persons deprived of their liberty in access to justice, it can be concluded that the majority have not received legal literacy, in addition, pdl find few problems in accessing justice that are summarized in the following categories: the pdl think that their problems and complaints will not be solved or listened to out of fear or fear of other inmates for fear of reprisals from the authorities because it is a delayed process and they need money to carry it out successfully. for not knowing how to report or send a petition. in addition, the study suggests that the inequity of access to justice is caused because of inefficiencies and structural problems in the country's judicial system. given that access to justice generally depends on relatives or friends of those deprived of liberty who manage their judicial processes, the prisoner has limited or no management capacity due to the context of confinement; therefore, those prisoners whose family members have better management will be more likely to access justice than those who lack this support. unfortunately, most of pdl that were interviewed had their last place of residence at other provinces far away from “turi” pdl are often far away from their home, family and friends. this panorama in relation to access to justice for pdl puts on the table some points of analysis to identify why there is such a deep crisis at the level of the ecuadorian penitentiary system. it also shows the importance of gradually deconstructing the paradigm of social rehabilitation, its functioning, the budget allocation given, the forms of relationship within the src and the demand of the pdl for a dignified treatment that has been expressed for decades and due to the structural failures of the state's attention, it becomes more and more violent and unmanageable. finally, it is important to highlight the importance of researching the different problems of the pdl by listening to their opinions, in order to understand the internal dynamics of this population and seek structural solutions to the prison regime. it is suggested for future studies to contrast different realities from other rehabilitation centers both in ecuador and in other latitudes that are part of the region to determine provisions and guidelines from international organizations that allow strengthening human rights and access to justice for this population. experiences of access to justice for persons deprived of liberty in ecuador the age of human rights journal, 17 (december 2021) pp. 328-345 issn: 2340-9592 doi: 10.17561/tahrj.v17.6457 344 bibliography aguilar, g. 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(2014). early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners. new york: english, publishing and library section, united nations office at vienna. vera, mónica, 2019. crisis del sistema penitenciario en el ecuador: más allá de una declaración de estado de excepción. inredh foundation. received: july 1st 2021 accepted: september 22rd 2021 https://doi.org/10.17163/alt.v13n1.2018.06 https://www.cdh.org.ec/informes/398-resumen-del-informe-del-cdh-sobre-crisis-carcelaria-en-ecuador.html https://www.cdh.org.ec/informes/398-resumen-del-informe-del-cdh-sobre-crisis-carcelaria-en-ecuador.html https://www.atencionintegral.gob.ec/wp-content/uploads/2019/12/proyecto-transformaci%c3%93n-sistema-rehabilitaci%c3%93n-social_vf_15nov2019.pdf https://www.atencionintegral.gob.ec/wp-content/uploads/2019/12/proyecto-transformaci%c3%93n-sistema-rehabilitaci%c3%93n-social_vf_15nov2019.pdf https://www.atencionintegral.gob.ec/wp-content/uploads/2019/12/proyecto-transformaci%c3%93n-sistema-rehabilitaci%c3%93n-social_vf_15nov2019.pdf https://www.atencionintegral.gob.ec/wp-content/uploads/2020/08/reglamento-del-sistema-de-rehabilitacio%cc%81n-social-snai-2020_compressed.pdf https://www.atencionintegral.gob.ec/wp-content/uploads/2020/08/reglamento-del-sistema-de-rehabilitacio%cc%81n-social-snai-2020_compressed.pdf experiences of access to justice for persons deprived of liberty in ecuador abstract 1. introduction 1.1 human rights of the pdl 1.2 access to justice 2. materials and methods 2.1 preparation of the interview 2.2 population interviewed 2.3 collection and processing of information 3. results 3.1 main problems that people deprived of liberty present in the path of access to justice human rights knowledge the pdl's knowledge of filing complaints knowledge of prison benefits violation of rights willingness of the pdl to file a complaint or petition pdl’s opinions on some key actors in access to justice 3.2 perception of the key actors linked to access to justice for pdl violations of rights prison benefits main problems of access to justice for pdl 4. discussion 5. conclusions bibliography trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 59 trans justice fights trans moral panic* ruth m. mestre i mestre** abstract: between the summer of 2019 and the summer of 2021, a violent discussion about trans rights took place in spain. this paper argues that the discussion can be understood as an instance of ‘social problems work’, more specifically as part of a moral crusade or a moral panic episode. implicit in this is the idea that there has been an over-reaction to trans recognition and trans equality laws, publicly presented as a major social problem. this paper also provides legal arguments against the fears voiced in the discussion, by summarizing relevant echr case-law that agrees with an alternative feminist account of trans rights that de-pathologizes gender-identity self-determination. the paper thus suggests that a ‘cultural war’ over gender identity has been ignited and has yet to be fully fought and won. keywords: moral crusades, trans equality, gender-identity self-recognition, moral panics, cultural wars. summary: 1. introduction. 2. moral crusades, moral panics and cultural wars. 3. transexclusive documents. 3.1. the argumentative. 3.2. the open letter to the president. 4. brief diagnosis. 4.1. the elements of a crusade. 4.2. unveiling power. 5. a cultural war?. 5.1. an alternative feminist account. 5.2. european court of human rights case-law. 6. conclusion. 1. introduction in june 2020, a 4-pages-long internal argumentative of the spanish socialist party (psoe)1 became public. “arguments against the theories that deny women’s reality” alerted about the dangers and evils of trans activists and trans equality laws. 2 it summarized the arguments exposed in a 2019 summer school by some prominent feminist academics, where the very existence of transgender persons was put into question and aggressively and painfully ridiculed.3 * article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. ** ruth m. mestre i mestre, associate professor of philosophy of law, faculty of law, member of the institut universitari d’estudis de les dones, universitat de valència. email: ruth.mestre@uv.es 1 psoe: spanish socialist party. 2 psoe. comunicado nº 699 de 9 de junio de 2020. argumentos contra las teorías que niegan la realidad de las mujeres. (psoe, internal communication nº 699, from june, 9th 2020. arguments against theories denying women’s reality). i refer to this document as the argumentative.accessed on december 3rd 2021 at: http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20 mujeres%20(1).pdf. [accessed: february 2022]. 3 the videos of the xvi escuela rosario acuña, gijón, held in july 2019 can be found at: https://www. youtube.com/watch?v=unaa2e0bmwc. [accessed: february 2022]. http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20mujeres%20(1).pdf http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20mujeres%20(1).pdf https://www.youtube.com/watch?v=unaa2e0bmwc https://www.youtube.com/watch?v=unaa2e0bmwc trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 60 at that time, the coalition government psoe-unidas podemos (up)4 was drafting a law modifying the requirements and procedures for legal recognition of gender identity that embraced a de-pathologizing and self-determination approach. in february 2021, some days after a draft of the law had become public, several newspapers published an open letter to the president, 5 signed by 8 well-known women, publicly alerting about controversial aspects of the draft that allegedly implied a regression in the protection of women and women’s rights. in july 2022, psoe members promoting such discourses were removed from government positions, which in part contributed to decrease hostility towards lgbtiq+ people in general, and trans people in particular, smoothing the ambience for parliamentary discussion of the law. yet the contestation process washed away some of the most advanced provisions of the law.6 since its emergence, the concept of ‘moral panic’ (cohen, 1972) has had great impact and has somehow become familiar in debates about social problems (garland, 2008). according to loseke (2003), for a society to notice and categorize certain situations as social problems, ‘social problems work’ needs to be done. loseke convincingly argues that social problems are created around conditions that people believe are troublesome, and that can and should be changed. because social problems do not exist until they are defined and widely accepted as such, meaning needs to be given to ‘objective’ facts and conditions. different actors conduct this ‘social problems work’ that provides an interpretation of reality: activists, politicians, researchers, academics, the mass media, influencers… through actions and discourses they can transform situations into explicit problems. by calling attention to certain situations and defining certain conditions as a ‘social problem’, they make the public aware of the need for intervention, reaction, or change. moral crusades occur when specific social groups or interest groups (moral entrepreneurs; crusaders) engage in a public awareness campaign that transforms a social condition into a “social problem” or a threat, by advancing claims about the seriousness of a particular ‘moral’ problem (weitzer, 2007: 448). in the field of law, these dynamics have been analyzed both at national and international levels, as ‘moral entrepreneurs’ and rule makers have launched moral campaigns to ensure the enactment of laws protecting certain interests, achieving in some cases global prohibition regimes (see for instance nadelman, 1990). 4 unidas podemos is an electoral coalition of the left parties podemos and izquierda unida (united left, itself the sum of smaller political parties). podemos originated in the 15 m 2011 protests. see kerman, c. y alvarez, i. (2015).psoe and up signed a coalition agreement of government in december 2019. 5 see for instance https://www.levante-emv.com/comunitat-valenciana/2021/02/09/carta-abierta-feministasley-trans-34321497.html. [accessed: february 2022].the newspaper says that 6.743 people had signed the letter at the time of publication. 6 for instance, registered sex modification does not require a medical certificate, nor does it require external validation (as proposed), but does require a ratification from the claimant in the following months. although this was accepted by trans activists, they regret the implicit mistrust towards trans people in asking them to declare twice who they are. https://www.levante-emv.com/comunitat-valenciana/2021/02/09/carta-abierta-feministas-ley-trans-34321497.html https://www.levante-emv.com/comunitat-valenciana/2021/02/09/carta-abierta-feministas-ley-trans-34321497.html ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 61 the aim of this paper is twofold. on the one hand, by examining the arguments and reasons provided in the argumentative and the open letter, it explores whether the described facts could be understood as ‘social problems work’, and more explicitly, whether they could be understood as a moral crusade developing into a moral panic episode going from july 2019 to july 2022. implicit in that approach is the idea that both documents overreact and wrongly present trans recognition and trans equality as a major social and moral problem to fight. the second aim of this paper is to provide legal arguments against the fear expressed in both documents, by summarizing relevant case-law that is in accordance with an alternative feminist account of trans rights: a de-pathologizing legal approach to genderidentity self-determination. by doing so, it suggests that a cultural war between transactivists and trans-exclusionary-activists ignited; a war still being fought in spain -and probably elsewhere. 2. moral crusades, moral panics and cultural wars legal changes and the enactment of new laws have often resulted from previous social mobilizations demanding remedy for a certain injustice, or that a certain social problem be addressed. in fact, the vindication of rights is at the core of our legal and political tradition.7 the emancipatory use of the law; the idea that law can be a tool for social engineering (pound 1958); that it can aim at creating fair conditions for a fair society. these are all familiar ideas. consequently, discussions about what are the possibilities for law to transform society, and under which conditions such intention may have a chance to succeed, have had a prominent place in the field of sociology of law for decades (see, for instance moore, 1973). from a political perspective, n. fraser proposed a procedure for vindicating rights and collectively evaluating and deciding upon such claims as a way of enhancing democratic justice (fraser, 2006). the analyses of moral crusades, moral panics and cultural wars are framed in this broader debate about the relations between law and society, social change, and social mobilizing through law, but they represent a specific type of action and reaction.8 although organising, mobilising, claiming, and launching public campaigns to gain recognition of rights represents a normal democratic dynamic of pluralistic societies, certain types of public discourse and narratives have been qualified as moral crusades. of course, not all public debates are moral crusades, create moral panic episodes, or constitute cultural wars, 7 the first work that comes to mind is wollstonecraft’s vindication of the rights of women (1791). amorós (2000: 57) argues that the genre vindication requires that a potentially universal platform of equality is established (this is, criteria by which to declare that the relation of equality between two elements is pertinent) but restrictively applied or enforced. this gap allows those de facto excluded to vindicate equality either by affirming that they do share the criteria and thus their exclusion is unfair, or by challenging the criteria themselves for being biased or unfair. see also young (1989). 8 the debate about the legal enforcement of morality, although connected to moral panics and moral crusades will not be dealt with in this paper. trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 62 but some do and have an important impact in the living conditions, wellbeing, recognition, and rights of those signaled as being responsible for the worrisome situation. moral crusades occur when specific social groups or interest groups engage in public awareness campaigns with the aim of transforming a given social condition into a threat. to do so, they advance claims about the seriousness of a particular problem, qualified as ‘moral’ (weitzer, 2007: 448). moral crusades pretend to redistribute social status amongst groups by declaring “one form of life superior to its rivals” (garland, 2008: 17). when the debate is amongst social groups with equal status, the expression “cultural wars” is preferred. the term shifts the focus away from the fanaticism (uncritical zeal) present in a crusade, precisely to show a power balance amongst rivals. thus, although moral crusades and cultural wars are crossed with power dynamics and relations, crusades tend to affect groups lacking power, with low status, receiving little respect or affected by multiple and intersecting forms of discrimination. in that sense, moral crusades reinforce existing social hierarchies and are launched by social groups that want to retain their status. weitzer has analysed how the issue of sex trafficking and prostitution has become increasingly politicized in the u.s.a. due to a moral crusade led by an alliance of the religious right, neo-abolitionist feminists and governmental agencies. this moral crusade has been successfully institutionalized and globalized. it can hardly be said to have originated spontaneously by a shared fear about prostitution, or by a shared concern about sex workers’ life and working conditions, or about migrant women’s opportunities of a fair share. drawing from this example, weitzer (2007: 467) lists seven elements as hallmarks for moral crusades: z the framing and presentation of a social condition, situation, or behaviour as an evident and absolute evil, danger, or risk; z the enthusiastic assumption of moral crusaders/ moral entrepreneurs or leaders of their mission to rescue society from that evil; z the expression of claims as universal truths; z the presentation of selected horror stories to illustrate the problem as if they were representative of the problem itself. a part (worse stories) is said to be the whole, and the tale is expressed in a very emotional language; z the disclosure of huge numbers of victims and problems without real evidence; z the attempt to modify normative boundaries by increasing or reinforcing criminalization. of course, launching a moral campaign does not necessarily result in a moral panic situation, but under certain circumstances that may be the case (garland, 2008; goode and ben-yehuda, 1994). a moral panic is a form of ‘inappropriate' reaction to a ‘social problem’, that is, a situation where the ‘social problem work’ results in disproportionate social fear targeting the condition or social group defined as a threat to societal values and interests. to distinguish moral panics from other related phenomena, e. goode and ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 63 n. ben-yehuda (1994: 156-159) propose five elements or criteria that need to be met in order to consider that a moral panic has taken hold on society. these are concern, hostility, consensus, disproportionality, and volatility. episodes of moral panic involve concern over the behaviour or supposed behaviour of a group of people (folk devils)9 and the consequences such behaviour causes to the rest of the society. this concern is expressed as in a moral crusade. according to garland (2008) two salient aspects of moral panics are the moral dimension of the social reaction and the idea that the deviant behaviour is symptomatic of something. on the one hand, there’s something normative about moral panics -the condition or folk devil is perceived as a threat or a challenge to a shared morality, to the morality of specific ways of life. as devlin would put it, a threat to the shared public morality that glues society. the practice threatens injury to society itself because it is an attack on its moral structure (devlin, 1959). on the other hand, consequently, the episodes connect a particular concern to a wider source of anxiety: the condition or behaviour is a symptom of a greater problem; something deeper and more dangerous than what is simply perceived. what seems irrelevant is in fact a deep attack on the moral structure of society. during the episode, hostility toward the group of people seen as evil increases. folk devils are presented and represented as dangerous enemies or deviant people that threaten shared values, social structures and/or a way of life. folk devils are perceived and marked as responsible for the risk looming over law-abiding citizens (and respectful societies). although the sentiment of fear does not need to be widespread, moral panic situations imply that there is some sort of consensus in certain segments of society about the seriousness of the threat. as e. goode and n. ben-yehuda point out (1994: 158), in the use of the term ‘moral panic’ there is “the implicit assumption … that the concern is out of proportion to the nature of the threat”. moreover, implicit in the labelling of an episode as ‘moral panic’ is the fact that the label it put by an outsider, this is, by someone who does not share the analysis about the social problem, nor the concern over the threat; or by someone who denies the existence of a threat. thus, an outsider may see the reaction as disproportionate, whilst those participating, suffering, or contributing to the panic truly believe that the threat exists. finally, we refer to moral panics as episodes because they are volatile. the impact of an episode may be long or short, and the consequences be big or small, but the hostility, fear and concern experienced tends to be concentrated in a short period of time. different as they may be in length, frequency, impact and intensity, moral panics do “make things happen. they create effects and leave a legacy” (garland 2008). when compared to moral crusades, moral panic episodes are intense moral crusades, concentrated in a period in which hostility towards the target group or situation increases, and has social and legal consequences that go beyond the episode itself. 9 this term was coined by s. cohen in his 1972 book folk devils and moral panics: the creation of the mods and rockers (routledge). trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 64 3. transexclusive documents the existing spanish 2007 law regulating the modification of civil registers regarding sex was promoted by the psoe when in government.10 although very progressive at the time, the law is nowadays contested because it requires a dysphoria diagnosis and hormonal treatment for the full recognition and legal modification of registered sex. it also ignores the situation of trans children and youth and excludes migrants. thus, its modification towards a de-pathologizing regulation based on selfdetermination of gender identity was included in the coalition agreement between psoe and up, in which the equality portfolio was assigned to up as of january 2020. with a similar approach to a 2017 psoe draft,11 the equality ministry issued a draft in february 2020, proposing the elimination of a medical certificate or diagnosis (de-pathologizing) and the recognition of the sexual identity as expressed by the person without further external evidence (self-determination). it included provisions for children and youngsters as well as for non-citizens. although it ignored the demands of non-binary people, it received the support of lgbtiq+ associations. prior to the publishing of the draft, the disagreement about this issue between the two parties in government was frequently in the news. for months, the arguments expressed in the psoe argumentative were broadly exposed and widely spread by media. similarly, when the draft was made public, the open letter was published in the national press. the two documents complement each other, share content, language, and tone. moreover, both documents have amplified and spread the contents of the website “alianza contra el borrado de las mujeres” (alliance against the erasure of women), which reunites a variety of trans-exclusionary organizations and individual activists that 10 ley 3/2007 de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo. (law 3/2007 of march 15th, regulating modification of sex registration). 11 on march 2017 the psoe registered in congress a proposal to modify the law 3/2007. the proposal explicitly said in the introductory remarks that the aim of this new law was to eliminate the requirements of medical certificates or body interventions to legally change one’s sex and name in the public civil register. boletín oficial de la cortes generales. congreso de los diputados. serie b. proposiciones de ley, 3 de marzo de 2017, núm. 91-1, proposición de ley 122/000072 proposición de ley para la reforma de la ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo de las personas, para permitir la rectificación registral de la mención relativa al sexo y nombre de los menores transexuales y/o trans, para modificar exigencias establecidas en el artículo 4 respecto al registro del cambio de sexo, y para posibilitar medidas para mejorar la integración de las personas extranjeras residentes en españa. presentada por el grupo parlamentario socialista. (oficial bulletin parliament, act proposition march 3rd, 2017, num. 91-1 to amend law 3/2007, of march 15th, regulating modification of public registered sex, to allow modifications regarding sex and name of trans minors, modifying article 4 requirements regarding registered sex modification and to adopt measures facilitating the integration of migrants residing in spain. presented by the socialist parliamentary group). ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 65 identify themselves as ‘feminists’.12 the alliance organized public demonstrations uniting neo-abolitionist claims13 with trans-exclusionary demands, and published a manifesto.14 thus, the ambience surrounding the documents we are about to summarize and discuss was a transphobic one, in which messages alerting about the dangers of trans equality laws occupied a lot of public space, energy and time. this environment magnified the discourse and its social impact, especially because one of the most heard voices against trans equality laws was the vice-president of government, carmen calvo. 3.1. the argumentative in june 2020 an argumentative claiming to summarize the position of the psoe was internally distributed, promoted by party members holding high governmental and party positions.15 by becoming public it created both concern and alarm. not only does its content differ from what the psoe had approved in its internal political congresses; it also contradicts the modifications the party had been proposing until then. the document displays the arguments grouped around four main ideas:16 12 la ‘alianza contra el borrado de las mujeres’ defends the ‘rights of women on the grounds of sex’ and fights ‘against the discrimination resulting from substituting sex by gender’. the website is: https:// contraelborradodelasmujeres.org/. [accessed: february 2022].although it has a complex website with glossary terms and faq, the content does not add arguments to those expressed in the argumentative and the open letter. this paper addresses mainly the two mentioned documents because of their public relevance and impact but has used the manifesto and the website for clarificatory purposes. 13 for a discussion on neo-abolitionism see vanwesenbeeck, i (2017). 14 there were several demonstrations in madrid, for instance, on june 26th 2021: https://www.elmundo. es/espana/2021/06/26/60d70e95e4d4d8a8168b45cb.html. [accessed: february 2022].the october 23rd, 2021 demonstration is different, because a manifesto was made public and open to signature: https://www. catalunyapress.es/texto-diario/mostrar/3219234/manifestacion-23-octubre-exige-proteja-todas-mujeres. [accessed: february 2022].the manifesto says that: “we are at a crucial historical moment due to the new attacks with which our government and specifically, the ministry of equality, plan to override our rights. even today, the impunity of sexist violence, the commodification, exploitation an objectification of women, the id laws, the interference of religions in our lives, the feminization of poverty and the care system, and the erasure of women, remain the expression of our oppression. they oppress us for being born women. (…) we decide our country has the duty to listen to our critical feminist arguments and stop and eliminate all legislation that protects gender as an identity, erasing women as political subjects. we decide also that no one should legislate on subjective self-identification: doing so makes public policies for effective equality between women and men irrelevant.we demand individual wishes or feelings do not prevail over women's rights.”the manifesto can be read in english here: https://docs.google.com/forms/d/e/1faipqlse8hnoa26zr0phwn3rqdgx2aywvip-mtqjge_b53ezuj2gia/viewform. [accessed: february 2022]. 15 psoe, internal communication nº 699, from june 9th, 2020 (n 2). the document was signed by j.l. ábalos (psoe -party organization secretary), carmen calvo (psoe-party equality secretary), santos cerdán (psoeparty territorial coordination secretary) and alfonso rodríguez. at that time calvo was first vice-president and minister of the presidency; whilst ábalos held the ministry of public works and transport. 16 this paper offers a translated summary of the documents, rather than an ‘interpretation’. in translating and summarizing them, an effort has been made to remain truthful to the language and terms used. unfortunately, it has sometimes become a challenge to make sense, and sometimes the sentences are hard to understand. https://contraelborradodelasmujeres.org https://contraelborradodelasmujeres.org https://www.elmundo.es/espana/2021/06/26/60d70e95e4d4d8a8168b45cb.html https://www.elmundo.es/espana/2021/06/26/60d70e95e4d4d8a8168b45cb.html https://www.catalunyapress.es/texto-diario/mostrar/3219234/manifestacion-23-octubre-exige-proteja-todas-mujeres https://www.catalunyapress.es/texto-diario/mostrar/3219234/manifestacion-23-octubre-exige-proteja-todas-mujeres https://docs.google.com/forms/d/e/1faipqlse8hnoa2-6zr0phwn3rqdgx2aywvip-mtqjge_b53ezuj2gia/viewform https://docs.google.com/forms/d/e/1faipqlse8hnoa2-6zr0phwn3rqdgx2aywvip-mtqjge_b53ezuj2gia/viewform trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 66 “sex is a biological fact whereas gender is a social construction. sex is a biological fact that refers to the physical characteristics differentiating men from women. gender is the social construction of the biological birth sex. it comprises roles, expectations, tasks, and stereotypes assigned to men and women. gender establishes the sexual division of labour, the public/ private divide, and the prevalence of the masculine over the feminine in all aspects of life. the analytical category gender is used by certain social movements as a substitute for sex. yet, denying biological sex as a socially meaningful category eliminates the capacity to identifying and fighting the social inequality drawing from it. women are killed because of their biological birth-sex (they are biologically born women); and are assigned care work because they are biologically born women. because gender is what society adds to biologically sexed bodies, socialists want gender to disappear. the terms ‘sexual identity’ and ‘gender identity’ are being manipulated. sexual identity is a solid concept to refer to how one person feels about her own body, and whether it is in accordance or not with her biological birth-sex. the situation where there is discordance is called transsexuality. gender identity, a recent term, occurs irrespective of biological sex and does not express disconformity. one can feel to be a woman in a man’s body and vice versa. although the terms express different ideas, they are being used as interchangeable in many legal and international documents. they are also being used manipulatively by queer activism. the consequences of such manipulative use constitute a risk for the legal and political subject “women”. distinguishing both terms is necessary to guarantee equality and nondiscrimination. the question is not how a person feels about her body, but rather how can the legal system incorporate a feeling or expression that is not constant through time. trans rights must be framed within the limits of legal certainty. thus, contrary to the belief of those defending the idea that feelings, desires, selfexpressions, or self-determination can achieve full legal recognition, the right to self-determination of sexual identity is non-existent and lacks legal rationality. modifying one’s sexual identity requires a continuous situation of transsexuality duly certified. theories that modify the definition of women and deny their reality are dangerous. recognizing that anyone at will is/ can be a woman, thus making biological sex irrelevant, modifies the definition of women or what women are. the possibility of sex being mutable at will would have a devastating impact in political representation, quotas, policies regarding gender-based violence ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 67 against women or any other public policy grounded in sexual difference (shelters, prisons), as well as in sports and competitions. for instance, data collection disaggregated by sex to promote affirmative action policies will become futile. thus, other questions arise: how would this affect to the enforcement of measures against gender-based violence? could a man that is accused of gender-based violence declare to be a woman and escape justice? women are not an identity, nor an essence. women are not a group. women are over half humankind. feminism is a political project to achieve equality of rights and citizenship for women because birth-sex (being born a woman) determines an unequal place in society, inequality of rights and misrecognition. the political subjects of feminism are biological women. queer activism dilutes the political subject ‘women’ and jeopardizes women’s rights, public policies that aim at increasing equality between men and women and the accomplishments of the feminist movement. socialists will defend these ideas in the parliamentary discussions regarding trans equality laws.” 3.2. the open letter to the president in february 2021, eight well-known women made public an open letter to the president after reading the trans rights draft,17 pointing to six troubling aspects of the norm. “by referring to trans children, the law endangers children and encourages them to assume a trans identity. the alleged existence of a trans infancy pressures them to receive treatment with hormones, which have long lasting effects and can impact their lives forever. the consequences of these manipulative discourses are being challenged in courts, in countries like the united kingdom, by youngsters that were subjected to such treatments (keira bell case). because catalonia has actively engaged in trans-encouraging policies, an increment of over 2.200% cases has occurred, being 70% of the cases girls wanting to transition to boys. medicalizing de-pathologization. certifying something is different from pathologizing. the law affirms to be de-pathologizing, but it medicalises people throughout their lives. the law presents as a choice what is a painful 17 the signatories are public known women with very long careers, high social standing, and recognition. some are active members of the socialist party (a. alvarez, j. serna), while others are part of clásicas y modernas, an association for gender equality in culture (m. gilabert, l. freixas, rm rodriguez magda), and the rest are well-known academic philosophers (a. miyares, a. valcarcel, v. sendón). trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 68 process that requires psychological support, a support that must include the possibility of non-transitioning. the law dilutes gender-based violence. the law refers to intra-gender violence and contradicts the fight against gender-based violence against women. this minimizes the objectives of the law because it resonates with the term domestic violence or family violence that extreme-right parties defend. gender identity substitutes sex. gender is the cultural construction of sexual stereotypes. by using the term ‘gender identity’, the law is reinforcing the sexist hierarchy implicit in the stereotypes. the term ‘gender identity’ erases the category of sex, making inequality on the grounds of sex irrelevant. the rest of the policies aiming to redress the power imbalance between the two sexes also become irrelevant. gender identity is defined in the law as ‘the internally lived experience of the individual’s gender that can be different from the one corresponding to the sex assigned at birth’. yet, internally lived experiences don’t have legal consequences or effects. laws are not grounded on feelings, convictions, or desires because that would entail discrimination per se. a new fictional legal subject is created, trans people, that encroaches on lgbti people’s voice. lesbians, gay men, transexuals, crossdressers, bisexuals or intersexual people will hardly find a measure regarding their problems in this law.18 it is unconstitutional, the ambiguity of the language creates legal uncertainty and confusion because it uses gender (the cultural forms and behaviours that relate to sex) to refer to sex (the category that biologically divides people into women and men). this law is a backward movement in the protection of women’s rights, and questions in general very relevant aspects of our legal system.” although similar in the thesis held, the documents are complementary, and both understand gender self-determination as a threat to women’s rights. yet, whilst for the argumentative the main imperilled population is ‘women’, the open letter adds children and lgbti people as threatened groups due to the manipulative effects of replacing sex with gender. 18 the equality portfolio wanted to present two separate laws: a lgbtiq+ equality law and a depathologizing trans law for the modification of registered sex. ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 69 4. brief diagnosis 4.1. the elements of a crusade a superficial analysis of the texts could illustrate the moral crusade elements discussed: framing the issue as a threat; presenting arguments as universal truths; relying on horror stories and exaggerated figures without clear evidence, or intending to have an impact on laws and other normative systems. the social group targeted as a threat to society is composed by those affirming that gender identity is an individual choice that should be socially respected and legally sanctioned. trans-persons, queer activists, trans-feminists, and other allies (academics, politicians, lgbti families…) are accused of making a manipulative use of sex and gender, in ways that render sex and sexual difference irrelevant. both documents affirm that far from being “innocent”, the shift from sex to gender threatens the fight against women’s inequality, and against gender-based violence against women. according to them, the political subject ‘women’ disappears. presented as a truism, both documents hold that humans are born either men or women, and society ascribes meaning to such pre-existing differences. thus, it is sex rather than gender what provides an identity and a place in society, and sexual difference is a useful category for analysing power relations. this approach to sexual difference is a form of determinism that represents one of the edges of what nicholson (1994: 82) calls biological foundationalism, or the belief that at some basic level, distinctions of nature ground sex identity and explain social distinctions. thus, this interpretation is at odds with feminist theory: affirming that it is sex that places women in a subaltern position contradicts decades of feminist challenges to the assumption that biology is destiny. regarding sexual identity and gender identity, the documents hold that transsexuality expresses a process of discomfort, and that such disconformity requires professional support. when medically certified and consistently manifested through time, the process may result in the modification of one’s body and sexual identity. thus, both documents assert that registered sex modification requires both a diagnosis and a body modification treatment to bridge the gap between felt sex and biological sex. in other words, spanish trans-exclusionary activists are willing to accept the new identity of trans people having undergone a process of sex reassignment (transsexuals), but will not recognise trans people that have not undergone such a process (trangenders) the right to say who they are.19 19 according to ilga, trans is an inclusive umbrella term referring to those people whose gender identity and/or a gender expression differs from the sex they were assigned at birth. the term trans includes but is not limited to men and women with transsexual pasts, and people who identify as transsexual, transgender, transvestite/cross-dressing, androgyne, polygender, genderqueer, agender, gender variant or with any other gender identity and/or expression which is not standard male or female and express their gender through their choice of clothes, presentation, or body modifications, including undergoing multiple surgical procedures. see https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/trans. [accessed: february 2022]. https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/trans trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 70 further, both documents alert to the danger of minimizing reassignment procedures. the documents deny that the term ‘gender identity’, as opposed to sexual identity, may express disconformity with one’s body and assess that the term gender identity does not provide “objective” elements to distinguish men from women. the relevance of the subjective element of gender self-determination together with the lack of external or ‘objective’ criteria to distinguish men from women poses a threat to women’s legal status. in other words, the fact that any man could affirm to be a woman without an external diagnosis, without modifying his body to meet female requirements, and without constancy through time (external ‘objective’ criteria), not only threatens women’s identity (what women are), but also women’s legal status (how women are conceived and treated by law). thus, reassignment procedures are key for legal recognition. otherwise, recognition would escape the limits of legal certainty and rationality -because it would not correspond with nature/biology, or with other people’s expectations, nor is it required to be constant through time. the horror stories and exaggerated figures concern children. whether the figures about catalonia are inflated or not is hard to tell because no evidence is given, nor reference of the source. yet, the alleged risks posed to children by trans equality laws are displayed in the open letter and the alliance website, the keira bell’s case (uk) being the paradigmatic case. keira bell was prescribed puberty blockers at the age of 16 to initiate her transition from female to male after being diagnosed with gender dysphoria. at age 23 she claimed in a uk court that the national health service (nhs) should have challenged her on her decision to transition and should have protected her from making such a choice at that age. the high court ruled in december 2020 that children under 16 were unlikely to be able to give informed consent to receive puberty-blocking drugs, thus revisioning public procedures and requiring judicial authorization in such cases.20 lastly, the aim of the argumentative and the open letter regarding legal reform is clear as both documents openly advocate against amending the 2007 existing law, and for maintaining the requisites of dysphoria diagnosis, a minimum of two-year hormonal treatment and majority of age for modifying one’s registered sex, thus mutilating the move towards de-pathologizing and self-determination, and further procrastinating the discussion about non-binary gender recognition. 20 keira bell was diagnosed with dysphoria, was supported and her changes were constant through time. the argumentative and the open letter would consider her a transsexual person, not a transgender person (which is the threat). thus, the problem in this case is being under 16. the uk court said that medical professionals accompanying trans teenagers should gather not only the individual’s consent, and maybe the family’s consent but also a judicial authorization to prescribe a treatment with lasting effects, such as puberty blockers and cross-sex hormone treatment. available at: https://www.theguardian.com/world/2020/ dec/01/children-who-want-puberty-blockers-must-understand-effects-high-court-rules. [accessed: february 2022].in spain, the constitutional court ruled in 2019 that restricting the possibility of registry sex modification to adults (majority of age) was unconstitutional. constitutional court decision 99/2019, plenary, july 19th 2019. https://www.theguardian.com/world/2020/dec/01/children-who-want-puberty-blockers-must-understand-effects-high-court-rules https://www.theguardian.com/world/2020/dec/01/children-who-want-puberty-blockers-must-understand-effects-high-court-rules ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 71 4.2. unveiling power according to garland (2008: 21), a full analysis/ diagnosis would also require operating at the level of symbolic meaning (why this folk devil? why this fear?), at the level of social relations (why these crusaders?) and at the level of the historic temporality (why at this moment?) such an analysis can help understanding what is perceived to be at stake, the status at risk, and the power structures that crusaders want to maintain. although a full analysis is unfortunately beyond the scope of this piece, there are some elements worth mentioning. the temporary lapse. the moral crusade/discourse appeared with force as the intention to modify the legal requirements for registered sex was manifested, and it increased when the draft of the law became public. part of the problem was that the parties in government (psoe and up) symbolically competed to represent and embody feminist interests, and to determine the spanish feminist agenda. challenging the government coalition agreement that gave up the equality portfolio, some psoe feminists openly opposed the ministry of equality’s agenda and found in trans equality laws a productive field of confrontation. however, paying attention to the broader context provides relevant information as well. the documents and discussions appear in a moment in which trans-exclusive narratives have increased in european public opinion,21 and elsewhere, whether expressed by terf22 or by anti-gender movements (either extreme-right or religious based). in fact, because transnational movements opposing gender equality are increasing and gaining ground, different international agencies have issued reports, declarations, and position papers to counter the attacks to gender equality policies in the broad sense. 23 21 fra’s surveys have showed high levels of discrimination and harassment towards lgbti+ persons across the eu. the 2021 fra fundamental rights report points to the fact that social acceptance decreases as hate speech increases in public discourse, further inciting discrimination. fra calls eu member states to consider the available evidence on discrimination, and to take measures to combat hate speech and hate crime, and to address the harmful impacts of homophobic and transphobic statements made by public authorities and officials (fra 2021). 22 https://en.wikipedia.org/wiki/terf: “terf is an acronym for trans-exclusionary radical feminist. first recorded in 2008, the term originally applied to the minority of feminists espousing sentiments that other feminists considered transphobic, such as the rejection of the assertion that trans women are women, the exclusion of trans women from women's spaces, and opposition to transgender rights legislation. the meaning has since expanded to refer more broadly to people with trans-exclusionary views who may not be involved with radical feminism. those referred to with the word terf typically reject the term or consider it a slur; some identify themselves as gender critical. critics of the word terf say that it has been used in an overly broad fashion and in an insulting manner, alongside violent rhetoric. in academic discourse, there is no consensus on whether or not terf constitutes a slur.” 23 see, for instance, united nations human rights office of the high commissioner position paper 2020 and the committee on equality and non-discriminationparliamentary assembly, council of europe, combating rising hate against lgbti people in europe, 2021 report. the anti-gender movement that refers to feminism, queer and other feminist theories as ‘gender ideology’ and is similar in many aspects to terf ideology, for instance when it refers to queer theory as genderism. see cornejo-valle, m. & pichardo 2017. https://en.wikipedia.org/wiki/terf trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 72 the status at risk. in spain the most visible crusaders are female politicians, academics and ‘intellectuals’, that is, women holding power and other privileges in terms of gender, class, race, education, to name but a few. crusaders are well placed in the complex social board of status as they represent a generation that has fought for women’s equality, has initiated feminist theory and feminist politics during the transition from the dictatorship to actual democracy. drawing on this position of power, they have publicly spread and voiced a trans-exclusionary discourse, mobilising fear, reluctance, and doubts. they represent not only a generation but a feminist tradition, mainstreamed and institutionalized, whose ideas, status and accomplishments are being challenged by a different generation -and a different feminist wave. this internal feminist debate is not limited to spain. rather, it is generalized in western societies where feminists “for the 1%” are being confronted by the other 99% (arruzza, bhattacharya and fraser, 2019). mainstream liberal feminism holding institutional positions (institutional feminism) has framed gender politics with a twofold focus. on the one hand, emphasis has been put on equal opportunities and affirmative action policies, whether for accessing the masculine labor market or representative political spaces, improving the situation and opportunities of many white middle-class, educated women. regrettably, such an emphasis has precluded the working conditions of poor, marginalized and racialized women; female jobs or migrant women status from entering the official feminist agenda, whilst accepting the capitalist mode of production and social reproduction as a given. consequently, instead of fighting social hierarchies, liberal feminism has provided a better place within to a minority of women, whilst ignoring the rest. fighting violence against women has been a second major area of concern, but its conceptualization has been hetero-centered, grounded on binary distinctions and considering men as being violent and sexual predators per se. thus, liberal feminism has promoted a detailed regularization of sex and sexual relations through criminal law, and has contributed to centering heteronormativism, whilst marginalizing non-normative bodies and sexualities. this approach has failed to unearth that capitalism requires binary sexual difference to be naturalized; that sexual violence and gender-based violence ensure the subordination of women and reproduction to men and production. it would be naïve to think that the status at risk only refers to women’s social status. rather, this debate shows a deeper crisis within feminist lines, as it challenges the status of some women, some theories, and some forms of theorizing within the feminist community. in fact, for decades now, intersectional feminism, post-colonial feminist theory and queer theory, amongst others, have challenged the theories and policies advanced by second wave feminism. yet, until very recently, the debates and disputes thus generated were well incorporated into the feminist heritage, enhancing it. institutional feminism openly expresses a fear of disappearing from the official public agenda, and from being recognized as mainstream. factors such as the increased visibility of the discrimination lgbtiq+ people and other groups suffer; the action and involvement of wider society movements and actors (civil rights movements, political parties, international bodies); the competition for public resources, and the attacks of ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 73 the anti-gender movement to all gender-equality programs may have contributed to institutional feminists’ perception of being relegated to the background or to a secondary position in the equality agenda. hence the symbolic character of sexual identity as representing society as we know it, and the fear of losing much more than female figures in statistics. challenging the gender binary construction of citizenship and its naturalization not only threatens heteronormativity but capitalism itself. affirming that sex is not a given biological category existing prior to society, or prior to human interpretation, but a political category grounding heteronormativity and capitalism dramatically challenges the order of things. challenging the sex-binary fractures the agreement of perceiving women as privileged victims. accordingly, the documents identify this as a manipulative anti-feminist practice, with consequences on the equal standing and citizenship of women, affirmative action policies and on the fight against gender-based violence. 5. a cultural war? when compared to moral crusades, moral panic episodes are intense moral crusades, concentrated within a short span of time, during which hostility towards the target group or situation increases, and has social and legal consequences that go beyond the episode itself. one could say, then, that what started in spain as a crusade in july 2019, developed into a panic episode because the space given to anti-egalitarian discourses in mass media was extraordinary; the hostility towards lgbtiq+ in general increased considerably, and has been a constant since then; and the negative impact in the final draft of the law is evident. what if, instead of a moral panic episode, a cultural war was at play?24 the distinctive trait of ‘cultural war’ situations is that the marked group or groups respond to the finger-pointing by challenging their labelling as deviant/ dangerous and by voicing an alternative understanding of the problem itself. although hostility is common in both situations, what differentiates one from another is the capacity of the target group to respond to the accusations, that is, the social status of the alleged devil folk, and whether it is heard, respected, and considered in society on a par. a close reading of the report of the committee on equality and non-discrimination (parliamentary assembly, council of europe 2021) seems to uphold this idea: “in spain, work began in 2016 on new legislation to facilitate trans people’s access to medical care and bodily autonomy, ensure that legal gender recognition is based on self-determination, and make the latter available to people of all ages. all are in line with assembly resolution 2048 (2015) and there was overwhelming public support for these changes (98% of responses to a public consultation carried out at the time were 24 i want to thank for this insight marina echebarria sáenz, president of the participation board of lgbti people at the equality ministry. trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 74 in favor) and cross-party support in parliament. however, the legislative process has since been blocked. extremely hostile anti-trans discourse has recently come from the highest political levels, including the vicepresident of the spanish government, who described legal gender recognition based on self-determination as putting the “identity criteria of 47 million spaniards at risk”. the bill was eventually debated in may 2021, following a hunger strike by 70 trans activists and parents of trans children, but failed to attain the necessary majority, notably because the majority party abstained. much of the opposition has come from antitrans feminist movements that portray trans people as a threat to society, and in particular to women, deny the identities of trans and non-binary people, suggest that they cannot be trusted to know who they are, and depict parents who are supportive of their trans children as criminals. trans activists underline that the hostile discourse from the highest political levels has legitimized violence against trans people and the denial of care.” (emphasis added). although the emphasised parts point to the moral crusade/panic elements, the quote suggests a cultural war, because there has been both resistance and response to the narrative of threat and to the panic in spain and elsewhere. for decades, feminist theories have given an alternative account of trans rights and gender identity;25 international treaty, documents and bodies provide an alternative account of trans rights and gender identity;26 and trans activists worldwide are fighting back the backlash to equality laws with strategies that range from hunger strikes to strategic litigation. a brief review of these alternative accounts is provided below. 5.1. an alternative feminist account nicholson (1994: 84) explains that the growth of a materialist metaphysics in xvii to xix century europe did not create new social distinctions, but it did transform the meanings associated to them. the modern western understanding of the distinction male/ female incorporated the physical characteristics as an explanation of the distinction itself. thus, it was in the nature of women to be excluded from citizenship. the body came to explain social standing precisely in a historic moment of greater social and political changes; a moment in which a growing separation between public and domestic life gave support to the biological explanation of the male/female distinction as a binary one. this distinction suited the roles and functions the new society required citizens to fulfill. in other words, modern western capitalist societies required men and women. biological 25 there are many different approaches and theories could be explained here, and not just queer theories (which are also varied). in fact, the ones i have chosen (l. nicholson, n. fraser…) are not queer theorists. 26 for an analysis of international human rights law in relation to sexual orientation and gender identity see, un general assembly, protection against violence and discrimination based on sexual orientation and gender identity, a/73/152, report of the independent expert, 2018. ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 75 theories of sexuality, administrative, legal and other forms of state control gradually led to the idea that everybody had to be either man or women from birth. thus, ‘biological sex’ or ‘sexual difference’ is, itself, a social construction fulfilling a political aim. a modern sexed citizenship was organized and developed along the binary division: men and women occupy a different position on the public/private divide, that unevenly distributes functions, status, recognition, and rights. key to sustaining the system is heteronormativity, this is, the extension of the heterosexual monogamous family as the norm, because it ensures the division of labor, the subordination of status and the production of human beings separated from economic benefit while ensuring the reproduction of heteronormativity itself.27 thus, a feminist transformative project should incorporate a critique to heteronormativity and the gender binary as being fundamental pieces to understand discrimination, violence and oppression; and could easily defend gender self-determination. a similar feminist approach is reflected in the mentioned un 2018 report on protection against violence and discrimination based on sexual orientation and gender identity. interestingly, the point of departure is expressed as follows: “6. the notion that there is a gender norm, from which certain gender identities “vary” or “depart” is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights. those misconceptions include: that human nature is to be classified with reference to a male/female binary system on the basis of the sex assigned at birth; that persons fall neatly and exclusively into that system on the same basis; and that it is a legitimate societal objective that, as a result, persons adopt the roles, feelings, forms of expression and behaviors that are considered inherently “masculine” or “feminine”. a fundamental part of the system is a nefarious power asymmetry between the male and the female”. especially since the who recognized in 2019 that transsexuality is not related to mental health, recent reports by international agencies foster the move towards depathologizing gender self-determination. de-pathologizing is a different process than that of recognizing gender-identity self-determination. de-pathologizing means not only that trans people cannot be treated as fools, but also that no diagnosis is needed for whatsoever reason to legally believe the person’s felt and expressed gender identity. this means that, although transitioning may require medical support, diagnosis and treatment (as when a person desires to modify her body), this is dissociated from any other social, legal or economic aspect.28 examples of such international documents are the 2018 27 arruzza, bhattacharya, and fraser (2019) demonstrate how capitalist western societies have exploited (and benefited from) the effects of racism, colonialism, and other forms of extractivism, and oppression. 28 thus, a diagnosis is not required to modify one’s registered sex, but it is necessary to receive hormonal treatment. this diagnosis and treatment some people may need cannot interfere in the legal recognition process. trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 76 report to the un general assembly, that analyses the scope of state obligations in respecting and recognizing gender identity self-determination;29 united nations human rights office of the high commissioner position paper (ohchr 2020) or the report of the committee on equality and non-discrimination-of the parliamentary assembly, council of europe (2021).30 5.2. european court of human rights case-law long before 2019, the echr recognized that article 8 of the european convention on human rights (respect for private life) implied “the rights for individuals to define their sexual identity”. it had also emphasized that the notion of personal autonomy includes the “principle of self-determination, of which the freedom to define one’s sexual identity” is one of the most basic features.31 yet, as the quotes manifest, the decisions concerned legal recognition of persons who had undergone reassignment surgery, and systematically used the term “sexual identity”.32 in garçon and nicot v. france (2017) the court had to decide whether the state’s refusal to remove the indication of sex on the birth certificates of the claimants, on the grounds that persons making such a request had to demonstrate that they suffered from gender identity disorder and that the change in their appearance was irreversible, amounted to a violation of article 8 in conjunction with article 3 (prohibition of torture and degrading treatment). the issue was framed as to determine whether the respect of the private life of the claimants obliged the state to recognize their gender identity without either requesting a gender disorder diagnose (de-pathologizing) or an irreversible change in appearance, thus recognizing body and personal autonomy. the state argued that amending an individual’s birth certificate could not be a matter of individual choice alone, “because the reliability and consistency of french civil-status records was at stake, and in the interest of the necessary structural role of 29 the report draws on the yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity. it guides states’ process to de-pathologizing certain gender identities and provides legal basis for state recognition of gender identity. it addresses the violence and discrimination that results from state’s lack of recognition of gender identity, and the effects abusive legal requirements have in the standing of trans people. it addresses the issue of recognizing the gender identity of children. it provides tools to fight violence and discrimination based on gender identity. and, last, offers a list of good practices and effective measures taken in different places of the world to ensure respect of gender identity. 30 see united nations human rights office of the high commissioner position paper (ohchr 2020) and the committee on equality and non-discriminationparliamentary assembly, council of europe, combating rising hate against lgbti people in europe, 2021 report. (np 18) 31 see for instance ch. goodwin v. the united kingdom, ap. nº 28957/95 (2002). 32 see a.p. garçon and nicot v. france, ap nºs 79885/12, 52471/13 and 52596/13 for a summary and list of cases at para 93. ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 77 sexual identity within the country’s social and legal arrangements” (para 105, emphasis added). thus, the echr had to decide if the legislation struck a fair balance between the general interest and the applicants rights. the court stated that whilst the principle that civil-status records must reflect “reality” is in the interest of trans people as well, by no means such principle precludes modifications of the civil records. on the contrary, claimants precisely argued that only if modifications are allowed such registers will reflect reality. moreover, the court affirmed that the aim of ensuring legal certainty does not justify presenting trans people with an impossible dilemma: either they undergo hormonal treatment or reassignment surgery against their wishes, thereby compromising their right to physical integrity with procedures resulting in probable sterilization; or they renounce to having their identity recognized and respected, which is a clear violation of their right to private life. thus, whilst recognizing states a margin of appreciation to fulfill their positive obligations ex article 8, the court proclaims that mandatory body modifications or treatments without fully free consent are abusive requirements, hence contrary to the convention; and re-affirms the right to gender self-determination. however, it expresses fears and doubts in regards with de-pathologizing as both the state (france) and the court understand disorder diagnoses as being protective measures facilitating trans people access to much needed help and support and protects them from taking wrong decisions about their lives and bodies. this approach was reproduced in a 2021 decision, despite the fact that the who had already excluded transsexuality from the list of mental-health disorders. in x&y v romania (2021) the claimants argue that the requirement of obtaining a judicial authorization to modify registered sex is an abusive requirement, violating article 8, because judges do not issue authorizations unless a dysphoria diagnosis is substantiated, and permanent body modifications are performed. the claimants also point to the fact that article 8 imposes upon member states both positive obligations of respect to their private life and gender identity, and negative obligations to refrain from interfering in their family and private life; this includes the requirement of a third-party authorization.33 unfortunately, the court did not analyze all the claims.34 yet it did affirm that because public order and legal certainty are at stake, rumania has the obligation to establish a clear, proportionate, fair, fast, and accessible procedure to modify public records, one that does not impose abusive requirements such as irreversible changes in appearance. in sum, according to the echr, states must recognize gender identity selfdetermination as constitutive of the individual right to private life and as part of an individual’s autonomy, and must put in place a clear, fast, fair and proportionate procedure 33 according to article 8, the interferences are only justified when some conditions are met. this approach was developed in a very interesting joint dissenting opinion of judges sajó, keller and lemmens in the case hamalainen v. finland, ap. nº 37359/09), 2014. 34 unfortunately, the court decided not to discuss the alleged violations of article 6 (due process), 13 (effective remedy), and 14 (prohibition of discrimination). nor did it discuss about the negative obligations of the state regarding art. 8, which would develop the de-pathologizing approach. trans justice fights trans moral panic the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 78 that reflects the individual’s gender identity. whilst the echr does not preclude a disorder diagnosis, it does require states to create a procedure that does not impose abusive requirements regarding body modifications, treatment, or a third-party intervention. 6. conclusion drawing on two of the most salient public debated documents, the psoe argumentative and the open letter, this paper has approached spanish current debates and narratives opposing to trans equality laws from a ‘social problems work’ perspective. advancing a reading within a broader transphobic context, the paper explores whether a moral crusade, followed by a moral panic episode took hold on spanish public debate from july 2019 to july 2022. the implicit claim is that both documents over-react to the vindication of equal rights for trans people, and wrongly present trans recognition and trans equality as a major social and moral problem to fight. the paper argues that a moral crusade against trans rights was clearly initiated but suggests that, rather than a panic episode, a latent cultural war manifested itself. the distinctive trait of ‘cultural war’ situations is that the group or groups marked as dangerous respond to the finger-pointing by challenging their labelling as deviant and by voicing an alternative understanding of the problem itself. although hostility is common in both situations, what differentiates the one from the other is the capacity of the target group to respond to the accusations, this is, the social status of the alleged devil folk, and whether it is heard, respected, and considered in society on a par. to illustrate such resistance, an alternative feminist account of trans rights has been summarized, supported by international agencies and, to a certain extent, by the echr that defends gender identity self-determination as an individual right. whilst recognizing that de-pathologizing has not been fully accomplished in the european context, and that not all battles have been won, the paper provides arguments to ensure trans justice, trans equality and trans human rights and to fights against different forms of anti-gender, transexclusive activism, narratives, ideologies and laws. bibliography álvarez, a, freixas, l, gilabert, m, miyares, a, rodriguez mazda, rm, sendón, v, serna, j & valcarcel, a: declaración de las firmantes de la carta abierta al presidente del gobierno tras conocer el borrador de la ley montero. available at: https://www.levante-emv.com/comunitat-valenciana/2021/02/09/ carta-abierta-feministas-ley-trans-34321497.htm. 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[accessed: february 2022] pound, r. 1958 (2002) the ideal element in law, library of congress, liberty find inc. psoe. comunicado nº 699 de 9 de junio de 2020. argumentos contra las teorías que niegan la realidad de las mujeres. (psoe, internal communication nº 699, from june, 9th 2020. (psoe, internal communication nº 699, from june 9th, 2020: arguments against theories denying women’s reality.) available at: http://www.abc. es/gestordocumental/uploads/sociedad/argumentario%20realidad%20 mujeres%20(1).pdf. [accessed: december 2021]. un general assembly (2018), protection against violence and discrimination based on sexual orientation and gender identity, a/73/152, report of the independent expert, 2018. available at: https://digitallibrary.un.org/record/1639754. [accessed: february 2022]. vanwesenbeeck, i. (2017) ‘sex work criminalization is barking up the wrong tree’, archives of sexual behavior, 46, pp 1631-1640. https://doi.org/10.1007/s10508017-1008-3 weitzer, r. (2007) ‘the social construction of sex trafficking: ideology and institutionalization of a moral crusade’, politics and society, vol. 35(3), pp. 447475. https://doi.org/10.1177/0032329207304319 wollstonecraft, m. (1998) a vindication of the rights of women (1791), köln: könemann. young, i.m (1989) ‘polity and group difference: a critique of the ideal of universal citizenship’, ethics 99, pp. 250-274. https://doi.org/10.1086/293065 yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity (2007), updated yogyakarta principles (2017). available at: http://www.yogyakartaprinciples.org. [accessed: february 2022]. case-law european court of human rights (2002), ch. goodwin v. the united kingdom, ap. nº 28957/95. european court of human rights (2014), hamalainen v. finland, ap. nº 37359/09. european court of human rights (2017), a.p. garçon and nicot v. france, ap. nºs 79885/12, 52471/13 and 52596/13. european court of human rights (2021), x&y v. romania, ap. nºs 2145/16 and 20607/16. spanish constitutional court decision (stc) 99/2019, plenary, july 19th 2019. https://assembly.coe.int/liferay/ega/pdf/textesprovisoires/2021/20210921-risinghatelgbti-en.pdf https://assembly.coe.int/liferay/ega/pdf/textesprovisoires/2021/20210921-risinghatelgbti-en.pdf https://assembly.coe.int/liferay/ega/pdf/textesprovisoires/2021/20210921-risinghatelgbti-en.pdf http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20mujeres%20(1).pdf http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20mujeres%20(1).pdf http://www.abc.es/gestordocumental/uploads/sociedad/argumentario%20realidad%20mujeres%20(1).pdf https://digitallibrary.un.org/record/1639754 https://doi.org/10.1007/s10508-017-1008-3 https://doi.org/10.1007/s10508-017-1008-3 https://doi.org/10.1177/0032329207304319 https://doi.org/10.1086/293065 http://www.yogyakartaprinciples.org ruth m. mestre i mestre the age of human rights journal, 18 (june 2022) pp. 59-81 issn: 2340-9592 doi: 10.17561/tahrj.v18.7023 81 spanish legislation and drafts ley 3/2007 de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo. (law 3/2007 of march 15th, regulating modification of sex registration.) boletín oficial de la cortes generales. congreso de los diputados. serie b. proposiciones de ley, 3 de marzo de 2017, núm. 91-1, proposición de ley 122/000072 proposición de ley para la reforma de la ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo de las personas, para permitir la rectificación registral de la mención relativa al sexo y nombre de los menores transexuales y/o trans, para modificar exigencias establecidas en el artículo 4 respecto al registro del cambio de sexo, y para posibilitar medidas para mejorar la integración de las personas extranjeras residentes en españa. presentada por el grupo parlamentario socialista. (oficial bulletin parliament, act proposition march 3rd, 2017, num. 91-1 to amend law 3/2007, of march 15th, regulating modification of public registered sex, to allow modifications regarding sex and name of trans minors, modifying article 4 requirements regarding registered sex modification and to adopt measures facilitating the integration of migrants residing in spain. presented by the socialist parliamentary group). websites alianza contra el borrado de las mujeres. available at: https://contraelborradodelasmujeres. org/. [accessed: february 2022]. xvi escuela rosario acuña, gijón, july 2019. available at: https://www.youtube.com/ watch?v=unaa2e0bmwc. [accessed: february 2022]. wikipedia-terf. available at: https://en.wikipedia.org/wiki/terf. [accessed: february 2022]. ilga. available at: https://www.ilga-europe.org/what-we-do/our-advocacy-work/transand-intersex/trans. [accessed: february 2022]. received: december, 16th 2021 accepted: february, 21st 2022 https://contraelborradodelasmujeres.org https://contraelborradodelasmujeres.org https://www.youtube.com/watch?v=unaa2e0bmwc https://www.youtube.com/watch?v=unaa2e0bmwc https://en.wikipedia.org/wiki/terf https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/trans https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/trans trans justice fights trans moral panic* abstract 1. introduction 2. moral crusades, moral panics and cultural wars 3. transexclusive documents 3.1. the argumentative 3.2. the open letter to the president 4. brief diagnosis 4.1. the elements of a crusade 4.2. unveiling power 5. a cultural war? 5.1. an alternative feminist account 5.2. european court of human rights case-law 6. conclusion bibliography case-law spanish legislation and drafts websites trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 19 trans-visibilities and sexual politics: temporary passages in spanish popular cultures* assumpta sabuco i cantò** abstract: this article aims to review the models that historically have shaped technologies of gender through popular representations in spanish culture. first, an anthropological view will be cast on the naturalised catholic-francoist models that exalted heterosexual dichotomies and reproductive marriage. this includes an analysis of how, although the criminalization of transsexuals aggravated their situation, resistance movements generated a wide range of cultural references and possibilities for inclusion. second, the article will review the models associated with spain’s transition to democracy and their evolution moving on to the beginning of the 21st century. finally, it will draw an outline of the trans models produced during the past two decades and their popular expressions. keywords: performance, transsexuality, spain, politics, gender, sexuality. summary: 1. introduction. 2. different normalities and their ruptures: reproductive heterosexuality, transvestites and cabarets (pre-gay stage). 3. transition to sexual modernity (gay stage). 4.towards a new sexual citizenship (post-gay stage). 5. some final reflections. 1. introduction there is currently a growing interest in analysing the cultural representations that have sexualized spanish society from its transition to democracy in the second half of the 1970s to our days (colling and sabuco 2021; harsin and platero 2021; valcuende and cáceres 2021; rampova 2020; nash, 2020; platero and roson 2019; chamouleau 2018 ; ballesteros 2001). among all the pioneering studies that cover transsexuality in spain during that period from an anthropological perspective (guasch 1987; nieto 1987, 1998; cardín 1984), the work of guasch and grau is of particular interest. their 2014 article described how the transvestite and the operated transvestite were hegemonic categories in what they call the “pre-gay period” (1970-1982), while the transsexual category has prevailed throughout the “gay period” (1982-2005). in the current “post-gay period”, the transgender category stands as a conceptual and discursive novelty that includes and at the same time goes beyond the preceding ones (guasch and grau 2014). *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. **associate professor (profesora titular) of social anthropology, universidad de sevilla, spain (assumpta@ us.es). trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 20 concerning terminology, and upon reviewing the use of terms such as transvestite, transsexual or transgender in popular spanish culture, platero's remarks appear relevant for our purposes: “the word ‘transgender’ intends to avoid this distinction [between pre and post-operative status] regarding transition and surgery, and contains different meanings and contexts (hausman, 1995; nieto, 1998; valentine, 2007). however, this term has not had the same predicament in spain. taking these distinctions into account, throughout this article i will use the english term ‘transgender’ when referring to the term ‘transexual’ as used in spanish” (platero, 2011: 599). bearing platero’s observation in mind, the terms transvestite, queer, transsexual or fluid gender will be used in this paper in their loose spanish popular meaning. it should also be born in mind that different generations will prioritise different sets of terms over others as identification references. now, like many other countries in the so-called western world, spain has an ageing population (herce 2016). although immigration and the impact of covid-19 may alter this circumstance, they do not affect it for the purposes of our reflection. the drop in birth rates explains the population prominence of people over the age of fifty. this in turn explains why to a great extent spanish social mores and mentalities are still rooted in franco’s times. franco's dictatorship imposed a catholic morality based on the exaltation of the virtuous woman, wife and mother, the submissive, prudish and modest perfect wife. sexuality was destined for reproduction and imprisoned in the institution of marriage. military virility was incorporated into the figure of the breadwinner, the head of the family, acting as domestic and public authority. homosexuality, bisexuality and nonbinary identities were persecuted. la ley de vagos y maleantes (layabout and wrong-doers act), dating back to 1933, was amended in 1954 to allow for the arrest of homosexuals and transsexuals, as well as pimps, ruffians and “professional beggars” or exploiters of beggars, all with a view to preserving spanish social honour (subrat 2019; ramírez 2018). known as la gandula, the act was implemented to send homosexuals, transsexuals and pimps to forced labour or to prison. democracy and membership in the european union meant greater visibility of lgtbiq groups in public spaces and social organisations in spain. this was part of a new kind of modernity that flourished during the 1980s, one that opened the country to new sexual subjectivities and that became popular through the work of internationally acclaimed artists such as pedro almodovar. within the field of academic studies, oscar guasch’ book the pink society (1991) framed the parameters of these new ways of living sexuality in spain. the new millennium has brought along significant changes in the field of sexuality, including the regulation of same-sex marriage in 2005 (sabuco and colling 2020) and the greater visibility of trans groups and fluid gender subjectivities. these changes express, in lila abu-lughod’s terms, the evolving cultural "patterning" of society (abu-lughod 1987). they point to a wider acceptance of transsexuality. this is expressed through legislative changes, a greater normalization of transsexuality away from the repressive assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 21 policies of franco’s regime and a larger diversity of identities as sex-gender referents. yet social demands and legal achievements in this field continue to arouse social and political confrontation. this has reached feminist ranks, as we shall see, with some sectors of feminism embarking on a fierce battle against trans demands and the "erasure of women" to which, they argue, these demands will lead. in this context, our anthropological reflections on the new gender politics open with the question of how trans representations have been made visible in popular culture. how have the representations of transsexuality changed in spain since the dictatorship? how have they been approached by social sciences? to address these questions, this article proposes a diachronic review that contextualises the changes and the current state of sexuality in spain, a country marked by the strong influence exerted by religion, as well as by a culture of dual politics, defined by the polarised confrontation between conservative and progressive positions. the different representations of sex and bodies are condensed between these two poles. in one extreme we find disciplined bodies that reproduce the hegemonic conservative order. the other is inhabited by subversive bodies that yearn for recognition and seek social transformation. between the two there are a wealth of possibilities, concealments and transitions, resulting in a rich array of different and mobile itineraries. in this article, they will be analysed from the standpoint of queer theory (halberstam 2015). the focus will be, more specifically, on artistic expressions, as these offer particularly useful tools when tracing the different models of representation of transsexuality that today subsist as technologies of gender (de lauretis 1987). the technologies of sexiness (evans and ridler 2015) give greater social value to bodies that reflect social ideals. the greater erotic capacity of diverse bodies, less stereotyped by class and age, has been reconfigured in spain. transgressing existing codes brings along new body landscapes, new possibilities for excitement and pleasure. the punishments, the dangers that underlie non-compliance, provoke fear and excitement at the same time. as carole vance warns in pleasure and danger, the exploration of sexuality has never been foreign to these polarizations (vance 1989). they manifest different visions of the world, of present reality and of possible futures. in view of all this, the standpoint of the genealogical methodology proposed by michel foucault appears useful for analysing how sex-gender technologies, based on the premises provided by gayle rubin (2007) and teresa de lauretis (1987), generate sexual representations. films, songs and shows are powerful ways of creating, reproducing or modifying sex-gendered mentalities. following de lauretis, who in turn takes her “conceptual premise from foucault’s theory of sexuality as a ‘technology’ of sex”, “too, both as representation and as self-representation, is the product of various social technologies such as cinema, as well as institutional discourses, epistemologies, and critical practices; by that i mean not only academic criticism, but more broadly social and cultural practices” (de lauretis 1987: ix). trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 22 conservative and progressive positions have become more entrenched and polarised with the pandemic. modesty and the obscene clash even more starkly since covid-19 came to disrupt both the public sphere and the private, domestic one. this makes it all the more interesting to investigate the subsistence of docile bodies forged in the norms of modesty and decorum, in the face of the virtual exposure of multiple, abject sexualities (foucault 2010). the result of all this is the set of normative criteria that a society imposes on bodies, on their uses, on the images and words that accompany them. timothy o’leary points this out about transgression: “bataille, in his linking of spirituality, sexuality and excess, tries to develop a language for this experience – in effect his work constitutes, as foucault says, a preface to transgression. the second point to make is that for foucault (and bataille), contrary to what one might expect, transgression is not essentially a matter of breaking limits. of course, it involves a movement which is hostile to limits, but it cannot be defined simply in terms of a negative or violent assault on limits; it doesn’t aim for its own completion in an annihilation of the limit. rather, the limit and transgression rely on each other in a mutual relation which is positive in nature. in fact, transgression, according to foucault, is a kind of affirmation; an afirmation which has no other content than the existence of difference itself” (o’leary 2011: 44) as domenec font points out, obscenity is found on the border between order and disorder (font 2005). subject to social and aesthetic codes, it is both familiar and enigmatic, allowed in certain contexts, forbidden in others. it serves to point to the proscribed, the unrepresentable, while at the same time imbued with desire through the allure of prohibition. its variability bespeaks its capacity to adjust to historical times, to technological dispositions, to the codification of rectitude and etiquette. disruptions of these norms are signs of opposition and rejection, while at the same time generating new models, based on shamelessness and informality (bataille 1984). what follows is a diachronic review of the main sexual representations in spain, structured in the three stages (pre-gay, gay and post-gay) proposed by guash and grau (2014). first, we will explore the changes brought about by the opening of spain to tourism in the 1960s. second, we will investigate the framework opened by franco's death and spain’s democratisation, and the changes and greater visibility of lgtbiq groups that ensued. finally, we will draft the characteristics of the new sexual expressions and their demands for more equitable laws, in a society where fluid genders embody a clear transition from binary and reproductive models. 2. different normalities and their ruptures: reproductive heterosexuality, transvestites and cabarets (pre-gay stage) spain’s opening to tourism during the 1960s was accompanied by the reaffirmation of traditional models of masculinity, with a view to curbing the impact that openness and modernisation could have on "the" spanish identity (nash 2018; coll planas 2010). controlling men's sexuality was a matter of state relevance, related to national identity. assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 23 to this end two stereotypes were promoted and spread: the married, hard-working, urban figure popularly baptised with the also popular surname “rodríguez”, and its counterpart, the don juan. both served to reinforce the position of the father of the family and heteropatriarchal values. pedro lazaga's films, el cálido verano del sr. rodríguez (“mr. rodriguez’s hot summer”) in 1964, and tres suecas para tres rodriguez (“three swedes for three rodriguez”) in 1975, served to popularise a middle-class or working-class male head of a family who enjoys some sexual permissiveness while his family is on holiday. the object of seduction was always a foreign woman, generally swedish, who personified freedom and the dangers of a free, highly sexualised femininity. the films were inspired by the north american film the seven year itch by billy wilder, la tentación vive arriba (“temptation lives upstairs”) in its spanish translation. in contrast to the sensuality exuded by the latter, el cálido verano del sr. rodriguez reinforced the values attached to the figure of the wife and made fun of the sexual fantasies that might be entertained by any honourable man of the time, particularly if they did not end up in extramarital sex. the failures of these rodriguez met popular success. the expression continues to be a joke to this day, one that makes fun of the (stereotypical) secret sexual imaginations entertained by married men over fifty. working-class single men, for their part, enjoyed in the popular imagination the characteristics of don juan. inexhaustible sexual desire, a physically attractive body and an oratory capable of conquering any woman at will, defined these young working-class men –spanish men in general, although francoist mores restricted this profile to (young) bachelors. beaches, bars and hotels were the hunting grounds for these latin lovers, who also stood as part of the northern european imagination (nash 2020). the sexuality they flaunted was dressed in animal-like savagery: it was the corporality of the nether regions, a natural and boundless primitive sex. to uphold spanish national pride and reverse the play of geopolitical power, the summer conquistadors "took advantage" of foreign women. in these portrayals, foreign women were objects of consumption, "prey" for the hispanic hunters who, at the same time, guarded the honour of spanish women, to be “respected” until marriage, while letting off steam with the "guiris" (a rather dismissive slang term for foreigners). swedish women symbolised the sadness of sunless, bloodless societies: cold, libidinous and alien to the latin character, but very sexy. spanish women, on the other hand, were to be respected and to counterbalance male fieriness. the latter was conceived as a biological attribute; in the case of married men the only demand was that their extramarital affairs be discrete. still, bachelorhood was the vital phase during which sexual experiences should be accumulated. to this end, a crucial differentiation had to be drawn between easy women and marriageable ones. in this context, the notion of the obscene focused on women's bodies. the fact that mayors had to obtain a special permission from government in order for bikinis to be authorised on their beaches stands as an eloquent example of this. in this moral and legal context, where transgressions only came to reinforce the normative, the act on social danger and rehabilitation (ley sobre peligrosidad y rehabilitación social), of trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 24 1970, punished non-normative sexuality with sentences of five years’ imprisonment or internment in a psychiatric centre (espinosa 2020). yet there were also signs of rebellion. in 1971, jaime de armiñán directs mi querida señorita (“my dear lady”), starring josé luis lópez vázquez as an intersexual person. for some critics (hopewell 1989: 103), the story describes the harsh situation of poor women in spain, whose destiny was limited to domestic service or prostitution. indeed, the plot reflects the loneliness and marginality of a spinster from the provinces who falls in love with the lady she works for. yet it is about more than that, as the spinster is an intersex woman. once diagnosed by a doctor, she becomes a man, moves to barcelona and as a man conquers his "dear" lady. in 1974, the film odio mi cuerpo (“i hate my body”) by león klimovski, describes the misadventures of an engineer who after an accident, and in order to be kept alive, has his brain transplanted into a woman's body. two years later, in 1976, josé maría forqué addresses in una pareja distinta (“a different couple”) the role reversal between a cabaret drag queen, again josé luis lópez vázquez, and a bearded woman played by lina morgan. tourist destinations were, for homosexuals, centres of freedom, or at least places where the francoist state showed more permissiveness. stories at the fringes of the norm in tourist towns like torremolinos and benidorm were mythical; interestingly, during recent times of pandemic, they are being the subject of celebration and historical recovery through publications (cáceres, valcuende del río, parrilla molina & martín-pérez 2021). during the seventies, transvestite, transexual and non-binary figures occupied the place of the obscene, and homosexual transgressions were heavily persecuted. ocaña (1947-1983), a trans artist in barcelona, used to dress as a woman while showing his penis in his walks along the ramblas. his work as an artist, transvestite performer and homosexual activist was recognised early on in films such as ventura pons' ocaña retrato intermitente (“ocaña, an intermittent portrait”) in 1978. his figure has also been recovered in the new millennium (aliaga 2011; colling and sabuco 2021). in valencia, anastasia rampova (1956-2021) embodied an irreverent ideal of freedom where life was a constant cabaret. her memoirs, kabaret ploma 2. socialicemos las lentejuelas (“kabaret ploma 2. let’s socialise sequins”), were published in 2020, including essays by juan vicente aliaga and lourdes santamaría. the spanish cinema academy has so far ignored the contributions made by these and other transgressors (pérez sánchez 1999, 2007). with a certain naivety, spaniards longed to see what at the time they could only imagine. this desire pushed many to cross the french border to escape from national catholic narrowness and see european productions that were banned or harshly censored in spain. seeing bertolucci's the last tango in paris (1972) in perpignan was an act of obscenity for the thrill of avoiding the 1972 censorship and of sharing banned scenes with friends when back at home. married couples often travelled abroad with friends to watch it; the long queues, the feeling of transgression, the visualization of the obscene -the anus and butter sexual sceneremain unforgettable memories. the film was released in spain in the midst of its transition to democracy, in 1978, and made a great impact, particularly because it fed the desire to experiment with parts of the body strongly stigmatised as related to homosexuality. assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 25 3. transition to sexual modernity (gay stage) after franco's death in 1975, films previously forbidden became accessible in spain. many were of little artistic value, but very popular. they would mark the so-called spanish destape (uncovering), as the exhibition of nudity in cinema was nicknamed (castro 2009). exhibiting the naked bodies of beautiful women was the only aim of films such as pepito piscina (“swimming pool pepito”, 1978) or el liguero mágico (“the magic garter”, 1980). this new sexual freedom reached trans representations (melero 2010, 2015). in 1977 vicente aranda’s film cambio de sexo (“sex change”), bibiana fernández, a trans woman known as bibi andersen, debuted with her popular stage name, marking a significant shift in trans-visibility. the protagonist is a trans woman who must fight against her father's masculinisation attempts and flees to barcelona to start a life more in line with her selfassignment. there, with the help of a cabaret star, played by a real trans artist, she opts for having her sex reassigned in casablanca. the film is of documentary value, particularly because the centrality of the transformation process offers very realistic footage. in the 1977 film el transexual (“the trans”), featuring performers like paco españa, josé lara recounts the death of a trans star, lorena capelli, who died of complications in the sex reassignment operation. though blurred by the success of aranda's film, the mix between documentary and fiction makes it a valuable precedent for a forward-looking approach to transsexuality (dentell 2011: 12). in almodovar's short film (1977) sexo va, sexo viene (“sex goes, sex comes”), a boy decides to mutilate himself to become a woman, in order to obtain the love of a girl he had met on the street. however, the bodily change provokes a new loving drive towards men, in a parody of the hybridizations that shape gender and sexuality (grau 2015). in 1978 pedro olea filmed un hombre llamado flor de otoño (“a man named autumn flower”), about the double life of a transformer in barcelona, lluis, interpreted by josé sacristán. sex-change comedies became common in the late 70s and 80s: ellas las prefieren …locas (“women prefer them...wild”, by mariano ozores, 1977, playing with title of the film “gentlemen prefer blondies”, by howard hawks); la tía de carlos (“carlos’s aunt”, by luis maría delgado, 1989), featuring paco martínez soria; policía (“police”, by álvaro saénz de heredia, 1987); canción triste de … (“... blues”, by josé truchado y antonio ozores, 1989). trans people occupied a space between the morbid and the fascination (berzosa 2014). in live performances, transsexual shows were always expected to finish with a display of genitals. according to mira (2008: 401), this is an expression of the privileges of the heterosexual gaze and its obsessions with the anomalous, with the extraordinary as opposed to the norm. at the same time, moralising arguments underlined the dangers of sex reassignment operations. yet many demonstrations for lgbtiq rights used the transvestite to force social change in gender dichotomies. “in 1977 the valencian countercultural magazine los marginados dedicates a monographic issue to «social dangers». on the cover, in the foreground, trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 26 we can see the face of a man with makeup. to represent transvestites, nazario draws a funny picture of "miss social dangerousness", a bearded transvestite who exclaims provocatively and happily "they say that for us the whole year is carnival" (picornell 2010: 287). during the transition years, the curiosity and attraction towards transvestites turned in their favour (kwan 1999). yet the popular appropriation of the figure of the transvestite responds to a metaphor of the desire for social change, for stripping dictatorial power of its old masks, not so much for a greater consideration towards transvestites themselves or for the desire to rupture with the heteronormative system (moreno 2021). trans marginality could be vindicated in a humorous tone, but what trans people demanded was greater integration, expansion of their rights and betterment of their living conditions. with democracy and the recognition of civil rights, new sexual stereotypes were sought through cinema. bigas luna shot tatuaje (“tattoo”) in 1978 and reached the cannes film festival in the same year with bilbao, a film where a psychopath falls in love with a prostitute. the highly erotic content of his films provoked both rejection and excitement, as they dealt with taboo subjects. it is notably the case of his 1979 film caniche (“poodle”), which tells two siblings’ incestuous story. despite the scandalous relation between the two, dani, a french poodle, is the real protagonist in this representation of zoophilia. the popularity of filmmaker pedro almodovar marks an era of exaltation of sexual freedom and transgression: pepi, luci, bon y otras chicas del montón (english title: “pepi, luci, bom”) of 1980, laberinto de pasiones (english title: “labyrinth of passions”) of 1982, la ley del deseo (english title: “law of desire”) of 1987, all frame the imaginary world of the 1980 for wide sectors of the population, now in their fifties. la movida madrileña (“madrid movement”) was a symbol of the democratic transition and sexual freedom -an association between the transition to democracy and greater sexual freedom that has been criticised by villarós (1988) and labrador (2017). actresses like antonia san juan and bibiana fernández achieved great popular recognition, which they used to overcome the obstacles posed by a transphobia still very present in the performing arts. almodovar will once again represent transsexuality in his 2004 film la mala educación (“bad education”). even in this new context of openness, however, trans groups continued to be seen as the source of greatest scandal and moral panic, hence excluded and marginalised. indiscriminately included under the category of transvestites, their visibility was reduced to the artistic environments of the cabaret, with figures such as paco españa or angel pavlovsky, and to prostitution. the 1980s mark, in any case, a generational break with the catholic and francoist morality of the older generations. musical groups such as kaka de luxe, alaska y los pegamoides and radio futura achieved great popularity with songs in which the body and pleasure are expressed beyond normative limits. the female punk quartet las vulpes, with their song me gusta ser una zorra (“i like being a bitch”, 1983), generated great controversy. based on i wanna be your dog, by the stooges, it used obscene language to defend assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 27 masturbation or social climbing through fellation. the political reactions were resounding, and the group members were sued for public scandal. the b-side of their single inkisición criticised religious sentiments and catholic double standards. the director of the television program where it was broadcast was fired. conservative politicians of the time demanded five years’ imprisonment and ten years’ disqualification from public office for him. vestida de azul (“dessed in blue”, 1983), antonio giménez rico’s documentary on the lives of trans women, based on their own life stories, enjoyed wider acceptance, as well as great success at the san sebastian film festival, where it was premiered with its protagonists in attendance. in 1987 the first association of transsexuals in spain was created: transexualia, which sought to bring the struggle for visibility and the recognition of civil rights away from the previous stigmatising gaze (mejía 2006). zacarías urbiola premiered in 1989 a film entitled la pitoconejo or el regreso de evaman (“the cockpussy” or “the return of eve-man”, 1982), which shows continuity in trans representations. the film tells the story of two transsexuals at the service of a scientist, professor pissinguer, who uses a love gun on them. the leading roles were played by trans actresses ajita wilson and eva coatti, who had worked with actors closely linked to franco’s times in the popular culture, such as mariano ozores and andrés pajares. the film comes to show the survival of traditional stereotypes surrounding women’s exuberant bodies, now applied to trans women. curiosity about the bodies of trans women is highlighted when, after wilson's death, journalists insisted on corroborating whether she was transsexual, or not. to this carles aured, director of the 1982 film apocalipsis sexual, simply replied: "she was charming, beautiful and very professional. the rest is not important” (mulholland 2020). despite boasting greater trans visibility (melero 2010), however, this period is best characterised by the strong presence that homosexuality gained in cultural imagination, by homosexuals’ vindications and by their eagerness to embark on the consumerist prototypes of the pink market: body cult, saunas, exclusive venues (guasch and más, 2014), as a way to grow their own cultural roots in spanish brand-new democracy. 4. towards a new sexual citizenship (post-gay stage) despite resistance, the generational change multiplied sexual possibilities. these became closely associated with the left and erased part of the social stigma against divergent sexualities, criminalised until the end of the eighties. visualising naked, nonbinary bodies, experimenting with a sexuality not associated with reproduction and its associated dangers, characterise the so-called x generation. improvements in women's sexual health were achieved and sexual liberation claims were strengthened. the impact of aids served to articulate protest movements through collectives such as radical gay or lesbianas sin duda (“lesbians no doubt”). the 1990s and the beginning of the new millennium enriched queer proposals with what became "a bible": el manifiesto contrasexual, by preciado (2002). many feminist groups engaged in the manipulation of dildos, in making instruments that imitated the penis in order to urinate in the street and in the transgression of norms trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 28 around modern femininity as established by institutionalised feminism. despite advances in laws seeking equality and recognition of sexual diversity, millennials felt that not enough progress was being made, especially as regards the breaking down of gender binary premises and a sexuality that, from the institutional point of view, was still predominantly heterosexual. being lesbian/gay/bisexual as a choice or phase rather than a fixed o predetermined identity stood as a critique of identity politics. the impact of the internet and dating technologies have changed the forms of courtship, the durability of the bond and the content of desire. as in other countries, the technification of sexuality has meant major changes in the further sexualisation of bodies, pornification, the pursuit of success and the increase in venues, possibilities and objects of pleasure (langarita 2015). the commodification of sex and the rise of toys encouraged so-called tuppersex, sexual meetings organised in the style of tupperware parties in houses, where one is invited to try out different sexual gadgets. its diffusion in spain ran parallel the transformation of sex shops and perceptions of sex work and the increased consumption of pornography. the regulation of same-sex marriage in 2005 was the culmination of this wave of sexual modernity in spain (sabuco and colling 2020). getting there was not easy, as the project was caught between the poles of political confrontation: it was perceived as a provocative stance of the socialist party psoe and gathered strong opposition from right-wing parties and the catholic church, which organised mass demonstrations against homosexuality and in favour of heterosexual reproductive marriage. in this context, the film veinte centímetros (“twenty centimeters”, 2005), by ramón salazar, continued the line of visibility initiated by almodovar, yet without the same public success. it shows how marieta's desire not to be named after her father and not to have the same size penis as him is aggravated by narcolepsy and her dreams of musical shows. the film was awarded prizes for best screenplay and best soundtrack at the malaga festival. the 2008 economic crisis led to an increased desire for security through affection and sex. spanish cities were filled with padlocks placed by young people, symbolizing mutual support and attachment. the liquid bonds of a transforming sexuality met with this search for solidity and support. in 2011, well within the crisis, the so-called 15m (15 may) movement revitalized the protests against a state that had manipulated and distorted the meaning of democratic citizenship. feminist, left-wing and lgtbiq groups demanded real and effective sexual democracy (fassin 2009). the politicisation and confrontation between left and right brought the emergence of new left-wing parties such as podemos (“we can”). a few years later, an extreme right-wing party, vox, railed against sexual advances and revived the francoist ideology with a strong following among a portion of the disenchanted young. against this backdrop, the so-called z generation, born between 1994 and 2009, is characterised by a strong entrenchment in communication technologies, pleasure-based learning, practical hedonism, greater sexual diversity and a revision of hierarchies. along with millennials, they have been most sexually affected by the pandemic. during lockdown, lgtbiq groups stressed their social presence through the internet. in the midst of limitations assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 29 to access premises, bars or places of sexual exchange, they have thus maintained their public presence, just as heterosexual groups have. in this way, they are being increasingly normalised in spain. normalisation was already underway (mira 2004; coll planas 2010). the film elisa y marcela (“elisa and marcela”, by isabel coixet, 2019) tells the true story of two galician teachers (marcela gracia ibeas and elisa sánchez loriga) who were married in church on 8 june 8 1901. it was the first same-sex marriage in spain, and the only one officiated by the church. it was possible because elisa passed herself off as a man, mario sánchez, and deceived the parish priest of dumbría (a coruña). regarded as a film about lesbians, it also pays some attention to transsexuality or cross dressing, indeed a central theme in the story. it has received numerous distinctions for its contribution to education in values. transexual groups have gained high visibility and have carried out a huge struggle during the pandemic. visibility has been enhanced by a national draft bill on lgtbiq rights, which has given rise to strong political controversies. the struggle for sexual self-determination and the search for measures against the stigmatisation of nonbinary children have been central. the most conservative positions have allied to prevent expressions of transsexuality in childhood, which has caused a great division of opinion even among intersexuals. at the other end, the spanish federation of transexuals has multiplied the presence of transgender people in the media through photos, art exhibitions and demonstrations. there has also been an increase in virtual meetings and the fight to gain support through social networks. the use of tinder and tiktok among the youth contrasts with the majority use of facebook among the older generations. as hilary radner (1999) suggests, the greater erotic capacity of diverse bodies, less stereotyped by class and age, has been reconfigured. imaginary bodies have been replaced by a greater need for real bodies in the pandemic. one interesting example of this is rodrigo cuevas (oviedo, 1985), a multidisciplinary artist with an academic musical background, who defines himself as a folk agitator. cuevas has created what he calls the elektrocuplé, a style that re-signifies popular artistic traditions, notably the couplé, especially from asturias and galicia. his immersion in local traditions, and his transgression of the codes of cabaret and cuplé with an interactive “divism”, it has all made an impression on audiences. in 2019 he began a tour, which he called trópicos de covadonga (“tropic of cavadonga”), toying with the literature of henry miller and the importance of sexuality. through 2020 he filled theatres and venues all over spain whenever it was possible to perform. considered the inventor of the tonada glam and cabaret underprao (a pun on the pairing of underground venues and rural culture), he sports a montera (a traditional asturian hat) and other traditionally asturian inspired clothing, transformed by the designer susana de dios. his aesthetic has become a reference for creativity. his manual del cortejo (“textbook on courtship”), produced by raúl refree, also a singer and discoverer and promoter of figures such as rosalía, was released at the end of 2019. in his shows rodrigo cuevas criticises the expansion of foreign dances such as swing or the capoira and reclaims local body codes. asturian dances such as the xiringüelo or galician dances such as the muñeira are frameworks of affective significance, which differentiate his from works such as rosalía's el mal querer (“bad love”). from cuevas’ point of view, trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 30 their differences are down to a question of age. while rosalía adjusts to the patterns of a millennial, the search for a universal sense of beauty and eternity is the basis of cuevas’ proposal for seduction. contrasting with the liquid links of today’s social networks and their abundant use of emoticons, it is the poetic word, he argues, that must not be forgotten. in this sense, his work connects with distant generations, that of the older grandparents marked by the rituals of seduction from agricultural times, the rituals of the seasons. as he recalls in his shows, the difference between old forms of courtship and masturbation lies in beauty. the subtlety of romance and sex between older people contrasts with the liquid contacts of the young who prefer quantity to quality. he transgresses because he advocates multiple bodies (his use of traditional clothes and garters, his poses in underpants next to a donkey, the ostentation of an erotic body far removed from hegemonic codes). the syncretism of his staging is rooted in memory: a galician montera hat, colorful lace t-shirts, the traditional waistband, a japanese yukata and asturian madreñas shoes (hidalgo 2021a). his is the body of a homosexual man who lovingly loves other men but who sings of love itself as a personal and collective quality: it all shows awareness of one's own body and its musical configurations. in his interviews he alludes to the homophobic discourses of the extreme right; in his work, he upholds the authenticity of traditional sources in the face of mass individualism. located at the fringes of the counterculture, he has altered well-known folk songs and made an impact with low budget videos in which friends and residents of his village take part (hidalgo 2021b). not being afraid to ask the audience to shout like their grandmothers is a way of questioning evolution and unstoppable modernity. on authenticity, he declares "when something is too contrived, i stop liking it". rodrigo cuevas has claimed the countryside for the young and the city for the old. he lives in the small asturian village of vegarrionda, with fifteen inhabitants. from his home he broadcasts free streaming of different performances that have gathered many followers. he has maintained a strong public support for lgtbiq struggles. indeed, he has recovered and dedicated many of his songs to well-known homosexuals from the past, such as the habanera he dedicated to rambal, who cross-dressed in a neighbourhood in gijón and was murdered in the 70s. samantha hudson, the alias of ivan gonzález ranedo (león, 1999), goes one step further. a singing artist and non-binary lgtbiq activist, she was fifteen when, in 2015, she recorded the song maricón (“faggot”), causing a huge scandal both at her school and beyond, when the song appeared on youtube. right-wing and religious sectors protested her obscenity, as she used constant references to the catholic church in her performances and interpretations. the far-right group hazteoir (“make yourself heard”) called for the school teacher who approved her work to be removed from public employment, for the broadcast to be banned from the internet and for her performances to be blocked. in the end, the video was removed from the platform. her camp provocations go beyond transgression to seek an interpellation of class. songs such as burguesa arruinada ("bourgeois ruined") and dulce y bautizada ("sweet and baptized") enquire into the possibilities of being gay and catholic. her first show assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 31 in 2021, eutanasia deluxe, is a pun based on the title of one of the most popular gossip programs on spanish television, sálvame (“rescue me”) deluxe. many of her themes are inspired by television programmes. her non-binary position, her trash aesthetic, her classconsciousness -she declares herself marxist and anti-capitalistand her use of obscene language serve to politicize art. in her/his graduation speech (s)he said: “the moment i put on a crown, it is a political act. the moment i put on a princess backpack, i am fighting against a system that oppresses me. and when i wear pink and go out on the street and draw attention to myself, i am fighting against a society that rejects me and denies me the right to enjoy my own life. because i really am in danger because of who i am («samantha hudson, una historia de fe, sexo i electro queer». https://ib3. org.)” samantha’s frequent use of social media is characteristic of her xxy generation. (s)he has a large number of followers on instagram. (s)he appears on platforms like netflix or filmin and enjoys cameo appearances as famous spanish personalities. (s)he has even featured in a filmin documentary about her own life entitled una historia de fe, sexo y electroqueer (“a story of faith, sex and electroqueer”). with the record label subterfuge and the production company putochinomaricon (s)he will release her/his third single disco jet lag. her/his lyrics are obscene both for their content, their exhibitionism and for the bodily performance accompanying them. these activities have allowed her/ him to abandon the sporadic jobs on which (s)he used to make a living in barcelona and to dedicate her/himself exclusively to her/his shows. in the last year (s)he has become the new spanish queer icon. the visceral nature of her (as she now prefers to be known) performances generates both enthusiasm and rejection. her mamarrachadas (extravagant, ugly and ridiculous acts), which she defends as part of a social class, scandalise; she even includes in her lyrics a call to marxism or photographs herself with a pink hammer and sickle, which is widely applauded among her followers. among art critics, her figure has been both dismissed as lacking aesthetic value and praised. joan porcel documented hudson’s transition from high school icon to instagram in 2018. in 2021 marc ferrer directed corten (cut) with the participation of samantha hudson and la prohibida, another famous trans, in a queer horror film. fran granada is responsible for the recording of todo por españa (“everything for spain”) where samantha hudson and papa topo resignify the values of transgression in the franco era and even shoot the dictator. the soundrack of corten, composed by adrià arbona, spread very quickly through whatsapp, internet, instagram and other social networks. 5. some final reflections the performances of rodrigo cuevas and samantha hudson express contemporary hybrid ways of conceiving sexuality. some are rooted in the past, others focus on a https://ib3.org https://ib3.org trans-visibilities and sexual politics: temporary passages in spanish popular cultures the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 32 non-binary future and incorporate new technologies for inventing and building new corporeality. they are all representations of sexual choices, of a way of life that goes beyond pre-established constraints, that adopts sarcasm and confrontation as a means of expression. at the core of it lies the idea of fluidity (langarita and grau 2017). it should not come as a surprise that different political positions have referred to this idea. vox has done so to criticise the social and sexual decadence of spanish society; at the other end, we find parties such as lef-wing más madrid, which has joined together with icons of sexual diversity such as la prohibida, cuentos rosales, and the filmmaker and cultural manager alex de la croix. the picture, however, is more complex. alexia herranz, a trans woman, aspires to become the first head of the popular party, the main conservative party in spain. gender fluidity is the great central theme of sexuality in today’s spain. for young people, it is a necessary demand and has led to battle for a national law on trans rights, which is finally being discussed in spain, and that is generating great upheaval. linking popular traditions to a new vindication of love experiences regardless of the sex of the individuals shows the porous limits of normativity and transgression. vindicating intersex, catholicism and the desire to be a mother, and doing so with obscene language, might still be reprehensible, but is very popular within the most progressive sectors. beyond gender fluidity, transphobia also divides and fragments spain and spanish feminists. the expression terf (trans-exclusionary radical feminist) speaks of trans exclusion and is also used as an insult against these sectors of feminism. terfs have been identified as inciting hate crime. a lawsuit was filed in 2019 against the feminist party of spain (pfe) and its leader since 1979, the marxist feminist lidia falcón, for disseminating hate against trans women. although it did not succeed, it led to the expulsion of the pfe from the united left, a left-wing political coalition, and its gradual proximity with the ultra-conservative vox. for their part, right-wing politicians, such as isabel díaz ayuso, head of madrid regional government, have announced their opposition to any attempt to update the existing legislation on gender identity. ayuso has accused left-wing parties of using homosexual and transsexual demands to gain political ground by claiming to be their only legitimate representatives. while the spanish population strives to adjust to a “new normality” after recent lockdowns, the youngest propose a different pace for sexuality and the meanings of citizenship, set by the globalized meanings of the obscene and the political potentials of body transgression. mar cambrolle, a politically prominent trans activist who boasts publications and activism at the national and european levels, has joined transsexual intellectuals such as preciado (2021) and lucas platero (2012, 2016) as points of reference. as platero and ortega-arjonilla (2016) stated in their study about elsa ruiz cómica, a spanish transgender influencer, the new constructions about sex and gender are mapping a different political trans visibility where digital media acquire centre stage, in line with the consumption habits of the youngest generations (see also tortajada, willen, platero and arauna 2021). the presence of fluid gender experiences is becoming more frequent every day. a new trans visibility is becoming evident on television, movies, talks, meetings, news. assumpta sabuco i cantò the age of human rights journal, 18 (june 2022) pp. 19-37 issn: 2340-9592 doi: 10.17561/tahrj.v18.7063 33 the crisis associated with the pandemic, social fears in the face of an uncertain (fluid) future, spain’s growing political bipolarisation, all seem to place us at a kind of crossroads: either we go down the road of a ground-breaking, open, multiple and fluid approach to sexuality or we return to heteropatriarchal reproductive constraints. the choice should be clear. references abu-lughod, l. 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(1989). placer y peligro. explorando la sexualidad femenina. madrid: talasa. vegas, v. (2019). vestidas de azul: análisis social y cinematográfico de la mujer transexual en los años de la transición española. madrid: dos bigotes. vilarós, t. (1998). el mono del desencanto. una crítica cultural de la transición española (1973-1993), madrid: siglo xxi. received: december 16th 2022 accepted: april 5th 2022 https://doi.org/10.1080/1369118x.2020.1797850 https://doi.org/10.1080/1369118x.2020.1797850 https://doi.org/10.1515/9780822390213 trans-visibilities and sexual politics: temporary passages in spanish popular cultures abstract 1. introduction 2. different normalities and their ruptures: reproductive heterosexuality, transvestites and caba 3. transition to sexual modernity (gay stage) 4. towards a new sexual citizenship (post-gay stage) 5. some final reflections references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 77 legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power1 constanza núñez donald2 abstract: cosmopolitan constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights. the author proposes that if we want to respond to the question of whether this project is possible and desirable, we need to analyse whether this is a plausible proposal, considering the distinctive features of law in the transnational sphere. in this light, the principal aim of this work is to show the principal challenges that cosmopolitan constitutionalism presents for the classic debates of legal philosophy, considering the current conditions of the international sphere. in this paper, the three topics that are considered are the debates between morality and law, law and power, and law and unity. the topics are problematized from the perspective of two contemporary scholars of cosmopolitan constitutionalism: luigi ferrajoli and jürgen habermas. keywords: cosmopolitan constitutionalism, philosophy of international law, global constitutionalism, transnational law. summary: 1. introduction. 2. cosmopolitan constitutionalism: concept and characteristics. 2.1. the uses of constitutional language in the international legal debate. 2.2. concept and characteristics. 3. legal philosophy and challenges from the perspective of cosmopolitan constitutionalism. 3.1. law and morality. (a) habermas and the janus face of human rights. (b) ferrajoli and legal positivist relativism. (c) legal cosmopolitanism and moral cosmopolitanism, separate paths?. 3.2. law and power. 3.3. law and unity. 4. conclusion. 1. introduction cosmopolitan constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights. the academic discussion regarding this concept has been focus on the analysis of its practical possibilities of implementation considering the characteristics of the global landscape. i propose that a productive path that could be followed to debate the possibilities would be to study the impact of cosmopolitan constitutionalism in critical debates of legal philosophy. 1 an earlier version of this work was presented at the xxix ivr world congress, workshop “globalization as a challenge to legal philosophy” (lucerne, switzerland). i am grateful to javier ansuátegui, isabel turégano and gulshan khan for their feedback at different stages in the writing of this article. 2 phd student (university carlos iii madrid). instructor at human rights center (university of chile) cnunez@derecho.uchile.cl. https://orcid.org/0000-0003-0152-9339 legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 78 traditionally, legal philosophy and constitutionalism were thought of and built through the lens of the state. however, if we want to develop a project such as cosmopolitan constitutionalism, we need to analyse whether it is necessary to change our comprehension of the main topics of legal philosophy by analysing the features of the law beyond the state. considering this problem, the principal objective of this work will be to show the principal challenges that cosmopolitan constitutionalism presents for the classic debates of legal philosophy in the light of the current conditions of the international sphere. the key topics are the relationship between morality and law, unity and law, and law and power. to carry out this task, firstly, a conceptual framework of cosmopolitan constitutionalism will be presented. this is a necessary analytical exercise because, in the relevant literature, there are many approaches regarding the idea. so, the first step in the research is to explain what cosmopolitan constitutionalism is and its foundations. in the second part of the research the three main debates of legal philosophy will be presented from the perspective of two contemporary scholars: luigi ferrajoli and jürgen habermas. i have chosen these scholars because they have developed a normative proposal of law and democracy that culminates with a cosmopolitan aspiration as part of a broader reflection in the context of a general theory. by examining these questions, i will be able to respond to the question of whether it is possible to construct the project of cosmopolitan constitutionalism through a new comprehension of legal philosophy in transnational and cosmopolitan terms. 2. cosmopolitan constitutionalism: concept and characteristics 2.1. the uses of constitutional language in the international legal debate the language of constitutionalism is often referred to in several ways in academic debates related to the global scenario.3 a variety of different expressions are used, such as “global constitutionalism”,4 “transnational constitutionalism” (neves, 2013), “world constitutionalism” (macdonald & johnston, 2005), “multilevel constitutionalism”5 and “cosmopolitan constitutionalism” (kumm, 2013). these expressions are sometimes used synonymously, but at other times they are used to represent different approaches to the question of whether it is possible to use constitutional language beyond state margins. as 3 a broader perspective on the uses of constitutional language can be found in (schwöbel, 2011; lang & wiener, 2017; and diggelmann & altwicker, 2008). 4 this is the most common expression, and it is defined by peters as “an academic an political agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order” (peters, 2009: 397). this expression encompasses many different approaches to this matter and has been presented as an interdisciplinary approach. see in this respect the first editorial of the journal “global constitutionalism”. the concept is also used in a critical perspective by schwöbel (2011). 5 the expression “multilevel constitutionalism” is often used to refer to the relations between autonomous legal systems that belong to a broader legal system, such as the european union. see pernice (2012). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 79 rodrigo points out, all that is a signal that “world constitutionalism” is a controversial concept that does not have only one version (rodrigo, 2014: 13). the distinction that is proposed here between descriptive and normative approaches is based on the analysis of the main purpose of each perspective when they use the constitutional language beyond the state. the descriptive approaches seek to find constitutional traits in structures and in international norms. they either highlight the existence of a “constitutionalization” process in the international scenario, or show the existence of a “world constitution”6 using the analogy as a strategy. the normative perspective uses the “constitutionalization” perspective but goes beyond it, because it looks forward and tries to study the aspects we have to develop to transform constitutionalism into a reality beyond the state. the main purpose of this approach is to propose or suggest criteria to resolve the problems related to the creation and legitimacy of law.7 so, if we use the distinction between the concepts8 “constitution”,9 “constitutionalization”10 and “constitutionalism”,11 we can argue that the first two concepts are more involved with descriptive approaches, and the normative perspectives are more centered on developing “constitutionalism” as a project. in these distinctions, cosmopolitan constitutionalism is characterized as a normative project,12 although it uses descriptive elements to argue about the possibilities of the project. why did we use the expression “cosmopolitan constitutionalism” and not “global constitutionalism)? even though “global constitutionalism” is more often used within the context of these debates, i use the expression cosmopolitan constitutionalism for conceptual and pragmatic reasons. for conceptual reasons, i use it because, as will be 6 verdross has been considered as the “founding father” of the world constitution discourse (kleinlein, 2012a) because his concepts related to the international community and ius cogens norms were important in the development of a constitutional frame of analysis of public international law (verdross, 1964). currently, these ideas are sustained concerning the united nations charter (fassbender, 1998) and in relation to ius cogens norms (de wet, 2006). 7 the distinction between the normative and descriptive approaches used to analyse the debate on global constitutionalism is used by klabbers to define the objectives of his book (2009a: 1-44). 8 these three concepts are used by peters &armigeon (2009); peters (2008: 386-387); and bodansky (2009: 565-584). these three concepts are also relevant to characterize the debates in the global constitutionalism journal, see wiener, lang &tully (2012: 4-6). 9 in the international field the use of the word “constitution” has been helped by the distinction between written and non-written constitutions, and even when we consider that in the scholarly field we do not have a common comprehension of the content of the constitution, it is an approach that pretends to be different to the international legalization approach because the constitution is a creative and constitutive statute of public authority. a study about the different approaches to the “constitution” concept at the international level can be found in diggelmann & altwicker (2008). 10 in regard to constitutionalization, it is possible to establish that this concept refers to the process inspired in constitutionalism, which is the “catchword for the continuing process of the emergence, creation, and identification of constitution-like elements in the international legal order” (peters, 2006: 582). 11 constitutionalism, as a political philosophy applied in the international field, can be described, as it is by many scholars, as a “frame of mind” (klabbers, 2009a; koskenniemi, 2007a), that is to say, a structure or frame of thought that involves three ideas: power limit, guarantee of rights, and legitimate authority. 12 another approach that can be identified as normative in these terms is “organic global constitutionalism”, which is sustained by schwöbel (2011). legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 80 presented, there exists a conceptual, historical, and empirical connection between these two ideas. additionally, it is important to use the “cosmopolitan” adjective because the use of “global” as a concept carries the risk of missing out the prescriptive content of cosmopolitanism (cortés & piedrahita, 2011: 226). the “global” denomination has also been used to describe the effects of globalization within the law or to talk about neoliberal policies; globalism has hidden under an apparent neutrality a certain ideology that implies deregulation and liberalization (fariñas, 2012) and it is not necessarily linked with cosmopolitan principles. 2.2. concept and characteristics the following characterization of cosmopolitan constitutionalism as a project is a reconstruction of its arguments, departing from the relevant literature regarding the concept. within this project, there are two main approaches. we find that scholars have arrived at this concept by reflecting on law and democracy (in the context of a general reflection on the political philosophy and legal philosophy); and other scholars have developed this concept through specific reflections on the constitutional character of the international arena. in the first group we found scholars like habermas (1997; 1998; 2006; 2008; 2012; 2013a; 2014; 2015) and ferrajoli (1998; 2004; 2008; 2011; 2018a). both develop a normative proposal as part of a broader theory of law and democracy that culminates with a cosmopolitan aspiration. in the second group ,we find scholars such as kumm (2004; 2009; 2013; 2016), peters (2006; 2009a; 2009b), brown (2012; 2013), bryde (2005), petersmann (2013a; 2013b; 2017), corradetti (2016, 2017), stone-sweet &ryan (2018) and benhabib (2006, 2011, 2016), whose work emphasizes the reconstruction of a specific hermeneutic frame to comprehend the relation between international and national relationships in constitutional and cosmopolitan terms. even though the starting point is different in these approaches and also considering their different denominations (post-national, beyond the state, global and cosmopolitan), cosmopolitan constitutionalism as a normative approach has minimal characteristics: (i) it is presented as a transformative and critical project, (ii) it puts rights, democracy and the rule of law in a central role, (iii) it uses conceptual and pragmatic arguments, and (iv) it is an heir of legal pacificism. (i) cosmopolitan constitutionalism: a transformative and critical project. the characterization of cosmopolitan constitutionalism as a project is described by peters in the following terms: “i employ the term ‘global [cosmopolitan] (or inter-national) constitutionalism’ in order to characterize a strand of thought (an outlook or perspective) and a political agenda which advocate the application of constitutional principles, such as the rule of law, checks and balances, human rights protection, and democracy, in the international legal sphere in order to improve the effectivity and the fairness of the international legal order” (peters, 2006: 583)”.13 13 kumm also defines it as “a normatively ambitious project of establishing legitimate authority among free and equals” (kumm, 2013: 609). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 81 it is a transformative project because, contrary to the traditional prejudice against this concept (zolo, 2005), it does not use the “domestic analogy” as a strategy. instead, it seeks to develop new criteria to comprehend the creation and legitimacy of law in the international field (peters &armigeon, 2009: 389). none of the proposals have a commitment to a global state, because the idea is not to create a global government, although constitutionalizing global governance (peters, 2009a: 404). moreover, it seeks to transcend the differentiation between national constitutional law and international law by proposing new criteria: the cosmopolitan. one example of the transformative element is the comprehension of democracy. it is sustained within this approach that “we the people” have to be understood as involving the international community (kumm, 2013) and sovereignty must be comprehended as relational rather than national and state based (benhabib, 2011). the critical dimension can be understood in two ways: in one sense, in relation to constitutionalization, and in the other sense, concerning the critical character of the constitutional project. it is a critical perspective of the constitutionalization language because it does not rely on constitutional language without considering other special conditions within the international field. it is not a constitutionalism that creates selfevident hierarchies, nor is it a constitutionalism that seeks to unify diversity because of the anxiety caused by the lack of unity.14 cosmopolitan constitutionalism sustains that a complete constitution in the deepest and most legitimate sense does not exist in the international order, because it lacks legitimacy. cosmopolitan constitutionalism attempts to offer a response to the empty spaces within the constitutionalization discourse. considering these reflections, the critical potential of cosmopolitan constitutionalism is shown in its efforts to identify constitutional tendencies, but above all, through demonstrating anti-constitutional trends to remedy them (peters, 2006: 602). furthermore, the language is critical because constitutionalism has an internal perspective that demands that the arguments used to sustain legitimate authority be constantly revised, and that is why it does not have a necessary commitment to the status quo. therefore, the constitutional language is an appropriate tool for critiquing the structures of international law, which are sustained in domination, and therefore it demands that these structures be reshaped in order to be considered legitimate. (ii) human rights, democracy and rule of law. cosmopolitan constitutionalism is a composite concept, at the centre of which are prescriptions related to the central role of human rights, democracy and rule of law to argue about legitimate authority. these three elements are the foundation of the project and are named the “trinity” of global constitutionalism (kumm, lang, tully, & wiener, 2014). in regard to that matter, it is not a concept that we can describe as “formal” or “neutral”. even when we consider that the concept and the foundations of human rights can be different (as we will examine in the law/morality debate), and that the conceptions about democracy can change (for example, deliberative or substantial), as well as the institutionalization of the relation 14 this is the criticism that schwöbel raises about many aspects of the global constitutionalism discourse (schwöbel, 2011: 147). legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 82 between these elements (regarding the different proposal about institutional architecture), it can be sustained that the main goal of the project is to achieve the application of these elements at the global level and this is the fundamental basis to comprehend the legitimacy of the model. this implies that there is a connection between these three elements. however, it is not the same as the traditional constitutional design, because there are new elements or changes in the comprehension of the legitimacy of the model (regarding, for example, the comprehension of the demos or human rights understood as cosmopolitan norms). in a broader approximation, it is possible to establish that the relationship operates in this way: concerning human rights, because the cosmopolitan dimension is the foundation of the project, it is necessary to achieve the universal guarantee of human rights. human rights are a goal and, at the same time, a requirement of the international and national debates. democracy is not only a requirement and objective inside states at the national level, but also constitutes a goal at the global level because of the necessity of developing a legitimate authority. it also provides more complex demands regarding legitimacy at the national level (the cosmopolitan perspective adds new demands in terms of legitimacy to the “traditional model”). finally, the rule of law element stresses that the strategy of limitation of power to achieve these objectives is legal and constitutional. (iii) conceptual and pragmatic arguments. another aspect that is common in cosmopolitan constitutionalism is the use of conceptual and pragmatic arguments to justify the project. following the line developed by kant, whose arguments were pragmatic (related to cosmopolitan tendencies), and conceptual (reasonbased), these approaches intend to develop an argument that connects these two perspectives.15 in regard to that matter, the practical foundations allow us to sustain that it is not a philosophical utopia: “it is no mere deduction from wishful thinking, but induced by manifold general developments in international law” (peters, 2006: 605). from a conceptual perspective, it is sustained that there exists a conceptual connection between constitutionalism and cosmopolitanism considering the expansive force of constitutionalism, its historical character, and the current cosmopolitan turn of constitutional legitimacy. the first element highlights that constitutionalism has an expansive force because it is founded on universal rights. this implies that constitutionalism must be transformed in order to fulfil its promises by adapting its features, considering the historical conditions. if constitutionalism wants to be effective, stay in time, and be coherent with its pretensions of universality, it must be a cosmopolitan project (ansuátegui, 2008: 74). from a historical perspective, the scholarship argues that the connection between these approaches allows for recovering the inspiration of the french and american revolutions (kumm, 2013: 611; kumm, 2009: 315; benhabib, 2016: 134-137). finally, it is sustained that the idea of “we the people” involves an egalitarian promise of self-government that, 15 following diggelman and altwicker’s reflections on their classifications of the justification strategies of global constitutionalism, here we are discussing the strategies that they called “ethic-pragmatic” (diggelman & altwicker, 2008: 639). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 83 in the current globalization conditions, needs to have a cosmopolitan turn (kumm, 2013; 2009). by connecting these two concepts, it is sustained that “the constitutional legitimacy of national law depends, in part, on being adequately integrated into an appropriately structured international legal system. and the legitimacy of the international legal system depends, in part, on states having an adequate constitutional structure” (kumm, 2013, p. 612). (iv) heir of legal pacificism. finally, as a characteristic, it is important to highlight the connection between cosmopolitan constitutionalism and legal pacificism (scholars as kant, bobbio, kelsen) (habermas, 2006; ferrajoli, 2011). despite the differences regarding the objective of the project (not only peace but also human rights), the philosophical foundations of cosmopolitan constitutionalism lead us to kant and his reflections on cosmopolitan law, and through the path that was then developed by kelsen and bobbio. this is an important characteristic because it allows us to situate this project far away from sociological or moral perspectives. cosmopolitan constitutionalism is, above all, a legal project. 3. legal philosophy and challenges from the perspective of cosmopolitan constitutionalism when we analyse the practical possibilities of the project, we are confronted with a variety of problems regarding, among others, the characteristics of law in globalization. to give an account of the possibilities of cosmopolitan constitutionalism, i propose analysing whether this is a plausible proposal considering the distinctive features of law in the transnational sphere. constitutionalism, as a political project, was built having as a frame of reference a theory of law and democracy based on the state as the central political unit. however, the characteristics of the transnational landscape require these concepts to be adapted or revisited. one of the major challenges that this kind of theory must confront is to be developed with a robust legal philosophical reflection. as danilo solo points out, these theories are arrived at without any substantial political or legal philosophical reflection, and are not comparable with the effort that was shown in the philosophical reflections in the development of the modern and liberal state (zolo, 2005). so, a discourse such as cosmopolitan constitutionalism has to reflect on whether it theses has to be accompanied by re-formulations of the classic debates of legal philosophy. a productive path to follow regarding these issues is to analyse three major debates of legal philosophy: i) law and morality. the tension between morality and law is critical in this context because cosmopolitan constitutionalism is a concept based on the universality of human rights, which is an affirmation in which its content has a robust axiological commitment. so, the question raised is whether it is possible to have a legal cosmopolitanism divorced from morality in the context of the reflections on legal philosophy. legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 84 ii) law and power. the traditional debate about the relation of law and power in the international sphere has been represented by the dispute between realists and legal pacifists. this debate has to be updated, since the power that has to be regulated by the cosmopolitan project is wild and diffuse and is no longer held by sovereign states. so, we can ask whether it possible within the cosmopolitan project to design a model that is able to coordinate and regulate power with these characteristics. iii) law and unity. in recent years, pluralism has arisen as a third alternative in the traditional debate between monism and dualism. in the light of cosmopolitan constitutionalism, it is necessary to revisit the terms of this debate to ask which perspective is adequate for developing a cosmopolitan comprehension of law. a relevant question is: is it possible to develop a cosmopolitan understanding of the rule of recognition? the analysis of all of these elements leads us to ask ourselves whether what we need is to develop a legal philosophy built from a transnational perspective; a philosophy of law that transcends the dichotomy between the international and national orders and that comprehends the law as a phenomenon that also occurs in the interaction between the different legal systems (turégano, 2017: 226). a perspective such as this one, as a first approximation, is an interesting approach that provides cosmopolitan constitutionalism with a solid foundation from the perspective of the philosophy of law. 3.1. law and morality from the perspective of cosmopolitan constitutionalism, if we want to enter into the law and morality debate, we must first determine which aspects or dimensions of the discussion have an impact on, or are relevant to cosmopolitan constitutionalism. it is a political project based on rights, which are norms with a strong axiological commitment (values such as liberty, equality, and solidarity), and considering this content and the language that is used to talk about rights, this leads us to pay attention to their moral characteristics (mazzarese, 2004: 664-665). also, in cosmopolitan constitutionalism, the universality of human rights norms is central. this is the idea that values associated with rights belong to all of humanity as a minimum and without exception. therefore, the axiological commitment and universality put the law and morality debate within the field of human rights. as a result, this debate in the context of cosmopolitan constitutionalism is not so much related to the classic debates of the philosophy of law (natural law and positivism) or moral philosophy (theories of justice). this is because the legal norms evidence moral values, which are the foundation of human rights, and this is one of the fields where the intersection between law and morality is produced (ansuátegui, 2013: 256-257). so, to talk about the influence of this debate in our field leads us to highlight that the dimensions of these two normative orders (law and morality) are related to the foundations of human rights. in this context, there are difficult questions that cosmopolitan constitutionalism must respond to in order to be a coherent project. for example, in the constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 85 context of cosmopolitan constitutionalism, we must ask whether we need to have either a commitment to moral universalism (and if we do, in which way are we to understand it?), or on the contrary, a commitment in which it is only possible to talk about universality in legal terms (and again, if so, in which way are we to understand legal universality?). putting these perspectives in dialogue highlights that there has to be a comprehension of human rights and universality, framing the cosmopolitan constitutionalism discourse. (a) habermas and the janus face of human rights to habermas, law is a mediation platform (hinge) between the pretensions of validity within the morality discourse and the facticity of the political discourse (habermas, 1996). there does not exist any relation of superiority between the political, legal, and moral planes. the three are related and connected through the law, and share as a basis the communicative reason which operates through the discourse principle. from this perspective, when habermas analyses the relations between law and morality, we must be aware that they have a complementary relationship. he sustains that law and morality have a relationship that does not imply an assumption of the natural law, because morality is not above the law (as the natural law suggests); instead it migrates inside the law.16 within this comprehension, it is possible to have a better understating of his concept of human rights and the ideas about law and morality related to his understanding of universality. even though habermas develops the majority of his reflections having as a frame of reference constitutional democracies, in recent years his reflections have been oriented towards the analysis of rights beyond the state. habermas’ concept of human rights makes it clear that within the concept, the relation between law and morality is present because, as he says, human rights are like “the face of janus”, because they look at the same time to law and morality. for that matter, human rights have two dimensions. the hinge between law and morality within the human rights concept is human dignity: “the idea of human dignity is the conceptual hinge that connects the morality of equal respect for everyone with positive law and democratic lawmaking in such a way that their interplay could give rise to a political order founded upon human rights” (habermas, 2010: 269). human dignity has a revealing function because historical experience continually shows us different violations of human dignity, and that allows us to see new traits emerging that actualize our comprehension of human dignity. this leads us to the construction of new fundamental rights or new interpretations of their content. these references to human dignity, however, differ from the rationalistic-natural law tradition (in which the foundations of human dignity are a pre-political conception of human nature), because they do not present human dignity as an immanent reality. 16 law has a certain amount of autonomy because the pretensions of validity within discourse theory are not exclusively related to morality, because within the law there are also pragmatic reasons. also, we can see these differences from a functional perspective because law complements morality in respect to personal conflicts, but also has a dimension that is related to the organization of political power (velasco, 2000: 99). legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 86 the moral character of human rights allows us to justify their expansive force, and that is why their validity transcends the national legal orders. the expansive force of human rights is founded neither on their legal form, nor from a justificatory strategy based on the reality of the codependence of global society (as the pragmatic or political strategies would do, such as, for example, ferrajoli). instead, habermas bases the expansion on morality (human dignity): “finally, the origin of human rights in the moral notion of human dignity explains the explosive political force of a concrete utopia” (habermas, 2010: 466). however, the universality is not only justified because of the expansive force of the morality discourse based on human dignity, it is also justified because of the basis of habermas’ concept of human rights: the discourse principle. this is a principle that can operate in any political community that has as an aspiration legitimacy under the law, and it can be national, regional or global (flynn, 2003: 454). if human rights are conditional upon the exercise of communicative freedom and participation in self-determination discourses, considerations such as nationality, religion, ethnicity and race are not valid reasons to deny participation in these discourses. the rational-impartial reasoning principle which is the basis of moral cosmopolitanism, in habermas’ case, is shown in the requirement for the participation of all people in the public sphere and in the development of a cosmopolitan order that allows that kind of dialogue. (b) ferrajoli and legal positivist relativism unlike habermas, for ferrajoli universality in the context of cosmopolitan constitutionalism can only be understood in legal terms. this is explained by his concept of fundamental rights and his ethical positions. ferrajoli has a formal definition of fundamental rights. it means that he considers fundamental rights as the rights that belong to all people, understanding “right” as a “subjective right” (an expectation attached to a legal norm) (ferrajoli, 2009: 19). the characterization of this concept as a “formal” concept means that the concept does not describe the content of rights or prescribe their content; instead, it seeks only to describe what fundamental rights are (ferrajoli, 2011: 685). even though ferrajoli has a formal concept of fundamental rights, that does not imply that he ignores the fact that fundamental rights are a product of political and moral developments. it only means that he recognizes that the transformation of political and moral demands into legal norms does not indicate that they are accepted by all and does not impose their moral acceptance or the sharing of their values (ferrajoli, 2011: 14). that is why he provides a fundamental rights concept that allows us to understand it with no moral reference to identify it. considering these reflections, for ferrajoli to say that the human rights doctrine should be assumed universally in moral terms is an anti-liberal thesis. it is precisely because not everyone morally shares human rights that they are stipulated as guaranteed to all. this is the true sense in which we have to understand universality. the foundations constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 87 of fundamental rights can be found in the equality that they prescribe; not because they are shared by all, but instead because they are guaranteed to all (ferrajoli, 2011: 549). another element that allows us to understand the universality concept in ferrajoli’s ideas is his relativist position regarding morality. ferrajoli raises the idea that this is a metaethics and epistemology question, which is at the base of the debate regarding law and morality. his position implies that the truth or falsehood of moral affirmations cannot be established with absolute certainty, and that is why he states that his position is the only one that is compatible with tolerance. (c) legal cosmopolitanism and moral cosmopolitanism, separate paths? when walker analyses habermas’s cosmopolitan proposal, he sustains that cosmopolitans are often confronted by serious tensions that are illustrated by the difficulty in reconciling the relationships between the institutional, moral, and social dimensions of cosmopolitanism (walker, 2005: 5). these tensions are manifested by the difficulty in defending universal moral aspirations considering cultural diversity, and how to institutionalize universality through legal structures that have as an objective to be efficient in regard to the cosmopolitan aspirations. through the analysis of these cosmopolitan proposals and how they propose to articulate the different dimensions, it is possible to see the roots of the problems. considering the struggle of reconciling the different dimensions, we have in the contemporary debate different options. some have renounced the efforts of reconciliation and justification and only use the cosmopolitan language to impose their values unilaterally (the false cosmopolitanism of the us “pax americana”). others do not attempt ambitious projects from the justificatory point of view. instead, they offer limited conceptions about human rights (the pragmatics, such as (ignatieff, 2001)). finally, others have as an option disregarded the morality in the justificatory discourse to present alternatives that are compatible with the neutrality demanded by cultural diversity (like ferrajoli). so the tensions that all cosmopolitans have to face are present in the answers that ferrajoli and habermas provide. concerning ferrajoli’s arguments, it is possible to sustain that the construction of a model so exigent as cosmopolitan constitutionalism is, it cannot be separated from moral universalism (benhabib, 2011:64). if we do not recognize at least the communicative freedom of the other, the justificatory mission has no meaning. that is why the utilitarianism of ferrajoli is insufficient as a basis for a cosmopolitan proposal. to be coherent, these proposals require a kind of minimal objectivism. this means that it has to assume a comprehension of equality and reciprocity, which allows us to design a model based on rights. even if we assume the utilitarian strategy as a basis for cosmopolitan constitutionalism it is because, as a minimum, we consider that there is something valuable to preserve under certain prescriptions.17 the discourse cannot escape from the difficulties raised when we interpret the basis of universality in moral terms. 17 as ansuátegui points out, the rights discourse is a discourse that has the individual as a central protagonist. his value is presupposed not because of his belonging to a specific group, ethnic group, ideology or legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 88 for that reason, habermas’ perspective is more adequate. the way that these arguments are presented in justificatory terms in his comprehension of cosmopolitan constitutionalism highlights that moral universalism is required and implies, as a minimum, the recognition of communicative freedom (that in habermas’s perspective historically is assumed to be dignity). this concept is also developed by authors such as benhabib and forst, under different titles such as “the right to have rights”18 and the “basic right of justification”.19 we can characterize the nucleus of these conceptions as constructivist (based on the discourse ethics), which sustains as a basic principle that there is a right to accept or reject the reasons presented by the speaker, and implies respect for communicative freedom.20 whether by the “right to have rights” or by the “basic right of justification” formula, they are both expressions of minimal moral objectivism. it is objective because it presupposes the existence of criteria that allow us to debate by using reasons and determine the correctness of the arguments. it is minimally objectivist when it is applied to our debate because the shape that the rights might take is determined discursively by the affected; it is not implied that it is the better or superior version of a concrete moral theory (baynes, 2009: 18). this minimal objectivism does not imply moral absolutism (as ferrajoli sustains); it only entails that “any legal and political justification of human rights, that is, the project of legal universalism, presupposes recourse to justificatory universalism. the task of justification, in turn, cannot proceed without the acknowledgment of the communicative freedom of the other” (benhabib, 2011: 64). a perspective such as this one has different advantages: (i) it is based on minimal objectivism, so moral development and the recognition of the historical dimension of human dignity are central ideas. therefore, universalism is not based on the deep structure of the psyche or mind; instead, it is based on historical and moral experiences. there is a deep normative perspective in the history of the struggle for rights and such a normative perspective is related to the basic idea that people have the right to give and demand reasons (forst, 2010: 719). the existence of this normative account allows us to sustain that rights cannot be used to defend indiscriminate pretensions. religion, but instead because of his moral value and his demand to be recognized by others (ansuátegui, 2013b: 112). 18 the author actualizes arendt’s (1973) concept, but here it has a different meaning (not statist) (benhabib, 2011). 19 in fost’s version, this right is not associated with any specific metaphysical conception of human nature; instead it is a fundamental moral demand that no culture or society can deny. it is the unconditioned demand to be respected as someone to whom reasons about actions, rules, or structures should be provided (forst, 2010). 20 habermas’ and also forst and benbabib’s perspectives are similar but present some subtle differences. however, they all have related and common aspects that allow us to characterize these positions as a shared view. a comparison between these three authors can be found in baynes (2009). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 89 (ii) a conception like this one does not have a detailed list of what rights should be listed to protect communicative freedom. it is “justificatory minimalism”, not a minimalism of contents (cohen: 2004, 192). a justificatory minimalism allows us to sustain that, within the context of cosmopolitan constitutionalism, there are certain decisions that cannot be justified or some limits that we cannot cross. however, this is not an excuse to state that we cannot arrive at greater agreements in the international plane through democratic dialogue, social demands and contextualization. (iii) this perspective does not imply the use of positivism or natural law as explicative paradigms. the universality of human rights as the basis for the cosmopolitan perspective incorporates the inherent tension between law and morality, and that is why it transcends this division (forst, 1999, 49). this minimal objectivism does not indicate a commitment to natural law because there does not exist a commitment to transcendental truth that is above the law. it only recognizes that there are certain matters that we can discuss rationally and regarding which we can argue about their correctness (or not) if the conditions of the discourse are fulfilled. it admits that, within this debate, there is a tension with human rights produced by their pretensions of validity, which transcend the context and their specificities. however, it is a tension that can be relieved when we sustain that there is a relation of codependence between the human rights concept and democracy. (iv) finally, this perspective is compatible with the demands of cultural integrity because no culture can deny this minimum as an external imposition. as forst sustains, the demands of cultural integrity presuppose the affirmation of the existence of the right to justification (forst, 1999: 39). so, if we return to the questions raised in this debate, it is possible to sustain that legal cosmopolitanism cannot be separated from a cosmopolitan moral perspective, even though it is minimal. this affirmation concerning the classic debates of legal philosophy suggests that we have to rethink the division between law and morality in absolute terms, because if we recognize that human rights are at the centre of the cosmopolitan proposal, then this indicates an assumption that there is an inherent tension within the project. therefore, the objective of legal philosophy should not be to deny the tension or to overlap one dimension with the other. instead, it must recognize the tension, value it, and above all, try to negotiate the interdependence between these two dimensions through the application of the universal in concrete cultural contexts. 3.2. law and power another aspect that is relevant to the debates about the philosophy of law, and particularly constitutionalism, is the relations between law and power. this is a central aspect of cosmopolitan constitutionalism because this is a proposal about how to articulate this relationship beyond the state. this debate applied to the international field was framed for many years by the dispute between legal pacifists and realists, and today it is concerned with the criticism of legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 90 the capacity of treaties to bind and guide state conduct regarding human rights obligations.21 however, from the constitutional and cosmopolitan perspective there emerges an additional debate. the power that is supposed to be regulated and coordinated with the law differs from the power that was the subject of study by traditional theory. it is no longer a power centred on the state, and it is not only political power. it is a diffuse power and it is also concentrated in big corporations and characterized as a “wild” power.22 so, in this context, it is important to ask ourselves how this power configuration affects the philosophy of law (in general) and constitutionalism (in particular). if constitutionalism is a legal strategy to put limits on power, it is necessary to determine which power we are referring to when the debate is situated beyond state margins, and how we identify such power and limit it. as we will see in the following part, even though there are a variety of answers, there is a standard or shared view regarding the characterization of power and the problems related to it in the context of globalization. these characteristics are:1) it is shared power, 2) it is diffuse and wild, and 3) it is affected by an inverse hierarchy. (i) our first topic highlights the existence of a transfer or loss of power from the states to supra-national spheres. the states are no longer the centre of normative productions, nor are they the centre of political decisions (twining, 2005). sometimes, this process is produced in an ordered way (such as the assignment of sovereignty by the state, which is produced by the political organization in supra-national spheres through treaties), and in other cases, it is part of a non-regulated or non-systematic process of sovereignty loss (for example, the movement of political and governmental functions to the market). (ii) the second topic emphasizes the diffuse character of power. in contrast to the classic constitutional model, which identifies power with political power, in the globalization context, there is a mixture of public and private power that is not easily recognizable and is also not susceptible to accountability. habermas also points out that we can see the power blurred in a variety of communication and negotiation channels in spaces such as the g-20 or the g-8 (habermas, 2015: 51). it is also a wild power because it has an absolute sovereignty, and it is impersonal, anonymous, invisible, and not responsible (ferrajoli, 2018a: 18). (iii) finally, the last element that describes power beyond the state is predominantly its economic shape. as ferrajoli points out, we are in front of an inverse hierarchy of power, because now it is no longer the governmental institutions that order the economy and financial capital; instead, it is the economic and financial power that imposes on governments the defence of their interests and their rules (ferrajoli, 2018a: 19) 21 in the contemporary debate, the positions of posner (2014) and simmons (2009; 2012) are relevant. the principal topic is based on how effective the system is at limiting power and the law’s capacity to be coercive beyond the state. regarding coercion, it is interesting to see the “outcasting” proposal developed by hathaway and shapiro (2011). 22 the expression “wild power” refers to the unrestricted liberty and lawlessness that kant describes, a power that is not subject to limits and rules, a power that is characteristic of the natural state because of the lack of legal limits. this expression is used in the context of our debate by ferrajoli (2011:45). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 91 koskenniemi describes the effects of this shape of power on law, by indicating that it has three main consequences: “deformalization” (the law is developed functionally following experts directives), “fragmentation” (it is no longer unified, and there is normative dispersion), and “empire” (the law is developed in relation to the dominant interest, which is now economics). when these characteristics of law are expressed in the language of power, we can see that we are abandoning the language of law by “regulation”, the government by “governance”, and responsibility by “compliance” (koskenniemi, 2007a: 13-14).23 from the constitutional perspective, we are alerted to the necessity to discard the view that the state is the only agent respect of which the constitutional project can fulfill its promises. in fact, the constitutional project can no longer keep its goals if it does not change its comprehension of power. to use the territoriality principle to determine its frame would now be unjust. to divide the political space along territorial lines would indicate that we renounce to the necessity for accountability from extra-territorial powers (fraser, 2008: 12-47). to abandon the constitutional limits is not only a danger to law, it is also a threat to freedom and the survival of democracy. considering this analysis, the cosmopolitan perspective proposes that, within the globalization context, it is necessary to transform the concept of power towards a comprehension that allows for talking about control. that is why we have to work it in a broader sense. we need to understand power as the expression of domination, which implies a danger to freedom, and also that power can operate under, beyond and parallel to the state. however, the underlying problem for the philosophy of law that this characterization of power implies is an abdication to globalization. the theory has incorporated globalization as a natural phenomenon. legal theory has accepted globalization as prescriptive,24 and from this perspective, the efforts have been focused on the comprehension of soft-law and the fragmentation phenomenon (klabbers, 2009b:94). the problem is that this analysis does not criticize globalization from the philosophy of law perspective, and it does not ask whether these concepts and phenomena suppose a threat to the rule of law25 and democracy.26 this tension between the descriptive and the prescriptive elements can lead us to the classical division that koskenniemi highlighted in his book, “from apology to utopia” (koskenniemi, 2005). he analyses the structure of the legal arguments, stressing that 23 this phenomenon is also characterized by koskenniemi as an example of the “fate” of international law because of the relevance of other normative orders that are competing with and replacing the law: see koskenniemi (2007b). 24 as fariñas points out, globalization is, above all, a descriptive concept about certain historical developments of social construction. as a prescriptive and normative concept, it refers to a certain political and economic strategy (fariñas, 2012: 112-113). 25 for problems related to soft law and rule of law, see the criticism of laporta (2014: 41-82) and klabbers (2009b). 26 peters raises issues about transparency and accountability that are related to soft-law (peters, 2006: 593). legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 92 within the international debate, we can find two positions: an apology to power (which is descriptive of the various relations of power and politics), and prescriptive discourses that lack normative effectivity (utopia). between these two arguments we can find a variety of academic positions. even though cosmopolitan constitutionalism is an heir of the second approach of this dualism (because it is an heir of legal pacifism), it also considers the reality of the international sphere, which incorporates international treaties, international courts and the complex normative structure that operates as a foundation of its arguments. that is why cosmopolitan constitutionalism defines itself as a “realistic utopia”. on this point ferrajoli adds further detail. he highlights that the real opposition is not between realism and utopias, but between realism in the short and long terms. the truly unrealistic hypothesis is to think that reality, as it is now (without limits and wild), can be sustained. he argues that there are no alternatives to law (ferrajoli, 2011: 585). so, the constitutional perspective attempts to claim the critical dimension of the philosophy of law by studying the problems we have described with a critical approach. by confronting the surrender of the theory, scholars like habermas and ferrajoli propose different strategic attempts to put legal limits on this wild power. for ferrajoli, the strategy is based on expanding the concept of power as demanded by the constitutional project. it does this by proposing a “private law constitutionalism”. to argue for this concept, he presents two assertions: a) the formal character of the constitutional paradigm, and b) a critique of the traditional concepts of rights and power. ferrajoli can talk about the expansion of the constitutional paradigm for private power because he sustains that this paradigm is formal and has a logical syntax27 that can be fulfilled with any content and expanded to any power: not only public but also private, and not only based on the state, but also beyond it (ferrajoli, 2018a: 27). the author also argues that it is possible to expand the paradigm of power if we demystify some concepts from classical liberalism that are guilty of lacking legal limits on private power. he argues that there has been confusion when we identify “rights-freedom” with “rights-power”. the first is related to the exercise of autonomy and the second relates to powers related to property. if “rights-power” is exercised by acts that produce effects on the legal sphere of others, then they are structurally different to “rights-freedom”. so, if “rights-power” is the exercise of power, then it has to be subjected to limits (ferrajoli, 2018a: 35-36). these two arguments allow ferrajoli to propose a private law constitutionalism and also to sustain the importance of putting limits on financial and transnational corporate powers, which are a threat to rights and freedom. 27 for more on the logical form of the constitutional paradigm in ferrajoli’s approach, see ferrajoli (2018b). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 93 for habermas, the rule of law has been a civilizing conquest in relation to power because it controls the arbitrariness and violence of political domination. a continuation of this process can be identified in the legal form of international relations. from the power perspective, this has produced a “dissolution of the decisionistic substance of the power involved in the exercise of political authority”, and from the perspective of law, it has produced a “transformation of the medium of law” (habermas, 2015: 52). that is why, for habermas, in contrast to ferrajoli, we are not only facing a change in the relations between public and private power, we are also facing new ways of exercising public power. this has implied a change in the elements of modern law (habermas, 2015: 52). these elements are legitimacy and coercion. in the international field and in the european union, it has been shown that power changing has generated an imbalance of these two elements. the law is applied even when states maintain a monopoly over the legitimate use of force. there has been a recognition of the validity of law without coercion. for habermas, this phenomenon implies an admission of a flexible comprehension of law (habermas, 2015: 54). the centre of the problem has to be focused on analysing how the concept of law has changed due to changes to power. so, it is not sufficient to only reflect on the application of the constitutional paradigm and its expansion. for habermas, these kinds of reflections cannot be separated from a deeper analysis of the legitimacy of norms that put limits on power. in fact, if constitutionalism is above all a project about the legitimacy of power and we want to use the language of constitutionalism, we cannot dismiss within the analysis the questions regarding why the norms are followed and the legitimacy of the norms themselves (habermas, 2015: 55). what we have seen in the international field is a rationalization of domination, but the rule of law, as a civilizing conquest, is also to act through the law, which implies that the law is democratic (habermas, 2015: 55). these reflections put habermas’ perspective within the context of the debates in political philosophy, where he proposes that the elements of the discourse theory have to be used to analyse the democratic deficit of international organizations (it is a discourse about transnational democracy)(habermas, 2008). both perspectives are diverse; however they both make a strong defence regarding the significance of law in the international sphere, and they both develop a critical perspective towards globalization. they are not conflicting outlooks, and both highlight essential elements that allow us to redefine the relationship between law and power in cosmopolitan terms. both perspectives also alert us about the necessity of extending our concept of power and analyse how the elements of law are being transformed. considering these reflections, we can establish that the principal challenge to the philosophy of law is overcoming the divergence that exists when we analyse the expansion of global power, and compare that expansion with law (this reflection is still based on a state-level). the divergence causes a threat to the survival of law. in fact, cosmopolitan constitutionalism is a project that attempts to recover the historical objective of constitutionalism as a legal project (realization of the autonomy legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 94 principle), by giving it particular significance in our historical context: the generation of spaces of freedom and equality for those that cannot enjoy freedom and equality, because currently their conditions of life are not dependent on the state that they live in, but instead they depend on the political and economic forces beyond the state. if we put our hope in other alternatives rather than the cosmopolitan constitutionalism model, we deprive individuals of the capacity of being autonomous citizens. if we renounce constitutionalism in the international sphere, we abandon individuals into an incontrollable future of anonymous networks of power (habermas, 1998: 124). the important lesson that we learn is that overcoming the divergence cannot be unlinked (if we use the constitutional perspective) from answers about the “how”, the “who” and the “what” in the international sphere (fraser, 2008:15). as la torre28 points out, cosmopolitan constitutionalism requires satisfying two demands: the generation of a global civil society with participation in the global public sphere, and the provision of elements that explain the practice of international organizations and law from the transnational perspective (la torre, 2016: 10). 3.3. law and unity finally, there is a third debate that has occupied the philosophy of law, and that, within the context of our argument, has to be revisited. traditionally it is sustained, concerning the legal order, its unity and coherence as characteristics. however, the transformations of power and law have as a consequence the co-existence of multiple legalities: national, supranational, international and cosmopolitan. that is why it has been sustained that the current scenario is characterized, among others, by fragmentation.29 within this context, it is critical to ask whether it is possible to still talk about the law in terms of unity. is it compatible with a constitutional approach such as a fragmented scenario? is cosmopolitan constitutionalism capable of explaining and incorporating this reality? over the past decades, two paradigms have emerged to explain the relationship between different legal orders within the philosophy of international law: monism and dualism.30 recently, considering the fragmentation scenario, a third approach has emerged: pluralism.31 within this context, we will analyse whether monism, dualism or pluralism are sufficient to explain law dynamics beyond the state that have constitutional characteristics. a plausible answer to these problems would give the cosmopolitan 28 however it is important to highlight that he is sceptical about the possibility. 29 for more on the fragmentation of international law see koskenniemi’s report for the international law commission in 2006 (koskenniemi, 2006). for an analysis of the current changes in law due to globalization see catá backer (2012) and twining (2005). 30 historically, monism has been associated with the positions of kelsen, verdross, lauterpach and dualism with triepel and anzilotti. 31 pluralism is associated with different concepts and scholars. a general picture about the different interpretations of this concept can be found in the research of avbelj y komárek (2012) and schiff berman (2016). constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 95 constitutionalism project sufficient tools to be emancipated from strong pluralism and state-based perspectives regarding law (turégano: 2017, 225). a first matter is to dismiss dualism as a possibility because its theoretical basis is incompatible with the cosmopolitan paradigm, and also it is not an adequate description of the functioning of an international legal system. contemporarily, dualism has incorporated the shape of democratic statism (kumm, 2012: 47-54). for this approach only within the state can we find the conditions to generate valid norms and that is why only the state can determine the application of norms that belong to other legal orders (so, it can be sustained that within the democratic turn dualism has become statist monism).32 this affirmation is problematic for the cosmopolitan discourse because it does not recognize sovereignty as a shared enterprise that has as a basis the universality of human rights. additionally, this perspective is not sufficient to explain the current interaction between international, national and cosmopolitan norms. these spheres of legality do not work in isolation; they interact with and complement each other. the recognition of the existence of different sources of legality does not mean that we can ignore the fact that these norms are related. so, from the perspective of cosmopolitan constitutionalism, we still have two possibilities: monism and pluralism. these positions are sustained by habermas and ferrajoli, respectively. in ferrajoli’s approach, this explanation is based on a polycentric view of law. he emphasizes that considering the current legality, it is possible to establish the existence of a pluralism, understanding it as a complex and diverse network of different legalities and legal institutions within which there are different scales of integration (ferrajoli, 2011: 475). it is not a radical pluralism (as, for example, (krisch, 2011)), because in his approach the different legal orders are integrated in diverse kinds of federalism. that is why, for ferrajoli, neither monism nor dualism has enough force to explain the current developments of international law. the figure that appropriately explains the shape of legality is a grid (ferrajoli, 2011: 474).33 within this context the question emerges of how ferrajoli tries to make this vision of law compatible and at the same time sustain a constitutional paradigm. he sustains that it is possible because we must reserve the constitution as an autonomous and supra ordered space, which implies, for example, the use of the better protection principle of human rights as an adequate principle to give coherence and unity to the system (ferrajoli, 2011: 541). in habermas’ perspective, we find an attempt to explain the functioning of norms through the analysis of the movement of the different elements of law. the movement is towards a recognition of the legitimacy of the authority in the supranational sphere, even when states maintain a monopoly over the legitimate use of force. considering this 32 kumm points out that “as liberal constitutional democracies were increasingly constrained perhaps not by a weberian iron cage but at least a strong web of transnational legal norms, statism took a democratic turn: now the divide between national law and international law was justified with reference to democratic constitutional theory” (kumm, 2011: 48). 33 it is common in the literature to find a description of the global landscape as a “net” or “grid” (losano, 2005), which dismisses the traditional “pyramid” image of the legal world. legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 96 movement, habermas argues that there is a tendency to equate the value of national and international law. this is an approach towards a monist conception of law (albeit at a snail’s pace), as kelsen has proposed (habermas, 2015: 54). both perspectives generate doubts and have been questioned. these doubts must move us to reflect on which is the better description for the scenario and also, from a normative perspective, which approach provides clear criteria to resolve the problems of interaction. there are scholars who argue that constitutionalism cannot be separated from a monist perspective. they sustain that it is not possible to defend constitutional supremacy and rigidity without defending the idea of a legal order that is unified and hierarchical (somek, 2012; puppo, 2015) and that is why ferrajoli’s pluralism is inconsistent with a constitutional approach. additionally ferrajoli’s pluralism is limited to the factual verification of the diversity of legalities and does not provide normative criteria to resolve conflicts that allow us to decide what to do when we are faced with multiple “deciding spheres” (except for the vague idea of the better protection principle) (bayón, 2013). for that matter, his perspective does not bring any new elements to the philosophy of law in this specific regard because his pluralism does not provide a legal and normative response to interconnection. also, monism does not explain the reality of interaction appropriately and offers a static view of the claims of legal authority. the transnational sphere is characterized as having within it a complex network of authority claims (roughan, 2013; turégano, 2017: 226). additionally, a monist perspective does not allow for an effective dialogue between the different claims because it endorses a legal hegemony that is incompatible with a cosmopolitan perspective. moreover, the static view based on hierarchy leaves out the fact that within the cosmopolitan constitutional perspective, other criteria should be considered, for example, the effectiveness of human rights protection. a good example of the problems involved in a response based solely on hierarchy as a criteria can be seen in the “kadi case”.34 finally, both perspectives miss the importance of considering the way in which cosmopolitan norms are created. cosmopolitan norms are norms produced by the interaction of a variety of legal authorities (norms that are framed by national and international contents). their cosmopolitan nature emerges in the overlapping, in the complexity of the interaction. truly cosmopolitan is what is produced by the relation between different authority claims, implying a construction of norms with a complex content that flows over the borders.35 however, both habermas and ferrajoli are still 34 ecj. judgment of the court (grand chamber) of 3 september 2008.yassin abdullah kadi and al barakaat international foundation v council of the european union and commission of the european communities. 35 a similar version of this proposal is sustained by benhabib using the concept “democratic iterations” to describe the way that human rights norms are built in different cultural contexts. from her perspective, human rights norms have a nucleus that is being continuously fulfilled with different legal sources (national and supranational). in this way norms are emerging with complex content (benhabib, 2011). another account constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 97 focused on a vision of law where the national and international spheres are separated and, even when they describe the interaction, they do not explain the complexity of the legal reality (they still are in the “black box model” of legality),36 which involves above all legal porosity understood as legal interaction (brunnée, 2010). therefore, from the perspective of the philosophy of law, it is necessary to have a normative perspective that explains the reality of cosmopolitan norms and, at the same time, provides criteria to recognize such norms37 and for resolving conflicts between differing claims. as bayón points out (2013: 86-87), the real problem of constitutionalism in the global sphere is that there are relations between overlapping orders without a clear rule about how to achieve coordination between them. using the terms of hart, it is sustained that what we are missing is a theoretical construction of a rule of recognition in cosmopolitan terms. so, the question is how to build a complex rule of coherent and general principles about how to distribute the legitimate authority that is also based on the current legal practice. this perspective assumes a constructivist vision of law that recognizes the existence of dialogues between legal actors in the transnational scene, which implies a common understanding regarding the features of law. this shared understanding is framed by constitutional principles (kleinlein, 2012b). at this point, we can see that the normative theory and legal theory are connected because “the application and specification of valid law requires – especially in hard cases – normative reasoning, that is, a type of reasoning which is guided by those principles that confer legitimacy to the legal system as a whole” (habermas, 2013b). even though the construction of such a rule is beyond the objectives of this paper, we can enumerate theoretical tools that can be useful to move towards this objective. concerning the construction of cosmopolitan norms, perspectives such as “interlegality” and “transnational law”38 capture more completely the reality of cosmopolitan norms because they put value on the existence of a creative potential within the law that is given by the interaction between different spheres of legality that influence each other, that is, “the unavoidable interconnectedness of legalities” (palombella, 2019: 366). this perspective, in contrast to some kinds of pluralism, does not miss the internal point of view because it puts value on the relevance of the normative criteria that are responsible for sustaining the notion of legal order and incorporates a minimal and shared concept of law that allows the dialogue (günther, 2008; taekema, 2019). inter-legality is of cosmopolitan norms understood as the result of interaction can be found in neves (2017: 294), regarding the concept of “transversal network”, and in walker (2008: 378), referring to “in-between places” norms. 36 the “black-box model” conceives different levels of law as self-contained regimes (tuori, 2015: 37). 37 considering the “rule of law” element within the constitutional paradigm, it is important to develop criteria to distinguish law from non-law (klabbers, 2009b). also it is important regarding the internal point of view of legal officials (garcía pascual, 2018). 38 even though inter-legality is a concept that emerges within sociological studies and with descriptive purposes (nickel, 2005), recently it has been used in legal theory with normative applications; see for example turégano (2017) and the most recent book coordinated by palombella & klabbers (2019). moreover, it has to be considered that inter-legality does not necessarily endorse a constitutional perspective. legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 98 compatible with cosmopolitan constitutionalism because it includes the characteristics of cosmopolitan norms and it is not incompatible with developing substantive criteria regarding the legitimacy of law under a constitutional perspective. moreover, it does not reduce complexity as monism does, but instead allows for the production of new institutions that will be able to include those interactions (turégano, 2017: 236). although habermas endorses monism, it is important to highlight that he claims that this is an initial approximation and he endorses it because he links pluralism with contextualism, which does not enable us to “explain how international courts with justices from different legal traditions ever come to agree on decisions for the same or similar reasons”(habermas, 2013b). however, a possible path to follow is to make connections between his discourse theory and the inter-legality perspective. in fact, from habermas’ perspective, it is possible to establish the conditions for participation in the discourse, which enables only models for the incorporation of diversity and, at the same time, remains open to a reflexive dialogue in relation to norms. both elements allow for a continuous conversation within the law that is capable of overcoming the problems of fragmentation (turégano: 2017, 258). from this point of view it is possible to design a research agenda with the objective of determining whether habermas’ legal philosophy can contribute to the strength of the inter-legality approach. in relation to developing and constructing criteria for a rule of recognition in cosmopolitan terms, the key within this context is determining which is the better interpretation of the relationship between the many orders, considering the demands of constitutionalism and legal practice (kumm, 2005: 287; klabbers, 2009b). at this point the normative perspective emerges and connects with the cosmopolitan discourse. considering the elements we have described as a central part of the cosmopolitan discourse, it is possible to establish that -as a minimumthis complex rule implies the identification of procedural and substantive criteria about how legitimate authority should be distributed (kumm, 2009: 272). from the procedural perspective, it will be important to consider the conditions of the discourse and the democratic demands, and from the substantive perspective it will be necessary to consider the better protection principle regarding human rights, among others. if it is possible to sustain the existence of such criteria, it is possible to keep the promise of unity, but it must be understood as convergence within dispersion and not as “legal monarchy”. the existence of these criteria makes it possible to sustain coherence and a system as ideas within the transnational scenario. the difference is that these criteria are based not only on a formal hierarchy, although they are based on an interactional conception of the legal phenomena. 4. conclusion cosmopolitan constitutionalism is an especially demanding approach for legal philosophy. it requires us to redefine some traditional theses and to adapt them to the new features of the international scenario, without renouncing its basic commitment to human rights, democracy and rule of law. it calls for a substantial effort from those constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 99 who sustain this idea because it challenges our traditional comprehension of power, identification of law and its relations with morality. in the academic field, as we had seen, some perspectives are being developed to comprehend this reconfiguration of the global public sphere. however, we do not yet have a holistic answer to all of these challenges. that is why sometimes we do not see a coherent and profound discourse about the key questions that legal philosophy must achieve. after analysing habermas’ and ferrajoli’s perspectives, it is possible to establish some elements that challenge the traditional discourse and provide us with some clues to reconstruct a legal philosophy from a transnational approach. even though it is a complex, dynamic, and possibly inexorable task (considering the features of the legal sphere), the analysis highlights some minimal elements to establish the basis of a theory of this kind: (i) regarding the relations between law and morality it is possible to sustain that within cosmopolitan constitutionalism, considering that this is a discourse based on the universality of human rights, legal cosmopolitanism cannot be unlinked from moral cosmopolitanism reflections if we want a coherent and potentially universal project (although it is a minimal perspective based on human dignity). this supposes that we do not have to deny the existing tension between law and morality; instead it supposes that we have to recognize it and develop mechanisms to negotiate the interdependence between these two dimensions through the application of the universal in concrete cultural contexts. (ii) additionally, we require a broader concept of power to be able to recover the historical vocation of constitutionalism if this project is to be applied in other spaces (supranational and international) and to survive in the national space. this posits the civilizing capacity of law in relation to power. however, as habermas makes clear, this cannot be unlinked from a profound reasoning about the legitimacy of law beyond the state. so, at this point, legal philosophy must be connected to normative commitments. (iii) finally, we must reframe the concepts of unity and the coherence of the legal system considering the current configuration of the global normative sphere. from the theory of law, we must explain how cosmopolitan norms are created and developed. this leaves us with some challenges: to develop a perspective that is able to describe the legal reality and also, from a normative point of view, to provide criteria to recognize such norms and resolve conflicts. inter-legality as an approach and the construction of a rule of recognition with substantive and procedural criteria are adequate perspectives to confront the complexity of the legal scenario without renouncing the concepts of unity and coherence. the points described are the minimal elements required to advance in the construction of a legal philosophy from the transnational perspective. it is an ambitious research agenda, but it is a challenge that legal science must be willing to face if it wants to argue about the possibilities of cosmopolitan constitutionalism as a political project. the political project cannot be unlinked from legal philosophy reflections. if that challenge legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 100 implies putting limits on other powers, incorporating the morality tension or reframing the terms in which, up until now, we have constructed the legal discourse in terms of unity, it is a necessary effort in regard to not abandoning the idea of constitutionalism. references ansuátegui roig, f. j. 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(2015). transnational law. on legal hybrids and perspectivism . in m. maduro, k. tuori & s. sankari (eds.), transnational law. rethinking european law and legal thinking (pp. 11-57). cambridge: cambridge university press. twining, w. (2005). globalisation and legal theory. cambridge: cambridge university press. velasco, j. c. (2000). la teoría discursiva del derecho: sistema jurídico y democracia en habermas. madrid: boletín oficial del estado-centro de estudios constitucionales. constanza núñez donald the age of human rights journal, 14 (june 2020) pp. 77-107 issn: 2340-9592 doi: 10.17561/tahrj.v14.5479 107 verdross, a. (1964). völkerrecht, 5ª ed. wien: springer. https://doi.org/10.1007/9783-7091-7683-2 walker, n. (2005). making a world of difference? habermas, cosmopolitanism and the constitutionalization of international law. european university working paper 2005/17, 1-12. https://doi.org/10.2139/ssrn.891036 walker, n. (2008). beyond boundary disputes and basic grids: mapping the global disorder of normative orders. international journal of constitutional law, 6(3-4), 373-396. https://doi.org/10.1093/icon/mon016 wet, e. d. (2006). the international constitutional order. international and comparative law quarterly, 55(1), 51-76. https://doi.org/10.1093/iclq/lei067 wiener, a., lang, a., tully (2012). global constitutionalism: human rights, democracy and the rule of law. global constitutionalism, 1(1), 1-15. https://doi.org/10.1017/ s2045381711000098 zolo, d. (2005). los señores de la paz : una crítica del globalismo jurídico. madrid: dykinson e instituto de derechos humanos “bartolomé de las casas”. received: august 8th 2019 accepted: october 23rd 2019 legal philosophy and cosmopolitan constitutionalism. debates on morality, unity, and power abstract keywords summary 1. introduction 2. cosmopolitan constitutionalism: concept and characteristics 2.1. the uses of constitutional language in the international legal debate 2.2. concept and characteristics 3. legal philosophy and challenges from the perspective of cosmopolitan constitutionalism 3.1. law and morality (a) habermas and the janus face of human rights (b) ferrajoli and legal positivist relativism (c) legal cosmopolitanism and moral cosmopolitanism, separate paths? 3.2. law and power 3.3. law and unity 4. conclusion references the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 186 emergence of knowledge commons, risks, and relevance for the human-rights framework david vila-viñas1 abstract:the study of common-pool resources (cprs) has become increasingly important in social sciences. cprs emphasize a more inclusive use and an institutional and normative community-based approach. however, this approach is exposed to access, sustainability, and democracy risks. this paper shows the interest that the rationality of the institutions for the commons can have for the legal sphere and, particularly, for human rights. both are characterized by powerful democratic legislation and share concern for meeting the needs of the subjects involved and for the effectiveness of their contents and guarantees. keywords: commons, knowledge commons, institutions, human rights, escr, effectiveness summary: 1. the emergence of commons. 2. effectiveness, risks and vulnerabilities. 2.1 access. 2.2 sustainability. 2.3 democracy. 2.4 responses. 3. legal impact. 3.1 human-rights approach. 4. conclusion 1. the emergence of commons commons made a significant impact on social sciences at the end of the 20th century. in the academic field, the main trigger was the publication of governing the commons (östrom, 1990). this work draws on research conducted in previous decades by the political theory and policy analysis research group at indiana university.2 the group’s research aimed at the functioning of common-pool resources (cprs) such as aquifers, fisheries or forests. based on that research, they inferred some general characteristics of the nature of these resources and their institutional functioning. the most important aspect of cprs is not the object on which they have been established (the well, the forest or the software) or their particular characteristics, but the fact that they have been institutionalized, in other words, their institutional dimension. this implies the existence of a community that has given itself a set of explicit and implicit norms (hess and östrom, 2016b: 66), methods of participation and mechanisms of law enforcement.3 in political terms, the notion of cprs or, more loosely, commons, has served to analyze how the property regime has expanded to become the paradigmatic regime of the relationship and availability of things, with a tendency to adopt an absolute character. 1 adjunct professor of philosophy of law, university of zaragoza, spain, (dvila@unizar.es) 2 there is a database on cprs and research associated with this group, called the digital library of the commons (https://dlc.dlib.indiana.edu/dlc/). 3 see östrom (1990: 90–102) for a more systematic explanation of the principles of cpr operation. david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 187 in historical terms, a first process of transition from the commons regime to a private or public property regime ―called enclosing― has been noted, particularly in cprs related to popular economics in the modern age (polanyi, 2001; laval and dardot, 2015: 282 and ff.; federici, 2010). more recently, the concept of enclosing has been used to analyze a second process, this time focused on knowledge commons (such as science, software, biodiversity or cultural production),4 key goods in the knowledge economy (boyle, 2008, vila-viñas and barandiaran, 2015). knowledge commons have their own specificities, which imply some analytical consequences, the most relevant being that institutions of the commons do not depend on the nature of the goods on which they are established, although they might be conditioned by their characteristics.5 if the analysis is limited to early cprs ―termed traditional commons by östrom― which tend to be local and to have a strong biophysical component, we might be tempted to think that these institutions are in decline and enclosing is already residual. however, the twentieth-century consolidation of institutions that share features with commons (although with state predominance) and the recent emergence of knowledge commons-based institutions have renewed the scene. both their contrived configuration and the significant threat of enclosure confirm the legal and political nature of these categories. for instance, the option of establishing intellectual property rights over the use of certain biological forms or genomic characteristics (or regulating these fields in any way) does not depend on the nature of these goods that, together with other social relations, have long existed. however, the novelty lies in a change in the legal-political rationality that allows to specify certain aspects of those goods and either include them as others in the legal traffic or exclude their appropriability to establish other uses. the expansion of the cpr notion and its renewed relevance is also due to its role in the context of the network society (castells, 2004) or cognitive capitalism (moulier-boutang, 2011), in which knowledge has become the critical factor of labor and market processes. although the knowledge-commons category is heterogeneous, it shares interesting features with traditional commons. while knowledge commons are often subtractive in nature —the wood taken from the forest by one community member can not be taken by another— “most types of knowledge have, on the other hand, been relatively nonsubtractive. indeed, the more people that share useful knowledge, the greater the common good” (hess and östrom, 2016a: 30).6 this does not mean that knowledge commons are exempt from the social dilemmas that accompany these types of goods and their institutional dimension; for instance, cpr institutions should establish contribution 4 hess and östrom (2016a: 32) understand knowledge as “all ideas, information and data which are intelligible in whatever form they are expressed or obtained”. the differences between data, information and other forms of knowledge are also explored in the paper. 5 laval and dardot (2015: 47–49) argued that there is a risk that the category of commons would be naturalized and thus reduced to a few goods related to archaic economies. 6 authors such as carol rose (1986) have even put forward the idea of a cornucopia of knowledge commons. according to this characteristic, the more these goods are exploited the more productive they are and the more value they acquire. emergence of knowledge commons, risks, and relevance for the human-rights framework the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 188 systems capable of sustaining their operation and sanctioning systems against behaviors that harm them (hess and östrom, 2016a: 38–39). in any event, institutionality and legislation are not a lesser evil for their governance. neither traditional commons nor knowledge commons are natural commons to preserve, but human institutions to reproduce. in terms of their biophysical characteristics, the most notable difference is the increasingly digital nature of knowledge commons.7 the commonality of these knowledge goods also faces the challenge of establishing institutions for the commons on a broader scale than traditional commons. it is true that some knowledge commons are still local ―as a self-training group that teaches courses and runs a small library in a community social center― but many others need to operate on a wider, tending-toward global, scale such as the doaj database8 or the linux operating system. although this distinction is interesting, knowledge commons are not a completely separate category from the whole of the commons. laval and dardot (2015) ―and hardt and negri (2009) before them― established a framework in which they insist that all commons are interconnected to the extent that they form their own social texture, that is, a set of practices and values differentiated from those of the market (private property rules) and from those of the state (principle of sovereignty rules). therefore, it is not just a third type of goods, different from the majority of private goods and the minority of public goods, as neoclassic theory has put forward (vercellone et al., 2015: 10–11). although this approach is not as widespread and multifaceted as östrom’s, it has the virtue of underlining the political and the conflicting dimension of these institutions. consequently, in this extensive understanding of commons, the primacy of knowledge commons as a highly differentiated and prevalent category loses strength. for instance, its intangible character is questioned, due to the huge need for biophysical (schools, teachers) or digital (servers, cabling, etc.) infrastructures (bratton, 2016) and to the biological needs of people that embody that knowledge, such as housing, food or security (vercellone et al., 2014: 18 and ff.). the analysis of the elements of this second enclosure movement reveals that they are objects with material bases, such as seeds (dafermos and vivero-pol, 2015), biodiverse substances (golinelli et al., 2015), human bodies (rosenfeld and mason, 2013) and physical infrastructures supporting the internet. in addition, the outputs of these institutions of commons are not only innovations in digital fields or frontier science, but also in social practices and linguistic and managerial skills that form the basis of the expansion of the personal services sector (morini, 2014; marazzi, 2011). 2. effectiveness, risks and vulnerabilities rather than pre-existing, commons are made, since they are fundamentally a practice of common doing, commoning.9 this notion has several implications. firstly, it 7 this makes hess and östrom’s initial analyses more complex and incorporates new differences. see prainsack (2019). 8 directory of open access journals. see https://doaj.org/ 9 see linebaugh (2013: 64). this same immanent characterization of the communal rights leads linebaugh to differentiate them from the human rights. david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 189 emphasizes effectiveness. if institutions are to endure, they must be effective in achieving their objectives within a given and constantly evolving context. secondly, institutional, regulatory, and organizational issues become paramount. these are features shared by various contemporary approaches to commons. on this consensus, laval and dardot (2015: 663) note that institutional activity is not just a managerial-technical task, but a political activity and, as such, subject to a variety of threats and conflicts. indeed, the popularization of commons has run parallel to the hegemonic progression of neoliberal governmentality. this neoliberal rationality of government has proposed an alternative project to that of traditional and contemporary commons: it has tried to inscribe them in the same logic of appropriability, according to the absolute regime of property (laval and dardot, 2015: 109–110), better known as privatization in the political sphere. this section introduces sources of vulnerability of the commons, with special attention paid to knowledge commons. the following section shows that these risks are shared with those risks impacting the effectiveness of rights, since both commons and rights aim to respond to essential needs. these risks should not be understood as small enclosures and changes in the governance of certain goods, but as part of a governmentality change that proposes replacing basic welfare institutions, such as “social property” (castel, 2004: 41–43), public services, the social rights of post-war constitutions (offe, 1994: 127–134) and the emerging knowledge commons by another institutional network and regime of relations with oneself and others (foucault, 2007: 275 and ff.). how would a research agenda on the risks faced by commons be configured? research into the effectiveness of rights, particularly economic, social, and cultural rights (escr), can use the violation approach, which focuses on studying the most frequent and significant violations to understand how they actually function and to design guarantees that a normative analysis would not make possible on its own (chapman, 1996). the inductive method used by östrom’s group established a classification of the most frequent institutional problems and organized them as: a) equity issues, relating to the balance between ownership and contribution to cprs; b) efficiency issues, relating to the production, management and optimal use of the resource; and c) sustainability issues, relating to the long-term performance of the resource (hess and östrom, 2016a: 29). this approach is an adequate starting point to organize risks into three groups: access, sustainability, and democracy issues.10 2.1. access access problems are related to the possibility of excluding individuals and groups from using and enjoying commons. this is a risk associated with the expansion of appropriability, that is, a management of commons under a property-based regime. for instance, this occurs with the expansion of intellectual property rights over knowledge commons, which promotes the establishment of new forms of exclusion (prainsack, 2019: 7 and ff.). this does not mean that the perfect regime for all commons is one of unlimited 10 this set of risks is consistent with the fundamental principles that recent research on urban commons have noted, such as universality-inalienability, sustainability and democracy (méndez de andes et al., 2019: 1). emergence of knowledge commons, risks, and relevance for the human-rights framework the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 190 open access, which might lead to dynamics of inequal competition and selectivity (morozov, 2012; tkacz, 2012) as well as risks for cpr sustainability. it is, therefore, usual for the communities behind commons to establish rules of exclusion or, at least, limited exploitation to prevent such perverse effects. sometimes those limitations can be inferred from the very characteristics of the common good, for instance, scientific knowledge. although it could be classified as a cpr, access to its outcomes or participation in scientific production are highly regularized through methodological rules imposed by the scientific community itself (ahumada, 2012). nevertheless, the fact that access to cpr depends on certain rules, which are necessary for their own functioning, does not mean they are all admissible in a rights-based approach (e.g., certain experiments are forbidden) nor that they are without consequences for the sustainability of the resource or the general interest. 2.2. sustainability cprs that have persisted have been effective in achieving the goals their communities sought, but also in maintaining their sustainability.11 in contrast to this situation, feminist approaches to social reproduction have shown how neoliberal governmentality does not consider the relevance and cost of sustainability, thus putting the continuity of different forms of life at risk (carrasco, 2014; morini, 2014; pérez orozco, 2014; dalla costa, 2009). neoliberal strategies have taken advantage of the intangible and decentralized composition of many knowledge commons to subordinate cpr sustainability to the benefit of intellectual property rights holders (vila-viñas and barandiaran, 2015). this is contrary to the functioning of knowledge. first, it is not possible to extract knowledge completely from the person who embodies it to insert it into a production cycle as a part of capital, as another factor of production and, second, neither is it possible to individualize it entirely in the position of a particular worker who is paid to use their knowledge. as indicated, governmentality of corporative welfare (rose and miller, 1992: 23; vila-viñas, 2014: 201 and ff) proposed the creation of some major social devices to address these problems and to socialize risks: public education and public health services that could ensure knowledge expansion, transfer systems that could protect in times of labor inactivity and rising wages and a huge proportion of unpaid and subordinated female labor. neoliberal governmentality has added strategies of appropriation of commons, usually known as commodification and privatization (foucault, 2007: 177–179). that expansion of the appropriability of cpr outcomes without an equivalent contribution to 11 see principles illustrated by long-enduring cpr institutions in östrom (1990: 90–102). as vercellone et al. (2015: 18) posit, the innovation of knowledge cprs “recalls ecological and collective problems that were missing from the notions of rivalrousness and non-rivalrousness in consumption. the term commonpool resource makes the ecological problem plain by referring to the equilibrium between the stock and flow necessary to guarantee the reproduction of a resource”. 12 some data may clarify the context of vulnerability of the young population in spain. in the last quarter of 2019, only 18.6% of young people aged 16–29 were emancipated (at the same time in 2008, this proportion was 26.1%). development runs parallel to the prices of rental housing, which has risen from 55.7% to 94% of a worker’s salary during the same period (source: injuve. observatorio de emancipación). the average age for emancipation in eu is 26 years old and 29 in spain (source: eurostat). the risk of child poverty in spain was 26.8 in 2018 (source: ecv, 2008–2018). the average age for having the first child for women in spain was 31 years old in 2018 (source: ine). david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 191 their renewal involves a risk for the sustainability of knowledge commons. consequently, although identifying the risk of the ecological collapse of some cprs is usual, pointing out social and political risks is less so (vercellone, 2011: 90, 103–5). these risks are shared with those that threaten the effectiveness of social rights in spain, such as the right to housing or the right to a dignified life for some groups.12 furthermore, if neoliberal governmentality has increased the capture of cpr resources without the corresponding replenishment, the shift to austerity (blyth, 2013; baker, 2010) has increased the pressure on these resources, even with the sacrifice of economic profit in favor of preserving the status quo.13 2.3. democracy these access and sustainability risks are related to institutional and democratic risks. as boyle (2008: 51) noted, if the tradition of intellectual property rights as an exception has shifted to becoming the norm, it is because of some shortcomings in the democratic development of these new regulations. one aspect that is easily forgotten in the description of the enclosing process from a socio-legal perspective is that it not only puts universal access at risk, by allowing exclusions and discriminations based on property rights that tend toward the absolute, but also cpr sustainability, when it leads to resource exploitation that is not compensated by enough contributions to renew it. in addition, these enclosures also involve a risk for autonomous cpr governance. östrom’s group identified the importance of the community that embodies cprs and its institutional capacity, firstly, to provide rules for self-governance and, secondly, to provide mechanisms to deal with conflicts and to strengthen compliance with these rules. in this regard, if a cpr becomes appropriable, it means any holder of the property rights can manage it exclusively. on a resource scale, this centralizes responsibilities that were formerly distributed throughout the community, even if there was a certain level of differentiation and specialization in how they were performed. on an ecosystem scale based on knowledge commons, such as the contemporary knowledge economy, this hierarchizes its functioning. for instance, the acronym gafa14 now not only refers to the main economic stakeholders, but also to political stakeholders capable of deciding on the form and effects of communications or cultural consumption (zuboff, 2019; cancela, 2019; morozov, 2018). a similar situation is observed in science, which is also a knowledge commons and the object of a right (morgera, 2015; plomer, 2015; shaheed, 2014). most evident violations are due to the discrimination of some populations regarding their access to some medical treatments or to water purification methods, but their continued exclusion from scientific knowledge (e.g., by a reduction in public investment in science or by a 13 before the austerity approach became widespread in many peripheral states, dean (2003: 167–170) describes it as reflexive governmentality, where the primary objective is the security and stability of government and all other objectives are subordinated. 14 information on the technological sector refers to gafa or big four (google, apple, facebook, and amazon) and also gafam or big five, including microsoft, to refer to these major stakeholders. emergence of knowledge commons, risks, and relevance for the human-rights framework the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 192 concentration of patents) has an effect on their possibilities to direct scientific knowledge in accordance with their values and interests, something that it is usually reflected in constitutional texts or in international covenants on rights. this introduces the risk that knowledge is no longer a mechanism of emancipation but a mechanism of domination (laval and dardot, 2015: 254–5; shaver, 2015). 2.4. responses the social-corporate governmentality of welfare generated its own set of preventions regarding these risks, that is, increasing access to basic goods through state solidarity systems and public services, along with contribution devices that allowed for their expansion. both production and life cycles were organized around corporation culture (boltanski and chiapello, 2002), sexual division of labor (fink, 2001; lewis, 1997) and state bureaucracy development for the management of these welfare arrangements (rose, 1996: 46). this set of welfarist solutions returns with force when the neoliberal or austere enclosing movement is at its most severe. in spite of this, the commons tradition has been reluctant to an exclusively statebased response, either due to its liberal roots (such as östrom’s group), its cooperativist15 and municipalist tradition (restakis, 2015), or the pragmatic need to balance the capture power of the private sector (horel, 2019) and of prevalent groups in the state (jessop, 2008; vila-viñas, 2014: 53). these positions underscore the leadership of communities and the progressive democratization of social property managed by the state, either in the form of welfare devices or of public services. these critical approaches also evidence the existence of a fundamental division between public and private in our political imaginary. when principles of access, sustainability and democracy have been extended to private goods, justifications about the antagonism between economic efficiency and democratic management often emerge. based on the greater importance of commons in the knowledge economy, only recently has the relevance of the commons-based production regimes (benkler, 2006) increased, that is, a production where “no one uses exclusive rights to organize effort or capture its value, and when cooperation is achieved through social mechanisms other than price signals or managerial directions” (benkler, 2004: 1110). in a welfare regime, the response to these and other social risks was organized around the opposition between commodified and de-commodified spheres. in the latter, the right to access essential goods was guaranteed for some social groups (esping15 from this approach, this government, built over the praxis of the common (laval and dardot, 2015: 266) should be differentiated from the extremes of pure sovereignty and simple management: “thinking in terms of a collective practice related with the use of the unavailable. neither government nor management, but a collective active use through which everyone participates in the coproduction of non-state legal norms” (laval and dardot, 2015: 306). 16 most critical approaches to the state, such as laval and dardot (2015), equate the political effects of market and state rationality. in the framework proposed by this paper, this identification is incompatible with the constitutional-positivist systems of rights. as a result, the framework or structuring of the public and the commons will be used more often than market rationality and the absolute character of property rights. david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 193 andersen, 2007). based on a commons approach, the opposition would not be organized between market and state rationalities. the most usual opposition would be between market rationality (organized around an absolute notion of property rights) and commons rationality.16 this approach would change the view of the risks of access, sustainability and democracy, which are risks shared between the commons and the de-commodified sphere in welfare systems. this would also allow for a more realistic response to current rights violations. 3. legal impact since the commons approach became popular in politics and academia, several proposals have tried to use it in the legal field. the best known, mainly from us law schools, exposed the extent of intellectual property rights, in parallel to the emergence of the field of information and communication technologies (boyle, 2008; harvey, 2007: 64– 65; lessig, 2004; bollier, 2003). at the same time, they explored alternative regulations of property rights over knowledge goods that were the subject of this second enclosures movement. consequently, intellectual property rights compatible with principles of commons were designed in the fields of cultural and scientific production (as creative commons or copyleft licenses), of software (lessig, 2006), or of hardware (pearce, 2014; lazalde et al., 2015). a common-based production system was also presented (benkler, 2006), so it could serve as an alternative to production organization that is increasingly based on closed intellectual property rights. research conducted by constitutional law was added to these alternatives offered mainly by private law. the relevance of law as the fabric of the network of plural social relations was underlined based on the social law tradition (gurvitch, 2005). the issue was knowing the role the political rationality of commons could play in that task of improving not only the governance of certain goods and productive processes, but also of the social whole and its political dimension. to this end, spaces of local democracy have been the main field of research, hand in hand with processes of co-government of public services,17 in accordance with the subsidiarity principle.18 a recent example of this approach is the recovery of privatized services under a new logic that is not exclusively public (cangelosi, 2019: 80). on a broader scale, the main object of criticism has been the expansion of an 17 cases in the emilia-romagna region are well known, where a management system of some public services by entities of social and solidarity economy was chosen (restakis, 2015), and democratization processes of psychiatric institutions were implemented (basaglia, 1972). 18 in the public management sphere, this principle proposes that the community directly manage a service or public resource where possible, while the state should only intervene when direct management by the community is not possible (restakis, 2015: 604 and ff.). 19 see vercellone et al., 2015: 4–5: “moreover, from the concrete experiences analyzed here, the idea emerges that the concept of common goods can constitute a concrete alternative, and that includes on a legal footing [rodotà commission]. therefore, the common is the product of a social and institutional structure that demonstrates forms of governing and social co-operation that guarantee its production, reproduction and spread. the new institutions of the common that emerge from these constituent practices constitute a general principle of self-governance of society and self-organization of social production, proposing a new division between common, public and private”. emergence of knowledge commons, risks, and relevance for the human-rights framework the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 194 absolute property right (laval and dardot, 2015: 529 and ff.; hardt and negri, 2009: 3 and ff.), which has become a material limit for the effectiveness of our human-rights systems. these approaches, as a whole, have generated a pluralization of the legal field, introducing a common realm between the classic public (state-sovereignty) and private (individualproperty) dichotomy.19 it is a new realm linked to the ecological one and its inappropriable nature (mattei, 2011: 10–12), in contrast to the “fundamental structure [of] the rule of a subject (an individual, a company, the government) over an object (a private good, an organization, a territory)” (mattei, 2011: 6), which has prevailed until now. one thread that could link the concept of commons with our legal traditions would be custom. some historical examples, such as the english magna carta, and, in particular, the charter of the forest, of 1225, recognize pre-existing institutions of the commons, with their rights nested (linebaugh, 2008). based on objectivist and iusnaturalist perspectives of the legitimacy of rights, the episodes of rights recognition in positive legal norms would be the legal consolidation of legitimate and legally relevant pre-existing practices (pérez luño, 2013: 58 and ff.).20 within the framework of this paper, the interest in custom stems from its democratic legitimacy, as a repeated practice with a general awareness of its legal enforceability. however, from a democratic perspective, the main feature of commons is their institutional and normative character. as noted above, one of the most consistent principles that östrom’s group found in the analyzed cpr (östrom, 1990: 90–102) was the creation of the rules of operation by the communities behind the cprs. these rules were later recognized by the external authority. therefore, both cpr creation and continuity are not spontaneous and, instead, obligations and legal links between the members of their communities are very important (laval and dardot, 2015: 173). all this brings to light the political and institutional dimension of these resources in contrast to the activity of mere management. cprs are institutions capable of producing norms from certain sets of practices and conflicting relationships with alternative strategies for governing those resources.21 this configuration of commons has two legal consequences. first, by highlighting the institutional dimension,22 the relational aspects of legal practice are also emphasized. the starting point is no longer the autonomous subject that uses the world or things in an abstract 20 although it is not the main object of their research, laval and dardot (2015: 352 and ff.) criticize the political effects of this connection between customs and commons because: 1) it does not reflect the process of formation of some commons, such as recent knowledge commons; 2) customary norms arise from a particular network of power relationships, which are difficult to translate into the present; and 3) they are not necessarily in line with the principles of the common, and, to show that, they point to succession law, which they define as an obstacle for the institutions of the common. 21 “unlike ‘management’, ‘government’ assumes conflicts and seeks to overcome them through a decision concerning the rules. instituting praxis is, therefore, a practice of governing the commons through the conflicts that give them life” (laval and dardot, 2015: 663). 22 in their conclusions, laval and dardot (2015: 662–663) maintain a concept of commons quite separate from the more extended meaning as common goods or, as argued in this paper, as institutions of the commons, close to a cpr notion. although it is an interesting concept because it underlines some characteristics noted in this paper, it is far removed from the general meaning of these concepts, both in legal and political spheres, and is thus less useful. david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 195 manner, in accordance with the modern subject-nature division, it is rather an institution formed by a practice of a community of interdependent subjects operating in a given context. this context is sometimes local, such as the running of an irrigation system, and sometimes global, such as the evolution of a scientific discipline. at the same time, institutions are never isolated, but function in a relational manner, in accordance with the induced features and conditions of their ecosystem, that is, based on immanent normativeness. second, this institutional life is dynamic. cprs are artificial and there is not an obligation to sustain them; rather, it depends on their usefulness for the objectives of the community that embodies them. based on this perspective, the attention paid by legal positivism when a legal norm is enacted becomes less important and, instead, the focus shifts to the changes in the effectiveness of existing norms. these are adapted as the environment evolves, either implicitly or explicitly, by developing new more specific norms, resolving conflicts and allocating sanctions and rewards; that is the reason why the prevalent legal form of cpr governance is made up of principles rather than rules (prieto sanchís, 1996). this legal tool makes it possible, firstly, to establish the translation of the community’s material values and goals and, secondly, to serve as a hermeneutic criterion so that daily cpr governance can adapt to changes. it is, therefore, a dynamic concept in which the efficacy of norms and guarantee mechanisms become key elements. 3.1. human-rights approach this paper proposes that the commons approach has elements akin to the human-rights approach. thus, the development and use of the former can enhance some aspects of the latter that will be explained in this section: 1) it strengthens the focus on the effectiveness of the rights; 2) in particular, on their factual dimension, that is, the dimension related to specific violations aimed at designing more appropriate and effective strategies and guarantees; 3) the commons approach reduces the distance and hierarchy between civil and political rights and economic, social and cultural ones; and 4) all this improves the legitimacy of the legal system as a whole. regarding the first issue, it should be noted that the commons are sets of practices that must find their own normative path to becoming institutionalized. consequently, the distance between the normative and descriptive dimension is reduced. in a process that is analogous to the recognition of new rights, norms of the institutions of the commons respond to immanent needs that are consolidated. when the democratic principle is also operating properly, the whole community participates in fulfilling these rules.23 due to the energy invested in the development and adjustment of norms and their relevance for institutional sustainability (laval and dardot, 2015: 172, 419 and ff.), it is foreseeable that communities will pay attention to their efficacy, to the most frequent violations and 23 although many political stories show both the institutions of the common and those ruled by the ownership principle as an isolated world, in fact both institution types share one world. researching the flexibilization that this interdependence imposes on implementing the institutional principles of commons is needed, such as the flexibilization of the democratic principle in social and solidarity economy, with the introduction of some hierarchies within commons governance. emergence of knowledge commons, risks, and relevance for the human-rights framework the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 196 to when these are no longer isolated situations but reflect systematic vulnerabilities. risk management around problems of access, sustainability and democracy, which have been outlined in the previous section, has aimed to show that certain risks and vulnerabilities are shared between commons institutions and human rights, particularly escr. concerning the second issue, this strategic approach has resulted in the importance of techniques to control and guarantee the effectiveness of the main institutional principles (similar to human rights for society as a whole), and establishing the necessary claiming and self-execution mechanisms.24 the commons institutional perspective operates on the basis of a flexibilization of the contours separating those who establish the norms, those who apply them and those bound by them or who claim judicial protection in the event of a violation: an institutional development space is created to make commons (commoning) and rights. relating to the third issue, the distance and the hierarchy between civil and political rights, on the one hand, and escr, on the other, are blurred.25 indeed, as noted above, the effectiveness of social rights such as access to education, health or science, together with a progressive system of fiscal contributions for their sustainability, is at the heart of the development of knowledge commons, which are conditions of the current knowledge economy.26 a distinction between these two groups is rather less useful in relation to problems and strategies posed by commons, as some examples show. in the case of science, the impossibility of accessing this resource not only harms their economic status, but also the free development of their personality and their dignity. women’s unequal access to social prevention devices, such as a pension system,27 not only affects their economic status, but also their independence, for instance in accessing a life free of violence (bodelón, 2014; meyersfeld, 2012). it is naive to think that the damage suffered by the planet will impact only on the social and economic aspects of life, without conditioning civil and political rights, as is evident in the face of any major public health alarm. although this pragmatic nature is found at the heart of commons, the way of addressing institutional risks generates chains of equivalence between different 24 aparicio (2017) has criticized the lack of attention that research has paid to mechanisms of self-execution of rights. consequently, it might be interesting to recall the existing lines of exclusion in the access to court. as mattei (2011: 5) has noted: “furthermore, it has always been problematic for the commons to find someone that would represent them in court, by suing those who tried to seize them. both historically and today, those who benefit most from the commons are not ‘owners’ in the technical sense, but usually poor farmers (or today young internet surfers) with no means of getting into the court system”. 25 see gómez isa (2011) and calvo garcía (2016) about how this hierarchy has worked in recent contexts of economic crises. 26 as vercellone et al. (2015: 31) state: “the increase in the part of capital called intangible is closely linked to the development of the institutions and collective services of welfare. in particular, it should in fact be emphasised how is actually the expansion of the collective welfare services that has allowed the development of mass education, carrying out a key role in the formation of what we can call collective intelligence or widespread intellectuality: it is in fact the latter, widespread intellectuality that explains the most significant part of the increase in the capital referred to as intangible which, as is emphasised, today represents the essential element of a territory’s potential growth and competitiveness”. 27 the spanish gender gap in retirement pensions has reached 34.6%, which means that women earn on average almost €6,000 less per year than men per year for this item (ugt, 2019). 28 see laval and dardot (2015: 524): “politics of the common aims at the reorganization of the social by substituting use rights for the principle of property as the juridical lever of social and political transformation”. david vila-viñas the age of human rights journal, 15 (december 2020) pp. 186-202 issn: 2340-9592 doi: 10.17561/tahrj.v15.5779 197 spheres, underlining their strategic value: claims for access to goods include the right to participate in their governance and to determine the norms that will help them endure and evolve (laval and dardot, 2015: 121–122), for instance, how commons question the extension of property rights as absolute since modernity. by linking access to property with freedom, independence and, thus, dignity, liberalism showed that rights are integral (locke, 1990 [1690]). as happens in commons, the right to access is a right to participate in the governance of their institutions, on condition that it is not an absolute right, but part of a bundle of rights that form an interdependent institutionality.28 consequently, violations in any of their dimensions (social or political) would put at risk not only one aspect of a person’s rights, but the inter-institutional whole. concerning the third issue, all this explains why using new categories, such as commons, might result in a relegitimization of contemporary legal categories and the functioning of the legal, political, and social order. 4. conclusions in recent decades, the study of cprs has become increasingly relevant within social sciences. it has also been updated with the inclusion of knowledge commons. this concept emphasizes more inclusive use of resources and, above all, a normativeness and institutionality built by their own communities. in short, the notion of commons does not refer so much to a resource with certain characteristics as to a set of practices (commoning) aimed at raising institutions of the commons. of course, under the hegemony of neoliberal and, more recently, austerity-based governmentalities, these institutions face risks. this paper has sought to organize these risks in terms of access, sustainability, and democracy. in a sense, contemporary commons risks, in their second enclosing movement, are shared with the risks facing the effectiveness of human rights, particularly escr. this paper proposes that the commons approach has elements akin to the humanrights approach. consequently, the development and use of commons can enhance the human-rights approach in some aspects: 1) it strengthens the focus on the rights’ effectiveness; 2) in particular, on their factual dimension, that is, the dimension related to specific violations aimed at designing more appropriate and effective strategies and guarantees; 3) the commons approach reduces the distance and hierarchy between civil and political rights and economic, social and cultural ones; and 4) all this improves the legitimacy of the legal system as a whole. references ahumada canabes, m. a. 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(2014) la gobernabilidad más allá de foucault. un marco para la teoría social y política contemporáneas. zaragoza: prensas universitarias de zaragoza. zuboff, s. (2019) the age of surveillance capitalism. the fight for a human future at the new frontier of power. public affairs. received: may 25th 2020 accepted: august 14th 2020 articles david vila-viñas emergence of knowledge commons, risks, and relevance for the human-rights framework 1. the emergence of commons 2. effectiveness, risks and vulnerabilities 2.1. access 2.2. sustainability 2.3. democracy 2.4. responses 3. legal impact 3.1. human-rights approach 4. conclusions references the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 220 the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies carlos lema añón1 abstract: the covid-19 pandemic has particularly affected spain in 2020. although the specific causes and spain’s response—as well as the aspects to be improved—are yet to be evaluated, many experts agree that this crisis has magnified some of the problems of the spanish health system, highlighting the problems derived from the cuts in the capacities of the health and public health systems. we assess the current situation from the perspective of the right to health in its twofold dimension: health care and social determinants. for this purpose, we look into the configuration of the right to health in spain and how the economic crisis and austerity policies affected it. in particular, we consider the impact both on institutional health care systems and in terms of social determinants of health. finally, we make several proposals for strengthening the right to health. keywords: right to health, covid-19, social determinants of health, austerity policies. summary: 1. the impact of the covid-19 pandemic. 2. the evolution of the right to health in spain. 3. the consequences of austerity policies on the health system. 3.1. the legal framework of the austerity policies in health care. 3.2. the consequences of the austerity policies in health care. 4. social crisis, inequality and the social determinants of health. 5. elements for strengthening the right to health. 1. the impact of the covid-19 pandemic the covid-19 pandemic caused by sars-cov-2 virus, which has affected millions of people worldwide, has had a major impact on spain. it was one of the hardest hit countries during the first wave, between march and june, and it has also been severely affected by the second (the lancet, 2020). as of december 15, 2020, confirmed cases exceeded 1,930,000, and the number of confirmed deaths was 50,837. it is generally assumed—and spain is no exception—that the confirmed figures underestimate the actual numbers. seroepidemiological studies carried out by carlos iii health institute (isciii) estimate that the cumulative prevalence may have reached 9.9% of the population (isciii, 2020; pollán et al., 2020), which would mean more than 4.5 million cases. as to the number of deaths, according to estimates by the national statistical institute (ine) based on excess deaths and civil registration data, by may 2020 more than 45,000 people would 1 professor of philosophy of law. instituto de derechos humanos gregorio peces-barba. universidad carlos iii de madrid, spain (carlos.lema@.uc3m.es). orcid: 0000-0003-0889-3272. project der2016-76078-p “condicionantes sociales de la salud y justicia: los desafíos del derecho a la salud”, del programa estatal de investigación científica y técnica de excelencia del ministerio de economía, industria y competitividad. mailto:carlos.lema@.uc3m.es https://orcid.org/0000-0003-0889-3272 carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 221 have died from covid-19, contrasting with the official figure of 28,000 confirmed deaths for that period2. already in august 2020, a group of spanish scientists published a letter in the lancet medical journal calling for an independent evaluation of spain’s response to covid-19, not as a way to seek responsibility, but to identify areas for improvement (garcía-basteiro, 2020a).3 pending such evaluation, either official or based on multidisciplinary research, these scientists pointed to some potentially relevant elements, such as the lack of pandemic preparedness (weak surveillance systems, low testing capacity, etc.), a delayed reaction by the authorities, slow decision-making processes, poor coordination, high levels of population mobility, an ageing population, the existence of vulnerable groups experiencing health and social inequalities, and a lack of preparedness in nursing homes. the relative importance of these or other elements is something that remains to be determined and will require an effort that cannot be addressed here. nevertheless, these researchers also referred to the general situation of the public health system: “these problems were exacerbated by the effects of a decade of austerity that had depleted the health workforce and reduced public health and health system capacities” (garcía-basteiro, 2020a: 529). several analysts share the view that, regardless of the specific, more or less appropriate responses to the pandemic and sociological, demographic or behavioral realities, it is necessary to consider the previous situation of the public health systems—and, in some cases, their deterioration. thus, an editorial in the lancet agreed that the covid-19 crisis had magnified some weaknesses of the spanish health system (the lancet, 2020). again, spain is no exception. in a comparative review of the triage criteria implemented in different countries during the pandemic, the authors remark how such processes have revealed many weaknesses in all health systems. until now, many of these problems had been overlooked because they manifested themselves at the individual rather than the systemic level (jöbges et al., 2020:958). it could even be argued that the shortcomings found within national health systems reflect more general trends emerging from a deterioration of the global health system understood as a common good (garrett, 2001). therefore, a more detailed assessment will be necessary to determine why the pandemic has affected us with such intensity. however, it is also worth examining the state of the right to health in spain when the pandemic needed to be faced. this, in turn, requires considering the actual impact of the decade of austerity in this right. conceptually, austerity policies can affect health through two mechanisms (stuckler et al. 2017: 18). on the one hand, through the effect on health protection systems themselves resulting, among others, from cuts to health care services, coverage reductions or access restrictions. on the other hand, through a “social risk effect” due to increasing unemployment, poverty and other risk factors, as well as through cuts in welfare programs that can mitigate these health risks. we will analyze the effect of austerity policies in spain on public health, 2 https://www.ine.es/experimental/defunciones/experimental_defunciones.htm. 3 in november, they outlined some criteria and requirements for this evaluation (garcia-basteiro et al., 2020b) https://www.ine.es/experimental/defunciones/experimental_defunciones.htm the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 222 the health care systems, and health protection mechanisms, on the basis of this twofold approach. thus, we will assess both the effect on health protection systems and the social risks to health that may have been triggered by such policies. the perspective of rights, and specifically the right to health, provides a common framework for both approaches. in accordance with international regulations, the right to health must be understood as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” as enshrined in article 12 icescr. this means, among other things, that the right to health should not be identified exclusively with the right to health care, as is sometimes hastily done. and much less with health care understood as a response to disease from a hospital-centric perspective. obviously, the right to health comprises the right to health care, but also other measures ranging from prevention and public health approaches to the impact on the various factors that affect people’s health, including social and environmental factors. the aim of enjoying “the highest attainable standard” of health, in short, calls for attention to the various social and institutional mechanisms that can promote it, whether these are purely medical or not. in this regard, the right to health must be understood as “a right to the socially controllable determinants of health” (hassoun, 2020: 158), that is, the right to an equal access to such determinants. and these are precisely the two dimensions referred to above: health care systems and social determinants of health—both constituent of the right to health. this twofold perspective—medical and social—required for a complete assessment of the right to health underpins the proposal to reconceptualize the covid-19 pandemic as a “syndemic.”4 in fact, the proposal comes from the lancet’s editor-in-chief, richard horton (2020), who points out how covid-19 infections interact especially in certain populations with other non-communicable diseases, so that “these conditions are clustering within social groups according to patterns of inequality deeply embedded in our societies. the aggregation of these diseases on a background of social and economic disparity exacerbates the adverse effects of each separate disease” (horton, 2020: 874). consequently, analyzing covid-19 in syndemic terms requires taking into account its social origins, as well as the special vulnerability of certain groups (the elderly, minorities, precarious workers, etc.), in order to approach it not only from a biomedical perspective but also by addressing the profound existing social inequalities. the way in which the right to health—and other related rights—have been affected in spain by the covid-19 pandemic and its management is a broader question that cannot be thoroughly examined here. however, it is worth mentioning the most salient issues.5 first, there is evidence of serious lack of protection of the rights of the elderly in 4 the notion of “syndemic” was first developed by a medical anthropologist, m. singer, to conceptualize interactions between diseases that are exacerbated by inequality, poverty or structural violence (singer, 2009). 5 as regards other rights, the constitutional court has only ruled on the right to demonstrate during the state of alarm. in this case, the constitutional court considered the limitation introduced by order 40/2020, of april 30, justified under articles 15 (right to physical integrity) and 43 (right to health protection) of the constitution. therefore, the court rejected the appeal for protection (recurso de amparo) against the decision not to authorize a demonstration in vigo on may 1. carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 223 nursing homes, where it is estimated that almost half of the deaths occurred during the first months of the pandemic (ai, 2000: 4). amnesty international has published a report on these cases denouncing a violation of the human rights of older people living in care homes, in particular their right to health, life, and non-discrimination. the problem was particularly severe in catalonia and madrid (ai, 2020), where there was a “general and discriminatory exclusion from access to hospital care” (ai, 2020: 6), with no realistic alternative treatments. second, and closely related to this, was the question of hospital treatment prioritization and in particular access to intensive care units at times of great pressure due to the continuous influx of patients. this issue, with major ethical, legal and human rights implications, emerged in various countries both at a theoretical level and through the establishment of public criteria to address it. the resulting standards share some common features but also differ significantly across countries (ehni et al., 2020; jöbges et al., 2020). in spain, beyond the aforementioned legally and ethically questionable actions in relation to nursing home management, efforts have also been made to define public criteria that reflect ethical and legal principles such as the prohibition of discrimination—including age discrimination (ministry of health, 2020; gonzález suárez, 2020). third, the availability of vaccines raises the question of access and prioritization. in addition to the epidemiological and logistical dimensions, ethical and human rights issues must be considered along with structurally disadvantaged groups (schmidt, 2020). these and many other open questions are linked to the right to health during the covid-19 pandemic. however, for all the above reasons, this work focuses on the state of the right to health in spain at a time of undoubtedly exceptional circumstances. health protection mechanisms and systems were placed under extreme pressure, but there are good reasons to believe that they were already operating at their limits. below we will first examine the configuration of the right to health in spain, considering its constitutional design as well as its legal, institutional and material evolution. then, we assess the impact of the austerity policies implemented over the last decade, which have affected public health infrastructure as well as prevention and research—in addition to entailing significant cutbacks in equipment and personnel. from the abovementioned perspective based on the right to health, we evaluate the effect of such policies (i) on institutional health care systems; and (ii) on health and social determinants of health. finally, we make several proposals for strengthening the right to health in spain. 2. the evolution of the right to health in spain whatever the diagnosis on the state of the right to health in spain and the related issues, it is worth putting into perspective its—overall positive—evolution since its recognition at the end of the 1970s. indeed, the starting point was a deficient and incomplete public system where the provision of services did not qualify as a right. the momentum for reform, democratization and modernization allowed the development of a complete, universal and decentralized public health system. despite its shortcomings, it has been regarded as the best national public service, “with the essential characteristics to provide care to all citizens, based on equity and solidarity, with a relatively high level of quality and at a reasonable cost with respect to the country’s wealth” (álvarez gonzález, 2007: 22). the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 224 from the regulatory standpoint, the notion of the right to health was incorporated by the international covenant on economic, social and cultural rights, which came into force in spain in 1977. its article 12 reads as follows: “the states parties to the present covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”6 it thus establishes an international standard linking this right to other rights such as food, housing, work, education, life, non-discrimination, equality, freedom from torture, privacy and access to information. the 1978 spanish constitution7 incorporated the right to health in its article 43: “1. the right to health protection is recognized. 2. it is incumbent upon the public authorities to organize and safeguard public health by means of preventive measures and the necessary benefits and services. the law shall establish the rights and duties of all concerned in this respect. 3. the public authorities shall promote health education, physical education and sports. likewise, they shall encourage the proper use of leisure time.”8 the constitutional recognition of this right entails a series of mandates for its implementation. as is well known, it is systematically placed among the governing principles of economic and social policy. this means that it is not acknowledged as a fundamental right with the maximum guarantees, so it does not confer an immediate entitlement subject to effective judicial protection. however, it is still an actual right with legal weight, even if it must be further developed by the relevant implementing legislation. indeed, it has legal force in the sense that it constitutes a mandate to public authorities, who must develop and implement it. it also sets a limit to governmental action and provides an interpretative criterion for the entire legal system, as well as a standard for the basic conditions guaranteeing the equality of all citizens (art. 149(1)(1)). on the other hand, from a systematic point of view, the right to health is connected with the substantive equality clause of article 9(2) and with the right to life and integrity under article 15 (león alonso, 2009: 165-170). therefore, the connection with clauses enjoying greater constitutional protection opens a way for an indirect guarantee. furthermore, the aforementioned international recognition of this right also imposes standards of legal protection. the content of the right to health—both in its subjective and objective scope—can be derived from the constitution in spite of its brief formulation. it is certainly a complex 6 the interpretation of this article is developed in the general comment no. 14: the right to the highest attainable standard of health (article 12) (2000), adopted by the committee on economic, social and cultural rights (e/c.12/2005/4, 11 august 2000). 7 the 1931 constitution was an advanced precedent for its time, even if its wording was rather undeveloped. its article 43 established that, “the state shall provide assistance to the sick,” complemented by the establishment of health insurance for workers (art. 46). all this, under title iii on rights and duties, which makes it clear that it is conceived as a right. 8 although the constitution uses the expression “right to health protection,” with extensive presence in the spanish legal literature (pemán gavín 1989: 28, menéndez rexach, 2003: 17), we will use the internationally more widely accepted expression of “right to health.” there is no conceptual difference between both formulations, which should be understood in accordance with the international standard (“the highest attainable standard of physical and mental health”) enshrined in the icescr—i.e., in terms of equal access to the determinants of health rather than just to health care. carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 225 right, including different obligations, as well as positive and other mandates (abstention), entitlements or benefits, promotion of health, etc. it is also intricately linked to other rights, as can be seen from a systematic perspective within the framework of the social or welfare state (art. 1(1)) and the promotion of material equality (art. 9(2)). as for the subjective scope of the right (i.e., its holders), a universality and an equality mandate stem from the constitution. the former has been gradually fulfilled since the adoption of the general health act 14/1986, establishing in article 1(2) that all spanish citizens and “foreign nationals resident in spain” are entitled to the right to health and health care.9 with regard to the equality mandate, the transfer of health care powers to the autonomous regions (pursuant to article 148(1)(21) of the spanish constitution) has raised the question of whether the content of health care services can be different in each region. insofar as the state holds exclusive competence over the bases and general coordination of health matters, legislation on pharmaceutical products (art. 149(1)(16)), as well as the “regulation of the basic conditions guaranteeing the equality of all spaniards in the exercise of their rights” (art. 149(1)), the possibility for autonomous regions to provide additional benefits has not been problematic (see, in this regard, judgment 98/2004 of the spanish constitutional court). the greatest challenges to the equality mandate come from inequalities and inequities not in benefits but in health outcomes at the regional level, disparities between rural and urban areas, and above all from health inequities driven by socioeconomic inequalities, as we will see below. although the objective scope of the right to health derived from article 43 seems rather undetermined, its minimum content must be defined based on the principle of progressive realization enshrined in article 2(1) icescr and in accordance with the relevant international standards, including general comment no. 14 of the committee on economic, social and cultural rights (escobar roca, 2008: 537, pemán gavín, 2008).10 as already mentioned, the constitution refers to ordinary legislation for the implementation of the right to health. this development took place speedily and with guarantees—not only at the regulatory level but also in the public policy specification of the right, as well as in the strengthening of the health system in accordance with the constitution. this required institutional, organizational and financial resources in addition to legal mechanisms. the adoption of the 1986 general health act completed the regulatory implementation of article 43 of the constitution, thus defining the right to health as a subjective, universal, legally enforceable right subject to judicial protection with a broad guaranteed content. 9 nevertheless, as we shall see, this mandate has been subject to swings, especially with royal decree-law 16/2012. 10 a more complex question is whether this includes a prohibition of retrogression. in its general comment no. 14, on right to the highest attainable standard of health, the committee on economic, social and cultural rights argues that there is a strong presumption that retrogressive measures on the right to health are not permissible. in any case, it is for states parties to prove that they have been introduced after careful consideration of possible alternatives. in a similar vein, añón has convincingly argued that such decisions are legally constrained by a number of safeguards ultimately aimed at protecting the right in question (añón, 2016). the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 226 in terms of financing, it went from a system in which almost three quarters of public health spending was financed by labor contributions, to a system (since 1989) fully financed by general taxation. thus, by unequivocally establishing the universality of the right to health, the general health act 14/1986 updated and changed the model— previously linked to labor conditions and now based on universalized social citizenship. in the same vein, it created the national health system (sistema nacional de salud or sns) based on the integration of all public health services and conceived as an institutional guarantee of the right to health (monereo and molina, 2007). the sns is in turn made up of the coordinated set of health services of the autonomous regions, since they have assumed health-related competences. the central government retains certain powers in accordance with the constitution, such as the bases and general coordination of health.11 the starting point for the development of a health system based on rights-driven social policies was inadequate and far from the european benchmarks. public spending on health as a percentage of gdp in spain in 1980 was 4.5%, far below the european union average. the evolution of this figure in the following years shows the enormous progress made in the modernization and consolidation of the public health system securing the right to health. at the same time, it reveals some shortfalls in relation to the most advanced european benchmarks. by 2000 it had already risen to 6%, although the european average stood at 7.5%. in 2009, it reached a maximum of 7.2%, above the eu average, which in turn had decreased after the accession of the eastern european countries. in any event, it remained far from the leading countries such as france and germany, which reached 9%12. despite all its limitations, the fact that this indicator is not expressed in absolute numbers but in relation to the national wealth makes it comparable among countries, thus opening the way to arguments for greater financial effort in spain. moreover, if we look at health expenditure per capita, in 2019 spain spent €2,451, below the eu average (€2,572), close to italy (€2,473) and portugal (€2,290), but far from germany (€4,504) and—outside the eu—norway (€4,505) (oecd, 2020: 159). similarly, spain’s public spending in relation to the country’s total health expenditure is also below the european average. eu’s average spending as percentage of gdp was 8.3% (a figure that has remained relatively stable since 2014), ranging from 11.7% in germany and 11.2% in france to 5.7% in romania. spain’s 9% is above the average, but only 6.4% is public spending—the remaining 2.6% being private out-of-pocket spending (oecd, 2020: 163). this means that only 70.8% corresponds to public spending, below the european average of 74.1% and far below germany (85%), france (83.7%) or sweden (85.2%). in short, if we compare different statistics on the state of the national health system and health outcomes in the european context, the findings are in line with our conclusions. there are positive indicators (especially in light of the transformation undergone in the last 11 in this regard, once the transfer of powers to the autonomous regions was completed, act 16/2003 reorganized the system’s coordination mainly through the interterritorial council (created by the general health act) 12 https://ec.europa.eu/eurostat/databrowser/view/tps00207/default/table?lang=en. https://ec.europa.eu/eurostat/databrowser/view/tps00207/default/table?lang=en carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 227 decades) such as the comparatively low level of unmet health care needs, the number of physicians per inhabitant, and avoidable mortality (preventable and treatable). however, other indicators are comparatively far from the best performers and clearly below average, such as the availability of hospital beds per capita, the number of nurses per capita, or waiting times for operations (oecd/european union, 2020; 176, 204, 212, 218, 222, 226). 3. the consequences of austerity policies on the health system the 2008 economic crisis affected the national health system, among other things, by reducing health expenditure per capita, which until then had been increasing and approaching the european average. the annual growth rate in real terms (adjusted for inflation) was negative in the period 2008-13 (-1.4%), higher only than greece, portugal, croatia and cyprus (oecd/european union, 2020).13 this undermined the system, leading to underfunding and—as we will see—a deterioration in the conditions of the right to health itself, both in terms of benefits and its holders. in any case, it is worth considering to what extent the setbacks can be attributed to the crisis or rather to the neoliberal and austerity measures implemented to tackle it. m. calvo has convincingly supported the second hypothesis, blaming this deterioration on “the long-standing neoliberal attack against social rights, reinforced in recent years on the pretext of the crisis” (calvo, 2013: 111). the eu’s approach to the crisis, focusing on budgetary balance through major adjustment measures (including reductions in public expenditure) would have significantly affected welfare policies, education, health care, and social rights in general (calvo, 2013: 117). therefore, it could be argued that governments did not perceive health care as a priority but as a reserve for budget cuts (palasca and jaba, 2015: 531). however, not all eu countries implemented the same policies or targeted the health sector with the same intensity (karanikolos et al., 2013: 1324-5)14. 3.1. the legal framework of the austerity policies in health care. in the case of spain, this type of policies strikingly undermined—at least in part— some aspects of the national system until then regarded as the most outstanding: universal coverage, public financing through progressive taxation, public provision of services, and access to health services and products without costs or barriers for patients. the main measures implemented can be classified into cutbacks, privatization, and segmentation. we will address each of them separately. although the general shift towards austerity in spain began in the second half of 2010, the main legal instrument defining the response to the economic crisis in the health sector was royal decree-law 16/2012, of april 30, on urgent measures to guarantee the sustainability of the national health system and improve the quality and safety of its services. it systematized some responses, but certain measures—especially those related 13 health spending per capita returned to a positive path in the period 2013-2019, with an annual rate of 2.3%, still below the european average of 3% (oecd/european union, 2020: 158). 14 some countries such as belgium and denmark did not reduce their health budgets, even if other sectors experienced cuts (karanikolos et al., 2013: 1324). the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 228 to cuts and privatization—were implemented through other mechanisms such as budgets. the outcome was not entirely homogeneous across autonomous regions.15 regarding the cuts, apart from the drop in public spending per capita and in relation to gdp, some regulations such as rdl 16/2012 segmented the services offered by the health system. this allowed some autonomous regions to reduce their services to the lowest common while introducing “copayment” by means of economic contributions from patients. the aim was to contribute to the financing of health expenditure and to reduce demand. this measure is not blatantly contrary to international law, since the corresponding obligation is not one of gratuity but of accessibility (escobar roca, 547; pemán, 2008: 55). however, even if these measures do not generate accessibility problems—which is far from certain16—placing the funding burden on patients is highly questionable from the system-wide perspective. therefore, this option unfairly blames the patient while promoting the commodification of the services in the health sector (benach et al., 2012: 72). beyond these issues and in addition to excluding certain benefits, budget cuts sometimes involved the closure of services and health centers, and especially personnel reduction. they also have been associated with increases in waiting lists and delays in obtaining treatment (legido-quigley et al., 2013), which also affected the most vulnerable sectors (lópez-valcárcel and barber, 2017: 18). thus, between 2012 and 2014 the number of workers in the national health system was reduced by 28,500 (cerveroliceras et al., 2014: 101).17 in addition, the cuts have disproportionately affected certain areas, such as public health programs (legido-quigley et al., 2013). secondly, privatization trends in the health sector should be considered in the broader context of commodification processes. this makes them especially problematic from the point of view of the right to health, since the functional logic of social rights is precisely the opposite, that of decommodification (esping-andersen, 1990: 37ss.). public health privatization is not legally prohibited at the national or international level, but it can undermine the effectiveness of the right to health (toebes, 2006: 107; escobar roca, 2008: 543). act 15/1997, of april 25, on enabling new forms of management of the national health system, laid out the legal basis for privatization in the health sector. this trend was reinforced by the responses to the 2008 crisis, albeit with wide disparities across autonomous regions, and has manifested itself in different ways: deregulating public health services, separating financing from provision, granting the management of public centers 15 on a comparative level, some european countries implemented budget cuts, particularly in the hospital and pharmaceutical field, restructured hospital services, froze salaries, reduced the services provided by the public health system, reduced the population covered and introduced copayments (karanikolos et al., 2013: 1325). 16 on the contrary, after a thorough review of the relevant literature, gremmill et al. conclude that copayments are only efficient in the narrowest economic sense: on the one hand, they do not lead to long-term spending reduction but only end up shifting costs; on the other hand, there is evidence of negative health outcomes and worse treatment adherence rates; finally, “international evidence consistently demonstrates that user charges are a regressive form of health care finance, requiring the poor to pay more for health care as a proportion of their income than the rich” (gremmill et al. 2008). 17 between 2011 and 2015, 3,000 doctors, 5,000 nurses and 40,000 other health care jobs were lost due to budget cuts (cabrera et al., 2018: 1095). carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 229 to private operators and also favoring private insurance. privatization trends have followed complex paths, including changes in the composition of health expenditure. according to santos’s analysis, a common mechanism is the modification of public spending on social policies, seeking to attract private capital to the production of these goods and services. hence, public social spending is redirected to equipment production instead of laborintensive policies (santos 1992:210).18 another aspect of the drive towards privatization was the adoption of measures promoting complementary private insurance for coverage not included in the public system (legido-quigley et al. 2013). this was especially the case in those autonomous regions most affected by cuts, where the perception of the deterioration of public health was greater (foessa, 2019: 334). finally, segmentation was one of the main consequences of rdl 16/2012, since to be covered by the public health care system the condition of insured or beneficiary of an insured person was subject to certain requirements (mostly linked to employment status). at its most extreme, this segmentation entailed the expulsion19 of entire groups— mainly foreigners in an irregular situation—who came to exceed 900,000 (foessa, 2019: 333).20 conceptually, in addition to the consequences of each specific expulsion, this implied an abandonment of the universal logic underlying the notion of rights and— although nominally maintained—the abandonment of very logic of the national health system itself. it meant, in short, the abandonment of the idea of the right to citizenship in favor of an insurance logic. this situation was reversed by royal decree-law 7/2018, of july 27, on universal access to the national health system, which expressly returned to a rights-based logic by establishing that, “all spanish nationals and foreign nationals resident in spain are entitled to the right to health and health care.” in any event, beyond the specific consequences of rdl 16/2012 after 6 years in force, one of the most lasting effects was the validation of its constitutionality—except for some minor aspects—by judgment 139/2016 of the spanish constitutional court. indeed, even if the most unacceptable aspects of the health counter-reform were corrected in 2018, judgment 139/2016 is problematic both from the point of view of the universal nature of the right and in terms of regressivity. while acknowledging a decline in the universality of the right, the constitutional court ruled that the benefitproviding dimension of the right to health did not necessarily entail that all health care services be free for all persons. therefore, ordinary legislation (being a statutorily-defined right) could establish access conditions—especially for aliens. the constitutional court departed from its own case law, established in order 239/2012, where it had rightly noted that the general economic interest associated with savings had to be weighed against the general interest in preserving the right to health. furthermore, it had pointed out 18 the autonomous region of madrid provides a clear example in this regard: 8 new hospitals opened in 2008 within the public health network under major private construction contracts and whose management was granted to private companies. at the same time, between 2008 and 2010, 2,771 hospital professionals were lost. 19 according to sassen, expulsion logics are increasingly intertwined with neoliberal policies, either through expulsion from livelihoods, from membership or from the social contract (sassen, 2014: 29). 20 public health care was reduced to emergencies due to serious illness or accident, childbirth and postpartum care, and children under 18. the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 230 that the right to health together with the right to physical integrity “possess a singular importance in the constitutional framework and cannot be seen as diminished for the mere consideration of an eventual economic saving” (legal ground no. 5). along the same lines, the united nations committee on economic, social and cultural rights, in its “concluding observations on the sixth periodic report of spain,” stressed both its concern about the regressive effects of this provision on the right to health and the fact that “no comprehensive impact assessment has been carried out with regard to this law” (unesc, 2018: 8). in short, the existing legal limitations and guarantees—including under international human rights law—that require a weighing exercise to justify regressive measures (añón, 2016) do not seem to have applied to this case by the constitutional court, which is legally problematic. therefore, the spanish authorities did not weigh the potential rights implications of the measures at the time of their adoption. nor was there an official ex-post evaluation of their actual impact on the right to the highest attainable standard of health, as recommended by the committee on economic, social and cultural rights. therefore, an assessment of the effects of the austerity measures on the right to health should now be made, not in order to justify whether or not they were appropriate, but to determine to what extent they affected the capacities of the health system and to assess the state of the right to health at a time when it is necessary to respond to the covid-19 pandemic. 3.2. the consequences of the austerity policies in health care before addressing the general health effects of austerity policies in the next section, we now focus on the austerity measures that specifically affect the health protection system. generally speaking, there is sufficient evidence that austerity measures can affect health. in this regard, stuckler and basu carried out a global study on the health consequences of times of recession. based on evidence from historical and present examples, they show that the health of populations is not necessarily affected—and sometimes even improves—in situations of economic crisis. therefore, they conclude that “the real danger to public health is not recession per se, but austerity” (stuckler and basu, 2013: xiv). however, besides this general conclusion, another question that remains is the extent to which health cuts and other austerity policies can affect health outcomes in developed countries with large health budgets. in a study on the health consequences of austerity policies in italy, arcà shows that they can lead to a significant increase in the number of preventable deaths (arcà et al., 2020). this study is particularly relevant, since only 10 out of 20 italian regions (mainly in the south) implemented such cuts, generating a sort of natural experiment that made possible a controlled assessment of these policies. between 2004 and 2014, the regions affected by austerity plans experienced a 3.8% cut in spending, leading to a 3% increase in preventable deaths, largely related to cancer. among the plausible causes for this increase, the study considers the reduction in hospital beds (6.5%), in health care workers (4%) and in hospitalization rates (8.5%). since only some regions implemented those plans, some patients who had the means sought health care in the northern part of the country. deficit reduction objectives were achieved, but at the cost carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 231 of an increase in preventable deaths as well as an increase in inequality in access to health care both across and within regions. no similar study is available in spain, among other reasons because the situation was different (in the sense of austerity policies being implemented only in some regions). despite the significant disparities across autonomous regions, all of them were affected by budget restrictions under a general austerity framework. in any event, after analyzing health expenditure data from different autonomous regions between 2008 and 2012, vallejo-torres et al. concluded that health expenditure has a positive effect on population health (vallejo-torres et al., 2018), even if this study does not measure the distinctive effect of austerity measures compared to other periods. in another significant study, borra et al. analyze the period 1996-2015 taking as a reference not health expenditure but certain health care inputs such as health workers or available hospital beds, as well as the consequences in terms of mortality rates for specific diseases. their main finding is that the short-term effects of cuts in health provision have a significant—albeit small—impact on mortality (borra et al., 2020).21 nevertheless, it should be borne in mind that this study refers only to increases in mortality caused by these reductions, and only in the short term. in other words, it is possible to consider health effects that do not result in mortality, as well as medium-term effects, which are not considered in this study. from a different standpoint, according to a qualitative study conducted in the autonomous region of valencia, the general perception of health professionals was that the austerity measures adopted in the health sector hampered access to medicines and health care. in general, and according to their experience, they considered that austerity measures had had a negative effect both on the quality of the public health care system and, in general, on the health of the population (cervero-liceras et al., 2014).22 in sum, it is complicated to make an accurate assessment of the effects of austerity measures on the health system due to the scarcity of data and the possible mediumterm consequences (lópez valcárcel and barber, 2017)—a problem common to other european countries (karanikolos, 2013: 1325). likewise, it is difficult to distinguish between the effects due to this and to other causes. the precariousness of these indicators is a problem inherent to the information mechanisms of the health system, as it hinders a real policy evaluation. however, everything suggests that these policies had significant consequences, thus supporting the hypothesis that the public health system was placed under great pressure and pushed to the limit of its capacity. this, in turn, made it difficult to respond more adequately to the covid-19 pandemic. the same reasons explain the setback to the right to health associated with austerity policies in the health system. 4. social crisis, inequality and the social determinants of health. economic downturns do not necessarily have negative effects on the general health of the population (ruhm, 2000; stuckler and basu, 2013; karanikolos et al., 2013: 1325; regidor et al., 2019: 1046). there are plausible explanations for this counterintuitive observation: an increase in beneficial activities (exercise), a reduction in the consumption of unhealthy foods and beverages, or fewer traffic accidents. that does not mean that all the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 232 the effects of economic crises are harmless: for instance, high unemployment is generally associated with health problems. indeed, the prevalence of psychological problems is more than twice as high among unemployed people, especially in countries with poor employment protection. unemployment—particularly long-term unemployment—is also linked to higher mortality and an increase in unhealthy behaviors. moreover, it increases the risk of psychological and behavioral disorders, as well as psychosomatic illnesses and suicides (karanikolos et al., 2013: 1326). accordingly, the policies implemented to deal with a crisis are even more relevant to health outcomes than the direct effects of the crisis itself (stuckler and basu, 2013; calvo, 2013). thus, for example, maintaining the budget for protection programs in sectors other than health may be as important for protecting the population’s health as avoiding cuts in budget allocations to the health system (karanikolos et al., 2013: 1326). this is known as the “social risk effect” (stuckler et a. 2017: 18) on health stemming from austerity policies. it refers not to the health system but to issues as increased unemployment, inequality, poverty, and cuts in social programs aimed at mitigating these effects. this effect is largely related to social determinants of health (sdh), i.e., social factors that significantly affect health and drive different health outcomes across or within populations. the who defines sdh as “the non-medical factors that influence health outcomes. they are the conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life. these forces and systems include economic policies and systems, development agendas, social norms, social policies and political systems.”23 sdh are present in every society, they are not supervening circumstances caused by an economic crisis. rather, economic crises, and the corresponding responses, affect social determinants of health such as—in the above example—employment, unemployment, working conditions, and the associated social policies. the impact of sdh on the health of individuals and populations manifests itself in at least two noteworthy ways: (i) they affect the level of a population’s health; and (ii) they affect health inequalities. the way in which sdh affect the level of health of a population is clearly perceptible, for example, in global health disparities associated with economic development or in the historic evolution of health indicators in the last century and a half, when social factors had greater incidence than the advances in clinical medicine itself (mckeown, 1976; house and williams, 2000: 97). second, the impact of sdh is visible in social and health inequalities. research on social determinants of health has found a systematic correlation between social advantages/disadvantages and health outcomes (hofrichter, 2000; bartley, 2004; marmot and wilkinson, 2006). social inequalities translate into health inequalities, thus amplifying social inequality. inequalities in health outcomes occur even when equal access to health care is effectively guaranteed, which confirms that sdh operate beyond—and relatively independently of—health care. as a result of the covid-19 pandemic, the relationship between disease and inequality has become transparent and evident to many observers. this correlation was already well 23 https://www.who.int/health-topics/social-determinants-of-health#tab=tab_1 (last accessed january 11, 2021). see also commission on social determinants of health (2008) and who (2016). https://www.who.int/health-topics/social-determinants-of-health#tab=tab_1 carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 233 known in the field of epidemiology and public health but has not always been given due consideration outside it. it has now come to the forefront. indeed, the relationship between disease and inequality—linked to the concept of syndemic—has manifested itself in the fact that covid-driven inequalities are related to previous socioeconomic inequalities and the unequal distribution of non-communicable diseases. therefore, covid-19 is not neutral in social terms. vulnerability to the disease is connected to preexisting social vulnerabilities (minorities, deprived areas, poverty, marginalized groups, etc.). likewise, disease control measures such as confinements have a social uneven impact. (bambra et al., 2020). in spain, the “social risk effect” associated with changes in sdh due to the economic crisis and austerity became visible, for instance, in higher unemployment, poverty, and social inequality. this may have greater impact on health than direct actions regarding the health system. in the words of lópez-valcárcel and barber, “rising unemployment and poverty, as a result of the crisis, are health risk factors that are much more intense than cutbacks in health spending” (lópez valcarcel and barber, 2017). unemployment data are well known: the unemployment rate in 2008 was already significantly higher than the eu average (11.3% compared to 7%), and it reached its zenith at 26% in 2013 (10.8% in the eu), only behind greece. this meant a total of 6,200,000 unemployed. still in 2019, unemployment in spain remained above 2008 levels (14.1% compared to 6.3% in the eu).24 and this without considering the deterioration of employment conditions, the increase in job insecurity or the wage gap. poverty and social exclusion also reached extremely high figures: in 2013, 25% of the population was in a situation of social exclusion (moderate or severe), while only 34.1% enjoyed full integration (foessa, 2019: 213)25. although in 2019 social exclusion had fallen to 18.4%, the number of people in severe exclusion exceeded four million, 44% more than in 2007 (foessa, 2019: 213). in terms of poverty, 7.3% of households were in extreme poverty in 2013 (foessa, 2014: 159). in terms of inequality, spain is not only above the european average, but over the past decade inequality has increased significantly. spain's gini index was 32.4 in 2008 and reached the peak of highest inequality in 2014, with 34.7. in 2019, it was still at 33. throughout this period, the eu average remained at 30.26 other inequality indicators, such as inequality of income distribution, show similar results. as regards the income quintile share ratio, which is the ratio of total income received by the 20% of the population with the highest income (top quintile) to that received by the 20% of the population with the lowest income (lowest quintile),27 the eu average remained around 5 (5.01 in 2008 and 24 https://ec.europa.eu/eurostat/databrowser/view/tps00203/default/table?lang=en 25 the concept of social exclusion used in the foessa report is much more restrictive than economic poverty, since it combines several social problems beyond the lack of sufficient income. 26 https://ec.europa.eu/eurostat/web/income-and-living-conditions/data/main-tables 27 https://ec.europa.eu/eurostat/databrowser/view/tespm151/default/table?lang=en https://ec.europa.eu/eurostat/databrowser/view/tps00203/default/table?lang=en https://ec.europa.eu/eurostat/web/income-and-living-conditions/data/main-tables https://ec.europa.eu/eurostat/databrowser/view/tespm151/default/table?lang=en the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 234 5.09 in 2019), while spain was above the average, with 5.59 in 2008, reaching 6.87 in 2015 and still at 5.94 in 2019. it seems clear that all these indicators point to a worsening of sdh as relevant as employment, social exclusion and inequality. 2013 and 2014 were the worst years, followed by a slow recovery that never reached pre-crisis levels. all scientific evidence on sdh suggest that this would affect the health of the population, also leading to an increase in health inequalities between social groups with a disproportionate impact on the most vulnerable sectors. on the one hand, there are questions as to what extent this can be quantified and how (separately from health system aspects). on the other, it is uncertain whether these effects will be immediately perceptible or will manifest themselves over longer time periods. in fact, the “life course approach” to the sdh has focused on the longterm consequences—especially of conditions experienced in early childhood (bartley, 2004: 8), which point to lingering effects over time. regarding short-term consequences, there has been controversy surrounding possible increases in mortality related to austerity policies. according to cabrera de león, there was a significant increase in mortality between 2011 and 2015 attributable to austerity policies (cabrera de león et al., 2018). however, the alternative regidor’s analysis seems more plausible. in his opinion, the increase in mortality was not so significant (it was only noticeable in 2012 and 2015 within a general context of decline), and in any event it cannot be attributed separately to these policies, taking into account the increased incidence of influenza and summer heat waves in those years (regidor et al., 2019). in any event, the health effects of the austerity measures implemented in spain will most likely not be immediate (lópez valcarcel and barber, 2017), and in the short term there are no such extreme manifestations as a significant increase in mortality. there does seem to be evidence of an increase in suicides in that period, although some doubts remain as to their actual quantification (regidor et al., 2019: 1047). there was also a 20% increase in severe depressions (cervero-liceras et al., 2014). despite all these circumstances, certain indirect health indicators remain comparatively good. life expectancy at birth remains high, leading the european union (together with italy), although the gap with the european average has decreased from 6.1 years in 2005 to 5 years in 2019.28 however, life expectancy does not run parallel to healthy life years—68 years is above the european average but still far from sweden's 72.8 years, based on 2018 data.29 with regard to inequalities in health outcomes between socioeconomic groups in terms of difference in life expectancy, spain’s results continue to be comparatively good. in a study for 15 european countries with data from 2010-2014, spain showed the smallest difference in partial life expectancy among people aged between 35 and 80 with different levels of education. in all the countries, people with lower levels of education had shorter partial life expectancy, but the average was 3.6 years for men and 1.7 for 28 https://ourworldindata.org/life-expectancy 29 https://ec.europa.eu/eurostat/databrowser/view/hlth_hlye/default/table?lang=en https://ourworldindata.org/life-expectancy https://ec.europa.eu/eurostat/databrowser/view/hlth_hlye/default/table?lang=en carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 235 women, while in spain it was reduced to 2.1 and 0.6 respectively (mackenbach et al., 2019). data from the following years will allow us to determine whether this difference has been increasing, according to medium-term projections based on the deterioration of certain sdh. 5. elements for strengthening the right to health. the previous sections point at some alarming issues regarding the management of the pandemic as it has come to the fore. this is not to paint a gloomy picture of the state of the right to health in spain, but to draw attention to some aspects and trends that should be addressed and reversed. on the one hand, policies of cutbacks, commodification and exclusion can have a negative effect on health outcomes. empirical evidence shows these negative effects, even if it is not possible to determine exactly the relative weight of the possible causes. in any case, the consequences of these policies do not usually manifest themselves immediately, so their full effects will probably only be felt in the medium term. on the other hand, the consequences of the economic and social crisis in terms of unemployment, vulnerability and inequality, as well as the relevant social responses, affect health beyond their effects on health systems. indeed, they are social determinants of health. of particular concern, therefore, is the issue of inequality and the increase in the unequal distribution of health determinants. in this area, too, the effects on the health of individuals and populations may manifest themselves primarily, but inexorably, over longer periods of time. reversing the causes of these results requires measures that contribute to strengthening the right to health in all its aspects. these are not utopian proposals, since some neighboring countries provide examples of realistic, attainable goals. the equalization of health expenditure in relation to gdp with the best benchmarks, for example, takes as a reference the country’s own economic reality, not an ideal, unfeasible model. it is possible to offer some tentative examples of this type of measures. to begin with, we should seriously adopt a rights-based approach to health, particularly the right to health. this has several implications. first, health care must be seen as a social citizenship right not dependent on other conditions (such as employment status), and which cannot be replaced by approaches based on subsidiarity or charity. second, the idea of entitlement implies the idea of universality, of an equal right for all people, something that should not be called into question. third, it must be seen as a right to the determinants of health, which implies a double—health care and social— dimension. fourth, the international “highest attainable standard of health” requires that any possible regression must be justified as an exceptional measure. fifth, real safeguard mechanisms are needed to shield or secure the core content of the right from circumstantial political decisions. extreme and exceptional circumstances like the current pandemic, are occasions to strengthen this rights-based approach, not to set it aside. a second proposal is to strengthen a non-commodified public health system. the rights-based approach also opposes commodification. acknowledging health as a right means that access to it should not be at the mercy of the market or dependent on the the right to health and the social determinants of health in the face of covid-19. the spanish experience after austerity policies the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 236 ability to pay. it is simply outrageous to deny someone access to minimal health care or to undermine their outcomes because of their inability to pay or their socioeconomic status. the priority must be the health of individuals and populations rather than business or private profit opportunities. that is why health policy priorities must be set according to scientific evidence as to which social and health policies are the most effective in protecting health. if we commit to a public system, it must give everyone access, far from subsidiary or exclusive approaches. this requirement stems not only from the need to ensure the right to health for all, but also from a demand for real and effective equality. this, in turn, requires a commitment to support the financing efforts. the third idea is therefore related to a well-financed health system. the “highest attainable standard of health” does not demand the impossible, it does not impose obligations beyond what is economically and financially feasible. it is thus linked, among other things, to the country’s wealth and development. the above figures indicate that public spending on health in relation to gdp is far from skyrocketing; it is neither “unsustainable” nor “beyond our means,” to quote the oft-repeated rhetoric. the fourth idea is that of an integral health system. primary care, community health and public health have traditionally been neglected in health policy priorities. in the wake of the recent crisis, they have also experienced the greatest cuts. it is necessary to prioritize them, just as it is necessary to take decisive action on the social determinants of health. the challenge is not to lose the results achieved by the public health system and to incorporate this integral approach to health that gives more attention to the social health and public health aspects. public health crises like the covid-19 pandemic make this idea evident, but the integral health approach contributes to improve health in any circumstances. only in this way will it be possible to guarantee true equality and equity in the protection of the right to health. the fifth idea refers to a democratic health system. citizen and community participation in collective health and in the health system itself is not alien to the development of the right to health in spain. in fact, it is present in the general health act in at least two aspects. on the one hand, the general health act provides a set of mechanisms so that the holders of the right to health can demand compliance from public authorities, while at the same time establishing and systematizing a patients’ bill of rights. but, above all, it allows for community participation, since the patient’s bill of rights includes the right “to participate through community institutions in health activities” (art. 10(10)). these provisions remained little more than wishful thinking, and in fact were reduced to the possibility of participation through the nhs council for social participation (consejo de participación social)—where only trade unions and business associations are represented in addition to public authorities. the social response to the attacks on the right to health is a living example of this participation outside institutional channels: there is a civic energy that is not content with merely enjoying health services or passively watching their deterioration. the sixth idea is the promotion of health equity. in addition to guaranteeing the right to health, public health systems that provide universal and quality care generate social equality: carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 237 few public policies can be more effective for equality than health policies. however, not even the most sophisticated among these systems have been able to break the link between socioeconomics and health outcomes. that is due to the sdh. even with equal access to the health system, health outcomes vary according to social and economic hierarchies. such inequalities are profoundly unjust and call into question the right to health, which thus ends up not being equal for all. the right to health cannot be limited to the universal and equal right to health care, even if this is an indispensable minimum. it must be extended, because the right to health care alone cannot guarantee the health of all people in the same way and under equal conditions. the imperative of justice demands to prioritize action on the social determinants of health in order to achieve minimum health equity—ensuring that everyone’s right to health is guaranteed without arbitrary differences. the above are just a few ideas for strengthening the right to health in spain, trying to cast a positive light on an analysis that has revealed certain shortcomings—and some strengths. naturally, there are many other specific aspects. however, if the initial diagnosis (namely, that the difficulties in confronting the covid-19 pandemic emerged in a framework that “had depleted the health workforce and reduced public health and health system capacities”) is true, the urgent fight against the pandemic will have to be combined with a far-reaching look at the consolidation and improvement of the health system, as well as the guarantee of the right to health. according to the assess of the right to health that this article suggests, the improvement of its guarantee must address in its twofold dimension: health care and social determinants of health. references ai, amnestiy international (2020) abandonadas a su suerte. la 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(2017) austerity and health: the impact in the uk and europe. european journal of public health, 27(4):18-21. https://doi.org/10.1093/eurpub/ckx167 https://www.mscbs.gob.es/profesionales/saludpublica/ccayes/alertasactual/ncov/documentos/aspectoseticos_en_situaciones_de_pandemia.pdf https://www.mscbs.gob.es/profesionales/saludpublica/ccayes/alertasactual/ncov/documentos/aspectoseticos_en_situaciones_de_pandemia.pdf https://doi.org/10.1787/82129230-en https://doi.org/10.1016/s2212-5671(15)00568-7 https://doi.org/10.1016/s2212-5671(15)00568-7 https://doi.org/10.1016/s0140-6736(20)31483-5 https://doi.org/10.2105/ajph.2019.305075 https://doi.org/10.1162/003355300554872 https://doi.org/10.4159/9780674369818 https://doi.org/10.1002/hast.1113 https://doi.org/10.1002/hast.1113 https://doi.org/10.1093/eurpub/ckx167 carlos lema añón the age of human rights journal, 16 (june 2021) pp. 220-241 issn: 2340-9592 doi: 10.17561/tahrj.v16.6326 241 the lancet (2020) covid-19 in spain: a predictable storm?. the lancet. public health, 5(11):e568. https://doi.org/10.1016/s2468-2667(20)30239-5 toebes b (2006) the right to health and the privatization of national health systems: the case study of the netherlands. health and human rights, 9(1):103-127. https://doi. org/10.2307/4065392 united nations economic and social councilcommittee on economic, social and cultural rights un-esc (2018) “concluding observations on the sixth periodic report of spain”, e/c.12/esp/co/6, 25 april 2018, http://docstore.ohchr.org/selfservices/ fileshandler.ashx?enc=4slq6qsmlbedzfeovlcuw1skyxvprlxeitt 1ipv5tsg80elh30lp%2burw%2fv0pmkqcf61ticgbfud%2be8x0cf6 wyym778upzlrublhj9r0bs0el2j7qf7utzvrurdknocu0 united nations committee on economic, social and cultural rights (cescr) (2000) general comment no. 14: the right to the highest attainable standard of health (art. 12 of the covenant), 11 august 2000, e/c.12/2000/4 vallejo-torres l, garcía-lorenzo b, serrano-aguilar p (2018) estimating a costeffectiveness threshold for the spanish nhs. health economics, 27(4):746-61. https://doi.org/10.1002/hec.3633 world health organization (who) (2016), social justice and human rights as a framework for addressing social determinants of health. final report of the task group on equity, equality and human rights. review of social determinants of health and the health divide in the who european region. copenhagen: who. received: february 18th 2021 accepted: april 30th 2021 https://doi.org/10.1016/s2468-2667(20)30239-5 https://doi.org/10.2307/4065392 https://doi.org/10.2307/4065392 http://docstore.ohchr.org/selfservices/fileshandler.ashx?enc=4slq6qsmlbedzfeovlcuw1skyxvprlxeitt1ipv5tsg80elh30lp%2burw%2fv0pmkqcf61ticgbfud%2be8x0cf6wyym778upzlrublhj9r0bs0el2j7qf7utzvrurdknocu0 http://docstore.ohchr.org/selfservices/fileshandler.ashx?enc=4slq6qsmlbedzfeovlcuw1skyxvprlxeitt1ipv5tsg80elh30lp%2burw%2fv0pmkqcf61ticgbfud%2be8x0cf6wyym778upzlrublhj9r0bs0el2j7qf7utzvrurdknocu0 http://docstore.ohchr.org/selfservices/fileshandler.ashx?enc=4slq6qsmlbedzfeovlcuw1skyxvprlxeitt1ipv5tsg80elh30lp%2burw%2fv0pmkqcf61ticgbfud%2be8x0cf6wyym778upzlrublhj9r0bs0el2j7qf7utzvrurdknocu0 http://docstore.ohchr.org/selfservices/fileshandler.ashx?enc=4slq6qsmlbedzfeovlcuw1skyxvprlxeitt1ipv5tsg80elh30lp%2burw%2fv0pmkqcf61ticgbfud%2be8x0cf6wyym778upzlrublhj9r0bs0el2j7qf7utzvrurdknocu0 https://doi.org/10.1002/hec.3633 the right to health and the social determinants of health in the face of covid-19. the spanish exper abstract 1. the impact of the covid-19 pandemic 2. the evolution of the right to health in spain 3. the consequences of austerity policies on the health system 3.1. the legal framework of the austerity policies in health care 3.2. the consequences of the austerity policies in health care 4. social crisis, inequality and the social determinants of health 5. elements for strengthening the right to health references the european court of human rights’ engagement with international human rights instruments: looking at the cases of domestic violence the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 79 the european court of human rights’ engagement with international human rights instruments: looking at the cases of domestic violence ebru demir1 abstract: in its recent jurisprudence on domestic violence, the european court of human rights has started to examine domestic violence cases in the light of relevant international human rights law developed in this specific area. this article examines the engagement of the european court of human rights with other international and regional human rights instruments in domestic violence cases. upon examination, the article concludes that by integrating its case law into international human rights law the european court of human rights broadens the scope of protection for domestic violence victims and maintains the coherence of international law. keywords: ecthr; echr; domestic violence cases; international and regional human rights instruments; living instrument; fragmentation. summary: i. introduction; ii. opuz v turkey: placing the echr within international human rights law; iii. engagement with relevant international law in post-opuz domestic violence cases: gone too far?; iv. conclusion. i. introduction the european convention on human rights (the echr or the convention), signed on 4 november 1950, is widely regarded as one of the most influential human rights treaties. for more than seven decades, the convention has never ceased to be a significant instrument in international law. this is because the convention as a “living instrument” (dzehtsiarou, 2011; mowbray, 2005; theil, 2017) is interpreted by the european court of human rights (the ecthr or the court) “in light of the present-day conditions” (tyrer v uk para 31) and implemented in a dynamic and evolutive way. to maintain the dynamism and effectiveness of the convention, the ecthr interprets it in the light of other international human rights documents and jurisprudence. the court considers the convention a living instrument and pays significant attention to common values and emerging consensus in international law while interpreting it (letsas, 2013: 122). the court places the echr within wider and ever-growing international human rights law in a way that maintains the coherence of international law (rachovitsa, 2015: 873). this article, by engaging specifically with domestic violence cases before the ecthr, shows how the court’s integrated approach provides stronger protection for 1 dr lecturer, ankara yildirim beyazit university faculty of law, turkey (ebrudemir@ybu.edu.tr) orcid: 0000-0003-2529-3383 mailto:ebrudemir@ybu.edu.tr the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 80 victims of domestic violence. the article argues that the ecthr’s effective use of the convention can only be ensured by more integration of both international and regional human rights instruments in this area. this article focuses on the ecthr’s jurisprudence on domestic violence and shows the ways in which the court engages with other relevant international human rights instruments in its judgements. the second section will examine the landmark case of opuz v turkey (2009). the ecthr tackled domestic violence cases before opuz v turkey;2 however, this judgment differs from the previous decisions and creates a turning point in the ecthr’s jurisprudence. with opuz v turkey, the court for the first time recognized violence against women as a systemic problem which amounts to a form of discrimination under the convention. the passivity of the authorities in the case of opuz v turkey was connected, by the court, to the wider negligence and even condoning of domestic violence on the part of the authorities in the country. thus, the court for the first time considered a breach of article 14 (prohibition of discrimination) in a domestic violence case. the section will illustrate the ways in which the ecthr engaged with relevant international human rights law in this case. the third section will focus on the domestic violence cases brought to the ecthr after opuz v turkey. they will be called “post-opuz cases” in this article. as in opuz v turkey, the ecthr interpreted the convention in the light of the relevant human rights instruments in these cases as well. in post-opuz cases the ecthr, in addition to the convention on the elimination of all forms of discrimination against women (the cedaw) of 1979, engaged with regional human rights treaties such as the council of europe convention on preventing and combating violence against women and domestic violence (widely known as the istanbul convention) of 2011. the article will conclude that engagement with international and regional human rights instruments makes effective use of the convention, provides stronger protection for victims of domestic violence, and maintains the coherence of international law. ii. opuz v turkey: placing the echr within international human rights law opuz v turkey (2009) is a very typical domestic violence case which includes an escalation in violence against a woman and passivity on the part of the authorities. nahide opuz (the applicant) was a turkish national who lived in diyarbakır (a province in south-eastern turkey). in 1995, nahide opuz married h.o., who was the son of her mother’s then-husband, a.o. on 10 april 1995, both the applicant and her mother filed a complaint and reported that h.o. and a.o. had beaten them and threatened to kill them. the medical report stated that the injuries rendered both the applicant and her mother unfit to work for five days (opuz v turkey para 10). the public prosecutor filed indictments against h.o. and a.o. for the assaults and death threats. however, when the applicant and her mother withdrew their complaints, the public prosecutor decided not to pursue 2 for instance, bevacqua and s v bulgaria app no 71127/01 (ecthr, 12 june 2008). ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 81 the case. on 11 april 1996, h.o. beat the applicant and caused serious harm again. the medical report concluded that “the applicant’s injuries were sufficient to endanger [the applicant’s] life.” (ibid para 13) the public prosecutor thereupon requested that h.o. be detained for questioning. the applicant was complainant at the hearing. however, h.o. was released by the court pending a trial since the applicant had recovered from the bodily harm caused by h.o. on 13 june 1996, the applicant withdrew her complaint, and the public prosecutor discontinued the case. on the third reported assault against the applicant and her mother in february 1998, h.o. used a knife and caused serious injuries which rendered both the applicant and her mother unfit for work for three and five days respectively. on 6 march 1998, the public prosecutor found no evidence to prosecute h.o. and decided not to pursue the case since there had been no public interest in pursuing the case. on 4 march 1998 h.o. ran his car into the applicant and her mother. in his testimony, h.o. stated that the applicant and her mother had thrown themselves in front of the car. the applicant reported that her husband intended to kill them with his car. on 9 july 1998, however, the applicant and her mother changed their testimonies. they both confirmed h.o.’s testimony and withdrew their complaints. on 17 november 1998, the court decided that, even though the complaints were withdrawn, as a result of the severity of the injuries h.o. could be still convicted of the offence (ibid para 36). however, consequently the court imposed only a fine. the violence against the applicant and her mother increasingly continued. on 29 october 2001, the applicant was hospitalised due to seven stab wounds. according to the hospital report, these wounds were not life-threatening. the public prosecutor imposed only a fine for the knife assault on the applicant. although a month later the applicant filed a complaint alleging that her husband had been constantly threatening her, the public prosecutor found no evidence to prosecute the husband. after the incident on 29 october 2001, the applicant started living with her mother. due to the life threats from h.o., the applicant and her mother decided to move to another city in turkey (i̇zmir) in order to escape from h.o.’s violence. when h.o. found out about their escape plan, he shot the applicant’s mother and killed her. in his testimony, h.o. stated that her mother-in-law was leading her wife to “an immoral life” and he killed her “for the sake of his honour and children.” (ibid para 56) the domestic court considered that h.o. was provoked by the deceased and in addition, due to his good conduct during the hearings he was charged with 15 years and 10 months’ imprisonment. consequently, h.o. had been released pending the appeal proceedings and continued threatening the applicant with death. the applicant, thereupon, brought the case to the ecthr as a last resort. for the first time in a domestic violence case, the ecthr concluded that, in conjunction with article 2 (right to life) and article 3 (freedom from torture, inhuman or degrading treatment or punishment), article 14 (prohibition of discrimination) had been violated by the state party. in its judgment, the court stated: “[b]earing in mind […] the general and discriminatory judicial passivity in turkey, albeit unintentional, mainly affected women, the court considers that the violence suffered by the applicant and her mother may be regarded the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 82 as gender-based violence which is a form of discrimination against women.” (ibid para 200) according to the court, the overall unresponsiveness of the judicial system and impunity enjoyed by the perpetrators of domestic violence in a particular region of turkey “indicated that there was insufficient commitment to take appropriate action to address domestic violence” (ibid). opuz v turkey importantly points out that the authorities’ failure to act with due diligence to prevent the recurrence of violent attacks is genderbased discrimination and therefore amounts to discrimination on the basis of sex under article 14 of the echr (ibid para 169). the decision created “trickle-down effects” in turkey. the recognition of the ineffectiveness of the legal and executive bodies by the ecthr highlighted the need for structural change and in a way “forced” turkey to adopt a new law on violence against women in march 2012 (sönmez, 2020: 15). with opuz v turkey, the ecthr underlined the ineffectiveness of turkey’s criminal justice system in domestic violence cases. in this case, as an international human rights court, the ecthr forced a state party’s domestic criminal justice system to take an effective action (erbas, 2020: 222). as françoise tulkens pointed out, the ecthr often uses “criminal law to reinforce and safeguard more effectively the rights of victims of infringements of fundamental rights.” (tulkens, 2011: 584) in opuz v turkey, in order to protect the applicant’s fundamental rights and freedoms, the court regarded an efficient criminal justice system as essential. the close relationship between human rights law and criminal law became prominent in opuz v turkey (see erbas, 2021). opuz v turkey was a case in which the ecthr successfully identified the power dynamics between victims and perpetrators of domestic violence. it is widely known that domestic violence victims drop charges “when the legal process fails to assure them that the decision to prosecute is safer than staying in the violent relationship.” (corsilles, 1994: 872–873) in other words, when sufficient protection is not provided, the victims are afraid of retaliation and often decide to withdraw their complaints and/or to stay in violent and abusive relationships. in opuz v turkey, the applicant and her mother dropped charges and withdrew their complaints a number of times (opuz v turkey para 18). turkey claimed that each time the authorities commenced criminal proceedings, the applicant and her mother decided to terminate the proceedings, and this inhibited any interference by the authorities (ibid para 137). importantly, the court dismissed these claims and held that the authorities “have given exclusive weight to the need to refrain from interfering in what they perceived to be a ‘family matter’…” and have failed to pay sufficient attention to the motives behind the withdrawal of the complaints (ibid para 143). the ecthr’s approach to the withdrawal of charges in domestic violence cases “provide[s] a useful blueprint for evaluating the reasonableness of state intervention” when the domestic violence victims decline to pursue the proceedings (goldscheid and liebowitz, 2015: 339). in opuz v turkey, for the first time, the court determined a state party’s obligations when investigating domestic violence cases and highlighted the fact that gender stereotypes might seriously hamper women’s access to justice (murphy, 2019: 1351). the judgment declared that the attitude of those in charge resulted in or exacerbated the violence endured ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 83 by the applicant and her mother (bessant, 2015: 106). the state party’s negligence and eventually failure to protect the applicant and her mother was considered to be highly related to the stereotypes and prejudice against women in turkey (fredman, 2019: 132). the state party’s discriminatory attitude was identified and article 14 was interpreted “as entailing an obligation to protect.” (arnardóttir, 2017: 152) opuz v turkey made it clear that treating a case of domestic violence as a private matter is no longer an option for the states parties to the echr (bessant, 2015: 110). with this decision, the court recognized that domestic violence is a systemic problem which goes beyond the individual cases at hand and reflects a fundamental imbalance of power and culture of impunity (abdel-monem, 2009: 32). the case builds on the court’s recent jurisprudence in which the court increasingly adopts a “vulnerable groups” approach under article 14.3 (arnardóttir, 2014; peroni and timmer, 2013) with opuz v turkey, this approach was used by the court for the first time in order to protect women in southeastern turkey as a vulnerable group. such an innovative interpretation of article 14 in relation to gender-based violence was made possible by engaging extensively with the relevant international human rights instruments on the issue, in particular the cedaw. the court held that when considering the definition and scope of discrimination against women, it has to take into account the definitions provided by specialised international human rights instruments on the issue of violence against women (opuz v turkey para 185). in its judgment, the ecthr relied heavily on the cedaw especially when defining “discrimination against women” and underlining the obligations of the states parties under the cedaw. the cedaw in article 1 defines “discrimination against women” as: “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (convention on the elimination of all forms of discrimination against women art 1) the cedaw in article 2 obliges the states parties to “condemn discrimination against women in all its forms” (ibid art 2) and “to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.” (ibid art 2.e.) as carmelo danisi pointed out, even though the ecthr had found violations of article 2 and article 3 of the echr, it is clear that the court “deemed it appropriate to investigate the events denounced by mrs opuz under article 14 [too]” (danisi, 2011: 800). thus, it was a deliberate choice to engage with the relevant international law on violence 3 oddny mjoll arnardóttir points out that in the court’s jurisprudence: “… while the vulnerable groups approach is not always mentioned, or is mentioned without elaboration of the relational understanding informing it, the awareness of social context and vulnerability implied may still inform the judgment.” (arnardóttir, 2017: 170) the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 84 against women and to integrate the ecthr case law into the wider international human rights law on this issue. since the golder v uk judgment,4 in various decisions5 the ecthr has interpreted the echr in compliance with the vienna convention of 23 may 1969 on the law of treaties (the vienna convention). in order to determine the meanings of specific terms and phrases (such as gender-based violence and discrimination against women), the court noted that it is guided mainly by the rules of interpretation provided in the vienna convention (demir and baykara v turkey para 65). the vienna convention in article 31.3.c. declares that any relevant rules of international law applicable in the relations between the parties should be taken into account in the interpretation of treaties. by relying on this article, the ecthr maintains an evolutive treaty interpretation method and expands the scope of the rights guaranteed under the echr in the light of relevant sources of international law (arato, 2012: 353). in the opuz v turkey case, the court engaged with the cedaw’s definition of “gender-based discrimination” and therefore interpreted the echr in its “normative environment” (blaker strand, 2020). in addition to the cedaw, the ecthr considered the cedaw committee’s general recommendation no. 19 (1992) as relevant international law in its ruling in opuz v turkey. general recommendation no. 19 is a turning point in international human rights law and demonstrates a new level of depth of analysis on the issue of violence against women (vijeyarasa, 2020: 157). it focuses specifically on violence against women and is considered to be one of the most important general recommendations of the cedaw committee since it points out that discrimination against women and violence against women are closely connected (šimonović, 2014: 601). differently from the ecthr, the cedaw and its committee pay significant attention to the underlying causes of violence against women. the court’s engagement with the general recommendation no. 19 in opuz v turkey therefore enabled the court to conclude that violence against the applicant and her mother is a reflection of systemic discrimination against women in turkey. the state authorities’ passivity towards domestic violence cases was considered in connection with the general attitude towards women. in its ruling, the court quotes articles 2(f), 5 and 10 (c) of the general recommendation no. 19, which states that: “11. traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices 4 according to george letsas: “… the use of the vclt [vienna convention on the law of treaties] in golder inaguarated the court’s rejection of originalism (in both the textualist and the intentionalist strands) and paved the way for the development of the doctrines of autonomous concepts and evolutive interpretation.” (letsas, 2010: 520) 5 see for instance golder v uk app no 4451/70 (ecthr, 21 february 1975) paras 29 and 35; johnston and others v ireland app no 9697/82 (ecthr, 18 december 1986) para 51; fogarty v uk app no 37112/97 (ecthr, 21 november 2001) para 35; al-adsani v uk app no 35763/97 (ecthr, 21 november 2001) para 55; neulinger and shuruk v switzerland app no 41615/07 (ecthr, 6 july 2010) para 131. ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 85 involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. such prejudices and practices may justify gender-based violence as a form of protection or control of women. the effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. while this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level political participation and to their lower level of education, skills and work opportunities.” (un committee on the elimination of discrimination against women, cedaw general recommendation no. 19: violence against women, 1992: articles 2.f., 5 and 10.c.) by the court, the authorities’ negligence was considered related to the gendered hierarchies and stereotypes expressed in the general recommendation no. 19. as sandra fredman remarked, condoning domestic violence on the grounds that it happens within the domestic sphere reflects a deep-seated negation of women as persons (fredman, 2016: 292). since the gendered hierarchies and stereotypes were considered to be embedded within the legal bodies, the court, by “[t]aking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights”, held that the applicant was not obliged to exhaust domestic remedies to bring the case to the ecthr (opuz v turkey para 201). by engaging with the relevant international law on the issue, the court was able to observe that such condoning by the authorities is a reflection of discrimination against women and considerably undermines women’s ability to enjoy their fundamental rights and freedoms through the domestic legal bodies. in paragraphs 76 and 77 in the case of opuz v turkey, the ecthr engaged with two cases before the cedaw committee on domestic violence. one of these cases was a.t. v hungary (2005). in this case, the applicant stated that she was subjected to severe domestic violence and death threats by her husband (a.t. v hungary para 2.1.). however, the applicant was not able to seek shelter since hungary was not equipped to shelter the applicant and her disabled child (ibid). also, there were no protection or restraining orders under hungarian law at the time (ibid). the cedaw committee concluded that “legal and institutional arrangements in the state party are not yet ready to ensure the internationally expected, coordinated, comprehensive and effective protection and support for the victims of domestic violence.” (ibid para 9.3.) the committee requested hungary to provide women fleeing domestic abuse with “the maximum protection of the law by acting with due diligence to prevent and respond to such violence against women” (ibid para 9.6.b). the other case on domestic violence which guided the ecthr in opuz v turkey was fatma yildirim v austria (2007). in this case, fatma yildirim was constantly threatened with death and then killed by her husband (fatma yildirim v austria para 2.13.). the cedaw committee held that the austrian authorities knew or should have known how the the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 86 situation was extremely dangerous for fatma yildirim (ibid para 12.1.4.). the committee considered that austria failed to detain the husband in order to protect fatma yildirim from death threats and severe forms of harassment and therefore did not act with due diligence (ibid paras 12.1.2. and 12.1.5.). in the case, austria argued that an arrest warrant would be a “disproportionately invasive” measure which would result in an intervention in the domestic sphere (ibid para 12.1.5). however, the committee concluded that “the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity.” (ibid) similarly, in opuz v turkey, turkey maintained that the authorities could not convict the husband because such an intervention would amount to a breach of the applicant’s and her husband’s rights under article 8 of the echr (the right to respect for private and family life). by making references to the case of fatma yildirim v austria, the ecthr dismissed turkey’s argument and underlined the states parties’ positive obligations “to take preventive operational measures to protect individual whose life is at risk” (opuz v turkey paras 147-148) and “to strike a balance between a victim’s article 2, article 3 or article 8 rights in deciding on a course of action.” (ibid para 138) the ecthr’s engagement with relevant international law and international bodies’ jurisprudence enabled the court to adopt a more proactive role in the fight against gender-based violence and any kind of discrimination against women (cartabia, 2011: 808). vibeke blaker strand suggests that as a result of extensive engagement with other international human rights law instruments and jurisprudence, opuz v turkey became an example of “interpretive thickening” on the issue of the states parties’ obligations in relation to domestic violence (blaker strand, 2020: 984). interpretive thickening, according to blaker strand, emerged as a consequence of interaction between the ecthr case law, human rights law and developments on regional and international levels (ibid). the court, through interpretive thickening, was able to recognize the systemic problems which went beyond the individual case at hand. as a result, it expanded the scope of legal issues which should be considered to be relevant in domestic violence cases (ibid) by integrating its case law into international human rights law, the court provided more robust human rights protection with respect to gender-based discrimination and domestic violence (ibid). iii. engagement with relevant international law in post-opuz domestic violence cases: gone too far? opuz v turkey is a landmark case in the ecthr’s jurisprudence. it represents a significant change in the court’s approach on gender-based discrimination (londono, 2009: 658). the court’s integration of its case law into wider international law on the issue of domestic violence is novel and has a potential to diminish the fragmentation in international law (cf. rachovitsa, 2017). such an integration, therefore, provides a welcome step to maintain the coherence of international law. the case has also led the way to an increase in domestic violence cases brought under article 14 and created a spillover effect on the ecthr’s case law in relation to domestic violence. opuz v turkey was ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 87 followed by various domestic violence cases and importantly the ecthr effectively used the article 14 in those cases too.6 in post-opuz cases, the ecthr continued engaging with the cedaw and the cedaw committee’s general recommendations. the case of eremia and others v moldova (2013) was brought before the court right after opuz v turkey. in reaching its conclusion, the court extensively benefited from the report of the united nations special rapporteur on violence against women in order to illustrate the patriarchal and discriminatory attitudes against women in moldova (ibid para 37). the report points out that domestic violence is a major problem in moldova, and it is “linked to women’s overall subordinate position in society.” (ibid) the statistics and the observations in the special rapporteur’s report enabled the ecthr to consider domestic violence a systemic problem which amounts to a form of discrimination under article 14 of the convention. differently from opuz v turkey, it is interesting to note that in post-opuz domestic violence cases, the ecthr has increasingly integrated its case law within human rights developments on the regional level. in post-opuz cases, the court has engaged further with the recommendations of the council of europe’s main bodies. in eremia and others v the republic of moldova, the court considered the recommendation rec (2002) 5 of 30 april 2002 of the committee of the ministers of the council of europe as relevant international law in its ruling. according to this recommendation: “33. (…) member states should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 34. the committee of ministers recommended, in particular, that member states should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrators. the recommendation also stated that member states should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women 6 eremia and others v the republic of moldova app no 3564/11 (ecthr, 28 may 2013); mudric v the republic of moldova app no 74839/10 (ecthr, 16 july 2013); valiuliene v lithuania app no 33234/07 (ecthr, 26 june 2013); t.m. and c. m. v the republic of moldova app no 26608/11 (ecthr, 28 april 2014); rumor v italy app no 72964/10 (ecthr, 27 may 2014); m.g. v turkey app no 646/10 (ecthr, 22 march 2016); halime kilic v turkey app no 63034/11 (ecthr, 28 june 2016); talpis v italy app no 41237/14 (ecthr, 2 march 2017); balsan v romania app no 49645/09 (ecthr, 23 may 2017); volodina v russia app no 41261/17 (ecthr, 4 november 2019); j.d. and a v united kingdom app nos 32949/17 and 34614/17 (ecthr, 24 february 2020); munteanu v the republic of moldova app no 34168/11 (ecthr, 26 august 2020). the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 88 as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings. 35. with regard to violence within the family, the committee of ministers recommended that member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.” (ibid para 33) in the following cases on domestic violence, such as mudric v the republic of moldova (2013), the court noted that it is mainly guided by the domestic and relevant international materials summarised in the cases of opuz v turkey and eremia and others v the republic of moldova in its judgment (mudric v the republic of moldova paras 2628). it can therefore be argued that opuz v turkey was the seminal case where the court engaged with relevant international law (such as the cedaw) whereas eremia and others v the republic of moldova was the landmark case where the court engaged mainly with the regional human rights law and developments (such as the council of europe’s human rights instruments). from this point of view, in post-opuz cases it can be observed that the ecthr increasingly engages with the case of eremia and others v the republic of moldova i.e. with the regional human rights instruments. in t.m. and c. m. v the republic of moldova (2014), for instance, the court made a reference to the case of eremia and others v the republic of moldova and engaged only with the relevant regional human rights instruments (t.m. and c. m. v the republic of moldova para 25). whereas the court’s engagement with the relevant international and regional human rights instruments is a welcome step towards the protection of domestic violence victims, the court’s increasing use of non-binding instruments in its rulings have resulted in criticisms in the scholarship (dzehtsiarou, 2018; rachovitsa, 2015). the criticisms were raised after the case of valiuliene v lithuania (2013). in this case, a lithuanian national, loreta valiuliene complained that “criminal proceedings she had instituted had been futile” (valiuliene v lithuania para 3). the applicant stated that her live-in partner had beaten her up on multiple occasions. when the applicant informed the police about the violence in 2002, the police considered that there was insufficient evidence to prove that the applicant’s partner was responsible for the bruises that the applicant had (ibid para 18). in 2003, the police investigator once again decided to discontinue the pre-trial investigation since there was not enough evidence that the applicant was beaten by her partner (ibid para 19). when the case was brought before the ecthr, the court held that there had been a violation of article 3 of the convention (freedom from torture, inhuman or degrading treatment or punishment). ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 89 in this case, the ecthr interestingly made no reference to its earlier jurisprudence on domestic violence. first of all, the court engaged with the cedaw which was ratified by lithuania in 1994. the treaty was legally binding for the state party when loreta valiuliene was objected to violence and therefore the ecthr’s consideration of this treaty as relevant international law did not constitute a problem. the court pointed out that the cedaw committee issued concluding observations on the state in 2004 and underlined the high prevalence of violence against women in the country, in particular domestic violence (ibid para 39). the cedaw committee reported that it was concerned that domestic violence was considered a private matter by police, health officers and the relevant authorities and society at large in lithuania (ibid para 39). the court later engaged with the united nations secretary general’s report which presented statistics and proved the prevalence of domestic violence in the country at stake (ibid para 40). both the cedaw committee’s concluding observations and the united nations secretary general’s report indicated the ineffectiveness of domestic remedies in providing equal protection of law to domestic violence victims in lithuania. what makes this case interesting and legally open-to-debate is that the ecthr in its ruling considered a treaty to which lithuania is not a party as relevant international law: the convention on preventing and combating violence against women and domestic violence of 2011 (widely known as the istanbul convention). the court stated that: “the convention has been signed by twenty eight council of europe member states and ratified by three. the convention has not yet entered into force, nor has it been signed by lithuania. one of the purposes of the convention is to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence.” (ibid para 41) it is important that the ecthr considered the istanbul convention as relevant since it “contains very detailed provisions on the responses which states should adopt regarding the issue of domestic violence.” (mcquigg, 2014: 769) the case also shows that, similar to eremia and others v the republic of moldova, the ecthr is determined to continue engaging with regional human rights instruments. the court’s approach seems to be consistent because it continued considering the istanbul convention as relevant international law in very recent cases on domestic violence (such as halime kilic v turkey para 64; j.d. and a v united kingdom paras 50 and 51; talpis v italy para 58; volodina v russia para 60). besides, the court’s engagement with the istanbul convention also created a motivation for non-member states to sign this international human rights document. for instance, lithuania signed the istanbul convention three months after the issuing of the case of valiuliene v lithuania.7 therefore, valiuliene v lithuania once again proves that the ecthr, with its recent jurisprudence, has become a key actor for the protection of domestic violence victims. 7 the case was first issued on 26 march 2013 and lithuania signed the convention on preventing and combating violence against women and domestic violence on 7 june 2013. the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 90 an examination of the ecthr’s jurisprudence shows that the court takes the view that “it should not exclude from its consideration non-binding materials (including declarations, guidelines, or reports) or relevant human rights treaties to which the respondent state is not a party.” (letsas, 2010: 521) especially since 2000, the court increasingly engages with non-binding (soft) law.8 the court’s engagement with relevant (binding and non-binding) human rights instruments are significant since such an engagement both creates robust human rights protection and also diminishes fragmentation in international law. interestingly, this shows that in domestic violence cases the state parties’ neglect of relevant non-binding human rights instruments or withdrawal from human rights treaties (for example, turkey’s withdrawal from the istanbul convention in july 2021) does not prevent the ecthr from considering these instruments as relevant in its judgments. nevertheless, the court’s engagement with a convention which the state party at stake (lithuania) did not sign and ratify created legal discussions in the scholarship. adamantia rachovitsa’s research shows that, in its jurisprudence, the court does not hesitate to employ non-binding law including, but not limited to, council of europe parliamentary assembly resolutions; the universal declaration on human rights; and reports by un special rapporteurs (rachovitsa, 2015: 880). in rachovitsa’s view, with this approach the court does not draw a clear line between binding and non-binding (soft law) instruments and creates ambiguity regarding the precise obligations of the member states (ibid). rachovitsa, however, fails to give sufficient consideration to the ecthr’s living instrument doctrine, which makes the court effective, dynamic, evolutive, and relevant in international law. for the convention to be a living instrument, the court has to be responsive to changing conditions and this is only possible when and if the court integrates its case law within the broader international law. indeed, the court’s jurisprudence employs various norms and principles “emanating from other special regimes such as those governing child rights, torture, armed conflict, refugee rights and civil and political rights, particularly these provide more specific guidance than the echr.” (mcinerneylankford, 2012: 615) the court points out that “the principles underlying the convention cannot be interpreted and applied in a vacuum” (bankovic and others v belgium and 16 other states para 57) and it “should be interpreted in harmony with other rules of international law of which it forms part (…).” (al-adsani v uk para 55) the court itself states in another case that: “the court, in defining the meaning of terms and notions in the text of the convention, can and must take into account elements of international 8 including but not limited to christine goodwin v uk app no 28957/95 (ecthr, 11 july 2002); oneryildiz v turkey app no 48939/99 (ecthr, 30 november 2004); glass v uk app no 61827/00 (ecthr, 9 march 2004); taskin and others v turkey app no 46117/99 (ecthr, 30 march 2005); bekos and koutropoulos v greece app no 15250/02 (ecthr, 13 december 2005); siliadin v france app no 73316/01 (ecthr, 26 october 2005); russian conservative party of entrepreneurs and others v russia app nos 55066/00 and 55638/00 (ecthr, 11 april 2007). ebru demir the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 91 law other than the convention, the interpretation of such elements by competent organs, and the practice of european states reflecting their common values. (…) … it is not necessary for the respondent state to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter or the case concerned. it will be sufficient for the court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member states of the council of europe and show, in a precise area, that there is common ground in modern societies…” (demir and baykara v turkey paras 85 and 86). as seen, the court considers international law as a whole and does not require the states parties’ signature in order to integrate the developing norms and principles into its case law. the cross-fertilization among international human rights instruments in the ecthr’s jurisprudence gives evidence to the full support given by the court to the relevance of systemic integration (pitea, 2013: 557). the court is keen to link its own analyses and interpretations to wider trends of international human rights law (viljanen, 2008: 250; wildhaber, 2007). this is indeed what makes the echr “a living instrument”. irrespective of whether the states parties have agreed to be formally bound by relevant international law, the court states that it is mainly concerned with developing the echr in light of trends in contemporary international human rights law (arato, 2012: 385). thus, valiuliene v lithuania is neither the first nor the last case in which the court engages with an international treaty not signed and ratified by the state party in dispute. iv. conclusion this article argues that by engaging its case law with the relevant international human rights instruments and jurisprudence, the ecthr provides robust human rights protection for domestic violence victims. starting with the case of opuz v turkey, the ecthr considered domestic violence as a breach of article 14 of the echr (prohibition of discrimination) for the first time. in this case, the court directly connected the ineffectiveness of the domestic judicial and executive bodies to the systemic discrimination against women in south-eastern turkey. the court’s innovative interpretation of article 14 in the case of domestic violence created a turning point in the court’s jurisprudence and a number of violation judgments in domestic violence cases followed opuz v turkey. this article shows that, in opuz and post-opuz domestic violence cases, the court has increasingly engaged with relevant international and regional human rights instruments without drawing a line between binding or non-binding human rights instruments. whereas the court’s engagement with these instruments is a welcome step towards the protection of domestic violence victims, the court’s extensive use of soft law in its rulings has resulted in severe criticisms in the scholarship. as a response to these criticisms, this the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 92 article argues that the court’s engagement with relevant (binding or non-binding) human rights instruments is significant, since such an engagement both creates robust human rights protection and also diminishes fragmentation in international law. according to the present author, the effective use of the convention is only possible through the court’s greater engagement with wider international human rights law. bibliography abdel-monem t. 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(2007) the european convention on human rights and international law. international and comparative law quarterly 56: 217–231. https://doi. org/10.1093/iclq/lei163 cases al-adsani v uk app no 35763/97 (ecthr, 21 november 2001). https://doi. org/10.5144/0256-4947.2001.258a a.t. v hungary communication no 2/2003 (cedaw, 26 january 2005). balsan v romania app no 49645/09 (ecthr, 23 may 2017). bankovic and others v belgium and 16 other states app no 52207/99 (ecthr, 12 december 2001). https://doi.org/10.1163/157181301401748405 bekos and koutropoulos v greece app no 15250/02 (ecthr, 13 december 2005). https:// doi.org/10.1299/jsmeintmp.2005.13_2 bevacqua and s v bulgaria app no 71127/01 (ecthr, 12 june 2008). christine goodwin v uk app no 28957/95 (ecthr, 11 july 2002). demir and baykara v turkey app no 34503/97 (ecthr, 12 november 2008). eremia and others v the republic of moldova app no 3564/11 (ecthr, 28 may 2013). fatma yildirim v austria communication no 6/2005 (cedaw, 1 october 2007). fogarty v uk app no 37112/97 (ecthr, 21 november 2001). glass v uk app no 61827/00 (ecthr, 9 march 2004). golder v uk app no 4451/70 (ecthr, 21 february 1975). halime kilic v turkey app no 63034/11 (ecthr, 28 june 2016). j.d. and a v united kingdom app nos 32949/17 and 34614/17 (ecthr, 24 february 2020). johnston and others v ireland app no 9697/82 (ecthr, 18 december 1986). m.g. v turkey app no 646/10 (ecthr, 22 march 2016). mudric v the republic of moldova app no 74839/10 (ecthr, 16 july 2013). munteanu v the republic of moldova app no 34168/11 (ecthr, 26 august 2020). https://doi.org/10.1080/14754835.2019.1686347 https://doi.org/10.1093/iclq/lei163 https://doi.org/10.1093/iclq/lei163 https://doi.org/10.5144/0256-4947.2001.258a https://doi.org/10.5144/0256-4947.2001.258a https://doi.org/10.1163/157181301401748405 https://doi.org/10.1299/jsmeintmp.2005.13_2 https://doi.org/10.1299/jsmeintmp.2005.13_2 the european court of human rights’ engagement with international human rights instruments the age of human rights journal, 17 (december2021) pp. 79-96 issn: 2340-9592 doi: 10.17561/tahrj.v17.6347 96 neulinger and shuruk v switzerland app no 41615/07 (ecthr, 6 july 2010). oneryildiz v turkey app no 48939/99 (ecthr, 30 november 2004). opuz v turkey app no 33401/02 (ecthr, 9 june 2009). rumor v italy app no 72964/10 (ecthr, 27 may 2014). https://doi.org/10.4244/ eijv10i1a6 russian conservative party of entrepreneurs and others v russia app nos 55066/00 and 55638/00 (ecthr, 11 april 2007). siliadin v france app no 73316/01 (ecthr, 26 october 2005). t.m. and c. m. v the republic of moldova app no 26608/11 (ecthr, 28 april 2014). talpis v italy app no 41237/14 (ecthr, 2 march 2017). taskin and others v turkey app no 46117/99 (ecthr, 30 march 2005). tyrer v uk app no 5856/72 (ecthr, 25 april 1978). valiuliene v lithuania app no 33234/07 (ecthr, 26 june 2013). volodina v russia app no 41261/17 (ecthr, 4 november 2019). received: may 12th 2021 accepted: july 21st 2021 https://doi.org/10.4244/eijv10i1a6 https://doi.org/10.4244/eijv10i1a6 the european court of human rights’ engagement with international human rights instruments: look i. introduction ii. opuz v turkey: placing the echr within international human rights law iii. engagement with relevant international law in post-opuz domestic violence cases: gone to iv. conclusion bibliography cases international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 1 international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation atul alexander1 abstract: the ongoing russian aggression on ukraine has prompted ukrainian president zelensky to seek the assistance of states and international institutions. one such institution that ukraine approached is the international court of justice (icj), requesting provisional measures. ukraine contends that the russian federation has falsely claimed that acts of genocide have occurred in the luhansk and donetsk oblast in eastern ukraine. in this article, the author details the provisional measures rendered by the icj; in doing so, it is contended that the interpretation of the icj vis-à-vis the genocide convention is flexible and broad, a stark contrast to its previous cases. keywords: genocide, ukraine, russia, international court of justice, provisional measures. 1. introduction the ongoing russia-ukraine conflict has snowballed into a matter of international concern (united nations, 2022f). unabated literature has flowed pertaining to international law and the said conflict; these writings have covered aspects of jus ad bellum and jus in bello (green, henderson, ruys, 2022; mclaughlin, 2022). despite the justifications provided by the russian president vladimir putin to intervene in eastern ukraine, states from all quarters have condemned the russian actions (united nations, 2022a). with the backing of western allies, the united states of america (usa) has come out all guns blazing, issuing sanctions to dissuade the actions of russia (russell, 2022).2 however, sanctions have been unable to halt the russian march in ukraine (dugan, 2022). in addition to sanctions, various international law avenues are being explored by states to corner russia. in this regard, a proposal was placed in the united nations security council (unsc), which the russian federation vetoed (united nations, 2022d). the united nations general assembly (unga) resolution demanded that russia end the offensive in ukraine (united nations, 2022b). the un human rights council voted to establish a commission to investigate the violations committed by russia in ukraine (united nations, 2022c). ukraine’s ambassador yevheniia filipenko states, “the establishment of a commission of inquiry will investigate all alleged violations and abuses of human rights and violations of international humanitarian law and related crimes in the russian federation's aggression 1 assistant professor (law) at the west bengal national university of juridical sciences (wbnujs), kolkata, india (atulalexander100@nujs.edu). i wish to thank ms. richa maria reginald for the research assistance. all errors in this paper are solely mine. 2 claire mills, sanctions against russia, https://researchbriefings.files.parliament.uk/documents/cbp-9481/ cbp-9481.pdf https://doi.org/10.17561/tahrj.v21.7781 mailto:atulalexander100@nujs.edu https://researchbriefings.files.parliament.uk/documents/cbp-9481/cbp-9481.pdf https://researchbriefings.files.parliament.uk/documents/cbp-9481/cbp-9481.pdf international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 2 against ukraine, including their root causes.”3 moreover, the international criminal court (icc) prosecutor has proceeded with opening an investigation into the situation in ukraine (siddiqui, liu, posthumus, zvobgo, 2022). further, ukraine approached the icj for provisional measures and the icj took cognisance of the happenings in ukraine and rendered provisional measures on 16th march 2022.4 in this article, the author provides a detailed analysis of the provisional measures, thereby highlighting the approach of the icj in the overall scheme of provisional measures vis-à-vis the convention on the prevention and punishment of the crime of genocide (genocide convention). the author has accordingly split the article into four segments – the first part details the provisional measures and their utility, the second portion maps the interaction between provisional measures and the genocide convention, the third part covers the icj’s provisional measures of 16th march 2022 and the final portion curates the general outlook of the icj on the genocide convention and provides recommendations. 2. provisional measures: utility the icj is conferred with the task of maintaining peace and security (akande, 1996). to realise these objectives, it can exercise its discretionary power to render provisional measures to create a binding obligation on the states. article 41 of the icj statute states that, “1. the court shall have the power to indicate if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the security council.”5 the competence to render provisional measures is the ‘inherent power’ of the court. as professor prabhas ranjan and achyuth anil put it, ‘provisional measures are interim measures to preserve the rights of the parties pending the final decision (ranjan, anil, 2022).’ the power to order provisional measures falls within the scope of icj’s ‘incidental jurisdiction’ (rosenne, 2004). since the beginning of the 21st century, there has been a considerable increase in the provisional measures sought by the state. as pointed out by andreas kulick, the icj has rendered 27 provisional measures in the last 21 years, a stark contrast from the earlier years (andreas kulick, 2022). jorg kammerhofer contends that the pcij and the icj, until june 2001, had never uttered the legal binding force of provisional measures (kammerhofer, 2003). some scholars even considered provisional measures as having only moral force. sztucki observes, ‘the obligation has become 3 ibid. 4 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation) the court indicates provisional measures, https://www.icj-cij.org/public/ files/case-related/182/182-20220316-pre-01-00-en.pdf 5 statute of the international court of justice, https://www.icj-cij.org/en/statute https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/public/files/case-related/182/182-20220316-pre-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/182/182-20220316-pre-01-00-en.pdf https://www.icj-cij.org/en/statute atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 3 a moral norm, or, as it has been called, quasi-obligatory’ (sztucki, 1983). at the same time, others like hersch lauterpacht regard provisional measures as more than a moral obligation on the states, as the court examines the circumstances that allow it to issue provisional measures (lauterpacht, 1958). the nature of the provisional measure was put to rest in the lagrand case, here the icj ascertained its binding effect, and its breach entails state responsibility (lee-iwamoto, 2012). as the japanese professor yoshiyuki lee-iwamoto opines, ‘since the recognition of its binding force in the lagrand judgment, more and more attention has been shifted to the interpretation and application of the court’s power to indicate provisional measures due to its discretionary character (lee-iwamoto, 2012; kempen, he, 2009).’ also, it could be observed that the icj is not reluctant to provide remedies at the provisional measures stage. the icj granted restitution in grant, for instance, in the tehran hostage case, wherein it was observed that ‘iran should ensure that the premise of the embassy has to be restored to the possession of the united states’ and cessation was granted in the avena and nicaragua case (stoica, 2021). additionally, provisional measures play multiple roles beyond settling disputes between the states; as michael ramsden opines, “the court employed different tactics to ensure its relevance on a wider set of issues (ramsden, 2023)”. ramsden adds that provisional measures could serve a wider purpose in interpreting international law and assist the states in taking a broader vision regarding resolving the wider dispute. also, provisional measures provide a fine balance between bilateral dispute settlement and the attainment of collective goods (ramsden, 2023). for instance, in the russia-ukraine provisional measures, the icj observed, ‘…all states must act in conformity with their obligations under the united nations charter and other rules of international law, including international humanitarian law’6, at the same time, it was also stated that, ‘…case before it was limited in scope, raising issues only under the genocide convention’7, thus indicating the fact that it is limited by jurisdictional constraints. the provisional measures rendered by the icj also ensure that disputes do not aggravate (rieter, 2010). provisional measures are granted in cases of urgency, prejudice, and irreparable harm (miles, 2017). since provisional measures are rendered on short notice, it ensures that immediate measures are taken; in the recent case of russia-ukraine, the provisional measures order was rendered within 20 days. as provisional measures are rendered urgently, the icj need not peel into the merits or the substantive questions, whereby it merely looks to the minimum requirement concerning prima facie jurisdiction, plausibility, and irreparable prejudice to human life and property (miles, 2018). 6 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), 16 march 2022, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20220316-ord-01-00-en.pdf at p.5. 7 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), 16 march 2022, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20220316-ord-01-00-en.pdf at p.5. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf at p.5 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf at p.5 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 4 previously, the icj wrestled with the question of merits while rendering provisional measures vis-à-vis the genocide convention. this was apparent during the north atlantic treaty organization (nato) states’ bombing of yugoslavia, wherein the icj rendered a slew of provisional measures on request by yugoslavia, and serbia and montenegro (nanda, 2022). however, there appears to be a shift in the mindset of the icj wherein it has adopted a flexible interpretation of the genocide convention at the provisional measures stage through its recent cases. 3. genocide convention: a slice from the past genocide is a massive human rights violation that shakes the conscience of humanity (vrdoljak, 2011). thereby, it becomes imperative for the state to tackle the crime of genocide. thus, the un has evolved jurisprudence to curb acts of genocide (united nations, 2022e). pursuant to this, the genocide convention was enacted.8 the earliest encounter of icj with the genocide convention was the advisory opinion rendered in the reservations to the convention on the prevention and punishment of the crime of genocide, 19489. the advisory opinion, requested by the unga, was regarding the position of states making reservations to the genocide convention. the icj had a golden opportunity to enumerate in depth the nature of the genocide convention. according to the icj, “the object and purpose of the convention thus limit both the freedom of making reservations and that of objecting to them. it follows that it is the compatibility of a reservation with the object and purpose of the convention that must furnish the criterion for the attitude of a state in making the reservation on accession as well as for the appraisal by a state in objecting to the reservation. such is the rule of conduct which must guide every state in the appraisal which it must make, individually and from its own standpoint, of the admissibility of any reservation.”10 albeit the states are not prohibited from reserving the provisions of a convention, the nature of the genocide convention is such that states are proscribed from reserving its object and purpose. considering the humanitarian character of the convention as evinced in the 1948 advisory opinion, coupled with the nature of the prohibition of genocide genocide as a jus cogens norm (linderfalk, 2007), the icj attached importance to the genocide convention as early as the 1950s. subsequently, in the barcelona traction case, it was clearly pointed out that the duty to respect fundamental human rights constitutes erga omnes obligation, which are obligations owed by states to the international community as a whole, and in the court’s opinion, genocide constitutes one such obligation. as gentian 8 convention on the prevention and punishment of the crime of genocide. paris, 9 december 1948, https:// treaties.un.org/doc/treaties/1951/01/19510112%2008-12%20pm/ch_iv_1p.pdf 9 reservations to the convention on the prevention and punishment of the crime of genocide, international court of justice may 28, 1951, advisory opinion, 1951 i.c.j. rep.15. 10 ibid at 8. https://doi.org/10.17561/tahrj.v21.7781 https://treaties.un.org/doc/treaties/1951/01/19510112%2008-12%20pm/ch_iv_1p.pdf https://treaties.un.org/doc/treaties/1951/01/19510112%2008-12%20pm/ch_iv_1p.pdf atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 5 zyberi opines in the context of the icj, ‘…recognition of many principles of human rights such as the prohibition of genocide… as part of customary international law or even jus cogens finds support in the case-law of the court (zyberi, 2007).’ apart from the 1951 advisory opinion and the barcelona traction dictum, until the 1990s, the icj was not presented with cases pertaining to the genocide convention. this was because of the mushrooming international criminal tribunals, which shed light on the contours of the crime of genocide. the contribution of the two ad-hoc tribunals established by the unsc, i.e., the international criminal tribunal for the former yugoslavia (icty) and the international criminal tribunal for rwanda (ictr), are worth mentioning (northwestern, 2022). these tribunals have clarified the definition, prosecution, and punishment for the crime of genocide. one of the key requirements for proving the crime of genocide is the specific intent (mental element) or dolus specialis (burns, 2010) apart from the material element. in the kayishema (rabi, 2019) and ruzindana cases,11 several factors such as the death toll, the use of deadly weapons, the mental agony to the victims and the targeting of a particular group, were used to establish the mental element. as stated, the threshold for proving genocide is high; moreover, the act should be proven beyond a reasonable doubt (abass, 2007). as a result of the enormous literature flowing from these international tribunals, the interpretation of the nature of the genocide convention, both in advisory opinion and contentious cases from icj, is fairly limited. 4. genocide convention and provisional measures in the aftermath of the bosnian genocide, the icj was presented with an opportunity to interpret the genocide convention. on 20 march 1993, bosnia and herzegovina instituted proceedings against the federal republic of yugoslavia (serbia and montenegro) for the alleged violation of the genocide convention. the first question before the icj was to examine whether it had jurisdiction ratione materiae under art. ix of the genocide convention. after analysing the case, the icj found that it has prima facie jurisdiction ‘…as both the states are parties to the genocide convention.12 although the icj affirmed the massive killings in the territory of bosnia and herzegovina, the claim was not supported by ‘specific intent’, one of the fundamental requirements for proving the commission of ‘genocide’.’ however, the icj concluded that specifically in ‘srebrenica’ genocide was committed with the specific intent to kill the bosnian muslims by the vrs (army of the republika srpska) main staff. ironically, the icj also concluded that, albeit the acts of the vrc cannot be attributed to serbia (respondent state), it had an obligation to prevent ‘genocide’ by all reasonable means.13 11 ibid. 12 case concerning application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. yugoslavia (serbia and montenegro) request for the indication of provisional measures order of 8 april 1993, available at https://www.icj-cij.org/sites/default/files/caserelated/91/091-19930408-ord-01-00-en.pdf at p.15. 13 application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. serbia and montenegro), https://www.icj-cij.org/en/case/91 https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/91/091-19930408-ord-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/91/091-19930408-ord-01-00-en.pdf https://www.icj-cij.org/en/case/91 international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 6 the nato states’ intervention and bombing of yugoslavia during the kosovo war under the operation of the ‘allied forces’ in 1999 destroyed major cultural monuments, schools, and hospitals, allegedly killing more than 1000 forces of the yugoslav security forces and 500 civilians (radio free europe, 2019). the intervention was justified under the pretext of ‘humanitarian intervention’ after the chinese and the russian veto (kounalakis, 2016). it was the first time the nato states intervened without explicit unsc authorisation. the nato bombings forced yugoslavia to approach the icj in a series of proceedings, wherein the icj had the opportunity to interpret the genocide convention in the context of provisional measures vis-à-vis the legality of the use of force.14 the icj, in these proceedings, at the provisional measures stage, provided a narrow interpretation of the genocide convention by delving into the substantive contents of the genocide convention like ‘intention’ under article ii of the genocide convention.15 as previously discussed, the threshold for ‘specific intent’ is high in terms of the crime of genocide, which at the provisional measure stage should not have been deliberated by the icj. moreover, the icj agreed with the contention that the use of force is not capable of falling within the purview of article iii of the genocide convention16, thereby lacking jurisdiction under art. ix of the genocide convention. what can also be seen is the icj’s reluctance to render monetary compensation for the breaches of the obligations set out in art i of the genocide convention. as professor christian tomuschat aptly puts it, “…the icj could have ordered symbolic monetary damages by taking into account international practice and the request by the applicant (tomuschat, 2007).” the court required a direct causal link between the violation and the injury for the granting of material and moral damages (zyberi, 2011). in the case against one of the nato states, spain, the icj accepted the reservation made by spain to article ix of the genocide convention precluding the jurisdiction of the court (instrument of accession, deposited with the united nations secretary-general on 13 september 1968). here, the icj focused on the consensual nature of international law rather than a specific act that violates international law. as the icj observes, “…there is a fundamental distinction between the question of the acceptance by a state of the court's jurisdiction and the compatibility of particular acts with international law.”17 however, the attitude of the icj appears to follow a liberal trajectory in the subsequent cases. the case of gambia v myanmar18 marks the first time a non-injured state appearing before the court invoking the genocide convention (becker, 2020). with the backing of 14 legality of use of force, https://www.icj-cij.org/en/case/112 15 legality of use of force (yugoslavia v. spain) request for the indication of provisional measures, order (june 2, 1999), https://www.icj-cij.org/public/files/case-related/112/112-19990602-ord-01-00-en.pdf. 16 the provision lays down the list of acts that constitute ‘genocide’. these are a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. 17 ibid at 773. 18 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), https://www.icj-cij.org/en/case/178 https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/en/case/112 https://www.icj-cij.org/public/files/case-related/112/112-19990602-ord-01-00-en.pdf https://www.icj-cij.org/en/case/178 atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 7 the fifty-seven-member state of the organization of islamic cooperation (oic), a tiny west african state, gambia instituted a proceeding against myanmar. on 23rd january 2020, the icj indicated provisional measures, laying down three core criteria for indicating the same. these are – a) prima facie jurisdiction (the icj examines the existence of a dispute), b) plausibility, and c) risk of irreparable loss and urgency.19 regarding the first criterion, in terms of ‘dispute’, the icj went by the definition, i.e., “a dispute between states exists where they hold opposite views concerning the question of the performance or non-performance of certain international obligations.”20 the claim of one party must be positively opposed by the other. to determine the existence of the dispute, the icj interestingly referred to the statement made by the parties in the unga to decipher that the parties held divergent views concerning the event in the rakhine state.21 concerning the plausibility criteria, i.e., “a link must exist between the rights whose protection is sought and the provisional measures being requested.”22 the icj, relying on the un fact-finding report and the report of unga report, added that “given the function of provisional measures, which is to protect the respective rights of either party pending its final decision, the court does not consider that the exceptional gravity of the allegations is a decisive factor warranting, as argued by myanmar, the determination, at the present stage of the proceedings, of the existence of genocidal intent”23. in short, the icj considered that at the provisional measure stage, it is not imperative to discuss an issue of ‘genocidal intent’, which is a matter reserved purely for the merits, thereby accepting the contention of gambia. the third criterion is the risk of irreparable loss and urgency. here, the icj relied on the preamble of the genocide convention to indicate the humanitarian dimension of the genocide convention,24 a vivid reference to the same was made in para 73 of the opinion wherein it is pointed out that, “myanmar has not taken adequate steps to recognise and ensure that the rights of the rohingya exist as a protected group under the 19 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf. 20 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.10. 21 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.27. 22 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.18. 23 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.23. 24 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.24. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 8 genocide convention, moreover the icj travelled an additional mile to state unanimously that, ‘myanmar (take) all measures within its power to prevent the commission of all acts within the scope of article ii of this convention’, also went on to add that, ‘myanmar shall submit a report to the court on all measures taken to give effect to this order within four months, as from the date of this order, and thereafter every six months until the court renders a final decision on the case.”’25 the opinion was met with certain reservations from judge xue. accordingly, even though the icj is not required to make an ascertainment of ‘genocidal intent’ at the present stage, the acts alleged should display prima facie raising the level of ‘genocidal intent.’26 judge xue further emphasised that ‘state parties making reservation to article ix of the genocide convention are equally committed to the raison d’être of the genocide convention.’27 the separate opinion of the judge also points towards the shifting nature of provisional measures in the context of the genocide convention. as the judge observes in the separate opinion, ‘provisional measures are intended to bring the necessary protection to human beings who have been suffering for a long time in a situation of extreme vulnerability.’28 further, trindade adds that provisions of the genocide convention confirm with the law of protection, ‘oriented towards the safeguard of the fundamental rights of those victimised in a continuing situation of extreme human vulnerability, so as also to secure the prevalence of the rule of law (la prééminence du droit).’29 there is a further emphasis on the principle of ‘human vulnerability’ in the context of provisional measures, as it is opined, “the determination and ordering of provisional measures of protection under the convention against genocide, and under human rights conventions, can only be properly undertaken from a humanist perspective, necessarily avoiding the pitfalls of an outdated and impertinent state voluntarist outlook.”30 it is clear that the icj, in interpreting the genocide convention, did not enter into the ‘intent’ element under 25 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), https://www. icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf at p.31. 26 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), separate opinion of vicepresident xue, available at https://www.icj-cij.org/sites/default/files/case-related/178/17820200123-ord-01-01-en.pdf at p.32. 27 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar) request for the indication of provisional measures, order, (january 23, 2020), separate opinion of vicepresident xue, available at https://www.icj-cij.org/sites/default/files/case-related/178/17820200123-ord-01-01-en.pdf at p.34. 28 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), separate opinion of cançado trindade, available at https://www.icj-cij.org/sites/default/files/ case-related/178/178-20200123-ord-01-02-en.pdf at para 1. 29 ibid at para 89. 30 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), separate opinion of cançado trindade, available at https://www.icj-cij.org/sites/default/files/ case-related/178/178-20200123-ord-01-02-en.pdf at para 94. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-01-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-01-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-01-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-01-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-02-en.pdf at https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-02-en.pdf at https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-02-en.pdf https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ord-01-02-en.pdf atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 9 the genocide convention, which marks a visible shift from its earlier jurisprudence. as angelique rael opines, “the court’s decision to issue provisional measures is significant because it is the first binding decision to hold myanmar accountable for its genocidal acts committed against the rohingya group (rael, 2021).” 5. russia-ukraine provisional measures on 26 february 2022, ukraine filed an application against russia regarding ‘a dispute . . . relating to the interpretation, application and fulfilment of the 1948 convention on the prevention and punishment of the crime of genocide.’31 5.1 ukraine’s contentions the fundamental argument of ukraine was premised on the interpretation of the genocide convention, to which both ukraine and the russian federation are signatories.32 ukraine disagrees with the argument of russia that the special military operation is carried out to prevent the commission of genocide in the regions of luhansk and donetsk oblast of eastern ukraine.33 therefore, according to ukraine, it is a straightforward case of differences arising from interpretation pertaining to the genocide convention. hence, the request for the provisional measure was essential to halt the special military mission. as ukraine put forth in its claims, the request for the provisional measures has fulfilled the criteria of – a) prima facie jurisdiction, b) preservation of rights, and c) the risk of irreparable prejudice and urgency.34 on prima facie jurisdiction, ukraine contended that russia and ukraine are parties to the genocide convention. article ix of the said convention reads as: “disputes between the contracting parties relating to the interpretation, application or fulfilment of the present convention, including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in article iii, shall be submitted to the international court of justice at the request of any of the parties to the dispute.”35 the ‘dispute’ requirement in article ix is a disagreement on a point of law or fact, a conflict of legal views, or of interests between parties. this definition of ‘disagreement’ on 31 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf 32 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), order, (march 16, 2022), https://www.icj-cij.org/public/files/ case-related/182/182-20220316-ord-01-00-en.pdf. 33 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), order, (march 16, 2022), at p.8. 34 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), order, (march 16, 2022), at p.14. 35 convention on the prevention and punishment of the crime of genocide, 1948, https://www.un.org/ en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20 and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/182/182-20220316-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/182/182-20220316-ord-01-00-en.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 10 the point of law or fact is that ukraine has “emphatically denied that any act of genocide has occurred in the luhansk and donetsk oblasts or elsewhere in ukraine and that russia has any lawful basis whatsoever to take action in and against ukraine for the purpose of preventing and punishing genocide.”36 in response to russia’s claim, the ministry of foreign affairs of ukraine issued a statement that ukraine “strongly denies russia’s allegations of genocide and denies any attempt to use such manipulative allegations as an excuse for russia’s unlawful aggression.”37 further, ukraine intended to preserve, in good faith, article i of the genocide convention, i.e., the obligation to prevent genocide. as genocide was not committed in the first place by the incorrect claim of russia, the purpose and object of the convention are undermined.38 although the obligation to prevent genocide is a key feature of the genocide convention, it has to be undertaken in good faith in accordance with the norm of international law. therefore, as ukraine points out, “the russian federation’s invasion of ukraine based on a false claim of genocide is thus incompatible with the genocide convention and violates ukraine’s rights.”39 the third requirement is the risk of irreparable prejudice and urgency. according to ukraine, the invasion of russia is ongoing and has resulted in widespread loss of life, property and humanitarian crisis. hence, ukraine requests the icj to render the following provisional measures in terms of the genocide convention: “the russian federation shall immediately suspend the military operations commenced on 24 february 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the luhansk and donetsk oblasts of ukraine.”40 5.2 russia’s contention russia regrets the short notice in which it had to properly assess the case brought against it before the icj; therefore, it decided not to participate in the oral proceedings. however, out of deference to the court, russia had decided its position regarding the lack 36 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.8. 37 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.10. 38 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at 14. 39 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.12. 40 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.3. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 11 of competence of the court in this case.41 the primary contention of russia was that the icj does not possess prima facie jurisdiction as the subject matter of the dispute does not relate to the interpretation, application, and fulfilment of the genocide convention. this was in line with the icj’s previously held view in the legality of use of force case, wherein it was observed that “the court must ascertain whether the breaches of the convention alleged are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the court has jurisdiction ratione materiae to entertain pursuant to article ix.”42 moreover, russia contended that the genocide convention did not regulate matters relating to the use of force or the question of recognition of states. although, as ukraine argues, the obligation to prevent genocide is enshrined in article i of the genocide convention is to be compiled in good faith in sync with the un charter.43 according to russia, this does not imply that the genocide convention regulates matters pertaining to the use of force or article 51. as russia asserts, “to read them into the convention by implication would be to substantially amend and distort the object and purpose of the convention.”44 the special military operation, according to russia, was justified through article 51 of the un charter and customary international law; this was communicated to the unsg. interestingly, the russian justification for using force was to preserve the right of self-determination of the people of donetsk and lugansk people’s republics by relying on the 1970 friendly declarations, “as stipulated in [the] 1970 declaration on principles of international law concerning friendly relations and cooperation among states, must be strictly observed with regard to states that are conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”45 russia’s standpoint, in essence, is taken from the televised statement of vladimir putin.46 alongside the legal articulation in the televised speech, the views of the russian president were political, as there was an unceasing reference to the west’s double standards in intervening in libya, syria and iraq and, thereby, distortion of all the unsc resolutions. 41 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.6. 42 legality of use of force (serbia and montenegro v. italy), preliminary objections, 2004 i.c.j at 481. 43 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.13. 44 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.8. 45 declaration on principles of international law friendly relations and co-operation among states in accordance with the charter of the united nations, 1970, https://www.un.org/ruleoflaw/files/3dda1f104.pdf 46 the kremlin, moscow, address by the president of the russian federation, http://en.kremlin.ru/events/ president/news/67828 https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.un.org/ruleoflaw/files/3dda1f104.pdf http://en.kremlin.ru/events/president/news/67828 http://en.kremlin.ru/events/president/news/67828 international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 12 5.3 icj’s view the icj views the crisis unfolding in ukraine as unfortunate and deplores the violations of international law.47 moreover, the icj acknowledged that several forums have taken up issues involving both parties. however, the icj points out that the present case is specific to the genocide convention. as was interpreted in its earlier jurisprudence of gambia v. myanmar, the icj tested the three criteria necessary for indicating provisional measures and, as contended by ukraine, i.e., a) prima facie jurisdiction, b) plausibility, c) risk of irreparable loss and urgency. to determine the prima facie jurisdiction, the icj had to gauge the existence of a ‘dispute’ between the parties.48 in pursuant to this, the icj looked into the statements made by senior officials representing the state organs, in particular, looked into the statement of the russian president, mr. vladimir putin, wherein reference was made to the situation in donbas as a “horror and genocide, which almost 4 million people are facing (bbc, 2022).” it was specifically mentioned that the purpose of the special operation was “to protect people who have been subjected to abuse and genocide by the kyiv regime for eight years (lopez, worthington, 2022).” in response to the statement of the russian president, ukrainian authorities disagreed with the same in a statement issued on 26th february 2022, accordingly, “ukraine strongly denies russia’s allegations of genocide and disputes any attempt to use such manipulative allegations as an excuse for russia’s unlawful aggression.”49 therefore, the icj, by reference to the contrary views of russia and ukraine and without delving into the substantive requirements, considered that there is an existence of a ‘dispute’ in terms of disagreement of fact and law. regarding the second limb of the argument, i.e., ‘plausibility’, ukraine contended that it was falsely implicated for ‘genocide’ and therefore, not to be subject to another state (russia) in its territory, as it is a brazen violation of art. i and iv of the genocide convention, i.e., obligation in good faith to take measures to prevent and punish the act of genocide. here the primary argument by ukraine was that russia’s means of enforcing the genocide convention in terms of the use of force is not bona fide. the icj explicated that the means to act in good faith to prevent genocide is codified in the convention, i.e., art. viii, ix, and the preamble.50 article viii of the genocide convention requires the calling upon other organs of the un to take action to suppress the acts of genocide or other acts enumerated in art. iii 47 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.5. 48 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), (2020), https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord01-00-en.pdf. 49 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.10. 50 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.13. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/public/files/case-related/178/178-20200123-ord-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 13 of the genocide convention.51 art. ix requires the states to submit the dispute to the icj relating to the convention's interpretation, application, or fulfilment.52 the icj also noted that the states could undertake other means to prevent genocide. however, it should fall within the contours of international law. interestingly, the icj did not respond to whether a state could use force to prevent genocide, as it is a matter that was required to be clarified on the merits, and hence, did not harp on the question as to whether genocide was committed. a preliminary glance at the position adopted by the icj would reveal that ‘use of force’ is certainly not within the rubric of international law as it was outlawed as early as the 1920s. the icj, taking into cognisance the first two requests of ukraine aimed at preserving its rights, agreed that it fell within the ambit of the ‘plausibility test’, as the third and the fourth request of ukraine were directed at preventing any action which would aggravate the existing dispute is not the subject of the ‘plausibility test’. concerning the third contention of risk of irreparable prejudice and urgency, the icj had to satisfy the condition of ‘urgency’, which according to the icj, can arise at any moment before the icj could make the final decision in the case. in light of the humanitarian situation in and around ukraine, the icj regards that the situation caused irreparable prejudice to this right and that there is urgency in the sense that there is a real and imminent risk. the declaration of judge bennouna highlights the significance of the genocide convention as, …’one of the major conventions of the united nations, a monument of human civilisation.’53 5.4 third-party intervention in russia-ukraine: aftermath article 63 of the icj statute codifies third-party intervention, and the provision reads as: “…construction of a convention to which states other than those concerned in the case are parties in question.”54 additionally, article 82(1) rules of the court (1978) requires a state intervening to file a declaration before the court.55 moreover, the intervention should relate to the substantive question of interpretation and application of the conventions. in the case of nicaragua v united states of america, el salvador sought to intervene to prove that the icj lacked jurisdiction; thereby, it made procedural and substantive claims under article 36(2) of the icj statute and article 51 of the un charter. the icj rejected the intervention as it was unrelated to the substantive question relating to the convention, as it “…relate[d] to the proceedings’ current phase between nicaragua and the united states (alexander, 2022).” 51 convention on the prevention and punishment of the crime of genocide, 1948, https://www.un.org/ en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20 and%20punishment%20of%20the%20crime%20of%20genocide.pdf 52 ibid. 53 declaration of judge bennouna, available at https://www.icj-cij.org/sites/default/files/case-related/ 182/182-20220316-ord-01-02-en.pdf at para 3. 54 statute of the international court of justice, available at https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e. pdf 55 rules of court (1978) adopted on 14 april 1978 and entered into force on 1 july 1978, available at https://www.icj-cij.org/rules https://doi.org/10.17561/tahrj.v21.7781 https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention%20on%20the%20prevention%20and%20punishment%20of%20the%20crime%20of%20genocide.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-02-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-02-en.pdf https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf https://www.icj-cij.org/rules international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 14 the intervention by states in advisory opinions is a common practice in the icj, but seldom is there mass intervention in contentious cases (alexander, 2022; mcgarry, 2022). in the aftermath of the provisional measures in ukraine-russia, several states filed applications for intervention.56 these interventions covered both the questions of merits and jurisdiction57, for instance, latvia’s declaration was related to “[t]he jurisdiction granted to the court by article ix includes disputes in which a state alleges that another state has committed genocide.”58 further, on article i of the genocide convention, latvia contends that it has to be interpreted in good faith in line with the provisions of the genocide convention. the views of latvia were echoed in the declaration of the u.k and germany whereby it argued for the broad interpretation of article ix of the genocide convention. in these interventions, states have also emphasised the humanitarian nature of the genocide convention. for instance, liechtenstein contends, “convention's object and purpose also include a common interest for all contracting parties to find out whether specific acts indeed qualify as genocide as defined in article ii of the convention to be in a position at all to accomplish the ‘humanitarian and civilising purpose’ to prevent and punish this crime.”59 slovenia’s declaration highlights that the convention’s object is to protect the most elementary ‘principles of morality’, thus proscribes any state from abusing the provisions of the convention. it states, “…it (abuse) would undermine the convention's credibility as a universal instrument to outlaw the most abhorrent crime of genocide if its authority could be abused by any state party without a possibility of the victim of such abuse to turn to the court.”60 moreover, states have also argued that the rights and obligations enshrined under the genocide convention reflect erga omnes partes and jus cogens.61 as norway rightly puts it, “the prevention of genocide is a worldwide task for the benefit of humankind, not a matter for the protection of national interests.”62 56 as of date, thirty-two states have filed declarations for intervention, see https://www.icj-cij.org/case/182/ intervention 57 see the declaration of liechtenstein, available at https://www.icj-cij.org/sites/default/files/caserelated/182/182-20221215-wri-01-00-en.pdf 58 declaration of intervention of the republic of latvia, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20220719-wri-01-00-en.pdf 59 declaration of intervention under article 63 of the principality of liechtenstein, available at https:// www.icj-cij.org/sites/default/files/case-related/182/182-20221215-wri-01-00-en.pdf 60 declaration of intervention of the republic of slovenia, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20221208-wri-02-00-en.pdf para 29. 61 declaration of intervention of the slovak republic, available at https://www.icj-cij.org/sites/default/files/ case-related/182/182-20221208-wri-01-00-en.pdf para 16; joint declaration of intervention pursuant to article 63 of the statute of the court by the governments of canada and the kingdom of the netherlands, available at https://www.icj-cij.org/sites/default/files/case-related/182/182-20221207-wri-02-00-en.pdf para 11; declaration of intervention submitted by malta, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20221124-wri-01-00-en.pdf para11. 62 declaration of intervention under article 63 of norway, available at https://www.icj-cij.org/sites/default/ files/case-related/182/182-20221124-wri-02-00-en.pdf para 29; declaration of intervention of the republic of bulgaria, czech republic available at https://www.icj-cij.org/sites/default/files/caserelated/182/182-20221118-wri-01-00-en.pdf para 11; declaration of intervention of the republic of croatia, available at https://www.icj-cij.org/sites/default/files/case-related/182/182-20221019-wri-0100-en.pdf para 10. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/case/182/intervention https://www.icj-cij.org/case/182/intervention https://www.icj-cij.org/sites/default/files/case-related/182/182-20221215-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221215-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220719-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220719-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221215-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221215-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221208-wri-02-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221208-wri-02-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221208-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221208-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221207-wri-02-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221124-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221124-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221124-wri-02-00-en.pdf para 29 https://www.icj-cij.org/sites/default/files/case-related/182/182-20221124-wri-02-00-en.pdf para 29 https://www.icj-cij.org/sites/default/files/case-related/182/182-20221118-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221118-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221019-wri-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20221019-wri-01-00-en.pdf atul alexander the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 15 6. analysis in the cases brought against nato states by serbia and montenegro, and yugoslavia, the icj rendered a strict interpretation of the genocide convention in the provisional measures stage. the icj penetrated the question of the ‘merit’ in terms of fulfilling the ‘intention’ requirement. regardless of the prima facie requirement, the icj could have indicated provisional measures based on urgency not to aggravate the dispute, in contrast to its earlier opinion in light of the lagrand case (germany v. the united states of america).63 the icj should have intervened and expressed concern over profound human suffering and misery rather than relying excessively on formalistic requirements. the recent decisions of the icj on provisional measures pertaining to the genocide convention is flexible. the popular test employed is, a) prima facie jurisdiction, b) plausibility, and c) risk of irreparable prejudice and urgency. however, the icj rejected the contention of ukraine requesting russia to provide “a report to the court on measures taken to implement the court’s order on provisional measures one week after such order and then on a regular basis to be fixed by the court”,64 unlike the case of myanmar wherein it was held that the “republic of the union of myanmar shall submit a report to the court on all measures taken to give effect to this order within four months, as from the date of this order and thereafter every six months until the court renders a final decision on the case.”65 in the case of bosnia v. serbia,66 the icj stated that the obligation to prevent genocide beyond the state border entails the capacity to influence the genocidal actor and employ ‘all reasonable means’ available. therefore, russia’s justification for intervening in eastern ukraine aligns with the icj dicta in bosnia v serbia. however, all reasonable means, whether it encompasses the use of force, was not answered in the case nor the subsequent cases. this is akin to article 4 of the draft articles on prevention and punishment of crimes against humanity, which clarifies the scope of the obligation to prevent to mean, viz. “each state undertakes to prevent crimes against humanity, in conformity with international law, through … (b) cooperation with other states, relevant intergovernmental organisations, and, as appropriate, other organisations (glanville, 2021)”. the progress in the jurisprudence of the icj in the 63 declaration of judge shi, 775, https://www.icj-cij.org/public/files/case-related/112/112-19990602-ord01-01-en.pdf 64 allegations of genocide under the convention on the prevention and punishment of the crime of genocide (ukraine v. russian federation), request for the indication of provisional measures, available at https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf at p.18. interestingly the icj did not provide the rationale behind not demanding the report from the russian federation. 65 application of the convention on the prevention and punishment of the crime of genocide (the gambia v. myanmar), provisional measures, 2020 i.c.j 31. 66 application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. serbia and montenegro), 2007 i.c.j, 220. https://doi.org/10.17561/tahrj.v21.7781 https://www.icj-cij.org/public/files/case-related/112/112-19990602-ord-01-01-en.pdf https://www.icj-cij.org/public/files/case-related/112/112-19990602-ord-01-01-en.pdf https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-sum-01-00-en.pdf international court of justice and provisional measures under the genocide convention: curious case of ukraine v. russian federation the age of human rights journal, 21 (december 2023), e7781 issn: 2340-9592 doi: 10.17561/tahrj.v21.7781 16 case russia-ukraine also sets out a limit on the obligation to prevent genocide in the sense that states cannot go all out in breach of international law to safeguard against the act of genocide extraterritorially. 7. conclusion the icj has provided a flexible interpretation of the genocide convention, reiterating its importance in safeguarding the common interest of states. in the case of russia-ukraine, the icj confirmed that the obligation to prevent genocide should be within the confines of international law. thus, ensuring that the provision of the genocide is not abused in the context of the obligation to prevent genocide. the icj rightly did not clarify whether states could use force to prevent genocide, which it reserved for the merits. further, the states intervening in the icj have asserted the humanitarian nature of the genocide convention, and states have also confirmed its erga omnes partes and jus cogens status. this position was reflected in the genocide reservations case (advisory opinion); this is notwithstanding a brief departure from icj’s narrow interpretation of the genocide convention in the provisional measures on the nato bombings of yugoslavia. however, in recent opinions involving the genocide convention, the icj has shifted its narrative to a liberal approach in recognising the victims’ fundamental rights in conflicts. it is recommended that the icj follow the same template in its prospective provisional measures involving genocide convention, thereby ensuring legal certainty. references abass, a. 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[online]. available at: doi: 10.18352/ulr.155. received: 20th february 2023 accepted: 25th may 2023 https://doi.org/10.17561/tahrj.v21.7781 https://www.un.org/en/genocideprevention/genocide-convention.shtml https://news.un.org/en/story/2022/03/1113692 https://doi.org/10.1093/ejil/chr003 https://doi.org/10.18352/ulr.155 international court of justice and provisional measures under the genocide convention: curious c abstract 1. introduction 2. provisional measures: utility 3. genocide convention: a slice from the past 4. genocide convention and provisional measures 5. russia-ukraine provisional measures 5.1 ukraine’s contentions 5.2 russia’s contention 5.3 icj’s view 5.4 third-party intervention in russia-ukraine: aftermath 6. analysis 7. conclusion references the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 51 the flotilla incident from the perspective of international law and the judicial rights of the victims ömer bedi̇r1 abstract: the mavi marmara flotilla, which sailed for a humanitarian mission and aimed to break the israeli blockade to gaza, was intercepted by the israeli soldiers on high sea on 31st may 2010. in this raid, nine civilians have lost their lives on the spot and 55 others were wounded. states and their agents can be held accountable if they commit crimes. therefore, the mavi marmara victims have the right to sue at national and international level the israeli officers who took part in the operation. some victims have filed criminal and civil cases before the turkish courts against israel and its officers. besides these judicial cases brought before the national courts, a referral was also made by the union of the comoros, flag country of the mavi marmara vessel, to the international criminal court. meanwhile, turkey and israel have signed a bilateral agreement for the compensation of the bereaved families. this compensation agreement clears israel and its officers off all legal responsibilities arising from the flotilla incident before the turkish courts. this bilateral agreement is a legal obstruction imposed to the victims in their quest of justice. the turkish court of cassation, in its recent decisions, has requested the courts of first instance to take into consideration the provisions of the said agreement. despite the above mentioned agreement, the victims shall have still the right to sue the israeli officials responsible for the flotilla incident before national, foreign and international courts, on the grounds of crime against humanity, provided that the necessary requirements are fulfilled. keywords: compensation agreement, international criminal court, international law, mavi marmara flotilla, san remo manual summary: 1. introduction. 2. israel’s blockade against gaza from the perspective of international law. 3. israeli military intervention to the mavi marmara flotilla from the perspective of international law. 4. international reports regarding the mavi marmara incident. 4.1. un human rights council, fact finding mission’s report. 4.2. report of the secretary-general’s panel of inquiry (palmer report). 5. the legal responsibility of israel and its officers in the flotilla incident and the judicial rights of the victims. 5.1. decision of the office of the prosecutor of the international criminal court regarding the mavi marmara incident. 5.2. procedural agreement on compensation between the republic of turkey and the state of israel. 5.3. verdicts of the turkish court of cassation regarding the mavi marmara victims’ claims in the aftermath of the signing of the procedural agreement between turkey and israel. conclusions. 1. introduction the main objective of the mavi marmara flotilla was to draw the attention of the international community to the israeli blockade on gaza and, if possible, to break 1 mr. ömer bedir has a bachelor’s degree in public administration from marmara university, istanbul. he received a master’s degree on eu and political science from iep de strasbourg. he was admitted to the renowned french école e.n.a. (ecole nationale d’administration) where he followed the “cycle international longue” program. he received phd degree on modern turkish history from hacettepe university, ankara. he worked between 2005-2016 as a career diplomat at the turkish ministry of foreign affairs. he served in several turkish diplomatic missions abroad. he is currently an independent researcher specialized on international relations and human rights issues. (omerbedir@hacettepe.edu.tr). the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 52 symbolically this blockade. in this respect, the mavi marmara and the other accompanying vessels were transporting food and medicine for gazan people. the passengers on these vessels were volunteers and human rights defenders from several countries. although the israeli authorities were aware of the flotilla’s mission and the nature of cargo it was transporting, they have intervened the mavi marmara and other accompanying vessels on 31st may 2010, on high seas. during the raid, nine persons were killed and many volunteers were wounded. the disproportional intervention of the israeli forces against unarmed civilians on high seas has caused outrage of the international community. due to the intensifying pressure of the international public opinion, the israeli authorities were compelled to alleviate the blockade against gaza. along with this modest step, the israeli authorities tried to justify their military intervention to the flotilla from the perspective of international law, while the turkish government accused the israeli authorities for violating basic principles of the international law and for killing turkish citizens in international waters. in the first part of this article, the legality of the israeli blockade against gaza will be discussed from the perspective of international law and the “san remo manual on international law applicable to armed conflicts at sea”2 (hereinafter, san remo manual). in the second part, the legality of the israeli military intervention to the flotilla on high sea will be examined from the perspective of international law. in the third part, the international reports regarding the mavi marmara flotilla incident and their contradictory conclusions will be analyzed. in the fourth section, the legal responsibility of the israeli authorities in the incident and the victims’ rights to sue israel and its officers at international and national levels will be treated. in this respect, the referral of the union of the comoros (hereinafter, comoros), flag state of the mavi marmara vessel, against israel before the international criminal court (icc) will be treated. subsequently, the agreement between turkey and israel regarding the compensation of the mavi marmara victims will be examined article by article; and consequently, the recent decisions of the turkish court of cassation regarding the indemnity claims of the mavi marmara victims, upon the conclusion of the said agreement, will be explored. 2. israel’s blockade against gaza from the perspective of international law the blockade imposed to gaza since 2007 by the israeli authorities3 has deprived the civilians from food, medicine and sufficient access to public services, such as electricity, 2 “san remo manual on international law applicable to armed conflicts at sea”, a reference for international customary law, was drafted between 1987 and 1994 by military experts, former diplomats and academics specialized on maritime issues. the san remo manual sets the conditions and limits of the use of force in conflicts at seas and oceans. this manual, which is not binding as an international legal document, is a reference point for the international customary law to determine the rules of engagement and the rules to respect during the conflicts at seas and oceans. 3 israel claims that the naval blockade was imposed in 2009 and not in 2007. before that date, land and air blockades were already in force. in the israeli national report regarding the flotilla incident, it is read that ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 53 clean water, health services etc. it is widely accepted by the international community that the gaza people is denied from essential humanitarian needs and that their daily lives have become unsustainable (amnesty international, 2017). israeli authorities have pretended that the objective of the naval blockade was to deny the access of weapons to gaza and therefore the blockade was legitimate (israeli national report-1, para. 48). in fact, israel could prevent arms trafficking to gaza by regular border controls and did not need to impose a complete and severe blockade. meanwhile, some israeli politicians have declared that the objective of the blockade was to punish gaza people for their support to hamas in 2006 elections, and expected that, thanks to the blockade, the gaza people will blame hamas for their sufferings and eventually the latter will lose popularity and support on the ground (the independent, 2014). it is clear that such a political reasoning cannot justify a blockade from the perspective of international law. according to the san remo manual, a blockade in conformity with international law shall: – be declared and notified to all belligerents and neutral states (article 93) – the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral states may leave the blockaded coastline be declared (article 94) – not have the sole purpose of starving the civilian population or denying it other objects essential for its survival. the damage to the civilian population shall not be excessive in relation to the concrete and direct military advantage anticipated from the blockade (article 102) – permit the passage of adequate food and other objects essential for the survival of the civilian population living in the blockaded territory. the blockading party must provide for free passage of such foodstuffs and other essential supplies (article 103). in contradiction with article 94 of the san remo manual, the decade-long blockade of israel on gaza seems to be permanent.4 a blockade cannot last for an indefinite period and shall cease at the earliest possible. it is largely accepted by the international public opinion that the gaza people do not have access to basic humanitarian needs and suffer severely from the blockade (reuters, 2010; un radio, 2010), which shows that the articles 102 and 103 of the san remo manual are ignored. “after the hamas terrorist organization seized control of the gaza strip in june 2007, the government adopted various measures. later, on january 3, 2009, a naval blockade was also imposed on the gaza strip.”, (israeli national report-1, para. 1). 4 israeli authorities have not envisaged any deadline for the naval blockade. in the israeli national report regarding the flotilla incident, it is stated that “the notmar of january 3, 2009, states that ‘gaza maritime area is closed to all maritime traffic and is under blockade imposed by the israeli navy until further notice.”, (israeli national report-1, para. 59.) the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 54 on the other hand, according to the international law, the palestinian territories are under occupation and the occupier has obligations, such as protecting civilians, ensuring basic humanitarian needs like food, medicine etc., towards the population of the occupied lands. due to the blockade, the occupying force, namely israel, fails to fulfill its responsibilities towards palestinians. israel pretends that with its withdrawal from gaza in 2005, its responsibilities stemming from international humanitarian law as an occupier force have ceased (israeli national report-1, para. 23). despite the israeli withdrawal from gaza in 2005, israel continued to control land, aerial and naval entry-exit points to and from gaza; checked customs and cargos; controlled communication and even collection of taxes. therefore it is hard to assess that the responsibilities arising from the occupier status have terminated. “the report of the united nations fact-finding mission on the gaza conflict”5 underlines that, “given the specific geopolitical configuration of the gaza strip, the powers that israel exercises from the borders enable it to determine the conditions of life within the gaza strip. israel controls the border crossings (including to a significant degree the rafah crossing to egypt, under the terms of the agreement on movement and access) and decides what and who gets in or out of the gaza strip. it also controls the territorial sea adjacent to the gaza strip and has declared a virtual blockade and limits to the fishing zone, thereby regulating economic activity in that zone. it also keeps complete control of the airspace of the gaza strip, inter alia, through continuous surveillance by aircraft and unmanned aviation vehicles (uavs) or drones. it makes military incursions and from time to time hit[s] targets within the gaza strip. no-go areas are declared within the gaza strip near the border where israeli settlements used to be and enforced by the israeli armed forces. furthermore, israel regulates the local monetary market based on the israeli currency (the new sheqel) and controls taxes and custom duties.” (un human rights council report, 25 september 2009, para. 278). israel argues also that it is in an armed conflict with hamas and therefore the blockade against gaza is legal and legitimate (israeli national report-1, paras. 41 and 171). despite the above mentioned arguments of the israeli authorities, it is hard to consider the blockade as legal since article 33 of the fourth geneva convention prohibits collective punishment.6 unhrc report characterized the blockade as a form of “collective punishment” and made the following observation: “the conditions of life in gaza, resulting from deliberate actions of the israeli armed forces and the declared policies of the government of israel – as they were presented by its authorized and legitimate representatives – with regard to the gaza 5 the united nations fact-finding mission on the gaza conflict was headed by justice richard goldstone, former judge of the constitutional court of south africa and former prosecutor of the international criminal tribunals for the former yugoslavia and rwanda. 6 “no protected person may be punished for an offence he or she has not personally committed. collective penalties and likewise all measures of intimidation or of terrorism are prohibited. pillage is prohibited. reprisals against protected persons and their property are prohibited.”, geneva convention relative to the protection of civilian persons in time of war, 12 august 1949, article 33. ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 55 strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the gaza strip in violation of international humanitarian law.” (un human rights council report, 25 september 2009, para. 74). 3. israeli military intervention to the mavi marmara flotilla from the perspective of international law articles 41 and 42 of the san remo manual stipulate that the attacks at seas shall be limited strictly to military targets and civilians not be targeted. in addition to this, article 47 exempts “vessels engaged in humanitarian missions” and “passenger vessels” from attacks7 and article 136 exempts them from capture. on the other hand, according to the articles 67, 98 and 146 of the san remo manual, “merchant vessels” trying to breach a blockade can be captured and, if they resist, can be attacked. israeli authorities have referred to these articles of the manual with a view to justifying their military intervention to the flotilla (israeli national report-1, paras. 176-177). the israeli armed forces have intervened the flotilla on high seas at 72 nautical miles (approximately 133 km) far from the coast. the high seas are open to all states, whether coastal or land-locked. freedom of the high seas is exercised under the conditions laid down by the united nations convention on the law of the sea (unclos).8 any unfounded, unjustified intervention to vessels sailing on the high seas is therefore a violation of freedom of navigation.9 to justify the military intervention to the flotilla, the israeli authorities have claimed also that the flotilla passengers had arms (ministry of foreign affairs of israel, 2010). by arms, the latter in fact referred to clubs, iron rods, slingshots and knives used by the attacked passengers. it should be noted that the vessels and their passengers were 7 according to the article 47 of the san remo manual, the following classes of enemy vessels are exempt from attack: (a) hospital ships;… (i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war; (ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations;…see. “san remo manual on international law applicable to armed conflicts at sea”. available at http://www. icrc.org/eng/resources/documents/misc/57jmsu.htm (accessed: 06 november 2019). 8 see. united nations convention on the law of the sea, 1982, article 87. 9 the following articles of the unclos envisage exceptionally the detention, seizure or arrest of vessels on high seas: detention of a vessel by its flag state upon collision or any other incident of navigation on high seas (article 97) detention, seizure or arrest of a vessel engaged in transportation of slaves (article 99) seizure of a pirate ship or aircraft (article 105) detention, seizure or arrest of vessels engaged in illicit trafficking of narcotic drugs or psychotropic substances (article 108) arrest or seizure of vessels engaged in unauthorized broadcasting from high seas (article 109) stop or arrest of vessels upon the right of hot pursuit (article 111) see. united nations convention on the law of the sea, 1982. the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 56 subject to the relevant security checks at customs and maritime border gates before their departure (uluslararası hak i̇hlalleri i̇zleme merkezi-international center for watching violations of rights, 2010). taking into account that the mavi marmara flotilla passengers were unarmed civilians; that it was transporting food and medicines; that it had a humanitarian mission and this was declared to the international community; that the israeli military intervention took place on high seas and has resulted with the death of nine civilians and the injury of 55 persons (unsg panel of inquiry report, para. 56) it is hard to argue that the military intervention to the flotilla was in conformity with international law.10 4. international reports regarding the mavi marmara incident in the aftermath of the israeli attack to the mavi marmara flotilla, the united nations security council (unsc) gathered in an urgent meeting on 1st june 2010. the unsc condemned the military intervention and called for the initiation of an impartial, reliable and transparent international investigation of the incident (the guardian, 2010). the united nations human rights council (unhrc) for its part has adopted on 2nd june 2010 its decision no:14/1 and condemned the israeli attack on high seas. the unhrc has also requested the investigation of the incident on the basis of international law, international humanitarian law and human rights violations (un human rights council resolution, 2 june 2010). upon the request of the united nations secretary general, mr. ban-ki moon, a panel of inquiry has been established to investigate the incident. in addition to this, as per the decision of the unhrc, a fact-finding mission has been commissioned to investigate the same issue. these two separate commissions have prepared their own reports and shared the below observations and conclusions with the international community. it should also be noted that apart from these international reports, turkey11 and israel12 have also drafted their own national reports reflecting their opposing views with regard to the flotilla incident. 10 israel’s military intervention is also in contradiction with the “convention for the suppression of unlawful acts against the safety of maritime navigation” which was signed on 10 march 1988 in rome. for further information see, www.imo.org./en/about/conventions/listofconventions/pages/sua-treaties.aspx. (accessed: 19 september 2019). 11 the turkish government has disclosed its national report in february 2011. for further information see, turkish national commission of inquiry, report on the israeli attack on the humanitarian aid convoy to gaza on 31 may 2010, ankara, february 2011, available at http://www.mfa.gov.tr/data/turkish%20 report%20final%20-%20un%20copy.pdf (accessed: 14 september 2019). 12 the israeli government has disclosed its national report regarding theflotilla incident in january 2011. the israeli government has disclosed in february 2013 a second report titled “the public commission to examine the maritime incident of 31 may 2010, the turkel commission, second report, israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law”, february 2013, available at www.gov.il/blobfolder/generalpage/ downloads_eng1/eng_turkel_eng_b1-474.pdf (accessed: 28 february 2020). for an extensive analysis of the israeli national report of january 2011, see norman finkelstein. (2014) “what happened on the mavi ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 57 4.1. un human rights council, fact finding mission’s report unhrc fact-finding mission13 submitted its report on 27 september 2010. in its report, the mission underlined that the naval blockade of israel was unlawful and illegal (un human rights council report, 27 september 2010, para. 261). it stressed that the israeli military intervention to the flotilla on high seas was a flagrant violation of international law and could not be considered as a legitimate self-defense act in accordance with article 51 of the un charter (ibid., 27 september 2010, para. 262). the report also states that the israeli blockade has turned into a collective punishment of the civilian population in gaza (ibid., 27 september 2010, para. 263) and concluded that the military intervention to the flotilla was disproportional and has caused severe human rights breaches (ibid., 27 september 2010, para. 264). 4.2. report of the secretary-general’s panel of inquiry (palmer report) the secretary-general’s panel of inquiry,14 which launched its investigation on 10 august 2010, has disclosed its report in july 2011. the conclusions of the panel of inquiry15 contradict largely the conclusions of the unhrc fact-finding mission’s report. in the palmer report, it is stated that “the naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering gaza by sea and its implementation complied with the requirements of international law.” (unsg panel of inquiry report, july 2011, p. 4). the panel has considered that the conflict between hamas and israel should be treated as an international one for the purposes of the law of blockade (ibid., para. 73). according to the panel, through the blockade, israel has exerted its right to self-defense in compliance with article 51 of the un charter (ibid., marmara? an analysis of the turkel commission report”, türkiye ortadoğu çalışmaları dergisi (turkish journal of middle eastern studies), vol: 1, issue: 2, pp. 31-53. 13 members of the un human rights council fact finding mission: 1. karl t. hudson-phillips (retired judge of the international criminal court and former attorney general of trinidad and tobago), 2. sir desmond de silva (former chief prosecutor of the united nations-backed special court for sierra leone), 3. ms. mary shanthi dairiam (founding member of the board of directors of the international women’s rights action watch asia pacific and former member of the committee on the elimination of discrimination against women), see. (un human rights council report, 27 september 2010, para. 2). 14 members of the secretary-general’s panel of inquiry: 1. sir geoffrey palmer (former prime minister of new zealand), as chair, 2. sir alvaro uribe (former president of colombia), as vice-chair, 3. mr. joseph ciechanover itzhar (representative of israel), as member, 4. mr. süleyman özdem sanberk (representative of turkey), as member. see. (unsg panel of inquiry report, july 2011, p11). 15 it should be noted that the panel’s working method was to operate by consensus, but where, despite best efforts, it was not possible to achieve consensus, the chair and vice-chair could agree on any procedural issue, finding or recommendation. the report was adopted on the agreement of the chair and vicechair under that procedure. see, unsg panel of inquiry report, july 2011, p. 3; the turkish and israeli representatives in the panel of inquiry have expressed their reservations to the conclusions of the report through separate statements attached to the said report. see. (ibid., pp. 104-105). the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 58 para. 71). the panel has thus concluded that the blockade was legal from the perspective of international law (ibid., paras. 81-82). with regard to the israeli military intervention to the flotilla, the panel asserts that “for israel to maintain the blockade it had to be effective, so it must be enforced. that is a clear legal requirement for a blockade. such enforcement may take place on the high seas and may be conducted by force if a vessel resists…” (ibid., para. 109). thus, the panel considers that a military intervention, even on high seas, is legitimate in order to enforce a blockade.16 in the report, it is also stated that the israeli military operation which resulted with the killing of nine civilians and injury of many people was excessive and unreasonable (ibid., para. 117). therefore, the israeli government shall present its regret and offer payment for the benefit of the deceased and injured victims and their families (ibid., para. 167). and finally in the report, the parties are invited to resume full diplomatic relations, to repair their relationship in the interests of stability in the middle east and international peace and security (ibid., para. 169). 5. the legal responsibility of israel and its officers in the flotilla incident and the judicial rights of the victims states have always been the main actors of international law. real persons remain largely vulnerable against the abuses and human rights violations of the states. particularly after the wwii, international mechanisms were sought to protect human rights against the states’ mal practices. in this regard, real and legal persons have appeared as emerging actors of international law and appropriate international human rights law mechanisms were developed to protect their rights and freedoms (cançado trindade, 2008, pp. 11-26). in modern international law, states can be held accountable for the prejudices they caused to real or legal persons through their actions or inactions. the israeli authorities have deliberately attacked the mavi marmara flotilla in international waters: the flotilla was sailing for a humanitarian mission to gaza; the passengers were unarmed civilians and human rights defenders; nine civilians17 were killed on the spot by real bullets. in this incident, many persons have suffered prejudice due to 16 this observation of the panel arises a simple question: where and what is the limit for any military intervention seeking the enforcement of a blockade? see, yusuf aksar. (spring 2012) ‘birleşmiş milletler palmer (mavi marmara) raporu ve uluslararası hukuk’ (united nations palmer (mavi marmara) report and international law), uluslararası i̇lişkiler dergisi (journal of international relations), vol: 9, issue: 33, pp. 26-30. 17 nine civilians have lost their lives in the israeli raid onto the flotilla on 31st may 2010. one injured person has lost his life in the aftermath of the incident. in total, ten persons have lost their lives. nine of them were turkish citizens and one person had turkish-american dual citizenship. the names of the deceased are as below: 1. -çetin topçuoğlu, 2-fahri yaldız, 3-ali haydar bengi, 4-cengiz akyüz, 5-cengiz songür, 6-furkan doğan (turkish-american citizen), 7-i̇brahim bilgen, 8-necdet yıldırım, 9-cevdet kılıçlar, 10-uğur süleyman söylemez. see. (un human rights council report, 27 september 2010, para. 128 and table deaths of flotilla participants). ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 59 the acts of a state and its agents. the state’s responsibility and individual responsibilities of its agents for their actions require in the first step a judicial investigation and, if the evidences are sufficient, a trial in the next step. the judicial process against the relevant state and its agents can be initiated by the victims or through their representatives before the courts of their countries, or before the courts of the wrongdoing state, or before a third country’s court or before an international court, provided that the necessary requirements are fulfilled for each option. in this respect, the comoros, as the flag state of the mavi marmara vessel,18 has the right to submit an application against israel before the icc. besides this,19 the injured victims and the family members of the deceased victims have also the right to sue the israeli authorities and officers before the israeli courts, before the national courts of their respective countries or before the courts of foreign countries which are vested with universal jurisdiction20 competence on crimes against humanity. 5.1. decision of the office of the prosecutor (otp) of the international criminal court regarding the mavi marmara incident as a state party to the rome statute, the comoros21 has referred on 14 may 2013 the flotilla incident to the icc (letter of referral, 2013). upon this referral, the otp of the icc, taking into account the potential of the commission of war crimes and crimes against 18 vessels in the mavi marmara flotilla and their flag countries are as below: 1mavi marmara (the comoros), 2-defne (kyribati), 3-gazze i (turkey), 4-eleftheri mesogios (greece), 5-sfendoni (togo), 6-challenger 1 (us), 7-challenger 2 (us), 8-rachel corrie (cambodia). see. (ibid., 27 september 2010, annex iii). 19 referring the mavi marmara incident to the international court of justice (icj) could be another possible option. as per the statute of the icj, “only states may be parties in cases before the court” (article 34 of the statute of the icj, 26 june 1945). turkey and israel, if they could have succeeded to reach an agreement, could have brought the case before the icj, in conformity with article 40 of the statute of the icj. or, they could have asked an advisory opinion on the incident from the icj, in conformity with article 65 of the mentioned statute. even if the parties were not able to agree to bring the case before the icj, one of the parties could have procedurally made, in order to exert legal, diplomatic and political pressure on the other side, a unilateral application to the icj, bearing in mind that the icj would probably defer the application for incompetency. apart from turkey and israel, the flag states of the vessels in the flotilla could have also opted to refer the incident unilaterally to the icj for the same motives. 20 the term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for serious crimes against international law, such as crimes against humanity, war crimes, genocide, and torture, based on the principle that such crimes harm the international community or international order itself, which individual states may act to protect. national courts can exercise universal jurisdiction when the state has adopted legislation recognizing the relevant crimes and authorizing their prosecution. the definition and exercise of universal jurisdiction vary around the world. a national or international court’s authority to prosecute individuals for international crimes committed in other territories depends on both the domestic legal framework and the facts of each particular case. see. international justice resource center, available at https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/ (accessed: 24 february 2020). 21 the union of the comoros has been party to the rome statute since 18 august 2006. cambodia, flag state of rachel corrie, and greece, flag state of eleftheri mesogios, are also party to the statute. israel and turkey are not party to the statute. for further information on member states party to the rome statute, see. www.icc-cpi.int/. the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 60 humanity by the israeli military forces on high seas during the said incident, has initiated a preliminary examination. the otp has assessed the referral from the perspectives of jurisdictional competence of the court, and the type and density of the alleged crimes. on 6 november 2014, the otp terminated its preliminary examination and issued a report. the prosecutor was of the opinion that there was a reasonable basis to believe that war crimes under the court’s jurisdiction have been committed in the context of the interception and takeover of the mavi marmara by idf (israel defense forces) soldiers on 31 may 2010. within this framework, the prosecutor observed that willful killing under article 8(2)(a)(i); willfully causing great suffering, or serious injury to body and health under article 8(2) (a)(iii); committing outrages upon personal dignity under article 8(2)(b)(xxi); and, if the blockade of gaza by israel is to be deemed unlawful, also intentionally directing an attack against civilian objects under article 8(2)(b)(ii) of the rome statute were violated (iccotp report, 6 november 2014, para. 19). however, according to the prosecutor, “the potential case(s) that would likely arise from an investigation into the situation would not be of sufficient gravity to justify further action by the court and would therefore be inadmissible pursuant to articles 17(1)(d) and 53(1)(b) of the statute” (ibid., 6 november 2014, para. 150). thus, the otp considered the application of the comoros inadmissible and decided to close the file (ibid., 6 november 2014, para. 151). the “sufficient gravity” criterion to which the otp has referred is highly controversial as it is a non-objective notion. the gravity term22 is not defined neither in the “statute” nor in the “rules of procedure and evidence” of the icc. thus, the gravity criterion appears to be subject to interpretation, depending on the case, conjuncture, and even the personality of the prosecutor. as seen above, the otp, on the one hand, asserts that there is a reasonable basis to believe that war crimes under the court’s jurisdiction have been committed during the flotilla incident; on the other hand, concludes that these are not of sufficient gravity to initiate an investigation. the relativity of gravity (longobardo, september 2016, pp. 1011-1030) needs to be questioned and clarified for the sake of justice and icc mechanisms’ efficiency and credibility.23 an important feature of the mavi marmara dossier before the icc is that, following a referral of a state party, the icc prosecutor has decided for the first time not to initiate an investigation. as meloni underlines correctly, the otp’s discretion to initiate or not to initiate an investigation, one the most debated issues in recent international criminal law 22 the gravity term has been used eleven (11) times in the icc statute and just once in the icc rules of procedure and evidence. 23 the icc organs, namely otp, ptc and appeals chamber, have tried to interpret the statutory gravity threshold through jurisprudence within the time (longobardo, november 2016, pp. 21-41). regulations of the office of the prosecutor, adopted on 23 april 2009, have tried to determine basic principles to assess the gravity threshold and thus ensure a convergence on the issue. article 29(2) of the said regulations reads as follow: “in order to assess the gravity of the crimes allegedly committed in the situation the office shall consider various factors including their scale, nature, manner of commission, and impact.” the mavi marmara flotilla case confirms once again that there is still no convergence on the gravity assessment among otp and other icc organs. ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 61 commentaries, is crucial; and any improper exercise of this discretional power can spoil the credibility of and confidence to the icc mechanisms (meloni, 2016, p. 5). upon the refusal decision of the otp to initiate an investigation, the comoros has submitted, on 29 january 2015, to the “pre-trial chamber i” (ptc-i) a petition of objection against the said decision (union of the comoros, 29 january 2015). the ptc-i has considered the objection reasonable and, on 16 july 2015, asked the otp to reconsider its decision of deferral (icc-ptc-i, 16 july 2015, paras. 50-51). this act of ptc-i is crucial in the sense that it has exercised for the first time its review power, under article 53(3) of the statute, of a prosecutor’s decision not to open an investigation (meloni, 2016, p. 4). on the other side the otp, which considered this as an interference to its sphere of discretion, has filed without delay an appeal against the ptc-i’s afore-mentioned decision (icc-otp, 27 july 2015, para. 31). on 6 november 2015, the appeals chamber of the icc decided by majority to dismiss, in limine and without discussing its merits, the prosecutor’s appeal against the decision of the ptc-i requesting the prosecutor to reconsider the decision (icc-appeals chamber, 6 november 2015, paras. 66-67). however, the otp has maintained its previous decision and declared on 29 november 2017 that the conditions to initiate an investigation were still not present (icc-otp, 29 november 2017, annex 1, paras. 332-334). on 23 february 2018, the legal representatives of the comoros have filed a second “application for judicial review by the government of the union of the comoros” before the ptc-i (union of the comoros, 23 february 2018). upon this new application, the ptc-i has requested once again, on 15 november 2018, the otp to revise its decision not to initiate an investigation regarding the flotilla incident (iccptc-i, 15 november 2018, para. 117). the otp has once more appealed the decision of the ptc-i (icc-otp, 21 november 2018, para. 25). on 2 september 2019, the appeals chamber of the icc has delivered its judgment and rejected the appeal of the prosecutor against the decision of the ptc-i (icc-appeals chamber, 2 september 2019, para. 96). the appeals chamber’s judgment was taken by majority and requested the prosecutor to reconsider its decision on the comoros’ referral, by 2 december 2019, in light of the specific directions of the ptci’s 16 july 2015 decision and the directions of the appeals chamber (ibid, para. 96; icc, press release, 2019). but the otp insisted on its previous decisions and closed the file for a second time for the icc arguing that “there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the court” (icc-otp, 2 december 2019, annex 1, para. 97). the legal representatives of the comoros have submitted on 2 march 2020 to ptc-i, for the third time, an “application for judicial review by the government of the comoros”. in this third application, the comoros criticizes harshly the attitude of the prosecutor and accuse her for not being impartial on the dossier (union of the comoros, 2 march 2020, paras. 105-111); requests the ptc-i to impose sanctions on the otp for its repeated failure to comply with the directions of the chamber (ibid., para. 125); and finally proposes the appointment of an independent amicus prosecutor (ibid., paras. 126129) to proceed promptly with the file. the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 62 as seen, the otp’s interpretation of the sufficient gravity criterion seems insufficient to satisfy the plaintiffs, the ptc-i and the appeals chamber. therefore, the mavi marmara dossier continues to be an unresolved issue for the otp and the icc. 5.2. procedural agreement on compensation between the republic of turkey and the state of israel the “procedural agreement on compensation between the republic of turkey and the state of israel”24 (hereinafter, the procedural agreement) was signed on 28 june 2016 in ankara and jerusalem.25 the signatories, respectively on behalf of turkey and israel, were mr. feridun h. sinirlioğlu, ambassador and secretary general of ministry of foreign affairs, and mr. dore gold, ambassador and secretary general of ministry of foreign affairs. the procedural agreement, which was published in the official journal of the republic of turkey on 9 september 2016, consists of six articles in total: in the first article of the agreement, the issue has been named as “the flotilla (mavi marmara) incident”. by defining the case as an “incident”, the israeli authorities imply that this was not an “attack” and “not illegal”. again in the first article, it is stated that “…the government of israel shall make an ex gratia payment of 20 million us dollars … to compensate the bereaved families…” “ex gratia payment” is a type of payment which is not compulsory in legal terms but made on the basis of the good will of the paying party.26 thus, the israeli authorities do not accept to pay “indemnity” or “reparation” which may have legal implications or consequences; and in this way, reject any legal responsibility in the incident. in the first article, the expression of “the bereaved families” implies the payment of compensation to the families who lost their relatives in the incident and excludes the payment of compensation to the wounded persons. moreover, the issue of those who and how were responsible for the loss of lives is not mentioned in the article. thus, again the israeli authorities refuse any kind of responsibility in the loss of human lives resulting from the flotilla incident. 24 it would be more appropriate to label such a document as a “memorandum of understanding” or as a “protocol” instead of an “agreement”. it can be presumed that during the diplomatic negotiations, this issue of labeling has been discussed between the parties and the israeli side has insisted on and convinced the turkish side to sign the text as an “agreement”. furthermore, from the spirit and the letter of the said agreement -in particular from the fourth and fifth articlesit can be deduced that during the negotiation process the israeli side has paid a particular attention to the turkish internal legal requirements and made clear its expectation regarding the ratification of the said agreement by the turkish parliament to enable its flawless implementation. 25 this shows that the text is signed separately by the relevant persons in different locations and the parties did not convene to sign the text. 26 “an ex gratia payment is not necessary, especially legally, but is made to show good intentions.” see. dictionary.cambridge.org, (accessed: 7 november 2019). ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 63 in the second article, it is read that “… israel will transfer the money to this account twenty five business days following the entry into force of the agreement.” it is observed that the israeli side has acted extremely vigilant regarding the transfer of the money. the signing of the agreement and even its ratification by the turkish parliament are not considered sufficient for the transfer of money. the israeli authorities transferred the money only after the entry into force of the said agreement. in the third article, it is stipulated that “the distribution of the above amount falls within the exclusive competence of the government of turkey in accordance with such methods of distribution as it may choose to adopt, without any responsibility arising therefrom for the government of israel.” according to this article, once the total amount is transferred to the turkish government, israel cannot be held accountable, in any case, for the method, timing and amount of the compensation payment to be distributed to the victims’ relatives. in the fourth article, it is stated that “…in any event, should any claims be made, this agreement will constitute full release from any liability of israel, its agents and citizens with respect to any and all claims, civil or criminal, that have been or will be filed against them in turkey, direct or indirect, by the republic of turkey or turkish real and legal persons, in relation to the flotilla incident.” this article is so comprehensive that all israeli authorities and citizens receive full “immunity and amnesty” before the turkish courts regarding the flotilla incident. in the fifth article, it is stipulated that “should any claim of money against the government of israel or its natural and juridical persons be advanced or maintained by or on behalf of any turkish natural or juridical person, notwithstanding the aforesaid provisions, the government of israel, its agents and/or citizens, shall be indemnified by the government of turkey against all loss, costs, damages, and/or expenses.” as seen, this article is also very comprehensive and protective for the israeli authorities and citizens. israel secures that it will not pay any money except the 20 million us dollars. if the turkish real or legal persons sue the israeli authorities or its citizens before the turkish courts or even before the foreign or international courts; and if any court decides payment of indemnity to the victims or their relatives, the turkish government will assume to pay these indemnities on behalf of the israeli authorities and citizens. moreover, it is understood from the article that any attorney expenses, travel and lodging expenses and other potential expenses of the israeli authorities and citizens stemming from the cases that might be filed in the future by turkish real or legal persons regarding the flotilla incident will be claimed by israel from the turkish government. the articles of the procedural agreement treated above show that the israeli authorities and officers are cleared off all responsibilities before the turkish jurisdiction with regard to the flotilla incident. another important issue concerning the said the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 64 agreement is the difference between the terms preferred in the english and turkish texts. the procedural agreement was signed in turkish, hebrew and english. as per the agreement, “in case of divergence of interpretation the english text will prevail”. therefore, the english text is determinant to interpret the agreement. in this regard, some legal terms used in the turkish text differ significantly from the terms used in the english text and thus cause legal controversies and misunderstandings. for instance, in the english version of the agreement, the “compensation” term is preferred while in the turkish version the term of “tazminat” which means “indemnity” is used. the term “compensation” corresponds to the term “telafi” in turkish, which can be interpreted as substitution, correction due to a prejudice. however, the turkish term “tazminat” (indemnity) has extensively a legal connotation and is commonly used in legal texts and disputes. but this term is not used in the english text of the procedural agreement. in this sense, the turkish translation is misguiding. it can be supposed that the turkish authorities, to avoid internal criticism, have resorted to such a translation ruse. a similar misguiding term used in the turkish text is “ex gratia”. the turkish word which corresponds to “ex gratia” (in turkish “lütuf”) is not used and the latin expression itself is preferred in the turkish text. during the turkish parliament’s foreign affairs commission meeting, mr. ekmeleddin mehmet i̇hsanoğlu, a member of parliament, has criticized the conclusion of the said agreement and expressed his reservations regarding the terms used in the agreement: “…now, after six years of controversies, we have reached to an amount of 20 million us dollars and this is shown as an “indemnity”. i ask you. why “ex gratia” term in foreign language is used in the first article? is not there a turkish equivalent of this term? the meaning of “ex gratia” in turkish is “lütuf” (favor, good will payment). this kind of payment means that the paying party is not obliged to pay anything but in order to demonstrate his good will, he accepts to make a payment. why did not you use the turkish equivalent of this word in the agreement? this is the first issue.…secondly, mr. president, when you read article 4 and 5, it is understood that perpetrators are us, the turks and not israel…with these articles, our citizens who lost their lives are considered as assailants and their heirs are deprived from their rights to sue and claim any reparation. i really have difficulties in understanding these articles and there is not any explanation for this in the reasoned text submitted to the commission by the government.” (turkish parliament, foreign affairs commission, 17 august 2016, p. 16). the articles examined above illustrate that the agreement between turkey and israel is in fact a legal obstruction imposed intentionally to the relatives of the victims by the contracting parties. it is a legal obstruction in the sense that the family members of the victims, some of whom are economically in distress, are requested to renounce27 from all 27 those who fall within the scope of the procedural agreement concluded between turkey and israel, in order to receive a payment from the 20 million us dollars, are requested to sign a document in which they ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 65 criminal and civil referrals in return for a compensation to be paid. moreover, with regard to the persons injured in the incident, not only they are excluded from the compensation agreement, but also are deprived implicitly from their inherent right to sue the israeli authorities or citizens responsible for their sufferings. even if they file a case, the israeli authorities and citizens will not be liable for criminal claims before the turkish courts, as per the articles four and five of the said agreement, and, in case, if any court decides to the payment of indemnity to them, it is incumbent on the turkish government to pay this amount. it should also be noted that the will and opinions of the victims and their relatives were not taken into consideration during the negotiation process of the said agreement. the victims and their relatives have expressed on many occasions their objection to and dissatisfaction for the signing of the agreement (t24, 2016; karar, 2018). freedom to claim rights before courts is inherent in the turkish constitution28 but, through this agreement, the mavi marmara victims are deprived from this essential right. therefore, the relevant turkish courts can consider this agreement as “incompatible”29 with the turkish constitution and decide to proceed with the “criminal” file of the mavi marmara incident. 5.3. verdicts of the turkish court of cassation regarding the mavi marmara victims’ claims in the aftermath of the signing of the procedural agreement between turkey and israel prior to the conclusion of the procedural agreement, the lawsuits filed30 before the relevant turkish courts regarding the mavi marmara incident were rejected on the grounds that the contention was not of a private litigation between the parties and that the courts did not have jurisdictional competence on a foreign state’s actions deriving from its sovereignty.31 these decisions of the courts of first instance were also approved by the 4th civil chamber of the court of cassation (turkish court of cassation, fourth civil chamber. file no: 2018/3128, decision no and date: 2018/6193, 15.10.2018). after the signing of the said agreement, these verdicts were appealed before the turkish court of cassation. the 4th civil chamber of the court of cassation which examined these appeals has modified its previous decisions in accordance with the provisions of the procedural agreement. declare that they accept the amount proposed, that they renounce to current lawsuits and that they will not file any new cases in the future (meclishaber-turkish parliament’s news website, 2016). 28 “freedom to claim rights, article 36 (as amended on october 3, 2001; act no. 4709) everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.”, see. turkish constitution, english text available at www.tbmm.gov.tr/ docs/constitution, (accessed: 24 february 2020). 29 the aforementioned agreement cannot be declared as “unconstitutional”, due to the fact that it was concluded, ratified and has entered into force in conformity with the provisions of the turkish constitution. 30 according to the turkish press, the number of civil and criminal proceedings before the turkish courts against israel with regard to the flotilla incident is 32. see. (t24, 2016) (online turkish newspaper), available at www.t24.com.tr/haber/milli-gazete-mavi-marmara-mutabakati-anayasaya-aykiri,357522 (accessed: 26 february 2020). 31 istanbul 7th civil court, file no: 2012/661 in turkish court of cassation, 4th civil chamber, file no: 2018/5365, decision no and date: 2019/3544, 25.06.2019. the flotilla incident from the perspective of international law and the judicial rights... the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 66 the 4th civil chamber, in its recent decisions, stated that a procedural agreement on compensation between turkey and israel has been signed; that this agreement has been approved by the council of ministers on 20 august 2016 and has entered into force on 9 september 2016; that, according to the article 90 of the turkish constitution, a international agreement concluded, ratified and entered into force in conformity with the legal provisions in force, is equal to the turkish laws and that therefore the procedural agreement between turkey and israel can be applied to the cases brought before the turkish courts (turkish court of cassation, fourth civil chamber, file no: 2017/5003, decision no and date: 2019/3543, 25.06.2019; turkish court of cassation, fourth civil chamber, file no: 2018/5365, decision no and date: 2019/3544, 25.06.2019; turkish court of cassation, fourth civil chamber, file no: 2019/105, decision no and date: 2019/3545, 25.06.2019; turkish court of cassation, fourth civil chamber, file no: 2018/3474, decision no and date: 2019/3560, 25.06.2019; turkish court of cassation, fourth civil chamber, file no: 2019/2989, decision no and date: 2019/6283, 26.12.2019; turkish court of cassation, fourth civil chamber, file no: 2019/2153, decision no and date: 2019/6284, 26.12.2019; turkish court of cassation, fourth civil chamber, file no: 2019/2899, decision no and date: 2019/6285, 26.12.2019; turkish court of cassation, fourth civil chamber, file no: 2019/2815, decision no and date: 2019/6286, 26.12.2019). the 4th civil chamber stated also that the relevant turkish courts of first instance which will examine the cases against the israeli government for the flotilla incident shall include the turkish government as liable for the indemnity claims, in line with the articles four and five of the turkish-israeli agreement, and take into consideration the provisions of the procedural agreement in their verdicts (t24, 2019). as can be seen from the recent decisions of the court of cassation, the persons injured in the flotilla incident have the right to claim indemnity and these claims will be directed to the turkish government. but per the provisions of the procedural agreement, the victims cannot file a criminal case against israel and its officers before the turkish judicial system. conclusions the mavi marmara flotilla had a humanitarian mission and aimed to break the blockade imposed to gaza by israel. the military intervention of the israeli forces on high seas to the flotilla and the killing of nine unarmed civilian passengers have provoked outrage in the international fora. this act of aggression pushed the international community to question the blockade and its legality along with its legitimacy (the guardian 2010; un news, 2010). from the perspective of international law, the legality of the blockade and of the military intervention to the flotilla is highly controversial and divisive. the existence of two contradictory un reports on the same issue confirms already this observation. ömer bedi̇r the age of human rights journal, 15 (december 2020) pp. 51-72 issn: 2340-9592 doi: 10.17561/tahrj.v15.5817 67 intentional abstention from declaring a definite time limitation for the blockade contradicts not only good will and common sense but also international customary rules. on the other hand, any military intervention on high seas to unarmed civilians constitute a flagrant violation of international and humanitarian law. the israeli soldiers who took part in the flotilla incident and those who gave the orders of intervention abstained from travelling abroad due to the international arrest warrants issued for them (haaretz, 2014). the fear of a potential arrest had a psychological and dissuasive effect on the israeli soldiers and commanders who took part in the incident. however, the procedural agreement between turkey and israel has exempted the israeli authorities and officers from any civil and criminal liabilities before the turkish courts. despite the immunity granted by the turkish government, through the procedural agreement, to the israeli authorities and citizens regarding the flotilla incident, the victims and the legal heirs of the deceased persons can still claim their rights, and file criminal and civil lawsuits against the perpetrators. in this respect, three options are “theoretically” possible: firstly, the turkish courts can consider the procedural agreement “incompatible” with the turkish constitution which guarantees the right to seek justice, and proceed with a full fledge judicial examination of the flotilla incident. secondly, the turkish parliament can annul the procedural agreement at any time. such a demarche was initiated by the turkey’s main opposition party, people’s republican party, in may 2018. the latter has proposed a draft law to annul and nullify the compensation agreement between turkey and israel, but this law proposal was rejected by the governing alliance in the parliament (karar, 2018). thirdly, it is always possible for the victims and their legal representatives to seek justice before foreign and international courts on the grounds of crimes against humanity, a type of crime which is not subject to prescription (cohen and mimran, 2016). references aksar, y. 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(2010) available at https://news.un.org/en/story/2010/05/340222-secretary general-shocked-deadly-raid-gaza-aid-flotilla (accessed: 18 october 2019). un radio. (25 january 2010) ‘unrwa says israeli blockade continues to cause suffering to the palestiniansun radio feed’. available at www.un.org/unispal/document/ auto-insert-203110/ (accessed: 14 october 2019). “unsg panel of inquiry report. (july 2011) report of the secretary-general’s panel of inquiry on the 31 may 2010 flotilla incident. available at https://unispal. un.org/unispal.nsf/0/1922b40c9f4575598525790300457132 (accessed: 28 february 2020).” received: march 5th 2020 accepted: august 14th 2020 articles ömer bedir the flotilla incident from the perspective of international law and the judicial rights of the victims 1. introduction 2. israel’s blockade against gaza from the perspective of international law 3. israeli military intervention to the mavi marmara flotilla from the perspective of international law 4. international reports regarding the mavi marmara incident 4.1. un human rights council, fact finding mission’s report 4.2. report of the secretary-general’s panel of inquiry (palmer report) 5. the legal responsibility of israel and its officers in the flotilla incident and the judicial rights of the victims 5.1. decision of the office of the prosecutor (otp) of the international criminal court regarding the mavi marmara incident 5.2. procedural agreement on compensation between the republic of turkey and the state of israel 5.3. verdicts of the turkish court of cassation regarding the mavi marmara victims’ claims in the aftermath of the signing of the procedural agreement between turkey and israel conclusions references a critical legal essay to advocate iranian children's right to "proper" education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 81 a critical legal essay to advocate iranian children's right to "proper" education fateme bostani* abstract: this article aims to create a critical legal essay to answer the main question of how to help iranian governance in improving the respect of children's right to "proper education"? the concept of the "right to proper education" serves the iranian children's right to education more consistently with the very sociocultural-islamic context of this developing country rather than an allegedly occidental form of right to education. to create such an approach, we have combined a critical view to the iranian legal system, as well as a sociological view to the iranian educational system, while benefiting the philosophical results of an inquiry on virtue ethics and islamic education. finally, this critical legal essay suggests the iranian governance to be open to a shift toward a modern contractual authority in the educational system to be more compatible with the psycho-emotional needs of children and at the same time to apply the virtue ethics' political advice to move toward a liberal form of educational policies that promotes the virtues of autonomy and toleration. keywords: children’s right to education, islamic republic of iran, interdisciplinary and critical essay, iranian educational system, iranian-islamic legislative governance, social representation of children’s rights, elementary school in iran summary: 1. introduction. 2. step one: the actual condition of children’s right to “proper education” in iran. 2.1. some observed problems in iran’s politico-legal and educational system. 2.1.1. iran’s public policies deficiency regarding children’s rights. 2.1.2. a view to the iranian legal system regarding the children’s rights protection. 2.1.3. traditional mode of authority in the iranian educational system. 2.2. the iranian socio-cultural features to be considered for any potential improvement. 2.2.1. iranian pro-democratic movement. 2.2.2. islamic educational system in iran. 2.2.3. the modern and enlighted interpretations of islam in iranian intellectuals. 3. step two: social representations of children’s rights in iran through the empirical results. 3.1. overlooking children’s rights in iranian public policy. 3.2. empirical occurrences related to the traditional authority in school. 3.3. pro-democratic social representation in iranian elementary schools. 3.4. a naturally and unavoidably embeddedness of “human rights social representations” in islamic culture of iranian. 4. step three: suggestions for iranian governance to move toward a better protection of children’s right to “proper education”. 4.1. first proposal: contractual pedagogy to overcome the traditional mode of education. 4.1.1. characteristics of contractual authority in the educational system. 4.2.1. islamic education connected to virtue ethics as an aim-talk for iranian educational system. 4.2.2. the contribution of virtue ethics in educational public policies of iran to achieve the “proper education” * l.l.d, faculty of law, university of montreal, fateme.bostani@umontreal.ca ** as this article is the fruit of my phd thesis in the faculty of law, university of montreal, i would like to thank my supervisor, prof. violaine lemay, for her significant role and continuous support in developing this interdisciplinary project. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 82 1. introduction this is a critical legal essay for the benefit of the iranian legislative should desiring to better support the right to education for his children; not only the right to attend an educational program, neither just following the allegedly occidental right to an education that comes from international documents, but it is a concept of education that is consistent with its very own socio-cultural context. in this essay, we call this concept “the right to proper education” and the main question to be answered is how to help the iranian governance to offer such protection (benefiting from the proper education) for iranian children? for which we will need to observe the socio-legal deficiencies and the sociocultural features of this society that all should be considered in order to give any further suggestions. therefore, on the path of this paper, we will start, in the first step, by reviewing the literature to observe any deficiency in the actual condition of children’s rights to education in iran and also the socio-cultural features of this field that should be taken into account for any potential improvement. then, in step two, we present the results of a qualitative empirical study1 on social representations of the children’s right to education in the field of iranian elementary school that is extracted from more than eighty semi-structured interviews with iranian students, teachers, and parents following kaufmann’s method (1996). finally, in step three, we will come up with suggestions for the iranian legislative. in this regard, we are aiming not just the right to education, but the right to a "proper" education based on ethical and philosophical grounds in the sense that it would suit iranian culture and social habits better than an allegedly "universal" [occidental] classical legal conception. this interdisciplinary piece of research that is an atypical form of legal writing will use the result of a classical review study on the iranian legal system as well as an empirical study on the children's rights in the educational system of this society and finally by using a philosophical view to this issue from the virtue ethics theory, will enrich the field of public law in an innovative way suggested by jean francois gaudreault desbiens (2010) called “l’essai en droit” (“the essay in law”). a critical and creative jurist would let the doors of interpretation and interaction open to social science to achieve what jean francois calls “faire du droit” (doing or creating the law). we humbly claim to actualize the “faire du droit” as our way of doing this research by bringing sociology and philosophy to the assistance of doctrinal law and thereby realizing a new analysis of human rights. 2. step one: the actual condition of children’s right to “proper education” in iran to help the iranian governance in improving towards better protection of children’s right to proper education, we found it appropriate first to look for the problems hidden in 1 fateme bostani, children’s right to “proper education” in contemporary iran: a critical legal essay with an ethical and empirical approach towards improving iranian governance (phd thesis, université de montréal, 2019) [unpublished] at 116–308.. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 83 the socio-legal system of this society and also some socio-cultural notions that affect any further move in the development path. in this part, we concentrate on the review of literature and theories that could describe the actual condition of children's rights in the iranian society while the result of our empirical study comes in the next part -step two-. 2.1. some observed problems in iran’s politico-legal and educational system: 2.1.1. iran’s public policies deficiency regarding children’s rights in iran —probably like many other countries in the world – the children were not recognized as the right holders until at least 100 years ago. for the first time, in 1923 in one of iran’s provinces, children’s labor was banned for girls under 10 and boys under 8 years old. this kind of protecting basic rights of children continued to exist to some extents but the researchers usually recall the law of protecting children and adolescents (2002) as the turning point where the expression of “child abuse” has been used for the first time in the legal literature of iran (ghaffari & hosseini 2015). therefore, it is not a surprise that the general policies of iran, either social or legal policies, are still suffering from deficiencies in the field of children's rights, as it is a new concept entering the iranian socio-legal literature. the traditional point of view about children has existed in this system for a long time and it will take considerable time and effort to change the traditional image of children to the modern one. let’s remember that, for a very long time, hundreds or even millions of years, the children have been usually considered the private properties of their fathers, whose lives have been on some occasions in their hands. to understand the magnitude of the challenge of the child subject of rights, in terms of social change, violaine lemay refers to “socio-cultural inertia”. she affirms that, according to the sociology of law temporality, social habits do not change immediately despite passing modern legislation to protect the rights of children. it would generally take as long as the age of a social habit to change a social habit even after adopting modern legislations (lemay 2009). when one keeps in mind that these parts of the world are rather heirs of old civilization and not necessarily inclined to be open to western modernity, one can better understand why the iranian legal system still suffers from traditional social habits regarding children. nazerzade kermani (2009, pp.39-40), in her article “children’s rights: a need for recreation”, also emphasizes the fact that iran’s legal regulations about children have been usually based on a traditional look about the children. she says: “[we] believe that many of the laws regarding the children, including civil or criminal, are not efficient, and in some cases, they are lacking the concept of justice and are harmful to the society. the “traditional view” to the child and childhood, in these laws, could not respond to the needs of “today’s iranian child”. the achievements of civil and rural sociology reveal obvious differences between civil and rural families… it seems that the family law and specifically the regulations about the children are affected by rural/traditional society.” a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 84 so she calls for a reconceptualization of "children's rights" in iran's legal system. this has also been mentioned by another famous children's rights activist and scholar in iran, mehrangiz kar (2005, pp.97-98), who believes that a basic change must take place in the legal system of iran to fulfill the rights of children and women. she believes that “if we seek the protection of children’s rights, it must be declared explicitly in the constitutional law of the country” and continues: “… but unfortunately, we do not see in any articles of our constitution such an explicit point about the rights of children. the legislations have to be based on islamic rules… and islamic rules have never been defined explicitly, so it is open for everybody to interpret islam regarding his interest… i mean, the need for modifying the laws is vital for the iranian people like the need for air and water, but the windows of the legal structure are still closed to this change… the authority also does not seem to be intended to finish this condition.” another research has been done on the issue of children’s prostitution and iran’s criminal policy in this regard. the iranian criminalization of this issue has been criticized in this article while mentioning the need for a more precise legal protection for the vulnerable children. the writer also confirms our critical view in this section by saying that: “in our country, there is no legal authority, nor any information center, neither a secure place for children to recourse in emergency cases… despite the prepared legal context, iran is still too far from the complete implementation of the convention on the rights of children… and the most reasons for this condition go back to the government.1) iran has accepted the crc conditionally. 2) in iran’s civil law some articles easily neglect the rights of children. 3) the government does not even fulfill its duty of protecting children’s rights to some extent that have been accepted by its internal laws; such as educating kids and families, recognizing the child as a dependent person, [and] paying enough attention to the state of the family.” (mirfardi 2017, pp.125-128) the political executors of this sphere also mention such a problem when they face children’s affairs dilemmas. for example, sajjadi, the vice president of iran in the women and family’s affairs, in an interview (irib news agency, 2018), emphasizes that the current laws are not child-oriented and this is the most important deficiency in protecting children’s rights. she also stresses the recent character of women’s and children’s rights in the country: “although improving the health and stability of families are the policies of the government, unfortunately, paying attention to children’s rights is less visible in our country. we could see this defect all over the legal system since there was not the same concept of childhood in the past periods. the children’s rights are very young in our country as well as women’s rights. since two decades ago, by increasing the number of child abuses in society, fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 85 the sensibilities for the children’s rights protection have been turned into a common demand.” sajjadi then mentions some children’s rights-violating laws in the iranian legal system, such as the right of a father to corporal punishment of the child, excluding father from common punishment (ghisas2) in case of murder of his child, the age of criminal liability which is assumed the same as the age of physical puberty (9 for the girls and 15 for the boys), etc. she hopes that all these problems get resolved by approving the new bill of protecting the children and adolescents by the parliament. there has not been any authority in the field of children’s rights in iran until a few years ago but now there is an institution called the “national reference of children’s rights convention”. however, this authority does not have any executive responsibilities and has only some tasks of arrangements and reporting. according to the claims of professional activists in the field of children’s rights, this only reference also does not seem to be very efficient.3 2.1.2. a view to the iranian legal system regarding the children’s rights protection the iranian legal system in many aspects, is respective of fulfilling its duty to protect children’s rights: in families, by considering the best interest of the child (parsapour & nourbakhsh 2015); in the educational system, by stating the compulsory education for every child (the law of providing facilities for the education of iranian children and youth 1974, article 2) and aiming to provide a happy environment for the students (executive regulations of schools 2000, article 98); and facing the criminal cases, by adopting the “law of protecting children and adolescents 2002”; although this is a good start, there are criticism waves regarding the situation of children in this legal system. iran has been one of the first states that ratified the international convention on the rights of child. however, this acceptance was conditional; so the priority of islamic regulations has been reserved in case of any contradiction. this seems to be a challenging point because in most criticized cases where the iranian legal regulations fail to fulfill the international duty of children’s rights protection, there is an islamic matter of concern. the age of childhood is, for example, the most challenging criterion that ends up dismissing some internationally accepted rights of children such as criminal liability of kids under 18 and child marriage. the age of childhood has not been determined clearly in islamic teachings (only the physical puberty has been mentioned as the criterion for considering the person as an adult, and this age is traditionally considered 9 years old for 2 for a more detailed discussion of his look at: abdullahi ahmed an-na’im, “human rights in the muslim world: socio-political conditions and scriptural imperatives a preliminary inquiry” (1990) 3 harv hum rights j 13–52. 3 this is the idea of professor mohammad mojtahed shabestari, an iranian specialist in islamic hermeneutics and islamic enlightenment. mohammad mojtahed shabestari, human rights will not become islamic but muslims should accept it (2017). a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 86 girls and 15 years old for boy)( haidari & ghiasi 2013). so, there is always a chance for a misjudgment and also discriminative convictions for persons under 18 (modavvar 2017). this is while these islamic regulations are contradictive even among the islamic thinkers and specialists. there have been numerous debates on the relationship of islam with human rights which usually go under the philosophy of religion and also the science of interpretation (hermeneutics). “these problems do not derive from islam per se but have to do with the islamic shariah, or more precisely, with traditional or fundamentalist interpretations of the shariah…given the fact that the basic features of the shariah developed in the first centuries of islamic history, whereas the historical breakthrough of human rights was roughly a millennium later, differences and conflicts between these two normative systems can be no surprise.” (bielefeldt 2000, pp.102-103) therefore, there have been different approaches to integrate the occidental concept of human rights into the fourteen centuries-old islamic culture either by being essentialist (fundamentalist) approaches or enlightened and more modern interpretations of islam. the essentialist point of view takes islam as the source of an ideal life for human beings and tries to adopt human rights norms only when they are compatible with islamic regulations. the cairo declaration of human rights in islam (1990) could be an example of such an approach because muslim states found the universal human rights declaration incompatible with islamic rules in some points and tried to give an islamic version of human rights. although this declaration uses a universal language of rights, it still mentions islamic shari’a as the only source of given rights in the declaration. like when the introduction of “the universal islam declaration of human rights (1981) states "fourteen hundred years ago, islam gave to humanity an ideal code of human rights", so they never leave any opening for a contemporary interpretation adapted to modern life of muslim people. this is while the enlightened approach tries to present an interpretation of islam that is compatible with the universal human rights regulations. abdulahi ahmed anna’im is an example of the islamic thinkers who believe that despite the real inconsistency between shari’a and human rights, there could be an interpretation from the quran to be compatible with these universal regulations because the core of islam is also based on equality and human dignity.4 some points of view make a distinction between these two phenomena (islam and human rights) and believe that, even though human rights cannot be islamic by definition, muslim societies have to accept human rights rules as the essence of modern social life.5 4 the basic punishment of slaughter in iran’s legal system is ghisas which means that the same thing should happen for the crime committer i.e. death penalty in case of killing someone. 5 referring to the experimental results on “children’s rights social representation in iranian elementary schools” which are used in this article. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 87 despite these contradictive ideas about the relationship between islam and human rights, it seems that the iranian legislator has taken a traditional interpretation of islam into account at least where it comes in contradiction to the international human rights regulation such as what we mentioned earlier about the age of childhood. 2.1.3. traditional mode of authority in the iranian educational system one considerable conclusion that could be extracted from the observed field (iranian elementary schools) is the fact that what we call here a phenomenon of social pregnancy of a “traditional model of authority” (according to gérard mendel theories applied to the general educational field by violaine lemay 2005) which seems to be existing in the educational system of iran. in other words, the relationship between teacher-student or parents-students still follows a rather traditional order of power (authority) where the superordinate party (the adult) does not share any bit of autonomy, responsibility, or useful knowledge with the vulnerable (the child). according to violaine lemay (2005, pp.151-152), what would be called "psychological modernity" seems to be an inescapable event of the occidental world. it has been discussed extensively in her ph.d. thesis on "pedagogical contract" in which she explains how the form of authority over the child changes in this shift: “the advent of psychological modernity, the germ of which can be traced back very far, but whose theorization could only emerge with the genesis of the whole new consciousness of the self (ego) and its science (psychology), thus appears. as a change in the way of dealing with the ancient intergenerational subordination and, by extension, the asymmetry incompetence between people. in traditional society, the elders found themselves in a position of strength since, through experience, they had acquired the knowledge necessary for survival. the youngest children, deprived of this knowledge, needed the protection of the group to survive. the ancient and crude balance of power imposed the subordination of people in a position of socio-cognitive weakness.» lemay focuses on the analysis of educational authority. a fact catches her attention. in the twentieth century, social work, psychology, and, more recently, pedagogy appear to be the three similar theories of intervention: these three theories that call themselves "contractual" (some without the knowledge of others) because they prescribe to the holder of power the same rules of relational sharing: 1-do not decide only based on your own idea (share ideas) 2-do not decide everything alone (share autonomy); 3do not look at each other as unworthy to explanation (share information); 4-do not look at yourself as the sole responsible (share obligations). these four are praised in their respective disciplines because of their spontaneous "clinical adherence": in other words, when the authority holder exercises power according to this model, his subordinates not only adhere to his orders but seek his command. that is the reason this movement is now strong in the health systems, at the root of the “patient expertise” growing around the world (for example lemay et al. 2017). a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 88 let us note that this concept—contractual authority—is in many ways similar to that of assabyyia as the concept which is used by the great muslim author, ibn khaldun (1332-1406). « assabiya is translated as clan spirit, public spirit, and even social capital. it refers to a psychological force that unites the members of several clans and gives them the possibility of accessing power. »(nablia 2011, p.114) […] « i say there is no power without "assabiyya". […] it is the crux of my whole social and political theory, even my whole view of civilization and history. "assabiyya" is at the heart of power, and power is at the heart of the functioning of society and the development of civilization... » (cheddadi 2016, p.145) this notion once again reveals the prognostic character of this great muslim author, who is still and sadly not yet widely known in the west. a bit like mendel and cyrulnik at lemay, who wrote in the twentieth century, he had the intuition of common anthropological traits explaining peoples' adherence to certain powers and the impact of this adherence on the destiny of collective relations. observing the elementary schools of islamic-iranian society reveals a very close connection with the psychoanalytic theory of mendel and also those of ibn khaldun. this notion will be more presented in the empirical study of this research (step two). while an existing “archaic” model of power fails to fully respect the rights of children in the educational system of iran, a socio-political change towards the “contractual authority” would be a survival path for the future generation of this society by paying more attention to the development of psychology and the psycho-emotional needs of children. 2.2. the iranian socio-cultural features to be considered for any potential improvement in this section, it is now time to look for the actual potentials of the field research that could help us achieve our goal. here, we ask ourselves whether any potentials have been observed in iranian society to be considered as the opening point toward a change. while the goal is to find an adaptable version of children’s right to education to the sociocultural context of iranian society and to approach the respect of kids’ “right to proper education”, considering the socially embedded elements would be undeniable. we will present three significant notions in this regard: first is the pro-democratic movement and social representation of high demand for human rights implementation and secondly the fact that this high desire for human rights protection is naturally and unavoidably attached to the islamic concept of the good life because of the islamic educational system that has a long history in this society. however, a modern and enlightened interpretation of islam exists in the islamic iranian literature which could be a matter of emphasis for further improvements. 2.2.1. iranian pro-democratic movement iran’s history through the last century has been full of attempts toward establishing social and political modern elements, especially democracy. as a country fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 89 with a long historical experience of over 2000 years of dictatorship, adopting the new concept of the state, that supposedly would present the power to the people rather than the unquestionable authority of the kingdom, was not an easy step, considering the significant role of islam and clergy in the socio-cultural context of iran during the times. therefore, several attempts have been made to theorize such a reform that could be categorized under: a very minimalistic democracy, a secular democracy, or a religious democracy (akbari 2003, p.70). jalaiipour (2004, p.192) mentions, there have been four significant waves of demand for democracy in iranian contemporary history. while for the first time people tried to limit the authority of the kingdom by the rule of law (the constitutional revolution, 1906), the second time was during the prime minister mosaddegh by nationalisation of iranian oil industry and then by the islamic revolution(1978) that ended finally the thousands years old monarchy. however, the presidential election of khatami in 1997 was the most important recent movement toward the democracy demands of iranians, which is called the reform movement (ravanestan 2017). after the reform movement, the socio-political groups in iran started to develop democratic and civil norms in which the concepts of civil society, pluralism, democracy, dialogue, tolerance, competition, participation, etc. were the main principles. despite all these political efforts to open the society to democratic views and the emergence of civil society, the process of passing towards democracy in iran has always been faced with ideological obstacles that ended up in some failures in this path (bashiriyeh 2008, p.99). however, the current desire of the iranian people to democracy which is the result of many socio-political expenses paid by this nation is promising by itself (homayoun katouzian 1993, p.20). after all, even though the iranian people’s desire for democracy has still difficulties getting actualization, what remains to be found by them is their proper pattern of democracy consistent with their national-islamic identity and their geopolitical condition. “after passing through the fruitful historical experiences that happened to iranians, this nation has come to this conclusion that to sustain its existence among the changing 21st-century geopolitics of the world, it has no other way other than high steps towards a domestic democracy… it is now clear for all the nations that democracy[…] is not a luxury gift cloth for which the body of nations must be carved. it is rather a not-sewed cloth which will be sewed only by the hands of those nations and for their very own cultural body.” (mojtahedzadeh 2007 p.104) let us here focus on the latter words of this quotation… “domestic democracy […] is rather a not-sewed cloth which will be sewed only by the hands of those nations and for their very own cultural body”. one could not better express the critical global approach of this legal essay. however, social demand for democracy and human rights in this society seems not to be detachable from the islamic concept of the good life that they have been taught a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 90 through the ages of being under the effect of islamic culture. this is what we will see in the next section. 2.2.2. islamic educational system in iran a factor that plays a significant role, in forming an islamic social representation of human rights in the elementary schools of iran, is the fact of an islamic educational system, for which the roots could also be found in the religious-based education in this country through the times. the studies on the history of education in iran have found religious-based education for the kids even in the pre-islamic period. iranian were zoroastrian6 in that time and were educating their children at home or in the fire temples principally regarding morality and religion (sohbatloo 2008). the children’s education method continued to be almost the same after islam came to the scene of history. the kids used to be gathered in some individual’s houses and after a while in the mosques7 to learn reading, writing, and moral/religious lessons all according to islamic teachings and using islamic sources especially quran (takmil homayoun 2002). this traditional form of education continued to exist for centuries so that education became kind of restricted to religious education and in the hands of the clergy. this was the case until the age of the qajar dynasty that started the project of modernization in iran. their attempt to initiate modern schooling was opposed by clergy as they believed that it will be an anti-islamic or de-islamization project. however, in 1851 finally, a modern high school called daar o l fonoun (polytechnic high school) was founded in tehran which was designed with the western methods of training. daar o l fonoun became an inspiring institution for the pahlavi8 dynasty to continue the educational reform attempts that included a kind of de-islamization of schools and curriculums (tamer 2010). iran has experienced two contracting policies before and after the islamic revolution in 1978 which were mainly de-islamization before the revolution and islamization afterward. this change unavoidably affected the elementary education system and curriculum in which the policy-makers had the plan to build up the future society. zarean (1998, pp.273-274) states that, after the revolution, the concepts of nationalism, westernization, pre-islam values, and secularism were totally refused: 6 “the interviewer, in this research project, has been succeeded to make as many as 87 interviews in the field of elementary schools of iran. the interviewees consisted of 61 students (32 boys and 29 girls), 2 parents (2 mothers), 23 teachers (6 oral interviews and 17 questioners), and one children’s rights activist.” authors’ name, supra note 1 at 267. 7 “right to play and run: a crucial right coming from a natural need”: ibid at 198-202. 8 “under the security cameras: imposing the sense of being controlled all the time”, supra note i at 205-207. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 91 “from the very beginning of the first year of the elementary cycle, the students in the islamic republic begin to learn about islam from different directions. while they learn spiritual and moral aspects in an individual domain, they learn how to apply these values in their social and even political life. at the same time, they are trained to oppose those pre-revolutionary values that were magnified by the pahlavis and still, to some extent, are evident in society.” the religious, ideological, and political tendencies in elementary education are obvious in the document of “aims of elementary education”, approved on may eighteen 2005, according to which the student at the end of elementary school (11 years old) should believe in the principles of islam, should have to respect the islamic rules regarding the relationship with counter sex, should be interested in religious governing and be aware of islam’s contemporary enemies and also be familiar with the concept of “national security”! (mansoori boroojeni 2011) no wonder when we ask very young children what they think of respecting people’s rights, their reaction comes up with a divine normative structure that will punish them if they become cruel to others so they try to make friends with the classmates to achieve the satisfaction of god. all historical culture in which those children live is embedded in a normative approach to islam. we tried to clarify to some extent the social and historical context of religious education in iran in which the religious common sense of “rights” is not detachable from the iranian islamic concept of “being a good human being” or the essence of the “good life” as one of the most important results extracted from the field. let us now observe a modern approach to islamic views which is more compatible with human rights regulations. 2.2.3. the modern and enlighted interpretations of islam in iranian intellectuals one could observe the specific approach of iranian intellectuals to the islamic culture which is far from the conservative interpretation of islam and seems to be compatible with human rights recognition. it is a matter of consideration how iranian, with a long and rich persian cultural history, faced islam at one point and accepted it whether under the force of sword or because of their social contextual need. it is also interesting how islam little by little became part of iranian culture and created an islamic-iranian identity. and suddenly in the age of modernity, they faced the occidental concept of human rights and tried to adapt it into their culture along with the project of modernity. well, it is certainly a complex social process and shows what the children and teachers are talking about seems to us not detachable from what the iranian society has experienced. however, it could be said that iran’s islamic revolution in 1978 was a reaction to the de-islamization policies of the ruling power in iran during the two last dynasties a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 92 (qajar and pahlavi9) which were trying to bring modernity to iran's society and used to see islam as a barrier to this process. zarean believes that although the tendency of iranian society to oppose this de-islamization combined with the socio-economic challenges of the time, turned finally to the islamic revolution, the political efforts in eliminating islam from the society and emphasizing the persian nationality had its effects (zarean 1998). therefore, in contemporary iran, neither the nationalist nor the islamic aspects of iranian identity cannot be neglected. the other significant period in iran’s process of modernization especially in socio-political enlightenment was after the presidential election of mohammad khatami in 1997, who was representing the reformist approach in politics. he claimed freedom in the society and came up with the suggestion of dialogue amongst civilizations in the un.10 the religious enlightenment, then, spread up in the islamic academic sphere of iran and the intellectuals tried to theorize the adoption of concepts of secularism, democracy, and human rights in the islamic culture of iran. among them, abdolkarim soroush is one of the most well-known enlightened thinkers and writers. his specific contribution to new interpretations of islam was “theoretical contraction and expansion of the shari’a” (2009) according to which islamic jurisprudence must follow rational theology, involving the constant reinterpretation of islam following the growth of knowledge outside of religion, particularly in science and philosophy. soroush’s ideas on democracy, secularism, and human rights have been criticized by islamic fundamentalists in iran, especially the political power, but his tremendous effect on the modern understanding of the iranian society of islam is unquestionable. however, he believes that in the challenge of religion, tradition, modernity, and political secularism, the crisis of iranian culture must be acknowledged and remedied through harmonizing and rational efforts (matin-asgari 1997). in sum, one could follow the process of the bilateral identity of iranian society with all its ups and downs through time but still, the islamic and nationalist aspects have not been separable. having reviewed the two significant features of iranian society — the prodemocratic social representations and islamic embeddedness in the concept of human rights—and because an enlightening stream in the interpretation of islam is growing in this country, we should now look for the specific suggestions for the iranian governance to approach a concept of children’s right to “proper education” which is consistent to its very own islamic-iranian identity. the next step will discuss this question. 9 “’i [should] have the right not to go to school!’: the children’s expression of disgust and the extent of the right to do wrong”, supra note i at 236-237. 10 “’kids’ rights are not respected at home, how do you expect it to be respected at school?!’: the problem of violence against children”, supra note i at 224-227. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 93 3. step two: social representations of children’s rights in iran through the empirical results the empirical material (the content of the interviews coming from qualitative sociological research in iranian elementary schools11) is another source to be observed and analyzed in this critical interdisciplinary essay. in this part we turn now to our empirical results to see what weaknesses and deficiencies this field can reveal regarding the children’s right to “proper education”? and what are socio-cultural features should be considered for further suggestions and potential improvements? the observed social representations give us a good idea of what difficulties this society can face according to the social representations of children’s rights in the elementary schools, such as what we call a “traditional form of authority” in the educational system of iran and also an overlooking approach to the rights of children in the public policies. moreover, the observed pro-democratic social representation in iranian elementary schools and also the natural embeddedness of human rights social representations in the islamic culture of this society should be taken into account in responding to the question of this research. 3.1. overlooking children’s rights in iranian public policy one of the extracted ideas of our empirical field is the observed social representation of the public policy of iran regarding children’s rights which indicates the interviewees’ unhappiness about the general social policies of the society about children’s rights. occurrence #1: we observed a very general disappointment of people regarding the respect of children’s rights in society; a negative reaction from the interviewees when they have been asked about children’s rights conditions in iranian schools.12 they presented either an unawareness of the rights of kids or complaining about not being respected. “i have no idea about children’s rights and it is not only me. i would say the society is not aware of that.” (mehrnaz, teacher of 2nd grade) “there are many types of discriminations in our educational system: religious, linguistic, and gender discrimination. we receive many reports on the sexual abuse of children.” (mastaneh, children’s rights activist) the observations in our field show common sense among the people of negligence about children's rights, or even more generally, human rights in iran's society. people who are directly in contact with children —being either the parents, teachers, or children's rights activists—do not believe that the public policy of the country is working in favor of protecting children s rights. 11 ’the society is not aware of children’s rights’: the common belief of people about lack of respect for children’s rights”, supra note i at 243-244. 12 “early sexual abuse experience at school: an obvious need for security and education”, supra note i at 233-235. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 94 one could say that a common dissatisfaction about the condition of human rights in this society is not a matter of surprise because the lack of free expression and free media in iran does not let the people be in the real stream of news and facts which are happening around them. they cannot trust the official statistics as they have a feeling that the truth is being hidden from them. so each time they hear disastrous news about the children, they conclude that there must be even something worse. they extend their unhappiness about their own condition to everything related to governmental policies. the general distrust amongst people and political power causes a generally negative view about the exercise of human rights in society. occurrence #2: the sexual security of children is a very important subject of social policies which has been discussed in our empirical analysis.13 how could a mother, whose son has experienced sexual abuse in the very first grade of public elementary school, trust the social and political efforts of the public power anymore? the problem gets worse when we observe the fact that people usually keep silent when they face such abuses, so the statistic around this issue is never an accurate one. this is another problem identified by v.lemay (2009) as an indicator of social inertia in favor of habits of no limited power of the adult on the child. for example, when the common sense still approves the jurisdiction of the father on the child, and the idea of the child only as of the object of law still exists, the public denunciation of the pedophile father is highly unlikely: isn’t his family jurisdiction sacred and legitimate? isn’t the child his property? then it stays untouched immemorial law of silence. in contemporary iran, there seems to be no education toward protecting children from sexual abuse because the public policy of the educational system still believes that these are the red lines for the kids and might mislead them to sexual deviation rather than protecting them. occurrence #3: another example of dissatisfaction about public efforts to execute children’s rights in society has been presented in the issue of children with handicaps in the educational system.14 the children with minor and major problems have the right to receive “proper education” but it seems that the social constructions in iran do not allow them to fully benefit their rights despite the legal protection of handicapped persons’ rights. shirin, the mother of a 10 years old boy, extends her son’s experience to the whole society because she does not feel that any solution exists for such a problem in her society. “we don’t have such a thing [education separation for children with special needs]! my son had a classmate who used to take lots of pills and used to hit the other students!”(shirin, 32 years old mother) occurrence #4: the big difference between the quality of education in public and private schools could also be a symbolic sign of deficiency of educational policies in iran.15 private schools offer a higher quality of education and treatment for students, while 13 “need for separation and support of handicapped children: an obvious part of the right to proper education”, supra note i, at 241-242. 14 “public schools vs private schools in iran: a matter of concern for educational justice”, supra note i at 221-223. 15 “the public policy’s deficiency regarding children’s rights protection”, supra note i at 231-232. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 95 it is still very difficult for most people to afford the expenses of private schooling for their children. this has also been approved by some quantitative and qualitative researches such as an article that indicates a considerable difference in structural learning between public and private schools. regarding this empirical research, private schools have a higher quality in all aspects of structural learning compared to public schools (zarei matin, jandaghi & moeeni 2003). it seems that the basic rights of children—sexual security, proper education, and right to their physical integrity (not to get corporal punishment) —are a lot more easily disrespected in public schools rather than in private ones. why should be such a gap between private and public education that makes the majority of parents and teachers concerned about it? is this not clear discrimination that seems to be neglected by the policymakers of the educational system? this is even though education in iran is a centralized matter and all the schools’ main structures and curriculum should follow the same system indicated by the central policy of the government. but what happens in the case of quality of education and the resulted discrimination through the high paid/private schools vs. public schools, seems to be abandoned. however on that matter, one could mention that iran’s context of seizure between private and public schools may probably be compared the same to the situation of dozens of other countries. occurrence #5: finally, another element of the field leads us to the same conclusion of public deficiency.16 it comes from the complaining of a children's rights activist about the lack of public efforts in the actual protection of children's rights. "you have an organization for 'promoting the consumption of egg'; what organization do you have for the 'children's rights’?!” she addresses the policymakers and high executors of the country. (mastaneh, children’s rights activist) this is how the problems of the children’s rights in iranian society could be observed among the social representations of deficiency in the general policies of children’s rights in the educational system. as a jurist who is preparing a critical legal essay to help the iranian governance in this case, these empirical findings would be precious data for implementing a suitable cure. one must be aware of the social problems of an issue to become able to look for the appropriate resolutions. knowing the most important deficiencies of the iranian educational system regarding the right to proper education – i.e. traditional form of authority and public policy issues – we could now continue the rational path of suggesting remedies. 3.2. empirical occurrences related to the traditional authority in school having reviewed the theory of gérard mendel in the previous part (1-1-3) let us now review some of the empirical occurrences that explain why we relate them to the theoretical authority model presented above. 16 “’children’s rights are for the poor kids, not for me!’: paradoxical well understanding of children’s rights”, supra note i at 191-194. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 96 occurrence #1: we observed confusion in understanding children's rights among some teachers. they had a fear of ending up in the "kingdom of children" by recognizing and teaching the children's rights. this fear is the result of a wrong association of the "fundamental rights" for the kids (to be protected against any inhuman violence) and the childish desire not to obey their legitimate parental order. the adults then think that putting a limit to parental authority means necessarily falling into an “all or nothing” process. when one reflects on this point, it can be linked to the social pregnancy of an archaic understanding of educational authority which cannot imagine any concession to the subordinate (in the sense that no reference would be at all to the “contractual” form of relationship between adults and children.) the teachers and parents seem to believe in a legitimate authority for the adults over the kids that child subject of law would dissolve in a non-sense “kingdom of the child” and then the poles of the vertical relationship between adult and child would be reversed. occurrence #2: in the discourse of the children we met, we observed a very high tendency of children to be free to run and play.17 the kids usually complain that they are not allowed to play and have physical activities as they wish. we considered the right to play and run as a crucial right for the children according to their basic need to move and play. although the children’s desire to play and run has been a repeating fact for us to be noticed as their right, a more fundamental reflection leads us to ask why there is so much complaint about that. it reveals, in our idea, the traditional form of psychology which seems to be ruling in the educational system of this society: stronger parties (adults) have power and decide what they prefer without accepting any compromise in satisfying the weaker (children). just as the time when kids complain about being controlled everywhere in the school by the cameras and feel insecure under this unwanted and sometimes unnoticed control.18 it seems the decrease of traditional reign power on children, characterized by a total absence of limit, never even began. occurrence #3: we have mentioned the student’s desire to break the rules of school whenever they catch an opportunity and they feel proud because they find the school’s rule unjust, not only according to their need but also because they see themselves as subordinates in this authority structure. it goes up to the point when they ask for the right to “not to go to school”19, which is not a logical demand in the adult's point of view as they consider education as the means of kid's well-being and flourishing but for a child who is not convinced about what he/she has to do in his/her life, there is always a right to be wrong. the children want to be heard and get involved in everything related to their very own life -childhood-. this type of child resistance to school norms and authority reveals a 17 “disputes around the students’ association: a precocity of the desire for democracy”, supra note i at 208-210. 18 “gender disparities in dispute resolution: thinking of gender dimension of the proper education”, supra note i at 216-218. 19 “the desire to improve human rights awareness: teachers and parents agree to teach human rights to children”, supra note i at 245-246. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 97 phenomenon linked to the weak type of educational power or authority, the “archaïc one in mendel’s terms”, because of its lack of the effect of clinical adherence that produces a more “modern” one. occurrence #4: according to mendel, the typical vertical form of the relationship of adults-children starts from the families. that is the fact being observed in our empirical study where the teachers emphasize the role of families in respecting children's rights.20 “if the kid’s rights are not respected in the families, how do the parents expect them to be respected in the school?” (atoosa, teacher of 3rd grad) this teacher – by saying this sentence – does not want to ignore the schools’ responsibility regarding the children’s rights rather tends to show the significance of the family’s role in changing the traditional form of authority relationship settled in the society. the modern psychological reform should happen in the society starting from the families, then we could expect the modernity reform in school’s authority relationships actualized from theory to the action. these observed occurrences in the empirical field that states the existence of a traditional form of authority in the iranian educational system, should be recognized as a significant deficiency in the iranian condition of children’s right to “proper education” to find the appropriate resolution for this issue. below, comes the second empirical conclusion illustrating another difficulty in this field. 3.3. pro-democratic social representation in iranian elementary schools having observed the field of elementary schools by talking to the children and teachers, we have come to the conclusion which is, despite all the actual difficulties and complaints that exist against respecting children's right to "proper education", a very high tendency and desire to build up a democratic sphere can be seen amongst the students, teachers, and parents. occurrence #1: among our empirical data we faced a very mature understanding of children’s rights concept in some young students21. they were aware of the difficult situation of many children in the society who deserve to benefit the children’s rights as they do already, like the right to education and not to work in the streets. “[children’s rights] are more for the poor children; the kids who are in the street. they must be helped by the municipality and other [organizations].” by saying this, ahmad showed his adherence to the idea of the responsibility of state organizations in taking care of children’s rights in society. (ahmad, 13 year-old-boy) while it is more common for children to care only about their own interests and desires, it seems very impressive to find out that, in this society, the children’s understanding and caring about children’s rights go beyond their immediate desires. in canada, maybe 20 “children’s expression of human rights linked to islamic concepts”, supra note i at 195-197. 21 “an islamic approach in recognizing the age of childhood: gender differentiation”, supra note i at 228-230. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 98 because of the large middle class and reduced gaps between the wealthy and the poor child, children usually do not think about such things as “children left on the street”, aspiring to “rights” to protect them. but children in iranian society can see vulnerable children very closely. it probably explains why they can become concerned about their fundamental rights to live, to educate, to receive food, etc. the ones whom we met, talked about it in a way that presents a certain comprehension that these rights of the children come with the duty of the government to act toward respecting them. quite interesting when one keeps in mind that we are talking here of mainly prepubescent kids. so we can probably say here that we have a positive human potential here to use in some way if one legislator wants to enforce children’s rights. occurrence #2: another interesting phenomenon showed up in our field of inquiry: the children’s desire to political acting toward democracy in the school’s area.22 it is true that the students complained about the students’ association for not being very effective, but is this also not a developed sign of their understanding of what should be expected from a democratic structure? every year in almost every elementary school in iran, an election takes place with all its appliances. the students become candidates and present their plans. they compete in different ways (which may seem very basic and even funny sometimes for the adults though) to attract the other students’ vote. they vote and select their representatives, then they expect the association to work for their interests. yes, they complain sometimes that the association is not beneficial enough... “we had an election day and voting program for the student association for which the students were very active and excited. it was just like a real election and the students voted regarding the candidates' plan and i think they had proper choices. this is the result of trusting the children and letting them perform their capacity of understanding.” (masoud, social raining teacher) regardless of how effective is the association at the end, is this not a democratic practice at the very young ages of childhood? is this not a call for having democracy in the wider spheres? is this not a presentation of a social desire for democracy that takes place among the very young generations? comparing again to the situation of other countries, one can surely ask for the hypothesis of a big difference. in a country where parents and society, in general, do not feel the lack of democratic processes, kids are less likely to inherit from their elders the want of voting and the increasing power of peoples’ representatives. in sum and again, we can probably say here that we have a positive human potential here to use in some way if one legislator wants to enforce children’s rights. 22 zoroastrianism was the ancient religion in iran where the prophet, zoroaster, emerged and taught people the three main principles of his religion: good thinking, good talking, and good treating. (pendar ‘e nik, goftar ‘e nik, raftar ‘e nik) fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 99 occurrence #3: we presented a considerable skill amongst the young girls in dispute resolution.23 having observed the girls who were trying to prevent any struggles with their classmates or to resolve peacefully the issues that happen between them, we came to wonder if the concept of peace and friendship was more understood among the society of girls. could this behavior be an indicator of the women's desire to participate in developing a democratic society respecting peace and human rights? is the women's general will preparing through their young daughters’ acting? we must be vigilant here, being high the risk to take one’s desire for reality. but the hypothesis worth being said, as long as it is not purely impossible and then can be, among others, a reason for hope and a potential way to borrow. putting aside a women-oriented analysis of a democratic desire in the studied field of iran, the understanding of some concepts like peace and dispute resolution in the very young children of this society could be a matter of sociopolitical analysis by itself. the kids talk about the concept of peace as a means of "the good life". even though they refer so often to their religious background on this subject, however, they represent a social desire for peace and human rights in their level of performance. occurrence #4: we asked teachers and parents if they agree to teach human rights to the kids and they mostly answered positively.24 the majority of the interviewees seemed to find the idea of teaching such modern concepts to the children not only helpful in their training for the future of the society but also, in some cases, as an essential need for them to be able to be protected from the children’s rights violence. “i am a hundred percent agree to the idea of teaching human rights to children. everybody should know about his/her rights from childhood through adulthood. many social issues are the consequence of unawareness.” (farideh, teacher of 3rd grade) the social representation of the demand for human rights training in the observed fields leads us again to the conclusion that there is a desire in this society to start the reform toward a human rights-respecting sphere where the democratic structure is probably the base. however, what we have seen in our field as a high tendency of children, teachers, and parents to promote a democratic environment to the extent of their capabilities, must have a root in the bigger society of iran either as a social or political desire to develop their quality of life to a higher level of democracy and human rights engagement. here, we try to show that such a pro-democratic movement has been floated in the iranian society for a while (by indicating some of its historical, social, and political 23 later on, the places where the kids used to go for education were called “maktab” which means a place to read books or a place to learn reading and writing. the education system in “maktab” were usually very tough for the children. the kids were supposed to learn quran and also the most important persian literature books. physical punishments were a common rule in these small traditional schools (maktab). 24 the last dynasty kingdom ruling over iran before islamic revelation 1978. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 100 aspects), so observing the same movement in the educational system of this society is not a matter of surprise. 3.4. a naturally and unavoidably embeddedness of “human rights social representations” in islamic culture of iranian one of the very noticeable features of iranian society facing the question of human rights/ children’s rights seems to be the islamic embeddedness concept of “the good life” and “the good human being” in the iranian culture. this was also a matter of notice in our interviews and observations in the field of elementary schools. occurrence #1: we were asking very young children in the school if they have heard about human rights or people’s rights.25 interestingly, we used to get answers linked to religious concepts like god's will and god's reward. the concepts of "equality" and "peace" were straightly defined through god's wish while "fighting" and "being cruel" were toward the evil's wish and against god's willingness to be a good human being. for the kids of eight or nine years old, this shows that their image of respecting other's rights comes with imperative concepts of "good" and "bad" which apparently comes from the islamic context of where they are culturally being nourished. here are some of the children’s discourses indicating what has been claimed above: “all the people are god’s creatures, so they are all equal.” (ana, 10 years old girl) “god doesn’t like people to fight; this is what evil likes and god will get upset!” (nazanin, 8 years old girl) “god created us to be friends and not to fight.” (mina, 9 years old girl) “if we do cruel things to other people, god won’t like us anymore.” (saba, 7 years old girl) “we have somehow in our divine gift book about people’s rights. it says that we have to be nice to others and not to fight with other people so god will reward us.” (tooran, 9 years old girl) teacher’s discourses also show a considerable tendency to rely on islamic culture in recognizing children’s rights. not only some teachers perform some islamic practices in the classroom like praying before starting the course, etc., but also many of them mentioned islam as a rich source for the rights of children: “islam has imaged the highest rights for the kids including the right to be respected, to be loved and treated nicely, to get their basic needs fulfilled: emotional needs and a need for socio-moral education.” (marzieh, 3rd-grade teacher) “islam has the best rules for human beings including the kids.” (hanieh, 3rd-grade teacher) “islam has recognized the rights of the kids the same as the adults.”(mandana, 2nd-grade teacher) 25 the two last dynasties (the kingdom) ruled over iran from 1796 to 1978. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 101 occurrence #2: another unconscious —or conscious to some extent—effect of islamic context on the social representations of children’s rights was the adults’ definition of the “age of childhood”.26 some of our interviewees showed a tendency to have an islamic view about the differentiation between girls' and boys' childhood age. girls are supposed to be considered as “not a child anymore” after the age of 9 years old or at most the age of physical puberty, while the situation is different for the boys. the boys’ age of puberty (and consequently the end of childhood) is at least 15 years old. this is obviously an islamic-based definition of childhood. people’s understanding of the end of childhood comes only with the islamic defined age of puberty while the age of 9 for the girls and 15 for the boys are supposed to be just considered as the age of spiritual maturity or beginning the spiritual practices for human beings even according to islam regulations. so the ages of civil or criminal responsibility have been assumed differently regarding modern interpretations of islamshari’a. (the modern interpretations of shari'a will be discussed briefly further in the current article.) moreover, the islamic and ideological educational system of iran has also an undeniable effect on the iranian religion-oriented understanding of human rights and “the good life”. we will, here, take a look at the long tradition of the islamic-ideological educational system in iran, while at the same time, a modern and enlightened interpretation of islam is also observable in iranian contemporary society. these two factors will explain our observation of social representations of children’s rights in elementary schools and will answer the question of why and how human rights social understanding of children and also teachers are significantly embedded in the islamic concept of “the good life” and “the good human being”. 4. step three: suggestions for iranian governance to move toward a better protection of children’s right to “proper education” in this third and final step of forming the critical legal essay, we now present our suggestions, the ones we hope to be useful for a child’s rights advocacy and that could be applicable in iran as a society with all its specific legal, cultural, and social features. therefore, putting together the legal, empirical, and philosophical outputs of this inquiry so far, we conclude that the iranian governance in the educational system could benefit from a change toward the virtue ethical concept of "proper education" which seems to be a modern and contractual type of education adapted to the islamic cultural context of this society. in this section, however, we will discuss this suggestion while separating two different aspects: 1. the suggestion for a change toward a modern and contractual authority in the educational system by using the tool of "contractual pedagogy"; 2. a link to the virtue ethic and its affection on the general educational policies to serve the islamic cultural and political aspect of iranian society. 26 unesco director-general, dialogue among civilizations: the round table on the eve of the united nations millennium summit unesco digital library (new york: round table on dialogue among civilizations(2000), 2001). a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 102 4.1. first proposal: contractual pedagogy to overcome the traditional mode of education the “psychological modernity” in mendel’s terms is probably an inescapable event in occident, but it is probably an inescapable event in the developing country of iran too, which stands in contrast to the traditional forms of social structures. having said that, it becomes rather logical to take the path to “contractual modernity theory” and transform it as a tool to renew traditional authoritarian forms towards the best support of children’s rights in iranian society. 4.1.1. characteristics of contractual authority in the educational system hereby, we first summarize the four mentioned characteristics of a contractual pedagogical authority in violaine lemay’s work. we then signal the presence or absence of them in the iranian education system according to our observations. although we came above to the conclusion of lacking such socio-psychological modernity in our investigated field, we also have noticed some practices that already seem to be open to this movement without knowing it. a. negotiation according to the theory of “contractual modern form of authority” (lemay 2005) presented in previous sections, negotiation has been referred to as a common principle in modern forms of relationships between the authority holders and subordinates, as it allows the latter ones to express their idea and choices and builds up a positive identity for them by providing a contractual context in which the subordinates’ rhythm is also taken in count in any development of a project. this is what we have observed in the students of iranian elementary schools in different ways. they try to show their identity by breaking the rules of the school.27 they have never been negotiated about ruling the school’s environment and are not even welljustified about what they are obliged to do, so they become resistant in accepting the regulations. the students usually find the school’s regulations unjust and unfair because they have received them as an imposing obligation with no regard for children’s need of being useful and worthy of consideration and counterpart. b. sharing the autonomy in the continuity of the principle of “negotiation”, the principle of “sharing autonomy” will be applicable. it means that once the opinion of subordinates has been consulted, they should get participated in making decisions in the cases where their own life and interests are involved. this is either because of a pragmatic point of view or a 27 “’everything is forbidden at school, but we still do!’: the common refusal of the legitimacy of school authority/regulation”, supra note 1 at 219-220. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 103 moral one that indicates the contractual relationships more efficient/functional or being just/moral. from a traditional point of view, only the superordinate of a professional relationship possesses useful knowledge (the doctor, the teacher, the psychologist, etc.), but from this "modern authority" point of view, both parties possess one: the under ordinate is the only one to know which are his personal preferences, habits or experiences that one has to know to achieve goals of the relationship. in our field, we had the feeling that the children’s desire for a cooperative type of teaching was a kind of aspiration for them. we have discussed28 what the students have experienced as a happy education by which we mean providing a cooperative environment in the classrooms to improve children’s enthusiasm to get involved in the process of learning which is not only more efficient in the sense of pedagogical aspect but also more in accordance with the children’s rights to “proper education.” c. communication of knowledge communication of knowledge is another common factor in modern human relationships, especially in subordinate relationships. it includes a kind of pedagogical contract between the two interactors, i.e. there should be communications in all the information and methods of acting without considering the age or level of comprehension of the parties. in education science, specifically, the teacher should explain and clarify the reasons for her/his choices even if the clients in this contract are the children. it is something different than the traditional task of the teacher which includes passing the information to the learners. it stays a vertical power relationship, but the verticality is voluntary reduced. then, it is more horizontal, as long as communicative connection reduces the "imposing type", transforming it into a more consensual form of transferring the knowledge to the students (they are still in compulsory school, but the feeling of it is softened.) the presence or absence of this principle in the iranian educational system depends again on the children-adult relationship in this sphere. it seems that although the teachers claim to be aware of the modern methods of teaching in the classrooms, there is still a gap between what they theoretically know and what practically happens. this is while students usually complain about the rules that they do not understand the rationality or they do not find them fair and they are not well justified about the established cameras in the school area. we could not consider the student-staff relationship following a communicative model either in sharing the information/ justification about the rules of the school or in respecting children as the right holders to be a part of the pedagogical contract. d. sharing responsibility the principle of sharing the responsibilities, which includes the explanations of reciprocal obligations (or roles), belongs to both the teacher and the students; as 28 “happiness as the aim and method of the ‘proper education’”, supra note 1 at 203-204. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 104 it proposes the teachers and school’s staff to make their goals and methods clear and justified (for the students and themselves) as well as explaining the students’ tasks and obligations. in sum, the clarification of the roles contains a clear atmosphere in the educational system in which the tasks and responsibilities are explicitly defined regarding the clear goals and methods of the education while considering the different cognitive capacities of the task holders. this is what we barely found in our observed field. the elementary schools of iran seemed to be more consistent with the traditional type of system. 4.2. second proposal: virtue ethics theory to adapt the modern education with islamic cultural context as it has been observed and discussed extensively in the earlier sections, the islamic aspect of iranian society is not detachable from the social representations of children's rights in the educational sphere. accordingly, the suggested paradigm shift — from a traditional form of authority in the educational policies to a “contractual” one which is compatible with the psychological modernity—, could not become a piece of well-fitted advice for iranian society unless we make an anchorage to islamic cultural context of this field. we have to serve the oriental features of this part of the world rather than adopting just a universal and occidental model that might fail to respond to the needs of these specific people. therefore, while looking for a suitable form of educational policies for iran, we will look up islamic education's aims and features with its connections to the teachings of virtue ethics. and then, through the political views coming from virtue ethics, we try to suggest public policies for the iranian governance in the educational system. 4.2.1. islamic education connected to virtue ethics as an aim-talk for iranian educational system we propose here that our conceived virtue ethical concept of the proper education is very well applicable in the society of iran especially because of the islamic embeddedness of the concept of the good life in our observed field. looking at the philosophy and aims of islamic education approves this approach. an analysis of the philosophy of islamic education states that “(i) aiding individual development, (ii) increasing understanding of society and its social and moral rules and (iii) transmitting knowledge” (halstead 2004, pp.522-523) are three main objectives of islamic education and if they might not be seen in many islamic countries in practice, it is mainly because of the influence of western ideas or failing in implementation of compatible methods. these aims could be observed very similar to the virtue ethics approach in education which intends to develop virtuous characters who besides the attempt for internal growth, are also devoted to developing their community toward a moral society. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 105 one could see the same rationality in the aims of education in islam that regarding the first world conference on muslim education held in jedda-mecca (1977) is “to produce a good man. [and] the ultimate aim lies in the realization of complete submission to allah as the creator, on the level of the individual, community, and humanity at large.” (yasin & jani 2013, p.3) it could also be found in the philosophy of great muslim thinkers like the 11thcentury iranian theologian al-ghazali and the 16th-century turkish moralist kinalizade, whose writings about islamic education have been compared by j. mark halstead (2007, p.290) as quoted below. let’s observe that their conceiving of islamic education is rather similar to the conception virtue ethic version of the “proper education”: “both scholars emphasize the role of parents in the moral upbringing of their own children, both consider the child to be a tabula rasa on which good habits can be imprinted, both discuss the tendency of young children to imitate others and hence stress the importance of encouraging good friendships and setting them a good example. both discuss the importance of learning discipline, self-sufficiency, and restraint, as well as generosity, politeness, and humility. both agree that teachers should genuinely care about their pupils, avoid excessive harshness, and encourage games as a way of relaxing and unwinding (as well as a way of familiarising them with the concept of rules).” islamic philosophy of education aims to make a balance between the three dimensions of sense, mind, and religious faith to achieve human values in reality. so, islamic education is aware of the significance of developing rationality and personal autonomy in attaining human virtues. while quran, as the main source of islamic teaching, advice repeatedly to think rationally and avoid blind faith even in accepting the basic rules of islam, the islamic philosophers and authors have also focused on the role of knowledge, science, and epistemology in achieving the ultimate truth: “this education believes that human life progress is the duty of every muslim. progress achievement is done by the activism of the three dimensions, namely epistemology production ought to rely on experimental and rational methods, while the ethical dimension constitutes a reference and authority to every human activity. thus, knowledge and science had a functional role which comes to achieve a better life for humankind.” (rayan 2012, p.156) therefore, a short look at the islamic education that is derived from the islamic ethics and rationality reveals very many common points with the aims of virtue ethics theory derived from ancient greek philosophy. both of them aim to educate “a good man” to achieve the final goal of “the good life”. in both, the means of this moral character education is developing rationality in order to possess virtues. knowing these similarities, now we can turn to the political aspect of virtue ethics theory to contribute to the educational public policies of islamic iran. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 106 4.2.2. the contribution of virtue ethics in educational public policies of iran to achieve the “proper education” in this last step of our critical essay, we will look for the political aspects of virtue ethics theory to help the iranian governance in improving toward the protection of children’s right to “proper education”. as the public policies of iranian governance have been discovered to be suffering from a traditional form of authority (earlier in the path of our critical discussion) which needs a reform toward a modern and contractual one, therefore, the main contribution of this essay to help the iranian governance will be in the field of public law which hopefully decreases the problems of educational public policies of this country. to briefly access the political philosophy ideas of virtue ethics, we would like to refer to the master thesis of the author of these words29, which has been a philosophical attempt to derive a theory of state from the moral philosophy of virtue ethics. the next lines are taken from this work. virtue ethics and the state (2011): in this thesis, the researcher first determines the three main principles of virtue ethics theory as virtues, practical wisdom, and eudemonia or happiness. then through a vast moral philosophical study from ancient greek to the contemporary virtue ethics philosophy, she concludes that the aim of happiness could be attained only through the possession of a rational capability named practical wisdom which by itself guarantees the moral choices or virtuous characteristics. then by reviewing the political philosophy literature of virtue ethics, including the ideas on liberty (the virtue ethical approach to the positive liberty), the common good (the virtue ethical approach to the communitarianism), and the human flourishing or the good life (the virtue ethical approach to the perfectionism), finally the author suggests a model of state for the virtue ethics approach to the governance. this model of state is based on the communitarian characteristic of human beings i.e. the character perfectionism is achievable through social activities and exercising the internal virtues by positioning in similar external situations.30 this suggested virtue ethical state, then, stands on two basic principles, virtues, and practical wisdom, that failing to adhere to each of them will end up an inconsistency and internal paradox. among the socio-political virtues that should become the principal virtues of the state are autonomy (a personal virtue that is developed under the protection of positive liberty) and toleration (a social virtue that causes a pluralistic society as an appropriate field for improving self-flourishing). the practical wisdom, however, could be conceived as the social aspect of the virtuous character that employs the internal practical wisdom toward the external flourishing of the community. therefore, a liberal state (either 29 the citation of this master dissertation has been removed due to the journal’s anonymity policy. 30 see: david mccabe, “joseph raz and the contextual argument for liberal perfectionism” (2001) 111:3 ethics 493–522. fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 107 a political liberalism31 or a perfectionist liberalism32) 33 with the main task of education (to improve the practical wisdom autonomous characters) could be imagined for a virtue ethical state. having reviewed the political theory of virtue ethics, we can now adapt such a model of the state in the public policies of iranian governance regarding the protection of children’s rights to “proper education”. a virtue ethical educational system, then, would have to adhere to two central principles: promoting autonomy/toleration and improving practical wisdom (moral rationality). according to the previous discussion on the political philosophy of virtue ethics, the educational policies of such a state would aim to provide the children with an open future and a flourished character. although some authors believe that the unavoidable distance between islamic and western liberal conceptions of education is “ultimately unbridgeable” (eaton 1982, p.114), but there is a conscious stream of thinking in iran that seeks the modern democratic principles without surpassing the islamic culture. this trend is known with the thoughts of abdulkarim sorush, the well-known figure among islamic intellectuals and philosophers at the forefront of the reform movement in post-revolutionary iran (vahdat 2003). he emphasizes the role of reasoning and rationality in modern islamic interpretations and therefore does not find it contradictive with the modern rationality of science and democracy: “... a necessary prerequisite to the democratization of the religious government is to make religious thought more flexible by elevating the role of 'reason' in it; that is not individual but the collective reason, arising from the participation of all and benefiting from humanity's experiences; and this is possible only through democratic means.” (soroush 1994, p.280) even though the islamic state of iran is not neutral about the best form of life and promotes the islamic values in the society by its nature, our suggested model of education 31 political liberalism has been defended by john rawls and martha nussbaum (a contemporary virtue ethics philosopher). refer to: john rawls, political liberalism (columbia university press, 2005). martha c nussbaum, “perfectionist liberalism and political liberalism” (2011) 39:1 philos public aff 3–45. 32 perfectionist liberalism is defended by joseph raz. refer to: francesco biondo, “two types of liberal perfectionism” (2005) 18 ratio juris 519. mccabe, david. “joseph raz and the contextual argument for liberal perfectionism” (2001) 111:3 ethics 493–522. joseph raz, the morality of freedom (clarendon press, 1986), google-books-id: u3fzzapkf08c. 33 while the perfectionist liberalism believes in the priority of a form of life for which the liberal states have the duty of providing positive liberty (not being just neutral about all the values but also putting efforts in promoting the social value meaning autonomy in the contemporary world), the political liberalism promotes the virtue of toleration by accepting that all the forms of life and religions could claim their own priority but have to respect and tolerate the other approaches. however, both perfectionist and political liberalism focus on autonomy as the principal virtue that would result in the ultimate good life or happiness for the human being. a critical legal essay to advocate iranian children’s right to “proper” education the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 108 promotes these virtues only to some extent that does not limit the free circulation of information and liberty of expression of other forms of life or religions. therefore, due to the result of such a pluralistic society, the children would have the chance to get informed about all the choices of their life and by benefiting an autonomous character, their right to an open future and self-flourishing would be served. this education also benefits the contractual approach to the authority in the relationship of adults-children and employs the modern psychological methods to develop moral characters with the most probable mental health. the character education methods which are based on developing the character strengths with constructive responses and with the approach of a human rights-friendly school would be suggestable in this educational policy. regarding the suggestions of this critical legal essay, thus, the iranian governance could improve toward better protection of children’s right to “proper education”, if the iranian public law moves toward more political liberalism which especially in its educational public policies aims to promote autonomy and toleration among the children who will build an open future for themselves and their community. these children will benefit from the fruit of enjoying the right to "proper education" regarding the very own cultural social features of iranian contemporary society. conclusion to find a piece of advice for iranian governance to get improved in respecting children’s right to proper education, we put together, in this article, the results of a classical legal study on the internal legal system of iran, the philosophical outcome of a research on virtue ethic state as a proper model of governance for islamic countries like iran and the empirical results presenting the social representations of human rights in iranian educational system. we started by looking critically at the legal and educational system of iran regarding the protection of children’s right to proper education. in this step we pointed out that this socio-legal system suffers from three significant problems: 1) a deficiency in the public policies of iranian governance in children’s affairs and the social inertia problem of the persistence of an obsolete and counterproductive form of educational authority. 2) a traditional interpretation of islam also affects the legal and political approaches of the iranian state. 3) a traditional mode of authority in the educational system of iran that is not consistent with the psychological modernity of the children-adults relationship. then we looked for the socio-cultural features of iranian society which should be considered for any potential improvement. three significant notions were detected in this regard: 1) a pro-democratic social collective hope and a high desire for human rights implementation, starting from the elementary schools; 2) the islamic educational system in iran that makes the comprehension of human rights inseparable from islamic culture in this field and 3) the modern and enlightened interpretation of islam that iranian intellectuals find it more consistent with international human rights regulations. therefore, one stays optimistic about the openness of this developing country, as the irresistible desire of people for fateme bostani the age of human rights journal, 16 (june 2021) pp. 81-112 issn: 2340-9592 doi: 10.17561/tahrj.v16.6317 109 entering the world of democracy and human rights seems to be an open window through a paradigm change. in our second step, we offered the result of an experimental study on the human rights social representations in iranian elementary schools that actually confirmed all the difficulties and socio-cultural features mentioned in the literature review. being equipped with all this information, in the third step, we looked for final advice for iranian governance to get improved in the condition of children’s rights in the educational system, which will be a very domestic right to “proper education”. first of all, a paradigm shift from the actual traditional form of authority into a modern “contractual” one, in the sense that lemay means and which is compatible with the modern psychology of children is suggested. having reviewed the political philosophy and the suggested theory of virtue ethics state and by reflecting the central public principles of such a government into the educational public policies, the conclusion was to advise the iranian governance to approach a liberal form of policies that despite keeping its chosen main religion as islam and developing the islamic virtues, will focus on developing the two critical virtues of autonomy and toleration. by this policy, the islamic and virtue ethical aim of “proper education” will be served to improve the condition of the children’s “right to an open future” and “the right to character flourishing”. by these three steps of interdisciplinary critical rationality, we tried to create a form of legal 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(ph.d. thesis, mcgill university, 1998) [unpublished]. zarei matin, hasan, gholamreza jandaghi & boshra moeeni. “considering and comparing the extent of structural learning in public and private schools of qom in 20022003” (2003) 3:22 j handl cult 47–68. received: january 21st 2021 accepted: april 29th 2021 https://doi.org/10.1111/j.1088-4963.2011.01200.x a critical legal essay to advocate iranian children's right to "proper" education abstract 1. introduction 2. step one: the actual condition of children’s right to “proper education” in iran 2.1. some observed problems in iran’s politico-legal and educational system 2.1.1. iran’s public policies deficiency regarding children’s rights 2.1.2. a view to the iranian legal system regarding the children’s rights protection 2.1.3. traditional mode of authority in the iranian educational system 2.2. the iranian socio-cultural features to be considered for any potential improvement 2.2.1. iranian pro-democratic movement 2.2.2. islamic educational system in iran 2.2.3. the modern and enlighted interpretations of islam in iranian intellectuals 3. step two: social representations of children’s rights in iran through the empirical results 3.1. overlooking children’s rights in iranian public policy 3.2. empirical occurrences related to the traditional authority in school 3.3. pro-democratic social representation in iranian elementary schools 3.4. a naturally and unavoidably embeddedness of “human rights social representations” in islamic c 4. step three: suggestions for iranian governance to move toward a better protection of children’s 4.1. first proposal: contractual pedagogy to overcome the traditional mode of education 4.1.1. characteristics of contractual authority in the educational system 4.2. second proposal: virtue ethics theory to adapt the modern education with islamic cultural co 4.2.1. islamic education connected to virtue ethics as an aim-talk for iranian educational system 4.2.2. the contribution of virtue ethics in educational public policies of iran to achieve the “p conclusion bibliography the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 186 the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe nataliya khoma1 oleksii kokoriev2 abstract: the article studies the compliance of democracy of the baltic states with the principle of tolerance. the study demonstrated specific social phobias (xenophobia, migrant phobia, homophobia, islamophobia, romaphobia, etc.), hate speech and other destructive trends in the baltic countries that contradict values of liberal democracy. the authors argue that baltic states face similar challenges of strengthening the principle of tolerance as well as how they differ in intolerance manifestations and mechanisms of their prevention and counteraction. in the baltic states, issues related to promotion of tolerance are claimed to be common at two levels: at the institutional level (countries do not fulfil some of the eu guidelines aimed at enhancing the principle of tolerance); at the value level (population does not accept completely liberal-democratic values that the eu advocates). keywords: the baltic states, the principle of tolerance, intolerance, social phobias, hate speech. summary: 1. introduction. 2. the compliance of estonia with the principle of tolerance as the condition for progress of the united europe. 3. tolerance vs intolerance: latvia’s case as an example of value and institutional ambivalence. 4. social anxiety and phobias on the intolerance basis in lithuania. 5. conclusions. 1. introduction in the political and legal discourse, tolerance has been the critical subject for a long time. modern scientific discussions are aimed at finding clearer limits of tolerance in the world when new global and local challenges emerge. determining effective ways in practical and multidimensional implementation of the principle of tolerance, prevention and counteraction of intolerance remains relevant in the political and legal realties. the intention of states to exercise the principle of tolerance is enshrined in many documents, ranging from the preamble to the un charter (charter of the united nations, 1945) and the interpretation of tolerance as "harmony in difference" (declaration of principles on tolerance, 1995). tolerance is often interpreted as “forbearance” or the readiness to “put up with” with what one dislikes (rapp and freitag 2015; verkuyten and 1 dr sc. pol. (doctor of political sciences), professor of the political science and international relations department, lviv polytechnic national university, ukraine (nataliia.m.khoma@lpnu.ua) 2 dr sc. pol. (doctor of political sciences), college of telecommunication and informatization of odessa national academy of telecommunications named after а.s. popov, ukraine (coledgeonat@ukr.net) nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 187 slooter 2007). we adhere to the interpretation of tolerance as a socio-cultural attitude and the perception that all possible diversity is a positive matter, the norm of coexistence. at the same time, the notion “tolerance” is frail due to its abstract nature that is aimed at assessing one’s compliance to certain significant political and legal values. back in1976, j. w. ferrar highlighted in his research that “the concept of tolerance is in a state of disarray” (ferrar, 1976, p. 63). since then the situation has not altered greatly, despite a fairly large number of empirical and theoretical-methodological studies of tolerance. nowadays, a quite stable consensus is formed on understanding tolerance as the necessary condition for the progress of democracy (kuklinski et al., 1991, р. 3). since regression of democracy is seen worldwide, obviously deterioration of the quality of democracy should be studied in the context of increasing intolerance. discussion regarding the issue of tolerance/intolerance intensified with the escalation of the migration issue in the eu in 2015. during the global pandemic covid-19 we witnessed the expansion of the discussions concerning the limits and forms of tolerance in socio-political life. the issue of reliable indicators for measuring tolerance / intolerance (hjerm et al., 2020, pp. 898899) in order to assess the situation in the state has not lost its seriousness. the presence of certain prejudices is the indicator that is mostly used to study tolerance / intolerance. at the same time, the study of tolerance as a value orientation towards difference is expanding (hjerm et al., 2020, p. 914). as a matter of fact, the eu promotes tolerance as one of the most important conditions of its functioning. the eu advocates the values of diversity, “being another or unlike”, the right to opinion pluralism. the eu member-states signed declaration of principles on tolerance (1995). although, the eu member-countries are aimed at endorsing the rule of law and liberal democracy3, nowadays, all of them are challenged to a greater or lesser extent by violations of rights and liberties of “others” through gender, age, educational, interethnic, racial, religious, political, sexual, etc. discrimination. we imply segregation, racism, xenophobia, migrant phobia, romophobia, homophobia, the increase of hate speech and others. radical right-wing organizations, neoracists, religious fundamentalists, chauvinists, xenophobic or ethnocentric people and other disruptive groups reject the principle of tolerance publicly. moreover, some high-ranking officials deliver hate speeches that go unpunished. all these violations challenge the eu’s policy of affirming the value of tolerance which is a cornerstone of the progress of the united european community. thus, the effective prevention as well as counteraction of intolerance is on the eu agenda. the immensity of the intolerance issue in the eu is testified by the public surveys. according to the results of the special eurobarometer on discrimination (special eurobarometer 493, 2019), respondents from the eu countries pointed out the cases of discrimination toward the roma people (61%), harassment by the ethnic origin or skin 3 hungary and poland are the exceptions among the eu member states as there was an illiberal turn in the last decade. this process is characterized by conservative nationalist atmosphere, intensification of hate speech, xenophobia, opposition to immigration. the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 188 color (59%), sexual orientation (53%), religion or worship (47%), disability (44%), age (40%) and gender (35%). we should highlight that levels of particular types of intolerance vary significantly in different eu countries. the indicated demonstrations of intolerance also prevail in the “young” baltic democracies. moreover, estonia, latvia and lithuania face common challenges and differ in the intolerance manifestations as well as in approaches of preventing and counteracting them. these processes should be studied. 2. the compliance of estonia with the principle of tolerance as the condition for progress of the united europe the national legislation of estonia (võrdse kohtlemise seadus, 2008) as well as the state’s implementation of the international rules are aimed at preventing and counteracting any discrimination through efforts of state institutions and civil society. however, it cannot be prevented completely in practice. we should mention that in estonia issues of tolerance are greatly influenced by their history as foreigners ruled in these territories for a long time, for example, danes, german, swedes, russians (tsarist and soviet periods). particularly traumatic was the soviet occupation. its results are still noticeable today, primarily, in terms of political culture of population. however, estonia preserved its cultural, linguistic, etc. identity despite the huge external impact. this is the reason why estonia (as well as latvia) has chosen a model of ethno-national self-defense, which aims to ensure the privileged position of the titular ethnic group through strict conditions for acquiring citizenship, language, personnel policy (vitman, 2006, p. 55). following the declaration of independence (and especially after a pseudoreferendum in 1993 and a separatist attempt to secede from estonia by three cities: narva, sillamäe and kohtla-järve4) the policy towards estonia's russian-speaking minority was intensified. the critics of this approach determined it as discrimination and intolerance. the course of european integration has softened estonia's policy on this issue, as the eu has demanded a review of the acquisition of citizenship by the russian-speaking population. since 2015, estonia has softened language requirements for people over 65. since 2016, the automatic granting of estonian citizenship to children born in estonia, regardless of the citizenship of their parents was permitted (ecri report on estonia, 2015, p. 9). thus, there were 32% of people who lived in estonia without citizenship in 1992, 6.5% of people in 2014 and 5.3% of population at the beginning of 2020. we should highlight that the integration policy of the russian-speaking population has not always been effective since estonia’s membership in the eu. it is related to a part of the stateless persons (mostly older people) who are less motivated to learn estonian language or to integrate into the estonian community as they may exercise the same rights as the eu citizens since 2004. 4 the north-eastern region of estonia that was culturally and media isolated from the rest of the country for a long time. nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 189 as for the youth, for some time it was difficult for the russian-speaking young people in estonia to compete with estonians when entering the institutions of higher education in tallinn or tartu due to the high standards of knowledge of the estonian language. however, the state solved the problem of increasing their socio-economic marginalization through the establishment of a college for russian-speaking youth from the university of tartu in narva. education there is in estonian, but the requirements to the knowledge of language are lower. in 2015, the public tv channel etv + was created for the russian-speaking audience. we should mention that contrary to latvia, estonia did not ban the russian media. the study of administrative service portals and other important online resources in estonia has shown that the estonian population that does not speak the state language fully receives information through multilingual internet services. for example, official information of covid-19 is reported equally in estonian, english and russian. the estonian authorities support the policy of broadcasting significant information in many languages and this is an essential step towards establishing the principle of tolerance. it should be noted that freedom of religion is enshrined at the constitutional level in estonia; incitement to religious hatred as well as discrimination on religious grounds are criminalized. in general, religious tolerance in estonia is high; manifestations of religious intolerance are not frequent. manifestation of anti-semitism is a sensitive topic in estonia, as almost all jews in the country were killed by january 1942. it was estonia that the nazis declared the first “juden frei” country in europe (“territory free of jews”). the jewish community has been concerned about the recent initiatives by the estonian conservative people's party (ekre). one of them was to return a monument to an estonian soldier (a monument to soldiers of the estonian ss legion) that was exhibited in a nazi uniform. a number of other crimes related to intolerance have been recorded, such as the desecration of a monument to holocaust victims in the village of kalevi-liiva near tallinn; it was marked with a swastika, a nazi salute (august 2018). another desecration of tombstones was in the ancient jewish rahumäe cemetery in tallinn (june 2019), etc. discrimination and social exclusion of the roma people are among the acute tolerance problems in many eu countries. the roma community is small in estonia (0.1% of the population). usually estonian roma have access to public health insurance and education. however, their level of education is low, therefore the unemployment rate is high. there are issues with the complete integration of the roma people into estonian society as well as destructive stereotypes about them still persist (viies, 2011, p. 3). islamophobia is a certain tolerance challenge for estonia today, although its manifestations are currently infrequent. estonia has one of the smallest muslim communities in europe, only about 1,500 people profess islam. the most serious incident of intolerance can be considered an act of vandalism in 2018. on the facade of the building of the estonian islamic center were inscriptions that can be classified as islamophobia. it should be mentioned that wearing of islamic clothing is currently allowed in estonia, but, the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 190 in 2015, the estonian ministry of justice started working on a bill that would ban from wearing a burqa or niqab in public places (government agencies, schools, hospitals, etc.). estonian muslims consider the potential introduction of these changes discriminatory. the problem of tolerance for sexual minorities is especially intense in most regions of the world. although estonia is considered more liberal to the lgbtq community than other baltic countries, discrimination and prejudice against this group have been widespread in estonian society until recently. at the same time, even before estonia's accession to the eu in 2004, the state institution brought national legislation in line with eu norms regarding the inadmissibility of different forms of discrimination on the grounds of sexual orientation. same-sex relations were decriminalized in estonia in 1992. since 2002, transgender people in estonia have been allowed to change their legal status and name. since 2006, the criminal code of the republic of estonia has authorized public incitement to hatred based on sexual orientation. representatives of sexual minorities can serve in the estonian army. estonia's greatest progress in combating intolerance towards sexual minorities was achieved with the adoption of the law “on cohabitation” in 2014 (took effect in 2016). it allowed the legalization of relationships between people living without marriage registration. this act was the first manifestation of the legalization of civil partnership in the post-soviet space. it is an alternative to traditional marriage, which is possible in particular for same-sex couples. since then, same-sex unions have been legally registered in estonia (notarized), and homosexual couples have been equated in rights with heterosexuals living in civil marriages. it should be highlighted that in the case of homosexual couples, not marriage, but same-sex civil partnership is implied. yet, the topic of same-sex relations remains controversial in the estonian community. this fact is illustrated by the results of a monitoring poll which was conducted in 2012, 2014, 2017 and 2019 by the finnish company turu-uuringute as and commissioned by the estonian human rights center. based on their results, an idea of estonians' attitude towards sexual minorities is formed, as well as the dynamics of constructive / destructive changes on this issue. in 2019, 41% of respondents considered same-sex relationships completely or rather acceptable, while 52% viewed them as completely or rather unacceptable (lgbt teemaline avaliku arvamuse uuring, 2012). they can be compared to the results of the previous years, in 2012 – 38% and 57%, in 2014 – 34% and 59% of respondents replied respectively. the level of tolerance / intolerance of estonians towards sexual minorities can be assessed only in relation to other countries. for example, in finland and denmark, high tolerance is exhibited through the right to same-sex marriage, while in lithuania and latvia, intolerance for sexual minorities is manifested in strong opposition to the institution of same-sex partnerships (as in estonia). of course, tolerance for sexual minorities in estonia is rising, albeit slowly. however, this growth is uneven for different socio-demographic groups. the level of tolerance of estonians towards sexual minorities correlates with age, language of communication and level of education. the greatest support for the law is in the age group of 20-29. most likely, this fact can be explained by the liberal democratization of the nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 191 political culture of citizens who were born in independent estonia and socialized largely by the influence of neoliberal democracy values. compared to other baltic countries, the level of homophobia in estonia is much lower. there are many more programs aimed at preventing it. however, intolerance towards sexual minorities is demonstrated in the statements of some government officials, political and public figures of conservative, clerical, and right-wing radical ideas. it should be noted that in estonia there is no legal regulation of the hate speech issue, although the problems caused by it are obvious in estonian society. there are racist comments in social networks, state institutions do not respond properly to homophobic, transphobic statements of politicians. moreover, reporting on cases of racial, homophobic and transphobic intolerance is insufficient, the level of training of police and judges to respond appropriately to hate speech is inadequate, management of the events that intend to draw public attention to the problem of hate speech and prevent it is problematic. these unresolved issues are highlighted by the european commission against racism and intolerance (ecri report on estonia, 2015). at the same time, the efforts of estonian state and non-state groups should not be ignored. for many years they have been conducting many social campaigns against racism, homophobia, etc. which contributes to the strengthening of estonian tolerance. the issue of overcoming xenophobia in the workplace remains relevant for estonia. in companies, conflicts based on values related to the ethnicity of employees have been repeatedly reported. since 2012, legal entities in estonia have joined the signing of the estonian diversity charter which obliges employers to respect the diversity of the current society as well as to protect staff from various discrimination in the workplace (estonian diversity charter, 2012). an important factor of the rising intolerance is the coming to power of radical, populist political parties, the intensification of the illiberal segment of civil society in many eu countries. estonia is not an exception. right-wing populist, eurosceptic parties have been represented in the parliament in recent years. in particular, it is related to the ekre party whose program is based on populism and the slogan “estonia – for estonians”. according to the results of its first election campaign (in 2015), this party entered into the riigkogu (8% of the vote), and in the next elections (in 2019) has already received 18% of the vote. this is the largest increase in parliamentary representation among all estonian parties, despite the fact that members of the ekre party express misogynistic, anti-semitic, xenophobic, homophobic and racist views (bathke, 2019). this situation is an alarming marker for values of estonian society. even before the party entered riigikogu, ekre leaders voiced intolerant messages, such as “if you're black, go back!” (conservative politician, 2013). today, the attitude of the party and its leaders is even tougher, that is, general opposition to migrants regardless of their skin color and country of origin. one of the reasons for ekre's electoral success has been the escalation of the migration crisis in europe since 2015 and the manipulation of anxiety about the possible problems of small estonia, due to the need to comply with eu migration quotas. although, the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 192 immigrants are largely satisfied with life in estonia, they assess the level of estonians tolerance as insufficient due to cases of disrespect, violence, prejudice against them personally or their community (survey of new immigrants to estonia, 2016). it should be noted that as of 2018, estonia has accommodated only two hundred refugees within the migration plan agreed by the eu member states in 2015. estonia is certainly open to migrant entrepreneurs, initiators of innovative startups, and talented programmers, but it applies to refugees from conflict and war zones less. currently there are two refugee centers in estonia (vao, vägeva) and the number of accommodated people is decreasing every year. in particular, as of may 1st, 2020, only 40 people lived in these centers (lepik, 2020). estonia declared that it is ready to join the eu in resolving the migration crisis, but in terms of providing technical assistance within eu refugee programs. this position of the state was announced by the minister of the interior of estonia m. helme and it is completely consistent with the ekre course. according to m. helme, as long as ekre is a part of the estonian government, the country will not be open to immigrants (helme, 2019). at the same time, estonia is successfully implementing certain steps to overcome a number of intolerance problems. for instance, there were launched a system of data collection and a system of statistics on cases of racist and homoand transphobic hate speech, which were reported to law enforcement agencies and prosecuted by the courts; the implementation of the integration strategy of vulnerable groups (russian-speaking minority, stateless persons applying for citizenship of the republic of estonia, etc.) (ecri conclusions, 2018). information campaigns are being implemented to form a positive perception of different nationalities inhabiting estonia, for example, the tv program “meie eestid” (aired on the estonian tv channel etv in 2017). 3. tolerance vs intolerance: latvia’s case as an example of value and institutional ambivalence in the sustainable development strategy of latvia until 2030 (“latvija 2030”) tolerance is determined as one of the strategic principles. however, the document’s interpretation of the content of tolerance indicates a narrow list of fileds for reducing social exclusion and discrimination, that is, “inequality of income, age and gender discrimination in the labor market, ethnic prejudices and linguistic institutional obstacles” (sustainable development strategy of latvia until 2030, 2010, p. 8). one of the most acute intolerance and discrimination issues in latvia is citizenship that has a historical background. world war ii and soviet occupation have greatly changed the ethnic structure of the country’s population. before the declaration of independence only 52% of the population were latvians. the long latvian-russian border (270 km) as well as the numerous russian minority are the factors that aggravates the issue of stateless persons. these aspects are considered as a potential threat to the country’s preservation of sovereignty as well as falling under the strong influence of the russian federation. thus, after the restoration of independence, the policy of citizenship was based on doctrine of state continuity. in 1994, latvian parliament legislated the procedure for acquiring nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 193 citizenship through naturalization. at the same time, the european institutions prompted the liberalization of the citizenship procedure. therefore, in latvia (as in estonia), the status of non-citizen has been authorized, and it can be changed via naturalization. it is criticized due to the fact that this status makes it impossible to exercise a number of human rights. contrary to estonians, latvian noncitizens cannot vote in the local elections. in general, stateless persons consider this status discriminatory and the process of fulfilling the criteria to acquire citizenship is viewed as humiliation as well as restriction of human rights. these aspects exacerbate the issue. if latvia is compared with estonia, the percentage of non-citizens in the latvian population is twice higher, however, their number decreases. in 1995, there were 28% of stateless persons, in 2011 – 14.1%, in 2017 – 11.4%, in 2019 – 10.7% and in 2020 – 10.4%. the eu institutions criticized latvia repeatedly for having non-citizen children. though their amount is not high (in 2016, there were 47, in 2017 – 51, in 2018 – 33 children), the situation itself is unacceptable in the context of the contemporary understanding of the children’s rights and safety. in 2017, the president of latvia raimonds vējonis initiated the automatic granting of citizenship to children born to the non-citizen parents, but then this innovation did not receive political support. on october 17, 2019, the saeima of the republic of latvia passed historic legislation that automatically grants citizenship to all children born from january 1st, 2020 and it only requires an application from one of the parents. thus, due to the law changes in the citizenship of the newborns, the number of non-citizens will gradually decrease, and the amount of people of retirement and preretirement age among non-citizens will grow. intolerance for sexual orientation is one of the most intense issues in latvia. samesex relationships are legalized since 1992, and representatives of sexual minorities can serve in the army. however, they cannot marry, adopt a child or register a same-sex civil partnership as an alternative to marriage (as in estonia). the constitution of the republic of latvia prohibits same-sex marriage indirectly. in article 10, the family is defined as the union of a man and a woman. latvian sexual minorities continue to face additional legal and social challenges. a high percentage of latvians are prejudiced against sexual minorities due to social conservatism. intolerance towards sexual minorities is the most vivid at the public events. during the first parade in latvia “riga pride” in 2005, homophobic manifestations were recorded and the event itself was disrupted (birnbaum, 2015). notably, even the high-ranked politicians opposed the pride publicly, for instance, a former prime minister of latvia aigars kalvītis. though, in recent years, homophobia is less exhibited during the parades, they are held involving a great number of law enforcement officers. remarkably, latvian political and state officials usually distance themselves from events held by sexual minorities, therefore, they do not direct public opinion towards the tolerance ideas. edgars rinkēvič was the first latvian official (minister of foreign affairs) who informed about being gay in his twitter. minister announced this fact in order to fight for the legalization of same-sex marriages in latvia, or at least same-sex civil partnership. the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 194 we should highlight that on january 30, 2015, a latvian politician veiko spolīš submitted a bill that would legalize civil partnership in latvia. however, the proposal was rejected by the legal affairs committee. the initiation of the bill started a discussion in the country (miķelsone, 2015). in 2019, the saeima considered civil partnership bill, but did not support it. the 2019 survey of special eurobarometer 493: discrimination in the eu reported on the low level of tolerance of latvians towards same-sex relationship: only 25% of the respondents agreed that it is normal, while 68% considered it unacceptable. however, latvians were more tolerant answering the question whether the lgbtq community representatives should have equal rights with the heterosexuals (49% respondents agreed to the equality, while 43% disagreed). at the same time, latvia’s level of intolerance towards sexual minorities is the highest among the baltic countries. in general, latvia develops from survival to self-expression values quite slowly and low level of tolerance for sexual minorities proves that (rungule and seņkāne, 2018, p. 95). intolerance towards sexual minorities is demonstrated not only by destructive non-governmental actors, but it can also be argued and originated by the state institutions. however, we have already recorded examples of how the state institution in latvia (court) defended sexual minorities despite the prevailing atmosphere of conservatism in the society. a specific case illustrates that. on 12 november 2020, the constitutional court delivered the judgement in case no. 2019-33-01 “on the compliance of article 155 (1) of the labour law with the first sentence of article 110 of the constitution of the republic of latvia” (spriedums 2020). the contested provision was article 155(1) of the labour law according to which: “the father of a child is entitled to a leave of 10 calendar days. leave shall be granted to the father of a child immediately after the birth of the child, but not later than within two months from the birth of the child”. the issue of this lawsuit is that the constitution of latvia defends and supports family exclusively as the union of a man and a woman. while a plaintiff was a woman in a stable samesex relationship and applied for paternity leave, which was granted exclusively to male parents in latvia until now. we think that the constitutional court of the republic of latvia took a prudent view when considering the specific case. especially, in a situation where the interpretation of the family as a union of a man and a woman is enshrined in the constitution of the state. the court took the following position: alongside the state’s obligation to protect and support marriage as a union between a man and a woman, the first sentence of article 110 of the satversme establishes an obligation of the state to protect and support also family, parents, and children. the constitutional court concluded that a family was a social institution founded on close personal ties that could be identified in the social reality, and based on understanding and respect. even in the absence of a biological link or legally recognized child-parent relationship, de facto family relationships can exist between a child and the person who has taken care of the child, depending on whether they live together, on the duration and quality of their relationship as well as the adult’s role in the relationship with the child. the existence of close personal ties follows from nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 195 a concluded marriage or the fact of kinship; however, in the social reality close personal ties develop also in other ways, for instance, as the result of de facto cohabitation. the first sentence of article 110 of the satversme defines a positive obligation of the state to protect and support all families, also, inter alia, de facto families (spriedums 2020). the constitutional court of latvia paid attention to the fact that the concept of marriage has been defined in the first sentence of article 110 of the satversme as a union between a man and a woman; however, the concept of family used in the same article has not been specified and does not advance gender as a criterion for determining the persons who should be recognized as being a family. the constitutional court of latvia emphasized that the stereotypes prevailing in the society may not serve as constitutionally justifiable grounds for denying or restricting the fundamental rights of a certain person or groups of persons in a democratic state governed by the rule of law. if the constitution declares the human right to privacy, the state must consider sexual behavior as one of the elements of person’s private life. therefore, the constitutional court of latvia assessed that human right to freedom of sexual behavior requires defense despite the way of its expression or sexual orientation (case № 2019-33-01). in this context, it is the state’s obligation to protect and support families of same-sex partners. it is a positive trend that the constitutional court of latvia took a position that the state is obliged to ensure the legal protection for families of same-sex partners as well as to regulate provision of social support to such families. although, the latvian parliament (the saeima) interprets the concept of family in a conservative way, it cannot be a reason to deprive families with same-sex partners of adequate social and economic support from the state. thus, it is necessary to amend the text of the constitution of the republic of latvia (article 110). since decisions of the constitutional court are not subject to appeal there is reason to expect changes in a situation where still only mother and child are socially and economically protected by the state in a same-sex family, while another partner is disadvantaged in many ways. it is clear that the republic of latvia has to study the issue of the legal status of same-sex families carefully and in details. the important objective for latvia is to make changes in the legal regulation of family relations in order to further ensure the protection and support of same-sex partners and children born into their families. there are some other issues in the context of tolerance within the latvian society and state. issues related to the country's historical heritage, especially during world war ii, remain particularly sensitive in terms of tolerance / intolerance in latvia. first of all, we imply the annual marches in riga (on march 16) which are held to honor members of the local legion waffen-ss. as of the beginning of 2020, about 400 legionnaires lived in different countries worldwide and some of them are in latvia. there is no unity in the latvian community regarding the attitude towards legionnaires and the state's policy towards them. this was pointed out by the european commission against racism and intolerance (ecri report on latvia, 2012, pp. 7, 24-25) the european institutions are sympathetic to the fact that part of the latvian public views the legion's activities not as solidarity with nazism but as a struggle the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 196 against the soviet regime to restore the country’s sovereignty. however, in 2012, ecri voiced concern about the try to justify the legion's actions as this can threaten to incite xenophobia, anti-semitism and intolerance. the united nations, the european parliament, jewish organizations and other institutions have also repeatedly expressed concern over events such as latvian legionnaires' remembrance day. despite ecri's assessments, latvia continues the tradition of commemorative events dedicated to the unofficial day of remembrance of latvian legionnaires who fought in world war ii. these ceremonies are always followed by different incidents which requires the strengthening of law enforcement measures. the events of world war ii are connected with other problems that arise in latvia in terms of tolerance. for example, in 2014, the israeli government protested against the staging of the musical “cukurs, herbert cukurs”. it honors the memory of herberts cukurs, a latvian soldier who was a member of the arajs kommando, which was involved in the extermination of latvian jews during the holocaust in the second world war. at the same time, as an aviator and writer, cukurs is perceived in latvia as a national hero. in fact, the musical “cukurs, herbert cukurs” was prepared by a private company. although it was criticized by the latvian authorities, it is not banned. in recent years, the latvian state's attention to hate speech has increased at the request of eu institutions. the changes that are taking place are mainly reflected in the legislative innovations caused by latvia's international obligations. in particular, in 2014, the criminal code of the republic of latvia was amended to provide criminal liability for inciting social hatred on the grounds of sex, age, disability, etc. the topic of racism was supplemented by national, ethnic, religious matters, that is, the range of hate-vulnerable groups was expanded. although the list of vulnerable groups is not complete, parliament did not include sexual orientation in it, despite the high level of homophobia in latvia. in addition, it should be noted that the incitement of hate speech on the internet is a growing problem nowadays. at the same time, public information on the recorded hate crimes in latvia is insufficient. official data on such crimes are limited and the amount of criminal proceedings for offenses committed on the basis of hate speech remains insignificant. government statistics on the number of offenses committed on the grounds of racial hatred, xenophobia and homophobia differs greatly from the unofficial statistics compiled by latvian human rights ngos (latvian center for human rights, “mosaic”, etc.) (kamenska, 2017, p. 6). it should also be noted that a common trend in latvia is the reluctance of victims of hate crimes to report them to law enforcement agencies. one of the possible reasons is insufficient government programs to support victims of hate crimes. the latvian government started providing public funding for social rehabilitation services to victims of all types of crimes only in 2015. prevention and counteraction of various manifestations of intolerance, measures to improve the political and legal culture of both the population and professionals whose objective is to prevent and combat intolerance are paramount for latvia. there is information that the state police college has conducted a training course for latvian nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 197 judicial and law enforcement officers on hate speech and the proper response to such offenses. but, researchers characterize these measures as irregular and unsystematic (kamenska, 2017, p. 6). after the beginning of the european migration crisis in 2015, refugees from outside europe are particularly vulnerable to xenophobia and alienation in latvia (responding to racism in latvia, 2019, p. 2). latvia accommodated 374 refugees (the eu quota was 550 people). latvia was one of those countries that in 2017 actively supported the initiative of polish prime minister d. tusk to abolish the eu practice of setting refugee quotas for member countries. instead, latvia supported the agreement between the eu and turkey on the reception of refugees by the latter country (readmission) in exchange for financial assistance from eu member states. most of the people accommodated in latvia under eu quotas soon departed mainly to germany or the scandinavian countries. this fact illustrates the assessment of attitudes towards refugees in latvia. thus, the stability of tolerance is currently a challenge for latvia. we consider that a large percentage of non-citizens as well as the highest level of intolerance to sexual minorities among the baltic states are the main reasons in problematic promotion of tolerance and prevention of intolerance in latvia. latvia’s legislation is not completely in line with the ecri’s general policy recommendation no. 7 on combating racism and racial discrimination. law enforcement agencies lack special services that would help the victims of hate crimes. latvian officials and social activists do not adequately promote discourse against the racist, homo/transphobia hate speech. marginalization of the roma community persists, especially in terms of employment and the provision of public medical and educational services. there are manifestations of anti-semitism, particularly in the internet discourse. despite the small number of refugees admitted by latvia in recent years, there is a high level of intolerance towards asylum seekers. in our opinion, these problems are related to the political and legal culture of latvians which is still quite intolerant of diversity as well as they do not have sustainable neoliberal-democratic values, which the eu focuses on. countering intolerance remains an important component of the country's incomplete post-socialist democratization. 4. social anxiety and phobias on the intolerance basis in lithuania the implementation of the principle of tolerance in lithuania has a long tradition dating back to the time of the grand duchy of lithuania. for hundreds of years, lithuania has been a territory of coexistence and interaction of numerous peoples, cultures and religions. however, deep-rooted prejudices and new ethnic stereotypes, anxiety of immigration and new challenges that stimulate destructive assessments and actions which are intolerant of human dignity are now evident. the problem of intolerance took on a new tone after lithuania's accession to the eu, as the state was given new responsibilities to implement the eu policy, including the establishment of equality, non-discrimination, the principle of tolerance, etc. however, there are a number of different phobias (xenophobia, homophobia, migrant phobia, the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 198 romophobia, etc.) in the country even after almost two decades of the eu membership. although lithuania has enshrined the principle of tolerance in law, its content is not clearly defined which complicates investigating the cases of intolerance and bringing the perpetrators to justice. a survey commissioned by the ministry of social security and labor of the republic of lithuania showed that approximately 80% of the country's population describes itself as tolerant (ditkevičius, gorochovskis, 2015). however, the answers to the questionnaire cast doubts on such a high percentage. in particular, a significant number of respondents who identified themselves as “tolerant” indicated that they could not work with “others” and agreed that they were tolerant of certain issues only as long as it did not concern them personally. such responses indicate a latent intolerance in relationships with people of different ethnic, racial, sexual, and other identities. lithuanian public opinion has a fairly vivid and high intolerance of the roma people, sexual minorities, migrants and refugees. at the same time, the level of tolerance of lithuanians towards people of other races and nationalities is much higher than towards representatives of other religions (non-christian). this may indicate a strong religious conservatism of lithuanians which may lead to an increase in, for example, islamophobia. however, such effects require monitoring studies to confirm / refute this hypothesis. after the collapse of the ussr, lithuania chose a different approach to granting citizenship than latvia and estonia, therefore there is no group of non-citizens in the population (venkov, 2018). citizenship requirements in lithuania were the most liberal among the baltic states after independence. the reason is mostly explained by the relatively low level of immigration to lithuania from other parts of the ussr, as a result, the population was ethnically more homogeneous (budryte, 2005, p. 150). 14.7% of the population of lithuania consists of national minorities: poles (6.6%), russians (5.8%), belarusians (1.2%), etc. now there is no vivid intolerance between representatives of different nationalities in lithuania, but there are some manifestations of ethnic intolerance (janušauskienė, 2013, p. 428). in particular, the largest minority in lithuania is the polish one (over 200,000 people) and the debates over their rights exacerbate tensions between lithuania and poland. poland has repeatedly stated violations of the rights of its compatriots in lithuania5. in 2012, a single curriculum in the lithuanian language and the state exam were introduced and have become a challenge for students in schools where lessons are conducted in minority languages, including polish6. since then, a discourse on the reform of lithuanian education discriminates against children of 5 for example, the former president of poland lech wałęsa refused to accept one of lithuania’s most honorable awards, the grand cross of the order of vytautas the great, in protest against the position of lithuanian poles. first of all, poland criticizes the provisions of the new lithuanian law on education which intensifies learning of the lithuanian language in minority schools. the problem of intolerance towards the polish minority in lithuania is exacerbated primarily by polish radical political organizations. 6 in 2018, the legislation on education was amended: up to the 7th grade at least 50% of subjects are taught in lithuanian, in 79th grades 80%, in 10-12th grades 100%. nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 199 minority languages schools became relevant. the problem remains under the eu’s control. in particular, in 2019 the council of europe appealed again to the lithuanian authorities to adopt a comprehensive legal framework to prevent discrimination against students among national minorities. the european institutions drew attention to the need for lithuania to comply with national legislation with the framework convention on the use of minority languages in administrative bodies, commercial sign boards and topographic instructions, spelling of names and surnames in official documents. from poland’s perspective, in order to guarantee the rights of poles in lithuania, it is necessary to: 1) establish the bilingual names of settlements and streets / squares in areas where poles make up a third or more of the population; 2) legalize spelling the names of lithuanian poles in accordance with the polish tradition. it should be mentioned that there are polish-language schools in lithuania, a branch of the university of białystok with a polish language of teaching, as well as the study of polish philology and the training of polish language teachers are also possible. the problem of anti-semitism in lithuania deserves special attention. firstly, antisemitism is exhibited in the public events of right-wing radical political organizations. for instance, in 2015, the lithuanian nationalist youth union organized a march in kaunas and some of the participants had the swastika symbol on their clothes. the action took place near the historic site of the kaunas massacre where in 1941 several thousand jews were killed. lithuania has also reported vandalism of lithuanian jewish cemeteries and holocaust memorials. occasionally, anti-semitic essays appear in national newspapers. although negative stereotypes about jews are quite archaic in lithuanian society, they sometimes appear in different forms. domestic anti-semitism persists mainly at the level of lithuanian folklore. the surge of anti-semitism in lithuania, the threats of neo-nazis to the jewish community even led to the short-term closure of the only synagogue and headquarters of the lithuanian jewish community in vilnius in august 2019. this effect was caused by the actions of some political forces. in particular, the center-right conservative political party the homeland union lithuanian christian democrats (ts-lkd) is actively lobbying for the recognition as national heroes of individuals who are accused of anti-semitism and involvement in the holocaust. a part of lithuanian society perceives these historical figures as national heroes, while another one as nazi war criminals and collaborators. we mean first of all jonas noreika (in his honor a memorial plaque was installed on the building of the library of the wroblewski academy of sciences, but later it was dismantled) and kazys škirpa (in 1998, the alley in vilnius was named in his honor, later it was renamed the alley of tricolor). these events provoked an active debate in society and in the lithuanian seimas. it should be emphasized that the first jews settled in lithuania in the 12th century, but the 700-year history of lithuanian jews has only recently been integrated into the national education system. for a long time, the lithuanian education system did not pay proper attention to the lithuanian jewish history (beresniova, 2017, p. 54), but in recent years, textbooks on lithuanian history focus on this topic much more, especially on the the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 200 holocaust. for a while, the matter of the holocaust in lithuania was discussed primarily in narrow academic circles, while the general public was limited to it. anti-semitism has been repeatedly recorded in lithuanian media. such cases were considered by the lithuania ethics commission of journalists and publishers. almost all anti-semitism cases concerned the same media group “respublikos leidinių grupė”, but the commission did not confirm the incitement of anti-semitism for any case. in our perspective, effective prevention and counteract of new manifestations of anti-semitism and anti-zionism, especially in cyberspace, is a relevant objective for lithuania nowadays. unfortunately, lithuania lacks a single centralized institution that would respond to cases of anti-semitism. lithuanian judicial and law enforcement agencies often do not identify a certain illegal act as demonstration of anti-semitism, that is, they do not classify it as a crime committed on the grounds of hatred. intolerance in lithuania is also exhibited in romaphobia. the romani community is small; it is only about 3 thousand people (less than 0.1% of the population). lithuanian roma people are spread all around the country and the only place of their dense residence is the village of kirtimai near vilnius where more than 500 roma live (poviliuna, 2011, p. 4). in fact, this settlement vividly shows poverty and social isolation that are common for lithuanian roma people. lithuanian roma community faces significant accommodation issues. the european institutions have repeatedly drawn attention to the need to provide them with social housing as well as to overcome the prejudices of roma people among landlords (ecri conclusions, 2019, p. 5). at the initiative of vilnius city hall, “vilnius (kirtimai) roma tabor community social integration program for 2016-2019” was implemented. it should be highlighted that the project estimated at 700 thousand euros was discussed without the involvement of the lithuanian romani minority. this case is an example of pseudo-integration of roma without the involvement of the roma themselves (kiurė, 2017). in fact, the program was aimed primarily at providing roma with social housing, but the set order of priority in the right to accommodation caused dissatisfaction among the rest of the population and only exacerbated hate speech against the roma minority. we should note that during its independence lithuania has implemented several programs of roma integration, however, in the lives of the latter there have been minor changes. on the contrary, romaphobia rose in the lithuanian community. the full access of roma people to the lithuanian labor market is particularly problematic. migrant phobia is another problem of lithuania in the context of tolerance / intolerance. lithuania did not participate much when the eu faced a migration crisis in 2015. according to the eu quota, lithuania had to accept 1105 refugees (later the quota was revised to 1077 people). as of the beginning of 2020, lithuania accommodated only 490 people7, many of whom later left for other eu countries. the reason for this kind of attitude is that lithuanians have a firm stereotype that asylum seekers are primarily 7 lithuania intends to continue participation in the migrant transfer programs (till 2022). nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 201 economic migrants. lithuanians attribute the possible increase in crime and unemployment, aggravation of social problems, etc. to refugees. prejudice against them is growing, though the vast majority of lithuanians have not communicated with people from the middle east and africa affected by wars and civil conflicts. lithuanians seem to be characterized by a sense of fear of the unknown and this anxiety is manifested by asylum seekers from the middle east and africa. many lithuanian employers also have negative stereotypes about refugees. the issue is exacerbated because the lithuanian media do not pay enough attention to specific cases of refugees, that is, how successfully they integrate into the lithuanian community, whether it is easy for them to find understanding in the workplace and outside it, etc. we assume that the lack of knowledge and personal experience cause anxiety regarding refugees among lithuanians. neo-racism in lithuania aggravated beyond just skin color discrimination. it includes ethnicity, religion, etc. neo-racism is demonstrated via different means, for instance, the language of hatred, making labor ethnical matter, etc. it is promoted through actions of radical organizations as well as officials whose activity discriminates against certain social groups in education, health care, employment, etc. in lithuania, the victims of hate speech are primarily refugees, ethnic minorities and foreign citizens (responding to racism in lithuania, 2019). ultranationalist, clerical and other radical political organizations express insulting and unreasonable generalizations frequently. despite the fact that the far-right parties in lithuania do not have a large number of supporters, they actively promote hate speech and different types of inequalities. moreover, the lithuanian media are often guided by destructive stereotypes when they spread certain information. consequently, they promote negative images of certain minorities, refugees and others. currently, hate speech is incited in cyberspace, for example, within facebook groups, forums, where 90% of hate speech cases occur (bitiukova, 2011, p. 7). for now, the efforts of lithuania to solve the problem of neoracist, homo/ transphobic, etc. hate speech is not a comprehensive strategic vision for finding solutions, therefore they are not effective enough. among the post-soviet baltic states lithuania has the most conservative views of sexual minorities. consequently, it was repeatedly criticized by the eu institutions. considerable influence of the catholic church is one of the reasons for this attitude. there are small communities of sexual minorities only in the largest cities (vilnius, kaunas, klaipėda). lithuania was the last among the baltic states to abolish a criminal prosecution for the same-sex relationships (in 1993). lithuania's membership in the eu obliged it to adopt legislation (in 2005) that formally prohibits any types of discrimination, including sexual one. there is no legal recognition of the same-sex couples in both lithuania and latvia, that is, no registration of same-sex marriages or no civil same-sex partnerships (as in estonia). the public remains unchanged and does not support legalization of the samesex marriages, and the opposition of the heterosexual and homosexual couples is firmly established in the lithuanian conservative culture. the survey of eurobarometer (special eurobarometer 437, 2015) reported that only 24% of the respondents approved same-sex the compliance of the baltic states with the principle of tolerance as condition for the development of the united europe the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 202 marriages (lower percentage among the eu countries was only in latvia, romania and bulgaria). cases of direct or indirect hindrance of social or cultural events of the lgbtq community in their own or rented premises have been recorded. denial of rental or access to venues is related to their organization by sexual minorities. there are a number of other restrictions in lithuania, in particular, joint adoption or adoption by a second partner of a same-sex couple is not possible. although training on racist and homo / transphobic violence was conducted for the lithuanian law enforcement and judicial staff in 2012-2014 at the request of european institutions, progress has not been adequate. educational projects have not sufficiently changed the state's response to cases of hate speech and illegal actions based on hatred. even though national legislation of lithuania as well as international legal acts are aimed at preventing intolerance, the establishment of the principle of tolerance is highly problematic in the country. legal mechanisms for the protection of human / civil rights and liberties are not applied effectively; law enforcement and judicial bodies are not competent enough, especially in their response to illegal actions committed on the basis of hatred, the use of hate speech, etc.; lithuanian society is passive in the inadmissibility of intolerant processes; lithuanian culture is quite conservative and liberal democratic values are not sustainable and solid yet. lithuanians express anxiety, destructive stereotypes and unreasonable phobias towards asylum seekers and foreigners. the state is not firm in combating intolerance or promoting integration of the social excluded groups. lithuanian establishment of tolerance principle differs from other post-soviet baltic countries (estonia and latvia) in its distinct approach to citizenship as well as higher levels of homophobia. 5. conclusions in the post-soviet baltic countries issues related to tolerance / intolerance are similar. however, they differ in their volume due to national peculiarities that are connected with mechanisms of acquiring citizenship. existence of the problems at both institutional (country does not fulfil some of the eu guidelines aimed at promotion of the principle of tolerance) and value levels (population does not accept completely liberal-democratic values that the eu advocates) are common features of all the baltic states. compared to the young democracies of central and eastern europe (especially, the v4 countries), estonia, latvia and lithuania do not have uprising tendencies of intolerance, but baltic state institutions do not provide effective or consistent strategies that enhance the principle of tolerance. it results in stagnation and reduction of counteraction of ethnonational intolerance, prevention of social anxiety and fears (romaphobia, islamophobia, migrant phobia, etc.), the spread of hate speech. though, at the institutional level the baltic countries realize that prevention and counteraction of intolerance is a guarantee for their further practice. current destructive processes are determined by a number of reasons, nataliya khoma and oleksii kokoriev the age of human rights journal, 16 (june 2021) pp. 186-206 issn: 2340-9592 doi: 10.17561/tahrj.v16.6038 203 that is, political culture of development in the eu, not all the conditions required by copenhagen criteria are followed in population, lack in the activity of liberal-democratic part of civil society, absence of political freedom among the leading state bodies, etc. they take place due to an increase of new populist, radical, conservative clerical and other political entities in the context of the socio-economic problems in the world. thus, this implies the worldwide deterioration of quality of democracy. in our perspective, intolerance solving activities of state institutions are related to features of political culture of the post-soviet democracies and population’s values. the baltic communities combat intolerance passively. their inactivity is impacted by the dominant conservatism of political legal culture and instability of liberal democratic values among the citizens. the baltic political culture demonstrates intolerance towards diversity, while the liberal-democratic values that the eu endorses remain unsustainable. we consider that particularly the change of values is the basis for the establishment of the principle of tolerance in the baltic states. in addition to the axiological issues, activity of the baltic political bodies is not effective enough due to the regulatory gaps as well as discrepancy between the national and the eu legislation systems. states do not implement some of the eu guidelines that are aimed at prevention and reduction of intolerant destructive processes. baltic state institutions are not consistent in combating intolerance or in the integration of the stigmatized groups. inadequate intolerance counteractions at the institutional level are exemplified by the fact that a great number of people that acquired the status of refugees or asylum seekers in the baltic countries depart to other eu countries. another acute issue is that law enforcement and judicial bodies are not competent enough in their response to illegal actions committed on the basis of hatred, the use of hate speech, etc. at both institutional and value levels, the “young” baltic democracies’ problems include social phobias, intolerance towards sexual minorities, xenophobia, increase of neoracist, homo/transphobic hate speech, etc. as well as state disability to prevent and combat them effectively. we associate the possible mitigation and further solution of the current set of intolerance issues in the baltic countries with the prospect of changes at value level, liberalization of the citizens’ political culture while intensifying institutional transformations in line with the eu 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23rd 2020 accepted: december 1st 2020 https://www.satv.tiesa.gov.lv/wp-content/uploads/2019/12/2019-33-01_spriedums.pdf https://www.satv.tiesa.gov.lv/wp-content/uploads/2019/12/2019-33-01_spriedums.pdf https://www.humanrightsestonia.ee/en/survey-of-new-immigrants-to-estonia-2016/ https://www.humanrightsestonia.ee/en/survey-of-new-immigrants-to-estonia-2016/ https://www.statelessness.eu/blog/not-just-simple-twist-fate-statelessness-lithuania-and-latvia https://www.statelessness.eu/blog/not-just-simple-twist-fate-statelessness-lithuania-and-latvia https://doi.org/10.1177/0165025407081480 https://doi.org/10.1177/0165025407081480 https://www.riigiteataja.ee/akt/126042017009 https://www.riigiteataja.ee/akt/126042017009 the compliance of the baltic states with the principle of tolerance as condition for the developmen abstract 1. introduction 2. the compliance of estonia with the principle of tolerance as the condition for progress 3. tolerance vs intolerance: latvia’s case as an example of value and institutional ambivalence 4. social anxiety and phobias on the intolerance basis in lithuania 5. conclusions references exploring the use of the concept of human dignity in disability human rights law: from the crpd to ecthr the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 27 exploring the use of the concept of human dignity in disability human rights law: from the crpd to ecthr elif çelik1 abstract: the un convention on the rights of persons with disabilities (crpd) accommodates the concept of human dignity more fully than does any other human rights treaty. the role and interpretation of dignity is thus particularly interesting from the perspective of disability human rights and case law. this study examines the role and significance of the concept of dignity in relation to the human rights disability discourse and jurisdiction through the guidance and impact of the crpd. it examines the currently available jurisprudence of the crpd committee and the european court of human rights (ecthr) in light of the crpd, seeking to identify the rights that are particularly related to the concept of dignity through the perspective of disability and to identify the requirements of the respect for dignity for persons with disabilities. while accepting the limitations of the sources in this examination due to the recent history of the crpd, the study nevertheless locates some points where human dignity has particular relevance to the realisation of the rights protected in the crpd. keywords: un convention on the rights of persons with disabilities (crpd), human dignity, crpd committee, european court of human rights (ecthr), human rights, european convention on human rights (echr). summary: 1. introduction. 2. human dignity as accommodated in the crpd. 3. human dignity in crpd case law. 3.1 in relation to freedom from torture, inhuman and degrading treatment and from exploitation, violence and abuse. 3.2 in relation to personal integrity. 3.3 in relation to accessibility. 4. the role of human dignity in post-crpd ecthr case law. 4.1 in relation to prohibition of torture, inhuman and degrading treatment. 4.2 in relation to the right to respect for private and family life. 4.3 in relation to disability-based discrimination and the right to education. 4.4 in relation to disability hate speech. 4.5 in relation to more complex cases: right to liberty v right to life. 5. conclusion. 1. introduction among the prominent contemporary notions in the human rights discourse is that of human dignity. there are now quite a number of publications on the philosophical, historical, ethical and legal dimensions of this concept, both from complimentary and critical perspectives.2 thus, notwithstanding the multiple ideas on the meaning and 1 assistant professor of human rights and public law, faculty of law, eskisehir osmangazi university, turkey (elif.celik@ogu.edu.tr). all websites cited in this article were accessed on 15 july 2021. 2 see e.g., mccrudden (2008), ‘human dignity and judicial interpretation of human rights’, european journal of international law, 19(4); dupre (2015), the age of dignity: human rights and constitutionalism in europe; moyn (2014), ‘the secret history of constitutional dignity’, yale human rights and development journal, 17(1); kateb (2011) human dignity ; rosen (2012) dignity its history and meanings. mailto:elif.celik@ogu.edu.tr exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 28 implications of the idea of human dignity,3 international human rights documents afford it considerable weight. indeed, there seems to be a consensus that the ethical idea of human rights itself derives its justification through this concept (mccrudden, 2008, p. 677). tracing the history of the concept of human dignity demonstrates that while various usages and meanings have been employed (rosen, 2012), references to the idea in relation to legal order only appeared in the first half of the twentieth century, through international law treaties and constitutions (moyn, 2014, p. 40). in terms of human rights, the idea of human dignity owes its importance to the universal declaration of human rights (udhr). thus, it is reasonable to assert that the contemporary concept was introduced through the language and codification of international human rights (mccrudden, 2018, p. 662). the declaration not only emphasises human dignity as an innate feature of every human being in the very first clause of its preamble and first sentence of its first article (‘purpose’) but also refers to it in relation to socio-economic rights, in articles 22 and 23 (on ‘respect for privacy’ and for ‘home and family’). as it appears in the udhr, therefore, dignity not only appears to stress the innate worth of human beings, operating thus as a reflection of an inherent value, but also stands as a threshold below which humankind should not fall. since the declaration, the concept of dignity has been repeated at the core of un human rights treaties and other regional texts. the un convention on the rights of persons with disabilities (crpd) is the most recent international tool to emphasise human dignity, where it is more pronounced than ever. following the devoted advocacy of disability rights groups and activists worldwide, the crpd was adopted by the general assembly in 2006, entered into force in 2008 and soon became the most rapidly welcomed human rights treaty (degener, 2017, p. 152). in the last decade, scholars have not only indicated the innovative aspects of the convention, but also stressed the paradigm shift it offers by replacing the old charityor medical-based model with a human rights one and noting how it tackles discrimination through key concepts (such as ‘reasonable accommodation’), how it reconceptualises and guarantees the legal personhood and capacity of persons with disabilities and how it captures a holistic approach to human rights.4 as a result, academic concern about the crpd may now be said to have gone beyond promotion of the idea and have started to question its impact and interpretation in regional and national contexts. rather than what crpd is or ought to be, the question asked currently seems to be about more what it does (waddington and lawson, 2018, p. 5). motivated by the role of human dignity in the overall rights language and in disability human rights struggle, this study looks at the role and significance of the 3 a useful review of the debates can be found in mccrudden (ed.) (2013), understanding human dignity, pp. 1-58. 4 see lawson (2007), ‘the united nations convention on the rights of persons with disabilities: new era or false dawn’ syracuse journal of international law and commerce, 34; quinn and kerslake (2012),‘restoring the ‘human’ in ‘ human rights’: personhood and doctrinal innovation in the un disability convention’ in douzinas and gearty (eds.), the cambridge companion to human rights law; megret (2008) ‘the disabilities convention: towards a holistic concept of rights’ the international journal of human rights,12. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 29 concept in relation to the disability human rights discourse and jurisdiction as guided by the crpd. the importance of the concept in this context was already evident in the travaux préparatoires of the convention since the word ‘dignity’ was included in the proposed title of the convention and the ad-hoc committee spent considerable time until the last sessions deciding whether it should remain in the title or be placed elsewhere in the text (kakoullis and ikehara, 2018, pp. 42-44).5 because the idea as assumed appears in the preamble and various articles of the crpd, one may wonder how it finds meaning in practice. luban (2015, p. 275) suggests that rather than relying on an already defined philosophical theory on dignity, a human rights pragmatic should reverse the order of explanation by clarifying the meaning of human dignity through human rights practice. parallel to this suggestion, the exploration of dignity in disability rights in this study goes beyond any ethical justification of or moral reasoning for the hard-won rights of persons with disabilities. dignity in this intrinsic sense has already played a ‘foundational’ or ‘debate ending’ role – as it did for the overall idea of human rights. thus, the emphasis here is on the actual role and potential function of human dignity for disability human rights. this is applied through a focus on the language of the crpd, on the crpd committee views regarding individual complaints and on post-crpd european court of human rights (ecthr) disability-related case law. this study does not limit itself to just the prevalence of human dignity in case law but further links the role of the concept in those decisions to the overall aim of the crpd. it is assumed that since we are guided by the primary goal and general principles of the crpd concerning the potential interpretation of dignity, the spirit of the convention should be the main guideline in assessing potential use and misuse of the concept. an integrated approach to human rights is favoured in choosing the two protection mechanisms.6 regarded as a quasi-legal body, the crpd committee is the primary agent responsible for the implementation of the convention. this body has developed the most recent standards concerning the rights of people with disabilities (brems and desment, 2017, p. 22). the universal characteristic of the rights that the convention upholds is, therefore, best captured in the committee’s comments, views and decisions. furthermore, the committee has thus far mostly consisted of actors and advocates of the crpd and of persons themselves with disabilities (guernsey, 2018, p. 1030). the motto ‘nothing about us without us’ is also upheld through the implementation of the convention. it is assumed that the nature of the committee in this regard plays a particular role in the interpretation and implementation of the concept of dignity. with respect to the selection of the post-crpd ecthr cases in this review, there is a practical concern. the history of the crpd spans little more than a decade, so its 5 the concept appeared in the title of the draft convention until the seventh session of the drafting process. see un enable, ‘daily summary of discussion at the seventh session 31 january 2006’ (31 january 2006). at www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm 6 for this view see brems (2014) ‘should pluriform human rights become one? exploring the benefits of human rights integration’, european journal of human rights, 4. www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 30 interpretation and implications in national jurisdictions remain quite limited. the council of europe (coe), on the other hand, as a regional organisation with the protection of human rights as one of its founding purposes, not only showed significant willingness in the negotiation process of the crpd but has also adopted various disability action initiatives (favalli, 2018, p. 517). scholars have also praised the contributions of the european committee on social rights in terms of disability human rights enhancement; in fact, it has been described as more advanced than the ecthr in this regard (lawson, 2009, pp. 90-91). the crpd was ratified by 46 of the 47 coe member states, which are also all required to comply with the european convention on human rights (echr). one could therefore expect the significance of the crpd as an international human rights tool to be much more visible in the ecthr case law than in national jurisdictions and other regional protection mechanisms.7 this assumption has been affirmed by recent studies arguing that the echr and crpd are strictly interconnected living instruments and that ecthr protection has been advanced by the crpd (favalli, 2018, p. 522) also, for those coe member states that have ratified the convention but not the optional protocol of the crpd, the rulings of the ecthr are the only legally binding international remedy in terms of disability human rights, and, moreover, the presence of the notion human dignity is much more visible in ecthr jurisdictions. in fact, the court has several times announced that the very essence of the convention is to secure respect for human dignity.8 thus, the interplay between the normative standard-setting character of the crpd and the judicial character of the ecthr should facilitate the identification of a practical definition through extraction of the legal requirements of the concept of dignity through the lens of persons with disabilities. 2. human dignity as accommodated in the crpd what it is that the respect for human dignity entitles from the perspective of persons with disabilities cannot be fully addressed within the limits of this study, but an outline, at least, should be offered. this requires various perspectives, given the complex definition of disability. as basser (2011, p. 21) has noted, as we understand more about the nature of the differences experienced by persons with disabilities, so do we develop a better understanding of the meaning of human dignity. among the approaches to the context and content of dignity in the philosophical and legal literature, we can identify dignity as status (waldron, 2012), as the right to have rights (feinberg, 1980), as autonomy (o’mahony, 2012) and as capabilities (nussbaum, 2006). relatedly, in addressing justice for disabled persons, barclay (2019, p. 19) has suggested applying dignity as a status approach to disability, which means that every member of the society enjoys equal status and respect in terms both of distribution and recognition. others have indicated a need to approach 7 because the coe lacks any specific treaty on the rights of persons with disabilities, the crpd has become the main instrument for human rights interpretation regarding this group. dignity is specifically protected in one of the coe treaties (treaty 164), with regard to biomedicine. at https://rm.coe.int/168007cf98 8 tyrer v uk is the most often referred case as for the first use of human dignity in ecthr case law. see costa, ‘human dignity in the jurisprudence of the european court of human rights’ in mccrudden (ed.) understanding human dignity (2013), p. 395. https://rm.coe.int/168007cf98 elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 31 the moral agent and her dignity by moving away from a conventional understanding of capacity (de asis, 2009, p. 4) or by considering other dimensions of the moral subject, such as vulnerability (celik, 2017). of course, the actual acknowledgement and respect for dignity from the perspective of disability and justice have varied through the long history and ongoing practices of segregation, poverty, discrimination, non-recognition, civic death and humiliation. here, we pragmatically draw from the spirit and text of the cpdr, what it aims to achieve and how it accommodates dignity, along with the interpretations of this in ecthr case history. regarding the human rights protection of dignity, clapham (2006, p. 538) has listed the following needs: the prohibition of all types of inhuman treatment, humiliation, or degradation by one person over another; the assurance of the possibility for individual choice and the conditions for ‘each individual’s self-fulfilment’, autonomy, or self-realization; the recognition that the protection of group identity and culture may be essential for the protection of personal dignity; and the creation of the necessary conditions for each individual to have their essential needs satisfied. thus, the application of dignity in human rights law may be in the form of but not strictly limited to dignity as a respect for human worth and non-humiliation, as autonomy and self-realisation, as recognition and as equality. clapham (2006, p. 538) also draws attention to an important feature in his formulation, noting that while the first item in the list might concern direct abuse by the state, the rest also involve non-state actors, such as the denial of opportunities for self-fulfilment or participation in social life. this seems particularly important when addressing the crpd, which carries a clear reference to the state’s obligations to ensure that private actors comply with the standards of the convention on issues of accessibility, access to information, health and employment.9 another essential point regarding the protection of dignity concerns the creation of necessary conditions and meeting essential needs. o’cinneide (2009, p. 164) has underlined that the crpd adopts an approach whereby the state is expected to play a serious part in the creation of the social conditions that are necessary for individuals to be treated with dignity. the crpd departs similarly from other human rights treaties in explicitly pronouncing dignity. in its preamble, in the first paragraph, it does this by recalling the principles in the un charter and udhr. in this sense, ‘dignity’ refers to the inherent worth of all human beings, to an intrinsic feature that is shared equally. quinn and degener (2002, p. 14) affirmed this when stating that ‘people are to be valued not just because they are economically or otherwise useful but because of their inherent self-worth’, noting this to be particularly important in the human rights model of disability. other scholars have also acknowledged that the concept of dignity played a crucial role in the paradigm shift 9 convention on the rights of persons with disabilities (adopted 13 december 2006, entered into force 3 may 2008) a/res/61/106 (crpd), articles 9(2), 21(c), 25(d) and 27(1). exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 32 offered by the convention in terms of conceptualising disability and moving away from the old medical and charity models (kakoullis and ikehara, 2018, p. 51). it could thus be averred that the least contested role of human dignity in human rights law, parallel to the inherent worth argument, is its foundational role. the inherent dignity argument therefore provides an answer to why human beings have human rights, yet without its being the equivalent of human rights. as mccrudden (2008, p. 681) notes, there are thicker and thinner versions of this approach, where the former not only regard human dignity as a unique value (on which human rights are built) but also applies it as an interpretive principle (to identify a catalogue of rights). some of these rights, mccrudden observes, are best interpreted through the lens of dignity. it is this thicker version that the present study aims at. in this respect, one might claim that dignity also appears in the preamble of the crpd through the notion of non-discrimination.10 fredman (2011, p. 25) notes the language of equality and the role it plays in the interpretation of dignity. while dignity is an intuitively appealing concept, she explains, it is also open to various interpretations and thus should be ‘considered as one facet of a multidimensional notion of equality, which also accommodates disadvantage, acceptance of difference and participation’. the relevant paragraph of the preamble here also stresses that ‘discrimination on the basis of disability is a violation of the principle inherent human dignity’.11 in the first article of the convention, where its purpose is defined, dignity appears as an ideal to be upheld. the article notes that one of the purposes of the convention is to promote respect for the inherent dignity of all persons with disabilities. interesting debates occurred in the drafting process concerning the introduction of the concept into this article. caution regarding the respect for dignity was particularly voiced by liechtenstein, emphasising that rights and dignity were different concepts, and that while the states could provide for rights, they could only give respect to dignity, which is inherent to everyone (kakoullis and ikehara, 2018, p. 43). a similar concern is reflected in article 8, which addresses the awareness-raising obligation of the states parties and mentions the fostering of ‘respect for the rights and dignity of persons with disabilities’. although the acknowledgement of inherent dignity finds protection through this ‘respect’, it is also arguable that, through these articles, we come to an understanding that respect for dignity can be achieved through the empowerment of rights. therefore, one might take a further step and argue that a denial of rights listed in the convention is also a denial of the human dignity of persons with disabilities. thus, even though it does not mention dignity by name, article 12 of the crpd, which guarantees the right to legal recognition before the law, is closely related to the concept since one dimension of dignity concerns equal recognition and legal personhood (as opposed to civil death). after the preamble and first article, the next appearance of dignity in the crpd comes in article 3, where the general principles of the convention are listed. here, the 10 crpd, preamble, paras 3, 4, 8 and 16 (with 4 and 16 referring to racial, sexual and other forms of discrimination). 11 para 16. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 33 respect for dignity appears as the primary principle, along with some other key notions that the convention relies on, namely, individual autonomy detailed as freedom of choice and independence. although there are difficulties with viewing dignity merely as an equivalent of any of these abstract liberal ideals, it appears that the principles listed in this first paragraph must find a way to co-exist and that respect for dignity is somehow established in relation to them. there is obviously a background for the presence of such liberal notions in the convention; the earlier models of disability, including the medical and charity, had long been criticised for not considering the autonomy and independence of disabled persons and their freedom of choice. the prevalence of the notions of care and dependence in those earlier models (morris, 2001, p. 1) was thus minimised in the crpd and replaced with the language of autonomy and empowerment. even though such liberal ideals are raised as a subject of debate in critical literature and feminist ethics, the question in terms of people with disabilities is rather about their denial than their mere existence. thus, when article 16 of the convention is read in this light, the particularly fragile position of dignity becomes more evident. accordingly, the article addresses dignity in its fourth paragraph when providing for rehabilitation and recovery services for disabled persons as a ‘freedom from exploitation, abuse and violence’. the convention notes here that ‘such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account genderand age-specific needs’.12 an interesting feature of dignity is present in article 24 of the convention concerning the right to education. while non-discrimination and equal access to education are the core principles of the article, it is noted that, through inclusive education, states parties shall provide ‘the full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity’.13 while such concerns are applicable to the right to education generally, it is particularly pertinent to the purpose of education that the development aim of a sense of dignity and self-worth should be mentioned. thus, the convention directs that persons with disabilities should be equipped with a sense of self-worth through education, and states parties must further ensure that the purpose of the education is accordance with the fact that persons with disabilities are not a subject of economic concern of usefulness or any other pragmatic, but are treated as of equal worth (degener, 2016, p. 3). the right to education is fixed to an ideal (dignity as right), not just utilitarian means. finally, we may note the term ‘dignity’ in article 25 concerning the right to health. dignity in this article is pronounced with respect to autonomy.14 a commentary on dignity is not very prominent in the crpd committee general comments. in this sense, general comment 1 concerning article 12 of the convention (on equal recognition before law) notes that the ‘recognition of legal capacity restores autonomy and respects the human dignity of the person’.15 it also notes that the ‘need for 12 article 16(4). 13 article 24(1)(a). 14 article 25(c). 15 crpd committee, ‘general comment no 1’ (crpd/c/gc/1), para 33. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 34 support or reasonable accommodation’ in facilitating decision-making is not an excuse for questioning the person’s legal capacity.16 this interpretation of the committee indicates that even though the relevant article does not pronounce dignity, it does, in fact, play a role in building and securing it. general comment 2 (on accessibility) refers to the ‘equal access to all goods, products and services’ with respect to dignity.17 furthermore, consideration of the ‘full account of… dignity and diversity’ is also mentioned in regard to the principle of universal design (for products, services, etc.).18 one notable contribution is also evident through the linkage made between reasonable accommodation and dignity, autonomy and the individual choices of the individual.19 finally, it is general comment 6 (on non-discrimination and equality) that perhaps makes the clearest statement on dignity among the comments. there, the committee assigns dignity an important and innovative role in defining a ‘new model of equality’, which is named ‘inclusive equality’ and spelled out as a ‘recognition dimension’ aiming at a freedom from ‘stigma, stereotyping, prejudice and violence’ as well as to ‘recognize the dignity of human beings and their intersectionality’.20 when dignity is mentioned in the convention text and general comments, it tends to be accompanied by a stress on the principle of autonomy. accordingly, it is most often pronounced along with the related, key concepts of accessibility and equal access (with specific emphasis on reasonable accommodation and independent living). against this background, the question now to be addressed is that of how dignity is practically applied in crpd-related jurisdictions and whether the committee views demonstrate an understanding of dignity that reaches beyond a view of dignity as inherent (i.e., as generally pertaining to all persons qua persons). 3. human dignity in crpd case law like most un human rights treaties, the crpd has created a monitoring mechanism through its optional protocol. this monitoring mechanism enables the committee to receive individual and group complaints. the convention further encourages the states parties to actively involve persons with disabilities in their national nominations for the committee membership and thus to secure their presence in the monitoring body.21 this ideal has generally been reflected.22 while the general comments drafted by the committee have been recognised, the committee’s views concerning individual communications are 16 ibid. 17 crpd/c/gc/2, para 13. 18 ibid, para 15. 19 ibid, para 26. 20 crpd/c/gc/6, para 11(b). 21 stein and lord note that the drafters of the crpd did not consider the idea of an ‘enhanced vetting process’ or a review procedure regarding the states parties nominations in order to ensure that the members of the committee had sufficient expertise in human rights and disability law and policy. in fact, the committee had indeed mostly consisted of members with disabilities, but they were not at the time mostly experts in human rights or jurists. stein and lord (2010), ‘monitoring the convention on the rights of persons with disabilities: innovation, lost opportunities and the future potential’ human rights quarterly, 32. 22 for current members of the committee, see www.ohchr.org/en/hrbodies/crpd/pages/membership.aspx www.ohchr.org/en/hrbodies/crpd/pages/membership.aspx elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 35 still only beginning to receive attention and become the subject of critical assessment (see broderick and ferri, 2019). the limited reference to committee case law is not surprising given the fact that the earliest individual communication to the committee only dates back a decade, and it has dealt with just a small number of communications since then. as of mid-2021, the committee has received and processed 34 individual complaints, of which an adoption of views has been reached for a total of only 21.23 the word ‘dignity’ is employed in the views adopted by the committee in six of these cases, including the arguments brought by the applicants.24 given this limitation of the available case law, it is difficult to trace the interpretation or elucidation of any specific notion through the committee’s views. nevertheless, this study takes an initial step toward addressing this question, which might be followed by further, in-depth analysis in the future. the six cases referred to are placed in five categories referring to general principles and relate to four articles on inhuman treatment, on exploitation, violence and abuse, on integrity and on equal access to goods and services (articles 15, 16, 17, 21, respectively). focussing on dignity, it is difficult to link each case to one issue, since the committee usually finds multiple breaches that refer to more than one article. here, therefore, the six cases involving the concept of dignity have been grouped into three categories. 3.1. in relation to freedom from torture, inhuman and degrading treatment and from exploitation, violence and abuse freedom from torture, inhuman and degrading treatment cases are typically those in which a reference to human dignity is most visible in the overall jurisdictions. the right to these freedoms is enshrined in crpd’s article 15 with a particular emphasis on the freedom from being subject to medical and scientific experimentation without consent.25 as noted, however, two other articles in the convention safeguard the freedom from torture for persons with disabilities: article 16, concerning freedom from exploitation, violence and abuse, and article 17, protecting the integrity of the person (karsay and lewis, 2012, p. 818). a quite recent (2016) reference to the concept of human dignity in relation to these articles is found in al adam v saudi arabia.26 this complaint concerned the worsening of the applicant’s mild hearing impairment due to the torture he was subjected to by the security forces during his detention. whilst the committee’s primary findings were in 23 this number was reached through the ohchr jurisprudence database. <https://juris.ohchr.org/search/results> 24 all cases were considered when searching for the application of dignity through this protection mechanism, regardless of their admissibility or outcome. the cases located are as follows: in reference to general principles of the convention: gröninger v germany; in reference to inhuman treatment by the applicant and the committee: x v argentina; in reference to right to integrity by the author and the committee: x v tanzania and y v tanzania; in reference to equal access to goods and services by the committee: bacher v austria; in reference to exploitation violence and abuse by the committee: al adam v saudi arabia. 25 article 15(1). 26 al adam v saudi arabia (038/2016), adoption of views crpd/c/20/d/38/2016. https://juris.ohchr.org/search/results exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 36 favour of a breach of article 13 of the convention, which concerns access to justice, this article was found to be violated both alone and in conjunction with articles 15 and 16, as well as in relation to the general obligations (article 4) and the right to health (article 25). in addressing the situation of persons deprived of their liberties, the committee referred to the un standard minimum rules for the treatment of prisoners27 and noted that the author’s treatment during detention violated his right to be treated with humanity and with respect for the inherent dignity of the human person and amounted to violence and abuse, in violation of article 16 of the convention. it would be an over-interpretation to claim that the dignity argument, in this case, reflects any particularity in terms of persons with disabilities, but the report drafted by the special rapporteur of the human rights council on torture and other forms of illtreatment does highlight the specific relationship between torture and disability, noting that persons with disabilities in institutions ‘are frequently, subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence’.28 lack of reasonable accommodation, the report noted, increases the risk of being exposed to such treatments. the concluding observations of the committee stated further that the torture and ill-treatment of persons with disabilities might include continuous practices, such as forcible medication and administration of neuroleptics, and poor material conditions in psychiatric institutions.29 they also confirmed that states parties should ensure that measures for the living conditions of persons with disabilities in institutions and facilities – such as reception and detention centres – respect the dignity of persons with disabilities.30 in this respect, the specific role of dignity in thinking what counts as inhuman treatment from the perspective of persons with disabilities is more apparent in the case of x v argentina (2012). this case concerns the issues of the dismissal of home arrest request, conditions of detention and access to adequate medical care and rehabilitation of disabled persons during detention. the applicant referred to dignity in line with inhuman treatment due to the conditions of detention and health care. the committee accepted that an absence of a suitable infrastructure for persons with disabilities and the substandard conditions of detention gave affront to the applicant’s dignity and constituted inhuman treatment.31 although referring to the role of dignity in the context of accessibility and inhuman treatment, the committee did not find a violation of article 15 concerning inhuman treatment. the violation determined was based on articles 14(2), in relation to liberty and security of the person, article 17, on integrity, and article 9(1), on accessibility.32 27 at https://digitallibrary.un.org/record/57952?ln=en 28 nowak, report transmitted by note of the secretary-general, u.n. doc. a/63/175 (july 28, 2008). 29 un committee on the rights of persons with disabilities, concluding observations of the committee: peru, 9 may 2012, crpd/c/per/co/1, para 30. 30 concluding observations of greece, crpd/c/grc/co/1, para 25. 31 x v argentina, crpd /c/11/d/8/2012, para 8.4. 32 even though the violation concerned the relation between dignity and accessibility, it is worth recalling what lawson (2012, p. 851) noted concerning reasonable accommodation on the individualised dimension of accessibility, in respect to the detention conditions of persons with disabilities; in certain cases, ‘the https://digitallibrary.un.org/record/57952?ln=en elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 37 3.2. in relation to personal integrity the crpd accommodates a distinct right as the right to integrity in its article 17. bruce (2014, p. 185) observed that the drafting target of this article mainly concerned the case of non-consensual medical intervention. since not all types of interventions were protected under ‘torture or cruel, inhuman or degrading treatment or punishment’, she noted, it was deemed necessary to introduce the single sentence comprising article 17: ‘every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’.33 in this vein, y v tanzania (2017) concerns inhuman treatment, torture and discrimination based on disability in the case of an albino applicant.34 in this case, the committee referred to human dignity in line with article 16 (on the freedom from exploitation, violence and abuse) but also with article 17 (on the right to integrity).35 in reference to the latter, the committee had earlier noted the following on the meaning of being a person: it is linked to the idea of human dignity and each person’s physical and mental space should be protected; it includes the prohibition of physical and mental torture, inhuman and degrading treatment and punishment, as well as a wide range of less grave forms of interference with a person’s body and mind.36 this comment had been made in an earlier communication, x v tanzania (2014), where the applicant was also an albino. the committee saw fit to confirm the admissibility of this case on the basis of discrimination due to albinism, thus highlighting the cultural context of the crpd notion of disability.37 through this comment, moreover, the committee portrayed the close link between dignity and personal integrity, covering a broad range of interferences that were not specified in the crpd article. this case also concerned articles 5, 15 and 17 in conjunction with the general principles of the convention. level of suffering endured by the disabled person as a result of the failure to provide them with reasonable accommodation will reach the minimum level of severity required to constitute a breach of substantive rights to be free from ill-treatment’. a lack of access, that is, may constitute ill-treatment, which involves a loss of dignity. lawson (2012) ‘disability equality, reasonable accommodation and the avoidance of ill-treatment in places of detention: the role of supranational monitoring and inspection bodies’, the international journal of human rights, 16(6). 33 the right to integrity is also found in the eu charter of fundamental rights under the general theme of human dignity. the charter provides a more detailed account of the right and lists its relation to medicine and biology. 34 see also the report of the independent expert on the enjoyment of human rights by persons with albinism; un doc a/72/131 (14 july 2017) and un doc a/hrc/res/28/6 (10 april 2015). 35 y v tanzania (023/2014), adoption of views crpd/ c/20/d/23/2014. 36 x v tanzania (22/2014), views crpd/c/18/d/22/2014, para 8.7. 37 specifically, albinism carries a high vulnerability to skin cancer, an impairment that was considered in ‘interaction’ with ‘attitudinal and environmental barriers’ following the crpd preamble on taking into account the ‘diversity of people with disabilities’. ibid, para 7.6. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 38 3.3. in relation to accessibility as pointed out by basser (2011, p. 21), one could assume the principle of dignity to entail that persons with disabilities are not humiliated by any incapacities regarding access. accordingly, an awareness of the diverse needs of disabled persons may indicate that which does indeed humiliate and undermine dignity. bacher v austria case is worthy of note in this sense, not only in terms of the reference to dignity but also because the remarks reveal the position of the committee concerning the application of the convention extending to relations between individuals. in this case, the applicant, who was represented by his sister, was a person with autism and down syndrome and had occasional need of a wheelchair. the land dispute between the two parties (the applicant’s family and the neighbour), had resulted in the destruction of a wooden roof that enabled the applicant to access to his home and engage in outside activities (it had served to protect the applicant and his caregiver’s safety and facilitate accessibility to their home in bad weather conditions). the applicant claimed that articles concerning the general principles (3), accessibility (9) and liberty and security of the person (14) had been violated and, in relation to the general principles of the convention, raised the concept of dignity.38 in its decision, the committee referred to dignity in relation to the right to accessibility. relying on general comment 2, the committee noted that ‘persons with disabilities should have equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity’.39 this is also a useful case to demonstrate the tension between the liberal right to property and other human rights with a particular reference to disability. the comments of the committee reflect the judgement that the states parties are not only under an obligation to eliminate discrimination by any person or private enterprise but should also, where appropriate, interpret private property conflicts arising from contracts between individuals through the lens of the crpd. after over a decade, one might expect to find a deeper elucidation of the concept of human dignity in the committee’s comments and views. apart from the views demonstrated in the study, the concept dignity is generally invoked in only a weak manner and when recalling relevant articles of the convention in which dignity was part of the article text. in those cases where dignity has been specifically cited or invoked, it was mostly done so by the applicant and just repeated by the committee. according to these few cases, dignity seems to be employed mostly in relation to the articles concerning freedom from torture and inhumane treatment and from violence and abuse and the right to integrity. the latter, in this sense, has particular importance for persons with disabilities because it targets not only the elimination of state interventions but also the actions of other parties, including 38 bacher v austria (026/2014), views crpd/c/19/d/26/2014, para 3.3. 39 ibid., para 9.6. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 39 legal guardians.40 general comment 2, on the other hand, appears to assist the committee in addressing dignity for cases referring to accessibility.41 the entitlements to the respect for dignity in the various concluding observations also seem to appear under certain contexts. one of them involves the states party obligations concerning the general awareness-raising duty with respect to human rights and the worth of persons with disabilities. for some countries, this could mean taking specific steps, such as the elimination of negative terminology and promotion of positive messages related to persons with disabilities;42 for others, meanwhile, the committee draws attention to such awareness in respect to informative and dignifying portraits of persons with different disabilities.43 the requirement to review legislation in order to secure equal legal recognition and eliminate substituted decision-making is another context in which the committee has referred to dignity.44 reference to dignifying the practices in detention conditions of persons with disabilities is also evident in some remarks,45 as is the medical examination of alleged torture victims.46 last but not least, respect for the dignity of girls and women with disabilities appears in the concluding observations of some countries.47 even though there have been no significant attempts to reconceptualise or formulise the concept of dignity in the convention text, general comments or concluding observations or through the communicated views, closer inspection reveals dignity as typically entering the picture in relation to certain rights as indicated as well as, one would think, various potential topics that are yet to be addressed by the committee. because the concept of dignity plays a role as a general principle, and because there is no specific article in the crpd text on the ‘right to dignity’, even though it is pronounced frequently, the meaning of the term remains subject to interpretation. it is to be hoped that the committee, through the further application of case law over time, will extract the requirements of the principle more precisely. 4. the role of human dignity in post-crpd ecthr case law departing from the crpd committee, another option in investigating the concept of dignity in relation to the human rights disability discourse and jurisdiction is to look at the case law of the strasbourg court. the echr does not contain any reference 40 the concluding observations of the committee in this sense shows that in many countries, practices such as the forced sterilisations and involuntary treatments by the consent of the legal guardians are indeed contrary to the article concerning the right to integrity. see fennell (2018), ‘protection against torture and cruel or inhuman or degrading treatment of punishment’ in bantekas, stein and anastasiou (eds.), p. 457. 41 general comment no 2 (2014) crpd /c/gc/2. 42 the concluding observations of colombia, spain, iran, turkey, tunisia, cyprus. 43 the concluding observation of sweden. 44 the concluding observations of spain, turkey, montenegro. 45 the concluding observations of kuwait, costa rica. 46 the concluding observation of hungary. 47 the concluding observations of oman, united arab emirates. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 40 to disability, but references to disability have been made over the years through the protocols,48 and it has been noted that european ideals were indeed predominant in the creation of the crpd (arnardóttir and quinn, 2009, p. 7). at this point, then, the question evolves into that of how the crpd has affected the ecthr’s approach to disability. while the court’s references to the crpd are increasing, not all scholars find these to be satisfactory. for instance, in glor v switzerland, the court declared that there is a european and worldwide consensus on the protection of persons with disabilities against discrimination with reference to the crpd;49 fredman (2016, p. 29), however, noted that the court still lags behind other jurisdictions in giving sufficient weight to the relationship between reasonable accommodation and discrimination in favour or persons with disabilities. in most cases, the appearance of the crpd in strasbourg case law either only remains under the ‘relevant international law’ section or is restricted by the arguments raised by the applicants. in this vein, lewis (2018, p. 198) also argues that the court has not yet fully embraced the crpd. on the other hand, others have noted the ecthr’s adherence to the convention as being quite evident and supported this argument by noting that the court cited the crpd in some cases even when the convention was not even signed or ratified by the respondent state (favalli, 2018, pp. 526-27). it should further be noted that the impact of the crpd in local jurisdictions and regional mechanisms is still a work in progress, so its potential effect will be subject to constant re-evaluation in the years ahead. one obstacle regarding the competence of the ecthr in achieving the goals of the crpd appears to concern the large margin of appreciation left to member states concerning the realisation of positive rights. as the crpd is a document that relies on the interconnectedness of civil-political and socio-economic rights and thus imposes serious positive obligations on the states parties, it arguably poses a challenge to the ecthr. as stated by o’cinneide (2009, p. 164), the crpd holds a particular position in securing human rights, where the states are expected to create the requisite conditions to secure the social circumstances enabling people to live in dignity. while broderick (2018, p. 206) admits that expecting a dynamic interpretative approach from the ecthr in order to realise the progressive obligations imposed by the crpd is likely to be unrealistic, she also argues for an approach that takes into account the substantive requirements of the crpd as achievable within the interpretation of the ecthr. in fact, along with the wide scope of positive obligations in terms of the protection of private life, there are increasing references to the reasonable accommodation duty in relation to the right to life and the prohibition of torture and ill-treatment, particularly in detention cases of persons with disabilities. these can all be seen as the reflection of a shift in the court’s reasoning regarding positive obligations in favour of persons with disabilities (broderick and ferri, 2019). 48 notably, ‘health and disability’ now specifies an ‘other status’ under ‘discrimination by ground’ under article 14, according to protocol 12, article 1(1) and the listing in ‘guide on article 14 of the convention (prohibition of discrimination) and on article 1 of protocol no. 12 to the convention (general prohibition of discrimination)’, para 160. 49 glor v switzerland, 13444/04, para 53. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 41 on the other hand, even though there may be no specific reference to human dignity in the echr text, the concept has entered through the protocols.50 moreover, the court has affirmed it to be at the heart of its jurisdiction,51 and it has also been noted that there has been a significant increase in references to dignity in the court’s case law during the present century (kuteynikov and boyashow, 2017, p. 104). in the ecthr general case law, the most prominent applications of dignity refer to article 3 of the convention (on torture, degrading and inhumane treatment) (mccrudden, 2008, p. 686). in the judgement of bouyid v belgium, for example, the grand chamber stated there to be a particularly strong link between the concepts of degrading treatment or punishment and respect for dignity52 discrimination cases have also been prominent regarding dignity, in terms of hate crime and racial discrimination but also based on religion and on gender (kuteynikov and boyashow, 2017, p. 96). other significant areas where dignity has been identified are the rights to a fair hearing, private life and not to be punished in the absence of a legal prohibition (mccrudden, 2008, p. 683). it is also possible to observe references to dignity in the judges’ separate opinions and independent publications. writing specifically on human dignity and the ecthr, for example, judge costa (2013, p. 401) argued that the increasing use of this concept in the jurisdiction of the court has the purpose of maintaining a connection between the international instruments and the convention, since the latter is silent on dignity. this statement is particularly attractive from the perspective of this study, given that the standards of the protection of human dignity in the crpd require that some rights and duties be taken into account that are not secured by the echr. in this respect, the issue of whether an empowering interpretation of dignity will be useful in overcoming the shortcomings of the standard application to disability rights cases by the echr is worth considering. thus, the cases addressed in this study have been selected from amongst those in which there is a reference to both the crpd and the concept of dignity.53 4.1. in relation to prohibition of torture, inhuman and degrading treatment the cases in which the court has referred to the concept of dignity and the crpd jointly refer mostly to article 3 of the echr and concern the detention conditions for persons with disabilities.54 detention conditions clearly raise the issue of the reasonable accommodation duty, which is also pertinent in relation to non-discrimination as defined 50 abolition of the death penalty in all circumstances (protocol no. 13 to the echr), 3.v.2002. 51 bouyid v belgium, application no 23380/09, merits and just satisfaction, 28 september 2015, para 40.; svinarenko and slyadnev v russia, application no 32541/08, merits and just satisfaction, 17 july 2014, para 118. 52 ibid., n 95, para 40. 53 it should be stressed that, for the purpose of this analysis, the cases selected are limited to those that display the court’s reference and approach to dignity in the light of the crpd. 54 butrin v russia application no 16179/14, merits and just satisfaction, 22 march 2016; grimailovs v latvia, application no 6087/03, merits and just satisfaction, 25 june 2013; asalya v turkey, application no 43875/09, merits and just satisfaction, 15 april 2014; dordevic v croatia, application no 41526/10, merits and just satisfaction, 24 july 2012. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 42 in the crpd. in the case of butrin v russia,55 the applicant was a blind person who complained about a breach of article 3 of the echr regarding the conditions he was kept in at a correctional colony. the applicant also raised a breach of article 13, as a consequence of the denial of his early release demand based on his disability. he had been placed in a specific unit for detainees with special needs, but the premise and facilities were unsuitable for persons with visual impairments, and the only assistance assigned to the applicant was the help of another detainee, who had cardiac problems himself. as a result, the applicant had also been diagnosed with a psychosocial disability. the ecthr cited article 1 of the crpd under the ‘relevant international law’ section in this case along with articles 14, 15 and 20, regulating, respectively, the deprivation of liberty with a focus on reasonable accommodation, the freedom from torture, cruel and inhuman treatment, and the right to personal mobility. crpd articles were also visible in the quoted report of the special rapporteur on torture. yet, when addressing dignity, the court relied on its previous case law and interpretation of dignity. in this respect, the court recalled the pretty case,56 where it had noted that the treatment of a person should be characterised as ‘degrading’ if it humiliates them and arouses certain feelings, such as anger or of an incapacity, and thence diminishes their dignity. the court further referred to an earlier link established between human dignity and degrading treatment by recalling engel v hungary.57 even though the crpd was not specifically addressed in the court’s reasoning, the previous case law references displayed a relation to human dignity from the perspectives of mobility, freedom of movement, accessibility and health and wellbeing. in grimailovs v latvia,58 the court found that the lack of independent access to prison facilities for the paraplegic prisoner and of organised assistance regarding his mobility and daily routine constituted degrading treatment. it referred to the crpd and its definition of ‘reasonable accommodation’ along with its article 14, concerning the ‘liberty and security of persons with disabilities’ with a focus on deprived liberty. dignity, in this case, played a role in demonstrating the inaccessible facilities of the prison cell as failing to accommodate the applicant and his needs. in asalya v turkey, the court also referred to article 14, determining that ‘the detention of the applicant in conditions where he was denied some of the minimal necessities for a civilised life, such as sleeping on a bed and being able to use the toilet as often as required without having to rely on the help of strangers, was not compatible with his human dignity’.59 thus, the court decided that such acts constituted degrading treatment. the infringement of dignity in detention conditions has further dimensions when considering persons with disabilities, in which sense the denial of reasonable accommodation is prominent. we may also recall that lawson had warned about the limited scope of article 3 for persons with disabilities, as its application is mostly restricted 55 supra. 56 pretty v uk application no 2346/02, merits and just satisfaction, 29 april 2002. 57 ibid., para 51. 58 grimailovs v latvia, supra 102. 59 asalya v turkey, supra 102, paras 47, 53. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 43 to institutional contexts. she noted that the scope of the freedom from torture, inhuman and degrading treatment should reach beyond the prison and institutional care settings since disabled people experience such treatment in the wider context of everyday life. therefore, lawson (2005, p. 462) argued that a true commitment to the dignity and value of disabled people must allow article 3 of the echr to play a role outside the prison gates and address ‘the unimaginable and unnecessary suffering and degradation experienced’. in this sense, crpd articles 16 (on freedom from exploitation, violence and abuse) and 17 (protecting the integrity of the person) come into play. it is assumed that finding room for the potential violations of these two articles under the rights listed in the echr may vary and bring further references to dignity. 4.2. in relation to the right to respect for private and family life the case of mcdonald v uk involved the crpd and human dignity in relation to article 8 of the echr. the court’s decision here has been considered to be equally a positive development and a missed opportunity. the disappointment mostly concerns the facts that the question of the state’s positive obligations was left unaddressed and that the court failed to take the opportunity to address the intersectionality between age and disability (de pauw and de hurt, 2017, pp. 318-22). this case concerned the reduction of the care package of the applicant, who had suffered a stroke and had serious mobility problems due to her injuries at home. with an additional bladder condition, the applicant also made frequent visits to the toilet, particularly at night, and needed assistance for this. the local authority, however, reduced the amount of her weekly health care support, suggesting that the applicant could be provided with incontinence pads in lieu of nighttime care. the applicant, in her domestic appeal, argued that the suggestion that she use pads at night instead of a support was, in fact, an infringement of her autonomy and dignity, which was incompatible with article 8 of the echr. the same argument was continued at the ecthr. the applicant emphasised that the suggested method would be an unjustified interference with her right to respect for her private life, that it ‘exposed her to considerable indignity’60 and had a negative impact on her family life with her partner. the applicant also referred to crpd article 19, requiring state parties to meet obligations in providing the means for independent living in society. the state’s argument focused on the just distribution of resources (given the needs of other care beneficiaries and the limited resources) and on the safety of the applicant (in order to prevent a further injury). in its determination, the court agreed that the applicant’s complaint of the proposed measure would have an impact on her private life (based on her dignity argument) and would thus fall under article 8 of the convention, and it noted that the case fell under the interference to private life provisions without entering into the essential question of the positive obligations regarding the member state. therefore, apart from a short period of time when article 8 was admitted to be violated, the court ruled that there was no violation (since the health care policies of the states arising from the convention are 60 mcdonald v the united kingdom, application no 4241/12, merits and just satisfaction, 20 may 2014, para 38. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 44 subject to a wide margin of appreciation and restricted by national resources). the court did not further invoke any article of crpd in its decision. this has been regarded as a missed opportunity to integrate the crpd’s independent living right into ecthr case law (de pauw and de hurt 2017, p. 318). the court cited the pretty case and its relation to dignity in terms of article 8 from the perspective of the relationship between autonomy and dignity, but the argument based on the infringement of dignity – regarding one’s own sense of personal integrity under the right to respect for private life – although admitted, was not enough to constitute a violation as long as the state party acted in accordance with national law (since this was the subject of an assessment of priorities within the limited resources of the particular state). therefore, the court’s application of dignity has been criticised for falling short and not being clear enough to shed light on the specific disabilityand age-related entitlements as well as for its potential impact on future cases (ibid., pp. 332-33). in this respect, even though a reference to the infringement of dignity can be considered a positive aspect of the case, the oversight of the court in respect to positive obligation duties regarding the protection of private life and thus in relation to dignity seems unsatisfactory. waddington (2012, p. 330) argues that even though article 8 of the echr has been invoked in some cases of persons with disabilities, particularly in respect to direct interferences by the states, the positive obligation requirements of the article have rarely been applied in disability cases. waddington’s remark may be observed in the case of stanev v bulgaria. this case deserves a profound discussion on multiple grounds concerning disability human rights; here, though, it is only invoked in relation to the role of dignity with respect to private life and disability.61 the case involved an applicant who was placed in a social care home established for people with mental disabilities. the applicant’s inability to obtain permission to leave the home was found to be in breach of article 5 of the echr, which concerns the right to liberty and security. also, the poor living conditions in the home – an issue also addressed in several reports, including that of the committee for the prevention of torture and inhuman or degrading treatment or punishment (cpt) – was deemed to breach articles 3 and 13 of the crpd in conjunction with the article 3 of the echr. the lack of access to a court to seek release from partial guardianship was further found as a violation of echr article 6. following its most common method of reference, the court referred to dignity in this case also through echr article 3 concerning a person’s detention conditions. in her partially dissenting opinion, however, judge kalaydjieva commented on the nonapplication of article 8, stating that ‘the lack of respect for the applicant’s recognised personal autonomy violated mr. stanev’s right to personal life and dignity as guaranteed by article 8 and failed to meet contemporary standards for ensuring the necessary respect for the wishes and preferences he was capable of expressing’.62 the link between the 61 for an analysis of the case on other grounds, see lewis (2012), ‘stanev v. bulgaria: on the pathway to freedom’ human rights brief, 19(2). 62 stanev v bulgaria, application no 36760/06, merits and just satisfaction, 17 january 2012. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 45 restricted autonomy and dignity that judge kalaydjieva established in this sense echoes the spirit of the crpd and also opens the way to an understanding of dignity that takes on a more emancipatory sense of human flourishing. in this context, kalaydjieva noted that while article 8 in respect to the deprivation of legal capacity was the primary issue in this case, the reference to dignity also helps to extend its application in disability cases beyond article 3. 4.3. in relation to disability-based discrimination and the right to education in sahin v turkey, also, the court referred to human dignity in line with the crpd.63 this case was determined as a breach of article 14, on discrimination on the basis of disability, in conjunction with article 2 of protocol 1, on the right to education.64 here, the applicant was a university student who had become paraplegic following an accident and wished to resume his higher education studies. the applicant requested that the university administration make the adjustments needed for him to be able to access his faculty in the following term. the university responded that the adjustments would take considerable time based on its economic constraints and offered instead to provide the applicant with human assistance, namely, another person carrying him up and down the stairs as needed. the applicant stated that he perceived the proposal as degrading and infringing his privacy.65 in this case, with reference to the lack of accessibility and reasonable accommodation, the court noted the central importance of living autonomously with a fully developed sense of dignity and self-respect in light of the crpd. it reiterated its previous position and noted that being able to make independent choices was, in fact, related to one’s dignity and freedom and that these principles were at the core of the convention.66 evaluating the university’s suggestion of human aid, the court concluded that the government had failed to provide evidence of a sincere consideration of the effect of this on the applicant’s security, autonomy and dignity.67 a similar disability discrimination case in relation to article 14 in conjunction with the article 2 of the protocol 1 of echr was that of çam v turkey. while this case concerned the discriminative practices of a higher education institute towards a blind student in accessing the right to education, the court quoted the crpd but did not mentioned the concept dignity. however it could be argued that, by referring to the article concerning the right to education in the crpd several times, the court indirectly indicated the first clause of article 22 of the crpd, where dignity appears in relation to right to education.68 63 enver sahin v turkey, application no 23065/12, merits and just satisfaction, 30 january 2018. 64 in a dissenting opinion, judge lemmens drew attention to the argument that the case was merely an issue of right to education and the accessibility obligations of the states party; quoting the crpd and its general comment 2, judge lemmens noted the distinction between reasonable accommodation and accessibility. ibid. 65 enver sahin v turkey, para 7. 66 ibid., para 63. 67 ibid., para 64. 68 çam v turkey, application no 51500/08, merits and just satisfaction, 23 may 2016. exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 46 4.4. in relation to disability hate speech the case of dordevic v croatia is a case worthy of note since it covers more than one applicant and several rights related to the notion of human dignity.69 this case concerns long-term verbal and physical harassment to the extent of ill-treatment towards a person with a cognitive and physical disability cared for by his mother. it is also important in terms of the rights abuses that the primary caregivers of persons with disabilities encounter and as a particular example of a disability hate crime and the failure of the state to tackle such acts. the applicant, mr. dordevic, was an adult with a mental and physical disability who was cared for by his mother, mrs. dordevic. both were croatian citizens of serbian origin. mr. dordevic attended a workshop for adults in a nearby primary school, where he was harassed for three years by the other pupils, particularly on the journey between home and school. attacks occurred in front of the applicant’s balcony, including verbal harassment targeting the applicant’s ethnic background and disability and other acts, such as spitting, making noises and drawing insulting messages on the pavement and causing damage to the applicants’ place of residence. a medical report indicated that mr. dordevic was continually attacked. the complaint of the applicant at the domestic level resulted in dissatisfaction since the harassment was conducted by minors and did not constitute criminal liability – which introduced the issue of state responsibility.70 several crpd articles were addressed in the relevant international law section, and the crpd, in particular, was brought to the court’s attention by a third-party intervention in the case. in drawing attention to the notion of disability hate crime, the european disability forum, as the third party intervener, noted the relevant crpd articles regarding the nondiscrimination requirements and also the requirement of relevant effective measures regarding violence. the violation of several articles of the echr were raised by the applicants, namely, breaches of articles 2 and 3 (on the right to life and prohibition of torture) regarding mr. dordevic and of article 8 (on respect for private and family life) regarding his mother and caregiver, mrs. dordevic. the court found a violation of articles 2 and 8 but also of article 13. the court several times noted that the case concerned the positive obligations of the state outside the sphere of criminal law and invoked dignity when addressing article 8 in terms of private life and a person’s psychological integrity. with reference to previous case law, it noted that states had a positive obligation to ensure respect for human dignity and the quality of life (in certain respects). although not framed verbally as such, the idea of dignity was raised by the third-party intervener since, in relation to disability hate crimes, they noted that the vulnerability of persons with disabilities was used as the basis for attacks that were intended to humiliate and hurt the person.71 this statement also displayed concern for the integrity of the psychological sphere and protection of dignity. 69 dordevic v croatia, application no 41526/10, merits and just satisfaction, 24 july 2012. 70 ibid., para 103. 71 ibid., para 133. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 47 4.5. in relation to more complex cases: right to liberty v right to life one might argue that there is not much room for an argument of dignity in cases where there is a violation of the right to life. the question of dignity in such cases might then perhaps be assessed retrospectively. fernandes de oliveira v portugal provides an opportunity to test this. the case concerned the suicide of the applicant’s son while in the care of a psychiatric institution where he was a voluntary patient. it particularly concerned the state’s obligations in terms of protecting the lives of people in psychiatric institutions, yet with a focus on the voluntariness dimension. both the crpd and its guidelines were invoked in the decision, particularly from the perspective of the personal liberty and security of psychiatric patients. the court’s reasoning gave a place to dignity in a paragraph stressing the role of the court in protecting dignity along with human freedom.72 the court emphasised that the authorities, in line with echr article 2, should diminish the possibilities of self-harm yet not by infringing autonomy.73 thus, by a majority, the grand chamber found no violation of the substantive part of article 2 concerning the state’s obligation to protect the life of the patient. the dissenting opinion of judge pinto de albuquerque, joined by judge harutyunyan, however, is worth mentioning in order to revisit the role of vulnerability in the outcome. one particular point in the opinion drafted by judge albuquerque is relevant here. phrasing the stance of the court regarding the liberty of psychiatric patients as in favour of the ‘recent trend’,74 he noted that the court had missed an opportunity to capture a greater concern, namely the right to life and the state’s obligation to maintain this right, particularly in case of institutionalised psychiatric patients.75 this particular point of the dissenting opinion may at first sight be perceived as a threat to crpd standards regarding the restrictions of persons with psychosocial disabilities since the ambition of the convention is to eliminate institutionalisation.76 yet, the comments could also be interpreted as a reference to dignity by adopting a negative freedom approach (against which the state defended), or rather, by targeting the fact that emphasising the liberty and autonomy of persons without addressing their extreme vulnerability may result in a reoccurrence of similar events. the dignity-autonomy relationship here seems quite different than in the sahin case (above). while there, the non-interference, or the absence of the suitable application of the positive obligations of the state had resulted in an infringement of the applicant’s autonomy and dignity, here, the non-interference of the state or application of an autonomy-based approach to dignity, as claimed, resulted in a vulnerable person’s death. in the similar, previous case of hiller v. austria, where the court had found no 72 fernandes de oliveira v portugal, application no 78103/14, merits and just satisfaction, 31 january 2019, para 112. 73 ibid. 74 judge albuquerque refers here to the dissenting opinion of judge motoc in hiller v austria, application no 1967/14, merits and just satisfaction, 22 november 2016. 75 see dissenting opinion of judge albuquerque in fernandes de oliveira v portugal, supra. 76 see bartlett, ‘the right to life and the scope of control: fernandes de oliviera v portugal’, strasbourg observers, 18 march 2019. at https://strasbourgobservers.com/2019/03/18/the-right-to-life-and-the-scopeof-control-fernandes-de-oliveira-v-portugal/#more-4319 https://strasbourgobservers.com/2019/03/18/the-right-to-life-and-the-scope-of-control-fernandes-de-oliveira-v-portugal/#more-4319 https://strasbourgobservers.com/2019/03/18/the-right-to-life-and-the-scope-of-control-fernandes-de-oliveira-v-portugal/#more-4319 exploring the use of the concept of human dignity in disability human rights law the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 48 violation of article 2, judge sajo had alerted us to this point by noting that ‘precaution is not paternalism’.77 departing from the mentioned ecthr cases, a positive reading of the application of dignity in disability cases in terms of ecthr might reveal further areas where dignity has had an impact in the interpretation of the court, even if not the outcome. apart from the established role of dignity in torture and degrading treatment in previous ecthr cases, the idea of dignity has been helpful here in identifying what constitutes such treatment from the perspective of persons with disabilities. in this sense, the requirements of the crpd, such as accessibility and reasonable accommodation, play an important role in linking indignity to the denial of these rights. circumstances and events that may not be adequate to constitute such acts in the case of able persons are certainly different in the case of disabled persons under detention and imprisonment facilities. therefore, denying the rights and basic principles of the crpd is likely to infringe dignity, and recognition of their denial will definitely shape the borders of indignity and thus extend the scope of echr article 3. furthermore, dignity informs disability discrimination cases where the requirements of equal treatment are denied by the lack of accessibility and reasonable accommodation requirements. an emphasis on the relationship between dignity and selfesteem, or dignity and independence, is also becoming evident in the recent case law of the court.78 this raises the issue of the broader applicability of echr article 8 in certain disability cases. finally, the tension between dignity and autonomy is likely to continue in the case of persons with disabilities intersecting with further vulnerabilities, as was pointed out in the dissenting opinions of the hiller and de oliviera cases. 5. conclusion the primary focus of this study has been on identifying and characterising respect for dignity in relation to disability through the guidance of the crpd. in this regard, the appearance and application of the concept has been addressed by focusing on the views of the committee and the post-crpd case law of the ecthr. the greatest challenge was established by the limitations of the currently available case law. therefore, this study takes into account the fact that it may be rather early to reach a pessimistic conclusion regarding the standards aimed at yet not achieved by the application of the concept of dignity in the domain of disability human rights. there has still been no significant attempt to reconceptualise or elucidate the concept of dignity in the work of the crpd committee, yet the concept has become evident in a few new contexts, as was also the case, indeed, with the formulation of accessibility, non-discrimination and inclusive equality. in the context of the communications received by the committee, certain rights, such as the freedom from torture and from exploitation, violence and abuse, and the right to integrity and accessibility, seem to have made room for an argument from human dignity. it is to be anticipated that the number of rights 77 see the ‘concurring opinion of judge sajo’ in hiller v austria. 78 see enver sahin v turkey, para 63. elif çelik the age of human rights journal, 17 (december2021) pp. 27-53 issn: 2340-9592 doi: 10.17561/tahrj.v17.6321 49 referring to human dignity will increase in the coming years. meanwhile, it is too early to argue that the concept has been very significant in the outcomes of the case law of the committee. compared to that of the crpd, the long-established case law of the ecthr provides a greater quantity and range of examples with which to observe the impact and visibility of human dignity in cases of disability. in considering the holistic rights approach embraced by the crpd, the ecthr, i would argue, ought to place more emphasis on the positive obligations that are the substantive conditions of the respect for dignity. have the standards provided by the crpd advanced the court’s interpretation of dignity? while torture, degrading and ill-treatment cases usually allow for the concept of dignity, the core principle of accessibility and also the relationship between non-discrimination and reasonable accommodation, particularly in detention facilities, do seem to have advanced the court’s guarantee of dignity from the perspective of disability. some cases have also demonstrated the relationship between dignity and non-discrimination with respect to reasonable accommodation and accessibility. article 8 of the echr has the greatest potentiality for addressing dignity in an empowering connotation with disability. unfortunately, the court seems to have missed the few opportunities to establish such a link. finally, one may expect the crpd committee to provide further guiding practices and robust examples of the application of dignity as one of its core principles and thereby contribute to the requirements of respect for and the legal construction of the concept. the ecthr, meanwhile, should take 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(2012). ‘restoring the “human” in “human rights”: personhood and doctrinal innovation in the un disability convention’ in c. douzinas and c. gearty (eds.) the cambridge companion to human rights law, 36-56. cambridge: cambridge university press. https://doi.org/10.1017/ cco9781139060875.005 rosen, m. (2012). dignity its history and meanings. cambridge (ma): harvard university press. https://doi.org/10.4159/harvard.9780674065512 stein m. a. and lord, j. e. (2010). ‘monitoring the convention on the rights of persons with disabilities: innovation, lost opportunities and the future potential’, human rights quarterly, 32, 689-728. https://doi.org/10.1353/hrq.2010.0003 waddington, l. (2012). ‘unravelling the knot: article 8, private life, positive duties and disability: rewriting sentges v. netherlands’ in diversity and european human rights: rewriting human rights decisions, 329-352. cambridge: cambridge university press. https://doi.org/10.1017/cbo9781139208130.021 waddington, l. and lawson, a. (2018). the un convention on the rights of persons with disabilities in practice, a comparative analysis of the role of courts. oxford: oxford university press. https://doi.org/10.1093/oso/9780198786627.001.0001 waldron, j. (2012). ‘dignity, rank, and rights’, in m. d. cohen (ed.). dignity, rank, and rights. oxford: oxford university press. https://doi.org/10.1093/ acprof:oso/9780199915439.001.0001 received: may 1st 2021 accepted: july 26th 2021 https://doi.org/10.1017/cco9781139060875.005 https://doi.org/10.1017/cco9781139060875.005 https://doi.org/10.4159/harvard.9780674065512 https://doi.org/10.1353/hrq.2010.0003 https://doi.org/10.1017/cbo9781139208130.021 https://doi.org/10.1093/oso/9780198786627.001.0001 https://doi.org/10.1093/acprof:oso/9780199915439.001.0001 https://doi.org/10.1093/acprof:oso/9780199915439.001.0001 exploring the use of the concept of human dignity in disability human rights law: from the crpd 1. introduction 2. human dignity as accommodated in the crpd 3. human dignity in crpd case law 3.1. in relation to freedom from torture, inhuman and degrading treatment and from exploitation, vi 3.2. in relation to personal integrity 3.3. in relation to accessibility 4. the role of human dignity in post-crpd ecthr case law 4.1. in relation to prohibition of torture, inhuman and degrading treatment 4.2. in relation to the right to respect for private and family life 4.3. in relation to disability-based discrimination and the right to education 4.4. in relation to disability hate speech 4.5. in relation to more complex cases: right to liberty v right to life 5. conclusion bibliography the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 1 the right to private property under martial law in ukraine kateryna nekit1 abstract: in ukraine, the inviolability of the right to private property is guaranteed by the constitution. however, under martial law, introduced in ukraine as a result of aggression by the russian federation, restrictions on private property rights and even forced alienation of property for the needs of the state are allowed. this paper aims to determine the peculiarities of the legal regulation of private property relations under the legislation of ukraine and to study the reasons for limiting property rights under martial law in ukraine. furthermore, it looks into the mechanisms for restoring property rights and issues in the field of implementation and protection of property rights under martial law. such cases of restriction of private property rights as forced alienation of property and impossibility of disposal of property under martial law are being highlighted. the article also analyzes the problems of compensation for damage caused to property in terms of the war. keywords: the right to private property, requisition, forced alienation, martial law, war, restriction of property rights, compensation for damage. 1. introduction the right to private property holds a special place in a variety of human rights. from ancient times, the right to private property was considered necessary to ensure social unity and was perceived as the embodiment of the ideas of justice. nowadays the importance of the right to private property for the development of the individual and society is unquestionably recognized. in ukraine, the final step towards recognizing the importance of property rights in the human rights system was ratification of the european convention for the protection of human rights and fundamental freedoms of 1950 (hereinafter referred to as convention), which deals with the right of private individuals to peacefully enjoy their possessions and prohibit deprivation of possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. the convention was ratified by ukraine on july 17, 1997 and entered into force for ukraine on september 11, 1997 (verkhovna rada of ukraine, 1997). after the ratification of the convention and the adoption of the law of ukraine “on enforcement of judgments and application of the case law of the european court of human rights” (verkhovna 1 dr. of science, professor of civil law department of national university “odessa law academy”, odessa, ukraine. guest researcher at the institute for sme research and entrepreneurship (ifm) at the university of mannheim (germany) katerinanekit@gmail.com. orcid: 0000-0002-3540-350x. http://10.17561/tahrj.v20.7579 mailto:katerinanekit@gmail.com https://orcid.org/0000-0002-3540-350x the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 2 rada of ukraine, 2006), the convention and the case law of the european court of human rights have become binding in ukraine. thus, today the convention is part of ukrainian legislation and its provisions play a significant role in national law in resolving various disputes. according to the law of ukraine “on enforcement of judgments and application of the case law of the european court of human rights” of 23 february 2006, courts must apply not only the convention but also the case law of the european court of human rights as a source of law. apart from international guarantees of the right to private property, the main source for regulation of private property relations in ukraine is the constitution of ukraine, which prohibits any violations of the right to private property apart from cases directly established by law. thus, despite a very careful approach to protection of the right to private property, it still can be limited in cases when interests of state or society should be protected. therefore, in modern law, ownership is complemented by a necessary social function performed by the owner for the public benefit. this approach led to the realization of the need to limit the absolute right of ownership in the public interest. the owner is obliged to take into account not only his or her personal interest, but also the interests of society. the right of ownership is considered inextricably linked with the duties of a person, first of all, in connection with the principle of social limitation of the right to private property (nekit, 2021b). despite the recognition of the possibility and necessity in some cases to limit the right to private property in the public interest, such cases of restrictions of the property rights are recognized as exceptional. such restrictions should be based on the balance of interests of the person, society and the state. thus, forced alienation of private property under martial law can be attributed to the cases of such a need to balance the interests of a person, society and the state. 2. theoretical framework and methodology the issue of the right to private property limitation has been the subject of researchers' attention for a long time. thus, g. hegel noted that private property can be limited only in exceptional cases, and such restrictions can be based only on the reasonable approach of the state as a whole, not be determined by the wishes of private individuals. speaking about the need for private property, g. hegel considered it through the prism of the attitude of a person to property. he noted that through property a person expresses the freedom. this, according to the philosopher, is the importance of private property. the state can make exceptions to this rule, but only the state can make such exceptions (hegel, 1990). the doctrine of necessity of the right to private property has been developed at the end of 19th – beginning of 20th century. thus, g. shershenevich noted that the right to private property must be implemented in accordance with the procedure established by law. this means that the right to private property can be limited, but such limitations can http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 3 only be established by law or contract, and after their termination, the right of ownership must be renewed in its initial form (shershenevich, 2020). in modern law, as a result of the influence of numerous socio-philosophical doctrines aimed at finding the best model of social relations, the theory that ownership is a relationship between people, and not just a person's relationship to things, has spread. ownership is complemented by a necessary social function performed by the owner for the public benefit. this approach led to the awareness of the need to limit the absolute right of ownership in the public interest. therefore, the owner was obliged to take into account not only his personal interest, but also the interests of society. the right to property is considered inextricably linked with the duties of a person, first of all, in connection with the principle of social limitation of the right to private property (vetrova, 2006). in the ukrainian doctrine, the issues of the inviolability of property rights and the need for its limitations were considered by o. rozgon, who devoted her phd thesis to the researching the limitations of property rights (rozgon, 2005). o. dzera has some works on the inviolability of property rights in the context of european standards for the protection of property rights (dzera, 2005). n. kuznetsova, considering property as the basis of civil society and a democratic state, pointed to the limitation of the owner's freedom of discretion in exercising his right to property, in particular, the need to refrain from actions that could violate the rights of others, cause damage to the environment or cultural heritage (kuznetsova, 2011). since the occupation by the russian federation of a part of the territory of ukraine, and later the outbreak of a full-scale war, scientific studies of restrictions on human rights, including the right to private property, in terms of armed conflict and under martial law began to appear in ukrainian doctrine. among the works devoted to the limitation of human rights and freedoms under martial law, we can mention findings of r. melnyk and t. chubko (2016), i. glowyuk, h. teteryatnik, v. rogalska and v. zavtur (2022), o. frankov (2022). the report of yu. naumenko "violation of property rights in terms of the armed conflict in the east of ukraine and methods of their protection" (2020) is of particular importance for the protection of the owners’ rights. the report highlights the available mechanisms for obtaining compensation for destroyed property, mechanisms for restoring property rights, as well as ukrainian court practice in cases regarding receiving compensation for destroyed/damaged property and the practice of the european court of human rights in similar international armed conflicts. in the western doctrine, in the field of protection of property rights during military conflicts and in occupied territories, the works of l.g. loucaides (2004), m.m. molango (2009), h. das (2004), and m. taylor (2021) are of particular interest. the mentioned scholars analyze the problems of protection of property rights and compensation for damage caused to owners during hostilities from the international humanitarian law perspective. in particular, m. taylor (2021) in his work mostly focuses on the crime of pillage and related regulation of property during armed conflict under international humanitarian law. http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 4 nevertheless, the problem of restrictions and protection of property rights under martial law in ukraine remains insufficiently covered. therefore, this article aims to determine the reasons for limiting property rights under martial law in ukraine, the mechanisms for restoring property rights and problems in the field of implementation and protection of property rights under martial law. to achieve this goal, general scientific and special research methods are used. methodological basis for the study was a dialectical method that allowed to review the issues in their development and interconnection. method of analysis and synthesis as long as empirical method are used to reveal peculiarities of compensation for the damage caused to the property under martial law. the main method of the research is formal-dogmatic as the paper mostly focuses on the study of normative legal acts which provide the frame for realization of the right to private property in ukraine as well as mechanisms of compensation for the force alienation of the property under martial law and ways to restore property rights. comparative method is used to study international experience regarding compensation for the damage caused to the property under martial law. 3. constitutional guarantees of the right to private property in ukraine in ukraine, property relations are regulated by various branches of law, which allows us to speak about the complex nature of this institution, which covers a set of rules that establish general principles of ownership, regulate and protect the ownership of individuals (novoselova, 2001). however, the constitutional provisions that establish the legal regime of property relations are of special importance. the constitution of ukraine (verkhovna rada of ukraine, 1996), being the basis of all legislation of ukraine, defines the basic principles of regulation of property relations. the constitution of ukraine not only enshrines the basic principles of regulation of property relations, but also provides some rules on subjects, objects, features of certain types of property rights. in particular, art. 13 of the constitution of ukraine enshrines the principle of equality of all subjects of property rights, the essence of which is that all subjects of property rights are guaranteed equal freedom in exercising their property rights, equal opportunities to acquire or renounce property rights, etc. in addition, all subjects of property relations are guaranteed equality in the protection of their rights in case of violation. this principle enshrined in the constitution is in fact repeated in part 2 of art. 318 of the civil code of ukraine (verkhovna rada of ukraine, 2003a), according to which all subjects of property rights are equal. art. 13 of the constitution of ukraine enshrines a number of other important provisions. in particular, it enshrines the principle of restricting the freedom of the individual in the interests of society, according to which property should not be used to the detriment of man and society, i. e. the essence of this principle is that the owner's freedom regarding the property is allowed to the extent that it does not harm other people and society as a whole. http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 5 the principle of restricting the freedom of the individual by the interests of society, enshrined in art. 13 of the constitution of ukraine, is detailed at the level of the civil code of ukraine, in particular, part 5 of art. 319 of the civil code of ukraine stipulates that the owner may not use the right of ownership to the detriment of the rights, freedoms and dignity of citizens, the interests of society, to worsen the environmental situation and natural qualities of the land. art. 24 of the constitution of ukraine enshrines the principle of non-discrimination, according to which there can be no privileges or restrictions on the grounds of race, color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, language or other characteristics. this principle is reflected in part 2 of art. 317 of the civil code of ukraine, according to which the content of property rights is not affected by the place of residence of the owner and the location of the property. a number of fundamental provisions on property rights are enshrined in art. 41 of the constitution of ukraine. in particular, it provides for the right of everyone to own, use and dispose of their property, to acquire the right to private property in the manner prescribed by law, and the right of every citizen to use objects of state and communal property in accordance with the law. in addition, art. 41 of the constitution enshrines the principle of inadmissibility of deprivation of property rights, except as provided by law, and the principle of inviolability of property rights. thus, in accordance with art. 41 of the constitution, compulsory alienation of objects of private property rights can be used only as an exception for reasons of public necessity, on the basis and in the manner prescribed by law, and with prior and full reimbursement of their value. compulsory alienation of such objects with the subsequent full reimbursement of their value is allowed only in conditions of martial law or state of emergency. confiscation of property may be applied only by court decision in cases, to the extent and in the manner prescribed by law. these principles are reflected in art. 3 and art. 321 of the civil code of ukraine. art. 3 of the civil code of ukraine enshrines the principle of inadmissibility of deprivation of property, except as provided by the constitution of ukraine and the law, which implies the need to provide owners with the opportunity to use their property in their interests, without the threat of its arbitrary seizure, prohibition or restrictions on use. in art. 321 of the civil code of ukraine the principle of inviolability of property rights is detailed, according to which no one can be unlawfully deprived of property right or restricted in its implementation other than by a court decision adopted on lawful grounds. seizure of property in the public interest is also allowed only in cases directly established by law and with mandatory prior equivalent compensation. thus, the constitution of ukraine enshrines the basic principles of legal regulation of property relations, which are further detailed at the level of the civil code of ukraine and special laws and regulations, the provisions of which may not contradict those enshrined in the constitution, and therefore plays a leading role in determining the approach to regulation of property relations in ukraine. http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 6 4. general provisions on the right to private property under civil legislation of ukraine the right to private property is enshrined in art. 325 of the civil code of ukraine, however, it does not encompass a special definition of the concept of private property right and only stipulates that the subjects of private property rights are individuals and private legal entities. such an approach is not surprising, because in essence any type of ownership and any form of ownership, no matter how high is the level of socialization in a given case, can exist only if someone refers to the property as to his or her own, and someone as to something which belongs to other people. without this condition, there is no ownership at all. from this point of view, any form of ownership is private (tolstoy, 1992). thus, the right to private property is opposed to other types of property rights in fact only because private entities cannot own certain types of objects (defense, military, space, etc.), so with the exception of these groups of objects there are factors to recognize the presumption of private ownership (alekseev, 2007). the right to private property in ukraine is guaranteed at the level of the constitution, as it is the basis of any market society. as it was mentioned before, in accordance with art. 41 of the constitution of ukraine, the right to private property is inviolable. compulsory alienation of objects of private property rights may be used only as an exception for reasons of public necessity, on the basis and in the manner prescribed by law, and subject to prior and full reimbursement of their value. compulsory alienation of such objects with the subsequent full reimbursement of their value is allowed only under martial law or state of emergency. for example, a special procedure for the alienation of land and privately owned real estate is established by the law of ukraine “on the alienation of land, other privately owned real estate, for public needs or for reasons of public necessity" of november 17, 2009 (verkhovna rada, 2009). according to ukrainian legislation, subjects of private property rights may be individuals, i. e. citizens of ukraine, foreign citizens and stateless persons who have equal rights, unless otherwise is established by law. such a rule reflects the principle of equality, enshrined in art. 319 of the civil code of ukraine. other group of subjects of the right to private property includes private legal entities regardless of their organizational and legal form, i. e. legal entities of public law are not subjects of the right to private property. the object of private property rights can be any property, except that withdrawn from circulation. in ukraine, depending on turnover capacity all objects of civil legal relations are divided into three groups: a) objects in free circulation the majority of objects that can be freely transferred from one person to another; b) objects restricted in civil circulation (limited turnover) such objects may belong only to such participants that meet the requirements established by http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 7 law, or their acquisition (alienation) is allowed only on the basis of special permits. types of such objects are established by law; c) objects withdrawn from civil circulation such objects cannot be the subject of transactions and can be only in state or communal property, or in the property of the ukrainian people. types of such objects are also directly established by law. thus, in accordance with part 2 of art. 325 of the civil code of ukraine, individuals and private legal entities may be owners of any property, except for certain types of property, which according to the law may not belong to them. the list of types of property that cannot belong to individuals and private legal entities was approved by the resolution of the verkhovna rada of ukraine “on the right of ownership of certain types of property” of june 17, 1992 (verkhovna rada of ukraine, 1992), which stipulates that the mentioned entities may not own: 1) weapons, ammunition (except for hunting and pneumatic weapons and ammunition to it, as well as sports weapons and ammunition to it, which are acquired by public associations with the permission of law enforcement agencies), combat and special military equipment, rocket and space complexes; 2) explosives and means of explosion, all types of rocket fuel, as well as special materials and equipment for its production; 3) combat poisons; 4) narcotic, psychotropic, potent toxic drugs (except for those received by citizens on prescription); 5) anti-hail installations; 6) state standards of units of physical quantities; 7) special technical means of secretly obtaining information; 8) electric shock devices and special means used by law enforcement agencies, except for gas pistols and revolvers and ammunition for them, charged with tear gas and irritants. the same resolution approved a special procedure for the acquisition of ownership of certain types of property by certain subjects of legal relations. such property, which may be purchased only with the permission of the relevant authorities, includes firearms, gas pistols and revolvers and certain types of air guns, historical and cultural monuments, and radioactive substances. the mentioned resolution at the first glance may seem to contradict to the adopted after the russian invasion in ukraine order of the ministry of internal affairs of ukraine approving the procedure for obtaining firearms and ammunition by civilians who participate in repelling and deterring armed aggression of the russian federation and/or other states of march 7, 2022 (ministry of internal affairs of ukraine, 2022). according to this order civilians got the right to obtain firearms and ammunition, that created the impression that weapon and ammunition may belong to individuals on the right to private property, which would mean weapon can be an object of civil turnover and be freely transferred from one individual to another. however, the detailed analysis of the mentioned order leads to the http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 8 conclusion that individuals do not get the right of ownership to the weapon, obtained to counter aggression. such weapon and ammunition are transferred only for temporary use with a specific aim and for the period of the state of war, which was implemented in ukraine from february 24, 2022. after the end of this period or in case an individual ceases to take part in confronting armed aggression, such weapon and ammunition should be returned to the national police of ukraine. such an approach makes it clear that there cannot be the right of ownership to weapon and ammunition in ukraine. at the same time, the draft law “on the right to civilian firearms” is being discussed since june 2021. in case of the adoption of this law, firearms will become a part of civilian turnover and individuals will get the right to have weapon in private property. however, as of november 2022, the law has not yet been adopted. the specifics of the right to private property also determines the existence of special grounds for the acquisition and termination of the right to private property. in particular, the special grounds for acquiring the right to private property should include: 1) acquisition of the right of ownership to a newly created or reworked thing; 2) appropriation of publicly available gifts of nature; 3) acquisition of ownership of a movable thing, which the owner abandoned; 4) acquisition of ownership of the find; 5) acquisition of ownership of a stray pet; 6) acquisition of ownership of the treasure; 7) acquisition of property rights under the acquisitive prescription; 8) acquisition of property rights in the case of privatization of state property and property in communal ownership. also, some grounds for termination of ownership are applicable only to the right to private property, such as requisition, confiscation, redemption of cultural heritage, termination of ownership to property that cannot belong to an individual, and so on (chapters 24-25 of the civil code of ukraine). an important principle of the right to private property is the unlimited amount of property that may belong to a person, enshrined in art. 325 of the civil code of ukraine, according to which the composition, quantity and value of property that may be owned by individuals and private legal entities are not limited. this principle, was enshrined in ukrainian civil legislation only after the adoption of the new civil code of ukraine in 2003. in soviet times the provisions of civil legislation were aimed at limiting the amount of property that could be owned. today, on the contrary, civil code of ukraine emphasizes the possibility of owning an unlimited amount of any legally acquired property. 5. restrictions of the right to private property under martial law in ukraine as it was mentioned before, the absolute nature of the right to private property does not mean the inability to limit it in case interests of the state or society require such limitation. the possibility of restricting the right to private property at the national level is enshrined in the art. 41 of the constitution of ukraine (nekit, 2021a). however, such restrictions may be imposed only by law. the basis for limiting the right to property in terms of the war in ukraine became the law of ukraine "on approval of the decree of the president of ukraine "on the introduction of martial law in ukraine" dated february 24, 2022 (verkhovna rada of ukraine, 2022). art. 3 of the specified decree establishes http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 9 the possibility of limiting the constitutional rights and freedoms of a person and a citizen, provided for in articles 30 34, 38, 39, 41 44, 53 of the constitution of ukraine, as well as the introduction of temporary restrictions on the rights and legitimate interests of legal entities during the period of the legal regime of martial law within the limits and to the extent necessary to ensure the possibility of introducing and implementing measures of the legal regime of martial law. the most radical case of limitation of the right to private property under martial law is forced alienation of private property (requisition). in such case owners can be deprived on their private property, although they have right to get compensation for it. however, the implementation of this rule in practice may face many difficulties. requisition as a way to terminate the right to private property is provided for in art. 353 of the civil code of ukraine, according to which "in the event of a natural disaster, accident, epidemic, epizootic and under other extraordinary circumstances, for the purpose of public necessity, property may be forcibly alienated from the owner on the basis and in the manner established by law, on condition of prior and full reimbursement of its value. in terms of war or a state of emergency, property may be compulsorily alienated from the owner, followed by full reimbursement of its value." therefore, as a general rule, within the framework of requisition, forced alienation of property is carried out on the conditions of preliminary reimbursement of the value. however, martial law is an exceptional situation where property can be compulsorily alienated even without prior compensation. in such a case, the person is either reimbursed for the value of the requisitioned property later, or the requisitioned property is returned, provided that it was preserved and that the person applied to the court for its return (part 6 of article 353 of the civil code of ukraine). therefore, in terms of war or emergency, private owners become very vulnerable. determining the value of requisitioned property can be especially problematic. the specifics of forced alienation of private property under martial law are detailed in the law of ukraine "on the legal regime of martial law" (verkhovna rada of ukraine, 2015) and the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency" (verkhovna rada of ukraine, 2012). according to art. 23 of the law of ukraine "on the legal regime of martial law", forced alienation of privately or communally owned property under martial law, in case the previous full compensation of the value of such property has not been carried out, entails the subsequent full compensation of its value in the manner determined by law. if the property that was forcibly expropriated from legal entities and individuals remains after the abolition of the legal regime of martial law, the former owner or a person authorized by the owner has the right to demand the return of such property appealing to the court. the former owner of the property forcibly alienated under martial law may demand another property, which would replace the alienated property, if possible. in may 2022, the specified article of the law of ukraine "on the legal regime of martial law" was supplemented with a provision according to which, in case of confiscation of property http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 10 (assets) to the state revenue as a sanction, provided for in clause 1-1 of the first part of article 4 of the law of ukraine "on sanctions" (verkhovna rada of ukraine, 2014c), compensation of its value is not carried out. this provision encompasses the assets of those, who support russian aggression. it should be noted that the possibility of applying sanctions was provided by the law of ukraine "on sanctions" earlier, because in accordance with art. 1 of the mentioned law, sanctions may be applied by ukraine against a foreign state, a foreign legal entity, a legal entity under the control of a foreign legal entity or a non-resident individual, foreigners, stateless persons, as well as entities that carry out terrorist activities. after the beginning of the russian armed aggression, the law of ukraine "on sanctions" was supplemented with a provision that allows the confiscation of assets belonging to a natural or legal person, as well as assets that such a person can directly or indirectly (through other natural or legal persons) dispose of. at the beginning of september 2022, the first case of the application of such sanctions and confiscation of the property of a russian citizen who supported the actions of the aggressor country that threaten the territorial integrity, sovereignty and independence of ukraine, took place. in particular, the supreme anti-corruption court of ukraine established a connection between the defendant's activities as the ultimate beneficial owner of a number of legal entities engaged in the production of unmanned aerial vehicles for the russian army, and the fact of the use of such vehicles during the russian armed aggression against ukraine. according to the results of the case, the court charged a number of movable and immovable property in the city of zaporizhzhia, which belonged to the defendant, to the state income (higher anti-corruption court of ukraine, 2022). in more detail, the procedure for forced alienation of property is regulated by the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency". first of all, it should be noted that the mentioned law defines the differences between forced alienation and seizure of property. forcibly alienated can be private or communal property, and in accordance with art. 3 of the specified law, forced alienation of property under the legal regime of war or state of emergency can be carried out with a preliminary full compensation of its value or with a subsequent full compensation of its value. the property of stateowned enterprises, state-owned economic associations, which are deprived of the right of economic management or operational management of individually determined stateowned property for the purpose of transferring it for the needs of the state under the conditions of a legal regime of war or a state of emergency, can be seized. the value of such property is not reimbursed. according to art. 4 of the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency", the last changes to which took place in july 2022, forced alienation or confiscation of property in connection with the introduction and implementation of measures of the legal regime of martial law is carried out by the decision of the military command, agreed, respectively, with the council of ministers of the autonomous republic of crimea, regional, district, http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 11 kyiv or sevastopol city state administration or the executive body of the relevant local council, except for cases of forced expropriation of property privatized during the period of martial law, which is allowed only in areas where hostilities are taking place, and is carried out by decision of the commander-in-chief of the armed forces of ukraine, without the consent of the specified authorities. in areas where hostilities are taking place, forced alienation or seizure of property is carried out by decision of the military command, also without prior agreement with the specified authorities. during the forced alienation of property, a corresponding act is drawn up, which must state: 1) the name of the military command and body that approved the decision on forced alienation or seizure of property, or the military command or body that made such a decision; 2) information about the owner(s) of the property (for legal entities full name, location and identification code; for individuals surname, first name, patronymic, permanent place of residence and identification number in the state register of individuals taxpayers and other mandatory payments, except for persons who, for religious or other reasons, refused to have an identification number, which has a corresponding mark in their passport); 3) information on the document which confirms the ownership (if available); 4) a description of the property sufficient for its identification. for immovable property, information about the location (address) must be indicated, for movable property like vehicles information about the registration number of the vehicle, model, chassis number, year of manufacture and other registration data; 5) the amount of funds paid (in case of previous full reimbursement of the value of the property). the completed act is signed by the owner or his/her legal representative and authorized persons of the military command and the body that approved the decision on the forced alienation of the property, or the military command or body that made such a decision, and is sealed with the seals of the military command and/or the specified bodies. from the date of signing of such an act, the right to private property ceases and the right of state ownership of forcibly alienated property arises. during the forced alienation of property, an assessment of such property must be carried out, which is attached to the act of forced alienation of property. forced alienation of property under martial law can occur even in the absence of the owner, in which case the act of forcible alienation is drawn up without the participation of the owner or his legal representative, but the latter have the right to review it. the procedure for property assessment is defined in art. 8 of the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency", according to which the assessment of property subject to forced alienation is carried out in accordance with the procedure established by the legislation on property and property assessment and professional assessment activities. http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 12 according to art. 5 of the law of ukraine "on appraisal of property, property rights and professional appraisal activity in ukraine", the subjects of appraisal activity are: 1) business entities individuals registered in accordance with the procedure established by law, as well as legal entities, regardless of their organizational and legal form and form of ownership, which carry out economic activity, in which at least one appraiser works, and who received a certificate of the subject of evaluation activity; 2) state authorities and local self-government bodies that have been authorized to carry out appraisal activities in the process of performing the functions of management and disposal of state property and (or) communally owned property, which have appraisers as their employees. it is obvious that in terms of war it is not always possible to appeal to the services of special subjects of appraisal activity when there is a need for forced alienation of property. in the case it is impossible to involve business entities in the process of property assessment, such assessment is carried out by state authorities or local self-government bodies in agreement with the owner. in case the owner refuses to participate in such an agreement or is absent, these bodies have the right to conduct such an assessment independently. in order to protect the interests of the owner, it is established that the property assessment, which was the basis for reimbursement, can be challenged in court. as mentioned earlier, the value of property alienated for state needs can be compensated before or after the abolition of the legal regime of martial law. preliminary reimbursement of the cost is carried out by the military command or the body that made the decision on such alienation, at the expense of the state budget before signing the act. if no previous compensation has taken place, it can be claimed within the next five budget periods (i.e. within five years) after the abolition of the legal regime of martial law. the procedure for receiving compensation for forcibly alienated property is provided for in art. 11 of the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency", according to which preliminary full compensation of the value of forcibly alienated property is carried out on the basis of a document containing a conclusion on the value of the property on the date of its assessment. in order to receive the next full compensation for property forcibly alienated under martial law, its former owner or a person authorized by him/her after the cancellation of the legal regime of martial law must apply to the competent authority at the place of alienation of the property with an application, to which should be attached a deed and a document containing a conclusion about the value of the property. peculiarities of considering applications and making payments for the purpose of subsequent full compensation for property forcibly alienated under martial law or a state of emergency are determined in the resolution of the cabinet of ministers of ukraine "some issues of implementation of full compensation for property forcibly alienated under the legal regime of martial law or a state of emergency" from october 31, 2012 (cabinet http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 13 of ministers of ukraine, 2012). the specified resolution determines the procedure for submitting an application for payment of compensation and requirements for its content. in particular, such an application is submitted to the territorial center of procurement and social support at the place of alienation of property. an act of forced alienation of property and a conclusion on the value of such property must be attached to the application. acceptance and consideration of such an application cannot be rejected. the application must be considered within ten working days from the day of its submission, but in the event of a need to verify the facts stated in the application and clarify additional circumstances, the application can be considered within one month. in addition to the demand for payment of compensation for forcibly expropriated property (if it has not been carried out beforehand), the owners have the opportunity to demand the return of such property, if it was preserved after the end of martial law. in this case, the owners have to apply to the court with a demand for its return on the basis of part 6 of art. 353 of the civil code of ukraine. renewal of ownership is based on a court decision that has entered into force. at the same time, the owner must return the amount of money, if such compensation was received, with the deduction of a reasonable fee for the use of this property. another type of restrictions on property rights under martial law can be considered limitation of the ability to dispose of property due to abolishing the access to state registers. in particular, from the beginning of the war, access to state registers, including the state register of real property rights, was suspended in order to prevent interference and abuse by the aggressor. accordingly, the owners lost the opportunity to dispose of their property, since any actions regarding real estate are impossible in the absence of access to the state register of rights to real estate. gradually, access to state registers was restored, first for officials of the ministry of justice and its territorial bodies and state registrars, then for notaries in accordance with a specially defined procedure. but as of september 2022, some restrictions on ownership still remain. in particular, the resolution of the cabinet of ministers of ukraine "some issues of state registration and functioning of unified and state registers, the holder of which is the ministry of justice, in terms of martial law" from march 6, 2022 (cabinet of ministers of ukraine, 2022) established that in terms of martial law and within one month from the day of its termination in the field of state registration of property rights to immovable property and their encumbrances is prohibited: 1) state registration of property rights to immovable property and their encumbrances on the basis of contracts certified by a notary in the period from february 25, 2022 to the day of its inclusion in the list of notaries. this provision is apparently aimed at preventing the registration of rights arising from agreements concluded by the parties during the blocking of the registers, if such an agreement was notarized and later the notary who certified it was included in the list of notaries who are allowed to perform registration actions; 2) state registration of the acquisition of property rights to immovable property earlier than the end of one month from the date of state registration of the previous acquisition of the rights to such property, if each such acquisition was made on the basis of a contract or due to the transfer of property to a legal http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 14 entity as a contribution to the authorized capital or in connection with the departure of the founders (participants) of the legal entity; 3) state registration of the ownership to immovable property on the basis of a mortgage contract under a consumer loan, except the case when the object of the mortgage is immovable property, defined in the law of ukraine "on mortgages" (verkhovna rada of ukraine, 2014b). for a certain period of time, this resolution also prohibited state registration of fiduciary ownership (trust) on the basis of contracts on the alienation of real estate or the establishment of fiduciary ownership of real estate, which were concluded on behalf of an individual the alienator (trust founder) on the basis of a power of attorney, which significantly complicated the owners' ability to dispose of their property, and affected a fairly significant category of citizens, taking into account the number of persons who left the country, were an internally displaced person or were part of the armed forces. the specified provision was canceled in the new version of the said resolution dated june 29, 2022. currently, there are also restrictions on access to the state register of real estate in certain administrative-territorial units, defined in the order of the ministry of justice "on approval of the list of administrative-territorial units, within which user access to unified and state registers, the holder of which is the ministry of justice of ukraine, is terminated under martial law" (ministry of justice of ukraine, 2022). such an approach is justified given the fact that in areas where active hostilities are ongoing, it is extremely difficult to ensure an adequate level of security and control. therefore, the restriction of the rights of owners in these regions is explained by the need to ensure the balance of private and public interests and to some extent is also aimed at the protection of property rights. 6. peculiarities of compensation for the damage caused to the property under martial law protection of right to private property under martial law is also complicated, and owners do not always have guarantees of protection of their violated rights. thus, since the beginning of the russian armed aggression, hundreds if not thousands of civilian objects have been damaged or destroyed, among them a large part of privately owned objects. according to preliminary data, as of september 1, 2022, the total number of destroyed or damaged objects of the housing stock in ukraine is about 135.8 thousand buildings, of which 119.9 thousand are private (individual) houses; 15.6 thousand apartment buildings; 0.2 thousand dormitories. the total area of damaged or destroyed objects is 74.1 million square meters, which is 7.3% of the total area of the housing stock of ukraine. according to preliminary estimates, the value expression of direct losses for the housing stock is $50.5 billion (kse institute et oth., 2022). of course, under such circumstances, a question arises regarding the protection of the violated property right and receiving compensation for damaged or destroyed property. http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 15 however, it is obvious the complexity of this issue, because the mechanism of property rights protection in this case is extremely problematic to implement. the basic principles of protection of the owners’ rights during hostilities and in occupied territories are established by international humanitarian law. the main regulatory acts in this area are hague regulations (1907) and geneva convention (1949), which contain specific provisions concerning private property in occupied territories. according to the mentioned acts, taking of private property must be justified by a legitimate military necessity. private property cannot be taken for the occupant’s own enrichment. additionally, an individual deprived of his property under such circumstances is entitled to compensation from the occupant. the occupant can prove the necessity in causing damages (“except where such destruction is rendered absolutely necessary by military operations”), and it has met the requirement of proportionality (molango, 2009). in the practice of the european court of human rights (hereinafter referred to as the ecthr), there has been a position for a long time regarding the responsibility of states for violations of rights in occupied territories or as a result of military actions. thus, in the cases of loizidou v. turkey (ecthr, 1995), cyprus v. turkey (ecthr, 2001), ilashku and others v. moldova and russia (ecthr, 2004), katan and others v. the republic of moldova and russia (ecthr, 2012), etc., the court established an exception to the principle of limiting the state's jurisdiction to its own territory. in particular, such an exception occurs when, as a result of legal or illegal military actions, the state exercises effective control over the territory outside its national territory. in such a case, the state is obliged to ensure in such territory the rights and freedoms set forth in the convention, including the right to property. thus, in the occupied territories (in particular, in the territories of the socalled "lpr" and "dpr"), the responsibility for the violation of property rights rests with the russian federation. however, at the same time, the so-called "principle of positive obligations" of the state has developed in the practice of the echr. this principle means that the state must take all available legal and diplomatic measures against foreign states and international organizations in order to continue guaranteeing rights and freedoms under the convention (ilashku and others v. moldova and russia, katan and others v. moldova and russia). therefore, if it is proven that the applicant did not take appropriate measures to ensure the guarantees of the rights of the owners in the territories of military operations, claims may be addressed against ukraine. the protection of property rights violated in terms of active hostilities is especially problematic. in such a case, the main question is who should be responsible for such violations, since it is impossible to determine who had control over the territory where the destruction occurred. thus, in georgia v. russia the ecthr has developed a position that in the case of military operations, including, for example, armed attacks, bombings or shelling carried out in the course of an international armed conflict, one cannot speak of "effective control" over specific area. the very fact of armed confrontation and hostilities between enemy armed forces seeking to establish control over the area in terms of chaos meant that there was no control over the area (ecthr, 2021). in turn, such a position means the impossibility of assigning responsibility to the aggressor in accordance with http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 16 art. 4 of the geneva convention on the protection of the civilian population in time of war (united nations, 1949). at the same time, violations of property rights during the period of occupation may be addressed to the occupying country, since the latter is responsible for ensuring human rights during the period of occupation. this is provided, in particular, by art. 5 of the law of ukraine "on ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of ukraine" (verkhovna rada of ukraine, 2014a), according to which compensation for material and moral damage caused as a result of the temporary occupation to the state of ukraine, legal entities, public associations, citizens of ukraine, foreigners and stateless persons is fully entrusted to the russian federation as the occupying state. however, the mechanism for implementing such requirements, taking into account the exclusion of the russian federation from the council of europe, will obviously be extremely difficult. apart from international rules, there are opportunities to protect property rights violated under martial law at the internal level. it is possible to claim the compensation for property damage not only from the aggressor but also from the state of ukraine. in 2022, the supreme court of ukraine established that damage caused to an individual as a result of the illegal actions of any other person (entity) can be compensated by a decision of a court of ukraine (according to the principle of general tort), and therefore, any dispute that arose on the territory of ukraine among its citizens, even if this dispute arose with a foreign country, including the russian federation, can be considered and resolved by a court of ukraine as a proper and competent court. at the same time, the decision of the supreme court dated april 14, 2022 no. 308/9708/19, nullifies the judicial immunity of a foreign state (the russian federation), provided as a general rule in art. 79 of the law of ukraine "on private international law" (verkhovna rada of ukraine, 2005), since in this case, armed aggression indicates that a foreign state has exceeded its sovereign rights (supreme court, 2022b). thus, claims for damages against the russian federation are legitimate, but the question arises regarding the enforcement of decisions made by ukrainian courts in such cases, especially their enforcement on the territory of other states. with regard to the possibility of filing claims for compensation for property damage caused under martial law to the state of ukraine, the main problem is that, as of today, there is no special law that would determine the procedure for compensation for such damage. this problem has existed for a long time and is related to the category of "legitimate expectations". back in 2014, the ecthr made a decision in the case of petlyovanyy v. ukraine, where the plaintiff was denied satisfaction of his claims on the grounds that his claim was not based on a right properly enshrined in national legislation. in this case, the applicant complained that he did not receive compensation for the damage, namely, he was not compensated by the state for property damage as a victim of a crime, although such compensation is provided for by article 1177 of the civil code of ukraine. however, the court refused to satisfy the demand, referring to the fact that in accordance with part 2 of art. 1177 of the civil code of ukraine, the conditions and procedure for compensation for property damage caused to an individual, who was victim of a crime, are established by law, but such a law has not been enacted. thus, the ecthr concluded that “entitlement http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 17 to compensation from the state to victims of crime under the above article of the code was never intended to be unconditional” (ecthr, 2014). and since the applicant did not have a sufficiently established claim for the purposes of article 1 of protocol no. 1, he cannot claim that he had a "legitimate expectation" of obtaining effective enjoyment of a property right (ecthr, 2014). the worst thing in this case is that instead of taking into account the conclusions of the ecthr in order to develop special legislation that would allow the exercise of the right to demand from the state compensation for damage caused as a result of a crime, including war crimes, the mentioned decision of the ecthr became the basis for the decisions of national courts to refuse satisfaction claims for damages based on art. 1177 of the civil code of ukraine. in particular, in 2019, the supreme court of ukraine refused to satisfy the demands of the victim of a crime, stated on the basis of art. 1177 of the civil code of ukraine with reference to the case of petlyovanyy v. ukraine and the fact that the legislation of ukraine does not provide for the procedure for compensation by the state for damage caused by a crime (supreme court, 2019). in 2022, in terms of the war, national courts use same approach regarding compensation for damage caused by war crimes. thus, in the resolution of the supreme chamber of the supreme court of may 12, 2022, in case no. 635/6172/17, it is noted that the right to receive compensation for damage caused by a crime depends on the mechanism for such compensation, which must be established by law. in turn, the law, which would regulate the procedure for compensation from the funds of the state budget of ukraine for damage caused by a terrorist act, has not been enacted. moreover, the legislation of ukraine lacks not only the procedure for payment of the specified compensation, but also the clear conditions necessary to declare a property claim against the state for the provision of such compensation. therefore, the right to compensation by the state in accordance with the law for damage caused by a terrorist act, provided for in article 19 of the law of ukraine "on combating terrorism" (verkhovna rada of ukraine, 2003b), does not give rise to a legitimate expectation of receiving such compensation from the state of ukraine without a special law (supreme court, 2022a). none the less, the analysis of the ecthr practice reveals, that it is possible to appeal the court not only after exhausting all national remedies. thus, in the case of sargsyan v. azerbaijan (ecthr, 2015), the court found that the government of azerbaijan had failed to fulfill its burden of proving that the applicant had an effective legal remedy, the use of which could ensure the rectification of the situation regarding his complaints submitted with reference to the convention and would have sufficient chances of success. thus, there were no effective remedies under azerbaijani law which would be accessible and sufficient in practice. in sandu and others v. russia and moldova (ecthr, 2018), the court also concluded that, to be effective, a remedy must be capable of directly redressing the contested state of affairs and must offer a reasonable prospect of success. in the case of akdivar and others v. turkey (ecthr, 1998), the court stated that there is no obligation to use means that are inadequate or ineffective. thus, when considering the issue of exhaustion of domestic legal remedies, the court must take into account the duration of consideration of cases on compensation for damage caused during aggression by the russian federation (cases on compensation for damage caused as part of an anti-terrorist operation have been http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 18 going on for several years and there is still no positive judicial practice on this issue) and the ineffectiveness of the investigation of crimes based on the facts of damage or destruction of property. taking these facts into account should result in the recognition of the absence of effective remedies within the national jurisdiction (naumenko, 2020). consequently, the applicants have no obligation to exhaust domestic remedies (see the case of katan and others v. moldova). however, it is important to apply to the authorized bodies with a corresponding statement about destruction or damage of property. the experience of bosnia and herzegovina and kosovo might be of interest in the matter of protecting the rights of owners injured as a result of military actions. in these countries, special ad hoc bodies were created to restore the rights of owners: the commission for real property claims of displaced persons and refugees in bosnia and herzegovina and the housing and property directorate and housing and property claims commission in kosovo. these organizations were created with the support of the un as temporary ad hoc bodies of sui generis. they function as mass claims resolution bodies of a largely administrative nature. commissions consist of local and international members. this approach provides important advantages. the presence of international commissioners guarantees impartial and fair claims adjudication in accordance with international standards, and the involvement of local adjudicators ensures full conformity with local legal standards and systems and helps to achieve a proper integration of the final decisions into the domestic legal order (das, 2004). the experience of the commissions in obtaining evidence of ownership of the owners' property can be useful for ukraine. given the circumstances under which the owners left their homes, many of them did not have proper proof of ownership. nevertheless, the commissions decided not to rely solely on oral arguments, but allowed all available written evidence to be submitted. at the same time, the organizations took on a fact-finding role. the commissions have collected all extant cadastral and census records and entered these data into a uniform database, against which claims can easily be checked (das, 2004). nowadays in ukraine, the issue of evidence can be solved more effectively thanks to the creation of a special register of property destroyed and damaged as a result of russian aggression. the information about the damaged or destroyed property can be submitted to the registry through the diya electronic portal. as of august 2022, more than 256,000 reports of damaged property were submitted to the registry. the register will be filled with data based on the results of inspections of buildings by special commissions created by local self-government bodies or military-civilian administrations (ministry of digital transformation of ukraine, 2022). in case the experience of the countries of the former yugoslavia will be implemented in ukraine, the ukrainian legislator should take into account two important circumstances. first, the mechanism for restoration of owners' rights in bosnia and herzegovina and kosovo was able to ensure only the restitution of property rights, but not compensation. since previous plans to create a fund to pay compensation to owners were not implemented due to the lack of funds. secondly, at the first stages of the work of the commissions, http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 19 the owners were faced with the problem of implementing the decisions made by the commissions, since the national legal system did not provide for the mechanism for the implementation of these decisions. therefore, in case of implementing a similar mechanism for renewing the rights of owners, the ukrainian legislator must simultaneously adopt the relevant normative acts regarding the implementation of the decisions of the institution created for this purpose. as of november 2022, the verkhovna rada registered the draft law on compensation for damage and destruction of certain categories of immovable property as a result of hostilities, terrorist acts, and sabotages caused by the military aggression of the russian federation no. 7198 of march 24, 2022, however, no changes occurred in the process of its adoption since april 2022. when working on draft laws in the field of compensation for damaged or destroyed property as a result of russian aggression, it is worth taking into account the experience of other countries in this matter. in particular, in 2006, georgia adopted the law "on property restitution and compensation to persons injured on the territory of georgia as a result of the conflict in the former south ossetian autonomous region" (hereinafter the law). the law provides for the so-called property restitution the return to the legal owner of housing or other immovable property on the territory of georgia, lost as a result of the conflict. in art. 5 of the law the right of all forcibly displaced persons and other persons to return to their original residence is recognized. owners of housing or other immovable property lost on the territory of georgia as a result of the conflict have the right to receive the immovable property or, in the event of the impossibility of returning that housing or other immovable property, the right to receive adequate housing of the same value, and in the event of the impossibility of providing adequate housing in return the right to receive compensation for property damage. same like in bosnia and herzegovina and kosovo, the task of paying compensation is entrusted to the commission for restitution and compensation, which consists of representatives of the georgian and ossetian parties to the conflict, as well as subjects of international law. the unrecognized turkish republic of northern cyprus also passed a law on restitution and compensation to property owners. according to the law for the compensation, exchange and restitution of immovable properties, which are within the scope of sub-paragraph (b) of paragraph 1 of article 159 of the constitution, owners can submit applications regarding movable and immovable property, which are considered by special immovable property commission. the commission can make a decision on the restitution of real estate, offer the applicant another real estate in exchange, or make a decision on the payment of compensation. at the same time, the applicant may also demand compensation for damages caused by the loss of the opportunity to use real estate, and moral damages (the republican assembly of the turkish republic of northern cyprus, 2005). as we can see, the methods of solving issues related to the protection of the rights of owners affected by military conflicts in most countries with similar experience are similar. in particular, this concerns the adoption of a special law on restitution or compensation for damage and the creation of a special body responsible for processing applications. this experience should be followed by ukraine, starting first of all with the adoption of special http://10.17561/tahrj.v20.7579 the right to private property under martial law in ukraine the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 20 legislation on the restoration of the rights of owners and compensation for the damage caused to them. 7. conclusions the right to private property in accordance with the legislation of ukraine is one of the fundamental human rights, which is guaranteed at the level of the basic law of ukraine the constitution of ukraine. ukraine guarantees the inviolability of the right to private property and the inadmissibility of deprivation of the right to property, except in cases established by law. thus, the right to private property may be restricted or terminated only in cases and in the manner prescribed by law. such an approach guarantees the owner's rights, but at the same time establishes that the right to private property is not unlimited and should be balanced with the interests of the whole society. restrictions on the use of property related to public necessity, as well as cases where such property harms individuals, society, worsens the environmental and economic situation, etc. are allowed. deprivation of the right to private property is allowed only in exceptional cases specified by law and, as a rule, subject to prior fair compensation. in terms of the war in ukraine the law of ukraine "on approval of the decree of the president of ukraine "on the introduction of martial law in ukraine" dated february 24, 2022 gives grounds for the limitation of the right to private property, including forced alienation of private property (requisition). as a rule, such alienation is made on the basis of previous and full compensation of the expropriated property. however, in some cases it is possible to compensate the value of property alienated for state needs after the abolition of the legal regime of martial law. there are several special laws in ukraine, which regulate the mechanism and procedure of the forced alienation of the property in terms of the war. in particular, it is the law of ukraine "on the legal regime of martial law" and the law of ukraine "on the transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency". restrictions of the right to private property under martial law are reflected also in the limitation of the ability to dispose of property due to abolishing the access to state registers. at the beginning of the war access to state registers, including the state register of real property rights, was suspended in order to prevent interference and abuse by the aggressor. accordingly, the owners lost the opportunity to dispose of their property, since any actions regarding real estate are impossible in the absence of access to the state register of rights to real estate. gradually, access to the state register of rights to real estate was renewed, but some restrictions remain as well as the access remain closed in certain administrative-territorial units, where active hostilities are ongoing, as it is impossible to provide the appropriate control over the actions regarding private property in those areas. another issue which arises regarding the right to private property in terms of the war is compensation for damage caused in terms of the war. the possibilities of owners to protect their rights are restricted as there is no special law, which regulates the procedure http://10.17561/tahrj.v20.7579 kateryna nekit the age of human rights journal, 20 (june 2023), e7579 issn: 2340-9592 doi: 10.17561/tahrj.v20.7579 21 of compensation by the state the damage caused to victims of crimes. despite the fact the possibility to get compensation from the state for the damage caused by a crime if the offender was not identified or found is provided by the civil code of ukraine, the absence of a special law, which would establish the mechanism for such compensation, in fact nullify the right to claim the compensation from the state. the established practice of the supreme court of ukraine, based on the decision of the ecthr in the case petlyovanyy v. ukraine, according to which in such cases the owner cannot claim that he had a "legitimate expectation" of obtaining effective enjoyment of a property right, was extrapolated to the claims for compensation of the damage caused by war crimes. at the same time, violations of property rights during the period of occupation may be addressed to the occupying country, since according to ukrainian legislation, the latter is responsible for ensuring human rights during the period of occupation. however, the mechanism for implementing such requirements, taking into account the exclusion of the russian federation from the council of europe, will obviously be extremely difficult. thus, the protection of property rights in terms of the war remains an extremely problematic issue, as mechanisms for compensation for property damage are very difficult to implement. none the less, till september 2022 it remained possible to appeal to the ecthr with a lawsuit against the aggressor country to protect the violated property right, since despite the exclusion of the russian federation from the council of europe, the court will consider cases submitted before september 16, 2022. also, in ukraine, in order to effectively protect the rights of owners affected by russian armed aggression, it is necessary to adopt special legislation aimed at ensuring restitution or payment of compensation for damaged or destroyed property, as well as the creation of special institutions for the purpose of considering the relevant statements of owners and the mechanism for implementing the decisions of such institutions. acknowledgement this research was supported by the volkswagen foundation. references alekseev, s. 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(2014b). on mortgages: law of ukraine of june 5, 2003. no 898-iv. available at: https://zakon.rada.gov.ua/laws/show/ 898-15#text verkhovna rada of ukraine. (2014c). on sanctions: law of ukraine of august 14, 2014. no 1644-vii. available at: https://zakon.rada.gov.ua/laws/show/164418#text verkhovna rada of ukraine. (2015). on the legal regime of martial law: law of ukraine of may 12, 2015. no 389-viii. available at: https://zakon.rada. gov.ua/laws/show/389-19#text verkhovna rada of ukraine. (2022). on approval of the decree of the president of ukraine “on the introduction of martial law in ukraine”: law of ukraine of february 24, 2022. no 2102-ix. available at: https://zakon.rada.gov.ua/laws/ show/2102-20#text vetrova, d. (2006). antropologo-pravovoe soderzhanie prava sobstvennosti. sovremennoe pravo, 10, 43-46. received: 17th november 2022 accepted: 14th march 2023 http://10.17561/tahrj.v20.7579 https://zakon.rada.gov.ua/laws/show/898-15#text https://zakon.rada.gov.ua/laws/show/898-15#text https://zakon.rada.gov.ua/laws/show/1644-18#text https://zakon.rada.gov.ua/laws/show/1644-18#text https://zakon.rada.gov.ua/laws/show/389-19#text https://zakon.rada.gov.ua/laws/show/389-19#text https://zakon.rada.gov.ua/laws/show/2102-20#text https://zakon.rada.gov.ua/laws/show/2102-20#text the right to private property under martial law in ukraine abstract 1. introduction 2. theoretical framework and methodology 3. constitutional guarantees of the right to private property in ukraine 4. general provisions on the right to private property under civil legislation of ukraine 5. restrictions of the right to private property under martial law in ukraine 6. peculiarities of compensation for the damage caused to the property under martial law 7. conclusions references from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 1 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings cecilia gebruers1 abstract: the paper focuses on the way human rights law has been incorporating notions of intersectionality through legal instruments as well as through human rights courts’ decisions. the overall goal is to expose the shortcomings of the current conception of intersectionality as it has been applied by the inter-american court, which, i argue, derive from a categorical understanding of group and identity-based rights transplanted from the notion of structural discrimination. the paper argues that approaching human rights violations by means of categorical reasoning is detrimental to intersectional interests, since it perpetuates the problem that intersectionality seeks to overcome in the first place, and suggests that cutting across categories is a potentially more fruitful pathway for the future of intersectionality in the legal field. keywords: intersectionality, structural discrimination, categories, identity, gender discrimination. i. introduction the paper focuses on the way human rights law has been incorporating notions of intersectionality through legal instruments as well as through human rights courts’ decisions within the period 2010-2017. the overall goal is to expose the shortcomings of the conception of intersectionality as it has been applied by the inter-american system, which i argue, derive from a categorical understanding of group rights developed in the notion of structural discrimination. through a reading of the inter-american system reports and jurisprudence it will be argued that although a legal reform towards an intersectional discrimination is one of the paths that intersectionality might be heading towards, this form is unlikely to have meaningful impact. the fixed categories that emerged from a notion of structural discrimination have proved insufficient to grasp the complex forms of oppression involved in concrete cases. on the contrary, they have begun to dissolve the powerful claim that the concept seeks to articulate. the paper exposes how approaching human rights violations by means of categorical reasoning is detrimental to intersectional interests, since it perpetuates the problem that intersectionality seeks to overcome in the first place. being exhorted or aware of an intersectional guiding principle is not enough when the very same categories that represent only the most privileged members of the group are shaping the analytical framework. the article is part of a larger study that has sought to operationalize intersectionality in human rights law from an interdisciplinary perspective. therefore, the study’s main objective is to provide a diagnosis of the actual 1 postdoctoral fellow at the argentinian national council for scientific and technical research (conicet) based at the interdisciplinary institute for advanced social studies of the university of san martin (idaesunsam), argentina (ceciliagebruers@gmail.com). http://10.17561/tahrj.v20.7629 maillto:ceciliagebruers@gmail.com from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 2 implications of the intersectional approach in human rights law based on how it has been applied between the years 2010-2017, in order to revise its actual achievements for further operationalizing the concept. in addition to those reasons, the author understands intersectionality as a concept in constant movement and does not pretend to be conclusive. the present article, therefore, is a necessary pause to look at the trends within a time period, and think about what is necessary to adjust. there have been changes in the way the principle of non-discrimination is understood. since the 2000s, the inter-american system has moved from applying a formal principle of non-discrimination, to a more substantial understanding of discrimination such as “structural disadvantages” and “state of vulnerability” (ronconi, 2018; barbera & wences, 2020). legal scholars explain them as the material sides of the principle of equality and non-discrimination that expose unequal distribution of power (bórquez & clérico, 2021). following this path – with steps backwards and forwards, ambiguities and confusions– in the early 2010s the inter-american system arrived at the notion of intersectional discrimination. in recent decisions, the inter-american system has acknowledged the existence of structural patterns of discrimination against different groups, such as indigenous peoples, women, and people living in poverty. although in some respects this can be considered a progressive approach —as will be seen below— the idea of “systematic” or “structural” patterns of discrimination has not yet grasped the differences within the groups. a notable example is the case velásquez paiz et al v. guatemala, where the court focused on the large number of women who were murdered, without taking into consideration the fact that certain groups of women were overrepresented (sosa, 2017, p. 95). i use the example of the group category “women” to argue that it is built from a structural dimension, that in turn, led to fixed notions of group rights and limits the ability to see hierarchies and obscured specificities within the group. for this purpose, the first section will develop notions of anti-discrimination and the limitations of this framing that have been addressed by legal scholars. the revision of human rights law based on the inter-american system and their jurisprudence will demonstrate how this limited approach was overcome through a notion of structural discrimination, while at the same time backfired by reifying the analytical categories. cases where structural discrimination against women is argued will serve as examples of how the inter-american court on human rights and the inter-american commission have expanded the approach to discrimination and applied it to specific cases. while the first part of the paper will carefully expose how categories have been construed since the early 2000s and have resulted in a legal form of discrimination called structural discrimination, the second part will study the time period between 2010-2017 to observe how human rights law intends to address the overlapping of different forms of discrimination, mostly referred to as an “intersectional approach”, but also as an “holistic approach”, and as “adding vulnerabilities”, among others. the second section, in other words, will address the efforts to provide definitions and codify intersectionality in legal instruments and expose why they have proved problematic. for this, the section will also study how intersectional approaches have been applied by http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 3 the inter-american court on human rights in the cases gonzalez lluy v. ecuador and i. v. v. bolivia. revising the case law will allow us to identify what the “intersectional approach” adds to the previous analytical framework, what the legal implications of this proto-type of discrimination are, and also the limitations of the current scope and how it can be expanded. ii. the emergence and application of structural discrimination against women in human rights law the principle of non-discrimination, —which is limited to verifying that those individuals who belong to the category listed by the legislator are treated equally— (clérico et al., 2013, p. 115) has been questioned for not being able to give an account of the historical and social conditions that leave certain groups in disadvantaged positions. legal scholar julie suk unpacks this critique within the field of work discrimination, explaining why the principle of non-discrimination applied to challenge unequal working conditions imposed on women with kids is useful for only certain women: the concept of discrimination does nothing to change the structural problem, which is that the workplace is designed around the assumption that the ideal worker is a person (i.e., a man) with no significant family responsibilities. so, it’s a trade-off: the concept of discrimination targets some problems and not others. (...). if structural transformation of the workplace is the answer to that question, the concept of discrimination is not going to give us a lot of mileage (mercat-bruns, et. al., 2016, p. 170). moreover, kimberle crenshaw has argued that “faith in formal equality’s triumph over white supremacy was unwarranted; formal equality did little to disrupt ongoing patterns of institutional power and the reproduction of differential privileges and burdens across race.” (crenshaw, 2011, p. 1312). authors such as owen fiss (1976) have also stressed that the formal principle of non-discrimination is rooted in an individualistic notion of equality and suggest switching to the notion of disadvantaged groups, which adds to the principle of non-discrimination the principle of non-subordination based on the presence of systemic patterns of social, economic and political exclusion (saba, 2005, p. 139). finally, the author consuelo chacartegui exposes the limitations of the principle of non-discrimination in matters of evidence (2010, p. 60, 61). she takes a case from british law, which, although it recognizes multiple grounds of discrimination, lacks a comprehensive approach, and, therefore, demands separate proof of each one. bahl v. the law society refers to an asian woman who claimed to be discriminated against by her employer on the grounds of gender and race. the court of first instance decided in her favor, acknowledging that, compared to her male co-workers, race and gender compounded had caused the discrimination. the appeals court, on the contrary, considered that each discrimination ground should be weighed separately. this reasoning led to the same unfair decision as the famous degraffenreid v. general motors case that inspired crenshaw’s notion of intersectionality (crenshaw, 1989). as a result, the employer argued that he neither discriminated against women —taking white women as a parameter— nor asian people —in this case, making the comparison with non-asian men. http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 4 the principle of non-discrimination is incorporated in article 1(1) of the american convention on human rights and establishes the right of every person to enjoy all stated rights “without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” (organization of american states 1969). by including a prohibition of discrimination by “any other social condition” the norm becomes a general prohibition of discrimination (shelton, 2009, p. 273). similar to the notion of article 14 from the european system as a “parasite” clause, in the advisory opinion 4/84 (iacrthr, 1984), the inter-american court on human rights pointed out that article 1(1) depends for its application on a right guaranteed by the convention. moreover, the advisory opinion made clear that to be unlawful, the difference in treatment must lack a legitimate purpose and lead to situations that are contrary to justice, to reason or to the nature of things (par. 57). the inter-american system has been expanding its interpretation of the principle of non-discrimination in a way that encompasses the notion of structural discrimination. following víctor abramovich, this responds to a regional scenario in which states are not systematically planning human rights violations, but rather cannot prevent arbitrary practices carried out by their agents, or hold those subjects accountable for their acts (abramovich, 2009, p. 17). this is a scenario in which representative democracies have institutional deficiencies that coexist with high levels of inequality and exclusion (p. 10). therefore, the notion of structural discrimination is understood as a tool of the interamerican system to face one of its biggest challenges, which is to improve the structural conditions necessary to ensure respect for human rights. since the early 2000s, different reports and decisions from the inter-american system have informed the current scope of the notion of structural discrimination, going from general definitions that present the context as a fact to take into account, to more sophisticated ones that aim to disentangle the state responsibility that can be attributed to structural discrimination. the groundbreaking case in the development of the notion of structural discrimination is maria da penha fernández v. brazil from 2001, where the inter-american commission on human rights refers to a “systematic pattern”, when they affirm: “this case must be analyzed in a context of gender-based discrimination by brazilian state organs, which serves to reinforce the systematic pattern of violence against women and impunity in brazil” (iachr, 2001a, para. 51). a further and more elaborate development of the concept is found in the broadly known report “access to justice for women victims of violence in the americas” issued in 2007. here, the inter-american commission on human rights explains that non-discrimination can be broadened when associated with the idea of ending the subordination of women as a group, also referred to as the principle of anti-subordination: “by this definition of non-discrimination, discrimination against women is unacceptable not just because it presupposes unfair treatment for some individual women, but also because its function is to subordinate women as a group and to thereby create and perpetuate a gender hierarchy. discrimination is regarded as one of a number of social factors responsible for the hierarchy of the sexes that leaves women at the bottom of the pyramid” (para. 75). furthermore, the report affirms that structural approaches acknowledge the fact that “for http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 5 certain sectors of the population, special equalizing measures have to be adopted” (para. 99). such different treatments are grounded in the limiting effects and encumbering of access to some service or good or the exercise of a right that equal treatment would have provided (para. 99). more recently the case of the workers of the hacienda verde delves deeper into this type of discrimination and further develops the legal implications of a notion of structural discrimination (iacrthr, 2017, para. 110-111). the responsibility of the state in the case follows the precedent of massacre de pueblo bello, and is therefore grounded in failure to adopt positive measures in accordance with the special protection needs of a subject of law, “be it because of its personal conditions or the specific situation in which s/he is found.” (para. 316). following this reasoning, that states are obliged to generate the necessary conditions in order to avoid violations of the right not to be subjected to slavery, and specifically to prevent state agents and particular individuals from infringing it (para. 317). structural discrimination, hence, is a notion of equality based on the acknowledgement of the existence of a disadvantageous position for certain populations that need the adoption of special measures to mitigate such a situation. still, once the principle of equality and non-discrimination is interpreted as a principle of non-subordination, a further critique aims at the monolithic vision of the legal order that it might trigger. the visionary article feminist approaches to international law written by hilary charlesworth, christine chinkin and shelley wright in 1991 developed a critical view of the path that human rights law was undertaking, and argued that a feminist transformation of international law should not be limited to refining or reforming existing law. instead, they affirm that the reform should be heading towards creating international regimes with a focus on “structural abuse and the revision of our notions of state responsibility” (charlesworth et al., 1991, p. 644). furthermore, they foresee that it could also challenge the centrality of the state in international law and to the traditional sources of international law (p. 644). indeed, beginning in the early 2000s, structural approaches to discrimination against women were applied both by the inter-american commission as well as by the court, however, as will be seen, the commission has taken a more progressive position than the court, especially in their reports. barbera & wences (2020) identified three trends in the inter-american court on human rights jurisprudence on gender discrimination: first, the ones that focus on women as a disadvantaged group and second, those that look at the social structure that enables discrimination. in the third place she located the intersectional trends that make gender converge other discriminating factors. the inter-american commission on human rights addressed for the first time the principle of non-discrimination of article 1.1, in relation to women, in the case of maría eugenia morales sierra v. guatemala (iachr, 2001b, para. 52). the case referred to discriminatory norms included in the civil code of guatemala that attributed the authority to represent the marital union, and the right to administer marital property to the husband, and only exceptionally to the wife; at the same time, the code prescribed that the wife had the duty to provide care and domestic work for the children and the home, and explicitly limited professional engagement, allowing it only if it does not impede her primary role http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 6 as a mother and homemaker. the commission stated that the laws discussed operate by imposing a system according to which approximately half of the married population is subordinated to the other half in essential matters. moreover, they referred to a global effect of such norms that deprive married women of their autonomy, and impede the ability of the victim of such inequality to exercise a host of other rights and freedoms (para. 38). further on the interpretation of the principle of non-discrimination from a structural perspective, maría da penha fernándes v. brazil is about a case where it was not a blatant discriminatory norm, but rather questioned male impunity in a case of gender based violence. famously, the commission applied the belem do para convention for the first time and refered to the existence of a “systematic pattern” of discrimination. maria da penha fernándes’ ex-husband attempted to murder her and the domestic court failed to prosecute and convict him. the impunity that he enjoyed was seen as exacerbating the direct consequences of the aggression and a sign of tolerance by the state, not just as an individual case, but as a pattern. hence, the commission concludes, “[t]he condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women” (2001a, para. 55). in contrast with the case of maría morales sierra, here the commission deals with a case of a human rights violation that involves individuals –not the state–, as the direct actors. in this sense, the commission concludes that the state violated articles 8 and 25 of the american convention, and refers to article 7 of the convention of belem do para to affirm that states have a duty of “preventive diligent action” to stop violence against women, even in cases where this is carried out by individuals and not state actors. in this sense, víctor abramovich explains that the structural situation of the group of women affected by the violence, on the one hand, triggers the duty to prevent in the head of the state and its reparatory obligations in the particular case, but it also explains the general recommendations ordered by the iachr to the state, which include changes in the public policies, the legislation and in the judicial and administrative procedures. (abramovich, 2009). however, continuing with abramovich’s reasoning, it is important to highlight that whether the agents had information about the risk to maria da penha’s life before the attack happened was not controverted, and neither were the possibilities of the state to prevent that from occurring (abramovich, 2010). the next developments of the iachr on structural discrimination against women are in the case of jessica lenahan v. united states, from july 2011. in 1999, jessica lenahan, and her daughters, leslie, katheryn and rebecca gonzales, who were victims of domestic violence, obtained a restraining order against her ex-husband, simon gonzales. that same day mr. gonzales kidnapped the daughters. that night ms. gonzales called the police department eight times and every time she asked them to try to find her daughters and explained that she had a restraining order. however, the police acted in a fragmented, discordant and unprofessional way. they did not follow the terms of the restraining order and even affirmed that “it was a little ridiculous to scare them saying that the girls are gone”. the morning after, simon gonzales drove his truck to the police department http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 7 and opened fire through the window, and the police fired back. as a consequence of the shooting mr. gonzales died. the bodies of the three girls were found in the truck, leaving many things unknown that still remain unresolved today, such as the cause, time and place of death. in the report lenahan v. united states the commission focused on the age of the girls, noting that certain groups of women can be discriminated against on the basis of more than one factor at a time, and that this increases their chances of being subjected to violence (para. 113). in addition, the report develops the principle of due diligence according to which states can incur on international responsibility for not preventing, investigating, sanctioning and repairing acts of violence against women. again, the principle of due diligence under certain circumstances can entail state responsibility for states, even when in certain cases violence against women —isolated from context— is an action by private actors. the commission, therefore, understands that the duty of the states before these crimes also entails all the measures directed towards preventing the discrimination that perpetuates this problem (para. 126). following this principle, states must adopt the necessary measures in order to change patterns of social and cultural behavior of men and women, and eliminate prejudice and consuetudinary practices based on inferiority or superiority of one of the sexes, and that perpetuate the imposition of stereotypes on both men and women (para. 126). the importance of contextual and structural elements, and their impact on state responsibility, are further developed by the inter-american court on human rights in the cases gonzalez et al. v. mexico, (“cotton fields case”); veliz franco et al. v. guatemala and velázquez paiz et al. v. guatemala. in the paradigmatic “cotton fields case” (iacrthr, 2009) the court developed human rights standards for violence against women perpetrated by private actors for the first time. the case extensively developed the principle of due diligence in relation to the case of three women that had been kidnapped and later found dead in a cotton field. the court also introduced the term feminicide in their reasoning, without providing a definition, but explaining that the expression “homicide of women for gender reasons,” is also known by the term feminicide (par. 143); however, mentioning the term contributed to the advancement of legal reforms around the term femicide/feminicide in the latin american region, such as the typification of femicide which exposes the contextual implications of gender violence within the crime. the court looked not only to the individual facts, but also to women as a collective affected by a structural situation, following the doctrine of foreseeable and inevitable risk (abramovich, 2010). the doctrine of foreseeable and inevitable risk sets a standard for determining when the state is responsible for human rights violations committed by private actors. in order to attribute responsibility according to the doctrine of the foreseeable risk, it is necessary to look at the particular circumstances of the case. the duty to adopt preventive and protective measures is conditioned by the knowledge of a situation of real and immediate risk for an individual or a determined group of individuals, and by the reasonable possibility of preventing that risk. looking at this definition, victor abramovich finds four main elements. first, it must be a concrete risk (not hypothetical, eventual or remote) with a certain possibility of materialization; second, the risk must also be specific, meaning that the situation must be circumscribed to an individual or group and not a general situation http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 8 of uncertainty that affects an overall community; third, the state must have been either aware of the risk, or should have reasonably known or foreseen it2; fourth, the risk must be preventable, therefore, taking all the necessary measures the state must be able to stop the situation and prevent the risk from concretizing (abramovich, 2010). we clearly see how incorporating the context or structural elements of the case has a legal consequence in the attribution of state responsibility, however, the “cotton field case” shows disagreements about the moment from which the state is responsible. the iachr argues that, even though the state must be responsible due to the repeated pattern of violence, it is internationally responsible only from the moment they are aware of the disappearance of the three victims; it does not act in an effective way in order to avoid the crimes that were then committed. the court, however, concluded that the responsibility must be based on the theory of risk, coupled with a reinforced duty of due diligence grounded on article 7 of the convention of belem do para, 258. the foregoing reveals that states should adopt comprehensive measures to comply with due diligence in cases of violence against women. in particular, they should have an appropriate legal framework for protection that is enforced effectively, and prevention policies and practices that allow effective measures to be taken in response to the respective complaints. the prevention strategy should also be comprehensive; in other words, it should prevent the risk factors and, at the same time, strengthen the institutions that can provide an effective response in cases of violence against women. furthermore, the state should adopt preventive measures in specific cases in which it is evident that certain women and girls may be victims of violence. this should take into account that, in cases of violence against women, the states also have the general obligation established in the american convention, an obligation reinforced since the convention of belém do pará came into force (para. 258). the positions taken by the parties respond to attributing different weight to the situations of risk, and therefore, different expectations of the state’s actions and responsibilities. one is the general context of risk of violence against women that has an effect on the “particular risk” in which the victims find themselves after being kidnapped, but before they are found dead. the first one has an effect on the second moment, since it triggers an expectation in the response that the state should provide, given a “specific risk”. according to the court, however, it is only from the moment the state knows 2 the third step deserves a special explanation, since the risk may not have been known. it could also be the case that the state “should have reasonably known or foreseen the risk”. this is because, if we take the state’s data and monitoring obligations on behalf of certain vulnerable populations into consideration, the state is not allowed to argue that it was unaware of the situation of violence that they were suffering. in this line, abramovich explains that “some risks are foreseeable due to its magnitude, its extension in time, because they respond to practices or systematic patterns, that exclude the possibility of the state to argue lack of awareness. victor abramovich, responsabilidad estatal por violencia de género: comentarios sobre el caso “campo algodonero” en la corte interamericana de derechos humanos, anuario de derechos humanos, 174 (2010). http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 9 of a “specific risk” that the state is responsible for not acting with due diligence3.the reasoning is problematic to the extent that it could lead to the conclusion that if this were the case for direct homicides, the state would not have been internationally responsible for their deaths (abramovich, 2010). in spite of this interpretation, which might be seen as a limitation in the state’s responsibility also at the level of reparations, it is worth stressing that the context did have repercussions at the time of determining the reparations. in this sense, the court observes that the context of the maquilas4 is of importance to design the reparations, which must be directed not only to restitute, but also to rectify (para. 450). more recently, the cases veliz franco at al v. guatemala (2014) and velázquez paiz et al v. guatemala (2015) further developed the notion of systematic patterns of human rights violations in relation to situations involving the disappearance and later death of young girls. the veliz franco case reproduced part of the 2011 council of europe convention on preventing and combating violence against women and domestic violence and affirmed that violence against women is an expression of the historic unequal balance between men and women which has led to domination and discrimination of women, depriving women of their full emancipation, concluding that “the structural violence against women is based on their gender” (para. 207). following the framing of the commission, the court attributed state responsibility for not adopting an integral and coordinated policy, supported with the necessary public funding to grant that cases of violence against women are prevented, investigated, sanctioned and repaired (para. 262). still, the court limited the scope of the responsibility to the deficiencies during the investigation of the murder of the victim. the lack of due diligence is based on not conducting the investigation in a reasonable timeframe, which is also a consequence of not having clear rules and protocols guiding the investigation of these cases. following this line of reasoning, the velasquez paiz case delved deeper into the importance of observing the context in order to determine the systematic patterns of discrimination. the court brought to the analysis political, social and historical contextual elements in order to characterize certain facts as “parts of a systematic pattern of human 3 the reasoning of the court on this aspect is explained at length in paragraph 283: with regard to the second moment – before the discovery of the bodies – given the context of the case, the state was aware that there was a real and imminent risk that the victims would be sexually abused, subjected to ill-treatment and killed. the tribunal finds that, in this context, an obligation of strict due diligence arises in regard to reports of missing women, with respect to search operations during the first hours and days. since this obligation of means is more rigorous, it requires that exhaustive search activities be conducted. above all, it is essential that police authorities, prosecutors and judicial officials take prompt immediate action by ordering, without delay, the necessary measures to determine the whereabouts of the victims or the place where they may have been retained. adequate procedures should exist for reporting disappearances, which should result in an immediate effective investigation. the authorities should presume that the disappeared person has been deprived of liberty and is still alive until there is no longer any uncertainty about her fate. gonzález et al. (“cotton field”) v. mexico, preliminary objection, merits, reparations, and costs, judgment, inter-am. ct. h.r. (ser. c), no. 205, (iacrthr 2009), para. 283. 4 the maquilas are a type of industry that imports raw materials and machinery with the purpose of export them. the main productions are textile industry; however, they also produce electronics, furniture, chemicals, toys, among others. see k. pantaleo, “gendered violence: murder in the maquiladoras”. in sociological viewpoints of the pennsylvania sociological society, (pantaleo, 2010, p. 14). http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 10 rights violations, a practice applied or tolerated by the state, or as part of massive and systematic or generalized attacks against one sector of the population” (para. 43). interestingly, the court explicitly said that the contextual elements that were brought to the debate will have implications in the determination of the international responsibility of the state, the assessment of evidence, the need of reparation measures, and the standards regarding the obligation to investigate such cases (para. 43). the situation of the jurisprudence that has been described shows the evolution of a way of framing structural forms of violence, from a mere contextual fact to the subsequent expansion of the state’s responsibility derived from them. the situations that led to the recognition of structural discrimination share the characteristic of being acts performed by private actors, such as gender based violence in the context of domestic violence by male ex-partners. the notion of structural discrimination allowed an understanding of these acts within a continuum of violence that is then incardinated in the institutions such as the police and the judiciary. still, the decisions arbitrarily eliminate economic and ethnic elements that are also factoring into the situations addressed in cases of violence against women. scholars have called attention to the lack of the element of “class”, especially in the cases of violence against women in cotton field and veliz franco. cotton field is a case where not only the element of gender is present, but it also takes place in the context of the maquilas in mexico. this type of industry should not be detached from the context of neoliberal economic policies implemented during the 80s in mexico and 90s in central america (bórquez, 2017, p. 89). veliz franco, on its part, refers to the murder of a girl in a context of violence against women, however, it focusses on the large number of female victims at the same time that it neglects the fact that the victims were mostly employed in non-qualified jobs while still in high school (sosa, 2017, p. 99). the need to build solid grounds for claiming a structural cause of discrimination that attributes an expanded responsibility to states seems to have obscured the complexity of the identitarian factors at play, such as their political stance, the need to conceive them as ongoing processes rather than fixed essences, and the need to account also for the larger context in with they are embedded. this is the course that structural discrimination as an expansion of state responsibility is taking. however, human rights law has shown efforts to overcome the unidimensional lens that characterized the field and incorporated the language into its instruments, decisions and reports. we see expressions such as “special vulnerability”, “holistic approach”, “multiple discrimination”, “intersectional nature of discrimination”, and so on, rapidly appropriated by human rights discourse. the following section will track the evolution of the concept of intersectionality in human rights law, to then analyze the way this new framework has been applied, if it has been attached to innovative notions of state responsibility, or linked to specific types of discrimination. iii. from structural to intersectional approaches to discrimination in human rights law a. definitions intersectionality has been proclaimed as a type of discrimination that intends to reveal what remains unseen when multiple forms of oppression are conceptualized under http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 11 separate frameworks. its landing in human rights law, however, has re-defined the scope of this concept. this section will observe the actual effects of intersectionality by tracking the scope and implications of the notion of intersectionality in the human rights field as it has been developed so far. the early definitions of intersectionality as a specific type of discrimination usually refer to the developments of the finnish scholar timo makkonen, who has forged the now classical distinction between the concepts of multiple discrimination, compound discrimination and intersectional discrimination (makkonen, 2002). multiple discrimination, according to the author, refers to the different treatment that a person suffers based on different factors (such as gender, race or ethnicity) when they happen at different times. following this reasoning, rey martínez explains that a woman with disabilities may suffer discrimination by not being hired for a certain position because the building is not accessible for wheelchairs (martínez, 2008, p. 263). by this example the author tries to exemplify a situation in which one factor does not interact with the other at the same time, given the hypothetical case that being a woman does not influence the decision to hire her. however, as rey martinez sharply observes, rather than multiple discrimination, in a strict sense, this is a case of a single ground discrimination (martínez, 2008, p. 266). in contrast, compound discrimination refers to the case when the multiple grounds of discrimination happen at the same time, or, in other words, they are compounded by one or more other grounds of discrimination. in this sense, following moon gay, the example can be found in the case perera v civil service commission (no 2) (office for official publications of the european communities, 2007). the case concerns a person born in sri lanka who emigrated to the uk as an adult, and had been serving as an executive officer at the civil service. he was frequently rejected for promotions and claimed that this was a case of racial discrimination. this case shows that he was unable to get a position because he did not meet more than one of the requirements set up by an employer: age, experience in the uk, command of english, and nationality. the discrimination is considered to be compounded “because the lack of one factor did not prevent him getting the job but it did make it less likely, and the lack of two factors decreased yet further his chances of selection for the job” (office for official publications of the european communities, 2007). the key feature of this type of discrimination is that the different factors of discrimination operate at the same time, without merging. in other words, they potentiate one another but don't operate in conjunction. again, rey martinez criticizes the idea that there is a compound discrimination substantially different from an intersectional discrimination. he argues that it is a merely theoretical distinction that in praxis does not provide any different legal consequence from what intersectional discrimination intends to reflect (p. 266). finally, intersectional discrimination describes a type of discrimination that not only happens at the same time, but also occurs in a way that the multiple grounds are inseparable, turning into a specific type of discrimination (office for official publications of the european communities, 2007). rey martinez illustrates this with the example of romani women. the type of discrimination suffered results from the combination of being women and belonging to a specific ethnic group. moreover, they are affected by specifically negative social stereotypes, that do not affect either non-romani women nor romani men (p. 264). additionally, the ontario commission illustrates intersectional http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 12 discrimination through the case of mercier, a decision from the supreme court of canada, in which, rather than referring to a specific ground of discrimination such as disability, they considered that the “determination of what constitutes a disability should be based on whether the person has experienced “social handicapping” rather than focusing on bio-medical conditions or limitations.” (ontario human rights commission, 2001, p. 2). however, in practice scholars interchange the terms, and use multiple discrimination as a synonym of intersectional discrimination. in sum, even though these distinctions —multiple, compound and intersectional discriminations— can have pedagogic and analytical purposes, what makkonen describes as multiple discrimination is strictly speaking not so. moreover, it may lead to confusion, since the concept that better grasps the phenomenon that we are trying to describe is encompassed by what makkonen calls intersectional discrimination (martínez, 2008, p. 267). however, as will be later shown, we can see traces of this distinction, and confusion, in the later reception of the term in the human rights court's jurisprudence. b. the incorporation of intersectionality in human rights instruments during the early 2000s the language of intersectionality began to flourish through general comments, recommendations, reporting guidelines of un bodies (chow, 2016) as well as reports of the intern-american commission on human rights. as a first effort to codify the definition of the concept of intersectionality is the ngo forum declaration at the 2001 world conference against racism, a watershed moment for the global dispersal of intersectionality (collins & bilge, 2016, p. 92). article 119 includes a thorough definition of intersectionality that reads as follows, [it] acknowledges that every person be it man or woman exists in a framework of multiple identities, with factors such as race, class, ethnicity, religion, sexual orientation, gender identity, age, disability, citizenship, national identity, geo-political context, health, including hiv/aids status and any other status are all determinants in one's experiences of racism, racial discrimination, xenophobia and related intolerances. an intersectional approach highlights the way in which there is a simultaneous interaction of discrimination as a result of multiple identities (world conference against racism, ngo declaration, 2001, § 119). in the year 2000, the cerd committee issued the general recommendation 25, focusing on the “gender related dimensions of racial discrimination”. the first point of the document acknowledges that “racial discrimination does not always affect women and men equally or in the same way”, and “that there are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way, or to a different degree than men.” moreover, the 2001 report on violence against women called for “action to be taken at both the national and international levels to raise awareness of the multiple nature of discrimination experienced by marginalized women and to mainstream an intersectional or more holistic approach at a theoretical level and addressed at a practical level” (coomaraswamy, 2001, para. 199). in turn, the cedaw committee http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 13 issued the general recommendation 28 which recognizes that gender is "inextricably linked" to other social factors of discrimination such as religion, race, politics, disability, etc. (para. 18). within the inter-american system, article 9 of the inter-american convention on the prevention, punishment, and eradication of violence against women (convention of belem do para) is considered by the inter-american commission on human rights as the recognition of the “principle of intersectionality” (iachr, 2015, para 28). during the early 2000s the inter-american commission included notions of intersectional approaches in their decisions. the case of ana, beatriz and celia gonzález pérez, brought before the inter-american commission, is one of the first decisions that recognizes the context of multiple discriminations as causing more harmful consequences for the victims. it discusses article 1(1) of the convention, and determines that the state of mexico has breached its obligation to guarantee the exercise of the rights and liberties recognized in that instrument to the persons under their jurisdiction. the case refers to three indigenous women who were detained, raped and tortured by a group of soldiers after being separated from their mothers. the state then sent the case to the military jurisdiction, a clearly not-impartial jurisdiction that did not guarantee due process (iachr, 2000, para. 85). following the judgement of the inter-american court on human rights in the case velázquez rodríguez the commission indicated that the obligation of guarantee contained in article 1(1) of the american convention includes the duty to organize the governmental apparatus and, in general, all the structures by which the exercise of government power is manifested, so that they are capable of legally ensuring the free and full exercise of human rights. moreover, the commission stressed the aggravated harm perpetrated by the state due to its failure to provide an adequate judicial response, taking into consideration circumstances such as the victim's status as indigenous women, their different cosmogonies and languages. in addition, the iachr issued a report on the case escobar ledezma et al v. mexico referring to the disappearance and subsequent death of paloma escobar, a 16-year-old girl from the city of ciudad juarez in chihuahua, mexico. the petitioners argue that due to the pattern of omissions, irregularities and deficient investigation that lead to that unfortunate outcome, the state of mexico should be held responsible (iachr, 2006). in the report, the commission affirmed that taking the context into consideration, it could be concluded that the girl was exposed to a greater risk, therefore, she was exposed to a different type of discrimination: discrimination, in its different expressions, does not always affect all women equally: there are women who are exposed to an even greater extent to the violation of their rights and to acts of violence and discrimination (para. 135). a breaking point at the inter-american level was during the symposium called “intersectionality in the inter-american human rights system” held in 2013, where commissioners, as well as representatives from international human rights organizations gather to discuss the topic. among the main concerns were how to better conceptualize discrimination, how to address intersecting oppressions and adopt the right remedies http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 14 for human rights violations. following patricia hill collins highlights of the meeting, there were four valuable qualities found in intersectionality’s approach. to begin, the move beyond the civil rights framework that incorporates the human rights framework at an international level. second, they addressed a potential value of intersectionality that relies on its capacity to observe the complexity of social issues implicated in human rights violations. third, she noticed the aim of advocates and human rights practitioners of incorporating intersectionality in their field of practice. finally, hill collins refers to intersectionality's close relationship with the goal of social justice (p. 97-98). a 2015 report from the inter-american commission on human rights on “legal standards related to gender equality and women’s rights in the inter-american human rights system” refers to an inextricable link between the factors that expose women to discrimination along with their sex, such as their age, race, ethnicity, and economic position, among others (iachr, 2015, para 28). in addition, the same year, the report on access to information, violence against women and administration of justice stresses the importance of disaggregating statistical information produced by states based on sex, race, ethnicity, among other factors, “that make it possible to address violence and discrimination against women from an intersectional perspective, that is to say, giving due consideration to the specific human rights violations that women may face as a result of the intersection of factors in addition to their sex, such as their age, race, ethnicity, and financial status, among others.” (iachr, 2015, para 9). an interest in analyzing the situation of indigenous women from an intersectional perspective can already be seen in the 2011 report where the iachr showed its concern for the situation of indigenous women, afro descendant women and other groups, “who face additional difficulties to access housing due to the structural discrimination in which they live” (iachr, 2011, para. 326). the topic is addressed at large in a more recent report on indigenous women issued by the iachr that establishes intersectionality as a guideline for the commission’s work. the report makes different remarks on intersectionality in the section “guideline principles and juridical nature of the report” and specifically establishes intersectionality as a guideline principle. intersectionality is also included as the second guideline principle under paragraph 38, and in this instance, is described as a basic concept adumbrating that the discrimination indigenous women face for being women is intertwined with other factors such as race, ethnicity, religion, beliefs, health, status, age, class, cast, sexual orientation and gender identity (iachr, 2017, par. 33). the analysis so far has shown that the definitions of intersectionality as well as intersectional approaches at different human rights forums, are intended mostly as a reference to disadvantageous contextual conditions, additional vulnerabilities or marginalization, but without attributing any legal implication either in the framing, or in the outcome of the cases. in this, we observe that intersectional approaches are distant from the route that structural discrimination took, as was described in the previous section of the paper. still, there are two cases of the inter-american court on human rights that incorporate concepts of intersectionality in their reasoning. their scope will be studied in http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 15 order to track approaches to intersectional discrimination in practice. exploring its uses in concrete cases will show the actual definition that is applied nowadays and will help to answer if it has actually provided new insights that the anti-discrimination approach was leaving unattended. c. the use of intersectionality in judicial decisions the first case of the inter-american court on human rights that expressly refers to intersectionality is gonzalez lluy v. ecuador from 2015. the importance of the case lies in that it provides an initial attempt to apply an intersectional approach, although we will see that this was done with a great degree of vagueness and leaving many open questions. some clarification came a year later through the case i. v. v. bolivia of 2016, where the court narrowed down the events where “intersectional discrimination” was involved during the case. comparing the cases, looking at the continuities and twists from one case to the other, will provide more clarity about the scope that the court is giving to the notion of intersectionality, as well as raising concerns about the degree of arbitrariness that could lead from granting legal implications to such malleable concept. the gonzalez lluy case addresses the right to life and personal integrity, and the right to health and education of a girl in a low-income family that at the age of three was infected with hiv on receiving a transfusion of blood in a private health clinic. her situation had a strong impact on her access to education and her family had to move on numerous occasions and were forced to live in unfavorable conditions and in isolated places (para. 155). regarding her right to life and to personal integrity the court considered that, according to article 1(1) of the convention, states have passive obligations such as to respect rights and freedoms recognized by the convention, and also active obligations such as to adopt all the appropriate measures necessary to ensure those rights (para. 168). once again, the court follows the casuistry regarding human rights violations to the right to life by individual actors under its jurisdiction, in this case, through deficient health care services, and states that the lack of adequate medical treatment may constitute a violation of article 5(1) in relation to article 1(1) of the convention. in this case, the court found that the state of ecuador was indeed responsible for the violation of the obligation to monitor and supervise the provision of health care services within the framework of the right to personal integrity and right to life, even when the health service is provided by a private entity. regarding the right to education, article 13 of the protocol of san salvador (oas, 1999), the court examines its implications and the violation of the right to remain in the education system, the right not to be discriminated against, and adaptability in relation to the right to education. in doing this, the court delves into the evolution of the concept of disability and affirms that living with hiv is not per se a disability. under certain circumstances, however, the social and attitudinal barriers around people living with hiv can place them in a situation of disability (para. 237). the court observes that the different treatment granted to talia was based on her health status (para. 252) and therefore continues to analyze whether the differentiated treatment was discriminatory http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 16 or not.5 since the convention does not provide an explicit definition, the court refers to the definition included by the human rights committee of the international covenant on civil and political rights in the general comment no. 18: any distinction, exclusion, or restriction based on specific reasons, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or any other social condition, which has the intention or effect of nullifying or impairing the equal recognition, enjoyment, or exercise of the human rights and fundamental freedoms of all human beings (para. 7). insofar as the discrimination due to her hiv condition fits into the “any other social condition” of the definition (para. 255), the state had the obligation to demonstrate that the decision to expel talia from the education system did not have a discriminatory purpose or effect (para. 257). something they were unable to prove. although there was a legitimate objective, which was the “collective interest” and the integrity of life of children, the measure adopted by the state was based on "unfounded and stereotypical presumptions concerning the possible risks related to hiv para. 266). therefore, those were not appropriate means to ensure the legitimate objective aimed. on the contrary, they were harmful and disproportionate. when the court determines the scope of the discrimination they introduce, for the first time, the notion of intersectional discrimination. the court recognizes that there are many factors of vulnerability and risk of discrimination at play; that “made her more vulnerable and exacerbated the harm that she suffered,” (para. 285) such as being a woman, living with hiv, being a person with disabilities, and being a minor, as well as her socioeconomic status. but most importantly, the court stresses that the discrimination that talia experienced was a specific form of discrimination that “resulted from the intersection of those factors” (para. 290). in order to define what they mean by this new type of discrimination; the decision distinguishes between multiple discrimination and intersectional discrimination. the court points to the existence of multiple factors of vulnerability and that discrimination for being a girl or a woman, for living in poverty, and for living with hiv converged in talia’s life. the judges agreed that many forms of oppression can affect one’s life (multiple discrimination), but focus on the result of a particular or specific discrimination that derives from the intersection of them (intersectional discrimination) (para. 290). they then go further in their analysis and explain that the treatment provided by health care services, the access to education and the right to decent housing would have been different 5 regarding the alleged violation of article 1(1) and 24 the court clearly distinguishes between the obligation included in article 1, this is, the state’s obligation to respect and ensure the rights contained in the american convention “without any discrimination”, which would be violated together with the substantive right in question; and in article 24, which refers to the unequal application or protection of domestic law. for this case, the focus will be the first. http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 17 if the girl, talia, had not been living in poverty. besides, as a girl living with hiv she needed special support from state policies in order to realize her rights fully. finally, they identify the particular issues and challenges that talia would face in the future’s dilemmas around maternity and future relationships. the concurring opinion of judge eduardo ferrer mac-gregor poisot offers interesting distinctions on an effort to further clarify what the court means by intersectionality. he explains: indeed, the discrimination against talia was associated with factors such as the fact that she was a woman, a person with hiv, a person with a disability, a minor, and due to her socio/economic status. these aspects increased her vulnerability and exacerbated the harm she suffered. the intersection of this factors in a discrimination with specific characteristics constituted multiple discrimination that, in turn, constituted intersectional discrimination. nevertheless, not every multiple discrimination, is necessarily associated with intersectionality (para. 7) with an explanation that resembles the distinctions made by makkonnen, and therefore, also its limitations, as previously exposed, the concurring opinion affirms that in order to have an intersectional impact, the factors must interact to create a unique and distinct burden or risk of discrimination. on the one hand, they must be analytically inseparable, or unable to disaggregate into different reasons, and on the other, they must create consequences different from the consequences suffered by subjects affected by only one form of discrimination (para. 11). while multiple discrimination refers to several factors, intersectional discrimination addresses the concurrency of different reasons for discrimination in the same event. the difference, according to the judge, relies on whether the causes of discrimination have a separate or simultaneous impact. finally, the judge remarks that intersectionality adds “a new dimension to the principle of non-discrimination in certain kinds of cases,” (para. 11) since, the forms of discrimination that interact in the case, if assessed independently, would not explain “the particularity and specificity of the harm suffered in the intersectional experience” (para. 12). he delegates the definition of the scope of the approach, however, to future decisions. the case that so far has specified the current extent of intersectional discrimination is that of i.v. v. bolivia (iacrthr, 2016, par. 118). the case refers to a woman who was born in peru, where she was twice detained by the national department against terrorism (dincote), and suffered physical, sexual and psychological harassment from the authorities. later in her life, after having her first child, i.v. entered bolivia as a refugee. while in bolivia, she received treatment during her third pregnancy at the hospital de la mujer, in la paz, a place where she was also treated during her labor. on this occasion, under the effects of epidural anesthesia, the doctors conducted a tubal ligation (or tubal occlusion) alleging that they had asked for her verbal consent, but not the patient’s written consent. her husband was provided with a form named “family authorization for surgery or special treatment” in order to authorize the c-section before the operation: however, the doctors could not reach him in order to give the specific consent for the tubal occlusion. http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 18 the doctors argued that the reason they proceeded in that way was because the uterus could rupture in case of a future pregnancy. there were many rights involved in the case: the right to personal integrity, right to personal freedom, right to dignity, right to private and family life, access to information, and women's right to have a life free from violence, among others (para. 118). with respect to the human rights violations due to the sterilization without consent, the interamerican commission made a strong argument asserting the multiple discriminations faced by the victim. they affirmed that the case is an example of the multiple forms of discrimination that affect the enjoyment and exercise of human rights on behalf of some groups of women such as i.v. due to the intersection of different factors such as sex, migrant status and economic position (para. 136). in this sense, they highlighted that special economic vulnerability also impacts their access to health, because many times health care providers are biased by gender stereotypes about women's autonomy to decide on their own reproductive practices. the providers actions reflect a belief that they are in a better position to decide about women's reproductive health (para 137). the court, for their part, bases the decision on the principle of autonomy according to which every person must be treated as equal and no one can be treated as a means towards an end (para. 152). regarding the principle of non-discrimination, the court goes further and puts it in the domain of jus cogens. they establish a link between the principle of nondiscrimination and the notion of human dignity and consider it to be incompatible with the privileged treatment of some groups over others. not every difference in treatment can be regarded as discriminatory; the criteria, however, must be objective and reasonable. the criteria could coincide with those grounds enunciated in article 1.1 of the american convention, or with the wording of the article left open under “other social condition”. in these cases, the court remarks that strict scrutiny must be applied, or in other words, that different treatment must constitute a necessary measure in order to achieve an imperative goal (para. 241). in this case, the court observes that forced sterilization has a structural dimension exacerbated by social conditions which make women disproportionately affected by it. moreover, the biological capacity of women to get pregnant causes greater exposure to unconsented sterilizations. as a consequence, the court finds that the situation faced by i.v. falls into the strict scrutiny of article 1.1. for reasons of sex and gender, and does not survive the test (paras. 243-245). this is because, according to the court, the sterilization was not a necessary measure in order to protect the woman from the risk of a future pregnancy that could endanger her life. indeed, the same goal could have been achieved with a less invasive measure. the position of the court regarding the allegations of multiple grounds of discrimination shows a restriction on the application of intersectional discrimination. here the court distinguishes between two scenarios. on the one hand, the court analyzes whether unconsented sterilization is a phenomenon in which different factors of discrimination, such as economic position, race, disability, etc., are at play, in line with the allegations made by the commission. the court notes that the woman had insufficient access to public health care services; however, according to the court, this does not entail per se that the decision of conducting a tubal ligation was due to her migratory status or http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 19 economic position, but rather only to her sex (para. 247-248). on the other hand, the court analyzes the implications of the multiple factors of discrimination in i.v.'s right to access to justice. here, the court reaffirms its position according to which judicial impunity in cases of violence against women promotes further injustice and sends the message that it can be tolerated (para. 317), and notes that the intersection of her economic status and being an asylum seeker and persecuted had a major impact on her quest for justice (paras. 318-321). in this sense, the court goes back to the definition given in the case gonzales lluy y otros vs. ecuador, and affirms that the discrimination that she faced was not only caused by these factors, but converged in a specific form of discrimination confirmed by the intersection of them; in other words, were one of these factors not in play, the discrimination would have had a different nature (para. 321). the broad picture of the cases reviewed shows that intersectionality as “a new dimension to the principle of non-discrimination” is slowly making its way through human rights courts. the intersectional approach developed in the gonzalez lluy and followed by the i.v. case, inaugurate intersectionality as a new type of approach under the inter-american system offering new and interesting insights and constituting a precedent to start building a more concrete definition of intersectionality following the traces of how it has been applied. still, they also show that the definition, insights, juristic implications and legal grounds are vague and need to be unpacked. the cases that applied the concept of intersectional discrimination share the common ground of focusing on the contextual elements of the case and bring to light structural elements of discrimination such as racism, patriarchy and economic disadvantage. the cases reviewed show that the intersectional approach is distinctively linked with the unfavorable economic context that affected the claimants, since in both cases the situation under review involved a person in a precarious economic situation. the economic precariousness was considered a factor intersecting with other forms of discrimination. under an intersectional approach, the political economic structures arise in a similar fashion as the context of structural economic discrimination did in the previous section. in the same vein, the cases refer to rights with strong economic rights components, rather than civil rights: access to education in gonzalez lluy, and i.v. uses the intersectional approach to address the lack of access to justice (which, fits under both, civil and economic rights). paying a closer look to the development of the definition under the inter-american system, we see in the concurring opinion of gonzalez lluy v. ecuador, an initial broad definition of intersectionality that includes the categories of sex, poverty, disability and childhood as contextual elements that are interacting together in the context of access to education. the separate opinion clearly distinguishes between multiple discrimination and intersectionality: “the intersection of these factors in a discrimination with specific characteristics constituted multiple discrimination that, in turn, constituted intersectional discrimination. nevertheless, not every multiple discrimination, is necessarily associated with intersectionality” (para. 7). this statement leaves to future decisions the task of limiting and defining the scope of the concept of intersectionality, which so far had been loosely defined as multiple reasons or factors that interact to create a unique and distinct burden or risk of discrimination. http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 20 in this sense, the inter-american court seems to follow the distinction between multiple, compound and intersectional discrimination6, imprecisely and ambiguously sketched by early works of intersectionality in human rights law. still the court has not been explicit about their methodology nor specified if there are a limited number of factors, or how those factors are determined as relevant to be brought into the analysis. the intersectional approach provided by the court has not determined which social factors count when addressing experiences of oppression from an intersectional perspective. which social categories should be taken into account and which should not? the imprecise scope and implications of intersectionality in the human rights field is worrisome since contrary to its original purpose, it can lead to arbitrary exclusions and to fixation in essentialist categories. the i.v. judgement, in effect, is a good case from which to draw conclusions in this sense, since it certainly limits the scope of intersectionality when identifying the presence of intersectional discrimination against the victim in the case of access to justice, but not in the practice of tubal ligation. unfortunately, there is little development of the court’s reasoning on this point, but the decision shows that being a migrant woman in a precarious economic position appears to have a different impact when the person is facing the judicial system rather than the healthcare system. for the court, being a woman is a unified experience when facing discrimination from reproductive health care services, and it is drawn from the court's reasoning, that living in poverty does not make this experience any different. the distinction demands attention inasmuch as gonzalez lluy concluded that living in poverty had impacted the treatment provided by the health care system of a girl with hiv. the limitation made by the court, therefore, seems rather arbitrary. interestingly, in this limitation, we observe semblances of a homogenous notion of women, according to which maternity experiences have a common ground that does not interact with other factors. iv. conclusion the paper follows the development of the principle of non-discrimination in human rights law into the most recent incorporation of intersectional approaches. observing the continuities and disruptions between the notion of structural discrimination and intersectionality allows for identification of the limitations of applying a notion of intersectionality built from categories developed through the lens of structural levels of discrimination. the development of notions of structural discrimination for certain groups, answers one of the main criticisms of the formal principle of non-discrimination, which is that its individualistic accounts of equality cannot protect the members of groups facing disadvantageous social positions, with maria da penha as its groundbreaking case, the cotton field case as proffering a more complex understanding of state responsibility drawn from structural discrimination. 6 in previous cases where the i-a human rights court had referred to life experiences where more than one cause of oppression was involved, the term used was multiple discrimination. for example, that was the term that the court chose when decided on cases where indigenous women suffered sexual assaults. see rosendo cantú et al. v. mexico, preliminary objections, merits, reparations and costs, inter-am. ct. h.r. (ser. c) no. 216, (iacrthr, 2010). http://10.17561/tahrj.v20.7629 cecilia gebruers the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 21 the construction of group and identity-based rights from structural perspectives may sharpen views on how, for instance, women see their right to life or right to personal integrity affected by gender based violence, but it led to fixed notions of identitarian categories such as that of women. in an effort to give a more complex account of the flux of identities in an array of inter-personal as well as structural settings, concepts of “multiple discrimination” first, “adding vulnerabilities” and “intersectional nature of the discrimination” later, have been gaining increasing attention in the iachr and court’s decision. still, categories built from structural patterns of oppression occlude more nuanced understandings of power formations and leave the definitions of intersectionality, as well as its use in judicial decisions, trapped in the logic of categorical reasoning. the reports and decisions reviewed have failed adequately to develop the connections between structural discrimination and intersectional approach. the reasons behind the silence in relation to the shared elements of both terms is difficult to explain, especially when we observe that one of the ways intersectionality is operating in the court’s reasoning is by exposing contextual elements, with the same effects as structural discrimination. still, they have been granted a different legal basis. while structural discrimination has been incorporated in an expansive interpretation that follows from article 1.1 of the american convention, the intersectional approach is introduced as a mere contextual element whose main accomplishment is that of illuminating the social and economic vulnerabilities at play, and has been mainly been referred to as a “guiding principle”. the disparities in "juridical nature" have strong legal consequences and influence the future impact that the concept of "intersectionality" can bring to human rights law. an open question is whether the notion of intersectional discrimination should also be interpreted under article 1.1 of the american convention. should it also require special scrutiny? how should the theory of risk be applied when we have different structural oppressions at play in a case? following this reasoning the question of the threshold that should be met arises. if this is the chosen path, first and foremost, should it be a methodology to determine the presence of an intersectional form of discrimination in human rights law? on the one hand, having to prove the presence of intersectional discrimination entail adding barriers, however, it may allow for an expansion of the international responsibility of states for their failure to comply with their obligations. on the other, if it keeps on being a merely contextualized description it may nonetheless illuminate and allow for a more complex understanding of the factors at play, and their legal consequences limited to perhaps some impact on reparations. in any event, there is an evident confusion regarding the definition, legal nature and effects, methodology and function of intersectionality in the development of human rights law. the path the concept takes will have implications for the way we appropriate the concept of intersectionality to arrive at more just decisions. the current scope of the concept of intersectionality and intersectional approaches in human rights law evinces a strong connection with categorical approaches built from structural forms of oppression, which result in fixed and essentialist accounts of power formations. if the legal subject continues being atomistic and only amended through ad-hoc notions in the way “intersectional approaches” are being used now, it may eventually lead to a change over time, but the process will be slow. intersectional approaches can follow a different path and deconstruct legal subjects by exposing how they are embedded in social practices. http://10.17561/tahrj.v20.7629 from structural discrimination to intersectionality in the inter-american system of human rights: unravelling categorical framings the age of human rights journal, 20 (june 2023), e7629 issn: 2340-9592 doi: 10.17561/tahrj.v20.7629 22 references abramovich, v., (2009). “de las violaciones masivas a los patrones estructurales: nuevos enfoques y clásicas tensiones en el sistema interamericano de derechos humanos”, 6 sur revista internacional de derechos humanos 11. https://doi. org/10.18800/derechopucp.200902.005 abramovich, v., (2010). responsabilidad estatal por violencia de género: comentarios sobre el caso "campo algodonero" en la corte interamericana de derechos humanos, anuario de derechos humanos 172. https://doi.org/10.5354/ 0718-2279.2010.11491 barbera, m. l., & wences, i. 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http://www.i-p-o.org/racism-ngo-decl.htm from structural discrimination to intersectionality in the inter-american system of human rights abstract i. introduction ii. the emergence and application of structural discrimination against women in human rights law iii. from structural to intersectional approaches to discrimination in human rights law a. definitions b. the incorporation of intersectionality in human rights instruments c. the use of intersectionality in judicial decisions iv. conclusion references the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 1 the right to universal accessibility rafael de asís roig1 abstract: this paper presents universal accessibility from a human rights perspective. this approach provides a comprehensive view of universal accessibility, which can be considered as a specific right or as part of the essential content of any right. despite its self-evident justification, this right is not legally recognized. keywords: universal accessibility, human rights, universal design, reasonable accommodation. summary: 1. restricted or weak sense vs. broad or strong sense of universal accessibility. 2. the accessibility axis: universal design and reasonable accommodation. 3. the limits of accessibility. 4. the right to accessibility. 5. final considerations: accessibility as a self-evident right. accessibility is a basic concept in any context (kalbag, 2017). generally speaking, we seek to make everything accessible: products, environments, services, goods, rights... moreover, making things accessible is profitable from an economic point of view. therefore, making something inaccessible usually requires justification. if the history of human rights can be described as a fight against discrimination, it is fair to say that accessibility (or access to the enjoyment of rights) has played a major role. the enjoyment of rights requires the possibility of access, and its absence may imply discrimination. the fight against barriers underpins the three major currents of thought at the origin of the modern history of human rights (peces-barba y fernández, 1998). first, the need to limit political power can be understood as an attempt to eliminate its barriers to individual freedom. second, the idea of tolerance seeks to eliminate certain religious barriers. third, the proposals to humanize criminal and procedural law are aimed at suppressing regulations—legal barriers—that prevent an adequate protection of rights, in addition to putting an end to practices and rules against human dignity. thus, the elimination of barriers translates into a search for access to certain goods that are considered valuable and that justify the existence of rights. the fight against barriers and the quest for access to goods is a constant in the different historical processes of rights (positivization, generalization, internationalization and specification). their common aim is to eliminate barriers that prevent enjoyment and protection. in this context, accessibility goes hand in hand with equality and universality, two major referents of the rights discourse. 1 professor of philosophy of law. universidad carlos iii de madrid, spain (rafael.asis@uc3m.es). mailto:rafael.asis@uc3m.es the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 2 the connection between accessibility and non-discrimination stresses the importance of this requirement for people and groups in vulnerable situations. if we recognize disability as “an evolving concept [that] results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” (un convention on the rights of persons with disabilities, crpd), then lack of accessibility can often be a cause of disability. although a universal requirement, accessibility fully realizes its purpose in relation to disability—linked to the idea of possibility as a discourse against discrimination. thus, possibility and non-discrimination are two references in the reflection on the rights of persons with disability (barranco, 2021: 25). the former, as an alternative to the “hegemony” of ability—or, put another way, to the construction of the human from the abstract discourse of ability (campoy, 2004: 59). the latter, as a call for attention to the artificial and unnatural situation in which persons with disability find themselves. however, despite the importance of this requirement, very few legal texts refer to accessibility as a right. at this point, can be cited, the inter-american convention on the human rights of older persons (2015), which recognizes the "right to accessibility and mobility" of older persons in its article 26. the main purpose of this paper is to argue that universal accessibility can be interpreted as a right. to do so, i will begin by explaining its meaning and scope. 1. restricted or weak sense vs. broad or strong sense of universal accessibility article 9 crpd refers to universal accessibility in the following terms: “to enable persons with disabilities to live independently and participate fully in all aspects of life, states parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” however, accessibility can also be found in other provisions, such as the right to access to information (articles 9 and 21), personal mobility (article 20), education (article 24), health (article 25), employment (article 27), social protection (article 28), political participation (article 29) or participation in leisure, culture and sports (article 30). the same applies to the spanish general act on the rights of persons with disabilities and their social inclusion (ley general de los derechos de las personas con discapacidad y de su inclusión social, lgdpd). article 2 lgdpd defines accessibility in terms similar to the crpd, but the concept is subsequently linked to areas such as telecommunications and the information society; urbanized public spaces, infrastructure and buildings; transportation; goods and services available to the public; relations with public authorities; the administration of justice; cultural heritage; employment. it is also present in decision-making (art. 6), health (art. 10), education (arts. 16 and 18), professional activity (art. 17), building (arts. 25 and rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 3 26), justice (art. 28), employment (art. 35 et seq.), social protection (arts. 48 et seq.), and political participation (arts. 53 et seq.). universal accessibility has therefore two meanings: one restricted or weak, and another broad or strong. the restricted or weak sense of accessibility, which applies to “products, environments, programs and services,” implies “access [by persons with disabilities], on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas” (art. 9 crpd). on the other hand, the broad or strong sense of accessibility is derived from the three rights invoked as justification by article 9 crpd: independent living, participation in social life, and equal opportunity. the broad or strong sense of accessibility implies access to all goods and rights. it connects with the idea of capacity and underscores its dimension as a possibility—or, in other words, as the right to have rights. this second sense of accessibility—projected and embodied in specific rights—is often overlooked. however, it is a core element of the concept. 2. the accessibility axis: universal design and reasonable accommodation the concept of “accessibility axis” provides a framework to identify the system of rights of persons with disabilities, composed of universal design and reasonable accommodation (de asís, 2016a: 51). according to article 2 lgdpd, accessibility is based on a strategy of “universal design, without prejudice to reasonable accommodation”. thus, in a comprehensive sense, accessibility is expressed in two ways: (i) as universal design (requirement that all products, environments, services, goods and rights be accessible); and (ii) as reasonable accommodation (requirement to make a product, environment, service, good or right accessible for a particular case where the lack of universal design is justified). universal design in the strict sense coincides with the definition under the crpd: “the design of products, environments, programs and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.” in any case, it is important to note that the ldgpd adds more dimensions in line with its understanding of accessibility: processes, goods, objects, instruments, devices, tools… it constitutes an obligation when creating products, environments, programs and services (and rights). therefore, it applies (and may be breached) at the moment of creation. the obligation to comply with universal design requirements is not only incumbent on public authorities, but on all persons involved in the creation of goods and products, in the performance of a service or in the fulfillment of a right. the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 4 a classic example of universal design is adapted toilets. but the presence of sign language interpreters at conferences is also universal design. likewise, the existence of personnel who can support or assist people with disabilities in public institutions or in court is universal design. universal design is expressed in three ways: in a strict proper sense, in a strict improper sense, and as accessibility measures. in a strict proper sense, universal design conveys a general obligation with general addressees: to take into consideration the access of persons with disabilities in the very configuration of anything. in a strict improper sense, it implies carrying out specific accessibility actions for groups of people with disabilities. both the crpd and the lgdpd clarify that universal design will not exclude support products for particular groups of persons with disabilities when needed. hence, we speak of improper universal design when referring to specific measures intended for groups of people. universal design as accessibility measures implies carrying out actions aimed at guaranteeing access to already configured elements by all persons with disabilities or by groups of persons with disabilities. accessibility measures do not appear as such in the crpd. the committee on the rights of persons with disabilities has implicitly referred to them in point 24 of general comment no. 2: “a clear distinction should be drawn between the obligation to ensure access to all newly designed, built or produced objects, infrastructure, goods, products and services and the obligation to remove barriers and ensure access to the existing physical environment and existing transportation, information and communication, and services open to the general public.” arts. 63, 65 and 66 lgdpd refer in this sense to accessibility requirements and the elimination of barriers. these actions seek to correct situations where there is a justified lack of universal design—i.e., because it was not possible. they are aimed at making the product, environment, program, service and/or rights usable, exercisable, practicable, understandable. accessibility measures are intended to fulfill universal accessibility. they are implemented through general measures when the product, environment, program or service (or right) has already been created— justifiably, in a non-accessible manner. both improper universal design and accessibility measures seek to correct situations where accessibility has not been achieved in a justified manner, that is, because it was not possible (or reasonable). reasonable accommodation is one of the most relevant instruments within the system of rights of persons with disabilities. hence the importance of analyzing its meaning and scope. article 2 crpd defines reasonable accommodation as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 5 on an equal basis with others of all human rights and fundamental freedoms.” lgdpd provides a similar definition in article 2(m): “necessary and appropriate modifications and adaptations of the physical, social and attitudinal environment to the specific needs of persons with disabilities that do not impose a disproportionate or undue burden, when required in a particular case in an effective and practical manner, to facilitate accessibility and participation and to ensure the enjoyment or exercise, on an equal basis with others, of all rights.” although almost equivalent, these definitions differ in one significant point: their relationship to accessibility. the crpd does not mention accessibility, while it is a basic element in lgdpd’s definition. the convention’s approach to accommodation seems to be independent of the idea of accessibility. indeed, the un committee on the rights of persons with disabilities stated the following in its general comment no. 2 on art. 9 (2014): “the duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation, for example, workplace or school, in order to enjoy her or his rights on an equal basis in a particular context. here, accessibility standards can be an indicator, but may not be taken as prescriptive. reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. reasonable accommodation seeks to achieve individual justice in the sense that non-discrimination or equality is assured, taking the dignity, autonomy and choices of the individual into account. thus, a person with a rare impairment might ask for accommodation that falls outside the scope of any accessibility standard.” the above shows that the concept of reasonable accommodation is far from univocal. this lack of clarity that the un committee itself has referred to on several occasions (see for instance its 2011 report on spain) is also present in the literature, regulations and case law. as is well known, the origin of reasonable accommodation is to be found in the united states (equal employment opportunity act, 1972) and canada (supreme court decision, ont. human rights comm. v. simpsons-sears, 1985), in the field of working conditions and in relation to the right to freedom of religion. in europe, directive 2000/78/ec of 27 november 2000 defined reasonable accommodation as “appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. this burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the member state concerned.” unjustified non-compliance with the duty to provide reasonable accommodation amounts to real discrimination. according to article 5(3) crpd, “in order to promote equality and eliminate discrimination, states parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” for its part, article 63 lgdpd provides that the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 6 “it shall be understood that the right to equal opportunities of persons with disabilities, defined in article 4(1), is violated when, on the grounds of or because of disability, there is direct or indirect discrimination, discrimination by association, harassment, failure to comply with the requirements of accessibility and to make reasonable accommodation, as well as failure to comply with legally established affirmative action measures.” two issues stem from the concept of reasonable accommodation (de asís, 2016b: 42). the first one has to do with enforceability, while the other refers to its projection. from the point of view of enforceability, the very definition of reasonable accommodation provides for the possibility of being limited when it entails a disproportionate burden— which suggests that this requirement can be easily ignored. that is probably why the accommodation approach is not often used or praised by organizations defending the rights of people with disabilities. however, this need not be the case. taking accommodation seriously and placing it within the human rights discourse does not have that consequence. every right is limited, and this is true for accessibility as well as for accommodation. nevertheless, in both cases the limits are set by other rights. as regards its projection, reasonable accommodation is a measure that takes concrete form and materializes in relation to a specific person and case. therefore, a correct definition of reasonable accommodation refers to an individual person, even it may also serve or target a group of people in certain cases. normally, reasonable accommodation takes on its meaning when universal accessibility cannot be (justifiably) fulfilled, either through universal design or accessibility measures. reasonable accommodation comes into play, then, as an individual action in the absence or impossibility of universal design and accessibility measures. as we have seen, accessibility measures also operate when universal design requirements have not been met, but unlike accommodation, they are general in scope. the first step in accessibility is universal design. thus, when design fails (justifiably), the strategy must be to make the product, environment, service or right accessible to the greatest number of people (for example, through accessibility measures). and if this strategy fails (again justifiably), reasonable accommodation comes into play. it will have been noticed that, in this description of the accessibility axis, the requirement of justification takes on a special prominence. universal design becomes a requirement that can only be violated if it is justified. only then can reasonable accommodation come into play, which in turn can only be set aside in a justified manner. in all these cases, when there is no justification, we will be faced with a situation of discrimination and, as we will see, non-fulfillment of a right. 3. the limits of accessibility if the lack of universal design or reasonable accommodation can be justified in certain cases, we must consider the limits of accessibility. rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 7 the axis of universal accessibility may be limited by two types of circumstances that can be referred to as the limits of the possible and the limits of the reasonable. the limits of the possible have to do mainly with the state of scientific knowledge and human diversity, but also with how rights are affected. on the other hand, the limits of the reasonable refer to situations where accessibility is not justified, for affecting other rights and goods or representing a disproportionate cost. from the point of view of the limits of the possible, failing to comply with universal design requirements is only justified when (a) there is no alternative (lack of knowledge or technical means); or (b) it may affect another fundamental right or good that takes precedence based on a proportionality assessment. in both cases, those who fail to comply with universal design must provide a justification. lack of accessibility may be justified in the first instance by ignorance of human diversity or by an attitudinal issue, but in both cases the solution is to correct the situation and ensure accessibility. otherwise, a right will be violated and/or discrimination will occur. the limits of the reasonable are most relevant in relation to reasonable accommodation, although, as we have just seen, they also appear in the other dimensions of accessibility. and this is so because rights find their limits in other fundamental rights and interests: when there is a conflict between rights, we are forced to make a reasonableness or proportionality assessment. the requirement of reasonableness in the field of accessibility and accommodation is twofold. first, it implies some sort of justification of the adjustment in question within the universal accessibility approach. accommodation is justified by the universal accessibility requirement and its reasonableness derives from it. in these cases, accessibility is lacking because universal design was not possible or reasonable. however, the adoption of a specific measure (accommodation) may be reasonable. in these circumstances, universal design is not reasonable, but accommodation is (in principle due to its lesser impact on rights or property). this dimension of reasonableness is a conceptual requirement of accommodation. failing that, accommodation will not be reasonable. the second dimension of reasonableness refers to the specific adjustment and its repercussion. reasonableness can thus become a limit to the accessibility approach. in this sense, it involves leaving out certain measures that, although necessary to achieve accessibility, are no longer justified when other parameters are taken into account. in these cases, accommodation has an excessive impact on some rights or assets. the principle of proportionality makes it possible to assess whether the specific adjustment (accommodation) entails a disproportionate or undue burden. in a way, reasonableness operates as a double test on accessibility: first, regarding the justification of a universal measure that allows general access to a good or service; second, in relation to a single measure that allows particular access to a good or service. thus, the reasonableness of the adjustment implies, on the one hand, justifying the failure the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 8 in the universal design, and on the other hand, justifying the measure that constitutes the adjustment. in other words, an accommodation is reasonable when both the lack of accessibility and its implementation are justified. if the lack of accessibility is not justified, the accommodation is not appropriate— since there is a right violation or a discrimination that must be corrected. accommodation cannot be used to circumvent universal design requirements, nor can it become a strategy to hide real cases of discrimination in the enjoyment of rights or on the basis of disability. in any event, regardless of the specific criteria under each legal system, reasonableness requires a proportionality assessment, as was also the case with the limits of the possible. indeed, the very definition of accommodation refers to a disproportionate or undue burden, including those of economic nature. in order to determine the reasonableness or proportionality of a measure aimed at complying with the accessibility requirements, we must analyze its impact on other rights. this, in turn, implies: (a) considering the situation (social, economic, etc.) of all persons involved; (b) linking the measure (complying with or restricting accessibility) with a constitutional purpose (to defend or limit it); (c) proving that the measure (complying with or restricting accessibility) is suited for that purpose; (d) justifying that the measure (complying with or restricting accessibility) is the least harmful and the most beneficial to the rights of the persons involved. 4. the right to accessibility accessibility requirements, materialized in the interplay between universal design and reasonable accommodation (accessibility axis), make it possible to understand accessibility as a right. despite its self-evident nature (or precisely because of it), legal systems do not always recognize this right as such. however, its significant role in the fight against discrimination and for human rights allows to include it in this category (bariffi, aiello, campoy, de asís and palacios, 2007). this is even clearer in the field of disability, considering that it often results from lack of accessibility (i.e., violation of the right to universal accessibility). general comment no. 2 of the un committee on the rights of persons with disabilities relates universal accessibility to the right to access. as is well known, this right is enshrined in article 5(f) of the 1965 international convention on the elimination of all forms of racial discrimination: “the right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.” incorporating universal accessibility into the rights discourse has two major consequences: its consideration as a right per se, and its consideration as part of the essential content of other rights. the first is related to the restricted or weak sense of accessibility explained above, while the second refers to the broad or strong sense. as a right per se, accessibility means the right to access to goods, products, environments and services. this is a welfare right connected to the rights of consumers rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 9 and users,2 with a specific dimension in the field of persons with disabilities—since they can be considered vulnerable consumers. accessibility as part of the essential content of rights can have different implications. as a matter of principle, in this area, accessibility is inherent to the essential content of all rights, including fundamental rights. it translates into measures enabling access, use and enjoyment of a right. as noted by the spanish constitutional court in its judgment of april 8, 1981, the essential content of a right is violated “when the right is subject to limitations that make it unenforceable, unreasonably hinder its enjoyment, or deprive it from the necessary protection.” the possibility of accessing a court or understanding the meaning of a process are preconditions that allow the exercise of the right to effective judicial protection and, in this sense, are part of the essential content of this right. the possibility of accessing an educational center, sharing spaces or having access to educational materials and contents are also requirements of inclusive education and, therefore, of the essential content of the right to education. support and assistance may also form part of the essential content of the rights and, therefore, their absence may imply a violation. however, some accessibility requirements that make possible the exercise of a right have become rights per se. the scope of these rights can be very different. let us consider, for example, the right of access to justice or the right to an interpreter (both can be understood as a specific manifestation of the right to due process, and the latter even as an embodiment of the former). 5. final considerations: accessibility as a self-evident right in a way, the right to accessibility is part of a category of self-evident rights that, despite their obvious justification, are not recognized as such in legal systems. as is well known, the 1776 declaration of independence of the united states of america begins with the following statement: “when in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” and it continues: “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.—that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,—that whenever any form of government becomes destructive of these 2 consumer protection is becoming a private enforcement system, allowing to react against accessibility and discrimination violations in this area. however, it is not the best way to enforce these rights, because fundamental rights, strictly speaking, have to do with relations between citizens and public authorities, which should leave private relations out of this discourse. the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 10 ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” in 2009, historian lynn hunt published inventing human rights (hunt, 2009). she referred to what she called the paradox of self-evidence, relating the above text to the 1789 french declaration of the rights of man and of the citizen, and its opening statement: “the representatives of the french people, organized as a national assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all.” for hunt, both texts, and later ones such as the 1948 universal declaration of human rights, are based on a claim of evidence that gave rise to the paradox of selfevidence. in this sense she notes that “this claim of self-evidence, crucial to human rights even now, gives rise to a paradox: if equality of rights is so self-evident, then why did this assertion have to be made and why was it only made in specific times and places? how can human rights be universal if they are not universally recognized? shall we rest content with the explanation given by the 1948 framers that ‘we agree about the rights but on condition no one asks us why’?” (hunt, 2009: 19-20). the paradox of self-evidence raises questions about the concept (what they are) and the basis of rights (why and what for), about their different denominations, about their history, and about their protection mechanisms—in short, about the theory of human rights. obviously, i cannot address these issues here. nor can i, for reasons of space, develop a comprehensive discourse on the subject. i merely seek to explore a situation in which i repeatedly find myself when i refer to human rights in certain contexts: that of self-evident rights. i have begun with hunt because, in a way, self-evident rights arise from a paradox of self-evidence, albeit with a different meaning than that expounded by the professor of history at the university of california. what i call self-evident rights are inalienable goods and interests of the human rights discourse that are not, however, protected by legal instruments. hence the paradox. domestic legal systems and international standards have gradually recognized rights, setting up a catalog that was initially structured in three major categories (individual rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 11 and civil rights; political rights; and economic, social and cultural rights), which the emergence of new human rights has rendered insufficient. however, this open catalog of human rights seems to have ignored certain rights that for anyone who identifies with the values and principles of the human rights discourse are undoubtedly human rights. these goods, interests, claims or human needs are part of this discourse. some people already enjoy them, but not others, and if these rights are not fulfilled, it will hardly be possible to pursue a dignified human life. they are self-evident rights, obviously as human—but also fundamental—rights. these rights that i call self-evident are goods, interests, claims or needs that derive from the concept and foundation of human rights, and that are part of the universal and basic culture of rights (de lucas, 2018: 26). their lack of formal recognition constitutes a major barrier to the development of a dignified human life. as i have just pointed out, some people do not need the legal protection to enjoy or guarantee these rights. normally, these are people who fit the prototypical human being model that is the reference point for the human rights discourse. but sometimes these rights are not even recognized for these people. one of these rights is precisely the right to universal accessibility. in any case, considering accessibility as a right in the context of disability implies taking seriously the fact that disability must be analyzed and regulated from a human rights approach (cuenca, 2015: 35). for this purpose, among other things, the following 15 requirements should be met: (a) placing people at the center and recognizing that every person has their own voice. (b) recognizing that every person has the right to the free development of their personality and to the free choice of how to live. (c) assuming that a person’s identity is the combination of condition and situation. (d) beginning from a truthful, rigorous and accurate analysis, which has as its starting point the defense of those in a situation of vulnerability, and which is action oriented. (e) adopting a gender perspective (women are in a differentiated situation in the enjoyment of human rights as a result of historically unequal power relations). (f) considering intersectionality (axes of discrimination that, in an intertwined and differentiated manner, have an impact on individuals depending on various factors). (g) abandoning the welfare approach conditioned by the development of proactive public policies. (h) considering that rights are particularly resistant instruments, in the sense of being both a guide and a limit to law making, as well as especially protected tools enforceable in national and international courts. the right to universal accessibility the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 12 (i) advocating for rights in both the public and private spheres. (j) affirming the existence of an obligation to respect and protect rights which, in the case of public authorities (and certain private agents), is also an obligation to promote, redress and be accountable. (k) taking into consideration international human rights law (composed of treaties, enforcement bodies and international tribunals) in the interpretation and specification of its scope. (l) understanding that the equal fulfillment of rights and their universality are not incompatible with different treatment or attention to diversity. (m) rejecting segregation and promoting inclusion which, beyond integration, implies changing the context instead of the person and promoting the participation of all people. (n) accepting that rights can be limited, but only by other equivalent rights or interests, and based on weighting and proportionality assessments. this implies, for example, that any cost-based justification of a right’s limitation must be grounded on the fulfillment of another right. (o) understanding that the interests protected by rights are connected and interdependent (progress in the protection of a right favors all, and regression harms all). funding this research was funded by agencia estatal de investigación, project pid2019108018gb-108918gb-i00, “acceso a la justicia y vulnerabilidad”. references bariffi, f., aiello, a.l., campoy, i., de asís, r., and palacios, a. (2007), sobre la accesibilidad universal en el derecho, dykinson, madrid. barranco, m.c. (2021), “la discapacidad intelectual y la discapacidad psicosocial como situaciones de vulnerabilidad”, en cuadernos electrónicos de filosofía del derecho, 45. campoy, i. (2004), “la incursión de la discapacidad en la teoría de los derechos: posibilidad, educación, derecho, poder,” in campoy, i. (ed.), los derechos de las personas con discapacidad, debates del instituto bartolomé de las casas, no. 2, dykinson, madrid. committee on the rights of persons with disabilities, (2014), general comment no. 2, available at: https://tbinternet.ohchr. org/_layouts/15/treatybodyexternal/download.aspx?symbolno=crpd/c/ gc/2&lang=en). cuenca, p. (2015), “disability and humans rights: a theoretical analysis”, in the age of human rights journal, (4), 34–59. retrieved from https://revistaselectronicas. ujaen.es/index.php/tahrj/article/view/2312. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/download.aspx?symbolno=crpd/c/gc/2&lang=en) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/download.aspx?symbolno=crpd/c/gc/2&lang=en) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/download.aspx?symbolno=crpd/c/gc/2&lang=en) https://revistaselectronicas.ujaen.es/index.php/tahrj/article/view/2312 https://revistaselectronicas.ujaen.es/index.php/tahrj/article/view/2312 rafael de asís roig the age of human rights journal, 21 (december 2023), e7788 issn: 2340-9592 doi: 10.17561/tahrj.v21.7788 13 de asís, r. (2016a), “el eje de la accesibilidad y sus límites,” in anales de derecho y discapacidad, no. 1. de asís, r. (2016b), “reasonableness in the concept of reasonable accommodation”, in the age of human rights journal, (6), 42–59. https://doi.org/10.17561/tahrj. v0i6.2929 de lucas, j. (2018), “algunos elementos básicos de la cultura de los derechos. ¿por qué los derechos humanos?”, in studia historica. historia contemporánea, no. 36. https://doi.org/10.14201/shhc2018362534 hunt, l. (2009), la invención de los derechos humanos, translation by j. beltrán ferrer, tusquets editores, barcelona. kalbag, l. (2017), accessibility for everyone, a book apart, new york. peces-barba, g. and fernández, e. 1998, historia de los derechos fundamentales, volume i, tránsito a la modernidad. siglos xvi y xvii, universidad carlos iiidykinson, madrid. received: 21st february 2023 accepted: 22nd may 2023 https://doi.org/10.17561/tahrj.v0i6.2929 https://doi.org/10.17561/tahrj.v0i6.2929 https://doi.org/10.14201/shhc2018362534 the right to universal accessibility abstract 1. restricted or weak sense vs. broad or strong sense of universal accessibility 2. the accessibility axis: universal design and reasonable accommodation 3. the limits of accessibility 4. the right to accessibility 5. final considerations: accessibility as a self-evident right funding references the european union protection of human rights through its global policy: the implementation of the regime of restrictive measures against serious violations and abuses of human rights the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 255 the european union protection of human rights through its global policy: the implementation of the regime of restrictive measures against serious violations and abuses of human rights maria torres pérez*a abstract: the regime of restrictive measures against serious violations and abuses of human rights launched at the end of 2020 by the european union is part of the commission’s objective to reaffirm the union’s firm commitment to promoting universal values and strengthening its leadership in this field. however, the first year of implementation of the regime casts doubt on its effectiveness, given the existence of legal loopholes that tarnish it. keywords: restrictive measures, serious violations and abuses, human rights, european union. summary: 1. introduction. 2. the regime of restrictive measures against serious human rights violations and abuses. 2.1. the legal support of the restrictive measures regime. 2.2. scope of the restrictive measures regime. 2.3. the procedure for the adoption and modification of measures. 3. application of the restrictive measures regime during the year 2021 4. conclusion. 1. introduction in 2012 the european union (hereinafter eu) adopted a strategic framework for human rights and democracy1, which set out the principles, objectives and priorities aimed at improving the effectiveness and coherence of eu policy in these areas. to implement this strategic framework, the eu has to date adopted three action plans (2012-20142, 2015-20193 and 2020-20244). * associate professor, departament of international law “adolfo miaja de la muela”, university of valencia, spain (maria.torres@uv.es). all hyperlinks cited have been revised as of april, 15th 2022. a article published as part of erasmus-jmo-2022-module, 101085406-eu global, funded by the european education and culture executive agency (eacea), erasmus+ programme. 1 human rights and democracy: eu strategic framework and eu action plan, council of the european union, 11855/12, june 25, 2012. available at https://data.consilium.europa.eu/doc/document/st-118552012-init/en/pdf. 2 included as annex iii together with the strategic framework. 3 joint communication to the european parliament and the council, action plan on human rights and democracy (2015-2019) “keeping human rights at the heart of the eu agenda”. join(2015) 16 final, april 28, 2015. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a52015jc0016. 4 joint communication to the european parliament and the council, eu action plan on human rights and democracy 2020-2024. join/2020/5 final, march 25, 2020. available at https://eur-lex.europa.eu/legalcontent/en/txt/?uri=celex%3a52020jc0005. adopted by the council on 17 november 2020. https://data.consilium.europa.eu/doc/document/st-11855-2012-init/en/pdf https://data.consilium.europa.eu/doc/document/st-11855-2012-init/en/pdf https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a52015jc0016 https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a52020jc0005 https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a52020jc0005 the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 256 the european commission elected in 2019 began its work by promulgating the priorities of the institution and of the eu for the new period that began and that encompasses the years 2019-20245, proceeding to develop such document during the year 2020. among the priorities, two stand out that seek to underline the work of the eu as an international organization and the role that it should come to have in the globalized world in which we live, interrelating the internal welfare of european citizens with the welfare of the rest of the nations and the rest of humanity. these two priorities refer to achieving a stronger europe in the world and to the promotion of our european way of life. within this promotion lays the development of human rights and democracy in which a europe that protects them must defend justice and the fundamental values of the eu not only within the eu, but also in its foreign policy through various actions such as the modernization of the eu asylum system and cooperation with partner countries, and the development of a new plan for the advancement of human rights and democracy in the world. the president of the european commission, mrs. ursula von der leyen, presented on november 18, 2020, the new eu action plan on human rights and democracy6 which contains the program of measures that the european commission intends to develop in this field during the indicated period. this new action plan builds on previous action plans and continues to focus on long-term priorities by identifying five broad priority areas: 1) protecting and empowering people; 2) building resilient, inclusive and democratic societies; 3) promoting a global system for human rights and democracy; 4) new technologies: harnessing opportunities and addressing challenges; and 5) delivering by working together, the action plan also reflects the changing context with attention to new technologies and the link between global environmental issues and human rights. the new action plan is therefore intended to reaffirm the eu’s firm commitment to the promotion of universal values. respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights will continue to underpin all aspects of the eu’s internal and external policies. as highlighted by the european commission, the global picture of human rights and democracy is mixed. while there has been progress, the backlash against the universality and indivisibility of human rights, the closing of civic space and the rollback of democracy must be addressed. new opportunities have emerged as well as risks, especially related to technological advances and the global environment. the new action plan on human rights and democracy also sets out the ambitions and priorities for concrete action in the field of relations of the eu and third states and international organizations. to this end, it is envisaged that the eu and its member states 5 european commission, directorate-general for communication, leyen, u., political guidelines for the next european commission 2019-2024; opening statement in the european parliament plenary session 16 july 2019; speech in the european parliament plenary session 27 november 2019, publications office, 2020, https://data.europa.eu/doi/10.2775/81903. 6 see note 4. https://data.europa.eu/doi/10.2775/81903 maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 257 will use the full range of their instruments, in all areas of external action, to focus and further strengthen the eu’s global leadership on overall priorities. but the effective implementation of the action plan requires not only coordinated action by the eu and its member states, respecting the different institutional roles and competences, but also the implementation of a whole series of enforcement mechanisms, demonstrating a common eu approach. this is the framework for the new regime of sanctions in cases of serious human rights violations, the study of which will be undertaken below. this new regime took its first steps with the presentation by the president of the european commission, ursula von der leyen, and the high representative of the union for foreign affairs and security policy, josep borrell, of a joint proposal for a council regulation concerning the application of restrictive measures (sanctions) against serious violations and abuses of human rights on october 19, 20207. following the joint proposal, on december 7, 2020, the council adopted a decision8 and regulation9 establishing this comprehensive regime of restrictive measures (or sanctions) on human rights, with the european commission presenting a guidance note10 to address issues that were likely to arise in the implementation of the new rules. this new regime will not replace existing geographic sanctions regimes (höbert 2017; portela 2005; beaucillon 2021), some of which already address human rights violations and abuses in syria11, belarus12, venezuela13, yemen14, or the ongoing ukraine conflict15, 7 https://ec.europa.eu/commission/presscorner/detail/es/ip_20_1939. 8 council decision (cfsp) 2020/1999 of 7 december 2020 concerning restrictive measures against serious human rights violations and abuses, ojeu l 410i, 7.12.2020, p.13. available at https://eur-lex.europa.eu/ legal-content/en/txt/pdf/?uri=celex:32020d1999&from=es. 9 council regulation (eu) 2020/1998 of 7 december 2020 concerning restrictive measures against serious human rights violations and abuses, ojeu l 410i, 7.12.2020, p. 1. available at https://eur-lex.europa.eu/ legal-content/en/txt/pdf/?uri=celex:32020r1998&from=en. 10 commission guidance note on the implementation of certain provisions of council regulation (eu) 2020/1998, brussels, c(2020) 9432 final, 17 december 2020. available at https://ec.europa.eu/info/sites/default/ files/business_economy_euro/banking_and_finance/documents/201217-human-rights-guidance-note_en.pdf. 11 council implementing regulation (eu) 2021/848 of 27 may 2021 implementing regulation (eu) no 36/2012 concerning restrictive measures in view of the situation in syria, ojeu l 188/18, 28.5.2021. available at https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:32021r0848&from=en. 12 council regulation (eu) 2021/1030 of 24 june 2021 amending regulation (ec) no 765/2006 concerning restrictive measures in respect of belarus, ojeu l 224i, 24.6.2021. available at https://eur-lex.europa.eu/ legal-content/en/txt/pdf/?uri=celex:32021r1030&from=en. 13 council implementing regulation (eu) 2021/275 of 22 february 2021 implementing regulation (eu) 2017/2063 concerning restrictive measures in view of the situation in venezuela, ojeu l 60 i/1, 22.2.2021. available https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r0275&from=en. 14 council implementing regulation (eu) 2021/2015 of 18 november 2021 implementing regulation (eu) no 1352/2014 concerning restrictive measures in view of the situation in yemen, ojeu l 410 i/1, 18.11.2021. available at https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r2015&from=en. 15 council regulation (eu) 2022/428 of 15 march 2022 amending regulation (eu) no 833/2014 concerning restrictive measures in view of russia’s actions destabilising the situation in ukraine, ojeu l 87i, 15.3.2022. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=uriserv%3aoj.li.2022.087.01.0013.01. eng&toc=oj%3al%3a2022%3a087i%3afull. https://ec.europa.eu/commission/presscorner/detail/es/ip_20_1939 https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32020d1999&from=es https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32020d1999&from=es https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32020r1998&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32020r1998&from=en https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/201217-human-rights-guidance-note_en.pdf https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/201217-human-rights-guidance-note_en.pdf https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:32021r0848&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r1030&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r1030&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r0275&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:32021r2015&from=en https://eur-lex.europa.eu/legal-content/en/txt/?uri=uriserv%3aoj.li.2022.087.01.0013.01.eng&toc=oj%3al%3a2022%3a087i%3afull https://eur-lex.europa.eu/legal-content/en/txt/?uri=uriserv%3aoj.li.2022.087.01.0013.01.eng&toc=oj%3al%3a2022%3a087i%3afull the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 258 nor those regimes developed for the specific cases of chemical weapons16 or cyberattacks17. in any case, this study presents a reflection after the first year of application of the regime, not only on the appropriateness of the legal instrument published for this purpose, but also on its effectiveness with respect to the objectives stated at the time of its publication. 2. the regime of restrictive measures against serious human rights violations and abuses 2.1. the legal support of the restrictive measures regime as mentioned above, the legal support for this new regime consists of two joint instruments adopted on december 7, 2020, council decision (cfsp) 2020/199918 and regulation (eu) 2020/199819. this normative framework for the adoption of restrictive measures is complemented by three non-regulatory instruments that will serve as guides in its application: two of them prior to this regime and the guidance note20. the guidelines applicable by analogy by the member states to the new regime are the “guidelines on the implementation and assessment of restrictive measures (sanctions) in the framework of the eu common foreign and security policy”21 and the “eu best practices for the effective implementation of restrictive measures”22. however, none of these texts establishes a common regime for challenging the measures by the parties sanctioned by them, leaving such mechanism to the exercise of the national authorities in conjunction with the control that the court of justice of the european union may carry out, pursuant to article 275.2 of the treaty on the functioning of the european union23. 16 council regulation (eu) 2018/1542 of 15 october 2018 concerning restrictive measures against the proliferation and use of chemical weapons, ojeu l 259, 16.10.2018, p. 12-21, in its consolidated version of 15 october 2020. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex:32018r1542. 17 council decision (cfsp) 2019/797 of 17 may 2019 concerning restrictive measures against cyber-attacks threatening the union or its member states, ojeu l 129, 17.5.2019, p. 13. as consolidated on 19 may 2021. available at https://eur-lex.europa.eu/legal-content/ga/txt/?uri=celex:32019d0797. 18 op. cit., note 8. 19 op. cit., note 9. 20 op. cit., note 10. 21 guidance on the implementation and assessment of restrictive measures (sanctions) in the framework of the eu’s common foreign and security policy (update), 5664/18, may 4, 2018. available at https://data. consilium.europa.eu/doc/document/st-5664-2018-init/en/pdf. 22 eu best practices for the effective implementation of restrictive measures, 8519/18, may 4, 2018. available at https://data.consilium.europa.eu/doc/document/st-8519-2018-init/en/pdf. 23 consolidated version of the treaty on the functioning of the european union (hereinafter tfeu). oj c 326/47 26.10.2012. available at https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:12012e/ txt&from=en. https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex:32018r1542 https://eur-lex.europa.eu/legal-content/ga/txt/?uri=celex:32019d0797 https://data.consilium.europa.eu/doc/document/st-5664-2018-init/en/pdf https://data.consilium.europa.eu/doc/document/st-5664-2018-init/en/pdf https://data.consilium.europa.eu/doc/document/st-8519-2018-init/en/pdf https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:12012e/txt&from=en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:12012e/txt&from=en maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 259 2.2. scope of the restrictive measures regime a) “sanctionable” subjects the regime allows the eu to impose the measures contained in the regime not only on natural persons, but also on entities and bodies including state and non-state actors responsible for, involved in or associated with serious human rights violations and abuses around the world, regardless of where they occurred. specifically, the article 1.3. of the decision (cfsp) 2020/1999 states that “for the purposes of this decision, natural or legal persons, entities or bodies may include: a) state agents; b) other agents exercising effective control or authority over a territory; c) other non-state agents”. for the determination of each of the types set forth herein, the decision does not include any definition, the regulation specifying that, with respect to “non-state actors”, it will refer to “other non-state actors to which article 1(4) of decision (cfsp) 2020/1999 applies”24, i.e., those listed in the annex25. such a vague determination is not strange to this type of instrument. however, it is questionable if it is related to the necessary respect for a series of procedural rights contained in human rights treaties and other european instruments of judicial cooperation. thus, the question arises as to what is to be considered as “responsible” for the purpose of determining the sanction. “responsible” obviously implies a determination of responsibility which, however, is not carried out through a prior adversarial procedure, but through a political reaction of the union to a series of acts that are defined as punishable. without disputing the seriousness of these acts, it is true that the requirement to respect these principles not only derived from international human rights law, but also from national procedural laws raises doubts as to the legality of the adoption of these sanctions at both the domestic and international level, especially when they are far removed from the framework of international responsibility or the application of retaliatory measures (rosas 2016). even more so when the acts referred to in the decision (cfsp) and the regulation are acts closely linked to a criminal definition. to limit such discretion, the guidelines and best practices mention the need not only to respect applicable international law, but also the obligations arising from the treaty on european union or the european charter of fundamental rights, but without establishing a clear mechanism for such respect. it is specified that “proposals for autonomous listings should include individual and specific reasons for each listing. the purpose of the reasons is to state, as concretely as possible, why the council considers, in the exercise of its discretion, that the person, group or entity concerned falls under the designation criteria defined by the relevant legal act, taking into consideration the 24 article 2.3 of council regulation (eu) 2020/1998. 25 however, the annex at the time of publication of the texts was empty of content. the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 260 objectives of the measures”26. but confidential motives and discussions have never sat well with the principles governing criminal prosecutions and sanctioning regimes. b) the “gross violations and abuses of human rights” covered by the regime as determined by article 1 of decision (cfsp) 2020/199927, the serious violations and abuses of human rights to which the restrictive measures regime is intended to respond are: “(a) genocide. (b) crimes against humanity. (c) the following serious human rights violations or abuses: (i) torture and other cruel, inhuman or degrading treatment or punishment, (ii) slavery, (iii) extrajudicial, summary or arbitrary executions and killings, (iv) enforced disappearance of persons, (v) arbitrary arrests or detentions. (d) other human rights violations or abuses, including but not limited to the following, in so far as those violations or abuses are widespread, systematic or are otherwise of serious concern as regards the objectives of the common foreign and security policy set out in article 21 teu: (i) trafficking in human beings, as well as abuses of human rights by migrant smugglers as referred to in this article, (ii) sexual and gender-based violence, (iii) violations or abuses of freedom of peaceful assembly and of association, (iv) violations or abuses of freedom of opinion and expression, (v) violations or abuses of freedom of religion or belief.”. this list, which begins as a closed list of “violations” although it later includes an exemplary type is open to criticism from the point of view of international criminal law on which it is based, as it introduces some confusion between paragraphs b), c) and d), and eliminates war crimes, which are equally serious abuses of human rights that do not fall under this consideration. as has been understood by specialized doctrine (bassiouni 1999, 2011; bou 2009; capellà i roig 2005; torres 2008), crimes against humanity are a series of acts committed in the context of a widespread or systematic attack against the civilian population. for example, article 2 of the draft articles on the prevention and punishment of crimes against humanity prepared by the international law commission28 defines crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack against a civilian population and with knowledge 26 para. 11 of the working methods recommendations document for eu autonomous sanctions, annex i to the guidance on the implementation and evaluation of restrictive measures, op. cit. note 22. 27 the list of which literally reproduces article 2 of council regulation (eu) 2020/1998. 28 draft articles on the prevention and punishment of crimes against humanity, adopted by the commission on second reading, at its seventy-firster session, a/74/10, 2019 (hereinafter draft clh 2019). available at https://undocs.org/en/a/74/10. https://undocs.org/en/a/74/10 maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 261 of such attack”, including in the list of prohibited conducts murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity; the persecution of a group or collectivity with its own identity on political, racial, national, ethnic, cultural, religious, gender or other grounds universally recognized as unacceptable under international law, in connection with any of the acts referred to in this paragraph; enforced disappearance of persons; the crime of apartheid; and other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health. given this definition, which reflects customary international law on the subject, we could consider that paragraph c) of article 1 referred to above is intended to broaden the situations that may be considered abusive when they do not meet the level of generality or systematicity required for crimes against humanity or even to include the definitions of these conducts contained in the instruments for the protection of human rights mentioned in the article below, which sometimes do not fully coincide with their classification as crimes against humanity29. although the definition contained in the general type continues to accommodate the more specific types of treaties. however, the reference in subparagraph (d) to “other violations or abuses of human rights, including, inter alia, the following, provided that such violations or abuses are widespread, systematic (...)” cannot be explained, especially since all of them, except for subparagraph (i), are conducts that can be subsumed under the crimes against humanity provision described above. such reiteration adds nothing to the figure, and it would have been more appropriate to include in said paragraph (d) only the reference to those other violations or abuses of human rights that are of a different gravity with respect to the objectives of the common foreign and security policy established in article 21 of the teu. 29 thus, for example, the clh 2019 draft, defines torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”, while the convention against torture and other cruel, inhuman or degrading treatment or punishment states that it shall be understood as such “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. convention against torture and other cruel, inhuman or degrading treatment or punishment, adopted and opened for signature, ratification, and accession by united nations general assembly resolution 39/46 of december 10, 1984. available at https://www.ohchr.org/en/professionalinterest/pages/cat.aspx. https://www.ohchr.org/en/professionalinterest/pages/cat.aspx the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 262 c) applicable restrictive measures according to decision (cfsp) 2020/1999, two restrictive measures would be applicable: a travel ban to the territory of the union (for natural persons) and a freezing of funds (for natural and legal persons and entities). in addition, eu persons and entities would be prohibited from making funds available to listed persons, either directly or indirectly. however, this proposal for measures has not been fully transferred to the regulation (eu) 2020/1998, which only includes the freezing of funds and the prohibition of making them available, given the complexity of ensuring uniformity in a competence that does not belong to the union, but to the member states. this circumstance calls into question whether the objective of these sanctions, which as the european parliament recalled should be the criminal prosecution of the perpetrators through national or international jurisdictions to combat impunity, is accessible through the freezing of funds, or will simply serve as a measure to prevent the flow of capital and financing to non-state entities or individuals not protected by jurisdictional immunities. it should be recalled at this point that, despite the wording of the regulation (eu) 2020/1998, the rule of immunity from jurisdiction and execution of certain state agents and entities for the commission of the crimes mentioned above only lapses when the prosecution is carried out by the agent’s own state or by an international criminal court. thus, as the international court of justice stated in 2002 in the arrest warrant case between belgium and the democratic republic of the congo, “the court has carefully examined state practice, including national legislation and those few decisions of national higher courts, such as the house of lords or the french court of cassation. it has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule granting immunity from criminal jurisdiction and inviolability to incumbent ministers for foreign affairs, where they are suspected of having committed war crimes or crimes against humanity”30, with the noted exceptions of national prosecution, prosecution by an international court and withdrawal or renunciation to the immunity by the state (torres 2002). conjugating such a rule with the sanctioning of national agents will be a complex fit for member states jurisdictions bound to respect not only european law but also international law. 2.3. the procedure for the adoption and modification of measures as underlined by the european parliament prior to the adoption of the regime, “(...) the credibility and legitimacy of this regime are conditioned by its full compliance with the highest possible standards in terms of the protection and observance of the due process rights of individuals or entities concerned; insists, in this regard, that decisions to list and delist individuals or entities should be based on clear, transparent and distinct 30 para. 58 of the judgment of 14 february 2002, case concerning the arrest warrant of 11 april 2000 (democratic republic of the congo v. belgium). maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 263 criteria and directly linked with the crime committed in order to guarantee a thorough judicial review and redress rights; calls for the systematic inclusion of clear and specific benchmarks and a methodology for the lifting of sanctions and for de-listing”31. however, this key concern has not been reflected in the instrument of its adoption. as can be deduced from the guidance instruments, the listing decision will come from the council, being a political decision that must consider the elements identified in article 1.4 in the case of non-state actors; namely, “the objectives of the common foreign and security policy as set out in article 21 teu, and (b) the seriousness or impact of the abuses”. the listing process follows the general guidance on other restrictive measures reflected in the interpretative documents32. thus, it is established that the proposal for inclusion must come from any member state or from the european external action service33 and that, once notified through the coreu34 system, it will be discussed in the relevant regional group, with the participation of the eeas and commission’s experts on sanctions, together with the council’s legal service, and other actors may be invited to such discussions in order to improve the understanding of the relevance of the measures in question. all aspects will be discussed in the group of external relations counsellors who will examine the sanction proposal, together with the eeas and the commission, prior to the adoption of the cfsp decision by the council which will have to be taken unanimously, a circumstance deeply regretted by the european parliament35 all deliberations will be confidential. the publicity of the measures is established by means of individual notification (complex to carry out, especially in the case of non-state entities or individuals protected in the states) and publication in the ojeu, informing at that time of the process for making observations, requesting a review of the measures, or challenging them before the cjeu. for the modification of the measures (beyond possible corrections due to errors in the identification of the subjects), all participants will be consulted again, and a periodic review will be carried out to assess their adjustment or possible evolution. requests for deletion shall be addressed to the general secretariat of the council, which shall forward them to the council of the european union, the relevant regional group, the council’s legal service, and the group of councilors on external relations for discussion. 31 european parliament resolution of 14 march 2019 on a european human rights violations sanctions regime (2019/2580(rsp)). available at https://www.europarl.europa.eu/doceo/document/ta-8-20190215_en.html. 32 see, op. cit., notes 20 and 21. 33 hereinafter referred to as the eeas. 34 coreu is an open communication system between the eu member states, the council, the eeas, and the european commission that allows for a regular flow of information with the aim of facilitating communications on cfsp matters. 35 point 1 of the european parliament resolution of 8 july 2021 on the comprehensive eu human rights sanctions regime (eu magnitski act) (2021/2563(rsp)). available at https://www.europarl.europa.eu/ doceo/document/ta-9-2021-0349_es.pdf. https://www.europarl.europa.eu/doceo/document/ta-8-2019-0215_en.html https://www.europarl.europa.eu/doceo/document/ta-8-2019-0215_en.html https://www.europarl.europa.eu/doceo/document/ta-9-2021-0349_es.pdf https://www.europarl.europa.eu/doceo/document/ta-9-2021-0349_es.pdf the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 264 as can be seen, and logically to ensure its effectiveness, the measure is only notified to the directly injured party once it has been adopted. the recipient of the measures has the possibility to apply for the annulment of the decision on the cjeu, but the appeals will then be subject to the two-month period of such procedure. given its application in each of the territories of the member states, its individualized response (if the individual so wishes) would be extremely costly and detrimental to their rights to defense and contradiction36, as well as potentially conflictual for the principle of generality of application of eu law in cases of forum-shopping. moreover, being a person allegedly responsible for the commission of crimes that entail the obligation of prosecution for the member states, it is doubtful whether the recipient of the measure would want to appear before any national authority to defend their rights. the problematic regarding the respect of the rights to defense, fair trial and contradiction has been analyzed by the cjeu in the context of other targeted regimes. as an example, we can mention the judgment in the case t-258/20, oleksandr viktorovych klymenko (applicant) v. council of the european union of 3 february 202137. mr. klymenko was requesting the annulment of several decisions that provided for his inclusion in the list of persons subject to a freezing funds’ measure under the regime provided by decision 2014/119/cfsp concerning restrictive measures directed against certain persons, entities, and bodies in view of the situation in ukraine38. in support of his action for annulment, the applicant put forward five pleas in law alleging, (i) infringement of the duty to state reasons; (ii) a manifest error of assessment and misuse of powers; (iii) third, infringement of the rights of defence and of the right to effective judicial protection; (iv) lack of a legal basis, and (v) infringement of the right to property39. regarding the third plea, the cjeu declared that: “according to settled case-law, in a review of restrictive measures the courts of the european union must ensure the review, in principle the full review, of the lawfulness of all union acts in the light of the fundamental rights forming an integral part of the 36 the institute of international law already in its 2017 session recalled the need to care for such fundamental rights in the adoption of targeted sanctions mentioning how such eu measures have violated human rights on many occasions. see: institute of international law, 12th commission, final resolution, review of measures implementing decisions of the security council in the field of targeted sanctions, session of hyderabad, 9 september 2017. 37 judgment in the case t-258/20, oleksandr viktorovych klymenko (applicant) v. council of the european union of 3 february 2021 (also, the judgment). ecli:eu:t:2021:52. available at https://curia.europa .eu/juris/document/document.jsf?text=&docid=237287&pageindex=0&doclang=en&mode=lst&dir =&occ=first&part=1&cid=5742144. 38 council decision 2014/119/cfsp of 5 march 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in ukraine. oj l 66, 6.3.2014, p. 26–30. available at https://eur-lex.europa.eu/eli/dec/2014/119(1)/oj. 39 par. 48 of the judgment. https://curia.europa.eu/juris/document/document.jsf?text=&docid=237287&pageindex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5742144 https://curia.europa.eu/juris/document/document.jsf?text=&docid=237287&pageindex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5742144 https://curia.europa.eu/juris/document/document.jsf?text=&docid=237287&pageindex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=5742144 https://eur-lex.europa.eu/eli/dec/2014/119(1)/oj maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 265 eu legal order, which include, inter alia, the right to effective judicial protection and the rights of defence, as enshrined in articles 47 and 48 of the charter of fundamental rights of the european union (‘the charter’) (see judgment of 25 june 2020, klymenko v council, t-295/19, eu:t:2020:287, paragraph 59 and the case-law cited). (…) in so far as the charter contains rights which correspond to rights guaranteed by the echr, such as those provided for by article 6, their meaning and scope are, under article 52 (3) of the charter, the same as those laid down by the echr”40. having in mind such scope of interpretation and application of the rights of defence and of the right to effective judicial protection, the cjeu has highlighted the necessity for the council to not only indicate why it has considered such rights as respected but also assure itself that the national authorities had comply with such rights if the council relies in any national proceedings before sanctioning the individual. 3. application of the restrictive measures regime during the year 2021 after the entry into force of the above instruments (decision and regulation), the council has proceeded on four occasions to the inclusion of subjects or modification of the regime (martín 2022)41. the first decision in this regard was issued on march 2, 202142, justifying their adoption in the detention of russian opposition politician alexei navalny and denouncing “the continuing serious nature of human rights violations in russia”43. according to the decision, the first four persons were included in the list of restrictive measures, all of them russian state agents (the director of the russian federal penitentiary service; the chairman of the investigative committee of the russian federation; the prosecutor general; and the director of the federal service of the national guard troops of the russian federation), accused of the serious abuses and human rights violations committed by the arrest and detention of mr. navalny, and in those that followed in russia, “including arbitrary arrests and detentions and systematic and widespread violations of freedom of peaceful assembly and association, including through the violent repression of protests and demonstrations.” 40 par. 64 and 99 of the judgment. 41 our investigation involving the different amendments of the original decision and regulation closed on april 6, 2022. 42 council decision (cfsp) 2021/372 of 2 march 2021 amending decision (cfsp) 2020/1999 concerning restrictive measures against serious human rights violations and abuses, ojeu li 71/6, 2.3.2021. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a32021d0372. 43 ibid, point 4 of the whereas of the decision. https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a32021d0372 the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 266 the second decision took place on march 22, 202144. in it, the council recalled that the main function of this new regime was “the union’s determination to strengthen its role in addressing serious violations and abuses of human rights around the world. realizing the effective enjoyment of human rights for all is a strategic objective of the union. respect for human dignity, freedom, democracy, equality and the rule of law and respect for human rights are fundamental values of the union and of its common foreign and security policy” and that it was therefore concerned about “serious violations and abuses of human rights in various parts of the world, such as torture, extrajudicial executions, enforced disappearances or the systematic use of forced labor committed by individuals and entities in china, the democratic people’s republic of korea, libya, eritrea, south sudan and russia”. thus, it included not only individuals linked to abusive state structures, but also three state agencies and one non-state militia (the kaniyat militia in libya), and even individuals at the head of non-state entities and involved in situations of internal armed conflict, such as the head of the kaniyat militia in libya or the major general of the army of the south sudan people’s defense forces of south sudan (spdfss). the next modification of the list took place on december 6, 202145. this modification involved the deletion of one of the individuals due to his death and the modification of some of the entries that already referred to the individuals based on the inclusion of more information on the reasons for the measure. the last modification of the list was decided on december 13, 202146. this modification referred to the inclusion of one entity (wagner group) and several individuals involved with it (dimitriy utkin, stanislav evgenievitch dychko, and valery zakharov). wagner group is defined as a russia-based unincorporated private military entity, led by dimitriy utkin and financed by yevgeny prigozhin. for the european union, the wagner group is responsible for serious human rights abuses in ukraine, syria, libya, the central african republic (car), sudan and mozambique, which include torture and extrajudicial, summary, or arbitrary executions and killings. mr. prigozhin had been the subject previously of other restrictive measures for his activities in libya as “financier of the wagner group” and has presented two actions against such decisions that have been dismissed by the cjeu47. in the case of the council decision (cfsp) 2021/2197 of 13 december 2021 amending decision (cfsp) 2020/1999, mr. prigozhin’s representatives have raised four pleas in law that are decisive 44 council decision (cfsp) 2021/481 of 22 march 2021 amending decision (cfsp) 2020/1999 concerning restrictive measures against serious human rights violations and abuses, ojeu li 99/25, 22.3.2021. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a32021d0481. 45 council implementing regulation (eu) 2021/2151 of 6 december 2021 implementing regulation (eu) 2020/1998 concerning restrictive measures against serious human rights violations and abuses, ojeu l 436/1, 7.12.2021. available at https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex:32021r2151. 46 council decision (cfsp) 2021/2197 of 13 december 2021 amending decision (cfsp) 2020/1999 concerning restrictive measures against serious human rights violations and abuses. 47 the last judgement has been adopted on 1st july 2022, after this investigation was closed. https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a32021d0481 https://eur-lex.europa.eu/legal-content/en/txt/?uri=celex:32021r2151 maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 267 to assess the validity of such measures in relation to eu law and international law48. firstly, the need to motivate any decision. secondly and thirdly, a misuse of powers on part of the council and an error of assessment regarding the relationship between mr. prigozhin and the wagner group; and lastly the violation of several fundamental rights, namely, articles 10 (freedom of expression), 6 (right to a fair trial) and 13 (right to an effective remedy) of the european convention for the protection of human rights and fundamental freedoms49. the new prigozhin case is still pending on the cjue but previous case law of the court on the matter permits to affirm that the protection of the right to fair trial and to an effective remedy is one of the obstacles to be overcome by the eu to ensure the effectivity and legality of the regime. 4. conclusion criticism of the regime has not been long in coming. but mainly because of its markedly political character (youngs 2020) or its demonstrated lack of effectiveness in achieving the primary objective of promoting the end of impunity (portela 2021). once again, we return to the initial doubt as to whether this type of measure favors the primary objective of ending impunity or entrenches the alleged perpetrators in the territories they already control and, on whose population, they are committing the abuses they are trying to eliminate by putting pressure on the perpetrator. although the objective of having a regime like that regulated by the us magnitski act50 has undoubtedly been achieved, it is also true that the regime is insufficient in view of the magnitude of the proposed objective. there is no doubt that the eu, interested in expanding its influence at the international level, must have an instrument that allows it to react in those cases in which coordinated action from the united nations security council proves insufficient, but the mechanisms put in place are far removed from the purpose of such measures: the repression of conduct. given the distance of these subjects from the territories of the union, it is doubtful that the prohibitions will affect them in any way. different national jurisdictions are implementing different legal solutions to the problems that raise the effectiveness of the sanctions in their own legal regimes but the need for a european approach collides with the principle of conferral as defined by article 5 of the treaty of the european union. as an example, spain had to amend its national legislation regarding the land registry due to the impossibility to proceed to the inscription of the sanctions in cases of properties owned by “front-men” of sanction individuals or entities. perhaps it would be more effective, if the end of impunity for serious human rights violations and abuses is the real objective and no other, to promote a broad 48 action brought on 11 february 2022prigozhin v council (case t-75/22) (2022/c 148/47). ojeu c 148/35, 4.4.2022. available at https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:62022tn0075 &from=en. 49 convention for the protection of human rights and fundamental freedoms, done in rome, 4.11.1950. 50 government information available at https://www.state.gov/global-magnitsky-act/. infographic on the magnitski act available at https://www.state.gov/wp-content/uploads/2020/12/infographic_v1.8-508.pdf. https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:62022tn0075&from=en https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:62022tn0075&from=en https://www.state.gov/global-magnitsky-act https://www.state.gov/wp-content/uploads/2020/12/infographic_v1.8-508.pdf the european union protection of human rights through its global policy the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 268 application of the principle of universal jurisdiction in the territory of the eu and to encourage cooperation to this end, actively promoting the ratification of the rome statute for the icc and carrying out the work of monitoring compliance with human rights in the framework of bilateral or multilateral policies of association or neighborhood that the union promotes with other areas of the world. in any case, the criminal prosecution of most of the individuals included in the list of sanctioned individuals before international criminal jurisdictions seem not only complex (due to the assumed lack of collaboration of the states of nationality), but also due to the absence of some of the elements that define the international crimes for which they could be indicted. in any case, the eu is new in the application of sanctions to individuals in the context of decision (cfsp) 2020/1999 and regulation (eu) 2020/1998, so only time will allow to be fair with its assessment. the armed conflict in ukraine has given the eu the opportunity to prove what can be accomplished by the application of such regimes. it is up to the council alone to ensure that european society sees in its action a real mechanism of involvement with human rights and not a political game that is only apply against those states (and their agents) that are not in the interest of the eu and its relations. references bassiouni, m.c. (1999), crimes against humanity in international criminal law, martinus nijhoff publishers, the hague. bassiouni, m.c. (2011), crimes against humanity: historical evolution and contemporary application, cambridge university press, new york. https://doi. org/10.1017/cbo9780511976537 bou franch, v. (2009), ‘crimes against humanity in contemporary international law’, in n. zaikos (coord), the diversity of international law. essays in honour of professor kalliopi k. kaoufa, martinus nijhoff publishers, pp. 547-580. https:// doi.org/10.1163/ej.9789004180390.i-676.184 capellà i roig, m. (2005), la tipificación internacional de los crímenes contra la humanidad, tirant lo blanch, valencia. hölbert, c. (2017), ‘a comparative study: where and why does the eu impose sanctions?’, unisci magazine, vol. 43, pp. 53-71. martín martínez, m. (2022), ‘the eu global human rights sanctions regime, a year on: some certainties and many a doubt’, ordine internazionale e diritti umani, vol. 1/2022, pp. 71-98. portela, c. (2005), ‘where and why does the eu impose sanctions?’, politique européenne, vol. 17, no. 3, pp. 83-111. https://doi.org/10.3917/poeu.017.0083 portela, c. (2021), ‘horizontal sanctions regimes: targeted sanctions reconfigured?’, in c beaucillon (coord), research handbook on unilateral and extraterritorial sanctions, edward elgar, cheltenham, pp. 441–457. https://doi.org/10.4337/9781839107856. 00035 https://doi.org/10.1017/cbo9780511976537 https://doi.org/10.1017/cbo9780511976537 https://doi.org/10.1163/ej.9789004180390.i-676.184 https://doi.org/10.1163/ej.9789004180390.i-676.184 https://doi.org/10.3917/poeu.017.0083 https://doi.org/10.4337/9781839107856.00035 https://doi.org/10.4337/9781839107856.00035 maria torres pérez the age of human rights journal, 19 (december 2022) pp. 255-269 issn: 2340-9592 doi: 10.17561/tahrj.v19.7071 269 portela, c. (2021), ‘the eu human rights sanctions regime: unfinished business?’, revista general de derecho europeo, 54, pp. 19-44. rosas, a. (2016), ‘restrictive measures against third states: value imperialism, futile gesture politics or extravaganza of judicial control?’, il diritto dell’unione europea, vol. 4, pp. 639-640. torres pérez, m. (2002), ‘inmunidad de jurisdicción penal e impunidad: el fallo de la corte internacional de justicia de 14 de febrero de 2002)’, tribunales de justicia, vol. 11, pp. 97-100. torres pérez, m. (2008), la responsabilidad internacional del individuo por la comisión de crímenes de lesa humanidad, tirant lo blanch, valencia. youngs, r. (2020), ‘the new eu global human rights sanctions regime: breakthrough or distraction?’, carnegie europe, https://carnegieeurope.eu/2020/12/14/new-euglobal-human-rights-sanctions-regime-breakthrough-or-distraction-pub-83415. received: april, 12th 2022 accepted: july, 29th 2022 https://carnegieeurope.eu/2020/12/14/new-eu-global-human-rights-sanctions-regime-breakthrough-or-distraction-pub-83415 https://carnegieeurope.eu/2020/12/14/new-eu-global-human-rights-sanctions-regime-breakthrough-or-distraction-pub-83415 the european union protection of human rights through its global policy: the implementation of t abstract 1. introduction 2. the regime of restrictive measures against serious human rights violations and abuses 2.1. the legal support of the restrictive measures regime 2.2. scope of the restrictive measures regime a) “sanctionable” subjects b) the “gross violations and abuses of human rights” covered by the regime c) applicable restrictive measures 2.3. the procedure for the adoption and modification of measures 3. application of the restrictive measures regime during the year 2021 4. conclusion references the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 140 any chance for the enforceability of the human right to subsistence? celia fernández-aller1 abstract: it is not true that the idea of the right to subsistence should not give rise to much controversy. in fact, social rights are not considered as fundamental rights by everyone. the aim of this paper is to analyze whether abstract social rights –and the right to subsistence in particular– should be put in constitutions and laws and if judges should be given powers to interpret them. the philosophical foundations and the content of the right are studied and five great challenges are presented, although the most powerful one is to focus on the social and political enforceability of the fundamental right to subsistence. assessing the effectiveness of the right to subsistence, and the right to food particularly, is a complex issue. in the legal discourse, the question seems to be only suggested. even when the constitutions expressly recognize this right in some countries, its implementation faces many constraints. the progressive realization of esc rights requires a complex interaction of policies and programs in a wide range of sectors and institutions. the scientific method used in this work is the legal-sociological method, regarding the understanding of the rules, the lack of them, their effectiveness, etc. several methodological techniques have been used, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity. keywords: economic, social and cultural rights; enforceability; right to subsistence; right to food; international law of human rights summary: 1. the context of social rights. 2. a new social right?. 3. legal foundations of the right to subsistence: the case of the right to food. 3.1 the content of the right to food. 3.2 enforceability. 3.3 entitlements and duties. 3.4 links between the right to food and other human rights. 4. the challenges. 5. conclusions 1. the context of social rights as many authors recognize (robinson, 2004), “a timely and significant debate has begun on how nongovernmental organizations (ngos) and other civil society actors can most effectively influence states and third party actors to progressively implement their economic, social, and cultural (esc) rights obligations”. among social and economic rights, the right to food is a very relevant and current issue, as “food justice emphasises hunger as a human rights issue, and underlines the 1 celia fernández-aller is ph.d in law, and lecturer at the technical university of madrid. she is a researcher in the sustainable organizations group. she is a member of the innovation and technology for development center in madrid (mariacelia.fernandez@upm.es). the author would like to express her thanks to profesor steven greer for his helpful guidance, in informal conversations and email exchanges during the visiting research fellowship she held at the university of bristol law school from june to october 2017, and with respect to an earlier draft of this article thereafter. the autor is also grateful to jose maria medina, professor in loyola andalucía university. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 141 central place of grassroots organisations and small-scale producers in the realisation of fair systems” (millner, 2017). there is a difference between economic, social and cultural rights and civil ones concerning implementation, as the implementation of the first ones is weaker and gradual. the purpose of this paper is to define a realistic conceptual framework for these rights, which could be based in a positive legal system, always bearing in mind the influence of globalization in the process and the interrelations between them. we could argue that the international human rights law has recognized these rights in the international covenant of social, economic and cultural rights of 1966. but there are important limitations concerning the 'international human rights law' we can´t ignore: the impact of international law upon the world has been disappointing: “in spite of this progress, however, the icescr remains a blunt instrument that is unlikely, alone, to bring about a rapid drop in deaths caused by hunger and malnutrition (martin, m.a, vivero, 2011)”. the international bill of rights is nevertheless one of the finest achievements of humanity, but we must be realistic about what it can achieve2. some authors (gearty, c., 2006) express this idea clearly: the phrase ‘human rights’ is a strong one, epistemologically confident, ethically assured, carrying with it a promise to the hearer to cut through the noise of assertion and counter-assertion, of cultural practices and relativist perspectives, and thereby to deliver truth. to work its moral magic, human rights needs to exude this kind of certainty, this old-fashioned clarity”. a very clarifying look at the realistic approach to human rights is given too (greer, s, 2009): “although human rights must be taken seriously and installed at the very center of the emergent global value system, realism acknowledges that they can never be fully implemented. this is not because of the innate wickedness of people, those who exercise power, or the institutions and systems within which we all live our lives. it is because determining what full implementation means will always be a matter of controversy since human rights are by nature vague, imprecise and open to competing interpretations even by those who are fully committed to them”. “a feature of human rights realism is the commitment to enshrining international human rights as constitutional rights in national legal systems. but this, in its turn, raises two problems. first, it tends to turn human rights into formal legal doctrines developed by lawyers and judges more in accordance with doctrinal logic than with their underlying purpose. the second problem with the national institutionalization of human rights is that it creates huge political dilemmas about the role of judges in the legislative process”. 2 if we are realistic, we must accept that the optional protocol to the covenant on economic, social and cultural rights has been ratified by 24 states, which turns the initial euphoria around the optional protocol in a really disappointing instrument to enforcing social rights. any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 142 others think the full realization of human rights is more a matter of ethics. a good example (paupp, 2014) argues that to be realized, rights to peace and development must be enshrined as global constitutional directive principles, rooted as much in a new global ethics as in law or politics. anyway, we should find the way to introduce these social rights in the domestic law system to have any chance of enforceability for them. but trying to solve most of the problems described above and from a realistic approach. and finally, maybe we have to foster imaginative systems of socio-political enforceability after assuming that the legal one is not such a useful one. a good discipline when thinking about controversial rights is to go back to history and to first principles. the human rights ideal derives fundamentally (though not straightforwardly) from the idea of natural rights advocated by thinkers, such as hobbes, locke and rousseau in the 17th and 18th centuries, who thought the entire catalogue of what we now think of as civil and political rights could be rationally deduced from facts of nature, particularly from the ‘equal natural right to life’. this is, of course, a controversial, and a much criticized, claim. but it can be understood based in the following ideas: if we strip away all the assumptions of culture and civilization –such as those which maintain that the rich and powerful have a stronger claim to live and to survive than anyone else– we arrive at the simple idea that, prima facie, no human baby born into the world has a stronger claim to live than any other. they each have ‘an equal right to life’ in other words. now, if there is such a right, the right with which it is most intimately connected is the right to subsistence. rather confusingly the natural rights thinkers referred to this as the ‘right to property’ because in order to survive we need to take ownership of nature in the most fundamental way possible –by digesting it. but, for these thinkers all the natural rights, including the right to life, were negative rights. in other words, the obligation upon others, including state and society, was simply to refrain from interfering with them but not actively to deliver them. the right to food in this model is, therefore, the right to engage in the struggle for survival on an equal basis with others. but, apart from the ‘natural obligation’ upon parents to feed and to care for their children, this does not give rise to an obligation on the part of anyone else to feed other people. in settled and stable conditions the function of law and state is simply to guarantee that the struggle for survival is pursued peacefully. however, in conditions of scarcity the natural rights thinkers would have accepted those who had a surplus of food might have a charitable, moral or religious obligation to feed those with insufficient food. and the state would have an obligation to provide, at least, based in the international human rights law. the natural rights model was, of course, fundamentally altered by democratization and socialism because once everyone had the vote they could quite reasonably demand that, in return for paying taxes, the state should make provision for social security, education, health care etc. but this was limited to self-governing and self-financing political communities. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 143 however, since the advent of democratization, globalization has arguably created, or begun to create, a single global community. one clear result is that the richest parts of the world are rich largely because the poor parts of the world are poor (un special rapporteur on the right to development, 2017). so a global or universal ‘right to subsistence’ might be derived from a theory of global justice where the central argument would be that the global distribution of rights and obligations is out of balance and the rich parts of the world have political and moral obligations to do a great deal more to enhance development in poorer parts of the world. therefore, the ‘right to subsistence’ is best understood in developed societies as part of the social security obligations of states, and globally as part of the package of development rights which are held collectively by developing states. but, incidentally, the right to development can only be held collectively and it’s essentially political/moral and can’t be legally enforced3. because the processes of globalization are making the world increasingly integrated, a global right to social security may be emerging which would include a global positive right to subsistence. but this is unlikely to be effectively institutionalized until the kinds of pre-requisites which made social security possible in liberal democracies are also globalized. and what it would mean in detail and how it would be enforced present considerable challenges. the 2030 agenda for sustainable development goals (sdg), although not containing explicitly the right to subsistence, includes the objective of eradication of hunger. if we continue advancing at the present rate and with the same efforts, we won´t be able to achive the sdg, neither the realization of the human right to subsistence. the most vulnerable, as usual, will be the most disadvantaged. the foundations of this right is clearly linked to the concept of global distributive justice (armstrong, c., 2012), especially the equalitarism (beitz, caney). the vast majority of theorists of global justice –whether of the minimalist or egalitarian variety– are prepared to argue for subsistence rights as part of any satisfactory account of human rights. whereas the minimalist accounts set their sights relatively low in aiming to secure a decent minimum for all (although this could still be a very challenging objective in practice), egalitarian accounts are less easily satisfied. even if everyone’s basic needs were met, they would still offer reasons to be uneasy about the inequalities which might remain. in fact, we could object to global inequalities for a wide range of reasons, and different egalitarian theories will pick out different reasons on which to focus. 3 anyway, the united nations human rights council, in resolution 33/14, adopted on 29 september 2016, decided to appoint a special rapporteur on the right to development. according to the resolution, the special rapporteur’s mandate includes: contributing to the promotion, protection and fulfilment of the right to development in the context of the implementation of the 2030 agenda for sustainable development. any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 144 egalitarians frequently tell us that the degree of inequality at the global level is immense. charles beitz, for instance, tells us that ‘we live in a world whose massive inequalities dwarf those found within the domestic societies familiar to us’. darrel moellendorf observes that ‘our world is marked by deep and pervasive inequalities’. simon caney tells us that ‘the world that we inhabit is characterized by staggering inequalities’. here beitz, moellendorf and pogge apparently agree that global inequalities are profound, and morally serious. all of them defend four principles: everyone has a human right to subsistence; one should prioritize improving the position of the worst; equal pay for equal work; global equality of opportunity. finally, one powerful reason for defending the right to subsistence is the opinion of people who is starving (smith-carrier, t.; ross, k.; kirkham, j. and decker pierce, b., 2017). as the committee on economic, social and cultural rights highlights: the real potential of human rights lies in its ability to change the way people perceive themselves visà-vis the government and other actors (committee on economic, social and cultural rights). 2. a new social right? reluctance to accord economic, social and cultural rights the same level of recognition and enforceability affects disproportionally the most vulnerable members of society. it is a fact that economic, social and cultural rights don’t have the same enforceability as civil and political ones. they have been considered more a matter of policy than fundamental rights. some arguments against constitutional social rights are that courts can not adjudicate positive rights (although in practice, they do); that this would violate the separation of powers; that social rights are too vague and conflict with each other (as civil and political ones...). a deep analysis of the literature reveals that more and more academics are starting to pay attention to social rights and finding new ways of enforceability (ssenyonjo, m., 2016). courts, as well, are moving towards a more open vision of these rights: “historically, the attitude of the state towards the poor, the elderly and the incapable has not been uniformly benign. but for the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that [the sick, elderly and disabled] are accommodated and looked after through the agency of the state and at its expense if no other source of accommodation and care and no other source of funding is available. this is not a point which admits of much elaboration. that the british state has accepted a social welfare responsibility in this regard in the last resort can be hardly a matter of debate” (king, 2012). social rights should be understood as rights to a social minimum. this can be explained as follows: there are, however, many objections to constitutional social rights, which are outlined by king in the first chapter of judging social rights: a) firstly, judicially enforced social rights might seem to lack democratic legitimacy. as king notes, nearly all celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 145 of us pay into and take out of the public system. there could therefore hardly be a better scenario in which the voice of each should count equally which would suggest that the appropriate forum for resolving disputes involving resource allocation is the legislature, not the courtroom. to this we might add that even if the welfare state is a settled feature of most liberal democracies, it remains the case that reasonable disagreement about the nature and extent of the state's welfare obligations constitutes a key political fault line. constitutional social rights might therefore threaten to remove important and contested issues from the political process to the hands of unelected judges; b) secondly, the legal philosopher lon fuller coined the term 'polycentricity' to describe issues that he regarded as unsuitable for adjudication on the basis that they involve a vast number of interconnected variables. fuller famously employed the metaphor of a spider's web to describe problems where a decision on one issue —or a pull on one strand of the web— will have far-reaching and unforeseeable consequences. fuller's point was not that such problems are incapable of resolution but rather that —with their reliance on an adversarial procedure typically involving two parties— are inappropriate forums for the resolution of polycentric issues, given that the full range of affected parties will not normally be represented. the allocation of scarce resources amongst competing needs would seem to be a paradigmatic example of a polycentric problem, given that a decision to allocate resources to a particular party will frequently have complex repercussions for other parties; c) thirdly, many decisions relating to social rights —for example, whether a particular drug is safe— would seem to involve considerable expertise not typically possessed by judges; d) fourthly, there is a clear need for flexibility in the provision of social rights because of the possibility of unforeseen information or changing circumstances. courts, with their capacity to issue binding orders subject to a system of precedent, might threaten to introduce an unwelcome element of rigidity into the welfare state. all of this leads king to characterise the constitutionalization of social rights as a risky enterprise (wesson, 2012). jeff king has an interesting theory called incrementalism, which can help in this context. courts should adopt an “incrementalist” approach to social rights adjudication. by incrementalism king means that courts should avoid judgments that generate significant, nationwide allocative impact. courts should instead give decisions on narrow, particularised grounds or, where far-reaching implications are unavoidable, decide cases in a manner that preserves flexibility. it follows that judicial decision-making should ordinarily proceed in small steps, informed by past steps, and small steps might affect large numbers of people, but in ways that preserve latitude for adaptation. there is quite a big consensus around the idea that the right to subsistence is, as well as physical security and liberty, a basic right. that is, a moral minimum (king´s social minimum4), things which every human being will need in order to live a life of any appreciable quality. it consists of the right to unpolluted water, adequate food, shelter, clothing, minimal preventive health care. we understand these rights are absolutely fundamental for anyone’s chances of a minimally decent life. this right to subsistence is recognized in article 11 of the international economic, social and cultural rights covenant. 4 the role of the courts is to play a subsidiary but nevertheless important role in securing the social minimum in cooperation with the other branches of government. any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 146 the right to subsistence can be understood as a fundamental human right in the internationalist sense, as ius cogens based in the article 4 of the international covenant on civil and political rights. but it is fundamentally a negative and conditional one. if we have the physical and mental capacity to do so, we have the obligation to labour to survive. the state does not have the unconditional obligation to provide us with subsistence. in other words: 'from each according to their ability. to each according to their legitimate needs.' the state has, of course, a duty to develop social policies ensuring a conducive environment in which anyone can have a job. we think that there are such things as social and economic rights. at the international level they exist as political and moral claims, but there are legal duties established at the international enforceable laws, such as the economic, social and cultural rights chart. while they are, of course, part of 'international human rights law', this lacks two of the most important characteristics of positive law —legislation and effective judicialization— which give law the capacity to make a significant direct difference to people's lives. at the domestic level social and economic rights are partially justiciable. even in states where they are as firmly legally institutionalized as possible, the most that courts and lawyers do is to remind public authorities genuinely to take them into account. this is because judges do not usually think they have neither the democratic legitimacy nor the technical know-how to decide upon which social and economic priorities tax revenue should be spent. it would be useful to give courts some powers to correctly interpret social rights. the road to do so is just starting. there is a need to create and to sustain social and political conditions that help these rights to be respected, protected and fulfilled, at home and abroad. lawyers and courts have different professional responsibilities domestically and internationally. domestically, they should strive to ensure that positive national law is interpreted and applied in a rights-sensitive manner. and internationally, they should act ethically, particularly in managing the affairs of multinationals (mncs), eg they should not be involved in designing tax avoidance schemes which enable mncs to collude with corrupt elites to strip the assets of poor nations, locking them into long-term underdevelopment. many authors don´t agree with the idea of recognizing new human rights, as the more the distinction between 'human' and 'other kinds' of right is blurred the more difficult it becomes to establish an appropriate hierarchy and to settle conflicts between rights. rather than expanding the catalogue of human rights (brysk, 2017), they think it would be better if the ones we have already were better respected and enforced. all injustices can be addressed within the current human rights framework rather than in terms of new human rights. re-framing newly discovered injustices in terms of new human rights won't necessarily take us any closer to their realisation. if we focus in the right to subsistence, it would be better to introduce it in the domestic law rather than fighting for new rights as the right to development, or the right to solidarity, which could help achieving the right to subsistence. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 147 the most effective and democratically acceptable way to promote economic and social rights is a political process, while courts have the task of enforcing legislative decisions and holding the political branches accountable through already existing mechanisms, such as control of procedure and the examination of reasonableness and non-discrimination in administrative decision-making. the political process has been particularly important in the origin, for example, of the right to water. the water justice movement, not directly linked to the human rights one, has been extraordinary active in the social enforceability of this right. this social movement is needed now to push the achievement of the right to subsistence, and particularly, the right to food5. 3. legal foundations of the right to subsistence: the case of the right to food we are focusing on one of the elements of the right to subsistence, as it is a wide range one. this is the right to food, with has main international instruments that constitute or develop it: • the charter of the organization of american states, article 34: “states likewise agree to devote their utmost efforts to accomplishing the following basic goals: …j) proper nutrition, especially through the acceleration of national efforts to increase the production and availability of food”; • universal declaration of human rights: article 25 “ everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” • international covenant on economic, social and cultural rights, article 11: 1. the states parties to the present covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. in paragraph 2 of article 11: “the fundamental right of everyone to be free from hunger” is recognized. article 11, especially the right to food, has been interpreted by the un committee on economic, social and cultural rights in its general comment no. 12, from 1999. the committee mainly interprets the state obligations that derive from the right to food, the principles that govern it, its normative content, the steps which states should 5 this is one of the most powerful lines of research of the observatory for the right to food in spain, which has been created recently : https://www.derechoalimentacion.org/ any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 148 take to achieve national implementation and states what constitutes a violation of the right. other international agreements in addition to basic instruments that are also binding and yet more specific have recognized the right to food within its normative body as a human right that generates obligations for states: • the convention on the elimination of all forms of discrimination against women – cedaw • the convention on the rights of the child – crc • international convention on the protection of the rights of all migrant workers and members of their families –icrmw • indigenous and tribal peoples convention, 1989 • rome statute the right to food is also recognized in various declarations: • universal declaration on the eradication of hunger and malnutrition, 1974, which literally reads “very man, woman and child has the inalienable right to be free from hunger and malnutrition in order to develop fully and maintain their physical and mental faculties.” • declaration on the rights of disabled persons, 1975 • convention on the elimination of all forms of discrimination against women, 1979 • declaration on the right to development, 1986 equally, the right to food –or some of its aspects– has been recognized at multiple international summits and reinforced in the corresponding final documents, including: • universal declaration of hunger erradication 1974 • declaration of principles and programme of action of the world conference on agrarian reform and rural development, 1979 • the declaration on the rights of the child, 1989, which recognizes the right of each child to a standard of living adequate for its physical, mental, spiritual, moral and social development. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 149 • world summit for children, 1990 • first international conference on nutrition, 1992, second international conference on nutrition 2012, the declaration and programme of action of the vienna world conference on human rights, 1993, the copenhagen declaration and the programme of action of the world conference for social development, 1995 • the world conference on women, beijing, 1995 • the declaration of rome for world food security, 1996 • the plan of action of the world food summit, 1996, as well as later meetings wfs+5 in 2002 and wfs + 10 in 2006 • the voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security, adopted by the fao in 2004. the voluntary guidelines, the primary source for this monitoring tool, were adopted by the member states of the fao in 2004. the guidelines reiterate the legally binding standards already existing for the right to food in the sources mentioned above, focusing on how states can fulfil their general obligation to progress towards the full realisation of the right to food as soon as possible, in the development, implementation and monitoring of its public policies. 3.1 the content of the right to food there is an implicit message in the un fao voluntary guidelines that the right to food is about ‘democracy, good governance, human rights and the rule of law’ (faovgs, 2005), in other words, ensuring public accountability for protecting the social contract. we are all ‘rights holders’ with the state as the ‘primary duty bearer’ for ensuring food security for all. given that food is a market commodity, more profoundly it is a public good to which all have right of access (vivero poh, ferrando, de schutter, matei, 2018). when dealing with the right to food we have to consider the importance of the human rights approach. there are lots of literature around its legitimacy and its contribution to the fight for the full realization of human rights (fernández-aller, 2008). article 11 of the international covenant on social, economic and cultural rights and general comment 126 have defined the right to food. though often misconstrued as a right not to starve, is in fact an inclusive right to an adequate diet providing all nutritional 6 gc 12 (1999) general comment 12, un committee on economic, social and cultural rights right to adequate food (article 11) e/c.12/1999/5. available at http://www.refworld.org/pdfid/4538838c11.pdf. any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 150 elements an individual requires to live a healthy and active life, and the means to access them. one of the best definitions of the right to food can be find here: ziegler j., golay c., mahon c., way sa. (2011) the definition of the right to food in international law. in: the fight for the right to food. international relations and development series. palgrave macmillan, london. https://doi.org/10.1057/9780230299337_2. another recent reference are: naomi hossain, n.; lintelo, d.; wanjiku kelbert, a. (2019) “a common sense approach to the right to food”, journal of human rights practice, volume 10, issue 3, november 2018, pages 367–387, https://doi.org/10.1093/jhuman/ huy028. published: 09 january 2019. eide, a. (1995) “the right to an adequate standard of living including the right to food”, in economic, social and cultural rights (asbjørn eide, catarina krause & allan rosas eds). a complete definition with a very deep study of the state´s duties in relation with the right to food can be found here: oshaug, a.; barth, w. and eide, a. (1994) “human rights: a normative basis for food and nutrition-relevant policies” food policy 1994 19 (6) 491-516. the special rapporteurs and general comment 12 have agreed the categories and principles. the content has the following categories: availability, physical and geographical accessibility, adequacy, stability-sustainability. the principles are sustainability, participation, accountability, non discrimination and equality, empowerment, human dignity and the rule of law. the committee considers that the core content of the right to adequate food implies the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights. dietary needs implies that the diet as a whole contains a mix of nutrients for physical and mental growth, development and maintenance, and physical activity that are in compliance with human physiological needs at all stages throughout the life cycle and according to gender and occupation. measures may therefore need to be taken to maintain, adapt or strengthen dietary diversity and appropriate consumption and feeding patterns, including breastfeeding, while ensuring that changes in availability and access to food supply as a minimum do not negatively affect dietary composition and intake. free from adverse substances sets requirements for food safety and for a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration and/or through bad environmental hygiene or inappropriate handling at different stages throughout the food chain; care must also be taken to identify and avoid or destroy naturally occurring toxins. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 151 cultural or consumer acceptability implies the need also to take into account, as far as possible, perceived non-nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies. availability refers to the possibilities either for feeding oneself directly from productive land or other natural resources, or for well-functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand. accessibility encompasses both economic and physical accessibility: economic accessibility implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised. economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to adequate food. socially vulnerable groups such as landless persons and other particularly impoverished segments of the population may need attention through special programmes. physical accessibility implies that adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems, including the mentally ill. victims of natural disasters, people living in disaster-prone areas and other specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food. a particular vulnerability is that of many indigenous population groups whose access to their ancestral lands may be threatened. 3.2 enforceability we have examples of recognition at the domestic level in the constitutions of bielorrusia, bolivia, brasil, colombia, congo, costa rica, cuba, ecuador, guatemala, guyana, haití, honduras, kenia, malawi, méxico, moldavia, nepal, nicaragua, panamá, paraguay, sudáfrica, suriname, ucrania (knuth, vidar, 2011). there are different types of constitutional recognition of the right to food: the explicit and direct recognition of the right to food; the right to food as a right implicit in a broader human right; directive principles of state policy; indirect recognition through interpretation of other human rights. there are also standards about access to resources to feed one-self or on food security in specific laws, such as agrarian reform, land use planning laws, fishing laws, consumer protection laws, child protection laws, amongst others that regulate diverse aspects of the right to food. regarding this subject, the incorporation of the right to food into national legal systems in different normative hierarchies allows judges to apply any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 152 the decision in cases and allows lawyers and civil society in general to appeal for its application in order to demand the full realization of the right to food. at the european level, the right to food is absent from every constitution; only lombardía has passed a law on the right to food, although it has not been able to achieve an acceptable level of enforceability. it is difficult, at the european level, to have the right to food recognized by judges. a deep analysis can be found here: vid. b. wernaart; b. van der meulen (*) (2016). the right to food in international law with case studies from the netherlands and belgium. springer international publishing switzerland. g. steier, k.k. patel (eds.), in international food law and policy, doi 10.1007/978-3-319-07542-6_4. we found also some examples (zambrano, 2019) at the judicial level (domestic, regional or international ones), with cases defended in courts all around the world (argentina, canadá, sudáfrica, india, turkey …). for example, the decision of the supreme court of india in both kishen pattmayak and another state of orissa and people´s union for civil liberties v. union of india and others, has recognized the right to food under the right to life stipulated in article 21 of the indian constitution, with reference also to the directive principle of state policy concerning nutrition, contained in article 47. interim orders in the latter case have led to new and better implemented government programmes and have asserted that benefits under these programmes are legal entitlements. such programmes include mid-day meals for school children, food entitlements in childcare centres, subsidized food for a number of specific vulnerable groups, as well as changes to the subsidies directed at all persons below the official poverty line. enforceability must be considered as a three level system: social, political and legal. the legal level must consider the legislation and the international courts, regional courts, domestic courts, nihr (national institutions of human rights). this has been a successful way of realizing rights through history, but it is not the only nor the most effective one. in that sense, some (goig martínez, 2018) have studied the enforceability of the right to food in spain, based in the right to health. the socio-political level must consider the united nations mechanisms (cescr reports, epu, voluntary guidelines, etc.), optional protocol, and the political pressure by citizenship, among others. the social enforceability of the right to food is very important, as in cases where rights cannot be enforced through the courts, they can be asserted through other democratic means, based for instance on parliamentary interventions, the electoral process, the media, international solidarity, street action, or even civil disobedience. this process has worked relatively well with respect to one specific aspect of the right to food— the prevention of famines. as amartya sen has noted, in a democratic political system, allowing a famine to develop would be political suicide for the party in office. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 153 3.3 entitlements and duties in its doctrine the un committee on economic, social and cultural rights has recognized two kinds of obligations for states deriving from economic, social and cultural rights: 1. obligations of general legal character, which are general obligations of immediate application and are: a. the obligation to take steps towards the progressive realization of the right to food using the maximum of resources available, in accordance with article 2.1 of the covenant, with the committee’s general comment no. 3 and no. 12, contains the legal duty to move as expeditiously as possible towards the realization of the right to food. according to general comment no.9 the obligation to take steps using all appropriate means includes legislative means and any other means necessary for the realization of the right to food. this includes administrative, judicial or quasi-judicial remedies. it is necessary to note that the principle of “progressiveness“ means that regressive action is prohibited —the state should not adopt regressive measures that affect the realization of the right to food (warwick, 2016). b. obligation to ensure non-discrimination: states should immediately guarantee that no individual is a victim of discrimination with regard to the right to food or productive resources on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, economic position, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the covenant. c. obligation to ensure international cooperation: this entails the obligations of developed states to support other, less developed, states who lack the sufficient resources in their fulfilment of the obligation to fulfil the right to food. 2. legal obligations of specific character: this is another great challenge. the maastricht guidelines on violations of economic, social and cultural rights (later reissued as un document e/c.12/2000/13), offered guidance across the full range of rights listed in the covenant. the maastricht guidelines stated in paragraph 6: like civil and political rights, economic, social and cultural rights impose three different types of obligations on states: the obligations to respect, protect and fulfil. failure to perform any one of these three obligations constitutes a violation of such rights. the obligation to respect requires states to refrain from interfering with the enjoyment any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 154 of economic, social and cultural rights. thus, the right to housing is violated if the state engages in arbitrary forced evictions. the obligation to protect requires states to prevent violations of such rights by third parties. thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. the obligation to fulfil requires states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. thus, the failure of states to provide essential primary health care to those in need may amount to a violation. a former united nations (un) special rapporteur on the right to food has argued that, although the primary obligation to realize this particular esc right rests with national governments, governments also have ‘extra national obligations’ to respect, protect and facilitate the right to food. he asserts that the duty to respect extends to actions that have a negative impact on people in other countries. accordingly, a country must refrain from imposing food-related sanctions or embargoes and must ensure that its trade policies and relations do not violate the right to food of people in other countries. under the duty to protect, a ‘host’ state must protect individuals against the harmful activities of tncs investing and operating in that state. the former special rapporteur adds that ‘home’ states also have a duty to prevent violations by their companies and corporations operating abroad. the obligation to facilitate has also been interpreted to require states to build a social and international order in which the right to food can be fully realized. in part this requires that states “take account of their ‘extra-national obligations’ in their deliberations in multilateral organizations, including the imf [international monetary fund], world bank and the world trade organization (wto)” (narula, 2013). broadly speaking, the right to food can be interpreted as a claim of individuals on society (starting but not ending with the state). it is an entitlement to be free from hunger, which derives from the assertion that the society has enough resources, both economic and institutional, to ensure that everyone is adequately nourished. however, difficulties arise as soon as we try to flesh out this broad definition and translate it into specific entitlements and responsibilities. the term ‘freedom from hunger’, for instance, lends itself to several interpretations: getting two square meals a day, meeting specific calorie norms, avoiding nutrition-related ailments, and so on. ideally, the right to food should be seen as a right to ‘nutrition’. however, good nutrition itself depends in complex ways on a wide range of inputs: not just adequate food intake but also clean water, basic health care, good hygiene, and so on. even if we confine our attention to food intake, the constituents of good nutrition are a matter of debate among nutritionists. for instance, there is some controversy about the importance of various ‘micronutrients’ for good nutrition. for all these reasons, it is hard to translate the right to food into a specific list of entitlements. similar difficulties arise in clarifying the responsibilities associated with the right to food. the primary responsibility is surely with the state, because the state alone commands the resources (economic and institutional) required to protect everyone from hunger, and because the state is generally responsible for safeguarding constitutional rights. however, the right to food is not the responsibility of the state alone. to illustrate, celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 155 suppose that i come across someone who is dying of starvation on the street. if i am able to do something about it, and if i recognize that every citizen has a right to be free from hunger, it would clearly not be right for me to wash my hands of the situation and say that it is the responsibility of the state. the fact that the state bears the primary responsibility (based in the international framework of legislation) for letting this happen does not absolve me from the moral duty of intervening, if i am in a position to do so. in other words, in some circumstances at least, the responsibility for protecting the right to food is a shared responsability, involving not only the state but also other institutions or individuals. to take another example, suppose that a girl is undernourished because she does not get a fair share of food within the family. clearly, her right to food would be violated. but who is responsible? at some level, state responsibility would be involved, since the state has an overarching duty to eradicate social discrimination. but surely, the girls’ parents (or whoever controls the distribution of food within the family) would also bear a substantial part of the responsibility for this situation. here again, there is a difficulty in apportioning responsibilities for protecting the right to food. finally, other non-state actors could have responsabilities over the violation of the right to food. for example, private companies (martin, j. and bravo, k., 2016), in some cases. but of course, the state has the duty to protect, which means the duty to pass regulation to avoid the violation of the right to food from anyone (including companies). 3.4 links between the right to food and other human rights if the right to food is to be achieved, it needs to be linked with other economic and social rights, such as the right to education, the right to work, the right to information, and the right to health. these economic and social rights complement and reinforce each other. taken in isolation, each of them has its limitations, and may not even be realizable within the present structure of property rights. taken together, however, they hold the promise of radical change in public priorities and democratic politics. there are, also, three facts that are striking about global hunger: • first, hunger is the result of poverty, and not of there being too little food produced. indeed, the number of the hungry has risen at the same time that the levels of aggregate cereals production are breaking record after record, and despite the fact that, on a worldwide basis, increases in annual grain production consistently exceeded demographic growth. • second, the majority of the hungry live in rural areas and depend on smallscale farming for their subsistence: the reason why poverty in the rural areas remains so widespread is because the kind of farming they practice has not been supported as it should. any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 156 • third, climate change, which translates in more frequent and extreme weather events such as droughts and floods and less predictable rainfall, is already having a severe impact on the ability of certain regions and communities to feed themselves, and it is destabilizing markets. the challenge before us, then, is not simply how to produce more food. it is how to produce food in ways that increase the incomes of the poorest producers— smallholders in developing countries who often work in difficult environments and lack access to high-quality soil and irrigation systems. and it is to produce food in ways that build the resilience of agriculture to climate change. this requires more diversity on farms and more crop heterogeneity. because of the “portfolio effect” it allows, diversity of species mitigates risks from extreme weather events, as well as from the invasion of new pests, weeds and diseases, that shall result from global warming. “it is against this broader background that the relationship between the right to adequate food and the right of everyone to enjoy the benefits of scientific progress and its applications, as guaranteed by the universal declaration of human rights and the international covenant on economic, social and cultural rights, should be assessed. there is a natural tendency to think of these rights as mutually supportive and, in particular, to see scientific progress —and the right of farmers to enjoy the benefits of its applications— as a condition of food security (de schutter, 2011)”. 4. the challenges the human right to food has many challenges, some of them can be the following: 1. the food and agriculture organization (fao) recognizes that the situation is going worse for food security and food sovereignty (fao, 2017). there is clearly a situation of violation of human rights of millions of people. this is one of the most urgent challenges for humanity. if we consider the right to food as a human right, all states have obligations which an individual person or group of them can enforce. there are some tribunal resolutions related to the human right to food, mainly at developing countries (golay, 2009). in this sense, there's still a long way to go. it has been studied deeply the potential of social rights in the european court of human rights (carmona cuenca, 2017). 2. we must be realistic about human rights. global ethics must be a better strategy than only law. there is a clear need of reinforcing the culture of human rights, not only the law perspective. both are necessary. in fact, human rights issues dominate the ethical agenda at the national and international level. an example on how to understand the global ethics of the right to food is the creation of national and international observatories of the right to food7, a fao initiative which is giving good results. 7 oda-alc and oda-e, the latin american and spanish observatory of the right to food. vid. https:// derechoalimentacion.org/ and http://www.oda-alc.org/ celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 157 there have been a proposal to create a legally binding convention on the eradication of hunger and malnutrition (martín, m.a and vivero, j.l (2011). “this could enable seriously committed governments to translate their existing “soft” global commitments into “hard” time-bound national commitments (for which they would be held accountable), that would be reflected in their national legislation, policies, plans and budget; link the commitments of developing country parties to embark on defined comprehensive long-term programmes to end hunger and malnutrition no later than 2025 with commitments by donor country parties to assist in funding their programmes and in providing technical cooperation services in a predictable manner over a long term; provide a framework for south-south cooperation between developing countries for sharing experience, providing reciprocal assistance and assessing each other’s plans and programmes; oblige signatory countries to avoid actions which could damage the efforts of other participating countries towards the eradication of hunger and malnutrition, and put in place procedures for handling disputes; offer a forum within which ratifying countries could agree on mutually acceptable strategies to be adopted in international negotiations that have a potentially significant effect on the incidence of hunger and malnutrition, especially those related to food trading, regulation of extreme instances of market speculation and monopolistic behaviour, non-conversion of prime farm land to nonagricultural use, safe global food stock levels, population, small-scale farming oriented agricultural research and the sustainability of natural resource use; support the creation and implementation at national and global levels of real-time systems for monitoring delivery on commitments51 and progress towards the goal adopted by the convention; recognize and reward institutions for outstanding contributions towards achieving the goal, and bring the failure by any state party to honor its commitments to the attention of the conference of the parties, and put in place procedures requiring them to remedy the situation”. from our realistic approach to human rights, this proposal could not be supported. new international treaties are not a good way of achieving enforceability of the right to subsistence. 3. there is a challenge related with accountability, which is very important. with limited enforceability, that’s difficult to get. more accountability can be achieved not only through courts, but through the united nations mechanisms, such as the universal periodic review and optional protocol to the economic, social and cultural rights. another enforceability system are the national human rights institutions (fernándezaller, 2014), which have been traditionally focused in civil and political rights. 4. the role of non state actors must be reconsidered: a state based approach is not effective in the era of globalization, obviously. the power and influence of mnc is higher than most states, and so is the possibility to impact in human rights. non state actors have obligations to prevent and redress corporate-related human rights violations under the european convention for the protection of human rights and any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 158 fundamental freedoms. we must consider that the evolving jurisprudence of the european court of human rights allows the application of international human rights obligations to non-state actors (the public-private divide) and the jurisdictional scope of international human rights treaties (the territoriality-extraterritoriality). the case law of the european court of human rights (ecthr) defines two categories of state obligations: negative obligations to respect human rights in relation to corporations acting as state agents; and positive obligations to protect human rights in relation to corporations acting as third parties. there is a growing body of case law on the extraterritorial dimension of the human right to remedy, which remains a pressing concern in the business and human rights domain (augenstein & lukasz dziedzic, 2017). the existing human rights legal framework is not a good tool to deal with violations committed by non state actors, such as transnational corporations (tncs), and multi-state actors, such as international financial institutions. international law is in need of rethinking under globalization, and the right to food can help (narula, s., 2006, 2013). a very good example of how non state actors are liable and responsible in relation with the right to food is the case of intellectual property rights and companies: “in exercising and enforcing their intellectual property rights, agricultural companies should not disrespect the right to food by making it difficult for farmers to gain access to the means of food production. what this means in concrete terms is that agricultural companies should not engage in activities that negatively impact the non-commercial farmers’ seed system such as the aggressive marketing of gmo seeds with the goal of stifling the existence of the farmers’ seed system in a country. in addition, in situations where farmers are dependent on patented seeds, agricultural companies that own these patented seeds should not sell these seeds at exorbitant prices nor should they prevent farmers from saving and exchanging seeds” (oke, 2020). 5. economic, social and cultural rights are difficult to deliver, the extent or content is not agreed and it is difficult to enforce them. we need to create social and political conditions that help these rights respected, protected and fulfilled. a very important task for law professionals would be to foster the inclusion of these rights at the domestic level (both at the constitutions, and at the domestic legislation). the proposal of a world court of human rights is not considered a realistic one, because it wouldn´t be enforceable until the states should decide to. while human rights may be justiciable internationally, this does not make them effectively enforceable for two main reasons: international human rights courts tend to be highly selective in the cases they hear and states can usually negotiate with each other what compliance with their judgments means or simply ignore them with little or no adverse consequence. the best prospects for any human right are to institutionalize it in the political and civic culture of national liberal democracies and in their constitutional systems where the judgments of independent, rights-minded, professional and accessible courts are respected by other public institutions, and where a genuinely free press and other civil society institutions can bring alleged violations to public attention. celia fernández-aller the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 159 but socio-economic rights tend to be only 'partially justiciable' at best because their fulfilment depends upon the distribution of public resources which is inescapably political. however, the right to food is probably more justiciable than, for example, the right to adequate health care or education, since it's so fundamental to life and because there is less scope for what counts as effective realization. among the socio-political enforceability to achieve the right to food, there are two very powerful issues: milan urban food policy pact8 and the basic income (valledor, 2013). we can only highlight the importance now, and let more deepening for future contributions. the milan urban food policy pact (mufpp) was announced in february 2014 at the c40 summit in johannesburg, where the mayor of milan launched the proposal for a pact to be signed during the forthcoming expo 2015. the milan urban food policy pact was signed on the 15 october 2015 in milan by more than 100 cities and presented the day after to the un secretary general ban ki-moon on the occasion of the world food day celebration. some of the recommendation actions are related to governance, sustainable diets and nutrition, social and economic equity, food production, food supply and distribution and food waste. concerning food supply, the text recognizes: “review public procurement and trade policy aimed at facilitating food supply from short chains linking cities to secure a supply of healthy food, while also facilitating job access, fair production conditions and sustainable production for the most vulnerable producers and consumers, thereby using the potential of public procurement to help realize the right to food for all.” finally, we must consider that this proposal of striving the socio-political enforceability needs background political conditions: courts operate on a model of common law it is not likely to change radically; there are reasonably independent courts that are not party political; the legislature is elected by universal franchise; there are substantial non-judicial or specialized adjudicative accountability mechanisms (tribunals, ombudsmen, etc); there is a good-faith political commitment to protecting social rights, a reasonably good welfare state; disproportionate political and economical power is not held by wealthy groups (major enterprises); there is a reasonably independent, professional, well functioning non corruptive civil service (king, 2012). 5. conclusions a deep reflection on the compliance and respect of the right to subsistence in general, and the right to food in particular, gives us a pessimistic result. although these rights have solid philosophical foundations, there is still a long road to go in relation with 8 http://www.milanurbanfoodpolicypact.org/ any chance for the enforceability of the human right to subsistence? the age of human rights journal, 15 (december 2020) pp. 140-162 issn: 2340-9592 doi: 10.17561/tahrj.v15.5823 160 the enforceability of them. the international law of human rights establish clearly the content of the right to food, and the procedure for the legal enforceability. but the big violation of the right to food around the world and the difficulties to reach the sustainable development goal number 2 show that there are many challenges when it comes to enforceability, especially the socio-political one. the text has made a summary of some of the most promising areas of socio-political enforceability: the united nations procedures, the public policies such as the milan urban food policy 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(*) (2016) the right to food in international law with case studies from the netherlands and belgium. springer international publishing switzerland. g. steier, k.k. patel (eds.), in international food law and policy, doi 10.1007/978-3-319-07542-6_4 wesson, m.(2012) “enforcing human rights incrementally: review of jeff king, judging social rights” (cambridge university press, 2012) university of western sydney law review volume 16. zambrano, v.(2019) the right to food: an emerging human rights jurisprudence. revista general de derecho público comparado 25 ziegler j., golay c., mahon c., way sa. (2011) the definition of the right to food in international law. in: the fight for the right to food. international relations and development series. palgrave macmillan, london. https://doi .org/10.1057/9780230299337_2. received: july 3rd 2020 accepted: september 2nd 2020 articles celia fernández-aller any chance for the enforceability of the human right to subsistence? 1. the context of social rights 2. a new social right? 3. legal foundations of the right to subsistence: the case of the right to food 3.1 the content of the right to food 3.2 enforceability 3.3 entitlements and duties 3.4 links between the right to food and other human rights 4. the challenges 5. conclusions bibliography collection and use of information by counter-intelligence in the context of human rights protection: case of ukraine the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 445 collection and use of information by counter-intelligence in the context of human rights protection: case of ukraine antonina dimich1 valentyn petrov2 ivan sliusarchuk1 nataliia mishchyshyn1 valentyna fornolyak1 abstract: obtaining complete and reliable information during counter-intelligence activities is critical. the information extraction, analytical processing, and use of information regarding signs and facts of intelligence, terroristic, and other activities of special services of foreign states, as well as organisations, individual groups, and individuals to the detriment of the state security of ukraine is legally established as its main task. one of the main tasks of intelligence and counter-intelligence is to collect information in the interests of national security on the facts and signs of activities that threaten the sovereignty, territorial integrity, and constitutional order of the state, that is, its main system-forming component, using all possible sources. the purpose of such information collection is to assist the executive branch of government in developing internal and external policy, as well as to develop strategic and tactical decisions in the implementation of national policy. the purpose of this study is to identify the problems of collecting and using information by counter-intelligence, to develop a strategy to overcome such problems, and to investigate the legal principles of protecting human rights in the process of this activity. the results of the study will contribute to the development of the theory of national security. the obtained definition of the legal regime for collecting and using information about an individual or legal entity regarding which counter-intelligence actions are performed will assist intelligence and counter-intelligence units in ensuring the protection of human rights. keywords: counter-intelligence activities, human rights, freedoms, national security, ukraine. summary: 1. introduction. 2. materials and methods. 3. results. 4. discussion. 5. conclusions. 1. introduction the current stage of development of ukrainian society is described by a difficult political and economic situation, which is also negatively affected by russian aggression in the east of ukraine. in the context of the emergence of fundamentally new threats to the national security of ukraine, affecting the nature and specific features of the security environment, it is necessary to develop new relations between individual citizens, society, and the state. with this in mind, human rights and freedoms are given increased attention 1 national academy of the security service of ukraine, ukraine (a-dimich@uohk.com.cn; sliusarchuk@ toronto-uni.com; nat-mishchyshyn@lund-univer.eu; v-fornolyak@lund-univer.eu). 2 support service, main situation center of the office of the rada of national security and defense council of ukraine, ukraine (vpetrov@toronto-uni.com). mailto:a-dimich@uohk.com.cn mailto:sliusarchuk@toronto-uni.com mailto:sliusarchuk@toronto-uni.com mailto:nat-mishchyshyn@lund-univer.eu mailto:v-fornolyak@lund-univer.eu mailto:vpetrov@toronto-uni.com collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 446 by rule-making, law enforcement, and other practices due to the need to coordinate the law-guaranteeing functions of state institutions with constitutional functions, as well as international standards in human rights protection. the problems of guaranteeing human rights in those areas that are conventionally at the intersection of public order and national security, on the one hand, and individual human rights and freedoms, on the other hand, are becoming increasingly urgent. counter-intelligence in this context constitutes a special type of activity of authorised state bodies and divisions in state security, contributing to the stable and progressive development of society, deterring external and internal threats to the security of ukraine, stopping intelligence, terroristic, and other illegal actions of foreign special services, individual organisations, groups and individuals regarding the system-forming essence of the state, namely sovereignty, territorial integrity, constitutional order, etc. (law of ukraine…, 2003a; prunckun, 2019; albul et al., 2020). considering the specific features of the purpose and objectives of counter-intelligence operations, the provisions of the current internal legislation of ukraine make provision for the right of authorised units, solely for prevention, timely detection and suppression of intelligence, terroristic, and other attacks on the national security of ukraine, procurement of information in the interests of counter-intelligence, to carry out appropriate measures authorised by supervisory authorities, including using secret methods of obtaining information (law of ukraine no. 12…, 2003a), which temporarily restrict human rights and freedoms guaranteed by the constitution of ukraine. thus, there is a need for a thorough analysis of the legal basis for restricting the human right to privacy during counter-intelligence operations (stouder and gallagher, 2013; ronn, 2016; shaffer, 2017). the study of these issues is not only of scientific significance, contributing to the development and elaboration of the theory of national security, but also of practical one, which lies in the need to develop a unified procedure for covert procurement of information on individuals and legal entities by counter-intelligence units of authorised state bodies. the concept and content of human rights, the grounds and procedure for their restriction by authorised state bodies have been the subject of scientific research by many scientists and practitioners, namely tertishnik (2002), shapirko (2015), albul, andrusenko, mukoida and nozdrin (2020), tkachuk (2018), ukhanova (2018), dzyoban and zhdanenko (2020), and others. despite the thoroughness of research, the modern research area does not contain unanimity of opinions on important issues of understanding the theoretical and legal nature of interference in private life in the interests of counterintelligence, including the justification for the need to gather, store, and use information during counter-intelligence operations, the establishment of a special procedure for obtaining permission to conduct activities that temporarily restrict human rights and freedoms. the purpose of this study was to investigate the legal basis of interference in human privacy upon gathering and using information by counter-intelligence, to identify current problems in this area and develop proposals for their solution. antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 447 2. materials and methods threats to human rights and freedoms that arise during the collection of information by intelligence agencies in the interests of national security have been thoroughly investigated by marina caparini (2008). this researcher claimed that there is a certain paradox in the desire for transparency in the activities of an internally closed body, which is the intelligence and special services of any state. t. christakis and k. bouslimani (2021) point out the necessity to keep a balance between restrictive measures in case of threats to national security and violating human rights and fundamental freedoms. however, the preservation of democratic values, especially in transition countries such as ukraine, requires specially authorised bodies to be accountable and monitored by both the legislative and judicial branches of government, as well as by civil society and the media. the study by hans born and aidan wills notes that the means used by intelligence agencies to collect information must correspond to the priorities and values of the society they serve. in democratic countries, intelligence agencies must respect human rights and freedoms, recognise the rule of law and adhere to the principles of democratic governance, including in terms of responsibility and accountability, transparency and collegiality in decision-making. intelligence activities at all its stages, from problem setting to information dissemination, should be performed within these parameters (born and wills, 2016). in this regard, ronnie kasrils, in her report on the investigation of abuses by security officials in south africa, notes that ‟restrictions on rights can be justified if there is a threat to national security. such a restriction must meet the proportionality test, which corresponds, among other things, to such categories as the nature of a particular right and the importance of the purpose for which this right is restricted. as such, the possibilities of obtaining intelligence information must be balanced by guarantees of protecting the human rights of citizens and supporting an open democratic society” (kasrils, 2008). therewith, the storage of information (including personal information) on actions and measures against individuals is fully justified, on the one hand, by the involvement of these individuals in illegal actions in the sphere of national security, economic wellbeing and the protection of human rights. on the other hand, to verify the trustworthiness of persons applying for any of the official positions and in other cases stipulated by law (law of ukraine…, 1994; law of ukraine…, 2003b; law of ukraine…, 2010). hans born and ian leigh (2005) determine that the danger of procuring, storing, and using a dossier (information about a person) is that during a counter-intelligence operation there is: a) the possibility of collecting redundant information – the data is collected without a specific purpose, in case of possible benefit in the future; b) the possibility of obtaining false information: faulty, unjustified, or misleading; c) the possibility of disclosure without appropriate permission: to third parties or without a reasonable purpose; d) the opportunities and careers of individuals can be put at serious risk with no chance of preventing it. collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 448 according to the law of ukraine “on counter-intelligence operations” (law of ukraine..., 2003a) the grounds for counter-intelligence activities are as follows: 1. availability of sufficient information that needs to be verified using special forms, methods, and means on the following: z intelligence activities against ukraine, engaged in by special services of foreign states, as well as organisations, individual groups, and individuals; z encroachment on the state sovereignty, constitutional order, and territorial integrity of ukraine; z terroristic attacks or terrorist activities, criminal offences against the peace, security of humankind and the international legal order. 2. performance of tasks defined by law regarding the following: z counter-intelligence support of economic, information, technological potential, military-industrial and transport complexes and their facilities, the national communication system, the armed forces of ukraine, and other military formations created in accordance with the laws of ukraine, military-technical cooperation, compliance with international non-proliferation regimes; z counter-intelligence support of foreign diplomatic institutions of ukraine, the security of employees of these institutions and their family members in the host state, citizens of ukraine sent abroad who are aware of information constituting a state secret, as well as the protection of state secrets in these institutions; z counter-intelligence protection of state authorities, law enforcement and intelligence agencies, protection of state secrets; z protection of embassies and representative offices of foreign states in ukraine and their employees from terrorist attacks; z study and verification of persons who are registered for access to state secrets, to work with nuclear materials and at nuclear installations, or involved in confidential cooperation; z ensuring own security, including employees of bodies and divisions engaged in counter-intelligence activities, their family members and persons who facilitate and assist in the implementation of counter-intelligence activities; z information and analytical support of state authorities (regarding threats to the state security of ukraine). 3. the need to utilise technical means to identify and stop the operation of radio-electronic and other devices, the operation of which poses threats to the state security of ukraine or prerequisites for the leakage of information with restricted access, as well as radio emissions of radio-electronic means used for illegal purposes. 3. results the conducted formal and legal analysis of international regulations has shown that human rights and freedoms to privacy, including protection from unjustified gathering antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 449 and dissemination of personal data, are defined as basic human rights. being consolidated at the general and regional levels, they underlie the basic principles of the rule of law. thus, article 12 of the universal declaration of human rights (1948) states that no one may be subjected to unjustified interference in their personal and family life, groundless encroachment on the integrity of their home, the secrecy of correspondence, or honour and dignity. everyone has the right to be protected by the law from such interference or encroachment (universal declaration of human rights, 1948). subsequently, these provisions were developed in such international documents as the european convention for the protection of human rights and fundamental freedoms (1950), international covenant on civil and political rights (1966), american convention on human rights (1969), charter of fundamental rights of the european union (2000), etc. the fundamental human rights law thus provides the basis for protecting privacy, including the collection and dissemination of information about a person, against the illegal storage of such data. therewith, the convention for the protection of human rights and fundamental freedoms, ratified by the verkhovna rada of ukraine (1997), defines the possibility of interference with a person's private life solely in accordance with the procedure established by law, in cases necessary for a democratic society, in the interests of national and public security or the economic well-being of the country, for preventing disorder and crime; for the protection of health or morals, or for the protection of the rights and freedoms of others (law of ukraine..., 1997). in ukrainian legislation, guarantees of human rights and freedoms are declared in section ii of the constitution of ukraine. the human right to privacy is ensured by articles 29-32 of this document. article 32 states that the collection, storage, use, and dissemination of confidential information about a person is not allowed without their consent. however, an exception is made to this right in cases defined by law and only in the interests of national security, economic well-being, and respect for human rights. thus, the legislation emphasises that ensuring national security is a sufficient reason for restricting human rights and freedoms (constitution of ukraine, 1996). collecting information about threats to national security can directly relate to fundamental human rights. ministerial commission for the supervision of the intelligence services of south africa was responsible for investigating the official crimes of employees of the national intelligence agency. according to a 2008 report by the ministerial commission, ‟intrusive (covert, non-public, secret) investigative measures can play a crucial role in uncovering criminal activities and uprisings, but they can be used to undermine democratic processes, obstruct legitimate political and public activities, and artificially create more favourable conditions for individual politicians and political parties” (kasrils, 2008). in this aspect, it should be established what meaning the legislation attaches to the term ‟national security”. thus, according to the law of ukraine ‟on national security”, national security of ukraine is the protection of state sovereignty, territorial integrity, democratic constitutional order, and other national interests of ukraine from real and potential threats. at the same time, the national interests of ukraine are interpreted as the vital interests of a person, society, and the state, the implementation of which ensures the state sovereignty of ukraine, its progressive democratic development, as well as safe living conditions and the well-being of its citizens (law of ukraine..., 2003b). collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 450 given the above, there is a risk of unjustified expansion of the powers of special services and intelligence agencies to gather, store, use, and disseminate information about an individual or legal entity, as noted by a number of scientists (rizak, 2011). after all, the concepts of ‟national security” and ‟national interests” include a fairly wide range of issues. mr ronnie kasrils identifies the following threats during secret information gathering activities in his report: z the object of intelligence activity may never know that intrusive measures were taken against it and, accordingly, will be incapable of challenging their legality and expediency in court; z intrusive measures are applied in an environment of strict secrecy, which does not allow supervisory authorities to effectively monitor their use and identify cases of arbitrariness and abuse of power; z the means of collecting information may violate a person's privacy rights to a greater extent than the specific circumstances of the investigation require; z intelligence agencies accumulate and store confidential information about the object of investigation and persons in contact with it after the investigation period has come to an end, and sometimes use this information for other purposes; z secret means of collecting information generally violate not only the rights of the person under investigation, but also their associates, even if these persons are not the objects of the investigation. these risks and threats have led to the establishment of international standards for the storage of personal information, such as the council of europe convention “on protection of individuals with regard to automatic processing of personal data”. this regulation is aimed at ‟ensuring respect for the rights and fundamental freedoms of each person, in particular, the right to maintain confidentiality in connection with the automatic processing of personal information relevant to this person (convention for the protection of individuals..., 1981). the implementation of the global principles on national security and the right to information at the level of national legislation (the global principles on national security and the right to information (the tshwane principles), 2013) allows striking a balance between the need to keep confidential the activities of certain institutions, including special services, and the right of the public to know about such activities. among these principles, the main ones are as follows: z information should be kept confidential only if its disclosure entails real and certain risks of substantial damaging the legitimate interests of national security (principle 3); z information about serious violations of international human rights and humanitarian law should be disclosed in all cases (principle 10a); z the public should have access to information about surveillance programmes (principle 10e); no official should be categorically exempt from disclosure requirements (principle 5); antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 451 z public officials acting in the public interest by exposing government abuses should be protected from retaliation (principle 40) (2013). in their recommendations on the implementation of international human rights standards in the legal field of ukraine (born and wills, 2016), (born and leigh, 2005), the researchers warn against excessive expansion of the powers of intelligence services. thus, they suggest the following steps in this area: z any special powers of security and intelligence agencies should be clearly stipulated in the country's legislation; z the law on special powers should be clear and comprehensive, so that the special services are not tempted to resort to those measures that are underregulated at the legislative level; z inclusion of the principle of expediency of using such special powers in the legislation; z the actions of security and intelligence agencies should be properly supervised and monitored; z all actions of special services should be based on respect for human rights and respect for the rule of law (born and leigh, 2005). at present, these researchers, based on the case law of the european court of human rights, have identified the following markers that can be used to verify ‟compliance with the law” of special powers of intelligence and counter-intelligence agencies: 1. laws are understood as common law legislation and sub-legislation. for the provision to be qualified as a law, it must be adequately formulated to enable citizens to regulate their behaviour. 2. a law providing for the use of unlimited discretion in an individual case cannot be considered foreseeable, and such a provision cannot be considered a law. the scope of authority should be clearly defined. 3. it is necessary to establish all possible guarantees to avoid abuse of powers by the special services regarding fundamental human rights and freedoms. the legislation must define the guarantees for preventing abuse of authority established. 4. if the relevant safeguards are not prescribed in the relevant law, it should at least contain conditions and procedures for oversight by other institutions (born and leigh, 2005). the conducted comparative analysis of ukrainian and international regulations demonstrated that most of the provisions of international law are implemented in ukrainian legislation, and the main guarantees of human rights and freedoms in the collection and storage of personal data (dossiers) during counter-intelligence operations are declared in legislative acts. thus, to protect personal data, the law of ukraine “on personal data protection” (2010) was adopted on 01.06.2010, which establishes the basic methods of personal data protection and contains the terminological aspect of special terms for regulating the range of public relations in this area of law. article 1 of this collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 452 document states that it is aimed at protecting fundamental human and civil rights and freedoms, in particular the right to non-interference in personal life, in connection with the processing of personal data. this law also applies to the processing of personal data, which is performed in whole or in part with the use of automated means, as well as to the processing of personal data contained in the file cabinet or intended to be entered in the file cabinet, using non-automated means. the same regulation also declares that: z personal data is processed for specific and legitimate purposes determined with the consent of the personal data subject, or in cases prescribed by the laws of ukraine, in accordance with the procedure established by law; z processing data about an individual, which is confidential information, is prohibited without prior individual's consent, except in cases prescribed by law, and only in the interests of national security, economic well-being, and human rights; z personal data is processed in a form that allows identifying the individual whom it concerns for no longer than is necessary for the legitimate purposes for the collection or further processing (law of ukraine no. 34 “on personal data protection”, 2010). at present, it is quite obvious that this law follows the council of europe convention of 1981 and introduces the provisions of international law into the ukrainian legal field. that is, there are sufficient grounds for collecting and storing data on a person (dossier) during counter-intelligence activities in ukraine, and the basic provisions of international law on the protection of human rights and freedoms during such activities are recognised. formal legal analysis and comparative legal method of research allowed establishing that ukrainian legislation defines the main task of counter-intelligence and intelligence activities as the extraction, analytical processing, and use of information containing signs or facts of intelligence, terroristic, and other activities of special services of foreign states, as well as organisations, individual groups and persons to the detriment of the national security of ukraine. information on the grounds for counter-intelligence operations may be contained in the following: z statements and messages of citizens, persons involved in confidential cooperation, officers and officials, public organisations, media; z the materials of pre-trial investigation and court bodies; z requests, information and materials of special services and law enforcement agencies of foreign states, international institutions and organisations; z materials of law enforcement agencies and other state authorities of ukraine regarding threats to the state security of ukraine, materials of the security service of ukraine regarding the organisation, implementation, forms, and methods of terroristic, intelligence, and other activities to the detriment of the state security of ukraine; z requests of authorised state bodies, institutions, and organisations defined by the cabinet of ministers of ukraine regarding access to state secrets and work with nuclear materials and on nuclear installations. antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 453 therewith, according to article 7 of this law, specially authorised units are granted the right to public and covert identification, recording, and documenting intelligence, terroristic, and other encroachments on the state security of ukraine, to maintain the corresponding criminal records, and the law of ukraine ‟on the security service of ukraine” (law of ukraine..., 1992b) grants state security bodies the right to create information systems and maintain criminal records in the interests of counter-intelligence and intelligence activities within the scope and in accordance to the procedure determined by the tasks assigned to the security service of ukraine pursuant to legislation. having analysed the legislation of ukraine, the authors of this study concluded that despite the rather widespread use of the term ‟criminal records” in the laws of ukraine ‟on the security service of ukraine” (law of ukraine..., 1992b), ‟on counter-intelligence operations” (law of ukraine..., 2003a), there is no regulatory consolidation of this term. the authors of this study believe that “criminal records” in counter-intelligence should be interpreted as “the process of identifying, registering, accumulating, summarising, storing, and transmitting information concerning the facts and signs of intelligence and subversive activities of foreign special services, encroachments by individual organisations, groups, and individuals to the detriment of state sovereignty, constitutional order, territorial integrity, economic, scientific, technical, and defence potential of ukraine, the legitimate interests of the state and the rights of citizens, as well as to ensure the protection of state secrets”. it was established that upon collecting and accumulating information, special services and intelligence agencies form dossiers on individuals and legal entities that can be processed in automated systems (law of ukraine..., 1992b). under the automated system, the law of ukraine “on information protection in information and telecommunications systems” (law of ukraine..., 1994) defines that an information (automated) system is an organisational and technical system where information processing technology is implemented through technical and software tools. in international law, the council of europe convention “on protection of individuals with regard to automatic processing of personal data” (1981) provides that personal data subjected to automated processing must be: z received and processed in good faith and legally; z stored for specific and legitimate purposes and not used in a way that is incompatible with these purposes; z adequate, appropriate, and non-excessive relating to the purposes for which they are stored; z accurate and updated if necessary; z stored in a form that allows identifying the data subjects for no longer than is necessary for storing such data (article 5). according to article 7 of the same document, for the protection of personal data, appropriate security measures are taken to prevent accidental or unauthorised destruction or accidental loss, as well as to prevent unauthorised access, modification, or distribution. collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 454 article 8 of this convention makes provision for the right to grant any person the opportunity to: z inquire about the existence of a personal data file for automated processing, its main purposes, as well as the identity and permanent place of residence or the main place of work of the file controller; z receive, after reasonable periods and without excessive delay or cost, confirmation or refutation of the fact of storing personal data concerning this person in a data file for automated processing, as well as receive such data in an accessible form; z require, where appropriate, the correction or destruction of such data if it was processed contrary to the provisions of internal legislation that enact fundamental principles of respect for human rights; z use remedies in case of failure to comply with the request for confirmation or, where appropriate, to provide, correct, or destroy personal data. the convention also provides that the restriction of human rights and freedoms in a democratic society is a necessary measure in the following cases: protection of state and public security, financial interests of the state or the fight against criminal offences; and protection of the data subject or the rights and freedoms of others. it is quite evident that ukrainian legislation makes provision for a somewhat wider scope of issues allowing for restrictions on human rights and freedoms upon of processing their personal data in the interests of national security. furthermore, the law “on counter-intelligence operations” (law of ukraine..., 2003a) does not make provision for sufficient conditions for entering and storing personal data in criminal records, and the law of ukraine “on the security service of ukraine” (law of ukraine..., 1992b) and criminal procedural code of ukraine (law of ukraine..., 2013) do not provide for such conditions. in addition, ukrainian legislation does not set time-limits for storing information regarding an individual or legal entity in information systems or criminal records of special services. only the criminal procedural code of ukraine makes provision that materials of criminal proceedings obtained as a result of covert intelligence operations which the prosecutor does not consider necessary for further pre-trial investigation should be immediately destroyed based on this prosecutor's decision. furthermore, there is a ban on the use of such materials for purposes not related to criminal proceedings (criminal procedural code of ukraine, 2013). and, while chapter 21 of the criminal procedural code of ukraine requires to notify the object of covert intelligence operations to conduct such activities, there is no provision for the notice of a person regarding the collection and accumulation of personal data by special services and intelligence agencies. the academia has come across a new task, to strike a balance between the requirements of a democratic society for the protection of fundamental human rights and freedoms and ensuring national security. antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 455 4. discussion the issue of the legality of collecting and accumulating information about individuals and legal entities by special services and intelligence agencies is debatable. thus, m. rizak (2011) highlights in his developments the following legitimate conditions for restricting human rights upon processing information regarding a person in question in databases: 1. restrictions are imposed based on the law. 2. restrictions are necessary in a democratic society. 3. restrictions must pursue one of the following goals: z ensuring national security, including ensuring defence capability and public order in the state; z ensuring economic security, if it is required by an important economic or financial interest of the state (including in the field of monetary, budgetary, and tax policy); z ensuring the protection of the data subject or the rights and freedoms of others, including for detection, prevention, and investigation of crimes; z implementation of scientific research or creation of statistics, provided that there is clearly no risk of violation of the privacy of data subjects and restriction of access to this data for a period of time not exceeding the period necessary for the implementation of such a goal, ensuring the right of the data subject to establish the existence of such a personal data file for automated processing, to learn about its main purposes, as well as to know about the person and permanent place of residence or the main place of work of the file controller (rizak, 2011). the authors of this study agree with the opinion of this researcher that the legislation of ukraine should make provision for a clearer definition of sufficient conditions for restricting human rights and freedoms upon processing information about a person in question in information systems, including special and intelligence agencies. the legitimacy of the conditions of such restriction would ensure respect for human rights and freedoms during counter-intelligence operations. the democratic values based on which ukraine builds its state system make provision for the proportionality of certain restrictions on human rights and freedoms to the challenges and threats that special authorised bodies counteract. it is to solve this problem that the studies of ukrainian researchers should be aimed at. article 9 of the law of ukraine “on counter-intelligence operations” (law of ukraine..., 2003a) contains a direct prohibition on publishing or providing (disclosing) the collected information, as well as information on conducting or not conducting counter-intelligence activities and measures relating to a certain person until a decision is made on the results of such activities or measures. in addition, researchers are debating on the definition of what should be considered as information about an individual. according to article 11 of the law of ukraine “on information”, information about an individual is information about an individual who is collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 456 identified or can be specifically identified (law of ukraine..., 1992c). t.i. obukhovska defined basic data about a person (personal data) as follows: nationality, education, marital status, religion, health status, as well as address, date, and place of birth. sources of documented information about a person are documents issued in his or her name, documents signed by them, as well as information about the person collected by state authorities and local self-government bodies within the limits of their powers (obukhovska, 2014). m. rizak (2011) believes that information about a person (personal data) constitutes a type of information that emphasises the individuality of each person, and also contains universal biological and social properties of an individual, and the defining feature of personal data is the ability to use this data to identify a particular person. thus, the emergence of human rights in the field of processing information about a person in databases is inextricably linked with the moment when a sufficient array of information about an individual is accumulated in a particular database to identify them. the authors of this study believe that a definition more appropriate to international standards is the one provided in the law of ukraine “on personal data protection” (2010), personal data information or a set of data about an individual who is identified or can be correctly identified. as previously noted in this study, respect for fundamental human rights and freedoms is a democratic value that the state protects. information about a particular person accumulated in information systems and databases is the property of a particular person and all actions relating to such data must be performed exclusively with this person's consent, except in cases stipulated by law. nevertheless, the legislative discourse continues to discuss the sufficiency of information that is subject to legal protection. part 2, article 14 of the criminal procedural code of ukraine (2013) refers to personal data as “private life of citizens, secrecy of correspondence, telephone conversations, and telegraph messages.” and according to article 9 of the law of ukraine “on law enforcement intelligence operations” (law of ukraine..., 1992a), as well as article 11 of the law of ukraine “on counter-intelligence operations” (law of ukraine..., 2003a), under the protection of the law fall not just information about the personal life, but also information concerning the person's honour and dignity. but no regulation defines exactly which set of information concerns honour and dignity. another controversial issue is the notice of the commissioner for human rights of the verkhovna rada of ukraine on the commencement of processing information about an individual or legal entity. thus, article 9 of the law of ukraine “on personal data protection” (law of ukraine..., 2010) defines the obligation of the owner of personal data to notify the commissioner on the processing of personal data, which poses a particular risk to the rights and freedoms of personal data subjects, within thirty working days from the date of the commencement of such processing. the commissioner for human rights identifies the types of personal data processing that pose a particular risk to the rights and freedoms of personal data subjects, as well as the categories of subjects to whom the notification requirement applies. the procedure for notifying the commissioner for human rights of the verkhovna rada of ukraine on the processing of personal data, which poses a particular threat to the rights and freedoms of personal data subjects, on a structural division or responsible antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 457 person organising work relating to the protection of personal data during their processing, as well as the disclosure of this information, approved by the order of the commissioner no. 1/02-14 of 08.01.2014, defines among such data the personal data regarding the following: z bringing to administrative or criminal responsibility; z application of pre-trial investigation measures against a person; z taking measures against a person stipulated by the legislation of the law of ukraine ‟on law enforcement intelligence operations”; z location and/or ways of movement of the person. this information can be accumulated in the information systems of special and intelligence services, but the legislation does not make provision for a mechanism for such notice, and given that information on conducting counter-intelligence operations can be provided only after a decision is made on its results (which may exceed the time limit established by law), in practice compliance with such a provision is problematic. shapirko investigated the mechanism for obtaining permission to gather personal data about a person upon intelligence operations. the basis for such a gathering is the court's permission to hold such an event, and the prosecutor's office and the court are responsible for overseeing compliance with the rule of law. quite rightly, the researcher notes that ‟the results of intelligence operations that, in accordance with the legislation of ukraine, constitute a state secret, as well as information concerning the personal life, honour, and dignity of a person, are not subject to transfer and disclosure” (shapirko, 2015). in this case, it is logical to obtain court permission to collect information about a person from open sources, without conducting cover intelligence operations because the criminal procedural code makes provision for obtaining a court order only in case of covert intelligence operations. both the law of ukraine ‟on counter-intelligence operations” and the law of ukraine ‟on law enforcement intelligence operations” (law of ukraine..., 1992a) do not specify sufficient conditions for collecting and accumulating personal data in information systems and criminal records of authorised bodies of national security. given that interference in private life is a relatively new concept in the practice of law enforcement agencies and special services of ukraine, modern ukrainian academia does not have a unified approach to understanding the proportional scope of such interference, which would be considered adequate to the risks and threats to national security that special and intelligence agencies prevent. hans born and ian leigh (2005), in their recommendations for bringing the practice of intelligence services in line with democratic standards, insist on the following: z the legislative mandate should limit the purposes and circumstances under which information is collected and dossiers are opened regarding individuals; z the law should make provision for effective control over the terms of storage of information, its use and rules of access to it, as well as for the compliance of legislation with international standards in this area; z intelligence agencies should not be deprived of the right to freedom of information and access to the dossier; they should be granted access to information in terms of national security and the competence of such a service; collection and use of information by counter-intelligence in the context of human rights protection the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 458 z courts, in accordance with the law, must determine that exceptions to the restriction of human rights are used reasonably, etc. 5. conclusions summarising the above, the authors of this study propose to supplement the law of ukraine ‟on the security service of ukraine” with article 81 with the following: ‟1. the head of the body or division of the security service of ukraine must notify everyone who has made a request about the fact of collecting information about the specified person (if so, specify which ones) as soon as possible (no later than three months in advance), except in cases where this is prohibited by law. the specified official can postpone his or her decision for no more than four weeks, and notify the person who made the request before the end of the first term. 2. if the request is granted, the head of the body or department should provide the person who made the request with access to information about him or her. 3. when executing a request, all necessary measures must be taken to ensure that the person making the request is properly identified”. clause 12) article 25 of the above law should be supplemented with paragraph two to read as follows: “criminal records” in counter-intelligence should be interpreted as “the process of identifying, registering, accumulating, summarising, storing, and transmitting information concerning the facts and signs of intelligence and subversive activities of foreign special services, encroachments by individual organisations, groups, and individuals to the detriment of state sovereignty, constitutional order, territorial integrity, economic, scientific, technical, and defence potential of ukraine, the legitimate interests of the state and the rights of citizens, as well as to ensure the protection of state secrets”. there is also a need to review the procedure for granting permission to gather and process personal data during counter-intelligence operations and bring it in line with international standards. further scientific research in this area is considered appropriate to resolve the issue of developing clear criteria of sufficiency for the accumulation, processing, and storage of information in information systems and criminal records of special authorised counter-intelligence bodies. references albul, sergii, andrusenko, sergii, mukoida, ruslan and nozdrin, dmytro (2020). basics of operational and investigative activities. odesa: odesa state university of internal affairs. american convention on human rights. 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(2013). “crafting operational counterintelligence strategy: a guide for managers”, international journal of intelligence and counterintelligence, 26 (3), pp. 583-596. https://doi.org/10.1080/ 08850607.2013.780560 tertishnik, volodymyr (2002). guarantees of truth and protection of human rights and freedoms in criminal proceedings. dnipro: dnipropetrovsk law academy of the ministry of internal affairs of ukraine. https://zakon.rada.gov.ua/laws/show/80/94-%d0%b2%d1%80#text https://zakon.rada.gov.ua/laws/show/80/94-%d0%b2%d1%80#text https://zakon.rada.gov.ua/laws/show/2297-17#text http://zakon2.rada.gov.ua/laws/show/964-15 http://zakon2.rada.gov.ua/laws/show/964-15 https://zakon.rada.gov.ua/laws/show/475/97-%d0%b2%d1%80 https://zakon.rada.gov.ua/laws/show/475/97-%d0%b2%d1%80 https://zakon.rada.gov.ua/laws/show/2657-12#text https://zakon.rada.gov.ua/laws/show/2657-12#text https://doi.org/10.1080/08850607.2016.1177399 https://doi.org/10.1080/08850607.2017.1263529 https://doi.org/10.1080/08850607.2017.1263529 https://doi.org/10.1080/08850607.2013.780560 https://doi.org/10.1080/08850607.2013.780560 antonina dimich, valentyn petrov, ivan sliusarchuk, nataliia mishchyshyn and valentyna fornolyak the age of human rights journal, 18 (june 2022) pp. 445-461 issn: 2340-9592 doi: 10.17561/tahrj.v18.6779 461 the global principles on national security and the right to information (the tshwane principles). (2013). https://www. justiceinitiative.org/uploads/bd50b729-d427-4fbb-8da2-1943ef2a3423/globalprinciples-national-security-10232013.pdf tkachuk, nataliya (2018). “information rights and freedoms of human and citizen of ukraine: definition of terms, correlation of concepts”, informatsiia i pravo, 2 (25), pp. 17-30. ukhanova, nataliya (2018). “challenges and threats to human rights and security in the information sphere”, informatsiia i pravo, 4 (27), pp. 33-45. universal declaration of human rights. (1948). available at: https:// zakon.rada.gov.ua/laws/main/995_015 received: december, 1st 2021 accepted: march, 15th 2022 https://www.justiceinitiative.org/uploads/bd50b729-d427-4fbb-8da2-1943ef2a3423/global-principles-national-security-10232013.pdf https://www.justiceinitiative.org/uploads/bd50b729-d427-4fbb-8da2-1943ef2a3423/global-principles-national-security-10232013.pdf https://www.justiceinitiative.org/uploads/bd50b729-d427-4fbb-8da2-1943ef2a3423/global-principles-national-security-10232013.pdf https://zakon.rada.gov.ua/laws/main/995_015 https://zakon.rada.gov.ua/laws/main/995_015 collection and use of information by counter-intelligence in the context of human rights protect abstract 1. introduction 2. materials and methods 3. results 4. discussion 5. conclusions references trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 163 trans rights: the ongoing debate in latin american legal agendas* sebastián lópez hidalgo** abstract: this article offers an overview of the trans people's rights agenda in latin america. it focuses on various latin american countries to reveal how the route towards rights has been marked by a binary and medicalizing approach to non-normative identities, directly influenced by the traditional and conservative moral projects prevalent in the region. it also accounts for some recent normative and case-law developments, which however coexist with restrictive norms that criminalize the rights of gender-diverse people. it concludes that the recognition of trans people’s rights is often insufficient, that it contributes to rendering trans diverse realities invisible, thus reinforcing discrimination. keywords: latin america, human rights, gender identity, trans people, legislative agenda. summary: 1. introduction. 2. the latin american context and the rights of transgender people. 3. the recognition of the rights of transgender people and the legislative agenda in argentina, uruguay and chile. 4. the situation in colombia and ecuador. 5. the experience of bolivia and peru. 6. overall conclusions. 1. introduction despite renewed constitutional agreements, many of which fall within the framework of the so-called new latin american constitutionalism (uprimny 2011; viciano and martínez 2010), the rights of transgender1 people are subject to ongoing debates in south american legislative agendas, where their recognition faces considerable opposition. as the pro-rights sector has warned, the assault against them goes hand in hand with demands by more conservative social sectors to introduce statutory and legal reforms, with the aim of reinforcing traditional family and moral values which exclude diversity. this coincides with the erosion of constitutional rights, resulting from strategic litigation seeking to consolidate dominant, majority values. at a legislative level, this reactionary offensive has been accompanied by arguments and deliberative strategies by pro-life groups as well as staunch resistance to the advancement and protection of transgender people's rights. * article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. ** doctor of law from the universidad andina simón bolívar-quito and the university of seville-spain. master’s degree in constitutional law from the universidad andina simón bolívar-quito. currently professor of constitutional law at the universidad del azuay-ecuador and the universidad andina simón bolívar-quito. postdoctoral fellow of the fundación carolina españa (sebaslopezhidalgo@yahoo.com). 1. in this article, trans persons are defined as those whose gender identity is not consistent with the normative expectations and codes associated with the one legally assigned to them at birth. trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 164 the recognition of rights linked to the reality of transgender people has not followed a uniform pattern across latin america. countries such as argentina, uruguay and chile have definitely made a certain amount of progress in adopting overall legislation on gender identity, whereas countries such as ecuador have attempted to regulate a number of specific aspects, without having endorsed more far-reaching reforms. in countries such as colombia, on the other hand, the protection of transgender rights has resulted from constitutional case-law, as well as certain administrative measures, although there is no specific ordinary legislation on the matter. in other countries, reluctance to recognise these rights still prevails. developments in the inter-american system of human rights have led to the establishing of a minimum level of protection. a number of specific cases submitted to the inter-american court of human rights (iacthr), as well as advisory opinions and special reports on the protection of the rights of transgender people, have paved the way to the development of a judicial framework in the different countries subject to the interpretative guidelines of the inter-american system. despite this, at a domestic level, developments have not been uniform. in some countries, significant levels of regulation and legislative recognition have been achieved, but these advances have not always been accompanied by judicial support. an example of this is the case of bolivia, where the constitutional court has taken a step backwards with respect to legislation, the latter being more in accordance with the protection of rights. in general, there have undoubtedly been clear attempts to move from a model involving the stigmatisation and pathologisation of trans people, which is essentially conservative, to one of self-determination and recognition which incorporates broader social debates and reflection. however, these attempts tend to be half-hearted, and are often shown to be deficient and fragmentary, or at best only lead to a formal recognition of rights with few real advances. the result is a great disparity beween regional experiences. based on different national realities, this study of the rights of transgender people in latin america aims to provide an overview of the legislative and judicial commitment to such rights in a range of the subcontinent’s legal systems. at the same time, the experiences described will provide an analytical framework to assess either the evolution or the erosion of rights in different national legislations. to this end, this paper is structured into four parts. the first section provides a brief description of the pathologising approach to the rights of trans people and its conservative roots, whilst also offering a brief overview of a number of latin american constitutional frameworks in which this approach shapes discussions on the issue. the second part examines the argentinean, uruguayan and chilean models, the most progressive examples in the region, all three of which have enacted specific legislation to protect transgender people, despite the fact that their rights are not explicitly recognised in their national constitutions. the third part focuses on the situation in ecuador and colombia, where legislative inertia has led to a situation whereby transgender people have had to rely on constitutional case-law to protect and guarantee their rights. finally, we shall look at bolivia and peru sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 165 as examples of systems which are reluctant to recognise these rights altogether. while bolivia provides an example of judicial regression in this area, the case of peru highlights the strong influence of the international human rights system, which has had a clear effect on the future agenda of discussions about trans people’s rights in the region's different states. the paper concludes with a number of reflections on the progress and limitations of latin american regulatory strategies in this area in the light of current case-law and legal texts, and with some questions on the role of legislators and courts in this field. 2. the latin american context and the rights of transgender people the historic prevalence of a binary conception of gender identity, which conceives it as something objective and indisputable, has consolidated the existence of a system which excludes those who do not adapt to these binary premises and their rigid categories of classification, based on equally rigid (male/female) power relations. in fact, as ruth rubio marín (2020: 47) has pointed out, "the definition of categories is an instrument frequently employed by legislators to determine the legal position of subjects in terms of the different general aims pursued by legislation and public policies", leading to apparently neutral and unquestionable classification and ordered criteria, through which subjects are either included or excluded (butler 2009). in terms of gender identity, discourses which pathologise trans people are allied with a deterministic binary vision, imposed on the basis of what could be called a "medical model", or medical paradigm of classification or registration of people, which marginalises any diverse identity that does not adhere to the strict canons of binary assignment. this apparently neutral (binary) classification is in conflict with the realities of many people’s experiences. in contrast, the exponents of a more positive approach see trans identities from a less restrictive and exclusionary medical viewpoint. they demand instead a shift of understanding and comprehension, leading to the proper recognition of trans people as democratic subjects with all corresponding rights. in the latin american context, this transition from a deterministic, essentialist, medicalised and exclusionary vision to one which strengthens the recognition of rights and subjective diversity has been uneven. many south american constitutional states have not only failed to question, but have actually confirmed the mandatory enforcement of gender regulatory norms as a series of dichotomies and hierarchies which effectively exclude and marginalise many people. in fact, although the more recent latin american "green constitutions" are associated with the protection of the rights of nature and the environment and are committed to pluralism and diversity, whilst giving an active voice to indigenous communities, peoples and nationalities, gender demands as such are largely absent. this is despite the insistence that this new constitutional approach is essentially aimed at including channels of political participation for social sectors historically excluded from the social contract. this is not to say that the region is completely devoid of reforms aimed at offering a minimum of protection for gender-related rights. thanks to the impetus of progressive movements and social awareness programmes, countries such as colombia, argentina, trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 166 costa rica, brazil, mexico, uruguay and ecuador have, for example, formally recognised same-sex marriage. nevertheless, in other countries there is continued resistance and the issue is still under discussion. with regard to gender identity and the rights of transgender people, the debate has essentially focused on the sphere of international human rights, in particular on certain pronouncements by the iacthr in 2018 on gender identity and the protection of same-sex couples (advisory opinion 24/17). at a constitutional and legal level however, a strategy of resistance or backlash is clearly evident,2 with the traditional family order being emphasized in constitutional and legal texts, thereby undermining a more plural recognition of diversity. there are therefore various different approaches to the issue in latin american legislative agendas. in some cases, there is evidence of progress towards a greater commitment to the recognition of certain rights, whereas in others failure to make such a commitment threatens even the most straightforward constitutional guarantees. there are also countries which seem to suffer from legislative "idleness", often accompanied by conservative and regressive judicial practices, which complicate the whole issue of rights altogether. in all of these cases, a combination of factors tend (to a lesser or greater extent) to have a negative impact on the effective recognition of the rights of transgender people in the americas. behind the pathologising of identities that dissent from the modern gender binary, there is an ongoing conservative discourse which generates stigmatisation, subordination and exclusion from official norms. significantly, there is also an underlying common religious element, which is part of latin american countries’ colonial inheritance and which informs the traditional principles and moral values continuing to influence their legislative agendas. it is striking that despite their diverse realities latin american states were founded on ideals of homogeneity (tapia 2019), articulated through laws and public policies that aspired to impose themselves over those realities through the creation of an allencompassing normativity. notwithstanding its long colonial past, latin america has resisted the imposition of a european-style hegemonic social model, yet at a normative level it has paradoxically reproduced europeanised ideals of family and femininity typical of the "coloniality of power" (quijano 2000; mignolo 2011); ideals which, as decolonialist feminist theory points out, reinforce a "coloniality of gender" (lugones 2010). it is only 2. in ecuador, for example, following the constitutional court's rulings recognising equal marriage in the country (ruling 11-18-cn and ruling 10-18-cn), pro-life groups have insisted on the need to carry out a popular consultation, capable of reversing these historic rulings, seeking to disregard the court’s pronouncements and activating a mechanism for a regression in rights. several members of the legislature have also insisted on bills aimed at openly disregarding another decision of the court (a case concerning the decriminalisation of abortion for rape, ruling 34-19-in/21 and subsequent additions), in a form of contempt and open defiance of the decisions of the highest body of constitutional control in the country. to date, after an intense debate on the controversial presidential objection, the national assembly has painstakingly approved a bill on the voluntary interruption of pregnancy in cases of rape, the official publication of which is still pending. similarly, in uruguay a group of conservative parliamentarians attempted to reject the approval of the transgender identities law via a consultative referendum. sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 167 through the struggles of the feminist movement, and the parallel theoretical reflection of lgbti people, that an essential contribution has been made to eroding this traditional model of gender and family. this has enabled the possibility of formally proposing new options in terms of ordinary legislation, whilst also giving rise to a wide range of theoretical positions which have a substantive impact on areas of discussion and the vindication of rights. currently, there are certain latin american legal systems which explicitly recognise gender claims and others which do so implicitly, whilst some others fail to acknowledge the issue entirely. among the more recent constitutions is that of ecuador (2008). in its 444 articles it mentions gender equality and the prohibition of discrimination on at least 13 occasions in different passages concerning education, health, the family and the integration of various institutions. this shows constitutional concern about the subject at least at a formal level. meanwhile, the bolivian constitution (2009), with 441 articles, refers to gender issues on at least 9 occasions. when outlining the values which inspire its state model and listing its catalogue of rights as well as the integration of certain bodies and institutions, this andean country has at least identified the issue of diversity as an area for discussion. the colombian constitution (1991), on the other hand, does not mention the issue of gender at all in its 380 articles, or at least not directly, and although certain social policies have nonetheless been adopted at local or national levels in relation to questions of gender, it is not possible to percieve any real impact in terms of sexual diversity in the country. when it comes to venezuela, its constitution (1999) mentions gender equality on two occasions in its preamble. thus, as can be seen, gender has found recognition in latin america’s most recent constitutionalism, which should set the tone for ordinary discussion, not only with regard to the eradication of discriminatory dynamics within a classic binary system, but also and principally in terms of the recognition and protection of (dissenting) gender identities. however, due to a common history inherited from the conservative religious tradition referred to above, even the most "progressive" regional constitutions seem to have failed to include the issue of "gender" as a wide-reaching and inclusive vindication of sexual diversity; they rather generally include it as a formal response aimed essentially at reaffirming women's rights. at most, latin american systems recognise the rights of homosexual people, in particular the right to same-sex marriage, yet they fail to articulate a comprehensive constitutionally protective framework for rights related to gender diversity. in fact, several aspects of latin american constituent pacts, which in principle are presented as facilitators of inclusive dialogues, may be veiled by a reality which hides persistent exclusions and prejudices, even, or especially, in constitutent moments, i.e., in extraordinary political (democratic) moments (ackerman 1991), when a new normative order is being drafted. it is then that the dominant, conservative social, political and economic forces make every effort to guarantee their interests, thereby diluting the original intention of acknowledging diversity and articulating inclusion. be that as it may, the gender agenda in today's latin american democracies cannot rely on a merely normative approach, one in which law is understood as the instrument which ultimately gives meaning and significance to different social relations. legal trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 168 visions have economic, political and cultural roots, which shape power relations. this is why, in order to understand latin american reality, the social dynamics of subordination and exclusion which define the rights agenda need to be explored. the aim of this paper is however far more modest. its purpose is to explore how these dynamics have been introduced in the legislative agendas enacted by various different parliaments, and to highlight their deficiencies. its ultimate aim is to illustrate the degree of legislative commitment in this area, or the denounce the lack of it. 3. the recognition of transgender rights and the legislative agenda in argentina, uruguay and chile although sometimes perceived as part of so-called new latin american constitutionalism, the argentinean constitution of 1994 is essentially conservative. nevertheless, after five bills were drafted with the aim of recognising the right to gender identity, the gender identity law 26.743 was sanctioned on 9 may 2012 and enacted two weeks later on 23 may. the product of trans activism and other sympathetic alliances, the aim of this law was to legally recognise the rights of people whose gender identity had hindered their access to legal rights: people that had been historically discarded as legal subjects on the basis of a binary construction of the person as a subject of rights, an abstract and universal construction which excludes all diversity. with the political and legal recognition of trans identities, this law dismantled the psychological determinism and gender naturalism which had prevailed in argentina, thus ushering in a new approach which favoured the acknowledgment of diversity. in substance, the law accepts the right to rectify identity data and allows for the recognition of social rights, guaranteeing access to health treatment for anyone who needs to modify their body in accordance with their self-perceived gender (article 3). importantly, this does not require a medical diagnosis or surgical intervention (article 4, final paragraph). the consent and will of the person alone is sufficient, overriding any kind of regulatory or procedural requirement aimed at limiting, restricting, excluding or suppressing the exercise of the right to gender identity. based on this logic of self-determination, the system must be interpreted in such terms that any normative requirement be always oriented in favour of allowing access to the chosen gender identity (article 13). in line with this logic, the law also guarantees recognition of gender identity for minors (article 12). in the current legal context, therefore, the consent of the person prevails and the right to bodily autonomy is valued over the naturalised notion of physical identity which has long been used as a mechanism to subjugate and suppress diversities. furthermore, in the province of buenos aires, legislation has been introduced in parallel with law 26.743 to strengthen the rights of transgender people. an example of this is the law on employment quotas, yet to be enacted. in addition to the above, the presidencial decree no 4676/21 (july 2021), concerning national registration, marks a clear step forward in the recognition of nonbinary identities. article 2 of the decree states: sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 169 "the terms to be used in national identity cards and ordinary passports for argentinians in the field referring to ‘sex’ may be ‘f’ (female), ‘m’ (male) or ‘x’. the latter shall be specified, as outlined in the provisions of article 4 of this decree, in the cases of nationals whose birth certificates have been rectified in accordance with law no. 26.743, whenever the registred option for ‘sex’ differs from ‘f’ (female) or ‘m’ (male), or when no ‘sex’ option has been specified". as specified in article 4, “for the purposes of this decree, the term ‘x’ as used in the field of ‘sex’ shall include the following meanings: non-binary, indeterminate, unspecified, undefined, unreported, self-perceived, or any other category with which the person who does not feel they fall within the male/female binomial may identify themselves". despite all of the above, we must not forget that trans people in argentina continue to be exposed to acts of violence and aggression as a result of discriminatory practices regarding gender identities, while obstacles to basic social rights such as health, education, work or decent housing still exist. in practice, if not in legal theory, the rule of conduct continues to be criminalisation, stigmatisation and pathologisation, based on the traditional heteronormative religious discourses which have permeated and prevailed in latin american ideology. argentina no formal recognition at a constitutional level legislative progress own elaboration following intense debate, in october 2018 the uruguayan parliament adopted the comprehensive law for trans persons (law 19.684). this had first been presented in parliament in 2017, and was endorsed by the senate. it recognises the right to a change of name and registered gender; urges the public sector to guarantee one percent of jobs to members of the trans community (articles 12 and 13); establishes a public policy of educational inclusion (articles 15 and 17); and guarantees the right of trans people not to be discriminated against or stigmatised, establishing measures for prevention, care, protection and reparation. these legislative advances are the result of a democratising public agenda, a particular focus of which is the violation of the rights of people from social groups who have historically been discriminated against in terms of sexuality and gender (sempol 2019). as such, this law highlights the introduction of a reparation regime for transgender people born before 31 december 1975 who can prove that they were victims of institutional violence for reasons related to their gender identity, through deprivation of liberty or other types of moral or physical harm. this could have been carried out by agents of the state or by people acting trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 170 with the state’s authorisation, support or acquiescence (article 10). as indicated above, this is included within a regulatory framework for education, health and labour policies. the law also proposes the need to create a legal watchdog based on a national diversity plan. in 2019 there was an attempt by a group of conservative mps to repeal the trans identity law through a referendum. members of the conservative opposition national party submitted a number of signatures to the electoral court in order to be allowed to organise a referendum to repeal the law. the referendum went ahead, but did not receive the expected support. nevertheless, the fact that it could be set in motion not only shows that certain legislative advances need to be reinforced with more far-reaching public policies, but also highlights the constant risk of backlash faced by transgender people’s rights, as well as the ongoing threat which conservative state institutions pose to progressive organisations and their claims. uruguay no formal recognition at a constitutional level legislative progress own elaboration in the case of chile, the post-dictatorship experience involved a period of intense democratic debates. during this transition period, however, opportunities for discussing the rights of the lgbti population were almost non-existent and in the context of the hiv-aids crisis of the 1980s specific agendas included the social and institutional criminalisation of homosexuality. partly due to the strong influence of conservative groups, the chilean democratic transition reinforced the ideology of heteronormativity. as has been the case in bolivia, ecuador, colombia and other countries in the region, in a form of latin american "common practice", the recognition of the rights of transgender people has been severely hindered by the design of criminal laws which have served to reinforce the dominant legal discourse, thereby criminalising diversity and difference. in chile, the criminal code, which punishes crimes against "morality and decency", has undoubtedly served to restrict the rights of trans women.3 this is not to say that the country has witnessed no legislative progrees. thanks to the mobilisation and social pressure of transgender groups, certain administrative and judicial advances have been attained. indeed, thanks to social activism, various judicial decisions were handed down in 2007 which opened the way to vindicating the rights to change one’s name and sex (gender) in registration documents without prior sex reassignment surgery.4 in the administrative sphere, ministerial reports have also been issued which deal with the recognition of the rights of transgender people, especially in 3. art. 373 of the chilean criminal code 4. "transsexuals make history by winning name and sex change lawsuit in court". 5 may 2007. available at: http:// www.movilh.cl/transexuales-hacen-historia-al-ganar-en-tribunales-demanda-por-cambio-de-nombre-y -sexo/. [accessed: 4 february 2022]. http://www.movilh.cl/transexuales-hacen-historia-al-ganar-en-tribunales-demanda-por-cambio-de-nombre-y-sexo http://www.movilh.cl/transexuales-hacen-historia-al-ganar-en-tribunales-demanda-por-cambio-de-nombre-y-sexo http://www.movilh.cl/transexuales-hacen-historia-al-ganar-en-tribunales-demanda-por-cambio-de-nombre-y-sexo sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 171 the field of health. meanwhile, in terms of education, the ministry of education’s report no. 0768 of 2017, concerning the rights of transgender children and students, stands out as significant. these developments have all acted as instigators of the subsequent legislative agenda. these advances and other emblematic precedents, such as the atala riffo vs. chile case, decided by the iacthr in 2012, and law 20-609 of 2012 known as the "zamudio" or anti-discrimination law, all played their part in the eventual passing of law 21120 in 2018. this recognises and protects the right to gender identity, regulating the procedures for permitting the rectification of a person's birth certificate in relation to their name and sex when the existing certificate is not congruent with their identity. the law is based on guiding principles such as non-pathologisation; non-arbitrary discrimination; confidentiality; dignity of treatment; the best interest of minors; and the principle of progressive autonomy. law 21120 should be viewed in tandem with others, such as law 20830, which came into force in 2015, thereby creating the civil union agreement, and law 21400, enacted on 9 december 2021, coming into force on 10 march 2022, and allowing samesex marriage along with adoption and lesbian and gay parenting. it is hoped that all these pieces of legislation, when combined with the case-law referred to above, will serve as a basis for the development of public policies and norms, as well as playing a part in informing the agenda for the constitutional convention which is currently discussing a new constitution in chile, and will hopefully herald a significant constitutional shift. it is worth bearing in mind, however, that despite the steps taken by chilean society and its democratic order to recognise and protect the rights of transgender people, the rejection of these rights by more conservative social and political sectors has also intensified. hence the importance of reinforcing trans gender empowerment and continuing efforts to claim their place in civic spaces. chile no formal recogni�on at a cons�tu�onal level (1980 cons�tu�on). meanwhile, a new text based on the cons�tu�onal conven�on is under dicussion. some case-law progress legislative progress own elaboration despite having conservative constitutional models, argentina, uruguay and chile have been pioneers in recognising and regulating the rights of transgender people in latin america. legislative and/or judicial avances have been fundamental in enhancing the rights of people belonging to historically victimised groups, creating conditions of equality and recognition of rights. we cannot forget, however, that this is just the tip of a large iceberg floating in a sea of exclusion and discrimination, the visible head which has emerged after a long history of demands and resistance led by trans people in the region. trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 172 4. the situation in colombia and ecuador in colombia, gender demands and demands for the recognition of transgender people's rights have not had the hoped for effect at a legal level. unlike argentina and uruguay, there is no specific legislation in colombia regulating and protecting these rights; at most there is a specific decree on their exercise.5 any development in this area has been achieved at the judicial level, based on a number of rulings of the colombian constitutional court. in a system where the preponderance of fundamental rights plays a central role, colombia's constitutional court has acted with special concern on issues of lgbti rights, even recognising the right of same-sex couples to equal marriage in 2006. in other cases, local decrees or local public policies have also contributed to the protection of transgender people's rights. in terms of legal gender reassignment, it was the constitutional court's ruling t-504/94 which marked the beginning of the legal debate. subsequently, rulings such as t-771/12; t-918/12; t-552/13; and t-063/15 have similarly allowed the court to rule on specific issues in relation to trans people's rights, such as the right to health; gender reasignment; compulsory military service; all based mainly on the concept of human dignity and the right to the free development of personality. the rejection of a pathologising approach to gender transitions is thus made explicit and a step has been taken towards an elective construction of gender, making less invasive instruments available to applicants in order to preserve individual autonomy (ruling t-063/15 of the constitutional court). likewise, in september 2019, on the basis of ruling t-447/19, the court decided on the rights of a trans child, who, through his mother, sued a notary's office which had not allowed him to change his name to reflect his gender identity. the court concluded that the absence of an efficient administrative mechanism to change a child's gender identity constitutes a violation of his or her fundamental rights. in a number of cases, this case-law momentum has been accompanied by appeals to the congress of the republic to enact a comprehensive gender identity law but the prevailing legislative inertia concerning the issue has unfortunately prevented them from being successful. nevertheless, the work of certain non-governmental organisations (ngos) has been crucial in promoting strategic litigation on the issue, making freedom and individual autonomy possible in the face of allegations of police abuse and constant harassment of various trans activists and sex workers in bogotá.6 5. decree 1227/2015 sole regulatory decree of the justice and law sector, related to the procedure to correct information on sex in the civil status registry. 6. according to the third ilga world trans legal mapping report, abuse of trans activists and sex workers continues to occur at the hands of the police, who often invoke "exhibitionism" laws to fine them, or physically attack them for going beyond the "defined space" for sex work. one transgender sex workers' organisation reports recurrent police harassment, with insults, physical violence and fines for drug use in private spaces. they also report completely unjustified violence during identity checks. (chiam et al 2020: 208). sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 173 colombia no formal recognition at a constitutional level case-law progress legislative inertia own elaboration ecuador, meanwhile, has as of 2008 a new constitution of the republic, which includes principles and values aimed at recognising diversity, non-discrimination and different types of families. despite this constitutional framework, however, at a legislative level the response to the rights agenda demanded by trans people has been partial, fragmentary and essentially deficient. nor does the constitution properly settle the issue in favour of trans people’s rights. rather, these appear to benefit from a merely formal or nominal recognition and often find themselves surrounded by ambiguities, or at the crossroads of the contradictions which often arise between different constitutional provisions (lópez 2018). indeed, although the organic law on identity and civil data management was passed in february 2016, thereby at least apparently articulating the protection of rights related to gender identity, there is no comprehensive legislation covering the issue. in fact, this organic law emphasizes a binary, patriarchal and heteronormative perspective, which tends to operate from suspicion. a prime example is the requirement for any person who transitions to another gender to provide two witnesses to prove the legitimacy of their choice.7 legislation thus casts a shadow of doubt over trans people claiming to exercise their rights, thereby restricting the free development of their personality, discarding any proper recognition of diversity and accentuating discrimination. case-law, on the other hand, has been more positive. in a 2017 ruling, concerning case 0288-12-ep, the ecuadorian constitutional court accepted the possibility of a change of legal gender based simply on the right to free development of personality. similarly, in constitutional rulings 10-18-cn and 11-18-cn of 2019, the same court paved the way for another contentious issue: the recognition via case-law of so-called egalitarian marriage. from that point onwards, constitutional jurisdiction has become an agent for lgtbi rights, thus making up for legislative inertia. specifically, in a 2017 ruling, in case 0288-12-ep, the court urged the national assembly to regulate the change of the ‘sex’ marker on identity cards of trans persons, granting the legislator a period of one year to generate the necessary regulation in this regard. to date, however, the national assembly 7. article 94, final paragraph, of the organic law on identity and civil data (2016) states: "...voluntarily, upon reaching the age of majority and once only, a person may replace the field of sex for a field of gender, which may be: male or female. the act shall be carried out in the presence of two witnesses who confirm there has been self-determination contrary to the sex of the applicant for a period of at least two years, in accordance with the requirements determined for this purpose in this law and its regulations. this change shall not affect the data in the person's single personal register relating to sex. should this situation arise, the petitioner may request a change of names based on the substitution of sex for gender...". trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 174 has not complied with the constitutional court’s resolution and its mandate to adapt the infra-constitutional legislative system, which is indicative of negligence in this area. within these various contexts the fight for the rights of transgender people has intensified, generating a whole network of activism and preventative legal advice in order to provide intervention in cases of police violence and discrimination.8 ecuador formal recognition at constitutional level legislative stagnation case-law progress own elaboration 5. the experience of bolivia and peru in the case of bolivia, as well as formal constitutional recognition of gender identity, the country’s legislative assembly passed a gender identity law (law 807) for transgender and transsexual people in 2016, thereby establishing a procedure for changing a person’s name and gender marker on identity documents. its enactment was clearly perceived as a step forward for the rights of transgender people. however, despite the expectation that, combined with the 2010 law against racism and all forms of discrimination, this would lead to regulation of the situation of trans people, things have not turned out as was hoped. while the bolivian legislature consolidated certain minimum thresholds of protection, a conservative case-law reversal took place when the plurinational constitutional court of bolivia declared, in november 2017, that the aforementioned law was partly unconstitutional. the decision responded to a suit filed against the law five months after its approval, based on legal and moral arguments. as pascale absi (2020, p. 38) points out, the lawsuit was filed "by the self-styled platform for life and family (a catholic and evangelist anti-abortion and anti-"gender ideology" coalition), with the support of six opposition assembly members (deputies and senators from the christian democratic party, among others). in the meantime, the first marriages of transgender people -some of them highly mediatised– resulted in reactivating the campaign against the law”. 8. since 2002, the transgender project in ecuador has been working on legal activism in the streets using what they have called itinerant legal patrols to prevent arbitrary arrests and violent and abusive interventions by police officers against sex workers. likewise, the pakta foundation is an organisation created by activists for the promotion and defence of the human rights of the lgbti population. sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 175 conservative groups have portrayed this as a "victory for the traditional family". meanwhile, trans groups in bolivia have continued to appeal to the national assembly, arguing that the void produced by the declaration of unconstitutionality completely undermines the original intent of the trans identity law as successfully approved by parliament. in this context, a municipal law was approved in la paz in 2018, which regulates spaces where self-managed sex work takes place and which benefits a significant proportion of transgender women. according to the local government, it came about as a result of a civil society initiative supported by several different organisations and based on consultations with various state institutions. the law states that the municipality must grant authorisation for sex work in order to prevent trafficking, sexual exploitation and procuring. however, the trans legal mapping report 2019 (2020: 200) has pointed out that: "civil organisations working for the rights of transgender people in bolivia have reported that drug possession is used as an excuse (sometimes involving false accusations or fabrications) to harass sex workers and their clients, and in some cases, imprison both”. in bolivia, therefore, everyday experience and struggle for the recognition of transgender people’s rights still have to contend with harassment, discrimination, lack of recognition and reactionary forces. bolivia formal recognition at a constituutional level legislative progress case-law reversal own elaboration in peru, meanwhile, the women and family congress commission approved a legal opinion in march 2021, proposing a gender identity law for the country which appeared to create a window of opportunity for the lgtbi community. unfortunately, parliament has failed as yet to pass any legislation on the matter. nevertheless, since the case of azul rojas marín vs. peru, decided by the iacthr in 2020, the vulnerable situation of the lgbti population has become more apparent, thereby increasing the opportunities for discussing the discrimination and violence suffered by transgender people and the urgent need to address it. perú no formal recognition at a constitutional level legislative stagnation own elaboration trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 176 6. overall conclusions the above discussion shows that the recognition of the rights of trans people throughout latin america is still fragmentary, inconsistent and often deficient. in some cases, trans people are criminalised based on criminal norms which represent the conservative stance prevalent in the region. in this situation, the constitutional and legislative orders, as well as case-law, all have a role to play, often as a result of strategic litigation, but there is a distinct lack of uniformity and consistency at any of these levels. even where recognition of rights has been possible, it has only been partial: social rights such as health, education, social security and inclusion remain unfulfilled for significant minorities. moreover, the implementation of certain policies using conformist legal approaches of control and surveillance, criminal law and repressive administrative procedures has often enabled the continuation of hegemonic conservative legal epistemologies in the region. where achieved, the partial recognition of rights has been made possible thanks to the impetus, mobilisation and strength of purpose of activist groups and associations which embody this historical struggle, fighting their way as they have through the complex relationship between judges, legislators, public bodies and pressure groups which strive to maintain the conservative approach which largely embodies latin american "legal orders". to their credit, the voices championing more progressive rights have refused to be silenced in the face of democratic attrition, reversals and restrictiveness. in those latin american countries where a degree of regulation has been achieved, it has not always been accompanied by jurisdictional support. in the bolivian case, for example, constitutional case-law even led to a dismantling of existing legislative advances. in contrast, in countries such as ecuador and colombia, their respective constitutional courts have been far more pro-active and forward-looking in the face of lack of specific and comprehensive regulation, playing a vital role in the protection of rights as mediators in the complex relationship between the legislators, public authorities and jurisdictional bodies. what definitely does seem to have played a significant role in recent times is the influence of the international human rights system, which has permeated national states and successfully broadened protective frameworks thanks to persistent social mobilisation, thus increasing the visibility of hitherto stigmatised groups. there could be several factors that account for the generalised absence of legislation granting adequate protection to the rights of trans people: the marked conservatism of the members of national legislative bodies, who reflect heteronormativity as a remnant of traditional, immovable, hierarchical gender roles; the conservative backlash which threatens to disregard the more progressive constitutional covenants through regressive reforms of the content of rights; a legislative rhetoric aimed at "civilising" and "ordering" bodies and behaviours on the basis of supposed moral superiority; and the understanding of law as a tool of power, social control and surveillance which encourages orthodox and "civilising" behaviour (tapia 2019). these are just some of the many causes which merit further discussion and analysis with a view to understanding the limited legal protection available to transgender people. in view of this, even the most progressive constitutions in the region, such as those of ecuador (2008) and bolivia (2009), with their updated agendas concerning human rights, sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 177 have not proved sufficient to instigate a coherent legislative approach to the rights of trans people. meanwhile, at a constitutional level, the understanding of "gender" seems to ignore any comprehensive protection of gender-diversity as such. by way of contrast, as the argentinean case indicates, more conservative constitutions in terms of fundamental rights, which fail to give explicit recognition to demands concerning gender, have not necessarily prevented legislators from taking a more progressive approach to the protection of rights for gender-diverse people. what seems clear is that a paradigm shift in the recognition and protection of rights seems to be taking place in the region, brought about by new constitutional pacts, by the mobilisation of organised pressure groups and/or by the acceptance of international human rights instruments. it is equally clear, however, that formal recognition, whether based on the constitution, legislation or case-law, is still inadequate and fragile (chiam et al 2020). it also has to contend with the actions of "agencies" linked to more conservative sectors, which have proved to be a key obstacle to the effective realisation of the rights of trans people at a general level. even where the rights of transgender people are recognised by law, there is still a long way to go to eradicate discriminatory and violent behaviour, be it physical or institutional. as such, beyond some specific cases where there has been a legislative shift from a model of stigmatisation to one of recognition and self-determination, the limited attention paid to issues related to the rights agenda has tended to prevail, with no real concern, meaning or significance given to the proposals of trans movements which are attempting to create a space for discussion within the dominant hegemonic discourse. also pending is the task of increasing awareness about the limitations of legal strategies which are often resorted to in order to ensure a threshold of state protection, but which in fact often simply make the daily experience of oppressed bodies invisible. discourses which properly contemplate non-binary realities are scarce, and in many cases cover up strategies of criminalisation and state persecution by implementing laws which are apparently protective, but ultimately ineffective.9 this has necessarily led to the development of new concepts and strategies for the consolidation and defence of rights in the latin american context, a good example being the network for lgbt litigation. 9. anti-narcotics laws are often used to criminalise transgender people in bolivia, the dominican republic, colombia and ecuador. as the informe de mapeo legal trans 2019: reconocimiento ante la ley trans (trans legal mapping report 2019: recognition before the law) (2020: 190) reveals: "in bolivia, drug possession is frequently used as a reason, often with allegedly false accusations, to harass and even imprison trans sex workers and their clients. in colombia, 40% of lgbti people and 30% of transgender people who are imprisoned are convicted for drug offences. ecuador also reports high rates of trans persons being imprisoned for drug-related offences...". the same report, in relation to the ecuadorian situation, states: "...according to civil society, the 2014 ordinance regulating the urban regeneration zone in downtown guayaquil is used to profile transgender sex workers. when trans people are in public spaces or engage in sex work discreetly, paragraph (c) of the ordinance applies, while when they engage in sex work openly, paragraph (f) applies. municipal, metropolitan and national police use ordinances such as these to justify recurrent violence against trans sex workers. in addition, they report that many transgender people are in prison for drug-related offences..." (chiam et al 2020: 1; 215). similarly, in chile and peru, identity control laws are frequently used against transgender people. trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 178 this journey through various latin american legislative agendas and advances in case-law invites a deeper reflection about the role of legislatory bodies, the judiciary and public authorities in general in plural contexts of exclusion and discrimination against social groups which have not been able to achieve proper state protection. questioning the role of the law and how exactly its narrative is constructed around the protection of rights is a necessary process for underpinning greater and enhanced recognition in an area where the region’s more conservative forces are fighting to uphold a fragmented and limited protection of such rights, leaving anyone who is considered "different" out of the social contract. as blanca rodríguez has stated, “greater legislative activity is not necessarily synonymous with a better regulatory framework” (rodríguez ruiz 2010). references absi, p. (2020), “el género sin sexo ni derechos: le ley de identidad de género en bolivia”, debate feminista, nº 59, pp. 31-47. https://doi.org/10.22201/cieg.2594066xe.2020.59.02 ackerman, b. we the people, vol.1, foundations.cambridge: harvard university press, 1991. butler, j. y spivak, g. (2009), quién le canta al estado-nación, buenos aires: paidós, pp. 57-58. chiam, z., duffy, s., gonzález gil, m., goodwin, l., y mpemba patel, n. (2020), informe de mapeo legal trans 2019: reconocimiento ante la ley. ginebra: ilga mundo. lópez hidalgo, s. (2018), reflexiones acerca de la legitimidad democrática de la justicia constitucional en ecuador, quito: corporación de estudios y publicacionesuniversidad andina simón bolívar. lugones, m. (2010), “toward a decolonial feminism”, hypatia, nº 25(4), pp. 742-759. https://doi.org/10.1111/j.1527-2001.2010.01137.x mignolo, w. (2011), the darker side of western modernity: global future, decolonial options, durham: duke university press. https://doi.org/10.1215/9780822394501 quijano, a. (2000), “colonialidad del poder y clasificación social”, journal of worldsystems research, nº vi(2), pp. 342-386. https://doi.org/10.5195/jwsr.2000.228 rodríguez ruiz, b. (2010), “hacia un estado post-patriarcal. feminismo y cuidadanía”, revista de estudios políticos, nº. 149, p. 87-122. rubio marín, r. y osella, s. (2020), “el nuevo derecho constitucional a la identidad de género: entre la libertad de elección, el incremento de categorías y la subjetividad y fluidez de sus contenidos. un análisis desde el derecho comparado”, revista española de derecho constitucional, nº 118, p. 45-75. https://doi.org/10.18042/cepc/redc.118.02 sempol, d. (2019), “memorias trans y violencia estatal. le ley integral para las personas trans y los debates sobre el pasado reciente en uruguay”, revista páginas, nº 11(27). available at: http://revistapaginas.unr.edu.ar/index.php/revpaginas [accessed 1 november 2021] https://doi.org/10.22201/cieg.2594066xe.2020.59.02 https://doi.org/10.1111/j.1527-2001.2010.01137.x https://doi.org/10.1215/9780822394501 https://doi.org/10.5195/jwsr.2000.228 https://doi.org/10.18042/cepc/redc.118.02 http://revistapaginas.unr.edu.ar/index.php/revpaginas sebastián lópez hidalgo the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 179 tapia, s. (2019), “continuidades coloniales: del discurso de la protección a la familia a la regulación de la violencia contra las mujeres en el derecho ecuatoriano del siglo xx”, revista universidad verdad, nº 75, pp. 45-59. https://doi.org/10.33324/uv.v1i75.210 uprimny, r. (2011), “las transformaciones constitucionales recientes en américa latina: tendencias y desafíos”, in c. rodríguez garavito (coord.), el derecho en américa latina. un mapa para el pensamiento jurídico del siglo xxi, buenos aires: siglo veintiuno eds, pp. 109-134. viciano pastor, r. y martínez dalmau, (2010), “aspectos generales del nuevo constitucionalismo latinoamericano”, en el nuevo constitucionalismo en américa latina, quito: corte constitucional del ecuador para el período de transición, pp. 13-38. case law corte constitucional de colombia. (1994). caso t-504/94. santa fe de bogotá: corte constitucional. corte constitucional de colombia. (2012a). caso t-771/12. santa fe de bogotá: corte constitucional. corte constitucional de colombia. (2012b). caso t-918/12. santa fe de bogotá: corte constitucional. corte constitucional de colombia. (2013). caso t-552/13. santa fe de bogotá: corte constitucional. corte constitucional de colombia. (2015). caso t-063/15. santa fe de bogotá: corte constitucional. corte constitucional de colombia. (2019). caso t-447/19. santa fe de bogotá: corte constitucional. corte constitucional del ecuador. (2017). caso 0288-12-ep. quito: corte constitucional del ecuador. corte constitucional del ecuador (2019). caso 10-18-cn. quito: corte constitucional del ecuador. corte constitucional del ecuador (2019). caso 11-18-cn. quito: corte constitucional del ecuador. corte constitucional del ecuador (2021). caso 34-19-in/21. quito: corte constitucional del ecuador. corte interamericana de derechos humanos. (2012). caso atala riffo y niñas vs. chile. san josé de costa rica: cidh. corte interamericana de derechos humanos. (2020). caso azul rojas marín y otra vs. perú. san josé de costa rica: cidh. https://doi.org/10.33324/uv.v1i75.210 trans rights: the ongoing debate in latin american legal agendas the age of human rights journal, 18 (june 2022) pp. 163-180 issn: 2340-9592 doi: 10.17561/tahrj.v18.7061 180 legislation argentina. decreto presidencial no 4676/21 (2021). argentina. senado y cámara de diputados de la nación argentina. (2012). ley 26.743. buenos aires: boletín oficial. bolivia. asamblea legislativa plurinacional. (2016). ley de identidad de género. la paz. chile. circular ministerial nro. 0768. ministerio de educación. abril 2017. chile. congreso nacional. (2018). ley 21120. santiago. chile. congreso nacional. (2015). ley 20830. santiago. chile. congreso nacional. (2021). ley 21400. santiago. ecuador. asamblea constituyente. (2008). constitución del ecuador. quito: registro oficial nro. 449. ecuador. asamblea nacional. (2016). ley orgánica de gestión de la identidad y datos civiles. quito: registro oficial suplemento 684. uruguay. senado y la cámara de representantes de la república oriental del uruguay. (2018). ley no.19.684. montevideo: registro nacional de leyes y decretos. received: november 25th 2021 accepted: april, 4th 2022 trans rights: the ongoing debate in latin american legal agendas* abstract 1. introduction 2. the latin american context and the rights of transgender people 3. the recognition of transgender rights and the legislative agenda in argentina, uruguay and chil 4. the situation in colombia and ecuador 5. the experience of bolivia and peru 6. overall conclusions references a cartography of critical legal theories the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 242 a cartography of critical legal theories: notes for a reflection on the relation between law and power1 victor merino-sancho2 abstract: this paper proposes an identification of the main arguments suggested by certain critical theories concerning the relationship between law and power. in order to (re)think the function of law as an instrument not only of power, but as an element of social transformation, we promote here a reflection on aspects raised by these theories; among others, the same notion of power, oppression, intersectionality or decoloniality. these categories are relevant to examine how law regulates the experiences of discrimination of specific social groups, highlighting the intimate relationship between the social contexts, the premises and the legal answers. to do so, we examine in particular how asylum law responds to claims grounded on sexual orientation and gender identity. finally, this reasoning suggests a conception of law oriented to action and the social change. keywords: law, power, sexuality, gender, decoloniality, critical theories. summary: 1. introduction. 2. individuality vs. contextualization. 3. the dual vision of law: power according to foucault. 4. law and power from critical feminist currents: domination and oppression in mackinnon and young. 5. the complexity of social structures: intersectionality in crenshaw. 6. revisiting the notion of power: butler's contributions. 7. displacements and the return to knowledge/ power: the decolonial theory. 8. the (de)coloniality of the genre: anzaldúa, lugones and spivak. 9. can we build a self-narrative? bibliography. a cartography of critical theories of law: notes for a reflection on the relation between law and power 1. introduction the emergence of new theoretical frameworks to explain and understand law and rights has enriched the debate on certain premises or dimensions traditionally accepted, such as the idea of equality, as some characteristics of the subject of rights. although this is not a new phenomenon, even less in the field of legal philosophy, it is worthwhile to understand those challenges posed by recent approaches in a socio-political context in which rights are at tangible risk of being attacked. the constant adoption of measures restricting the entry into european territory and its effects shows the excessively fragile 1 this work is part of the research project jurisagrex “ius-philosophical keys for the analysis of jurisprudence on sexual assault and abuse” (ref. rti2018-096476-b-i00) of the 2018 call for “r&d projects challenges research” of the ministry of science, innovation and universities. 2 associate professor, universitat rovira i virgili, spain (victor.merino@urv.cat). victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 243 protection of the refugees’ rights3, at the same time as political discourses are resurfacing the threaten (and on occasions restrictions indeed) of women’s rights4 and lgtbiq groups5, among others. we can even say that these groups and minorities face more difficulties and obstacles in the protection and fulfilment of their human rights, very often due to social and power-related reasons. with this scenario, this paper proposes a cartography of some notions and theories to rethink specific key questions related to law and power, and regarding their connections in particular. this specific approach has been widely, though not peacefully, addressed by the so-called alternative or critical legal theories (hereinafter clt), admitting the "materiality" of law and its dependence on social and political structures, moving away from a transcendental sense of justice (barrère, 2018). if, as these theories suggest, law is not neutral but apprehends both the sense of structures and the relations generated from power, it is possible to argue that legal discourse creates a truth that is not neutral either. somehow, it is aligned with the meaning of the socio-political structures. these clt have had a greater echo in the social sciences, philosophy and anthropology, amongst others, but less in legal theory (barrère, 2010). also, probably due to the fragility of some claims of the clt (arias marín, 2013: 108). generally speaking, many of these authors reiterate the aforementioned materiality of the law and its use as a tool for maintaining power relations, which has sometimes resulted in criticism of human rights. for instance, when their universalist character is called into question or a conflict of values is wielded. we may admit that there is a distance or “non-correspondence between the discursive and the normative development of the human rights project” (arias marín, 2013: 101), or a tension between its universalistic orientation and the claim of a cultural diversity, but this does not mean that this “critical distance” would be solved by the neglect of human rights (de sousa santos, 2019). in this discussion, we propose this cartography to understand how these theories problematize basic legal issues and the practice of human rights, supposing that the improvement of the protection of the rights of the most vulnerable will result in the strengthening of the human rights and their ethics. this is why this study analyze legal responses provided by international and national bodies. since there are many issues to address, this work focuses especially on the controversies and legal barriers to provide an 3 this has been pointed out since 2015 by the council of europe human rights commissioner in his report human rights in europe: from crisis to renewal. https://rm.coe.int/human-rights-in-europe-from-crisisto-renewal-/168077fb04 (last consulted 17 april 2020). 4 in this sense, the platform of international experts of the united nations in the fight against violence against women and girls pronounced barely less than a year ago in the communiqué “violence and harassment against women and girls in the world of work is a human rights violation, say independent human rights mechanisms on violence against women and women’s rights”. 5 this was stated by the un independent expert on protection from violence based on sexual orientation and gender identity and the rapporteur on the rights of lgbti people of the inter-american commission on human rights in their joint statement of october 2019. https://www.ohchr.org/en/newsevents/pages/ displaynews.aspx?newsid=25120&langid=e (last consulted 17 april 2020) a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 244 effective protection to asylum claims grounded on sexual orientation and gender identity. we understand the case of these refugees as a clear example of a lack of protection of rights, in whose analysis some approaches and ideas of these theories deserve to be considered. our initial hypothesis here is that some of the premises of the legal responses to such claims are based on social and structural power relations linked to race, national origin, gender and sexuality issues. if someone takes a certain historical or comparative perspective on these responses, it is possible to conclude that they were initially rejected for legal and pre-eminently contextual reasons (i.e., the exclusion of sexual orientation and gender identity from the refugee law), insofar as they had to do with the ways of understanding these diverse identities and sexualities (i.e., a private matter without any public dimension). later on, they were admitted, but in an inconsistent way – since very different, sometimes contradictory reasons were given and there are not common reasonings or justifications and even in the short term, without modifying the asylum system or ensuring or consolidating this protection based on human rights. with the aim of providing elements for the discussion, we propose a map of the central reasonings of critical feminist theories, the intersectionality approach, some notions from the post-structural theory and from the decolonial theories. these theories may provide some parameters of analysis of issues of power related to gender and sexual orientation in a context of globalization, which requires to refer to decolonial reasonings. first, because they explain and question the presuppositions of hegemonic discourses about the subject of rights, policies and ideas. second, because these notions become a challenge the legal phenomenon, since they promote the (de)construction of the identities and the (preeminent) power structures that permeate it. specifically, i refer to foucault’s notions of power, domination and oppression in mackinnon and young, intersectionality in crenshaw, diaspora in brah, identity/subjectivity in butler, coloniality in mignolo and quijano, and gender coloniality in lugones, anzaldúa and spivak. all with the aim of strengthening the strategies and possibilities of action of the law (barrère, 2018: 16-19). 2. individuality vs. contextualization there is a clear assumption in this work; we are contextualized or situated subjects, and our identity is created according to the socio-cultural structures in which we develop our personal projects. despite that, we do not focus specifically on identity issues, but whether the law assumes or not these issues or the contextualization of subjects, and if so, which are its effects. being aware that equality before the law should rest on the idea of an abstract subject, this character has been questioned by the aforementioned theories saying that this subject could have been constructed de facto with certain biases of gender, sexuality, race, capacity, etc. this could be also the reason why the exclusion of the experiences of persecution of certain groups from the asylum system requires a deeper reflection in these terms. mainly, we can say, because the asylum procedures were thought in accordance with the experiences of persecution of a particular group -the socalled political refugees-, without having changed much since 1951, and this regime still victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 245 demands a self-referential narrative from subjects whose account should fit in with these features or assumptions initially configured6. if these theories are correct, then, an analysis about this "neutralizing" process and its consequences is needed. in this regard, we bring different kind of theories trying to construct a set of criteria to dismantle the obstacles for an effective protection of human rights, or at least to point out those (political or theoretical) premises which exclude some subjects or objects. for instance, we need to understand whether migration policies produce normativity not only in relation to territoriality or citizenship, but also in relation to sexuality and the perceptions or expressions of gender. if this is the case, the universality of this subject must be examined from the perspective of the otherness (if we take as valid the butler proposal of the constitutive processes of the subject, as we will see later), produced from multiple axes, structures and processes that construct societies. similarly, the role and functions of the law are also in question. these theories have “destabilized” some categories promoting the resignification of identities, when the role of law and its connection to power remains controversial. for this same reason, the complex identities resulting from the share of various characteristics or the adscription to social groups in a situation of vulnerability or absence of power (such as the lgtbiq asylum seeker) are taken as a paradigm or object of discussion. the demands of these subjects are usually linked to aspirations and claims that are strongly linked to the contexts and that may require a reinterpretation of existing legal measures or institutions (as has happened in relation to citizenship, marriage or asylum) or new demands (like the claim of a right to gender self-determination and sexual identity, for example). all this to promote the emancipation of individuals with a relational perspective of rights, suggested by álvarez (2017a: 42), and to enhance the role and functions of the law in this respect. 3. the dual vision of law: power according to foucault traditionally, law has been understood as a tool or mechanism for the maintenance and dissemination of power, which comes to merge the political and the legal (luhman, 2006: 291). thus, in the description of the law as a system, luhmann maintains that the legal communications and the law consequently have a double function; "to be a factor of production and to be conservative of the structures" (ibid, 32). this dual conception as a mechanism of power maintenance as well as a tool of social change for emancipation has been invoked by different approaches to reflect on the meanings and functions of the law, politics or even the same notion of power (cordero, 2020: 4). in this sense we may interpret the evolution on the sense of law in foucault's texts, who, in his first works on 6 this exemplifies the need to review, or at least rethink, the assumptions of a regime such as asylum. while the express recognition of sexual orientation and gender identity is a step forward towards the protection of these claims, the obstacles arising from the status determination procedure, as well as from reception or arrival, show the inadequacies or deficiencies in this regard. the recognition of refugee status is conditional on the proof of the acts that are considered persecution, and it can be established on the basis of substantiated and accurate (as possible) accounts of the acts lived by the subject (millbank, 2009) a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 246 the genealogy of power, identified it as a "sword", that is to say, as mechanism of power characteristic of the ancien regime (foucault, 2011:44). the french thinker argues then rights are specific forms of knowledge-power that shape or produce the subject (foucault, 2000; golder, 2015: 287). however, in his latest writings we can see a change in his perception of (individual) rights, as he finally conceives them as possible mechanisms to confront power, at least strategically (golder, 2015: 295). foucault’s theoretical approach to power has influenced most of critical theories, although he relegates law as a secondary element in the allocation of positions and the imposition of relations of power. his interest lies in explaining and examining its expression – of power -, and how its exercise is central in different fields outside the legal phenomenon, such as the economy, demography or medicine. this is possible because he understands it as an element of control or creator of discipline that articulates diverse technologies, regimes and/or devices, which in turn permeates all social instances, including the construction of the truth (foucault, 2011). according to him, power passes from functioning with a "punitive mechanics" (foucault, 2000), roughly understood as a prohibition of conducts and the corresponding punishment, to reproduce itself in the form of "incitement, seduction and production of knowledge" (sauquillo, 2017: 192 and following), and hence establishing regimes of veracity (foucault, 2000). this transit is possible when power is decentralized (not being located in any specific figure, like the king or the ruler) and is exercised by and through different social structures of any community, using the creation and reproduction of knowledge in the shape of truth. for this reason, for foucault, the discursive practice has a socio-political character. that is to say, the discourse, this is "the detention and diffusion of the word", and its formation are constructed and diffused in and from the field of normativity, not necessarily or not always with a legal or regulatory appearance, what demands its "political analysis" or examination beyond the law (sauquillo, 2017: 135). in other words, power creates knowledge, and the latter dilutes and deploys the logic of the former in every area of society (foucault, 2000). in his history of sexuality and other writings, foucault (2002) explains this iter in order to understand the creation and subsequent reception in medical discourses of homosexual identity. if before there was no such category that of homosexual -, much less in relation to people's subjectivity, its creation finally produces a normativity from which to identify and regulate not only behaviors, but also identities, and therefore subjects. sexuality becomes then an object of knowledge and a normative sphere (the permission or prohibition of sexual practices or public health measures are good examples), whose immediate consequence is the criminalization of non-heteronormative sexual practices and non-hegemonic identities (foucault, 2002; weeks, 2007). at this stage, law appears as a source to legitimize this medical order, while relying on the objectivity of the latter to justify such regulation (foucault, 2002). this would explain the prohibition of homosexual intercourses in some countries when homosexuality was considered a mental illness at the dsm until 1973, or the pathologization of transgender’s experiences due to the gender dysphoria is still included at the dsm. we see, according to the french thinker, the creation of a framework in which this diffuse power is diluted, and its logic becomes intelligible. at victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 247 first, this interpretation excludes any possibility of agency or autonomy of the subjects (thus rejecting the liberal theory of rights), nevertheless, in his last writings a change is glimpsed. foucault affirms that there is a minimum autonomy of subjects from which he deduced an instrumental vision of rights. this means that, for him, rights become mechanisms of resistance to power, and if so, law can then be understood as an instrument for change (golder & fitzpatrick, 2009). in fact, he calls a revision of proceedings rules, criminal system or even autonomy in relation to sexuality, insisting on rejecting the existence of a human nature and therefore a subject of rights unconnected to the historical-social reality (golder, 2015). sensu contrario, the subject or rights has to be (at least social and politically) defined. this allows us to bring here the concept of relational autonomy because it admits "varied developments that can strongly condition its exercise" (alvarez 2017b:149), complementing foucault's notion of autonomy. the question that remains, then, is whether this requires a more specific concretion of the subject of rights and to what extent. regarding the specific case of lgtbiq refugees, for instance, whether is needed a specific recognition of this kind of claim, without limiting the entitlement of the right to asylum. 4. law and power from critical feminist currents: domination and oppression in mackinnon and young although the historiography of foucaultian power constitutes one of the bestknown criticisms of traditional conceptions of power, there are close positions explaining its logic and effects with a similar intensity and highlighting some other relevant dimensions. specifically, i refer to those coming from critical feminisms, in particular young and mackinnon’s, whose works examine their interactions in inter-gender relations. broadly speaking, they review the interpretation given to sexual difference and the normative discourses it produces. in an explanatory key, they address the construction and meaning of gender-based stereotypes, identities or models based on a logic of unequal power that assigns spaces, times, normativity and value to each of these dimensions in a concrete social context (molina petit, 2003: 125; añón, 2016). with this starting point, young argues that the mechanisms that maintain power relations are also based on domination or oppression. while domination refers "to the institutional obstacles for self-determination", oppression "prevents people from participating in the determination of their actions or the conditions of their actions" (young, 2000a: 67-68). therefore, oppression implies domination and results from a process of subjection or limitation of capacities and possibilities of action. the characterization of oppression as a structural and systemic phenomenon, conceived therefore as imbalance of power between groups (añón, 2014), reveals how it permeates the systems, structures and social institutions "as a consequence of the normal processes of daily life" (young, 2000b: 75). the key question is whether this group contextualization means that the social system contributes or gives meaning to identities, exceeding the foucault’s approach. in her work inclusion & democracy, young (2000a) resumes the characterization of gender difference as a structural difference founded on oppression, what explains it disposes a series of relations and interactions from which some options are constructed meanwhile others are excluded. here lies the normative and unequal character that a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 248 ends up shaping the social system in which subjects and social groups are constructed simultaneously (young, 2000a: 98). for this reason, social systems cannot be understood independently from the subjects that compose them, without identifying the processes from which their interactions happen, nor the normativity ruling these complex actions and expectations of individuals and collectives (young, 2000a: 95 and following). in some way, we are constructed in social systems and the subjects continue assuring their continuity at the same time that we reproduce their structures and relations. this conception explains that oppression manifests itself through different forms and how systems and subsystems interact, considering law as one of these system (young, 2000b: 86 and following). the situation of oppression is reproduced through the different subsystems being at the same time cause and consequence of each other, departing from a notion of inequality different from that of a non-equal distribution of resources. this inequality constitutes the "root" of its diverse manifestations at the same time as its own effect, and it is characterized for being structural, social, systemic and diffuse (barrère & morondo, 2005). according to barrère & morondo (2005: 151-158), there is means this is "an inequality of status or power instituted by a norm (or, better, a system of norms) that does not appear explicitly in any corpus (hence "diffuse" discrimination), but it structures the social functioning and reproduces itself both systematically (regardless of the intentionality or will of isolated individuals) and institutionally, insofar as the institutions governing social life do not carry out active or "positive" policies against it". this notion highlights the insufficiency of those analyses based on the individualization of actions or on a unique axe of discrimination, and even the principle of the prohibition of discrimination to combat this situation (añón, 2014: 113 ff.). then, this means that law would be an effective or appropriate tool to eradicate inequality only if it overcame the individual experiences of oppression, assuming its structural, social, systemic and diffuse character. this may not affect human rights, at least initially, but most of the current conventions of rights usually refer only to the non-discrimination principle. however, general and sectorial human rights bodies develop different protection instruments and mechanisms, some of which tend already to incorporate this approach (e.gr., the committee on economic, social and cultural rights7, the committee on the elimination of discrimination against women8, etc.). 7 in this sense, the cescr defines substantive discrimination in the general comment nº 20 on nondiscrimination in economic, social and cultural rights (art. 2, para. 2, of the international covenant on economic, social and cultural rights) (e/c.12/gc/20, 2 july 2009), paragraph 9, b, saying that: “substantive discrimination: merely addressing formal discrimination will not ensure substantive equality as envisaged and defined by article 2, paragraph 2. the effective enjoyment of covenant rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination. eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. states parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination. for example, ensuring that all individuals have equal access to adequate housing, water and sanitation will help to overcome discrimination against women and girl children and persons living in informal settlements and rural areas”. 8 in this regard, the cedaw asserts in its general comment nº 25 on article 4, paragraph 1, of the convention (temporary special measures) (13th session, 2004), paragraphs 9 and 10 that 9. equality of results is the logical corollary of de facto or substantive equality. these results may be quantitative and/or victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 249 concerning the relationship between law and power, the understanding of law as a construct that reproduces "domination", raised by mackinnon (1995: 397 and following), is closer to the young’s notions of oppression and law. mackinnon maintains that gender and inequality have been examined "as questions of equality and difference" (mackinnon, 1995, p. 393), since the epistemology of difference has traditionally conceived the sex and therefore the sexual difference as a fact. instead, she holds that relations are constructed from domination and law reproduces it. this model of domination turns equality into a question of power distribution, as occurs with gender, creating identities based on the supremacy of men and the subordination of women (mackinnon, 2006a: 248-249). in short, power is the point of origin from which differences are constructed. the epistemology of the difference has naturalized an androcentric model that takes the masculine or the male as "the standard" imposing already certain positions that distribute power (mackinnon, 2006a: 250). this same reasoning has been used to question the androcentric interpretation of human rights (arias marín, 2013: 107), when some international initiatives against gender-based discrimination and violence have problematized some conceptions and practices of some human rights bodies (mackinnon, 1995). in this regard, some interesting reasonings are made in her analysis of the legal prohibition of sexual violence. according to her, the sexual component of this violence affirms its structural character and is a consequence of inequality in social life (mackinnon, 1995: 439-440). however, the legal responses to combat it were initially gender-blinded, that is, presumably blind to gender dimensions, or gender-neutral. this, she explains, has led to insufficient and partial regulations and mechanisms when they are actually formulated from an androcentric point of view (mackinnon, 2006b: 270). in this sense, the first criminal regulations to combat the so-called domestic violence or so-called abuse did not take into account gender at all. similarly, the (legal) significance of rape out of a paradigm of domination created the myth of the strange/unknown aggressor in rape cases around the 1970s. now it is possible to interpret it as a mechanism or mode of control of women's sexuality and even, i would say, as a result of the conjugation of both systems of domination sexism and racism creating the myth of the black rapist (wriggings, 1996: 502-505). social structures, therefore, shape the law and its practice. 5. the complexity of social structures: intersectionality in crenshaw we mentioned earlier the possible interplay of apparently unrelated social systems and structures. crenshaw suggests that when different axes of discrimination (domination in the sense proposed by mackinnon) intersect (meaning coinciding in the same case/ person) results in a final and unique identity which cannot be understood just as the mere addition of one to the other ground (crenshaw, 1996). this notion assumes that the traits qualitative in nature; that is, women enjoying their rights in various fields in fairly equal numbers with men, enjoying the same income levels, equality in decisionmaking and political influence, and women enjoying freedom from violence. 10. the position of women will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed. the lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns. a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 250 that make up an identity constitute criteria of belonging to groups or collectives that occupy positions of subordination / lack of power / discrimination (it is the case of being "cis woman", "lesbian" and "refugee"), and this idea of concurrence or crossing gives rise to the so-called "intersectionality" (crenshaw, 1996). in other words, a refugee woman may face situations of discrimination sometimes solely for "being a woman", others solely for "being a lesbian", others for "being a refugee", and others may be due to be a "lesbian refugee woman" at the same time (parella, 2003: 139 and ff)9. so, there are situations in which a singular individual holds different positions of power in combination with other powerless positions, what creates subsystems of domination. this means power relocates subjects according to the position and axes in a set of different systems and subsystems. as suggested by barrère and morondo (2011: 31), although intersectionality does not question the structures of oppression, it serves to identify the assumptions and reasons or effects of the inadequacies of anti-discrimination measures (among others) that do not address the complexity of these realities. in this framework, we wonder whether the law is an adequate instrument to respond to a notion of mobile power, articulated from different features or when different social axes crossed. in fact, the main problem is its suitability to apply, and in that case to which extent, in those situations resulting from the intersection of several grounds, having in mind that legal norms are singularized precisely by the general and abstract nature of the norms and the non-discrimination paradigm. in this sense, various analysis have explained the insufficiencies of this paradigm and the obstacles for an effective protection of rights (añón, 2014; barrère and morondo, 2011). given the nature of the refugee law and the preexistence of a cross of borders, this framework should be useful to understand every claim of protection and requires to adopt an intersectional approach, what it is not very common. similar to crenshaw, with a clear connection with the experiences of refugees, brah proposes an analysis of the diaspora as a characteristic reality of today's globalized world, defined as a space or a place inhabited by subjects whose identity is necessarily the result of the intersection of different axes of power. in fact, she understands power as multiaxial in a constant process of formation and displacement (brah, 2011: 216-217). this notion of power is interesting because, unlike foucault's proposal, it allows her to adopt an intersectional and structural approach to the possible positionalities. in fact, brah asserts that, when identity traits are combined with each other "in the articulation of power", differentiated images or perceptions are created affecting us in an unequal way according to the different origin or space occupied (brah, 2011: 216). 9 in this regard, in the aforementioned gc 25, paragraph 12, the cedaw states that “certain groups of women, in addition to suffering from discrimination directed against them as women, may also suffer from multiple forms of discrimination based on additional grounds such as race, ethnic or religious identity, disability, age, class, caste or other factors. such discrimination may affect these groups of women primarily, or to a different degree or in different ways than men. states parties may need to take specific temporary special measures to eliminate such multiple forms of discrimination against women and its compounded negative impact on them”. it seems the committee is likely to interpret the convention with the intersectional approach, although there is still some discussions concerning the axes to be considered (campbell, 2016). victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 251 this means that each trait or characteristic has different meanings depending on the spatial locations and the displacements, becoming this useful to understand the possible different meanings of the identity categories. we wonder if this may affect, and if so how, the construction of the subject of rights and to what extent some critiques to the universalistic character of human rights resort to this argument. however, this cannot particularize any situation or give the same relevance to all the traits, because here lies one of the main risks of these considerations: to justify that law and rights are not needed or to create “separate rights” or privileges10. in other words, as stuart hall (2003) has already pointed out, it is important to discern the features that create identities from those that do not, bearing in mind that a historiography of rights shows how the social stratification of individuals has been strongly based on gender and race. the point, then, is to discern how the law may take them into account, and combat these oppressions, becoming the rights the appropriate instrument to do so. and this should be considered when asylum claims are examined. 6. revisiting the notion of power: butler's contributions according to butler (2004), law and legal actors use (legal and sometimes nonlegal) categories presumed to be neutral or beyond any content of power. at least they do not question their content, but the use of these categories gives meanings and imposes norms or characters to identities (although not exclusively) of individuals (butler, 2004: 23 and following). hence those who hold positions of power or have the capability to decide are those who regulates the content and meaning of the identities, as pointed out by mackinnon or young. in short, categories and discourses are situated in the political sphere, what characterizes them in a similar sense to brah's politics of location (2011: 247). butler observes that the conformation of the subject is relational because we build ourselves (and this means our identities) from a “constitutive outside”, what also identify us adding that we are not11. this process of construction provides some relevant points to revise the idea of the subject. so, we define ourselves not only with the traits that determine 10 in this regard, the committee on the elimination of racial discrimination asserts in its general comment nº 32 on the meaning and scope of special measures in the international convention on the elimination of all forms racial discrimination (cerd/c/gc/32) paragraph 26, that “article 1, paragraph 4, provides for limitations on the employment of special measures by states parties. the first limitation is that the measures “should not lead to the maintenance of separate rights for different racial groups”. this provision is narrowly drawn to refer to “racial groups” and calls to mind the practice of apartheid referred to in article 3 of the convention, which was imposed by the authorities of the state, and to practices of segregation referred to in that article and in the preamble to the convention. the notion of inadmissible “separate rights” must be distinguished from rights accepted and recognized by the international community to secure the existence and identity of groups such as minorities, indigenous peoples and other categories of person whose rights are similarly accepted and recognized within the framework of universal human rights.” 11 this process is carried out through performativity as a mechanism of creation of identities is reiterated in a specific context. martínez prado points out that “the butlerian conception understands that the norms, as a condition of possibility of the subjects, require to be reproduced and it is that same process of reiteration that enables the possibility of the interval, as excess and eventually also as possibility of transformation. we are constituted through social norms that restrict and condition our status as “subjects”, although it is the very performativity of the norms, in terms of iterability, that can enable a break with the terms of established a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 252 us, but also by those we cannot give a complete meaning because it depends on that other called “constitutive outside”, meaning that our traits are constructed rejecting the traits and meanings that the other (different from me) shares / has. for instance, sexuality or gender are categories whose meaning is constructed by the content of the specific sexual or gender identity shared, but also what they hide: because one sexuality or gender does not necessarily have the same meaning for everyone, and because they are meant by what they are for the other(s) and what they are not (butler, 2004: 24). in other words, a heterosexual person perceives him/herself with those traits that the homosexual or non-heterosexual subject conceives as heterosexual, but also with those that homosexuals reject because they are socially considered as heterosexual. hence, it situates us in a collective level and as predefined and delimited subjects (butler, 2004: 24). this is relevant in order to examine how the sexual orientation or gender identity may be verified through self-constructed narratives at the asylum determination proceedings. in fact, asylum seeker must fit into the category that national laws and the asylum agent consider as homosexual or transgender, denying a priori the diversity of experiences and their interaction with other dimensions. butler explains that political (or legal) aspirations do not obviate the fact that the "we" located always in a concrete place and time from which we enunciate discourses or pronounce ourselves is constituted in a relational way. in our opinion, butler does not maintain an absolute rejection of autonomy or agency as the axis from which to articulate political discourse, although sometimes her idea of the performativity of gender has led her to this conclusion. in this regard, she asserts that the vindication of women's rights, even with an emancipatory aim, re/produces gender identities, but when she discusses a possible right to gender self-determination (butler, 1999), she finally admits it is possible to appeal to agency to claim rights. she argues this category allows to address how gay people experience sexuality, the gender identity or expression of trans people, and also the absence of any medical intervention not required by intersex people (butler, 2017)12. this approach entails a kind of resistance and a vindication that the law may admit (álvarez, 2017b), because these issues have been excluded and expelled from the law due to heteronormativity. the reason, then, to accept it is that it confers a legal meaning and value to these claims (butler, 2017). likewise, and in connection with mohanty's theses (2003; 2008), butler remembers that, even when universalist claims are based on the protection of agency or autonomy, each person has differentiated modes of meaning it since we constructed our identity in a fixed or at least contextualized way (butler, 2004: 47). this may explain why there are some asylum claims in which there is no mention to sexual orientation although the persecution is based on having intercourse with another man (millbank, 2009). precisely, the rejection of the asylum seeker to identify himself as a gay is due recognizability. for a framework to become hegemonic it must circulate, that is to say, it must be reiterated through space and time, move and break with the context that gave it origin” (martínez prado, 2015: 331) 12 the current debates on an admission of the right of self-determination have moved in this direction. in fact, there are already various laws according to which it is possible to motivate a registry rectification of a change in gender identity according to the will of the individual or alleging a concrete gender expression. similarly, the admissibility of self-determination for gender identity is raised in the case law of the european court of human rights. victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 253 to share a different notion of homosexuality (for him to be homosexual may mean to have an intimate relationship). that is why the contexts should be reflected on the claim somehow. although this does not deny the concurrence of a ground, this reasoning explains that the eligibility or not of the status should never depends on identity issues, a fortiori, neither in case of refugee claims based on lgtbiq issues. this is why i consider relevant to bring in here the decolonial theory. 7. displacements and the return to knowledge/power: the decolonial theory we talk about decolonial and not post-colonial theories following the theoretical and political position of the first authors. differences lie in the fact that postcolonial studies are those carried out by professors originally from communities "colonized" by the united kingdom or france (mostly in asia and africa), working at european universities, who criticized the processes of colonization from the 17th and 18th centuries onwards. on the contrary, the decolonial studies arise confronted with the previous ones and the difference between both, according to galceran, "would be not only in the geographic and cultural scope of reference, but in the use of critical categories in relation to the dominant thought arisen from the experience of subalternity, as well as the thematization of the place that occupies that production of the speech in globalized capitalism" (galceran, 2016: 57). this relevant differentiation seems to include the context of the subjects as well as the meaning and sense of the categories and, therefore, the located knowledge. as said before, in line with the decolonial theory, the content of the categories is given by and from the global north; this is, these categories are originated here and their historical-social and the epistemological evolutions take place from there/here. in a similar way as the (universal) subject is revealed as male-centered from the first feminist theories, now we need to focus on the race and location placed in this global north. here we suggest the adoption of an intersectional approach that includes decoloniality for cases in which the relations between territories and those who occupy them are based on relations of coloniality in a broad sense. the decolonial theories explain and examine the raciality of the epistemologies and ontologies constructed from the west (martinez, 2019: 188-189), as well as the political character of the structures before mentioned. regarding this, their proposal is "to recover concepts such as system-world, center-periphery, geopolitics and eurocentrism to, from there, advance in the problematization of modernity as a material and symbolic process that cannot be thought outside its relation with political, cultural, economic and epistemic practices that resulted in the conformation of a world-wide cartography that reserved unequal places for different countries, regions and populations. this question leads to look at modernity from its constitutive violence" (soria, 2015: 69). this entails observing modernity and the present taking into account the (sociohistorical, we can add) process of conformation and extending the object of study, as much in relation to the elements to examine as to the spatial and temporal scope. the context cannot be reduced only to the present moment, what makes extremely complicated to propose a pacific integration of this approach at the law. a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 254 this dynamic and contextualized analysis of current socio-legal realities allow us to interpret these with an explanatory and political aim. for instance, this may provide a more accurate understanding of current migratory flows and displacements, including the categories of gender or sexuality, which have a strong colonial component. likewise, the characteristics and orientations of migratory flows and displacements are partly explained by the whole relations between societies. for instance, this wide examination helps to understand why companies that carry out their activities in previously colonized countries come from colonizing countries (de sousa santos, 2019), which many times commercialize and exhaust natural resources. most of these theories question western emancipatory projects claiming that “humanity” has been a concept whose content was initially held or represented by the colonizers, while the colonized peoples were classified as uncivilized races (lugones, 2010: 744). in clear connection with the butler’s “constitutive outside”, decolonial studies assert that since the late fifteenth century an idea of humanity is built excluding the colonized communities imposing also a system of global colonial domination and/or capitalist and modern power (quijano, 1995). the “abysmal line”, in terms of de sousa santos (2010), or the “colonial power matrix”, according to mignolo (2000), are fixed by excluding people from the emancipatory of the liberal project and this has been also the reason to question the universality of human rights (arías marín, 2013). this same line defined the capacity and the situations of power to consolidate a privileged position (or hegemony) of the epistemologies emerged in the global north in front of the indigenous epistemologies, like happened regarding the orality compared to the writing (madlingozi, 2019: 254). in short, this process has configured the political, legal and economic organization, and also the inter-subjective relations and the production of knowledge, which reminds us of foucault’s theses. hence some authors prefer to speak of coloniality and to distinguish it from colonialism, circumscribed to the first dimensions (maldonado-torres, 2007: 243; soria, 2015: 70). in this sense, the decolonial theories explain how the categories and identities have been constructed from the coloniality of knowledge, devaluing and suppressing the production of meanings, symbolic universes and even the different subjectivities (quijano, 2000: 540-541). so, we refer to this theoretical framework because it not only introduces categories relative to the subjects and the identities, but it serves to explain how it introduces another dualism that has determined and configured the western reality and, therefore, almost universal: the binomial woman/man. this is, the consolidation of gender as a feature, a category or an axis on which meanings, spaces, times and values are attributed to each one of them. this colonial line or of coloniality constituted therefore a line of dehumanization of the "discovered" places at the same time that it became also a line of color, when racializing the subjects (maldonado-torres, 2019: 94; quijano, 2000: 535). fanon explains this through his phenomenology of the body and how black bodies were not (ontologically speaking), because the notion and category of the body was that of white bodies. that is, "for black men, consciousness of the body is a third-person consciousness and the feeling is that of denial" (fanon, 1986: 110). again, racialization serves to neutralize and victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 255 universalize the characteristics of the one who holds power, even if it refers to the faculty of definition and/or production of knowledge (butler, 2017: 79-81). what is still lacking from a further accomplishment is the implementation of the intersectional approach of race and gender in decolonial studies. 8. the (de)coloniality of gender: anzaldúa, lugones and spivak i have previously pointed out that gender coloniality was consolidated along the process of colonization and coloniality. this means that gender is introduced as a category and as a signifier from the colonizing global north. this theoretical framework is relevant because it becomes the original matrix on which the rest of the structures and axes of identity are built. we can say that "the man-woman binomial is not only one amongst many, but it is the only one that crosses over and makes possible the establishment of the others, by providing them with the very matrix of the difference of the binary logic and the respective hierarchical value code. (...) it is important to remember that neither the transformations in the gender power relations nor the displacements of the colonial line undid the sexed logic in which the production of civilizing abysses is based, including the one that sustains the own definition of the west and all a european liberal norm that expanded globally" (martins, 2019: 495). i reiterate, since then gender is constitutive and the origin of structures, relations and identities (mendoza, 2019). for this reason, the decoloniality process must start deconstructing this binary logic and the code of hierarchical values. a fortiori, because the decoloniality of gender also allows a global critique of the heteronormative racialized capitalist oppression generated from its roots, as argued by anzaldúa (2016), tamale (2011) and lugones (2010). from this location, it is possible to identify and resort to the intersectionality of the different and complex systems of oppression, but it is necessary to take into account spivak's warning, who recalled that subalternity has affected women more intensely, also modifying the meaning of some axes such as raciality (spivak, 2011: 70). it is not possible then to perpetuate or maintain relationships of inequality towards the positions of subalternity, as happens when the position of subject is denied to women when white men protect darkskinned women from dark-skinned men (spivak, 2011: 77). in this regard, it is appropriate to recall the legal reasonings in cases of sexual violence in rwanda and the former yugoslavia13. if the arguments of both courts regarding the consideration of these acts as crimes of genocide or crimes against humanity are examined, it is possible to find aspects of these relationships. the judicial proceedings opened then were the first to prosecute these conducts, so their determination was solved by interpreting them with criteria from national systems where this decolonial view has generally been lacking. in this sense, mackinnon's distinction on how to understand rape or sexual violence in a broad sense whether a sexual or a coercive act is an example 13 before the international criminal court was even established, the international criminal court for the former yugoslavia and the international criminal court for rwanda issued case law on the so-called “gender crimes”, whose principles and interpretations was lately assumed by the international jurisprudence, also by the icc (mackinnon, 2006c). a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 256 of rethinking meanings and categories. if it is sexual, it requires a finding of absence of consent. conversely, it is irrelevant if the environment is presumed to be so coercive per se as well as to invalidate it. as mackinnon points out, the initial jurisprudence that assumes this second position presumes a relationship of inequality such that it prevents women from making decisions about their sexuality, despite the fact that this was one of the struggles of the feminist movements shortly before in the united states and europe. so that, this perception criminalizes any consensual intercourse between a woman and a man from opposing communities, denies sexual autonomy and imposes a position of subordination on women in a given social community (mackinnon, 2006c: 950-954). these same considerations may apply to refugees, whose protection can never be motivated by paternalistic and ethnocentric notions of vulnerability far from the human rights approach (tamale, 2011; anzaldúa, 2016). it is possible to identify a trend in this direction when temporary protection has been set up for displaced persons who have fled their countries for reasons that did not exactly match to the requirements of asylum, which has not been equated with it, and this rather arises and consolidates a lower content, i.e., the license or authorization of temporary residence on humanitarian grounds. although no international obligation is breached by providing this temporary and secondary protection, this has been the protection initially granted to cases where protection was sought for gender-related grounds in our system (parella, 2003). asylum claims based on sexual orientation and gender identity have faced similar obstacles. however, there are certain peculiarities in this regard that justify reminding these theoretical frameworks. if we think about the asylum system, these claims share the private or intimate nature of religious beliefs or political ideas, while are also closer to those related to gender, being this in all of them the foundational axis from which societies are built (anzaldúa, 2016). likewise, those categories (connected and derived from gender) were created in the west and imposed by ignoring the pre-existing sex-affective and gender diversity in colonized communities, which has caused their rejection today by being identified with the imposed culture (tamale, 2011). finally, due to the characteristics of the asylum procedure and the requirement of a self-referenced narrative, agents often examine claims with western criteria or standards that are different from those experienced by refugees. for example, being homosexual has been identified with an specific behavior or expressions (that can hardly be) universal, such as requiring knowledge of the way homosexuals live in big cities or their leisure, which reveals standards related to social class, gender and national origin (millbank, 2009). probably, the essential challenge continues to be to articulate legal measures or tools that allow us to start from the social relations and structures that shape and have shaped us, and instruments that make it possible to identify the contexts, positions and axes that cross. in any case, these theoretical frameworks give already the mains clues to think about it and being aware of these complex identities. victor merino-sancho the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 257 9. can we build a self-narrative? so far, the decolonial theories may be useful to initiate a process of rewriting or rethinking the communities and subjects before excluded, as well as those categories on which the legal discourse is constructed. a process of decentralization and recontextualization of the subject begins from the mignolo’s so-called "praxis of decoloniality” (mignolo, 2011: 90). in order to carry out this decentralization, which implies fighting the exclusion and absence of the colonized subjects, new perspectives, senses and meanings coming from these communities are integrated. in other words, subjects are contextualized, allowing the process of resignification to take place from excluded spaces and epistemologies, thus altering the relations of domination built on gender, race and sexuality, amongst others. this is the project that law should recover: to be oriented towards social change without creating subalternities. it is therefore necessary to discern whether other frameworks or conceptions are possible to justify a political and legal project of recognition of rights beyond the individual or that assumes the complex character of contextualized subjects, abolishing the complex relations of domination. butler (2004; 2017) suggests this with her notion of vulnerability as an ontological marker; all human beings are vulnerable and this vulnerability makes us unique as a species. politically and normatively, this approach seeks the radicalization of democracy based on the recognition and re-evaluation of our shared and generalized condition in terms of equality, making possible "an overcoming of the emancipatory universal figures that are sustained on identity categories" (martínez prado, 2015: 333). we believe that this may be one of the reasons why the mechanisms of emancipation that are sought must start from the intersectional approach and bring together the struggles that we have referred to, being aware of the history or contextualization of the categories in which we find our possibilities of action (álvarez, 2017a). identity also sexual or gender identity is the result of a process in constant construction, which can hardly be required and proved in legal proceedings. firstly, because there is no authenticity in these terms, nor the possibility of proving it, nor is it a sufficient or unique criterion to conform it. secondly, because it is a subjective experience that depends on the social contexts in which we build ourselves and that can be resignified according to the displacements, the deterritorialities we face, and the personal development projects we initiate or go through. it is important, then, to ensure an effective protection of the shared vulnerability and to confront the oppressions of the subaltern subjects, as part of this ecology of the postabyssal dignities (de sousa santos, 2019: 37). with this scenario, it should be possible to rethink law and rights as mechanisms of protection, as well as to strengthen the instruments from which to increase the agency and autonomy of subjects vis-à-vis those in power. here is where human rights should be invoked. if one of the criticisms raised by the decolonial framework aims to avoid the quasi-natural or automatic identification of certain practices with an identity or culture (tamale, 2011), as far as the asylum system is concerned, the assessment of the accounts must be limited to the situation of lack of protection due to the inability or a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 258 reluctance of national authorities to do so. the fact that the subject's lack of protection is proved implies that this individual is outside the socio-normative context and the legal community. until now, sexual and gender diversity have been considered as other motives for persecution related to the membership on a particular social group clause, without taking into account the characteristics of each one. it should be noted that this is not usually a visible trait (as race or sex are), nor are they traits or characteristics externally recognizable, such as affiliation to political movements, ideologies or religious beliefs. it is therefore an initially individual characteristic or feature that must be revealed, what is difficult to fit into current evidentiary systems. for this reason, it is appropriate to contrast the current regime with a procedure in which the reason for persecution is not as relevant as the acts of persecution and lack of protection. likewise, in order to prevent the recurrence of exclusions from certain experiences, it is appropriate to recall human rights as standards or paradigm. such a change in the perception of rights violations may justify other movements being granted asylum protection on a permanent basis. for example, the case of climate migration. without aiming to be exhaustive, some reasons have been given to question a procedure and a regime designed in categories constructed from a complex context full of unequal relations and subjects in very different positions. with these coordinates, convenient for other similar cases, it is possible to guide the right to action, and the action cannot be other than to promote an effective protection of rights. and this protection cannot be reduced or have only a remedial character, but it should also be oriented towards the elimination of power relations in order to recover a genuine emancipatory sense. references álvarez medina, s. 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(2017) michel foucault: poder, saber y subjetivación, madrid: alianza editorial. soria, s. (2015) “sujeto y alteridad. problemas y desplzamientos desde una perspectiva decolonial”, in biset, e, et al., avellaneda (ed.) sujeto, una categoría en disputa, madrid: la cebra, pp. 65-97. spivak, g. (2011) ¿puede hablar el subalterno?, buenos aires: el cuenco de plata. https://doi.org/10.2307/j.ctv125jqbw https://doi.org/10.1093/ijrl/een040 https://doi.org/10.1215/9780822384649-002 https://doi.org/10.1215/9780822384649-002 https://doi.org/10.2307/j.ctv1220hbk.16 https://doi.org/10.1177/0268580900015002005 a cartography of critical legal theories: notes for a reflection on the relation between law and power the age of human rights journal, 16 (june 2021) pp. 242-262 issn: 2340-9592 doi: 10.17561/tahrj.v16.6040 262 tamale, s. (2011) “researching and theorising sexualities in africa”, in s. tamale (ed.) african sexualities. a reader, nairobi: pambazuka press, pp. 11-26. weeks, j. (2007) “discourse, desire and sexual deviance: some problems in a history of homosexuality”, in parker, r. & aggleton, p. (eds) culture, society and sexuality. a reader, new york: routledge, 2nd edition, pp. 125-149. wriggings, j. (1996) “rape, racism, and the law”, in weisberg, d. kelly (ed.) applications of feminist legal theory to women’s lives. sex, violence, work, and reproduction. philadelphia: temple university press, pp. 495–510. young, i.m. (2000a) inclusion & democracy, oxford: oxford university press. young, i.m. (2000b) la justicia y la política de la diferencia, valencia: cátedra, feminismos. received: october 23rd 2020 accepted: december 9th 2020 a cartography of critical legal theories abstract 1. introduction 2. individuality vs. contextualization 3. the dual vision of law: power according to foucault 4. law and power from critical feminist currents: domination and oppression in mackinnon and youn 5. the complexity of social structures: intersectionality in crenshaw 6. revisiting the notion of power: butler's contributions 7. displacements and the return to knowledge/power: the decolonial theory 8. the (de)coloniality of gender: anzaldúa, lugones and spivak 9. can we build a self-narrative? references fifteen years of right to information act in india: a long way to go the age of human rights journal, 17 (december 2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 346 fifteen years of right to information act in india: a long way to go pushpraj singh1 abstract: the passing & enactment of right to information act, 2005 in india has been rightly considered as a milestone in the evolution of indian parliamentary democracy which attempted to ensure transparency & good governance at the grass root levels by making the public authorities accountable & responsible. this act liberated the harassed commoners who now had a very potent weapon to seek information which had hitherto remained suppressed in the dusty files of babus (bureaucrats) under the garb of official secrecy & confidentiality. however, in spite of many initial success stories over a period of time this right to information act has been losing its effectiveness & potency as it has failed to adopt the dynamism of complex socio-political realities. this paper attempts to give an overview & explain the history of rti in india, its present status, limitations/drawbacks /challenges & and suggests some remedial measures to ensure its relevance in the rapidly transforming geo political context. keywords: right to information, good governance, parliamentary democracy, transparency, information, public authority summary: 1. introduction. 2. history of right to information. 2.1. what is the right to information and why it’s needed? 2.2. what does the term “information” mean? 2.3. what does right to information mean? 3. procedure for obtaining information. 3.1. public information officer obligations. 3.2. in which cases information cannot be obtained. 3.3. right to information amendment bill – 2019. 3.4. importance of right to information. 4. current status of rti act 2005. 5. the shadow of covid-19 on the rti regime in india. 6. challenges before the rti act. 7. conclusion & recommendations. 1. introduction the right to information act came into force all over india except jammu and kashmir on october 12, 2005, after getting permission from the president on 15 june 2005. (rti act, 2005a, govt of india). but as soon as the union territory of jammu and kashmir was formed on 31 october 2019, this law also came into force in jammu and kashmir. it’s a different matter altogether that j & k already had a slightly better rti act than rti act 2005 made for the rest of the country. under its own act, the j & k had its own state information commission, which was lost in after october 2019 and became one subject of one central information commissioner, and made the people to approach cic in new delhi instead of state information commissioner in srinagar or jammu. (rti act, j&k, 2009). the first rti application was filed in pune police station on 12 october 2005 by a person named shahid raza. (dopt, govt of india, 2015). prior to this, freedom of information bill was passed in the year 2002 but due to some reasons it could not be implemented. (foi act 2002, govt of india). this law was repealed as soon as the right to information act 2005 came into force. the right to information is also given as a 1 associate professor of history, amity university, noida, india (psingh15@amity.edu) mailto:psingh15@amity.edu pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 347 fundamental right as per section 19 (1) a of part 3 of the constitution of india. (ministry of external affairs, 2021). 2. history of right to information the official secrets act 1923 was enacted during the british rule over india. under this law, the government can keep all state information confidential. (legislative department, goi, 1923). after independence, no new law was made, no amendment was made in it. taking advantage of sections 5 and 6 of this act, the government kept hiding all the necessary information from the public. in international context, the first right to information law in the world came into force in 1766 (freedom of press act of 1766) in sweden. (sweden, 2016). sweden passed the first foi law in 1766.this statute, entitled freedom-of-press and the right-of-access to public records act enacted 23 years before the u.s. revolution and 13 years before the french revolution. the principal sponsor of this law, clergyman and congressman anders chydenius, had been inspired by chinese practice. according to chydenius, china was "the model country of the freedom the press" and set the example for other nations to follow. this scholarpolitician also admired the chinese institution of the imperial censorate, which was "an institution founded in humanist confucian philosophy [whose] main roles were to scrutinize the government and its officials to expose misgovernance, bureaucratic inefficiencies, and official corruption. “he was particularly impressed by the fact that chinese emperors were expected to "admit their own imperfection as a proof their love of the truth and in fear of ignorance and darkness." the origins of government accountability are not in the west, but in the east at the point of the ch'ing dynasty. (ballesteros, winter 2006). in 1946, the united nations general assembly recognised that "freedom of information is a fundamental human right and the yardstick for all freedoms to which the united nations is consecrated" soon after, the right to information was given international legal status when it was enshrined in article 19 of the international covenant on civil and political rights which states: "everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. (padalia, 2013) in indian context section 76, evidence act, 1872 is the first statutory provision for access to public records but unfortunately it remained unimplemented and unknown provision of law for more than 150 years. according to the provisions of this act “ every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. every public officer having the custody of a public document, which fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 348 any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies." (legislative department, goi, 2021). courts play a more significant role in india, the poster child of rti activism. the indian supreme court ruled as early as 1982 that a positive right to information was implicit in the right to free speech in art.19(1)(a) of the constitution. hence, disclosure of information about the functioning of government had to be the rule and secrecy the exception “justified only where the strictest requirement of public interest so demands”. in practice, however, the fundamental right to information, judicially decreed from above, lay largely dormant until it met with a wave of activism from below. (riegner, 2017) consciousness about the right to information in india was first awakened in the 1975 uttar pradesh vs raj narayan case. (the state of uttar pradesh v. raj narain, 1975). right to information remained in the headlines even further. in the indian express newspaper v. union of india 1985 case, the supreme court remarked that citizens have the right to know about the information related to the operation of the government. (indian express newspapers v. union of india & others, 1984). apart from this supreme court of india made multiple passing references & comments regarding the right to information. but a strong movement for the right to information was needed in india and this leadership was achieved in rajasthan through aruna roy and nikhil dey. the movement 'hamara paisa hamari hisab' by them further strengthened the right to information. (news, 2015). he formed the mazdoor kisan shakti sangathan. the rajasthan government finally passed the right to information on 26 january 2001. (dharanesha, 2015). the first right to information act was enacted by the state of tamil nadu in india in may1997. universal access to information is celebrated on 28 september worldwide. right to information day is observed every year in india on 12 october. 2.1. what is the right to information and why it’s needed? it must first be recognised that almost any enumeration of desirable rights usually lists the importance of the right to information, the right to know, or some such related formulation. there is a perceptible lack of excitement about the value of this entitlement, however. it is invoked dutifully rather than passionately. the right to information has an undeniably old-fashioned ring to it. it is, to use the jargon, a 'first-generation' civilpolitical right, one which elaborates, but does not appear to redefine, the individual citizen's relationship to the state. (goetz, 1999). an educated citizen of the republic of india expects transparency of information which essentially obliges the government to prevent corruption and make the government accountable for their actions. the disclosure of the necessary information will provide pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 349 other public interest in which it will be possible for governments to operate efficiently, maximum utilization of limited state resources will be possible. therefore, for the receipt of all these provisions, arrangements were made to provide information to the individuals so that the interested person could get the necessary information. a provision has been made to constitute a central information commission under section 12 of this act, which is a controlling organization. overall, the right to information reinforces the concept of good governance. (rti act, govt of india, 2005b). 2.2. what does the term “information” mean? information is related to records, documents, e-mails, memoranda, opinions, advice, press releases, circulars, orders, logbooks, tender samples, samples, papers, models, data held in any electronic form in the information under the act. any information relating to a private body which is required by any law to a public officer shall be included in the information. information records will also include a file, a microfilm, xerox copy. (rti act, govt of india, 2005c) 2.3. what does right to information mean? information by right to information, which is under the control of a public authority, is to be made available to the person sought. providing information includes work, documents, documents, inspection of records, records and comments related to records, certified copy. if the information is stored in the computer, then the information through which electronic means are involved comes in the right of the person. 3. procedure for obtaining information the person receiving the information has to apply to the central public information officer or state public information officer in writing or through the rti online portal to get the information. he also has to pay the fees related to the application, which is currently set at ₹ 10 by the central government. there may be some changes in this by the state government. no fee is payable for a person belonging to bpl (below poverty line) family. if after receiving the information, a person feels that the information has not been provided correctly or refused to give the information, then he can go to the first appeal. an officer one rank above the information officer is considered an officer of the first appeal. 3.1. public information officer obligations public information officer has to give the information within 30 days from the date of receiving the application. if he is unable to do so or refuses to take the application, the responsible information officer will be charged a fine of rs 250 per day and the total fine will not exceed 25,000 and he will also have to provide the information later. if any rti, which is directly related to lifesaving, has to give information within 48 hours. if the public information officer realizes that the information sought is not related to his department, then it is his duty to send that application to the concerned department and fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 350 also inform the applicant about it. in such a situation, the period of receiving information increases from 30 days to 35 days. 3.2. in which cases information cannot be obtained (barowalia, 2012) 1. according to section 8 of the right to information act 2005, information cannot be obtained in the following cases: 2. information that relates to the sovereignty, integrity, security of the state and foreign policy of india. 3. information whose disclosure is prohibited by the court or any agency. 4. any information that relates to trade secrecy, intellectual property and there is a possibility of deteriorating the business condition of a person. 5. any information which has been received by the government of india in the belief of any other country outside india. 6. information that threatens the life and safety of a person. 7. information that obstructs the investigation or capture of criminals. 8. cabinet discussion papers. 9. under section 9, the public information officer can cancel the application for lack of access to information. 3.3. right to information amendment bill 2019 the right to information amendment bill 2019 introduced in the lok sabha from 22 july 2019, was introduced by minister of state for personnel, public grievances and pensions jitendra singh. important amendments made in this are (bureau, 2019) tenure of information commissioner the tenure of the chief information commissioner and information commissioner, respectively, at the national and state levels described in section 16 of the right to information act 2005 was fixed for 5 years, but by this amendment their tenure will be determined by the central government. pay cut it has been determined by amendment that if the chief information commissioner and information commissioner are receiving any pension at the time of appointment or taking any retirement benefits for previous government services, then the same amount will be reduced from their salary. section 13 of the right to information act 2005 was also amended, stipulating that the salary, allowances, employment conditions of the national and state level information commissioners would all be determined by the central government. 3.4. importance of right to information 1. it can help prevent corruption through rti. any government official will consider once before doing any corrupt work for fear of going out of information. pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 351 2. the rti makes government institutions and government accountable to the common man. 3. one can ensure the constitutional right of a person through rti. 4. transparency of information increases through information on the functioning of government, policies, schemes, etc. 5. the rti works to bridge the gap between the government and the common man. 6. the government offices which are acting negligently also serves to present the image of the society. 7. whether the tax paid by the citizens is being used by the government or not can also be ascertained. access to official information held by public authorities is the touchstone of a strong and efficient representative democracy. by making maximum disclosure of information in the public domain a rule and secrecy an exception, any country can progress as a strong society of informed citizenry which, as thomas jefferson famously said, is the bulwark of a democracy. the importance of 'right to information as a basic human right' cannot be negated as a potent tool to supplement the 'concept of checks and balances', to promote transparency and openness in the governance process by infusing a sense of greater accountability (jain, 2012). globally, governance based on freedom of information is evolving from a moral indictment of secrecy to a tool for market regulation, efficient governing structure facilitating economic and technological growth. "in a government of responsibility like ours where the agents of the public must be responsible for their conduct there can be but a few secrets. the people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. they are entitled to know the particulars of every public transaction in all its bearings. " supreme court in state of up v raj narain in 1975 (padalia, 2013). 4. current status of rti act 2005 a record 12.3 lakh rti applications were filed in 2017-18 with 96 per cent of them being responded to by government offices, making it the best performing year since the law was enacted in 2005, the central information commission data shows. the data from the latest cic annual report, shared by the ministry of personnel, public grievances and pensions thursday, shows that during 2017-18, 12.33 lakh rti applications were received by the registered central public authorities (pas) (indian express, 2019a). “this is higher by 3,17,458 or 26 per cent than what was reported during 2016-17. the central pas rejected 4 per cent (63,206) of the rti applications processed during 2017-18 showing a downward trend in rejections which have come down by 2.59 per cent from the 6.59 per cent reported in 2016-17,” it said. (indian express, 2019b). the four per cent rejection rate is the lowest since 2005 when the rti act was enacted by parliament giving people the right get information from government offices on a payment of rs 10. union home and finance ministries which commonly get queries fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 352 on burning topics like black money, demonetisation, big loan defaulters, security issues, policies and other routine administrative matters, led the list of public authorities in terms of rejection rate. the home ministry rejected 8,784 applications which is 15.16 per cent of total 57,951 received by it while the finance ministry rejected 28,145 applications, which is 14.08 per cent of total 1,99,923 rti applications received by it, the data showed. the public authorities used exemptions provided under section 8, section 9, section 11 and section 24 of the rti act to reject plea for information. thirty-two per cent of applications were rejected citing other reasons. (indian express, 3 january 2019c). according to a report by transparency international india, only 24 out of 155 posts of information commissioner both at the central and state level are vacant, whereas as in 2018, 48 out 156 posts had been reported vacant. at the same time, there are “only seven women information commissioners in india which is approximately 4.5% of total sanctioned post," the report states. according to the report, “15, 578 cases in penalty imposed on public authorities by state information commissions (excluding union government) during 2005-06 to 2018-19" however, the report also highlights that only five information commissions maintain data on cases of threats and harassments, whereas 24 of the commissions (excluding jammu and kashmir) do not maintain the very data on the same. (mint, 2019a). likewise, while more than 3.02 crore rti applications — which amounts to just 2.25% of citizens — had been filed, the cic has received 78.93 lakh applications. the states that received maximum applications were maharashtra, tamil nadu, karnataka and kerala. west bengal received less than one lakh applications. of the applications filed, less than 45 per cent received the information they had sought, according to the ‘report card of information commissions in india, 2018-19’ released by the satark nagrik sangathan (ssn) and the centre for equity studies (ces). but of the 55 per cent who didn’t receive the information, less than 10 per cent filed appeals. (mint, 2019b). it doesn’t help that the chief information commission (cic) and the state information commissions (sics) have an unwritten rule about not penalising erring public information officers for their failure to respond to rti applications properly and in time. and then there is the matter of huge backlog. the ‘report card’ revealed that as of 31 march 2019, there were 2.18 lakh appeals and complaints pending before the sics. the study added that it took an average of more than a year for most sics to dispose of complaints/appeals. while the sic of andhra pradesh would take 18 years to dispose of a complaint, west bengal sic would take seven years and five months. (ces, 2020). every day 4,800 applications are filed to access information from the government across india. the first decadal study conducted after right to information (rti) act implemented in october 2005 has revealed that over 1.75 crore applications have been filed with one-fourth being requests to the centre. (the print, 24th june, 2020). pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 353 a study conducted by commonwealth human rights initiative (chri), exclusively accessed by et, reveals that 27.2% (47.66 lakh) of the total rtis filed between 2005 and 2015 were to the different ministries and departments under the centre. maharashtra finishes a close second with 26.40% (46.26 lakh) of the applications being submitted in the same time period. karnataka government received 11.83% (20.73 lakh) applications. the top three – centre, maharashtra and karnataka government received two-thirds or 65.43% of the rti applications filed by indians in the last 10 years. (economic times, 2016). the data attains significance as there is no official record of the total number of rti applications received in india even as rti act enters its 16th year of implementation. the study conducted by chri’s sneha chandna reveals that southern states account for a quarter of rtis received. karnataka, andhra pradesh, tamil nadu and kerala received almost a quarter 24.90% of the rti applications submitted across the country. the study also points to less frequent use of rti act by the north-eastern states. while meghalaya received 11,092 requests in 2005-15 nagaland government received 16,009 requests. (economic times, 2016). the study points out (economic times, 2016) that the actual number of rti applications could be higher since many public authorities do not report their annual compliance, the number of applications filed with them does not get accounted for, nayak explained, “under section 25 of rti act, all public authorities under centre and state governments are required to submit annual status of implementation to information commissions. but compliance with the statutory requirement has been poor. also, the information, the information commissions follow disparate cycles of annual reporting – some follow calendar year and some adopt the financial year reporting cycle.” the study has found that basic responsibilities of publishing annual reports and having functional websites are not followed by the state commissions. four state information commissions – madhya pradesh, manipur, tripura and uttar pradesh – have not published any annual report on their website. information commissions of assam and arunachal pradesh have been reporting state statistics erratically. the information commission of goa does not have a functional website, the study reports. if you find a law uncomfortable, even one that you supported & passed, what should you do? repealing it would not be politically smart; amending or diluting it will give ammunition to your critics. so the best strategy is to strangulate it, softly and steadily, until it is rendered lifeless and ineffectual. some-thing like this is happening to the right to information act in india. yet, even as an increasing number of people turned to the rti for information, it was clear that for people in power, the law was an irritant. hence, even though the former united progressive alliance (upa) government initiated the law, its members, including fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 354 former prime minister manmohan singh, went on to make negative statements about it and government agencies dragged their feet as much as possible in responding to queries. the upa government also tried twice to dilute provisions in the law but backed down in the face of strong protests from citizen groups. the modi government is following a more devious strategy. it is not openly questioning the law, drafting amendments or finding other ways to dilute the actual provisions of the law; it is killing it through simple neglect. hence, since august 2014, no one had been appointed to the post of cic (chief information commissioner) for a considerable period of time. three posts for information commissioners also continued to lie vacant. this might not appear to be so important. yet, as former cic shailesh gandhi pointed out in an open letter to prime minister narendra modi, by delaying these appointments the government was rendering the law "dysfunctional." (epw editorial, 2015a,b). 5. the shadow of covid-19 on the rti regime in india covid-19 pandemic in the year 2020 has brought to the forefront several discrepancies and deficiencies within the information regime in india which has shook the strong foundation built by the rti act ever since 2005. data regarding the well-being measures for the migrant workers, total number of migrant workers, the number of workers affected by the pandemic etc.; data regarding ration and food grain distribution across districts; information about covid-19 treatment centres and regarding decision making process as to the acquirement of ppe kits and information regarding the actions taken against police personnel for their impunity against innocent citizens of the country during the pandemicall of this is missing in the public domain and efforts made to gain such information are also curbed. (transparecy international, 2020). the pandemic is the scapegoat for the failure of the information regime to function properly. during a pandemic that has created havoc not only in india but all around the world and that has put not only lives but livelihoods of people at stakeit becomes very important that information flow does not get hampered. the right to information act 2005 must continue to ensure accountability and empower citizens to seek information during these difficult times especially information regarding the crisis management. (str, 2020). instead of turning the citizens into passive consumers of information provided by press releases of respective government departments; advertisements; tv and newspaper reports etc. the rti act should have become a formidable weapon in the hands of the citizens to make sure that the transparency regime does not suffer a setback due to the covid-19 crisis. essential issues of public importance on which information must be readily made available to the public specifically if a rti has been filed, have been kept under the wraps by the government. instance of such escapist attitude can be seen in the refusal by the pmo to provide information regarding pm cares fund stating that it is not a public authority and the refusal of state bank of india on the premise that it is a third party in the matter. details regarding the public fund which is being used to manage the crisis are not being revealed to the public. pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 355 another phenomenon is that there has been a relative lackadaisical attitude of the authorities towards the information seekers as rtis are transferred from one public authority to another as was the case in the rti filed to get details of the list of covid-19 treatment facilities in the different districts. suo motu disclosures under the rti act have also been apathetically ignored by the authorities especially those related to health, migrant labourers, finances etc. instead of voluntarily publishing data on the website portals and providing as much as information as possible to the public regarding the true pictures of the covid-19 pandemic in indiathe authorities are utilizing all kinds of tactics to undermine the sovereignty and right to freedom of information of the citizens. the institutional establishments put in place to uphold the sanctity of the rti act in the form of central information commissions (cic) and state information commissions (sics) have proven to be a failure during the pandemic. though the cic has been operating; hearing cases through audio/video conferencing; conducting trainings/ webinars/conferences with various stakeholders regarding how to deal with the covid-19 situation; accepting appeals and complaints online and so on; but it has been rendered headless as the chief information commissioner retired in august 2020. the state information commissions of assam, bihar, goa, rajasthan and uttar pradesh were also headless. several sics did not work during the lockdown phase and had minimal staff members that were present at the office but no hearings were held like in haryana, rajasthan and uttarakhand sics; landline numbers of the sics and mobile numbers of many information commissioners and secretaries of sics were unavailable and websites of bihar, madhya pradesh and nagaland sics remained inactive during the pandemic. (transparency international-str, 2019). during pandemic video conferencing was being used a tool for hearings by cic and six sics; whereas the rest 22 sics had failed to resume their work and staffs of the sics are enjoying the paid leave despite many free platforms coupled with low cost data plans are available for digital connectivity. already backlog of cases has been an issue plaguing several of the sics and their being not functional during the times of crisis is just adding to the backlog. it is pertinent to mention that cic alone cannot take the burden of upholding the transparency regime in the country. the state information commissions which have a wider reach and capacity should have come to the rescue and heard matters of public importance on priority basis. these should have provided online facility to the public to put forth their grievances and get information which is a significant foundation of a democratic country like india. such low performance on the part of the information commissions and the dismal image of the information regime in india has not battered down the spirit of the citizens of the country especially the rti activists and rti users spread across the country. technology has been leveraged to bring together rti enthusiast across the country on online platforms to discuss and debate around the rti act; its implementation and future in the context of covid-19. it is hoped that the officials take inspiration from the undying fortitude of the citizens of the country and start taking their responsibilities fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 356 6. challenges before the rti act with the implementation of rti act, rti officers and activists are facing some challenges which include harassment and victimization. people have got the right to ask information from indian bureaucracy, but there is a strict lack of adequate protection and maintenance of records in the offices. the staff strength is insufficient for the adequate functioning of the rti and those who are appointed as rti officers also have to look after the daily work of their department. overall, the applicant is not sure whether he will get the information within 30 days. the government secrets act 1923 also becomes the main impediment to the transparency of information at times. social change has always aroused fear in the hearts of the well-to-do. today, the right to information is slowly but steadily moving towards success. the section which has enjoyed facilities from the old system has also been trying to end the sharpening of this act from the very beginning. with the attitude of some information commissioners, the possibility of this law being divided has also been strengthened. the persecution of the workers connected with the right to information is still going on and the central information commission, central and state government are unable to give full protection to those workers, needlessly avoiding being harassed. they do not have any policy / rules for this. even after waiting for several months, the information sought is not found or is incomplete and misleading. even after that, even if an applicant dares to go to the information commission, even then many commissioners do not take any action against the administration. the increasing incidents of attack on rti activists should not deter the public spirited persons who have taken upon themselves the task of being 'scavengers' to cleanse the dirt of corruption and malpractices in public administration system. the manner in which the amit jethgwa was shot dead by unidentified men near the gujarat high court in ahmedabad, is shocking. he fought against the illegal mining lobby in gir forests. his murder by the 'mining mafia' is a big loss to the rti movement. the question of protection of whistle blowers caught the nations' attention when satyendra dubey, engineer and project director, national high way authority of india (nhai), was killed in gaya, bihar, in 2003. the murder of manjunath shammugham, an indian oil corporation sales manager, for having exposed the mafia role in petrol adulteration, shook the nations' conscience and brought renewed focus on the need for a law to protect the whistle blowers (kamla, 2012). the situation is such that despite all efforts, we are still standing in the same place where many decades ago were standing. the sacrifices of revolutionaries are being made useless for which post-independence india was more important than independence. did the torture given to those revolutionaries not budge? can our oppression or any failure break our intentions, this question is standing before us today? workers associated with the right to information should be organized and agitated to use this right more strongly and its full empowerment. the country is ours, the government is also ours, so we all have the responsibility to keep our house clean. therefore, we must fully perform our duties to protect our authority. pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 357 there is a lot of uneasiness about this act among the people working in the old work culture, old thinking, administrative apathy and babushahi style (bureaucratic way), and such people (rti) are kept inside. due to this, 40 percent of the applicants did not get any information in 30 days. even if found, only 30 percent got the information and that too was wrong, incomplete or misleading. no such mechanism has been created in rti to know which applicant got information or not and neither the concerned department. the section fulfils the moral & legal responsibility of giving a copy of the reply to the information sought in the rti cell. there is a severe shortage of staff in the rti cell. under the rti, there seems to be a plethora of applicants, but the attitude of the administration to increase the number of employees is indifferent, which is serious and thoughtful. employees are not ready to come to the less lucrative seat of rti and employees who are also asking to come in this cell are not put here for various reasons. public information officers have a heavy workload. information officers have to look after their daily work as well as the work of rti and this double burden affects the work of rti. in most departments, there is no coordinator in the rti cell to ensure that the applicant has received further correct information within 30 days. will the administration / government sleep sometime or will it go on like this? 1. applicants are also struggling to submit the application under the right to information. 2. government officials are doing their bit arbitrary by not strictly following the law in the information commission. information is available even in small matters, but policy issues, big schemes or where there is a possibility of any corruption, then government officials keep silence. 3. the right to information is being disseminated only by voluntary organizations or by some activists. the government is not taking any responsibility for the promotion of this law on its behalf. the government is not taking any interest in promoting this right. for example, during 2008-09, print media was advertised for rs 109 crore and electronic media for rs 100 crore, but not one of them was for the right to information act 2005. 4. under this act, all government departments were appointed as public information officers, but information officers were not given necessary facilities. many departments have not even been given training about rti. room has also been made available to the rti cell at some places. 5. in the information commission too, there is a pile of cases like the courts. no case is being heard soon. in fact, in information commissions too, there are neither sufficient number of commissioners nor necessary facilities. 6. many tainted persons have also been made information commissioners / information officers. if they get a chance, they will destroy this law. 7. many information commissioners do not even know the normal process of justice. hearing of both the parties is necessary to do justice, but the commissioner summons only the applicant and completes the hearing within a few minutes. sometimes they even decide against the applicant. fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 358 7. conclusion & recommendations rti was required in the republic of india because there was a lack of coordination of information between the government and the public. if the government continues to present the information to the public from time to time, then there is no need for any person to get further information. public information portal of rajasthan is an excellent example of this. the chief justice of india was brought under its purview last year but some institutions are still out of rti. all political parties are out of its purview. in the coming time, some changes can also be seen in this law. this act is going to be a major contributor in the future as well in ensuring good governance and public participation. str 2020 published by transparency international india recommends the following strategy to make rti truly effective & potent -: technology-oriented regime building a culture of training enhancement of awareness other measures in this tech savvy world, use of innovative technology to disclose more and more information through the government websites across all platforms including vast mobile connectivity and mobile applications, in multiple languages will in itself make the system transparent. training and orientation of the government officials on rti act, rules and recent order/judgments will immensely add to the efficiency of their respective departments. a dedicated centre to give training to the pios and civil society will go a long way and will equip them with desired skills. lack of awareness among the stakeholders of the rti act, will prove detrimental to the objective of having a wide reach. whereas, including an introductory material of one or two page on the rti act in the curriculum can help in making the youth aware of the act, along with the citizenry as a whole. anonymous requests must be allowed as it will embolden even the insiders with a clean conscience to do their bit towards making the system clean. all refusals must be reasoned and appealable & time frame for the same should be reasonable enough. maximum disposal should be the rule with narrow and clearly defined exceptions. the exemption clause in the rti law, the expanding bureaucratic procedures that citizens must follow to actualize their right to information, and emergent modes of official communication and documentation that routinely frustrate disclosure, serve as those escape hatches; they prevent the transgression of the state-non state boundary and hierarchy, and keep the why and who of state power illegible. (sharma, 2013) effective and timely appeal procedures should be in place to deliver justice/ information in a time bound manner. moreover, provisions should be made in the act specifying that no reasons are required for seeking information from public authorities. recommendations: 1. preparing an effective legal & administrative framework which encourages free flow of information & stops undue victimization & harassment of information pushpraj singh the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 359 seekers. whistle blower’s protection act should be passed immediately. the supreme court as well as the three reports of the law commission have all stressed the need for an effective witness protection mechanism in the country. on 10th march 2015, the bombay high court directed the maharashtra government to finalize, within six months, a witness protection law that will bring whistle blowers & activists under its jurisdiction. the high court was hearing a suo moto petition regarding the murder of rti activist satish shetty in 2010. again, media reports recently gave details of an affidavit filled by the central vigilance commission in the supreme court of india showing that in the 3634 complaints filled with it from 207 to 2014, only 1063 were forwarded for action. more tellingly, 244 complaints filled by the whistle blowers of victimization & intimidation were ignored. (editorial, epw 2015) 2. information delayed is information denied. many a times information seekers get trapped in bureaucratic red tapism & supplying of information gets delayed on one pretext or the other defeating the very purpose of the act. even after waiting for several months, the information sought is not found or is incomplete and misleading. there is an urgent need of clearing the large pendency of applications & provisioning of additional tribunals with sufficient manpower to clear the backlog. 3. government needs to spearhead the awareness programme regarding right to information act. introducing a compulsory chapter on right to information act in school /college curriculum will be an effective & long term strategy to sensitize citizens regarding this important law. only cosmetic changes in this regard wont suffice instead the government of india needs to make its intentions clear & loud that they are in a favour of a comprehensive law on freedom of information & need to ensure that matching actions are taken in this regard so as to restore the faith of commoners and activists towards the relevance & potency of rti act 2005. 4. not all institutions are within the preview of rti act. all political parties are out of its purview. bringing all political parties under its ambit is a sure shot way of promoting transparency at the grass root levels. in a time of deep political polarisation, refusing to comply with the rti act seems to be one of the few issues that has united national parties across the ideological spectrum. despite a june 2013 ruling from the central information commission (cic) that they fall within the ambit of the transparency law, all political parties insist that they cannot be considered public authorities under the act. (jebaraj, march 21, 2019) 5. anonymous requests must be allowed as it will embolden even the insiders with a clean conscience to do their bit towards making the system clean. meanwhile government of india should ensure the passage & implementation of whistle blowers act so that seeking information & exposing lacunas in administration & governance becomes truly a people’s right. foi (freedom of information) laws have diffused rapidly throughout the advanced democracies over the last thirty years, and their organizing 'principle the promotion of transparency in policy-making and operations has become entrenched as one of the main fifteen years of right to information act in india the age of human rights journal, 17 (december2021) pp. 346-362 issn: 2340-9592 doi: 10.17561/tahrj.v17.6537 360 precepts of good administration. however, the effectiveness of many foi laws has been undermined by restructuring of governance system as well. these laws have traditionally applied to government departments or to other agencies tightly linked to these departments. as authority has shifted to quasi-governmental or private organizations, the ambit of the law has shrunk. (roberts, 2001). many public functions now are undertaken by entities that do not conform to standards of transparency imposed on core government ministries. there is little consensus on how to address this problem. the rti act echoes the homily of james madison who said, “a people who mean to be their own governors must arm themselves with power that information gives”. it goes without saying that rti has done great service to the nation by empowering citizens to access information without being subjected to provide reasons for seeking the information. a large class of information is now accessible due to this act. however, this may be sufficient only to provide a sense of satisfaction to information seekers but is surely not adequate to bring in systematic reforms which the complex governance space requires. on the one hand, the credit for unearthing several modern day scams goes to rti but perhaps the act alone may not preclude the occurrence of similar events in future. the march from darkness of secrecy to dawn of transparency cannot be completed without the support of many other reforms. 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[online] available at: https://rti.gov.in/rti-act.pdf [accessed 05 june 2021]. rti act 2005b, government of india., 2005. rti. [online] available at: https://rti.gov.in/ rti-act.pdf [accessed 08 05 2021]. rti act 2005c, government of india., 2005. rti act 2005. [online] available at: https:// rti.gov.in/rti-act.pdf [accessed 19 june 2021]. rti act, j&k 2009. jammu & kashmir government gazzette. [online] available at: http://jkfunds.nic.in/jk-rti-act-2009.pdf [accessed 28 july 2021]. sharma, a., 2013. state transparency after the neo liberal turn: the politics, limits & paradoxes of india's right to information laws. political & legal anthropological review, published by american anthropological association, 36(2), pp. 308-325. https://doi.org/10.1111/plar.12031 shreyaskar, p. k., 2014. known unknowns of rti: legitimate exemptions or conscious secrecy ?. economic & political weekly, 49(24), pp. 32-38. str, transparency international india., 2020. transparency international india str2020, india: transparency international india str. sweden, g. o., 2016. the swedish press act. 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[online] available at: https://economictimes.indiatimes.com/ news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/ articleshow/54705694.cms?from=mdr [accessed 22 june 2021]. the print, 24th june, 2020. implementation of rti act, new delhi: the print. the state of uttar pradesh v. raj narain (1975) air 865, 1975 scr (3)333. transparency international-str, 2019. transparency internationational india-str-2020, india: transparency internationational india-str. received: may 31st 2021 accepted: august 10th 2021 https://doi.org/10.5771/0506-7286-2017-4-332 https://doi.org/10.2307/825940 https://doi.org/10.2307/825940 https://rti.gov.in/rti-act.pdf https://rti.gov.in/rti-act.pdf https://rti.gov.in/rti-act.pdf https://rti.gov.in/rti-act.pdf https://rti.gov.in/rti-act.pdf http://jkfunds.nic.in/jk-rti-act-2009.pdf https://doi.org/10.1111/plar.12031 https://www.government.se/articles/2016/06/the-swedish-press-act-250-years-of-freedom-of-the-press https://www.government.se/articles/2016/06/the-swedish-press-act-250-years-of-freedom-of-the-press https://www.government.se/articles/2016/06/the-swedish-press-act-250-years-of-freedom-of-the-press https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr https://economictimes.indiatimes.com/news/politics-and-nation/1-75-crore-rti-applications-filed-since-2005-study/articleshow/54705694.cms?from=mdr fifteen years of right to information act in india: a long way to go 1. introduction 2. history of right to information 2.1. what is the right to information and why it’s needed? 2.2. what does the term “information” mean? 2.3. what does right to information mean? 3. procedure for obtaining information 3.1. public information officer obligations 3.2. in which cases information cannot be obtained (barowalia, 2012) 3.3. right to information amendment bill 2019 3.4. importance of right to information 4. current status of rti act 2005 5. the shadow of covid-19 on the rti regime in india 6. challenges before the rti act 7. conclusion & recommendations recommendations references microsoft word tahrj_template.docx the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 19 human rights beyond dichotomy between cultural universalism and relativism edna raquel hogemann1 abstract: the consolidation of relations of global society requires the progressive establishment of a global legal system, consisting of a system of rules —precisely, human rights— as the source and evaluation criteria of positive national rights. this essay aims to contribute to some extent using reflective dialectical methodology, establishing logical-argumentative criteria, based on the dialogue between authors to exercise a critical reflection of the official narrative on the universality of human rights, in addition overcoming the universalism/relativism dichotomy eurocentricaly established by a theory of human rights between universalism and cultural relativism. keywords: human rights; universality; multiculturalism; cultural relativism summary: 1. introdution. 2. the historical-ideological construction of human rights. 3. eurocentrism in the discourse of human rights. 4. the issue of multiculturalism and human rights. 5. conclusion 1. introdution there are strong criticisms of the attempts to create a world political order based on the defense of human rights, allowing international organizations and major powers to implement a centralized policy of “humanitarian” intervention, situated above the sovereignty of states, using even of war resources if necessary. in this line of argument, there are those who accuse the west of using “human rights rhetoric” to cover up their true political and economic interests and, through that discourse, impose its policies on the rest of the world. the process leading to the creation and consolidation of human rights is contemporary to the expansion of europe and the west over the whole world and inextricably linked to this process and its contradictions. if, in the so-called west, the consolidation of some fundamental rights was the result of many struggles and conflicts and wars, non-european countries excluded from this process since the beginning and not infrequently participated as victims. the approach to the issue of human rights comes as a more tortuous issue to jurists faced with dilemmas that have assumed an enormous degree of importance with the intra-frontier and international community and which, at the same time, have not yet achieved unity of thought that allows its organization to ensure universal protection. it is, therefore, relevant to the establishment of a set of universal human rights to try to find, at least, a minimum set of guarantees capable of assuring the dignity of the 1 ufrj and permanent professor of the graduate program in law and dean, at the federal university of the state of rio de janeiro unirio. e-mail: ershogemann@gmail.com the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 20 human rights beyond dichotomy between cultural universalism and relativism human person. the very notion of dignity is problematic for the solution of this impasse, as each country, and within each of these countries, each culture sheltered by them, tends to establish its own conception of human dignity. to discuss a theory of human rights necessarily leads to a reference to the juridical theory of this class of rights, enshrined by a range of treaties, conventions and laws that define and regulate both national and international, guarantors of the fundamental rights of the human person; secondly, not least, the necessary reference to the theoretical basis of human rights, lacking a reflection that takes into account all the issues that are intrinsic and extrinsic to them: cultural, social, political, religious, gender, ethnic, economic, mental, technological, biotechnological, among others, and no less relevant, to fail to conceive placidly as if ultimate, universal and perfect truth were the various social facts politically placed in the world today. therefore, it is a task, by scientific vocation, faced by the theory and practice of human rights, to overcome these social situations in terms of values and norms, which ensure the dignity of the human person. although the ideal of human rights seeks a universality of consecration and respect in the rights that must be fulfilled, the different cultures, religions and customs of the different country show that the practice of human rights is not so simple, on the contrary, it is difficult. however, the movement of globalization and the international benefits that the countries receive, necessitate the incorporation of human rights norms. the fulfillment of norms concerning human rights, even when these are not in keeping with the culture of their country, leads to the conclusion that in this action lies a true moral content, which, in kant’s eyes, means fulfillment not for duty, but out of duty. human rights have a highly moral content; all the declarations related to this right prescribe norms of conduct to be fulfilled by the states that they sign and even, to a certain extent, to their non-signatories, since the un has unconventional mechanisms in case of violation to human rights in countries. then the questions begin: what is the foundation of human rights? how is the situation between the universality sought by the universal declaration of human rights and the traditions derived from different cultures? there are several currents, and this essay aims at examining, according to parameters of contemporary anthropology, multiculturalism, especially in democratic societies of law, to express the legitimacy and effectiveness of new juridicities, as well as to compare national and international norms, such as the international criminal court and the european court of human rights, understood as elements of reaffirmation of the social commitment to human rights and to the practices of citizenship as a space for struggle and human emancipation. in this perspective, it is intended to reiterate that the construction of a theory justifying human rights requires overcoming the dichotomy of universalism and relativism. 2. the historical-ideological construction of human rights the universal declaration of human rights, signed in 1948, reported what would be the beginning of a new era in which the assumption of the elevation of human rights would be of interest to the international community. this was what the legion of the oppressed, detested, massacred and persecuted from the outside world expected. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 21 edna raquel hogemann this declaration was of unequivocal importance, which is why his text was immediately referred to by some constitutions. but, unfortunately, it is not legally enforceable for all states to observe; this situation led to the need for the elaboration of a number of protocols that strengthened and gave particularity to the rights present in its text, with a view to their recognition and effectiveness by the states. between 1945 and 1966, a number of key international human rights documents were drawn up, granting them mandatory legal status, a hard law, with the ratification of the international covenant on civil and political rights and the international covenant on economic, social and cultural rights, both of 1966, in addition to the optional protocols to the international covenant on civil and political rights, which constitute the international bill of human rights. about this declaration, comparato (2001, p. 226) teaches that: the universal declaration of human rights was drafted under the impact of the atrocities committed during world war ii. taking up the ideals of the french revolution, it represented the historical manifestation that the recognition of the supreme values of equality, freedom and fraternity among men had finally been formed. the crystallization of these ideals in effective rights will be progressively, at the national and international level, as the result of a systematic effort of human rights education. barreto (2010, p.8) argues that human rights “first became a process of recovering the foundations of the legal system in the moral argumentation”. in order to do so, it was necessary to substitute the normative totality intended by the sovereign’s will for a set of original rights, an expression of natural freedom and equality between men. it is important to point out that this set of rights starts from a presumption of ownership of a subject conceived through a thomist vision of person, that is, man would be composed of spiritual and bodily substance. this conception of person led to the elaboration of the principle of the essential equality of every human being, notwithstanding individual and group differences, biological or cultural. for comparato (2001, p.19), it is this essential equality of the person that forms the nucleus of the universal concept of human rights. “the expression is not pleonastic, since these are rights common to every human species, every man as a man, which result from his own nature, and are not mere political creations.” the human being has no price, but a dignity, since it does not allow substitution for another equivalent, being an end in itself. according to kant (1995, p. 71), “in the realm of ends everything has either a price or a dignity. when a thing has a price, it can be put instead of any other as equivalent; but when a thing is above all price, it does not allow equivalent, so it has dignity.” the author goes on to explain that what constitutes the condition only thanks to anything can be an end in itself, has not only a relative value, that is, a price, but an intimate value, i.e., dignity. morality and humanity are the only the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 22 human rights beyond dichotomy between cultural universalism and relativism things that have dignity. now every man has dignity, for humanity as a species, every human being, in his individuality, is properly irreplaceable, and can not be exchanged for anything, being an end in itself. the term “human rights” is not unanimous in doctrine. there are authors who prefer other nomenclatures. an example of this is that according to fernandez (1991, p. 78), the expression that best defines the current theoretical situation of human rights is “fundamental rights of man”, for the following reasons: it is intended to show that every person has moral rights because they are so and that they must be recognized and guaranteed by society, by law and by political power without any kind of social, economic, legal, political, ideological or cultural discrimination. or sexual. these rights are extremely connected with the idea of human dignity and are at the same time the conditions for the development of this idea of dignity. (fernandez 1991, p. 78) the french doctrine commonly uses the term “public liberties”; the german one uses more frequently the term “subjective public rights”. the charter of the united nations uses both the term “human rights” (preamble and article 56) and “fundamental freedoms” (art. 56 (c)). human rights exist even without positive recognition, that is, there is no need for any law to prescribe it so that people are holders of human rights. human rights are not precisely related to the natural characteristics of man, nor to his original position of society, “because they are independent of any legislation, legal title or tradition. rights that do not need to be attributed are irrevocable and inalienable” (barreto, 2010, p.11). complementing this reasoning, for the author, human rights are an expression that combines law and morality and express, since the eighteenth century basically: respect for the dignity of the human person, the right to life, the equality of all men before the law, security, freedom of expression, access to education and the right to political participation. all these rights are based more on the feeling of an original right than on the expression through the positive sovereign law. these rights, in the historical process of their affirmation, served and serve to evaluate the laws from the angle of their ethical foundation and, therefore, to legitimize or delegitimize them. (barreto, 2010, p.11). fernandez (1991, p. 79) states that “we can only consider human needs as human needs that demand their satisfaction unconditionally.” according to ramos (2005, p.33), “human rights norms, vague or full of indeterminate concepts, incessantly need the judicial realization of their scope and meaning.” this is due, in particular, to the search for universality. the less a norm is abstract, the more specific is its scope, which renders the universality sought by human rights practically impossible. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 23 edna raquel hogemann shivji (1989, p.8) warns against the danger of legalizing human rights, highlighting the ideological and historical components in a colonialist bias of these rights. that is it addresses the issue in a socio-historical and non-normative context. the author uses a historical and discursive approach, which consists of a study of the rights, from a philosophical perspective, from a social, economic and political context, thus allowing a reasoning and reflection of the various rights, namely, the concepts of equality, self-determination and life within a geopolitical framework of peoples. it adopts a historical approach in that it analyzes the evolution of human rights from the historical context in which they were created and developed. it states that the concepts of equality and rights have an ideological basis. thus, it adopts a discursive approach, insofar as it analyzes the ideologies of the world powers, which were the basis of the appearance and legalization of these rights. from a historical-ideological construction, the author explains the ideological separation between developed and developing countries. on the other hand, baxi (2006) adopts a dialectical approach of inclusion and exclusion. that is, the author considers that the construction and deconstruction of norms, standards and values of human rights belong to a dialectical process and inclusion and exclusion. the author refers to intertextuality as having a political component, and several hierarchical constructions of human rights exclude the textuality of the same rights. there is a need here for the existence of points of contact between positions, thus proposing a union. neither of these approaches has a normative aspect, being certain that, for shivji, the author considers there is, for example, a contextual element of socio-historical order that is not considered. baxi (2006) points out that every act of writing and interpreting implies questioning the notions of authorship and authority of a text. for this, the author relies on michel foucault’s thought in which the very notion of author is problematized in the face of the constant proliferation of possibilities of interpretation. this is because, for baxi (2006, p. 170) “indeterminate power of interpretive communities has indeed been far-reaching not only because its ‘authorship’ remains multitudinous in case of treaties and instruments but also improvised as in the case of usual reading of the international as a source of law donnelly (2006, p.68) points out some interesting points in this interpretation of human rights, namely: the existence of a legal consensus at the international level regarding regard to human rights, relatively superficial and not very comprehensive. beyond the fact that the law reflects or materializes the interest of the powerful. donnelly (2006, p.69) points to the exclusionary process of defining human rights, in that it leaves out individuals and groups of people, both at the national and transnational levels. in a especial way, it is important to emphasize what moyn says in his publication named christian human rights. he writes, “[t]he general thesis of christian human rights is that through this lost and misremembered transwar era, it is equally if not more viable to regard human rights as a project of the christian right, not the secular left. their creation brought about a break with the revolutionary tradition and its droits de l’homme, or —better put— successful capture of that language by forces reformulating their conservatism” (2015, p. 8). the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 24 human rights beyond dichotomy between cultural universalism and relativism moyn considers that human dignity has become a central argument in christian political discourse since 1937. for this author, both the christian democratic parties as well as the catholic church itself and the protestant churches took charge of promoting the discussion around religious piety in the years immediately prior to the outbreak of world war ii. on the other hand, with the end of the war, the governments of western europe tried to highlight this process. thus, human rights end up gaining public space as a result of these two movements at the beginning of the cold war. and he concludes: in the 1940s, as much as in and through some of em contemporary legacies, christian human rights have been not so much about the inclusion of the other as about policing the borders and boundaries on which threatening enemies loom. and so the story of christian human rights shows how our premier pincipeles have a complex itinerary. like all inheritances, it is worth tough criticismo rather than unreflective admiration. (2015, p.04) in the conservative human rights revolution, marco duranti (2017) offers an analysis of the emergence of the european convention on human rights (echr) and the european court of human rights, in which the author shows a very close perspective and argues that conservatives of england and france (including french catholics and british socialists), after world war ii, conceived this document as a way of restricting democratic capacity of elected governments to implement leftist policies, aiming at the exclusion of communists from the european project, on the one hand and, on the other, the refutation of equal safeguard to colonized people. “if there was any revolutionary turn in the history of human rights”, evinces marco duranti (2017, p.23), it was both european and conservative in nature. precisely because of this cultural and historical context, for many the banner of the universality of human rights remains questioned.2 this is because the historical understanding of the struggle for human dignity should consider the efforts of societies subjugated by tyranny and european imperialism. unfortunately, such efforts are not part of the official narrative of human rights. 3. eurocentrism in the discourse of human rights fernandez (1991, p. 79) states that “human rights have their anthropological foundation in the idea of human needs. its recognition, exercise and protection of these rights are intended to satisfy a series of requirements that are considered necessary for the development of a dignified life “from this idea of human needs, the most diverse foundations that are the basis for human rights arise. 2 one must consider: villey, m 2007, law and human rights, martins fontes, são paulo. mutua, m 2008, human rights: a political and cultural critique, university of pennsylvania press, eua. santos, b s 2003, for a multicultural conception of human rights. in: santos b s (ed.) recognizing for making free: the paths of cultural cosmopolitanism. civilização brasileira, rio de janeiro. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 25 edna raquel hogemann mutua (2002, p.10) considers that the human rights movement is marked by a very specific metaphor and that it has a connection with a parallel subtext linked to the great historical narrative of human rights, which portrays a relation between rapists, victims and saviors. this colonialist construction (rapists victims saviors) is considered a three-dimensional metaphor in which each dimension reveals a metaphor in itself. for the author, this three-dimensional representation of the corpus of human rights and its discourse would be unidirectional and predictable; a dichotomous construction that necessarily puts what is considered as “good” against what is regarded as “evil.” in this sense, behind the discourses of justice, human rights, democracy, development, and even multiculturalism, in modern rhetoric, it underlies the colonial logic of a eurocentric epistemology, namely, a standard of knowledge that is imposed as universal and categorizing of humanity. this logic is based on the idea that some (the saviors) are in a universal place, in such a way that they are the representation of the considered universal knowledge (adequate, impartial, equitable, good for all). on the other hand, the “others” (rapist-victims) are those who are in a particular and localized place and therefore should receive this knowledge. thus, it is possible to find parities in the epistemic control that allowed the development of concepts such as in ferior peoples, barbarians, primitive and underdeveloped. this colonialist and eurocentric view defends the idea that europe —and more contemporaneously with the west— implies the civilizing historical mission (the saviors), in order to remove the rest of humanity from its primitivism (rapist-victims), from its irrationality and of their underdevelopment, to then lead such peoples towards progress and rationality (dussel, 2005, p. 59). the first dimension of this prism comprises the wild and evokes images of barbarism. the acts committed by human rights violators are presented as cruel and unimaginable, so that they are represented as the denial of humanity. in mutua’s view (2002, p.10), the history of human rights presents the state as the classic rapist, a savage permanently committed to consuming humans. although rape, in human rights discourse, involves much more than just the state, it is portrayed as an operational instrument of rights violations. states become violators (savages) when they stifle and oppress civil society. the “good” state controls its oppressive tendencies, purifying itself and internalizing human rights. the “bad” state, in turn, is expressed through an anti-liberal, antidemocratic or authoritarian culture. the redemption of the state depends only on its submission to human rights norms. the state is the guarantor of human rights, it is also the target and the raison d’être of human rights norms. but the reality is much more complex. although the metaphor may suggest, it is not the state itself that constitutes itself as rapist or barbarian, but its cultural foundation. according to mutua (2002, p.11), the state only becomes a rights abuser when “bad” culture surpasses or does not allow the development of “good” culture. thus, the “real” rapist is not the state itself, but a culture diverted from human rights. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 26 human rights beyond dichotomy between cultural universalism and relativism the intrinsic savagery, both theoretically and practically, to the one-party state, to the military junta, to the controlled and closed state, to theocracy, or even that revealed in cultural practices such as female genital mutilation, are not to the state itself. the state as such is neutral, instrumentalizable —a receptacle— that violates rights insofar as it implements the design of a culture of violations. it is important to emphasize that the conception of modernity was first elaborated, taking into account the contrast with the notion of “primitive”, represented not only by the past, but also by the new discoveries, leading to the need for overcoming, consummated by enlightenment. in this passage from a lower condition to a higher condition, we find, for mignolo (2010), the condition for the establishment of european epistemic hegemony. in this picture, it is certain that the production of knowledge implies logically the existence of subjects who have the power to enunciate them and others who are necessarily subject to them, that is, they are limited to the position of mere spectators when not relegated to the condition of objects of knowledge. in this context, some have epistemic credibility (saviors) and others do not have legitimation for theoretical reflections considered as valid (rapist-victim), using mutua’s relational conception. the official perception of human rights, present in traditional doctrine, is marked by this european liberal theory, which corroborates the theoretical and political elements necessary for the foundation of national states or, in the context of the economic and political relations of the period in question, of the colonial metropolises (quijano, 2005). exactly because of this cultural and historical context, the banner of the universality of human rights remains questioned. this is because the historical understanding of the struggle for human dignity should consider the efforts of societies subjugated by tyranny and european imperialism. unfortunately, such efforts are not part of the official narrative of human rights. however, according to barreto (2013, p. 3) a non-eurocentric translation of human rights can be carried out by means of a complex process which for this author comprises at least three moments: first, a critique of eurocentric theory; second, the recovery, reconstruction or consideration of the non-european tradition of values and cultures; and, lastly, the effective realization of a critical dialogue between the different traditions. the first move would be towards stripping the european theory of its alleged universal validity and pointing out that europe is not the exclusive place from which it is possible to theorize about human rights. here it is important to clarify that, when the author refers to europe, he does so taking into account the habermasian philosophical meaning of the term, for whom this conception includes not only the european continent, but also those countries which have harmonized and developed to a considerable degree the basic patterns of european modernity, such as the united states, australia, and japan. thus, the concept of europe would be equivalent to that of the west or the western world. in recent times, critical views of the standard version of human rights have been developed, which account for the eurocentric character of their themes, as well as their origins and historiography. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 27 edna raquel hogemann the alternative proposed by shivji (1989) involves the understanding of the discourse of human rights and the extension of these rights, through a reconstruction and reconceptualization so that it does not become a part of the dominant project, rather than the liberator, thus recognizing human rights as global and collective rights. thus, the language of human rights should be implemented, articulating the pressing concerns of the vast majority, and at the same time providing a language of resistance against and changing existing conditions. there must be an awareness of the different perspectives of human rights, so that one can know how to promote them, in the interests of whom and in what direction. therefore, there must be a reconceptualization of human rights, in order to make them an ideology of resistance. 4. the issue of multiculturalism and human rights the ethical values of a community vary according to the historical point of view and depend on specific circumstances. if this occurs within the same community, imagine in comparison to the values of different societies. this question is vitally important as regards the debate on the possibility of establishment of universal human rights references for all nations of the globe or not. the search for an ideal of justice must necessarily take into account respect for the other, its history, the context of domination in which it lives or lived, its fullness as a being. this involves considering the cultural ethos. but how to find the right aristotelian medium? cançado trindade (2003) reveals with special propriety that the vienna conference of 1993 can be considered as the mark of universalism-relativism tension. proof of this can be deduced from the characteristically relativistic intervention made by the representative of the chinese delegation, stating that the historical-cultural aspect of human rights, putting them in tow of the stage of development and own understanding of each country of the same. in this regard, the statement by china’s nobuo matsunaga spokesperson: the concept of human rights is the product of historical development. it is closely linked to specific social, political and economic conditions, and to the specific history, culture, and values of a particular country. different stages of historical development have different human rights requirements. countries with different stages of development or with different historical traditions and cultural background also have a different understanding and practice of human rights. (statement by nobuo matsunaga, envoy of the japanese government and representative of japan. vienna, 06/15/1993). the answer in a diametrically opposite direction would be given by barroso, representative of the delegation of portugal, who, in a statement made the following day, argued: it would be our presumption and a clear abuse to think that instead of recognizing and guaranteeing, the community of states grants or creates the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 28 human rights beyond dichotomy between cultural universalism and relativism the rights of men. it follows that the state […] must respect the rights and dignity of its citizens and can not, in the name of alleged collective, economic, security or other interests, exceed the frontier imposed on it by the very human rights and their primacy over any purpose or function of the state. it can not do so either for reasons of economic power or prosperity, or for reasons which are apparently higher and purer in moral terms, such as religion, ideologies, philosophical or political views. (statement by dr. josé manuel durão barroso, minister of foreign affairs of portugal, vienna, 16.06.1993) and he adds in his statement the fator of what he considers the obviousness of the principle of universality “ compatible with the cultural, religious and ideological diversity, assurring that the variety of beliefs, ideas, and human opinions, itself is a richness to defend and has a particular value that it is importante to respect (barroso, 1993). he cautions that using the argument of cultural diversity to establish limitations on individual rights, as unfortunately the speeches made were pointing there and beyond, would not be permissible, either in logical or moral terms. however, history has revealed that morality does not necessarily have to do with the culture of a country. regardless of the cultural background they have accumulated, countries have already been able to commit real atrocities to their nationals. examples of this are innumerable, but two examples of distinct cultures seem to be exemplary: nazism in germany and the case of the araguaia disappeared between 1972 and 1975. it is a fact that brazil and germany are very different countries in relation to culture. in nazi germany, “the prisoner did not lose only freedom and communication with the outside world. he was stripped of all his possessions: clothes, personal objects, hair, and dental prostheses. he was, above all, emptied of his own being, of his personality” (comparato, 2001, p. 23). in brazil, between 1972 and 1975, the brazilian armed forces undertook campaigns of repression against members of the so-called guerrilha do araguaia. in 1973, the president of the general republic medici took control over the repressive operations and the official order happened to be of elimination of the captured ones. by the end of 1974, there were no more guerrillas in the araguaia, and there is information that their bodies were unearthed and burned or thrown into the rivers of the region. the military government put silence on the events of araguaia and forbade the press to divulge news. in 2010, brazil was convicted before the inter-american court of human rights for violating the human rights of political disappears during the military period. in 2014 he was again convicted of enforced disappearances in the period and prepared a report on reparations for the victims until march 2015. these are just two examples of countries with different cultures that went so far as to violate the human rights of their own nationals. situations such as these demonstrate, in view of ramos (2005, 61), “the need for an international normative framework in the defense of human rights, which would prevent violations of these rights evaluated by the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 29 edna raquel hogemann domestic law”. it is noteworthy that in both situations states were acting in accordance with the law, which had no relation to morality. radbruch (1974, p. 415) focuses positivism, and relating his teaching to national laws, he explains that, in these situations (nazism, germany and the crime of forced disappearance in brazil), “positivism was what left defending the people and the lawyers against the most arbitrary, cruel and most criminal laws.” the need for a universal declaration of human rights is due to the fact that, precisely, there are different cultures that, regardless of the western point of view, violate human rights. gorender (2004, p. 21) explains that human rights, despite their universal and universalizing character, were “formalized in the context of the liberal-democratic state, as it developed in the western european world in the course of the nineteenth century, which proclaimed as inalienable rights of man the rights to life, civil liberties and public liberties.” leaving the examples of western countries on the african continent, for example, in some countries, not very different from here, freedom of expression and physical integrity are blocked, since, according to farias (2016), “there is torture in prisons and there is a heavy-handed police response to public protest.” cases of human rights violations sound just as affronts to local customs and happen all the time around the world. look at what happened in mozambique when “a woman entered a space reserved for boy initiation rites and was ‘punished’ by order of the person in charge of the ceremony, who ordered a collective violation. she was sexually raped by 17 men.”3 the examples pointed out demonstrate that regardless of the cultural values proper to each community, what is most needed to be preserved is respect for each human being as such. that is why discussions on the theme of universalism or human rights relativism add up to a new element that concerns differences or equality as considered or discussed in the context of human rights. bauman (2003, p. 97) places a particularly lucid position on this alleged polemic, revealing what may at first appear to be an insuperable dichotomy, but which actually contains, at its core, two political projects of linkage and domination. and he goes further by considering that across lines the new neglect of difference is theorized with the recognition of what he calls “cultural pluralism” whose informed and defended politics is known as multiculturalism. for this author, liberal-minded multiculturalism is aimed at 3 regarding gender-based violence in the name of culture, it is valid to visit the following web site: violation grave of human rights of women in the name of tradition. available in: http://www.forumulher.org.mz/index.php/noticias/113-violacao-grave-dos-direitos-humanos-das-mulheresemnome-da-tradicao. accessed on january 15, 2016. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 30 human rights beyond dichotomy between cultural universalism and relativism tolerance both in relation to the rights of communities and the self-affirmation and public recognition of their identities by choice or by tradition. until then there is no problem. the question arises on the average where, behind an apparent liberality, conservative forces hide their effect on maintaining the status quo of historical inequalities, because they start from the assumption of “it always was like that, so we have to respect”. the moral ugliness of deprivation is miraculously reincarnated in the aesthetic beauty of cultural diversity. what was lost sight of in the process was that the demand for recognition is disarmed unless it is sustained by the practice of redistribution —and that the community’s affirmation of cultural specificity serves little comfort to those who, thanks to the ever greater inequality in the division of resourses, have to accept that they are imposed on them. (bauman, 2003, p.98). according to douzinas (2009, p. 373), “we have the feeling of being surrounded by injustice without knowing where justice lies.” a westerner, for example, may be appalled by certain indian practices, such as the situation of dalits, or with the possibility that a muslim may be married to four women while he lives in a democratic society in which he can only marry a woman. in addition, as an essential observation, we would like to inform you that in asia there is no expectation of the creation of an asian commission or court of human rights to date, nor is there an instrument to protect them (mazzuoli, 2015, p.156). the main argument is that the asian reality can not be compared to western human rights because they are based on individualism, which is inadequate to eastern societies, which give priority to the community.4 there are even countries like china, singapore and malaysia that challenge the universalism of human rights. according to kretschmann (2008, p. 170), “ideas of freedom, equality and democracy were fundamental to the affirmation of human rights in the west.” these ideas, however, are not essential in other cultures. in hindu view, it is considered not the individual itself, as the starting point, but a complex tote of the real. it differs from the western view, in which each individual is absolute, irreducible to another, that is, the individual is above the considerations of society and the state. moreover, the idea of democracy and social order not hierarchically based on it (unlike hindu caste system) is fundamental to the west. to hindu view, western human rights are overly anthropocentric. kretschmann (2004, p.182) states that in hindu society “order is first valued, and hence the conformity of each element to its role as a whole, to society as a whole. the needs of man are ignored or subordinated to the collective.” 4 on this website, we can find more information on the asian countries’ view on the universality of human rights and the justification by which it does not sign treaties. silva, cristina gomes da. perspectivas asiáticas dos direitos humanos. available in: http://www.dhnet.org.br/direitos/sip/textos/silva_dh_asia.pdf. accessed on january 11, 2016. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 31 edna raquel hogemann in islam, according to vincent (2001, p. 42), the community of believers takes precedence over the individual, and he must act in a way that preserves his community, such as acknowledging that the community provides the integration of his personality through self-denial and action for the good of the community. individual rights will remain subject to duties towards the community; islam adopts the notion of the unity of mankind, but accepts no sovereign other than the authority constituted by reason of faith, so that religion and politics must be led by a sovereign. from the viewpoint sustained by kretschmann (2004: 213), “in this sense, some of the greatest obstacles to the practice of human rights and democracy, implying a separate regime of religion, would come from islam.” the konrad-adenauer-stifung foundation (1998, p.96), considers that the claim that the islamic religion is incompatible with the idea and practice of human rights is unfounded: “the fundamental difference lies in the fact that in islam the individual right never is placed absolutely, but there is always in relation to the law before god, every divine creation and before the human creature.” a concrete example of islamic ideological conflict with the universal declaration of human rights was with reference to articles 17 and 19, because egypt expressed reservations with these articles. article 17 of the declaration provides for freedom to marry regardless of race, religion or nationality. in egypt and in almost all muslim countries there are restrictions and limitations on the marriage of muslim women to people belonging to different religions. according to kretschmann (2004, p. 278), “it is a religious limitation,” stresses its representative, adding that, despite such a reservation, such a provision does not hurt universal consciousness, as it does when restricting freedom is based the nationality, race or color of the person.” the asian opposition to universal declaration of human rights was primarily concerned with language because of the individualistic, legalistic assertion of western rights that would be foreign to its moral culture. it was not a disagreement about values, but about articulate form. the chinese prefer to articulate and defend such rights by a community-based, moral, and appropriate bias of obligations, and by a mutual conviction of a society as a whole (parekh, 1999, p.155). according to kretschmann (2008, p. 282), “asians argued that conventional declarations of human rights prescribe the flags of western liberal-democratic governments. there should be, for the chinese, no privilege of the individual over the community.” it is worth noting that at the time of the drafting of the universal declaration of human rights, “not all members of the united nations at the time fully shared the convictions expressed in the document: although unanimously approved, the communist countries (soviet union, ukraine, czechoslovakia, poland and yugoslavia), saudi arabia and south africa abstained from voting” (comparato 2001, p. 226). the idea of universality was called into question by the lack of unanimity due to ideological conflict. currently, there is no national law immune to international human rights norms. in general, states accept the progressive limitation of their sovereignty because they need international cooperation on trade issues and to deal with transboundary problems. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 32 human rights beyond dichotomy between cultural universalism and relativism on the idea of the universality of human rights, kretschmann (2008: 274) points out that: this idea, adopted by the un general assembly in the universal declaration of 1948, was also called into question by the lack of unanimity, given the abstentions of the soviet bloc, saudi arabia and south africa, generating three types of challenges to the principle of universality: the ideological conflict, which was expressed in different interpretations of the idea of human rights. these cultural differences constitute the greatest civilizational challenges to human rights. the universality of human rights constitutes a normative claim on the mode of organization of political and social relations in the contemporary world, and not a historical or anthropological fact. its proponents consider it essential to put a stop to the conduct of bad rulers, which, according to them, would be a solution as barreto (2010, p.16) proposes for the realization of human rights, so that they go from deontological to ontological, in other words, from the world of duty to the world of being “to make the promise of human rights a reality, it is only necessary to enact them in the laws, to train judges and to indoctrinate the police.” and, moreover, to respect differences between countries. this is what the vienna declaration sought when it emphasized the importance of respecting the particularities of each sovereign state. bauman (2003, p.103) follows in its own right when referring to the recognition of cultural variety as a beginning and not the end of the question, insofar as it is a political process of dialogue and negotiation in order to overcome contenders and lower. in discussing the phenomenon of multiculturalism, taylor (2009, 38) argues that respect for equality requires the imperious respect of the fundamental rights of the individual and recognition of minority cultures, to which habermas adds the element of the “constitutional democratic state” absent from taylor’s argument. based on the assumption that the recognition of cultural diversity is a right and a proper starting point for a coherent discussion of the constitutive axiological values human action and able to order it, habermas element of the constitutional state must be added as a necessary and guiding framework for this debate. but bauman (2003, p. 125) goes further and uses the thought of another thinker who transcends the western establisment, namely, cornellius castoriadis, adding the elemento “autonomous society” of his theory of political autonomy; a society is only conceived autonomous insofar as its members are fully autonomous, have freedom of conscience, politically conceived, in the choice of their acts. reason why this is a political autonomy. autonomy envisioned within the scope of the polis, in relation to the position of the individual in the nation, or as bauman prefers “in the republic”. 5. conclusion at the end of this brief essay, let us remember marx in “on a jewish question”, when he defines that a holistic expression of the individual is the way to display a legitimately conquered, eliminating as possible reductions in the explanation of an emancipation only through strands unique, but fully calculated in all aspects of the founding company. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 33 edna raquel hogemann there are cases in which the law as conceived and current position, is still governed by the monist and centralizing system of a state model that is still democratic in law, but in a liberal political perspective, objectively, especially in the brazilian case, it is not managing to obtain a efficient response in terms of social justice that contemplates both cultural transformations and the need to protect the traditions and cultural heritage of the different ethnic groups, especially those used for the globalization of capitalism. contradictorily, the state to seek to follow social evolution, and by using the principle of prohibition, without paying attention to the specificities of each cultural aspect, ends up advancing due to those practices performed in social exclusion of the groups it encounters because it does not have rights protected by positive state legal order. such measured social groups in which they lack protection and guarantees, seek on the basis of human rights or an item of emancipation from the state; legitimized by the human rights body, it can claim or establish rules of rules, many of them prior to the advent status itself, fruits of ancient uses, costumes and traditions, in a universe parallel to the statistical right of registration of a non-state right, but currently since already as a right, although it does not come from the state; even though they recognize the positivized state authority. these pluralist practices and their efficiency in the reality of the states, as well as the effectiveness of their measures considered as different barriers imposed by the state so that society does not achieve its emancipation. in addition to the defenders of this anthropological-philosophical conception based on the idea of rationality, human rights are constituted as a moral, legal and political project, a product of modernity in the west, whose experience, maturity and, above all, political authority have accredited it to export or transplant to the rest of the world. that is why the origins of human rights have little or nothing to do with the history and rationality of non-western peoples. amid all these cultural differences, what remains of equality is the fact that a society is made up of people, with equal dignity, with equal value, who are priceless. people of different civilizations have different views on the relations between the symbolic and the men, the individual and the collective, the citizen and the state, parents and children, husband and wife, as well as different views about the relative importance of rights and responsibilities, freedom, authority, equality. such differences are the result of centuries of history. what is proposed with this essay is the exercise of a critical reflection on the official narrative of human rights; its limits, although hindering the conjecture of other glances, can not obstruct the perspective towards other paths that allow the necessary reflection towards a human rights movement that is more than a multicultural transcendent to more than universal, that is inclusive and profoundly political.this contribution is to get us to see that human rights cannot hover forevermore above history. in the face of different views and the fact that states have gone so far as to commit atrocities against their own nationals, there is a need for human rights norms beyond the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 34 human rights beyond dichotomy between cultural universalism and relativism dogmatics. such norms are purposely abstract so that they can be applied more easily in countries, regardless of their respective cultures, but lack effectiveness. the difficulty in achieving the universality of human rights lies in the fact that there is no absolute morality, but different moral system coexisting with one another. rethinking human rights means taking into account the idea of human rights as the product of a development that needs to be inclusive and global, considering the existence and participation of more than one qualified social actor and a society whose sign is solidarity and tolerance process. this re-elaboration necessarily involves a multiplicity of actors whose contribution, both culturally and socially, will be of fundamental importance for changing the conception, direction and objectives of human rights. the fulfillment of norms concerning human rights, even when these are not in keeping with the culture of their country, leads to the conclusion that in this action lies a true moral content, which in kant’s eyes means the fulfillment is not for duty, but out of duty. this respect is essential as globalization advances every day and respect for human rights is a positive factor on the international stage, facilitating cooperation between the various states. references baxi, u 2006, politics of reading human rights: inclusion and exclusion within the production of human rights, in the legalization of human rights, routledge, london. barreto, v p 2010, o fetiche dos direitos humanos e outros temas, lumen juris, rio de janeiro,. bobbio, n 1992, a era dos direitos, campus, são paulo. cançado trindade, a a, 2003, tratado de direito internacional dos direitos humanos, fabris, porto alegre. caso gomes lund e outros versus brasil. accessed14 january 2018, <http://www. direitoshumanos.gov.br/sobre/sistemasint/lund.pdf>. comparato, f k 2001, a afirmação histórica dos direitos humanos, saraiva, são paulo. comparato, f k 2000, ‘fundamentos dos direitos humanos’, revista consulex, vol. 48, dez. costa d 2009, o fim dos direitos humanos, unisinos, são leopoldo. donnelly, j 2006, ‘the virtue of legalization’. the legalization of human rights, routledge, london, pp. 67-80. duranti, m. 2017, ‘the conservative human rights revolution european identity, transnational politics, and the origins of the european convention’, oxford university press. the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 35 edna raquel hogemann dworkin, r 2000, uma questão de princípio, martins fontes são paulo. faria, p. violações de direitos humanos na áfrica. accessed 15 january 2018, <http://www.voanews.com/portuguese/news/a-38-2008-05-28-voa2-92244494. html>. fernandez, e 1991, teoría de la justicia y derechos humanos. editorial debate, madrid. fundação konrad-adenauer-stifung 1998, cinquenta anos da declaração universal dos direitos humanos, centro de estudos, são paulo, nº 11. gorender, j 2004, direitos humanos: o que são (ou devem ser), senac são paulo. kant, i 1995, fundamentação da metafísica dos costumes. porto editora, portugal. kelsen, h 2011. teoria pura do direito, martins fontes, são paulo. kretschmann, a 2008 universalidade dos direitos humanos e diálogo na complexidade de um mundo civilizacional, juruá, curitiba. mazzuoli, v o. 2015, curso de direitos humanos, método, são paulo. moyn s. ‘christian human rights’, 2015.university of pennsylvania press. mutua, m 2008, human rights a political and cultural critique, university of pennsylvania press, eua. nino, c s 1989, ética y derechos humanos: un ensayo de fundamentación, ariel, barcelona. parekh, b 1999, ‘non-ethnocentric universalism’, dunne, t, wheeler, n j, human rights in global politics, cambridge university, new york. quijano, a 2005, ‘colonialidade do poder, eurocentrismo e américa latina’, a colonialidade do saber: eurocentrismo e ciências sociais. perspectivas latinoamericanas, edgardo l, colección sur sur, clacso, ciudad autónoma de buenos aires, argentina. setembro. pp.227-278. radbruch, g 1974, filosofia do direito, armênio amado editor, coimbra. ramos, a c 2005, teoria geral dos direitos humanos na ordem internacional.: renovar, rio de janeiro. silva, c g, perspectivas asiáticas dos direitos humanos. accessed 11 january 2018, <http://www.dhnet.org.br/direitos/sip/textos/silva_dh_asia.pdf>. shivji, ig 1989, the concept of human rights in africa, council for the development of economic and social research in africa (codresia book series), london. taylor, c 2009, el multiculturalismo y la política del reconocimiento, fondo de cultura económica, méxico. vicent, r j 2001. human rights and international relations. cambridge university, cambridge the age of human rights journal, 14 (june 2020) pp. 19-36 issn: 2340-9592 doi: 10.17561/tahrj.v14.5476 36 human rights beyond dichotomy between cultural universalism and relativism violação grave dos direitos humanos das mulheres em nome da tradição. accessed 15 january 2018 <http://www.forumulher.org.mz/index.php/noticias/ 113-violacaograve-dos-direitos-humanos-das-mulheres-em-nome-da-tradicao>. received: july 10th 2019 accepted: november 27th 2019 human rights beyond dichotomy between cultural universalism and relativism abstract keywords summary 1. introdution 2. the historical-ideological construction of human rights 3. eurocentrism in the discourse of human rights 4. the issue of multiculturalism and human rights 5. conclusion references the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 1 the fulfilling right to education for rohingya refugee children in indonesia i nyoman prabu buana rumiartha1, i gusti agung mas rwa jayantiari2 abstract: the results of data collection conducted by the united nations for refugee affairs (unhcr) revealed that out of a total of 1,001 rohingya ethnic refugees from myanmar scattered in several refugee camps in aceh, indonesia, there were 374 child refugees, of whom were children without pa the principle of universality of human rights states that all humans have the same rights without discrimination, including the granting of the right to education to children of asylum seekers in transit countries. furthermore, for rohingya refugees who are already in indonesia, they are given humanitarian protection, including fulfilling the right to education for rohingya refugee children, even though indonesia is not yet a state party to the 1951 convention on refugee status and the 1967 protocol, and does not yet have a system for determining refugee status. the research results show, the fulfilling right to education for rohingya refugee children in indonesia, based on law no. 39 of 1999 concerning human rights which has standards from the universal declaration of human rights, while for the protection of refugee children it is confirmed by law no. 35 of 2014 concerning child protection which is the signing and ratification of covention on the right of the child and presidential regulation no. 125 of 2016 concerning the handling of refugees from abroad which specifically regulates refugees, ratifying the convention on the rights of the child into decisions president number 26 of 1990, then indonesia has directly agreed to the entire contents of the convention in all actions against children in indonesia such as the state's obligation to protect children who are within its jurisdiction. the provisions of government regulation no. 78 of 2021 concerning special protection for children, in article 6. indonesia ministry of education and culture circular letter no. 752553/a.a4/ hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. the policy of the indonesian government to fulfill the right to education for the children of overseas refugees should be appreciated. this is because indonesia has not ratified the 1951 convention on the status of refugees. keywords: right, education, refugee. 1. introduction this research specifically focuses on rohingya refugees in fulfilling their children's right to education because myanmar rohingya refugees who come from the southeast asian region are the most refugees who fled to indonesia with their children. in addition, this research is different from other research that examines rohingya refugees, this research specifically and more specifically examines the fulfillment of the educational rights of rohingya refugee children. however, indonesia only provided temporary housing and education for the refugees. this is because indonesia has not signed or ratified the 1951 convention on the status of refugees or the 1967 protocol. 1 doctoral lecturer at faculty of law, udayana university, indonesia (rbp.prabu@unud.ac.id). 2 doctoral lecturer at faculty of law, udayana university, indonesia (mas_jayantiari@unud.ac.id). https://doi.org/10.17561/tahrj.v21.7659 mailto:rbp.prabu%40unud.ac.id?subject= mailto:mas_jayantiari@unud.ac.id the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 2 the problem of refugees and the displacement of people within the country is one of the most complex problems currently being faced by the world community.3 indonesia's role in dealing with refugees can be traced back to the situation of refugees in vietnam from the 1970s to 1990s. the cases of refugee handlers that have occurred in recent years have increasingly emphasized that indonesia plays a role as a transit country for asylum seekers and refugees in the world. in terms of vietnam and rohingya, indonesia has shown good faith in dealing with asylum seekers and refugees.4 in this research article, we will discuss more rohingya refugees who come to indonesia, and then how the indonesian state provides fulfillment of the right to education for rohingya refugee children in indonesia. that the increasingly stringent requirements and quotas for accepting foreign refugees by receiving countries or third countries also have implications for the increasing number of foreign refugees in indonesia.5 it is undeniable that the strategic location of indonesia which is right on the path usually taken by refugees and asylum seekers to their final destination countries, has made indonesia one of the most important transit countries for refugees and asylum seekers, one of which is the rohingya refugees who make indonesia as a destination country for refugees. the issue of the rohingya crisis has again become the focus of the world since the cleansing operation against the rohingya ethnic group in the rakhine region, northern myanmar in august 2017. the rohingya are an ethnic muslim minority living in myanmar who have received discrimination, violence and are not recognized as part of the ethnic group in myanmar. myanmar. the purge operation was officially carried out by the myanmar government in response to the actions of the radical rohingya defender group, namely arsa (arakan rohingya salvation army) who tried to take revenge for all forms of discrimination and violence that the rohingya had received by attacking as many as 30 police stations and killing more of 20 police officers as well as members of the security forces.6 in this cleansing operation, the rohingya were forced out of myanmar by destroying around 214 hundreds of rohingya ethnic villages, burning around 7,000 houses, killing around 9,000 rohingya men and committing sexual violence against rohingya women and girls and around 176 villages were emptied. as a result of the cleaning operations that took place, more than 720,000 ethnic rohingya fled on a large scale by crossing the jordan river to the kutupalong camp, cox's bazar in bangladesh which is the largest refugee camp in the world for rohingya refugees.7 3 primadasa, c. p., kurnia, m. p., & erawaty, r., 2021, problems in handling refugees in indonesia from the perspective of international refugee law, journal risalah hukum, vol. 17 no. 1, p. 45. https://doi. org/10.30872/risalah.v17i1.380 4 afriansyah, a., & achjani zulfa, e., 2018, refugee resettlement: a review of indonesian laws and practices, indonesia law review, vol. 8 no. 2, p.04. https://doi.org/10.15742/ilrev.v8n2.489 5 sekretariat kabinet republik indonesia, upaya penanganan pengungsi luar negeri di indonesia, https:// setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-di-indonesia/, diakses pada 17 februari 2021. 6 yessi adeyna saputri, 2021, unicef's efforts in treating rohinggya child refugees in bangladesh in 20172018, ejournal ilmu hubungan internasional, vol. 9 no. 4, p. 660. http://ejournal.hi.fisip-unmul.ac.id 7 lee, ronan., 2021, myanmar’s rohingya genocide, london: bloomsbury publishing. https://doi.org/10.17561/tahrj.v21.7659 https://doi.org/10.30872/risalah.v17i1.380 https://doi.org/10.30872/risalah.v17i1.380 https://doi.org/10.15742/ilrev.v8n2.489 https://setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-di-indonesia/ https://setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-di-indonesia/ http://ejournal.hi.fisip-unmul.ac.id i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 3 in 2012 there was civil conflict in myanmar between ethnic rakhine and ethnic rohingya which resulted in more than 250,000 rohingya refugees returning to flee to bangladesh for protection. the peak of the rohingya tragedy occurred in 2017 where there were more than 720,000 rohingya who fled to bangladesh due to ethnic cleansing operations carried out by the myanmar government.8 the united nations children's emergency fund (unicef) as a special international organization that deals with the problems of all children in the world, finds that there are many problems that occur with rohingya refugee children. rohingya refugee children are vulnerable to various diseases and crimes. many of the child refugees experience severe psychological disorders and trauma. inadequate facilities lead to a sanitation crisis in the refugee camps. the spread of disease is not matched by the provision of medicines and vaccines for child refugees, so that the situation is getting worse.9 apart from that, the fulfillment of the right to education for rohingya refugee children is also still experiencing difficulties. the results of data collection conducted by the united nations for refugee affairs (unhcr) revealed that out of a total of 1,001 rohingya ethnic refugees from myanmar scattered in several refugee camps in aceh, indonesia, there were 374 child refugees, of whom were children without parents.10 children are an integral part of human survival and the survival of a nation and state. so that in the future they are able to be responsible for the sustainability of the nation and state, every child needs to get the widest possible opportunity to grow and develop optimally, both physically, mentally and socially. for this reason, it is necessary to carry out protection efforts to realize children's welfare by providing guarantees for the fulfillment of their rights without discriminatory treatment. with the increase in the number of refugees, it is important to remember that refugees often bring their families including children on their journeys.11 refugees who come to a certain territory of the country are generally groups of families who are in the adult category and the children category. in such conditions, child refugees need special attention and protection because they are in a very vulnerable condition.12 according to the united nations high commissioner for refugees (unhcr) records in a november 2021 fact sheet, 13,175 people are registered with unhcr including 73% adults and 27% children. of the 3,543 children registered with unhcr, 65 were unaccompanied by their parents or other adults and 33 were separated from their parents.13 8 kolovos, pavlo., 2018, one year rohingya refugees live dire cramps facing uncertain future and legal limbo, msf.org, rohingya refugee crisis, http://www.msf.org/ 9 yessi adeyna saputri, 2021, unicef's efforts in treating rohinggya child refugees in bangladesh in 20172018, ejournal ilmu hubungan internasional, vol. 9 no. 4, p. 661. http://ejournal.hi.fisip-unmul.ac.id 10 yeni handayani, 2015, fulfilling the rights of rohingya refugees, journal rechtsvinding, p. 1-2. 11 adhi, p. n., agung, i. g. p., & gitareja, b.. 2021, challenge and opportunity to implement the right to education for child refugees in indonesia, in 1st international conference on law and human rights 2020 (iclhr 2020), atlantis press, vol. 549, p. 55. 12 the protection of rights to education for the refugee children during the covid-19 pandemic. in the 2nd international conference of law, government and social justice (icolgas 2020). atlantis press. vol. 499, p.428. 13 unhcr, 2021, indonesia country fact sheet, p.1-2. https://doi.org/10.17561/tahrj.v21.7659 http://www.msf.org/ http://ejournal.hi.fisip-unmul.ac.id the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 4 the perception of the universality of human rights, viewed from a historical perspective on the development of human rights thinking, was born from and influenced by the theory of natural rights (natural rights theory) which holds that human rights are rights that everyone has at all times and places on the basis of in its existence as a human being14, the principle of universality of human rights states that all humans have the same rights without discrimination, including the granting of the right to education to children of asylum seekers in transit countries. in the context of children's rights, this means that all children's rights must apply equally to all children, including the granting of the right to education to children of asylum seekers in transit countries. before moving on to anti-discrimination norms specifically for children, it should be emphasized that general international human rights instruments also need to provide special measures for child protection that help fight against discrimination specifically for children, one of which is the protection of the right to education for asylum-seeking children in transit countries. the upholding of human rights in the educational environment is manifested in forms right to education. because everyone has this right, the fulfillment of these rights has broad implications. realizing these rights requires equity in education meaning the widest possible educational opportunity for everyone, including the fulfillment of children's right to education for asylum seekers. because of asylum seekers has entered into the territory of a country, then that country has no choice other than housing asylum seekers first, until the asylum seekers are accepted in the country third, even if only as a transit country, the obligations of the transit country not just to accommodate the country must also guarantee the basic needs or rights of the asylum seeker are fulfilled during their stay in the territory of the transit country, one of which is the right to education for asylum seekers. in overcoming the rohingya humanitarian crisis in myanmar, indonesia applies two approaches, namely politics and humanity. while the political approach focuses on dialogue both bilaterally and multilaterally, the humanitarian approach is carried out through a humanitarian aid platform. the indonesian government considers that the combination of these two approaches can be an effective tool to persuade the myanmar government to stop human rights violations and pay attention to the victims by providing humanitarian assistance,15 furthermore, for rohingya refugees who are already in indonesia, they are given humanitarian protection, including fulfilling the right to education for rohingya refugee children, even though indonesia is not yet a state party to the 1951 convention on refugee status and the 1967 protocol, and does not yet have a system for determining refugee status. in the issue of refugees, international law has a refugee convention, indonesia is not a party that participates in and ratifies the convention and the protocol. it can be said that indonesia does not yet have a legal umbrella that regulates comprehensively 14 besson, s., 2005, the principle of non-discrimination in the convention on the rights of the children. international journal of children’s rights, vol. 13 no. 4, p. 440. https://core.ac.uk/download/pdf/20656988.pdf 15 rosyidin, m., & dir, 2020, why states do not impose sanctions: regional norms and indonesia’s diplomatic approach towards myanmar on the rohingya issue, international politics, p.7. https://doi.org/10.17561/tahrj.v21.7659 https://core.ac.uk/download/pdf/20656988.pdf i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 5 the handling of refugees entering indonesia. the absence of this legal instrument has created confusion among institutions that have an interest in dealing with issues related to refugees and asylum seekers in indonesia. in indonesia the issue of refugees is still positioned from an immigration perspective so that it is solely seen from an immigration perspective, while based on the refugee convention it substantially protects the human rights of refugees. the convention is categorized as types of human rights that need to be protected such as education. in article 22 paragraph (1) of the refugee convention concerning education which reads "except where this convention contains more favorable provisions, a contracting state shall accord to refugees the same treatment as is accorded to aliens generally." so it can be concluded that child refugees in a country must receive the same treatment as citizens of the country where the child is being evacuated, especially in the field of education. this becomes a problem of how to regulate the handling of child refugees in terms of education rights if indonesia has not ratified the refugee convention. that there are several studies that discuss human rights related to the protection rights of refugees, namely the research article yessi adeyna saputri, which discusses unicef's efforts in treating rohinggya child refugees in bangladesh in 2017-2018, in this research the focus is on discussing unicef's efforts in dealing with child refugees in bangladesh in 2017-2018 as an international organization that became a humanitarian actor/actor with emergency financial assistance that succeeded in meeting some of the emergency needs for rohingya refugee children who had just arrived as refugees, creating a protection program for rohingya refugee children in refugee camps, namely: child friendly space by building 97 rooms for rohingya refugee children and adolescent space by building 309 youth group rooms located in several refugee camps.16 furthermore, there is research from esraa adnan fangary, which discusses the protection of asylum seekers, the iacthr has promoted a sustained approach of protection of asylum seekers’ and refugees’ rights in latin america. the iacthr has considered seeking-asylum persons in situations of vulnerability, therefore it has granted them an extraordinary context of protection through adopting pro homine principle against member states, applying its regional basic documents and international refugee law.17 furthermore, there is research from valerie liany gk, which discusses indonesia's role in dealing with refugees related to the 1951 convention (convention relating to the status of refugees 1951), determining refugee status and rights obtained by refugees basic human rights guaranteed by the 1951 refugee convention. as well as the basic human rights, which include the right to protection, the right to live, the right to obtain basic needs and others.18 from the brief explanation of some of these studies, what distinguishes this research article is the focus of this research article 16 yessi adeyna saputri, 2021, unicef's efforts in treating rohinggya child refugees in bangladesh in 20172018, ejournal ilmu hubungan internasional, vol. 9 no. 4, p. 660-673 http://ejournal.hi.fisip-unmul.ac.id 17 fangary, e. a., 2021, a peculiar leap in the protection of asylum seekers: the inter-american court of human rights’ jurisprudence on the protection of asylum seekers, the age of human rights journal, (16), p.31–53. https://doi.org/10.17561/tahrj.v16.6134 18 valerie liany gabriela kondoy, 2020, indonesia's role in dealing with refugees related to the 1951 convention (the 1951 convention regarding the status of refugees), journal lex et societatis, vol. 8 no. 2, p.107-118. https://doi.org/10.35796/les.v8i2.28496 https://doi.org/10.17561/tahrj.v21.7659 http://ejournal.hi.fisip-unmul.ac.id https://doi.org/10.17561/tahrj.v16.6134 https://ejournal.unsrat.ac.id/v3/index.php/lexetsocietatis/index https://doi.org/10.35796/les.v8i2.28496 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 6 on fulfilling the educational rights of rohingya refugee children who fled to indonesia and this research examines how the indonesian government provides protection for rohingya refugees including fulfilling the right to education of rohingya refugee children, although indonesia is not yet a state party to the 1951 convention on refugee status and the 1967 protocol, and does not yet have a system for determining refugee status. 2. research methods in legal research, to discuss and respond to a legal issue, approaches are needed as a basis for compiling appropriate, logical and accurate legal arguments. this study uses a normative legal approach as a process to find legal rules, legal principles, and legal doctrines to address legal issues based on studies of legal books, legal research and applicable legal regulations,19 the other is the conceptual approach to identify the ideas that give rise to legal notions, the legal principles or legal arguments for solving the problem faced,20 to answer and analyze how to fulfill the right to education for rohingya refugee children in indonesia, even though indonesia has not yet become a state party to the 1951 convention on refugee status. 3. discussion 3.1. the role of the indonesian government in providing education services for refugee children the principle of the best interest of the child is a principle that prioritizes the interests of the child. indonesia as a country that ratifies the convention on the rights of the child must, of course, comply with the principles and provisions in establishing policies in the context of protecting children's rights.21 the best interests of the child must be applied to all matters relating to children or children, and considered to resolve any possible conflict between the rights enshrined in the convention or other human rights treaties. attention must be paid to identify possible solutions that are in the best interest of the child. this implies that the state is obliged to clarify the best interests of all children, including those in vulnerable situations, when adopting measures implementation.22 indonesia is a country participating in the convention on the rights of the child or children's rights. indonesia as a country that ratified the convention on the rights of the child on january 26, 1990 through a decree of the president of the republic of indonesia number 36 of 1990, of course, everyone is required to comply the rules contained in the convention on the rights of the child. 19 peter mahmud marzuki, 2010, legal research, jakarta: kencana. 20 i nyoman prabu buana rumiartha, ni luh gede astariyani & anak agung sagung ngurah indradewi, human rights of indigenous people in indonesia: a constitutional approach, journal east asia & international law, vol. 15/no.2 (2022); 395-402. https://doi.org/10.14330/jeail.2022.15.2.10 21 laurensius arliman, s., 2017, protection of children by society in terms of historical schools in the application of the principle of the best interest of the child in the life of children in indonesia, journal era hukum, vol. 15 no. 1. p. 141. https://doi.org/10.24912/era%20hukum.v15i1.668 22 united nations, general comment no 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), p.9. https://doi.org/10.17561/tahrj.v21.7659 https://doi.org/10.14330/jeail.2022.15.2.10 https://doi.org/10.24912/era%20hukum.v15i1.668 i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 7 even though indonesia has ratified the convention on the rights of the child, it has also made reservations on several provisions of the convention on the rights of the child, which means that indonesia has not fully agreed to all the contents of the convention. however, the indonesian government consistently believes that certain articles in the convention need to be considered and implemented in accordance with the indonesian constitution, including article 22 of the convention on the rights of the child. whereas child refugees are the responsibility of the indonesian government in terms of providing education for child refugees, this is in line with the ratification of the convention on the rights of the child described in article 3 paragraph (2) of the convention on the rights of the child, namely the state's obligation to protect children who are in its jurisdiction. the role of the indonesian government in providing education services for refugee children, in collaboration with the international migration organization/ iom, the indonesian government, through the ministry of education, culture, research, and technology, is working hard to fulfill the right of children of overseas refugees to get an education. the indonesian government has prepared a good education system for children of foreign refugees who are considered important for the future of children of foreign refugees. circular letter from the secretary-general of ministry no. 752553/a. a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. the policy of the indonesian government to fulfill the right to education for the children of overseas refugees should be appreciated. this is because indonesia has not ratified the 1951 convention on the status of refugees. in addition, the role of the indonesian state in providing protection to refugees is implemented in the form regulation of director general of immigration number imi-0352. gr.02.07 concerning illegal immigration handlers declaring themselves as asylum seekers or refugees, temporary shelters (community houses) are other places where people are held. foreigners whose status has been determined by unhcr as refugees and with special needs. the transfer of detainees to the community house will be carried out if there is a recommendation letter from the directorate general of immigration for the director of immigration investigation and enforcement regarding approval for the transfer of detainees and then the letter is delivered to the iom (international organization for migration) to facilitate the transfer of the said detainee. fulfillment of human rights of refugees by the government of indonesia during the covid-19 pandemic, indonesia had not ratified the 1951 refugee convention and the 1967 protocol, and did not yet have specific rules regarding refugees during the covid-19 pandemic, so the indonesian government was based on the same rules as the rules for dealing with refugees before the covid-19 pandemic, based on ratified provisions of international human rights law, and general principles of international law regarding refugees. fulfillment of refugee human rights by unhcr and the government of indonesia during the covid-19 pandemic, has not been fully fulfilled, one of which is the education rights of refugee children, this is because during the covid-19 pandemic the movement of educational institutions in indonesia was mostly closed. however, when the covid-19 pandemic diminished and was declared endemic by the indonesian government, the https://doi.org/10.17561/tahrj.v21.7659 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 8 fulfillment of the educational rights of refugee children was again given to the maximum based on the provisions indonesia ministry of education and culture circular letter no. 752553/a.a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees. although circular of the secretary general of the republic of indonesia ministry of education and culture no. 752553/a.a4/hk/2019 is not included in the hierarchy of laws and regulations in indonesia so it is considered that the indonesian government is not serious in providing fulfillment of the right to education for overseas refugee children, this cannot be justified, this is because the circular letter is the basis that is used directly in each region to practice directly in fulfilling the right to education for foreign refugee children. in addition, the level of seriousness of the indonesian state in providing fulfillment of the right to education for refugee children abroad can be seen from the ratification of the united nations convention on the rights of child 1989 (uncrc) in the decree of the president of the republic of indonesia no. 36 of 1990, which contains education is the right of every child in the world, so it is important to protect child refugees and have an obligation to fulfill children's rights listed in the points of the articles written in the uncrc. 3.2. the fulfilling right to education for rohingya refugee children in indonesia based on the hierarchy of laws and regulations related to fulfilling the educational rights of refugee children can be seen in the provisions, based on law no. 39 of 1999 concerning human rights which has standards from the universal declaration of human rights, while for the protection of refugee children it is confirmed by law no. 35 of 2014 concerning child protection which is the signing and ratification of covention on the right of the child and presidential regulation no. 125 of 2016 concerning the handling of refugees from abroad which specifically regulates refugees. furthermore upholding human rights in the educational context of refugee children in indonesia can be realized in the form of the right to education which refers to the provisions of government regulation no. 78 of 2021 concerning special protection for children, in article 6 letter k : “fulfilling the basic and special needs of children consisting of food, clothing, housing, education, provision of health services, learning and recreation, security guarantees, and equality of treatment.” as well as existence, indonesia ministry of education and culture circular letter no. 752553/a.a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. in addition, the role of the indonesian state in providing protection to refugees is implemented in the form regulation of director general of immigration number imi-0352. gr.02.07 concerning illegal immigration handlers declaring themselves as asylum https://doi.org/10.17561/tahrj.v21.7659 i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 9 seekers or refugees, temporary shelters (community houses) are other places where people are held. foreigners whose status has been determined by unhcr as refugees and with special needs. the transfer of detainees to the community house will be carried out if there is a recommendation letter from the directorate general of immigration for the director of immigration investigation and enforcement regarding approval for the transfer of detainees and then the letter is delivered to the iom (international organization for migration) to facilitate the transfer of the said detainee. indonesia is not a party to the convention refugees and the 1967 protocol. therefore, indonesia does not have the authority to determine whether a person or group of people, requesting refugee status to be recognized as refugees. authority this was carried out by unhcr considering that indonesia is not a party to the refugee convention and the 1967 protocol.23 as a country that has not ratified the refugee convention and the 1967 protocol to become national law, indonesia is obliged to maintain its international obligations related to the protection of human rights because indonesia is a party to various international human rights instruments, including the universal declaration of human rights, the international covenant on civil and political rights, and the convention on the rights of the child and the convention against torture and other cruel, inhuman or degrading treatment or punishment,24 non-refoulement is a principle that is central to international refugee law. it prohibits the forcible return or expulsion of refugees to a country where they may face persecution, torture, or other serious harm. this principle is enshrined in international treaties, such as the 1951 refugee convention and its 1967 protocol. it is a fundamental element of protecting the rights and safety of refugees. the fulfilling right to education for rohingya refugee children in indonesia, based on law no. 39 of 1999 concerning human rights which has standards from the universal declaration of human rights, while for the protection of refugee children it is confirmed by law no. 35 of 2014 concerning child protection which is the signing and ratification of covention on the right of the child and presidential regulation no. 125 of 2016 concerning the handling of refugees from abroad which specifically regulates refugees. indonesia recognizes the rights of children as a whole in accordance with the agreements that have been stipulated in the declaration of the rights of the child and the convention on the rights of the child, because indonesia itself is an integral part in terms of international instruments on human rights, thus ratifying the convention on the rights of the child into decisions president number 26 of 1990, then indonesia has directly agreed to the entire contents of the convention in all actions against children in indonesia such as the state's obligation to protect children who are within its jurisdiction. 23 wagiman, 2012, international refugee law, jakarta: sinar graphic, p.128. 24 op.cit., afriansyah, a., & achjani zulfa, e., p.20. https://doi.org/10.17561/tahrj.v21.7659 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 10 figure 1. data collection of refugees & rohingya child refugees in pekanbaru, indonesia. based on the latest data from the indonesian ministry of law & human rights, on april 7, 2023, the total number of rohingya refugees in pekanbaru, indonesia was 982 people. the refugees and asylum seekers are temporarily stationed in pekanbaru, indonesia.25 the indonesian government has prepared a good education system for children of foreign refugees who are considered important for the future of children of foreign refugees. indonesia ministry of education and culture circular letter no. 752553/a.a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. there are two (2) aspects or reasons why indonesia has not ratified the 1951 refugee convention and 1967 protocol, namely the first, the security aspect. whereas the security aspect is a reason or obstacle that will be faced by the indonesian government if it chooses to ratify the 1951 refugee convention and the 1967 protocol. as a country, guaranteeing security in its own country is a responsibility that must be fulfilled by the state to its residents. then the second, economic aspects. whereas the economic aspect is an aspect that is most important for the sustainability and progress of a country, indonesia as a country that still has the status of a developing country, of course the economy in indonesia is also not as big and as good as developed countries in europe. domestic problems in indonesia are still numerous and complex, poverty and unemployment rates still characterize the list of indonesia's domestic problems which until now have not been completely resolved, making this a consideration for the indonesian government to prefer not yet ratify the 1951 refugee convention and 1967 protocol. 25 statement from the head of the regional office of the ministry of law & human rights in pekanbaru, indonesia. https://riau.kemenkumham.go.id/berita-utama/191-pengungsi-rohingya-dari-aceh-tiba-di-pekanbaru kemenkumham-riau-lakukan-pendataan https://doi.org/10.17561/tahrj.v21.7659 https://riau.kemenkumham.go.id/berita-utama/191-pengungsi-rohingya-dari-aceh-tiba-di-pekanbaru-kemenkumham-riau-lakukan-pendataan https://riau.kemenkumham.go.id/berita-utama/191-pengungsi-rohingya-dari-aceh-tiba-di-pekanbaru-kemenkumham-riau-lakukan-pendataan i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 11 even though indonesia has not ratified the 1951 refugee convention and the 1967 protocol, indonesia has ratified the convention on the rights of the child as a form of indonesia's commitment to fulfilling the educational rights of refugee children, as stated in the provisions of article 22 of the 1989 convention on the rights of childs that every child has the right to education. and teaching, every refugee has the right to receive the same treatment as other citizens to obtain education in elementary schools, including the right to exemption from certain educational fees including the right to obtain scholarships. children who are refugees are particulary vulnerable group that require protection and special care. according to peter newel there are several lesson why children need protection there are recovery fee, the long-term impact of government’s or particular groups’s action, or otherwise of the government’s group, the gap in public service provision, the existence of voting rights not accompanied by lobbying ability to influence government policy, difficulty in accessing the protection and arrangement of children's rights, and the last is often exploited and misused against the existing regulations.26 human rights are a social and universal category that comes from human nature, its dignity, and uniqueness. they are subordinated through the opportunities provided to enjoy the fundamental, most significant advantages and circumstances of an individual's secure, unrestricted life in society27. human rights emerged around the beginning of the 13th century when western philosophers introduced two basic concepts in human rights namely, freedom and fundamental human rights28. related to 'freedom and human rights' studied in the perspective of protecting human rights to the educational rights of asylum seekers, in this case it can be seen that there are basic principles of protection of freedom and protection of the basic rights of asylum seekers' right to life and one of them is obtaining the right to education. upholding human rights in the educational context of refugee children in indonesia can be realized in the form of the right to education which refers to the provisions of government regulation no. 78 of 2021 concerning special protection for children, in article 6 letter f mentions “the priority of emergency rescue actions, recovery, and security”, then if analyzed in the context of refugee protection this is a matter of priority, so that further fulfillment of the educational rights of refugee children can be achieved, as stated in article 6 letter k. article 6 letter k: “fulfilling the basic and special needs of children consisting of food, clothing, housing, education, provision of health services, learning and recreation, security guarantees, and equality of treatment”. 26 shalihah, fitrianus. 2020. the protection of rights to education for the refugee children during the covid-19 pandemic. advances in social science, education and humanities research, vol. 499. atlantis press. p.427. 27 hren, nataliya. 2022. human rights and current dscriminatory manifestations (on the example age discrimintaion in the socialand communicative sphere. the age of human rights journal, 19. p.72. 28 smith, rhona k. m., 2005, textbook on international human rights, edisi kedua, oxford university press, new york, p. 4. https://doi.org/10.17561/tahrj.v21.7659 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 12 government regulation no. 78 of 2021 does not specifically regulate the protection of child refugees, but regulates the provision of protection for children who are in the territory of the indonesian state, one of which is access to fulfilling education for child refugees who are in the indonesian territory, as stated in the provisions of article 6 letter k. in collaboration with the international migration organization iom, the indonesian government, through the ministry of education and culture, is working hard to fulfill the right of children of overseas refugees to get an education. the indonesian government has prepared a good education system for children of foreign refugees who are considered important for the future of children of foreign refugees. indonesia ministry of education and culture circular letter no. 752553/a. a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. the policy of the indonesian government to fulfill the right to education for the children of overseas refugees should be appreciated. this is because indonesia has not ratified the 1951 convention on the status of refugees. 3.3. refugee children's educational rights from an international legal perspective human rights are a social and universal category that comes from human nature, its dignity, and uniqueness. they are subordinated through the opportunities provided to enjoy the fundamental, most significant advantages and circumstances of an individual's secure, unrestricted life in society29. the educational empowerment of children is the main objective of the human rights-based approach to education. its main objective is to make sure that every kid obtains a quality education that upholds and supports their right to dignity and healthy development30. in 1948, the universal declaration of human rights recognised education as a universal entitlement. the 1979 convention on the elimination of all forms of discrimination against women called for no discrimination in educational provision for men and women, and the 1989 convention on the rights of the child affirmed the right of all children, regardless of status, to free and compulsory primary education, to available and accessible secondary education, and to higher education on the basis of capacity. the right to education for refugees is articulated in article 22 of the 1951 convention relating to the status of refugees, resolution 64/290 of the human rights council of the united nations general assembly on the right to education in emergencies and in the draft resolution to the human rights council on the right to education for refugees, migrants and asylum seekers. 29 nataliya hren, et. al., 2022, human rights and current discriminatory manifestations (on the example age discrimination in the social and communicative sphere), the age of human rights journal, vol. 19. p.72.https://doi.org/10.17561/tahrj.v19.7124 30 agaptus nwozor, blessing okhillu, 2022, child’s rights and the challenges of educating the girl child: assesing the contributions of unicef in nigeria, the age of human rights journal, vol. 18, p.293. https://doi.org/10.17561/tahrj.v18.6520 https://doi.org/10.17561/tahrj.v21.7659 https://doi.org/10.17561/tahrj.v19.7124 https://doi.org/10.17561/tahrj.v18.6520 i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 13 the legal policy and the role of united nations organizations in granting educational rights to refugee children are based on the provisions of article 22 paragraph 1 of the 1989 convention on the rights of the child, namely: states parties must take appropriate steps to ensure that a child seeking refugee status or who is deemed to be a refugee in accordance with applicable international or domestic laws and procedures, receiving appropriate protection and humanitarian assistance under this convention and under international human rights. article 28 paragraph 1 namely: the states parties recognize the right of the child to education, and with the aim of achieving this right gradually and on the basis of equal opportunity. even though there are several international conventions mentioned above in fulfilling refugee rights, if analyzed with a comprehensive approach on several aspects there is an obstacle, namely the assimilation process that is not going well between local residents and international refugees which can also lead to social conflict. it is possible that there is a threat to security stability which is also one of the effects of the influx of refugees. however, in the case of handling refugee child education it is actually emphasized that morality in humanity must dominate policies in a country related to refugee protection and fulfilling the educational rights of refugee children. that there is an international organization that brings together countries in the world in a system of cooperation equipped with organs that can prevent or resolve disputes that occur.31 the position of international organizations as a subject of international law is now not in doubt. international organizations have rights and obligations stipulated in international conventions which are a kind of statutes,32 therefore the united nations as an international organization also has the rights and obligations as intended. improving the quality of human life so that they can contribute as a whole to the series of national development can be done, one of which is through the fulfillment of basic needs in the field of education.33 as an important indicator in improving the quality of human resources, education needs to be promoted by providing broad opportunities for the public to experience education and increasing the number and quality of supporting infrastructure that can support educational activities. seeing its quite important role in development in order to achieve prosperity, it encourages countries in the world to include education in the initial framework of the global development agenda.34 the united nations convention held in the year of the nation (un) in 1989, has declared children's rights and emphasized that all children have the right to education without discrimination in any form. the declaration was followed by the salamanca 31 boer mauna, 2008, international law-understanding, role, and function in the era of global dynamics, alumni, bandung, p. 458. 32 kusumaatmadja, mochtar & etty r. agoes, 2003, introduction to international law, alumni, bandung, p. 101. 33 ellissa priyanka, dudy heryadi, 2020, unicef collaboration with indonesia in achieving basic education for all as goal two of the mdgs, padjadjaran journal of international relations, vol. 2 no.1, p. 69. 34 ibid. https://doi.org/10.17561/tahrj.v21.7659 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 14 statement and framework for action on special needs education. the declaration states the obligation for schools to accommodate all children, including children who have physical, intellectual, social, emotional, linguistic or other abnormalities. schools must also provide educational services for children with disabilities and those who are gifted, street children, child labourers, children from remote or migrating communities, children from ethnic or cultural minorities, and other vulnerable children. in his analysis, finnemore states that international organizations are propagators of norms in the international system. one of the functions of international organizations is acting as actors, forums and instruments that contribute to the normative activities of the international political system.35 the role and legal policy of the united nations high commissioner for refugees (unhcr) is an international organization whose main mandate is to provide protection and provide assistance in the form of meeting the basic needs of asylum seekers and refugees, one of which is the fulfillment of education for refugees. furthermore, the role and legal policies of the united nations international children's emergency fund (unicef) focus on the rights and welfare of children in the world, including refugee children. unicef for every child is a concrete form of the movement and efforts of unicef as an international organization that has a vision and mission to guarantee the rights and protection of children around the world.36 unicef campaigns that every child has the right to obtain the right to education. further analysis of the role of international organizations dealing with refugees aims to reduce the impact of a refugee crisis that has the potential to cause stability in a country that accepts refugees, ethnic balance within the country, humanitarian issues related to health and education, work, exploitation of refugees, and stability of a country. 4. conclusion the role of the indonesian state in providing protection to refugees is implemented in the form regulation of director general of immigration number imi-0352.gr.02.07 concerning illegal immigration handlers declaring themselves as asylum seekers or refugees, temporary shelters (community houses) are other places where people are held. foreigners whose status has been determined by unhcr as refugees and with special needs. the transfer of detainees to the community house will be carried out if there is a recommendation letter from the directorate general of immigration for the director of immigration investigation and enforcement regarding approval for the transfer of detainees and then the letter is delivered to the iom (international organization for migration) to facilitate the transfer of the said detainee. the fulfilling right to education for rohingya refugee children in indonesia, based on law no. 39 of 1999 concerning human rights which has standards from the 35 finnemore, m., 1996, norms, culture, and world politics: insights from sociology’s institutionalism. international organization, 50(2), p. 325–347. 36 united nations international children's emergency fund (unicef), 2014. https://doi.org/10.17561/tahrj.v21.7659 i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 15 universal declaration of human rights, while for the protection of refugee children it is confirmed by law no. 35 of 2014 concerning child protection which is the signing and ratification of covention on the right of the child and presidential regulation no. 125 of 2016 concerning the handling of refugees from abroad which specifically regulates refugees. indonesia recognizes the rights of children as a whole in accordance with the agreements that have been stipulated in the declaration of the rights of the child and the convention on the rights of the child, because indonesia itself is an integral part in terms of international instruments on human rights, thus ratifying the convention on the rights of the child into decisions president number 26 of 1990, then indonesia has directly agreed to the entire contents of the convention in all actions against children in indonesia such as the state's obligation to protect children who are within its jurisdiction. upholding human rights in the educational context of refugee children in indonesia can be realized in the form of the right to education which refers to the provisions of government regulation no. 78 of 2021 concerning special protection for children, in article 6. indonesia ministry of education and culture circular letter no. 752553/a.a4/hk/2019 concerning fulfillment of the right to education for children of foreign refugees, has opened the way for school-age children of foreign refugees to pursue formal education in educational institutions. the policy of the indonesian government to fulfill the right to education for the children of overseas refugees should be appreciated. this is because indonesia has not ratified the 1951 convention on the status of refugees. acknowledgements research for this article relied on the author’s personal involvement in some of the cases examined. i would like to thanks bali1 law office indonesia division human rights for participation reference draft of this article. i would also like to thank editorial office the age of human rights journal for their comments and editing advice to improve the article. references adhi, p. n., agung, i. g. p., & gitareja, b.. 2021, challenge and opportunity to implement the right to education for child refugees in indonesia, in 1st international conference on law and human rights 2020 (iclhr 2020), atlantis press, vol. 549. afriansyah, a., & achjani zulfa, e., 2018, refugee resettlement: a review of indonesian laws and practices, indonesia law review, vol. 8 no. 2, p. 4. https:// doi.org/10.15742/ilrev.v8n2.489 agaptus nwozor, blessing okhillu, 2022, child’s rights and the challenges of educating the girl child: assesing the contributions of unicef in nigeria, the age of human rights journal, vol. 18, p.293. https://doi.org/10.17561/tahrj. v18.6520 https://doi.org/10.17561/tahrj.v21.7659 https://doi.org/10.15742/ilrev.v8n2.489 https://doi.org/10.15742/ilrev.v8n2.489 https://doi.org/10.17561/tahrj.v18.6520 https://doi.org/10.17561/tahrj.v18.6520 the fulfilling right to education for rohingya refugee children in indonesia the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 16 besson, s., 2005, the principle of non-discrimination in the convention on the rights of the children. international journal of children’s rights, vol. 13 no. 4. https:// core.ac.uk/download/pdf/20656988.pdf boer mauna, 2008, international law-understanding, role, and function in the era of global dynamics, alumni, bandung. ellissa priyanka, dudy heryadi, 2020, unicef collaboration with indonesia in achieving basic education for all as goal two of the mdgs, padjadjaran journal of international relations, vol. 2 n.1. fangary, e. a., 2021, a peculiar leap in the protection of asylum seekers: the inter-american court of human rights’ jurisprudence on the protection of asylum seekers, the age of human rights journal, (16), p. 31–53. https://doi. org/10.17561/tahrj.v16.6134 finnemore, m., 1996, norms, culture, and world politics: insights from sociology’s institutionalism. international organization, 50(2), pp. 325–347. i nyoman prabu buana rumiartha, ni luh gede astariyani & anak agung sagung ngurah indradewi, human rights of indigenous people in indonesia: a constitutional approach, journal east asia & international law, vol. 15/no.2 (2022); 395-402 https://doi.org/10.14330/jeail.2022.15.2.10 kolovos, pavlo., 2018, one year rohingya refugees live dire cramps facing uncertain future and legal limbo, msf.org , rohingya refugee crisis, http://www.msf.org/ kusumaatmadja, mochtar & etty r. agoes, 2003, introduction to international law, alumni, bandung. laurensius arliman, s., 2017, protection of children by society in terms of historical schools in the application of the principle of the best interest of the child in the life of children in indonesia, journal era hukum, vol. 15 no. 1. https://doi. org/10.24912/era%20hukum.v15i1.668 lee, ronan., 2021, myanmar’s rohingya genocide, london: bloomsbury publishing. nataliya hren, et. al., 2022, human rights and current discriminatory manifestations (on the example age discrimination in the social and communicative sphere), the age of human rights journal, vol. 19. p.72. https:// doi.org/10.17561/tahrj.v19.7124 peter mahmud marzuki, 2010, legal research, jakarta: kencana. primadasa, c. p., kurnia, m. p., & erawaty, r., 2021, problems in handling refugees in indonesia from the perspective of international refugee law, journal risalah hukum, vol. 17 no. 1. https://doi.org/10.30872/risalah.v17i1.380 rosyidin, m., & dir, 2020, why states do not impose sanctions: regional norms and indonesia’s diplomatic approach towards myanmar on the rohingya issue, international politics, p.7. https://doi.org/10.17561/tahrj.v21.7659 https://core.ac.uk/download/pdf/20656988.pdf https://core.ac.uk/download/pdf/20656988.pdf https://doi.org/10.17561/tahrj.v16.6134 https://doi.org/10.17561/tahrj.v16.6134 https://doi.org/10.14330/jeail.2022.15.2.10 http://www.msf.org/ https://doi.org/10.24912/era%20hukum.v15i1.668 https://doi.org/10.24912/era%20hukum.v15i1.668 https://doi.org/10.17561/tahrj.v19.7124 https://doi.org/10.17561/tahrj.v19.7124 https://doi.org/10.30872/risalah.v17i1.380 i nyoman prabu buana rumiartha, i gusti agung mas rwa jayantiari the age of human rights journal, 21 (december 2023), e7659 issn: 2340-9592 doi: 10.17561/tahrj.v21.7659 17 sekretariat kabinet republik indonesia, upaya penanganan pengungsi luar negeri di indonesia, https://setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-diindonesia/, diakses pada 17 februari 2021 shalihah, fitrianus. 2020. the protection of rights to education for the refugee children during the covid-19 pandemic. advances in social science, education and humanities research, vol. 499. atlantis press. smith, rhona k. m., 2005, textbook on international human rights, edisi kedua, oxford university press, new york. unhcr, 2021, indonesia country fact sheet. united nations international children's emergency fund (unicef), 2014. united nations, general comment no 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) valerie liany gabriela kondoy, 2020, indonesia's role in dealing with refugees related to the 1951 convention (the 1951 convention regarding the status of refugees), journal lex et societatis, vol. 8 no. 2, p.107-118. https://doi. org/10.35796/les.v8i2.28496 wagiman, 2012, international refugee law, jakarta: sinar graphic. yeni handayani, 2015, fulfilling the rights of rohingya refugees, journal rechtsvinding. yessi adeyna saputri, 2021, unicef's efforts in treating rohinggya child refugees in bangladesh in 2017-2018, ejournal ilmu hubungan internasional, vol. 9 no. 4, p. 660-673 http://ejournal.hi.fisip-unmul.ac.id received: 2nd january 2023 accepted: 21st september 2023 https://doi.org/10.17561/tahrj.v21.7659 https://setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-di-indonesia/ https://setkab.go.id/upaya-penanganan-pengungsi-luar-negeri-di-indonesia/ https://ejournal.unsrat.ac.id/v3/index.php/lexetsocietatis/index https://doi.org/10.35796/les.v8i2.28496 https://doi.org/10.35796/les.v8i2.28496 http://ejournal.hi.fisip-unmul.ac.id the fulfilling right to education for rohingya refugee children in indonesia abstract 1. introduction 2. research methods 3. discussion 3.1. the role of the indonesian government in providing education services for refugee children 3.2. the fulfilling right to education for rohingya refugee children in indonesia 3.3. refugee children's educational rights from an international legal perspective 4. conclusion acknowledgements references enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 545 enforced disappearance in peru: a step towards a national policy to search for disappeared persons agata serranò1 abstract: this paper aims to explore, firstly, what impact enforced disappearance -committed during the internal armed conflict which occurred between 1980 and 2000 in peruhad on victims’ family members. secondly, measures taken by the peruvian state for the search, exhumation, identification and restitution of the remains of disappeared persons will be examined. thanks to the analysis of qualitative interviews with leaders of associations dedicated to supporting family members of disappeared persons, this paper will analyse tthe needs of this group of people, which are still unmet and that constitute a future challenge for the peruvian state. keywords: transitional justice, disappeared persons, crimes against humanity, internal armed conflict, peru. summary: 1. material and methods. 2. enforced disappearance in peru: a crime against humanity. 3. the search for disappeared persons: a legacy bridging generations. 4. the humanitarian approach in the search for disappeared persons: a way to ensure the right to truth. 5. conclusions. 1. material and methods this research aims to answer the following research questions: what impact has enforced disappearance had on the relatives of those who have suffered from it in peru? what measures has the peruvian state taken in order to guarantee the search, exhumation, identification and restitution of the remains of disappeared persons to their loved ones? to answer these questions, this research involved carrying out in-depth qualitative interviews with leaders of associations that support relatives of the disappeared persons. given their work on the ground, we considered that leaders were particularly aware of the demands of this group of people as they are often relatives of the victims themselves. the interviews were conducted in 2018 in the peruvian cities of lima, ayacucho and trujillo. using indepth qualitative interviews has allowed us to understand the reality of the family members, and obtain a general overview of their perceptions regarding what they experienced and the protection received from the state. in fact, the goal of the technique of qualitative interviewing is to discover the perspective of the subject interviewed, understand their state of mind, their interpretations (corbetta, 2003, p. 343-373). michael patton affirms that “the aim of an interview is to understand how the subjects studied see the world, grasp their terminology and their way of reasoning, comprehend the complexity of their perceptions and individual experiences” (patton, 1990, p. 290). the main goal of a qualitative interview is to provide a framework within which an interviewee – via 1. ramón y cajal researcher, departament of political science and international relations, universidad autónoma de madrid, spain (agata.serrano@uam.es). mailto:agata.serrano%40uam.es?subject= enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 546 a conversation with the interviewer – can express how they feel in their own words. however, an interview should not only be considered a means of accessing knowledge about people’s behaviours and individual traits, but also a way of accessing knowledge about social phenomena (olaz, 2008, p. 26). our interview script was based mainly on the following key matters: — how the interviewee’s life was changed as a result of their relative/s disappearance and what actions they undertook to search for their family member/s; — the reaction by the family to the disappearance of a family member and by the socio-political environment; — the protection received (or the lack of it) from public institutions; — what needs/rights remain met/unmet; — the meaning of truth, memory and justice for a family member of a disappeared person; the type of qualitative interview we used was that of a semi-structured interview, as this modality allows interviewees to express themselves more freely. similarly, it gives the interviewer greater freedom as they are not necessarily obliged to follow a specific order in the way the questions addressing the relevant topics of the research are asked. although part of this research consisted in collecting and analysing primary sources using the qualitative interview research technique, in addition we consulted secondary sources, mainly in spanish and english, such as articles from specialised journals, books, legislation, institutional and/or private reports, judgements, newspaper articles, etc. as for the sample of interviewees, they are 8 leaders of the most active associations in the defence of the rights of disappeared persons who responded to our request for an interview. their associations are providing services especially in lima, ayacucho, two of the cities where very high levels of human rights violations were recorded. as we used the technique of qualitative interviewing, our goal was not to obtain a statistically representative sample. we did not, therefore, use criteria that would allow for proportionality between the number of interviewees and the total number of disappeared persons, nor did we aim for the sample to reproduce the characteristics of a given statistical population on a smaller scale. in order to fully understand the phenomenon studied, our goal was to gather a diverse sample of participants with different experiences of victimisation. this sample was gathered by adopting the “snowball sampling” technique according to which initial contacts with the first interviewees are usually provided by local entities that exist in the interviewee’s community and which are related to the topic being researched. in our case, these entities were associations and foundations of family members that we contacted, especially in lima and ayacucho, whose members/leaders agreed to be interviewed. this technique – used to approach groups that are particularly difficult to contact – allows the interviewer to obtain access to other possible participants thanks to contacts suggested by the initial interviewees. this is why, during our fieldwork, many interviewed put us in touch with others they knew personally (corbin & strauss, 2008). agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 547 the 8 participants were interviewed individually in spanish, avoiding direct questions that could hurt their sensitivity or lead to a re-victimisation, following the ethical criteria for qualitative interviewing of vulnerable subjects (varona, 2015). all of the interviews were recorded with the prior written and signed consent of each interviewee, who was informed of the objectives of the research. the interviews were accurately transcribed and a copy was given to each interviewee. given the sensitivity of the information that the interview might contain, the consent included the option of not revealing the identity of the participants. once transcribed, the interviews were analysed using atlas.ti 8 qualitative analysis software, allowing us to obtain a graphic representation of the testimonies that we will show in this article. we would like to stress that the interview excerpts chosen cannot be considered to be the official narrative of any association or group of victims interviewed. the choice of these interviewees over others involved no personal or collective discrimination. in fact, the main goal of this research is to divulge the tragedy of all the thousands of people who unjustly suffered this crime against humanity and not to exclude any of them. likewise, this research can be considered as a preliminary study and a starting point for future work, hopefully based on a larger fieldwork analysis. 2. enforced disappearance in peru: a crime against humanity before going into detail on the impact of enforced disappearance, it is important to underline that between 1980 and 2000, peru experienced a period of unprecedented violence known as the internal armed conflict which led to at least 69,280 fatalities (graph 1), according to the estimate by the truth and reconciliation commission (cvr), created in 2001 to shed light on these events (degregori, 2014). according to graph 2, those responsible for these victims were subversive groups, such as shining path (pcrsl; 54%) and the túpac amaru revolutionary movement (mrta; 1%); the police forces and the armed forces (agentes del estado; 36%); self-defence committees and rondas campesinas (cads; 2%), unknown and other actors (no determinados y otros; 7%)2. these actors committed different human rights violations, such as assassinations, arbitrary or extrajudicial executions, kidnappings, enforced disappearances and cruel, inhumane or degrading treatment or punishment, among others (graph 3). most of the victims were killed in the south-central region of peru, in particular from the departments of ayacucho, junín, huánuco, huancavelica and apurímac. however, the district of lima and the north-eastern and central amazon rainforest were also severely affected by the violence. these regions and areas accounted for 97% of the total number of victims, as well as the greatest number of attacks, destruction of infrastructure and loss of social capital. the majority of those killed were peasant farmers from the poorest and most marginalised areas of the country, quechua-speaking inhabitants from rural andean areas, and members of different indigenous communities from forest regions (cvr, 2003a, p. 12). 2. some scholars question the reliability of the truth and reconciliation commission estimations. on this issue, see the debate between rendon (2019) and manrique-vallier & ball (2019). enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 548 graph 1. estimated number of fatalities per year. source: cvr, 2003b, p. 22. graph 2. estimated percentage of number of victims caused by each group. source: cvr, 2003b, p. 21. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 549 graph 3. % of crimes and human rights violations and other incidents reported per each act3. source: cvr, 2003g, p. 274. of all the human rights violations committed during this period of violence, enforced disappearances were notably dramatic. the cvr initially reported that 8,558 persons had disappeared. it also cited the existence of 4,644 burial sites, of which 2,200 were located in the 10 departments most affected by the internal armed conflict (cvr, 2003b, p. 23). the work of the cvr has been continued by a number of institutions that have devoted themselves to recording and classifying disappeared persons. in 2007, for example, the peruvian team of forensic anthropology (epaf) submitted a report to the international committee of the red cross with the records of 13,271 disappearances. in 2008, the national coordinator for human rights (cnddhh) also presented a report that compiled 3,469 new cases in addition to those presented by the cvr, increasing the number of disappeared persons to 12,027 (comisedh, 2012, p. 3. in order of appearance in the graph 3, translated in english the crimes committed are: assassinations/ extrajudicial executions, arrests, torture, disappearances, kidnappings, injuries and bodily harm, recruitment by force, killed in confrontations, sexual violence, killed in attacks. enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 550 20). furthermore, in 2011, the legal medicine institute of the public prosecutor’s office of peru stated that 15,731 persons had disappeared during the internal armed conflict, 4,241 of whom were from the department of ayacucho alone (ministry of foreign affairs, 2012). from 2016 onwards, and thanks to law 30470 ‘law on the search for persons who disappeared during the period of violence 1980-2000’, the first steps for a future national policy were made to address these matters; thanks to this law, the general directorate for the search of disappeared persons (dgbpd) was created under the umbrella of the ministry of justice and human rights, which is in charge of the search process for disappeared persons. in 2018, this directorate created the national registry of disappeared persons and burial sites (renade), the first official centralised registry, which organised and investigated the data of more than twenty-thousand persons who were reported to have disappeared from 1980 to 2000. in its second statistical report (dgbpd, 2021), the dgbpd specified that disappeared persons in peru are 21,918. the whereabouts of 7,404 persons remains unknown or uncertain, while the whereabouts of 6,664 persons are allegedly known but there is no legal proof of their location. locating, exhuming, identifying and returning the remains to families constitutes a pending task for peru, and these latest – and unfortunately not yet final – figures, make it one of the countries with the most disappeared persons in latin america (lum, 2018). but what is enforced disappearance? the cvr defines enforced disappearance as: ‘the disappearance and deprivation of freedom of one or more persons by agents of the state or by those who act with its authorisation, support, or acquiescence, or by individuals or members of subversive organisations, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person’ (cvr, 2003c, p.114). enforced disappearance as a generalised and systematic practice is considered to be a crime against humanity by the statute of rome –that established the international criminal court – in its article 7, paragraph 1 (international criminal court, 1999). as can be seen in graph 4, enforced disappearance was a generalised practice particularly from 1983 to 1985 and from 1989 to 1993. the inter-american commission on human rights (coidh) concluded in its report (number 56/99) that: ‘[…] between 1989 and 1993, there existed in peru a systematic and selective practice of forced disappearances, carried out by agents of the peruvian state or were tolerated by said state. said official practice of enforced disappearances was part of the fight against subversion, although in many cases it harmed people who had nothing to do with the activities related to dissident groups’ (inter-american commission of human rights, report 56/99, par. 68). the process began with the victim being detained usually by masked and armed agents who would violently take the suspect to a police station or military location. there, the detainee was interrogated and almost always tortured in order to extract information that was eventually useful in the fight against subversiveness. sometimes they were released, but other times they were arbitrarily executed. in order to destroy the evidence of these executions, the bodies were made to disappeared or disposed of by mutilating them, incinerating the remains, throwing them into rivers or into other inaccessible places, burying them in mass graves or scattering body parts in different places to make identification difficult (cvr, 2003c, p. 114). moreover, enforced disappearance in peru was a systematic practice due to the existence of a complex power structure that devised, organised and carried it out: it was agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 551 graph 4. number of enforced disappearances reported to the cvr by year. source: cvr, 2003c, p. 81. done according to a standardised modus operandi that identified, selected and processed the victims, and also involved the disposal of their bodies, delegating these functions to different groups: to military officers, to police agents or to civilians. according to the cvr, it was possible to expand this systematic practice thanks to the broad authority held by military officers when states of emergency were declared, when respect for human rights within the framework of the fight against subversiveness was truly precarious (cvr, 2003c, p. 115). as can be seen in graph 5, the main group responsible for enforced disappearances was the peruvian army, followed by law enforcement and police agencies, the navy, rondas campesinas and self-defence committees4. in order to commit these types of criminal acts, whose goal was to defeat pcp-sl and mrta terrorism, a number of paramilitary groups were set up within the armed and police forces during the conflict. one of these was the colina group, whose members belonged to the peruvian army intelligence service (sie), which ‘carried out a state policy consisting of identifying, controlling and disposing of those suspected of belonging to insurgent groups or who opposed the regime of former president alberto fujimori, through systematic actions of indiscriminate extrajudicial executions, selective killings, enforced disappearances and torture’ (inter-american court of human rights, case of la cantuta vs. peru, 2006: paragraphs 40 and 80). 4. shining path (pcp-sl) was responsible for individual and collective murders (massacres) committed in particular in the rainforest and the peruvian andes and were a systematic and generalised practice, especially in the department of ayacucho. according to the cases reported to the cvr, pcp-sl was responsible for 11,021 murders and 1,543 enforced disappearances; this brings the number of victims attributed to this terrorist group to a total of 12,564 people, making it 1.7 times higher than the number of deaths and disappearances attributed to state agents, which amounts to 7,391 (cvr, 2003d, p. 20). enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 552 graph 5. percentage of cases of enforced disappearance per group responsible. source: cvr, 2003c, p. 81. in addition, the colina group was responsible for the barrios altos and la cantuta massacres (jara, 2013), for which the peruvian state was condemned by the inter-american court of human rights, and former president alberto fujimori was put in prison. furthermore, enforced disappearances could be perpetuated as a systematic practice also due to the inaction of the public prosecutor’s office to investigate and punish those responsible for the crimes committed, most of whom still remain unpunished and have not revealed the whereabouts of the victims (cvr, 2003c, p. 117). in fact, only some of these agents were convicted for having carried out this crime, as stated in report 159 of the ombudsman’s office, which states that up to 2008 only 339 people had been prosecuted, out of which 264 were in the army, 47 were in the peruvian national police, 17 were in the navy, and 11 were civilians convicted for crimes committed mainly in the city of ayacucho (ombudsman’s office, 2008, p. 139). 3. the search for disappeared persons: a legacy bridging generations a fact that must be highlighted – as can be seen in graph 6 – is that the fatalities and disappeared persons were mainly male: this means that a significant number of women witnessed the traumatic loss of family members and loved ones5. this is also confirmed in report 55 of the ombudsman’s office, according to which 87.8% of the victims of enforced disappearance in peru were male and 12.2% were female; 66.8% of the victims were between 15 and 34 years of age (ombudsman’s office, 2004, p. 65). enforced disappearance and/or assassination (plus other crimes committed against their family members) leads to significant personal and family trauma, not only because 5. for a critical approach on this issue, see ulfe & romio (2021), who proved that among victims of enforced disappearance there were many more women than those recorded by the truth and reconciliation commission. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 553 graph 6. violations against human rights reported to the cvr according to the sex of the victim6. source: cvr, 2003g, p. 273. of the void left by the loved one but also because of the sudden impact that said loss had on their lives, creating a before-and-after moment that can never be forgotten. in fact, because of the violence, many women were widowed and were obliged to become the head of the household, being responsible for the work in the fields, in addition to doing the housework and bringing up the children. their economic situation worsened drastically as they were not able to find a way to feed their fatherless children. these circumstances drove many children to start working at a very young age; it was impossible to go to school or they had to find the money to do so, sometimes not only for themselves but also for their younger siblings (alvites & alvites, 2007, 134 et seq.). faced with enforced disappearance or assassination, in many cases, the only way to stay safe was to move from the countryside to the city and, sometimes, from the city back to the countryside again, trying to continuously flee the advance of a changing enemy that one day could be a subversive group and the next day the armed forces, among others (chart 1). this can be seen in the following charts according to the testimonies of victims of subversive groups and human rights violations committed by state agents, we interviewed in peru in 2018, whose interviews we analysed with atlas.ti 8 qualitative research analysis software. 6. in order of appearance in the graph 7, translated in english the violations committed are: sexual violence, torture, injuries and bodily harm, killed in attacks, assassinations/extrajudicial executions, kidnappings, recruitment by force, arrests, disappearances. enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 554 according to these witness accounts, the disappearance or assassination of a family member led to multiple traumas, in particular for the women as they not only had to cope with the loss of a loved one, but also had to leave their homes and properties and flee, struggle with the cultural uprooting that forced displacement involves as well as the social stigmatisation in their new place of abode. at times, their andean or indigenous features, the fact that they were illiterate or hardly knew any spanish, had little money, were stigmatised because of the violence they had suffered, meant they had to endure social exclusion, discrimination and undeserved blame, both in the place they had left behind as well as in their new place to live (cvr, 2003e). chart 1. the violence of shining path and agents of the state forced many women to become displaced to save themselves. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conducted in peru. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 555 however, despite all the suffering they endured, during the conflict many peruvian women decided to react with resilience in the face of adversity, trying to improve their personal situation by working and studying in order to ensure a better future for themselves and their families. in this traditional society they had to overcome many challenges, as women were exclusively assigned the roles of ‘mother’ or ‘wife’, roles only associated with taking care of the home and rearing children (alvites & alvites, 2007, 134 et seq.). undoubtedly, one of the greatest challenges that peruvian women have had to face during the conflict and in the post-conflict period is the search for their disappeared relatives. this search has led them to visit hospitals, police stations, military bases, prisons and even morgues, exposing them to new crimes such as arrest, torture, threats, rape, among others. too often they have had to endure the blatant impunity enjoyed by the perpetrators, often state agents who concealed the truth from them and hindered them from obtaining justice (ortiz perea, 2017). at other times, their search led them to uncover the facts, and discover an inhumane and horrific truth: to destroy the evidence of the executions carried out, the bodies of their family members were mutilated, remains were incinerated or were thrown into rivers or into other inaccessible places, buried in mass graves, or body parts were scattered in different places to make identification difficult. that is the account given by marly (chart 2), whose brother kenneth ney anzualdo castro disappeared in 1993 and was taken – together with his friend martin javier roca casas – to the basement of a building in lima known as the ‘pentagonito’ (little pentagon); this was the headquarters of the army intelligence service (sie), where many disappeared persons were incinerated in crematorium ovens. these facts were corroborated by peru’s supreme court in 2016 when it tried vladimiro montesinos torres, nicolás de bari hermoza río and jorge enrique nadal paiva – members of the peruvian army intelligence service – and found them guilty of being mediate perpetrators of the crime of enforced disappearance (supreme court of justice of the republic of peru, 2016). the ruling of the supreme court complied with the internal judicial process, as the inter-american court of human rights (coidh) had ordered the peruvian state to do in the case of anzualdo castro vs. peru7. however, due to the fact that the remains were incinerated, other very important aspects of the interamerican court of human rights ruling have not been fulfilled, such as the location, exhumation, identification and return of the mortal remains of the disappeared persons to their family members (supreme court of justice of the republic of peru, 2016). a similar case is that of adelina garcía mendoza, whose husband (chart 2), zósimo tenorio prado, was disappeared in 1983. he was tortured at the domingo ayarza barracks, better known as ‘los cabitos’, in ayacucho. in 2017, the national criminal court of the supreme court issued a historic judgement with regard to the violations of human rights carried out at this barracks, proving that in the 1980s hundreds of people were arbitrarily arrested and tortured in order to make them confess to their alleged affiliation to shining path, before disappearing. furthermore, it was proved that at ‘la hoyada’, an area adjacent to ‘los cabitos’, mass graves were found, where 109 people had been 7. anzualdo castro vs. peru (coidh ruling, 22 september 2009). enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 556 buried. it was also proved that a crematorium oven had existed there, used to incinerate the remains of victims to make their bodies definitively disappear. in this very same place, despite the terrible discoveries, the family members are fighting to create a sanctuary of memory at la hoyada so that their loved ones will be remembered. the ruling finally sentenced pedro paz avendaño, head of the intelligence detachment of ayacucho, to 23 years in prison, and humberto orbegozo talavera, head of ‘los cabitos’ barracks to 30 years (reyes, 2017). these are just some of the thousands of stories that have been forgotten for decades and are still unknown; stories of women who, in addition to having suffered the loss of a loved one, were subjected to numerous re-victimisations or secondary victimisations (echeburúa & gerrica, 2006, p.198) because not only did they suffer harm and a violation of their rights, but they were also humiliated, blamed by the perpetrators; ignored and unprotected by public authorities; and marginalised, excluded and stigmatised by the rest of civil society. chart 2. in some cases, the search for disappeared family members led peruvian women to discover an abhorrent truth. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conducted in peru. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 557 however, despite the repeated victimisations they suffered, during the internal armed conflict the mothers, wives, siblings and children of the victims of violence, in addition to saving their own lives, tried to help each other by creating ties of solidarity among themselves. this mutual help led to the emergence of a human rights movement, whose aim was to address different urgent matters, among which were: finding disappeared family members; and advocating public policies to support rights regarding the truth, justice, memory and reparation (cvr, 2003f, p. 295). with these main goals, these women and their family members gave rise to a human rights movement that involved different associations. in 1983, after the armed forces entered ayacucho, the association for the defence of human rights in peru (aprodeh) was set up and which, even today, offers numerous services, including legal aid to the family members of victims. thanks to their work – and that of many other associations offering legal aid to the family members of victims – many cases have been tried in court with the aim of ending the impunity of those responsible for the violations committed and obtaining justice. in many cases, the inter-american court of human rights has condemned the state of peru; it has issued 29 rulings, most of which were linked to acts committed during the internal armed conflict. consequently, as of today, of all the states that ratified the american convention on human rights (cadh), peru is the country most condemned for violations against human rights (ugarte boluarte, 2014). these rulings confirm that the state of peru, by committing assassination, carrying out massacres and arbitrary executions, among other practices, notably violated the right to life. similarly, by torturing and inflicting other cruel, inhumane and degrading treatment it specifically infringed the right to physical and moral integrity; by kidnapping and enforced disappearances it notably violated the right to personal freedom; by carrying out trials with ‘faceless judges’ it violated the right to due process (salado osuna, 2004). in 1985, the national human rights coordinator was set up. bringing together a number of associations, it became an effective instrument for victims to find support and legal advice; a point of reference, which, however, over the years has weakened (cvr, 2003f, p. 295). meanwhile, in ayacucho, in 1983, the first organisation of women and family members of those who disappeared was set up: the national association of relatives of kidnapped, detained and disappeared persons (anfasep). as explained in chart 3 by its current president, adelina garcía mendoza, its goals include caring for fatherless children and their mothers who left the countryside fleeing the violence, by setting up a communal canteen; trying to find disappeared family members; publicly denounce the crimes committed via peaceful demonstrations, protests, marches and all kinds of activities to create awareness in civil society and to public authorities on the need for truth and reparation for the family members of disappeared persons. furthermore, anfasep was the first peruvian association to set up a museum of memory in ayacucho so that the thousands of family members brutally taken by the conflict are not forgotten. this museum has been visited by scholars from around the world, yet regrettably continues to be attacked by a sector of the population, which, from the start, has tried to weaken the strength of the human rights movement (crisóstomo, 2019, p. 129). today, sadly, many of the mothers/women who founded this association have died without having found the bodies of their loved ones. enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 558 chart 3. the search for disappeared family members led women to associate and fight for their rights to be respected. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conducted in peru. their tireless search has often been inherited by the next generation, a mission for the children who supported them on the gigantic undertaking they endured. as can be seen from chart 4, some of them have been able to pick up the baton and continue fighting in the name of their family members; others, unfortunately, for various reasons have not been able to continue with the burdensome task they inherited. however, it is important to stress that when the responsibility for searching for disappeared persons – and finding their remains – falls on family members, it constitutes a serious re-victimisation for them because the search for their loved ones is an obligation of the state, which should guarantee their right to truth, justice, memory and reparation. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 559 chart 4. the search for disappeared family members has been inherited by the next generation. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conduc ted in peru. 4. the humanitarian approach in the search for disappeared persons: a way to ensure the right to truth in the post-conflict era, despite the permanent stigmatisation to which they were exposed, the leaders of the human rights movement contributed to the setting up of the truth and reconciliation commission (cvr), in which – for the first time ever – some 16,000 people offered their testimony, revealing the horrors to which they were subjected during the conflict. the cvr report endorsed many of the movement’s demands, recommending, among other issues, the adoption of specific policies for reparation. enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 560 in light of the cvr’s recommendations, a reparation policy was implemented in 2005 via law 28592 (approval of the comprehensive reparation plan for victims of violence). thanks to this legislative instrument, the following were created: the high level multisectoral commission (cman) that is in charge of monitoring the state’s actions and policies in the areas of peace, collective reparation and reconciliation (ulfe, 2013); the reparations council (cr), in charge of creating the central registry of victims (ruv) and of the accreditation, identification and individualisation of victims and different reparation programmes (collective reparations for the more than 600,000 displaced persons throughout the country who had to leave their land and homes due to violence by armed groups); and the individual economic reparations programme (prei), in charge of reparations regarding health and education, symbolic reparations, access to and support for housing, and the restitution of rights (lerner febres, 2007). in addition to demands for reparations, which have been insufficiently implemented so far (iris jave, 2021), another very important claim made by family members of disappeared persons is, without a doubt, knowing the truth about what happened to their loved ones, finding their whereabouts and, when possible, to have their mortal remains returned to them. on the one hand, it is essential for family members to know the truth about what happened to their loved ones in order to be able accept their loss, cope with their absence and obtain closure (chart 5). on the other hand, it is crucial to close this open wound not only on a personal level but also for civil society. however, it should be noted that, in interviews by family members, the need to know the truth about what happened is not necessarily accompanied by a demand to obtain full judicial truth that would allow the identification of those responsible and for them to be judged and punished. in fact, as can be seen in charts 5 and 6, the greatest need of family members of disappeared persons is the recovery of the human remains of their loved ones (losonczy & robin, 2021). according to the account of gisela ortiz, director of operations of the peruvian team of forensic anthropology (epaf), in chart 6, this is why the human rights movement – advised by teams of experts – promoted the adoption of the humanitarian approach to the search for disappeared persons during the post-conflict era (iris jave, 2018). the main goal and priority of this approach is to satisfy the right to truth for family members and their need for closure; it aims to try to clarify what happened and, when possible, locate, exhume and return the remains of their loved ones, regardless of whether the perpetrators of that crime are identified, tried and convicted (epaf & cnddhh, 2008). in line with this approach, thanks to the tireless and peaceful struggle of family members of the disappeared persons, “law 30470 on the search for persons who disappeared during the violence of 1980-2000” was passed in 2016. this law aims to search for, recover, analyse, identify and return the human remains of disappeared persons by adopting the humanitarian approach. article 2 of said law understands the humanitarian approach to be: ‘the attention focused on relieving suffering, uncertainty and the need to offer answers to the family members of the disappeared persons. prioritising a humanitarian approach means guiding the search to the recovery, identification, restitution and dignified burial of the human remains of the disappeared persons in such a way that it has a restorative effect for the families, yet without encouraging or hindering the attribution of criminal responsibilities’ (law 30470, art.2). agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 561 chart 5. the need to find the body of the disappeared family member is essential to obtain closure. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conducted in peru. before said law was approved, the search process for disappeared persons was only carried out when the public prosecutor’s office had evidence on the whereabouts of a disappeared person while a case was being investigated. the location, exhumation and identification of disappeared persons therefore occurred exclusively within the framework of a judicial investigation. following the approval of law 30470, the process of searching for disappeared persons is now under the competence of the directorate for the search for disappeared persons (dgbpd) under the umbrella of the ministry of justice and human rights and consists of three phases, formalised via the ‘directive to standardise the process of searching for disappeared persons with a humanitarian approach’ (directive 0012017jus/vmdhaj-dgbpd). in the first phase, the dgbpd carries out a humanitarian investigation that consists of all the investigative actions undertaken to generate, compile, verify and analyse information regarding contexts and circumstances related to cases of disappeared persons. during this phase, a non-judicial investigation is carried out on the specific case and focuses on areas and contexts, conducting in-situ interviews, creating a psychosocial diagnosis and identifying, evaluating and recording possible burial sites where the person/s being searched for might be found. the second phase involves a joint intervention with the public prosecutor’s office: it consists of all the actions which are carried out to recover, analyse and evaluate the enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 562 chart 6. choosing the humanitarian approach to ensure the right to truth. source: own work done with atlas.ti 8 qualitative research analysis software, based on qualitative interviews conducted in peru. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 563 evidence, which, after being scientifically analysed, may allow disappeared persons to be identified and returned to their family members in order for them to be buried with dignity. in this phase, the two institutions work together to identify burial sites and exhume the remains, analyse the skeletal remains and other evidence, and carry out their identification process. this identification process is now more effective thanks to the approval of the 1398 legislative decree of 2018, which allowed the dgbpd to create a genetic data bank that allows the dna of the family members of the victims to be compared with the skeletal remains found in mass graves (el comercio, 2018). the third phase – which the dgbpd is in charge of – corresponds to the end of the process. in this phase, family members are informed about the fate of their loved ones, family reunions are organised (if the disappeared person has been found alive), human remains are returned (if they are found), symbolic ceremonies are held (in cases where bodies are not exhumed or not found), as are ceremonies to mark the end of the search process. thanks to the adoption of this humanitarian approach, the dgbpd offers family members psychosocial support throughout the search process, i.e. a set of actions on an individual, family, community and/or social level that are aimed at preventing, addressing and coping with the psychosocial impact of the disappearance, which also helps the search process for disappeared persons to be carried out. family members are supported at every stage of the forensic investigation and during the return of any remains to ensure their recovery and emotional well-being (law 30470, art.2, letter e). in addition, the dgbpd coordinates a set of actions implemented by different sectors of the state so that family members can participate in the processes to search for, recover, analyse, identify, return and bury the remains of disappeared persons with dignity (material and logistical support to family members). therefore, thanks to the approval of law 30470, and the consequent adoption of the humanitarian approach, the process of searching for disappeared persons is no longer exclusively linked to a judicial investigation but is more focused on ensuring the right to truth for family members, regardless of whether or not there is an ongoing judicial investigation. notwithstanding the steps that have been taken to design a policy for the search for disappeared persons and reparations in peru, there remain different challenges that need to be addressed in the near future. in fact, in spite of having institutionalised the search process the challenge that needs to be addressed is that a massive amount of work still remains to be done before family members can enjoy a full right to the truth as the whereabouts of many thousands of disappeared persons are still unknown. finally, the covid-19 pandemic is also making this process extremely difficult due, on the one hand, to restricted mobility and, on the other, because of cuts in the budget allocated to the search for disappeared persons. enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 564 5. conclusions this paper, firstly, has examined how enforced disappearance manifested itself in peru during the internal armed conflict (1980-2000), its modus operandi and why it is considered to be a crime against humanity. secondly, via the testimonies of leaders of associations who are fighting to defend human rights, the experience of family members in relation with their need to know the truth about what happened and to recover the mortal remains of their loved ones have been explored. thirdly and finally, we have studied how the peruvian state has tried to satisfy said demands of the human rights movement via the approval of law 30470 and by adopting a search process with a humanitarian approach. answering to the first research question, the impact of enforced disappearance on the relatives of victims has been particularly traumatic in peru, especially for women. actually, since victims of enforced disappearance were mostly male, women suffered multiple losses, having had to cope not only with the absence of a loved one, but also with the family burden alone, often dealing with forced displacement and social stigmatisation in the new place of residence. undoubtedly, one of the greatest challenges that peruvian women have had to face during the conflict and in the post-conflict period is the search for their disappeared relatives. this search has led them to visit hospitals, police stations, military bases, prisons and even morgues, exposing them to new crimes such as arrest, torture, threats, rape, among others. too often they have had to endure the blatant impunity enjoyed by the perpetrators, often state agents who concealed the truth from them and hindered them from obtaining justice. at other times, their search led them to uncover the facts, and discover an inhumane and horrific truth. however, thanks to the analysis of the interviews we carried out in peru, it can be concluded that, despite all the injustices suffered, many of them have fought against impunity, being a civic example, leading the creation of a peaceful movement in defence of human rights which, on the one hand, has tried to overcome the state's neglect of those affected and, on the other hand, has fought and continues to fight for greater effectiveness of the rights to truth, justice, memory and reparation. in response to our second research question, the measures taken by the peruvian state in order to guarantee the search, exhumation, identification and restitution of the remains of disappeared persons are innovative but unfortunately still insufficient. despite the steps that have been taken to design a national policy for the search for disappeared persons and reparations in peru, this paper concludes that at least two urgent challenges still need to be addressed in the near future. firstly, a huge amount of work remains to be done in order for family members to recover the remains of disappeared persons as the whereabouts of many thousands of disappeared persons are still unknown. coping with the consequences of the covid-19 pandemic is the second challenge that must be stressed; it is making the search process much more difficult due to restricted mobility and cuts in the budget allocated to it. agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 565 the partial results obtained in this preliminary research certainly constitute a starting point for further work to explore how to consolidate the national policy of searching for missing persons in peru in order to guarantee the right to truth to their families. references primary sources interview with adelina garcía mendoza, wife of zósimo tenorio prado who went disappeared in 1983 and was tortured at the los cabitos military barracks. she is the president of the national association of relatives of kidnapped, detained and disappeared persons (anfasep). the interview was conducted in ayacucho (peru) in 2018. interview with gisela ortiz perea, sister of luis enrique who went disappeared in 1992 from la cantuta university (lima). she is the director of operations for the peruvian team of forensic anthropology (epaf), a renowned human rights activist and a family member of victims of the ‘la cantuta’ case. the interview was conducted in lima (peru) in 2018. interview with janet matta villacrez, daughter of oscar hugo matta tello who was killed by shining path in 1988. she is the director of the human rights commission (comisedh). the interview was conducted in ayacucho (peru) in 2018. interview with marly anzualdo castro, sister of kenneth ney who was disappeared by the members of the army intelligence service (sie) in 1993. the interview was conducted in lima (peru) in 2018. interview with nelly ramirez, an employee of the association for the defence of human rights in peru (aprodeh). the interview was conducted in ayacucho (peru) in 2018. luyeva yangali, daughter of efrén yangali who was disappeared in 1988 in the department of huancavelica together with his brother rómulo yangali and his cousin fortunato yangali by members of the national police force. she is the president of the national association of family members of people killed, disappeared, killed extrajudicially, displaced and tortured (anfadet casos cidh). the interview was conducted in lima (peru) in 2018. gonzalo vereau, son of lester joaquin vereau luján, was kidnapped and tortured, and was disappeared on 21 july, 1983, together with five other people in curgos (department of la libertad) by members of the police force. the interview was conducted in trujillo (peru). javier tineo vargas, son of javier tineo de la cruz, kidnapped and disappeared on 1 may, 1987, in cochapata (department of ayacucho) by agents of the peruvian army. he enforced disappearance in peru: a step towards a national policy to search for disappeared persons the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 566 is the president of the regional coordinating committee of those affected by political violence (coravip ayacucho). the interview was conducted in ayacucho (peru). secondary sources alvites e. & alvites l., mujer y violencia política. notas sobre el impacto del conflicto armado interno peruano. feminismo/s, (9) 2007, pp. 121-137. https://doi. org/10.14198/fem.2007.9.09 corbetta p. 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(2019), reality and risk: a refutation of s. rendón’s analysis of the peruvian truth and reconciliation commission’s conflict mortality study, research and politics, (1) 1–5. https://doi.org/10.1177/2053168019835628 ministerio de relaciones exteriores (2012). documento de trabajo sobre las medidas adoptadas por diferentes sectores en relación a la resolución ag/res (xli-o/11) “las personas desaparecidas y la asistencia a sus familiares”. lima: ministerio de relaciones exteriores. olaz a. (2008), la entrevista en profundidad, oviedo: septem ediciones. ombudsman office (2008). a 5 años de los procesos de reparación y justicia en el perú. balance y desafíos de una tarea pendiente. lima: ombudsman office. ombudsman office (2004). violencia política en el perú: 1980-1996. un acercamiento desde la perspectiva de género. lima: ombudsman office. ortiz perea, g. (2017). hasta encontrarlos. la identidad como derecho: retos y lecciones en la búsqueda de los desaparecidos en el perú. revista memoria (23), idehpucp, ed., pp. 9-19. patton, m. q. (1990), qualitative evaluation and research methods, newbury park: sage publication. reyes, v. (21 de agosto de 2017). justicia para las víctimas de los cabitos, un análisis del fallo, lima, idehpucp. obtenido de https://idehpucp.pucp.edu.pe/notasinformativas/justicia-las-victimas-los-cabitos-analisis-del-fallo/ rendon s. (2019), capturing correctly: a reanalysis of the indirect capture–recapture methods in the peruvian truth and reconciliation commission, research and politics, (1) 1–8. https://doi.org/10.1177/2053168018820375 salado osuna, a. (2004). los casos peruanos ante la corte interamericana de derechos humanos. trujillo: normas legales. supreme court of justice of the republic of peru (2016), sótanos del sie case, supreme court of justice of the republic of peru judgement. available in: https://doi. org/10.51378/eca.v71i746.3188 ugarte boluarte, r. (2014). los derechos humanos en el perú: una mirada al cumplimiento de las sentencias supranacionales dictadas por la corte idh vs. el perú. revista lex, xii(14). https://doi.org/10.21503/lex.v12i14.636 ulfe m. e. (2013). ¿y después de la violencia qué queda? victimas, ciudadanos y reparaciones enel contexto post-cvr en el perú. buenos aires: clacso. ulfe, m.e. & romio s. (2021), “género y violencia: desmontando el perfil de víctima del informe final de la comisión de la verdad y reconciliación en perú”, en gómez d., bernal a., gonzález j., et al (eds.), comisiones de la verdad y género en países del sur global: miradas decoloniales, retrospectivas y prospectivas de la justicia transicional. bogotá: universidad de los andes, pp. 373-410. https://doi.org/10.1177/2053168019835628 https://idehpucp.pucp.edu.pe/notas-informativas/justicia-las-victimas-los-cabitos-analisis-del-fallo https://idehpucp.pucp.edu.pe/notas-informativas/justicia-las-victimas-los-cabitos-analisis-del-fallo https://doi.org/10.1177/2053168018820375 https://doi.org/10.51378/eca.v71i746.3188 https://doi.org/10.51378/eca.v71i746.3188 https://doi.org/10.21503/lex.v12i14.636 agata serranò the age of human rights journal, 18 (june 2022) pp. 545-569 issn: 2340-9592 doi: 10.17561/tahrj.v18.6898 569 varona g. (2015), guía general de buenas prácticas en el trato con víctimas del terrorismo que evite la victimización secundaria. san sebastián: instituto vasco de criminología. y gobierno vasco, secretaría general para la paz y la convivencia. https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/ adjuntos/guia_general_buenas_practicas.pdf received: january 4th 2022 accepted: april 14th 2022 https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/adjuntos/guia_general_buenas_practicas.pdf https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/adjuntos/guia_general_buenas_practicas.pdf enforced disappearance in peru: a step towards a national policy to search for disappeared perso abstract 1. material and methods 2. enforced disappearance in peru: a crime against humanity 3. the search for disappeared persons: a legacy bridging generations 4. the humanitarian approach in the search for disappeared persons: a way to ensure the right to 5. conclusions references primary sources secondary sources intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 105 intersex in italy: at the source of the complexity?* anna lorenzetti** abstract: focusing on the italian legal scenario, this paper examines medical practices that impose cosmetic surgeries on intersex children. carried out with the aim of adjusting their genitalia to a perfect male or female body, these practices infringe upon the fundamental rights of the children subjected to them and demand new ways of protection. the paper explores the legal approaches that could be adopted to challenge them and to ensure the protection of children’s rights. keywords: intersex, fundamental rights, medical practices, parental consent, selective abortions. summary: 1. introduction. 2. intersex people in italy. 2.1. medical practices and protocols. 2.2. sex assignment in the italian legal scenario. 2.3. parental decisions and the infringement of the best interests of the child: parental consent and selective abortions. 2.4. language and recognition strategies. 3. suggestions on how to protect intersex people. 4. conclusion. 1. introduction this paper analyses the legal situation of intersex persons in italy. it analyses in particular the practice of performing cosmetic surgeries on children, aimed at normalising their genitalia and bodies. the aim of these medical procedures is, as said, purely cosmetic: it is to alter the genitalia of intersex children so that their bodies can conform with a ‘perfect’ male or female body. this paper takes the perspective of the best interests of the child to analyse these procedures as they stand within the italian legal framework. the absence of a specific legal framework designed to protect intersex people renders them particularly vulnerable, leaving them in a state of social and legal frailty. in fact, intersexuality is not explicitly recognised as a ground of discrimination in the italian legal system, nor does this offer specific tools of protection. this exclusion has deep theoretical roots. from a theoretical point of view, intersexuality challenges traditional notions of sex, gender and sexual orientation, something which italian law has not welcomed so far.1 the italian legal system is rooted in a binary logic, which states that *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. **associate professor of constitutional law (department of law), university of bergamo, italy (anna. lorenzetti@unibg.it). 1. for instance, also in italian legal feminist academia, the binary structure continues to be considered as strictly ‘necessary’. pitch (1998) significantly speaks of un diritto per due, a right for two, which presumes the male/female gender dichotomy. intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 106 every person must be either a man or a woman, either female or male, and thus indirectly imposes early surgeries aimed at normalising the bodies which do not conform to these binary male/female standards. intersex people are treated as inferior, as bodies to be corrected, at the most or as subjects of welfare, health, charity or public programmes. instead of this, the constitutional principle of equality could and should guarantee intersex people their position as autonomous individuals with self-standing rights and freedoms. doing so implies undermining the power structures which define a perfect body – i.e., a body that perfectly conforms to what is considered to be male or female–, which take it as a ‘parameter’ of what is ‘normal’ and define other bodies as ‘not normal’, assumed to be inferior. overcoming the male-female dichotomy could subvert the oppression of intersex persons and, at the same time, recognise the intersex condition as a variance of human beings. this would lead to granting intersex persons rights and freedoms guaranteeing their autonomy, in particular the right to oppose medical practices which harm their genitalia. in addressing the condition of intersex persons, this paper attempts to take a look into ways to overcome said harmful practises, in order to guarantee respect for human dignity. 2. intersex people in italy in the italian legal culture intersex children are considered abnormal and different because they do not fit within the binary male vs. female model. as a consequence, they are subject to normalising surgeries, aimed at making their bodies fit into the male/female dichotomy. their bodies are considered to be in need of repair. as a result, intersex children are assumed to be inferior to children unambiguously born as male or female. despite the invasive medical procedures carried out in italy to normalise intersex bodies, and despite the lack of a substantive legal framework protecting the rights of intersex people, academic debates on these issues are here very limited. the issues that intersex people face have only aroused academic interest in the last ten years,2 during which scholars have organised and delivered seminars,3 2. in 2006, an international medical conference on intersex was held in rome (cola and crocetti 2011). 3. the research centre politesse (politics and theories of sexuality) of the department of philosophy, education and psychology, university of verona organised many seminars between 2013 and 2015: “intersex/dsd: biopolitics of gender, normalization and subjectivation” (literally, intersex/dsd: biopolitica del genere, patologizzazione, normalizzazione medica e processi di soggettivazione), with michela balocchi and beatrice busi (9 october 2013) on the historical and sociological analysis of people with dsd/intersex conditions; “male or female? is sexual binarism a legal must?” (literally, maschio o femmina? il binarismo sessuale è davvero indispensabile al diritto?), with anna lorenzetti, alessandra cordiano and matteo nicolini (6 december 2013) on the legal issues; “intersex/dsd: medicalization and political subjectivation”, (literally, intersex/dsd: medicalizzazione e soggettivazione politica, with elisa a.g. arfini and alessandro comeni (14 february 2014) on critique of the abuse of intersexuality as a rhetorical device to explain the social construction of gender and on the intersex movement; “intersex: international developments” (5 may 2015) lecture of morgan carpenter (oiil australia). anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 107 conferences,4 academic articles in a variety of disciplines,5 as anthropology (crocetti 2010, 2013), sociology (balocchi 2012, 2015, 2019), philosophy (bernini 2010, 2015; busi 2005, 2009, 2012) and law (osella 2016; lorenzetti 2013b; 2015; 2019). however, legal and empirical studies concerned with the normalising surgeries performed on children and the effects they have on them are still underdeveloped in italy. the lack of further and deeper academic and public debates contributes to feed the strong legal barriers faced by intersex children, who remain confined to cultural and social invisibility. 2.1. medical practices and protocols in order to fully grasp the complexity of intersex issues, it is important to analyse italian procedures and medical protocols for normalising surgeries. invasive cosmetic surgeries on intersex children are still performed in many italian hospitals. for example, female infants born with a clitoris that is considered to be ‘too large’ often receive clitoral reduction surgery.6 similar interventions are performed on children born with a penis which appears atypical or smaller ‘than the norm’. in general, surgeries on intersex children are performed following heteronormative rules:7 the protocols used in italy require that children to be raised as males should be able to engage in heterosexual activity as adults (by penetrating a female’s vagina). following the surgery, male (xy) children with functional testicles often see their ability to reproduce destroyed, a preferred option to having a penis that is considered smaller than the norm. for females, on the other hand, emphasis is placed on maintaining their reproductive capacity. early surgery is based on the assumption, not supported by evidence (greenberg 2012: 21; chase 1997; diamond, glenn beh, 2006: 103; diamond, garland 2014: 2-7; diamond, sigmundson 1997; dreger et al. 2005: 729-733), that irreparable emotional and psychological trauma will derive from the child’s growing up with atypical genitalia. another reason encouraging surgery is the idea that abnormal bodies need to be repaired 4. the first conference on intersexuality was held in florence on 24 september 2010 with the title “intersexuality in the italian society” (literally, l’intersessualità nella società italiana; in 2013 (16 november); in bologna there was a conference on the “medicalisation of gender body: intersexuality and dsd” (literally, “medicalizzazione del corpo di genere: intersessualità e dsd”); recently, in 2015 (1011 april) in perugia, there was the first legal conference on the intersex issues (the title was “intersexualism and the law: equality, rights, protections”, literally, intersessualismo e diritto: uguaglianza, diritti, tutele) organised by the association avvocatura per i diritti lgbti – rete lenford. 5. see conference proceedings of the national seminar on “intersexuality in the italian society” (literally, l’intersessualità nella società italiana) (balocchi 2015). 6. doctors would remove the clitoris or reduce it to a size that they considered acceptable, even though the surgery might diminish or destroy the person’s ability to engage in satisfactory sex. 7. similarly, this happens in others countries (greenberg 2012; sytsma 2006). in fact, according to greenberg (2012: 5), “although most intersex conditions are not disabling, pose no physical risk and require no medical intervention, infants with an intersex condition are often subjected to invasive cosmetic surgeries to alter their genitalia so that their bodies conform to a binary sex norm”. intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 108 and the only appropriate tool to achieve this is surgery.8 a further motivation for normalising the child’s body is to ease the psychological discomfort of parents and to enhance their ability to bond with their child. because intersex children are considered atypical and in some way abnormal, their condition is hidden from society and their birth is shrouded in shame and secrecy. parents are often not correctly informed and when some information is provided they are often advised not to tell their children of their intersex condition or medical history (streuli et all 2013; greenberg 2012; sytsma 2006). although health is recognised as a fundamental right in italy,9 there are medical procedures which attempt to eliminate evidence of intersexuality by surgically altering infants, so that they conform or blend into a medically created definition of ‘normal’ genitalia. this creates a double paradox. first, the medical and surgical therapy does not resolve the problem, because the person remains intersex for the rest of their life. in fact, only the body and the external genitalia can be modified, but this does not (and will never) change the intersexual condition, which cannot be totally eliminated (think for instance of chromosomes). secondly, according to some studies, the person’s health gets worse after the therapy (greenberg 2012: 18). in fact, surgical interventions cause more physical and psychological trauma to intersex persons than letting them grow up with atypical genitalia. also, surgery may lead (and usually leads) to irreversible harm on the bodies which are physically violated. the studies carried out on intersex people who have been subjected to early surgeries recognise not only the stigma and the psychological trauma, but also lifelong physical complications, without proof of any benefit to the child. indeed, these medical procedures often lead to a significant number of problems: they may result in infections, scarring, genital pain or discomfort, incontinence, and other severe physical complications; they also may render women incapable of experiencing an orgasm. 8. recently, see an information brochure on cah, congenital adrenal hyperplasia, (i.s.c., opuscolo informativo) ellaborated by an association of parents and supported by one of the most important italian private hospitals (san raffaele hospital, milan, lombardy region); many italian famous medicine societies supported it: italian society of pediatrics (sip), italian society of preventive and sociale pediatrics (sipps), italian society of pediatrics, endocrinology and diabetology (siedp); italian society of adolescence medicine (sima). it stresses that medical therapy is not enough to correct external genitalia anomalies. therefore, it is necessary to undergo surgery in order to reduce the clitoris and to correct the aspect of the vagina. it also stresses that, generally, surgery should be performed in the first year, to avoid that the child could be disturbed by confusing genitalia. it also refers to the eventual “revision” of surgery during puberty: thus, it implicitly admits that there are additional surgeries to be performed. the goal of the early surgery (or, rather, surgeries) is twofold, on the one hand to correct the anatomic alteration (cosmetic aspect) and on the other to allow for normal sexual intercourse (functional aspect); p. 16. 9. in the italian constitution, see article 32. in the eu context, access to health and social services is considered as a fundamental right and a key element of the so-called european social model and of the national welfare state model, as it is explicitly stated in several member state constitutions and incorporated into the european union charter of fundamental rights (article 35). we should also consider the united nations convention on the rights of the child. anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 109 medical procedures performed on intersex children may also cause cosmetically unacceptable genitalia that create a sense of rejection in the person (greenberg 2012; sytsma 2006). finally, additional surgeries are often required for several years after birth in order to allow the genitals to conform to the body’s natural growth, and the person is forced to live a pathologised life. in fact, for the rest of their lives intersex persons receive medical checks (or operations) and take hormones that are no longer naturally produced after the operations, because of the ablation of glands and gonads. in addition, persons who take hormones suffer changes of behaviour and temper, and psychological stress (greenberg 2012: 18). although there is a legislative proposal which suggests that surgeries should only be performed when strictly necessary to save the life of the child, or when there is an actual risk to the child’s physical health,10 italian law does not yet offer a comprehensive framework to protect intersex persons. recently, a soft law instrument was introduced. the national committee for the bioethical issues approved the guidelines for the treatment of child affected by the disturb of sex difference.11 these include a moratorium for operations which are not urgent and the need to respect the integrity of the child’s body. case law is limited too. the most famous case on this matter involved a child whose parents argued that medically unnecessary cosmetic genital surgeries should be delayed until the child would reach puberty. considering the best interests of the child, the court named a guardian (in italian, a curatore speciale) in order to decide which types of cosmetic genital surgeries could be performed. the idea of the court was that the best interests of the child pointed to genital surgery, while the parents’ approach was considered unlawful.12 an important barrier for intersex people’s access to justice is linked to the procedures surrounding these surgeries. medical services often do not keep records of surgeries performed on intersex individuals and on their long-term effects. records about early surgeries cannot be found because in the past they were simply not kept; when records started to be kept, they have not been made available. therefore, intersex people who have had surgeries do not have access to their medical records, which makes it difficult and very expensive to start lawsuits. all these elements represent significant barriers for intersex persons pursuing justice, and place them in a subordinate position compared to male/female persons. 10. a.c. 246; a.s. 392; a.s. 405, proposal for amendment of law n. 164 of 1982 on sex reassignment, presented in the xvii legislature (norme in materia di modificazione dell’attribuzione di sesso, “provisions on change of sex assignment”). it requires the moratorium of surgeries, except in the cases where it is strictly necessary to save a child’s life. 11. national committee of bioethics (comitato nazionale per la bioetica, i disturbi della differenziazione sessuale), the disturbs of sex differentiation, opinion of 25.2.2010. available at: http://www.governo.it/ bioetica/pareri.html. [accessed: 1 february 2022]. see osella 2016. 12. trib. min. potenza, 29.7.1993, in riv. it. med. leg., 1996, 299, and in dir. fam. e pers., 1993, 1199. http://www.governo.it/bioetica/pareri.html http://www.governo.it/bioetica/pareri.html intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 110 2.2. sex assignment in the italian legal scenario the way in which sex is assigned in italy raises particular concern because the procedure contributes to placing intersex persons in a position of subordination compared to male/female persons. in italy, a medical attendant establishes the new-born’s sex at birth according to the external genitalia and records it on the birth certificate, which is then included in the civil registry. in general, when a child is born with a penis with the prescribed size then the child is registered as male. when children are born without a normative penis then they are registered as female and no other biological factor is generally verified and considered. the use of a sex marker other than binary male/female genital indicators is not allowed;13 according to the italian legal system, the child must be assigned to a male or female sex14 also in the case of ambiguous genitalia; and the name must clearly correspond to the assigned sex.15 in fact, in italy there are male or female names, generally recognisable by the final letter.16 linked to this issue is whether intersex people may amend their birth certificate in order to reflect their change of sex. there are no specific rules allowing people with an intersex condition to amend the sex designation on the official registers. the only way open to intersex people is to rely on the norms that rule transsexuality. yet these regulate a long, confusing, complicated and uncertain process,17 paved by a significant number of intermediate steps (lorenzetti 2013a; cardaci 2018), which entails important procedural and economic barriers. 13. however, in some hospitals, the form to be filled in considers two sexes (male or female), but includes three possibilities to describe sexual characteristics and genitals (male; female; ambiguous). 14. see the regulation governing the registration of civil status events: decree of the president of the republic, no. 396 of 3 november 2000 “regulation to revise and simplify the civil status registration system, in accordance with article 2(12) of law n. 127 of 15 may 1997”. available at: http://www.normattiva.it/ uri-res/n2ls?urn:nir:stato:decreto.legge:2000-11-03;396!=vig. [accessed: 1 february 2022]. the registrar records (article 28 of d.p.r n. 396/2000) any declaration of birth received by the registrar who draws up a formal document known as atto di nascita (birth certificate). in fact, d.p.r. no. 396 of 3 november 2000 (article 30) asks the declaration of the sex (article 29). 15. according to article 35, no. 396 of 3 november 2000, a child’s forename must correspond to their sex. 16. for instance, for female names, the presumption is the finale ‘a’; male names usually end in ‘o’. some exception can be stressed, for example, for foreign names or for some names that can be used both for males and for females (èlia, which is a female name; or elìa, which is a male name; andrea, which can be only used as a male name, except in the case of foreign children, where it can be used for a female). both male and female names can also end in ‘e’ or even with a consonant. 17. transgender people may change sex according to the national law. italy introduced regulation on sex reassignment surgery and recognition of gender reassignment in identity documents in 1982 (law 164 of 1982 which states provisions on sex assignment). this was amended in 2011 (with the legislative decree no. 150 of 2011) hence going against the declared goal of simplifying the procedure. now the procedure to change sex is longer and more expensive, since it asks for a double judicial procedure. law 164/82 does not expressly require a complete body change on primary sex characteristics and sterilisation as necessary conditions for gender reassignment. in fact, the law provides that surgery must be authorised when [so, if] necessary (article 3, former law 164/1982, now, article 31, legislative decree 150/2011). however, cases-law shows the opposite. court of appeal bologna, 22.2.2013; tribunal of rome, 8.7.2014, n. 34.525; tribunal of vercelli, 12.12.2014, n. 159; tribunal catanzaro, 30.4.2014. contra see tribunal of rovereto, 3.5.2013 and the recent court of cassation no. 15138/2015. the decisions are available at: www.articolo29.it. [accessed: 1 february 2022]. before granting an official new name and sex change, judges often require that the person who asks for gender reassignment should be permanently sterilised even when the transgender person is not will to do so. there is a pending question before the constitutional court (tribunal trento, ordinance 19.8.2014). http://www.normattiva.it/uri-res/n2ls?urn:nir:stato:decreto.legge:2000-11-03;396!=vig http://www.normattiva.it/uri-res/n2ls?urn:nir:stato:decreto.legge:2000-11-03;396!=vig www.articolo29.it anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 111 2.3. parental decisions and the infringement of the best interests of the child: parental consent and selective abortions a significant barrier intersex people encounter in accessing justice regards parental decisions over the intersex child’s body, in particular regarding parental consent and selected abortions. the consent of both parents is required to perform surgeries on an intersex child. in order to avoid inappropriate decisions, parents should be provided with complete information about their child’s condition and offered appropriate professional counselling and support. although a minority of parents (try to) decline or postpone surgery on their children with atypical genitalia, the practice shows that most parents still consent to it. when they do, the intersex child is left in a position in which they are not allowed to refuse this harmful practice, and which closes the door to any future judicial actions against the hospital and the doctors who performed it. the intersex person who looks for redress needs to rely on the parents who gave the informed consent to the surgeries, which entails the risk of weakening familial ties and encountering further emotional and psychological barriers. the question is whether parents, in consultation with doctors, should have the legal power to consent to genital modification surgery on behalf of their children. another question is whether parental consent is adequate to protect the child’s best interests. the law presumes that parents will correctly weigh the potential benefits and risks of medical procedures and make decisions that are in the best interests of their children. however, complete deference to parental decisions may infringe upon a child’s best interests. in fact, parents may not be in the best position to determine what treatment would be in their child’s best interests because it can be difficult for them to separate their child’s interests from their own interest in having a perfect child, a child with a perfect body. in addition, parents might be influenced by social norms and stereotypes which state the necessity to normalise the appearance of the body, because a life with an intersex condition is not considered worth living. surgeries are performed even if parents were not given a chance to consent to every surgical procedure; moreover, doctors could perform surgeries at the risk of permanent damage or without a real medical necessity, based on parental consent. a related concern can be raised with regard to parental decisions about selective abortions, following the prenatal diagnosis that discovers the intersex conditions of the foetus. although such prenatal tests are in some cases used to identify conditions that may be treated in utero, often they lead to the decision to abort foetuses18 that carry mutations associated with intersexuality syndromes.19 activists stress that selective abortions could be considered a dangerous step toward eugenics, because their primary effect is to select the perfect foetus and to avoid intersex children. selective abortions will reduce the 18. in italy, abortion is allowed by the law 194/1978 in cases of danger for the mother’s physical and mental health. 19. this is the opinion of the national committee of bioethics. available at: http://www.governo.it/bioetica/ pareri.html [accessed: 1 february 2022]. http://www.governo.it/bioetica/pareri.html http://www.governo.it/bioetica/pareri.html intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 112 number of intersex people and their visibility and presence in the society.20 this is also highly problematic because the visibility of intersexual persons is crucial for overcoming a legacy of prejudice and social marginalisation.21 the fact that prenatal diagnosis is followed by selective abortion is highly problematic and driven by misinformation. in fact, medical professionals suggest that abortion in cases of ‘foetal deformity’ is due to the view that life with an intersex condition is not worth living. the woman who must take prenatal treatment and who decides to undergo an abortion could be mentally and emotionally vulnerable and could be influenced by social norms and stereotypes which state the importance of having a perfect child, with a perfect body, and may believe that a life with an intersex condition is indeed not ‘worth living’. all the above medical practices confirm the unequal position of intersex children, their placement within a hypothetical hierarchy where the parameter is the male/female body and where intersex children are considered an exception, all of which infringes upon the full respect due to their rights and freedoms (tamar-mattis 2006: 59-110). the need to challenge medical models that approach intersexuality as a pathology22 should thus be stressed and intersexuality should be recognised as a normal variance of human beings. the most urgent goal is the elimination of harmful practices based on sex and gender stereotypes, eliminating or decreasing the number of medically unnecessary cosmetic genital surgeries being performed on intersex children. to this end, enhancing the right to self-determination is a primary aim.23 2.4. language and recognition strategies a focus on the language used to define intersex persons is important; otherwise, we risk using words and expressions which many of them find offensive or feel as distorting of their identity. indeed, language mirrors and is evidence of the subordinate position of intersex persons; thus, changing the way that language is used could represent a first step towards a more respectful approach to intersex people’s rights. some people in the italian intersex community point to the need to abandon the expression “disorder of sex development” (also referred to as dsd) and encourage the use of the term ‘intersex’. this position reflects the rejection of the medicalisation implied in the expression dsd; in addition, the term ‘disorder’ is considered inappropriate and 20. this is the position of alessandro comeni (collettivo intersexioni), as expressed in his speech during the final conference on “lgbti persons and access to justice”, held in bergamo on 22-23 may 2015. 21. if fewer people with intersex conditions are born, and if it is easier to prevent them from being born, the social commitment to treatment and the protection against medical treatments may be weakened. 22. see the organization intersex international (oii intersex network. available at: http://oiiinternational. com) and the intersex society of north america (isna), www.isna.org. [accessed: 1 february 2022]. 23. see the web site of the collettivo intersexioni, www.intersexioni.it. [accessed: 1 february 2022]. http://oiiinternational.com http://oiiinternational.com www.isna.org www.intersexioni.it anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 113 pejorative, and ‘intersex’ persons do not want to be labelled under it (balocchi 2015; arfini and crocetti 2015). some of the people who support the move away from the expression of dsd also oppose the term intersex and suggest that we embrace instead the acronym “dsd”, referring to “differences or divergences in sex development” (in italian, differenze e divergenze nello sviluppo sessuale), and written in small case in order to differentiate it from dsd, which means disorders or disturbances of sex development (in italian, disordini o disturbi dello sviluppo sessuale) and which is written in capital letters (greenberg 2006, pp. 93; balocchi 2015; arfini and crocetti 2015). to define their condition, intersex activists prefer the word intersexuality (in italian, intersessualità) because it describes the intersex as a form of identity and culture (balocchi, 2015), or directly the english expression ‘intersex’ or intersesso. they refuse to use the expression ‘intersexualism’ (in italian, intersessualismo), as this is considered borrowed from the transgender movement, which introduced and uses the term transsexualism (in italian, transessualismo). controversies around the way italian language is used show the risk of using words and expressions which many intersex persons find offensive, and of the importance of referring to this condition correctly, in terms which do not add to the discomfort of intersex people.24 it is also important to consider the preferences of intersex people with regards to actions and strategies to be undertaken to advance their legal situation. in this respect, it has been suggested that the legal arguments used by organisations fighting for sex and gender equality be adopted. in fact, gender stereotypes, which are the basis of gender discrimination, can also be considered as the reason for performing early surgeries on intersex children (greenberg 2012). thus, the re-definition of gender hierarchies could help to overcome the subordination of intersex people as compared with persons who perfectly match male and female characters. however, in the opinion of the author of this paper, relying upon gender equality discourses creates the risk of missing the focus on the trauma and stigma that early genital surgeries cause, and hinder the primary goal of ending medical practices that surgically alter infants and harm intersex bodies. the goal of ending early surgeries differs from the cultural and social reasons which contribute to gender inequalities and must be treated separately, primarily as a health issue. some other activists believe that altering current medical protocols for the treatment of infants with an intersex condition could be better advanced by focusing on issues emphasised by disability rights advocates. in fact, the focus on the right to selfdetermination, autonomy and bodily integrity could be a more effective tool to protect people with an intersex condition (sytsma 2006). there is a stigma, however, in being considered as disabled, abnormal and in need of help and assistance. 24. the distorting effect of language is not unique to intersex people. it concerns all the so called ‘minority rights’ debates and gender issues. intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 114 another way to re-think the hierarchy which places the intersex in an unequal position could be to follow the legal frameworks used by other social justice movements. from a practical perspective, however, this seems a dead-end in italy, where social justice movements are not so rooted and strong. from a theoretical perspective, the true question is whether and how the intersex movement can form alliances with other social movements and use similar legal strategies. this seems to be difficult, given that intersex activists believe that the primary goal of the movement should be to end the medical practices that cause irreparable physical harm and psychological trauma.25 3. suggestions on how to protect intersex people turning now to the analysis of the different legal ways to protect the intersex from harmful medical treatments and surgeries, many options seem to be open. there is the path of legal reform, including the empowerment of the role of the regions, and the implementation of positive actions and good practices. other ways include the protection of the intersex condition through the recognition of intersex children as disabled persons, or as a human rights problem (domurat dreger 2006: 73-86; schneider 2015). lastly, a further significant route could be attempting a consistent enforcement of the constitutional right to equality. in order to eliminate medical practices of early surgeries, a first option is to introduce legal reforms providing a complete moratorium on surgeries, except in the case of life-saving treatments. a recent example of this approach is the law introduced in malta which declares it unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical interventions on the sex characteristics of a minor, when such treatment and/or intervention can be deferred until the treated person can give their informed consent. the same law also provides that the sex assignment treatment and/or surgical intervention shall be conducted if the child gives informed consent through the person who exercises parental authority or the tutor of the minor. in exceptional circumstances, treatment may be performed once agreement is reached between an interdisciplinary team and the persons who exercise parental authority or their tutor who is still unable to provide consent. the law also provides that medical interventions driven by social factors without the consent of the minor must be considered in violation of the law.26 another approach is to recognise intersex as a third sex category.27 recently, some countries such as germany and australia have introduced this solution. however, this possibility hides the stigma of being considered as different and as ‘other’ from the m (male) or f (female).28 in fact, the difference makes the intersex persons be seen as inferior comparing to those who are assumed to be the parameter, the norm. 25. a final and central question to be understood is whether the intersex movement could really be considered as an identity movement compared to other identity movements. 26. malta approved the “gender identity, gender expression and sex characteristics act” (malta 2015). 27. this is the way followed in germany and australia. 28. if fact, you are neither male or female, you are other. anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 115 generally speaking, the introduction of a legal moratorium of early surgeries guarantees a protection against the harmful practices and interrupts the oppression of the intersex person compared to male or female persons. although this legal reform could be considered the highway to protect intersex persons, it depends upon parliamentary approval. the actual political scenario in italy shows that a legal reform protecting the rights of intersex persons is difficult to achieve. in the effort to overcome the vulnerability of intersex people, the potential role to be played by regional administrations also needs to be considered. generally speaking, the state is competent in the “determination of the basic standards of welfare related to those civil and social rights that must be guaranteed in the entire national territory” (article 117). however, regions have residual legislative power in all matters that are not expressly covered by state legislation and they are also expressly empowered to contrast gender discrimination by article 117 (para. 7) of the italian constitution. in particular, regions hold some legislative power regarding health.29 following the example of specific legal statutes aimed at ending discrimination based on sexual orientation and gender identity,30 regions have at their disposal a variety of instruments that can be adopted with the aim of enhancing the rights of intersex persons. these instruments include approving regional laws protecting the intersex from discrimination, developing health guide lines (for instance, through regulation acts) in order to impose the moratorium of surgeries, and introducing medical training and protocols (d’ippoliti and schuster 2011; gusmano and lorenzetti 2014). however, we have to bear in mind that using this margin of manoeuvre could lead (and usually leads) to deep differences among regions, depending among other factors on the political orientation of each regional government.31 this could translate into different treatments for the intersex condition across the country. in addition, the regions might not come to redress the hierarchy implicit in the comparison between the ‘norm’, i.e., the person who is male or female, and the intersex person. thus, the intersex would continue to be considered as ‘different’ and ‘other’, thus as subordinated; all of which calls for stronger protection under equality and dignity principle. 29. this is the so called ‘concurring legislation’ applied to health protection. since 2001, a significant reform of title v of the constitution has introduced a new division of legislative powers among the state and the regions. the state holds exclusive legislative powers in specified matters, while other matters are covered in so called ‘concurrent legislation’ – regions hold legislative power except in the case of certain fundamental principles which are reserved for state law in many significant matters (for instance, health protection). thus, the power balance between the state and the regions in such matters remains somewhat unclear. 30. for instance, in 2004 the region of tuscany first enacted a regional law prohibiting discrimination on the grounds of sexual orientation and gender identity in regard to employment, education, public services and housing (law issued by the region of tuscany, on 15.11.2004, nbo. 63, rules against discrimination on the grounds of sexual orientation and gender identity). other regions such as marche, liguria and emilia-romagna have taken similar steps by recently enacting specific laws concerning protection from discrimination based on sexual orientation and gender identity (marche regional law, 11.2.2010, n. 8; liguria regional law 10.11.2009, n. 52). in addition, a considerable number of regional statutes have been modified during the last five years, so that they expressly refer to sexual orientation and gender identity. 31. in general, we may stress that antidiscrimination law seems to be an arena for regional political debates. intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 116 the national and regional legislative vacuum suggests the need to verify the possibility of introducing positive actions and promotional measures. positive actions could lead, for example, to the establishment of information services, following the example of the first (and only) intersex info point opened in florence. a further positive action measure could be the introduction of training for health and social professionals who have a fundamental role in filling the information gap. in fact, limited and inaccurate information is considered to be one of the first causes for surgery on intersex children and correct information could also lead to reduction of selected abortions following prenatal testing results. in a legislative vacuum, the role of positive actions and promotional measures could guarantee bodily integrity and reduce early surgeries provoked by misinformation. other strategies are needed in order to undermine the hierarchy which defines a ‘perfect body’, a body that ‘perfectly conforms’ to what is considered male or female, a normal body, the parameter from which to define the ‘other’, assumed to be inferior. one option –which has not yet been taken into account– consists in extending the italian legal framework32 on disability to intersex persons. if bodies that fail to conform to the sex binary system are perceived as nonconforming, disabled, and in need of repair, or if they are considered as abnormal, they should also have the right to access the protection granted by disability law. this recognition could effectively advance the rights of people with an intersex condition. however, as was mentioned above, intersex activists generally refuse this approach, because it reinforces the stereotype of the intersex condition as an ‘abnormality’. in fact, it does not guarantee the overcoming of the hierarchical relation between the ‘norm’ (male or female person) and the ‘exception’ (intersex persons), but in some way reinforces it with a paternalistic approach. it sends the message that the intersex needs to be protected, not in order to safeguard their rights and freedom, but because they are weak and not included in the norm. another way to ensure protection for intersex people could be through human rights standards. in general, international protocols and practices raise strong barriers to the violation of intersex children’s human rights, which are first listed in the convention on the rights of the child adopted by the general assembly of the united nations in november 1989. for instance, if the best interest of the child is the primary consideration, surely medically unnecessary cosmetic genital surgeries should not be performed; at least they should be delayed until the child is old enough to make the decision, which is usually after puberty. also the general comment no. 13 of the un committee on children’s right to freedom from all forms of violence stresses the importance of combating unnecessary and unjustified surgeries on intersex babies. in the same direction, the resolution of the parliamentary assembly of the council of europe33 and the position of the fundamental rights agency (fra 2015)34 emphasise the importance of respecting bodily integrity for intersex children, hence of stopping early surgeries. 32. in italy, the disabled are protected at the workplace (law no. 67 of 2006; legislative decree no. 216 of 2003), at school and in many other fields (law 104 of 1992). 33. see article ii of the resolution 1952 (2013) of the parliamentary assembly of the council of europe, which calls for respect of the physical integrity of children, including “early childhood medical interventions in the case of intersex children”. 34. this document stresses the connection among articles 1 (human dignity), 3 (right to integrity of the person), 7 (respect for private and family life), 9 (right to marry and right to found a family), 21 (nondiscrimination), 24 (the rights of the child) of the eu charter of fundamental rights. anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 117 although international law tools could create strong boundaries to surgeries on children, in practice, however, these are mostly soft law instruments, with no direct effect on individuals. in addition, they do not focus on the personal condition and the lives of intersex people who face cosmetic surgeries, for whom the need to stop them stands as an immediate problem. moving to european sources, the eu anti-discrimination perspective does not include the intersex condition, which comes to show its deficiencies in granting protection to individuals. the main difficulty is that european community law was (and eu law in part still is) characterised by the economic goal of avoiding social dumping (bell 2002; ellis 2005). only in recent times, with the charter of nice (2000) and the lisbon treaty (which came into force in 2009), has the european legal framework started to consider the social dimension of equality as a general principle, and also to incorporate the concept of individual dignity.35 theoretically, also the italian constitution calls for strong protection of intersex people through their fundamental rights. in fact, it grants the right to equal treatment to all citizens, who shall be able to enjoy the same rights irrespective of any personal condition.36 its article 2 specifically grants protection to all individuals. the duty to promote equality, based on social rights, and the protection against discrimination as a fundamental concern of the italian republic (article 3) should cover intersex people. although the constitution does not expressly mention the intersex condition, this must be considered as included in the ‘personal condition’ mentioned by article 3 among the forbidden grounds for discrimination, which is interpreted as an “open formula” (cerri 1994). in addition, the notion of sex in article 3 can be interpreted in extensive terms, as including persons who are not biologically male or female.37 furthermore, the second section of article 3 of the italian constitution states: “it is the duty of the republic to remove those economic and social obstacles which, limiting in fact the freedom and equality among citizens, hinder the full development of any human person and the integration of all workers in the political, economic, and social organization of the country” (i.e., the so called “principle of substantive equality”). based on it, it should be the duty of the republic to stop unnecessary surgeries, as they prevent the full respect of the body and personality of intersex persons. another relevant provision is the recognition of health as a fundamental right in article 32 of the italian constitution. considering that early surgeries have a strong impact on the person’s physical and psychological well-being, the constitutional protection of 35. in fact, the jurisprudential attitude of the european court of justice had already severely affected the legislator’s work, forging new notions of discrimination (such as the notion of indirect discrimination) and moreover steering the interpretation of the original rule in article 119 of the treaty towards social meaning. 36. article 3 states that all citizens “have equal social status and are equal before the law, without distinction of sex, race, language, religion, political opinion, and personal or social conditions” (the so called principle of formal equality). 37. the interpretation follows the direct link between sex as a biological feature, gender as its social construction and sexual orientation as the expression of an individual’s sexual preferences (pollicino 2005; pezzini 2012). intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 118 health could play a key role. lastly, the constitution also imposes upon the italian state the duty to implement international law that protects the intersex condition and that considers the best interest of the child (article 117, para. 1). the italian constitutional framework thus calls for the protection for intersexuality and for the full recognition of the intersex’ rights and freedoms. however, as the actual situation and the medical practices of early surgeries show, thus far it has been an ineffective tool, which prompts the need for other ways of protection. thus, the implementation of the theoretical framework for protecting intersexuality should consider the multifaceted character of constitutional equality in order to guarantee the protection of intersex people. in view of all this, it may be interesting to contemplate the intersex condition, in connection with the analysis of the equality principle, not only from an anti-discrimination perspective but also on the grounds of diversity (niccolai 2007; ruggiu 2009, 2010, 2012). such perspective could be referred to as the gendered “dilemma of difference” (morondo taramundi 2004), as social rights which widen the range of what is considered as ‘the norm’ and ‘normal’. an interpretation of equality as inclusive of diversity could allow for protective measures, which could reduce or remove the negative impact of protecting minorities (through their protection as ‘particularly vulnerable individuals’) and at the same time limit patterns of social exclusion. it could also legitimise specific treatment designed according to individuals’ specific situation and promotional measures that recognise their specificity (as is the case with measures which emphasise the recognition of identity), founded on a multidimensional view of society (measures which emphasise specificity) (gianformaggio 1997, 2005). however, the protection of diversity proves to be a frail strategy, because it stigmatises whatever, or whoever, is considered as ‘different’ and ‘other’ from the norm. we therefore need a different interpretation of the theoretical framework of equality, one which could guarantee the full enjoyment of rights and freedoms for intersex children. the interpretation of equality from the antisubordination perspective stands here as a promising alternative. this new perspective could overcome the limits that burden other ways of protecting intersex persons, by focusing, not on difference, but on hierarchies, thus altering the symbolic horizon which regards the person (male or female) defined as the norm (the standard, the parameter) as superior, and the exceptions (intersex persons) as inferior. this change in perspective allows us to go beyond anti-discrimination policies, a sphere where gender hierarchies are expressed and performed.38 it also allows us to go beyond the protection of diversity, which risks to stigmatise what (or who) is considered as the exception to the norm (pezzini 2012). the antisubordination principle allows us to confront the gender binary system, which defines what it is to be a man or a woman and at 38. in fact, the anti-discrimination perspective confirms and legitimates a comparative process which identifies the masculine as the universal benchmark and stigmatises the feminine as different, ‘other’ and implicitly inferior (pezzini 2009; barrère unzueta 2004). anna lorenzetti the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 119 the same time requires and prescribes that every person be either the one or the other. the revision of the gender binary system could help in considering intersexuality as a normal human variance, not only an exception to the ‘normal’ male/female dichotomy. 4. conclusion in addressing the legal condition of intersex children, this paper has analysed the italian scenario, in particular the medical practices and protocols on intersex children which allow the practice of surgeries on them; it then looked into the italian academic debate, the situation of the intersex movement and analysed the italian legal framework, including suggestions on how to improve it. regarding the barriers that intersex people face, we must first mention the organisational barriers that lie at the roots of their institutional and social invisibility, and of the weakness of the italian intersex movement, which has failed to promote judicial cases. one such barrier is that the procedure for sex reassignment according to sexual dichotomy and based on the legal tools available for trans people (law no. 164 of 1982) is long, confusing and uncertain (cardaci 2018). in addition, there is scarce legal and medical evidence of the surgeries. medical services are rarely transparent about the statistics of operations performed on intersex individuals and on their long-term effects. moreover, medical records are not available even to the intersex persons who were subjected to the treatments. procedural barriers bring economic barriers, as judicial proceedings in italy are long and rather expensive. there are also emotional and psychological barriers, as the intersex person who hopes to access justice needs to address his/her parents in order to gain their (informed) consent for the surgeries. in these cases, the judicial way could involve the risk of weakening family ties and compromising the person’s emotional and psychological well-being. given this scenario, this study has attempted to suggest ways to prevent harmful practices on intersex children. many ways seem feasible: a legal reform, following the recent maltese law; the action of regions; the possibility of positive actions and good practices; the protection through disability law or through the recognition of human rights; the enhancement of the italian constitutional framework and the recognition of an antidiscrimination principle and the protection of difference. finally, a new reading of the equality principle based on anti-subordination discourse seems best suited to guarantee rights to intersex people in a way that undermines the power structures that conceptualise them as the others and inferior, because they do not conform to the binary male/female dichotomy (pezzini 2012). wrapping up, we may draw some general conclusions. a number of changes to current practices must be encouraged and a more cautious approach should be introduced in order to avoid or postpone surgical intervention. only the concerned children should have the power to decide whether they want to undergo surgery, when they reach an age at which they are can appropriately assess the risks and intersex in italy: at the source of the complexity? the age of human rights journal, 18 (june 2022) pp. 105-123 issn: 2340-9592 doi: 10.17561/tahrj.v18.7082 120 benefits. this includes an assessment of the risks of psychological harm, which should be recognised as more detrimental than the purely physical risks of surgery. in general, cosmetic genital surgeries should not be performed on children until they are able to meaningfully participate in the decision-making process. some of the suggested solutions – implementation of good practices, actions taken by the regions – lay bare the limits of relying on the legislators’ discretion, who in turn might remain silent and thus leave intersex people in a state of frailty (social as well as legal). to balance this out, this paper proposes that we approach the protection of intersex persons from within a theoretical standpoint that regards equality as anti-subordination. the implementation of equality through anti-subordination discourses could remove the many barriers and stigmas that intersex people face in their path to justice. it could help to overcome the limits of the solutions that have been suggested here and ensure full respect for their rights and freedoms. it could lead to an unquestioning consideration of intersexed bodies as a normal variance of human being. references arfini, e.a. and crocetti, d. 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(2013) “shaping parents: impact of contrasting professional counselling on parents’ decision making for children with disorders of sex development,” 10 the journal of sexual medicine, pp. 1953-60. https://doi. org/10.1111/jsm.12214 sytsma, s.e. (2006) “the ethics of using dexamethasone to prevent virilisation of female fetuses,” in s.e. sytsma, ed., ethics and the intersex, springer, pp. 241258. https://doi.org/10.1007/1-4220-4314-7_15 tamar-mattis, a. (2006) “exceptions to the rule: curing the laws failure to protect intersex infants,” 21 berkley journal of gender, law & justice, pp. 59-110. received: december 15th 2021 accepted: april 19th 2022 www.coe.int https://doi.org/10.1111/jsm.12214 https://doi.org/10.1111/jsm.12214 https://doi.org/10.1007/1-4220-4314-7_15 intersex in italy: at the source of the complexity?* abstract 1. introduction 2. intersex people in italy 2.1. medical practices and protocols 2.2. sex assignment in the italian legal scenario 2.3. parental decisions and the infringement of the best interests of the child: parental consent 2.4. language and recognition strategies 3. suggestions on how to protect intersex people 4. conclusion references a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 1 a study on the human rights situation in kirkuk sanh shareef qader1 abstract: human rights are the principles that seek to protect all human beings around the world from serious political, legal, and social abuses. as a result of the atrocities committed in first and second world wars, the united nations ensures the protection of human rights through several international conventions and instruments, such as the un charter and universal declaration of human rights. iraq is a signatory to most of the international conventions concerning the protection of human rights. this paper aims to examine the protection of human rights in kirkuk under the iraqi federal government. the paper’s approach is focused entirely on desk research, with secondary sources being the main sources of information. the study concludes that the iraqi federal government has failed to protect human rights in kirkuk due to the fragmented security ability of the federal government and the dominance of militant groups in the region. keywords: human rights, international conventions, kirkuk, iraq federal government, kurdish minority, militant groups. summary: 1. introduction. 2. concept of human rights. 3. legal position of human rights. 4. kirkuk province. 5. kirkuk’s issue under un resolutions. 6. fundamental rights in the iraqi constitution. 7. overview of the human rights violations in kirkuk. 7.1. displacement and humanitarian aspect. 7.2. freedon of expression, discrimination and cultural rights. 8. conclusion. 1. introduction massive human rights violations have been taking place in kirkuk, a disputed area in iraq, since 2003 when the iraqi baathist government changed to a federal government. this incident led to sectarian violence between sunni and shia sects that adversely reflected the whole governance system of iraq. the kurds, a minority ethnic group in iraq, have not been spared from the human rights violations that resulted from the conflicts between the two sects, especially in the kirkuk province where the majority of the kurds live. the province of kirkuk is a contentious region that is on the border between iraq and the kurdistan region. the population is made up of sunni kurds, sunni arabs, sunni and shia turkmen, as well as a small number of chaldean and assyrian christians. in addition to the districts of dibis, hawija, and daquq, the city of kirkuk is situated in the kirkuk province (international crisis group, 2018; european union agency for asylum, 2021) see further below, section(4). it has historically served as a focal point of conflicts between the iraq federal government and the kurdistan regional government. the kirkuk province was under the jurisdiction of the central government until 2014, after the terrorist organization named the" islamic state of iraq and the levant" (isil) occupied most of iraq and syria, causing the iraqi army to disintegrate. kirkuk city and other areas of the province were taken by kurdish troops (peshmarga) in order to close the defensive 1 lecturer, department of law, faculty of law, political sciences and management, soran university, kurdistan region, iraq (sanh.qadir@soran.edu.iq). http://10.17561/tahrj.v20.7374 mailto:sanh.qadir@soran.edu.iq a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 2 vacuum created by the iraqi military and stop isil from capturing them. after the city fell to kurdish forces due to the defeat of isis, tensions over the city’s administration between the kurdistan regional government (krg) and the federal government increased, especially over the oil issue. however, after the (krg) held the independence referendum1, the iraqi army retook control of kirkuk province (winter, 2017). although the civil and security administration of kirkuk has again fallen under the control of the iraqi federal government, several armed groups which were established in iraq since 2003 have interfered in the internal affairs of kirkuk province and played a negative role as a result of the iraqi army's capture of kirkuk (kirkuknow,2022), such as kata’ib hezbollah, kata’ib sayyid al-shuhada, kata’ib al-imam ali, asa’ib ahl al-haq, and the badr organization, which are united under the name of al-ḥashd ash-shabi (“iraqi popular forces”, 2015). these groups are outside the jurisdiction of the iraqi federal government; their powers are above those of the government and have a negative impact on the lives of iraqis, especially in kirkuk. the illegal conducts of these militants have disrupted the security of the people living in kirkuk and deprived them of their fundamental rights. the majority of the people have been displaced and have lost their jobs. moreover, the militant groups have been raising their own flags and have removed other cultural symbols of the minorities. they have attempted to change the demographics of kirkuk illegally by bringing foreign families to the province. this situation has stripped the people of kirkuk, especially the kurds, of their fundamental rights, including the ethnic minorities’ rights provided in the iraqi constitution of 2005.2 the constitution obligates the iraqi federal government to respect the rights of the kurds. thus, this unfavorable situation in kirkuk is an important subject of this study. to present more information to clarify the matter, the question arises: have the armed groups violated the fundamental rights of the people in kirkuk, including the kurds as the largest minority group or not? this paper therefore aims to investigate the reality of the violations. it also aims to demonstrate the position and the legal responsibility of the iraqi federal government in this matter. the paper also explains the notion and legal base of human rights, followed by the issues faced in kirkuk 1 on 25 september 2017, the kurdistan region of iraq held an independence referendum. according to the preliminary results, 92.73 percent of the ballots cast were in favour of independence. krg believed that the reason for holding the referendum was the failure of the iraqi federal government to implement the constitutional demands of the region. for further information, see shareef, sanh (2020), “iraqi kurds right to self determination in the context of governmental policies and academia”. 2 most important minority rights can be found in iraqi constitution, 2005, art. 2 (2), art 4(2), art.14 and 15. article 2(2) states that “this constitution guarantees the islamic identity of the majority of the iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as christians, yazidis, and mandean sabeans.” article 4(1) state that “the arabic language and the kurdish language are the two official languages of iraq. the right of iraqis to educate their children in their mother tongue, such as turkmen, assyrian, and armenian shall be guaranteed in government educational institutions in accordance with educational guidelines, or in any other language in private educational institutions.” article 14 states that” iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.” article15 states that “every individual has the right to enjoy life, security and liberty. deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.” see further at: https://aceproject.org/ero-en/regions/mideast/iq/full%20 text%20of%20iraqi%20constitution.pdf/view. http://10.17561/tahrj.v20.7374 https://aceproject.org/ero-en/regions/mideast/iq/full%20text%20of%20iraqi%20constitution.pdf/view https://aceproject.org/ero-en/regions/mideast/iq/full%20text%20of%20iraqi%20constitution.pdf/view sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 3 under the un resolutions. finally, it investigates and analyses the human rights violations in kirkuk that have resulted from the unwanted conduct of armed groups in the province. 2. concept of human rights the concept of human rights is a thorny one. it is expansive in its content and sensitive in its implications. it includes a wide range of rights, including civil, political, social, and economic rights. most legal and governmental systems and organisations have regulations on these rights. the issue of human rights is sensitive because it interferes with a person’s daily life, with one’s various activities, with one’s individual and psychological relationships with others, and with the subject-based authority of the group. therefore, any denial of one of these rights is ultimately a denial of the existence and dignity of the individual and a denial of the legitimacy of the existence of the state itself (fawzia, 2012). however, in view of the seriousness and scope of human rights, it can be difficult to give a specific definition of this human rights concept, and most of the attempts made in this context have only succeeded in approaching the basic elements of this concept. therefore, it is first necessary to clarify what is meant by right; it is a moral or material interest belonging to the right holder that is protected by legal means. a right is what is permitted, permitted by written laws or rulings related to considered actions, or morally permissible, because the intended action is either valid or morally impartial (daham,2020). regarding human rights, there are many definitions; french scholar yves madiot defined it as “the study of personal rights recognized nationally and internationally, which in the light of a particular civilization guarantees a combination of affirming and protecting human dignity on the one hand, and maintaining public order on the other hand” (shabib,202). human rights are also defined as a set of rights that every individual enjoys or should enjoy in the society in which he or she lives. this requires that these rights are universal and enjoyed by every individual as a human being without discrimination between individuals. likewise, these rights must also find their dignity in a legal obligation to implement them, not a moral obligation (abdul ghaffar, 2003). david b. forsyth believes that human rights are in themselves the source of the legal and political legitimacy of the state, which does not derive from any legal system or policy evaluation criteria (fakia, 2015). however, all these definitions share a common view of the subject within the modern view of rights and law, assuming the existence of a modern state dominated by the law, in that this law must guarantee the rights, dignity, equality and justice for all citizens. thus, it can be said that these definitions presuppose the existence of a modern science called the science of human rights, and that the criterion for this science is human dignity. there are several principles that can characterize these rights such as universality of human rights and the principle of complementarity and interdependence, and domestic national matter. the origin of human rights lies in the fact that it is both a domestic national issue and an international principle (fawzia, 2012). the concept of human rights, linguistically, idiomatically, and legally, is one on which nations and humanity as a whole are built. in this respect, human rights differ according to the meaning and term in which they are found. linguistically, human rights http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 4 are among the moral principles that represent the human model that humans should have. the rights should not diminish as they are granted by god to humans in general and bind upon them regardless of race, religion, or morality. nonetheless, the definition of human rights in terms of terminology varies from one society to another, depending on the culture itself and the conditions of the society (nasser, 2022). terminology, human rights is defined as a special branch of the social sciences. it is concerned with the study of relations between human beings on the basis of human dignity. thus, it defines the essential human rights and permissions for the well-being of every human being. another definition of human rights is science peculiar to a person, especially a person living under a state, that they should benefit from the protection of the law when they are accused of a crime or when they are the victim of an infraction. through the intervention of national judiciary and international organisations, their rights, especially the right to equality, should be brought into line with the needs of the public system (hamdoush, 2014). however, violations of human rights are still committed in some countries. according to a report, the countries where human rights are endangered and violated the most include yemen, iran, syria, and iraq(the global economy, 2022). in law, the concept of human rights did not originate from legal principles. instead, human rights were taken as moral claims. over time, these rights began to be formally recognised and protected by laws, as described in the next section. they are often enshrined in a country’s constitution and expressed in the form of bills that no government can negate. in addition, independent courts have been established to provide redress to the people deprived of these rights (un office of human rights, 2004). in other words, human rights are the principles and demands that are closely related to human dignity; they must be respected and protected by the authorities to ensure that the people can lead a dignified life (sedeed, 2020). however, the international legal framework of human rights can be criticized as being relative rather than universal; it may even be considered as western values. arguments emphasize that human rights, especially as stated in the universal declaration of human rights, leave no room for multiculturalism or that these rights are not multicultural; for instance, this framework does not apply to african and asian countries, or even the middle east (a de man, 2018 & borhani, 2018). the definition of human rights relates to a particular understanding of the state and existing law, wherein the citizen takes precedence over the benefit of a community and the state. the appreciation of self-respect and the rights that flow from that dignity is the foundation of fairness in the model definition of human rights, thus the foundation of any legal framework that wants to be just. positive law can be protected from worsening through jurisdictive lawlessness by identifying the additional lawful roots of existing law and demonstrating the lawful framework on the admiration for human rights (piechowiak, 1999). all the definitions of human rights revolve around one axis, namely the protection of human rights, whether legal or human. whilst the definitions vary, they lead to the same result, which is the protection of the individual’s right and freedom to live in a satisfactory place that protects all human rights. http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 5 historically and philosophically, the idea of human rights traces its origins to natural law. the idea of human rights based on natural law is awareness that the rights established to protect liberty and dignity are human in nature, and the rights inherent in or attached to the human person, as well as their denial, do not preclude their existence because the rights exist together with humans. therefore the idea of human rights is outside the scope of positive law, and it interferes with what is possible. describing it as legal fiction implies that laws are revealing rather than creative (sobh, 2020). one of the most prominent renaissance thinkers was machiavelli, who defended freedom, argued that there is no freedom without equality. he permitted nations to resort to any means to achieve the right to equality and liberty. social contract philosophers have also played a prominent role in the intellectual evolution of the human rights notion, such as john locke and montesquieu who supported liberty. jean-jacques rousseau who advocated popular sovereignty, also believed that popular sovereignty was the only guarantee for the protection of individual rights and freedoms(shaanan, 2012). thus, the principle that the 18th-century philosophic thinkers in the west started in their appeal to human rights is the notion of natural rights. natural rights, which developed from the idea of natural law, are regarded as the forerunners of human rights. natural law is the greater order decency norm by which all other rules are measured, and it has held a prominent position in western governmental philosophy for decades. to challenge the unfairness of human-made law, one could turn to god or natural law, which has superior power. this notion of natural law gradually developed into natural rights, reflecting an alteration of focus from community to the citizen. natural rights grant citizens the freedom to bring lawsuits against the government and offer a framework for restrictions of undue state control over society (nickel, 2019). generally, human rights can be viewed as the values that aim to keep all citizens around the world from serious political, legal, and social violations. rights to liberty of religion, to justice once convicted of a crime, to not be abused, and to education are all areas of human rights (united nations office, n.d.). the language of human rights has become universal today, a common language used to express the most basic demands of justice. moreover, it can be said that human rights are the outcome of the political struggle for human dignity, and that all human rights enshrined in the international declaration of human rights in the contemporary world represent a broad and acceptable consensus on the necessary requirements for a decent life. 3. legal position of human rights the value of human rights was recognised in 1945 with the establishment of the united nations (un) following the horrific devastations to mankind in the second world war that had never been seen previously. the un charter begins by saying “we the citizens of the united nations” (mohiuddin, 1997, p. 80). this creation defines states’ responsibilities to take necessary steps to protect human rights (un office of the commissioner of human rights [ohchr], n.d.). http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 6 one of the un’s major successes is the formation of a substantive framework on human rights law, i.e., a uniform and global standard that all governments may adhere and all citizens may aspire. the un provides a comprehensive list of universally recognised rights, namely legal, educational, financial, political, and civil rights. it has developed frameworks to promote and safeguard the rights, as well as to support governments in fulfilling their obligations. the un charter, ratified by the general assembly in 1945, is the basis of this set of laws (un, n.d.). the universal declaration of human rights (udhr), drafted by the human rights commission, was adopted by the general assembly in 1948 (udhr, 1948). besides the udhr, the un’s efforts culminated in several main legal tools that describe and pledge the human rights defence, such as the international covenant on civil and political rights (iccpr) and the international covenant on economic, social, and cultural rights (icescr) that came into force in 1976, as well as the optional protocol to the international covenant on civil and political rights (un general assembly, 1966). the constitution of universal human rights is made up of these instruments. critics on universal human rights acts refer to the udhr as a foundational universal declaration of individuals’ unchallengeable and unbreakable rights. whilst the udhr provides the ethical meaning, the conventions obligate the governments that approve them (mohiuddin, 1997, p. 80). human rights are addressed in many clauses of the un charter. consequently, the un charter includes several articles regarding human rights such as articles 1, 8, 13, 55, 56, 62, 68, and 76 so as to preserve global peace and security, to foster good relationships among states, to collaborate in the resolution of global matters and the promotion of human rights, and to serve as a focal point for aligning national movements. one of the un’s goals, according to article 1, is to “promote and encourage regard for human rights and basic freedoms for everyone, without regard to race, sexuality, culture, or faith.” article 8 provides that “the united nations shall not enforce any limits on men and women’s eligibility to engage in its main and subordinate organs in any ability and on an equal basis.” article 13 states that “the general assembly’s duties, roles, and powers shall comprise supporting in the protection of human rights and essential freedoms for everyone”. article 55 outlines the un’s goal of global collaboration, namely “global respect for and adherence of human rights and basic freedoms for everyone without regard to race, gender, culture, or faith”. article 56 states that “all members have to take collective and independent measures in collaboration with the organization for the accomplishment of the objectives set out in article 55”. similar guidelines are included in article 62, which describes the economic and social council’s (ecosoc) duties, roles, and powers. according to article 68, “the economic and social council shall constitute commissions in economic and social fields, as well as such other commissions as may be necessary for the execution of its functions”. likewise, in the explanation of the international trusteeship scheme, article 76 includes human rights clauses. many global declarations, conferences, and regional agreements addressing human rights preceded the udhr and the covenants of iccpr and icescr. the convention on the prevention of torture and other cruel, inhuman or degrading treatment or punishment http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 7 (1984), and the convention on the elimination of all forms of racial discrimination (1969), are only a few examples (ohchr, n.d.). icescr is concerned with employment rights, trade unions, community welfare, household care, living and health standards, education, and cultural life. it guarantees that those rights are progressively realised in their entirety without discrimination (icescr, 1966). meanwhile, liberty of movement, equal treatment under the law, assurance of innocence, freedom of faith and belief, freedom of thought and speech, right of peaceful assembly, freedom of association, right to engage in public affairs and to vote, and minority rights are all covered under the iccpr. it prohibits unreasonable deprivation of life, abuse, inhuman or degrading treatment or punishment, bondage and forced labour, arbitrary detention or imprisonment, unreasonable invasion of isolation, conflict propaganda, and incitement to bigotry or aggression based on race or religion (iccpr, 1966). individuals’ right to self-determination, codified in article 1, is the most important right governed in both covenants. furthermore, except in emergency circumstances, those rights under the iccpr can never be revoked or restricted, as stated in articles 6(1), 7, 15, 16 and 18. article 6(1) states that “no state party may abdicate its obligations to safeguard the right to life.” article 7 guarantees freedom from violence, article 15 guarantees freedom from retroactive criminal law, article 16 guarantees the right to be recognised as a citizen before the law, and article 18 guarantees freedom of expression, conscience, and faith (iccpr, 1966). however, persons can file charges of human rights abuses against approving states under certain conditions based on the optional protocol to the iccpr (ohchr, n.d). since iraq is a member state of the above covenants, the country recognises the responsibility to uphold the rights enshrined in them. iraq is also a signatory of the international convention on the elimination of racial discrimination. article 1(2) of the convention defines institutional racism as any differentiation, omission, or limitation of choice based on race, colour, ethnicity, or national origin that has the intent or result of negating or effecting the acknowledgment, enjoyment, or practice of human rights and political liberties on an equal basis in the political, economic, religious, cultural, or other fields of public life. therefore, it means that the iraqi federal government shall respect the international instruments regarding the protection of human rights (un treaty collection, n.d.). the un general assembly passed a resolution in 1975 specifying that any abuse and cruel, inhuman, or abusive treatment or punishment is beyond human self-respect and is a breach of human rights and basic liberties. further, the convention on the elimination of all forms of discrimination against women emphasises the importance of eliminating segregation that denies or restricts women’s representation in politics, economy, education, culture, and public participation (convention on the elimination of all forms of discrimination, 1979). the un general assembly also ratified the convention against torture and other cruel, inhuman or degrading treatment or punishment in 1984. the convention requires http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 8 governments to regard abuse as a crime and to prosecute and execute those who commit it; neither greater orders nor extraordinary circumstances will warrant torture (torture convention, 1984). however, the most critical consideration would be that the un has no compliance powers, even in accordance with chapter vii of the un charter that only relates to the un security council’s (unsc) intervention against violations of peace and performances of violence (un charter, chapter vii, 1945). it is noteworthy that iraq is a signatory of most of the human rights conventions and is responsible for any human rights violations (un human rights treaty bodies and data base, n.d.). 4. kirkuk province kirkuk province is a disputed area located on the border between iraq and kurdistan region. sunni kurds, sunni arabs, and sunni and shia turkmen make up the population, along with a small number of chaldean and assyrian christians. the city of kirkuk is located in the kirkuk province, which also includes the districts of dibis, hawija, and daquq (international crisis group, 2018; european union agency for asylum, 2021). kirkuk is an oil-rich city with oil pipelines to tripoli, lebanon and yumurtalik port in turkey. crude oil production promoted the city’s long-term development (tikkanen, 2011). although the majority of kirkuk’s population is kurdish, the ba’ath party’s arabization 3 programme has increased the arab population five-fold in official censuses over the past 40 years (anderson, 2009, p. 43). therefore, the population of kirkuk was estimated to consist of 178,000 kurds, 48,000 turks, and 43,000 arabs based on the census conducted in 1957 (kurdish project, n.d.). meanwhile, the census registration records of 1957, iraqi ministry of interior, the general population directorate showed that the population of kirkuk comprised 48.3 percent kurds, 28.2 percent arabs, and 21.4 percent turkmen, along with assyrians, chaldeans, and other communities (cited from talabany, 2007). however, kirkuk’s population can only be estimated because since the 1957 census, no reliable data have been made available (saeed, 2017). according to the ministry of planning of kurdistan regional government (krg), the population of kirkuk is estimated at 1.2 million people (westganews, n.d.; kurdistan region statistics office, n.d.). meanwhile, the ministry of planning of iraq federal government estimated the population of kirkuk at 1.5 million (“kirkuk is a province in iraq”, n.d.). it is clear that there is no accurate and definitive census that portrays the true population of kirkuk. kirkuk is situated in a contested region in iraq that extends from sinjar on the syrian border to khanaqin and mandali on the iranian border. it has been a disputed area for over 80 years, as the kurds want kirkuk to be a part of the kurdistan region; however, 3 arabization is a policy and process in which the former ba’athist government forcibly displaced hundreds of thousands of kurds from their homes in 1975 and brought in arab populations to replace them. for further information see washington kurdish institute report (2021). http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 9 this proposition has been opposed in arab and turkmen-populated areas (bartu, 2010; galbraith, 2008). historically, the kirkuk province presents an unresolved longstanding issue between kurdistan regional and iraqi federal governments. it is the subject of the bulk of issues and conflicts between both parties, including those involving human rights, land, security, oil, and the kurdistan region’s border (washington kurdish institute, 2021). according to article 140 of iraq’s constitution, the issue of kirkuk must be solved through “normalisation and census and referendum”.4 5. kirkuk’s issue under un resolutions the un emphasises the idea of avoiding conflict and developing stability and peace. therefore, the un charter specifies war prevention as one of the organisation’s primary goals. the unsc, among other un organs, plays a crucial role in preserving peace and security. once the presence of a risk or an act of aggression is identified, the unsc will seek to resolve the conflict amicably and in accordance with the agreed terms stated in chapter vii of the un charter (alexandridi, 2022). hence, the unsc has played its role in iraq in ensuring peace and security, especially concerning the issue of kirkuk. the united nations assistance mission for iraq (unami) was established by the unsc via resolution 1500. the mission was approved on 14 august 2003 to help the un secretary general in carrying out its mission through resolution 1483, based on the construction and obligations outlined in its statement declared on 15 july 2003, for a period of 12 months (unami, 2003). currently, the authorisation for unami has been further extended by the unsc until 31 may 2023 via resolution 2631 (unsc, 2022). in resolution 1770 (2007), the unsc council used the term “disputed internal boundaries” for the first time. in paragraph 2 of the resolution, the unsc specified that unami should counsel, promote, and help the iraqi government in addressing certain issues, such as the disputed internal boundaries when conditions permit. at the appeal of the iraqi government, the special representative of the secretary-general and unami will “recommend, support, and provide assistance to the iraqi government and the council of representatives on constitutional appraisal and application, as well as the establishment of procedures that are appropriate to the iraqi government for resolving contested internal borders” (“unsc resolution 1770”, 2007). when unami was formed, the human rights office had to determine how it would operate. since the beginning of its participation in iraq, the un has prioritised human rights matters. the two secretary generals’ reports to the unsc in 2003 provided 4 article 140 of the iraqi constitution enacted in 2005 states that “the responsibility placed upon the executive branch of the iraqi transitional government stipulated in article 58 of the transitional administrative law shall extend and continue to the executive authority elected in accordance with this constitution, provided that it accomplishes completely (normalisation and census and concludes with a referendum in kirkuk and other disputed territories to determine the will of their citizens), by a date not to exceed the 31st of december 2007”. http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 10 comprehensive evaluations of the country’s human rights situation. according to paragraph 7(b) of resolution 1546 issued in 2004, the human rights office’s mission is to “advance the shelter of human rights, peace building, and lawful and judicial restructuring in order to enhance the rule of law in iraq” (pace, 2008). it is imperative to refer to paragraph 6 of the unsc’s resolution 1936 (2010), issued in 2011, on the situation in iraq. the paragraph stresses “the need to review the joint security mechanism established to strengthen the security forces of the iraqi government and the kurdistan region by conducting joint patrols between the arab and kurdish areas in the provinces of diyala, nineveh and kirkuk” (“unsc resolution 1936”, 2010). further, according to this resolution, the security administration of kirkuk province should be shared between krg and the iraqi federal government. the unsc, through two other resolutions 1883 and 2299 issued in 2009 and 2016, respectively, emphasises the term “disputed internal borders”. it also underlines the importance of all iraqi communities participating in the governance system and an open political dialogue, refraining against making remarks and decisions that could cause conflict, reaching a detailed resource delivery solution, developing a just and equitable solution for the country’s contested internal borders, and working towards national unity (“unsc resolution 1883”, 2009; “unsc resolution 2299”, 2016). the resolutions maintain the unsc’s position of “emphasizing the significance of the un, particularly unami, in informing, promoting, and helping the iraqis, comprising civil society, and the iraqi federal government in strengthening democratic bodies, advancing comprehensive political negotiation and peace building in accordance with the constitution, coordinating settlement attempts, and facilitating local negotiation, progress procedures that are appropriate to the iraqi federal government for resolving internal boundary disputes” (“unsc resolution 1883”, 2009; “unsc resolution 2299”, 2016).the unsc appears to have obliged both the iraqi federal government and krg to solve their internal boundary disputes peacefully based on the iraqi constitution (azizi, 2018). on 18 october 2017, the unsc released a press declaration in response to resolution 13036, expressing concern about reports of violence near the kirkuk province. it stated that “members of the council urged all parties to stop using violence and instead participate in positive dialogue as a method of reduction of tensions and preserving iraqi unity while preserving the iraqi constitution’s clauses. the members reconfirmed their support for iraq’s sovereignty, territorial integrity, and solidarity, and also the significance of focusing on the fight against the terrorist organisation known as islamic state of iraq and syria (isis). they also expressed their complete backing for un attempts to encourage cooperation between iraqi stakeholders” (“unsc resolution 13036”, 2017). in 2020, after a six-month absence, a commission charged with resolving the fate of the contested province of kirkuk returned to work under the oversight of the un and iraq’s president and prime minister. kurds, arabs, and turkmen make up the commission, which reflects the variety of the troubled province. the commission’s goal is to reconcile http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 11 long-standing sectarian differences. the commission’s task has resumed in the face of increasing pressure from kurdish and turkmen groups, which claim that the existing local government in kirkuk is pursuing an arabization project in the province in addition to ongoing assaults by isis (mohammed, 2020). consequently, several un resolutions have been issued, and they are lawful and will continue to be lawful until a final resolution of the conflict is achieved. clearly, the unsc does not allow violence against human rights in the city of kirkuk. thus, the protection of human rights in the kirkuk province must be considered, and the iraqi government is responsible for protecting the people of kirkuk. 6. fundamental rights in the iraqi constitution this section discusses the fundamental principles of human rights enshrined in the iraqi constitution. the purpose of this section is to present a constitutional commitment to protect the fundamental rights of the iraqi people in general and kirkuk province in particular without discrimination. therefore, the iraqi federal government must follow this constitution in this context. the current iraqi constitution was adopted in 2005. there are several articles relating to the human rights protection of the iraqis, including political, religion, education, economic, and cultural rights. the first part of the constitution, dealing with fundamental rights, applies to the province of kirkuk as it is under the iraqi federal administration by virtue of the constitution. it consists of several articles, including article 2(2), which ensures the religious right of iraqis. the article stipulates that “this constitution guarantees the islamic identity of the majority of the iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as christians, yazidis, and mandean sabeans”. article 4 gives all iraqis the right to exercise their own native languages and recognises the use of both kurdish and arabic languages as the official languages in government institutions. it states that “both arabic and kurdish remain recognized as formal languages in iraq. according to educational criteria, people of iraq shall be permitted to teach their kids in government-run educational facilities in their mother tongues, such as turkmen, assyrian, and armenian, or in any other language in privately.” article 13 emphasises the supremacy of the constitution over all iraqis, stating that “the iraqi constitution shall apply uniformly throughout iraq as the primary and final source of law”. the other part of the constitution, which is relevant to rights and freedom, applies to the people of kirkuk. in the first chapter including political and civil rights, article 14 provides that “regardless of sexuality, ethnicity, race, citizenship, birthplace, colour, religion, sect, opinion, or social or economic standing, all people of iraq are treated equally under the law.” article 15 guarantees the right to protection of iraqi people’s life, stating that “everyone has the right to freedom, safety, and the enjoyment of life. the infringement or limitation of these rights is illegal unless authorized by law and supported by an order from a court with appropriate jurisdiction”. article 16 gives iraqis the right of equal opportunities, stipulating that “all iraqis shall be given equal opportunities, and the state must ensure that appropriate steps are taken to make this happen”. http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 12 according to article 17, “first, everyone has the right to their own privacy as long as it does not conflict with the rights of others or the general good. second, the dwellings’ safety shall be preserved. homes would not be invaded, inspected, or damaged unless authorized by a court order that complies with the law”. article 19 provides iraqi people the protection of personal rights, stating that “everybody’s right to engage in litigation shall be preserved and protected. in every stage of the inquiry and the trial, the right to a defence shall be protected and preserved. in both legal and administrative actions, everyone has the right to be treated fairly”. article 120 safeguards the political rights of the iraqi people by stating, “iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office.” the chapter also emphasises economic, social, and cultural liberties. article 22 (1) states that “all people of iraq have a right to work in a manner that provides they can live in dignity.” article 23 stipulates that “private property is protected. the owner shall have the right to benefit, exploit and dispose of private property within the limits of the law. ownership of property for the purposes of demographic change is prohibited.” according to article 24, “the state shall guarantee freedom of movement of iraqi manpower, goods, and capital between regions and governorates, and this shall be controlled by law.” article 29 ensures that “the family is the cornerstone of society; as such, the state is obligated to protect it, along with its national, religious, and moral values. the state is required to ensure that women, kids, and the elderly are protected, to care for kids and youth, and to offer them the right environment in which to grow in their skills and capacities.” article 30(1) provides that “the state shall ensure that each person and family, particularly kids and ladies, has access to health and social protection, as well as the necessities for a free and dignified life, including adequate housing and earnings.” the second chapter of this part highlights the rights to freedom. article 37 states that “first, man’s freedom and dignity shall be upheld. no one may be held in custody or subjected to an investigation unless authorized by a court order. torture, both psychological and physical, as well as cruel treatment, are not permitted. any confession obtained through coercion, torture, or threats is not admissible as evidence, and the victim is entitled to legal restitution for any physical and psychological harm they endured. second, the state shall ensure that each person is free from intellectual, religious political and intellectual pressure”. article 38 provides that “in a manner that upholds morals and public order, the state shall ensure: first, the right to express oneself in whatever way. second, freedom of the press, including printing, publishing, advertising, and media. third, the right to freedom of association and peaceful association, which shall be governed by law”. article 42 says that “each individual shall have the freedom of thought, conscience, and belief.” article 46 emphasises that “any of the rights or liberties guaranteed by this constitution may not be restricted or limited in any way, except authorized by law or on the grounds of a law, and only to the extent that the limitation or restriction does not go against the fundamental nature of the right or freedom”. http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 13 in the light of above, it is clear that the iraqi constitution strongly emphasises the iraqis’ fundamental rights, including cultural, political, security, economic, and religious rights. however, krg is concerned about the human rights violations of the kurds in kirkuk, and these violations are elaborated in the following section. 7. overview of the human rights violations in kirkuk human rights violations have been committed by militants operating in iraq since 2003. the explosion of the un headquarters in baghdad in august 2003 killed the top officials in iraq, illustrating the significant risk at the time (“who are the iraq insurgents”, 2006). the explosion killed 22 un employees and wounded over 100 others. the executive director of the world health organization (who) in charge of external relations and governing bodies was also among the deceased. (“un observes 5th anniversary of terror attack”, n.d.). since 2014, violence has escalated, mainly as a result of the acts of militant organisations such as shia’s hashed al-shaabi militants and isis (“iraq human rights report”, 2017). the rising power of the militant groups has led to deteriorations of the human rights situation in kirkuk and has fragmented the security authority of the federal government over its institutions in the province. assaults by militant groups are the greatest security issue for the populations of the kirkuk province. there are numerous state and non-state security armed and militia groups, including isis, in kirkuk. some groups have vastly different power bases, agendas, and levels of commitment to the federal government while other groups receive orders from outside the government and from external parties such as kata’ib iraqi hezbollah, badr organization, asa’ib ahlhaq, kata’ib sayyid alshuhada and kata’ib hezbollah al-nujaba. all these armed groups belong to iran (rached & bali, 2018). the government-supported armed groups govern the city of kirkuk, while others govern the spot check and roads around kirkuk (kassim et al., 2020). these various armed groups typically have varied ethnic and sectarian make-ups. therefore, the life of the people of kirkuk reflects this diversity, which indicates the concurrent existence of many armed militants (“international religious freedom report”, 2021). the violations of human rights by militant groups in kirkuk province can be classified into two subsections: 7.1 displacement and humanitarian aspect many kurdish families began to fear sectarian violence and fled kirkuk after iraqi militant groups regained control of the city. the un estimated that slightly more than 100,000 civilians had left the city by 21 october 2017. many people returned shortly after, but over 99,700 civilians remain displaced in the province as a whole, comprising those expatriated by the militant groups such as isis (westcott, 2019). the legal system is hampered by the various security players’ division of power and authority. in the current volatile environment, the instability of the government’s security authorities has led to the increased power of isis in the far west and across vast villages around iraq, most notably in kirkuk. according to a report by the unsc on 11 january 2019, the number of isis militants in iraq and syria exceeded 14,000 (“unsc report”, 2019). further, according to a report by the international institution oxfam, the attacks http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 14 by isis on civilians and security agencies in kirkuk were more than 33 per month in 2018. this situation has a detrimental effect on the general security of kirkuk and impacts how safely and fairly people can receive necessary services and protection (kassim et al., 2020). in other words, militant armed groups have caused the people of kirkuk to face several challenges, including in achieving security, social protection, employment, and in curbing sexual identity abuse. isis burned farmers’ crops, which are the source of their livelihood. according to a spokesperson of the civil defense of kirkuk, 10 acres of farmers’ land were burned (ghareeb, 2020). meanwhile, the security media department of iraq alleged that isis looked for innocent farmers to use as hostages. in an assault, six farmers were killed and their lands were set on fire (mahmoud & mustafa, 2022). after the iraqi army and iranian-backed shia hashed al-shaabi militants seized control of the multi-ethnic and religious province of kirkuk on 16 october 2017, they dismissed the kurdish governor of kirkuk from his office and installed an arab governor. since then, there have been systematic human rights violations and abuses against kurds in retaliation to the 25 september 2017 referendum on independence for the kurdistan region. over 180,000 residents, mainly kurds, were also expelled from kirkuk and other contested cities as a result of the assault of 16 october such as dibis, daquq and tuz khurmatu, and they suffered from arson, robbery, and intimidation (riva, 2017; saeed, 2017). subsequently, the people of kirkuk are concerned over the issues of employment and services due to the situation where security was under the control of the armed groups. several demonstrations were held to demand their basic rights. therefore, jeanine hennisplasschaert, head of unami, spoke with women, young people, and members of civil society about the fundamental and immediate needs of the public as well as issues related to human rights (“kirkuk activists share concerns”, 2022). according to a report by washington kurdish institute on 9 may 2022, the iraqi federal government is still constructing the security foundations and conducting spot checks in civilian districts in the kirkuk province in order to dissatisfy the local kurdish population. kurdish locals think that this is a tactic used by the federal government to force kurds out of the province (washington kurdish institute, 2022). the militant groups encourage arab families to seize kurdish families’ agricultural lands by using unlawful evidence in the province. for instance, in 2019, approximately 200 arab sunni nationals went to a kurdish sub-district named sargaran to set up residence and possess properties using forged certificates. kurdish villagers in palkana were also threatened by hashed al-shaabi militants and iraqi federal government soldiers if they did not abandon their properties (ali, 2019; hussamadin, 2020). human rights watch (2003) reported that the u.s and allied powers refused to restore rule and order in kirkuk and guarantee the safety of its citizens. thus, the geneva convention clauses, which define an occupying power’s responsibility, have been violated. the report maintained that many people had been killed in kirkuk city and that robbing and forced deportations had continued to occur. all the national minorities in the city had http://10.17561/tahrj.v20.7374 sanh shareef qader the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 15 been affected by extensive robbing and property damage, whilst the condition beyond the kirkuk seemed to become even more unstable. furthermore, the independent commission of human rights in kurdistan region urged un agencies, embassies, and diplomatic staff in iraq to establish a global reality commission of inquiry against the abuses perpetrated by iranian militia groups in iraq and syria, specifically in disputed districts including kirkuk, tuz khomartu, sinjar, and khanaqin. the committee also emphasised the importance of international mediation so as to start a negotiation between baghdad and erbil in order to resolve all the remaining problems according to iraq’s constitution (“middle east report”, 2018). according to a report by unami on 19 october 2017, the un is concerned about reports of homes, businesses, and governmental institutions being destroyed or looted, as well as the ethnic cleansing of people, mostly kurds, in disputed areas by militant groups (unami, 2017). in 2011, iraq ratified the un convention against torture and embraced the universal declaration of human rights (un treaty collections, n.d.). this obligates the iraqi federal government to protect the human rights of everyone in kirkuk, including all minorities, without discrimination. however, according to a research report published in 2020 by the kirkiknow website, it had received over 2,000 complaints from the province of kirkuk. most of the complaints were concerned with violations of human rights, abductions, and devastation in the rural communities. meanwhile, a report by the centre for regional and international studies from the kurdistan university at kurdistan region of iraq in 2019 declared that krg protested humanitarian violations in kurdistan areas which are outside the krg (university of kurdistan hewler, 2019). in a speech, the prime minister of krg called on the iraqi federal government and international institutions to “urgently intervene and put an end to these inhumane practices”. he also requested that the un assign a fact-finding team to explore and gather information thereof (riva, 2017). as mentioned above, kirkuk is a disputed area that has experienced various arabization processes over the course of history in order to change its demographics. hence, the president of kurdistan region called upon the un to play its main role in solving the issues between the iraqi federal government and krg, especially concerning the issue of article 140 of the iraqi constitution (gly, 2019). 7.2 freedom of expression, discrimination and cultural rights freedom of expression is another issue of concern in the kirkuk province. according to an annual report published by press freedom advocacy association in iraq, from 3 may 2021 to 2 may 2022, with 37 violations reported, the kirkuk province came in second after baghdad, the capital of iraq. the violations were abductions, death threats, abuse during coverage, captures and detentions, defeats, closure of tv channels, and unlawful dismissals (“world press freedom day/iraq”, 2022). after the 10 october 2021 parliamentary election, a large-scale operation by an iraqi security unit including popular mobilization forces (hashdi shaabi militants) in the kirkuk province led to the arrest more than 50 young kurdish boys for celebrating the victory of a kurdish party (sherwani, 2021). http://10.17561/tahrj.v20.7374 a study on the human rights situation in kirkuk the age of human rights journal, 20 (june 2023), e7374 issn: 2340-9592 doi: 10.17561/tahrj.v20.7374 16 discrimination is also another form of violation committed by the militant groups. according to krg, along with the kurdish population, the christians and other religious and ethnic minorities were also victims of the armed groups’ attacks (“international religious freedom report”, 2021). another human rights violation is violating the native language of the minorities within the kirkuk province. the government of kirkuk has removed kurdish from official signages and is using the arabic language exclusively. therefore, the kurdish people have requested the province’s administration to rescind a decision to limit the language used on public signs to arabic and some english in the multicultural metropolis (sirwan, 2021). the iraqi federal government prohibits using kurdish terms in correspondences with the nation’s gas corporation. for instance, the oil ministry of iraq has formally forbidden using the kurdish language at the government-owned north gas company (“iraq bans use of kurdish phrases”, 2018). in light of the above, it can be said that there has been blatant violations of human rights in kirkuk. these are real violations of international human rights instruments and conventions. the cause of the violations can be traced to the presence of militant groups as well as the fragmented security ability of the federal government of iraq in the kirkuk province. 8. conclusion the paper concludes that everyone has their own natural and legal rights in society. conceptually, natural rights are those that accord citizens the freedom to defend themselves, while legal rights offer a framework for restricting unwarranted state control over society. in other words, human rights are the principles that protect all people based on their own life framework within the world from political, legal, and social violations. such rights include the rights to freedom of expression, justice, education, work, and security. due to the significant human rights violations during first and second world wars, the international community paid close attention to human rights, giving them an international legal base. the un charter and the udhr are the two main international legal conventions that emphasise the protection of human rights by states. these are followed by several other international instruments and conventions. this paper focused on the issue of human rights violations in the kirkuk province. it explained the un representatives’ role in the province regarding the protection of ethnic minorities in the disputed area between the iraqi federal government and krg. several resolutions of the unsc focus on the peace and security in kirkuk. further, iraq’s current constitution also demonstrates emphasis on these fundamental rights. the constitution provides for human rights for all the different ethnic groups that live in iraq. it obligates the iraqi federal government to ensure the right to live, security, work, and freedom for iraqis without any discrimination. iraq is also a signatory of most of the international conventions related to the protection of human rights. however, this paper found 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(2015). empowerment of human rights: its requirements and contraindications in the arab world (doctoral thesis, batna 1 university, algeria). file:///c:/users/sanhk/downloads/dr%20%d9%81%d8%a7%d9%83%d9%8a %d8%a9%20%d8%b3%d9%82%d9%86%d9%8a.pdf. received: 25th august 2022 accepted: 17th december 2022 http://10.17561/tahrj.v20.7374 file:///users/journals/desktop/../../sanhk/downloads/dr%20فاكية%20سقني.pdf file:///users/journals/desktop/../../sanhk/downloads/dr%20فاكية%20سقني.pdf a study on the human rights situation in kirkuk abstract 1. introduction 2. concept of human rights 3. legal position of human rights 4. kirkuk province 5. kirkuk’s issue under un resolutions 6. fundamental rights in the iraqi constitution 7. overview of the human rights violations in kirkuk 7.1 displacement and humanitarian aspect 7.2 freedom of expression, discrimination and cultural rights 8. conclusion references books journals websites reports un documents theses protecting citizens against bureaucratic abuse and maladministration: why is nigeria's ombudsman institution not working well? the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 1 protecting citizens against bureaucratic abuse and maladministration: why is nigeria’s ombudsman institution not working well? solomon i. ifejika1 abstract: in 1975, with decree no. 31, the federal military government of nigeria established the public complaints commission as the country’s ombudsman institution. charging it with the responsibility for protecting the citizen’s rights in the administration, decree no. 31 was an enabling law to the 1974 report of the public service review panel instituted by the military government in 1974 to appraise and revamp the country’s public service. following nigeria’s return to democratic rule in 1999, the commission’s establishment law became known as the public complaints commission act, cap p37 of laws of the federation of nigeria 2004, which sustains its existence and operation in the present fourth republic. notwithstanding, the commission’s performance has largely remained unsatisfactory for being unable to effectively deliver on its statutory mandate. this conceptual study, therefore, investigates the main factors accounting for the ineffectiveness of the nigerian ombudsman institution. the study relies on qualitative data generated from secondary sources, which was analyzed using the thematic analysis technique of qualitative data analysis. the work finds that, among other issues, the lack of independence and legal capacity to punish offenders, are the key impediments to the effectiveness of the commission. the study thus recommends, among other things, the amendment of the commission’s establishment act to grant the institution independence from the executive and legislative arms of the nigerian federal government and confer on it punitive powers, as workable measures for repositioning the nation’s ombudsman institution for improved performance. keywords: bureaucratic abuse, citizenry, maladministration, public complaints commission, ombudsman institution. summary: 1. introduction. 2. literature review. 3. methodology. 4. theoretical framework. 5. a brief evolutionary history of nigerian ombdusman. 6. establishment legislation and composition of nigerian public complaints commission. 7. appointment of commissioners of the commission. 8. powers and duties of the commissioners. 9. statutory limitations to exercise of powers by the commissioners. 10. impediments to the effectiveness of nigerian public complaints commission. 11. lack of independence. 12. lack of legal punitive capacity. 13. insuficient funding. 14. inadequate publicity. 15. illiteracy and ignorance. 16. deficiency in the establishment act 17. solutions to the problems. 18. conclusion. 1. introduction governments function and administer basic services to the citizens through their various institutions. these institutions and/or their officials, while discharging their statutory responsibilities to the public, sometimes indulge in certain illegitimate acts. 1 phd, department of political science and int’l relations, college of business and social sciences (cbss), landmark university, nigeria (solomonifejika@yahoo.com). http://10.17561/tahrj.v20.7327 mailto:solomonifejika@yahoo.com protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 2 this both contradicts the very essence of their existence and undermines the rights and interests of the citizenry they are intended to serve. given the primary role of the state to guarantee the protection of the citizens’ rights, most governments across the world have instituted an authority at various levels through which the citizens can lodge complaints against public entities or their officials, and seek redress regarding any issues of corruption or abuse of office or power (hayes, 2022). this authority is dubbed the “ombudsman”, which refers to a state official saddled with the responsibility for exercising checks on the activities of governmental organizations with the aim of protecting the citizens’ rights, and it has the powers to conduct investigation in an effort to resolve complaints by private individuals pertaining to any abuses or improper activities by government agencies (aina, 2012; hayes, 2022). therefore, the ombudsman system exemplifies government’s commitment to its important obligation of protecting the rights of the citizenry, by guarding them against possible administrative brutalities and malfeasances by public agencies or officials. the ombudsman is known by various specific appellations in different contexts, including, for example, public advocate or national defender (hayes, 2022), however, its primary purpose and usefulness remains the same. nigeria’s own national ombudsman body is the public complaints commission (pcc), established in 1975. in tandem with the generic rationale the ombudsman institution, the public complaints commission is responsible for handling citizens’ “complaints of injustice, corruption, unfair treatment and abuse of office by public officers” (abasiekong & uzoma, 2019, p. 2). however, the performance of the pcc has over the years left very little than deserved in terms of its effectiveness in redressing issues of administrative corruption and misuse of office in the nigerian public service (osegbue & madubueze, 2017; afegbua & adejuwon, 2015; osakede & ijimakinwa, 2014; awopeju & oyewole, 2011), prompting a deep feeling of dissatisfaction among majority of nigerians. this paper is specifically concerned with probing the underlying issues responsible for the debility of the nigerian ombudsman institution under the current democratic era, with the aim of proffering solutions to the nigerian ombudsman’s presumed weakness in the discharge of its statutory duties. conceptual interrogation of this topical issue is of high significance, mostly as it creates a window of opportunity for the present muhammadu buhari-led federal government to evaluate the usefulness of this “all-important” institution in line with the administration’s popular standpoints of “zero-tolerance for corruption” and “good and inclusive government” in nigeria. 2. literature review in the wake of the widely observed ineffectiveness of the traditional institutions and practices for counterbalancing or curbing arbitrariness of public officials, ombudsman, which became a vital component of public sector reformation in the twentieth century, surfaced as a new structure to uphold scrupulous behaviours in public service (afegbua & adejuwon, 2015). consequent upon this, “ombudsman institutions (ois) have become a common feature of most countries’ institutional framework” (organisation for economic co-operation and development [oecd], 2018, p. 4). as it has been observed, the demand to revolutionize and simplify governmental policy administration procedures requires a http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 3 professional and receptive public service and apposite accountability frameworks (bukhari & asif, 2013). the ombudsman hence exists commonly to improve public administration, by identifying weaknesses in the laws, processes, conventions, principles, and guidelines for official behaviours (ebiziem & amadi, 2015). that said, “over the decades, ombudsman is considered as an essential element of the democratic system of the state” (batalli, 2015, p. 232). according to osakede and ijimakinwa (2014), ombudsman in every state serves as the “ears” of the people, in that it provides the apparatus for resolving citizens’ discontentment in a democracy. apparently, with the progression of countries towards strengthening democratic practices and the defence of human rights, ombudsman institutions have abruptly proliferated all over the globe (oecd, 2018). in the swedish context where the idea and practice originated, “ombudsman” is english translation of the swedish word “ombuds”, meaning “representative” and “man”, implying “person” (sander, 2013). the ombudsman concept became integrated into the swedish constitution in the nineteenth (19th) century to provide the parliament with the required machinery to superintend over the execution of government administration and that of the judiciary (oecd, 2018). the expanded complexities in the environment within which public administration functions in the contemporary times and the innate subsisting deficiencies in the public sector sphere have provided substantial grounds for general acknowledgement, consensus and incorporation of ombudsman in public administration. further aggravating these complexities are the financial repressions being faced by majority of governments and the declining standards of public service delivery (bukhari & asif, 2013), which is felt mostly by the ordinary citizens. besides, governance itself is a complex activity and its direct effect on the citizens’ lives necessitates the existence of a guardian that would ensure that government conducts its daily responsibilities without infringing on the basic rights of the citizenry, while guaranteeing that public officials maintain ethical guidelines (fajonyomi, 2012). tonwe (2013) states that the extension in recent times of the spheres of responsibilities of government into different aspects of human life that were not formerly under its purview brings with it rising propensities for disputes between the citizenry and the states, especially with reference to basic human rights and liberties. the broadening of government’s functions and the attendant possibilities for incessant frictions with citizen’s interests and yearnings necessitated the formalization of mechanism through which the citizens can have their grievances resolved in the various states across the globe (fajonyomi, 2012). it is for this reason that the influence of the ombudsman institution has continued to increase daily in the present time (batalli, 2015). the presence of an ombudsman enables the citizens to seek redress when there is a deviation from the expected ethical conduct on the part of government officials (afegbua & adejuwon, 2015), and organizations in the course of delivering services to the citizens. with its autonomy, neutral posture, and wide investigative powers, ombudsman essentially operates effectively in most polities (batalli, 2015). agreeably, the ombudsman everywhere in the world enjoys the powers to carry-out fact-finding exercise on issues that fall under its jurisdiction, as well as in relation to concerns http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 4 tabled before it by disgruntled citizens. this power of the ombudsman to institute probe is undisputedly confirmed to have been effective in reducing disputes to related subjugation and corruption or maladministration, even as witnessed in scandinavian countries (osakede & ijimakinwa, 2014). thus, as an independent, high-ranking authority, ombudsman assists the citizens in addressing their concerns with the administration, and it qualifies as an extra defensive instrument with validity for both the citizens and the administration (sander, 2013). in consolidating this viewpoint, batalli (2015, p. 232) opines that, “ombudsman presents a new type of guarantee for the rights and fundamental freedoms of individuals and organizations”. this assertion finds credence from the observed inherent capability of the ombudsman institution to both reposition public organizations to serve the citizens better and the ability of the citizens to demand restitution should their right, for example, to standardize services be trampled upon. the uniqueness of the ombudsman lies in the fact that, it “…deals with unfair administrative measures which are not suitable for judicial review as for instance when the official concerned cannot be sued or where the facts of the case cannot be proved in the courts but may be uncovered through a non-judicial investigation” (osegbue & madubueze, 2017, p. 43). by this, the ombudsman system also functions as a veritable instrument for enhancing openness and accountability in public administration. batalli (2015, p. 235) avers that, “the ombudsman as an institution presents a dedication to the consolidation of the democracy and an instrument of control, transparency and accountability, to protect citizens’ rights and freedom and to fight maladministration”. in latin america, where most of the ombudsman organizations were instituted in the 1990s, the region was undergoing radical institutional transformations directed towards enhancing and strengthening accountability and democratic governance, among other goals (oecd, 2018). the oecd (2016) explains that the task of the ombudsman institution as the guardian of public interest and its understanding and ability to mediate in problems encountered by citizens in the course of interfacing with the public administration puts it on a suitable footing to advance open government policies and programmes in all jurisdictions. along the same line of thought, osegbue and madubueze (2017, p. 40) state that, “posing as the defender of civil rights against the arbitrariness of bureaucracy, it is no longer confined to the horizontal relationship between authorities but is also part of the vertical control of the state by citizens. as such, it combines the two basic dimensions of accountability in democratic systems”. overall, the relevance of the ombudsman institution in a state is multifaceted. 3. methodology this conceptual and qualitative study examines the issues accounting for the ineffectiveness of the ombudsman institution in nigeria with the view to suggesting workable measures for addressing them. the data for the study were obtained from secondary sources, including journals articles, books, government publications, publications of nigerian ombudsman organization – the public complaints commission, such as its annual reports, newspapers, and websites. the data were analyzed using the thematic method of qualitative data analysis, to achieve the objective of the study. http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 5 4. theoretical framework this study adopts the utilitarian theory to advance the substance of its argument concerning the subject matter of the current research. the utilitarian theory epitomizes one of the many prominent and authoritative methods in normative ethical or moral philosophy. the most notable exponents of the utilitarian theory are jeremy bentham and john stuart mill (tardi, 2021). the theory surfaced in the 19th century, and is of various versions but all the utilitarian theorists hold the common notion that an action is adjudged morally correct if it elicits the greatest measure of good or happiness (driver, 2014). the main thrust of the theory is that every human being as a matter of rule seeks happiness, and pleasure solely is good, but it is only the actions which engender the most happiness for the highest number of the largest number of people in society that are morally right (mukherejee & ramaswany, 2006). therefore, as an ethical theory, utilitarianism espouses conducts or activities that promote happiness or pleasures and opposes deeds that bring about sadness or misery (tardi, 2021). the utilitarian theory is thus a variant of consequentialism, which is a doctrine in ethics that bases the rightness or wrongness of actions on the results or outcomes they produce (duignan, n. d.). the classical theorists of utilitarianism, bentham and mill, related the good with pleasures. they also argue that every individual should maximize the general good, that is, regard the good of others along with his or her own good (driver, 2014). in the view of quinton (1989, p. xi), “ordinarily utilitarianism, along with some other moral theories and a lot of religiously inspired moral stock responses, is utopianly altruistic. it implies that in every situation in which actions is possible one should choose that possibility which augments the general welfare”. for example, the utilitarians would recommend that every individual obeys the laws that guarantee equilibrium between his or her good and that of society in entirety (rhodes, 1986), not for the person alone. by this, utilitarianism differs from other theories of consequentialism, particularly egoism, which advocates that every individual ought to seek after his or her personal interest alone, regardless of whether that would jeopardize the good of other people, and other moral theories that do not consider the rightness or wrongness of an action on the basis of the outcomes (duignan, n. d.). a silent implication of utilitarianism’s position is that, the theoretical tradition shuns individualism and calls for habitual selfless sacrifices, as a way of increasing the general level of happiness and lessening misery in the world. the three main maxims upon which classical utilitarianism rests include, “the maximization of happiness; the definition of happiness as pleasure and absence of pain; and impartiality between individuals in the calculation of happiness” (hayry, 2020, p. 346). this means that utilitarianism aims to attain the betterment of “all” as against the betterment of “one”. clark (2000) explains that the weakness of the utilitarianism is that the theory does not as a singular postulation offer examination of the morality of human conducts, but its strength lies in the fact that it does provide an overly crucial rationale for utility. in singer’s (2006) opinion, a major shortcoming of the theory is that it is too demanding, while one of its huge benefits in public life is its impartial posture. vance and trani (2008) confirm that the inclusivity of utilitarianism is its critical feature; it http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 6 considers all. singer (2006) also states that utilitarianism requires that, at the minimum, all ought to be considered. it is this utilitarianism’s precondition of comprehensiveness that differentiates it from the most prevalent variety of teleological rationalization, “the ends justify the means” (vance & trani, 2008). it is not only that utilitarianism concerns itself with the ends as against the means of realizing these ends, it also brings into consideration the whole immediate and impending gains and griefs that any individual bears or may bear for being impacted by the act (schumann, 2001). this thinking or concern ordinarily influences every public decision, both on the multinational and national fronts, even though normative and moral ethics are regarded as fragments of the ethical philosophy (singer, 2006). it is the above-identified strengths of the utilitarianism that provide the justification for the suitability and adoption of the utilitarian theory in this study. tardi (2021, para. 1) posits that, “when directed toward making social, economic, or political decisions, a utilitarian philosophy would aim for the betterment of society as a whole”. in light of tardi’s position and the central supposition of the utilitarian theory, which places premium on actions that produce the most happiness for the highest number of people in society, it follows that in public administration, governments, in their choices of policies and institutions, should favour only those that can alleviate the sufferings of the generality of citizens and improve their wellbeing substantially. likewise, the reformation or strengthening of existing but weak government policies and institutions with the aim of increasing their functional effectiveness in the interest of the citizens would generally be considered as an action in the right direction. the public complaints commission, nigeria’s ombudsman institution was established to protect and promote the good of the entire citizens of the country, by shielding them from maladministration and wrongdoing by government organizations and officials, as well as redressing their grievances where there is any. the commission has, however, not lived up to the expectation of the majority of nigerians, as it is not effectively discharging its functional mandate of protecting their rights against administrative perversion, thereby causing unhappiness or suffering among the citizens. 5. a brief evolutionary history of nigerian ombudsman the public complaint commission was set up by federal military government after the country’s civil war, precisely in 1975, following the recommendation of the public service review panel, popularly nick-named the udoji panel or commission, after its head, now late chief jerome udoji (ohaegbu, 2015). the inauguration of the public service review panel itself was precipitated by the observed manifest inadequacies of the nigerian public/civil service in the post-independence era, depicted by its gross inefficiency, poor service delivery and systemic corruption, which were all rooted in its colonial antecedents. in the wake of nigeria’s independence, the country inherited and retained the structures and practices of the british colonial administration’s model of public service (nebo & nnamani, 2015; afegbua & adejuwon, 2015). originally, the colonial public service “was structured in a way that colonial masters extracted the much coveted financial and materials resources needed to control metropolitan powers” (nebo & nnamani, 2015, p. 1). in other words, the british colonial public service machinery in nigeria was primarily fashioned to serve britain’s interest, and not rather to serve the most critical developmental needs of the colony they controlled and exploited. http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 7 as an after effect, when nigerians assumed full political and administrative control of the country at independence in 1960, the bureaucrats that took over leadership positions or offices within the public service system had ingested the colonialists’ attitude of acquiring riches or material goods for self-satisfaction and superiority (tagowa, 1999). hence, there was high level of ostentatious abuse of public office among the nigerian bureaucrats. as nebo and nnamani (2015, p. 1) recount, “instead of improving the lot of nigerians, they [nigerian bureaucrats] were colonial masters in black man skin”. the implication of this is that, like the colonial public service was to the colonizers, privileged nigerian public officials turned the post-colonial public service into an instrument for personal aggrandizement at the expense of the majority of the ordinary fellow citizens. especially, “government officials in position of authority wielded so much power and influence to the detriments of their junior officers and members of the public. several atrocities were being committed on daily basis with impunity. the morale of the public servants was at its lowest ebb” (ohaegbu, 2015, para. 1). more so, the citizens who were at the receiving end of the deficiencies and unscrupulous activities that had permeated the entire administrative system had their rights not properly protected. according to afegbua and adejuwon (2015), the citizens were merely left with the option of challenging arbitrariness and ill-considered acts of administrative officials through the regular law courts, and this system does not facilitate speedy and efficient dispensation of justice. the military institution took over political power in 1966, and by the middle seventies, military rule had become firmly rooted in nigeria (afegbua & adejuwon, 2015), and the military government gave important attention to the bureaucracy. the undesirable state of affairs with respect to the overall conduct of the nigerian public service provoked the widespread insistent uproar for reforms (nebo & nnamani, 2015). thereupon, the then federal military government under the leadership of general yakubu gowon was prompted to constitute and institute the udoji-led public service review commission in 1974, which immediately started carrying-out its responsibility (afegbua & adejuwon, 2015; anazodo et al, 2012). the task allotted to the udoji commission by the military government was to appraise and revamp the public service as a whole with the view to repositioning it for optimal efficient and effective performance geared towards the attainment of the nation’s development aspirations (anazodo et al, 2012). to borrow the words of nebo and nnamani (2015, p. 4-5): the major thrust of the [udoji] commission is[was] to carry out holistic reform of the civil service in terms of organization, structure and management of the public service; investigate and evaluate methods of recruitment and conditions of employment; examine all legislation relating to pension, as regarding all post; establish scale of salaries corresponding to each grade as a result of job evaluation. accordingly, the udoji panel was also “charged with the responsibility to recommend to the government, the solution to the near collapse of the public service sector in nigeria” (ohaegbu, 2015, para. 2). in the end of its assessment of the public service, the panel recommended in its1974 report, among several other things, the http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 8 establishment of public complaint commission to be nigeria’s ombudsman body, which the federal military government approved (ohaegbu, 2015; osakede & ijimakinwa, 2014). afterwards, the military government then went on to promulgate the enabling law to the report of the udoji public service review panel, the public complaints commission decree no. 31 of 1975 (now act), which sets up the commission in october that same year (aina, 2012; awopeju & oyewole, 2011). as recommended by the udoji panel, the nigeria ombudsman was instituted to check and control administrative procedures in government agencies with the aim of ensuring that existing rules and regulations are not flagrantly violated (ohaegbu, 2015). as such, it is purposed “to act as an institutionalized check on the excesses of government functionaries and any abuse of executive power” (mojolaoluwa, n. d., p. 2). put in a slightly different but similar way, “it was established as a way to curb the activities of those in power then. they wielded so much power which was harmful to their subordinates and the citizens of the country” (public complaint commission, n. d., para. 2). in terms of composition, as of 1975, the commission was made up of a chief commissioner and other twelve commissioners who were selected by the then supreme military council (smc) to which the commission itself was responsible (osegbue & madubueze, 2017). the power of the commission is overarching in effect. as aina (2012, p. 2) states: “the commission has power to initiative investigation on its own or upon complaint on administrative action by federal or state agencies, statutory corporations, local government authorities and public institutions and companies whether in the public or private sector and officials therefore”. in 1979, following the public complaints commission (amendment) decree 21, amendments were made to the public complaints commission decree 31 of 1975 by the military government. the rationale was to immunize the commission against legalistic measures in the execution of its legitimate undertakings (osegbue & madubueze, 2017). mojolaoluwa (n. d., p. 2-3) similarly attests that the action by the military government was intended, “…to guarantee its [the commission’s] continued existence, mode of operation and sufficient independence from the legislative and executive arms to ensure unimpeded performance”. furthermore, the status of the commission was raised higher by the 1989 constitution, which in its section 151 re-established it as a federal body to be constituted and be made operational by the president within one year of assumption of office. the 1989 constitution redefined the commission’s composition and powers under part 1 of the third schedule (mojolaoluwa, n. d.). however, with the re-introduction of democratic rule in nigeria in 1999, the legal framework for the public complaints commission has changed. in its section 315, the 1999 constitution of the federal republic of nigeria provides for the adoption of laws that were in existence before it (1999 constitution) took effect, and by virtue of this, the commission’s extant law is now known as the public complaints commission act, cap p37 of laws of the federation of nigeria 2004 (onibokun, 2018). hence, the commission has remained in existence up until the ongoing fourth republic in nigeria. http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 9 6. establishment legislation and composition of nigerian public complaints commission as earlier mentioned, the reinstatement of democracy in nigeria in 1999 has transformed the law establishing nigeria’s pcc from a military decree to an act of the national assembly of the country now called the public complaints commission act. the act establishes the pcc under section 1(1) as a federal government body and refers to it as “the commission”. the commission’s headquarters is domiciled in abuja, nigeria’s federal capital territory (fct) and it has branches in every of the states that make up the nigerian federation. the national assembly is vested with powers to superintend over the commission. as stipulated by section 1(1) and (2) of the act, the commission comprises of a chief commissioner and a number of other commissioners as may be determined occasionally by the national assembly. by virtue of section 1(2), it is also within the powers of the national assembly to determine the number of branches that the commission may establish across the states of the country. while the chief commissioner is under the supervision of the national assembly, the chief commissioner coordinates the activities of all the commissioners of the state branches of the commission. 7. appointment of commissioners of the commission in accordance with section 2(1) of the act, the national assembly appoints the chief commissioner and other commissioners of the pcc, in line with the requirements of the act. a commissioner has a tenure of three years initially and can be re-appointed for another three-year term at the end of the first tenure, but must leave office after serving in this capacity for six years. therefore, the maximum tenure of office for commissioners of the pcc is six years. the national assembly enjoys the power to remove a commissioner at will and whenever it pleases. in view of section 2(4) and (5) of the act, the salaries and allowances of the chief commissioner and other commissioners are paid based on the directive of the president. at retirement, the gratuities paid to the commissioners are also calculated as the president directs. 8. powers and duties of the commissioners section 5(2) of the pcc act empowers every commissioner to initiate investigation in his or her own discretion or in view of any complaints presented to him or her by any individuals related to an administrative activity by the following entities: (a) a department or ministry of the federal or state government; (b) a department of a local government authority; (c) a legitimate company or public organization established by any government in nigeria; (d) a firm founded under or following the company and allied matters act owned either by any government or private persons in nigeria or otherwise; (e) a personnel and employee of any of the forenamed organizations. http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 10 under section 5(3), the act provides that: (a) the power resides with the chief commissioner to establish how complaints are presented; (b) a commissioner is empowered to determine, based on his or her preference, whether or not to inform the public about his actions or planned actions with reference to any specific case, and by what means it does that; (c) a commissioner has power to request for any information deemed imperative for executing his functions efficiently and thus can visit and examine the facility or surroundings of an individual or public or private organizations. a commissioner, according to section 5(3)(d) of the act, retains the power to probe with exceptional attention any administrative acts that are: (i) inconsistent with any statute or injunction; (ii) erroneous in law or unreasonable in the determination of truth; (iii) irrational, discriminatory, repressive or opposed to the regular duties of administrative structures; (iv) inept in encouragement or contingent on inappropriate conceptions; (v) ambiguous or improperly explicated, and then unacceptable; in section 5(3)(e), the act requires every commissioner to possess the capacity to interrogate administrative processes of any courts of law in the country. following the provision in section 5(4 6), if any particular complaints are brought before two or more commissioners at the same time, the power rests with the chief commissioner to choose the commissioner that would handle the issue and his verdicts would be final. all commissioners and staff are required to observe high-level of confidentiality in handling all cases brought before the commission, such that the source or content is not publicly disclosed, but a commissioner can, however, divulge such cases if he in his opinion, deems the action necessary in providing justifications for his findings and proposition. while exercising the powers bestowed on him or her by the act, a commissioner is not responsive to the command or dominance of any other individual or authority. 9. statutory limitations to exercise of powers by the commissioners in section 6(1), the act restrains a commissioner from investigating any cases: (a) that are overtly exterior to his scope of concern; (b) that are undecided by the national assembly, the council of state or the president; (c) that are ongoing at any court of law in nigeria; (d) that are concerning whatever is done or presumed to be done by any member of the armed forces of nigeria or the nigeria police force under the armed forces act, or the police act; http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 11 (e) where the complainant is, in the view of the commissioner, yet to exhaust all possible legal and administrative processes; (f) involving any act or thing done prior to 29 july 1975 or regarding which the complaint is brought after more than twelve months from the date of the act or thing done from which the complaint emanated; (g) where the complainant does not have any individualized interest. section 6(3), specifies that a commissioner is bound by the law to declare the reasons for deciding not to conduct investigation on a complaint brought before him or her, if he or she determines to do so, that is, if a commissioner decides not to probe a complaint. 10. impediments to the effectiveness of nigerian public complaints commission despite the enormous powers granted to nigeria’s ombudsman body by the establishment act, akpa et al (2020) maintains that nigerians have continued to suffer administrative corruption and brutality in an increasing rate even while the commission exists. this is, for example, evident in the steady rise in the number of reported administrative cases in nigeria from 41,889 in 2015 to 54,655 in 2017 and 58,504 in 2018 (pcc, 2015, 2017, 2018). the reason for this appalling situation is that, certain issues constitute major obstacles to the effectiveness of the commission in performing its crucial responsibilities in the interest of the citizens in the subsisting democratic space. the most prominent among these issues are themed and discussed below. 11. lack of independence although section 5(6) states that, the commission and/or commissioners should not be subject to the control of any other persons or authorities in the course of discharging their duties, this is not the case as both the national assembly and the presidency influence the affairs of the nigerian ombudsman. by law, the commission’s staff are appointees of the government of the day (osegbue & madubueze, 2017). on the one hand, the fact that the act empowers the national assembly to appoint and remove all the commissioners of the institution at any time does speak volume about how insecure or prone the office of a commissioner within the nigerian ombudsman body is to control by the legislature (igwenyi et al., 2020). the various segments of nigerian population have persistently clamoured that, “this leaves the fate of commissioners in the hands of the federal law makers, who can remove them even in bad faith and will equally make a commissioner vulnerable” (igwenyi et al., 2020, p. 35). indeed, to avoid being removed from office, the commissioners are ordinarily compelled to do the bidding of the national assembly. this is the more so that the appointment of the commissioners of the commission is based on political patronage (alemika, 2015), rather than on merits. on the other hand, the monthly salaries and retirement benefits of pcc’s commissioners are paid to them in line with instructions of the president. in consistency http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 12 with the maxim, “he who pays the piper dictates the tune”, “this implies or shows that the commissioners are under the executive arm of government and are responsible to the presidency” (obodo & anigbata, 2017, p. 58). commissioners cannot act outside the instructions of the presidency in matters that are of particular interests to the president. this propels abasiekong and uzoma (2019) to state unequivocally that, the government influences and controls the affairs of the ombudsman in nigeria a great deal, adding that it is usually difficult for the institution to objectively stage investigations against the government, and this often results in the abandonment of cases that directly affects the government in a negative sense. the undue influences of the national assembly and the president over the activities of the pcc denies this critical institution the requisite measure of operational autonomy and freedom necessary for it to protect nigerian citizens’ rights optimally in the public administration. 12. lack of legal punitive capacity perhaps, one of the gravest barriers to the workings of the nigerian ombudsman is its statutory inability to punish offenders after investigation. in nigeria, “the ombudsman only investigates a case and cannot carry out justice against offenders” (abasiekong & uzoma, 2019, p. 6). the provisions in section 7(3) and (4) of the pcc act are directly inimical to the effectiveness of the institution, in this regard. section 7(3) instructs the commission to, after carrying-out investigations and establishing that an individual has committed an offence, refer the case to an appropriate authority or simply prescribe that the individual should be arraigned before a court of law. similarly, section 7(4) of the act specifies that, where the ppc has confirmed that a person’s action warrants the administration of corrective measures to such person, the commission should report the case to an appropriate authority that would take the actions. the inability of the commission to enforce its decisions in terms of pushing erring officials is a big problem as it reduces the institution to more or less an advisory body than an authentic broker of administrative justice (osegbue & madubueze, 2017). this lapse is not only described as a deadly blow on the institution (igwenyi et al., 2020), it has also resulted in the commission being regarded as a dog that merely barks without biting (abasiekong & uzoma, 2019; igwenyi et al., 2020). this partly explains why many nigerians do not repose absolute faith and confidence in the nation’s ombudsman body, but rather hold it at a very low esteem. 13. insufficient funding regardless of the huge responsibilities saddled on the nigerian ombudsman, the federal government poorly funds the commission. this is another cogent explanation for the unsatisfactory performance of the institution in the country, and this problem has persisted over the years as successive chief commissioners of the commission have repeatedly complained of not having enough financial resources to fund their activities. a former chief commissioner of the public complaints commission, mr. funsho olukoga, for example, confirms that the federal government is not adequately funding the commission, and this makes it difficult for the agency to carrying-out its operations with utmost vigour and effectiveness. olukoga was even spurred by the situation to poignantly assert that the federal government of nigeria should either http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 13 increase funding to the ombudsman body or scrap it completely (ojoye & folarin, 2017). his immediate successor, mr. chille igbawua, also publicly declared that inadequate funding of the commission hinders investigation and resolution of complaints brought to it (olukomaiya, 2018). he notes that the institution’s funding has been handicapped over the years (suleiman, 2018). paucity of funds creates numerous logistics challenges in the commission’s effort to execute it duties (pcc, 2018, 2015). as mr. igbawua stated when he was still in office, “we are currently faced with difficulty in mobility, due to lack of vehicles, because our job requires officers to go round and carry out investigations” (olukomaiya, 2018, para. 4). a direct consequence of this is that the commission’s commissioners and staff are often force to use their private vehicles to execute investigations, and this has blighted smooth investigation exercises by the commission (pcc, 2018, 2017, 2015). in 2019, while advocating for better funding of the nigerian ombudsman, the parliamentary staff association of nigeria (pasan) disgruntledly divulged that the commission was only able to resolve as little as 41 percent of all the cases brought to it in four (4) years, precisely between 2015 and 2018 (asadu, 2019). as in preceding years, the commission only received from the executive arm of government the sum of n4.2 billion in 2018 out of the 7.4 billion budgetary allocation to it (pcc, 2018; asadu, 2019). in 2016, the federal government had approved only n2 billion for the pcc in the budget, and the salaries of pcc staff were equally slashed the same year, and this prompted protests by the aggrieved workers (ayodele, 2016). in 2015, the commission was given only n4 billion to run its activities (pcc, 2015). the current chief commissioner of the pcc, mr. abimbola ayo-yusuf, who was appointed in may 2021, has also reacted to the lingering problem of inadequate funding. after n8.6 billion was proposed for the commission in the 2022 budget (akpan, 2021), he summoned the courage and presented a new budgetary proposal of n23 billion to the national assembly to enable the commission discharge its duties effectively (aborisade, 2021). the continuing trend of gross underfunding of the country’s ombudsman institution renders it unable to perform up to the anticipation of nigerians, thereby worsening the plight of most of the citizens whose fates are left unguaranteed (asadu, 2019). what is undisputedly clear about government disposition in relation to the nigerian ombudsman, following from the poor funding of the commission, is that the federal government attaches little or no importance to the institution vis-à-vis the protection of the rights of the generality of the citizens. 14. inadequate publicity lack of adequate publicity and public awareness of the pcc is a major bane of the institution (pcc, 2018). the nigerian ombudsman has been in existence since 1975, but quite a large number of nigerians are unaware of the existence of the institution, not to talk of leveraging on it to pursue redress of improper administrative treatments done to them by government agencies. the situation is worse off in relation to nigerians living in the rural areas (pcc, 2015). mr. chille igbawu, the former chief commissioner of the commission validates this fact in an interview in 2020 as he states that the issue http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 14 of visibility is one of the greatest problems of the commission (suleiman, 2018). he explains, that the overall level of awareness among nigerians about the commission, which has existed for more than 40 years, is low compared with the level of publicity being enjoyed by other agencies that were established many years after it, adding that the fact that the commission receives less than 10 million petitions yearly in a country with almost 200 million people, is a proof to this effect (suleiman, 2018). the situation creates a special concern, in that the awareness of the institution even among the nigerian public servants is also very low because of the small amount of cases it resolves yearly (abasiekong & uzoma, 2019). the problem of limited popularity of the pcc is also tied to the issue of paucity of funds as reasonable amounts of financial resources are required in the modern era to proactively utilize both the traditional and social media to prosecute robust publicity campaigns to significantly raise the level of knowledge about the commission and its activities in the country (pcc, 2018, 2017, 2015). the persistence of this problem, therefore, is consolidated by the general incongruous disposition of the government of the day towards the country’s ombudsman. 15. illiteracy and ignorance literacy is an invaluable tool for the protection of human rights. expatiating this fact, olomojobi and osah (2019) hold that, literacy occupies a central place in the course of promoting and protecting human rights, in that it positions individuals to be well-informed about their rights and how to defend them. literacy, apart from being a human right in itself (eze, 2016; crompton & and dunkerly-bean, 2016), is also an instrument for the advancement of other rights (eze, 2016). similarly, crompton and dunkerly-bean (2016, p. 1) believe that, “literacy is a tool of personal empowerment through expression, as well as a means to social, cultural and human development”. as far back as 1968, the united nations educational, scientific and cultural organization (unesco), in a piece titled “illiteracy and human rights”, published on the occasion of the international year for human rights, recognized that “illiteracy is a major obstacle to the effective enjoyment of human rights” (unescos, 1968, p. 8). the organization further explains as follows: an illiterate is unware of the law which could protect him, for example, of the guarantees provided for in the universal declaration in matters relating to policing and justice, marriage, work, participation in and supervision of the management of public affairs. he is completely at the mercy of others…for those who cannot read, modern society constitutes a world as incomprehensible as was the world of nature to our earliest ancestor, cowering in their caves, and the helplessness is about the same in both cases (unesco, 1968, p. 7). hence, in the absence of good education, individuals would be bereft of the necessary knowledge about their inherent rights and duties in society (olomojobi & osah (2019). this implies that literacy is a key factor in the realization of human rights; the more informed or conscious one is about his or her rights the better he or she would leverage all available acceptable means to defend and/or realize them. apeh and onoja http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 15 (2018, p. 19) rightly observe that, “…though human rights are applicable to all citizens, many of them cannot assert their rights due to ignorance or illiteracy”. the foregoing statement, typifies the situation on nigeria where a sizable proportion of nigerian citizens are, unfortunately, illiterates. ultimately, there is high rate of illiteracy in nigeria, and this unprecedentedly affects the rights of the citizens (eze, 2016; dada, 2012; okogbule, 2005). in september 2021, nigeria’s ministry of education released statistical evidence of the gloomy situation of adult literacy in the country. the data reveals that as much as 38 percent of the estimated nigeria’s 200 million population, which makesup more than 76 million adult citizens of the country, are illiterates (onyedinefu, 2022). it, thus, becomes apparent why most nigerians do not demand for redress when their rights are infracted in the context of public administration. okogbule (2005, p. 106) believes that: “an educated man will easily adapt to the realities of the situation and have the intellectual capacity to insist on the enforcement of his rights, quite unlike the illiterate. education thus empowers him to maximize the opportunities and resources available in his environment”. in the same vein, where a population is largely literate, they are able to read and understand government policies and positively contribute to boosting good governance. they are also able to recognize their rights, and know are abused, as well as the relevant medium through which to fight to defend the rights (eze, 2016). in nigeria, the reverse is clearly the case. many nigerians are wallowing in irremediable ignorance despite the jomtiem declaration of education for all by the year 200 (dada, 2012). because of the lack of education and ignorance, a vast majority of the citizens of nigeria cannot access social justice and are estranged from the nation’s political and economic fabrics (okogbule (2005). consequently, with the estimated 76 million adult non-literate nigerians, coupled with many others who are ignorant of their rights under the pcc act, a substantial number of the citizens do not also know how and where to pursue administrative justice in the event of any infringements on their rights. however, the point must be made that it is the socio-economic situation of the nigerian society that has made education inaccessible to majority of the country’s average citizens, due to high costs. as dada (2012, p. 18) correctly states, “many nigerians live in want, abject poverty and penury…”. hence, education in nigeria has almost completely become an exclusive commodity for the rich and privileged citizens, who can afford the cost. in the whole, the high rate of illiteracy and ignorance among nigerians contribute to the ineffectiveness of the country’s ombudsman institution, as the citizens do not demand their rights when government’s organizations and their officials infringe upon them. 16. deficiency in the establishment act the public complaints commission act that establishes the ombudsman institution in nigeria embodies a major deficit that negatively affects the efficacy, public perception, and the realization of the goal of the commission. this specifically bothers on the provisions in section 8(1), (2) and (3) of the act regarding sanctions meted-out on violators of the stipulations of the law. the punishments are too light that they cannot deter people from offending the law (igwenyi et al., 2020, p. 35; suleiman, 2018). under the aforementioned subsections of section 8, the act specifies the payment of a fine of just http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 16 n500 or maximum of six months in prison as the punishments borne by anyone other than the commissioner, who discloses any complaints brought to the commission; refuses to provide the commission information when asked to do so or gives fallacious information in writing deliberately or carelessly; and purposely impedes, halts, physically attacks or prevents a commission or other officers and staff of the commission from executing their duties, or who prompts an individual to do the same, respectively. considering that the pcc act gives legal backing to the commission in pursuit of such important goal as the protection of nigerian citizens from administrative injustices, the fine of a meagre n500 and six months imprisonment are frivolous, and it makes caricature of the whole essence of the law and the institution. of course, “the punishment or sanction for any breach under the act is so ridiculous that one may choose to breach the law as many times as he desires” (igwenyi et al., 2020, p. 35). the former chief commission of the pcc, chille igbawau, describes the sanctions as “loose” and “irrelevant”, arguing that some persons can offend up to twenty (20) times and without apprehension pay the fine (suleiman, 2018). these sanctions themselves can be said to be categorically negating to the purpose of the ombudsman system in nigeria, because they can hardly frighten and demotivate persons from breaching the law. 17. solutions to the problems it is highly imperative that nigeria takes necessary steps to address the above problems blightening the effectiveness of the public complaints commission, to reposition the institution for improved performance in protecting the country’s citizens against administrative cruelty and corruption by government officials and organizations. in light of this, this present study suggests the following applicable measures: the public complaints commission act that sets-up the nigerian ombudsman should be amended to accord the institution independence like other critical institutions in the country, such as the nigerian independence national electoral commission (inec). by the amendment, the relevant sections empowering the national assembly and the presidency to interfere in the activities of the commission by virtue of being incharge of the appointment, removal and payment of salaries and retirement benefits of the commissioners and staff of the institution, should be repealed. this would put the commission off the “legal hooks” wielded against it by the legislature and executive arms of government and grant it the required measure of autonomy and freedom to engender the expected level of impact in stemming the tide of continuing administrative abuses in the present democratic dispensation in nigeria. through the amendment of its establishment act, the commission should be legally reinvigorated by imbuing it with powers to investigate, prosecute as well as punish offenders, instead of referring the cases to other authorities after investigation, as it is under the current act. this is highly important, as it would give the commission teeth to “bite” rather than just “barking”. wielding punitive powers would also change the perception of governmental officials, agencies and the citizenry about the commission, in that it would make the commission to command better institutional respect and prestige, whereby http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 17 mere mention of its name alone would send shivers down the spines of unscrupulous bureaucrats and organizations, just like the economic and financial crimes commission (efcc), a major nigerian anti-corruption agency. the federal government must, without hesitation, change its attitude towards the commission with respect to the issue of funding. given the essentiality and enormity of its responsibilities, adequate funding should consistently be allocated to the commission in annual budgets henceforth. also, the executive arm of the federal government must refrain from the illegitimate and debilitating act of releasing to the commission amounts below the approved budgetary allocation to it, as has been witnessed over the years even up till the present moment. making considerable amounts of financial resources available to the commission would certainly increase its efficiency and effectiveness in executing its statutory functions for the good of the citizens and the country as a whole. this step, if taken, would also portray the image of the government in a good light as it would be regarded by nigerians as a strong demonstration of government’s genuine commitment and political will to guarantee proper protection of the rights of the country’s citizens in the public administration, thereby strengthening government’s support base within the population. there is the need for a vibrant collaborative effort between the nigerian federal government, the pcc itself and the various anti-corruption and human rights-focused civil society organizations (csos) in nigeria to improve the visibility of the commission within the country’s population through purposeful vigorous nationwide enlightenment and sensitization campaigns about the existence and activities of the body. the intensive mass enlightenment campaigns should be implemented through various mediums, including physical seminars and symposia (for government workers), social and traditional media platforms to create adequate awareness of the existence and workings of the institution among the citizenry. the relevance and utility of the ombudsman institution in nigeria would definitely increase with an increased knowledge of its existence and proper understanding of its purpose by the masses of nigerian citizens. government at all levels in nigeria federal, state, and local government, should prioritize education and bring it to the front burner of their development policies. if not made completely free, education should be highly subsidized, sustainably, in all public schools across all levels primary, secondary and tertiary. this would provide opportunity to/for the poverty-stricken segment of the nigerian population, which constitute the majority, to access education on equal basis with their affluent counterpart citizens, thereby increasing the literacy level in the country and diminishing ignorance. also, a well-thought-out and organized national adult literacy programme should be designed and rolled-out by the nigerian federal government to offer all interested adult nigerians an opportunity to acquire basic education that would bequeath to them the essential skills of reading and writing. to encourage greater participation, this adult literacy programme should likewise be free or subsidized to the barest possible minimum. these measures would, to a very large extent, immensely empower nigerians by raising the level of knowledge and awareness about human rights among them, and thus reducing their vulnerability to abuses in all fronts, including in the sphere of public administration. http://10.17561/tahrj.v20.7327 protecting citizens against bureaucratic abuse and maladministration the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 18 through the proposed amendment to the pcc act, the provision under section 8 that deals with punishments apportioned to offenders under the current law should be revisited. the n500 and six months sanctions should be completely jettisoned, and be replaced with heavier and more deterring sanctions, if government officials and the citizens must take the act, the commission, and its mandate seriously. in the opinion of this paper, raising the fine to the minimum of one million n1, 000,000, and the prison term to a minimum of 36 months would, to a large extent, stimulate a high sense of caution among all and sundry and deter people from flagrantly contravening the provisions of the act, as the case is under the extant legislation. 18. conclusion the public complaints commission, nigeria’s ombudsman organization, is a federal institution established in 1975 by the federal military government of general yakubu gowon, and saddled with the duty to protect the citizens’ against administrative corruption and abuses. the establishment of the commission followed the promulgation of the public complaints commission decree no. 31 by the then military government to authorize the 1974 report of the public service review panel inaugurated by the regime in 1974 to evaluate and suggest ways of revolutionizing nigeria’s overall public service machinery for greater efficiency and effectiveness. as democracy was reintroduced in nigeria in 1999, the commission has continued to exist and function in by virtue of the public complaints commission act, cap p37 of laws of the federation of nigeria 2004. however, the nigerian ombudsman institution has not been as active as expected in discharging it duties in the prevailing democratic dispensation in the country. as the study reveals, certain issues account for the unimpressive performance of the ombudsman in nigeria. these include but not limited to its lack of independence from the legislature and executive arms of nigerian federal government; lack of legal powers to punish offenders; insufficiency of financial resources; inadequate awareness about the existence and activities of the institution; illiteracy and ignorance; and the inherent weaknesses of the act establishing the institution, especially with respect to the gravity of sanctions administered to offenders under the existing law. consequence upon this, the study suggests the following solutions to the problem: amendment of the commission’s establishment act; conferment of punitive powers to the institution; increased budgetary allocation to it; promoting the visibility of the agency and its activities, through aggressive mass enlightenment and sensitization campaigns; making education accessible to all nigerians and the institutionalization of a country-wide adult literacy programme; and imposition of heavier sanctions against offenders in the proposed amended act. in the conviction of the study, these are the most possible ways of strengthening the nigerian ombudsman to better discharge its statutory responsibilities in the interest of the citizens and the nation. acknowledgement special thanks to the god of chosen for his help. http://10.17561/tahrj.v20.7327 solomon i. ifejika the age of human rights journal, 20 (june 2023), e7287 issn: 2340-9592 doi: 10.17561/tahrj.v20.7287 19 references abasiekong, h.s., & 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(2015). annual report 2015. abuja: pcc. public complaints commission. (n.d.). history of the public complaint commission. https://hotels.ng/places/government-building/4664-public-complaints commission quinton, a. (1989). utilitarian ethics (2nd ed.). london: duckworth. rhodes, m.l. (1986). ethical dilemmas in social work practice. london: routledge and kegan paul. sander, g. (2013, june 12-14). ombudsman and local governments. international local government congress, venice, italy. https://www.researchgate.net/profile/ gary-sander/publication/281283594_ombudsman_and_local_governments/ links/55df315708ae79830bb703d8/ombudsman-and-local-governments. pdf?origin=publication_detail schumann, p.l. (2001). a moral principles framework for human resource management ethics. human resource management review, 11, 93-111. https://doi.org/10.1016/ s1053-4822(00)00042-5 singer, p. (2006, december 16). what should a billionaire give and what should you? new york times. suleiman, m. (2018, september 18). some provisions in pcc act challenging for operations. daily trust. https://www.pressreader.com/nigeria/daily-trust/20180918/ 281943133790824 tardi, c. (2021). utilitarianism. https://www.investopedia.com/terms/u/utilitarianism. asp tagowa, w. (1999): the civil service: the political class and the national question in nigeria. nigerian journal of political and administrative studies, 1(1), 19-25. tonwe, d.a. (2013). a review of the powers and jurisdictional remit of the ombudsman institution in botswana. mediterranean journal of social sciences, 4(13), 11-18. https://doi.org/10.5901/mjss.2013.v4n13p11 united nations educational, scientific and cultural organization. (1968). illiteracy and human rights. paris, france: unesco https://unesdoc.unesco.org/ark:/48223/pf0000155105 vance, n.r., & trani, b.v (2008). the ethical grounding to 21st century public leadership. international journal of organization theory and behavior, 11(3), 373-381 received: 2nd july 2022 accepted: 8th november 2022 http://10.17561/tahrj.v20.7327 https://hotels.ng/places/government-building/4664-public-complaints-commission https://hotels.ng/places/government-building/4664-public-complaints-commission https://www.researchgate.net/profile/gary-sander/publication/281283594_ombudsman_and_local_governments/links/55df315708ae79830bb703d8/ombudsman-and-local-governments.pdf?origin=publication_detail https://www.researchgate.net/profile/gary-sander/publication/281283594_ombudsman_and_local_governments/links/55df315708ae79830bb703d8/ombudsman-and-local-governments.pdf?origin=publication_detail https://www.researchgate.net/profile/gary-sander/publication/281283594_ombudsman_and_local_governments/links/55df315708ae79830bb703d8/ombudsman-and-local-governments.pdf?origin=publication_detail https://www.researchgate.net/profile/gary-sander/publication/281283594_ombudsman_and_local_governments/links/55df315708ae79830bb703d8/ombudsman-and-local-governments.pdf?origin=publication_detail https://doi.org/10.1016/s1053-4822(00)00042-5 https://doi.org/10.1016/s1053-4822(00)00042-5 https://www.pressreader.com/nigeria/daily-trust/20180918/281943133790824 https://www.pressreader.com/nigeria/daily-trust/20180918/281943133790824 https://www.investopedia.com/terms/u/utilitarianism.asp https://www.investopedia.com/terms/u/utilitarianism.asp https://doi.org/10.5901/mjss.2013.v4n13p11 https://unesdoc.unesco.org/ark:/48223/pf0000155105 rotecting citizens against bureaucratic abuse and maladministration: why is nigeria’s ombudsman inst abstract 1. introduction 2. literature review 3. methodology 4. theoretical framework 5. a brief evolutionary history of nigerian ombudsman 6. establishment legislation and composition of nigerian public complaints commission 7. appointment of commissioners of the commission 8. powers and duties of the commissioners 9. statutory limitations to exercise of powers by the commissioners 10. impediments to the effectiveness of nigerian public complaints commission 11. lack of independence 12. lack of legal punitive capacity 13. insufficient funding 14. inadequate publicity 15. illiteracy and ignorance 16. deficiency in the establishment act 17. solutions to the problems 18. conclusion acknowledgement references hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 199 hate speech and binary exclusions in europe: a digital and communicative approach* ana galdámez morales** abstract: hate speech targeting homosexuals, transgender people and other sexual orientations, as well as gender identities that deviate from the prevailing traditional binary system pervades social networks and digital communication channels. as a result, it is causing the exclusion of these groups, which often opt for invisibility in order to survive. freedom of expression is an essential and preferential right in western democratic systems. based on this premise, this paper delves into the european legal and jurisprudential framework on hate speech –especially, acts of transphobia, homophobia and violence based on sexual orientation and gender identity– as a limit to freedom of expression, when other fundamental values, such as dignity, are at stake. based on an analysis of the main normative instruments that have attempted to define the concept, as well as recent case law on hate speech, the aim of this article is to outline a consensus and to establish stable parameters to configure a legal response –valid in the european context– to cases of homophobic or transphobic speech. keywords: hate speech, freedom of speech, dignity, binarism, transphobia, homophobia, social networks, digital communication. summary: 1. preliminary considerations: tolerance, speech and discrimination in a rights framework. 2. hate on the basis of sexual orientation and gender identity: exploring the discourse on social networks. 2.1. homophobia, transphobia and lgbti-phobia: a brief semantic approach. 2.2. sexual orientation and identities: myths, ignorance and prejudice in the era of digital communication. 3. hate speech as a limit to free speech: the european paradigm. 3.1. what is hate speech? concept and weighting criteria. 3.2. hate speech on the basis of sexual orientation or gender identity: vulnerable groups. 4. hate speech against sexual minorities and the jurisprudence of the european court of human rights. 4.1. ecthr judgment of the 9th of february 2012, the case of vejdeland and others v. sweden. 4.2. ecthr judgment of the 14th of january 2020, the case of beizaras and levickas v. lithuania. 5. closing thoughts: challenges and opportunities in the digital era. 1. preliminary considerations: tolerance, speech and discrimination in a rights framework “dawn of the 28th of june 1969. the usual clients of the stonewall inn –a darkened bar of the new york mafia, located in the west of manhattan– rise up against the police raids, with a brickbat. each projectile, a piece of a memory. the stonewall inn was one of the few venues where queers were allowed in. lesbians, drag queens, trans youth and sex workers turned the premises into a night-time haven. the peace never lasted too long” (mauri, 2020). it was not an isolated event; raids and assaults for corrective purposes were frequent. *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. some ideas developed in this paper have been previously discussed in a recent publication (galdámez morales, 2022). **fpu pre-doctoral fellow. department of constitutional law, university of seville, spain (agaldamez@us.es). member of the sej-199 research group: estudios de jurisprudencia autonómica / studies on autonomic jurisprudence. hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 200 nowadays, as seen from a distance, it might seem that the episode –recounted with these words in a recent publication– is far behind us1; that the violence is anecdotal and that the actual reality is different. but the blows have only changed shape. today the battle of identities is discursive and fought on social networks. every tweet –every tag– reinforces a myth, reproduces a prejudice or consolidates a representation. hatred towards difference –that which does not fit into our normative society and the structures that order it2– is often trivialised in this new infinite communicative space that is the digital stage, paving the way to words that synthesise the discourse of hate, exclusion and fear; that which erects the walls of language and turns the world into a more “divided and dangerous” place. according to amnesty international, 2016 was a year marked by the “cynical use of rhetoric”3 aimed at specific groups of people. five years have since passed and the situation has not improved. new virtual communication channels are the perfect vehicle for transmitting messages that then expand on a global scale and perpetuate the endemic discrimination that is present in a society that is already steeped in –and divided by– classic structures that favour the consolidation of a predominant binary system of gender, a system that excludes those that intend to distance themselves from the established canons. frequently, and more often than we might think, this exclusion turns into aggression, through a discourse that goes viral, promoting rejection and violence on the basis, simply, of sexual orientation or gender identity. we all know –and i am aware of how obvious this is– that humans are social beings; we need to develop within a society and, in that regard, we do so through interactions between subjects; in short, communication is key. a society cannot sustain itself if it does not rest on the pillar of tolerance. john locke himself stated it in his letter4 to those who professed a different religion –as faith cannot be imposed– and we can now translate this to the realm of discursive aggressions that are made on the basis of sexual and gender identity. however, if we approach discrimination from the starting point of tolerance, as a cardinal element of all democratic societies, we still cannot overlook the fact that it is an absolute value (spigno, 2017: 182); “unlimited tolerance leads to the disappearance of tolerance itself and, as a result, the destruction of society” (popper, 2011), which is why its limits can be found in the extent to which it can be confronted; colliding with another pillar of a democratic system: the right to free speech. this is a freedom which encompasses many components –which, as such, must be guaranteed– and that is placed, in western systems, as a backbone of democracy5. it is of course necessary for the creation of the free public opinion, which in turn sustains 1. however, it is brought back to the present in the testimonies of those who lived it, such as donoso (2010) and feinberg (2003), amongst others. 2. it is not in vain that “the patriarchal masculine thought has placed ethics at the core of the value of the law and of justice” (vázquez garcía and sánchez fernández, 2017: 27). 3. “the situation of human rights in the world. annual report 2016/17”, amnesty international [online]: https:// www.amnesty.org/es/latest/news/2017/02/amnesty-international-annual-report-201617/ [accessed: 09/02/2021]. 4. “it is not the diversity of opinions, which cannot be avoided; but the refusal of toleration to those that are of different opinions, which might have been granted, that has produced all the bustles and wars, that have been in the world” (locke, 1689). 5. in the renowned handyside judgement, the ecthr contends that freedom of speech not only safeguards those messages or discourses that are inoffensive or well-received, but “also those that shock, worry or offend”. see judgement of the ecthr in the case of handyside v. united kingdom, december 7 1976, § 49. https://www.amnesty.org/es/latest/news/2017/02/amnesty-international-annual-report-201617 https://www.amnesty.org/es/latest/news/2017/02/amnesty-international-annual-report-201617 ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 201 the bedrocks of all processes of legitimation6. however, it is through the communication and transmission of messages –opinions, ideologies and value judgments– that together we build our imaginary; consolidating structures and social patterns, prejudices and stereotypes that often segregate, exclude and perpetuate the existing discrimination, which means that the dignity of a person, as a legal asset that should be protected, is shattered. in the face of these expressions of hatred, respect for diversity –as is stated in the unesco declaration on tolerance7– is also a guarantee of freedom on which to base the establishment of limits, which are necessary in order to harmonise the exercise of freedom of speech with other constitutionally protected legal assets, such as dignity. these legal goods are the ones used by professor jeremy waldron to justify that the regulation of hate speech is possible within the legitimate margins of freedom of speech (waldrom, 2012: 11 ff.). he represents, in the american context, the minority voice that counters the predominant classical liberal position. he denies the absolute and unlimited character of these freedoms, considering that such an affirmation would imply the impossibility of guaranteeing these other rights with which they could collide8. in the opposite corner are those who defend freedom of speech from the point of view of its practice in complete autonomy by those who express themselves, within a protected marketplace of ideas9 in which any kind of discourse is allowed, regardless of its content. this implies a duty of abstention from the state and, at the same time, of acceptance of the principle of self-regulation of the public space in which, they claim, the weight of the argumentation and the debate itself are the determining factors that will foster the inevitable withdrawal of these messages from the public space. in line with this school of thought we can highlight the rawlsian idea that the freedom of speech of those who are intolerant should only be restricted when it poses a threat to the security of institutions, or when it impedes institutions from operating effectively (rawls, 1996, 2002). for the american philosopher, these basic liberties can only be restricted by other basic liberties. thus, freedom of speech cannot be encroached upon by aggregative considerations, nor can it be restricted by other rights that are not basic liberties (rawls, 1979: 82-83). meanwhile, dworkin –another exponent of the discussion in the united states– considers that restrictions in speech are only admissible in extreme cases where they directly incite violence (dworkin, 1996: 218-225). 6. on the concept of public opinion, amongst others: judgement of the spanish constitutional court of stc 6/1981, of 16 marche; stc 159/1986, of 16 december. 7. declaration of principles on tolerance, proclaimed and signed in the 28th meeting of the unesco general conference, on november 16, 1995. 8. the foundations of the restrictions are based, in the eyes of the author, on two pillars: on the one hand, the recognition of a kind of public good of inclusion or trust that is a part of social diversity and that would be undermined by hate speech; and, on the other hand, the dignity of minorities that are targeted by this speech: “hate speech is speech, no doubt; but not all forms of speech or expression are licit, even in america, and we need to understand why there might be a particular problem with restricting speech of this kind” (waldrom, 2012: 14). 9. the marketplace of ideas, a concept first used by judge holmes, in his dissident vote in the judgement in the case of abrams v. united states (1919). hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 202 as we know, in the framework of the debate regarding the limits to freedom of speech against hate speech, “the standards are not clear, and even less so, peaceful” (valero heredia, 2017: 285). two theoretical models have traditionally been distinguished and which, in parallel, have shaped doctrinal constructions with differing legal consequences. indeed, the cultural and political tradition of liberalism10 presents the paradigm of tolerating intolerance; a narrative that exists alongside other models in democracy, built on the ideal on which contractual theories are based11. these theories are focused on the common good based on shared judgments: values and principles that are not attached to doctrine, which are the basis of the ethical premises that should delimit the structure of the political debate. from this second perspective –rooted in the european continent– some discourses should not even enter the marketplace of ideas; those that impinge on the pillars on which democracy is founded: human dignity and the development of personality. first coined by the supreme court of the united states, the term hate speech has been defined by the council of europe as “any form of expression that spreads, incites, promotes or justifies racial hatred, xenophobia, antisemitism and other forms of hatred based on intolerance”12. it is the type of language that uses discriminatory vocabulary to degrade, intimidate or incite violence against a distinct group, whether it be on the basis of race, sex, religion, or any other personal or social circumstance (weber, 2009: 3-5). this inevitably leads us to a debate about the convenience, or lack thereof, of imposing limits on its exercise. the same classical debate regains its meaning when, at the height of the society of information, digital channels and tools of mass broadcasting can multiply the visibility of certain extreme messages which –it was assumed– would have stay cornered as an outcome of the debate itself (boix palop, 2016: 61). this has not been the case. hate speech against homosexual and transexual individuals and groups, or those of different sexual and gender identities, has arisen and now travels through social networks, leading to the marginalisation of these groups who –all too often– choose to remain invisible in order to survive. in this regard, it becomes necessary to study and analyse –from the perspective of constitutional law, although necessarily complemented with some elements derived from the criminal approach– the different discourses which, in some cases, are found to be closely linked to acts of transphobia, homophobia and violence on the basis of sexual orientation and gender identity. furthermore, this should be done without neglecting the essential nature and central role played by freedom of speech in western democracies, despite the fact that it cannot serve as an excuse or a shield for those who promote hate and intolerance. the article deals with a complex subject matter: it focuses on discrimination based on specific grounds, but it does so on the basis of a necessarily broad conceptual apparatus – anti-discrimination law and communication rights–, in an equally complex communicative 10. a theoretical standpoint rooted in the postulates of john stuart mill. according to him, silencing the expression of an opinion is an evil that affects all of humanity, for two reasons: if it is a truthful opinion, it misses the opportunity to change error for truth; and, if it is not, it impedes the clearer perception of truth that would have been produced by its collision with said error (mill, 1984). 11. locke’s political theory is a good example of the liberal-rooted contractual tradition which defends the thesis that the limits in exercising power emanate from subjective rights that individuals possess by nature. in this regard, see locke (1991). 12. recommendation no. 97 of the committee of ministers of the council of europe, 30 october 1997. ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 203 context –the digital one– which develops in a multilevel legal framework that is also extensive and complicated. it is certainly a challenge. it is, without a doubt, a complex debate that deserves an in-depth inquiry, starting from the convergence of the different elements at stake: the actors that take part in the communication; the minorities that are neglected or discriminated against; the content of the messages –an objective element– and the criteria that allow us to difference between hate speech and hate crime; as well as the channel or vehicle of transmission –along with its ramifications– of said speech. what is hate speech? what discursive realities does the concept encompass? should we tolerate hate speech targeted at identities that stray from the predominant binary system of gender? these questions are addressed in this work, from a spanish and european normative and jurisprudential framework that frames the idea of hate speech as a possible limit to free speech. particular attention will be paid to homophobic and transphobic speech, as well as the difficulties of reaching a consensus and establishing stable parameters of response (valero heredia, 2017: 287-88). 2. hate on the basis of sexual orientation and gender identity: exploring the discourse on social networks this is a problematic concept; hatred “refers to subjective and emotional considerations that are difficult to legally categorise” (salazar benítez and giacomelli, 2016: 131), and this then complicates the task of systematising its presence on the communication scene. in order to define the object of this work –which is focussed on hate speech on the basis of sexual orientation or gender identity– we will, firstly, turn our attention to the different shapes that this speech can take. social networks represent the perfect channel for the construction and subsequent transmission of discursive narratives which, often, are centred around particular prejudices related to different sexual orientations or gender identities, and which are directly linked to a rejection of homosexuality and transsexuality (rodríguez lorenzo, 2020). in this regard, it becomes useful to begin by identifying the main phobias –the definition of which should also be clarified– that are configured on the basis of pre-existing myths and judgments, insomuch as they are found at the origin of the most typical acts of extreme speech. 2.1. homophobia, transphobia and lgbti-phobia: a brief semantic approach as in other similar debates, we can start from a “determinate construct of gender”, from a “determinate view of people as being a part of a socio-legal community” (rodríguez ruiz, 2012: 50). the psychologist george weinberg was the first to use the term homophobia13 at the start of the seventies (weinberg, 1972) to refer to “heterosexuals whose behaviour denotes a profound aversion to homosexuality; irrational fear, hatred and intolerance of those whose sexual orientation is other than heterosexual”14. insomuch as it 13. later coined by k.t. smith. 14. guide on lgbti hate crimes, ed. department of equality, social policies and reconciliation. government of andalucía. (guía de delitos de odio lgtbi, ed. consejería de igualdad, políticas sociales y conciliación. junta de andalucía.) hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 204 involves a discriminatory attitude targeted towards another person for being a homosexual, it also affects lesbian women. however, in these cases the term lesbophobia (viñuales, 2002) is preferred, as it is more specific and sensitive to multiple discriminations: for being a woman and for being lesbian. over time, the tendency has been to expand the definition of the concept. in the resolution on homophobia in europe15, this term is defined as an “irrational fear of and aversion to homosexuality and to lesbian, gay, bisexual and transgender (lgbt) people based on prejudice and similar to racism, xenophobia, anti-semitism and sexism”; a definition that is comparable to lgbti-phobia which includes, generally speaking, a rejection of all diverse identities: lesbian, gay, bisexual, transexual, intersex, etc. as for transphobia, considered to be an extension of homophobia16, it is defined as the rejection suffered by transexual people based on their transgression of the socially established system of sex/gender. some authors place its origin in oppositional sexism (serano, 2020), that is, the belief that the categories of masculine and feminine are rigid and mutually exclusive, with different attributes that prevent them from overlapping. this contrasts with traditional sexism, which is based on the belief of the superiority of what is masculine. these are some of the most common phobias that sexual minorities suffer from, and that can take on different forms17 of rejection and discrimination: persecution, physical or psychological violence, torture, unjustified restriction of their rights or verbal violence– of interest to us here–that is, discursive aggressions that reproduce myths and prejudices that are inherent to our collective imaginary and difficult to eradicate. 2.2. sexual orientation and identities: myths, ignorance and prejudice in the era of digital communication “homosexuality is not natural”; “it is an illness and, with adequate treatment, can be cured”; “to be transexual is comparable to cross-dressing”. the examples are many: false myths and preconceived notions that are accepted, whether it be because of ignorance –in some cases– or because they are based on a particular ideological postulate, in the framework of the conventional heteronormative paradigm. in any case, it is a hatred that has been around for a long time and that, historically, has been reinforced and justified by the law (spigno, 2017: 188 ff.) homosexuality was forbidden –and criminalised– until the mid-twentieth century, at which point the trend began to reverse18, leading to a diametrically opposed phase, characterised by its recognition, the alignment of rights and the legal protection of said 15. resolution of the european parliament on homophobia in europe, 18 january 2006. 16. the origin of the rejection can be found in the defiance of binary gender roles (norton, 1997). 17. resolution of the european parliament on homophobia in europe, 18 january 2006. consideration b. 18. in the western world. ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 205 sexual minorities19. before this point of inflection, the determining factors used to justify this repression were morality and the dogmas of religion and science. in the second half of the nineteenth century, medicine and scientific debate contributed to providing data and results –the outcome of research– to endorse the stigma (tardieu, 1857). thus, homosexuals were considered mentally ill, and were offered therapies such as sterilisation or castration (foucault, 2008). they displayed a deviant behaviour and a sign of weakness which endangered the preservation of the purity of the aryan race. these were the arguments used to justify the nazi strategy of persecuting and exterminating homosexuals in germany (pretzel, 2003). in europe, the gradual –and indeed slow– process of decriminalisation began timidly after the second world war, in parallel with the depathologisation of these behaviours. until its update in 1993, the who’s international statistical classification of diseases and related health problems (icd) still considered homosexuality as an illness, categorised as a behavioural disorder. this was despite the fact that, in 1973, it had been removed from the list of disorders in the “sexual deviations” section of the second edition of the american psychiatric association’s diagnostic and statistical manual of mental disorders (dsm-ii). as for transsexuality, this milestone is surprisingly recent: the world health organisation removed transsexuality from its list of mental disorders in the icd in july 2018, when it joined the section titled “conditions related to sexual health”. the journey to this development20, that some authors describe as “revolutionary”, has been –and continues to be– “slow, but steady” (spigno, 2017: 192). it is true that criminal repression has been widely overturned, with some exceptions. however, a sentiment of social rejection is still latent –due to centuries of stigmatisation– which leads to, in far too many occasions, episodes of violence and hate. when this hate is manifested through the use of words and rhetoric, taking the shape of speech targeted at specific discriminated or vulnerable groups, it becomes fitting to ask: to what extent does this discourse fit under the umbrella of freedom of speech, and should it therefore be protected? in which cases, and according to which criteria, should hate speech limit the exercise of this fundamental right? (teruel lozano, 2017). the first transgender miss spain, ángela ponce –also the first to compete for the title of miss universe– has recently been the target of ridicule and several offensive messages on social networks, despite being considered a reference point and despite the importance of her feat in promoting the visibility of the trans community (amo, 2018). images of her appearance in the competition have been used to create a meme referring to the size of her genitals. what is troubling and what should be the focus of our attention is the content of these messages; we could debate –based on the specific case at hand– whether we consider them instances of hate speech or mere jokes; but it is also important 19. however, despite notable progress, 70 countries in the world still criminalise homosexual acts. 20. rodríguez ruiz’s reflection on the subject is interesting. he considers the evolution of the family as a model of social organisation and which we can, by extension, translate to a new open-minded view with regards to the different sexual orientations and gender identities (rodríguez ruiz, 2011: 70-72). hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 206 that we pay attention to, albeit briefly, another element of the communication which, in recent times, has become a determining factor: the channel of communication; the medium through which the discriminatory, and at times hateful, content is disseminated. without seeking to be exhaustive –and aware of the number of doctrinal contributions that already exist on the effects of digital communication– allow me to simply note the defining characteristics of the new technological framework which, when addressing freedom of expression, oblige us to redefine the normative framework and the limits we apply to the exercise of this right (rodríguez-izquierdo serrano, 2015: 151). because, while hate speech is mainly a matter of content, with at its core the subjective element and the intent to discriminate against a particular community or social group, the legal treatment of this right cannot be the same when the medium changes; even more so when we use a channel that is tremendously invasive, and which places the recipient in an especially vulnerable position. in any communication there is discourse–content and attributions of meaning–but also other elements: actors –subjects that take part in the communication– and channels of transmission, from which certain consequences arise. internet, or communication in the digital era, entails a new model and paradigm of communication in which content acquires the capacity for mass diffusion (boix palop, 2016: 55-112). messages that are broadcast on social networks can potentially go viral from the moment they are published, thanks to the emergence of platforms that enable the virtual contact between people and the flow of information. content reaches even further and with a higher survival rate. messages that are spread remain permanently stored in databases and digital archives of servers, except when we act to counter this; and this becomes especially dangerous when dealing with hate speech or discriminatory content which, in certain cases, can incite violence. this content is openly available and universally accessible for all those who have access to technology; from anywhere in the world, anyone can send or receive information, which blurs the dividing line between the creators and addressees of these messages. the spectrum of possible subjects is now broader: until recently, the main characters were mainstream media –journalists and information professionals– on the one hand, and the recipients of said information –readers, listeners and viewers– on the other. this classic framework is complicated by the new digital platforms and broadcasting channels21 (balkin, 2018) –acting as disseminators of content– as well as ordinary citizens who can emit content through their profiles on social networks. with such a broad casuistry, and considering the need to analyse –and resolve– each specific case based on its particular circumstances, it becomes practically impossible to establish a general solution for the constitutional deliberation of cases of hate speech. however, what we could do is extract certain common notes and unfluctuating criteria, which would be susceptible to standardisation. these could then be used with the aim of 21. platforms such as for-profit tech companies with stakes in the matter, but which are nonetheless granted increasing responsibility as “intervening guarantors in the management of content” (serrano, 2019). in this regard, see also cotino hueso (2017). ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 207 configuring a legal response –which would be valid in the european context– to cases of homophobic or transphobic speech. in this regard, the following sections address the main normative instruments that have attempted to define the concept, as well as the recent jurisprudence in the field of hate speech on the basis of sexual orientation or gender identity. 3. hate speech as a limit to free speech: the european paradigm 3.1. what is hate speech? concept and weighting criteria we often use the phrase hate speech22 to refer to actions or messages which are reprehensible due to their discriminatory or offensive meaning, and whose nature can widely vary. these events can have little to do with one another, other than being clear displays of the projection of hate towards a particular group or community. indeed, the term has been used to label behaviours ranging from the burning of crosses in majority black neighbourhoods23, the distribution of pamphlets with homophobic content in a secondary school24, the denial of the jewish holocaust25 or of the extermination of the tutsis in rwanda (lair, 2003). therefore, delimiting a definition, although widely sought after, is by no means an easy task. the phrase was coined by the supreme court of the united states of america, from where it has been exported to the rest of the world. in the realm of the council of europe –the relevant context of this work– recommendation no. 97 of the committee of ministers of the council of europe, adopted on the 30th of october 1997, delineates the category of hate speech as: “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. it would appear that the key element is the manifestation of a feeling of intolerance and hatred, regardless of the form the message adopts, of its origin or of the motive of the discrimination (teruel lozano, 2017: 86) –racism, xenophobia, antisemitism, nationalism…–. this is the definition that the ecthr has endorsed and now applies 22. the academic debate around the delimitation of the concept is very intense. alcácer guirao (2020) provides a complete overview. 23. acts of intimidation carried out by members of the ku klux klan, a right-wing extremist group created in the united states in around 1866, which professes segregationist ideas (klanwatch project, 2011: 46). 24. ecthr, vejdeland and others v. sweden, 9 february 2012. we will examine the arguments of the court in this case in more detail hereafter. 25. holocaust negationism is that which, under a scientific guise, openly negates the existence of the nazi holocaust, or relativises it, reducing the number of victims of the extermination and minimising its effect. henry rousso –see le syndrome de vichy (1987)– was the first to use this term to distinguish it from historical revisionism a way to re-interpret history on the basis of the analysis of new sources (teruel lozano, 2015; vidal-naquet, 1994). hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 208 as the valid limit to the exercise of freedom of speech –bearing in mind that this right also safeguards those displays that “shock, worry or offend the state or any fraction of its population”26– through two clearly defined avenues of prosecution (valero heredia, 2017: 289). in some cases, the court resorts to the abuse of rights clause –article 17 of the echr27–, which deprives this type of speech of protection –without analysing its content and circumstances– when it contravenes the fundamental principles and values of the convention itself28. the aim is to protect democracy and the constitutional order that arose after the second world war (garcía roca, 2009). in other cases, the strasbourg court has opted for the method of weighting in light of article 10 of the echr29 –freedom of speech– the second section of which contains the reasons for limiting the exercise of this right, through the laws of a state; reasons among which homophobic/transphobic speech is not expressly found. this balancing broadly responds to the conjunction of three criteria: a) the proportionality of the interference with the right to free speech in relation to the legitimate aim pursued by its restriction; b) the legal provision of said interference; and c) the need to withstand it within a democratic society. despite the existence of this double criterion, the current tendency is to apply the second way: the balancing test. the main consequence, linked to the necessarily casuistic nature of weighting, is that the task of reaching stable parameters for the establishment of limits becoming more difficult (valero heredia, 2017: 288). constitutional weighing offers a solution applicable to the specific case, not a general answer to all conflicts. on the other hand, it is important to differentiate this category of hate speech from those messages that could be classified as hateful speech. these are speeches which, although they may be annoying or offensive, are not sufficiently serious to constitute a limit to the exercise of freedom of expression; they are, therefore, protected by this right. it is true that it cannot be limited or censored such content by means of repression, but it is possible –and even advisable– to explore other types of preventive measures aimed at reducing the general volume of hatred in the communicative context. this idea will be examined in further detail later. 26. ecthr, handyside v. the united kingdom, 7 december 1976, op cit., § 49. 27. echr, article 17. prohibition of abuse of rights. “nothing in this convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the convention”. 28. ecthr, dieudonné m’bala m’bala v. francia, 20 october 2015. 29. echr, article 10. “1. everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. this article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 209 3.2. hate speech on the basis of sexual orientation or gender identity: vulnerable groups over the past years, the arguments of the ecthr have contributed to the task of demarcating a concept whose meaning has progressively expanded. hence, the annex of the recommendation cm/rec(2010)5 of the committee of ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity provides that: “member states should take appropriate measures to combat all forms of expression, including in the media and on the internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. such “hate speech” should be prohibited and publicly disavowed whenever it occurs. all measures should respect the fundamental right to freedom of expression in accordance with article 10 of the convention and the case law of the court.” (let. b, para. 6). it is thus imposed upon states “to adopt measures to sanction any form of hate speech against sexual minorities” (spigno, 2017: 196). this approach was recently transposed to the definition found in the general policy recommendation no. 15 on combating hate speech, by the european commission against racism and intolerance, adopted on the 8th of december 2015, and which defines hate speech as: “the use of one or more particular forms of expression –namely, the advocacy, promotion or incitement of the denigration, hatred or vilification of a person or group of persons, as well any harassment, insult, negative stereotyping, stigmatization or threat of such person or persons and any justification of all these forms of expression– that is based on a non-exhaustive list of personal characteristics or status that includes “race”, colour, language, religion or belief, nationality or national or ethnic origin, as well as descent, age, disability, sex, gender, gender identity and sexual orientation”. this iteration does contain an explicit reference to “sex, gender, gender identity and sexual orientation” as possible causes for hate speech. the ecthr propounds another definition that is closely linked to another particularly relevant concept, which is built upon historical, institutional and social factors (presno linera, 2019: 285): vulnerability. to the ecthr, a vulnerable group is defined as: [any] “minority or group suffering from historical oppression or inequality, or which faces deeply rooted prejudice, hostility or discrimination, or that is vulnerable for any other reason, and which therefore, can require a greater protection against attacks perpetrated through insults, ridicule or slander”30. 30. ecthr, savva terentyev v. russia, 28 august 2018, § 76. see also ecthr, soulas and others v. france, 10 july 2008. hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 210 this need for greater protection is the main argument used to justify that, when the message –the hate speech– targets one of these groups or communities which the ecthr has identified as vulnerable, the tendency should be towards restricting the right to free speech, even though said message –an offence that could incite hate and discrimination– does not present a clear incitement to commit acts of violence. thus: “the incitement of hate does not necessarily require a call to such or such an act of violence, nor to another criminal act. the attacks that are committed against people that insult, ridicule or slander certain parts of the population and its specific groups, or the incitement to discrimination [...] are sufficient for the authorities to favour the fight against racist speech in the face of irresponsible freedom of speech and that impinges on dignity, including security, of these parts or groups of the population”31. the court of strasbourg differs, at least in this regard, from the way the supreme court of the united states usually approaches this kind of case32. the ecthr opts for the restriction of hate speech, in line with a systematic interpretation of the universal declaration of human rights. indeed, although this text recognises in its article 19 that everyone has the right to the freedom of speech and opinion, we know that this is not exempt from limitations; amongst others: the recognition of human dignity33; the guarantee of equal enjoyment of rights and liberties, with no distinction of race, colour or sex34; the protection against discrimination and against the incitement to discrimination35; as well as the existence of duties –the respect of the rights of others– that are inherent to the rights36. 31. amongst others, ecthr, féret v. belgium, 16 july 2009, and ecthr, vejdeland and others v. sweden, 9 february 2012. in this latter case –which will be further analysed in the following section– the discriminatory messages were targeted at the homosexual community. 32. in the judgment 562 u.s. 443 (2011), in which the case of snyder v. phelps is resolved, the umbrella of the first amendment protects the messages and the harangues against homosexuality that were issued during the funeral of a marine who had died in the iraq war. 33. article 1 of the udhr: “all human beings are born free and equal in dignity and rights. they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” 34. article 2 of the udhr: “everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”. 35. article 7 of the udhr: “all are equal before the law and are entitled without any discrimination to equal protection of the law. all are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination”. 36. article 29 of the udhr: “1. everyone has duties to the community in which alone the free and full development of his personality is possible. 2. in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. these rights and freedoms may in no case be exercised contrary to the purposes and principles of the united nations.” ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 211 before we move on, it is first useful to briefly clarify the difference between hate speech and hate crimes. although it is true that a part of the doctrine places hate speech within a concrete typology of these crimes, such as the incitement to hate (quesada alcalá, 2015: 2), other authors emphasise the importance of the distinction between them (rey martínez, 2015). they consider the legal good to be protected in both cases: the legal restriction, that is the ultima ratio, is only possible if we oppose a criminal legal good that could be damaged by the abusive exercise of free speech. the approach chosen in this paper –for the sake of brevity– focuses on the first concept, although necessarily complemented by some elements derived from the criminal law. hate crimes based on sexual orientation or gender identity will be tangentially mentioned, but not developed in depth. with this objective in mind, we will now turn to examining the cases–one of which is very recent–in which the ecthr has been able to specifically analyse hate speech against sexual minorities. 4. hate speech against sexual minorities and the jurisprudence of the european court of human rights the allegory of the free market of ideas was formulated in the renowned dissident vote of judge oliver wendell holmes in the case of abrams v. united states37, resolved by the supreme court of the united states in 1919. as we have seen, it is still recognised today as one of the arguments used to justify key importance of the right to free speech. this is the context in which hate speech arose, as a concept-reaction against a current that was conducive to the maelstrom of vicious messages that had neither limit nor control; the term was later imported across the ocean and took on a different –and much broader– meaning, including any incitement to discrimination, regardless of its basis in race, religion or sexual orientation38. there are certain messages that have no place within the european paradigm of freedom of speech. as has already been mentioned: when in conflict with dignity, the impossible balance tends to lean towards the latter, protecting the people or groups – especially those considered as vulnerable– as well as the pillars and principles which underpin democracy. this has been the case in two occasions in which the ecthr was 37. “persecution for the expression of opinions seems to me perfectly logical. if you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. […] but when men have realized that time has upset many fighting faiths, they may come to believe […] that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. […] while that experiment is part of our system i think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe […] only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants [250 u.s. 616, 631] making any exception to the sweeping command, ‘congress shall make no law abridging the freedom of speech’.” 38. in this regard, jeremy waldrom considers hate speech to be an attack on the dignity of the members of the communities being targeted, and who are deprived of their right to be individuals who are fit for life in society (waldrom, 2012: 16). hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 212 confronted with cases dealing with homophobic/transphobic speech. it did so in 2012, in the case of vejdeland and others v. sweden –which has already been commented upon and analysed by the doctrine– and in 2020, in the case of beizaras and levickas v. lithuania. in any case, it is worth reviewing the details of both judgments, with the aim of extracting the common arguments and criteria that allow us to attempt to identify a european response to hate speech on the basis of sexual orientation or gender identity. 4.1. ecthr judgment of the 9th of february 2012, the case of vejdeland and others v. sweden this is the first pronouncement of the ecthr on a case of hate speech on this basis. the applicants had been convicted –of inciting hate and violence against homosexuals, a criminal offence stated in article 8 of the swedish criminal code– for distributing homophobic pamphlets in a secondary school. these pamphlets39, of which there were about one hundred, were distributed in the lockers and pigeonholes of students, and they claimed –amongst other things– that “homosexuality is a deviant sexual inclination”: “one of the main causes of hiv transmission and other sexually transmitted diseases”, with a “destructive moral consequence on the essence of swedish society”. moreover, they accused a group of teachers and professors in sweden of being exceedingly tolerant of this type of behaviour, instead of abiding by their duty: warning students of its risks and consequences. to this, they added that “homosexual organisations are attempting to minimise the importance of paedophilia, and they are campaigning for their sexual deviance be legalised”. the ecthr considered that, although these statements do not imply a direct incitement to violence against homosexuals, they do constitute an offense that could incite hatred, which “does not necessarily involve the call to an act of violence, or other offences”40. in this regard, “the attacks that are committed against people by insulting, ridiculing or slandering specific groups of the population are sufficient for the authorities to favour the struggle against racist speech rather than a form of free speech that is exercised irresponsibly”41. this is an argument that was previously used in conflicts regarding xenophobia and racial hate42, and which was now translated to the present case to equate the legal treatment of sexual orientation to the other causes of extreme speech: “discrimination based on sexual orientation is equally as severe as that based on race, origin or colour”. the choice was made in this case to apply the balancing test, in light of article 10 of the echr, considering that the encroachment on the right to free speech of the applicants –as established by law– was proportional to the legitimate aim pursued (the protection of homosexuals), as well as necessary in a democratic society. several matters 39. developed by an organisation known as national youth. 40. ecthr, vejdeland and others v. sweden, 9 february 2012, op cit. § 54. 41. ibid., § 55. 42. amongst others, féret v. belgium, 16 july 2009. ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 213 previously analysed by the swedish supreme court were taken into account, such as: a) the fact that the distribution of pamphlets took place in a school which they did not have the authorisation to access; b) the distribution in students’ lockers implies that they received the information without having the chance to oppose or refuse it; and c) the potential recipients were minors, and therefore “more prone to be influenced” (presno linera, 2019: 291). therefore, in this case, the court moves away from the criterion of the direct incitement to violence, in dealing with discriminatory speech targeted at a vulnerable group or minority. however, despite this move, the judgment was the object of numerous critiques and was deemed a “lost opportunity” (salazar benítez and giacomelli, 2016; spigno, 2017). it was thus stated by judges yudkivska and villiger in their concurrent vote, as they lamented that the court of strasbourg had not taken advantage of this case to “strengthen a response to hate speech against homosexuals” (presno linera, 2019: 291). 4.2. ecthr judgment of the 14th of january 2020, the case of beizaras and levickas v. lithuania this judgment is especially relevant not only for how recent it is, but also because it marks the first time the ecthr has faced a case of homophobic hate speech on the internet. it occurred in 2014 after a photograph capturing a kiss shared by a gay couple unleashed a barrage of comments. the couple had posted the image on facebook –which is accessible to the general public– with the aim of announcing their relationship. in response, they received over 800 messages, many of them containing markedly discriminatory content: “i’m going to throw up –they should be castrated or burnt; cure yourselves, jackasses– just saying”; “if you were born perverted and have this disorder, go and hide in basements and do whatever you like there, faggots. but you will not ruin our beautiful society, which was brought up by my mother and my father, where men kiss women and don’t prick their skewers together. i genuinely hope that while you are walking down the street, one of you will get your head smashed in and your brain shaken up”; “these faggots have fucked up my lunch; if i was allowed to, i would shoot every single one of them”; “scum!!!!!! into the gas chamber with the pair of them”; “fucking faggots burn in hell, garbage”; “into the bonfire with those faggots…”; “fags! into the bonfire with those bitches!”43. these are some of the comments that were not duly investigated by the lithuanian public authorities –prosecutors and national courts– who refused to open a preliminary investigation. the applicants asserted that the reason for this refusal was, precisely, their sexual orientation. indeed, as the regional court of kaipèda noted, their public exhibition “was an attempt to deliberately irritate or scandalise those with differing opinions, or to encourage the publication of negative comments”44. the actions of the courts were justified, in writing, by the lithuanian government, despite article 170 of the criminal 43. ecthr, beizaras and levickas v. lithuania, 14 january 2020, § 10. 44. ibid., § 23. hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 214 code, which classifies as an offence any “declaration targeting a broad and unlimited group of people, which has the aim of inciting them against another group of people belonging to a community characterised by their sexual orientation”45. the government warranted that with their “eccentric behaviour”, “the intention of the couple had not been to announce the start of their relationship [...], but to unleash a public debate on the rights of the lgbt community in lithuania”46. when presented with these facts, the ecthr convicted the state of lithuania for failing to fulfil their obligation to investigate cases of possible discrimination –which extends to matters relating to sexual orientation and gender identity47– under article 13 of the convention. it considers that “one of the motives for refusing to initiate the previous proceedings was the courts’ disapproval of the applicants’ public display of sexual orientation”48, despite “the obligations of the state, inherent to the effective respect of privacy, as derived from article 8 of the echr”49. regarding the potential virality of the content, the court asserts that, “in light of its accessibility and its capacity to store and communicate enormous quantities of information, the internet plays an important role in improving the public’s access” to content that has important repercussions50. as a result, “the publication of a single hate comment, not to mention the statements that people should be “murdered”, on the facebook page of the first applicant was enough to be treated with the seriousness it deserved”51. thus, the court concludes: “that the hateful comments including undisguised calls for violence by private individuals directed against the applicants and the homosexual community in general were instigated by a bigoted attitude towards that community,” and, secondly: “that the very same discriminatory state of mind was at the core of the failure on the part of the relevant public authorities to discharge their positive obligation to investigate in an effective manner whether those comments regarding the applicants’ sexual orientation constituted incitement to hatred and violence, which confirmed that by downgrading the danger of such comments the authorities at least tolerated such comments”52. 45. ibid., § 98. 46. ibid., § 92. 47. see also ecthr, salguiero da silva mouta v. portugal, 21 december 1999, § 28; and ecthr, p.v. v. spain, 30 november 2010, § 30. 48. ecthr, beizaras and levickas v. lithuania, 14 january 2020, op. cit. § 121. 49. ibid., § 110. 50. ecthr, magyar v. hungary, 2 february 2016, § 56. 51. ecthr, beizaras and levickas v. lithuania, 14 january 2020, op. cit. § 127. 52. ibid., § 129. ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 215 therefore, the court considers it proven that the applicants suffered from discrimination –in the form of hate comments and the refusal of an effective national avenue for legal recourse– based on their sexual orientation. 5. closing thoughts: challenges and opportunities in the digital era with a first semantic observation we realise that the term “hate speech” encloses a dichotomy; it brings together two antagonistic concepts. on the one hand is the idea of speech –the process of building discourse necessarily implies a rational and logical process of attributing meaning– whose nature lies essentially in reason. this is juxtaposed to the irrationality that underpins all feelings of hate; something we cannot logically explain and which, in principle, is at odds with the idea of speech. hate has its roots in the depths of the subject, with no need for any kind of reason or veneer to justify it. it appears that, through a structure of opposites, the term attempts to convey that hate can be reasonable; that hate could possibly be made attractive by the use of verbal strategies by the person who is being intolerant. however, in the words of the philosopher adela cortina, “those who use hate speech are convinced that, from the start, there is a relationship of structural inequality with regards to the group that supports the discourse, and we cannot state that we live in an authentic democracy if the relationship between individuals is one of structural inequality” (cortina orts, 2017: 10). we can begin by acknowledging that “opinions are not harmless” (alcácer guirao, 2012: 28); they soak through the suit worn by society, no matter how waterproof its coat. debate is a formidable tool to develop democratic societies: it is only through dissent and dialectical confrontation that we can achieve its essential function of shaping public opinion. as the ecthr has often reiterated, “freedom of expression [is] applicable not only to “information” or “ideas” that [are] favourably received [...], but also to those that offended, shocked or disturbed”53. therefore, “it is precisely when ideas are confronted with one another, when they clash or reject the established order, that free speech is most valuable”54. in this regard, the more speech resembles political –or ideological– deliberation, strictly speaking, the broader the space should be in order to allow its effective transmission. it is undeniable, if we assume this premise, that in the context of digital communication there is a higher risk that certain messages could provoke an inevitable social destabilisation, especially when their content affects those we consider to be vulnerable (rodríguez-izquierdo serrano, 2015: 156). as electronic platforms have become more widespread, they have also become the driving force of interpersonal communication and of the inclusion of all citizens –at least those who have access to new technologies– in the public debate. this entails an obvious extension of communicative spaces, which grow increasingly broader while the domains 53. ecthr, beizaras and levickas v. lithuania, 14 january 2020, op cit., § 91. 54. ecthr, otegi mondragón v. spain, 15 march 2011. hate speech and binary exclusions in europe: a digital and communicative approach the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 216 of privacy dwindle55. thus, for the past few years, the use of mobile phones has brought unsuspected possibilities into reach: we can send and receive information from almost anywhere in the world; ideas and opinions can fly at great speed to reach any person at the mere click of a button. but this capacity is not risk-free; indeed, certain comments that used to remain within a more limited space now have a much further reach. this situation reveals the disjunction between the free exchange of ideas, regardless of their content –in which the critical conscience of citizens is the tool used to neutralise xenophobic and discriminatory messages– and the alternative of restriction, which considers the social impregnation provoked by certain racist, xenophobic or discriminatory messages, and how they can silence the voices defending those minorities, whose boundaries tend to blur. this is the position defended by owen fiss, who justifies limiting free speech with the aim of protecting free speech itself, because “sometimes we need to lower the voices of some in order to hear the voices of others”56. when we post a comment on social networks, we are aware of the magnitude of its reach –in a dimension that is three-fold: physical, temporal and subjective– as well as its effect. messages reach a higher number of people, further distances, for longer periods of time and with a greater impact57. in the caselaw analysed, the court asserts that, “in light of its accessibility and its capacity to store and communicate enormous quantities of information, the internet plays an important role in improving the public’s access” to content that has important repercussions58. in this regard, the viral potential of every tweet justifies that –when facing a case of hate speech against sexual minorities, or against any vulnerable group in general– we resort to applying the analogy of the same legal treatment that the spanish constitutional court applies in the context of print media, because of its greater dissemination and capacity for impact, as “its readers are far more numerous and impressionable than those of the news itself”. this is also the case in the universe of twitter: the home of short and high-impact messages, that spread at high speed and that, often, are accompanied by images and audio-visual content. however, this is something that can also be used in a positive way, as an opportunity to define the blurred silhouette of those who need visibility. it is not in vain that “the internet is not only an effective medium to preserve and promote democratic principles. it is, moreover, a powerful tool that is capable of undermining them”. in cass sunstein’s deliberations on the matter we can see the two sides of the coin: the web as a vehicle for transmitting content that perpetuates stereotypes and that discriminates and, simultaneously, as an instrument capable of the exact opposite: promoting tolerance and those superior values that deserve to be protected, such as dignity. 55. among the consequences of this transformation: the enrichment of pluralism, the increase in possibilities of receiving information and being an active member of a political community (boix palop, 2016: 55-57). 56. on the silencing effect of hate speech, see fiss (1996: 28-30). 57. these ideas have been developed in a recently published work (galdámez morales, 2021: 82-85). 58. ecthr, magyar v. hungary, 2 february 2016, § 56. ana galdámez morales the age of human rights journal, 18 (june 2022) pp. 199-220 issn: 2340-9592 doi: 10.17561/tahrj.v18.7024 217 the notion of dignity is traditionally linked to values or rights such as equal treatment, non-discrimination or social recognition. it acts in the face of conflict that arises when freedom of speech is opposed –in the context of hate speech– as an argument in favour of its legitimate restriction. as we have seen, it was asserted as such by the ecthr in its jurisprudence and, in the same vein, by the spanish constitutional court: [...] “neither the exercise of ideological freedom nor of freedom of speech can safeguard displays or expressions intended to disparage or generate feelings of hostility against particular ethnic, foreign or immigrant, religious or social groups, for in a state such as the spanish sate, which is social, democratic and governed by the rule of law, the members of such communities have the right to coexist peacefully and be fully respected by other members of the social community”59. it is a complicated balance to strike. the umbrella of freedom of speech cannot be a haven for messages of hate that promote intolerance and the rejection of people who are homosexual, transexual or have a different sex orientation or gender identity. the protection of sexual minorities, vulnerable groups and sectors that are excluded or made invisible by society, justifies the enforcement of limits to the exercise of this right when it translates into violence simply on the basis of sexual orientation or gender identity. because, even if the statements do not imply a direct incitement to violence against homosexuals, they "may constitute an offense that may incite hatred". this argument serves the ecthr to equate the treatment it has already applied to conflicts related to xenophobia and racial hatred to the legal treatment of sexual orientation as a cause of extreme speech60. yet, hate speech only acts as a limit in cases where there is an offense is committed or there is a legal good to protect, “without the pure defence of an idea being considered as such” (teruel lozano, 2018: 13). also, the necessarily casuistic nature of constitutional balancing difficults to reach general parameters for the establishment of limits. another avenue of response needs to be explored: preventive measures such as education, the promotion of an inclusive discourse –from public and private institutions–, proactive and pedagogical policies to combat hate speech at its source. the concrete assaults must be –according to the adequate weighting– expelled from the debate, while avoiding the restrictive inertia that could arise as a response to these types of speech – which would be equally as concerning (teruel lozano, 2018: 15)– and that would make us forget the importance of 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(1972). society and the healthy homosexual. new york: st. martin’s press. received: november, 30th 2021 accepted: february, 23rd 2022 https://doi.org/10.18042/cepc/redc114.01 https://doi.org/10.18042/cepc/redc.110.11 https://doi.org/10.18042/cepc/redc.110.11 https://doi.org/10.4159/harvard.9780674065086 hate speech and binary exclusions in europe: a digital and communicative approach* abstract 1. preliminary considerations: tolerance, speech and discrimination in a rights framework 2. hate on the basis of sexual orientation and gender identity: exploring the discourse on social 2.1. homophobia, transphobia and lgbti-phobia: a brief semantic approach 2.2. sexual orientation and identities: myths, ignorance and prejudice in the era of digital co 3. hate speech as a limit to free speech: the european paradigm 3.1. what is hate speech? concept and weighting criteria 3.2. hate speech on the basis of sexual orientation or gender identity: vulnerable groups 4. hate speech against sexual minorities and the jurisprudence of the european court of human rig 4.1. ecthr judgment of the 9th of february 2012, the case of vejdeland and others v. sweden 4.2. ecthr judgment of the 14th of january 2020, the case of beizaras and levickas v. lithuania 5. closing thoughts: challenges and opportunities in the digital era references online courts and, private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 1 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? sabreen ahmed1 abstract: as the technological revolution takes over the world, the justice system is also susceptible to change. the online court of england and wales (‘oc’) is an example of such a step taken in that direction. however, some argue that this has vast implications on access to justice for the ‘digitally excluded’ or the litigant-in-persons (lip). while this argument is warranted, it fails to address the two essential implications of online courts: first, the potential of online courts to enhance access to justice by legally empowering lips along with enhancing access to court for them (private aspect of open justice). further, such access to court is enhanced for the general public and the media (public aspect of open justice) alike. secondly, the threat of uncontrolled access to online proceedings facilitated by modern avenues like ‘live-streaming’ and ‘live-tweeting’, turning justice into a disruptive one. this article argues that oc is better placed at improving access to justice issues than physical courts, by enhancing both the private and public aspects of open justice. however, enhancing the public aspect also poses major threats to the right to privacy of individuals. further, this article argues that a more nuanced approach towards a future technology-focused justice system needs to balance the public aspect of the open justice principle with the right to privacy. hence, this article suggests that regulative and accountability measures like ‘penalty point systems’ should be placed right from the outset to prevent any leakage of sensitive data prompted by uncontrolled access to online courts. keywords: online court of england and wales, open justice, right to privacy, uncontrolled access, digital exclusion. introduction developing on the digitisation reforms (england and wales) in 2015, the civil courts structure review (ccsr) proposed online civil court (‘oc’) aimed at not only reducing the cost of justice but also improving access to justice by making it litigant-in persons (lips) -centred (sorabji, 2017). it was intended to adopt a three-stage process: first, ‘triage’ or the automated process providing guidance and online assessment of the disputes; second, a mix of conciliation and case management by case officers and; third, adjudication. the final stage of adjudication consists of the determination of cases by judges either on documents, on the telephone, by video or at the face-to-face hearing, but ‘no default assumption that there must be a traditional trial’ (briggs j, 2016). according to susskind, oc can be understood as a three-tier structure which is based on three components of access to justice namely: dispute resolution (tier 3), dispute containment (tier 2) and dispute avoidance (tier 1)(susskind, 2020). he categorises tier 1 and tier 2 as extended courts, and tier 3 as ‘online judging’. here tier 1 or the ‘triage’ stage offers 1 jindal global law school, o.p jindal global university, sonepat, india, sabreen.ahmed@jgu.edu.in http://10.17561/tahrj.v20.7516 mailto:sabreen.ahmed@jgu.edu.in online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 2 some sort of guidance and online assessment of the dispute so that disputes can be avoided altogether. this is particularly relevant for the self-represented litigants as they often enter the court unequipped. further, tier 2 or the mix of conciliation or case management stage will help the self-represented litigants to assess whether they have justiciable grievances and when they learn that there is little prospect of success, they might decide to not proceed with escalating the dispute. alternatively, if they decide to proceed, the case officers will facilitate them to settle the dispute without involving judges. however, with the option of involving judicial attention if case officers deem fit for resolution of a given dispute. this is not an alternative to the court system but an integral part of the system itself and offers an ‘extended court’ service by offering various forms of non-judicial settlement within the same system (susskind,2020). more precisely, ‘extended courts’ aim to extend the court services and reach of courts for those unfamiliar with the law. lastly, if disputes are not disposed of at tier 1 or tier 2, then parties will progress to the third stage of ‘online judging’. online judging involves judges and focuses on the determination of disputes based on written material, in an asynchronous proceeding2 with no compulsion (although an option) of a public hearing. hence, he argues that in comparison to other methods of dispute resolution, oc is best placed to enhance each of the three elements of access to justice (susskind, 2020, p118). in this context, the ccsr report concludes that issues of open justice related to an oc are more technical than substantive, which can be overcome with a robust it system, subject to sufficient funding by the hmcts (briggs j, 2016). susskind categorises open justice as one of the principles of access to justice and argues that online courts (as a hybrid of extended courts and online judging)3 stand to enhance the principle of open justice through (a)the empowerment of ‘non-lawyers’ through guidance and (b) enhancing ‘information transparency’. he argues that ‘information transparency’ does not always translate into the ‘gathering of parties or the public in a physical court’ and can mean that courtroom proceedings are under public scrutiny irrespective of their physical presence before the judge (susskind, 2020). in the context of oc, european convention on human rights (echr) is a relevant instrument (scott v. scott, 1913) 4as the open justice principle embedded within art 6 of the human rights act (1998) has been ultimately taken from the echr and forms part of the ‘convention rights’. moreover, reference to echr will allow a broader exploration of the open justice principle under art 6 (echr), which consists of two aspects namely private and public. both aspects cover similar intricacies of open justice as described by susskind in the form of: (a) right of private litigants to have civil proceedings in an open court and (b) publicity principle which provides access and reporting rights to the media 2 where parties are not all present at the same time like in an adversarial setting. see, ayelet sela, ‘streamlining justice: how online courts can resolve the challenges of pro se litigation’ (2016) pg 30 3 online judging where there is a determination of dispute solely on the basis of a written document and not synchronous which requires all parties to be present at the same time. while extended court allows synchronous proceedings and is a virtual manifestation of an adversarial trial. 4 see, n.a radin ‘the right to a public trial’[1932] temple l.q 381 http://10.17561/tahrj.v20.7516 sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 3 and the public. from a wider perspective, access to court remains an essential element common to both aspects of open justice (ryder, 2018). hazel genn (2017) argues that online courts violate the right to access the court for the lips due to ‘digital exclusion’. further, she argues that online court processes lack transparency in procedure and prevent media participation. similarly, sharon rodrick (2017) points out that the use of technology in the justice system poses threat to open justice as it takes place on an unobserved platform devoid of public scrutiny. however, such a view fails to acknowledge the issue of uncontrolled access prompted by such online courts and its implications on the right to privacy. in this context, i argue that, on one hand, oc enhance open justice and can potentially overcome digital exclusion. on the other hand, it poses risks of violation of the right to privacy in a technology-focused justice system of the future. first, i argue that the oc enhances open justice in both its private and public aspects which ultimately enhances access to justice. the private aspect requires better access to court and empowerment of lips which is enhanced by improving their participative experience as per the ‘ladder of participation model’ (mckeever,2013). the public aspect is enhanced by the enhancement of ‘information transparency’ prompted by modern avenues that allow direct/easy access to court proceedings/court materials for the press and the members of the public. second, i argue that hmcts and the government can collectively and gradually overcome the issue of digital exclusion through a multi-channel approach (including faceto-face help, design and technology) (gtf and hmct, 2017-22). third, i argue that modern avenues like live tweeting and live streaming pose privacy threats in the form of personal data/information leaks due to enhanced uncontrolled access to the public during online proceedings (puddister and small, 2019). finally, i conclude, that a more nuanced approach is to open the doors of the court, but not too much, by striking a balance between the public aspect of the open justice principle and the right to privacy through regulative and accountability measures while allowing access to court proceedings for the general public. 1. access to justice and open justice principle susskind has argued that 'access to justice’ is just not limited to access to a quicker, cheaper and less combative mechanism for resolving disputes. according to him, access to justice also means deep empowerment of all members of society including non-lawyers or the general public (susskind, 2020). hence, he argues that access to justice needs to embrace four different elements: namely, dispute resolution, dispute containment, dispute avoidance and legal health promotion (susskind, 2008). he explains that while dispute resolution is the central service of any court, there is also a need for better methods of dispute containment whereby the justice system needs to avoid any escalation. hence, efforts need to be made to encourage resolution informally and pragmatically. further, he takes inspiration from medicine to make a case for dispute avoidance, whereby ‘prevention is better than cure’. hence, he suggests that even non-lawyers be equipped with http://10.17561/tahrj.v20.7516 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 4 legal guidance and training to avoid legal obstacles, just like lawyers. lastly, he suggests that the law can be used as a tool for promoting general well-being. he argues that legal health promotion is aimed at helping people in a timely way, knowing about and acting upon the benefits, improvements and advantages conferred by law. further, from a legal lens, he describes justice as a combination of the following principles: namely, substantive justice, procedural justice, open justice, distributive justice, proportionate justice, enforceable justice and sustainable justice. hence, according to him each of these principles need to contain the four elements of access to justice as discussed. this article does not expand on each of these principles but only aims to analyse how access to justice is enhanced through the open justice principle in the case of the oc of england and wales. susskind categorises open justice as one of the principles of access to justice and argues that online courts stand to enhance the principle of open justice through the empowerment of ‘non-lawyers’ and enhancing ‘information transparency’. he explains that open justice as a part of the access to justice principle is understood in terms of the legal enablement of lips to navigate the system on their own through legal guidance and not mere access to physical court buildings (susskind, 2020). further, according to him, information transparency means ‘visibility over the court processes, procedures and operations along with public access to advance notice of hearings, to some kind of record of proceedings and to information about the parties and procedure involved, the nature of the dispute and to some detail about the case management decisions, the substance of the determination itself and an explanation of the finding’(susskind, 2020). in the context of oc, echr is a relevant instrument for tracking the wider legal and constitutional essence of the open justice principle.5 significantly, as the human rights act is based on the echr itself in the form of convention rights. the open justice principle embedded within art 6 of the european convention of human rights consists of two aspects namely private and public. both aspects cover similar intricacies of open justice as described by susskind to understand the comprehensive underpinning of this principle, additionally, art 6 of the echr, also describes the public aspect of open justice as a publicity principle (consisting of open court, access to judgments and the right to publicise as part of art 10, echr). from a wider perspective, this means that the open justice principle consists of three interrelated principles namely: equal access to courts, open court or public hearing for scrutiny (by public and media) and finally, accessibility to written public judgments (ryder, 2018). what remains at the heart of open justice is its relationship with equal access to courts (ryder, 2018). hence, the open justice principle entails access to court as one of the essential elements common to both the private aspect 5 as echr is a regional human rights instrument for the whole of europe and the uk though no longer a part of eu is still committed to echr to a certain extent following the political declaration of 2019 and the eu-uk trade agreement read together. see, the eu-uk trade and cooperation agreement (30 decemeber, 2020) <https://commission.europa.eu/strategy-and-policy/relations-non-eu-countries/ relations-united-kingdom/eu-uk-trade-and-cooperation-agreement_en>; also see, political declaration setting out the framework for the future relationship between the european union and united kingdom, official journal of the european union (2019/c 3841/02) <https://eur-lex.europa.eu/legal-content/en/ txt/pdf/?uri=celex:12019w/dcl(01)&from=pt> http://10.17561/tahrj.v20.7516 https://commission.europa.eu/strategy-and-policy/relations-non-eu-countries/relations-united-kingdom/eu-uk-trade-and-cooperation-agreement_en https://commission.europa.eu/strategy-and-policy/relations-non-eu-countries/relations-united-kingdom/eu-uk-trade-and-cooperation-agreement_en https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:12019w/dcl(01)&from=pt https://eur-lex.europa.eu/legal-content/en/txt/pdf/?uri=celex:12019w/dcl(01)&from=pt sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 5 and public aspects of the open justice principle. therefore, the private aspect is about enhancing access to court for lips along with their empowerment as a non-lawyer and, the public aspect is about enhancing access to the public and media for utmost transparency of court proceedings. this section discusses the principle of open justice in this context, by analysing how the oc is better placed at enhancing both aspects of open justice in comparison to the physical courts. a. online court and the private aspect of open justice: access to court and legal empowerment for lips as discussed before, susskind has listed four essentials for ensuring access to justice which is more than dispute resolution and is aimed at legally empowering all sections of society (susskind, 2020). as the open justice principle is one of the principles of access to justice, it needs to prompt legal empowerment for the lips along with ensuring access to the court. this aspect of open justice is embedded under art 6 of echr as private open justice, which guarantees the private rights of litigants to insist that civil proceedings be held in an open court (zuckerman, 2021). it includes the rights of the parties to participate, observe and access the outcome of the proceedings (mckeever, 2022). one of the most important aspects of access to court is the effective participation of the litigants-in-persons (lips) in the proceedings (mckeever, 2022). effective participation in this context means that lips are enabled to make a case for themselves without any help from a lawyer, which is easily understandable by the court to make a decision., however, due to a ‘lawyerish’ culture and the current structure of the civil court system of england and wales, they are hit with complex civil court procedures and laws that they are expected to navigate themselves (barton v.wright hassall llp, 2018) . this is mainly prompted by a lack of guidance for the lips in an adversarial setting. hence, lips have difficulty understanding the norms of the court which blocks their effective participation in such a setting (mckeever, 2013). moreover, their lack of cooperation and [in]ability to assist the courts leads to further delays (mckeever, 2013). though there is no precise definition of effective participation, however, in the context of procedure, it finds its basis in procedural justice (tyler, 2000; solum, 2004). while the concept of procedural justice is too broad to be contained here, mckeever’s model of the ‘ladder of participation’ which draws from the literature on procedural justice is of relevance (mckeever et al., 2022). through this model, mckeever argues that legal participation can have different forms and covers a range of experiences. depending on the number of participation barriers for the lips, their participative experience can be defined into three broad categories (mckeever, 2013; mckeever, 2020): non-participative, tokenistic or participative. non-participative experiences involve feelings of isolation, exclusion, and inability or unwillingness to participate in legal proceedings. tokenistic experiences are defined as obstruction, caused by delays or lack of adequate information or guidance or ineffective support during the legal proceedings. participative experiences include the engagement of the user to an extent where they navigate the process, communicate with the other actors (parties, judges etc.), feel supported in the process and have opportunities to collaborate(mckeever, 2013). this model which is based on a two-year empirical study on lips and court actors in the civil and family justice system has found that when the feeling of participative experiences is increased for the lips, it reduces the risk of breach of art 6 of echr for them (mckeever http://10.17561/tahrj.v20.7516 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 6 et al, 2018). hence, this model suggests that participative experience needs to be increased through processes that can make them feel enabled (‘where they are made to feel supported and equipped to engage in the process’), allows collaboration (‘where individuals are supported in their journey through the process’) and provides engagement (‘where users can navigate the process and communicate with the other actors’) (mckeever, 2013). this in turn lays the foundation for future reform initiatives to further develop certain processes whereby access to court can be enhanced effectively for the lips in alignment with the open justice principle as embedded with art 6 of echr. a. how does oc enhance the private aspect of open justice? the hmcts reform programme aimed at digitising the whole of the processes of the court needs to be tested on ‘effective participation’ as far as its ambition of modernisation, efficiency and improved access are concerned. the current reform programme identifies two ways of achieving the set goals6: first, by simply replicating the current practices of the court digitally; second, by radically using the new it for designing new processes and procedures that are not capable of being carried out on paper. building upon the latter is the oc proposed under the ccsr report (briggs j, 2016). it intends to adopt a three-stage structure namely: stage 1: ‘triage’ or the automated process; stage 2: mix of conciliation with case management by the case officer and, stage 3: ‘determination of disputes by the judge either on documents, by video or face to face hearings with no default assumption that there must be a traditional trial.’ a close analysis shows that these stages mirror the participation experiences enlisted under mckeever’s ladder of participation as discussed before (mckeever, 2013). for example, through user-focused stage 1, parties are enabled to identify their grievance and a legal document is produced which is easily understandable for both the parties and the court. subsequently, all the documents with essential details (of parties, evidence etc.) are placed before the court. these are always accessible to the parties along with the judges during the proceedings right from the start. then, stage 2 adopts conciliation as a cultural norm. it is showcased as the next step instead of a purely optional process, and not compulsory. it is built upon the current small claims mediation service by inviting parties to collaborate and engage in an appropriate form of conciliation (briggs j., 2016). finally, stage 3 adopts adjudication that radically departs from the traditional practice and adopts resolution based on written communication as a primary practice. if parties reach this stage, then case officers become facilitators who produce case files ready for trials. this allows effective engagement with the judge and the opposite parties. since the case file is prepared through case officers, it is understandable to the judge, so that he/she can make a fair decision. further, if a decision cannot be made based on written communication, 6 joint statement of lord chief justice, senior president of tribunals and the lord chancellor,reforming hm courts and tribunals service (25 july 2013) https://www.google. com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajah ckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernme nt%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_ t49tsip63k5v&ust=1666863928927909 http://10.17561/tahrj.v20.7516 https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajahckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernment%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_t49tsip63k5v&ust=1666863928927909 https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajahckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernment%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_t49tsip63k5v&ust=1666863928927909 https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajahckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernment%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_t49tsip63k5v&ust=1666863928927909 https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajahckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernment%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_t49tsip63k5v&ust=1666863928927909 https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0camqw7ajahckewiitmevzv36ahuaaaaahqaaaaaqaw&url=https%3a%2f%2fwww.gov.uk%2fgovernment%2fpublications%2ftransforming-our-justice-system-joint-statement&psig=aovvaw0ibdxrmmc_t49tsip63k5v&ust=1666863928927909 sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 7 then the options of telephone or video conference are explored with no assumption of compulsory face face-to-face hearing. moreover, such modes are preferred for their effectiveness in such cases. this is also supported by the cjc -rapid review report that during covid-19, the majority of respondents felt that audio hearings (61.3%) and video hearings (68.37%) were more effective in allowing both parties to participate than a physical hearing (cjc,2020). the respondents felt that such modes of hearing were especially effective for non-contentious, non-complex and routine matters (cjc, 2020, para 5.28). however, the report also highlights the challenges posed by remote hearings (for the lips) due to a lack of guidance or support to access such hearings. additionally, some other technical issues like lack of voice clarity, video clarity and interruptions, were also found commonplace. b. how does oc stand to overcome the challenges of an adversarial setting for the lips? adversarial setting mainly poses two kinds of challenges for the lips: 1. lack of guidance which makes the self-navigation of the civil system difficult and frustrating. 2. feelings of non-participation or tokenistic participation which is a consequence of the absence of guidance and support in the present adversarial setting (mckeever, 2013). as far as the challenges of lack of guidance are concerned, they potentially stand rectified through stage 1(‘triage’) and case management support in stage 2 of the oc. the ‘technical guidance’ and ‘legal support’ in-built into the software aims to provide guidance to the lips from start to finish of the oc process. this is evidenced by the successful model of the civil resolution tribunal (crt) that is currently implemented in canada (salter & thompson, 2017). the crt takes a four-step end-to-end design instead of an add-on approach. it begins with self-help or the solution explorer which assists a user in understanding and resolving their dispute (luger & chakrabarti, 2009). it is accessible to all users without any cost and is structured in a computer-readable format. the further stages of negotiation and facilitation are designed to encourage collaborative resolution for better outcomes for the users at less cost. additionally, the facilitator is equipped to identify other barriers like language or disability and adopt interpretation services to overcome such barriers (mckeever, 2013). further, non-participative or tokenistic experiences are reduced for the lips through all stages due to inherent features allowing collaboration and engagement with the legal process. significantly, the stage of adjudication, which, unlike the traditional trial process is a hybrid of the adversarial and inquisitorial processes. this offers ‘effective participation’ to the lips through direct engagement with the other party and the judge (mckeever, 2013). it practically implements the reform standards based on the ‘ladder of participation’ model, designed to encompass enablement, collaboration, and engagement of the user, with the entire process (mckeever, 2013). therefore, unlike an adversarial system, it allows early resolution through mutual agreement between the parties (salter & thompson, 2017). further, if the question of audio/video hearings arises, oc would ensure greater participation by the parties (lips) in comparison to a physical court due to ease of access online (briggs j., 2016). indeed, the challenges of voice clarity etc. could still arise in such cases that can impact user engagement with the process. this can be essentially http://10.17561/tahrj.v20.7516 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 8 detrimental in cases whereby significant explanations are required from the defendant to determine the outcome in a fair manner (r howard league v. vice chancellor, 2017). however, the oc would accommodate oral hearings when such a case demands, even if it is not the general rule. this way it enhances the effective participation of the lips by overcoming the challenges of access to a physical court in a pure adversarial setting. b. online court and the public aspect of open justice as discussed before, susskind argues that ‘information transparency’ is an important element required for enhancing the open justice principle and hence general public along with the media needs to have access to court, court proceedings and court materials/decisions (susskind, 2020). according to him, information transparency means ‘visibility over the court processes, procedures and operations along with public access to advance notice of hearings, to some kind of record of proceedings and to information about the parties and procedure involved, the nature of the dispute and to some detail about the case management decisions, the substance of the determination itself and an explanation of the finding’ (susskind, 2020). this public aspect of the open justice principle is embedded under art 6 (echr) which relates to the right of the media and the members of the public(zuckerman, 2021). it also contains the account of open justice as an open court that allows media and the public to observe the proceedings, access the documents and judgments, and publicise/report it under art 10 of echr as a matter of freedom of speech and expression (ryder,2018). bentham describes it as the ‘soul of justice’ that exposes the ‘judicial process to the public gaze and constitutes an important safeguard against bias, unfairness and incompetence’ (twining, 1985). while the general rule is that the hearing must be in public, however, it is not an absolute rule. hence, art 6 adds that: the press and public can be excluded from all or part of the trial in the interest of morals, public order or national security, for the protection of the interest of juveniles or private life, to the extent strictly necessary in the opinion of the court in special circumstances (echr). further, it is also subject to certain practical limitations like the availability of physical space and good order in the courtroom (re guardian news, 2010). additionally, access to court can be limited in a case that does not involve the determination of rights and obligations (gearty, 2001). similarly, when parties decide to go for alternative resolution mechanisms like mediation or conciliation, there is no right for the public or the media to access it (genn, 2009). nevertheless, the prohibition of the press is subject to ‘strict necessity’ and is not a general rule (scott v. scott, 1913). for example, even during covid-19, a threat to public hearings was realised. hence, a protocol was issued by the lord chief justice on 20th march 2020, stating that: ‘remote hearings so far as possible should be public hearings’(protocol, 2020). it provided three ways of achieving this, namely: by conducting a hearing from an open court (not possible during covid 19), allowing accredited journalists to log in (as a partial solution) and finally, by live streaming. although a likely restrictionism showcased by the english court towards live streaming, during covid, as seen from legal prohibitions (law commission of england & wales, 2014) and saving it http://10.17561/tahrj.v20.7516 sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 9 for exceptional cases7, this option was, nevertheless, explored in cases like the national bank of kazakhstan (2020). here, teare j directed a completely open livestream allowing anyone clicking on the link to directly access it on youtube without any warnings or conditions under which the court materials would be made available. in this case, the hearing was uncertain following the outbreak of covid-19 leading to travel restrictions and social distancing. thomas sprange (for the defendants) argued that a short adjournment should be granted as he was not confident about the video conferencing facilities in such a complex case involving overseas witnesses in diverse geographical locations. however, teare j emphasized that ‘if at all, possible arrangements should be made for the case to go ahead using remote facilities’(national bank of kazakhstan,2020). he added that in the current circumstances, it is important to ‘use the technology and allow the court business to run as normal’. further, the court highlighted that ‘courts exist to resolve disputes and the default position is that all jurisdictions should conduct hearings with one, more than one or all participants remotely’. this is ultimately underpinned under the court of appeal youtube ‘live streaming pilot’ that finds legal backing court of appeal (recording and broadcasting) order (2013), that allows live broadcasting of court proceedings. indeed, the judgment doesn’t make a negative proposition in regard to adjournment, however, lays the importance of holding public hearings whenever possible using remote facilities (irrespective of the outbreak) as an innovative solution (stewarts, 2020). thus, indicating that open justice remains a ‘vigorous manifestation’ of the principle of freedom of expression under art 10, echr (r v. secretary of state for foreign and commonwealth affairs, 2011). a. how do modern developments in public hearings pose challenges to the open justice principle? traditionally, in the english system, a public hearing was understood as a normative oral hearing, where public access to the court meant people could attend the court process and observe the proceedings from start to finish, which was completely oral (zuckerman, 2021). therefore, the public could hear the entire proceedings and easily understand them. however, due to modern developments in the procedures, oral hearings have been replaced with written communications, (as seen in continental europe) (zuckerman, 2021). this means that a public hearing can be entirely oral or can have limited orality with an examination of written documents, and in some circumstances, it can be based on the determination of written documents only (smithkline beecham v. cannaught laboratories, 1999). from a conservative lens, proceedings that are based on only written materials would not allow public hearings as such and might deter the principle of open justice centred around the idea of an open court. susskind argues that it is disproportionate to expect a physical gathering of parties in a physical court every time even if the case involves a low-value dispute (susskind, 2020). moreover, he argues that ‘physical courts are not the epitome of open justice and only provide limited real-time transparency’ where even if the public is in the audience of the judge, they cannot know the approach followed by the judge to reach that judgment. hence, it is not be assumed that when the public can observe the judge 7 26th march protocol, making live streaming completely discretionary. subject to conditions of section 85a to d courts act 2003, https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appealhome/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/ http://10.17561/tahrj.v20.7516 https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/ https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/ online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 10 while he is making a decision, it leads to the utmost form of transparency as the mindset or decision-making process of the judge is still hidden from public knowledge (susskind, 2020). in such a scenario, fixating on a physical hearing can prove very costly, complicated and time-consuming for the resolution of such disputes. hence, what becomes important is a sensible mechanism that can allow scrutiny of the court materials/decision and provide ample information to the public about the case. due to this shift from public hearings towards written documents, gaining access to court materials is of paramount importance for open justice (bosland &townend, 2018). under art 6(1) of echr, it is required that the judgments be made public, even if not pronounced publicly (zuckerman, 2021). however, case statements/ court documents are generally prepared by lawyers and contain legal jargon that is not easily understandable for non-lawyers and non-judges. this makes it difficult for the public to comprehend the trial, let alone report or publicise it (zuckerman, 2021). similarly, the legal language used in the judgments or orders is not easily comprehensible (english v. emery & strick ltd, 2002). moreover, there is per se, no right to access documents by a non-party. in the cape intermediaries case (2019) it was held that ‘the default position is that the public should be allowed access, however, a non-party still has to explain why he/she seeks such access and how is it advancing the open justice principle’. therefore, in such a scenario the ‘practise and proportionality’ will continue to stay relevant to such a request (cape intermediaries, 2019). given the limitations, the role of media becomes even more important to inform and empower the non-parties or the general public. however, due to administrative difficulties and practical impossibility in the face of scarcity of space and difficulty of maintaining good order, media is cut off from the proceedings, if not deliberately, consequentially (bosland & townend, 2018). journalist in the uk has since long raised complaints about difficulty in accessing court documents and exhibits (bosland & gill, 2014). amongst other issues are unreliable and inconsistent access to daily court lists and information about the court orders requiring a physical visit to the courts (law commission of england and wales, 2014). b. how does oc overcome the challenges of access to a physical court and enhance open justice? the third stage of oc finds compatibility in existing rules that allow the determination of disputes based on written communications with no compulsion of the oral hearing (briggs, 2016). as far as the challenges of accessing court documents are concerned, they stand potentially rectified through oc as they can be accessed with ease, online, as against requesting hard copies of such documents by physically visiting the court. for example, currently, the australian federal e-courtroom, allows the public to access the transcript of the electronic messages between the judicial officer and the parties on request and subject to the usual rules of cpr.8 similarly, under the crt framework, the members of the public can request soft copies of the submissions and evidence provided during the decision process.9 8 federal court of australia, access to court documents,https://www.fedcourt.gov.au/services/access-tofiles-and-transcripts/court-documents 9 civil resolution tribunal, information, access and privacy policy https://civilresolutionbc.ca/resources/ information-accessprivacy-policy/ http://10.17561/tahrj.v20.7516 https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/court-documents https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/court-documents https://civilresolutionbc.ca/resources/information-accessprivacy-policy/ https://civilresolutionbc.ca/resources/information-accessprivacy-policy/ sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 11 moreover, if there comes a question of determination through remote hearings/ video conferences, media and the public can easily access it through online logins or modern avenues like live streaming without facing any geographical constraints (law commission of england & wales, 2014). in the light of video conferences and remote hearings during covid-19, the rapid review report has found that journalists and reporters who responded to the survey have affirmed that they were able to attend the hearings remotely for most parts during covid and nowhere access was refused. further, they have also stated that the ability to attend hearings online has positively impacted the number of hearings they could cover due to a lack of geographical constraints that exist in a physical court (civil justice council, 2020). however, the report has also highlighted the failures to attend remote hearings due to administrative issues like deficiencies in the arrangements for requesting access to court documents and delays in processing access requests for remote hearings. moreover, such hearings could still require a subject access request and can potentially pose risks of delays. however, this is still relatively practical to overcome in comparison to the substantive challenges of a physical court as discussed before. alternatively, this is more technical in nature and is subject to robust it and necessary infrastructure with constant review and revision. hence, online courts stand to effectively enhance public and media participation by overcoming the limitations of a physical court. 2. addressing the threat of access to online court for the ‘digitally excluded’ the first section discussed the principle of open justice and how online courts stand to enhance both private and public aspects of the open justice principle as embedded within art 6 of echr. in this section, the article will address the criticism of digital exclusion that undermines access to the online court. further, it will discuss the various steps that are currently being taken along with the future steps that can be taken to overcome the challenges of digital exclusion for the lips and enhance the private aspect of the open justice principle. a. the digitally excluded, access to justice issues and current steps towards ‘digital inclusion charitydoteveryone has noted that: the internet is the defining technology of our age. connectivity and information are utilities that like electricity or water that touch and influence necessary aspects of our life (the digital attitudes report, 2018) however, statistics suggest that almost 5 million people in the uk have never used the internet, of whom most were older than 75. additionally, over 11 million adults lack basic digital skills such as being able to complete a form online or re-locate websites (ons, 2017). further, the white paper has recognised that 70% of the uk population is either ‘digital with assistance’ or ‘digitally excluded’ (moj, 2016). significantly, the research from the legal education foundation found that lips are likely to be more digitally excluded than the general population as ‘access to the internet does not mean http://10.17561/tahrj.v20.7516 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 12 effective accesses’(bach commission, 2016). in this context, hazel genn argues that online justice poses accessibility challenges for those who are digitally excluded. this is so, because, for the online court to be accessible; people need to be digitally capable (genn,2009). additionally, they need to own devices that connect to the internet. further, shannon salter argues that without free access to case laws and authoritative legal commentary, it is unreasonable to expect that people would be able to present their cases before the tribunal. further, she adds that the current format of judgments published online is a non-machine-readable unstructured format, thereby depriving the publicity/reporting rights (rodrick, 2017). currently, the hmcts under the reform programme provides technical support with all new digital services through the ‘assisted digital project’ (gtf, 2017-2021). the prevention of digital exclusion report suggests that the ‘assisted digital project’ is aimed at identifying people who are at high risk (like people with disabilities, older people, lips, people in rural areas etc.) of digital exclusion and then minimise the exclusion through multi-approach channels (like face-to-face, telephone, webchat assistance along with access to paper channels for those in need), design and technology (justice, 2018). this effectively suggests that technology needs to be combined with face-to-face help. also, technology needs to be used to design justice services that even the ‘computer challenged’ find easy to use. this way digital inclusion can always be kept at the forefront. presently, some free self-help resources provide digital training at low costs. additionally, gtf (good things foundation) provides an online learning platform for free, as part of an approach combining face-to-face support and digital learning (gtf, 2017). such combined support is particularly relevant as hmct’s assisted digital service will not provide comprehensive digital skill training but will provide digital help. moreover, the ccsr review report has acknowledged that the self-help at stage 1 cannot be of much assistance if it cannot be accessed in the first place. (briggs, 2016) hence, for those who are completely unaware of how to use the computer or access the internet, the most effective approach is to, first, provide face-to-face training on how to use a computer/access the internet, and then provide digital help all through the oc process (briggs, 2016). this would allow them to enjoy and appreciate the benefits of technology. for example, ageuk has reported that due to ‘network support such as drop-out sessions, classes and peer support programmes’, older people felt that ‘life was more convenient and enjoyable due to the internet’ (age uk, 2015). further, in terms of providing digital help, lessons can be learnt from the traffic penalty tribunal. here, the ‘proxy users’ complete the online forms for those who are offline or those who post the forms in.10 b. what more can be done towards digital inclusion? the prevention of digital exclusion report highlights that some users will simply want reassurance or reminders on how to use certain features after they are trained to use the computer or access the internet. hence, it suggests that online courts should cater to the most affordable and ubiquitous modes of digital interaction. for example, the web 10 traffic penalty tribunal, https://www.trafficpenaltytribunal.gov.uk/want-to-appeal/. http://10.17561/tahrj.v20.7516 https://www.trafficpenaltytribunal.gov.uk/want-to-appeal/ sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 13 chat can pop up automatically to help the users re-engage when they get stuck (justice, 2018). further, the report concludes that hmcts should utilise technology to design justice services such that, they facilitate ‘saving, editing, returning to forms, making it easy to change fonts, allowing users to see progress along with providing lots of white space, removing unnecessary information avoiding repetitions of address and providing inbuilt customisable features that can work with even cheaper or older devices’.11 moreover, byrom has recommended that to maximize the utility of the technology for those without legal skills, judgments must be published in an xml/machine-readable format, a standard developed by the publications office of the european union (byrom, 2019). hence, the report concludes that extensive use of technology can potentially outweigh the abovementioned concerns related to accessibility. in this context, the oc allows remedying most problems that would exist even if the courts were entirely physical (justice, 2018). in addition to the physical barriers, there are also barriers to language and understanding (pleasance & balmer, 2015). these issues can also be better addressed through the oc than in a physical setting, as stage 1 software can be updated to include language translation options (cjc, 2020). further, it can produce all legal documents in a machine-readable format and enhance comprehension. hence, accessibility issues arising due to digital exclusion can be overcome with first, robust it and funding; second, implementation of the conclusions of the prevention of digital exclusion report and third, subject to collaborated efforts of the hmcts and the government (justice, 2018). 3. addressing the threat of ‘uncontrolled access’ to online courts in the previous section, this article concluded that digital inclusion is achievable through a multi-channel approach that includes face-to-face help, design and technology. further, i discussed the various recommendations of the prevention of digital exclusion report, to better exploit the potential of technology and utilise the online courts towards the complete attainment of the private aspect of open justice and subsequently, access to justice (justice, 2018). this section discusses the emerging challenges of enhanced access to online courts for the public. i discuss how modern avenues like live-streaming and live-tweeting stand to breach the right to privacy due to easy and uncontrolled access by all to online proceedings. a. how do modern avenues enhance the public aspect of open justice through online courts and pose privacy threats? puddister and small (2019) have argued that the overreaching potential of technology has changed the whole nature of court reporting. they argue that media persons are no longer required to take notes in the courtroom, as they can disseminate the information in real-time from the court to outside the courtroom. similarly, the public only needs internet access to publicise the court proceedings. further, sway has argued that digital technologies link the public directly with the court, which are the sources of information, and allow greater transparency. this has further enhanced the educative function of the media, by 11 for example, see the website of dna website, https://www.dnamatters.co.uk http://10.17561/tahrj.v20.7516 https://www.dnamatters.co.uk online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 14 allowing the communication of how trial processes work in real-time (sway, 2016). however, modern avenues like live-tweeting12 live-streaming, online communication between stakeholders, and audio/video conferences, allow more discretion in the hands of the media about reporting without scrutiny. consequently, the coverage is often less comprehensive and balanced than in a traditional media format (warren, 2014). additionally, it has opened the gates of public reporting via new media platforms for ‘citizen journalists’13 that apply less balanced forms of freedom of expression.14 unlike, professional journalists, citizen journalists are not subjected to any editorial scrutiny (barrett, 2011). hence, sensitive data gets reported through social media which is then difficult to retract (synodinou, 2012). moreover, the upcoming avenues like live tweeting from a live-streamed court proceeding can be concerning, for the tweets appear as text messages without context. moreover, the number of characters in the tweets is limited which makes it impossible to contextualize the tweets in their entirety or explain the complexity of the case (winnick, 2014). this can present a misleading picture of the trial and can undermine the process of administration of justice (sossin & meredith, 2013). this way a conservative view of ‘opening the courts for all’, though enhances complete transparency in the court proceedings, poses threats to the open justice principle by turning into a ‘disruptive’ one (puddister and small, 2019). b. the increasing tension between the right to privacy and the public aspect of the open justice principle? historically, the jurisprudence of the ecthr has sided with the publicity principle or public aspect of the open justice principle and has taken a restricted approach towards reporting restrictions or anonymity orders. for example, in r v. sarker (2018) the trial judge imposed a blanket restriction on reporting rights of the media on grounds that the potential internet publications would create links with previous stories containing damaging information about the party. similarly, in the ex parte british broadcasting corporation (2015), the trial judge imposed a blanket ban on reporting rights of media about any details of a high-profile murder case due to the risk of damaging commentary. though in both cases the error was corrected in favour of the publicity principle at the higher courts, it had implications for the right to privacy and the ‘right to be forgotten’ embedded within art 8 of echr under which ‘everyone has a right to the protection of personal data concerning him or her’ (google spain v. aepd,2014). the ecthr has always tried to uphold the right of the public to know something in the public interest and simultaneously, preserve the privacy of an individual in some sensitive cases. hence, while access is not always denied, orders pertaining to the non-revelation of the identity of victims or witnesses may be given in some cases like those involving child victims (children & young persons act, s 44). significantly, the court places reliance on the ‘welfare of children and young people’ in deciding whether reporting restrictions are required or not (children & young persons act, s. 44). however, the restrictions do not necessarily also restrict access to court proceedings. moreover, the restriction on the press is limited to reporting 12 twitter is an online microblogging service that distributes short messages or blogs of no more than 280 characters called tweets and is influential in shaping politics and culture. <https://www.britannica.com/ topic/twitter> 13 citizens with no professional qualifications acting as journalists, without scrutiny and checks. 14 for example, scott v. scott, (1913) ac 417, 463 http://10.17561/tahrj.v20.7516 https://www.britannica.com/topic/twitter https://www.britannica.com/topic/twitter sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 15 the identity of the child or details that lead to his/her identification. as such there are no restrictions on the reporting of the proceedings per se (the children and young persons act, s 49). for example, in mckerry case (2000) and damien pearl case (2005), it was held that in the interest of the public, the reporting restrictions be partially lifted. hence, the court said that for the public interest, it is enough to publish the name of the child defendant who was involved in the driving offence. however, his photograph, address or school name should remain restricted from publication to protect his welfare and privacy. one more way the publicity principle is being preserved in a democratic society is by way of expanding the scope of the definition of media from ‘traditional’ media to include bloggers as well as ‘citizen journalists’ some commentators argue that even ‘a-list’ bloggers can be termed as professionals as they ‘bear the hallmark of the best of legacy news media (singer, 2007, p.80). this promotes a more egalitarian model of journalism that treats citizens as equally equipped to gather and disseminate news as the professional media (ugland and henderson,2007). building on the blurred lines between the professional media and citizen journalists, since 2011 the united kingdom’s supreme court (the uk’s highest court of appeal) has allowed the use of live test-based communications in the courtroom under a policy that makes no distinction between who can or cannot live text from the court, thereby siding with the right of the public to know (luft, 2011). however, this has implications and requires caution. some commentators like sonja west have noted that professional media serves as gatekeeping by making editorial decisions regarding what is or not is noteworthy and makes sure to communicate the information in a timely manner. they devote time to an investigation, and give attention to). hence, she argued that journalists should be set apart from others who are occasional public commentators. similarly, during the early developments of live text-based communication from the courtroom, in england and wales, in opening consultations. the chief justice of england and wales noted that ‘non accredited commentators cannot be presumed to be accredited media representatives set out by the press complaints commission’s (judge 2011). further, he suggested that reporting without any self-restraint by the non-accredited media persons might lead to a great likelihood of prejudicial reporting’ (judge, 2010). this is also reflected in the 2011 guidance (judge, 2011) whereby a distinction is drawn between traditional journalists and non-traditional journalists without explicitly using the terms bloggers or citizen journalists. the guidance simply states that only lawyers and ‘representatives of the media’ are automatically allowed to communicate from the courtroom (in the form of text, blog or tweet). the guidance defines ‘representative of media’ as one having a level of knowledge of the ‘ground rules of traditional court reporting in a fair and accurate manner such that it does not cause any interference with the administration of justice (judge, 2011). the members of the public though allowed will be needed to seek permission from the court to do the same. hence, presently while media can automatically access and report on court proceedings including live text-based communication from the courtroom, the public needs to seek permission for reporting from the courtroom. however, putting a ‘permission clause’ for the general public does not necessarily fulfil the void created due to the lack of professional training amongst non-traditional media persons. hence, it does not guarantee the protection of privacy and sensitive information. this challenge gets intensified in a setting like oc, given it naturally enhances http://10.17561/tahrj.v20.7516 online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 16 access more than a physical court through options of live streaming as seen in the kazakhstan case (2020). this opens the door for the media as well the public to access proceedings and use live text-based communication from the courtroom (live-tweets, texts and blogs) without much scrutiny. in such a scenario members of the public would be placed in a position, where they can report sensitive information like identity including the photographs, due to a lack of professional training or complete understanding of the press norms. moreover, it would be very difficult to hold them accountable for breaching such reporting restrictions as, presently, the law around reporting restrictions states that: ‘it is unlawful to print or publish or cause or procure to be printed or published ….in relation to any judicial proceedings, any indecent matter or indecent medical, surgical or physiological details being matters or details the publication of which would be calculated to injure public morals’ (judicial proceedings act, s 1). further, it states that no person, other than a proprietor, editor, master printer or publisher shall be liable to be convicted under this act (judicial proceedings act, s 1.2) however, there is no clear guidance or case law that clarifies if the online edition of a newspaper or periodical or publication on twitter or other social media platforms also falls within the definition of ‘publication’ and who could be a ‘publisher’ in such instances. this creates a prospect for ‘uncontrolled access for the general public with no accountability. therefore, in sensitive cases requiring the protection of the confidentiality of victims and witnesses for their safety, uncontrolled access can lead to irreparable damages (pudister and small,2019) in such a scenario, puddister and small (2019) argue that such threat of uncontrolled access and uncontrolled publication will eventually lead to a judicial tendency of imposing reporting restrictions requiring the media personnel to either completely anonymise the identity of the person concerned or not report at all. thereby creating tension between the right to privacy and the publicity principle. significantly as such access allows real-time sharing, immediate publishing without scrutiny and live-tweeting without context, removing any space between the courtroom events and publication or retraction (barrett, 2011). for example, the risks of any report being republished or becoming prominent at the time of trial, thereby jeopardising the trial, would prompt the judges to impose reporting restrictions in the future. in contemporary times, the ecthr jurisprudence suggests that the court has more actively balanced the right to privacy against other competing interests, for example, matters of national security requiring mass surveillance measures.15 this is one direct evidence of the growing role of the right to privacy in the current scenario. moreover, in the context of online courts, privacy issues are being taken more seriously in the uk due to their potential for significant leaks during the course of proceedings and difficulty in retracting leaked pieces of information later (scott v. scott, 1913). for example, it was emphasized in google spain v. aepd (2014) that while ‘freedom of expression is vital for a democratic country, the rights of dignity and individual liberty cannot be treated as secondary either’. following the google spain 15 for example, see, big brother watch and others v. united kingdom [gc] app no 58170/13, 62322/14, 24960/15 (ecthr, may 2021) http://10.17561/tahrj.v20.7516 sabreen ahmed the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 17 case, art 17 was adopted in the general data protection regulations (gdpr) statutorily as ‘right to erasure’ aimed at removing such private information about individuals which has the potential to cause serious damage to his/her private life. this right allows data to be removed when it is no longer relevant or is damaging or immaterial. the right to erasure is aimed at providing the data subject with some control over his private information which is against his private interest or has no relevance in the present. c. the way forward: balancing public aspect of open justice and right to privacy the rising tension between the publicity principle (allowing access and reporting rights to all media, bloggers or citizen journalists alike) and the right to privacy (calling for the protection of sensitive and private information) requires certain regulation measures which can determine how non-traditional media and the general public would access the court proceedings and subsequently exercise their reporting rights. this essentially requires that rules are laid down covering the grey area of contempt for the publication of any sensitive information which breaches the press norms and laws affording reporting restrictions (judicial proceedings act,1926). this means that there is not only a ‘permission clause’ for the non-traditional media persons but also some penalty point system in place to hold them accountable for breaching reporting restrictions and disrupting the court proceedings and justice delivery. the aim of the point system is to make bloggers and citizen journalists not only seek permission to report but also establish their accountability.16 such a system would ask the bloggers/citizen journalists to reveal their identity and would allow readers to flag any errors in the content or breach of a press norm or violation of the right to privacy to a review board established within the system itself. pursuant to this, such bloggers or citizen journalists could be asked to either revoke the content, provide an apology or could have their license cancelled for reporting false or misleading pieces of information. this is very similar to the penalty point system in place in the case of traffic enforcement laws in the uk.17 here the court can put fine on anyone and ‘endorse’18 one’s driving record with penalty points if he/she is convicted of any motoring offence. one can also be disqualified from driving if the penalty points are built up to 12 (which is above the highest point of penalty i.e., 11) within a period of 3 years.19 following such a mechanism during live streaming through oc would create some sort of ‘self-policing’ for the bloggers and citizen journalists who are given permission to report from the courtroom using live text-based communication (text or blog or tweet). further, there can also be a ‘blogger/ citizen journalists code of ethics’ creating an obligation to adhere to certain principles of accuracy, honesty and fairness while reporting, blogging, texting or tweeting.20 16 accountability here means that bloggers and citizen journalist accept their errors, take back such frivolous blogs/tweets/texts either by themselves or whenever it is complained against. 17 https://www.gov.uk/penalty-points-endorsements/how-to-check-your-endorsement-details 18 endorsement means that every offence is given a special code along with penalty points on a scale from 1 to 11. the more points the more serious the offence. 19 penalty points (endorsement) <https://www.gov.uk/penalty-points-endorsements> 20 generally based on the national union of journalists ethics, <https://www.nuj.org.uk/about-us/rules-andguidance/ethics.html> http://10.17561/tahrj.v20.7516 https://www.gov.uk/penalty-points-endorsements/how-to-check-your-endorsement-details https://www.gov.uk/penalty-points-endorsements https://www.nuj.org.uk/about-us/rules-and-guidance/ethics.html https://www.nuj.org.uk/about-us/rules-and-guidance/ethics.html online courts and private and public aspects of open justice: enhancing access to court or violating the right to privacy? the age of human rights journal, 20 (june 2023), e7516 issn: 2340-9592 doi: 10.17561/tahrj.v20.7516 18 conclusion in a way, digital technology empowers the media, which ultimately emboldens the public. the analysis of vast jurisprudence suggests that online courts stand to overcome the challenges of a physical court and ultimately enhance open justice. however, the modern avenues also pose major challenges to the right to privacy which is often overlooked by the advocates of the open justice principle. hence, the publicity principle in a democratic society needs to be balanced with the people’s individual right to privacy. a more conservative approach requires that the open court principle be expanded vitally with online courts such that it blurs the lines between traditional and non-traditional media. however, a more nuanced approach needs to address that allowing unregulated live textbased communications to non-traditional media would also imply increasing third-party interventions in the court proceedings by actors with no formal journalistic pieces of training or understanding. consequently, this can turn the principle of open justice into a disruptive one. significantly, this raises concerns about ‘opening the courtroom door’ way too much, such that personal data gets out of hand and privacy becomes a luxury. hence, it is pertinent that some regulations are placed right from the outset, so far as uncontrolled access, and unscrutinised reporting of court information during online proceedings are concerned. significantly, it requires regulations in the form of a ‘penalty point system’ making bloggers and citizen journalists accountable for any frivolous reporting so that any unsolicited leakage of sensitive data in 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[accessed 10 february 2023]. received: 26th october 2022 accepted: 19th february 2023 http://10.17561/tahrj.v20.7516 https://www.judiciary.uk/wcontent/uploads/jco/documents/guidance/ltbc-guidance-dec-2011.pdf https://www.judiciary.uk/wcontent/uploads/jco/documents/guidance/ltbc-guidance-dec-2011.pdf https://www.cs.unm.edu/~treport/tr/09-11/luger.pdf https://www.cs.unm.edu/~treport/tr/09-11/luger.pdf https://www.ulster.ac.uk/__data/assets/pdf_file/0003/309891/179367_nihrc-litigants-in-person_book___5_low.pdf https://www.ulster.ac.uk/__data/assets/pdf_file/0003/309891/179367_nihrc-litigants-in-person_book___5_low.pdf https://www.ulster.ac.uk/__data/assets/pdf_file/0003/309891/179367_nihrc-litigants-in-person_book___5_low.pdf https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf http://asauk.org.uk/wp-content/uploads/2018/02/legal-problem-resolution-survey-2014-to-2015-findings.pdf http://asauk.org.uk/wp-content/uploads/2018/02/legal-problem-resolution-survey-2014-to-2015-findings.pdf https://www.pmb.ox.ac.uk/sites/default/files/inline-files/ryder-spt-open-justice-luxembourg-feb-2018.pdf https://www.pmb.ox.ac.uk/sites/default/files/inline-files/ryder-spt-open-justice-luxembourg-feb-2018.pdf https://www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2017 https://www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2017 https://www.stewartslaw.com/news/the-first-virtual-trial-in-the-commercial-court-stewarts-secures-continuation-of-trial-despite-covid-19/ https://www.stewartslaw.com/news/the-first-virtual-trial-in-the-commercial-court-stewarts-secures-continuation-of-trial-despite-covid-19/ https://www.stewartslaw.com/news/the-first-virtual-trial-in-the-commercial-court-stewarts-secures-continuation-of-trial-despite-covid-19/ https://www.fabians.org.uk/wp-content/uploads/2016/11/access-to-justice_final_web.pdf https://www.fabians.org.uk/wp-content/uploads/2016/11/access-to-justice_final_web.pdf online courts and, private and public aspects of open justice: enhancing access to court or violatin abstract introduction 1. access to justice and open justice principle a. online court and the private aspect of open justice: access to court and legal empowerment for l b. online court and the public aspect of open justice 2. addressing the threat of access to online court for the ‘digitally excluded’ a. the digitally excluded, access to justice issues and current steps towards ‘digital inclusion b. what more can be done towards digital inclusion? 3. addressing the threat of ‘uncontrolled access’ to online courts a. how do modern avenues enhance the public aspect of open justice through online courts and pose p b. the increasing tension between the right to privacy and the public aspect of the open justice pr c. the way forward: balancing public aspect of open justice and right to privacy conclusion references list of cases legal instruments articles/books miscellaneous resources online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 1 online misogyny and the law: are human rights protected on the net? oscar pérez de la fuente1 abstract: this paper opens by analysing the complexity of misogyny, sexism, and toxic masculinity. it then examines online misogyny, dissecting the many acts and behaviours that comprise this kind of digital discrimination. it considers the gamergate scandal and demonstrates how the video game industry reinforces gender stereotypes. it closes with an analysis of efficiency and limits of legislative systems for combatting online sexism. keywords: misogyny, sexism, toxic masculinity, it-facilitated gender-based violence. 1. sexism, misogyny, and toxic masculinity the internet has become one of life’s essential components by providing access to information and communication. unfortunately, it also facilitates the dissemination of hate speech and sexism. from trolling to toxic masculinity, online settings are often riddled with misogyny and abuse capable of harming both men and women. online misogyny can take many forms, including slut-shaming, victim shaming, objectification of women's bodies, sexualisation of female characters in video games and films, etc. this conduct not only promotes gender stereotypes, but also creates a society where violence against women is accepted. misogyny, sexism, and toxic masculinity are interrelated concepts that describe different aspects of gender-based prejudice and discrimination, particularly against women and those who don't conform to traditional gender roles. misogyny refers to hatred of, contempt towards, or prejudice against women. it can manifest in a variety of ways, such as discrimination, objectification, devaluation, or violence towards women and it stems from cultural, social, or individual beliefs and attitudes and often perpetuates gender inequality. sexism is a belief or behaviour based on the idea that one sex (usually men) is superior to another (usually women) and that this superiority justifies unequal treatment or discrimination. sexism can also take a variety of forms, such as stereotypes, prejudice, discrimination, or exclusion based on sex or gender. it is a broader term than misogyny and encompasses biases and prejudices against men and women alike. toxic masculinity refers to a set of cultural norms and expectations around traditional male behaviour that can be harmful to both men and women. these norms often emphasise dominance, aggression, emotional suppression, and the devaluation of women or feminine traits. toxic masculinity can perpetuate negative stereotypes about men and 1 associate professor. gregorio peces-barba human rights institute. international and ecclesiastical law and philosophy of law department. carlos iii university of madrid. online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 2 lead to harmful behaviours, such as violence, abuse, or harassment, and negatively impact men's mental health and well-being. it is important to note that these concepts in no way imply that all men are misogynistic, sexist, or exhibit toxic masculinity, rather refer to broader societal patterns that can be perpetuated by individuals of any gender. to address these issues, traditional gender roles and expectations to create a more equitable and inclusive society must be challenged and re-evaluated. this paper first examines the concepts of misogyny, sexism, toxic masculinity and manosphere. it then analyses the concept of online misogyny, before going on to describe the many acts and behaviours that comprise this concept. gamergate is analysed to demonstrate how the video game industry reinforces sexist stereotypes. finally, this paper looks at how legislation, education, and politics may counteract this sort of cyber sexism. sexism often naturalises sex differences to legitimate patriarchal social institutions, either by making them seem inevitable or by portraying those who oppose them as engaged in a hopeless fight (manne, 2018, 79). following clark and lange’s sexism approach, views about the inferiority of women promoted a sexually unequal society in which women were handicapped, not by innate characteristics that made them inferior to males, but by being compelled to do reproductive labour (clark, lange, 1979, 12). okin argues that women are realising that the modest formal political achievements of the early feminist movement have in no way ensured their attainment of genuine equality in the economic and social spheres of life. despite now being citizens, women continue to be considered second class. in terms of characteristics often seen as desirable in citizens, such as education, economic independence, and conditional status, women continue to appear significantly behind men. in terms of political involvement -especially at higher levelsand political influence, women lag far behind men (okin, 1992, 3-4). in the history of ideas on women roles, some authors -aristotle, aquinas, rousseau and hegelcontend that there is a natural and unassailable differentiation between the sexes that must be reflected in social position and function, all of which are acknowledged in an organic society with a natural hierarchy (coole, 1988, 2). it would be churlish to deny that the opposing viewpoint promotes sexual equality, which is why it seems more radical. it has permitted tremendous progress in this area (coole, 1988, 3). this view has been defended by socrates, plato, augustine, wollstonecraft, the utilitarian, marx and engels, beauvoir, firestone. although feminists often use terms like “sexism” and “misogyny” to characterise patriarchal oppressive forces, there has been little examination of these notions (richardsonself, 2017, 260). sexism and misogyny are prevalent in our society in many forms, causing immense suffering to women and girls. while the two terms are related, parikh states that sexism and misogyny are not identical in meaning. sexism refers to discrimination based on sex that predominantly afflicts women, whereas misogyny implies hate or entrenched oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 3 prejudices against women. online forums enable victims of sexism and misogyny to share their experiences freely and widely by granting anonymity and connecting far-away people. however, content that perpetrates sexism or misogyny also exists on the web, in particular on social media (parikh et al, 2021, 2). in addition to animosity, misogyny is distinguished by its coercive nature, which may be made express or kept implied. misogyny is the functional essence of coercive enforcement mechanisms, whereas sexism is conceptually separate; it does not compel (richardson-self, 2017, 261). due to women not conforming with the principles and standards of patriarchy -a man's world-, misogyny is associated with different types of antagonism against them (mane, 2018, 78; richarson-self, 2017, 260). this link to hostile language and conduct led zeinert to suggest that misogyny is a subcategory of hate speech and is defined as material that incites hatred towards women (zeinert, 2021, 3182). according to frenda, misogyny is a form of aggressive and abusive language that looks to eliminate women and incorporates all preconceived notions about women (frenda, 2018, 261). misogyny connotes innate hostility or prejudice against women (parikh, 2021, 2). misogyny, whilst sexist, is not a male-only trait or phenomenon -much distain for women and girls has been expressed by both men and women, under patriarchal structures and ideas (simões, amaral & santos, 2021, 172). according to a common, dictionary definition style understanding of the notion, which manne calls the naïve conception, individual agents (usually, but not always, males) who are predisposed to feel anger, animosity, or other comparable feelings against every and every woman, or at least women in general, merely because they are women are chiefly responsible for sexism (manne, 2018, 32). misogyny is often trivialised as simply disliking women (kyleanne hunter, 2021, 59). manne says that misogyny is the mechanism that regulates and enforces women's subordination and maintains male dominance within a patriarchal social order (manne, 2018, 33). manne (2018, 33-34) defines misogyny as: “misogyny is primarily a property of social systems or environments as a whole, in which women will tend to face hostility of various kinds because they are women in a man’s world (i.e., a patriarchy), who are held to be failing to live up to patriarchal standards (i.e., tenets of patriarchal ideology that have some purchase in this environment).” consequently, sexist ideology frequently consists of assumptions, beliefs, theories, stereotypes, and broader cultural narratives that portray men and women as significantly different in ways that, if true and known to be true, or at least likely, would make rational people more likely to support and participate in patriarchal social arrangements. in addition, sexist ideology includes depictions of patriarchal social structures as more desirable and less difficult, disappointing, or unpleasant than they really are. manne characterised misogyny as it serves to police and maintain a patriarchal social order without necessarily going through the assumptions, beliefs, theories, values, etc. of individuals. misogyny helps to actualise or bring about patriarchal social connections in direct and often forceful ways (manne, 2018, 79). online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 4 the council of europe’s 2019 recommendation on preventing and combatting sexism defines sexism as: “any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of: i. violating the inherent dignity or rights of a person or a group of persons; or ii. resulting in physical, sexual, psychological or socio-economic harm or suffering to a person or a group of persons; or iii. creating an intimidating, hostile, degrading, humiliating or offensive environment; or iv. constituting a barrier to the autonomy and full realisation of human rights by a person or a group of persons; or v.     maintaining and reinforcing gender stereotypes” (council of europe,    2019, 10). feminist theory investigates misogyny in both historical and present situations to explain how sexism grows with culture. misogyny is described not just as behaviour that objectifies, diminishes, or degrades women, but also as the exclusion of women, shown in discrimination, physical and sexual abuse, and hostile attitudes toward women (farell et al, 2019, 88). in general, sexism and misogyny look to maintain or restore a patriarchal social order. however, sexism feigns reasonableness, whereas misogyny becomes aggressive and attempts to force the issue (mane, 2018, 80). misogyny therefore aims to stifle the public and political voices of women, to push women away from public and political places, and to undermine any efforts to establish gender equality in the public domain (baker, jurasz, 2019b, 100). as a result, misogyny is a self-masking phenomenon: attempting to call attention to it is likely to increase its prevalence. (manne, 2018, xix). misogyny is similar to hostile sexism (glick and fiske, 1997; garcía díaz, 2021, 84) and is based on three axes: (i) the idea of domineering paternalism, i.e. understanding that women are inferior to men; (ii) the concept of competitive gender differentiation, which considers that women are different from men in the qualities that qualify them for public life; and (iii) heterosexual hostility, the consideration that women are objects of sexual desire (garcía díaz, 2021, 84). the relative absence of sex from the majority of institutional definitions of hate speech is indicative of a blind spot and shows the institutional failure to perceive gender as a social component sufficient to incite hatred. several factors are at play here. the widespread notion that fundamental gender equality has been achieved, leaving merely vestiges of sexism in popular culture, may explain the reluctance to refer to sexist speech as hate speech. the lack of gender as a component of hatred is further explained by the fact that although hate speech targets “vulnerable minority” with racist and xenophobic aggressions aimed at their annihilation, the same cannot be said for women (khosravinik, 2018, 52). oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 5 the broader concept of misogyny, which may or may not involve violence, yet almost always involves some form of harm. this harm may be direct, manifesting as psychological, professional, reputational or, in some cases, physical harm. alternatively, it may be indirect, in the sense that it makes the internet a less equal, less safe, or less inclusive space for women and girls. this cultural, rather than legal, approach captures manifestations and effects of online abuse that extend beyond violence, such as the chilling, silencing, or self-censorship effects this phenomenon has on women, and enables us to consider manifestations of online misogyny in the broader political contexts of the online culture wars (ging, siapera, 2018, 516) toxic masculinity refers to conventional male ideas that prioritise violence and domination above empathy and sensitivity, attributes often associated with women. popular culture, such as movies, television programs, music videos, and video games, often reinforces these ideas, creating an environment in which males feel pushed to conform to these norms to achieve success. interestingly, the term toxic masculinity comes from the work of sociologists and psychologists working in the early 1990s, looking at different aspects of men’s thought in reference to feminism per se (haider, 2016, 557). according to haider, these studies examined different representations of masculinity and men’s relationship with their fathers, and not in relation to feminism as many people believe (haider, 2016). some of these assessments centred on the social scripts that surrounded war, portraying idealised masculinity as a model for heroism and depicting war as a rite of passage from childhood to adulthood. through the evolution of these social scripts, violence has become a means of asserting masculinity (haider, 2016, 557). furthermore, haider maintains that masculinity is constantly defined in relation to femininity within the patriarchal matrix, and toxic masculinities exaggerate this binary (2016, 557). this dichotomy depicts the feminine as weak (subordinate) and the male as powerful (dominant) (jones et al., 2020, 1905). this is a socially detrimental manifestation of masculinity –“toxic masculinity”– with especially negative effects on social movement learning, which includes connecting, giving account, and transforming individual tales into collective political action (simes, amaral, & santos, 2021, 172). toxic masculinity is described this way to emphasise both its violent characteristics and negative outcomes. in fact, it comprises the precise components of hegemonic masculinity “that nurture others' dominance “(kupers, 2005, p. 717). toxic masculinity is characterised by extreme competition and greed, insensitivity to or disregard for the experiences and emotions of others, a strong need to dominate and control others, an inability to nurture, a fear of dependency, a willingness to resort to violence, and the stigmatisation and subjugation of women, gays, and men who exhibit feminine characteristics (kupers, 2005, 717). the term toxic masculinity is useful in discussions about gender and forms of masculinity because it delineates those aspects of hegemonic masculinity that are socially online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 6 destructive, such as misogyny, homophobia, greed, and violent domination; and those that are culturally accepted and valued (kupers, 2005). in the end, there is nothing particularly toxic about a man's pride in his ability to win sports games, keep friendships, perform at work, and provide for his family. these constructive activities are also facets of hegemonic masculinity, although they are scarcely harmful (kupers, 2005, 716). in other words, a man who believes he cannot get respect in any other manner has a strong need to dominate people (kupers, 2005, 717). domestic violence, harassment, genderbased rhetorical violence or sexual violence are a few concrete expressions of what can be perceived and labelled as toxic masculinity (simões, amaral & santos, 2021,172). toxic masculinity transforms violence into rage, but the latter dissolves difference, renders the individual into an unmarked body, and into a mere channel for ‘‘drives’’ and ‘‘impulses” (haider, 2016, 560). toxic masculinity is the outcome of glorifying these negative, hypermasculine characteristics to the point that they become the idealised and desired masculine identity. the key aspects of toxic masculinity identified from the literature that formed the deductive code frame for this study are homophobia, misogyny, violent domination, a willingness to resort to violence, the need to be dominant and controlling, not displaying or admitting weakness or dependence, and devaluing both women and feminine characteristics in men (jones et al., 2020, 1906). a network of websites and social media groups, known as the “manosphere”, clearly examine male viewpoints, wants, gripes, disappointments, and aspirations. typically, women and feminism are objects of antagonism whilst men's rights activism, which exposes stories of discrimination against men ranging from child custody to homelessness and conscription, is a prevalent topic of conversation in such venues (farell et al., 2019, 87). in recent years, the manosphere has emerged as a notable collection of “niche “communities, essentially united by a shared interest in masculinity and its apparent crises. communities like pick up artists (puas), men’s rights activists (mras), men going their own way (mgtow), and involuntary celibates (incels) have increased in size and participation in online harassment and real-world violence (horta ribeiro et al, 2021, 196). donald trump’s election as president in 2016 enabled these internet networks to be even more open on their worldview. as one manosphere thought leader stated, “his presence [in office] automatically legitimises masculine behaviours that were previously labelled sexist and misogynistic”. more concerning still, it has placed a few men who hold these views in positions of power close to the president (zuckerberg, 2018, 4). online misogyny manifests when sexism, misogyny, and toxic masculinity have repercussions in the digital realm. this phenomenon look to have new dimensions owing to technological potential. 2. how misogyny spreads online online misogyny refers to all acts of hatred against women that are committed, instigated, or aggravated, in part or in whole, through various digital environments oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 7 (internet, mobile phones, email, websites, social networking apps, instant messaging, virtual campuses, etc.) and that involve any type of direct or indirect psychological, professional, or physical harm (ging and siapera, 2018; rubio martin et al, 2021, 2). according to jane (2017, 51), online misogyny dates back as early as the 1990s, when feminist analyses emphasised a pessimistic attitude to resolving the processes through which the internet was perceived as a masculine technology and males continued to exert authority over women. the fundamental justification for this allegation is the internet's origins in the so-called military-industrial complex, since the advanced research projects agency network, the internet's predecessor, was first constructed by male engineers and scientists for military purposes. in addition, many feminists acknowledged that the internet has always been created and used under a patriarchal system, as men have traditionally controlled its technological development. feminist researchers claim that the internet is naturally imbued with masculine ethics and values and, therefore, is a patriarchal technology. there is sufficient empirical evidence of power inequalities online, particularly in terms of discourse and linguistic style, despite computer-mediated communication flourishing in the late 1990s and more women learning about the communicative practices through user-friendly online applications. the findings reveal that apologetic, polite, and communicative language patterns are characteristic of female discourse, whilst argumentative, forceful, and even harsh and aggressive language patterns are typical of male discourse. as a result, the growth of gendered cyberhatred today is best understood as a result of a mix of new technology, subcultural capital and appropriation, individual psychologies, mob dynamics, and, most significantly, systematic gender inequality (including a backlash against feminist gains and activism). never before have misogynists had so many opportunities to collectivise and harm women with so few repercussions. likewise, never before have so many potential victims been so conspicuous and so available (jane, 2017, 51). online misogyny is a contemporary phenomenon that dominates women's online interactions. online misogyny is only a kind of cyberhatred aimed at women because of their gender (baker, jurasz, 2019, 25). misogyny, “in short, has gone viral” (jane, 2017, 3). although online hate speech encompasses both gender and the online environment, it is insufficiently inclusive of the multiplicity of situations women face. drilling down into legal, legislative, constitutional, and ethical frameworks reveals a labyrinth of contradictions, conflicts, and grey areas: about what constitutes hurt or actionable violence as opposed to offence, and what actions may be done without compromising on freedom of speech (both that of alleged abusers and of women at the receiving end of abuse). it could be used a broader concept of misogyny, which may or may not involve violence but almost always involves some form of harm; either directly as psychological, professional, reputational, or in some cases physical harm; or indirectly in the sense that it online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 8 makes the internet a less equal, less safe, or less inclusive space for women and girls. this cultural, rather than legal, approach captures manifestations and effects of online abuse that extend beyond violence, such as the chilling, silencing, or self-censorship effects this phenomenon has on women, and enables us to consider manifestations of online misogyny in the broader political contexts of the online culture wars (ging, siapera, 2018, 516). other terms such as “online gender-based violence”, “online sexual harassment and violence” or “gender-based cyberhate”, which taken separately would only capture partial aspects of the problem (ging and siapera, 2018), may be included in the concept of “online misogyny”. often, these acts of hate in new digital media converge and feed back into acts of hate in traditional media, creating cases of online misogyny in mixed spaces (referred to as “hybrid realities”) (rubio martin et al, 2021, 2). jane (2017, 43) asks: “so, why are so many men calling so many women ugly, fat, and slutty on the internet? 1. because men continue to hold a disproportionate share of the political, economic, and social power, some using various forms of violence to keep women in their place; and 2. because – thanks to the design and dominant norms of the contemporary. cybersphere – they can.” more recently, an impressive array of twitter hashtags, such as #pussyriot, #yesallwomen, #slutwalk, #gamergate, #everydaysexism, #metoo, etc., has refocused public and scholarly attention on the pervasiveness of online misogynist culture (han, 2018, 4). this current research reveals that conventional gender norms can be regarded as a key factor accounting for the widespread phenomenon of misogyny in online environments (han, 2018, 4). it focuses on fundamentally organising society such that women are humiliated, diminished, and denied equal rights. in severe instances, it leads in unfriendly repercussions for women who transgress the standards connected with their position. most online misogyny stems from the assumption that society is undergoing a “drop of males “as a result of the rising presence of women in the labour market and in positions of sociopolitical power. the informal and varied group of men's rights activists who adhere to this worldview is known as the “manosphere “domestically. nonetheless, internet sexism extends beyond the manosphere. diverse repercussions of online misogyny are concealed by benign and benevolent sexism, loyalty to stated conventional values, and assumptions about social secure (kyleanne hunter, 2021, 59). the last two decades have seen a rise in radicalised violent organisations, hate groups, and other forms of misogyny on diverse social media platforms. easy access to technology has increased misogynistic radicalisation at a pace with which neither the security sector nor the law has kept up. the widespread recruitment that the virtual world has facilitated has moved misogyny into the information warfare domain. there is a lack of preparedness and coordination among government and private security agencies to mount an appropriate and proportionate response to this new threat. this protean threat is oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 9 evolving in two related “war zones” with shifting and ill-defined borders: cyberspace and the information space (kyleanne hunter, 2021, 61). contemporary misogyny is considered as a response to the diffusion of postfeminist sensibility into daily society. frequently, online misogyny takes the form of anonymous and hostile sexism (maccarthy, 2002, 365). anonymity, or more precisely, the perception of anonymity, is one of the most well-acknowledged elements that increase online animosity. it is believed to have a significant part in liberating individuals from adhering to societal norms and traditions, as they do not fear punishment or responsibility for their actions. the notion of anonymity produces inhibitionlessness closely linked to anonymity is an overall sense of de-individuation in the cybersphere, i.e. “a subjugation of the individual to the group and a concomitant reduction in self-focus” (khosravinik, 2018, 47-48). first, the recognition of women's precarity in the cybersphere as a result of its users' adherence to gendered social norms. second, an awareness that the subordination of women as precarious subjects in the cybersphere is largely achieved and maintained through harmful speech acts with a precise illocutionary and perlocutionary force aimed at annihilating certain groups, legitimising their discrimination, advocating violence and hatred, and causing changes in attitudes and behaviours (khosravinik, 2018, 53). when transferred into the cybersphere, gender-based discrimination creates a new, subtle type of digital gap, which has the potential to diminish the equality and inclusiveness of both online and offline cultures. only a feminist social critique of online misogyny would permit and be able to account for gender-based inequality, prejudice, and stereotyping in institutional, public, and media discourses as the substance of online misogyny (khosravinik, 2018, 57). 3. various forms of internet misogyny recent academic interest in online misogyny has seen the introduction of a variety of alternative terms for gendered online hostility, harassment, and abuse. examples include ‘technology violence’, ‘technology-facilitated sexual violence’, ‘gender trolling’ and – from the united nations (un) broadband commission – ‘cyber violence against women and girls’ or ‘cyber vawg’ (jane 2017, 7). this phenomenon is described using a variety of different terms, including gendered cyberhate, technology-facilitated violence, tech-related violence, online abuse, hate speech online, digital violence, networked harassment, cyberbullying, cyberharassment, online violence against women, and online misogyny (ging, siapera, 2018, 516). there are several names used to characterise gendered types of online harm, including ‘e-bile’, online sexual harassment and gendertrolling (mccarthy, 2002, 366). all of these relate to constellations of offensive behaviour on digital platforms that involve the purposeful imposition of severe emotional anguish, via online discourse, which is never an isolated occurrence but rather a consistent pattern of conduct (simões, amaral & santos, 2021, 172). problematic online behaviours include trolling, insults, sexual harassment and rape, and death threats, which are typically accompanied by racism, homophobia, ableism, and all other types of hate (mccarthy, 2002, 354-365). online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 10 it is not beneficial to establish a definitive definition of gendered cyberhatred. rather than doing yet another search for a set of objective message qualities, jane uses a casuistic approach by giving several examples of gendered cyberhatred. then, a notion of the phenomenon may be constructed by extrapolating from these particulars (jane 2017, 7). for situations involving social media abuse, but where the reprehensible behaviour falls short of the making of threats to kill, it is possible to argue that the activity may amount to stalking (baker jurasz, 2019, 56). it refers to material that targets girls or women, includes abuse, death threats, rape threats, and/or sexually violent language, and involves the internet, social media platforms, or communications technology such as mobile phones (though it may also have offline dimensions). jane (2017, 7) uses the slang term 'rapeglish' to describe the prevalence of sexual violence in much of this conversation. notably, in the context of social media abuse and online harassment, this includes: “contacting, or attempting to contact a person by any means.” on its own, this will fall short of the activity required to sustain a conviction for stalking. the behaviour complained of must also satisfy the requirements of harassment. in other words, trying simply to contact someone – for example, through twitter – is not enough. the law requires that the contact be harassing; targeted at an individual; calculated to cause alarm, or distress to the individual; and oppressive, and unreasonable (baker jurasz, 2019, 58). in addition, to secure a conviction, the conduct must occur at least twice. the courts have interpreted these requirements strictly so as to limit the breadth of potential convictions (baker jurasz, 2019, 63). online harassment is a nuanced and complex concept as it varies in expression and severity. however, in recent years, research has begun to address online harassment from a gendered perspective, raising awareness of the often-gendered nature of the abuse and how women are disproportionately targeted (jones et al., 2020, 1907). online sexual harassment refers to any form of unwanted sexual advance that occurs in digital spaces, such as social media, online chat rooms, or email. this can include unwanted sexual advances, comments, or messages, and the sharing of express images or videos without consent. online sexual harassment can take many forms, such as cyberstalking, trolling, sextortion, and revenge porn. it can also occur across various online platforms, such as dating apps, gaming communities, and social media platforms. online sexual harassment can have significant negative impacts on the victim's mental and emotional well-being, and it is a serious violation of their privacy and safety. many countries have laws that criminalise online sexual harassment2 and victims are encouraged to report such behaviour to the relevant authorities or seek support from organisations that specialise in addressing online harassment. many of those who have experienced online abuse have received abusive messages containing threats. in the most serious cases in this area, the threats made include threats 2 in the united kingdom, the malicious communications act 1988 and the communications act 2003 have been used to prosecute cases of online harassment, including sexual harassment. in south africa, he protection from harassment act (2011) applies to harassment victims in south africa and could include online sexual harassment. oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 11 to rape, physically assault, or kill, or any combination of all three (baker jurasz, 2019, 47). gender harassment consists of unwanted verbal and visual insults based on a person's gender, or the use of stimuli known or intended to evoke unpleasant feelings. these include publishing pornographic images in public or in areas where they want to offend, uttering chauvinistic jokes, and making gender-based derogatory comments (barak, 2005, 78). similar to verbal gender harassment, visual harassment may be both active and passive. active graphic gender harassment consists primarily of the intentional sending of erotic and pornographic still images or digital videos through individual online communication channels, such as email, or posting them online. the majority of examples of passive graphic gender harassment are images and videos posted on websites. in contrast to materials published in authorised pornography sites or online sex stores, where surfers often choose to visit and know what to expect, sexual harassment applies when web users do not know in advance and have no previous indication of what they may later find offensive. this sort of gender harassment is pervasive due to the widespread usage of forced pop-up windows and redirected connections to pornographic sites (barak, 2005, 79). unwanted sexual attention refers to unsolicited advances that expressly communicate sexual desires or intension toward another individual. this category includes overt behaviours and comments, such as staring at a woman’s breasts or making verbal statements that expressor impliedly suggest or insinuate sexual activities. sexual coercion involves putting physical or psychological pressure on a person to elicit sexual cooperation. this category includes actual, undesired physical touching, offers of a bribe for sexual favours, or making threats to receive sexual cooperation (barak, 2005, 78). tracing a person's virtual tracks by monitoring their visits to chat rooms and forums might induce anxiety. therefore, if online stalking (also known as cyberstalking) incorporates sexual insinuations and suggestions, it should be regarded a type of psychological pressure to attain sexual benefits, or a form of sexual coercion (barak, 2005, 80). the non-consenting publication of sexually graphic photos, generally obtained from a previously consensual personal connection, is referred to as “revenge porn” (barak, 2005). victims of online sexual coercion often suffer great emotional distress and are at an increased risk of suicidality (moloney, love, 2018, 3-4) trolling is a common phrase used to describe anything from playground insults, nasty jokes, and intentional insensitivity to threats of assault, rape, and murder. trolling appears to be the deliberate act of luring others into useless circular discussion, thereby interfering with the positive and productive exchange of ideas in a given environment (such as an online forum) and transforming the dialogue into one that is confusing, unsuccessful, and unproductive. this is often accomplished by making useless and provocative remarks with the sole intent of provoking an equally hostile response, relishing the ensuing discord and strife (khosravinik, 2018, 49-50). recent high-profile examples of gendertrolling include a website offering financial reward to anyone who could offer proof of the rape and/or murder of blogger melissa online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 12 mcewan. women speaking out about sexually inappropriate behaviour are frequently “punished”. after rebecca watson spoke out about sexism she experienced at an atheist conference, her youtube and wikipedia pages were vandalised and trolls posted graphic photos of dead bodies to her facebook page” (moloney, love,2017, 4). there is a modality of trolling, which is called “strategic trolling”, aims to silence feminist critics (rubio martin et al, 2021, 5). in early definitions, flaming was considered a generic statement of strong and provocative thoughts and expressing oneself more passionately on the internet than in other communication contexts “however, these basic descriptions do not seem to account for the phenomenon's aggressive, angry, and profanity-laced character. in actuality, flaming is often characterised by profanity, insults, bad affect, and 'typographic energy' such as capital letters and exclamation marks and involves cursing or otherwise objectionable words (khosravinik, 2018, 49). cyberbullying impacting children and adolescents has often been labelled as flaming or trolling. when speech has been coded using either of these concepts, it has, at least until recently, typically been classified as a mix of uncommon, innocuous, innovative, hilarious, crucial for identity formation, laudably transgressive, artistically rich, etc. both flaming and trolling are contentious and imprecise terms. the former is fairly archaic and often refers to only heated cybercommunications that include vitriol, insults, and bad affect, etc. trolling is sometimes used more openly to refer to the publishing of purposefully provocative or off-topic content with the intention of eliciting responses and emotional reactions in targeted (jane, 2017, 5-6). doxing is the practice of acquiring and leaking personally identifiable or sensitive information about an individual or group without that person's consent. this can include their home address, email and phone numbers, social security number, and other personal information. doxing is typically performed maliciously and can be used to irritate, upset, or intimidate the target. doxing is a common internet crime3, and websites, online forums, and social media are used to spread the word. many countries forbid the practice, and those who engage in it run the danger of harsh penalties like criminal prosecution and civil litigation. doxing can have serious, long-lasting effects on a person, including loss of privacy, monetary loss, and even bodily injury. 3 in the united states, while there isn't a specific federal law against doxing, existing laws such as the computer fraud and abuse act (cfaa) or various state-level laws regarding stalking, harassment, or invasion of privacy could potentially be applied to doxing cases. in the european union, under the general data protection regulation (gdpr), unauthorised sharing of personal data could potentially be deemed illegal, making doxing potentially punishable. individual eu countries may also have more specific laws. in the united kingdom, the data protection act, the malicious communications act, and the communications act can potentially be used to prosecute doxing. in canada, unauthorised sharing of personal information can potentially be seen as a breach of the personal information protection and electronic documents act (pipeda), and certain cases could also fall under criminal code provisions related to harassment, intimidation, identity theft, or identity fraud. oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 13 impersonation is the act of pretending to be someone else with a view to mislead or deceive another. this may involve adopting a false identity when interacting with people online or impersonating someone else without their consent. it can have disastrous effects when impersonation is used to perform fraudulent activities like identity theft or financial fraud. often unlawful, impersonation can result in both criminal and civil legal action. impersonation is possible in many contexts, including social media, email, online chat rooms, and other digital platforms. when interacting with strangers online, it is important to use caution and be vigilant for any signs of fraud or impersonation. underlying this conflict is the fact that social systems are, in general, constructed around generally stable patterns in which laws, conventions, beliefs, and practices are set by the dominant group of males, so making patriarchy a very major social order. in other words, because of its masculinist and militaristic beginnings, the internet might become a new source of women's oppression and will reaffirm real-world power hierarchies (han, 2018, 5). 4. �gamergate: sexist stereotypes' dominance in the video game industry stereotypes frequently found in video games have been related to one recent instance of misogyny. the videogame industry still produces material that caters to the alleged tastes of a young, male, heterosexual audience. both the dearth of female video game characters and the hypersexualisation of those that do exist are indications of these biases. however, large-scale surveys that consistently reveal that at least 40% of video game players are female refute the assertion that women make up a tiny minority of gamers (paaßen et al, 2017, 421-422). the male gamer stereotype also informs the perceived audience for game developers, leading to game content and marketing that panders to a clichéd young male audience, most notably with violent game play and hyper-sexualised depictions of female characters (paaßen et al, 2017, 429). such symbolic border construction confines genderbased symbolic/social identities in addition to containing and separating the realm of play from its actual social setting (dowling et al, 2020, 988). the idea that gamers are often unpleasant, unattractive, idle, and asocial has already been weakened by the prevalence of video game playing (paaßen et al, 2017, 430). stereotypes about the ways in which men and women play video games could help to explain this seeming inconsistency. women play video games, but are not seen as true gamers. this is apparently due to the fact that women only play informally and on “inferior platforms, “playing “inferior games “like candy crush saga or farmville (paaßen et al, 2017, 422). there are female-only leagues in e-sports, but they have not yet attracted a following comparable to that of competitions that are nearly exclusively male. femaleonly competitions may increase the visibility of female athletes, but may also reinforce the notion that women and men have different “innate “skill sets, similar to the widespread online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 14 belief that women and men have different upper-body strengths in physical sports where female-only leagues are common. therefore, gendered gaming stereotypes may be reinforced rather than challenged by female-only leagues (paaßen et al, 2017, 430). feministfrequency.com founder and executive director, anita sarkeesian, created the well-liked video series “tropes vs women in video games, “in which she explores the misogynistic representations in video games utilising feminist, sociological, psychological, and historical analyses. unfortunately, in reaction to these well-reasoned comments, sarkeesian was subjected to severe harassment and abuse. threats of murder, rape, bombing, and a mass shooting were among the abuse that was experienced (burgess et al, 2017, 2). for instance, a canadian blogger made a game in which players can strike anita sarkeesian, the brains behind the well-known website: “feminist frequency: conversations with pop culture, “and inflict facial injuries. the game was created in response to news of her kickstarter campaign, in which she suggested looking into historical representations of women in videogames. the game was just the most recent of many attacks on sarkeesian related to her project, including death threats, having her wikipedia page hacked with obscene images, and being harassed regularly on the kickstarter website and elsewhere (consalvo, 2012, 1). gamers' social definitions are deliberately intended to be depoliticised through the use of masculinist gaming identity. one tweet, for instance, included a link to a subreddit page that explained why anita sarkeesian was ruining the gaming community and why politics should not be included in video games. as a result, the magic circle is painted as being apolitical, and those who embrace it are painted as the community's natural opponents who pose a threat to sarkeesian and her sympathisers (dowling et al, 2020, 988). although the personal and usually violent character of these comments is viewed incidental to a discussion of journalistic ethics by many who view gamergate as sexism in gaming, gamergate is frequently represented as being about ethics in journalism (burgess et al, 2017, 2). the magic circle, which is a depoliticised space for male gamers, has been invaded by feminist gamers and developers who have brought attention to gender inequality in traditional gaming structures. this poses a threat to the hegemony of a subculture that limits the appeal and acceptance of women, both in terms of community membership and game representation, for example, roles limited to non-player characters or victims in need of rescue (dowling et al, 2020, 988). supporters of gamergate launched their public campaign against corruption in game journalism in 2014. however, their online comments on the #gamergate twitter hashtag indicates a hotbed of misogynistic opposition to progressive feminist game makers and players. the hashtag campaign was intended “to perpetrate misogynistic insults by wrapping them in a debate about ethics in game journalism “according to a number of academic and journalistic studies” (dowling et al, 2020, 983). nevertheless, some game development houses have taken a stand against the sexist attitudes of some oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 15 players while others have been slower to understand issues such as heteronormativity’s persistent presence in online game space (consalvo, 2012, 1). 5. how the law can be used to fight against online misogyny misogyny is an aggressive form of sexism, which implies an ideological element. both a practical element—the precise implied actions—and a hierarchical element— the subordination of women—are also present.4 misogyny is a phenomenon with many dimensions and can occasionally be vague and ambiguous. the many connected actions frequently have varied legal implications. therefore, sometimes a solid education in human rights is the answer, but in other cases, legal action will be necessary. there are a number of situations where legal action is necessary to fight against online misogyny. these are listed below: a) express crimes online misogyny can involve behaviours contrary to the criminal law. most states consider these acts, including as harassment, libel, threats of violence, hate speech, and the non-consensual distribution of private photographs or data, to be crimes. here, the emphasis is on the connection between misogyny and hate speech motivated by gender. hate speech is expression that is characteristically hostile, and that tends to do certain things, like silence, disparage, vilify, degrade, and so forth (richardson-self, 2017, 260). a critical approach to online misogyny relies on feminist studies to recognise misogyny as a type of hate speech in a comprehensive and systematic manner (khosravinik, 2018, 53). historically, at the international level, hate speech was linked to motivations based on race or religion. nonetheless, the european commission against racism and intolerance's general policy recommendation no. 15 on combating hate speech covers gender-based hate speech, since it states: “(...) the use of one or more particular forms of expression – namely, the advocacy, promotion or incitement of the denigration, hatred or vilification of a person or group of persons, as well any harassment, insult, negative stereotyping, stigmatisation or threat of such person or persons and any justification of all these forms of expression – that is based on a nonexhaustive list of personal characteristics or status that includes “race”, colour, language, religion or belief, nationality or national or ethnic origin, and descent, age, disability, sex, gender, gender identity and sexual orientation5” (european commission against racism and intolerance, 2015, 16). 4 to analyse many manifestations of hate and hate speech, i created this methodology based on three elements (ideological, hierarchical, and practical). see pérez de la fuente (2023). 5 author emphasis. online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 16 it is particularly interesting that section 510 of the spanish criminal code (código penal), as amended in 2015, contains gender-based hate speech: “those who, either directly or indirectly, foster, promote or incite hatred, hostility, discrimination or violence against a group, or part of such, or against a certain person for belonging to such a group, for reasons of racism, antisemitism or for other reasons related to ideology, religion or beliefs, family circumstances, the fact that the members belong to an ethnicity, race or nation, national origin, gender, sexual orientation or identity, or due to gender, illness or disability6” (spanish law 10/1995, 23 november, section 510(a)).7 in a european context, inciting hatred through gender-based hate speech is prohibited. determining whether the complex phenomenon of misogyny can be reduced to gender hate speech is the task for jurists because it is the first in a broader concept. it is noteworthy that grevio general recommendation no. 1 on the digital dimension of violence against women, adopted by the council of europe on 20 october 2021, analyses the obligations under the istanbul convention in relation to violence against women and domestic violence in its digital dimension. in particular, it states: “33. the digital dimension of violence against women encompasses a wide range of behaviour that falls under the definition of violence against women set out in article 3a of the istanbul convention. this definition comprises “all acts of genderbased violence against women that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. nonconsensual image or video sharing, coercion and threats, including rape threats, sexualised bullying and other forms of intimidation, online sexual harassment, impersonation, online stalking or stalking via the internet of things and psychological abuse and economic harm perpetrated via digital means against women and girls all come under the above definition” (council of europe, 2021, 17). 6 author emphasis. 7 section 510(b) of the spanish criminal code also establishes: “a custodial sentence of one to four years and a fine of six to twelve months will be imposed on: (…) b) those who produce, prepare, or possess with a view to distribute, grant third-party access to, proceed to distribute or sell, be it in writing or any other class of material or format that, due to its format, makes it possible to foster, promote, or incite, be it directly or indirectly, hatred, hostility, discrimination or violence against a group, part of a group, or against an identifiable person for belonging to that group, due to racism, antisemitism, antigypsy, or other reasons relating to ideology, religion, beliefs, family situation, ethnicity, race or creed, origin, sex, sexual orientation or identity, or due to their gender, social means, illness or disability.” oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 17 this recommendation includes these behaviours under the label of online sexual harassment: (i) non-consensual image or video sharing; (ii) non-consensual taking, producing or procuring of intimate images or videos; (iii) exploitation, coercion and threats (iv) sexualised bullying: and (v) cyberflashing. specifically, this recommendation affirms: “(a) non-consensual sharing of nude or sexual images (photos or videos) of a person or threats thereof include acts of image-based sexual abuse (also known as “revenge pornography”); (b) non-consensual taking, producing or procuring of intimate images or videos include acts of “upskirting” and taking “creepshots” as well as producing digitally altered imagery in which a person’s face or body is superimposed or “stitched into” a pornographic photo or video, known as “fake pornography” (such as “deepfakes”, when synthetic images are created using artificial intelligence); (c) exploitation, coercion and threats coming within the remit of article 40 of the convention include forms of violence such as forced sexting, sexual extortion, rape threats, sexualised/gendered doxing, impersonation and outing; (d) sexualised bullying constitutes behaviours such as circulating gossip or rumours about a victim’s alleged sexual behaviour, posting sexualised comments under the victim’s posts or photos, impersonating a victim and sharing sexual content or sexually harassing others, thus impacting their reputation and/or livelihood, or “outing” someone without their consent with the purpose of scaring, threatening and body shaming; and (e) cyberflashing consists of sending unsolicited sexual images via dating or messaging applications, texts, or using airdrop or bluetooth technologies” (council of europe, 2021, 18-19). the legal landscape is evolving, but the challenge for jurists remains: to determine whether the multifaceted phenomenon of online misogyny can be adequately addressed as gender-based hate speech. the council of europe's recommendations provide a robust framework for understanding and combating digital violence against women, but the onus is on individual states to enact and enforce laws that align with these international standards. while the law is a critical tool, it must be supplemented by educational and societal activities that combat gender stereotypes and encourage digital literacy. as the digital era advances, the social need to prevent online sexism becomes more essential. it is not only a legal or technological difficulty, but also a human rights obligation that requires joint effort from all sectors of society. b) breaching the platforms policies based on the platform policies, the second sort of legal action to stop online misogyny is taken. the benefit of this strategy is a kind of self-regulation. on the 31 may online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 18 2016, the european union commission presented with facebook, microsoft, twitter and youtube (“the it companies”) a “code of conduct on countering illegal hate speech online”. the main commitments are: “a) the it companies to have in place clear and effective processes to review notifications regarding illegal hate speech on their services so they can remove or disable access to such content. the it companies to have in place rules or community guidelines clarifying that they prohibit the promotion of incitement to violence and hateful conduct. b) upon receipt of a valid removal notification, the it companies to review such requests against their rules and community guidelines and, where necessary, national laws transposing the framework decision 2008/913/ jha, with dedicated teams reviewing requests. c) the it companies to review the majority of valid notifications for removal of illegal hate speech in less than 24 hours and remove or disable access to such content, if necessary” (european union, code of conduct on countering illegal hate speech online, 2016). this appears to be an efficient system that includes a complaint procedure, in which it companies demonstrate a commitment to refrain from posting hateful content online. however, it also leaves room for interpretive discretion and the possibility of controversial cases. while the criminal law provides a more conventional way, the self-regulatory approach of platform policies has a unique mix of benefits and difficulties. this selfregulatory technique is shown by the european union commission's “code of conduct on countering illegal hate speech online, “which was agreed upon by major it companies such as facebook, microsoft, twitter, and youtube. the code requires these platforms to have clear procedures for monitoring and eliminating unlawful hate speech, including sexist content, often within 24 hours of being notified. while this approach looks efficient at first glance, it also presents concerns around interpretative discretion and the possibility of contentious choices. the self-regulatory character of platform regulations enables a quicker reaction to developing forms of online sexism, but they may lack the rigour and accountability inherent in legal systems. given that these platforms have become de facto public squares where society standards are both reflected and shaped, this is very troubling. this approach looks efficient on the surface, but it raises problems regarding interpretative discretion and the possibility for contentious outcomes. the self-regulatory structure of platform regulations enables a quicker reaction to developing forms of online sexism, but may lack the rigour and accountability inherent in legal institutions. this is especially troubling considering that social media platforms have become de facto public squares where society norms are both reflected and shaped. oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 19 c) discrimination legislation the various anti-discrimination legislation at various levels should address issues related to online misogyny. employment and education regulations, for example, govern this issue. in relation to social media and advertising, internet and social networks, the recent spanish equal treatment and non-discrimination act provides: section 22(2): “the public administrations, within the scope of their respective competences, must promote self-regulation agreements for the media, advertising, internet, social networks and information and communication technology companies that facilitate compliance with equal treatment and non-discrimination and intolerance legislation for the grounds that form the basis of this act, and must promote a non-stereotyped image of the different persons and population groups, including sale and advertising activities that performed in them and encouraging language and messages contrary to discrimination and intolerance. they must also promote agreements with internet service companies and platforms to improve the effectiveness to prevent and eliminate content that violates the right to equality in this area”8. the fact that this equity and anti-discrimination framework acknowledged media stereotypes as a public concern and suggested certain preventative actions are pertinent here. anti-discrimination legislation often extends to employment and education sectors, offer another layer of protection against gender-based discrimination online. the recent spanish equal treatment and non-discrimination act is particularly noteworthy for its comprehensive approach. section 22(2) of this statute not only mandates selfregulation agreements for media, advertising, and technology companies but also calls for the promotion of a non-stereotyped image of different persons and population groups. the inclusion of media stereotypes as a public concern in this legislative framework is significant. it acknowledges that the portrayal and treatment of women in digital spaces are not just individual acts of discrimination but are part of a larger systemic issue that perpetuates gender inequality. by promoting self-regulation and encouraging language and messages contrary to discrimination, the act aims to create a more inclusive and equitable digital environment. however, the effectiveness of such anti-discrimination legislation hinges on their implementation and the willingness of various sectors to comply. while such legislation provide a formal structure for combating online misogyny, they must be complemented by other measures, including criminal law and platform policies, to create a holistic approach to the issue. 8 author emphasis. online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 20 d) breaching human rights online misogyny and its effects should be recognised as something to avoid in human rights frameworks at all levels. equal human dignity is at the heart of human rights, and misogyny opposes this ideal. however, diverse approaches to internet governance, some focused more on freedom or some based more on enforcing human rights, can show divergences in how avoid misogyny in a specific case.9 the ii human rights plan of the spanish government of 2023 includes some measures to combat hate speech based on gender. specifically, it states: “monitoring and analysis of the evolution of hate speech on social networks, paying special attention to the migrant and lgtbi population, as well as the categories of racism, xenophobia, anti-semitism, islamophobia and antigypsyism, with the aim of improving the formulation of cohesive public policies, with a cross-cutting, gender-based approach, with universal scope and full respect for fundamental rights” (ii human rights plan, 2023, 104). grevio general recommendation on the digital dimension of violence against women of 2021, previously mentioned, recommends that states parties implement the following preventive measures: “(a) consider reviewing any relevant legislation in place and adopt new legislation where needed to prevent, provide protection from and prosecute the digital dimension of violence against women against the standards of the istanbul convention and other relevant standards, including the budapest convention; (b) undertake initiatives aiming to eradicate gender stereotypes, sexist attitudes and discrimination against women that play out online as much as offline, taking into account the council of europe committee of ministers’ recommendation cm/rec(2019)1 on preventing and combating sexism; (c) foster gender equality in society and support the empowerment and representation of women online by enhancing digital literacy and participation of all women and girls; (d) encourage all members of society, especially men and boys, to abandon harmful stereotypes of women and men and to adopt respectful and healthy behaviours in the digital sphere; (e) implement awareness-raising campaigns targeting women and men, girls and boys at different levels of society on different forms of violence against women perpetrated in the digital sphere as well as on the support services available to victims. the state parties should support the efforts of women’s organisations towards this end and recognise and make use of their expertise; 9 idea developed in (pérez de la fuente, 2023). oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 21 (f ) provide mandatory and continuous capacity building, education and training for all relevant professionals, including but not limited to lawenforcement professionals, criminal justice actors, members of the judiciary, health-care professionals, asylum officials, social service professionals and education professionals, to equip them with knowledge on digital expressions of violence against women, responding to women and girls as victims without causing secondary victimisation and re-traumatisation, and, where relevant, information on existing legal frameworks and international co-operation mechanisms relating to the digital dimension of violence against women as well as on the gathering and securing of electronic evidence; (g) promote the inclusion of digital literacy and online safety in formal curricula and at all levels of education. teaching materials made available in line with article 14 of the istanbul convention should enable learners to learn about equality between women and men, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships and violence against women, including in its digital dimension and should be accessible to persons with physical and/or intellectual disabilities; (h) incorporate digital manifestations of violence against women in any existing intervention programmes for perpetrators of violence, in particular in the context of intimate-partner violence; (i) encourage the ict sector and internet intermediaries, including social media platforms, to make an active effort to avoid gender bias in the design of smart products, mobile phone applications and video games, as well as the development of artificial intelligence and -respectivelyto create internal monitoring mechanisms towards ensuring the inclusion of victim-centric perspectives as well as to advocate stronger awareness of the perspective and experiences of female users, in particular those exposed to or at risk of intersecting forms of discrimination. internet intermediaries as well as technology companies should be incentivised to co-operate with ngos working on violence against women in their awareness-raising and other efforts; and (j) encourage media organisations and journalists’ unions to take concrete steps to eradicate gender-based discrimination, victim-blaming attitudes and violations of the privacy of victims of gender-based violence against women and their children in all their journalistic activities. further efforts should be undertaken to uproot male-dominated power dynamics in media landscapes” (council of europe, 2021, 23-24). misogyny is inherently incompatible with the notion of equal human dignity, a pillar of human rights. however, the administration of the internet provides a dynamic environment in which the focus might shift between the protection of free speech and the enforcement of human rights, resulting in various methods to combatting sexism. adopted in 2021, the grevio general recommendation on the digital dimension of violence against women presents a comprehensive set of preventative measures that online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 22 adhere to international human rights norms. legislative reviews, the removal of gender stereotypes, and development of digital literacy and gender equality are among these efforts. importantly, the resolution also calls for the active participation of diverse sectors, such as ict and media, in removing gender prejudice and promoting victim-centric viewpoints. this human rights-based approach offers a holistic framework that goes beyond punitive measures. it calls for societal transformation, involving not just legal reforms but also educational initiatives, public awareness campaigns, and multi-sectoral cooperation. the recommendation recognises that online misogyny is not an isolated issue but part of a broader system of gender inequality and discrimination. e) specific online misogyny legislation to prevent misogyny online, individual states may decide to enact their own legislation. this generates two main issues. the first is that domestic legislation apply within the confines of national territory, whilst the internet is global. global problems cannot be solved by domestic law. the second is the debate over whether the law is usually the best preventative measure for the many behaviours associated with online misogyny. it is advised that academic research be done to define online misogyny and examine its effects on human beings because this may be an ideological issue. remarkably, the recommendation on preventing and combating sexism, approved by the committee of ministers of the council of europe on 27 march 2019, introduces the category of sexist hate speech and advocates its criminalisation. specifically, it states: “ii.b.1. implement legislative measures that define and criminalise incidents of sexist hate speech and are applicable to all media, as well as reporting procedures and appropriate sanctions. more proactive detecting and reporting procedures for sexist hate speech should also be encouraged in respect of all media, including the internet and new media. ii.b.2. establish and promote programmes (including software) for children, young people, parents and educators to assist in advising children on media literacy for a safe and critical use of digital media and appropriate digital behaviour. this should be done through school curricula and through the production of handbooks and factsheets on what constitutes sexist behaviour, unwanted sharing of material on the internet, and appropriate responses, including gender-sensitive information about online safety. ensure the wide dissemination of such materials. ii.b.3. develop information and campaigns to raise awareness about sexist misuse of social media, threats in the internet environment and the situations children and young people face (for example blackmail, requests for money or unwanted posting of intimate pictures) with practical assistance about how to prevent and respond to such situations. ii.b.4. undertake campaigns directed at the wider public on the dangers, opportunities, rights and responsibilities related to the use of new media” (council of europe, 2019, 18). oscar pérez de la fuente the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 23 the specific online misogyny legislation enacted by individual states offers a targeted approach, but it grapples with two main challenges. first, the inherently global nature of the internet limits the scope of domestic law. second, there is an ongoing debate about whether legal measures are the most effective preventative strategy for the myriad behaviours constituting online misogyny. these challenges underscore the need for academic research to define the contours of online misogyny and its human impact, especially given its ideological dimensions. the recommendation on preventing and combating sexism approved by the committee of ministers of the council of europe offers a noteworthy approach by introducing the category of sexist hate speech and advocating for its criminalisation. this recommendation goes beyond punitive measures to include educational programs, awareness campaigns, and public engagement, addressing the issue from multiple angles. the recommendation acknowledges that tackling online misogyny is not just a matter of law enforcement but also involves media literacy, public awareness, and behavioural change. it suggests a multi-pronged approach that combines legal sanctions with educational and awareness-raising initiatives, thereby offering a more holistic solution to the problem. increasingly, it is clear that tackling online sexism demands a multifaceted, human rights-based strategy. this essay contributes to the continuing conversation by analysing the possibilities and limits of existing legal frameworks, including specialised online misogyny legislation, so providing the basis for more comprehensive and effective remedies to this prevalent form of digital discrimination. 6. conclusions this paper serves as a seminal exploration into the multifaceted issue of online misogyny, a subject that has been largely overlooked in academic discourse outside of engineering and computer science. by dissecting the complex interplay between sexism, misogyny, and toxic masculinity, it is offered a comprehensive framework for understanding the various manifestations of online misogyny, from cyberbullying and hate speech to doxing and revenge porn. the gamergate controversy serves as a case study that underscores the urgency of addressing gender-based discrimination in digital spaces. while education and politics are essential components in mitigating online misogyny, the law remains a contentious yet indispensable tool for safeguarding human rights. the debate over the most effective means of combating online misogyny is far from settled, and this article emphasises the need for interdisciplinary research to clarify the concept and its societal implications. in line with the recommendations of the council of europe, which calls for member states to take comprehensive measures to combat gender-based discrimination, including online misogyny, our findings suggest that a multi-pronged approach is necessary. this involves not only legal reforms but also educational initiatives that challenge gender online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 24 stereotypes and promote digital literacy. tech companies must also be held accountable for creating and maintaining online environments that are free from harassment and discrimination. the council of europe also emphasises the importance of involving women in decision-making processes related to internet governance and digital policy. as our article highlights, the silencing or marginalisation of women's voices online is a significant aspect of online misogyny. therefore, any efforts to combat this issue must be inclusive and participatory, ensuring that women are not just beneficiaries of digital policies but active contributors to their formulation. the stakes are exceedingly high: online misogyny jeopardises the mental and emotional well-being of its targets and perpetuates broader systems of gender inequality and discrimination. as we move further into the digital age, the collective responsibility to address online misogyny becomes increasingly urgent. this article contributes a more informed discourse and, ultimately, looks to develop a more effective, human rights-based strategies to combat this pervasive form of digital discrimination. by elucidating the concept of online misogyny and aligning this discussion with the council of europe’s recommendations, it is hoped to provide both a theoretical and practical foundation for future research and policy interventions. the fight against online misogyny is not just a legal or technological challenge; it is a human rights imperative that demands concerted action from all sectors of society. funding this publication is included in the project trust: digital turn in europe: strengthening relational reliance through technology. marie skłodowska-curie – rise research and innovation staff exchange, grant agreement no.: 101007820. it is also part of the research project 'access to justice and vulnerability' pid2019108918gb-i00 r&d&i project funded by the ministry of science and innovation, within the framework of the state programmes for knowledge generation and scientific strengthening. acknowledgments i would like to thank mª̄ carmen barranco avilés, jorge zavala salgado, jesús mora, and juan carbajal for their insightful remarks. i would also want to thank the attendees of the iii jornadas “derecho y derechos” for their contributions to this paper's excellent 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(2018). not all dead white men. classics and misogyny in the digital age, harvard university press, cambridge, mass. regulations european union code of conduct on countering illegal hate speech online, 2016. general data protection regulation (gdpr). council of europe ecri general policy recommendation no. 15 on combating hate speech adopted on 8 december 21 strasbourg, 2015. recommendation cm/rec(2019)1 on preventing and combating sexism, adopted by the committee of ministers of the council of europe, 27 march 2019 grevio general recommendation no. 1 on the digital dimension of violence against women adopted on 20 october 2021. canada personal information protection and electronic documents act (pipeda), 2019 criminal code, 2023 south africa protection from harassment act, 2011 https://doi.org/10.22325/fes/res.2021.64 https://doi.org/10.22325/fes/res.2021.64 https://doi.org/10.25656/01:22501 online misogyny and the law: are human rights protected on the net? the age of human rights journal, 21 (december 2023), e8270 issn: 2340-9592 doi: 10.17561/tahrj.v21.8270 28 spain criminal code, lo 10/1995, 23 november. law 15/2022, of 12 july, integral for equal treatment and discrimination. ii human rights plan, spanish government, may 2023. united kingdom malicious communications act, 1988 communications ac, 2003 the data protection act, 2018 united states computer fraud and abuse act (cfaa), 2008 received: 30th june 2023 accepted: 9th october 2023 online misogyny and the law: are human rights protected on the net? abstract 1. sexism, misogyny, and toxic masculinity 2. how misogyny spreads online 3. various forms of internet misogyny 4. gamergate: sexist stereotypes' dominance in the video game industry 5. how the law can be used to fight against online misogyny a) express crimes b) breaching the platforms policies c) discrimination legislation d) breaching human rights e) specific online misogyny legislation 6. conclusions funding acknowledgments references regulations feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 221 feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary)* ana valero heredia** abstract: along with prostitution, and more recently surrogate motherhood, pornography has been a contentious issue within the feminist movement ever since the 1970s. perceived by abolitionists as the prelude to rape, for pro-sex feminists it represents an ideal vehicle for expressing desire for women and minority sexual identities, and has a considerable transformative capacity. the latter school of thought proposes a paradigm shift and has aligned itself with queer theory, which advocates a non-binary approach to sexual identities through post-porn. this study critically analyses the main arguments put forward by feminism in the field of pornography: women’s rights and the principle of no-harm. keywords: abolitionist feminism, pro-sex feminism, mainstream pornography, queer theory, post-porn. summary: 1. introduction: the debate about pornography within the feminist movement. 2. the abolitionist feminist argument: pornography “harms” all women. 2.1. the arguments by dworkin and mackinnon. 3. pro-sex feminism: if mainstream porn is sexist, let’s make better porn. 3.1. brief notes about queer theory. 4. feminist porn and post-porn. 5. conclusions. 1. introduction: the debate about pornography within the feminist movement arguably, from a legal point of view, feminism has never been very interested in studying the scope and limits of freedom of expression, compared with the attention it has paid to other issues of legal-constitutional relevance such as rights to equality, privacy or reproductive freedoms. a significant exception to this can be found in the fields of sexual “speech” and pornography. although sexual expression has always been present in art, it was not until the late 1970s that the production and distribution of pornographic films developed on a large scale. these were the times of “sexual liberation” and the so-called “golden age of porn” (1969-1984), and there is no doubt that films such as gerard damiano’s deep throat or the mitchell brothers’ behind the green door (1972) played a remarkable counter-cultural and therefore political role in their particular representation of explicit sex and female pleasure. *article published as part of the grant i+d+i (pid2019-107025rb-i00) sexed citizenship and nonbinary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. **associate professor (profesora titular) of constitutional law, universidad de castilla-la mancha, spain (anamaria.valero@uclm.es). feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 222 from the mid-1980s onwards, the emergence of video consolidated porn as a mass phenomenon and gave rise to a heated debate within the feminist movement which is still going on today (prada 2010: 7-26). it created a schism which has not yet been resolved and, if anything, has worsened in recent decades, since the mainstream pornographic dialogue has evolved to encompass increasingly degrading and violent narratives about women. this divide pits the irreconcilable positions of so-called abolitionist feminists against those who espouse a pro-sex or sex-positive approach. while for the former pornography is nothing more than the visual embodiment of patriarchy and violence against women, the latter see it as a potential vehicle for channeling the erotic expression of women and sexual minorities, and thus as a mechanism for their sexual liberation. this study offers a critical analysis of the arguments used by the two main feminist philosophies in relation to pornography: the rights of women and sexual minorities, and the no-harm principle. 2. the abolitionist feminist argument: pornography “harms” all women the feminist anti-pornography movement emerged during the second half of the 1970s with feminists such as catharine mackinnon, andrea dworkin, robin morgan, susan brownmiller, gloria steinem and kathleen barry, amongst others. mainly identifying with so-called “radical feminism”, they operated under an umbrella organisation known as women against pornography (wap), founded in the united states in 1979. radical feminism is a perspective within the broader feminist movement which argues that the root cause of social inequality is patriarchy, defined as the system of male oppression of women. it calls for a radical reordering of society in which male supremacy is eliminated in all social and economic contexts, whilst recognising that women’s experiences are also affected by other social divisions such as race, class and sexual orientation (álvarez, sánchez, beltrán, maquieira 2001: 22). in contrast to more conservative political points of view, which have always based their rejection of pornography on its intrinsic immorality, anti-pornography feminists frame the issue in terms of “harm to women”. from their perspective, there is nothing objectionable about the fact that sexual expression pursues and/or produces sexual arousal, or that it is offensive to communal morality: it is harmful because it is a potent mechanism for perpetuating sexism and violence against women through the stereotyping of bodies, the sexual objectification of women, and the androcentric construction of sex. furthermore, it plays a clear role in maintaining a socio-political system in which women are second-class citizens. the position of anti-porn feminism postulates a direct correlation between pornography consumption and the increase in violence against women, based on the ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 223 monkey see-monkey do thesis, according to which pornography inevitably engenders a violent and degrading attitude towards women. the essential premise of these authors is that “pornography is not representative but performative” (fernández gonzalo 2014: 25). this points directly to the socio-cultural functionality of porn, which acts as a guarantor of gender differences and a “hetero-patriarchal” and “hetero-normative” system. its role is therefore not to show a reality, but to construct and monetize it (calles hidalgo 2018). in her famous 1988 work the sexual contract, the british political theorist carole pateman offered a gendered interpretation of the rousseauian “social contract” theory, arguing that there is a sexual contract prior to the social contract, as a result of which the sexual rights of men supercede those of women. pateman analyses the principle of universal freedom, which supposedly forms the basis of the social contract, and questions precisely its universal character. she argues that it is only men who enjoy this freedom while women are deprived of it and are thus subject to male will. according to her, pornography is one of the instruments of perpetuation of this contract because it is a political practice of domination. pornography is the theory, she says, and men learn from it, putting it into practice in rape and other forms of aggression against women. in the same vein, in her book female sexual slavery, the american author kathleen barry, another renowned anti-pornography sociologist, developed the theory of “sexual slavery”, according to which pornography is the graphic description of what men demand from women, a political act of domination and subordination (1988: 174). between masters and slaves there can be no common ground for sexual play and pleasure. domination equals violence; violence equals sex. therefore, the most extreme consequence of pornography is rape. barry speaks of an “ideology of cultural sadism”, with pornography playing an important role in reinforcing practices which encourage and support sexual violence, thereby normalising it as an activity (1988: 215). the connection between pornography and rape was also examined by the american journalist susan brownmiller in her book against our will: men, women and rape. in it, she characterises rape not as an irrational or passionate act, but as an expression of power, which is essentially political in nature and is used to control women through fear and as a “weapon of war”. pornography could incite men to move from latent intimidation to actual aggression, and represents the pure essence of propaganda against women: “pornography, like rape, is a male invention, designed to dehumanize women, to reduce the female to an object of sexual access, not to free sensuality from moralistic or parental inhibition” (brownmiller 1975: 394). more recently, prada has argued that pornography shapes sexual behaviour and preferences to the extent that it can construct sexual reality and actual sexual desire by portraying male power over women, and thereby perpetuating this relationship. he suggests that “pornography offers female humiliation as a key element of arousal, exalting this model as desirable and turning the inequality between men and women into something sexually exciting” (2010: 11). feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 224 in spain, traditional feminist theorists such as valcárcel and de quirós, have also positioned themselves against pornography, characterising it as a representation which degrades women (1991). more recently the sociologist and abolitionist feminist theorist rosa cobo has argued that the core of the pornographic ethos lies in the fact that men understand sexual relations in terms violence, whereas women end up being the recipients of this aggression and accept it as if it were part of men’s sexual nature. she also emphasises the socialising role of pornography, equating it with advertising (2020). in short, feminist anti-pornographic theorists perceive pornography as inherently oppressive and degrading to women, and any form of use or representation of their bodies as objectification at the hands of male desire. 2.1. the arguments by dworkin and mackinnon undoubtedly, the two most prominent authors of anti-pornography feminism are the activist andrea dworkin and the lawyer catharine mackinnon. they are both indispensable references in the feminist debate on the prohibition of pornography. these authors go a step further than their fellow writers: if for example langton’s thesis is that pornography is a form of expression which represents or depicts the subordination of women, mackinnon and dworkin argue that pornography actually causes the subordination of women. dworkin, a radical feminist american writer and activist, believes that men are essentially violent beings, so their sexuality is bound to be violent too. in the existing patriarchal social order we live in they learn from childhood to dehumanise and objectify women through violence. in contrast, female sexuality is non-aggressive, sensitive and based on bonds of solidarity and mutual support. in pornography: men possessing women (1981), her key work on the subject, dworkin outlines the principles of power attributed to the male gender which perpetuate present-day sexual dynamics, chronically violating the dignity of women and thereby dehumanising them. men’s aggressive sexual tendencies form the basis for the imposition of power, perceived as an innate masculine characteristic, which justifies and indeed demands their dominance and leads to women’s submission. the phenomenon which demonstrates the male position of natural dominance par excellence is “coitus”, a form of possession in which the man inhabits or rather “conquers” the woman’s body through penetration. in the same vein, other radical feminists have argued that what men call sex is in fact a mixture, to varying degrees, of antagonism and violence, so there is no difference between mutually consensual intercourse and rape. from this perspective the two terms are synonymous (carter 1981). moreover, abolitionist feminists consider all sexual relations within a patriarchal society to be inevitably degrading to women and tantamount to sexual violence. as strossen points out (2005), ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 225 “the equivalence of all heterosexual relations and rape, which characterises feminist analyses against pornography, is exposed in particularly dramatic terms by dworkin in her book intercourse (1987, 13), where she affirms that the meaning expressed by sexual relations is that women are made psichologically inferior. dworkin wants to show that physical invasions of a woman’s body, a physiological essential aspect of heterosexual genital coitus, inevitably implies the same type of submission and loss of freedom that happens when a country’s armed forces invade and occupy another. the political meaning attached to sexual relations for women is the fundamental question for feminism and freedom: can an occupied people, a physically occupied and internally invaded people, be free?” it is evident that dworkin takes the idea of violence being a key aspect of male sexuality to its logical conclusion. in her rendition, it is not only the lack of consent which characterises rape, but every heterosexual relationship is a form of rape, even if the woman believes she is participating in it voluntarily, because her will is conditioned by the systemic oppression to which she has been subjected. as such, consent is only apparently voluntary. in this respect, the american activist also argues that for men there is an inseparable link between violence and sexuality, which finds its cultural expression in pornography, where a woman’s “no” is merely an excuse for them to force and abuse her (1981: 89). in this context, pornography is revealed as a portrayal of sexual politics, which by always reproducing the hierarchical roles of dominance and subordination is intrinsically a manifestation of gender inequality. consequently, pornography is not merely a metaphor, nor simply an expression; it is a form of sexual reality in itself. it not only represents women in the role of objects for male sexual use, it actually turns them into such objects. in the same vein, catherine mackinnon, an american legal scholar and radical feminist activist, argues that pornography is not an expression, but rather, an act of male supremacy (1993: 56). it is not simply something which represents the subordination of women but is the practice of subordination itself. “pornography is the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, servility or display; or (vi) women’s body parts including but not limited to vaginas, breasts, and buttocks-are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 226 are presented being penetrated by objects or animals; or (ix) women are presented in scenarios of degrada-tion, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual” (mackinnon and posner 1996: 71-72). her attack on pornography is “part of a larger project that attempts to account for gender inequality in the socially constructed relationship between power -the politicalon the one hand and knowledge of truth and reality the epistemological on the other” (1984: 325). unlike traditional conservatives, who base their rejection on questions of morality, she attempts to justify the regulation of pornography on the basis of her own unique interpretation of the no-harm principle. for her, as the title of one of her articles clearly states, pornography “is not a moral issue” (1984). as such, she tries to move the debate on pornography from a question of morality into the realm of sexual politics. mackinnon is right to point out that obscenity laws understand pornography as a sin rather than a crime. she adds that it is morality which motivates state intrusion into the issue of pornography. this concept of morality however, based on the distinction between “good” and “evil”, does not respond to the gender inequality which pornography produces, but merely prohibits what the male worldview considers immoral. according to the author, obscenity laws deal with morality from the point of view of male dominance, while the feminist critique of pornography is based on the harm it causes to women. thus, she asserts that pornography causes two forms of harm. the first is that which happens to women who directly participate in the making of pornography; the second is the result of the fact that the subjects of violence are in fact all women in society, who are harmed as a direct consequence of the distribution of pornographic material. but mackinnon also adds another reason to justify the legal prohibition of pornography, which is perhaps the most debatable of the three: pornography, she claims, actually “constructs” reality. in terms of her first point, mackinnon states that: “women are known to be brutally coerced into pornographic performances” (1984: 339). the experiences documented during the filming of deep throat is the most cited example. as is well known, the actress in the film, linda lovelace, whom mckinnon represented legally, published an autobiography, ordeal, in 1980, in which she spoke of beatings and coercion, and revealed that she had not received a single dollar from the profits of the film, going so far as to say that “when you see deep throat, you are watching me being raped” (1980: 47). actresses in porn films however are not the main focus of mackinnon’s analysis. the author is more deeply concerned with the second type of victim: literally each and every woman in society. mackinnon argues that all women suffer direct sexual subjugation as a result of the distribution of sexually explicit books and films. she supports this thesis by referencing different studies which indicate changes in men’s attitudes as a consequence of pornography consumption, leading to an increase in the intention ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 227 to assault and even rape women. thus, she criticises the fact that, unlike blackmail, bribery, conspiracy or sexual harassment, which in themselves constitute a crime, when it comes to pornography, the law limits itself to understanding such images as a mere “representation”, from which no causal relationship to harm inflicted on women can be established. from her perspective, the harm that pornography causes is a group harm, a harm to the collective of women, which it disempowers and dehumanizes. it defines them as subjects to be dominated, and as such, harms women, not one by one, but as members of the “group of women” as a whole (1995: 377). in relation to her third argument, for mackinnon, pornography becomes the truth about sex: “women bound, women battered, women tortured, women humiliated, women degraded and defiled, women killed” (1995: 138). pornography transforms the inequality between men and women into something sexually exciting and portrays female humiliation as a key aspect of arousal. it does not distinguish between eroticism and subordination of women, but makes them appear as one and the same thing. since everything which sexually excites men is considered to be sex, in pornography violence is sex, inequality is sex, humiliation is sex (1995: 384). as such, sexuality, and thus pornography as a representation of sexuality, is not only an area permeated by the gender structure, but is also the instrument through which gender is socially constructed. finally, the author maintains that the liberal argument for the protection of pornography in the private sphere, based on the grounds of free speech as established in the first amendment of the american constitution, actually protects men’s right to impose pornography on women in the private sphere (1995: 372). the implication is that men’s freedom of speech silences and censors women’s voices. to sum up, feminist abolitionist theory understands pornography as representing a form of sexual subordination and violence which is implicit in patriarchal ideology. both dworkin and mackinnon consider that apart from promoting a sexist interpretation of sexuality for women based on unthinking patriarchal ideology, pornographic material also justifies this through the myth of consent, according to which women would ask to be raped (mackinnon 1995: 249-250). as a result, in their efforts to stop the proliferation of misogynistic and violent images in the mass media, both authors unwittingly aligned themselves with the most conservative sectors of society, by calling for the prohibition of porn through legal means (malem seña 1992). as opposed to traditional conservatives, however, abolitionist feminists argue that their criticism of pornography is not moral but political in nature, since pornography is the source of violent and discriminatory attitudes and behaviour which define the treatment and social position of half the population. 3. pro-sex feminism: if mainstream porn is sexist, let’s make better porn as is well known, the rise of pornography as a mass cultural phenomenon at the end of the 1970s coincided with a period of political struggle and protest against pre-existing feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 228 sexual and gender models. in contrast to the abolitionist positions of more traditional feminism, the pro-sex feminist movement, also known as sex-positive, sex-radical or sexually liberal feminism, emerged in the united states in the early 1980s as a movement which fought for free sexuality as an essential component of women’s liberation and led to the formation of the feminist anti-censorship taskforce (fact). if the abolitionist women against pornography (wap) had associated itself with conservative forces to try to push through its initiatives, fact approached the issue differently, allying itself with groups of publishers, the media, artists and civil rights advocates, with a view to ensuring that abolitionist arguments did not become part of legislation. from their perspective, anti-pornography feminism is “hetero-normative” and “hetero-sexist”, because it treats heterosexuality as the normative standard by which all sexuality is judged. in contrast, pro-sex feminist activists understand pornography as an instrument which potentially has a significant transformative and empowering capacity for both women and minority sexual identities. in their view, the position of the anti-pornography movement has sought to reduce the question of female pleasure to the exclusive analysis of women as victims. as vance points out: “sexuality is simultaneously a domain of restriction, repression, and danger as well as a domain of exploration, pleasure, and agency. to focus only on pleasure and gratification ignores the patriarchal structure in which women act, yet to speak only of sexual violence and oppression ignores women’s experience with sexual agency and choice and unwittingly increases the sexual terror and despair in which women live” (vance 1982: 38). and, as lucía egaña explains in trincheras de carne. una visión localizada de las prácticas post-pornográficas en barcelona (2015, 86): “these tendencies find echoes in the reagan administration of the 1980s, and in fact complicate the status of pornography by considering it to be a rape in itself, rather than a consequence of a male-dominated system in which pornography is just one of thousands of representations with which it seeks to perpetuate itself. therefore, along with the outright renunciation of pornography, the abolitionist feminist perspective refutes the idea that female desire can be represented. at no point is there any question of appropriating the means of representation, but simply of censoring it”. just as they still do today, the pro-sex feminists of the 1980s argued for the right to experiment with porn to discover forbidden avenues for female sexuality, emphasising the need for a fundamental change of approach. gayle rubin, carol vance, alice echols and patrick califia were some of its main proponents (burstyn 1985), and they were joined by queer theorists such as june fernández, paul b. preciado and judith butler. in spain, as from 1983, anti-censorship feminism was embodied by authors such as ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 229 raquel osborne (1981), who denounced the new right’s appropriation of some of the approaches and initiatives of the anti-pornography movement, which had resulted in women as a whole losing some of the ground they had fought so hard for during many years of struggle. it is important to bear in mind that the so-called pornyes movement does not deny that mainstream pornography depicts sexual activities and gender roles in a sexist way, and that it ignores and devalues women’s experiences and desires. it believes, however, that this reality does not justify the rejection of pornography per se. in the words of rubin: “the sex industry is hardly a feminist utopia. it reflects the sexism that exists in the society as a whole. we need to analyse and oppose the manifestations of gender inequality specific to the sex industry. but this is not the same as attempting to wipe out commercial sex” (1989: 14). as porn actress and activist annie sprinkle famously commented, “the answer to bad porn is not to ban porn altogether, but to make better porn” so as to break down typical stereotypes and prejudices associated with both porn and the traditional view of sexuality itself. therefore, “the best way to fight the dominant, hetero-patriarchal, phallocentric model of pornography which subscribes to a binary concept of the body, is to create our own porn do it yourself: diy porn -” (salanova 2015: 215). as such, these authors propose constructing a theory of sexuality not simply focusing on danger and guilt, but also on pleasure. thus, for them, sexual liberation continues to be the key goal of the feminist movement, and they dispute the idea that pornography is the overriding cause of violence against women. 3.1. brief notes about queer theory the term “queer theory” was coined by teresa de lauretis in an article published in the summer of 1991 in the journal differences. it was entitled “queer theory: lesbian and gay sexualities”, and in it the author put forward the argument that gay and lesbian studies were in need of critical reflection in order to address the existing differences within the gay and feminist communities (ortega ruíz 2009: 42). in the interview by gallagher and wilson entitled “sex, power and the politics of identity” (1982), michel foucault says: “well, if identity is only a game, if it is only a procedure to have relations, social and sexual-pleasure relationships that create new friendships, it is useful. but if identity becomes the problem of sexual existence, and if people think that they have to “uncover” their “own identity,” and that their own identity has to become the law, the principle, the code of their existence; if the perennial question they ask is “does this thing conform to my identity?” then, i think, they will turn back to a kind of ethics very close to the old heterosexual virility. if we are asked to relate to the question of identity, it must be an identity to our unique selves. but the relationships we have to have feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 230 with ourselves are not ones of identity, rather, they must be relationships of differentiation, of creation, of innovation. to be the same is really boring. we must not exclude identity if people find their pleasure through this identity, but we must not think of this identity as an ethical universal rule”. one of the most influential feminists in the field of queer theory is judith butler, who together with other authors such as donna haraway and teresa de lauretis caused a serious epistemological upheaval on the notion of gender, sexuality and sexual diversity. butler questions the essence of identity categories and suggests that they are a culturally produced concept, both politically and theoretically. her main thesis is based on considering gender and identity in terms of performativity: she proposes the definition of gender as performance. in gender trouble, the author builds on foucault’s idea that there is no such thing as biological sex and recognizable gender, because bodies are a cultural construct; there is no such thing as “natural” sex, because approaches to sex are always mediated by culture and language. by arguing this she questions the whole system of sex/ gender (butler 1990). as such, gender is produced as a ritualised repetition of conventions which are socially imposed thanks to prescriptive and hegemonic heterosexuality (nazareno saxe 2015). it is in an attempt to break with the binary idea of gender that the new identities, known as “queer”, emerge, and they question the hetero-normative law of sexuality. these ideas have led to the countersexual manifesto, a groundbreaking ideological position which locates biological sex itself as the main instrument of domination, and therefore constrains the possibilities offered by gender subjectivities: “the sexual organ is not a precise biological site, nor is the practice of sex a natural drive. sex is a mechanism of hetero-social domination which reduces the body to erogenous zones according to an asymmetrical distribution of power between the genders (feminine/masculine), in which certain emotions coincide with certain organs and certain sensations with certain physical reactions”. (preciado 2011: 17). for her part de lauretis (1987: 1-165), defines the concept of gender as the social construct of women and men and the semiotic production of subjectivity. gender is shaped by history, practices and the interweaving of meaning and experience, that is, by the mutually constitutive semiotic interaction of the external world of social reality with the internal world of subjectivity. in general terms, queer theory proposes the need to de-naturalise gender, identity and even sex, as all social identities are equally anomalous, whilst at the same time rejecting the classification of individuals into universal categories such as “man”, “woman”, “homosexual”, or “heterosexual”, since these hide a huge number of cultural variations, none of which would be more fundamental or natural than another (herrera 2011). it considers, therefore, that diverse identities can be strategically adopted and should be ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 231 conceived as being changeable, under continuous construction, and without limitations. in short, the queer movement rejects standardisation and any notion of identity which is articulated in essentialist terms. proponents suggest that binary differences of gender or sex do not exist because there are a multitude of differences. 4. feminist porn and post-porn on this basis, the debate around pornography has gradually changed in recent decades. although the pornographic industry which advocates the patriarchal model of sexuality continues to be hegemonic –mainstream pornography–, other approaches to porn which go against the norm and offer alternative models such as “feminist porn” or “post-porn” are increasingly evident. the precedent for both can be found as long ago as 1984, when candida royalle founded femme productions, the first film production company which tried to create pornography from a “feminine” point of view, focusing on women’s pleasure, and paying more attention to the quality of scripts and production values (taormino et al 2016). this was the birth of so-called “porn for women”, the aim of which was twofold: first, to make female sexual desire visible and, second, to recognise a space for women as consumers of pornography. spanish filmmaker erika lust works in this genre. as head of the production company lust films, she is an advocate for, and producer of, pornography which aims to offer a dialogue based on non-violence and equality, where women also have a role as active consumers. according to lust: “pornography, like all artistic and cultural expression, has a discourse. in the case of pornography, this discourse can be approached from a feminist perspective. if women do not participate in the discourse of pornography as creators, porn will only express what men think about sex. we must participate to explain what we are like, what our sexuality is like and how we experience sex. if we only let men do it, we will always continue to be represented in porn as their male fantasy sees us: whores, lolitas, nymphomaniacs, etc.“it is necessary to be part of porn in order to create a space where all sexualities and gender identities are represented. (2008: 49). however, this model soon came to be criticised for perpetuating gender clichés. in the words of maría llopis, “the category ’porn for women’ has tended to be associated with softcore, tenderness and romanticism, reproducing sexist stereotypes which typify and restrict women’s sexuality” (2010: 72). or, as romina smiraglia says: “upholding the category of ’porn for women’ is problematic, because it inevitably reinforces – consciously or unconsciously – a stereotype of what should give women pleasure as opposed to men”. (2012:16). consequently, during the 1990s, new approaches began to appear which were more clearly detached from the conventional canons of the pornographic industry. it was with the turn of the century that these new voices made evident their identification with feminism and began to categorise their productions by using the term “feminist porn”. according to the theoretical conceptualisation of authors such as taormino, penley, shimizu and feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 232 miller-young, in their book porno feminista. las políticas de producir placer, a feminist pornographic artefact is one that “uses sexually-explicit images to question dominant representations of gender, sexuality, ethnicity, class, ability, age, body type and other markers of identity. it is a form of pornography which offers a true plurality of sexualities, and which translates into portraying a variety of bodies, desires, practices and sexual identities beyond those defined by hetero-normativity, homo-normativity, aesthetic norms and gendered sexual roles” (2016: 10). this genre creates alternative images and develops its own aesthetics and iconographies, incorporating elements of the genres that preceded it – porn for women, for couples or lesbian porn – and opening itself up to the possibility of rethinking and reformulating pornographic content through artistic and experimental creation. as such, feminist porn focuses on: challenging stereotypes about the way pornography is made and consumed, and the creators/consumers themselves; taking control of the production of pornography; making and promoting women’s pleasure-centred pornography; demystifying and de-stigmatising pornography for female consumers; and promoting sex positivity by emphasising the educational uses of pornography. moreover, as opposed to the ideal of beauty depicted in hegemonic pornography, feminist pornography depicts non-stereotypical female bodies of all ages, which are not only represented but also eroticised. its productions are also concerned with guaranteeing decent employment conditions for all workers by aiming to create a fair, safe, ethical and fully consensual working environment. in addition to “feminist porn”, alternative 21st century pornography also includes the “post-porn” genre, closely linked to the queer movement and the philosophical theory that underpins it. this approach has its roots in the french poststructuralist philosophy of foucault and derrida, and its subsequent adaptation to the north american context by authors such as butler and her revision of the concept of “performativity”. it could be said that post-pornography has emerged as a political and artistic movement which seeks to reappropriate the pornographic image so as to make visible other identities, bodies, practices and sexual pleasures, going beyond the male heterosexual spectrum which has historically dominated mass-consumption pornography. the term post-pornography is considered to have been coined by the photographer wink van kempen in the 1980s, who used the expression to refer to sexually explicit creations the aim of which is not masturbatory but parodic or critical (llopis 2010: 22). the term was adopted and popularised in 1989 by the former mainstream pornographic industry actress annie sprinkle, with her public cérvix announcement, a performance in which she invited spectators to look inside her vagina using a speculum and a torch, with the aim of parodying the myths and mystery which have surrounded women’s genitalia (romero baamonde 2019: 423). between 1989 and 1996 annie sprinkle developed her well-known work, post porn modernist, which presented her autobiographical evolution through multimedia performances, where she played with pornographic imagery ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 233 by mocking clichés and the traditional pornographic aesthetic itself, whilst trying to show how pornography could play a fundamental role in the reconfiguration of sex and sexuality. meanwhile, the writings of paul. b. preciado, itziar ziga, virginie despentes and maría llopis evoke the insurrection of bodies, the construction of alternative forms of pleasure and the reappropriation of the technologies of production of sexuality and bodily experimentation, whilst proposing an alternative way of constructing desire and pleasure. king kong theory, by french writer and filmmaker virginie despentes, published by ramdom house in 2007, is a significant point of reference for the post-porn movement. in it she states that: “in judeo-christian morality we have been told more than enough that it is better to be taken by force than to be taken for a slut. there is a feminine predisposition to masochism that does not come from our hormones, or the times of the cave-dwellers, but from a precise cultural system, and that has disturbing implications for the control we can take over our independence. being voluptuous and exciting is also detrimental: being attracted to what destroys us always keeps us away from power” (2007: 44). the art critic and independent curator marisol salanova, offers the following definition: “post-porn is an artistic movement which aims to generate a different pornography by using sexual imagery in which peripheral and dissident sexualities which are marginalised by hetero-normativity and classic porn have a place”. post-pornography involves a radical inversion of the subject of pleasure: it is now women and minorities who reappropriate the pornographic dialogue and demand other representations and other pleasures (2015: 51). for his part, paul b. preciado defines post-porn as “the effect of becoming a subject for those bodies and subjectivities that until now have only been contemptible objects of pornographic representation: women, sexual minorities, non-white or disabled bodies, transexuals, intersexuals and transgender people. in post-porn, those ignored by hegemonic porn or used to represent other people’s fantasies, often in a denigrating way, take the reins, filming or performing themselves to express their sexuality, and becoming protagonists with a script of their own choosing”. in spain, post-porn gained momentum at the beginning of the 21st century, a key moment being the 2008 congress entitled feminismo porno punk. it was organised by the aforementioned queer theorist paul b. preciado (formerly known as beatriz preciado), whose 2000 countersexual manifesto has been a key text for studies on postpornography, transgender and queerness, and for whom post-pornography is a political platform for sexual dissidence. a number of prominent international figures took part in the congress. these included the trans photographer del lagrace volcano, the filmmaker tristan taormino and sprinkle herself, all of whom attended alongside spanish artists and activists such as las post-op, and diana pornoterrorista, as well as maría llopis and águeda bañón, with their project girls who like porno. feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 234 the “performativity” which judith butler advocates is embodied in aspects of contemporary art in general, and post-pornographic art in particular. she explores the relationship between body and discourse and the idea of performance and repetition, which she defines as performativity, i.e, as the “reiterated action of materialization of sexed bodies”. she stresses that the presentation of gender through established behaviour, citation and reiteration, shows that bodies do not constitute the boundary of nature and culture as assumed by normative discourse, but that sexual difference is produced through the performativity of gender (1990: 57-58). in terms of perceiving the body as the central axis of performance theory and practice, artists such as marina abramovic, regina fiz, diana j. torres, valerie solanas, angélica lidell and catherine opie question sexual and gender categories by using their own bodies. the person carrying out the performance sees themselves as different from an actress/actor in that they speak, act and move in their own name, rather than embodying a character. they perform their own being as opposed to being an actress/actor who plays the role of another person. thus, post-pornographic expression makes use of methods such as performance – or action art–, video, photography, writing and drawing, in a stark exhibition of sexuality. in this way it punctures hegemonic sexual imagery and binary constructions of gender and sex, giving visibility to the exchange of roles, the eroticisation of different parts of the body, and identities and practices which are excluded from conventional and industrial flows of desire. in doing so, post-pornography disrupts what is traditionally considered beautiful, desirable and/or acceptable in a sexual context, just as postmodernism did in its day in the artistic context. moreover, it transgresses bodily, aesthetic and gender normativities. in preciado’s words: “post porn is not an aesthetic, but a collection of experimental productions which arise from movements supporting the political-visual empowerment of sexual minorities: the outcasts of the pharmaco-pornographic system (bodies working in the sex industry, whores and porn actors and actresses, nonconformist women from the heterosexual system, transgender bodies, lesbians, bodies with functional or psychic diversity...) thus demand the use of audiovisual devices for the portrayal of sexuality (2011: 37). the search for pleasure, control and possession of one’s own body, together with the obligation to reaffirm one’s own individual identity, become a weapon against a system which uses sex as an instrument of domination and alienation a weapon which is channelled and expressed through art and percieves bodies as political, as having a purpose: to demystify “moral issues which are strongly rooted in the mentalities of society (such as female sexual submission, the myth of virginity or masturbation)” (ferré baldrich 2018: 258). post-porn distorts traditional power relations and uses pornography both as an essential battlefield to make certain identities and sexualities visible, and as a political platform to fight against existing hegemonies. post-pornography therefore involves “the application of pro-sex feminism to the visual representation of non-normative sexualities” (moreno hernández and maribel domènech ibáñez 2010). ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 235 unlike mainstream porn, post-porn is both artistic and subversive, two essential values traditionally linked to sexually explicit discourse. this is especially relevant from a legal and constitutional perspective because, as well as featuring unquestionably artistic resources in its creations, post-porn has a clear political and countercultural objective: to question the hegemonic perspective of sexuality and sexual expression, and to vindicate the role of minorities. all the above returns explicit sexual discourse –“post pornographic”– to an area of creativity it should never have left, i.e. to the realm of freedom of artistic expression. 5. conclusions the confrontation between abolitionist feminists and so-called pro-sex feminists over the issue of pornography seems to be intensifying. yet a closer look at it reveals, in my opinion, that it lacks substantive arguments to support it. among the denunciations and demands of the former, it is common to find phrases such as: “this 8m, feminism has to focus on the barbarism of prostitution and pornography” (rosa cobo’s twitter account of 6 february 2022). such messages offer but simple reflections, which stem from the assumption that “porn is bad” per se, and fail to acknowledge complex issues such as the sexual trafficking of women, the non-consensual dissemination of sexually explicit material, prostitution and pornography in general, due to their lack of distinctions or nuances. as we have seen, we can divide pornography into two types: mainstream pornography, which represents sexuality from clearly sexist and misogynist narratives, in which violence against women is normalised and eroticised; and pornography which promotes gender equality, intimacy, diversity, express consent, safety, pleasure and free sexual exploration through representations made with ethical values. the opposition to mainstream pornography is not a position exclusive to abolitionists; quite the contrary. what happens is that pro-sex feminists reject abstentionism and prohibition, advocating instead for the active participation of women and new sexual and gender identities in the creation, representation and consumption of pornographic discourses which challenge stereotypes and question the use of sex as an instrument of domination and alienation. it is in this sense that, in my opinion, feminist confrontations around the issue of pornography are, in and of themselves, groundless. we need to move away from “proporn” or “anti-porn” arguments, as we need to move away from confrontations that are essentialising in nature. instead, we to enable a seroius public debate on gender identities that enables the process of gender equalisation. the whole question of pornography must be part of that debate. bibliografía álvarez, s., sánchez, c., beltrán, e. and maquieira, v. (eds.) (2001), feminismos, debates teóricos contemporáneos. madrid: alianza editorial. feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 236 barry, k. (1988), esclavitud sexual de la mujer (1st ed. 1979). barcelona: lasal. brownmiller, s. (1983), against our will. men, women and rape (1st ed. 1975). new york: open road integrated media. burstyn, v. (1985), women against censorship. new york: harpercollins. butler, j. (1990), gender trouble. feminism and the subversion of identity. new york: routledge. calles hidalgo, j. (2018), “la pornografía y el dominio de lo pornográfico en el ensayo español. (o qué sucede con la tensión entre las nociones de sexo y poder)”, pasavento, revista de estudios hispánicos, 6 (1), pp. 17-41. carter, a. (1981), la mujer sadiana. barcelona: edhasa. cobo, r. (2020), pornografía. el placer del poder. barcelona: ediciones b. de lauretis, t. (1987), technologies of gender, essays on theory, film and fiction. indiana: indiana university press. https://doi.org/10.1007/978-1-349-19737-8 despentes, v. (2007), teoría king kong. barcelona: pinguin ramdom house. dworkin, a. (1981), pornography: men possesing women. new york: putnam. dworkin, a. (1987), intercourse. new york: free press. egaña rojas, l. (2015), trincheras de carne. una visión localizada de las prácticas postpornográficas en barcelona. barcelona: universitat autònoma de barcelona. fernández gonzalo, j. (2014), pornograffiti. cuerpo y disidencia, madrid: libros de ítaca. ferré baldrich, m. (2018), el maig de les dones. el moviment feminista a catalunya durant la transició. tarragona: universitat rovira i virgili & arola editors. foucault, m. (1982), sex, power and the politics of identity. interview directed by b. gallagher and a. wilson in toronto (june). available at: https://artilleriainmanente. noblogs.org/?p=95 [accessed: 11 february 2022]. herrera, c. (2011), “el futuro es queer”, pikara magazine. available at: https://www. pikaramagazine.com/2011/04/coral-herrera-el-futuro-es-queer/ [accessed: 11 february 2022]. lovelace, l. (1980), ordeal. the truth behind deep throat. new york: citadel press. lust, e. 2008, porno para mujeres. barcelona: melusina. llopis, m. (2010), el post-porno era eso. barcelona: melusina. mackinnon, c. (1984), “not a moral issue”, yale law & policy review, 2 (2), pp. 321-345. mackinnon, c. (1993), only words. cambridge, mass: cambridge harvard university press. https://doi.org/10.1007/978-1-349-19737-8 https://artilleriainmanente.noblogs.org/?p=95 https://artilleriainmanente.noblogs.org/?p=95 https://www.pikaramagazine.com/2011/04/coral-herrera-el-futuro-es-queer https://www.pikaramagazine.com/2011/04/coral-herrera-el-futuro-es-queer ana valero heredia the age of human rights journal, 18 (june 2022) pp. 211-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 237 mackinnon, c. (1995), hacia una teoría feminista del estado. valencia: ediciones cátedra, universitat de valència, instituto de la mujer. mackinnon, c. (1996), “la pornografía no es un asunto moral”, in mackinnon, c. and posner r. derecho y pornografía (1st ed. 1987) bogotá: siglo del hombre editores. malem seña, j.f. (1992), “pornografía y feminismo radical”, doxa, 12, pp. 177-211. https://doi.org/10.14198/doxa1992.12.06 moreno hernández, e. and domènech ibáñez, m. (2010), cuerpos lesbianos en (la) red. de la representación de la sexualidad lesbiana a la post-pornografía. valencia: universitat politècnica de valencia. nazareno saxe, f. (2015), “la noción de performatividad en el pensamiento de judith butler: queerness, precariedad y sus proyecciones”, estudios avanzados, 24 (universidad de santiago de chile), pp. 1-15. ortega cruz, c. (2009), “aportaciones del pensamiento queer a una teoría de la transformación social”, cuadernos del ateneo, 26, pp. 42-56. osborne, r. (1981), “debates actuales en torno a la pornografía y a la prostitución”, heresies, revista de sociología, 12, pp. 97-107. https://doi.org/10.5565/rev/ papers/v30n0.1476 pateman, c. (2019), el contrato sexual, madrid: ménades editorial. prada, n. (2010), “¿qué decimos las feministas sobre la pornografía? los orígenes de un debate”, la manzana de la discordia, 5 (january-june), pp. 7-26. https://doi. org/10.25100/lmd.v5i1.1526 preciado, b. (2011), manifiesto contrasexual. barcelona: anagrama. romero baamonde m.e. (2019), “escena post-porno. desbordes disciplinarios en las prácticas artísticas post-pornográficas”, revista de estudios hispánicos, 7 (2), pp. 399-423. https://doi.org/10.37536/preh.2019.7.2.734 rubin, g. (1989), “reflexionando sobre el sexo: notas para una teoría radical de la sexualidad”, in vance, c. (comp.) placer y peligro, explorando la sexualidad femenina, madrid: talasa ediciones. salanova, m. (2015), orígenes de la iconografía bdsm en la estética post-porno, trabajo de fin de máster, valencia: universidad politécnica de valencia. smiraglia, r. (2012), “sexualidades de(s)generadas: algunos apuntes sobre el postporno”, imagofagia, revista de la asociación argentina de estudios de cine y audiovisual, 6, pp. 1-22. strossen, n. (2005), difesa della pornografia. le nuove tesi radicali del femminismo americano. roma: castelvecchi editore. taormino, t. et al. (2016), porno feminista, las políticas de producir placer. barcelona: melusina. https://doi.org/10.14198/doxa1992.12.06 https://doi.org/10.5565/rev/papers/v30n0.1476 https://doi.org/10.5565/rev/papers/v30n0.1476 https://doi.org/10.25100/lmd.v5i1.1526 https://doi.org/10.25100/lmd.v5i1.1526 https://doi.org/10.37536/preh.2019.7.2.734 feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non binary) the age of human rights journal, 18 (june 2022) pp. 221-238 issn: 2340-9592 doi: 10.17561/tahrj.v18.7025 238 valcárcel, a. and de quirós, b. (1991), sexo y filosofía: sobre “mujer” y “poder, añil feminista. castilla-la mancha: almud ediciones. vance, c. s. (1982), “towards a politics of sexualitys”, in alderfer h., jaker, b. and nelson, m. (eds.) diary of a conference on sexuality, glq: a journal of lesbian and gay studies, pp. 49-51. received: november, 11th 2021 accepted: february, 10th 2022 feminism and pornography: from mainstream pornography (hetero-patriarchal) to post-porn (non bina abstract 1. introduction: the debate about pornography within the feminist movement 2. the abolitionist feminist argument: pornography “harms” all women 2.1. the arguments by dworkin and mackinnon 3. pro-sex feminism: if mainstream porn is sexist, let’s make better porn 3.1. brief notes about queer theory 4. feminist porn and post-porn 5. conclusions bibliografía not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human right the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 1 not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights liliana ronconi1 never forget that a political, economical or religious crisis will be enough to cast doubt on women’s rights. these rights will never be vested. you’ll have to stay vigilant your whole life. simone de beauvoir abstract: there have been advances in latin america regarding the recognition of sexual and reproductive rights, especially in relation to disadvantaged groups such as women and lgbti persons. in this sense, it is relevant to mention the recognition by the inter-american system of the right to health as a true right. nevertheless, there are still many challenges to be faced. in this paper, i will review the progress and challenges of the inter american court of human right in sexual and reproductive health rights, looking to offer a panoramic overview from a global south perspective by analyzing specific cases. i will then highlight some achievements and setbacks in this area, focus on the impact of these cases in the region and criticize some of the court's limited responses. keywords: right to health, sexual right, reproductive right, inter-american court, impact, advances, challenges. introduction the last decade of the 20th century was marked by major achievements regarding the recognition of women and lgbti's human rights. in fact, some latin american states assumed different obligations with the ratification of the convention on the elimination of all forms of discrimination against women (cedaw) in the international arena, and the convention on the eradication of violence against women (the ‘belem do pará’), the american convention on human rights (hereinafter achr), and the protocol of san salvador in the regional arena, (o’connell, 2020; burgorguelarsen, 2017). in certain cases, the states adopted similar obligations even in their constitutional and legal system. however, beyond this recognition latin america continues to be the most unequal region in the world regarding wealth distribution (eclac, 2017; undp, 2021) has a relevant impact on the enjoyment of women and lgbti’s rights. they suffer structural discrimination, physical and psychological violence, as well as economic, institutional, and other ways of violence. for instance, women are criminalized for obstetric emergencies that end up in miscarriage and for accidents related to childcare. besides, as childcare is assumed 1 universidad santo tomás, chile (lronconi@santotomas.cl). mailto:lronconi@santotomas.cl not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 2 to be mainly their responsibility, in most cases they can only get jobs whose conditions are very bad.2 in addition, they can’t decide on their bodies3 and they are exposed to violent situations in different contexts such as schools, jobs, health care institutions and others. on the other hand lgbti people experience similar treatment. since homophobia is very much alive in the region, it is forbidden for them to express their identity or sexual orientation, so they are excluded from their families and the schools, sentenced to work as prostitutes with severe rights violations by the authorities.4 although sexual and reproductive rights are not specifically recognized in the achr, the inter-american system has protected women from sexual violence, especially when this violence is consummated in the context of internal armed conflicts or systematic persecution by state agents, thus producing important jurisprudential development.5 however, it does not account for all the violations of sexual and reproductive rights that women and lgbti people suffer daily in regular contexts. only recently6 has the interamerican court of human rights (hereinafter iacthr) given attention to them.7 it is important to highlight what these standards represent, especially in a context of advancing conservative policies in the region.8 as yamin (2008: 46) said “in human rights frameworks, health is a matter of justicea product of social relation as much as biological or behavioral factors”, so, it is necessary to emphasize that all violence against women and lgbti is a public health concern (cedaw, general recommendation #24).9 2 see, among others, iacthr, employees of the fireworks factory of santo antônio de jesus and their families v. brasil (2020). 3 for example, in many countries abortion is prohibited or forced sterilization is frequent. 4 about the situation of lgbti people in latin america, see encarnación (2016). furthermore, most of these women and lgbti people live in poverty and forced displacement, are migrants, afro-descendants, single mothers, heads of households and generally have access neither to education nor to the health system. thus, according to the iacohr they are in a situation of intersectional discrimination (crenshaw, 1991). 5 in this regard, see cases “penal castro castro vs. perú” (2006) “gonzález and others (campo algodonero) vs. méxico” (2009) “fernandez ortega vs. méxico” (2010); “rosendo cantú vs. méxico” (2010), among others. 6 abramovich, 2009. specifically, about women's rights see o´conell, 2019. on advances in the universal and european sphere v. nowicka, 2011. 7 the iacthr did not recognize has not recognized the direct violation of economic, social and cultural rights (escr) and especially of the right to health, until a few years ago. in this regard, see ferrer macgregor, e. (2020); ronconi/ barraco (2021), among others. although of course, many of the cases analyzed here imply the violation of other rights such as equality, private and family life, however, i am interested in focusing on the development of sexual and reproductive rights specifically as components of the right to health. i thank the reviewer reference for making a point on this comment. 8 this article was conceived by dictation of the supreme court of the united states of the case “dobbs v jackson women’s health organization” (june, 2022) in which the court held that the constitution of the united states does not confer a right to abortion. in addition, see press release “iachr calls for progress in the recognition and protection of reproductive rights in the region” january 31, 2023. available in https:// www.oas.org/en/iachr/jsform/?file=/en/iachr/media_center/preleases/2023/011.asp 9 about this point pou giménez (forthcoming) suggests that “before we had monism or strict binaries. now we have multiple subjects or instantiations of identity…multiple constitutive experiences… multiple ways of measuring gender advancement” (977) and for this reason she agrees with erdman and assis on the need for rewriting general recommendation #24 of the cedaw committee from the perspective of a “serialstructural subject”. liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 3 much progress has been made on the sexual and reproductive rights agenda by academics, activists, legislators and judicial operators and important lessons could also be drawn from successes and setbacks of other actors.10 nevertheless, in this paper i would like to talk specifically about the advance of the iacthr in sexual and reproductive health rights.11 this advances achieved are important because they are “steps forward” (in terms of abramovich and courtis, 2002) that cannot be left aside by the states but, on the contrary, must be respected specially by the “conventional control” (von bogdandy, et. al., 2017). this work provides a panoramic overview of the iacthr works12 from a global south perspective.13 i will highlight some achievements and setbacks in this area, focus on the impact of some cases where these issues have been debated and decided in the region and criticize some of the court's limited responses. this work is divided into two parts. first, (i) i will describe some iacthr resolutions regarding sexual rights identifying the critical points and the doors they opened to advance the sexual rights agenda in the region. secondly, (ii) i will analyze different sentences on reproductive rights, indicating advances and challenges they brought about. i will finally conclude that the iacthr has produced very important advances in the recognition of sexual and reproductive standards although this should be expanded especially when it comes to taking into account how the combined stereotypes such as gender, poverty, and others operate when denying or restricting these rights 1. sexual rights sexual rights ensure people’s control over their sexuality. the components of sexuality that should be protected are, at least sexual identity, sexual orientation, choice of partner and absence of coercive sexual activity.14 thus, non-heterosexual and nonprocreative sexual activity should be protected, since in fact there is no reason to link 10 legal activism (often based on social mobilizations) in latin america has been considered an example of concrete achievements (yamin, pichon riviere, bergallo, 2019; rodriguezgaravito, 2011); thus, it is important to see what has happened there so that it can be taken as an example elsewhere. 11 furthermore, some human rights organizations have referred to the scope and implications of sexual and reproductive rights in their sentences, decisions, and other relevant pronouncements. see, iachr (2019). this analysis is important as pou giménez (2023: 988) said “as latin american socio-legal scholars have stressed, constitutional rulings have not only instrumental and direct effects, but also a range of constitutive and indirect effects. such effects include placing in the public agenda topics that were previously not salient, promoting civil society action around certain topics, changing public perceptions, and dignifying and vindicating certain realities. by naming and stating normative principles at the highest level, judicial rulings are perceived to be in themselves partially transformative of reality. the language, the maximalist or minimalist style, the scope of the arguments and the shape of the remedies in the different human rights systems are traversed, in short, by strategic, normative and cultural understandings of law and society that comparative analysis should acknowledge”. 12 there are very good papers that critically analyze specifically some of the cases seen here; nevertheless, i believe the general view is important so as to observe how the court has developed the concept of sexual and reproductive health. on advances in the iachr see ramírez huaroto (2018) 13 on the importance of building an epistemological alternative to health from the global south see basile, 2022. 14 escr committee, go #22 (2016), parr. 5. not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 4 sexuality with reproduction. we can see advances in the position of icthr regarding sexual rights, especially in sexual orientation and gender identity. 1.1. sexual orientation the firm decision of the iacthr regarding the guarantee of sexual rights, especially sexual identity and orientation, can be clearly seen in some cases, the first of which was “atala riffo vs chile” (2012) where the court recognized that sexual orientation is a protected ground from discrimination, which was not explicitly recognized in the original wording of art 1.1 of the achr.15 on the basis of this argument, the chilean state was condemned for discrimination when it sentenced withdrawal of parental custody of three daughters from their mother who publicly manifested to be a lesbian. the court held that the chilean state could not prove a very important reason (strict scrutiny) for the withdrawal; thus, the decision had been based on prejudices and stereotypes regarding the bond resulting from a lesbian mother and her daughters. as coddou (2017) said “atala was a strong and activist judgment, which provides support for the broader role law can play in social and cultural change…in the same sense atala was an important and revolutionary case, supported by a successful legal and political activism that is very solid throughout the region” (2). this case shows three aspects which are relevant for sexual rights. one is the consideration of sexual orientation as a protected ground (clérico, aldao, ronconi, 2017). another is the recognition and protection under the achr of different kinds of families. the third is the court’s argument which claims that the grounds of sexual orientation are not restricted to the declaration of homosexuality; they also include the homosexuality forms of expression and its logical consequences in a person’s life project. another case is “duque vs. colombia” (2016) in which the iacthr condemned the colombian state for discrimination of ángel duque for not allowing him equal access to the survival pension after the death of his partner in 2001, because it was a same-sex couple; and yet another is the case “flor freire vs. ecuador” (2016) where the iacthr condemned the ecuador state for discrimination since mr. freire was fired from the army for his homosexual behavior.16 in both cases, the iacthr held that a person's sexual orientation is a protected ground according to the convention. consequently, no rule, decision or practice of domestic law, whether by state authorities or by individuals, may reduce or restrict, in any way, the rights of a person based on their sexual orientation, be it real or perceived, since this would be contrary to the provisions of art. 1.1 of the achr.17 these three cases were very important because they were the first approach of the iacthr to this topic. in fact, “it provides a foundation for a legally driven project of social and cultural change, which should be triggered and channeled by the state” (coddou, 2017: 13) by then, only a few states of the region started recognizing the right of lgbti people or even same-sex couples. both argentina and ciudad de méxico recognized same-sex 15 on the evolution of the icthr´interpretation of the equality clause, see serrano guzmán (2022). 16 mr. freire denied his homosexuality. in this regard, the court held that the important thing is to investigate whether the state act was linked to a discriminatory act based on sexual orientation (real or perceived). 17 the court upheld this argument again in the case ramírez escobar and others vs. guatemala (2018). liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 5 marriage in 2010 while in 2011 the supreme federal court of brazil ruled that same-sex couples could form “stable unions” and granted rights to unmarried de facto cohabitants. in 2016 the colombian constitutional court also ended years of uncertainty for same-sex couples and the rights of lgbti people by upholding the validity of same-sex marriage. this recognition of sexual orientation broke the heteronormative structures and although it could be seen as a civil right, it also has a direct impact on the right to health. firstly, because it forces medical practitioners and health care workers to take those who fall outside this norm seriously. and secondly because it recognizes that these couples can make decisions related to health, for example in an emergency or in cases linked to procreation. in addition, it implies the need to eliminate stereotypes regarding homosexuality.18 1.2. gender identity although the aforementioned were very relevant cases, the iacthr only recognized their normative side but did not identify the structural discrimination suffered by lgbti people. in fact these people were included in the health system but still pathologized. as litardo (2022) says this had very negative consequences such as: “1) limiting or denying a person's autonomy; 2) reinforcing and creating arbitrary limits between healthy or pathological ways of being through a gender point of view; 3) and making trans people’s lives depend on a diagnosis….thus, pathologizing gender identity is equivalent to violating not only comprehensive health but also freedom of choice and realization of sexual, mental or reproductive health”.19 this made lgbti people distance themselves from the health system, with all the risks that this implies. this aspect was taken into account in 2017 when the court received a request from costa rica for an advisory opinion on gender identity, equality and non-discrimination with regard to same-sex couples. in response to this, advisory opinión 24/17, the court identified some relevant points. first it defined gender identity as the internal and individual experience of gender the way each person feels it, which may or may not correspond to the sex assigned at birth. this includes the personal experience of the body as well as other expressions of gender, such as dress, speech and mannerisms. 18 in argentina, for example, the blood donation law prevented homosexual men from donating blood if they had had homosexual relations in the last 6 months. see, monti, n./ von opiela, c. (2013). 19 according to the independent expert on protection against violence and discrimination based on sexual orientation and gender identity (a/73/152) this includes rape and other sexual and gender-based violence, forced sterilization, so-called “conversion therapy” and surgery without consent; blatant discrimination and abuse at the hands of health systems and providers; increased risk of hiv/aids and other communicable diseases resulting from exclusionary prevention and education programs; denial of essential health services, including sexual and reproductive health and gender-affirming services; and increased incidence of severe mental health harms such as trauma-related depression, anxiety and suicidal ideation. on the different models of medicalization and self-determination in the word see jaramillo sierra, i./ carlson, l. (2021). https://www.ohchr.org/en/documents/thematic-reports/a73152-report-independent-expert-protection-against-violence-and not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 6 secondly, it held that sexual orientation, gender identity and gender expression are categories protected by article 1.1 of the convention; this implies that when the state uses one of these categories to make distinctions, the court considers that there is evidence that the state has acted arbitrarily. thus, the full respect for the rights of certain groups or persons identified by their real or perceived sexual orientation, gender identity or gender expression cannot be considered a valid argument to deny or restrict their human rights. third, the protection of people’s right to private life, including the capacity to develop their own personality and aspirations, determine their identity, and define their personal relationships. this concept encompasses aspects of social and physical identity, including the right to personal autonomy and personal development, and the right to have and develop relationships with other human beings and with the external world. another argument and one with structural relevance is that of the change of name, the rectification of the image and the rectification of the sex or gender in the public records and identity documents, so that they correspond to the self-perceived gender identity. consequently, states are obliged to recognize, regulate and establish the appropriate procedures which should comply with the following requirements established in this opinion: they should be based on the free and informed consent without involving requirements such as medical and/or psychological or other certifications such as evidence of surgery and/or hormonal therapy; they should be confidential and universally available and, insofar as possible, cost-free. on the other hand, different treatment between heterosexual couples and couples of the same sex regarding the way in which they can form a family does not pass the strict test of equality (clérico, aldao, ronconi, 2017), since article 17 achr protects the family ties that may derive from a relationship between persons of the same sex. thus, states must ensure access to all the legal institutions that exist in their domestic laws to guarantee the protection of all the rights of families composed of same-sex couples, without discrimination in relation to heterosexual families. to this aim, even states that face institutional difficulties to adapt the existing regulations should do so on a transitional basis, while promoting such reforms in good faith. after this advisory opinion, many states, such as costa rica,20 ecuador21 and chile22, approved same-sex marriage. other states, such as argentina, ecuador and chile approved norms to recognize gender identity.23 the recognition of rights between samesex couples and the right to sexual and gender identity are essential when it comes to access to the right to health. 20 in the case of costa rica this advisory opinion was fundamental. see, constitutional chamber of the supreme court of justice of the republic, (may, 26th. 2020). 21 constitutional court of ecuador, judgment 10-18-cn and judgment 11-18-cn (june, 2019). 22 law 21400 (december, 2021). 23 argentina (law 26.743-2012-); ecuador (ley orgánica de gestión de la identidad y datos civiles-2016-); colombia (t-063/15. derecho a la corrección del sexo en el registro civil y demás documentos de identidad de las personas trans); chile (ley 21120-2018-) liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 7 with these advances, both in the arguments of the court and in the recognition of rights in various countries of the region, in 2021 the court resolved the case “vicki hernandez vs. honduras”, condemning honduras for the death of vicky hernández, a trans woman, sex worker and human rights defender. besides, responsibility was attributed to the honduran state, as the participation of state agents in the events was proven. it was the first case in the international level in which a state was condemned for the death of a trans person applying a women's treaty. the court considered vicky was killed due to her gender identity and expression, thus going further with its standards on gender identity as a protected ground. in fact, it applied belém do pará convention, which claims that gender identity is a factor to be taken into account when analyzing the intersectional violence suffered by women. the court argued that “this violence is based on a system of patriarchal domination deeply-rooted in gender stereotypes and constitutes a manifestation of the historically unequal power relations between women and men. violence against persons based on gender identity or expression, and specifically against trans women, is also based on gender, as a social construct of the identities, attributes and roles that society assigns to women and men” (para. 128).24 with that the iacthr maintained that the duties of enhanced due diligence in the area of prevention, investigation, prosecution and punishment of serious acts of violence is also applicable with respect to trans women.25 thus, this case represents a great advance in the breakdown of binary recognition, placing the need for an evolutionary interpretation of rights at the center of the scene (alterio, 2022). thus, it is possible to see how the court advanced in the recognition of sexual rights, first focusing on the rights of same-sex couples but gradually expanding its scope to those regarding gender identity. likewise, in the last cases analyzed the court didn’t just invalidate discriminatory normative but rather established specific obligations for the states of the region to expand the enjoyment of rights for lgbti people,26 shifting the focus from pathologization to autonomy.27 that is a consequence of the evolution of the paradigm on gender equality law. as pou gimenez said “in the course of a couple of decades, equality law has gone from a paradigm of protection, to one of equal treatment, to one of inclusion, to one of structural transformation. the earlier paradigms do not fade away completely and retain a degree of influence, but it is the new ones that provide the core orientations” (2023: 979). the recognition of identity is very important in the health system. first because it promotes the elimination of violence against this group. secondly, 24 the dissenting opinion of judge elizabeth odio benito considered that the convention of belém do pará was not applicable in the case since its purpose is to protect biological women. in this way, the violations of the alleged rights had to be analyzed taking into account that hernández's aggressors committed these acts because they perceived him “as a trans person, and not because he was a woman”. 25 the court had upheld it regarding homicides and sexual crimes committed against women (“gonzález and others vs. mexico”, “véliz franco vs. guatemala”, “lópez soto vs. venezuela”) and lgbt people (“azul rojas marín vs. perú”). 26 recognition of trans people and other members of the lgbti community in the civil registration, as well as recognition of the rights of same-sex couples; guarantee participation of trans people and organizations dedicated to the protection of their rights in the design and execution of training measures for security forces; among others. 27 in this sense, escrc, general comment # 22. not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 8 it enables lgbti people to access the health system, without fear of being judged, which improves their health (taken a comprehensive health conception) and life conditions in general.28 it means adopting a social model that implies gender identity as neither a mental disorder, nor an individualistic or private issue but a social matter which involves the state as a provider to make your rights effective (litardo, 2022). subsequently, in advisory opinion no. 29 regarding the rights of individuals under conditions of detention, the court consolidated valuable standards related to health and sexual rights of lgbti people. it highlighted the limits of the binary prison paradigm, the need to respect gender identity and the need to hear the prisoner’s opinion regarding their accommodation in the prison, providing options depending on each case. the court held that “within the framework of medical care, it is the duty of states to ensure that, in no treatment or medical advice, sexual orientation and gender identity should be addressed as diseases” (para. 266). in addition, it emphasized that trans people in prison must be guaranteed access and continuity of the medical treatment they require, recognizing “any particular need based on their sexual orientation or gender identity, even with regard to reproductive health, and hormonal or other types of therapy, as well as sex reassignment treatments if they wished” (para. 270). despite these advances, there are still standards to be improved, such as those regarding prostitution or sexual work. in this sense, in the advisory opinion 27/21 the court already referred to “sex workers” (para. 182) but did not go further or open the debate on the implications of adopting one position (prohibitionist/abolitionist) or the other (regulationist).29 another important topic is the necessity for recognizing a third sex,30 guaranteeing access to technological progress, for example, in fertilization or interventions in the body.31 intersectionality is another important challenge the court should consider for example relating gender identity and childhood standards; since it does not mention anything regarding children’s access to health services without parental consent or other limitations to their rights. another example is the right to sexuality for people suffering hiv, as the court has elaborated standards regarding this disease32 but none is related to sexuality. in addition, the court should elaborate standards on the right to sexuality for people with disabilities, specifically regarding fully informed consent to medical procedures and treatment, among others. i will return to some of these ideas in the next section. 2. reproductive rights reproductive rights imply the recognition of the basic rights to decide if you want to have children, and if so the number and the interval between their births; to have the 28 a/hrc/50/27, 12 july 2018. 29 about this, see peter de marneffe (2009). 30 in this sense, different positions argue “that self-determination in sex leads to the deconstruction of sex” jaramillo, 2021, p. 23. 31 the question is, should the health system comprise these needs? if we take health rights seriously the answer is yes (ronconi, 2012). 32 gonzales lluy vs. ecuador (2015) and cuscul pivaral vs. guatemala (2018). liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 9 information and the means to do so; to get the highest standard of sexual and reproductive health, including the right to make reproductive decisions free from discrimination, coercion and violence. so, their recognition is very important, not only for women but also for other groups (men, trans, and others) although it is especially relevant in the life of women because society points them as almost exclusively responsible for reproductive matters. in this regard, the court consolidated some standards specially related to women’s reproductive rights such as when life begins and the role of reproductive technologies, informed consent and gender stereotypes in the context of women´s delivery, criminalization of obstetric emergencies and prohibition of obstetric violence. 2.1. the beginning of life and reproductive technologies in the judgment artavia murillo v. costa rica (2012), the iacthr ordered costa rica to invalidate a supreme court decision that prohibited in vitro fertilization (ivf) in order to legalize and regulate this practice. the iacthr held that “personal decisions” to have biological children through ivf were protected under the achr. although the court does not speak of reproductive freedom and women's rights specifically, the arguments provided are relevant considering the following aspects: the first and main argument it uses, applying various interpretive approaches, is that the human embryo is not a person and is therefore not protected by the right to life provision under the achr (art. 4.1). it argues that the words “in general” of art. 4.1 indicate that the protection of life is not absolute but gradual and incremental and exceptions to the general rule are allowed. thus, it was made clear that life protection increases gradually as the embryo develops. secondly, the court determines that banning ivf constitutes an interference in private life as it restricts autonomous decision-making related with personal reproductive health. specifically it recognizes that this prohibition has a discriminatory impact based on disability to procreate, gender and socioeconomic status (teles pires, 2017) since they don’t have access to practices assisting them to have children. in conclusion, the judgment ordered costa rica to legally authorize ivf creating a regulatory framework to support it, as well as subsidizing it through the social security system as a form of reparation. this case is very important in the region an its impact is still latent. on the one hand, because this was the first case where the court did recognize reproductive rights as human rights although included within the rights to privacy, family, liberty, and integrity.33 33 some time later, the court had to rule on a request for provisional measures regarding a salvadoran woman who had requested a therapeutic abortion since she was seriously ill and the fetus was anencephalic. it had been denied because abortion was penalized in her country. the court granted the provisional measures taking into account the woman’s serious state of health, the urgency, the risk of irreparable damage that continuing the pregnancy implied for her physical and mental health. iacohr, matter of b. regarding el salvador. provisional measures. order of the inter-american court of human rights of may 29, 2013. not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 10 on the other hand, since the court was conclusive when holding that the right to life is not absolute and embryos have only incremental protection which is relevant for the different countries of the region as when seaking progress for more permissive laws on abortion, the right to life appears as an insurmountable barrier (sutton and vacarezza, 2021). this argument has had a very strong impact when it comes to advancing norms for the decriminalization of abortion in the region.34 moreover this decision could have a very strong impact in the recognition of reproductive rights of lgbti people in the region, since through ivf techniques and other tools (reproductive technologies) possibilities are opened for gestating couples or people who cannot achieve conception naturally.35 thus, this represents an advance beyond the specific case that was claimed such as the right of lgbti people to benefit from scientific progress on reproductive techniques abandoning the binary logic that used to characterize it (lamm, 2019). finally, the court claimed that the state must also guarantee ivf through the public health system for reparation, which it is important in contexts of extreme poverty since all people, not just those who can pay for it, can have access to it. 2.2. informed consent and gender stereotypes in sexual and reproductive health. the obligation of states in the context of women´s delivery in the case i.v. vs. bolivia (2016) the iacthr condemned bolivia for the nonconsensual sterilization of a poor, migrant woman, who lived in bolivia as a political refugee, during the delivery of her second daughter. this was the first case where the court produced standards about informed consent in the health context, especially in reproductive rights, under both the achr and the convention of belém do pará. after being persecuted, arrested and tortured in peru, her country of birth, i.v. settled as a refugee in bolivia. in 2000, after her water broke, she went to the emergency room of the women’s hospital in la paz where she received a cesarean section. during the procedure, complications arose and the following morning, the doctor informed i.v. that her fallopian tubes had been tied, arguing that future pregnancies would be dangerous for her which meant she would not be able to have children again. the doctor argued that he had obtained i.v.’s verbal consent during the trans-operative period although at that moment she was under epidural anesthesia. this case is very important because, even though the court does not recognize the violation of the right to health, it establishes the following relevant standards: -regarding consent: the court acknowledged that informed consent ensures autonomy as an inalienable element of a person’s dignity (hevia and constantin, 2018). in this sense, the iacthr said “the existence of a connection between physical and psychological integrity with personal autonomy and the freedom to make decisions about 34 about the situation of latin america abortion law and advances, see ramón michel (2020); bergallo/ ramón michel (2016). 35 for example, two cis men, or a couple of a cis man with a trans man, or a single woman or man, or a cis woman whose partner is a trans woman, among others (lamm, 2019). liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 11 one’s body and health requires, on the one hand, the state’s ensuring and respecting decisions and choices freely and responsibly made and; on the other hand, guaranteeing access to relevant information so that people are able to make informed decisions about the course of action regarding their body and health according to their own plan of existence” (para. 155). the court held that there is an international obligation of the state to obtain the patients’ consent for medical acts, especially in the case of women’s sterilizations by health workers considering the stress and vulnerability under which women are during or immediately after childbirth or cesarean section (para. 183). thus, the patient’s consent, free, full and informing the possible future consequences has to be prior to decision making. this standard of informed consent has a relevant impact not only in cases of pregnancy but also in other situations regarding health. that is the case of trans people since consent, as litardo says, “should have a non-pathologization approach, which means that you don't need to have a medical diagnosis based on your gender identity so as to have full access to healthcare: like in any other medical intervention, your informed consent is enough” (litardo, 2022). this was reinforced later by the court, in the recent advisory opinion no. 29 (2022). -regarding discrimination: the court identified two situations of discrimination: first the woman’s special vulnerability since she was poor, a refugee, a migrant of peru, delivering a baby (para. 318 and ss). the iacthr pointed out that women’s freedom of autonomy in sexual and reproductive health tends to be analyzed under the lens of social determinism (hevia and constantin, 2018), which implies that people’s actions are determined by factors such as their belonging to a certain social class, the way in which they participate in productive structures, their educational background, and the cultural traditions and social habits of their environments, among others. adding to this, iv was in the middle of delivery, which made her even more vulnerable. thus the court claimed that i.v. suffered intersectional discrimination.36 second, the power of doctors in general and especially during women’s delivery or in situations related to sexual and reproductive health which is also related to gender stereotypes. -regarding gender stereotypes: the iacthr showed a relation between forced sterilization and gender stereotypes since women have historically been considered, even within health practices, as dependent and subordinate due to power relations regarding gender. in this sense, it concludes that “it is transcendental to prevent the personal doctor from inducing the patient to consent as a result of the lack of understanding of the information provided, and to refrain from acting without it, particularly in cases where the woman has limited economic resources and/or low levels of education, under the pretext that the measure is necessary as a means of population and birth control. the latter can, in 36 this is a concept that the court returns to in other judgments. for example, “gonzales lluy vs. ecuador”, “poblete vilches vs. chile”, “employees of the fireworks factory vs. brazil” and others. not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 12 turn, lead to a situation in which decision-making is induced in favor of the sterilization of women and not men, based on the stereotype that women are the ones who hold the primary role of procreation and must be responsible for contraception” (para. 188). the court reaffirms in this case that people are autonomous, even before medical procedures, breaking the paternalistic logic so powerful in the context of medicine. in this sense, “the stereotypes of maternity, about the role of women and violence towards non-normative gender identities can constitute real barriers to access to sexual and reproductive rights, because they are still rooted in the effectors of health and in state practice” (brichetti, 2021: 40, my translation). besides, the relevance of linking gender stereotypes and the effective exercise of rights arises also in relation to gender identity and sexual orientation. for example, in hormonal therapy and gender reassignment treatment or surgery. this case is also important because of the remedies ordered by the court, many of which seek to have a structural impact guaranteeing non-repetition. in this regard, it ordered: to design dissemination material that explains synthetically, clearly and easily accessible the rights of women in terms of their sexual and reproductive health, with specific mention of prior, free, full and informed consent to create education and training programs aimed at medical students and doctors, as well as all health workers on issues regarding informed consent, gender-based discrimination and stereotypes, and gender-based violence. on the other hand, in the case of i.v., the court ordered to effectively guarantee psychological treatment. with this, it made it clear that in order to guarantee access to health, it is not enough to have a public system; it is also necessary to provide certain structural conditions; health is much more than having access to a hospital, it implies that people should be able to arrive at such a hospital, that doctors should be available to treat them, that quality of attention should be guaranteed, among other conditions. in conclusion, with this case, the court recognized the structural context in which violations to women’s sexual and reproductive rights occur and provided fertile ground for further discussions on the ways in which discrimination and human rights intersect (hevia and constantin, 2018).37 2.3. the criminalization of obstetric emergencies in the case “manuela and others vs. el salvador” (2021) the iacthr found el salvador responsible for violations of manuela’s rights to personal liberty and presumption of innocence during her pre-trial detention; her rights to judicial guarantees, personal 37 other international human rights bodies have in fact advanced further. for example, the cedaw committee recognizes that in certain cases violations of sexual and reproductive rights may constitute torture or cruel, inhuman or degrading treatment. a/hrc/22/53; cedaw committee, general recommendation # 35 (2017). liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 13 integrity, and equality before the law during her trial; and her rights to life, personal integrity, health, private life, and equality before the law while incarcerated. manuela lived in a poor context, in a farmhouse with her parents and her two children where she moved after her husband left to look for a job in the us. both she and her parents were illiterate. since 2006 she was in hospital several times for severe headaches and lumps in her neck which were diagnosed as tiredness, gastritis, and other mild illnesses. in february 2008, when she was 32 years old, she experienced severe pelvic bleeding and finally lost consciousness. her family took her to the local public hospital where she was diagnosed with out-of-hospital delivery. before receiving medical treatment, she was reported to the prosecutor because she was suspected to have had an abortion. while she was handcuffed to her hospital bed and interrogated by the police without a lawyer, police officers aggressively questioned her parents, forcing her father to sign a document he could not understand since he could not read. it was in fact a formal accusation against manuela, later used as a key piece of evidence against her. in the trial, where she was represented by a poorly prepared lawyer, manuela was sentenced to 30 years in prison for aggravated homicide. she died in prison in april 2010 after being diagnosed with hodgkin’s lymphoma because she was not provided with consistent chemotherapy. this case represents an advance in different aspects: first, the court analyzed the case, taking into account the context in which abortion was criminalized. in 1998, in el salvador, a new criminal code had entered into force in which the non-punishable causes of abortion were eliminated and the classification as attenuated homicide in cases in which the “mother kills her child during the birth or within seventy-two hours after” was ruled out; in addition, it established that doctors, pharmacists, patients and other people who practiced professions related to health had to report any suspicion of abortion to the justice system. in manuela´s case the court recognized the strong impact of this legislation on the criminalization of women who suffered obstetric emergencies in el salvador were pregnant women requiring emergency care are often accused of abortion, a charge then augmented to aggravated homicide, which requires automatic pretrial detention and can lead to a 40-year prison sentence. consequently, approximately 200 women and girls have been prosecuted since the complete criminalization of abortion in 1998 (viterna/ bautista, 2017; peñas defago/ canaves, 2018). this shows that manuela´s was not an isolated case.38 second, the court took into account the discrimination and stereotypes involved in the case. the fact that manuela was a young, poor, rural woman, without education and with rudimentary access to health service was a cause of special discrimination due to the intersectionality of the factors involved.39 and it was also a case of indirect discrimination 38 different reports and observations from human rights treaty bodies warned about this situation in el salvador. 39 in this sense, “in a rights framework, health is produced, experienced, and understood in the social, political, historical, and economic contexts in which we live. this perspective forces us to see the suffering not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 14 as she lived in a patriarchal and unequal society where the absolute prohibition of abortion rules. this regulation, apparently neutral, has particularly disproportionate negative repercussions only on specific persons or groups due to the existence of stereotypes in both health agents and judicial operators and the ambiguity of the legislation ruling in el salvador regarding the obligation of doctors to both keep secrecy and report crimes, which is applied especially in public hospitals and not in private clinics. the stereotype of “good mother” is associated with women, especially when they are poor and thus, they are stigmatized when they resort to abortion without further ado.40 in manuela's case, no health agent wondered in which health condition she had arrived at the obstetric emergency; instead, it was assumed that she had had an abortion. this wouldn't have happened if she had gone to a private hospital, which makes it evident that this “legislative ambiguity” does not affect women who have sufficient financial resources (parr. 254). finally, the court established standards regarding professional medical secrecy and the protection of manuela's sensitive data. due to the disclosure of medical information women who need medical assistance may avoid going to a hospital for fear of being criminalized, which can result in inadequate access to medical care (brichetti 2021, p. 37). thus, the court reinforces the obligation to keep professional secrecy and guarantees for women who attend hospitals, as it was outlined in the case “iv vs. bolivia”. on the other hand, negative gender prejudices and stereotypes affect judicial agents’ objectivity, closing possible lines of investigation into actual facts. thus, the court concluded that manuela's deprivation of liberty prevented her from receiving adequate medical care for the illness she developed. these omissions in medical care also constituted a breach of the duty to guarantee manuela's right to life. the entire healthcare process should be free of gender stereotypes41: they must be eradicated not only from health (iv vs. bolivia) but also from judicial and/or research operators. however, the criticisms to this sentence are very strong because, although the court recognizes and identifies the effects of the absolute prohibition of abortion, it does not declare that the legislation in el salvador is contrary to the achr. the court only mentioned the disproportionality of the punishment (para. 162 and ss). in this sense, the court fails to declare that the absolute criminalization of abortion (and its impact on poor rural women and girls) was the real reason to prosecute manuela. the court could have reinforced the standards established in “artavia murillo” by claiming that the protection of life according to the achr is not absolute and thus legislations such as those of el salvador would be incompatible with the convention. this was a failed opportunity to that is not the result of “natural” biological causes but rather stems from human choices about policies, priorities, and cultural norms, about how we treat each other and what we owe each other” (yamin, 2008: 47). 40 about stereotypes in the iacthr, see undurraga (2017), gauché marchetti (2020), clérico/ bórquez (2021), ronconi (2022), among others. 41 in another sense, like in guzmán albarracín vs ecuador (2020), the court reinforced the importance of comprehensive sexual education to guarantee autonomous decisions regarding sexual and reproductive health, highlighting the importance of leaving the protectionist logic behind so as to guarantee public sexual education policies that improve the conditions in which people make their decisions related to sexual and reproductive health. see, martinez coral and martinez, 2021. liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 15 broaden the debate on abortion in the region.42 although international instruments do not speak of the right to access abortion, the guidelines on the right to life, equality and autonomy seem to indicate that this is a right. access to safe and legal abortion is a very important toll for the autonomy and health rights of women. 2.4. obstetric violence for some years the iacthr had been developing standards regarding sexual and reproductive rights. however, it had not yet developed obstetric violence as a concept in itself, allowing several opportunities to pass. in fact, obstetric violence marked the facts of the cases iv vs. bolivia and manuela vs. el salvador and yet the iacthr didn’t recognize it. then in advisory opinion 29/22 appeared a related concept but it was with brítez arce’s case that obstetric violence was more thoroughly developed, which represents a great advance in a region where the rates of maternal deaths and reports of violence in health centers are high. advisory opinion n. 29 (2022) refers for the first time to the concept of obstetric violence, specifically related to pregnant women who are in conditions of detention during childbirth, postpartum and breastfeeding, applying the standards of the belem do pará convention in terms of state obligations. this convention establishes that states have to prevent this type of violence in prison settings, to guarantee contact with health personnel and family members of women in labor in a simple and culturally acceptable manner and to guarantee access to justice and adequate reporting channels. but this standard was not enough because it comprised only those women in prison. but it was with the brítez arce vs argentina (2022) case that the court deepened the concept of obstetric violence. when cristina brítez arce, a 38-year-old paraguayan lady was nine months pregnant, she arrived at hospital with lumbar discomfort, fever, and little fluid loss from her genitals. an ultrasound was performed, which indicated a dead fetus, for which she was admitted to induce labor. cristina died in hospital a few hours later. although she had had a risky pregnancy, during that period she had received neither adequate information nor the right attention. so in fact this medical lack of attention was the real cause of her death after entering hospital. nevertheless, according to the death certificate, the victim died that same day due to non-traumatic cardiorespiratory arrest. as a result of this case, the court held that states have the obligation to provide adequate, specialized, and differentiated health services during pregnancy and childbirth within a reasonable period before and after childbirth, in order to guarantee the mother's right to health and prevent mortality and maternal morbidity. this implies the obligation to guarantee: a) accessibility to health information, especially on reproductive and maternal 42 in this sense, progress in the region is few. colombia´s constitutional court recent decision c-055 of 2022, which decriminalized abortion during the first 24 weeks of pregnancy, is historic for three main reasons. in argentina in 2020 the congress approved the voluntary interruption of pregnancy, in méxico in 2021 the supreme court rules criminal penalties for abortion unconstitutional, among others. about this situation, see bergallo, jaramillo, vaggione (2018). on the other hand, the court must come out strongly in favor of safe and legal abortion access and have others cases to do so. for example, in case beatriz and others vs. el salvador. more information in https://www.corteidh.or.cr/docs/tramite/beatriz_y_otros.pdf not one step back: lessons learned and challenges in a consolidate agenda of sexual and reproductive rights in the inter-american court of human rights the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 16 health during all stages of pregnancy, which must be based on scientific evidence, issued without bias, free of stereotypes and discrimination;43 b) a birth plan agreed in advance with the health institution that will assist the birth; c) the right to mother-child contact. most importantly the court held that obstetric violence, prohibited by different human rights instruments, is a form of gender-based violence exercised by those in charge of health care on pregnant people, during access to services that take place during pregnancy, childbirth and postpartum. this is made evident mostly, although not exclusively, by a dehumanized, disrespectful, abusive or negligent treatment towards pregnant women; by the refusal of treatment and complete information about the state of health and the suitable treatments; by forced or coerced medical interventions, and by the tendency to pathologize natural reproductive processes, among other threatening manifestations in the context of health care during pregnancy, childbirth and postpartum. the cases analyzed made it possible to identify important advances in the field of reproductive rights, especially regarding the relevance of informed consent for medical practices, the importance of technologies as forms of reproduction, and developments in the recognition of obstetric violence. it also revealed the characteristics that have marked these cases and have allowed the court to further develop the concept of stereotypes. however, this concept still needs to be expanded abandoning the isolated classifications to welcome more complex forms that interact with each other (combined stereotype) (clerico/ bórquez, 2021). in addition, context has to be observed when it comes to sexual and reproductive rights so as to provide a comprehensive solution. in this sense, the court developed relevant standards for women and lgbti people in contexts of violence, poverty, imprisonment and rurality but did not, for instance, develop similar standards for children, people with disabilities and indigenous peoples although there are clear guidelines on sexual and reproductive rights in, for example, the committee on the rights of the child or in the follow-up mechanism to the belem do pará convention (mesecvi), among others. another relevant issue that has not been developed by the court is conscientious objection that has become the mechanism through which many professionals avoid providing this population with the necessary health service, even refusing to refer their patients to other health care institutions where the practice in question should be guaranteed. all these cases are important since they show not only remedies but also actions to prevent violations of sexual and reproductive rights. in this sense, we should highlight that the iacthr recognizes the relevance of comprehensive sexual education as a tool to develop women and lgbti people’ autonomy (ronconi, espiñeira, guzman, 2023). 3. conclusion a lot of progress has been made in the region regarding sexual and reproductive rights. several causes have contributed to these advances such as cultural and political 43 in the same sense that the iacthr hold in the case “iv vs. bolivia”. liliana ronconi the age of human rights journal, 22 (june 2024), e7980 issn: 2340-9592 doi: 10.17561/tahrj.v22.7980 17 demonstrations, legal activism, and others. the iacthr has been a very important actor in this context producing advances in the recognition of these rights and their interpretation. for example, in the definition regarding when life begins, the obligation of states about free, prior consent in the context of women´s delivery, professional confidentiality, personal autonomy, obstetric violence, among others. these recognitions play a very important role in the region, since it must be applied by national judges under the doctrine of “conventionality review”. nevertheless, there are a lot of situations where human rights standards should be expanded, because they are being discussed in academic analysis, but have not yet reached everywhere, especially those people such as health operators who must apply these standards in the first stage of the problem,. here, then, there is a great challenge for the states of the region, even for the inter-american court itself. in addition, as we have already mentioned, it is necessary for the court to reinforce the concept of inequality and stereotypes. especially how they operate with respect to women and lgbti people in contexts of intersecting inequality. acknowledgments this article is the result of a conversation within the framework of the seminar “health justice in the americas: the role of the inter-american court of human rights” organized by the petrie-flom center for legal policies in health, biotechnology and bioethics at harvard law school, the global health education and learning incubator (gheli) at harvard university, april 5, 2022 (virtual format) with alicia yamin, christian courtis, diana guarnizo and laura clérico. my thanks to all of them and to the participants. i also want to thank gabriela rodríguez de anca for the revision of the english version. bibliography a/73/152: report of the independent expert on protection against 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doi: 10.17561/tahrj.v22.7980 24 sala constitucional de la corte suprema de justicia de la república de costa rica (may, 26th. 2020). colombia´s constitutional court decision c-055 of 2022 colombia´s constitutional court decision t-063/15. federal court of brazil adpf 132 / rj (5.05.2011) received: 2nd may 2023 accepted: 13th october 2023 not one step back: lessons learned and challenges in a consolidate agenda of sexual and reprod abstract introduction 1. sexual rights 1.1. sexual orientation 1.2. gender identity 2. reproductive rights 2.1. the beginning of life and reproductive technologies 2.2. informed consent and gender stereotypes in sexual and reproductive health. the obligation of 2.3. the criminalization of obstetric emergencies 2.4. obstetric violence 3. conclusion acknowledgments bibliography inter-american commission on human rights (iachr) inter-american court of human rights (iacohr) others women‘s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 345 women’s representation and rights in the african court lilian chenwi* abstract: the african union and african states’ have committed to upholding gender equality and women’s rights. a pivotal mechanism for advancing this commitment and human rights in general is the african court on human and peoples’ rights, with its broad substantive jurisdiction. this article considers the legal basis for gender parity and the extent to which gender representation and women’s rights has been advanced through or by the court. it establishes that though the court’s jurisprudence on women’s right is quite scant, the court has illustrated its potential and willingness to protect women’s rights through its advisory and contentious jurisdiction. significant strides have also been made in attaining gender equality on the court’s bench, but with more to be done in terms of substantive representation in the court’s leadership positions. keywords: african court, african human rights court, gender equality, women’s representation, women’s rights, human rights in africa, access to justice, legal costs. summary: 1. introduction. 2. women’s representation on the court’s bench. 3. women’s rights in the court’s jurisprudence. 3.1. bringing legal matters/cases on women’s rights: some constraints. 3.2. protection of the rights of poor and marginalised women. 3.3. protection of women’s marriage and inheritance rights. 4. conclusion. 1. introduction gender equality and women’s rights are essential to africa’s development. however, the african charter on human and peoples’ rights (african charter), the main african regional human rights treaty, fails to give adequate attention to gender equality and women’s rights in its provisions, merely recognising the need for states to protect women’s rights and eliminate all discrimination against women.1 this has resulted in the adoption of various measures to supplement the african charter. for example, in may 1999, the african commission on human and peoples’ rights (acmhpr),2 based on the need to give specific attention to the problems and rights of women in africa, appointed a special rapporteur on the rights of women in africa.3 the special rapporteur is a focal * professor, school of law, university of the witwatersrand, south africa (lilian.chenwi@wits.ac.za) 1 african charter on human and peoples' rights, adopted 27 june 1981, entered into force 21 october 1986, oau doc. cab/leg/67/3 rev. 5, 21 i.l.m. 58 (1982) (hereafter ‘african charter’), article 18(3); see also articles 2 and 3 on equality. 2 a quasi-judicial regional body and an organ of the au, mandated to promote and protect human and peoples’ rights in africa. 3 african commission on human and peoples’ rights, ‘resolution achpr/res.38(xxv)99 on the appointment of a special rapporteur on the rights of women in africa’ 25th ordinary session, 26 april to 5 may 1999. women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 346 point for the promotion and protection of women’s rights in africa.4 in 2003, the protocol to the african charter on the rights of women in africa (african women’s protocol) was adopted5 to supplement the african charter. as its name suggests, the protocol is dedicated to women’s rights and is the main african regional treaty on women’s rights. furthermore, in 2004 and 2009, the african union (au) illustrated its commitment to advancing gender equality by adopting the solemn declaration on gender equality in africa6 and a comprehensive policy on gender,7 respectively. the policies and treaties provide a framework for the realisation of gender equality, non-discrimination and women’s rights in africa. however, disparities exist between men and women in various spheres, due in part to inadequate mainstreaming of gender issues in various policies and sectors.8 this has impacted negatively on the enjoyment of rights, particularly for women. it is therefore important that the relevant frameworks not only translate into enjoyment of women’s rights in practice but also in the development of jurisprudence or tradition at the african regional level that advance the rights of women, gender equality and women’s representation in all spheres and at various levels. with covid-19, this has become even more crucial. globally, covid-19 has worsened gender inequalities, genderpoverty gaps and exposed women to rights violations. as stated by the united nations (un) secretary general: ‘across every sphere, from health to the economy, security to social protection, the impacts of covid-19 are exacerbated for women and girls simply by virtue of their sex’.9 in africa, an increase in gender-based violence including 4 for more information on the special rapporteur’s mandate, see african commission on human and peoples’ rights, ‘special rapporteur on rights of women: mandate and biographical notes’ https://www. achpr.org/specialmechanisms/detailmech?id=6 (accessed 2 september 2021). 5 protocol to the african charter on human and peoples' rights on the rights of women in africa, adopted 13 september 2000, entered into force 25 november 2005, au doc. cab/leg/66.6 (hereafter ‘african women’s protocol’). the protocol is also referred to as the maputo protocol. 6 african union ‘solemn declaration on gender equality in africa’ au doc. assembly/au/decl.12 (iii) rev.1 (july 2004) (hereafter ‘au declaration on gender equality’). 7 african union, ‘au strategy for gender equality and women’s empowerment 2018-2028’ adopted 20 march 2019 https://au.int/documents/20190320/au-strategy-gender-equality-womens-empowerment-2018-2028 (accessed 2 september 2021) (hereafter ‘au gender strategy’). 8 lohini moodley, mayowa kuyoro, tania holt, acha leke, anu madgavkar, mekala krishnan, folakemi akintayo, ‘the power of parity: advancing women’s equality in africa’ (november 2019) https://www. mckinsey.com/featured-insights/gender-equality/the-power-of-parity-advancing-womens-equality-inafrica (accessed 2 september 2021). 9 united nations secretary general, ‘the impact of covid-19 on women’ policy brief (9 april 2020) p. 2 https://www.unwomen.org/en/digital-library/publications/2020/04/policy-brief-the-impact-of-covid-19-onwomen (accessed 13 october 2021). see also: talha burki ‘the indirect impact of covid-19 on women’ (2020) 20:8 newsdesk pp. 904-905. https://www.achpr.org/specialmechanisms/detailmech?id=6 https://www.achpr.org/specialmechanisms/detailmech?id=6 https://au.int/documents/20190320/au-strategy-gender-equality-womens-empowerment-2018-2028 https://www.mckinsey.com/featured-insights/gender-equality/the-power-of-parity-advancing-womens-equality-in-africa https://www.mckinsey.com/featured-insights/gender-equality/the-power-of-parity-advancing-womens-equality-in-africa https://www.mckinsey.com/featured-insights/gender-equality/the-power-of-parity-advancing-womens-equality-in-africa https://www.unwomen.org/en/digital-library/publications/2020/04/policy-brief-the-impact-of-covid-19-on-women https://www.unwomen.org/en/digital-library/publications/2020/04/policy-brief-the-impact-of-covid-19-on-women lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 347 domestic and sexual violence, and child marriages has been reported in many states.10 also, some african states have failed to protect women from the socio-economic impacts of covid-19.11 this article considers the role of the african court on human and peoples’ rights (african court or acthpr) – in strengthening women’s rights protection in the continent; specifically, the legal basis and extent to which gender representation, and women’s rights, have been advanced through or by the court. the acthpr is ‘the judicial arm of the african union’.12 it is established under the protocol to the african charter on human and peoples’ rights on the establishment of an african court on human and peoples’ rights13 (acthpr protocol). its mandate is to interpret and apply the african charter and other relevant human rights instruments as well as provide its opinion on legal issues related to these instruments. it is thus also tasked with interpreting and applying the african women’s protocol that is aimed at advancing women’s rights and gender equality. in fact, the african women’s protocol specifically tasks the acthpr with interpretation of the protocol.14 through this mandate, the court can provide important insights into the protocol’s provisions and drive its implementation (and implementation of gender equality and women’s rights in general). the court is therefore a pivotal mechanism for advancing gender equality and women’s rights, including in cases of violations of women’s rights. it should be noted that though reference is made to women and girls/girl children in parts of this article where emphasis on the latter is necessary, the term women is used in other parts to include girls as defined in the african women’s protocol.15 10 see generally: african union, ‘policy paper gbv in africa during covid-19 pandemic’ (22 january 2021) https://au.int/en/documents/20210122/policy-paper-gbv-africa-during-covid-19-pandemic (accessed 2 september 2021); equality now, ‘women’s rights in africa: celebrating the 17th anniversary of the maputo protocol during covid-19’ (11 july 2020) https://www.equalitynow.org/womens_rights_africa_ maputo_protocol_covid_19 (accessed 2 september 2021). 11 see equality now (n 10). 12 the acthpr is described as such on its website (see african court on human and peoples’ rights ‘basic information’ https://www.african-court.org/wpafc/basic-information (accessed 25 april 2022). it should however be noted that the judicial arm of the au would be the envisioned african court of justice and human rights (acjhr) should it come to practical fruition. though the acthpr is currently operating as a single court, it is undergoing structural reform, to be merged with the african court of justice (which is currently non-operational) and with the introduction of an international criminal law section, to form a threesectioned acjhr. uncertainty remains as to the timeframe of the changes, as states have thus far failed to ratify the relevant treaty. see protocol on amendments to the protocol on the statute of the african court of justice and human rights, adopted 27 june 2014 (not yet in force with no ratifications and 15 signatories) https://au.int/en/treaties (accessed on 15 december 2021). on the ratification challenges, see maram mahdi ‘africa’s international crimes court is still a pipe dream’ (15 october 2019) https://issafrica.org/iss-today/ africas-international-crimes-court-is-still-a-pipe-dream (accessed 15 december 2021). 13 protocol to the african charter on human and peoples’ rights on the establishment of an african court on human and peoples’ rights, adopted 9 june 1998, entered into force 25 january 2004, oau doc. oau/ leg/exp/afchpr/prot (iii) (hereafter ‘acthpr protocol’). 14 african women’s protocol (n 5) article 27. prior to the court’s operationalisation, the acmhpr was tasked with matters of interpretation, in addition to monitoring implementation of the protocol. 15 african women’s protocol (n 5) article 1(k). https://au.int/en/documents/20210122/policy-paper-gbv-africa-during-covid-19-pandemic https://www.equalitynow.org/womens_rights_africa_maputo_protocol_covid_19 https://www.equalitynow.org/womens_rights_africa_maputo_protocol_covid_19 https://www.african-court.org/wpafc/basic-information https://au.int/en/treaties https://issafrica.org/iss-today/africas-international-crimes-court-is-still-a-pipe-dream https://issafrica.org/iss-today/africas-international-crimes-court-is-still-a-pipe-dream women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 348 this article first considers the relevant legal framework and gender composition of the court (its bench in particular). the aim is establish the legal basis for, and extent of, gender representation on the bench. the consideration of gender representation and equality on courts’ bench is important, as the presence of women judges in this space, that they have historically been excluded from, enhances the legitimacy of courts and is necessary for attaining a more just rule of law.16 it has been acknowledged that women ‘also contribute significantly to the quality of decision-making and thus to the quality of justice itself’.17 but this aspect is beyond the scope of this article. the article does not delve into the question of whether or not one could draw any correlations between the court’s gender composition and the jurisprudence, as the focus is not on the difference women judges make in relation to the quality of decisions.18 therefore, the article does not consider the effectiveness of the elected female judges as viewed through their rulings. the article then considers the court’s jurisprudence (advisory and contentious decisions on women’s rights) with the aim of identifying the extent to which it has sought to enforce women’s rights. understanding the court’s strides or contribution to upholding women’s representation and rights would be useful in relevant advocacy initiatives on gender equality and women’s rights. also, the court’s decisions has wide-ranging implications for advancing human rights for all and in affording justice to victims of rights violations. it should be noted that the acthpr’s has also undertaken advocacy initiatives on women’s rights through, for instance, organisation of seminars.19 this has however been to a limited extent. though the court’s advocacy initiatives are not considered in this article, they are important in raising awareness of women’s rights and providing a forum for discussing challenges limiting enjoyment of women’s rights. they are therefore a useful means of promoting women’s rights in the continent that should be employed consistently. 2. women’s representation on the court’s bench one of the principles of the au is promotion of gender equality.20 the au recognises the need to build partnerships ‘between governments and all segments of civil society, in particular women’, among others.21 building on the au constitutive act, 16 vanessa ruiz, ‘the role of women judges and gender perspective in ensuring judicial independence and integrity’ https://www.unodc.org/dohadeclaration/en/news/2019/01/the-role-of-women-judges-and-agender-perspective-in-ensuring-judicial-independence-and-integrity.html (accessed 13 september 2021). 17 ibid. 18 on the question of whether women judges make decisions that are different from their male counterparts and on the contributions of women judges (drawing on the experiences of african women judges) to international courts, see generally, josephine dawuni, ‘african women judges on international courts: symbolic or substantive gains’ (2018) 47(2) university of baltimore law review 199-245. 19 for example, in 2016, on international women’s day, it organised a seminar on the rights of women under the african women’s protocol. the seminar was part of activities to celebrate 2016 as african year of human rights with particular focus on the rights of women, as declared by the au. see african court on human and peoples’ rights, ‘activity report of the african court on human and peoples’ rights: 1 january – 31 december 2016’, au executive council: thirtieth ordinary session, doc. ex.cl/999(xxx) (22-27 january 2017) paragraph 36. 20 constitutive act of the african union, adopted 7 november 2000, entered into force 26 may 2001, oau doc. cab/leg/23.15 (hereafter ‘au constitutive act’), article 4(l). 21 ibid, preamble. https://www.unodc.org/dohadeclaration/en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html https://www.unodc.org/dohadeclaration/en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 349 the au’s constitutive instrument, the principle of gender equality and representation of women is enshrined in the african women’s protocol, requiring states parties to, inter alia, ensure equality between women and men, enforce gender equality rights, promote equal access to rights and opportunities, and ‘ensure increased and effective representation and participation of women at all levels of decision-making’.22 a year later, the au called for the expansion and promotion of the principle of gender parity ‘at all levels’ and ‘to all the other organs of the african union’ as well as the ‘active promotion and protection of all human rights of women and girls’.23 the au subsequently adopted agenda 2063, committing to an africa where development is ‘people-driven, relying on the potential of african people, especially its women and youth and caring for children’.24 the au and african states further committed to achieving by 2063 an inclusive africa where, inter alia: (a) ‘the full potential of women’ is realised; (b) gender equality is entrenched – with empowered women – in all spheres of life; (c) there is ‘transformative leadership in all fields’ including women; (d) there is ‘full gender parity’ in public and private institutions; (e) all forms of gender-based violence and discrimination in social, economic and political spheres against women and girls will have been removed; (f) ‘women … play an important role as drivers of change’; and (g) young women are the ‘path breakers of the african knowledge society’.25 the au and african states believe that achieving gender equality will ensure african states’ position ‘amongst the best performers in global quality of life measures’.26 also that women empowerment and their ‘full participation in all areas of human endeavours’ will enable the african society to reach its full potential in, inter alia, development.27 to realise the above principles and aspirations, the au adopted a gender strategy for the period 2018-2028 with its goal being ‘full gender equality in all spheres of life’.28 one of the principles on which the strategy is built is ‘giving women and girls an influential voice in all spheres of life’.29 the strategy calls for, inter alia, equal and fair representation of women in leadership and decision-making positions, ‘at all levels’, including ‘in most elected official positions of the’ au30 and by extension its organs and institutions. 22 see, for example, african women’s protocol (n 5) preamble and articles 2, 7(d), 8(d), 9(2), 13(a). 23 au declaration on gender equality (n 6) pp. 1 and 3. 24 african union ‘agenda 2063: the africa we want’ (2015) aspiration 6: paragraphs 8 and 47-58 https:// au.int/agenda2063/popular_version (accessed 7 september 2021). 25 ibid, paragraphs 6, 27-28, 31, 34, 45, 47-58, 66(c)(e) and 72(k). 26 ibid, paragraph 11 27 ibid, paragraph 66(e); see also paragraph 8. 28 au gender strategy (n 7) p. 8. 29 ibid, p. 12. 30 ibid, pp. 10 and 17. https://au.int/agenda2063/popular_version https://au.int/agenda2063/popular_version women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 350 it is therefore fitting that the acthpr protocol, though adopted prior to the au gender strategy, recognises in addition to the requirement of regional representation31 and personal attributes of candidates,32 the need for adequate gender representation in the nomination and appointment of judges of the court. it requires states parties to give ‘due consideration … to adequate gender representation in nomination process’ of judges and the au assembly to ‘ensure that there is adequate gender representation’ in the election of judges.33 despite the above commitments, a decade after the court began operation,34 it had not achieved gender parity on its bench. the court was in fact identified as one of two au organs where women were the least represented.35 in the elections of judges of the acthpr, ‘very few female candidates’ were nominated by states parties for election and ‘where female candidates were submitted, the candidates were not elected’ despite states parties’ duty to ensure adequate gender representation.36 generally, adherence to the principle of gender representation in au organs and institutions has always been a challenge.37 in the context of the acthpr, this could be partly attributed to the lack of clarity on what ‘adequate’ gender representation entails. put differently, the lack of a prescribed number of gender representation. also, secondary consideration has been given to the requirement of gender representation compared with the requirement of regional balance.38 accordingly, to ensure adherence to the requirement of adequate gender representation, the au executive council decided in 2016 that, in the nomination process, ‘[a]t least one (1) member from each region shall be a woman’.39 in line with 31 acthpr protocol (n 13) article 14(2) requires ‘representation of the main regions of africa and of their principal legal traditions’. the regional representation quota is as follows: ‘east (2), central (2), north (2) south (2), and west (2), except in cases in which a region which has been duly informed has not presented candidates’ (see african union executive council, ‘decision on the modalities on the implementation of the criteria of equitable geographical and gender representation in au organs and institutions’ decision no. ex.cl/dec.907(xxviii), doc. ex.cl/953(xxviii), twenty-eighth ordinary session decisions (23 28 january 2016) paragraph 2(i)). 32 acthpr protocol (n 13) article 11(1) requires that candidates be (a) nationals of au member states, (b) jurists, (c) of high moral character and (d) with ‘recognized practical, judicial and academic competence and experience in the field of human and peoples’ rights’. 33 acthpr protocol (n 13) articles 12(2) and 14(3). 34 the acthpr began operation in 2006. 35 african union executive council ‘modalities on the implementation of the criteria of equitable geographical and gender representation in au organs and institutions’ doc. ex.cl/953(xxviii) twentyeighth ordinary session decisions (23 28 january 2016) paragraph 13. the other au organ with the least female representation being the au commission on international law. 36 ibid, paragraph 14. 37 ibid, paragraph 2. 38 dawuni (n 18) p. 205. 39 african union executive council, ‘decision no. ex.cl/dec.907(xxviii)’ (n 31) paragraph 2(iii). lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 351 this requirement, the election of judges for that year for some regions was postponed as the relevant states had nominated only male candidates. generally, the reasons for not nominating women are unclear. arguably, the absence of transparency and wide publicity of the nomination process at the national level and inadequate (or lack of) consultation by governments with relevant civil society professional organisations are limiting factors to the identification of qualified women candidates. notwithstanding, states clearly did not implement the requirement of gender equality in the nomination process.40 this resulted in a skewed gender balance bench (with two women judges only), attracting criticism.41 this was a concern from the court’s inception. while raising concern over the court constantly having not more than two women judges, justice sophia akuffo (then president of the court) was however positive that the non-nomination of women judges was not intentional and should be addressed in subsequent nominations.42 hence, she consistently called on au member states to meet their commitment to gender equality through nominating more women to the court’s bench.43 in 2017, the number of women judges on the bench rose to five.44 however, men judges continued to remain the majority. in 2018, however, the swearing in of other women judges saw ground-breaking progress, with the court having a female majority bench. hence, the strive for improving women representation on the court’s bench paid off. 2021 marked the 15th anniversary of the courts operationalisation, three years after achieving a gender balanced bench and little but noteworthy progress on women representation in leadership roles of the court, with the election of a female president of the court. currently, the court has a female majority bench, with seven of the 11 judges being women, including the president of the court.45 the au’s commitment to gender equality and sustained advocacy (led by women’s organisations) to achieve women’s equal participation in decision-making, among other regional factors and mechanisms, 40 generally, a key challenge that the au is faced with is implementation of its policies, including gender policies. see babatunde joshua omotosho ‘african union and gender equality in the last ten years: some issues and prospects for consideration’ (2015) 5(1) journal of integrated social sciences 92-104, p. 97. 41 see: japhet biegon and magnus killander ‘human rights development in the african union during 2008’ (2009) 9(1) african human rights law journal 295-311, p. 305; sonya sceats ‘africa’s new human rights court: whistling in the wind’ chatham house international law briefing paper 09/01 (march 2009) p. 11; viljoen (n 89 ) p. 424. 42 sophia akuffo ‘the practical relationship between the african court on human and peoples’ rights and the african union permanent representatives committee’ (october 2012) https://www.african-court.org/ wpafc/the-practical-relationship-between-the-african-court-on-human-and-peoples-rights-and-the-africanunion-permanent-representatives-committee-justice-sophia-akuffo/ (accessed 12 january 2022). 43 kuukuwa andam and sena dei-tutu ‘sophia akuffo: balancing the equities’ in josephine jarpa dawuni and akua kuenyehia (eds.) international courts and the african woman judge: unveiled narratives (2018) 98-108, p. 103. 44 magnus killander and michael gyan nyarko ‘human rights developments in the african union (january 2017-september 2018)’ (2018) 18(2) african human rights law journal 732-757, p. 739. 45 for a list of current and former judges of the acthpr, see african court on human and peoples’ rights, ‘judges’ https://www.african-court.org/wpafc (accessed 13 january 2022). https://www.african-court.org/wpafc/the-practical-relationship-between-the-african-court-on-human-and-peoples-rights-and-the-african-union-permanent-representatives-committee-justice-sophia-akuffo https://www.african-court.org/wpafc/the-practical-relationship-between-the-african-court-on-human-and-peoples-rights-and-the-african-union-permanent-representatives-committee-justice-sophia-akuffo https://www.african-court.org/wpafc/the-practical-relationship-between-the-african-court-on-human-and-peoples-rights-and-the-african-union-permanent-representatives-committee-justice-sophia-akuffo https://www.african-court.org/wpafc women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 352 contributed to the court’s gender-balanced bench success.46 the activism of justice akuffo also played a role. importantly too, the court played a critical role through revising its rules, incorporating the requirement of gender parity in its 2020 rules.47 this was a catalyst for women’s representation in the bureau of the court. the 2020 rules are aimed at, inter alia, ensuring gender parity and representation in the court at various levels. the court’s previous rules (the 2010 rules) had a general provision on ‘securing a balanced representation of gender’ in making appointments and electing to office.48 but the 2020 rules go further with a specific provision requiring observance of the principles of gender parity and a rotation system, as far as possible, in the composition of the bureau.49 the rules also require observance of gender parity in the composition of the registry. specifically, they require consideration of gender representation, as far as possible, in the appointment of the registrar and deputy registrar.50 in establishing committees and working groups that facilitate the court’s work, gender is one of the factors to be taken into account, as much as possible.51 it is hoped that the 2020 rules would facilitate sustainable women representation in not just the bureau but other levels of the court as required in the rules. for example, gender parity is needed in the leadership positions of the court’s registry. the current registrar (since 2012, previously deputy registrar from 2010) and deputy registrar (since 2014) are both men.52 it is also hoped that states will foster sustained gender parity through nomination of more women. generally, when qualified women candidates have been nominated, they have been elected.53 the court’s gender balanced – and particularly its female majority – bench is noteworthy, in light of the glaring persistent underrepresentation of women in international courts.54 46 see generally, j. jarpa dawuni, ‘keeping gender on the agenda for international benches: a case study of the african court on human and peoples’ rights’ in freya baetens (ed.), identity and diversity on the international bench: who is the judge (oup, 2020) pp. 516-537 on contributing factors to the court’s recent achievement of gender balance. 47 african court on human and peoples’ rights, ‘rules of court’, adopted 25 september 2020 (hereafter ‘acthpr rules’) rule 32. 48 africa court on human and peoples’ rights ‘rules of court’ (2010) rule 13. 49 acthpr rules (n 47) rule 10(2). 50 ibid, rule 16(2). 51 ibid, rule 26(1). 52 see african court on human and peoples’ rights ‘office of the registrar’ https://www.african-court.org/ wpafc/category/registry/office-of-the-registrar/ (accessed 13 january 1978). 53 in 2008 and 2010, for example, there were only women nominees, and they were elected (see peacewomen ‘africa: in pursuit of gender parity at the african court’ (2012) https://www.peacewomen.org/content/ africa-pursuit-gender-parity-african-court (accessed 11 january 2022). 54 andreas follesdal ‘how many women judges are enough on international courts?’ (2021) journal of social philosophy 1-23, p. 1. see also elizabeth odio benito ‘symposium on gender-representation: gender parity in international courts – the voice of an international judge’ opiniojuris (14 october 2021) http://opiniojuris.org/2021/10/04/symposium-on-gender-representation-gender-parity-in-internationalcourts-the-voice-of-an-international-judge/ (accessed 14 january 2021). https://www.african-court.org/wpafc/category/registry/office-of-the-registrar https://www.african-court.org/wpafc/category/registry/office-of-the-registrar https://www.peacewomen.org/content/africa-pursuit-gender-parity-african-court https://www.peacewomen.org/content/africa-pursuit-gender-parity-african-court http://opiniojuris.org/2021/10/04/symposium-on-gender-representation-gender-parity-in-international-courts-the-voice-of-an-international-judge http://opiniojuris.org/2021/10/04/symposium-on-gender-representation-gender-parity-in-international-courts-the-voice-of-an-international-judge lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 353 some writers have however cautioned, and rightly so, that the court’s gender balanced bench success should be celebrated cautiously. this is because symbolic representation does not necessarily imply substantive representation within the court and there needs to be corresponding presence of women judges in leadership roles of the court (the bureau to be specific) in order to achieve substantive representation.55 though ‘women currently make up 55% of judges on the acthpr, they account for 35% of all judges since the court was established’.56 following the 2021 appointments, there was a slight increase in women’s representation in terms of leadership roles in the institution. women now account for 27% as three women – two times in the president role (2012-2014 and 2021-2023) and three times in the vice president role (2008-2010 and 20102012) have thus far served (including the current president) in the bureau of the court compared to eight men. this reflects an increase from 20% comprising two women, compared to the bureau position prior to 2021. while numerical gender representation confirms in reality, substantive gender representation remains distant. also, female judges mainstreaming since the past three years is yet to facilitate gender representation in other leadership positions of the court. there is thus need to also ensure gender balance in the court’s leadership positions. this would also ensure that women have a leadership role in contributing to human rights protection and development in the continent. however, for the judges to be able to facilitate realisation of women’s rights using jurisprudence, they have to be given the opportunity through the bringing of cases on women’s rights issues and violations before the court. 3. women’s rights in the court’s jurisprudence though the african charter failed to give adequate attention to women’s rights,57 the au and african states subsequently expressed their firm commitment to promoting, protecting and realising women’s rights. for example, the au gender strategy seeks to promote and protect women’s rights and gender equality.58 also, states parties to the african women’s protocol have affirmed their determination ‘to ensure that the rights of women are promoted, realised and protected in order to enable them to enjoy fully all their human rights’.59 the african women’s protocol addresses the gap in the african charter, providing a comprehensive normative framework on women’s rights. it guarantees women’s civil, political, economic, social and cultural rights, and some peoples’ (group) rights as they apply 55 see for example, j. jarpa dawuni and sègnonna h. adjolohoun, ‘the acthpr: from the politics of gender to the gender of politics? why women’s representation on the bench is not enough’ africalaw (2021) https://africlaw.com/2021/05/26/the-acthpr-from-the-politics-of-gender-to-the-gender-of-politicswhy-womens-representation-on-the-bench-is-not-enough/#more-2160 (accessed 7 september 2021). 56 ibid. 57 while singling out women as a group that deserves special protection, the single provision in the african charter that refers to women, simply require that states parties eliminate discrimination against women and ensure protection of women’s rights as provided for in international treaties and declarations. see african charter (n 1) article 18(3). 58 au gender strategy (n 7) p. 12. 59 african women’s protocol (n 5) preamble. https://africlaw.com/2021/05/26/the-acthpr-from-the-politics-of-gender-to-the-gender-of-politics-why-womens-representation-on-the-bench-is-not-enough/#more-2160 https://africlaw.com/2021/05/26/the-acthpr-from-the-politics-of-gender-to-the-gender-of-politics-why-womens-representation-on-the-bench-is-not-enough/#more-2160 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 354 to women. as noted in section 1 above, it further mandates the acthpr to protect women’s rights. specifically, the court is charged with interpreting the african women’s protocol.60 the court has a broad substantive jurisdiction, as it is not restricted to african human rights treaties. its jurisdiction extends to providing an opinion on legal matters relating to the african charter or other relevant human rights instruments (advisory jurisdiction).61 it also extends to cases and disputes relating to interpretation and application of the african charter, acthpr protocol and any other relevant human rights instrument that have been ratified by the states concerned (contentious jurisdiction).62 hence, the court can also address matters relating to other african regional treaties with implications for women such as the african children’s charter that is relevant to protecting the rights of girl children, and un human rights treaties on women’s rights such as the convention on the elimination of discrimination against women (cedaw),63 if ratified by the concerned african state. despite its broad substantive mandate, women’s rights protection in the acthpr’s jurisprudence is very scant. the court has, as of december 2021, dealt substantively with women’s rights in one advisory matter64 and one contentious matter65. the decision in these matters is considered in sections 3.2 and 3.3 below. another case that alleged violation of, inter alia, the african women’s protocol (article 3 on the right to dignity and protection from violence, article 14(1) on the right to health and article 6 on right of access to justice) was found to be inadmissible as local remedies had not been exhausted.66 the low number of women’s rights cases is disappointing considering that violations of women’s rights is rife in the continent.67 however, the court has not been presented with many opportunities to uphold women’s rights, thus limiting its ability to improve on its women’s rights jurisprudence and to adequately demonstrate its potential to uphold women’s rights. the low number can be attributed to, inter alia: constraints in bringing cases (elaborated on below); inadequate awareness of the court;68 inadequate awareness and use of the african 60 ibid, article 27. 61 acthpr protocol (n 13) article 4(1). 62 ibid, article 3(1). 63 convention on the elimination of discrimination against women, adopted 18 december 1979, entered into force 3 september 1981, 1249 unts 13. 64 the court has received 15 advisory opinion requests and has issued an opinion on four of them, including the opinion that addresses women’s rights. see acthpr ‘cases – statistics’ https://www.african-court.org/ cpmt/statistic (accessed 25 april 2022). 65 the court has received 325 contentious cases and finalised 140, including the contentious matter on girl children’s and women’s rights. see ibid. 66 kouma and diabaté v mali, application no. 040/2016, judgment (21 march 2018). 67 former judge/president of the acthpr, sylvain oré, has expressed his disappointment regarding the volume of litigation on women’s rights taking into consideration ‘the serious violations experienced by african girls and women’ despite ‘the massive ratification of the maputo protocol’. see african union, ‘final communiqué of the 59th ordinary session of the african commission on human and peoples’ rights’ (21 october 4 november 2016) paragraph 10. 68 see african court on human and peoples’ rights, ‘activity report of the african court on human and peoples’ rights: 1 january – 31 december 2020’, au executive council: thirty-eight ordinary session, doc. ex.cl/1258(xxxviii) (3–4 february 2021) (hereafter ‘acthpr activity report 2021’) paragraph 45, identifying inadequate awareness as a challenge faced by the court. the court has thus been involved in several activities aimed at raising awareness among stakeholders (paragraph 25). https://www.african-court.org/cpmt/statistic https://www.african-court.org/cpmt/statistic lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 355 women’s protocol;69 and regional treaty bodies not making effective use of their standing before the court to bring cases or legal issues on women’s rights. though the african women’s protocol has received wide ratification, it is yet to attain universal ratification.70 the au views the lack of universal ratification as a ‘deficit’ that has ‘grave consequences on the lives of women and girls in the continent’, limiting full protection of women’s rights in the continent.71 it is generally acknowledged that failure to realise the rights in the protocol can occur through failure to ratify it.72 the non-ratification by some states is mainly based on issues relating to women and girls’ sexual and reproductive health rights, particularly in the context of marriage or access to abortion.73 the protocol ‘offers women in the continent a critical tool for pursuing comprehensive remedies for human rights violations’.74 one of the avenues through which this can be pursued in cases of violations is the acthpr, subject to the relevant state’s ratification of the protocol. hence, the au’s goal of universal ratification is an important one in the quest to uphold women’s rights, ensure their full enjoyment, and facilitate access to remedies for women’s rights violations. to achieve the goal of universal ratification, advocacy efforts from various sectors including regional institutions, governments and civil society organisations have to be intensified. for example, the au should effectively implement a technical assistance programme aimed at assisting states that have not yet ratified the protocol to overcome obstacles to its ratification. also, governments should initiate regular national dialogues with relevant domestic stakeholders on the importance of the protocol to their domestic constituencies and importance of ratification as part of au member states’ commitment to promote and protect human rights.75 69 see generally, victor oluwasina ayeni (ed.), the impact of the african charter and the maputo protocol in elected african states (pulp, 2016), confirming lack of awareness and use of the african women’s protocol and ‘remedial systems in place at the supranational level to secure [rights] where domestic remedies become unavailable’, and underscoring the need to increase awareness of the treaty’s provisions at the domestic level and how the provisions can be used to resolve human rights problems in specific contexts. see also: romi sigsworth and liezelle kumalo, ‘women, peace and security: implementing the maputo protocol in africa’ institute for security studies paper 295 (july 2016) p. 20, confirming inadequate awareness of the african women’s protocol on the ground. 70 42 of the 55 african states have ratified the protocol. see the protocol's ratification/accession ‘status list’ https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa (accessed 18 october 2021). 71 african union, ‘slow progress in meeting commitment to 2020 as the year of universal ratification of maputo protocol’ press release (18 november 2020) https://au.int/en/pressreleases/20201118/slowprogress-meeting-commitment-2020-year-universal-ratification-maputo (accessed 18 october 2021). 72 adetokunbo johnson, ‘barriers to fulfilling reporting obligations in africa under the protocol to the african charter on human and peoples’ rights on the rights of women in africa’ (2021) 21(1) african human rights law journal 176-203, p. 178. 73 african union, ‘maputo protocol scorecard and index introduced to monitor implementation of women’s rights’ press release (23 june 2020) https://au.int/fr/node/38758 (accessed 21 october 2021). 74 johanna e. bond, ‘intersectionality, women’s rights in africa, and the maputo protocol’ in veronica fynn bruey (ed.) patriarchy and gender in africa (lexignton books, 2021) 47-80, p. 48. 75 on measures to encourage ratification of au treaties generally, see tiyanjana maluwa ‘ratification of african union treaties by member states: law, policy and practice’ (2012) 13 melbourne journal of international law 1-49, p. 33-40. https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa https://au.int/en/pressreleases/20201118/slow-progress-meeting-commitment-2020-year-universal-ratification-maputo https://au.int/en/pressreleases/20201118/slow-progress-meeting-commitment-2020-year-universal-ratification-maputo https://au.int/fr/node/38758 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 356 3.1. bringing legal matters/cases on women’s rights: some constraints ‘[a]ccess to regional and international human rights institutions usually is beyond the reach of millions of african women suffering from discrimination, violence and oppression’.76 various factors limit the ability to bring legal matters/cases relating to women’s rights before the acthpr. there is restrictive access to the court for certain entities. also, major hurdles to women’s access to justice regionally include access to resources, knowledge, legal aid and proficient legal representation.77 in addition, it should be re-emphasised that lack of awareness of the african women’s protocol provisions and regional mechanisms such as the acthpr through which remedies for violations of the protocol can be claimed as well as non-ratification of the protocol in some context also limit ability to bring cases. though the focus is on women, it is acknowledged that these factors would affect other groups as well, but women are often disproportionately affected due to, inter alia, their limited access to resources and knowledge. the subsequent paragraphs elaborate on the questions of restrictiveness in access to the court and legal costs/limitations on access to legal aid and representation. as evidenced from the discussion below, these constraints are not determinant factors in ‘all’ situations. but are relevant factors to consider. generally, there is restrictive access for certain entities – individuals, nongovernmental organisations (ngos) and the african committee of experts on the rights and welfare of the child (acerwc)78 – to bring cases before the court, which hampers the court’s ability to effectively carry out its mandate. in advisory matters, the acthpr protocol does not recognise standing for individuals to bring advisory opinions, hence women in their individual capacity are not able to bring such requests. while ngos are able to do so on their behalf, the access requirements are problematic, as ngos must show that they are (a) an african organisation and (b) recognised by the au.79 the second element excludes recognition by an organ of the au.80 yet in practice, obtaining au 76 annika rudman ‘women’s access to regional justice as a fundamental element of the rule of law: the effect of the absence of a women’s rights committee on the enforcement of the african women’s protocol’ (2018) 18 african human rights law journal 319-345, p. 321. 77 ibid. the author notes that these are also hurdles at the domestic level. however, because ‘international human rights litigation is built upon the principle of state sovereignty and, thus, around the principle of exhaustion of local remedies, limitations to access on the domestic level generally prevent access at the regional level’. 78 a quasi-judicial regional body and an organ of the au, mandated to promote and protect children’s rights in africa 79 acthpr protocol (n 13) article 4. 80 socio economic rights and accountability project (serap), request no. 001/2013, advisory opinion (26 may 2017) (hereafter ‘serap opinion’). in its opinion, the court failed to adopt a broad, flexible and contextual approach allowing for recognition by the ‘au’ in the acthpr protocol article 4 to be interpreted to not only mean ‘the au as a separate legal entity’ but to also include ‘the au acting through its organs’, resulting in it restricting access for ngos to its advisory jurisdiction. lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 357 recognition is difficult and the criteria are not well-known and not easily accessible.81 also, many ngos have recognition by the acmhpr82 (an au organ), which is required when bringing contentious matters to the court83 but not sufficient when bringing advisory opinion requests. hence, the court has declined to give an advisory opinion in relation to requests brought by african organisations that, though recognised by the acmhpr, have not been recognised by the au.84 furthermore, while the acerwc can bring advisory opinion requests as it is an organ of the au,85 it does not have standing to bring contentious cases before the court due to the acthpr protocol’s silence on it. as confirmed by the court, an amendment to the protocol granting the committee access to bring contentious cases is therefore required.86 the court’s failure to provide specific opinion on how and when to address this gap has been followed by a strict formalistic approach by the au,87 81 centre for human rights, ‘african court rejects centre for human rights and cal request, leaving political tension within au unresolved’ press statement (6 october 2017) https://www.up.ac.za/faculty-oflaw/news/post_2573674--press-statement-african-court-rejects-centre-for-human-rights-and-cal-requestleaving-political-tension-within-au-unresolved (accessed 7 september 2021). 82 by december 2021, the acmhpr had recognised 538 ngos, through the granting of observer status to them. see african commission on human and peoples’ rights, ‘combined 50th and 51st activity reports of the african commission on human and peoples’ rights’ (2022) https://www.achpr.org/activityreports/ viewall?id=53 (accessed 25 april 2022) paragraph 40. 83 acthpr protocol (n 13) article 5(3). 84 see for example: rencontre africain pour la défense des droits de l'homme (raddho), request no. 002/2014, advisory opinion (28 september 2017) paragraphs 38−39; centre for human rights of the university of pretoria (chr) and coalition of african lesbians (cal), request no. 002/2015, advisory opinion (28 september 2017) paragraphs 46−58; association africaine de défense des droits de l'homme, request no. 002/2016, advisory opinion (28 september 2017) paragraphs 23−36; centre for human rights of the university of pretoria, federation of women layers kenya, women’s legal centre, women advocates research and documentation centre and zimbabwe women lawyers association, request no. 001/2016, advisory opinion (28 september 2017) paragraphs 38−50. 85 acthpr protocol (n 13) article 4 lists ‘any au organ’ as one of the entities with standing to bring advisory opinion requests. 86 see african committee of experts on the rights and welfare of the child on the standing of the african committee of experts on the rights and welfare of the child before the african court on human and peoples’ rights, request no. 002/2013, advisory opinion (5 december 2014) (hereafter ‘acerwc opinion’). 87 the au executive council first called on the au assembly to amend article 5(1) of the acthpr protocol to include the acerwc (african union executive council, ‘decision on the report of the african committee of experts on the rights and welfare of the child (acerwc)’ decision no. ex.cl/ dec.923(xxix), doc. ex.cl/977(xxix), twenty-ninth ordinary session (13-15 july 2016) paragraph 8). it then required the acerwc to provide justifications and implications for the amendment (african union executive council, ‘decision on the report of the african committee of experts on the rights and welfare of the child (acerwc)’ decision no. ex.cl/dec.1017(xxxiii), doc. ex.cl/1091(xxxiii), thirty-third ordinary session (28-29 june 2018) paragraph 7). it also required the au commission on international law to undertake a study on the legal implications of the amendment (african union executive council, ‘decision on the reports of the specialised technical committees (stcs)’ decision no. ex.cl/ dec.1032(xxxiv), thirty-fourth ordinary session (78 february 2019) paragraph 32; african union executive council, ‘decision on the activity report of the african committee of experts on the rights and welfare of the child (acerwc)’ decision ex.cl/dec.1043(xxxiv), doc. ex.cl/1125(xxxiv), thirtyfourth ordinary session (7-8 february 2019) paragraph 9). the study has been completed (african union executive council, ‘decision on the activity report of the african union commission on international law (aucil), doc. ex.cl/1208(xxxvi), decision no. ex.cl/dec. 1083(xxxvi), thirty-sixth ordinary session (06 07 february 2020) paragraph 6). yet the gap remains, as at time of writing. https://www.up.ac.za/faculty-of-law/news/post_2573674--press-statement-african-court-rejects-centre-for-human-rights-and-cal-request-leaving-political-tension-within-au-unresolved https://www.up.ac.za/faculty-of-law/news/post_2573674--press-statement-african-court-rejects-centre-for-human-rights-and-cal-request-leaving-political-tension-within-au-unresolved https://www.up.ac.za/faculty-of-law/news/post_2573674--press-statement-african-court-rejects-centre-for-human-rights-and-cal-request-leaving-political-tension-within-au-unresolved https://www.achpr.org/activityreports/viewall?id=53 https://www.achpr.org/activityreports/viewall?id=53 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 358 resulting in protracted delays of seven years (and counting) in addressing the gap. as ‘women’ comprise ‘persons of female gender, including girls’,88 this is a limitation on the acerwc’s ability to effectively protect girl children’s rights through seeking binding remedies from the acthpr in cases of violations of their rights. individuals and ngos also face restrictive access in approaching the court directly in contentious matters. first, ngos must have observer status with the acmhpr. this condition is unnecessary, as the acmhpr that grants this status does not apply such a restriction in terms of cases brought before it by ngos.89 though burdensome, the observer status with acmhpr requirement has not been an actual inhibitor to direct access.90 second, states, in addition to ratifying the acthpr protocol, must explicitly permit individuals and ngos to bring a case before the court, through the making of an article 34(6) declaration by the state.91 states parties have shown unwillingness to do so, evidenced by the fact that only eight out of 33 states parties have entered such a declaration92 and four others initially entered the declaration but withdrew it following the court’s decisions against them in cases brought by individuals and ngos.93 the restrictive access for ngos to bring contentious cases is a serious inhibitor to access, considering the already restrictive access for ngos under the court’s advisory jurisdiction. the restrictiveness, it has been argued, ‘is a serious obstacle in advancing women’s rights through the human rights court’ considering that ‘ngos are most likely to advocate on behalf of african women’.94 while individuals and ngos have generally made use of the direct access granted to them through an article 34(6) declaration (with 301 applications from individuals and 21 applications from ngos as at time of writing), the number of cases involving women’s rights remains miniscule. one could attribute this to the other factors explained above that have contributed to the low number of cases on women’s rights. furthermore, the opportunity exists for women and ngos acting on their behalf to access the court indirectly through the acmhpr. however, the 88 african women’s protocol (n 5) article 1(k). 89 frans viljoen, international human rights law in africa 2 ed (oup, 2012) p. 430. 90 frans viljoen ‘understanding and overcoming challenges in accessing the african court on huma and peoples’ rights’ (2018) 67 international and comparative law quarterly 63-98, p. 75. 91 acthpr protocol (n 13) article 5(3). the court has therefore declined to consider a case filed by individuals or ngos where the relevant state has not entered the article 3496) declaration. see for example, yogogombaye v senegal, application no. 001/2008, judgment on jurisdiction (15 december 2009) 92 see african court on human and peoples’ rights, ‘basic information’ (n 12). the 33 states parties are: algeria, benin, burkina faso, burundi, cameroon, chad, côte d’ivoire, comoros, congo, democratic republic of congo, gabon, gambia, ghana, guinea-bissau, kenya, libya, lesotho, mali, malawi, mozambique, mauritania, mauritius, madagascar, nigeria, niger, rwanda, south africa, sahrawi arab democratic republic, senegal, tanzania, togo, tunisia and uganda. the eight states that have entered the art 34(6) declaration are: burkina faso, ghana, guinea-bissau, malawi, mali, niger, gambia and tunisia. 93 the states that have withdrawn their article 34(6) declaration are: rwanda, tanzania, benin and cote d’ivoire. on the questionable grounds they advanced for the withdrawal, see lilian chenwi, ‘the advisory proceedings of the african court on human and peoples’ rights’ (2020) 38(1) nordic journal of human rights 61-77, p. 62 (footnote 6). 94 karen stefiszyn, ‘the african union: challenges and opportunities for women’ (2005) 5 african human rights law journal 358-386, p. 383. lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 359 commission has failed to make effective use of its complementarity relationship with the court. it has failed thus far to bring advisory opinion requests (the reason is unclear) and has only brought three contentious cases to the court, despite often receiving rights violations complaints. the commission’s failure has been identified as one of the main barriers of access to the court.95 it is important that the constraints to access are addressed so as to facilitate the bringing of cases on women’s rights before the court. otherwise, women’s right of access to justice – which is ‘essential’ to the realisation of women’s rights and ‘a fundamental element of the rule of law’96 – is hampered. as regards legal costs/legal aid and representation, the au has acknowledged that ‘[r]ealisation of women’s rights is hampered by high cost of legal fees’ and ‘[f]ree legal aid to women is rare, provided mainly by civil society organisations’.97 as noted above, major hurdles to women’s access to justice nationally and regionally, include access to legal aid and proficient legal representation.98 the acthpr does not charge any fees for filing applications but unless the court decides otherwise, each party bears its own legal costs if any.99 but litigation before the court goes beyond the filing of an application. it is ‘an expensive exercise’, including costs of legal representation and travel expenses.100 hence, though registration of a case is free, there are other legal costs involved. it is thus commendable that, in the interest of justice, the court may provide free legal representation to any party.101 the court is required to maintain its own legal aid scheme and to collaborate with the au commission in managing the au legal aid fund for african human rights organs.102 the court has set up its legal aid scheme but provision of free legal assistance through the scheme is subject to resource availability.103 unfortunately, the court suffers from resources (including financial) constraints and the au legal aid fund that would also fund legal assistance has not been operational. the court thus called on the au assembly to ensure the fund’s establishment in 2021.104 in response, the au executive council adopted 95 sidney tambasi netya and cynthia gathoni miano ‘reflections on direct access to the african court on human and peoples’ rights: a cul de sac?’ (2021) 6(1) strathmore law review 103-136 p.136. the other main barrier identified being reluctance by states to the article 34(6) declaration and withdrawal of such declaration by some states. 96 committee on the elimination of discrimination against women, ‘general recommendation no. 33 on women’s access to justice’ un doc. cedaw/c/gc/33 (3 august 2015) paragraph 1. 97 au gender strategy (n 7) p. 42. 98 rudman (n 76) p. 321. 99 acthpr rules (n 47) rule 32. 100 viljoen (n 88) 444. 101 acthpr protocol (n 13) article 10(2). 102 acthpr rules (n 47) rule 31(3)(4). 103 african court on human and peoples’ rights ‘fees and legal aid’ https://www.african-court.org/wpafc/ fees-and-legal-aid/ (accessed 28 december 2021). 104 acthpr activity report 2021 (n 68) paragraphs 44 and 48. https://www.african-court.org/wpafc/fees-and-legal-aid https://www.african-court.org/wpafc/fees-and-legal-aid women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 360 a decision in which it, again, urged ‘the chairperson of the auc, in accordance with previous executive council decisions, to take all necessary measures to operationalize the legal aid fund, and to this end,’ invited and encouraged ‘all member states of the union, to make generous voluntary contributions to the fund to ensure its sustainability and success’.105 considering the aforesaid, the court’s awarding of legal aid in all cases where the interest of justice requires is not guaranteed or could result in delays, due to limited resources. hence, the high cost of legal fees/access to legal aid and representation is a relevant factor, as it could limit or delay access to justice in some instances. however, it is not a determinant factor considering the possibility of being awarded legal aid. it could be argued that the dearth of women’s rights cases at the court’s level is not so much about legal costs but individuals and ngos (that have direct access) or regional treaty bodies not bringing cases or legal issues (as applicable) before the court. this is a plausible reality considering that cases on women’s rights before other african regional or sub-regional human rights bodies/courts are also limited, compared to other cases. a contributing factor could be limitations to access legal aid and representation at the domestic level generally, which then prevents potential indigent litigants from exhausting domestic remedies and thus prevents them from access at the regional level.106 notwithstanding, the acthpr considers access to legal aid, among other factors, in assessing whether an applicant is required to exhaust local remedies or be exempted from the rule. with the opportunities it has been presented with to address women’s rights, the court has made petite but noteworthy strides in relation to the protection of women’s rights. specifically, it has sought to protect the rights of poor women and marginalised women, and the marriage and inheritance rights of women (including girl children and those born out of wedlock). 3.2. protection of the rights of poor and marginalised women globally, women including girls, ‘represent the majority of the poor in most regions and among some age groups’.107 they are economically, socially and culturally disadvantaged, are systematically denied opportunities and rights, and face structural and other forms of marginalisation.108 the situation of women has been exacerbated by covid-19, with measures in response to the pandemic disproportionately affecting the poor, especially poor women and girls.109 the au has confirmed that, in africa, women 105 african union executive council, ‘decision on the activity report of the african court on human and peoples’ rights’ decision no. ex.cl/dec.1112(xxxviii) thirty-eight ordinary session (3–4 february 2021) doc. ex.cl/1258(xxxviii) paragraph 10. 106 see viljoen (n 89) 444 and rudman (n 76) 321 confirming, in the african context, the challenge of access to legal aid and representation at domestic level; with rudman stating its ripple effect at the regional level. 107 world bank group, poverty and shared prosperity 2020: reversals of fortune (world bank, 2020) pp. 9-10, 25, 121, 125, 145 and 149. 108 amaka theresa oriaku emordi, papia sengupta and hope a. ikednma, ‘women, marginalisation and politics in africa and asia’ (2021) 2(2) integrity journal of arts and humanities 27-35, pp. 27-28. 109 world bank group (n 108) pp. 7-8, 100 and 172; gabrielle leite and samrat maskey, ‘covid-19 is driving women and girls deeper into poverty’ (un women, 17 october 2020) https://data.unwomen.org/ features/covid-19-driving-women-and-girls-deeper-poverty (accessed 8 september 2021). https://data.unwomen.org/features/covid-19-driving-women-and-girls-deeper-poverty https://data.unwomen.org/features/covid-19-driving-women-and-girls-deeper-poverty lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 361 ‘remain the majority of the poor, the dispossessed, the landless, the unemployed, those working in the informal sector, and those shouldering the burden of care’.110 it is therefore important that poor and marginalised women are accorded adequate protection as required under african regional human rights law. article 24 of the african women’s protocol, for example, obliges states parties to ‘ensure the protection of poor women and women heads of families including women from marginalized population groups and provide an environment suitable to their condition and their special physical, economic and social needs’. the provision thus establishes a ‘composite obligation’, requiring states parties ‘to create an environment where poor and marginalised women can fully enjoy all their human rights’.111 yet, poor and marginalised women in africa are unable to fully enjoy their rights due to, inter alia, vagrancy laws that many african states retain. based on their nature and application, vagrancy laws violate article 24 of the african women’s protocol, as established by the acthpr in palu vagrancy opinion.112 this was in response to an advisory opinion request on the compatibility of vagrancy laws with african human rights standards, including article 24 of the african women’s protocol. this section of the article considers the court’s holdings in relation to not just the protocol but other regional standards, as they are also of relevance to women, who are disproportionately affected by vagrancy. the request was submitted by pan african lawyers union (palu), followed by five amici submissions and one state (burkina faso) submission, all pointing to the incompatibility of vagrancy laws with african human rights standards.113 as palu had a memorandum of understanding (mou) with the au – ‘to co-operate in undertaking activities concerning the rule of law, promoting peace and integration, and protecting human rights in the continent’ – this was sufficient in meeting the recognition by the au requirement for it to have access to the court’s advisory jurisdiction.114 in the words of the court, ‘an mou is an acceptable way by which the au recognises non-governmental organisations’.115 110 au gender strategy (n 7) p. 25. 111 pan african lawyers union (palu), request no. 001/2018, advisory opinion on the compatibility of vagrancy laws with the african charter on human and peoples’ rights and other human rights instruments applicable in africa (acthpr, 4 december 2020) (hereafter ‘palu vagrancy opinion’) paragraph 137. 112 see ibid, generally. 113 ibid paragraphs 1 and 11-12. the acmhpr submitted its principles on the decriminalisation of petty offences in africa for consideration when addressing the request (see paragraphs 10 and 53). the principles on the decriminalisation of petty offences in africa, adopted 25 october 2018 https://www.achpr.org/ legalinstruments/detail?id=2 (accessed 8 september 2021) seeks to ‘guide states on the decriminalisation of petty offences in africa in terms of articles 2, 3, 5 and 6 of the african charter’ through establishing ‘standards against which petty offences created by law or by-law should be assessed’ and promoting ‘measures that can be taken by state parties to ensure that such laws do not target persons based on their social origin, social status or fortune by criminalising life-sustaining activities’. examples of petty offences stated in the principles include ‘being a vagrant’. 114 ibid, paragraph 24. 115 ibid. https://www.achpr.org/legalinstruments/detail?id=2 https://www.achpr.org/legalinstruments/detail?id=2 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 362 it is generally recognised that vagrancy laws undermine human rights.116 in africa, despite decisions by some sub-regional and domestic courts finding vagrancy laws to be unconstitutional, they are still retained in several states.117 the penal codes of ‘at least’ 18 african states contain vagrant offences.118 a vagrant is defined in vagrancy laws in africa as ‘“any person who does not have a fixed abode nor means of subsistence, and who does not practice a trade or profession,” a “suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself” or “someone who loiters or is idle and who does not have a visible means of subsistence and cannot give a good account of him or herself”’. 119 vagrancy, therefore, as defined by the court, refers ‘to various offences ... including but not limited to: being idle and disorderly, begging, being without a fixed abode, being a rogue and vagabond, being a reputed thief and being homeless or a wanderer’.120 put differently, it refers to ‘the state or condition of wandering from place to place without a home, job or means of support’.121 it is therefore a ‘misconduct brought about by a perceived socially harmful condition or mode of life’.122 hence, vagrancy laws refers to laws that ‘criminalise the status of individuals as being poor, homeless or unemployed as opposed to specific reprehensible acts’.123 they are justified, from a sociological perspective, on three main reasons: (i) ‘to curtail the mobility of persons and criminalise begging, thereby ensuring the availability of cheap labour to land owners and industrialists whilst limiting the presence of undesirable persons in the cities;’ (ii) ‘to reduce the costs incurred by local municipalities and parishes to look after the poor’;' and (iii) ‘to prevent property crimes by creating broad crimes providing wide discretion to law enforcement officials’.124 however, the problematic nature of the laws does not only lie in them criminalising the status of certain individuals, but also allowing for the ‘deportation to another area’ of persons that are declared ‘vagrant or rogue and vagabond’.125 furthermore, the laws permit the arrests of persons without warrants on the basis that they lack ‘means of subsistence and cannot give satisfactory account’ of themselves.126 the laws are therefore seen as ‘overly broad’ for giving ‘too 116 see for example office of the united nations high commissioner for human rights and un habitat, ‘the right to adequate housing’ fact sheet no. 21(rev.1) p. 22 https://www.ohchr.org/documents/ publications/fs21_rev_1_housing_en.pdf (accessed 12 october 2021), stating that vagrancy laws ‘have a direct impact on’ the rights, including ‘physical and psychological integrity’, of homeless people. 117 palu vagrancy opinion (n 111) paragraphs 60-62. 118 ibid, paragraph 60. 119 ibid, paragraph 69. in defining ‘vagrant’, the court also drew from black’s law dictionary, which defines it as ‘anyone belonging to the several classes of idle or disorderly persons, rogues and vagabonds’, including anyone who does not have ‘a settled habitation’, ‘strolls from place to place’, is ‘homeless, idle wanderer’ (paragraph 57). 120 ibid, paragraphs 57 and 58. 121 ibid, paragraph 57. 122 ibid. 123 ibid, paragraph 3. 124 ibid, paragraph 59. 125 ibid, paragraphs 3 and 5. 126 ibid, paragraph 5. this is the case in at least six african states (paragraph 135). https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 363 wide a discretion’ to law enforcement in deciding who to arrest, and in the absence of a criminal act.127 this wide discretion results in arbitrary and discrimination invocation of vagrancy laws based on officials’ social stigma and prejudice, targeting the poor.128 yet, african regional human rights law prohibits arbitrary arrests and detention.129 as regards the impact of vagrancy laws on women and their rights, vagrancy laws target those that are poor and marginalised, particularly women, sex workers and victims of domestic violence.130 women are particularly at risk of arrest and prosecution under vagrancy laws because they are ‘disproportionately affected by poverty’. in their attempt to earn a living, ‘often engage in activities such as street trading’. upon arrest, they often spend longer time in pre-trial detention due to their inability to pay fines, bail or legal representation’.131 accordingly, as the acthpr held, vagrancy laws’ authorisation of the arrest of poor women without a warrant on the basis of them lacking a means of subsistence or not giving a satisfactory account of themselves undermine article 24 of the african women’s protocol, which affords protection to poor women.132 it also held that the application of vagrancy laws results in violation of women’s rights to equality, nondiscrimination and dignity.133 the court however elaborated on vagrancy laws’ violation of the right to equality and non-discrimination with reference to articles 2 and 3 of the african charter and article 3 of the african charter on the rights and welfare of the child (african children’s charter)134 and its violation of the right to dignity with reference to article 5 of the african charter. though the court’s ruling on them was from a general perspective (that is, not specifically in relation to women and girls), the provisions and the court’s holdings are of relevance to protection of the rights of women and girl children to non-discrimination and dignity. as accentuated by the court, the right to non-discrimination requires equal treatment in law and practice.135 since not all forms of differentiation are unlawful, any differentiation must be based on ‘objective and reasonable’ grounds, be ‘necessary’ and be ‘proportional’.136 however, the acthpr did not find any reasonable justification for the distinction in law between vagrants and other members of the population, a distinction that is based on economic status of those classified as vagrants and deprives them of their right to equality before the law.137 the arrest, without a warrant, and detention of 127 ibid, paragraph 4 128 ibid, paragraphs 47, 42 and 83-87. 129 see for example african charter (n 1) article 6. 130 ibid, paragraph 52. 131 ibid, paragraphs 130 and 133. 132 ibid, paragraphs 139-140 and 155(v). 133 ibid, paragraph 138. 134 african charter on the rights and welfare of the child, adopted 1 july 1990, entered into force 29 november 1999, oau doc. cab/leg/24.9/49. 135 palu vagrancy opinion (n 111) paragraph 66. 136 ibid, paragraph 67. 137 ibid, paragraphs 70 and 72-73 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 364 vagrants was found to be ‘largely unnecessary in achieving the purpose of preventing crimes or keeping people off the streets’ since there is often no connection between them and the commission of the criminal offence, and is ‘a disproportionate response to socio-economic challenges’.138 the court thus held that the formulation and application of vagrancy laws violates the rights to equality and non-discrimination in the african charter. this is because they, inter alia, criminalise the status of an individual, facilitate discriminatory and disproportionate treatment of the marginalised and underprivileged in society and deprives them of their right to equality before the law.139 the court’s ruling in this regard has been welcomed, for broadening the prohibited grounds of discrimination to include poverty, and for recognising intersectional vulnerability, bringing to light how laws historically inflict and exacerbate forms of vulnerability.140 in the context of children generally (thus including the girl child), the court further found that the enforcement of vagrancy-related laws that result in the arrest, detention and forcible relocation of children is in breach of children’s right to non-discrimination in article 3 of the african children’s charter.141 this is based on the disproportionate effect that arbitrary arrests have on marginalised and poor children. for example, street children lose livelihood means upon their forcible removal, children in conflict with vagrancy laws receive less favourable treatment compared to other children in society, and the arrest, detention and forcible removal of their parents or care givers destabilises the family and causes financial problems, with negative effect on children’s rights.142 based on the incompatibility of vagrancy laws with children’s right to non-discrimination, the arrest, detention and relocation of children on the basis of the laws/vagrancy offences also breaches the best interests of the child principle in article 4(1) of the african children’s charter.143 this is ‘a cross-cutting principle which applies to children, irrespective of status, in diverse circumstances’.144 on the right to dignity, the court also considered that the right is inherent in all without distinction and includes the right to enjoy a decent life.145 it found vagrancy laws to be incompatible with the right to human dignity under article 5 of the african charter, based on their use of terms like ‘vagabonds’, ‘rogue’, ‘disorderly’ and ‘idle’ to label people. the court viewed this as reflective of ‘an outdated and largely colonial perception of individuals without any rights and dehumanizes and degrades individuals with a perceived lower status’.146 the then forceful relocation of the labelled individuals 138 ibid, paragraphs 72 and 75. 139 ibid, paragraphs 75 and 155(iii). 140 for further reading on this, see anneke meerkotter ‘vagrancy laws and international labor standards: african reform of criminal laws’ (2021) 7 international labor rights case law 196-202, pp. 199-201. 141 ibid, paragraph 120 and 155(iv). 142 ibid, paragraphs 117119. 143 ibid, paragraphs 123 and 155(iv). 144 ibid, paragraph 122. 145 ibid, paragraphs 78 and 80. 146 ibid, paragraph 79. lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 365 also contradicts article 5, as it vilifies their dignity and, if there is use of force in the relocation process, amounts to physical abuse.147 the laws are also incompatible with the right to dignity on the basis of their unlawful interference with individuals’ efforts to build, maintain and enjoy a decent life and for permitting arbitrary arrest (arrests without warrants).148 the court also found arrests, detention and forcible relocation of vagrants to be in violation of the right to protection of the family guaranteed in article 18 of the african charter.149 this right is of particular importance to women, as one of the duties placed on states in realising the right is to eliminate discrimination against women and protect women’s rights. the court’s ruling on the right was however from the perspective of the family in general and not women in particular. the ruling is however of relevance to women who are breadwinners and their rights. it found a violation on the basis of, inter alia, separation of families and deprivation of emotional and financial support for other family members that depend on the arrested person.150 the court took into consideration the incompatibility of vagrancy laws with other rights in arriving at this conclusion, since not all arrests and detention based on law are per se impermissible.151 in addition and of relevance to advocacy efforts on women’s and girl children’s rights, as women are among the groups disproportionately affected by vagrancy laws, is the acthpr holdings on vagrancy laws’ incompatible with other rights in the african charter and african children’s charter. this was however also from a general as opposed to a women perspective, as the issues were raised generally and not specifically in relation to women. but again of relevance to women as vagrancy laws disproportionately affects their rights as confirmed by the court. due to the ‘overly broad and ambiguous nature’ of vagrancy laws, resulting in unclear conditions and reasons for arrest and detention, the court found arrests based on such laws to be arbitrary, especially if without a warrant. thus in breach of the right to liberty guaranteed in article 6 of the african charter.152 the application of vagrancy laws also breach the right to fair trial guaranteed in article 7 of the african charter. specifically, the court found law enforcement officers’ arrest of individuals under laws and soliciting information from them regarding possible criminal culpability to be at odds with the right to presumption of innocence. hence a violation of article 7 of the african charter which guarantees this right.153 forcing or exerting undue influence on those arrested (sometimes arbitrarily) under vagrancy laws to explain themselves in relation to their perceived status (as well as regarding crimes not related to vagrancy) also amounts to coercing them to make self-incriminating statements, in breach 147 ibid, paragraph 81. 148 ibid, paragraphs 80 and 82. 149 ibid, paragraphs 107 and 155(iii). 150 ibid, paragraph 105. 151 ibid, paragraph 106. 152 ibid, paragraphs 86-87 and 155(iii). 153 ibid, paragraph 94 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 366 of article 7, as the african charter implicitly proscribes self-incrimination.154 vagrancy laws are also incompatible with children’s fair trial rights guaranteed in article 17 of the african children’s charter, as the lack of clarity and ambiguity in vagrancy laws result in basic fair trial guarantees, such as an arrest being based on reasonable ground and arrests with a warrant, not being complied with.155 the enforcement of vagrancy laws further breach the right to freedom of movement in article 12(1) of the african charter.156 though limitation of this right is prescribed by vagrancy laws, the laws however fail to meet the requirements of necessity and consistency with other rights, as they are often used for crime-prevention purposes, yet other less-restrictive means exist for the prevention of crime that do not infringe on freedom of movement, including provision of ‘shelter for the homeless’ and ‘vocational training for the unemployed’.157 following its finding that vagrancy laws violate various rights, including the rights of women and children, the acthpr then elucidated on states’ obligation to amend such laws, and the nature of the obligation.158 the court opined that states’ positive obligation under the african women’s protocol, african charter, and african children’s charter is to adopt ‘all necessary measures including the adoption of legislative and other measures in order to give full effect’ to the rights guaranteed in the instruments.159 this obligation requires states to, within reasonable time, review and amend or repeal all their vagrancy and related laws in order to ensure their conformity with these treaties.160 however, necessary measures to this effect must be taken ‘in the shortest time possible’.161 the acthpr has demonstrated its role in protecting women’s rights through not only finding laws that violate their rights to be incompatible with african regional human rights standards but also requiring states to do away with such laws. the influence or reach of an advisory opinion is much wider compared to decisions in contentious cases that are binding on the specific parties to the disputes. hence, if complied with, the rights of poor and marginalised women and girls in africa, among other vulnerable groups/ persons affected by vagrancy laws as well as their mental and physical integrity would be safeguarded. the court’s role in ensuring this opinion results in real change on the ground includes monitoring and noting, in its regular report to the au assembly, the extent of compliance and recommending necessary actions by the assembly and african states. concerted regional and domestic advocacy initiatives on decriminalisation of poverty and protection of women’s rights are also necessary. 154 ibid, paragraphs 92-93 and 155(iii). 155 ibid, paragraph 128 and 155(iv). 156 ibid, paragraphs 102 and 155(iii). 157 ibid, paragraphs 99-101. 158 ibid, paragraph 152. 159 ibid, paragraphs 149-151 and 153. 160 ibid, paragraphs 154 and 155(vi). 161 ibid, paragraph 155(vi). lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 367 3.3. protection of women’s marriage and inheritance rights prevalent denial of women’s right to inherit property and land has been identified as a significant impediment to the realisation of women’s rights in africa.162 at least ‘125 million girls and women’ in the african continent have undergone child marriage.163 the covid-19 pandemic has exacerbated the situation. it has had a disproportionate impact on the socio-economic welfare of african women and girls, ‘deepening pre-exiting inequalities and structural injustices’ and causing a considerable increase in child marriages, among other abuses experienced by women and girls.164 strengthening protection of women’s marriage and inheritance rights is thus crucial. the acthpr sought to enforce women’s marriage and inheritance rights and state duty to eliminate harmful practices that negatively affect women’s rights in apdh and ihrda – a contentious case against mali, submitted by two ngos (association pour le progres et la defense des droits des femmes maliennes (apdf) and the lnstitute for human rights and development in africa (ihrda)).165 the case concerned a challenge to mali’s family code of 2011 on the basis of its incompatibility with relevant international human rights standards. it should be noted that it took just over four and a half years following the adoption of the challenged law for the case to the brought before the acthpr, but the court adopted a flexible approach to interpreting the admissibility requirement of submission ‘within a reasonable period’,166 taking the particular circumstances of the case into consideration in finding this long period to be reasonable.167 specifically, the court considered ‘that the applicants needed time to properly study the compatibility of the law with the many relevant international human rights instruments to which the respondent state is a party’ and ‘given the climate of fear, intimidation and threats that characterised the period following the adoption of the law on 3august 2009, it is reasonable to expect the applicants to have been affected by that situation as well’.168 162 abby morrow richardson, ‘women’s inheritance rights in africa: the need to integrate cultural understanding and legal reform’ (2004) 11(2) human rights brief 19-22. 163 un women, ‘realizing the african union campaign to end child marriage: emerging lessons from child marriage programming in malawi and zambia’ policy paper (2020) p. 8 https://www2.unwomen. org/-/media/field%20office%20africa/attachments/publications/2020/10/policy-paper-emerging-lessonsfrom-child-marriage-programming-in-malawi-and-zambia-en.pdf?la=enandvs=1022 (accessed 17 september 2021).. 164 african union, un commission economic commission for africa (uneca) and un women ‘gender equality and women empowerment (gewe)’ quarterly newsletter, issue no. 02 (february 2021) p. 2. 165 association pour le progrès et la défense des droits des femmes maliennes (apdf) and institute for human rights and development in africa (ihrda) v mali, application no. 046/2016, judgment (11 may 11 2018) (hereafter ‘apdh and ihrda’). 166 provided for in african charter (n 1) article 56(6). 167 apdh and ihrda (n 165) paragraphs 52-54. 168 ibid, paragraph 54. https://www2.unwomen.org/-/media/field%20office%20africa/attachments/publications/2020/10/policy-paper-emerging-lessons-from-child-marriage-programming-in-malawi-and-zambia-en.pdf?la=enandvs=1022 https://www2.unwomen.org/-/media/field%20office%20africa/attachments/publications/2020/10/policy-paper-emerging-lessons-from-child-marriage-programming-in-malawi-and-zambia-en.pdf?la=enandvs=1022 https://www2.unwomen.org/-/media/field%20office%20africa/attachments/publications/2020/10/policy-paper-emerging-lessons-from-child-marriage-programming-in-malawi-and-zambia-en.pdf?la=enandvs=1022 women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 368 on marriage rights, mali’s family code not only set the minimum age of marriage for girls at 16, with possibility for girls to be married at 15 years of age where compelling reasons exist, but also differentiated between girls and boys by setting the minimum age of marriage for boys at 18.169 article 6(b) of the african women’s protocol and article 21(2) of the african children’s charter recognise 18 years as the minimum age of marriage for both boys and girls, and the latter defines a child in article 2 as someone below 18 years of age. despite being a state party to these treaties, mali failed to comply with its obligations ‘to take all appropriate measures to … guarantee the minimum age for marriage at 18 years’, to ensure that the best interests of the child is the ‘primary consideration’ in all matters affecting the child and to prohibit child marriage.170 the court therefore found a violation of article 6(b) of the african women’s protocol and articles 2, 4(1) and 21 of the african children’s charter.171 furthermore, the court found that the manner in which religious marriages took place posed a ‘serious risks that may lead to forced marriages and perpetuate traditional practices that violate international standards’ on age of marriage and the parties’ consent.172 this was because mali’s family code did not require that religious ministers who celebrate marriages verify the parties’ consent173 and allowed for religious and customary laws on consent to be applied in the marriage celebration procedure.174 the right of ‘free consent to marriage’ was thus not upheld, in violation of article 6(a) of the african women’s protocol and article 16(1)(b) of the cedaw.175 on inheritance rights, mali’s family code allowed for the application of religious and customary law in inheritance matters as the default law, which was of concern because under islamic law, a woman gets ‘half of the inheritance a man receives’ and ‘children born out of wedlock’, unlike children born in wedlock, only get inheritance ‘if their parents so desire’.176 the court thus found that the islamic law and customary practices on inheritance contravened the right to equitable share in inheritance of property in article 21(2) of the african women’s protocol, and the right to non-discrimination and the duty to give primary consideration to the best interest of the child in inheritance matters guaranteed in articles 3 and 4 of the african children’s charter.177as the practices are discriminatory and undermine women and children’s rights, the court also found a violation of the right to non-discrimination in article 2 of the african women’s protocol and article 16(1) of the cedaw, and a violation of mali’s obligation to eliminate harmful practices or traditions towards women in article 2(2) of the african women’s protocol, articles 1(3) and 21 of the african children's charter and article 5(a) of the cedaw.178 169 ibid, paragraphs 76-77. 170 ibid, paragraphs 7-9 and 75. 171 ibid, paragraphs 78 and 135(v). 172 ibid, paragraphs 94-95. 173 in contrast, a civil status officer was required to verify consent or face sanctions for non-verification. 174 apdh and ihrd (note 165) paragraphs 89-93 and 95. 175 ibid, paragraph 135(vi). 176 ibid, paragraphs 111-112. 177 ibid, paragraphs 113-115. 178 ibid, paragraphs 120-125 and 135(vii). lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 369 the significance of this decision lies in the fact that it is the first decision on the african women’s protocol, a treaty that has been underused in rights claims. the decision therefore gives visibility to the protocol and its practical usefulness in challenging social and traditional realities (including laws and practices) that lead to discrimination against women and that manifest in violations of their rights. the decision is also reflective of the court’s competence to ask states to amend impugned legislation that violate rights. the court ordered mali ‘to amend the impugned law, harmonise its laws with the [applicable] international instruments, and take appropriate measures to bring an end to the violations established’.179 it also required mali to comply with its obligation under article 25 of the african charter ‘to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present charter and to see to it that these freedoms and rights as well as the corresponding obligations and duties are understood’.180 the court considered the finding of a violation itself to be ‘a form of reparation for the applicants’.181 the real impact of the decision is dependent on mali’s compliance with it. mali was ordered to report on implementation of the above orders ‘within a reasonable period which, in any case, should not be more than two (2) years from the date of’ the judgment.182 however, in its latest activity report to the au considered in february 2022, the acthpr reported non-compliance, adding that mali is yet to report on measures taken to comply with the court’s judgment (with the extended deadline to report on compliance lapsing).183 whether the decision will be implemented (in whole or part) remains to be seen, as there are concerns that implementation of the decision could result in civil unrest due to current social and religious values that are upheld in the country.184 hence the potential of the decision in bringing about real change on the ground has been limited by delayed/noncompliance. 4. conclusion gender inequality and violation of women’s rights exist on a continuum in the african continent (as well as globally), in both the public and private spheres and in different forms. the acthpr has a role to play in addressing this challenge. 179 apdh and ihrd (note 165) paragraph 135(x) (see also: paragraph 130). 180 ibid, paragraphs 131 and 135(xii). 181 ibid, paragraph 135(xi). 182 ibid, paragraph 135(xiii). 183 african court on human and peoples’ rights, ‘activity report of the african court on human and peoples’ rights: 1 january – 31 december 2021’, au executive council: fortieth ordinary session, doc. ex.cl/1323(xl) (20 january – 3 february 2022) paragraph 37. see also, acthpr activity report 2021 (n 68) pp. 22-23 (annex ii). 184 tetevi davi, ‘african court on human and peoples’ rights delivers landmark ruling on women’s rights and the rights of the child in mali’ ejil:talk (27 july 2018) https://www.ejiltalk.org/african-courton-human-and-peoples-rights-delivers-landmark-ruling-on-womens-rights-and-the-rights-of-the-child-inmali/ (accessed 18 october 2021). https://www.ejiltalk.org/african-court-on-human-and-peoples-rights-delivers-landmark-ruling-on-womens-rights-and-the-rights-of-the-child-in-mali https://www.ejiltalk.org/african-court-on-human-and-peoples-rights-delivers-landmark-ruling-on-womens-rights-and-the-rights-of-the-child-in-mali https://www.ejiltalk.org/african-court-on-human-and-peoples-rights-delivers-landmark-ruling-on-womens-rights-and-the-rights-of-the-child-in-mali women’s representation and rights in the african court the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 370 women’s representation on the acthpr’s bench and the court’s enforcement of women’s rights is important to illustrating its role in addressing and advancing women’s rights and gender equality in africa. the court has facilitated gender representation through, inter alia, adopting new rules explicitly requiring adherence to gender equality in the appoint of judges and other key staff. the court has achieved gender balance on its bench but is yet to achieve substantive equality in leadership positions of the court. more women judges need to be given the opportunity to lead the court through their election to the bureau of the court. also, the female judges mainstreaming since the past three years is yet to facilitate gender representation in other key arms of the court such as leadership positions in its registry. further, the court has helped advance women’s rights through its jurisprudence (advisory and contentious). the jurisprudence of the court shows very scant but significant rulings on women’s rights (as well as rights in general in relation to issues such as vagrancy laws that disproportionately affect women). the court has underscored the practical value of the african women’s protocol, among other treaties, in protecting women’s rights. the real impact of the court’s decisions in advancing women’s rights is dependent on their effective implementation, which at present looks bleak. there has been non-compliance thus far with the women’s rights decisions and the court is faced with a general compliance crisis as confirmed in its latest activity report. the court has shown a glimpse of its potential to uphold women’s rights; a record that requires expansion so as to further reinforce and strengthen women’s rights in the continent. the court would be able to expand on its women’s rights jurisprudence and, hopefully, continue to protect the rights of women in africa, if more cases on women’s rights/issues are brought before it. to facilitate this, factors that limit access to the court or the ability of victims to bring cases to the court need to be addressed. for instance, states parties to the acthpr protocol need to enter the relevant article 34(6) declaration in order to facilitate access to the court, and states parties and relevant treaty bodies need to bring cases or legal questions on women’s rights to the court. in the absence of direct access for ngos and individuals, the acmhpr has a role to play in facilitating access through bringing cases of women’s rights violations to the court. the acmhpr and the acerwc should also make use of their standing to bring legal questions relating to women’s rights to the court through its advisory jurisdiction. effective use of these opportunities by the acmhpr and acerwc will not only fill the gap in access but also provide the court with an opportunity to advance women’s rights through its jurisprudence. also, the au, states and civil society organisations have a role to play in raising awareness of the rights in the african women’s protocol and mechanisms available to victims in cases of violations or non-implementation of decisions affecting them. states that have not ratified the african women’s protocol need to demonstrate their commitment to the au’s goal of achieving universal ratification of the treaty by acceding to or ratifying the protocol. this would facilitate access to remedies where actions contrary to the treaty are undertaken by the states or non-state actors under their control. failing which, opportunities to hold the states accountable are limited. lilian chenwi the age of human rights journal, 18 (june 2022) pp. 345-375 issn: 2340-9592 doi: 10.17561/tahrj.v18.6896 371 references african commission on human and peoples’ rights (2022). ‘combined 50th and 51st activity reports of the african commission on human and peoples’ rights’. https://www.achpr.org/activityreports/viewall?id=53 african court on human and peoples’ rights (2017). ‘activity report of the african court on human and peoples’ rights: 1 january – 31 december 2016’, au executive council: thirtieth ordinary session, doc. ex.cl/999(xxx) (2227 january 2017). african court on human and peoples’ rights (2021). ‘activity report of the african court on human and peoples’ rights: 1 january – 31 december 2020’, au executive council: thirty-eight ordinary session, doc. ex.cl/1258(xxxviii) (3–4 february 2021). african court on human and peoples’ rights (2022). ‘activity report of the african court on human and peoples’ rights: 1 january 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https://www.unwomen.org/en/digital-library/publications/2020/04/policy-brief-the-impact-of-covid-19-on-women https://www.unwomen.org/en/digital-library/publications/2020/04/policy-brief-the-impact-of-covid-19-on-women https://doi.org/10.1093/acprof:osobl/9780199645589.001.0001 https://doi.org/10.1093/acprof:osobl/9780199645589.001.0001 https://doi.org/10.1017/s0020589317000513 women’s representation and rights in the african court abstract 1. introduction 2. women’s representation on the court’s bench 3. women’s rights in the court’s jurisprudence 3.1. bringing legal matters/cases on women’s rights: some constraints 3.2. protection of the rights of poor and marginalised women 3.3. protection of women’s marriage and inheritance rights 4. conclusion references human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 165 human trafficking in west africa: an assessment of the implementation of international and regional normative standards daniel ogunniyi1 oladimeji i idowu2 abstract: it is now over 20 years since the palermo protocol was adopted as a global mobilisation tool to combat human trafficking. although all 15 west african states have widely ratified the palermo protocol, the implementation of the instrument in the sub-region remains unclear. also, beyond the palermo protocol, a systematic assessment of other anti-trafficking mechanisms available in west africa is non-existent. thus, this study has two core objectives: the first is to chronicle the key anti-trafficking instruments and their relevance in west africa, while the second aspect engages with how those norms are translated at the domestic level in three west african countries, namely, ghana, nigeria, and senegal. the study finds that human trafficking has remained resilient both at sub-regional and domestic levels despite the legal efforts to end it. relevant trends and implementation deficits are identified across the three states, while recommendations for effective anti-trafficking governance are offered. keywords: human trafficking, palermo protocol, treaty implementation, senegal, ghana, nigeria, west africa. summary: 1. introduction. 2. an overview of human trafficking trends and patterns in west africa. 3. international and regional instruments for combatting human trafficking in west africa. 4. human trafficking in nigeria. 4.1. legislative prohibition and anti-trafficking governance in nigeria. 4.2. human trafficking prosecutions in nigeria. 5. human trafficking in ghana. 5.1. legislative prohibition and antitrafficking governance in ghana. 5.2. human trafficking prosecutions in ghana. 6. human trafficking in senegal. 6.1. legislative prohibition of human trafficking in senegal. 6.2. human trafficking prosecutions in senegal. 7. conclusion. 1. introduction although the proliferation of human trafficking has caught the public’s attention in more recent years, little is known on the implementation of anti-trafficking treaties and relevant policy instruments in west africa. the west african region has long experienced high levels of regular and irregular migration, which has created a market for traffickers. historically, trafficking studies have focused mainly on extra-regional trafficking as opposed to a sub-regional level assessment in west africa. to date, the literature on the subject has not sufficiently engaged with the implementation of specific international standards via trafficking prosecution and the contributions of national anti-trafficking 1 wilberforce institute for the study of slavery and emancipation and the school of law, university of hull, united kingdom (d.ogunniyi@hull.ac.uk). 2 faculty of law, redeemer’s university, ede, nigeria (idowui@run.edu.ng). mailto:idowui%40run.edu.ng?subject= human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 166 agencies. the present study aims to fill this void, first, by studying the trends, patterns, and regional instruments in west africa. beyond the study of the existing normative instruments, the study aims to assess states' compliance to those standards, focusing mainly on prosecution. in many ways, understanding the current implementation deficits might help provide more coherent responses to the phenomenon. as a starting point, the study focuses on human trafficking from a regional perspective to demonstrate the relevant trends and patterns. next, the international and regional governing instruments are assessed. this aspect begins by assessing article 3 of the united nations protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime (the palermo protocol), to provide a definitional framework for subsequent analysis at the country-level. the palermo protocol is also studied as most regional and national normative standards derive their inspiration from and often make direct reference to the protocol. other instruments including the african charter on human and peoples rights, the ecowas common approach on migration of 18 january 2008, the ouagadougou action plan to combat trafficking in human beings, especially women and children, and the 1979 protocol relating to the free movement of persons and the rights of residency and establishment and its supplementary protocols are also studied. these instruments show the level of sub-regional engagement with anti-trafficking governance in west africa. following the sub-regional level assessment, which offers a cross-cutting overview across the region, the study then focuses on specific countries. as the ecowas sub-region comprises 15 member states, choices have to be made on countries to be studied, given the non-feasibility of studying all 15 countries in-depth. three countries were randomly selected among the anglophone and francophone nations, i.e., ghana, nigeria, and senegal. the country-level sections provide deeper insight into the anti-trafficking framework of relevant countries, including the laws, policies, and their implementation. efforts are also made to understand the implementation challenges in the countries. 2. an overview of human trafficking trends and patterns in west africa west africa has long been characterised by high levels of intra and extra-regional migration, a trend that predates the establishment of borders by colonial powers (migration data portal 2021). human trafficking manifests itself within this migration complex in diverse forms and affects both children and adults. the west african region is recognised to produce some of the highest numbers of trafficking victims in destination countries outside africa, especially in europe and the middle east (sawadogo 2012, p. 100; ogunniyi 2018, p. 463), while the majority of victims are trafficked within africa (sowale 2018, pp. 215-225). research demonstrates the influence of economic and cultural practices in perpetuating trafficking and creating a market for traffickers in the region (bales 2007. p. 269). transnational organised crime is deeply entrenched across west africa, of which trafficking in human beings is a dominant variant. generally, the activities of criminal networks undermine any prospects for the rule of law in the region and challenge broader efforts to achieve human and economic development. criminal networks in the region often exploit the weak infrastructure at state daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 167 levels, porous borders and also benefit from the trade and market integration in west africa (international centre for migration policy development). trafficking in west africa often shows age and gender patterns. a recent research by united nations office on drugs and crime (unodc) reveals that more than 75% of trafficking victims detected in west africa are children (unodc nigeria 2021). the research also shows that a higher proportion of trafficking victims are detected in west africa compared to other countries in sub-saharan africa. the majority of the victims are children trafficked for the purpose of forced labour (unodc nigeria 2021). although in many low-income countries (including west african countries), most children are more likely to be trafficked and exploited in forced labour. this contrasts with high-income countries, where children are more likely to be trafficked for sexual exploitation. there is, indeed, a correlation between the general prevalence of child labour in west africa and the total number of children detected among trafficking victims (unodc 2020, p. 82). regarding the profile of trafficking victims, compared to other regions across africa, west africa has the highest number of trafficked children with increasing numbers of adult victims. across the population of child victims detected, for instance, the practice disproportionately affects 1164 girls and 1389 boys in west africa, compared to 49 girls and 109 boys in east africa, and 62 girls and 60 boys in southern africa (unodc 2020, p. 165). more specifically, cases have been documented in west africa of children trafficked to work in mines and quarries, on plantations, and to undertake domestic work. also, there is evidence that traffickers from the west african region control and dominate the commercial sex business in the hillbrow area of johannesburg and other urban areas across south africa (bello and sowale 2018 pp. 215-225). although this study particularly focuses on human trafficking within the west africa region, it is nonetheless worth mentioning that 17% of trafficking victims detected in north africa originate from west africa, while 7% of the victims in east africa are from west africa, affirming the extraregional reach of human trafficking in west africa (africa centre for strategic study 2021). it is further estimated that 3.5 million africans are human trafficking victims at any given moment, of which 99% of victims detected in west africa are trafficked within the sub-region or in their own country (africa centre for strategic study 2021). 3. international and regional instruments for combatting human trafficking in west africa human trafficking is a complex crime requiring a coherent response strategy. although several legal and policy instruments have been concluded at the ecowas3 and african regional levels, this section begins by analysing the key thematic instrument at the international level, i.e., the palermo protocol, which all ecowas member states have 3 the economic community of west african states (ecowas) comprised of fifteen countries is a regional political and economic union of states in the west african sub-region. members include benin, burkina faso, cabo verde, cote d’ivoire, the gambia, ghana, guinea, guinea bissau, liberia, mali, niger, nigeria, senegal, sierra leone, and togo. human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 168 ratified. the legal definition and elements of the crime are spelled out in article 3(a) of the palermo protocol, which further provides a framework for assessing and addressing the crime in the sub-region. article 3 of the palermo protocol states that human trafficking is: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.4 the article clearly spells out the act, means, and purpose elements of human trafficking,5 and national implementing legislation should, in principle, include these elements for effective anti-trafficking governance. article 3 further states that the consent of a victim to the exploitative act is irrelevant where the indicated means are used.6 in other words, where a victim consents to a trafficking act, but there is evidence of coercion, deception, abduction, etc., the act still qualifies as human trafficking, as external factors induced the consent. moreover, the recruitment, transfer, transportation, or harbouring of a child for exploitative purposes constitutes human trafficking even if the identified means are not used.7 nevertheless, the palermo protocol is rather limited in scope. it mainly targets transnational trafficking by organised criminal groups without engaging with the domestic variants (bales 2007, p. 271), which can be equally exploitative.8 the instrument further excludes the prospect of human trafficking by individuals who are not working within an organised criminal group. it is noteworthy that while there is limited guidance for assessing this provision at the african or west african sub-regional level, elsewhere in europe, the european 4 article 3, un general assembly, protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime, 15 november 2000, (palermo protocol). 5 the act elements include the ‘recruitment, transportation, transfer, harbouring or receipt of persons’. the means elements are ‘threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person’. the purpose element is exploitation. kevin bales, ‘what predicts human trafficking?’ (2007) 31(2) international journal of comparative and applied criminal justice, 271. 6 article 3(b) palermo protocol 7 article 3(c) palermo protocol 8 article 4 of the palermo protocol states ‘this protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this protocol, where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences.’ daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 169 court of human rights in sm v croatia assessed the obligation of croatia to address domestic trafficking committed by a single individual not acting in an organised grouping. in this regard, the court characterised trafficking as a crime possessing both national and transnational elements,9 broadening its scope beyond the transnational context. it is, nevertheless, noteworthy that the court’s reasoning accords with article 2 of the council of europe convention on action against trafficking in human beings, which states that ‘this convention shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime.’ while the jurisprudence on the subject may be somewhat limited in west africa and even in africa, as indicated further below, the regional and sub-regional instruments adopted in africa and west africa demonstrate that trafficking possesses domestic and transnational elements. individuals not acting in an organised group may also undertake the crime. at the african regional level, article 5 of the african charter states that ‘every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment, and treatment shall be prohibited.’ although the charter contains no explicit clause prohibiting human trafficking, the african human rights commission has pointed out that implementation of the right to work under the african charter requires states to ‘prohibit slavery and forced labour, which includes all forms of work or service exacted from any person under the menace of any penalty and/or for which the said person has not offered himself/herself voluntarily. it also includes all forms of economic exploitation of children and other members of vulnerable and disadvantaged groups (african commission on human and peoples’ rights, p.59). human trafficking may arguably fit within this context. further, the protocol to the african charter on human and peoples' rights on the rights of women in africa (maputo protocol) require states parties to ‘prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk’. clearly, the maputo protocol has a limited scope, as it solely addresses the protection of women. however, the characterisation of trafficking into perpetration by organised groups or those with transnational elements does not manifest in the maputo protocol. although article 5 of the african charter has been rarely litigated before the ecowas court of justice or even the african court on human and peoples' rights, consistent with the approach of the african human rights commission noted above, it is clear that the article imposes a positive obligation on states to prevent human trafficking in their jurisdictions.10 it is also noteworthy that although the protection of human dignity 9 s.m. v. croatia, (application no. 60561/14) european court of human rights 10 at the european level, the european court of human rights noted in ti v greece, a case which involved the trafficking of russian women for prostitution in greece, that the anti-trafficking provision of the european court of human rights imposes on states parties a series of positive obligations including the protection of the victim of trafficking see t.i. and others v. greece (no. 40311/10) european court of human rights, 28 june 2010. human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 170 and the prohibition of exploitation and degradation are legally autonomous, although related concepts, they are not clearly distinguished under article 5 (viljoen and odinkalu 2014, pp.48–49). the african human rights commission has noted explicitly that cruel, inhuman, or degrading treatment and torture are to be interpreted so as to extend to the widest possible protection against abuses, whether physical or mental.11 the commission further noted that article 5 includes ‘not only actions which cause serious physical or psychological suffering, but which humiliate or force the individual against his will or conscience’.12 the expansive approach taken by the commission would certainly cover the prohibition of human trafficking. aside from the instruments mentioned above, in 2008, the ecowas authority of heads of state and government adopted the ecowas common approach on migration. although a non-binding instrument, the document provides strategic guidance on certain priority areas to effectively manage migration and human trafficking in west africa. the common approach addresses six principles and thematic areas, including a) free movement of persons within the ecowas zone; b) legal migration of citizens to other regions as relevant to development; c) combating human trafficking; d) harmonisation of policies; e) protection of the rights of migrants, asylum-seekers and refugees; and f) recognising the gender dimension of migration.13 more specifically, the common approach advocates for interstate cooperation and considers the adoption of the palermo protocol by ecowas member states as integral to the sub-regional efforts to combat human trafficking. member states are also required to strengthen their mechanisms for protecting and assisting the victims of human trafficking, a provision consistent with article 6 of the palermo protocol. in this regard, article 6(2) of the palermo protocol provides that ‘each state party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases information on relevant court and administrative proceedings.’ article 6(3) further requires states parties to ‘consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons.’ these include the provision of adequate housing, counseling, medical and psychological support, and employment and training opportunities. further, the 1979 ecowas protocol relating to free movement of persons, residence, and establishment removed the restrictions to the movement of persons within the sub-region. to, inter alia, safeguard the rights of ecowas citizens and prevent exploitations linked to the ease of movement, a supplementary protocol was 11 communication 292/04, institute for human rights and development in africa (on behalf of esmaila connateh & 13 others) v angola, 22 may 2008, para 52; communication 236/00, curtis francis doebbler v sudan, 4 may 2003, para 37; communication 224/98, media rights agenda v nigeria, 6 november 2000, para 71. 12 communication 236/00, curtis francis doebbler v sudan, 4 may 2003, para 36. 13 ecowas commission, ‘ecowas common approach on migration’, 33rd summit of the head of state and government, ouagadougou, 18 january 2008. daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 171 adopted in 1986. the supplementary protocol called on ecowas member states to cooperate in preventing ‘illegal or clandestine movement and employment of migrant workers whose status is irregular.’14 this provision is beneficial, at least in theory, in preventing transnational trafficking within the sub-region, especially regarding irregular migrants. furthermore, the ouagadougou action plan to combat trafficking in human beings, especially women and children, was adopted in tripoli in 2006 by the ministerial conference on migration and development. it is a collaborated international framework between europe and africa to expedite action to prevent, suppress, and punish trafficking in human persons. the action plan upholds the palermo protocol, particularly concerning calls for the establishment of bilateral and multilateral cooperation and coordination in the campaign against human trafficking (atuguba 2005). the action plan affirmed in its general principles that ‘trafficking in human beings, within and between states, is a scourge which states are determined to address’. also, measures adopted by states to prevent and combat human trafficking must be consistent with human rights standards, including protection of victims and respect for the best interest of the child as recognised in international law. certain specific factors were also identified as inducing human trafficking, such as wealth inequality, poverty, unemployment, armed conflicts, bad governance. the action plan calls upon states to develop strategies via prevention and awareness-raising, victim protection and assistance, and legislative/policy framework development to address the identified root causes. although reference is made to the palermo protocol, the action plan does not particularly construe human trafficking from the prism of organisation and transnationality. also, the ecowas convention on mutual assistance in criminal matters was adopted on 29 july 1992. article 2 of the instrument urges ecowas countries to afford to each other ‘the widest measure of mutual assistance in proceedings or investigations in respect of offences the punishments of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting member state.15 assistance may be offered to achieve the forfeiture and confiscations of crime proceeds, to provide information and evidentiary items, etc. this provision is particularly relevant for effectively prosecuting trafficking offences in west africa. in short, in addition to the palermo protocol, ecowas countries have developed several complementary frameworks to address both the domestic and transnational elements of the crime. the approach to human trafficking governance in west africa seems to be underpinned by certain strategies such as consensus building on standards, cooperation in criminal justice, social protection, education, and capacity building. in what follows, we assess the implementation of relevant normative standards at the domestic level in nigeria, ghana, and senegal. 14 article 22 supplementary protocol on the second phase (right of residence) of the protocol on free movement of persons, the right of residence and establishment, 1986. 15 article 2, ecowas convention on mutual assistance in criminal matters of 29 july 1992 human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 172 4. human trafficking in nigeria evidence suggests that nigeria is one of the largest human trafficking hubs in the world (devatop centre 2020). according to the international organisation for migration (iom), human trafficking is a wicked global business that involves kidnapping people to enslave them and robbing millions of these people, primarily women and children, of their freedom.16 this captures the nature of human trafficking in nigeria. historically, the 15th century trans-atlantic slave trade was the real beginning of human trafficking problems in nigeria (naptip 2020, p. 20). although the british parliament banned the trading of human persons in 1807, human trafficking has over time evolved as a modern-day form of slavery in nigeria,17 where victims across the 36 states of the country are defrauded and often forced into various forms of exploitation. this results in the treatment of humans as expendable commodities.18 in nigeria, experts have noted that trafficking in persons occurs within the country and transnationally. research demonstrates that 75% of individuals trafficked within nigeria are trafficked across states, while 23% are trafficked within states, and only 2% of victims are trafficked outside the country (pathfinders justice initiative, 2021). for instance, the sokoto state command of the national agency for the prohibition of traffic in persons in august 2021 reunited 22 victims of human trafficking rescued from the niger republic with their families (innocen 2021). the rescued children were from lagos, ondo, ogun, oyo, osun, ekiti, imo, delta, and edo states.19the success of the operation was attributed to the collaboration of the nigerian immigration service (nis) and their counterpart in the niger republic. the the majority of the victims were enticed by their traffickers to travel to tripoli in libya through the sokoto-niger republic route.20 thus, most trafficking victims usually find their way to kano, from where they would be smuggled into niger or algeria before traversing 500 miles over the sahara desert into libya (pathfiders justice initiative, 2021). following this trend, in 2017 alone, a total of 18,000 nigerian migrants were recorded to have arrived in europe via the mediterranean sea, of which 5,400 were women. this demonstrates the complexity of human trafficking both as a sub-regional crime in west africa and a crime with extra-regional ramifications in europe. in addition to the preceding trends, the iom noted another feature of nigerian trafficking, which is that it is organised primarily by women. many of the traffickers have themselves been trafficking victims at one time or the other (international migration organization 2021). unfortunately, poverty remains the number one factor rendering people vulnerable to trafficking in nigeria. other factors include parental pressure, eroded values, cultural acceptance of prostitution, limited education, etc. 16 how iom is reducing human trafficking in ghana, <https://borgenproject.org/human-trafficking in-ghana/> accessed 7 november 2021. 17 ibid; what is human trafficking? | south texas college, https://academicaffairs.southtexascollege.edu/ womens_studies/conference/human_trafficking.html accessed 7 november 2021 18 exploratory assessment of trafficking in persons in the caribbean region, <https://publications.iom.int/ system/files/pdf/exploratory_assessment2.pdf> accessed 31 october 2021 19 ibid. 20 ibid. https://borgenproject.org/human-trafficking-in-ghana https://borgenproject.org/human-trafficking-in-ghana https://academicaffairs.southtexascollege.edu/womens_studies/conference/human_trafficking.html https://academicaffairs.southtexascollege.edu/womens_studies/conference/human_trafficking.html https://publications.iom.int/system/files/pdf/exploratory_assessment2.pdf https://publications.iom.int/system/files/pdf/exploratory_assessment2.pdf daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 173 4.1. legislative prohibition and anti-trafficking governance in nigeria per article 5 of the palermo protocol, which mandates states parties to criminalise trafficking in persons as defined in article 3 of the protocol, nigeria enacted the trafficking in persons (prohibition) law enforcement and administration act, 2003.21 this act was subjected to an amendment in december 2005.22 furthermore, in 2015, the 2005 act was further repealed, and a new statute, trafficking in persons (prohibition) enforcement and administration act 2015 (tiplea 2015), was enacted.23 the new act has 83 sections and two schedules and conspicuously expanded the definition of trafficking in persons to include trafficking for organ harvesting, which includes ritual killings. section 82 of tiplea 2015 defines human trafficking as follows: the recruitment, transportation, transfer, harbouring or receipt of persons by means of threat or, use of force or other forms of coercion , abduction, fraud, deception, the abuse of power of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person or debt bondage for the purpose of placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in forced or bonded labour, or in slaverylike conditions, the removal of organs or generally for exploitative purposes. the above definition is consistent with the palermo protocol to the extent that it provides for the three key constituent elements of the offence of human trafficking, i.e., the act, means, and purpose of trafficking in persons. as stated earlier, the definition particularly captures human trafficking partly or solely for organ harvesting, a notorious crime in nigeria that encompasses ritual killings (igwe 2004). in a bid to specifically address the issue of child trafficking, section 13(6) of the act provides that the recruitment, transfer, harboring, transportation, or receipt of a child for the purpose of exploitation shall constitute the offence of human trafficking even if the trafficking does not involve any of the means spelled out in section 82, as long as other constituents elements are complete, the offence of trafficking in persons shall crystallise.24 this provision effectively translates article 3(c) of the palermo protocol. it is pertinent to note that the act created the national agency for the prohibition of traffic in person (naptip).25 naptip is the specific statutory institution mandated to coordinate all efforts to eliminate trafficking in persons in nigeria. the body performs its functions in collaboration with other local law enforcement agencies and partners.26 21 prior to the ratification of the organized crime convention and the trafficking in persons protocol and the migrants protocol, nigerian law, including the penal code, the criminal code, the labour act and the immigration act, had criminalized various offences relating to human trafficking, but the legislation was widely seen as ineffective. in 2003, the trafficking in persons (prohibition) law enforcement and administration act, 2003 was adopted. 22 the sections amended are: sections 1, 2, 3, 4, 5, 6, 9, 15, 22, 29, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 36, 47 and 48. 23 trafficking in persons (prohibition) enforcement and administration act. no. 4 2015. 24 the act defined a child to be a person below the age of 18. see section 82. 25 section 2, tiplea 2015. 26 section 5, tiplea 2015. human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 174 4.2. human trafficking prosecutions in nigeria in nigeria, over 550 traffickers have been jailed with many cases at various prosecution stages in courts across the country (naptip 2021). also, over 17,000 victims have been rescued, and a good number of them trained and empowered.27 the preceding efforts, among others, informed nigeria’s upgrade to the tier 2 list in the us 2021 tip report (united states department of state 2021 tip report).28 nigeria is, thus, making efforts towards the fulfillment of the required minimum standards in the mitigation of human trafficking in the country. generally, the trafficking in persons law enforcement and administration act 2015 criminalised sex trafficking as well as labour trafficking and prescribed a minimum penalty of two years imprisonment and a fine of 250,000 naira ($600) for these offences. however, where the offence is a case of sex trafficking involving a child victim, the minimum penalty as stipulated under the act is seven years imprisonment and a fine of 1 million naira ($2400).29 it is noteworthy that in 2020 and early 2021 alone, federal and state authorities in nigeria investigated 409 human trafficking cases, prosecuted 49 suspects, and convicted 36 traffickers under the tipleaa act (united states department of state 2021 tip report, p. 424). also, 23 traffickers were sentenced to average terms of imprisonment of three and half years with no option of fines. in addition, three traffickers were sentenced to terms of imprisonment or fines, while two traffickers were ordered to pay restitution of 100,000 naira ($240) and 300,000 naira ($720) (united states department of state 2021 tip report, p. 424). moreover, in 2021, the courts in nigeria showed more commitment to combating the menace of trafficking in persons by convicting the country’s first accused of the offence of conspiracy relating to human trafficking and relying solely on digital evidence to convict trafficking offenders.30 a further effort made by naptip in 2021 involved partnering with the united nations office on drugs and crime (unodc) to enhance and strengthen prosecution of trafficking in person cases in nigeria and complete the establishment of a judicial research center in abuja. the said research centre provides naptip’s officers with much-needed access to resources such as databases, research books, law reports, and journals. therefore, it is expected that naptip’s capacity to prosecute human trafficking will be significantly improved. 5. human trafficking in ghana forced labour and sex trafficking are the two most prominent types of trafficking in person in ghana (united states of america department 2021 tip report, p 256). a study by iom has, for instance, documented the different means by which children are forced to work in the fishing industry in ghana (international organisation for migration 2021, p.1). 27 ibid. 28 in 2019, nigeria was downgraded to tier 2 watch. however, in light of various strides made despite the onset of the covid-19 pandemic in 2020, nigeria was upgraded to tier 2. 29 ibid 30 ibid. daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 175 the us department of states, also in its 2021 trafficking in persons report, revealed that ghana is a country of origin, transit, and destination for men, women, and children who are subjected to forced labour and sex trafficking. (united states of america department 2021 tip report, p 256). the report stated further that ghanaians, particularly children, are exploited locally more than transnationally.31 in ghana, the movement of internally trafficked children usually occurs either from rural to urban areas or from one rural area to another. for instance, ghanaian children are usually internally trafficked from farming to fishing communities. therefore, transnational trafficking of foreign migrants is relatively low compared to the trafficking of ghanaians within the country. apart from the way people, particularly children in ghana, are subjected to forced labour within the fishing industry, exploitation also manifests itself in the domestic service sector, the agricultural industry, street hawking, quarrying, herding, artisanal gold mining, and pottering.32 in 2019, for instance, the government of ghana identified 348 potential victims of trafficking, out of which 252 were children. again, out of the 348 persons, the ghana police service confirmed that 242 were potential victims of labour trafficking. these were all ghanaians, and nearly all of them were children. (united states of america department tip report 2019). thus, child trafficking is deeply entrenched in ghana (johansen 2021). in a bid to neutralise the menace of domestic trafficking, the government of ghana continues to make frantic efforts. the 2021 us department of state trafficking in persons report classified ghana in the tier 2 ranking in acknowledgment of these efforts. the report states: the government of ghana does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. the government demonstrated overall increasing efforts compared to the previous reporting period, considering the impact of the covid-19 pandemic on its anti-trafficking capacity; therefore ghana remained on tier 2. the efforts referred to above include securing more convictions of labour traffickers, opening a dedicated shelter for trafficking victims, particularly children, and increasing funding for victim services, training law enforcement officials, judicial officials, leaders in the communities, and holding public awareness-raising activities.33 the report, however, scored ghana low for not meeting the minimum standards in several key areas, including the fact that the government of ghana did not prosecute or convict any alleged sex traffickers and identified fewer victims. also, there was a lack of adequate resources for law enforcement while shelter capacity remained insufficient. 5.1 legislative prohibition and anti-trafficking governance in ghana although the government of ghana ratified the palermo protocol in august 2012, a national anti-trafficking legislation, the anti-human trafficking act, had been adopted 31 united states of america department 2021 tip report, p 256. 32 ibid. 33 ibid. human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 176 in 2005. the government had also established an anti-human trafficking unit within the police force. in 2016, ghana launched its national migration policy, through which it developed some policy objectives and strategies to combat trafficking in persons.34 thus, ghana’s human trafficking act35 was enacted to address human trafficking activities within, from, and through ghana. the act’s composition was mainly guided by the palermo protocol (manda, and heemskerk 2011). the definition of human trafficking provided in section 1 of the act is as follows: human trafficking means the recruitment, transportation, transfer, harbouring, trading or receipt of persons within and across national borders by (a) the use of threats, force or other forms of coercion, abduction, fraud, deception, the abuse of power or exploitation of vulnerability, or (b) giving or receiving payments and benefits to achieve consent. exploitation shall include at the minimum, induced prostitution and other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. placement for sale, bonded placement, temporary placement, placement as service where exploitation by someone else is the motivating factor shall also constitute trafficking. where children are trafficked, the consent of the child, parents or guardian of the child cannot be used as a defence in prosecution under this act, regardless of whether or not there is evidence of abuse of power, fraud or deception on the part of the trafficker or whether the vulnerability of the child was taken advantage of.36 going by the above definition, it is noteworthy that the legislation, like the palermo protocol, comprises three important components of counter-trafficking legislation: (1) prevention of human trafficking, (2) protection of trafficked persons, and (3) prosecution of traffickers (manda, and heemskerk 2011). however, the definition provided under the act covers more in terms of the chain of crime than that of the palermo protocol as it includes trading in persons. it is also an offence, under the act, for anyone to use the services of a trafficked person.37 moreover, just like the palermo protocol, it is clear that when the offense of trafficking involves a child, consent is not required regardless of whether the child or parents, or guardians agreed to it. thus, the act is clear that parental consent is no defence to a charge of trafficking. furthermore, as the human trafficking act 2005 definition did not interpret exploitation which was the end purpose for trafficked victims, an amendment was introduced to the act in 2009. the amendment was therefore done to strengthen the definition to include exploitation. also, because of the legal limitation attached to the term “deported,” which was initially used in drafting section 35 of the act, 34 the npa, led by the ministry of gender, children and social protection has sought to combat human trafficking in ghana within five years thus from the year 2017 to the year 2021. 35 human trafficking act, 2005 (act 694) (ghana). 36 human trafficking act, 694, 2005, section 1. 37 section 4, human trafficking act, 2005 (act 694) (ghana). daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 177 the term “extradited” was used to replace “deported” to facilitate effective prosecution of trafficking offences (asare 2015). more so, the us department of immigration as a way of distinguishing deportation from extradition states: generally, deportation is the process of arresting and expelling a foreign national back to the country of origin for violations of a nation's immigration laws, whereas extradition is the process of handing over an individual, without regard to citizenship, to another country seeking to prosecute that individual for crimes under that nation's laws (united states center for immigration studies 2018). the amended section 35 provides, ‘subject to the extradition act, 1960 (act 22), a non-citizen convicted of trafficking in persons under a provision of this act shall be extradited from the republic’.38 the act, thus, took note of the difference between the terms “deported” and “extradited”, and now under the amended act, apart from foreigners who are involved in the crime of trafficking in person, ghanaians can also be handed over to another country seeking to prosecute them for trafficking in persons related crimes under that nation's laws. it is also pertinent to note that in 2005 and 2008, the government created the antihuman trafficking unit and secretariat within the ministry of gender and ghana police service solely to combat trafficking in ghana. regrettably, evidence suggests that the government of ghana failed to effectively address corruption in trafficking crimes and did not amend the anti-trafficking act and its regulations to remove the provisions which allow the option of paying a fine instead of a term of imprisonment in a situation where the trafficker is a parent or guardian of the child victim (u.s. department of state trafficking in persons report june 2021, p. 254). however, it is laudable that the act mandates a minimum sentence of five years imprisonment for trafficking perpetrators, outlines provisions for victim protection and support, creates a human trafficking fund (fund) to finance this protection and support, and establishes a human trafficking management board to spearhead counter-trafficking efforts. in addition, in 2015, ghana signed the child protection compact partnership with the united states to help fight child trafficking, particularly the aspect of forced child labour within ghana and child sex trafficking (u.s.-ghana child protection compact (cpc) partnership, 2015–2020). furthermore, ghana signed an agreement with cote d’ivoire in 2016 to formally establish a cooperation between the two countries with respect to the fight against trafficking in persons.39 the document entitled ‘cooperation agreement to combat cross-border child trafficking and the worst forms of child labour’ was the first bilateral agreement ghana signed with the aim of combating human trafficking. 38 section 35, human trafficking act, 2005 (act 694) (ghana). 39 ghana and cote d' ivoire sign agreement to fight child trafficking https://allafrica.com/stories/2016110711 96.html;https://www.warnathgroup.com/wp-content/uploads/2017/01/cooperation-agreement-to-combatcross-border-child-trafficking.pdf accessed 8/11/2021. https://allafrica.com/stories/2016110711 https://www.warnathgroup.com/wp-content/uploads/2017/01/cooperation-agreement-to-combat-cross-border-child-trafficking.pdf https://www.warnathgroup.com/wp-content/uploads/2017/01/cooperation-agreement-to-combat-cross-border-child-trafficking.pdf human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 178 5.2. human trafficking prosecutions in ghana the 2005 human trafficking act, which was amended in 2009, criminalised sex trafficking and labour trafficking and prescribed penalties of a minimum of five years’ imprisonment for offenders. however, in ghana, legislation is usually implemented through regulations, generally known as legislative instrument (li), which details the processes and procedures employed in enforcing the law. thus, a regulation was adopted in 2015 to enforce the 2005 human trafficking act. the regulation is nondiscretionary, has the force of law, and provides specific guidance on sentencing depending on the circumstances of each case. generally, under the regulation, the term of imprisonment upon conviction for trafficking in person’s charges is not less than five years and not more than 25 years. however, if a parent, guardian, or other people with parental responsibilities and authorities facilitate or engage in human trafficking, they are liable for 10 years’ imprisonment, a fine, or both. the regulation, therefore, allows for a fine instead of imprisonment concerning trafficking offences committed by parents or guardians or other people with parental responsibilities and authorities. regarding the implementation of the 2005 human trafficking act and its 2015 regulation, in 2021, the us department of states presented a comprehensive report which assessed both the successes and shortcomings of efforts by the ghanaian government to combat human trafficking in the country (us department of states trafficking in persons report, 2021). according to the said us department of states report, the government of ghana, in 2020, investigated 87 trafficking in person cases, including 63 labour trafficking and 24 sex trafficking cases. the government of ghana also initiated prosecutions of 18 alleged labour traffickers and continued prosecutions of four alleged labour traffickers. moreover, in 2020 the courts in ghana convicted 13 labour traffickers in addition to convictions of 10 traffickers in 2019. out of the 13 human traffickers convicted by the courts in ghana in 2020, nine were sentenced to between five years and 18 years imprisonment. a court was also reported to have fined one trafficker 3,600 cedis ($620) and fined two defendants 240 cedis ($41) for child labour violations. it is noteworthy that the penalties for sex trafficking are commensurate with those prescribed for other serious crimes, such as kidnapping. however, the us department of states report noted that the government of ghana did not provide sufficient funds and other necessary facilities for the operation to the law enforcement agencies for investigations of human trafficking cases. other inadequacies in the operational systems of the government of ghana in handling the fight against human trafficking in the country include lack of shelter facilities, delayed investigations, inadequate evidence collection, a weak collaboration between prosecutors and the law enforcement agencies. given the preceding analysis, we submit that although the government of ghana is progressive in its effort to eliminate human trafficking in the country, the gap between the anti-trafficking efforts in ghana and the social manifestation of the offence remains wide, and the government needs to do more. 6. human trafficking in senegal senegal is a source, transit, and destination country for human trafficking. human trafficking in the country takes different forms and manifests itself through forced daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 179 labour, sexual exploitation, organ trafficking, and forced begging. among the different exploitative practices, forced child begging is among the more dominant forms (university of nottingham 2021), a practice in which young children, usually ages 5 to 15 (talibes), are trafficked from across west africa to koranic schools in senegal, where they are forced to beg on major city streets in the country (ouedrago 2021). it is noteworthy that the senegalese population is mostly composed of sunni muslims ‘whose sufi orders are guided by their religious leaders, the marabouts’ (einarsdóttir and boiro, 2016 p.859). these marabouts are highly influential within senegalese society. it is estimated that more than 100,000 talibe children in senegal are forced to beg for food and money, a practice enforced by severe beatings and punishment (human rights watch 2019). aside from talibe children, senegalese women and girls are often subjected to domestic servitude. for the most part, sex trafficking victims are exploited in the south eastern gold-mining region of kedougou. apart from senegalese victims, individuals from burkina faso, ghana, guinea, mali, and nigeria are often used in forced labour activities and sex trafficking in the mining sector in senegal (u.s. department of state, 2021, p.489). it is noteworthy that the national anti-trafficking authority in senegal, the cellule nationale de lutte contre la traite des personnes (cnltp), or the national unit for combating trafficking in persons was established in 2010. the adoption of the antitrafficking law in 2005 highlighted the need for better coordination among different stakeholders. thus, the ministry of justice set in motion efforts to adopt an action plan, which eventually culminated in the establishment of cnltp in 2010. the cnltp lies under the authority of the prime minister and is administratively attached to the ministry of justice.40 the anti-trafficking authority, inter alia, provides a framework for collecting data on human trafficking and serves as a mechanism for promoting regional cooperation between senegal and other ecowas countries.41 the cnltp has more recently enjoyed increased funding from the government to implement diverse anti-trafficking programmes in the country.42 6.1. legislative prohibition of human trafficking in senegal as earlier indicated, article 5 of the palermo protocol urges states parties to ‘adopt such legislative and other measures’ to criminalise human trafficking. it is noteworthy that senegal ratified the palermo protocol on 27 october 2003. in senegal, the law to combat trafficking in persons and related practices and to protect victims was adopted in 2005 as a first step to fulfilling the palermo protocol obligations. to a large extent, the legislation domesticates the provisions of the un palermo protocol. article 1 of the legislation states that: 40 cnltp http://www.cnltp.org/cnltp.php accessed 12 october 2021 41 ibid. 42 the 2021 tip report notes that, ‘the government allocated 60 million fcfa ($113,420) to the cnltp in 2020, a significant increase compared with 16 million fcfa ($30,250) allocated in 2019. p 488. http://www.cnltp.org/cnltp.php human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 180 the recruitment, transportation, transfer, harboring, receipt of persons by threat or use of violence, abduction, fraud, deception, abuse of power or of position of vulnerability or of the giving or benefit payment acceptance to achieve the consent of a person having control over another person, for the purpose of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude is punished with imprisonment from 5 to 10 years and a fine of 5 to 20 million francs. the above provision generally spells out the act, means, and purpose elements of human trafficking in conformity with the palermo protocol. trafficking offenders may also face imprisonment ranging from 5 to 10 years and a compulsory fine of 5 to 20 million francs ($8,600 to $34,000). in this way, trafficking is recognised as a serious offence, unlike other offences where judges may exercise their discretion to impose a fine or a prison term. article 1 of the 2005 legislation states that ‘the offense is constituted when the recruitment, transportation, transfer, or harboring involves a minor’, even if none of the means indicated in the article are used. this provision further translates the content of article 3(c) palermo protocol. the 2005 anti-trafficking law goes a step further to stipulate imprisonment of 10 to 30 years ‘when the offense is committed through the use of torture or barbarism or to human organ harvesting, or it exposes the victim to an immediate risk of death or nature of injuries lead to permanent disability’. the inclusion of torture and organ harvesting target practices that are gaining increased popularity among human trafficking syndicates. therefore, as far as legislative prohibition is concerned, article 1 of the 2005 senegalese anti-trafficking law largely accords with the contents of article 3 palermo protocol and also covers other practices not covered by the palermo protocol.43 further, article 3 of the 2005 anti-trafficking law states that ‘whoever organizes begging others to benefit from hiring, entices or leads away a person in order to engage in begging or exert pressure on her to beg or continues to do so is punished with imprisonment for 2 to 5 years and a fine of 500,000 francs to 2,000,000 francs’ ($860 to $3400). this provision specifically criminalises a widespread practice across senegal, i.e., the use of children (many of whom are trafficked) for forced begging. this practice is ostensibly considered a lesser offense than prima facie cases of human trafficking under article 1 of the 2015 law, where the punishment is 5 to 10 years imprisonment. instead, the punishment prescribed for forced begging is 2 to 5 years imprisonment; even though trafficking of talibe children for forced begging could be as equally exploitative. also, the fine that may be imposed varies considerably, i.e., 500,000 to 2 million francs for forced begging and a fine of 5 to 20 million francs for article 1 trafficking offences. for a more 43 aside from the 2005 anti-trafficking law, other instruments that offer protection from human trafficking include the ministerial order no. 3749 determining and prohibiting the worst forms of child labor (articles 1, 2, and 3); and the ministerial order no. 3751 determining the categories of business and work prohibited to children and youth (articles 1, 2, and 3), see generally us department of labour, ‘2020 findings on the worst forms of child labor senegal’, <https://www.dol.gov/agencies/ilab/resources/ reports/child-labor/senegal>. https://www.dol.gov/agencies/ilab/resources/reports/child-labor/senegal https://www.dol.gov/agencies/ilab/resources/reports/child-labor/senegal daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 181 effective anti-trafficking governance, there might be a need to harmonise the punishment sections, especially by increasing the penalty for the offence of exploiting children in forced begging. 6.2. human trafficking prosecutions in senegal the degree to which national authorities prosecute human trafficking may reveal the uptake of the anti-trafficking legislation and the importance accorded to the phenomenon. evidence suggests that trafficking prosecutions are gaining increased attention in senegal in more recent years; as the 2005 human trafficking law was rarely used to prosecute the offence in the immediate years following its adoption. for instance, there were no prosecutions under the law as of 2006 (u.s. department of states trafficking in persons report, 2006, p. 216). by 2010, the us tip report noted that ‘many law enforcement and judicial personnel were unaware the anti-trafficking law existed’, although other laws were used to prosecute traffickers (u.s. department of state, trafficking in persons report 2010). in more recent years, the use of the 2005 law in prosecuting trafficking has steadily increased. in 2018, based on data collected from six of senegal’s 14 regions, the government reported investigating 12 trafficking cases, of which 12 suspects were prosecuted with six convictions secured (u.s. department of state, ‘trafficking in persons report 2020). similarly, in 2019, data collected from five regions showed that the government investigated at least 12 trafficking cases, of which 17 suspects were prosecuted with five convictions. (u.s. department of states trafficking in persons report 2021, p. 487). in 2020, based on data obtained from five regions, the government reported investigating 14 cases of human trafficking, of which 19 suspected traffickers were prosecuted with 12 convictions (u.s. department of states trafficking in persons report 2021, p. 487). the convicts were from burkina faso, senegal, mali, ivory coast, and nigeria. (u.s. department of states trafficking in persons report 2021, p. 487). there is a clear indication that the prosecution and conviction rates in the country are low relative to the social manifestation of the offence. this is especially the case where the exploitation of talibe children is taken into account. the influential roles of marabouts in senegalese society may undermine effective prosecution in this area. as indicated earlier, these powerful individuals are usually at the helms of koranic schools where talibe children are trafficked and forced to beg on the streets (boiro and einarsdóttir 2020, pp. 265-280). although forced begging is criminalised under article 3 of the 2005 trafficking law, certain provisions in the penal code, which allow seeking of alms in certain contexts, have hindered efforts to distinguish between legitimate alms-seeking and those calculated to exploit. specifically, article 245 of the penal code states that, ‘soliciting alms in the days, in the places and under conditions consecrated by religious traditions is not an act of begging’. this precisely makes it difficult to address the problem of child trafficking for forced begging in senegal. overall, although existing laws address many aspects of human trafficking, the phenomenon remains widespread across the country. with more than 100,000 talibe children forced to beg on the streets under differing exploitative conditions and the human trafficking in west africa: an assessment of the implementation of international and regional normative standards the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 182 existence of human trafficking in other forms, such as sex trafficking and forced labour, the full realisation of the rights contained in relevant international and domestic normative standards appear to be rather elusive for many individuals in senegal. 7. conclusion this study has attempted to examine the current realities of human trafficking in west africa, by focusing mainly on legislative prohibition and the uptake of relevant laws. west africa is, in many ways, the epic-centre for human trafficking in africa, although the problem also manifests itself in other parts of the continent. weak legal architecture both at national and regional levels complicates the task of trafficking detection, criminalisation, and prosecution. the need for coherent legal standards is therefore inevitable for effective anti-trafficking governance. beyond the better-known palermo protocol, a number of regional anti-trafficking standards in ecowas were identified. these instruments, such as the ouagadougou action plan to combat trafficking in human beings, especially women and children, the african charter on human and peoples rights, and the ecowas common approach on migration of 18 january 2008, supplement the palermo protocol and provide a framework for responding to trafficking problems in west africa. these instruments encourage cooperation between and among ecowas states, including mutual legal assistance to address the challenge of human trafficking effectively. beyond the regional level instruments, the national responses to human trafficking have been engaged with, focusing mainly on ghana, nigeria and senegal. there is evidence that all three countries have designated a national body with oversight functions on human trafficking, and all three countries possess specific anti-trafficking legislation. nevertheless, the study has revealed the unique manifestations of human trafficking in all three countries. in nigeria, for instance, research suggests that 98% of human trafficking occurs within the domestic context, while only 2% of victims are trafficked abroad. however, broader responses to the phenomenon seem to prioritise trafficking from nigeria to rich countries in europe and the middle east. rethinking the current approaches and addressing the root causes of the phenomenon, especially poverty, could mitigate the current challenges. in ghana, sex trafficking and forced labour are the two dominant forms of trafficking in person. also, there is evidence that ghanaians, especially children, are more exploited within the country than transnationally. this, in many ways, is consistent with the trend in nigeria, where the great majority of human trafficking occurs in the country. however, trafficking prosecution in ghana is low, while law enforcement agents are highly underfunded. these would inevitably undermine the prospects of effective anti-trafficking governance in the country. increased funding and more targeted responses are crucial to addressing the current trends in ghana. in senegal, trafficking occurs in different sectors, including forced labour, sexual exploitation, organ trafficking, and forced begging. however, the use of talibe children in forced begging is among the more dominant forms. despite the exploitative nature of the practice, there is a clear indication that the prosecution and conviction rates in the daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 183 country are low relative to the social manifestation of the offence. in this regard, highly influential religious leaders who exploit children may also be politically connected and might evade prosecution. also, gaps in section 245 of the penal code, which permits ‘soliciting alms in the days, in the places and under conditions consecrated by religious traditions’ make it difficult to address the problem of child trafficking for forced begging in senegal. amending this provision to prohibit all aspects of child begging might reduce the exploitation of talibe children in senegal. finally, this study has highlighted the sub-regional level efforts at preventing human trafficking in west africa. however, good laws and policies alone cannot sufficiently address the challenge both at the 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https://www.naptip.gov.ng/naptip-dg-promises-stringent-enforcement-of-tip-laws-scores-the-agency-high https://doi.org/10.1017/s0021855318000232 https://harvardhrj.com/2021/04/the-plight-of-talibe-children-in-senegal https://harvardhrj.com/2021/04/the-plight-of-talibe-children-in-senegal https://pathfindersji.org/ nigeria-human-trafficking-factsheet/ https://doi.org/10.1177/0975087818776166 daniel ogunniyi; oladimeji i idowu the age of human rights journal, 19 (december 2022) pp. 165-185 issn: 2340-9592 doi: 10.17561/tahrj.v19.6851 185 u.s. department of state 2020, ‘trafficking in persons report – 2020’ (u.s. department of state, 2020) accessed 12 october 2021. <https://www.state.gov/reports/2020trafficking-in-persons-report/senegal/>. u.s. department of states 2021, child protection compact partnerships – ghana, accessed 8 november 2021. https://www.state.gov/child-protection-compact-partnershipsghana/ u.s. department of states 2021, ‘trafficking in persons report (nigeria) – 2021’ (u.s. department of state, 2021) accessed 12 october 2021 <https://www.state.gov/ reports/2021-trafficking-in-persons-report/nigeria/>. united states of america center for immigration studies, ‘an interesting case illuminates the difference between extradition and deportation, and the complexity of our laws’ accessed 20 november 2021 https://cis.org/cadman/interesting-caseilluminates-difference-between-extradition-and-deportation-and-complexity unodc 2021, global report on trafficking in persons, (united nations 2021) 81. unodc nigeria, ‘human trafficking in west africa: three out of four victims are children says unodc report’, accsessed 26 november 2021, <https://www.unodc.org/ nigeria/en/human-trafficking-in-west-africa_-three-out-of-four-victims-arechildren-says-unodc-report.html>. unodc, ‘senegal is fighting human trafficking and smuggling of migrants’, accessed 13 october 2021. <https://www.unodc.org/westandcentralafrica/en/2017_03_26_ senegal-traite.html>. us. department of state, ‘trafficking in persons report – 2010’ (u.s. department of state, 2010) accessed 12 october 2021 <https://www.refworld.org/docid/4c1883c92d. html>. us. department of state, ‘trafficking in persons report – 2021’ (u.s. department of state, 2021) 489. viljoen, f and odinkalu, c 2014 the prohibition of torture and ill-treatment in the african human rights system: a handbook for victims and their advocates, 2nd edition, omct handbook series vol. 3, omct, geneva, 2014, pp.48–49 received: december, 23rd 2021 accepted: march, 17th 2022 https://www.state.gov/reports/2020-trafficking-in-persons-report/senegal https://www.state.gov/reports/2020-trafficking-in-persons-report/senegal https://www.state.gov/child-protection-compact-partnerships-ghana https://www.state.gov/child-protection-compact-partnerships-ghana https://www.state.gov/reports/2021-trafficking-in-persons-report/nigeria https://www.state.gov/reports/2021-trafficking-in-persons-report/nigeria https://cis.org/cadman/interesting-case-illuminates-difference-between-extradition-and-deportation-and-complexity https://cis.org/cadman/interesting-case-illuminates-difference-between-extradition-and-deportation-and-complexity https://www.unodc.org/nigeria/en/human-trafficking-in-west-africa_-three-out-of-four-victims-are-children-says-unodc-report.html https://www.unodc.org/nigeria/en/human-trafficking-in-west-africa_-three-out-of-four-victims-are-children-says-unodc-report.html https://www.unodc.org/nigeria/en/human-trafficking-in-west-africa_-three-out-of-four-victims-are-children-says-unodc-report.html https://www.unodc.org/westandcentralafrica/en/2017_03_26_senegal-traite.html https://www.unodc.org/westandcentralafrica/en/2017_03_26_senegal-traite.html https://www.refworld.org/docid/4c1883c92d.html https://www.refworld.org/docid/4c1883c92d.html human trafficking in west africa: an assessment of the implementation of international and region abstract 1. introduction 2. an overview of human trafficking trends and patterns in west africa 3. international and regional instruments for combatting human trafficking in west africa 4. human trafficking in nigeria 4.1. legislative prohibition and anti-trafficking governance in nigeria 4.2. human trafficking prosecutions in nigeria 5. human trafficking in ghana 5.1 legislative prohibition and anti-trafficking governance in ghana 5.2. human trafficking prosecutions in ghana 6. human trafficking in senegal 6.1. legislative prohibition of human trafficking in senegal 6.2. human trafficking prosecutions in senegal 7. conclusion bibliography human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 1 human rights in urban space a critical perspective orsetta giolo* abstract: this essay explores the relationship between law and the city, with a specific focus on the reformulation of rights within the urban space, reviewing some classifications of citizenship and democracy defined in the light of their state dimension in order to assess how such theorizations can also be applied to the urban dimension. to this end, it will be necessary preliminarily to investigate the transformations that the public space (physical and symbolic) – that is, the reference framework for the configuration of rights and subjectivities – is undergoing in an urban context. keywords: city, human rights, territory, urban space, neoliberalism. 1. rights from states to cities in the political-philosophical and sociological realms, the rise in the importance of urban space has been famously tied to the new role that the city itself has acquired in the context of globalisation and the connected crisis of states and national sovereignty (sassen, 2006).1 urban space has thus taken on a role as the ‘new centre’ of power, replacing the state and becoming the main place, as well as providing the main perspective2, for the formulation, design and testing of contemporary policies.3 given this change, the need to reconfigure a dimension that has long had major significance for the law has recently become increasingly pressing: that is, the “spatial” dimension, which regards the relationship – mutually constitutive – between law and territory, which has seen various changes over time.4 we need only consider that the relationship between law and cities was for a long time one of the main expressions of the connection between law and space, at least until the late middle ages. but the advent of the modern state profoundly influenced the way territoriality was understood. the city dimension was swept aside and replaced by that of the state. so much so that from the modern age onward, the territory of the state became the only territory relevant for the purposes of law, possibly with the sole addition of foreign territories of further state interest (seas, lands to be discovered and conquered, colonies, and so on). * (professoressa associata di filosofia del diritto, dipartimento di giurisprudenza, università degli studi di ferrara (orsetta.giolo@unife.it). 1 a different version of this essay was published in m.g. bernardini and o. giolo, abitare i diritti. per una critica del rapporto tra giustizia e spazi urbani, pacini, pisa, 2021. 2 on the city as a “perspective point”, labriola 2016. 3 in this sense, today “utopia is embodied by the city” (augè, 2007, p. 32). cf. also labriola (2016). 4 on the “birth” of territory – as a historical, geographical and political question – see the well-known book by stuart elden, 2013. for considerations on the evolution of the relationship between law and territory, i refer the reader to verdolini, 2018. https://doi.org/10.17561/tahrj.v23.8623 mailto:orsetta.giolo@unife.it human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 2 in the past few centuries, therefore, territory and the associated conception of space have been theorised about and represented as falling almost exclusively within the legal jurisdiction of the state – subject to planning and regulation solely for the sake of the sovereign state. starting from the modern age, the very notion of ‘citizenship’, which had come into being with reference to the urban context, became associated with state and nation, that is, fundamentally connected with the territory of the state, and no longer the city (costa, 1999, p. 4.)5. a semantic short-circuit of no little significance, which was rhetorically resolved, however, with the expression “national citizenship”. a further development in the relationship between law and territory took place starting from the second half of the twentieth century, as a result of the building of a new political and legal order founded on the international charters of human rights, with the united nations as its core. a new conception of the relationship between law and territory was thus gaining ground in its international dimension, with the emergence of the rights of persons as subjects of law in the international community, within international jurisdiction: all these elements contributed in turn to further changing the notion of citizenship, by giving rise to a conception that freed it from national confines and connected it to the global territory. however, the reconfiguration of the relationship between law and territory in its international dimension came to an abrupt halt in the early twenty-first century as the processes of globalisation took root. as mentioned earlier, these processes led to a superseding of the notion of law and territory as conceived at both the state and international levels, giving rise on the one hand to a “global law” (ferrarese, 2000; cassese, 2009, klabbers e palombella, 2019), and, on the other hand, to a rediscovery of the local dimension of space (bauman, 1998). thus began a complex process of “deand re-territorialization” (chignola, 2020, p. 529; middel-naumann, 2010), which saw the connection between law and territory once again finding a foothold in the city, as a space capable of translating global demands at a local level; this has disrupted the territorial foundation of many legal categories and institutions, starting from citizenship and rights. the latter, for example, as is well known, are the product of a very long process of theorisation that led, however, to the first proclamations and actual positivisation in an essentially state framework6: rights were born and asserted as prerogatives of (national) citizens “against” and “through” the state, as was underscored by norberto bobbio (bobbio, 1990). by reinforcing the original ‘short circuit’ on the notion of citizenship they have progressively enriched its meaning vis-à-vis first the state and then the international community. 5 the literature on this point is very extensive. allow me to refer here, by way of example, margiotta (2014) bellamy (2008), benhabib (2004; also 2005), la torre (2022). 6 the reference is obviously to the political frameworks in the united states and france at the end of the eighteenth century, at the time of the first declarations of rights, as well as european states at the beginning of the nineteenth century, during the codification movement, with the associated positivisation of rights. for an overview of the processes leading to the affirmation of rights, see facchi, 2013. https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 3 the absolute novelty of the present time, therefore, regards the possibility/necessity of theorising about rights as expectations people have not only in their relationship with the state and/or international political and legal community but also, and first and foremost, as inhabitants of a city. as is understandable, this poses significant problems that cannot be resolved where the city is seen exclusively as a local arm of the state. nor can the relationship between the law and the city still be interpreted in simplistic terms as a subsidiary relationship compared to that between the law and the state. the latter, as mentioned, no longer occupies the role it once did: globalisation has redesigned the territory, proposing a bicephalous representation comprising a global horizon and its opposite, a local one. the intermediate state level as well as the international order that is (was) founded on the community of states have been rhetorically – and effectively – removed, neutralised. therefore, we need to understand what has today become the “hub” of rights by examining, on the one hand, the coherence the city may or may not express in respect of the fundamental principles underlying the rights themselves – equality first and foremost – and, on the other hand, investigating the legal implications that may be expressed by the city, as viewed from a human rights perspective. to date, many disciplines have in fact addressed similar questions and transformations, with a particular focus on the inclusive or excluding aspects of the contemporary city7: from urban planning to anthropology, from sociology to architecture, and from computer engineering to aesthetics. among them, however, the legal sphere seems to have remained at the margins of reflection, almost confined there, as if irrelevant when it comes to thematising the contemporary city. if anything, the law is sometimes brought up in its “mere” regulatory, or even punitive, dimension, fully in line with the assumptions of neoliberal orthodoxy: the aim on the one hand is to govern people in the city, for example by tackling issues of social marginalisation from a security standpoint – through the repression of poverty, segregation of differences, surveillance and control over mobility; and, on the other hand, to offer legal coverage for market investments in the city – by regulating the administrative and urban management of assets, property, investments, building and contracts. not coincidentally, the two areas of law most heavily involved in today’s reflection on the city are criminal law and administrative law.8 here, however, i will seek to focus on the relationship between law and city from a possibly different perspective. i shall look into some of the reconfigurations in the legal realm that appear closely dependent on what is widely described as the “spatial turn” (middelnaumann, 2010)9 and dwell in particular on the reformulation of rights in the urban space, as expectations directed no longer against and in the state, but rather against and in the city. 7 for a survey deppisch and yilmaz (2021). 8 regarding this point, see the analysis of the impact of the new urban practices on administrative law in di lascio-giglioni, 2017. 9 cf warf e arias 2014. https://doi.org/10.17561/tahrj.v23.8623 human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 4 i will begin by reviewing some classifications of citizenship and democracy defined in the light of their state dimension in order to assess how such theorisations can also be applied to the urban dimension. i will then address the relationship between individuals, rights and the urban space in an attempt to understand what legal and political subjectivities are recognisable today in the city. 2. citizenship, democracy and the city: theoretical tensions in order to investigate the relationship between rights and city in a systematic manner, it is probably useful to rely on the classifications of rights that have made it possible up to now to understand and lend form to the contemporary notions of citizenship and democracy with reference to their state-national connotation. in respect of the so-called classes of rights, as is well known, some important points of reflection were put forward in the past, from a sociological perspective, by thomas marshall (marshall, 1950), who proposed a formulation of the notion of citizenship oriented towards equality, as an inclusive criterion, no longer simply denoting a person’s belonging to a state but also qualifying their entitlement to all fundamental rights. as was summarised by danilo zolo (2000, pp. 11-12), according to thomas marshall, civil citizenship was the first to be affirmed and attributed to individuals a series of rights of freedom: liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude contracts, and the right to justice. political citizenship developed in the course of the nineteenth century and reflected the political demands of the lower classes. it consisted in the right of citizens to participate in the exercise of political power as members of bodies invested with authority or as electors of the members such bodies. universal suffrage in elections to parliament and local government councils was the central expression of this second aspect of citizenship. social citizenship, finally, was established in the twentieth century and consists in the right to a level of education, welfare, and social security according to the standards prevailing within the political community. the institutions connected with this aspect of citizenship are the educational system and social services (health, housing, pensions, insurance, etc.) (zolo, 2000, p. 12). it is interesting to note the fact that marshall himself pointed out, in his work, the moment in which citizenship became a national institution, that is, when freedom became “universal”, with the abolition of serf status (marshall, 1950, p. 18): previously, “in the towns, the terms liberty and citizenship were interchangeable”. following this change in the relationship between individual and territory (or between individual and land even) the physical space of citizenship came to coincide with the territory of the state; therefore, the physical space of marshallian dimensions was represented by the state, which, through its territorial ramifications (including cities), became the guarantor of the exercise of fundamental rights.10 10 marshall in fact pointed out: “[i]n the medieval towns, on the other hand, examples of genuine and equal citizenship can be found. but its specific rights and duties were strict1y local, whereas the citizenship whose history i wish to trace is, by definition, national” (marshall, 1950, p. 12). https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 5 luigi ferrajoli subsequently defined the dimensions of constitutional democracy from the standpoint of legal theory. he outlined its contents again on the basis of classes of fundamental rights and emphasised, in this case, the existing connection between the exercise of popular sovereignty and the effective enjoyment of rights.11 the “fourdimensional” model of constitutional democracy is “structured in four dimensions corresponding, respectively, to the four aforesaid types of rights: political rights, civil rights, rights of freedom and social rights” (ferrajoli, 2007, p. 21) and enables us to distinguish four forms of democracy – political, civil, liberal and social – all necessary to identify constitutional democracy. the legal-theoretical model of constitutional democracy also implies the existence of a given territory in which it may find expression and the qualification as “constitutional” implicitly invokes the state dimension as the primary space; in this sense, the local territory and its administration can be understood as territorial ramifications of the state system, and as such must consistently operate within the legal-political framework outlined by the model itself. what remains to be defined, therefore, is whether and in what way the city is actually interacting with these dimensions of citizenship and democracy, given that, as already noted, the state can no longer be considered as the geographical space, much less the political community of reference, of the exercise of rights. how might these dimensions develop in relation to a new territory that no longer represents a mere branch of state institutions, but rather constitutes the main space in which rights are exercised, hence the focal point of citizenship and democracy, much more today than in the past? what are the implications of the application of these concepts and these dimensions in an urban, rather than state context12? 3. rights in urban space: the crisis of the civil, political, and social city from a rights perspective, the city – like citizenship and democracy – can express several dimensions. as regards the classes of civil, political, and social rights, it is possible, for example, to identify the dimensions of the civil, political, and social city; however, they have entered into a deep crisis due to the transition from the “constitutional city”, existing within the legal and political framework of the constitutional state – likewise in the midst of a crisis – to the “neoliberal city” (harvey, 2007). 11 “the connection established here between democracy and law is thus specified as a connection between (dimensions of) democracy and (types of) fundamental rights” (ferrajoli, 2007, p. 22). 12 on this, the debate is very rich, especially in the last two decades and from different perspectives of analysis. cf., for example, on the urban citizenship, zocca tomaz (2022); monaco (2022); gordon (2007); baubock (2003); bauböck and orgad (2020); holston (1998). on the relationship between democracy and the city cf also, for all, beveridge and koch (2023); low (2009); engin (2000). https://doi.org/10.17561/tahrj.v23.8623 human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 6 as is well known, the dimension of the “civil” city involves the possession and exercise of rights of liberty: in this respect, the urban space may be regarded as the place of expression of freedom. the “free” city was once also the city of the free, in that it determined the free status of its citizens.13 today, by contrast, all cities are free by virtue of their belonging to a state territory in which fundamental rights are constitutionally recognised: the cities are free because people are free. today, unlike in the past, therefore, it is the freedom of individuals, constitutionally affirmed, that qualifies the urban space as free, and not vice versa. however, as i have already suggested, raising the question of freedom with reference to the urban space is highly problematic at present: affirming that today’s city is free because we are all free does not at all mean that the urban space is freely accessible to all to an equal degree; on the contrary, recent history seems to have moved in exactly the opposite direction14. local authorities have shown increasing determination in issuing prohibitions (that are often also contra legem) aimed at restricting the physical space of action of individuals: from bans on begging in historical city centres to the prohibition against opening ethnic establishments in some areas, to the prohibition against the opening of mosques and so on. furthermore, as already mentioned, disruptive events such as international terrorism and then the pandemic have further compromised the exercise of many freedoms in general (of movement and demonstration, in primis) in states, among states and above all in the urban space. the prohibition against large gatherings, the control of points of access to the most crowded places, “curfews” for health reasons, and checks on documents are by now – in a potpourri of successive and partly overlapping measures issued by national, regional and local authorities – everyday practices, well tolerated by the population, which have profoundly impacted the way of conceiving what acting freely in the urban space means. the political city, by contrast, refers to a dimension of the city that is experiencing another profound crisis, for two kinds of reasons. firstly, because of what has just been described: the risks arising first from terrorism and then from the pandemic have led to 13 on this point, it is worth mentioning what was observed by marshall regarding english peasants who sought freedom by escaping into the free cities (marshall, 1950, p. 18). 14 these considerations presuppose a reflection on the transformations that the public sphere has undergone as a result of its adaptation to the space of the city. it should be noted first of all that the expression “public space” has always been used in the realms of legal philosophy and political philosophy as equivalent to that of “public sphere”. in the context of the contemporary city – the global and neoliberal city – these two expressions tend no longer to correspond. for one main reason: the public space is increasingly understood as a physical rather than symbolic place, literally as a public urban space. the so-called “spatial turn” has probably contributed to redefining the meaning of this expression by calling attention to the space of the city, precisely, as a paradigmatic place. but this redefinition also reflects what many analyses have underscored regarding the crisis and depoliticization of the public sphere, in the context of societies dominated by the neoliberal paradigm: public institutions have lost relevance, law and politics have become subordinate to economics, political subjectivity has been surpassed by self-entrepreneurship (brown, 2015; de carolis, 2017). however, the dismantling of the public sphere did not initially affect the public space in its physical, frequentable, and accessible form. if anything, it led to a redefinition of its meanings, precisely: no longer necessarily political, but commercial, economic, or sustainable, regenerated, and so on. https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 7 a progressive reduction in the physical spaces of political participation: on the one hand, traditional gathering places have been closed, and on the other hand, it has become difficult to organise demonstrations and meetings due to the restrictions on access to streets and squares. secondly, the differentiation between statuses that characterises subjectivity in the neoliberal conception (giolo, 2020) has further disrupted the nexus between political rights and the city: as is well known, not all the inhabitants of a city can vote and be elected, and thus actively participate in the management of public affairs. as a result, there is an increasingly large presence of people who are formally excluded from the “political” life of the city. this creates further division, which evokes the vision of the colonial city (mbembe, 2018), in which the dominant vote and are elected and the dominated can not even demand to exercise such rights. the number of inhabitants who can act politically in the urban space is thus decreasing,15 resulting in a progressive distancing of the idea of city from that of participation and above all the creation of a gap between the dimension of political (state) democracy and the urban variation on the theme.16 finally, the difficulties of the city with respect to its social dimension are probably the best known and most extensively investigated: a “hostile” city that excludes, marginalises, and generates vulnerability represents the most negative contemporary image of urban space (ciaramelli, 2020). such a portrayal is consistent, moreover, with the crisis of social rights, which have been severely curtailed over the years due to the weakening of the drive towards equality and solidarity in the legal and political realms (casadei, 2013; zullo, 2013; ansuàtegui roig, 2014). similarly, the growing differentiation in the access to services – increasingly dependent on an individual’s financial situation – is the consequence of the undermining of the principle of universality of rights. the crisis of the social city is indeed at the core of the fragmentation of subjectivity and the concomitant dramatic hierarchisation of city spaces, aggravated by the increasing distance between the centre and outskirts, where the distribution of the different classes of the population across the territory is determined by income,17 with highly significant political repercussions. the much abused and redundant topic of security has been dominating political debates for decades, it monopolises municipal electoral campaigns and distracts public opinion from an examination of the issues lying at the origin of the problems, at times very real, that weigh upon the city’s residents. urban conflict has thus in many cases replaced social conflict: the battles and demands tied to social issues (work above all) have shifted to urban issues (security and exclusive access to neighbourhoods) and this has radically changed the substance of political debate. the main concern of a city’s inhabitants seems to be to defend their individual priority of access to spaces and the services connected to them, whereas the collective dimension becomes relevant 15 other more optimistic interpretations see the emergence, in this context, of new political actors and new forms of participation, cf. for example sassen (2006 and also 2001). 16 in this case, the obvious issue that arises is the attribution of the right to vote to migrants, which takes on particular relevance above all in relation to local elections and the need to offer recognition of the right of non-citizens to participate in the life of a city. 17 for further insights on this subject, cf. alietti, agustoni (2017). https://doi.org/10.17561/tahrj.v23.8623 human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 8 exclusively in a context of antagonism, when a precarious “we” is identified in opposition to “others” to be expelled. the neoliberal city thus presents itself as a city that is hostile to rights. yet the problem appears to have even deeper roots. there arises the doubt that the relationship between rights and the city is problematic because rights tend to obtain recognition beyond the spatial dimension coinciding with the physical place in which an individual lives. if we think about it, rights attained the utmost importance when their recognition went beyond even the spatial dimension of the state from which they originated: the internationalisation of rights probably lent greater impetus to their implementation also on a local scale. there has obviously remained a large gap between the proclamations contained in legislation and actual enforcement, but this gap, besides being a constitutive element of the legal experience, does not seem destined to be closed in an urban rights framework. i shall attempt to explain the reasons for such scepticism in the paragraphs below. 4. the urban fragmentation of statutes a first reason is tied to the ratio personae: that is, which individuals and entities are affected by this new relationship between law, rights, and urban spaces? such a question presupposes the need, from a legal perspective, to distinguish between the (physical) space of a territory and the (institutional) space of the law: two dimensions which, in the city – as in every other place – end up overlapping, despite not coinciding. the non-convergence between territory and legal space means that these two different dimensions of the city are not inhabited by the same people, and that the latter do not have the same possibility of accessing one or the other.18 here lies the first legally relevant problem of the so-called “right to the city” (lefebvre, 1968), which – in legal terms, precisely – is much more complex than it might rhetorically seem to be.19 who, indeed, may claim this right? and by claiming it what are they asking for? that is, who has the right to inhabit the legal space of the city? anyone who inhabits the urban physical space? these two conditions do not in fact coincide automatically. 18 “the jurisdictional boundary does more than separate territory; it also separates types of people: native from foreign, urbanites from country folk, citizen from alien, slave from free.” (ford, 1999, p. 856). 19 for an analysis of the legal significance of this expression, see nitrato izzo (2017, in particular 87 ff). cf also marcuse, 2009. https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 9 in the most recent period, in particular, the differentiation between them has become more pronounced, mostly because of the introduction of regulations by local governments, as has been the case in italy in recent years. in this regard, residency, from a mere fact that can be checked and ascertained by the public authorities, has become an increasingly relevant legal institution defining a status, that of “resident”, precisely, which today marks the boundary of a city’s legal space, sometimes creating an abyss between physical space and legal space: not everyone who lives in a city is a legal resident, and those who do not have residency status enjoy the “right to the city” to a much lesser degree, not being able to claim the same rights vis-à-via local authorities.20 from this point of view, residency today seems to be a defining element of citizenship when it comes to the space of the city: the citizens, in the urban space, are the residents, whereas those who do not have resident status end up resembling not so much a foreigner as someone who was once considered a stateless person, i.e. an individual without any form of “legal belonging to a space,” that is, without recognition or protection. it should be stressed, in fact, that residency also works in the absence of citizenship. contemporary cities are populated by residents who are not citizens of the state to which the city in question belongs: one might therefore argue that residency, all things considered, is an institution that comes close to citizenship, whereas, when it comes to the facts, its excluding nature is much more marked than its capacity for inclusion (gorlani, 2020). all things considered, the city has become a “fragmented space”21 in which a “fragmentation of subjectivity” has occurred as a result of neoliberal reasoning. legal and political subjectivity, in the urban context, are no longer unified: citizens are not residents, and inhabitants are often neither legal residents nor citizens. the new hierarchies of status act in such a pervasive manner as also to determine the positions that individuals occupy in the urban physical space, generating a strong relationship between status and areas of the city, social condition, and urban position. from this standpoint, what achille mbembe has highlighted regarding the planning of the contemporary city takes on an enlightening significance: it repeats the aforementioned model of the colonial city (mbembe, 2018), with the division and allocation of urban spaces to useful or useless, excess, or superfluous segments of the population. the urban space thus becomes the physical and symbolic epicentre of the theorem of the world of the “great eviction” (ivi, p. 45). not coincidentally, in the urban context the status of person (i.e. the reference status for entitlement to fundamental rights, on both an international and national level) is practically irrelevant: it does not allow access to any right, except in its emergency dimension (access to emergency departments, for example). in this respect, the irrelevance of the person in the city has produced a further consequence: in the (public) urban space, 20 in italy, for example, the criterion of residency is constantly used by municipal regulations to limit access to certain fundamental rights, first and foremost housing: only those who have been residents for a number of years can, for example, apply for public housing, while those who do not have this title are expressly excluded from calls for applications (again gorlani, 2020). 21 we increasingly live in divided, fragmented and conflict-prone cities, writes david harvey (2007). https://doi.org/10.17561/tahrj.v23.8623 human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 10 on the one hand, rights have been transformed into privileges, linked to citizen status and even more so to resident status; on the other hand, rights “taken seriously” – that is, to which all people are entitled – have been reduced to solely an emergency dimension. in the urban context, a person is no longer taken care of as such: what counts, in extreme cases, is the bare life to be saved, exactly as occurs in the middle of the mediterranean, where there is no recognition of people claiming rights, only shipwrecked passengers to be saved. everything is connected, one would be tempted to say: in the city as in the sea, with the demise of the public space and the public sphere, political life is reduced to biological life (fassin, 2020). the space of rights in the city is thus shrinking, while the principle of universality – a foundation of the rights themselves (ferrajoli, 2001) – is increasingly losing relevance, and in the oxymoron of the global city does not seem at present to have any possible translation. the urban representation of rights – reductionist, fragmentary, limited to emergencies – only contributes to the resurgence of a conception of citizenship that is localistic and fragmentary, as in the late middle ages,22 and to the simultaneous reduction, as sassen writes (2006, p. 408), in the number of public relations/interdependencies between people and the institutions, whereas the private relations between people and the market have increased exorbitantly. besides this distinction between subjectivities in relation to the statuses of citizen, resident, and inhabitant, we must not neglect to consider another (age-old) differentiation among the individuals who live in a city, one that depends not only on legal dictates but also and above all on the ideological legacy that the city itself, as a physical representation of a given conception of society, reiterates, thereby maintaining (physical) forms of discrimination to the detriment of groups of people traditionally oppressed because of their specific identities. in this case, the differentiation concerns the classic issue of the accessibility of spaces to individuals who are typically discriminated against – women, persons with disabilities, migrants, religious and cultural minorities and so on – who are formally entitled to fundamental rights but in actual fact encounter an “urban obstacle”, as a result of which that entitlement is emptied of meaning. the city, built according to the needs and in the interests of the dominant groups, still today fails to recognise the needs of “unexpected subjects” (lonzi, 1974), and has difficulty in translating them into a reconfiguration of spaces and places. a paradigmatic case is that of women, who have for some time been holders of the same fundamental rights as men, but who still encounter a thousand obstacles when it comes to the city as a space to be experienced in its totality. feminist thought (in the urban planning, sociological, and legal realms) on the city has demonstrated up to now that that there is a substantial incompatibility between the contemporary organisation of most women’s lives and the design of urban spaces, which reflects patriarchal ideological 22 regarding such characteristics of medieval citizenship, see costa (1999, p. 15), cf. gravela (2019). the resurgence of medieval conceptions of citizenship seems to go hand and hand with the processes of refeudalisation of society promoted by neoliberal ideology and already highlighted by de carolis (2017). https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 11 notions entrenched in legal, political, and also city planning practices, the reason why women remain prevalently confined within the domestic space.23 in fact, these differentiations at times overlap with those related to statuses (we need only consider the case of migrant women) and thus contribute to the hierarchisation of spaces, positions and subjectivity in the city. 5. right to the city vs. rights against the city another reason underlying the difficult urban reconfiguration of rights is the (conceptual and political) confusion that has been generated by neoliberal ideology as regards the connection between law, power, and territory. if we think about it, all contemporary rhetoric about the city seems to reproduce to some extent the false contrast between globalism (i.e. the primacy of the global territory) and sovereignty (i.e. the primacy of local/national territory). neoliberalism has favoured the development of these two only apparently contrasting perspectives, which actually intimately collaborate: in fact, they cooperate in the aim of consolidating social hierarchies, on the one hand – in the global dimension – while favouring and promoting interaction between the affluent and the zealots of neoliberal orthodoxy; on the other hand – in the sovereign dimension – by confining and repressing those belonging to the poor population groups and those who oppose that conception of the world. indeed, in the urban space, which represents the place where the effects of neoliberal policies manifest themselves most visibly (aru-puttilli, 2014, p. 10; sager, 2011), these two spirits coexist, mutually supporting each other: the space of the upper stratum is usually connected to global communication and a vast network of exchanges, open to messages and experiences that embrace the whole world. at the opposite end of the scale, fragmented local networks, often ethnic based, rely on their identity as the most valuable resource for defending their interests and ultimately their very existence (castell, 1989).24 the global city, rich and sustainable, forged by architectural design and technological experimentation, is accessible solely to the elites (which are in turn global), whilst the masses live in the spaces assigned to them by the “sovereign” city: urban areas without services, often the site of polluting industries, landfills, prisons, reception centres and so forth. therefore, just as neoliberal globalisation needs the (sovereign) backing of the police state, in the same manner the global and neoliberal city ends up functioning as a new centre of authoritarian, repressive urban power that manifests itself every time there are 23 an interesting analysis of these topics in a gender perspective is contained in towards habitat iii. a gender perspective in the journal “territorio della ricerca su insediamenti e ambiente. international journal of urban planning” (2016), in particular prieto perez (2016). cf. fenster (2005). 24 cf. bauman, 2003. bauman, again referencing castell, notes that people live in places, while power governs through flows (castell, 1989). https://doi.org/10.17561/tahrj.v23.8623 human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 12 hierarchies to be reasserted, segregation and marginalisation policies to be implemented or reinforced (sassen, 2006). in particular, the contemporary city seems to operate as a form of arbitrary power, which acts according to its own rules, in clear conflict with what is established by constitutional principles or international legislation. consequently, the well-known expression “right to the city”25, which has for some time encapsulated the demands concerning access to rights in the city, actually seems to refer, in practice, to the exercise of rights against the city, or against the centre of power that presently represents at an urban level what once concerned the national level. if rights were first claimed against the state (bobbio, 1990), today they have to be able to act against the city, that is, against the current place of power, in order to control it: the power of the city needs to limited, constrained, and regulated, as occurred in the past for state power (nitrato izzo, 2017), the aim being to reassert a sort of “sphere of the undecidable”26 in an urban context. a city cannot deprive its inhabitants of a home, health care, education, welfare services, or access to means of subsistence – on grounds of residence status, security, emergency, etc. – as these are fundamental rights enshrined in constitutions and international charters.27 in this sense, the tension between rights and the city paradigmatically expresses the tension underlying the relationship between rights and territory. the prominence given to the city in its local territorial dimension, related to the “spatial trap” (heller, 2017), seems to have given rise to a “territorial principle”28 that underpins the claims coming from city in total contradiction with what is established by national and international legal systems in respect of rights and freedom. the territory thus expresses a regressive potential when it comes to fundamental rights, leading to the triggering of identity-focused rhetoric of a localistic character centred on “forced sedentariness”,29 and increasingly aimed at the hierarchisation and marginalisation of those who do not correspond to given representations of subjectivity. 25 for a survey on the possible relationship between human rights and the city, i refer to chueca (2016, 103); kempir reuter (2019); grigolo (2019); oomen, durmuş, miellet, nijman, roodenburg (2022). 26 the reference is to ferrajoli (2001). 27 in this regard it should underscored that the mechanism of guaranteeing rights is to be found precisely at the national and international level and international level and can already be triggered “against the city”, when necessary. a banal example: it is possible to challenge a measure issued by the mayor or municipal government by appealing to regional administrative courts or ordinary points, which are part of the organisation of the state and as such “external” to the city. in such cases, the spaces enter into conflict with each other, as a result of the conflict between the respective legislations and jurisdictions: and we much more frequently witness the intervention of the state jurisdiction to guarantee rights against discriminatory urban measures,27 whereas the opposite represents virtuous but very rare exceptions. 28 a positive reading of the territorial principle is contained in magnaghi (2020). here, by contrast, it is understood as a principle undermining the universalist basis of fundamental rights. 29 (augé, 2007). https://doi.org/10.17561/tahrj.v23.8623 orsetta giolo the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 13 the neoliberal city appears as a regressive city which reflects, once again, the tendency towards the “great regression” that has already largely impacted contemporary law and politics (geiselberger, 2017). when it comes to rights, therefore, the city demonstrates its finite and limited nature: it is necessary to debunk the myth of the city and reduce the enthusiasm for the urban space, exactly as we demythologised the ideology of the sovereign state at the time when rights came onto the legal scene. if the city becomes power, that power must be minimised, not enhanced. this obviously does not mean underestimating the city’s role in the implementation of human rights and fundamental freedoms: on the contrary, it means demanding that urban practices are consistent with the established constitutional and international norms in this area30. but if we are to move in that direction, it will be necessary to abandon the rhetoric of the city as a space capable of having meaning in itself, in the institutional and political void of neoliberal globalisation and explore the different declination that rights in relation to the city can (or should) manifest31. the “right to the city” acquires meaning if the city itself is seen as part of a rights-oriented national and international legal and political architecture and does not renounce the dimension of the universal. references alietti, a. and agustoni, a (eds.) (2017). housing policies, migrants and integration, roma: aracne. ansuàtegui roig, f. j. (2014). rivendicando i diritti sociali, napoli: edizioni scientifiche italiane. aru, s. and puttilli, m. (2014). ‘forme, spazi e tempi della marginalità’, bollettino della società geografica italiana, vii, pp. 5-16. 30 the relationship (to be implemented) between human rights and the city has for some time been the subject of attention by several actors, institutional and non institutional. an interesting analysis of the legal issues involved in the translation of rights into urban space from the perspective of international human rights law can be found in human rights, rule of law and the new urban agenda (onu, 2020, in https:// unhabitat.org/human-rights-rule-of-law-and-the-new-urban-agenda). cf. also: human rights in cities and other human settlements, resolution adopted by the human rights council on 23 june 2017 (in https:// digitallibrary.un.org/record/1303019?ln=zh_cn&v=pdf); human rights cities in the eu. a framework for reinforcing rights locally (2021, in https://fra.europa.eu/sites/default/files/fra_uploads/fra-2021-humanrights-cities-in-the-eu_en.pdf); gwangju guiding principles for a human rights city (may 2014, in https:// www.hlrn.org/img/documents/gwangju%20guiding%20principles%20for%20human%20rights%20 city%20adopted%20-%202014.pdf); towards a rights-based approach for an inclusive urban regeneration with nature-based solutions (2021, in urbinat, https://urbinat.eu/articles/human-rights-gender-towards-arights-based-approach-for-an-inclusive-urban-regeneration-with-nature-based-solutions/); the project human rights city network (in https://humanrightscities.net). 31 in this sense, in some analyses the practices of claiming rights in the city might suggest new declinations of rights in an urban key, also from a theoretical point of view; see for example fernandez-wulff and yap, 2020. https://doi.org/10.17561/tahrj.v23.8623 https://unhabitat.org/human-rights-rule-of-law-and-the-new-urban-agenda https://unhabitat.org/human-rights-rule-of-law-and-the-new-urban-agenda https://digitallibrary.un.org/record/1303019?ln=zh_cn&v=pdf https://digitallibrary.un.org/record/1303019?ln=zh_cn&v=pdf https://fra.europa.eu/sites/default/files/fra_uploads/fra-2021-human-rights-cities-in-the-eu_en.pdf https://fra.europa.eu/sites/default/files/fra_uploads/fra-2021-human-rights-cities-in-the-eu_en.pdf https://www.hlrn.org/img/documents/gwangju%20guiding%20principles%20for%20human%20rights%20city%20adopted%20-%202014.pdf https://www.hlrn.org/img/documents/gwangju%20guiding%20principles%20for%20human%20rights%20city%20adopted%20-%202014.pdf https://www.hlrn.org/img/documents/gwangju%20guiding%20principles%20for%20human%20rights%20city%20adopted%20-%202014.pdf https://urbinat.eu/articles/human-rights-gender-towards-a-rights-based-approach-for-an-inclusive-urban-regeneration-with-nature-based-solutions/ https://urbinat.eu/articles/human-rights-gender-towards-a-rights-based-approach-for-an-inclusive-urban-regeneration-with-nature-based-solutions/ https://humanrightscities.net human rights in urban space a critical perspective the age of human rights journal, 24 (june 2025), e8623 issn: 2340-9592 doi: 10.17561/tahrj.v23.8623 14 augé, m. 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(2022). ‘urban citizenship for all? exploring the limits of an agenda in são paulo’s squats’, migration studies, volume 10, issue 2, june, pp. 214–234. https://doi.org/10.1093/migration/mnab046 zolo, d. (2000). ‘cittadinanza. storia di un concetto teorico-politico’, filosofia politica, n. 1, aprile, pp. 5-18. zullo, s. (2013). la dimensione normativa dei diritti sociali. aspetti filosofico-giuridici, torino: giappichelli. received: 12th january 2024 accepted: 22nd october 2024 https://doi.org/10.17561/tahrj.v23.8623 https://doi.org/10.1016/j.progress.2011.09.001 https://doi.org/10.1093/migration/mnab046 human rights in urban space a critical perspective 1. rights from states to cities 2. citizenship, democracy and the city: theoretical tensions 3. rights in urban space: the crisis of the civil, political, and social city 4. the urban fragmentation of statutes 5. right to the city vs. rights against the city references correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 491 correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards yevgen gerasymenko1 nataliia zadyraka2 viktoriia georgiievska3 nataliia kovalenko4 yulia leheza5 abstract: the purpose of this study is to investigate the correlation of administrative definitions of refugees and internally displaced persons, as well as compliance of these definitions with international standards. the methodological framework of the study included analytical, legal, and statistical methods of analysis. the study employed general scientific and special methods of cognition. the paper investigates the main provisions of the legislative framework at the international and national levels. the applied methods allowed obtaining reliable and reasonable conclusions and results. therefore, it is necessary to legislatively regulate the situation of persons who have been in ukraine for a long time in violation of the law. this paper presents the criteria for the correlation between the terms “refugee” and “internally displaced person”. the practical value of this study lies in the fact that the investigation of the correlation of administrative definitions of refugees and internally displaced persons and their compliance with international standards is essential for practitioners and theorists in legal science. keywords: legislation of ukraine, legal norms, legal analysis, comparative legal analysis, human rights. summary: 1. introduction. 2. materials and methods. 3. results and discussion. 4. conclusions. 1. introduction one of the terms used regarding persons who have left their place of permanent residence due to negative circumstances is “internally displaced person”. in international and national foreign law, this term is not frequently used, and these categories of persons 1. department of administrative law and procedure, taras shevchenko national university of kyiv, ukraine (gerasymenko7400@tanu.pro). 2. department of administrative law and procedure, taras shevchenko national university of kyiv, ukraine (zadyraka@uohk.com.cn). 3. department of journalism and new media, borys grinchenko kyiv university, ukraine (v-georgiievska@tanu.pro). 4. supreme court, ukraine (nata-kovalenko@nuos.pro). 5. department of civil, economic and environmental law, dnipro university of technology, ukraine (yu.leheza@ust-hk.com.cn). mailto:gerasymenko7400%40tanu.pro?subject= mailto:zadyraka%40uohk.com.cn?subject= mailto:v-georgiievska%40tanu.pro?subject= mailto:nata-kovalenko%40nuos.pro?subject= mailto:yu.leheza%40ust-hk.com.cn?subject= correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 492 are defined by such concepts as “internally displaced persons”, “internal refugees”, etc. (handbook for the protection…, 2006). thus, the term “internally displaced persons” (idps) is widely used in the practice of the office of the united nations high commissioner for refugees (unhcr). the main difference between idps and refugees is that such the former do not cross the state border and remain on the territory of the corresponding state. consequently, the differences are manifested in purely technical and legal aspects and are practically unrelated to the reasons that force people to leave their homes; moreover, sometimes these reasons can be quite the same (handbook for the protection…, 2006). the concept of forced migration appeared as a way of protection, additional to the status of refugees, which, on the one hand, would not be limited by the criteria for defining refugees. on the other hand, it could be applied to persons who may be granted asylum by the state itself in a part of its territory, and therefore the person does not have to leave it. at one time, unhcr was authorised by un resolutions to provide assistance to idps in particular cases as well. the unhcr’s mandate currently covers those individuals, as internal displacement is considered a perfectly acceptable alternative to international protection or asylum (unhcr’s mandate for refugees…, 2021). the un general assembly has directed it to respond to situations of internal displacement. this has been brought into the work of the inter-agency standing committee and, through the cluster approach, unhcr is the lead agency for idp protection. international standards on refugee status are based on the following fundamental principles (adeola & orchard, 2020, p. 415): – inalienability of fundamental rights and freedoms; – the right to citizenship and the right not to be arbitrarily deprived of citizenship or the right to change citizenship; – prohibition of the use of armed force to restrict the exercise of human rights by individuals or groups of persons or to deprive them of their national, religious, cultural, linguistic or ethnic identity; – bans on measures such as forced displacement; – the right to apply for and use asylum in other countries; – the right to leave any country, including one's own, and the right to return to any country; – non-expulsion of refugees. an internally displaced person is a person who is forced to move from a place of permanent residence inside their country as a result of armed conflict, internal disorder, systematic violation of human rights, including as a result of natural disasters (rymarenko, 1998). it reflects the main specifics of this category of persons, namely that they remain on the territory of their state. at the universal and regional international levels, idps are defined almost identically as a person or group of persons who have been forced or obliged to leave or abandon their homes or places of habitual residence, in particular as a result of or to avoid the consequences of armed conflict, violence, human rights violations, natural or man-made (anthropogenic) disasters, and who have not crossed internationally recognised state borders (cantor, 2018, p. 192). a certain specification of the definition regarding its individual aspects, for example, the characteristics of state borders as internationally defined, does not change the essence of the definition itself. yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 493 the grounds for internal displacement are also much less specific in this definition than the grounds for abandonment of the country of origin by refugees, and cover a much wider circle of people (special rapporteur on the human…, 2021). if people displaced from their homes do not have the means or desire to cross the border, they will not be considered refugees, even if they and the refugees share many similar circumstances and problems (ley general de víctimas…, 2012; ley número 487…, 2014). most idps are citizens of the country where they continue to reside, and therefore the category of these persons has the same rights as other citizens of this country. at the same time, these individuals and their situation at the international level report their basic and often rather serious needs for specialised protection. the country of resettlement has primary responsibility for the protection of refugees. the most important criterion for distinguishing between refugees and internally displaced persons is their place of residence and the countries that should provide them with protection. refugees are outside their country of citizenship or past permanent residence, while internally displaced persons are inside. thus, their protection is based on the territorial sovereignty of different states. the legal status of refugees is governed mainly by the rules of public international law, while the legal status of internally displaced persons is largely governed by the rules of national, mostly administrative, law. refugee migration is always forced. at the same time, internally displaced persons can be both forced (if they are forced to do so by negative circumstances inside the country) and forced migrants (if internal displacement is carried out using force of state). the purpose of this study is to investigate the correlation of administrative definitions of refugees and internally displaced persons, as well as compliance of these definitions with international standards. to achieve this goal, the following research objectives are formulated: – to characterize the formation and development of the concept of “refugee” and “internally displaced person” in legal science and its evolution in the legislation of ukraine; – to define the concept, features and content of the legal status of internally displaced persons as a subject of administrative and legal support; – to find out the ratio of general and special legal statuses of refugees; – to find out the problems of administrative and legal support of the status of internally displaced persons and to suggest possible ways of their organizational and legal solution. 2. materials and methods the methodological framework of the study included analytical, legal, and statistical methods of analysis. the study employed general scientific and special methods of cognition. one of the main analytical methods used was the analytical method, which allowed assessing the reciprocity between administrative definitions of refugees and correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 494 internal order. the comparative method was used to analyse the reciprocity between administrative definitions of refugees and internal exchanges. the descriptive method allowed presenting the results of the study in a logical sequence. a descriptive method is a type of scientific method that constitutes a system of procedures for collecting, primary analysing, and presenting data and its characteristics. the descriptive method is used in all disciplines of the social, humanitarian, and scientific cycle. the use of the evaluation method allowed concluding on the effectiveness of available interim measures by the competent authorities. the synthesis method allowed solving research problems by applying them to primary sources in this field. methods of induction and deduction were used to analyse the content and structure of legislative texts, features of legal provisions in the context of the subject matter. the structuralfunctional analysis enabled the consideration of the structural constitution features of modern institutions and organisations, their mutual interaction with other institutions whose activities somehow affect these issues. the historical method was used to analyse the reciprocity between administrative definitions of refugees and idps, as well as responsibility. 3. results and discussion internationally, the criteria for determining and minimum standards for the protection of idps are established in the un guiding principles on internal displacement (recommendation rec committee…, 2006). another document regulating certain aspects of the protection of idps is the pinheiro principles on housing and property restitution for refugees and displaced persons (“pinheiro principles”) (paraskeva, 2017). considering the compulsion and consequences of such displacement for both categories of refugees and idps, the pinheiro principles apply to both categories. a detailed analysis of the content of these principles and the legislation of ukraine for compliance with their requirements will be addressed separately. however, even at first glance, their name suggests that these documents are not international legal acts, and therefore are not mandatory, but advisory in nature. however, the principles are based on international agreements in the field of human rights and international law, and therefore are considered by the united nations to be “an important international framework for the protection of internally displaced persons” (resolution 60/1…, 2005). a confirmation of the importance and binding nature of the principles as a regulatory source of standards for idps is that they are used by international courts, such as the european court of human rights, to justify their decisions. the council of europe also recommends the use of this definition and calls on member states to adhere to the principles and implement them in national legislation (pace, 2003). in particular, the parliamentary assembly of the council of europe recognised that the guidelines “constitute a standard for governments and other responsible authorities and intergovernmental organisations, and are an essential tool in their work with displaced persons”. it has also developed a regional framework of human rights standards. the key document of the european system for the protection of human rights is the convention for the protection of human rights and fundamental freedoms (european charter…, 2006). therewith, emphasising the high effectiveness of this convention, the council of yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 495 europe notes that the obligations assumed by the member states of the council of europe are much broader or “go beyond” the obligations established by the guiding principles (draft recommendation…, 2006). certain european standards for the protection of idps are established by the european social charter (revised) (resolution of the verkhovna rada…, 2007), the framework convention for the protection of the rights of national minorities (framework convention for…, 1995), the european charter for regional or minority languages (convention for the protection…, 2006), recommendation 2367 “on the protection of victims of arbitrary displacement” (2021), etc. the events in crimea, which led to its annexation in march 2014 and the armed conflict that began in eastern ukraine in april 2014, led to a massive displacement of the civilian population both inside and outside the country. as of july 2020, according to the ministry of social policy of ukraine, 1.449,415 idps were registered in ukraine. as of june 2016, 1.785,740 idps were officially registered in ukraine. furthermore, in the first half of 2016, according to official documents, there were more than a million ukrainians in other countries who applied for refugee status or otherwise tried to settle their stay in border states. most of them are located in the russian federation (1.092,212) and belarus (130.056) (bolin et al., 2016, p. 8). notably, the verkhovna rada of ukraine responded quite quickly to the challenges that arose as a result of the above events. in october 2014, the law of ukraine no. 1706vii “on ensuring the rights and freedoms of internally displaced persons” was adopted. however, ukraine had no experience in protecting the rights of idps. evidently, the provisions of this law turned out to be imperfect, which required bringing it in line with international standards (beyani, 2015). as a result, numerous changes were introduced into the law no. 1706-vii, including improvements in the definition of an internally displaced person. thus, the primary definition of an idp as a citizen of ukraine permanently residing in ukraine, who was forced or who independently left their place of residence as a result of or to avoid the negative consequences of armed conflict, temporary occupation, widespread manifestations of violence, mass violations of human rights and emergencies of a natural or anthropogenic nature has been expanded (part 1, paragraph 1, article 1 of the law of ukraine “on ensuring the rights and freedoms of internally displaced persons”) (law of ukraine no. 1706-vii…, 2015). considering the latest amendments to the law, an idp is considered to be “a citizen of ukraine, a foreigner or a stateless person who is legally located on the territory of ukraine and has the right to permanent residence in ukraine, who was forced to leave or abandon their place of residence as a result of or to avoid the negative consequences of armed conflict, temporary occupation, widespread manifestations of violence, human rights violations, and emergencies of a natural or anthropogenic nature” (part 1, paragraph 1, article 1 of the law of ukraine “on ensuring the rights and freedoms of internally displaced persons”). in compliance with the legislative requirements, the cabinet of ministers of ukraine approved an action plan for the implementation of the national human rights strategy, which was approved by the cabinet of ministers of ukraine on november 23, 2015, in paragraph 122 of which the government instructed “to develop and approve methodological recommendations for conducting an expert examination of draft correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 496 regulations affecting the rights of idps in terms of compliance with the un guiding principles on internal displacement, to ensure, as established in the expected result of the national strategy, that “international legal mechanisms are used to protect the rights and freedoms of internally displaced persons” (law of ukraine no. 501/2015…, 2015). this wording further emphasises the importance and role of the guiding principles for the settlement of legal relations involving idps to ensure the enjoyment of their rights and freedoms. figure 1 demonstrates the criteria for the correlation between the terms “refugee” and “internally displaced person” 1. reasons for displacement 2. type of displacement 3. list of persons who are granted appropriate protec�on 4. the type of protec�on provided 5. elements of a person's legal protec�on or features of the legal status figure 1. criteria for correlation between the terms “refugee” and “internally displaced person” therewith, in general, the wording of the definition of idps in the law of ukraine “on ensuring the rights and freedoms of internally displaced persons” (2015) generally corresponds to international standards in this area with certain reservations. therefore, it is considered appropriate to compare these definitions and formulate particular proposals for improving the definition of idps in the legislation of ukraine. both idps and refugees are forced migrants or displaced persons, so the grounds for recognising a person as a refugee and idps, in particular the reasons for displacement, may coincide. basically, these are certain negative events and situations related to threats to life, freedom, and other fundamental rights of the individual. they are most broadly described in idps as the negative consequences of armed conflict, temporary occupation, widespread violence, human rights violations, and natural or anthropogenic emergencies. on the other hand, the grounds for persecution of refugees, both universally and legislatively, are defined in a rather limited fashion, which forced the world community to search for additional tools for the protection of persons, as already mentioned. analysis of the list of reasons for displacement, defined in part 1, paragraph 1, article 1 of the law of ukraine no. 1706-vii “on ensuring the rights and freedoms of internally displaced persons”, suggests that it partially complies with universal standards. at first glance, it even appears broader than the list of reasons defined in the guidelines on internal displacement. after all, among the reasons for displacement, the ukrainian law separately defines temporary occupation, which in recent years has been considered one of the main reasons for internal displacement in ukraine. yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 497 therewith, it is necessary to note some inconsistencies of law no. 1706-vii with international standards in the context of the reasons for displacement, which narrow the circle of idps in ukraine, and therefore should be eliminated. firstly, the list of reasons for displacement as defined in the guiding principles is not exhaustive, which is conditioned upon the use of the word “in particular” before the list itself. part 1, paragraph 1, article 1 of the law no. 1706-vii lacks this essential nuance, considerably narrowing the list of reasons for displacement in national legislation compared to universal legislation. furthermore, this shortcoming massively reduces the universality of the current law and the possibility of its prompt application to situations of internal displacement that may arise in the future, and which are currently not taken into account by the law. secondly, in contrast to the guiding principles, under paragraph 2, article 1 of the law no. 1706-vii, the circumstances that caused the displacement are considered to be in public domain and do not require proof if information about them is contained in the official reports (communications) of the united nations high commissioner for human rights, the organisation for security and co-operation in europe, the international committee of the red cross and red crescent, the commissioner for human rights of the verkhovna rada of ukraine, is posted on the websites of the specified organisations, or if relevant decisions have been taken by the authorised state bodies in respect of such circumstances. there is no doubt that such an amendment to the definition of idps in ukrainian legislation creates additional restrictions in comparison with universal standards for the protection of idps, and therefore should be excluded. in addition, the list of subjects of official reports on relevant events, namely the united nations high commissioner for human rights, the organisation for security and co-operation in europe, the international committee of the red cross and red crescent, the commissioner for human rights of the verkhovna rada of ukraine is formulated as cumulative. this means that the absence of relevant information on the website of one of these entities is sufficient, if the authorised state bodies have not made appropriate decisions regarding such circumstances, to force the person to prove the validity of the circumstances that forced them to migrate internally. there is no doubt that such a specification of universal standards is inappropriate, insufficiently justified, and therefore such norm should be excluded from the current legislation of ukraine. manifestations of violence as causes of internal displacement both in the legislation of ukraine and in international documents are described by such a feature as “ubiquity”. the term “ubiquitous” (“ubiquity”) is not defined by the legislation of ukraine. explanatory dictionaries of the ukrainian language define “ubiquitous” as such that is, happens, occurs, happens, etc. everywhere. evidently, this term lacks certainty and specificity, at least regarding the territory that sees manifestations of violence everywhere, the number of such manifestations, their objects, etc. this creates additional opportunities for the subject of power to interpret it at its own discretion. returning to the distinction between the definitions of idps and refugees, they also have different definitions of the subjective element of the grounds for displacement, or the subjective component – awareness of the need to make a decision to leave their permanent place of residence and seek asylum or protection. in general, the introduction of such a subjective element as fear of persecution in the definition of refugees is conditioned by correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 498 the need to provide people with the opportunity to use protection proactively, without expecting the persecution itself on the appropriate grounds. consequently, in the definition of refugees, the subjective side of the decision to seek asylum is formulated through its psycho-emotional element – the motive – the fear of persecution on certain particular grounds. at the same time, the definition of idps does not cover such a subjective factor as fear. instead, a more conventional construction is used to describe the subjective side of the act, namely the purpose (“to avoid negative consequences...”), which is mainly related to consciousness, planning, calculation for the corresponding result. therewith, legal science conventionally uses the terms “purpose (goal)” and “motive” mainly to describe illegal acts as the purpose (goal) and motive of an offence – an optional feature of the subjective side of an administrative offence, for example. the motive and purpose of an administrative offence constitute independent signs of the subjective side of its composition, they are two aspects of a person's mental behaviour. the motive of an administrative offence is internal motives determined by needs and interests, realised by a person, which cause them to decide to commit an offence and control the actions of the offender upon committing it (gerasimenko, 2000). motive – the incentive for a person's behaviour and actions, which arises under the influence of their needs and interests; the direct internal incentive reason for criminal acts. the purpose has conventionally been interpreted as “what the offender desires, what they want to achieve by committing an offence. in other words, the purpose is a reflection of the direct result in the human psyche that should occur as a result of this person's act" (gerasimenko, 2000). however, recently the purpose (goal) has been defined in administrative law in the context of strategic planning and other aspects of public administration as “a perfectly predictable result of activity in a certain area (the logical result of setting a goal)” (national mediation…, 2021). for example, “the purpose of the position (title) is the predicted result of performing tasks in the civil service position, determined by the decision of the head of the state body”. a strategic purpose is defined as “the desired impact of national policy in the field of human rights in the strategic vectors envisaged in the national strategy”. motives still remain a category that is legislatively defined for negative acts. and only in exceptional cases it is used to justify certain decisions of subjects of power, such as, for example, “forced alienation of objects of ownership can be applied only as an exception for reasons of public necessity based on and according to the procedure established by law, and subject to preliminary and full reimbursement of their value…” pursuant to article 321 of the civil code of ukraine (2004). clearly, at first glance, the type of displacement is the criterion that most expressly distinguishes these categories. like refugees, idps are forced migrants, with the difference that refugees migrate across borders between states, while idps migrate within the country. however, in some cases, such as in the former yugoslavia, borders change regularly during the conflict. this led to the fact that idps did not initially cross internationally recognised state borders, but later ended up abroad, for example, “they became internally displaced persons from kosovo living in montenegro” (european social charter, 2019). there are other cases of difficulty in distinguishing between refugees and idps based on the nature of displacement. for example, the situation in georgia (abkhazia and north ossetia) and ukraine (autonomous republic of crimea), where the status and state borders of the yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 499 territory became the subject of dispute. and the recognition of borders raises the question of the correct distinction between refugees and idps. in such cases, a pragmatic but principled approach should be applied. for example, as the venice commission points out, in georgia, persons displaced as a result of conflicts in the self-proclaimed autonomous region of south ossetia (as well as for abkhazia) who remained on the territory of georgia were classified as victims of the conflict in the former region of south ossetia, and their status was changed from “refugees and internally displaced persons” to “forced migrants” (draft opinion no. 364/2005…, 2005). therewith, the authors of this study are forced to address the existence of certain discrepancies between the legislative and universal definitions of idps regarding the nature of displacement. firstly, the legislative definition does not require that the migration of idps should take place within the “internationally recognised” state borders. however, according to the guiding principles on internal displacement, “… internally displaced persons are persons or groups of persons who have been forced to leave their homes or habitual places of residence … and who have not crossed internationally recognised state borders”. notably, currently there are territories within the internationally recognised state borders of ukraine that are not recognised by all foreign states as the territory of the state of ukraine. in particular, this refers to the territory of the autonomous republic of crimea. considering the above, the authors of the present study believe that it is necessary to supplement the legislative definition of idps with the appropriate wording. secondly, the universal definition does not contain any restrictions on the place of residence of idps at the time of occurrence of circumstances that forced the person to migrate. similarly to the so-called sur place refugees, the universal definition of idps also applies to persons who were temporarily absent from their place of permanent residence at the time when the situation of internal displacement occurred. the explanation to the guiding principles states that the concept of migration within state borders should be interpreted in a “broad sense”. in particular, this requirement is to be met even in the case of idp transit through the territory of a neighbouring state for the purpose of protection in a safe part of their home country, as well as in the case of voluntary or forced return of a person to their home country from abroad, if the person is unable to return to their habitual place of residence due to the occurrence of the reasons specified in the definition; or voluntarily went to another part of their state and cannot return home because the events that occurred in their absence make such return impossible or unjustified (kalin, 2002, p. 4). therefore, for example, students and persons who temporarily resided in another place, and who, due to certain circumstances in the crimea and in certain regions of donetska and luhanska oblasts, are unable to return to their place of permanent residence, should be considered as idps. the definition of idps formulated in part 1, article 1 of the law of ukraine “on ensuring the rights and freedoms of internally displaced persons” does not explicitly exclude such persons. however, other provisions of the law, such as the indication that the address of an idp's abandoned place of residence within the meaning of the law no. 1706-vii is recognised as the address of a person's place of residence at the time of occurrence of the circumstances specified in part 1, article 1 of this law, correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 500 limit the ability to provide protection to such persons as idps. after all, if a person has a permanent place of residence on the territory of the autonomous republic of crimea, temporarily resided in the city of kyiv at the time of the circumstances specified by law no. 1706-vii (2015) that render the return to home impossible, their place of residence at the time of such circumstances is considered kyiv and such a person does not have the right to be recognised as an idp. the only exception to this restriction is established by part 5, article 4 for students who received a certain educational qualification level and had registration of their place of residence in dormitories. after de-registration, they have the right to receive a certificate of registration of an idp if they do not want to return to their previous place of residence due to circumstances determined by the law. at the same time, persons transferred subsequently to the relevant circumstances in the absence of an identity document and citizenship of ukraine, or in an identity document confirming its special status, license plates in an administrative-territorial unit must prove that they are located in the administrative territory from which the internal transfer takes place, on the day of the circumstances that led to the internal transfer, for example, a military id card, a work record, confirmation of ownership of movable property, immovable property, a certificate of primary secondary education, a certificate of higher secondary education, a certificate of professional and technical education, a certificate of higher education (scientific degree), certificate of education, decision of the district, municipal district in the city of kyiv or the state administration of sevastopol, the executive body of the city or municipal district council on the placement of a child in a children's institution, foster family, family-type orphanage, guardianship (medical documents, photos, videos, etc.) (part 7, article 4 of the law no. 1706-vii), which directly contradicts international universal standards for the protection of idps. therewith, this requirement of the law no. 1706-vii directly contradicts the norm of part 1, article 2 of the law of ukraine “on freedom of movement and free choice of place of residence in ukraine”, according to which registration of the place of residence or stay of a person or its absence cannot be a condition for the enjoyment of the rights and freedoms provided for by the constitution, laws or international treaties of ukraine, or serve as the basis for their restriction (law of ukraine no. 1382-iv…, 2019). in addition, the universal definition has an essential element in determining the place of previous residence of idps, or which idps leave, namely “… who were forced to leave their homes or habitual places of residence …”. in other words, the universal definition does not use refugee-specific categories of “previous permanent residence”. by universal definition, it is sufficient for a person to leave their home, even if it was not located in the person's permanent place of residence, to be recognised as an idp and receive appropriate protection. moreover, there is no need to prove the previous registered place of residence. the authors of this study believe that in this part, the definition of idps in the law of ukraine no. 1706-vii requires harmonisation with universal standards. the issue of the list of refugees and idps, at first glance, is simple and does not require additional research. if refugees are non-citizens of the relevant state (foreign citizens and nationals, or stateless persons), then idps, on the contrary, are primarily citizens of the relevant state. therewith, according to the definition in the law no. 1706-vii, a yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 501 refugee, since they are a foreigner or a stateless person, can also become an idp under the appropriate circumstances. as can be seen, the circle of both groups of people requiring appropriate protection, refugees and idps, may coincide. the authors of this study consider it appropriate to focus on certain points of discussion. notably, as in many other cases, the legislative definition of idps narrows the definition set out in the guiding principles on internal displacement in terms of the circle of persons. after all, per the legislative definition, an idp is “a citizen of ukraine, a foreigner, or a stateless person who is legally located on the territory of ukraine and has the right to permanent residence in ukraine”. the universal definition of idps does not contain any such reservation. according to the latter, any person can be an idp in the event of the relevant circumstances specified in the definition, provided that they are in the country not just in transit, but more or less permanently, that is, they, as indicated in the definition, will be “forced to leave their homes or habitual places of residence”. thus, it is quite reasonable for idps to include the following categories of persons: citizens of the country concerned; displaced stateless persons who have had a habitual residence in a certain state; citizens of another country who have lived in the specified country for a certain time, perhaps even for generations, and have generally lost contact with the country of which they are citizens; citizens of another country who have permanent residence in the specified country, because they were allowed to enter the territory for permanent or long-term stay; refugees who have returned to their country of origin, but are unable to return to their homes or cannot find another long-term solution due to social or economic integration in another part (protection of the rights…, 2018). notably, the legislation of ukraine in this part has undergone certain positive changes. thus, according to the first version of the law of ukraine “on ensuring the rights and freedoms of internally displaced persons”, only “a citizen of ukraine permanently residing in ukraine” could be recognised as an idp. thus, the law excluded from the definition of idps stateless persons and other non-citizens of ukraine, who, however, are included in the idps according to the universal definition. subsequently, on february 18, 2015, draft law no. 2166 “on amendments to certain laws of ukraine on strengthening guarantees of respect for the rights and freedoms of internally displaced persons” was submitted to the parliament of ukraine. on november 3, 2015, the verkhovna rada of ukraine voted for this draft law, which, after considering the comments of the president of ukraine, was signed last on january 6, 2016. the adopted amendments expanded the circle of persons to whom the law extended its effect to include foreigners residing on the territory of ukraine, including certain categories of stateless persons. subsequently, despite the relevant criticism and recommendations of international organisations, no changes or amendments have been introduced to the definition of idps as amended by law no. 921-viii of december 24, 2015 (law of ukraine no. 921-viii…, 2015). however, even considering the positive dynamics of improving the legislative definition of idps, the current law still excludes from the definition of idps the stateless persons who cannot prove the fact of legally residing on the territory of ukraine and have the right to permanent residence in ukraine. in other words, the definition of idp covers only “documented” stateless persons. stateless idps without valid documents are excluded from the scope of the law. such persons, for example, include those who currently have invalid ussr passports. correlation of administrative definitions of refugees and internally displaced persons: geopolitical concretion in ukraine and its compliance with international standards the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 502 notably, since 2013, ukraine has been a party to the 1954 convention on the status of stateless persons and the 1961 convention on the reduction of statelessness. however, ukrainian legislation remains inconsistent with those instruments. in particular, this concerns the unsettled procedure for determining the status of stateless persons, which would allow undocumented stateless persons to obtain documents on the legality of their stay on the territory of ukraine and the right to permanent residence in ukraine (budivska and orlova, 2017, p. 139). therefore, “the problem of statelessness of persons with an unregulated status on the territory of ukraine”, namely citizens of the former soviet union (both refugees from the former republics of the ussr and those born in the territories of these former republics) remains urgent, many of whom do not have any documents other than passports of the former ussr, do not have citizenship of any state and are actually deprived of the opportunity to obtain citizenship of ukraine. this leads to a violation of their rights, in particular social and economic ones (order of cabinet of ministers…, 2017). 4. conclusions the presented paper investigated the main provisions of the legislative framework at the international and national levels. the applied methods allowed obtaining reliable and reasonable conclusions and results. hence the necessity of legislatively regulating the status of persons who have been on the territory of ukraine for a long time in violation of the legislation. the specified non-conformity of the legislation of ukraine should be eliminated in two parallel ways. effective access to justice is also an essential tool for compensating for all damage caused to idps, including displacement. it is also a means of bringing to justice those responsible for international crimes. access to justice may include issues such as legal aid, judicial fees, alternative dispute resolution, and even the adequacy of the compensation reimbursed by the court. considerable socio-economic inequalities need to be factored in to ensure effective access to justice for people with or without limited resources, and idps require the necessary structural and educational support to take advantage of the remedies available. thus, this study has achieved its purpose, namely the investigation on correlation of administrative definitions of refugees and internally displaced persons and compliance of these definitions with international standards. references adeola, r., orchard, ph. 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(1998). migration processes in the modern world: global, regional and national dimension. conceptual apparatus, conceptual approaches, theory and practice. kyiv: dovira. https://zakon.rada.gov.ua/laws/show/1706-18#text https://zakon.rada.gov.ua/laws/show/1706-18#text https://zakon.rada.gov.ua/laws/show/501/2015#text https://zakon.rada.gov.ua/laws/show/921-19#text https://zakon.rada.gov.ua/laws/show/921-19#text http://wp.presidencia.gov.co/sitios/normativa/leyes/documents/juridica/ley%201448%20de%202011.pdf http://wp.presidencia.gov.co/sitios/normativa/leyes/documents/juridica/ley%201448%20de%202011.pdf https://vlex.com.mx/vid/ley-numero-487-prevenir-575287502 https://nspp.gov.ua/home/povnovazhennya-ta-zavdannya-nspp https://nspp.gov.ua/home/povnovazhennya-ta-zavdannya-nspp https://zakon.rada.gov.ua/laws/show/482-2017-р#text http://www.assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17163&lang=en http://www.assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=17163&lang=en https://www.vplyv.org.ua/wp-content/uploads/2018/06/group-of-influence_analyses.pdf https://www.vplyv.org.ua/wp-content/uploads/2018/06/group-of-influence_analyses.pdf https://pace.coe.int/en/files/29079 https://rm.coe.int/16806b5ab1 https://zakon.rada.gov.ua/laws/show/995_e56#text https://zakon.rada.gov.ua/laws/show/995_e56#text http://search.ligazakon.ua/l_doc2.nsf/link1/t070004.html yevgen gerasymenko; nataliia zadyraka; viktoriia georgiievska; nataliia kovalenko; yulia leheza the age of human rights journal, 18 (june 2022) pp. 491-505 issn: 2340-9592 doi: 10.17561/tahrj.v18.6864 505 special rapporteur on the human rights of internally displaced persons. (2021). available at https://ijrcenter.org/un-special-procedures/special-rapporteur-on-thehuman-rights-of-internally-displaced-persons/ unhcr’s mandate for refugees, stateless persons and idps. (2021). available at https:// emergency.unhcr.org/entry/55600/unhcrs-mandate-for-refugees-stateless-personsand-idps received: december 12th 2021 accepted: april 12th 2022 https://ijrcenter.org/un-special-procedures/special-rapporteur-on-the-human-rights-of-internally-dis https://ijrcenter.org/un-special-procedures/special-rapporteur-on-the-human-rights-of-internally-dis https://emergency.unhcr.org/entry/55600/unhcrs-mandate-for-refugees-stateless-persons-and-idps https://emergency.unhcr.org/entry/55600/unhcrs-mandate-for-refugees-stateless-persons-and-idps https://emergency.unhcr.org/entry/55600/unhcrs-mandate-for-refugees-stateless-persons-and-idps correlation of administrative definitions of refugees and internally displaced persons: geopolit abstract 1. introduction 2. materials and methods 3. results and discussion 4. conclusions references the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 125 the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal* silvia romboli** abstract: this article has two main purposes. on the one hand, it aims to systematise the progress made by the european court of human rights (ecthr) in the creation of common standards for the protection of trans people, in particular regarding rectification of one’s registered sex. on the other, it intends to verify to what extent said standards have been incorporated into the draft bill on lgbti rights currently under discussion in spain. to this end, it will analyse the draft bill from the standpoint of the case-law developed by the ecthr on the matter. it will also make some critical reflections on this case-law from the standpoint of the rights it is set to protect. keywords: european court of human rights, privacy, self-determination, sex-gender identity, spanish legislation. summary: 1. introduction. 2. the “common standards” developed by the ecthr on the right to rectify one’s legal sex. 2.1. the first twenty-five years of case-law on the subject. 2.2. subsequent case-law. 2.3. the most recent ruling to date (2021) and a first systematisation of the common rules developed by the ecthr. 3. the incorporation of the common rules elaborated by the ecthr in the legislation of member states. 3.1. the spanish case: the current situation and the draft of the “trans law”. 3.2. a look at the main critical aspects of the spanish "trans law". 4. final considerations. bibliography. 1. introduction the different forms of discrimination directed at lgbtiq+ persons have been addressed by a substantial number of international and supranational measures, both legally binding and not. these include the yogyakarta principles (principles on the application of international human rights law in relation to sexual orientation and gender identity 20061) or the decision of the world health organization (who) from 2018 to eliminate gender dysphoria from the list of mental illnesses or disorders.2 although different in source and *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. ** senior lecturer (profesora contratada doctora) of constitutional law, universidad ramon llull, esade, spain (silvia.romboli@esade.edu). 1. available at: https://yogyakartaprinciples.org/principles-en/ [accessed: 30 november 2021]. on the significance of this document, see peribáñez blasco 2018; among the authors against it, see marsal 2011. 2. the list of the icd-11 (international classification of diseases, 11th revision) is available at: https:// icd.who.int/en [accessed: 30 november 2021]. see borraz 2018 and de benito 2018 on this topic; on the preceding debate, see belluck 2016. https://yogyakartaprinciples.org/principles-en https://icd.who.int/en https://icd.who.int/en the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 126 scope, both these documents point to the same purpose: granting lgbtiq+ persons equal dignity with all others, ending the inequalities and discriminations affecting them, hence ensuring that they can enjoy their rights to the same extent as people with normative sexgender identities. international instruments, however, have proven largely insufficient to bring us closer to this aim, particularly as they often consist of soft-law measures. recent news reaching us from member states of the council of europe, such as russia, poland, hungary,3 or italy,4 most of which are also eu members, testify to an impulse in the opposite direction, one marked by discrimination and stigmatisation. in view of this, it is becoming increasingly necessary to go beyond non-binding principles and provide basic international guidelines and standards for the protection of lgbtiq+ persons, that is, to establish common mandatory standards for states. in this regard, the different actors in the international community have a fundamental role to play. this article will focus specifically on the european court of human rights (hereinafter ecthr, or strasbourg court) and the standards of protection it has developed for the rights of trans persons based on the european convention on human rights (hereinafter echr). decisions of the ecthr influence legislation in the member states of the council of europe, in particular where the state in question has been found in violation of a right recognised in the echr.5 the introduction of minimum common standards for the protection of the rights of trans persons by the ecthr is thus often a crucial step on the road towards their effective protection at the national level. the aim of this article is twofold. first, it purports to examine the case-law developed by the ecthr on this issue, most notably in the face of the refusal by national public authorities to allow for the rectification of trans persons’ legal sex marker.6 as we will see, the response of the strasbourg court to these cases has gradually evolved in the direction of greater recognition of the right to sex-gender identity. the aim here is to analyse this evolution and the common minimum standards of protection for trans persons’ rights in the ecthr’s case-law as they currently stand. 3. the situation has become so obvious and extreme that the european union has had to intervene; see pellicer 2021. 4. recently (27 october 2021) the italian senate overthrew the so-called “disegno di legge zan”, which aimed to add sex, gender, sexual orientation and identity, as well as disability, to race, ethnicity, nationality and religion as suspicious grounds for discrimination. the contents of the reform are available at: https:// www.repubblica.it/politica/2021/10/27/news/legge_zan_storia_del_disegno_legge_iter_parlamentare_ polemiche-323935250/ [accessed: 30 november 2021]; on the recent vote in the italian senate, see casadio 2021. 5. consider, among others, the decision of the ecthr in the rumasa case (ruiz mateos v. spain, 23 june 1993) and the subsequent reform of the ley orgánica del tribunal constitucional of 2007; or the approval of the italian law on civil unions for same-sex couples after the decision of the ecthr on oliari et al. v. italy (21 july 2015). about them see, respectively, chueca sancho 1994; viggiani 2016. 6. other cases decided by the ecthr refer, for example, to trans persons’ access to marriage under certain conditions; see lorenzetti 2016. https://www.repubblica.it/politica/2021/10/27/news/legge_zan_storia_del_disegno_legge_iter_parlamentare_polemiche-323935250 https://www.repubblica.it/politica/2021/10/27/news/legge_zan_storia_del_disegno_legge_iter_parlamentare_polemiche-323935250 https://www.repubblica.it/politica/2021/10/27/news/legge_zan_storia_del_disegno_legge_iter_parlamentare_polemiche-323935250 silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 127 complaints against the refusal of a member state to rectify an applicant’s legal sex, to adapt it to their (trans) sex-gender identity, involve the alleged violation of the right to respect for private life as recognised in article 8 of the echr. as we will see, there has been an interesting evolution in the strasbourg court’s approach to this right when dealing with trans persons’ sex-gender identity. this regards both the content of the right and the progressive reduction of states’ margin of appreciation, an issue closely intertwined with the estimated existence, or not, of a “european consensus” on a controversial and sensitive issue. casting a critical look onto the ecthr’s common minimum standards of protection for trans persons' rights above member states’ margin of appreciation is one of the main purposes of this article.7 second, the aim is also to verify the incorporation of said common minimum standards in spain. this is part of a wider line of research that intends to explore the incorporation of the ecthr’s standards of protection of trans persons’ rights in the member states of the council of europe, notably through legislation. indeed, the case-law of the ecthr makes little sense if we do not verify the effective weight it is given at the national level as a motor for change. spain and the draft bill on lgtbi rights currently under discussion here will be the focus of the second part of this article. 2. the “common standards” developed by the ecthr on the right to rectify one’s legal sex most of the cases trans persons have brought before the ecthr have to do with requests for rectification of their sex marker, at it appears in the civil registries of a member state. they concern a kind of original moment, a fundamental issue without which a trans person cannot even begin to fully enjoy their rights.8 the ecthr case-law has fluctuated between granting member states a (more or less wide) margin of appreciation on the issue, based on the lack of european consensus around it, and the establishment of certain basic protection criteria. gradually, “case by case”,9 the ecthr has modified the way it addresses the protection of trans persons in this field. the move has been towards widening and strengthening these criteria, as we shall now see. 2.1. the first two decades of case-law on the subject this phase covers the period that expands between the first case that came to the court regarding the protection of the rights of transsexual persons, van oosterwijck v. belgium (6 november 1980), and the christin goodwin affair (2002), which as we shall see represented a turning point in the protection of trans persons by the ecthr. between 1980 and 1992, the ecthr did not protect trans people’s rights. the two most important and notorious cases during this period are rees v. uk (17 october 1986) and cossey v. uk (27 september 1990). both concerned the denial of authorization to 7. romboli 2020. 8. for a more complete review of the ecthr case-law on the matter, see romboli, 2021. see also trucco 2003. 9. álvarez rodríguez 2019: 55. the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 128 modify the indication of sex in thei applicants’ birth certificates, which according to them amounted to the violation of articles 3 (prohibition of torture), 8 (right to private and family life) and 12 (right to marry) of the echr. in both of them, the ecthr referred to the fact that member states shared no common and uniform criteria in such a sensitive matter; therefore, it ruled, states maintained a wide margin of appreciation to strike a balance between the public and the individual interests at stake. the case of b. v. france (25 march 1992) brought about a first step forward, which however remained isolated for a time. the case also concerned a country’s denial, this time france, to allow the applicant, ms. b., a transsexual woman, to rectify her legal sexual identity in the civil registry. this time the ecthr reduced the state's margin of appreciation and stated that france’s refusal to grant the applicant the desired change of name was not based on a legitimate interest and entailed a violation of article 8 of the echr. this decision is relevant not only because of the ecthr’s actual ruling, but also because it reveals a significant change in sensitivity in its approach to the matter at hand, specifically as it refers to the suffering and humiliation endured by trans people whose identity does not find legal recognition. however, in sheffield and horsham v. uk (30 july 1998), its next decision on this matter, the ecthr went back to its previous doctrine and made statements that reveal the little consideration non-normative sex-gender identities were granted at that time. the real change arrived in 2002 with christine goodwin v. united kingdom (11 july 2002). although similar to previous cases, here the ecthr considered that the time had come to overrule its previous case-law on this matter. its most important statements in this regard can be summarized as follows: 1. the lack of legal recognition of sex reassignment through surgery affects the private life of transsexual people and can entail a serious violation of the right to enjoy it, as recognised in article 8 of the echr. 2. the protection of trans persons is linked to the need to protect the dignity and freedom of individuals, both of which stand at “the very essence of the convention”, all the more so since article 8 of the echr covers the notion of personal autonomy and protects individuals’ personal sphere, including the right to define their own identity as human beings. 3. there is no denying a continued trend, not only towards greater social acceptance of trans people, but also towards legal recognition of the identity of operated transsexuals. 4. in the 21st century, trans people’s full enjoyment of their rights can no longer be considered a legally controversial issue, which legal systems can be given some time to accommodate; the ecthr specifically mentions the rights to free personal development and to physical and moral integrity (§ 90). the ecthr concluded that sexual identity fell within the scope of the right to private life as recognised in article 8 of the echr. as such, its protection had to be weighed against that of other interests, such as public order, public interest and legal certainty in areas such as access to records, family law, filiation, inheritance, social security silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 129 or insurance. however, the strasbourg court noted, the conflicts that may arise in these areas “are far from insuperable”; rather “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost” (§ 91). thus, for the first time, the ecthr modified the balance between the public and private interests involved in a transsexual’s claim for legal sex reassignment, recognised the prevalence of mrs. goodwin’s rights and stated that the united kingdom had violated article 8 echr. the national margin of appreciation to protect national interests gave way, therefore, to the need to protect the dignity, the free development of the personality and the right to sexual identity of the claimant, all of this in consideration of the evolution of social awareness and medical and psychological knowledge related to transsexuality. this doctrine was consolidated in van kück v. germany (12 june 2003). it is important to underline, in any case, that both this and the 2002 ruling refer to transsexuals who have already undergone surgery. we will return to this later. 2.2. subsequent case-law the following stage in the ecthr’s case-law on the matter, expanding from the first decade of the 21st century to date, meant the intensification of the protection of the trans persons. with (nearly) every decision it made, the ecthr took another small step forward. it is therefore interesting to single out the relevant decisions and the significant advances that they have brought along. a) in l. v. lithuania (11 september 2007) the ecthr paid greater attention to the situation of “distressing uncertainty” in which trans people find themselves in terms of developing their private lives and having their true identity recognised. this includes people who, as the plaintiff in this case, have had no access to sex reassignment surgery, but want to have it. b) hämäläinen v. finland (16 july 2014) marked another significant moment in the evolution of the case-law of the ecthr on the matter, at least for two reasons. first, this decision allowed the ecthr to clarify its criteria regarding the scope of states’ margin of appreciation when trans identities are at stake. one of the factors it mentions as relevant stands out here: that margin is limited in cases where a particularly important aspect of an individual’s existence or identity is at stake. second, more attention is paid to the protection of physical integrity in sex reassignment procedures. indeed, although the ecthr did not rule against finland, it did start paving the way towards new standards of protection for trans people that have subsequently been consolidated. among them is the ban on imposing surgical sex reassignment as a requirement for rectifying one’s registered sex, which was imposed in 2015, as we shall now see. c) in y.y. v. turkey (10 march 2015) the ecthr ruled for the first time on the requirements that can be imposed for the rectification of legal sex markers. it examined the criteria established in the different member states of the council of europe. these included sterilisation, prior hormonal treatment, a so-called the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 130 “real life experience” test, a diagnosis of gender dysphoria, a period of psychotherapy, evidence of social integration and/or a waiting or observation period. the novelty lies in that the ecthr analysed whether these conditions respected article 8 of the echr (§§ 61-62). in this respect, it noted that the number of member states where trans people were no longer required to undergo reassignment surgery, sterilization or hormone reassignment therapy was gradually growing, although the states that do impose at least one of the conditions listed above remained the majority (§§ 42-43). it also mentioned recent resolutions and recommendations at the supranational level pointing in the same direction, such as the resolution of the parliamentary assembly of the council of europe 1728 (2010), on discrimination on the basis of sexual orientation and gender identity adopted on 29 april 2010, §§ 29-34. all this led the ecthr to rule that demanding prior sterilisation amounted to an interference with the plaintiff’s rights to physical integrity and private life which was neither necessary in a democratic society nor sufficiently justified, hence that turkey had violated mr. y.y.'s right to respect for private life, as recognised in article 8 echr. d) the case of a.p., garçon and nicot v. france (6 april 2017) meant another step forward in the protection of the physical integrity of transsexual persons and the corresponding restriction of the states’ margin of appreciation in the matter. the state (france) made the rectification of the registry indication of sex dependent upon the person’s undergoing prior surgical or medical treatment leading to irreversible sterilisation. the ecthr affirmed that “[t]he right to respect for private life under article 8 of the convention applies fully to gender identity, as a component of personal identity” (§ 95); this included trans people who have not undergone, and do not wish to undergo, sex reassignment treatment. when analysing states’ margin of appreciation to require sterility as a condition for rectifying a person’s legal sex, the ecthr affirmed that the international community had not reached consensus on that particular. however, that margin of appreciation had to be considered especially “limited” or “restricted” in these cases, for two main reasons. first, because they affect an essential aspect of people's identity, as well as their physical integrity, and the right to gender identity and personal development is a fundamental aspect of the right to respect for private life (§ 123). second, because the legislation of many member states and the statements of many european and international institutions were already moving towards the elimination of the sterilisation requirement (§ 124). some states still demand sterilisation, however (§ 126). in this respect the echr did not hesitate to state emphatically that “[m]edical treatments and operations of this kind affect an individual’s physical integrity, which is protected by article 3 of the convention […] and by article 8” (§ 127), since they negatively impact the physical and mental well-being of those who undergo it, as well as their emotional, spiritual and family life (§ 128). consent to it, moreover, cannot be considered freely granted when withholding it prevents the person from exercising their right to gender identity and free personal development. silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 131 e) in subsequent cases, the ecthr seemed to put on hold the doctrine developed of the a.p., garçon and nicot v. france. case, although it continued to take steps toward building standards for the protection of the rights of the transsexual group. in s.v. v. italy (11 october 2018), the ecthr added procedural “speediness” as a necessary demand for the protection of trans persons. it considered it no longer enough for states to ensure individuals may request a rectification of registered sex; in order not to violate the echr, they must also ensure that procedures do not leave individuals in a prolonged state of suffering. likewise, in x. v. former yugoslav republic of macedonia (17 january 2019), the strasbourg court ruled against the state because “the current legal framework in the respondent state does not provide «quick, transparent and accessible procedures» for changing on birth certificates the registered sex of transgender people” (§ 70). both cases offered the ecthr the chance to reaffirm and expand the arguments developed in a.p., garçon and nicot v. france against the imposition of medical treatments as requirements for the rectification of registered sex. doing so would have helped to consolidate a minimum essential standard for the protection of the rights of transsexual people; it had almost become a duty, considering the who’s 2018 decision to eliminate gender dysphoria from its list of diseases. the strasbourg court, however, preferred to ignore this controversial issue and considered the echr violated on other grounds. it thus was, as usual, very cautious when imposing protection standards to the detriment of the state's margin of appreciation in an area in which the international community had not (and still has not) reached a consensus. this attitude led to undesirable results in the case y.t. v. bulgaria (9 july 2020). the case concerned a transsexual man, mr. y.t., born with female biological features, who had identified as a man since adolescence. after voluntarily undergoing some sex-reassignment operations (a complete mastectomy, among others), he received an unjustified refusal to have his legal sex rectified in the civil status registry. the ecthr concluded that the applicant's right to physical integrity had not been violated, because mr. y.t. voluntarily and freely made the decision to undergo the surgical reassignment his country requires for legal gender reassignment (§ 68), a circumstance that differentiates this case from the 2017 a.p., garçon and nicot case. the ecthr ignored, however, that y.t.’s decision came after several years of seeing national authorities deny his request. it cannot be said to have been made freely.10 2.3. the most recent ruling to date (2021) and a first systematisation of the common rules developed by the ecthr the ecthr has reaffirmed the doctrine established in a.p., garçon and nicot v. france in its most recent decision on the matter, x. and y. v. romania (19 january 2021). in this case, the plaintiffs refused to undergo surgery to have their gender legally reassigned. the ecthr ruled that the romanian requirement that they do so violated their physical 10. romboli 2021. the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 132 integrity (§§ 160-161). the absence of a clear and predictable procedure in romania that would allow the rectification of registered sex in a fast, transparent and accessible way; the refusal of national authorities to recognise the applicants’ gender identity in the absence of reassignment surgery; the evolution of member states’ legislation on the matter; it all spoke, according to the ecthr, of a violation of article 8 echr, as well as of the rupture of the fair balance that the state must maintain between the general interest and the interests of the applicants (§§ 166-168). this decision raises some questions. first, the strasbourg court differentiated the situation of the plaintiffs in this case from that of plaintiffs in the cases decided between 2018 and 2020, based on whether or not they had expressed their desire to undergo reassignment surgery. yet, after the who struck gender dysphoria out of the list of diseases in 2018, the attention of the ecthr should focus on verifying whether member states continue to treat trans identities as pathologies and to impose medical treatments contrary to trans persons’ physical and moral integrity, their dignity and the free development of their personality. the ecthr, in particular, neglected to elaborate on how, where certain medical treatments are still required, consent to them could be vitiated. in accordance with its role in establishing minimum common protection criteria, the ecthr should focus on the need to promote the elimination of any obstacle states place in the way of exercising the right to self-determination in the realm of sexual identity. after all, as the strasbourg court has made clear, states have a limited margin of appreciation in this field and must also promote positive actions that allow transgender people to feel safe during the legal sex change procedure, seeing to it that these procedures are as fast, transparent and accessible as possible in order to avoid unnecessary suffering. second, in relation to the above but more generally, since 2017 and in particular in this 2021 decision, the ecthr appears to have refrained from spelling out and imposing the minimum standards member states may require when authorising a rectification of registered sex. these must point towards eliminating any pathologising requirement and moving away from the stigmatization of this group, towards affirming respect for private life, dignity and self-determination. in light of all of the above, the contributions of the ecthr regarding the protection of the transgender group in the face of the request to change the registered sex can be summarised in the following essential points, the basis of common rules for the member states: 1. the right to one’s sexual identity, as expressed through a rectification of registered sex and/or access to surgical or hormonal sex reassignment, is included within the scope of protection of article 8 of the echr. 2. states’ margin of appreciation to restrict access to rectification of registered sex is limited, despite the fact that a consensus on the matter has not yet been achieved among member states. 3. the imposition of certain requirements to authorise the rectification of registered sex may be in violation of the right to physical and moral integrity, in particular when they imply medical or psychological treatments which the person does not want to follow (article 3 echr). silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 133 3. the incorporation of the common rules elaborated by the ecthr in the legislation of member states once the common standards elaborated by the ecthr regarding the protection of the trans persons have been teased out, the next challenge is to ascertain to what extent they are effectively respected and implemented by member states.11 according to available data, eight european countries currently allow the so-called "free self-determination of gender" from the age of 18 (belgium, denmark, france, greece, ireland, luxembourg, malta and portugal), while further two allow it from the age of 16 (the netherlands and norway).12 on the other hand, countries such as hungary (a member state of the council of europe since 1990 and of the european union since 200413) or slovakia (a member state of the council of europe since 1993 and of the european union since 2004), among others, maintain the requirement of mandatory sterilisation to obtain legal recognition of gender reassignment.14 in august 2020 the european commission released a study that classifies countries into five groups, according to the requirements they impose, and their degree of obstruction they introduce, for rectifying a person’s official (registered) sex-gender marker.15 in a first group are the states that allow for rectifications, but have no specific legislation ruling it; the decision, therefore, is subject to the discretion of the decision-making body, which imposes requirements in a discretionary manner. a second group is made up of states that impose “intrusive” medical requirements for the modification of registered sex-gender markers, among which are sterilisation, hormonal therapy or a diagnosis of 'gender dysphoria'. countries in a third group impose a mental health diagnosis, opinions of medical experts and/or testimonies that support sex-gender reassignment. in the fourth group we find countries that impose no medical intervention or diagnosis on applicant, but oblige them to comply with some requirement prior to the reassignment procedure (a judicial authorization or ratification, for example, or divorce). the last group is made up of states that recognise the right to gender self-determination, thus allowing for a person’s sex-gender marker to be rectified based on the autonomous declaration of their will to do so.16 let us now turn to spain, in order to analyse to which of these groups it belongs. 3.1. the spanish case: the current situation and the draft of the “trans law” in 2007, law 3/2007, of 15 march, on gender identity,17 was passed in spain. according to this law, which modified some articles of the civil registry law from 8 june 1957, and which is still in force today, spanish nationals above the legal age may request the rectification of their sex as mentioned in the civil registry (article 1.1). the spanish 11. see lorenzetti 2017; rubio-marín & osella 2020. 12. álvarez, ayuso, abril 2021. 13. take, for example, the news broadcast on 2020, v. arancibia, 2020. 14. ilga europe, 2021 annual review: 15. available at https://www.ilga-europe.org/sites/default/files/2021/ full_annual_review.pdf [accessed: 30 november 2021]. 15. https://op.europa.eu/es/publication-detail/-/publication/7341d588-ddd8-11ea-adf7-01aa75ed71a1 [accessed: 30 november 2021]. 16. omedes 2021. 17. ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo de las personas. https://www.ilga-europe.org/sites/default/files/2021/full_annual_review.pdf https://www.ilga-europe.org/sites/default/files/2021/full_annual_review.pdf https://op.europa.eu/es/publication-detail/-/publication/7341d588-ddd8-11ea-adf7-01aa75ed71a1 the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 134 constitutional court declared article 1.1 unconstitutional in as far as it excluded minors in unqualified terms, without any regard to their maturity and to the stability of their situation of transsexuality (judgment 99/2019, 18 july).18 said registry modification would also entail the change of the person's name, so that it is not discordant with the registered sex (article 1.2). this law brought about an improvement in the legal protection of trans people. as its explanatory statements make clear, it aims to “guarantee the free development of the personality and dignity of the people whose gender identity does not correspond to the sex with which they were initially registered”. yet it sought to do so by finding a compromise between the rights of trans persons and the need to protect legal security and the general interests, as they were perceived to be at the time. in line with this, the law only allows “duly accredited” trans persons to rectify their registered sex, bearing in mind that, at a time of its passing, the “trans condition” (gender dysphoria) was still classified as a disease by the who. according to article 4 of the law, applicants for a rectification of their legal sex must meet two requirements: first, they must have been diagnosed with gender dysphoria, through a medical or clinical psychological report (which must contains very precise specifications19); second, they must have been medically treated for at least two years to accommodate their physical characteristics to those corresponding to the sex claimed, a circumstance that must also be proven through a medical report. excluded from this requirement are those persons who have undergone medical treatment for sexual reassignment surgery, or who certify that they cannot follow the medical treatments described above for reasons of health or age. it seems evident that these requirements do not comply with the current minimum standards of protection elaborated in the case-law of the ecthr. since 2007 this points to the depathologisation of trans persons and to states’ obligation to articulate a legal system that comprehensively protects their dignity and free development, as well as their right to physical integrity and respect for private life. legal systems that allow for rectification of legal sex only after verifying the presence of a medical diagnosis and prolonged medical interventions affecting the applicant’s body violate these principles and rights. aware of this, the spanish government has undertaken a long (and so tortuous20) path towards adjusting spanish legislation to current european standards. on 29 june 2021, the council of ministers approved the draft bill for the real and effective equality of trans people and for the guarantee of the rights of lgtbi people (anteproyecto de ley para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas lgtbi21), known as the preliminary project of “trans law”. 18 among the authors, in particular, see bustos moreno 2020; salazar benítez 2019. 19 paragraph 1 of article 1 specifies: “the accreditation of compliance with this requirement will be carried out by means of a report from a doctor or clinical psychologist, registered in spain or whose degree has been recognized or approved in spain, which must refer to: 1. the existence of dissonance between the morphological sex or physiological gender initially registered and the gender identity felt by the applicant or psychosocial sex, as well as the stability and persistence of this dissonance. 2. the absence of personality disorders that could have a decisive influence on the existence of the dissonance outlined in the previous point”. 20. this paper will not approach the social and political debates that accompanied this journey. on this topic, see ruth mestre’s contributions to this issue. 21. available at: https://www.igualdad.gob.es/servicios/participacion/audienciapublica/documents/apl%20 igualdad%20trans%20+lgtbi%20v4.pdf [accessed: 30 november 2021]. https://www.igualdad.gob.es/servicios/participacion/audienciapublica/documents/apl%20igualdad%20trans%20+lgtbi%20v4.pdf https://www.igualdad.gob.es/servicios/participacion/audienciapublica/documents/apl%20igualdad%20trans%20+lgtbi%20v4.pdf silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 135 the draft has two different, though related, parts:22 a first and general part includes measures for promoting the effective equality of lgbti people in areas such as labour, education, health or sports (title i) and also for the effective protection and compensation against discrimination and violence based on lgtbi grounds (title iii)23; a second part focuses on promoting the real and effective equality of trans people in particular (title ii), including the regulation of a new procedure for the rectification of legal sex (articles 37-44). this second part takes significant steps forward in the direction of adapting the spanish legal system to the most recent case-law of the ecthr in the matter. among the new elements introduced by the draft bill is the right of any spanish person to request the rectification of their legal sex as it stands in the civil registry (article 37), without the need to present a medical or psychological report, thus adapting spanish legislation to international standards that protect the right to self-determination in this field. likewise, the draft bill prohibits that the rectification of registered sex be made dependent on the previous modification of the appearance or bodily function of the person through medical, surgical or other procedures, thus effectively protecting the right to physical integrity of the persons.24 the draft also responds to the recent indications of the spanish constitutional court in its judgment 99/2019 cited above. to this end, it opens the right to rectify one’s legal sex to minors over sixteen years of age (article 37.1). minors between fourteen and sixteen years of age may also submit an application by themselves, albeit with the assistance of their legal representatives. in case of “disagreement between the parents or legal representative, between themselves or with the minor, a judicial defender will be appointed in accordance with the provisions of article 300 of the civil code” (article 37.2). in this way, the draft bill seeks to protect trans minors whose family situation is not supportive of their gender self-determination. minors between the ages of twelve and fourteen must obtain judicial approval for the modification of their registered sex (seventh final provision, which modifies law 15/2015, of 2 july, on voluntary jurisdiction). in all these cases, the best interests of the child must be the leading consideration at all times (article 38.4).25 22. this “merger” resulted from the need to find an agreement between the parties in the current spanish government and was open to numerous criticisms from lgbtiq+ activists. see for example, álvarez 2021; see also https://www.publico.es/sociedad/ley-trans-igualdad-acepta-fusionar-leyes-trans-lgtbi-llegaracuerdo-psoe.html [accessed: 30 november 2021]. 23. the draft bill also includes a brief title iv dedicated to “infractions and sanctions”, as well as additional, transitory provisions, and an abrogation provision. 24. art. 37.4: “the exercise of the right to rectify the registry indication of sex in no case may be conditioned to the prior presentation of a medical or psychological report regarding the disagreement with the sex mentioned in the birth certificate, or to the prior modification of the appearance or bodily function of the person through medical, surgical or other procedures”. 25. the best interest of the child has for years been recognised, both nationally and internationally, as a guiding principle of unavoidable compliance in all procedures that have to do with minors; see pizarro moreno & rivero hernández 2020; romboli 2019. https://www.publico.es/sociedad/ley-trans-igualdad-acepta-fusionar-leyes-trans-lgtbi-llegar-acuerdo-psoe.html https://www.publico.es/sociedad/ley-trans-igualdad-acepta-fusionar-leyes-trans-lgtbi-llegar-acuerdo-psoe.html the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 136 the text also allows people with disabilities to request the rectification of their registered sex with the support measures that may be required (article 37.3). it also mentions foreigners, notably foreigners without legal residence in spain and stateless persons (article 44).26 to be sure, article 68 establishes that "public administrations, within the scope of their powers, will guarantee foreign lgtbi persons who are in spain, regardless of their administrative situation, the ownership and exercise of the right to equal treatment and non-discrimination by reason of the causes established in this law in the same conditions as nationals, in the terms set forth in this law”. yet the draft excludes all foreign legal residents in spain, refugees and asylum seekers from the possibility of exercising the right to rectifying their legal sex-gender markers27. with regards to procedure, if on the one hand the draft bill eliminates all medical and psychological requirements, on the other it introduces a different structured procedure to articulate the necessary balance between the right to self-determination and the protection of national interests and legal certainty mentioned in all ecthr decisions. according to article 38, the applicant must appear before the person in charge of the civil registry office of their choice. they must fill in a form stating their disagreement with the sex mentioned in their birth certificate and request a rectification (article 38.2). the person in charge of the civil registry must provide relevant information, including the legal consequences of the intended rectification, the reversion regime, the measures of protection against discrimination, the existing associations and other organizations for the protection of rights in this area, etc. (article 38.3). upon receiving this information, the applicant may sign a first request for rectification of their registered sex as mentioned in their birth certificate (article 38.5). within a maximum period of three months, the competent administration will summon the applicant to appear again and ratify their request, thus asserting the persistence of their decision (article 38.6). once all relevant documents have been verified, and within a maximum period of one month from the date of the second appearance, the person in charge of the civil registry will issue the requested rectification (section 7).28 3.2. a look at the main critical aspects of the spanish "trans law" the “trans law” draft has been heavily criticised from different corners. the harshest and most insistent criticisms have come from some feminist sectors and the world of sports, both on the basis that gender self-determination opens the door to abuses and to nullification and frustration of many of the achievements long fought-for in the field of 26 article 44: “public administration must, within the scope of their its powers, enable procedures through which foreign persons without legal residence in spain who prove the legal or de facto impossibility of rectifying their registered sex, and their name where appropriate, in their country of origin, as well as stateless persons, may rectify their registered sex and name in the documents issued to them, provided they meet the legitimacy requirements provided for in this law, except that of being in possession of spanish nationality”. 27. in this regard, see sánchez & borraz 2021; see also https://kifkif.info/kifkif-reclama-la-inclusion-de-laspersonas-trans-migrantes-refugiadas-y-solicitantes-de-asilo-en-la-ley-trans-y-lamenta-su-exclusion-en-lapropuesta-que-ha-aprobado-este-martes-el-consejo-de-ministr/ [accessed: 30 november 2021]. 28. according to article 38.7, “the resolution will be open to appeal under the terms provided in the regulations governing the civil registry”. https://kifkif.info/kifkif-reclama-la-inclusion-de-las-personas-trans-migrantes-refugiadas-y-solicitantes-de-asilo-en-la-ley-trans-y-lamenta-su-exclusion-en-la-propuesta-que-ha-aprobado-este-martes-el-consejo-de-ministr https://kifkif.info/kifkif-reclama-la-inclusion-de-las-personas-trans-migrantes-refugiadas-y-solicitantes-de-asilo-en-la-ley-trans-y-lamenta-su-exclusion-en-la-propuesta-que-ha-aprobado-este-martes-el-consejo-de-ministr https://kifkif.info/kifkif-reclama-la-inclusion-de-las-personas-trans-migrantes-refugiadas-y-solicitantes-de-asilo-en-la-ley-trans-y-lamenta-su-exclusion-en-la-propuesta-que-ha-aprobado-este-martes-el-consejo-de-ministr silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 137 women's rights.29 despite the social echo these criticisms have gained, however, i will not dwell on them here. rather, i will focus on those that can be made from the perspective of the case-law of the ecthr. first of all, and from this perspective, some activists for the rights of trans people have criticised the need to reiterate the desire to rectify one’s registered sex within a period of three months. they argue that this requirement expresses a paternalistic approach to trans people which tends not to take their self-determined identity seriously; hence the decision to give them more time “to think it over” or to “think better”. however, the requirement that the will to rectify one’s registered sex be expressed twice responds to the need to reconcile the right to bender self-determination with national interests such as legal security, the protection of which is also mandatory under the common standards developed in the case-law of the ecthr. second, article 41 of the draft, which establishes the reversibility, within the first six months, of the rectification of the registration mention relative to the sex of the persons,30 also lends itself to criticism. this is so because, although not mentioned in the text of the draft bill, the government (through the minister of justice, juan carlos campos) has declared that reversal will be possible only once31. it is not clear what this means. does this mean that, within the framework of an administrative procedure for sex reassignment, it will be possible to request the reversal of said specific procedure only once? or does it mean that, once a person has requested the rectification of their registered sex, they only have one chance within their lifetime to change their minds? if both scenarios are problematic, the second is even more so. it seems appropriate to ask whether a law that is based on the protection of the dignity of the person and their right to self-determination in matters of gender identity can then prohibit accessing the change of registered sex more than once. this circumstance appears as a true contradiction with the principles that allegedly inspired the legislative reform, principles based in turn on those developed by the ecthr. third, the draft has also been criticised for how it addresses the situation of intersex people. article 71.2, in particular, states that, when registering the birth of an intersex person, parents may request by mutual agreement that the field of the new-born’s sex be left blank 29. for a summary of the most recurring views, see léon 2021; see also, among many others, alías 2021; aránguez sánchez 2021; sen barcelona 2021; popelka sosa & brandariz portela 2021; or the links https:// cadenaser.com/ser/2021/02/08/sociedad/1612797657_874419.html [accessed: 30 november 2021] and https://www.eldiario.es/sociedad/feministas-manifiestan-ley-trans-irene-montero-dimision_1_8078362. html [accessed: 30 november 2021]. 30. article 41: “1. six months after the registration in the civil registry of the rectification of the legal indication of sex, the persons who have promoted said rectification may recover the indication of sex that appeared prior to said rectification in the civil registry. 2. to this end, they may once again request the rectification of said indication, obtaining judicial approval through voluntary jurisdiction as regulated in articles 26 sexies to 26 nonies of law 15/2015, of july 2, on voluntary jurisdiction”. 31. https://www.lamoncloa.gob.es/consejodeministros/paginas/enlacestranscripciones_rpcmin_2021/290621 campo.aspx" [accessed: 30 november 2021] and https://www.cope.es/actualidad/espana/noticias/reversiblecambio-genero-ley-trans-asi-explica-ministro-justicia-20210629_1372482 [accessed: 30 november 2021]. https://cadenaser.com/ser/2021/02/08/sociedad/1612797657_874419.html https://cadenaser.com/ser/2021/02/08/sociedad/1612797657_874419.html https://www.eldiario.es/sociedad/feministas-manifiestan-ley-trans-irene-montero-dimision_1_8078362.html https://www.eldiario.es/sociedad/feministas-manifiestan-ley-trans-irene-montero-dimision_1_8078362.html https://www.lamoncloa.gob.es/consejodeministros/paginas/enlacestranscripciones_rpcmin_2021/290621-campo.aspx https://www.lamoncloa.gob.es/consejodeministros/paginas/enlacestranscripciones_rpcmin_2021/290621-campo.aspx https://www.cope.es/actualidad/espana/noticias/reversible-cambio-genero-ley-trans-asi-explica-ministro-justicia-20210629_1372482 https://www.cope.es/actualidad/espana/noticias/reversible-cambio-genero-ley-trans-asi-explica-ministro-justicia-20210629_1372482 the standards of protection of trans people elaborated by the court of strasbourg and their incorporation in the recent spanish legislative proposal the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 138 in the civil registry, yet only for a maximum period of one year. after this period, reference to sex will be mandatory. in the event that the parents do not provide this information, no identification documents will be issued for the person in question. this is evidently too short a period for intersex people to exercise their right to sex-gender self-determination. it is even too short for parents to make an informed decision on the matter. this can only be taken as evidence of how the classic binary sex-gender ideology prevails in the spanish draft. last but not least, and in close connection with the above, the draft bill does not even mention the situation of non-binary people, of people whose sex-gender identity does not fall within any of the two binary poles, i.e. male and female. it does not allow a person to choose to leave blank the registration field related to their legal sex-gender (which other countries in europe and other parts of the world do32). this circumstance may be due to the fact that non-binary people have only recently started to be seen, that their claims have only recently started to be heard, or even that spanish society is not yet prepared to face this debate.33 whatever the reasons might be behind the final decision not to include a “third gender” as a permanent option in the draft, the result is the exclusion and discrimination of part of the people who identify as lgbtiq+. 4. final considerations i would like to conclude with two reflections. the first one concerns the caselaw of the ecthr. it concerns, in particular, the relationship between the existence of a certain “european consensus” within the council of europe, on the one hand, and member states’ margin of appreciation on a certain matter, on the other, as applied to the right to gender self-determination. we should wonder whether it is really appropriate that minimum standards of protection of trans persons’ gender identity is made dependent on a certain “european consensus”, that this may determine the margin of discretion enjoyed here the member states. when rights so closely linked to human dignity are at stake, it should be more appropriate to follow the indications of former ecthr judge martens, as expressed in 1990 in a case relating precisely to the protection of transsexuals: “[r]efusal to reclassify the sex of a post-operative transsexual seems inconsistent with the principles of a society which expresses concern for the privacy and dignity of its citizens”.34 this is not to deny that states must enjoy some margin of appreciation in certain matters. it is to stress that this cannot come to the detriment of the rights recognised in the echr and the development of common standards that ensure that the convention remains a living instrument, the interpretation of which reflects the evolution of society and responds to current conditions and needs35. eliminating the barriers that prevent trans people from fully exercising their rights and that undermine their dignity, free 32 an example of this is the german case; see müller & de benito 2013. 33 see, among others, rodríguez álvarez 2021; soto 2021. 34. cossey v. united kingdom, decision of the ecthr of 27 september 1990 (§ 2.7 in martens’ dissenting opinion); martens uses a quotation which he borrows from a critic of the corbett doctrine. 35. cossey v. united kingdom, decision of the ecthr of 27 september 1990 (§ 3.6.3 in martens’ dissenting opinion). silvia romboli the age of human rights journal, 18 (june 2022) pp. 125-142 issn: 2340-9592 doi: 10.17561/tahrj.v18.7060 139 development and physical integrity constitutes a current and urgent need. addressing it inevitably involves recognising these people's right to sex-gender self-determination. institutions such as the council of europe, in particular the ecthr, have a duty to give a significant push in the direction of the recognition of this right, along with their right to respect for private and family life and physical and moral integrity, through the elimination of medical, hormonal or surgical requirements for rectifying one’s registered sex. my second reflection concerns the draft bill on lgtbi rights currently under discussion in spain. parliamentary debates around it are still pending. while it is true that these might result in the introduction of better forms of protection for lgbtiq+ people, particularly those excluded in the original draft (foreign residents, intersex, non-binary), the reverse is unfortunately also possible: we could also witness a reduction in the rights recognised in the original draft, mostly as a response to the criticisms addressed against it. yet some of these criticisms point to "minor" problems, which should not come to trump the rights to people subject to constant discrimination and stigmatisation. to be sure, as the ecthr stated in 2002, on the occasion of the christine goodwin case, the right to sexual identity, protected by the right to private life of article 8 echr, has to be weighed against other interests, which must not be underestimated or forgotten, including public order and public interest and legal certainty in areas such as access to records, family law, social security, etc. yet, as the ecthr also stated, the risks posed to these interests “are far from insuperable”, and “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual 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(2016), ‘l'inerzia del legislatore e il caso oliari e altri c. italia’, ragion pratica, nº 46, pp. 261-268. received: december 15th 2021 accepted: april 3rd 2022 https://doi.org/10.18042/cepc/redc.118.02 https://doi.org/10.18042/cepc/redc.118.02 https://www.eldiario.es/desalambre/ley-trans-excluye-personas-refugiadas-e-inmigrantes-papeles-autodeterminacion-genero_1_8093883.html https://www.eldiario.es/desalambre/ley-trans-excluye-personas-refugiadas-e-inmigrantes-papeles-autodeterminacion-genero_1_8093883.html https://www.lavanguardia.com/vida/20210307/6265037/ley-trans-dos-analisis-contrapuestos.html https://www.lavanguardia.com/vida/20210307/6265037/ley-trans-dos-analisis-contrapuestos.html https://efeminista.com/ley-trans-migrantes-no-binarios https://efeminista.com/ley-trans-migrantes-no-binarios the standards of protection of trans people elaborated by the court of strasbourg and their inco abstract 1. introduction 2. the “common standards” developed by the ecthr on the right to rectify one’s legal sex 2.1. the first two decades of case-law on the subject 2.2. subsequent case-law 2.3. the most recent ruling to date (2021) and a first systematisation of the common rules develop 3. the incorporation of the common rules elaborated by the ecthr in the legislation of member stat 3.1. the spanish case: the current situation and the draft of the “trans law” 3.2. a look at the main critical aspects of the spanish "trans law" 4. final considerations bibliography conceptualizing human rights remarks on the "genus" and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 507 conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights antal szerletics1 abstract: the paper examines the conceptual issues of human rights using the framework of the genus proximum – differentia specifica definitional technique. my aim is not to come up with a definition for human rights, but rather to identify their genus that can, as a starting point, serve the purposes of constructing a more elaborate theory. as an unsurprising, but not at all obvious suggestion, it is argued that the closest conceptual category to human rights is the category of rights, understood in a wide but still hohfeldian sense of the word. subsequently, the paper examines five potential ‘distinguishing features’ that can, either separately or in combination with each other, set apart human rights from other rights. keywords: theory of rights, hohfeld, jural relations, claim-rights, moral rights, concept of human rights, universality, political conceptions of human rights, naturalist conceptions of human rights. summary: 1. introduction. 2. are human rights a subset of rights?. 3. what are the distinguishing features of human rights?. a. human rights are moral rights. b. human rights are held by every human being simply in virtue of being human. c. human rights are rights that human beings possess, at all times and in all places. d. human rights have a distinct political function. e. human rights are individually justified. 4. conclusion. 1. introduction my paper deals with the conceptual aspects of human rights and aims to outline a potential framework for their descriptive analysis. the method of investigation follows the classical method of defining a term with its genus proximum and differentia specifica (aristotle trans. smith 1997). accordingly, the first part of the paper explores whether it is possible to understand human rights as a subset of rights, while the second part examines the ‘distinguishing features’ that have the potential to set apart human rights from other rights. however, my paper does not seek to define human rights, since giving a single definition seems impossible here. apart from the difficulties of constructing definitions in general, for example the selection of the appropriate definitional technique (hurley 2006, pp. 86-100), this can be attributed to the fact that our definiendum, i.e. the notion of human rights is an extremely elusive concept that refers to a multitude of very different phenomena. a definition, but presumably even a full-fledged theory, can only grasp a few aspects of such diversity and understanding other aspects of it requires the adoption of different definitional techniques and theoretical approaches. moreover, as it will become apparent from the first part of the paper, our proposed genus, i.e. the category of rights 1 university of public service in budapest, hungary (szerletics.antal@uni-nke.hu). conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 508 is a similarly elusive concept, so before one can set out to identify the distinguishing features of human rights, the meaning of the genus needs to be established. thus, making sense of the concept of human rights requires more profound theorising compared to what single definitions could provide. nevertheless, the research questions of this paper are formulated according to the genus proximum and differentia specifica definitional technique mentioned above. the first research question, addressed in section 2, is whether it is possible to consider the category of rights as the genus of human rights. the second research question concerns the distinguishing features of human rights, i.e. the ‘hallmarks’ that set human rights apart from other rights. this question is addressed with an admittedly modest ambition. section 3 does not intend to propose new distinguishing features or determine the ‘definite’ characteristics of human rights. rather, it aims to briefly present the most prominent candidates for such features that can be identified in the literature and analyse their relations with each other. the conceptual aspects of rights and human rights are both extensively discussed in legal and moral philosophy. contributions that shaped the discourse on the concept of rights in the past thirty years include thomson (1990), jones (1994), wellman (1995), kramer, simmonds and steiner (1998), cruft (2004), wenar (2005), rainbolt (2006), kramer and steiner (2007), eleftheriadis (2008), stewart (2012), preda (2015), mcbride (2017), frydrych (2018). it would be no exaggeration to say that most of these sources are heavily influenced by wesley hohfeld’s theory of jural relations (hohfeld 1913) with respect to, e.g., their conceptual categories, terminology, or analytical methodology. section 2 draws mostly on the works of hohfeld (1913), wellman (1995 and 2011), cruft (2004 and 2012), wenar (2005), tasioulas (2012) and frydrych (2018) – it is through the review of these contributions that i make a case for a ‘capacious’ but still hohfeldian account of rights and argue to accommodate human rights within this conceptual framework. the concept of human rights is also a widely debated topic. state-of-the-art human rights theories are shaped by the debate between representatives of the political (rawls 1999; ignatieff 2001; beitz 2009; raz 2010) and moral conceptions (griffin 2008; tasioulas 2012) of human rights. the basic characterisation of human rights, including their distinguishing features, seem to depend on the specific conception one adopts in this respect. consequently, the modest ambitions of section 3 can also be attributed to the desire to remain neutral in the debate between the moral and political approaches to human rights. moreover, to go beyond mere description and to normatively evaluate different accounts of human rights, one needs a set – or rather a system – of ‘desiderata’ against which the adequacy of specific accounts can be measured. a simple list of criteria will hardly suffice; a full-fledged system also requires, for example, to develop a method to resolve the potential conflicts between different ‘desiderata’. this goes well beyond the scope of this paper. however, i mention a few criteria in the following paragraph because i will refer to these in section 2 to argue that human rights, under these criteria, are better conceptualised as rights than aspirations. perhaps the most important requirement for an ‘adequate’ account of human rights is fidelity to contemporary human rights culture (tasioualas 2012, p. 18; kahn 2021, p. 163). international legal instruments such as the universal declaration of human rights provide the basis for this culture; the human rights designated by an ‘appropriate’ concept will at least roughly correspond to the rights listed in international human rights antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 509 instruments. however, fidelity is a complex criterion that might require more than mere correspondence between the list of human rights in ‘theory’ and ‘practice’. for instance, it can also imply that an ‘adequate’ concept attributes roughly the same characteristics to human rights as contemporary human rights culture does. moreover, contemporary human rights culture itself is much less homogenous than one would expect. tadros (2015, p. 443) even claims that the philosophical discussion on the nature and the concept of human rights must be abandoned because there is no single dominant discourse of human rights against which the ‘adequacy’ of a theory can be measured. a second criterion is that a proper theory should account for the distinctive importance of human rights. not every normative consideration is important enough to be considered as a human right and even important normative considerations can be distinct from human rights (tasioulas 2012, p. 18). a third requirement is that the given account must have morally plausible implications (kahn 2021, p. 163). it seems clear that an account which (gravely) violates our moral intuitions will not be an adequate one. of course, it is possible to have more than three criteria to evaluate different accounts of human rights. tasioulas (2012, p. 19) and buchanan (2010, p. 691), for example, also discuss the ‘desideratum’ of non-parochialism, while kahn (2021, p. 163) refers to the requirements of internal consistency and utility. van duffel (2015, p. 65), based on buchanan (2010, p. 692), distinguishes between the requirements of consonance, reasonable fit, constraint, content, guidance and non-parochialism. 2. are human rights a subset of rights? to answer this question, one needs to give at least a rudimentary account of what rights are. when it comes to the concept of rights, most authors start from wesley hohfeld’s theory of jural relations. as hohfeld (1913, p. 30) explains, the term ‘rights’ tends to be used in four different senses: rights as claims, liberties (privileges), powers and immunities. these legal positions stand in correlative relations with other legal positions called duties, no-rights, liabilities, and disabilities, respectively.2 one divisive issue between theorists is whether all four legal positions ‘merit’ the name of rights or it is only claims that qualify as rights ‘in the strictest sense’ (hohfeld 1913, p. 30). hohfeld (1913, pp. 29, 32), for example, adopts the latter position; he argues that for the sake of clarity, rights shall always be understood as claims that entail correlative duties.3 others, such as carl wellman (2011, pp. 17-19), leif wenar (2005, pp. 224-235) or rowan cruft (2004, pp. 355-359) accept that liberties, powers and immunities can also qualify as rights;4 they argue that most rights seem to have a ‘molecular’ character (wenar 2005, p. 234), and they are best understood as complexes of hohfeldian legal positions.5 judith jarvis thomson (1990, p. 56) also argues that ‘many […] familiar rights that we take ourselves to have’ qualify as ‘cluster-rights’. 2 correlativity means that in a legal relation between two parties, the presence of a legal position in one party entails the presence of the correlative legal position in the other party. for instance, someone’s claim-right always entails someone else’s duty (ratnapala 2009, p. 301). 3 a similar approach is taken by kramer and steiner (2007, pp. 296-297). 4 cruft (2004, p. 358) argues that – in addition to claims, liberties (privileges), powers and immunities – liabilities can also qualify as rights in certain cases. 5 eleftheriadis (2008, p. 7.) and frydrych (2018, p. 8) provide different classifications of theories of rights based on which hohfeldian position or combination of positions qualify as rights. conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 510 for example, the right to property seems to be constituted by at least four hohfeldian positions: (1) the liberty of the owner to do or not do with his property what he wants; (2) the claim-right of the owner that correlates with the duty of others not to interfere with the enjoyment of the owner’s property; (3) the immunity of the owner that his property is not burdened by new legal relations without his consent; (4) the power of the owner to sell his property and, as a consequence, change the system of corresponding claim-rights and liberties (rosdorff 1974, pp. 82-83; thomson 1990, p. 57).6 in addition to the requirement that rights are composed of hohfeldian positions, theories of rights usually contain an additional requirement that refers to the ‘purpose’ or ‘function’ that these positions serve (frydrych 2018, pp. 2-7). the two major candidates for the function of rights are specified by the interest and the will theories.7 roughly, interest theories hold that the function of rights is to further the well-being or the interests of the right-holder, while will theories find the purpose of rights in protecting the free choice of the right-holder. although these theories are considered to be mutually exclusive (frydrych 2018, p. 3), endorsing one of these functions seems necessary because hohfeldian positions that do not serve the interests or protect the free choice of the rightholders do not seem to qualify as rights in the ‘ordinary’ sense of the word.8 the fact that my neighbour has no power to exempt me from my duty to pay my income tax means that i am immune from his intervention to alter my legal position in this respect. however, we would not call this immunity a right because it does not protect me from any adverse change, and consequently it does not directly serve my interests or protect my freedom (hart 1982, p. 191; wenar 2005, p. 245; cruft 2006, pp. 177-178). the long-standing debate between the interest and will theories ended in a stalemate (wenar 2005, p. 223 and p. 238). luckily, for the purposes of the present paper, it does not seem necessary to take sides in this debate. for the conceptual analysis of human rights, it seems sufficient to accept that a hohfeldian position qualifies as a right if it serves either the interests or protects the free choice of its holder (not excluding the possibility that certain rights might do both). this leads to a ‘capacious’ understanding of rights that is probably unacceptable to ‘dedicated’ interest and will theorists, because the two theories are considered to be mutually exclusive and there is a common presumption that rights need to serve a singular, ultimate purpose (frydrych 2018, p. 2). at this point, it is possible to pose two questions with respect to the concept of human rights. (1) the first question is whether all human rights can be understood as one of the previously mentioned hohfeldian positions (i.e. claims, liberties, powers or immunities) or as complexes of these positions. (2) the second question is whether all 6 a similar account of the right to property is given by thomson (1990, p. 57). 7 according to the ‘several functions’ theory of wenar, rights do not have a ‘single function’ or ‘ultimate purpose’ as presupposed by interest and will theories. wenar (2005, pp. 246-251) lists six functions that rights can have (exemption, discretion, authorisation, protection, provision, performance). for a critique of his theory, see kramer and steiner (2007, pp. 281-299). 8 wenar (2005, p. 244) also points out that a theory which holds that any hohfeldian incident or complex of incidents is a right seems over-inclusive. antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 511 human rights serve the interest and/or protect the will of the right-holder, so they qualify as rights from a ‘functional’ perspective as well (not excluding the possibility that they can have other functions as well). depending on how one answers these questions, there are at least four ways to conceptualize human rights. (i). if the answers to both questions are ‘yes’, then all human rights qualify as rights according to our previously described, ‘capacious’ account of rights. (i’). a ‘stronger’ (i.e. less inclusive) version of this position is that all human rights are claim-rights and therefore they count as rights from our ‘capacious’ and from hohfeld’s original perspective as well.9 in this case, answers to both aforementioned questions are ‘yes’ but this approach is ‘stricter’ with respect to question (1) as it conceptualizes all human rights as claim-rights. there could be two reasons for adopting (i’). (a.) first, it is possible that someone is more inclined to adopt the original hohfeldian view that rights are always claim-rights and therefore conclude that human rights need to be claim-rights as well. for the purposes of this paper, a wider account of rights was adopted, but this does not necessarily mean that the ‘narrower’ hohfeldian view about rights is incorrect. however, the problem with this approach is that it operates under the assumption that human rights constitute a subset of rights, the very idea that we aim to examine here. (b.) second, it can be argued that it is a special feature of human rights that they are always claim-rights. this approach seems to be wrong because human rights often have complex structures and can be associated with other hohfeldian incidents as well (wellman 2011, pp. 22-23). it is possible to argue that human rights are ‘paradigmatically’ claim-rights (tasioulas 2012, p. 27), but to claim that they are always claim-rights seems implausible. wellman (2011, p. 23) gives the example of the ‘moral human right to liberty [which] is, as its name suggests, a liberty-right’. to be sure, wellman does not deny the possibility that claims can (and very often do) form part of human rights complexes but if their ‘defining core’ is not a claim-right (such as a liberty in the previous example), then they cannot be thought of as claim-rights. (ii). if the answers to either or both questions are ‘no’, then some human rights will not qualify as rights according to our previously described, ‘capacious’ account of rights. (ii’). a ‘stronger’ (i.e. less inclusive) version of this position would be that no human right qualifies as right.10 this could be for two reasons. (a.) it can be argued that human rights are not hohfeldian positions. in this case, human rights can be understood, for example, as expressions of moral values or human interests that do not constitute correlative duties, no-rights, liabilities or disabilities necessary for the existence of claims, liberties, 9 the inverted comma indicates that position (i’) is a modified version of position (i). theoretically, there are other less inclusive versions of position (i). it is possible, for example, to claim that human rights are always powers or that they are always immunities. these positions can be relatively easily refuted by showing that there is at least one human right that is a claim-right. 10 the inverted comma indicates that position (ii’) is a modified version of position (ii). conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 512 powers and immunities, respectively. this position is hardly tenable because many human rights seem to be ‘inseparable’ from their hohfeldian correlatives. this inseparability is demonstrated by the fact that people often refer to these correlatives to express the content of these human rights. for instance, the right not to be tortured is best regarded as a claimright that imposes a correlative duty on others to refrain from torture (wellman 2011, p. 23). this right is usually expressed by its correlative duty; article 3 of the european convention on human rights (echr), for example, states that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’, i.e. everyone has a duty to refrain from torturing others. a theory that excludes rights with correlative duties, no-rights, liabilities or disabilities (e.g. the right not to be tortured) from the list of human rights is at odds with the requirement of fidelity to contemporary human rights culture (tasioulas 2012, p. 18). (b.) it can also be argued that human rights are not rights because they do not serve the interests or protect the choice of its holder. this position seems very much implausible because even if there are human rights that serve exclusively, for example, collective interests,11 it is hard to imagine that all human rights do that – it is pretty obvious that the right not to be tortured, for instance, serves primarily the interests of the right-holder. while positions (i’) and (ii’) seem untenable, position (ii) cannot be so easily dismissed. surprisingly many theorists endorse the position that some human rights do not qualify as rights (cruft 2012, p. 136). socioeconomic human rights are a classic example, as they are often conceptualized as ‘goals’ or ‘aspirations’, not only in theory, but in international legal practice as well. article 2 of the international covenant on economic, social and cultural rights (icescr), for example, requires that each state party takes steps, to the maximum of its available resources, towards the ‘progressive realization’ of the rights recognized in the covenant. while conferring rights on individuals, the icescr does not impose counterpart duties on states, as opposed to the international covenant on civil and political rights (iccpr) which conceives civil and political rights as subjects of ‘immediate obligation’ (wiles 2006, p. 38). of course, the fact that there are international human rights instruments which portray certain human rights as goals does not settle the theoretical dispute about the hohfeldian character of human rights. after all, it can be argued that socioeconomic human rights also impose counterpart duties on states, i.e. the relatively ‘weak’ and ‘indeterminate’ duties to progressively realize socioeconomic rights, contingent on the available resources of each state.12 it is also possible to argue that international human rights instruments, such as the icescr, mistakenly portray socioeconomic human rights as goals – ‘in reality’, these rights impose duties on states the same way civil and political rights do (cruft 2012, p. 138).13 11 one such right could be the right to national self-determination, although tasioulas (2012, p. 29, fn. 11) claims that it does not count as ‘human rights proper’, exactly because it lacks the individualistic grounding characteristic to human rights. 12 maybe this is the reason why article 12 of the icescr guarantees the ‘right to the enjoyment of the highest attainable standard of physical and mental health’ instead of the ‘right to health’. as kahn (2021, p. 170) points out, such an approach is problematic because it creates a two-tier system of human rights. it implies that people living in wealthy countries have the human right to health, while people in poorer countries have a ‘weaker’ right, i.e. the right to governmental efforts to improve health. 13 however, the requirement of fidelity to contemporary human rights culture might be compromised in this case. antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 513 similarly to the previously adopted reasoning with respect to position (ii’), i examine separately the arguments that some human rights are not rights because (a.) they are not hohfeldian positions or complexes of hohfeldian positions, and/or because (b.) they do not serve the interests or protect the choice of the right-holder. ad (a). the temptation to deny that human rights are rights can result from the belief that rights understood as hohfeldian incidents have an ‘overly intimate’ connection with duties.14 duties correlative to certain human rights, especially socioeconomic rights, might place too heavy a burden on a lot of states. although it is logically possible to have rights that entail unfulfillable duties, it seems ‘farcical’ to speak about human rights with correlative duties that ‘vastly exceed what their bearers can do’ (cruft 2012, p. 139). after all, what is the point of having human rights that have no realistic chance to be fulfilled in the near or even in the distant future? conceptualizing human rights as such is not only preposterous but can lead people to question the seriousness of the whole ‘human rights project’. one way to go around this problem is to extend the list of addressees of human rights and claim that correlative duties fall not only on states but on other individuals and international organizations as well (cruft 2012, p. 139; kahn 2021, p. 166). in such manner, positive obligations imposed by socioeconomic rights are more realistically fulfilled and it will be less ‘farcical’ to speak about socioeconomic rights with correlative duties, even if one of the duty-bearers is an impoverished state. the other way to tackle this problem is simply to abandon the hohfeldian character of certain human rights and claim that (1) such ‘rights’ entail no duties at all for governments that cannot afford the provision of goods associated with these rights, or (2) such ‘rights’ impose duties on impoverished states, but the content of the duties is different from the content of the corresponding ‘rights’ (cruft 2012, p. 142). position (2) was briefly mentioned previously with respect to socioeconomic rights and the icescr – the difference of content means, for example, that the human right to health entails only the relatively weak duty to progressively realize minimally acceptable standards of healthcare. to be sure, positions (1) and (2) both imply leaving hohfeld’s conceptual framework, because his theory presupposes a strict correlation between rights and duties and cannot account for any differences in their content – for hohfeld, the duty is the content of a claim-right. this, in turn, implies the adoption of position (ii), i.e. the position that certain human rights are not rights because rights were previously defined as hohfeldian positions or complexes of these. position (1) reduces certain human rights to ‘mere’ human goods that governments (and perhaps other actors such as international organizations and individuals) have good reasons to pursue but have no duty to respect them ‘categorically’ or provide them ‘completely’. position (2) is more subtle because it does not reject the idea that rights entail duties; it only rejects the idea that rights always entail the same set of duties. perhaps this is the reason why its representatives – contrary to the conclusion of the previous paragraph – do 14 this intimate relation is obvious in the case of claim-rights that necessarily entail correlative duties. however, liberties, powers and immunities are also related to duties in very specific ways. liberties entail the absence of certain duties, while powers and immunities imply the inability to alter specific directed duties (cruft 2012, pp. 145, 149-150). conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 514 not think of position (2) ‘as involving a rejection of the thesis that human rights are genuine rights’ (cruft 2012, pp. 142-143). they consider human rights as rights in a nonhohfeldian sense of the word, endorsing what raz calls the dynamic character of rights, i.e. that the duties corresponding to a specific right are not fixed but can change with the change of circumstances, e.g. depending on the financial potential of governments (cruft 2012, pp. 137, 145). leaving the hohfeldian framework has both advantages and disadvantages for a theory of human rights. i think it can be plausibly argued that the disadvantages outweigh the potential advantages, and it is worth sticking to the idea that all human rights can be conceptualized as hohfeldian positions or complexes of such positions. one major disadvantage of leaving hohfeld’s framework is that it makes the content of human rights ‘worryingly indeterminate’ (cruft 2012, p. 146), meaning that there are either no correlative duties to a specific human right or that the correlative duties change with the change of circumstances. this is not exactly what most people expect from human rights. although it is unclear whether the requirement of universality extends to the content of human rights and the very idea of universality is increasingly questioned in contemporary human rights discourse (tasioulas 2012, pp. 31-36; ignatieff 2001, pp. 56-58), it can be argued that the indeterminate content of human rights is at odds with their alleged universality. ad (b.) theoretically speaking, it is also possible to endorse position (ii) by arguing that some human rights are not rights because they do not serve the interest or protect the freedom of the individual right-holder. there are no obvious examples here: while it is possible that human rights serve collective interests, they always seem to do ‘something’ for the right-holder as well.15 political conceptions of human rights shift emphasis from what human rights do for the individual to the political function they have in the international arena. however, representatives of the political approach do not necessarily deny that human rights are rights. many of them accept that human rights are moral rights that serve the interests of the right-holders but at the same time have a distinct political function as well (raz 2010, p. 323). only representatives of the sui generis version of the political approach reject the idea that human rights are rights (tasioulas 2012, pp. 44-45), although it is unclear if their opinion is based on the rejection of the hohfeldian character or the individualistic function of human rights. i will discuss political conceptions of human rights in the following section in more details. before i go any further, i would like to briefly turn to the potential disadvantages of endorsing position (ii) and summarize the concerns associated with conceptualizing human rights as fundamental human interests. i have already mentioned that a nonhohfeldian approach to human rights carries the risk of making the content of human rights indeterminate. an additional concern about endorsing position (ii) is that it might lead to the proliferation of human rights which, arguably, goes together with their devaluation. in theory, position (ii) allows that any kind of important human interest becomes a human 15 except for perhaps the right to national self-determination mentioned earlier. antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 515 right; this is problematic because it obscures the distinctiveness of human rights from the many other important social goals that we have good reasons to achieve (tasioulas 2012, p. 25). finally, conceptualizing human rights as fundamental interests fails to account for the moral character of human rights. more specifically, it fails to explain why it is morally wrong to violate human rights (tasioulas 2012, pp. 23-24). fundamental interests can be violated by any action or omission that does not further these interests, even if such an action or omission is not morally wrong. not giving my spare kidney to someone else does not seem to be morally wrong, even if the other person is sick and needs a kidney transplant; however, the person’s right to health understood as a fundamental interest will still be violated by such an omission. thus, we might end up with a theory which implies that the violation of a human right is not necessarily morally wrong which seems to be at odds with the ‘desideratum’ of moral plausibility. all in all, it seems to me that human rights are better perceived as rights in a broad hohfeldian sense, i.e. it is better to adopt position (i) over position (ii). this means that the requirement of fidelity is partially compromised because position (i) probably excludes certain socioeconomic rights from the list of human rights. however, adopting position (ii) seems even more problematic because it is at odds with the requirements of moral plausibility and distinctive importance. 3. what are the distinguishing features of human rights? the previous section examined the question whether human rights qualify as rights according to a capacious, yet hohfeldian understanding of rights. if it is accepted that all human rights qualify as rights in this sense, the conceptual analysis can proceed to the distinguishing feature(s) capable of setting human rights apart from ‘ordinary’ rights. this section considers five candidates for a ‘hallmark’ of human rights, but my list is by no means an exhaustive one. moreover, it is also possible that more features combined constitute the differentia specifica of human rights. a. human rights are moral rights human rights are often perceived as moral rights (wellman 2011, pp. 19-21; tasioulas 2012, pp. 26-27; cruft et al. 2015, pp. 4-5). it is a common expectation of human rights that they incorporate extra-legal ethical standards and can be used to critically evaluate conventional legal and societal norms (cruft et al. 2015, p. 5). it is possible that human rights are also legal rights, but as moral rights they have a pre-legal character and exist independently of state regulations. a major advantage of applying hohfeld’s theory of jural relations to the question of human rights is that it applies equally to moral relations (kramer 1998, p. 8; wellman 2011, p. 19); moral rights have the same structure as legal rights and legal recognition is not necessary to conceptualize human rights as hohfeldian positions. in fact, the whole analysis of the previous section was meant to apply to human rights primarily as moral rights. it seems quite obvious that the moral character of human rights cannot be their only distinguishing feature. (1) firstly, if one adopts a political approach to human rights, the idea conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 516 that human rights are ‘pre-political’ moral rights becomes strongly questionable.16 even if some representatives of the political approach, such as raz (2010, p. 335), accept that human rights are a sub-set of moral rights, they do not consider this as a specific hallmark of human rights. (2) secondly, it can be plausibly argued that not all moral rights qualify as human rights. for example, the right of parents to discipline their children or the right of the promisee to demand the performance of the promised act are moral but not human rights (wellman 2011, pp. 19-21). thus, the category of moral rights is better perceived as a more precise genus of human rights rather than a distinguishing feature that sets apart human rights from other rights. therefore, the question remains what distinguishes human rights from other moral rights. a potential answer is outlined in the next section. b. human rights are held by every human being simply in virtue of being human a moral right is usually grounded in the special status of its holder established by certain morally relevant reasons (wellman 2011, p. 21). the moral right of parents to discipline their children rests, for example, on the special status of right-holders as parents. by contrast, human rights are said to be unconditional in the sense that the ‘possession of a human right cannot be conditional on some conduct or achievement of the right-holder, […], or their membership of a particular community or group’ (tasioulas 2012, p. 37). it is some aspect of human nature, such as human needs (miller 2012) or agency (gewirth 1984; griffin 2010) that gives rise to human rights. these aspects are considered to be fundamental to human existence and therefore universally valuable for everyone, either intrinsically or instrumentally, i.e. for the realization of other valuable aspects of humanity (raz 2010, p. 323). the so-called ‘naturalist’, ‘moral’ or ‘orthodox’ theories of human rights justify human rights as protectors of these valuable aspects of human nature (cruft et al. 2015, p. 5; maliks and karlsson schaffer 2017, p. 3). the unconditionality implied by naturalist approaches could serve as a distinguishing feature of human rights, especially if one agrees with tasioulas (2012, p. 37) that the counterpart duties of unconditional human rights, contra hohfeld, can be conditional on a special relationship, status, action or achievement of the right-holder. however, if this position is rejected, it seems hard to make sense of the unconditional character of human rights in contemporary human rights discourse, where the existence of many newly emerging human rights seems to be conditional on the fact that certain social conditions are in place – consider, for example, the right to free education or due process rights (maliks and karlsson schaffer 2017, p. 4). unconditionality seems to be at odds with the requirement of fidelity to contemporary human rights culture. naturalist conceptions of human rights face other problems besides the issue of unconditionality. some doubt, for example, that a single substantive value is broad enough to provide a basis for the whole spectrum of human rights (cruft 2012, p. 130). of course, it is possible to take a pluralist approach and argue that there are many different fundamental values capable of grounding human rights (tasioulas 2015). however, 16 tasioulas (2012, pp. 49, 54) identifies the theory of charles beitz as a sui generis political theory that does not understand human rights as a sub-set of universal moral rights. antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 517 neither the monist, nor the pluralist approach addresses the concern of raz (2010, p. 323) that naturalist conceptions misconceive the relation between values and rights: the fact that certain things are valuable does not necessarily mean that people have a right to them. of course, it is possible to reply that the values behind human rights are so important and fundamental to human existence that they deserve to be protected qua rights. c. human rights are rights that human beings possess, at all times and in all places ordinary moral rights can change as the moral norms of a society change, while human rights are said to be universally applicable at all times and in all places. thus, universality can also be a hallmark of human rights distinguishing it from other rights. however, universality, just as unconditionality, seems to be a ‘by-product’ of naturalist approaches to human rights. consequently, a theory that posits the universality of human rights will probably be a naturalist theory with all the potential weaknesses discussed in the previous paragraph. moreover, universality, similarly to unconditionality, does not seem to be in line with the requirement of fidelity to contemporary human rights culture. it takes a lot of imagination to accept that a caveman in the stone age had the exact same human rights as a modern person has today, including, for example, the right to a fair trial or the right to political participation. this leads some authors to abandon the trans-historical interpretation of universality and limit universality to the period of modernity (tasioulas 2012, p. 35). others try to ‘save’ the idea of universality by distinguishing between the possession and the applicability of human rights and argue that although certain rights would not have been applicable in the stone age, people still possessed them the same way as they do now (wellman 2011, p. 28). the success of such efforts is questionable, especially that the idea of universality is challenged on other fronts as well. for instance, the critique inspired by cultural relativism emphasizes that universalism imposes western liberal values on nonwestern societies in an unacceptable way (tasioulas 2012, p. 18; ignatieff 2001, p. 58). d. human rights have a distinct political function in recent years, several authors (rawls 1999; ignatieff 2001; beitz 2009; raz 2010) have argued that human rights primarily have a political character, and that their conceptualization is incomplete without acknowledging their distinct political function. they assert that the hallmark of human rights is the political function they have in international relations. raz (2010, p. 328), for example, understands human rights as ‘rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a […] reason for taking action against the violator in the international arena.’ although he does not deny that human rights are moral rights, he argues that the watershed between human rights and other moral rights is not that human rights are grounded in ‘fundamental moral concerns’ or ‘aspects of human nature fundamental to human existence’ (zanghellini 2017, p. 30). rather, the distinguishing feature is the fact that the violation of human rights can trigger international intervention. a general objection against political approaches is that they presuppose the idea of some kind of political institution (i.e. states or state-like entities) when conceptualizing human rights (tasioulas 2012, p. 47). this seems to be at odds with the expectation that conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 518 human rights exist independently of states and legal systems. a more profound question, informed by the requirement of fidelity, is whether the list of human rights of political approaches resembles, at least vaguely, the list of international human rights documents. generally speaking, political conceptions seem to produce a fairly parsimonius list of human rights (tasioulas 2012, p. 44). this might violate the requirement of fidelity, as tasioulas (2012, pp. 50-51) points out in relation to the theory of rawls. on the other hand, political approaches are less committed to the idea of universality and can more easily accommodate rights that do not seem to be timelessly valid. e. human rights are individually justified rowan cruft (2012, pp. 129-136) argues, somewhat unconventionally, that the real difference between rights and human rights is that human rights are always individually justified. individual justification is normally considered to be a hallmark of rights. it means that the existence of a right is justified by what it does for its holder, i.e. it either serves the interest or protects the autonomy of the individual. this is how rights were conceptualized in the beginning of section 2 of this paper; it was established that it is a necessary function of rights to serve the interest or protect the will of the right-holder. although justificatory and conceptual issues get intertwined at this point,17 cruft seems to argue that it is a specific conceptual feature of human rights that they are individually justified. rights, on the other hand, are often justified with reference to other things, such as the common good. trivial property rights, while possible that they serve the interest of the right-holder to a certain extent, ‘are justified because the property system of which they are a part serves the common good’ (cruft 2012, p. 131). it is fairly obvious that cruft’s approach is over-inclusive. there are rights which are usually not classified as human rights, but their existence is justified solely with reference to the important things they do for the right-holder (cruft 2012, p. 134). to remedy this over-inclusiveness, cruft (2012, p. 136) accepts that individual justification is just one distinguishing feature of human rights; supplementary defining features are necessary to ‘narrow down’ the category of human rights to fit the requirement of fidelity to contemporary human rights culture. 4. conclusion my paper examined the conceptual issues of human rights in the framework of a specific definitional technique, i.e. the definition by genus and difference. i deliberately did not try to give a definition or construct a theory of human rights – the former seems impossible, while the latter is well beyond the scope of this work. the first part of the paper addressed the question whether all human rights qualify as rights. the position that some human rights are not rights, or at least not hohfeldian rights, is not implausible, especially in the light of contemporary human rights culture that increasingly moves away from the presumption that human rights (particularly socioeconomic rights) entail fixed duties. the lack of counterpart duties, however, makes the content of such rights ‘worryingly indeterminate’ (cruft 2012, 146). moreover, allowing human interests to become human 17 for an illuminating discussion of this issue, see preda (2015). antal szerletics the age of human rights journal, 18 (june 2022) pp. 507-521 issn: 2340-9592 doi: 10.17561/tahrj.v18.6874 519 rights, while chimes with the tendency of proliferation, seems problematic because it fails to account for the distinctive importance of human rights over other important social goals. thus, i concluded that human rights are better perceived as a subset of rights, and the notion of rights, if properly conceptualized, can serve as a genus for human rights. the second part of the paper examined some of the potential distinguishing features that can set apart human rights from other rights. instead of jumping to hasty conclusions about what constitutes the ‘real’ hallmark of human rights, i propose to briefly summarize the possible relations between the five distinguishing features discussed earlier. it seems to me that human rights do not have a single distinguishing feature but will be set apart from other rights by a combination of different features. however, the following account of potential combinations is merely a tentative one. political conceptions of human rights endorse some version of hallmark d. which seems to be at odds with hallmarks b. and c., i.e. that human rights are held unconditionally (‘simply in virtue of being human’) and universally (‘at all times and in all places’). on the other hand, hallmark d. can be combined with hallmark a., i.e. that human rights are moral rights, depending on whether the specific political conception is a sub-set or a sui generis theory (tasioulas 2012, pp. 44-45). hallmarks b. and c. can be combined with each other and with hallmark a. as well. in fact, classical naturalist conceptions of human rights seem to endorse hallmarks a., b. and c. at the same time when asserting that human rights are moral rights that all human beings possess simply in virtue of being human, at all times and in all places. references aristotle, topics. books i and viii with excerpts from related texts. trans. smith, r. 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(eds.) philosophical foundations of human rights. oxford: oxford university press, pp. 1-41. https:// doi.org/10.1093/acprof:oso/9780199688623.003.0001 eleftheriadis, p. 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(2021) ‘beyond claim-rights: social structure, collectivization, and human rights’, journal of social philosophy, 52 (2), pp. 162-184. https://doi.org/10.1111/ josp.12362 kramer, m. h. (1998) ‘rights without trimmings’, in kramer, m. h., simmonds, n. e. and steiner, h. a debate over rights. oxford: oxford university press, pp. 7-111. kramer, m. h., simmonds, n. e. and steiner, h. (1998) a debate over rights. oxford: oxford university press. kramer, m. h. and steiner, h. (2007) ‘theories of rights: is there a third way?’, oxford journal of legal studies, 27 (2), pp. 281–310. https://doi.org/10.1093/ojls/gqi039 maliks, r. and karlsson schaffer, j. (2017) ‘expanding the debate on moral and political approaches to the philosophy of human rights’, in maliks, r. and karlsson schaffer, j. (eds.) moral and political conceptions of human rights. implications for theory and practice. cambridge: cambridge university press, pp. 1-12. https:// doi.org/10.1017/9781316650134 mcbride, m. (ed.) 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(1999) the law of peoples with ‘the idea of public reason revisited’. cambridge, massachusetts: harvard university press. raz, j. (2010) ‘human rights without foundations’, in besson, s. and tasioulas, j. (eds.) the philosophy of international law. oxford: oxford university press, pp. 321-337. rosdorff, l.w. (1974) the framework of legal evolution. boston: springer us. https://doi. org/10.1007/978-1-4899-6028-3 stewart, h. (2012) ‘the definition of a right’, jurisprudence, 3 (2), pp. 319-339. https:// doi.org/10.5235/jurisprudence.3.2.319 tadros, v. (2015) ‘rights and security for human rights sceptics’, in cruft, r., liao m.s. and renzo, m. (eds.) philosophical foundations of human rights. oxford: oxford university press, pp. 442-458. https://doi.org/10.1093/ acprof:oso/9780199688623.003.0025 tasioulas, j. (2012) ‘on the nature of human rights’, in ernst, g. and heilinger, j. (eds.) the philosophy of human rights. contemporary controversies. berlin: de gruyter, pp. 17-59. tasioulas, j. (2015) ‘on the foundations of human rights’, in cruft, r., liao m.s. and renzo, m. (eds.) philosophical foundations of human rights. oxford: oxford university press, pp. 45-70. https://doi.org/10.1093/acprof:oso/9780199688623.003.0002 thomson, j. j. (1990) the realm of rights. cambridge, massachusetts: harvard university press. van duffel, s. (2015) ‘human rights’, in fiala, a. (ed.) the bloomsbury companion to political philosophy. london: bloomsbury, pp. 61-73. wellman, c. (1995) real rights. oxford: oxford university press. wellman, c. (2011) the moral dimensions of human rights. oxford: oxford university press. https://doi.org/10.1093/acprof:oso/9780199744787.001.0001 wenar, l. (2005) ‘the nature of rights’, philosophy &public affairs, 33 (3), pp. 223-252. https://doi.org/10.1111/j.1088-4963.2005.00032.x wiles, e. (2006) ‘aspirational principles or enforceable rights? the future for socioeconomic rights in national law’, american university international law review, 22 (1), pp. 35-64. zanghellini, a. (2017) ‘raz on rights: human rights, fundamental rights, and balancing’, ratio juris, 30 (1), pp. 25-40. https://doi.org/10.1111/raju.12156 received: january 1st 2022 accepted: march 10th 2022 https://doi.org/10.1007/978-1-4899-6028-3 https://doi.org/10.1007/978-1-4899-6028-3 https://doi.org/10.5235/jurisprudence.3.2.319 https://doi.org/10.5235/jurisprudence.3.2.319 https://doi.org/10.1093/acprof:oso/9780199688623.003.0025 https://doi.org/10.1093/acprof:oso/9780199688623.003.0025 https://doi.org/10.1093/acprof:oso/9780199688623.003.0002 https://doi.org/10.1093/acprof:oso/9780199744787.001.0001 https://doi.org/10.1111/j.1088-4963.2005.00032.x https://doi.org/10.1111/raju.12156 conceptualizing human rights remarks on the ‘genus’ and distinguishing features of human rights abstract 1. introduction 2. are human rights a subset of rights? 3. what are the distinguishing features of human rights? a. human rights are moral rights b. human rights are held by every human being simply in virtue of being human c. human rights are rights that human beings possess, at all times and in all places d. human rights have a distinct political function e. human rights are individually justified 4. conclusion references sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 1 sexual orientation discrimination and autonomy of religious groups in the inter-american case law fernando arlettaz1 abstract: religious freedom encompasses the right of religious groups to define the tenets of their faith and to organise themselves according to these tenets, without arbitrary state interference. however, the limits of religious groups’ autonomy are controversial, especially in those cases where the exercise of religious autonomy seems to be at odds with non-discrimination standards. the inter-american court of human rights has adopted many decisions on sexual orientation discrimination, but its case law on religious freedom is much scarcer. the two issues converged in the recent decision pavez pavez v chile, in which the court set the limits of the autonomy of religious groups when confronted with non-discrimination standards. keywords: discrimination, sexual orientation, inter-american court of human rights, autonomy of religious groups, religious freedom. summary: 1. introduction. 2. the pavez pavez case. 3. sexual orientation discrimination. 3.1. the prohibition of discrimination under international treaties. 3.2. non-discrimination on sexual orientation grounds. 4. autonomy of religious organisations. 5. the court’s judgement: which was the right standard to be applied? 5.1. discrimination by public authorities and discrimination by private entities. 5.2. strict and flexible non-discrimination standards. 6. some conclusions: the autonomy of religious groups and the prohibition of discrimination. 1. introduction inter-american case law on religious freedom is scarce. apart from some decisions and reports of the inter-american commission on human rights, until recently only one judgement of the inter-american court of human rights had directly dealt with a religious issue (and even in this case the conflict had been decided more on the basis of freedom of expression than on the basis of freedom of religion).2 on the contrary, the inter-american court has adopted many decisions concerning discrimination on sexual orientation grounds.3 in 2022, the two issues merged in the pavez pavez v chile case. the case concerned a modification in the tasks and responsibilities of a public school teacher of catholic religion who had lost the support of the catholic bishop because of her sexual orientation. the court declared that the decision of the chilean state, based on the opinion of the catholic hierarchy, was discriminatory and thus breached inter-american standards. the 1 cud / universidad de zaragoza (arlettaz@unizar.es). 2 inter-american court of human rights (iacthr), ‘the last temptation of christ’ (olmedo bustos et al.) v chile, series c no. 73, 5 february 2001. 3 see the case law mentioned in section 3.2. http://10.17561/tahrj.v20.7695 mailto:arlettaz@unizar.es sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 2 case stirs up discussion on the relation between the principle of equality and the autonomy of religious groups to select who can speak in their name. it also raises the question of the limits between the public and the private spheres and the scope of anti-discrimination provisions. the hypothesis underlying this work is that in the pavez pavez case the interamerican court reached a good decision for bad reasons. as it will be explained, the court rightly declared that the modification in the teacher’s tasks and responsibilities was discriminatory (and, consequently, constituted a violation of the convention). however, the true reason of this illegitimacy was not, as the court suggested, that religious groups cannot establish any distinction on the basis of sexual orientation. changes in a labour relationship like those analysed in the pavez pavez case are illegitimate because they are the consequence of a decision by a public authority (not by a private religious group) and public authorities, unlike private individuals and groups, are bound by a strong version of the non-discrimination principle. to examine these issues, the main features of the pavez pavez case will be introduced (section 2). then, international standards on discrimination on sexual orientation grounds (section 3) and the autonomy of religious groups (section 4) will be outlined. finally, the solution given in the pavez pavez case will be analysed under these standards (section 5), to obtain some general conclusions (section 6). 2. the pavez pavez case the pavez pavez case concerned a chilean woman who worked as a catholic religion teacher in a public school.4 according to chilean law, public education includes religion courses, imparted as part of the official weekly timetable. religion courses are offered in public establishments on an optional basis. religion teachers are hired by the state. to be hired and to maintain their jobs, they must be in possession of a certificate of suitability granted by religious authorities, which is valid as long as it is not revoked. sandra pavez pavez had been working as a catholic religion teacher since 1985 and in 1991 she had become a permanent teacher. although she did not have the status of a civil servant (as her contract was ruled by private law), her salary and the social security fees associated with her contract were paid by the state. in 2007, the catholic vicar revoked ms pavez’s certificate of suitability. the reason given was that she was ‘living publicly as a lesbian, in open contradiction with the contents and teachings of the catholic doctrine,’ and thus she was ‘not qualified to transmit these teachings to the students.’ as a consequence of the withdrawal of the certificate of suitability, ms pavez was prevented from teaching catholic religion classes in any national educational institution and, in particular, in the school where she had been working for more than twenty years. 4 iacthr, pavez pavez v chile, series c no. 449, 4 february 2022. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 3 the school administration then offered her a position as acting inspector general. this meant that her employment contract was not terminated, the benefits that she enjoyed as a teacher were maintained, and she even began to receive an additional salary allowance for her new managerial duties. ms pavez, the homosexual integration and liberation movement, and the chilean teachers’ association filed an appeal for protection before chilean courts, which was dismissed. they complained before the inter-american commission on human rights, which considered that the decision to prohibit ms pavez from teaching catholic religion was contrary to inter-american human rights standards and sued the chilean state before the inter-american court. the court found unanimously that the act that disqualified ms pavez for the functions of a religion teacher constituted a violation of the principle of equality and non-discrimination (articles 1.1 and 24 of the american convention). this is the core of the court’s decision and will be analysed in detail below. besides, the inter-american court found unanimously that the chilean state was responsible for the violation of the rights to personal freedom and to privacy (articles 11.2 and 7.1 of the american convention). the court recalled that these rights comprise the capacity to develop one’s own personality and aspirations, determine one’s identity and define one’s personal relationships and that one of the essential components of any life plan is one’s gender and sexual identity.5 the inter-american court decided that the disqualification of ms pavez also constituted a violation of the right to work (article 26 of the american convention). for the court, ‘the reassignment of duties experienced by sandra pavez pavez undermined her teaching vocation and constituted a form of demotion in her job.’6 however, the court concluded that the state was not responsible for the violation of the right to access public service under conditions of equality (article 23.1.c of the american convention). although in previous decisions the court had said that this provision obliges states to put in practice objective and reasonable procedures for the appointment, promotion, suspension and dismissal of public officials,7 in the pavez case it found that ms pavez had not suffered any deterioration in her employment contract (indeed, her reassignment of functions had taken the form of a promotion, with a higher salary and more responsibilities).8 the position of the majority of the inter-american court regarding the right to work and the right to equal access to public functions is inconsistent. as the partially 5 iacthr, pavez pavez v chile, para 57. see also iacthr, gender identity and equality and nondiscrimination of same-sex couples, advisory opinion oc-24/17, series a no. 17, 24 november 2017, paras 87-91. iacthr, i.v. v bolivia, series c no. 329, 30 november 2016, para. 150. iacthr, atala riffo v chile, series c no. 239, 24 february 2012, para. 136. iacthr, vicky hernández et al. v honduras, series c no. 422, 26 march 2021, para. 116. 6 iacthr, pavez pavez v chile, para 139. 7 iacthr, cuya lavy et al. v peru, series c no. 438, 28 september 2021, para 159. iacthr, moya solís v peru, series c no. 425, 3 june 2021, para 108. 8 iacthr, pavez pavez v chile, paras 137-138. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 4 dissenting opinion of judge sierra porto demonstrates, the right to work has no direct and autonomous justiciability before the inter-american jurisdiction.9 moreover, should the right to work be autonomously justiciable before the inter-american court, it is not possible to say that a person’s vocation is protected by that right, that is, that the right to work comprises the right to perform only such activities that fall within one’s preferences.10 the majority of the court recognises that ms pavez’s contract was for a teacher position, not for a catholic religion teacher position.11 accordingly, and although the majority fails to come to this conclusion, ms pavez’s vocation as a religion teacher fell outside the scope of her labour contract. consequently, the right to equal access to public functions would have been a much more solid basis to protect ms pavez’s labour rights.12 this solution is also more consistent with the true nature of the discrimination suffered by ms pavez, who was discriminated against not by the catholic church but by the chilean state (see below). finally, the inter-american court found unanimously that the chilean state was responsible for the violation of the rights to judicial guarantees and judicial protection (articles 8.1 and 25 of the american convention). for the court, domestic judicial authorities had not carried out an adequate control of conventionality regarding the action of the school and ms pavez had lacked suitable and effective remedies to challenge the effects of the decision to revoke her certificate of suitability to teach catholic religion classes.13 3. sexual orientation discrimination 3.1. the prohibition of discrimination under international treaties the main international treaties on human rights prohibit discrimination, both in the enjoyment of conventional rights14 and in the enjoyment of rights recognised by domestic law.15 of course, the prohibition of discrimination does not mean that every 9 iacthr, pavez pavez v chile, partially dissenting opinion of judge sierra porto, para 2. 10 iacthr, pavez pavez v chile, partially dissenting opinion of judge sierra porto, para 9. 11 iacthr, pavez pavez v chile, para 139. 12 iacthr, pavez pavez v chile, partially dissenting opinion of judge sierra porto, para 10. 13 iacthr, pavez pavez v chile, para 159. 14 article 2, universal declaration on human rights, united nations general assembly resolution a/ res/217(iii). article 2.1, international covenant on civil and political rights, 999 unts 87. article 14, convention for the protection of human rights and fundamental freedoms (european convention on human rights), 213 unts 222. article 21, charter of fundamental rights of the european union, oj c 326/391. article ii, american declaration of the rights and duties of man. article 1, american convention on human rights, 1144 unts 182. article 2, african charter on human and peoples’ rights. 15 article 7, universal declaration on human rights. article 26, international covenant on civil and political rights. article 14, protocol 12 to the convention for the protection of human rights and fundamental freedoms (european convention on human rights), ets 177. article 21, charter of fundamental rights of the european union. article ii, american declaration of the rights and duties of man. article 24, american convention on human rights. article 3, african charter on human and peoples’ rights. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 5 difference in treatment is unacceptable. the expression discrimination refers to unfair, unreasonable, unjustified, or arbitrary distinctions which involve the denial of equal treatment to an individual or a group in relation to other individuals or groups in a similar position, due to a specific attribute of the former.16 the concept of discrimination includes three elements (mckean, 1983; weiwei, 2004; moeckli, 2010; farrior, 2015). the first one is a difference in treatment: two people or groups in a similar position are treated differently. the second element is a certain attribute of the discriminated person or group on the basis of which the distinction occurs: people or groups are treated differently because of their race, nationality, sexual orientation, etc. international human rights instruments usually establish a list of criteria which are generally considered discriminatory. however, this does not mean that the use of such criteria is always discriminatory. it may happen that their use is justified. for example, distinctions based on sex are generally illegitimate, but it is accepted that positive actions in favour of women may be acceptable in some cases. conversely, many unlisted criteria may be discriminatory if their use is not justified. attributes usually included in non-discrimination provisions are race, sex, language, religion, political opinions, national or social origin, property or economic status, and birth. many of these provisions also incorporate open categories such as ‘other status’ or ‘other social condition.’ this has allowed human rights bodies to enlarge the list of attributes whose use is prima facie discriminatory (including, for example, sexual orientation). classifications based on one of these attributes are frequently labelled suspect classifications and must be subject to strict scrutiny (strauss, 1991; saba, 2009; pollvogt, 2014). the third element of the definition of discrimination is the absence of sufficient justification for the difference of treatment. using an individual or group attribute to establish a distinction may be justified or unjustified depending on the purpose of the classification and the adequacy and proportionality of the attribute to that purpose. for example, it would not seem reasonable for pension laws to make distinctions based 16 united nations human rights committee (hrc), general comment no. 18: non-discrimination, hri/ gen/1/rev.1(1994), para 7. hrc, broeks v the netherlands, communication 172/1984, 9 april 1987, para 13. european court of human rights (ecthr), abdulaziz, cabales and balkandali v united kingdom, applications 9214/80, 9473/81 and 9474/81, 28 may 1985, para 72. ecthr, hämäläinen v finland, application 37359/09, grand chamber, 16 july 2014, para 108. iacthr, proposed amendments to the naturalization provision of the constitution of costa rica, advisory opinion oc-4/84, series a no. 4, 19 january 1984, paras 56-57. inter-american commission on human rights (iachr), maría eugenia morales de sierra, case 11.625, 19 january 2001, para 31. iachr, trabajadores indocumentados, case 12.834, 30 november 2016, para 74. african commission on human and peoples’ rights (achpr), organisation mondiale contre la torture et al. v rwanda, communications 27/89, 46/90, 49/91 and 99/93, october 1996, para. 23. achpr, amnesty international v zambia, communication 212/98, 5 may 1999, para 43. achpr, malawi african association et al. v mauritania, communications 54/91, 61/91, 98/93, 164-196/97 and 210/98, 11 may 2000, para 131. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 6 on people’s religion, but it is generally accepted that distinctions based on age are justified. states enjoy a certain margin of appreciation to determine whether, and to what extent, partial differences between otherwise similar situations justify differences in treatment.17 international law prohibits both direct and indirect discrimination. in the first case, a decision or measure contains a distinction which is itself discriminatory. in the second case, discrimination occurs as a consequence of the circumstances of the application of a decision or measure which appears to be neutral but affects a category of individuals or groups disproportionately due to their particular circumstances. finally, the prohibition of discrimination also entails the duty of states to adopt measures to fight against situations of structural segregation. indeed, in some cases there is no discriminatory decision or measure and discrimination is a consequence of de facto conditions that lead certain groups to find themselves in a structurally disadvantaged position (lerner, 2003). whether and, if so, to what extent the acts of private individuals and groups are subject to the principle of non-discrimination in its various forms is an issue subject to legal, political, and ethical controversy (de witte, 2009; lindenbergh, 2010; de mol, 2011). apart from the african charter on human and peoples’ rights,18 international human rights instruments do not explicitly refer to this issue. the application of the principle of non-discrimination to private individuals and groups would be a variant of the so-called horizontal effect of human rights, according to which international human rights norms also bind non-state actors. according to the traditional point of view in legal theory, human rights provide protection against state power: private actors are within the remit of internal law and not subject to international obligations. under this view, international human rights obligations are vertical: states owe human rights protection to individual and groups. the vertical effect stems from the fact that only states can become party to human rights treaties and be the subject of complaints before international human rights treaty monitoring bodies and courts. however, this traditional approach is being increasingly contested as nonstate actors become more and more powerful and the classic westphalian state-centred model of international relations is displaced by a more fragmented and globalised system of governance (reinisch, 2005; hessbruegge, 2005; d’aspremont, 2010; d’aspremont et al., 2015). 17 hrc, general comment no. 18: non-discrimination, para 13. ecthr, karlheinz schmidt v germany, application 13580/88, 18 july 1994, para 24. ecthr, burden v the united kingdom, application 13378/05, grand chamber, 28 april 2008, para 60. iacthr, proposed amendments to the naturalization provision of the constitution of costa rica, paras 56-57. iacthr, juridical condition and human rights of the child, advisory opinion oc-17/02, series a no. 17, 28 august 2002, paras 47-48. iacthr, juridical condition and rights of undocumented migrants, advisory opinion oc-18/03, series a no. 18, 17 september 2003, paras 88-89. iacthr, espinoza gonzáles v peru, series c no. 289, 20 november 2014, para 219. 18 article 28, african charter on human and peoples’ rights. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 7 accepting the horizontal effect of the international law of human rights, on the contrary, allows the creation of international human rights obligations also for private individuals and groups. under the direct horizontal effect of human rights, private actors would have a substantive duty to abide by international norms and their responsibility would be enforceable before international monitoring bodies and courts. under the indirect horizontal effect of human rights, states would have a duty to make private actors behave according to international norms: substantive responsibility and procedural standing to be sued before international monitoring bodies and courts would remain a state affair, but states would be interested in make private actors conform to international standards in order to avoid international responsibility (kanalan, 2016). under current international law, no direct horizontal effect can be afforded to human rights norms (nowak and januzewski, 2015; carrillo-santarelli, 2017). however, it is generally recognised that international human rights obligations (including the prohibition of discrimination) do have some kind of indirect horizontal effect. the dominant opinion seems to be that the prohibition of discrimination also binds private individuals and groups, although it cannot be applied with the same intensity as it is applied to public authorities. private individuals and groups are protected by some fundamental rights (right to private life, freedom of opinion and conscience, etc.) which grant them a wider margin of discretion when deciding their relations with other private individuals and groups.19 in other words, some classifications which, if established by public authorities would be clearly discriminatory, might be legitimate if used by private individuals or groups. a decision of a public authority to hire only employees of a certain religion or political convictions would be clearly discriminatory, but it is perfectly legitimate for a private individual to choose his friends according to their religion or political convictions. however, the exact scope of the principle in its application to private individuals and groups remains uncertain. according to one view, measures to prevent discrimination in private relations would generally be possible in the field of market relations, but not in the strictly private sphere (schokkenbroek, 2004). similarly, others suggest that the nondiscrimination principle would apply in relation to activities related to the enjoyment of goods or services, but not in relation to those related to more intimate relations of affinity or when people associate to spread some shared ideas (saba, 2011). 19 in various contexts, the un hrc, the ecthr, and the iacthr have affirmed that there is an obligation on the part of the state to fight against discrimination in private relationships. it is not clear how this obligation impacts on the horizontal effect of the principle of non-discrimination. hrc, general comment no. 28: article 3 (the equality of rights between men and women), ccpr/c/21/rev.1/add.10 (2000), para 31. hrc, nahlik v austria, communication 608/1995, 22 july 1996, para 8.2. echr, opuz v turkey, application 33401/02, 9 june 2009, paras 184-202. iacthr, velásquez rodríguez v honduras, series c no. 4, 29 july 1988, para 166. iacthr, displaced afrodescendant communities of the río cacarica river basin (operation génesis) v colombia, series c no. 270, 20 november 2013, para 224. iacthr, lópez soto et al. v venezuela, series c no. 362, 26 september 2018, para 147. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 8 3.2. non-discrimination on sexual orientation grounds international human rights treaties do not explicitly mention sexual orientation as a prima facie discriminatory criterion. however, human rights bodies have developed an increasingly specific case law indicating when classifications based on sexual orientation must be considered illegitimate. the european court of human rights has played a ground-breaking role in relation to this issue. in 1981, in its famous dudgeon judgement, the court affirmed that the criminalisation of homosexual relations between consenting adults was illegitimate under the european convention, though on the basis of the right to privacy and not on discrimination grounds.20 in more recent cases, the european court directly relied on the principle of nondiscrimination to judge distinctions based on sexual orientation. for example, it found that establishing different ages of consent for heterosexual and homosexual relations was discriminatory.21 the court deepened this approach in later judgements and declared illegitimate the discharge of homosexuals from the army,22 the legal impossibility to succeed the deceased partner as a tenant of a flat (while this was possible to opposite-sex couples),23 and the absence of medical insurance in favour of the same-sex partner (while the opposite-sex partner had this right).24 however, for the strasbourg court, although states must grant some kind of protection to same-sex couples (through civil partnership or other similar instruments),25 a purely heterosexual regulation of marriage is not discriminatory.26 nor are to be considered discriminatory the denial of a paternity leave to a woman living in a civil partnership with another woman, on the occasion of the birth of her partner’s child,27 or the refusal of a reversionary pension to the survivor of a same-sex civil partnership (while heterosexual married couples could benefit from a reversionary pension).28 20 ecthr, dudgeon v the united kingdom, application 7525/76, 22 october 1981, paras 37-63. see also ecthr, norris v ireland, application 10581/1983, 26 october 1988, paras 35-47. 21 ecthr, l. and v. v austria, applications 39392/98 and 39829/98, 9 june 2003, paras 64-55. 22 ecthr, lustig-prean and beckett v the united kingdom, applications 31417/96 and 32377/96, 27 september 1999, paras 80-105. ecthr, smith and grady v the united kingdom, applications 33985/96 and 33986/96, 27 september 1999, paras 69-112. ecthr, perkins and r. v. the united kingdom, applications 43208/98 and 44875/98, 22 october 2002, paras. 38-41. 23 ecthr, karner v austria, application 40016/98, 24 july 2003, paras 39-43. 24 ecthr, p.b. and j.s. v austria, application 18984/02, 22 july 2010, paras 21-50. 25 ecthr, vallianatos and others v greece, applications 29381/09 and 32684/09, grand chamber, 7 november 2013, paras 70-92. ecthr, oliari and others v italy, applications 18766/11 and 36030/11, 21 july 2015, paras 159-188. ecthr, orlandi and others v italy, applications 26431/12, 26742/12, 44057 and 60088/12, 14 december 2017, paras 191-212. ecthr, fedotova and others v russia, applications 40792/10, 30538/14 and 43439/14, 13 july 2021, paras 140-225. 26 ecthr, schalk and kopf v austria, application 30141/04, 24 june 2010, paras 87-110. ecthr, chapin and charpentier v france, application 40183/07, 9 june 2016, paras 36-40 and 48-52. 27 ecthr, hallier and others v france, application 46386/10, 12 december 2017, paras 19-34. see also ecthr, boeckel and gessner-boeckel v germany, application 8017/11, 7 may 2013, paras 21-33. 28 ecthr, manenc v france, application 66686/09, 21 september 2010, section on applicable law. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 9 in 1994, more than ten years after the dudgeon judgement, the united nations human rights committee delivered its toonen decision, in which it found that australian laws criminalising all kinds of homosexual relations between men were in breach of the nondiscrimination provision of the international covenant on civil and political rights.29 in more recent decisions, the committee has recalled that the prohibition of sexual orientation discrimination also applies to other situations. for example, it found discriminatory the exclusion of same-sex partners from pension benefits while heterosexual partners were granted such benefits.30 however, just as in the european context, not every difference of treatment based on sexual orientation is discriminatory. in relation to same-sex marriage, the united nations human rights committee shares the opinion of the european court: states are not obliged to include it in their domestic law.31 also, for the inter-american court of human rights the prohibition of discrimination includes discrimination on the basis of sexual orientation. in 2012, the court concluded that the refusal to grant a woman her children’s custody because of her sexual orientation was discriminatory.32 some years later, the court declared discriminatory the denial of a reversionary pension to the same-sex partner of the deceased person.33 and regarding the disciplinary regime of the armed forces, the inter-american court affirmed that it was discriminatory to punish with greater severity the fact of having homosexual relationships than heterosexual ones in the workplace.34 on the contrary, the african commission on human and peoples’ rights has had an ambiguous position regarding sexual orientation. in some resolutions it has affirmed that the non-discrimination principle ensures equal treatment irrespective of sexual orientation.35 however, it has also withdrawn the observer status and rejected the application for the observer status of human rights organisations dealing with sexual orientation issues. to justify this attitude, the african commission relied on a decision by the executive council of the african union calling the commission to take into account ‘african values’ when granting the observer status.36 the position of the inter-american court of human rights in relation to discrimination based on sexual orientation is stronger than that of its european, african, 29 hrc, toonen v australia, communication 488/1992, 31 march 1994, para. 8. 30 hrc, young v australia, communication 941/2000, 18 september 2003, para. 10. hrc, x. v colombia, communication 1361/2005, 30 march 2007, para. 7. 31 hrc, joslin v new zealand, communication 902/1999, 30 july 2002, para. 8. 32 iacthr, atala riffo v chile, paras 77-146. 33 iacthr, duque v colombia, series c no. 310, 26 february 2016, paras 89-139. 34 iacthr, flor freire v ecuador, series c no. 315, 31 august 2016, paras 108-140. 35 achpr, zimbabwe human rights ngo forum v zimbabwe, communication 245/2002, 25 may 2006, para 169. achpr, protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity, resolution 275(lv)2014, 12 may 2014. 36 human rights watch, statement on african commission’s rejection of observer status applications by three human rights organizations, 16 december 2022, https://www.hrw.org/news/2022/12/16/statementafrican-commissions-rejection-observer-status-applications-three-human http://10.17561/tahrj.v20.7695 https://www.hrw.org/news/2022/12/16/statement-african-commissions-rejection-observer-status-applications-three-human https://www.hrw.org/news/2022/12/16/statement-african-commissions-rejection-observer-status-applications-three-human sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 10 and united nations counterparts. the inter-american court is the only human rights’ jurisdiction that has explicitly declared that states must grant same-sex couples the same possibilities that opposite-sex couples enjoy in all fields of law, which means that marriage must be open to same-sex couples.37 two conclusions can be drawn from this short revision of international case law. the first one is that international jurisprudence has dealt with discriminatory situations created by state decisions. the state obligation to fight against discrimination in private relations and de facto structural discrimination have been addressed only in a general way and mainly by political (not jurisdictional or quasi-jurisdictional) international bodies.38 the exception to this is again the inter-american court, which has acknowledged the structural nature of some cases of discrimination based on sexual orientation and urged states to combat it.39 and this particular exception leads to the second conclusion: the inter-american court has gone further than any other jurisdictional or quasi-jurisdictional human rights body when dealing with discrimination based on sexual orientation. the pavez pavez case, which will be studied in detail in section 5, can be placed along these same lines. 4. autonomy of religious organisations the main international human rights instruments protect religious freedom,40 which is generally recognised as one of the basis of a democratic and pluralistic society.41 religious freedom is an individual right, but it has also a collective dimension: 37 iacthr, gender identity and equality and non-discrimination of same-sex couples, paras 172-228. 38 for example, un high commissioner for human rights, discrimination and violence against individuals based on their sexual orientation and gender identity, report to the human rights council, 4 may 2015, a/ hrc/29/23, paras. 16-17. oas general assembly, human rights, sexual orientation, and gender identity and expression, resolution 2863, 5 june 2014, ag/res. 2863 (xliv-o/14). coe parliamentary assembly, situation of lesbians and gays in council of europe member states, recommendation 1474, 26 september 2000. coe parliamentary assembly, discrimination on the basis of sexual orientation and gender identity, resolution 1728, 29 april 2010. coe committee of ministers, measures to combat discrimination on grounds of sexual orientation or gender identity, recommendation cm/rec(2010)5, 31 march 2010. iachr, violencia contra personas lesbianas, gay, bisexuales, trans e intersex en américa, 12 november 2015, oas/ser.l/v/ii.rev.2. 39 iacthr, atala riffo v chile, paras 92 and 267. iacthr, gender identity, and equality and nondiscrimination with regard to same-sex couples, para 35. iacthr, azul rojas marín et al. v peru, 12 march 2020, series c no. 402, para 90. iacthr, vicky hernández et al. v honduras, para 119. 40 article 18, universal declaration on human rights. article 18, international covenant on civil and political rights. article 9, convention for the protection of human rights and fundamental freedoms (european convention on human rights). article 10, charter of fundamental rights of the european union. article iii, american declaration of the rights and duties of man. article 12, american convention on human rights. article 8, african charter on human and peoples’ rights. 41 ecthr, kokkinakis v greece, application 14307/88, 25 may 1993, para 31. ecthr, leyla sahin v turkey, application 44774/98, grand chamber, 10 november 2005, para 104. iacthr, ‘the last temptation of christ’ (olmedo bustos et al.) v chile, para 79. iacthr, río negro massacres v guatemala, series c no. 250, 4 september 2012, para 154. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 11 individuals are free to gather and associate for religious purposes.42 (on religious freedom in international law see arlettaz, 2018; bielefeldt, ghanea-hercock and wiener, 2016; murdoch, 2012; arlettaz, 2012; arlettaz, 2011; scolnicov, 2010; taylor, 2005). under the perspective of the international law of human rights, religious groups are private associations based on the consent of the individuals who constitute them. they can define their tenets without arbitrary state interference and organise themselves internally with a certain degree of autonomy. in particular, religious groups are not compelled to organise themselves in a democratic way. this means that individual members do not have a right to force the group to recognise their dissent from the group’s official beliefs. however, individuals do have a right to quit the group at any moment.43 as a requirement of a democratic society, states must remain neutral vis-àvis different religious communities.44 for this, states cannot control the legitimacy of religious beliefs themselves.45 an assessment of these beliefs would assume that the state is authorised to act in a paternalistic way, protecting citizens from the consequences of their own religious decisions (arlettaz, 2013). of course, this aspect of the duty of neutrality does not prevent authorities from determining whether the activities of religious groups are a threat to public order, public health, morals or safety, or the rights and freedoms from others. besides, religious groups enjoy a certain margin of autonomy to rule their internal affairs and states must abstain from interfering in those affairs. for example, states cannot influence the election of religious leaders46 or determine the right affiliation for a community group in relation to a wider group.47 42 ecthr, hassan and chaush v bulgaria, application 30985/96, grand chamber, 16 october 2000, para 62. ecthr, fernández martínez v spain application 56030/07, grand chamber, 12 june 2014, para 127. ecthr, sindicatul ‘pastorul cel bun’ v romania, application 2330/09, grand chamber, 9 july 2013, para 136. iachr, ecuador 1997 – informe de país, 24 april 1997, oea/ser.l/v/ii.96. doc. 10 rev. 1, chapter ix. 43 european commission on human rights (echr), knudsen v norway, application 11045/84, 8 march 1985, section on applicable law. echr, karlsson v sweden, application 12356/86, 8 september 1988, section on applicable law. ecthr, holy synod of the bulgarian orthodox church (metropolitan inokentiy) and others v bulgaria, applications 412/03 and 35677/04, 22 january 2009, at para. 137. 44 ecthr, metropolitan church of bessarabia and others v moldova, application 45701/99, 13 december 2001, para 116. ecthr, leyla sahin v turkey, para 107. ecthr, religionsgemeinschaft der zeugen jehovas and others v austria, application no. 40825/98, 31 july 2008, para 97. ecthr, magyar keresztény mennonita egyház and others v hungary, application 70945/11, 28 june 2016, para 76. ecthr, fernández martínez v spain, para 128. 45 ecthr, metropolitan church of bessarabia and others, para 123. ecthr, manoussakis and others v greece, application 18748/91, 20 september 1996, para 47. ecthr, hassan and chaush, para 78. ecthr, refah partisi (the welfare party) and others v turkey, applications 41340/98, 41342/98, 41343/98 and 41344/98, grand chamber, 13 february 2003, para 91. ecthr, leyla sahin, para 107. ecthr, dogru v france, application 27058/05, 4 december 2008, para 61. 46 ecthr, hassan and chaush, paras 75-89. ecthr, holy synod of the bulgarian orthodox church (metropolitan inokentiy) and others v bulgaria, paras 105-160. ecthr, miroļubovs and others v latvia, application 798/05, 15 september 2009, paras 77-96. ecthr, agga v greece ii, applications 50776/99 and 52912/99, 17 october 2002, paras 45-61. ecthr, agga v greece iii, application 32186/02, 13 july 2006, paras 21-29. ecthr, agga v greece iv, application 33331/02, 13 july 2006, paras 21-29. 47 ecthr, metropolitan church of bessarabia and others, para 123. ecthr, i̇zzettin doğan and others v turkey, application 62649/10, grand chamber, 26 april 2016, para 121. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 12 according to universal, european and inter-american case law, religious groups have a right to be recognised as such and to get legal personality under domestic law.48 states can differentiate between religious groups, granting them different status with differentiated rights and duties, as long as this differentiation is reasonable and proportionate to a legitimate aim.49 a particularly controversial aspect of the issue of the status of religious groups is that of the state’s attitude towards these groups. a wide range of possibilities exist which goes from the absence of any state religion (in the form of liberal abstentionism or republican moral interference) to the existence of a theocratic state where the representatives of a particular religious group play a central political role in the structure of the state. according to international human rights bodies, state or official churches may be legitimate, provided that the status of the favoured church does not entail the violation of religious freedom of, or discrimination against, third parties.50 states can grant religious groups some public powers (for example, to conclude marriages with civil effect), but this is always the result of a kind of state delegation, not an immanent prerogative of the religious group itself. in any case, however, the delegation of state powers must respect the international obligations of the state concerning human rights. for this, for example, the application of religious rules to some issues like family relations and inheritance conflicts is not a violation of international standards, provided that religious rules are not forcibly applied to people who do not belong to that religious group.51 5. the court’s judgement: which was the right standard to be applied? in the case before the inter-american court, to decide if ms pavez was a victim of a discriminatory treatment two issues had to be considered. first, was the allegedly discriminatory act the consequence of a private or a public decision? second, which was 48 hrc, sister immaculate joseph and 80 teaching sisters of the holy cross of the third order of saint francis in menzingen of sri lanka v sri lanka, communication 1249/2004, 14 february 2004, para 7. ecthr, jehova’s witnesses of moscow and others v russia, application 302/02, 10 june 2006, para 160. ecthr, religionsgemeinschaft der zeugen jehovas and others v austria, para 62. ecthr, magyar keresztény mennonita egyház and others v hungary, para 90. iachr, informe anual 1979-1980, 2 october 1980, oea/ser.l/v/ii.50 doc. 13 rev.1, chapter v: paraguay, para 10. 49 hrc, sergei malakhovsky and alexander pikul v belarus, communication 1207/2003, 23 august 2005, para 7. ecthr, canea catholic church v greece, application 25528/94, 16 december 1997, para 47. ecthr, alujer fernández and caballero garcía v spain, application 53072/99, 14 june 2001, section on the applicable law. ecthr, savez crkava ‘riječ života’ and others v croatia, application 7798/08, 9 december 2010, paras 85-93. 50 hrc, general comment no. 22: the right to freedom of thought, conscience and religion, cpr/c/21/ rev.1/add.4 (1993), para 9. ecthr, darby v sweden, application 11581/85, 23 october 1990, paras 2834. ecthr, ásatrúarfélagið v iceland, application 22897/08, 18 september 2012, paras 26-35. achpr, hossam ezzat & rania enayet (represented by egyptian initiative for personal rights & interights) v the arab republic of egypt, communication 355/07, 25 february 2016, paras 143-165. 51 ecthr, refah partisi (the welfare party) and others v turkey, paras 117-128. achpr, amnesty international et al. v sudan, applications 48/90, 50/91, 52/91 and 89/93, 15 november 1999, para 72. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 13 the right standard to be applied to decide if such a public or private act was discriminatory? these questions will be addressed in the following paragraphs. 5.1. discrimination by public authorities and discrimination by private entities the first the point to consider is about the public or private nature of the allegedly discriminatory decision concerning ms pavez. the argument of the inter-american commission was somewhat contradictory. on the one hand, the commission suggested that the act of disqualification of ms pavez as a religion teacher could be directly attributed to the state, because ms pavez was a teacher at a public school and the power given to religious authorities to certify the suitability of religion teachers was provided for in the legislation, which delegated this power to religious authorities. on the other hand, however, the commission said that upon learning of a discriminatory act by a non-state actor, the state had a duty to put an end to it and provide full reparation, thus implying that the attribution of responsibility to the state was only indirect (because of its duty to assure non-discrimination in private relations).52 the state agents, on the contrary, emphasised that the disqualification act should not be attributed to the state. for them, the certificate of suitability served as a mechanism to guarantee the autonomy of religious entities to pursue their basic activities and thus the decision to terminate ms pavez’s teaching functions was to be attributed entirely to the catholic church. regarding the state obligation to guarantee that conventional rights are respected even in private relations (like those between a church and the teachers whose suitability this church certifies), the state said that ms pavez had not exhausted domestic remedies, which prevented the state from addressing any possible conventional violation.53 in spite of some ambiguity,54 the court seems to believe that discrimination against ms pavez was a consequence of a private action (the decision by the catholic vicariate), not of a public one (the decision of the public authority to change ms pavez’s teaching functions). indeed, the court considers that decree 924 (the domestic law applicable to the case) did not establish any differences in treatment between persons on the basis of their sexual orientation, nor did it constitute a form of indirect discrimination.55 on the contrary, the court finds that the chilean state was indirectly responsible for the violation of human rights because the aforementioned decree did not establish any means by which the decision of the religious authorities ‘may be subject to subsequent review by the 52 iacthr, pavez pavez v chile, para 37. 53 iacthr, pavez pavez v chile, paras 43-45. 54 the court recalled its case law according to which states must refrain from taking actions that are directly or indirectly aimed at creating situations of discrimination, but also insisted on the fact that states are required to adopt affirmative measures to change situations of structural discrimination which are detrimental to a specific group of persons and prevent and punish discriminatory actions of private individuals and groups. iacthr, pavez pavez v chile, paras 65-66 and 108. 55 iacthr, pavez pavez v chile, para 97. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 14 administrative authorities, or to appropriate and effective remedies before the jurisdictional authorities.’56 the difference between the acts of public authorities which can trigger direct state responsibility and the acts of private individuals or groups which can only trigger indirect state responsibility is of great importance in this context. according to general international law, one of the essential conditions for state international responsibility is that the conduct in question is attributable to the state. in theory, any conduct of individuals or groups linked to the state by nationality, habitual residence or incorporation might be attributed to the state. however, such a broad approach is avoided in international law with a view to limiting responsibility to conduct which engages the state as an organisation and, consequently, to recognising the autonomy of individuals or groups acting on their own account and not at the instigation of a public authority.57 for this, acts of private individuals or groups can trigger state responsibility only if the state fails to prevent or punish those acts when having a duty to do so. in other words, private acts will engage state responsibility only if there is an act or omission, related to those acts, which can be attributable to the state. but, for the state, the content of the duty to do or not to do something by itself may be different from the content of the duty to prevent or punish the acts of private individuals or groups. this was, indeed, the situation in the pavez pavez case. as it will be explained in the following paragraphs, the content of the state duty not to discriminate is different from the content of the state duty to prevent or punish discrimination by private individuals or groups. 5.2. strict and flexible non-discrimination standards the discussion about the public or private nature of the allegedly discriminatory act leads to the second issue: that of the right standard that had to be applied to decide whether that act was discriminatory. the inter-american commission indicated that the difference in treatment based on sexual orientation to the detriment of sandra pavez did not even satisfied the first step of the proportionality test, namely, the legitimacy of the purpose (which, when referred to suspect classifications, must be assessed strictly in terms of requiring a compelling reason).58 the state, on the contrary, pointed out that the principle of religious freedom protects the right of religious communities to freely choose their teachers.59 given that the court reached the conclusion that discrimination had arisen from an act of a private entity (a religious organisation), one could have expected it to have 56 iacthr, pavez pavez v chile, para 97. 57 draft articles on responsibility of states for internationally wrongful acts with commentaries, text adopted by the international law commission at its fifty-third session in 2001 and submitted to the general assembly (a/56/10), yearbook of the international law commission, 2001, vol. ii, part two, p. 38. 58 iacthr, pavez pavez v chile, para 38. 59 iacthr, pavez pavez v chile, para 42. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 15 applied a flexible discrimination standard, and not the rigorous one which corresponds to acts of public authorities. however, the court straightforwardly affirmed that, as sexual orientation is a suspect classification, a strict scrutiny had to be applied. this meant that, to be legitimate, the different treatment had to be necessary to achieve an imperative objective recognised by the convention and the benefits of the different treatment had to clearly outweigh the restrictions it imposes on conventional rights.60 in the case, the court considered that the costs of the restrictive measure imposed on ms pavez did not outweigh the advantages obtained in terms of protecting religious freedom and the right of parents to choose their children’s education.61 in its argumentation, the court made two mistakes. first, it considered the discriminatory situation to be the result of a private act, while the change in ms pavez’s functions had been decided by the state acting as her employer. second, in spite of having reached that conclusion, the court applied a rigorous standard, which corresponds to acts of public authorities, not of private individuals or groups. the problem here is that, while the catholic church wanted everything (having religion teachers paid by the state and a complete discretion to choose and remove those teachers), the court gave it nothing (affirming that even private acts by religious organisations are subject to a strict scrutiny on discrimination grounds). the right solution lies in the middle: religion teachers paid by the state are public employees and consequently their election and removal is subject to the strict scrutiny which corresponds to acts of public authorities; religion teachers paid by religious groups can be chosen and removed according to more flexible standards. translating this into the language of state responsibility means that direct state responsibility is engaged when an act directly attributable to the state, scrutinised under strict discrimination standards, can be deemed discriminatory. on the other hand, indirect state responsibility can only be triggered if the state fails to prevent or punish an act of a private individual or group which, scrutinised under more flexible discrimination standards, can be deemed discriminatory. if, in the pavez pavez case, the act in question had truly been a private one, the court should have analysed whether it had been discriminatory under flexible standards and whether the state had fallen short of its international obligation to prevent or punish that act. as already explained, the court did not do this: it scrutinised the act under strict discrimination standards, as it had been directly attributable to the state. fortunately for the solution of the case, the court was wrong in its first conclusion, because the act was indeed directly attributable to the state. the inter-american court’s judgement does not take religious freedom seriously. the court acknowledged that religious freedom ‘constitutes a transcendental element in the protection of the convictions of believers and in their way of life’62 and that ‘religious communities must be free from any arbitrary interference by the state.’63 this signifies 60 iacthr, pavez pavez v chile, paras 68 and 141. 61 iacthr, pavez pavez v chile, para 143. 62 iacthr, pavez pavez v chile, para 74. 63 iacthr, pavez pavez v chile, para 118. http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 16 that some acts of religious groups may indeed be subject to more flexible standards (called ministerial exceptions by the court); however, for the court, this flexibility only ‘operates in matters related to the functioning of religious communities, such as the determination of the membership of the church, its ministers and its hierarchies.’64 reducing the autonomy of religious groups to those particular areas greatly curtails religious freedom. the european directive on equality in employment, for example, permits ‘churches and other public or private organisations, the ethos of which is based on religion or belief’ to require ‘individuals working for them to act in good faith and with loyalty to the organisation’s ethos.’65 also, in relation to sexual orientation and gender identity, the council of europe parliamentary assembly permits states to grant exemptions to religious organisations when such organisations are ‘engaging in religious activities’ or when ‘legal requirements conflict with tenets of religious belief and doctrine, or would require such [...] organisations to forfeit any portion of their religious autonomy.’66 finally, the european court of human rights has recognised that people working for religious organisations have a duty of loyalty towards them and that the more important the person’s responsibilities within the organisation, the stronger the duty is.67 6. some conclusions: the autonomy of religious groups and the prohibition of discrimination determining which standard is to be applied to decide whether an act is discriminatory under the particular circumstances of a case is generally quite troublesome. however, although opinions on the issue diverge, an assumption commonly accepted is that private individuals and groups enjoy a wider margin of discretion than public authorities when deciding their relations with other individuals or groups. unlike state institutions, private individuals and groups are entitled to fundamental rights (to privacy, to freedom of religion and opinion, etc.) whose exercise would become impossible if the prohibition of discrimination was always strictly applied. among private groups, religious groups are in a particular position. the collective dimension of religious freedom grants them autonomy to organise their internal affairs, decide their relations with other groups, establish the conditions for entering and abandoning the group, and determine who can speak in their name. of course, religious groups are bound by human rights standards. the question is thus how to balance religious autonomy (protected under religious freedom provisions) with third parties’ 64 iacthr, pavez pavez v chile, para 127. 65 article 4.2, council directive 2000/78/ec of 27 november 2000 establishing a general framework for equal treatment in employment and occupation. 66 coe parliamentary assembly, discrimination on the basis of sexual orientation and gender identity, resolution 1728 (2010), 29 april 2010, point 17. 67 ecthr, obst v germany, application 425/03, 23 september 2010, paras 39-53. ecthr, schüth v germany, application 1620/03, 23 september 2010, paras 53-75. ecthr, siebenhaar v germany, application 18136/02, 3 february 2011, paras 36-48. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 17 rights (including the rights of members, ministers and employees of the religious group itself protected under non-discrimination provisions).68 the argument that has been defended in this article is that the nearer the core of religious convictions, the stronger the capacity of religious groups is to demand loyalty from its members, ministers and employees. as religious education is crucial in maintaining and transmitting a faith, religious groups must enjoy a wide discretion to choose religious teachers. also, given the comprehensive nature of religions, the loyalty that religious groups can demand to their employees may sometimes entail a strong commitment to religious ideals. however, this wide margin of discretion corresponds to private acts of religious groups themselves, not to acts of public authorities even if they are guided, advised or supported by religious groups. in 2022, the inter-american court of human rights decided the pavez pavez case. in the judgement, the court persisted in its previous case law and used a strict criteria to analyse discrimination on the basis of sexual orientation. as it has been said, the case concerned a chilean teacher of catholic religion in a public school who had been detached from her position because the religious authority considered that her sexual orientation was not in conformity with catholic doctrine. simply put, the decision of the court went like this: discrimination on the basis of sexual orientation is prohibited; consequently, religious groups cannot establish distinctions on the basis of sexual orientation. as it has been explained, the reasoning of the inter-american court was doubly flawed. on the one hand, the court considered that the change in the teacher’s assignment was due to an act of the religious authority, not taking duly into account the fact that ms pavez was a professor in a public school whose salary was paid by the state and that the decision to remove her from her original position had been taken by a public authority. on the other hand, the court made a second mistake which, paradoxically, led it to adopt the right decision: in spite of considering that the removal was a consequence of a private act, the court applied a strict test of conventionality control, which fits better the control of public decisions than of private ones. taking the wrong path, the inter-american court reached the right decision. the controversy was not purely technical: the court examined the margin of autonomy enjoyed by religious groups in their relation to third parties and, in particular, the possibility for religious groups to apply distinction criteria which, in other contexts, would be clearly deemed discriminatory. in similar cases, other human rights bodies reached conclusions opposite to that of the inter-american court. the united nations human rights committee accepted the legitimacy of the relocation of a public school religion teacher because the religious authority considered that his ideological positions 68 see this same argument in a comment on discrimination and religious freedom published some time before the iacthr’s decision on the pavez pavez case (capdevielle, 2021). http://10.17561/tahrj.v20.7695 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 18 diverged from catholic orthodoxy.69 and the european court of human rights validated the termination of labour contracts because of some circumstances relating to the private life of the teacher which were considered unacceptable by the catholic hierarchy: in one case, because the teacher had made public that he was a married priest;70 in another, because he had divorced and remarried without following catholic rules on the dissolution of marriages.71 according to the position presented in this article, both the human rights committee and the european court delivered bad solutions (the legitimacy of the removal or dismissal of a public school teacher because of his private convictions or the acts of his private life) for bad reasons (the idea that a state decision based on a religious authority’s opinions is a private and not a public act and that, consequently, a wide margin of discretion should be recognised). the inter-american court, on the contrary, reached the right solution (the illegitimacy of the removal or dismissal of a public school teacher because of the acts of her private life, in particular her sexual orientation), though also for bad reasons. the paradox here is that two contradictory bad reasons led the court to the right solution. indeed, the inter-american court qualified the dismissal as the result of a private decision (which was wrong), but applied to this act a strong non-discrimination test (which is appropriate for public decisions, but not for private ones). the inter-american decision is bad news for religious freedom. by saying that even private acts by private religious groups are subject to rigorous non-discrimination standards it curtails the margin of autonomy of religious groups to have their own views on moral issues (however controversial or unpleasant for the majority of society they may be) and to decide who can speak in their name in the public arena.72 it is also bad news for the separation between churches and state. in applying to private religious groups a standard which corresponds to public authorities, the court implicitly treats the catholic church as a branch of the state. more broadly, the endorsement of doctrinal religious teaching in public schools, under a system of cooperation between churches and the state which the court does not question, is also bad news. this system permits students of public schools to be 69 hrc, william eduardo delgado páez v colombia, communication 195/19859, 23 august 1990, para. 5. 70 ecthr, fernández martínez v spain, paras 102-153. on the fernández martínez case see martíneztorrón (2017). see also, more generally, combalía solís (2013) and gonzález-varas ibáñez (2018). 71 ecthr, travas v croatia, application 75581/13, 4 october 2016, paras 75-115. 72 the reduced margin of autonomy granted to religious groups has arisen criticism by some commentators (see navarro floria, 2022). the true problem in the judgement is not, however, the court’s decision itself (as it has been explained, the court reached the right decision), but the idea implicit in it that a rigorous nondiscrimination standard should be applied to the acts of religious groups themselves, even when they do not entail the intervention or support of public authorities. http://10.17561/tahrj.v20.7695 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 19 indoctrinated in private religious beliefs by professors paid with public funds but chosen by private religious entities. the solution is not only problematic from the point of view of the neutrality of the state concerning religious matters, but also from the point of view of the right to access public service under conditions of equality. in any case, the analysis of the general characteristics of this system falls beyond the scope of this article. 7. references arlettaz, f. 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(2021). ‘¿tienen las iglesias el derecho a discriminar? algunos elementos para la reflexión’, in t. gonzález luna and j. rodríguez zepeda (eds.), dioses, iglesias y diversidad: la discriminación y el estado laico, universidad de guadalajara, guadalajara, pp. 121-153. carrillo-santarelli, n. (2017). direct international human rights obligations of non-state actors: a legal and ethical necessity, oisterwijk: wolf legal publishers. combalía solís, z. (2013). la contratación del profesorado de religión en la escuela pública, valencia, tirant lo blanch. d’aspremont, j. (2010). ‘international law-making by non-state actors: changing the model or putting the phenomenon into perspective?’, in m. noortmann and c. ryngaert (eds), non-state actor dynamics in international law: from law taking to law making?, surrey, ashgate publishing group, pp. 171-194. https:// doi.org/10.4324/9781315598475-8 d’aspremont, j. et al. (2015). ‘sharing responsibility between non-state actors and states in international law: introduction’, netherlands international law review, 62(1), pp. 49-67. https://doi.org/10.1007/s40802-015-0015-0 de mol, m. (2011). ‘the novel approach of the cjeu on the horizontal direct effect of the eu principle of non-discrimination: (unbridled) expansionism of eu law?’, maastricht journal of european and comparative law, 18(1-2), pp. 109-135. https://doi.org/10.1177/1023263x1101800106 http://10.17561/tahrj.v20.7695 https://doi.org/10.18172/redur.4102 https://doi.org/10.4067/s0718-00122013000100007 https://doi.org/10.4324/9781315598475-8 https://doi.org/10.4324/9781315598475-8 https://doi.org/10.1007/s40802-015-0015-0 https://doi.org/10.1177/1023263x1101800106 sexual orientation discrimination and autonomy of religious groups in the inter-american case law the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 20 de witte, b. (2009). ‘the crumbling public/ private divide: horizontality in european anti-discrimination law’, citizenship studies, 13(5), pp. 515-525. https://doi. org/10.1080/13621020903174670 farrior, s. (ed) (2015). equality and non-discrimination under international law, farnham, ashgate. gonzález-varas ibáñez, a. (2018). la enseñanza de la religión en europa, madrid, digital reasons. hessbruegge, j. a. (2005). ‘human rights violations arising from conduct of nonstate actors’, buffalo human rights law review, 11, pp. 21-88. kanalan, i. (2016). ‘horizontal effect of human rights in the era of transnational constellations: on the accountability of private actors for human rights violations’, european yearbook of international economic law, 7, pp. 423-460. https://doi.org/10.1007/978-3-319-29215-1_17 lerner, n. (2003). group rights and discrimination in international law, the hague, martinus nijhoff. https://doi.org/10.1163/9789004481541 lindenbergh, s. d. (2010). ‘fundamental rights in private law. anchors or goals in a globalizing legal order?’, in m. faure and a. van der walt, globalization and private law. the way forward, cheltenham, edward elgar, pp. 367-382. martínez-torrón, j. (2017). ‘la autonomía religiosa y la vida privada de los profesores de religión en la jurisprudencia de estrasburgo: el caso fernández martínez’, in m. moreno antón, (ed.), sociedad, derecho y factor religioso. estudios en honor del profesor isidoro martín sánchez, granada, comares, pp. 374-390. mckean, w. (1983). equality and non-discrimination under international law, oxford, oxford university press. https://doi.org/10.2307/1288694 moeckli, d. (2010). ‘equality and non-discrimination’, in d. moeckli, s. mshah, s. sivakumaran, and d. harris (eds), international human rights law, oxford, oxford university press, pp. 148-172. murdoch, j. (2012). protecting the right to freedom of thought, conscience and religion under the european convention on human rights, strasbourg, council of europe. navarro floria, j. g. (2022). ‘libertad religiosa y educación en el sistema interamericano de derechos humanos: primeras notas sobre la sentencia del caso pavez vs. chile’, revista general de derecho canónico y derecho eclesiástico del estado, 59, pp. 1-25. nowak, m.; januzewski, k. m. (2015). ‘non-state actors and human rights’, in m. noortmann, a. reinisch and c. ryngaert (eds), non-state actors in international law, oxford: hart publishing, pp. 113-162. pollvogt, s. w. (2014). ‘beyond suspect classifications’, university of pennsylvania journal of constitutional law, 16, pp. 739-803. http://10.17561/tahrj.v20.7695 https://doi.org/10.1080/13621020903174670 https://doi.org/10.1080/13621020903174670 https://doi.org/10.1007/978-3-319-29215-1_17 https://doi.org/10.1163/9789004481541 https://doi.org/10.2307/1288694 fernando arlettaz the age of human rights journal, 20 (june 2023), e7695 issn: 2340-9592 doi: 10.17561/tahrj.v20.7695 21 reinisch, a. (2005). ‘the changing international legal framework for dealing with non-state actors’, in p. alston (ed), non-state actors and human rights, oxford, oxford university press, pp. 37-89. saba, r. (2009) ‘igualdad, clases y clasificaciones. ¿qué es lo sospechoso de las categorías sospechosas?’, in r. gargarella (ed), teoría y crítica del derecho constitucional, buenos aires, abeledo perrot, pp. 695-742. saba, r. (2011). ‘igualdad de trato entre particulares’, lecciones y ensayos, 89, pp. 217-276. schokkenbroek, j. (2004). ‘a new european standard against discrimination: negotiating protocol n° 12 to the european convention on human rights’, in j. niessen and i. chopin (eds), the development of legal instruments to combat racism in a diverse europe, leiden, martinus nijhoff, pp. 61-79. https://doi. org/10.1163/9789047413172_004 scolnicov, a. (2010). the right to religious freedom in international law. between group rights and individual rights, london, routledge. https://doi. org/10.4324/9780203842638 strauss, m. (1991). ‘reevaluating suspect classifications’, seattle university law review, 35, pp. 135-174. taylor, p. m. (2005). freedom of religion. un and european human rights law and practice, cambridge, cambridge university press. https://doi.org/10.1017/ cbo9780511616129 weiwei, l. (2004). ‘equality and non-discrimination under international human rights law’, norwegian centre for human rights research notes, 3, pp. 1-26. received: 15/01/2023 accepted: 21/04/2023 http://10.17561/tahrj.v20.7695 https://doi.org/10.1163/9789047413172_004 https://doi.org/10.1163/9789047413172_004 https://doi.org/10.4324/9780203842638 https://doi.org/10.4324/9780203842638 https://doi.org/10.1017/cbo9780511616129 https://doi.org/10.1017/cbo9780511616129 sexual orientation discrimination and autonomy of religious groups in the inter-american case law abstract 1. introduction 2. the pavez pavez case 3. sexual orientation discrimination 3.1. the prohibition of discrimination under international treaties 3.2. non-discrimination on sexual orientation grounds 4. autonomy of religious organisations 5. the court’s judgement: which was the right standard to be applied? 5.1. discrimination by public authorities and discrimination by private entities 5.2. strict and flexible non-discrimination standards 6. some conclusions: the autonomy of religious groups and the prohibition of discrimination 7. references promoting the defence’s role in the preliminary investigation, a challenge in maghrebian criminal proceedings the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 47 promoting the defence’s role in the preliminary investigation, a challenge in maghrebian criminal proceedings anouar hatim1 mohammed miloudi2 najib el araj3 abstract: maghrebian criminal procedures have long been based on a theory inherited from french legislation, based on the relationship between the effectiveness of police investigations and the weakening of the role of the lawyer, relying on the principles of the inquisitorial system, in particular the principle of secrecy that governs the entire preliminary phase of the trial. through this article, the authors attempt to refute the latter theory, proving that any strengthening of the role of the lawyer during the preliminary investigation constitutes a deterrent and protection of the authorities against allegations of torture and ill-treatment, and a decisive means to guarantee the protection of the rights of the accused, and therefore, a contribution to the consecration of the efficiency of the investigations and the procedural fairness. keywords: rights of the defence, lawyer’s assistance, accused, maghrebian criminal procedure, preliminary investigation. summary: 1. introduction. 2. the inquisitorial nature as a characteristic feature of the preliminary investigation. 3. the decisive impact of the preliminary investigation on the criminal trial. 4. the passive role of the lawyer in the preliminary investigation. 5. towards a strengthening of the lawyer’s role in the preliminary investigation. 5.1. legal and practical basis for the lawyer’s assistance. 5.2. scope of the lawyer’s assistance. 6. temporary derogations from the right to legal assistance. 7. conclusion. 1. introduction the rights of the defence occupy an important place in all democratic countries. respect for them remains an absolute necessity (pradel, 2001, p. 325), not only because they are a means of preventing miscarriages of justice, but also because they are a moral guarantee and an imperative requirement for achieving legal effectiveness. even in the absence of legal texts, the rights of the defence require the right of the person concerned to be assisted by a lawyer, to be informed of all the facts attributed to them, and to be given a reasonable and sufficient time to prepare and present their defence (jacobs, et al., 2009, p. 1122). 1 phd candidate, faculty of law, economics and social sciences, university sidi mohamed ben abdellah, morocco, https://orcid.org/0000-0001-9025-2903; e-mail: anouar.hatim@usmba.ac.ma 2 phd candidate, faculty of law, economics and social sciences, university sidi mohamed ben abdellah, morocco, https://orcid.org/0000-0003-2759-5449; e-mail: mohammed.miloudi1@usmba.ac.ma 3 professor at the department of law, faculty of law, economics and social sciences, university sidi mohamed ben abdellah, morocco. e-mail: najib.elarraj@usmba.ac.ma https://orcid.org/0000-0001-9025-2903 https://orcid.org/0000-0003-2759-5449 promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 48 in this respect, the right of access to a lawyer is at the heart of the notion of the rights of the defence,4 as a fundamental right (for some, a human right (jimeno-bulnes, 2019, p. 58) and freedom based on the principles of natural justice5) established by the criminal procedures of the maghreb countries. nevertheless, to achieve efficiency in the investigations carried out by the procedural authorities, the latest legislations agree on the confinement of the lawyer in a passive role, contrary to the natural role of any defence. under the pretext of the principle of the secrecy of investigations, not only is the lawyer’s intervention delayed, but his role and functions are also weakened. this article focuses on the framework of the lawyer’s intervention in the preliminary phase of criminal proceedings in three maghreb countries: morocco, algeria, and tunisia. the choice of these three procedures is not accidental. all three countries adopt procedures inspired by french criminal procedure, which draws their main choices from inquisitorial traditions. thus, during the preliminary phase, which is characterised by secrecy, the central role belongs to the judicial authorities, while the defence lawyer is confined to the role of a passive spectator. the first part of this article gives a concise overview of the inquisitorial system applied in the pre-trial phase. indeed, the inquisitorial features of the preliminary investigation, especially the secrecy and non-adversarial nature, are attenuated by procedural amendments and the running of the judicial time. however, the intervention of other procedural elements reinforces the impact of inquisitorial on the judicial process. in the second part, the article highlights the decisive impact of the preliminary investigation on the outcome of the criminal trial. the third part of this contribution briefly explains the role attributed to the defence lawyer during police investigations, the timing and framework of his intervention, and how moroccan and algerian criminal procedures confine him to a passive role, in contrast to the tunisian criminal procedure, which adopts ambitious choices in this framework. while the right to legal counsel is a condition for a fair trial, the fourth part explores, in-depth, the legal and practical basis of this right and illustrates how the widening of the scope of the lawyer’s intervention will have a positive impact on the application of fundamental rights and the consecration of procedural fairness. while the right to legal advice is not absolute, temporary derogation from this right, which remains strictly exceptional, will be the subject of the final part. 2. the inquisitorial nature as a characteristic feature of the preliminary investigation in a classical sense, the notion of inquisitorial indicates the character of a procedure in which all initiative, concerning the direction of the trial or the search for evidence, belongs to the judge (cornu, 2022, pp. 1185-1186). historically, the inquisitorial procedure appeared quite late, at the end of the middle ages, and succeeded the accusatorial 4 for the eminent french criminal lawyer faustin hélie (1866, p. 384):” the first corollary of the right of defence is that the accused be assisted by counsel”. 5 especially president guillaume de lamoignon (summers, 2007, p. 74). anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 49 procedure almost everywhere.6 in fact, the centralisation of state power, the absence of an effective public prosecuting and investigating authority, and the excessive respect for individual rights, were the main shortcomings of the accusatorial system, which led to the birth of the inquisitorial system. the inquisitorial procedure seeks, above all, efficiency in protecting society (merle & vitu, 1975, p. 169). it is conducted by specialised public authorities, which have a much more active role in the conduct of the trial and the search for the evidence. furthermore, in contrast to the fundamental legal features of the adversarial procedure,7 the inquisitorial procedure is based on secrecy “in almost all its course, especially in the important phases” (bouloc, et al., 2020, p. 58). the secrecy of the proceedings is absolute (besson, 1959, p. 241), even concerning the accused. in this respect, publicity may pose a threat to the efficiency and celerity of the proceedings. furthermore, this procedure is essentially non-adversarial. the accused is confined to a passive role. he cannot participate in investigative acts. finally, the inquisitorial procedure is entirely written. all procedural acts are recorded in minutes and added to the case file, to be forwarded to the trial judge (garraud, 1912, p. 745). however, these procedural changes have not made the inquisitorial system immune from criticism. the rights of the defence are sacrificed for the sake of the efficiency of investigations (ayat, 1991b, p. 11). the principle of the secrecy of the procedure places the accused in ignorance of the charges brought (merle & vitu, 1975, p. 169). similarly, the investigating authorities often do not enjoy independence from the power of the executive. therefore, the drafters of the procedures have chosen to mitigate the inquisitorial character by adopting a mixed procedure, which combines the inquisitorial and accusatory tracts. the french code of criminal procedure promulgated in 1808 is the leading example of this penal system before it was reproduced by the 1958 code of criminal procedure, with some changes. moreover, the similarity of the political challenges encountered by the maghreb countries with those experienced in france at the end of the second world war (machichi, 1981, p. 32) and the need to preserve the continuity of the state after independence (mahiou, 2012) led the drafters of maghrebian criminal procedures8 to inspire their main features from the french criminal system.9 on the other hand, the influence of french legal thought 6 the adversarial procedure is the oldest, based on private accusation and extensive participation of the individual in the proceedings (bouloc, et al., 2020, p. 57). 7 the fundamental characteristics of adversarial proceedings are: contradictory (the accused and his opponent discuss the case on an equal basis in the presence of an impartial judge), public (the trial is conducted in the presence and under the control of the people) and oral (the proceedings are not in writing). 8 ordinance no. 66-155 of 8 june 1966 on the algerian code of criminal procedure. law n°68-23 of 24 july 1968 established the tunisian code of criminal procedure. dahir n° 1-58-261 of first chaabane 1378 (10 february 1959) on the moroccan code of criminal procedure, which has undergone several modifications, the most important of which is that established in 2002 (law n°01-22 promulgated by dahir n°1-02-255 of 03 october 2002). 9 the adoption of french criminal procedure by the maghreb countries has not been immune from criticism. further, as khalfoune (2015, p. 411) notes, “the possibility of extrapolating from a body of rules, legal promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 50 and the high crime rate led the maghreb countries to continue to draw their laws from the former colonial power, even when they claimed to draft a new law (mahiou, 1984, p. 133) or amendment (zirari devif, 1989, pp. 262-265).10 in this context, the criminal trial in the maghreb countries is divided into two cardinal stages. the first is a phase of establishing the facts and seeking evidence. it is divided into two stages: a preliminary investigation carried out by the judicial police under the direction of the public prosecutor and a preparatory investigation, under the responsibility of the examining magistrate, to deepen the police investigations.11 both stages are marked by their inquisitorial character, even if the degree differs from one phase to another.12 indeed, secrecy remains the characteristic feature of the preliminary phase.13 several concerns justify it. on the one hand, it aims to guarantee the effectiveness of investigations by prohibiting those involved in the procedure (judicial police officers, public prosecutors, and investigating judges…)14 from revealing information about the procedure’s progress. on the other hand, by prohibiting the publication of the acts of the procedure by the press or any other means of communication, secrecy aims to protect the presumption of innocence and “to avoid pressure from public opinion on the judge, who must be independent and free” (merle & vitu, 1975, p. 326). however, criticism of the effectiveness of the principle of secrecy and doubts about its ability to preserve the presumption of innocence has grown.15 additionally, the increasing mediatisation of society and the rise of the right to information lead to doubts about the usefulness and legitimacy of the principle of secrecy and the possibilities of concepts and theories, produced by a context and a legal tradition whose formation is underpinned by a historical process specific to france, to another recent, different context, which has not undergone the same developments”. see also: (ayat, 1991a, p. 44) 10 it should be noted that the european court of human rights indirectly impacts maghrebian criminal proceedings. several modifications to the latter procedures are merely amendments to french criminal procedure in applying european case law. 11 the preparatory investigation is conducted by a professional judge “judge of investigation”, in cases very limited by the criminal procedure. see: article 66 of the algerian code of criminal procedure, article 83 of the moroccan code of criminal procedure and article 47 of the tunisian code of criminal procedure. 12 the inquisitorial nature of the preparatory investigation is tempered somewhat by the lawyer’s presence during the interrogation of the accused, the possibility of his intervention, and access to the case file. see: article 139 of the moroccan code of criminal procedure and articles 100-105 of the algerian code of criminal procedure. 13 it should be noted that article 15 of the moroccan code of criminal procedure and article 11 of the algerian code of criminal procedure, which establish the principle of secrecy of the preliminary investigation, are only the translation of article 11 of the french code of criminal procedure, which is still in force. for more on the principle of secrecy, see: (naut, 1996) and (lavielle & lemonnier, 2009). 14 the accused, the civil party, the witness, and journalists are not concerned by secrecy. in contrast, the defence lawyer is bound by professional secrecy. 15 because of the absence of a sanction in case of violation, the principle of secrecy in the maghreb countries is not often respected. media interference in criminal cases is accentuated, especially with the advent of social networks. anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 51 reconciling these different legal centres (ambroise-castérot & combeau, 2014). certainly, the principle of secrecy loses its power as procedural time evolves and the proceedings progress. hence, the second stage of the trial, which is the trial phase, becomes mainly adversarial. nevertheless, its influence remains limited because of the decisive impact of the preliminary investigation. 3. the decisive impact of the preliminary investigation on the criminal trial as mentioned earlier, maghrebian criminal procedures are based on a hybrid criminal system,16 which essentially remains with a solid inquisitorial trait.17 indeed, there is no separation between the preliminary investigation and the criminal trial, considered to have started as soon as the police investigate the case. from this perspective, the preliminary investigation phase is crucial in preparing for the criminal trial. it often determines the trial’s outcome, leaving traces that cannot be removed. thus, even in particularly complex cases, police custody remains the essential stage in the constitution of the case file. additionally, at this stage of the proceedings, the accused is often in a particularly vulnerable situation. this effect is intensified by the fact that criminal proceedings are becoming increasingly complex, particularly concerning the procedures for gathering and using evidence.18 furthermore, in a moroccan criminal procedure where the rate of criminal cases submitted to the preparatory investigation does not exceed 5.68%,19 the preliminary investigation retains its decisive importance. thus, the preparatory investigation phase is losing more importance to the police investigation. with the entry into force of the draft moroccan criminal procedure, it will be optional for all offences, even for the most severe crimes.20 this amendment can only intensify the force of the minutes drawn up during the preliminary investigation by the judicial police (ayat, 2015, p. 1). in fact, the preliminary investigation phase, in morocco as in tunisia, takes its decisive importance to the probative value of the minutes (jaouhar, 2005, p. 225). thus, the procedure for investigating offences is the responsibility of the public authorities and is carried out in secret. therefore, all procedural acts are recorded in minutes to which 16 for merle and vitu (1975, p. 177): “there is not, strictly speaking, a hybrid system, the main features of which could be defined without error, as could be done for the accusatory or inquisitorial procedure; there are mixed systems, the content of which varies according to the country and the period”. 17 as ogg (2012, p. 230) explains, no modern criminal justice system operates in full compliance with either the traditional adversarial or inquisitorial models. each system retains the characteristics of both, but one prevails over the other. 18 salduz v. turkey, app no 36391/02 (ecthr, 8 february 1996) para 54. 19 in 2020, only 26360 of the total 2780903 criminal cases were submitted to preparatory investigation. see: (presidency of the public ministry of morocco, 2020, p. 82) 20 article 83 of the project of the moroccan criminal procedure code. this text is established following a recommendation (n°85) of the high instance of dialogue on the reform of the moroccan judicial system (2013, p. 75). promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 52 the criminal procedure gives evidential value.21 during the trial hearing following the preliminary investigation, it is difficult for the defence lawyer to contradict the statements made during the interrogation (cherni & petit, 2014, pp. 40-41), which are transcribed in minutes,22 signed not only by the police officers but also by the persons questioned (bihi, 2004, p. 73). similarly, the principle of secrecy of the preliminary investigation veils the circumstances in which these minutes were drawn up, which makes it impossible for the defence lawyer to prove the contrary (machichi, 2012, p. 221). moreover, maghrebian procedures do not provide for the nullity of the minutes in case of non-respect of the rights of the defence during the police phase.23 even the failure of the accused to sign at a minute has no impact on its evidential value.24 for the national council for human rights of morocco (nchr) (2004, p. 61), “this probative value is incompatible with the presumption of innocence and limits the authority of the judge in the control and appreciation of the means of proof”. as the working group on arbitrary detention (wgad) (2014, pp. 17-18) notes, the evidential value of the minutes reverses the burden of proof, forcing the accused to prove his innocence, which creates conditions that favor torture and ill-treatment of suspects. paradoxically, the various criminal procedure changes only reinforce the strength of the case file, consisting mainly of minutes prepared during the police investigation. consequently, the criminal trial is merely a public hearing of the facts and evidence gathered in the case file (mckillop, 1997, p. 565), which is the “backbone” of the trial (damaska, 1974, p. 507). all the investigations carried out during the pre-trial proceedings are recorded in minutes and compiled in an official file the public prosecutor keeps. this file, containing all the investigation facts, is handed over to the trial judge, who bases his decisions largely on the written evidence gathered by the judicial authorities (damaska, 1974, p. 506). indeed, the possibility for the judge to access the file to base his decision on one of its constituent elements may weaken the principles of the adversarial system.25 in other words, the evidence collected during the police investigation generally determines 21 in morocco, the minutes of crimes are only valid as simple information (article 291 of the moroccan code of criminal procedure). for misdemeanours and contraventions, which constitute almost all offences committed in morocco (approximately 95%) and for which the punishment can be up to 5 years imprisonment, the minutes are valid until proven contrary by all means (article 291 of the moroccan code of criminal procedure). similarly, article 154 of the tunisian code of criminal procedure stipulates that: “the minutes drawn up by the judicial police officers are valid until proven otherwise. this evidence must be provided in writing or by witnesses”. on the other hand, in algerian law, the minutes recording crimes and misdemeanours are only valid as simple information (article 215 of the algerian code of criminal procedure). 22 several working groups (2013, pp. 18-19) expressed concern about the considerable importance attached to confessions recorded in the minutes of the judicial police in the absence of a lawyer and used as evidence in trials. see also: (human rights council, 2014, pp. 8-9-10) 23 in contrast, they have provided for the nullity of minutes that do not respect the procedures for searching a domicile. 24 arrêt de la cour suprême marocaine n° 1042, 12/07/1973, affaire n°46413. 25 the judge’s decision is based on evidence obtained secretly and unilaterally by the judicial authorities in the pre-trial phase. see: (illuminati, 2009, p. 309) anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 53 the framework in which the crime will be examined,26 which leads to the principles of orality, adversarial process and publicity, as applied to the criminal hearing, being stripped of their substance. in many cases, the trial hearing does not add much to what was achieved during the investigation phase. the results of the police investigation often remain irrefutable during the trial hearing.27 the latter phase only serves as a check on the evidence gathered in the pre-trial phase and an official opportunity to review the minutes drawn up in the investigation phase (li, 2008, pp. 13-14). therefore, regardless of the importance of the trial hearing, everything happens during the pre-trial phase (el-shehhat, 2000, p. 383), in which the defence remains outside the procedural game. faced with this judicial process, the criminal trial judge is transformed, as it were, into a technical expert on the facts and law (damaska, 1974, pp. 486-528). while the defence remains confined to its passive role, trying to demolish the elements of the accusation on the sole basis of its oratorical abilities and to convince a judge with a preconceived conviction formed by the file (zappala, 1997, p. 112). 4. the passive role of the lawyer in the preliminary investigation maghrebian criminal procedures draw their main guidelines from the inquisitorial system. in this respect, the preliminary investigation phase remains crucial and has a decisive effect on the trial’s outcome. the procedural authorities play an active role in the investigations. in contrast, the defence is confined to a passive role, a mere spectator of the proceedings, or absent from this strategic trial stage.28 in this context, the assistance of the lawyer in morocco consists only of a simple interview with the suspect for a period not exceeding 30 min. the lawyer contacts his client under the supervision of the judicial police officer and in circumstances that guarantee confidentiality.29 however, the right of access to a lawyer can only be granted to the person in police custody, only in the event of an extension and with the authorisation of the public prosecutor.30 the algerian code of criminal procedure has not departed from the latest 26 ibrahim and others v. uk app no 50541/08, 50571/08, 50573/08 and 40351/09 (ecthr, 13.9.2016) para 253; salduz v. turkey, para 54. 27 under the past italian criminal system the same system is still in force in morocco, algeria and tunisia the preliminary phase of the trial represented the essential foundation of the criminal procedure. in contrast, the trial phase was limited to playing the role of a formal stage at the end of the first stage. see: (boari, 1997, p. 118) 28 the police are still reluctant to accept the lawyer’s assistance during interrogations. they fear they will be “outwitted” by professional lawyers and will face increased difficulties in encouraging the accused to make a statement or a confession. see: (trechsel & summers, 2006, p. 289). 29 article 66 of the moroccan code of criminal procedure. 30 participants in the parliamentary discussions on article 66 called for the presence of a lawyer from the first hour of detention to guarantee the rights of the person prosecuted. however, the minister of justice invoked the principle of secrecy and that the investigation’s effectiveness requires excluding all external influences. see: (moroccan justice committee, 2002, pp. 204-205) promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 54 conception of the right of access to a lawyer. according to the amendment approved by ordinance no. 15–02, the judicial police officer must make a means of communication considering the secrecy of the investigation available to an arrested person to enable him to contact his lawyer.31 additionally, the same ordinance authorises the detainee to receive a visit from his lawyer in the event of prolonged detention32 for a period not exceeding 30 min.33 the consultation with the lawyer occurs under the supervision of a judicial police officer (human rights committee, 2018, p. 2). in contrast, the criminal procedures of the latter two countries have allowed the prosecution34 to delay the accused’s right to access a lawyer. this delay must be exceptional and for a period not exceeding 12 h from the first extension of police custody.35 however, the tunisian procedure has only set restrictions on the right of access to a lawyer in terrorism cases and for a period not exceeding 48 h from the date of detention.36 as a result, moroccan and algerian criminal procedures have made the lawyer a passive observer of his client during interrogation by the judicial police. the defence lawyer cannot participate in the various operations carried out by the judicial police, in particular, interrogations and confrontations (essaid, 2008, p. 71). he is deprived of any possibility to intervene during the police investigation and assist the accused during his interrogation. thus, the lawyer cannot ask the simplest questions or make observations. moreover, the defence is not allowed to take a copy of the file during the police investigation phase, nor to obtain minimal information guaranteeing him the possibility to communicate with the accused, manage and organise his defence effectively, and assess and control the legitimacy of the detention.37 however, the three maghrebian criminal proceedings have not organised any evidence-gathering procedures that a defence lawyer can conduct. they do not grant him any right to request searches or investigations that could have a specific impact on the course of the case, which could prejudice the outcome of the investigations and the course of the trial as a whole. the latest provisions regulating a lawyer’s right to access have not remained immune from criticism from national or international bodies. the human rights committee (2004, pp. 4-5) has repeatedly stated the incompatibility of the latest provisions with article 14 of the international covenant on civil and political rights (iccpr) and all other covenant provisions. for the wgad (2014, p. 7), these legal provisions, which restrict the exercise of an essential guarantee such as the right to prompt access to a lawyer, considerably 31 ordinance no. 15-02 amending and supplementing the algerian criminal procedure code, article 1, para1. 32 in fact, the renewal of police custody is systematic. see: (alkarama fondation, 2017, p. 11) 33 ordinance no. 15-02 amending and supplementing the algerian criminal procedure code, article 1, para6. 34 in these two maghreb countries, the public prosecutor is the defendant’s opponent and the judicial authority in charge of controlling the infringement of freedom. 35 article 66 of the moroccan code of criminal procedure. 36 article 13 of the tunisian criminal procedure code. 37 even the draft of the moroccan code of criminal procedure did not bring anything new in this context. anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 55 increase the risk of torture and ill-treatment. according to the nchr of morocco (2014, p. 7), the provisions of article 66 on access to a lawyer constitute a restrictive interpretation of the third paragraph38 of article 23 of the moroccan constitution of 2011. thus, as illustrated by a moroccan academic (el hila, 2012, p. 26), the right to the assistance of a lawyer established by article 66 is “a hundred miles away from true legal assistance since it is limited to a dialogue between counsel and his client”. despite this limited approach to the right to legal assistance, requests to contact a lawyer in morocco are rare.39 for example, the statistics collected by presidency of the public ministry of morocco for 2018 (p. 196) do not exceed 155 requests, which decreased to 140 in 2019 (p. 259) before they increased to 224 requests in 2020 (p. 224). reading the latter figures compared with the number of persons placed in police custody, which exceeded 408,994 persons, leads to conclude that the number of requests to contact a lawyer during police custody is meagre in morocco (présidence du ministère public du maroc, 2018, pp. 195-196). these rare requests for access to a lawyer are sometimes difficult to implement. indeed, the lack of a culture of defence rights among justice professionals40 and the imperfection of the necessary infrastructure in maghrebian prisons41 hamper the lawyer’s work. in tunisia, some justice professionals consider the defence lawyer an “enemy”.42 sometimes, public authorities and the media associate lawyers with the interests of their clients (human rights council (2015, pp. 14-18-19). the lawyer’s contact with his client depends on his personal relationship with the judicial police officer.43 additionally, the shortcomings of the legal aid systems in the maghreb countries negatively affect any right to legal assistance.44 the lack of financial 38 the third paragraph of article 23 of the constitution provides that every person “shall be provided with legal assistance at the earliest possible time”. 39 the requests are made by the suspects or their lawyers. 40 the working group (2014, p. 45) noted that:” in its meetings with police officers, some were reluctant to inform detainees of their right to have access to a lawyer in criminal cases. furthermore, testimonies from lawyers indicate that, in practice, they are often denied access to their clients within the time limits set by law”. see also: (human rights council, 2013, p. 8) 41 during her mission to tunisia, the special rapporteur on the independence of judges and lawyers (2015, pp. 14-18-19) found that the lack of the necessary infrastructure in the maghrebian prisons and overcrowding hindered the lawyer’s work and forced him to wait hours to meet his client. see also: (fédération internationale des ligues des droits de l’homme (fidh), 2014, p. 12) 42 the special rapporteur (2015, pp. 14-18-19) was informed that there are judges who do not understand or believe in the right to defence. in some criminal cases, the defence lawyer is considered an “enemy” by the judge and the prosecutor. 43 in tunisia, the right of the lawyer to contact his client sometimes depends on “his personal relations with certain police officers or his reputation”. see : (avocat sans frontières (asf), la ligue tunisienne des droits de l’homme (ltdh), ordre national des avocats de tunisie (onat), 2014, pp. 33-34) 44 during her mission in tunisia, the special rapporteur (2015, p. 18) heard complaints that “court-appointed defence counsel is mandatory only in certain cases, and are paid a minimal retainer fee, considered derisory by lawyers, currently fixed by the state at 180 dinars (approximately $90). moreover, such work is allocated to junior lawyers with little or no experience, or to interns, who work unsupervised”. see also : (avocats sans frontières et mst sida section tunis, 2014, p. 8) promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 56 resources and the poor experience of the appointed lawyers hinder any enforcement of the right to effective legal assistance.45 from the above, it is clear that criminal procedures in the maghreb adopt a very narrow approach to the rights of the defence. they link the fragile state of the accused, which requires access to a lawyer, to the existence of a measure that infringes liberty. in the same way, the lawyer remains far from playing the role of active and effective defence and confines himself to the role of a passive defence. 5. towards a strengthening of the lawyer’s role in the preliminary investigation 5.1. legal and practical basis for the lawyer’s assistance the right of any person suspected or accused of a criminal offence to be effectively defended by a lawyer, if necessary appointed by the court, is a fundamental feature of a fair trial46 and an essential manifestation of the principle of equality of arms.47 the right to “legal assistance” is provided in several binding international and regional instruments. as a “true fair trial charter” (ayat, 2002, p. 239), the iccpr48 remains at the forefront of international human rights instruments that enshrine the right to “legal assistance”.49 established by the united nations in 1990, the basic principles on the role of lawyers (bprl) provide for the right of any person arrested or detained or imprisoned to have access to a lawyer, to meet and consult with him without delay, in total discretion, without censorship or interception, and to have adequate time and facilities for this purpose.50 at the regional level, the african charter on human and peoples’ rights (banjul charter)51 explicitly provides the right to be “assisted by counsel” of one’s choice.52 similarly, the guidelines and principles on the right to a fair trial and legal assistance in africa consider the right to consult a lawyer at all stages of the proceedings as one of the essential elements of the right to a fair hearing.53 accordingly, the accused person has the right to have “the assistance of a lawyer” of his choice at all stages of criminal proceedings as “the best means of defending against violations of his human rights and 45 for chaari and ghachen (2015, p. 24), “the court-appointed defence counsel are very often inexperienced trainees and not trained enough to handle complex and sensitive criminal cases”. 46 poitrimol v. france app no 14032/88 (ecthr, 23.11.1993) para 34. 47 see: imbrioscia v switzerland app no 13972/88 (ecthr, 24.11.1993) para 38; salduz v. turkey, para 55; pishchalnikov v. russia app no 7025/04, (ecthr, 24.9.2009) para 55; salduz v. turkey, para 55. 48 ratified by all maghreb countries: algeria 12 september 1989, morocco 3 may 1979, and tunisia 18 march 1969. 49 article 14/3/d of iccpr. 50 article 8-7 of bprl. 51 ratified by all african countries (algeria 1 march 1987, tunisia 16 march 1983) except morocco. 52 article 7/1/c of banjul charter. 53 principles and guidelines on the right to a fair trial and legal assistance in africa, 2003, african commission on human and peoples’ rights, para, (2/f). anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 57 fundamental freedoms”.54 additionally, the guidelines on the conditions of arrest, police custody and pre-trial detention in africa (luanda guidelines) have enshrined the right of the person under arrest to meet, without delay, with a lawyer of her choice.55 on a national scale, to reflect their commitment to international instruments, the maghreb countries have chosen the constitutional text to stipulate the right to legal assistance. in this regard, the moroccan constitution of 2011 provides for the right to “the assistance of a lawyer” in case of detention and not immediately. as well, article 45 of the algerian constitution of 2020 only foresees the right of “the person in custody to contact his lawyer”. similarly, article 33 of the tunisian constitution of 2022 enshrines, in a general way, the constitutionality of “the guarantees of the defence during the prosecution and the trial”, contrary to the constitution of 2015, which insists on the “immediacy” of the right of “the arrested or detained person” to be represented by a lawyer (article 27-29).56 in practical terms, during the police investigation, persons arrested or detained are the most vulnerable. for nchr of morocco (2014, p. 6), the risk of torture and other cruel, inhuman or degrading treatment is particularly high during the first few hours after arrest and detention.57 thus, police officers are under considerable pressure to obtain information from arrested persons. additionally, in maghrebian criminal procedures that place a premium on confessions, “persons arrested by the police are at increased risk of being subjected to torture and other ill-treatment. police techniques based on confessions pose a greater risk to detainees than those based on evidence gathered through a careful process of documented information gathering. indeed, seeking confessions indirectly encourages illegal practices and contributes to a culture of abuse within the police” (association pour la prévention de la torture, 2013, p. 9). therefore, the right to immediate legal assistance is an essential counterbalance to the suspect’s vulnerability in police custody and is a preventive safeguard against the high risk of ill-treatment during the first hours of detention (committee against torture, 2008, p. 4). furthermore, the lawyer’s presence offers essential protection against the coercion and abuse to which he may be subjected during the pre-trial phase58 54 principles and guidelines on the right to a fair trial and legal assistance in africa, 2003, african commission on human and peoples’ rights, para, (n/2/a-b-c). 55 the luanda guidelines. 56 this constitutional amendment can be seen as a backward step on the advanced provisions of the previous constitution, which may have a decisive impact on the right to legal counsel in the subsequent amendment of the tunisian criminal procedure. 57 see also : (association pour la prévention de la torture (apt) et centre d’études en droits humains et démocratie (cedhd), 2020, p. 64) 58 for the special rapporteur on the independence of judges and lawyers: “the presence of a lawyer in police interrogations is desirable as an important guarantee of the protection of the rights of the accused. the absence of legal counsel can lead to abuses, especially in emergencies where more serious criminal acts are involved”. promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 58 and during interrogation and confrontation by the judicial police.59 as a study by the association for the prevention of torture (2016, pp. 19-20) covering 16 countries demonstrates, the most effective torture prevention measure is to ensure that all persons have adequate access to all procedural safeguards, including the right to legal counsel, from the first hours of deprivation of liberty. thus, the assistance of a lawyer indirectly protects judicial police officers from unfounded allegations of torture and ill-treatment (general assembly, 2016, p. 18). in addition, it contributes to eliminating suspicion of using pressure and coercion by police authorities to obtain confessions (hodgson & rich, 1995, p. 319). for the commissioner for human rights alvaro gil-robles (2006, p. 18), “the experience of a large number of european states shows that police officer, initially rather reluctant to have lawyers present, become their strongest supporters once the experiment has begun. indeed, once a lawyer is present during interrogations, police officers no longer have to fear being unjustly accused of violent and illegal behaviour, as the lawyer will always be able to confirm that any accusations made by a dishonest client are unfounded”. moreover, the lawyer can also serve as a “guardian of due process”.60 his presence guarantees that the suspect’s rights are respected during the police interrogation (billing, 2016, p. 69). as an essential resilience mechanism against abusive and coercive resistance to the production of evidence, access to a lawyer helps to ensure that the right of a suspect or accused person not to incriminate himself is respected. in addition, the presence of a lawyer in police custody helps to support and enhance the effectiveness of investigations (pettiti, 1998, p. 135). while the lawyer’s absence may cause the suspect to hide behind the right to remain silent, the lawyer’s presence prepares the client for the police hearing, encouraging him to make statements and thus avoid further investigations (vandermeersch & nederlandt, 2014, p. 38). 5.2. scope of the lawyer’s assistance in light of the above, it is undeniable that the assistance of a lawyer is not a symbolic right. for this reason, any compatibility of maghrebian criminal procedures with international and regional standards requires the enshrinement of the person’s right to the assistance of a lawyer61 from the moment he is suspected or accused of an offence,62 59 the luanda guidelines, 8/d/i; see also: (touhami, 2005) 60 ensslin, baader and raspe v. germany app no 7572/76, 7586/76 and 7587/76 (ecthr, 8.7.1978) para 20. 61 for terminological precision, the nchr of morocco (2014, p. 8) recommends that the term “communication” be replaced by others such as “assistance”, “interview”, or “consultation”, which will allow a better account to be taken of the new roles to be played by the defence during police custody. 62 résolution sur les lignes directrices et mesures d’interdiction et de prévention de la torture et des peines ou traitements cruels, inhumains ou dégradants en afrique (les lignes directrices de robben island) 2008, publiée par la commission africaine des droits de l’homme et des peuples. anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 59 during police interrogations and confrontations, and for an unlimited time.63 thus, mere suspicion of an interrogated person is sufficient to require the effective assistance of a lawyer without the need to verify whether he is in custody or at liberty. in other words, procedural fairness requires that any person under criminal suspicion or charge must be informed immediately of his right to legal assistance from a lawyer of his choosing or free legal assistance provided by the state before the police or other law enforcement or judicial authority proceeds with interrogation, and after that throughout the criminal justice process.64 in this context, the committee against torture (2011, pp. 3-4) has recommended that morocco allow access to a lawyer from the beginning of police custody without prior authorisation. in the same vein, aiming to strengthen the presence of the defence at crucial moments in the procedure, the nhrc in algeria (2019, p. 188) and morocco (2014, p. 7) have recommended that all persons should be able to benefit immediately from the assistance of a lawyer as soon as they are placed in police custody, as well as during their hearings and confrontations, without any prior authorisation. for a moroccan academic (2012, p. 27), article 23 of the constitution, which enshrines the constitutionality of the assistance of a lawyer, “requires an appropriate legal translation, which would give the right to legal assistance its true meaning and scope, in view of international requirements on the rights of the defence”. furthermore, “legal assistance” requires the lawyer’s assistance, from the time of arrest and during interrogation by the judicial police (el hila, 2012, p. 27), “by all appropriate means and legal measures to safeguard the interests”65 of the suspected or accused persons. in other words, the effective assistance of the lawyer must enable the accused to benefit from the full range of services specifically related to legal assistance. it includes the possibility of free and confidential communication between the lawyer and his client on all matters relating to his defence and his legitimate rights before the start of the interrogation. the lawyer’s presence during the pre-trial interrogation and all investigation and evidence-gathering acts remain essential.66 however, the mere passive presence of a lawyer, without the possibility of intervening to guarantee the rights of the accused, remains insufficient (jianping & ping, 2015, p. 243). thus, any concrete and effective defence require: time to organise the defence, discussion of the case, collection of evidence favourable to the accused, 63 the working group (2014, pp. 16-17) “guaranteeing access to a lawyer of the suspect’s own choosing from the moment of arrest, without the presence of an investigator and without the need for authorisation by the prosecutor. this access should be guaranteed by law and any official who refuses to grant access to a lawyer should be sanctioned”. similarly, the special rapporteur (2015, p. 18) reiterates that the absence of effective legal assistance at all stages of criminal proceedings is contrary to article 14, paragraph 3/d, of iccpr. 64 the luanda guidelines, 9/a/i-ii. 65 article 13/b of bprl. 66 panovits v cyprus app no 4268/04, (ecthr, 11.3.2009) para 67; at v. luxemburg app no 30460/13, (ecthr, 9.4.2015) para 71 72. promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 60 preparation of the interrogation, accompanist an accused in distress and verification the conditions of detention (harris, et al., 2009, p. 474). in this respect, the nhrc in morocco (2014, p. 7) and algeria (2019, p. 188) recommend that the lawyer be allowed to take notes and ask questions at the end of each hearing or confrontation and that any opposition by the judicial police officer to the lawyer’s questions be recorded in the minutes. in addition, the lawyer may mention rights violations in the hearing minutes. finally, to check the legitimacy of the arrest and detention of his client, the lawyer may have access to the necessary documents relating to his client’s case.67 in this context, the tunisian criminal procedure adopts a somewhat advanced approach. whether in police custody68 or not,69 every suspect has the right to choose a lawyer to accompany him during his interrogation or confrontation.70 similarly, the lawyer plays an active role during the police investigation phase; he can visit his detained client, meet him in private and renew the interview in case of prolongation of the detention.71 the lawyer may also assist the accused in police custody during his hearing or confrontation. it is immediately notified in writing by the criminal investigation police commissioner of the date of his client’s audition and the criminal facts with which he is charged.72 the audition or confrontation can only occur in the lawyer’s presence unless the accused waives this right.73 in addition, the detainee’s lawyer has the right to access the case file one hour before the questioning or confrontation, with the possibility of taking notes.74 once the interrogation or confrontation of the suspect is over, the defence lawyer can also ask questions, with the possibility of requesting that written notes on the audition and confrontation procedure be added to the minutes.75 generally, any denial of the right to counsel, whether before or after questioning, may affect the “fairness of the proceedings”.76 similarly, the use, directly or indirectly, of statements made in the absence of a lawyer to establish a conviction may constitute an irreparable violation of the rights of the defence and, therefore, an infringement of the right to legal assistance.77 nevertheless, the right to legal assistance, although extremely important, is not absolute, as there are important but exceptional limitations. 67 luanda guidelines, 8/d/iv ; les lignes directrices de robben island, para, 31. 68 article 13bis of the tunisian criminal procedure code. 69 article 13/7 of the tunisian criminal procedure code. 70 according to the hrc (2019, p. 26), all these amendments constitute a fundamental guarantee for the prevention of torture. 71 the interview will occur once during the period of custody and for half an hour, with the possibility of renewing it if the detention is prolonged, see: article 13/4 of the tunisian criminal procedure code. 72 article 13/3 of the tunisian criminal procedure code. 73 article 13/3 of the tunisian criminal procedure code. 74 for the suspect in custody, see: article 13/5 of the tunisian criminal procedure code. for the free suspect, see: article 13/7 of the tunisian criminal procedure code. 75 article 13/6 of the tunisian criminal procedure code. 76 salduz v. turkey, para 50-58-62. 77 as noted by the special rapporteur on torture (2002, p. 10): “no statement of confession made by a person deprived of liberty, other than one made in presence of a judge or a lawyer, should have a probative value in court, except as evidence against those who are accused of having obtained the confession by anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 61 6. temporary derogations from the right to legal assistance while the right to an effective defence by a lawyer is a fundamental element of the right to a fair trial, it is not absolute and can be restricted where there are sufficient grounds. indeed, because of the fundamental nature of this right and given the paramount importance in a democratic society of protecting the right of the accused to a fair trial, any measure restricting the rights of the defence must be necessary and strictly circumscribed by national law. thus, it must be interpreted restrictively, based on “exceptional circumstances”,78 such as an urgent need to avoid severe prejudicial consequences for a person's life, liberty or physical integrity (klip, 2019, p. 9). note that any restrictions on the right to legal assistance must be exceptional, temporary, based on an individual assessment of the case’s particular circumstances justifying any arrest and “not go beyond those strictly required by the exigencies of the actual situation” (human rights committee, 2007, p. 2). on the other hand, derogations from the right to counsel can only be authorised by the judicial authority or any competent authority,79 provided that the accused retains the right to a judicial remedy against the decision to restrict. as such, the court had first to examine the availability of the compelling reason to suspend the right to counsel and secondly assess the prejudice caused by the restriction and the implications of the restriction for the overall fairness of the trial.80 it should be stressed that even with the reasons mentioned above, which exceptionally justify any restriction of the right to legal counsel, such a limitation should not prejudice the rights of the accused. in this case, the difficulties encountered by the defence due to a restriction of its rights must be adequately compensated before the judicial authority.81 in parallel to the above, and after having been initially informed of her rights, the accused may explicitly waive legal representation. in this context, he must be given special protection in accordance with the “conscious and clear” waiver criterion.82 the unlawful means”. thus, the special rapporteur (2013, pp. 18-19) recommends to the government that confessions of a person deprived of liberty, which is not made in the presence of a judge and with the assistance of a lawyer, should not be given any evidential value. in addition, “the prosecution has the burden of proof that the confession was obtained without coercion, intimidation or inducement”. see: the luanda guidelines, 9/d. 78 article 18/3, body of principles for the protection of all persons under any form of detention or imprisonment. 79 ibrahim and others v. uk, para 257. 80 ibid, para 257 – 258 and 260. 81 rowe and davis v. united kingdom app no 28901/95 (ecthr, 16.2.2000) para 61. 82 article 08 of the directive 2013/48/eu of the european parliament and of the council of 22 october 2013 on the right of access to a lawyer in criminal proceedings and in european arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. promoting the defence’s role in the preliminary investigation the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 62 waiver must be voluntary, conscious, intelligent and can in no way be presumed. thus, it should be recorded on an audio-visual medium or in writing and signed by the person deprived of liberty. more specifically, the waiver must be submitted to a strict legal framework and minimum guarantees proportionate to its gravity and importance.83 the accused must be given clear and sufficient information, either orally or in writing, in simple and understandable language, on the content of the right to legal counsel and the possible consequences of such a waiver (conseil national des droits de l’homme du maroc, 2014, p. 11). in this respect, it must be ensured that the person concerned has been effectively informed of his right to a lawyer and that he understands the consequences of waiving it to establish whether the waiver is well-informed, voluntary and unequivocal.84 in this case, he will not be compelled to answer questions or participate in interrogations and confrontations in the absence of her lawyer.85 ultimately, suspects and defendants should be informed of the possibility of withdrawing any waiver of the right to legal representation after each stage of the criminal proceedings. 7. conclusion as a crucial element of any fair trial, the assistance of a lawyer is one of the fundamental rights firmly established in international instruments. it is a right in itself and a guarantee for the respect of other rights. legal assistance is an essential instrument for ensuring the protection of the fundamental rights of persons accused of criminal offences and, therefore, a means to restore the necessary balance between the prosecution and the defence in conformity with the equality of arms. legal assistance from the lawyer is often crucial to ensure that the accused can participate effectively in the criminal justice process. it is an essential counterbalance to the suspect’s vulnerability, especially in the early hours of arrest and detention. similarly, the presence of a lawyer also serves as a deterrent and protection for law enforcement authorities against unfounded allegations of torture and ill-treatment or the use of coercion to extract confessions. to this effect, the harmonisation of maghrebian criminal procedures with international and regional standards requires the immediate assistance of the lawyer for any person under arrest or detention, especially in interrogations and confrontations carried out by the judicial police. similarly, in maghrebian criminal proceedings, where the police 83 “if the accused has been advised of his right to counsel, the mere fact that the accused responds to police questions does not constitute an implied waiver of that right”. see: pishchalnikov v. russia, para 77 – 80; sejdovic v. italy app no 56581/00 (ecthr, 1.3.2006) para 53; colozza v. italy app no 9024/80 (ecthr, 12.2.1985) para 28. 84 united nations principles and guidelines on access to legal aid in criminal justice systems, para 3-43/b. 85 principles and guidelines on the right to a fair trial and legal assistance in africa, 2003, african commission on human and peoples’ rights, para, m/2/f. anouar hatim; mohammed miloudi; najib el araj the age of human rights journal, 19 (december 2022) pp. 47-69 issn: 2340-9592 doi: 10.17561/tahrj.v19.7123 63 investigation phase represents the crucial stage of the trial, the lawyer must benefit from all the appropriate means and legal measures specifically linked to legal assistance to defend the interests of the accused. thus, he must assume his natural role as a controller of the legitimacy of the detention and the procedural acts carried out. furthermore, it is necessary to provide for the nullity of any procedural act that does not respect the rights of the defence and to establish a sanction against all agents of authority who improperly prevent an accused from having access to a lawyer. however, the tunisian criminal procedure remains among the maghrebian procedures that adopt an advanced approach to the right to legal assistance in police investigations. nevertheless, this latter approach may be threatened with the entry into force of the new constitution of 2022, which generally and ambiguously enshrines the constitutionality of defence guarantees. certainly, the consecration and implementation of the right to the assistance of a lawyer in the maghreb criminal justice environment present several significant challenges. therefore, consolidating the culture of defence rights among justice professionals in the maghreb countries remains very necessary. in this context, awareness-raising measures on the importance of the role of lawyers should be taken by the various actors concerned. similarly, the establishment in morocco and tunisia of national mechanisms for the prevention of torture (nmpt), which are responsible for controlling the implementation of fundamental safeguards, including the right to legal counsel, remains very important for examining the reality of the application of fundamental rights in detention and during the preliminary investigation and therefore contributes to the improvement of criminal law and the practice. references alkarama fondation (2017). soumission de la liste des questions dans le cadre de l'examen du quatrième rapport périodique de l’algérie par le comité des droits de l’homme. 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(1989). la formation du système pénal marocain. université de nice: thèse de doctorat en droit. received: 14 may 2022 accepted: 21 september 2022 promoting the defence’s role in the preliminary investigation, a challenge in maghrebian criminal abstract 1. introduction 2. the inquisitorial nature as a characteristic feature of the preliminary investigation 3. the decisive impact of the preliminary investigation on the criminal trial 4. the passive role of the lawyer in the preliminary investigation 5. towards a strengthening of the lawyer’s role in the preliminary investigation 5.1. legal and practical basis for the lawyer’s assistance 5.2. scope of the lawyer’s assistance 6. temporary derogations from the right to legal assistance 7. conclusion references overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 1 overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication ana garcía juanatey1, bettina steible2, ilaria de vita3 abstract: this paper aims to explore the role that human rights can play not only as legal instruments to achieve climate justice, but also as practical tools to improve communication of the climate emergency. we do this by explaining how different narratives, values and emotions affect the public’s perception of this vital issue. finally, we propose effective strategies to improve climate communication according to human rights principles and values. keywords: climate emergency, human rights, climate justice, climate communication. introduction while climate change4 is one of the greatest challenges of our time and will have devastating effects for human rights across the globe, a general lack of policy ambition persists across regions and countries. the latest report published in 2022 by the intergovernmental panel on climate change highlights that global warming is already an irreversible process, whose consequences will continue for millennia. at the same time, it advises that emission reduction policies implemented in the next five years, especially by the greatest polluters, will be crucial to mitigate its worst effects. however, despite the strength of the evidence and the magnitude of this challenge, there is a general lack of ambition in the responses of states and their populations. in the paris agreement, signed in 2015, state parties agreed to a global commitment to reduce greenhouse gas emissions to keep climate change within the threshold of 1.5 and 2 degrees; however, a close examination of the plans that state parties have presented forecast a rise of around 3 degrees in the next decades (rogelj et al., 2016). similarly, the emissions gap report published by the united nations environment programme (unep) in 2021 clearly shows that the lack of ambition of the national climate plans project a global warming of 2.7°c by the end of the century (unep, 2021). this scenario would be catastrophic for a large part of human settlements on the planet and will have devastating effects on the realisation of human rights, as well as on other forms of life in the planet. 1 lecturer at the cei international affairs, adjunct center to the universitat de barcelona, spain (ana.garcia@ceibcn.com). 2 lecturer at the universitat oberta de catalunya, barcelona, spain (bsteible@uoc.edu). 3 independent researcher, brussels, belgium (ilaria.devita@cevi.ngo). 4 while the term “climate change” refers to the phenomenon of changes in earth’s climate that can occur as a result of natural or human-induced causes, the term “climate emergency” will be used in this article as it emphasizes the urgent need for action to prevent or slow down climate change and prevent potentially irreversible environmental damage resulting from it (oxford language, 2019). overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 2 nevertheless, this lack of ambition is not only a policy problem, but also a societal matter. among the population of the global north, particularly in the eu, there is a persistent action gap vis-à-vis this emergency: despite widespread preoccupation with climate change, most people do not act accordingly in their daily lives. in the case of the eu, the majority of the population considers that climate change is a major challenge, and that ambitious action must be taken: according to the 2021 eurobarometer, 93% of eu citizens consider that climate change is a serious problem and 78% characterize it as “very serious”. nonetheless, this concern does not translate into relevant action, be it through a significant change in lifestyle habits or support for political options with sensible proposals in line with the best available scientific evidence. of course, the magnitude of the climate challenge is enormous: fighting climate change effectively implies the need to radically transform societies, which are largely dependent on hyper-consumption of energy, especially of fossil fuels. to face this emergency, habits closely associated with the western way of life require a profound reset, including a lesser use of private vehicles and airplanes, a drastic reduction in energy demands linked to homes, a more local diet, and a lower intake of animal products –all habits that are deeply rooted and difficult to change. faced with these obstacles, inertia prevails and translates into inaction. another main reason for the action gap is that climate communication has historically faced misinformation and delaying tactics. the scientific community’s consensus on human-caused climate change has been called into question by the fossil fuel industry and its supporters, raising doubts about the necessity of taking action (boykoff and farrell, 2020). this strategy has aimed to protect profits by undermining science credibility: delaying tactics cultivates the idea that immediate action will have a negative economic impact, and therefore builds on legitimate concerns and fears of the public (lamb et al., 2020). climate change action has indeed been intentionally opposed by a small number of companies in order to make short-term gains for a few prevail at the long-term expenses of all. as marquez (2019) explains, some companies’ activities have played an important role in altering the climate, which in turn, have an effect on the worldwide conditions for the enjoyment of human rights. social media also play a huge role in amplifying misinformation, hindering true information to prevail. without neglecting the above-mentioned challenges, this work is based on the premise that a communication problem has historically contributed to this action gap. in recent decades, a relevant body of academic literature has critically analyzed how to narrate the climate emergency, taking into account the discourses that emerge from the media, activists, academia, and citizens. so far, the dominant discourse has been based on science, focusing on the global nature of climate change, and using mainly scientific statistics and facts, which measure its impact on the earth’s systems. thus, this body of literature has drawn attention to some of the characteristics shared by most of climate change discourses: a gloomed narrative that seeks to mobilize people by appealing to the fear of a dystopian future on the one hand, and the attempt to convince the general population with data and evidence on the other. it has often been said that the inevitable catastrophist discourse on the impacts of climate change – fully justified, and in a way, ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 3 realistic, considering the existing predictions based on the best available scientific evidence – does not seem to be the most appropriate way to engage the general population in demanding more ambitious measures; indeed, it can lead to escapist behaviors, through which people prefer not to face information that is uncomfortable or that causes them concern. furthermore, it has been highlighted that data have prevailed over emotions in climate communication, thus facilitating the emotional disconnection of the public with this problem. therefore, there is considerable room for improving climate communication. in fact, to overcome these communication problems, several alternative paradigms have been proposed in recent years, based on an appropriate use of emotions, such as hope (gomez & coombes, 2019; fredrickson, 1998; salama & aboukoura, 2017; council of europe, 2017; eu fundamental rights agency, 2018) and an appeal to shared values (corner et al., 2014; hornsey et al., 2016; crompton and lennon, 2018). in addition, an in-depth reflection has taken place on aspects related to climate communication, such as the use of narrative techniques to better convey the message of the need for urgent action (arnold, 2018; gomez and coombes, 2019; rodrigo-alsina, 2020). building upon this scholarly work, this paper aims to find ways to contribute to overcoming climate inaction in the global north through a proposal: the use of human rights as a communication tool. human rights movements have made important strides in the last 70 years, by fostering emotions such as empathy and compassion and promoting values such as equality and solidarity. building on this experience, in the last two decades, an increasing number of organizations and activists concerned about the climate emergency have started employing the legal and political tools offered by a human rightsbased approach, as shown by the increasing number of climate litigation cases at the national and international levels (unep, 2021). however, the communicative potential of this framework has not been fully explored. therefore, a specific contribution of this paper is to propose a new climate communication model that borrows from human rights narratives, emotions, and values. the underpinning is that connecting the climate emergency with the human rights discourse should contribute to solving some of the issues related to climate communication, as it would help to move away from the technical debate on climate change and place the questions of human survival, inequality, and justice at its center, without neglecting the impacts on ecosystems and other species. to do so, it explores the literature revolving around the use of narratives, emotions, and values in climate communication. against this background, the first section will underline the need for a paradigm shift in climate communication, as it has traditionally rested on some common misunderstandings related to climate inaction. the second section will frame human rights within the context of climate change. it will explore the role played by human rights not only as legal instruments to achieve climate justice, but also as useful communicative tools that contribute to better convey the urgency of closing the climate action gap. finally, the third and most important section of this paper will elaborate a proposal to apply human rights-based narratives’ tools to climate communication. overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 4 1. climate communication: the need for a paradigm shift as climate communication has traditionally relied on some common misunderstandings related to climate inaction (1.1), it is necessary to rethink its premises. in this respect, three promising areas of research are analyzed: the use of narrative-based techniques, the use of emotions, and the use of values (1.2.). it is purported that these elements may help overcome people’s resistance to change their life habits and to get them involved in climate action. 1.1. an introduction to climate communication: common misunderstandings related to climate inaction since the 1990s, scholars in the fields of psychology, sociology, and more generally in social sciences, have been researching on how to get people to think and act in response to the climate emergency (webster and marshall, 2019). these scholarly works analyze the processes involved in the social construction of the climate change problem, as well as the emotional components and reactions of the public. as evidenced in a literature review on how to communicate climate change by moser and dilling (2012), most communicators have made largely erroneous assumptions about society’s inaction to fight climate change since this topic acquired political salience at the beginning of the 1990s. these assumptions are mainly threefold: the belief that information is sufficient to generate concern and action; the centrality of fear as a motivating emotion; and the idea that the same message can convince and motivate all types of audiences. firstly, the belief that information motivates action rests on the idea that ignorance of the climate change topic is the primary impediment to climate action. it is therefore assumed that understanding the phenomenon is the necessary condition for people to act; the corollary of this assertion is that communication based on more information and better explanations of the problem would serve to increase social action. nowadays, it is well-known that the way in which people adopt changes in their behavior depends on the interaction of several factors, including embodied values, prioritization of needs, situational context, social structures, perceived costs, and social pressure (meira cartea, 2008: 67). thus, there is now agreement upon the fact that the acquisition of knowledge alone does not necessarily imply that people will act accordingly (peacock, 2006). secondly, another assumption is based on the idea that fear in the face of catastrophes and potential disasters can motivate action. however, as discussed in the third part of this paper, fear-based appeals can be counterproductive and contribute to climate apathy and inaction. thirdly, mass communication is believed to be the most effective tool for mobilization. however, the media have limited capacity to tailor messages to specific audiences, and such one-way widely-directed communication can be perceived as exclusionary. in contrast, it has been pointed out that interpersonal communication or communication tailored to specific groups, whether face-to-face or via the internet, can be more persuasive. consequently, a creative mix of audience-specific messages, or “retail communication”, has been identified ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 5 as more cost-effective than mass communication that does not specifically target anyone (moser and dilling, 2012). therefore, better understanding the audience and tailoring messages to different audiences, a process called segmentation, can help identify the most appropriate messages that will most strongly influence different kinds of people. in order to overcome these assumptions about climate inaction, several alternative paradigms have been proposed in the last decade. 1.2. relevant areas of research: narratives, emotions, and values several authors have proposed “new” or “alternative” climate communication paradigms based on the use of narrative techniques (arnold, 2018; gomez and coombes, 2019; rodrigo-alsina, 2020), positive emotions (fredrickson, 1998; salama and aboukoura, 2017; gomez and coombes, 2019), and an appeal to shared values (corner et al., 2014; hornsey et al., 2016; crompton and lennon, 2018). these approaches share some common elements, such as using a type of communication that puts a human face on data and predictions, and which is more focused on the concrete impacts on communities and ecosystems. the main contributions of these approaches are examined and discussed below. the use of narratives it is well-established that storytelling is a central characteristic of human communication. thus, when communicating, human beings tend to transform events and perceptions into coherent narratives. generally speaking, narratives are defined as a certain way of telling related stories or events in a manner that is intended to “form a ‘common sense’ understanding of phenomena” (gomez and coombes, 2019). more concretely, narratives are considered as discourses, second-order realities, that interpret certain phenomena, considered as first-order realities (rodrigo-alsina, 2020, p. 103). in the field of climate change, the first-order reality is the scientific consensus and the set of empirical data about its existence. the second-order reality is the discourse that interprets and communicates on such data (2020, p. 103). as a result, climate change narratives encompass denial among conservative groups, technical discourses based on scientific evidence, and alarmist discourses that compel to take action, all with very different political objectives. according to the literature, the main benefits of communicating climate through the use of narratives are twofold. on the one hand, it makes it possible to identify the presence or absence of the typical components of a story –such as an initial situation, a conflict or complication, reactions, a resolution, and a denouement– and to identify different actors or narrative characters (heroes, villains, victims) (fløttum and gjerstad, 2016). on this topic, arnold (2018) empirically studied the effects of different narrative resources on climate communication, stressing that the boundaries among roles should be permeable and thus allow for evolution from one role to another. in this way, both victims and villains can become heroes through climate action. on the other hand, these narratives are relevant for their ability to propose powerful imaginative worlds in the form of past scenarios as well as future perspectives. this is overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 6 a fundamental aspect to overcome the reactive component often enshrined in climate activism. while it is important to react to denialist narratives or narratives that minimize the magnitude of climate change, the ability to propose responses and present viable alternatives that offer positive future scenarios in case of more ambitious climate action is essential. the use of emotions abundant research has shown that data-based narratives do not necessarily fulfill their objectives and should also resort to emotions and values in order to be effective (lakoff, 2010; crompton, 2010; corner et al, 2014). similarly, according to roeser, “emotions might be the missing link in effective communication” (2012, p. 1033) as they are necessary to convey to the public the moral and ethical impacts of climate change, as well as to instigate motivation and, consequently, action. as salama and aboukoura (2017) argue, recognizing the role that emotions and feelings play in the way we understand climate change is key, particularly to better know what motivates the audience to behave in certain ways and what might inspire them to change their behavior. however, there is less agreement in the relevant literature regarding the types of emotions that are more effective in pushing climate action. in fact, there is a vivid debate about the role that negative emotions, such as fear or guilt, can play in climate communication. according to some views, negative emotions, such as anger or fear, make people alert and therefore more aware of the issues that generate these emotions; this may also lead them to seek more information (baron et al., 1994), to transform apathy or indifference into perceived importance, and therefore to engage them towards action. likewise, some scholars stress that emotions such as anger and indignation may be more efficient with some specific types of audiences. for example, kleres and wettergren (2017) contend that indignation and anger linked to the attribution of responsibility for climate change to the global north are mobilizing emotions for global south activists. similarly, according to knops (2021), indignation is central to the discourse of greta thunberg and the #fridaysforfuture movement; specifically, this author suggests that outrage towards injustices that underlie the lack of climate action and compassion for those affected can inspire mobilization. in contrast, salama and aboukoura (2017) consider that the elicitation of emotions should be managed carefully, bearing in mind that these might have the opposite effect to the one intended. in fact, the intensification of negative emotions can backfire, as fear and anxiety may lead to avoidance behaviors and defensive denial (salama and aboukoura, 2017), pushing people to look the other way and to lose interest in the topic. moreover, there is an interesting stream of literature pointing at the usefulness of positive emotions such as hope in climate communication. indeed, markowith and shariff (2012) recommend that communicators base their speeches on the use of positive emotions such as hope, pride, and gratitude, rather than negative emotions such as guilt, shame, and anxiety. in addition, randall and brown highlight that there are more mobilizing emotions ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 7 than guilt, such as: “(t)he empathy for others, a sense of relatedness to the rest of the natural world, and a proportionate sense of responsibility” (2015: 13). thus, the use of positive emotions must be considered when involving people in issues that challenge them and, consequently, in the social movements that promote them. nonetheless, it should be stressed that appeals to positive emotions, such as hope, should not fall into the so-called hopium (salamon and gage, 2020), a neologism combining the words hope and opium, which expresses the problem of confusing the hope necessary to initiate any action with blind faith that technological innovation or similar solutions will come along and save humanity. similarly, as crompton and kasser (2009) observe, knowing the negative effects of using emotions such as fear does not mean that communicators should sugar-coat the scale of the multiple and devastating impacts that are expected, now and in the future. instead, they argue that it is important to fully disseminate an understanding of such impacts, but this should probably be done in a way that is not deliberately designed to stimulate fear. the use of values in addition to emotions, values play a fundamental role in climate communication, as they are one of the aspects that explain mobilization and attitudes towards this challenge. indeed, according to hornsey et al. (2016), along with worldviews and political affiliations, values are among the main determinants of people’s responses to climate change. values are defined as principles that characterize something that is important for an individual or a social group (rokeach m., 1979). some of them have a universal character and are present in different human cultures. in this respect, authors such as schwartz (1992) have identified several basic universal values (benevolence, universalism, hedonism, tradition, etc.), which are present in all human societies, although there are differences in how they are hierarchised. furthermore, these universal values are closely linked to the types of motivation that explain people’s behavior (schwartz, 1992). for example, people whose primary motivation is conservation –to perpetuate social structures and maintain their position and status within them– will attach more importance to values such as security, tradition, or conformity to group rules. in contrast, people who are more concerned with self-transcendence –that is, going beyond their own personal interests and seeking psychological well-being through doing what they believe is right– will identify more strongly with values such as benevolence or universalism and aspire to a world with greater social justice and equality. a similar theory by deci and ryan (2002) is also based on the organization of a set of values considered universal into two types of motivations: intrinsic and extrinsic. according to these authors, people driven by intrinsic motivations tend to prioritize subjective aspects in their behavior, such as the satisfaction of basic psychological needs, and are related to values such as personal growth, social connection, and contribution to the community. on the other hand, people driven by extrinsic incentives are motivated by external, often material, aspects that require the admiration and recognition of others, such as success, popularity, or beauty. overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 8 of these two poles, the value category that most positively influences climate action is self-transcendent/intrinsic values, such as universalism or benevolence (brown and kasser, 2005; jia et al., 2017). people who identify with intrinsic motivations and self-transcendent values are more likely to care about the climate emergency and act accordingly. conversely, people who have more hierarchical and individualistic views –and thus identify with self-promoting/extrinsic values– attach less importance to environmental risks, and in particular to the climate emergency (corner et al., 2014). therefore, this evidence suggests that basing climate communication on selftranscendent/intrinsic values may be more effective to connect with people that already identify with those sets of values. in fact, several experimental-based studies show that a type of climate communication aimed at reinforcing self-transcendent/intrinsic values (highlighting, for example, the intrinsic value of nature) are more effective in generating pro-environmental behaviors than extrinsic value-based communication (which emphasize, for example, the monetary value of environmental services) (corner et al., 2014). however, as always, it is also important to preach beyond the already converted, which in this case would mean to try to also reach a general audience, including the people that are not necessary identified with intrinsic values. in this sense, beyond targeting people that already share them, it is also necessary to propose a change of values that pushes consumer societies towards sufficiency or frugality (alcott, 2008; roiland, 2016). this implies a behavior of restraint, i.e., consuming what is necessary rather than what is possible, assessing needs, and thus decreasing the conventional levels of consumption in affluent societies. thus, considering that extrinsic values are central in the individualistic and consumerist societies of the global north, climate communicators should also promote a change of values in the general population, which is not an easy task but more likely to happen under particular conditions. for instance, shifts from extrinsic to intrinsic motivations have been documented at specific periods of life, particularly during youth (sheldon, 2005). the possibility of societal value change is supported also by the relevant body of studies that distinguishes between “needs” and “needs satisfiers”. building on the differences between human needs, which are universal and limited, and needs satisfiers, which are culturally and historically dependent (max-neef, 1991), transformative possibilities for value change open in affluent societies. put differently, critically analyzing satisfiers in these societies can lead to finding different ways of fulfilling the real needs of people (brand-correa and steinberger, 2022), without disregarding the needs of nonhumans (jolibert et al, 2011). to sum up, examining the role of values in environmental communication reaffirms the idea that climate narratives should be rethought. as argued by daniels and endfield (2009), in order to be effective and to trigger changes towards sustainability in the behavior of the wider population climate change narratives need a radical paradigm shift. in the following section, the role played by human rights is examined. ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 9 2. human rights and climate change: towards a convergence path it is now well-established that climate change represents one of the greatest threats to the enjoyment and realisation of human rights (2.1.). in response to this scourge, the evolution of human rights law should reflect the need to satisfy human basic needs while respecting planetary boundaries (2.2.). the convergence between climate change and human rights at the legal and policy levels therefore constitute an interesting development that should be reflected and debated in the context of climate communication. 2.1. human rights in the climate struggle international interest in the links between climate change and human rights is a relatively recent phenomenon. it has only been since the early 2000s that, in the face of slow progress in addressing climate change, several processes have been initiated to understand, highlight, and build on these links (limon, 2009). since then, groups affected by climate impacts around the world have creatively resorted to human rights tools. human rights law has integrated climate change concerns starting from 2008, with the adoption of the human rights council resolution a/hrc/res/7/23. since then, different un bodies have published several resolutions and reports that deepen this interaction. for example, they have recognized the negative impact of climate change on extreme poverty (a/hrc/41/39), the right to food (a/70/287), the right to decent housing (a/64/255), the rights of indigenous peoples (a/hcr/36/46), or the rights of migrants (cncdh, 2021, 8). moreover, the most recent developments regarding the connection between human rights and the environment now converge in the growing recognition of the right to a healthy environment, which is also understood as a means to catalyze the negative impacts of climate change on human rights. in fact, even though it is not enshrined in a universal legally binding document, the human rights council resolution 48/13 –later endorsed by the general assembly on 28 july 2022– recognised the right to a safe, clean, healthy, and sustainable environment as a human right for the first time in the international arena. this normative progress has been accompanied by an important institutional development, as the human rights council also created a special rapporteur on the promotion and protection of human rights in the context of climate change through the adoption of resolution 48/14. despite this convergence, important challenges remain, as some areas still require further clarification. indeed, the structure of human rights protection systems is not necessarily adapted to the phenomenon of climate change (perruso, 2021: 244). human rights are based on a specific holder, a specific object, and a person responsible, making it difficult to identify direct and clear violations of human rights due to the impacts of climate change. nevertheless, this difficulty can turn into an advantage if these elements can indeed be identified. the victims of climate change-based human rights violations may then seek reparation, thus materializing the problem and relate it to a human face (atapattu, 2016: 49-50). in this regard, one of the ways currently under development overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 10 consists precisely in bringing cases before the courts for violations of human rights derived from climate change –starting from the urgenda case in the netherlands to the neubaeur et al. case in germany, while interesting cases involving the youth and elderly women are still pending before the european court of human rights– thus obliging to rethink the notion of victim of human rights, legal standing, and access to justice in this context. 2.2. human rights in the anthropocene: limits and sufficiency despite the role that human rights play nowadays in the climate struggle, the classical conception of human rights as a human being’s aspiration for a better life should be reconceptualized in the context of the anthropocene, a period which is characterized precisely by the catastrophic impacts of humans on the biosphere. in fact, as human rights were developed before the current level of ecological overshoot and in a period characterized by the abundance of natural resources, there is a need to reformulate these rights and to adapt them to the present context, in line with the scholarship that studies the relationship between human rights and the environment/climate change. according to key proponents within this scholarship, human rights have the potential to “humanize” the anthropocene and lean towards an ecocentric approach; however, to do so, it is necessary to move away from the human rights model inherited from the enlightenment period and to adopt an approach that also includes the ecological perspective (kotzé, 2014). in the current context, it is particularly important to include the concept of “planetary boundaries” within the notion of limits to human rights. the international bill of human rights reached completion in the mid-1960s, before the celebration of the stockholm conference in 1972, which marked the irruption of environmental concerns in the international policy arena. therefore, the human rights protection system established by that bill includes some specific limits (such as public order), which can justify the restriction of rights, but excluded any reference to any kind of environmental limit that could impose constraints on human rights. significantly, the 1966 human rights covenants precede the publication of the limits to growth report that, for the first time, tried to raise awareness about the constraints of the development process. much more recently, kate raworth’s model of “doughnut economics” (2017) significantly tries to reconcile human rights and freedoms with the notion of environmental limits, conceptualized in terms of “planetary boundaries” by the stockholm resilience centre (rockström et al. 2009). this model aims at ensuring that no one lacks access to basic goods and services (such as food and housing, but also expressing a political voice), while ensuring that humans do not trespass planetary boundaries, including global warming (raworth 2017). therefore, and although this model has been criticized for being techno-optimist as well as for underestimating the role of capital accumulation and consumerism in modern economies (spash 2021: 18), her delimitation of a “safe and just space” for humanity’s development remains a very useful conceptual tool that still inspires new research in the area. thus, as it calls for the world’s countries to achieve minimum thresholds in social welfare while remaining within planetary boundaries, this model highlights a crucial issue ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 11 in the context of climate justice debates: how to guarantee social rights while reducing emissions. in fact, expanding on this approach, further supported by subsequent empirical research based on this model (o’neill et al., 2018), it is argued that human rights should be considered as minimum thresholds for the protection of human dignity on a planet with biophysical limits. this consideration has significant implications for climate policies, as considering the limited carbon budget, fulfilling human rights in the global south while reducing global emissions would imply a drastic reduction of emissions in the global north. to illustrate this, henry shue’s distinction between “substance emissions’’ and “luxury emissions” (1993) may be useful, as he addressed the issue of what a fair allocation of the costs of preventing global warming would be. according to this view, energy transition policies should focus on cutting “luxury emissions” first, which are mostly associated with overconsumption in the global north. in line with this idea, rao and baer (2012) have addressed the complex issue of establishing a minimum level of emissions linked to the satisfaction of minimum standards to guarantee a decent standard of living; to do so, they take into account not only individual access to basic goods or services –such as adequate nutrition, housing, refrigeration or even a mobile phone–, but also the provision by the state of basic infrastructures. as mentioned previously, sufficiency should be included in the list of values already promoted by human rights, and combating income inequality should be put in the list of human rights-based policy tools. actually, this paper intends to suggest that human rights can also be useful in operationalising the concept of sufficiency: in particular, economic, social, and cultural rights set minimum standards that aim to cover people’s basic needs for survival, such as food, clean water, housing, health care, and education. they also cover social and cultural issues related to participation in the workplace, public services, and the proper development of family and cultural life. thus, translating kate raworth’s model of the doughnut economy to the human rights framework would mean that these rights form the inner ring, or the minimum threshold of basic needs below which no person should fall, while planetary boundaries form the outer ring, imposing maximum thresholds on their enjoyment. consequently, this would imply also tackling global inequality: as hickel recently suggested (2019), in a world where limits are being surpassed and where global growth is not an adequate strategy for ending poverty, satisfying basic human rights requires significant reductions in global income inequality. more concretely, he proposes policy options such as capping global gdp and then shifting a portion of it from the global rich to the global poor. as a final point of thought, it is important to consider the implication of using concepts such as human rights or the paradigm of doughnut economics that are deeply anthropocentric, as they focus on humans needs. therefore, including an ecocentric perspective in the contemporary human rights paradigm, as defended by kotzé (2014), also implies going beyond the intrinsic anthropocentrism of human rights, which situates the human species and its needs as the center. contrary to the view that lies behind the current ecological crisis, ecocentrism emphasizes the intrinsic value of nature and the web of life it supports. thus, in the context of the anthropocene and considering the damages that human beings are doing to the biosphere, a contemporary consideration of human rights should highlight the responsibility that human beings have vis-à-vis the rest of the overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 12 living world (kotzé, 2014: 256). therefore, empathy for other human beings should be extended also to other living creatures and the ecosystems that support them. 3. human rights in climate communication: a proposal examining further the connection between human rights and climate change may be useful too in the context of climate communication. however, even though such connection is now well-established in the legal field and the united nations have recommended a human rights-based approach to climate action, the use of human rights language and narratives remains understudied in the field of climate communication. one example is the lack of empirical research delving into the relationship between human rights support and climate change beliefs/concern, even though it is essential to understand whether a rights-based response would indeed receive widespread public support (athy et al, 2022). despite that gap, there are good reasons to think that this avenue is worth exploring. on the one hand, apart from the literature explored in this paper, the well-developed literature about framing in the area of climate change points at the need to go beyond the scientific discourse—global scale, scientific statistics and facts, and impact on the earth’s systems—and move to a social discourse—local scale, impact on humans, and connections to social, economic, and political processes—which is more likely to inspire action (busch, 2016). on the other hand, there are already empirical studies in the field of social psychology that have established correlations between support for human rights and climate change beliefs, such as a prominent study based on evidence from new zealand. more concretely, the evidence underlined a bidirectional relationship between support for certain rights on one side, such as the rights to food, clothing, housing, and medicine, and climate change beliefs/concern on the other (athy et al, 2022). therefore, it seems that the use of human rights in climate communication is, at least, worth exploring. in order to develop the possible synergies between the human rights and the climate emergency discourse, this section attempts to explore how a human rights approach to climate communication would look like in practice. to this end, and having in mind the importance of limiting the intrinsic anthropocentrism of the human rights paradigm, the following communicative proposal is based on a conception of human rights as minimum thresholds for the protection of human dignity on a planet with biophysical limits that encompasses others forms of life that should be preserved and treasured. more concretely, this proposal revolves around four main axes: a series of narrative resources (3.1.); a set of values, such as dignity, justice, solidarity, and sufficiency, which emerge from both human rights and the behavioral restraint that would be required by living within limits (3.2.); the use of emotions such as hope and empathy with other humans and other species, as well as fostering connection with the natural world (3.3.); and a vision of a fairer future for all people (3.4.). 3.1. a range of narrative resources: victims, perpetrators, and agents of change human rights-based narratives present some characteristics that may be useful when communicating about climate change. first, they provide a vision of the world and ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 13 society grounded in human dignity and equality (ohchr, 2019), which helps to establish a transformative vision of the future that both empowers citizens as agents of change and identifies injustices to be fought against. moreover, such narratives seek to promote human rights-inspired values and principles in a cross-cutting manner (council of europe coe, 2017). in this sense, both the ends and the means used must respect the values derived from human rights, such as the dignity of human life, equality among human beings, and the pursuit of justice and solidarity. according to the coe, a human rights-based narrative must promote equality, respect and solidarity, the understanding of the principle of human dignity, as well as critical thinking, fair dialogue and correct information. in addition, human rights-based narratives focus on human beings, their experiences, their needs, and possible actions to address these situations (nesri, 2015). they tell human stories that recipients can identify and empathize with. these narratives can therefore help frame climate change as a story of human suffering and of loss of the cultures and ecosystems on which life depends. in contrast to some environmentalist narratives based on the idea of “saving the planet”, this would show that the impacts of the climate emergency are primarily a human problem, without losing sight of the impacts on other species and ecosystems. on this issue, it is important to present climate activism as a quest for justice that seeks to ensure human dignity and the balance of the ecosystems on which the lives of people and other species depend, while defending the intrinsic value of nature beyond the resources it provides. central to this task is telling human stories that connect audiences to realities close to home or situations they can empathize with. one effective way to overcome the uncertainty linked to the climate emergency is to effectively tell human stories about the people affected by the climate emergency (and how those people are acting to cope with it), moving from treating climate change as a scientific reality to treating it as a social reality (corner et al., 2014). this proposal also echoes the communicative strategies developed by webster and marshall (2019), in which they highlight the need for storytelling, as well as explaining actions taken to address the climate emergency in order to lead by example. furthermore, as mentioned above, using a narrative-based perspective makes it possible to identify the presence or absence of the typical components in a story. yet, as the roles of the different actors are permeable, villains, rather than being ostracized, should be held accountable, both morally and legally, in line with human rights values and obligations. likewise, portraying victims as disempowered actors is to be avoided. for instance, a human-right based narrative that highlights the causes and responsibilities of the climate emergency should include a focus on how and why fossil fuel corporations have delayed and opposed climate action for years. including such a perspective would put a name and face on those who violated human rights on a global scale by prioritizing economic gain for few northern countries (boykoff and farrell, 2020; oreskes and conway, 2010). in relation to their protagonists, human rights-based narratives seek to transform societies to fit the promoted project of society, thereby turning citizens into agents of overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 14 change (nesri, 2015). people are empowered as rights holders, able to claim their rights and hold authorities accountable. people are not only victims; they are also the drivers of change. thus, the existence of shared values grounded in a common vision of a just society can unite people in a collective action that seeks to remedy existing injustices in a given system (nesri, 2015). in this respect, encouraging people’s participation, a central element in the human rights perspective, is crucial: participation, discussion, and contribution to the formulation of responses can make the problem more relatable than it is today (moser and dilling, 2012). finally, emphasizing a common core of values as a founding element of collective action helps to foster a sense of belonging to a community, so that it is not necessary to be a direct victim in order to take action. accordingly, human rights become tools available to anyone who wishes to improve the current situation (gomez and coombes, 2019). according to the findings of an experimental study on human rights narratives, the most successful and enduring narratives are based on the examples of people who have fought for human rights (gomez and coombes, 2019). in fact, the stories of the struggle of figures such as rosa parks, martin luther king, and nelson mandela, among many others, were an important piece in the success of human rights movements in the xxth century. it is therefore crucial to make the struggles of people fighting against the climate emergency visible and to protect human rights in a context of environmental change and energy transition. consequently, human rights narratives are not limited to a ‘passive’ dimension of human rights as subjective rights of individuals, but they also seek to use human rights in their active dimension, as instruments that enable the desired change to be achieved (gomez and coombes, 2019) –for example, by holding protests, calling politicians, bringing cases before courts, etc. 3.2. an appropriate use of emotions: empathy and hope in the context of climate communication, a human rights approach is particularly useful to put a human face to victims, to concretize its impacts on people’s daily lives, and, in fine, to convey positive emotions such as empathy or hope. indeed, human rights are based, both empirically and conceptually, on the natural capacity of human beings for empathy (von harbou, 2014). empathy is a central emotion in human rights discourses; thanks to its universal character, it is concerned with the violations of all people’s rights on the planet. at the same time, human rights narratives tell human stories both to raise awareness and to foster empathy. moreover, the human rights movement is underpinned by hope for a better world. in recent years, in response to the surge of authoritarian populist movements, human rights groups and organizations have shifted towards positive, hope-based communication techniques (gomez and coombes, 2019). similar to the situation in climate communication, positive communication may seem quite counter-intuitive in human rights communication, which relies on denouncing injustices and abuses. however, according to gomez and coombes, ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 15 in the current media context, and in the face of the onslaught of authoritarian populist movements, the traditional approach of ‘naming and shaming’ has become ineffective. they therefore propose to respond to the narratives of these movements, based on fostering a climate of controversy, crisis, and social conflict, with human rights-based narratives focused on fostering hope for a better world through culture, cooperation, and community. however, as mentioned above, a communication that appeals to hope must not fall into hopium: hope comes through urgent action on climate change and social mobilization. while it is a good idea to base communication on positive emotions such as empathy and hope, this does not mean that the evocation of negative emotions should be completely avoided. as mentioned earlier, the key to using emotions is the ability to adapt a speech to each audience, as sometimes negative emotions such as fear, indignation, or anger can also contribute to motivating action. it should nonetheless be recalled that, if a discourse is aimed at a general audience, overusing emotions such as fear or guilt can be counterproductive. similarly, in relation to guilt, rather than encouraging guilt among the audience for not doing enough in the face of the climate emergency, it may be more fruitful to focus on the concept of responsibilities, which is also key in the human rights discourse. authors such as escrivà (2020: 87) stress that it is more desirable to call for responsible behavior than not to try to make the audience feel guilty. according to him, it is also necessary to delimit guilt, responsibility, and moral duty, and to identify the collectives that bear the greatest responsibility due to their impact in terms of emissions –be they specific states, particular groups of people, or organized actors such as companies. again, the human rights framework can help to pinpoint those actors who, by failing to reduce their emissions, are responsible for the human rights violations derived from climate change, while also highlighting their obligations. 3.3. values: dignity, equality, justice, solidarity and sufficiency human rights-based narratives aim to establish a worldview based on shared values, which can bring about transformative change (nesri, 2015). human rights values rest on the concepts of universality and humanity shared by all people. these values are therefore the dignity of human life, equality among human beings, and the pursuit of justice and solidarity. this set of values constitutes a core that transcends borders and with which people anywhere in the world can identify. similarly, at a conceptual level, human rights express a minimum standard of morality, which implies an altruistic motivation (von harbou, 2014). thus, these values are shared by groups that identify with intrinsic and self-transcendent values, which, as mentioned above, positively influence the corresponding action-taking in the fight against climate change (corner et al., 2014). this core set of common values should therefore be taken into consideration when promoting more effective climate communication strategies that follow a human rights perspective. however, an important value should be added to this common set: sufficiency. as discussed before, with a limited carbon budget for human societies, fulfilling basic overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 16 human rights in the global south implies a considerable reduction of energy and material demands in the global north. thus, sufficiency and frugality should be included as human rights values. 3.4. a vision of a future society as indicated above, narratives are relevant for their ability to propose powerful imagined worlds in the form of past scenarios as well as future perspectives. in addition to the emphasis on just solutions, it is crucial to create a collective narrative in which reducing emissions is worth trying. these values underpin a certain vision of the world, more just and egalitarian, which is used as an ideal to be achieved and predisposes to awareness. human rights have the potential to “bring people together in solidarity”, generating a sense of belonging “that transforms a cause into something historic, transcendental and inevitable” (gomez and coombes, 2019). in this sense, collective action is organized around a vision of what a just society should be, rather than what is politically possible. this horizon of justice then allows to move from defensive claims to proactive claims seeking to create political space for change (nesri, 2015). with regards to climate change, it means promoting narratives that propose a horizon where emissions reductions are not only possible, but also benefit society as a whole. in order to achieve collective action, human rights narratives therefore put the focus on the human needs that require action by authorities, with the long-term goal of a just society (nesri, 2015). in the context of climate change, it means highlighting the impacts of climate change on human rights, such as the right to life of present and future generations, or the rights to health, food, water, and housing. it also entails underlining the special needs of the groups most vulnerable to the negative effects of climate change, from a social and global justice perspective. in this regard, the use of human rights narratives in the field of the climate emergency makes it possible to connect with other social movements, which are mobilized by common values (equality, solidarity, justice) such as feminist or equality-based movements. the use of these narratives that move beyond the environmental framework facilitates the dissemination of the message. indeed, once these other social movements appropriate such a message and disseminate it on their respective platforms, they are able to reach wider sectors of the population. conclusions the purpose of this paper was to explore the potential of human rights-based narratives and discourses in climate communication. in this respect, despite the convergence of the human rights and climate change discourses in the legal and policy fields, the contribution of the human rights language and values to climate communication has been so far understudied. building on the most relevant literature in the field of social and environmental psychology, this proposal intended to help closing this gap. ana garcía juanatey, bettina steible, ilaria de vita the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 17 of course, climate inaction is a problem that transcends the sphere of communication: the resistance of the population and of political and economic actors is tenacious. on this issue, it cannot be ignored that effective climate action that would drastically and rapidly reduce greenhouse gas emissions would imply the total transformation of the economic system, as it is based on an unprecedented energy voracity in the history of humanity. furthermore, in a context characterized by pressure from a great variety of powerful actors to delay responses to this emergency, climate communication occurs in an environment loaded with contradictory messages and self-serving information. in this context, it is critical to communicate the urgency to act decisively and the feasibility of policy responses, but only if they are based on a substantial reduction of energy demands and a significant change in societal values; it is therefore equally important to promote sufficiency and frugality among the population. the challenge is not trivial: the window of opportunity is closing, and the decisions adopted in the next five years could determine impacts that will be felt in human communities and other living beings for generations to come. although using a human rights approach does not solve the many problems of climate communication, the view defended in this paper is that some of the concepts and processes underlying this approach can be useful and eventually lead to developing new common solutions. thus, besides a series of legal tools, human rights also provide a series of concepts, emotions, and values that may be of interest for climate communication. in this sense, it seems crucial to communicate the current and expected impacts of climate change in human terms and, therefore, to give visibility to its effects on people’s ability to maintain their current livelihoods and their cultures in the future. this also makes it possible to propose fair responses based on responsibility, in accordance with the climate justice framework. on the other hand, this work further echoes the criticism of using human rights, due to the anthropocentrism inherent in its formulation, among other aspects. for this reason, in the current context, we defend the need to adequately weigh these rights and reformulate them in order to situate them in a framework in which people’s subsistence emissions can be guaranteed, respecting both minimum thresholds –for guaranteeing basic needs– and maximum thresholds –in this case of emissions– that should not be exceeded. as a logical corollary to this approach, it seems crucial to place inequality and the necessary redistribution in the access to the earth’s abundant resources –particularly between the global north and the global south– at the center of the debate. likewise, it is also vital to reflect on the impact of climate change on other species and extend the empathy with other affected humans to these fellow living creatures. finally, another conclusion of this work is to underline the extreme complexity of its object of study: climate communication is a multifaceted and complex field in continuous development, and therefore a challenging matter on which to communicate and explain. in this regard, it is fair to recognize that effective communication is not just about alternative content, but also a matter of access to the media, audience reach and, of course, the resources of the actors involved. therefore, against this background, the role of science and academia should be highlighted, as it is necessary to advance research on issues such as the roles that emotions, values, and identity play in climate communication. more empirical studies are needed to examine the potential of human rights narratives overcoming resistance to climate action in the global north: the potential of using human rights as a new paradigm for climate communication the age of human rights journal, 22 (june 2024), e7967 issn: 2340-9592 doi: 10.17561/tahrj.v22.7967 18 for climate communication, focusing particularly on how different social groups would perceive those narratives. this would help the concerned institutions, social movements, and activists to adapt their messages to each audience and frame the topics in the most effective way, enhancing and maximizing their impact. funding the research upon which this article is based was partially funded by a postdoctoral grant conceded by the planetary wellbeing project of the universitat pompeu fabra to ana garcía juanatey (2019-2021). references alcott, b. 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(2019). the #talkingclimate handbook. how to have conversations about climate change in your daily life. oxford: climate outreach. received: 2nd may 2023 accepted: 28th september 2023 https://doi.org/10.1007/s10806-016-9619-6 https://doi.org/10.1007/978-3-319-69838-0_9 https://doi.org/10.1016/s0065-2601(08)60281-6 https://doi.org/10.1016/s0065-2601(08)60281-6 overcoming resistance to climate action in the global north: the potential of using human rights abstract introduction 1. climate communication: the need for a paradigm shift 1.1. an introduction to climate communication: common misunderstandings related to climate inacti 1.2. relevant areas of research: narratives, emotions, and values 2. human rights and climate change: towards a convergence path 2.1. human rights in the climate struggle 2.2. human rights in the anthropocene: limits and sufficiency 3. human rights in climate communication: a proposal 3.1. a range of narrative resources: victims, perpetrators, and agents of change 3.2. an appropriate use of emotions: empathy and hope 3.3. values: dignity, equality, justice, solidarity and sufficiency 3.4. a vision of a future society conclusions funding references confronting binary foundations: non-binary identities and the edges of rights the age of human rights journal, 18 (june 2022) pp. 1-3 issn: 2340-9592 doi: 10.17561/tahrj.v18.7180 1 presentation confronting binary foundations: non-binary identities and the edges of rights blanca rodríguez-ruiz university of sevilla this special issue of the age of human rights journal, entitled confronting binary foundations: non-binary identities and the edges of rights, covers some of the conferences organised online in 2020 and 2021 within the research project (pid2019107025rb-i00) “sexed citizenship and non-binary identities: from non-discrimination to citizenship integration” (binasex). the aim of binasex is to carry out interdisciplinary comparative research on the challenges non-normative sex-gender identities face and pose in contemporary democracies, in both strictly legal and broader social terms. it is to show how these challenges are rooted in the foundations of modern states, constructed on the basis of a rigidly binary sexed citizenship. it is ultimately to examine the specific shape these challenges take in different contexts and explore ways to respond to them in terms that enhance the vocational inclusivity of democratic citizenship. binasex started functioning in 2020, at a time when the measures adopted to face the covid pandemic made in-person meetings difficult, if not impossible to hold. our first meetings, directed to drafting a provisional comparative diagnosis of the situation, had to take place online. as second best, online meetings deprived us of physical contact, faceto-face discussions and more relaxed exchanges at social venues, yet they also proved easier to organise and to be part of, particularly for an international research team. this happened at a time, moreover, when several draft bills addressing non-normative sexgender identities were being discussed in spain, and one draft bill was finally proposed by the spanish central government; all of which stirred up heated social, political and legal debates, particularly among feminists. members of binasex took an active part in these debates. circumstances thus led us to hold several online conferences between december 2020 and may 2021, some of which paid particular attention to the situation in spain. this special issue collects some of the papers presented in them. the issue opens with rafael vázquez’ inspiring reflections on the deep connections between the democratic principle, feminism and the need to go beyond binary citizenship; the author elaborates on feminism as an essential motor for democracy, one that has historically pushed democracy to remain consistent with itself, beyond the pressures of liberal-capitalist logic; he finds queer theory to be an essential part of this motor looking forward; and he invites us to embark on a queer democratic utopia. confronting binary foundations: non-binary identities and the edges of rights the age of human rights journal, 18 (june 2022) pp. 1-3 issn: 2340-9592 doi: 10.17561/tahrj.v18.7180 2 assumpta sabuco opens then a series of analyses centred on spain; her paper takes us on an engaging review of how normative and non-normative sex-gender roles and identities have been portrayed in spain’s popular culture since the 1960s (the latter part of franco’s dictatorship) to date, on the part they have played and continue to play as elements of national definition and/or political transgression. blanca rodríguez then critically reflects on the legal and cultural obliteration of non-binary bodies; on how binary citizenship has been built at the cost of biological diversity; on spain’s reticence to open the official gender spectrum beyond binary strictures even on the brink of embracing gender self-determination; on the inherent contradictions and misfunctioning this entails from a democratic perspective. ruth mestre delves in turn into the fears that gender self-determination arouses in some feminist ranks in spain, afraid that without medical control of their identity trans-women might hamper cis-women’s physical safety and legal position; in these fears mestre identifies the features of “moral-panic” dynamics. laura flores closes this set of papers with an analysis of spain’s approach to gender identity at a regional level, a journey through the specific laws enacted in 14 of spain’s 17 autonomous communities; she highlights the differences among regions, hence the diversity of legal orders in spain, but also their common features, the main one being that, except for one, all regional laws rely explicitly or implicitly on self-determination, thus paving the way for it to be embraced by national legislation. a second set of papers take a look at different legal approaches to gender identities and their expressions. anna lorenzetti tells us about the medical and legal treatment of intersex children in italy: about the absence of any legal recognition in a strictly binary sex-gender system, about the prevalence of cosmetic surgeries on new-borns and their damaging consequences, and about possible legal strategies that could ensure the protection of intersex children’s rights. silvia romboli then introduces us into the standards of protection of trans people’s gender identity developed by the european court of human rights, based on the right to private life as linked to the dignity and freedom of individuals; she leads us through the evolution of this court’s caselaw towards higher standards of protection and a narrower margin of appreciation for member states to decide on the limitation of this right; she finally focuses on how far the draft bill proposed by the spanish government complies with european standards. caroline hansen also concentrates on the european court of human rights and its caselaw on gender identities and their expressions, albeit from a different angle: her aim is to highlight how heavily this court relies on gender stereotypes, the extent to which these impregnate its caselaw even in the context of protecting trans people’s rights. there follows sebastián lópez’ insights on how trans identities are being approached in latin america; his paper offers us an analytical overview of the most relevant legal approaches to be found in this continent, in a comparative analysis that contrasts the positions taken by constitutions, legislators and courts. a third and last set of papers contemplate non-normative identities and their expressions from different standpoints. luisa winter pereira takes us through the world of intersex activism as represented by two associations (brújula intersexual and stop intersex genital mutilation), through their involvement with the united nations in five of their committees, and the role they have played in shaping the international protection blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 1-3 issn: 2340-9592 doi: 10.17561/tahrj.v18.7180 3 of the rights of intersex people. ana galdámez analyses the protection non-normative sex-gender identities and their expressions require against hate speech; she explores the standards of protection established by the european court of human rights on the matter and reflects on how the balancing act between freedom of expression and hate speech against sex-gender minorities can be expected to operate in the digital era. finally, ana valero reflects on (non-binary) post-porn as a form of expression; after revising feminist debates on pornography, and without ignoring the prevalence of mainstream (heteropatriarchal) pornography and how it can be harmful for women, she highlights the potential that non-conforming pornography, in particular post-porn, can have as a tool for expressing political dissent and instigating social change. trans-visibilities and sexual politics: temporary passages in spanish popular cultures making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 5 making sense of it: why democracy (and feminism) needs to go beyond binary citizenship* rafael vázquez garcía** abstract: this text assumes and departs from three basic premises: 1) identities are not born but constructed through repeated performative actions that are in turn informed by existing social constructions of gender; 2) analysing and understanding the ways in which gender is shared and historically constructed can lead to a construction of gender that goes beyond the binary system on which heteronormativity depends; 3) feminism is inherently democratic and entails the consolidation of the very conception of democracy. if feminism wants to remain so, it concludes, it cannot but embrace the theoretical framework and action of non-binary citizenship conceived by queer theory. keywords: citizenship, democracy, feminism, identity, non binary, queer theory. summary: 1. introduction. 2. some considerations on gender and (trans) feminism. 2.1. patriarchy, gender and identity. 2.2. feminism and transfeminism. 3. why is queer theory important to democracy. 3.1. widening the “demos”. 3.2. decolonised cosmopolitan democracy. 3.3. democracy as pleasure. 3.4. (trans)feminism, democracy and capitalism. 4. posthuman knowledge and utopia: concluding remarks “we are a movement of masculine females and feminine males, cross-dressers, transsexual men and women, intersexuals born on the anatomical sweep between female and male, gender-blenders, many other sex and gender-variant people, and our significant others. our lives are proof that sex and gender are much more complex than a delivery room doctor’s glance at genitals can determine” (feinberg, 1998) -first, we believe that each person has the right to define their own identity and demand that society respect them. this also includes the right to express our gender without fear of discrimination or violence. second, we hold that we have the exclusive right to make decisions regarding our own bodies and that no political, medical or religious authority should violate their integrity against our will or impede the decisions we make in this regard. (koyama, 2000) todos los orgasmos que he tenido esta semana me han permitido acceder a dios y me han revelado premoniciones detalladas del futuro y de lugares que no existen en esta dimensión. mi abuelo me observa mortificado desde la puerta de la cocina. la familia entera me escucha indignada, extremando las medidas de incredulidad (tilsa otta, 2021) * article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binarias: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. i feel really grateful to the comments made by prof. blanca rodríguez-ruiz and two anonymous referees, which have substantially improved the initial ideas and the structure of this work. ** associate professor (profesor titular) of political theory, department of political science and public administration, universidad de granada, spain (rvazquez@ugr.es). making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 6 1. introduction during the last decades, the irruption of queer theory has meant an important challenge both for the agenda of gender studies and its epistemological principles and for the political and philosophical order of contemporary democracies. if feminism has been perceived as a main driving force in the democratisation of democracies, it in turn should perceive to what extent queer theory has relaunched and deepened that process of “democratic democratisation”. this paper argues that democratic theory, hence also gender studies, must incorporate queer theory’s main assumption: i.e. the need to go beyond the modern gender binary. to this end, it is divided into two large parts. in the first one, it exposes how the concept of patriarchy, in its modern (neo)liberal version as "total ideology", has consciously couched the construction of gender in predetermined binary terms, and has provided the necessary mechanisms to prevent any deviation from this predetermined ideal. it also shows how, despite the often conflicting relationships between some strands of feminism and the queer agenda, so-called queer theory provides grounds and mechanisms like no others for questioning patriarchy in its binary roots and must hence be incorporated in mainstream feminist agenda and gender studies. the second part develops a critical approach to democratic theory which argues that queer stands for democracy at its purest and must be embraced by feminism in order to widen the demos and the democratic ethos. it also links this democratising attempt to the process of decolonising the main assumptions underlying western democracies. it shows how non-binary axioms can help critical reflections on capitalism and open new horizons when debating on the notion of pleasure within it. the last section offers some concluding thoughts on queer theory as a democratic and hence feminist utopia. 2. some considerations on gender and (trans) feminism 2.1. patriarchy, gender and identity the social construction of gender is arguably the most effective mechanism of socio-political control. the binary division between male and female enables subordinate relations over more than half the world's population. while other mechanisms of social control, such as race, social class or religion, are capable of partially subordinating important population groups, and while these mechanisms often work intersectionally with gender, gender in itself is of unmatched power. male patriarchal thought has focused its ethics on the value of law and justice, indeed a highly relevant value, yet one that is frequently cold and distant and, worse, nonoperative and unfair. some strands of feminism have, on the other hand, highlighted the value of caring, as complementary to justice and as based on feelings such as compassion, solidarity or responsibility (gilligan 1982). reason and feelings feed each other, talk to each other; furthermore, it is feelings, not reason, that ultimately motivate behaviour. thus, only an approach to knowledge that harmonises reason and feelings, that gives both of them their place, can lead us to act as moral agents, to assume moral responsibilities. rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 7 by contrast, the dominant hegemonic approach to knowledge imposed by the modern socio-political project, especially since the last quarter of the 19th century, attempts to separate economic motivations and psychology from all the other interests that make up social reality. as such it is, in karl mannheim's terms, a "total ideology". it presents reality through a merely functional, aseptic, neutral description, as a reality "concretizing itself to an objective description of the structural differences of the mentalities that operate on a different social base" (mannheim 1941: 51). however, as gramsci has already pointed out, the construction of any hegemonic apparatus that intends –that is even required– to conduct human behaviour also needs to consciously and intentionally recreate a whole new ideological field (or fields), to introduce a whole reform of the consciousness and produce a precise form of knowledge and socialisation in that knowledge (gramsci 1975). regarded in this light, the construction and expansion of liberalism should not be seen as a historical accident, the accidental product of the evolution of humanity through alleged progress towards a goal determined in advance. it is rather a highly structured ideological project, one concentrated on the will to create truths. it is all about a meta-project of domination, a complete hegemony, a supposedly secular theology, at the same time as a teleology that prefixes, announces and builds the way forward. the project creates truth through sets of inclusions and exclusions. nothing exists beyond these sets, beyond their classifications of good versus evil, correct versus deviant. truth devices require a logic of meanings that appear to be so inescapable as to be indisputable. these standardised truths become so entrenched that they deactivate and even erase in advance any attempt to question them, any proposal of otherness, to the point of diluting the very “will to truth” (foucault 1999). the power of the state is thus transformed and refined into biopolitics. the above gives rise to a kind of neoliberal governmentality based on an alliancefusion between the state and the market. together they exert an all-encompassing power of control, coercion and punishment, a much more efficient mechanism for the production of truth than the 19th century liberal state and, of course, than monarchical absolutism, roman imperialism or any other legal-political form of control to which we can go back. “for this will to truth, like the other systems of exclusion, is supported by an institutional support: it is both reinforced and accompanied by a dense series of practices such as pedagogy, such as the book system, publishing, libraries, like the societies of wise men of yesteryear, the current laboratories” (foucault 1999: 10). even when "the other" is impossible to hide, it is (it must be) interpreted as a deviation from the normal, a failure with respect to the model to be followed, an inadmissible alterity against which there are mainly two strategies. on the one hand, there is the recovery of the deviant and their return to normality. the mentally sick, the homosexual, the non-western savage, the shameless nationalist of a state minority ... all are offered the opportunity to redeem themselves and redirect their behaviour to fit within the limits of what is accepted, what is acceptable. on the other hand, there is the denial, expulsion, marginalisation of all those who are intrinsically different in biological and / or cultural terms, their placement without possible redemption forever at the outskirts of normality. among them are women, trans and non-binary people, those who are racialized as non-white, as well as, of course, those belonging to non-human species, the other “animals”. making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 8 from here on, the modern project of the enlightenment can be seen as a control machinery, in foucaultian terms, as a "normalizing" mechanism that naturalises as unquestionable truths whatever it conceptualises as “normal”. this includes dichotomies such as male versus female, white versus non-white, western versus others, wealthy versus poor, “capable” versus “incapable”, productive versus non-productive, hetero versus homo, cisgender versus trans, humans versus animal beasts. in this monitoring framework, identity is one of the most effective mechanisms for the creation and reproduction of binary dynamics and the relations of exclusion and domination deriving therefrom. it is so in as far as identity is interpreted as an impregnable and inescapable pattern of being for humans. the normalisation of certain identities against others has been the main instrument of subordination, exclusion and denial safely relied on by western states at least since the 18th century, when the imposition of normalised identities starts to be more easily recognised. western identity parameters will then be exported, transferred and imposed without negotiation to the rest of the territories, at the cost of denial of their original ones. from both a philosophical and an epistemic point of view, however, identity is not inborn but rather constructed through repeated performative actions. these are in turn informed at their core by existing social constructions of gender. when analysing and understanding how gender is shared and historically constituted, it becomes clear that it can be produced in a variety of different ways, including ways that go beyond binary patterns. this idea of diversity underlies the very notion of the “sex-gender system”, which gayle rubin enunciated as a social construction in 1975, in “traffic in women: notes on the political economy of sex”, notably as “a set of agreements by which society transforms biological sexuality into products of human activity, and in which these transformed sexual needs are satisfied” (rubin 1996: 44). in this line, and in the words of jeffrey weeks, identities are "necessary fictions" for us to understand our relationship with our body, with other people and with the environment. far from stemming from some ‘natural’ essence, they are but social constructions that link us to a community and are built through the affirmation of differences (weeks 1995). 2.2. feminism and transfeminism as the preceding reflections make clear, expanding the feminist subject beyond cisgender women is central to the feminist agenda of the 21st century. it is what carolina meloni has called the turn of feminist consciousness, a turn marked by its opening towards what she has termed eccentric subjects, broken and resituated, multiple and nonbinary. with this turn, women as a political category redirect the debate on the subject of feminism to a new dimension, a non-biologic dimension (meloni 2012). this breaks the unidirectional connections between sex and gender that weigh traditional sexuality, with a view to liberating and pluralizing it. this in turn questions the physiological limits of bodies and connects us with a new consciousness of what she terms “the technique”, the mechanisms of subordination institutionalised (hence normalised) by modernity. this epistemic turn places us, in sum, in a type of trans feminist standpoint, one that embraces queer theory. rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 9 queer theory is about questioning and subverting existing sex-gender categories (see foucault, sedgewick, butler, lauretis and others). traditionally, feminist theory has only been concerned with issues affecting (cis)women and (cis)women’s empowerment. the subjects of queer theory, on the other hand, are diverse. they include women, homosexuals, transsexuals, and those considered to be sex-gender deviants. at the beginning of the 1990s, in a series of highly notable works, such as transgender liberation: a movement whose time has come (1992), leslie feinberg defined “transgender” people as people who challenge the gender binary construction, as established mainly by white heterosexual males with the capacity to generate power discourses. the term “transgender” would then be about setting in motion a counter-history of sex-gender identity for the present and the future, as well as re-claiming oppressions of the past. teresa de lauretis is one of the first to have used the expression queer when speaking of both the post-feminist and trans-feminist condition of the feminist movement and practice for the century to come. at her basis is the epistemological turn begun by decolonial feminism and the theories of intersectionality, which have now become the object of academic philosophical reflection and social concern more broadly, as shown through cultural products in cinema or literature (1987). eve sedgwick kosofsky, with her epistemology of the closet (1990), also questions the gender binary in sexuality and sexual relationships, noting that the meanings of sex and sexuality are difficult to understand from a hetero / homo sexual perspective. the conception of sex is as varied as individuals and, of course, goes beyond heteronormative patterns where the male must be explicitly active, while the female corresponds to the opposite attitude. in gender trouble: feminism and the subversion of identity (1990), judith butler sustains that gender is in any case a philosophically diverse space, one that does not require unity to make itself visible and understood. what is queer, what is strange, what is deviant, what is degenerate, what is twisted, what is not conformed, what is not regulated ... all of it is perceived as gender, thus posing a challenge to the patriarchal and androcentric apparatus as a whole. even more noteworthy, they also pose a challenge to the historical foundations of a significant sector of feminism, mostly to that which has institutional weight and is therefore close to institutionalised power. in order to understand gender and its diversity we must go beyond the psychological or cultural imprint of biological or chromosomal sex. we must understand gender as a permanent and structured discursive practice, one that has been constructed in its hegemonic form around the concept of heterosexuality, understood as the norm of human relationships. the body itself is, in this sense, a “signifying practice”; it is or expresses a social practice insofar as the perception of sex (biological-genital) creates and manifests a certain social value. queer theory radically de-essentialises, or deliteralises (as it is also said), the categories of sex and gender. as such, it has served as a theoretical foundation and as a political tool to legitimise a series of groups classified (in the past) as "sexual minorities”, who (together with women) were, and continue to be, excluded, segregated and stigmatised by binary gender norms. making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 10 what is queer (cuir in an accepted castilianized version) is revolted against the order of the (inherited) patronymic discourses, not only in the field of sex-gendersexuality relations, but very especially within it (alabao 2020: 129-131). hegemonic narratives are imposed by means of institutional violence, through the creation of legal and social norms, often also through physical violence. emphasising the plurality denied and repressed by the constraints of hegemony, queer brings out the multidimensional layers of oppression. this is why queer theory is essentially and primarily intersectional. like intersectionality, it draws on the experience of black feminist thought and decolonial feminism, to expand into an intersectional critique that includes dimensions such as ageism, ableism, migrant-local confrontation, and the radically important eurocentrismnative people’s opposition. like queer theory, in turn, intersectionality explores the universe of possible combinations to present us with multiple polysemic subjects, subjects changing in identity, but also traversed and questioned by plural forms of oppression. they both universalise and particularise received feminism at the same time (hill collins and bilge 2016). intersectionality, like queer theory, thus becomes an indispensable element in the fight for women's rights, whatever their condition, thus overcoming the essentialising binary homogeneity originating from second wave feminisms (crenshaw 1991). through questioning the gender binary, they both also question the very concept of traditional liberal citizenship. as the citizenship of cisgenderism is being questioned, so is the possibility that gender occupies a different place within citizenship, as this can no longer be accounted for in the traditional dichotomous man / woman categories. the very notion of gender could even become dispensable in identity documents, an idea that is now being proposed in some countries, like argentina. 3. why is queer theory important to democracy 3.1. widening the “demos” inclusiveness or inclusivity is (should be) the most characteristic feature of a literal conception of democracy. democracies, however, have historically been constructed upon the exclusion of certain subjects from the idea of demos (losurdo 2005). in the most positive analysis, the liberal narrative of the history of democracy has mostly focused on the gradual appearance of new individual rights as a distinctive and defining feature of the expansive character of democracies. narratives of democracy, however, would be incomplete if they stayed within the realm of rights and their recognition, relevant though this is, without enquiring into their subject. the object of analysis should be expanded to focus not only on the content of the rights, but also on the construction of right-holders through dynamics of inclusion / exclusion of different people as legal subjects. the debate, both historical and contemporary, has prefixed a group of individuals capable of holding and exercising rights, while depriving others of such possibility. historically, the wealthy, white, male historical subject has been the predominant one. progressively, the notion of the democratic (political) subject has been broadened to include, albeit often only partially, women, other ethnic-racial groups and other “outsiders”, generally regarded as colonised. there remain, however, many areas of exclusion, groups “disabled” by the state. these rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 11 notably comprise migrant population, “undocumented” and invisible people, all of them equally supportive of the economic and socio-political functioning of our societies. they also comprise queer or, more generally, lgtbiq+ people. the inclusion of lgtbiq+ remains disputed in many places and areas; many remain non-existent for the administration. yet democratic citizenship is not consistent with leaving sectors of the population beyond its bounds. where the opportunities for partaking in participatory dynamics are hampered either legally or through political or social practice, it is not consistent to speak of a system as democratic. discrimination of lbtbiq+ people encompasses many areas. following surya monro (2005), this starts with language as a tool for creating and communicating knowledge and identity. the very ability to name others and ourselves presents important obstacles when referring to trans people, as these challenge the traditional pronouns in most languages. the inclusion of "others" as a genre does not solve the situation, since it seems to pigeonhole in a general sack everything that is not normative, that does not belong in the “point of reference", thus confirming the very normativity it tries to confront. the very process of linguistic labelling thus comes into question. do we name ourselves to recognise ourselves or to take control of ourselves? closely related to this are the bureaucratic mechanisms of demographic census and the statistical tools of the state, part of every state’s control of its territory and population. other forms of non-democratic exclusion of the non-binary are explicitly material. it is the case of economic exclusion. it is also the case of the spatial violence implied in the absence of standardised spaces for the non-binary in public or private spheres or institutions (schools, parliaments, toilets...). there is, furthermore, no total discrimination without legal support (monro 2005: 51-52). trans people are excluded from the direct protection of the law and are generally penalised by it in more or less explicit terms (sharpe 2002). other areas of exclusion, abandonment and expropriation have been, and continue to be, medicine, education or the media (whittle 2002; center for american progress 2020). the representation that the latter make of trans persons, as a whole as well as of single individuals, tends to range from contempt, rejection, disgust, or distance, to other perhaps less violent but equally damaging attitudes, such as condescension, paternalism or compassion, if not the self-serving commodification of a certain progressive aesthetic attires. 3.2. decolonised cosmopolitan democracy at the core is the project of decolonizing democracies, of stripping it of a long list of basic tenets that are both western and male, yet that have been constructed as global and neutral (güven 2015). this entails a project to open democratic citizenship to those whose sex-gender-sexuality identity options have been subject to mechanisms of exclusions. non-binary citizenship is in this sense decolonial, because it blows up the binary mechanisms that have helped to articulate (cis / hetero) male colonial eurocentric thinking. as has been pointed out from the ranks of critical studies, more specifically in decolonial theory, black feminist thought and more recently in critical race theory and intersectionality studies, the logic of the gender binary does not differ in essence making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 12 from the biological essentialism successfully claimed by modernity, and which even today survives in many ways: the essentialism that differentiates between the humanity of white beings and the animality (non-humanity) of blacks and, by way of extension, of all nonwhites. all differentiations revolve around this first one. as elsa dorlin has highlighted in la matriz de la raza, heteronormative control devices have required, on an imperialist scale, the presentation of non-white and nonmale bodies as pathologised beings. western medicine has long contributed to presenting non-white, non-straight, and non-cisgender bodies as caustic deviations from the initial prototype (dorlin 2020). the process of historical inquiry, however, brings us closer to old “new” conceptions that break with the digital relationship of opposites and excluding categories, as proposed by agueda gómez (2010). there is an abundant literature of analogical “sex / gender” relationships, understood as those where none of the values or meeting points of the imaginary are by definition excluded. these are more transitive identities, which can take multiple forms, which are not defined in exclusion and which do not have to have total durability (prigogine 1999). queer theory has revealed the discursive, fluid and transitory possibilities of “sexgender” systems which have existed for centuries in other scenarios, mostly pre-capitalist and pre-columbian contexts. think for example of the rrámuri model, the bijagó model, the hindu model of india, the zapotec model or the pre-hispanic mayan model (gómez 2010: 81-86). the ancestral thus becomes a point of reference from which to question the totalizing universe of the liberal capitalist. in most of these models, together with the traditional categories of man and woman or masculine / feminine, there exist other sexgender combinations that are also institutionalised as possible. this shows a diversity of gender roles and a scope of relationships, identities and sexual preferences that is more flexible and wider than our predetermined and socially accepted (binary) ones. although these are mostly patriarchal societies, they rest on a much more elaborate, complex, multiple and plural development of sexual intersectionality. it is for example the case of the muxe in the zapotec model, the hijras in india or the reneke / ropeke and nawki categories in the rarámuri people (gómez 2010: 76-81). they rest on a kind of social functionalism based on diversity. all this comes to show that the normalisation and biologisation that characterise western essentialism is nothing but an artifice and a discursive construction. as such it offers no further evidence of its foundation, it is not in accordance with human nature, nor is it consistent with physiological and affective diversity sex of the species as such. the performative character of gender makes it possible and urgent to generate transnational alliances, as cosmopolitan forces, across the excluded for reasons related to sex, gender and/or sexuality, just as alliances have been promoted transnationally on the basis of class consciousness. queer demands for recognition must be acknowledged and vindicated beyond the construction of the legal frameworks of the nation state, particularly as these are built upon structurally excluding pillars. in order to deconstruct and replace these pillars for inclusive ones, international solidarity is in order. rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 13 3.3. democracy as pleasure the dominant model aspires to control the different forms of pleasure, enhancing some over others, as long as they are controlled by the market. normative sexual acts are attached to concrete situations and circumstances accepted and permitted, protected by respectability and morally shared. both law and custom, as well as traditions, function as mechanisms to avoid deviation from the frameworks of normative (monogamous and heterosexual) relationships, most commonly within the bosom of the cisgender couple / family. while the erotic is commodified, while it is assumed as an acceptable object of consumption, there is an important rejection of the most personal and everyday forms of pleasure as a force for change, fulfilment, opposition and protest, also as it was conceived by audre lorde (1978). the market also subjects sexual forms according to the time (the nights after long and strenuous work days) and the places (generally the private spaces of private homes) stipulated for them as proper. following gayle rubin’s words: “modern western societies appraise sex acts [and pleasure] according to a hierarchical system of value. individuals whose behavior stands high in this hierarchy are rewarded with certified mental health, respectability, legality, social and physical mobility, institutional support, and material benefits” (rubin 2006: 158). pleasure, however, can also become counter-hegemonic, if we manage to endow it with transforming force, as a dimension of the process of personal, social and political empowerment. detached from the rules of the market, it can become an instrument of transformation. sexuality is no longer bound to the demands of reproduction, nor is it surrounded by the narrow space of monogamy and the familiar. it has broken through the timelines of productivity and the "productivity racks" through relative and even dissipate time frames. most importantly, pleasure and sexuality have been disconnected from the duality of heteronormative agents. subjects become plural in their volitional feelings, which do not have to be bought or sold, but only have to be enjoyed. the actors involved are multiple and the options and manifestations of affections and sex as well. queer involves us in the pre-constructed, taking up latent drives in some way from yesteryear, while launching a profoundly anti-hierarchical and intersectional challenge. queer pleasure can be seen as a sort of resistance to the narrow logic of pleasure and eroticism. it is an homage to a politics of radical sexuality and a signal of ways in which a politics of pleasure is actively queer. 3.4. (trans)feminism, democracy and capitalism from the dawn of the bourgeois liberal revolutions to the present, both feminist theories and feminist mobilisation in all their plurality have made huge contributions to the construction of democracy. the evolution of the practices and theoretical frameworks of democracies could not be understood without the democratisation that feminism has promoted within them. from diverse positions and in different historical periods, pigeonholed in waves, democracy is what it is thanks in large part to the progressive introduction of more egalitarian demands and visions, a process that making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 14 could hardly have taken place outside the framework of feminist theory and practice. however, the possibility of incorporating and broadening the idea of the political subject is stirring within feminist ranks not a few disquieting disagreements and internal contradictions. this is perplexing. the patterns of democratic citizenship have evolved and deepened very notably thanks to the progressive incorporation of feminist citizenship models, through public policies and regulatory changes that have allowed for a more egalitarian conception of the very idea of citizenship. yet some sectors of feminism seem to be contributing to some of the difficulties we encounter when defining a more transversal, intersectional and inclusive concept of citizenship. many of those difficulties stem from the intrinsic connection between (bio)politics and capitalism. the dissolution of the idea of the citizen in the “consumer-rightsholder” duo makes both the theoretical debate and the practical proposals for the expansion of the demos extremely difficult. capitalist liberal democracies rely on the prototypically cis-hetero normative model of (re)production, which places at its centre the conception of the heterosexual family with cisgender members, who produce-consume and reproduce. the androcentric-patriarchal hegemonic dominant discourse imposes a logic of subordination specially designed for the submission of every perceived alterity, of the “nonman”, to the pattern of what is considered “masculine”. this is especially evident in the historical moment of the conjunction of the liberal state and the capitalist economy. as silvia federici highlights in her caliban and the witch, the witch hunt and female sexual repression of early modernity were essential for the development of the new liberal capitalist hegemony, which accentuated the androcentric interests of domination inherited from yesteryear (federici 2010). the establishment of the nuclear family through marriage in capitalist liberal societies further corroborates the implantation of this model. in this sense, engels made an important contribution to our knowledge of women’s position in society and in history as subjects (objects) under androcentric domination, by underlining the basic mechanisms deployed by capitalist liberalism to establish its model of domination. in this line, he demonstrated that there is a connection between private property, monogamous marriage, and prostitution, while showing the connection between men's economic and political dominance and their control over female sexuality (engels 2010 -original 1884-). as all this comes to show, capitalism is not an aseptic, depoliticised and merely economic system; rather it has a clear link with liberal morality. capitalism is fundamentally the economic structure of liberalism in politics, its superstructure, and has assumed its moral postulates and its conservative idea of family and sexual conception. libertarian capitalism does not rest on the scenario of moral neutrality it wants to be seen as supporting. political, social, cultural relations and moral and religious value patterns are not alien to it, but a central part of its essence. the construction of an inclusive concept of citizenship is not part of the value baggage of capitalism. democracy, however, aims precisely at this, at expanding citizenship to make it all inclusive. this implies moving towards the recognition of inclusive citizenship, in its different and interdependent dimensions (civil, political and social, as theorised by t.h. marshall), and towards an inclusive construction of the status of rights-holders, of the holders of the rights (civil, political and social) that rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 15 enable the enjoyment of the different strands of citizenship, regarded as an indivisible set (marshall 1949 [1963]). feminism has fought for women’s full inclusion within democratic citizenship. in order to be coherent with itself, it has to continue fighting for the inclusion of every woman and everyone left out for reasons related to sex, gender and/or sexuality. the recognition of lgtbiq+ people as full democratic citizens must be part of this fight. their citizenship cannot be reduced to their role as voters, in line with classical liberalism, and as consumers, in line with capitalism. they must be recognised as legal and political subjects with full (civil, political, social) citizenship rights. far from remaining neutral in this struggle, far also from being an emancipatory force, capitalism adheres to constructions of sexgender-sexuality that support its inner structures, as is the case of the hegemonic binary, while also engulfing affective relationships of which it takes commercial advantage, by transforming them into commodities, into items for consumption (illouz 2017). not expanding its subjects to include lgtbiq+ people makes feminism complicit with the interests of capitalism and its power dynamics, including the subordination of ciswomen. 4. posthuman knowledge and utopia: concluding remarks critical posthumanities deal with increasingly different subjects. as jenny kleeman has argued, science and technology applied to both philosophical knowledge and technical artefacts accelerate the historical relationship that human beings have been having with scientific-technical advances. it is about overcoming the physiological defects or deficiencies arising, not only from genetic arbitrariness or body wasting, but also from the biological barriers of ascription. the process of sexual (and of course gender) selfdetermination relies on medicine, biology, cybernetics and other sources of knowledge, to imagine individuals who think with autonomy beyond pre-established strictures of what was received in the lottery of birth (kleeman 2020). it also invites us to investigate the possibilities of a plurality of masculinities and femininities, of a range of ways of living our lives. this tends towards an implosion of gender as a useful category of analysis, a result of the disentangling of sex, gender and desire (sexuality). queer theory also encourages us to focus on the utopia of a gender-free world (bornstein 1994). it is worth noting here the importance of the utopian component of queer literature, as well as the relationship between queer theory and the poststructuralist literature from which it draws heavily, and deconstructionist proposals such as braidotti's posthuman knowledge (2019) or donna haraway’s seminal works (cyborg manifesto). as has already been pointed out, since queer generates a generalised rejection not only in the normative field, but also and above all in the field of the visual, the transfeminist utopia is the ideal locus to posit, empower, highlight and strengthen the idea of the strange, the abject, the different and the monstrous (garcía 2016). all queer utopian literature shows an explicit rejection of liberalism / libertarianism, as does the more classical utopian feminist literature (think of the work of haraway, piercy, leguin, gilman, russ ...). far from being libertarian and capitalist (jones 2013), this is rather a deeply communitarian vision, the view of a world where individuals are members of making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 16 a community and conform ways of living much more based on collective care and reciprocal commitments and much less reliant on isolated rational actions (dolan 2008; nicholas 2009). in this sense, democracy could use the idea of a gender-free world to focus its attention on individuals, political subjects who embrace a community ideal regardless of their gender. what matters in this sense is who participates and the democratic ethos which they deploy when they do so, not so much their corporeality or their gender ascription, whatever it may be. this idea somewhat follows the parameters proposed by the notion of post-racial democracy as a way of going beyond the traditional western pattern of democracy. the central focus of democracies would thus be on political agents and any attempt to catalogue and label them would be avoided. a potentially inclusive democracy, in sex-gender terms and beyond, would ensue. the incursion into the utopian genre of the queer is fundamental for sex-gender transformation proposals, not only for a future way of living, but for our present ones. the trans version of these utopia stands as a stepping stone towards the final aim: the confusion of boundaries / a border war; the fight against biological essentialism and patriarchal control of nature; a critique of heterosexism; the deconstruction of public / private polarities; the fight against historicism in favour of no origin stories. the final goal is the queer utopia. the queer utopia of non-binary citizenship appears, in sum, as a democratic utopia of the place every democracy must aim to reach, indeed one of which we can already find perceptible traces everywhere. it is a place that may never come to be in a fully blown shape, but one that can gradually materialise and gain terrain through the transformations experienced along the way towards it (sargisson 1996; muñoz 2020). references alabao, n. (2020), “el fantasma de la teoría queer que sobrevuela el feminismo”, in mayor a. et alii. transfeminismo o barbarie. madrid: kaótica libros (pp: 127-151). bornstein, k. (1994), gender outlaw: on men, women, and the rest of us, new york: routledge. braidotti, r. (2019), posthuman knowledge, london: polity press. butler, j. (1990), gender trouble: feminism and the subversion of identity, new york: routledge. center for american progress (2020), the state of the lgtbq community in 2020. a national public opinion study. available at: https:// www.americanprogress.org/article/state-lgbtq-community-2020/ [accessed: 10 deecember 2021]. crenshaw, k. w. (1991), “mapping the margins: intersectionality, identity politics, and violence against women of color”, stanford law review, vol. 43 (6), pp. 1241-1299. https://doi.org/10.2307/1229039 dorlin, e. (2020) (original 2006), la matriz de la raza. genealogía sexual y colonial, tafalla (navarra): txalaparta. https://www.americanprogress.org/article/state-lgbtq-community-2020 https://www.americanprogress.org/article/state-lgbtq-community-2020 https://doi.org/10.2307/1229039 rafael vázquez garcía the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 17 dolan, j. (2008), utopia in performance: finding hope at the theater, ann arbor university of michigan press. engels, f. (2010) (original 1884), the origin of the family, private property and the state. london: penguin classics. federici, s. (2010), calibán y la bruja: mujeres, cuerpo y acumulación. barcelona: traficantes de sueños. feinberg, l. (1992), transgender liberation: a movement whose time has come. new york: world view forum. feinberg, l. (1998), transliberation: beyond pink or blue. boston, ma: beacon press. foucault. m. (1999) (original 1971), el orden del discurso, madrid: austral. garcía, d. (2016), rara avis. una teoría queer impolítica, barcelona: melusina,. gilligan, c. (1982), in a different voice: philosophical theory and women’s development, cambridge, ma: harvard university press. gómez, a. (2010), “los sistemas sexo/género en distintas sociedades: modelos analógicos y digitales”, revista española de investigaciones sociológicas, vol. 130, pp. 61-96 gramsci, a. (1975), el materialismo histórico y la filosofía de benedetto croce. méxico: juan pablos editor. güven, f. (2015), decolonizing democracy. intersections of philosophy and postcolonial theory, lanham: lexington books. kleeman, j. (2020), sex robots and vegan meat: adventures at the frontier of birth, food, sex and death, pegasus books, new york. haraway, d. (1985), cyborg manifesto, new york: routledge. hill collins, p. and bilge, s. (2016), intersectionality, london: polity press. illouz, e. (2017), capitalismo, consumo y autenticidad. las emociones como mercancía, barcelona: katz editores. jones, a. (ed.) (2013), a critical inquiry into queer utopias (critical studies in gender, sexuality, and culture), new york: springer. https://doi.org/10.1057/9781137311979 koyama, e. (2003) (original 2000), “the transfeminist manifesto”, in dicker r, piepmeier (eds.) a catching a wave: reclaiming feminism for the 21st century, boston: northeastern university press, pp. 244-262. lauretis, t. de (1987), technologies of gender: essays on theory, film, and fiction, bloomingtoon: indiana university press. https://doi.org/10.1007/978-1-349-19737-8 lorde, a. (1978), uses of the erotic: the erotic as power. new york: out & out books. losurdo, d. (2005), liberalism: a counter-history. london: verso books mannheim, k. (1941), ideología y utopía. introducción a la sociología del conocimiento, méxico: fondo de cultura económica. https://doi.org/10.1057/9781137311979 https://doi.org/10.1007/978-1-349-19737-8 making sense of it: why democracy (and feminism) needs to go beyond binary citizenship the age of human rights journal, 18 (june 2022) pp. 5-18 issn: 2340-9592 doi: 10.17561/tahrj.v18.7042 18 marshall, t-h. (1949 [1963]): “citizenship and social class”, in sociology at the crossroad and other essays, london: heinemann, pp. 67-127. muñoz, j. e. (2020), utopía queer. el entonces y allí de la futuridad antinormativa, buenos aires: caja negra editora. monro, s. (2005), gender politics. citizenship, activism and sexual diversity, london: pluto press. nicholas, l. (2009), “a radical queer utopian future: a reciprocal relation beyond sexual difference”, thirdspace. a journal of feminist theory and culture, vol. 8 (2), pp. 1-22. available at: https://journals.sfu.ca/thirdspace/index.php/journal/ article/viewarticle/lnicholas/248. [accessed: 10 december 2021). meloni, c. (2012), las fronteras del feminismo. teorías nómadas, mestizas y postmodernas, madrid: editorial fundamentos. otta, t. (2021) lxs niñxs de oro de la alquimia sexual. madrid: mondadori (novel) prigogine, i. (1999), las leyes del caos, barcelona: crítica. rubin, g. (1996), “el tráfico de mujeres: notas sobre la economía política del sexo”, in lomas, m. (ed.), el género: la construcción cultural de la diferencia sexual. méxico: porrúa (pp. 35-96). rubin, g. (2006), “thinking sex: notes for a radical theory of the politics of sexuality”, in p. aggleton and r. parker (eds.), culture, society, and sexuality, london: routledge, pp. 150-187. sargisson, l. (1996), contemporary feminist utopianism (women & politics), new york: routledge. sedgwick, e. k. (1990), epistemology of the closet. berkeley: university of california press. sharpe, a.n. (2002) transgender jurisprudence: dysphoric bodies of law. london: cavendish publishing limited. https://doi.org/10.4324/9781843144236 weeks, j. (1995), “valores en una era de incertidumbre”, in llamas, r. (comp.) construyendo identidades. estudios desde el corazón de una pandemia, madrid: siglo xxi editores, pp. 199226. whittle, s. (2002), respect and equality: transsexual and transgender rights, london: cavendish publishing limited. received: december, 14th 2021 accepted: march, 28th 2022 https://journals.sfu.ca/thirdspace/index.php/journal/article/viewarticle/lnicholas/248 https://journals.sfu.ca/thirdspace/index.php/journal/article/viewarticle/lnicholas/248 https://doi.org/10.4324/9781843144236 making sense of it: why democracy (and feminism) needs to go beyond binary citizenship abstract 1. introduction 2. some considerations on gender and (trans) feminism 2.1. patriarchy, gender and identity 2.2. feminism and transfeminism 3. why is queer theory important to democracy 3.1. widening the “demos” 3.2. decolonised cosmopolitan democracy 3.3. democracy as pleasure 3.4. (trans)feminism, democracy and capitalism 4. posthuman knowledge and utopia: concluding remarks references patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 121 patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia rudi natamiharja1 febryani sabatira2 muhammad fakih2 orima melati davey4 haidir anam5 abstract: the covid-19 pandemic demands adjustment in transmission control, including data transparency. indonesia is one country that discloses data regarding vaccines, boosters, and other health information through an integrated application called "peduli lindungi". however, this application is prone to data leakage because it uses a citizen identity number to register. at the same time, the application is mandatory for all indonesians to enter public spaces, especially international flights. this research will illustrate if indonesia's government could provide a bridge between patient privacy while providing the necessary data for transmission control purposes. this is normative research using secondary data sources. keywords: covid-19, data privacy, data transparency, indonesia, medical record confidentiality, patient rights. summary: 1. introduction. 2. research method. 3. result and discussion. a. challenges in pandemic era. b. the protection of patient’s confidentiality during the pandemic. c. socio-legal issue: overcoming existing social stigma through strengthening law enforcement in pandemic era. 4. conclusion. 1. introduction the world is facing a new type of virus (covid-19), which has become a pandemic worldwide. data compiled on 30th may 2021 shows that the virus has reached more than 170 million cases worldwide, including indonesia, with 1,81 million cases and 50.262 deaths(world metter, 2021). the virus outbreak has urged all parties, including the state government of indonesia, to reinforce each sector to combat the current problem, especially in strengthening the public health system (olivia, gibson, and nasrudin, 2020). during a global pandemic, society is encouraged to disclose their health condition transparently and accurately to health workers (known as tenaga kesehatan, or nakes in indonesian) 1 faculty of law, universitas lampung, indonesia (rudi.natamiharja@fh.unila.ac.id) 2 master of laws, universitas lampung, indonesia (corresponding author: febryanisabatira@gmail.com) 3 faculty of law, universitas lampung, indonesia (muhammad.fakih@fh.unila.ac.id) 4 faculty of law, universitas lampung, indonesia (orimadavey23@gmail.com) 5 faculty of law, universitas lampung, indonesia (haidiranam0@gmail.com) mailto:haidiranam0%40gmail.com?subject= patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 122 and to the public. information disclosure can help health workers address and treat the diseases they suffer. also, during a pandemic, information disclosure to the broad society acts as notice for the people they have been contacted with and hopefully can encourage their self-tracking efforts (mark rothstein, 2020). likewise, it helps the government track the virus and ultimately = conduct preventive measures and immediate treatment to deal with the virus down to the roots. however, the fact showed that many covid-19 patients in indonesia often refused to disclose their condition due to social stigma, which caused them to feel excluded and distinct from the surrounding society (sari et al., 2021). one example is taken from the case of muhammad rizieq shihab (mrs), an ex-leader of the islamic defender front (fpi). they refused to disclose his swab test result even though he received a positive status for covid-19 after holding a crowded event that violated health protocols (endri kurniawati, 2020). his action is considered irresponsible; recognizing the large number of participants who attended can potentially carry the virus and spread it in their surrounding environment. aziz yanuar, deputy general secretary of fpi, stated that patient privacy was why mrs's swab test was not disclosed. patient privacy is outlined under article 57 of law number 36 of 2009 concerning health and regulation of the minister of health of the republic of indonesia number 269/menkes/per/iii/2008 concerning medical records. in these provisions, the medical record is the patient's property and can only be used with the patient's written consent (siringoringo, hendrawati, and suharto, 2017). however, this legal basis was revoked by the indonesian hospital association health insurance compartment, dr daniel wibowo. he stated that the regulations are only relevant to regular times, not during a pandemic. he further stated that medical records were deemed to be disclosed for tracing purposes. his narrative aligns with the theory that the state of emergency will apply in “irregular” conditions. in a state of emergency, both law mechanism and substance will adjust to legal requirements needed at that time. emergency laws often shift and might regularly contradict existing laws (nuh, 2011). the challenge during the global pandemic is the necessity of public transparency and the social stigma adhered to the covid-19 patients. in addition to positive covid-19 data, public disclosure is the forcible repatriation of covid-19 patients by their relatives. this action is imminent, considering the infected patient will potentially become the subject of the new virus cluster in their environment. the existing situation is worsened by the fact that, in some cases, society often takes by force the deceased patients who suffered from covid-19. this action violates the protocols for the prevention and control of coronavirus disease (covid-19) issued by the ministry of health of the republic of indonesia (protokol kesehatan). the protocol regulates that every deceased patient under the status of patient under supervision and positive for covid-19 infections must be buried according to the protokol kesehatan procedure (arsil and ayuni, 2020). regarding this issue, awi setiyono, head of the public information bureau of the police public relations division, police brigadier general, said that the perpetrators could be subject to criminal offenses that violate multiple articles. these series of issues that emerged rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 123 during the covid-19 pandemic show the government's need for socialization and public awareness enhancement (angelika et al., 2021). during the pandemic, disclosing medical records for patients with positive covid-19 status was considered necessary to increase awareness of contacted people. the disclosure of medical records is indeed against medical ethics and patient confidentiality (kramer, brown, and kopar, 2020). however, in a pandemic, a medical worker's ethical obligation can be negated by the compulsion to protect others at risk (for the common good). for example, during the hiv/aids pandemic, there was a revolution in public perception about the importance of patient confidentiality because the reports bring more benefits to the public. in this case, society can use this information to determine prevention and advanced treatment measures. the patient’s confidentiality disclosure in the pandemic era is considered beneficial; therefore, the support for disregarding patient confidentiality is increasing significantly. it is helpful to inform third parties who received exposure to the virus. that said, enforcing patients' confidentiality with covid-19 becomes an ethical dilemma if it puts others at risk (kramer, brown, and kopar, 2020). nevertheless, given the high morbidity and mortality rates and the level of transmission of covid-19, confidentiality must be restrained by public health interests. it is also essential that medical workers and hospital systems report positive cases to public institutions so that data can be accurately tabulated and analyzed to inform treatment decisions. recently, indonesia established an integrated application that provides information regarding vaccines, boosters, covid-19 tests, and other related health information. this application is called peduli lindungi. citizen must input their identity card number to register for the application and when they need to download vaccine certificates. this application is mandatory for indonesian citizens. in its early days, people must scan barcodes to enter public places. currently (october 2022), people still use peduli lindungi to show their vaccination and covid-19 tests, especially in airports, because that is the only acknowledged proof. therefore, there is indeed data transparency regarding covid-19 transmission management. since it is mandatory and uses an identity card number, data protection should be on alert because peduli lindungi is vulnerable to data leaks. based on the dilemmas described in the previous explanation, the authors are interested in observing patient confidentiality provisions during the pandemic through an article entitled “patient rights during covid-19 pandemic: dilemma between data privacy and transparency in indonesia”. 2. research method this research uses a phenomenological-philosophical method. through this method, certain phenomena are viewed thoroughly, which views the society’s implementation that examines practical sociological issues. the research’s data are intertwined with indonesia’s legislation, summarized from various secondary data and legal materials. therefore, samples were obtained from library materials, especially those related to patient data confidentiality and government regulations on patient data protection. data discussions and conclusions were analyzed through qualitative approaches, including statutory, conceptual, and analytical approaches. furthermore, this research specifies prescriptive-analytical techniques related to the research’s problems. patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 124 3. result and discussion based on the previous matter, this research further discusses the indonesian regulations protecting patient confidentiality during the pandemic and the legal status of those responsible for taking the pandemic-suspected patient in force. a. challenges in pandemic era the covid-19 pandemic has caused several interest clashes, one of which is a conflict between individual and community interests. one of the most important implications of this concern is the impact of covid-19 on sociology, particularly interpersonal relationships. this study identifies several problems resulting from the pandemic. firstly, community stigmatization regarding infectious diseases. secondly is the dilemma between the rights to privacy of covid-19 patients’ identities. thirdly, the disclosure of public data on covid-19 patients involves various risks and concerns that may cause material and immaterial losses (gafur et al., 2021). one of the social issues worth discussing is the general public’s insistence on disclosing the identities of covid-19 patients for public safety. socially, it is true that disclosing one’s identity will raise public awareness of covid-19; however, it is not uncommon for this disclosing of one's identity to lead to acts of persecution as a result of public stigmatization of infectious diseases, particularly covid-19 infections. as a result, it is unavoidable that this policy will harm human privacy rights (firmansyah and haryanto, 2021). in the context of health, social stigma is a negative relationship between a person or group of people with specific characteristics and diseases. people may be labeled, stereotyped, discriminated against, treated separately, and experience a loss of status due to their perceived association with a disease during an outbreak. such care can harm those suffering from the disease and their caregivers, family, friends, and community (dai, 2020). people who do not have the condition but share some of the same characteristics as this group may also be stigmatized (setiawan, 2021). the current covid-19 outbreak has resulted in social stigma and discrimination against people of certain ethnic backgrounds and anyone suspected of having had to contact with the virus. the stigma attached to covid-19 stems from the fact that little is known about it. scientists, researchers, and medical professionals worldwide are still working very quickly to figure out strategies to deal with the novelty of this virus. the fear of the unknown has overwhelmed humankind evolutionarily (asrin, 2021). the stigma is oriented not only toward recovered covid-19 patients but also toward people in contact with the disease. these people are people who receive treatment and perform covid-19 examinations and even family groups with covid-19 patients. frontline workers, medical practitioners, nurses, police officers, soldiers, and others all bear the burden of social stigma. they were evicted from the neighborhood, denied access to their homes, and their families were rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 125 threatened (setiawan and suwardianto, 2021). the goodwill of the people they represent has been trumped by social stigma. this stigma also directly impacts the numerous cases of covid-19 patients' public body repartition. this reaction mainly causes community anxiety and fear about the spread of covid-19. the information obtained also has an impact on stigma. the formation of public opinion and trust is heavily influenced by information. according to a 2020 study of 100 respondents, more than 53% received information about the pandemic from social media and untrustworthy information platforms. the obtained data is erratic and frequently contains fake news (hoaxes) on irresponsible sites or websites. as a result, understanding of covid-19 decreases, and it is easy to stigmatize covid-19 patients. the ineffectiveness of the government also contributes to a lack of information distribution in providing information to the general public. poor information distribution mechanisms and the borderless nature of technology complicate the spread of false information among the masses (herawati et al., 2021). based on this, the authors identify several major issues that pose challenges to the community's handling of covid-19, namely: 1. government inconsistency in setting policies for handling covid 19 the covid-19 pandemic prompted the government to respond quickly, creating confusion among the public due to policy inconsistencies. providing adequate facilities does not accompany some community policies, such as social distancing and the use of masks. in addition, the home quarantine policy is not accompanied by material support and direct attention to the affected community. 2. information dissemination from the government is not effective and uniform the existence of a pandemic that causes many diverse opinions causes the information provided by the government to change frequently. in addition, the rise of difficulty in controlling false information is also a common challenge during this pandemic. 3. the social stigma that is also imposed on patients with covid 19 there are many cases of people infected with covid-19 who are unwilling to open their medical data to the public because they fear the community's stigma. this is caused by poor information distribution by the government regarding efforts to normalize the stigma that people with covid-19 are not to be ostracized. 4. the rise of cases of forced repatriation of patient's bodies infected by their families this is an integral part of the challenge of community stigma during the pandemic. the fear of the families of the bodies indicated by the pandemic virus will lead to public perception, prompting them to take extreme steps to 'cover up the truth. this is a big challenge considering that bodies infected with the pandemic can transmit the virus to their surrounding families. patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 126 b. the protection of patient’s confidentiality during the pandemic the 1948 declaration of human rights stipulates that everyone has the right to health for them as an individual and their family. in national law, health rights are protected explicitly under article 28h paragraph (1) of the 1945 constitution of the republic of indonesia (siringoringo, hendrawati, and suharto, 2017). however, article 28j paragraph (2) of the 1945 constitution states that restrictions on individual human rights, including individual health rights, must be co-occurred by morals, religion, and security values and must be aligned with the public interest. the provided stipulation is supported by article 4 of the international covenant on civil and political rights (iccpr), which states that in the matter of an emergency that potentially threatens the life of a nation, a state may take action to the extent that is necessary by the needs of the emergency. at this moment, the president is encouraged to declare a state of emergency to mark the government's forthcoming measures in wielding the current situation as needed (nuh, 2011). covid-19 is considered a life-threatening condition for public health, and therefore in line with the government's need to declare a state of emergency (shekhawat et al., 2020). regarding this matter, the government has enacted the presidential decree of the republic of indonesia number 12 of 2020 concerning the determination of non-natural disasters for the spread of corona virus disease 2019 (covid-19). this action taken by the government is a preventive measure to restrict the further spread of the virus. besides enacting the emergency law through president's decree, several other approaches are deemed necessary, such as disclosing patient confidentiality to the public (putri et al., 2020). the demand to disclose the identity of patients under the status of positive for covid-19 is considered inevitable to restrain the virus transmission in the broad society. the following chart 1 can illustrate the need to disclose a patient's record: chart 1. rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 127 the existing chart explicitly illustrates that common rights (public interest) will always precede individual rights (patient's interest). article 28f of the 1945 constitution of the republic of indonesia provides a legal basis supporting the action of disseminating necessary information to the general public (retnowati, 2012). however, to ensure the patient's confidentiality disclosure does not violate the patient’s rights, the government must formulate necessary procedures to minimize the possibility of patient personal information leakage. laws number 14 of 2008 concerning public information disclosure regulates that the government must enforce effective, efficient, and transparent governance, where these approaches are very much needed in times of pandemic. transparent and effective governance must be implemented since these measures require public assistance to subdue the pandemic virus spread (ruslana and sekarsari, 2020). in ensuring the protection of patient privacy during the pandemic, the decree of the medical ethics honorary council number 015/pb/k.mkek/03/2020 concerning medical ethics fatwa regulates that in certain circumstances, patient's data can be disclosed but restricted only to initials of the name, gender, brief health status (died/clinically critical/severe/recovered), age, and limited chronology to the transmission. for example, the description of potential transmission location to increase public awareness and epidemiological investigations) (fakultas kedokteran unad, 2020). in addition, to ensure these approaches run effectively, both government and the public must simultaneously work together to handle this emerging issue. the public will actively support these efforts by disclosing their covid-19 transmission status. at the same time, the government complies with its obligation to announce all information, including virus type, virus cluster, and the potential area of the newly detected infection. although it is understood that patient privacy is their right and can only be disclosed with the patient's consent, the realization of this approach depends on the public's sympathy and concern for the infected patient. the public must know that the state can effectively overcome this pandemic with its active role (kahar et al., 2020). in addition to the role of the government and society, medical workers also hold an essential role in combating this pandemic virus. regarding this matter, it is stipulated that disclosing patient data is a serious ethical violation. however, several law provisions accommodate an element of justification that permits medical workers to disclose patient data, as listed in table 1 below: patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 128 table 1. medical records disclosure provisions laws article content law number 29 of 2004 concerning medical practice article 48, paragraph (2) medical confidentiality can be disclosed to benefit the patient's health, complying with law enforcement requests, patient requests, or based on statutory provisions. law number 36 of 2009 concerning health article 57, paragraph (2) the provisions regarding the right to the confidentiality of personal health conditions do not apply in the matter of: a) statutory orders; b) court order; c) the permit in question; d) public interest; e) the interests of the patient. law number 44 of 2009 concerning hospitals article 38, paragraph (2) medical confidentiality can be disclosed to benefit the patient's health, complying with law enforcement requests, patient requests, or based on statutory provisions. law number 36 of 2014 concerning medical workers article 73 medical secrecy may only be disclosed for the interests of health service recipients, compliance with law enforcement purposes, the requests of health service recipients themselves, or yielding the statutory provisions. law no. 14 of 2008 concerning disclosure of public information article 10 paragraph (1) public bodies are required to immediately announce any information that may threaten many people's lives and public order. circular letter number: 02 of 2020 concerning guidelines for public information services during a public health emergency due to corona virus disease 2019 (covid-19) point 4 considering that the covid-19 pandemic condition is a health emergency, and the disclosure of public information systems is one of the efforts to tackle the pandemic virus, the central information commission mandates all parties6 to cooperate in informing the following matters: a. type of disease, distribution, cluster, and spread prevention b. strictly and limitedly informing the spread of the virus while protecting the personal data7 of the infected patient. c. strictly informing the spread of the virus as an early warning for people living in virusprone areas. d. informing the public about the availability of health facilities e. informing the deceased burial procedure for infected patients f. informing the cost and public health insurance g. informing the policy plan and its changes 6 all parties include the chair of the task force for the acceleration of handling covid-19, the minister of health of the republic of indonesia, governors, regents, and other agencies related to the handling of health emergencies 7 personal data includes the name, address, phone number, passport number, etc. rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 129 the abovementioned provisions are the justification for disclosing patient information to the general public. (kumala, 2020) these laws will be mainly related to the legal principle of salus populi suprema lex, which means that “the safety of the people is the most important law”. therefore, it is undoubtedly a necessary measure considering that the interests of the society must take precedence (shodikin and damayanti, 2017). c. socio-legal issue: overcoming existing social stigma through strengthening law enforcement in pandemic era in addition to the general refusal to disclose the infected patient's medical records, a social stigma is one inevitable issue that occurred during the pandemic times. the world health organization (who) is aware of this predicament and has distributed guidelines for preventing and dealing with social stigma. who defines social stigma as a negative perception of a person or group labeled, discriminated against, or considered different due to their status associated with certain diseases. social stigma does not only suffer by the patient but also by the patient’s family and relatives. one of the substantial impacts of the social stigma is that infected patients attempt to cover up their disease, even dodging hospital treatment out of fear of the perception coming from the surrounding society (organization, 2020; ramaci et al., 2020). it is worsened by the recent phenomenon where the social stigma inflicted on the family and relatives to conduct forced repatriation of the patient under surveillance and positive for covid-19. deceased covid-19 patient’s forced repatriation by family relatives often happens in indonesia. family relatives refuse to bury the deceased based on covid-19 health protocol because they are concerned of the stigma they will receive from the society. (sugianto, anna, and sutanto, 2021). therefore, social stigma plays a significant role in this pandemic, raising questions about the legal status of the parties who forcibly repatriate infected patients (waruwu, ediwarman, and marlina, 2021). one of the government's efforts to execute social control in indonesia is by implementing the peduli lindungi application. this application was established based on the ministerial decree no. 171 of 2020 concerning the enactment of the peduli lindungi application’s implementation as an effort to prevent covid-19 transmission. however, various aspects of people's lives make it simple for the peduli lindungi application to be optimally implemented, especially at the beginning of its implementation. it is important to note that data in the peduli lindungi application related to covid-19 vaccinations, boosters, and other health information are confidential because it involves patient data privacy. data confidentiality protection in peduli lindungi is vital because the application requires citizen identity card number that could be misused if leaked. peduli lindungi data’s safety guarantee from mistreatment was also a highlighted issue. the concern increased when president joko widodo's vaccination card data was publicized. the public was still determining whether other citizens' data's confidentiality was also secured. patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 130 moreover, there was also apprehension that a particular party would hack the peduli lindungi application. even though these were mere possibilities, data protection is a significant matter, and an investigation is necessary. from this situation, we can see that covid-19 caused indonesia to exclude patient data privacy disclosure considering the virus' transmission requires the mentioned information (herdiana, 2021). controlling the virus transmission means there is a social control progression. the government must also manage society's activities to prevent the virus from spreading. as a tool of social control, the law can coerce and yield an obligation to each party in its jurisdiction territory. on a practical level, this will also have a substantial impact, especially in responding to the issues of positive law implementation. the question then arises whether the legal framework applies to particular concrete situations, as gustav radbruch's theory states in his book “einführung in die rechtswissenschaften”. he formulated that the law must have 3 (three) fundamental values, namely, justice (gerechtigkeit), utility (zweckmassigkeit), and legal certainty (rechtssicherheit) (widowati, 2013). the role of law as a tool of social control can be illustrated through the following chart 2: chart 2. law as a tool of social control rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 131 the chart above implicitly explains that both formal and informal approaches must be taken to overcome social issues. if a social sanction is inadequate to overcome these existing problems, legal sanctions stand to present its coercive nature. this coercive nature encourages social control resulting from the "threat" presented by the law to society. therefore, in the case of the forced repatriation and retrieval of patients (both alive and deceased) under the suspicion of being exposed to covid-19, the law must be present to grant certainty to provide utility and justice to society (julyano and sulistyawan, 2019). regarding this matter, the indonesian national police stated that efforts to retrieve the deceased bodies of covid-19 patients in force violated the protokol kesehatan procedures and may be subject to criminal acts. the statement is in line with the purpose of criminal law: to alter the perpetrators and provide a deterrent effect for criminal actors (widowati, 2013). information on the criminal peril of these irresponsible parties has been disseminated through a telegram letter issued by the head of the state police of indonesia. in his letter, he stated, "if there are still parties who retrieve the deceased patients of covid-19 without regard to applicable regulations or by force, then those parties can be subject to criminal sanctions”. the legal basis of the letter is article 5 of law number 4 of 1984 concerning outbreaks of infectious diseases, which imperils the perpetrators with a criminal sentence of one year in prison or a fine of up to rp. 100,000,000 (one hundred million rupiah). another related legal basis is the provision in law number 6 of 2018 concerning health quarantine, which requires each person to comply with the implementation of health quarantine to prevent the ingress and egress of diseases that can cause public health emergencies (article 9). moreover, article 93 of the health quarantine law threatens anyone who does not comply with the implementation of this effort with a maximum imprisonment of 1 year and a maximum fine of rp. 100,000,000 (one hundred million rupiahs). in addition, the criminal code, as the primary source for criminal sentences in indonesia, regulates this emerging issue under article 214 of the criminal code jo. article 335 of the criminal code jo. article 336 of the criminal code imperils imprisonment of up to 7 (seven) years (wiryani et al., 2021). the police have implemented this plethora of provisions on several occurrences related to the forced repatriation of infected and deceased patients during the covid-19 pandemic. one case was taken from south sulawesi, where the police have determined 12 parties involved in 4 cases of forced repatriation of suspected covid-19 patients. the head of the public information bureau of the public relations division of the national police, police brigadier general awi setiyono, stated that the suspects were charged under various layers of articles. these articles are article 214 of the criminal code jo, article 335 of the criminal code jo, article 336 of the criminal code jo, and article 93 of the criminal code law number 6/2018 (yazid, 2020). although the telegram dissemination from the national police chief has solid legal ground, the author argues that this effort is still deemed insufficient, considering this emerging issue still occurs. moreover, the national police chief's telegram is excluded from the regulations hierarchy under law number 12 of 2011 concerning the legislation patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency in indonesia the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 132 enactment. thus, the binding legal force of telegram is considered inadequate to regulate society, and its effectiveness is still being determined. the emerging issue relating to the repatriation of infected patients shall encourage the government to effectively seek solutions to the current socio-juridical problems (nasir, 2017). the lack of public awareness and the absence of effort to control social stigma by the government are the main factors causing this issue. pandemic management requires consideration of every aspect, including the social aspect. policy strengthening by the government itself is only deemed sufficient to deal with problems like a global pandemic with the presence of social support (aji, wilonotomo, and nugroho, 2021). unfortunately, the government still needs to accommodate this legal need thus far. the legal status for irresponsible parties is still criminalized under the old legal grounds, which may have loopholes and is less relevant to the current situation. the peduli lindungi application, for example, was supposed to be a comprehensive report on covid-19 transmission control in indonesia. however, the application is very prone to data leakage, which shows a weak protection system. therefore, the authors believe it is essential to establish a legal framework to fill the legal vacuum and simultaneously achieve synergy between social development and law. a pandemic is a situation that requires coordination from various dimensions, either government, private, or society. the government may incite conducting efforts through the enactment of guidelines and a series of socialization. the guidelines are related to the covid-19 virus, social stigma, patient rights, and advanced prevention procedures as preventive measures, as well as establishing the legal grounds for criminal sanction applied for those who are non-compliant with the implementation of covid-19 as a coercive measure. (yusuf and sirait, 2022) concerning data privacy, partial information during the pandemic must be disclosed as it concerns the public's interests. however, data transparency is not freely exposed; it should be integrated into a comprehensively protected system. the dilemma between patient privacy and data transparency should be interlinked by a policy that could ensure patient privacy while still providing the necessary data for transmission control purposes, which indonesia is yet to fulfill. indonesia is trying to make ends meet in the information aspect (peduli lindungi). however, since it is not based on qualified protection, there is still a high risk of data leakage.(correia, rego and nunes, 2021) 4. conclusion in an emergency, the law is encouraged to accommodate legal needs simultaneously, even though it may have to conflict with the provisions that apply in ordinary times (nonpandemic era). the public interest will override individual interests, including fundamental rights. usually, the disclosure of information related to patient data is a severe violation of the code of ethics. however, disclosure of patient data is allowed if it is done for reasons of public interest. this permit is granted under article 48 of law 29/2014 on health, article 57 of law no. 29/2004 on hospitals, and article 73 of law no. 36/2014 on medical personnel. in addition to limiting the rights of individual patients, the government must also consider all aspects, including the social point of view. it is not uncommon to find rudi natamihardja, febryani sabatira, muhammad fakih, orima melati davey, haidir anam the age of human rights journal, 19 (december 2022) pp. 121-136 issn: 2340-9592 doi: 10.17561/tahrj.v19.7004 133 cases of forced repatriation of patients infected with covid-19 and the death of family members due to the existing social stigma. thus, it can be understood that social stigma is one of the problems that cannot be avoided during a pandemic; where if this aspect is not considered, it will cause further difficulties. national law has enacted many laws in punishing irresponsible parties based on article 5 of law number 4 of 1984 concerning outbreaks of infectious diseases and article 214 of the criminal code jo. article 335 of the criminal code jo. article 336 of the criminal code jo. article 93 of law number 6 of 2018. one of the government's efforts to overcome this is the need for the pedulilindung application based on the decree of the minister of communication and information number 171 of 2020 concerning the determination of care to protect applications. the application is implemented in the public favor to ensure that individuals who have met the minimum requirements can access public services, for example, in the field of transportation and how to check patient privacy data. this shows that the pandemic event established a policy that could allow access to individual privacy data for reasons of public interest (covid-19). however, this study shows that many of these laws could be more effective in dealing with this emerging problem. therefore, the government as a state administrator must accommodate these preventive and coercive legal needs. references aji, k.p., wilonotomo and nugroho, t.w.a. 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(2022) ‘challenges of implementing foreign manpower policy during the covid-19 pandemic in indonesia’, in advances in social science, education and humanities research atlantis press, pp. 406–411. received: march 6th 2022 accepted: october 25th 2022 patient rights during the covid-19 pandemic: the dilemma between data privacy and transparency i abstract 1. introduction 2. research method 3. result and discussion a. challenges in pandemic era b. the protection of patient’s confidentiality during the pandemic c. socio-legal issue: overcoming existing social stigma through strengthening law enforcement in 4. conclusion references doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 1 doctrinal debate on the age of contracting of marital in ibero-america diego aboi-rubio1, mercedes salido2 abstract: the united nations 2030 agenda for sustainable development, adopted in 2015, grants fundamental importance to the principles of equality and non-discrimination and aims to realize human rights for all. from this perspective, target 3 of goal no. 5 admonishes states to eliminate harmful practices such as female genital mutilation and child and early marriages. since adopting the sdgs, the u.n. has promoted raising the age of marriage: in nine countries, marriage is prohibited for children under 18 years; in the rest, it is allowed from the age of 16, with parental or judicial authorisation. this literature review article analyses the doctrinal debate on legislative reforms to raise the age of marriage in 21 latin american countries, in addition to spain and portugal. the searches have been done in dialnet, scielo, scopus, and google scholar; most records are in spanish and portuguese. keywords: child marriage, forced marriage, early marriage. summary: 1. child marriage. 1.1. the theoretical foundations and conceptual of the age of marriage. 1.2 early and forced child marriage. 1.3. from sociological reality. 2. methodology for searching bibliographic references. 3. search results. 3.1. on dialnet. 3.2. on scielo. 3.3. on scopus. 3.4. google scholar. 4. doctrinal debate on the age of contracting a marriage 4.1. child marriage as a cross-sectoral reality. 4.2. child marriage and human rights. 4.3. child marriage in the criminal field. 5. conclusion. 1. child marriage the ius connubi is a right of all men, as stated in article 16 of the universal declaration of human rights: men and women from the age of marriage have this right. this declaration does not establish age limits, so it does not specify when there is a child marriage. this lack of specificity continues in t he international c ovenant on civil a nd political rights (iccpr) in article 23. 2 recognizes the right of men and women of marriageable age to marry and find a family. on the other hand, in the convention on consent to marriage, minimum age for marriage and registration of marriages, the article 2 states: 1 professor of law and religion international, universidad internacional de la rioja, unir (spain) diegoaboy@unir.net. 2 professor of state ecclesiastical law; coordinator of the master’s in human rights. universidad internacional de la rioja, unir (spain) mercedes.salido@unir.net. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 2 “states, (…), should take all appropriate measures with a view to abolishing such customs, ancient laws and practices by ensuring, among other things, complete freedom in the choice of a spouse, establishing appropriate penalties where necessary and establishing a civil or other register in which all marriages will be recorded.”3 therefore, the convention does not expressly indicate any age but only speaks of the age of marriage and grants states parties a double power: to set the minimum age for marriage and to exempt them from the age requirement established in their domestic legislation. in 2000, at the millennium development goals, in third, n.20 says: “to promote gender equality and the empowerment of women as effective ways to combat poverty, hunger and disease and to stimulate development that is truly sustainable.”4 it made no explicit reference to child marriage. this lack of specificity made the goal difficult to achieve by 2015 (morán blanco 2022, p.110). the u.n. secretary-general ban ki-moon, in the report on the millennium development goals, recognized that despite the efforts, poverty persisted, and the report, therefore, suggested the need to concrete the fight against harmful practices that reflected gender inequality5. to avoid the indeterminacy of the previous documents, in 2015, it was included in the sustainable development goals (sdgs) -in target 3 del ods 5the eradication of child marriage. this is considered a harmful practice, as it robs children of their childhood and risks their lives and health. children who marry before the age of 18 are at higher risk of domestic violence and are less likely to continue attending school. their health and economic prospects are worse than those that delay the age of marriage. child marriage undermines a country's ability to provide quality health and education services6. child marriage is thus an example of gender inequality and discriminatory social and cultural norms and traditions that regulate the position of women in the family in the community and control women's freedom, including their sexuality (cano ruíz 2023, p.11). target 3 of the 5 sdgs results from the global movement to eradicate child marriage in which numerous governments, institutions, and ngos participate, focused on finding its causes and promoting critical legislative changes to eliminate it (vilán 2022, p. 227). 3 united nations (1962). available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/ convention-consent-marriage-minimum-age-marriage-and [accessed: 2 february 2023]. 4 united nations, general assembly (2000). available at: https://documents-dds-ny.un.org/doc/undoc/ gen/n00/559/51/pdf/n0055951.pdf?openelement [accessed: 15 mach 2023]. 5 united nations (2017) available at: https://www.undp.org/publications/millennium-development-goalsreport-2015 [accessed: 15 august 2023]. 6 unicef (2022). available at: https://www.unicef.org/es/proteccion/matrimonio-infantil [accessed: 2 february 2023]. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-consent-marriage-minimum-age-marriage-and https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-consent-marriage-minimum-age-marriage-and https://documents-dds-ny.un.org/doc/undoc/gen/n00/559/51/pdf/n0055951.pdf?openelement https://documents-dds-ny.un.org/doc/undoc/gen/n00/559/51/pdf/n0055951.pdf?openelement https://www.undp.org/publications/millennium-development-goals-report-2015 https://www.undp.org/publications/millennium-development-goals-report-2015 https://www.unicef.org/es/proteccion/matrimonio-infantil diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 3 1.1. the theoretical foundations and conceptual of the age of marriage it is well known that canonical doctrine conceives marriage as a natural institution before the law and the state, which appeared at the dawn of humanity, as far as its essence is concerned. this is how the stable affective-sexual union between a woman and a man is considered, which the state does not create but simply recognizes. marriage, as a natural and social reality, is a human right known as ius connubii. it is a right that connects with the person's dignity and that all legal systems must recognize, without prejudice to the possibility of establishing specific requirements for its exercise. among its characteristics is that it is a universal, inalienable, eternal, and erga omnes right. but this right to marry or be married is not an absolute and unlimited right. its exercise is an act of the autonomy of the will, the fruit of a free choice, which must be regulated by authority. according to the code of canon law in canon 1058: “all those who are not forbidden by law may enter into marriage.” the limitations of ius connubii must, therefore, be exceptional, expressly stated, and interpreted strictly. one of these limits — impediments — is the age of marriage, from which the physical and psychological capacity to marry is presupposed. this age limit, according to nieto cruz, a. (2020) reflects “the mentality of the society of the time about what conditions the subject who intends to marry must meet and what degree of maturity he or she must have. moreover, it is also a reflection of the position of minors in society and the level of protection we want to confer on them» (p. 382). in this regard, as we have seen, international treaties did not set an age limit for marriage but referred this aspect to the legislation of each country. however, child marriage is considered a global problem, prompting the united nations general assembly to recommend that states adopt legislative measures to establish a minimum age for marriage. since 2015. in the development goals (sdgs), the minimum age for marriage has been set at 18 years. this proposal has led to the reform of the laws of latin america, as we will see later. however, it has also raised an interesting doctrinal question about the theoretical and conceptual foundations of child marriage. the searches – in the main databases – on the subject show this interesting and necessary doctrinal debate and, in short, allow us to consider child marriage in a threefold aspect: as a cross-cutting phenomenon that has multiple causes, as a harmful practice that violates human rights and as a phenomenon that can be included in the criminal sphere. 1.2. early and forced child marriage the united nations defines child marriage as “any formal marriage or informal union between a child under the age of 18 and an adult or another child”. child marriage is a global problem with lasting and damaging consequences for children's lives. the doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 4 incidence of child marriage in some areas means that 4 out of 10 latin american women were married as children. a global and transversal movement is working to eradicate child marriage (vilán 2022, p. 227). one of its milestones was in 2015 when eradicating child marriage was incorporated into goal no. 5, target 3, of the sustainable development goals (sdgs). since then, the u.n. has advocated for raising the age of marriage. as a result of this initiative, since 2015, 9 countries in latin america have prohibited marriage for children under 18 years of age. in 9 countries, it is allowed from the age of 16, with parental or judicial authorisation (un. eclac 2021, p. 26). in the case of argentina and colombia, it is possible to marry for qualified reasons and with parental permission or judicial authorisation before the age of 14. country: man / woman dispensable by: year of the last reform7 argentina 18/18 the judge for minors under 16 legal representatives from 16 to 18 ley 26.994 of 2014 bolivia 16/16 written authorization from the authority paternal/ judge ley 603 of 2014 brazil 16/16 parents/the judge lei nº 13.811 of 2019 colombia 18/18 written permission from parents from the age of 16 ley 57 of 2020 chile 16/16 the parents ley 19.947 of 2004 costa rica 18/18 without exceptions ley 9.406 of 2016 cuba 18/18 without exceptions código civil of 2022 ecuador 18/18 without exceptions ley reformatoria al código civil of 2015 el salvador 18/18 no exceptions decreto 754 of 2015 guatemala 18/18 without exceptions decreto 13-of 2017 haiti 25/21 permission: from 25 to 18 years old, parents before 18/15 the president code civil d´haïti of 1826 honduras 21/21 from the age of 18 with parent/judge permission decreto 44 of 2017 mexico 18/18 without exceptions decreto dof of 03/06/2019 nicaragua 21/18 permission of your parents from the age of 16 ley 870 of 2014 paraguay 18/18 parent/judge permission ley 5.491, of 2015 panama 18/18 parents' children's judge from the age of 16 ley 30 of 2015 7 cepal leyes | observatorio de igualdad de género (cepal.org). [accessed: 22 february 2023]. https://oig.cepal.org/es/laws/9 diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 5 country: man / woman dispensable by: year of the last reform7 peru 18/18 express assent of the fathers decreto legislativo 295 of 2020 puerto rico 21/21 from 18/18 with permission from the parents ley 55of 2020 portugal 16/16 permission of your parents from the age of 16 código civil of 1966 republic dominican 18/18 no exceptions ley 1 of 2021 españa 16/16 if they are emancipated ley de jurisdicción voluntaria of 2015 uruguay 16/16 from the age of 16 you do not need a permit ley 19.075 of 2013 venezuela 16/16 from the age of 16 you do not need a permit sentencia tc 1353 of 2014 this literature review article analyses the doctrinal debate on legislative reforms to raise the age of marriage in the 21 countries of latin america, spain, and portugal. this community of countries is called ibero-america, and in many cases, shared not only language but also historical processes, internal complexities, and future challenges (celis, a. m. & domínguez, c. h. 2006, p. 12). the research results in spanish and portuguese place us in ibero-america, as they are the languages of this territory. similarly, the french research refers to results for french-speaking africa and france's overseas territories. searches in english bring results from anglo-saxon countries, the usa, the u.k., the commonwealth, and the asian region. sdg no. 5, in its target 3, proposes to “eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.” this is why the search for doctrinal debate should be extended to the terms early and forced marriage. the doctrine asks to what extent child marriage is always forced or whether minors lack the capacity in all cases to make their will to get married. “the consideration of forced marriage as a violation of human rights is determined by the recognition of the free and full consent of the contracting parties as the core element of the marriage contract” (torres rosell 2019, p.33). therefore, it is not easy to distinguish between forced marriage and arranged marriage; in the latter there may be a certain degree of coercion, where persuasion is a grey area between consent and resignation. finally, in the criminal field, we cannot forget that forced marriage has been classified in some countries. for example, in spain, art. 178 of the criminal code establishes the crime of marriage with minors; in portugal, art. 154.b of the criminal code classifies casamento forçado and art. 155 classifies forced marriage contra pessoa doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 6 particularmente indefesa em razão de idade. in colombia, art. 18 of the criminal code includes servile marriage as a type of human trafficking. the sdgs, specifically sdg 5 in its target 3, have promoted legislative reforms in ibero-america to raise the age of marriage. as a result of this initiative, numerous studies have been published that attempt to answer important questions such as: what is the sociological reality of child marriage in ibero-america? from which areas has child marriage been studied in ibero-america? what has been the doctrinal debate on these legislative changes? is child marriage always forced? is forced marriage an autonomous offense or part of a broader offense such as human trafficking? the following study will attempt to answer all of these questions. 1.3. from sociological reality as a starting point, there is an insurmountable need to analyse the sociological reality of child marriage in ibero-america: knowing this actual situation will allow us to verify the breadth and seriousness of the problem and the degree of need for a response in the legal field. in order to understand the sociological reality of child marriage, we have the work carried out by the economic commission for latin america and the caribbean (eclac), child, early and forced marriage and unions: harmful practices that deepen gender inequality in latin america and the caribbean, which states that “child, early and forced marriage and unions (cefmu) are a reality in latin america and the caribbean, albeit not a highly visible one” (2022, p. 5). latin america and the caribbean is the only region in the world where child marriages have not decreased in the last 25 years. this is a complex phenomenon associated with gender inequalities, violence, poverty, school dropout, adolescent pregnancy, and inadequate, limited, or non-existent legal and political frameworks, and it puts the present and future of girls and adolescent girls in jeopardy (p. 25)8”. prevalence rates in lac region and case study countries (taylor a.y. et al.2019, p. 30): country: married by age 15 (%) married by age 18 (%) brazil 11 36 guatemala 7 30 honduras 8 34 8 comisión económica para américa latina y el caribe (cepal). available at: https://www.cepal.org/ es/publicaciones/47552-matrimonios-uniones-infantiles-tempranos-forzados-practicas-nocivas. [accessed: 21 february 2023]. https://www.cepal.org/es/publicaciones/47552-matrimonios-uniones-infantiles-tempranos-forzados-practicas-nocivas https://www.cepal.org/es/publicaciones/47552-matrimonios-uniones-infantiles-tempranos-forzados-practicas-nocivas diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 7 another source of information is mira que te miro9 website, in which different associations collaborate, and a section is dedicated to early child marriages and unions in latin america. on this website, we can find the legal, political, and programmatic framework, resources, and awareness campaigns against child marriage. the countries analysed meet the standards in the first two areas but have yet to develop the programmatic framework, especially, the awareness campaigns to eradicate child marriage. in 2019, the authors infante, m. p., & castro, s. (2019), presented the influence of child marriage in cuba before the reform that was carried out in 2022. child marriages or early unions, understood as de facto unions, are among the most harmful practices with the most significant negative impact on the future of children and adolescents. the rupture that is generated in the social fabric as a consequence of the impairment of the right to freedom and autonomy of minors, who end up being the most affected by this practice, is irreparable: girls married in childhood have few possibilities of attending school or concluding their schooling, they are treated as adult women without them having been able to decide about it. the authors consider that eradicating child marriage must be part of the political expression of citizenship to regenerate its social fabric (p. 1). another study is by azicri, i., montián, t., riquez-bark, b., & yncio, r. (2020) on the problem of child marriage from the centre for international studies. the authors consider, following unicef, that girls who marry before the age of 18 are at greater risk of domestic violence and are less likely to stay in school. azicri, i., et al. survey the number of child marriages that take place. the impact of truancy and even expulsion from school is higher in these cases; the authors consider the domestic labour of young wives to be a form of exploitation. they provide data from argentina: between 20112016, almost 40 % of young wives did not reach the last year of secondary school, mainly affecting the country's poorest regions where child marriage has an incidence of 60 %. in their conclusions, they call for a more significant commitment from states to address the problem of unpaid domestic work and child exploitation from a comprehensive approach. the international legal framework must be adopted and implemented, and “loopholes such as the possibility of child marriage with parental consent” must be avoided. “girls should be in school and not in their husband's house” (azicri, i., et al. 2020, p.11). the virtual knowledge centre to end violence against women and girls, in january 2011, proposed that drafters of forced marriage laws should set the minimum age of marriage at 1810. the committee on the elimination of discrimination against women (cedaw) has a database of country reports.11 in 2022, we find the reports of guatemala, honduras, 9 available at: https://miraquetemiro.org [accessed: 5 january 2023]. 10 fondo de población de las naciones unidas (unfpa). available at: https://www.unfpa.org/es/matrimonioinfantil [accessed: 12 february 2023]. 11 comité para la eliminación de la discriminación contra la mujer (cedaw). available at: https://www. ohchr.org/es/treaty-bodies/cedaw [accessed: 23 january 2023]. https://miraquetemiro.org https://www.unfpa.org/es/matrimonio-infantil https://www.unfpa.org/es/matrimonio-infantil https://www.ohchr.org/es/treaty-bodies/cedaw https://www.ohchr.org/es/treaty-bodies/cedaw doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 8 bolivia, venezuela, and chile. in 2021, the 10th report on uruguay and the 8th report on brazil were made. all of them include the latest legislative changes that have raised the age of marriage to 18, although some countries allow it, with parental or judicial authorisation from the age of 16. each state is recommended to: “effectively enforce the minimum legal age of marriage (18 years) for both girls and boys, without exception, and strengthen efforts to raise awareness of the harmful effects of child marriage and early unions on the health and development of girls”. maria cristina perceval, unicef regional director for latin america and the caribbean. “girls who are forced to marry or be in union before the age of 18 are deprived of immediate and long-term opportunities that ultimately affect the fulfilment of their rights”12. 2. methodology for searching bibliographic references the term has been searched for: matrimonio infantil/casamento infantile/child marriage y matrimonio forzado/casamento forçado/forced marriage in the legal sciences section of the dialnet, scielo, scopus, and google scholar databases. the searches start in 2015, the year of the adoption of the sdgs, until 2022. the 2030 agenda, in target 3 of goal no. 5, calls on states to eliminate harmful practices such as female genital mutilation and child and early marriages. this study is territorially framed in ibero-america: the 21 countries of the americas, plus spain and portugal. the caribbean and the antilles are excluded because of their complexity: there are 13 independent nations, three french departments, and two colonies belonging to the netherlands, six to the united kingdom, and one to the usa; their particularity would require a specific study. the sources' languages and doctrinal debate are spanish and portuguese. the search was extended to the terms child marriage, forced marriage, but the number of entries for articles published in english on child/forced marriage in ibero-america is shallow (6 entries compared to 228 in spanish and portuguese). other terms have been excluded: matrimonio precoz in dialnet, there are 26 documents; in scielo there are no entries; in scopus and google scholar there are 9 entries. they largely coincide with the term child marriage, which justifies their exclusion. the term matrimonio de menor has also been excluded from the search as it is confusing with the issue of filiation, parental authority, or the interests of the minor. the result in dialnet is 470 records, duplicated with the entries for child marriage. 12 unicef (10-april 2018). available at: américa latina y el caribe: una década perdida en la reducción del matrimonio infantil (unicef.org). [accessed: 23 january 2023]. https://www.unicef.org/es/comunicados-prensa/am%c3%a9rica-latina-y-el-caribe-una-d%c3%a9cada-perdida-en-la-reducci%c3%b3n-del-matrimonio diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 9 the searches in the 4 databases can be systematised in the following table: books chapters articles theses excluded total dialnet matrimonio infantil 2 8 17 6 33 matrimonio forzado 11 40 92 25 168 excluidos -4 -9 -31 -13 -57 matrimonio de menores 470 excluded matrimonio servil 26 excluded matrimonio precoz 26 excluded scielo matrimonio infantil, 2 2 matrimonio forzado 3 3 casamento infantil 5 5 casamento forçado 1 children marriage duplicated 28 scopus children marriage 6 6 scholar matrimonio infantil 11 4 11 matrimonio forzado total 13 48 136 31 228 between 2020-22, 14 studies have been published on the sociological reality of child marriage, from the field of health and education. regarding marriage and human rights, the debate was opened in 2015, with the legislative reforms to adapt them to sdg no. 5. there are entries from 2022, 2018, and 2015. regarding forced marriage, most of the references correspond to spain and portugal since in 2015, they were classified (ljv 15/2015 and lei 83/2015). in 2015 we found 3 articles; in 2019 another one, and the most recent is from 2022, which refers to law 8/2021 of spain, which establishes that child marriage is null and void. in 2022, brazil and mexico have presented initiatives to introduce the crime of forced marriage in their legislations, an issue that is being debated in their parliaments. the current trend is to include forced marriage as part of gender violence, addressed in 8 theses in 2022, and as a form of the crime of human trafficking or as a new form of slavery. 3. search results 3.1. on dialnet firstly, the dialnet search engine is used, as it is the primary resource in spanish. the terms used are those used in the sdgs and the usual vocabulary of u.n. declarations, legal texts, and doctrine. as mentioned above, some terms have been excluded due to doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 10 confusion. for example, matrimonio de menores refers to filiation, to the protection of minors; other examples are matrimonio servil y el matrimonio precoz, since their influence is in the minority in the doctrine. so, the search has been done with child marriage and forced marriage. in dialnet we only found resources in spanish, so we excluded searches in portuguese and english. the time frame is 2015, the sdgs' approval date, and the territorial scope is ibero-america. the result for the term matrimonio infantil, in the field of legal sciences, is 33 documents: 2 books, 8 book chapters, 17 articles, and 6 doctoral theses. the results of the term forced marriage are 168 documents: 11 books, 40 book chapters, 92 journal articles, and 25 doctoral theses. removing duplicate entries resulted in 111 entries, 7 books, 31 book articles, 61 journal articles, and 12 doctoral theses. the movement to end child marriage is a transversal phenomenon. sdg no. 5, target 3, is related to the rest of the sdgs. therefore, the authors approach child marriage from the legal framework of its regulation in each country, but also from the health and education sectors. the dialnet results on child and forced marriage will be systematised in subsequent sections as a transversal reality that affects human rights and which, in some cases, is classified as a crime. 3.2. on scielo this database finds texts that address the issue, focusing on latin america. the deadline is 2015. as the number of texts is small, they are described below. with the term matrimonio infantil, in the law section, two entries are found: the first, by nares hernández, j., colín garcía, r., & garcía suárez r. (2015), regarding the “human rights of girls and boys and the prohibition of child marriage in international treaties”. the second is by gonzález alcántara, j. l. (2020), on the constitutional issue of “child marriage and age exemption”. this article presents his vote in the unconstitutionality action of 22/2016, about eliminating the age exemption for severe and justified causes in mexico. gonzález alcántara, against the majority of the court, withdraws from the argument concerning the distribution of competencies about establishing the “minimum age” for marriage. he considers that the age exemption and the institution of emancipation belong to the federal state and not to the federal states. with the term matrimonio forzado three entries are found: the first is from 2020 by pérez, l., nazar, j., beutelspacher, a., méndez, m.r., & ramírez lópez, d. k., which shows the results of “forced marriage and adolescent pregnancy in indigenous women in amatenango del valle, chiapas. a glance at gender relations and reproductive change”, a thesis that provides data on the influence of https://search.scielo.org/?fb=&lang=es&count=15&from=1&output=site&sort=&format=summary&page=1&q=matrimonio+infantil&where=&filter%5bsubject_area%5d%5b%5d=*&filter%5bwok_subject_categories%5d%5b%5d=* diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 11 marriage in this area of mexico, how it has been reduced by the increase in education and paid work. the second entry is by henao trip, m. i. (2008), who considers eradicating child marriage as part of the “fight against human trafficking: challenge for colombia in the 21st century”. she recalls that article 188-a of the colombian criminal code includes servile marriage as a form of trafficking in persons. it was classified by law 985 of 2005. paragraph no. 3 of art. 188 reads as follows. 3 of art. 188 reads as follows: “for the purposes of this article, exploitation shall be understood as obtaining economic benefit (...), servile marriage”. the third entry is the article by casique, i. (2006), in which she asks: when can i say no? this is an approach from the perspective of female empowerment in mexico. it deals with sexual violence within marriage. the search for the term casamento infantil in portuguese resulted in five entries, three from the field of health, one from education, and one from sociology. the first three papers are cardoso a. & valério c. (2022), about child marriage from the health field. the second is by the authors santos cargnin, j.s., luna, j.s., de aguiar, d. m., rodrigues, b. t.c., de azevedo filho a., d., & rodrigo pinheiro, s. (2021); a., d., & rodrigo pinheiro, s., which address the issue of violence against women in the western amazonia. the last is a paper by silva a. j. c., trindade r. f. c., & oliveira l. l. f. (2020) regarding the presumption of sexual abuse in pregnancies in children under 14 years. from education: ferreira pires, s. m. (2009), presents romantic love in children's literature as a gender issue. from sociology: veiga, m. v. a., & loyola, v. m. z. (2020), states that poverty is one of the reasons for child marriage. this publication provides testimonies of young wives who hope to improve their poverty situation because they are women and black. the authors consider that child marriage is part of the inequalities and discrimination women suffer because of their gender, class, and race. the term casamento forçado has only one entry from 2012 and is left out of this paper because it deals with the issue of paternity research, not child marriage. if we expand the search in english, child marriage gives us 28 results, 5 duplicated with casamento infantil, and the rest are out of our field of study. there are 11 entries in this repository, adding up all the searches in spanish, portuguese and english. most of them deal with the topic of health (3) or sociology (3). there is one article from the perspective of education and one from criminology. only two are of interest to our research from a legal perspective in terms of legislative reforms on the age of marriage, and they already appear in dialnet. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 12 3.3. on scopus in this search engine, we found a bibliography in english, so the term used was child marriage. there are 6 entries: two entries are of a historical character: mccaa, r. (1994) and mumford, j. r. (2020). the third entry is the article by authors kohno. a. et al. (2020), in which they searched nine english-language databases in areas such as public health, psychology, and social sciences between 2008 and 2018 for factors influencing child marriage. twelve studies on the impact of human insecurity and conflict, as well as legal issues, were included. according to the authors of this article, there is a need for papers that address the issue of child marriage in latin america, one of the areas where child marriage is most prevalent. the authors conclude that, despite global progress in expanding legislation against child marriage, the legal framework needs to be sufficiently enforced in many settings. most studies are on the middle east, africa, and south asia. the same authors presented a study on the activities of adolescent girls in malaysia on early marriage, which is outside the geographical framework of this study (kohno, a. et al. 2021). the article by siddiqi & greene (2022) systematically investigates the influence of child marriage. searches were conducted in four languages (english, spanish, portuguese, and french), spanning 20 years (1 january 2000 to 31 december 2019) and including grey and peer-reviewed literature in all major geographic regions of the world. the review identified and analysed 1,068 publications from an initial 4,081 abstracts reviewed. they found studies on child marriage's influence, circumstances, and consequences. including publications in spanish and portuguese brought results from latin america and the caribbean, mozambique, and europe. results in french are from west africa and the maghreb. searches in english include studies on the influence of child marriage in other areas, such as asia. vilán, a. (2022) considers that although international and national laws prohibit child marriage, millions of girls are married yearly, a trend exacerbated by the covid-19 pandemic. the movement to eradicate child marriage has increasingly gained momentum since adopting the sdgs. the article presents testimonies from victims of child marriage to generate empathy and mobilise commitment from political decision-makers to end the practice. newspaper articles, reports, and interviews with activists in the united states and latin america who have advocated for legislative reforms to raise the age of marriage in iberoamerica are included. it concludes by presenting the new challenges facing the movement. wiedemann, d. (2021) believes that although american countries have raised the legal age of marriage since the sdgs were adopted in 2015, the number of child marriages in latin america does not reflect these reforms so far, as the legal age of marriage is only one factor among many. legislative reforms only regulate civil or canonical marriage where it is recognised, leaving informal or indigenous unions out of the statistics. legal diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 13 reforms have limited the ability of minors to marry before legal age but have not stopped the socio-economic factors that promote it. of the six entries described, the first two must be dismissed as being outside the time range of this study. kohno. a. et al. (2020) present in their two papers the factors influencing child marriage from the sociology field. from the article by siddiqi, m., & greene, m. e. (2022), we are interested in the section dedicated to latin america. searches in french and english are beyond the territorial scope of this paper. the article by vilán, a. (2022), which presents the movement for eradicating child marriage, is very interesting and shows how many agents are committed to sdg no. 5, target 3. wiedemann, d. (2021) reminds us that the legislative reforms carried out in recent years are not enough. 3.4. google scholar the term matrimonio infantil has 15 entries, which address the issue from different fields. for example, in the field of education, we can cite fernández-quiroga, a., terróncaro, t., & cárdenas-rodríguez, r. (2022), “the role of education for the gender-based violence prevention” and the authors soares, r. m. f., & domingos, i. m. (2022) who raise the issue of human rights as a cultural experience. monedero, a. (2022) participates in the monograph entitled social victims and victims of crime: personal and social promotion through intervention, with his chapter on “minors who are victims of child marriages: re-reading after the publication of organic law 8/2021”. on the other hand, squillacioti, c. (2021) considers “child marriage: a gender issue. underlying causes, consequences, legal forms and strategies for eradication”. from sociology, lee-koo, k., & gordon, e. (2022) analyse the causes and effects related to child marriage among adolescent girls in conflict contexts based on research in four crisis areas: lake chad (niger, nigeria, and cameroon), south sudan and uganda, lebanon (beirut) and bangladesh (cox's bazar). it is beyond the scope of this article. other papers are outside this article's scope, such as that of gamboa ruíz, j. (2022). as grey literature, we can quote the theses of ignacio, s. (2022), public policies on child, adolescent and forced marriage: the cases of chiapas and oaxaca, and that of jiménez rojas, b. (2022), vulnerability factors influencing child marriage and early unions among adolescents. as a master's thesis from the university of alcalá, directed by cano ruíz, i., there is the paper of avis morales, i. (2022), titled early and forced marriage. an analysis of the mechanism for its eradication. at the universidad de santander de colombia, we find (2022) the constitutional rights of girls to decide about de facto marital union of tribal peoples in colombia: the kankuamo case, by fuentes fuentes, y. s., quintero álvarez, c. r., & meza-altamar f., m., directed by medina noriega e. j. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 14 what stands out about these papers is, firstly, that they are very recent, and also that they seek to analyse the problem of child marriage and propose strategies for its eradication. there are theses from spain, mexico, and colombia, which allow us to know the influence of marriage in specific areas such as the state of chiapas, oaxaca in mexico, or the tribal peoples of colombia. with the term forced marriage, we found 17 entries, of which 9 must be excluded. galán, e. c. d. (2022) presents in his article “forced marriage and international crime: a new normative and jurisprudential trend”. martínez, y. (2022) discusses forced marriage from a sociological perspective in the colombian caribbean. on the other hand, vidal gallardo, m. (2022), proposes measures for “comprehensive protection of children and adolescents from the violence of forced marriage,” and ramos, m. j. s. (2022) presents “comprehensive reparation of the damage in the crimes of human trafficking and smuggling”. finally, there are several entries of final degree papers: sánchez ángeles, v.g. (2022), forced marriages: violation of the human rights of girls, adolescents, and women in la montaña and the costa chica of guerrero. another example is sánchez piñero, e. (2022), “forced marriage as a type of human trafficking. perspective of andalusian social workers on the practice of forced marriage”. finally, we can quote rincón garcía, e. (2022), “trafficking in human beings for the purpose of forced marriage and forced marriage: double classification”. although they are not texts published in journals, they show the interest that the subject arouses in university studies. 4. doctrinal debate on the age of contracting a marriage 4.1. child marriage as a cross-sectoral reality as mentioned previously, the sustainable development goals (sdgs) are not watertight compartments; progress on one implies progress on the others. thus, sdg no. 5, in its target 3, is not a goal isolated from the other actions the u.n. promoted to achieve the sdgs by 2030. the u.n. general assembly, at its 29th session, adopted resolution 29/8 of 2 july 2015, which states: “deeply concerned also that poverty and lack of education are among the factors that contribute to the practice of early and forced child marriage, and recalling that child, early and forced marriage entail a significant obstacle for women and girls in terms of access to education or completion of their education.”13 13 available at: https://documents-ddsny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?open element [accessed: 3 january 2023]. https://documents-ddsny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?openelement https://documents-ddsny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?openelement diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 15 the sdgs are intertwined, so for sdg no. 3, promoting education can effectively end child marriage. the ngo save the children works to end child marriage transversally across all thematic areas through its education, health, and child protection plans. it is not enough to promote legislative changes; child protection systems must be strengthened. ending child marriage will not only contribute to sdg target 5.3: “eliminate harmful practices such as child, early and forced marriage...” but also to many other sdg targets, such as eradicating extreme poverty (target 1.1), reducing maternal death (target 3.1), eliminating gender inequalities in education (target 4.5), ending violence against all women and girls (target 5.2), universal access to sexual and reproductive health and rights (target 5.6), and end all forms of violence against children (target 16.2)”. in this way, veiga et al. (2020) considers that poverty is one of the causes of child marriage. in order to escape the poverty of the family of origin, child marriage cannot become the only way to improve the living conditions of minors. therefore, poverty eradication tackles one of the roots of child marriage. “com a decisao de casarem, as meninas esposas manifestam a esperança de melhoranas condiçôes de vida (p.74)”. similarly, sdg no. 3 plans to “ensure healthy live and promote welfare for everyone at all ages”. child marriage affects the health of minors. thus, we have studies that address the issue of child marriage from the medical field. the article by cassimiro, a.j., da silva, t., cizinor. hf., & oliveira, l. l. f. (2020) do so from the nursing field. cardoso, a. v. (2022) presents a study regarding collective health in brazil. luna, j. (2021) studies sexual violence in the amazonia. the author chamorro. f., jiménez rojas, b., & hernández miranda, g.c. (2020) address the issue of sexual and reproductive health among women aged 20-29 in panama. finally, we can quote taylor, a. y., murphygraham, e., van horn, j., vaitla, b., del valle, á., & cislaghi, b. (2019) from the field of adolescent health. all these studies take into account target no. 3.1: “by 2030, reduce the global maternal death ratio to below 70 per 100,000 live births”. in the case of pregnancy, child marriage poses a higher risk for minor girls. the united nations population fund recognises this: “child marriage puts girls' lives and health at risk and limits their future prospects. girls who are forced into marriage often become pregnant while still being teenagers, increasing the risk of complications during pregnancy or childbirth. these complications are the leading cause of death among older adolescent girls.”14 sdg no. 4 in its target no. 4.1 aims for all children to complete primary and secondary education. child marriage makes it more difficult for young husbands to continue their education. the website girlsnotbrides states: “girls with no education are 3 times more likely to marry by the age of 18 than those with secondary or higher education. more than 60 % of women (20-24) with no education were married before the age of 18.”15 authors luna pérez, j., nazar beutelspacher, a., mariaca méndez, r., & 14 available at: https://www.unfpa.org/es/matrimonio-infantil [accessed: 13 january 2023]. 15 available at: https://www.girlsnotbrides.es/aprendizaje-recursos/matrimonio-infantil-y-educaci%c3%b3n/ [accessed: 15 january 2023]. https://www.unfpa.org/es/matrimonio-infantil https://www.girlsnotbrides.es/aprendizaje-recursos/matrimonio-infantil-y-educaci%c3%b3n/ doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 16 ramírez lópez, d.k. (2020) in their article provide data on the influence of marriage in the chiapas, located in mexico, and how it has been reduced by the increase in education and paid work for minors. according to chamorro f., et al. (2020), early unions deny girls and adolescents the right to make fundamental decisions about their own independence, education, and sexual and reproductive health. as stated by peramato martín, t. (2017): “child marriage is a violation of human rights that affects mostly girls who, in addition to causing serious damage to their physical, psychological and reproductive health, reduces their opportunities for education and employment and makes them more vulnerable to intimate partner violence.” in short, child marriage is a circular phenomenon that feeds back into other issues: child pregnancy, violence, and school dropout is an obstacle to sustainable development and contributes to perpetuating the cycle of poverty.16 these references show how sdg no. 5, in its target 3, is a target of the millennium development goals (mdgs). 5, in its target 3, is interconnected like the rest of the sdgs. authentic human development means expanding people's opportunities and increasing their capacities and liberties. the eradication of child marriage is a complex problem, so tackling its causes —poverty education— requires a transversal solution. 4.2. child marriage and human rights on 2 july 2015, the 29th session of the u.n. general assembly adopted resolution 29/8: “recognising that child, early and forced marriage is a harmful practice that violates, abuses and undermines human rights and is associated with other harmful practices and violations of human rights.”17 most authors consider child marriage as a harmful practice for minors. thus, morán blanco. s. (2022), in the third part of his study, analyses the legal, political, and social measures that, since the end of the 20th century, have been applied by states, international organisations, and ngos to eradicate child, early and forced marriage and female genital mutilation. the authors vetis zaganelli, m., morais, j.a., peterle, l.p., & ferreira, l.a. (2021) consider child marriage a violation of human rights. their article presents the international and brazilian legal framework and exposes the consequences suffered by girls subjected to early unions. however, some authors are critical of establishing the age of 18 as a universal absolute, as a human right. thus, álvarez cozzi. m. (2018) reports the inconsistency of international sources. the united nations universal declaration of human rights refers to the domestic legislation of states to establish the marriageable age. similarly, the american convention on human rights states in art. 17: “the family is the natural 16 available at: https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf? openelement [accessed: 3 january 2023]. 17 available at: https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?open element [accessed: 12 january 2023]. https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf? openelement https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf? openelement https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?openelement https://documents-dds-ny.un.org/doc/undoc/gen/g15/163/09/pdf/g1516309.pdf?openelement diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 17 and fundamental group unit of society and the state”. no. 2 continues: “the right of men and women to marry and to found a family is recognised if they are of the age and meet the conditions required by domestic law, insofar as such laws do not affect the principle of non-discrimination established in the convention”. finally, reference may be made to the convention on consent to marriage, minimum age for marriage, and registration of marriages, which entered into force on 9 december 1964. in its preamble, it rightly cites art. 16 of the universal declaration of human rights, and its art. 2 clearly states that the domestic law of the member states shall determine the minimum age of marriage for spouses. finally, art. 3 provides for the registration of marriages with the competent authority of each state (álvarez cozzi 2018, p. 586). from ecuador, mosquera, endara m. (2018) considers that the fundamental right to marriage, enshrined in the republican constitution, cannot be restricted by a lower norm, such as the civil code. the author proposes a return to the pre-2015 legislation, in which minors were allowed to marry their parents' authorisation (mosquera, m. 2018, p.1270). from mexico, gonzález alcántara. j. l. (2020) considers that when a person is prohibited from marrying, he or she is deprived of a fundamental right and a series of fiscal, solidarity, and property benefits. he criticises the removal of the possibility of dispensation, as this is part of the legislator's competence. the purpose is justified in order to protect the minor and to take into account the progressive nature of rights. gonzález alcántara recalls that international treaties leave states free to set the minimum age for marriage; this is the same thesis as álvarez cozzi. the main argument that gonzález raises is the conflict of competencies between the congress of the union and the federal states. the question is whether the federative entities can restrict, through a local law, the constitutional law to marry according to art. 10, this can only be done under the conditions established by the constitution. according to the author, the minimum age for marriage cannot be federalised (gonzález alcántara 2020, p. 468). 4.3. child marriage and human rights not every child marriage is a forced marriage. this section will present searches for the terms forced marriage/casamento forçado. the entries refer mainly to spain. the minimum age for marriage in spain is 16 years. art. 81 of the ley de jurisdición voluntaria 15/2015removed the possibility of judicial waiver for minors under 16 years of age to marry. this way, directive 2011/36 e.u. of 5 april is transposed.18 regarding the classification of forced marriage, art. 90 of the l.o. 15/2015 classified child marriage as a crime, as established in art. 172(a) of the criminal code. 18 ley 15/2015, de 2 de julio, de la jurisdicción voluntaria. available at: https://www.boe.es/buscar/act. php?id=boe-a-2015-7391 [accessed: 12 february 2023]. https://www.boe.es/buscar/act.php?id=boe-a-2015-7391 https://www.boe.es/buscar/act.php?id=boe-a-2015-7391 doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 18 with ol 10/2022, section 4 has been included in art. 172a, which refers to the nullity or dissolution of the marriage thus contracted. article 177(a) of the criminal code, after the reform of 1/2015, incorporates the celebration of forced marriages as one of the forms of trafficking in human beings. forced marriage has been classified in spain as a form of coercion (article 172a) and as part of trafficking in persons. according to art. 172 bis of the criminal code, there are different types of actions. “el que obligue a otra persona a contraer matrimonio mediante intimidación o violencia graves, será reprimido con pena privativa de libertad de seis meses a tres años y seis meses o con multa de doce a veinticuatro meses, según la gravedad o extensión de la coacción19”. the first part will focus on attacks on the fundamental right to enter into marriage in complete freedom and equality; it considers that violence or intimidation against a victim need not be severe but is understandable as long as the violence or intimidation is sufficient to cause harm to the victim. the subject's will is affected, weakening his or her willingness to make decisions. in portugal, the lei no. 83/2015 of 05/08, categorise casamento forçado in article 154.º-b: “quem constranger outra pessoa a contrair casamento ou união equiparável à do casamento é punido com pena de prisão até 5 anos”20. it is an autonomous crime of art 154 —coercion—there does not need to be violence or threat, it is enough that the marriage or equivalent union is forced (ferreira monte 2016, p.81). in the joint work by nieto cabrera, m. e., & nieto-morales, c. (coords.) (2022) entitled: social victims and victims of crime: personal and social promotion through intervention, intervenes abascal, p. j. (2022) with a paper on “ley orgánica 8/2021 on minors who are victims of child marriages”. the second entry is from villacampa estiarte, c. (coord.) (2019); the work is divided into three parts: the first, phenomenological analysis; the second, legal analysis; and the third, assistance and compensation to victims. it is a crucial work on this subject; although it does not have a section dedicated to latin america, there are comparative studies of the uk, spain, italy, and germany. torres rosell, n. (2019) collaborates in this book with the chapter “forced marriage in spain. an empirical approach” (pp. 99113), in which she provides a table with the influence of forced marriage in spain and presents the age of marriage, nationality, and ethnicity of the victims. in 2015, this author presented two works: child marriage as an attack on the dignity and indemnity of minors and “forced marriage: a phenomenological approach and analysis of the incrimination processes” (2015b). 19 art. 172: bis “1. whoever forces another person to enter into marriage by means of serious intimidation or violence shall be punished with imprisonment of six months to three years and six months or with a fine of twelve to twenty-four months, depending on the seriousness or extent of the coercion”. 20 art. 154 b: “whoever causes another person to enter into a marriage or a union comparable to marriage is punished with a prison sentence of up to 5 years. diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 19 another author who addresses the issue is igareda gonzález, n alreay in 2013, before the classification of forced marriage, she presented the “debates on autonomy and consent in forced marriages,” and in 2015, she considered “forced marriages: another opportunity for symbolic criminal law?”. the same author, in 2017, presented forced marriage as a phenomenon imported to europe. in the criminal field, forced marriage is included as part of human trafficking; this is the thesis of navarrete, j.a., from 2017 the crime of trafficking in persons, a comparative law analysis from a mexican perspective. another proposal is that of hernao trip m. i. (2008), “fight against human trafficking: a challenge for colombia in the xxi century”. the last contribution is that of torres rosell n. (2022) with her article “the intersection between trafficking in human beings and forced marriage. an approach to the phenomenon and criminal law response”. some authors consider child marriage as a contemporary form of slavery; this is the thesis of bedmar, e. (2022) criminal law in the face of contemporary forms of slavery, in which he continues with what has already been exposed by garcía sedano, t. (2019) in his article: “contemporary forms of slavery in domestic employment”. another current of doctrine considers child/forced marriage as part of gender violence, thus, the aforementioned article by squillacioti,c. (2021), “child marriage: a gender issue. underlying causes, consequences, legal forms and strategies for eradication”. another author we can cite in this line is zamora manzano, j.l. (2021) “early and forced marriage as a form of violence against women. from rome to the digital age”. in the monograph women as drivers of legal and social innovation in 2021, coordinated by professor tomás martínez g., tamayo, s. participates with the chapter “child and forced marriage as a manifestation of power asymmetries.” in 2018, sanz mulas, n., presented the monograph: culturally motivated crimes. culturally motivated crimes, such as female genital mutilation or forced marriages, go beyond being a criminal offence. to eradicate them, it is not enough to classify them, it is necessary to intervene in the culture that motivates and justifies them. they reveal the new tensions and conflicts in the multicultural societies of our time, the confrontation of religious and cultural values with post-modernity values. it is therefore necessary to adopt a multiculturalist model for managing cultural diversity. a model with an unavoidable gender perspective since only inequality between the sexes reinforces and maintains the validity of these ancestral practices. moreover, this can only be achieved through a calm, political and legal debate, with the opinion of women themselves as a starting point (sanz mulas 2018, p.1). this proposal was already present in 2011 in the book by rodríguez luna, r., male violence against women. as for the search for the term forced marriage must be framed in the criminal field, so the doctrine focuses on spain and portugal, as they are the only countries in iberoamerica where forced marriage is classified as a crime. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 20 the movement for eradicating child marriage promotes raising the legal age of marriage and the classification of child marriage. therefore, the next step in implementing sdg no. 5, target 3, will be including child marriage in the sdgs. 5, target 3, will include forced marriage in the criminal code of the countries of the americas. the debate has started in brazil, a country with a high influence on child marriage. in brazil, the chamber of deputies, on 27 april 202221, has reformed article 205(a) in the federal criminal code, establishing as a crime: “coabitação forçada de pessoas menores de 18 anosou que nãotêm a capacidade de entender o significado do ato ou de resistir a ele”22. the second country debating the penalisation of marriage is mexico. congresswoman eufroina cruz, on 9 december 2021, proposed making forced marriages punishable by imprisonment. her initiative envisaged including the crime of forced marriage in chapter ix. the legislator pointed out that these unions are a form of violence and slavery that is hidden in “the tradition of our native people.”23 the debate continues in parliament; on 25 april 2022, the opinion to stop forced marriages was approved, so it is still an open issue. 5. conclusion this paper seeks to answer these questions: what is the sociological reality of child marriage in ibero-america? from which fields has child marriage been studied in ibero-america? what has been the doctrinal debate on these legislative changes? child marriage is an undeniable sociological reality in ibero-america. the incidence of this issue in some latin american countries is still very high. its causes are very varied —as we have seen— so, to eradicate this practice, it is not enough to raise the legal age of marriage. in addition to these legislative reforms, it is necessary to go to the root of the problem, which in many cases is none other than poverty. many studies are devoted to the sociological reality of child marriage, analysing its causes and proposing measures for its eradication. sdg no. 5, target 3, is interconnected like the other sdgs. actual development means expanding people's opportunities increasing their capabilities and liberties. the eradication of child marriage is a complex problem, so tackling its causes —poverty education— requires a transversal solution. this is why studies that address the issue from the medical, 21 available at: http://www.espaciotv.es:2048/referer/secretcode/wire-feeds/prisão-por-casamento-forçadomantido/docview/2656615791/se-2?accountid=142712. [accessed: 22 january 2023]. 22 art. 205(a) forced cohabitation of persons under the age of 18 or who cannot understand the meaning of the act or to resist it. 23 cámara de diputados méxico. (december 09, 2021) available at: https://comunicacionsocial.diputados. gob.mx/index.php/notilegis/prision-para-sancionar-matrimonios-forzados-propone-eufrosina-cruz [accessed: 13 january 2023]. http://www.espaciotv.es:2048/referer/secretcode/wire-feeds/prisão-por-casamento-forçado-mantido/docview/2656615791/se-2?accountid=142712 http://www.espaciotv.es:2048/referer/secretcode/wire-feeds/prisão-por-casamento-forçado-mantido/docview/2656615791/se-2?accountid=142712 https://comunicacionsocial.diputados.gob.mx/index.php/notilegis/prision-para-sancionar-matrimonios-forzados-propone-eufrosina-cruz https://comunicacionsocial.diputados.gob.mx/index.php/notilegis/prision-para-sancionar-matrimonios-forzados-propone-eufrosina-cruz diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 21 educational, etc., perspective are found to resolve the causes of child marriage, which cannot be the only way to improve living conditions, a form of “social promotion” for girls from low-income families. child marriage is a harmful practice against human rights. therefore, an international movement to eradicate it involves not only governments or international organisations, but is a transversal movement. the eradication of child marriage is one of the 2030 sdgs. the doctrine that has been presented in this study considers child marriage as a new slavery or part of gender-based violence. from 2015 to 2022, all the laws in ibero-america have been reformed; in all of them, the age of marriage has been raised to 18, although in 9 countries, it is permitted —with parental or judicial authorisation— to marry from the age of 16. despite this new legal framework, in practice, child marriage in the americas has continued to grow, especially in the poorest and most vulnerable communities. there are critical voices against the absolutisation of the age of 18 for marriage, not only because of questions of competence between the central state and the federal entities, as it is understood that the civil code cannot limit the fundamental right to marry. the issue is the progressivity of the rights of minors and the ability of states to meet the needs of their population with legislation adapted to their social circumstances. in a way, the absolute prohibition leads some young people to cohabit as spouses but without the support of the institution of marriage. the canon law considers marriage to be a natural right. it caters to people's capacity and the progression of children's rights rather than setting an absolute, legalistic ban on child marriage. in the canonical sphere, the permission of the parents or the parish priest —necessary for minors to be able to contract— is intended to enable them to exercise jus connubi —a fundamental right— with sufficient maturity and due consideration. the question has been raised about whether all child marriages are always forced. because in addition to raising the age of marriage in all ibero-american countries, forced marriage has been classified in some countries. this is the case in spain and portugal, perhaps to avoid “importing” this practice from immigrant communities that have settled in their territories. brazil included it in its federal criminal code in 2022, and in mexico, the issue is part of the debates in the chamber of deputies. in the spanish and portuguese fields, the doctrine questions whether the type of forced marriage is an autonomous crime or part of a broader crime such as human trafficking. although it may seem obvious, to understand the doctrinal debate on the legislative reforms made in ibero-america to adapt to sdg no. 5, target 3, it is necessary to resort to the spanish and portuguese legal literature. 5, target 3, it is necessary to turn to the region's languages, spanish and portuguese. this article, published in english, plans to disseminate the bibliographical references of this debate in the english-speaking world. therefore, the titles of the works have not been translated, so that they can be consulted in the repositories used. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 22 funding this work is part of the research project “desafíos jurídicos de la publicidad de creencias en el espacio público de la era digital” (reference pp-2023-17), awarded in the call for unir research projects 2023 of the universidad internacional de la rioja (unir). references websites cámara de diputados méxico. 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(2015). “derechos humanos de las niñas y los niños y la prohibición del matrimonio infantil en los tratados internacionales”. tla-melaua, 9, (38), pp. 140-160. navarrete, j.a. (2017). delito de trata de persona, un análisis de derecho comparado desde la perspectiva mexicana [unpublished doctoral dissertation]. universidad de sevilla. nieto cabrera, m.e., & nieto-morales, c. (coords.) (2022). víctimas sociales y víctimas de delitos. la promoción personal y social a través de la intervención, dykison. nieto cruz, a. (2020). “la edad núbil en el ordenamiento español tras la reforma del 2015: especial incidencia del derecho foral”. actualidad jurídica iberoamericana, 14, pp. 380-405. peramato martín, t. (2017). “1ª parte, matrimonio infantil, precoz y forzado”. diario la ley, núm. 8965. ramos, m. j. s. (2022). “reparación integral del daño en los delitos de trata y tráfico de personas”. revista tribunal, 2 (4), pp. 35-59. rodríguez luna, r. (2011). las violencias machistas contra las mujeres. sevei de pubicacions de la universitat autònoma de barcelona. sánchez ángeles, v. g. (2022). matrimonios forzados: violación a los derechos humanos de niñas, adolescentes y mujeres en la montaña y la costa chica de guerrero. [unpublisheddissertation]. universidad autónoma metropolitana. unidad xochimilco. méxico. sánchez piñero, e. (2022). el matrimonio forzado como un tipo de trata de seres humanos. perspectiva de los y las trabajadoras sociales andaluzas sobre la práctica del matrimonio forzado. universidad pablo de olavide. https://doi.org/10.15581/010.38.109-160 diego aboi rubio, mercedes salido lópez the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 27 santos cargnin, j.s., luna, j. s., de aguiar, d. m., rodrigues, b. t.c., de azevedo filho, a. a., d., & rodrigo pinheiro, s. (2021). “violência sexual em mulheres na amazônia ocidental”. revista de saúde pública, 55 (92). sanz mulas, n. (2018). delitos culturalmente motivados, tirant lo blanch. siddiqi, m., & greene, m. e. (2022). “mapping the field of child marriage: evidence, gaps, and future directions from a large-scale systematic scoping review 2000– 2019”. journal of adolescent health, 70 (3s): s9-s16. silva, a. j. c., trindade, r. f. c., & oliveira, l. l. f. (2020). “presumption of sexual abuse in children and adolescents: vulnerability of pregnancy before 14 years”. revista brasileira de enfermagem, 73 (suppl 4). soares, r. m. f., & domingos, i. m. (2022) “los derechos humanos como experiencia cultural”. revista de derecho de las minorías, (5), pp. 167-183. souza cardoso a. & valério c. (2022). “casamento infantil no brasil: uma análise da pesquisa nacional de saúde”. ciência & saúde coletiva, 27 (2), pp. 417-426. squillacioti, c. (2021). el matrimonio infantil: una cuestión de género. causas subyacentes, consecuencias, configuraciones jurídicas y estrategias de erradicación. aranzadi. tamayo, s. (2021). “matrimonio infantil y forzado como manifestación de las asimetrías de poder”, g. tomás martínez, mujer como motor de innovación jurídica y social, tirant lo blanch, pp. 935-969. taylor, a. y., murphy-graham, e., van horn, j., vaitla, b., del valle, á., & cislaghi, b. (2019). “child marriages and unions in latinamerica: understanding the roles of agency and social norms”. journal of adolescent health 64 (4). torres rosell, n. (2015), el matrimonio infantil como atentado a la dignidad y la indemnidad de los menores. aranzadi thomson reuters, 1, pp. 389-435. torres rosell, n. (2015b), “matrimonio forzado: aproximación fenomenológica y análisis de los procesos de incriminación”, estudios penales y criminológicos, 35, pp. 831-917. torres rosell, n. (2019). “el matrimonio forzado en españa. una aproximación empírica”, inc. villacampa estiarte, (coord.), matrimonios forzados, análisis jurídico y empírico en calve victimológica, tirant lo blanch, pp. 99-139. torres rosell, n. (2022). “la trata de seres humanos tras un decenio de su incriminación: ¿es necesaria una ley integral para luchar contra la trata y la explotación de seres humanos?”. in a. planchadell gargallo & c. villacampa estiarte (dir.), tirant lo blanch, pp. 219-254. doctrinal debate on the age of contracting of marital in ibero-america the age of human rights journal, 21 (december 2023), e8150 issn: 2340-9592 doi: 10.17561/tahrj.v21.8150 28 veiga, m. v. a., & loyola, v. m. z., (2020). “escolher é ser escolhida: meninice, pobreza e casamento infantil no brasil veiga”. psicologia: teoria e pesquisa, 36. vetis zaganelli, m., morais, j.a., peterle, l.p., & ferreira, l.a. (2021). “matrimonio infantil: una violación de derechos humanos”. revista derecho y cambio y social, 63, pp. 11-33. vidal gallardo, m. (2022). “la protección integral a la infancia y la adolescencia frente a la violencia que representa el matrimonio forzado”. anuario de derecho eclesiástico del estado, vol. xxxviii, pp. 279-318. vilán, a. (2022). “the evolution of the global movement to end child marriage”, journal of human rights, 21 (2), pp. 227-244. villacampa estiarte, c. (2019) (coord.). matrimonios forzados, análisis jurídico y empírico en calve victimológica. tirant lo blanch. wiedemann, d. (2021). “legal progress and socio-economic reflections on child marriage in latin america”. international journal of law, policy and the family, volume 35 (1). zamora manzano, j.l. (2021). “el matrimonio precoz y forzado como forma de violencia en la mujer: de roma a la era digital”. glossae: european journal of legal history, 18, pp. 429-462. received: 26th june 2023 accepted: 6th november 2023 doctrinal debate on the age of contracting of marital in ibero-america abstract 1. child marriage 1.1. the theoretical foundations and conceptual of the age of marriage 1.2. early and forced child marriage 1.3. from sociological reality 2. methodology for searching bibliographic references 3. search results 3.1. on dialnet 3.2. on scielo 3.3. on scopus 3.4. google scholar 4. doctrinal debate on the age of contracting a marriage 4.1. child marriage as a cross-sectoral reality 4.2. child marriage and human rights 4.3. child marriage and human rights 5. conclusion funding references websites the searches assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 1 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions ruchita kaundal* s. shanthakumar** abstract: national human rights institutions (nhri) play an important role in monitoring and promoting international human rights norms in a country. however, in order to function as an effective nhri, they must adhere to the “paris principles” of 1993. in 2023 the indian nhri prepares to renew its ’a’ grade accreditation. this offers an opportunity to assess the effectiveness of the institution in light of the aforementioned principles. in doing so the authors address both the limitations that hinder the nhri’s performance and the remedies. notably, the role of “district human rights courts”, in supporting the nhri in enhancing its effectiveness. keywords: human rights, national human rights institutions, paris principles, national human rights commission india, human rights courts, global alliance of national human rights institutions. summary: 1. introduction 2. historical background 2.1 rationale behind nhris 2.2 united nations campaign to promote nhris 2.3 nhris and the paris principles 3. protection of human rights in india 3.1 evolution of human rights protection in india 3.2 events contributing to the establishment of the national human rights commission (nhrc) 4. domestic institutionalisation of human rights in india 4.1 an overview the protection of human rights act, 1993 4.2 analysing nhrc’s compliance with the paris principles (secondary analysis) 4.2.1 pluralistic representation within the composition of the nhrc vis -a -vis independence 4.2.2 selection and appointment procedure of the members of the nhrc vis -a -vis structural independence 4.2.3 financial and administrative autonomy 4.2.4 broad mandate 5. statutory limitations in the functioning of the nhrc 5.1 legal constraints 5.2 jurisdictional constraints 6. ways to enhance the capabilities of the nhrc 6.1 the indian judiciary and phra, 1993 6.2 proposed amendments to the phra, 1993 7. conclusion 1. introduction human rights are rights intrinsic to the dignity of every individual (udhr, 1948, art.1). to provide a conducive environment for the enjoyment of these and also to offer remedial channels to enforce the rights in times of breach rests upon the parent country of the individual (udhr, 1948). the reason is that an individual is subject to the country’s law. at the same time, even though the government may ratify an international instrument, * ms. ruchita kaundal, phd research scholar, gujarat national law university, gandhinagar, gujarat 382028, india (ruchitaphd202038@gnlu.ac.in). ** prof. (dr.) s. shanthakumar, director, gujarat national law university, gandhinagar, gujarat, 382028, india (vc@gnlu.ac.in). http://10.17561/tahrj.v20.7719 mailto:ruchitaphd202038@gnlu.ac.in assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 2 enjoying these rights is only possible with their practical implementation at the domestic level (nhrc, 2012, p.10). to address this challenge, the united nations (un) insisted that member states establish independent human rights institutions within their domestic set-up to realise human rights practically. as a result, in 1991, the first “international workshop on national institutions for the promotion and protection of human rights” took place in paris (un, 2010, p.7). the workshop’s purpose was to review the partnership between national and international institutions and determine how the alliance could be strengthened to provide better protection for human rights (ray, 2003, p. 74). the deliberations within the workshop resulted in what came to be known as the “paris principles” a set of instructions for assisting nations in establishing national human rights institutions (nhris) (unchr, 1992). the draft of the principles was endorsed by the united nations commission on human rights (ibid). the united nations general assembly(unga) further voted on and adopted them as the “principles relating to the status of national institutions” (unga, 1993). india was among the many countries to participate in the conference. however, divergent views on nhri within the country initially refrained india from acting upon the “paris principles” (ray, 2003, p. 83-84). the argument was that india had a wellequipped court system which protected the human rights enumerated within the national constitution; additionally, the free press within the country was vigilant enough to keep a check as well as bring to light any incident of rights violation (ibid). however, succumbing to international pressure in the wake of the alleged atrocities committed by the police and the armed forces in response to cross-border terrorism, the indian government brought forth the protection of human rights act, 1993 (tiwana, 2004). phra (1993) is the primary legislation for the overall protection of the human rights of the people within the country. it directly reflects india’s commitment to the 1993 “paris principles”. it allows for the constitution of two hierarchical institutions, namely the “national human rights commission” (nhrc) at the centre (phra, 1993, §2) and the “state human rights commissions” (shrc) at the state level (ibid, § 21). it further empowers the state governments to constitute “human rights courts” (hrc) at the district level (ibid, § 30). the present paper is divided into seven primary segments; the first segment sets the introduction and the focus to provide a framework for the assessment; the second segment of the paper gives the historical background and the rationale behind the united nations’ (un) campaign to set up nhris around the world. it further discusses the resulting document adopted by the unga for the promotion and protection of human rights, i.e. the “paris principles” and the accreditation process involved in designating an institution as an nhri. the third segment discusses the evolution of human rights protection in india and events that led to the adoption of the phra. the fourth segment of the paper introduces the readers to the phra which establishes the nhri for india. after doing so, the authors critically examine the nhrc’s (nhri of india) structural compliance within the act in light of the “paris principles”. the authors also look at the practical aspect of “paris http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 3 principles” through nhrc’s operations, as depicted in its last two annual report (s), i.e. 2018-19 and 2019-20. the reason for choosing the said annual reports is that the reports for the year 2020-21, 2021 -22 and 2022 -2023 have not been published by the nhrc yet. since its inception, the nhrc has been accredited with an ‘a’ status by the global alliance of national human rights institutions (ganhri) (chauhan, 2018). however, in 2016, there was a shift in the decision by the ganhri (sahani, 2017). it refused to reaccredit india’s long-held ‘a’ grade status due to some of its compliance concerns (ganhri, 2016, p. 24). however, with assurances made by india in amending the defects pointed out by the accreditation panel, the ’a’ status was restored to india (thanawala, 2022). as india prepares to renew its accreditation with ganhri under the 2023 session, it is important to examine the human rights establishment in light of the 1993 “paris principles” and note whether the shortcomings that posed a barrier during the 2016 review session have been resolved. in the fifth segment of the paper, the authors point out some inherent structural limitations existing within the phra and list ways to overcome the roadblocks hindering the commission’s effectiveness. in doing so, the authors especially try to gather the readers’ attention on the role of the hrcs an enforcement machinery set up under section 30 (phra, 1993) in increasing the effectiveness of the commissions. the nhrc/shrcs as they stand today are only capable of providing recommendations to the government and are devoid of any enforcement mechanism (ibid, §18). despite the commission’s commendatory work in the field of human rights protection, the lack of an enforcement mechanism has hampered its mandate of protecting and preventing violation of human rights. the authors suggest that the commissions and the hrcs should work in unison to bridge this gap, making access to justice an achievable dream. the authors urge the state governments within the indian union to set up shrcs and hrcs as a first step towards the prior initiative. finally, the last segment of the paper provides the authors concluding remarks. 2. historical background – nhri 2.1 rationale behind establishing nhris the history of human rights is as old as human civilisation itself. while the expression “human rights” is of modern origin, traces of the idea date back to ancient and medieval times (ghosal, 2010). the concept of “human rights” can be characterised as rights inherent to every human being for their overall development. therefore, safeguarding these rights assumes priority in maintaining harmony in society. the call for officially recognising and safeguarding these so-called “rights of man” rose towards the end of the world wars due to the growing anti-imperialist/anticolonialist sentiment (rao, 1998). subsequently, the rights acquired universal status with the foundation of the un (charter of the united nations, 1945) and the adoption of the udhr (1948). unfortunately, the non-binding characteristic of the declaration left the rights to remain as no more than a piece of normative ideals for the states to follow (kumar, 2003, p.260). http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 4 to amend this gap, two chief covenants, namely, the international covenant on economic, social and cultural rights (1976); and the international covenant on civil and political rights (1976), were passed by the un. the two instruments and the universal declaration of human rights (udhr) became known as the “international bill of human rights” (ohchr, no date). the universal rights of men thereby assumed the desired legal and enforceable status. however, the fact remained that mere ratification of the instruments did not automatically guarantee adequate protection by the nation-states within their domestic set-up (hegde, 2018, p. 64). to address this challenge and make human rights a practical reality for every human being on earth, the un started endorsing the idea of nhris amongst the nation-states in the early ’60s (ray, 2003, p. 72). the establishment of these institutions was seen as a link between international human rights law and municipal law. 2.2 un campaign to promote nhris the idea of establishing nhris was first recommended by the “nuclear commission” on human rights in its report of 21 may 1946 to the un economic and social council (ecosoc) (miller, 1968, p. 162). as a response to that, the un ecosoc, by resolution no. 9 (ii), invited member states to deliberate on the idea of coming up with institutions which could help in the practical realisation of human rights within each member state (miller, 1968, p. 162). after a 14-year reticence since the passing of the resolution, the commission on human rights, in its 16th session, once again canvassed the distinctive role the nhris could play in protecting and promoting human rights (unecosoc official records, 1960). therefore, the commission sought out the views of the member states, which had existing arrangements of that sought within their domestic arena (ibid). however, much information about the institutions’ potential, nature, and operation remained to be gathered—their role within the domestic structure and their relationship with other domestic institutions needed to be further studied. therefore, the unga (1977), under its resolution 32/123, recommended a worldwide seminar on national and local institutions for promoting and protecting human rights. the resulting seminar held in geneva laid down the guidelines for the structure and functioning of the institutions (united nations division of human rights, 1978). this fuelled the uns’ determination to establish nhri(s), passing a series of resolutions. the resolutions dealt with issues such as the role of ngos in the work of nhris, (unga, 1979), studying the various models of national institutions existing within the states (unga, 1981), dissemination of texts of human rights instruments in federal and local languages (ibid), etc. as a result, the united nations centre for human rights organised its first “un international workshop on national institutions for the promotion and protection of human rights” in paris in 1991 in collaboration with the french national consultative commission (un, 2010, p. 7). recalling its earlier concerns about the potential role of a nhri, the workshop invited member states to share their experiences with nhris, back home – the advantages and the shortcomings and put forward their suggestions for strengthening the institutions (ibid). the draft document prepared at the end of the workshop, was endorsed by the un commission on human rights by resolution 1992/54 (unchr,1992). it was further adopted under resolution 48/ 134 by the unga as the “principles relating to the status of http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 5 national institutions” (unga, 1993). the vital role of nhris as actors in promoting and protecting human rights was further reaffirmed in the vienna declaration and programme of action and adopted by the world human rights conference ohchr (1993). this was also the first time the nhris adhering to the “paris principles” received international recognition (un, 2010, p. 7). 2.3 what are nhris and the “paris principles”? nhris are independent institutions within a nation’s domestic framework to protect and promote human rights (undp-ohchr, 2010, p. 6). as depicted in figure no. 1 above, these extraordinary institutions, although distinct from the three organs of the state, i.e. the legislature, the executive and the judiciary, form a crucial part of the state (ibid). they are the nexus between the organisations within the domestic system catering to the practical realisation of human rights. their role is wider than the domestic arena. an nhri also maintains close ties and interacts with other international actors. allowing it to report and advise its parent state on the best human rights practices (ibid). for a human rights body to be adorned with the status of being an nhri, it must conform to the “paris principles”. as mentioned earlier, the “paris principles” (hereinafter referred to as “the principles”) are guidelines that put forth minimum standards to function and be designated as an nhri (unga, 1993). the categorisation of these guidelines under the draft is as follows:a) competence and responsibilities, b) composition and guarantees of independence and pluralism, c) methods of operation, d) quasi–jurisdictional competence (ibid). fig. 1. nhricentral element of national protection systems. source: undp-ohchr toolkit for collaboration with national human rights institutions, 2010. http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 6 the institutions in compliance with the principles are accordingly accredited by the international coordinating committee of national institutions for the promotion and protection of human rights, now known as the global alliance of national human rights institutions (ganhri, 2019). the ganhri was established by nhris at the second “international workshop on national institutions for the promotion and protection of human rights” held in tunis in 1993 (chrc, 2017, p. 10). as a multi-lateral organisation, ganhri’s mandate is to coordinate the work of nhri(s) established worldwide and accredit them based on their compliance with the principles (ibid). the ganhri’s subcommittee on accreditation (sca) is the body in charge of the accreditation process (ibid). the sca follows a unique peer review process for granting accreditation (’a’ and ’b’ status) (ibid, p. 11). the accreditation process, in return, regulates each nhri’s access to the un human rights council. nhri -accredited ’a’ status has the right to vote (ganhri, 2019, art. 24.1) and to be appointed as a member of the ganhri bureau (ibid, art. 31.4). the nhri-accredited ’b’ status can only participate in the agenda meetings but not vote (ibid, art. 24.2). presently there are 129 active nhris accredited by ganhri worldwide (see fig. 2 below) (ohchr, 2023). as nhris become the missing link in the international human rights protection framework, their smooth operation is essential. the next segments of the paper thus focuses on the development of human rights law in india, ultimately resulting in the creation of india’s nhri for achieving the dual mandate of protecting and promoting human rights. 3. protection of human rights in india 3.1 development of human rights law in india india is the world’s largest democracy, and one of the primary goals of a democratic government is to safeguard its people’s inherent human rights. as a result, the indian government’s stance on human rights protection and prevention has been relatively high since the outset (rubin, 1987, p.372). after years of repression under the colonial state, india as a newly found nation was determined to ensure to its people human rights, they 68% 24% 8% a category b category c (no category fig. 2. chart of the status of national institutions (accreditation status), 2023. (source: un office of the high commissioner for human rights). http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 7 had so long been deprived of. as a result, the constituent assembly (ca), formed to design a comprehensive constitution for the country, gave special attention to people’s rights. additionally, given the vast diversity within the indian society, ensuring that the needs of every individual and group are effectively addressed was a monumental undertaking. nonetheless, the ca completed the final draft of the constitution by perfectly verbalising the lessons learnt during the struggle for independence (kothari, 2018, p.79; kannabiran, 1992). the citizens of the country, thereby finally adopted and gave to themselves the “constitution of india” on the 26th january, 1950 (the constitution, 1950). the constitution of india includes both the civil and political rights and the economic and social rights (ibid). however, only civil and political rights enshrined in part iii of the constitution as “the fundamental rights” (fr) are rendered legally enforceable before the constitutional courts of the country (ibid). this was due to the fact that india as a newly found state possessed a limited economic capacity and therefore ensuring these rights fully was not possible (ranjan, 2019). the ca therefore incorporated the non-justiciable economic and social rights into part iv of the constitution, titled “the directive principles of state policy” (dpsp) (the constitution, 1950). the dpsp nevertheless form critical to the country’s governance and are politically enforceable (kannabiran, 1992). in fact, the constitutional courts have in due course of time, managed to bring in some of the nonjusticiable rights within the scope of the fr through a creative and liberal interpretation of article 21 i.e. “the right to life”. (nariman, 2013, pp. 13-26). giving citizens’ rights protection meant eradicating the social ills that pervaded indian society. this sparked a slew of social movements across the country (sugunakararaju, 2012). the movements centred on issues affecting the working class, the marginalised class, gender, culture, and identity, among other things (ibid). as a result, the indian parliament has come to enact a number of laws pertaining to the preservation and prevention of human rights within the country over time (deol, 2011, p. 112). these laws are in conformity with the fr and the international human rights conventions that india has ratified. fig. 3 below throws a glance at some of the national legislations which have which have a bearing on the protection of human rights in the country. furthermore, the government of india established six major commissions to guide, advise, and propose solutions to issues affecting the rights of various disadvantaged groups in the country (see fig. 4 below).these commissions have helped a lot in advancing the social position of the vulnerable groups (ibid). four of these commissions existed prior to the establishment of the nhrc (see fig. 4 below). however, due to the limited scope of the commissions and the occurrence of some additional events, the idea of forming an nhri dedicated solely to human rights emerged (singh, 2018). 3.2 events contributing to the establishment of the nhrc the proclamation of emergency period from 1975-77, is considered the darkest phase of civil rights in the country, due to the complete suspension of all the fr (ghosh, 2017). the period post emergency thereby resulted in major agitations against the authoritarianism of the government (ray, 2003, p. 81). numerous human rights organisations were formed in the different parts of the country for the promotion and http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 8 immoral trafficking prevention act, 1956 bonded labour system (abolition) act, 1976 right to education act, 2009 minimum wages act, 1948 child labour (prohibition and regulation) act, 1986 right to information act, 2005 sc/st prevention of attrocities, act, 1989 equal remuneration act, 1976 fig. 3. national statutes protecting human rights in india (madan, 2017). 1993 2003 1978 2007 1992 1992 fig. 4. national commissions for protecting the rights of the vulnerable in india (deol, 2011). protection of human rights (ibid). all this together led to the new idea of establishing an independent civil rights commission (ibid, p.82 -83). the idea was first put forth by the janta party in its 1977 election manifesto (somanathan, 2010). the need for establishing the commission again found mention by the then chief justice of india, http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 9 justice pn bhagwati in 1985 and by an eminent jurist lm singvi in 1988 (ray, 2003, p.82). while there was this long standing demand for the creation of an independent human rights body within the country, there was also scepticism surrounding it from many (ibid, pp.83-84). it was felt that with an independent and powerful judiciary acting as the ultimate custodian of the fundamental rights; the presence of a watchful free press and the presence of individual commissions rendered the establishment of an additional institution redundant (ibid). the issue however assumed emergency due to a series of events in the late 1980s. the 1980s was a tumultuous period for the country, due to the spread of terrorism and insurgency in the states of kashmir and punjab (sripati, 2000, p. 8; ray, 2003, p.85). to counter these elements, the central government was compelled to extend its special counterinsurgency laws to these areas (ibid). these laws granted the police and military forces broad powers, resulting in the emergence of state-sponsored terrorism (ibid). as a result, incidents of arbitrary detention, torture, extrajudicial execution, and enforced disappearance of thousands by paramilitary forces started cropping up within these areas (amnesty international, 1989). these occurrences were widely documented by the international organisations, in their publications, exposing the reality of human rights in the country (ibid). to respond to the international pressure brought on by these instances and to defend the country’s reputation in the global community, india passed its first human rights legislation, known as the “protection of human rights act of 1993” (jaswal and jaswal, 1996, p. 235). the act further depicted india’s fulfilment of its obligation under the “paris principles” of 1993. thereby, creating an independent institution to investigate the country’s human rights situation (ray, 2003, p.83). 4. domestic institutionalisation of human rights in india 4.1 an overview – “the protection of human rights act 1993” the phra is a central legislation in india which entered into force on september 28, 1993 (phra,1993, §1(3)). the act is applicable to the whole of india and aims to offer “better protection of human rights in the country, as well as matters related to and incidental thereto” (phra, 1993). to achieve the said purpose, the phra creates two unique forums: 1. human rights commissions, i.e. the nhrc at the centre level (phra, 1993, § 3) and the shrcs at the state level (ibid, § 21) and 2. human rights courts (ibid, § 30) a judicial body within the cadre of criminal courts, at the district level within every state. the commissions are independent bodies distinct from the three government organs i.e. the legislature, the judiciary and the executive. the nhrc the nhrc is established by the central government (ibid, § 3) and is based in new delhi, the country’s capital. http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 10 the shrcs whereas the state government(s) have the authority to create a shrc within their state jurisdictions (ibid, § 21). the location of the commission’s headquarters is determined by the state government and currently, each shrc has its headquarters in the capital city of the respective state (ibid, § 21). the nhrc has the authority to receive complaints on violations of human rights from everywhere in the country, as opposed to the shrc, which receive complaints from within their state’s jurisdiction. the hrc(s) the hrc(s) is a judicial body which belong to the cadre of district criminal court within state. every state government has the power to designate the district criminal court i.e. the court of sessions, within each district of the state as a hrc (ibid, § 30). the hrc have the power to try the offences which arise out of a violation of human rights (ibid, § 30). overall, the phra is divided into eight chapters consisting of a total of 43 sections which deal with the constitution, composition, powers, functions and finances relating to the commissions and the hrc. chapter i deals with the short title, scope, and commencement of the act, as well as the definition clause, which defines various terms used in the act (ibid, § 1-2). the second chapter, titled “nhrc” is divided into 11 sections, which deal with the composition of the national commission, the appointment process of its members, the method of removal of the members, the term of office of the members, the conditions of service of the members, and the procedure to be followed by the commission (ibid, § 3-11). the third chapter, headed “functions and powers of the commission” is divided into five sections that outline the many functions (inquire and investigate rights abuses, intervene in judicial processes, inspect jails, and conduct awareness) that the commission is obliged to fulfil as an nhri (ibid, § 12-16). the fourth chapter titled “procedure” is divided into four sections which deal with the procedure to be followed by the commission when investigating complaints of human rights violations, the steps to be taken after the completion of an inquiry, and the procedure to be followed when dealing with complaints against members of the armed forces (ibid, § 17-20). chapter v titled “shrc” consists of nine sections similar to those applicable to the nhrc in chapter ii of the act, laying out the shrc’s constitution, appointment of its members, removal of its members, term of office of the members, and conditions of service of members (ibid, § 21-28). it goes on to say that the shrc’s functions and powers will be comparable to those of the nhrc, as outlined in sections i, iii, and iv of the act (ibid, § 29). chapter vi titled “hrc” consists of only two sections dealing with the constitution of the hrcs and the appointment of a public prosecutor by the respective state government for the purposes of conducting a trial before the hrcs (ibid, § 30-31). lastly, chapter vii and viii consist of four and eight sections respectively. the chapters are dedicated to finance, accounts and miscellaneous subjects (ibid, § 32 – 43). http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 11 4.2 analysing nhrc’s compliance with the paris principles (secondary analysis) the principles give each country broad leeway in establishing an nhri per their authority and capacity; however, the nhri must adhere to the basic parameters set by the principles for its effective functioning (unga, 1993). to develop a precise understanding of the parameters, the principles were further expanded and adopted by the ganhri bureau as the “general observations of the subcommittee on accreditation (sca)” (ganhri, 2019, art.11.2; ganhri sca, 2019, art.2.2). the general observations (go) are divided into two sections: the first contains the essential requirements outlined in the “paris principles”, and the second contains the practises that aid in achieving the “paris principles” essential requirements (chrc, 2017, p.15). the gos were last revised and adopted by the ganhri at its meeting held in geneva (ganhri, 2018). the gos assist the sca in providing better clarity for evaluating the nhris in the accreditation process (chrc, 2017, p.15). using the principles and the gos, the authors attempt to assess the nhrc’s structural compliance as laid out in the phra; simultaneously, the authors also reflect on the practical aspect of the principles through the nhrc’s operations as reported in its most recent annual reports, i.e. 2018-2019 and 2019-2020. in doing so, the authors will concentrate on four key areas for evaluation: pluralism, independence, financial and administrative autonomy, and a broad mandate. 4.2.1 pluralistic representation within the composition of the nhrc vis a vis independence the phra sets out the basic framework of the nhrc. the nhrc comprises six members, inclusive of the chairman (phra, 1993, § 3(2)(a) -(c)). out of the six members, three members of the commission belong to the following pool: i. the chairman of the nhrc former chief justice/ judge of the supreme court of india, ii. judge of the supreme court [serving or former], iii. chief justice or a judge of a high court [serving or former]. (ibid, § 3(2)) the remaining three members, out of which at least one has to be a woman, should be people “who have the knowledge or practical experience in matters relating to human rights” (ibid, § 3(2)d)). apart from them there are seven extra “deemed members” of the commission. these comprise chairpersons of the national “sister commissions”1 of the nhrc, namely: the national commissions for [the backward classes, minorities, the protection of child rights, scheduled castes and scheduled tribes, women, and persons with disabilities] (ibid, § 3(3)). 1 the authors use the term “sister commissions” to refer to commissions that are solely dedicated to protecting the rights of a specific vulnerable group of society. http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 12 a critical analysis of the composition reveals the following: i. the authors observe that as a sizable portion of the membership pool comprises members of the higher judiciary, it ipso facto restricts the diversity within the commission as necessitated under the gos (ganhri, 2018, g.o 1.7). the ganhri sca report held a similar view, wherein it pointed out that the quasijudicial function of the commission is one out of many and therefore having the majority of its members from the judiciary fails to achieve the pluralism criteria under the paris principles (ganhri, 2016). ii. the presence of the respective chairman from the “sister commissions” within the commission is an excellent step towards achieving the pluralistic agenda under the paris principles. it guarantees that the grievances of the vulnerable are not brushed aside or go unnoticed (sripati, 2000). however, the secondary analysis of the annual reports of the nhrc, the authors observe that there is hardly any interaction between the nhrc and its “sister commissions”. the “sister commission” are only mentioned once in the annual report, under the heading “statutory full commission meeting” (nhrc, 2019, p.83). the initiatives or decisions taken by the nhrc also do not refer to any collaboration with any of the “sister commissions” (ibid, pp.1-287). iii. the authors observe that the phrase “people with knowledge or practical experience in matters relating to human rights” contributes to the requirement of pluralism by including a wide range of stakeholders with practical and theoretical knowledge of human rights within the nhrc membership. (ganhri, 2018, g.o 1.7). however, the authors caution that the criteria for selecting non-legal members should primarily be based on a person’s commitment to human rights and not on the prestigious position held by the candidate. iv. an observation on the under-representation of women within the commission was made by the ganhri sca report wherein it pointed out that women represented 20% of the total staff of the nhrc (ganhri, 2016, p.24). the authors opine that mandatorily appointing one woman member out of the three non-judicial members of the commission is a welcome move in addressing the need for women’s representation within the commission (phra, 1993, § 3). the authors, however, opine that given the commission’s already minuscule representation of women as stated before, the above initiative falls short of its goal (ganhri, 2016). 4.2.2 selection and appointment procedure of the members of nhrc vis a vis structural independence an essential criterion for an institution’s smooth functioning and credibility is its independence, and one of the factors which directly reflects upon the autonomy of the nhri is its method of appointment. the sca suggests that the best method of appointment is that which depicts utmost transparency through broad participation and merit-based selection (ganhri, 2018, g.o 1.8). a fixed tenure and an expressly laid down method of dismissal within the parent legislation further contribute to the institution’s independence. (ibid, g.o 2.1). http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 13 according to the phra all commission members are appointed by the president of india, who acts on the advice of an “appointing committee” (phra, 1993, § 4). the “appointing committee” consists of six members – i. the prime minister of india, ii. the speaker of the lok sabha2, iii. the deputy chairman of the rajya sabha3, iv. the union minister in charge of the ministry of human affairs, v. the leaders of the opposition in the lok sabha and the rajya sabha respectively (ibid). moving forward to the criteria of tenure and dismissal, the phra provides for a fixed term of office for all its members. the duration of the tenure is three years from the day of the appointment or until a member attains the age of 70 years, whichever is earlier (ibid, § 6). the phra further permits the reappointment of members for another term. the reappointed member should however not exceed the age of 70 years (ibid). when it comes to removing or dismissing members within the commission, the phra is exhaustive on terminating a member’s services (ibid, § 5(3)). the phra gives the president of india the authority to remove a member found guilty on any of the five grounds specified in the act (ibid). in case of proven misbehaviour and incapacity, the members can only be removed by the president’s order following a supreme court inquiry (ibid, § 5(2)). a critical analysis of the appointment method and tenure/ method of dismissal reveals the following: i. the phra does not prescribe any particular criteria and process for how members should be selected or what the benchmarks would be for scrutinising the eligible candidates. the phra only outlines the pool from which the members can be selected. another concern is the need for more consultation with relevant stakeholders in the recruitment process. the authors thereby opine that there is an urgent need for the commission to adopt a more transparent recruitment process; doing so shall also assist in maintaining diversity within the nhrc. the process should include posting job openings, a thorough vetting process, and pre-set criteria for appointment (ganhri, 2018, g.o 1.8). the authors further opine that the commission’s chairman should be involved within the appointment committee while appointing the commission’s other members. ii. the authors opine that the scorecard of the phra is optimistic in terms of establishing a fixed tenure and method of removal of members. according to the authors, the fixed-term period of service helps ensure the institution’s independence and the continuation of the commission’s programmes and initiatives. the dismissal method grants members security from arbitrary or discretionary dismissal. 2 india has a bicameral parliament. the house of people is the lower house of the parliament of india and is known as the “lok sabha”. 3 the house of representatives is the upper house of the parliament and is known as the “rajya sabha”. http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 14 4.2.3 financial and administrative autonomy adequate funding, resources, and independent staff members are vital in maintaining the independence of an institution. an estimated budget is prepared per the annual requirement of the nhrc by the accounts wing of the commission (nhrc, 2018, p. 173). the budget is approved by the secretary general (sg) of the nhrc and is placed before the steering committee headed by the chairman of the nhrc (ibid). after the committee approves the estimated budget, the budget is forwarded to the government (ibid). the nhrc after that receives parliament-approved grant from the government of india and has the liberty to spend it accordingly to achieve its mandate (phra,1993, § 32). sufficient financial independence is also crucial in employing an efficient staff and procuring resources for the proper functioning of the institution. the nhrc is empowered to appoint its own administrative, technical and scientific staff (ibid, § 11). the nhrc can additionally seek the assistance of the central government in appointing the sg and the police staff to conduct investigations into the complaints received by it (ibid). in addition to this the nhrc is further empowered to appoint non -police members as observers or investigators to its investigative team (nhrc, 1994, reg. 48). presently the nhrc employs a total of 295 staff members against the total sanctioned strength of 356 posts (nhrc, 2019, p. 228); these posts within the nhrc are divided into five divisions, i.e. law, investigation, policy research, projects and programmes division, training division, and administration division (ibid, p. 32). i. the authors observe that the allocation of funding approved by the parliament ensures that there is no unnecessary denial of funds to the commission, thus ensuring the financial independence of the institution. the annual report of the nhrc suggests that the only financial hardship faced by the commission was in purchasing vehicles for the commission. (ibid, p. 233). ii. the authors further observe that the deployment of personnel for conducting investigations into complaints from the existing pool of police officers might be advantageous due to their prior held experience. however, given that many of the complaints received by the commission involve atrocities and excesses committed by their peers, selecting officers from the same force runs counter to the commission’s independence. the authors recommend that the commission exercise extreme caution in appointing the police and investigative staff and that only officers with impeccable records should be recruited. the authors further opine that non-police members should accompany the investigation team as observers or investigators (ganhri, 2016, p. 26) 4.2.4 broad mandate the phra confers the nhrc with a broad mandate on protecting and promoting human rights within the country (phra, 1993, § 12 ). the authors divide the nhrc’s functions into four primary roles that it is authorised to play in carrying them out: http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 15 a. protector (ibid, §12(a -b)), b. promoter (ibid, §12(g) – (i)), c. advisor (ibid, §12(d) – (f)), d. monitor (ibid, § (c) – (f)). a. commission as the protector of human rights as a protector of human rights, the commission has been ordained with the power to receive complaints and initiate an investigation into violations of human rights committed by a public servant (ibid, § 12(a)). the commission’s power isn’t restricted to receiving complaints but can also suo motu initiate an investigation in an incident involving a rights violation, its abetment or negligence by a public servant in preventing such a violation (ibid). to facilitate the nhrc in fulfilling this duty, the phra bestows it with the powers of a civil court in conducting an inquiry (ibid, § 13(1)). the commission is empowered to summon witnesses, examine them under oath, receive evidence on affidavits, and order the production of any public record or copy thereof from any court or office (ibid). the commission is further vested with an investigative team to conduct its investigations into the complaints received by it. the commission can, after that, submit its results and recommendations to the concerned government for the appropriate action to be taken (ibid, § 18). it is to be noted that the commission is only empowered to entertain complaints against public servants and not those involving private individuals (ibid, § 12(a)). the annual reports of the nhrc depict that for the ease of filing complaints, the nhrc started a joint online facility wherein a complaint can be filed either with the nhrc or shrcs (nhrc, 2019, p. 9). as a result, nhrc’s effectiveness and accessibility can be depicted from the no. of complaints received and the disposal rate. the nhrc received 1,66,212 complaints from 2018 -2019 (see fig. 5 below). the complaints received from the various states included a wide range of human rights issues (see fig. 6 below). the reports further depict the skillfulness of the nhrc in handling these complaints through 89584 76628 94739 76725 1188 4127 19625 16910 0 10000 20000 30000 40000 50000 60000 70000 80000 90000 100000 2018-2019 2019-2020 no. of complaints filed no. of complaints disposed (including backlog) no. of cases pending (awaiting preliminary consideration) no. of cases pending (reports awaited from authorities or pending with nhrc after receipt of report) fig. 5. statistics of complaints filed and pendency rate. (source: secondary analysis of the nhrc annual reports). http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 16 its intensive investigations and speedy redressal of grievances, through the creation of “rapid action teams” [rat] (ibid). the rat have been created to deal with cases requiring urgent action (ibid, p. 35). however, the rate of pendency (see fig. 7 above), could be more apparent. any delay in securing remedies for the victims nullifies the motive of the nhrc. further, the sheer number of complaints, although portrays that the citizens are aware of the commission and hold a sense of trust in the commission, the low rate of compliance (see fig. 7 below) shows non-cooperation from the government authorities as a significant hindrance in the performance of the nhrc. the nhrc, in its reports, mentions how it has repeatedly communicated and appealed to the defaulting governments/ authority to comply with its recommendations of providing monetary compensation (ibid, p. 26). b. commission as the promoter of human rights india is home to the largest illiterate population, and spreading awareness amongst the masses about their fundamental rights and duties is an urgent need of the 691 437 125 113 566 324 0 100 200 300 400 500 600 700 800 2018-2019 2019-2020 recommedations compliance pending fig. 7. statistics of compliance rate. (source: secondary analysis of the nhrc annual reports). 26 torturecustodial deaths fake encounters medical negligence bonded labour attrocities against women child labour denial of retiral benefits attrocities against sc/st, minorities communal violence pollution issues mob lynching fig. 6. human rights issues for which complaints are filed before the nhrc. (source: secondary analysis of the nhrc annual reports). http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 17 hour (toi, 2022). the commission has been tasked to undertake literary activities in spreading human rights awareness among various sections of society (phra, 1993, §12(h)). the authors observe that the nhrc has been active in undertaking numerous literary activities to spread human rights awareness (see fig. 8 above). the authors however opine that the awareness activities undertaken by the commission are less intensive within the rural and remote areas of the country. the authors further observe that the phra requires the nhrc to submit an annual report to the central government outlining the commission’s work (ibid, § 20). the importance of publishing an annual report regularly is to provide a public account of the commission’s work and to allow for public scrutiny (ganhri, 2018, g.o 1.11). it also helps to reflect on the institution’s effectiveness and legitimacy in terms of human rights protection. the nhrc still needs to meet obligations in this regard, as indicated by the fact that the nhrc fails to publish its annual report on time (extra judicial execution victim & anr. v. union of india & ors., 2012). this is supported by the fact that the most recent publicly available annual report in 2023 is for the fiscal year 2019-20. c. commission as an advisor for human rights the commission’s function as an advisor is to assist the government in effectively implementing human rights norms endorsed within domestic and international instruments (phra, 1993, §12(f)). the nhrc constituted a special committee for studying the un treaties and other international instruments on human rights to advise the government on the practical implementation of laws within the country (nhrc, 2019, pp. 166167). as part of the monitoring and advisory process, the commission further has the authority to review existing laws and offer suggestions to improve their effectiveness (phra, 1993, § 12(d)). the nhrc, exercising this function, reviewed some of the legislation/bills and put forth its recommendations for necessary amendments (see fig no. 9 below). the nhrc additionally put forth advisory guidelines for the prevention of custodial violence (nhrc, 2018, p. 34 -35). human rights regional workshops human rights sensitization programsamongst prison officers, correctional home officers, public prosecutors, police officials training programs in collaboration with various institutions street theatre and short films open house discussions debate competitions insts itu human rights conferences and seminars student internship programsmonthly newsletters and annual report. open hearings and camp sittings fig. 8. major activities undertaken by the nhrc for promoting human rights. (source: secondary analysis of the nhrc annual reports). http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 18 commission as a monitoring agency for human rights the commission’s role as a monitoring agency is to keep track of instances of human rights violations in the country. the phra (1993, §112(c)) empowers the commission with the right to visit prisons, jails, shelters, reformation houses or any such institution within the control of the government. the annual reports illustrate gamut of monitoring activities, such as jail visits by the special rapporteur in 52 cities between 2018-2020 (nhrc, 2018, pp. 75-76; nhrc, 2019, pp. 47-50) and special rapporteur visit to mental health institutions(nhrc, 2018, pp. 93-94). by doing so, the nhrc helped draw the government’s attention to specific areas where systemic reforms were required. a critical analysis of the nhrc’s mandate depicts the following: i. the authors opine that the phra fully complies with the paris principles regarding setting forth a broad mandate for promoting and protecting human rights within the legislation. ii. the authors further observe that the phra, 1993 under section 2(1) (d), adopts a broad definition of “human rights,” which tends to include all of the rights enshrined in international, regional, and domestic instruments (ganhri, 2018, g.o 1.2). thereby empowering the commission to receive and intervene into instances of all the rights violation (i.e. civil, political, social, economic, cultural etc.). iii. the authors further observe that although the “paris principles” do not mandatorily require an nhri to have a complaint redressal mechanism (ganhri, 2018, g.o 2.9), the phra however goes a step further by granting the commission quasi-judicial authority. the clinical establishment act, 2010 juvenile justice (care and protection of children) act, 2015 the prison act, 1894 employment of manual scavengers and construction of dry latrines (prohibition) act, 1993 protection of children from sexual offences act, 2012 the prevention of torture bill in consonance with the international convention against torture, 1984 fig. 9 legislations on which the nhrc advised the government. (source: secondary analysis of the nhrc annual reports). http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 19 5. statutory limitations in the working of the national human rights commission the nhrc is an independent body, not subservient to any agency. however, one must remember that the commission’s functioning, to some extent, can never be detached from the state. as a result, scepticism about the state’s commitment to establishing a solid and independent institution for investigating its state agents is entirely justified. (sripati, 2000, p.16). to keep scepticism to a minimum, the drafters of the phra have done an excellent job by entrusting the commission with a broad mandate and powers to ensure its independence (phra, 1993, § 12). the commission’s past performance and active intervention in numerous incidents of human rights violations has further instilled trust in the commission’s working amongst the masses(singh, 2018). however, the authors opine that while the nhrc has established its credibility and worth against the stigmas of being yet another institution, some inherent weaknesses within the statute continue to act as barriers in the commission’s functioning time and again. 5.1 legal constraints section 18 (phra, 1993) states that wherein the commission’s findings disclose a human rights violation, it may “recommend” to the concerned government or authority to compensate or initiate prosecution against the delinquent officer. the phra, however, does not provide for a mechanism to make the recommendations mandatorily enforceable against the concerned government or authority. india has approximately one billion people, more than 60% of which reside in the rural areas (kapoor, 2022). as a result, the nhrc, which provides a straightforward method for filing complaints and a thorough outreach programme, serves as a safety net for the underprivileged and vulnerable. however, the nation as a whole gets negatively impacted if the nhrc’s recommendations are dismissed and not taken seriously. with such restricted recommendatory authority, the commission’s ability to uphold human rights is thereby rendered ineffective, and the citizen’s right to access justice is blatantly denied. 5.2 jurisdictional constraints the international brunt of the atrocities inflicted upon the citizens by the military forces due to the applicability of special acts such as the “armed forces (special powers) act, 1958 [afspa]” gave birth to the commission (banerjee, 2003). however, it is paradoxical that the commission lacks full-fledged powers to investigate allegations of human rights violations levied against armed forces (phra, 1993, § 19). the commission only has the power to seek a report from the central government either on its motion or based on a petition involving a human rights violation by the armed forces; the commission, on receipt of the said report, makes the necessary recommendations to the government; the government, as a result, has to submit its comments only on the action taken by it upon the requests within three months (ibid). http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 20 presently, the afspa is applicable within the districts of five states of india i.e. “kashmir, assam, manipur, nagaland, and arunachal pradesh”(hub network, 2023). controversies surrounding the act within the aforementioned areas have been repeatedly brought forth by various human rights outfits (ibid). the controversies include alleged “fake encounters” and torture against civilians by armed personnel (extra judicial execution victim & anr. v. union of india & ors., 2012). giving restricted jurisdiction to the nhrc w.r.t the armed forces, is thereby detrimentally in two ways:first that it can lead to some of the gravest human rights violations to go unattended, thereby violating the victims’ and survivors’ rights to justice and redressal (amnesty international, 2015; human rights report, 2022) and second, that it creates doubt and hostility in the minds of the public against the armed forces due to the lack of transparency in military trials (chri, 1998, pp. 5-6). 5.3 limitation in taking cognizance of the complaints the commission is prohibited from investigating complaints where the alleged human rights violation occurred more than one year before the date of filing the complaint (phra, 1993, § 36(2)). atrocities committed against women and the weaker sections of the society are some of the gravest human rights violations within the country. the data of the ncrb depicts that a total of 4,28,278 cases of crime against women and 59,702 cases of crime against persons belonging to the scheduled caste and scheduled tribes were committed in 2021 (ncrb, 2021). given the prevalent inequality in society, there are numerous barriers social and economic that can prevent a victim of a human rights violation from approaching authorities on time. many citizens in the country’s rural and remote areas may be unaware of the institution. because of a lack of support at home, victims may lack the courage to approach the institution. as a result, by the time they are made aware of it or muster the courage to file an official complaint, the complaint may become non-cognizable due to time constraints. as a result, the authors conclude that the one-year limitation period becomes a significant impediment to obtaining justice in many genuine cases. 6. ways to enhance the capabilities of the nhrc 6.1 the indian judiciary on the protection of human rights act, 1993 i. dk basu v. state of west bengal, 1986 while considering the application filed by amicus curie on the failure of the state governments (sg) to establish shrcs and hrcs, the hon’ble supreme court (sc) dwelt on the response filed by the states (dk basu v. state of west bengal, 1986). the hon’ble supreme court rejected the sg’s long-standing claim that the use of the word ’may’ in section 21 was directory in nature and did not make it mandatory for the states to establish a shrc (ibid). the court accordingly held that http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 21 “whether or not the word ’may’ should be construed as mandatory and equivalent to the word ’shall’ would depend upon the object and the purpose of the enactment under which the said power is conferred as also related provisions made in the enactment” (ibid). as a result, the court directed all the defaulting states to mandatorily set up shrc(s) within their respective states, without further delay (ibid). the court further observed that the failure to establish a shrc is violative of the citizens “right to access justice” under article 21 of the constitution of india (ibid). the court stated “human rights violations in the states that are far removed from the nhrc headquarters in delhi itself makes access to justice for victims from those states an illusion… we need to remember that access to justice so much depends upon the ability of the victim to pursue his or her grievance before the forum competent to grant relief ”(ibid). ii. extra judicial execution victim & anr. v. union of india & ors., 2012 while hearing the current petition, the nhrc drew the attention of the supreme court to some of the difficulties it encountered in carrying out its responsibilities (extra judicial execution victim & anr. v. union of india & ors., 2012). it claimed that the institution receives a huge number of complaints on a daily basis and hence has been requesting the central government for an adequate number of trained people. the government however has turned a deaf ear to its repeated pleas.(ibid). the court in response to this observed that “considering that such a high powered body has brought out its difficulties through affidavits and written submissions filed in this court, we have no doubt that it has been most unfortunately reduced to a toothless tiger. we are of the clear opinion that any request made by the nhrc in this regard must be expeditiously and favourably respected and considered by the union of india otherwise it would become impossible for the nhrc to function effectively and would also invite avoidable criticism regarding respect for human rights in our country” (ibid). the court thereby urged to the union government to take note of the commission’s concerns and address them as soon as possible in order to achieve the goals of justice (ibid). iii. state of uttar pradesh v. national human rights commission, 2016 the hon’ble allahabad high court dwelt upon the question – “whether the use of the expression ’recommend’ in sections 12 and 18 (phra, 1993) can be treated as merely http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 22 an opinion or a suggestion likely to be ignored at will by the respective government or authority” (state of up v. nhrc , 2016) in response to the question, the division bench ruled that the authorities are absolutely bound by the recommendations made by the nhrc/shrc, as anything contrary to that would render the institution infructuous (ibid). the hon’ble court further stated that because the phra does not grant the right to file an appeal, the only option available to the concerned government or authority in the event of disagreement with the recommendation is to seek judicial review (ibid). iv. abdul sathar v. principal secretary to government, home department, 2021 following the same line of reasoning prescribed by the hon’ble, allahabad high court, a full bench of the hon’ble madras high court held that – “the recommendation is binding, the state has no discretion to avoid implementation of the recommendation and in case the state is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the commission” (abdul sathar v. principal secretary to government, home department, 2021). the court further recommended that section 18 of the act be amended to include an internal mechanism for enforcing its recommendations (ibid). v. paramvir singh saini v. baljit singh & ors., 2020 the hon’ble sc court directed all the state governments to designate hrcs in each district of the state (paramvir singh saini v. baljit singh & ors., 2020). the court additionally directed every police station within the state to “prominently display at the entrance and inside the police stations/offices of investigative/enforcement agencies about a person’s right to complain about human rights violations to the nhrc/shrc, hrc or the superintendent of police or any other authority empowered to take cognizance of an offence”(ibid). in light of the statutory limitations within the phra, 1993 and the views given by the indian judiciary on some of the provisions of the phra, 1993 the authors propose the following amendments to the phra, 1993 for improving the nhrc’s compliancy with the “paris principles”. 6.2 proposed amendments to the phra, 1993 a) maintaining plurality within the commission maintaining plurality within the commission is the first and foremost requirement in strengthening the institution. the presence of members from diverse backgrounds, such as ngos, civil societies, humanitarian groups, lawyers, doctors, etc., has a threehttp://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 23 pronged effect, first, it helps in maintaining the institution’s independence; second, it helps in effectively achieving its mandate due to their more extensive outreach and third it helps in gaining public confidence. the phra presently only outlines the pool from which the members can be selected. the authors thereby suggest an amendment to the act to expressly lay down the criteria as well as the procedure for the appointment of the members. this would thereby help include passionate and experienced members of society to serve as the country’s guardians of human rights. the authors additionally, suggest that the commission should actively maintain communication with its “sister commissions” to benefit from their experiences in handling complaints specific to the groups that the respective commission caters to. furthermore, complaints that fall out of the jurisdiction of the nhrc, such as human rights violation committed by a private person, can be referred to the appropriate “sister commission” (nhrc, 1994, reg.9). b) greater financial independence adequate financial autonomy is one of the primary considerations for any independent institution to carry out its business. the nhrc has often been seen in the past, talking about its constant struggle with the scarcity of resources (verma, 2020). with the nhrc going digital and increasing awareness about the institution’s existence, it is bound to get bombed with a bulk caseload, requiring added workforce to manage the work. the fact that presently the cent al government reserves the right to make the final decision on the nhrc’s budget raises the possibility of political meddling (phra, 1993, § 32). the authors thereby suggest an amendment to section 32, phra4. wherein the central government should be required to pay the commission amount that the parliament has approved after making the proper allocations without any restriction. c) a permanent and independent special investigative teams (sit) the phra, 1993 states that if the commission believes it is appropriate to proceed with an investigation, it may seek the assistance of any officer or investigation agency under the authority of the state/central government (ibid, § 11). given the majority of complaints the commission receives, police officials are often drawn from the existing pool of police forces (ganhri, 2017, p.20). the involvement of police officers investigating complaints, particularly in complaints wherein their fellow police officers are accused of human rights violations, go against the tenets of natural justice. in this regard, the authors suggest that an amendment should be made to section 37 of the phra. section 37, presently states that “notwithstanding anything contained in any other law for the time being in force, where the government considers it necessary so to do, it may constitute 4 section 32 grants by the central government. “the central government shall, after due appropriation made by parliament by law in this behalf, pay to the commission by way of grants such sums of money as the central government may think fit being utilised for the purposes of this act.” http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 24 one or more special investigation teams (sit), consisting of such police officers as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of human rights”. the authors suggest that the sits constituted under section 37 (phra, 1993) should be made permanent and exclusively attached to the nhrc. the recruitment process and transfers made to such sits should be strictly done in consultation with the nhrc members (sripati 2000, p.32). this is to avoid any foul play. additionally, the eligible pool for the sit should preferably be restricted to the new batch of police officials (ibid). the reason for doing this is to avoid any sort of bias and the ease of giving specialised sensitisation training in handling human rights complaints to the fresh recruits. in addition to the police officials, sit should also be inclusive of experts of different competencies (thanawala, 2022). this would help maintain transparency in the investigative process. d) power to make enforceable orders and refer litigation the authors contend that the commission currently lacks the teeth to uphold its statements, directives, or recommendations. the authors thereby propose that the act be modified to grant the commission the authority to issue directives and make pertinent decisions. it should also have the authority to take legal action against a person or authority that disobeys its directives or prevents it from carrying out its mandate. the act has to be amended to explicitly include that the recommendations and the directions are binding in nature and a deadline should be set for the implementation of such orders. the act should also specify what to do in the event when the recommendations are not implemented. e) establishing and enhancing cooperation with state human rights commissions (shrc) due to the vastness of the country, the human rights act empowers all the state governments to establish a shrc within their borders (phra, 1993, § 21). at present, there are 25 states out of the 28 states which have established a shrc within their jurisdiction (nhrc, no date). out of theses 25 states, shrcs from only four (4) states namely, bihar, karnataka, kerala and maharashtra, are functioning under the “human rights commissions network” an online portal created for commissions (hrcn, no date). the online portal helps in providing a centralised approach to handling human rights complaints. given the enormity of the caseload the nhrc faces, the establishment and proper functioning of the shrcs would allow for faster access to a decentralised complaints redressal mechanism (ray, 2003, p. 509). additionally, it would also help the aggrieved parties save money on travel expenses (ibid) furthermore doing so shall also help the nhrc to divert its efforts and time towards the plethora of responsibilities it has been entrusted with as an nhri. the authors thereby urge the http://10.17561/tahrj.v20.7719 ruchita kaundal, s. shanthakumar the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 25 state governments to muster their efforts towards establishing shrcs where they are non-existent and initiate action to bring the defunct shrcs back into operation (nhrc, 2019, p.81). f) establishing and enhancing cooperation with district human rights courts section 30 of the phra directs the state governments to designate every district criminal court within the state to be designated as a hrc. at present 23 out of 28 states and 6 out of the 7 uts are in compliance with the section (ibid, p.85). the nhrc and the shrcs although devoid of the power to prosecute public servants for offences arising from human rights violations; have the power to recommend prosecution for the deviant public official (phra, 1993, § 18(a) (ii)). between 2021 and 2022 itself the nhrc received 2307 cases of custodial deaths from across the country (jain, 2022). however, no prosecution was directed in any of the cases (ibid). the authors believe that simply awarding compensation for such gruesome violations appears to fall short of the government’s obligation to provide an effective remedy (pinto, 2018, p. 174). the authors thereby suggest that the nhrc/shrc and the hrcs should work in unison, as doing so shall bring in more credibility to the work done by the nhrc/ shrc. whenever the commission’s investigation reveals that a criminal act, i.e. “an offence arising out of violation of human rights” has been committed, the commission should either directly refer its findings to the prosecuting authority, i.e. the special public prosecutor for human rights appointed to conduct cases in the hrc or direct the victim to approach the hrc. the commission should further use its power to intervene into proceeding involving a violation of human rights (phra, 1993, § 12(b)) to ensure that a thorough resolution of the issue raised in the complaint. the authors opine that while the defaulting states must endeavour to establish the hrcs, the inherent defect within the act pertaining to the functioning of the courts is a cause of concern. the provisions pertaining to hrcs within the phra are quite restricted. the phra merely provides for the establishment of these courts, with no additional explanation on the court’s mandate and powers (nhrc, 1996, p.56). thereby, creating confusion. as a result, the authors propose that section 30 (phra, 1993) be revised to expand the powers and scope of the courts. the proper functioning of the hrcs can be a breather for the victims of gruesome human rights violations, and will additionally help the nhrc achieve its mandate of protecting human rights in the country. 7. conclusion theoretically, the nhrc complies with the “paris principles”. the commission has been given a broad mandate, particularly in taking suo moto cognizance of complaints. through this the nhrc’s work has been both preventive and penetrative. the commission’s activities are diverse, focusing on political and civil rights and actively promoting economic, social, and cultural rights. however, certain flaws, such as the lack of pluralism within the commission members, lack of a permanent and independent investigative teams, noncooperation from the governments’ http://10.17561/tahrj.v20.7719 assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 26 in honouring the recommendations of the commission, financial crunch, lack of manpower, jurisdictional constraints, and so on, impede the commission’s ability to function effectively. this is not to say that the commission should be crippled by its limitations. on the contrary, it should focus on developing new methods and practices for promoting and protecting human rights such as utilizing the potential of the existent district hrcs and the shrcs, while equivalently 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(1998). “permeation of human rights philosophy into municipal law”, indian law institute, 40(1/4), pp. 131–137. available at: https://www.jstor.rg/ stable/43953313. ray, a. (2003). “national human rights commission of india: formation, functioning and future prospects”, khama publishers, new delhi. available at: https://books.google. co.in/books?id=e2di76mxj0ic&printsec=frontcover#v=onepage&q&f=false. sahani, v. (2017). “un report recommends deferring nhrc accreditation till year end”, live law, 11 february, 2017. available at: http://www-livelawin.gnlu. remotlog.com/un-report-recommends-deferring-nhrc-accreditation-till-year-end/. singh, u.k. (2018). “the inside -outside body”, economic and political weekly, 53(5), 3 february, 2018. available at: https://www.epw.in/journal/2018/5/ perspectives/%e2%80%98inside%e2%80%93outside%e2%80%99body-. html?0=ip_login_no_cache%3df48d7862f067d1fa0ad765432801c539. somanathan, s. (2010). “protection of human rights, act -1993 – human rights courts in india”, indian journal of human rights and social justice, 5(1-2) pp.217-240. sripati, v. (2000). “india’s national human rights commission: a shackled commission?”, boston university international law journal, 18(1), pp. 1–46. available at: https://www.legal-tools.org/doc/138856/pdf. sugunakararaju, s. r. t. p. (2012). “social movements and human rights in india: an overview”. the indian journal of political science, 73(2), 237–250. available at: http://www.jstor.org/stable/41856586. thanawala, s. (2022). “india’s human rights record under scrutiny as nhrc prepares for renewal of accreditation with ganhri sca”, the leaflet, 8 july, 2022.available at: https://theleafletin/indias-human-rights-record-under-scrutinyas-nhrc-prepares-for-renewal-of-accreditation-with-ganhri-sca/. tiwana, m. (2004). “needed: more effective human rights commissions in india”, access to justice program, chri. available at: https://www.humanrghtsinitiative. org/publications/nl/articles/india/needed_more_effective_hr_comm_india.pdf. un (2010). “national human rights institutions history, principles, roles and responsibilities”, united nations, new york and geneva, pp. 1–238. available at: https://www.ohchr.rg/sites/default/files/documents/publications/pts-4rev1nhri_en.pdf. verma, g. (2020). “need more power to become a “toothful” tiger: nhrc chief hl dattu”, the indian express, 14 february, 2020. available at: https://indianexprss. com/article/india/need-more-power-to-become-a-toothful-tiger-nhrc-chief-hldattu-6267161/. http://10.17561/tahrj.v20.7719 https://www.jstor.rg/stable/43953313 https://www.jstor.rg/stable/43953313 https://books.google.co.in/books?id=e2di76mxj0ic&printsec=frontcover#v=onepage&q&f=false https://books.google.co.in/books?id=e2di76mxj0ic&printsec=frontcover#v=onepage&q&f=false http://www-livelawin.gnlu.remotlog.com/un-report-recommends-deferring-nhrc-accreditation-till-year-end/ http://www-livelawin.gnlu.remotlog.com/un-report-recommends-deferring-nhrc-accreditation-till-year-end/ https://www.epw.in/journal/2018/5/perspectives/%e2%80%98inside%e2%80%93outside%e2%80%99body-.html?0=ip_login_no_cache%3df48d7862f067d1fa0ad765432801c539 https://www.epw.in/journal/2018/5/perspectives/%e2%80%98inside%e2%80%93outside%e2%80%99body-.html?0=ip_login_no_cache%3df48d7862f067d1fa0ad765432801c539 https://www.epw.in/journal/2018/5/perspectives/%e2%80%98inside%e2%80%93outside%e2%80%99body-.html?0=ip_login_no_cache%3df48d7862f067d1fa0ad765432801c539 https://www.legal-tools.org/doc/138856/pdf http://www.jstor.org/stable/41856586 https://theleafletin/indias-human-rights-record-under-scrutiny-as-nhrc-prepares-for-renewal-of-accreditation-with-ganhri-sca/ https://theleafletin/indias-human-rights-record-under-scrutiny-as-nhrc-prepares-for-renewal-of-accreditation-with-ganhri-sca/ https://www.humanrghtsinitiative.org/publications/nl/articles/india/needed_more_effective_hr_comm_india.pdf https://www.humanrghtsinitiative.org/publications/nl/articles/india/needed_more_effective_hr_comm_india.pdf https://www.ohchr.rg/sites/default/files/documents/publications/pts-4rev1-nhri_en.pdf https://www.ohchr.rg/sites/default/files/documents/publications/pts-4rev1-nhri_en.pdf https://indianexprss.com/article/india/need-more-power-to-become-a-toothful-tiger-nhrc-chief-hl-dattu-6267161/ https://indianexprss.com/article/india/need-more-power-to-become-a-toothful-tiger-nhrc-chief-hl-dattu-6267161/ https://indianexprss.com/article/india/need-more-power-to-become-a-toothful-tiger-nhrc-chief-hl-dattu-6267161/ assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris principles relating to the status of national human rights institutions the age of human rights journal, 20 (june 2023), e7719 issn: 2340-9592 doi: 10.17561/tahrj.v20.7719 32 web pages hrcn. human rights commissions network. available at: https://hrcnet.nic.in/hrcnet/ public/home.aspx. nhrc. national human rights commission portal. available at: https://nhrc.nic.in/. ochcr. office of the high commissioner for human rights. available at: https://www. ohchr.org/en/instruments-listings. received: 23 january 2023 accepted: 27 april 2023 http://10.17561/tahrj.v20.7719 https://hrcnet.nic.in/hrcnet/public/home.aspx https://hrcnet.nic.in/hrcnet/public/home.aspx https://nhrc.nic.in https://www.ohchr.org/en/instruments-listings https://www.ohchr.org/en/instruments-listings assessing the effectiveness of the national human rights commission, india, vis-à-vis the paris prin abstract 1. introduction 2. historical background nhri 2.1 rationale behind establishing nhris 2.2 un campaign to promote nhris 2.3 what are nhris and the “paris principles”? 3. protection of human rights in india 3.1 development of human rights law in india 3.2 events contributing to the establishment of the nhrc 4. domestic institutionalisation of human rights in india 4.1 an overview “the protection of human rights act 1993” 4.2 analysing nhrc’s compliance with the paris principles (secondary analysis) 4.2.1 pluralistic representation within the composition of the nhrc vis a vis independence 4.2.2 selection and appointment procedure of the members of nhrc vis a vis structural independenc 4.2.3 financial and administrative autonomy 4.2.4 broad mandate 5. statutory limitations in the working of the national human rights commission 5.1 legal constraints 5.2 jurisdictional constraints 5.3 limitation in taking cognizance of the complaints 6. ways to enhance the capabilities of the nhrc 6.1 the indian judiciary on the protection of human rights act, 1993 i. dk basu v. state of west bengal, 1986 ii. extra judicial execution victim & anr. v. union of india & ors., 2012 iii. state of uttar pradesh v. national human rights commission, 2016 iv. abdul sathar v. principal secretary to government, home department, 2021 v. paramvir singh saini v. baljit singh & ors., 2020 6.2 proposed amendments to the phra, 1993 a) maintaining plurality within the commission b) greater financial independence c) a permanent and independent special investigative teams (sit) d) power to make enforceable orders and refer litigation e) establishing and enhancing cooperation with state human rights commissions (shrc) f) establishing and enhancing cooperation with district human rights courts 7. conclusion references primary sources international treaty law international law national constitutions national law national case laws secondary sources international resolutions international reports national reports books and articles web pages human rights, internally displaced persons, access to legal aid for internally displaced persons, the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 1 protection of rights of internally displaced persons amid military aggression in ukraine1 yurii prytyka2, iryna izarova3, oksana uhrynovska4, nazar shestopalov5 abstract: this article is devoted to the study of the legal status of internally displaced persons in ukraine in the context of the full-scale war launched by the russian federation on 24 february 2022. during the study, an analysis of the doctrinal definition of “internally displaced persons” and the rights guaranteed by it in accordance with the current legislation, developed by the verkhovna rada of ukraine and the cabinet of ministers of ukraine, has been carried out. the article highlights the guiding principles of the international law that should be applied by the states when solving the problem of internal displacement, as well as specific examples of the measures taken by various european countries to solve this problem. rights of internally displaced persons on right to employment and to receive special housing allowance were analysed as main guaranties. right to free legal aid was considered as the key point guarantee for ensuring access to justice and protection of rights. experience of states with similar experience of war (serbia, bosnia and herzegovina, georgia) were studied. the conclusions focus on the problems of effective implementation of the right of internally displaced persons to free legal aid and summarize the need to improve the effective mechanism of protection of rights of internally displaced persons, which may also be of interest for the european states that sheltered more than 8 million ukrainians during the war. keywords: human rights, internally displaced persons, access to legal aid for internally displaced persons, right to employment for internally displaced persons, right to receive special housing allowance for internally displaced person, ukraine. introduction the end of the second world war was marked by consolidation of the principle of territorial integrity or territorial inviolability of the state as a principle of international public law, according to which the territory of any sovereign independent state shall be deemed inviolable from encroachment by other states, in the united nations charter (1945), as well as in the declaration on the strengthening of international security (unga, 1 this article was prepared as part of the scientific project ‘justice in the context of sustainable development’ project no. 22bf042-01 (2022-2024). 2 doctor of juridical science, professor, head of the department of civil procedure educational and scientific institute of law of taras shevchenko national university of kyiv (prytykau@knu.ua). 3 doctor of juridical science, professor, educational and scientific institute of law of taras shevchenko national university of kyiv (irina.izarova@knu.ua). 4 candidate of juridical science, associate professor of the department of civil law and procedure of ivan franko national university of lviv (oksana.ugrunovska@gmail.com). 5 student of the 1st year of the master’s programme at the faculty of law of ivan franko national university of lviv, majoring in “justice and judicial administration” (nazarshestopalov10@gmail.com). http://10.17561/tahrj.v20.7711 mailto:prytykau@knu.ua mailto:irina.izarova@knu.ua mailto:oksana.ugrunovska@gmail.com mailto:nazarshestopalov10@gmail.com protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 2 1970). the first article of the constitution of ukraine of 28.06.1996 (verkhovna rada of ukraine, 1996) irrevocably and permanently enshrines the provision that ukraine is a sovereign, independent, democratic, social, and legal state (berchenko, slinko and horai, 2022; khater, 2022)6. despite this, in february-march 2014, the russian federation7, in violation of several the international law regulations, invaded the territory of ukraine on a full-scale basis, creating many political and legal problems (prytyka et al., 2022)8, causing huge losses and displacement of people, seeking to escape from the war. on 24 february 2022, around 4:30 a.m. in the morning, the citizens of ukraine and the entire world community received a reminder that the events of 2014 were only a small prologue in the “russian world’s” ode to the capture of a sovereign neighbouring state. the cynical and illegal full-scale invasion of the troops of the russian federation into ukraine renewed the relevance of the topic of occupied territories and internally displaced persons (hereinafter – idps) who were forced to leave such territories against their will. during the first months of the war, approximately 43,300 sq.km. (7% of the territory of ukraine) were under russian occupation and millions of its inhabitants became displaced. it is quite hard to count the affected displaced persons. the official statistics of the ministry of social policy of ukraine state that the number of people registered in the unified information database of idps increased from 1 446 881 people in 2020 to more than 4 million people as of june 2022 (of which: 47% are children of various ages) (filipchuk and syrbu, 2022). although this figure of 4 million is far from reality, because according to the data of the international organization for migration, the actual number of idps in ukraine has long since exceeded 8 million (27% of people from kharkiv region, 16% from donetsk region, 7% from zaporizhzhia region) (iom, 2022a), however, most refugees from the occupied territories avoid obtaining the official status of an internally displaced person for various reasons. the issue of ‘invisible people’, which is also discussed below, is one more problem that should also be studied and discussed. according to the un (2022), about 12 million people may be affected by the war in ukraine. within ukraine, the forced migrants became 14.2% of the total population of ukraine that is 6,275 million persons (iom, 2022b). it should be noted that this figure has decreased by 0.9 million persons since may 23 and the dynamics of returns is increasing, although 12% of the individuals note that they may leave home again because of the war. in the end, no matter what the official statistics are, the fact is undeniable that arma potentius aequum (justice is stronger than weapons), and therefore ukrainian legislation and the judicial system faced the task of solving a few new issues related to 6 read more about the territorial integrity of ukraine in the work by berchenko, slinko and horai (2022), as well as in the work by khater (2022). 7 authors would like to retain the right to use the name of aggressor state not from the capital letter. 8 see more about legal issues in such publications as prytyka, izarova, maliarchuk and terekh (2022). http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 3 legal protection of idps– a huge group of persons that should be classified as vulnerable due to the circumstances which they undergo. during the attack in february, ukraine did not have the opportunity to immediately give a decent military response to the aggressor, at the same time, the verkhovna rada of ukraine and the cabinet of ministers of ukraine, performing the main function of the state – protecting the rights and freedoms of the citizens and guided by the principle of amat victoria curam (victory loves preparation), did everything dependent on them to react as quickly and qualitatively as possible to the actions of the russian military in crimea, donetsk and luhansk regions (ilnytskyy, 2022; kaplina, kravtsov and leyba, 2022; khotynska-nor and bakaianova, 2022; prytyka et al., 2022; uhrynovska and slyvar, 2022), by implementing their main functions. it is under these circumstances that the ukrainian legislation was supplemented by such regulatory legal acts as: 1. law of ukraine on ensuring the rights and freedoms of citizens and legal regime in the temporarily occupied territory of ukraine no. 1207-vii of 15 april 2014; 2. law of ukraine on ensuring the rights and freedoms of idps no. 1706-vii of 20 october 2014 (hereinafter referred to as the “law no. 1706-vii”); 3. resolution of the cabinet of ministers of ukraine on provision of monthly targeted assistance to idps to cover living expenses, including payment for housing and communal services no. 505 of 1 october 2014 (hereinafter referred to as the “resolution no. 505”); 4. resolution of the cabinet of ministers of ukraine on accounting of idps no. 509 of 1 october 2014 (hereinafter referred to as the “resolution no. 509”); 5. resolution of the cabinet of ministers of ukraine on implementation of social payments to idps no. 637 of 5 november 2014 (hereinafter referred to as the “resolution no. 637”). these acts have been analysed in detail in this article, and their compliance with international soft law acts, defining main approaches to regulation of the relations with participation of internally displaced persons, has been determined. it must be taken into account that ukraine since 2014 also comprises the “temporarily occupied territory” (crimea and parts of eastern ukraine), in regard to which two laws were passed – the law of ukraine on ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of ukraine of 15 april 2014, no. 1207-vii (verkhovna rada of ukraine, 2014a) and the law of ukraine on particular aspects of public policy aimed at safeguarding the state sovereignty of ukraine over the temporarily occupied territory of the donetsk and luhansk regions of 18 january 2018, no. 2268-viii (verkhovna rada of ukraine, 2018). the promotion of the rights and freedoms of ukrainian citizens residing in the temporarily occupied territory of ukraine and in certain territories of donetsk and luhansk regions where the state authorities temporarily do not exercise their powers are an important task for the ukrainian executive authority. a few transformation stages were undertaken – in 2016 the ministry of temporary occupied territories and idps was http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 4 created (cabinet of ministers of ukraine, 2016; 2019)9; during 2019 this ministry was joined with the ministry of veterans; in april 2021 the ministry for reintegration of the temporary occupied territories was recreated (cabinet of ministers of ukraine, 2020)10. it should be noted that since 2014, more than one and a half million inhabitants of ukraine were forced to leave their homes (ministry of social policy of ukraine, 2018)11 and approximately 5 million live on these temporarily occupied territories, accounting for 13% of the total population of ukraine (state statistics service of ukraine, 2020)12. the above-mentioned severe burden may be considered an additional, even transitional, challenge in rule of law and access to justice implementation and development in ukraine and will be focused on in this paper. during the period of full-scale war in 2022, the civilian population suffers significantly from military actions: common citizens are forced to leave their homes, saving their lives and partially their property from destruction. moving in such conditions to a new, often temporary place of stay, they face many new challenges, which they would have never encountered in their pre-military life. we must mention various war traumas, caused by war activities and occupation since 2014, especially to those who have been displaced by the ongoing conflict (internally displaced people), who have significantly higher levels of ptsd compared to urban-dwelling people (johnson et al., 2022; kim et al., 2022)13. at the same time, ensuring proper implementation of human rights and freedoms is extremely important, because equal rights for all are the basis of modern legal doctrine, and forced migrants are vulnerable persons, requiring special attention. taking into account the number of the population of ukraine (more than 41.130 million people (state statistics service of ukraine, 2022)), as well as the scale of the military operations that have been carried out since the end of february 2022 (ministry for reintegration of the temporary occupied territories of ukraine, 2022b)14, special 9 the name of the ministry was changed when it was joined with the ministry of veteran affairs in august 2019. the directive concerning this ministry was approved by resolution no. 887 of the cabinet of ministers of ukraine (2019). 10 for more information see the website of the ministry <https://minre.gov.ua>. 11 according to data of the ministry of social policy of ukraine (2018), as of 07.05.2018, 1.502.019 migrants from the donbas region and crimea were taken in account. 12 information from the speech of the minister of temporary occupied territories and idps at the plenary session of the 74th general assembly of the un on 16 december 2019. according to the state statistics service of ukraine (2020) as of 1 december 2017 this accounts for 42.403.200 people. complex statistical publications see the website of the state statistics service of ukraine <http://www.ukrstat.gov.ua/druk/ publicat/kat_u/publ1_u.htm>. 13 anyway, it is important to understand how idps are vulnerable for choosing the appropriate types of private dispute resolution. 14 according to the data of the ministry for reintegration of temporary occupied territories of ukraine (2022b), the list of the territorial communities, located in the areas of military (combat) actions, or which are temporary occupied, surrounded (blocked) include 313 communities from 9 regions. http://10.17561/tahrj.v20.7711 https://minre.gov.ua http://www.ukrstat.gov.ua/druk/publicat/kat_u/publ1_u.htm http://www.ukrstat.gov.ua/druk/publicat/kat_u/publ1_u.htm yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 5 attention shall be paid to the study of the problems of access of idps to justice, as well as to improvement of the mechanisms of alternative settlement of disputes with their participation in order to reduce costs and ensuring efficiency, without narrowing the rights of these persons. to understand the background of the eastern europe in case of idps it should be mentioned (axmann, 1998). important tendencies of ukrainians towards the eu and central european societies, particularly after the revolution of dignity and the beginning of the russian-ukrainian armed conflict. before the full-scale war 2022 started, ‘despite the emergence of the phenomenon of internally displaced persons, the main way in which ukrainians reach europe remains labour migration’ (lendel, 2016). it is also important for our research that the following groups prevail among internally displaced persons: elderly (51%), children under 17 (42%), as well as 12% of persons who were already internally displaced in 2014-2015 (kofman et al., 2017; un, 2014)15. with this in mind, we made an attempt to summarize in this article provisions of the national legislation on the status of idps and characterize the specifics of their rights protection on the example of access to free legal aid. the concept of “internally displaced person” is defined at the level of international documents, as well as at the level of the national legislation; at the same time, in our opinion, it needs some clarification in connection, in particular, with the need to ensure protection of the rights of individuals. 1. idps in international and ukrainian legislations who are idps and refugee – numbers of studies examine the notions from all of the world (adeola, 2022; datta, 2022; orchard, 2018), at both levels – national and international legislations. it is widely shared, that both idps and cross-border refugees were caused by the spanish civil war, this helps to understand challenges that the war and subsequent post-war period may introduced in the realm of humanitarian protection for displaced populations, and how international policies may protect those displaced by the conflict (rodrigo and alegre lorenz, 2022). nevertheless, the notion was introduced in one of the most important documents for regulation the internal displacement – in the 1998 un guiding principles on internal displacement (2004; cournil, 2009). the guiding principles outline 30 standards for the protections available to internally displaced people. these are soft law guiding principles that help to create a base on the global level, ‘while the guiding principles mark an important step forward, implementation of laws and policies based on them at the domestic level remains haphazard’ (orchard, 2018). 15 in 2014, the territory of ukraine was occupied, namely the crimea was annexed, as well as the eastern territories of ukraine. http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 6 glossary on migration (iom, 2019) and guiding principles on internal displacement (un, 2004), annexed to the united nations commission on human rights contains the following notion of idps: idps – persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular because of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border. displaced persons – persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, either across an international border or within a state, in particular because of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters16. the next important step of the soft law creation was the kampala convention on internally displaced persons, adopted in october 2009 (african union, 2009; cournil, 2009). the article 1 of this convention defines idps as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border”. this kampala convention also recognizes the important role of various groups. it mandates a role for international organizations and humanitarian agencies, which is important for our research. in general, we may agree with the idea that ‘the global compacts were the result of three wider shifts in global governance from hard to soft law, from rights to aid, and from cold war politics to nationalism’ (micinski, 2021). nevertheless, to look on the idps only from viewpoint of politic is a mistake, therefore a distinct field of idp law is now emerging (cantor, 2018). some of triggers may help to identify while the landscape of national laws and regional frameworks on internal displacement has flourished, overall implementation has been problematic (adeola and orchard, 2020). the current legislation of ukraine establishes the legal framework for existence of such a category of persons as “internally displaced”. the legal framework for regulating 16 glossary on migration and guiding principles on internal displacement, annexed to united nations commission on human rights, report of the representative of the secretary-general, mr francis m. deng, submitted pursuant to commission resolution 1997/39, addendum (11 february 1998) un doc e/ cn.4/1998/53/add.2. http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 7 the status of idps was developed in ukraine back in 2014 and has not undergone significant transformation over the past 8 years, except for resolution no. 505, which was repealed by resolution no. 332 of the cabinet of ministers of ukraine on some issues related to payment of housing allowances to idps of 20 march 2022 (hereinafter referred to as the “resolution no. 332”). the answer to the question “who are these idps according to the ukrainian legislation?” is provided by article 1 of law no. 1706-vii, which states that: “an internally displaced person is a citizen of ukraine, a foreigner or a stateless person who stays in the territory of ukraine on legal grounds and has the right to permanent residence in ukraine, who was forced to flee or leave their place of residence as a result of or in order to avoid the negative consequences of the armed conflict, temporary occupation, widespread manifestations of violence, violations of human rights and emergency situations of a natural or man-made nature” (verkhovna rada of ukraine, 2014b). it was incredibly rightly mentioned that idps are ‘invisible people’. we should keep into account that the concept of the idps is far from being ideal – some authors mentioned on groups of people, who left out of the frames of the concept of internally displaced persons, for instance ‘those who are forcibly resettled and left unintegrated, are rendered invisible’ (regasa and lietaert, 2022). it is also worth noting that simultaneously with the adoption of law no. 1706vii, a system of accounting for idps in the form of the unified information database of internally displaced persons, kept by the ministry of social policy of ukraine, became operational in ukraine. thus, to obtain the status of an internally displaced person, each displaced person from the occupied territories must get a “certificate on registration of an internally displaced person.” this certificate is drawn up in accordance with the procedure specified by resolution no. 509 (cabinet of ministers of ukraine, 2014a), by applying to the social protection department at the new (actual) place of residence. such an application must contain data on the applicant’s identity, as well as confirmation of the circumstances that caused his/her internal displacement. it is positive that the legislative provisions of paragraph 2 of part 1 of article 1 of law no. 1706-vii remove the burden of proving such circumstances from individuals, calling them commonly known, but only on the condition that “data on such circumstances is contained in the official reports (notices) of the united nations high commissioner for human rights, the organization for security and co-operation in europe, the international committee of the red cross and the red crescent, the ukrainian parliament commissioner for human rights, posted on the websites of these organizations, or if, in relation to such circumstances, authorized state bodies have adopted the relevant decisions” (verkhovna rada of ukraine, 2014b). given this, in modern conditions of a full-scale invasion, the process of obtaining a certificate is reduced only to filling out an application and attaching the copies of the necessary documents to it, and the certificate itself shall be issued free of charge immediately on the date of submission of the application and shall be indefinite. http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 8 moreover, the ukrainian government reacted so quickly to the beginning of a fullscale war on 24 february 2022 that already in march idps were able to apply for registration through the unified state web portal of electronic services “diya” (hereinafter referred to as the “diya portal”). diya portal is a mobile application, storing official documents of ukrainians in an electronic version on a smartphone and can be used as full-fledged original copies in relations with public authorities, local self-government bodies and enterprises, institutions, organizations. thus, at present, it is possible to issue a registration certificate in just a few minutes, having a smartphone and internet access. however, despite simplicity of the procedure, the number of idps registered in the system is far from the reality, as most people refuse to be registered or due to the fact that, after receiving a certificate, it will be necessary to register at the territorial centre of recruitment and social support (the former “military commissariat”) at the new (actual) place of residence, or because of the boundless hope for a quick de-occupation of the territories and return home. in addition, in part 10 of article 4 of law no. 1706-vii, the legislator defined the grounds for refusing to issue a certificate of registration of internally displaced persons: an applicant may be denied the issue of the certificate of registration of an internally displaced person if: 1) there are no circumstances that caused internal displacement, defined in article 1 of the law; 2) public authorities have information about submission of knowingly false information for obtaining a certificate; 3) the applicant has lost his/ her identity documents until they are restored; 4) the applicant has no record of residence registration on the territory of the administrative and territorial unit from which the internal displacement is being carried out, and there is no evidence confirming the fact of residence on the territory of the administrative and territorial unit from which the internal displacement is being carried out, as defined in part seven of this article; 5) the evidence provided by the applicant to confirm the fact of residence in the territory of the administrative and territorial unit from which the internal displacement is being carried out in connection with the circumstances specified in article 1 of this law, does not prove the fact of the applicant’s residence in the territory of the specified administrative and territorial unit (verkhovna rada of ukraine, 2014b). a person has the right to apply again if he/she has the grounds specified in article 1 of law no. 1706-vii, or if the obstacles to obtaining a certificate provided for above have been removed, or to appeal the decision to deny the issue a certificate of registration internally displaced person to the court. we have to admit that jurisdiction for idps remains quite controversial – despite the changes of settlement and residence, idps cannot apply to the court for jurisdiction at the place of their actual stay, since the certificate of registration of an internally displaced person does not confirm the registered place of stay and claims should be submitted to the competent courts who administer justice instead of those located in the temporarily occupied territories. http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 9 summarizing the legal mechanism for obtaining registration documents, we would like to note that legal registration as an internally displaced person provides such persons with the following possibilities: the right to receive monthly assistance from the state; the right to re-register pension and other social benefits at the new (actual) place of residence; the right to medical care (including reimbursement of the cost of necessary medicines); the right to continue education in the territory of the new (actual) place of residence (for children of preschool age, schoolchildren and students); the right to free legal aid. we will analyse these and other rights of internally displaced persons, as well as their duties in the next section of this article. summarising this part, we have to mentioned, that an important issue war solved in amended version of law no. 1706-vii, this definition assigned the citizens of ukraine to the category of internally displaced persons, depriving foreigners and stateless persons who were forced to leave the eastern part of ukraine of the right to receive protection in connection with the armed conflict and temporary occupation of territories, but fortunately, this gap has already been filled. in general, the fixed definition reflects the concept contained in the law of ukraine, at the same time, it does not contain a restriction that concerns their crossing of the state border (who have not crossed an internationally recognized state border). this makes it possible to realistically identify a group of internally displaced persons, regardless of the definition of the borders of the state. 2. legal status of internally displaced persons: guarantees of rights’ protection it is quite natural that presence of a certain legal status in a person means for such a person availability of at least some privileges or special rights and obligations. idps are no exception to this general rule, so the state has granted them a few benefits that should ease the already difficult fate of such people. war is a horrible thing by its nature, even though we must ensure the protection of rights and appropriate regulation for all who are involved (izarova, 2022). the main burden of ensuring the special rights and obligations of idps falls on those regions of ukraine that have accepted the largest number of such persons, namely: kyiv region – 13% of the total number of internally displaced persons; dnipropetrovsk region – 12%; lviv region – 8%; kharkiv region – 8%; poltava region – 7%. it is understandable that the large numbers of idps moved to major ukrainian cities as kyiv and lviv, as well as east region, which is the farer from the border part of country (havryliuk, 2022). nevertheless, most of the ukrainian territory is rural area, which is also feel suffer from influx of idps to the countryside (mamonova, 2022). the first and probably the most important right, guaranteed by ukraine to internally displaced persons, is the right to employment. every internally displaced person who has lost his/her job due to occupation of the territories (which, according to official statistics, is 64% of the total number of idps in ukraine) (filipchuk and syrbu, 2022) can http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 10 apply to the state employment service at new (actual) place of residence for registration as unemployed. the status of unemployed entitles an internally displaced person to unemployment benefits in the amount from uah 1,800.00 (eur 46.2) to uah 9,750.00 (eur 250) (depending on average salary and insurance experience). in addition, the state also took care of protection of the most socially vulnerable sections of the population that experienced internal displacement – pensioners. according to the data from the international organization for migration, 49% of all idps are elderly (over 60 years old), of which 26% are disabled. this category of idps retained the right to pension, despite moving to a new (actual) place of residence. in accordance with resolution no. 637, payment of pensions to idps shall be carried out by territorial bodies of the pension fund of ukraine based on the information contained in the unified information database of internally displaced persons (cabinet of ministers of ukraine, 2014b). that is, to receive pension support at the new (actual) place of residence, an internally displaced person needs only to apply to the nearest territorial body of the pension fund of ukraine with an application for appointment/extension of the pension payment. moreover, it is worth adding that the minimum amount of pension support in ukraine, despite the war, increased from uah 1,934.00 (eur 49.6) (as of 01 january 2022) to uah 2,027 (eur 52) (as of 1 july 2022), and the total amount of monthly pension expenses is approximately uah 47.8 billion (eur 1.2 billion) (ministry of finance of ukraine, 2022). in addition, one of the main privileges granted by the status of an internally displaced person is the right to receive special housing allowance. such allowance shall be provided based on the abovementioned resolution no. 332 to the persons who have moved from the territory of ukraine being temporarily occupied by the russian federation, as well as the territory of administrative and territorial units where hostilities are taking place (cabinet of ministers of ukraine, 2022a). it is important to emphasize that the list of such units was determined recently by the cabinet of ministers of ukraine (2022b) in order no. 204-р of 6 march 2022 for the purpose of implementation of the special government program “esupport”. since introduction of this program in march 2022, payment of special allowance has been divided into two stages: 1. until april 2022, all idps registered in the unified information database of idps had the right to monthly allowance. the amount of such allowance made up uah 2,000.00 (eur 51.3) for ordinary persons and uah 3,000.00 (eur 76.9) for the persons with disabilities and children; 2. from may 2022, those idps whose homes were destroyed or damaged in connection with the war launched on 24 february 2022 will also receive allowance. as regards the case with the right to pension, the allowance is not automatically received by an internally displaced person, but only based on a specially submitted application for housing allowance to the social protection authorities. for the sake of fairness, it should be recognized that due to transfer of ukraine’s economy to a state of war, many idps have still not received any payments for the previous months, despite the fact that there are many foreign programs and funds that help ukraine financially. http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 11 for example, back in march 2022, the office of the united nations high commissioner for refugees started paying monthly payments in the amount of uah 2,220.00 (€56.9) to each internally displaced person for three months, covering 360,000 displaced persons with this program (ministry for reintegration of the temporary occupied territories of ukraine, 2022a). the international committee of the red cross and the red cross society of ukraine formed a joint budget of uah 2.4 billion (eur 61.5 million to provide financial assistance to idps (uah 2,500.00 (eur 64.1) per person) (tkachenko, 2022). other support programs are as follows: a joint program of unicef and the ministry of social policy of ukraine (uah 110 million (eur 2.8 million) monthly); the program of the international organization for migration (uah 700 million (eur 17.9 million); the program of the norwegian refugee council (uah 1.5 billion (eur 39.4 million), etc.). in conclusion, the legal status of internally displaced persons (idps) in ukraine includes a comprehensive list of rights such as the ability to obtain identity documents, participate in affordable housing programs, vote in elections, access communal services, receive temporary accommodation, maintain family unity, and receive assistance in returning to their previous place of residence. the right to employment is considered a fundamental right for idps in ukraine, and special provisions are made for the protection of socially vulnerable groups such as pensioners. 3. access to legal aid for idps in ukraine access to justice is a fundamental right and a cornerstone of a modern democratic state governed by the rule of law, a right guaranteed by the universal declaration of human rights (unga, 1948) and the european convention on human rights (coe, 1950). it gives every person the right to a fair trial, the right to be heard by a court, the right to a legal aid, and so on (farrow, 2014; silvestri, 2014; uzelac and van rhee eds., 2009; cappelletti, garth and trocker, 1982)17. non-discrimination is the essential element of the delivering of access to justice (un, 2023). and there is no similar access to justice in all eu member states (european union agency for fundamental rights, 2023). in case of displaced people participation in civil proceedings it is much more difficult to implement fully these fundamental rights. the sustainable development goals (un, 2015b) directly address the need to ensure that all have equal access to justice and the creation of effective, affordable, and inclusive institutions at all levels (kristoffersson and qandeel eds., 2021)18. these lead us to pay special attention to such persons who are vulnerable, such as temporarily displaced persons from ukraine, when they need the protection of their rights and have to take part in dispute resolution (krakhmalova, 2019)19. 17 some insights from the us and from europe. 18 see more about sustainable development in civil procedure in law in sustainability in east-nordic procedural law in the work by kristoffersson and qandeel eds. (2021). 19 this issue attracts some attention, for instance see more krakhmalova (2019). http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 12 the right of idps to receive free legal aid play a crucial role. pursuant to subparagraphs 21-22 of part 1 of article 14 of law of ukraine no. 3460-vi on free legal aid of 02.06.2011 (verkhovna rada of ukraine, 2011a), the citizens of ukraine who have applied for registration as internally displaced persons, as well as the idps themselves, shall have the right to free legal aid. such free aid shall include protection, representation of interests before courts, other public authorities, local self-government bodies, as well as drawing up procedural documents. according to the official statistics of the ministry of justice of ukraine, idps take the third place (about 80,000 people) in terms of the number of applications for free legal aid (kolomijecj, 2022). the absolute majority applied for restoration of lost documents, obtaining the status of an internally displaced person, obtaining financial assistance and compensation for the lost property. in addition, during the period of martial law, idps often apply for establishment of the facts of legal significance (for example, the fact of birth, death, family ties, cohabitation and dependent status, ownership over documents, confirmation of work experience, etc.) (21.4%); conclusion and dissolution of marriage (17.2%), as well as collection of alimony (15.3%). there are also rare cases of appeals for protection of labour rights, namely, termination of employment due to the fact that the workplace is located in a combat zone, and protection of the rights to social benefits (ministry of justice of ukraine, 2023). the ukrainian law provides for benefits and additional support to internally displaced persons, which were introduced at the beginning of the war in ukraine in 20142015. in particular, according to the law of ukraine on court fees" (verkhovna rada of ukraine, 2011b), the following persons are exempted from paying court fees during the consideration of a case in all court instances: 21) applicants – in cases of applications for the establishment of facts of legal significance submitted in connection with armed aggression, armed conflict, temporary occupation of the territory of ukraine, emergency situations of a natural or man-made nature that led to forced resettlement from temporarily occupied territories of ukraine, death, injury, imprisonment, illegal deprivation of liberty or abduction, as well as violation of the right of ownership of movable and/or immovable property; 22) plaintiffs – in cases of claims against the aggressor state of the russian federation for compensation for property and/or moral damage caused in connection with the temporary occupation of the territory of ukraine, armed aggression, armed conflict that led to forced resettlement from the temporarily occupied territories of ukraine, death, injury, imprisonment, illegal deprivation of liberty or abduction, as well as violation of the right to ownership of movable and/or immovable property (article 5). according to the law of ukraine on free legal aid" (verkhovna rada of ukraine, 2011a), idps have the right to protection; representation of the interests of persons entitled to free secondary legal assistance in courts, other state bodies, local self-government bodies, before other persons; as well as drawing up procedural documents (articles 13 http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 13 and 14). citizens of ukraine who applied for registration as idps have the same rights in matters related to obtaining a certificate of registration of an internally displaced person, until the moment of receipt of a certificate of registration of an internally displaced person (except protection). the civil procedural code of ukraine included provisions on the peculiarities of proceedings in cases of establishing the fact of birth or death of a person in the temporarily occupied territory of ukraine (article 317) (verkhovna rada of ukraine, 2004); the recognition of a missing person is primarily aimed at protecting these persons (uhrynovska and onyskiv, 2022). at the same time, ensuring equal access to justice for idps is not an easy task that cannot be solved by providing free legal aid and court fee exemptions. the number of conflicts involving idps, as well as the specifics of the relationship between them, especially in cases of family, labor, inheritance conflicts, necessitates a wider use of alternative methods of dispute resolution. ensuring access to court for representatives of such a vulnerable group of persons as idps cannot be considered a full-fledged effective protection of their rights access to free legal aid and the cancellation of court fees does not cover all the problems of such persons. the creation of alternative out-of-court schemes will make it possible to resolve emerging disputes faster and cheaper, considering their nature (as well as the details clarified during interviews) and the behavior of individuals (in particular, the tendency to amicably resolve disputes or seek compromise in resolving disputes), as well as the tendency to apply for help from lawyers. and most importantly, alternative dispute resolution provides greater opportunities for preventing disputes, as well as maintaining normal relations between the parties to the dispute for the future. what are the relevant details for idps. 4. legal protection of idps in countries with experience of war and armed conflicts we believe that the above analysis of the legal status of idps will be incomplete without a comparison with the already existing international practices of protecting internally displaced persons, as well as an analysis of the resolutions of the parliamentary assembly of the council of europe (hereinafter referred to as the “pace”), which related to the actions of the russian federation on the territory of ukraine. for example, resolution no. 2122 of the parliamentary assembly of the council of 21 april 2016 (pace, 2016a) qualifies the actions of the russian federation against a part of the territories of luhansk and donetsk regions as military aggression, which leads to the following violations of human rights: torture, inhuman treatment and humiliation of human dignity, sexual violence, illegal arrests and lack of access to a fair trial. another pace (2016b) resolution no. 2132 on political consequences of russian aggression in ukraine of 12 october 2016 condemns illegal annexation of the crimean peninsula and its subsequent integration with the russian federation, as this violates international law and the statute of the council of europe, and “calls on the russian http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 14 authorities to abolish illegal annexation of crimea and allow ukraine to regain control over the peninsula.” existence of effective control over the abovementioned temporarily occupied territories was also confirmed by pace (2016c) resolution no. 2133 of 12 october 2016. namely, the resolution states that the so-called “dpr” and “lpr” are under the effective control of the russian federation and were created in violation of ukrainian legislation and international law. according to this resolution, the attempted annexation of crimea “violates the international law and principles supported by the council of europe”, and presence of the russian federation and presence of effective control in crimea “were officially recognized by the russian authorities”. based on the mentioned pace resolution and articles 43-46 iv of the hague convention (regulations of international humanitarian law) (hague conference, 1907), the occupying state shall be responsible for protection of the population and undertakes to respect the rights and lives of individuals who are in the temporarily occupied territory. in cases of violations of fundamental human rights in the temporarily occupied territories, legal responsibility rests with the russian federation, which actually exercises control over the specified territories. it is a well-known fact that since the beginning of the 1990s, such countries as: cyprus, croatia, bosnia and herzegovina, georgia, montenegro, serbia, turkey, etc. have faced the problem of internally displaced persons. the reasons for such displacement were armed conflicts: the turkish invasion of cyprus in july-august 1974 (200,000 cypriots were forced to leave their homes) (loizidou v. turkey, 1995, para. 62); yugoslav (southern serbian) wars of 2000-2001 (4 million people became displaced) (unhcr, 2023); the russian-georgian war of 2008 (230,000 georgians were displaced) (fawkes, 2008), etc. however, despite difference in time periods and the reasons that led to internal displacement, there is much in common between the situations in modern ukraine and the abovementioned european countries. in particular, the greatest analogy may be traced in the challenges faced by the idps of each country. for example, the problem of housing for idps in the already mentioned yugoslavia (southern serbia) was so severe that the serbian government introduced a program called “rural houses”. the essence of this government program was that the government, by providing financial assistance, encouraged idps to buy old houses in the countryside, restore them and further develop the household by growing agricultural crops (kälin, 2009). today, a similar program called “affordable housing” operates in ukraine, according to which idps have the right to state support in the amount of 50% of the cost of purchasing a new housing. given that, according to the ministry of communities and territories development, the army of the russian federation has already destroyed or damaged about 116,000 residential buildings (lotocjka, 2022), therefore, introduction of this program was an extremely timely step on the part of the ukrainian government. another example is that the idps of bosnia and herzegovina (and there were 1.8 million of them during the “bosnian war” of 1992-1995) repeatedly faced the http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 15 problem of receiving pensions, until the pension fund of the country was divided into three completely separate funds, which ensured payment of pensions in three different administrative regions of bosnia and herzegovina. it is worth noting that such a division completely saved the situation with pension payments to internally displaced persons. at the same time, bosnia and herzegovina faced a problem in the field of education, as many internally displaced pupils and students had no opportunity to continue their studies in educational institutions at their new place of residence. the government of the republic introduced a special system according to which educational documents were mutually recognized by all educational institutions within the country (muni, 2017). it is worth noting that with the beginning of the full-scale war, the government of ukraine also took measures in the field of education and introduced state-targeted support for education seekers who are registered as internally displaced persons, in the form of full payment of education at the expense of the state or local budget, payment of social scholarships, free support textbooks, etc. in georgia, during the russian-georgian war of 2008, in the law on idps from the occupied territories of georgia, the legislator specifically envisaged a section, regulating the issue of expenditures from the state and local budgets for internally displaced persons (parliament of georgia, 1996). this law directly distributed various expenses for idps between state bodies and institutions: for example, the ministry of idps was obliged to pay monthly allowances, while local authorities had to compensate idps for the costs of housing, communal services, and burial in case of death. this approach of the georgian legislator ensured the uninterrupted flow of state funds to idps and their effective use for their intended purposes. such examples are only a concise compilation of the problems of idps of each country, but they confirm the fact that the challenges faced by idps of ukraine are far from new and international practice already has ready and, most importantly, effective mechanisms for solving them, and the government of ukraine only needs to adapt such mechanisms to modern realities. within the scope of this study, it is also worth mentioning that all the mechanisms described above, despite their individual nature, are based on the provisions of several international regulations, ensuring legal status of internally displaced persons. we would like to emphasize that much less attention is paid to idps in international law than, for example, to the same refugees who are under the protection of the un convention on the status of refugees of 1951, which is legally binding for all signatories. instead, protection of idps takes place on the basis of such regulations as: un guiding principles on internal displacement (un, 2015a) (ratified by ukraine on 17 april 1998) (hereinafter referred to as the “un guiding principles”) and recommendations of the committee of ministers of the council of europe to member states on idps (coe committee of ministers, 2006) (hereinafter referred to as the “recommendation of the committee of ministers of the council of europe”), each of which in its essence is only a recommendatory act outlining the most general methods and means of protection of internally displaced persons. that is why cyprus, bosnia and herzegovina, georgia, serbia once faced, and ukraine is now facing the problem that the effective protection http://10.17561/tahrj.v20.7711 protection of rights of internally displaced persons amid military aggression in ukraine the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 16 of idps relies entirely on the state itself, and not on the international community (again, unlike protection of the same refugees). however, the role of the un guiding principles should not be underestimated, as they, although generally, define the rights and guarantees of protection for idps not only during their displacement, but also contain safeguards to avoid forced displacement (for example , principle no. 7 of the un guiding principles imposes on the authorities the obligation to consider all possible alternative solutions to avoid displacement, before making a decision to relocate persons) (un, 2015a). pursuant to principle no. 3: “the state shall be entrusted with the primary duty and responsibility to provide protection and humanitarian assistance to idps under its jurisdiction” 15, which confirms our thesis above that each state shall be independently responsible for proper protection of internally displaced persons. among other principles, it is also worth highlighting: 1. the principle of prohibition of discrimination of internally displaced persons; 2. the principle of protection against arbitrary displacement of a person from his/ her place of permanent residence; 3. the principle of special protection of indigenous peoples and minorities from displacement; 4. the principle of banning the conscription of internally displaced children for military service; 5. the principle of mandatory provision of humanitarian assistance to internally displaced persons; etc. we would like to summarize the analysis of the un guiding principles with the thesis that the regulations of law of ukraine no. 1706-vii do not fully correspond to the prescriptions of these un guiding principles and do not envisage a number of principles, the consolidation of which would significantly improve the legal status of internally displaced persons, and therefore we recommend to revise law of ukraine no. 1706-vii in the near future and bring it into line with the un guidelines. as regards the recommendation of the committee of ministers of the council of europe, the preamble of this act states the goal of “implementing the un guiding principles in the european context and further development of some of these principles on the basis of the existing standards of the council of europe” (coe committee of ministers, 2006).to achieve this goal, the committee of ministers recommends that member states of the council of europe be guided by a list of 13 principles, fixed in this recommendation. it is worth paying attention to the fact that, to a greater extent, these principles echo, and in some parts even fully duplicate the un guiding principles. however, an important innovation in the recommendation of the committee of ministers of the council of europe is principle no. 10, which calls on states to develop preventive measures, such as strategic action plans, to be applied during a crisis that may lead to internal displacement. however, most states, including ukraine, ignore this principle, taking measures ex post facto. http://10.17561/tahrj.v20.7711 yurii prytyka, iryna izarova, oksana uhrynovska, nazar shestopalov the age of human rights journal, 20 (june 2023), e7711 issn: 2340-9592 doi: 10.17561/tahrj.v20.7711 17 summarizing all of the above, it is worth noting that there are not many regulations in the international law that determine the legal status of idps (in contrast to the countless resolutions of the parliamentary assembly of the council of europe, which express endless “concern”, “worries” and “regret” with regard to the situation in ukraine). and yet, ukraine, having adopted a number of regulations since 2014, at the legislative level coped quite well with the task of ensuring protection of internally displaced persons, while taking into account both the existing international practice of other states and the guidelines used by the un and council of europe. 5. instead of a conclusion despite the considerable scope and content of this article, it covers only a small part of the global problem of rights protection of internally displaced persons. even though this problem has existed for more than a century, the international community has not invented a relevant mechanism for its quick and effective resolution, putting the main burden on the national governments of states that faced with the necessity to provide idps with support. to a large extent, precisely because of this approach to the problem of internal displacement, the state of ukraine, having experienced the armed aggression of the russian federation in 2014, was forced, almost from scratch, to create a regulatory framework that would allow introducing the category of idps into the legal field, determining their legal status and protection mechanisms. as already have been mentioned in the text of the article, the acts adopted by the verkhovna rada of ukraine and the cabinet of ministers of ukraine during the period of several months of armed aggression largely corresponded to the principles of international law and allowed in practice to effectively implement various types of support programs for internally displaced persons. nevertheless, we should not forget that since 24 february 2022, the armed conflict between ukraine and russia has turned into a full-scale war, which continues. this war quite naturally gives rise to an ever-increasing number of internally displaced persons, and therefore the need to study international practice and introduce new mechanisms for protection of the rights and interests of idps into the legislation of ukraine. ensuring equal access to justice for all is not a simple task even in peacetime, defined among the sustainable development goals. this task becomes a serious challenge in the conditions of war and large-scale displacement of persons who are forced to seek shelter, and must also be ensured access to basic rights, including access to justice. participation in the process of the representatives of such a vulnerable group of persons as temporarily displaced persons cannot be considered a full-fledged mechanism for ensuring such access – access to free legal aid and cancellation of court fees does not cover all the problems of such persons. creation of alternative out-ofcourt mechanisms will make it possible to prevent and settle emerging disputes in a 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[accessed 10 april 2023]. received: 17th january 2023 accepted: 17th april 2023 http://10.17561/tahrj.v20.7711 https://news.un.org/en/focus/ukraine https://news.un.org/en/focus/ukraine https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice https://www.unhcr.org/see/where-we-work https://www.unhcr.org/see/where-we-work yurii prytyka; iryna izarova; oksana uhrynovska; nazar shestopalov protection of rights of internally displaced persons amid military aggression in ukraine introduction 1. idps in international and ukrainian legislations 2. legal status of internally displaced persons: guarantees of rights• protection 3. access to legal aid for idps in ukraine 4. legal protection of idps in countries with experience of war and armed conflicts 5. instead of a conclusion references 'so... what exactly is to be done?': the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 1 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system eduardo marchant vivanco* abstract: this article explores the specific measures that states should adopt for the national implementation of reasonable accommodations —a key feature of the un convention on the rights of persons with disabilities and a critical tool in addressing disability equality and non-discrimination. it argues that the convention itself offers limited guidance on this issue, suggesting that state parties should turn to the practices of un human right bodies for orientation, despite acknowledging challenges in doing so. the main finding highlights that the national implementation of reasonable accommodations demands a series of measures across different domains, emphasizing that mere incorporation into national legislation is necessary but not sufficient. keywords: reasonable accommodations, disability human rights, disability discrimination, united nations human rights system, international human rights bodies. 1. the united nations convention on the rights of persons with disabilities: a new dawn for reasonable accommodations? on 13 december 2006, the united nations general assembly adopted the convention on the rights of persons with disabilities (cprd), the first international human rights treaty which comprehensively addresses the rights of persons with disabilities. since coming into force on 3 may 2008, specialized literature has pointed out that a distinctive feature of the crpd is the explicit incorporation of reasonable accommodations for persons with disabilities (rapd) in its text (e.g. kayess and french 2008: 27; lawson 2008b: 65; quinn 2009: 92; mégret and msipa 2014: 253; broderick 2015: 152–153; degener 2020: 352). in this regard, the crpd has been celebrated as a milestone, as it is the first binding instrument of international law to explicitly enshrine provisions on rapd (e.g. lawson 2008b: 80; lord and brown 2009: 273; broderick 2015: 152–153; cera 2017b: 167; nilsson 2018: 76). rapd regulation within the text of the crpd is deployed at different levels, which can be distinguished according to their greater or lesser degree of generality. the first level has the general definitions contained in article 2 of the crpd, which establishes what is understood for ‘discrimination on the basis of disability’ and ‘reasonable accommodation’ * universidad austral de chile (eduardo.marchant@uach.cl). orcid: 0000-0002-1659-1357. millennium nucleus studies on disability and citizenship (disca), chile. millennium institute for care research (micare), santiago, chile. http://doi.org/10.17561/tahrj.v21.8258 mailto:eduardo.marchant@uach.cl https://orcid.org/0000-0002-1659-1357 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 2 for the purposes of this treaty. the second level has the provision found in article 5.3 of the crpd, which establishes states parties’ obligation to adopt ‘all appropriate steps to ensure that reasonable accommodation is provided’. finally, the third level has provisions which explicitly refer to rapd application in relation to regulating certain specific rights. despite the various articles in the crpd that refer to rapd, the mere text of the treaty does not provide sufficient guidance to states parties on how to implement these measures in their respective national jurisdictions. in this regard, although the treaty establishes in article 5.3 that states parties shall adopt all appropriate steps to ensure that rapd is provided, the crpd does not clarify what kind of measures should be taken to comply with this provision. aware of the need to complement the gaps in the crpd, several bodies of the united nations human rights system (unhrs) have developed guidelines for national rapd implementation. however, due to the multiple bodies involved and the variety of documents providing such guidelines, there is no exhaustive and clear systematization regarding the specific measures that states parties to the crpd should adopt for the national implementation of rapd. it is essential to note that the need for guidance is not the same for all states parties to the crpd. some national jurisdictions already had legal provisions and case law on rapd before the crpd was adopted and came into force. for example, prior to adopting the crpd, most european countries already had legal provisions on the duty to provide rapd in employment after transposing council directive 2000/78/ec (employment equality directive) (see, e.g. waddington 2007: 629–631). in these cases, the need for guidance is related to how to adapt or harmonize the existing legal framework following crpd ratification. a substantially different situation exists for states parties where rapd incorporation took place precisely because of crpd ratification. more guidance is needed in these cases, since these countries cannot rely on prior experience and these measures’ novelty means that it is not always clear what they consist of and how to apply them (see, for the case of chile, marchant 2023). although these countries can learn from comparative experiences, it does not guarantee a national implementation that aligns with the international standards envisaged by the crpd and developed by unhrs bodies. given that rapd is a critical tool to ensure that people with disabilities can enjoy human rights (see, e.g. de asís 2016; ferri 2018), the objective of this article is to identify, systematize, and critically analyze the measures which states parties must adopt for national rapd implementation, based on the text of the cprd and the practices of unhrs bodies. for this purpose, the article will be structured as follows. the next section will provide a general overview of rapd regulation in the crpd, aiming to identify and characterize the main normative basis that obliges states parties to implement rapd in their respective jurisdictions (2). subsequently, the article will identify and systematize the guidelines provided by unhrs bodies to implement rapd in national jurisdictions (3). a critical analysis of these guidelines will then be conducted, highlighting three particularly relevant challenges for this case: the diversity of voices within the same forum, the lack of awareness, and the authority of interpretations by unhrs bodies (4). the article will conclude with a synthesis of the main findings and arguments presented (5). http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 3 2. too many articles, too little said: the regulation of reasonable accommodations in the crpd given that some of the guidelines for rapd implementation in national jurisdictions are directly derived from the crpd provisions, it is essential to begin by clarifying the features of rapd regulation in the treaty. 2.1. definition of reasonable accommodation: article 2 crpd article 2 crpd defines reasonable accommodation as ‘necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. based on this definition, the following essential characteristics of rapd in the crpd have been identified: i) the identification and removal of barriers that impact the enjoyment of human rights by persons with disabilities; ii) the necessity and appropriateness of modifications or adjustments to address specific barriers affecting a particular person with disabilities; iii) the adoption of modifications or adjustments that do not impose an undue or disproportionate burden on the duty-bearer; iv) the requirement to find a response or solution that accommodates the individual circumstances of the person with disabilities; and v) the essential objective of promoting equality and eliminating discrimination by enabling persons with disabilities to enjoy all human rights on an equal basis with others (broderick 2015: 215). previous literature has argued that the discussion regarding the content and scope of the duty to provide rapd was one of the main controversies concerning these measures during the crpd negotiation process (nilsson 2018: 66). precisely on this matter, at least three aspects of rapd need to be addressed: their material application scope, their personal application scope, and the criteria for determining when a particular modification or adjustment should be provided as rapd. the definition provided by article 2 crpd (which speaks of ensuring “all human rights and fundamental freedoms”) and its incorporation into the principles of equality and non-discrimination determine that rapd have a very broad scope of material application (e.g. lawson 2008a: 30; quinlivan 2012: 80; waddington and broderick 2018). this means that, notwithstanding explicit rapd references in the regulation of various substantive rights enshrined in the crpd, the duty to provide rapd extends to both civil and political rights, as well as economic, social, and cultural rights (lawson 2008b: 67; broderick 2015: 112; cera 2017b: 170). due to this particular breadth, it has been argued that, at least within the crpd, the duty to provide rapd acts as a catalyst for a more cohesive understanding of these two classes or categories of rights, which have traditionally been interpreted in separate compartments (lawson 2009: 82). according to the provisions of the crpd, the question of who can invoke the duty to provide rapd and who is obliged to fulfill this duty can be clarified as follows. for the http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 4 first point, the automatic response would be that persons with disabilities are entitled to do so. however, the interesting issue to clarify lies in whether a person without a disability but who has a close relationship with a disabled person can invoke the duty to provide rapd in their favor. the text of the crpd does not explicitly resolve this question. even an originalist interpretation of its text would support rejecting the extension of the duty to provide rapd to persons without disabilities who are associated with disabled persons (waddington 2013: 196). nevertheless, it is widely understood that prohibiting discrimination on the basis of disability includes cases of discrimination by association (quinn 2009: 67; lord and brown 2009: 305; waddington 2013: 195–196; cera 2017a: 112–113; nilsson 2018: 73). therefore, since the duty of non-discrimination also encompasses the duty to provide rapd, it could be argued that a person without a disability but related to a disabled person can indeed invoke this duty in their favor. as for the duty bearers, given the broadness with which these measures are enshrined and the extensive scope of material application in which they can operate, it is understood that a wide range of entities can be subject to the duty to provide rapd. this array of duty bearers would include the state, employers, and providers of education, healthcare, goods, and services, as well as private clubs and organizations (lawson 2008b: 67; lord and brown 2009: 279; broderick 2015: 106). the duty to provide rapd thus encompasses actors and entities in both the public and private sectors; whether an entity is public or private is not a relevant factor in determining the applicability or non-applicability of the duty. beyond determining the material and personal scope of the duty to provide rapd, one of the most significant difficulties involved in implementing this obligation is to determine when a specific modification or adaptation should be implemented as rapd. for this purpose, despite certain terms used while defining rapd in article 2 ("necessary," "appropriate," "disproportionate or undue burden"), the crpd text offers limited assistance. in this regard, crpd scholars and commentators and unhrs bodies have worked to add meaning to that part of the definition in article 2 that refers to necessity, appropriateness, and the absence of undue or disproportionate burden (see, e.g., mégret and msipa 2014: 256–259; broderick 2015: 158–175; de asís 2016: 50–53; cera 2017a: 114–116; nilsson 2018: 80–82). the absence of criteria or guidelines in the crpd to determine when a specific accommodation should be provided has been particularly criticized in the literature, being regarded as the main flaw that can be attributed to rapd regulation in this treaty (gutiérrez 2019: 65). other authors have also argued that the ambiguity of the crpd in this regard impedes determination of the scope of the duty to provide rapd, emphasizing the need for the committee on the rights of persons with disabilities to exercise its interpretative function in this regard (biel portero 2011: 323). indeed, as the next section will discuss, both this body and other entities within the unhrs have been aware of the necessity to provide criteria for determining when a specific accommodation is required, and a significant portion of their practice regarding rapd has focused on this matter. finally, it is essential to highlight that in the normative framework of the crpd, the notion of reasonableness incorporated into rapd is not equivalent to the notion of proportionality. in the context of the crpd, reasonableness and proportionality of an http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 5 accommodation measure are two distinct elements (broderick 2015: 112; corsi 2018: 164–165). although both elements are part of the evaluation to determine when a specific accommodation shall be provided, reasonableness and proportionality differ in their content and address the interests of different parties to the duty to provide rapd. reasonableness is a reference to the relevance, appropriateness, and effectiveness of a particular accommodation to meet the requirements of the disabled person. proportionality sets a limit on the pool of possible accommodations that the duty bearer would be required to provide, excluding those adaptations that would impose excessive or unjustifiable burden on the accommodating party (see committee on the rights of persons with disabilities 2018a: para. 25). 2.2. states parties’ duty to take measures ensuring reasonable accommodations: article 5 crpd article 5 crpd establishes a set of provisions regarding equality and nondiscrimination. particularly on rapd, paragraph 3 of this article states that ‘in order to promote equality and eliminate discrimination, states parties shall take all appropriate steps to ensure that reasonable accommodation is provided’. this provision explicitly manifests the link between rapd and equality for persons with disabilities, stating that these measures serve the specific purpose of promoting equality and eliminating discrimination. various authors have praised the incorporation of rapd in article 5 crpd. it has been asserted that ‘the incorporation of a state obligation to ensure that reasonable accommodations are made […] is perhaps the most fundamental instrumental element of the convention’ (kayess and french 2008: 27). shortly after its entry into force, it was also predicted that rapd would become the most important legal concept of the crpd (kallehauge 2009: 211). additionally, it has been stated that the state obligation to guarantee rapd fulfillment is a crucial measure of substantive equality, as these measures help facilitate the exercise of rights by persons with disabilities (cera 2017b: 169). moreover, based on the incorporation of rapd in article 5.3, many authors have argued that the crpd enshrines a 'right to reasonable accommodation' (eg. biel portero 2011: 322–323; broderick 2015: 155; cera 2017b: 167; pyaneandee 2019: 31; degener 2020: 352). as kayess and french stated, article 5.3 crpd imposes an obligation on states parties to ensure the realization of rapd in their domestic jurisdictions (2008: 27). the subsequent question is: what concrete and specific measures should states parties take to fulfill this obligation? once again, the crpd text does not provide much guidance in this regard, merely stating that states parties ‘shall take all appropriate steps to ensure that reasonable accommodation is provided’. although this matter will be addressed in-depth in the following section based on the practice of unhrs bodies, it is worth highlighting certain scholarly contributions on this issue. according to lawson, under article 5.3 crpd, states parties are obligated to incorporate a duty to provide rapd into their national legislations, initiate awarenessraising campaigns, and provide subsidies and incentives to help implement these measures (2007: 599, 2008a: 32). in more detail, broderick identifies several measures based on the http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 6 objectives that the crpd assigns to rapd, distinguishing between measures associated with promoting equality and measures associated with eliminating discrimination. measures linked to the former point include: i) conducting campaigns to sensitize and educate the judiciary, legal practitioners, persons with disabilities, the general public, and private entities regarding rapd and how its application contributes to the equality of persons with disabilities; and ii) developing codes of practice and guidelines on the duty to provide rapd. on the other hand, measures associated with the latter point would include: i) ensuring that rapd denial is included as a form of discrimination in national legislation and policies; ii) ensuring that national legislation and policies do not contain provisions impeding fulfillment of the duty to provide rapd; iii) ensuring that private entities remove discriminatory barriers that lead to denying the right to receive rapd; and iv) providing effective legal remedies for persons with disabilities who have been discriminated against due to rapd denial (2015: 114–115). 2.3. reasonable accommodations in specific contexts: articles 14, 24 and 27 crpd alongside articles 2 and 5.3, the crpd explicitly refers to rapd in the regulation of three specific rights: article 14 (freedom and security of the person), article 24 (education), and article 27 (employment). the specific incorporation of rapd in articles 14, 24, and 27, however, does not imply that these are the only areas where rapd applies. as previously mentioned when discussing the definition in article 2 crpd, these measures have an extensive scope of material application, and their operation is not limited to the situations described in articles 14, 24, and 27. nevertheless, the inclusion of rapd in these articles serves a useful purpose in signaling or reinforcing certain aspects of the rapd regulatory framework in the crpd, such as: i) emphasizing that rapd always operates at an individual level, based on the particular needs of a person with a disability (article 24.2.c); ii) highlighting the role of rapd as facilitators for the equal exercise of rights for persons with disabilities (articles 14.2; 24.5; 27.1.i); and iii) explicitly stating that when incorporating the obligation to provide rapd in domestic jurisdictions, certain areas (detention and penitentiary facilities, education, and employment) are particularly relevant for rapd application, and states parties cannot exclude them from regulation (lawson 2012: 846; della fina 2017: 460; liisberg 2017: 502; bantekas, pennilas, and trömel 2018: 766). 2.4. denial of reasonable accommodation as discrimination on the basis of disability the crpd explicitly acknowledges the denial of rapd as a form of discrimination on the basis of disability (article 2 crpd). within the framework of the crpd, the purpose of rapd is to ensure equal conditions for individuals with disabilities, by eliminating a specific disadvantage they would face without implementing the adjustment measure (lawson 2010: 12). in this context, by explicitly incorporating rapd denial, crpd commentators have consistently emphasized that this treaty extends the notion http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 7 of discrimination as previously addressed in other united nations human rights treaties (trömel 2009: 123; graumann 2012: 87; mégret and msipa 2014: 253; broderick 2015: 155; degener 2016: 16; cera 2017a: 113). delving further into the incorporation of rapd within the definition of discrimination on the basis of disability, it has been asserted that the crpd does not subsume the denial of rapd within traditional categories like direct or indirect discrimination. instead, it recognizes it as a distinct and independent form of discrimination (lord and brown 2009: 278; grobbelaar-du plessis and nienaber 2014: 373; waddington and broderick 2018: 69). in this way, the crpd takes a clear stance on a point that, both theoretically and in the context of national legislation, has lacked uniformity (khaitan 2015: 76–79; lawson 2010: 17). within this lack of uniformity, the crpd is unequivocal on this matter, and it has been noted that the treaty imposes on states parties the obligation to ensure that rapd denial is explicitly regarded as a form of discrimination (lawson 2008b: 77; waddington 2013: 191; broderick 2015: 115). according to waddington, the classification of the denial of rapd as a form of discrimination is relevant for both symbolic and practical reasons. symbolically, designating rapd denial as discrimination can lead to greater awareness of the importance of fulfilling the duty to provide rapd for the enjoyment of rights by persons with disabilities and the seriousness of non-compliance (2013: 190). in the same vein, other authors have pointed out that including rapd denial within the definition of discrimination on the basis of disability would strengthen the likelihood of compliance with the duty (corsi 2018: 161). from a practical standpoint, classifying rapd denial as discrimination could result in the complainant benefiting from an alteration of the burden of proof in legal disputes arising from non-compliance with this duty (waddington 2013: 190). there may also be consequences in terms of sanctions and remedies for non-compliance with the duty to provide rapd, as in cases of discrimination, ‘judges may be empowered or inclined to order more far-reaching sanctions and remedies’(waddington 2013: 190). lastly, another noteworthy aspect is that the definition in article 2 crpd uses the term ‘discrimination on the basis of disability’ (rather than, for example, ‘discrimination against persons with disabilities’). it has been argued that the protection against discrimination provided by the crpd in this wording focuses on the discriminatory conduct and not on the victim of discrimination. this helps broaden the scope of the anti-discrimination norm, since disability discrimination may occur even in cases where discriminatory conduct does not directly or exclusively target persons with disabilities (palacios and bariffi 2007: 70; quinn 2009: 102; lord and brown 2009: 305; waddington 2013: 195–196; cera 2017a: 112–113; nilsson 2018: 73; gutiérrez 2019: 60). for example, the protection offered by the crpd would include situations of ‘discrimination by association,’ where the affected individual is a person without a disability but is placed in a disadvantaged situation due to their association with a disabled person (e.g. palacios and bariffi 2007: 70; gutiérrez 2019: 60). this interpretation has consequences regarding the obligation to provide rapd, since it expands its scope to include both persons with disabilities and individuals without disabilities associated with them. http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 8 3. from ‘all appropriate steps’ to ‘these steps’: implementing reasonable accommodations according to unhrs bodies having described in-depth the incorporation of rapd in the crpd provisions, this section will address the practice that different unhrs bodies have developed concerning rapd, based on the normative framework provided by this treaty. as we will see, the practice of these bodies contains significant inputs regarding the national implementation of rapd, identifying specific measures that states should take to ensure that rapd is provided and guidelines for rapd application in concrete situations. 3.1. measures to ensure that reasonable accommodation is provided unhrs bodies have noted the problems faced by states regarding protection against disability-based discrimination in general, and concerning rapd in particular. in a 2016 report, the special rapporteur of the human rights council on the rights of persons with disabilities provided a detailed description of the issues experienced by states in dealing with rapd, indicating that various domestic legislations: i) establish more restrictive definitions of rapd than that set forth in article 2 crpd; ii) lack practical guidance on how to apply rapd in specific cases; iii) lack practical guidance on how to assess cases of undue or disproportionate burden; and iv) do not provide for the allocation of specific funds and financing mechanisms for rapd implementation (united nations general assembly 2016: para. 26). more generally, the problems faced by states concerning rapd have also been noted by the office of the united nations high commissioner for human rights, which states in a 2016 report that ‘reasonable accommodation is usually absent in legislation, or is misconstrued or confused with other concepts, such as accessibility’ (human rights council 2016: para. 22). against this background, at least three unhrs bodies have provided useful and relevant guidelines regarding specific measures that states should take to ensure rapd provision: the committee on the rights of persons with disabilities (crpd committee), the special rapporteur of the human rights council on the rights of persons with disabilities (special rapporteur), and the office of the united nations high commissioner for human rights (ohchr). 3.1.1. general guidelines the general guidelines category includes those guidelines that are not directed at a specific area of national legislation and address aspects related to how to incorporate arpd into domestic legal texts, the contents that such regulation should include or exclude, and what other measures states parties should adopt beyond normative consecration to ensure rapd fulfillment. the special rapporteur has emphasized that a key element to establish a comprehensive framework of inclusive policies for persons with disabilities is the development of a non-discrimination framework to ensure the realization of rapd (united nations general assembly 2016: paras. 18–22). rapd implementation should http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 9 aim to ensure that persons with disabilities can enjoy ‘all human rights and fundamental freedoms’ on an equal basis with others (united nations general assembly 2016: para. 24). the duty to provide rapd should also extends to ‘persons associated with a person with disabilities’ (united nations general assembly 2016: para. 24). for its part, the ohchr recommendation is that when incorporating into domestic legislation ‘the duty to accommodate be expressed in an open format so as not to result in exclusion from protection’(human rights council 2009: para. 39). the three unhrs bodies under revision have emphasized that states must expressly establish in their legal and policy frameworks that rapd denial constitutes discrimination on the basis of disability (human rights council 2012: para. 40; united nations general assembly 2016: para. 24; committee on the rights of persons with disabilities 2018a: para. 67). the ohchr has even suggested the possibility of providing for legal sanctions as a consequence of unjustified rapd denial (human rights council 2016: para. 69). the ohchr has indicated certain specific aspects or elements that should be included in the legislative incorporation of rapd. in this regard, it has asserted that ‘rights, duties and time frames for each of the parties involved should be clearly stated’ (human rights council 2016: para. 39). regarding the personal scope of rapd, it has pointed out that the subject of the obligation must be clearly identified by the legislation (human rights council 2016: para. 39). on this topic, the un special rapporteur has indicated that when incorporating the obligation to provide rapd in their domestic jurisdictions, states parties must ensure that it applies to both the public and private sectors (united nations general assembly 2016: para. 27). regarding the material scope of rapd, the ohchr has stated that domestic regulations must address the ‘specific context of implementation’ of these measures (human rights council 2016: para. 69). finally, concerning the elements for concrete rapd application, the ohchr has asserted that national laws and norms should provide guidance on the criteria of feasibility, relevance, and proportionality. in this vein, the ohchr has stated: i) the evaluation of relevance must be carried out by a competent authority, and the cost of this evaluation should not be borne by the requesting person; and ii) states must indicate appropriate criteria for assessing whether the requested adjustment entails an undue or disproportionate burden, ensuring a case-by-case approach (human rights council 2016: paras. 39, 46, 79). the ohchr has also pointed out aspects and elements that should be excluded from the legal regulation of rapd in domestic jurisdictions. in this regard, it has stated that the rapd application should not be conditioned to any type of certification (human rights council 2016: para. 46). the ohchr has also devoted special attention to the factors provided for in national legislation for evaluating the proportionality criterion, stating that, in order to avoid arbitrariness and prevent discrimination, these factors should not be vague or ambiguous (such as those that refer to ‘the morale of other employees’, ‘any other factor affecting efficiency, productivity, success and competitiveness’ or ‘overall economic climate’) (human rights council 2016: para. 49). in the same vein, it has demanded the repeal of discriminatory evaluation factors, understood as those that entail negative or disproportionate consequences for persons with disabilities (human rights council 2016: para. 50). http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 10 finally, the ohchr has expressed that legal and policy frameworks should provide adequate mechanisms to monitor effective compliance with the duty to provide rapd, establishing national monitoring bodies with investigative and sanctioning powers. as an alternative to judicial remedies, the establishment of mediation and conciliation mechanisms should also be considered to allow victims of disability-based discrimination to obtain effective and appropriate reparation (human rights council 2016: paras. 71–72). moving beyond legal consecration, the ohchr has pointed out several measures that states should adopt to ensure rapd implementation. in this regard, it has asserted that promoting equality for persons with disabilities requires active collaboration with the non-state sector. in particular, the ohchr suggests that this cooperation with the non-state sector should involve: i) developing normative guidelines, providing technical assistance, and organizing awareness-raising activities; ii) disseminating information about accessing public or private funding sources for rapd implementation; and iii) allocating specific resources for managing and financing rapd requests (human rights council 2016: paras. 17, 59, 69, 79). the latter has also been stressed by the special rapporteur, who has highlighted the importance of allocating funds and establishing specific financing mechanisms for rapd implementation by competent public institutions and providing training for public officials (united nations general assembly 2016: paras. 26, 78). 3.1.2. guidelines for specific legislation areas the practice developed by unhrs bodies has also provided states with guidelines for rapd implementation in specific areas of legislation, such as employment and education. the ohchr has expressed that states’ labor and employment legislation should: i) impose the obligation to provide rapd; ii) clarify the elements of this obligation; iii) specify the factors to evaluate the reasonableness of rapd; iv) expressly qualify rapd denial as an act of discrimination (human rights council 2009: para. 55, 2012: para. 69). it has also pointed out that the obligation to provide rapd should apply to both public and private sector employers (human rights council 2012: para. 31). in evaluating the proportionality criterion, ohchr has drawn attention to the potentially discriminatory nature of ‘cost-benefit’ analyses, urging their avoidance (human rights council 2016: para. 58). besides enacting legislation and its content, ohchr has indicated other measures to ensure rapd implementation in employment as well. it has referred to the obligation of developing policies that promote and regulate flexible and alternative work arrangements to reasonably accommodate the needs of employees with disabilities (human rights council 2012: para. 31), while also emphasizing that states are obligated to inform, raise awareness, and provide technical assistance to employers, unions, and persons with disabilities regarding the duty to provide rapd (human rights council 2012: para. 33). lastly, ohchr has addressed the need to implement subsidy policies to finance workplace rapd implementation (human rights council 2015: para. 38). the crpd committee recently adopted its general comment no. 8, on the right of persons with disabilities to work and employment, which also provides valuable insights http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 11 regarding rapd implementation in this field. according to the crpd committee, the national implementation of rapd in the workplace involves several measures from states parties, such as: i) providing funding; ii) providing technical and financial assistance to public and private employers; iii) expressly recognizing rapd denial as discrimination; and iv) providing training on rapd for employers (2022: paras. 35, 45, 64). the committee also covered collective bargaining arrangements, stating that ‘when they specify working conditions, the arrangement must include a mechanism by which employees can seek reasonable accommodation’ (2022: para. 34). regarding education, the ohchr has asserted that one of the components of the transition towards an inclusive education system is the implementation of the duty to provide rapd (human rights council 2013: para. 56), which should apply to both public and private educational institutions (human rights council 2009: para. 52). it has also maintained that national legislations must establish sanctions for non-compliance with the duty to provide rapd in education, and states should allocate funding for rapd implementation in educational institutions (human rights council 2013: paras. 41, 63, 71). the crpd committee, for its part, has stated that educational institutions (whether public or private) should not charge additional fees for rapd provision (committee on the rights of persons with disabilities 2016b: paras. 17, 24, 76). 3.2. guidelines for the application of reasonable accommodations in particular cases the practice of the unhrs bodies shows a concrete concern about the identification and provision of criteria to guide practical rapd application. a clear example of this concern is the 2016 ohchr report, which stated that although rapd application in specific situations requires a contextual assessment to be addressed on a case-by-case basis, to date, there were no ‘globally accepted’ criteria for the implementation of these measures. above all, it emphasized the lack of uniform criteria to determine when an adjustment is necessary and appropriate, and when it imposes an undue or disproportionate burden (human rights council 2016: para. 37). to counteract the lack of uniformity in the practical rapd application criteria, both the crpd committee and the ohchr have extensively addressed this issue. based on these bodies’ practice, six different variables can be identified for rapd application in particular cases: i) requesting reasonable accommodation; ii) dialogue; iii) feasibility; iv) relevance; v) proportionality; and vi) objective justification and communication of refusal to provide reasonable accommodation. 3.2.1. requesting reasonable accommodations firstly, both the crpd committee and the ohchr agree that the duty to provide rapd is triggered from the moment a request is made (committee on the rights of persons with disabilities 2016b: para. 28; human rights council 2016: para. 40). however, they have also downplayed the relevance of the rapd request, indicating that it is not a strict prerequisite for these measures’ application. the crpd committee has http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 12 suggested scenarios where the existence of a prior request is not necessary, referring to cases where the duty bearer should have been aware of the need to implement rapd (committee on the rights of persons with disabilities 2018a: para. 24, 2022: para. 19). the ohchr has also highlighted it as a ‘good practice’ for states to implement rapd without requiring a specific request (human rights council 2016: para. 40). the ohchr has stated that making an rapd request can be done ‘orally or in writing, without further formal requirements’ (human rights council 2016: para. 44) and further expressed that states should encourage entities that receive an rapd request to maintain a record documenting such requests and their processing (human rights council 2016: para. 41). 3.2.2. dialogue secondly, according to unhrs bodies under revision, effective rapd implementation requires the establishment of instances of dialogue between the adaptation measure applicant and the request recipient (committee on the rights of persons with disabilities 2018a: paras. 24, 26; human rights council 2016: para. 40). this idea of dialogic interaction has been concretized by the crpd committee, stating that ‘reasonable accommodation must be negotiated with the applicant(s)’ (2018a: para. 24, 2022: para. 19). the ohchr, on its part, has asserted that once an rapd request is made, ‘the person concerned and the entity responsible for its provision should engage in a dialogue to establish the person’s needs and the most appropriate response to them’ (human rights council 2016: para. 45). an interesting aspect of how the ohchr has shaped this dialogue process is that it has taken into consideration that the conditions for this interaction are variable. the conditions will be different, for example, if there is a pre-existing or long-term relationship between the requester and the recipient of the request, or if it is a transient or temporary relationship. in any case, the rapd application always involves a process of reciprocal communication between the requester and the recipient of the request (human rights council 2016: para. 45). the ohchr has invested this dialogue process with certain requirements as well. in rapd implementation, the corresponding dialogue process demands the satisfaction of a certain standard of conduct by those involved (‘both parties must act in good faith and provide for clear communication’), as well as safeguarding confidentiality and protecting requesters’ sensitive personal data (human rights council 2016: paras. 41–42). in the employment field, general comment n° 8 recently adopted by the crpd committee establishes a two-step approach to conduct the dialogic process between employer and employee for rapd implementation. this approach centers the will and preferences of people with disabilities in the accommodation process. first, the employer must work with the individual to identify potential accommodations, including the one that it is preferred by the individual. second, the employer must provide the preferred accommodation for the individual, unless it would impose an undue burden. in this scenario, the employer can decide between two alternative solutions: a) implement another effective accommodation that does not impose an undue burden; or b) implement the preferred accommodation for the individual to the extent possible without experiencing the undue burden (committee on the rights of persons with disabilities 2022: para. 45). according to the crpd committee, failure to comply with this two-step approach constitute denial of rapd, and consequently, discrimination on the basis of disability (2022: para. 45). http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 13 3.2.3. feasibility thirdly, according to the unhrs bodies, a concrete accommodation is subject to a feasibility examination, referring to the legal and material possibilities of implementing the requested accommodation (committee on the rights of persons with disabilities 2018a: para. 26; human rights council 2016: para. 38). the ohchr has addressed legal feasibility by pointing out that rapd measure implementation cannot involve a violation of the law. for material feasibility, it has asserted that the requested accommodation under rapd must exist and be available (human rights council 2016: paras. 51–52); and concerning the availability of the accommodation and recalling the standard of conduct that the involved parties must satisfy, the ohchr has indicated that ‘those in charge should make good faith efforts to provide an accommodation’ (human rights council 2016: para. 52). 3.2.4. relevance fourthly, the application of a rapd measure is subject to an examination of relevance, concerning the necessity and adequacy of the requested adjustment to ensure the enjoyment or exercise of the rights of the person with a disability involved. it must be noted that the terms which unhrs bodies use to refer to this criterion are not uniform, sometimes referring to 'relevance' or 'effectiveness' of the requested accommodation (committee on the rights of persons with disabilities 2016b: para. 26; human rights council 2016: para. 53). according to the ohchr interpretation, the relevance criterion includes two sub-criteria: necessity, aimed at eliminating barriers, and adequacy, which considers the exercise of rights (human rights council 2016: para. 53). in line with this, it has argued that the relevance of an accommodation should not be based solely on medical information but on functionality criteria that address existing needs and obstacles (human rights council 2016: para. 46). in its adoptions of views on individual communications, the crpd committee has operationalized the relevance criterion in employment contexts, stating that the accommodation process should be oriented towards selecting adaptations that are effective for the person with a disability to perform the ‘key duties’ of the position they hold or apply for (e.g. committee on the rights of persons with disabilities 2019: para. 8.7, 2020: para. 9.7). 3.2.5. proportionality fifthly, the application of a rapd measure is subject to an examination of proportionality, which refers to ensuring that the implementation of the requested accommodation does not impose an undue or disproportionate burden on the rapd request recipient. this criterion is probably one of the most controversial issues in rapd application, specifically regarding which factors, variables, or indicators determine whether an rapd measure satisfies the proportionality criterion. on this point, the practice of the ohchr and the crpd committee is quite similar, although not identical. without claiming to be exhaustive, the crpd committee has identified the following http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 14 factors to determine whether a particular rapd imposes an undue or disproportionate burden: financial costs, available resources (including access to public subsidies), the size of the entity receiving the request, the effects of implementing the adjustment for the recipient entity and for third parties, and reasonable health and safety factors (2018a: para. 26). according to the ohchr, the proportionality criterion operates based on a case-bycase analysis, involving a balancing exercise between the means employed for rapd implementation and the objective it pursues (human rights council 2016: para. 55). in terms of the means employed, the ohchr has considered various factors provided for national jurisdictions, such as the time required to implement the accommodation, the cost of its implementation (financial and economic), the duration or frequency of its use, and the effects or benefits derived from applying the adjustment (both for the parties involved and for third parties) (human rights council 2016: paras. 55–58). among the aforementioned factors, the ohchr has particularly focused on the implementation costs, differentiating between financial viability and economic viability of the rapd request. financial viability relates to the liquidity situation of the party required to handle implementating the requested adjustment, considering the possibility of external financial support, such as ‘loans, subsidies and grants from either public or private sources’ (human rights council 2016: para. 59). economic viability entails a broader analysis than financial viability, involving an examination of the overall assets of the party required, i.e., the set of goods constituting their assets (human rights council 2016: para. 60). in another aspect related to the criterion of proportionality, the crpd committee has been clear in stating that the burden of proving that the requested adjustment imposes a disproportionate or undue burden lies with the recipient relying on such defense, and not with the requesting party (committee on the rights of persons with disabilities 2018a: para. 26). this position has been ratified and further specified in its adoption of views on individual communications, stating that to satisfy its burden of proof, the rapd request recipient must present arguments, data, and analysis demonstrating the disproportionality of the requested accommodation (e.g. committee on the rights of persons with disabilities 2016a: para. 8.5, 2018b: para. 7.5). therefore, rapd request refusal without a detailed proportionality analysis of the concrete accommodation constitutes discrimination on the basis of disability (e.g. committee on the rights of persons with disabilities 2016a: para. 8.5, 2018b: para. 7.5). 3.2.6. objective justification and communication of refusal to provide reasonable accommodations finally, unhrs bodies have stated that the refusal to provide rapd, along with the reasons justifying it, must be communicated promptly to the person with a disability involved (committee on the rights of persons with disabilities 2018a: para. 27; human rights council 2016: para. 47). the crpd committee has emphasized that the justification for denying a reasonable accommodation must be based on objective criteria (2018a: para. 27). the ohchr, on the other hand, has specified three distinct reasons for http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 15 justifiably rejecting a rapd request: i) the adjustment is not feasible; ii) the adjustment is not relevant; or iii) the adjustment is not proportionate. demonstrating any of these three reasons is sufficient to justify the refusal to provide rapd and avoid committing discrimination on the basis of disability (human rights council 2016: paras. 47–48). 4. critical analysis given that the two previous sections have a primarily descriptive focus, this section will provide a critical analysis of their contents. a synthesis exercise will be conducted to begin, including the measures that states should take regarding national rapd implementation according to the unhrs. due to the relevance of their guidelines for national rapd implementation, certain problems and challenges in dealing with unhrs bodies’ practice will subsequently be addressed. 4.1. legal recognition is not enough: the demanding national implementation of reasonable accommodations in accordance with the unhrs the beginning of this article presented a question about what measures the states parties of the crpd should adopt for rapd implementation in their respective national jurisdictions. sections 2 and 3 indicate that certain answers to this question can be derived from the text of the crpd itself, but they are mainly found in the practice of the unhrs bodies under revision. starting with the answers that can be derived from the text of the crpd, the definitions in article 2 make it clear that national jurisdictions must: i) identify and establish that denial of rapd constitutes discrimination on the basis of disability; ii) establish a broad scope of material application for rapd; and iii) as a result, establish a broad scope of personal application regarding affected subjects. however, the crpd text leaves unanswered, or does not fully resolve, several aspects that seem to be critical for national rapd implementation. in this regard, although efforts have been made from academia to address these topics, the text of the crpd does not resolve the following topics: i) the extent of the personal scope of rapd (who exactly is entitled to request rapd?); ii) the criteria to determine when rapd ought to be provided in a specific case; iii) the question of what specific and concrete measures states parties must adopt in accordance with the obligation enshrined in article 5.3 crpd. given this scenario, it could be argued that the gaps in the crpd regarding rapd are not a specific characteristic of this treaty alone. instead, this appears to be a common feature of human rights provisions in general, and it would be naïve to expect an international legal instrument to provide precise answers and solutions for all possible scenarios (wheatley 2013: 85). the indeterminate nature of international human rights instruments is a result of arduous negotiations among numerous and heterogeneous state and non-state delegations during the drafting process. when pursuing necessary consensus, the natural outcome is the formulation of highly indeterminate provisions granting certain discretionary margins of action to different states for their implementation at the national level. http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 16 on the other hand, the practice of the unhrs bodies under review provides a wide range of responses regarding rapd implementation in national jurisdictions. these bodies’ practice includes guidelines on the kind of measures that should be adopted to ensure the provision of rapd at the domestic level, along with guidelines for rapd application in particular cases. as a summary, the following table (table 1) presents the main measures that states parties should adopt regarding national rapd implementation, considering the provisions of the crpd and the practice developed by the unhrs bodies: table 1. measures for national rapd implementation measure classification source m1. to establish that rapd denial constitutes discrimination on the basis of disability legal qualification on denial of rapd crpd m2. to establish a broad material scope of the duty to provide rapd scope of the duty to provide rapd crpd m3. to establish a broad range of duty bearers regarding the duty to provide rapd scope of the duty to provide rapd crpd m4. to establish a broad personal scope of the duty to provide rapd, including persons with disabilities and persons without disabilities associated with them scope of the duty to provide rapd special rapporteur m5. to clearly identify the duty bearer (encompassing both the public and the private sectors) and the context of application of the duty to provide rapd scope of the duty to provide rapd ohchr m6. to provide practical guidance regarding the application of rapd in concrete cases application of rapd in concrete cases crpd committee special rapporteur ohchr m7. to establish legal sanctions as a consequence of unjustified refusal to provide rapd legal consequences in case of non-compliance ohchr m8. to establish monitoring systems regarding compliance with the duty to provide rapd institutional design crpd committee ohchr m9. to establish mediation and conciliation systems, as alternatives to judicial remedies, for the reparation of victims of discrimination on the basis of disability institutional design crpd committee ohchr m10. to allocate specific resources and funding for rapd implementation resources and funding crpd committee special rapporteur ohchr m11. to actively collaborate with the nonstate sector to fulfill the duty to provide rapd collaboration with the nonstate sector crpd committee ohchr *source: author http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 17 table t1 clearly shows that, according to the crpd and the practice of the unhrs bodies, nationwide rapd implementation involves several measures and encompasses different areas of action. the national implementation of rapd, as per the crpd and the unhrs bodies, requires much more than the mere normative incorporation of the duty to provide rapd in domestic legislation. the measures listed in the table also refer to: i) the scope to be given to the duty to provide rapd (m2, m3, m4, m5); ii) the legal qualification of rapd denial (m1); iii) the legal consequences arising from non-compliance with the duty to provide rapd (m7); iv) the development of a specific institutional design associated with practical rapd application (m8, m9); vi) the regulation of guidelines and practical orientations to guide rapd application in particular cases (m6); vii) the provision of resources and funding specifically intended for rapd (m10); and viii) state cooperation with the non-state sector (m11). table t1 also clearly shows that the main source of guidelines on the measures to be adopted for national rapd implementation come from unhrs bodies’ practice. consequently, to have a more accurate and precise understanding of the types of measures required to ensure the provision of rapd in their respective jurisdictions, states parties must necessarily pay attention to and be aware of the practice developed by unhrs bodies on this matter. the need to consider the practice of unhrs bodies is not free from complications, though, and involves significant challenges. 4.2. diversity, awareness and authority: the challenges of addressing unhrs bodies’ practice the need to consider unhrs bodies’ practice to obtain guidance on rapd implementation in national jurisdictions poses at least three significant challenges. the first of these challenges can be characterized as the problem of diversity of voices within the same forum. within the unhrs, there are several bodies (treaty bodies, special procedures, and other entities) that have incorporated the international legal treatment of the duty to provide rapd into their practice. this diversity of voices regarding the same subject opens the possibility of expressing contradictory or divergent views. if unhrs bodies hold divergent interpretations regarding rapd, what interpretation should be preferred and based on what kind of criteria? fortunately, in the case of the duty to provide rapd, unhrs bodies’ practice does not present a problem of divergence. instead, the practices developed by these different bodies complement each other. although the practice developed by the crpd committee, special rapporteur, and ohchr regarding rapd is not expressed in identical terms, they are not mutually exclusive either. this finding is consistent with prior literature, which has asserted the complementarity of the work of united nations treaty bodies with the work of the special procedures from the human rights council regarding human rights protection issues (rodley 2012: 355). indeed, while the crpd committee has been explicitly concerned with deepening the understanding and application of the duty to provide rapd, the special rapporteur and the ohchr in particular have dedicated special attention to providing guidance on specific actions and measures to be taken for rapd implementation at the national level. even in those aspects where different unhrs bodies’ practice overlaps, http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 18 there are no major divergences or incompatibilities. where one body provides generic interpretations, the other provides more specific interpretations. this is particularly evident in the rapd application guidelines in particular cases, where the general guidelines of the crpd committee have been complemented by the more specific guidelines provided by ohchr. the second challenge, somewhat related to the diversity of voices within the unhrs, involves the lack of awareness among relevant stakeholders. to what extent are the different stakeholders (governments, civil society organizations, disability rights advocates, and others) aware of the practice developed by the crpd committee, special rapporteur, and ohchr regarding rapd? it has been stated that one of the major problems of the un treaty body system in this issue, to which the crpd committee belongs, lies in the lack of widespread knowledge beyond the circle of human rights professionals about these bodies’ existence and work (bernaz 2013: 719; ulfstein 2018: 294). from this perspective, national rapd implementation in line with unhrs standards requires that relevant stakeholders, such as legislative bodies, policymakers, and judicial bodies, be aware of the existence of these various international human rights bodies and become familiar with the practice they have developed in this matter. the fact that the practice developed by unhrs bodies provides useful guidance for national rapd implementation highlights a third significant challenge: what is the value of the products resulting from these bodies’ interpretative activity? providing a precise and comprehensive account on this issue lies well beyond the scope of this article. therefore, in a more modest approach, by bringing this issue to the table, the aim is to highlight certain elements that are useful for analyzing the interpretative work carried out by the unhrs bodies. as a starting point, it should be noted that the authority of human rights monitoring bodies and expert mechanisms is a highly controversial issue in national practices, international contexts, and academic literature (see e.g. mechlem 2009; çalı 2013; jiménez 2019; cardona 2019; azaria 2020). nevertheless, it seems relatively undisputed that the products of these entities’ interpretative work are not legally binding on states or other international bodies (o’flaherty 2006: 33; keller and ulfstein 2012: 422–423; van alebeek and nollkaemper 2012: 402–413; rodley 2013: 639; bernaz 2013: 720–721; connors 2019: 387; escobar 2019: 246). states would thus not be legally required to follow or act in accordance with the interpretations provided by these bodies. however, this does not imply that these products have no value or effect in shaping or influencing treaty provisions’ national implementation. for instance, in the case of treaty bodies such as the crpd committee, it has been suggested that the level of acceptability or resistance to their interpretative work is directly related to their forms of exercise. specifically, it has been argued that resistance to such interpretations is less likely when they are perceived as being closely aligned with the literal text of the treaty being interpreted. conversely, in the case of ‘more creative’ interpretations, the probability of resistance increases as they are perceived as imposing obligations, limitations, or restrictions not consented to by the states parties to the treaty in question (schlütter 2012: 311; wheatley 2013: 94). it is worth noting that given the limited normative content of the crpd regarding rapd, this thesis http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 19 would have a significant impact on acceptance or resistance to the practice developed by the unhrs bodies. one potential solution to this problem could involve recognizing that the guidelines provided by unhrs bodies for national rapd implementation find their normative basis in article 5.3 crpd, which establishes states parties’ obligation to adopt ‘all appropriate steps to ensure that reasonable accommodation is provided’. recognizing the non-binding status of interpretations by treaty monitoring bodies and special procedures, some authors have indicated that these interpretations’ effectiveness or impact depends on extralegal factors. these factors include technical quality, analyticalconceptual rigor, and argumentative coherence of the interpretation (mechlem 2009: 909; van alebeek and nollkaemper 2012: 413; borlini and crema 2019: 31; azaria 2020: 45– 46). in fact, it has been stated that ‘the authoritativeness of international expert bodies’ pronouncements lies in the sound argumentation of their reasoning, their methodological rigor and persuasiveness of the views expressed’ (borlini and crema 2019: 31). therefore, when it comes to the authority of interpretations by unhrs bodies, it appears that an interpretation that meets these factors to a greater extent is more likely to be followed than one that meets them to a lesser extent. with these points in mind, to what extent does the practice developed by the unhrs bodies regarding rapd meet the standards of technical quality, analytical rigor, and argumentative coherence mentioned in scholarship? although answering this question accurately would require a more comprehensive and exhaustive review and analysis of documents, the inputs from this article allow us to identify certain examples where the unhrs bodies’ practice regarding rapd has some weaknesses concerning the consistency and soundness of their interpretations. a first example concerns the evaluation of the relevance and proportionality criteria in the application of rapd concrete cases. in its general comment no. 6, the crpd committee has listed a series of factors to assess whether a specific rapd satisfies the proportionality criterion, such as financial costs, resources available, the size of the accommodating party, the effect of the modification on the institution or business, third-party benefits, negative impacts on other people, and reasonable health and safety requirements (committee on the rights of persons with disabilities 2018a: para. 26). the same factors have also been enlisted in the adoption of views on individual communications, but with reference to the relevance criterion (e.g. committee on the rights of persons with disabilities 2019: para. 8.6, 2020: para. 9.6). thus, the same unhrs body, exercising different functions, has framed the same evaluation factors within different criteria. this inconsistency is striking since the practice of the crpd committee implies that each criterion focuses on different parties of the accommodation process. the relevance criterion is oriented towards people with disabilities, seeking to remove the concrete barrier that hinders the equal enjoyment of rights. the proportionality criterion is oriented to the duty bearer, excluding those accommodations that would impose an undue or disproportionate burden on this party (see committee on the rights of persons with disabilities 2018a: para. 25). a second example is the reference to ‘objective criteria’ justifying the refusal to provide rapd. according to the crpd committee, the justification for not providing http://doi.org/10.17561/tahrj.v21.8258 ‘so…what exactly is to be done?’: the national implementation of reasonable accommodations for persons with disabilities according to the united nations human rights system the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 20 a requested rapd must be based on objective criteria. however, the committee has not explicitly or extensively clarified what those objective criteria are. this is relevant because determining whether a request for rapd was legitimately rejected or not results in determining whether or not an act of discrimination based on disability occurred. in this sense, the reference to 'objective criteria' made by the crpd committee can be interpreted in two ways, both of which are present in the practice developed by the ohchr. the first interpretation would be to understand that the reference to objective criteria refers to general guidelines for rapd application in specific cases, especially the variables of feasibility, relevance, and proportionality. thus, justifying the denial of an rapd request based on objective criteria would mean rejecting the request because it involves a modification or adaptation that is not feasible, relevant, or proportionate. the second interpretation, not necessarily incompatible with the first, would be to understand that the reference to objective criteria refers to the exclusion of vague, ambiguous, or potentially discriminatory factors against persons with disabilities from the evaluation process. both interpretations seem plausible, but the practice of the crpd committee has not clarified the issue. a third example, this time from the practice developed by the ohchr, concerns the regulation of the duty to provide rapd in national legislation. the ohchr has recommended that states incorporating rapd into national legislation should enshrine this duty with an open-ended criterion ‘so as not to result in exclusion from protection’(human rights council 2009: para. 39). however, the ohchr has not clarified what those exclusions of protection would be that could be avoided by incorporating rapd with an open-ended criterion. does it refer to the regulation of the personal scope of rapd, the material scope, the criteria for determining when an accommodation ought to be provided, all these aspects, or some additional ones? ohchr praxis does not provide answers to this question. even more so, it is worth noting that the ohchr itself has provided guidelines that, at first glance, seem to be contrary to a regulation of rapd with an openended criterion. for example, the ohchr has also argued that domestic state legislation must clearly identify the obligated party to provide rapd and the specific context of application of these measures. this creates tension between, on the one hand, a regulation of rapd expressed in broad terms (or with an 'open-ended criterion'), and on the other hand, a regulation of rapd expressed in more specific terms. 5. conclusions this article has aimed to identify, systematize, and critically analyze the measures that, according to crpd provisions and different unhrs bodies, must be adopted by states to implement rapd in their respective national jurisdictions. examining crpd provisions reveals that, even though this treaty contains several articles related to rapd, there are various aspects concerning the understanding, application, and implementation of these measures that the crpd provisions does not resolve. the crpd does not specify which measures or types of measures states parties should adopt to ensure rapd fulfillment in their respective national jurisdictions. in this scenario, different unhrs bodies have sought to provide guidelines and orientations to http://doi.org/10.17561/tahrj.v21.8258 eduardo marchant vivanco the age of human rights journal, 22 (june 2024), e8258 issn: 2340-9592 doi: 10.17561/tahrj.v22.8258 21 states regarding rapd understanding and application in specific cases and have indicated concrete measures for rapd implementation in national contexts. considering cprd provisions and the practice developed by unhrs practice, the main measures related to rapd implementation in national jurisdictions have been synthesized. this synthesis has led to two main findings. firstly, national rapd implementation requires the adoption of diverse measures, which go beyond the mere normative incorporation of the duty to provide rapd in national legislation. according to the crpd and the practice of the unhrs bodies, nationwide rapd implementation also involves measures that address: the legal qualification of rapd denial; the scope of the duty to provide rapd and the legal consequences of non-compliance; rapd application in specific cases; institutional design issues; resources and financing provision; and cooperation with the non-state sector. secondly, it has been confirmed that the guidelines for national rapd implementation come mainly from the practice developed by the unhrs bodies. the significance of the practice developed by these bodies highlights the need to address certain challenges. on the one hand, the diversity of voices within the same forum does not present a relevant obstacle concerning rapd. the practices developed by the crpd committee, the un special rapporteur, and the ohchr are complementary; although they are not expressed in identical terms, they are not mutually exclusive. national rapd implementation also requires that crpd states parties, as relevant interlocutors of the unhrs bodies, are aware of and knowledgeable about the practice that these bodies have developed regarding rapd. finally, the non-binding nature of the interpretations provided by the unhrs bodies suggests examining their authority based on extranormative factors. from this perspective, certain examples have been identified that show inconsistencies and argumentative flaws in the practice of the supdh entities, which could negatively impact their degree of authority. funding this research was supported by the anid millennium science initiative program (ncs2022_039), anid millennium science initiative program (ics2019_024), and anid becas/doctorado nacional 21191693. references alebeek, rosanne van and andré nollkaemper. 2012. “the legal status of 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university press. 84–116. <https://doi.org/10.1017/cbo9781139540827.004>. received: 1st september 2023 accepted: 10th november 2023 http://doi.org/10.17561/tahrj.v21.8258 https://doi.org/10.1017/cbo9781139047593.007 https://doi.org/10.1017/9781108529570.010 https://data.europa.eu/doi/10.2838/208695 https://data.europa.eu/doi/10.2838/208695 https://doi.org/10.1017/cbo9781139540827.004 ‘sowhat exactly is to be done?’: the national implementation of reasonable accommodations for p abstract 1. the united nations convention on the rights of persons with disabilities: a new dawn for reaso 2. too many articles, too little said: the regulation of reasonable accommodations in the crpd 2.1. definition of reasonable accommodation: article 2 crpd 2.2. states parties’ duty to take measures ensuring reasonable accommodations: article 5 crpd 2.3. reasonable accommodations in specific contexts: articles 14, 24 and 27 crpd 2.4. denial of reasonable accommodation as discrimination on the basis of disability 3. from ‘all appropriate steps’ to ‘these steps’: implementing reasonable accommodations accordin 3.1. measures to ensure that reasonable accommodation is provided 3.1.1. general guidelines 3.1.2. guidelines for specific legislation areas 3.2. guidelines for the application of reasonable accommodations in particular cases 3.2.1. requesting reasonable accommodations 3.2.2. dialogue 3.2.3. feasibility 3.2.4. relevance 3.2.5. proportionality 3.2.6. objective justification and communication of refusal to provide reasonable accommodations 4. critical analysis 4.1. legal recognition is not enough: the demanding national implementation of reasonable accommo 4.2. diversity, awareness and authority: the challenges of addressing unhrs bodies’ practice 5. conclusions funding references the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 1 the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law geofredo angulo lópez1 abstract: this article discusses the problem of torture in mexico and its impact on the legitimacy of the state and the protection of human rights. despite the normative advances in the configuration of the notion of torture, there are problems of effectiveness in the mechanisms with which the state operates to comply with its obligation of due diligence in the prevention, investigation, registration and prosecution of torture cases. the author emphasizes that torture is a symptom of the weakness of the rule of law, which produces a social delegitimization due to the disappointment of society’s expectations in legal institutions and in the procedural guarantees of criminal justice systems. furthermore, torture is related to a culture of impunity, discrimination and inequality, which demands effective and fair policies to address this problem. therefore, it is necessary to advance in the justiciability, prevention, investigation, eradication, protection, reparation and punishment of acts of torture. keywords: torture, cruel, inhuman and degrading treatment, rule of law, human rights, legitimation, effectiveness. summary: 1. introduction. 2. content and scope of the concept of torture. 2.1. the scope of the principle of equal appreciation of differences in the concept of torture. 3. the prohibition of torture as a human right: aspects of effectiveness and social legitimacy. 4. current theories on the ethical-rational justification of torture: main positions for and against. 5. conclusion. 1. introduction torture constitutes one of the most serious forms of human rights violations, it is an inhumane practice, it is a serious crime punishable under any modern legal system; it is an act of violence, coercion, and abuse of power that violates the rule of law and transgresses personal integrity, understood as the human right not to be a victim of any physical pain or suffering (o’donnell, 2004). in its article 22 the mexican constitution establishes that the personal integrity of every human being must be respected; consequently, both torture and the application of punishments that cause physical harm or psychological anguish to persons are prohibited (const., 2022, art.22). in this sense, the right to personal integrity has three elements: the prohibition to receive bodily injury, psychological damage and moral 1 doctor in fundamental rights cum laude by the university of jaén, spain, and master in human rights, rule of law and democracy in iberoamerica by the university of alcalá de henares, madrid, spain. law degree from the universidad autónoma de yucatán, master in constitutional procedural law from the universidad modelo de mérida, yucatán méxico. professor at the law school of the universidad autónoma de yucatán. researcher level 1 of the national system of researchers of the national council of humanities, sciences and technologies (geofredo.angulo@correo.uady.mx). the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 2 damage.2 however, the practice of torture not only violates dignity and personal integrity, but is “the very negation of the current rule of law and democracy” (ribotta, 2012, p.158), at least if we recognize that the fundamental principles of a constitutional and democratic rule of law are not only the rule of law, legality, separation of powers, but are also the respect and guarantee of human rights.3 (gozaíni, 1995), as well as in the principles of any criminal justice system such as proportionality, the presumption of innocence, reparation of damages, the right to a fair trial; therefore, the fight against torture is an ethical and legal imperative, and an inescapable commitment of democratic societies and their legal institutions. however, in spite of its prohibition as a universal human right4 recognized by various international treaties, it continues to be used today by state agents, police forces, the military, and armed groups around the world5 (ferrajoli, 2013). in mexico, since that year, there has been an upturn and a significant expansion in the application of torture throughout the national territory. this trend has reached a point where it can be qualified as a “generalized”6 practice, according to different reports and analyses. it is crucial to recognize the seriousness of this situation, as well as the urgent need to address this serious problem from legal, humanitarian and ethical perspectives. (guevara, 2021, 104). 2 the inter-american convention on human rights (iachr) has identified certain acts that affect violations of personal integrity, which are demonstrated indirectly, by assuming such conduct as: locking someone in the trunk of a car, (case of castillo paez v. peru, 1997, series c, no. 34, para. 66); that a person remains naked covered only with a sheet in front of heavily armed guards, case of miguel castro castro castro prison vs. peru (2006, series c, no. 160, para. 306m); telling the victim that he was kidnapped to be killed, case of the “street children”, (villagrán morales et al.), vs. guatemala (1999, series c, no. 63, para. 163,), (ramírez and pallares, 2011). in the “report on terrorism and human rights”, the iachr (2002), has established as cruel, inhuman and degrading treatment: “the imposition of restricted food causing malnutrition, the application of electric shocks to a person, submerging a person’s head in water to the point of suffocation, standing on or walking on people, beatings, cutting with pieces of glass, placing a hood over a person’s head and burning it with lit cigarettes, rape, mock burials and executions, beatings and deprivation of food and water, threats of behavior that would constitute inhuman treatment, threats of removal of body parts, exposure of other victims to torture or threats of death” (iachr, 2002, para. 161). 3 gozaíni (1995) maintains that “today, the guarantee of human rights has become a kind of supreme legitimizing instance of the exercise of power, to the point that it is practically impossible to find any system of government that, in one way or another, is not concerned with offering a public image of full compliance with human rights” (p. 24). 4 the universal declaration of human rights in its article 5 states: “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (un general assembly, 1948, art. 5). 5 the practice of torture and violations of liberty and personal integrity has been evident to the whole world. think of the prisoners suspected of terrorism in the cages of guantanamo, the inhuman, cruel and degrading treatment in abu ghraib prison during the occupation of iraq by the united states, and other detention centers such as bagram in afghanistan (ferrajoli, 2013). mexico does not escape this reality, the torture documented by various international organizations that point out that torture and ill-treatment have a generalized nature, which is used mainly for criminal investigation purposes, as a means of intimidation and punishment within the justice system, detention and reintegration centers, in arbitrary detentions, as sexual violence such as that which occurred in atenco against women protesters, among others. 6 report on the mission to mexico (april 21 to may 2, 2014) of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, juan e. méndez of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, juan e. méndez or cruel, inhuman or degrading treatment or punishment, juan e. méndez, (a/hrc/28/68/add.3), paragraph76. geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 3 certainly, torture is one of the criminal acts of greatest concern worldwide, and constitutes one of the most serious forms of violation of human rights that is not justified under any circumstances, it is a practice that destroys the most precious possession of a person. its human integrity-(alonso-niño, 2014); it affects the essential core of the person; torture is a process that tends to annul the personality, identity, and deepest intimacy of the human being, it is an act that fractures, that breaks all affective and trusting relationship with the outside world (pino, 2017), a consummated form of “total annihilation of the existence” (améry, 2001, p. 91). therefore, anyone who practices it commits a crime against humanity (alegre, 2014). the prohibition of torture is certain and absolute in international law and domestic law (la torre, 2020), it cannot be given under any factual assumption the rational necessity of acts of torture and its proportional adequacy to the fact, i.e., acts of torture and cruel, inhuman or degrading treatment cannot be legitimized as the use of force by the authorities in detention or subjugation is validated. in fact, the prohibition of torture is equated with the prohibition against slavery or genocide, and therefore has a prima facie absolute7 meaning, so relevant that, even those states that are not party to international treaties that explicitly prohibit torture, are prohibited from applying it under factual assumptions such as: national security, state of emergency, war, public emergency or threats of terrorism against the population (apt, 2008), “internal commotion or conflict, suspension of constitutional guarantees, internal political instability or other emergencies or public calamities; neither the dangerousness of the detainee or prisoner, nor the insecurity of the prison or penitentiary establishment can justify torture” (iachr, 1985, art. 5). article 2.2 of the un convention against torture (1985) expressly states that no exceptional circumstances whatsoever, such as a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture or any other act that violates the dignity and integrity of the person. in this context, the second paragraph of the 29th article of the mexican constitution, regarding the restriction or suspension of human rights and their guarantees, establishes that under no circumstances may “the prohibition of slavery and servitude; the prohibition of forced disappearance and torture, nor the judicial guarantees indispensable for the protection of such rights” be suspended (const., 2022, art. 29). however, the prohibition of torture and ill-treatment is not only an absolute norm, but constitutes a notable example of a norm of international law that has attained an imperative character of jus cogens (drnas de clément, 2002); a peremptory norm of international law that is accepted and recognized as a norm from which no state may derogate or withdraw by means of an agreement or reservation, at the time of being bound by a human rights treaty or convention (nash, 2009). the inter-american court of human rights (hereinafter iachr), has stated that: the absolute prohibition of torture, both physical and psychological, belongs today to the domain of international jus cogens. this prohibition 7 we speak of prima facie, from a human rights context, to refer to the idea of the importance, strength, of the strong moral requirement that accompanies the absolute prohibition of torture, and that makes it a superior principle that governs the actions of states, and that consequently cannot be displaced by any factual assumption, circumstance or moral, legal or political consideration. the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 4 subsists even in the most difficult circumstances, such as war, threat of war, fight against terrorism and any other crimes, state of siege or emergency, internal commotion or conflict, suspension of constitutional guarantees, internal political instability or other emergencies or public calamities (case of bueno alves v. argentina, 2007, para. 76). therefore, they have a binding force supreme to any other rule of international law and are intended to protect fundamental values for humanity, which are “imposed over the consent of the states that in international law conditions the validity of the rules” (cebada, 2002, p. 4). 2. content and scope of the concept of torture the concept of torture has been evolving, because unlike the traditional concept, in which the constituent elements and decisive factual assumptions of torture focused mainly on causing serious physical or mental harm inflicted intentionally, and with the sole purpose of obtaining information or a confession, punishing or intimidating (scjn, 2015); the concept of torture in the current rule of law, more specifically in the general law to prevent, investigate and punish torture, and other cruel, inhuman or degrading treatment or punishment (2017) (hereinafter lgpist), we can see that in article 24 the concept emphasizes the normative development of the inter-american convention to prevent and punish torture, and the jurisprudence of the iachr8, by incorporating into the purpose or aim of torture personal punishment, as a means of coercion, as a preventive measure, or for reasons based on discrimination or any method tending to diminish or annul the personality of the victim or his physical or psychological capacity, even if it does not cause him pain or suffering9, as a form of intimidation, and as a means of official social control10. 8 cases: case of bueno alves v. argentina (2007, p. 79). case of inés fernández ortega et al. v. mexico (2010, p. 93). case of valentina rosendo cantú et al. v. mexico (2010, p. 83). case of women victims of sexual torture in atenco v. mexico (2018, pp. 58-80). 9 these new methods tend to cause, even temporarily, the disintegration of the victim’s personality, the destruction of his mental equilibrium and the subjugation of the free determination of his will. inter-american jurisprudence has indicated that certain acts amount to cruel, inhuman or degrading treatment. these conducts are particularly practiced in the context of detention, where those deprived of their liberty are subjected to prolonged interrogations under the effects of sodium pentothal, known as “truth serum” (iachr, 2002, paragraph 161). the use of this drug in interrogations must be provided under strict control, as it produces serious side effects and even death in the case of overdose (case herzog et al. v. brazil, 2018). 10 torture, cruel, inhuman and degrading treatment are used as a weapon of control of public or social order, when such acts transcend the personal sphere of the victim to impact society through these violations with the objective of not only harming the victim directly, but also sending a message of power, intimidation and repression about the scope, character and strategies of official social control (nagan and atkins, 2001). the iachr in the case of atenco vs. mexico (2018), pointed out that sexual violence is used as a tactic or strategy of control, domination or imposition of power, since sexual violence was applied in public, in the presence of several witnesses, with the purpose or intention to intimidate, to give a message of domination, forcing the other detainees to listen or even see what was done to the women’s bodies; thus using them as tools to transmit a message of repression, and in this way disapprove the means of protest used by the demonstrators. geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 5 likewise, torture shall be understood to mean other methods of affecting personal integrity, medical or scientific procedures11 on a person without his consent or without the consent of the person who could legally grant it. in article 25 of the lgpist (2017), individuals who with any degree of authorship or participation and with the authorization, support or acquiescence of a public servant commit any act of torture are indicated as active subjects. it is important to note in this regard that the prohibition of cruel, inhuman or degrading ill-treatment not only requires public servants a negative obligation not to intervene in such actions, but state agents also have a positive obligation to protect persons “under their custody or control” (un, 1999, art.7)12 against the acts of a private individual (un, 2004). on the other hand, it establishes the imprescriptibility of the act of torture and reaffirms the inadmissibility or nullity of any evidence obtained directly through acts of torture, prohibits the granting of pardons or amnesties and the recognition of immunities to persons prosecuted or convicted for acts of torture (un, 2019b). it also standardizes criminal offenses related to torture, such as cruel, inhuman or degrading treatment, which are acts that cause physical pain and severe mental anguish, not necessarily intended to obtain information or confessions, but that are regularly carried out with the purpose of punishing, annulling or degrading people, causing them severe physical and psychological suffering or damage that constitute a violation against personal integrity and human dignity. 2.1. the scope of the principle of equal appreciation of differences in the concept of torture in the lgpist (2017), is particularly relevant the increase of penalties by up to one half when the victim is a child or adolescent; a pregnant woman13; a person with a disability; an elderly person; a person subjected to any form of sexual violence; thus paying attention to respect for cultural and social diversity, differences, discrimination and plurality of 11 an example of a medical procedure or scientific method that is considered to affect personal integrity is chemical castration, used as a punitive measure for the prevention of crimes of a sexual nature. from a human rights perspective it is considered a cruel, inhuman and degrading punishment. this medical procedure consists of the administration of drugs that reduce libido-diethylstilbestrol (des), medroxyprogesterone acetate or hormone-releasing hormone (lhrh)-and is applied with the aim of preventing rapists, pedophiles and other sexual offenders from reoffending. the countries where this practice is permitted for sexual crimes against minors are: indonesia, united states of america (california, florida, georgia, iowa, louisiana, montaba, oregon, texas and wisconsin), poland, russia, india, moldova, estonia, south korea, other countries that have approved forced chemical castration of pedophiles are ukraine, canada, denmark, germany, israel, kazakhstan, norway and sweden. on a voluntary basis, it has been provided for in the united kingdom, australia, spain, france, and argentina, as the only country in latin america (bbc, 2016). 12 article 7 of the rome statute states that: “torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; however, torture shall not include pain or suffering arising only from lawful sanctions or being the normal or incidental consequence thereof” (un, 1999). 13 the supreme court of justice of the nation, in the protocol of action for those who impart justice in matters involving acts constituting torture and ill-treatment, considered obstetric violence as a conduct that occurs in health institutions, which can become a form of ill-treatment (scjn 2014a). the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 6 perspectives such as gender, and the vulnerability, disadvantage and defenselessness of certain groups. this corresponds to a “differential and specialized approach”14 that we are just beginning to see to take on relevance in the public exercise, since for a long time the differences remained legally standardized in the actions of the state, concealing the inequality and discrimination that these differences entail; it is important to point out that this differential approach is based on the principle of equal legal valuation of differences proposed by ferrajoli, which has its raison d′être in the principle of equality based on the identical ownership and effectiveness of the guarantees of human rights, “independently by the fact, and on the contrary, precisely by the fact that their holders are different among themselves“ (ferrajoli, 2010, p. 8). in practice, this principle is fundamental in the fight against torture and other cruel, inhuman or degrading treatment, as it obliges the authorities to observe and assess the differences of population groups with specific differences and the degree of defenselessness, disadvantage or vulnerability in which they find themselves for reasons of age, gender, sexual preference or orientation, ethnicity, disability, among others; therefore, the authorities that apply the lgpist (2017), must guarantee access to the same rights and opportunities for all persons, regardless of their differences, establish appropriate measures and special guarantees of protection to these groups, which are exposed to a greater danger of violation of their human rights. in the context of torture, this principle is relevant, since all victims of torture must have access to justice, to a prompt and effective investigation, to punishment, to reparation of damages, regardless of their ethnic origin, social or economic status, sex, age, color, disability, sexual preference or any other ground or category suspected of discrimination. without doubt, acts of torture, cruel, inhuman and degrading treatment especially affect groups in a situation of disadvantage or vulnerability, and therefore, more likely to suffer harm, such as: women, children and adolescents, the elderly, people with disabilities, migrants, indigenous people, etc., so that the risk and disadvantage is exacerbated and results in their vulnerability to be victims of violations of their human rights, cruel, inhuman and degrading treatment, therefore, the risk and disadvantage is aggravated and brings as a consequence that in a situation of vulnerability they are victims of violations to their human rights, cruel, inhuman and degrading treatment; which are visible, to mention some, to women, indigenous people and migrants. in the case of women; the complaints of sexual torture of which they are victims in detention, since “one in ten claims to have been a victim of rape during the detention process“ (un, 2019a), which include forced nudity, insults and verbal humiliation, 14 article 6 frac. iii. lgpist (2017). “differential and specialized approach: when applying the law, the authorities must take into account the existence of population groups with particular characteristics or with a greater situation of vulnerability due to their ethnic or national origin, language or dialect, religion, age, gender, sexual preference or orientation, gender identity, disability status, social, economic, historical and cultural status, as well as other differentiating circumstances and that require specialized attention for the same.” geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 7 groping of the breasts and genitals, introduction of objects into the genitals, repeated sexual assault and rape by several people, which in most of these cases have not been investigated or punished. in recent research, it has been observed that women are more likely to be victims of sexual violence by military forces and security corporations. this form of aggression is considered especially appropriate for women, due to a conception of femininity that supports it. (sánchez 2020). the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, juan e. méndez, in his report on his mission to mexico, points out that “most of these cases have not been investigated or punished, or have been classified as less serious conduct” (un, 2014, p. 8). on december 21, 2018, the iachr condemned the mexican state for the case of women victims of sexual torture in atenco v. mexico (2018), for physical and psychological violence and sexual torture exercised against 11 women during their detention and subsequent transfer to a social readaptation center on may 3 and 4, 2006. in this ruling, the mexican state recognized its international wrongfulness for the violations of the human rights of health protection, judicial guarantees, equality before the law, as well as for its failure to comply with its obligation to investigate acts of torture and violence against women. the iachr court determined in this case that, in general terms, rape, like torture, has the purpose of degrading, threatening, humiliating, discriminating, punishing, and controlling or annulling the personality of the victim. in addition, it establishes standards to qualify a rape as torture, by considering as basilar elements: the intentionality, the severity of the suffering, as well as the purpose of the act of torture, taking into consideration the context and the specific circumstances of each case (case of women victims of sexual torture in atenco v. mexico, 2018). in this context of torture, another group that deserves special attention are indigenous people. the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people has pointed out that in many countries they are victims of acts of violence and ill-treatment; the most vulnerable are indigenous women and children (iachr, 2004). in its report, it has pointed out that, in many countries, indigenous persons have disproportionate access to criminal justice, as they are denied due process rights and freedoms, and are generally victims of violence and mistreatment (iachr, 2004). some reports indicate that, in mexico, indigenous women are victims of mistreatment and harassment when incarcerated (iachr, 2004). the mexican national human rights commission (cndh) has documented several cases of torture against indigenous persons in different parts of the country. in its special report on torture in mexico, published in 2018, the cndh noted that indigenous persons are one of the populations most affected by this practice (cndh, 2018). the migration corridor between the united states of america and mexico is the one with the highest flow of migrants worldwide (iachr, 2015). the office of the special rapporteur on torture has indicated that mexico is one of the main countries of origin, destination, transit and return of migrants (un, 2014). therefore, there is a potential risk of violence and human rights violations suffered by migrants at all stages of the migration process. for example, the rapporteurship on the rights of migrants of the international commission on human rights (hereinafter iachr) to mexico (iachr 2015), has evidenced the situation of extreme vulnerability of which migrants and other persons in the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 8 the context of human mobility are victims; it has pointed out that the socioeconomic, political, environmental and citizen security situation in the region are the main factors of expulsion and attraction that lead to the situation of extreme vulnerability in which migrants in irregular situations in mexico find themselves. the cndh, has pointed out that the vulnerability of migrants is considered structural in nature, and how this has currently worsened due to the hardening of migration policies in the united states by seeing this phenomenon more as a national security situation than as a human rights situation of migrants (cndh, 2017). in one of its recent recommendations on the personal integrity of migrants, it has stated that a fundamental factor in the vulnerability of migrants is the lack of migratory documents or authorization from the state to transit or reside in its territory. consequently, this forces them to move through clandestine means and networks (cndh, 2022). the office of the special rapporteur on torture has expressed its concern about the violence, cruel, inhuman and degrading treatment with which state agents detain migrants (un, 2014). from this perspective, the most current and advanced normative concept of torture is configured, considering that the current criminal offense complies with the standards and commitments that the mexican state has assumed in the international treaties for the protection of human rights recognized in the convention against torture and other cruel, inhuman or degrading treatment or punishment, in the inter-american convention to prevent and punish torture, observations and recommendations of monitoring or oversight bodies such as the committee against torture of the united nations, as well as the rules of the inter-american convention against torture, inhuman or degrading treatment or punishment, the inter-american convention to prevent and punish torture, observations and recommendations of monitoring or oversight bodies such as the united nations committee against torture, as well as relevant rules of humanitarian law, refugee law and international criminal law; and also reflects the dynamics of power and social relations underlying the practice of torture by highlighting the importance of analyzing social and cultural structures influenced by factors such as: gender, conditions of vulnerability, reasons of discrimination, impunity, corruption, which allow and encourage acts of torture, as well as the legal and political responses to this problem in a society15. 3. the prohibition of torture as a human right: aspects of efficacy and social legitimacy despite these normative advances in terms of the configuration of the notion of torture, it is evident that in mexico there are two pressumptions in this matter: problems 15 in the case of montiel flores and cabrera garcía vs. mexico (2010), the iachr determined that violations of the right to physical and psychological integrity of persons is a type of violation that has various connotations of degree, ranging from torture to other types of abuse or cruel, inhuman or degrading treatment whose physical and psychological consequences vary in intensity according to endogenous and exogenous factors (duration of treatment, age, sex, health, context, vulnerability, among others) that must be demonstrated in each specific situation. geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 9 of effectiveness16 of human rights due to the minimal possibilities of practical realization of the mechanisms with which the state operates to comply with its absolute and nonderogable obligation of due diligence17 in the prevention, investigation, registration, and prosecution of cases of torture in all its forms and in all circumstances, as well as of its ineffectiveness in the protection and respect for the personal integrity of the victims who have suffered it (un, 2021). thus, the problem of the effectiveness of human rights and the right not to suffer torture produces a lack of social legitimacy, because of the way in which this practice affects social cohesion by undermining the trust and expectations of citizens in the institutions of the state and in the systems of administration and administration of justice due to the obstacles of the possibilities of realization, which consists of the effective political will to guarantee human rights and eradicate the practice of torture, having the resources to do so. for ferrajoli, a state that tortures a person not only loses any legitimacy, but also contradicts its raison d′être, placing itself on the same level as the perpetrators (ferrajoli, 1995). currently -ferrajoli arguesthere is a growing tendency to remove torture more and more from the public eye and from interest as an object of study and reflection of legal dogmatics (ferrajoli, 2008b). as a consequence, the state is not developing necessary, effective and fair state policies to address the problem of acts of torture, therefore, the state faces great dangers such as the emergence of positions that seek to relativize its absolute prohibition, as well as challenges that demand the ability to react on a large scale to address what arnaud calls the paradox of paradoxes, which has to do with the regulatory inability of law and the state to address the complexity of this social-legal phenomenon (arnaud, 1994). this leads us to the fact that the situation of torture is a problem that places the state in a position far from balance, between norms recognizing human rights and their real legal effectiveness in power relations and social dynamics in a context in which torture, cruel and inhuman ill-treatment are a widespread and systematic practice that is influenced by cultural factors, inequality, discrimination, impunity, lack of effective investigations, therefore, the legal-political responses with respect to this problem have been insufficient to develop solutions that address the structural causes, consequences and effects that impact on both of its aspects, as a violation of human rights and as a crime (scjn, 2014b), and in this sense can advance in the justiciability, prevention, investigation, eradication, protection, reparation, and punishment of acts of torture. 16 effectiveness in general will refer to the effects of the rules, i.e., with a view to the practical realization of the content expressed in them. in this sense, the law will be effective if and only if it succeeds in directing human behavior. the term effectiveness, on the other hand, translates into what is called real efficacy. effectiveness refers to the analysis of the consequences of the application of the norm in order to contrast them with the legislator’s intention, in this sense, the criticism of the effectiveness of the law is the object of legal science and the theory of law, while effectiveness would be the task of sociologists of law (gonzalez, 2003). 17 article 6 frac. ii lgpist (2017). “due diligence: which means that all prevention, investigation, criminal proceedings and reparation initiated for the crimes or violations of fundamental rights provided for in this law, must guarantee their development in an autonomous, independent, immediate, impartial, effective manner; and must be carried out with timeliness, thoroughness, respect for human rights and the highest level of professionalism”. the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 10 in this sense, torture and ill-treatment are a practice that originates in systems that are overstressed; consequently the state changes direction in the way it must comply with its commitments and obligations, thus originating instability, to the critical point that the order breaks down and bifurcates18; as a result, the legal-political system falls into crisis and conflict; and it is in this scenario that the practice of torture arises, in this context, the rule of law is threatened and legal institutions are no longer able to guarantee security and justice. from this point of view, torture becomes a symptom of weakness of the rule of law, which produces a social delegitimization due to the defrauding of society’s expectations in legal institutions and in the procedural guarantees of criminal justice systems. consequently, a progressive effect of the displacement of the state to spaces of illegality, impunity and legitimacy is created within the legal and moral framework of the absolute prohibition of the practice of torture, cruel, inhuman or degrading treatment (garcía, 2001). thus, from this perspective, torture is not an isolated or exceptional phenomenon, but is related to a culture of illegality, impunity and violence that affects society as a whole. the central problem in relation to the real effectiveness of human rights and the right not to be tortured, lies in the fact that we already find ourselves, as ferrajoli argues, before a realist fallacy that consists in the reduction of the right by the reality of the facts, and the determinist fallacy by the identification of what happens with what cannot fail to happen (ferrajoli, 2016), because despite its absolute prohibition without exception, cases of torture, cruel, inhuman and degrading treatment continue to occur. in mexico, torture is widespread; the crux of this element is the act carried out on a large scale, and the number of victims who are subjected to it. national and international organizations have pointed out that, in mexico, torture and cruel, inhuman and degrading mistreatment are present in several areas of action of state agents.in general, these cases occur in the criminal justice system, that is, as a result of acts derived from effective investigation and documentation, clarifying the facts, recognizing the responsibility of the actors, as well as establishing the necessary measures to prevent the repetition of these acts during detentions related to the criminal process. torture is frequently applied in the period between the time of arrest generally arbitrary and the time when the victims are brought before the public prosecutor’s office. victims are deprived of their liberty in illegal detention centers (iachr, 2015). this is reinforced by the national survey of population deprived of liberty (inegi, 2021) conducted on more than 64 thousand people incarcerated in 338 penitentiary centers, 18 becoming familiar with the new meaning of the word bifurcation is one of the fundamental insights of our time: [...] the basic meaning of bifurcation is a sudden change of direction in the way systems unfold.... bifurcations are triggered when complex systems are overstressed, beyond their threshold of stability. up to that point the behavior of the systems is relatively orderly, there is periodic oscillation, i.e. movement around or towards a certain state, or stability in one state or another. but beyond the critical point, order breaks down and the system falls into chaos. its behavior is no longer predictable, although it is not entirely random either. in most kinds of complex systems, chaos finally gives way to a new variety of order.... we ourselves and the ecological, social, economic and political structures in which we live constitute complex systems. these structures unfold and sooner or later their evolutionary paths bifurcate. our world is subject to sudden and surprising phase shifts.... (grün, 1997, p. 19). agents.in geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 11 in which it resulted that, two out of three, that is 64% reported some type of physical violence at the time of detention, such as electric shocks, strangulation and asphyxiation (cndh, 2019; inegi,2021). the un special rapporteur noted that there are several documented cases exposing that torture is used on a regular basis throughout the country by municipal, state and federal police officers, state and federal ministerial agents, and the armed forces. in the national census of state justice procurement (2017), inegi mentioned that, nationwide, a total of 3,569 victims of torture and other cruel, inhuman or degrading treatment or punishment were reported, identified in preliminary inquiries initiated and open investigation files. despite the fact that evidence obtained through acts of torture is prohibited in criminal proceedings, most defendants face obstacles and delays in proving that they were tortured, which restricts the effectiveness of the prohibition, which should be strict, complete, unconditional and imperative (2017)19. this situation is aggravated by the lack of a national registry20 that prevents knowing the actual cases of torture, in this sense, the lgpist (2017) requires the attorney general of the republic in its article 35 frac. iii “perform the registration of the fact in the national registry”, to follow up on the complaints of torture, however, it wasn’t until december 2022 that the attorney general’s office of the republic created the online registry publishing barely some preliminary data. on the other hand, there is a tendency for authorities not to investigate complaints of torture and to qualify acts of torture and cruel and inhuman ill-treatment as less serious crimes (un, 2014), such as: excessive use of force, injuries resulting from resistance in the subjugation of the detainee, abuse of authority, self-defense, state of necessity. in the most recent inquiry to inmates in prison in july of 2021, half of the incarcerated people expressed that, after being detained by police authorities and by the elements of the armed forces, they had used excessive use of force to subdue them (inegi, 2021). among the inmates who had confessed to committing a crime, 38% indicated doing it after being beaten and threatened. our preliminary conclusive consideration is that in the subject of torture, there is a multiplicity of problems, as well as a series of structural challenges that the law enforcement agencies and the prosecutors have to confront and that have not managed to overcome despite having control mechanisms and monitoring for the prevention, documentation, investigation, and punishment of torture and with a specialized national and international legislation that represents a significant challenge for the expected change in structures and methodologies for its action and investigation. 19 article 6 of the lgpist (2017), frac. vii dictates: “absolute prohibition: torture and cruel, inhuman or degrading treatment or punishment are strictly, completely, unconditionally and imperatively prohibited”. 20 article 83 of the lgpist (2017), dictates: “the national register is the research and statistical information tool that includes data on all cases in which cases of torture and other cruel, inhuman or degrading treatment or punishment are reported and investigated; including the number of victims of the same, which will be integrated by the databases of the institutions of procuration of justice, the national commission, the human rights protection organizations, the executive commission and the commissions of attention to victims; as well as the cases that are processed before international organizations for the protection of human rights”. the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 12 4. current theories on the ethical-rational justification of torture: main positions in favor and against it despite the absolute prohibition of torture, achieved in the legal systems of the states, torture is still in force, the novelty lies in the fact that in recent years in the accidental democracies is open debate about the constituent elements that make up the concept of torture contained in declarations, covenants, conventions and international treaties on human rights, with questions that have been invoked in certain areas on the legitimacy and legality of its use, trying to relativize the scope of its prohibition for the investigation and prosecution of certain crimes, and in extreme or exceptional circumstances that threaten peace and national security such as terrorism, organized crime, as well as to obtain information necessary to protect innocent people who are facing a clear, direct and high risk to life and personal integrity; and that can be caused by an identifiable and unique active subject that can materially avoid the real damage (bea, 2007). the main argument on which the new paradigm of the ethical-rational justification of torture is based on the following question: can torture be used in police interrogation procedures as a mechanism to save the lives of innocent people (cano, 2014)? can the use of torture by the state as a mechanism to obtain the truth in the face of terrorist threats be validated? the justification of this type of torture based on these approaches is called rescue torture, and is based on brugger’s theory of necessity, which consists of the defenseless becoming the aggressor and extreme aggression becoming a last but possible defense (la torre, 2020). this argument is reinforced by the reasoning of wolfgang lenzen, who, according to him, one thing is “genuine torture” that has as its object and purpose the degradation and suffering of a human being, and another thing is what he calls “torture in quotation marks”, which is on the contrary a conduct that has as its objective the saving of human lives (lenzen, 2006). professor la torre makes an interesting argument regarding the distinction between the deliberate infliction of suffering for the purpose of humiliation and degradation, and the infliction of suffering for the purpose of obtaining information crucial to preserving human lives.according to him, this distinction seems more appropriate to a philosophical reflection than to the legal argumentation of a trial lawyer. this notion is perceived essentially as a clever device, a technicality. for la torre, this approach is simply untenable. a close analysis of what is commonly referred to as “torture” with or without quotation marks recognizes that in order for it to fulfill its function and be effective, it must first meet the quality of being “real torture”. this is achieved through the application of specific acts and practices aimed at inflicting suffering, humiliation and degradation on those who are subjected to them. the information that is sometimes obtained through this coercion is acquired because it has undergone a process of extremely intense degradation, to such a degree that it becomes unbearable for the individual who has suffered it. however, it is essential to emphasize that this level of suffering and degradation was previously conceived as such by the person who applies it (la torre/lalatta, 2018). this approach sheds light on the question of whether “torture” itself can be justified on the basis of obtaining vital information. it involves recognizing that torture, to be geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 13 effective in this sense, must be inherently inhumane and brutal, highlighting the inherent contradiction between the supposedly “noble” objectives and the means employed. in this way, la torre’s analysis raises valuable questions about the ethics and legality surrounding the use of extreme practices, raising the importance of carefully weighing the implications of such actions in a broader context of human rights and justice. consequently, the focus quickly shifts from the actual context of the act of torture, in which there is a tortured victim and an aggressor who performs the act of torture, to a possible and prior circumstance in which the relationship between victim and aggressor is configured in such a way that the victim becomes the torturer and no longer the victim. therefore, torture then becomes a way of restoring and readjusting the right between the victim and the torturer, making it clear that the suffering of the victim takes second place and it is notably the tortured person. from this perspective, self-defense and state of necessity reach a prominent meaning to justify the legitimate use of torture or any cruel or inhuman treatment. at this point, what is unjust is that the alleged offender has kidnapped an innocent person and does not want to reveal where he is being held, so that the social expectation is also focused on the injustice that the state produces by not being able to protect the kidnapped person before, continues without protecting him, does not find him, and does not release him. consequently, the abuse of the act of kidnapping is transferred to the norm that prevents the police forces from acting by prohibiting acts of torture, illtreatment, inhuman and cruel treatment of the kidnapper (la torre, 2020). thus, what is called the theory of necessity is configured, which argues that torture is necessary in extreme situations, such as in cases of kidnapping, terrorism, to obtain information that can save the lives of innocent people. in fact, under these arguments it is intended to find a rational justification to apply in these cases the state of necessity that allows to preserve the unlawfulness of the act (act of torture) but that eliminates the responsibility that can be attributed to the active subject that in order to protect the life of the victims deprives the human rights of the other person (the kidnapper). in this case, the detained kidnapper who continues to hold the kidnapped person in captivity and denies him his freedom, the kidnapper is not defenseless and is also a criminal who has the obligation to stop his criminal plan and cooperate with the authorities. in this situation, the dignity of the aggressor conflicts with the dignity of the victim, who continues to be violated by the aggressor even after his arrest. in these cases, torture can be considered as a way to restore the victim’s dignity through the use of force to obtain information necessary to free the abductee (la torre, 2020). authors such as luhmann have proposed that, in the face of terrorist threats against the lives of innocent people by a time bomb, the principles and unrenounceable norms must be rejected, since, in a case like this, respect for fundamental rights and human dignity cannot be invoked, therefore, torture must be used as a mechanism to obtain information about the location of the device. according to luhmann, if a terrorist is captured before the bomb explodes, one could consider lifting the “unwaivable standard” of human dignity in this case to obtain information about the location of the bomb and how to defuse it. luhmann proposed the application of torture under the supervision of international judges and with televised observation of the scene from geneva or the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 14 luxembourg, and remote management through the use of telecommunication devices (quintero, 2016). it is imperative to consider that the justification for torture is intrinsically linked to the risks inherent in its application to an individual. in the context of the ticking bomb scenario (tbs) security-based torture debate, the question arises that, if there is strong evidence that a person possesses relevant information about the location of a bomb, how to deal with the possibility that this person is innocent or lacks sufficient information to indicate an imminent threat? in such circumstances, there is concern about torturing an individual under these conditions. this scenario also poses a conflict between two protected legal values: on the one hand, the physical and moral integrity of the individual subjected to torture; on the other hand, the lives of the people who could be affected by an explosion. the choice between these two fundamental legal goods becomes a moral and legal dilemma of utmost importance. which option should prevail in cases such as this? similarly, the theory of the lesser evil is addressed, which postulates that in situations where two evils are confronted, one should opt for the one that causes less harm, with the intention of achieving a general benefit. in this line of thought, the aim is to mitigate the harmful effects by choosing the option that causes the least harm in a critical situation. (arias, 2019, 406). ultimately, the discussion surrounding the justification of torture, the ethical dilemmas it poses, and the balancing of fundamental values illustrate the complexity of decision making in extreme situations. these debates highlight the importance of a comprehensive approach, based on legal, ethical and humanitarian principles, to address these sensitive issues and reach solutions that seek to safeguard the dignity and rights of all involved. a paradigmatic case regarding the justification of torture in borderline circumstances arose from a “jakob von metzler” case in germany that generated a great deal of debate and a number of scientific articles. this case brought to the table essentially controversial issues such as the justification of the practice of physical or psychological torture by the state in situations of “state of necessity” to safeguard the life of an eleven-year-old boy who had been abducted on september 27th, 2002. this measure was positively accepted by the public as a means of justifying the protection of a lesser good in order to protect a higher good according to german legal dogmatics. this case in question posed a dilemma for the judges, as they had to make a decision between two important legal values: on the one hand, the protection of the physical integrity of a child and, on the other hand, the preservation of the psychological integrity of the alleged abductor who was suspected of having committed a crime. taking into account that the intention behind the physical coercion was not to clarify a crime, that the purpose of the act of torture was not to obtain any personal or psychological benefit, but rather to protect the life of the child, the judges, despite assessing the prohibition of torture, cruel, inhuman or degrading treatment by an agent of the state, imposed penalties considered as one of the lightest penalties provided for in german law. moreover, these penalties were imposed conditionally, which means that both should pay the fines only in case they commit such acts again (cano, 2014). geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 15 to understand this case it is necessary to mention that there are positions that advocate restricting the practice of torture and limiting it only to physical aggression, i.e., any act that causes physical pain, but not psychological distress. in this sense, it is important to bear in mind that both germany and italy do not criminalize torture, and although they have ratified the united nations convention against torture, which considers in its 2nd article that no exceptional situation may allow a state to justify torture, doctrine adds that it is not possible to argue that the threat, coercion or intimidation to obtain information or a confession cannot be considered torture21. in response to advocates standing up for the relativization of the prohibition of torture, criticism emerged from various sectors of politics and academia. these criticisms were seen as a setback to the country’s human rights culture. the european court of human rights followed up on the case and took note of it. in particular, the support of state officials and organizations related to the judicial system was criticized for their ignorance of the constitutional mandates regulating the issue. furthermore, it was emphasized that such a discussion could not allow room for the differentiation between “superior” and “inferior legal goods”, which is what daschner’s defenders were basically promulgating. finally, it was recalled that the federal republic of germany is a party to several international human rights instruments prohibiting torture, including the european convention on human rights, the european convention for the elimination of torture and inhuman or degrading treatment, and the international convention against torture and other cruel, inhuman or degrading treatment (góngora, 2005). finally, the “jakob von metzler” case reached the european court of human rights in strasbourg, and on june 1st, 2010, it convicted germany for psychological torture of magnus gäfgen on charges of kidnapping and murdering an 11-year-old boy, in violation of the 3rd article of the european convention on human rights, which prohibits torture and inhuman or degrading treatment. the court found that the threats of torture against gäfgen were incompatible with the fundamental values of a democratic society and that the coerced confession was inadmissible as evidence in criminal proceedings. the ruling established that torture is an inhumane and unacceptable method in all circumstances, including in cases of public safety and emergencies. however, judges in germany defended their actions, arguing that torture can never be justified, but that police often have to use pressure tactics to obtain critical information in kidnapping or terrorism situations. on the other hand, in a recent work, dworkin (2006), in a position against the relativization of the absolute prohibition of torture, wondered about the moral justification of torture. the case of a government that resorts to this practice to confront a terrorist threat is presented. after a conceptual clarification of what we should understand by human rights and a discussion of when a violation of human rights occurs, dworkin rejects torture as a means of securing political objectives, collective interests and the rights of others. for 21 for a broader perspective on the implications of the state of necessity and torture in criminal justice today, see muñoz’s (2017) keynote lecture. the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 16 dworkin, human rights find their foundation in two principles of human dignity; that of the intrinsic value of life and that of personal responsibility in the realization of that value in one’s own life. these two principles are concretized in a fundamental human right: the right to be treated according to a certain attitude. that is, an attitude that expresses the understanding that each person is a human being whose dignity matters. accepting such principles implies, for dworkin, limits to the actions of a government, group or person. the justification of such actions depends directly on respect for these principles (dworkin, 2006). la torre (2007a) adds to dworkin’s reflection with another very suggestive work on torture. in his study, the italian professor exposes, quite clearly, the different strategies justifying torture since the events of september 11th, 2001: ● the first strategy is that of the superiority of the executive, to allow certain cases of torture, with respect to state and international legality. the situation of the fight against terrorism is assimilated to war and, in these cases, it is said that the president is subject only to his own judgment. ● the second strategy is to consider that torture is a fact that occurs in any case in the face of terrorist attacks or serious emergencies against the security of the state. ● the third strategy, the most powerful and immediate, consists of justifying torture to extract information about an attack that will occur immediately and, for whose solution, only those who have the information can be tortured. it is the so-called rescue torture. ● the fourth strategy is the one that appeals to the responsibility of taking the decision to torture, placing us in the previous cases, exclusively to politicians, as if they enjoyed a different ethics from the rest that, in these cases, would be put to the test. there is no doubt that all these strategies, post 9/11, are contrary to the idea of the rule of law and its minimum guarantees22. and one does not have to go that far in the strategies of justification of torture to reject its use, in any case. as la torre (2007a) writes: thus, our conclusion can only be the following. torture has no place in the rule of law. in the first place, because it breaks the process of civilization of the juridical experience set in motion by the enlightenment and modernity, which aims at lowering the level of force and the rate of violence in social relations and, especially, in the juridical sphere. torture has no place in the 22 according to portilla (2008): “specifically, september 11, 2001, has reoriented the philosophy of global security, creating a defense project in which the principle of procedural legality disappears” (portilla, 2008, p. 51). geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 17 rule of law, however, for another, perhaps more important reason. it is a structural reason. the principle of legality, the rule of law, is the criterion according to which the determination of a conduct, and even more so of a violent conduct by a public body, must make the conduct in question foreseeable and proportional (la torre, 2007a, pp. 85-86). ferrajoli (2013), for his part, has established two simple types of guarantees aimed at preventing the continuation of this type of acts of torture, which are of great importance for the case of mexico, as we shall see. the first is a more rigid limitation of police powers of detention and the reintroduction of the obligation of assistance and the presence of defense counsel in any case of deprivation of personal liberty by the police. it is evident, considers ferrajoli (2013), that the restriction of personal liberty without guarantee of defense or jurisdictional controls, provides the privileged place and time for torture or, at least, for acts of violence by agents of the state, against unarmed citizens who have fallen into their hands. we know that the cases of torture and abuses by the authorities are high in mexico, that the police use it as a means of investigation in their cases, also the cause of omission to denounce on the part of the victims, because they run the risk of being threatened or persecuted for their statements. against this type of practices, the first guarantee, says ferrajoli (2013): “is the reduction to what is strictly necessary and, at the same time, the maximum transparency of any contact between the citizen and the police” (ferrajoli, 2013, p. 117). the second guarantee, for the safeguarding of personal integrity, is a clear and unequivocal stigmatization of the crime of torture, appropriately punished, as any form of pain or suffering unduly inflicted by public officials against any person deprived of his or her liberty. in no other matter as in this one, the penal norms of the state have an educational value or, as ferrajoli rightly points out, so to speak, performative of the moral sense, civic spirit and professional deontology of the police forces (ferrajoli, 2013). in yucatan this elementary negative guarantee is missing, since torture is ignored as a specific crime committed by public officials in our criminal law. in cases of torture, rather less serious crimes are applied, such as the generic abuse of authority, foreseen in article 251 of the state penal code, and the common injuries, contemplated in article 363 of the same norm. calling torture by its name and punishing it appropriately, rather than as simple injuries, does not mean merely subjecting it to the generic preventive purposes of criminal law. above all, it means recognizing its existence and calling for its eradication and rejection as an outrageous act for a civilized society. more than ever, in this case, in the yucatan penal system, the importance of language is manifest. that is to say, calling these abject and harmful violations of the person torture, instead of abuse or injury, is the first moral redress owed to the victims of torture and is the first civil, social and cultural guarantee against the repeated and normalized use of torture (ferrajoli, 2008a). in the united states, the debate over the legitimacy of torture in cases of terrorism is being discussed. for example, in the national defense strategy document drafted in march 2005 by the u.s. department of defense, by the pentagon, there is a paragraph that is revealing. there, where a list of the country’s vulnerabilities is made, we read the the prohibition of torture from a human rights perspective: fiction or reality in the current rule of law the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 18 following: “our strength as a nation state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial proceedings and terrorism”. according to the above paragraph, international institutions and legal proceedings are put on the same level as terrorism. moreover, there is a strong nietzschean accent in such a frightening paragraph; international law and judicial action are seen as weapons of the weak (strategy of the weak), to counteract, it is supposed, the success, the triumph and the vitality of the strong. regarding this pentagon text, la torre (2007b) has said: words are facts, and the consequences are not long in coming. thus, what has been the nightmare of every legal order since the enlightenment seems to be looming once again: the legalization of torture. torture, as an anticipated and therefore inevitably disproportionate use of force, reproduces to some extent the phenomenological structure of the preventive war of george w. bush’s new national security doctrine (p. 345). la torre (2007b), in addition, offering valuable data on this thorny issue, points out that the same john yoo, whom he calls the kronjurist who theorizes the legality of preventive war, was the one who, on august 2nd, 2002, in his capacity as deputy assistant attorney general, drafted a memorandum for the united states department of justice, in which he states the following. first, that the united states is subject to the 1987 international convention on torture, within the limits made explicit by a reservation expressed by the bush (sr.) presidency, which appears to restrict the semantic scope of the notion of torture. second, john yoo and his colleague jay bybee, assistant attorney general, propose a redefinition of torture, according to which torture is only inflicted at the threshold of imminent threat of death and prolonged mental harm. in addition, john yoo introduced the doctrine of double effect, so that torture would only occur where infliction of severe suffering is the immediate and direct purpose of the conduct. where suffering is presented as collateral damage, torture does not occur. as a consequence, by rigorously applying the doctrine of double effect, all torture aimed at obtaining information from the tortured cannot be qualified as such, i.e. as torture (la torre, 2007b). 5. conclusions in this time of crisis and social, political and cultural transformations, it is necessary to build a shared vision of human rights: to move from theory to practice, from ideal ethical values or demands to real concreteness. it may not be possible to establish a community of work linked by what we might call a “normal science of human rights23”, but it should at least inspire new awareness of how human rights are to be understood, justified and defended, in order to achieve their realization and practical application. clearly we are in a complex world, in which diverse cultures, political and economic systems coexist, as well as different social realities, and constantly changing, in which technological advances and globalization have transformed the ways in which we relate and communicate. however, law, and in particular 23 the suggestion of a possible “normal science of human rights”, supposes a social reading of the classic work of thomas kuhn (2013), on scientific paradigms. geofredo angulo lópez the age of human rights journal, 21 (december 2023), e7987 issn: 2340-9592 doi: 10.17561/tahrj.v21.7987 19 human rights, have not escaped this continuous transformation that has affected the rules of the game. today, the parameter of validity of a norm is no longer another norm. law is conceived as a complex, accessible, open and ductile system. law is a social reality; human rights are increasingly conditioned by extra-legal factors of a cultural, social and economic nature. now the influence of law has an impact on social reality or, on the contrary, social reality on law. we can no longer have a concept of human rights that disregards its own social reality, its level of acceptance, demand or its compliance, respect and guarantee. this creates a tension between the value posed by the abstract legal norm (values, principles), with the increasingly complex social reality, in which we see or perceive new dangers to human rights, from the most visible (such as insecurity, impunity, abuse of power, discrimination, violence), to the most intimate (such as acts of torture or domestic violence). although there have been important advances, we still have to face this paradox, which consists in the incapacity of the state and the justice system to confront such important challenges to human rights, such as poverty, inequality, gender violence, discrimination, acts of torture, among others. the current legal system seems to be in a state far from balance, between a controlled government and an effective government; between a norm that recognizes rights and its real legal effectiveness in human relations. it is important that the operationalization of human rights be carried out progressively, but also effectively; although important constitutional reforms have been carried out in the areas of amparo, criminal justice and human rights, it is essential to create and maintain the proper checks and balances in the midst of this complexity to guarantee the human rights of all people. therefore, torture, cruel, inhuman and degrading mistreatment must be completely eradicated in any society that seeks to be just and respectful of human rights; its use is incompatible with any modern and democratic justice system. other mechanisms must be found to obtain information and resolve difficult or essentially controversial cases; that we truly understand that there is no excuse for torture and that it can never be considered a victory. torture always violates human rights and goes against the principles of any rule of law and democracy. therefore, it is important to understand that, in the fight against torture, prevention will always be more effective than punishment (ribotta, 2012). ultimately, we must aspire to an effective justice system that emphasizes the importance of education and training of responsible and ethical public officials who acquire a new awareness of how to understand and protect human rights and 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https://www.diputados.gob.mx/leyesbiblio/pdf/cpeum.pdf https://www.diputados.gob.mx/leyesbiblio/pdf/lgpist.pdf the prohibition of torture from a human rights perspective: fiction or reality in the current abstract 1. introduction 2. content and scope of the concept of torture 2.1. the scope of the principle of equal appreciation of differences in the concept of torture 3. the prohibition of torture as a human right: aspects of efficacy and social legitimacy 4. current theories on the ethical-rational justification of torture: main positions in favor and 5. conclusions references jurisprudential precedents international organizations public institutions legal norms addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 1 addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach hilary nwaechefu1, nnawulezi uche2, mary-ann o. ajayi3, ogah chinyere constance4 abstract: human rights abuses in south africa occasioned by xenophobic attacks in south africa had occurred intermittently for over a decade despite the hue and cry against xenophobia. driven primarily by efforts to protect human life and overcome the challenges of xenophobia, some international human rights organisations expressed their views on the curtailment of human rights abuses perpetrated in south africa. contextually, southafrica has notable human rights organisations, yet human rights abuses happen through xenophobic attacks in some parts of the country. the primary objective of this paper is to identify human rights challenges brought about by xenophobic attacks, including the right to human dignity and the right to life. this methodology adopted in this paper included reference to statutes, internet sources, and newspaper publications. this paper finds, amongst others, that despite the united nations conventions and other international laws guaranteeing the human rights of all persons, the south african government appeared overwhelmed by the xenophobic attacks in dealing with the situation. this paper made useful recommendations towards preventing future xenophobic attacks and avoiding human rights violations. keywords: xenophobic attack, human rights, south african, international instruments. 1. introduction the abuse of human rights in south africa via xenophobia is topical and trending, and several authorities have expressed their views on the ugly situation prevalent in south africa. those who expressed their views include the international communities, journalists, diplomats, international lawyers, parliamentarians of several countries, political scientists, religious bodies, international observers, etc. the universal declaration of human rights (udhr), a founding document of human rights law, requires universal respect for human rights (general assembly resolution 217a (111), united nations document a/810, 1948). this article adopts a human rights-based approach focused on international human rights standards and operationally directed at promoting and protecting the human rights of persons in south africa and beyond. 1 phd, bl: lecturer, faculty of law, redeemer’s university, ede, nigeria (larryokeypg@gmail.com). 2 phd, bl: lecturer, faculty of law, alex ekwueme federal university ndufu-alike ikwo, ebonyi state, nigeria (uchennawulezi@gmail.com, nnawulezi.uche@funai.edu.ng). 3 phd, bl: reader, department of public and international law, faculty of law, bowen university, iwo, osun state, nigeria. 4 phd, bl: lecturer, faculty of law, ebonyi state university, ebonyi state, nigeria (ogah.chinyere@ebsu.edu.ng, ogahchinyerec@gmail.com). mailto:larryokeypg@gmail.com mailto:uchennawulezi@gmail.com mailto:nnawulezi.uche@funai.edu.ng mailto:ogah.chinyere@ebsu.edu.ng mailto:ogahchinyerec@gmail.com addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 2 despite the persistence of concern and criticisms from different stakeholders, xenophobic attacks have been noticed intermittently in some provinces in south africa. xenophobia consists of highly negative perceptions and practices that discriminate against non-citizen groups based on their foreign origin or nationality (crush and ramachandran, 2009 47). it may be seen as an act of violence, aggression and brutality towards migrant groups that represent extreme and escalated xenophobia. the extent of xenophobic attacks in south africa is disturbing and worrisome compared to what is prevalent in other regions where similar situations have occurred (gordon, 2017). these non-state actors’ attacks on foreigners in south africa had caused great pain, and no reparations had been made to victims or dead victims’ next of kin. when issues of human rights abuse or brutality are brought before the international court of justice (icj), the court usually awards punitive damages against the government of the perpetuating state actors. many writers in the past and present have condemned the abuse of human rights by any country. this essentially meant that the unabated occurrence of xenophobic attacks in south africa should be adequately addressed. it should also be addressed in other african countries bearing in mind that when such an ugly incident occurs, it is only the africans in that country who are the victims or casualties (fagbadebo & ruffin, 2018). notwithstanding scholarly efforts and international judicial contributions in denouncing every trace of violation of human rights, xenophobic attacks in south africa still occur intermittently. however, there have been condemnations of late by the international players against xenophobia. there is no gainsaying that for the human rights of domestic and foreign citizens to be preserved, south africa’s government must maintain some degree of proactive action. this is not to say the government folded its hands. still, it needs to put in more efforts by way of local legislation, monitoring and enforcing the respect for human rights by all, according to the united nations declaration. undoubtedly, many foreigners have suffered tremendous and unquantifiable brutalities resulting from xenophobia. nevertheless, peaceful coexistence in africa is essential for human rights protection in african democracy, and by so doing, south africa can be seen as the cynosure of africa. an article of this nature will serve the immediate and future needs of contemporary jurisprudence and international relations. 2. overview of concepts defining xenophobia, human rights and fundamental rights conceptually, the black’s law dictionary did not define xenophobia. still, the chambers dictionary5 defined xenophobia as “fear of things foreign” and is best tailored to unique challenges and circumstances confronting the human rights of a state. the dictionary further described a xenophobe as “one who fears or hates foreigners or things foreign”6. despite its prevalence, xenophobia is not an unavoidable 5 20th ed. page 1579 hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 3 consequence of human rights. like any other violation, it can be prevented. in addition, one of the significant points to note herein is that xenophobia is often construed as racism (akinola, 2018). this position was reaffirmed by kaluba, who submitted that xenophobia and racism overlaps even though they are two different concepts (kaluba, 2016). on the other leg, the term human rights, according to black’s law dictionary, is defined as the freedom, immunities and benefits that, according to modern values (especially at the international level), all human beings should be able to claim as a matter of right in the society in which they live7. undoubtedly, human rights law applies at all times. furthermore, in defining fundamental human rights, the blacks law dictionary8 defines a fundamental right as a right derived from any country’s natural law, fundamental law, or constitutional law. a significant component of liberty, the encroachment of which is rigorously tested by courts to ascertain the soundness of the purported government justification. in light of the above definitions of human rights, sometimes one is tempted to ask if human rights have been recognised to the extent where violations may be actionable in court or a mere rhetoric (knowes, 2003: 133). this has brought about the continued misconception of human rights(keet, 2010). although it may be questioned why the issue of xenophobia has remained unabated in south africa even though the bill of rights, as contained in the south african constitution, provides for the right to life, equality of rights of everyone and also the right to movement of persons. it is today clear that human rights are construed as a veritable tool for addressing the inhuman and degrading treatment of human beings around the globe (dutoit, 2014:48-69). indeed, the above definitions of human rights and fundamental rights by the blacks law dictionary show that human rights are the rights of the citizens, not privileges, regardless of their country of abode. however, human rights are, therefore, a global affair. it is founded on the international principles of non-discrimination, meaningful participation and accountability aimed at analysing equalities and redressing discriminatory practices and human rights violations9. 2.1. history of xenophobic attack in south africa tracing the background of xenophobia in south africa will help us appreciate the enormity of the phenomenon called xenophobia. the xenophobic account states that before 1994, foreigners faced discrimination in south africa. this is not to say that xenophobia started in 1994; however, it was thought that after majority rule in 1994, the discrimination would abate; but regrettably, between 2000 and 2008, as many as 67 persons were reported killed via xenophobic attacks10. a deadly attack on foreigners was reported in may 2008, 6 ibid 74 7 b.a. bryan,black’s law dictionary ( 9th edn.), united states of america: thomson reuters, 2004, p. 809. 8 ibid 9 https://www.un.org/ruleoflaw/thematic-areas/human-rights/equality-and-non-discrimination/ accessed >9th june 2023 https://www.un.org/ruleoflaw/thematic-areas/human-rights/equality-and-non-discrimination/ addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 4 upon which 62 persons were killed, among which 21 were south africans (thinane, jonas sello 12th november 2022). it was believed in some quarters that the apartheid policy placed a mindset of discrimination in the black south africans, making them unfriendly towards foreigners, especially the illegal migrants11. a major xenophobic attack in 2015 at grahamstown in the eastern cape displaced over 500 persons, and over 300 shops and properties were destroyed. it was believed that muslims were the main victims of this 2015 mayhem. the 2019 attack in jeppeston and johannesburg also killed several shops and business premises. it started in johannesburg on 1st september 2019, and foreigners were the target (haffajee, ferial on 2nd september 2019). a cursory look at the number of persons killed in these attacks is beyond mere human rights abuses. it is a crime against humanity for people to be killed and businesses to be destroyed with impunity serially. 2.2. south africa and human rights protection under its constitution it is important to note that section 9 of the constitution of south africa 1996 provided for legal and social equality. it must be emphasised that section 9 was passed under the universal declaration of human rights12. section 9 of the constitution of south africa provides for the equality of all citizens before the law, and citizens have the right to equal protection and benefit from the law. further, section 1013 of the same constitution recognises the right to human dignity and the need to respect and protect the same. in the same vein, section 1114 of said constitution 1996 provides: “everyone has the right to life”. this section 11 received judicial confirmation in s v. makwanyane15, where the south african court ruled that the current constitution of south africa prohibits capital punishment. accordingly, in section 12 of the south african constitution, south africa firmly believes in the fair treatment of persons within its jurisdiction. this can be seen in section 916 constitution of south africa 1996, which provides for legal and social equality with the wordings clearly in line with the universal declaration of human rights and which states: “everyone is equal before the law and has the right to equal protection and benefit of the law”. 10 https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_ hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq =trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargam guiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqww qqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabaca bacgbca&sclient=gws-wiz-serp accessed >9th june 2023 11 https://www.google.com/search?gs_ssp=ejzj4tvp1zc0tkuqlcyskig0yprszcgslskvqltit1oosm3ll 8jit8pmvmjmuyjoly3juehmk8pmtgqady4tmq&q=history+of+xenophobia+in+south +africa&rlz=1c1ytuh_enng1040ng1040&oq=history+of+xenophobia&aqs=chrome.1.69i57j46i 512j0i512l3j0i22i30l3j0i15i22i30.14002j0j15&sourceid=chrome&ie=utf-8 accessed >20th december 2022 12 1948 13 the constitution of south africa 1996 14 ibid. 15 s v. makwanyane (1995) zacc 3; 195 (6) bclr 665 16 constitution of south africa 1996. https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?q=history+of+xenophobia+in+south+africa&sxsrf=apwxedd4zjyek_hvq6pi0bdz1qwnyplsbq%3a1686499070358&ei=_u6fzokmfysp8gldnyfidw&oq=trace+the+development++of+xenophobia+in+south+africa&gs_lcp=cgxnd3mtd2l6lxnlcnaqargamguiabcibdifcaaqogqybqgaekieogoiabbhenyeeladoggiircgarddbdokcceqoaeqwwqqckoeceeyafc6bli5omdixggbcaf4a4abgxoiae5-kgennc0xljgumi4xljeum5gbakabacabacgbca&sclient=gws-wiz-serp https://www.google.com/search?gs_ssp=ejzj4tvp1zc0tkuqlcyskig0yprszcgslskvqltit1oosm3ll8jit8pmvmjmuyjoly3juehmk8pmtgqady4tmq&q=history+of+xenophobia+in+south+africa&rlz=1c1ytuh_enng1040ng1040&oq=history+of+xenophobia&aqs=chrome.1.69i57j46i512j0i512l3j0i22i30l3j0i15i22i30.14002j0j15&sourceid=chrome&ie=utf-8 https://www.google.com/search?gs_ssp=ejzj4tvp1zc0tkuqlcyskig0yprszcgslskvqltit1oosm3ll8jit8pmvmjmuyjoly3juehmk8pmtgqady4tmq&q=history+of+xenophobia+in+south+africa&rlz=1c1ytuh_enng1040ng1040&oq=history+of+xenophobia&aqs=chrome.1.69i57j46i512j0i512l3j0i22i30l3j0i15i22i30.14002j0j15&sourceid=chrome&ie=utf-8 https://www.google.com/search?gs_ssp=ejzj4tvp1zc0tkuqlcyskig0yprszcgslskvqltit1oosm3ll8jit8pmvmjmuyjoly3juehmk8pmtgqady4tmq&q=history+of+xenophobia+in+south+africa&rlz=1c1ytuh_enng1040ng1040&oq=history+of+xenophobia&aqs=chrome.1.69i57j46i512j0i512l3j0i22i30l3j0i15i22i30.14002j0j15&sourceid=chrome&ie=utf-8 https://www.google.com/search?gs_ssp=ejzj4tvp1zc0tkuqlcyskig0yprszcgslskvqltit1oosm3ll8jit8pmvmjmuyjoly3juehmk8pmtgqady4tmq&q=history+of+xenophobia+in+south+africa&rlz=1c1ytuh_enng1040ng1040&oq=history+of+xenophobia&aqs=chrome.1.69i57j46i512j0i512l3j0i22i30l3j0i15i22i30.14002j0j15&sourceid=chrome&ie=utf-8 hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 5 the dignity and security of life are well portrayed in the south african constitution. this is shown under section 1017 of the south african constitution, which provides: ‘everyone has inherent dignity and the right to have their dignity respected and protected’. the dignity of a human person cannot be realised if the person’s security and freedom are not guaranteed. this prompted the drafters of the constitution to insert section 12. we shall reproduce section 12 of the south african constitution for emphasis: everyone has the right to freedom and security of the person which includes the right (a) not to be deprived of freedom arbitrarily or without just cause (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way18. the dignity of the human person and the right to life or human rights generally is so sacrosanct; these rights, when breached, the breaching authority or person as the case may be, can be challenged or ought to be challenged in the competent court of jurisdiction to test the justification of the violation. bearing in mind that xenophobia is the theme of this article, we shall examine sections 9, 10 and 11, respectively, of the constitution of south africa 1996. however, the various sections protecting human rights had their foundation in the united nations organization (uno), and this explains why the united nations has, by its declaration19, pressed it upon member states to observe and promote the observance and enforcement of the respect for the rights of its citizens at all times. articles 3 and 5 of the universal declaration of human rights speak volumes against human rights violations. article 3 provides everyone the right to life, liberty and security. article 5 provides that no one shall be subjected to torture or cruel, inhuman and degrading punishment. that said, it must be emphasised that the above two cited articles are selfexplanatory in their wording so that everybody who cares to peruse them can enlighten himself. therefore, the un cannot fold its hand and watch any country flout these laudable provisions in articles 3 and 5. the united nations must intervene through its monitoring agencies where it perceives that a violation is likely to occur or has occurred. the culprit or offending member state must yield with good grace, regardless of the status of the member state in the comity of nations. in the african continent, there is a wake-up call for the respect of human rights by all and sundry. no wonder that in 1979 the assembly of heads of states and governments of the organization of african unity (oau), now called the african union (au), came up with the african charter on human and peoples rights, adopted in banjul, gambia and came into force on 21st october 1981. the charter emphasised political, economic, social and cultural rights. the african charter provides for establishing the african commission on human and peoples rights 17 ibid. 18 south africa (n 5) . 19 universal declaration of human rights (1948); https://www.iiste.org/journals/>accessed 4 april 2020. https://www.iiste.org/journals/>accessed addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 6 and ensures these rights are protected. it should be noted in this international instrument that south africa was a signatory and domesticated, as exemplified in the provision of the south african constitution cited earlier. these international instruments have become domestic laws with global backup. no wonder in the nigeria case of fawehinmi v. gen sani abacha & ors20, the court of appeal in nigeria stated that the african charter on human and peoples rights, having been incorporated into the nigeria organic law by legislation is enforceable in nigeria and same has consequently been enforced. furthermore, the african charter did not mince words as it made it clear that the dignity of the human person must be honoured and respected at all times except as provided by the domestic laws after due process of the law of that state; no human being should be subjected to cruel or degrading treatments. also, article 5 (a)21 states: “every individual shall have the right to the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” the implication of article 5 (a) above of the african charter and its domestication and subsequent judicial pronouncement, as seen above in s v makwanyane22, implied that south african citizens, their government must observe the charter and see that all persons, citizens and nationals of other countries have their human rights preserved in south africa. it is not just the un charter that emphasises respecting human rights for human persons irrespective of where they reside or do business. articles 4 and 5 of the african charter on human and peoples rights 1981 also emphasised the dignity of human persons. article 523 whereby provides thus: every individual shall have the right to the dignity inherent in a human being and to the recognition of his legal status. all forms of exploitation and degrading of man, particularly, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. while undoubtedly important, the implication of article 5 above of the african charter and its domestication and subsequent judicial pronouncement, as seen in the case of s v. makwanyane24, implied that south african citizens and their government must observe and comply with the provisions of the charter and ensure that all persons, citizens and nationals of other countries have their human rights preserved and protected in south africa as in elsewhere around the globe. further, this charter has created or ought to create the necessary consciousness in the heart of every leader in the world to observe and protect human rights. the right to dignity of the human person and the right to life is 20 (1996) 9 nwlr ( pt 475) 710 (ca) 21 african charter on human and peoples rights (1981). 22 (1995) zacc 3; 195 (6) bclr 665. (hc) 23 n17 24 n18 hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 7 clear from drafting of the constitution of south africa 1996. it must be emphasised that xenophobes failed to observe the constitution of south africa 1996; instead, they maimed and killed persons in utter disregard to the right to life and dignity of human persons. notably, a person being dehumanised or killed due to a xenophobic attack is evidence of human rights violation, and the perpetrators must be brought to book. the south african courts have never hesitated when the opportunity shows up; to condemn any acts that degrade human persons or wanton destruction of lives and property. the judges in south africa are humans and will not be pleased if given inhuman treatment in a foreign land. this is why xenophobic attacks must be stopped in south africa and elsewhere in the world. thus in ngomane v city of johannesburg metropolitan municipality25, the applicants were forcibly removed from the traffic estate and their property destroyed in the city of johannesburg, after which the applicants brought an action for declaration of breach of their rights to dignity of human persons and unlawful destruction of property. the court found for the applicants and condemned the action of the respondent for a breach of the dignity of the human person and unlawful destruction of property. the court, therefore, awarded constitutional damages in defence of the constitution, which the respondent breached by its action. similarly, in the nigeria case of alhaja abibatu mogaji & ors v. board of customs and excise & anor26, the plaintiffs were market women. they brought a civil action against the defendants, the board of customs and excise and its director in nigeria, alleging that the plaintiffs were beaten with horsewhip by the defendant’s staff assisted by soldiers and mobile police officers. the plaintiffs further alleged that the customs officials and other law enforcement fired guns and teargas on the nine plaintiffs for the sole reason that the plaintiffs were purportedly in possession of certain contraband goods in their shops. the court held that the defendants’ action violated the women’s fundamental rights under section 31 (9) of the 1979 constitution of the federal republic of nigeria, now section 34 of the 1999 constitution. the court condemned the action of the defendants in the following words: i would make an order for a declaration that the action by the customs men aided by police officers and soldiers with the using guns, firing of same, the use of horsewhip and tear gas for the apprehension, seizure and detention of goods suspected to be prohibited as was meted to first, second, third, fourth, fifth, sixth, seventh and eighth plaintiffs’ witnesses and removal of their goods without due investigations violate the rights of the plaintiffs under the constitution of the federal republic of nigeria, not to be subjected to any inhuman or degrading treatment.27 25 (2019) 3 all sa 69 (sga). 26 (1982 ) 3 nclr 552 at 562 (hc) 27 ibid addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 8 drawing from the above scenarios, one can see from the two cases cited that both nigeria and south africa and most countries of the world consider the breach of the right of the dignity of the human person a serious legal wrong that both courts did not hesitate to make pronouncements and awarded damages as appropriate. it should be noted that south africa operates the rule of law, so whenever such actions bordering on a breach of the dignity of human persons were brought to the court’s attention, the courts made pronouncements by way of an award against the breaching authority or party. according to international standards, every person has the right to liberty, and no one shall be deprived of this right unlawfully or arbitrarily (article 37(b) convention on right of the child, 1989, article 9(1) international covenant on civil and political rights, 1966). furthermore, since the position of international law on the issue of xenophobia is clear, it should be kept in mind that article 4(a) of the international convention on the elimination of all forms of racial discrimination to which south africa is a party, required states parties to refrain from acts capable of incitement to racial discrimination or violence. in this respect, xenophobic attacks on persons in south africa are uncalled for, and the perpetrators could best be described as barbarians. a xenophobic attack is a barbaric act that infringes on one’s right to liberty and the deprivation of lawful rights. further, to appreciate the importance of the right to life, the universal declaration of human rights (udhr) and the international covenant on civil and political rights (iccpr) both set forth the basic human rights to be universally safeguarded (preamble universal declaration of human rights, 1948 and international covenant on civil and political rights, 1966). in a similar vein, drawing from the predominant provisions of section 10 of the constitution of south africa, which provides that “everyone has the right to life”,; as well as the decisions of the court in s v. makwanyane,28 the south african court also ruled that the current constitution of south africa prohibited capital punishment. the decision in makwanyane’s case makes it judicially clear that taking human life without due process is a condemnable and severe offence. the position of the african charter on human and peoples rights, as regards the right to life, is that human rights are inviolable. every human being shall enjoy his life and the integrity of his person. it is, therefore, an aberration to deprive a person of this right arbitrarily.29 in light of the above, it is right to say that the constitution of south africa, coupled with the universal declaration of human rights 1948 and the african charter on human and peoples rights 1981 have all shown without doubt that respect for human rights is at the centre of democracy around the globe. all must uphold the human rights crusade and should not toil with it, no matter the citizen involvedwhether national of south africa or a foreigner in south africa. in the nigerian environment, the supreme court of nigeria demonstrated respect for the right to life when it unequivocally held that the execution of an appellant during the pendency of the appeal violated the applicant’s right to life, and the court awarded damages against the government.30 28 (1995) zacc 3; 195 (6) bclr 665. (hc) 29 art. 4 achpr 1981. 30 nasiru bello v. the state, 9 nwlr part 589, 765 (1996). hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 9 notwithstanding international instruments protecting human life and the dignity of the human person, cum constitutional provisions in south africa already highlighted above, which ought to be respected by all and sundry, some south african citizens had wantonly and flagrantly abused the human right to dignity and ownership of property, as shown in the manner lives and properties were lost between 2000 and 2008, 2015 and 2019. given the above prevailing circumstances, it may legitimately be questioned whether the expansive interpretations of the relevant treaty provisions are suitable and or capable of addressing the issue of xenophobia in south africa. the legal position regarding xenophobic violence in south africa has received widespread condemnation by scholars of international law and human rights law. on different occasions, they have expressed their concerns about the ugly situation, but the fact remains that the root cause of xenophobia has not been addressed (tevera, 2013:926). the question that must be asked at this stage is: if the south african government is prepared to address the issue of xenophobia, why has it failed to understand the causal factors responsible for xenophobic attacks? however, it is contended that no matter what has been canvassed as reasons for the xenophobic attack on non-nationals by southafrican citizens, it must be emphasised that the sanctity of human life remained sacred. (human rights watch report, 2020:4). 2.3. reasons adduced for xenophobic attacks there is a need to examine the reasons for xenophobia and proffer solutions to these incessant xenophobic attacks against foreigners in south africa. notwithstanding several international instruments protecting human life and the dignity of human persons, some south africans have attacked and killed foreigners in the country. some south african citizens had disregarded the right to life and dignity of human persons due to attacks on foreigners. they also violated the respect for the right to property ownership by destroying properties belonging to foreigners. reasons adduced for xenophobic attacks in south africa are as follows: i. the rise in the unemployment level abdi latif dahir reported that in september 2019, 29% of the south african population was unemployed as of july 2019, representing 6.7 million. 71% of the unemployed persons spent about a year before finding a job. he further said that many south africans blamed the immigrants who had taken over their careers, leaving them unemployed. the frustration caused by the unemployment rate provoked xenophobic attacks on foreigners. the unemployment ratio prompted south african president mr cyril ramaphosa to refer to the situation as a deep and severe crisis31. 31 https://qz.com/africa/1708814/what-is-behind-south-africas-xenophobic-attacks-on-foreigners https://qz.com/africa/1708814/what-is-behind-south-africas-xenophobic-attacks-on-foreigners addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 10 there is no doubt that unemployment could cause frustration in the life of the unemployed, who, if not counselled and assisted, may become a deviant in the society in which he lives. a frustrated citizen may vent his frustration on any perceived cause of the deprivation in his life. it is submitted that the south african government should create a robust unemployment scheme far above what obtains now. the government should establish a youth empowerment scheme to assist unemployed persons in gaining employment. if this is effectively implemented, the unemployed citizens’ tendency to attack foreigners will be removed or minimised. ii. rise in crime wave in south africa. abdi latif dahir, in his report, noted that south africa experienced high crime waves in 2019, resulting in over twenty-one thousand persons (21000) killed 2019. there are murder cases, sexual offences, armed robbery and drug-related offences. these offences were attributed to the presence of immigrants in south africa32. criminality is a product of the society where the crimes are perpetrated. sexual offences, armed robbery, murder and other vices are not peculiar to any nationality or race. without migrants, criminality will exist in south africa, as in any other society. suppose unemployment led people into crimes of armed robbery and drug peddling. in that case, it is the responsibility of the government of south africa to expand or diversify the economy to boost employment opportunities. no statistics point to foreigners as the only crime perpetrators in south africa. we submit that the government should strengthen its security apparatus to meet the security challenges in the country. iii. the rising number of immigrants it was believed the rise in the immigrants in south africa had caused overstretch in the infrastructure such as the health care system and housing needs leading to high house rents. the reporter countered these claims by stating that the immigrants represented only 2.1% of the total population of 51.7 million in 2011, but the figure had risen to 55.7 in 2019. south african authorities deported 370 000 immigrants33 between 2012 and 2016, mainly zimbabwean, lesotho and mozambique nationals, to reduce the impact of immigrants on the economy34. south africa is a member of the african union. it is expected that fellow africans are likely to migrate to south africa if it is their destination of choice. migration is a product of several factors ranging from seeking greener pastures to safety purposes. south africa should adopt stringent measures to curtail illegal migrants. some of these migrants contribute their skills towards the economic development of their host country. there is no proof that migrants alone constitute criminals in south africa. the report of abdi latif 32 ibid 33 n27 34 ibid hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 11 dahir reveals that migrants constituted only 2.1% of the total population of south africa in 201935. this proportion is insignificant to form the high crime rate in south africa. iv. economic and social challenges the south african xenophobes also felt that foreigners had taken over the economic opportunities of the nationals of south africa. it was also reported that some south africans complained that foreigners were taking over their jobs and women and living prosperous lives. at the same time, the citizens of south africa experienced a lack and hunger. the xenophobic attacks were targeted at non-white foreigners but directed at citizens of malawi, zambia, zimbabwe and nigeria, as well as asian and arabs nationals.36 it would appear that the south africans who perpetuated xenophobia were venting their economic frustration on foreigners. if indeed those foreigners in south africa constitute economic sabotage to south africa, they should be prosecuted following due process. the xenophobic attack is jungle justice and is unacceptable anywhere in the world. south african citizens experience poverty and social inequality, and more than 7.2 million live with hiv.37all these cumulatively trigger xenophobic attacks on foreigners. reacting to attacks on foreigners, the vice-chancellor of the university of johannesburg, professor tshilidzi marwala, pointed out that when people face economic or social challenges, they vent their frustration on foreigners. the vice-chancellor condemned the looting of shops and assault on foreigners and saw it as barbaric and unacceptable under the rule of law.38 2.4. efforts by the south african authority to curb xenophobic attacks i. setting up committees on xenophobic occurrences: it is not correct for any person to say that the south african government has not taken steps to curb xenophobia. in may 2008, xenophobia, the government created ad hoc committees in parliament, ministries and local government to address the xenophobic occurrences. the outcome of these committees was that these attacks were crimes and not xenophobia. the xenophobia issue became forgotten after some time, and no more actions were taken to prevent reoccurrence, as the attacks were tagged just crimes, not xenophobia.39 35 ibid 36 “the xenophobic attacks were targeted at non-white foreigners but directed at citizens of malawi, zambia, zimbabwe and nigeria as well as asian and arabs nationals” new telegraph ( lagos september 11 2019) 15. 37 ibid. 38 “the vice-chancellor of the university of johannesburg professor tshilidzi marwala condemned the looting of shops and assault on foreigners,” the guardian (lagos september 15 2019 ) 15. 39 committee on the elimination of racial discrimination (cerd), general recommendation no. 30 discrimination against non citizens, 1 october 2002. available online at: http://www.unhcr.org/refworld/ docid/45139e084.html. also available on the unhcr-net at: https://goo.gl/426o7f http://www.unhcr.org/refworld/docid/45139e084.html http://www.unhcr.org/refworld/docid/45139e084.html https://goo.gl/426o7f addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 12 ii. police approach: the south african police have played some roles in stopping xenophobic attacks. the police were charged with protecting lives and properties in south africa, with the same functions as police in other parts of the world. south africa did not consider attacks such as looting of shops and robbery as xenophobia. the police tag such activities as just crimes. to them, referring to just crime as xenophobia was a way of tarnishing the image of south africa.40 iii. the gauteng premier has advised south african to unite against xenophobia rather than seeing foreigners as the main problem of south africa. he called upon the authorities to find a lasting solution to constant attacks on foreigners 41. 2.5. six things south africa has suffered due to xenophobia i. the smearing of the image of south africa in the international arena. as a confirmation that other countries condemned south african xenophobic attacks on foreigners, some reprisal attacks occurred in lagos, the commercial nerve centre of nigeria. angry nigerian youths attacked south african businesses in lagos. the most affected were the shoprite supermarket locations and mtn communication ltd. responding promptly, the nigerian police proactively dispersed the protesters and mounted security around all identified south african businesses, including the dstv communication offices. this was professionalism exhibited by the nigeria police force, which the police in south africa were expected to demonstrate. ii. south african president cyril ramophosa was booed at the late robert mugabe’s burial in zimbabwe. world leaders gathered in zimbabwe to attend the burial ceremony of robert mugabe. mugabe had ruled his country for thirty-seven (37) and died at 95 years. at the event that world leaders attended, president cyril ramophosa of south africa inclusive, ramophosa, rose to speak at the burial ceremony. the crowd booed him and almost prevented him from speaking in protest over the xenophobic attack on zimbabweans and other nationals living in johannesburg, south africa. it took the intervention of government officials who pleaded with the booing crowd before president ramophosa could be allowed to make his speech. as a result of the embarrassment, he apologised for the xenophobic attack in his country. he also eulogised the sterling leadership qualities of the late robert mugabe, whose government was toppled in 2017 following a coup de tat. similarly, zambian hot fm banned playing south african music on its station.42 40 https://mg.co.za/article/2013-05-28-diepsloot-crime-xenophobia-or-both/ 41 http://ewn.co.za/2014/08/26/xenophobic-attacks-in-the-spotlight 42 d. durosomi “zambian hot fm banned the playing of south africa music,” sunday tribune newspaper (ibadan september 15 2019) 6 https://mg.co.za/article/2013-05-28-diepsloot-crime-xenophobia-or-both/ http://ewn.co.za/2014/08/26/xenophobic-attacks-in-the-spotlight hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 13 iii. the zambia football association cancelled the friendly match with south africa, which was to take place in 2019 in lusaka, zambia. there could be reprisal attacks on the south african team with grave consequences.43 iv. african leaders boycotted the famous world economic forum billed to hold in south africa. the prominent leaders who boycotted the event were the presidents of nigeria, malawi and rwanda. other leaders later followed suit. this boycott was not a minor embarrassment to the south african image in the international arena.44 iv. the south african diplomatic mission in abuja, nigeria, was temporarily shut down due to the apprehension of a reprisal attack resulting from the xenophobic attack on other african nationals in south africa. this was an embarrassment to the government of president cyril ramophosa of south africa.45 v. president muhammadu buhari of nigeria, expressing his displeasure, sent an envoy to the south african president, cyril ramaphosa, reminding him of his international responsibility of protecting the lives and properties of foreigners living in his country.46 president buhari had ordered the evacuation of nigerians from south africa following the intermittent attacks on nigerian business interests and properties of nigerians in south africa. the nigerian president also sent a message through the special envoy to south africa ambassador ahmed abubakar, to the south african president, mr cyril ramaphosa, expressing concern and worry over violence against citizens of the brotherly african nation. following the presidential directive for the evacuation of nigerians, the chairman of nigeria diaspora commission (nidcom), abike dabiri erewa, took steps, and six hundred and forty (640) nigerians registered for a voluntary return home and two planes were chartered to bring them home.47 the purpose and theme of the research the purpose of conducting this research, as seen from the discussion, is to bring out the importance of maintaining or sustaining the human rights upon which the survival and happiness of humanity lie. it is evident that in a military autocracy, human rights abuses were rampant, and people groaned in pain under such a dictatorial regime with little or no hope of redress because even the court is not independent in military systems. however, in a civil democracy, we still witness human rights abuses through xenophobic attacks, as exemplified in the south african environment. researching what causes 43 e. makhaya “zambia football association cancelled the friendly match with south africa.” https:// www.pulse.com.gh >accessed 25 march 2020. 44 ibid. 45 ibid. 46 s. nuhu “president muhammadu buhari sent an envoy to the south african president, cyril ramaphosa reminding him of his international responsibility of protecting lives and properties of foreigners living in his country,”vanguard newspaper (lagos september 4 2019) 5. 47 e. q. iroanusi “640 nigerians registered for a voluntary return home” guardian newspaper ( lagos september 10 2019) 6. https://www.pulse.com.gh https://www.pulse.com.gh addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 14 xenophobia and proffering solutions to curb the challenges is necessary. the novelty of this research can be seen in the suggestions put forward in the recommendation section, which, if implemented, will prevent future xenophobia, and xenophobes will be kept in check timely. information and knowledge are power; hence this paper is meant to call upon the south african government and the international community to take specified steps towards keeping south africa and other parts of the world free from future xenophobia. recommendations i. south africa should holistically implement the international and regional human rights instruments and all relevant standards that protect the human rights of all persons at risk of xenophobia. ii. south africa should strengthen its law enforcement and criminal justice responses to xenophobia, including adequate training and resources availabilities; iii. south africa should create a specialised national body that would build networks with civil societies to handle the xenophobic situation; iv. the international community should impose economic and political sanctions against south africa, bearing in mind that xenophobic attacks have become a recurring event in south africa. there is a need to impose economic and political sanctions on south africa. the members of the united nations should break diplomatic relations to compel south africa to respect united nations convention on human rights in the spirit of pactum sunt savanda and as part of the ius cogens rule, of which south africa is a signatory. by this measure, south africa will realise that no nation in this world, no matter how powerful, has a right to maltreat and wantonly kill the nationals of other countries in its territory. v. united nations security council should compel south africa to pay reparation to victims of xenophobic attacks and also make reparation to the victims’ countries. we recommend that the united nations force the south african government to pay a fine of five hundred thousand dollars ($500 000.00) to every victim of xenophobic attacks or the family of the murdered person. this measure will put the government of south africa on its toes to take proactive action to curtail xenophobic attacks and bring xenophobes to book in its territory. vi. united nations security council should compel south africa to obey the international conventions on human rights. this could be achieved by the united nations sending a monitoring team to south africa to force compliance on respect for human rights. the team should be permanently stationed in south africa to promptly monitor and report any future human rights abuses and xenophobic attacks, arrest the xenophobes, and prosecute them. vii. governments of countries of the victims of the attacks should drag the south african government to the international court of justice (icj) in hague to get justice. suppose the home governments of victims begin to sue the south african government at the icj, and several millions of dollars in damages hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 15 are awarded against south africa, the south african government will call its citizens to order regarding xenophobia. south african government cannot risk disobeying the decision of the international court of justice, knowing the security council will enforce it. 3. conclusion this article has examined how law and policy can assist in addressing cases of xenophobic attack in south africa for human rights protection. international and regional treaties towards promoting and preventing xenophobic attacks, including introducing policies aimed at addressing the consequences of xenophobic attacks, have been assessed, along with the environmental effects and human rights regime. this regime is pivotal in promoting and protecting human rights in south africa through government policies and regulatory frameworks. in this regard, the authors emphasised that there is no doubt that these well-thought-out suggestions, if well implemented by the international community and south african government, the issue of xenophobia and other human rights challenges will be addressed. also, the recommendations advanced in this article by the authors may provide better security and protection of human rights of non-nationals in south africa and protect lives and properties. countries whose nationals were victims of xenophobia will heap sigh of relief if the un sanctions south africa. the wanton killing and destruction of properties and business interests of foreign nationals in south africa will become a thing of the past. all hands must be on deck. these scornful and mournful incidences of xenophobic attacks must be dealt with decisively in whatever ways it demands by the international state actors. this is a time of proactive action, and no country should be left out of this campaign against xenophobia. with concerted efforts, xenophobic attacks will be eliminated in south africa and everywhere around the globe. in sum, the legal analysis above demonstrates that both the international community’s interpretations of the various human rights treaties and the south african constitution, which provide for human rights protection, have no direct or explicit support either in wording or in case law of the court, xenophobic attack on non-nationals references akinola, a.o (2018), “introduction: understanding xenophobia in africa”. advances in african economic, social and political development, in adeoye, o. o (ed) the political economy of xenophobia in africa, pp.1-7. https://doi.org/10.1007/9783-319-64897-2_1 bryan, b.a (2004), blacks law dictionary (9 ed.) united states of america: thompson reuters, p.809. durosomi, a (2019), “zambian hot fm banned the playing of south-african music”, sunday tribune newspaper, ibadan 5th september, p.6. du toit, l (2014), human rights discourse: friend and foes of african women’s sexual freedoms, 46 acta academy, 4, p.46-69. https://doi.org/10.1007/978-3-319-64897-2_1 https://doi.org/10.1007/978-3-319-64897-2_1 addressing the emerging issues of xenophobic attack and human rights violations in south africa: adopting a human rights-based approach the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 16 fagbadebo, o & ruffin, f (2018), “from hate to love: black south african and xenophobia project”. advances in african economic, social and political development in adeoye, o (ed.) the political economy of xenophobia in africa, pp.109-124. https://doi.org/10.1007/978-3-319-64897-2_9 gordon, s.l. (2017), subjective national well-being and xenophobia in sub-saharan africa: results and lessons from south africa. https://doi.org/10.1007/978-3319-55408-2_5 kaluba, a (2016), zambia: tackling xenophobia in zambia, times of zambia, p.5. keet, a (2010), human rights education: a conceptual analysissaarbrucken, germany: lambert academic publishers. knowles, d.r (2003), political philosophy in shand, j (ed.) fundamentals of philosophy, london: routledge, pp.326-50. tevera, d (2013), african migrants, xenophobia and urban violence in post-aparthied south africa. alternation, 9-26. international and regional treaties/conventions african charter on human and people’s rights 1981. constitution of south africa 1996. constitution of the federal republic of nigeria 1999 (as amended). united nations general assembly, convention against torture and other cruel, inhuman or degrading treatment or punishment, 10 december 1984, u.n.t.s, vol. 1465, p.85. convention on the elimination of all forms of discrimination against women (adopted by the unga in 1979). convention on the rights of the child 1989. human rights watch report 2020 united nations general assembly, convention on elimination of all forms of racial discrimination, 21 december 1965, u.n.t.s, vol.660, p. 195. international covenant on civil and political rights(adopted by the unga on 16th december 1966 and entered into force on 23rd march 1976). international covenant on economic, social and cultural rights(adopted by the unga on 16th december 1966 and entered into force on 3rd january 1976). universal declaration of human rights (adopted december 1948) case laws alhaji abibatu mogaji & ors v. board of customs and exercise & anor (1982)3nclr 552, 562. https://doi.org/10.1007/978-3-319-64897-2_9 https://doi.org/10.1007/978-3-319-55408-2_5 https://doi.org/10.1007/978-3-319-55408-2_5 hilary nwaechefu, nnawulezi uche, mary-ann o. ajayi & ogah chinyere constance the age of human rights journal, 21 (december 2023), e7806 issn: 2340-9592 doi: 10.17561/tahrj.v21.7806 17 fawehinmi v. sanni abacha & ors (1996)9nwlr (pt.475)710 (ca). ngomane v. city of johannesburg metropolitan municipality (2019)3 all sa (sga). s v. makwanyane (1995) zacc 3, 195 (6)bclr 665. newspaper reports “the xenophobic attack were targeted at non-white foreigners but directed at citizens of malawi, zambia, zimbabwe and nigeria as well as asian and arab nationals”. new telegraph (lagos 11th september 2019), p.25. “the vice-chancellor of the university of johannesburg professor tshilidzi marwala condemned the looting of shops and assault on foreigners”. the guardian (lagos 15th september 2019), p.15. iroanusi, e. q. “640 nigerians registered for a voluntary return home” guardian newspaper (lagos 10th september 2019). makhaya, e. “zambia football association cancelled the friendly match with south africa” available at: <https://www.pulse.com.gh> nuhu, s. “president muhamadu buhari sentan envoy to south african president cyril ramaphosa reminding him of international responsibility of protecting lives and properties of foreigners living in his country” (lagos, 4th september, 2019), p.5. received: 4th march 2023 accepted: 21st june 2023 https://www.pulse.com.gh addressing the emerging issues of xenophobic attack and human rights violations in south africa: a abstract 1. introduction 2. overview of concepts defining xenophobia, human rights and fundamental rights 2.1. history of xenophobic attack in south africa 2.2. south africa and human rights protection under its constitution 2.3. reasons adduced for xenophobic attacks 2.4. efforts by the south african authority to curb xenophobic attacks 2.5. six things south africa has suffered due to xenophobia 3. conclusion references international and regional treaties/conventions newspaper reports protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 1 protecting vietnam’s sovereignty in cyberspace: insights from human right laws vu thi anh thu1,2 abstract: in order to protect state sovereignty in cyberspace, vietnamese law has placed restrictions on the right to online free expression. using qualitative and empirical methods, this article examines the necessity and proportionality of these restrictions. the article finds that the language of a number of restrictive provisions appears to be more political than legal. the second reason is that vague and expansive laws may make it difficult to determine the true extent of damage in criminal prosecutions involving online expression that undermine state sovereignty. it would violate articles 19 and 20 of the international covenant on civil and political rights. to surmount this opposition, vietnamese lawmakers must provide a comprehensive interpretation of the relevant laws to ensure that the freedom of online expression is vitally important but must be balanced with the national interest. keywords: sovereignty, human rights, freedom of expression, cyberspace, cybersecurity, vietnam. summary: 1. introduction. 2. conceptualizing cyber sovereignty. 3. conceptualizing online human rights. 4. legal ground of protection of the right of freedom of expression. 5. imposing the restrictions on freedom of expression in cyberspace under vietnamese laws. 6. legal ground for handling violations related to freedom of expression in cyberspace in vietnam. 7. conclusion. 1. introduction the expansion of the internet has facilitated cross-border communication between nations, communities, and individuals. information is a crucial communication medium. the internet provides instantaneous information transfer, enabling consumers to access information from any location at any time (коровин b. 2017:79). due to the unique characteristics of the internet, however, misinformation and disinformation, political hate speech3, and violent incitement against the state are more likely to spread online and present challenges to state control. 1 phd of international studies, vice dean of faculty of international studies, vnu-university of social sciences and humanities, vietnam national university, hanoi (e-mail: vuanhthu@ussh.edu.vn) 2 this article has been written as part of a research project “ensuring sovereignty in cyberspace under the international laws”. the author would like to thank vietnam national university, hanoi for funding project qg19.32. 3 the council of europe’s recommendation (1997) covers the internationally accepted definition of “hate speech,” which shall be understood as “covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-semitism or other forms of hatred based on intolerance.” subsequently, mutlu binark and tuğrul çomu (2012) defined political hate speech as “targeting a certain political opinion and its followers. it may sometimes target an ideology as a whole, only one or a few political parties, or even smaller groups”. mailto:vuanhthu@ussh.edu.vn protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 2 as soon as negative information is disseminated, it is just as pernicious as cyberattacks against the sovereignty and cybersecurity of a state. every internet user has the potential to become a social media news author or commentator. unchecked information sharing can result in the intentional or inadvertent dissemination of false information about a political event or the domestic or foreign policies of a government. internet users band together as couriers in a network that коровин b. (2017) suggests includes social organizations, foundations, non-governmental organizations, movements, and political parties, regardless of whether they are self-interested. he believed that the “information society was an appropriate setting for establishing, operating, and utilizing networks. networks operate in all environments and are not metaphors. they are an objective reality of contemporary culture.” (коровин v. 2017:111-112). the mission of the network is to be able to transmit all but a few signals that can be received, transmitted further on the network, and eventually transformed into actions by what коровин b. termed “network warfare,” which he defined as “the set of activities designed to shape the behavior of neutral forces, allies, and adversaries in times of peace, crisis, and war.” (коровин 2017:116). unrestrained, malevolent information flows would endanger national autonomy and sovereignty. in addition, betz and stevens (2011:69–70) argued that “terrorist use of the internet as a means of propaganda is a classic case where the state is unable to control what passes its borders. governments have attempted to restore control by removing videos with terrorist content from the web”. terrorist organizations, adversaries, and anti-state groups can abuse the internet and social media in conjunction with “effect-based operation” technology to inform thousands of internet users of their plans to attack a specific state. online calls for protests and collective action sparked a number of significant events, such as the “rose revolution” in georgia in 2003, the “orange revolution” in ukraine in 2004, the riots in tunisia that sparked the “arab spring” in egypt in 2011, and the domino effect that toppled totalitarian governments in several north african and middle eastern nations, including iraq, syria, and yemen. according to philip howard and muzammil hussain (2011:35–48), “digital media technology has not only stimulated widespread protests in egypt but also produced a distinctive kind of mass organizing that is repeated across the region”. even more damaging is the manipulation of global media coverage by digital media, which has enticed foreign governments or government opposition movements to intervene in state affairs. disgruntled or xenophobic people at home and abroad can attack any authoritarian or democratic state via the internet and social media. every year, hackers attack thousands of e-information portals, websites run by governmental organizations, local governments, and large corporations, as well as electronic newspapers in vietnam4, seizing control, changing the user interface, editing the content, or causing stalls and disruptions. even hostile forces have cyberspace-directed interconnected activities to carry out terrorist missions in a number of major cities. hostile 4 in the first six months of 2021, the high-tech cyber security and crime prevention office detected 1,555 vietnamese websites (.vn) that were attacked by hackers, inserting messages, including 412 pages managed by state agencies (c nguyen and q nguyen 2022). vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 3 forces abroad encourage a large number of people in the country to post fabricated and distorted articles on social networking sites. they employ sophisticated propaganda techniques and incorporate articles that challenge authorities or direct demonstrations, as well as how to interact with security agencies. they broadcast audio and images of demonstrations online in order to attract, provoke, and gather forces in both cyberspace and the real world for the purpose of mental terrorism and generating public opinion in the network community in order to serve malicious purposes that harm politics, order, and social security (tran d.q. 2015). apparently, state security and sovereignty are more at risk than ever before. states are cognizant of the online threats posed by violent language. they are willing to take the necessary technical measures to censor and filter information on social media, as well as to prevent and block extreme expressions deemed offensive. inversely, the competent authority’s arbitrary, non-selective prevention and treatment efforts may contravene the right to free expression of internet users. threats to sovereignty and security in cyberspace are mentioned in several research papers. in the article ‘cyberspace sovereignty? the internet and the international system’, tim wu (1997) examined access to national cyberspaces and the authority of nations to issue legal regulations governing the internet and cyberspace. according to the author, cyberspace can be regarded institutionally through a realism lens. when the international system resembles a community of states, state sovereignty over cyberspace is severely constrained and determined by state-level collective interests. this is inadmissible. consequently, the author analyzes the extent of the state’s cyberspace rights according to liberal theory. individuals and then nations have “minimal sovereignty” over cyberspace, the authors conclude, because they have access to it first. in the article titled “state sovereignty and self-defense in cyberspace: a normative framework for balancing legal rights,” lotrionte c. (2012) posed the question: can a state use force to defend itself against cyberattacks by non-state actors residing in a different country? can the use of force by the infringing state be justified under international law? the author argues that the jus ad bellum principle should be carefully reviewed by states in order to reach a consensus on how to interpret the use of force to ensure peace and security, and whether a cyberattack should be considered a military attack so that a state can use the principle of force in self-defense. evidently, states are aware of the threat that adversarial expression and incitement to anti-state violence pose on the internet and in digital media. states are willing to employ the technical measures they deem necessary to censor and screen news in digital media in order to prevent the anti-state effects of free expression they perceive to exist in cyberspace. however, states must also anticipate the consequences of their stringent, non-selective precautions and prevention measures, which could potentially restrict the freedom of expression of the vast majority of network users. how to maintain a balance between the protection of state sovereignty and the exercise of the right to freedom of expression by internet users in cyberspace is the subject protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 4 of this article. can states with supreme authority impose stringent technical and legal restrictions to protect their state sovereignty while ignoring online human rights? using qualitative and empirical methods, this article examines the necessity and proportionality of restrictive measures imposed on human rights by vietnamese law under the pretext of protecting state sovereignty in cyberspace. the article begins by analyzing the concept of state sovereignty in cyberspace and, in particular, the right to free expression on social media platforms. referring to articles 19 and 20 of the international covenant on civil and political rights (iccpr), the article then analyzes the legal basis upon which vietnam can impose restrictions on freedom of expression. the article further examines two criminal cases judged by vietnamese courts in response to the question of how to evaluate the appropriate degree of restrictive measures applicable to freedom of expression online on the grounds of protecting state sovereignty in cyberspace. the article asserts that there are threats to sovereignty and violent calls to overthrow the vietnamese government on social media. however, the content of certain prohibitive provisions of vietnamese law appears to be more political than legal. to this extent, vietnamese law is ambiguous and general. political hate speech and violent incitement speech might make it challenging to evaluate the actual harm they cause. the conclusion of the article is that the vietnamese legislature has adopted the iccpr provisions on human rights restrictions. however, further interpretation of the relevant regulations is required to strike a balance between the protection of state sovereignty in cyberspace and the promotion of freedom of expression online. 2. conceptualizing cyber sovereignty sovereignty is one of the state’s inseparable political-legal characteristics that has been acknowledged over the centuries. the word “sovereignty” comes from the french “souveraineté” and the old latin superanitas, suprema potestas, or superus, all of which mean “supreme power” (nico schrijver 1999: 65; britannica 2020). when discussing the concept of state sovereignty in cyberspace, it is becoming a heated topic of never-ending debate among academics from the perspectives of international law and international relations in the context of globalization, and the impact of the fourth industrial revolution. the interdependent sovereignty or conditional sovereignty view in the context of globalization under the influence of globalization, the supreme and exclusive nature of state sovereignty from the perspectives of absolute sovereignty (advocated by bodin j. (edward a. 2011), machiavelli n. (1532), and hobber t. (1651)) and independent sovereignty (represented by rousseau (1944)) is shifting. this fact demonstrates that states actively participate in the globalization process and are subject to the universal standards and norms established by international and intergovernmental organizations such as the united nations, the world trade organization, and the international monetary fund. it indicates that they voluntarily restrict the scope of their authority. international action programs increasingly influence and impact domestic policies. states are answerable to their citizens and the international community for their vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 5 domestic and international actions that violate human rights or are likely to do so. although the principle of non-interference in the internal affairs of states, enshrined in paragraph 7 of article 2 of the 1945 united nations charter remains valid as long as states exercise their sovereign rights, it does not permit states to act unilaterally and disregard international obligations. the influence of globalization on the exercise of sovereign rights has modified the scope of state jurisdiction and control over domestic and international affairs, but globalization does not create new methods to restructure the power of states. this, however, cannot eliminate state sovereignty, namely national self-determination and respect for the principle of non-interference in the internal affairs of states. therefore, the scope and application of state jurisdiction and control are voluntarily determined when states participate in international treaties. elizabeth and ozioko (2011:256) addressed the fact that “states are free to endorse any contract they find attractive. any treaty among states is legitimate, provided that it has not been coerced. this is the new strength of sovereignty.” state sovereignty under the impact of the information technology revolution with the influence of the information technology transformation, globalization accelerates the international integration of states, particularly those with rapid internet and telecommunications infrastructure development. in addition to the physical world, the internet and the information technology revolution have created a virtual world that attracts numerous participants. this virtual world is known as “cyberspace”; it can connect people from anywhere in the world at any time and has brought numerous socioeconomic and cultural benefits to humanity. when criminals and adversaries take advantage of anonymity to commit illegal acts and even imperil state sovereignty and security in cyberspace, anonymity poses significant challenges and risks. there are many ways to understand the concept of “cyberspace”. dyson e., et al. (1994:295) defined cyberspace as “more ecosystem than machine, cyberspace is a bioelectronic environment that is literally universal: it exists everywhere there are telephone wires, coaxial cables, fiber-optic lines or electromagnetic waves.” the u.s. department of defense also defined cyberspace as “a global domain within the information environment consisting of the interdependent network of information technology infrastructures and resident data, including the internet, telecommunications networks, computer systems, and embedded processors and controllers” (office of the chairman of the joint chiefs of staff, 2021:55). according to the above definitions, cyberspace is a virtual environment that is shaped and founded on the physical characteristics of an interconnected system of electro electromagnetic apparatus under the state’s ownership and control. hathaway m. et al. (2016:8) further emphasized the social interaction between users in cyberspace, stating that “cyberspace is more than the internet, including not only hardware, software, and information systems, but also people and social interaction within these networks.” the international organization for standardization (iso) and the international electrotechnical commission (iec) also mention the formation of cyberspace through the interaction protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 6 of users with the support of information technology, as it is “the complex environment resulting from the interaction of people, software, and services on the internet by means of technology devices and networks connected to it, which does not exist in any physical form” (2012). the 2018 cybersecurity law of vietnam (loc) also takes a broader view, not only from a technical perspective but also from a social connection perspective: art.3.2: “cyberspace is the connected network of information technology [it] infrastructure comprising telecom networks, the internet, computer networks, information systems, information processing and control systems, and databases, where [being the environment in which] people perform social acts without being constrained by space and time.” (vn national assembly 2018) in such a networked environment, information is regarded as the center of the electronic transmission process and constitutes the information society. in order to reflect the state’s influence in international relations and ensure national security in cyberspace, information is an essential asset. due to the trans-spatial and trans-temporal character of information convergence on the internet, there are ongoing discussions regarding state control over information flows and electronic transactions in cyberspace. there are various perspectives on the exercise of state sovereignty in cyberspace or the degree to which cyberspace depends on state sovereignty. in this regard, policymakers, researchers, and technology firms have not yet reached a consensus. views on the independence of cyberspace in relation to state sovereignty the work titled “a declaration of the independence of cyberspace” written by barlow j. (2019:5-7) served as a representation of this viewpoint. he asserted that cyberspace is “the new home of mind” and “civilization of the mind in cyberspace,” thereby establishing a new, non-sovereign community. there is no authority for the state to impose laws and enforcement measures. he emphasized that despite the fact that governments can construct and create tools to facilitate social interaction in cyberspace, they are not welcome in a social space that is so globally accessible. cyberspace and state sovereignty were therefore distinct from one another. barlow j. believed that in this anonymous world, users could freely express their opinions without government restrictions, coercion, threats, or punishments. cyberspace’s autonomous and non-physical nature has allowed internet users’ thoughts and actions to transcend territorial boundaries, which is a defining characteristic of state sovereignty. views on the relationship between state sovereignty and cyberspace numerous governments and experts in international law have disagreed with john barlow’s position that cyberspace should not be subject to state sovereignty. this fact demonstrates an increase in cross-border cyberattacks aimed at vital national technical infrastructure and computer systems. even a foreign state can use the virtual world to interfere in the internal affairs of other states, which is considered an invasion of national sovereignty and security. therefore, the assaulted state is permitted to employ technical, vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 7 military, and legal means to prevent and stop cyberattacks. moreover, if the dissemination of malicious code or the use of armed force in cyberspace threatens international peace and security, the countries need to come together to develop international laws and codes of conduct to prevent transnational cyberattacks. following is a discussion of the two connections between sovereignty and cyberspace. first, there are the relationships between cyberspace and sovereignty. betz d. and stevens t. (2011:55–60) argued that under article 2 of the un charter, political entities in the international relations system are recognized as equal in terms of sovereignty, so cyberspace should also be regarded as a sovereign entity within this system. cyberspace has a de facto legal status as a global space that transcends traditional sovereignty as a result of the blurring of territorial boundaries caused by cross-border information flows. in light of this, the authors proposed that states should respect “emerging cyber sovereignty”. in reality, many states have never desired to relinquish their sovereign rights over cyberspace under their authority, so they have not adopted this proposal. in addition, no nation has acknowledged cyberspace as an autonomous entity with independent legal status that functions as a “representative voice” on par with sovereign nations. second, there is the relationship between domestic sovereignty and cyberspace. states have absolute sovereignty over the cyber infrastructure on their own territory. individuals and organizations conducting operations within this cyber infrastructure fall under the jurisdiction of the host nation. on the basis of preserving state sovereignty and security, the state has the authority to exercise its absolute sovereignty in monitoring cyberspace activities and responding to cyber security violations (liaropoulos a. 2013:19). states can establish territorial sovereignty over land, airspace, sea, and islands5 within a specific geographical boundary. cyberspace, on the other hand, is not a natural environment because it was created by humans and exists alongside physical objects. numerous states have acknowledged cyberspace as the “fifth domain” subject to their jurisdiction and supervision, as well as the preservation of their security and interests. they are able to take protective measures to prevent and respond to cyberattacks, regardless of whether they originate from within or outside their territory. chinese president xi jinping stated at the second world internet conference in wuzhen in 2015 that “cyber sovereignty is critical to national sovereignty” (xinhua 2016). according to rule 1 of the tallinn manual 2.0 (schmitt m. 2017:11) “states enjoy sovereignty over any cyber infrastructure located on their territory and activities associated with that cyber infrastructure…. in certain 5 for example, article 1 of vietnam’s 2013 constitution states, “the socialist republic of vietnam is an independent, sovereign, and united nation whose territorial integrity includes its mainland, islands, territorial waters, and airspace” (vn national assembly 2013). protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 8 circumstances, states may also exercise sovereign prerogatives such as jurisdiction over cyber infrastructure and activities abroad, as well as over certain persons engaged in those activities.” resolution 73/266 of the united nations general assembly (2018:para5-6) also emphasized that “states have the primary responsibility for maintaining a secure and peaceful information and communications technology environment”. nonetheless, the resolution expressed concern that “technologies and means can potentially be used for purposes that are inconsistent with the objectives of maintaining international stability and security and may affect the integrity of the infrastructure of states, to the detriment of their security in both civil and military fields”. it appears that each state asserts sovereignty in cyberspace to varying degrees and uses its legislative, executive, and judicial powers to enact laws governing information security and safety, manage and monitor activities in cyberspace, and impose administrative or criminal penalties for violations. in contrast, a state that employs violent or non-violent means to attack the essential information infrastructure systems or critical economic and social facilities of another state is viewed as a threat to the latter’s national security and sovereignty. consequently, the preservation of the cyber infrastructure network is an essential activity for safeguarding cyberspace state sovereignty. according to the new york times (2009), the president of the united states, barack obama, stated that “our digital infrastructure -the networks and computers we depend on every day -will be treated as a strategic national asset”. protecting this infrastructure will be a top priority for national security. the analysis presented above demonstrates that the protection of state sovereignty in cyberspace can be viewed from two perspectives: first, cyberspace is considered a “fifth domain”, in which a state exercises its sovereignty authority through measures recognized or regulated by international and national law. second, cyberspace is treated as a unique virtual environment with features that have a profound impact on the protection of state sovereignty over traditional territories. therefore, legal measures are required to prevent and punish cyberspace abuses that violate the sovereignty and security of other states. the international telecommunication union (itu 2010) defines “cybersecurity is the collection of tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurance, and technologies that can be used to protect the cyber environment and the organization’s and user’s assets”. in short, cyberspace is a connected, flexible, and open virtual space that is unrestricted by physical borders between states. states have the sovereign authority to control and protect their territories against intrusion, occupation, and expropriation of the information spheres under their jurisdiction (tran d.q. 2015). the fact, however, demonstrates that the state is not the only entity that governs cyberspace; any individual or organization may participate and establish its own space through a website, vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 9 blog, or facebook account. reality has demonstrated that anyone can construct a “virtual living space” in the cyber environment, and internet users can actively engage in political, social, and e-commerce forums. their words or actions can have uncontrollable positive or negative consequences in both the virtual and physical realms. legislators agree, from the standpoint of national security, that states can impose restrictions to prevent non-state actors from perpetrating acts that threaten or violate state sovereignty in both physical and cyber spaces. however, there are still debates regarding the legality, necessity, and proportionality of these restrictions on human rights in cyberspace in order to defend state sovereignty and cybersecurity. this article raises the question of whether legal measures taken by a state to defend its sovereignty affect or violate the human rights of internet users in cyberspace. the analysis that follows explains, first, the concept of human rights online, specifically the right to free speech in cyberspace, and, second, preservation of state sovereignty under human rights laws. 3. conceptualizing online human rights humans are the primary protagonists in the creation and operation of cyberspace, specifically the social media channels that enable individuals to participate and interact. any individual can play a pivotal role in establishing and disseminating information and knowledge, which is the basis for a thriving, accessible information society. in addition, it is a forum that allows people to participate regardless of their nationality, ethnicity, gender, race, or political orientation so that they can discuss political, economic, cultural, and social issues, etc. the number of individuals using the internet and social media has increased each year since internet access became ubiquitous. interactions and connections between users in cyberspace have both positive and negative effects on national and human security in the physical world. in terms of national security, it has been demonstrated that states and top leaders are most susceptible to attack by statements and posts on social media and blogs containing disinformation or political hate speech that calls for the overthrow of governments or violates the dignity of communities, states, and leaders. governments are aware of the critical need to reduce and prevent online political hate speech and violent incitement against them. regarding human rights, hamelink c. (2017) noted that an increasing reliance on vulnerable and error-prone digital systems is also causing cyberspace-related social risks to human security. the “cyberization” of daily life, which reinforces current tendencies toward high-speed, robot-centric societies, is also a risk factor; therefore, freedom in cyberspace must also be protected. his claim recalled the assertion of the un human rights council (2012) that “the same rights that people have offline must also be protected online”. the same rights mean “the right to freedom of opinion and expression that includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers” as indicated in articles 19 of the udhr and iccpr. particularly, the un human rights council emphasized how useful the internet is for enforcing freedom of expression and other human rights and it decided: protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 10 “[t]o continue its consideration of the promotion, protection, and enjoyment of human rights, including the right to freedom of expression, on the internet and in other technologies, as well as how the internet can be an important tool for development and for exercising human rights, in accordance with its program of work” (un human rights council 2012:para5). big technology companies, social media on one side, and law enforcement state agencies on the other side, argue intensely over the right to freedom of expression in cyberspace. social media platforms are currently being exploited to promote extremism and intolerance. each state has the authority to issue legislation governing the right to free expression and cybersecurity. the challenge that states face is how to strike a balance between the preservation of individual freedom of expression and the maintenance of state sovereignty and national security in cyberspace in the face of disinformation and malinformation that threaten to topple governments. vietnam is not immune to the issue. in response to worries about the negative impact of the internet and social media on politics, national security, and social order, the nation has passed a series of laws that limit the abuse of freedom of expression. the following sections look at the legal limitations on free expression put in place to safeguard cybersecurity and state sovereignty. the comparable framework to existing vietnamese laws is one of the two criteria for determining the necessity and proportionality of the restrictive measures outlined in articles 19 and 20 of the iccpr. 4. legal ground for protection of the right to freedom of expression in vietnam before vietnam officially joined the united nations in 1997 and became a member of the iccpr in 1982, the right to freedom of expression was enshrined in the first constitution of the democratic republic of vietnam in 1946 and repeated in subsequent constitutions promulgated in 1959, 1980, and 1992. the most inclusive provision is article 25 of the 2013 constitution (as amended by the 1992 constitution), which states that “citizens have the right to freedom of expression and freedom of the press, as well as access to information, the right to assembly, the right to association, and the right to demonstrate. the exercise of these rights will be governed by laws.” (vn national assembly 2014). the 2016 press law defines freedom of expression specifically as the right to hold opinions, and article 11 provides a list of topics on which individuals have the right to express themselves: “[t]o expression of their opinion on domestic and international affairs; to contribution of opinions on the formulation and implementation of the lines, guidelines, and policies of the party and laws of the state; and to contribution of opinions, criticisms, recommendations, and complaints and vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 11 denunciations through the press to party organizations, state agencies ... other organizations, and individuals”. this provision concentrates more narrowly on the right to freedom of expression without incorporating three other aspects of the right “to seek, receive and impart information and ideas through any media and regardless of frontiers” as stated in article 19 of the universal declaration of human rights (‘udhr’) (un human rights 1949). vietnam promulgated the 2016 law on access to information to completely realize the meaning of article 19 of the udhr. people have the right to access information, unless it must be kept secret to safeguard national defense and security, social order and safety, social ethics, and public health. state agencies and related organizations are responsible for providing information to citizens upon request in a timely, transparent, and accessible manner, in accordance with the procedures outlined by the laws. the right to access information will assist citizens in gaining a greater understanding of domestic affairs, allowing them to express their opinions objectively and thoroughly on matters of concern. the relationship between the right to information and the right to freedom of expression increases the value of the latter because citizens have access to political news and can participate in political discourse. when vietnam wishes to perfect the socialist rule of law state, this is the foundation for promoting democratic processes and institutions. the free internet access policy allows vietnamese citizens to create private blogs and sign up for social networking accounts in order to interact with the rest of the world. as of july 2022, napoleoncat (2022) data indicated that there were 84,919,500 facebook users in vietnam (representing approximately 83% of the population). the vast majority of social interactions and public voices can be found on this social media platform. moreover, there are a large number of users on linkedin, instagram, messenger, etc. in addition, vietnamese law does not mandate that individuals use their names when creating websites or blogs. the privacy of individuals is protected and respected, with the exception of situations in which a competent state agency requests a social networking service provider to disclose the personal information of users who are engaged in unlawful, terroristic, or criminal activity (the government of vietnam 2023). article 26 of decree 72 stipulates that individuals who utilize their website are free to disclose any information and are exclusively responsible for its content (the government of vietnam 2013). it confirms that vietnamese regulations provide citizens with unrestricted internet access and the freedom to sign up for either domestic or international social networking services without permission6. however, article 26 of decree 72 allows vietnamese authorities to block pages that encourage and incite acts of war and violence against the state and the communist party, or that divide national solidarity, disseminate pornographic content, or insult the honor and dignity of the country’s leaders and individuals (the government of vietnam 2013). 6 according to vietnam’s human rights report for the third iccpr in 2017, individuals can access 75 online foreign tv channels such as cnn, bbc, voa and ap [section 184]. protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 12 5. imposing restrictions on online freedom of expression under vietnamese law human rights in general and freedom of expression in particular are not exclusive rights; they may be restricted by law if necessary. article 14 of the 2013 constitution stipulates that “human rights and citizen rights may be limited as prescribed by a law in case of necessity for reasons of national defense and security, social order and safety, social morality, and community well-being.” in addition, article 15 of the 2013 constitution stipulates that “the exercise of human rights and citizen rights may not infringe upon state interests or the lawful rights and interests of others” (vn national assembly 2014). article 8 of the 2018 cybersecurity law prohibits acts related to expression in cyberspace and provides legal sanctions applicable to threats to national security and social order based on constitutional restrictions. particularly, article 8 prohibits deceiving, manipulating, training, or drilling people to break up the state, distorting national history, denying national revolutionary achievements, dividing national solidarity, committing offenses against religion, gender discrimination, or racist acts, disseminating false or misleading information for the purpose of gaslighting the people, or causing damage to the socio-economic system (vn general assembly 2018). next, article 16 of the 2018 cybersecurity law (vn general assembly 2018) specifies in greater detail the prohibited content that internet service providers, social network service providers, and competent state agencies are authorized to prevent and handle, including: (i) information containing propaganda against the government. for example, distortion or defamation of the government; psychological warfare; inciting an invasive war; causing division or hatred between ethnic groups, religions, and people of all countries; insulting the vietnamese people, the national flag and emblem, anthem, leaders, and national heroes; (ii) information with content that incites rioting, disrupts security, or causes public disorder, such as calling for, mobilizing, inciting, threatening, or causing division, conducting armed activities, or using violence to oppose the administrative authorities of the people; (iii) the dissemination of information that demeans, smears, or degrades the honor, reputation, and dignity of others. for example, providing fabricated and false information that violates the honor, reputation, and dignity of others, as well as the rights and legitimate interests of other organizations and people; and (iv) information containing content that violates economic management orders. for instance, providing fabricated and false information about products, commodities, currency, … causing harm to socioeconomic activities by gaslighting the public. article 9 of the 2018 cybersecurity law stipulates that users who violate vietnam’s cybersecurity law are subject to administrative and criminal penalties. in contrast, it vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 13 prohibits government agencies from blocking information in cyberspace if internet users do not violate the stipulations (vn general assembly 2018). the question is whether the justifications for the prohibition of the right to freedom of expression in cyberspace under vietnamese law are compatible with paragraph 3 of articles 19 and 20 of the iccpr (un general assembly 1966). the solution is provided in the analysis below. regarding freedom of expression in a liberal society, fish s. (1994) argued that there is no such thing as “free speech”. these words are merely terms used to draw attention to a specific form of human interaction. they do not imply that speech should never be restricted. the viewpoint of fish s. is a reaffirmation of the limitations imposed on freedom of expression in article 19 (3) of the iccpr, which states: “the exercise of the rights .... entails special duties and responsibilities. therefore, it may be subject to certain restrictions, but only those prescribed by law and necessary: (a) for the protection of the rights and reputations of others; (b) for the protection of national security, public order, or public health” (un general assembly 1966). evidently, the iccpr authorizes states to impose restrictions on freedom of expression for the legitimate purposes of protecting “the rights or reputations of others” or “national security, public order, public health, and morals”. article 20 of the iccpr also prohibits citizens from engaging in “propaganda for war or advocacy of national, racial, or religious hatred, incitement to discrimination, hostility, or violence.” (un general assembly 1966). subsequently, general comment no. 34 of the un human rights committee specifies three conditions for determining whether state-imposed restrictions comply with articles 19 and 20 of the iccpr, based on the iccpr’s fundamental provisions. first, “the restriction must be provided by law which may “include laws of parliamentary privilege” and “laws of contempt of court”; second, “the legitimate grounds for restriction is that of respect for the rights or reputations of others (which relates to other persons individually or members of a community) and of protection of national security or of public order, or of public health or moral”; and third, “the restriction must be necessary and proportionate by addressing a direct connection between expression and the threats to national security, public order, public health or morals; and rights and reputations of others” (un human rights committee 2011:paras24-29-33). the enactment of restrictive or prohibitive regulations on the right to freedom of expression requires legitimate reasons to explain the correlation between the necessity of restrictive or prohibitive measures and the threat level and potential for harm that utterances pose to an object or person. therefore, empowering states to impose restrictions on the right to freedom of expression simultaneously entails their responsibility and accountability for determining which expressions and behaviors are deemed menacing and harmful. all prohibited speech and conduct must be specified in the laws. the iccpr requires states protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 14 to “ensure that the invocation of national security, including counterterrorism, is not used arbitrarily or unjustifiably to restrict the right to freedom of opinion and expression” (un human rights council 2009:para5). with reference to articles 8 and 16 of the 2018 cybersecurity law, vietnam relies on two approaches comparable to european legislative methods to prescribe restrictions on human rights. the first is the approach of exclusion from the protection of the law, including the prohibited acts in cyberspace specified in article 8. the second is to impose restrictions on the contents of expression, including harmful information that should be prevented and dealt with under article 16. clearly, the national assembly enacted the 2018 cybersecurity law prohibiting conduct in cyberspace that satisfies the first requirement of general comment no. 34. assessing the legitimate grounds for restrictions in vietnamese law as outlined in the second condition of general comment no. 34, it is evident that article 15 of the 2013 constitution covers the obligation of citizens with regard to freedom of expression. the 2018 cybersecurity law also meets this requirement. particularly, restrictions may be imposed on a citizen if the competent authority can demonstrate that an internet user compromises the rights and interests of the state and other individuals. concerning the necessity and proportionality of restrictions on freedom of expression in cyberspace indicated in the third condition of general comment no. 34, it is evident that the 2017 criminal code (vn national assembly 2017) provides two distinct provisions that should be applied to a suitable case. article 117 may apply to serious violations of freedom of expression. a user of the internet may, for instance, utilize social media or websites to distribute and propagate anti-state information and materials. in contrast, article 331 applies if an internet user abuses freedom of expression and other democratic freedoms to violate the interests of the state and the legitimate rights and interests of others without intending to oppose the state. the issue at hand is whether the criminal sanctions imposed for violations of expression under articles 117 and 331 can be evaluated as “proportionality,” as described in general comment no. 34. as cianciardo j. stated, many constitutional courts, whether common law or civil law, apply the principles of proportionality “as a procedure that aims to guarantee the full respect of human rights (or fundamental rights) by the state.” (2010:177). he claimed that “the principles of reasonableness” in the doctrine of the united states supreme court, “reasonable justification” in the federal supreme court of switzerland, or the standards of “non-arbitrariness” in the german constitutional court are all examples of proportionality (2010:178). the conceptual intersection of the justificative distinctions is that proportionality consists of three sub-principles: sufficiency, necessity, and proportionality in the restricted sense. in contrast, the french legal system views them as a “balance between costs and benefits” (cianciardo j. 2010:180). in stc 66/195157, 7 constitutional court of spain. case of ecli:es:ts 195:66, judgment of may 8, 1995, para. 5. available at: http://hj.tribunalconstitucional.es/es-es/resolucion/show/2920 (accessed 10 june 2022). http://hj.tribunalconstitucional.es/es-es/resolucion/show/2920 vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 15 a judge of the spanish constitutional court upheld that a restriction of a right is “proportionate, in the strict sense, that is weighted or balanced because it derived from benefits or advantages for the general interest than harm to other goods or values in conflict,” thereby supporting france’s position. similarly, the inter-american commission on human rights explained: “[o]n evaluating the proportionality of a restriction to freedom of expression on the internet, one must weigh the impact that the restriction could have on the internet’s ability to guarantee and promote freedom of expression against the benefits that the restriction would have in protecting the interests of others” (2013:para54). with reference to this explanation, the 2018 cybersecurity law of vietnam satisfies the first sub principle of “adequacy” from the perspective of common law system judges. the legislators feel that with the help of the law’s restrictive measures, the objective of protecting state sovereignty and security, public order, and the legitimate rights and interests of others can be attained. in addition, article 5 of the 2018 cybersecurity law specifies a variety of applicable measures for protecting cybersecurity and state sovereignty against violations. state authorities can, for instance, block, suspend, or terminate cyber connections or delete prohibited data. in addition, they have the ability to initiate, investigate, prosecute, and adjudicate administrative or criminal cases in cyberspace (vn national assembly 2018). this article responds explicitly to the second sub-principle of “necessary” regarding whether the implementation of restrictive measures aids lawmakers in achieving their intended objectives. in short, state authorities must provide “reasonable justification” for the proportionality of a sanction. the choice between administrative or criminal punishment for a violation must be based on the motivation and severity of the violation’s consequences. this topic is examined in greater depth in the subsequent section. this article examines the provisions of vietnamese law regarding restrictions on freedom of expression in cyberspace from the perspective of the civil law system. similar to the preceding explanation, the 2018 cybersecurity law clarifies the meaning of the terms “general interests” or “other interests” mandated by law to protect three described targets as outlined in article 19 (2) of the iccpr. first, it serves the interests of the state. state sovereignty and security are the main justifiable goals that states cite for preventing political hate speech and incitement to riots or terrorism. as previously discussed, clause 2 of article 14 of the 2013 constitution states that “human rights and citizen rights may be restricted when necessary for national defense and security” (vn national assembly 2014). in the context of cyberspace, cybersecurity protection ensures state sovereignty. cybersecurity is defined in article 3 of the 2018 protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 16 cybersecurity law as “the assurance that activities in cyberspace will not harm national security, social order and safety, or the legal rights and interests of agencies, organizations, and individuals” (vn national assembly 2018). therefore, the acts and content specified in articles 8 and 16 of the 2018 cybersecurity law are viewed as hazards to state interests and must be restricted or prohibited. according to the siracusa principles on the limitations and derogation provisions in the iccpr, “national security may only be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation, its territorial integrity, or its political independence against the use of force or the threat of force” (un 1984). specifically, principle 2(a) of the johannesburg principles provides a more detailed explanation of the protection of national security interests with respect to the restrictions on freedom of expression mentioned in article 19(2) of the iccpr. that is: “[a] restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to the use or threat of force, such as incitement to violent overthrow of the government” (un 1996). clearly, the restrictive provisions of vietnamese law are consistent with the interpretation of general comment no. 34 and other relevant international instruments. second, it serves the public good. consequently, the law must protect the public order, public health, morality, rights, and reputation of others. the proliferation of hate speech and libel on social networks has eroded the social foundations of national cultural values and community cohesion. as a result of empathizing with the targeted individual, there is a potential for social instability and evil. article 16 of the 2018 cybersecurity law thus already specifies the prohibited content in cyberspace. third, it is in the economy’s interest. the 2018 cybersecurity law mandates the avoidance and elimination of disinformation that may threaten the economic safety and security of the financial and banking sectors, commerce, and securities. according to clause 2 of article 19 of the iccpr, commercial disinformation is not restricted. however, the united states and the european union limit the right to free speech by prohibiting “commercial speech that is false, misleading, or promotes an illegal product or service.” even if it falls in none of these categories, the government may regulate it more than it may regulate fully protected speech” (ruan a.k 2014). theoretically, legal restrictions on the right to free expression in cyberspace are required to balance public and private interests in a given circumstance. in practice, however, a state must demonstrate that “there is a pressing social need for it, that it pursues a legitimate aim, and that it is the least restrictive means of achieving that aim” and that “when a state party imposes restrictions on the exercise of freedom of expression, vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 17 these may not put the right itself at risk” (interamerican commission on human rights 2013:para21). in general, vietnamese laws do not strictly forbid hate speech if they do not contain phrases that call for bloodshed, plot to overthrow the government, disturb social order, or undermine national unity; defame others’ honor; unlawfully endanger their safety; discriminate on the basis of gender or race; or threaten economic security. the general political, religious, or social comments or criticisms of the corruption are neither threatening nor destructive, are not viewed as inciting enmity or violence, and are not illegal. the provisions on the application of technical and legal measures to restrict freedom of expression in cyberspace are consistent with general comment no. 34 and both the common law and civil law systems from a theoretical human rights perspective. article 4 (2) of the 2018 cybersecurity law emphasizes the “close combination of tasks for protecting cybersecurity and information systems critical for national security with tasks for socio-economic development, providing human rights and civil rights, and enabling agencies, organizations, and individuals to conduct activities in cyberspace”. 6. legal ground for handling violations for online freedom of expression in vietnam the 2018 cybersecurity law specifies two categories of technical and legal measures for dealing with illegal acts and information that threaten vietnam’s national sovereignty and security, public order, and the legitimate rights and interests of others in cyberspace: to defend cyberspace, authorities can employ technical measures such as information barring and filtering. they predominantly request that online publishers and disseminators remove any content that violates article 16 of the 2018 cybersecurity law. the competent authorities have the authority to collect information or monitor internet users if there is evidence of a severe violation of national security, the legitimate rights and interests of others, or the disruption of social order and safety. article 1(10) of decree 27 asks service providers for social networks or the internet to collaborate with specialized, competent agencies in order to prevent and address violations. foreign social network providers and websites such as facebook, google, youtube, and microsoft must establish a computing facility in vietnam to administer data generated by vietnamese internet users. in accordance with the information safety and security regulation, this requirement seeks to verify, archive, and provide information from social media upon request from the state authority (the government of vietnam 2018). it is argued that this regulation stems from the state sovereignty right in cyberspace, which holds that the state has the right to manage and protect domestic user data in vietnam to prevent potential threats to internet users’ rights, and simultaneously guarantee the safety and security of cyber information under its jurisdiction in accordance with international agreements, of which vietnam is a signatory. in support of their views on the relationship between state sovereignty and cyberspace, the vietnamese and other governments are protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 18 cognizant of the immense value of information in the digital age. big data affords its owners (whether they are states or non-state actors) numerous competitive advantages and potent positions. many governments are concerned about the administration of citizen databases on international social networking sites. foreign companies can simultaneously comply with vietnamese laws and safeguard the privacy of internet user data and free speech in cyberspace (the government of vietnam 2023). the state authorities must establish reasonable and proportionate mechanisms and measures to protect cybersecurity and guarantee the right to freedom of expression and uncensored access to information online, provided that the information does not violate articles 8 and 16 of the 2018 cybersecurity law. it is acknowledged that the realization of the right to freedom of expression must be distinguished from the intent and impact of the information that users post, share, and disseminate online regarding national security, public order, public health, and social morality. in a democratic society, the equilibrium between state, society, and community interests and individual liberties is a legitimate requirement. however, there is not always harmony between these two interests. if it desires to maintain public order and national security, the government must swiftly combat overly permissive online behavior. consequently, the state must take drastic measures promptly to prevent potential transnational cybercrimes and cyberterrorism against international peace and security as well as domestic state sovereignty and security. in addition to technical measures, vietnam imposes administrative or penal sanctions on internet users who violate the law under certain conditions. in accordance with article 99 of decree 15, uploading, transmitting, or using images of the map of vietnam that do not accurately depict or distort its sovereignty is punishable by a fine (the government of vietnam 2020). in contrast, articles 117 and 331 of the criminal code of 2017, which are more stringent, outline punishments for numerous violations of the right to freedom of expression. making, preserving, and disseminating information, materials, and other items to oppose the state is punishable under article 117 of the 2017 criminal code. this provision pertains, for instance, to an offender who uses social media to propagate false information or disinformation for the purposes of “defaming the government of vietnam,” “gaslighting the people,” or “causing psychological warfare.” these violations are categorized as “crimes that compromise national security”. in case 34/2019/hs-st8 of duong thi l., the people’s court of dak nong province issued the judgment accusing her of creating 21 facebook pages and luring innocent or dissatisfied people into an organization funded by an overseas organization, to give comments, publish articles, photos, and videos that represent historical facts and 8 people’s court of dak nong province (2019), case of prosecutor v. duong thi l. judgement, 23 september 2019. available at: https://congbobanan.toaan.gov.vn/2ta347817t1cvn/chi-tiet-ban-an (accessed 3 june 2022). https://congbobanan.toaan.gov.vn/2ta347817t1cvn/chi-tiet-ban-an vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 19 the party and state’s policies, incite protests, and instill fear and insecurity among the general population. this conduct was judged to impair both the community party of vietnam and national security, and she was acting out of self-interest. consequently, the judge sentenced the defendant to eight years in prison after finding that she had “spread information, materials, and items opposed to the state socialist republic of vietnam” (the people’s court of dak nong province 2019:para1). in addition, article 331 of the 2017 criminal code stipulates punishments for the offense of exploiting democratic freedoms to harm the interests of the state and the legitimate rights and interests of organizations and individuals. the law stipulates that anyone who abuses the freedom of expression, freedom of the press, freedom of religion, freedom of association, and other democratic freedoms to infringe upon the interests of the state, lawful rights and interests of organizations, and citizens is subject to a warning, public labor without custodians for up to three years, or imprisonment for six to thirtysix months. if the offense has a negative impact on social security, order, or safety, the offender is sentenced to between two and seven years in prison. it appears that article 331 is distinct from article 117 in that violations are classified as “crimes against the administrative management order”. in case 94/2019/hs-pt9 of quach nguyen anh k., the appeal court, based on the department of information and communications of can tho province’s assessment of “quach nguyen anh k.’s” facebook account, accused him of “abusing the right to freedom of expression to write, post, and comment on information with the intent to oppose, propagate, incite, and spread reactionary thoughts against the state”. the judge determined that: “the defendant’s actions were dangerous and directly violated the administrative order of the state; affected the leadership, legitimate rights, and interests of the communist party of vietnam; harmed the interests of the state of the socialist republic of vietnam; and disrupted political security, social order, and public safety” (people’s court of can tho city (2019:para2). in the verdict, the judge did not explain quach nguyen anh k.’s intent in exploiting democratic freedom to infringe on the interests of the state and other individuals, or what he hoped to gain. the court’s attribution was limited to what was violated, such as administrative order management, the prestige of the communist party’s leadership, and state interests. in assessing the degree to which the defendant’s actions posed a threat to society, the judge did not consider the extent of actual harm, but nonetheless decided to sentence him to six months in prison under article 331. 9 people’s court of can tho city (2019), case of prosecutor v. quach nguyen anh k. judgment dated august 28, 2019. available at: https://thuvienphapluat.vn/banan/ban-an/ban-an-942019hspt-ngay-28082019-vetoi-loi-dung-cacquyen-tu-do-dan-chu-xam-pham-loi-ich-cua-nh-105248 (accessed 10 june 2022). https://thuvienphapluat.vn/banan/ban-an/ban-an-942019hspt-ngay-28082019-ve-toi-loi-dung-cacquyen-tu-do-dan-chu-xam-pham-loi-ich-cua-nh-105248 https://thuvienphapluat.vn/banan/ban-an/ban-an-942019hspt-ngay-28082019-ve-toi-loi-dung-cacquyen-tu-do-dan-chu-xam-pham-loi-ich-cua-nh-105248 protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 20 in this case, it can be concluded that defendant quach nguyen anh k. conducted prohibited acts on social media similar to the acts committed by defendant duong thi l. but he did not have the motivation of inciting and provoking demonstrations to destroy the state and did not look for gain. it appears that article 117 of the 2017 criminal code aims at offenses to oppose and weaken the state while those in article 331 of the 2017 criminal code are interpreted differently depending on the specific act as abuse of ‘democratic freedoms’ to infringe upon prohibitions or restrictions without an intention to overthrow the state set out in the 2018 cybersecurity law. during conversations with the judge (h.d) of the supreme court in hanoi, the judge disclosed that there is no legal document that explains the content of article 331 in greater detail. in practice, justices frequently refer to and consider certain factors when determining the scope and repercussions of a violation of freedom of expression. the first is a specific provision of applicable legal documents, including the cybersecurity law, criminal code, civil law, and national security law. the second is the political and social context in which the offender posts and distributes deceptive information that misrepresents, smears, or defames the government’s policies and plans of action. for example, if a defendant intentionally commits a violation on the anniversaries of significant national events, during national assembly elections, or during the communist party of vietnam’s congresses, the violation is frequently viewed as more detrimental than on other days. third is the general cognizance of moral values, cultural traditions, and national customs among the populace. for instance, the local community is likely to object to any statement or action that disparages the images of national heroes or caricatures of the communist party or state leadership. in oriental cultures, these are regarded as disrespectful. the fourth factor is the severity of the offense’s impact on national security and social order. false, fabricated, and defamatory content or hate speech posted or shared on electronic sites or social media has a wider diffusion. internet users are susceptible to and drawn to information that induces greater psychological vulnerability than conventional media. therefore, the courts view cyberspace expression violations as detrimental to society and punish them with the appropriate legal measures. the vietnamese judge’s approach is relatively consistent with the supreme court of canada’s interpretation of proportionality in r v. oakes10, which states that “in order to determine the extent to which free speech is legally protected, judges must resolve contentious questions about the conception of democracy most appropriate to the legal system in which they hold office” (supreme court of canada (1986:paras69-70). however, it is questionable that certain terminology in the provisions of the 2018 cybersecurity law and the judgment of quach nguyen anh k. is imprecise and nonquantifiable. for example, how to define acts that “distort history and deny revolutionary 10 supreme court of canada (1986), case r v. oakes. judgment dated february 28, 1986. available at: https://scccsc.lexum.com/scc-csc/scc-csc/en/item/117/index.do (accessed 5 september 2022). https://scccsc.lexum.com/scc-csc/scc-csc/en/item/117/index.do vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 21 achievements” or “false information that causes confusion among the people, damage to socio-economic activities, and obstructions to the operation of state agencies” or acts that “disrupt national fine customs and traditions”. similarly, the content of article 331 is viewed as overly broad and ambiguous, which raises a number of controversies due to the absence of a definition of “abuse of the right to freedom of expression” and the extent of infringement on the state’s interests or the legitimate rights and interests of others. lacking legal interpretation by the national assembly’s standing committee11 relating terminologies, it is a challenge to human rights if the enforcement agencies rely arbitrarily on their own experiences to assess the dangerous degree of threat or harm derived from political hate speeches and anti-state information. for adjudicating crimes committed in cyberspace that fall under either article 117 or article 331 of the 2017 criminal code, the courts must invoke the provisions outlined in the 2016 press law and the 2018 cyber law if they present more cogent, legally supported arguments. the courts must also consider the actuality of the infringed objects and the objective manifestation of the criminal offenses in order to determine a criminal punishment proportional to the level of danger posed by said offenses. in reference to the case of duong thi l., the judge argued that “the accused’s crimes violated the ideological and cultural security of the socialist republic of vietnam, specifically the stability of spiritual life and the unity of the political foundation, as well as the belief of the masses in the political system and socialist institutions, thereby undermining the power of the people’s government”, and she was acting out of selfinterest (the people’s court of dak nong province 2019:para2). without an evaluation of the measurable level of danger or the anticipated negative impact on the targeted objects or individuals, such a claim is hardly convincing. the judge’s argument appears to be based on subjective and political conjecture rather than a quantitative evaluation of the infringed subjects. consequences would result if judges arbitrarily provided interpretations of a provision containing political terms or words rather than legal terms based on mere conjecture of potential violations or if they provided hypothetical circumstances derived from the interpretations of a specialized agency regarding facts that are not clearly defined in order to convict and impose liability on violators (inter american commission on human rights 2013:para62). if that happened, the court would be deemed to have taken disproportionate measures restricting freedom of expression, as indicated in the joint declaration on freedom of expression and response to conflict situations that: “all criminal restrictions on content – including those relating to hate speech, national security, public order and terrorism/extremism – should conform strictly to international standards, including by not providing 11 according to art. 74 (2) of the 2013 constitution of vietnam, the standing committee of the national assembly is empowered to give interpretations of the constitution, laws, and ordinances. protecting vietnam’s sovereignty in cyberspace: insights from human right laws the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 22 special protection to officials and by not employing vague or unduly broad terms” (un human rights 2015:para3). to avoid non-transparent regulations, it is asserted that vietnamese legislators should provide a precise and measurable definition of terms containing political implications. aside from there, they should provide a clearer explanation of the contents outlined in articles 8 and 16 of the 2018 cybersecurity law and articles 117 and 331 of the 2017 criminal code in order to confirm compliance with the requirement of proportionate technical or legal measures imposed on anti-state expression by articles 19 and 20 of the iccpr. according to anja mihr (2016:314), “without a commonly accepted ‘cyber-constitution’ based on human rights and the rule of law based on effective measures and mechanisms to enforce these rules, internet citizens or citizens 2.0 of this world will struggle to protect and enjoy their human rights in cyberspace.” the more transparent the regulations are, the more they will prevent state agencies from restricting citizens’ freedom of expression in cyberspace in the name of state sovereignty and security. conclusion the widespread use of social networking sites and the internet has promoted social interactions between the vietnamese government and people, as well as between people in the community, and ideas and viewpoints about democracy are widely exchanged on social media. the 2013 constitution has demonstrated that vietnam has fully embraced and more explicitly translated the human rights provisions of both the udhr and iccpr into specific domestic laws aiming at the comprehensive protection of human rights. it has also strengthened the duties and responsibilities of state authorities to ensure a more transparent exercise of human rights. in terms of the restriction on the right to freedom of expression in order to protect state sovereignty in cyberspace, this article confirms that vietnamese law has largely complied with the conditions outlined in articles 19 and 20 of the iccpr and the justifications in general comment no. 34. this article also discusses the maintenance of complex measures to control, restrict, and regulate online information, illustrating vietnam’s reluctance to permit complete internet access. similar to other states, vietnam faces threats and damages posed by terrorism and violent expression in cyberspace against state sovereignty and security, politics, the economy, and society. this restriction is not extraordinary. however, vietnam may violate the provisions of the iccpr if administrative or criminal sanctions are applied disproportionately to restrict the right to freedom of expression without reasonable justification. for supporting judges to make stronger, more convincing arguments about articles 117 and 331 of the 2017 criminal code, the relevant political terms and contents outlined in the 2018 cybersecurity law must continue to be uncovered in order to provide a more precise and jurisprudential interpretation that ensures a balance between the protection of state sovereignty and human rights in cyberspace. vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 23 references anja mihr (2016), “cyber justice: cyber governance through human rights and a rule of law in the internet”, 13 us china law review, 314–336. barlow, j. 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https://documents-dds-ny.un.org/doc/undoc/gen/n18/465/01/pdf/n1846501.pdf?openelement https://irp.fas.org/doddir/dod/dictionary.pdf https://irp.fas.org/doddir/dod/dictionary.pdf https://vietnamlawmagazine.vn/the-2013-constitution-of-the-socialist-republic-of-vietnam-4847.html https://vietnamlawmagazine.vn/the-2013-constitution-of-the-socialist-republic-of-vietnam-4847.html vu thi anh thu the age of human rights journal, 21 (december 2023), e7778 issn: 2340-9592 doi: 10.17561/tahrj.v21.7778 27 vn national assembly (2017), criminal code. available at: https://thuvienphapluat. vn/van-ban/bo-may-hanh-chinh/van-ban-hop-nhat-01-vbhn-vpqh-2017-boluat-hinh-su-363655.aspx (accessed 4 august 2022). vn national assembly (2018), the cybersecurity law. available at: https:// thuvienphapluat.vn/van-ban/cong-nghe-thong-tin/luat-an-ninh-mang-2018-351416. aspx (accessed 4 august 2022). received: 19th february 2023 accepted: 5th june 2023 https://thuvienphapluat.vn/van-ban/bo-may-hanh-chinh/van-ban-hop-nhat-01-vbhn-vpqh-2017-bo-luat-hinh-su-363655.aspx https://thuvienphapluat.vn/van-ban/bo-may-hanh-chinh/van-ban-hop-nhat-01-vbhn-vpqh-2017-bo-luat-hinh-su-363655.aspx https://thuvienphapluat.vn/van-ban/bo-may-hanh-chinh/van-ban-hop-nhat-01-vbhn-vpqh-2017-bo-luat-hinh-su-363655.aspx https://thuvienphapluat.vn/van-ban/cong-nghe-thong-tin/luat-an-ninh-mang-2018-351416.aspx https://thuvienphapluat.vn/van-ban/cong-nghe-thong-tin/luat-an-ninh-mang-2018-351416.aspx https://thuvienphapluat.vn/van-ban/cong-nghe-thong-tin/luat-an-ninh-mang-2018-351416.aspx protecting vietnam’s sovereignty in cyberspace: insights from human right laws abstract 1. introduction 2. conceptualizing cyber sovereignty the interdependent sovereignty or conditional sovereignty view in the context of globalization state sovereignty under the impact of the information technology revolution views on the independence of cyberspace in relation to state sovereignty views on the relationship between state sovereignty and cyberspace 3. conceptualizing online human rights 4. legal ground for protection of the right to freedom of expression in vietnam 5. imposing restrictions on online freedom of expression under vietnamese law 6. legal ground for handling violations for online freedom of expression in vietnam conclusion references redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 1 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks sanh shareef qader1 abstract: this paper examines the challenges in defining and safeguarding religious minorities within international and regional legal frameworks. it explores the main research question of how existing legal instruments and definitions impact the protection of religious minorities and aims to propose recommendations for improving these protections. through a literature review and critical analysis of international and regional legal frameworks, including the universal declaration of human rights, the international covenant on civil and political rights, and various regional instruments, the paper identifies significant gaps and inconsistencies in current protections. key issues highlighted include the lack of a universally accepted definition of religious minorities, the limitations of international and regional instruments, and the varying interpretations of religious rights by bodies such as the european court of human rights. the paper concludes with recommendations for clearer definitions, more robust legal provisions, and enhanced international and regional cooperation to better safeguard the rights of religious minorities. the findings emphasize the need for more effective approaches to protecting religious diversity and ensuring proper representation. keywords: religious minorities, international law, regional frameworks, legal definitions, protection mechanisms. 1. introduction this paper explores the challenges involved in defining and protecting religious minorities within the framework of international and regional legal systems. the primary research question focuses on how these legal instruments can more effectively meet the needs and rights of religious minorities, ensuring their protection and representation in various socio-political contexts. the objective is to provide an analysis of the existing legal instruments, identify their strengths and shortcomings, and propose actionable recommendations to improve the safeguards for religious minorities. the importance of this study is underscored by the persistent and widespread discrimination, persecution, and marginalization faced by religious minorities worldwide. despite numerous international treaties and conventions aimed at promoting human rights and religious freedom, significant gaps remain in the protection afforded to these vulnerable groups. the lack of a universally accepted definition of religious minorities complicates efforts to implement consistent and effective protections. this ambiguity often leads to varied interpretations and applications of legal safeguards, resulting in inconsistent protection and support for religious minorities. through an extensive literature review, this paper reveals 1 department of law, faculty of law, political sciences and management, soran university, kurdistan region, iraq. e-mail: sanh.qadir@soran.edu.iq https://doi.org/10.17561/tahrj.v23.8659 mailto:sanh.qadir@soran.edu.iq redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 2 substantial gaps and debates within existing research, highlighting the need for more effective approaches to the issue. the analysis of international instruments, such as the universal declaration of human rights (udhr), the international covenant on civil and political rights (iccpr), and the european court of human rights’ (ecthr) approach to religious freedom, highlights both their foundational strengths and notable limitations. additionally, regional frameworks like the framework convention for the protection of national minorities (fcnm), the european charter for regional or minority languages (ecrml), and the african charter on human and peoples’ rights are critically examined to assess their effectiveness in safeguarding the rights of religious minorities. this study not only identifies the legal and practical challenges faced by religious minorities but also explores the specific needs that distinguish them from other minority groups. ultimately, this study seeks to promote a deeper understanding of the issues surrounding religious minority rights and to advocate for stronger, more effective legal protections to ensure their dignity, freedom, and security in a diverse world. 2. research methodology this study employs a multi-faceted research methodology to analyze and evaluate international and regional instruments for safeguarding religious minorities. the study process involves a systematic review of scholarly literature, legal documents, case law, and reports from reputable international organizations, academic journals, and legal databases. additionally, qualitative methods such as thematic analysis and critical discourse analysis are utilized to identify key themes, trends, and critiques within the literature. furthermore, comparative analysis is employed to assess the effectiveness and limitations of various legal frameworks in protecting religious minority rights. through this rigorous methodology, the paper aims to provide a detailed understanding of the challenges surrounding the definition and protection of religious minorities, offering valuable insights and recommendations for enhancing minority rights protections at both international and regional levels. 3. literature review conducting a literature review on protecting religious minorities under international and regional instruments is important to present new insights on this subject, distinct from previous studies. the purpose of this review is to examine existing research on the safeguarding of religious minorities under these frameworks. it identifies gaps, critiques, and insights from various scholars, highlighting diverse perspectives on the challenges faced by religious minorities. ultimately, the goal is to pave the way for critical analysis in the paper, urging the strengthening of the position of religious minorities within international and regional instruments to enhance societal stability in countries. in his 2012 research, al-tayyib compared the guarantees of religious minorities’ rights in islamic law and international law. he posited that the “principle of equality” underscores the equality of individuals in law application without discrimination, ensuring legal parity among those with similar legal status. the researcher emphasized that religious affiliation shouldn’t influence law implementation or rights enjoyment. put https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 3 simply, there’s no regard for religious affiliation in international, regional, or national laws; religious minorities share equal rights as others. the equal protection before the law underscores “without discrimination in the application of the law” (al-tayyib, 2012). building upon al-tayyib’s research, one innovative approach could involve the creation of an international body tasked with monitoring and enforcing the rights of religious minorities, which is the focus of our present study. similar to existing human rights organizations, this entity would oversee adherence to the principle of equality across various legal systems worldwide. for example, it could review national laws and policies to ensure they uphold the equal treatment of religious minorities and intervene in cases of discrimination or rights violations. this would provide a unified framework for protecting religious minority rights on a global scale, promoting greater consistency and accountability in their legal treatment across different countries and regions. castellino and thomas in their paper delve into the intricate socio-political landscape of europe, particularly focusing on the challenges and opportunities presented by religious diversity and minority rights. it examines the historical narratives surrounding europe’s identity formation, highlighting the need to correct misconceptions and embrace the continent’s multi-religious reality. additionally, the paper explores the re-articulation of european values in contemporary society, emphasizing the importance of inclusivity and social cohesion. throughout the analysis, the authors emphasize the urgency of protecting religious minority rights as a fundamental aspect of societal progress. it discusses the pervasive impact of hate speech and the role of legal frameworks in combating discrimination while upholding freedom of expression. moreover, the authors address the relationship between church and state, advocating for neutrality in the public square and the implementation of measures to ensure access to rights without discrimination. the authors therefore emphasize the need to address the challenges posed by religious diversity, stressing the importance of historical accuracy, redefined european values, robust legal protections, and inclusive societal frameworks. it highlights the potential for europe’s diverse communities to contribute to a sustainable future, provided that inclusivity and equality are upheld as fundamental principles (castellino & thomas, 2021). however, an institution called a “european-wide task force” could be established dedicated to promoting interfaith dialogue and cooperation. this task force would bring together representatives from various religious communities, government agencies, and civil society organizations to foster understanding, tolerance, and collaboration among different faith groups. by facilitating regular meetings, workshops, and educational programs, this initiative would aim to bridge divides, dispel stereotypes, and promote mutual respect among europe’s diverse religious communities. in addition, the task force could work closely with legal experts to develop guidelines and best practices for combating religious discrimination and hate speech while safeguarding freedom of expression. in her 2018 article on minority political rights, fatima argues that international instruments advocate for equality between minority and majority members in political rights. however, she contends that the corresponding legal texts lack sufficient guarantees for implementation. she highlights the ongoing challenge: to what extent do countries activate these legal texts? some international documents avoid using the term “minority” and only address various forms of discrimination, like article 5 of the https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 4 international convention on the elimination of all forms of racial discrimination. this article forbids the use of color, language, or national origin to impede access to public jobs. fatima suggests that minorities could still face exclusion due to religious differences. she proposes the inclusion of a dedicated article in the convention to address this issue (fatima, 2018). however, fatima’s study captures a critique of international instruments on minority political rights, emphasizing the gap between theoretical equality and practical implementation challenges. it delves into specific issues highlighted in article 5 of the international convention on the elimination of all forms of racial discrimination and acknowledges the need for a dedicated article to address potential exclusions based on religious differences. the summary applauds the concise and insightful nature of the review, recognizing it as a strong foundation for further exploration in the paper. on the other hand, bielefeldt in the study regarding freedom of religion or belief as a human right, explores the challenges encountered by religious minorities within the context of freedom of religion or belief (forb). they emphasize the imperative of protecting the rights of religious minorities as an integral component of forb. it is underscored that forb must not inadvertently privilege majority or conservative religious positions to the detriment of minority or non-traditional beliefs. rather, forb should serve as a bulwark defending the rights of all individuals, including those belonging to religious minorities, enabling them to freely practice their faith or belief devoid of fear or discrimination. furthermore, discussions in academic circles have highlighted the intersecting vulnerabilities faced by religious minorities, necessitating a comprehensive human rights framework that addresses these multifaceted concerns. this includes considerations of how the rights of religious minorities intersect with broader human rights issues such as gender equality, non-discrimination, and the preservation of cultural heritage (bielefeldt et all, 2022). however, bielefeld’s study underscores the critical importance of protecting the rights of religious minorities within the broader context of forb and human rights discourse. it advocates for approaches that uphold the fundamental principle of freedom of religion or belief while recognizing and respecting the diverse religious beliefs and identities of all individuals worldwide. this study therefore provides an understanding of the challenges faced by religious minorities within the context of forb, highlighting the need for robust protections to safeguard their rights, which is supportive of our study. unlike the aforementioned researchers, jamal explores novel rights for minorities in international human rights law, notably the prohibition of discrimination. he underscores the significance of the “declaration on the rights of persons belonging to national or ethnic, religious, and linguistic minorities of 1992”. however, he criticizes the declaration for lacking implementation mechanisms, whether on an international scale through committees, councils, or courts in disputes, or on a national level through special courts. jamal notes the absence of provisions for incorporating the declaration’s texts into national law for enforceability. he identifies shortcomings such as ambiguous phrases like “provided that this contribution is made in a manner not inconsistent with national law.” furthermore, he highlights the lack of proposed measures for ensuring implementation, follow-up, and effective control means for enforcing the rights outlined https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 5 in the declaration (jamal, 2016). similarly, in her article, fawzia emphasizes that constructing a comprehensive system to protect minorities is challenging, as it relies on the will of states and governments. this is why neither human rights conventions nor minority conventions could offer effective protection for their rights, particularly cultural rights. fawzia argues that some countries have adopted policies to empower cultural minorities with these rights, while others still violate and do not acknowledge the rights of their cultural minorities under the pretext of maintaining cultural equality and public order stability. consequently, she concludes that there is no collective international agreement that comprehensively covers minority rights, but there are significant agreements that provide minority members the opportunity to express and preserve their cultural, religious, and linguistic characteristics (fawzia, 2018). however, these studies, though focusing on the protection of minorities, fall short in specifically focusing on religious minorities. critics might argue that by not honing in on the challenges faced by religious minorities, these studies might overlook distinct issues related to religious discrimination, freedom of worship, and cultural practices specific to religious communities. the broad emphasis on minority rights, in general, could potentially neglect the targeted measures necessary for safeguarding the rights of religious minorities, who may face forms of persecution or restrictions based on their beliefs. for example, according to a report by the universal periodic review, religious minorities such as ahmadis, christians, and hindus in pakistan face social, political, cultural, educational, and employment discrimination by the muslim majority in power (universal periodic cycle, 29th session, 2023). as a result, there could be a need for the current research that delves specifically into the protection of religious minorities under international and regional instruments to provide a more precise understanding of their challenges and rights. in contrast to the above, sundararajan discusses the protection of religious minorities at the international level. he states that the entitlement to practice religion as a personal entitlement is stipulated in human rights law and the international covenant on civil and political rights (iccpr). conversely, it is conceptualized as a collective right in the international court of justice (icj) and the international criminal court (icc). he argues that the jurisdiction of international courts is restricted only when religious freedom is threatened within the framework of armed conflict or hostilities. the author further contends that a religious right must be defined by a community, not merely granted to an individual to participate in a political process. he concludes that the safeguarding of religious minorities’ rights within the framework of international law is insufficient, reflecting the inherent weakness of international law (sundararajan, 2017). in their study, bothwell and peirson support sundararajan by arguing that the current persecution of religious minorities from malaysia to the middle east attests to the general failure of international courts to protect the religious freedom of minorities. they considered it a significant critique of the true responsibility of international courts. both authors suggest that the international judiciary must play an effective role at both international and regional levels to prevent violations of the religious minorities’ rights, emphasizing that these individuals are civilians, not fighters, and their families need protection (bothwell and peirson, 2019). this dual perspective highlights the urgency of addressing the limitations of current international courts in safeguarding the rights of religious minorities, which will be discussed further in the following sections. together, these studies advocate for https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 6 resilient international courts that are responsive to the challenges faced by religious minorities globally. in opposed to sundararajan, patrick thornberry, a renowned expert on international law and minority rights, emphasizes the importance of article 27 of the (iccpr), which provides that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right to profess and practice their own religion in community with others. this provision extends to affirmative action and special measures for a limited period, with the aim of bringing the minority into the same position within the society as the majority. thornberry further goes by highlighting that the human rights committee interprets article 27 to extend to non-citizens and even to “visitors,” emphasizing its individual nature with a group element. he also notes the committee’s consistent view that article 26, which guarantees equal protection of the laws, does not prohibit all differences in treatment, but only those based on unreasonable and discriminatory criteria (cited from wilson, 2002). however, the thornberry’s work underlines the significance of international law in protecting the rights of religious minorities and the importance of affirmative action and equal protection in ensuring their full participation in society. sealy’s study examines the management of religious diversity in europe, focusing on regions with distinct confessional-institutional legacies: majority catholic, protestant, and orthodox areas. using a comparative approach, the study explores similarities and differences in how religious diversity is negotiated, considering factors such as historical inheritance, state-religion connections, and the influence of dominant churches. by analyzing these aspects, the study sheds light on the inclusion and exclusion faced by minority faiths within contemporary european nation-states. it raises questions about the future trajectory of religious diversity in europe, probing evolving societal norms, political changes, and the role of religion in the public sphere. key questions emerge regarding shifting alliances among state, religion, and society. furthermore, the study investigates whether the future landscape will be characterized by religious division or by a division between christianity and secular enlightenment ideals. another part of the study emphasizes that religion should not play a role in public institutions, noting that the presence of politically extremist or socially conservative groups can disrupt national peace and security. at the same time, the study acknowledges the challenges faced by muslim minorities in european countries due to political islam and stresses the need to distinguish these minorities from political islam (sealy et al., 2021). the study offers valuable insights into the management of religious diversity in europe and highlights the need for further research into this complex issue. it suggests that the diversity of religious minorities can cause instability for political, social, and economic reasons, requiring international attention and special focus. berry’s examination of the european international frameworks regarding the protection of religious minority rights, as outlined in his paper, illuminates contrasting approaches employed by key entities such as the advisory committee (ac) of the framework convention for the protection of national minorities (fcnm), the european court of human rights (ecthr), and the united nations human rights committee (hrc). by focusing on the freedom to express religious beliefs, berry highlights the https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 7 disparities in methodologies utilized by these entities. berry underscores the ecthr’s tendency to grant broad discretion to european states, particularly evident in planning permission cases, which could potentially undermine the rights of religious minorities. this contrasts starkly with the ac’s approach, which prioritizes dialogue, compromise, and awareness to safeguard religious attire rights. the comparison further reveals the ecthr’s inclination to afford wide latitude to european states in imposing limitations on freedom of religion, whereas the ac and hrc maintain more restrictive stances. importantly, berry argues that the ecthr’s approach risks perpetuating prejudice and hindering effective protection of minority rights, especially concerning religious expression. however, he suggests that by amalgamating these approaches, there’s an opportunity to enhance the protection of religious minority rights while addressing concerns about potential prejudice and limitations on freedom of religion among european states (berry, 2012). in a similar vein, ghana’s study explores the marginalization of religious minorities within the minority rights regime, highlighting the detrimental effects of their exclusion. through an analysis of international human rights law and the jurisprudence of the un human rights committee, the study identifies key challenges in reintegrating religious minorities into the minority rights regime. these challenges include navigating statereligion relationships, recognizing religious minorities, considering religious leadership, and addressing the implications of religious laws. despite these challenges, ghana’s study advocates for recognizing the needs and rights of religious minorities within the broader human rights framework. by encouraging further debate and consideration of religious minorities, the study contributes to the ongoing discourse on minority rights and freedom of religion or belief (ghanea, 2012). both studies underscore the need to protect the rights of religious minorities and suggest that their specific characteristics must receive stronger attention within the international human rights framework, which will be further examined in our study. importantly, ruiz vieytez provides a new comprehensive examination of the legal instruments published in 2024 and aimed at protecting religious diversity, highlighting inconsistencies and challenges within existing frameworks. the study aligns international law and comparative constitutional law in recognizing the importance of safeguarding fundamental rights impacted by religion. however, inconsistencies arise in how these rights are interpreted and implemented across different legal systems, leading to gaps and overlaps in protection. while freedom of religion and the right to freedom from discrimination are widely covered, the rights of religious minorities receive less consistent attention. vieytez suggests a need for a paradigm shift towards integrating the protection of diversity within existing fundamental rights frameworks, rather than creating separate rights for religious minorities. this holistic approach emphasizes the importance of recognizing religion as an essential aspect of human dignity, embedded within broader human rights principles (ruiz vieytez, 2024). however, from the findings of ruiz vietez’s study, it becomes clear that reshaping the discourse around the preservation of religious diversity is a current need. this seems to emerge from a novel approach, which advocates the integration of diversity into existing human rights frameworks rather than the creation of separate rights for religious minorities. this shift towards a more inclusive paradigm not only recognizes the intrinsic link between religion and human dignity but also fosters https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 8 a deeper commitment to uphold fundamental rights for all individuals and religious groups. this study can be a good testimony to our research that religious minorities are not adequately protected on the international stage. after critically reviewing prior research on the safeguarding of religious minorities’ rights in international law, it becomes evident that this literature was essential and, despite its variations, cannot be disregarded in our study. the literature review encompasses diverse perspectives on the protection of religious minorities’ rights. one perspective emphasizes non-discrimination based on religious affiliation, while another underscores deficiencies in implementing international instruments advocating for minority political rights. another discussion delves into new rights for minorities, critiquing the lack of implementation mechanisms. there are also notes on challenges in building a system for minority protection and the absence of a collective international agreement. a critical examination of the safeguarding of religious minorities at the international level argues for a communal definition of religious rights. supporting this critique, another perspective urges a reassessment of the role of international courts. together, these perspectives reveal a complex landscape, emphasizing the theoretical gaps and practical challenges in safeguarding religious minorities’ rights, ultimately paving the way for a focused exploration of this crucial topic in the ensuing research. 4. challenges and perspectives in defining religious minorities the definition of religious minorities is a contentious issue within academic discourse, shaped by legal, political, and social contexts. scholars from various disciplines offer diverse perspectives, each highlighting different dimensions and implications of defining religious minority identities. religious minorities require additional protection compared to other groups due to their vulnerability to persecution, violence, and discrimination based on their beliefs. protecting religious minorities ensures the preservation of diverse cultural heritages and upholds international human rights obligations, such as those outlined in the universal declaration of human rights. moreover, safeguarding these groups fosters social cohesion and stability by promoting inclusive societies where diversity is respected, reducing the potential for conflict, and supporting peaceful coexistence. in contemporary contexts, with rising instances of religious intolerance and extremism, these protections are crucial for allowing individuals to practice their beliefs without fear. therefore, this section revolves around these factors and challenges. legal scholars such as t. jeremy gunn and elizabeth shakman hurd advocate for expansive legal frameworks that extend beyond numerical criteria. gunn emphasizes the need for legal definitions to incorporate cultural distinctiveness and vulnerability to persecution, arguing for a robust rights-based approach to protect minority communities (gunn, 2020). similarly, hurd explores how international legal norms can navigate the complexities of religious pluralism within secular states, suggesting that legal definitions should reflect evolving social realities (hurd, 2015). in contrast, sociologists brian j. grim and roger finke focus on demographic trends to understand the numerical composition of religious minorities and their implications for social cohesion. they argue that demographic analyses are essential for assessing the societal impact and resilience of minority communities https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 9 (grim & finke, 2011). however, this quantitative approach may oversimplify the diverse cultural and political dynamics that shape minority identities, potentially overlooking the lived experiences and qualitative dimensions of religious diversity. anthropologist talal asad challenges essentialist categorizations of religious minorities by emphasizing contextual understandings of cultural practices and identities. asad critiques static definitions that fail to account for historical and political contingencies, advocating for an approach that recognizes the agency and complexities of minority communities (asad, 2003). this perspective contrasts with legal scholars like gunn, who prioritize legal protections and formal recognition in defining minority rights. however, bisharae examines how state policies shape the rights and status of religious minorities, highlighting variations in state approaches across different contexts. bishara’s comparative analyses emphasize the role of political dynamics in shaping minority rights protections, suggesting that governance structures significantly influence minority experiences (bishara, 2021). this political perspective complements legal and sociological analyses by illustrating how state interventions can either enhance or undermine minority rights frameworks. although the term religious minorities is used to describe smaller and numerically non-dominant religious groups within a nation-state, scholars have argued that this definition is not always straightforward and can be influenced by various factors such as power dynamics, recognition by society, and the context in which the term is used. one of the key points made by scholars is that the meaning of “religious minorities” is relational, contextual, and situational. this means that the term only makes sense by contrasting it with or distinguishing it from an assumed majority. for instance, a group may be considered a minority in one context but not in another, depending on the specific choices made by actors based on their interests, necessities, and opportunities (stausberg, van der haven, & baffelli, 2023). this raises questions about the validity and consistency of using the term “religious minorities” as a universal concept. the intersectionality of religious minorities is also significant. many religious minorities also belong to other categories such as ethnic, language, national, or racial minorities, which can complicate their legal protections and social status. while scholars have highlighted the importance of recognizing these intersections, some argue that this approach can lead to further marginalization and stereotyping of certain groups. for example, in syria, both sunnis and christians are non-dominant, but only christians fit the definition of a religious minority under international human rights law. this raises questions about the inclusivity and fairness of such legal frameworks. on the other hand, the recognition of religious minorities can also be influenced by the state’s relationship with religion. in some cases, the state religion or ideology can dominate and influence the power dynamics, making it challenging to determine who constitutes a religious minority. for instance, in countries where the state religion is closely tied to the government, it may be difficult to identify a dominant religious group. furthermore, the term “religious minorities” is often used in political and social contexts to celebrate diversity and pluralism. however, it can also be used to create dichotomies and stereotypes, such as “good” and “bad” minorities, which can lead to homogenizing representations and marginalization of https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 10 certain groups (ghanea, 2012). these arguments have been used to criticize the notion of religious minorities as a universal concept, as they highlight the importance of considering the specific political and social contexts in which these groups operate. at the same time, they have been used to criticize the use of the term as a tool for political and social manipulation, rather than a genuine attempt to understand and address the challenges faced by religious minorities. more importantly, the definition of religious minorities is a complex issue within the realm of legal scholarship, which has significant implications for the protection and recognition of these groups under international legal instruments. legal scholars, therefore, approach the issue from different angles, highlighting both the strengths and limitations of existing legal frameworks. bielefeldt and his co-authors discuss the international legal framework surrounding freedom of religion or belief, including the provisions of the international covenant on civil and political rights (iccpr), which we will discuss further in the following sections. they critique the vague language often found in these legal instruments, highlighting how it can lead to inconsistent application and enforcement of protections for religious minorities (bielefeldt, ghanea-hercock, & wiener, 2016). this critique extends to examining the challenges posed by the ambiguity of international legal definitions, emphasizing that such vagueness leads to inconsistent application and enforcement across jurisdictions. this lack of specificity often fails to address the specific needs of religious minorities, including the recognition of their religious practices, protection from discrimination and persecution, and the safeguarding of their cultural, educational, and socio-economic rights. this ambiguity can result in ineffective legal protection and the marginalization of these groups (ferrari, 2021). bielefeldt’s critique and that of his co-authors, while valid, may be seen as somewhat idealistic. the push for highly specific definitions in international law risks overlooking the pragmatic necessity for flexibility to accommodate diverse national contexts. furthermore, bielefeldt and his co-authors’ analysis does not fully account for the political challenges inherent in achieving consensus on more detailed definitions at the international level. additionally, practical questions arise: how can international law, which must be broadly applicable, cater to the specificities of diverse religious practices and identities? this analysis, though theoretically sound, may be critiqued for not sufficiently considering the operational difficulties and unintended consequences of implementing such specific definitions on a global scale. another researcher defined religious minorities as a type of minority in general, distinguished from the majority based on religious beliefs, whether it is a heavenly religion such as islam, christianity, or judaism, or a non-heavenly religion such as buddhism. examples of such minorities include muslims in india or christians in iraq. he emphasizes that there is an opinion that if we take religion in its narrow sense, sectarian differences within a religion do not lead to the formation of minorities (hassan, 2022). however, because the difference is based on religious beliefs, sectarian differences will also cause the formation of minorities within the country, provided that conditions such as numbers, marginalization, and characteristics such as race, beliefs, or language, and the criteria of collective or shared feelings are met. https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 11 ahmad wahban (2006) in his book points out that religious minorities are any ethnic group that is based on religion and distinguishes it from other ethnic groups in the same society (wahban, 2006). however, linking ethnicity to religion may not be acceptable because one religion can encompass several ethnic groups. problems often arise when religious differences among population groups become apparent. sharing a religion strengthens ties between individuals of the same group as much as it distances them from groups that follow another religion. this conflict becomes even more intense when two religions have different positions on a particular issue, with one forbidding it and the other commanding it to be followed. this is especially true in societies where religion is integral to daily life. therefore, the level of proximity or distance between groups following different religions depends on the group’s attitude toward that religion. although a particular religion does not reject its predecessors, such as christianity not rejecting judaism, the first religion may still lead to the emergence of a recognized religious minority (yaqo, 2022). in addition, in multicultural societies, religion can be a secondary factor that either fosters unity or poses an obstacle to peaceful coexistence. this dynamic depends on how the authorities use religion, how the issue is regulated by law, and the extent to which society protects and expresses its religious beliefs. it has been observed that the demands of religious minorities are often limited to the construction of places of worship, the free conduct of their religious activities, and the provision of religious education for their children. to maintain societal stability, political authorities should strive to meet these demands in accordance with the law, despite their differences. in fact, there is no legally effective definition of religious minorities. what exists is the definition of minorities in general, which was first given in 1977 by “subcommittee on the prevention of discrimination and the protection of minorities,” francesco capotorti, the commission’s rapporteur, proposed an alternative definition that gained acceptance. this revised definition states that a minority refers to “a group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from the rest of the population and show, if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language” (issa & qarish, 2022).while this definition is more widely accepted at the international level and offers a framework for defining minorities in terms of numbers, political status, civil characteristics, and collaboration as an independent minority, it is not without criticism. one concern, as fortman noted, pertains to the numerical measure, deemed unimportant as it overlooks the potential abuse of power stemming from a high position based on collective identity. he exemplified an experience they had at a conference in brunei, which is a country where most people are malay and islam is the dominant religion. they asked if there were any people from minority groups at the conference, but nobody said yes. then they asked if there were any chinese or christians, and many people said yes. this made them wonder why people who fit the definition of being part of a minority group don’t identify as such. the answer they found is that there’s no benefit to identifying as a minority, and it could even be risky in terms of safety. he therefore concluded that, in brunei, where most people are malay and muslim, chinese citizens value their language, and christians want to freely practice their religion. they want to preserve their culture and traditions, but their main priority is https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 12 feeling safe and secure in the country. they believe that true integration into the nationstate is the best way to achieve this (fortman, 2011). furthermore, numerical criteria cannot be established to classify a group as a minority, as the mere presence of a specific or absolute entity cannot serve as a criterion for groups seeking minority recognition. conversely, numerical criteria may be employed to safeguard the cultural attributes of a minority group. however, a small number alone does not constitute a minority, leading to the issue that numerical criteria can, on the one hand, shape the identity of a small group created by another seeking power by imposing specific characteristics within the state. on the other hand, these criteria can be used to undermine the characteristics and interests of a small group if its numbers are limited. moreover, numerical criteria cannot dictate how participation in power administration is structured, as power shifts are driven by injustice and abuse rather than numerical considerations. therefore, using numbers as a criterion for minority recognition is not only meaningless but also imposes a burden on the group itself, as the inadequate treatment of a minority group results not only from a lack of numbers but also from their exclusion from positions of power (rehman, 2021, p.13-14). these studies emphasize the need for a more sophisticated approach to minority identification, including religious minorities, that considers broader socio-political contexts. this approach should go beyond numerical definitions to recognize intersectionality, self-identification, and the specific historical, cultural, economic, and political contexts of minority groups. effective political representation is crucial, ensuring minority groups have meaningful participation in decision-making processes and supporting minority-led advocacy. understanding minority recognition must integrate legal protections, socio-economic inclusion, cultural recognition, and social cohesion, while establishing mechanisms to monitor and enforce minority rights. by considering these factors, it can develop strategies that promote equity and inclusion for all minority groups. another shortcoming of capotorti’s definition, particularly the phrase “possess ethnic, religious, or linguistic characteristics differing from the majority.” the word “possess” suggests that minorities have inherent differences, disregarding how they are influenced by the identity of the majority. similarly, article 2 of the un convention on genocide also neglects this aspect, implying that certain groups exist independently, regardless of how they are defined by themselves or by those in power (costa, 2008). for example, imagine a country where the majority of people speak language a. there is a smaller group of people who speak language b. according to capatorti’s definition, this smaller group could be considered a minority because they possess a linguistic characteristic (language b) different from the majority (language a). historically, language a speakers held positions of power and authority in the country. they established language a as the dominant language through policies and cultural practices. the minority group, on the other hand, may have originally spoken language a but were marginalized over time. as a result, they adopted language b as a way to maintain their cultural identity and resist assimilation into the dominant group. in this example, the minority group’s linguistic characteristic (language b) is not a primordial or inherent trait; rather, it is a result of historical and social processes shaped by the dominant group’s actions. the use of the word “possess” in capotorti’s definition overlooks this dynamic and suggests that minorities naturally possess distinct characteristics, which may not always be the case. https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 13 another criticism is that capotorti places undue emphasis on the existence of ethnic characteristics for minorities, neglecting non-ethnic minorities recognized by the state. this approach may enable states to avoid safeguarding a distinct minority and instead treat the group based on citizenship without discrimination, thus not categorizing it as a minority. this could strip minorities of their authenticity and hinder their ability to exert influence or demand power as a minority. for instance, religious minorities are often overlooked in protection policies. in some cases, states may overlook the unique challenges and vulnerabilities faced by religious minority groups, potentially denying them specific protections based on their faith. this oversight could lead to discrimination or a failure to acknowledge the specific issues encountered by religious minorities within the broader population. as an illustration, the baha’i faith is one of the most unrecognized religions in iran, with an estimated 300,000 followers in the country and 5 million worldwide (“iran arrests nine more members of baha’i faith,” 2023). however, the final definition to consider is that of fernand de varennes, the special rapporteur on minority issues, who introduced the working definition on minorities in 2019. his report, titled “education, language, and the human rights of minorities”, offers a clear definition of what it means to be a minority. it stresses the importance of recognizing and addressing problems concerning minority rights and equality. this includes examining how minority groups might be treated differently because of their physical or cultural differences and how they might face discrimination as a group in society. he also offers several recommendations. firstly, suggesting adopting a unified definition of minorities based on article 27 of the iccpr2 to ensure consistent understanding and application across united nations entities. secondly, recommending drafting practical guidelines on minority rights and language use in education, building upon existing principles. thirdly, he advocates for the institutionalization of regional forums to facilitate constructive dialogue on minority issues. lastly, varennes proposes considering the establishment of a working group to explore the potential creation of a dedicated instrument for safeguarding the human rights of minorities within the un system, akin to existing mechanisms for other marginalized groups (ungs, a/hrc/43/47, 2020). although this definition is much more modern for the status and protection of minorities in general, the rapporteur still emphasizes the need for a unified definition of minorities. this reflects the fact that the international community has not been able to issue a unified and comprehensive definition of minorities based on their characteristics. the absence of a consensus international definition for minorities has, therefore, opened the door wide to a plurality of definitions, negatively impacting the protection of minorities, including religious minorities, as these various definitions lack binding legal force. however, it is clear from these definitions that there is an emphasis on objective 2 un general assembly, international covenant on civil and political rights, resolution 2200a (xxi),16 december 1966. article 27 states “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 14 criteria. this approach deals with the elements and characteristics of minorities that distinguish them from others, without necessarily referring to their position and goals in society. for example, a religious minority based on these criteria could be the yazidis in iraq. the yazidis have unique cultural and religious practices that set them apart from the predominantly muslim population. due to historical and contemporary challenges, including social issues, the yazidis exemplify the complexities associated with being a religious minority in certain regions (oliaei, 2023). in the light of the above, it is clear religious minorities face numerous challenges, including navigating ambiguous legal frameworks, overcoming demographic oversimplifications, and addressing intersectional identities. the lack of a unified international definition further complicates their protection. scholars emphasize the need for inclusive legal protections that consider the cultural, political, and social contexts shaping minority identities. this is important for maintaining domestic and international social and political stability. 5. critical evaluation of international and regional instruments for safeguarding religious minorities this section delves into the intricacies of safeguarding religious minorities, critically evaluating both international and regional instruments designed for their protection. religious minorities possess specific characteristics that distinguish their rights from those of other minority groups. their unique vulnerability to persecution, discrimination, and violence based on their beliefs is exacerbated in societies where a dominant religion prevails, leading to systemic inequalities. the identity of religious minorities is intrinsically linked to their belief systems, which dictate their practices, values, and community structures, making their rights particularly sensitive. protecting the rights of religious minorities is essential for preserving diverse cultural heritages and maintaining the richness of societal diversity. while their rights are often enshrined in international human rights frameworks, the effectiveness of these protections can vary significantly based on local laws and societal attitudes. religious minorities often intersect with other minority identities, leading to compounded vulnerabilities that necessitate tailored protections. the recognition and non-recognition of their rights play a significant role in their situation, with some groups actively resisting marginalization while others conform to societal expectations (deibert, 2023, alves, 2008 & stausberg, van der haven, & baffelli, 2023). by scrutinizing these frameworks, this section aims to identify challenges and propose insights for enhancing the international defense of religious minority rights, highlighting the necessity for specific protections that differ from those afforded to other minority groups, as their situation is shaped by the intersection of religious identity with broader social, cultural, and political factors. 5.1. international instruments as it was explained, the concept of religious minorities is complex and varies significantly across different contexts. the united nations defines minorities as groups based on national, ethnic, cultural, religious, or linguistic identity, distinct from the majority https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 15 population (united nations, 1992). while the united nations’ broad definition aims to be inclusive, it often leads to challenges in practical application. the lack of specificity in the united nations’ broad definition of minorities can lead to inconsistencies in how religious minorities are recognized and protected. by using a broad and inclusive definition that encompasses national, ethnic, cultural, religious, or linguistic identities, the un aims to address a wide range of minority groups. however, this broad approach can be problematic because it lacks detailed criteria for distinguishing between different types of minorities and their unique needs. as a result, the application of the definition can vary significantly from one context to another. for instance, a country with a diverse population might interpret and apply the un’s definition differently than a country with a more homogenous population. this variability can lead to inconsistent protection and recognition of religious minorities, as legal and cultural contexts influence how these groups are treated. a significant discourse in minority rights is the distinction between individual and collective rights. individual rights, as enshrined in instruments like the universal declaration of human rights (udhr), ensure the protection of individuals within any group, including religious minorities. these rights include freedom of thought, conscience, and religion (article 18, udhr, 1948). article 18 encompasses the freedom to embrace or adopt a religion or belief of one’s choosing, as well as the freedom to express one’s religious beliefs, either alone or collectively, in public or private settings, through rituals, observances, actions, and teachings. however, collective rights focus on protecting the rights of the group as a whole, recognizing that the preservation of a group’s identity often requires collective measures. instruments like the iccpr highlight the importance of collective rights by acknowledging the rights of minorities to enjoy their own culture, practice their own religion, and use their own language (article 27, iccpr; 1966). however, article 18, alongside article 27, can spark controversy. there are concerns about balancing freedom of expression with respect for religious beliefs. restrictions on freedom of religion or belief (forb) might curb speech deemed offensive or blasphemous, potentially encroaching on freedom of expression. these limitations may not align with contemporary societal issues and challenges and could undermine broader group needs such as protecting sacred sites, maintaining traditional practices, and promoting communal language. the restrictions might also affect the group’s overall identity and the ability to address collective needs effectively. stahnke presents a different perspective from the aforementioned analysis, suggesting a potential misunderstanding of the concept of “absolute” religious freedom. it is argued that this absolute freedom pertains solely to individuals’ beliefs in their minds , rather than their actions. for instance, stahnke interpreted article 18 of the iccpr as guaranteeing absolute freedom of religion, allowing individuals to choose any religion without restrictions (stahnke, 2005). however, legal expert arcot krishnaswami, special rapporteur of the sub-commission on prevention of discrimination and protection of minorities in 1960, clarifies that while the freedom to believe in a religion is deemed absolute, the freedom to practice or act on that belief can be regulated by the government to maintain public order and safety. thus, individuals may believe as they wish, but their actions stemming from those beliefs may be subject to reasonable regulations (krishnaswami, 1960). https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 16 minor’s perspective not account for the balancing act required between protecting religious freedom and maintaining a stable and harmonious society. this view fails to consider the potential conflicts that can arise between individual religious freedoms and other important societal interests, such as public order, safety, and the rights of others. an absolute, unrestricted approach to religious freedom can lead to situations where individuals or groups engage in harmful or illegal practices in the name of religion, which governments would be powerless to prevent or regulate. however, krishnaswami provides a more balanced interpretation of religious freedom, distinguishing between the internal forum (beliefs) and external forum (practices). this distinction is important because it recognizes that while individuals have the right to hold any religious beliefs they choose, the manifestation of those beliefs through practices can have consequences for society as a whole. krishnaswami’s perspective aligns with the general understanding of religious freedom as a fundamental human right that is not absolute or unlimited, and can be subject to certain restrictions prescribed by law. therefore, krishnaswami provides a framework that better balances individual religious freedoms with the need to maintain public order, safety, and the rights of others. individual rights are fundamental to the protection of human dignity and personal freedom. these rights are inherent to each person, regardless of their group identity, and are designed to safeguard personal autonomy and liberty. the udhr emphasizes these rights to ensure that every individual, including those within religious minorities, can freely exercise their beliefs without coercion or discrimination (udhr, 1948). while individual rights are widely recognized and protected, their implementation can be challenging in contexts where societal norms and legal systems do not fully support religious freedom. for instance, in saudi arabia, where apostasy or conversion from islam is punishable by death, individuals from religious minorities may face severe persecution. a welldocumented case is that of saudi blogger raif badawi, who was sentenced to 10 years in prison and 1,000 lashes for, among other charges, “insulting islam through electronic channels” (“saudi blogger freed after decade in prison,” 2022). this case illustrates the severe consequences individuals can face in countries where religious freedom is not upheld. in fact, while religious conversion is permissible in most countries, it is often not accepted in muslim societies, where religion is considered divine and unchangeable. therefore, it can be suggested that conversion laws should not solely be governed by general legal systems but should also consider the religious context of a society. article 2 of the udhr states: “everyone is entitled to all the rights and freedoms outlined in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. furthermore, no distinction shall be made based on the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any other limitation of sovereignty” (udhr, 1948). however, while article 2 of the udhr broadly prohibits discrimination, it lacks detailed provisions for not only religious minorities but also minorities in general. specifically, the absence of specific protections can lead to inadequate responses to issues such as difficulties in accessing religious education and establishing religious institutions, https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 17 which are crucial for maintaining and transmitting religious traditions. additionally, without explicit safeguards, religious minorities may be vulnerable to hate speech and violence, which are not always effectively managed by general anti-discrimination principles. this principle is often difficult to uphold in diverse cultural and political contexts. for example, in russia, restrictions on religious freedoms have severely impacted groups like jehovah’s witnesses, who face numerous legal and societal obstacles. the russian government has targeted jehovah’s witnesses under laws aimed at combating extremism, leading to fines, detentions, and even criminal charges against members of the faith. this situation highlights the deteriorating conditions for religious freedom in russia and the implications of vague legal definitions that allow for broad interpretations, leading to discrimination against these groups (report on international religious freedom: russia, 2023). this article also guarantees equal rights for all individuals, but it fails to recognize the special needs and rights of religious groups and minorities in general. by making no reference to the word ‘minority,’ it can create tensions between ensuring equal treatment for all individuals and addressing the unique challenges and rights of minorities, especially in the context of religious diversity. these needs and rights include the preservation of cultural heritage, participation in decision-making processes that affect their communities, and protection from forced displacement. additionally, minorities often face challenges such as limited access to healthcare, inadequate legal protection, and social exclusion, all of which hinder their ability to achieve true equality. therefore, to improve this article, it can be stated: “everyone is entitled to all the rights and freedoms outlined in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, minority status, or other status. furthermore, special attention shall be given to the needs and rights of religious groups and minorities, including the preservation of cultural heritage, participation in decisionmaking processes, and protection from forced displacement. no distinction shall be made based on the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any other limitation of sovereignty”. collective rights are crucial for preserving the identity and culture of minority groups. these rights recognize that the survival and flourishing of a minority group often depend on the ability of its members to maintain their shared cultural, linguistic, and religious practices. they are particularly relevant for religious minorities, whose practices and beliefs may be intertwined with their cultural identity (jones, 2022). however, the recognition and protection of collective rights can be challenging, especially in multicultural societies where the interests of different groups may conflict. ensuring that the collective rights of religious minorities are respected without infringing on the rights of other groups or individuals requires careful balancing. moreover, some states may resist recognizing collective rights, viewing them as a threat to national unity or territorial integrity. for instance, in china, the uyghur muslims in xinjiang and tibetan buddhists face severe restrictions justified by the government as measures against separatism (human rights watch, 2024), and india’s abrogation of article 370, which granted autonomy to jammu and kashmir, reflects its prioritization of national integrity over regional autonomy for the kashmiri muslim population (sharma, 2023). https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 18 rehman suggests that the language used in article 27 of iccpr and article 30 of convention on the rights of the child (crc)3 does not imply a collective status, indicating that distinguishing between individual and collective entitlements may not justify the existence of separate rights. furthermore, there is a lack of consensus among experts regarding how freedom of religion intersects with the entitlements of religious minorities (rehman, 2000). rehman’s assertion undermines the very essence of minority protections, which inherently require recognition of collective rights to safeguard the cultural and religious identities of groups. this perspective risks marginalizing the broader aspects of minority rights, reducing them to mere individual claims that fail to tackle challenges such as discrimination, social exclusion, and the destruction of cultural heritage faced by religious minorities. furthermore, the acknowledgment of a lack of consensus among experts regarding the intersection of freedom of religion and minority rights highlights a troubling gap in legal scholarship and practice, suggesting a failure to adequately address the complexities of these rights in international law. it is imperative to distinguish between religious minority rights and other minority rights, such as ethnic or linguistic, in order to address the specific needs and challenges faced by religious minorities (hassan, 2022). the un declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief specifically addresses issues pertinent to religious minorities, emphasizing the need for tolerance and non-discrimination in religious matters (un general assembly, 1981). however, religious minorities often face discrimination and persecution based on the practice of their faith, which may not apply to other types of minorities. for instance, a ruling religious minority in a country may not allow another religious minority that is nationally and ethnically the same but faces discrimination due to religious differences. a notable example is the dominant shiite arab power in iraq, which often excludes the sunni arab minority from significant participation in state governance because of religious differences (luizard, 2022). therefore, international instruments should note that religious minorities are often discriminated against due to their faith, rather than their national or ethnic characteristics. article 27 of the iccpr has been the subject of much debate among scholars. ghanea highlights a crucial aspect concerning the safeguarding of religious diversity, particularly in terms of protecting the rights of religious minorities to practice their faith (ghanea, 2008). however, the absence of a clear definition of this entitlement poses a significant challenge, especially in clarifying what constitutes “religious diversity,” identifying who qualifies as a “religious minority,” and defining how these rights intersect with broader freedoms of religion and non-discrimination. without such clarity, the application of these protections can become inconsistent, leading to legal ambiguities and ineffective safeguards for religious minorities. a precise definition, considering these challenges, 3 un general assembly, convention on the rights of the child, united nations, treaty series, vol. 1577, p. 3, 20 november 1989, https://www.refworld.org/legal/agreements/unga/1989/en/18815. article 30 states “in those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language”. https://doi.org/10.17561/tahrj.v23.8659 https://www.refworld.org/legal/agreements/unga/1989/en/18815 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 19 should include explicit criteria for identifying religious minorities, clear parameters for what constitutes religious diversity, and detailed guidelines on how these rights intersect with broader freedoms of religion and non-discrimination. this would ensure uniform application, legal certainty, and alignment with international human rights standards. the 1992 un declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities (undm) is an international instrument that establishes a comprehensive framework for the protection of minority rights, including those of religious minorities. the declaration outlines four pillars of minority rights protection. firstly, it affirms the right of minorities to exist and maintain their distinct identity, calling on states to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities” (article 1(1)). secondly, the declaration emphasizes the principle of nondiscrimination, guaranteeing that persons belonging to minorities shall enjoy their rights “without discrimination of any kind” (article 2(1)). thirdly, it recognizes the importance of promoting and protecting the distinct cultural, religious, and linguistic identity of minority groups, urging states to “encourage conditions for the promotion of that identity” (article 1(1)). lastly, the declaration underlines the need for minorities to be able to participate effectively in decisions that affect them, stating that “persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life” (article 2(3))4. the undm represents a significant advancement in safeguarding the rights of minorities, including religious minorities. despite the un general assembly’s emphasis on minority rights and human rights, the declaration is not legally binding (kugelmann, 2007). this means that it does not carry the same weight as an independent declaration of human rights. however, the declaration does aim to treat minorities as individuals, rather than simply members of a distinct minority group. the non-binding nature of the declaration, categorized as soft law, has limited its practical effectiveness. unlike treaties or conventions, the declaration does not impose legally enforceable obligations on states, making it difficult to hold them accountable for violations. this limitation is particularly evident in the ongoing challenges faced by various religious minority groups worldwide, as mentioned earlier. for example, the rohingya muslims in myanmar face severe persecution, including violence and displacement, due to their religious identity (albert & maizland, 2020). similarly, the yazidis in iraq have experienced systematic violence and atrocities at the hands of isis, targeting them specifically for their religious beliefs (human rights watch, 2023). despite these severe violations, the international criminal court has not been able to investigate the genocide committed against the yazidis, illustrating the limitations of current international mechanisms in protecting religious minorities (international criminal court, 2015). the ambiguity in the language of the undm, especially in article 2(1), has raised concerns. this article states that “persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their religion, and to use 4 un general assembly, declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, a/res/47/135, 3 february 1992, see the full text of articles available at: https:// www.refworld.org/legal/resolution/unga/1992/en/13909. https://doi.org/10.17561/tahrj.v23.8659 https://www.refworld.org/legal/resolution/unga/1992/en/13909 https://www.refworld.org/legal/resolution/unga/1992/en/13909 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 20 their language, in private and in public, freely and without interference or any form of discrimination.” however, it lacks specific protections for unique religious practices and has an ambiguous definition of “interference.” for instance, state actions that are not directly prohibitive but create an environment where religious practice is challenging, such as indirect restrictions on religious attire or practices, might not be sufficiently covered. the article also falls short in recognizing collective rights necessary for community worship and does not explicitly address state-sanctioned religious intolerance. to improve the article, it can be revised to “persons belonging to national or ethnic, religious, and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their religion individually or in community with others, and to establish and maintain places of worship and religious institutions, in private and in public, freely and without interference or any form of discrimination. states are obligated to take active measures to promote and protect the religious identities and practices of minorities and to prevent and tackle direct and indirect discrimination”. in 2006, the un general assembly adopted resolution no. 251/60, which stated that the human rights council must carry out periodic global monitoring, according to each country, of the steps the government has done to safeguard human rights so that every member state in the un is subject to this procedure. furthermore, every four years, this monitoring is based on three reports; the first of which is by the state itself that is subject to monitoring, and the other two reports are in the form of supplementary information issued by un bodies, such as international ngos, international human rights institutes, as well as university and regional institutions. these reports may contain information about the human rights situation and people belonging to minorities in those countries (unga, resolution 251/60, 2006). however, the resolution highlights a perceived inadequacy in the un’s approach to safeguarding the rights of religious minorities. the critique centers on the resolution’s reports, suggesting they fall short of meeting the expectations of these minorities for two primary reasons. firstly, the reports are criticized for framing issues more as suggestions or observations about countries rather than obligating them to address the concerns of religious minorities as distinct communities. secondly, the comprehensive nature of reporting is seen as a hindrance, making it challenging for religious minorities to attain effective protection. for example, despite periodic global monitoring, concerns have been raised about religious discrimination, violence, and attacks against the hindu minority in bangladesh (report on international religious freedom: bangladesh, 2022). this prompts a critical examination of whether the un and the human rights council are fulfilling their intended roles in safeguarding religious minorities’ rights, raising questions about the effectiveness and focus of the monitoring process outlined in resolution no. 251/60. another aspect to consider is the potential lack of enforcement mechanisms within the resolution. while periodic global monitoring is outlined, the paragraph does not delve into whether there are consequences or actions taken if a country fails to meet the suggested measures for protecting human rights, especially those of religious minorities. the absence of clear repercussions might undermine the resolution’s effectiveness, as it could be perceived as lacking the means to ensure compliance. enhancing accountability with clear enforcement mechanisms, conducting independent reviews of state reports, increasing monitoring frequency, and developing focused mechanisms within the human https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 21 rights council can improve the protection of religious minorities. leveraging technology for real-time data collection, such as mobile applications that allow for reporting incidents of discrimination and violence in real-time, fostering international cooperation, and ensuring comprehensive and detailed supplementary reports will also address these weaknesses and ensure more effective safeguarding of minority rights. it is clear from the above that the protection of religious minorities under international instruments faces challenges due to broad definitions lacking specificity, leading to inconsistent recognition and protection. the udhr emphasizes individual rights, while the iccpr highlights collective rights essential for preserving group identities, creating a complex balance. instruments like the un declaration on the rights of minorities make progress but are limited by their non-binding nature and ambiguous language, and un monitoring mechanisms fall short in addressing the unique needs of religious minorities. to improve protection, precise definitions and stronger enforcement mechanisms are needed, such as legally binding treaties and clear repercussions for noncompliance. enhancing the language of international instruments to explicitly address the needs of religious minorities, including cultural heritage preservation, participation in decision-making, and protection from displacement, along with improved un monitoring through independent reviews and focused reporting, would provide better safeguards. 5.2. regional instruments from its early years in 1949, the “parliamentary assembly of the council of europe” acknowledged the need for broader safeguarding of national minorities’ rights. in 1961, the assembly recommended including a provision in an extra protocol to ensure certain rights for national minorities not enclosed by the “european convention for the protection of human rights and freedoms”, adopted in rome on november 4, 1950. in 1992, the director of the human rights commission, appointed by the committee of ministers, explored the possibility of establishing specific standards for the safeguarding of national minorities. on february 1, 1993, the parliamentary assembly of the council of europe adopted recommendation no. 1201 (1993), which included a definition of “national minority”5(european framework convention for the protection of national minorities (fcnm), 1995). the fcnm, adopted by the council of europe in 1995, is a significant regional tool emphasizing the protection of minorities. the convention aims to prevent inequality and discrimination against national minorities and provides strict procedures for their 5 recommendation 1201 (1993), additional protocol on the rights of minorities to the european convention on human rights. available at: https://assembly.coe.int/nw/xml/xref/xref-xml2htmlen.asp?fileid=15235. article 1 states “for this convention, the expression ‘‘national minority’’ refers to a group of persons in a state who: a. reside on the territory of that state and are citizens thereof; b. maintain longstanding, firm and lasting ties with that state; c. display distinctive ethnic, cultural, religious or linguistic characteristics; d. are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; e. are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.” https://doi.org/10.17561/tahrj.v23.8659 https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=15235 https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=15235 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 22 protection by the member states of the council of europe. additionally, addressing the protection of religious freedom, language, history, and culture of national minorities, as well as their freedom to associate with others based on the legal framework within the state, are also crucial issues (ringelheim, 2010). however, both hidayat and frowein contend that the fcnm lacks a precise definition of ‘national minority’. frowein asserts that member states are entrusted with this determination (frowein &bank, 1999). for instance, germany officially recognizes only two national minorities, the danes and the sorbians, yet extends the convention’s principles to other groups like german frisians, sinti, and roma (minority rights group, 2020), hidayat further argues that this ambiguity stems from the ‘margin of appreciation,’ allowing states to decide which minorities fall under the convention’s purview. as per article 3 of the advisory committee on the framework convention for the protection of national minorities (acfc), states are not obligated to use the term ‘national minority’ in their domestic legal frameworks to identify a relevant group (hidayat, 2013). although the existence of such a convention for the protection of minorities is positive, its scope is limited because it is specific to minorities in european countries and includes minorities in general under the term ‘national minorities’. however, minorities are divided into categories, namely religious minorities, ethnic minorities, and national minorities (hassan, 2022). the convention does not classify minorities, including religious minorities. furthermore, the reference to article 3 of the acfc, which allows states not to use the term ‘national minority’ in their domestic laws, adds another layer of complexity. this provision can lead to further ambiguity and inconsistency in the protection of religious minorities. states might adopt varying standards, which could result in unequal treatment of religious minorities across europe. article 3(2) of the fcnm grants individuals from national minorities the right to exercise their rights both individually and collectively. however, this article tends to generalize the rights of all national minorities without sufficiently recognizing the challenges faced by religious minorities as mentioned earlier such as restrictions on worship, the establishment of places of worship, and the right to manifest their beliefs publicly. for example, the pomaks in greece have reported pressures to conceal their religious identity to advance in their careers (topidi, 2021). while the article allows for collective rights, it does not explicitly mention the specific religious practices or institutional needs of these groups. more importantly, this article is inconsistent with article 27 of the iccpr, which is binding on states and emphasizes collective rights; rather, it merely recognizes the potential for the common exercise of rights, which is distinct from collective rights. frowein has therefore argued that how it recognizes religious groups. religious identity often carries significant importance, prompting a case for more explicit considerations to safeguard the rights and needs of religious minority groups within the broader framework of the convention’s definition (frowein, 1999). therefore, the fcnm should include explicit provisions for religious practices and institutional needs. this would ensure that unique issues, such as restrictions on worship and the establishment of places of worship, are clearly recognized and protected. harmonizing the fcnm with article 27 of the iccpr could provide a more robust framework for collective rights, addressing the gap between general rights and specific protections for religious minorities. additionally, incorporating explicit guidelines and mechanisms for the protection of religious identity would enhance the effectiveness of the fcnm in safeguarding the rights of these groups. https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 23 article 6 of fcnm states “the parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media”. although article 6 of the fcnm explicitly includes the phrase “all persons living in the territory,” which has the potential to benefit minorities, it lacks specific guidelines for determining how religious minority groups should receive state support to maintain their unique identities. for instance, in the case of the muslim community in france, the government has implemented policies such as the controversial ban on wearing religious symbols in public schools (dille, 2023). while these measures are often justified on the grounds of maintaining public order and national values, they can inadvertently marginalize religious minorities and hinder their ability to express their cultural identity. to uphold the rights of religious minorities effectively, it is crucial to establish clear frameworks that outline the state’s responsibilities in supporting cultural and religious practices. for instance, the advisory committee of the fcnm emphasizes that states should facilitate the construction of places of worship and ensure access to religious education for minority groups (topidi, 2021). these measures are vital for preserving cultural identity and fostering mutual respect among diverse populations. article 3(1) states, “every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such, and no disadvantage shall result from this choice or from the exercise of the rights connected to that choice.” although this article can benefit religious minorities within the framework of an ethnic minority, it is important to recognize that religious minorities can differ significantly from ethnic minorities, as a person may belong to a religious group rather than an ethnic group, as mentioned earlier. for example, in a diverse country like india, where various religious communities coexist, the distinction between ethnic and religious minorities becomes evident. while ethnic minorities like the nagas have distinct cultural and linguistic identities, religious minorities such as muslims, sikhs, or christians are defined by their religious beliefs rather than their ethnicity (pahrü pou, 2022; stausberg et al., 2023). however, if the article focuses solely on the protection of national minorities, the position and characteristics of religious minorities may not be adequately recognized. therefore, it is crucial to address the distinct needs of religious minorities alongside those of national minorities. a common solution would be to amend the legal frameworks to explicitly include protections for both national and religious minorities. article 3(1) could be revised to state: “every person belonging to a national or religious minority shall have the right to freely choose to be recognized or not recognized as such, and no disadvantage shall result from this choice or from the exercise of the rights connected to that choice. states shall take effective measures to ensure that both national and religious minorities receive adequate support to maintain their cultural and religious practices and to ensure their full and equitable participation in society.” another regional instrument adopted by the council of europe in 1992 was the european charter for regional or minority languages (ecrml). the charter aimed to protect the regional and minority languages settled and spoken in europe. however, https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 24 it can be said that this charter did not address the groups of immigrants who speak differently from the countries they migrated to. in other words, citizens who migrated to europe and are now residents, even those outside europe, could not benefit from this charter (de groot, 2019). however, this observation is more logical in suggesting that the ecrml might have limitations in addressing linguistic diversity among immigrant populations. while the charter focuses on safeguarding regional and minority languages within european borders, its scope appears insufficient in extending protection to the languages spoken by immigrant communities residing in europe. for instance, if someone from asia moves to europe and speaks a language different from the majority language in their new european country, the charter may not cover or protect that immigrant’s language rights. the charter is primarily focused on safeguarding the regional and minority languages that have historical roots within european regions. therefore, recognizing and accommodating the linguistic rights of immigrants could enhance the effectiveness of such instruments. there is also a concern about the lack of consideration for religious minorities in the charter. while it addresses the protection of linguistic diversity among immigrants, it does not touch upon the status or protection of religious minorities. this is because the charter’s scope is specifically tailored to the preservation and promotion of linguistic rights, rather than encompassing broader minority rights issues such as those related to religion. the protection of religious minorities and their practices would typically fall under the purview of other legal frameworks, such as the european convention on human rights (echr), its protocols, and the fcnm, which specifically address the right to freedom of thought, conscience, and religion. therefore, criticizing the charter for its lack of attention to religious practices or the rights of religious minorities among immigrants may be misplaced, as it falls outside the charter’s intended agenda, which primarily revolves around linguistic diversity among traditional minorities. according to article 9 of the echr, everyone has the right to think, believe, and practice their religion freely. this includes the freedom to change one’s religion or belief and to express it publicly or privately, alone or with others, through worship, teaching, practice, and observance. however, these freedoms may be restricted by law if it is necessary in a democratic society to protect public safety, order, health, morals, or the rights and freedoms of others. although, the echr provides important protections for religious minorities through key provisions like freedom of religion and non-discrimination, as mentioned earlier, criticisms include the wide “margin of appreciation” granted to states, lack of specific minority rights, and challenges in enforcement. for example, in the karaduman v. turkey case which involved a turkish university student who was denied her graduation certificate because she refused to provide a photograph of herself without wearing an islamic headscarf. the student argued that this refusal violated her right to freedom of religion under article 9 of the echr. in its 1993 decision, the european commission of human rights (which preceded the european court of human rights (ecthr)) rejected the student’s claim. the commission held that the university’s requirement for a headscarf-free photograph did not constitute an interference with the student’s right to freedom of religion. the commission reasoned that the refusal to issue the certificate was based on a generally https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 25 applicable regulation, not a specific targeting of the student’s religious beliefs. it found that the student could still manifest her religion in other ways, and that the university’s interest in maintaining a secular image outweighed the student’s individual interest (karaduman v. turkey, 1993). this decision has been criticized by some scholars as demonstrating the european court’s overly deferential approach to state restrictions on religious expression, particularly for religious minorities. arai-takahashi criticized that the “margin of appreciation” doctrine allowed the court to grant a wide latitude to turkey in balancing secularism and individual religious rights (arai-takahashi 2002). baderin and ssenyonjo also argue that if a person’s wearing of a headscarf does not pose a threat to public safety, priority should be given to ensuring religious freedom, such as by restoring university regulations. this principle is clearly outlined in both echr and the iccpr (baderin & ssenyonjo, 2010). these perspectives highlight the need for the court to protect religious freedoms more vigorously, ensuring that individual rights are not unduly compromised by state-imposed restrictions. these criticisms provide valuable insight into the limitations of the current court approach and suggest the need for greater clarity and strength in protecting religious freedoms provided they do not threaten the country’s security, especially for minority groups. ferri argues that the court’s reliance on universal principles provides weak protection for religious minorities due to its “liberal and individualistic approach.” he highlights that the court tends to focus on the individual’s right to exercise freedom of religious belief rather than on their adherence to a minority religion (ferri, 2021). however, ferri’s argument raises valid concerns about the court’s potential oversight of the collective rights of minority groups in favour of individual liberties. therefore, the court could develop a stronger framework that clearly incorporates both individual and collective rights by referring to instruments such as the udhr and iccpr, which includes guidelines recognizing the challenges faced by minority groups. examining specific cases could also help identify where collective rights were overlooked and suggest improvements. engaging with minority groups for their perspectives, developing hybrid models that balance individual and collective protections, and advocating for legislative reforms are essential steps to ensure protection of religious minorities. article 22 of the european charter of fundamental rights (cfr) emphasizes the protection of multiculturalism, religion, and linguistics, stating, “cultural, religious, and linguistic diversity shall be respected.” this highlights the significance of cultural, religious, and linguistic diversity, emphasizing the need for respect. while it acknowledges the importance of preserving multiculturalism, religion, and languages, it is noteworthy that this article also lacks explicit mention of safeguarding the rights of religious minorities. this omission raises questions about whether the charter adequately considers the specific concerns and protections required for these vulnerable groups within the broader context of cultural diversity. for instance, consider a scenario where a religious minority faces discrimination or persecution within a member state of the european union. article 22’s general commitment to respecting cultural, religious, and linguistic diversity might not offer sufficient protection for the targeted religious community. the case of an iraqi citizen burning a quran in front of a mosque in stockholm, sweden (berry, 2023), could be cited as an example of the limitations of https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 26 article 22 of the european charter of fundamental rights. in this context, the incident may underscore the potential shortcomings of the article in addressing instances of religious intolerance or hate crimes against religious minorities. it is even a violation of article 6 of the fcnm, mentioned earlier, which emphasizes the spirit of coexistence among all those living in a territory. a crucial regional tool for safeguarding minorities is the “african charter on human and peoples’ rights.” similar to the international instruments mentioned earlier, this charter underscores the protection of minorities in the context of general principles, as articulated in article 2. the article states, “every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present charter without distinction of any kind, such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth, or other status.” however, finding explicit protection for the minority concept in this charter is challenging due to diverse populations with entirely different minorities. essentially, the population comprises various ethno-linguistic groups, resembling an indigenous population where none has formed a majority. for instance, there are thousands of african nations, each with distinct linguistic and cultural dialects, encompassing ethnolinguistic groups like afroasiatic, khoisan, niger-congo, and nilo-saharan (“list of ethnic groups of africa”, n. d). this complexity results in the charter not providing robust legal protection for religious minorities or minorities in general. rather, it defines them as individuals rather than recognizing them as distinct communities. these dual challenges underscore the intricate task the charter faces in safeguarding minority rights within the diverse sociocultural landscape of africa. it is clear that the existing regional legal frameworks, such as the framework convention for the protection of national minorities (fcnm), the european charter for regional or minority languages (ecrml), and the european convention on human rights (echr), have significant limitations in adequately protecting religious minorities. these instruments often lack precise definitions and specific provisions for religious minorities, leading to ambiguity and inconsistent protection across member states. the fcnm, while comprehensive, fails to address the needs of religious minorities, and the echr’s broad “margin of appreciation” allows states to impose restrictive measures on religious expression. additionally, the african charter on human and peoples’ rights faces challenges in safeguarding minority rights due to africa’s diverse ethno-linguistic landscape. 6. conclusion in conclusion, this paper has explored the multifaceted challenges in defining and protecting religious minorities within the context of international and regional legal frameworks. the literature review revealed significant gaps and debates in the existing research, highlighting the need for more effective approaches to safeguarding religious minorities. defining religious minorities remains a contentious issue, influenced by varying legal, political, and social perspectives. the lack of a universally accepted definition creates difficulties in implementing consistent protections, often leading to ambiguities and inconsistencies in safeguarding the rights of these groups. the diverse https://doi.org/10.17561/tahrj.v23.8659 sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 27 interpretations and applications of what constitutes a religious minority underscore the need for clearer definitions that reflect the identities and challenges faced by these groups. the examination of international instruments, including the udhr, iccpr, and the ecthr’s approach to religious freedom, revealed both strengths and limitations. while these frameworks provide foundational protections for religious freedom and non-discrimination, they often fall short in meeting the specific needs and challenges of religious minorities. the ecthr’s reliance on the “margin of appreciation” doctrine, for instance, has led to varied and sometimes restrictive interpretations of religious rights, particularly affecting minority groups. similarly, regional instruments such as the fcnm, ecrml, and the african charter on human and peoples’ rights were found to have significant limitations. the fcnm, despite its wide scope, fails to explicitly address the needs of religious minorities and leaves much discretion to member states, leading to inconsistent protections. the ecrml’s focus on linguistic diversity neglects the broader issues of religious minority rights, while the african charter’s general principles struggle to provide robust protection within the continent’s diverse ethnolinguistic landscape. several key challenges and specific needs have been identified in the protection of religious minorities. one major challenge is the interference of the majority in the affairs of religious minorities, which often exacerbates their vulnerabilities and undermines their autonomy. another challenge is the lack of explicit legal provisions and clear frameworks to support the cultural and religious practices of minorities, such as facilitating the construction of places of worship and ensuring access to religious education. additionally, the ongoing issue of inconsistencies in the interpretation and application of protections across different jurisdictions further complicates the safeguarding of religious minorities. to tackle these challenges and meet the needs of religious minorities, several recommendations are proposed. first, the position of religious minorities must become a common issue for both the state and religious minorities themselves. this involves ensuring that religious minorities have legitimate representation to convey their genuine voice on all platforms, serving their interests broadly. second, one of the factors that can worsen the problems of religious minorities is the interference of the majority in their affairs. this interference, regardless of its nature, often exacerbates the vulnerabilities of religious minorities and undermines their autonomy. third, an annual conference should be held to deepen the coexistence of religious diversity. this conference should involve police, international legal institutions, and religious educators to foster mutual understanding and cooperation. fourth, the education system should incorporate specific methods to teach communities about the history, characteristics, and concepts of coexistence, tolerance, and peaceful cohabitation. special attention should be given to respecting and understanding each other’s religion within all educational institutions. in summary, while significant strides have been made in the legal protection of religious minorities, there remains a critical need for more precise definitions, specific legal provisions, and practices that address their needs and challenges. by implementing these recommendations, international and regional frameworks can better safeguard the rights of religious minorities to prevent social and economic instability in the international community. https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 28 references books arai-takahashi, y., & arai, y. 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(2015, april 8). statement of the prosecutor of the international criminal court, fatou bensouda, on the alleged crimes committed by isis. https://www.icc-cpi.int/news/statement-prosecutor-international-criminalcourt-fatou-bensouda-alleged-crimes-committed-isis. ungs. education, language and the human rights of minorities, report of the special rapporteur on minority issues, 2020, a/hrc/43/47, available at: https://www. right-to-education.org/sites/right-to-education.org/files/resource-attachments/ education%2c%20language%20and%20the%20human%20rights%20of%20 minorities_2020_en.pdf. international instruments council of europe, european convention for the protection of human rights and fundamental freedoms, as amended by protocols nos. 11 and 14, 4 november 1950, ets 5, available at: https://www.refworld.org/docid/3ae6b3b04.html. https://doi.org/10.17561/tahrj.v23.8659 https://www.wikiwand.com/en/list_of_ethnic_groups_of_africa#references https://www.wikiwand.com/en/list_of_ethnic_groups_of_africa#references https://cfri-irak.com/en/article/2003-2022-the-impossible-shiite-power-in-iraq-2022-06-01 https://cfri-irak.com/en/article/2003-2022-the-impossible-shiite-power-in-iraq-2022-06-01 https://minorityrights.org/country/germany/ https://minorityrights.org/country/germany/ https://morungexpress.com/if-indians-canbe-indian-nagas-can-be-naga-too https://morungexpress.com/if-indians-canbe-indian-nagas-can-be-naga-too https://www.bbc.com/news/world-middle-east-60714086 https://www.livelaw.in/top-stories/article-370-supreme-court-abrogation-of-special-status-of-jammu-and-kashmir-244198 https://www.livelaw.in/top-stories/article-370-supreme-court-abrogation-of-special-status-of-jammu-and-kashmir-244198 https://www.livelaw.in/top-stories/article-370-supreme-court-abrogation-of-special-status-of-jammu-and-kashmir-244198 https://research.manchester.ac.uk/en/publications/religious-minorities-conceptual-perspectives https://research.manchester.ac.uk/en/publications/religious-minorities-conceptual-perspectives https://www.state.gov/reports/2022-report-on-international-religious-freedom/bangladesh/ https://www.state.gov/reports/2022-report-on-international-religious-freedom/bangladesh/ https://www.state.gov/reports/2023-report-on-international-religious-freedom/russia/ https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-fatou-bensouda-alleged-crimes-committed-isis https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-fatou-bensouda-alleged-crimes-committed-isis https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/education%2c%20language%20and%20the%20human%20rights%20of%20minorities_2020_en.pdf https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/education%2c%20language%20and%20the%20human%20rights%20of%20minorities_2020_en.pdf https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/education%2c%20language%20and%20the%20human%20rights%20of%20minorities_2020_en.pdf https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/education%2c%20language%20and%20the%20human%20rights%20of%20minorities_2020_en.pdf https://www.refworld.org/docid/3ae6b3b04.html sanh shareef qader the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 33 council of europe, framework convention for the protection of national minorities, 1 february 1995, ets 157, available at: https://www.refworld.org/docid/3ae6b 36210.html. human rights watch. (2023). iraq events of 2022. https://www.hrw.org/world-report/2023/ country-chapters/iraq. recommendation 1201 (1993), additional protocol on the rights of minorities to the european convention on human rights. https://assembly.coe.int/nw/xml/xref/ xref-xml2html-en.asp?fileid=15235. un general assembly, convention on the rights of the child, united nations, treaty series, vol. 1577, p. 3, 20 november 1989. https://www.refworld.org/legal/ agreements/unga/1989/en/18815. un general assembly, declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, 3 february 1992, a/res/47/135. https://www.refworld.org/docid/3ae6b38d0.html. un general assembly, human rights council: resolution / adopted by the general assembly, 3 april 2006, a/res/60/251. https://www.refworld.org/docid/ 4537814814.html. un general assembly, international covenant on civil and political rights, 16 december 1966, united nations, treaty series, vol. 999, p. 171.https://www.refworld.org/ docid/3ae6b3aa0.html. un general assembly, universal declaration of human rights, 10 december 1948, 217 a (iii). https://www.refworld.org/docid/3ae6b3712c.html. un general assembly. (1981, november 25). declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief (a/res/36/55). https://www.refworld.org/legal/resolution/unga/1981/en/5952. case law karaduman v. turkey, 16278/90, 1993. https://www.scribd.com/document/367747436/ karaduman-v-turkey. theses al-tayyib, b. a. (2012). the rights of religious minorities: a comparative study between islamic law and international law [master’s thesis, adrar university]. https://dspace.univ-adrar.edu.dz/jspui/bitstream/123456789/832/1/%d8% ad%d9%82%d9%88%d9%82%20%d8%a7%d9%84%d8%a7%d9%82% d9%84%d9%8a%d8%a7%d8%aa%20%d8%a7%d9%84%d8%af%d9% 8a%d9%86%d9%8a%d8%a9.pdf. costa, m. (2008). towards an open definition of genocide: an inquiry into the construction of “ethnic” conflict in darfur [master’s thesis, utrecht university]. https:// repository.gchumanrights.org/items/32406670-1bc6-4107-95d4-95e475b070c2. https://doi.org/10.17561/tahrj.v23.8659 https://www.refworld.org/docid/3ae6b36210.html https://www.refworld.org/docid/3ae6b36210.html https://www.hrw.org/world-report/2023/country-chapters/iraq https://www.hrw.org/world-report/2023/country-chapters/iraq https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=15235 https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=15235 https://www.refworld.org/legal/agreements/unga/1989/en/18815 https://www.refworld.org/legal/agreements/unga/1989/en/18815 https://www.refworld.org/docid/3ae6b38d0.html https://www.refworld.org/docid/4537814814.html https://www.refworld.org/docid/4537814814.html https://www.refworld.org/docid/3ae6b3aa0.html https://www.refworld.org/docid/3ae6b3aa0.html https://www.refworld.org/docid/3ae6b3712c.html https://www.refworld.org/legal/resolution/unga/1981/en/5952 https://www.scribd.com/document/367747436/karaduman-v-turkey https://www.scribd.com/document/367747436/karaduman-v-turkey https://dspace.univ-adrar.edu.dz/jspui/bitstream/123456789/832/1/%d8%ad%d9%82%d9%88%d9%82%20%d8%a7%d9%84%d8%a7%d9%82%d9%84%d9%8a%d8%a7%d8%aa%20%d8%a7%d9%84%d8%af%d9%8a%d9%86%d9%8a%d8%a9.pdf https://dspace.univ-adrar.edu.dz/jspui/bitstream/123456789/832/1/%d8%ad%d9%82%d9%88%d9%82%20%d8%a7%d9%84%d8%a7%d9%82%d9%84%d9%8a%d8%a7%d8%aa%20%d8%a7%d9%84%d8%af%d9%8a%d9%86%d9%8a%d8%a9.pdf https://dspace.univ-adrar.edu.dz/jspui/bitstream/123456789/832/1/%d8%ad%d9%82%d9%88%d9%82%20%d8%a7%d9%84%d8%a7%d9%82%d9%84%d9%8a%d8%a7%d8%aa%20%d8%a7%d9%84%d8%af%d9%8a%d9%86%d9%8a%d8%a9.pdf https://dspace.univ-adrar.edu.dz/jspui/bitstream/123456789/832/1/%d8%ad%d9%82%d9%88%d9%82%20%d8%a7%d9%84%d8%a7%d9%82%d9%84%d9%8a%d8%a7%d8%aa%20%d8%a7%d9%84%d8%af%d9%8a%d9%86%d9%8a%d8%a9.pdf https://repository.gchumanrights.org/items/32406670-1bc6-4107-95d4-95e475b070c2 https://repository.gchumanrights.org/items/32406670-1bc6-4107-95d4-95e475b070c2 redefining protection: challenges and solutions in safeguarding religious minorities within international and regional legal frameworks the age of human rights journal, 23 (december 2024), e8659 issn: 2340-9592 doi: 10.17561/tahrj.v23.8659 34 received: 2nd february 2024 accepted: 19th august 2024 https://doi.org/10.17561/tahrj.v23.8659 redefining protection: challenges and solutions in safeguarding religious minorities within internat 1. introduction 2. research methodology 3. literature review 4. challenges and perspectives in defining religious minorities 5. critical evaluation of international and regional instruments for safeguarding religious min 5.1. international instruments 5.2. regional instruments 6. conclusion references books journals websites reports international instruments case law theses role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 1 role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain silvia avellaneda-san-antonio1 abstract: this article examines the articulation and role of measurements and indicators in the national action plans on business and human rights (naps). we first provide a theoretical perspective based on the examination of a wide range of literature. we then analyse how the naps have been implemented in practice in spain and finland. the results demonstrate an enhancement of the human rights indicators for business and provide insights into how to use indicators for improving the effectiveness of the naps. keywords: human rights indicators; human rights indicators for business; human rights impact assessment; national action plans on business and human rights (naps); un guiding principles on business and human rights (ungps). summary: 1. introduction. 2. concepts: naps and hris. 2.1. naps. 2.2. hris. 3. role of hris in naps. 3.1. hribs and nap process. 3.2. hribs and nap contents. 3.3. naps as a framework for establishing hrib systems. 4. comparative experiences: finland and spain. 4.1. finland. 4.2 spain. 5. conclusion and discussion. 1. introduction the united nations (un) guiding principles on business and human rights (ungps) constitute the main framework for ensuring that companies respect human rights. to affirm their compliance, the national action plans on business and human rights (naps)2 have been one of the tools, framed in soft law, which has been most widely implemented in recent years. the framing of ungps has recently completed 10 years, and despite the difficult journey, the discipline of human rights has progressed, although it still has a long way to go. the development in these 10 years indicates a lack of concrete results and specific achievements in terms of human rights. precise information, such as that embedded in indicators and measurements, is needed. the potential of the human rights indicators (hris) to monitor improvements in human rights and compliance with international standards is well established, at least on 1 assistant professor of political science and public administration. facultad de trabajo social de cuenca. universidad de castilla – la mancha. silvia.avellaneda@uclm.es. https://orcid.org/0000-00026795-4971 2 these plans will be referred to as naps. later in the article, we will also mention general human rights plans, which we will refer to as national human rights plan of action, npas (or with their specific identification in each country). http://10.17561/tahrj.v20.7500 mailto:silvia.avellaneda@uclm.es. https://orcid.org/0000-0002-6795-4971 https://orcid.org/0000-0002-6795-4971 role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 2 paper. another question is their implementation and practical application. the un has long established the methodological framework of the hris, which can be applied to business activity and corporate social responsibility. indeed, the development of indicators is one of the most promising developments in the field of business and human rights. several initiatives of hris for business (hribs)3 have been undertaken, some of which are discussed later. in this article, we first (section 3) compile and analyse the main international guidelines, directives, reports, and references on naps and hris to concretise the role and contributions of hribs to the naps, both in the process of the plan and in its contents. the hribs are fundamental to acquiring the necessary information to design the naps, as well as its follow-up and assessment, in terms of not only aims but also real and specific achievements. by contrast, the nap can be a reference framework for implementing tools to measure the impact of business activity and the level of respect for human rights in businesses, as well as for the protection of states. this analysis is complemented by a practical overview (section 4), presenting two examples of the articulation of hribs in naps in two european countries with different traditions, although it is not an exhaustive investigation of the picture in europe. finland has a stronger human rights background and was one of the first to adopt naps in europe. similarly, hris have been present in finland since the first national human rights plan of action (npa), and the country has developed initiatives and reports that have implemented the hrib systems. by contrast, spain has adopted the nap more recently and has a lower focus on human rights in its policies. the spanish nap has important shortcomings, including a lack of monitoring and fewer indicators, and has not been evaluated or updated. despite this, spain has an important precedent in the human rights plan of the madrid city council. we conclude that europe has important hrib systems and backgrounds in its npas. however, continuing to work on hrib initiatives is necessary. more importantly, ensuring that the naps processes are based on hribs, and their contents include hrib initiatives and systems that encourage and specify the risk assessments of companies and their accountability for the impact of their activities, is critical. although hris are essential in human rights-based plans and policies and europe has precedents for npas that have successfully articulated hris, in-depth studies on the potential and practice of using measures, data and, hris in naps are lacking. this article seeks to fill this gap and provide concrete suggestions on what, how, and where indicators can contribute to the process and contents of naps and make a novel contribution to the literature by pioneering the application of hris in the theory and practice of naps. 3 note that we will refer to human rights indicators in general as hris and to those applied and specific to companies and their activity as hribs. http://10.17561/tahrj.v20.7500 silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 3 2. concepts: naps and hris 2.1. naps in 2005, un secretary-general kofi annan appointed harvard professor john ruggie to clarify the roles and responsibilities of states, companies, and other social actors in the business and human rights sphere.4 in 2008, the result was the ruggie report (un human rights council [unhrc] 2008) that articulated the three pillars of the ungps: the state duty to protect, the corporate responsibility to respect, and access to remedies. these principles were endorsed by the unhrc in june 2011 and the same resolution (unhrc 2011) established a working group on business and human rights (unwg). the ‘guiding principles on business and human rights: implementing the united nations “protect, respect and remedy” framework’ of 2011 (office of the un high commissioner for human rights [ohchr] 2011, p. 1) are grounded in recognition of: (a) states’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms; (b) the role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; (c) the need for rights and obligations to be matched to appropriate and effective remedies when breached. more than 10 years later, its implementation has progressed, although it still has a long way to go (unwg 2021). by contrast, the concept of npas was developed as part of the world conference on human rights held in vienna in 1993. part c, which includes the strengthening and development of human rights, highlights the importance of national tools and recommends that: ‘each state consider developing a national plan of action identifying the measures necessary for that state to improve the promotion and protection of human rights’ (un general assembly 1993a, para 71). the council of europe and its commissioner for human rights also recommend and encourage the creation of national plans, analyse existing ones, or participate in their creation (council of europe 2014). specifically, naps are one of the fundamental tools for the implementation of ungps. the unwg ‘strongly encourages all states to develop, enact and update periodically a national action plan on business and human rights’5 as part of the responsibility of states to implement ungps, and in 2016, this group published ‘the guidance on national action plans on business and human rights’, a world reference for naps (unwg 2016). the naps translate the ungps into concrete action with local and global implications (unwg 2014). as de felice and graf (2015, p. 64) point out, naps allow the adaptation of the ungps to specific contexts while maintaining the integrity of 4 see the background in un human rights council document: ‘the un “protect, respect and remedy” framework for business and human rights’ (unhcr 2010). 5 national action plans on business and human rights, unwg [accessed 13 june 2022]. http://10.17561/tahrj.v20.7500 https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 4 the three pillars, provide information on potential mismatches between state obligations and state practices, limit the challenges of decentralised government, empower local pro-human rights actors, and ensure that public bodies have adequate knowledge and capacities. however, to be effective, they must meet certain criteria, such as being based on a comprehensive baseline study/gap analysis, involving the stakeholders, and being concrete to the maximum possible extent (de felice & graf 2015). a total of 26 states have produced a nap, 4 have included a ‘business and human rights’ chapter in their npas, and 27 are in the process of developing or have begun developing a nap.6 in europe, 19 states have a nap (15 in the european union [eu]) and 6 are in the process.7 in the eu, the ‘action plan on human rights and democracy 2020–2012’, is the instrument that brings together the european strategy on human rights; it devotes a section to the business sector and its relationship with human rights, and insists on the need to implement and develop naps in member states (eu european commission 2020, sec. 3.5.a). despite progress, the results of the implementation of naps in europe are not convincing. the eu in its report on the implementation of the ungps (eu directorategeneral for external policies policy department 2017) points out that the majority of them are general, declaratory, and stock-taking in nature, rather than forward-looking and actionoriented. the major weakness identified in the processes of naps is the failure to conduct national baseline assessments (nba) to inform the plans’ content or not use it to inform the process and its content. notably, most naps in the eu focus on external actions rather than on steps necessary to improve domestic situations and concentrate on describing what has been achieved to date, rather than on setting out action points for the future. further, they do not provide sufficient options to ensure access to remedial measures (eu directorategeneral for external policies policy department 2017). similarly, the assessment by the international corporate accountability roundtable (icar) also points to the failure to conduct nbas to inform the content of the naps, to sufficiently explore regulatory options to ensure adequate human rights protections, and access to remedy, with the majority of the assessed naps only briefly addressing access to remedy (icar, eccj & dejusticia8 2017). de felice and graf (2015) indicate similar shortcomings: ‘no country has yet conducted an independent and comprehensive analysis of the status quo’ (p. 64); naps focus too heavily on preventive measures and are largely silent on how to improve access to remedy and ungps ‘are the ceiling, not the floor’ of human rights protection (p. 65). in short, the effectiveness of the naps is related to their capacity to produce results, beyond mere declarations of intent. moreover, as we illustrate later, naps must have diagnostic tools that help companies to comply with their commitments, analyse these 6 source: national action plans on business and human rights, unwg [accessed 26 january 2023]. 7 calculated from the information from council of europe, unwg, and globalnaps [accessed 26 january 2023]. 8 icar: international corporate accountability roundtable; eccj: european coalition for corporate justice; dejusticia: center for the study of law, justice and society. http://10.17561/tahrj.v20.7500 https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/national-action-plans https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights https://globalnaps.org/about/ silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 5 results, and provide information to improve the naps themselves and their measures. however, we need to recognise that the discussion is about public policy and in the context of soft law, with all its limitations on justiciability.9 therefore, aiming for legal tools to hold businesses legally accountable for their global human rights impacts is essential.10 2.2. hris green (2001) defined hri as ‘a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation’ (p. 1065). scholars agree11 that hris assess the gap between the legal formulation of rights and their concrete reality and the extent to which the states uphold their human rights commitments; they are a measure that reflects the status of a right and the fulfilment by a state or institution of obligations to respect, protect, and fulfil that right. the ohchr is the primary institution involved in the development of hris. since the 1990s, the ohchr has launched several initiatives (e.g. working groups, seminars, consultations) and produced guides and documents aimed at defining, designing, clarifying, promoting, and encouraging hri implementation and use in the tools for monitoring, compliance, and promotion of human rights.12 the culmination of this process was the publication of the seminal document ‘human rights indicators. a guide to measurement and implementation’ in 2012 (ohchr 2012a). this guide is a pioneer in theoretical and methodological development and a reference for the construction and implementation of hris, not only in international monitoring instruments but also in national systems. hri is defined as: ‘specific information on the state or condition of an object, event, activity or outcome that can be related to human rights norms and standards; that addresses and reflects human rights principles and concerns; and that can be used to assess and monitor the promotion and implementation of human rights’ (ohchr 2012a, p. 16). hris should directly or indirectly report on the state of a right and should be a tool for enforceability. they should not only aim to improve the social situation of citizens (the objective of development indicators, for example) and guide public policies (as is partly the case with socioeconomic indicators) but also become a tool that contributes 9 see limitations of naps in márquez carrasco, c. (2022). 10 see in this regard conclusions of augenstein (2022). 11 see approaches such as chapman (1996), green (2001), welling (2008), landman & carvalho (2009), or abramovich & pautassi (2010). 12 central to this process were the reports of türk (1992), the 1993 specific preparatory seminar for the vienna conference (un general assembly 1993b), and the ohchr (2006) and ohchr (2008) reports on indicators for monitoring compliance with international human rights instruments. in addition, the work of the committees and treaty bodies, which, through their observations, recommendations, or reporting guidelines have delimited the minimum and measurable contents, variables, and indicators of many rights, as well as the obligation to segment data by possible grounds of discrimination or to reflect progress or setbacks, has also been essential. http://10.17561/tahrj.v20.7500 role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 6 to the accountability and demand for human rights. similar to a few other tools, hris reflect, summarise, and translate the degree of compliance and respect for human rights, their principles (non-discrimination, progressiveness, and effectiveness), and minimum contents—both in an international and national context—into concrete magnitudes. however, hris must meet several requirements and must be disaggregated, periodic, contextualised, relevant, and comparable. in addition, an internationally accepted framework exists based on the need to measure commitments-efforts-results and on the use of uniform categories of indicator groups for all rights. thus, indicators should be structural, process, and outcome indicators.13 after the publication of the 2012 guide, interest in hris seems to have waned. mcinerney-lankford and sano (2021) found that references to hris in human rights journals have declined in recent years. however, the same authors suggest the need to revive their potential, especially in development and other areas such as the private sector and business. as de felice (2015, p. 518) punctuates, the traditional method to assess a company's human rights performance is to examine the individual level, through concrete cases of possible human rights violations: ‘how is one to know whether abusive behaviour in a specific case is the rule or just an exception? how is one to compare and aggregate information from different projects, factories, countries of operation, and so on? the move from the specific to the general is where business and human rights indicators step in’. the general hri framework refers to the responsibility, obligations, and commitments of states, and the application of this general framework to business is a major methodological and operational challenge. hribs should measure and concretise corporate social responsibility, human rights due diligence, and the ungps. however, this adaptation poses multiple challenges, some of which concern the access to and production of data, the adaptation of indicators to local and business contexts, or the need to measure beyond the minimum compliance. indicators should not limit their focus to those human rights issues that have significant financial consequences for the company or purely philanthropic activities (de felice, 2015). as indicated above, hris should measure commitments-efforts-results; when applied to the company, it involves measuring policy commitments, due diligence and remediation, and adverse human rights impacts directly or indirectly attributable to the company (as de felice (2015) rightly points out, this is the most difficult and controversial). in recent years, several institutions have developed tools to measure companies' respect for human rights: management tools, reporting frameworks, sustainability indices and standards, human rights impact assessment tools, and ethical ratings,14 and most of 13 developed primarily, as highlighted before, in the ohchr (2012a) guidance and in the work of the committees and treaty bodies. in this regard, see avellaneda’s work on requirements, potentialities, and utilities: avellaneda (2019) and avellaneda (2020). 14 see this categorisation of tools in de felice (2015). see also other compilations in dihr (2020) and o´brien (2018). http://10.17561/tahrj.v20.7500 silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 7 them incorporate and develop hribs. for instance, the ftse4good15 and dow jones sustainability index16 include human rights criteria in their performance indicators. hrib is an essential tool for ‘businesses, national human rights institutions, civil society groups, governments, consumers, and others, to evaluate whether businesses have effective human rights due diligence measures in place across their operations—including human resources, health and safety, product quality and marketing, communities, security, government relations, and supply-chain management’.17 however, as the danish institute for human rights (dihr) notes, the use of hribs ‘is still an evolving field’ (dihr 2020, p. 77) full of barriers and problems in their application, and as de felice (2015) points out, the question is not whether or not to use hribs, but how to use them and produce valid and emancipatory measures of corporate respect for human rights. we can distinguish two types of indicators or methods of adapting the ohchr framework of hris to naps, ungps, and corporate accountability. the first one, nap indicators, refers to the quantification of the objectives and measures proposed in the plan and the level of fulfilment of the nap itself. naps should include specific, measurable, achievable, realistic, and time-bound (smart) actions (dihr & icar 2014) and indicators to evaluate success and to ensure actions are fully smart.18 in this sense, the assessments and the scholarly literature point to the lack of such indicators in the naps.19 secondly, hribs measure compliance with the ungps, their pillars and due diligence— either because of the application of a nap or other tools. a good example of such an indicator is the corporate human rights benchmark—core ungp indicators (developed by the corporate human rights benchmark [chrb]) that comprises approximately 60 indicators across 5 different themes (chrb 2021). however, in a more general application, hribs are concerned with international standards, measure companies' respect for human rights, and focus on their obligation to identify risks and be accountable for the impact and results of their activity. for example, the business & human rights resource centre has developed the platform for human rights indicators for business, which sets out 1,000 indicators that enable companies and other stakeholders to assess corporate policies, procedures, and practices on human rights.20 both versions of the hribs are complementary, interdependent, and many of them overlap. further, as we analyse later in this article, they are a tool for naps (as well as for other entities such as national human rights institutions). 15 financial times stock exchange, ftse russell [accessed 15 june 2022]. 16 s&p dow jones indices, dow jones sustainability world index [accessed 15 june 2022]. 17 business & human rights resource centre [accessed 15 june 2022]. 18 see the application of these types of indicators to the analysis of various naps in dihr (2021). 19 see, e.g. dihr (2018) and o´brien, ferguson & mcvey (2022). 20 platform for human rights indicators for business, business & human rights resource centre [accessed 15 june 2022]. http://10.17561/tahrj.v20.7500 https://www.ftserussell.com/products/indices/ftse4good https://www.spglobal.com/spdji/en/indices/esg/dow-jones-sustainability-world-index/#overview https://old.business-humanrights.org/en/platform-for-human-rights-indicators-for-business-hrib https://old.business-humanrights.org/en/platform-for-human-rights-indicators-for-business-hrib role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 8 3. role of hris in naps 3.1. hribs and nap process considering hris throughout the process of any human rights-based public policy or national plan of action is essential. similar to any plan, it needs information for decisionmaking at all stages, and indicators provide concise and relevant information. if well designed, indicators account for basic principles such as the situation of vulnerable groups (non-discrimination), compliance with minimum standards for all rights (effectiveness), and whether the situation of rights has been improving relative to the capacity of each country (progressivity). further, by examining the nap process, we can establish two stages or moments of the plan where hribs are essential: in the preliminary diagnosis and the evaluation of the plan; in other words, in the nba and the assessments, focusing on the impact, outcomes, and achievements of the plan. an important point in the preparation of any plan, action or policy is the preparation of a prior diagnosis, situation, or needs report. in 2002, the ohchr, in its handbook on npas, already recommended this to examine the legal framework, the institutions for the protection of human rights, and the situation of human rights education and awareness raising; however, it should also focus on the situation of vulnerable groups (ohchr 2002). although incorporating indicators in any assessment seems obvious and important, this cannot be overemphasised; the above-mentioned handbook explicitly highlights the role of social indicators21 in the baseline study (ohchr 2002). the unwg recommends obtaining a sound understanding of adverse business-related human rights impacts and identifying gaps in state and business implementation of the ungps (unwg 2016, no. 2.5 and 2.6). for this purpose, it suggests the use of the nba developed by the dihr and icar (2017). this nba focuses on how the requirements of pillars i, ii, and iii of the ungps are being met by state and business duty-bearers. this methodology is based on quantitative and qualitative information, specifically a template that comprises a set of tables that cover all the ungps. this template is in line with the hris framework developed by the ohchr in 2012 (ohchr 2012a) and these guiding questions seek to ‘assess the steps being taken by states in addressing their obligations—from commitments and acceptance of international human rights standards (structural indicators) to efforts being made to meet the obligations that flow from the standards (process indicators) and on to the results of those efforts (outcome indicators)’ (dihr & icar 2017, p. 26). although finding this type of data is not easy, ‘nap processes offer a unique opportunity to engage businesses, industry associations, chief security officers, and impacted individuals and communities in generating relevant data’ (dihr & icar 2017, p. 27). the dihr has also developed specific guidance (toolkit) on how children's rights can be addressed in naps and other similar policies. in this guidance, hribs are related to the nba, for example, the prohibition of child labour, maternity protection, or access to children's services (dihr, icar & unicef 2015). 21 note that this guide predates the 2012 definition of hri in the ohchr (2012a) guidance. http://10.17561/tahrj.v20.7500 silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 9 ultimately, any plan is expected to eventually improve the state of rights, and this is precisely what they measure. somehow, the improvement in hris must be part of the goals of all npas. the evaluation of a nap is not only to assess whether the proposed objectives have been achieved but also to evaluate whether due diligence and ungps have progressed. in other words, it should assess not only what has been carried out but also what has been achieved. in 2015, a report of the unwg highlighted gaps in the measures of the ungps: little information on pillar iii, lack of data on many rights, their impact on communities and small businesses, lack of data on actual effects, and overreliance on socioeconomic data. it also pointed to the need for three types of measurements, commitments, processes, and outcomes, and highlights that ‘there needs to be more nuanced methodologies and data gathering to track actual outcomes (…) for example, about an effective company grievance mechanism’ (unwg 2015, para 63). likewise, the evaluation of 10 years of ungps shows that it needs to develop clearer data to assess the actual state of play of the corporate responsibility to respect human rights in two different directions: data are insufficient to determine the actual adoption of the principles by companies, and more generally, the performance of companies in the area of human rights (unwg 2021). the balance is that the ‘companies do not know whether their human rights policies are being implemented optimally and whether they have responded effectively to the identified human rights impacts’ (unwg 2021, p. 18); ‘moving from measuring what is done to what is achieved is without a doubt challenging’ (p. 19) and ‘bridging these persistent measurement gaps requires support for innovations for measuring performance’ (pp. 18–19). 3.2. hribs and nap contents the hribs are essential for the contents of the naps related to the companies’ diagnoses of possible risks to human rights, the monitoring of their measures, and the evaluation and communication of the results of their measures. in indicator terminology: structural, process, and outcome indicators. the first naps did not include baseline assessments or comprehensive sets of benchmarks or indicators, ‘but gradually, several national action plan processes were underway that placed a stronger emphasis on measurement and benchmarking’ (unga 2015, para 79). we can establish at least three main areas of the contents of the naps where hribs can contribute to their concreteness and effectiveness. first (and related to ungp 18), naps can incorporate frameworks for the implementation of indicators in initial company assessments (human rights impact assessments [hrias]), which would contribute significantly to the accuracy of risk assessment of business activity. second, naps can also incentivise and encourage the consolidation of hribs in the monitoring of companies' human rights policies (ungp 20), the tools to account for their respect for human rights (ungp 21), and non-financial reporting. third, the naps must establish a system of indicators in their content to evaluate the plan itself, beyond the fulfilment of immediate and operational objectives, in terms of achievements, improvements, and real progress in respecting human rights. http://10.17561/tahrj.v20.7500 role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 10 the ungp 18 states, among other things, that companies should conduct an initial assessment of the potential human rights risks of their activities. the impact assessment of human rights informs the subsequent steps to be adopted in the human rights due diligence process (ohchr 2011). several approaches can be used to accomplish this, including hria of business projects and activities. the dihr has developed this methodology and hribs are essential; specifically, in the analysis of the country's regional and local human rights context, the level of legal protection and human rights enjoyment, and the history of human rights violations (dihr 2020). in addition, in this initial assessment, companies should pay particular attention to marginalised or vulnerable groups to ensure that they do not contribute to, or exacerbate, such discrimination,22 and to this end, having segmented hribs specific to these groups is essential. ungp 20 states that to verify whether adverse human rights impacts are being addressed, business enterprises should track the effectiveness of their response. tracking should be based on appropriate qualitative and quantitative indicators (ohchr 2011). no single method exists for such monitoring, which depends on a multitude of issues such as the size of the company, the sector, and the level of risk. in the process of developing a human rights policy, the company, when acting and monitoring the results, must ‘identify indicators for measuring human rights performance, developing and implementing systems for acquiring qualitative and quantitative data, drawing on both internal and external feedback, including from affected stakeholders, and reviewing the findings to inform future strategy’ (ohchr 2015, p. 32). the type of indicators to be used also depends on the human rights issue, access to data, or the existence of established indicators (ohchr 2012b, p. 54). in any case, as the dihr (2020) guidance on assessment points out, hribs are essential to guide subsequent data collection and baseline development and monitor whether the measures proposed are effective. the advantages of using hribs are clear: they provide structured information, reporting on impacts, outcomes, and ongoing monitoring, aligned with the ungp 20. they allow assessments to be comprehensive and in line with international principles and standards and are an essential tool for assessing corporate policies, procedures, and practices. moreover, their use can alleviate the shortcomings of hrias, emphasising the outcome level and the impact attributed to business activities (veiberg, factor & tedaldi 2019). the unwg does not advocate that the exact approach should be adopted in the field of business and human rights or that it should conclude with an identical output as the ohchr human rights indicator framework; however, it does argue that such work is both vital and achievable (unwg 2015, para 77). in this regard, the above-mentioned guidance of the dihr provides an excellent example of applying hribs to hrias, applying the criteria and types of indicators established by the ohchr (structural, process, outcome) to specific needs and uses in the business context.23 similarly, we find scholarly studies that have adapted the ohchr framework to the business context (veiberg, factor & 22 as pointed out by ohchr (2012b, pp. 40–41) and o´brien (2018, p. 88). 23 see the development of indicators in table 2.c in dihr (2020, pp. 79–81) and ‘data collection and baseline development practitioner supplement’ in dihr (2020). http://10.17561/tahrj.v20.7500 silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 11 tedaldi 2019): the structural and process indicators provide insights into the management commitments and procedures in the company and outcome indicators measure the extent to which companies’ respect for human rights efforts translate into actually addressing adverse impacts identified. while the hria entails the development of context-specific indicators, existing human rights indicator resources can be used (dihr 2020). combining standardised indicators with case-specific ones is essential.24 moreover, they should not be the only source, and including other qualitative measurements and analyses is crucial. according to ungp 21, companies should explain and communicate the measures they adopt and be transparent and accountable. the commentary on this principle notes that one of the key reporting tools is non-financial reports that include information on human rights. these reports have evolved, guidelines and frameworks have been developed, and are now being used as a basis for reporting.25 in europe, the eu directive 2014/95/eu requires certain large companies to disclose relevant non-financial information to provide investors and other stakeholders with a more complete picture of their development, performance and position, as well as the impact of their activity and specifically states that this non-financial information should contain key performance indicators (eu european parliament of the council 2014, art. 1 (1) 1.e.). according to the european commission's guidance on this directive, some key performance indicators may be useful for multiple companies and business circumstances; others are more related to the issues and circumstances of a particular sector. in any case, companies are encouraged to disseminate indicators, both general and sectoral (eu european commission 2017). hribs tailored to specific circumstances or sectors can be an essential part of these key performance indicators. likewise, the council of europe call for member states to mandate business enterprises to be more transparent and regularly provide information about human rights impacts and due diligence efforts (council of europe 2016). some european states have indeed enacted legislation or adopted other measures along these lines, even according to a set of qualitative and quantitative indicators on issues such as employee contracts, working hours, pay, industrial relations, health and safety, and disability policies.26 however, hribs also have a major role to play in the development of other ungps such as numbers 427 and 5;28 in both cases, the guidance suggests measures that render support or contracting conditional on due diligence and respect for human rights (unwg 2016). to this end, determining clear and unambiguous criteria, minimum standards, and the development of a system of indicators to serve as a benchmark, is critical. further, hribs adapted and related to access to an effective remedy (pillar iii) could 24 see examples in veiberg, factor & tedaldi (2019). 25 see non-financial reporting at globalnaps [accessed 17 june 2022]. 26 see more references in o´brien (2018, pp. 90–91). 27 addresses situations in which the state controls or owns business enterprises or where companies receive substantial support from state agencies (ohchr 2011). 28 addresses situations in which states privatise the delivery of public services (ohchr 2011). http://10.17561/tahrj.v20.7500 https://globalnaps.org/issue/non-financial-reporting/ role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 12 help quantify the implementation and effectiveness of these tools, which, as illustrated earlier, form one of the gaps in the current naps, especially to support the collection of gender-disaggregated data (unwg 2016). as de felice and graf (2005, p. 62) point out, the naps must establish ‘unambiguous commitments, precise indicators, and clear deadlines for future action’. one of the most widely used methodologies for assessing naps has been developed by dihr and icar29 and is based on a checklist that lays out a set of 25 criteria that address both the content of naps and the process for developing them. criterion 6.2. states that ‘naps should lay out a framework for monitoring of and reporting on implementation’ (dihr & icar 2014, p. 149) and hribs, as mentioned earlier, are essential for accountability and follow-up. finally, mentioning the role that indicators can play in the internal processes of companies and the evaluation of the integration of a human rights approach is also important. ungp 16 sets out a company's commitment to meet this responsibility through a statement of policy that is reflected in operational policies and procedures necessary to embed it throughout the business enterprise (ohchr 2011). to this end, as the ohchr points out, including indicators related to human rights policies and procedures in the performance assessments of staff at all operational levels is essential (ohchr 2012b). 3.3. naps as a framework for establishing hrib systems an npa can be the political-administrative framework to drive the creation of a unified hri system. this has been stated by the ohchr as early as 2002 in its handbook on plans, where it explicitly states that: ‘where such indicators and information are not available, the national action plan may ultimately include plans to regularly collect the necessary data’ (ohchr 2002, p. 63). in its 2012 guide on indicators (ohchr 2012a) and more recently, in its guide on reporting, it states: ‘with respect to statutory mandates, the mandate of a national mechanism may also originate from a national human rights action plan (…) that assigns it the tasks of developing indicators and benchmarks, (..)’ (ohchr 2016, p. 12). as mentioned earlier, hribs can similarly provide tools for the initial assessment, monitoring, and impact of the nap, and contribute to the fulfilment of the ungps. the nap itself can be the springboard for launching or expanding initiatives to create national hrib systems by including some measure or objective that envisages the creation of a tool that collects, analyses, designs, develops, reports on, and promotes specific indicators. these systems would adapt the universal framework of hris to the national context and the idiosyncrasies of business and productive activities. 4. comparative experiences: finland and spain as mentioned in the introduction section, since the establishment of the ungps, naps have been developed, especially in europe where many countries have progressively 29 already mentioned in section 3.1. http://10.17561/tahrj.v20.7500 silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 13 elaborated and implemented naps. however, this development has occurred at different rates, from the first few naps in the united kingdom (2013), the netherlands (2013), denmark (2014), and finland (2014), to those currently in process, such as in ukraine and scotland30. in addition, each european country has its own context and tradition in the development of human rights-based policies and plans. we selected two european countries that represent two different traditions and that have developed naps at different times. finland is one of the first european countries to develop a nap and has the strongest track record in the development of human rights plans, policies, and initiatives. contrarily, spain falls into the mediterranean typology of welfare states, which only lately incorporated a human rights approach into its policies, and therefore, has been slower to develop a nap. 4.1. finland since 1998, finland has produced reports on human rights,31 focusing on the measures and actions taken rather than on quantifiable results, although the importance of a human rights database and indicators is referred to, especially since 2014 (ministry for foreign affairs, finland 2014). in 2013 a working group was set up at the human rights centre to apply the ohchr's methodological framework to a national system and the university of tampere prepared a report for the government in 2016 on the development of hris and their use in legislative processes (rautiainen & lavapuro 2016). the importance of indicators was already mentioned in the ‘first national action plan on fundamental and human rights (2012–2013)’, although its evaluation also stated that the defined indicators did not allow for an assessment of improvements in the fulfilment of rights (ministry for foreign affairs, finland 2014). in the second plan (2017–2019), one of its priorities was the development of hris that allow international comparisons and are adapted to the finnish context. this is in the form of designing equality indicators and a barometer of fundamental rights to be implemented by the ministry of justice and the human rights centre (ministry of justice, finland 2017). the third national action plan (2020–2023) explicitly refers to the shortcomings in the development of hris and even to the parliament's final call for its importance (ministry of justice, finland 2022).32 this plan attaches considerable importance to indicators and explicitly sets out the implementation of the ohchr’s framework for hris and translates into a specific project for this purpose,33 even devoting an appendix on fundamentals and hris (ministry of justice, finland 2022). 30 see dates of naps in globalnaps [accessed 27 july 2022]. 31 reports in 1998, 2000, 2004, 2009, 2014, and 2021, available at human rights centre, finland [accessed 18 june 2022]. 32 parliament has stated that quantitative and qualitative fundamental and human rights indicators are required to support systematic monitoring (ministry of justice, finland 2022, p. 12). 33 see ministry of justice, finland [accessed 18 june 2022]. http://10.17561/tahrj.v20.7500 https://globalnaps.org/country/ https://www.humanrightscentre.fi/human-rights/fundamental-and-human-rights-in-/government-report-on-human-right/ https://oikeusministerio.fi/en/-/the-monitoring-of-fundamental-and-human-rights-to-be-improved-with-indicators role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 14 finland’s nap (ministry of employment and the economy, finland 2014), was adopted on 17th september 2014.34 in the nap process, although a background memorandum on relevant laws and policies was formulated, no nba or diagnostic report that could incorporate hribs was carried out.35 to date, no report has been published on the impact and achievements specifically of the nap.36 however, the ministry of economic affairs and employment has published several studies on companies’ actions related to human rights. one of them is the status of human rights performance of finnish companies project,37 which examines the human rights performance of finnish companies relative to the expectations set out in the ungps. it is based on the methodology developed by the chrb and the core ungp indicators.38 a total of 78 finnish companies were included in the sample, 29 of which were assessed using chrb’s sectoral methodology (focused on specific sectors and composed of a larger number of indicators) and 49 with the core ungp indicators (general and on 13 indicators) focused on the companies’ human rights policy commitments, the implementation of due diligence and the remedies and grievance mechanisms. this report shows, among other things, that the process to identify, prevent, mitigate, and address the adverse human rights impacts of the activities has not yet begun and is at a very nascent stage for many finnish companies, which is aligned with companies in other european countries (ministry of economic affairs and employment, finland 2021). regarding the content, the nap (ministry of employment and the economy, finland 2014) recognises the importance of hria (sec. 3) and the crucial role of civil society in the assessment of the impact of business activities on human rights (sec. 3.5). it also refers to the non-financial reporting obligation under the eu directive and its entry into force in finland (sec. 1.3) and recommends the use of the global reporting initiative (gri) (sec. 3.2), which covers a wide range of standards of economic, environmental, and social impacts.39 4.2. spain spain approved its first ‘human rights plan (2008–2012)’ in 2008 (gobierno de españa, spain 2008) and conducted its evaluation in 2012 (gobierno de españa, spain 2012). from the perspective of hris, we can conclude that this first plan contributed practically nothing; it did not even establish clear indicators for its monitoring, not even in 34 see the process in the nap itself (ministry of employment and the economy, finland 2014) or in globalnaps [accessed 18 june 2022]. 35 corroborated by the icar evaluation report for finland (icar & eccj 2014). 36 ministries have reported on the progress since the nap was approved (approximately eight times). information on progress is shared with stakeholders at various events organised by the government. social media is also used to keep stakeholders informed. information at globalnaps [accessed 18 june 2022]. 37 see status of human rights performance of finnish companies at (sihti) project [accessed 18 june 2022]. 38 see section 2.2. of this article and chrb (2021). 39 see information on this initiative at globalreporting.org [accessed 20 june 2022]. http://10.17561/tahrj.v20.7500 https://globalnaps.org/ https://globalnaps.org/country/finland/ https://www.hanken.fi/en/departments-and-centres/department-management-and-organisation/ccr/research/projects/sihti-project https://www.globalreporting.org/ silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 15 the results report.40 although this plan has not been renewed, it is in the process of being approved and is currently in the public consultation phase.41 however, in spain, we find a very important precedent in the ‘strategic plan for human rights of the madrid city council’ (ayuntamiento de madrid, spain 2017). this plan was in force from 2015 to 2019 and despite its brevity, it was pioneering in many ways, especially in the use and promotion of hris. the diagnosis before this plan was based on qualitative and participatory methodology (workshops and consultations), but included some social indicators, reflecting issues related to the right to an adequate standard of living or decent housing (ayuntamiento de madrid, spain 2017). the final evaluation of the plan, in addition to the indicators related to the objectives, analyses the outcomes and the impact on human rights in terms of hris. it assesses the plan according to data such as the gini coefficient or the gender inequality index. specifically, it applies the ohchr indicator framework (structure, effort, and results) and adds indicators of human rights enjoyment (red2red & ayuntamiento de madrid, spain 2019). this plan succeeds in incorporating the hris into its contents and explicitly refers to the publication of indicators disaggregated by discrimination, reflecting citizen participation (ayuntamiento de madrid, spain 2017, sec. 1.1.6) and the establishment of a system of hris to evaluate the plan (p. 96). within the framework of the objectives related to the promotion of human rights (goal 18), a specific objective is the ‘promotion of the identification of human rights indicators, until now non-existent, to ensure their inclusion in all municipal cultural and sports activities’ (goal 18.4.4). the plan also foresees an annual human rights impact report to accompany the city council's general budget, a diagnosis of the fulfilment of economic, social, and cultural rights, and to consider hris in the management of municipal services to guarantee equity (goal 21.1.3). all this implies that we can regard this council plan as a good example of the use of hris as a tool for diagnosis, orientation, evaluation, and accountability. however, the most important proposal, or at least the one that best reflects this enhancement, is perhaps the development of a municipal system of hris. the plan foresees the creation of the office of human rights and memory, and among its purposes, is the ‘promotion of the implementation of systems for the collection, management, and publication of data on the human rights situation in the city of madrid, as well as on the degree of compliance with the city council's obligations in the field of human rights and the area of the sdgs’ (ayuntamiento de madrid, spain 2017, p. 96). after a long process,42 the spanish nap was approved in 2017 (gobierno de españa, spain 2017). this plan has significant shortcomings: it does not incorporate an nba, has not published a diagnostic report, and does not include content or measures 40 corroborated by the plan monitoring report by ramiro (2011). 41 available at ministerio de la presidencia [accessed 20 june 2022]. 42 see the process at globalnaps [accessed 20 june 2022]. http://10.17561/tahrj.v20.7500 https://www.mpr.gob.es/servicios/participacion/consultaprevia/paginas/2022/110422-segundo_plan_derechos_humanos2.aspx https://globalnaps.org/ role of human rights indicators in national action plans on business and human rights: comparative analysis of finland and spain the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 16 related to pillar ii. moreover, tools or measures related to managing a plan effectively, such as dates, deadlines, objectives, concrete actions, and indicators (of any type), are absent.43 the plan foresees the creation of a monitoring committee. in addition to an annual evaluation of the plan, the objective of this committee is to conduct an impact assessment of the plan concerning the prevention, mitigation, and remediation of the negative effects of business activity (two years after the approval of the plan) (gobierno de españa, spain 2017, pp. 22–23). to date, no evaluation or impact assessment report of the nap has been published. in spain, the eu directive 2014/95 on non-financial information was changed one year later in ‘ley 11/2018 en materia de información no financiera y diversidad’ (nonfinancial information and diversity law) (ley 11/2018, de 28 de diciembre). this law establishes that information on the respect of human rights must be included and refers to key indicators and initiatives such as the aforementioned gri. some initiatives and guidelines have been published to complement this nap on due diligence and reporting,44 where the hri framework and its importance are mentioned, as well as some of the most important international initiatives in the reporting methodology.45 however, in general, we find few reports on the human rights impact of companies, where we can observe hribs developed in the context of spanish companies. only a few reports exist on cases46 or complaints filed by non-government organisations.47 5. conclusion and discussion discussing the integration of indicators in the naps implies considering how evaluation and accountability tools are incorporated into these plans and the level of concreteness of these tools. in this article, we analysed the potential of the relationship between hribs and naps from a dual perspective: in terms of process and content. in the nap process, the hribs provide context and clarity to the diagnosis of the human rights situation, the ungps, and the objectives that should guide the nap. in the monitoring and 43 in this respect, see analyses such as josé ángel moreno izquierdo (1 october 2018) at agora [accessed 20 june 2022]. 44 for example, the ‘guía de derechos humanos para empresas. la aplicación de la debida diligencia y el reporting’ of observatorio de responsabilidad social corporativa, available at observatorio rsc [accessed 20 september 2022] and the ‘comunicando el progreso 2021’ of pacto mundial. red española, aviable at pacto mundial [accessed 20 september 2022] 45 such as the one developed by dihr. 46 the most relevant report is: fundación cideal, ‘empresas españolas y derechos humanos. prácticas de aplicación de la debida diligencia’, about six spanish companies’ cases in 2019, available at cideal [accessed 20 september 2022]. 47 see the work of the ngo plataforma por empresas responsables [accessed 20 june 2022]. http://10.17561/tahrj.v20.7500 https://www.agorarsc.org/conmemorando-es-un-decir-el-plan-nacional-de-empresas-y-derechos-humanos/ https://observatoriorsc.org/empresas-y-derechos-humanos-guia-de-aplicacion-de-la-debida-diligencia-y-reporting/ https://www.pactomundial.org/biblioteca/comunicando-el-progreso-2021-el-reporting-empresarial-como-instrumento-para-una-recuperacion-sostenible/ https://www.cideal.org/libreria/empresas-espanolas-y-derechos-humanos/ https://empresasresponsables.org/ silvia avellaneda san antonio the age of human rights journal, 20 (june 2023), e7500 issn: 2340-9592 doi: 10.17561/tahrj.v20.7500 17 assessment, hribs focus on achievements in terms of human rights and compliance with international standards. the naps must at least refer to the use of hrib methodologies or systems in the evaluations of the plan and its achievements. in this respect, finland has a longer tradition than spain of reporting on achievements, although both countries still have a long way to go in incorporating hribs into the nap process. in the nap content, hribs are an indispensable tool in assessing the impact of business activity and corporate accountability. the more concrete the naps are in this respect, the more guarantees they will have. in parallel to the legal development of nonfinancial reporting, naps can be a tool to help companies report and be accountable, and at the very least, should recommend the use of methodologies that incorporate hribs, such as the finnish nap. in general, hribs can and should be present in the design, monitoring, content, and evaluation of nap measures and tools. in this regard, finland and spain have two important precedents in their general human rights plans. in finland, the third npa attaches crucial importance to indicators and explicitly sets out the implementation of the ohchr's framework for hris and translates into a specific project for this purpose. in spain, in the strategic plan for human rights of the madrid city council, the development of hris forms part of several of its measures and one of the objectives of this plan is the development of a municipal system of hris. the naps themselves can be the platform for the creation and promotion of initiatives and projects for the development of hrib systems adapted to national contexts and business typologies. developing specific hribs is not an easy task and possibly, specifying and measuring the obligations of companies is much more complex than that of states. a system of hribs is much more than applying the ohchr framework and further developing methodologies, initiatives, and the practice of using indicators, are needed. however, if we are in the realm of policies, tools that help to assess the eventual results in terms of human rights impacts are the closest we can reach justiciability and accountability. one of the shortcomings of the naps is their capacity to produce and verify results and achievements. this article delivers keys to alleviate this limitation through the articulation and use of the full potential of the hris. this work provides a novel contribution to the literature on the subject and a practical approach that can be useful to various stakeholders, including practitioners and public policymakers. however, it also shows that continuing the in-depth analysis of the uses, potentials, and initiatives occurring in europe along with their results is necessary. references abramovich, v. and pautassi, l. c. 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https://www.spglobal.com/spdji/en/indices/esg/dow-jones-sustainability-world-index/#overview. https://www.spglobal.com/spdji/en/indices/esg/dow-jones-sustainability-world-index/#overview. https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights. https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights. https://www.ohchr.org/en/special-procedures/wg-business/national-action-plans-business-and-human-rights. role of human rights indicators in national action plans on business and human rights: comparative a abstract 1. introduction 2. concepts: naps and hris 2.1. naps 2.2. hris 3. role of hris in naps 3.1. hribs and nap process 3.2. hribs and nap contents 3.3. naps as a framework for establishing hrib systems 4. comparative experiences: finland and spain 4.1. finland 4.2. spain 5. conclusion and discussion references information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 1 information human obligations: state and prospects of doctrine interpretation oleksandr o. tykhomyrov1, denys о. tykhomyrov2, liudmyla v. radovetska3, antonina v. vatral4 abstract: the world is not standing still, and the development of information technology is giving rise to even more new areas of social relations. it is only logical that new human rights and responsibilities arise. the sphere of information relations is quite new and is rapidly developing. while the international community and national authorities pay a fairly high level of attention to information rights by introducing special regulations, they pay less attention to obligations. this is due to the absence of a single unified act, and therefore, in general, the concept of duty is consistent with law, including in the field of information relations. this is the relevance of the study, which is driven by the rapid development of informational and legal relations and the improvement of the digital space, as well as the strict fulfillment of obligations arising from them. the purpose of this article is to emphasise the urgent need for doctrinal changes in the human rights system caused by the deep informatization of human life, in particular the interrelationships of information rights and human obligations, their prospects, and their significance for the promotion of human rights in the global information society. the results obtained will be useful for further research and will be aimed at improving the regulation of the process of fulfilling duties by participants in informational and legal relations. however, the study of the trajectory of the information progress of humanity and the understanding of information responsibilities, based on their inherent connection with the information rights of a person, can have not only a scientific sense but also a positive contribution to the development of human rights in the information society. keywords: information obligations, information rights, human rights, human responsibilities. 1. introduction the traditional understanding of the legal obligation in the theory of law is the measure (limits, variants) of behavior of a person, the necessity of which is determined by law (legally) and is provided with the possibility of application of compulsory measures. the well-known and axiomatic legal formula “there are no rights without responsibilities”, which is considered to be a manifestation of justice in law for thousands of years. however, in light of modern ideas about human rights, both the first and the second elements are not perceived so categorically. it is reasonable for some coexisting criteria to 1 department of civil law. national academy of the security service of ukraine. kyiv, ukraine (tihoma75@ gmail.com). 2 department of theory of state and law. national academy of internal affairs. kyiv, ukraine (beleg85@ gmail.com). 3 department of theory and history of the state and law. national academy of the security service of ukraine. kyiv, ukraine (lradovetska@ukr.net). 4 interagency scientific-research centre on the problems of combating organized crime under national security and defense council of ukraine. kyiv, ukraine (tonya7777@gmail.com). https://doi.org/10.17561/tahrj.v21.7698 mailto:tihoma75@gmail.com mailto:tihoma75@gmail.com mailto:beleg85@gmail.com mailto:beleg85@gmail.com mailto:lradovetska@ukr.net mailto:tonya7777@gmail.com information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 2 be broadly acknowledged and codified in law, which gives rise to the concept of human rights. meanwhile, their textual expression at the most general legal level in the form of declarations, conventions, charters must always be regarded in terms of completeness and universality, as well as the amount of moral and legal components as primary and secondary ones. as a result, now the practice of obtaining a positive legal form by human obligations is much more serious in cultural terms: it takes place mainly at the national level, taking into account the diversity of socio-cultural space. understanding of human rights, and therefore, human obligations, goes beyond any legal normative text. the content of human rights is not limited to recognized, defined, or known rights and is developed alongside changes of the human world perception. therefore, the problem of expanding the content of human rights and the emergence of new rights will remain a topical issue, especially in connection with deep informatization, which significantly influences both the content and the processes of human rights realization. the aim of this article is to emphasize the urgent needs for doctrinal changes in the human rights system, caused by the deep informatization of human life, in particular, the interrelations of information rights and human obligations, their prospects and significance for the promotion of human rights in the global information society. the debate on human responsibilities is conducted as much as the discussion of human rights as universal moral claims for all humanity, regardless of cultures and traditions. however, international instruments containing universally recognized human rights standards (the universal declaration of human rights, the international covenant on civil and political rights, the international covenant on economic, social and cultural rights, the convention for the protection of human rights and fundamental freedoms) are formed mainly by liberal western doctrine and do not focus on the obligations equally to the rights (european convention on human rights, 2022). this is attributed to historical features of the establishment of the idea and practice of human rights, first of all, as a standard of dignity and freedom of each person in relations with the state. in contrast to the state’s duties to human rights, human obligations are mentioned in an abstract way, that is, mostly as a necessity to respect and not violate the rights of others. thus, art. 1 of the universal declaration of human rights (1948) declares that all people “are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. moreover, the art. 29 provides that “1. everyone has duties to the community in which alone the free and full development of his personality is possible. 2. in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (universal declaration of human rights, 1948). as part of our study, it is worth defining a person’s informational obligations to further explore the specifics of their observance. informational human obligations are the assumption of responsibility and the performance of a certain range of actions that individuals, organizations, and governments have to ensure the observance and protection https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 3 of human information rights. informational obligations in human rights dogma are justified and reflected in the idea of the universal declaration of human rights (universal declaration of human rights, 1948) and other international documents containing basic human rights standards. this document is the basis for stating that everyone has the right to express their views, the right to freedom of thought and conscience, etc. as a result, everyone has the right to receive and disseminate information necessary for development, education, work, and generally the usual way of life. among other things, informational obligations are justified by the principle of equality before the law, meaning that everyone has the right to access professional legal assistance and everyone has the right to receive information about the scope of their rights and, accordingly, their obligations. in this case, the state is obliged to provide access to all necessary information and to take all necessary actions to protect freedom of speech. information obligations are inextricably linked to democracy and citizen participation in decision-making. in our opinion, it is also worth noting that the transition from freedom and equality of rights to obedience, responsibility, and self-restraint required by obligations can be justified on the basis of the principle of social theory, namely social justice. that is, every person coexists peacefully with other people, and everyone fulfils their duties for the common good. in other words, the scope of responsibilities correlates with the scope of rights and freedoms. under such conditions, people bear and accept responsibility for their actions and limit themselves when necessary for the common good. only under such conditions does society function as an integral system (trajkovic, 2015). however, not every person is able and ready for certain kinds of restrictions on themselves, which creates problems for universality. it is also important to note that some people may have more opportunities and means to fulfil their responsibilities, which in turn creates inequality in society. we must say that some people may believe that the common good is not important compared to their own good and therefore avoid any kind of restriction. it is very important that such restrictions do not become an object of abuse by the authorities and lead to harmful consequences. the above statements emphasize the equality of everyone in rights and freedoms and the need for a balance between the rights and interests of people in society. however, these statements do not embrace specific content as legal obligations. in other words, it is the perception of human obligations as a principle or a moral standard, with the emphasis on the legal relationship of each particular right and the corresponding obligation or responsibility of the person being substantially lost. 2. materials and methods the mainly aimed foundation of the study is the axiologic analysis of phenomena and processes in the world, which enables one to track changes in legal standards, particularly in regard to human rights and obligations, as a result of the emergence of the information society’s positive guiding principles. namely, freedom of expression and association, open access to knowledge, information security, and widespread adoption of digital technologies in daily life. we will also try to demonstrate a theoretical representation of the information obligations of a person, with the help of a hypothetical-deductive https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 4 method, content analysis, comparison, and interpretation. the arguments will be based on the theoretical position on the possibility of allocation of information human rights, which embrace recognized rights of information nature (the right to freedom of expression of views and beliefs, to privacy, to education), and a set of new rights, conditioned by the development of information technologies (for example, the right to be forgotten, the right to access to the internet, the right to a multi-faceted and secure information space) (tykhomyrov, 2020). the axiomatics of the inherent link of the right and the obligation in law is also taken into account, which we believe to be relevant at the level of human rights, at least in relation to information rights and human obligations. the main content of the article is structured in the following way. the first section focuses on the necessity of a discussion about human responsibilities, in particular information ones, within the framework of liberal doctrine of human rights, taking into account the attempts to promote the idea of the universal declaration of human rights and its ideological substantiation. the second section dwells upon the creation of an empirical material, that is, the demonstration of variants of already existing legal consolidation of information obligations at the level of international human rights standards and recognized trends of their development in the information epoch. in the third section, the attempt of theoretical substantiation of the allocation of information obligations as a relatively independent entity is made. in particular, the concept of soft and hard duties is proposed, the possibilities of classification are outlined, as well as the interpretation of such duties in the context of human rights generations is realized. 3. obligations of a person in legal doctrine although the idea of responsibility and a certain differentiation of human obligations has not been clearly expressed in the un human rights documents, it is still part of the traditions of many countries around the world. american declaration of the rights and duties of man (1948), american convention on human right (1969), african (banjul) charter on human and peoples' rights (1981) contain some sections dedicated to human duties. in particular, the american declaration of the rights and duties of man (1948) declares that “the fulfillment of duty by each individual is a prerequisite to the rights of all. rights and duties are interrelated in every social and political activity of man. while rights exalt individual liberty, duties express the dignity of that liberty”. the association of southeast asian nations (hereinafter – asean) human rights declaration (2012) defines among the principles that “6. the enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives”. at the time of the creation of the universal declaration of human rights, rene cassin (1947), as a representative of france in the drafting committee, proposed the following article as part of “chassis’s draft”: “…each one owes to society fundamental duties which are: obedience to law, exercise of a useful activity, willing acceptance of obligations and sacrifices demanded for the common good” (glendon, 2001). https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 5 within the universally recognized concept of human rights, the imbalance between rights and obligations constantly draws attention of modern philosophers, especially representatives of asian cultures, where the awareness of a person's responsibility toward oneself, society and family belongs to deep moral foundations. for example, jeremy kee (2014) strongly suggests that the term “human obligation” is not used often because its philosophical basis is not known to many people while some of them even disregard it. besides, according to ashutosh kumar singh (2020), human obligations are linked to “a higher purpose”. he also considers that “acting on this mysterious and sacred duty that we feel towards one another is the glue of any society”. shashi motilal (2015a) substantiates an “international moral code of human conduct” as a manifestation of “a uniform system of moral code”. it is possible due to the fact that “a broad notion of moral obligation is to be found in major ethical and religious systems of the world”. “at the same time the same concept of human moral obligation derived from the vast and variegated foundational background of different metaphysical, ethical and religious systems of thought would be expressed in diverse cultural practices making room for the diversity of multi-dimensional belief systems to be found in the world community” (motilal, 2015a). as it can be seen, even eastern philosophers, who support and develop the idea of a universal moral obligation of a person, mainly dwell upon cultural diversity of understanding of its foundations and forms of existence. therefore, from the rational positions of the general jurisprudence, the possibility of forming the duties of a person in the form of an independent moral minimum at the international level is unlikely at present. however, the concretization of human obligations, which are rooted in the universally recognized rights and reflect the ethics of their use, may have a legal meaning, although it can be controversial. in 1997, in order to support and strengthen the ethical foundations of the universal declaration of human rights, the interaction council proposed a draft of a universal declaration of human responsibilities (1997). the content of this document focuses on the fact that human responsibilities are not limited to inner conviction in respect for the rights of others, but almost every human right is naturally related to the long-term responsibility of a person and his/her obligation, which provides for the possibility of realization of this right by all in society. the idea of a universal declaration of human responsibilities (1997) is based on the golden rule – “…we not do to others what we do not wish be done to us”, in particular, “if we have a right to freedom of thought, conscience and religion, we also have the obligation to respect other’s thoughts or religious principles”; “if we have a right to be educated, then we have the obligation to learn as much as our capabilities allow us and, where possible, share our knowledge and experience with others”. the mentioned proposals of the interaction council did not find the official support. however, they demonstrated that human responsibilities can have a legal framework not https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 6 only in the norms of national laws that define specific legal relations, but also at the level of general declarations of the following principles: 1) the necessary active behavior, due to the responsibility to the society where a person lives and enjoys his/her rights; 2) restrictions on human rights to maintain the balance of rights and interests and specific prohibitions (e.g., dissemination of socially harmful information, propaganda of war, etc.) as passive components of the duty. therefore, it can be argued that the promotion of human rights will not be possible without the fulfilment of the state’s obligations, as well as without human responsibility as a carrier of rights to oneself, other people, and society. this is assuming that the legal maxim “there are no rights without duties and no duties without rights” can be applied in the field of human rights. this responsibility can be structured by a set of obligations, namely: moral and legal, active and passive, perspective and retrospective. there is an ongoing discussion regarding their content and legal forms. to a greater extent, one can talk about the legal formation of the duties of a person as a citizen of a certain state, as their list with a sufficiently clear content is established by national constitutions. nevertheless, in modern democratic states, constitutional duties of a citizen as well as constitutional rights are mainly a national interpretation of the generally accepted ideals of human participation in social and public life. that is why, they could also be interpreted at the general level of human rights, for example, the duty to protect one’s state, pay taxes, comply with the laws of the state, or not to harm the environment. however, as it has already been noted, such accents are not inherent in the international human rights standards, which were formed under the dominant influence of the western liberal doctrine. the very fact that a person has a duty as a citizen of a certain state in the constitutional acts shows that not only rights, but also specific human obligations are fundamental to the legal system and need to be institutionalized, i.e., to be transmitted from a moral dimension to a legal one. unlike constitutional human rights, which are the direct embodiment of the recognized universal requirements of justice, the constitutional content of human duties is largely determined by national culture, consciousness, traditions, religion and other foundations of a certain society. as a result, the current state of national consolidation of human rights and duties demonstrates the unification of constitutional human rights, and at the same time a certain diversity of constitutional obligations. this is not so much due to the plurality of constitutional responsibilities in different countries as to the fact that “universal human responsibilities” as an element of global justice (if any) are not currently defined in international legal standards equally to universally recognized rights. however, the ethical importance of human obligations as a manifestation of universally recognized values does not depend on their direct legalization, because they remain part of the moral basis of the human rights system and an integral element of social justice, i.e., the link that makes sustainable development of society possible under the domination of the “individualistic” concept of human rights. hence, it is necessary to https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 7 support critics of the western liberal doctrine (motilal, 2015b), who emphasize that in the conditions of the unification of rights, it is the moral obligations of the person in a certain socio-cultural environment and their performance make the person and society as they are. if we reject the purely legal context and turn to the modern vision of the prospects of mankind, it becomes clear that the development model is based not only on the human rights approach. hopes are also based on a social and useful activity, which requires combining the efforts of the state, the private sector and civil society, the responsibility of people to themselves, others and humankind, the motivation to act for the benefit of society and future generations. according to the transforming our world: the 2030 agenda for sustainable development (2015), “children and young women and men are critical agents of change and will find in the new goals a platform to channel their infinite capacities for activism into the creation of a better world”. therefore, the modern concept of human rights and ideas it is based on have significant prospects for further consideration and criticism of their role as a global moral standard (motilal, 2015b), (trajkovic, 2015), (jones, 2010), (jones, 2001), (alexander, 2004) or ethical foundations of the human development (schmidt, 2002), (raz, 2007). in this regard, it is proposed to rely on the statement that the further functioning of the modern human rights system is possible only if its moral basis is deeply understood, which can be presented in the form of a complex of universal rights and human responsibilities as a responsible member of the world community. in this system, every universal human right, having acquired legal recognition, does not lose a functional connection to the corresponding obligation or a set of obligations which may not be legally institutionalized at the international or constitutional level. the absence of a universal formula for legalization of human duties (i.e., their standardization similarly to the rights) should not be considered a failure of the liberal western doctrine of human rights. owing to different understanding of the moral principles of human responsibilities, the format and scope of their consolidation in national law, the ways of establishing common values of human rights for each unique society will be to some extent original. consequently, in the context of the unification of key legal ideals, this promotes the preservation of cultural and legal diversity in the world. thus, the assertion of any universal human right, based on the immanence of the connection “right – duty”, is always conditioned by the corresponding obligations of the state and the duties and responsibilities of people. for example, one has the right to dignity. however, a person can really enjoy it only in a society where people respect the dignity of each other while the state ensures such harmony by all possible legal means. the above-mentioned conclusions suggest that, despite the dominance of the “individualistic” representation of human rights in the liberal western doctrine, the collectivism is inherent in them by nature because the existence of human rights outside the social environment is meaningless. in this case, the collectivism means that the successful promotion of human rights is determined not so much by the claims of the rights themselves but by the behavior of each person in relation to others, based on https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 8 the dignity (internal duty to respect), and by active actions to create the social environment that promotes the rights of every person, personal growth and the development of the whole society. 4. information obligations of the person in the international declarations of human rights the content analysis of the key international human rights documents shows that information obligations in different forms and with different levels of specificity are included in these texts. this allows to interpret and discuss information obligations at the general level of human rights, at least in terms of theoretical comprehension. in order to demonstrate that such obligations do not only exist in the legal form, but also have their own trajectory of development, first of all, it is advisable to consider general and regional declarative acts on human rights, and secondly, “special” ones, which were adopted due to information transformations. a. in the international charter and regional declarations (american, european, african, arab, asian) of human rights (table 1), a textual expression of human information obligations can be found within the following frameworks: 1) the emphasis on the right to freedom of expression, especially the right to knowledge, correspondent obligations, and responsibilities, even if it is in its most abstract form; 2) the ethical basis for using the right to freedom of expression (the right to information) in the following forms: – the observance of restrictions on these rights, established by law that are necessary and admissible in a democratic society; – prohibition of the propaganda of war, violence, national, racial or religious hatred; 3) requirements regarding compulsory primary education. for example, the art. 19 of international covenant on civil and political rights (1966) states that the exercise of the right to freedom of opinion and expression “…carries with it special duties and responsibilities”. moreover, the art. 10 of the convention for the protection of human rights and fundamental freedoms (1950) establishes the ethical frames of the rights, i.e., “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety…”. in addition, the right to education should be aimed at increasing respect for human rights and promoting mutual understanding and agreement in society, among ethnic groups and peoples. therefore, the need for equal access to education is highlighted in the universal declaration of human rights (1948) that establishes the requirement that “elementary education shall be compulsory” (art. 26). https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 9 table 1: content analysis of general and regional declarative acts on human rights document a m er ic an d ec la ra tio n of th e r ig ht s a nd d ut ie s o f m an u ni ve rs al d ec la ra tio n of h um an r ig ht s c on ve nt io n fo r th e pr ot ec tio n of h um an r ig ht s a nd f un da m en ta l f re ed om s a m er ic an c on ve nt io n on h um an r ig ht s + «a dd iti on al p ro to co l t o th e a m er ic an c on ve nt io n on h um an r ig ht s i n th e ar ea o f e co no m ic , s oc ia l, an d c ul tu ra l r ig ht s ( “p ro to co l o f s an s al va do r” ) a fr ic an c ha rt er o n h um an a nd p eo pl es ’ r ig ht s c ha rt er o f f un da m en ta l r ig ht s o f t he e ur op ea n u ni on a ra b c ha rt er o n h um an r ig ht s a se a n h um an r ig ht s d ec la ra tio n information human obligations in the text oas, 1948 un, 1948/ 1966 ec, 1950 oas, 1969/ 1988 oau, 1982 ec, 2000 las, 2004 asean 2012 the existence of obligations and responsibilities for the right to freedom of opinion and expression + + limitations of the right to freedom of opinion and expression + + + + + compulsory primary education + + + + + prohibition of the propaganda of war, violence, national, racial or religious hatred + + + b. international agreements of special nature (table 2), which can be called the newest in the human rights system and embody processes of the evolutionary formation of the legal foundations of the global information society. the declaration of the committee of ministers on human rights and the rule of law in the information society (european council, 2005), the promotion, protection and enjoyment of human rights on the internet: draft resolution (united nations, 2016), and the european declaration on digital rights and principles for the digital decade (european council, 2022) are the main ones. these documents also declare key human rights accents, provoked by an information technology jump, digitalization, problems and risks of information. as a continuation of ideas of the liberal doctrine of human rights in the context of the information vector of https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 10 human development, new rights are suggested (the right to access to the internet, the right to protection of personal data, the right to be forgotten, etc.), which already claim the status of human rights. there is also a new framework of duties (technological and informational), which corresponds to the right to freedom of expression (the right to information). this is the concretization of the limits of this right through the prohibition of illegal (harmful) content, disinformation, manipulation, and bullying. in the era of the information freedom, these requirements apply to all agents of the information space, i.e., people, private organizations, the state, and international actors. for example, by recognizing the right of everyone to access a reliable, diverse and multi-language online environment, the countries of the european declaration on digital rights and principles for the digital decade are obliged “to tackle all forms of illegal content in proportion to the harm they can cause, and in full respect of the right to freedom of expression and information, and without establishing any general monitoring obligations” (european council, 2022). it is obvious that in the legal field such measures will provide for the establishment of certain prohibitions (as the manifestation of negative information obligations) on the dissemination of information on the internet. 4.1 theoretical substantiation of the category “information human obligations” research of information human rights is relatively young and is only gaining popularity in the legal science. therefore, it is difficult to call the information obligations of a person a formed object of scientific research, being a consequence of the influence of the liberal doctrine of human rights, which traditionally does not focus on specific human table 2: content analysis of international agreements of special nature document declaration of the committee of ministers on human rights and the rule of law in the information society the promotion, protection and enjoyment of human rights on the internet: draft resolution european declaration on digital rights and principles for the digital decade information human obligation in the text ec, 2005 un, 2016 ec, 2022 prohibition of illegal (harmful) content + + + prohibition of misinformation, manipulation + prohibition of bullying + https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 11 duties. currently, in the work of european authors such as donnelly and white (2019), janssen and howells (2005), wilman (2022), wijesuriya and walker (2017), the notion of “information obligation” is studied mainly as a duty of a certain person to inform other persons, in particular in the sphere of consumer rights, medicine, commerce, and data protection. generally, the focus is on the content of the duty and its meaning as an element of providing different legal relations (a pragmatic instrumental approach), their subject often not belonging the information sphere. ukrainian researchers pay attention to information obligations mainly in the context of philosophical principles of information rights (danilyan et al, 2018), within the structural aspect of the consideration of “ an information and legal status” of various subjects (zolotar, 2018; kuznetsova, 2018; kushnir, 2018; kharenko, 2015) and the content of information legal relations in certain areas of activity (aritova & chernadchuk, 2012). so, this aspect is studied in different variants, but not purposefully. as for a person, this is usually done on the basis of a purely constitutional and legal interpretation of the duty, without delving into the inherent connection of human rights and obligations, their moral and socio-cultural dimensions. the information obligation as a necessary behavior of a person resulting from the system of the information rights has a wider character and orientation and performs a major role. nowadays, the system of those responsibilities that have already been legally recognized must be referred to the mechanism of the exercise and the guarantee of information rights of the person as a general public orientation in the information society with the priority task of creating equal opportunities for the realization of information rights by everyone in a certain socio-cultural environment. other duties claim to be gradually recognized as not only moral or ethical norms, but also legal guidelines of social and useful behavior of a person in the information society, and require an appropriate legal registration. the presence of human rights in the international standards that can be regarded as human information obligations, in our opinion, confirms the existence of this group of responsibilities and also makes possible a theoretical discussion of their content and role in the human rights system. the search for further normative reasoning and detalization of information duties of a person will take place at the level of more specific legal acts of national legislation. available formats of textual consolidation (abstract or concrete, direct or indirect) indicate different levels of the legal significance of regulating the behavior options that are proposed to be understood as information obligations. the range of their functions extends from general declarations, which record valuable recognition, to specific requirements, which create legal borders of information rights (the instrumental role) at different levels of legislation, promoting equality and fairness of their exercise by all in society. there are several approaches to the perception of the legal obligation essence in the scientific discourse, in particular, through the categories of “proper”, “necessary”, and sometimes “possible”. https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 12 when it comes to the constitutional duty of a person and a citizen, ukrainian scholars tend to understand it within the framework of the requirements of legal certainty and the guarantee of compliance with the relevant legal means. accordingly, then the “legal necessity” prevails among the essence. for example, the constitutional duty is “the material and guaranteed necessity in the behavior of a person, the limits of which are defined by the norms of objective law…” (biloskurska, 2011) or is “the necessity, based on international law and stipulated by the constitution…” (popovych, 2018). it is important to note that these statements by ukrainian researchers, as representatives of the ukrainian school of human rights, are based on doctrinal foundations, which include, first of all, the equality of everyone before the law and the inalienability of rights and freedoms; the existence of democracy as a driving force; the inviolability and universal nature of human rights, their unlimited time and space; publicity and transparency in all processes. the ukrainian school of human rights is primarily based on the introduction and development of legal culture in society, the development of tolerant and conscious attitudes towards each other, even if someone does not like the views and preferences of another person. it is worth noting that human rights are protected both at the level of the state and at the level of civil society organisations (including through social media). a striking example is the submission of both draft laws and issues of lesser importance for public discussion. in the theory of law, within the context of the general category of a “legal obligation”, in addition to the aforementioned fundamental characteristics, the duties are viewed as a measure, a type of legal behaviour, and a requirement of the state authority, which is conditioned by the interests of various subjects (the authorised party, society, and state), is clearly defined by legal norms, and is guaranteed by the possibility of applying state coercion. the obligations are also regarded as an element, a mechanism, and a way of providing the subjective right, or as an independent legal value (hanba, 2019; popovych, 2020; serdiuk, 2005; tykhomyrov & zavalnyi, 2010). thus, the perception of a human duty solely from the traditional positions of the general theory of law will logically lead to its conditional determintion by positive law. this certainly has a constructive effect on the understanding of the duty properties when its legal recognition and consolidation has already taken place. gowever, it does not facilitate understanding what exactly the options of human behavior are and at what time they claim universality and universal recognition at the level of human rights. the primary sources of human responsibilities are natural law, universal moral principles (as much as humanity has developed them), and ethical principles inherent in any society. human rights obligations can be legally defined as certain options of necessary behaviour through the forms of positive law, in particular the constitution. still, it concerns only those obligations that are recognized by society as a universal requirement to their members. therefore, in order to cover all the revealed aspects of the information human obligations, it is advisable to rely on a broader and flexible interpretation of the constitutional duty, for example, as “measures of obligatory, proper behavior and activity in the political, economic, social, cultural (spiritual) spheres of social life”, defined by the constitution and the laws (pohorilko & fedorenko, 2006). https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 13 at the moment, if information obligations are considered purely through the prism of legal certainty, the measure of necessary behavior is mostly a specific duty of negative character (a duty not to interfere with the rights of others). this creates a framework for the use of a certain information law and abstract duties in the form of general declarations, which reflect the importance of everyone’s efforts on the path of the information development of society. they are not unconditional and have more moral-ethical nature than legal. society certainly needs “proper behaviour” of a person, but the demands cannot be evenly applied to all because their fulfillment depends on the abilities and skills of each person (intellect, culture, education, profession, etc.). therefore, the essence of such duties better reflects the formula of “desired behavior within the framework of collective achievement of social goals”. for example, the obligation to participate in the formation of a secure and multifaceted information space as a continuation of the obligation to act for the sake of the well-being of one’s society follows this formula. the public need to fulfill this obligation, which will lead to the appropriate legal registration in the future, is particularly acute in the context of the development of the national information space as a sign of identity in the era of global informatization. however, the art. 17 of the constitution of ukraine already contains an example of a kind of legal emphasis on the indisputable importance of everyone’s participation in the common cause as a moral obligation to the society – “ensuring economic and information security is the most important functions of the state and the matter of the whole ukrainian nation” (constitution of ukraine, 1996). the level of determination by the moral or global justice, the absence of mandatory legal formalization, and the flexibility of perception within the doctrine of human rights make it necessary to interpret human information obligations in a complex and detailed way. in this regard, it is proposed to introduce the concept of “soft” and “hard” duties of a person, which can be applied not only to the information obligations. the soft duty is based on a person’s awareness of his/her active role in society and perspective responsibility, and provides for a certain freedom of performance, which is conditioned by individual abilities and qualities of a person as a member of a particular society. in the information sphere, such human capacities include intellectual development, information culture, information technologies skills, critical thinking, technological awareness, etc. the soft duty of a person is a universal duty, which can have an abstract (purely declarative) legal definition without a well-established connection with legal means of provision. therefore, it is not conditioned by external motivation inherent in the legal obligation. variants of a soft information duty of a person are the participation in the formation of information culture of society, information space, content, promotion of information development, etc. the “hard” duty is directly formalized in international human rights agreements, specified in national legislation and provided with mechanisms of implementation, in particular by means of legal responsibility. the primary form of a hard duty may include options for legally defined, necessary, socially useful actions (a positive duty), or frames for unacceptable behavior, i.e., necessary inaction (a negative duty), which maintain a https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 14 balance between rights and interests in society. the secondary form may include the obligations related to the restoration of violated rights, in particular, the obligations of legal responsibility. for example, this can be necessary actions established by law in order to facilitate the refutation of false information. thus, in the national context of ukraine, the requirement of respect for the rights and freedoms of other people regarding the exercise of the right to freedom of opinion and expression (art. 19 of the universal declaration of human rights) is disclosed by the following directly defined information obligations: – refrain from propaganda war, incitement to discrimination, hostility or violence (art. 20 of the universal declaration of human rights, art. 436 of the criminal code of ukraine); – do not interfere in the personal life of others by collecting, storing, using, or disseminating confidential information about a person without his or her consent (art. 32 of the constitution of ukraine, art. 302 of the civil code of ukraine, art. 182 of the criminal code of ukraine); – to make sure that the information disseminated is reliable (art. 302 of the civil code of ukraine); – to deny false information if it is disseminated (art. 277 of the civil code of ukraine). thus, the “soft” duty of a person embodies the most general idea of the desired active role of a person in society, having acquired legal forms at the normative levels where declarations are admissible (usually not below the constitution). the “hard” duty corresponds to the classic concept of legal obligation in the format of positive and negative obligations, prohibitions, etc. the study of information obligations of a person by the classification method can be continued from different angles, formed by many already known criteria. in particular, it is possible to allocate such dual forms as independent and correspondent, absolute and relative, active and passive, positive and negative, individual and collective, defined by legal documents and undefined, those based on a perspective and retrospective responsibility. at the same time, the perception of information human obligations as an element of the human rights system enables them to be interpreted through the lens of human rights generations. we do not propose the division of human duties according to the principles of a generation concept because now a significant part of them has a moral and ethical dimension while their legal consolidation is fragmented, situational and unrecognized by international agreements. however, due to the inherent connection of “right-duty”, at least the information obligation, which corresponds with the recognized right of a person of a certain generation, has a correlation with this generation. then, the duty to refrain from spreading prohibited content, which corresponds to the right to freedom of opinion and expression, belongs to the first generation, while the duty to receive primary education, which results from the right to education, belongs to the second one. in addition, information obligations can be presented in the context of discussions about the human rights of new generations. it is about creating ideas about new independent https://doi.org/10.17561/tahrj.v21.7698 oleksandr o. tykhomyrov; denys о. tykhomyrov; liudmyla v. radovetska; antonina v. vatral the age of human rights journal, 21 (december 2023), e7698 issn: 2340-9592 doi: 10.17561/tahrj.v21.7698 15 human responsibilities in the global information society, which claim to become general moral standards, for example, the need to invest in information security, the formation of a multi-faceted information space, and the creation of high-quality content. 5. conclusions the formation of information obligations of a person takes place under the influence of complex combination of various factors, i.e., axiologic, evolutionary, technological, cultural, psychological, and legal. if human rights are a moral minimum, which has a universal legal content, the obligations that are inherent in these rights will have the same moral nature and, accordingly, the prospects for legal recognition. it is possible to predict that the growth of generations of people in the conditions of information society leads not only to the obvious formation of information culture and consciousness, but also adds some new ideas about the role and behavior of man in society to the well-known moral ideals. the information human obligations will become part of the content of this “information morality”, which we can only suppose today. at present, the information obligations of a person, which are already legally provided for, are mostly prohibitions, logically determined by the needs to ensure the recognized human rights as a kind of ethics of information behavior. such an approach generally corresponds to the rational modern jurisprudence. nonetheless, it would be a mistake to ignore a person’s informational obligations from a legal perspective, particularly in the current era of the rapid development of information society and technologies. another question is how and at what legal level the formalization and the definition of their content must occur. the proposed concept of a soft and hard duties can help to understand this further. strict instrument obligations are fixed at the appropriate level along with the human rights they ensure and are detailed in national legislation. in addition, the practice of legal representation of soft, mostly declarative, duties should be reconsidered, taking into account the long-running criticism of the human rights liberal doctrine regarding the minimalism of the corresponding accents. finally, international documents on human rights are a legal consequence and form of recognition of universal moral ideals. at the same time, they constitute a competent and accessible to every source of ideas about these recognized ideals, as well as a certain standard for the formation of the content of national legislation. therefore, the strengthening of the emphasis on soft information obligations may have a sense, especially for the comprehension, and subsequently, the boost of each person’s role in the information society, and the raise of the level of information consciousness, culture and autonomy of the individuals, without which the sustainable development of the mankind is impossible. references a universal declaration of human responsibilities. 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(2018). legal status of a person in the information society. legal scientific electronic journal, 1, 84–87. received: 10th january 2023 accepted: 19th may 2023 https://doi.org/10.17561/tahrj.v21.7698 information human obligations: state and prospects of doctrine interpretation abstract 1. introduction 2. materials and methods 3. obligations of a person in legal doctrine 4. information obligations of the person in the international declarations of human rights 4.1 theoretical substantiation of the category “information human obligations” 5. conclusions references cross-embedded relationship nature of human rights-related treaties and instruments with environment-related sustainable development goals the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 205 cross-embedded relationship nature of human rights-related treaties and instruments with environment-related sustainable development goals b. suresh1 asha sundaram2 abstract: it is imperative that treaties & instruments and united nations sustainable development goal (sdg) must be analysed considering their interdependencies and mutually reinforcing nature. the paper examines the cross embedded relationship (cer) nature of core human rights-related treaties & instruments (hr-t&i) in environment-related sdgs (e-sdg) in driving a structured transformation process toward inclusive economic growth, adhering to human rights values that are environmentally centric and sustainable in the true sense. some core hr-t&i explicitly recognise cer, as observed in textual analysis. the study reveals a varied level of the cross embedment relationship index (ceri) between the provisions of core hr-t&i and e-sdg, thereby indicating the importance of human rights principles in e-sdg and the significance of environment orientation in core hr-t&i. linking core hr-t&i provisions with e-sdg and extra-legal compliance mechanism of sdgs can produce positive synergies in realising sdg objectives. keywords: sustainable development, human rights, international treaties & instruments, un sdgs, environment targets, cross embedded relationship, cross embedded relationship index. summary: 1. introduction and study background: 1.1 study background, 1.2 selection of e-sdg, 1.3 aim of the paper; 2. theoretical framework principles of cer between core hr-t&i and e-sdg; 3. textual analysis of core hr-t&i in the context of e-sdg: 3.1 approach, 3.2 udhr, 3.3 icerd, 3.4 icescr, 3.5 iccpr, 3.6. cedaw, 3.7 crc, 3.8 icrmw, 3.9 crpd; 4. analysis and discussion on cer of core hrt&i with e-sdg: 4.1 approach, 4.2 analysis of cer of core hr-t&i with e-sdg 12, 4.3 analysis of cer of core hr-t&i with e-sdg 13, 4.4 analysis of cer of core hr-t&i with e-sdg 14. 4.5 analysis of cer of core hr-t&i with e-sdg 15; 5. quantitative characterisation of cer and cross embedded relationship index; 6. importance of cer nature of core hr-t&i with e-sdg and conclusion. 1. introduction and study background 1.1. study background internationally recognised human rights (ihr) and the environmental law frameworks have not yet been integrated despite interrelated and interconnected relations between the two fields as recognised by the 1972 stockholm declaration (un, 1972). 1 ceo & managing director, mahindra consulting engineers limited, india (dr.suresh.balakrishnan@ gmail.com). 2 professor of law, saveetha school of law, simts deemed university, india (lawdirector@saveetha.com). mailto:dr.suresh.balakrishnan@gmail.com mailto:dr.suresh.balakrishnan@gmail.com mailto:?subject= cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 206 environmental degradation and ihr abuse are two major issues in the contemporary world, but a common international law protecting the environment and ihr is unfound (olawuyi, 2014; akyuz, 2021). united nations (un) seventeen sustainable development goals (sdg), along with their 169 targets, as shown in figure 1, are components of the 2030 agenda for sustainable development (sd), as adopted by the un general assembly summit in 2015. seventeen sdgs and their corresponding targets pave an equitable roadmap for a development that blends three dimensions of sustainability: environmental-economical-social (ees) facets, factoring ihr. promotion, protection and fulfilment of ihr and environmental sustainability are viewed as complementary objectives at the core of sd. furtherance to the un conference on human environment held in stockholm in 1972, the linkage relationship between ihr and the environment has received increased attention. states, the human rights council (hrc), the international court of justice (icj), the world bank inspection panel, international institutions and civil society laid substantial interest in understanding the relationship between ihr and the environment. strongly grounded in ihr standards, the 2030 agenda endeavours to leave no one behind and anchor equality and non-discrimination, as enumerated below. “(i) the 2030 agenda is unequivocally anchored in ihr; (ii) the sdgs offer a new, more balanced paradigm for more sustainable and equitable development; (iii) the sdg targets are closely aligned with ihr standards; (iv) however, where there are gaps or inconsistencies, it will be critical figure 1: seventeen un sdgs source: https://www.un.org/sustainabledevelopment/news/communications-material/ https://www.un.org/sustainabledevelopment/news/communications-material b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 207 to ensure that implementation of the targets is consistent with ihr law; (v) the 2030 agenda aims to combat inequalities and discrimination and “leave no one behind”, and contains a strong commitment to the disaggregation of data; (vi) the new agenda includes perhaps the most expansive list of groups to be given special focus of any international document of its kind; (vii) the sdgs are universal and indivisible, and all goals must be implemented for all people in all countries; (viii) a strong accountability framework should be established at national, regional and global levels, including accountability for non-state actors; (ix) a ihrsensitive sdg indicator framework is needed, to monitor progress for all people, everywhere.”(ohchr, 2017) sdg finds various references to the ihr (spijkers, 2020). when analysing ihr anchorage of each sdg and its corresponding targets, it becomes evident that the 2030 agenda and ihr are intertwined and inextricably tied together (feiring and könig-reis, 2020) connecting legal scholars, practitioners, and policy-makers working on ihr and biodiversity issues, the report of swedbio (ituarte-lima, 2020) provides pathways and strategies that could enable humankind to reverse the intimidating tendencies of ecological deterioration, achieving a clean and healthy environment together with the sdg keeping ihr in the centre stage and leaving no-one behind (ituarte-lima, 2020). various international and regional treaties and instruments (t&i) on different subjects have evolved over time. many research studies, international reports and institutions have focused on analysing t&i in the context of sdgs (harrigton, 2021; huan et al., 2021). sdgs progress analysis incorporating provisions of t&i is a recent and evolving phenomenon. thus, the provisions of legally binding and nonbinding human rights-related treaties and instruments (hr-t&i) and targets of sdgs must be analysed considering their interdependencies and mutually reinforcing nature. only a little attempt has been made in the past in this direction. hr-t&i are effective in improving the environment, and hr-t&i act as a proactive facilitator in fostering sd and environment and ihr law to further sdgs progress. it is conventional to analyse the direct correlation between the provisions of environment-related t&i and environment-related goals (e-sdg). hr-t&i are predominantly pertinent to the principle of inclusive growth while guaranteeing that no one is eliminated or discriminated against in resource sharing, development process, and growth strategy. qualitative mapping of provisions of core hr-t&i and ihr is found in the literature (the office of the legal counsel in collaboration with the communicable diseases and department environmental determinants of health, 2022). despite sd being promulgated in international and national legal contexts in a structured manner, there is still a gap witnessed in integrating environmental and ihr principles. hence analysing the cross embedded relationship (cer) nature of hr-t&i in e-sdg assumes great importance in this context. in the past, some attempts to link sdg and a few hr-t&i have been carried out (the danish institute for human rights, 2008; wernham, 2016; the danish institute of human rights, 2017). the long-overdue recognition of the ihr and environment nexus and the subsequent ihr turn in the environment and climate change cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 208 litigation are also highlighted in the literature (fraser and henderson, 2022). however, the cer nature of hr-t&i in e-sdg is rarely analysed comprehensively, or analyses are confined to sdg dealing with health or water (scanlon, cassar and nemes, 2004) or right to food and nutrition (vivero pol and schuftan, 2016; aller celia, romero elena and carvajal marta, 2018) or clean energy or related areas (spijkers, 2020). this perceived gap needs to be addressed as a holistic approach by examining various legally binding and nonbinding core hr-t&i provisions and their linkage with the e-sdg. 1.2. selection of e-sdg seventeen 17 sdgs and corresponding 169 targets, in addition to their attribute of indivisibleness, inclusiveness and universality, lay considerable and equal importance on ees dimensions of sd with environmental dimensions integrated into socio-economic development plans (asian development bank, 2019). according to united nations environment programme (unep), "environmental dimensions" could imply a total of 86 targets out of 169 targets that either directly or indirectly pursue to reduce environmental damage or accentuate the pivotal role of natural resources and ecosystem services in guaranteeing human well-being and prosperity (unep, 2016). for practical reasons, the present paper could not consider all the 86 targets identified by unep (unep, 2016). instead, the paper focus on e-sdg, namely 12, 13, 14, and 15 and their corresponding environment-related target (et-sdg) proposed to have a direct relationship with responsible consumption and production, climate change, and sustainable marine and terrestrial ecosystems management. thus the e-sdg for the present study would include: “(i) e-sdg 12: ensure sustainable consumption and production patterns i.e. et-sdg 12.1-12.8, 12.a-12.c; (ii) e-sdg 13: take urgent action to combat climate change and its impacts i.e. 13.1-13.3, 13.a-13.b; (iii) e-sdg 14: conserve and sustainably use the oceans, seas and marine resources for sd, i.e. et-sdg 14.1-14.7, 14.a-14.c; and (iv) e-sdg 15: protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss, i.e. et-sdg 15.1-15.9, 15.a-15.c” (un general assembly, 2015, 2017). 1.3. aim of the paper the main aim of the present article is to examine the cer nature of core hr-t&i in e-sdg for driving a metamorphic transformation process toward inclusive economic growth, adhering to ihr values that are environmentally-centric and sustainable in a true sense. the perceived gap is addressed through: a. a systematic review of legally binding and nonbinding core hr-t&i, e-sdg, their relevance and applicability in sdg analysis. for practical reasons, the core hr-t&i selected for the study (ohchr, 2014) include (i) universal declaration of human rights (udhr), 1948 (un general assembly, 1948); (ii) international b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 209 convention on the elimination of all forms of racial discrimination (icerd), 1965 (un general assembly, 1965); (iii) international covenant on economic, social and cultural rights (icescr), 1966 (un general assembly, 1966b); (iv) international covenant on civil and political rights (iccpr), 1966 (un general assembly, 1966a); (v) convention on the elimination of all forms of discrimination against women (cedaw), 1979 (un general assembly, 1979); (vi) convention on the rights of the child (crc), 1989 (un general assembly, 1989); (vii) international convention on the protection of the rights of all migrant workers and members of their families (icrmw), 1990 (un general assembly, 1990); (viii) convention on the rights of persons with disabilities (crpd), 2007 (un general assembly, 2006)3; b. understanding of theoretical framework principles of cer between core hrt&i and e-sdg; c. analysing the cer nature of core hr-t&i in e-sdg that are necessary to be monitored for “(i) sustainable consumption and production patterns; (x) combating climate change; (xi) conservation and sustainable usage of marine resources; and (xii) protection, restoration and promotion of sustainable use of the terrestrial ecosystem.” (un general assembly, 2015). d. development of a quantitative measure of cer and relative quantitative analysis of cer both from core hr-t&i and e-sdg perspectives. 2. theoretical framework principles of cer between core hr-t&i and e-sdg this section discusses the major environmental threats and their impact on ihr; how environmental protection contributes to the realisation of ihr; the work of the ihr treaty bodies regarding the cer between ihr and the environment; and theoretical issues in the cer between ihr and the environment. the doctrine of sd can be traced to the stockholm declaration (un, 1972). the declaration recognised that there is “a fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing.”(un, 1972), thereby apparently recognising a right to an adequate environment. however, it lacks the force of a binding treaty. 2030 agenda is overtly anchored in ihr principles, recognises ihr as foundational to agenda, is strongly reflected in several sdgs and their associated targets, and is indistinguishably linked. many sdgs and their corresponding targets correspond to essential dimensions of states’ ihr commitments, as outlined in core hr-t&i and other 3. convention against torture and other cruel, inhuman or degrading treatment or punishment and international convention for the protection of all persons from enforced disappearance are not listed since no cer is found with e-sdg. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 210 documents (the international planned parenthood federation, 2015) relating to ihr. seventeen sdgs aimed to realise ihr for everyone, and elements of ihr and labour standards are manifested in several manners in more than 90% of sdg targets. the inclusive growth model approach reflects basic principles of ihr of non-discrimination and equality. ihr reinforces sdgs, and it is possible to achieve sdgs only when principles of participation, accountability and non-discrimination are respected. a significant level of convergence witnessed between ihr and the 2030 agenda suggests that prevailing ihr mechanisms can facilitate evaluating and implementing the 2030 agenda and sdgs. it underlines the agenda’s grounding in udhr and core hr-t&i and emphasises states’ responsibilities to respect, protect and promote ihr and fundamental freedoms for all, without distinction of any kind. the report of dag hammarskjöld foundation elucidates the manner of support provided by ihr to the 2030 agenda, the reason for considering an ihr-based approach for the 2030 agenda implementation, and how global and national ihr mechanisms can be leveraged in reinforcing sdg monitoring and review (feiring and könig-reis, 2020). atmospheric-related activities create environmental impacts as they exacerbate air emissions, resulting in air pollution, climate change and ozone depletion. land degradation, deforestation and desertification threaten the terrestrial environment, mostly of a regional nature. it is imperative to understand that development and the water environment are linked to environmental problems, including degradation of water quality, depletion of fresh water, and pressures on the oceans. hazardous waste, chemical contaminants and pollution are common environmental threats. biodiversity loss and natural and man-made disasters are other forms of threats to the environment. all of these factors are destructive to the environment, have negative impacts on human well-being, and have potential and visible impacts on ihr. environmental degradation may impair the attainment of ihr. it is decisively recognised that “environmental degradation can and does adversely affect the enjoyment of a broad range of ihr” (un human rights council, 2013). the numerous environmental threats have or potential to have an adverse impact on all aspects of ihr and well-being. environmental protection must be ensured to protect ihr and improve human well-being. it is imperative to consider environmental protection as an ihr-connected issue for a host of reasons like (i) ihr’s view focuses directly on environmental impacts on individual life, health, privacy and property rather than on states or the environment at large; (ii)) a focus on ihr can serve to guarantee enhanced environment quality standards based on the obligation of states to take adequate measures to control various forms of pollution affecting health and private life; (iii) the relationship between ihr and the environment helps to promote the rule of law in environmental-related matters as governments are held responsible for noncompliance in enforcing the law and lack of control on environmental pollution, violations and nuisances, including those caused by companies; (iv] ihr considerations have the potential to facilitate large scale public participation in environmental decision-making, environment and social impact assessment studies, access to justice and access to information; (v) a ihr approach may more categorically encompass public interest elements in environmental protection as an ihr”(boer and boyle, 2014). a b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 211 high-quality environment is a core component of ihr to life, health, and associated rights like the right to clean water, adequate housing, and food (lewis, 2018). as observed by the office of the un high commissioner for human rights (ohchr), stockholm declaration (un, 1972) reflects a “general recognition of the interdependence and interrelatedness of ihr and environment” (un human rights council, 2009). ohchr’s conclusion is also supported in other work wherein ihr law includes obligations relating to the environment that encompass both procedural and substantive obligations (un human rights council, 2013). despite literature available on the environment and ihr law and its relevance to sdgs (environmental law dimensions of human rights, 2015; gaiatascioni, 2016; arts, 2017; lewis, 2018; dulume, 2019; nikolaou, 2019; orellana, 2020), the relationship between ihr and the protection of the environment in international law is by no means simple or direct (boyle, 2012). environmental dimensions of ihr law are rarely discussed in the literature, notwithstanding increasing environmental cases in ihr jurisprudence. the resolution of the hrc acknowledged numerous important components of the cer between ihr and the environment as detailed below (un general assembly, 2011b, 2011a): “(a) sd and the protection of the environment can contribute to human well-being and the enjoyment of ihr; (b) environmental damage can have negative implications, both direct and indirect, for the effective enjoyment of ihr; (c) while these implications affect individuals and communities around the world, environmental damage is felt most acutely by those segments of the population already in vulnerable situations; (d) many forms of environmental damage are transnational in character, and that effective international cooperation to address such damage is important in order to support national efforts for the realisation of ihr; (e) ihr obligations and commitments have the potential to inform and strengthen international, regional and national policymaking in the area of environmental protection and promote policy coherence, legitimacy and sustainable outcomes” (un general assembly, 2011b, 2011a). the 16 framework principles on human rights and the environment, based primarily on international instruments and decisions by international institutions, were presented to the un hrc in 2018 by the special rapporteur on human rights and the environment (knox, 2018; knox, j.h. and morgera, 2022), setting out the obligations of states under ihr law because they relate to the enjoyment of a safe, clean, healthy and sustainable environment and provide a sturdy basis for understanding and implementing ihr obligations relating to the environment (knox, 2018; knox, j.h. and morgera, 2022). cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 212 philosophical, theoretical and legal perspectives of ihr and the environment are discussed in the literature (leib, 2011). the theoretical discussion involves two core issues: (i) analysing the nature and type of the relationship between ihr and the environment; and (ii) examining the scope of a new ihr for a healthy environment for recognition by the international community. three major theoretical approaches are identified in the literature (un general assembly, 2011a; boer and boyle, 2014; kaltenborn, krajewski and kuhn, 2020) for the above-cited first issue; (i) positioning the environment as a “pre-condition to the enjoyment of ihr.”; thereby accentuating that life and human dignity are only possible to achieve whenever people have access to an environment with certain basic qualities. air, water, land, soil and noise pollution causing environmental degradation can affect the attainment of specific rights, such as the rights to life, food and health; (ii) ihr is coined as “tools to address environmental issues, both procedurally and substantively”; thereby emphasising the possibility of using ihr to achieve adequate levels of environmental protection. in the context of a procedural perspective, access to information, participation in public affairs and access to justice and other such rights are essential in establishing governance structures that facilitate society to adopt fair decision-making processes on matters related to the environment. the environmental aspects of some of the protected rights are highlighted in the substantive part; (iii) integrating ihr and the environment under the sd, thereby underlining the need to treat societal objectives in an integrated manner with ees justice factoring in the concept of sd. the above-discussed three approaches have profoundly influenced global vision, policymaking, development of credible jurisprudence relating to ihr and the environment and the debate over the recognition and acceptance of a new ihr for a healthy environment (un general assembly, 2011a; boer and boyle, 2014; kaltenborn, krajewski and kuhn, 2020). the three approaches cited above are compatible, capable of coexisting and do not necessarily exclude one another. another school of thought (akyuz, 2021) is that ihr and the environment have cer in two ways (i) the environment is seen as a pre-condition of the realisation of ihr; (ii) ihr can be an effective tool for the attainment of environmental safety. these two relations are brought together under the aegis of the environment. the recognition of the close relationship between ihr and the environment has largely taken two forms: (a) the adoption of a new explicit right to the environment characterised as healthy, safe, satisfactory, or sustainable; and (b) heightened attention to the relationship to the environment of already recognised rights, such as the right to life and health (un human rights council, 2013). b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 213 the second core issue mentioned above, namely examining whether the international community recognises a new ihr for a healthy environment, relates to consideration for the recognition of an ihr for a healthy environment and divergent views are seen in its recognition mode and legal implementation mode (un general assembly, 2011a). based on the theoretical framework principles of cer between hr-t&i and e-sdg, the two arguments can be cited to characterise the cer between hr-t&i and et-sdg (shelton, 2006); (i) legally binding and nonbinding hr-t&i incorporates ihr principles to include an environmental dimension when environmental degradation averts complete fulfilment of the guaranteed rights; and (ii) legally binding and nonbinding hrt&i demonstrate a new substantive ihr to a safe and healthy environment. in the first argument, hr-t&i seeks to ensure that environmental conditions do not deteriorate to a stage wherein the substantive right to life, health, culture, family, private life, and other ihr is seriously impaired. by focusing on the impact of environmental damage on existing ihr, this argument is used to deal with the most serious cases of real or imminent pollution. the core advantage of this argument is that existing ihr complaint procedures may be deployed against those states having environmental protection levels below a cut-off stage that must be maintained to achieve any of the guaranteed ihr. using existing ihr law has limitations as it cannot be readily deployed for resolving threats in certain peculiar situations where other species or ecological processes have no direct linkage with human well-being. the second argument is to frame a new ihr to an environment that is not well-defined entirely in an anthropocentric manner; a safe environment for humans, ecologically balanced and sustainable in the true sense. the theoretical approach led to developing and adopting several hr-t&i that reflect the growing relationship between ihr and the environment. several hr-t&i concluded since the stockholm conference have included explicit references to the environment or recognised a right to a healthy environment. the core hr-t&i have addressed the environmental dimensions of the rights protected under their respective treaties differently in the form of general comments, decisions concerning individual petitions and concluding observations. ihr mechanisms have also clarified the linkages between ihr and the environment. many sources, including the hrc, the committee on economic, social and cultural rights, and the special rapporteurs, have identified environmental threats to the right to the enjoyment of the highest attainable standard of physical and mental health (un human rights council, 2013). typically an analytical study on the subject needs to examine the key components of the cer between core hr-t&i and e-sdg, with emphasis on (i) the conceptual relationship between core hr-t&i principles and e-sdg; (ii) environmental threats to core hr-t&i principles; (iii) mutual reinforcement of e-sdg and core hr-t&i protection; and (iv) extraterritorial dimensions of core hr-t&i and e-sdg (un general assembly, 2011a). the study presents the key components of the cer between various core hr-t&i and e-sdg, as enumerated earlier. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 214 3. textual analysis of core hr-t&i in the context of e-sdg 3.1. approach the ihr provides direction for the deployment of the 2030 agenda for sd, and similarly, the 2030 agenda and the sdgs can contribute significantly to achieving the ihr. a textual analysis of the core hr-t&i is also provided, focusing on possibilities for cer with e-sdg. the substantive rights, negative and restrictive obligations for states to avoid initiating activities that may hinder the ihr, states' positive and proactive obligations to protect and comply with the ihr, procedural obligations for ensuring access to information and performing environmental and social impact assessments, the fundamental right to participate in government and public affairs, public participation in environmental decisionmaking and remedy mechanisms for ihr violations are analysed. the section gives various provisions of legally binding and nonbinding core hr-t&i in the context of e-sdg, with a qualifying statement that the hr-t&i list is not comprehensive or chronological. 3.2. udhr the udhr defines all peoples as free and equal in rights and dignity, without distinction of any kind. equality before the law, right to equal protection without discrimination, freedom of opinion and expression, and right to safe and healthy working conditions are inherent to these rights. it is essential to appreciate the fact the ihr should encompass the right to a safe, clean, healthy, and sustainable environment. this is enabled through a right of access for everybody for the identified basic resources like clean airwater and sustainable clean energy, being integral to the full enjoyment of a wide range of ihr, including but not limited to the rights to life, and health, food, water and sanitation (gordon brown, 2016). from the udhr onward, hr-t&i have established that states should provide an “effective remedy” for violations of their protected ihr. the important articles of udhr (un general assembly, 1948) in the context of cer with e-sdg would include: art. 3: “everyone has the right to life, liberty and security of person.” art. 8: “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted..”. art. 19: “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information...” the right to information is also critical to the exercise of other rights, including rights of participation and are “both rights in themselves and essential tools for the exercise of other rights, such as the right to life, the right to the highest attainable standard of health, the right to adequate housing and others” (un human rights council, 2008, 2013). the ihr of all persons to seek, receive and impart information is provided for, and they include information on b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 215 environmental matters. the ihr obligations relating to the environment include a general obligation of non-discrimination in their application, particularly the right to equal protection under the law, which is protected by the udhr (un human rights council, 2013). art. 21.1: “everyone has the right to take part in the government of his country…” art. 25.1: “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security …...”. the right shall also include a clean environment. art. 26.2: “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms…..” art. 27.1: “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” art. 27.2: “everyone has the right to the protection of the moral and material interests ….” art. 28: “everyone is entitled to a social and international order in which the rights and freedoms …...” based on the above textual analysis, figure 2 depicts the provisions of udhr and cer with e-sdg 12-15. figure 2: provisions of udhr and cer with e-sdg 12-15 cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 216 3.3. icerd the proscription against racial discrimination is fundamental and intensely engrained in international law. icerd is one of the core hr-t&i against racial discrimination in different areas of private and public life. states parties have stated that racial discrimination should be prohibited and have complied with the convention's provisions. the important articles of icerd (un general assembly, 1965) in the context of cer with e-sdg would include: art. 2.1: “states parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms….” art. 5: “in compliance with the fundamental obligations laid down in article 2 of this convention, states parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction……:” art. 5(a): “the right to equal treatment before the tribunals and all other organs administering justice.” art. 5(c): “political rights, in particular the right to participate in the elections to vote and to stand for election on the basis of universal and equal suffrage, to take part in the government as well as in the conduct of public affairs at any level and to have equal access to public service.” art. 5(e): “economic, social and cultural rights, in particular:” art. 5(e)(i): “the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.” art. 5(e)(vi): “the right to public health, medical care, social security and social services.” based on the above textual analysis, figure 3 depicts the provisions of icerd and cer with e-sdg 12-15 b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 217 3.4. icescr icescr recognises a wide range of economic, social, and cultural rights; the right to health, education, work, social security, and culture without discrimination as to ethnicity, colour, sex, language, religion, political or other opinions, national or social origin, economic status, birth or other status. icescr recognises, in particular, the right of every individual to the enjoyment of the highest attainable standard of physical and mental health; the right of every individual to a decent standard of living for oneself and one’s family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions. it also recognises the right of all persons to benefit from fair working conditions, which, in particular, ensure safe and healthy working conditions. states parties to the covenant must make efforts to guarantee the full realisation of the rights referred to in the covenant, including those required to (i) reduce stillbirth and infant mortality and provide for the healthy development of children; (ii) improve all aspects of environmental and industrial hygiene; (iii) prevent, treat, and control epidemic, endemic, occupational, and other diseases; and (iv) create conditions that would assure medical service and medical attention to all in the event of sickness. the important articles on icescr (un general assembly, 1966b) in the context of cer with e-sdg include: art. 1.2: “all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. in no case may a people be deprived of its own means of subsistence.” figure 3: provisions of icerd and cer with e-sdg 12-15 cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 218 art. 2.1: “each state party to the present covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant….” art. 2.2: “the states parties to the present covenant undertake to guarantee that the rights enunciated in the present covenant will be exercised without discrimination of any kind ….”. the responsibilities of states to proscribe discernment and ensure equal and effective protection against discrimination apply to the equal enjoyment of ihr relating to a safe, clean, healthy and sustainable environment. art. 3: “the states parties to the present covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present covenant.” art. 11.1: “the states parties to the present covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions…*.” art. 11.2; “the states parties to the present covenant, recognising the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:” art. 11.2(a): “to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources.” art. 11.2(b): “taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.” art. 12.1: “the states parties to the present covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” art. 12.2: “the steps to be taken by the states parties to the present covenant to achieve the full realisation of this right shall include those necessary for:” b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 219 art. 12.2(b): “ the improvement of all aspects of environmental and industrial hygiene.” art. 12.1 and 12.2: the right to the highest attainable standard of physical and mental health implies the enjoyment of, and equal access to, appropriate health care and, more broadly, to goods, services and conditions which enable a person to live a healthy life. underlying determinants of health include adequate food and nutrition, housing, safe drinking water and adequate sanitation, and a healthy environment (un committee on economic social and cultural rights (cescr), 1999) art. 13.1: “the states parties to the present covenant recognise the right of everyone to education. they agree that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms…..” art. 15.1: “the states parties to the present covenant recognise the right of everyone:” art. 15.1(b): “to enjoy the benefits of scientific progress and its applications.” art. 15.1(c): “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” art. 15.2: “the steps to be taken by the states parties to the present covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.” art. 15.3: “the states parties to the present covenant undertake to respect the freedom indispensable for scientific research and creative activity.” art. 15.4: “the states parties to the present covenant recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.” based on the above textual analysis, figure 4 depicts the provisions of icerscr and cer with e-sdg 12-15. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 220 3.5. iccpr according to the iccpr, all human beings have the inherent right to life; that no person be arbitrarily deprived of his or her life. each state party to the covenant must respect all persons on its territory and subject to its jurisdiction without distinction of any nature whatsoever. ethnic origin, colour, gender, language, religion, political or other ideology, national or social origin, economic status and situation, birth or other status in matters of equality, it recognises that everyone is equal before the law and has the right to equal protection before the law, without discrimination. it also establishes that all peoples have the right to self-determination, under which they freely determine their political status and continue their economic, social and cultural development. all peoples are eligible to dispose of their natural wealth and resources, without restrictions, for their ends, without prejudice to any obligations or restrictions arising out of economic co-operation, evolved on mutual benefit and international law. under no circumstances is it possible to deprive a people of their means of subsistence. the important articles of iccpr (un general assembly, 1966a) in the context of cer with e-sdg would include: art. 1.2: “all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of figure 4: provisions of icescr and cer with e-sdg 12-15 b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 221 mutual benefit and international law. in no case may a people be deprived of its own means of subsistence.” art. 2.1: “each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present covenant, without distinction of any kind, such as …” art. 2.3(a): “each state party to the present covenant undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” art. 6: the right to life is explicitly protected. the hrc has adopted the right to life as the “supreme right”, “basic to all ihr”, and it is a right from which no derogation is permitted even in times of public emergency (un human rights committee (hrc), 1982; un committee on economic social and cultural rights (cescr), 2000). moreover, the committee has clarified that the ihr to life imposes responsibilities on states to proactively adopt positive measures for its protection, including taking adequate measures to decrease infant mortality, malnutrition and epidemics (un human rights committee (hrc), 1982). in general comment no. 36 (un human rights committee (hrc), 2019), the committee stated, among other things, that the duty of states to protect life: “implies that states parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity,” which may include “degradation of the environment.” (un human rights committee (hrc), 2019). art. 6.1: “every human being has the inherent right to life. this right shall be protected by law. no one shall be arbitrarily deprived of his life.” art. 16: “everyone shall have the right to recognition everywhere as a person before the law.” art. 19.1: “everyone shall have the right to hold opinions without interference.” art. 19.2: “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” the right to information is also critical to the exercise of other rights, including rights of participation. the rights to information and participation are “both rights in themselves and essential tools for the exercise of other rights, such as the right to life, the right to the highest attainable standard of health, cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 222 the right to adequate housing and others” (un general assembly, 1966a; un human rights council, 2008, 2013). the ihr of all persons to seek, receive and impart information include information on environmental matters. art. 25(a): “to take part in the conduct of public affairs…” art. 25(b): “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” based on the above textual analysis, figure 5 depicts the provisions of iccpr and cer with e-sdg 12-15. figure 5: provisions of iccpr and cer with e-sdg 12-15 3.6. cedaw cedaw condemns discrimination against women in all its forms and recognises the rights and obligations of states in the promotion and protection of women’s rights. states should eradicate any act or practice of discrimination against women and, in particular, ensure that public authorities and institutions take all appropriate measures to eliminate discrimination against women in the health care field to ensure an equal basis between men and women, access to health care services. cedaw also recognises the right of all women to safe working conditions. it further establishes the obligation of states parties to take all appropriate measures to eliminate discrimination against women in rural areas to ensure an equal basis between men and women, among other things, include, including participation in rural development and reaping the benefit of such development, ensuring their right to enjoy adequate living conditions, particularly in the areas of housing, sanitation, electricity and water supply, transport, and communications. cedaw provides a more detailed framework for protecting women's rights and ensuring they have a voice in public decisions. b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 223 the important articles on cedaw (un general assembly, 1979) in the context of cer with e-sdg include: art. 2(b): “states parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, undertake to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.” the committee on the elimination of discrimination against women has identified many types of environmental harm, including natural disasters, climate change, nuclear contamination and water pollution, that can adversely affect ihr protected under the cedaw (un general assembly, 1979; un human rights council, 2013). art. 7(a): “to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies.” art. 7(b): “to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.” art. 7(c): “to participate in non-governmental organisations and associations concerned with the public and political life of the country.” art. 10(c): “the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education…..” art. 10(h): “access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.” art. 11.1(a): “the right to work as an inalienable right of all human beings.” art. 11.1(b): “the right to the same employment opportunities..” art. 11.1(c): “the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining….” art. 11.1(d): “the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment…” art. 11.1(f): “the right to protection of health and to safety in working conditions….” cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 224 art. 11.2: “states parties shall take all appropriate measures to eliminate discrimination against women in the field of employment….” art. 14.2: “states parties shall take all appropriate measures to eliminate discrimination against women in rural areas…..” art. 14.2(g): “to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform …...” art. 14.2(h): “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.” based on the above textual analysis, figure 6 depicts the provisions of cedaw and cer with e-sdg 12-15. figure 6: provisions of cedaw and cer with e-sdg 12-15 3.7. crc crc recognises children's right to life, physical, mental, and moral integrity and health, the right to safe and healthy working conditions for adolescents, and their right to a healthy environment. it further guarantees the right of children and adolescents to rest and leisure and equal opportunities for cultural, artistic, and recreational activities. crc also recognises the right of children to enjoy the highest attainable health standard and services for the treatment of illness and rehabilitation of health. to this end, states parties must pursue full implementation of this ihr and, in particular, take appropriate steps to combat disease and malnutrition, including within the framework of primary health care, among other aspects, the application of readily available technology and the provision of adequate nutritious foods and clean drinking-water, dovetailing the dangers and risks of environmental pollution. further, the convention provides that children’s education should b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 225 be directed, among other things, to instil in them respect for the natural environment. the committee on the rights of the child (un general assembly, 1989; un human rights council, 2013) recognised and addressed the issue of considering environmental hazards as barriers to attaining the right to health and other rights. the important articles of crc (un general assembly, 1989; wernham, 2016) in the context of cer with e-sdg would include: preamble: “bearing in mind that the peoples of the un have, in the charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom.” “recognising that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration.” “recognising the importance of international cooperation for improving the living conditions of children in every country, in particular in the developing countries....” art. 2.1: “states parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind…” art. 2.2: “states parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of …” art. 4: “states parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present convention…” art. 6.1: “states parties recognise that every child has the inherent right to life.” art. 6.2: “states parties shall ensure to the maximum extent possible the survival and development of the child.” the right to life is explicitly protected under crc and links it to the obligation of states for the survival and development of the child; accordingly, general comment no. 7 (2006) (un committee on the rights of the child (crc), 2006) suggest that the survival and development of the child need to be implemented in a holistic manner, “through the enforcement of all the other provisions of the convention, including rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment …”. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 226 art. 12.1: “states parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child….” art. 13.1: “the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers ….” art. 15.1: “states parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly.” art. 17: “states parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources ….:” art. 23.1: “states parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions, which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.” art. 24.1 “states parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.” art. 24.2: “states parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:” art. 24.2(c): “to combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution.” art. 24.2 and 24.2(c): the states parties shall take appropriate measures to combat disease and malnutrition with due consideration to the dangers and risks of environmental pollution. crc outlines a variety of additional requirements that are relevant to the protection of children in the context of climate change. art. 27.1: “states parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.” art. 27.3: “states parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall, in case b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 227 of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.” art. 28.3: ”states parties shall promote and encourage international cooperation in matters relating to education…..” art. 29.1(a): “states parties agree that the education of the child shall be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential;.” art. 29.1(e): “the development of respect for the natural environment.” states have acknowledged that the education of the child needs to focus, among other things, on the development of respect for ihr and the natural environment. art. 30: “in those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right..” art. 37(c): “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person….” children must be recognised as active participants and custodians of natural resources in promoting and protecting a safe and healthy environment (un committee on the rights of the child (crc), 2003). benefiting from near-universal ratification, the crc obliges states to take measures to ensure the realisation of all rights under the convention for all children under their jurisdiction. the crc also obliges states to take measures to protect children's right to life, survival and development, including addressing pollution and environmental degradation. significant divergent views are witnessed in analysing provisions of the crc(wernham, 2016; the danish institute of human rights, 2017). some reports consider that all of the sdgs are relevant for children and not only those specifically referring to children, and the distinction between child-and adult-specific sdgs is not rigid (wernham, 2016). some authors(the danish institute of human rights, 2017) prefer to cite no indirect reference or only a few articles, while others adopt a substantial citation level (wernham, 2016). the reason cited for such deliberate broad interpretation can be explained with an example of sdg target 12.4: “by 2020, achieve the environmentally sound management of chemicals and all wastes throughout their life cycle, in accordance with agreed international frameworks, and significantly reduce their release to air, water and soil in order to minimise their adverse impacts on human health and the environment” (un general assembly, 2015); responds to no rights directly relating to the child; on the other hand a broad interpretation include convention art. 24.2 (c) taking into consideration the dangers and risks of environmental pollution of many children put at risk living near industrial establishments, and similar views of broad interpretation are found in the literature (wernham, 2016). based on the above textual analysis, figure 7 depicts the provisions of crc and cer with e-sdg 12-15. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 228 figure 7: provisions of crc and cer with e-sdg 12-15 b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 229 3.8. icrmw icrmw aims to protect migrant workers and their families from exploitation and violations of the ihr, whatever their migratory status. icrmw reaffirms the fundamental rights embodied in the udhr and other hr-t&i. icrmw defines civil and political rights related to the specific situation of migrant workers and includes provisions on violations of migration legislation and prohibitions. it also defines the economic, social and cultural rights of migrant workers concerning their particular situation, such as the right to basic health care or the right to education for migrant workers' children. the articles of icrmw (un general assembly, 1990) in the context of cer with et-sdg would include: art. 7 “states parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present convention without distinction of any kind such as…..” art. 9: “the right to life of migrant workers and members of their families shall be protected by law.” art. 41.1: “migrant workers and members of their families shall have the right to participate in public affairs of their state of origin and to vote and to be elected…” art. 41.2: “the states concerned shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights.” art. 42.1: “states parties shall consider the establishment of procedures or institutions through which account may be taken, both in states of origin and in states of employment, of special needs, aspirations and obligations of migrant workers and members of their families and shall envisage, as appropriate, the possibility for migrant workers and members of their families to have their freely chosen representatives in those institutions.” art. 42.2: “states of employment shall facilitate, in accordance with their national legislation, the consultation or participation of migrant workers and members of their families in decisions concerning the life and administration of local communities.” art. 42.3: “migrant workers may enjoy political rights in the state of employment if that state, in the exercise of its sovereignty, grants them such rights.” based on the above textual analysis, figure 8 depicts the provisions of icrmw and cer with e-sdg 12-15. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 230 3.9. crpd the objective of the crpd is to promote, protect and ensure the full and equal enjoyment of all ihr and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. crpd, having an explicit dimension of social development, gives a new dimension to viewing disabled persons, people with rights who are equipped to claim those rights and make decisions pertaining to their lives not only based on their free and informed consent but also on being active members of society. the crpd generally classifies persons with disabilities and reiterates that all persons with various disabilities must enjoy all fundamental freedoms and the ihr. it elucidates and qualifies (i) how all groups of ihr apply to persons with disabilities; (ii) recognises areas where adaptations need to be made for persons with disabilities to efficiently exercise their ihr; (iii) areas where their ihr have been desecrated; and (iv)where protection of ihr must be reinforced. the important articles of crpd (un general assembly, 2006) in the context of cer with e-sdg would include: art. 4.3: “in the development and implementation of legislation and policies to implement the present convention, and in other decisionmaking processes concerning issues relating to persons with disabilities, states parties shall closely consult with and actively involve persons with disabilities, including children with disabilities….” art. 5.1 “states parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.” art. 5.2 “states parties shall prohibit all discrimination on the basis of disability and guarantee to figure 8: provisions of icrmw and cer with e-sdg 12-15 b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 231 persons with disabilities equal and effective legal protection…..” art. 9.2(g): “promote access for persons with disabilities to new information and communications technologies and systems, including the internet.” art. 9.2(h): “promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage so that these technologies and systems become accessible at minimum cost.” art. 10: “states parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.” art. 11: “states parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.” art. 21(a): “providing information intended for the general public to persons with disabilities in accessible formats and technologies….” art. 21(b): “accepting and facilitating the use of sign languages, braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions.” art. 21(c): “urging private entities that provide services to the general public, including through the internet, to provide information and services in accessible and usable formats for persons with disabilities.” art. 21(d): “encouraging the mass media, including providers of information through the internet, to make their services accessible to persons with disabilities.” art. 21(e): “recognising and promoting the use of sign languages.” art. 24.3(a): “facilitating the learning of braille, alternative script, augmentative and alternative modes, means and formats of communication…” art. 24.3(b): “facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community.” based on the above textual analysis, figure 9 depicts the provisions of crpd and cer with e-sdg 12-15. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 232 4. analysis and discussion on cer of core hr-t&i with e-sdg 4.1. approach as detailed in above considerations, most of listed core hr-t&i (i) contain substantive rights, such as ihr to life, health, and an adequate standard of living, supported by a set of (a) negative and restrictive obligations for states in order to avoid initiating activities that may hinder the ihr or other actions of this type nullifying their obligation to comply with the ihr and (b) states' positive and proactive obligations to protect and comply with the ihr; (ii) procedural obligations, that recognise ihr of all persons “to seek, receive and impart information” for ensuring access to information and performing environmental and social impact assessments; (iii) acknowledging the fundamental right of every individual to take part in the government of their country and in the conduct of public affairs; (iv) establishing and demonstrating that governments have an obligation to facilitate public participation in environmental decision-making in order to protect ihr against environmental harm; and (v) conceding that states should provide an “effective remedy” for ihr violations. the responsibilities of states to proscribe discrimination and to ensure equal and effective protection against discrimination also apply to the equal enjoyment of ihr relating to a safe, clean, healthy and sustainable environment. the responsibilities of states to deliver access to judicial and other procedures for effective remedies for violations of ihr also encompass remedies for violations of ihr pertinent to environmental issues (knox, j.h. and morgera, 2022). the baseline ihr of every individual to participate in the government of their country, including in the conduct of public affairs, is recognised. this right also includes participation in decision-making related to the environment (un general assembly, 1948, 1966a; un human rights council, 2013). to safeguard against environmental harm and for taking necessary measures for the full attainment of ihr that be contingent on the environment, states need to create a robust mechanism for the enjoyment of a safe, clean, healthy and sustainable environment, including establishing, maintaining figure 9: provisions of crpd and cer with e-sdg 12-15 b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 233 and enforcing effective legal and institutional frameworks (un committee on economic social and cultural rights (cescr), 2002; un committee on the rights of the child (crc), 2013; un human rights committee (hrc), 2019; knox, j.h. and morgera, 2022). the obligations of states to cooperate to achieve universal respect for and observance of ihr require them to work together to address transboundary and global threats to ihr. the reinforcing nature of core hr-t&i with et-sdg 12-15 is analysed. sections 4.2 to 4.5 give a cer nature of core hr-t&i with et-sdg 12-15, respectively, in a qualitative manner. the actual text of et-sdg 12-15 is analysed in more detail and is subjected to textual analysis, in which the language of et-sdg 12-15 is compared with authoritative codifications of the various core hr-t&i. with a qualifying statement that the hr-t&i list is not comprehensive or chronological. 4.2. analysis of cer of core hr-t&i with e-sdg 12 eight substantive targets of e-sdg 12 and three targets on means of implementation focus on responsible consumption and production, encompassing a wide range of themes that could enable the decoupling of inclusive economic growth from natural resource use and material consumption and chemicals and waste valorisation. decoupling is imperative due to the rapid depletion of natural resources and ees considerations. decoupling and other initiatives on e-sdg 12 is a proactive initiative towards migrating to a sustainable business model and circular economy, triple bottom line and environment, social, governance (esg) reporting (b. suresh, erinjery joseph james and jegathambal, 2016; b. suresh, 2017; b.suresh, 2018; asian development bank, 2019). the report of the independent expert (un human rights council, 2013) on the issue of ihr obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment mapped ihr obligations relating to the environment global ihr treaties by analysing the text of the agreements of core hr-t&i. in addition to the text of the agreements, the reports examined relevant interpretations of the treaty bodies via the general comments, country reports and views on communications. the ihr to sustainable consumption and production patterns is a relatively new addition to the catalogue of ihr. while no direct or implicit cer with icerd and icrmw could be cited, explicit and implicit cer with e-sdg 12 can be found in other core hr-t&i. udhr has a low-level cer on this subject, reflecting remote cer with et-sdg 12.8, 12(a). icescr includes text relating to environmental and industrial hygiene matters in the workplace. coining social elements of good health, like environmental safety and awareness, can help in controlling and preventing infectious diseases. the un committee on economic, social and cultural rights has adopted various general comments relevant to the environment and sd, notably general comments 14 and 15, which interpret art. 11 and 12 of the icescr to include access to sufficient, safe, and affordable water for cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 234 domestic uses and sanitation (un committee on economic social and cultural rights (cescr), 2000, 2002). they also cover the prevention and reduction of exposure to harmful substances, including radiation and chemicals, or other detrimental environmental conditions that directly or indirectly impact human health (boer and boyle, 2014). general comment no. 14 elaborates on the right to health, and its underlying determinants, including a clean environment and specifically, mention that state parties proclaim national policies towards “reducing and eliminating pollution of air, water and soil, including pollution by heavy metals such as lead from gasoline” (un committee on economic social and cultural rights (cescr), 2000). in general comment no. 12 (un committee on economic social and cultural rights (cescr), 1999), the committee has also clarified the linkages between environmental safety and the realisation of the right to adequate food and such rights require the state party to adopt “appropriate ees policies”. these policies are essential for ensuring food is “free from adverse substances” contamination through inadequate environmental hygiene. it is also important to note that climate change, the productivity of land, and other natural resources were also mentioned in general comment no. 12 and that these elements are inextricably linked to the environmental health of soils and water. in general comment no. 15, the committee explicitly linked the right to water to environmental concerns, observing that adequate water supplies are those which are “free from micro-organisms, chemical substances and radiological hazards” as well as having “an acceptable colour, odour and taste for each personal and domestic use” (un committee on economic social and cultural rights (cescr), 2002). thus, enjoyment of the right to adequate water depends on the environmental purity of the water. thus satisfying the standards of the icescr cannot be done without adhering to responsible consumption and sustainable production practices. comparatively, icescr has several reasonable levels of explicit and implicit cer with e-sdg 12 with art. 12.1, 12.2(b) having a direct cer with et-sdg 12.4, and art. 11, 11.2(a)-11.2(b) with et-sdg 12.3. similar to udhr, no direct cer could be cited in iccpr. further, iccpr has a minimum cer on this subject, reflecting remote reference to et-sdg 12.2, 12.8 (the danish institute of human rights, 2017). cedaw has the implicit nature of cer confined to one target, i.e. et-sdg 12.8 (the danish institute of human rights, 2017). while no direct or indirect cer could be cited to crc with e-sdg 12 in certain reports (the danish institute of human rights, 2017), few reports make a substantial level of citations, both direct and by deliberately adopting a broad interpretation of the crc. direct cer with crc could be cited with art. 29.1(e) (et-sdg 12.2), and art. 24.2(c) (et-sdg 12.4). the rest of the cer with crc is only implicit in nature with broad interpretation, and accordingly, crc exhibit the moderate level of cer with e-sdg 12 (wernham, 2016). crpd has the implicit nature of cer confined to one target, i.e. et-sdg 12.8 (the danish institute for human rights, 2008). while the cedaw approach is to reduce the traditional burden on the women operating in an unhygienic environment with restricted technologies, crc reference is more on ensuring quality life for children from health considerations, and crpd refers to ensuring quality life for persons with disabilities. with low cer of core hr-t&i with e-sdg 12 and implicit references, some targets of e-sdg 12 adopt a language that explicitly expresses ihr principles. the cer between core hr-t&i and e-sdg 12 reflect (i) the conceptual relationship between core b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 235 hr-t&i principles and e-sdg 12 (et-sdg 12.3, 12.5, 12.7, 12.8, 12(b)); (ii) e-sdg 12 threats to core hr-t&i principles (et-sdg 12.4); (iii) mutual reinforcement of e-sdg 12 and core hr-t&i protection (et-sdg 12.2, 12.6, 12(c)); and (iv) extraterritorial dimensions of core hr-t&i and e-sdg 12 (et-sdg 12.1, 12(a)). based on the above textual analysis, figure 10 summarises the cer of hr-t&i with et-sdg 12 qualitatively. figure 10: summary of cer of legally binding and nonbinding core hr-t&i with e-sdg 12 in a qualitative manner cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 236 4.3. analysis of cer of core hr-t&i with e-sdg 13 e-sdg 13 on climate action is a significant issue and undoubtedly a critical factor in environmentally sustainable growth in countries at risk from climate change impacts. climate change has many interlinkages with e-sdg 12, 14, and 15. various initiatives subsequent to the unfccc paris agreement have led to sufficient financial and other resources flowing to climate change. the separate resolutions (7/23, 10/4, and 18/22) of the hrc identified the threat of climate change to individuals and communities and its implications on the enjoyment of ihr (boer and boyle, 2014). the ihr implications of climate change, including effects of mitigation and adaptation, have been studied by various authors in the context of impacts on (i) ecosystems and natural resources; (ii) physical infrastructure and human settlements; (iii) livelihoods, health, and security and concluded that even within the international goal of 2° c of global warming, these impacts will increase vividly in the near future thereby creating a serious interference with the exercise of fundamental ihr with a caution that mitigation, adaptation, and geoengineering measures can also result in ihr violation (koivurova, duyck and heinämäki, 2013; ipcc, 2014; ohchr, 2014). ohchr report (un human rights council, 2009) depicts the impairment of the enjoyment of ihr, including obligations of states under ihr law, due to the observed and projected impacts of climate change. however, noted that “it is less obvious whether, and to what extent, such effects can be qualified as ihr violations in a strict legal sense” (un human rights council, 2009). special rapporteurs have explained how climate change threatens a wide range of rights, including the rights to health, water and food (un human rights council, 2013). the core hr-t&i only implicitly refer to climate change as reflected in cer with e-sdg 13. the climate change considerations are vital to the 2030 agenda for sd. however, the cer of hr-t&i with climate change seems to be underdeveloped, even though the states are under various obligations in terms of respecting, protecting, fulfilment towards ihr principles, including obligations to mitigate domestic ghg emissions, protecting citizens against the harmful effects of climate change, and ensure that responses to climate change do not result in ihr violations (koivurova, duyck and heinämäki, 2013). however, there is a growing consensus that most or all of the ihr enumerated in the udhr constitute customary international law, and as such, they are binding on all states regardless of treaty ratification status (louis henkin, 1996; de schutter, 2010; meron, 2012; koivurova, duyck and heinämäki, 2013). the linkages between climate change and ihr principles are evident and clear to the extent that they will influence the full enjoyment of ihr. the progressive acknowledgement of ihr commitments concerning the environment and climate change is seen in the review of hr-t&i. integrated reporting under the 2030 agenda, ihr mechanisms, and the international climate change regime can help to ensure that responses to climate change are aligned with e-sdg 13, other relevant sdgs and related ihr obligations. states need to increase their ambition with respect to climate change mitigation and adaptation and work cooperatively to ensure the protection of ihr for all citizens worldwide. the various reports encapsulate some of the linkages and interconnections between environmental degradation arising from climate and ihr violations (limon, 2009). b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 237 table 1 presents, based on the a/hrc/10/61 report, the impacts of climate change on ihr and the identified cer core hr-t&i (un human rights council, 2009). the provisions of art. 12.2(b) of icescr comparatively have better refection to e-sdg 13. the icescr contains several additional rights—such as the rights to health and an adequate standard of living—which also require positive action from the state for their implementation. the icescr art. 2.1 requires parties to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means.” the udhr and iccpr also recognise an obligation of states to “promote universal respect for, and observance of” ihr and freedoms. the committee on economic, social and cultural rights has interpreted the icescr as encompassing extraterritorial obligations of this nature. unlike the icescr, the iccpr does include a jurisdictional limit. specifically, it directs each party “to respect and to ensure to all individuals within its territory and subject to its jurisdiction,” the rights recognised therein cedaw is more geared towards preventing acts of overt discrimination than addressing the discriminatory effects of actions on women. as such, the cedaw does not provide much guidance on government obligations relating to the disproportionate burden women will likely experience due to climate change. divergent views are witnessed in analysing provisions of crc concerning e-sdg 13. while no direct reference could be cited to crc with e-sdg 13, few reports make a substantial level of citations by deliberately adopting an enlarged interpretation of the e-sdg 13 and crc as an implicit reference and accordingly, crc exhibit a high level of cer with e-sdg 13 (wernham, 2016). icerd has a low level of cer with e-sdg 13, and comparatively, icescr, icrmw, and crpd have a considerable level of implicit cer with e-sdg 13 (the danish institute for table 1: analysis of impacts of climate change on ihr effects ihr affected reference to core hr-t&i articles extreme weather events right to life udhr 3; iccpr 6.1; crc 6.1 increased food insecurity and risk of hunger right to adequate food, right to be free from hunger udhr 25; icerd 5(e); icescr 11.1, 11.2(a), 11.2(b); cedaw 14,2(h); crc 24(c); crpd 25(f), 28.1 increased water stress right to safe drinking water icescr 11.1 and 12; cedaw 14,2(h); crc 24.2(c); crpd 28.2(a) stress on health status right to the highest attainable standard of health udhr 25.1; icerd 5(e)(iv); icescr 7(b), 10 and 12; cedaw 12 and 14.2(b); crc 24; icrmw 43.1(e), 45.1(c) and 70; crpd 16.4, 22.2 and 25 sea-level rise and flooding right to adequate housing udhr 25.1; icerd 5(e)(iii); icescr 11; cedaw 14.2; crc 27.3; icrmw 43.1(d); crpd 9,1(a), 28.1 and 28.2(d) cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 238 human rights, 2008; the danish institute of human rights, 2017). the rights mentioned in crpd in art. 11 (et-sdg 13.1) implicitly refer to disaster risks arising from climate change. despite implicit reference of core hr-t&i with e-sdg 13 and an underdeveloped situation, with the minimum number of et-sdg 13, a moderate level of cer is witnessed between core hr-t&i with e-sdg 13. the cer between core hr-t&i and e-sdg 13 reflect (i) e-sdg 13 threats to core hr-t&i principles (et-sdg 13.1, 13.3); (ii) mutual reinforcement of e-sdg 13 and core hr-t&i protection (et-sdg 13(b)); and (iii) extraterritorial dimensions of core hr-t&i and e-sdg 13 (et-sdg 13(a)). some targets of e-sdg 13 adopt a language that implicitly expresses ihr principles. based on the above textual analysis, figure 11 summarises the cer of hr-t&i with et-sdg 13 qualitatively. figure 11: summary of cer of legally binding and nonbinding core hr-t&i with e-sdg 13 in a qualitative manner 4.4. analysis of cer of core hr-t&i with e-sdg 14 e-sdg 14 on life below water addresses a set of problems becoming increasingly serious for reasons related to their direct impacts and the indirect stresses they place on the environment. for example, ocean acidification, overfishing, marine pollution and eutrophication are deteriorating coastal and marine ecosystems. e-sdg 14 has seven substantive targets that collectively aim to preserve the health and well-being of marine ecosystems and three targets focusing on means of implementation. b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 239 the ihr to protect life below water has a distinguishing feature. while no direct or implicit cer with udhr, icrmw and crpd could be cited, substantial direct cer with icescr (art. 12.1,12.2(b)) with et-sdg 14.1-14.3, art. 15.1(b), 15.2-15.4 with et-sdg 14.4, 14(a) and implicit cer is found in icescr (the danish institute for human rights, 2008; the danish institute of human rights, 2017). iccpr make only a few indirect cer with e-sdg 14, with only one article, i.e. art. 1.2 making cer with et-sdg 14.2, 14.6-14.7, 14(c). icerd and cedaw have no direct cer with e-sdg 14, and even indirect cer relates to only one target, i.e. et-sdg 14(b). based on the above textual analysis, figure 12 summarises the cer of hr-t&i with et-sdg 14 qualitatively. figure 12: summary of cer of legally binding and nonbinding core hr-t&i with e-sdg 14 in a qualitative manner cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 240 the ihr contained in the crc, such as rights to health, life, culture and education, all play a key role in advancing the et-sdg 14. children’s ihr can help ensure that resources from marine ecosystems are used in a way that allows both the present and future needs to be responsibly fulfilled. children’s ihr should find a place in e-sdg 14 debates considering the challenges posed by climate change and the ocean's key role in regulating the earth’s climate. to that end, states must ensure that children who want to defend their rights can effectively participate in decision-making and access justice freely and without fear of reprisal, with particular attention to indigenous children and other children that may be subject to discrimination (sweeney michael, 2021). even with moderate cer, divergent views are witnessed in analysing provisions of crc in relation to e-sdg 14. while no direct cer could be cited to crc with e-sdg 14 (the danish institute of human rights, 2017), few reports make a substantial level of citations by deliberately adopting an enlarged interpretation of the e-sdg 14 and crc as both explicit (art. 24.2(c) for et-sdg 14.1) and implicit reference (wernham, 2016). in the study undertaken to analyse the children’s ihr in the context of e-sdg 14, for example, preamble, art. 6, 13.1, 17(a)-17(e), 24.2.(a), 24.2.(c), 28.3, 29.1(e) is correlated with et-sdg 14.1; preamble, art. 13.1, 17(a)-17(e), 28.3, 29.1(e) with et-sdg 14.2, 14.4, 14.6; preamble, art. 13.1, 17(a)-17(e), 24.2.(a), 24.2.(c), 28.3, 29.1(e) with etsdg 14.3; preamble, art. 13.1, 17(a)-17(e), 24.2.(c), 28.3, 29.1(e) with et-sdg 14.5; preamble, art. 4, 13.1, 17(a)-17(e), 28.3, 29.1(e) with et-sdg 14.7; preamble, art. 13.1, 17(a)-17(e), 28.2, 29.19(e) with et-sdg 14.a-14.c (sweeney michael, 2021). with the moderate cer of core hr-t&i with e-sdg 14 comprising several implicit and explicit references, et-sdg 14.1-14.7 and 14.a-14.c adopts a language that implicitly expresses ihr principles. the cer between core hr-t&i and e-sdg 14 reflect (i) the conceptual relationship between core hr-t&i principles and e-sdg 14 (et-sdg 14.6); (ii) e-sdg 14 threats to core hr-t&i principles (et-sdg 14.3, 14.5); (iii) mutual reinforcement of e-sdg 14 and core hr-t&i protection (et-sdg 14.1, 14.2, 14.4, 14.7, 14.b,); and (iv) extraterritorial dimensions of core hr-t&i and e-sdg 14 (et-sdg 14.a, 14.c). 4.5. analysis of cer of core hr-t&i with e-sdg 15 several essential goods and services are linked to most sdgs. the serious concerns relating to e-sdg 15 include continued loss of land productivity, declining biodiversity, and poaching and trafficking of wildlife. e-sdg 15 has nine substantive targets that ensure the conservation and restoration of terrestrial and freshwater ecosystems and three targets focusing on means of implementation. the ihr to protect life on land has cer with e-sdg 15 (the danish institute for human rights, 2008; wernham, 2016; the danish institute of human rights, 2017). while no direct or implicit cer with icerd, cedaw, icrmw and crpd could be cited, explicit and implicit cer with e-sdg 15 can be found in other core hr-t&i. while only a few implicit cer to udhr and iccpr could be cited, substantial implicit cer with icescr and crc is seen. further, few reports make a substantial level of citations by deliberately adopting an enlarged interpretation of e-sdg 15 and crc as an implicit reference and accordingly, crc exhibit the maximum level of cer with e-sdg 15 (wernham, 2016). udhr make only a b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 241 few indirect cer with e-sdg 15 (art. 27.1 and 28 with et-sdg 15.a-15.b). several implicit cer can be seen in icescr relating to e-sdg. iccpr make only a few indirect cer with e-sdg 15, with only one article, i.e. art. 1.2 making cer with et-sdg 15.1-15.5. no cer could be cited to icerd, cedaw, icrmw and crpd with e-sdg 15 (the danish institute for human rights, 2008; the danish institute of human rights, 2017). despite implicit reference of core hr-t&i with e-sdg 15, a high level of cer is witnessed between core hr-t&i with e-sdg 15. the cer between core hr-t&i and e-sdg 15 reflect (i) the conceptual relationship between core hr-t&i principles and e-sdg 15 (etsdg 15.6, 15.9, 15.c); (ii) e-sdg 15 threats to core hr-t&i principles (et-sdg 15.4, 15.7); (iii) mutual reinforcement of e-sdg 15 and core hr-t&i protection (et-sdg 15.2, 15.8); and (iv) extraterritorial dimensions of core hr-t&i and e-sdg 15 (et-sdg 15.1, 15.3, 15.a-15.b). et-sdg 15.1-15.9 and 15.a-15.c adopts a language that implicitly expresses ihr principles. based on the above textual analysis, figure 13 summarises the cer of core hrt&i with et-sdg 15 qualitatively. figure 13: summary of cer of legally binding and nonbinding core hr-t&i with etsdg 15 in a qualitative manner cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 242 5. quantitative characterisation of cer and cross embedded relationship index the above discussions give a cer nature of core hr-t&i with et-sdg 1215 in a qualitative manner. however, quantitatively understanding the extent of cer between core hr-t&i, et-sdg, and e-sdg is also essential. hence the study evolved the cross embedded relationship index (ceri), a deterministic number on a scale of 0-4, as a quantitative measure of cer. the number of core hr-t&i articles that deal either explicitly or implicitly with the concerned et-sdg or e-sdg is computed and compared with a maximum number of core hr-t&i articles that deal either explicitly or implicitly across all the et-sdg or e-sdg. the mathematical expression of ceri is given below: =ceri x maximumx x 4i i n 1 equation 1 where cerii = ceri of the given et-sdg or given e-sdg as applicable on a scale of 0 to 4 xi = number of core hr-t&i articles covered in the given et-sdg or given e-sdg as applicable n = number of et-sdg or e-sdg as applicable =ceri y maximum y x 4j i n 1 equation 2 where cerij = ceri of the given core hr-t&i on a scale of 0-4 yj = number of core hr-t&i articles covered in the given e-sdg n = number of e-sdg table 2 and figure 14 to figure 16 present et-sdg wise, e-sdg wise and hrt&i wise ceri in a quantitative manner computed based on the textual analysis and mathematical modelling of cer. b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 243 table 2: et-sdg wise, e-sdg wise and core hr-t&i wise ceri in a quantitative manner et-sdg/e-sdg ceri et-sdg ceri et-sdg/e-sdg ceri et-sdg/e-sdg ceri 12.1 0.194 13.1 0.968 14.1 1.097 15.1 1.032 12.2 0.323 13.2 0.452 14.2 0.968 15.2 1.032 12.3 0.516 13.3 3.419 14.3 0.968 15.3 1.032 12.4 0.516 13.a 0.516 14.4 0.968 15.4 1.032 12.5 0.387 13.b 4.000 14.5 0.710 15.5 1.032 12.6 0.194 e-sdg 13 3.169 14.6 0.839 15.6 1.032 12.7 0.194 14.7 0.903 15.7 0.710 12.8 2.323 14.a 0.968 15.8 0.710 12.a 0.645 14.b 1.742 15.9 0.774 12.b 0.194 14.c 0.839 15.a 1.290 12.c 0.387 e-sdg 14 3.388 15.b 1.290 e-sdg 12 1.989 15.c 0.839 e-sdg 15 4.000 core hr-t&i udhr icerd icescr iccpr cedaw crc icrmw crpd ceri e-sdg 12 2.000 0.000 2.400 1.333 1.429 1.295 0.000 2.000 ceri e-sdg 13 4.000 4.000 1.486 4.000 4.000 1.727 4.000 4.000 ceri e-sdg 14 0.000 4.000 2.514 1.778 2.286 3.367 0.000 0.000 ceri e-sdg 15 2.000 0.000 4.000 2.222 0.000 4.000 0.000 0.000 figure 14: summary of et-sdg wise and core hr-t&i wise ceri on a quantitative basis cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 244 figure 16: summary of ceri of core hr-t&i and core e-sdg on a quantitative basis figure 15: summary of e-sdg wise and core hr-t&i wise ceri on a quantitative basis 6. importance of cer nature of core hr-t&i with e-sdg and conclusion it is essential to understand the development in a holistic manner that blends three dimensions of sustainability, namely environmental-social-economical facets or correspondingly planet-people-profit aspects or environment-equity-economy perspectives and all actions pertinently oriented towards providing innovative sustainable solutions for societal growth and sdgs. the sd approach is essential to secure longterm socially inclusive economic development and make the economy resilient to future contingencies. the negative impact on e-sdg has catastrophic multiplier effects on other targets of sdgs linked to social, industrial and economic growth. the ‘leaving no one behind’ commitment encourages a more ihr-friendly interpretation and its application to all sdgs. b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 245 ihr depend upon environmental protection, and environmental protection depends upon the exercise of existing ihr, like the right to information and political participation. despite the common principle, the two topics remain distinct and similar views are seen in the literature (shelton, 2006; shelton dinah, 2007; dinah, 2018). the reflection of ihr in the 2030 agenda and inextricably linked attributes of ihr and sdgs lends to analyse of the cer nature of core hr-t&i with e-sdg 12-15. as environmental consciousness increases, there is a greater understanding that the existence and development of humanity and the enjoyment of ihr depend on a safe and healthy environment. it is generally agreed that inadequate environmental conditions may impair the effective enjoyment of other listed rights, such as the rights to life, health, water and food. consequently, the need to protect and promote a healthy environment is essential not only for the good of the ihr but also to protect the common heritage of humankind. a substantial number of core hr-t&i demonstrate how environmental protection contributes to the enjoyment of ihr. the core hr-t&i framework provides a clear moral and legal justification for immediate and urgent action to protect the environment, chiefly for the benefit of all people. core hr-t&i mechanisms have addressed the environmental aspects of several ihrs, including rights to life, religion, property, health, water, food and culture. occasionally, core hr-t&i has looked directly at the right to a healthy environment but mainly at the environmental dimensions of more established rights. the examination of core hr-t&i leads to the conclusion that ihr and the environment are explicitly and implicitly interrelated, as such instruments recognise that e-sdg and corresponding targets play a vital role in protecting and promoting ihr. in a broader sense, core hr-t&i does not recognise a standalone right to a clean environment. a varied level of ceri is revealed between the provisions of core hr-t&i and et-sdg. some of the core hr-t&i explicitly recognise the cer as observed in the textual analysis, and a similar opinion is found in the literature (koivurova, duyck and heinämäki, 2013). the cer between ihr and environmental protection is undeniable, which is also reflected in earlier studies (shelton, 2006; shelton dinah, 2007; dinah, 2018). some hr-t&i concluded after the 1972 un conference on the human environment explicitly recognised the cer between ihr and the environment. hr-t&i, established prior to the 1972 un conference on the human environment, makes no explicit reference to the environment. however, core hr-t&i has interpreted their respective ihr to recognise the environmental dimensions of protected rights. in this regard, older core hrt&i recognise the cer between ihr and the environment by implication, for example, the environmental dimensions of rights to life, food, health, housing, property, and private and family life, among other things. procedural ihr and cross-cutting components of the ihr-based approach are also pertinent for environmental decision-making; for example, the right to involvement in political life, the right of specific groups to be involved and consulted in decision-making processes, and access to justice, due process, access, transparency and accountability. cross-embedded relationship nature of human rights-related treaties the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 246 the paper aims to encourage in-depth and broad-based exploration of the links and synergies between the e-sdg and core hr-t&i. building the cer and ceri between core hr-t&i and et-sdg and raising awareness can significantly contribute to enjoying ihr and a healthy environment. the growing awareness of the cer contributes to enjoying ihr and a healthy environment. a significant level of core hr-t&i provisions on the et-sdg raise awareness and build a narrative by making environmental degradation and ihr violations as potential material hazards. another important area linking core hrt&i and e-sdg is cultural goods and services related to the environment. among many cultural goods and services are “nature’s gifts”, and state parties are obligated to protect “nature’s gifts” from degradation and destruction to honour the right to cultural life. core hr-t&i has also clarified certain dimensions of the ihr and environment linkage. promoting ihr-based policies, particularly regarding sustainable management of natural resources, development planning, and action to combat climate change is expected to accelerate sdg progress. because the sdgs focus on sd, efforts to comply with the ihr to e-sdg will encourage states to adopt an sd-friendly interpretation of that right, considering the interests of future generations and the environment. cer and ceri of core hr-t&i with e-sdg understanding could provide the recognition of a general right to a healthy environment and guidance to the implementation of principles relating to the extraterritorial obligations of states, particularly in the area of environmental protection. cer and ceri analysis guide national and local governments and other local stakeholders on how to implement sustainable ihr to et-sdg at the local level. this view is also alignment with earlier studies (spijkers, 2020). however, the efforts to promote environmental sustainability can only be effective if they enable legal frameworks that guarantee ihr, such as the rights to information, participation and access to justice. internationally coordinated responses based on common ihr and environmental principles such as solidarity, accountability, transparency, equity, and justice are essential for addressing transboundary environmental issues such as climate change, biodiversity loss, pollution, and ecosystem management. the multi-faceted growth of environmental governance coupled with ihr principles throws substantial challenges, and sustainable technologies and practices with due consideration to ihr assume importance. evaluating the interdependency of e-sdg on core hr-t&i can facilitate accelerating sdgs progress. this paper provides insight into how ihr recommendations, established through core hr-t&i and e-sdg, can be utilised holistically in advancing sdgs. the cer and ceri between hr-t&i and et-sdg signify the need to include global legal indicators in et-sdg as an explicit reference. compliance with core hr-t&i could promote more effective implementation and monitoring, wherein the approach is to view the global environment and climate change as the common apprehension of humankind. seamless integration of e-sdg and legal aspects of core hr-t&i is important, and drivers for such initiative include (i) changing institutional framework from environmental and ihr perspective; (ii) signatory of core hr-t&i and enactment of acts and rules in congruence with ihr; (iii) resource uncertainty and security and ensuring equitable access; (iv) decoupling inclusive economic growth with natural resources and b. suresh; asha sundaram the age of human rights journal, 19 (december 2022) pp. 205-253 issn: 2340-9592 doi: 10.17561/tahrj.v19.7225 247 move towards a circular economy; (v) social impact of infrastructure and industrialisation initiatives and public-private partnership (ppp) legal framework and socio-environmental risk allocation models; (vi) complexity of nature of environmental crimes involved in rapid urbanisation and industrialisation in pursuit of economic gains and violation of ihr principles; (vii) complex nature of ihr law embedded in environmental law; (viii) corporate esg compliance and reporting; and (ix) competitive pressure, cost and profit issues. adoption and monitoring of legal indicators for sdgs are considered to provide a balance between development, ihr values and the environment through economic benefits by way of increased resource efficiency, innovation and reduced cost for environmental management while complying with ihr principles. the inclusion of global legal indicators factoring provisions of core hr-t&i in monitoring the progress of e-sdg can play a pivotal role in establishing a doctrine of sd in alignment with the philosophy of sdgs. linking core hr-t&i provisions with the e-sdg and extra-legal compliance mechanism of sdgs can produce positive synergies in realising sdg objectives. despite several t&i related to the environment and ihr provisions, there are still several challenges in curbing environmental degradation coupled with violations of ihr principles. a multi-pronged approach is required to tackle the problem of large-scale environmental hazards effectively and to evolve robust foundations for achieving progress in e-sdg while complying with ihr principles. on the industrial and urbanisation front, the initiatives would include (i) establishing state-of-the-art industrial infrastructure and eco-industrial parks; (ii) creating environmental infrastructure; (iii) practising circular economy principles; (iv) promoting sustainable and smart urbanisation; and (v) esg reporting. environmental and ihr laws must be widely understood, respected and enforced to advance sdgs. as a part of a capacity-building exercise, environment and ihr awareness, education and sensitising on the cer nature of core hr-t&i and e-sdg are essential for making progress in sdgs. there are wider environmental implications for civil, political, economic and social rights. it is imperative to appreciate that not all environmental rights are encapsulated in the listed core hr-t&i. even though it is not common to analyse linkages between core hr-t&i and e-sdg, in addressing global challenges like climate change, the approach of including ihr principles is gaining impetus. references akyuz, e. 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(2016) ‘mapping the global goals for sustainable development and the convention on the rights of the child’, unicef, pp. 1–125. available at: https:// www.unicef.org/media/60231/file. received: june 15th 2022 accepted: september 29th 2022 undocs.org undocs.org https://sustainabledevelopment.un.org/content/documents/10554unea https://sustainabledevelopment.un.org/content/documents/10554unea https://doi.org/10.1136/bmjgh-2016-000040 https://doi.org/10.1136/bmjgh-2016-000040 https://www.unicef.org/media/60231/file https://www.unicef.org/media/60231/file cross-embedded relationship nature of human rights-related treaties and instruments with env abstract 1. introduction and study background 1.1. study background 1.2. selection of e-sdg 1.3. aim of the paper 2. theoretical framework principles of cer between core hr-t&i and e-sdg 3. textual analysis of core hr-t&i in the context of e-sdg 3.1. approach 3.2. udhr 3.3. icerd 3.4. icescr 3.5. iccpr 3.6. cedaw 3.7. crc 3.8. icrmw 3.9. crpd 4. analysis and discussion on cer of core hr-t&i with e-sdg 4.1. approach 4.2. analysis of cer of core hr-t&i with e-sdg 12 4.3. analysis of cer of core hr-t&i with e-sdg 13 4.4. analysis of cer of core hr-t&i with e-sdg 14 4.5. analysis of cer of core hr-t&i with e-sdg 15 5. quantitative characterisation of cer and cross embedded relationship index 6. importance of cer nature of core hr-t&i with e-sdg and conclusion references intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 181 intersex legal activism. united nations on the human rights of intersex people* luísa winter pereira** abstract: for some years now, two intersex associations, brújula intersex and stop intersex genital mutilation, have been coordinating the participation in evaluation processes of the rights of intersex people convened by the united nations. this article will try to analyse the legal strategies of these two associations to obtain the condemnation of several states by the united nations. the ultimate goal is to draw a common thread of life stories, functioning of medical devices, silencing by governmental authorities, and possibilities for intersex people's agency. keywords: genital mutilation, intersex, sexual binarism, united nations. summary: 1. introduction. 2. systemic violence against intersex people. 3. united nations on intersex people. 3.1. committee on the rights of the child. 3.2. committee on the elimination of discrimination against women. 3.3. committee against torture. 3.4. committee on the rights of persons with disabilities. 3.5. human rights committee. 4. conclusions. 1. introduction on 3 august 2021, united states athlete athing mu won olympic gold in the 800m at the tokyo olympic games with a time of 1:55.21. at the previous games, in rio de janeiro, the gold had been won by south african athlete caster semenya, with an almost equal time: 1:55.28. caster semenya achieved her best time in paris in 2018, with a time of 1:54.25. however, she was unable to compete in tokyo. or, rather, she was forbidden to participate. the reason: she had higher levels of testosterone than the international association of athletics federations' standards allowed. the court of arbitration for sport (cas), in the case 2018/o/5794 mokgadi caster semenya v. international association of athletics federations,1 took up the iaaf's thesis that, “for sporting purposes, individuals with 5-ard are biologically indistinguishable from males without a dsd and have been shown to dominate in sport over ‘biological * article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. this text has also been produced within the framework of the vulnus project (inv-igu159-2021). ** research personnel training (pre2020-095576) under contract in the binasex project (pid2019107025rb-i00), attached to the department of constitutional law of the university of seville (lwinter@us.es). 1. it can be consulted at https://www.tas-cas.org/fileadmin/user_upload/cas_award_-_redacted_-_ semenya_asa_iaaf.pdf [accessed: 23 november 2021]. https://www.tas-cas.org/fileadmin/user_upload/cas_award_-_redacted_-_semenya_asa_iaaf.pdf https://www.tas-cas.org/fileadmin/user_upload/cas_award_-_redacted_-_semenya_asa_iaaf.pdf intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 182 females’ who, the iaaf asserts, have no chance to win when competing against such ‘biologically male’ athletes” (paragraph 503 cas 2018/o/5794). to justify semenya's sporting advantage over biological women, the cas relied on a study published in the british journal of sport medicine, which concludes that the upper limit of 5 nanomoles of testosterone per litre of blood is reasonable and proportionate as the distinguishing mark of the biological woman. semenya was left out of this definition.2 however, in august 2021, the same scientific team that had signed the study that served as the basis for the cas decision published an article in the same journal rectifying this preliminary study (bermon and garnier 2021). they argued that this was an exploratory study and that a causal inference between testosterone levels and athletic performance was not proven. over and above this rectification, moreover, and as i attempted to point out above, the difference in performance between semenya and athing mu (a non-intersex woman) was minimal and actually favoured the latter, who beat the former's time in an olympic competition. what the now retracted study justifying the cas's sentence did was to produce the woman: it universalised a normative ideal of woman as related to testosterone levels. other studies, on alimentary matters, are clear on this: environmental and alimentary factors condition testosterone levels (see for example lo et al. 2018, for alimentary factors; magid et al. 2018, for environmental factors). this decision of the cas and the difference it draws between the biological woman and the rest, which includes intersex women like semenya, is about the reproduction of the myth of testosterone. as katrina karkazis and rebeca jordan-young (2019) put it, it is about the production and imposition of an essence of femininity. it is even a strategy of racist colonisation (karkazis and jordanyoung 2018). in this article i would like to argue, following the thread of this introduction, that violence against intersex people has been constructed on the basis of the production of an essence of what it is to be a man and to be a woman, and that this production has been imposed colonially on our bodies, as a kind of local-globalised ontology. to this end, in the following section i will briefly outline what this kind of violence against the intersex population consists of. in the third and most extensive section of this study, i will focus on the legal strategies that intersex activism has developed to denounce such systemic violence within the united nations (un). i will finish with some concluding reflections. 2. systemic violence against intersex people in 2020, the european union agency for fundamental rights (fra) published the report a long way to go for lgtbi equality,3 focusing on the european union. an entire section was devoted to intersex people (section 4). the data are chilling: 2. for more information on the case, see carpenter 2020. 3. it can be consulted at https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-lgbti-equality-1_en.pdf [accessed: 21 november 2021]. https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-lgbti-equality-1_en.pdf luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 183 “[a]lmost two thirds (62%) of intersex respondents felt discriminated against in at least one area of life because of being intersex in the 12 months before the survey; 62% of intersex respondents did not provide -and were not asked fortheir or their parents’ consent before undergoing surgical intervention to modify their sex characteristics; intersex respondents say that discrimination because of their sex characteristics, bullying and/or violence are the major problems they face in the country they live in; one in five intersex respondents (19%) faced hurdles when registering their civil status or gender in a public document. these include denials of service or ridicule by staff (41%)” (european union agency for fundamental rights 2020: 51). here, the fra locates several foci of violence against intersex people: discrimination; unconsented medical interventions (especially surgery); harassment; registration obstacles; ridicule by state authorities. what do these data show us? we could distinguish between two types of violence: explicit and systemic. explicit violence embraces instances of forceful interruptions our daily lives. if we see a person robbing another person in the street, we will immediately detect that something has happened, that our everyday life has been fractured. harassment, mockery and discrimination of intersex people by individuals or institutions are instances of explicit violence. systemic violence, on the other hand, is more subtle. it is not the kind of violence that fractures our daily lives, but the kind of violence that constitutes them. systemic violence, according to žižek (2008), is that which constitutes our legal system, our medical system, our educational system, our social system, and which, as such, we understand to be normal.4 based on it, it is normal that two out of three intersex people in europe have undergone medical procedures to construct a body sexually adapted to the binary norm. it is similarly normal for intersex people to face serious obstacles in having their intersexuality registered and acknowledged by administrations, as the fra study indicates. let us return to sports to make this systemic violence visible. the brazilian athlete edinanci fernandes da silva, an intersex woman and judoka, had to undergo a clitiridectomy in order to continue competing (lins frança 2009). why should a person’s larger than normal clitoris have to be reduced in order for them to compete in sports? this is the kind of systemic violence that governs intersex people's bodies. it is based on a dividing line between the normal body and the pathological body. it follows that a body with xy chromosomes is a man's body; as such, it must have a penis and testicles that appear to be masculine in shape and size, and generate testosterone at masculine levels, as well as maintain affective sexual relations with a body with xx chromosomes, that is with a woman's body. in order to be thus, a woman’s body must in turn have ovaries and a vagina, and generate a certain maximum amount of testosterone considered to be in line with femininity, as well as maintain affective sexual relations with men. together these features constitute what could be called a narrative coherence of bodies (garcía lópez 4. in a similar vein, see barrère unzueta's concept of subordiscrimination in barrère unzueta and morondo taramundi (2011). intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 184 and winter pereira 2021). this narrative coherence of bodies imposes a coherent narrative between chromosomes, hormones, phenotype, genitalia, and gonads in the physiological sphere as if they were a uniform and universal whole. and this uniform and universal whole must, in turn, be coherent with a single narrative about gender identity and sexual orientation. interruptions of that narrative coherence are placed on the side of pathology. while historically intersex people were subjected to inquisitorial judicial processes that could result in a death sentence (garcía lópez 2015), it is during the nineteenth century that medical science picks up the baton from criminal law and the time of correction begins: homosexual and lesbian people are corrected because their sexual orientation is not consistent with the normative narrative; trans people are corrected because their identity is not consistent with the normative narrative; and intersex people are corrected because their bodily characteristics are not consistent with the normative narrative. i emphasise the locution normative narrative here because it refers to a construction about bodies that is presented as universal, neutral, objective, impartial, and yet is nothing more than a localglobalised ontology, a point of view that does not admit that it is a point of view. those who do not conform to the universal subject it creates must be disciplined and fixed. this is not a story exclusive to intersex people. the cartesian subject of modernity has been imposed as the subject, so those who do not conform to that subject have been left on the other side of the abyssal line (grosfoguel 2013). think of the declaration of the rights of the man and of the citizen of france in 1789, or the virginia declaration of rights of 1776 in what is now the united states. these two legal texts mark the time of rights and also the time of exclusions. women and the non-white population in particular have been the subjects placed outside the normative subject and, therefore, lacking the legal guarantees to make their lives sustainable and worth living. whereas women and the non-white population have gradually gained status as subjects and subjects of law, though not without brakes and limitations, law continues to reproduce its inclusion-exclusion logic: for some to be included, others must be excluded (esposito 2011; garcía lópez and winter pereira, 2020). in this logic, intersex people are today what women were in 1789. they remain subjectivities outside the subject and the subject of law. this is why the rights of intersex people become suspended at the doors of the operating room. when an intersex person, especially a child, has their body surgically corrected/fixed and adjusted to the norm, their rights to the free development of the personality, to privacy, or to physical and mental integrity remain outside the space of exception that is the operating room. within that room, that body is regarded as a case of disorder of sex development to which the medical protocol optimal gender of rearing is applied. when a baby is born with genital or sex ambiguity, the aim is to produce a normatively sexed body (in shape and size) within its first 18 months of life (to avoid generating memories), in a process that is considered a psychosocial emergency (garcía dauder et al. 2015). to this end, their ‘true’ sex is diagnosed based on what the intersex movement has ironically called the phallometer: on the measurements of the normative penis -minimum 2.5 cm (the normative clitoris being a maximum of 1 cm; see faustosterling 2000; gregori flor 2006), and it is fixed by means of irreversible surgical and hormonal treatments. nor is it only about surgery: in addition to physical interventions luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 185 there are daily explorations of the genitals, hormonal experimentation, photographs, etc., often implying, as highlighted in an interview conducted by amnesty international spain in 20205, isolating children from their family and tying them to their bed in the postoperative period. in addition to such medical violence,6 there is also registry violence. with some exceptions (e.g., germany), laws on civil registration normally establish that a person must be registered within a certain period of time (in spain, it is 72 hours under the 2011 civil registration act7) under one of the only two sexes available at the registry: male or female. the registration of a new-born’s sex relies on a medical report that is in turn based on genitalia and its correspondence in shape and size with what has been normatively constructed as male and female genitalia (greenberg 2012). a person’s civil registration is thus based on ius genitalis. the un has acknowledged the existence of cases of intersex genital mutilation and torture (carpenter 2022; carpenter 2018). in the report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (méndez 2013), the un recognised that this type of medical treatment, often non-consensual and sometimes based on flawed informed consent (feder 2014), represents a case of child torture consented to and legalised by the states (sandberg 2018), as shown in the fra report cited above. has this consideration of torture and genital mutilation by the un been taken further? in the following section i would like to focus on how intersex activism is managing to make systemic violence visible through its intervention in consultation processes before international bodies. 3. united nations on intersex people the legal strategies that intersex activism is pursuing globally involve engaging in national contexts through reporting, in order to expose systemic human rights violations, particularly in the form of genital mutilation. in this regard, i will focus on the work carried out in recent years by two associations: brújula intersexual and stop intersex genital mutilation. the first is a mexican association with a latin american outreach. it was created in 2013 and involves intersex people, families, and allies. as highlighted on its website, “the initial objective remains the same to this day: to make intersex experiences visible. as a result, one of our core activities is to distribute information in spanish on the right to bodily autonomy and integrity of intersex people”.8 the second is an association based in switzerland and founded in 2007 with the aim of “to represent the interests 5. a few years earlier, amnesty international published a relevant report entitled first, do not harm: ensuring the rights of children born intersex (2017). it is available at https://www.amnesty.org/en/latest/ campaigns/2017/05/intersex-rights/ [accessed: 22 november 2021]. 6. on the clinic and intersex people in the spanish context, see gregori flor 2015; fernández garrido 2021. 7. in 2022, a draft law is being negotiated in spain that recognises the right to free self-determination of the mention of sex in the civil registry. the united nations resolutions that i will focus on in this paper reinforce the need for a legislative framework such as the one being proposed. 8. https://brujulaintersexual.org/acerca-de/ [in spanish in the original] [accessed: 19 november 2021]. https://www.amnesty.org/en/latest/campaigns/2017/05/intersex-rights https://www.amnesty.org/en/latest/campaigns/2017/05/intersex-rights https://brujulaintersexual.org/acerca-de intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 186 of intersex people and their relatives, raise awareness, and fight igm [intersex genital mutilation] practices and other human rights violations perpetrated on intersex people”.9 both associations have been involved in five committees, which have produced a total of 49 reports: committee against torture (8 reports), committee on the right of the child (17 reports), committee on the rights of persons with disabilities (8 reports), committee on the elimination of discrimination against women (12 reports), and human rights committee (5 reports). these 49 reports have led to the united nations’ reprimanding the genital mutilation of intersex persons in the 49 cases in which they have intervened. year countries reprimanded 2011 germany 2015 switzerland (2)10, austria, denmark, hong kong, chile, germany 2016 france (3), ireland, united kingdom, nepal, new zealand, south africa, chile, italy, uruguay, switzerland, netherlands 2017 denmark, united kingdom, morocco, germany, ireland, switzerland, australia 2018 netherlands, spain, argentina, chile, luxembourg, mexico, australia, new zealand, liechtestein, nepal 2019 united kingdom, belgium (2), italy, malta, portugal, australia (2), india, mexico 2020 austria, portugal prepared by the author according to the data, the following countries have been reprimanded by the un for intersex genital mutilation a number of times that is indicated in brackets: switzerland (4), france (3), germany (3), united kingdom (3), ireland (2), denmark (2), netherlands (2), italy (2), belgium (2), austria (2), portugal (2), spain (1), luxembourg (1), liechtenstein (1) and malta (1) in europe; chile (3), mexico (2), uruguay (1) and argentina (1) in latin america; nepal (2), hong kong (1) and india (1) in asia; south africa (1) and morocco (1) in africa; and australia (4) and new zealand (2) in oceania. this makes a total of 26 states, mostly european, and 50 reprimands. as per committee, the number of reprimands issued by the un stand as follows: committee on the rights of the child 17; committee on the elimination of discrimination against women 12; committee against torture 8; committee on the rights of persons with disabilities 8; human rights committee 5. i will henceforth focus on some of the cases handled by these committees. 3.1. committee on the rights of the child of all committees under consideration, the committee on the rights of the child (crc) has undoubtedly been most active on intersex people. this might be related to the fact that intersex activism focuses mostly on the protection of the physical and mental integrity of children, as most vulnerable subjects and most often subjected to practices that violate human rights -most atrociously. 9. https://stopigm.org/about-us/about-the-ngo/ [accessed: 19 november 2021]. 10. this number indicates the number of un interventions in that country in that year. https://stopigm.org/about-us/about-the-ngo luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 187 the crc monitors the implementation of the 1989 convention on the rights of the child. the states parties must submit periodic reports on the implementation and development of the convention: they must issue an initial report two years after joining the convention and a follow-up report every five years. the crc studies the reports, calling on the states’ own governmental bodies, and makes concluding observations. in the case at hand, i.e. violations of the rights of intersex children, the crc bases its observations on article 24.3 of the convention on the rights of the child, according to which “states parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children” in relation to general comment 18 on non-discrimination. the countries analysed by the crc since 2015 in relation to intersex children have been switzerland, chile, france, ireland, united kingdom, nepal, new zealand, south africa, denmark, spain, argentina, belgium, italy, malta, portugal, australia, and austria. the first two interventions took place in 2015. the crc studied the situation of intersex children in switzerland and chile. in the concluding observations on the swiss case, published on 26 february 2015, the crc dedicates paragraphs 42 and 43 to intersex persons: “[w]hile welcoming the adoption of a new provision of criminal law prohibiting genital mutilation, the committee is deeply concerned at: a) the significant number of girls living in the state party who are affected or threatened by genital mutilation; (b) cases of medically unnecessary surgical and other procedures on intersex children, without their informed consent, which often entail irreversible consequences and can cause severe physical and psychological suffering, and the lack of redress and compensation in such cases” (crc/c/che/co/2-4 2015: 9). for case b, concerning intersex children, crc urged switzerland, “in line with the recommendations of the national advisory commission on biomedical ethics on ethical issues relating to intersexuality, [to] ensure that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guarantee bodily integrity, autonomy and selfdetermination to the children concerned, and provide families with intersex children with adequate counselling and support” (crc/c/che/co/2-4 2015: 9). in this report, the crc placed at the same level, for the first time, the genital mutilation suffered by girls and intersex genital mutilation, and declared them both to be cosmetic, non-consensual, medically unnecessary, and irreversible. to lead to this pronouncement, stop intersex genital mutilation submitted a report describing the non-consensual and medically unnecessary treatments (clitoroplasty, clithridectomy, vaginoplasty, gonadectomy, etc.), as well as their connection with the problems encountered at the civil registry, and the violations of international law that these intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 188 practices entailed: “[t]he surgeries and other harmful treatments intersex people endure in switzerland cause severe physical and mental pain. doctors perform the surgery for the discriminatory purpose of making a child fit into societal and cultural norms and beliefs, although there is plenty of evidence on the suffering this causes”.11 the swiss state was held responsible for these serious human rights violations. switzerland is not an isolated case. far from it, we can find strong similarities on this issue with other countries, both in the reports submitted by intersex activists and the concluding observations by the crc. spain, for example, was reprimanded in 2018. the report follows the same structure: what are cases of intersexuality; what practices are carried out in these cases, based on those that are documented; what rights are violated by these practices; what obstacles do intersex people encounter in denouncing these violations; conclusions; and recommendations. the conclusions state: “[t]hus spain is in breach of its obligation to ‘take effective legislative, administrative, judicial or other measures’ to prevent harmful practices (art. 24 para. 3 in conjunction with crc/cedaw joint general comment no. 18/31 on harmful practices), as well as of its obligations under articles 2, 3, 6, 8, 12, 16, 19, 23, 24.1, 34, 36, and 37 of the convention on the rights of the child. also in spain, victims of igm practices encounter severe obstacles in the pursuit of their right to access to redress and justice, including fair and adequate compensation, and the means for as full rehabilitation as possible. further the state party’s efforts on education and information regarding the human rights aspects of igm practices in the training and education of medical personnel are grossly insufficient with respect to the treatment of intersex people”12. these human rights violations are given flesh and blood in the report. the first case reported concerns a girl born in 2001, who at 17 months of age underwent surgery for clitoral reduction, vaginoplasty, and labiaplasty. seven months later, labiaplasty was performed again. from the age of two until the age of 12 the girl underwent periodic vaginal dilations with dildos/dilators of different sizes so that her vagina could be large enough to be penetrated in the future. the medications she was given, especially hydrocortisone, affected her health, causing cushing syndrome, which led to overweight. today, that surgically constructed girl identifies herself as a boy and stopped following the prescribed treatment at the age of 12. their childhood was spent amidst hospitals, cures, relapses, and infections. the recommendations presented in the intersex activists' report focus on the need to address the following points: prohibition of harmful practices against intersex people, i.e. unnecessary and non-consensual medical treatment, to guarantee the bodily integrity, autonomy and self-determination of children and their families; introduction 11. the report presented by the activists in https://intersex.shadowreport.org/public/2014-crc-swiss-ngozwischengeschlecht-intersex-igm_v2.pdf [accessed: 18 november 2021]. the quote on page 26. 12. the report presented by the activists in https://intersex.shadowreport.org/public/2017-crc-spain-ngobrujula-zwischengeschlecht-intersex-igm.pdf [accessed: 18 november 2021]. the quote on page 15. https://intersex.shadowreport.org/public/2014-crc-swiss-ngo-zwischengeschlecht-intersex-igm_v2.pdf https://intersex.shadowreport.org/public/2014-crc-swiss-ngo-zwischengeschlecht-intersex-igm_v2.pdf https://intersex.shadowreport.org/public/2017-crc-spain-ngo-brujula-zwischengeschlecht-intersex-igm.pdf https://intersex.shadowreport.org/public/2017-crc-spain-ngo-brujula-zwischengeschlecht-intersex-igm.pdf luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 189 of legal measures to realise the principle of truth, justice, and reparation; and education and training on intersexuality for medical, psychological, and educational professionals. the crc concluded that hospitals in madrid, barcelona and malaga continue to perform genital mutilations on intersex children. hence “the committee recommends that the state party prohibit unnecessary medical or surgical treatment from being performed on intersex children, when those procedures entail a risk of harm and can be safely deferred until the child can actively participate in decision-making. it also recommends that the state party ensure that intersex children and their families receive adequate counselling and support” (crc/c/esp/co/5-6 2018: 7). 3.2. committee on the elimination of discrimination against women the committee on the elimination of discrimination against women (cedaw) is responsible for monitoring the implementation of the 1979 convention on the elimination of all forms of discrimination against women. as with the crc, states parties are required to submit periodic reports to which the cedaw will respond with concluding observations. cedaw has pronounced itself about intersex women on the basis of article 5 of its convention13 in relation to general recommendation 31, which is also closely related to general recommendation 18. the countries analysed by cedaw with regard to the rights of intersex women were: france, switzerland, netherlands, germany, ireland, chile, luxembourg, mexico, australia, new zealand, nepal, and liechtenstein. the cedaw first commented on the situation of intersex women in july 2016 in relation to france. in paragraph 17, the cedaw states how stereotypes reoccur in harmful practices. specifically, it states: “[t]he committee welcomes the state party’s efforts to combat discriminatory gender stereotypes, including by promoting the sharing of household duties and parenting responsibilities, and to address the stereotyped portrayal of women in the media, including by regulating broadcasting licences and strengthening the role of the audiovisual superior council. the committee further welcomes legislative and other measures taken to combat harmful practices, including child and forced marriage, female genital mutilation and crimes in the name of so-called honour. however, the committee is concerned that: […] f) medically unnecessary and irreversible surgery and other treatment is routinely performed on intersex children, as noted by the committee on the rights of the child and by the committee against torture” (cedaw/c/fra/co/7-8 2016: 5-6). 13. article 5: “states parties shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”. intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 190 it is undoubtedly an important step for cedaw to recognise that intersex women, especially girls, have their rights systematically violated due to their specific bodily features. therefore, it recommends: “[d]evelop and implement a rights-based health-care protocol for intersex children, ensuring that children and their parents are appropriately informed of all options; children are involved, to the greatest extent possible, in decision-making about medical interventions and their choices are respected; and no child is subjected to unnecessary surgery or treatment, as recommended recently by the committee against torture and the committee on the rights of the child” (cedaw/c/fra/co/7-8 2016: 6-7). the mexican case, decided in july 2018, is similar. in response to the activists' report14, the cedaw includes intersexuality in the section on the legislative framework and discrimination against women, as an intersectional factor that is at the root of systemic violence: “[t]he lack of effective mechanisms and the insufficient state-level budgetary allocations to implement and monitor the laws relating to gender equality and women’s right to a life free of violence have failed to eliminate discrimination, notably intersecting forms of discrimination, in particular against indigenous women, mexican women of african descent, migrant women, women with disabilities, lesbian, bisexual and transgender women and intersex persons” (cedaw/c/mex/co/9 2018: 4). this requires the adoption of a roadmap at all levels of government (federal, state, and local) to implement laws for the prevention and elimination of all de facto discrimination against women, with special emphasis on intersex women. likewise, cedaw is concerned about unnecessary medical treatment of intersex girls. therefore, it recommends that “[i]n the light of joint general recommendation no. 31 of the committee on the elimination of discrimination against women/general comment no. 18 of the committee of the rights of the child (2014) on harmful practices, the committee recommends that the state party adopt provisions explicitly prohibiting the performance of unnecessary surgical or other medical procedures on intersex children until they reach an age when they can give their free, prior and informed consent and provide families of intersex children with adequate counselling and support” (cedaw/c/mex/co/9 2018: 7). 3.3. committee against torture the committee against torture (cat) is concerned with the analysis of how states implement the 1984 convention against torture and other cruel, inhuman or degrading treatment or punishment. states parties are required to submit periodic reports every four years, plus the initial report one year after accession. 14. it can be consulted at https://intersex.shadowreport.org/public/2018-cedaw-mexico-ngo-intersexbrujula-stopigm.pdf [accessed: 18 november 2021]. https://intersex.shadowreport.org/public/2018-cedaw-mexico-ngo-intersex-brujula-stopigm.pdf https://intersex.shadowreport.org/public/2018-cedaw-mexico-ngo-intersex-brujula-stopigm.pdf luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 191 the cat has analysed cases of torture of intersex persons on the basis of articles 2, 12, 14, and 16 of the convention.15 it has so far studied the cases of germany, switzerland, austria, denmark, hong kong, france, netherlands and united kingdom. in 2011 it issued its first pronouncement on the matter, indeed the first pronouncement ever issued by the un on intersex people, in a resolution on germany. based on a report submitted by intersex activists,16 the cat concluded, in a section devoted exclusively to intersex people, that there were cases of genital mutilation leading to forced sterilisation. such surgeries, it noted, are not justified on health grounds, but for purely cosmetic reasons and without the informed consent of the persons involved or their legal guardians. furthermore, the cat expressed concern about the absence of a legislative framework guaranteeing the integrity of people regardless of their sexual orientation and providing redress in the form of compensation. therefore, it urged germany to “ensure the effective application of legal and medical standards following the best practices of granting informed consent to medical and surgical treatment of intersex people, including full information, orally and in writing, on the suggested treatment, its justification and alternatives; (b) undertake investigation of incidents of surgical and other medical treatment of intersex people without effective consent and adopt legal provisions in order to provide redress to the victims of such treatment, including adequate compensation; (c) educate and train medical and psychological professionals on the range of sexual, and related biological and physical, diversity; and (d) properly inform patients and their parents of the consequences of unnecessary surgical and other medical interventions for intersex people” (cat/c/deu/co/5 2011: 7). eight years later, in the united kingdom (uk) case cat/c/gbr/co/6, cat insists on the lack of a legislative framework to guarantee the lives of intersex people, as well as redress for those who have suffered genital mutilation and other unnecessary medical treatment. therefore, it recommends the uk to ensure that 15. article 2: “1. each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” article 12: “each state party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” article 14: “1. each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. in the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.” article 16: “1. each state party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article i, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. in particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.” 16. it can be consulted at https://intersex.shadowreport.org/public/association_of_intersexed_peopleshadow_report_cat_2011.pdf [accessed: 20 november 2021]. https://intersex.shadowreport.org/public/association_of_intersexed_people-shadow_report_cat_2011.pdf https://intersex.shadowreport.org/public/association_of_intersexed_people-shadow_report_cat_2011.pdf intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 192 “[t]he parents or guardians of intersex children receive impartial counselling services and psychological and social support, including information on the possibility of deferring any decision on unnecessary treatment until they can be carried out with the full, free and informed consent of the person concerned; (b) persons who have been subjected to such procedures without their consent and resulting in severe pain and suffering obtain redress, including the means for rehabilitation” (cat/c/gbr/co/6 2019: 14). 3.4. committee on the rights of persons with disabilities the committee on the rights of persons with disabilities (crpd) focuses on the 2006 convention on the rights of persons with disabilities. states parties to this convention are required to submit a comprehensive report on the measures taken to comply with it within two years after accession. with regard to intersex persons, the crpd applies articles 16 and 17 of the convention17 relating to exploitation, abuse, and violence, as well as integrity of the person. the states reprimanded have been chile, germany, italy, uruguay, united kingdom, morocco, india, and australia. the resolutions issued by this committee raise the need to protect the integrity of intersex persons, as “children are subjected to irreversible surgery for intersex variation and other medical treatments without their free and informed consent” (crpd/c/ita/co/1 2016: 5). the crpd recommends that states parties ensure that no one is subjected to non-consensual medical or surgical treatment during infancy or childhood, thus guaranteeing the bodily integrity, autonomy and selfdetermination of children, by providing their families with appropriate counselling and support (crpd/c/ita/co/1 2016: 6). in other cases, concerning for example chile, the 17. article 16: “1. states parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 2. states parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of genderand age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. states parties shall ensure that protection services are age-, genderand disability-sensitive. 3. in order to prevent the occurrence of all forms of exploitation, violence and abuse, states parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. 4. states parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account genderand age-specific needs. 5. states parties shall put in place effective legislation and policies, including women and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.” article 17: “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.” luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 193 crpd also proposes preventing forced sterilisations (crpd/c/chl/co/1 2016: 6), or, in the case of morocco, the prohibition and criminalisation of non-consensual medical treatment of intersex persons (crpd/c/mar/co/1 2017: 7). moreover, in its october 2019 report, concerning india, the crpd denounces the 'mercy killings' of intersex children with disabilities: “[t]he committee is concerned about the deaths of children with disabilities in institutions, and information about ‘mercy killings’ of intersex children with disabilities” (crpd/c/ind/co/1 2019: 6). it also raises concerns about the non-registration of underaged intersex persons, thus increasing the risk of neglect (crpd/c/ind/co/1 2019: 10). 3.5. human rights committee the human rights committee (hrc) monitors the implementation of the 1966 international covenant on civil and political rights. states parties are required to submit an initial report within one year of their joining the covenant and then further reports whenever the hrc requests them, which normally happens every four years. the hrc's observations on the situation of the rights of intersex people were based on articles 2, 3, 7, 24 and 26 of the covenant18 concerning cruel, inhuman and degrading treatment, harmful practices and non-consensual medical or scientific experimentation. the countries studied were switzerland, australia, belgium, mexico, and portugal. 18. article 2: “1. each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. where not already provided for by existing legislative or other measures, each state party to the present covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present covenant. 3. each state party to the present covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy; (c) to ensure that the competent authorities shall enforce such remedies when granted.” article 3: “the states parties to the present covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present covenant.” article 7: “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. in particular, no one shall be subjected without his free consent to medical or scientific experimentation.” article 24: “1. every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state. 2. every child shall be registered immediately after birth and shall have a name. 3. every child has the right to acquire a nationality.” article 26: “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” intersex legal activism. united nations on the human rights of intersex people the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 194 this is the committee that has developed the fewest resolutions on intersex people since 2017, when it published the first one. the 2020 report on portugal stands out here. despite the fact that portugal legally guarantees the rights of lgtbi people since 2018 (law 38/2018 of 7 august), the hrc notes that “children born with intersex traits are sometimes subjected to invasive and irreversible medical procedures aimed at assigning them with a sex, that such actions are often based on a stereotyped vision of gender roles and that they are carried out before the persons in question are of an age to give their free and informed consent” (ccpr/c/prt/co/5 2020: 4). 4. conclusions the 49 committee resolutions under analysis, of which only a small sample has been highlighted here, all point to the need for legal frameworks that guarantee the lives and integrity of intersex people, especially children. the vast majority of committee reports are strongly critical of serious violations of the lives of intersex people, denouncing medical practices and administrative limitations that directly violate human rights. these reports, however, fail to address the need to eradicate a binary system, as the source for the perceived need to pigeonholes intersex people into bodily normativity, into a narrative of body coherence. silence on this issue seems surprising. it might be that the reports did not appear to be the right space to include such a critique. notwithstanding this silence, the pronouncements of the committees, although merely aesthetic and without practical consequence for the states parties, do represent an interesting legal strategy. in this regard, in october 2021 austria, on behalf of 53 states, requested the un human rights council to urgently protect intersex people in their autonomy and right to health. they called for a ban on non-consensual medical practices, as well as on violence and discrimination based on sex characteristics. the list of signatory states includes many of those that have been reprimanded by the united nations.19 among them we find, for example, the spanish state, currently immersed in the attempt to approve a legislative framework for lgtbi+ people, which ironically pays scant attention to the rights of intersex people. to conclude this paper, i would just like to consider to what extent the resolutions of the united nations committees analysed here and the work carried out by intersex activists can be framed as soft law. by this i understand law that is not constructed vertically or hierarchically, but rather through horizontal, participatory, consensual and deliberative creation (mercado pacheco 2012). in this soft law framework, intersex activists become constituent agents that question the strict formulas of regulation (rubio castro 2014). these resolutions of the un committees on intersex people could even be understood as guides to the interpretation and application of hard law. they could be understood, in short, as a legislative technique that is apt to address such complex realities as those conveyed by the systemic violence of sexual binarism. 19. the news is available on the austrian government's website: https://www.bmeia.gv.at/oev-genf/speeches/ alle/2021/10/united-nations-human-rights-council-48th-session-joint-statement-on-the-human-rights-ofintersex-persons/ [accessed: 23 november 2021]. https://www.bmeia.gv.at/oev-genf/speeches/alle/2021/10/united-nations-human-rights-council-48th-session-joint-statement-on-the-human-rights-of-intersex-persons https://www.bmeia.gv.at/oev-genf/speeches/alle/2021/10/united-nations-human-rights-council-48th-session-joint-statement-on-the-human-rights-of-intersex-persons https://www.bmeia.gv.at/oev-genf/speeches/alle/2021/10/united-nations-human-rights-council-48th-session-joint-statement-on-the-human-rights-of-intersex-persons luísa winter pereira the age of human rights journal, 18 (june 2022) pp. 181-197 issn: 2340-9592 doi: 10.17561/tahrj.v18.7047 195 references amnesty international (2017). first, do not harm. ensuring the rights of children born intersex. available at: https://www.amnesty.org/en/latest/campaigns/2017/05/ intersex-rights/. 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https://doi.org/10.4159/9780674242647 https://doi.org/10.1353/ff.2018.0017 https://doi.org/10.1016/j.sxmr.2017.09.004 https://doi.org/10.1038/s41559-018-0567-6 https://doi.org/10.1017/9781780687704.029 https://doi.org/10.1017/9781780687704.029 intersex legal activism. united nations on the human rights of intersex people* abstract 1. introduction 2. systemic violence against intersex people 3. united nations on intersex people 3.1. committee on the rights of the child 3.2. committee on the elimination of discrimination against women 3.3. committee against torture 3.4. committee on the rights of persons with disabilities 3.5. human rights committee 4. conclusions references poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 1 poverty as a matter of justice silvina ribotta1 abstract: poverty is the outcome of the unequal distribution of resources reinforced by a legal, political, economic, and cultural model and is the central expression of social injustice. the impact of economic inequality on humanity’s quality of life can be better explained from the perspective of basic needs and their ties with rights, the unequal opportunities and their connection with the degree of autonomy that situated individuals effectively enjoy, and the effectiveness of public policy and the responsibilities and duties of the governments. this article discusses the close (and not visible) ties between justice, law, and poverty, emphasizing that the current legal framework -even the human rights systemlegitimizes an unequal status quo that prevents real access to and enjoyment of rights and freedoms for people living in poverty conditions. moreover, it also endangers democratic stability. keywords: poverty, economics inequalities, social injustice, basic needs, equality of opportunity, autonomy, democracy. summary: 1. we must talk about poverty (because the topic is avoided). 2. poverty and injustice (because poverty involves social injustice). 3. poverty, unequal opportunities, autonomy, and rights (because we are not free if we are poor). 4. law and social justice (because law legitimizes social injustice). 1. we must talk about poverty (because the topic is avoided) we must talk about poverty, mainly because too many avoid the topic. poverty is discussed euphemistically, not to mention hunger, deprivation, despair, unemployment, exclusion, or death and disease due to poverty. these are day-to-day realities for millions of human beings worldwide. still, the global community, the united nations, international organizations and regional supranational organizations, governments, domestic legal frameworks, human rights protection systems (both at regional and international level), and even scholars and academia turn a blind eye. discussing about poverty diminishes scholarly discourses and narratives, and simplistically and maliciously, some ideologically tie those to anti-democracy and anti-establishment approaches. far from that, discussing about poverty is essential for the law, the stability of democratic governments, and quality of life of humanity and the earth’s overall balance. poverty must be a central subject for politics, economics, sociology, ecology and environmental sciences, history and social sciences and, obviously, for legal studies. 1 silvina ribotta, associate professor (profesora titular) of philosophy of law, political philosophy and human rights, carlos iii de madrid university-spain (silvina.ribotta@uc3m.es). orcid number: 0000-0002-7698-6596. this article has been finalized during the stay as visiting professor at università degli studi di brescia-italia (april-june 2022). is published as part of the project der2016-76078-p “condicionantes sociales de la salud y justicia: los desafíos del derecho a la salud”, programa estatal de investigación científica y técnica de excelencia del ministerio de economía, industria y competitividad. http://10.17561/tahrj.v20.7327 mailto:silvina.ribotta@uc3m.es poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 2 however, ironically (or perhaps with political intention), poverty has lost some momentum as a relevant topic and has been made invisible in political, social, and economic debates as well as in legal discourses. apparently, it is not rigorous or relevant to talk about or make a research about law and poverty, access to justice for poor persons, criminalization of poverty, unfair distribution of wealth in the world, poor migrants, intersectionalities between poverty and gender, poverty and disability, poverty and indigenous populations, poverty and lgtbq+ individuals, poverty and childhood, poverty and racism, among many other aggravating situations of discrimination and vulnerability2. even more, poverty has been totally neglected, as if there was nothing to do about it other than assuming it is a natural outcome of resource scarcity, the only possible result from the only possible economic and political model. thus, poverty can only be confronted by trying to mitigate some of its effects. in 2000, the first of the united nations millennium development goals was to eradicate extreme poverty and hunger. in 2015, the united nations adopted the 2030 agenda for sustainable development to renew the unfulfilled commitment to end poverty in all its forms throughout the world, now for the period 20152030 (un 2015). and, although the agenda provides meaningful commitments, such as taking urgent action to combat climate change and its impacts or promoting peaceful and sustainable societies, the need to reduce inequality within and among countries is situated in goal 10. self-evidently, this does not convey the extreme need and urgency attached to poverty nowadays, disregarding the millions of underprivileged human beings suffering bad living conditions and dying due to poverty all around the world. moreover, those actions do not demand properly (and not mention) structural changes that required the genuine goal of eliminating extreme poverty (alegre 2007: 242-244). indeed, if we look the world in the face observing the various social and political realities, we will notice that we have structured and consolidated models of state and law that are functional to a model of exclusion and systems of hierarchies of rights distanced from the real needs of human beings. however, poverty-related matters as what poverty involves, its causes, how its ties with the way we have arranged access to resources, how it allows or prevents to enjoy individual freedoms, the enforcement of rights or life itself, and its connection with democracies and their stability remain side issues for research, debate and policymaking as legitimate justice claims. obviously, major human rights organizations, academia, politics, economics, sociology and legal scholars must overcome the reluctance to discuss and research povertyrelated topics, and acknowledge the economic aspects of rights, since economic inequality and poverty are not only economic issues. in fact, they are mainly issues to rights and human rights (alston 2015: 1). we can no continuous disregard the close ties between human rights, poverty and inequality, acting as if resources, redistribution and promoting human rights were unrelated. moreover, particularly not now, because this world pandemic has taught us that illness, life and death have a lot to do with our place in the social structure (garret 2020 [1995]; wade 2020). no one develops its abilities regardless of its 2 see my approach to poverty and intersectionalities because of covid pandemic in ribotta 2021a. http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 3 position in society’s class structure, the sex-gender structure, ethnic structures, capabilitybased structures and, generally, the social, political, cultural and economic structures of this unfair world. indeed, every advantage and every disadvantages are severely impacted by our place in social stratification. social structures deal the cards, providing different life opportunities and enabling or preventing the exercise of rights and freedoms, the enjoyment of life and quality of living, even illness and death (ribotta 2021b). departing from this premise, i will discuss the close ties between justice, law and poverty, particularly assuming that poverty is the result of a specific (and unequal) resource distribution reinforced by a legal, political, economic and cultural model. these ties could be examined from various approaches. i will discuss them by advocating a very specific concept of poverty with regard to economic inequality, emphasizing that the current legal framework, compatible with human rights, barely relies on basic needs to justify or support the various rights and entitlements or at least understanding those as good reasons for the justification of rights. thereby, legitimizing an inequality-based status quo completely detached from basic needs, thus preventing real access to, and enjoyment of, rights and freedoms, reproducing the structural conditions of poverty that make it impossible for people to be genuinely autonomous. relying on these insights, i will argue that extreme poverty is a major expression of social injustice, empirically linked to economic inequality and which the law fulfills legitimizing and reproducing roles of that injustice. non-fulfillment of basic needs of the underprivileged within contexts of major economic inequality does not only show utmost unfairness, but also the potential to shorten that gap by implementing redistribution approaches aimed at achieving social justice. 2. poverty and injustice (because poverty involves social injustice) when we say someone is poor or discuss situations of poverty, we are generally referring to deprivations, i.e., to the scarcity of necessary resources and commodities and to the subsequent impact of such scarcity on the lives of people in need. however, the analysis of this impact on people’s lives, a deep understanding of poverty and its causes, and how to tackle it, are directly dependent on our conceptual and ideological framework. for instance, poverty is usually connected with food shortages, but it is not often tied to the lack of freedom or autonomy. among the various approaches to the notion of poverty, it is worth noting the concept of multidimensional poverty or the global multidimensional poverty index (mpi) embraced in 2010 by the united nations development program (undp), which replaced the human poverty index (hpi). the mpi considers poverty as a multidimensional phenomenon connected with health, education and quality of life3, with the aim of providing more accurate poverty measurements and a better assessment of the human development index (hdi), the inequality-adjusted human development index (i-hdi) and the gender development index (g-hdi). 3 the report explains the new developments and innovations in poverty and inequality measurement, focusing on the ihdi, the gdi and the mpi (undp 2010: 85-101). technical note 4 explains the calculation of the mpi (undp 2010: 215 and 221-222). http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 4 some of these efforts in defining and accurately measuring and assessing poverty stem from sen’s works. he views poverty as the deprivation of basic intrinsically important capabilities-functionings, in contrast with income that defined as only instrumentally important. so, he shifting the focus from the means, commodities and resources to the capabilities or ends that individuals have reason to pursue and, therefore, to the freedoms necessary to enable them to satisfy these ends (sen 1973: 229; sen 1992: 54-67; sen 1999: 99 ff. and 351 ff.; nussbaum & sen 1993: 56-64)4. consequently, sen warns that poverty should be construed as the deprivation of capabilities as functionings leading to the non-fulfillment of a minimum standard of living, due to deprivations, lack of income and other factors related to the cultural, family, social and personal context (sen, 1973: 224 and 241; sen 1992: 124-127; sen, 1999: 114 ff.; nussbaum & sen 1993: 68). the lack of income is essential in the deprivation of capabilities and paves the way for an impoverished life. nevertheless, many other factors better account for the deprivation of capabilities and show more clearly the situations of poverty. still, the lack of rent and income is merely circumstantial and conditional. therefore, deprivations will depend on other related aspects, such as personal heterogeneity and social conditions, resource distribution within families, environment-related diversity, weather conditions, epidemiological factors, geography, social environment, historical, cultural, and political contexts, or the differences in culturally biased relationship perspectives5. poverty is not a matter of little well-being but of the inability to achieve such well-being precisely because of the lack of resources. these resources play a relevant role but do not have a decisive role because having enough economic resources cannot be assessed, disregarding the real possibilities of turning such resources into capabilities. income only tells part of the story, while the whole story will depend on the person’s ability to function, relying on such income or resources. thus, assessing how people can transform their available resources into capabilities and functionings matters. it will not be an easy process: personal and social conditions, age or capabilities-disabilities, health status or illness, among other factors, can make people more difficult or reduce their ability to obtain resources. also, converting income into capabilities will become more complex because of the parametric variations due to personal characteristics and circumstances. in sum, the point is not if the earnings are reduced -in terms of quantity-, but whether they suffice to be converted into acceptable capabilities. accordingly, individual capacity mainly expresses one’s freedom to achieve valuable capabilities. therefore, capacity is primarily a reflection of the freedom to acquire valuable functionings by identifying the actual alternatives that are offered to people. that is, capacity represents a person's freedom to achieve their well-being. for this reason, the freedom of choice is directly 4 a rich person that voluntarily chooses to fast or to take a vow of poverty can be undernourished, just like a person with no resources. however, although the outcome may be the same, the rich person’s capability set is very different from that of the poor person when the first freely decide not to eat. fasting involves choice and freedom. 5 sen makes differences between a person’s well-being, the characteristics of commodities, personal functionings and capabilities, and the resources needed by persons to achieve such functionings. all of these are different but interconnected concepts that, overall, embody the human functionings-capabilities to attain freedoms (sen 1985: 9-10 and 25-26). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 5 important for the quality of life and for the well-being of a person; obtaining well-being is not independent of the process through which people achieve various functions and of the role that their decisions play in those choices. the capabilities approach thus allows assessing the performed functionings as those that a person is able to conduct, or the set of capabilities available to such person as real opportunities. the first assessment will give us information on what a person does and the second will reveal what a person has the fundamental freedom to do. in this connection, sen argues that the human capability approach mostly focuses on the fundamental freedom of individuals to live the life they have reason to value and to increase the real options among which they can choose. thus, a person, considering his or her individuality, and the individual, family and social context, has capabilities to do or be what he or she has reasons to value. there can be direct reasons for action if the involved functioning can improve someone’s life or clearly impact on his or her welfare (being well nourished or healthy) or indirect reasons, where the involved functioning can increase benefits, better one’s social position, or affect production or the market (sen 1992: 75 and 81-83)6. therefore, i assume that poverty is always a state in which people or groups or states find themselves, as a temporary condition and not as a permanent state, making a relevant difference between poor persons and persons who are living in a poverty condition7. when we assume that persons are poor or that individual x is poor, we construe poverty as a feature of one’s identity, attaching it to notions such as responsibility, being deserving of something, or blame for poverty. thus, we interpret poverty as a feature that is there to stay, with a vocation for permanence. indeed, we connect poverty with particular features or traits that identify people as poor, thereby tying poverty to specific behaviors, cultural patterns, organizational and personal habits, or family structures. it is worth noting that we tend to explain poverty because of actions or omissions by individuals, groups, or even countries/states, inferring that they are being poor as a direct result of the exercise of their freedom because of their will and actions. thus, making invisible the structural and contextual conditions in which these people live, and these aspects become directly attached to the poor and poverty and negatively impact poverty public policy. reinforcing this idea, we usually associate poverty with resource scarcity, and thus with the inability to change the advantaged-disadvantaged scale or share, which has even been explained by major theories of justice like rawls’s theory8. 6 sen examines how the complexity of the concept of freedom affects the functionings-capabilities approach. noting that, when we weigh social and economic inequality in the world−in terms of being able to prevent illnesses, hunger or early mortality (being free from illness and being free from hunger), we are examining differences in well-being, but also any fundamental freedoms enabled or prevented by these situations. thus, there is a difference between being free from hunger and the remaining freedoms arising from not being hungry. the relevant part of assessing the notion of being free from hunger is to determine if there is a dimension of freedom related to hunger, other than the freedoms arising from being free from hunger. this approach draws major criticism. for instance, cohen argues that sen puts forward an ambiguous notion of freedom, because he thinks that being free from hunger is not, by itself, an exercise of freedom (cohen 1993: 47 ff.). 7 in spanish language is more understandable the difference between estar and ser, the difference between ser pobre and estar pobre, because a different word is used. 8 on the criticism of justice theories, especially of egalitarian theories of justice by john rawls, ronald dworkin and amartya sen, see barry 1973; blocker and smith 1982; daniels 1975; gargarella 2009; ribotta 2010. http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 6 nonetheless, if we assume that poor persons are because of a circumstantial condition of their present existence we change the frame of analysis. our consideration changes, shifting the focus of study from the person to the socioeconomic context within which the individual lives in poverty, assessing poverty as a temporary state of being, which is therefore modifiable. we do not only make a change of word but of concept, through which poverty would be construed as a condition in which people live situated in specific social, political, economic, cultural, and historical conditions, and where individual responsibility plays any role but does not fully explain the state of poverty faced by the individual. poverty should be no longer considered only as the outcome of freedoms by poor people. rather, they should consider the result of specific deprivations and struggles suffered by those people and their strategies for survival tied to the available resources, valuing poverty as a state, a condition, which can change and be modified. so, being responsible or being deserving definitely have to be examined in light of the underprivileged lives of persons due to the decisions they have made, but they do not only depend on those decisions. in fact, these conditions have a lot to do with the socioeconomic context and the general circumstances surrounding a person’s life. these conditions cannot be directly explained by human agency. conversely, they are more closely related to social and political responsibility and duties of accountability and government’s responsibilities9. as pointed out by nino, individuals are not truly autonomous if they lack sufficient resources to fulfill their needs and exercise their freedoms, at least in two moments. when choosing one’s own life plan, including the freedom to select and create such a plan, and when realizing those life plans, since it would make no sense to choose life plans that cannot materialize or materialize life plans that have not been freely chosen (nino 1990: 24). this clash between choice/ definition and realization revolves around the availability of resources or lack thereof in quantity and quality to carry out our plans of life, considering that resources are finite. therefore, nino warns that the scarcity of resources does not only limit the ability to define or choose life plans, but can also undermine or enable the realization of the plan. additionally, the impact of resource scarcity is not always the same, because one could have little or abundant resources at his or her disposal when sketching the life plan whilst lacking these resources when it comes to developing it. as a result, the dimensions of autonomy and choosing/defining and realizing life plans are based on material conditions and resource availability. moreover, the most unsuitable condition for the full enjoyment of personal autonomy is poverty, regarding both the choice and implementation of life plans, since poverty always entails deprivation and limits in liberties. accordingly, poverty cannot be considered the result of individual decisionmaking, a natural condemn or fate. rather, poverty stems from a structural and contextual socioeconomic situation that affect individuals that can thus be modified or reversed. 9 see wenar for a meaningful analysis on responsibility and poverty, roles and the types of responsibility (wenar 2007). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 7 something can be done, socially and politically, or could be required, in order to change the situation (in terms of teleological egalitarianism10). to change the rules that are leading to poverty and that are linked with the material conditions of individuals’ social origins. such conditions have a decisive influence on autonomy, at all levels, they are closely tied to the various dimensions of equal opportunity, and those considered natural talents and desert. this line of reasoning entails taking a theoretical-conceptual approach to poverty as well as an ideological stance regarding the causes, implications, the possible ways of overcoming or solution and the kind of policies implemented to mitigate or tackle poverty. people are poor, rather they are living in poor situations as a social condition outside their will and choice or, in any case, the direct responsibility of poor people, as a concrete intention or will to find themselves in the situation of poverty or, in terms of sen, as an exercise of their freedom. better said, persons/societies/countries can be impoverished because of a social condition that is beyond of them will or choice and beyond their direct responsibility. admittedly, poverty and scarcity are related to the finite amount of natural and material resources required for the fulfillment of personal and social needs. obviously, there are resources that qualify as essential for life but remain scarce, since all resources are, by definition, scarce within the limits and sustainability of our planet. however, this is not involve that scarcity justifies an economic and political dominance model rooted in an unequal way of producing and distributing world resources. one thing, therefore, is to affirm that the world's resources are scarce and that poverty explains why they are scarce in terms of availability in some part of the world or for some person or group of persons, and quite another to understand that there is poverty in the world because resources are scarce. scarcity does not entail that certain persons or groups have little resources or none at all. in the world we live, there are shortcomings in specific social contexts or within certain social groups or locations, but this scarcity does not have a global scope, it does not affect the world population as a whole. consequently, extreme inequality must be construed as an untenable and unjustifiable barrier preventing the effective enforcement of human rights within our current socioeconomic and political contexts, evidencing the close empirical-conceptual ties between economic inequality and poverty. this approach gives rise to an axiological and political criterion regarding poverty and inequality, also requiring taking a stance on justice (alston 2015:1). thus, although there are many demonstrations of poverty, the most significant is being hindered access and unavailability of resources, income and commodities as satisfiers of basic needs, which leads to shortcomings in terms of economic, social, political and legal power because prevent individuals from satisfying their basic needs, developing their basic capabilities and exercising their real freedom. moreover, it is not a matter of amount of resources, but rather of resource distribution. 10 as explained by parfit 2002: 81-125. see my insights in ribotta 2021c. http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 8 therefore, it becomes a matter of justice, because there are specific actions that could rearrange or restructure society to make it fairer. there are possible actions, also in the field of law. claims that we can make to the legal system in a concrete and direct way, such as its contribution to the invisibility of a clear structural problem, regulating rights disregarding or neglecting the fulfillment of basic human needs, consolidating social inequality structures based on major economic inequalities and perpetuating inequalities in the effectiveness and enforcement of rights. as noted by alegre, we should urge states and public authorities in general not to simply deal or manage poverty and the effects thereof, but to decidedly try to eradicate it (alegre 2007: 237; alston 2015: 3). in addition, to examine better the relationship between poverty and inequality we must first understand the key role of basic needs and how they intertwine with the rights framework and the human rights framework in particular. the current legal framework, in general, even human rights framework, barely relies on basic needs to justify or support the various rights. among other consequences, social rights are pushed into the background, dismissed and subordinated to civil and political rights, undermining the very democratic core of modern state (campbell 2007). although, the approach to needs has often been rather unappealing and unsystematic, as well as full of prejudices and not as meaningful as it should have been. current egalitarian theories of justice discuss human needs in a fearful and naive manner, through misleading and non-knowledgeable approaches or in a suspicious or distrustful way (dworkin 1981: 70-86; rawls 1999; rawls 1993: 79-85; ribotta 2008; ribotta 2010: 122-216) there is a wide array of approaches to needs that provide many concepts, constructs, stances and categorizations thereof11. aside from each theory’s specificities, broadly, they all draw a line between needs and rights, needs and satisfiers, although some authors confuse these elements or misuse them. this debate becomes particularly fruitful regarding the conceptualization and the role of needs as foundations of rights. i assume that we should not confuse needs and rights, because needs can (and should) primarily qualify as justifications or grounds for the provision or acknowledgment of rights (de lucas and añón roig 1990: 58; añón roig 1994: 283 ff.). also, needs should be construed as non-conclusive reasons to action, orienting or guiding decisionmaking unless other factors indicate otherwise. on top of that, identifying an unfulfilled need is, by itself, a good reason for fulfilling it, although it does not necessarily provide grounds for granting a right12. the notion of needs i advocate is based on the distinction 11 añón roig explains the various theories of needs and provides approaches to the definition of needs. añón roig 1994: 33-93, 93-147 and 151-193. among others, see braybrooke 1987; doyal and gough 1991: 193304; galtung. et al. 1980b; marmor 2003; miller 2002; nussbaum 2000; wiggins 1987; zimmerling 1990. 12 see pogge’s analysis of whether there is (or we can lay down) a right to basic needs, meaning a right to the fulfillment of basic needs. pogge wonders if needs themselves can give rise to a right to fulfillment and examines how the claims for subsequent obligations to address extreme poverty should work, without entailing extraordinary claims against other stakeholders (pogge 2007b: 14-15). we can establish a connection between this and ashford’s analyses on positive and negative obligations within the hypothetical human right to basic needs (ashford 2007). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 9 between needs and need satisfiers, and needs and preferences, where needs prevail over preferences (frankfurt 1988; braybrooke 1987: 60-75). for these distinctions, we must draw a boundary between the non-volitional aspects of needs over the volitional aspect for the preferences, as well as between the biological need to preserve life and the sociocultural constraints of situated individuals13. from certain structural preconditions (socioenvironmentally balanced setting construed as adequate natural and social environment for the development and fulfillment of needs), i make a distinction between basic needs and needs arising from satisfiers, distinguish between adequate satisfiers and preferred satisfiers, basic needs (comprise absolute or strictly human needs and relational or social needs) and preferences. need satisfiers are defined within the situated social context of the person in need, as specific location, time and cultural context, and they are conditioned by historical, economic, cultural, political and social (galtung 1980a: 60-72). although, admittedly there are unique or essential satisfiers, like water and air, and access to situated energy services (thomson & snell 2013: 52, 563-572, among others). these resources must be available in public access, in sufficient quantity and quality to preserve human life and allow for human development. therefore, they qualify as cross-sectoral satisfiers fulfilling all human needs. unquestionably, in situations of poverty and unfulfilled needs, human beings are neither free nor truly autonomous. although the causes of poverty are complex, poverty is unquestionably a matter of structural injustice related to the distribution of world resources as well as domestic resource allocation inside each state14. as a result, there are significant economic inequalities empirically leading to poverty. economic inequality is a major cause for poverty and the greatest obstacle to eradicating it15. the uneven distribution of wealth is the proof that there are sufficient resources to eradicate poverty (or mitigate it, at least) prioritizing the most urgent or strictly human needs, which are those that allow human life in adequate conditions. the degree which makes−both poverty and inequality−concerning or unfair, will depend on the gap between both sides of the inequality spectrum, of how low the lower limit is and if it is enough to cover basic needs within a specific, diverse and situated context in which people live. 13 see my approach to needs and the categorization thereof in ribotta 2011. 14 pogge explains the causes related to interactional harms, interactional failures to alleviate, causes related to social institutions and those tied to the contemporary world order (pogge 2007a: 16-51). 15 economic inequality is not the same as income or wealth inequality. rather, it has to do with unequal access or unavailability of appropriate satisfiers (income or resources) which, on top of personal, social, and contextual factors of the individuals involved, prevents them from developing and pursuing their basic capabilities. income and wealth thus qualify as means that enable access to resources and refer to two distinct tiers of economic inequality. within contexts of economic inequality, wealth inequality will often exceed income inequality. moreover, as income inequality increases, it becomes easier to generate more wealth, thereby widening the wealth gap (except in bad strategies or bad luck). also, there could be social scenarios with something close to income equality although showing deep wealth inequalities triggered by inheritance policies and laws based on strong social stratification criteria, without social mobility. both income and wealth inequalities are closely tied and affect each other, but they are conceptually different, arise from separate economic dynamics, and neither fully explain nor cover economic inequalities or all the dimensions thereof. http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 10 accordingly, the philosophical, legal, economic and political concerns about economic inequality and poverty should go beyond noticing that some people are wealthier than others are, and have more (or less) resources, to develop their life plans. philosophy, law, economy and political and social science, in general, should focus on how economic inequality lays the groundwork for poverty and leads to it, preventing the underprivileged from exercising their basic capabilities on an equal footing and thus preventing them from enjoying their freely chosen life plans. moreover, with has a severe impact on the democratic stability of each state and the world system. likewise, to fully grasp the overall impact of economic inequality, we must differentiate it from other forms of inequality, assuming human diversity and the heterogeneity of our social and natural contexts affecting our lives. thus, individuals are equal human beings, equality being a social construct, but completely different in terms of internal and external human traits (physical, psychological, cultural, and moral traits) determined by our social, economic, religious, cultural and historical context (añón roig 2001; atkinson, glaude and olier 2001; temkin, 1996: 19-52; williams, 1970). therefore, whereas difference is descriptive, equality is a normative concept and refers to the constructed social arrangement requiring that all persons be treated equally as justice criteria. inequality, on the other hand, results from the way us human beings arrange ourselves and distribute resources and social assets, as well as from the societal positions arising from such arrangement and distribution. briefly, inequality is a historical, cultural, economic and legal phenomenon tied to social stratification and can turn into a serious social issue (de lucas 1996: 493; lópez aranguren 2005: 60 ff.). accordingly, social differentiation is inherent to all human beings, but social inequality is based on context and has to do with the positions held by individuals within any given social structure. those positions are linked to major and traditional grounds for discrimination, as sex-gender, ethnicity-race, social or cultural background, or socioeconomic status. there are additional sources of inequality based on age, talents, capabilities-disabilities, nationality or religion, among others. all of those grounds for discrimination and inequality works as intersectionalities and are transversally tied to heteropatriarchy and colonialism (kerbo 2000: 11 ff.)16. in consequence, these forms of inequality are connected, they overlap and influence each other in various ways depending on social context and historical, political or economic moments, thus establishing various hierarchies and having various situated implications for the quality of life and rights. however, taking a poverty-based approach, economic inequality can be the most harmful inequality, being able to directly predetermining the remaining social inequalities and hindering possible strategies to overcome these inequalities and furthering the exclusion of underprivileged groups. 16 these aspects trigger various inequalities due to the social assessment of societal differences, leading to a different consideration of individual features or an unequal or hierarchical arrangement of social roles (standing, honor, social status). moreover, because certain social positions place some persons in a more suitable position to access a more significant share of goods and satisfiers (social inequality in terms of access to privileged social positions, wealth-poverty). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 11 as a result, economic inequality operates as an aggravating factor for inequality, vulnerability and discrimination17, creating a vicious circle in economic inequality scenarios that chronicles the economic inequality itself and its most direct and grave consequence, the poverty. this endemic inequality is mostly due to an ongoing legacy of unequal opportunity, based on an injustice social stratification system that deepens inequality even more and the discrimination against them resulting therefrom. consequently, economic inequality can thus qualify as a context allowing for questionable poverty, as a claim for justice, where poverty is defined in relational terms and examined as a social issue that demands political and social actions. anyway, poverty is tied to situations where resources can be redistributed more fairly or in a given redistribution that can be assessed in terms of justice or injustice. poverty can also be assessed in comparative and relative terms. so, while a given society can fulfill greater and more sophisticated needs for some of its members, the needs that can be fulfilled by such society for all of its members must will also increase. indeed, the greater the available options for that society in terms of overall wealth, the greater its potential to fulfill a wider range of needs for all its members, not only including basic needs, strictly human needs, but also cultural and social needs and the preferences. there is a significant connection between the overall degrees of economic development achieved by a concrete society, its form of government, its internal economic inequality, the quality of life of all its members. moreover, at the same time, the assessment that the situation of poverty is more unjustifiable and unfair. this allows shifting the degree of poverty and inequality qualifying as unfair based on the overall society’s wealth or the quality of life enjoyed by a share of the population compared to the poorer share. in order to re-assess the scope for political, economic and legal actions and decision-making for mitigating poverty and inequality and for contextualizing and putting into perspective potential justice claims. based on these arguments, i assume that poverty is an outcome of economic inequality, which results from a distinct and deeply unequal arrangement and allocation of resources reinforced by a legal, political, economic and cultural model. the impact of economic inequality on humanity’s quality of life can be better explained from the perspective of basic needs and their ties with rights -social rights, in particular-, the effectiveness of public policymaking, and the unequal opportunity and its connection with the degree of autonomy that actually enjoyed by situated individuals. 3. poverty, unequal opportunities, autonomy, and rights (because we are not free if we are poor) indeed, impoverished human beings are enslaved to their shortcomings, hardships and deprivation, as well as to the various sources of social oppression entailed thereby. sadly, the law and legal frameworks play a major role in furthering and consolidating hindered access to, and enjoyment of, rights and entitlements, thereby distorting equal 17 i discussed this matter in detail in ribotta 2020. http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 12 opportunity and reproducing structural poverty. under structural and circumstantial poverty conditions, an anthropologically empty freedom is enjoyed, thus creating a vicious circle of inherited unequal opportunities based on a social stratification system where social classes act like castes. in fact, social classes acts like castes with the law legitimizing the unequal opportunities and strategies of life allegedly based on meritsdesert and innate talents, through policies that further consolidate a strong and deeply rooted social stratification with barely any social mobility (or none), tied to a strict and hypocritical system of individual responsibility18. equal opportunity has been widely discussed from many stances, including the most egalitarian positions and the utmost liberal approaches (arrow, bowles, durlauf 2000: part iii; barry, 1988: 23-46; bowie 1988; roemer, 1998). in order to present the controversial issues in line with my arguments, cohen’s classification is highly illustrative, because for him, equal opportunity removes obstacles to accessing the opportunities available to some people but not to others (cohen 1989; cohen 1999; parfit 2002). first, cohen distinguish a minimum equal opportunity standard that ends restrictions on equal opportunity based on socially constructed status, as those experienced by serfs in feudalism or black people within racist societies. this kind of equal opportunity widens the range of feasible options for people, removing the restrictions arising from pre-awarded rights and social perceptions. thus, it is an inclusive equal opportunity brings all persons into dynamics of democracy and freedom. obviously, is extremely important for the exercise and enforcement of rights, as well as required for democracies to work, particularly in ours liberal modern times. however, it most certainly does not suffice to secure equal opportunity. the second model of equality of opportunity goes a step further, because it tackles the restrictive social effects disregarded by liberal equality, as circumstances at birth or education. they have the ability to exclude people, not because they award a lower status from the outset, but because they throw individuals into poverty and poverty-related deprivation. indeed, deprivations and hardships addressed by the second kind of equal opportunities approach to equal opportunity directly arise from personal circumstances, where their ability to restrict freedoms has nothing to do with social perceptions or preawarded rights. so, when these equal opportunities is fully achieved, their natural talents and choices determine the fate of people. thus, under this approach, whether some people are better off or worst, not depends on their social background. for this reason, correcting social disadvantages but not innate or birth disadvantages, which qualify as structural. this kind of equal opportunity thus remains compatible with considerably unequal outcomes. cohen’s third kind of equality of opportunity is the so-called socialist equality of opportunity. under this approach, inequalities stemming from innate or structural differences are as unfair as those arising from unwanted social backgrounds are. socialist equal opportunity seeks to remedy any disadvantages that have not been chosen, disadvantages for which the person involved cannot be reasonably held accountable, 18 the current levels of income inequality far exceed what can be justified because of talent, personal effort and merit. see piketty, 2014: 302-448, among others. http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 13 whether disadvantages reflecting social misfortune or natural misfortune. if socialist equality of opportunity prevails, differences in outcome solely reflect differences in tastes or choices, but not different capabilities or differences innate talents or social powers. so, under this kind of equal opportunity, income gaps are acceptable if they only show different preferences (as wanting higher earnings or more spare time). cohen argues that socialist equality of opportunity is the closest to achieving equal outcomes for all, since no egalitarian thinker could challenge these outcomes because such differences do not amount to inequalities in life advantages unless individuals can be held accountable for them. instead, the previous approach to equal opportunity supports that not chosen social disadvantages may be detrimental to people, but it does not inquire about what makes social disadvantages unfair. if these disadvantages are unfair just because they were not chosen, insofar as natural disadvantages neither are matters of choice, no this model of equality advocates should reject the socialist approach to equality of opportunities. this shift to socialist equality of opportunity can only be rejected by those who draw a distinction between social and natural disadvantages claiming that social disadvantages are unfair due to additional reasons other than being not chosen or unwanted this approach to equality of opportunity is based on cohen’s theory of equality, aimed at reducing or eliminating involuntary disadvantage or, in the words of parfit, which certain people not be worse off than others (parfit, 2002). it is a largely relational proposal, where only equality (and not priority) can remove such disadvantage19. access to advantage refers to any asset, regardless of how the person obtained it, even if it did not entail any exploitation or exercise of capabilities, since it requires considering all states of persons, including those situations that have neither been caused or triggered thereby, as desirable states achieved without exercising any capability (cohen 1993). in cohen’s view, the key distinction should be between choices and luck in determining persons’ fate, since a person should be considered exploited when advantages are distributed unequally and suffers from bad luck that is not the product of risky decisions that they could have been avoided. what matters is that there be no major inequalities regarding what is necessary, since having opportunities does not ensure that persons have actual access to the advantages offered to them as opportunities (cohen 1989: 920)20. cohen did not define the advantages or whether they can be ranked or hierarchically arranged21. however, he assumes that the absence of resources and welfare 19 cohen’s equal access to advantage theory is highly influenced by richard arneson’s equality of opportunity for welfare theory, and can be considered a critical review of dworkin’s, rawls’s and sen’s theories (arneson 1989; cohen 1989; ribotta 2010: 119-243). 20 cohen places particular importance on individual responsibility. however, it draws a clear boundary between responsibility and bad luck, understanding the effects of genuine choices contrast with brute luck (cohen 1989: 931; daniels 1990: 290-291). 21 according to cohen, the advantage is a heterogeneous collection of desirable states of the person that cannot be reduced to rawlsian goods nor dworkin’s resource bundles. cohen’s definition of advantage includes welfare considerations and resembles a broad interpretation of the sen’s notion of functionings. cohen is reluctant to use the word advantage, but it has not been able to find a better one for his proposal, and he posits his theory without any competitive connotations (cohen 1989: 917, notes 17 and 18). http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 14 lead to different types of disadvantages that also trigger additional sub-categories such as poverty, physical weakness, shortages, scarcity or non-fulfillment of the objectives pursued22. cohen, in line with sen, seeks to eliminate involuntary disadvantages for which the sufferer cannot be held responsible, ensuring that persons have all external means available to develop and realize their life plans on an equal opportunity basis, not only assessing equality in terms of resources but also regarding each individual’s internal utility. nevertheless, what is most significant for cohen is to draw a distinction between personal choices and the bad luck affecting their fates. he claims that any inequalities arising from unwanted or not chosen conditions should be compensated. in facts, in cohen’s view, the deep inequalities we currently witness evidence an unequal access to advantage. from cohen and sen approaches, the understanding of equal opportunity on the basis of natural talents or not chosen structural conditions leads to injustice, even if these natural conditions can be somewhat traced back to persons’ choices, as long as the latter are not truly free. innate talents are not alien to the material and social conditions for personal development, assuming those strictly human needs, as well as social or relational needs, should be appropriately fulfilled. thus, the talents on which the exercise of capabilities is based are potential abilities that will develop mostly depending on the material conditions of persons’ social backgrounds and other social conditions not directly related with social background, tied to the satisfiers needed to develop capabilities and realize life plans. there are material and social constraints on talents, since having the potential is (at most) a precondition to develop a talent, but it does not guarantee that an individual will develop their innate talent or how he or she will do so. we are born with a certain potential and a skill set that do not guarantee a specific outcome. these innate conditions do foster talent and lay the groundwork for developing it. however, the development of innate talents will only take place throughout a person’s life and will depend on the contextual circumstances. in addition, these talents will differ (different kind of talents and in different amounts), but they will always be affected by additional factors, which may or may not flow from will or personal choices as well as by a dose -generally highof luck. these factors could encourage, hinder or even prevent the fulfillment of an individual’s potential. factors will ultimately make the difference when it comes to having and developing certain talents or capacities, and they will be directly tied to the poverty conditions suffered by disadvantaged people. indeed, these factors have a major impact on the appropriate fulfillment of strictly human and social or relational needs, as well as on the access to equal opportunity conditions allowing them to enjoy those social advantages that enable the exercise of actual freedom. 22 cohen emphasizes that his equal access to advantage is more far-reaching than sen’s basic capabilities approach since access includes the capability itself and the opportunity to realize it, the external control of the means and the opportunity to implement them. cohen differentiates between capability and capacity. capabilities could be construed as skills/talents, and capacity as the ability to do something, resembling sen’s functionings and capabilities. (cohen 1989: 941; cohen 1993). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 15 4. law and social justice (because law legitimizes social injustice) poverty is a form of social oppression and a violation of rights, particularly human rights, since poverty necessarily entails the violation of the rights to life, health, education, housing, a job, freedom, political participation, and all its manifestations. moreover, the most basic and relevant rights accompany the idea of human dignity (arnsperger 2004; cohen 2005; fleurbaey 2007; gargarella 2006; pogge 2007a: 11-15). as noted by sengupta, poverty is always a degradation of human dignity, and extreme poverty is, therefore, a form of severe degradation (sengupta 2007: 324-325). poverty, without further qualification, constitutes a human rights violation. poverty compromises the preservation of human nature and the exercise of basic human freedoms. in addition, poverty entails exerting economic violence on society as a whole. its effects resemble those of physical violence, but it can be even more dangerous (fleurbaey 2007: 141). eradicating poverty is thus a moral and ethical obligation, but also a legal and political obligation (pogge 2007a: 13). in addition, poverty entails exerting economic violence on society as a whole. its effects resemble physical violence but can be even more dangerous (fleurbaey 2007: 141). eradicating poverty is thus a moral and ethical obligation, and a legal and political one. living without poverty or hunger is one of the human rights and fundamental freedoms enshrined in the universal declaration of human rights, reaffirmed in the international covenant on economic, social, and cultural rights and the international covenant on civil and political rights and its optional protocols. these international instruments confirm that poverty is a denial of human rights, since misery entails a violation of all rights, thus undermining the quality of life and threatening life itself. therefore, hunger and poverty should not only be regarded as the utmost violation of rights. they could also qualify as degrading treatment or even rise to torture, in light of the case law of the inter-american court of human rights, the former european commission on human rights, the european court of human rights, and un experts. according to these legal sources, hunger, poverty, misery, and social exclusion could be considered a form of torture, cruel, inhuman, and degrading treatment (barcelona 2017; gialdino 2003; parra vera 2012)23. therefore, poverty conditions imply abuse or ill-treatment. 23 see, e.g., the inter-american court of human rights cases “niños de la calle (villagrán morales et al.) v. guatemala”, judgment of 19 november 1999, c series no. 63; “loayza tamayo v. peru”, judgment of 17 september 1997, c series no. 33; “instituto de reeducación del menor v. paraguay”, judgment of 2 september 2004, c series no. 112 and “servellón garcía et al. v. honduras”, judgment of 21 september 2006, c series no. 152. within the former european commission on human rights, see “van volsen v. belgium,” commission decision of 9 may 1990, complaint no. 14641/89 and “f.n. v. france,” decision of 10 october 1994, complaint no. 18725/91. regarding the cases of european court of human rights, see “moldovan et al. v. romania”, no. 2, judgment of 12 july 2005, complaints no. 41138/98 and 6432/01; “m.s.s. v. greece and belgium”, judgment of 21 january 2011, complaint no. 30696/09; “s.h.h. v. united kingdom”, judgment of 29 january 2013, complaint no. 60367/10; “f.h. v. greece”, judgment of 31 july 2014, complaint no. 78456/11; “v.m. et al. v. belgium”, judgment of 7 july 2015, complaint no. 60125/11, “a.s. v. switzerland”, judgment of 30 june 2015, complaint no. 39350/13 and “amadou v. greece”, judgment of 4 february 2016, complaint no. 37991/11. http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 16 they violate the most basic rules of international human rights law, undermining the fundamental principles of non-discrimination and equality and breaching civil, political, economic, social, and cultural rights. thus, poverty is one of the most blatant expressions of social injustice, empirically tied to economic inequality, where the non-fulfillment of basic needs of the underprivileged shows the extent of the injustice. and at the same time, the potential to mitigate such disadvantage because of the possibility of implementing redistributive strategies based on social justice standards. economic inequality places people in a different and unequal relationship regarding their satisfiers and preferences within their social, political, economic, and cultural framework. admittedly, poverty can be a relative concept directly tied to wealth and the development of each society. however, poverty can be identified as a social issue when hindered access and enjoyment involves that basic needs are left unfulfilled. moreover, there is a set of objective, universal and indispensable needs; non-fulfillment of those needs is incompatible with preserving life or even survival. according to cohen, inequality hinders equal access to advantage by the underprivileged, preventing the satisfaction of underprivileged persons’ needs (cohen 1989; cohen 1993). therefore, testing inequality through justice standards entails assessing how disadvantaged the underprivileged are and how advantaged those in the upper end of the inequality gap are. the first leg of the justice test refers to the need to question or challenge poverty based on the non-fulfillment of strictly human needs. the second leg of the justice test refers to redistributing resources, which seems possible considering that we are sure about the enormous amount of resources exceeding a share of the population’s needs. this clash shows the assessment of social injustice. the lower threshold for the underprivileged, thus giving rise to a social issue and questionable poverty, is provided by the non-fulfillment of strictly human needs required to develop basic human capabilities. at the same time, the upper threshold of those belonging to the more advantaged people provides the framework for redistributive options. however, this claim does not justify the opposite. the absence of economic inequality does not always imply greater social justice; better said, reducing economic inequalities does not necessarily entail a decrease in poverty. at least two general situations can occur when societies do not suffer significant levels of economic inequality, or their internal gap has been steadily bridged. in first group of cases, we can see societies with very low economic inequality or even actual equality recording no losses in the human development index (hdi) concerning the inequality-adjusted human development index (ihdi). so, there is no overall loss to human development due to equality−simultaneously showing an objectively high level of human development for all members of society24. and in the second group, societies with a low level of inequality, a small gap between rich 24 countries such as finland, iceland, denmark, belgium, austria, sweden, netherlands, norway, uk. undp 2022: 281-285. https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf http://10.17561/tahrj.v20.7327 https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 17 and poor, but where people suffer from questionable poverty, with unfulfilled basic needs facing poverty, structural poverty conditions or extreme poverty, thus being countries with some of the world’s lowest hdis25. in any case, assuming that economic inequalities generate unequal access to social advantages, the higher the inequality level, the wider the gap between social groups and the more unlikely it will be to find average groups (kerbo 2000: 11 ff.; undp, 2022). in addition, the more challenging it is to access social advantages, the more questionable the poverty suffered by the underprivileged because they will have a lesser chance to fulfill their strictly human needs and the remaining basic or relational needs. simultaneously, that gap shows that societies have specific resources that could be redistributed through social and tax policies or other public policies, narrowing the gap. however, it requires taking a critical stance toward economic efficiency and pareto efficiency -or pareto optimality from a proposal that overcomes leveling down and advocating a robust equality position (cohen 1995; sen 1970; ribotta 2010: 388-400; ribotta 2017). economic inequality does not only empirically lead to poverty. it turns poverty into a matter of social justice because it confirms that there is something we can do about it, actions to tackle it and reduce it. unquestionably, it is for public authorities and governments to implement these actions since they are the rule-makers and policymakers, as well as the ones responsible for allocating rights and resources while enabling the enforcement of rights. so, poverty construed as a social issue becomes a matter of social (in)justice when perceived or examined as the result of political and legal decisions, the impact of the world’s policies about the resources, rights, and powers distribution, and the injustice underlying global agreements (pogge 2007a: 52-53). it is worth emphasizing that poverty is not a natural phenomenon. indeed, it is a political and social process resulting from how we have arranged our societies, following a concrete economic, social, political, and legal system called capitalism (and its different ways). in any case, countries must commit themselves to the enforcement of human rights seeking to reduce economic inequalities to achieve overall equality. and they must directly incorporate the issue of resources and redistribution into the human rights agenda (alston 2015: 2). poverty must be construed as the result of high economic inequality levels that hinder the appropriate fulfillment of human needs, thus preventing impoverished human beings from developing their capabilities and plans of life, depriving them of their spheres of freedom and access to social advantages. as a result, this creates a situation that is not only intuitively unfair, but also morally reprehensible, economically inefficient, and politically unacceptable. 25 countries like democratic republic of the congo, malawi, ethiopia, yemen, burkina faso, burundi, mozambique, mali, and niger, which records the world’s lowest hdi. undp 2022: 281-285. https://hdr. undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf http://10.17561/tahrj.v20.7327 https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 18 however, paradoxically, poverty conditions occur within legal scenarios and frameworks where, on an a priori basis at least, poverty is not perceived as a human rights violation. as noted by fleurbaey, human rights are narrowly construed, allowing for significant economic inequalities that, shockingly, are found perfectly compatible with human rights. self-evidently, one should seriously question this compatibility between economic inequality and human rights compliance upon confirming that poverty qualifies as a severe human rights violation (fleurbaey, 2007: 133; ribotta, 2015). alston calls on the international community and human rights organizations to take responsibility and face the fact that extreme inequality undermines human rights and that are specific boundaries beyond which a certain level of inequality is incompatible with equality, dignity, and human rights. supporting human rights entails assuming, in each democratic state and as a global society, the need to reduce the extreme inequality to eliminate radically. they should do this by implementing suitable redistributive measures based on consistent and sound tax policies and turning the effectiveness of social rights into the core of public policies (alston, 2015; alston & reisch, 2019). therefore, we must make visible all internal legal structures that legitimize, allow, and even encourage an unequal social framework. legal structures also provide the basis for legal systems and hierarchies that turn their back on social justice claims arising from poverty and economic inequality. moreover, the legal systems in general, even the human rights system, do not adequately contemplate and, in some cases, even disregard needs as reasons (good reasons) to grounds for establishing rights. at the same process, they do not adequately contemplate and, in some cases, even disregard the relationships and interconnections among the core values of democracy, such as freedom and equality and the actual and effective enjoyment of equal opportunity conditions with the situations of poverty. indeed, the existing significant inequalities, unfulfilled needs, and ongoing poverty conditions severely threaten the human rights system because they necessarily entail rights violations. inequality and poverty undermine social, economic, and cultural rights and the exercise and enjoyment of individual civil and political rights. in fact, the most pressing material needs are the ones closely connected with social rights, which are often subordinated to civil and political rights. as stated by campbell, even when social rights are officially given the same importance as civil and political rights, there is no doubt that, for one reason or another, they end up being ignored in practice (campbell 2007: 56). moreover, more importantly, those being neglected is not socially and politically perceived as a violation of the nonderogable democratic core of modern and democratic states. these neglected social rights can even be limited, restricted, or denied while the authorities and institutions disregard the parasitic relationship between them and individual, civil and political rights. in addition, therefore, the severe negative impact that the ineffectiveness of social rights implies on the effectiveness of civil, individual, and political rights. social and economic rights must become a central element of the human rights system, and they should be regarded as relevant as civil and political rights (alston 2015: 2). http://10.17561/tahrj.v20.7327 silvina ribotta the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 19 assuming this conceptual framework on poverty and inequality−and, the relevant role of needs as grounds for rights− invite (as logical action) challenge the structural hierarchy of the rights frameworks currently in place, particularly of the human rights system. we should transfer the scheme of needs to a scheme of rights, which implies, concerning the current model of human rights, a vindication of social, economic, and cultural rights over the rest of the rights. the clear conceptual, empirical, and connected effectiveness interrelationships that civil, individual, and political rights exercise over social rights are visible and highlight the close link between strictly human and basic or relational needs and social rights. for those reasons, poverty is a matter of justice because it is a social, economic, and political question involving political and legal decisions. any approach to the issue from a social justice perspective requires drafting redistributive policies that implement social state requirements while acknowledging and actually enforcing social rights. this approach should incorporate tax policies and regulations as a central element of human rights. implementing redistribution effectively through suitable tax policies is essential for society to enjoy human rights entirely. as noted by alston, tax policies are human rights policies. in addition, it should be acknowledged that a country’s form of government, tax schemes (whether more progressive or more regressive), the applicability of tax exemptions or deductions to specific groups, and subsidy-related or public spending decisions have a major impact on the enjoyment and effectiveness of human rights. adopting appropriate redistributive measures with sound tax policies supporting a solid welfare system providing for social and economic rights is a political decision, there is no doubt. nevertheless, it is also the only appropriate political decision to guarantee that society as a whole fully enjoys human rights (alston 2015: 2-3; alston & reisch 2019)26. it is vital to develop legal frameworks closer to the theory of needs when providing grounds for rights, not ignoring the requirements of material equality and satisfaction of basic needs for the exercise of basic human capacities, guaranteeing the enjoyment of genuine freedom and the development of freely chosen life plans. as pointed out by fleurbaey, if we regard poverty and inequality as forms of oppression, the fundamental rights to personal integrity are only fulfilled if we simultaneously acknowledge an extended right to escape poverty (fleurbaey 2007: 154). unquestionably, these goals call for governments that take tax policies seriously. for those reasons, the governments that implement tax policies as human right policies secure egalitarian and effective social frameworks leading to socially and environmentally sustainable economic growth. such a system must be supported by sustainable economies and legal systems ensuring a high level of social justice. in few words, if poverty has been a product of legal and political decisions, eradicating poverty also requires legal and political decisions. 26 it is worth inquiring about the relationship between tax policies and human rights in connection with corruption and transparency and accountability requirements (alston & reisch 2019: part iii; malem seña 2017). http://10.17561/tahrj.v20.7327 poverty as a matter of justice the age of human rights journal, 20 (june 2023), e7327 issn: 2340-9592 doi: 10.17561/tahrj.v20.7327 20 references alegre, m. 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(1990), “necesidades básicas y relativismo moral”, doxa, nº 7, pp. 35-54. https://doi.org/10.14198/doxa1990.7.02 received: august 1st 2022 accepted: november 21st 2022 http://10.17561/tahrj.v20.7327 https://doi.org/10.1016/j.enpol.2012.10.009 https://doi.org/10.1016/j.enpol.2012.10.009 https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf https://hdr.undp.org/system/files/documents/global-report-document/hdr2021-22pdf_1.pdf https://doi.org/10.1126/science.368.6492.700 https://doi.org/10.1126/science.368.6492.700 https://doi.org/10.14198/doxa1990.7.02 poverty as a matter of justice abstract 1. we must talk about poverty (because the topic is avoided) 2. poverty and injustice (because poverty involves social injustice) 3. poverty, unequal opportunities, autonomy, and rights (because we are not free if we are poor) 4. law and social justice (because law legitimizes social injustice) references legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 1 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) svitlana hrynko1, ruslan hrynko2, maksym levytskyi3, artem makovskyi4, oleksandr bilovskyi5 abstract: the article defines the specifics of private legal protection of the right to freedom and personal inviolability of an individual in ukraine. it elaborates on the content of the right to freedom and personal inviolability of a natural person, including both physical and psychological inviolability. the article identifies methods that violate the psychological inviolability of an individual (hypnosis, polygraph, etc.). private legal protection of the right to freedom and personal inviolability, characterized as a personal nonproperty right of a natural person, has been analyzed in the context of legal regulations. the conclusion has been drawn that the right to freedom and personal inviolability is safeguarded through the establishment of a set of prohibitions regarding its infringement and methods of protection in case of violation. both private legal and public legal means of protecting the right to freedom and personal inviolability of a natural person have been identified. the article characterizes violations of the right to freedom and personal inviolability of an individual in the context of their placement in places of liberty deprivation (orphanages, psychiatric hospitals, boarding schools, military guard-houses, detention facilities, etc.). through the analysis of ukrainian judicial practice and the european court of human rights, the conclusion has been drawn that there are cases where there are no legal grounds for placing individuals in places of liberty deprivation, as well as instances of torture, cruel, inhuman, and degrading treatment of these individuals. keywords: legal protection, human rights, physical inviolability, mental health, psychological inviolability, psychophysiological equipment, criminal process. 1 doctor of law, professor. head of the department of civil law and procedure. leonid yuzkov khmelnytskyi university of management and law, 29013, heroiv maidanu st., 8, khmelnytskyi, ukraine. email: svetgrin27@ukr.net 2 phd. professor of the department of administrative activities. bogdan khmelnytskyi national academy of the state border guard servise of ukraine, 29000, 46 shevchenko str., khmelnytskyi, ukraine. email: rvg14@ukr.net 3 phd. senior lecturer of the department of legal theory and criminal procedural activities. bogdan khmelnytskyi national academy of the state border guard servise of ukraine, 29000, 46 shevchenko str., khmelnytskyi, ukraine. email: 210486max@ukr.net 4 phd. senior lecturer of the department of psychology, pedagogy and socio-economic disciplines. bogdan khmelnytskyi national academy of the state border guard servise of ukraine, 29000, 46 shevchenko str., khmelnytskyi, ukraine. email: makovsli200844@gmail.com 5 phd. senior lecturer of the border service department. bogdan khmelnytskyi national academy of the state border guard servise of ukraine, 29000, 46 shevchenko str., khmelnytskyi, ukraine. email: lennartoloffson@gmail.com https://doi.org/10.17561/tahrj.v22.8426 mailto:svetgrin27@ukr.net mailto:rvg14@ukr.net mailto:210486max@ukr.net mailto:makovsli200844@gmail.com mailto:lennartoloffson@gmail.com legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 2 1. introduction currently, there is growing theoretical and practical interest worldwide in personal freedom and its inviolability, as the right to freedom and personal inviolability constitute a complex of socially legitimate phenomena expressed in democracy, responsibility, and morality. considering the events occurring worldwide, the issues of suppression of freedom and limitations of inviolability are acute and painful. to satisfy their needs and interests, individuals have the right to personal self-organization and preservation of individuality. personal freedom and inviolability should be ensured with guarantees that allow for the restraint of the arbitrariness of state or officials and creation of a reliable mechanism for their protection. therefore, the primary task of any state is to create a mechanism for proper protection and realization of a person’s non-property rights. the relevance of this topic lies in addressing issues of a dignified human life, personal protection, and significance in society. protection of the right to freedom and personal inviolability is proclaimed by the constitution of ukraine (constitution of ukraine, 1996: article 29). the list of directions for personal freedom and inviolability is constantly expanding. this is due to the rapid development of life, cultural maturity of society, and its self-esteem. it should be noted that the existence of rights to freedom and personal inviolability in the state serves a wide range of personal interests. that is, the state recognizes freedom within the framework of existing legislation. at the same time, the state establishes guarantees for the protection of the right to freedom and personal inviolability (horbalinskiy, et al., 2023). it is necessary to focus on the issue of the relationship between private law and public law protection of the right to freedom and personal inviolability of a natural person. such interest is explained by different methods and means of protection, with a close connection between them. the european court of human rights (echr), when considering any complaints about violations of fundamental rights and freedoms of a person, always ensures private law protection of the applicant (determines compensation for moral damage). national and european courts also apply other means of protection at the request of the injured person. legislation and legal practice are constantly changing (hretsa, et al., 2022). this means that the new legal reality shifts certain focuses in research and requires a reevaluation of some aspects. all of this together underscores the need for a comprehensive study of private law protection of the right to freedom and personal inviolability of a natural person, as most problems related to the protection of personal non-property rights remain unresolved. the living conditions of an individual, protection and legal regulation of his or her rights to freedom and personal integrity have always been the focus of attention of many ukrainian researchers. only in the last three years, a number of interesting and relevant scientific investigations have been conducted, which are also related to the problem of our https://doi.org/10.17561/tahrj.v22.8426 svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 3 research. thus, andrusyshyn and the co-authors (аndrusyshyn et al., 2023) investigated the right of a person to a fair trial in extraordinary conditions. the researchers singled out directions for improving the activities of state authorities to ensure the right to a fair trial under martial law and concluded that activities under martial law require the adoption of non-standard decisions, and moreover it is necessary to develop the procedure for restoring lost court proceedings by the judicial self-government bodies. the subject of the research of burlaka and others (burlaka, et al., 2023) was the civil legal protection of the population, in particular, socially vulnerable categories of the population internally displaced persons (evacuees from the zone of active hostilities and occupied territories of ukraine). the problems of protecting the rights of internally displaced persons were also studied by izarova and others (izarova, et al., 2023), in particular, the scientist concluded that creation of alternative extrajudicial legal mechanisms will allow to prevent and settle civil disputes. reshota investigated the significance of court decisions as a source of law for protecting and securing human rights, in particular it was established that not all court decisions constitute a source of law, but only those that change, suspend or terminate the effect of a legal norm (reshota, et al., 2022). the influence of international law on the national law of ukraine in the field of criminal and civil law was the subject of study by morska with the co-authors (morska, et al., 2022), where the scientists concluded that when implementing certain provisions of acts of an international legal nature, the domestic legislator does not take into account the specifics of ukrainian legislation regarding criminal liability. omelchuk and his co-authors (omelchuk, et al., 2021) investigated the international aspect of human rights protection in the context of the development of the rule of law principle, in particular it was established that in the european region a large role in the development and interpretation of the concept of the rule of law is played by its judicial interpretation, as well as the indicators of the measurement of the rule of law index in the country and their analysis were characterized in the dynamics at the international level and the distribution of the rule of law index by factors in ukraine. thus, the main principles of legal protection of human rights, civil legal protection of internally displaced persons and the importance of international documents as a source of law in the resolution of legal disputes by the court were the subject of the scientists’ attention. however, the problems of determining the specifics of the legal protection of the right to freedom and personal integrity of ukrainian citizens in both private and public aspects, which is the purpose of this study, remained beyond attention of the abovementioned scientists. the purpose of the research is to identify the peculiarities of private legal protection of the right to freedom and personal inviolability of a natural person in ukraine. https://doi.org/10.17561/tahrj.v22.8426 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 4 research objectives: the objectives aimed at achieving the research goal are as follows: analyze the content of the right to freedom and personal inviolability and identify its elements; determine the features of the normative legal framework for the right to freedom and personal inviolability in national and international legislation; assess the practical implementation and protection of the right to freedom and personal inviolability through the lens of judicial practice in ukraine and the european court of human rights (echr). outline the issues and ways to address them regarding the protection of the right to freedom and personal inviolability. 2. methods the methodological basis of the scientific research is a combination of general scientific, philosophical and specific methods of scientific knowledge, the use of which ensured the reliability of the obtained results and solution of research tasks. with the help of historical and comparative methods, the genesis of the legal regulation of the protection of the right to freedom and personal integrity of ukrainian citizens, as well as the ratio of public-law and private-law methods of protecting this right, were investigated. both at the national and international levels. the formal-logical method was used to clarify the content of certain concepts and research categories (physical and personal integrity, right to freedom and personal integrity, polygraph). this technique contributed to the analysis of the norms of current national and international legislation, monitoring of violations of the right to freedom and personal integrity, which made it possible to identify gaps and formulate proposals for the protection of personal non-property rights of an individual. the comparative legal method contributed to a comprehensive study of the content of norms that are the basis for the application of methods of protection of personal nonproperty rights of an individual. this made it possible to compare national and international judicial practice in solving violations of the right to freedom and personal integrity. 3. results the right to personal freedom and inviolability serves as a guarantee of a person’s external and internal world. in the context of exercising the right to freedom and personal inviolability, it is appropriate to mention two main elements: physical and mental inviolability, characterizing the inner world of a person. prohibitions on physical and psychological pressure are established accordingly. https://doi.org/10.17561/tahrj.v22.8426 svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 5 physical inviolability includes prohibition of detaining a person without his or her consent, the use of torture, inflicting beatings, or any other methods of causing physical pain (infection with venereal diseases, administration of narcotic drugs, forced use of psychotropic drugs). physical inviolability also includes prohibition of interfering with medical treatment, diagnosis, sterilization, abortion, conducting medical-biological experiments, forced collection of anatomical materials etc. negative changes that occur in a person’s consciousness when physical suffering is inflicted lead to mental disorders. mental inviolability is ensured by prohibiting threats, blackmail, deception, as well as modern methods of obtaining information through the use of instrumental diagnostics and hypnosis. it is clear that regardless of the purpose of using these methods (for example, for treatment or in connection with the investigation of a criminal case), it is important to obtain the person’s consent, as the right to such application is not provided for in ukrainian legislation. it should be added that during the period of hypnotic sleep, certain influence and intrusion into a person’s consciousness can be induced, which is equivalent to subduing the will of the hypnotized person. however, during a criminal investigation, the use of hypnosis is effective as it can help restore the memory of a victim or a witness and obtain important information about specific events. at the same time, this method can devalue personal significance of a person. another means of obtaining necessary preliminary information and uncovering what a person is concealing is a polygraph. the polygraph is a type of psychophysiological equipment and a complex multi-channel hardware method for recording changes in a person’s psychophysiological reactions in response to the presentation of certain psychological stimuli (wikipedia, 2023). this method began to be actively used by law enforcement agencies and police in the united states. in 1965, the u.s. department of defense introduced a federal regulatory document regulating the procedure for using the polygraph (all-ukrainian association of polygraphists, 2023). in ukraine, the period of active conducting of forensic psychophysiological examinations began in the early 2000s (serhii, et al., 2023). in ukraine, there is an instruction on the procedure for using polygraphs in the national police of ukraine, approved by the order of the ministry of internal affairs of ukraine dated november 13, 2017, no. 920. besides supporters of using the polygraph, there were also many opponents. ukrainian scientists, in their reports, claimed the impossibility of examinations using the polygraph. this is because it activates memory, and the examinee begins to recall all possible details of the crime. while this may aid in the investigation, it has a negative impact on the emotional state of the accused, infringing upon their rights and freedoms. therefore, recreating the circumstances of the crime, conducting a lineup these methods do not “traumatize” the individual, in this case the suspect, while the use of the polygraph is considered less humane and legal (all-ukrainian association of polygraphists, 2023). it should also be noted that the polygraph records physiological indicators such as breathing rhythm, blood pressure levels, pupil reactions, and perspiration intensity. there https://doi.org/10.17561/tahrj.v22.8426 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 6 is plenty of evidence that physiological reactions do not change even when a person denies committing an offense. conversely, a person who did not commit a crime may demonstrate physiological changes under psychological stress that would indicate guilt. psychologists argue that the results obtained from a polygraph are not reliable. this demonstrates the imperfections of technical means or human factors. the private law protection of the right to freedom and personal inviolability as a personal non-property right of a natural person should primarily be considered in terms of normative legal regulation. a defining moment in this regard was the adoption of the civil code of ukraine in 2003, where book two is devoted to personal nonproperty rights. article 270 of the civil code of ukraine includes the right to freedom and personal inviolability among the types of personal non-property rights of a natural person. this right received separate normative legal consolidation in articles 288 and 289 of the civil code of ukraine. it should be noted that the placement of these articles in chapter 21 of this code means that the right to freedom and personal inviolability is classified as personal non-property rights that ensure the natural existence of a natural person. in the civil code of ukraine, the right to freedom and personal inviolability is protected by establishing a series of prohibitions on its violation and methods of protection in case of violations. prohibitions regarding the right to freedom of a natural person include physical pressure, psychological pressure, inducing the use of alcoholic beverages, narcotic and psychotropic substances, and other actions that violate the right to freedom (civil code of ukraine, 2003: article 288). the right to personal inviolability of a natural person is guaranteed by prohibiting torture, cruel, inhuman, or degrading treatment, behavior or punishment, physical punishment by parents (adoptive parents), guardians, custodians, caregivers of minors, juniors, and wards (civil code of ukraine, 2003: article 289). the right to freedom and personal inviolability is also enshrined in article 27 of the constitution of ukraine. this provision contains guarantees for the exercise of the right to freedom by establishing two prohibitions that no one can be arrested or detained except by a reasoned court decision, which can only be made on the grounds and in the manner prescribed by law. an exception to this rule is recognized as the urgent need to prevent a crime or stop it. law enforcement authorities authorized to do so can apply this exception as temporary preventive measures, the validity of which must be verified by a court within seventy-two hours. to protect the right to freedom of a natural person under the constitution of ukraine, the following public-law means have been established: 1. if within seventy-two hours from the moment of detention no reasoned court decision on detention is handed to a detained person, that person must be released immediately. 2. every arrested or detained person must be promptly notified of the reasons for their arrest or detention, have their rights explained to them, and be provided with https://doi.org/10.17561/tahrj.v22.8426 svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 7 the opportunity to defend themselves personally and to have legal assistance of a defender from the moment of detention. 3. every detained person has the right to challenge their detention in court at any time. 4. information about the arrest or detention of a person must be promptly communicated to the relatives of the arrested or detained person (civil code of ukraine, 2003: article 27). public legal guarantees of the right to freedom and personal inviolability are enshrined in the criminal procedure code of ukraine. thus, the state of ukraine guarantees respect for human dignity, rights and freedoms of every person during criminal proceedings (criminal procedure code of ukraine, 2013: part 1, article 11). prohibitions regarding the right to liberty during criminal proceedings include: 1) torture, cruel, inhuman or degrading treatment, treatment or punishment; 2) the threat of such treatment; 3) keep a person in humiliating conditions; 4) to force her to take actions that degrade her dignity (criminal procedure code of ukraine, 2013: part 2, article 11); 5) detention, being detained or restricted in the exercise of the right to free movement in another way due to suspicion or accusation of committing a criminal offense other than on the grounds and in the order provided by this code (criminal procedure code of ukraine, 2013: part 1, article 12). the criminal executive code of ukraine enshrines the prohibition of cruel, inhuman or degrading treatment of convicts (criminal executive code of ukraine, 2003: part 2, article 8). legal protection of the right to freedom and personal inviolability is anchored in international acts. the convention on the protection of human rights and fundamental freedoms establishes the following guarantees of this right: 1) no one can be deprived of liberty, except in such cases and in accordance with the procedure established by law (european convention on human rights, 1950: article 5); 2) no one may be subjected to torture or to inhuman or degrading treatment or punishment (european convention on human rights, 1950: article 3); 3) prohibition of slavery and forced labor (european convention on human rights, 1950: article 4). article 5 of this convention enshrines the public legal means of protecting the right to freedom and personal inviolability: informing the arrested person in a language understandable to him about the grounds for his arrest and about any charge brought against him; appear immediately before a judge or other official authorized by law to exercise judicial power, and he or she must be granted a trial by court within a reasonable time or be released during the proceedings; has the right to initiate proceedings during which the court without delay establishes the lawfulness of the detention and decides on release if the detention is illegal. private legal means of protecting the right to freedom and personal integrity include the right to compensation https://doi.org/10.17561/tahrj.v22.8426 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 8 (european convention on human rights, 1950: article 5). at the same time, everyone whose rights to freedom and personal integrity have been violated has the right to an effective means of legal protection in a national body, even if such a violation was committed by persons exercising their official powers (european convention on human rights, 1950: article 13). with regard to other international acts, which also regulate powers related to personal freedom and inviolability, the following should be highlighted: the universal declaration of human rights (1948); international covenant on civil and political rights (1966 p.); basic principles of treatment of prisoners (1990); minimum standards for the treatment of prisoners (1955); convention against torture and other cruel, inhuman or degrading treatment or punishment (1984). certain guarantees are also introduced at the level of by-laws. the right to freedom and personal inviolability is guaranteed by establishing a number of prohibitions in the instructions on the procedure for holding of detained persons in the state border protection bodies (units), approved by order of the ministry of internal affairs of ukraine dated march 30, 2015 no. 352. the temporary holding facilities are designed to keep citizens of ukraine, foreigners or stateless persons who have been detained by authorized personnel of the state border guard service of ukraine for committing administrative offenses or on suspicion of committing criminal offenses, as well as foreigners or stateless persons, in respect of whom a decision has been made to place them in appropriate temporary holding facilities for foreigners and stateless persons, who are illegally in the territory of ukraine. torture, cruel, inhuman and degrading treatment of detained persons by personnel of state border protection bodies (units) is prohibited (clause 6 of these instructions). an individual’s right to freedom may also be restricted in cases of placement in orphanages, psychiatric hospitals, boarding schools, guardhouses, prisons, and other places of deprivation of liberty. in accordance with the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment and punishment, ratified by the law of ukraine dated 21.07.2006 no. 22-v, and the law of ukraine “on the commissioner of the verkhovna rada of ukraine on human rights” the commissioner is entrusted with the functions of the national preventive mechanism. these functions are implemented through systematic inspection by the commissioner and representatives of the commissioner’s secretariat of places of detention, with the aim of monitoring compliance with the rights of persons detained (remaining) in these places, in particular, the right to protection against improper treatment (horoshynskyi, 2023). based on the analysis of the commissioner’s reports (annual and special reports www.ombudsman.gov.ua) for the years 2018-2022 and results of the commissioner’s response acts to the facts of illegal actions of law enforcement officers, the prosecutor’s office, infliction of bodily harm, torture, abuse of official position, leaving in danger, table 1 was formed. https://doi.org/10.17561/tahrj.v22.8426 www.ombudsman.gov.ua svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 9 table 1 year the number of acts recorded into in the unified register of pre-trial investigations 2018 74 2019 63 2020 203 2021 315 2022 8* * the impact of active hostilities there are cases where there are no legal grounds for placing individuals in places of detention, which causes a violation of the right to freedom and personal inviolability. this is evidenced by the materials of court decisions of national courts and the echr. in the case “beley v. ukraine” dated june 20, 2019, no. 34199/09, encroachments on the internal and external inviolability of the accused person are clearly demonstrated. the applicant appealed to the echr regarding illegal deprivation of liberty. also, the case file contains all the grounds that testify to the torture of the applicant by the law enforcement agencies, namely the qualified conclusions of the forensic medical examinations as “light”, confirming the brutality of the law enforcement agencies. from these circumstances, the applicant suffered physical and psychological pain. having considered all the circumstances, the court came to the conclusion that such treatment, aimed at obtaining testimony from the applicant about the crime, was deliberate and cruel and, accordingly, recognized the violation of article 3 of the convention on the protection of human rights and fundamental freedoms. undoubtedly, the timely conduct of forensic medical and forensic psychiatric examinations will give a high probability of proving the presence or absence of an offense (echr, 2019. beley v. ukraine). another example is the court decision dated september 19, 2019 in case no. 84368064 in the case of the submission of a petition by prosecutor o. zhadan on the continuation of the application of the preventive measure in the form of house arrest to the accused person in connection with the non-completion of the criminal proceedings. it should be noted that in that specific case, the starobilsk district court refers to the judicial practice of the echr and is quite reasonably guided by the decisions of the constitutional court of ukraine regarding restrictions on the right to freedom and personal integrity, clearly demonstrating the provisions contained in the universal declaration of human rights of 1948 and the international covenant on civil and political rights of 1966. therefore, taking into account all the above-mentioned legal norms, the request of prosecutor o. zhadan was refused (starobilsk district court, 2019). the case “serhii volosiuk v. ukraine” dated 12.06.2009 in case no. 1291/02 based on the petitioner’s appeal regarding the fact that his case was not considered within a reasonable time and was not released from custody during the proceedings as indicated in clause 3 of art. 5 of the convention. the european court states that it is the national courts that must ensure that the duration of pre-trial detention of the accused person in the https://doi.org/10.17561/tahrj.v22.8426 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 10 relevant case does not exceed a reasonable period. according to clause 3 of art. 5 of the convention, the expediency of keeping the accused person in custody and applying other alternative measures to secure him before the court should be considered (echr, 2009. volosiuk v. ukraine). the decision of the echr in the case “osypenko v. ukraine” dated february 9, 2011 in case no. 4634/04 is quite important. in this case, the applicant claimed that from 25 to 28 january 2002 he was unlawfully deprived of his liberty, the total duration of his detention was excessive. the court considers detention in custody based only on the gravity of the accusation to be unacceptable. in no case did the city court refer to certain circumstances regarding the impossibility of choosing alternative preventive measures instead of detention, and therefore it is obliged to substantiate this “impossibility” (echr, 2011. osypenko v. ukraine). one more example is the decision of the european court of human rights dated november 15, 2012, in case no. 49218/10 regarding inadequate provision of medical assistance in places of detention and the appropriateness of detaining seriously ill convicts. the applicant (the convict’s wife) applied to the echr, alleging a violation of article 3 of the convention and untimely and inadequate provision of medical assistance to her husband by the national competent authority, which led to a significant deterioration of his health (echr, 2012b. yermolenko v. ukraine). it is worth noting that in this specific case, the court acknowledges and supports the sequence of actions taken by the national authorities but emphasizes that an absolute prohibition of torture and inhuman treatment, which degrades human dignity according to article 3 of the convention, cannot be disregarded in all possible cases. it is necessary to assess the state of health of the convict, his or her age, and not to correlate all diseases with the general list of diseases, which allows to continue treatment in the place of deprivation of liberty. in the court’s opinion, this practice does not provide decent guarantees of protecting the health and well-being of convicts. under such circumstances, the court considers that the violation of art. 3 took place in a specific case. there are cases of violations of the right to personal inviolability of individuals placed in psychoneurological institutions, social protection facilities, and other places of prolonged stay. as a result of inspections by the prosecutor’s offices in certain regions, torture and cruel treatment were found to be applied to detainees subjected to forced isolation and physical restraint. for example, in the ivankiv regional special house-internat, no medical assistance is provided to wards, the majority of whom are disabled persons of groups 1 and 2, there is no medical staff, and no agreements have been concluded with healthcare institutions and medical personnel. the most common violations in specialized institutions in the zhytomyr region include failure to provide wards with the established norms of living space, hygiene products, tableware, household inventory, and the absence of basic necessities such as access to handwashing facilities, etc (вголос.zt, 2018). for a long time, there were places of liberty deprivation in the metro, where people were placed in cages at police posts. the existence of such ‘cages’ was not envisaged by https://doi.org/10.17561/tahrj.v22.8426 svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 11 any regulatory document, and detention of detainees was not documented in any way, significantly violating their right to freedom. furthermore, the placement of people in such ‘cages’ violated their right to personal inviolability since the conditions did not meet even minimal standards: people had no access to toilets, drinking water, phones, food, etc (zmina, 2017). additionally, we would like to outline the facts regarding violation of the nonproperty rights of the civilian population in the territories of ukraine occupied by the troops of the russian federation, noted in the report of the commissioner of the verkhovna rada of ukraine on human rights – “the russian side has no legal grounds for detaining civilians. a civilian cannot be detained at all, and if this happens, he or she must be released immediately! international organisations have documented numerous cases of “filtration measures”, enforced disappearances, tortures, forced mobilisation, and restrictions on the freedom of citizens in foreign detention camps committed by the occupation forces against ukrainian civilians. currently, the russian federation is completely ignoring the norms of international humanitarian law regarding to the civilian population of ukraine. in particular, by these actions, russia is violating the 4th geneva convention, article 3 of which prohibits the taking of civilian hostages. all civilian hostages are held in inadequate conditions of detention, they are not provided with a medical care and must work at least 12 hours a day to receive food, personal hygiene products and satisfy basic natural needs, they are unable to receive parcels from their relatives and to maintain contact with them” (ukrainian citizens held hostage in russia, 2023 https://cutt.ly/gwmnvc9k). according to the center for civil liberties, the russian authorities have put between 1 and 2 million ukrainian citizens through the so-called filtration process. if people do not pass this filtration, they end up in the so-called filtration camps, which can only be compared to concentration camps. as of the end of september 2022, there were at least 19 known filtration camps in the occupied territories of ukraine. according to human rights activists, numerous cases of torture have been reported in filtration camps. detainees are held in inhumane conditions and do not have access to information. they do not have proper medical and legal assistance, and are not allowed to communicate with their families. on november 11 2022, the ukrainian military liberated the city of kherson from russian occupation, which they had seized since the beginning of the full-scale invasion of ukraine. nine torture chambers were found on the territory of the liberated kherson region. they also found 432 bodies of civilians who had been killed. the liberation of the kherson region from the russian military revealed new facts of ill-treatment – residents of the region were subjected to more brutal methods of torture than in the regions that were previously under temporary occupation – kharkiv, kyiv, chernihiv. in these regions, we recorded torture chambers, but in kherson region, for the first time, we established the facts (from the testimony of people who were in these torture chambers) that men and women were kept together for weeks at a time in torture chambers around the clock. torture, beatings, sexual violence, but men and women were not kept together. moreover, they were not released for weeks. even women had to go to the toilet in front of men, and men had to go to the toilet in front of women. each cell had video cameras for surveillance. this round-the-clock video surveillance was recorded with sound. our citizens who were tortured emphasize this point and explain that they clearly https://doi.org/10.17561/tahrj.v22.8426 https://cutt.ly/gwmnvc9k legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 12 understood it. because as soon as kherson residents began to talk about the occupation, masked people immediately ran into the cameras and severely beat everyone (human rights in ukraine, 2023. https://cutt.ly/swmn1kzt). russia’s deliberate and categorical violation of international humanitarian law is evidenced by the testimonies of ukrainian servicemen released from captivity and information from various sources. numerous cases of execution of captured ukrainian soldiers, ill-treatment, torture, physical and psychological violence against them have been recorded. torture by electric current, infliction of gunshot or stab wounds are used by russians to obtain military information, intimidation, humiliation and revenge. these crimes are recorded by both the ukrainian parliament commissioner for human rights and international human rights organizations (un human rights monitoring mission in ukraine, the office of the united nations high commissioner for human rights, and the un independent international commission of inquiry on violations in ukraine). (protection of rights in the security and defense sector 2023. https://cutt.ly/hwmn2ail; rogatinska, et al., 2023). thus, on september 4, 2023, the un independent international commission on violations in ukraine, created by the un human rights council, completed its regular visit to the country. at the press conference in kyiv, experts spoke about the discovery of a significant number of violations by the russian armed forces against the civilian population of ukraine, which included intentional murders, illegal deprivation of liberty, torture, rape and other types of sexual crimes, as well as the illegal transfer and deportation of ukrainian citizens, including children. the field office of the international criminal court, which is the largest representative office of the international criminal court (icc) outside the hague, together with the un commission, is actively working in ukraine (chaplynskyi, et al., 2023). in the light of recent international events, which correlate with our research, we would like to draw attention to the state of private legal protection of the right to freedom and personal integrity of ukrainian citizens abroad (using the example of the armed conflict in the gaza strip). analyzing the research of (neethling, 2005), attention is paid to the issue of protection of individual rights in the context of the dogmas of international humanitarian law. international humanitarian law governs the conduct of hostilities and is distinct from the law that governs the decision to use force. whatever the legality of a decision to use force, all parties must comply with international humanitarian law (baldwin, 2023; rubenstein, 2023). a fundamental rule of international humanitarian law during conflict states that all parties must always distinguish between combatants and civilians. civilians and civilian objects should never be the target of an attack. it is not enough to simply state that civilians are not the target of an attack, international humanitarian law requires that parties to a conflict take all possible precautions to minimize harm to civilians and civilian objects. if an attack does not separate combatants from civilians or is expected to cause disproportionate harm to civilians compared to military gain, it is also prohibited. but we can see, on the example of the war in ukraine and hostilities in israel, that the postulates of international humanitarian https://doi.org/10.17561/tahrj.v22.8426 https://cutt.ly/swmn1kzt https://cutt.ly/hwmn2ail svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 13 law are being violated. russian troops are constantly shelling civilian infrastructure and critical objects in ukraine. deliberate killing of israeli civilians and taking of hundreds of hostages by hamas and other armed groups are war crimes, as are the indiscriminate firing of rockets into israeli communities. according to the israeli government, about 1,400 israelis have been killed since october 7. in turn, israel’s armed forces have continuously bombarded the densely populated gaza strip, home to 2.3 million people, causing significant destruction and civilian casualties (united nations, 2023). thus, according to the ministry of foreign affairs of ukraine, there are about half a thousand citizens of ukraine in the gaza strip, and as of october 31, 2023, 25 ukrainians died as a result of hostilities (http://surl.li/neztt). attention should also be paid to the consequences for the mental health of the civilian population in the conflict zone. the prevalence of psychological trauma from the hamas attacks in israel and the airstrikes in gaza is likely to be very high, including among children, who make up nearly half of gaza’s population. we observe a similar situation in ukraine, as early as 2022, the first lady of ukraine noted the need to support the mental health of ukrainians during a speech at the 75th world health assembly (http://surl.li/neztz), and in march 2023, the all-ukrainian mental health program “how are you?” was launched. the focus of the program is how to overcome stress and negative emotions during the war and how to find strength for psychological recovery. therefore, our analysis allows us to state that with the development of integration processes, the rapid development of the individual essence of a person, and the unwillingness to tolerate humiliation and personal restrictions, all these factors compel the legislator to develop new effective legal mechanisms that will protect the individual, reduce violations of personal non-property rights, and comply with european standards (harasym, et al., 2023). in ukraine, in 2012, the most powerful institution for monitoring places of liberty deprivation, the national preventive mechanism, was created, which operates in accordance with the optional protocol to the united nations convention against torture dated 18 december 2002 (ratified by ukraine on july 21, 2006). it provides for regular monitoring of all places of liberty deprivation (pretrial detention centers, internment facilities, psychoneurological hospitals, hospices, prisons, military units, etc.) to prevent cruel treatment of people residing there. its implementation is entrusted to the commissioner for human rights of the verkhovna rada of ukraine, who acts in the format of ‘ombudsman +’ and involves monitoring visits to places of liberty deprivation by the ombudsman’s office staff together with civil activists who participate on a voluntary basis (ukrainian parliament commissioner for human rights, 2023). a person in places of liberty deprivation is highly vulnerable due to his or her limited ability to influence their own will and exercise and protect their rights. isolated from society, such people are entirely dependent on officials who may treat them cruelly and subject them to torture at any time and in any place. such individuals require enhanced protection, taking into account the conditions of their detention. therefore, it is advisable to systematically monitor places of confinement, allowing for an immediate response to https://doi.org/10.17561/tahrj.v22.8426 http://surl.li/neztt http://surl.li/neztz legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 14 violations of the rights of individuals in such places. legal assistance will be provided to individuals in places of liberty deprivation during visits as needed. in addition, monitoring serves a preventive function with regard to officials who are obligated to properly perform their official duties and refrain from any violations. today, in ukraine, there is a problem with conducting monitoring of places of liberty deprivation, which is explained by ongoing combat actions. furthermore, there are challenges related to crossing checkpoints to visit individuals in places of liberty deprivation in areas affected by hostilities (ukraine crisis media center, 2018). particularly deserving attention is the issue of protecting seriously ill convicts, who have their own legal status, as the right to health is one of the most important objects of civil legal relations. systematic monitoring will enable individuals to avail themselves of protective measures, including filing claims in court for: the cessation of actions violating their rights; declaring decisions, actions, or inaction of state authorities or local self-government bodies, as well as their officials, as illegal; the restoration of the situation that existed before the violation; compensation for damages and other means of compensating property damage; and compensation for moral (non-property) harm. summarizing the analysis of the court decisions cited in the article and the violations of human rights recorded by the controlling bodies of ukraine, it should be noted that the fundamental principle the right to freedom and personal integrity was violated in most cases. this, in turn, led to the victims receiving physical and mental injuries, and their search for an effective legal mechanism to restore violated rights, both at the national and international levels. having identified cases of violations of an individual’s right to freedom and personal inviolability, let’s consider private legal methods of protecting them. according to article 20 of the civil code of ukraine, ‘the right to protect oneself is exercised at one’s discretion.’ this means that an individual has the right to use one or several methods of protection simultaneously. every individual has the right to appeal to the court for the protection of their personal non-property right to freedom and personal inviolability (civil code of ukraine, 2003: article 16) with such claims. a). suspension of actions violating rights (cessation of physical or psychological pressure, torture, cruel treatment, physical punishment, cruel or immoral behavior, and other actions). for example, when there is a threat to the lives and health of individuals held in custody, rule no. 39 of the echr regulations should be applied. unfortunately, there are many cases where individuals die due to the lack of timely or quality medical care. in fact, the echr can order the immediate transfer of a person for medical assistance. the transfer of a person to a medical facility does not change the preventive measure but provides a 100% basis for its modification in the future (salova, 2018). b). declaring decisions, actions, or inaction of state authorities, authorities of the autonomous republic of crimea, or local self-government bodies along with their officials, as illegal (for example, in cases of inaction by https://doi.org/10.17561/tahrj.v22.8426 svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 15 child welfare workers having information about cruel, immoral behavior by parents towards children, and other cases). c). restoration of the situation that existed before the violation. for example, in 2017, the constitutional court of ukraine issued decision no. 1-r/2017 in case no. 1-28/2017 regarding the illegal automatic extension of detention. in this case, it was the provision of article 315 of the criminal procedure code of ukraine, which provided for the automatic extension of detention, that was declared unconstitutional. d). compensation for damages and other means of compensating property damage. e). compensation for moral (non-property) harm. these methods of protection fall under civil liability measures applied in cases where an individual has suffered property and/or moral (non-property) harm as a result of a violation of the right to freedom and personal inviolability. the regulatory basis for their application is provided by the articles of chapter 82 of the civil code of ukraine. to claim compensation, the following conditions must be established: the infliction of property and/or harm, unlawful conduct by the harm-causer, a causal link between the harm and the unlawful conduct of the harm-causer, and fault. the presence of material or non-material harm is emphasized by the echr in its decisions (echr, 2012a. wassink v. the netherlands, §38). article 22 of the civil code of ukraine defines damages as losses suffered by a person in connection with the destruction or damage to property, as well as expenses incurred or to be incurred by a person to restore their violated right (actual damages), as well as income that a person could realistically have received under normal circumstances if their right had not been violated (lost profit). among other means of compensating property damage, the legislator includes compensation in kind, meaning the transfer of an item of the same type and quality or the repair of the damaged item (civil code of ukraine, 2003: article 1192). moral harm can consist of: a) physical pain and suffering experienced by an individual as a result of mutilation or other bodily harm; b) emotional suffering experienced by an individual in connection with unlawful behavior towards themselves, their family members, or close relatives; c) emotional suffering experienced by an individual due to the destruction or damage to their property; d) humiliation of an individual’s honor and dignity, as well as the business reputation of a physical or legal person. the application of these methods of protection is explained by the echr in its decisions through the interpretation of article 5 of the convention for the protection of https://doi.org/10.17561/tahrj.v22.8426 legal protection of the right to freedom and personal integrity of the citizens of ukraine (private and public aspect) the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 16 human rights and fundamental freedoms. the echr emphasizes that the compensation amount, which is insignificant or disproportionate to the seriousness of the violation, does not meet the requirements of section 5 of article 5 since it would render the right guaranteed by this provision theoretical and illusory (cumber v. the united kingdom, commission decision; attard v. malta, decision). the payment amount cannot be significantly less than the amount previously awarded by the court in similar cases (echr, 2012a. ganea v. moldova, §30; cristina boicenco v. moldova, §43). the requirement for compensation for property and moral harm can also be asserted by family members and close relatives of a deceased person if it is established that the organs and other anatomical materials of the deceased person were obtained and used by scientific, medical, or educational institutions after their death without authorization (civil code of ukraine, 2003: article 289). 4. conclusions summarizing the results of our research, it should be noted that in accordance with the topic, the purpose and tasks outlined in the introduction of the article by us: the content of the right to freedom and personal integrity was analyzed and its main elements, such as the physical and mental integrity of a person, were determined. it has been established that the rights to freedom and personal integrity of the individual, as well as the right to legal protection are most often violated in the occupied territories of ukraine (luhansk, donetsk, kherson, zaporizhia oblasts and the autonomous republic of crimea) and in areas where active hostilities are taking place (donetsk, kherson, zaporizhia oblasts of ukraine, the gaza strip (israel)); the peculiarities of the normative legal framework of the right to freedom and personal integrity in national and international legislation are determined; an analysis of the practical implementation and protection of the right to freedom and personal integrity of ukrainian citizens was carried out, both in ukraine (through the prism of ukrainian judicial practice) and abroad (through the prism of international judicial practice): attention is focused on the problems and ways to solve them regarding the protection of the right to freedom and personal integrity of ukrainian citizens, primarily caused by russian armed aggression and hostilities in the gaza strip. therefore, ukraine’s experience in providing legal protection of the right to freedom and personal integrity of ukrainian citizens in conditions of external aggression and from the point of view of the doctrine of international humanitarian law may be of interest to the international community. and an effective mechanism for punishing and prosecuting all violators of national and international humanitarian law is vital for restoring the rule of law in the international arena. 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(2023). the rules of war and human rights in the israel-gaza conflict. johns hopkins university. http://surl.li/nezup https://doi.org/10.17561/tahrj.v22.8426 https://doi.org/10.46398/cuestpol.4178.14 https://doi.org/10.46398/cuestpol.4178.14 https://doi.org/10.46398/cuestpol.4178.06 https://doi.org/10.46398/cuestpol.4178.06 https://doi.org/10.46398/cuestpol.4177.45 https://doi.org/10.46398/cuestpol.4075.53 https://doi.org/10.17561/tahrj.v20.7711 https://doi.org/10.17561/tahrj.v20.7711 https://doi.org/10.46398/cuestpol.4072.51 https://doi.org/10.46398/cuestpol.4072.51 http://www.jstor.org/stable/23252295 http://www.jstor.org/stable/23252295 https://doi.org/10.37635/jnalsu.28(1).2021.32-42 https://doi.org/10.37635/jnalsu.28(1).2021.32-42 https://doi.org/10.46398/cuestpol.4072.19 https://doi.org/10.46398/cuestpol.4178.10 https://doi.org/10.46398/cuestpol.4178.10 http://surl.li/nezup svitlana hrynko, ruslan hrynko, maksym levytskyi, artem makovskyi, oleksandr bilovskyi the age of human rights journal, 22 (june 2024), e8426 issn: 2340-9592 doi: 10.17561/tahrj.v22.8426 19 salova, e. 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(2013). criminal procedure code of ukraine. https://zakon.rada.gov.ua/laws/show/4651-17?lang=en#text wikipedia. (2023). polygraph. https://uk.wikipedia.org/wiki/поліграф zmina. (2017). 5 facts about places of detention that you may not have known. https:// zmina.info/columns/5_faktiv_pro_miscjia_nesvobodi_jiaki_vi_mozhlivo_ne_ znali-2/ received: 20th november 2023 accepted: 13th march 2024 https://doi.org/10.17561/tahrj.v22.8426 https://zakon.rada.gov.ua/laws/show/4651-17?lang=en#text https://uk.wikipedia.org/wiki/поліграф https://zmina.info/columns/5_faktiv_pro_miscjia_nesvobodi_jiaki_vi_mozhlivo_ne_znali-2/ https://zmina.info/columns/5_faktiv_pro_miscjia_nesvobodi_jiaki_vi_mozhlivo_ne_znali-2/ https://zmina.info/columns/5_faktiv_pro_miscjia_nesvobodi_jiaki_vi_mozhlivo_ne_znali-2/ legal protection of the right to freedom and personal integrity of the citizens of ukraine (priva abstract 1. introduction 2. methods 3. results 4. conclusions references intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 1 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas milton arrieta-lópez1, roberto certain-ruiz2 abstract: this study explores the philosophical foundations of human rights concerning freedom, equality, and solidarity through the lenses of iusnaturalism, iuspositivism, and ethical constructivism, with a special focus on alasdair macintyre, hanna arendt, carlos santiago nino, and jürgen habermas. it examines macintyre’s revision of iusnaturalism with an aristotelian approach, arendt’s methodological iuspositivism highlighting legal frameworks, nino’s rationality-based human rights theory, and habermas’ emphasis on communicative action and social constructs. this research navigates the dynamic interplay of these theories, offering a multi-dimensional perspective on the evolution, validation, and application of human rights in contemporary society. significantly, it introduces a dialectical perspective on rationality as a dynamic and evolving human attribute, addressing the constructivist necessities in defining human nature amidst prevailing uncertainties. keywords: human rights, ethical constructivism, iusnaturalism, iuspositivism. introduction every research purpose comprises two intrinsic factors: an objective one and a subjective one. the objective factor involves the concrete understanding of the reality inherent in the research problem, bridging theory and practice to modify, reshape, or transform its functioning to address the proposed problem. in the case of this research, the purpose revolves around the analytical and critical foundation of human rights from philosophical perspectives such as iusnaturalism, positivism, and ethical constructivism. 1 lecturer for the passport lecture series (foreign relations and political issues from around the world) at oakton college, illinois, usa. adjunct professor and researcher of the department of law and political sciences of the universidad de la costa. ph.d. student in social and legal sciences at the universidad rey juan carlos. master in human rights, democracy, and globalization from the universitat oberta de catalunya. master in business management and administration from universidad camilo josé cela. specialist in private economic law, universidad nacional de colombia. lawyer by the universidad del norte. categorized associate researcher by the ministry of science, technology, and research of the republic of colombia. orcid: https://orcid.org/0000-0002-3437-5025. email: miltonarrieta@yahoo.com. 2 master student in law from universidad del norte. master student in philosophy for contemporary challengves from the universidat oberta de catalunya. specialist in commercial law from pontificia universidad javeriana. specialist in labor law and social security from universidad del norte. lawyer of the universidad del norte. director of the legal clinic and the conciliation center of the universidad de la costa (cuc). orcid: https://orcid.org/0000-0001-7449-3037. e-mail: rcertainruiz@gmail.com. https://doi.org/10.17561/tahrj.v22.8430 https://orcid.org/0000-0002-3437-5025 mailto:miltonarrieta@yahoo.com https://orcid.org/0000-0001-7449-3037 mailto:rcertainruiz@gmail.com intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 2 the subjective factor of any research purpose plays a fundamental role as it enables materialization. it refers to the motivation that drives the scientist to engage in the analysis, critique, discovery, innovation, or systematization of the subject under study. in the context of this research, the subjective factor emerged from a debate in a free-thinking forum where a participant defended the slogan “human rights are for the right humans” this slogan could be regarded as reactionary, fostering sexist and xenophobic views. the implicit statement in the saying suggests that some human beings may be considered second-class, inferior, or deviant based on their condition or nature. while the widely accepted definition of human rights implies their inherence to all human beings without distinction of nationality, place of residence, gender, ethnic origin, color, religion, language, or any other condition, there is still a lack of recognition and protection of fundamental rights for hundreds of millions of people due to structural violence and inequality, which undermines human dignity. international and regional systems for protecting human rights, as well as internationally organized civil society and national institutions, promote the safeguarding and realization of these rights (noli et al., 2018). however, beyond the importance of achieving pragmatic commitment to human rights from all collectives, it is imperative to analyze and debate their theoretical foundation. otherwise, there would be a lack of arguments to confront those who object to their defense and recognition. as will be discussed later, no argument, such as the content of the slogan “human rights are for the right humans” which reduces the scope of human rights, can be defended theoretically. the slogan “human rights are for the right humans” refers to hate speech that denies the juridical reality implied in the universality of human rights. it has been promoted not only in various forums but also by public officials, as happened in late 2018 with the arrival of central american migrants in mexico. juan manuel gastélum, in his capacity as mayor of tijuana, a city in the state of baja california and a representative of the christian political party national action party, reproduced the slogan above in a public statement rejecting the presence of central american migrants (castro neira, 2019). the former vice president of brazil, hamilton mourão, also reproduced the same slogan in a public declaration with a militaristic and anti-system nature during jair bolsonaro’s presidential campaign in 2017 (lissardy, 2018). likewise, it is often reiterated in various forums and digital media when addressing conflicts, such as occupations of weaker nations by more powerful ones, exoduses of migrants from different countries, controversies involving ethnic, religious, or cultural minorities, and violent conflicts leading to forced displacement or “social cleansing,” referring to selective killings of specific social groups. the slogan “human rights are for the right humans” inherently contains political propaganda that implies the existence of disposable human beings deprived of rights, contributing to discrediting, stigmatizing, and criminalizing vulnerable groups. https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 3 while one can establish a defense of human rights based on their importance or history, mere activism in favor of these rights is not enough. if an idea lacks a solid foundation, no matter how noble it may seem, it would be susceptible to being considered mere opinion. if human rights were merely a beautiful idea, someone could attempt to invalidate them in the face of religious and political fundamentalism, xenophobia, racism, aporophobia, inequality, or any doctrine that advocates intolerance. human rights hold universal juridical value and a sufficiently robust philosophical foundation that prevents them from being reduced to mere opinions. the following section presents the evolution and perspectives of the foundation of human rights. the evolution of human rights at the end of the 18th century, the french revolution gave rise to the declaration of the rights of man and of the citizen, one of the most influential legal documents in the history of law. it was based on the concept of human beings’ natural and inalienable rights and declared certain personal and collective rights of french citizens as universal (arrieta et al., 2018). the declaration consists of seventeen civil and political rights, including freedom, equality before the law, the right to private property, the separation of powers, freedom of conscience, and the presumption of innocence. this declaration established new principles that served as a basis for legitimizing the abolition of the old regime based on absolute monarchy. other historical declarations of rights based on freedom, such as the english bill of rights that banned absolute monarchy in england since the 17th century and the 1926 geneva convention on slavery, form the foundation of the universal declaration of human rights. the universal declaration of human rights (1948) is an international instrument created by representatives from all continents, representing different cultural, traditional, and legal backgrounds. it was adopted by the united nations general assembly as a sublime aspiration for all individuals and peoples, without distinction of any kind. the declaration encompasses rights and freedoms understood as universal for all human beings. moreover, the legal developments surrounding human rights have evolved their scope and nature. currently, there are three generations of human rights whose entitlement extends beyond mere individuality. the first two generations of human rights are found in the international covenant on civil and political rights (1966) and the international covenant on economic, social, and cultural rights (1966). these covenants consecrate and protect both liberty and equality rights. however, on october 8, 2021, the united nations human rights council, composed of 47 states, adopted, with a broad majority through resolution a/hrc/48/l.23, the human right to a clean, healthy, and sustainable environment. this right belongs to the third generation of human rights, with a dual nature of individual https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 4 and collective entitlement, and is grounded in universal solidarity. it addresses global problems specific to the 20th and early 21st centuries, particularly the degradation of natural ecosystems and their disastrous consequences for people’s quality of life (arrietalópez, 2020; markhayeva et al., 2023). while the first generation of human rights was primarily supported by developed western states, the second and third generations of these rights have been significantly driven by developing countries. during the cold war, western powers focused their discourse on human rights on civil and political rights, while the eastern bloc emphasized economic, social, and cultural rights. this led to intense negotiation sessions that resulted in the approval of the two major covenants. the tension primarily lay in the economic models of the cold war era. while civil and political rights require the state to refrain from interfering with individual freedoms, economic, social, and cultural rights necessitate significant state intervention as they require substantial economic investments to ensure their full enjoyment (ohchr, 2009). both covenants function harmoniously, with the international covenant on economic, social, and cultural rights requiring signatory states to avoid interference with individual liberties (cortés, 2020). according to the united nations (2022a), out of the 193 un member states, 173 states have ratified and incorporated the international covenant on civil and political rights (1966) into their domestic legal systems. these are first-generation human rights based on individual liberties, recognizing rights such as the right to life (art. 6), freedom from torture or cruel, inhuman, or degrading treatment (art. 7), freedom from slavery or servitude (art. 8), freedom and personal security (art. 9), freedom of movement (art. 12), access to justice (art. 14), privacy (art. 16), freedom of thought, conscience, and religion (art. 18), freedom of opinion and expression (art. 19), peaceful assembly (art. 21), association (art. 22), family and marriage protection (art. 23), protection of children and nationality (art. 24), political participation (art. 25), and equality before the law (art. 26). the international covenant on economic, social, and cultural rights (1966) has been ratified by 171 states (united nations, 2022b). these are second-generation human rights based on the principle of equality, ensuring access to services, goods, and economic and social circumstances to improve people’s living conditions with dignity. it recognizes rights such as work (art. 6), fair and favorable working conditions (art. 7), the right to form and join trade unions and the right to strike (art. 8), social security (art. 9), an adequate standard of living, including housing and food (art. 11), the enjoyment of the highest attainable standard of physical and mental health (art. 12), education (art. 13), participation in cultural life and the benefits of scientific progress (art. 15). the evolution of human rights toward third-generation rights marks a pivotal shift in international law and ethics, acknowledging the complex interplay of global challenges. these rights, as detailed by macklem (2015), extend beyond traditional liberties and https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 5 equality rights to encompass collective and individual dimensions, such as the human right to peace, sustainable development, a clean and healthy environment, self-determination, data protection, cultural heritage, and access to scientific advancements. the united nations human rights council’s resolution a/hrc/48/l.23/rev.1 in 2021, later endorsed by the un general assembly through resolution ag/76/300 in 2022, signified a historic step by recognizing a healthy environment as a fundamental human right. this development, pivotal in global environmental governance, illustrates the intrinsic link between human welfare and environmental stewardship. these advances in human rights are not isolated but part of a broader shift toward global solidarity and shared responsibility. they address urgent issues like climate change, data privacy, and equitable scientific access, necessitating collaborative, cross-border solutions (arrieta-lópez, 2022). significant declarations, such as the santiago declaration on the human right to peace (2010, 2017, and 2019), further highlight the dynamic evolution of human rights. these declarations encapsulate humanity’s cooperative aspirations, advocating for global peace, a clean and healthy environment, sustainable development, and protection of the common heritage of mankind, crucial for the dignity and survival of future generations. the acknowledgment of third-generation rights by key un bodies signifies more than legal expansion; it marks a transformative shift in human rights conception and application. it reflects a dynamic understanding of rights, adapting to the interconnected challenges of the 21st century. this progressive conception of human rights aligns with the need for an integrated approach to human development and environmental sustainability. it underscores the interconnectedness of human rights protection and planetary stewardship, advocating for a holistic view that considers both individual and collective well-being. the natural law perspective the declaration of the rights of man and the citizen (1789) stipulates that it contains “the natural, inalienable, and sacred rights of man” this document embraces a natural law perspective, which implies that the origin of the rights it contains does not reside in positive law but rather arises from the inherent nature of human beings. legislators create the laws commonly known in a broad sense from public institutions. however, when certain rights are referred to as natural, it implies that such rights are pre-political, meaning they precede the creation of any political community. this one is a rationalist type of natural law defended initially by authors such as hugo grotius, samuel pufendorf, or baruch spinoza and later by classical contractualists like john locke and jean-jacques rousseau (fernández, 1984), which differs from the teleological medieval natural law, according to which natural rights originate in divine reason. https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 6 for example, augustine of hippo (1985), in his work “the city of god” expresses his mistrust in human reason as he argues that the order of the cosmos is based on the reason and will of the deity, from which the eternal law derives. on the other hand, thomas aquinas (1964) coins the term “natural law” to express that while a man uses his reason, he does so to discover the natural law that is revealed by the deity. teleological natural law could serve as a foundation for the slogan “human rights are for right humans” those deemed “human rights” would be those capable of discovering and following the natural reason revealed by the deity, thus leaving room for twisted or second-class humans, those not aligned with the eternal law. in the medieval legal universe, there was room for nobles, clerics, serfs, slaves, and men prevailing over women. it is worth mentioning that women had an inferior role to that of men due to the two images that scholasticism sought to imprint on its model of society. the image of eve, the woman created from adam’s rib, who, by her disobedience, brought about the expulsion from paradise, and the image of mary, representing her virginity and self-sacrifice as a mother and wife, which implied chastity until marriage and sexual duty as an act of procreation stripped of pleasure. teleological natural law could not provide the foundation for the theory of human rights. however, rational natural law represents a break between the deity and natural law, understanding human reason as intrinsic to the nature of individuals, and its use in the human realm serves as the instrument to consider the laws of nature. in contemporary natural law, the work of orrego sánchez (2015) stands out and is considered for the present study. contemporary natural law has been defended by a wide variety of authors like villey (1979), who distinguishes between natural law and natural right, explaining that natural law belongs to the ethical realm, and natural right is composed of the relationship between conventional and natural elements. kalinowsky (1973), through the logic of norms, defends the relationship between morality and law, establishing that the latter consists of an action that must be correct, not an object or thing. alasdair macintyre’s natural law it is worth mentioning the author macintyre (2001), who has gained prominence in the field of theories of justice, advocating for his communitarian perspective that seeks to be grounded in moral values and fundamental social entities, in contrast to the proposals of liberalism and socialism in the field of moral philosophy. this perspective starts from the assumption that the human being is not an independent individual who favors his interests through a social contract and agrees to coexist with others through mainly political and economic agreements. instead, the communitarian proposal involves the human being with the community from which they come, where culture, values, history, and blood ties constitute the foundation of unity and identity for individuals. moreover, communitarianism differs from socialism as it https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 7 considers the possibility of constructing a social ethos without disregarding tradition and its consequences. according to macintyre, the possibility of correcting that tradition arises after the reception of morality acquired by a person from a specific tradition to which they belong. in other words, the praxis of tradition does not merely consist of repeating the past but continuing it, giving way to accumulated customs and practices in the cooperative mode of valuable goods such as raising children, caring for health, cultivating the land, etc., while adapting to the challenges of the present without losing sight that the practice of virtue is affirmed in history. regarding macintyre’s rationalist natural law, it must be said that it is a proposal endowed with innovative elements. it demands the revitalization of ethics from an aristotelian and thomist perspective, contrasting with the rationalist proposals stemming from the enlightenment and nietzsche’s vitalism framed in his genealogy of morals. macintyre proposes a thomistic natural law as a rule of reason based on tradition as the substrate of morality that individuals require to evolve in their purpose (orrego sánchez, 2015). though with nuances, generally, natural law authors are based on two theses. first is the dualist concept of law, in which both natural and positive laws coexist. natural law has universal validity for all peoples and historical periods, consisting of moral norms of justice that exist before positive law. its universality characterizes it and constitutes an objective unity. in contrast, positive law is determined by its relativity, meaning its validity is delimited by historical time and space, and its mutability, its constantly changing nature due to decisions made by political authorities. the second thesis is the preponderance of natural law over positive law. natural law is superior and prevails over any human creation of law. thus, positive law that contradicts natural law cannot exist. the rationalist natural law theory supports human rights as natural rights inherent to human nature. thus, human rights are objective, meaning they are unique and equal for all and preexist the existence of any positive law, including the universal declaration of human rights, the declaration of the rights of man and the citizen, and the bill of rights. human rights are also universal and immutable, implying their validity for all individuals, regardless of time and circumstances. additionally, human rights have always existed and have never changed over time. finally, they are superior to any legal manifestation as they possess the character of justice. therefore, no positive law could contradict them, all rooted in their consubstantiality with reason stemming from human nature. although the natural law tradition holds a prominent place in the history of law, it must be said that it faces several unresolved problems. concerning the characterization of natural law as universal and unique, there are a variety of authors with different proposals, https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 8 granting diverse and even contradictory contents to natural law. natural law has been embraced by authors from all profiles, from monarchists and republicans to liberals and conservatives, each according to their ideological background, granting different scopes that often contradict those of other authors. in summary, the objective determination of natural rights remains unknown. another complex and still undetermined issue is their superiority, implying a metaphysical reality that is impossible to demonstrate through empirical methods. another problem arises when the current rationalist natural law places reason in the nature of man, as there is still no unified theory on human nature, especially when new paradigms emerge, such as transhumanism, suggesting that individuals could surpass their own limits through cybernetic incorporations and eventually separate human consciousness from the body. significant investments are currently aimed at achieving the fusion between humans and machines. elon musk, the co-founder of neuralink, is advancing a project based on the implantation of integrated electronic circuits in the human brain (guillén, 2020) with the purpose of better understanding the human mind, curing diseases, overcoming disabilities, and enhancing the capabilities of the human brain. at present, humans face complex paradigms that even have the potential to increase profound human inequalities by giving rise to a group of new, improved, more competitive, and intelligent beings compared to others who cannot access such technologies. if transhumanism becomes a reality, the current human limits would be surpassed, adding new elements to the still-unknown nature of humanity. the positivist perspective according to this perspective, the only law that exists and can be considered as a product of legal science is the current positive law, which implies that a legal norm involves a technical-scientific process. this presupposition denies the metaphysical existence of natural rights. however, positivism also presents different perspectives and scopes. on the one hand, ideological positivism denies the possibility of law as an aspiration. it considers law obligatory simply because it exists, and citizens must fully obey its provisions even if they have critical moral reservations towards them. according to this type of positivism, there is no unjust law, and any societal claim against power, including the legal system, even if it becomes repressive, would be illegal. this version of positivism has incompatibility problems with the universal declaration of human rights (1948), which limits national legal systems that may exist in the global village. if a valid law in a national state is incompatible with human rights, the declaration allows for the “supreme remedy of rebellion against tyranny and oppression.” https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 9 on the other hand, there is conceptual positivism studied by nino (1980) and hart (2007), which establishes a theory of law in which legal norms are the object of investigation of legal science through legal propositions. according to the conceptual perspective, law should be characterized according to its descriptive properties, which entails that legal propositions must be tested according to empirically verifiable facts. the conceptual approach distinguishes between the “being” and the “ought to be” in law. there is an existing law, and another could be aspired to. this perspective proposes neutrality to avoid evaluating law from a metaphysical approach devoid of methodological support. neutrality is a methodological guarantee that allows for debate, controversy, and validation of the obligatory content of norms. this contrasts natural law and its principles of absolute justice that have served as the basis for dictatorial regimes, such as those based on nazi germany or segregationist ideologies. conceptual positivism acknowledges that law has been influenced in all times and places by social morality and the application of critical moral processes. however, its formulation of neutrality rejects the idea that a legal system must conform to any specific morality to validate its existence. from the conceptual perspective of positivism, human rights are legal rights resulting from formal criteria that obey methodological processes through which a descriptive norm is validated for all individuals that make up the global village without distinctions. the preceding implies a conception that starts from presuppositions to shape valid legal relationships. the methodological positivist approach of hannah arendt according to the universal declaration of human rights (1948), “everyone has the right to a nationality. no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality” (art. 15). nevertheless, arendt (2004) provides an empirically grounded insight in her work “the origins of totalitarianism” based on her experiences under hitler’s regime. the civil wars that arose and unfolded over twenty years of uneasy peace were more bloody and cruel than all preceding wars. they were followed by migrations of groups that, unlike their more fortunate predecessors in religious wars, were not well received anywhere and could not be assimilated anywhere. once they left their country, they were left without shelter; once they left their state, they became stateless; once they were deprived of their human rights, they lacked rights and became the scum of the earth (p. 225). the rights of man, after all, had been defined as “inalienable” because they were supposed to be independent of all governments. still, it turned out that when human beings lacked their own government and had to resort to their minimal rights, there was no authority to protect them or any institution https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 10 that wished to guarantee them. or when, as in the case of minorities, an international body assumed a non-governmental authority, its failure was evident even before its measures were fully implemented (p. 243). arendt (2004) narrates the vicissitudes and sufferings of stateless minorities during the two world wars, who were displaced and expelled from their nation-states, experiencing the absence of a political and legal framework to guarantee the protection of their most basic human rights. the declaration of the rights of man and the citizen, expressing certain rights as natural and inalienable, is, in any case, inapplicable if nationstates do not recognize and incorporate them into their domestic legal systems. therefore, human rights cannot be claimed within a metaphysical right; instead, they must be verified, systematized, and composed in existing legal frameworks that allow for their safeguard against the enormous injustices suffered by the most vulnerable through a methodological process that validates legal norms where processes of rationalization regarding their contents and scopes are evident. methodological positivism is a legal stream that argues that the rights and obligations of individuals are created by human will and established in positive laws and norms. according to methodological positivism, human rights are rights recognized and protected by the laws of a particular legal system, as opposed to natural or inalienable rights. in her principal work, “the origins of totalitarianism,” arendt analyzes totalitarian regimes and the loss of human rights during those historical periods. through her analysis, arendt emphasizes the importance of legal institutions and the rule of law in protecting the fundamental rights of individuals. arendt asserts that human rights are based on a legal foundation, as they require a political and legal system that recognizes and protects them. in this sense, her perspective aligns with methodological positivism. however, it is essential to note that arendt emphasizes the importance of rights as safeguards against the state’s power and institutions. for her, human rights are not merely legal conventions but possess a deeper meaning and significance as conditions for individuals’ dignified and free existence in the public sphere. the philosophical foundation of human rights: distinction between social morality, positive morality, and rational morality the theories that underpin human rights lie within the realm of moral philosophy, which necessitates reasoning about morality and theories of justice. to determine what may or may not be moral, it is imperative to distinguish between social morality and rational morality, for which the studies of martínez zorrilla (2014) and pérez triviño (2016) are taken into consideration. social morality refers to the ideas, opinions, or moral principles shared by most members of a society during a specific period of time. this type of morality is linked to https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 11 a specific society’s economic, social, and cultural context and is also delimited by the historical context of the moment. social morality cannot be universal and tends to mutate according to temporal and cultural circumstances. in ancient greece, rome, and the middle ages, slavery enjoyed moral acceptance, but since the renaissance and the enlightenment, it began to be opposed and is now considered entirely immoral. social morality also tends to establish differences within the same period of time. when social morality is found in contemporary phenomena, it is referred to as positive morality (laporta, 1997). in other words, positive morality is the current social morality. for example, currently, in the united states, access to, possession of, and carrying of lethal weapons by individuals is morally accepted by the majority of americans, while in latin america and the european union, it is morally accepted that only police and military authorities can access and carry such weapons. topics such as abortion, the death penalty, women’s freedom and access to decent work, religious freedom, and secularism enjoy diverse positive moral considerations in different countries and regions. on the other hand, in rational morality, judgments or moral principles are the product of profound analysis. rational morality requires the development of a foundation based on critical reflection with valid arguments, i.e., free from cognitive biases and verifiable. for instance, when making a moral judgment about racism, xenophobia, or homophobia, a process of rational morality reveals that these forms of intolerance have always, at all times and in all places, been unjust, as human beings ontologically possess intrinsic and inalienable value regardless of their race, origin, or sexual orientation, even without regard to times or contexts. human dignity is ontological because it corresponds to the subject by the mere fact of being human; thus, dignity resides in the being, not in the capacity or actions of the being. therefore, all human beings without any distinction deserve respect and consideration. human dignity is founded on its specificity and transcends any metaphysical or abstract prescription, as it encompasses modes of interrelation, treatment, and deference among individuals. all individuals possess human rights simply by being human. according to ethical constructivism, these are moral rights because they stem from critical reflection, characteristic of rational morality. as can be observed, universal validity can be granted to human rights only within the domain of rational morality. the ethical constructivist perspective versus moral relativism in philosophy of law ethical constructivism provides a theory of morality while dispensing with the considerable metaphysical demands underpinning other human rights foundation approaches. it also addresses the basis for the recognition and scope of human rights through rational discussion under the lens of moral philosophy, thereby avoiding the classic problem of justification of rights presented by various positivist perspectives. https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 12 while the theory of moral rights has been defended in the anglo-saxon world by prominent authors like john rawls, carlos santiago nino offers a robust theory on the foundation and scope of human rights as moral rights that, by virtue of their foundation and scope, must be recognized by existing legal systems. nino’s theory emerges as a reaction to rationalistic natural law and moral relativism. concerning moral relativism, as discussed earlier with respect to natural law, it must be noted that moral relativism denies the possibility of universal human rights. however, moral relativism itself is ambiguous. firstly, its distributive approach implies that if societies are isolated, each possesses its own form of morality, thereby rendering it impossible to establish a morality based on shared values. secondly, its attributive approach suggests that diverse moral systems exist even if societies are close or in confrontation. the distributive approach has served as a foundation for regimes that pursue moral absolutism, as some moral systems are deemed superior to others. this is because, with different moralities, it is possible to structure or order them axiologically, with one ultimately imposing itself as the sole valid system. on the other hand, the attributive approach also presents problems. for instance, if nation a engages in violent or repressive social practices that threaten the survival of nation b, moral relativism considers a’s practices equally valid as those of b. ethical constructivism tackles the notion that what is just or right depends on metaphysical or external components like natural rights inherent in human nature. it also challenges moral relativism, which essentially denies the possibility of a theory of moral objectivity. the ethical constructivist theory does not belong to legal theories but rather to philosophical ones that serve as the foundation for human rights. therefore, the moral validity of human rights will depend solely on the consistency and strength of the reasons presented in rational argumentation. it is necessary, however, to clarify a point about the rationality of ethical constructivist theories and rationalistic natural law. in natural law, human rights are pre-state and superior natural rights, as they are inherent in human nature. in contrast, according to ethical constructivism, human rights are moral rights because they result from reasoning validated by logic and moral rationality. the ethical constructivism of carlos santiago nino to approach santiago nino’s constructivist theory were, considered the works of nino (1989), martínez zorrilla (2014), and alexy (2003). first and foremost, it is essential to emphasize that, according to nino’s proposal, human rights in all their categories or generations derive from the production of human rationality, with reason being a constitutive component of human beings. https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 13 consequently, the assertion that human rights must be obeyed and safeguarded is based on a moral discourse derived from rational argumentation, understanding the capacity of human beings to engage in moral discourse as an inherent faculty of their humanity. according to nino, human beings can reason and establish a moral discourse; however, the discourse must be endowed with autonomy to reach a consensus as a synthesis of the discourse. this implies that the discourse must occur without impositions, obedience to any authority, divine or human, without threats, favors, lies, tricks, or schemes. nino proposes a method of moral objectivity, wherein a moral precept will be valid if accepted by individuals who are informed about relevant events, impartial, and rational. however, for a moral precept to be valid, it must meet the following formal circumstances: a) publicity. the precept cannot be derived from religious or personal revelations or be esoteric or hidden. it must be endowed with publicity and be known by all individuals. b) generality. a moral precept can serve as a norm of behavior if it does not derive from specific or individual situations; therefore, it must apply to generic situations. c) supervenience. the generic situations that determine moral precepts must have factual value, i.e., they must be facts that can be verified by all individuals, making all generic situations equally morally relevant. d) universality. the moral precept must be applicable to all cases in the same manner, provided they share equivalent generic situations. e) ultimate reasons. behaviors can only be justified if moral precepts are validated through moral reasons. while the formal circumstances are essential for the validity of a moral precept, according to nino, impartiality is also required as a substantive circumstance. this material implication regarding the involved parties in moral discourse means that they must equally consider the interests of all affected parties, and their own or third-party interests cannot outweigh those of others. alexy (2003) considers the proposal of impartiality as a substantive requirement as an achievement in nino’s theory, as the formal criteria are insufficient to reach a consensus on moral matters. he also deems it comparable to rawls’ thought experiment, the original position. according to nino, the formal and material circumstances described above would guarantee the necessary rationality to justify certain moral precepts, which lead to the following fundamental precepts: 1. the precept of personal autonomy. the state must guarantee and never limit it, as should public and private entities. it concerns the free choice and personal realization according to life plans that individuals have set for https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 14 themselves. however, there are limits, as the pursuit of a life plan cannot infringe upon the life plans of others. nino also believes that the state and the community formed by territorial entities must commit to more than just ensuring free choice because, without necessary conditions, individuals could not realize their life plans. 2. the precept of hedonism. it complements personal autonomy; pleasure and the absence of pain are prima facie morally valuable and legitimate. according to alexy (2003), nino incidentally incorporated the hedonistic principle. ensuring people’s well-being should also be an obligation of the state. 3. the preceptof inviolability of the person. it constitutes a double prohibition. first, it prohibits depriving individuals of valued goods specified in the first two principles to benefit other individuals, entities, or metaphysical values, including the people, community, or religion. the second prohibition is of a socio-state nature, as the principle of personal autonomy would have limits in the impairment of others’ autonomy. in summary, actions that violate human rights are prohibited. 4. the precept of human dignity. the will and desires of individuals must be highly regarded and safeguarded by law and the state, concerning both benefits and burdens. individuals should be judged by their voluntary actions and never by particulars like race, creed, gender, social, economic, or cultural status, origin, or any other condition or characteristic. this extends to the state, which must guarantee the human dignity of individuals against any form of discrimination. the system proposed by nino implies that moral discourse constitutes the foundation of all morality; therefore, it is a process of rational or critical morality that begins with four formal circumstances: publicity, generality, supervenience, universality, and ultimate reasons, as well as impartiality as a substantive circumstance. by grounding moral discourse in formal and substantive circumstances, the four moral precepts previously explained are justified: personal autonomy, hedonism, inviolability of the person, and human dignity. from these moral precepts or principles, human rights stem. these rights would not be natural, i.e., products of a metaphysical, pre-state, and superior reality determined by human nature, but rather moral, i.e., products of a rational and critical moral discourse. therefore, their justification is derived from the process of critical morality, not originating from a natural law. the moral precepts then provide an argumentative justification for recognizing and protecting human rights. interestingly, nino offers a non-exhaustive list of rights that includes the first and second generation’s liberty and equality human rights. for instance, in his work “ethics and human rights” (1989), nino agrees with hart regarding education, which is considered an inalienable right that not only describes conduct but also includes a set of duties. nino explains, through the principle https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 15 of personal autonomy, that education is essential for choosing and materializing life plans that can lead to personal fulfillment. however, he believes that it cannot be any type of education but one that, in addition to critically transmitting conditions of intersubjective morality, offers means for conscious and autonomous choices in life projects without any dogmatic demands. the process of critical morality allows for paternalistic measures by the state, such as in the case of education. nino agrees with bruce ackerman’s critique of milton friedman, who opposes state education, essentially opening the possibility for parents to exercise moral tyranny over their children. second-generation human rights are essentially equality rights and require state intervention for their realization. nino establishes that paternalistic measures are entirely pertinent as long as they align with the principle of personal autonomy, meaning they do not undermine the freedom to choose one’s way of life and personal fulfillment. fundation of human rights from jürgen habermas’ theory of communicative action max weber conceives action as behavior with subjective meaning for the actor or actors involved, guided by conscious intention. he identifies four types of action: “the four types of action that weber distinguishes are instrumental-rational action, valuerational action, affective action, and traditional action” (weber, 1978, p. 26). on the other hand, habermas (1999a) understands action as a process in the social system and is carried out through communication oriented towards achieving discursively determined goals or objectives. accordingly, the action unfolds in the context of a communicative situation in which free and equal individuals interact and seek to coordinate their actions to achieve a common goal, grounding their relationship in communicative rationality. this process involves the construction of consensus about meaning and action, achieved through dialogue and rational argumentation (solares, 2015). regarding this topic, morales states: the instrumental goal of the unilateral cognitive reason of teleological reason is replaced by a rationality that, founded on understanding, makes possible the creation of dialogue where universal principles of respect for cultural coexistence, truthfulness of argumentation, and freedom of practical action of the subject responding to communally recognized norms prevail (morales, 1999, p. 68). now, habermas (1999a) conceives the types of action differently from how weber presents them. for him, action can be teleological or strategic, in which individuals act to achieve specific goals rationally and efficiently, based on means and ends instrumentally; normative action, which refers to action based on the validity of norms and values shared by a community to achieve common social goals, with the validity of norms grounded in acceptance by the community and their legitimacy in public discussion and consensus; dramaturgical action, which focuses on the expression of identity and mutual recognition https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 16 between individuals as complex beings with unique identities; and finally, communicative action, which habermas explains as follows: finally, the concept of communicative action refers to the interaction of at least two language and action-capable subjects who (whether by verbal or extraverbal means) establish an interpersonal relationship. the actors seek to understand a situation of action to coordinate their plans of action and thus their actions in mutual agreement. the central concept here, interpretation, refers primarily to the negotiation of situation definitions capable of achieving consensus. in this model of action, language occupies a prominent position, as we will see (habermas, 1999a, p. 124). thus, the theory of communicative action focuses on society and communication. this theory is based on two main premises: first, that communication is a fundamental form of social action, and second, that society is composed of the constant interaction of individuals through communication. communication is a cooperative activity aimed at mutual understanding among free and equal individuals. it is not simply an exchange of information but a shared quest for truth, justice, and solidarity, which is essential for constructing society and culture. therefore, habermas asserts, “communication is action, in the sense that participants refer to each other’s acts and coordinate their actions, while at the same time coordinating with one another by virtue of the understanding achieved about content” (habermas, 1987, p. 85). the importance of shared understanding as a necessary condition for coordinated action among participants in habermas’ proposal is emphasized. thus, communication becomes a form of coordination based on mutual reference to the actions of others, grounded in a shared understanding of the content of the action. in this sense, understanding is a fundamental requirement for coordinating actions, as it allows actors to adjust their actions based on mutual knowledge of the world. therefore, communicative action becomes a central process for the construction of shared norms and values, where actors, based on communicative rationality, as habermas (1994) argues, must be able to argue for and justify their positions and be willing to listen to and consider the positions of others. habermas emphasizes the need to justify maxims, action strategies, and behavioral rules discursively. he argues that the distinction between autonomous and heteronomous actions is revolutionary regarding general moral consciousness and that justification can only be achieved through moral discourse. these discourses seek the impartial regulation of possible conflicts and must be free from egocentrism or ethnocentrism. for habermas, there is a temporal perspective that expects reason and knowledge to contribute to constructing a more just society. in this future, communication between human beings should not be limited by the oppressive power of the state. however, rational citizens should act in society freely and in the political sphere, recognizing the fundamental importance of communication. according to habermas, this implies a discourse that allows authentic dialogue among individuals (herrera, et al., 2014; martin fiorino et al., 2022). https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 17 based on this paradigm, habermas (1974) has developed a critical theory of society that starts from the idea that the norms and values governing social action must result from a democratic and participatory process in which citizens can freely express their opinions and perspectives. in this context, he argues that human rights are a historical and social product that has developed throughout history as societies have become more complex and new forms of oppression and domination have emerged. thus, human rights stand as a means of protecting the freedom and dignity of human beings in the face of power structures exercised in modern societies. habermas distinguishes between two types of human rights: fundamental rights and social rights. fundamental rights protect the freedom and dignity of individuals from interference by the state and other agents of power. these rights include freedom of expression, freedom of association, the right to privacy, the right to a fair trial, and the right to equality before the law. habermas considers these rights as the foundation of any democratic and just society. on the other hand, social rights refer to those rights that guarantee individuals’ access to the material and cultural conditions that allow them to lead a dignified and fulfilling life. these rights include the right to education, the right to work, the right to housing, and the right to health. habermas considers these rights as fundamental for realizing equal opportunities and constructing a just and solidary society. it follows from the above that human rights cannot be solely based on positive law, nor can they be solely based on universal principles and values. they imply a moral and juridical-procedural requirement that specific actions be accepted or rejected, permitted or prohibited by other social actors and that these actors must respect the norms underpinning these rights. when it is stated that human rights cannot be defined or established solely based on positive law, it refers to the fact that positive law is a human creation and is thus subject to each society’s historical, cultural, and political constraints. this implies that human rights must be based on universal and rational ethical principles that transcend each society’s cultural and historical particularities and should not be reduced to mere conventions or social agreements. it is not the function of political or economic powers to establish human rights by their will; instead, these powers must protect and guarantee them. likewise, when it is stated that human rights cannot be grounded solely on universal principles and values as proposed by natural law, it refers to the fact that principles and values do not have intrinsic existence but are the result of a social construction process that has involved different groups and social sectors in a historical and cultural process of social construction, which is in constant evolution and change, taking into account different perspectives and values, seeking to build a consensus based on universal principles of equality, freedom, and justice. therefore, according to habermas, human rights have a normative and practical foundation based on human dignity. they are a necessary consequence of how human beings interact with each other. in this sense, they are based on the idea that every person is a rights-bearing subject, that is, a human being with the right to be treated with dignity https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 18 and respect (hermosillo, 2013). they constitute an expression of the capacity of human beings to act communicatively and reach agreements on shared norms and values. thus, the most important implication of this conception of human rights is that human dignity must be protected at all times and under all circumstances. human dignity refers to the intrinsic and inalienable value of every human being, regardless of their origin, race, gender, religion, or any other condition. this value is based on the human capacity for reason and communication as essential elements. human dignity is the basis of human rights, considering that the primary purpose of human rights is to protect and promote the dignity of all individuals, as it is a value shared by all cultures and societies and recognized by all individuals as inherently valuable. this means that human rights must be respected in any situation, regardless of the political, social, or economic situation. furthermore, human rights are universal and apply to all individuals, regardless of race, gender, sexual orientation, or any other characteristic. it follows that human rights must be grounded in a consensus resulting from a discursive process that allows all individuals to participate in the discussion about their scope and meaning. this procedure for consensus-building based on dignity and freedom inherent to every human being has essential implications for the validity and legitimacy of human rights. habermas’ discursive procedure refers to an approach to political decision-making based on the idea that the validity and legitimacy of norms and rights depend on a process of rational and critical argumentation in which citizens and political actors engage in free and open dialogue to reach a consensus on what is just and proper. this procedure is based on the idea that democracy should be understood as a communicative process in which citizens can express their interests, needs, and values in an inclusive and participatory public space. in this context, the public sphere is a space where citizens can freely discuss matters of public interest and reach consensus through dialogue and rational argumentation. in this space, citizens can express their opinions and arguments freely and openly and have the possibility to influence political decision-making. this is only possible in a democratic society where citizens can act autonomously and freely without interference from authoritarian or coercive power structures. this means citizens have the right to participate in the political process and decision-making (habermas, 2020). in this regard, the discursive procedure is crucial for defining human rights and grounding their validity and legitimacy, as they must be formulated and evaluated through a deliberation process that allows for citizens’ participation and their commitment to democratic values. therefore, they are universal because they can be demanded by any human being, regardless of origin, gender, race, or culture. in this deliberative process, citizenship must work to identify the rights essential to guarantee a just and equitable society (habermas, 1999b). this implies a commitment to equality and justice and the willingness to reach a consensus on the fundamental rights that society must protect. once these rights have been identified, it is the responsibility of https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 19 the government and other social institutions to ensure that they are protected and respected in society. however, citizenship also has a vital role in monitoring and monitoring the implementation of human rights and fighting against any violations. based on the above, both santiago nino and jürgen habermas share the idea that human rights are fundamental rights that must be recognized for all individuals simply by being human, and that these rights are closely linked to human dignity and social justice. as we have noted, starting from the fundamental understanding of human rights, habermas’ reflection focuses on the concept of subjective rights that establish the limits within which an individual is authorized to assert their will and define equal freedoms of action for all individuals, whether considered as rights bearers or legal persons. in other words, habermas considers subjective rights as fundamental in promoting equal opportunities and individual freedom and a necessary component for any legitimate and just social system (habermas, 1998). from the above, it can be understood that while nino emphasizes the importance of the universality of human rights, habermas highlights the role of communication and deliberation in defining human rights in a democratic society. for habermas, human rights are a social construction that arises from citizen participation in dialogue and deliberation. therefore, the habermasian consensus should not be confused with that of nino; as for habermas, human rights must be grounded in rational consensus, that is, a consensus based on public discussion and the exchange of rational arguments constructed publicly and deliberatively. conclusions alasdair macintyre’s perspective on iusnaturalism brings a novel dimension to the classical dualist thesis. by integrating an aristotelian monist approach, macintyre reinterprets natural law, aligning it more closely with practical reasoning and virtue ethics. this approach challenges the conventional narrative, presenting a unified, rather than dualistic, understanding of natural law. he posits that human rights and ethical values are not merely abstract concepts but are deeply rooted in social practices and community life. however, macintyre’s revision does not fully resolve the inherent complexities within iusnaturalism. the varied interpretations of natural law by different authors, ranging from monarchists to liberals, lead to a diverse and often contradictory understanding of natural rights. this pluralism underscores a fundamental issue within iusnaturalism: the lack of a universally agreed-upon set of natural rights. macintyre’s critique opens the dialogue for a deeper exploration of these disparate views within the context of a unified theory. a critical point in macintyre’s analysis is the question of the superiority and empirical validation of natural law. he highlights the metaphysical challenge faced by iusnaturalism: the difficulty in empirically demonstrating the existence of a higher, natural order of law. this underscores the ongoing debate about the metaphysical basis of natural rights and their relevance in contemporary legal and ethical discussions. https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 20 hannah arendt’s perspective on methodological iuspositivism offers a unique lens to understand human rights. she emphasizes that human rights are a product of juridical processes and formal criteria that universally apply to all individuals, based on the concept of human dignity. arendt’s approach underscores the importance of legal frameworks and methodologies in defining and safeguarding human rights, moving away from metaphysical justifications to a more grounded, procedural understanding. arendt’s narrative on the plight of stateless minorities during the world wars highlights the limitations of natural law in protecting human rights. she illustrates how the absence of national legal frameworks led to the erosion of basic human rights for these groups. this historical context underlines the necessity of embedding human rights within national legal systems, thereby making the protection of these rights more tangible and enforceable. her assertion that human rights cannot rely on metaphysical claims but must be grounded in existing legal systems is pivotal. arendt advocates for a methodological process that validates human rights through rationalization, systematization, and legal codification. this approach ensures that human rights are not abstract ideals but are effectively integrated into the legal fabric of societies, providing a practical safeguard against injustices. habermas’ theory of communicative action focuses on society and communication, asserting that communication is a fundamental form of social action. it is based on the idea that communication seeks to achieve mutual understanding among free and equal individuals. it is not merely about exchanging information but seeking truth, justice, and solidarity. communication becomes a central process for constructing shared norms and values grounded in communicative rationality. habermas argues that human rights result from a democratic and participatory process in which citizens can freely express their opinions and perspectives. he distinguishes between fundamental rights, which protect the freedom and dignity of individuals against the power of the state, and social rights, which guarantee access to material and cultural conditions for a dignified life. human rights are founded on human dignity and must be protected at all times and in all circumstances. methodologically, habermas proposes a discursive procedure for consensusbuilding in which citizens engage in free and open dialogue to reach an agreement on what is just and proper. this democratic approach is based on the notion that the validity and legitimacy of norms and rights depend on rational and critical argumentation. in contrast to nino, habermas argues that intersubjective consensus is insufficient to adequately ground human rights; their foundation requires public and deliberative argumentation that discusses and evaluates the reasons for and against their recognition. for habermas, there is a need to ground human rights in rational consensus based on public discussion and the exchange of rational arguments. this approach is more suitable for substantiating human rights as it relies on reason rather than mere social agreement. https://doi.org/10.17561/tahrj.v22.8430 milton arrieta-lópez, roberto certain-ruiz the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 21 habermas asserts that human beings are communicative beings whose capacity for language and action develops through social interactions. in his theory of moral and cognitive development, he argues that acquiring knowledge and ethical values occurs through communication with others and participation in social and cultural structures. in this regard, habermas emphasizes that the nature of human beings is not predetermined but shaped and constructed through social relationships and material conditions of the environment. social structures, institutions, norms, and systems of values influence how individuals relate to each other and construct themselves as human beings. it is essential to highlight that habermas also emphasizes the importance of autonomy and reflective capacity for individuals to question and transform existing social conditions. while material and social circumstances may influence the formation of human nature, habermas maintains that individuals can critically reflect on these circumstances and seek changes that enable greater emancipation and human development. it is considered that carlos santiago nino’s foundation, based on critical rationality, solidly establishes the preponderance regarding the recognition and safeguarding of human rights. although nino focuses on civil and political rights, he also successfully substantiates economic, social, and cultural rights. however, nino’s early death prevented us from knowing the evolution of his theory. therefore, we will forever have an initial nino who did not have the opportunity to encounter the new discussions, perspectives, and advancements regarding human dignity in the first two decades of the 21st century, the last moral precept proposed by nino. we can confidently affirm that nino’s theory also substantiates third-generation human rights, with its particular characteristic of the dual nature of entitlement. this is because the precept of human dignity has both an individual scope and a social one, leading to the universal ascription of human dignity to all individuals. it is necessary to emphasize that while nino’s theory substantiates human rights, it does not do so from a natural law perspective. in other words, nino’s theory is not of an original nature but rather derived, as it is not implicitly rooted in a metaphysical, pre-state, and superior reality determined by human nature. instead, it is grounded in rational discourse. it comprises a critical moral analysis from which human rights are derived. nonetheless, nino considers rationality an inherent part of human nature; for nino, rationality is inherent in human beings. however, the nature of the human being remains undefined, as there is no total or unified theory regarding human nature, especially considering that different disciplines in the social and natural sciences propose various hypotheses and theories about human nature. thus, to address what the human being is and can be regarding their moral rights, social constructivism is required in nino’s ethical constructivism, that allows for a better explanation of the limits and scope of human rationality. https://doi.org/10.17561/tahrj.v22.8430 intersecting visions of justice: the philosophical tapestry of human rights and human nature in the thoughts of macintyre, arendt, nino, and habermas the age of human rights journal, 22 (june 2024), e8430 issn: 2340-9592 doi: 10.17561/tahrj.v22.8430 22 we believe that rationality does not reside in an unfathomable human nature but rather in a dialectical process that allows human beings to construct and evolve. in this sense, human beings do not possess a predetermined nature since they are the product of a constant social construction that enables them to interact with reality and life’s challenges. as a social being, the human does not possess a collective identity. instead, their identity and consciousness emerge from an actual social construct resulting from their societal life. the subjectivity of the human being is built as they interact with different social entities such as the family, the classroom, the workplace, sports activities, etc. additionally, culture and positive moral models within a specific community play an important role. when we assert that human rights in all their categories or generations derive from the production of human rationality, we consider that human reason is constantly constructed within the realm of perfectibility. in this sense, the human being is not and will not be a finished being from which a complete or determined nature can be derived. instead, the human being and humanity are in a constant construction process, allowing for evolution and adaptation to future challenges. consequently, human beings and humanity owe themselves a moral duty of reflection so that moral discourse can be improved. moreover, individuals must be willing to modify their moral norms if other better-founded perspectives are demonstrated. therefore, we believe that nino’s argumentative process, which substantiates human rights, arises from four formal circumstances and one material circumstance, from which the four moral precepts that derive into human rights emerge. this process is determined by a rational procedure developed by imperfect individuals capable of constructing and improving themselves. funding this paper is the result of research on the evolution and foundation of human rights in the framework of the research project: interdisciplinary approach in the framework of politics, law and university education, supervised by the universidad de la costa. this research project contributes to the law, politics and society group, categorized a1 by the ministry of science, technology and innovation of the republic of 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(1979). compendio de filosofía del derecho. pamplona, universidad de navarra. received: 21st november 2023 accepted: 31st january 2024 https://doi.org/10.17561/tahrj.v22.8430 https://doi.org/10.22201/fcpys.2448492xe.1996.163.49649 https://www.un.org/es/about-us/universal-declaration-of-human-rights https://www.un.org/es/about-us/universal-declaration-of-human-rights https://treaties.un.org/pages/viewdetails.aspx?chapter=4&clang=_en&mtdsg_no=iv-4&src=ind https://treaties.un.org/pages/viewdetails.aspx?chapter=4&clang=_en&mtdsg_no=iv-4&src=ind https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-3&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-3&chapter=4&clang=_en intersecting visions of justice: the philosophical tapestry of human rights and human nature in t abstract introduction the evolution of human rights the natural law perspective alasdair macintyre’s natural law the positivist perspective the methodological positivist approach of hannah arendt the philosophical foundation of human rights: distinction between social morality, positive morali the ethical constructivist perspective versus moral relativism in philosophy of law the ethical constructivism of carlos santiago nino fundation of human rights from jürgen habermas’ theory of communicative action conclusions funding references termination of employment based on employee's hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 1 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria mary-ann onoshioke ajayi1 david tarh-akong eyongndi2 abstract: this article adopts desk-based methodology in interrogating the issue of hiv related employment termination in nigeria, focusing on the national industrial court of nigeria (nicn) decision in akinola v. ocean marine solutions ltd. it examined international and domestic legal frameworks on the subject, the human rights affected by such termination, the impact of the decision taken on the protection of the human cum employment rights of employees living with hiv/aids and the response of the nicn to the quagmire. it observed that the quantum of damages awarded by the nicn cannot achieve deterrence. it recommends how to eradicate hiv related employment termination in nigeria. keywords: employment, discrimination, hiv/aids, human rights, nicn, nigeria. summary: 1. introduction. 2. adewunmi akinola v. ocean marine solutions ltd. in perspective. 2.1. defendant ’s argument before the court. 2.2. claimant’s argument before the court. 2.3. decision of the court. 3. hiv/aids discriminations as a human rights violation. 4. matters arising from the decision in adewunmi akinola v. ocean marine solutions ltd. 5. conclusion. 6. recommendations. 1. introduction hiv/aids is a dreaded disease hence, persons infected with or affected by it are often discriminated against in the society based on their perceived or actual status3. onyemelukwe4 opined that when it comes to employment, employers are reluctant if not adamant to employ persons who are so infected or affected even when their status may not affect their competency or ability to perform or carry out the work and those who got infected after employment are often targeted for termination5. aguwa, 1 phd, associate professor. college of law, bowen university, iwo, osun state, nigeria. email: maryann. ajayi@bowen.edu.ng 2 assistant professor. college of law, bowen university, iwo, osun state, nigeria. email: david.eyongndi@ bowen.edu.ng 3 ogunyemi, a.o., adubiaro, f. m., oluwole, e. o., somefun, e. o., and olubodun, t., “stigma, discrimination and non-disclosure among young people living with hiv in lagos, nigeria” (2022) 41(106) pan african medical journal 1-12; dahlui m, azahar n, bulgiba, a., zaki, r., oche o. m., adekunjo f. o,“hiv/aids related stigma and discrimination against plwha in nigerian population”plos one(2015) 10(12): e0143749. https://doi.org/10.1371/journal.pone.0143749 4 onyemelukwe, c, “discrimination on the basis of hiv status: an analysis of recent developments in nigerian law and jurisprudence” (2017) 17(3) international journal of discrimination and the law 160-179. 5 nwana, c.r. (2005) ‘social consequences of hiv/aids: stigma and discrimination in the workplace in nigeria’ being a paper presented at the xxv international population conference held at the vinci convention centre, tours, france, 18 – 23, 1-20. http://10.17561/tahrj.v20.7754 mailto:maryann.ajayi@bowen.edu.ng mailto:maryann.ajayi@bowen.edu.ng mailto:david.eyongndi@bowen.edu.ng mailto:david.eyongndi@bowen.edu.ng https://doi.org/10.1371/journal.pone.0143749 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 2 esonwanne, onyia and modebe6 posited that being hiv positive attracts natural unfounded apprehension, leading to stigmatisation and discrimination. pursuant to the foregoing, eyongndi7 has asserted that the probability of persons who are hiv positive securing employment or remaining in their employment is relatively low as they are often victims of hiv related employment. termination or discrimination8. where they are infected after been employed, instead of being treated equally by their employer and co-employees, they are rather stigmatised, discriminated against and treated as outcast due to their status9. in order to stem the tides of stigmatisation and employment discrimination based on an employee’s hiv status, nigeria government through its legislature, enacted the hiv and aids (anti-discrimination) act, 2014 and issued the national guidelines for hiv counselling and testing. the guidelines regulates employers’ right under section 8(1) of the labour act10, this permits an employer to carry out at his expense, medical test on the employee(s). despite these statutes, some employers have persisted in the inhumane and inhuman practices of subjecting employees to hiv testing without disclosing the nature of the test to be carried out on such employees; not seeking and obtaining their informed consent before carrying out such test or withholding the result from them while making it known to co-employees and ultimately, terminating their employment on account of their hiv positive status11. all these are done without regards to the various fundamental human rights (such as right to dignity of human person, privacy and freedom from discrimination) of the employee and the need to protect and promote same in accordance with domestic and international human rights instruments12. where an employee’s right is violated due to his13 perceived or actual hiv status, the 6 agua e, esonwanne o. f, onyia s. u, and modebe i, “assessment of workplace stigma and discrimination among people living with hiv/aids attending antiretroviral clinics in health institutions in enugu, south east nigeria”(2015) 65(1) the west indian medical journal,1-21. 7 eyongndi, d.t., ‘an appraisal of hiv and aids (anti-discrimination) act, 2014 and the tides of employment discrimination in nigeria’ (2020) 8(1) africa nazarene university law journal, 11-127. 8 odimegwu, c. o. akinyemi, j. o. and alabi, o.o., “hiv-stigma in nigeria: review of research studies, policies, and programmes” https://www.hindawi.com/journals/art/2017/5812650/ accessed 20 september 2022. 9 dakas, c.j.d. (2010) ‘hiv/aids and workplace discrimination in nigeria: prejudice, stigmatization and legal shenanigans’ available at: http://www.ialsnet.org/meetings/labour/papers/dakas-nigeria.pdf accessed 8 december 2021. 10 labour act cap. l1 laws of the federation of nigeria (lfn) 2004. 11 ibid. section 8(1). 12 see for instance the 1999 constitution of the federal republic of nigeria cap. c23 laws of the federation of nigeria 2004; hiv and aids (anti-discrimination) act, 2014; african charter on human and peoples right 1988, african charter on human and peoples right (ratification and enforcement) act cap. a9 laws of the federation of nigeria 2004, universal declaration of human rights, 1948; ilo discrimination (employment and occupation) convention, 1958 and discrimination (employment and occupation) recommendation, 1958 (no. 111). 13 it should be noted that in this paper, the use of a masculine pronoun includes feminine. http://10.17561/tahrj.v20.7754 https://www.hindawi.com/journals/art/2017/5812650/ http://www.ialsnet.org/meetings/labour/papers/dakas-nigeria.pdf mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 3 aggrieved employee has a cause of action14. the accrued cause of action, grants the aggrieved employee a right of action at the national industrial court of nigeria (nicn) as a specialised court with exclusive original civil jurisdiction over such matters15. thus, in adewunmi akinola v ocean marine solutions ltd.16, the nicn was invited to determine the following questions: whether the act of non-disclosure by the defendant of the nature and type of medical examination to be carried out on the claimant at the defendant’s behest was not unlawful and a violation of the claimant’s rights; whether subjecting the claimant to hiv testing without pre and post-test counselling was not in breach of the law and a violation of claimant’s human rights; whether the failure of the defendant to disclose the hiv test result of the claimant to her but making same known to her co-employees is not unlawful and therefore a violation of her right to privacy and dignity of her human person, whether conducting hiv tests on the claimant without her informed consent first sought and obtained is not a violation of her rights and whether terminating her employment on account of her hiv positive status was not unlawful and discriminatory? this article, examines the impact of this decision on the quagmire of hiv employment related termination in nigeria and the place of informed consent in medical testing of employees by employers. it discusses the human right perspective of hiv/aids employment discrimination in nigeria and the attitude of the nicn towards such termination. the paper highlight matters arising from the decision and makes recommendations on how to effectively exploit the judgment towards curbing the tides of employment discrimination and termination of employment on account of an employee’s hiv status in nigeria. 2. adewunmi akinola v. ocean marine solutions ltd. in perspective before the facts of this case are highlighted, it is apposite to state that this is a decision of the nicn which is a court of first instance and may cause some persons to 14 akwa ibom state university & anor. v. mr. thompson tom ikpe [2016] 5 nwlr (pt. 1504) 146 at 162, paras a-c; bello v. attorney general of oyo state anor. [1986] 5 nwlr (pt. 45) 828; egbe v. adefarasin [1987] 1 nwlr (pt. 47) 1; p.n udoh trading company ltd. v. abere [2001] 11 nwlr (pt. 723) 114; yare v. national salaries, wages and income commission [2013] 12 nwlr (pt. 1367) 173; owie v. ighiwi [2005] 5 nwlr (pt. 917) 184. 15 section 253 of the 1999 constitution of the federal republic of nigeria (third alteration) act 2010; akeredolu, a. e. and eyongndi, d. t. “jurisdiction of the national industrial court under the nigerian constitution third alteration act and selected statutes: any usurpation?” (2019) 10(1) the gravitas review of business and property law, university of lagos 1-16; b atilola, m adetunji, and m dugeri, “powers and jurisdiction of the national industrial court of nigeria under the constitution of the federal republic of nigeria (third alteration) act 2010: a case for its retention” (2012) 6(3) nigerian journal of labour law and industrial relations 30-33; akintayo, j.o.a and eyongndi, d.t. “the supreme court of nigeria decision in skye bank ltd v victor iwu: matters arising’ (2018) 9(3) the gravitas review of business and property law 110; eyongndi, d.t. & onu, k.o.n. “the national industrial court jurisdiction over tortious liability under section 254c (1) (a) of the 1999 constitution: sieving blood from water” (2019) 10 babcock university socio-legal journal 243-270. 16 unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j. http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 4 disregard it or question the necessity or justification of interrogating it. however, the fact that the nicn is a court of first instance does not render its decisions inconsequential. the nicn, aside being a superior court of record (scr)17, is a specialised court18 which has and exercises both original and appellate jurisdictions over administrative and quasijudicial tribunals such as the industrial appeal tribunal19. moreover, appeals from the decision of the nicn on civil matters goes to the court of appeal which is the final court on such matters because its decisions are not appealable to the supreme court20. the implication of this is that a civil decision of the nicn, only goes one step upward i.e. to the court of appeal and most of nicn novel decisions have been upheld by the court of appeal as in sahara energy resources ltd. v oyebola21. quite often than none, the nicn decisions are rarely appealed therefore remain potent law on the issue determined22. the novelty and potency of the nicn decisions has placed it in a sui generis position such that unlike other courts of coordinate jurisdiction (i.e. the federal high court, state high court and the high court of the federal capital territory, abuja), its decisions are reported in a specialised law report like the decisions of the court of appeal and supreme court23. the decision under review, as would be seen subsequently, accord with an earlier decision of the court of appeal wherein the court held that subjecting a person to hiv test without obtaining inform consent and failure to conduct pre and post hiv test counselling is violation of the person’s fundamental rights24. thus, this present decision of the nicn is worthy of legal analysis. 17 by virtue of section 254c (1) (i) of the 1999 constitution of the federal republic of nigeria (third alteration) act, 2010, the nicn was included in section 6(5) of the 1999 constitution as a superior court of record; adejumo, b.a, ‘the role of the national industrial court in dispute resolution in nigeria’ (faculty of law public lecture of university of abuja organized by the law student association of nigeria, uniabuja chapter, 15 september, 2008). 18 eyongndi, d.t. & oyagiri, b.i., “paradigm shift on remedies for wrongful termination of master servant employment in nigeria” (2019) 1(3) international review of law and jurisprudence, afe babalola university 37-42. 19 eyongndi, d. t. “towards repositioning the industrial arbitration panel (iap) for the effective settlement of trade disputes in nigeria” (2019) 9 university of ibadan law journal 114-129. 20 section 254c (3) constitution of the federal republic of nigeria 1999 (third alteration) act, 2010, lagos state sheraton hotel v. hotel and personal service staff association [2014] 14 nwlr (part 1426) 45; coca-cola nigeria ltd v. akinsaya [2013] 8 nwlr (part 1386) 255; local government service commission, ekiti state v mr m a jegede [2013] lpelr21131 (ca). (2015); otuturu, g. g. “powers and jurisdiction of the national industrial court in the resolution of labour disputes in nigeria” (2010) 9(1) nigerian journal of labour law and industrial relations 35; ayeni, v.o. “criminal jurisdiction of the national industrial court of nigeria: constitutional watershed or another fly in the ointment?” inakinseye-george, y.,osamolu, s. and oluwadayisi, a.o. (eds) contemporary issues on labour law, employment and national industrial court practice and procedures essays in honour of hon. justice babatunde adeniran adejumo, (lawlords publications 2014) 75. 21 (2020) lpelr-51806 (ca). in this case, the court of appeal upheld the award of two year salary as damages for wrongful termination of employment contrary to the established common law position of the amount the employee is entitled if the specified period of notice had been abided. 22 petroleum and natural gas staff association of nigeria v schumberger anadrill[2008] 11 nllr (pt. 29) 164. 23 the nigerian labour law reports (n.l.l.r) published by rocheba law publishers is dedicated to reporting the judgement/rulings of the nicn. 24 mrs. georgina ahamefule v. imperial medical centre & anor. (2017) jelr 34304 (ca). http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 5 the brief facts of the case are that the claimant was employed by the defendant as a cleaner and resumed work on the 23rd of january, 2017. in april 2018, she was directed by the defendant alongside five other employees to go to kleinburg medical centre which is the defendant retained medical facility for medical test without informing her of the nature of the test to be conducted on her. at the medical facility, a form was given to her which was read and interpreted to her by her colleague whom they went together since she could not read and she signed thereafter. she was neither informed of the test, nor was her consent sought or even was there pre counselling before the test was conducted as it turned out to be hiv test. the result of the test was not sent to her but was sent directly to the defendant. subsequently, the human resources manager and the admin manager of the defendant at various times, confronted her and demanded to know if she had done hiv test during the birth of her children which she responded in the negative. she was immediately directed to go home and take an hiv test. thereafter, she began to receive discriminatory and embarrassing sympathetic messages from her colleagues on her hiv positive status. she was later on compelled to undergo another medical test with a directive to only return to the office after the result was received and she was not told the nature of the test she was to undertake despite asking. she complied although the result of the test was not given to her but it was also emailed directly to the defendant and subsequently, when she attempted to enter the defendant’s premises, she was disallowed by its management. thereafter, her employment was terminated. she reported her termination to the citizen mediation centre which invited the defendant for amicable settlement but the mediation was frustrated by the defendant’s uncooperative attitude. the defendant commenced this action at the nicn seeking various reliefs including but not limited to a declaration that the defendant’s failure to discuss the results of tests conducted on her is wrongful; a declaration that the defendant’s disclosure of the tests results to claimant’s co-employees and locking her out of its premises is discriminatory and amounts to stigmatisation. she also sought for an order of the court awarding the sum of n 30, 000, 000: 00 (thirty million naira) to her as damages for the wrongful termination of her employment, discrimination at work place, stigmatisation, embarrassment, psychological and emotional trauma that she suffered due to the defendants actions and omissions. the defendant entered appearance and filed its statement of defence and denied any wrongdoing. 2.1. defendant ’s argument before the court with regard to issue one, the defendant argued that based on the pleadings and evidence, it did not terminate the employment of the claimant, rather the claimant terminated the employment contract as shown in paragraphs 24 and 25 of dw 1 statement on oath and the exhibits tendered by her, particularly the print out of text messages by dwi to claimant’s telephones requesting her to return to work which were largely not responded to. on issue two, the defendant submitted that it has done no act that renders it liable to the claimant. on the assertion that the defendant scheduled the claimant for an undisclosed medical test, it argued that the uncontroverted evidence before the court was that it did not specifically scheduled the claimant for hiv test, but a comprehensive medical test together with it other employees as permitted by section 8(1) of the labour http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 6 act and section 9(5) of the hiv and aids (anti-discrimination and prohibition) act 2014 and since this evidence has not been controverted, the court was bound to accept same placing reliance on dingyadi & anor. v. wamako & ors25. on the allegation of failure to do pre and post hiv testing counselling pursuant to the national guidelines for hiv counselling and testing, the defendant contended that the responsibility was on the medical facility that determined which test to be conducted on the claimant. having decided to conduct hiv test, the medical facility and not the defendant, had the duty of counselling the claimant; to require that from it (i.e. the defendant), will amount to expecting the defendant to do the impossible which the law does not permit26. on the claim of discrimination, the defendant relied on nmcn v. adesina27 and submitted that there was no evidence that the claimant was treated differently (either during or after the test) from its others employees, and that it did not disclosed the claimant hiv status to her colleagues but the claimant herself did in order to attract their sympathy and favour28. the defendant also argued that since the burden of proof was on the party whose case will fail if no evidence was tendered in support of the case, the claimant was not entitled to any of the reliefs sought because she had not proved her case as the law demanded29. 2.2. claimant’s argument before the court arguing issue one, the claimant referred to paragraphs 9-26 of her witness statement on oath and the evidence of dw1, under cross examination to the effect that before she was sent for the subsequent test, they had concluded that she will be replaced hence, all of dw1 action of sending her text messages, demanding her to return to work was an afterthought reason being that she had lodged a complaint with the citizen mediation centre as at then30. at the meeting with the managing director of the defendant which the claimant brought her children to gain sympathy, claimant was advised to forget about her job and when she attempted to access the defendant’s hmo for treatment for herself and her children, she was not allowed like before. by relying on sections 39 and 77(b) of the evidence act 2011 and the case of onovo v. mba31, the claimant urged the court to discountenance the evidence of dw1 and dw2 on the grounds of being hearsay and contradictory. claimant contended that her employment was terminated mainly on account of her hiv positive status and without notice or payment of salary in lieu of notice. the court was urged to resolve the issue in her favour32. 25 [2008] 17 nwlr (pt. 1116) 395 at 407. 26 lasun v. awoyemi [2009] 16 nwlr (pt. 1168) 513. 27 (2016) lpelr-40610 ca. 28 adewunmi akinola v. ocean marine solutions ltd. unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j. 29 ibid at para.5 30 ibid. 31 [2014] 14 nwlr (pt. 1427) 291. 32 adewunmi akinola v. ocean marine solutions ltd. unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j at para. 10. http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 7 on issue two, the claimant contended that the defendant was in breach of section 7 of the labour act which requires an employer to give an employee, a statement stating the terms and conditions of employment within three months from the date of employment because, she was not given any by the defendant. the claimant further submitted that the manner the defendant and the medical family used to conduct the tests, which was without her knowledge and the result not given to her shows that they had colluded in violation of her right to privacy and human dignity33. this violated section 9 of the hiv/ aids (anti-discrimination and prohibition) act 2014, chapter 8, paragraph c, at page 37 of the national guidelines for hiv counselling and testing and section 12 of the illiterate protection law of lagos state 2015 as was espoused in kubau v. rilwanu34. while acknowledging the right of an employer to hire and fire an employee, the claimant argued that same cannot be on account of an employee’s hiv positive status, which is an act of workplace discrimination. the claimant therefore argued that the various human rights violations by the defendant, entitled her to damages to be awarded against the defendant by the nicn. 2.3. decision of the court the court summarised the evidence of the parties and found that exhibit d1 is the national guidelines for hiv counselling and testing, november 2011. chapter 4 pages 15 and 16 deals with pre and post-test counselling. chapter 8 deals with ethical and legal considerations. paragraph (a) page 35 provides inter alia that hiv test must be provided when requested or indicated in accordance with the 3cs principle of counselling, confidentiality and consent. paragraph (b) page 35 stipulates that the term informed consent refers to an intentional permission given by a client to a health care provider to proceed with the proposed hiv test procedures. the permission is based on an adequate understanding of the advantages, risks, potential consequences and implications of a hiv test result which could be negative or positive. the guidelines also provide that hiv testing must be voluntary with the employee making an informed decision about accepting same; the choice of the concerned individual must be respected because they have the right to refuse testing at any time even after the blood sample has been taken for the test. the guidelines prohibits mandatory hiv testing except in special circumstances. the court found that aside the defendant subjecting the claimant to hiv testing without her informed consent, there was also neither pre nor post-testing counselling as required. it also found that the defendant directing its security personnel at its gate to disallow the claimant entry into its premises, giving her money in an envelope at the gate and disclosing her hiv test result to her co-employees were all done in breach of section 3(1) of the hiv and aids (anti-discrimination and prohibition) act 2014 which guarantees the right of person living with or affected by hiv from discrimination on the basis of their hiv status. the court found that the act (i.e. hiv and aids (antidiscrimination and prohibition) act 2014) directs stakeholders, especially employers to protect the human rights of people living with or affected by hiv by eliminating hiv 33 ibid. para. 11-12. 34 [2014] 4 nwlr (pt. 1397) 284. http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 8 related discriminations in all settings including employment35. the court also found that aside the hiv and aids (anti-discrimination and prohibition) act 2014, other laws especially section 42 of the 1999 cfrn and article 2 of the african charter on human and peoples rights 1988 guarantees the claimant’s right to freedom from discrimination, which the various acts and omissions of the defendant breached. it further found that pursuant to section 37 of the 1999 cfrn, the claimant had the right to privacy which the defendant violated by making public the result of her hiv test to her colleagues which exposed her to unimaginable trauma36. in deciding issue one, the court made recourse to the evidence of the claimant wherein she averred that dw1 ordered her out of her office to go home and run a test on 5th and 7th may 2018 and not to come back until the results were received by the defendant. the dw1 and claimant line manager after receipt of the test results, admitted under cross examination that she knew that claimant would be replaced although same day i.e. 10th may 2018 they invited the claimant for a meeting with the managing director to hold on the 11thof may, 2022 who then told her to forget about her job. the court therefore came to the conclusion that the defendant terminated claimant’s employment by conduct based on her hiv status37. on the claim of the sum of n 30, 000, 000 as compensation and/or damages for the wrongful termination of her employment, discrimination at workplace, stigmatisation, embarrassment, psychological and emotional trauma caused the claimant as a result of the actions or omissions of the defendant and her staff having found that the claimant’s employment was terminated based on her hiv status in violation of extant laws, the court noted that: when hiv positive people are denied employment, they are deprived of the opportunity to earn a living and their worth as human beings is devalued thus, leading to the violation of their right of dignity. i found elsewhere in this judgment that the claimant has made out a case for discrimination on the basis of her hiv positive status. having so found, this court must provide a remedy even though there is no remedy in claimant’s contract of employment, for where there is a wrong there must be a remedy. the court noted the trite position that ordinarily, in claims for wrongful termination, the quantum of damages is the salary for the length of time during which notice of termination would have been given in accordance with the contract of employment, this is in addition to the legitimate entitlement38. however, the court detracted from following this position by virtue of the fact that the termination was done in violation of statutory provisions conferring various rights on the claimant. following 35 adewunmi akinola v. ocean marine solutions ltd. unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j at para. 11-12. 36 ibid. 37 adewunmi akinola v. ocean marine solutions ltd. unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j at para. 15. 38 idufueko v. pfizer products limited & anor. (2014) lpelr-22999 (sc). http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 9 the decision of the lagos state high court in mrs. georgina ahamefule v. imperial medical centre & anor39. the court made reference to its earlier decision in owolabi susan v. aso savings & loans plc.40 which involved the violation of an employee’s right of freedom of discrimination, and the sum of n 2, 437, 915.07 (two million, four hundred and thirty seven thousand, nine hundred and fifteen naira, seven kobo) was awarded as compensation. thus, on this claim, based on these decisions, the court held thus: in the light of the foregoing and having regard to the fact that the defendant did not provide the claimant with a contract of employment in breach of the labour act, and has thrown her into the society without any supports whatsoever, i award the claimant five years’ salary as compensation for wrongful termination of her employment, discrimination at the workplace, stigmatisation, embarrassment, psychological and emotional trauma in the sum of n 2, 100, 000 (two million, one hundred thousand naira)41. the court also awarded the claimant the sum of 100,000:00 (one hundred thousand naira) as the cost of the action although same was prosecuted pro bono, nonetheless, the claimant commuted to and fro the court all through the proceedings. this decision is a profound and welcomed development. it is a step towards the right direction in stemming the negative tides of workplace discrimination on the basis of an employee’s perceived hiv status. people infected by or affected by hiv are not outcast to be treated with discomfiture as the defendant did through its various acts and omissions. a person or an employee that is hiv positive still enjoy all his fundamental rights guaranteed by the law of nigeria. this decision demonstrates the stance of the nicn against all forms of employment discrimination especially discrimination predicated on hiv status and subsequent termination of employment of an employee on the same basis. the court has by this decision, reaffirmed the inviolability of employees’ rights of privacy, dignity of the human person, and freedom from discrimination as well as reiterated, in the strongest of terms, the unshifting obligation of an employer (even where it act through its proxy) to ensure that informed consent is sought and obtained for hiv testing to be conducted on an employee as well as pre and post testing counselling is done thereafter. 39 unreported suit no: id/1627/2000 judgment delivered by y. o. idowu on the 27th day of september 2012. it is apposite to state that as at the time this case was instituted, the national industrial court of nigeria (nicn), neither had nor exercises exclusive original jurisdiction over labour and employment disputes. however, as from 2010 when the 1999 constitution of the federal republic of nigeria (third alteration) act, 2010 came in force, the nicn was the only court with requisite jurisdiction to adjudicate over such disputes pursuant to section 245c (1) (d) of the 1999 cfrn (third alteration) act, 2010 notwithstanding section 46(1) thereof. thus, the lagos state high court ought to have transferred the matter to the nicn in 2010 and not continue with it till judgment was delivered in 2012. 40 unreported suit no: nicn/ak.52/2015 judgment delivered by oyewumi j on 10th july, 2018 at 21-22. 41 adewunmi akinola v. ocean marine solutions ltd. unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j at paras. 51-57. http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 10 despite this profundity, it is vehemently argued that the decision has not met the legitimate expectation and justice of the instant case gleaning from the traumatising experience of the claimant and the arrogance displayed by the defendant particularly in its persistent but futile attempt at abdicating from its obligation to the claimant by admonishing her to go on a fruitless and senseless voyage of making the health facility where she was commanded to go for the hiv tests responsible for the pre and post hiv test counselling. this issue and others, are discussed in the succeeding section of this paper under matters arising from the decision. 3. hiv/aids discriminations as a human rights violation according to the united nations office on drug and crimes (unodc), besides india and south africa, nigeria is the third country with the highest number of persons infected by hiv as it has about 1.9 million persons living and affected by hiv/aids42. thus, it is needless arguing that there is prevalence of hiv/aids in nigeria and most of the affected persons are within the working category43. when an employee’s employment is terminated on account of his hiv/aids’s positive status, several of the concerned employee’s human rights are violently infracted. this section of the paper focuses on these rights and their interlock with the instant case. sections 33, 34, 37 and 42 of the 1999 cfrn and sections 2, 5, 15 and 19 of the african charter on human and peoples rights (ratification and enforcement) act44 (achprr act) deal with the rights to life, private and family life, freedom from discrimination and dignity of the human person of every nigerian45. both ilo discrimination (employment and occupation) convention, 1958 and discrimination (employment and occupation) recommendation, 1958 (no. 111) in defining discrimination, provides that any preference, distinction or exclusion which tends to impair equality of opportunity or treatment in employment is discrimination. hiv related employment termination fits into this definition of discrimination46. articles 2 and 3 thereof, enjoin member states to the convention and recommendation to pursue national policies that eliminate all forms of discrimination and in particular, enact laws to deal with the menace while promoting the principle of non-discrimination. the right to respect the dignity of the human person of every nigerian requires that, any action and, or, omission taken by a private person or a government official or agency, the dignity of the person towards whom the act and, or omission is made, must 42 unodc, “hiv and aids in nigeria” https://www.unodc.org/nigeria/en/hiv-and-aids.html> accessed 18 march 2022. 43 ekanem e.e, gbadeqesin a. “voluntary counselling and testing (vct) for human immunodeficiency virus: a study on acceptability by nigerian women attending antenatal clinics” (2004) 8(2) african journal of reproductive health, 91–100. 44 african charter on human and peoples rights (ratification and enforcement) act cap. a9 laws of the federation of nigeria, 2004. 45 monjok, e. smesny, a. and essien, j. “hiv/aids related stigma and discrimination in nigeria: review of research studies and future directions for prevention strategies” (2009) 13(3) african journal of reproductive health 21–35. 46 article 1(b) ilo discrimination (employment and occupation) convention, 1958, rec. 1(b) discrimination (employment and occupation) recommendation, 1958 (no. 111) http://10.17561/tahrj.v20.7754 https://www.unodc.org/nigeria/en/hiv-and-aids.html https://pubmed.ncbi.nlm.nih.gov/?term=monjok%20e%5bauthor%5d https://pubmed.ncbi.nlm.nih.gov/?term=smesny%20a%5bauthor%5d https://pubmed.ncbi.nlm.nih.gov/?term=essien%20ej%5bauthor%5d mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 11 not be devalued, impugn, or even eroded no matter how slight47. akani48 has posited that dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. in ordinary modern usage, the word denotes "respect" and "status", and it is often used to suggest that someone is not receiving a proper degree of respect, or even that they are failing to treat themselves with proper self-respect. okene and akani49 assert that the basis of dignity can be said to lie in the autonomy of self and self-worth that is reflected in every human being’s right to individual self-determination. so long as the humanity of the person is not in question, the person must be accorded the respect and honour a human being deserves at all times subject to the dictate of the law50. thus, any action and, or, omission that tends to undermine, prejudice or attack the dignity, human value of the person, is an act or omission that violates the human dignity of the concerned person51. a person’s human dignity is neither traceable nor discoverable from status, class, social status, economic power, education level, sexual or political orientation, professional accomplishment or any other distinction or distinguishing feature but solely a function of the fact of being human52. once it is adjudged that the object of any action and, or, omission is a human being, this right naturally crystallises53. thus, any action considered inhuman/inhumane and degrading that tends to lower the worth of a human being in the eyes of reasonable members of the society, exposes one to shame and ridicule, lowers or extinguishes the self-worth of a person is a violation of the person’s right to dignity of his human person which is inherent in every human being and is prohibited54. this right is guaranteed by section 34 of the 1999 cfrn. the act of terminating an employee’s employment owing to his being hiv positive, is a violation of the dignity of the employee. the attendant ridicule and or pity that follows from such, is a degradation of the self-image or esteem of the victim which is prohibited by both the 1999 cfrn and achprr act. this was what was brazenly inflicted on the claimant by several actions and omissions of the defendant such as making known the hiv test result of the claimant to her co-employees without her knowledge and authorisation, refusing her entry to its premises while directing the gateman to give her a sealed envelope outside, subjecting her to hiv test without first seeking and obtaining her consent and failure to conduct pre and post hiv test counselling as mandatorily required. violation of dignity 47 akani, n. k. “a critical appraisal of the right to human dignity vis-à-vis the rights of women in nigeria” https://www.researchgate.net/publication/341464153_a_critical_appraisal_of_the_right_to_ human_dignity_vis-a-vis_the_rights_of_women_in_nigeria accessed 20 september 2022. 48 ibid. 49 okene, o.v.c. and akani, n.k. “human dignity and human rights: the nigerian question” (2019) 19 maiduguri law journal, 199-200. 50 shultzine, d.,“human dignity in judicial decisions: principles of application and the rule of law”(2017) 25 cardozo journal of international & comparative law435-481. 51 dada, j. a. and ibanga, m. “impediments to human rights protection in nigeria: from rhetoric to pragmatic agenda” (2011) (1) (2) african journal of law and criminology, 93. 52 mccrudden c., “human dignity and judicial interpretation of human rights” (2008) 19(4) european journal of international law, 655–724. 53 anyanwu, i. and anyanwu. l. o, “discriminatory property rights against women in igbo nigeria: the victorious case of ukeje v ukeje” (2017) (2)1 journal of law and global policy 1-10. 54 articles 6 and 7 of the international covenant on civil and political rights 1966. http://10.17561/tahrj.v20.7754 https://en.wikipedia.org/wiki/rights https://en.wikipedia.org/wiki/respect https://www.researchgate.net/publication/341464153_a_critical_appraisal_of_the_right_to_human_dignity_vis-a-vis_the_rights_of_women_in_nigeria https://www.researchgate.net/publication/341464153_a_critical_appraisal_of_the_right_to_human_dignity_vis-a-vis_the_rights_of_women_in_nigeria javascript:; termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 12 or human dignity of a person, especially women, could take various forms55. the main categories of violations are degradation, humiliation, segregation, instrumentalisation or objectification, debasement and dehumanization. all these categories of violation of human dignity are involved or inherent in hiv/aids employment related discrimination especially acts such as termination of employment, indefinite suspension from work on account of an employees’ hiv positive status, subjection to multiple medical screening and divulgement of the result to unauthorised third parties. these acts are capable of exposing the concerned employee to mental and psychological trauma, owing to the violation. this is contrary to minimum basic human rights expectations. article 5 of the universal declaration of human rights (udhr) provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment56. it is submitted that the various actions and omissions of the defendant against the claimant encapsulated above, are diametrically opposed to the foregoing provisions of the udhr as they exposed the claimant to mental and psychological torture, inhumane, degrading and cruel treatment. freedom from discrimination on the other hand as enshrined in section 42(1) of the 1999 cfrn means that a person shall not be treated differently from others based on negative distinguishing considerations. by virtue of article 1 of ilo discrimination (employment and occupation) convention, 1958 and discrimination (employment and occupation) recommendation, 1958 (no. 111), discrimination entails making an unjust or prejudicial distinction in the treatment of different categories of people, especially on the grounds of race, sex, age, religion, ethnicity, tribe, colour, nationality, health status, disability, preference, distinction or exclusion that prejudices equal treatment or opportunity57. thus, where a benefit is to be conferred by a person or an authority, a person who is qualified, deserving or falls into the category of beneficiaries, must not be disentitled based on any factor which others are not subjected to but only the affected person as this will amount to discrimination. unfortunately, this is how people living with or affected by hiv/aids (plwha) are often treated by their employers and co-employees in nigeria58. the termination of an employee’s employment upon discovery that he is hiv positive is discriminatory especially where it has not been shown that the concerned employee is rendered incapable or unsuitable to perform the job by virtue of his status. where the basis for termination is the hiv positive status of an employee, the termination is discriminatory because the employment would not have been brought to an end abruptly if not for the employee being hiv positive. this transcends beyond discrimination to unjustly certifying such an employee as less human hence, is a direct attack on the dignity or self-worth of the employee. every act of discrimination, especially on account of health such as hiv has an inherent element of dignity diminution. it unjustifiably questions the human capacity of the victim59. 55 article 5 of the protocol to the african charter on human and peoples’ rights on the rights of women in africa 2003. 56 universal declaration of human rights 1948. 57 aina-pelemo, a. d and others, “sexual harassment in the workplace: case study of the nigerian legal sector” (2019) 86 journal of law, policy and globalisation, 121-137. 58 eyongndi (note 5) 120. 59 ajayi, m.o. “the inter-jurisdictional perceptions on economic, social and cultural rights of women in the development of democracies in nigeria” (2019) journal of private and comparative law, 59-79:60; ajayi, m.o. and eyongndi, d.t. “legal status of casual employees under nigerian labour law: the imperative for legal reforms” (2019) 19(1) university of benin law journa, 164. http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 13 in fact, section 17(3) of the 1999 cfrn, implore the government to direct its policies in a way that without discrimination on any group whatsoever, all citizen are guaranteed the opportunity of securing adequate means of livelihood and adequate opportunity of securing suitable work. while the 1999 cfrn does not expressly recognise the right to work, it is argued that based on the inseparability and interdependence of human rights60, the aforementioned section of the constitution (although not justifiable), should not be treated with levity as the enjoyment of the justiciable rights is intrinsically tied to the observance of the injusticiable rights. plwha do have a right to decent life which is only possible if they are gainfully employed especially when their ability to work is not impaired. thus, it becomes imperative for their employment not to be tempered with or terminated arbitrary. aside the fact that work is the main means through which human needs (such as food, shelter, clothing, etc.) are met, there is an inherent aspiration in man to work so as to fulfil the innate desire of contributing to the society. this desire should not be obstructed or truncated by anyone especially unjustifiably as it is the case when an employee’s employment is terminated solely on the account of being hiv positive. what is more, section 3(1) of hiv and aids (anti-discrimination) act, 2014 prohibits discrimination on the basis of real or perceived hiv status concerning access to and continued employment, conditions of employment, employment benefits, comprehensive health services, education, use of public facilities and other social services, provided by the employer, individual, community, government or any other establishment. private and family life of an employee as contained under section 37 of the 1999 cfrn entails that private affairs of the employee is treated with utmost confidentiality by the employer61. privacy has been defined as the right to be left alone62. another definition is that privacy is “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information or any other communicative means63. privacy flows from the autonomy of the human person which dignity requires respect and protection64. conceived in this way, an individual is allowed to lead his life without unjust interference or disturbance. thus, the health status of the employee is not a matter that should be made public as it is the case where an employer makes public, the result of an employee’s hiv test contrary to section 37 of the 1999 cfrn. the defendant actions of subjecting the claimant to hiv test and multiple confirmation tests thereafter without informing her of the nature of the tests she was undergoing, failure to seek and obtain her informed consent before 60 imasogie, m.o., “human rights, women rights: so long a journey” (3rd bowen university inaugural lecture 2017) 2-4; nasr, l,“are human rights really ‘universal, inalienable, and indivisible?” https:// blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ accessed 20 september 2022. 61 salau, a. o. “data protection in an emerging digital economy: the case of nigerian communications commission: regulation without predictability?” 7th international conference on information law and ethics, 22-23 february 2016 http://icil.gr/download.php?fen=years/2016/downloads/documents/icil_2016_ proceedings_book.pdf accessed 10 october 2022. 62 brandeis j in olmstead v united states 277 us 438 478. 63 report of the committee on privacy and related matters 1990 cmnd. 1102, london: hmso at 7. 64 nwauche, e. s., “the right to privacy in nigeria” review of (2007 1 (1) nigerian law and practice 64-65. http://10.17561/tahrj.v20.7754 https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ http://icil.gr/download.php?fen=years/2016/downloads/documents/icil_2016_proceedings_book.pdf http://icil.gr/download.php?fen=years/2016/downloads/documents/icil_2016_proceedings_book.pdf termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 14 carrying out the tests on her, failure and or refusal to undertake pre and post hiv test counselling, refusal to disclose to her the result of her hiv tests carried out without her consent but disclosing same to her co-employees and unauthorised third parties, refusing her entry to its premises, etc., contravenes sections 5 of the african charter on human and peoples rights (ratification and enforcement) act which guarantees her right to privacy and family life. as well as section 34 of the 1999 cfrn. the fact that an employee is infected with hiv, does not erode his or her human dignity and privacy hence, such an employee or anyone for that matter, should not be exposed to any form of privacy breach or discrimination65. the act of an employer compelling an employee to undertake hiv test as a prerequisite for continuous employment, making known the result of the employee’s hiv status, preventing the employee from entering its business premises on account of being hiv positive are acts that tend to diminish or abase the dignity of the human person of the employee66. the nicn in mr. emmanuel ejiogu enuhikemi v. srimdu nigeria ltd.67 held that the act of directing an employee to undergo hiv testing, disclosing of the result to third parties and consequent termination of employment contingent on the employee’s hiv positive, violates the employee’s right to dignity of human person and freedom from discrimination guaranteed by the combine provisions of sections 34(1) (a) and 42(1) of the 1999 cfrn. from the foregoing, where an employer terminates the employment of an employee owing to the employee’s hiv/aids status, the right to human dignity and freedom from discrimination of the concerned employee is violated68. the question is, if not for the fact that the employee is hiv positive, would his employment been terminated? the answer is negative. in fact, discrimination against any employee predicated on hiv/aids status is a form of violation of the right of human dignity of the employee. it could be safely argued that, in terms of importance, the right to dignity of human person and freedom from discrimination may only rank second to right. this is based on the trite natural law position that human rights are universal, interrelated and interdependent69. when an employee’s dignity is attacked and eroded, the employee’s human essence is not only attacked but 65 okongwu, o. c, “perception of sex discrimination and sexual harassment among employees in nigeria: a comparative study of nigerian and the british employee protection laws” (phd thesis, de montfort university, and leicester 2017) 89. 66 oyediran k, oladipo o, anyanti j. “hiv/aids stigma and discrimination in nigeria” paper presented at xxv international population conference, international union for the scientific study of population (iussp); july 18–23, 2005; tours, france. http://www.iussp2005.princeton.edu/download.aspx/submission id=51685 accessed 20 december 2021. 67 unreported suit no: nicn/lg/265/2015 judgment delivered on the 15th day of july, 2016. 68 maiya incorporated trustees clinton health access initiative & ors. [2012] 27 n.l.l.r. (pt. 76) 110. 69 neves-silva, p., giselle, i. m., and heller, l., “human rights’ interdependence and indivisibility: a glance over the human rights to water and sanitation” (2019) 19(14) bmc international health and human rights, 1-8; hess, a., and knotts, b., “universal, indivisible, and interdependent human rights” https://www.uua.org/international/blog/universal-indivisible-and-interdependent-human-rights accessed 18 september 2022. http://10.17561/tahrj.v20.7754 http://www.iussp2005.princeton.edu/download.aspx/submissionid=51685 http://www.iussp2005.princeton.edu/download.aspx/submissionid=51685 https://www.uua.org/offices/people/allison-hess http://../../dominion/desktop/in%20progress/knotts https://www.uua.org/international/blog/universal-indivisible-and-interdependent-human-rights mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 15 devalued and invariably extinguished70. discrimination inflicts an indelible wound on the personality and self-worth of an employee especially, when same is contingent on hiv positive factor which should ordinarily attract empathy and support. stigmatisation and discrimination in the workplace on any ground especially, on account of hiv/aids status are inimical to decent employment and counterproductive as they hinder the dire needed prevention efforts. nwakwe and aloh71 graphically captured the plight of people living with hiv and affected by aids in nigeria thus: in nigeria, plwha suffer from all sorts of discrimination, stigmatization, isolation, detention, quarantine and their right to privacy and confidentiality are breached with impunity. they are tested for hiv without their consent and worst still without pre and post counselling. considering the serious nature of the hiv testing, it is inhuman and may amount to torture to test one for hiv/aids without proper counselling before and after the test. in terms of employment, plwha are either denied employment or have their employments terminated by their employers on the basis of their hiv statuses, such action is a sheer act of discrimination against plwha which may hasten or facilitate their deaths. more so, pregnant women and vulnerable groups are tested without their consent and without being counselled thereby exposing them to other negative consequences, ranging from being subjected to violence or being battered by their spouses and stigmatized by their communities. the cruellest aspect is that they are not offered or given any treatment after testing hivpositive. the above ugly description is the reality of those infected with hiv or affected by aids in nigeria72. the psychological and emotional trauma inflicted by hiv/aids discrimination and stigmatisation could instigate an employee to commit suicide73. thus, discrimination aside being an affliction upon the dignity of an employee, is a threat to right to life. anyone who is hiv positive is generally regarded as being promiscuous despite the fact that hiv could be contracted by means other than sexual intercourse, so being infected is considered as the reward for promiscuity or waywardness. this perception which stem mainly from ignorance is unfortunate, tragic and traumatising. the case of mrs georgina ahamefune v. imperial centre and anor.74 demonstrates the 70 ejike maduka v. microsoft incorporated nig. ltd. & 2 ors. [2014] n.l.l.r. (pt. 125) 67. 71 uwakwe, fc and aloh, jn “cultural practices and human rights implications on hiv/aids discrimination and other related issues in nigeria”(2019) 10(1)nnamdi azikiwe university journal of international law and jurisprudence 20-31. 72 alubo o, zwandor a, jolayemi t, and omudu e., “acceptance and stigmatization of plwa in nigeria” (2002) (14) 1 aids care, 117–120. 73 utulu s.n, lawoyin t.o. epidemiological features of hiv infection among pregnant women in makurdi, benue state, nigeria. (2007) 39(3) journal of biological science, 397–408. 74 (2017) lcn/10078 (ca). http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 16 agonising plight of people living with hiv or affected by aids in nigeria and we take the liberty to present its brief facts giving its profundity to the present discuss. the respondent was an auxiliary nurse employed by the 1st appellant. sometime in 2005, she became ill and was referred to the 1st appellant’s retained medical facility for treatment whereupon several diagnostic tests were carried out including hiv screen without her consent first sought and obtained. the result of the test was not made known to her but directed to the 1st appellant. the 1st appellant gave her a sealed envelope to a consultant at lagos state university teaching hospital (luth). she and her husband were invited by the consultant at luth and blood sample were taken; they were not informed of the nature of test to be conducted on them. after the test, she was informed that she is hiv positive while her husband was negative. she returned to the 1st appellant who referred her to the 2nd appellant for treatment who refused on the ground that he does not want her to contaminate the medical instruments of the 1st appellant and without treatment nor counselling, her employment was terminated. she sued the 1st and 2nd appellant at the lagos state high court arguing that her termination was discriminatory and unlawful as same violated her right to freedom from discrimination and dignity of human person. during trial, the respondent counsel, urged the court to grant the case accelerated hearing while the appellants counsel argued that to guarantee public safety and health, a medical report by an expert must be produced by the respondent (as claimant then) to show that it was safe for her to attend court and give evidence. the court upheld the objection. being dissatisfied, the claimant appealed the ruling of the trial court contending that same was discriminatory and therefore, unlawful. the court of appeal upheld the appeal by upturning the ruling of the trial court. the court of appeal noted that it was unconstitutional to deny the claimant access to court to ventilate her grievances on account of her hiv status. before the federal government of nigeria enacted the hiv and aids (anti-discrimination) act, 2014 to stem the tide of hiv/aids employment related discrimination, the lagos state government had enacted the lagos state protection of people living with hiv and affected by aids law, 2007. section 10 of the law provides that segregation, stigmatisation and discrimination at the place of employment particularly with reference to nature of work, right to transportation, training and provision of other benefits including but not exclusive to health and insurance and compulsory and mandatory hiv testing for all employers of labour are regarded as discrimination against persons living with hiv and affected by aids. by section 11 thereof, every person living with hiv or affected by aid has the right to gainful employment either in public or private establishments subject to being qualified and availability of vacancy. every person living with hiv and affected by aids must be assured of freedom from unlawful termination of his employment on account of his/ her hiv/aids status and all employers (private/public) must put in place hiv/aids policy for the benefit of its employees who are living with hiv or affected by aids. by virtue of section 18(4) of the law, any employer who contravenes the provisions of section 11 thereof, shall be liable upon conviction to a fine of n150, 000:00 (one hundred and fifty thousand naira) only or a term of imprisonment not exceeding two years and any person that contravenes section 10 shall be liable to a fine of n 50,000:00 (fifty thousand naira) only or a term of imprisonment not exceeding two years or http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 17 both fine and imprisonment while this provisions seek to curb the unwholesome and worrisome practise of hiv/aids employment related discrimination and termination by making employers responsible, one would have expected that the punishment imposed for failure to abide by the provisions of the law especially sections 10 and 11 thereof, would have been more stringent to achieve deterrence. it would seem that being punished with an imprisonment term especially short term might not be considered to be consequential by some persons just as the sum of one hundred and fifty thousand naira may be regarded as meagre. thus, imposing a heavier punishment like three to four years imprisonment or a fine of ten million naira or both is likely to achieve deterrence than the one imposed. 4. matters arising from the decision in adewunmi akinola v. ocean marine solutions ltd. the court at various point in the judgment found that the defendant had breached its statutory obligations towards the claimant and had exposed her to unquantifiable hardship, ridicule, stigma and deprivation. the defendant had surreptitiously rendered the claimant a permanent casual staff by refusing to issue her letter of employment in accordance with section 7 of the labour act despite her demanding for it several times. the defendant did not only failed to disclose the nature of the medical test the claimant and other employees were commanded to go and undertake, she was neither offered pre or post-testing counselling as required by law; the result of the test was neither made available to her by the medical facility or the defendant upon receipt of same from its agent (the medical facility), left not bothered to discuss same with her but deemed it fit to make her hiv status a matter of public knowledge and interrogated her ominously with further directive to take confirmatory test as if she was worthless and a coin to be toss at will as a decider in a football match. she soon became an object of unsolicited sympathy from her co-employees on her “acquired deadly status” of being hiv positive and subsequently, despite her entreaties, her employment was terminated arbitrarily with impunity by the defendant with its attendant hardship. despite this, the court made reference to other cases as a guide on the quantum of damages which were decided some significant years before the instant case and awarded the sum of n 2, 100, 000 (two million, one hundred thousand naira) out of the sum of n 30, 000,000:00 (thirty million naira) claimed. while it is conceded that a court of law is not a father christmas and even a father christmas, only give gifts on christmas day75 which the day the judgment was deliver was not, this notwithstanding, the legitimate and reasonable expectation is that the peculiarity 75 ladokev, oladoye[1992] 8 nwlr (pt. 261) 605. it was stated that “it is the law that the court is not a father christmas and so ought not to go about granting to parties, reliefs which they have not asked for. a court is powerless to award to a claimant what he did not claim or grant an unsought relief.” see also adetoun oladeji nig.ltd v. n.b plc.[2007] 5 nwlr (pt. 1027) 415. abayomi, a. a., “is a court of law truly not a father christmas?”https://barristerng.com/is-a-court-of-law-truly-not-a-father-christmas/ accessed 20 september 2022. http://10.17561/tahrj.v20.7754 https://barristerng.com/is-a-court-of-law-truly-not-a-father-christmas/ termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 18 of this case as outline above and giving the prevailing economic situation, an amount more than that what was awarded (i.e. n 2, 100, 000), maybe not less than n 10, 000, 000:00 (ten million naira) would have at least, met the justice of this case. the amount awarded by the lagos state high court in mrs. georgina ahamefule v. imperial medical centre & anor.76 and the nicn in owolabi susan v. aso savings & loans plc.77 which were both decided in 2012 and 2018 respectively cannot be a correct precedent giving the fact that the socio-economic situation of this times (i.e. 2012 and 2018) and even the value of naira are not the same with what is obtainable in 2021 as naira has seriously depreciated in value and inflation rate has astronomically increased. it is argued that aside this, the amount awarded is incapable of serving as deterrent to the dastard act occasioned by the defendant against the claimant. the jurisprudence of damages as a remedy under nigerian law is well established having been pronounced upon by both the court of appeal and the supreme court in plethora of cases. the court of appeal in ecobank nig. plc. v. elder daniel dominic ekperikpe78 stated that the object of damages especially in breach of contract, is to put the claimant in the position he would have been in, if the contract had been satisfactorily performed. also, with regards to the measurement of damages, alobo79 opined that the general rule is that the party in breach is liable in damages in the amount which flows directly and naturally from his failure to keep his own part of the contract or bargain provided that such damages could reasonably have been within the contemplation of the parties at the time when the contract was made. the above position of the court of appeal has been given judicial approval by the supreme court in g.k.f.i. (nig.) ltd. v. nitel plc.80. the foregoing adumbrations of the two appellate courts, typically relates to damages known as general damages which are awarded once the claimant shows that he has been prejudiced by the action or omission of the defendant81. the damages is left to the assessment of the court based on the peculiarity of the case. aside general damages, according to oyewo82 the court can also award special damages which is damages that is the actual, but not necessarily, the result of injury or harm complained of, and which in fact follow such injury or harm as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. the import of the foregoing is that this class of damages does not arise from the wrongful act/omission itself, but depends on circumstances peculiar to the infliction of each respective injury83. besides these two species of damages, while the law lean against double compensation, the fact leading to or the injury itself could justify the court awarding damages beyond the injury suffered. such damages is what is known as exemplary or aggravated damages which is another 76 unreported suit no: id/1627/2000 judgment delivered by y. o. idowu on the 27th day of september 2012. 77 unreported suit no: nicn/ak.52/2015 judgment delivered by oyewunmi j on 10th july, 2018 at pages 21-22. 78 [2011] 4 nwlr (pt. 1237) 223. 79 alobo, e. e.,law of contract, 2nd ed., (lagos: princeton & associates publishing co. ltd., 2016) 434. 80 [2009] 13 nwlr (pt. 1164) 305. 81 adecentro v. council of obafemi awolowo university [2005] all nlr 58. 82 oyewo, o., modern administrative law and practice in nigeria(lagos: university of lagos press and bookshop ltd., 2016) 380. 83 west africa examination council v. umeakuka [2013] 15 wrn 172. http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 19 type of damage the court may award in deserving cases. according to oyewo, exemplary damages are usually awarded whenever the defendant ’s conduct is sufficiently outrageous to merit punishment, such as in instances where malice, fraud, cruelty, insolence, flagrant disregard of the law are disclosed. the supreme court underscored this point in allied bank (nig.) ltd. v. akabueze84. this specie of damage is on an increased scale over and above actual, general or special damages, awarded strictly in aggravated circumstances and they remain punitive in nature capable of achieving deterrence85. a claim and award of exemplary damages is an indication that then act of the defendant is such that the awarded damages are intended to punish the defendant and vindicate the strength of the law serving as a warning to general public against the act/omission perpetuated by the defendant and not merely as compensation for the injured claimant86. it is apposite to note that in justifying an award of aggravated or exemplary damage, it is not sufficient to show that the defendant has committed the wrongful act or make the omission complained of, but that the conduct was high-handed, outrageous, inhumane, callous, insolent, vindictive, oppressive or malicious, and showing contempt of the claimant’s right or disregarding every principle which actuates the conduct of a civilised person and has thereby exposed the claimant to serious and unquantifiable injury87. the case of alaboh v. boyes88 where a thirteen year old child and her father were brutally battered and detained by policemen justified the award of exemplary damages as their action was not only despicable but flagrant disregard of the law. within the prism of labour and employment relationship, the nicn has adopted and justifiably applied the above stated position even at the expense of being iconoclastic as far as award of damages is concerned. the position is that in wrongful termination of employment, the claimant is only entitled to what he/she ought to have received if the employer had rightly terminated the employment as was held in isheno v julius berger nig. plc.89. however, in sahara energy resources ltd. v mrs. olawunmi oyebola90 where the claimant employment was wrongfully terminated on allegation of bribery and dishonesty which were proved to be false. the nicn contrary to settled position on the quantum of damages awardable in the case of wrongful termination, awarded the claimant two year salary which was over and above the amount generally entitled to. the decision of the court was informed by the peculiarity of the case and the action of the defendant who in terminating the claimant’s employment, failed to follow its code of conduct and the allegation pursuant to which the termination was based, was not investigated left not proved. the court thereby came to the conclusion that the way and manner the defendant had acted is malicious, oppressive, inhumane and in total disregard to the law 84 (1997) 6 scnj 166. 85 g.k.f.i. (nig.) ltd. v. nitel plc. [2009] 13 nwlr (pt. 1164) 305. 86 university of calabar v. orji [2012] 3 nwlr (pt. 910)418; allied bank of nig. ltd. v. jonas akabueze (1997) 6 scnj 166. 87 maritime management associates inc. & anor. v. national maritime authority [2012] 18 nwlr (pt. 1333) 506 at 544; anthony odiba v. tule azege (1998) 7 scnj 119. 88 (1984) 5 nclr 830. 89 [2012] 2 nllr (41) 127. 90 (2020) lpelr-51806 (ca). http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 20 warranting stiffer sanctions than ordinary compensatory propitiation. the nicn had apply international best practice pursuant to its enhanced jurisdiction under the 1999 constitution of the federal of nigeria (third alteration) act, 2010 in common to the conclusion it came. the decision of the nicn was affirmed by the court of appeal, in fact ogakwu jca held as follows: in circumstances where the employee is unlawfully dismissed, it should attract substantial damages, where claimed, in line with international best practices and not based on the hitherto existing principles91 that pre-dates the advent of the innovative provisions of the third alteration to the 1999 constitution. section 254c (1) (f) and (2) of the 1999 constitution empowers the lower court to apply international best practices in labour, and conventions, treaties, recommendations and protocols ratified by nigeria. the high courts were not so empowered in exercise of jurisdiction in labour matters which culminated in the principles of the superior courts on the measure of damages… the innovative provisions necessarily demand a rethink of the principle in the light of changed circumstances in the law. accordingly, i will be deferential to the general damages awarded by the lower court in exercise of its jurisdiction to apply international best practices… i therefore uphold the award by the lower court of the equivalent of two years’ salary as general damages for the unlawful dismissal of the respondent92. looking at the fact of adewunmi akinola v. ocean marine solutions ltd.93 particularly the various actions taken by the defendant such as subjecting the defendant to hiv/aids testing without her consent, refusing her ingress into its premises after the test result was known to it, making public the hiv test result of the claimant to her co-employees which exposed her to unwarranted ridicule and opprobrium, failure to direct its agent to offer pre and post hiv testing counselling to the claimant and attempting to exonerate itself from that duty by shifting that responsibility to its agent, directing its security personnel to give the claimant money in an envelope outside its premises, refusal to attend reconciliatory meetings by the lagos state citizen’s right office are acts that amounts to flagrant breach of the law particularly sections 42, 38 of the 1999 cfrn, section 8 of the labour act, sections 3(1), 9, 16 of the hiv and aids (anti-discrimination) act, 2014 and national guidelines for hiv counselling and testing. aside the facts that these acts/omissions of the defendant violates nigerian law, without equivocation, are oppressive, inhumane, malicious, dastard, and high-handed. based on this, they qualify for the court to have awarded damages over and above the ordinary quantum as the injury the action of the defendant inflicted on the claimant cannot be quantified in monetary terms. being hiv/aids positive is a situation that naturally attract societal opprobrium, the patient is dreaded and treated like an outcast or an accursed person whom the society would not wish to have anything to do with, the 91 the court was referring to the dictum of garba jca (as he then was) in its earlier decision in oaks pensions ltd. olayinka [2017] lpelr-43207 (ca). 92 sahara energy resources ltd. v oyebola (2020) lpelr-51806 (ca) at pp. 35-36. 93 unreported suit no: nicn/la/410/2019 judgment delivered on the 25th of october, 2021 by nweneka j. http://10.17561/tahrj.v20.7754 mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 21 person is covertly an overtly segregated and prospect of securing employment is slim if not practically impossible. the emotional and psychological trauma that this experience brings to bare on its victims is better imagined than experienced but this is what the claimant was brazenly exposed to. the defendant was unsympathetic to her pleas even when she brought her child to attract sympathy, she was despised and a retinue of false witnesses was assembled against her. the defendant urge to humiliate and inflict irrecoverable pains on the claimant as demonstrated in boundless. it is therefore perplexing that the court did not deem it fit to grant at least half of the amount sought as damages but a paltry sum. the amount granted by the court seems insignificant to deter employers from treading the ignoble path which the defendant trod. all hands must be on deck to eradicate the epidemic of hiv/ aids employment discrimination and stigmatisation especially by non-governmental organisations (ngos) through organising hiv/aids public enlightenment programmes. giving the propensity of stigmatisation that they suffer, protecting their identity where they take the bold step of challenging the violation of their rights in court should be granted them. the court should be interested in shielding them and preserving their dignity by not uncovering the veil on their name by making them use their real name to challenge the infraction of their rights. some of these persons, spend a lot to maintain themselves although antiretroviral drugs are distributed free, prosecuting a case in nigeria especially with attendant appeal is cost intensive. the legal aid council and other humanitarian stakeholders should avail persons living with hiv or affected by aids whose rights have been infracted upon, particularly by unlawful termination of their employment to free legal services. 5. conclusion it is trite that nigerian law prohibits workplace discrimination on the basis of an employee’s hiv status. aside the 1999 cfrn, the hiv and aids (anti-discrimination and prohibition) act 2014 and the national guideline for testing counselling 2011 were put in place to ensure that the rights of hiv positive employees are protected. while section 8(1) of the labour act empowers an employer at his cost, to undertake pre and even postemployment routine medical testing of its employees, same must not be done arbitrarily in violation of the rights of an employee. the nicn has taken a protectionist stance in cases of employment discrimination on the basis of an employee’s hiv status declaring wrongful termination based on same. award of damages in such situation, is beyond the traditional quantum calculated based on the amount the employee is entitled in accordance with the length of notice to be given for the employment to be lawfully terminated. this is usually done in regard of the unquantifiable hardship, deprivation, humiliation and stigmatisation which the act of discrimination has exposed the employee to and as a deterrent. 6. recommendations based on the findings about and the need to stem this negative tides of workplace discrimination based on hiv status, the following recommendations are hereby made 1. the quantum of damages awarded in cases of hiv positive status instigated employment termination should be punitive to have deterrent effect. it is further recommended that whenever the nicn has the opportunity to http://10.17561/tahrj.v20.7754 termination of employment based on employee’s hiv status: the response of the national industrial court of nigeria the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 22 adjudicate on the issue of quantum of damages to be awarded in cases of termination due to employee’s hiv status, its decision herein should be jettisoned as a precedent because as far as award of damages is concerned, the decision is not a good precedent as it cannot achieve the end of deterrence. 2. if there is an appeal by the defendant to the court of appeal which is the final court on such matters, the claimant should cross appeal seeking for an upwards review of the damages awarded by the trial court. 3. furthermore, to stem the ugly tide of hiv discrimination at the workplace, employers should put in place workplace policy that prohibits discrimination on account of an employee’s hiv status. 4. moreover, the legal aids council of nigeria (lacn) and other humanitarian bodies within the justice sector should avail free legal representation to employees who have had their employments terminated on account of their hiv/aids status. this is to absolve employees or persons whose employment have been terminated on account of their hiv/aids positive status from the cost of litigation which could be cumbersome and may likely restrain them from seeking legal redress. 5. to protect the dignity of employees whose employment have been terminated because of their hiv positive status, giving the tendency of them being stigmatised, the court should consider allowing them bring and maintain actions against their employers under pseudo names instead of their real names; such cases should be heard in the chambers of the judge or in camera. 6. also, both public and private stakeholders within and without the medical sector, should engage in rigorous public enlightenment on the negative effects of hiv/aids discrimination/stigmatisation to ensure that people appreciate the ills of these vices. 7. moreover, adequate support should be given to person infected or affected by hiv/aids by ngos and government agencies such as national action committee on aids. references adejumo, 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(2005) ‘social consequences of hiv/aids: stigma and discrimination in the workplace in nigeria’ being a paper presented at the xxv international population conference held at the vinci convention centre, tours, france, 18 – 23, 1-20. http://10.17561/tahrj.v20.7754 https://doi.org/10.1371/journal.pone.0143749 http://www.ialsnet.org/meetings/labour/papers/dakas-nigeria.pdf http://www.ialsnet.org/meetings/labour/papers/dakas-nigeria.pdf https://doi.org/10.2307/3583183 https://doi.org/10.47348/anulj/v8/i1a5 https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ https://pubmed.ncbi.nlm.nih.gov/?term=monjok%20e%5bauthor%5d https://pubmed.ncbi.nlm.nih.gov/?term=smesny%20a%5bauthor%5d https://pubmed.ncbi.nlm.nih.gov/?term=essien%20ej%5bauthor%5d https://www.uua.org/offices/people/allison-hess http://../../dominion/desktop/in%20progress/knotts https://www.uua.org/international/blog/universal-indivisible-and-interdependent-human-rights https://www.uua.org/international/blog/universal-indivisible-and-interdependent-human-rights mary-ann onoshioke ajayi; david tarh-akong eyongndi the age of human rights journal, 20 (june 2023), e7754 issn: 2340-9592 doi: 10.17561/tahrj.v20.7754 25 nwauche, e. s., “the right to privacy in nigeria” review of (2007 1 (1) nigerian law and practice 64-65. odimegwu, c. o. akinyemi, j. o. and alabi, o.o., “hiv-stigma in nigeria: review of research studies, policies, and programmes”. https://www.hindawi.com/journals/ art/2017/5812650/ accessed 20 september 2022. ogunyemi, a. o., adubiaro, f. m., oluwole, e. o., somefun, e. o., and olubodun, t., “stigma, discrimination and non-disclosure among young people living with hiv in lagos, nigeria” (2022) 41(106) pan african medical journal 1-12. okene, o.v.c. and akani, n.k. “human dignity and human rights: the nigerian question” (2019) 19 maiduguri law journal, 199-200. okongwu, o. c, “perception of sex discrimination and sexual harassment among employees in nigeria: a comparative study of nigerian and the british employee protection laws” (phd thesis, de montfort university, and leicester 2017) 89. onyemelukwe, c, “discrimination on the basis of hiv status: an analysis of recent developments in nigerian law and jurisprudence” (2017) 17(3) international journal of discrimination and the law 160-179. https://doi. org/10.1177/1358229117727415 otuturu, g. g. “powers and jurisdiction of the national industrial court in the resolution of labour disputes in nigeria” (2010) 9(1) nigerian journal of labour law and industrial relations 35; oyediran k, oladipo o, anyanti j. “hiv/aids stigma and discrimination in nigeria” paper presented at xxv international population conference, international union for the scientific study of population (iussp); july 18–23, 2005; tours, france. http://www.iussp2005.princeton.edu/download.aspx/submissionid=51685 accessed 20 december 2021. oyewo, o., modern administrative law and practice in nigeria. lagos: university of lagos press and bookshop ltd., 2016. utulu s.n, lawoyin t.o. epidemiological features of hiv infection among pregnant women in makurdi, benue state, nigeria. (2007) 39(3) journal of biological science, 397–408. https://doi.org/10.1017/s0021932006001489 uwakwe, f.c. and aloh, j. n. “cultural practices and human rights implications on hiv/ aids discrimination and other related issues in nigeria” (2019) 10(1) nnamdi azikiwe university journal of international law and jurisprudence 20-31. received: 19/03/2022 accepted: 05/12/02022 http://10.17561/tahrj.v20.7754 https://www.hindawi.com/journals/art/2017/5812650/ https://www.hindawi.com/journals/art/2017/5812650/ https://doi.org/10.1177/1358229117727415 https://doi.org/10.1177/1358229117727415 http://www.iussp2005.princeton.edu/download.aspx/submissionid=51685 https://doi.org/10.1017/s0021932006001489 termination of employment based on employee’s hiv status: the response of the national industria abstract 1. introduction 2. adewunmi akinola v. ocean marine solutions ltd. in perspective 2.1. defendant ’s argument before the court 2.2. claimant’s argument before the court 2.3. decision of the court 3. hiv/aids discriminations as a human rights violation 4. matters arising from the decision in adewunmi akinola v. ocean marine solutions ltd. 5. conclusion 6. recommendations references assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 1 assembling containment at european union borders: between inclusion and exclusion martino reviglio1 abstract: the european union migration governance is characterised by non-linearity and complexity. such governance represents the competition of a multitude of actors that compete for power and visibility. the policies designed by its member states based on the decisions of the european court of human rights oscillate between an inclusive and an exclusive migration governance approach. a concept that can offer a comprehensive understanding of the social and normative dynamics that transformed the mediterranean sea as a space of inclusion and exclusion is assemblage. the article suggests that the eu and its member states design migration governance policies on an instrumental assemblage of borders, territory and human rights. from the discussion of these assemblages, it emerges how the compromise developed by the european court of human rights contributed to further exclusion and human rights violations in the mediterranean sea. thus, assemblage offers a critical perspective on the normative limits of the migration management policies unfolding at eu borders. keywords: european union, migration governance, european court of human rights, assemblage, human rights. introduction in the past years, the european union (eu) faced a migration governance dilemma (geiger & pécoud, 2010). the policies developed so far by its member states oscillate between an inclusive and an exclusive migration governance approach. these opposing approaches are based on different normative outlooks that recognise a universal understanding of human rights and a statist one that recognises the state as the ultimate authority to initiate human rights protection. to understand what are the theoretical before than the practical premises that shaped the mediterranean sea as a space of both inclusion and exclusion it is essential to identify the theoretical components from a legal philosophical perspective. the article suggests that in the development of this compromise there has been an instrumental assemblage (sassen, 2008) of three concepts or components: (i) borders; (ii) territory; (iii) human rights. each of these components has diverse interpretations in legal and social theory that can be instrumental for diverse purposes as in the case of migration governance. the assemblage of these concepts has been used instrumentally to transform the mediterranean sea into a space of both inclusion and exclusion depending on the political objectives of eu migration governance. assemblage thinking has been explored theoretically and methodologically by scholars in different disciplines to generate new knowledge in different social realities. as 1 research associate. international university college of turin, italy (martino.revigliodellaveneria@unito.it). https://doi.org/10.17561/tahrj.v21.7773 mailto:martino.revigliodellaveneria@unito.it assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 2 savage (2020) suggests in the literature scholars have explored the concept of assemblage in a vast array of social phenomena, from international relations (acuto & curtis, 2014), various “global assemblages” (ong & collier, 2005) and the formation of cities (mccann & ward, 2011), to particular policy formations such as pig farming practices in the european union (dunn, 2005), forest management practices in indonesia (li, 2007), and industries policies in new zealand (prince, 2010). in the migration studies literature, the concept of assemblage has been under-explored. yet recently some articles with different elaborations on the concept of assemblage emerged. these studies range from the remittances in postsocialist countries (rubinov, 2014), the assemblage of migrants' temporalities (collins, 2018) to migration policy assemblages in turkey (düvell, 2019) and the biopolitics of migration assemblages (wiertz, 2020). however, most of these works use the concept of assemblage without a solid elaboration of the many and at times contrasting characteristics of the concept itself. by adopting an assemblage approach, scholars of migration can move beyond simplistic and linear models of migration and explore the complexity, contingency, and interconnectedness of migration processes. this can lead to a more nuanced understanding of the factors shaping migration and the diverse experiences of migrants and host communities. the article explores how assemblage can be used to explain heterogeneous elements that form contemporary eu migration governance. in doing so, the article has a twofold aim first it applies the concept of assemblage to eu migration governance that in the literature is still underexplored; second, it shows how the concepts of borders, territory and human rights are socially constructions that can be used instrumental to pursue an exclusive or inclusive migration policy. the article aims to shed light on some specific dynamics of eu migration governance by identifying how the assemblage represents a “political” decision that transforms the sea in a space of containment. the assemblage has to be understood as a broad conceptual descriptor appropriate to explore heterogeneous systems characterized by non-linearity and complexity. yet it is important to stress that these assemblages that the eu and its member states design from the decisions of european courts – cannot be considered causal. a causal analysis demands significant empirical data to account for the real efficacy of, first, human rights courts' decisions on truly affecting states' migration policy; second border management to control migration in practice. thus, the paper suggests that some dynamics indicate that states design policies that are a logical answer to the compromise that the courts worked out. the article is organised as follows. section 1 introduces and the concept of assemblage in the eu migration governance. section 2 discusses how borders changed over time and how those are conceptualised in the assemblage. section 3 explores territory as a critical concept for the eu migration governance showing how those are assembled in migration governance. then, section 4 offers a theoretical perspective on human rights to identify the different and times contrasting elaborations emerging in the assemblage. to do so, the article investigates different disciplines following an interdisciplinary perspective drawing from border studies, law, and social theory. finally, section 5 concludes by suggesting how the assemblage of borders, territory and human rights can offer new insights in the emerging field of assemblage thinking. https://doi.org/10.17561/tahrj.v21.7773 martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 3 1. the concept of assemblage in migration governance the first conceptualization of assemblage can be traced to the work of french theorists gilles deleuze and félix guattari (1988). starting from this first conceptualization, in the social sciences in recent years there have been more elaborations on the concept of assemblage (marcus & saka, 2006; phillips, 2006; sohn, 2016). assemblage can be employed in three ways: first, as a broad descriptor able to combine heterogenous elements; second, as an ethos committed to explaining the world; and third, as a concept related specifically to the conceptualizations of deleuze and guattari (anderson & mcfarlane, 2011, p. 125). another point is that in an assemblage “heterogeneous elements can hold together without actually forming a coherent whole” (allen, 2011, p. 155). others propose to frame assemblage theory “[..] as a conceptual toolbox that is well suited to explore complex systems characterized by non-linearity and far-from-equilibrium operating trajectories” (sohn, 2016, p. 186). indeed, there are many elaborations of the concept of assemblage in different disciplines (delanda, 2016). yet here the point is not to present a comprehensive account of the concept of assemblage. instead, in the article the concept of assemblage is intended in its most descriptive sense without any kind of theoretical conceptualization based on deleuze and guattari works. the article follows the approach developed by sassen (2008) that uses the concept as a descriptor able to explore complex structures by combining heterogeneous elements aimed at explaining social processes (sassen, 2008, p. 5). moreover, the concept of assemblage should be used as a tool not as a simple result (aneesh, 2017, p. 129). in doing so, it may be possible to identify the different dynamics that come to form the assemblage of borders, territory, and human rights in eu migration governance. the migration assemblage discussed in the next sections is an important instance in which the concept of assemblage can be used to identify non-linear dynamics that characterize eu migration governance. it is important to stress that the components assembled (1) are interdependent but maintain a level of specificity; and (2) have variable levels of performance. to fully grasp the concept of assemblage it needs to be elaborated as a descriptor for phenomena characterized by complexity and heterogeneity. the article suggests that the concept of assemblage can be fruitful for migration studies only if intended as a container for complex social and political phenomena such as the control of the european borders. thus, the concept of assemblage provides a valuable framework for understanding the complexity of migration governance in the european context, where diverse elements come together to shape policies and practices that can have significant implications for migrants and human rights. the migration governance developed by the eu and by the member states overlooking the mediterranean sea from a legal perspective has been often designed on the cases decided by human rights courts and quasi-judicial bodies that decide between two competing traditions of political philosophy. the first is a universal/inclusive framework that considers human rights as integral to the individual independently from the compliance with formal conditions set by immigration management policies. the second tradition is a statist/exclusive one that sees the state as the sole authority able to give access to its territory and to set the legal conditions for access to human rights protection (thomas, 2013, p. 412; paz, 2016, p. 6). https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 4 the transformation of the mediterranean sea into a space of both inclusion and exclusion it's the representation of the jurisprudence developed by the european court of human rights (paz, 2016, p. 7). the court adopted the territoriality-based compromise between inclusion and exclusion. in doing so, it reinforces the idea that human rights protection is dependent on the physical presence of the migrant on the territory. on the one hand, the court has articulated an inclusive and universal principle of human rights protection. on the other hand, it has produced a new concept of territoriality by adopting the territoriality-based compromise as furthered exclusion (paz, 2016). to construct an inclusive governance policy, it is necessary to adopt a universalist understanding of human rights protection. by inclusive policy, it is meant one that gives direct access to the territory of the destination state and that considers the borders as a point of entrance to human rights protection. in doing so, the migrant shall be protected from the moment he or she is in proximity to the borders of the destination country. inclusion here means temporary protection while awaiting the outcome of the protection formal processes set out by the destination state. this indeed does not prefigure any kind of inclusion within the polity of the state. migrants are saved because found in distress at sea and are provided with temporary shelter and human rights protection. a universalist reading of human rights protection presupposes that the lives of the migrants in distress shall always be saved and given access to protection. the exclusive or statist governance initiates protection of migrants if they comply with the formal conditions set out by the state which require the individual to be present in the territory of the state. in doing so, it reinforces the idea of territoriality because “the state has the sole authority to decide who may enter its domain, under what conditions and with what legal consequence” (paz, 2016, p. 1). in this second approach, the state has absolute dominion over the border and can permit entrance only to those individuals who comply with the formal conditions of its migration governance regime. merely getting in the proximity of the border does not by itself represent a condition to activate protection by the state. moreover, jurisdiction initiates only upon entering the territory, thus proximity does not entail any legal obligation for the state. the state utilizes defined physical boundaries to stop migrants from getting in, either by land or by sea, so that their entry does not activate the state´s obligations to protect migrants. borders, territory and human rights are contested concepts that if assembled as in the case of the cases decided by the echr illustrate a coherent assemblage that contributes to transforming the mediterranean sea as a space of both inclusion and exclusion. the article explores different disciplines following an interdisciplinary perspective drawing from geography to law and social theory. in particular, the three concepts have not received enough attention in migration scholarship from a legal perspective. moreover, these concepts must be theoretically and historically grounded to show their transformations over time. in doing so, it is possible to identify the latest developments and explain how these changes have contributed to inclusionary and exclusionary policy assemblages. the next sections offer an investigation of the three components of the assemblage to show how these are assembled in different ways to pursue exclusive or inclusive https://doi.org/10.17561/tahrj.v21.7773 martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 5 migration governance. the three components can be conceptualised as different and at times contrasting ways to achieve the overall political objective: curtailing the arrivals of migrants at eu borders. 2. borders we live in a time in which borders in certain contexts disintegrate due to the forces of neoliberal globalization (de sousa santos, 2002; novak, 2019). yet in other contexts, in relation to human movements, new borders emerge as obstacles to human circulation and movement (leòn & overbeek, 2015; ramji-nogales, 2016). in this scenario, for some we assist at a continuous process of border reconfiguration along lines of political and military power (cuttitta, 2007, p. 7). yet for others, the military and economic functions of borders are declining but are expanding in the control of irregular migrants (andreas, 2003). in the last forty years, we made incredible steps in abolishing the national borders that impeded the movement of capital nevertheless we made no progress with the free circulation of human beings (popescu, 2011). we are going towards the development of an idea of “fortresses” not only in europe but also around the world (albrecht, 2002). when we study borders, we should look at them as spaces not just as lines of division (zanini, 1997, p. xvii). it is in this space that different discourses produce the border in processes of “constant encounter, tension, conflict and contestation” (de genova et al, 2015, p. 69). in doing so, borders emerge as spaces in which a multitude of actors participate in the process of border configuration. (vaughan-williams, 2009; geiger & pécoud, 2017). yet it is important to stress that these processes of bordering do see the participation of migrants that influence and shape the space of the border (mainwaring, 2016). thus, it is necessary to understand that border configuration does not represent a simple and linear binary logic of structure/agency but as a representation of a more complex environment in which a crucial and active role is played by migration (de genova et al, 2015). this articulation of bordering signals that in many cases the incentive for border configuration is given by migrants' movements and struggles (de genova, 2017). to comprehend the struggles and opposite discourses at the border it is important to realize that the border is the creation of two antagonist forces with different power balances that struggle either to open or to close the border (chetail, 2016; abizadeh, 2008). according to balibar (2012) trying to define what a border is runs the risk of “going around in circles, as the very representation of the border is the precondition for any definition” (balibar, 2012, p. 74). balibar continues suggesting that borders possess an “equivocal character”. (ibid, p. 76). the precondition for any attempt to define a border is to recognize that the border is the representation of the social and that any representation of the social is based on a conceptualization of the border (novak, 2017, p. 851). in the constructivist approach, borders are spatial categories that change with social changes and are characterized by fluidity in the daily manifestation of borders (popescu, 2011). moreover, in the design of borders pursued by social agencies, we do see a strategic use of borders as a resource to satisfy specific policy objectives as the eu migration governance https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 6 shows (sohn, 2016). other conceptualization close to the marxist tradition stresses that borders are functional to accumulation because are the production, or the reproduction of different capitalist geographies (anderson, 2012; de genova, 2016). it can be suggested that borders represent the result of the competition of different social and economic forces to design a space that is dynamic, fluid, and can be used as a resource for political reasons. in this spectacle, borders underwent significant transformations in relation to the number (proliferation) and the diversity (heterogenization) of borders (mezzadra & neilson, 2013, p. 3). thus, borders are not merely geographical lines but complex social institutions that see the participation of several actors that create, manage, and shape borders (hampshire, 2016, p. 549). borders are not static nor neutral but historically contingent political dynamics of space division (vaughan-wiliams, 2009, p. 48.) as nail (2016) suggests “[…] contemporary borders are largely hybrid structures composed of a mixture of different historical bordering techniques” (nail, 2016, p. 17). these “bordering techniques” are particularly visible in the eu migration governance unfolding in the last years of the so-called “migration crisis”. in fact, in designing these management policies these actors attribute to the border a performative function (balibar, 2012, p. 79; johnson et al, 2011): the border can include or can exclude (agnew, 2008, p. 180). indeed, the capacity to either include or exclude should be regarded as a significantly flexible instrument. in fact, inclusion and exclusion should not be considered in opposition but in continuity with each other (mezzadra & neilson, 2013, p. 7). the elaborations of the concept of border presented above can be evaluated with the eu migration governance. over the last 20 years, the eu has designed a complex multilateral border regime (hampshire, 2016, p. 541; campesi, 2018, p. 198) that aimed at creating a “securitized” and “humanitarian” european border (pallister-wilkins, 2022; cuttitta, 2018). on the one hand, the eu has developed a legal and quasi-legal framework that encompasses directives, regulations, and bilateral and multilateral agreements with third countries. on the other hand, the policy framework was based on the concept of “integrated border management” (ibm) that aims at redefining the “political geography of border control” by the participation of different national and supranational actors and agencies (campesi, 2018, p. 199). the significance of the eu approach became evident in light of the so-called “migration crisis” during which it appeared evident to the eu the need to reinforce external border controls. the eu inaugurated this kind of border management policy during the valletta summit in 2015.2 nonetheless, the main aim of the eu was to boost cooperation with third countries by designing bilateral or multilateral agreements, often in the form of soft law, to reinforce european border management. examples of the externalizing migration management policies instigated by the eu are the turkey-eu statement (2016), the libya-italy memorandum of understanding (2017), and the morocco-spain (2019) agreement (moreno-lax & lemberg-petersen, 2019, p. 12). what the eu has developed is 2 see the priorities of the action plan adopted during the valletta summit in 2015. available from: https:// www.consilium.europa.eu/media/21839/action_plan_en.pdf https://doi.org/10.17561/tahrj.v21.7773 https://www.consilium.europa.eu/media/21839/action_plan_en.pdf https://www.consilium.europa.eu/media/21839/action_plan_en.pdf martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 7 a complex system of national and international actors motivated by the aim of reinforcing the control of european borders to diminish the arrival of migrants and the death at sea (cuttitta & last, 2019; steinhilper & gruijters, 2018). the border is transformed into a space, determined “from distance” by eu governance structures, in which legal obligations and international responsibilities are blurring. these processes are part of a wider transformation, particularly evident in the european contest of “remote control” (guiraudon & lahav, 2000, p. 178) or “control from distance” (bialasiewicz, 2012, p. 852) or more generally of “shifting borders” (shachar, 2020). it follows that the actors involved in migration governance aim to move the control activities to third countries through a series of legal and quasi-legal instruments that are part of externalization policies (moreno-lax & lemberg-petersen, 2019). a securitized border displays two characteristics: first, it renders the containment of migration flows; second, it enables an externalization of search and rescue activities to third countries. it follows from the above analysis that borders are contested concepts that can be assembled in different settings to obtain a specific policy outcome. in the assemblage based on the decisions of european courts – borders can include or exclude. the humanitarian or inclusive narrative considers saving lives at sea and addressing the root causes of global migration as the priorities for a human and decent migration governance policy (cuttitta, 2018). to do so, borders are regarded as points of access to the protection of human rights (paz, 2017). in fact, for migrants to trigger the protection is sufficient to be in proximity of the border thus jurisdiction is aligned with physicality and grounded in proximity (paz, 2016, p. 26). by contrast, borders can be conceptualized as an exclusive migration governance strategy by following a deterrence narrative (gammeltoft-hansen & hathaway, 2014). it follows that borders permit entrance only to those individuals who comply with the formal conditions set out by the state. however, in some cases countries put in place instruments to make r more difficult to reach the border as shown in the externalizing policies pursued by spain and italy (ghezelbash et al., 2018). they do so by avoiding any direct international responsibilities. in other words, in the exclusive strategy borders are regarded as an obstacle to access and thus to the protection of human rights (paz, 2017). for migrants to trigger the protection is not sufficient to be in proximity of the border but they must access the border to initiate state protection (paz, 2016, p. 26). thus, the article highlights the dynamic and multifaceted nature of borders in contemporary society, emphasizing their role in shaping migration governance and human mobility. it underscores the importance of considering borders as complex spaces where various forces and actors interact and compete, leading to different outcomes and policy objectives. the dichotomy between inclusive and exclusive border strategies is particularly relevant in the context of migration governance, where the balance between security and human rights remains a significant challenge.inizio modulofine modulo the next section explores the concept of territory in its specificity to show how this concept can be instrumental in the exclusion of migrants from accessing physically the territory of https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 8 the destination state. moreover, territory represents a contested concept that has different and at times contrasting elaborations depending on which discipline is studied. 3. territory territory is an indefinite term or concept that usually refers to a section of space occupied by individuals, social groups, or institutions (gregory et al, 2011, pp. 746-747). other elements that emerge in the process of space occupation according to hassner (1997) are material elements such as land, functional elements such as the control of space, and symbolic dimensions like social identity (hassner, 1997, p. 57). indeed, these elements do represent what for political geographers has always been territory: the concurrent expression of the connections between space, power, and knowledge (agnew, 1994; paasi, 2003). nonetheless, in other elaborations of the concept, there is a significant link with the concept of sovereignty as the last authority that institutionalizes and maintains territory (flint & taylor, 2018, p. 156). these processes of territory formations are part of what paasi (2003) calls “the institutionalization of territories” meaning “the process during which territorial units emerge as part of the socio-spatial system and become established and identified in social action and social consciousness” (paasi, 2003, p. 113). the concept of territory has been under investigated due to its volatile nature (elden, 2013, p. 3.; banai et al, 2014, p. 99). gottman (1975) presents one of the first investigations in the concept of territory and its relationship with state authority, he argues that “the concept of territory, with its material and psychological components, is a psychosomatic expedient necessary to preserve freedom and the variety of separated communities in an interdependent and accessible space” (gottmann, 1975, p. 45). indeed, the construction and in particular the control of a territory needs a constant process of exchange as sack (1986) puts it “they are the results of strategies to affect, influence, and control people, phenomena, and relationship” (sack, 1986, p. 19). it follows that territory as a component is used strategically to influence but more importantly to control people. brought to its conclusion such elaboration of territory prefigures an inside/outside dichotomy that can trigger exclusion and closed border policies (vaughan-williams, 2008, p. 336; basaran, 2008). the dynamics that shape territory in geographical and political dimensions should not be understood as a-historical because in doing so there is a risk of missing its complexities (elden, 2013, p. 6). moreover, as argued by foucault (2007) “territory is no doubt a geographical notion, but it's first a juridico-political one: the area controlled by a certain kind of power” (foucault, 2007, p. 176). the only institutional actor with the power to design territory as a juridic-political category is the nation state. yet it is crucial to recognize the complexity of territory as a concept otherwise as sassen (2013) points out, “in much scholarly writing, territory has largely ceased to work analytically because it has been reduced to a singular meaning nation state territory” (sassen, 2013, p. 22). thus, to overcome what agnew (1994) called the “territorial trap” (agnew, 1994), it is necessary to go beyond the linear correlation nation-state/ territory to shed light on the multitude of actors and forces that do shape territory as a dynamic and performative concept. https://doi.org/10.17561/tahrj.v21.7773 martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 9 for some scholars, it appears evident that in the last decades, we moved beyond the westphalia system based on state territoriality (banai et al, 2014). in this movement away from such a system it became popular the idea of “the end of territories” (badie, 1996). yet for others, westphalia's territoriality is still present nowadays (khan, 2012). nonetheless, what we are witnessing is not exactly an “end of territories” but a constant process of territorial reconfiguration along lines of economic and political space that can shape the construction of territoriality (brenner & elden, 2009, p. 374). the construction of territoriality from a legal perspective is still conceptualized at the national level and successively is projected at an international level. it follows that the nation states despite being supported by other multilateral institutions maintain the legal capacity to project an idea of territory and successively to construct territoriality. instances of these dynamics can be recognized in the territoriality law-making of different nation states (mickelson, 2014). examples following from migration management show the use of executive soft law agreements to securitize border control like in the libya-italy memorandum of understanding. further, at eu level territoriality is designed with soft law instruments like in the eu-turkey statement. following sassen (2013), these instances show that territoriality, as a legal construct, is not directly related to territory because it can go beyond the territory itself. in so doing, the meaning of territory transcends its meaning by encapsulating the capacity to design “territorial informal jurisdiction” (sassen, 2013, p. 23). here the theoretical point emphasized by sassen (2013) that opens new theoretical perspectives is the idea that these complex spaces emerge as “distinct territories inside national-state territory itself” (ibid). territory has a critical relation with jurisdiction at the border. territory in fact should be regarded as a geographical domain in which people, through institutions, exercise jurisdiction over a group of people (moore, 2015, pp. 26-27). for the policies exercised by a state at the border, the relation between a specific conceptualization of territory and jurisdiction is visible in the application of migration governance policies. moreover, this conceptualization is based on the compromise developed by the courts and quasi-judicial institutions that transformed the human rights application to what paz (2017) calls “access” means the ability to establish territorial presence (open territoriality), or to enter the territory (strong territoriality) or to come within the control of the state or its agents (neo-territoriality) (paz, 2017, pp. 602-603). therefore, affluent states were able to design a system of governance that is significantly linked to the concept of territory and its conceptualization can achieve an inclusive or exclusive governance policy (cuttitta, 2018). while designing inclusive migration governance strategy states conceptualize territory in relation to access, jurisdiction, and proximity in the following ways. first, human rights protection is not dependent on the “access” to the territory of migrants but on the simple proximity to the territory. in doing so, states reinforce the concept developed by the ecthr in jamaa vs. italy that maintains that human rights jurisdiction is “essentially territorial” and is aligned with physicality and proximity (paz, 2016, p. 26). in this case, the territory is conceptualized as an open point of access for migrants. territory represents https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 10 a space not only dominated by the law of the state but also as a space of humanitarianism in which the “right of escape” is defended independently from the compliance of the rule of the state (di cesare, 2017, p. 18). in so doing, territory becomes an inclusive concept that reinforces the idea that the simple territorial presence (open territoriality) triggers human rights protection going beyond the statist vision of the concept of territory. human rights protection applies extraterritorially meaning independently from migrants' access to state territory. it follows that states assume an extended view of human rights that if brought to the extreme can become an open borders policy that sees no territorial limitation to human rights protection (ibid, p. 28). by contrast, designing an exclusive migration governance strategy brought to the extreme can become a closed borders policy. to do so, it is first necessary to recognize human rights jurisdiction as linked to access to the territory because migrants must enter the territory (strong territoriality) and come under direct control of the state (neo-territoriality) (paz, 2017, p. 603). in this approach jurisdiction is rooted in strong territoriality meaning that human rights obligations are strictly territorial (paz, 2016, p. 31). second, state jurisdiction and thus state responsibilities will manifest themselves only if there is direct access to the territory of the destination state. yet this means that migrants must get close enough to the border to be considered for state protection. in conceptualizing territory, some states pursue policies that make it more difficult for migrants to reach the territory of the state. for instance, states externalize search and rescue operations to third states to avoid international responsibilities. the interplay between territory, jurisdiction, and human rights in migration governance is a critical aspect of understanding how policies are designed and enforced. the conceptualization of territory can have profound implications for the inclusion or exclusion of migrants and the protection of their rights. it illustrates the complex and dynamic nature of border control strategies in an evolving global context. the last concept of human rights is explored in the next section to show how the assemblage comes together to explain policy processes characterized by non-linearity and far-from-equilibrium operating trajectories. it further emerges how human rights can be conceptualised following a specific ideological understanding that transforms human rights as instruments of both inclusion and exclusion thus contributing to a migration governance assemblage. 4. human rights the human rights movements in the last decades have provided the globe with “emancipatory vocabulary and institutional machineries for people across the globe” able to design an international legal system that promotes a specific idea of justice. (kennedy, 2002). in other words, as macklem (2015) suggests, “human rights are the vocabulary of justice for our globalized world” (macklem, 2015, p. 1). nonetheless, these elaborations of human rights as promoters of justice worldwide cannot be regarded solely as a positive and dynamic force. while human rights in theory were instruments to promote justice, they also possess some critical features that make them problematic to accept tout court (frankenberg, 2014). first, human rights have not always complied with the aspiration of justice in part due to the dominance of a moral understanding of human rights (macklem, https://doi.org/10.17561/tahrj.v21.7773 martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 11 2015, p. 185). second, to design a system in which the search for justice is the primary objective, it is necessary to conceptualize human rights as an international legal entitlement able in theory to mitigate injustice across the world (ibid., p. 186). from a strictly legal point of view, human rights are international law norms. it appears from macklem's argument that human rights have a relation with the international legal order in at least three ways. first, human rights monitor the structural dynamics of the international legal order (lorca, 2017, p. 472). second, they mitigate the negative consequences of how the international legal order is designed. and third, the human rights framework, by controlling and mitigating, confers legitimacy to the international order. indeed, these arguments unfold in the language of human rights (lorca, 2017, p. 473). to unveil some of the dynamics that characterize the human rights discourse it is crucial to identify what the ideological premises of such an enterprise are. the pervasive relationship between human rights and the history of capitalism is acknowledged by badiou (2010) who argues that human rights involve a “cult of freedom (including, of course, freedom of enterprise, the freedom to own property and to grow rich that is the material guarantee of all other freedoms)” (badiou, 2010, p. 2). another criticism of the human rights enterprise is suggested by agamben (1998) who argues that human rights are used, "for the sake of the supposed representation and protection of a bare life that is more and more driven to the margins of nation-states, ultimately to be recodified into a new national identity" (agamben, 1998, p. 133). yet how it is possible to radically change human rights politics? marks (2009) offers an important point, she warns that "rather, there exist some “necessary factors”, in the shape of limits and pressures which orient change without actually predetermining it" (marks, 2009, p. 17). in other words, a project of mobilising human rights for radical democratic purposes now faces some very significant challenges and restrictions following from recent history of neoliberal capitalism (mcloughlin, 2016, p. 17). many scholars seem to agree that the human rights project was developed in the 1970s. yet some like klein (2007) suggest that the human rights movement developed in relation to the neoliberal project, and thus to understand human rights ideology we should concentrate on its relationship with the history of capitalism (klein, 2007; o'connell, 2007). others like moyn do accept the proposition that human rights emerged in the 1970s; however, they do not recognize the direct causal relation between the human rights project and neoliberalism (moyn, 2014). moyn (2014) argues that human rights and neoliberalism were developed in the same years and share some characteristics. nonetheless, they remain two parallel but separate projects (moyn, 2014). thus, indeed there is a critical relationship between neoliberalism and the human rights enterprise. nevertheless, it is rather difficult to argue about a direct causal relation. another important element of the human rights projects as pointed out by marks (2012) is the idea developed by some scholars such as raz (2010) and moyn (2014) of the “myth of presumptive universality” of human rights (marks, 2012). while the universality of human rights can be challenged, it is important to consider the difficulties posed by the human rights application. according to raz (2010), the human rights https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 12 project faces two problems: first, only limited practices exist to monitor and enforce the international protection of human rights; second, some claims of human rights are culturally biased and imposed by the west across the world (raz, 2010). hence, for some, the human rights movement can be regarded as a-political and a-ideological language aimed at enhancing global justice. however, the implementation of such a project is problematic, as koskenniemi (2010) points out “because there are no authoritative lists of prelegislative rights, political actors are always able to dress their claims in rights language” (koskenniemi, 2010, p. 49). in other words, human rights projects to maintain their ideological and political “independence” should not be committed to a specific theory of economic development, security, or any other “ideological” constraint (ibid, p. 54). perugini and gordon (2015) suggest that the being the human rights language unfolds in “the ethical, legal and practical construction of practices of domination around the world” (perugini & gordon, 2015, p. 11). perugini and gordon's book the human right to dominate offers some interesting and critical reflections that merit some attention. first, human rights and violence are not antithetical but coexist in the unfolding of human rights enterprises. second, they present historical instances that show the relationship between human rights and domination. third, they identify human rights as a language that frames events on legal and moral grounds to secure political legitimacy (ibid). thus, according to the authors, human rights “constitute a highly flexible political discourse with the capacity to be constantly appropriated, translated, performed, and retooled in different political arenas” (ibid. p. 12). in so doing, it is important to recognize the flexibility and performativity of human rights discourses and to make a further effort to detect the invisible relations between governments, international organizations, and ngos in pursuing global justice or domination. it is indeed difficult to agree with one of the two positions, but a useful exercise can be to present some features of the human rights language that are common to both streams. first, the power of human rights lies in the capacity to articulate moral or ethical convictions in legal international terms and successively support them by naming and shaming (murdie & davis, 2012). many actors participate in this complex exercise: governments, diplomacies, international organizations, and ngos, among others. second, these articulations are presented to the public opinion as neutral and a-political. in doing so, a “joint project” is enabled between different actors to engage in the effort of bringing global justice or domination around the world. third, human rights tend to be presented as universal legal entitlement to reinforce their moral and political legitimacy. fourth, a crucial role in promoting human rights narratives is played by activists (klein, 2007). human rights narratives cannot avoid the ontological construction developed from the end of the cold war (baxi, 2007; falk, 2008). on the one hand, a modern understanding of human rights considers human rights an instrument of exclusion. on the other hand, a contemporary understanding of human rights contemplates human rights as an instrument of inclusion (baxi, 2006). the article suggests that this dichotomy is displayed in eu migration governance. in the application of inclusive border management policies, a specific elaboration of the concept of human rights materialises. first, human rights are considered inherent to the individual independently from the individual compliance with https://doi.org/10.17561/tahrj.v21.7773 martino reviglio the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 13 formal conditions set by migration management policies (thomas, 2013). in doing so, human rights protection is initiated by the simple encounter between the state agents and migrants (mann, 2017). second, by following such a reading of human rights, state agents consider human rights as universal independently from the physical presence inside the territory of the destination country (paz, 2016). therefore, in the application of inclusive strategies, human rights jurisdiction is grounded in proximity to the border without any formal restriction of access to the territory. in the exclusionary strategy, human rights are grounded in physicality thus establishing territorial presence in the destination state or coming under the jurisdiction control of the state agents (paz, 2017). moreover, proximity does not entail any legal obligation for the state because jurisdiction is aligned with territory (paz, 2016). the legal protection depends on the establishment of a direct presence inside a state (paz, 2017). the main outcome of such an understanding of human rights is that states externalize interdiction thereby avoiding any direct fingerprint that would activate jurisdiction and human rights obligations (moreno-lax & lemberg-petersen, 2019). these externalization practices aim to reinforce the notion of contactless control by promoting contactless responsibility and contactless jurisdiction raising significant concerns for the ones in need of international protection (giuffré & moreno-lax, 2019). moreover, from several examples of multi-actors' contactless migration management, there emerges a tension between international responsibilities and jurisdiction (moreno-lax, 2020). the relationship between human rights, justice, and global governance is multifaceted and subject to various critiques and challenges. while human rights have the potential to be powerful tools for promoting justice and protecting human dignity, they can also be co-opted, selectively applied, and used to justify domination. the ideological premises of human rights, their connection to capitalism and neoliberalism, and their cultural implications all contribute to the complexities of their implementation and impact on global justice. in the context of migration governance, the application of human rights can vary significantly, leading to different outcomes for migrants and challenges related to jurisdiction and international responsibilities. thus, the theoretical concepts that compose what has been known as eu migration governance are often based on simplistic dichotomies. on the one hand, we see a statist, excluding, and closed category of human rights. on the other hand, we see a universalist, inclusive, and open category of human rights. yet the core argument here is that human rights as framed so far can dominate and exclude migrants. indeed, the positive power of human rights here is recognized. however, in a world dominated by affluent states, the positive discourse around human rights is strong and visible. yet it is important to shed light on the negative impact of human rights: exclusion of human beings based on ideological grounds that are persecuted through highly specialized infrastructure of knowledge and power. 5. conclusion assemblage is used as a descriptor able to explore complex structures by combining heterogeneous elements aimed at explaining social processes. the strength of the concept https://doi.org/10.17561/tahrj.v21.7773 assembling containment at european union borders: between inclusion and exclusion the age of human rights journal, 22 (june 2024), e7773 issn: 2340-9592 doi: 10.17561/tahrj.v22.7773 14 of assemblage is the ability to encompass the several concepts that compose migration governance policies by describing the intersection of these concepts. in doing so, the assemblage offers a critical lens that can be useful to identify some trajectories that in some instances may collide yet in other instances may not. nonetheless, independently from the level of performance, the assemblage is a fertile concept able to explore systems characterized by complexity, non-linearity, and dynamicity as eu migration governance. the eu migration governance is characterized by non-linearity and complexity. a multitude of actors compete for power and visibility and thus influence the design of migration governance policies. in particular, the eu and some of its member states have designed policies based on the compromise developed by the echr that transformed the mediterranean sea into a space of inclusion and exclusion. the article suggested that this transformation is based on an instrumental assemblage of borders, territory, and human rights. on the one hand, it indicates that the three concepts can be assembled in migration governance to design inclusive and exclusive policies. on the other hand, it is important to stress that these assemblages are interdependent but maintain a level of specificity. the article shows how assemblage can be a fruitful concept able to explore heterogeneous elements emerging in contemporary social processes. by assembling these concepts within an assemblage theory framework, researchers and analysts can provide a more comprehensive understanding of the complex dynamics that underlie the exclusion of migrants. this approach emphasizes the fluidity and contingency of these concepts and how they interact to shape migration policies and practices. it also highlights the potential for change and transformation in the assemblage through advocacy, policy reform, and shifts in public attitudes. the article contributes to the literature on migration and borders by offering an interdisciplinary outlook on how the concepts of borders, territory, and human rights can be assembled in inclusionary and exclusionary migration policies. by designing these policies states build upon the compromise between inclusion and exclusion developed by european courts. this system of “pragmatic” governance is followed to externalize and securitise the eu borders. in this scenario, it is important to reflect on how such concepts can be manipulated through legal language to exclude migrants from human rights protection as established by international law. thus, assemblage emerges as a prism to explain the intersection between different institutions that develop the eu migration governance. references abizadeh, a. 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(1997). significati del confine: i limiti naturali, storici, mentali. milano: bruno mondadori. received: 16th february 2023 accepted: 3rd october 2023 https://doi.org/10.17561/tahrj.v21.7773 https://doi.org/10.1177/0038038518759248 https://search.informit.org/doi/10.3316/agispt.20150678 https://doi.org/10.1111/j.1749-5687.2008.00054.x https://doi.org/10.3366/edinburgh/9780748637324.001.0001 https://doi.org/10.3366/edinburgh/9780748637324.001.0001 https://doi.org/10.1177/2399654420941 https://doi.org/10.1177/2399654420941 assembling containment at european union borders: between inclusion and exclusion abstract introduction 1. the concept of assemblage in migration governance 2. borders 3. territory 4. human rights 5. conclusion references right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 1 right to a fair trial in extraordinary conditions bohdan i. andrusyshyn1, yevhen v. bilozorov2, natalia m. opolska3, liudmyla f. kupina4 & olha v. tokarchuk5 abstract: the relevance of the study is determined by the necessity to generalize the problems of implementation of the right to a fair trial faced by various states in connection with quarantine restrictions, as well as the experience of the administration of justice under martial law. this made it possible to establish a common understanding of the right to a fair trial within the borders of the council of europe member states, as well as the means of solving the issue of justice by the ukrainian authorities in the conditions of the occupation and the military actions of the russian army. keywords: judicial system, trial, equality and non-discrimination, access to court, justification of decision, independence and impartiality of court. introduction justice is administered by courts in all states except for unlimited monarchies. court plays an important role in maintaining law and order in society. an effectively organized system of justice administration is the basis of economic, social and cultural development of a state, and implementation of the right to free personal development. s. fredman (2009), explaining the role of courts in the political process, indicates that courts cannot dictate choices to politicians, but must demand public justification of political choices regarding the human rights’ implementation. the presence of an effective judicial system is the basis of a democratic society formation. the effectiveness of the courts’ functioning is a factor in the state’s fulfillment of its obligations in the field of human rights. the court is usually seen as an essential element of a democratic society. society perceives the court as a body ensuring human rights, and is the guarantor of their provision; the court considers disputes between different people, including disputes between a person and a state. access to justice is considered as a component of the rule of law, which is “a central notion in legal thought and in the practice of democratic states” (buyse et al., 2021). “in a civilized society the 1 faculty of political science and law national pedagogical dragomanov university, 01601, 9 pyrohova str., kyiv, ukraine (abihorse@ukr.net). 2 institute for academic work no. 2, national academy of internal affairs 03035, 1 solomjanska sq., kyiv, ukraine (b_e@ukr.net). 3 department of public law disciplines at vinnytsia state pedagogical university named after mykhailo kotsiubynskyi, 21000, 32 ostrozhsky str., vinnytsia, ukraine (opolskapravo@gmail.com). 4 department of public legal research. scientific research institute of lawmaking and scientific legal expertise. national academy of legal sciences of ukraine, 61000, 70 pushkinska str., kharkiv, ukraine (liudmila.kupina@gmail.com). 5 department of theory and history of state. national pedagogical dragomanov university, 01601, 9 pyrohova str., kyiv, ukraine (9-3@ukr.net). http://10.17561/tahrj.v20.7539 mailto:abihorse%40ukr.net?subject= mailto:b_e%40ukr.net?subject= mailto:opolskapravo%40gmail.com?subject= mailto:liudmila.kupina%40gmail.com?subject= mailto:9-3%40ukr.net?subject= right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 2 main regulator of human behavior is law and, accordingly, the rule of law is recognized there” (kuchuk et al., 2019). that is why the courts’ activity is constantly in the center of scientists’ attention. although there are still some insufficiently studied aspects of the judiciary functioning. thus, we fully agree with the conclusion of t.a. guimaraes (guimaraes, et al., 2018), a.o. gomes and e.r. guarido filho (2018) on the lack of the theory of justice administration. c. guarnieri and p. pederzoli (2020) indicate that legal aspects are mainly studied: “in the european context, academic lawyers have traditionally cultivated the study of courts, judicial procedures and jurisprudence, mostly favoring a legal dimension”. although, in our opinion, this is quite obvious, considering that under the rule of law, law itself is the main regulator of social relations. the publication “public and private justice: dispute resolution in modern societies” should be cited separately because it discusses how the european court of human rights defines “reasonable time” and access to the courts; however, the main purpose of this study is to compare and assess the national legal systems of various european nations (uzelac & van rhee, 2007). the practice of the european court of human rights contains other elements of the right to a fair trial. the right to a fair trial is the most studied issue. mindaugas simonis (2019) considers the right to a fair trial as “the mother of justice”, although scientists’ attention is also paid to certain aspects of this right. for example, e. ng (2022) explored the rights of the accused to a fair trial, noting that this right is an internationally recognized fundamental right. the subject of the study by m. dymitruk (2019) was the provision of the right to a fair trial in conditions of the development of information technologies, and the use of artificial intelligence in the field of justice. s. bakhshay and c. haney (2018) examined the impact of biased media coverage on the right to a fair trial (in a jury trial). however, it should be noted that there is no established understanding of the right to a fair trial essence today. one of the reasons for this, in our opinion, is the different interpretation of the “justice” concept in different societies. the spread of covid-19 in 2019 and the introduction of restrictive measures by states had a significant impact on human rights implementation. a great number of rights were limited. restrictions imposed by states also affected the right to a fair trial. “it is clear that the functioning of national judicial systems has been severely disrupted. this limited functioning of courts impacted the individuals’ right to a fair trial guaranteed, in particular, under article 6 of the european convention on human rights” (kamber & kovačić markić, 2021). the issues of implementing the right to a fair trial in the context of the fight against covid-19 became the subject of research by k. kamber and l. kovačić markić (2021), r.d. nanima (2020), b. perezhniak, d. balobanova, l. timofieieva, o. tavlui, yu. poliuk (2021). ensuring the right to a fair trial in the conditions of war is less researched, and this fact determined the relevance of the theme chosen. ukraine’s experience can be positive in this aspect, considering that as a result of russia’s armed aggression against ukraine http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 3 in 2014 and especially in 2022, the ukrainian authorities had to take measures for the functioning of courts and the administration of justice (knyazev, 2022). the issue of ensuring the right to a fair trial for ukraine has moved from a theoretical level to a practical one, which makes it possible to analyze the specifics of this right implementation, and to identify positive and negative aspects of the state authorities’ activities. thus, the purpose of this study is to clear the features of ensuring the right to a fair trial in extraordinary conditions, in particular, in conditions of martial law. the materials of the article can be used for further research on the right to a fair trial and its individual components. article’s fundamental provisions might become guidelines for states to improve national legislation to ensure the right to a fair trial in extraordinary conditions. basic concepts and methods for revealing the topic of the right to a fair trial in this study, the content of the right to a fair trial is formed based on the analysis of the practice of the european court of human rights. these elements are not “invented” by us; they are part of the established practice of this court. the characteristics of each of the elements of the right to a fair trial named in the study are systematised from separate decisions of the court (which reflect the established practice of this court, are repeated in many decisions, and therefore are still relevant today). we do not attempt to fully explain the fairness of the right to a fair trial. we concentrate on the procedural aspects of court justice, much like the european court of human rights, rather than the substantive aspects. the right to a fair trial includes the following elements: 1) the fair nature of the trial involves compliance with the principles of equality and non-discrimination, the adversarial nature of the parties in the trial, and also requires the court to justify the decision made; this element of the right to a fair trial establishes requirements for the procedural aspects of the administration of justice, which must balance possible exceptions to the principle of adversariality of the parties; 2) the independence and impartiality of the court includes such elements, as: the way of judges’ appointment, the procedure for their dismissal and prosecution; term of office of a judge; prohibition of interference in the administration of justice; the procedure for the administration of justice that should be determined by law and provide for the secrecy of the decision, liability for contempt of court; guaranteed financing of courts, proper financial provision of courts, social protection and security of judges and their family members; and efficient judicial self-government; 3) access to the court involves provision by the state of the opportunity for persons to apply to the court; the state establishes a number of restrictions on access to the court, namely: requirements for appeal, terms of appeal, and court costs. the right of access to the court is also granted to persons recognized as having limited legal capacity; 4) the right to a public hearing of the case determines the following requirements for the administration of justice as follows: open court hearings, oral hearing of the case in the court of first instance, publicity of the court’s decision pronouncing. limiting the publicity of the trial is allowed in exceptional cases, if publicity would harm the interests of justice; http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 4 5) the right to consider the case within a reasonable period requires the administration of justice in a period that is sufficient and necessary for the implementation of procedural actions provided for by law and the resolution of the case without unjustified delays; there must be an optimal balance between the term of the case consideration and the proper administration of justice; 6) the right to enforce a court decision requires unconditional enforcement of a court decision. the prevention of the disease of covid-19 caused the introduction of strict quarantine restrictions, which affected almost all components of the right to a fair trial. the right to access to court and the right to a public trial were the most restricted. the implementation of the right to access to the court was mainly ensured through video conferences, while the right to a public hearing of the case remained unrealized (international union of judicial officers, 2020). the right to a fair trial is even more affected under martial law. when the entire territory of the state is shelled, a large part of the population is forced to leave the state it is too difficult to ensure the right to a fair trial. herewith, all components of the right to a fair trial are under threat. the primary measures that should be taken to improve the situation with ensuring the right to a fair trial should be as follows: 1) making legislation on conducting court hearings in the form of video conferences; 2) introduction of the electronic system “electronic court” (for the exchange of electronic documents between participants in the legal process); 3) development of principles for determining urgent cases; 4) courts’ technical support; 5) court employees’ training (regarding the formation of skills in the use of appropriate technical means, software, etc.); 6) proposals for monitoring court proceedings development, and involvement of the public in the control of judicial proceedings. the research of the right to a fair trial is based on the content analysis method. legislation, legal acts, including the european court of human rights’ decisions, and ukrainian legislation in the field of ensuring the right to a fair trial in wartime, were worked up by means of this method. this made it possible to establish a common understanding of the right to a fair trial within the council of europe (1950) member states (by means of the european court of human rights practice’s analysis), as well as the means of solving (by the ukrainian authorities) the issue of justice in the conditions of the occupation of part of its territory and the constant military actions of the russian army. achieving the goal of the study determined the structure of the paper, which includes the three aspects coverage. first, it is the clarification of the right to a fair trial sense, which is especially important in the conditions of the lack of unity of views on this phenomenon, and terminological ambiguity (the presence of different terms denoting the right to a fair trial). herewith, its interpretation by the european court of human rights is taken as the basis of such a general understanding. this choice is stipulated by the fact that http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 5 the european court of human rights practice possesses a precedent nature allowing reveal a common understanding of the right to a fair trial in 46 member states of the council of europe. we should also mention russia’s expulsion from the council of europe in 2022 due to systematic and gross violations of human rights and an act of aggression against ukraine (law of ukraine no 389-viii, 2015). this additionally confirms the possibility of clarifying the general understanding of the right to a fair trial (the presence of consensus concerning this right’s components). such a general understanding is a model of the right to a fair trial allowing to further determining the specifics of this right implementation in extraordinary conditions. secondly, it is a description of the features of ensuring the right to a fair trial in the context of the fight against covid-19 (betetto, 2020; doya nanima, 2020). covid-19 has significantly affected the society life, significantly limiting social interaction, contacts of people both at the national and international levels. in the context of the right to a fair trial, covid-19 has become a factor in significantly limiting a person’s access to court. it is primarily about physical access; however, it affects the possibility of a person to be present during the consideration of his case. above mentioned, to a certain extent, is also characteristic of the right to a fair trial exercise under martial law. thirdly, it is a description of the features of ensuring the right to a fair trial under martial law. ukraine was chosen for the implementation of this part of the study and this is conditioned by the following circumstances, namely: ukraine is a member of the council of europe, the jurisdiction of the european court of human rights extends to it, which is especially important in the context of the first part of the paper (allows to compare the features of ensuring this right in both ordinary and extraordinary conditions). for seven months, active hostilities, armed aggression by russia and the occupation of a large part of the territory of ukraine by russian troops and constant shelling of the entire territory of ukraine have been taking place on the territory of ukraine. the courts continue to function in such conditions. it should be highlighted that the implementation of the right to a fair trial in ukraine was substantially impacted by the pandemic and martial regime. of course, the extent of their influence varies. however, there are considerable parallels between the aspects of the right to a fair trial that are subject to limitations and the steps that the authorities use to get over the limitations brought on by these circumstances. additionally, the decision to include both extreme situations in a single research is based on the reality that the pandemic and martial law were the main causes of widespread limitations on the right to a fair trial, rather than a few isolated limitations (violation). to determine if the consequences for possible violations of the right to a fair trial are similar or different, we combine these two factors in our study. general understanding of the right to a fair trial and the fair nature of the court the right to a fair trial is an integral part of a democratic society, although even today there is no unified understanding of its sense in different states. we would like to add that various terms are used to denote this right.in the of international law acts. http://10.17561/tahrj.v20.7539 right.in right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 6 thus, art. 8 of the universal declaration of human rights (united nations, 1948) includes the “effective remedy by the competent national tribunals” term. art.6 of the convention for the protection of human rights and fundamental freedoms (1950) contains the “right to a fair trial” term. art. 14 of the international covenant on civil and political rights (united nations, 1966) contains the following: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. art. 13 of the convention on the rights of persons with disabilities (european court of human rights, 2006c; united nations, 2006) includes the “access to justice” term. and art. 47 of the charter of fundamental rights of the european union (the european parliament, the council and the commission, 2012) contains the “right to an effective remedy and to a fair trial” term. it is worth agreeing with some scholars who indicate that part of these international acts has formed the international system of human rights protection (kuchuk et al., 2022; krešimir, 2022). “in the court’s opinion, the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting article 6 para 1 (art. 6-1) of the convention restrictively” – indicates the european court of human rights in case of moreira de azevedo v. portugal (european court of human rights, 1990). in our opinion, the concept of the right to a fair trial is still not clearly defined. the list of elements of this right is not exhaustive, however, the european court practice analysis allows us to name the following components of the right to a fair trial. despite the fact that justice is the foundation of the legal system, and its essence, there has not been a unified approach to understanding this concept essence even within the council of europe member states. we fully agree with o. spengler’s statement (1922) that “any culture as a whole being of a higher order has its own moral face. there are as many morals as there are cultures”. this idea is also reflected in the european court of human rights decisions. thus, even in the case of handyside v. the united kingdom (european court of human rights, 1976), this court concluded that it is impossible to find a universal european theory of morality in the national legislation of the contracting states. attitudes to the rules of morality reflected in legislation, change from time to time and from place to place, especially in our era, which is characterized by a rapid and far-reaching evolution of views on this issue. in otto-preminger-institut v. austria (european court of human rights 1994b) case the european court of human rights compared the perception of morality and religion, indicating that, as in the case of “morality”, it is impossible to single out the only concept for all european states about the religion importance in society; such concepts might differ even within one and the same state. at the same time, the european court of human rights in open door and dublin well woman v. ireland (european court of human rights, 1992) case indicated that “cannot accept that the opinion of the state in the area of moral protection is free from control and is not a subject to review”. let us emphasize that the trial fairness is manifested in a number of characteristics that will be disclosed below as the right to a fair trial individual elements. at the same time, characterizing justice, we will point out the following requirements for judicial proceedings. http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 7 first, a fair court must ensure the equality of the participants in the process and equal access to the court implementation. the principles of equality and non-discrimination are fundamental principles of law. “while there is no universal standard for defining the principles of equality and nondiscrimination, for the purposes of this study, the principle of equality is the principle that individuals under the same jurisdiction are equal in their rights, and the principle of nondiscrimination is the principle that individuals should not be treated unfairly based on an immutable characteristic or core trait” (osborne, 2021). in our opinion, the essence of these principles regarding the right under the study is as follows: it is forbidden to put one of the parties to the trial in a less favorable position (compared to the other party). each of the parties must have an equal opportunity to present their evidence in support of their position or refutation of the other party’s position. it should be noted that a similar opinion was expressed by the european court of human rights in the case of foucher v. france (european court of human rights, 1997a): “the court reiterates in this connection that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent. the same provision is reproduced in cases bobek v. poland (european court of human rights, 2007a) and klimentyev v. russia (european court of human rights, 2007b). in case of kuopila v. finland (european court of human rights, 2000a) the european court of human rights recognized a violation of the right to a fair trial due to the defense’s denial of evidence, which violated the parties to the trial equality principle. the right to contest, necessitating the familiarization of the parties to the case with the materials of the case and the presentation of evidence, follows from the principle of equality of participants in the legal process. in addition, it is worth pointing out a change in the approach of the european court of human rights regarding giving importance to the external aspects of the administration of justice (which should embody fairness) and public opinion regarding a fair trial. this is stated in paragraph 24 of borgers v. belgium (european court of human rights, 1991) case. this stipulates increased requirements for the procedural aspects of the administration of justice that should ensure the fairness of the process. thus, we indicated above the necessity for equal access of the parties to the evidence, however, in exceptional cases related to the protection of the rights of other persons, the access of the defense party to the evidence might be limited, however, the european court of human rights in the case of doorson v. the netherlands (european court of human rights, 1996) indicated that ensuring the anonymity of witnesses made certain difficulties for the defense that should not normally exist in a criminal trial, however, such restrictions would be interpreted as a violation of art. 6 of the convention on the protection of human rights and fundamental freedoms, if they are not sufficiently balanced by judicial procedures. the reasonableness of the court’s decision should be noted separately. justice involves justification of the decision made by the judge. in our opinion, the validity of a court decision has the following significance: first, it acts as a means of legitimizing the decision. the strength http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 8 of the court’s decision is provided by the strength of the decision logic, the completeness of the evidence analysis and the persuasiveness of the arguments presented. let us emphasize that we believe that proper legal reasoning of the court’s decision is the requirement of the rule of law. herewith, it is crucial to understand that legal phenomena (as social and cultural phenomena) have an axiological component, and therefore legal logic should take into account not only the deduction and induction methods, but also value judgments, especially in the aspect of interpretation of legal norms mutatis mutandis. “indeed, the exercise of the legal role and the scholarly understanding of legal texts were classically defined as ars iuris an art of law which drew on the panoply of humanist disciplines, from philology to fine art” (ben-dor, 2013). “scholasticism and dialectic method is used as a support hermeneutic interpretation of legal facts to me recht construction of a new legal norm normative ideas should not be separated from idee recht itself (budihanto, 2017)”. obviously, the court is not obliged to carry out a detailed analysis of all the arguments provided by the participants in the case, however, all the essential circumstances of the case should be carefully analyzed. the court should demonstrate to the parties that they have been heard (european court of human rights, 1994c). court decisions’ reasoning allows use of the right to appeal the decision effectively. it is appropriate to indicate the reasons for accepting or rejecting the arguments presented by the parties. independence and impartiality of the court it is quite obvious that a dependent court as well as a biased court cannot properly administer justice. moreover, such an “institution” can hardly be called a court. the presence of an independent and impartial court is a characteristic feature of the rule of law. the existence of such a court is a mandatory condition for the rule of law implementation. “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” – is indicated in the basic principles on the independence of the judiciary (united nations, 1985), the international instrument, adopted at the un level as long ago as 1995. according to the principle of separation of powers, implemented in democratic states, the state power is exercised by legislative, executive and judicial bodies. a system of checks and balances is a constituent of this principle. however, if the judiciary can largely “restrain” the legislature and the executive power (for example, by way of negative law-making, when the bodies of constitutional justice perform the role of a “negative legislator”), then neither the legislature nor the executive power can interfere with the administration of justice (european commission for the efficiency of justice, 2020). the european court of human rights in case of sovtransavto holding v. ukraine (european court on human rights, 2002) recognized the violation of the right to a fair trial because of the systematic interference of public authorities (including the head of state) in the judicial process. the same is true in the aspect of impartiality and independence of the court. in case of beaumartin v. france (european court on human rights, 1994a) the european court of human rights recognized a violation of the right to a fair trial due to the procedure http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 9 of the administrative court operating in france at the time in case of the necessity to interpret an international treaty. thus, faced with the difficulties of interpreting an international treaty, the administrative court was obliged to apply to the minister for foreign affairs. the minister’s explanation was binding on the court. therefore, high demands (including ethical ones) are laid down on judges in every democratic state. they (demands) also contribute to the formation of an unbiased court and serve as the basis for legitimizing court decisions. the european court of human rights practice analysis under art. 6 of the convention for the protection of human rights and fundamental freedoms allows us to conclude that the factors of independence and impartiality of courts are as follows: the way of judges appointing, the procedure for their dismissal and prosecution (herewith, for example, the appointment of judges by the parliament does not mean their dependence, if the parliament does not give instructions and does not exert pressure on judges (european court of human rights, 2006a); judge’s term of office; prohibition of interference in the administration of justice (including by higher courts. for example, in the case of agrokompleks v. ukraine (european court on human rights, 2013a), the european court of human rights recognized a violation of article 6 of the convention for the protection of human rights and fundamental freedoms, since the instructions by the supreme arbitration court of ukraine were given to review the applicant’s case; this court exerted an overt influence on the judicial process); the procedure for the administration of justice, which must be defined in the law (and not in a by-law) and provide for the secrecy of the decision-making (violation of the secrecy of the deliberation room must be interpreted as the reason for annulment of the decision), and liability for contempt for court; guaranteed courts’ financing, proper courts’ material provision, social protection and security of judges and their family members; effective judicial self-government (it should not be formal; it should exist not only de jure, but also de facto). access to court the right to a fair trial provides for an individual or legal entity to be able to go to court without hindrance if they believe that their rights have been violated. public authorities cannot forbid a person to apply to the court, and the court cannot deny justice to a person. such a prohibition or refusal encroaches on the essential idea of the right to a fair trial. let us point out that the european court of human rights emphasized the importance of access to court precisely in the context of the right to a fair trial in the case of golder v. the united kingdom (european court on human rights, 1975), the right enshrined in art. 6 of the convention for the protection of human rights and fundamental freedoms would be ineffective without access to court. in our opinion, the right of access to the court can be ensured in different ways in different states. however, in any case, the level of access to court must be sufficient to http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 10 ensure human rights. every person who believes that his rights have been violated should have the opportunity to go to court. the degree of a person’s access to justice provided under national law must be sufficient to ensure the person’s right to a trial in accordance with the rule of law in a democratic society (european court of human rights, 1985). therefore, the state must establish limitations of the right to access to court in the law. as for such restrictions, the states are endowed with a wide discretion in their establishing, however, these restrictions cannot contradict the rule of law. usually, these restrictions are related to the term of appeal to the court (thus, the statute of limitations is established in civil law; the statute of limitations for criminal liability is established in criminal law), and requirements for appeal (requirements for a statement of claim), etc. therefore, the state determines the procedure for applying to the court in the national legislation, while the legislation can change, accordingly affecting the change in the procedure for access to the court. “nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired” (european court of human rights, 1985). the right to access to the court can be limited only if three criteria are taken into account: 1) legality of the restriction; 2) existence of a legitimate purpose; 3) compliance with the principle of proportionality. in our opinion, in the context of the right of access to the court, we should also talk about the right to legal aid, which acts as a guarantee of effective access to the court. it is quite obvious that, for example, in the absence of legal aid in criminal cases, the trial would mostly end in a verdict for the defendant. one cannot but mention the access to the court of persons who are recognized as having limited legal capacity. thus, the case of nataliya mikhaylenko v. ukraine (european court on human rights, 2013b) is a demonstrative one. the civil legislation of ukraine did not provide for the possibility of a person with limited legal capacity to independently apply to the court for restoration of legal capacity. in this case, the european court of human rights noted that such an approach of national legislation, according to which a legally incapable person does not have the right to direct access to the court, does not correspond to the general trend existing in european states. we will point out the issue of the court fee apart. in kreuz v. poland case (european court on human rights, 2001) it is noted that “the court has ruled that in some cases, in particular where the limitations in question related to the conditions of admissibility of an appeal, or where the interests of justice required that the applicant, in connection with his appeal, provide security for costs to be incurred by the other party to the proceedings, various limitations, including financial ones, may be placed on the individual’s access to a “court” or “tribunal”“. thus, ensuring the right to a fair trial can be justified by establishing financial restrictions on access to the court. however, the court fee should not lead to a situation where the applicant abandons his claim; the amount of the fee should be proportionate and should not violate the essence of the right of access to the court. let us emphasize that the lack of access to the court makes it impossible to exercise the right to a fair trial enshrined in art. 6 of the convention for the protection of human rights and fundamental freedoms (“the fair, public and http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 11 expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated”) is pointed out by the european court of human rights (2010), therefore without ensuring access to court the right to a fair trial will be illusory and ineffective. it should be emphasised that a number of changes to the national legislation, notably those relating to access to courts, were implemented in ukraine as a result of the start of russia’s armed aggression. these include organisational elements of changing the territorial jurisdiction, court operations under the conditions of the high council of justice ceasing to operate, and new methods of informing the public about court activity. the council of judges decided what should take priority in the same matter (access to the court) when it came to protecting one of the competing rights: “recommend to the assemblies of judges, heads of courts, judges of the courts of ukraine in the event of a threat to the life, health, and safety of court visitors, staff courts, judges to promptly make a decision on the temporary suspension of judicial proceedings... until the circumstances are eliminated” (council of judges of ukraine, 2022a). the analysis of the national legislation changes reveals that the primary purpose of these changes was to ensure the participants in court proceedings’ lives and health as well as their safety. “it is almost impossible to predict everything and feel completely safe from enemy shelling, but strict compliance with the requirements and rules of civil defense in most cases saves the population from death and maiming” (council of judges of ukraine, 2022b). therefore, the main means of ensuring access to the court became the use of information technologies (for example, conducting video conferences, which provides the opportunity to participate in the court session while being in a safe place) and partially changing the territorial jurisdiction. we would like to add that even at the beginning of the pandemic, the use of the easycon system was foreseen at the legislative level to ensure the conduct of court hearings online. at the same time, it should be highlighted that a person's right to judicial protection cannot be limited in accordance with ukrainian law, not even when martial law is in power. the peculiarities of the work of a particular court are determined by the actual situation in the respective region. the right to a public hearing this right is directly related to the right of access to court. this right is a guarantee of the activity of courts within the limits of the rule of law; it protects the parties to the judicial process from secret justice and provides for the possibility of public control over the administration of justice. thus, this right is an additional means of legitimizing decisions made by courts. without observing the publicity of the trial, it is not possible to ensure the justice of the court. at the same time, it is worth pointing out the possibility of conducting closed court sessions, for example, in cases related to state secrets, commercial secrets, in cases of private prosecution, if necessary to ensure the safety of witnesses, however, such hearings are an exception to the rule, but not the rule and the decision to hold such a meeting is made in a specific case, taking into account the http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 12 circumstances of the case. the european court of human rights has emphasized that “publicity contributes to fulfilling the aim of article 6 paragraph 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the convention”. we would like to add that the publicity of the case may be limited even in courts conducting appellate or cassation proceedings. however, such a restriction is possible if a public hearing of the case was ensured in the court of first instance. it should be noted that the public nature of the court process allows for the realization of the right to a fair trial by virtue of the protection of the parties from unjustified decisions and public control over the administration of justice. publicity ensures public awareness of the court process. in our opinion, the right to a public trial includes the following aspects: first, it is open court hearings (the hearing, to which only the parties and their representatives are admitted, cannot be interpreted as an open court hearing); secondly, the oral hearing of the case in the court of first instance, thirdly, the publicity of the announcement of the court’s decision. this conclusion can be drawn from the european court of human rights practice analysis, in particular, from the following cases: hermi v. italy (european court on human rights, 2006a), jussila v. finland (european court on human rights, 2006b), raza v. bulgaria (european court on human rights, 2010), riepan v. austria (european court on human rights, 2000b), sutter v. switzerland (european court on human rights, 1984). thus, it should be pointed out the double meaning of the public nature of the judicial process: individual (protection of the parties from secret and arbitrary proceedings) and public (public control over the administration of justice, legitimacy of decisions made by the courts). limiting the publicity of court proceedings is carried out in case when such proceedings may harm the interests of justice. let us point out that in the conditions of martial law, the ukrainian authorities took measures affecting this aspect of the right to a fair trial. thus, admission to court sessions of persons who are not participants in court sessions was limited; consideration of cases is postponed if possible. the right to hear the case within a reasonable period and the right to enforce a court decision the court cannot be called fair if the trial is dragged on for too long. the plenum of the supreme specialized court of ukraine for consideration of civil and criminal cases (supreme specialized court of ukraine for consideration of civil and criminal cases, 2014) gave the following interpretation of a reasonable period: “reasonable, in particular, is the term that is objectively necessary for the execution of procedural actions, the adoption of procedural decisions and the consideration and resolution of the case in order to ensure legal protection timely (without unjustified delays)”. http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 13 in the case of beaumartin v. france (european court of human rights, 1994a) the european court on human rights pointed out that “it follows that the court cannot regard as “reasonable” in this instance a lapse of time of more than eight years”. in this case, the applicants themselves delayed the process, appealed to a court that had no jurisdiction, did not submit their comments for a long time, and a complicated issue of interpretation was raised in the case itself; at the same time, the duration of the court proceedings was not argued in court. at the same time, let’s emphasize that the duration of the case consideration is influenced by a number of factors, including the complexity of the case, as well as the behavior of the parties to the court process. herewith, the right to a reasonable period must be observed in each case, taking into account the circumstances of the case (european court of human rights, 1978). it should be noted that the term “reasonable period” has an autonomous meaning and is interpreted by the european court of human rights regardless of the definition of this term in the national legislation of the convention for the protection of human rights and fundamental freedoms member states. it is obvious that the period of court proceedings might differ from state to state; however, it should not be excessive. at the same time, overloading of judges or insufficient number of judges cannot be the reason for increasing the periods of court proceedings. the state is entrusted with the duty to ensure the functioning of the courts in such a way that the courts can consider the case within a reasonable period. herewith, it should also be taken into account that certain cases require speedy consideration, namely child custody cases (european court of human rights, 1999). in our opinion, the judge’s professionalism is the means of finding a balance between a reasonable period and the quality of the trial. judges should be subject to increased requirements, which is stipulated by the importance of judicial power and the social role of courts, and the importance of fair administration of justice. the right to a fair trial would be ineffective if the court’s decision remain unsatisfied. therefore, the right to enforce a court decision is an inherent component of the right to a fair trial. “however, that right would be illusory if a contracting state’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. it would be inconceivable that article 6 para 1 (art. 6-1) should describe in detail procedural guarantees afforded to litigants proceedings that are fair, public and expeditious without protecting the implementation of judicial decisions; to construe article 6 (art. 6) as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the contracting states undertook to respect when they ratified the convention” (european court of human rights, 1997b). the given provision fully characterizes the idea of the court decision execution. the right to a fair trial in the context of the fight against covid-19 covid-19 has radically changed the usual way of life of people all over the world. countermeasures were taken at the international level. borders between states were closed. the movement of people within the borders of the states was significantly restricted. http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 14 the ban on large gatherings of people was mainly in effect. the reception of citizens by public authorities was also limited. this also affected the access of individuals and legal entities to the court. the requirement for self-isolation of a person should be mentioned separately, as well as the significant restriction of the rights of those people who did not agree to vaccination. thus, in some states, courts had to suspend the personal reception of citizens, it is recommended to submit documents only in electronic form, to consider only cases of an urgent nature, if there is a technical possibility, to initiate consideration of cases by way of the use of video communication systems; to limit access to courts of persons who are not participants in court proceedings (supreme court of rf, 2020). these and other restrictions’ systematic generalization, adopted by various states, was carried out by the european commission for the efficiency of justice (2020), and the results of this generalization are given on the website of the council of europe. in the context of the right to a fair trial general model defined by us, we will indicate as follows. the countermeasures implemented by the states to overcome covid-19 in general could not affect the following constituent elements of the right to a fair trial: 2.1. court’s independence and impartiality. such a component of the right to a fair trial as access to court and the right to a public hearing (especially in the context of the requirement for self-isolation and vaccination) has been most affected. the following components were less affected: 2.2. the fair nature of the court, in terms of the competitiveness of the parties (in particular, due to the lack of opportunity to be present in court); 2.3. the right to consider the case within a reasonable period (in particular, because of the person’s non-appearance at the court session); 2.4. the right to enforce a court decision (“faced with the covid-19 pandemic, the uihj is aware of recent developments in many countries, regarding essential measures taken, which also have an impact on the legal system and on the enforcement of court decisions” (uihj, 2020)). one of the means that was used by a number of states to overcome those circumstances that did not allow ensure the right to a fair trial was the digitalization of the judicial process. in particular, it is about the use of a video communication system. however, in our opinion, video communication tools only partially solve the outlined problem. thus, there is no doubt that by virtue of them a person can follow the court process, personally provide evidence, refute the arguments of the opposing side, including using the help of a defense attorney, and of an interpreter. however, first, a fair trial requires a preliminary fair investigation (in criminal proceedings), which in a number of cases requires the physical presence of the suspect. or let’s point out the impossibility of a physical meeting between a lawyer and a suspect in respect of http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 15 whom custody has been applied, provided the introduction of quarantine at the place of detention. second, such a communication mostly does not guarantee the implementation of the public hearing of the case and the possible control of the public over the judicial process. even if the court on its official website will indicate the data by which a person can join the court session, another problem may arise: people, whose goal will be to disrupt the court session, will be able to join it. if this were a courtroom, then such persons could be prosecuted for contempt of court, however, open video conferences allow entering under fictitious data, which makes it impossible to identify a person (if it is possible to identify, then the efforts and means are incompatible with the purpose of such identification). admission to the video conference with identification of the person mainly conditions the participation of only the parties and their representatives (which makes it impossible for the public to monitor the court proceedings). in addition, it is worth mentioning the low level of information and technical support of courts, especially, if it is a district court in the states of the post-soviet space. at the same time, it should be noted that quarantine measures should not be used by the authorities to violate human rights, in particular, the right to a fair trial. thus, n. betetto (2020) emphasized the following: “the ccje has already emphasized that the rule of law is guaranteed by the fair, impartial and effective administration of justice. these principles developed by the ccje, as well as by the council of europe as a whole, notably including rights to access to a court and to an effective remedy, should be strictly safeguarded during emergency situations in general and a pandemic in particular”. moreover, it is necessary to point out the necessity for legal regulation of the judiciary digitization processes. state authorities, taking into account the requirements of the rule of law, must act within the limits of the powers defined by law. the use of digital technologies makes possible the leakage of personal information, and the intervention of public authorities in the sphere of personal privacy. in our opinion, the use of video conferencing should be approved by the parties to the litigation and should be an exception; the court must hold court hearings with the participation of the parties (as a rule), the decision to hold a video conference must take place only if this form does not affect the exercise of the right to a fair trial. let us add that it is necessary to adopt general rules for determining those cases that can be considered as a priority. it is obvious that the decision to recognize a case as a priority is made in each specific case, but without general rules (principles) such activity will be arbitrary, and makes corruption risks (and as a result leads to a violation of the equality principle). thus, it is worth pointing out such a positive effect of quarantine restrictions on the administration of justice as information and digital technologies introduction into the judicial process. however, the digitalization of judicial proceedings cannot be considered as a means to ensure the right to a fair trial. the introduction of quarantine restrictions became a challenge for the judiciary in all states of the world and revealed problems, the solution of which should become the main task for national states and international organizations. all relevant circumstances must be taken into account, http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 16 which will allow finding a balance between the necessity for health protection and the right to a fair trial. the right to a fair trial in conditions of war (on the example of ukraine) the autonomous republic of crimea, and part of the donetsk and luhansk regions (part of the territory of ukraine) were occupied as a result of russia’s armed aggression. this could not but affect the administration of justice in these territories. the judges were moved to the territory under the control of ukraine however, the same cannot be said about the materials of the court hearings that were in the courts, accordingly, a large part of the documents was lost. although, it should be noted that the changes in the procedure for conducting judicial proceedings affected only those courts that functioned in the occupied territory and the front-line zone. the situation changed radically in february 2022, when russia carried out a fullscale invasion of the territory of ukraine, occupying part of the territory, bombing the entire territory of ukraine, destroying residential areas, administrative buildings, etc. mobilization was announced in ukraine and about 700,000 people were called for service into the armed forces of ukraine. it is obvious that it is difficult to ensure the right to a fair trial (as well as other human rights) in such conditions. let us remind that according to the possibility of limitation, human rights are divided into relative and absolute. the right to a fair trial is a relative right, it can be limited (provided a number of conditions are met). since the right to a fair trial imposes a number of positive obligations on the state, its implementation depends on the active actions of public authorities. according to the legislation of ukraine, during the period of martial law, the powers of courts, prosecutor’s offices, agencies carrying out investigative activities, and pre-trial investigation cannot be suspended (the verkhovna rada of ukraine, 2015). however, some courts have suspended their activity because of the active hostilities and temporary occupation. among the main changes that took place in the field of administration of justice the following should be noted: 1) change of territorial jurisdiction. the activity of individual courts in donetsk, zhytomyr, zaporizhzhia, kyiv, luhansk, mykolaiv, sumy, chernihiv, kharkiv and kherson regions was suspended. due to the impossibility of administering justice in certain districts of these regions, the territorial jurisdiction over the cases considered in these courts was changed by transferring it to the court that is closest territorially to the court that cannot administer justice, or to another court. such a change was made by order of the chairman of the supreme court (in order to implement such authority of the chairman of the supreme court, amendments were made to the legislation on the judicial system and the status of judges. after the de-occupation and restoration of the activity of the relevant courts, the territorial jurisdiction of court cases is restored (also by means of the adoption of a decision by the chairman of the supreme court). herewith, the time of consideration of cases that were transferred to other courts is determined (which is correct, based on the fact that http://10.17561/tahrj.v20.7539 bohdan i. andrusyshyn, yevhen v. bilozorov, natalia m. opolska, liudmyla f. kupina & olha v. tokarchuk the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 17 re-transfer of the case may lead to a delay in the consideration of the case). at the same time, there are problems with the material and technical support of these courts, given the significant damage to both the premises and buildings in general. 2) the procedure for acquainting the participants of the court process with the case materials. characterizing this aspect, we mean the courts operating in the territory controlled by ukraine. in addition to systematic air alarms that force people to hide in shelters, let us point out that a significant number of citizens were mobilized, and an even larger number of people left the borders of ukraine (in the latter case, no change of place of residence was reported, which is quite obvious). it is impossible to inform the participant of the case who moved to another country or changed his place of residence in ukraine without informing the official authorities of his new place of residence. we would like to add that in order to prevent hacker attacks, access to the register of court decisions, the “cases’ status” and “list of cases scheduled for consideration” services were restricted in ukraine. at the same time, individual courts post information for participants in court cases on their websites. in addition, telephone communication remained, the e-mail of the court functioned, and messages were received by individual courts on messenger facebook. however, there is a question about the appropriateness of the message by such means. the possibility of exchanging procedural documents through a mailbox on the official website of the judiciary at the address: mail.gov.ua was created. it is impossible but mention the use of the “electronic court” information system as part of the unified judicial information and telecommunication system, the implementation of which began in 2017, the main purpose of which is the exchange of procedural documents between the participants in the court process, the submission of electronic documents to the court with tracking of the status of their consideration. 3) participation of subjects of legal proceedings in the court session. at the beginning of 2020, changes, allowing the participants in the case to participate in the court session remotely, were made to the legislation. if until now, videoconferencing was allowed, but with the mandatory presence of the participant in the court (albeit another), now the parties to the process are given the opportunity to participate in the court session using their own technical means (identification of the person is carried out by virtue of the use of an electronic signature). the easycon system was implemented, and the use of other means available to litigants was allowed. although the implementation of video conferences to a certain extent contributed to solving the problems of justice administration in the conditions of covid-19, in the conditions of martial law, this tool does not have such effectiveness, which is connected with the lack of a safe place (in the conditions of constant shelling by russia of the entire territory of ukraine. 4) compliance with procedural terms. as the head of the supreme court v. kniazev (2022) noted, “martial law is a valid reason for missing deadlines, but each judge will evaluate this reason individually, within the limits of the case to be considered”. even under martial law, justice must be done, so litigants should take care to file appropriate http://10.17561/tahrj.v20.7539 right to a fair trial in extraordinary conditions the age of human rights journal, 20 (june 2023), e7539 issn: 2340-9592 doi: 10.17561/tahrj.v20.7539 18 documents when it is possible. therefore, as we see in the conditions of martial law, when the judges themselves are in danger, it is difficult to ensure all the components of the right to a fair trial. conclusion thus, the right to a fair trial includes the following provisions: equality and non-discrimination, competition between the parties, justification of the decision made; independence and impartiality of the court; access to court; public hearing of the case, hearing of the case within a reasonable period; efectuation of a court decision. distinguishing the constituent elements of the right to a fair trial allows us to identify those of them that are difficult to implement under quarantine restrictions or under martial law. this approach provides an opportunity to develop recommendations for improving the state’s activities in ensuring the right to a fair trial. under the specified extraordinary conditions, the right of access to the court and public hearing of the case is subject to restrictions. under martial law, the right to consider the case within a reasonable period is also limited. however, any limitation of the right to a fair trial must meet the requirements of the law, have a legitimate purpose, and the limitation measures must be proportionate. the authorities should pay special attention to further digitalization of the judiciary, taking into account the necessity to ensure the right to a public trial. the above mentioned makes it possible to determine the following areas of improvement of public authorities in ensuring the right to a fair trial in martial law conditions (which can also be applied during the pandemic). in particular, the urgent issue is the normative consolidation of the extension of procedural terms (in non-urgent cases) and the principles of determining those matters that are urgent. other recommendations relate to the improvement of the established mechanisms for the application of information technologies. activities under martial law require the adoption of non-standard decisions, however, these decisions must be made in compliance with the requirements of the rule of law. a separate direction should be the development by judicial self-government bodies of the procedure for restoring lost court proceedings. conflicts of interest the authors declare they have no financial and competing interests. references bakhshay, s. & haney, c. 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(2007). public and private justice: dispute resolution in modern societies. oxford: intersentia antwerpen, p. 230. received: november 3rd 2022 accepted: march 10th 2023 http://10.17561/tahrj.v20.7539 https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf right to a fair trial in extraordinary conditions abstract introduction basic concepts and methods for revealing the topic of the right to a fair trial general understanding of the right to a fair trial and the fair nature of the court independence and impartiality of the court access to court the right to a public hearing the right to hear the case within a reasonable period and the right to enforce a court decision the right to a fair trial in the context of the fight against covid-19. the right to a fair trial in conditions of war (on the example of ukraine) conclusion conflicts of interest references the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 425 the sdgs and human rights key instruments in the response and recovery from the pandemic lucía aparicio chofré1 abstract: the covid-19 pandemic is a valuable opportunity to draw a series of important lessons that may be key to turning the tide and laying the foundations to face the new and unprecedented challenges that humanity will face in the coming years. after analysing the differences between this crisis and the two previous ones experienced in the 21st century, a series of lessons that should be considered stand out. next, the sustainable development goals and human rights are presented as key instruments to guide the construction of a new model that leaves no one behind and increases our resilience. finally, it concludes by collecting a series of theoretical reflections that could be used as a methodology and possible content proposals in the design of a new model to face the challenges that the future holds, as well as the response to possible criticisms. keywords: pandemic, human rights, sustainable development goals, challenges. summary: i. the pandemic as a challenge for a new paradigm shift. ii. the sustainable development goals and human rights as key instruments. iii. laying the foundations for the future challenges of humanity. i. the pandemic as a challenge for a new paradigm shift if we could travel to the future and see what future generations will study in their history books, if the books still exist and have not been replaced by some electronic device or worse still by a brain implant. we would see reflected in their history books how the beginning of the 21st century will possibly be remembered by interesting events such as 9/11 in 2001, which undoubtedly represented a paradigm shift in the international geopolitical order, (muzikalia, 2021)2; 1. phd assistant professor, department of philosophy of law and politics of the university of valencia, spain (lucia.aparicio@uv.es). all the websites quoted throughout this article were accessed on 12 october 2021. this article has been revised and corrected in its english version by professor thomas kruiper of the european university of valencia, thomas.kruiper@universidadeuropea.es 2. without a doubt it is curious that just after the attack the united states government elaborated and banned a blacklist of songs like "daniel" by elton john, "imagine" by john lennon, "black is black" by the braves, "wonderful world" in all its versions, “ob la di ob la da” and “ticket to ride” by the beatles, “have you seen her” by the chi-lites, “mac the knife” by bobby darin, “america” by neil diamond, sinatra's “new york new york”, etc. and not just songs: if not, entire bands were censored by name (rage against the machine, massive attack) or had to change the title of their albums (jimmy eat world's bleed american). more understandable is the case of the coup and its album party music, set to be released in september 2001 and which featured on the cover an image of the twin towers exploding and burning (tragic coincidence, since the design had been finished months before the attacks). something less understandable, although it has its perverted logic, is that groups like anthrax or the world trade centre had problems with their names. the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 426 the global economic crises that triggered the collapse of lehman brothers in 2008; and recently, since 2020, a health pandemic also on a global scale. important historical events (martínez gonzález, 2000), with a ten-year period to which important advances in the evolution of humanity would surely be added, include: – in the field of technology, they would surely highlight: the generalization of new information and communication technologies with the extension of broadband and the acceleration of its speed, the democratization and universalization of smartphones, the implementation of 5g and the take-off of artificial intelligence or robotics (faulconbridge, 2021)3. – in the field of science the following would be mentioned: the decoding of the human genome in 2001 (which opens up an impressive range of possibilities in the treatment of diseases and genetic improvement), the important milestones achieved in the field of neuroscience in relation to the map (abbot, 2021) and the functioning of our brain thanks to the use of magnets to observe neurons and that have allowed achievements such as the use of electrodes to cure physical or mental illnesses, as well as implants to recover the senses or sensors to read death4. one could also mention the recent discoveries in the field of quantum physics led by spanish scientists such as the measurement of the quantum sequence (limón, 2021), which open a wide spectrum of possibilities yet to be discovered5. – on the other hand, in terms of the ideological and cultural dimension, the revolution in the media and information should be noted, as well as the attempts to impose a single thought and influence public opinion through the proliferation of new channels of communication information (couto, 2020)6, such as social networks and smart devices that always accompany us in our pockets and allow us to be continuously connected, thanks to which we become selective producers and recipients of information (castells, 2005). without a doubt, we are in the information age. and as hobbes well illustrated us in his famous leviathan "who has the information, has the power" (hobbes, 2005). so now we can supposedly instantaneously know, for free (bonneau, 2012), what is happening in real time in other more remote parts of the planet and meet with anyone by video conference (ramonet, 2001 and 2002). 3. recently, the former pentagon software chief claimed that china had won the artificial intelligence battle with the united states, a battle they have been fighting for years. 4. in this sense, the scientific project human brain project, funded by the european union and aimed at achieving a deeper understanding of the brain at a time of astonishing advances in computing and digital technologies, available at https://www.humanbrainproject.eu/en/follow-hbp/news/ebrains-selected-for-theesfri-roadmap-of-european-research-infrastructures/. 5. for a more detailed detail of these advances, see: “quantum physics”, natureportfolio, available at https:// www.nature.com/subjects/quantum-physics. 6. to delve deeper into the issue, you can consult the interesting research carried out by professor tatiana couto in relation to the influence of the media on the covid-19 narratives in different european countries or in the brexit referendum. coutto, t. (2020), “half-full or half-empty? framing of uk – eu relations during the brexit referendum campaign”, journal of european integration, 42: 5, 695-713, doi: https://doi. org/10.1080 / 07036337.2020.1792465. https://www.humanbrainproject.eu/en/follow-hbp/news/ebrains-selected-for-the-esfri-roadmap-of-european-research-infrastructures https://www.humanbrainproject.eu/en/follow-hbp/news/ebrains-selected-for-the-esfri-roadmap-of-european-research-infrastructures https://www.nature.com/subjects/quantum-physics https://www.nature.com/subjects/quantum-physics https://doi.org/10.1080 https://doi.org/10.1080 lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 427 all this, on an increasingly interdependent and interconnected planet thanks to an unprecedented transport revolution. so, it is easier, faster, and cheaper to catch a plane or a high-speed train and get to london than to go to your grandfather's town in teruel. not to mention the exorbitant whim of some who have recently set out to get out of the atmosphere and do space tourism (street, 2021). all this linked to the impact of the planet by other viruses, some of them older and often forgotten, such as hunger and environmental degradation. hunger is a scourge that once again hits a tenth of the world’s population, the most vulnerable and forgotten, with the worst data in the last decade. these are figures that hurt: 811 million people (fao, 2021); while another 39% are overweight, 1.9 billion adults, (who, 2021a) and 931 million tons of food were wasted in 2019 (unep, 2021). the environment, increasingly degraded, shows us helplessly how nature is destroyed before our very eyes, as is the case of the mar menor and an incessant and dangerous rise in temperatures. despite repeated warnings and to the utter frustration of the intergovernmental panel on climate change (ipcc, 2021), extreme weather disasters intensify, almost always lashing the most vulnerable parts and people on the planet. we have reached a point where there is almost more plastic than fish in the sea and our garbage reaches space7. in short, a series of unprecedented events that decade after decade have shaken the foundations of our world in this 21st century and its political, social, economic, cultural, and environmental organization as we knew it or understood it to date. ii. the sustainable development goals and human rights key elements of the new normality faced with this panorama, which to some may seem bleak and can cause from echo anxiety or solastalgia, to depression; others prefer to continue as if everything were the same, hypnotized watching their different screens or television series without considering any type of change. however, some, still few, consider that this is a crucial and exciting moment that will mark the future and our survival, and therefore requires our commitment, work, enthusiasm, and urgent action. the pandemic, which has taken the lives of more than 5 million people around the world and continues to plague us, once again provides us with an excellent opportunity to extract valuable lessons and change the things that we did not see in the previous crises of this new millennium. and this time, believe me, we cannot miss them. in the last crisis, it was not clear to us that the important thing was to rescue the people and not the banks immersed in a global capitalist system governed by speculation and deception, based on the depletion of natural resources and that fosters growing inequalities. the answer then was the curtailment of our achievements in terms of social 7. recently google and facebook have decided to prohibit content denial about climate change (la vanguardia 2021). the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 428 rights: in health, education and allowing the evictions of thousands of vulnerable people and a growing job insecurity. just think of the famous mini-jobs, pensioners, or the situation of the thousands of young people who, past thirty, today, cannot become independent (el economista, 2021). although some revealed themselves occupying wall street or the puerta del sol, shouting that they do not represent us. but not everything was broken. companies began to become aware, and an incipient corporate social responsibility began, which was reflected in the beginning of the global compact agreed in 2000 (un, 2000a). at the international level, under the auspices of the united nations, states began to cooperate on global issues of common interest such as: the global compact on migration and the global compact on refugees in 2018 (un, 2018a; 2018b), the addis ababa action agenda on cooperation (unctad, 2015a), the paris agreement on climate change in 2015 (unfcc. 2015) and the approval of the rome statute in 2000 and the entry into operation of the international criminal court in 2002 (un, 2000b). in the first crisis, that of 9/11, terror took hold of us, allowing arrests, torture and a growing islamophobia, regardless of any minimum guarantee of a rule of law. the execution of bin laden or the creation of guantanamo, among other things, whose principal was recognized with nothing less than the nobel peace prize. unilateralism was imposed and the united states deployed all its hegemony beyond its borders, normalizing unilateral military interventions, repressive economic sanctions, and a fierce trade war with tariffs. while the world attended the us military incursions undaunted, with the doubts at times of the nato allies and the immobility of the united nations security council in iraq, afghanistan, or syria. his withdrawal from the paris agreement or the proclamations of donald trump via twitter with his america first8 and an unprecedented assault on congress, one of the cradles of modern democracy. but why is the covid-19 crisis different from the previous ones? and what lessons should we learn and take advantage of as a great opportunity? how should we proceed? these are the key questions that we will try to answer below. the crisis generated by the pandemic has a series of elements that make it different from the previous ones, namely: at first glance it just seems like a health crisis. however, although its origin is still unknown for certain -who knows if one day we will succeedthere are some indications behind it that suggest that it is a zoonosis, in which several hypotheses are considered that suggest that it comes from the sympathetic pangolin or of bats (diez 2021). 8. a motto that happens to be quite reminiscent of the title of the book primero la gente, by cernea, m. (1995), méxico: fondo de cultura económica. lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 429 zoonoses are not something new, they have been living with us for a long time with diseases such as salmonellosis, tuberculosis or toxoplasmosis, a mandatory and dreaded test for pregnant women. but what is new is its affectation, intensity and virulence that on previous occasions we had managed to avoid as with the sars (severe acute respiratory syndrome) of 2002-2003 that in china that caused 774 deaths (cdc 2021a and who, 2021c), the swine flu (h1n1) in 2009, which the who estimates caused more than half a million deaths worldwide (cdc 2021a), mers in 2012 in the middle east with 866 deaths (who, 2021c) or ebola in 2014 in central africa that between 2014-2016 caused 11,308 deaths in sierra leone, liberia and guinea and 2,299 in the democratic republic of the congo between 2018-2020 (who, 2021c). we are therefore faced with the proliferation of new pathogens that, as the scientific community indicates, partly come from environmental degradation. thus, in a recent scientific study, it is pointed out that half of the infectious diseases that occurred in the last century were the result of changes in land use, agricultural practices, and food production (o’callaghan, 2020). before the global explosion of the pandemic in 2020, the world economic forum's global risks report, for the first time in its 15-year history, listed environmental risk among the top positions, including climate change and biodiversity (wef 2020). and in its 2021 report (wef, 2021), it indicated among the most likely risks of the next ten years, extreme weather, failure of climate action and man-made environmental damage. and, on the other hand, among the risks with the greatest impact, in the first place, infectious diseases, followed by the failure of climate action and other environmental risks. so, this pandemic, whose origin is health-environmental, produces therefore an unprecedented social, economic, and political crisis. it is a crisis that affects almost all the countries of the world equally, without distinguishing their level of development and wealth and that, for several months gradually, has remained and persists in some states with their population confined and a large part of their economic, social, educational activities, etc. almost paralyzed (hale 2021). overnight, in spain on the fateful march 11, 2020, our life changed. it seemed as if time had stopped and many of us listened to the news in amazement. during the following days, we watched the events, and the days unfold with some disbelief. we looked like the unwitting protagonists of the film on groundhog day and suddenly we were deprived of something as essential and basic as our freedom of movement and in many other cases, unfortunately, they were deprived of the most asset: life. what follows below, for reasons of space and because to a large extent it is already known and experienced by all, i will not dwell on it and will go on to highlight a brief decalogue of some of the lessons that we could extract from this unusual experience. the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 430 1. social, economic and development inequalities disappeared. the virus did not distinguish between rich and poor, children, young and old, women and men. the contagion was the same for everyone, although later its consequences, lethal or less, were different, depending on some of these conditions and the place where you will find yourself. 2. we realize the power of interconnection and experience in our own flesh the butterfly effect and the theory of chaos (gleick, 1994). thus, a distant thing originated in china could and continues to alter the entire world. you cannot raise borders or create walls that protect or immunize us in an interconnected world even though many still strive. 3. suddenly, we realized who the essential workers are: sanitation workers, cleaners, supermarket cashiers, public transport drivers, media, transporters, caretakers, delivery men, etc., who risk their lives every day to be able to continue forward and to whom it was dedicated with a daily applause. jobs that are generally not well paid and that do not enjoy great professional stability. 4. our competitive economic model was transformed, going from fierce competitiveness to collaboration. the companies transformed their production with high doses of ingenuity to help -or who knowsmaking the difficult situation an opportunity. automotive companies made respirators, those for alcohol and hydrochloric gel cosmetics, those for pesticides bleach and disinfectant products, and the fashionable face masks. and coincidentally, some of these companies are the ones that contribute the most to environmental degradation. 5. our individualism and social egocentricity became cooperation and solidarity. some discovered the loneliness and harshness of the lack of human contact that characterizes us as social animals, as aristotle argued; others spoke to their neighbours for the first time, all helping and caring for each other. the cooks, since they could not work and did not want to waste their gender, prepared solidarity meals for those who could not eat, and people created support networks for those who could not go out buying food and medicine for them. 6. we discovered the value of what is important, of the small things that made our day happy and to which we so often do not give importance or do not have time to dedicate: art (music, literature, cinema, etc.), cooking (the yeast ran out in supermarkets to make bread and cakes), the value of company and the pleasure of a good conversation, playing with our children, seeing through our plants how spring was coming, the pleasure of dolce far niente and boredom, etc. 7. we rediscovered the value of nature. the traffic stopped. the streets and highways remained deserted. in the sky there were only clouds and stars and no planes passed by (only sometimes a helicopter to dissuade those who took refuge on the rooftops to breathe fresh air, exercise their body or bathe in the sun's rays). little by little, we realized in disbelief, how in just a few days, nature was reconquering its space and healing our damages. when they allowed us to go out in the parks and green spaces and we forgot for a while the car and the shopping centres. people dusted off their bicycles to get around and planted gardens on their terraces. lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 431 8. technology became our great ally. it allowed us to keep in touch with our loved ones thanks to video calls and for those who were able to continue working. teleworking was imposed thanks to the commitment and effort of thousands of people who worked without hours and sometimes assumed the costs out of their own pockets without compensation. we all put our effort and responsibility to move forward to the best of our ability. and for those who could not work, aids in the form of ertes or minimum income were articulated by the authorities. even for the first time the un spoke of the need to guarantee a universal basic income un 2020a). 9. at the international level, we went from confrontation and unilateralism to an incipient collaboration and multilateralism. states coordinated to share information and even the rulers of the most sceptical countries such as england, the united states or brazil. after overcoming the virus, its leaders changed their policies, betting on caution and vaccination. joint purchases of vaccines were organized at the european level and limits were placed on the demands of large pharmaceutical companies with demands for delays and non-compliance, a debate began on the nationalization of patents. 10. science worked against the clock and achieved, thanks to an unprecedented joint effort, something that until now seemed unthinkable: several vaccines in record time. the scientific community put their knowledge, tireless work, effort, and experience at the service of the pandemic, they experimented with new treatments, the teams collaborated and shared their protocols, the states injected public money into science and innovation, etc. thus, it could be concluded that the pandemic forced us, not only to stop but also to change and reinvent ourselves. now that it seems that in some parts of the world, we are recovering a certain normality, the question we should ask ourselves is: what new normality do we want? faced with this question, we cannot and must not cancel, once again, all the lessons that this pandemic has left us. the circumstances require a necessary and profound change, which until now seemed unthinkable. personally, we would not like to recover the old normality and we consider that if we did, the consequences for future generations would not be desirable. in case of advocating a different new normality, the question would be how this should be. for its design we already have at our disposal two tools that, in our opinion, can have an important value and mark the roadmap to follow. we refer specifically to two powerful and tested instruments such as the sustainable development goals approved in 2015 and human rights, which can guide us in building a more sustainable, egalitarian, and supportive world in which there is an equal place for everyone. the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 432 the sustainable development goals are part of the 2030 agenda for sustainable development approved by the united nations general assembly in 2015 (unctad, 2015b). an agenda in which, under the title "transforming our world to face the challenges that humanity faces in the next two decades", an ambitious program is established. this is specified in 17 interconnected objectives articulated thematically around those known as the 5 "ps" planet, people, prosperity, peace, and partnerships with the aim of leaving no one behind as a leitmotif. specifically, these 17 sustainable development goals (hereinafter sdg) are: 1. end of poverty. 2-zero hunger. 3health and wellbeing. 4-quality education. 5-gender equality. 6clean water and sanitation. 7affordable and non-polluting energy. 8decent work and economic growth. 9industry, innovation, and infrastructure. 10reduction of inequalities. 11sustainable cities and communities. 12. responsible consumption and production. 13. climate action. 14. underwater life. 15. life of terrestrial ecosystems, 16. peace, justice and solid institutions and 17. alliances. an agenda, which, far from being perfect (swain, 2018 and winkler, 2017), constitutes a good starting point for the following reasons: 1. sdg and human rights. many of the 17 sdgs are formulated in such a way that they include the provisions of the main international human rights treaties9 and a series of important values such as peace, equality, equity, justice, etc. on the other hand, the sdgs cover a wide range of critical aspects of the human rights agenda, from the right to water and access to justice, to gender violence and the right to adequate housing, thus collecting traditional human rights more consolidated first generation along with more recent and controversial ones such as the right to sustainable development or peace (solanes 2018). 2. it is an unprecedented agenda due to its scope, recipients, and adoption process. the sdgs, unlike previous initiatives such as the millennium development goals (un 2000c), have a universal scope that includes not only all states, both north and south, but also exceeds the westphalian model and has multilevel recipients. ranging from institutions at all levels, to companies, ngdos and in general, it is aimed at the entire civil society. in addition, its design for the first time had broad citizen participation through a global survey conducted by the united nations, my world 2025, in which more than 7 million people from 194 countries participated, making it the largest-scale survey ever conducted. until now (undp, 2015). 3. indivisibility. the integral nature of the sdgs is recognized in line with the principle of indivisibility of human rights. it is thus recognized that the sdgs must be implemented at the same time according to the resources and capacities of each state in an indivisible and integral way. 9. a comparative analysis of this interrelation can be seen in “the human rights guide to the sdgs” of the danish institute of human rights available at the following link https://sdg.humanrights.dk/es. https://sdg.humanrights.dk/es lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 433 4. specification and follow-up. the 17 sdgs are specified in 169 targets and 232 specific, measurable, achievable, realistic, and temporary (smart) indicators that allow for exhaustive monitoring. in addition, a high-level political forum on sustainable development (hlpf) was created as an international strategic platform for its monitoring and the states report regularly on its progress (un, 2013). the second instrument that is fundamental in the design of this new normality is human rights. only 3 years ago, in 2018, coinciding with the commemoration of the 70th anniversary of the universal declaration of human rights, the secretary general of the united nations, antonio guterres recalled the transcendental words contained in his preamble and that it is important not to forget: “considering that ignorance and disregard for human rights have led to outrageous acts of barbarism for the conscience of humanity, and that it has been proclaimed, as the highest aspiration of man, the advent of a world in which human beings, liberated from the fear and misery, enjoy freedom of speech and freedom of belief” (un, 1948). this declaration constitutes one of the most important patrimonies of humanity of the last century, to leave behind violence and preserve human dignity. a common ethical minimum over state borders, different races or religions, economic conditions and that must become the ethos that guides us. different balances, without a doubt, can be made of its seven decades of validity (cefd, 2019) but one thing is uncontroversial paraphrasing the secretary general of the united nations “we have a common vision of what makes us human: a set of rights that are at the same time universal and indivisible, that balance the individual and the collective, and that inspire us in our search for a better world for all, including future generations” (un, 2020b). precisely in july 2020, the united nations published a report entitled covid-19 and human rights. in this we are all together, in which he insisted on the decisiveness of human rights for the response and recovery of this pandemic. also in 2020, the secretary general of the united nations on the 75th anniversary of the united nations published another document entitled the highest aspiration (un, 2020b). call to action for human rights. from the joint reading and analysis of these two documents, the following conclusions can be drawn: 1. human rights put people at the centre. as the title of the report points out, we are all in this together. responses that are shaped around human rights and respect them are better suited to defeat the pandemic, guarantee health care for all, and preserve human dignity. in addition, this bill of rights makes us focus on those who suffer the most, the reasons for inequality and what can be done about it. the bill of rights now paves the way for us to emerge from this crisis for more equitable and sustainable societies, development, and peace. 2. the pandemic has led to three of the human rights being placed at the forefront at this time. the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 434 a) the right to life and the duty to protect it. all states have a duty to protect human life, including addressing general conditions in society that pose direct threats to it. b) the right to health and access to health care. every human being has the right to the enjoyment of the highest possible level of health that allows him to live with dignity. all people, whatever their social or economic status, should have access to the health care they need, in this way, as the un points out, universal health coverage (uhc) must become an imperative throughout the world. c) the right to freedom of movement. restrictions on freedom of movement must be strictly necessary for that purpose, proportionate and non-discriminatory. if there is effective and widespread access to evidence and tracing, and if selective quarantine measures are taken, the need for more indiscriminate restrictions can be mitigated, especially for the most vulnerable groups such as refugees or asylum seekers. 3. the report also highlights six key ideas in relation to human rights and the pandemic: a) the priority is to protect people's lives. protecting livelihoods helps us do this. the economic and social repercussions need to be mitigated along with the public health response. where it is important to prioritize measures that guarantee basic economic and social rights. the importance of the responsibility of governments to protect people by guaranteeing these rights has never been so clearly demonstrated, and how this protection increases resilience10. b) the virus does not discriminate, but its repercussions do. the responses must be inclusive, equitable and universal; because otherwise, they will not serve to defeat a virus that affects everyone equally, regardless of status. if the virus persists in a community, it is a threat to all communities, discriminatory practices endanger us all. the virus and its repercussions are disproportionately affecting certain communities, highlighting underlying structural inequalities and pervasive discrimination that need to be addressed. discrimination should not have a place in our response, inclusion is what best protects us all. in this sense, equality, non-discrimination, and inclusion occupy a central place in this crisis and new challenges arise regarding inequality, discrimination, and exclusion. states have the primary responsibility to counter discrimination and hate speech, but all actors, including social media companies, must play their part. 10. some examples pointed out by the report in this regard are: providing emergency water to marginal neighbourhood’s; suspend evictions for not paying rent during the crisis; preserve jobs and wages with specific economic measures, in some cases practically facilitating universal income, and support for employers and businesses; grant or extend sick leave with pay or unemployment benefits; guarantee emergency shelter for the homeless; expand responses to domestic violence for victims of abuse o provide childcare services to those who work in essential services. lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 435 c) everyone must be involved in the answer. it requires a form of participation that translates into open, transparent, and responsible responses. in this we are together. to effectively combat the pandemic, we all must be part of the response. to this end, people must be informed and committed to the decisions that affect them, and see that the measures taken are necessary, reasonable, and proportionate to fight the virus and save lives. all of us must do and do our part, but the most effective way to enhance participation is through data, persuasion, involvement, and collective awareness. people need the power of action and voice in every crisis. now more than ever, governments need to be open and transparent, being responsive to and accountable to the people they seek to protect. civil society organizations, as well as the private sector and businesses, have a lot to contribute, and it must be made easier for them. the best way to ensure that the public continues to support the measures is for governments in an open and transparent way to count on the people in making decisions that affect them. it is important to be honest about the extent of the threat posed by the virus, and to show that the measures are reasonable, likely to work, and will not last longer than necessary. whether or not they are met depends on building trust, and trust in turn depends on this. authorities must be open and transparent when making decisions and be ready to listen to criticism and respond to it. governments are held accountable to the people they seek to protect. democratic oversight of the response to the pandemic, especially the use of emergency powers, must be maintained. in this sense, states must respect and protect, among other rights, freedom of expression and of the press, freedom of information, and freedom of association and assembly. the crisis raises the question of how best to counter harmful speech while protecting freedom of expression. in this regard, it is noted that the most effective response is accurate, clear, and information from sources that people trust. d) the threat is the virus, not the people. emergency and security measures, if needed, must be temporary and proportionate and designed to protect people. the pandemic poses a serious public health threat with wide implications for peace and security. law enforcement has the role of supporting the fight against disease and protecting people. emergency powers may be needed, but broad executive powers, granted quickly and with minimal oversight, carry risks. tough security responses weaken the health response and can exacerbate current threats to peace and security or create new ones. the best response is the one that aims to respond proportionally to immediate threats, while protecting human rights within the framework of the rule of law. at this time, peace must reign, so we can focus on defeating the virus. thus, in this response, justice, moderation, and respect for the rule of law are essential. in this sense, protecting the most vulnerable in humanitarian crises is a priority. this poses new human rights challenges with respect to peace and security and the rule of law. the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 436 e) no country can overcome this situation alone. global threats demand global responses. international solidarity is essential in the global response. no country can overcome this alone, and some countries are better prepared to respond than others. similarly, no country can afford to leave people behind. the world is not able to do without any country if it really wants to defeat the virus. we must ensure that all countries are equally effective in their responses. the virus has shown that it does not respect national borders: if one country fails in its efforts to control the spread of the virus, all other countries are at risk. the planet is just as strong as the weakest healthcare system. the international community has joint responsibility for solving this problem. economically developed states have a responsibility, a special interest, and a moral obligation, to help the poorest developing states. we cannot continue to let our vaccines expire or inject additional doses until they reach every corner of the planet. f) when we recover, we must be better than before. a chinese proverb says, "don't be afraid of slow changes, just be afraid to remain immobile" and another nigerian saying states: "in times of crisis wisdom builds bridges and stupidity dikes". the crisis has exposed weaknesses that human rights can help alleviate. how we respond now can help shape our future and that of future generations. we must ensure that we do no harm by focusing on the immediate crisis. it is essential to consider the long term when planning our responses in the short term. the crisis is also exposing certain weaknesses in the way public services are provided and inequalities that prevent access to them. human rights help us respond to immediate priorities and develop prevention strategies for the future, including our responsibilities to generations to come. the crisis threatens to lose us many achievements in the fields of development and human rights. in the long run, it will also be necessary to draw deeper lessons from this crisis, including on how to avoid a recurrence of the problems we are currently facing by creating protection systems and strengthening resilience. our ability to learn from this pandemic will determine how effectively we respond not only to future pandemics, but also to other global challenges, the most pressing of which is undoubtedly climate change. life sometimes sends us gifts wrapped in trouble. in this way, our response today is transcendental and gives us the unique opportunity to correct our course, knowing that if what we do does not work, we will have to do something different. iii. laying the foundations for the future challenges of humanity saint john of the cross maintained that "to go where you don't know you have to go where you don't know." a finding that is evident in the current situation and an uncertain future full of unprecedented challenges for humanity. it is urgent to act, as the united nations has proposed to us in its recently proclaimed decade of action for sustainable development, in which it urges us to accelerate plans aimed at meeting development goals in view of the lack of tangible progress in many countries (guterres, 2019). lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 437 in this necessary action, it is essential to regain faith in that concept of humanity that inspired the universal declaration of human rights more than seven decades ago and to trust the zen proverb that says, “move and the way will open”. in this journey, as the united nations points out, the condition and human values that we share must be a source of unity, not division. we must give people hope and an ideal of what the future may hold. the human rights system helps us to rise to the challenges, opportunities and needs of the 21st century and to rebuild relationships between the people and leaders. it is about achieving worldwide the stability, solidarity, pluralism, and inclusion on which we all depend. human rights and the sdgs show us the way in which we can transform hope into concrete actions that have a real impact on people's lives. it should never be a pretext for power or politics because it ranks above both (un, 2020b). collective action is the only answer to the multiple crises that humanity is going through, some even more urgent and profound than the pandemic (wef, 2021)11. we live in a world that offers unprecedented opportunities. the extraordinary technological advances and the global economic advances achieved have lifted millions of people out of poverty and we have an agreed framework of action for the path to follow, which is the 2030 agenda for sustainable development (un, 2019). the pandemic leaves us many lessons that this time we cannot waste. a very valuable one is that everything can be changed. even what, to date, we believed to be immovable overnight. and this time we cannot fail. it is time to reverse the famous phrase of gatto pardo, by giuseppe tomasi di lampedusa and "change everything, to change everything" because our existence more than ever depends on it. we need to imagine a new, more sustainable future where people are once again the centre, and no one is left behind. some will see these words as a utopia or perhaps as the mere goodness of the language of international institutions. but in this sense, it is necessary to recall two well-known slogans from the french may 68 "let's be realistic, let's ask for the impossible" and "this concerns us all", as well as the words and dreams of people who with their example changed the world, such as they were thomas more, martin luther king, nelson mandela, gandhi, mother teresa of calcutta and many more. in this task of imagining a new future, the ideas, as will be pointed out below, we already have them. now we need to act. 11. according to the latest report from the world economic fund, among the most likely risks in the next ten years are extreme weather, failure of climate action and human-caused environmental damage; as well as the concentration of digital power, digital inequality and the failure of cybersecurity. and the risks with the greatest impact will be infectious diseases, the failure of climate action and other environmental risks, as well as weapons of mass destruction, the crisis of livelihoods, the sovereign debt crisis, and the breakdown of infrastructure of the information technology. world economic fund, “global risk report 2021”, available at https://es.weforum.org/reports/the-global-risks-report-2021. https://es.weforum.org/reports/the-global-risks-report-2021 the sdgs and human rights key instruments in the response and recovery from the pandemic the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 438 in this sense, in the construction of this model that can respond to the future challenges facing humanity, the proposals formulated by some academic authors on migration, economic, labour, social, cultural and political issues constitute an important roadmap to be taken into account. more than ever, we need a utopia for realists, as bregman claimed (bregman, 2017), in which perhaps borders will disappear for people and our mare nostrum will no longer become a graveyard. it is convenient to remember that they are the only borders that remain, since those of capital and goods have almost disappeared. regarding the workplace, it is necessary to rationalize work, as skildesky points out (skildesky, 2012), betting on conciliation and establishing a 15-hour work week or a universal basic income, given the challenges posed by the fifth industrial revolution and the aging of the population. in economic matters, it is necessary to reimagine capitalism, as henderson suggests (henderson, 2020), and replace the maximization of shareholder value with the creation of great products that are at the service of social good. in this sense, it seems that some important businessmen are already working in this line, such as bill gates, 2006 prince of asturias award winner, with his gates foundation, the largest private foundation in the world, which in 2017 made the largest donation of the century for an amount of 4.6 billion dollars directed mainly to health and education (s.d, 2017). in addition, it has committed to donate 99.6% of its assets valued at 129 billion dollars (sandler, 2021). warren buffet in 2020 distributed 40 billion dollars of his fortune estimated at 73.5 billion to non-profit organizations (wang, 2020). on the other hand, if we measure the contribution considering the percentage of the net worth, the most generous donor is george soros. the hungarian has donated 64% of his original fortune, estimated in 2020 at 8,600 million, has distributed more than 15,000 million to non-profit organizations through open society foundations, an international network of donations that supports the advancement of justice, education, public health, and the independent media. he recently he has made another important contribution of 32,000 million (más de xaxas, 2021). but without a doubt, the historical feat has been that of billionaire charles feeney who on september 27, 2020, broke the record by achieving the goal of giving away his fortune of us $ 8,000 million in life and being left with nothing (bbc, 2020). an unstoppable philanthropic business movement (new york times, 2017), perhaps inspired by figures like andrew carnegie and readings like david callahan's the givers: wealth, power, and philanthropy in a new gilded age (callahan, 2017). continuing in the economic field, it is necessary to rethink the measurement of our wealth and its distribution. from linear growth and the measurement of gdp, which only benefits that 1% that accumulates what the other 99% needs, as stiglitz points out (stiglitz, 2016), to the use of other indices, such as the social progress index or the implanted happiness index (happy index)12 already in bhutan, with which costa rica turns out to be the happiest country on earth. 12. happy planet index, available at http://happyplanetindex.org/ http://happyplanetindex.org lucía aparicio chofré the age of human rights journal, 18 (june 2022) pp. 425-444 issn: 2340-9592 doi: 10.17561/tahrj.v18.7105 439 in the social and cultural sphere, the objective is to recover altruism, cooperation, and trust as bregman warns as the natural impulse of the human being (bregman, 2021). it is time, as han suggests to us (chul han, 2012), to wake up society from fatigue and hyperculturality (chul han, 2018), to lift our eyes beyond a screen to recover the culture of kindness and to return to rituals to build a more positive, trusting, and confident society. hopeful (chul han, 2013). to finally build a tailored society and human time, in which we may rediscover, following schumacher (schumacher, 1978), how small is beautiful, how education is the greatest resource13 and nature is part of our own essence. because in case of not doing so, the alternative would be, as chomsky warns, extinction (chomsky, 2020). to conclude, it can be said that neither the universal declaration of human rights nor the sustainable development goals are certainly the panacea, but we could apply the idea that churchill used when he referred to democracy, stating that it was the least bad of the systems. possible politicians, except for everyone else14. this same idea was already embodied by aristotle in the nicomachean ethics when he affirmed that democracy was the least bad of deviations (aristotle, 2005), -and in politics, alluding to democracy as the most moderate perversion (aristotle,1988). the values and ideals that inspire the universal declaration of human rights and the sustainable development goals constitute, without a doubt, a good starting point for the construction of a future that allows us to seek and achieve the fundamental purpose of our lives, which is not other than peace, happiness, and freedom, as the declaration of independence of the united states already stated15 and more recently, we have been reminded by pope francis (centofanti, 2019) and the dalai lama (dalai lama 2014). and how could this long-awaited happiness be achieved, in this seneca gives us some clue “to be happy you need to eliminate two things: the fear of a bad future and the memory of a bad past” (seneca, 2016). 13. in this sense, according to the conference presented by professor vicente bellver in the congress "higher education, human rights and sustainable development goals no. 4 (education) in the context of the internationalization of higher education entitled" human rights and higher education ", one of the essential pillars of that education would be the inclusion with a transversal character in all levels and spheres of human rights education, in accordance with what was established in the ii world congress on human rights in vienna in 1993 and in the world program for human rights education. humans in their four stages. for more information, see the united nations page on these world programs, available at https:// www.ohchr.org/sp/issues/education/educationtraining/pages/programme.aspx 14. churchill, w. “many forms of government have been tried, and many more will be tried in this world of sin and suffering. nobody claims that democracy is perfect or omniscient. in fact, it has been said that democracy is the worst form of government, excepting all the other forms that have been tried from time to time”. house of commons, november 11, 1947. 15. “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness” preamble to the declaration of independence, available at https://www.archives.gov/founding-docs/ 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https://www.who.int/health-topics/middle-east-respiratory-syndrome-coronavirus-mers#tab=tab https://www.who.int/health-topics/ebola/#tab=tab_1 the sdgs and human rights key instruments in the response and recovery from the pandemic abstract i. the pandemic as a challenge for a new paradigm shift ii. the sustainable development goals and human rights key elements of the new normality iii. laying the foundations for the future challenges of humanity references the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 93 the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks sanya darakhshan kishwar1 abstract: child marriage is an ever-persisting human rights issue that has been addressed multiple times. however, despite the existing international frameworks and theoretical deliberation, the practice still continues to thrive across the globe. this presents a ground for review of non-legal causes of child marriage. this paper presents an account of child marriage as a human rights issue and reviews such causes by classifying them as basic factors and catalysts, with basic factors being aggravated by catalysts. the author discusses armed conflict as a catalyst that increases impact of basic factors. additionally, the paper attempts at presenting recommendations to inhibit the effect of such causal factors. keywords: child marriage, forced marriage, armed conflict, child rights. summary: 1. introduction 1.1. legal frameworks addressing child rights and child marriage 1.2. ineffectiveness of legal frameworks 2. child marriage as a human rights issue 3. minimum marriageable age 4. non-legal causal factors for child marriage: ‘basic’ factors 4.1. traditional factor 4.2. economic constraint 4.3. armed conflict 5. non-legal causal factors for child marriage: armed conflict as ‘catalyst’ 6. recommendations 6.1. accurate data collection 6.2. creating work and education opportunities 7. conclusion 1. introduction one of the sustainable development goals, as iterated by the united nations general assembly, is to end the ‘harmful practice’ of child marriage by 2030 (unga, oct.2015 § 5.3). the practices of child, early and forced marriage (‘cefm’) are often clubbed together (unhrc, 2019; unhrc, 2015; unhrc, 2014) and addressed as a ‘harmful practices’ (unga, jan.2015 § 7). to elaborate, early marriage includes child marriages as well as marriages that happen earlier than they were intended to be because of undesirable circumstances, be it economic, social or cultural (unhrc, 2014 § 5). early marriage need not necessarily involve children and involves consent on the part of either or both parties to escape an extenuating circumstance. had such circumstances been absent, either or both parties would have married at a later age. forced marriage, on the other hand, is also not age-specific as individuals could be married off forcefully at any age (unhrc, 2014 § 6; cedaw/crc, gc 18 § 22). simplistically, forced marriage lacks ‘free and full consent’ on part of one or both contracting parties, regardless of their age. child marriage is a specific form of forced marriage where there is an absence of free, full and informed consent owing to the age of either or both contracting parties. the united nations children’s 1 o.p. jindal global university, haryana, india (skishwar@jgu.edu.in). mailto:skishwar@jgu.edu.in the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 94 fund (‘unicef’), in its report on harmful practices, defines child marriage as ‘formal marriage or informal union of any child under 18 years of age’ (unicef, jun.2021). the right to marry with full and free consent is a recognized human right, available equally to both men and women (udhr, art 16.2; iccpr, art 23.3; icescr, art 10.1). in 2014, the committee on the elimination of discrimination against women (‘cedaw committee’) and the committee on the rights of the child (‘child rights committee’) issued a joint general recommendation on the elimination of discrimination against women and girls. the recommendation noted that child marriage or early marriage ‘is any marriage where at least one of the parties is under 18 years of age’ and considered ‘child marriage’ to be ‘a form of forced marriage, given that one and/or both parties have not expressed full, free and informed consent’(cedaw/crc, gc 18). 1.1. legal frameworks addressing child rights and child marriage states bear a positive obligation to safeguard the rights of their subjects at all times. this state obligation flows from right to life of every person, which is recognized by international and regional human rights instruments. article 2 of the universal declaration of human rights (‘udhr’) and article 6 of the international covenant on civil and political rights (‘iccpr’) mention the right to life of all persons. regionally, article 2 of the european convention on human rights (‘echr’) mentions the right to life of every person as well as a duty of the state to protect the said right. the european court of human rights (‘ecthr’) explains the state duty to be twofold, i.e. refraining from unlawfully and intentionally taking life of those within its jurisdiction (l.c.b. v. uk, 1998) and; to safeguard the lives of those within its jurisdiction (câmpeanu v. romania, 2014 § 130). the echr also places a ‘procedural’ obligation on states to take preventive measures to safeguard life of those under its jurisdiction (emin v. cyprus, greece and the united kingdom, 2010); and an ‘assistive’ obligation on states where evidences are situated, to assist the investigating states (rantsev v. cyprus and russia, 2010 § 245). this, however, does not imply a contracting state to exercise universal jurisdiction (ibid § 244). the state’s obligation, however, also extends to refugees in the state’s jurisdiction. the ecthr has clarified that states cannot expel (m.a. v. france, 2018; salah sheekh v. the netherlands, 2007 § 135) or refuse admission (n.d. and n.t. v. spain, 2020 § 178) of refugees at border or high seas (hirsi jamaa and others v. italy, 2012). the obligation of hosting state includes ensuring the safety of returning refugee to a ‘safe third country’ and states have procedural obligation to ensure the safe nature of such third countries (ilias and ahmed v. hungary, 2017 §§ 124-141). when it comes to the rights of children, primary focus is on the general right to life of all persons, since a child is also a person. just as the state is obliged to safeguard the right of all persons in their jurisdiction, it has an implied obligation to protect all children in its territory, irrespective of their status as citizen or refugee. article 2 of echr has been observed to include the right to life of all persons irrespective of their age (boso v italy, 2002). protecting children is a state obligation since children are deemed to be more vulnerable than adults. the ecthr has clarified this obligation to be stronger than any consideration which relates to the child’s status as an irregular migrant (mubilanzila mayeka and kaniki mitunga v. belgium, 2006 § 55; muskhadzhiyeva and others v. sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 95 belgium, 2010 §§56-58; popov v. france, 2012 § 91). more specifically, the convention on the rights of the child (‘crc’) guides a state to place primary consideration on the ‘best interests’ of the child while making laws that would relate to children (rahimi v. greece § 108; popov v. france §140). similar obligation is also placed on states by the echr, where they should provide special protection and care to children and ensure reasonable measures to be taken in order to prevent ill-treatment of children (rahimi v. greece, 2011 §§ 60 and 62; khan v. france, 2019 § 73). for example, the ecthr held that the state obligation under article 8 of the echr to respect private and family life cannot be interpreted as requiring a state to recognize a marriage that was entered into below the age of 18 years (z. h. and r. h., 2015). in this case, the applicants had a religious marriage in iran, with their ages being 14 and 18 years. the crc defines a child as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’ (crc, art 1). the convention also imposes an obligation on the state parties to ‘respect and ensure the rights set forth in the [crc] to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’ (crc, art 2). furthermore, it also imposes an obligation on states parties to ‘recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development’ (crc, art 32.1). although this provision does not mention child marriage, it nevertheless implicates it, because child marriage interferes with a child's education and is harmful to the child's health, physical, mental, and moral/social development (loveness, 2015). finally, the crc imposes an obligation on states parties to abolish all ‘traditional practices prejudicial to the health of children’ (crc, art 24.1). child marriage, of course, is one such practice. regionally, with respect to obligations imposed on states by their national constitutions, the constitution of the republic of south africa 1996, section 28 imposes an obligation on the state to ensure that ‘every child has the right[…] (d) to be protected from maltreatment, neglect, abuse or degradation; […].’ international and regional human rights instruments address the issue of child marriage directly or indirectly. although it does not specifically prohibit child marriage, the udhr, nevertheless, deals with marriage. article 16(1) states that ‘[m]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family.’ it is worth noting that the right to marry is granted to ‘men and women of full age’ and not to ‘children.’ in addition, article 16(2) deals with ‘consent to marry’ i.e., ‘[m]arriage shall be entered into only with the free and full consent of the intending spouses.’ laws of many states consider a child to be incapable of freely granting such consent because of his or her immaturity (see, for e.g., rebeca z gyumi v. attorney general, 2017). article 16(2) of the convention on elimination of all forms of discrimination against women (‘cedaw’) is more direct where it states: ‘the betrothal and marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 96 of marriages in an official registry compulsory.’ similarly, the un convention on consent to marriage, minimum age for marriage and registration of marriage expressly prohibits child marriage and notes complete abolition of child marriage as the purpose of the convention. there are only 16 signatories to the convention and 55 state parties till date with many states opting for reservations such as bangladesh which reserved its right to allow child marriage when accorded by personal laws. regionally, the parliamentary assembly of the council of europe has adopted a recommendation to set minimum age of marriage at 18 years, for both men and women, with an explicit prohibition on child marriage (res. 1468, 2005, § 7). similarly, in africa, the maputo protocol obliges the state parties to guarantees men and women equal rights in marriage (maputo protocol, art 6). the african union (‘au’) states that have neither signed nor ratified the protocol yet are botswana, egypt, and morocco. the states that have signed but not yet ratified are burundi, the central african republic, chad, eritrea, madagascar, niger, the sahrawi arab democratic republic, somalia, south sudan, and sudan. the african charter on the rights and welfare of the child (‘acrwc’) prohibits child marriage and mandates state parties to set the minimum age of marriage at 18 years, with no exception (acrwc, art 21.2). morocco, saharawi, south sudan, somalia, tunisia have not ratified the acrwc. 1.2. ineffectiveness of legal frameworks the ineffectiveness of international, regional and national legal instruments that oblige states to ensure best interests of children is evident from the statistics, reproduced below as figures 1 showing increased rate of child marriage in south african countries, most of which have national laws and regional human rights instruments specifically in place to ban child marriage. tanzania, with 37% girls being married below the age of 18 years, has a constitution that mandates protection against gender discrimination and guarantees equality before law (tanz. const., art 12). still, the country had in place, the law of marriage act, 1971 that allowed marriage of girls upon reaching the age of 14 years, while the minimum marriageable age for boys was set to 18 years. this law was declared unconstitutional by the high court of tanzania, in the decision of rebeca z gyumi v. attorney general, where the petitioner argued the law allowing different minimum marriageable ages for girls and boys to be discriminatory on the ground of gender. the court, importantly, also observed the vulnerability of a 14 year old girl to be such that that a consent sought from her would not be free consent (rebeca z gyumi v. attorney general, 2016). therefore, the impugned legislation was declared unconstitutional and the government was ordered to review the legislation in accordance with the state obligations under maputo protocol and african charter on the rights and welfare of the child. this decision was appealed against in the court of appeal, however, the appeal was dismissed (attorney general v. rebeca z gyumi). zimbabwe is another country that has ratified the african charter on the rights and welfare of the child as well as the maputo protocol. according to unicef, 34% of sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 97 girls aged under 18 are married (unicef, 2021). the constitutional court of zimbabwe was approached in the case of loveness mudzuru & ruvimbo tsopodzi v. minister of justice and parliamentary affairs, challenging s. 22 (1) of the marriage act which allowed marriage of girls below the age of 16 years and boys below the age of 18 years, if consent of the minister is sought. the petition also challenged the customary marriages act as unconstitutional since it did not provide for a minimum age of 18 for marriages contracted under customary law. the statutes were argued to be against section 78 (1) of the constitution that mandated minimum marriageable age to be set to 18 years. more importantly, the court observed that children form a vulnerable class that is incapable of representing themselves before the court for seeking relief and that the constitution places an obligation on the state to safeguard their rights. furthermore, the court emphasized the obligation of the state to abide by international instruments that have been ratified, this obligation being stated in the constitution itself, under section 34. it is important to note that the impugned statutes were in place even though the state had ratified the crc, acrwc and the cedaw, all of which mandate a progressive interpretation of the minimum marriageable age, with the cedaw and acrc explicitly mandating against child marriage. while commenting on the periodic report submitted by the state of eritrea, the child rights committee conveyed its concern about the continuing practice of child marriage despite the civil laws formally setting 18 years as the minimum marriageable age (crc, 2008 § 62). it was noted by the committee, that children between 13 and 15 years are married off under customary practices (ibid). this is concerning since the african regional instruments also clearly stipulate 18 years to be the minimum marriageable age. figure 1: region-wise representation of women married below the age of 15 and 18 years source: unicef global databases, 2022. the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 98 as compared to girls, lesser boys are married off before they turn 18, the number of child grooms being 115 million globally. arthur et al., in their paper while examining child marriage laws and minimum marriageable age around the world, find that ‘significantly more countries set a minimum [marriageable] age below 18 years for girls’ than for boys, or allow customary child marriage for young girls, resulting in more child brides than grooms (arthur et al., 2018). this is evident from the data reproduced below in figure 2. much national legislation also deals with child marriage. for example, south africa’s children’s act, through section 12 (2) prohibits the arrangement of marriages or engagements for children below the minimum age for a valid marriage. in india, the prohibition of child marriage act, 2006, through its sections 9, 10 and 11 criminalises child marriage. child is defined in section 2 (a) of the act to be any person below the age of 18 years for a female and 21 years for a male. recently, a bill has been introduced in the parliament to increase the minimum age of marriage for female to 21 years (amendment bill, 2021). however, unicef reports that 50 million of the 650 million girls alive today, who were married before they turned 18 years, were from southern and eastern africa (unicef, may 2022). the indian plight is not so impressive either, with about 23% of women aged 20-24, having been married before the age of 18 years (nfhs-5). these concerning statistics depict the situation in countries with national legislations, specifically banning the practice of child marriage. figure 2: region-wise representation of men married below the age of 15 and 18 years source: unicef global databases, 2022. sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 99 though, the prevalence in the practice of child marriage is decreasing globally, still the total number of girls who are married before they turn 18, is concerning. the figure stands at 12 million child brides per year, with the most positive progress having been made by south asia, where the rate of child marriage has decreased by almost a third (unicef, may 2022). douglas observes that reviewing international standards on a particular issue helps states develop better internal policies (douglas, 1997). however, from the above discussion, one can conclude that such review might not be very helpful since the rate of child marriage is still higher in countries with specific legislations banning the practice. this presents a need for finding other factors that have been making such national legislations and regional and international human rights instruments ineffective. the paper attempts at delineating and discussing these non-legal causes, utilizing the doctrinal methodology of research, with an aim to present recommendations to mitigate the effect of such factors. 2. child marriage as a human rights issue in july 2015, the human rights council adopted its first substantive resolution recognizing child and forced marriage as a human rights violation (unhrc, 2015). the human rights council requested the un high commissioner for human rights to organize an expert workshop to review and discuss the impact of existing strategies and initiatives to address child, early and forced marriage (unhrc, 2017) and in the unga’s 71st session, a detailed report in progress in efforts to eliminate child, early and forced marriages from april 2014 to may 2016, was presented (unga, 2016). the child rights committee (crc gc no. 4 (2003) §§ 6, 20) and unicef (unicef 2005) have observed that child marriage is a ‘harmful traditional practice’ because of the impact it has on health of young girls (crc gc no. 4, 2003 §6). child marriage increases the risk of sexual and mental abuse (crc, art 19) as well as domestic violence (kidman, 2017) at the hand of the elder spouse (jensen and thornton, 2003; mathur et al., 2003); sexual health risks (cook et al., 2004), obstetric fisticula (cook et al., 2004), permanent infertility (raj et al., 2009) and even death (unga, 2018 § 6; nour, 2009) due to early pregnancy (nove et al., 2014). even though the risks and consequences faced by boys and girls due to early marriage are different, due to their biological specificities, the practice is unarguably a rights violation for children of both sexes. child marriage violates right to health, which is an important human right mentioned in leading human rights instruments (udhr art 12). in addition to this, crc mandates that children have a right to enjoyment of ‘highest attainable standard of health’ (crc art 24.1) and ‘standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ (crc art 27.1). a child suffers harm in such union and this also affects their mental and social development. when a child is meant to be brought up in an environment conducive for their overall development, child marriage, on the contrary, results in the exact opposite. the crc stipulates an obligation upon states to ensure that ‘best interest’ of child is maintained in both public and private spheres (crc, art 3). child marriage threatens a child’s development, safety, and survival, all of which are pivotal while deciding the best the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 100 interest of a child (crc, 2013 gc 14 §§ 48-79; crc, 2003 gc 4 §§ 6, 20). to decide his best interest, a child should exhibit a certain level of maturity (crc, art 12). interestingly, in absence of consensus over the age of adulthood, states still tend to allow child marriage claiming that maturity could be reached as soon as puberty is attained. however, it is argued that the element of ‘free and full’ consent, a prerequisite of marriage, would still be lacking in such marriages. first, while it is true that these forms of marriages often do not involve ‘consent’ on the part of the bride, it is important to distinguish between ‘consent’ given freely and ‘consent’ given through coercion, lack of information, and other factors surrounding children living under extreme poverty. this is the reason why many legal scholars and ngos that advocate on behalf of children argue that a child by definition, cannot grant consent to enter into a marriage. any such consent by a child to enter into marriage is by definition, coerced, and hence, is null and void. moreover, child marriages are generally arranged by parents. for example, article 15 of yemen’s personal status law, 1992 stipulates no minimum marriageable age and article 23 does not require the bride’s full and free consent. statutory provision mandating 15 years to be minimum marriageable age was repealed in 1999. with marriage decisions being made by the bride’s guardian, such marriages are not consensual in any sense. another study focused on child marriages in ethiopia found that 71 per cent of the child brides had never seen their husbands until after marriage (dagne 1994, pp. 35–38). a child tends to have restricted capacity to take free decisions under the guardianship of his parents/guardians. hence such consent is tainted with the parent’s/guardian’s views and not ‘free and full’, as required (pupavac, 2001). second, and more importantly, it is not the lack of consent that makes cefm practices harmful. it is the very nature of cefm practices that makes them harmful. in other words, child marriage, whether undertaken with the consent of the child or not, subjects the child to a life of suffering, exploitation, and degradation. the practice of child marriage violates multiple human rights as discussed above. 3. minimum marriageable age it is very important to draw a clear distinction between the age of adulthood and the minimum marriageable age. age of adulthood might be determined by taking into consideration factors like maturity (spear, 2004), minimum marriageable age has to be determined by keeping in picture biological (stöppler, 2019) and cognitive development (blakemore and choudhury, 2006), as well as sexual maturity of the person (eriksson, 1992). it is possible that according to a national legislation, a person might reach the age of legal majority and still not have attained the marriageable age. for example, according to section 3 of the indian majority act, 1875, every person who is domiciled in india shall attain the age of majority at 18 years. such age of majority is important for the purpose of legal representation, entering into valid contract and other related legal issues. however, a male aged 18 years of age cannot legally be a party to a valid marriage according to the prohibition of child marriage act, 2006, that defines a child to be someone below the age of 21 years, if it is a male and 18 years, in case of female. in iran, for example, the age of majority or legal adulthood is 9 years for girls and 15 years for boys according to article 1210 of the civil code, 1928. while marriageable age is defined at 13 years for girls and 15 years for boys, there is no specific age limit for marriage in iran and marriage is possible at any age. this is in accordance with the article 1041 of the code which sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 101 states that ‘marriage before puberty by the permission of the guardian and on condition of taking into consideration the ward’s interest is proper’. ‘what constitutes a ‘child’ in one place and time and under one cultural, knowledge and legal regime can differ’ under another legal regime (mazurana, 2019). as opposed to the argument by the society of adolescent health and medicine (sahm, 2017, p. 758), this lack of consensus is not entirely due to the absence of a universally accepted definition of child or age of adulthood in the international instruments addressing child rights. it is seen that the definition of child is non-uniform within national legislations as well. while factors like religion (al-dawoody and murphy, 2019) and cultural traditions (boyden and de berry, 2004) do contribute to the determination of minimum marriageable age, they might not affect the legal age of majority, which might be higher or lower than the marriageable age. article 3 of the cuban family code authorize allows marriage of female at 14 years and male at 16 years as an exception, even though the minimum legal age of marriage is set at 18 years. in a report, the committee on the rights of the child expressed its concern regarding the exception in the cuban legislation, which puts young girls a risk of sexual exploitation at the hands of elder men (crc, 2020). such a lack of uniformity also prevails among regional instruments. for instance, the maputo protocol, through its article 6, clause (b), stipulates for the enactment of domestic legislation that guarantees minimum marriageable age for women to be 18 years. on the other hand, the south african development community’s protocol on gender and development, 2008, mentions that marriage below the age of 18 years shall not be allowed by states unless otherwise specified by law by taking into consideration the best interest and welfare of the child (sadc, 2008, art 8.2 (a)). the terms ‘best interest and welfare of the child’ have not been explained in the document allowing states to argue, even on flimsy grounds, that marriage at an age lower than 18 was justified because it was contextually in the best interest of the parties. it is noteworthy that what constitutes a child differs by culture and location and many scholars agree that a universal definition of a child is not possible currently. crc, under article 1, defines child as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. this definition presents two gaps that could let non-uniformity seep in. first, the definition is applicable only ‘for the purposes’ of the convention, which sets minimum standards for treatment of children. however, the minimum standards for the treatment of children are set clearly by the crc. so, even though crc restricts the scope of its definition to be utilized for the ‘purpose of the convention’, the wide ratification of the instrument signifies applicability of the definition of child under art.1 of the convention to be consented by the 195 states which have ratified the convention, with an exception of united states. state ratification, a voluntary act of the states signifies their consent. given the binding nature of the treaty, a safe conclusion would be that 196 state parties are bound by the definition in article 1 of the convention. secondly, the definition provides an exception to the minimum age by allowing majority to be attained earlier by a law applicable to the child, thus opening way for domestic law to override even when states have ratified the convention. however, even though such exception is in place, regional human rights instruments have been the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 102 inclining towards the definition utilized by the crc, rather than setting a lower age of majority attainment. in acrwc, the marriageable age is mentioned as 18, without any exceptions allowed, unlike the sadc protocol discussed earlier. such strict and clear wording is beneficial since they disallow interpretation and exceptions that could defeat the objective of the instrument itself. 4. non-legal causal factors for child marriage: ‘basic’ factors the driving factors behind the practice can be classified as ‘basic factors’ and ‘catalysts’. ‘basic’ factors lead to the practice, regardless of peace or conflict and ‘catalysts’ are situations that amplify the impact of basic factors. traditional norms, economic constraints and lack of education are ‘basic’ factors. armed conflict is a ‘catalyst’ since it amplifies the impact of these ‘basic’ factors. additionally, armed conflicts also act as a ‘basic’ factor for certain aggravated practices, such as mass abduction of bush wives, and servile marriage, which do not occur during times of peace. 4.1. traditional factor jamobo in her paper, the developmental effects of child marriage concisely notes traditional reasons for child marriage: early marriage in many tribes is looked at as a way of protecting the girl, thus the wife is ‘protected’, or placed firmly under male control; that she is submissive to her husband and works hard for her in-laws’ household; that the children she bears are thus legitimate; and that bonds of affection between couples do not undermine the family unit. parents may genuinely feel that their daughter will be better off and safer with a regular male guardian (jamobo, 2012, emphasis supplied). levine et al. note that traditional reasons for child marriage are rooted in the gendered roles that are assigned to women which include maintaining the household and rearing children (levine et al., 2008). traditional societies evaluate the social standing of a woman by her capacity to further such roles. therefore, young girls are seen as lucrative options for brides owing to their stamina to carry out household chores and bear children (el-arab and sagbakken, 2019). additionally, such societies also attach very high importance to the virginity of unmarried girls who are married off early to maintain family’s honour and reputation (jensen and thornton, 2003, p. 18; fahimi and ibrahim, 2013). south africa's ukuthwala, is a customary bride abduction practice prevalent among communities in the eastern cape and kwazulu natal (karimakwenda, 2021). kidnapping of girls for marriage among the latuka group in sudan, or the widely known customary practice of ‘bride-stealing’ has recently been turned down by a south sudan court, which annulled a child marriage where the bride was 16 years old. this decision has been welcomed by activists across sudan, where the rate of child marriage is high, despite regulations against the practice (toby, 2019). although bride kidnapping (bridenapping) is not always a form of a child marriage, some of it, specifically that involving children, usually leads to forced and child marriage. for instance, country reports on human sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 103 rights practices published by the u.s. bureau of democracy, human rights and labour, notes that many abducted young girls are often repeatedly subjected to rape and are then forced into marriage with their perpetrators to avoid the shame of having been raped (country report on south sudan, 2019). when it comes to crc, the seemingly universal acceptance of the convention due to its wide ratification is overshadowed by the reservations that states have opted for with regard to the application of the convention for upholding it’s religious, traditional, or cultural values. the committee on the rights of child observed that reservations regarding many articles of the convention are made by states to comply with islamic law and traditions (crc, 2000 § 29). bartels et al. present a study aimed at understanding the roles of factors which increase the rates of child marriage among syrian refugees in lebanon (bartels et al., 2018). they found the contribution of traditional factor to be higher than other factors (ibid). in one survey, syrian parents who were interviewed cited the concept of al sutrah (which is a desire to protect the family’s reputation and honour) as a reason for marrying off their daughters early to protect them from increased risk of sexual violence during conflicts (el-arab and sagbakken, 2019, p. 6). 4.2. economic constraint in addition to the above factors, parents also resort to child marriage as a strategy for economic survival. (jensen and thornton, 2003, p. 11). in its report entitled, early marriage: a harmful traditional practice, unicef cites ‘economic pressures’ as a major reason for child and early marriage (unicef, 2005, p. 5). this report analyses data from different countries and finds the prevalence of child marriage to be maximum in the ‘poorest 20 per cent of the population’ of the countries chosen for study (ibid). likewise, unicef innocenti research centre explains in its report that a young girl is considered an ‘economic burden’ in a family struck by poverty (unicef innocenti, 2001, p. 6, emphasis supplied). parents shift the financial burden of sustenance to the groom by marrying off their daughters early. (ibid, pp. 2, 6). the report further notes, that sometimes, the family may even receive a ‘bride price’ for their daughters (ibid, p. 6). often young girls are priced higher which motivates the families to sell them and this, in turn, leads to the creation of a child bride selling industry, especially prevalent in tanzania (corno and voena, 2021). similar situation is reported in nigeria where the cultural practice of bride price is an important factor inducing sale of young girls in marriage by poor families (ibid). economic constraint as a causal factor also explains the increase in rates of child marriage during the covid-19 pandemic (unicef, mar. 2021). in the current pandemic situation, unicef estimated a notable rise in the practice, with around 10 million girls being at risk of being married early, due to poverty (ibid). describing the ‘shadow pandemic’ as a driving factor behind early marriages across the world, sara thompson notes financial desperation, loss of jobs, and closing of schools during lockdowns as major reasons for parents marrying off their adolescent daughters (thompson, 2020). reports from ethiopia, after two months of schools having been closed, note that over 500 child marriages had been stopped by local ngos (wuilbercq, 2020). more than 200 such the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 104 marriages were stopped in bangladesh, by manusher jonno foundation, a local human rights organization (tithila, 2020). notably, both ethiopia and bangladesh are listed by unicef as countries with very high rates of child marriages and both nations stipulate 18 years as the minimum marriageable age. individual violators of domestic legislation prohibiting child marriages are driven by economic and traditional factors that are often more pressing than the legal mandates. 4.3. armed conflict mourtada et al. note that conflicts even add ‘new factors’ that encourage parents to resort to the practice of child marriage (mourtada et al., 2017). this section discusses armed conflict as a factor for increase in aggravated forms of child marriage. parents often consider child marriage as a ‘protective strategy’ to save their girls from being recruited as child soldiers (park, 2006; mckay and mazurana, 2004). moreover, displacement and migration, which result from continued conflict (lischer, 2007) lead to additional vulnerabilities such as trafficking and abduction of girls (human rights watch, 2016) for their involvement in harmful practices e.g., forced prostitution, sexual slavery, and temporary marriages (unhrc, 2019 § 6). families, therefore, marry their girls at an early age to protect them against these exploitations. an aggravated form of exploitation in areas under armed conflict is the forced marriages of girls or ‘jungle/bush’ wives. eboe-osuji remarks that the term bush/jungle/ rebel wife came into being during the sierra leone civil war to describe the plight of young women and adolescent girls during armed conflicts (eboe-osuji, 2012, p. 91). in the international criminal law jurisprudence, this practice has been noted to be a crime against humanity, with convictions being made by the special court of sierra leone (‘scsl’), the extraordinary chambers in the courts of cambodia (‘eccc’), and the international criminal court (‘icc’) (brima et al., 2007; nuon chea et al., 2010; charles taylor, 2012; ongwen, 2016). during the khmer rouge regime, adolescent cambodian girls were married off men they had never met. such impersonal marriages were conducted in mass ceremonies, held publicly (nuon chea et al., 2010 § 844). even though such marriages were temporary and couples parted ways a few days post consummation, parents consented to such marriage to avoid their daughters from being recruited as labours (jain, 2008, pp. 1024-25). the eccc found the nature of such forced marriages to be that of crime against humanity, categorizing it as ‘other inhumane acts’ (nuon chea et al., 2010 § 858). in uganda, the rebel group which began to attack the civilian population after losing support, engaged in the mass abduction of adolescent females, who were then forced to become the wives of such abductors (carlson and mazurana, 2008, p. 4). leaders higher in ranks had as many as 40 wives who were forcefully engaged in the armed rebellion apart from sexual slavery (ibid). in the ongwen case, the appeals chamber of the icc held forced marriages to constitute ‘other inhumane acts’ within the meaning of the rome statute (ongwen, 2016). in the sierra leone conflict, both the rebel forces and the government forces were found to be involved in the abduction of girls and women, who were forcefully made ‘bush’ wives of their captors (human rights watch, 2012). reportedly, the captives were exposed to cruelty and sexual violence, and slavery (strc, 2004 vol 2 § 511), with young girls being targeted more than women (strc, 2004 vol 3a § 127). in the charles sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 105 taylor case, the scsl appeals chamber found the accused guilty on counts of sexual slavery and other acts of sexual violence while refusing to consider forced marriage as a non-sexual act classified as ‘other inhumane acts’ (charles taylor, 2012 § 428) on the other hand, the appeals chamber in the afrc/brima case recognized forced marriages to fall under the category of ‘other inhumane acts’ under crimes against humanity (brima et al., 2008). this classification was justified by scholars who perceive forced marriage as a ‘multi-layered’act that includes both sexual and non-sexual abuse (nguyen, 2014, p. 37). eboe-osuji believes that forced marriages are always sexually predatory in nature, be it accompanied by rape of the intended wife or not (eboe-osuji, 2012, p. 91). theoretically, two explanations for this proposition are supplied by the author (ibid). first, the chattel theory which explains women being captured, raped and married by militants, just like other chattels, to establish or celebrate their victory (for instance, bush wives in sierra leone). second, is the prize theory of rape, correlative to which is the practice of inducing young men to join the militant groups to get the license to rape and marry non-combatants. for instance, reports from the vietnamese war mention usage of sexual violence and forced marriage as a means to only encourage more young men to join the combat so that they could establish multiple sexual contacts by means of raping women from the enemy’s side. sexual violence was also used as a method to obtain information from the enemy side where ives and other female relatives of the military personnel were raped or threatened to be raped if such information was not supplied (zipfel, 2013). apart from forced marriage, young girls are also increasingly susceptible to ‘servile marriage’, where the spouse is treated as a commodity that the owner can buy, sell, inherit etc. (unga, 2012). since young girls are not physically and mentally developed enough for strong resistance and defense, they end up being more susceptible to servility than elder women (ouattara et al. 1998). 5. non-legal causal factors for child marriage: armed conflict as ‘catalyst’ the risk of sexual violence, economic insecurity, disruption in social networks, and discontinuation of education ─ all of it increase during armed conflict thus creating a need for resorting to ‘negative coping mechanisms’ (roupetz et al., 2020; bartles et al., 2018). child marriage is one such mechanism. in addition to the above, the extent of the practice is concerning. for instance, the situation of armed conflict in syria has led to an increase in the rates of child marriage not just in syria but the syrian refugees that move to nearby countries of lebanon and jordan are also at an increased risk. jordan allows authorization for the marriage of children as young as 15 years of age and this places syrian refugee girls in jordan at an increased risk of child marriage. national law in jordan which allows marriage of girls below the age of 18 years is used as means to exploit syrian refugee girls by marrying them to much older arab men (rubin, 2013). secondly, in times of armed conflict, access to education is further restricted. in 2017, unicef released a report focused on the importance of education for children displaced from their homes due to conflicts and disasters. the report notes that ‘some 27 million children are out of school in conflict zones’ (unicef, 2017). lemmon notes that girls are forced to discontinue their studies and drop out of school because of their the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 106 increased vulnerability to exposure to sexual violence (lemmon, 2014). often, schools are destroyed as well and if not, the number of staff is reduced to a minimum or nil (dimitry, 2011). even if the schools are intact, girls fear attending classes because of the risk of being sexually exploited on their way to and from school (pereznieto, 2017) ─ all of which lead to their parents marrying them off early. thirdly, armed conflict results in acute economic backwardness of the zones affected by the crisis. the world bank notes that for every ‘three years that a country is affected by major violence, poverty reduction lags behind 2.7 percentage points’ (world bank, 2011, p. 5). scholars like moss note the emergence of an ‘organized transnational trade’ of refugee girls who escape a conflict (moss, 2015). for instance, young female syrian refugees are often lured for aid and shelter and handed over to bride traders (damon, 2013). often these girls are also sold to these traders by their own parents who are unable to sustain them (ibid). these girls are sold to men, especially to arab countries where, as ross notes, demand for syrian child brides increased after saudi clerics declared that marrying syrian girls is an act of islamic charity (rubin, 2013). results of a mixed methods study on child marriage in yemen also showed that conflict resultant displacement has an ‘exacerbating effect’ on economic security of displaced persons and refugees. such affected economic security was found to be an important factor in decision-making for contracting child marriage (hunersen et al., 2021, p. 4566). finally, unlike times of peace where families practiced child marriage as a tradition, increased vulnerability during armed conflicts leave parents with no choice than to marry off their daughters at an early age. the un inter-agency report found that many participants in the chosen focus group had known the practice of child marriage as a ‘rural tradition’ before the conflict started and that they had a choice to resort or not to resort to the practice (un women, 2013, p. 30). they also added that they did not have the latter option after the conflict affected them (ibid). concerningly, in cases where young civilian girls are sexually assaulted by men from armed rebel groups, they are even married off to their perpetrators to maintain the honour of the family (jamobo, 2012, p. 36; lee-rife et al., 2012). 6. recommendations the human rights council, in 2021, adopted a resolution to point out the insufficient pace of progress being made in the reduction of rates of child marriage and the impact of the covid-19 pandemic in further reducing the pace (unhrc, 2021, p.2). it called states for closer cooperation in order to achieve the goal of eliminating child marriage by 2030 (ibid). it notes that criminalization alone would be insufficient as a remedy and should be accompanied by support programs for gender equality (ibid, p.4). it also urges states to harmonize their national legislation to uniformly curb the practice of child marriage (ibid, p.7). this would also lead to a more inclusive international framework which would have more chances of being welcomed by the international community at large. however, his presents a need for adequate deliberation over the issue so that states do not continue the practice of child marriage even after the adoption of a standard universal minimum age. scholars like skivenes rightly note that a state’s ethical and cultural considerations sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 107 lead to different considerations of childhood (skivenes and sordsal, 2018). states might still adopt the reservation route to accommodate cultural grounds for exemption. it is important to realize the goal of eliminating such a practice because of its harmful nature. it is a settled principle that the cultural relativist approach of reservation should not be used by states to allow practices that violate the human rights of its subjects. these points need to be discussed, deliberated, and agreed upon by the international community. therefore, relying on the route of universalization of international frameworks would be an overenthusiastic method. additionally, the existing literature is divided over the universalization of children’s rights. in this regard, the debate between scholars who support a universal application of children’s rights and scholars who oppose the idea is worth discussing. as child marriage violates the rights of a child, it becomes important to discuss the theoretical feasibility of the realization of such a universal model of children’s rights. in her article entitled, ‘can there be any universal children’s rights?’, kristina bentley presents a case against the universal model of children’s rights (bentley, 2005). she argues that the rights in crc are based on the western aspect of childhood and ignore culturally relative rights (ibid, p. 117). bentley argues that the crc, just like other international human rights instruments are eurocentric and do not address the non-western problems. however, this argument is problematic since the crc was not adopted solely by the western states. it was adopted by the un general assembly with the cooperation of non-western countries, including africa, the middle east, south and central america, the caribbean, and asia and pacific. more interestingly, the only country that has not ratified the crc is the united states, which is a western state. additionally, non-western states in the africas have not only ratified the convention but also incorporated the principles into their regional systems and national legislations, as discussed previously. in fact, the acrwc is majorly based on the crc. when it comes to the rights of children, the argument of western imposition is used by groups in africa, asia, the middle east, and the americas to justify the continuation of harmful practices such as female genital mutilation, child marriage, servitude of girls at fetish shrines or ghana’s trokosi tradition (avalos et al., 2015, p. 639). therefore, achieving a universal minimum marriageable age would be the most appropriate step to curb child marriages, however, it is extremely difficult to achieve and implement. therefore, steps should be taken to ensure the reduction in impact of non-legal factors that cause continuation of the practice. 6.1. accurate data collection in order to bring reduction in the impact of a persisting social issue, it is important to first know the accurate intensity of the problem. a very important reason for ineffectiveness of legal frameworks is the lack of accurate data on number of child marriages. even though innovative approaches are being employed to collect data, there still remain gaps in the surveys. very recently, sensemaker® project used a mixed methods approach to extract meaning from stories that were collected from syrian girls in lebanon (bakhache et al., 2017, p. 8). despite its innovative approach, it was noted to have some errors because the programme translated the stories from arabic to english and some words were misinterpreted. therefore, it is submitted that the current surveys the persisting menace of child marriage: an account of non-legal factors contributing to ineffectiveness of legal frameworks the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 108 and data do not reflect the actual state of affairs in syria and neighbouring countries owing to the shortcomings of the sample collecting methods and other practical issues such as non-registration of marriages which do not help in gaining the actual number of cases of child marriages in the region. an important reformative step to get the correct statistical representation of child brides is registration of birth and marriage. this will also ensure that the universally acclaimed right of a child to have his birth registered and have a nationality (crc, art 7.1), is implemented in all states. non-registration of birth makes it difficult to prove that participants were minors during the celebration of marriage. moreover, a related issue is that of the non-registration of marriage. often legal responses against these practices remain inadequate for the lack of proper regulation and registration of such marriages. for instance, some yemeni societies do not abide by the national laws for marriage and instead adhere to the customary system of marriage where the ceremony is celebrated in presence of tribal sheiks or religious authorities (rodgers et al., 2008, pp. 5-6). such marriages often involve children below the marriageable age mentioned in the national law. since these marriages are not registered as per the legal system, they go unrecorded. this poses a concern of the actual number of child marriages in such societies being higher than what is reported through national data records. additionally, unregistered marriages leave the girls and their children deprived of any rights of inheritance from the property of the groom, who could easily claim, in absence of official records, that such marriage never happened. registration of marriage would help avoid such issues. registration of marriage shall also reduce the practice of temporary marriage where girls are married to men for short periods of time, sometimes only for a couple of hours, and are divorced with no rights of inheritance in their husband’s property and no record of marriage to prove the legitimacy of the offspring born out of such marriage. 6.2. creating work and education opportunities an important push factor is poverty and reduced working opportunities available to girls, both in their native country and in the host countries where they seek refuge (if they escape an armed conflict). notably, refugees escaping armed conflict are left upon the generosity of their hosts, who sometimes offer a price to the families to sell their girls. these girls are later married off to men from the host as well as other countries. this can be combatted if the host government pays adequate attention to the education of refugee girls and also allow them to work legally in markets that do not require educational qualifications. this would increase the financial security of such girls, which would in turn discourage parents from marrying them early or selling them for marriage. moreover, early marriage has the potential to contravene the provisions of international instruments which provide for right to education as a human right (udhr art 26; icescr art. 13). unicef in its recent report entitled ending child marriage: progress and prospects, through a specific case study of states in africa, notes that child brides tend to have lower levels of education (unicef, 2014). discontinued education makes child brides more vulnerable to discrimination at the hands of their spouse and other family members (gaffney-rhys, 2011, p. 363). in a marital union where the age difference between the spouses is significant, with the groom being older than the bride, discrimination is inherent. gaffney-rhys aptly notes that such unions have an ‘imbalance’ sanya darakshan kishwar the age of human rights journal, 19 (december 2022) pp. 93-119 issn: 2340-9592 doi: 10.17561/tahrj.v19.7228 109 of power created between the spouses because of the interplay of many factors such as difference of age and disparity in terms of education (gaffney-rhys, 2011, p. 362). therefore, ensuring compulsory primary education would reduce such power imbalance and create more job opportunities for women. a financially independent mother would not opt for marrying her children at an early age to avoid economic constraints and this would at least help break the chain of the practice. inarguably, these recommendations are dependent heavily on the implementation by countries. lastly, collection of data for comparative studies between different countries could play an important role in assessing the need for revision of national legislations. comparative studies would allow noting the difference in rates of child marriage in countries with different national legislations and a comprehensive study of the same would finally help formulate an international framework influenced by the good from diverse national legislations. 7. conclusion this research acknowledges the practice of child marriage as a human rights issue and the ineffectiveness of existing international, regional and national frameworks in reducing the same. therefore, this paper reviewed non-legal factors which cause child marriage in order to understand why even countries with national legislations explicitly banning the practice still have high rates of child marriage. upon reviewing the existing literature, including debates regarding the universal application of children’s rights, the universalization model was found to be most utopian and difficult to adopt. therefore, recommendations were discussed to mitigate the impact of non-legal causal factors. declaration of conflict of interests: the author declares that there is no conflict of interest. references primary sources international treaty law convention on consent to marriage, minimum age for marriage and registration of marriages, [1962] ga res. 1763 a (xvii) (nov. 7, 1962) convention on the elimination of all forms of discrimination against women [1979] 1249 unts 13 convention on the rights of the child [1989] 157 unts 3 international covenant on civil and political rights [1966] 999 unts 17 international covenant on economic, social and cultural rights [1966] 993 unts 3 universal declaration of human rights, [1948], ga res. 217 a (iii) un doc. a/810 the 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(2013). ‘let us have a little fun”: the relationship between gender, violence, and sexuality in armed conflict situations’, rccs annual review, vol. 5. https:// doi.org/10.4000/rccsar.469. received: june 15th 2022 accepted: october 1st 2022 https://doi.org/10.4000/rccsar.469 https://doi.org/10.4000/rccsar.469 the persisting menace of child marriage: an account of non-legal factors contributing to ineffec abstract 1. introduction 1.1. legal frameworks addressing child rights and child marriage 1.2. ineffectiveness of legal frameworks 2. child marriage as a human rights issue 3. minimum marriageable age 4. non-legal causal factors for child marriage: ‘basic’ factors 4.1. traditional factor 4.2. economic constraint 4.3. armed conflict 5. non-legal causal factors for child marriage: armed conflict 6. recommendations 6.1. accurate data collection 6.2. creating work and education opportunities 7. conclusion declaration of conflict of interests: the author declares that there is no conflict of interest. references primary sources secondary sources books and journal articles human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 1 human duties and rights in an intercultural perspective emilia bea*a abstract: this paper reflects on the possibility of opening new ways of revaluing the role of human responsibilities and duties by establishing a relationship with rights that goes further than a simple correspondence between correlative terms. approaching the interdependence between the language of rights and the language of duties from an intercultural perspective helps achieve an increasingly broader, but necessarily more complex, consensus. this analysis goes back to the universal declaration of human rights, which left duties in the background but showed the incipient presence of an intercultural purpose thanks to the work of unesco. the final part of the paper is devoted to those international declarations which delve deeper into this purpose and focus on duties. the aim of these initiatives, which originated with dialogue, is to strengthen those bonds of solidarity that involve assuming responsibilities when faced by the requirements of others that cannot be expressed in terms of enforceable powers. keywords: human rights, duties, responsibilities, interculturality, solidarity. contents: 1. two interdependent languages. 2. the intercultural perspective. 3. the context of the universal declaration of human rights: the timid but significant presence of duties. 4. declarations of duties. 4.1. precedents. 4.2. the universal declaration of human duties (karel vasak). 4.3. responsibilities and duties on the 50th anniversary of the udhr. 1. two interdependent languages this paper is part of an extensive investigation into the scope of human responsibilities and duties beyond the reductive and mechanical sense in which every creditor’s freedom corresponds to a debtor’s duty (bea, 2013). according to such schemes based on correlativity, which encompass the legal relationships outlined by w. n. hohfeld, rights are claims that a subject can assert against another obligated subject and the nonfulfilment of which may generate damages that can be claimed. “effective access to justice optimizes the potential for emancipation and transformation of law” (añón, 2018: 22). the question we ask is whether, bearing in mind the undeniable central role of subjective rights, can human rights and duties also meet real needs that are difficult to translate in terms of strict reciprocity? to this end, intercultural dialogue will be considered an * professor of philosophy of law, universitat de valència, spain (emilia.bea@uv.es). a this article has been written as part of research project “seguridad internacional y europea: de la prevención de conflictos armados a las estrategias para la construcción de una ciudadanía inclusiva y plural” (prometeu/2018/156) financed by the generalitat valenciana. human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 2 essential method for deepening these links of solidarity as a catalyst for the construction of a plural and inclusive citizenship. given the understandable suspicion that the discourse of duties, linked to organicist and authoritarian conceptions, arouses for historical reasons, and, therefore, sensitive to the lessons of the past, it is necessary to emphasise, as in previous phases of the study, that highlighting this discourse does not imply renouncing the emancipatory dimension and the moral progress of humanity that lay at the heart of the discourse of rights. placing the term “duties” before the term “rights” in the title of this paper does not imply giving priority to the former over the latter, and even less so conditioning the enjoyment of the latter on the fulfilment of the former. the intention is to draw attention to duties as a category which has been relegated in philosophical-legal analyses. recalling the eloquent title of norberto bobbio’s book (the age of rights; l’età dei diritti), far from considering closed the era opened by liberal thought under the primacy of rights, in contrast to the omnipresence of duties in pre-enlightenment thought, the aim is to achieve a reorientation so that solidarity – understood, as javier de lucas indicates, as a legal and political principle from which positive duties can be derived (de lucas, 1993: 27-31) – does not remain in the background. the problem is not the very idea of human rights, but a version of this idea that is excessively individualistic and understands social relations in terms of private interests and the supremacy of individual will. the deplorable and flagrant shortcomings in the realisation of human rights that we are witnessing are largely the result of a social model dominated by the market and by a vertical individualstate relationship that lacks other community mediations or cooperative links. as javier ansuátegui states (2018: 3), it is necessary to differentiate between the affirmation of a crisis in the time of rights and that of the end of the time of rights. to speak of crisis does not imply certifying the end of this era but a moment of transformation, just as it would be necessary to distinguish between criticisms of the idea of rights and those directed at a specific discourse of rights. we are interested in those processes which for several decades have been problematising and enriching the relationship between rights and duties – and look towards the viability of a comparative grammar or permeability between both languages. these processes, which unfold their potential alongside other processes developed in the evolution of human rights, can be interpreted in terms of a deepening of principles that cannot be renounced: such as the universality of human dignity; indivisibility; interdependence between the rights of different generations; and progressiveness (especially of social rights). it is therefore a matter of rehabilitating the language of duties with a liberating intention, that is, a reorientation towards a fairer social order which does not imply renouncing the guarantees and social conquests achieved thanks to the struggle for rights, nor making the enjoyment of rights conditional on community affiliation, nor renouncing legitimate aspirations because they materialise in other forms of expression. gustavo zagrebelsky affirmed in the early 1990s that “the imperialism of the language of rights has concealed what is irreducible in the demands of justice” and that “justice cannot be claimed and thought of as being built on rights while rejecting duties” (2007: 94-95). more recently, his sharp denunciation of present injustices – scandalous economic inequality, extreme labour exploitation, border protection, and environmental violence – emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 3 led him to express his fears that rights may be used “not as protection against injustice, but as a legitimisation of injustice” (zagrebelsky, 2017: 6). although there is no doubt about the devastating consequences of the ideological use of duties in totalitarian regimes, we must also be aware that the ideological use of rights, without being so lethal, can anaesthetise our capacity to resist evil and place us on the edge of an abyss. as josé a. pérez tapias warns: “if human rights are at the core of what is now considered humanism – the ‘humanism of human dignity’ – their slide into ideology is a part of barbarism, at least that ‘light barbarism’ of ethical apathy and moral indifference towards others which already leaves us defenceless in the face of the harsh actions that end in the denial of the other and their rights” (2006: 162). the aim, therefore, is to articulate the culture of duties and the culture of rights: an articulation that is only possible if, in mutual interaction, both are relieved of their ideological weight and recharged with utopian density. to this end, instead of a suffocating “we” or an isolated “i”, we must choose an intersubjective prism, in which the “other” is a limit to our will and desires, and a condition of access to our own humanity through the recognition of our common humanity. the interest in inaugurating a new time of duties, as the reverse side of the time of rights, is an objective that norberto bobbio approached in the final stage of his intellectual journey. he went so far as to affirm, in conversation with maurizio viroli, that, if he still had a few years left to live: “he would be tempted to write l’età dei doveri”, because “if the declaration of human rights is not to be reduced, as has so often been asserted, to a list of pious wishes, there must be an equivalent declaration of the duties and responsibilities of those who assert those rights” (2002: 42). a reflection which, as he comments, arises from the invitation of unesco to participate in the preparation of the declaration of human responsibilities and duties (1998) in commemoration of the 50th anniversary of the universal declaration of human rights. this initiative is part of a series of international documents, projects, and declarations which, since the end of the 1980s, have alerted governments and public opinion to the need to strengthen the commitment to respect human dignity and redefine the social bond through new scenarios linked by a broad network of horizontal relations that lay beyond the framework of the state. 2. the intercultural perspective the goal of international initiatives promoting duties is to reinforce the unquestionable symbolic value of the universal declaration of human rights by creating a broader and deeper universal consensus. the interest in strengthening the long tradition of human rights implies admitting that these rights are not forever fossilised in the enlightenment thinking that gave birth to them, nor in the historical conditions of their birth. we can say that they are a concept that goes beyond any conception of rights, hence their universal vocation and capacity to be transformed and enriched – although they are not an infinitely malleable concept. understood as normative demands of human dignity, human rights can be assumed and reinterpreted in many ways, as there are always critical elements in the face of any attempt at appropriation by a given culture. human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 4 overcoming abstract universalism with new consensuses requires adopting an intercultural perspective, since an authentic universality requires an exchange of cultures in a true pluralism. from this perspective, human rights, rather than being considered a priori universal, are conceived as universalizable (cruz, 2013: 90). this, in addition to other possible achievements, helps overcome one of the main stumbling blocks for human rights: the lack of harmony and a questioning by those cultures who see such rights as foreign to their practices or even an imposition of cultural domination. the intercultural method makes it possible to prevent nations and cultures in which the language of duties prevails from thinking that human rights are a typically western issue with which they cannot identify. the advances towards the consideration of cultural diversity as a “common heritage of humanity” thanks to international instruments such as the vienna declaration and programme of action (1993), the unesco universal declaration on cultural diversity (2001), and the convention for the protection and promotion of the diversity of cultural expressions (2005), have emerged from forums in which asian, african, and middle eastern nations have shown their reticence regarding the western character of the udhr and strongly demand a central role for collective rights. in recent years, demands for the recognition of the rights of indigenous peoples have led to an even more radical critique. of the various parameters and arguments that could be used in an intercultural approach to the problem of human rights and duties (f. m. wimmer, r. a. mall, tzvetan todorov, l. villoro…), the approach we take in this paper is mainly based on raimon panikkar’s diatopical hermeneutics, and which inspire various theoretical positions on the subject. the starting point of these intercultural theories is the awareness that topoi, places of different cultures, cannot be understood with just the instruments of understanding taken from a single tradition or culture. according to panikkar: “the belief in the universality of one’s own cultural contents is the essence of monoculturalism and leads to colonialism”; the key to interculturality lies in being “halfway between the absolutisation of one culture and an absolute lack of communication between them” (2006: 130). diatopical hermeneutics bring different human horizons into contact for a true “dialogical dialogue” (panikkar, 1984) in the joint search for what is common. writes panikkar: “all cultures are the result of a continuous mutual fertilisation. cultures, like reality, are not static, but are in a process of continuous transformation. dialogue between cultures, as well as the philosophical work of being aware of one’s own myth, of questioning and transforming it, and finding equivalences between different cultural discourses, constitutes the process by which each person and each culture cooperate in the destiny of humanity and the universe, which, to a large extent, is in our hands. this is human dignity and human responsibility” (2006: 130). for diatopical hermeneutics the hindu notion of dharma is a particularly valuable finding in a cross-cultural search for a sense of justice that enriches human rights (vachon, 1990: 171). the basis of dharma is a cosmological vision in which the cosmos is understood as a totality that encompasses all beings. what is most genuine in hinduism is the idea that everything is related to everything else and that there is no essential difference between beings, not even between the divine, the human, and the rest of nature. self-denial, detachment, and renunciation are needed to attain wholeness and merge into oneness. emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 5 every action in accordance with dharma is a contribution to cosmic harmony, while the disruption of the given order or the nature of things produces negative energies, according to the law of karma, which is the fruit of what is sown. raimon panikkar challenges us to think about justice and human rights in a new way: “a world in which the notion of dharma is central and almost omnipresent is not concerned with finding the ‘right’ of one person against another, or of the individual against society, but rather with estimating the dharmic (right, true, consistent) or adharmic character of a thing or an action within the whole anthropocosmic complex of reality” (1984: 39). the sociologist boaventura de sousa santos stands out among those authors who approach the treatment of human rights from panikkar’s diatopical hermeneutics. both agree that cultures are universes of meaning that are unintelligible from schemes of thought that are alien to the thinker, but however can be understood through the reciprocal exchange of experiences. diatopical hermeneutics consists in creating a self-reflective awareness of the “incompleteness” of one’s own culture and this awareness is the main condition for being able to participate in dialogue (santos, 2002: 79). applied to the field of human rights, it implies affirming that all cultures have different versions of human dignity, though not always in connection with human rights, and that all these conceptions are incomplete and problematic. diatopical hermeneutics transforms the conceptualisation and practice of human rights from a globalised localism – a local entity that extends its reach over the globe and from there designates a rival entity as local – to a cosmopolitan project linked to the “common heritage of humanity”. as santos explains, this transformation, which is the central task of the emancipatory politics of our time, is only possible if we avoid both abstract universalism through intercultural dialogue, and relativism through intercultural criteria that enable us to distinguish progressive from reactionary policies as has been highlighted by “counter-hegemonic” human rights discourses and practices (santos, 2002: 68). the aim is to avoid the abstract universalism that has accompanied rights and which, being based on a paradigm of self-sufficiency, cannot respond to the demands of vulnerable subjects who depend on the care of others – such as the cries of a planet on the brink of collapse or of millions of migrants wandering the world in search of a new home. it is in this scenario that we can find fornet-betancourt’s proposal for an intercultural dialogue based on a post-eurocentric epistemology that integrates a knowledge of indigenous peoples and community practices as an antidote to any type of exclusion (fornet-betancourt, 2004). following raimon panikkar, boaventura de sousa santos tests the scope of the intercultural method by putting the topos of human rights in dialogue with the topoi of other cultures to assess the extent to which they are mutually fruitful and highlight what constitutes an inalienable heritage. the main conclusion of this comparative process is the following: “as revealed by diatopical hermeneutics, the fundamental weakness of western culture is that it creates too strict a dichotomy between the individual and society, which makes it vulnerable to possessive individualism, narcissism, alienation and anomie. in contrast, the fundamental weakness of hindu and islamic cultures is that neither manages to recognise that human suffering has an irreducible individual dimension that can only be adequately dealt with in a non-hierarchically organised society”. thus, “viewed from the topos of human rights, dharma is incomplete because of human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 6 its strong non-dialectical bias in favour of the harmony of the social and religious status quo, thereby concealing injustices and neglecting the value of conflict” (santos, 2002: 72). at the same time, however, we must look to the east to “ingrain in western culture the idea of collective rights, rights of nature, and future generations; and of collective duties and responsibilities through collective entities (such as the community, the world, or even the cosmos)” (santos, 2002: 76). clearly, the difficulty in any intercultural encounter is that some elements are easy to share, while others reveal with great intensity the distinctive character of each worldview. fidel tubino (2009: 157) stresses that even a restriction of rights to the human realm is not a universally shared truth. in the hindu conception, closely linked to the idea of dharma, dignity is not exclusive to humans, which contrasts radically with one of the assumptions of the modern conception of citizenship: that nature has a use value and natural beings have no rights. as we know, there is currently a fierce debate in the west as to whether animals have rights. in a radical way, judith butler, inspired by the thought of emmanuel levinas, stresses that while human rights have been based on categories such as reason, autonomy, and will, that are considered universal, although not everyone possesses them, the crucial point for thinking about our interpersonal relations and our life in common is the irreducible difference between human beings and the non-human that cries out for protection. in his view, in contrast to liberal thinking, which is based on the self-sufficient subject, we must think of human rights in terms of interdependence being a constitutive aspect of identity, so that our concern is not to promote our own lives, but to guarantee the vital conditions for all creatures whose desire to live must be equally satisfied (butler, 2012). the appeal to interculturality – or perhaps transculturality – is anticipated by contemporary philosophers and writers such as karl jaspers and c. s. lewis. jaspers’ now classic characterisation of the axial age is a valuable reflection on the profound reciprocal understanding that can exist between different religious traditions and spiritual quests, which at that moment achieved universality and manifested themselves as a common human experience or a common pool of humanity (jaspers, 2011). a parallel can be drawn with lewis who, in the abolition of man, invites us on a transcultural adventure in search of this horizon of shared meaning, which he terms tao, the content of which implies a series of duties within the framework of the law of general and special beneficence, good faith, truthfulness, piety, and honesty. what lewis calls “for convenience the tao, and which others may call natural law or traditional morality, or the first principles of practical reason, or the first platitudes” is presented as the source of all value judgements (lewis, 2014: 21). in short, it is about rethinking ancient wisdom, that of those sages present in all cultures and for whom the “cardinal problem had been how to conform the soul to reality, and the solution had been knowledge, selfdiscipline, and virtue” (2014: 38). p. kirpal’s proposal was to complement the philosophy underlying international human rights documents with the inspiration of traditional wisdom and thus make possible “a new humanism: free, wise, compassionate, and capable of love” (1985: 323). as august monzon stresses: “this obviously involves a strong emphasis on values, duties emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 7 and education”. it is a matter of reconciling “a democracy sensitive to the (irreducible) diversity of traditions, ethical values, and economic solidarity, while simultaneously advancing these traditions in mutual dialogue and respect for the modern heritage” (1992: 126). thus, the need to reformulate our texts on human rights with those of other peoples or cultures implies doing so with the various religious, philosophical, and political traditions that have arisen or developed in the west beyond liberalism. from this perspective, a universal consensus based on true dialogue requires accepting “as a starting point that the idea that human rights (of humanitas or human dignity) is part of the common ethical heritage of humanity and, at the same time, that every culture and worldview contains valuable elements whose loss would affect the entire human family” (1992: 118). for rights, which are unquestionable when speaking of justice, to be accepted by all, we cannot use an imperialist language that destroys any other discourse on the demands of a just order, but rather rights must be presented in a language that does not have the last word and that needs to be enriched through fruitful contact with other worldviews both in a diachronic sense (looking at our own past) and in a diatopic sense (looking at other cultural universes). it must be remembered that for cultures to be able to question each other, they must be understood for what they are: realities in continuous dynamism and never selfsufficient (de lucas 1994: 67-69). it is necessary to encourage within them those versions or currents that are more open and inclusive, meaning those that are situated in the widest circle of reciprocity and recognition of the other. only in this way can there be authentic internal self-criticism. let us not forget that self-reflection is the other side of dialogue and the healthy way to overcome uprootedness. in other words, do not build from scratch, but neither uncritically accept what is given. in a recent article in the unesco courier, mireille delmas-marty argues that only through an interactive and evolutionary dynamic can relativism and the imperialism of values be avoided: “the rapprochement of cultures must be understood as a process, a movement that gives preference to the metaphor that presents human rights as the common language of humanity”. three processes with increasing effects lead to that common language: “intercultural exchange (dialogue) to the search for equivalences (translation), and reciprocal transformation (creolisation)”. delmas-marty gives particular importance to creolisation and relies on a definition provided by edouard glissant in la cohée du lamentin: “creolisation is not a simple mechanism of inter-breeding. it is a mixture that produces something unexpected”. thus, according to the glissant: “to produce the unexpected is to find – beyond dialogue and translation, but thanks to them – a new truly common meaning” (delmas-marty, 2018). according to christoph eberhard, who also looks for functional equivalents of human rights in other cultures – locating the main reference in the buddhist vision of the spiritual kingdom of shambhala (2010) – intercultural dialogue enables us to “resolve the two main challenges to contemporary human rights theory and practice: to escape the impasse constituted by the alternative between universalism and relativism – by introducing a pluralistic approach to law and human rights – and overcome the gap between theories and practices – by introducing a pragmatic approach to law and human rights that does human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 8 not remain merely in the realm of ‘official western-style written law’ but recognises and builds on the actual legal practices of the ‘living rights’ of the world’s peoples” (2002: 256-257). dany rondeau also applies panikkar’s diatopical hermeneutics to the relationship between rights and duties, and clearly synthesises the conclusions that can be reached. from his point of view: “if the ideology of human rights is transformed and accompanied by an acute sense of responsibilities and duties, many of the reproaches levelled at the liberal conception of rights would become meaningless” and especially “its inability to reconcile individual desires with the needs of the individual and those of the community, meaning the desire for absolute individual freedom and the need for social justice”. therefore, “the emphasis on rights as well as responsibilities towards the other (the other of today and tomorrow) is intended to achieve the purpose of human rights: freedom and justice without which such freedom is only a privilege for some” (2008: 164). 3. the context of the universal declaration of human rights: the timid but significant presence of duties the aim of seeking the broadest possible consensus was already an objective of unesco in the preparatory work for the universal declaration of human rights, as can be deduced from the interest shown in discovering opinions on the philosophical foundations of rights from figures representing all cultural traditions, ideological positions, currents of thought, and sensitivities. the project to contribute to a better understanding between peoples of different cultures, supervised by the french philosopher jacques havet, materialised in the sending of a questionnaire to which some 60 relevant personalities responded. jacques maritain was one of the figures consulted and is author of a book entitled human rights: comments and interpretations: a symposium (1949) which publishes the most significant responses. he points out that the testimonies gathered in the book give rise to a certain hope that the day will come “when the world can agree on the enumeration of human rights, and the key values that determine the way in which these rights are exercised, and on the specific criteria necessary to ensure that they are respected”. in the meantime, a declaration of rights on which nations agree is already a great step forward and as maritain writes: “a pledge for the humiliated of the whole world; a harbinger of the transformations which the world needs; the first and necessary condition for the future establishment of a universal charter of civilised life” (carr, 1973: 31-32). in a unesco survey on the intellectual foundations of a modern bill of rights, the questions on duties were formulated as follows: “what are the relationships between rights and duties (a) for individuals, and (b) for groups? what are the relationships between individual freedoms and social and collective responsibilities?” (carr, 1973: 386). the answers can be classified in three trends: the first emphasises the responsible acceptance of our social commitments and participation in public life; the second focuses on the positive demands and duties posed by economic, social, and cultural rights; and the third focuses on the contribution of non-western societies. these three trends are of emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 9 great interest because they anticipate the three directions in which human rights have been evolving towards greater richness and complexity: the need to counteract the growing lack of solidarity and civic awareness; the expansion of demands that that could become rights; and the progressive incorporation of cultural diversity in the processes of defining rights. within the first group of responses, john lewis’s position stands out and is articulated around the idea that “society is not a social contract for property rights, but an organism through which men seek a common good to be shared... rights and duties are inseparable. we must recognise that, since the rights we claim are claimed by all, we can only achieve them by accepting a common task and common responsibilities” (carr, 1973: 88). sergius hessen also states forcefully that “the individualistic fiction of a ‘social contract’ must be replaced by the ‘solidaristic’ fiction of a ‘social debt’” (carr, 1973: 168169). salvador de madariaga recalls what “an often-forgotten commonplace that there is no absolute individual”, and that “man is a synthesis that can be described as individualin-society” (carr, 1973: 75). in teilhard de chardin’s words: “it is not by isolating himself but by suitably associating himself with all others that the individual can hope to achieve the fullness of his person” (carr, 1973: 160). along these lines, in maritain’s view, a declaration of rights should “be completed by a declaration of man’s obligations and responsibilities towards the communities of which he is a part: particularly towards family, civil society, and the international community” (carr, 1973: 118). according to e. h. carr: “no declaration of rights which does not also contain a declaration of correlative obligations can have a transcendental significance”; a correlation that “presents itself much more clearly when it comes to social and economic rights” (carr, 1973: 38). we find ourselves before the second tendency which, as we know, was very influential because of the weight of the socialist countries (among other reasons). however, although a large group of authors sought the recognition of this type of right based on the idea of material equality, other authors, such as kurt riezler, considered that any addition to the old civil liberties “whether of economic rights or of duties, means in practice a weakening of civil rights and of their influence on the human spirit” (carr, 1973: 235-236). the dominant idea in the responses was that, despite the many difficulties of compatibility between the two, civil and political rights must be complemented by social rights, which are also fundamental human rights, a consequence of the recognition that to live well and freely, man must have at least the indispensable means to live. duties correlative to social rights appear to be the most obvious positive duties and should always be explored and insisted upon. finally, the third trend, representative of other cultural horizons, was represented by gandhi’s famous letter to the instigator of the survey, the first director-general of unesco, julian huxley, whose message is summed up in his opening statement: “from my ignorant but wise mother i learnt that the rights that can be deserved and preserved come from duty well done” (1973: 33). in the same vein, s. v. puntambekar reflects on the hindu concept of human rights, which enshrines human aspiration “to the material conditions of a happy life and the spiritual virtues of a good life” (carr, 1973: 296) and this is along the lines of what has already been said about the notion of dharma. chungshu lo reminds us that “the fundamental ethical concept of chinese social and political human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 10 relations is the fulfilment of duty to one’s fellow man, not the claiming of rights. the idea of mutual obligations is regarded as the fundamental teaching of confucianism” (carr, 1973: 281). in the works of confucius, we find a guide to behaviour to be followed by conviction and not by the imposition of external rules of conduct, and in the confucianist schools, confronted from the 3rd century onwards by the legalist schools, law is subsidiary to ethics. this is because force regulated by law may prevent some excesses – but cannot guarantee the network of relationships that give meaning to human life. wisdom consists in devoting oneself to one’s duties towards human beings and nature. chung-shu lo also referred to three basic demands that are “valid for everyone in the world”: the right to life (at the biological and economic level); the right to self-expression (at the social and political level); and the right to enjoyment (at the aesthetic and spiritual level) (carr, 1973: 284). from this perspective, a holistic view of rights and duties need not renounce any of these dimensions because a fair social order is based on a healthy balance between them. chung-shu lo was the only non-western member of the committee of experts that studied the answers to the questionnaire and sent a final report with conclusions to the commission on human rights in august 1947. given the commission’s limited involvement in the project, it was decided by a majority of eight votes to four, with one abstention, not to incorporate the report into the udhr drafting process. despite this decision and the ensuing criticism, the unesco research is of undoubted value, as mary ann glendon (2001) has stressed, because it began to show that the history of “the philosophical discussion of human rights and dignity” extends “beyond the narrow confines of western tradition” (carr, 1973: 392). it should be noted that the declaration was seen as both a point of arrival and departure by its architects or “founding fathers” – and let us not forget that among them were dr chang and professor malik, both of european background but respectively natives of china and lebanon. the ethos of duty was not absent from the context in which the declaration was made. thanks to the testimony of one of its main architects, rené cassin, the french representative of jewish origin, we know that the issue attracted the attention of the un experts when drafting the text, although even in the preparatory phase there was no serious debate on the subject and it was relegated to the background. the blunt words of the chairperson of the commission on human rights, roosevelt, pronounced at one of the first working meetings, practically closed the discussion: “the task entrusted to us is to proclaim the rights and fundamental freedoms of the human being... and not to list his obligations” (cassin, 1968: 481). the historical moment was decisive as cassin confirms: “if the mention of the duties of the individual towards society was not admitted in this declaration, it was because the drafting of the new charter followed the horror. in the climate of indignation that animated the drafting commissions, the universal declaration of human rights was to demonstrate above all the sense of a solemn protest of the human conscience against the unlimited tyranny of the state” (macheret, 1989: 6). when the declaration was drafted, the only point of union between different, even opposing, systems and currents of thought was the frontal opposition to the excesses committed by fascist states (characterised by making the enjoyment of freedoms conditional on identification with the values represented by the state). the aim of the declaration was to proclaim universal and inalienable rights from whose enjoyment no emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 11 human being can be excluded, since they cannot depend on the characteristics of the subject nor on a subject’s behaviour. despite the initial interest, there is no single direct reference to duties and responsibilities in the preamble of the udhr, and only two references are found in the text: article 1 states that “all human beings... should behave towards one another in a spirit of brotherhood” and article 29 proclaims that “everyone has duties towards the community”. the deliberate nature of this choice is reinforced by comparing the udhr with the american declaration of the rights and duties of man, adopted only a few months earlier on 2 may 1948 in bogotá. it is enough to read a few paragraphs of its preamble to note certain differences in tone: “the fulfilment of duty by each individual is a prerequisite to the rights of all. rights and duties are interrelated in every social and political activity of man. while rights exalt individual liberty, duties express the dignity of that liberty. duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis”. articles 29 to 38 list the duties of the human being towards society in relation to parental and filial obligations, education, suffrage, obedience to the law, payment of taxes, and work. although this declaration does not properly reflect the pluricultural impulse which in recent years has been emphasised by indigenous cultures, and which has been reflected at a constitutional level in countries such as ecuador and bolivia, it reveals an anticipatory approach to duties which, however, was not reflected in the short term in the american convention on human rights (1969). the two cited articles are relevant despite the smaller presence of duties in the udhr compared to the american declaration. article 1 is a prescription of an essentially moral character, which appeals to universal brotherhood. in a previous wording, it was said that “all men are brothers”. in both versions there is a desire to avoid any kind of fratricidal logic and there is aspiration to establish solidarity between the men and women of the planet beyond mere individual interests and demands. in a declaration that was intended to be only about rights, the allusion to fraternity/solidarity timidly opens the way to duties and lays the seed from which third-generation rights, whose international recognition comes later, will take root. article 29 refers to duties in a more explicit but also very restrained manner. to the statement: “everybody has duties to the community” the article adds “as only within the community is it possible to fully develop the individual personality” – which according to j. a. carrillo salcedo (1999: 26) implies that rights as well as duties derive from human dignity. according to dany rondeau (2008: 144), the precept reflects the demands of a natural sociability appropriate to a philosophical anthropology in which different currents of thought can be found, such as republicanism and communitarianism. he went on to add that it is a “translation of taylor’s argument” about the duty to sustain a free society as a condition for our freedom (ost and van drooghenbroeck, 2004: 811, 816). erica-irene a. daes also stresses that “it is impossible to draft a declaration of rights without proclaiming the duties that derive from the concept of freedom and that make the establishment of a peaceful and democratic society possible” (1983). according to human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 12 vicente bellver, in the light of this article, “duties towards others are not a price we must pay to do what we really want, but the condition for a full realisation of our personality” (2019: 3). these ideas are reinforced by article 29.2 which establishes a certain balance between the due protection of human rights and the requirements of the common good, and by article 29.3 which says that we establish links and have duties to the state and international community. interpreted in this way, the udhr reflects, although in a basic and precarious way, the concerns of those responses to the unesco consultation that were in tune with a conception of freedom inseparable from responsibility and participation in social life. of the three types of responses to the consultation, those referring to duties as a correlation of social rights were the most influential in the text of the declaration, as these rights were embodied in articles 22 to 27 (accepting the principle of indivisibility with respect to civil and political rights). bobbio stresses that in article 22 “social rights refer to the individual in his dimension as a social person” to which “it should be added that society is understood as a group of individuals (one plus one plus one, according to the individualist conception of society) and as a group in which the components are interdependent” (2009: 540). since the incorporation of social rights, the expansion of the catalogue of rights has become a constant feature of international life. the emergence of new rights, especially those related to the environment and the interest of future generations, will be largely a projection of the sensitivities of other cultural horizons, as outlined in the third group of answers to the unesco questionnaire. therefore, although at the time its influence on the udhr was almost negligible, the presence of this intercultural aim should not be underestimated, and we see below how it illuminates a series of subsequent texts focused on human responsibilities and duties. 4. statements of duties it took 40 years for the international community to start thinking about the need to create international declarations, complementary to the udhr, in which duty and responsibility would occupy centre stage. these documents were initially private in the sense that they were the result of informal meetings between representatives of different cultures, countries, and mentalities – and were usually sponsored by influential personalities but without sufficient organisational support or relevance. the origin of these texts corresponded to an intercultural method based on the creation of shared spaces. “dialogical dialogue” or “creolisation” operates at an existential level since the aim is not to dialectically defeat the interlocutor, but to walk together and widen the horizon of understanding. the hope is that something unexpected and new will be created from such encounters. as diana de vallescar states: “interculturality is first and foremost an experiential knowledge rather than a theory” (2006: 134). moreover, since these are spontaneous experiences that are scarcely formalised in an official manner, there is a degree of neutralisation of a risk latent in intercultural dialogue, namely, the risk of asymmetrical power relations dominating within each culture or in the interrelation between cultures. emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 13 some of these documents claim to have a legal value, at least on the same level as declarations of rights, and therefore clearly recognise a series of duties, while others restrict their scope to a symbolic or pedagogical level and merely rethink the role of human responsibility and community values in social life. in either case, these texts inspire political action and legal practice through an ethical motivation that overcomes the individualism of those who are only concerned with claiming their own rights without attending to the needs of others. before going into these initiatives, it is necessary to refer to two international instruments of a regional nature that serve as precedents and which deserve to be addressed in greater detail. 4.1. precedents the first of these documents is the african charter on human and peoples’ rights (1981), which features a major conceptual innovation by establishing the duty to contribute to the promotion and realisation of african unity, thus reproducing the individual-community relationship inherent to this continent and exalting clearly societal and cultural values. the algiers charter universal declaration of the rights of peoples (1976) corresponds to the search for a new international order in which dependence gives way to the capacity for self-determination and solidarity –and so resisting a history marked by domination, colonialism, and exploitation. according to tunguru huaraka, the harmony between duties and rights, or between the interests of the group and those of the individual, forms the moral fibre of society: participation in the life of the community is a duty and an obligation that at the same time generates rights and duties for the individual (1990). the bantu notion of ubuntu holds special significance here because it shows what binds us to others and makes us interdependent beings. its capacity to illuminate a vision of intersubjectivity that is open to the future and the past – remembering victims can only be a duty – was demonstrated in the excellent work for restorative transitional justice achieved by south africa’s truth and reconciliation commission (bea, 2020). the second of the regional documents is the declaration of the duties of asean peoples and governments (1983), a little-known text that is notable for its concordance with “the cultural realities of asia and its religious aspirations”. its signatories (indonesia, malaysia, the philippines, and thailand) are moved by “the misery, hunger, pain, suffering and despair of millions of asians” and outraged that there are still asian states that have not ratified international human rights covenants. the declaration proclaims first and foremost the duties of the state regarding peace, development, social justice, cultural communities and condemns torture and other degrading practices. it also establishes human duties such as “the duty of all individuals and all peoples to exercise their rights and freedoms in a spirit of human solidarity” (article 1.3) and “the duty of all persons to abstain from useless or superfluous consumption and ostentatious wealth and power” (article 3.5). there is a renewed air in this asian declaration of duties that is reminiscent of those thinkers who at the time of the drafting of the universal declaration of human rights tried to imbue the text with the spirit of eastern human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 14 traditions. this eastern spirit that will be further revealed in the bangkok declaration on human rights (1993) and in the movement for the vindication of cultural diversity developed in the 1990s and in which duties play an important role alongside other community references. 4.2. the universal declaration of human duties (karel vasak) based on these precedents, the first of the international initiatives proposed as parallel and complementary to the udhr is the universal declaration of human duties (1987), as promoted by karel vasak. the project remains a private project that has “never been adopted and is often criticised”. according to its introduction, the declaration is “is a synthesis of the duties contained in constitutions and international instruments that identify, as far as possible, each human duty with the same precision with which a right is identified” (vasak, 1989: 9-16). the intention to give duties the same legal significance as rights and a certain autonomy or priority has been widely criticised, although its supporters insist on the interdependence between rights and duties – and that a duty cannot be a pretext for suspending or relativising a right. other critics consider it a “useless” proposal because the duties included are either already recognised or simple appeals to individual conscience (rondeau, 2008: 159). this is one of the characteristic features of general positive duties, their indeterminacy, which makes their legal translation difficult, and the result is sometimes so extreme that it is no more than a recommendation or a reformulation of abstract principles (garcía inda, 2021: 111). the vasak declaration proclaims in article 1: “every individual has duties towards himself, towards his family and peers, towards his natural environment, and towards the national and international community as it is only in these that he can freely and fully develop his personality”. the articles then specify duties related to education (article 3), work (article 4), assistance to persons in physical and moral danger (article 10), animal and plant species (article 12), the cultural identity of every human community (article 13), and peace (article 20). the proposal refers to the still cautious attempts to make way for the theory of drittwirkung. this theory advocates the effectiveness of vertical rights (in relations with political power) as well as horizontal rights between individuals (such as the erga omnes binding of the system of rights). this demand in german constitutional doctrine has gone together with the idea that fundamental rights embody an “objective value order” (objektive wertordnung) and have a “spillover effect” (ausstrahlungswirkung) on the entire legal system. vasak’s declaration warned of a growing phenomenon: the economic and social power of large corporations over governments, which means that private actors can cause rights violations that are similar in size and gravity to those of states (estévez araujo, 2013). the practical realisation of rights would be greatly diminished if it were the sole responsibility of states, and if a whole network of social groups and private entities, as well as international organisations, were not involved in defending them. for this reason, it is worth analysing the duties of transnational corporations and the instruments for obtaining a minimum of democratic control over their actions (madrid, 2013). emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 15 vasak points out that the interest in integrating duties is to account for the sensitivities and needs of a third generation of human rights, following the inspired, although debatable, division of rights into generations that he himself coined. formulated as rights of future generations (also known as solidarity or third-generation rights) these are demands that shape the legal order as the responsibilities and duties of public authorities and private individuals, and which have been constantly extended following the vasak declaration. over the years, there has been a succession of demands linked to the environment, animals, sustainable development, climate change, peace, cultural heritage, information and communication technologies, and biotechnology, which today, as at the end of the last century, have a clearly collective dimension that implies a great cooperative commitment. this requires the assumption of responsibilities on the part of both public authorities and society and involve essential values of tolerance, empathy, mercy, peace, and non-violence (towards human beings and the natural environment). these demands are derived from a conception of existence as an interdependence between all living beings which requires infinite mutual respect for the world that sustains them. these concepts have been put forward by various sectors of environmentalism extending from radical ecology (which entails a certain sacralisation of nature) to schumacher’s humanist ecology (inspired by buddhism) and to kelly’s “green politics”. the charter of human responsibilities of the alliance for a responsible, plural, and united world is in line with this vision – as is the earth charter (2000). the idea is that many of the rights that guarantee the continuity of a dignified life on the planet, and that even grant rights to non-human living beings, could perhaps be better described with a discourse of duties, since they imply inter-subjective and communal relations, as well as a type of temporality that is difficult to capture within common legal schemes. neither future nor past generations can properly have subjective rights since there is no holder of such rights who is able to demand them. the rights of those generations are our duties without reciprocity. in zagrebelsky’s words, there is a “rottura di contestualità” (2017, 124), which makes a legal relationship according to the classic correlative model impossible: “the constitutionalism of rights, without renouncing its central aspiration of being at the service of resistance to arbitrariness, must discover duties, not simply as reflections, but as counterparts of rights, because where the unity of time has been broken, duties take precedence over rights” (2013, 35). in this connection, he cites simone weil’s pioneering declaration of duties towards mankind (1943), which is centred on the needs of the body and soul and starts with rootedness (bea, 2010). 4.3 responsibilities and duties at the 50th anniversary of the udhr almost ten years after vasak’s proposal, and before the 50th anniversary of the universal declaration of human rights adopted by the united nations, the universal declaration of human responsibilities (1997) as proposed by the interaction council is the most faithful reflection of a dynamic intercultural call. its main promoter was the swiss theologian hans küng, who has done much to lead the way to a global ethic that human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 16 all religions and cultures can recognise and mutually reconcile. küng drafted “towards a global ethic: an initial declaration” for the parliament of the world’s religions (chicago, 1993), which was endorsed by “representatives of the most varied religions large and small” without prejudice to their undeniable differences. the declaration of the interaction council is the result of synergies between personalities of very different cultural sensibilities, ideological backgrounds, and geographical origins. in addition to küng’s impetus, the commitment of former german chancellor helmut schmidt was decisive, and he was joined by leaders from other countries. the spirit of dialogue was based on trust in a possible agreement on fundamental issues, rather than a division. however, it was probably excessively mediated by western elements (including believers and non-believers). the 1997 declaration is synthesised in article 4, which underlines that the golden rule of ethics is the source of responsibility: “all people, endowed with reason and conscience, must accept a responsibility to each and all, to families and communities, to races, nations, and religions in a spirit of solidarity: what you do not wish to be done to yourself, do not do to others”. the other major common principle underpinning the global ethic – that all people should be treated humanely – is reflected in article 1: “every person, regardless of gender, ethnic origin, social status, political opinion, language, age, nationality, or religion, has a responsibility to treat all people in a humane way”, and in article 2: “no person should lend support to any form of inhumane behaviour, but all people have a responsibility to strive for the dignity and self-esteem of all others”. these fundamental principles of humanity are the epitome of the inalienable and inviolable dignity of every person, respect for which, nurtured by such diverse religious and humanist traditions in east and west, is the goal of mutual cultural transformation through dialogue. the following articles reflect the four commitments to action based on shared moral tenets, which have their roots in the axial age characterised by jaspers and have thus proven their resilience and the reasons for their survival over the centuries. the ancient tenet “thou shalt not kill” is developed in articles 5 to 7 under the heading “non-violence and respect for life” (which includes the protection of animals and the natural environment). the commandment of “thou shalt not steal” is reflected in “justice and solidarity”, which is specified in the duties of articles 9 to 11 (behave honestly, promote sustainable development, help the most disadvantaged, and use wealth in the service of economic justice). the tenet “thou shalt not lie” is covered in the declaration (articles 12 to 15) with commitment to “truthfulness and tolerance” (speak and act truthfully, be honest, and respect the beliefs of others, which is even more necessary in the case of politicians, the media, and religious leaders). finally, the commandment “not to commit sexual abuse” is specified in a commitment to “mutual respect and partnership”, referred to in articles 16 to 18 in relations between men and women (to be projected onto children and accompanied by a rejection of sexual exploitation or dependence). each paragraph of the declaration deserves careful consideration and takes on its full meaning from the cross-cultural inspiration in which it was conceived. the document of conclusions and recommendations evokes gandhi’s contemporary preaching of the seven social sins, to which we must allude as a reflection of present evils: “politics without principles, wealth without work, pleasure without conscience, emilia bea the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 17 knowledge without character, commerce without morality, science without humanity, and worship without sacrifice”. months later, during the commemoration of the 50th anniversary of the udhr, the declaration of human responsibilities and duties was approved within the framework of the valencia third millennium-unesco project with the support of the office of the united nations high commissioner for human rights. according to richard goldstone – the south african constitutional court judge who chaired the expert committee – the main objective of the project was to “emphasise the relationship between rights, duties, and responsibilities and so promote the fulfilment of human rights” (2000: 21). as we see in the preamble: “the effective enjoyment and implementation of human rights and fundamental freedoms is inextricably linked to the assumption of the duties and responsibilities implicit in those rights”. the document was supported by bobbio and consists of 12 chapters and 42 articles. according to the then director of unesco, mayor zaragoza, the intergenerational relationship between rights and duties must be established because the rights of future generations are the duties of current generations. this conviction had inspired the declaration of the responsibilities of present generations toward past generations a year earlier. the valencia declaration denounces the inadequacies in civic awareness of public duties and virtues, among other reasons, because it is thought that what is not legally prohibited and sanctioned is easily allowed. it is therefore founded in the claim for an “intersubjective” conception of rights, which, in addition to assuming the indivisibility between rights of freedom and rights of equality, raises the question of the indivisibility between the rights and duties of human beings and calls for a general duty of solidarity (colard, 1989: 26). from this point of view, human dignity “constitutes the moral ‘source’ from which all fundamental rights derive their sustenance”, as j. habermas claims (2010: 6), and in line with f. ost and s. van drooghenbroeck (2004: 793), entails responsibilities and duties, which shape the legal order even if they do not become legal requirements that can be claimed according to the model of subjective law. what must be avoided, as ángeles solanes points out, is “a minimalism that separates human rights from their essential moral impulse, which is none other than the protection of the equal human dignity of each one” (2018: 20). tommaso greco, for his part, has shown his distrust of state coercion as the only means of guaranteeing the fulfilment of duties, trusting instead in those primary horizontal guarantees which are manifested in the spontaneous fulfilment of obligations between subjects who reciprocally recognise each other’s dignity as human beings (2010: 337-339; 2021: 62). in the same year in which the declaration of human responsibilities and duties was approved, and in reference to the commemoration of the 50th anniversary of the udhr, saramago pronounced the following words on receiving the nobel prize for literature: “a universal declaration of human rights was proposed and with that we thought we had everything, without realising that no right can subsist without the symmetry of corresponding duties. the first duty is to demand that these rights are recognised, as well as respected and fulfilled. governments cannot be expected to do in the next 50 years what they have not done in the 50 years we are commemorating. so let us, ordinary citizens, take human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 18 the floor and the initiative. with the same vehemence and the same strength with which we claim our rights, let us also claim our duties”. based on this discourse, and again because of plural meetings, convened in this case by the autonomous university of mexico together with the josé saramago foundation and the world future society, the universal charter of the duties and obligations of human beings was drafted, and presented in 2017 under the leadership of cossío (minister of the mexico federal supreme court). the 23 articles of the charter, as stated in the introduction, “identify the obligations we shall fulfil in respect to ourselves, our fellow human beings, society, and the environment in which we live, with a perspective to future generations”. the preamble notes that: “the need of all individuals and social organisations in which they decide to participate to fulfil their legal duties and ethical obligations, and under no circumstances can non-compliance serve as a pretext for the state to be exempted from its own obligations”. among the duties, article 16 establishes the obligation for hospitality towards migrants, refugees, and asylum seekers. this is an important reference since, according to javier de lucas, the right to asylum is the most demanding expression of the bond of solidarity on which the third-generation rights and positive duties of a general and universal scope is based (2016: 64-71). thanks to these initiatives, a conviction seems to be taking hold in the international community about what we have been trying to show from the start: that duties constitute the hidden other side of rights, and that both require and enrich each other. “for rights, without responsibility, would be dragged into the spiral of individualistic solipsism and entangled in irresolvable conflicts; while duties, without corresponding rights, would make people hostage to an external and alienating constraint” (dumont et al. 2005: 41). the covid-19 pandemic has highlighted dimensions of the relationship between rights and duties on which more reflection is needed. these dimensions include: our common vulnerability and the constitutive interdependence that link us to others, human and non-human; the widening gap between those who have access to protection and those who are exposed; the risks of the spread of a contagion; the global scale of the problems we face; the relevance of cultural differences in the way we deal with a catastrophe; the global scale of the problems we face; the achievements, but also the dangers to individual freedom, of more disciplined societies with a great sense of responsibility in dealing with a pandemic emergency; and the inability of law to fulfil, through prohibitions and sanctions, the behavioural guidance and social control functions needed in an unprecedented health and economic crisis. as maría josé añón states: “the lesson to be learnt is that human rights obligations should not be derogated in times of pandemic” (2021: 22). as 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(coord.), hacia una nueva ética, siglo xix, méxico. rondeau, dany (2008), “la relation des droits aux devoirs: approche interculturelle” in aspects, 1, 141-166. santos, boaventura de sousa (2002), “hacia una concepción multicultural de los derechos humanos, el otro derecho, 28, 59-83. solanes, ángeles (2018), “the political, legal and moral scope of the universal declaration of human rights: pending issues” the age of human rights journal, 11, 1-23. https://doi.org/10.17561/tahrj.n11.1 https://doi.org/10.21898/dia.v55i64.218 https://doi.org/10.17561/tahrj.n11.1 human duties and rights in an intercultural perspective the age of human rights journal, 19 (december 2022) pp. 1-22 issn: 2340-9592 doi: 10.17561/tahrj.v19.7375 22 tubino fidel (2009), “aportes de la hermenéutica diatópica al diálogo intercultural sobre los derechos humanos” in monteagudo, c. and tubino, f., hermenéutica en diálogo. ensayos sobre alteridad, lenguaje e interculturalidad, fondo editorial de la pontificia universidad católica del perú, lima, 155-170. vachon, robert (1990), “l’étude du pluralisme juridique. une approche diatopic et dialogale”, journal of legal pluralism and unfficial law, 29, 163-173. https://doi. org/10.1080/07329113.1990.10756419 vasak, karl (1989), “proposition pour une déclaration universelle des devoirs de l’homme. introduction et texte” in les devoirs de l’homme. de la réciprocité dans les droits de l’homme, 9-16. zagrebelsky, gustavo (2007), el derecho dúctil. ley, derechos, justicia, trotta, madrid. zagrebelsky, gustavo (2013), “constitucionalismo”, derechos y libertades, 29, 19-38. zagrebelsky, gustavo (2017), diritti per forza, einaudi, torino. received: 19/02/2022 accepted: 28/04/2022 https://doi.org/10.1080/07329113.1990.10756419 https://doi.org/10.1080/07329113.1990.10756419 human duties and rights in an intercultural perspective abstract 1. two interdependent languages 2. the intercultural perspective 3. the context of the universal declaration of human rights: the timid but significant presence 4. statements of duties 4.1. precedents 4.2. the universal declaration of human duties (karel vasak) 4.3 responsibilities and duties at the 50th anniversary of the udhr references judicial balacing of parental objection to medical treatment on the basis of religious beleifs and children right to life in nigeria the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 523 judicial balacing of parental objection to medical treatment on the basis of religious beleifs and children right to life in nigeria david tarh-akong eyongndi1 samuel a. adeniji2 abstract: children being vulnerable, have special protection under the law through their parents or guardian who are responsible for them; and make decisions for them because they lack legal capacity. one of these decisions a parent/guardian makes is determining the religion of a child. once the parent/ guardian chooses the religion of the child, the child may become bound by its practices throughout childhood. while the right of parents to determine the religion of their children is recognised by domestic, regional and international laws, the way courts in nigeria treat this recognition suggests that the right is not absolute. this paper adopts the doctrinal methodology in interrogating the extent to which nigerian courts permit the observation by a child of the religious practices of his/her parent in relation to submission to medical treatment in order to protect the child’s right to life. this paper argues that law and morality are media of social control but have their convergence and divergence. it further argues that sanctity of human life which for many forbids suicide, requires that even adults should not be allowed to object to medical treatment which refusal may result in death which can be seen as “disguised suicide.” these authors examined the supreme court decision in medical dental practitioners disciplinary council v. okonkwo and found that; nigerian courts recognise parent right to choose their children religion and practices however, any religious practice prejudicial to the child based on the “best interest” principle provided under the child right act and its states equivalent will be jettisoned. it examines the practice in britain and canada and draw lessons for nigeria. this paper recommends public enlightenment, prohibition of harmful religious beliefs such as objection to life-saving medical procedure by parents for minors as means of balancing parents/guardian right to choose their children religious beliefs and preservation of the children right to life. keywords: child protection, right to religion, right to life, objection to medical treatment, law, nigeria. summary: 1. introduction. 2. the concept of child’s right under nigerian law. 3. the legal framework for protecting child’s right to life, religion and welfare in nigeria. 4. judicial stance on right to object to medical treatment by adults and parents/guardians for their children in nigeria. 5. the “best interest” principle as a catalyst for child right protection in nigeria. 6. medical consent in britain and canada. 6.1 britain. 6.2 canada. 7. conclusion and recommendations. 1 ll.b (hons) unical, ll.m (ibadan), bl, lecturer, private and commercial law programmee, college of law, bowen university, iwo, osun state, nigeria (david.eyongndi@bowen.edu.ng; davideyongndi@ gmail.com). 2 ll.m, b.l, lecturer, department of jurisprudence & international law, faculty of law, university of ibadan, nigeria (samueladeniji@ymail.com). mailto:david.eyongndi@bowen.edu.ng mailto:davideyongndi@gmail.com mailto:davideyongndi@gmail.com mailto:samueladeniji@ymail.com judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 524 1. introduction in nigeria, freedom of religion and conscience is recognised and protected under domestic, regional and international law.3 ogbu (2013, p. 298) opined that every person, irrespective of creed, colour, sex or any other distinguishing feature, has the right to hold a religious belief and to propagate same while respecting the right of others to do so. this right is exercisable by every adult. for children, they are generally treated as minors who are incapable of personally exerting their rights. thus, the parent or anyone in loco parentis is charged with the responsibility of exercising the rights of a child who is under their custody. dada (2013, p. 223) has asserted that it is not unexpected that every child naturally subscribes to the religion and religious practices of his/her parent or guardian. emiri (2012, p.304) has pointed out that parents as care givers and protectors of the rights of their children, are expected to adopt measures that would ensure the health and safety of their children including subscription to medical treatment. however, some parents due to their religious beliefs and adherence may object to certain kind of medical treatment for themselves and their children. the jehovah witness (jw) sect believes and propagates the belief that medical treatment that has to do with blood transfusion and ancillary treatments, is against their religious beliefs as they cite biblical phrase. based on the foregoing, osuagwu (2010, p.1) has contended that even under life treating circumstance, where blood transfusion is necessary medical procedure to save their life, they object to it asserting their right to freedom of religion and conscience protected under domestic, regional and international law. nigerian courts recognises that everyone has the right to freedom of religion and conscience as enshrined in the 1999 constitution. however, the question is, should the court allow the right of an adult to object to medical treatment on the basis of his/her religious belief to be extended to a child (under life-threatening situations) who is a minor and incapable of deciding for himself/herself bearing in mind that upon attainment of majority, may hold a contrary view to that of the parent/guardian? to what extent can a child be bound by the religious beliefs and practices of his/her parent/guardian with regards to medical treatment? addressing these issues is the main concern of this paper. this paper is divided into seven sections. section one is the general introduction. section two discusses the concept of child’s right by highlighting the various rights of a child in nigeria with emphasis on the right to life, religion and welfare. section three examines the legal framework for the protection of child’s right in nigeria from domestic, 3 see section 39 of the 1999 constitution of the federal republic of nigeria cap. c23 laws of the federation of nigeria (lfn) 2004; section 7(1) of the lagos state of nigeria child’s right law, 2007; section 7(1) of nigeria’s child’s right act, 2003; article 14 of the universal declaration of human rights, 1948; article 8 of the african charter on human and peoples right, 1988, article 9(1) of africa union charter on the rights and welfare of the child, article 14 of the united nation convention on the right of the child. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 525 regional and international perspectives. section four juxtaposes judicial authority, of the supreme court on the right to object to medical treatment based on religious beliefs by adult and by parents/guardians for their children/wards. section five examines the best interest of the child principle as the determinant of the position taken by the supreme court in the cases herein reviewed. section six examine medical consent in other jurisdictions in relations to adult and children in comparison to nigeria. section seven contains the findings, conclusion and recommendations. 2. the concept of child’s right under nigerian law from the outset, while this paper concentrates on appraising the attitude of nigerian courts in balancing the right of parents/guardians to object to medical treatment on behalf of their children/wards and the protection of the right to life of such children. thus, for proper understanding; it is necessary to examine the concept of child rights although passively. the concept of child right takes its roots from the general concept of human right enshrined in various human rights legal instruments from the magna carter to particularly the united nations universal declaration of human rights, 1948. reynaer, desmet. lembrechts, and vandenhole (2020) have opined that children rights are understood as fundamental claims for the realization of social justice and human dignity for children. children’s rights are fundamental: not all norms relating to or relevant for children can or should be characterised as children’s rights. just like human rights, more generally, children’s rights originate from the quest for human dignity and social justice. however, the concrete meaning of these notions will be different for different people. historians have argued that childhood, to a large extent, is a social construct.4 kosher, ben-arieh and hendelsman (2016, pp.9-15) argued that the concept of childhood emerged relatively recently, in the past 400 to 600 years. roche (1988, 5) is of the opinion that in the middle ages, the notion of childhood did not exist. children dressed in the same manner as adults and they engaged in the same pastimes. scott (1993, 229) states that their education was carried out by means of apprenticeship during which they worked side by side with adults. it was not until the renaissance and the reformation that the concept of childhood developed roche (1988, 5). during this period, children were perceived as innocent and weak. scott (1993, p. 229) opined that they (i.e. children) were regarded as needing proper and adequate discipline and assistance in order to develop into responsible adults. begley (1994, pp. 12) state that from the 1500s, children were not considered to have independent wills and, consequently, young persons were in total subjection to their parents. in the africa, childhood is a concept that is of paramount interest and the recognition of the place of a child as part of the family and larger society is of antiquity. onwauchi, (1972, pp. 241-247) contends that while the child is recognised as a person, he is dependant and his legal rights and obligations are traced to and exercised by his parents/guardian. according to agya, (2010, pp. 104-115) the 4 ukessays. (november 2018). the concept of child/childhood. retrieved from https://www.ukessays. com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed 16 february 2022) https://www.ukessays.com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed https://www.ukessays.com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 526 foregoing position does not mean that the rights of a child are neither recognised nor protected in the african traditional society, because children are generally considered as a vulnerable group and are given special protection and attention above other members of the society. the united nations convention on the rights of the child (uncrc) 1959 builds upon rights that had been set forth in a league of nations declaration of 1924. it is apposite to note that the league of nations was the predecessor organisation to the united nations. the preamble to the league of nations declaration (lnd) provides that children need “special safeguards and care, including appropriate legal protection, before as well as after birth.” this reiterates the 1924 declaration’s pledge that “mankind owes to the child the best it has to give.”5 according to freeman (1994, p. 320) it was only in the latter part of the twentieth century, and specifically the 1970s and early 1980s that the concept of children's rights emerged. bernard, ward and knoppers (1992-1993, pp.122-123) assert that during this period, there was recognition that children have interests, perhaps even rights that need to be considered distinctly and separately from those of adults, and particularly their parents. since this period up to the 1989 when the united nations child’s right convention was adopted, the issue of child’s right has become a universal phenomenon. in nigeria, both governmental and non-governmental organizations are involved in the propagation of child’s rights. in 2003, the federal government of nigeria (fgn) enacted the child’s right act which many states have domesticated as a comprehensive legislation on child’s rights promotion and protection. despite the enactment of this law and the domestication of same buy most states in nigeria and nigeria’s obligation under various international human rights treaties dealing with child’s rights, the challenge of violation of children’s rights subsists. uncontrovertibly, the issue is not with the laws but their implementation. they are mainly observed in breach than in compliance. kabo (2018, pp.35-56) argued that other factors aside lack of political will to enforce these laws are the quagmires of tradition and religious barriers. particularly in the northern regions of nigeria where islam in various shades and forms is being practiced, practices regarded as child abuse and violations are customarily and religiously encouraged as captured by ladan (2007, p.1). for instance, marriage of underage children who are made to consummate the marriage and even procreate is rampant, it it so notwithstanding the fact that this practice is considered a form of child abuse as observed by mohammed (2015, p.108). religion has been the main factor militating against the domestication of the child’s right act (cra) by most northern states as most of the provisions are at loggerhead with certain islamic practices. nwonu and oyakhiromen (2014, pp. 120-126) have argued to the effect that in some rural areas in the south and eastern regions of nigeria, child betrothal is still being practiced despite its prohibition by the cra. the justification is that it is a long standing practice or the volgiest of the people despite its obvious incompatibility with existing law and its repugnancy to natural justice, equity and good conscience as argued by akpan (2003, pp.70-76). as to who is regarded as a child, 5 available online at https://www.loc.gov/law/help/child-rights/international-law.php [accessed 6 may, 2020]. https://www.loc.gov/law/help/child-rights/international-law.php david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 527 section 277 of the child’s rights act and 262 of the child’s right law of lagos state, 2007 provides that a child is a person under the age of eighteen years. esiri and ejechi (2006, 203) argued that in most cities in nigeria, such as, lagos, port-harcourt, ibadan, asaba, onitsha, calabar, kano and abuja, several children loiter the streets hawking various items under rain and sun to commuters during school hours. folashade and iroye (2015, p.485) opined that it is needless to argue that these children are exposed to various vices while on the streets, some have become victims of sexual molestation, accident victims while others have become objects of ritual killings. the importance of protecting the rights of children cannot be overemphasized. therefore, nothing irrespective of its eminence can constitute a justifiable barrier especially in this 21st century when human rights takes centre stage in all human endeavours. 3. the legal framework for protecting child’s right to life, religion and welfare in nigeria this section examines both domestic, regional and international legal instruments protecting child rights in nigeria with emphasis on right to life and religion. while this section focuses on examining laws relating to the protection of the right to life, religion and welfare of a child, it is important to note that, it is inescapable not to make mention and interrogate (even if passively) other child’s rights that are intrinsic to the aforementioned ones bearing in mind the indivisibility of human rights (children’s right too). this is done without taking the focus off the rights (i.e. right to life, religion and welfare) which are the primary object of discussion herein. chapter 4 of the 1999 constitution of the federal republic of nigeria (herein simply referred to as 19999 cfrn) contains a bundle of rights applicable to all persons irrespective of age and sex. by virtue of section 33 and 34 of the 1999 cfrn, a child has right to life and respect to the dignity of his/her human person. as a result, no one can intentionally deprive a child of his/her life and the law insulate children depending on their age from criminal liability all in a bid to buttress their right to life. for instance, the criminal code6 per section 30 thereof, makes a child under the age of seven incapable of committing an offence under nigeria’s criminal jurisprudence and renders a male child below the age of 12years incapable of having carnal knowledge. taiwo (2011, p.35) have affirmed the foregoing presumption. these provision of the criminal code is an irrefutable presumption of law hence, in a criminal proceedings where a child below 7yrs is being tried, the court must come to the conclusion that no evidence can be admitted to the contrary same thing applies where a child is being tried for the offence of carnal knowledge. this protection is absolute and untrammelled once it is established that the child in question falls within the prescribed age. the child’s right act contains several rights pertaining to a child in nigeria but we will limit out discussions to the rights being examined (i.e. right to life, religion and welfare) while merely making mention of others.7 before further adumbration, a preliminary point must be noted that, section 3 of the cra provides the paramount consideration to be taken by anyone in relation to a child. this section is to the effect that in every or any 6 criminal code act cap. c38 laws of the federation of nigeria, 2004. 7 child’s right act, cap. c50 laws of the federation of nigeria 2004. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 528 action concerning a child, whether taken by an individual, public or private body, institution , court of law or administrative or legislative authority, the best interest of the child shall be the primary consideration.8 under the cra, a child has the right to necessary protection and care for his/her well-being.9 this implies that the parent/guardian of the child as well as the society as a whole, has a duty to provide the child with things that will support the well fare and or wellbeing of the child, these things will basically include shelter, food, clothing, education and safety. all these needs affects the right to life of a child whether directly or indirectly beside, indivisibility of human rights is a golden thread that is gaining prominence in agitation for the protection of human rights including children’s rights the cra makes applicable the provisions of chapter 4 of the 1999 cfrn to all children.10 to this end, rights such as privacy, dignity of human person, religion and conscience, freedom from discrimination, etc. contained under chapter 4 of the 1999 cfrn all inure to a child.11 going by the foregoing chapter of the 1999 cfrn, every child has the right to freedom of thought, conscience and religion; parents (and where applicable, legal guardians) are to provide guidance and direction in the exercise of these rights having due regard to the evolving capacities and best interest of the child.12 section 9 of the cra provides that every child is entitled to respect for the dignity of his person, and accordingly, no child shall be, subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse.13 the child also has right to leisure, recreation and cultural activities as well as right to parental care, protection and maintenance.14 kabo (2021, pp. 131-138) pointed out that section 29 of the cra makes the prohibitive provisions of sections 68, 59, 60, 61, 62 and 63 of the labour act15 which prohibits child labour, night work by children applicable muntatis mutandi as these prohibited activities exposes a child to avoidable danger which threatens the child’s life and welfare. the cra further prohibits buying, selling, hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution, and a person who contravenes this provision is liable on conviction to ten year imprisonment term.16 with regard to health, every child is entitled to enjoy the best attainable state of physical, mental and spiritual health hence, any action that is inimical to the health of a child predicated on any factor, including parents or guardians religious belief, will be considered not to be in the best interest of a child.17 the trafficking in persons (prohibition) law enforcement and administration act18 prohibits the procurement, recruitment, use or offer for use of any person under the age of 18 years for the production of pornography or for pornographic performances.19 anyone who does this is liable to imprisonment of not less 8 ibid. s. 1. 9 ibid. s. 2. 10 ibid. s. 3. 11 ibid. ss. 9, 10, 11. 12 child’s right act, 2003.s. 7. 13 ibid s. 9. 14 ibid. 12 and 14. 15 labour act cap. l1 laws of the federation of nigeria 2004. 16 child’s right act, 2003.s. 30. 17 s. 13 child’s right act, 2003. 18 trafficking in persons (prohibition) law enforcement and administration act cap. t23 laws of the federation of nigeria 2004. 19 ibid. s. 17. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 529 than seven years and a fine of not less than n 1, 000,000 (one million naira). a person who promotes or facilitate the foreign travel of any person less than 18years for prostitution or such activities, upon conviction, is liable to imprisonment of not less than seven years and a fine of not less than n 1, 000,00020 (one million naira). these prohibitions is to guarantee the welfare of a child as well as safeguard their right to life from infringement. also, the compulsory, free universal basic education act21 provides every child with the right to compulsory, free basic education and places a responsibility on all parents to ensure that their children attend and complete primary education and junior secondary school.22 the rights examined under the trafficking in persons (prohibition) law enforcement and administration act and compulsory, free universal basic education act are intrinsic to a child’s right to life or how does one explain that a child who is exposed to any of the menaces under these law has his or her right to life protected? to argue that where a child’s right to life is being recognised and protected while the child is exposed to any of these menaces is to reduce or equate right to live to merely being alive irrespective of the mental, psychological, emotional and physical wellbeing of the child which are the actual determinants. at the international plane, the preamble to the universal declaration of human rights makes the provisions of the declaration applicable to all humans, children inclusive. 23 thus, the various rights guaranteed there are applicable to children. articles 18 and 26 guarantee right to freedom of religion of all persons including children as well as right to education which should be free at least at the elementary stage. the united nations convention on the rights of the child24 which nigeria ratified in 1991stipulates that; any action taken by the court, administrative or legislative body or an individual, the best interest of the child shall be the paramount consideration. a child has the right to enjoy the highest attainable standard of health and to facilities for treatment of illness and rehabilitation of health.25 the convention also recognises the inherent right to life of every child and enjoins all states to guarantee same by ensuring the survival and development of children.26 under the convention, state parties recognises the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.27 it enjoins all state parties to take appropriate measures to protect children from all forms of exploitation prejudicial to any aspects of the child’s welfare. the convention accords to every child the right to freedom of thoughts, conscience and religion which exercise is to be supervised by the parent or legal guardian of the children having regard to the evolving capacities of the child.28 the african charter on human and people’s rights (achpr)29 20 ibid. s 18. 21 compulsory, free universal basic education act, cap. c52 laws of the federation of nigeria 2004. 22 ibid. s .2 and 3. 23 universal declaration of human rights, 1948. 24 united nations convention on the rights of the child. 25 ibid. art. 14 26 ibid. art. 7. 27 ibid. art. 15. 28 ibid. ar. 9. 29 african charter on human and people’s rights 1981. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 530 which was ratified by nigeria in 1983 is a regional human rights legal instrument that deals with the protection of the right to life, religion, and welfare of children as far as nigeria is concerned.30 articles 4, 5 and 6 of the achprs guarantees the right to freedom of conscience, the profession and free practice of religion by a child as well as right to life and respect for the integrity of the person of every child.31 also, the african union charter on the right and welfare of the child adopted in 1990 but ratified in 1999 by nigeria (aucrwf) is another regional human rights instrument that recognises the right to life, religion and welfare of a child in nigeria.32 it enjoins member states to abolish any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations created under the charter to the extent of its consistency with the charter.33 it guarantees the child’s right to non-discrimination irrespective of any factor such as race, colour, tribe, religion, age, sex, language, fortune, circumstance of birth, political opinion, etc. an overriding principle under the aucrwf) is that of “the best interest of the child rule. the principle which requires that in every action concerning a child undertaken by anybody (private or public), the best interest of the child shall be the paramount consideration at all times.34 the charter also protects a child’s right to life which is inherent and state parties shall ensure to the maximum extent possible, the survival, protection and development of the child and dead sentence shall not be pronounced for crimes committed by children.35 the charter enjoin all member states to protect children against sexual exploitation and drug abuse which is inimical to their welfare.36 4. judicial stance on right to object to medical treatment by adults and parents/guardians for their children in nigeria this section of the paper critically examines two decisions of the supreme court of nigeria where the court has pronounced on the right of an adult to object to medical treatment based on religious belief, and the extent of the right of a parent or guardian to object to medical treatment for his/her child. thus, it examines judicial authorities dealing with both adults and children. it must be noted at this juncture that; there is a dearth of judicial authority on parent/guardian’s objection to medical treatment for their children/wards in nigeria unlike adult objection to medical treatment on account of religious belief. the first decision is that of medical and dental practitioner disciplinary committee v. dr. nicholas okonkwo.37 the brief facts of the case are as follows: mrs. martha okorie “the patient” and her husband loveday okorie, a members of the jehovah 30 nigeria domesticated the african charter on human and people’s rights pursuant to section 12 of the 1999 constitution of the federal republic of nigeria cap. c23 laws of the federation of nigeria, 2004 by enacting the african charter on human and people’s rights (ratification and enforcement) act cap. a10 laws of the federation of nigeria 2004. 31 ibid. art. 4, 5 and 8. 32 african union charter on the right and welfare of the child, 1991. 33 ibid. art. 1(3) african union charter on the right and welfare of the child, 1991. 34 ibid. art. 4. 35 ibid. art 5 (1) (2) (3). 36 ibid. art. 27 and 28 respectively. 37 [2001] 7 nwlr (pt. 711) 206. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 531 witness religious group who believe that blood transfusion as a form of medical treatment is contrary to their beliefs and practices as it amounts to “eating” or “consuming” of blood. mrs. okorie who was 29 years old, had a delivery at a maternity facility on the 29th day of july, 1991, was admitted as a patient at kenayo specialist hospital for a period of nine days. she complained of difficulty in walking and severe pains at the public area. at kenayo hospital, tests were run and the diagnosis showed a severe ailment which led the doctor to recommend blood transfusion. the patient and her husband vehement refused the option of blood transfusion. the doctor, after failed attempts of persuasion, discharged them and gave them a note disclosing that they have refused blood transfusion despite explanation and appeals that it was a life saving measure for the patient based on her diagnosis. her husband demanded that she be discharged and the physician was constrained and did so. having been discharged against medical advice, the patient was taken to jeno hospital by her husband on the 17th august, 1991. the husband at jeno hospital, produced to dr. nicholas okonkwo a card signed by the patient titled “medical directive/release.” the signed card prohibited anyone treating the patient from administering blood transfusion on her but could use non-blood expanders to treat her as to do otherwise, would be contrary to her religious belief as a jehovah witness (jw). according to her, the bible in acts chapter 15:28-29, command them (jw) to withstand from blood. she accepted any added risk her refusal of blood transfusion may cause and releases the doctors and all personnel from any responsibility who abide by her directive from any untoward result caused by her refusal, despite their competent care. she further directed the witnesses to her decision (her husband and uncle) in the event that she loses consciousness to ensure that the decision is respected. her husband in another document signed by him reiterated the position of his wife and further directs that the patient’s decision not to accept transfusion or any similar treatment is final and in the event that he becomes unconscious, same must not be changed howsoever. he also released the personnel of jeno hospital from any untoward outcome based on their refusal despite their best efforts. based on these documents, the respondent proceeded to treat the patient without administering blood transfusion. however, the patient died on the 22nd day of august, 1991. as a result, the respondent was charged before the medical and dental practitioner disciplinary tribunal on two counts. count one was for attending to the patient in a negligent manner and thereby conducting himself infamously in a professional respect contrary to the medical ethics punishable under section 16 of the medical and dental practitioners act. the second count was for acting contrary to his oath as a medical practitioner and thereby conducted himself infamously in a professional respect contrary to the same provision of the same law stated above. the prosecution opened it cases and the officer of the medical and dental council testified against the respondent with two other (the deceased mother and uncle) who had reported the death to the mdpdt; they tendered evidence in support of their testimonies. the respondent and the deceased husband testified for him to the effect that the deceased and her husband objected to blood transfusion and persisted in their objection even after the respondent had informed them of the untoward outcome of their refusal as it was necessary to save the deceased life. in maintaining their insistence against the respondent’s advice, the husband signed the judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 532 document that stated their objection to the medical procedure as well as absolving the respondent and his hospital from liability due to their insistence. he gave evidence to the fact that had the patient consented to blood transfusion, he would have arranged for it. he stated that the medical ethics and oath as opposed to his religious belief and practice as a jehovah witness, guided his treatment of the patient. the patient husband testified that the respondent was willing to transfer her to another hospital but had to respect their objection to a transfer, too. the tribunal found the respondent guilty not for his own religious belief nor respecting that of the patient but for holding unto the patient knowing that she could have been given the required treatment in another medical facility where the inhibition placed by the patient and her husband could have been dislodged particularly when he was aware that the appropriate treatment could not be given by him due to his failure to obtain the requisite consent. the respondent pleaded not guilty to the charges. he was therefore suspended for six months on each of the count of charges to run concurrently. the respondent being dissatisfied with the tribunal’s decision lodged an appeal to the court of appeal. the court of appeal upheld the appeal and upturned the tribunal’s decision by setting it aside. the appellant being dissatisfied with the decision of the court of appeal, filed an appeal to the supreme court against the decision of the court of appeal setting aside the trial tribunal’s decision. as to the alleged infamous misconduct in a professional respect, the supreme court held that the medical and dental disciplinary tribunal had no jurisdiction to entertain and adjudicate upon the charges as framed because they disclose an element of crime which it is not competent to adjudicate. its function under section 15 of the medical and dental practitioners act is to consider any case referred to it pursuant to section 15(3) thereof and not crimes at large. on an adult patient’s right to object to medical treatment, due to its germane nature, the court’s decision is hereby produced verbatim ad literatim as follows38 (reference needed here to actual court decision name): … the right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief. the limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy. the sum total of the rights of privacy and freedom of thought, conscience or religion which an individual has, pit in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary. law’s role is to ensure the fullness of liberty when there is no danger to public interest. ensuring liberty of conscience and freedom of religion is an important component of that fullness. the 38 medical and dental practitioner disciplinary committee v. dr. nicholas okonkwo [2001] 7 nwlr (pt. 711) 206 at 244-245, paras. f-e. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 533 courts are the institution society has agreed to invest with the responsibility of balancing conflicting interests in a way as to ensure the fullness of liberty without destroying the existence and stability of society itself. it will be asking too much of a medical practitioner to expect him to assume this awesome responsibility in the privacy of his clinic or surgery, unaided by materials that is available to the courts or, even, by his training. this is why, if a decision to override the decision of an adult competent patient not to submit to blood transfusion or medical treatment on religious grounds, is to be taken on the grounds of public interest or recognized interest of others, such as dependent minor children, it is to be taken by the courts. it is to the credit of the tribunal in this case that it acknowledged the right of the individual to hold his religious belief and that it also accepted that a practitioner should respect the religious beliefs of others. its decision in the case, however, progressed into error when it deviated from the correct path into ignoring the concomitants of the right of the patient to reject medical treatment or blood transfusion on religious grounds, and concluded that the respondent was guilty of infamous conduct ‘for holding onto the patient knowing fully well that the correct treatment cannot be given in the face of failure to obtain consent.’ since the patient’s relationship with the practitioner is based on consensus, it follows that the choice of an adult patient with a sound mind to refuse informed consent to medical treatment, barring state intervention through judicial process, leaves the practitioner helpless to impose a treatment on the patient. that helplessness presents him with choices. he could terminate the contract, and, i would say, callously, force the patient out of his clinic or hospital, he could continue to give him refuge in his hospital and withdraw any form of treatment; he could do the best he could to postpone or ameliorate the consequences of the patient’s choice. to a large extent, the practitioner should be the judge of the choice that may be better in the circumstances. the choice becomes one of personal attitude rather than professional ethics.39 the above decision is to the effect that under normal circumstances, no medical doctor can forcibly proceed to apply treatment to a patient of full age and sane faculty without the patient’s consent, first sought and obtained, particularly if that treatment is of a radical nature such as surgery or blood transfusion.40 dada (2013, p.123) has opined that the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient. while adhering to this, the medical practitioner must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal to give consent and the fact that he reserve the right to withhold consent.41 patient consent is fundamental and it is of 39 medical and dental practitioner disciplinary committee v. dr. nicholas okonkwo [2001] 7 nwlr (pt. 711) 206 per ayoola jsc (as he then was) at 245, para. g. 40 in re yetter (1973) 62 pa d & c2d 619. 41 sideway v. board of governors of bethlehem royal hospital (1985) 1 ac 871. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 534 great antiquity. emiri (2012, p.299) has argued that the common law has long recognized the principle that every person has the right to have his bodily integrity protected against invasion by others. the seriousness with which the law views any invasion of physical integrity finds its justification in the fact that everyone has the right of self-determination with regards to his body. every touching of the patient is potentially battery. it is the patient’s consent, either implied or express, which makes the touching legally innocuous. at law, no treatment is to be administered to a patient without his consent merely because others reason that it is for his benefit. anyone who does would be treated as a busybody that would expose himself to actionable trespass. the decision above is in tandem with the english court decision in s v. mcc42 where lord reid held that: english law goes to great length to protect a person of full age and capacity from interference with his personal liberty. we have too often seen freedom disappear in other countries not only by coup d’état but by gradual erosion and often it is the first step that counts. so, it would be unwise to make even minor concessions… it is a legal wrong to use constraint to an adult beyond what is authorized by state or ancient common law powers connected with crime and the like. all this is anchored on the autonomy of the patient. according to dworkin (1988, p.6), from human rights perspective, autonomy can be equated to liberty, dignity, integrity, individuality, independence, responsibility and self-knowledge, self-assertion, critical reflection, freedom from obligation, absence of external coercion, and knowledge of one’s own interest. the world medical association declaration43 guarantees the patient’s right of autonomy with regards to medical treatment. it is apposite to note that where the issue of lack of consent or objection to a medical treatment by an adult is not made known to a medical practitioner who administered same, there cannot be successfully established a case of violation of the right to privacy and religion. the person who does not subscribe to a particular medical treatment must disclose this to the medical practitioner else volenti no fit injuria44 will come to play opined malemi (2008, p.65). also, where an adult patient is brought to a medical facility unconscious and treatment that the person does not approve is administered, upon gaining consciousness, it is doubtful whether a claim for violation of his right based on religious beliefs and practices can be successfully maintained as lack of knowledge on the part of the medical practitioner would exculpate him from any liability.45 this is anchored on the constitutional guaranteed rights of privacy and right to freedom of thoughts, conscience and religion contained in sections 37 and 38 of the 42 (1972) ac 24 at 43. 43 principle 3 (a) world medical association declaration of lisbon on the right of the patient 1948. 44 this latin maxim means “to a willing person, it is not a wrong.” it connotes a situation where a person knowingly and voluntary consent to an act or omission, he/she cannot subsequently complain of any harm suffered from the act/omission. see also omole c, “the nigerian senate and volenti non fit injuria – a legal analysis of sen. ndume suspension” <https://charlesomole.org/the-nigerian-senate-and-volenti-nonfit-injuria-a-legal-analysis-of-sen-ndume-suspension/> accessed 25 february 2022. 45 in re osborne (1972) dist col app. https://charlesomole.org/the-nigerian-senate-and-volenti-non-fit-injuria-a-legal-analysis-of-sen-ndume-suspension https://charlesomole.org/the-nigerian-senate-and-volenti-non-fit-injuria-a-legal-analysis-of-sen-ndume-suspension david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 535 1999 cfrn which in the circumstance are absolute, sacrosanct and untrammelled. this unfettered right of an adult to object to medical treatment is not an unruly horse. according to iyasere and ienlanye (2018, p. 83) situations may arise necessitating the medical practitioner to discountenance the refusal of an adult patient’s right to refuse a particular medical treatment. the point must be noted that the right to refuse medical treatment by an adult and the corresponding obligation on the part of medical practitioners to respect that decision is not dependent on whether or not the patient is an upstanding member of society. obidimma and obidimma (2014, pp.150-162), annas (1983, p.918), gbobo and oke-chinda (2018, pp.15-25), lokulo-sodipe (2009, pp. 079-087) have opined that the law is simply that an adult cannot be compelled against his wish to accept lifesaving treatment, even if he is a criminal, except where to do so may be in the interest of the public policy, interest or safety. of course, individual rights (including an adult right to object to medical treatment guaranteed by sections 34 and 37) are subject to public policy, interest and safety as was held by the supreme court of nigeria in dokubo-asari v frn.46 for instance, where an armed robber was shot and was badly wounded, he was rushed to the hospital and diagnosis shows that it will require blood transfusion to save his life, if he objects to same pursuant to sections 37 and 38 of the 1999 cfrn, the medical practitioner would be right to ignore the objection. the reason is, as a suspect particularly of such a heinous crime, public policy and safety requires that he be kept alive to face trial. the law cannot come to his/her aid in order for him/her to avoid answering to the alleged armed robbery offence. to do so, would amount to using the law against public interest under the most questionable circumstance which is not permitted by the law. in esabunor & anor. v. faweya & ors.47 the supreme court examined the extent of the right of parents or guardian to object to medical treatment for their children or wards based on their religious beliefs and practices pursuant to section 37 and 38 of the 1999 cfrn. the brief facts of the case are as follows. the second appellant is the mother of the 1st appellant. she gave birth to a boy on april 19, 1997 at the chevron clinic, lekki peninsula, lagos, nigeria. one month after birth, he became seriously ill and he was taken back to the clinic where he was born for urgent treatment on the 11th day of may, 1997. the 1st respondent was the one who treated the 1st appellant, from the diagnosis; he found out that the 1st respondent needed blood transfusion as a life saving measure. the 2nd respondent and her husband sternly protested and objected that on no account should the 1st appellant be subjected to blood transfusion as there are several medical hazards such as human immunodeficiency virus (hiv) contraction, hepatitis, etc. and as members of jehovah witness sect, blood transfusion and the likes, is forbidden by their religion. the 1st respondent remained unyielding to the protest and stern warning of the 2nd appellant and her husband. he therefore contacted the police authority and the learned counsel to the commissioner of police, lagos state filed an originating motion ex-parte before the 5th respondent. the motion was brought pursuant to section 27(1) and 30 of the children and 46 [2006] 11 nwlr (pt. 991) 324. 47 (2019) lpelr-46961 (sc). judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 536 young persons law, cap. 25, laws of lagos state, nigeria. it sought for an order “that the medical authorities of the clinic of chevron nigeria limited lekki peninsula lagos be allowed and are hereby permitted to do all and anything necessary for the protection of the life and health of the child tega esabunor and such further order or orders as the court deem fit in the circumstances.” after hearing counsel for the applicant, the chief magistrate granted the application under its inherent jurisdiction. pursuant to this order, the 1st respondent administered blood transfusion on the 1st appellant same day against the objection of the 1st appellant and her husband. the 2nd appellant (i.e. the 1st appellant’s child) got well and was discharged. subsequently, the 2nd appellant filed an application on notice before the chief magistrate court seeking to set aside the order of the chief magistrate authorizing the doing or anything by chevron clinic to protect the life and health of the 1st appellant but it was dismissed. being dissatisfied with the dismissal order, the appellants approached the high court for an order of certiorari and damages of 10 million naira (ten million naira) only. in a well-considered ruling, the learned trial judge, refused the prayer and the claim for damages. being dissatisfied with the decision of the high court, the appellants appealed to the court of appeal. the court of appeal heard the appeal and affirmed the decision of the high court dismissing their application for certiorari and payment of damages. they further appealed to the supreme court against the judgment of the court of appeal. several issues were raised for the determination of the supreme court but issue 4 is what we are concerned with. the said issue four was whether the court of appeal was correct in holding that the 2nd appellant’s refusal to give consent to blood transfusion amounted to an attempt to commit a crime or to allow the 1st appellant to die. the supreme court in resolving this issue, reiterated the position of the law established in medical and dental practitioner disciplinary committee v. dr. nicholas okonkwo48 that an adult who is conscious and in full control of his mental capacity, and of sound mind has the right to either accept or refuse medical treatment (blood transfusion). the hospital or medical practitioner has no choice but to respect their patient’s wishes even when it may create untoward outcome which they are duty bound to explain to the patient and allow him/her to take or leave it. however, when it is a child, the unfettered discretion granted an adult patient to object to medical treatment is not applicable as different considerations apply because a child is incapable of making decisions for him/ herself. the law is therefore duty bound to protect a child from potential abuse of his/ her right because the child upon attainment of the age of majority, may decide to adopt a different religion from that which his/her parent have chosen for him. this will imply that all the restrictions festered on such a child by his/her parent/guardian including restriction/prohibition to certain medical treatments, are thereby jettisoned by the child. it is inconsequential that the decision to refuse a particular medical treatment (i.e. blood transfusion) was made by his parent/guardian who is legally authorised to make decisions for and on behalf of the child. thus, where a parent refuses blood transfusion for their 48 [2001] 7 nwlr (pt. 711) 206. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 537 child on religious grounds pursuant to their constitutional right enshrined in sections 37 and 38 of the 1999 cfrn, the court must step in, regarding the child’s welfare as the paramount consideration and not the parent’s transferred religious belief or dogma. by the foregoing, the court is invited into the situation which can be described as a contest between adherence to the parent/guardian religious beliefs and dogma, and the need to save the life and preserved the best interest of the child. the court is therefore invited to consider these contending interest and create a balance. applying the foregoing test, the court ruled that the religious belief of the 2nd appellant and her husband must be jettison for the overriding interest of saving the life of the child and affirmed the decision of the court of appeal. okoro jsc held that: it is instructive to note that the law exists primarily to protect and preserve the fundamental right of its citizens inclusive of infants. the law would not override the decision of a competent mature adult who refuses medical treatment that may prolong his life but would readily intervene in the case of a child who lacks the competence to make decision himself… it could have amounted to a great injustice to the child if the court had stood by and watched the child being denied of basic treatment to save his life on the basis of religious conviction of his parent. he probably would not be alive today… in a life-threatening situation, such as the 1st appellant was a child. the consideration to save his life by application of blood transfusion greatly outweighs whatever beliefs one may hold, especially where the patient is a child.49 aderibigbe and okonkoh (2021, pp.449-461) have asserted that this decision is a welcomed development in the area of protection of the child’s rights under nigerian law. if parents or persons in loco parentis50 are given an unrestrained right to choose their children and wards religion and for them to be bound in toto, untoward consequences may arise especially where such beliefs seeks to deny the child medical treatment that may be a life saving measure. the need to protect and preserve the right of a child through medical treatment must always outweigh the need to adhere to its parent prescribed religious beliefs and practices. it is only by doing so that the child can be afforded the opportunity to attain majority and personally exercise his right of freedom of thoughts, conscience and religion which may be in compliance to that which his/ her parent had chosen or totally different. this right must not be trader for anything and the courts, medical care givers and government agencies must not be reluctant in intervening in deserving situations. however, it is apposite to note that in cases of emergency, a minor can be treated without the consent of his/her parent/guardian.51 49 (2019) lpelr-46961 (sc) at pp. 36-38. 50 this latin maxim means that a person (s) who are placed in or are in the position of a parent in relation to a child. 51 banks v. medical university of south caroline (1994) 444 2d 519. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 538 5. the “best interest” principle as a catalyst for child right protection in nigeria this part of the paper discusses the “best interest” principle by arguing that it is a catalyst for the protection of the right of children in nigeria and it influenced the decision of the supreme court in the cases discussed in the preceding sections. this principle is provided for in section 1 of the childs right act and in the child’s right laws of the various states that have domesticated same. it provides that in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration. the profoundness of the above provision to the protection of the rights of children in nigeria by all and sundry is obvious. it categorically prescribed the procedure to be followed in any matter concerning a child. the blueprint laid down here is that the “best interest” of the child is to guide the court in making any decision pertaining to a child. unfortunately, despite the plausibility of this principle, the act whether by sheer legislative inadvertence, or lack of foresight, does not define what best interest of the child entails. this notwithstanding, beauchamp and childress (2001, p.102) interpolating this principle from a medical caregiver position, posits that “the best interest standard is one in which a surrogate decision maker must determine the highest net benefit among the available options, assigning different weights to interests the patient has in each option and discounting or subtracting inherent risk or cost.” okunrobo (2014, p.114) argued that it could be simply regarded as “the decision of the court to weigh the options open to the child and take a decision in the child’s best interest, for which the child would have done, if he had the sufficient understanding to do so.” this principle enjoins the court as well as everyone concerned when dealing with any matter pertaining to a child, to make the well fare or interest of the child the paramount consideration of any decision that will be made. it is crystal clear that the case of esabunor & anor. v. faweya & ors.52 is a conflict between obedience to a child’s parent religious inclination and preservation of the life of the child. noteworthy is the fact that freedom of religion and right to life are both constitutional guaranteed rights in nigeria, nevertheless, the superiority of the right to life over religion cannot be overemphasized. only a person who is alive can assert his/her right to religion and any other right for that matter. the childs’ right act per section 3 thereof, provides every child with the right to life, survival and development. section 12 thereof, provides that every child is entitled to enjoy the best attainable state of physical, mental and spiritual health. the child’s right to survival and development entails, he must have access to health care services for his/ her survival and development for the attainment of the best state of physical, mental and spiritual health. a child as an “incompetent person” cannot access these rights, except 52 (2019) lpelr-46961 (sc). david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 539 through a proxy, i.e. the parent or anyone in loco parentis. when the proxy refuses, fails and or neglect to aid the child access these rights, the court can and must intervene to avail them to the child. this is so as the act enjoins the state to prevent infant mortality,53 which invariably means preservation of the child’s right to survival and development. the corollary of this is that the court by so doing, honours the child’s right to dignity of his human person as the child is not subjected to avoidable medical deprivation leading to the termination of the life of the child. the best interest test under nigeria’s childs right act is applicable in britain under its child right act.54 it has been applied by the uk court to prolong the lives of children whose parent took positions inimical to their live pursuant to their religious beliefs. in re b55 the child was born with down syndrome (ds) and a blocked intestine which if not operated upon, will be fatal. her parents preferred that she die just a few weeks after birth as a natural consequence of the condition of her birth. the local authority applied to the court to have the child as it ward, the application was granted. she was kept from pain and suffering through sedation and moved to another hospital for the operation, but the surgeons in the hospital she was moved to had a contrary opinion. the court of appeal applied the best interest of the child to decide that if the operation is carried out successfully, it could afford the child the opportunity to live a normal life. in re r56 the court apply the best interest of the child principle, overrode the objection of the parent to have the child subjected to blood transfusion by the doctor in treating her of leukaemia. 6. medical consent in britain and canada this section of the paper examines the practice of medical consent in some other jurisdictions in comparison to nigeria. britain and canada are selected for at least two main reasons, nigeria was colonised by britain as a result, the laws and legal philosophy of britain was imported to nigeria and the decision of her courts shaped and influenced nigeria’s. both britain and canada are commonwealth jurisdictions and have advanced practice on the issue from which nigeria can draw lessons. 6.1 britain the position of the law from judicial authorities is that for an adult to be examined or treated by a medical practitioner, the consent of the adult must be sought and obtained. such an adult reserves the right to object to medical treatment. in sidaway v. bethlehem royal hospital57 the house of lords held that a doctor operating without consent, save in emergency or a case of mental incapacity, commits 53 s 12 (a) childs right act, 2003. 54 s 8 english child right act, 1989. 55 (1990) 3 all e.r. 927. 56 (1993) 2 flr 757. 57 [1985] ac 871 at 87, 904. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 540 trespass and criminal assault. an adult patient’s right to reject medical treatment was reaffirmed by lord denning in re t58 in fact; an adult can appoint proxy in the event of incapacitation to assert his right to reject a particular medical treatment as was held in airedale nhs trust v. bland.59 6.2 canada like in the uk, the judicial position in canada gives an adult the right to object to medical treatment on grounds of his/her religious beliefs. in malette v. shulman60 a doctor operated on a jehovah witness although he was informed that a card in her purse has her instruction that on no condition should she be given blood transfusion. she sued the doctor for disregarding her wishes. the doctor’s defence that the blood transfusion was necessary since she was an accident patient and her life needed to be saved as society had an interest in the preservation of her life was discountenanced. the ontario court of appeal in awarding damages in favour of the patient held that: a competent adult is generally entitled to reject a specific treatment or all treatment or to select an alternative treatment, even if the decision may entail risk as serious as death and may appear mistake in the eyes of the medical profession or of the community. regardless of the doctors, opinion, it is the patient who has the final say on whether to undergo the treatment. in banks v. medical university of south caroline61 the plaintiff was a jehovah witness, brought an action against the defendant hospital for wrongful death and battery for non-consensual administration of blood on her eight year daughter. she was admitted due to respiratory distress and hip pain. they respondent performed surgery on her and against the plaintiff’s instructions, administered blood plasma on her but she did not survive. the court held that although the plaintiff had no authority to withhold necessary medical treatment for her daughter even if same was contrary to her religious beliefs, notwithstanding, the transfusion amounted to battery in that it was not consented to by the parent when no emergency arose.62 7. conclusion and recommendations under nigerian law, a child enjoys several rights in various spheres of life. these rights include right to basic education, freedom from forced or injurious labour such as night work or underground work, right to healthy life and unimpaired growth, right to basic necessities of life such as food, shelter and clothing. these rights include 58 (1992) 9 bmlr 46. 59 (1993) 12 bmlr 64. 60 (1990) 47 dlr 18. 61 (1994) 444 2d 519. 62 state of washington v. king country hospital (1967) 278f. supp. 488. david tarh-akong eyongndi; samuel a. adeniji the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 541 the general rights available to all persons under chapter two of the 1999 cfrn. the parent or persons in loco parentis has the responsibility of ensuring that the rights of the child are protected and realized because a child lacks the requisite legal capacity to enforce his/her rights personally. as a result, his/her parent make necessary choices towards the realization of these rights because the law recognises parents/guardian right to do so. in doing so, the parents/guardians determine the religion of the child, and the child is bound by the beliefs and practices of such a religion chosen by the parent/guardian. where an adult of a sound mind, in furtherance to his or her religious beliefs guaranteed by law, objects to medical treatment, even where the objection may have untoward consequences, the medical practitioner under nigerian law, has a duty to obey the objection. this duty to obey the objection, nevertheless, is an affront on the sanctity of human life which cannot be created by any human and no human should be allowed to do anything that may lead to its destruction. however, when it comes to a child patient, the parents are allowed to decide his/her religion but adherence to its beliefs and practices is only sacrosanct to the extent that the child’s right to life and adequate medical treatment to preserve his/her life is not threatened. where adherence to the parents/guardian’s religious beliefs would expose the child to avoidable hazard, the law would step in to ensure that the interest of the child (which is the paramount consideration in any action or decision pertaining to a child) is protected. this is because the child may grow up and exercise his right to freedom of thoughts, conscience and religion in a manner contrary to that which his/her parents/guardian have chosen for him/her as a child. the law has a duty to ensure that a child’s right to make his own choice upon attainment of the age of majority is not jeopardized by his/her parent/guardian religious beliefs which the parent/guardian chose and bestowed on the child. while religious beliefs and dogmas are controversial issues in nigeria which is multi-religious with extreme religious consciousness, the sacredness of life cannot be overemphasised hence, the imperativeness of preserving same. prohibition of religious beliefs such as refusal of blood transfusion may not be an effective means of curbing the “harmful religious belief” when it is considered against the background that even the 1999 cfrn which is the supreme law, grants nigerians the right to have such beliefs. thus, it is recommended that enlightenment campaigns be deployed to sensitise the general public (especially adherents to such harmful religious beliefs) on the danger of harmful religious beliefs. in doing this, the position laid down by the supreme court as regard objection to medical treatment by parents/guardians for their children/wards should be discussed this is capable of dissuading adherents from continuing in such beliefs. also, the medical and dental practitioners council and other organisations within the medical field, should sensitise their members on the position of the law as laid down in the case. this will foreclose the possibility of a medical practitioner ignorantly restraining him/herself from carrying out lifesaving procedure on a child because of failure of the parent/guardian to give consent. judicial balacing of parental objection to medical treatment on the basis of religious beleifs the age of human rights journal, 18 (june 2022) pp. 523-544 issn: 2340-9592 doi: 10.17561/tahrj.v18.7009 542 references aderibigbe, t.o and okonkoh a.c. 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(2011) ‘presumption” in akintola, a.l. and adedeji, a.a. nigerian law of evidence: a book of reading in honour of oluwarotimi akeredolu san, ibadan: university press ltd., 35. ukessays. (november 2018). the concept of child/childhood. available at: https:// www.ukessays.com/essays/young-people/the-concept-of-child-childhood. php?vref=1(accessed 16 february 2022). received: 18/11/2021 accepted: 09/03/2022 https://www.ukessays.com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed https://www.ukessays.com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed https://www.ukessays.com/essays/young-people/the-concept-of-child-childhood.php?vref=1(accessed judicial balacing of parental objection to medical treatment on the basis of religious beleifs an abstract 1. introduction 2. the concept of child’s right under nigerian law 3. the legal framework for protecting child’s right to life, religion and welfare in nigeria 4. judicial stance on right to object to medical treatment by adults and parents/guardians for th 5. the “best interest” principle as a catalyst for child right protection in nigeria 6. medical consent in britain and canada 6.1 britain 6.2 canada 7. conclusion and recommendations references human rights and current discriminatory manifestations (on the example of age discrimination in the social and communicative sphere) the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 71 human rights and current discriminatory manifestations (on the example of age discrimination in the social and communicative sphere) nataliya hren1 mykhailo kelman2 maiia pyvovar3 anna koval4 yaroslav melnyk5 abstract: the article provides a comprehensive analysis of counteracting human rights violations due to age discrimination in the social and communicative sphere to identify problematic aspects of this discrimination; to study current changes in connection with the pandemic threat and generalize a set of legal guarantees to prevent and counteract inappropriate legal policy in this area. the research is based on a humanistic approach, which determines the individual value criterion of the research methodology and is manifested through the ideology of anthropocentrism; a complementary approach to scientific research and a balanced combination of national and international state-building and law-making principles. a synergistic approach made it possible to analyze the legal anti-discrimination policy in the light of pandemic threats. a comparative legal method was used, which made it possible to summarize the legal requirements of various states, including most countries of the european union, the united arab emirates, great britain, serbia, bosnia and herzegovina, and colombia, on measures to counteract the spread of the covid-19 pandemic. statistical and information reports of the european union countries, monitoring of the equality representatives of individual countries (serbia, lithuania), analytical data, government decisions and practical cases were used. the method of combining theory and practice made it possible to propose a set of measures to overcome age discrimination in modern conditions of nationhood development. keywords: age discrimination, older persons, pandemic crisis, guarantees of anti-discrimination, social and communicative sphere. summary: 1. introduction. 2. materials and methods. 3. doctrinal provisions of non-discrimination policy by age in socio-communicative sphere. 4. age discrimination during a pandemic threat. 5. legal guarantees needed to counteract human rights violations and guarantees of anti-discrimination age policy. 6. conclusion. 1 lviv district administrative court, ukraine (nataliya.hren@edu.cn.ua). 2 department of theory of law and constitutionalism, іnstitute of law, psychology and innovative education lviv polytechnic national university, ukraine. 3 department of theory of law and constitutionalism, іnstitute of law, psychology and innovative education lviv polytechnic national university, ukraine. 4 department of civil and administrative law, faculty of law, national university of life and environmental sciences of ukraine. 5 institute of law, taras shevchenko national university of kyiv, ukraine. human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 72 1. introduction modern legal reality has a dominant humanistic orientation; the problem of human rights is such that it needs to be addressed not only at the level of international standards, but also at the state law implementation level. human rights – is a social and universal category, derived from human nature itself, its dignity and uniqueness, subordinated through the provided opportunities to enjoy the basic, most important benefits and conditions of safe, free existence of the individual in society. however, human rights can be declarative in nature, without a proper legal policy to ensure them. therefore, we should talk about a set of international and national measures to counteract the devaluation of human rights. equality and dignity are the primary factors that shape such public policy, which in turn protect society from discrimination. it should be understood as unfair or prejudiced treatment of people and groups based on certain characteristics. equalization of persons without personification of personal characteristics of the individual is discrimination that violates the principles of democracy and humanism in society, leads to stigmatization of the individual, is the cause of human anthropological crisis. discrimination is an obstacle for the realization of a set of human rights and freedoms. o.yu. guz (2012, 167) points out that “discrimination is a way of deformation of the subjects legal relations equality or equality of their legal status by changing the interconnection of rights and responsibilities, their security, scope and areas of implementation in order to establish (correct) objectively justified or subjectively motivated parameters of justice and freedom in society”. there is no unified concept of “discrimination” in international legal regulation and scientific practice. all scientific positions according to the essential content, which is positioned in the definition, are divided into three groups: the position advocating the idea of direct violation of human rights and freedoms in certain areas, violation of its legitimate interests, dignity through discriminatory actions; understanding of discrimination as an illegitimate unjustified distinction on any grounds; a combination of the two above mentioned positions. such a position is also represented in normative international standards. in total, there are four international documents that contain the definition of discrimination. art. 1 of the convention on the elimination of all forms of discrimination against women (united nations, 1979) stipulates that discrimination against women is any distinction, exclusion or restriction made on the basis of sex that has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. art. 1 of the international convention on the elimination of all forms of racial discrimination (united nations, 1965), which stipulates that the term “racial discrimination” means any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 73 in addition to these key ones, international labor organization (1958) discrimination (employment and occupation) convention, 1958 (no. 111) states: for the purpose of this convention the term “discrimination” includes: (a) any distinction, exclusion or preference made on the basis of race, color, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. according to the unesco (1966) convention against discrimination in education, for the purposes of this convention, the term “discrimination” includes any distinction, exclusion, limitation or preference which, being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education. the three mentioned, with the exception of the ilo convention, find discrimination based on “purpose or effect”. it can be concluded that “purpose” contains the meaning of “intention”. ilo convention 111 refers only to “effect”, omitting the concept of “purpose”. using the word “or” instead of “and” indicates that “purpose” can be overridden by “effects.” because the concept of purpose contains the meaning of intent, it is difficult to define and prove the subjective intent necessary to establish a discriminatory act. therefore, discriminatory intent is not a necessary element of discrimination. the emphasis on the “effect” of the policy, rather than the intention, means that neutral measures will be considered “discriminatory” if, in fact, they negatively affect a group of society that is dedicated to protection. a thorough definition of the studied concept was developed by the swiss institute of comparative law (kys & sheremet, 2007). according to it, discrimination is a social event or situation characterized by the presence of distinctions, exceptions, restrictions or advantages based on arbitrary classification of individuals, their groups or categories, based on race, color, sex, language, religion, political or other beliefs, national or social origin, economic status, birth or other circumstances, natural or social characteristics, not related to personal abilities or merits or to specific human behavior, as well as if a certain person, group or category of persons is subject to negative attitude (in the sense that it is perceived as negative) caused by any form of behavior (including inaction) of public authorities or individuals and such that the ultimate purpose is to violate or destroy the recognition, use or exercise of equal human rights and freedoms in political, economic, social, cultural or any other sphere of public life. the necessity of researching the problems of discrimination and improper implementation of human rights is due to the fact that the concept of human rights and legal policy in the field of non-discrimination is not sustainable, it has progressive historical development and is adjusted to urgent social needs and human development. therefore, at the scientific and doctrinal level it is necessary to analyze the variable determinants and debatable manifestations of social relations in the socio-legal space, as a set of legal knowledge about a particular legal phenomenon, designed to improve the legal system. the object of the research is legal relations and social reality in the field of discrimination based on age in the modern conditions of the development of statehood. the aim of the article is a comprehensive analysis of counteracting human rights violations human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 74 through age discrimination in the social sphere by identifying problematic aspects of such discrimination, studying current changes during the pandemic threat and generalizing a set of legal safeguards that can prevent and counteract this through independent legal policy. to achieve the goal of the article, the authors identified the following research questions: to investigate the doctrinal provisions of the policy of non-discrimination by age in the social and communicative sphere; to analyze manifestations of age discrimination during the pandemic threat; propose a system of effective legal guarantees against human rights violations and anti-discrimination age policy. 2. materials and methods global changes in legal reality have led to the rapid progress of scientific achievements. this accelerated the development of science and pointed to the necessity and demand for complex scientific postulates. the legal policy of the state must be based on scientific expertise and sound socio-legal phenomena. however, the uncertainty of the next progressive scientific development indicates the expansion of research potential, because to predict the vector of development of state, economic, social and political phenomena, can only the field of science as a unique phenomenon of existence. confirmation of political and legal management decisions by scientific conclusions makes it possible to avoid mistakes and predict shortcomings and trends of a futurological nature. the methodology creates the main paradigms and sets guidelines for future socio-legal existence. a synergistic approach to the study of declared legal phenomena points to the bifurcation nature of the problem, since threats of a pandemic nature caused uncertainty and unpredictability of the direction and trends of the development of legal regulation in the field of non-discrimination. in particular, a synergistic approach was used in the analysis of part of the problem of age discrimination during the pandemic threat. the research is based on a humanistic approach, which determines the individual value criterion of research methodology. it is manifested through the ideology of anthropocentrism; the state must accept the manifestation of self-realization of the individual to the full, provided that it is not illegal. the use of a complementary approach to research has made it possible to combine scientific schools of different fields of knowledge, provokes the development of social, public and legal reality, pedagogy, education, technology and medical knowledge. the approach of a balanced combination of national and international state-building and law-making principles points to a coherent policy of optimal interaction of national, mental and global standards, while it is impossible to adopt rules of law that would not be accepted by society just because other states, organizations or groups set them as benchmark. the comparative legal method made it possible to summarize the legal requirements of various states, including eu countries regarding age non-discrimination policy and the united arab emirates, the united kingdom, serbia, bosnia and herzegovina, and colombia on measures to counter the spread of the covid-19 pandemic. statistical and legal approach indicates the spread of the problem of age discrimination in the socionataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 75 communicative sphere, and provides an opportunity to generalize the global nature of age discrimination worldwide. monitoring reports, analytical reviews and notes of professional international institutions at the level of un bodies demonstrate the changing determinants of modern society in the context of trends in population aging and other related population and legal trends. the method of individualization indicates the need to overcome the group approach to age, and argues the need for subjective consideration of individual issues without focusing on stereotypical approaches to generations. the system-activity method allows to formulate a set of guarantee measures to counteract human rights violations and prevent discriminatory situations, provides an opportunity to identify current positive foreign practices that are necessary for implementation in individual national legal systems. and finally. the use of the method of combining theory and practice made it possible to propose specific means of improving legal regulation in order to overcome discriminatory policies based on age and to represent proposals for the application of preventive and law enforcement guarantees to achieve an improvement in the situation regarding age discrimination. 3. doctrinal provisions of non-discrimination policy by age in socio-communicative sphere age discrimination can be manifested in general in relation to any cohort of the population, in any sphere of life of society. it is expressed in assessing the possibility of any role performed by a person only on the basis of his/her age. a person may not get a chance to earn a certain status and fulfill a social role as his/her biological age is considered in a society “inappropriate” to a certain status. this absolutization of age stereotypes is an urgent problem of nowadays, since it leads to oppression of human rights (kikinezhdi, 2021; horobets et al., 2021). the peculiarity of discrimination by the age in socio-communicative sphere is that it spreads in the most group of situations among older persons people. this reflects the individual approach we previously highlighted in the methodology. it is necessary to agree with p. voss (voss et al., 2017) that relatively young older persons people are mostly complaining about discrimination by age at work, while people relatively older are more focused on the experience, which they encountered in the medical and social context. the eurobarometer report on discrimination in the eu for 2019 (european commission, 2019) shows that respondents perceive discrimination that occurs not only in the employment context, but also in public places (23%), including cafes, restaurants, bars and nightclubs (8%), shops or banks (7%), health care (6%), or school or university staff (6%), 4% of respondents found discrimination in buying or renting an apartment or house and 4% also reported discrimination or harassment by social workers. statistical methodology helps to reveal the practical aspect of the problem. thus, we can state that there are a wide range of problematic issues regarding age discrimination outside the workplace. human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 76 n. savikko and others (savikko et al., 2007) argued that age discrimination increases social isolation and loneliness in three main ways. firstly, it can lead to feelings of unwillingness, betrayal and social rejection, which can lead to social exclusion. secondly, as a factor of “self-fulfilling prophecy,” older people can adopt ageist stereotypes — for example, that old age is a time of social isolation and low social participation — and then act accordingly, towards departure from society. thirdly, old social laws, norms, and practices, such as mandatory retirement or constructive features of living environment (e.g., inaccessibility of transportation, humpy sidewalks, lack of elevators), act as barriers for older people's participation in social activities that lead to social isolation and loneliness. age discrimination can lead to an anthropological crisis of personality as a person's inability to adapt to external conditions. the previously declared individualization in approaches should become the methodological basis of legal regulation. researchers from many countries state that the crisis is rising. in particular, scientific research in countries such as norway and sweden, has shown that age discrimination can lead to negative feelings such as futility, powerlessness and low self-esteem. this study develops and approves a scale for monitoring age discrimination in the workplace (furunes & mykletun, 2010). according to the analysis of the situation in poland, experts state that ageism can be a chronic stress factor, which leads to both deteriorating of physical health and reduced activity in healthy behavior (nelson, 2016). the problem is that prevention requires not only stereotypes and prejudices, but very real situations of discrimination. analysis of studies by a number of foreign experts allows us to identify areas of social activity and communication where older people experience discrimination. • sphere of public mobility: v. klusmann (2018) points out that infrastructure constraints lead to reduced mobility of older people due to the lack of infrastructure in public transport or the lack of consideration of the needs of older people in urban planning. please note that the problem is significant for all european countries, but the provision of social age mobility depends on the national policy of a separate state and its attention to this issue. the evolution of the social participation of the older persons shows two distinct patterns. according to experts, the domain “social participation” for all countries grew at the same pace until 2012, then in some, the growth continued in the following years (austria, belgium, cyprus, france, luxembourg, malta, denmark, finland, the netherlands and sweden), and in others stagnation or a slight decrease (bulgaria, croatia, greece, hungary, italy, poland, romania, slovakia, slovenia, spain, czech republic, estonia, ireland, germany, latvia, lithuania and portugal) (unece, 2019). • information sphere: e. loos and l. ivan (2018) argue that the older persons people are also underrepresented in the media, and they are portrayed very selectively, focusing on the extreme cases of weak and dependent older persons people or highly effective, wise and nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 77 successful “golden people” (mounk, 2020). l.a. zebrowitz and j.m. montepare (2000) illustrate the underrepresentation of older people in the media. only 1.5% of television characters in the united states were older people, and most had minor roles and were often portrayed for comic effect, describing stereotypes of physical, cognitive, and sexual inefficiency. e. kessler's (kessler et al., 2004) analysis of prime-time television series in germany found that only 8.5% of the characters were of older age. • finance and insurance: in particular acierno (acierno et al., 2010), has shown that in the financial context, older people are at greater risk of fraud and financial abuse, or denied access to credit, startup financing or insurance options due to their age. a report from the uk's financial conduct authority stated that older people are most likely to fall victim to age discrimination in financial services precisely because of age rather than gender or race. it can occur as a risk factor in the pricing of financial products and therefore financial institutions may refuse to provide products for certain age groups (tykhonova et al., 2019). for example, because insurance risks are not evenly distributed across age groups, older age limits are set for most new travel insurance, policies, mortgages and private health insurance premiums are higher for older people (hejny, 2016). financial and insurance providers often argue that age is an appropriate risk assessment factor for the provision of a particular banking or insurance product and that, as a result, access to such products should be either prohibited, minimized or provided at a much higher cost depending on the applicant's age. eu member states have responded very differently to this challenge. some group of eu member states which provide that for insurance should be provided complete exclusion of the banking industry, whose services are based on risk calculations and as such have no protection of the person against differential treatment based on age (slovenia). some eu member states apply the generally accepted normative principle of age discrimination, i.e. any differences in treatment based on age must be justified and proportionate (bulgaria). in other eu member states, strengthening protection by regulating the sector, in addition to the usual test of justification and proportionality, additional exceptions can be defined only in this area (hungary). there is a growing number of eu member states that are taking even more proactive measures to reduce the potential for age discrimination, requiring financial and insurance providers to demonstrate a test for the reasonableness of the exclusion (ireland, portugal and germany) or to fully justify the legitimacy of the exclusion through the prima facie test of proportionality (czech republic) (european commission,2020). • and even the legal sphere. s.t. kwong see and others (kwong see et al., 2001) presented an extended analysis, which argues that the testimony of older people is less valued than the testimony of young people in legal proceedings. human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 78 we should add that in our opinion not all spheres are reflected in researches of scientists. in particular, discrimination in advertising is intensifying. we will use the comparative legal methodology to represent this thesis. the equality ombudsman of the republic of lithuania (2020) considered a complaint about advertising openly ridiculing the older persons. visually, the ad contains the slogan: “a little left.” the company motivates that with such a phrase it wanted to indicate that the old portal has been replaced by a new one. the commissioner pointed out that it was not clearly understood what was being advertised in the ad; experts noted that it contained ambiguities, hints of old age, it was shown that older people are more lethargic, pessimistic, attentive, aware of the inevitable end of life and have nothing to enjoy in life. european national legislation differs over the possibility of providing a reference to the prohibition of discrimination. by using the comparative legal method, we can group the peculiarities of the legal regulation of a number of countries of the world in the researched area. some eu member states have special national anti-discrimination laws that explicitly prohibit direct age discrimination in the social sphere (belgium, bulgaria, croatia, the czech republic, finland, france, germany, ireland, latvia, luxembourg, romania, slovakia, slovenia and sweden); in education (bulgaria, croatia, czech republic, finland, france, germany, lithuania, luxembourg, romania, slovakia, slovenia and sweden), housing (bulgaria, croatia, czech republic, finland, france, germany, lithuania, luxembourg, romania, slovakia, slovenia and sweden); on access to goods and services (belgium, bulgaria, croatia, the czech republic, finland, france, germany, greece, ireland, lithuania, luxembourg, romania, slovenia and sweden). however, most eu member states follow the model of partial protection, which is due to the lack of clear legislation, where protection is provided by constitutional or international law, national domestic administrative law (cyprus, article 28 of the constitution; estonia, article 12 of the constitution; italy, article 3 of the constitution; malta, article 45 of the constitution; portugal, article 13 (2) of the constitution). there are only two eu member states (greece and poland) that do not provide explicit or implicit protection against direct discrimination on the grounds of age outside the labor market. 4. age discrimination during a pandemic threat the pandemic crisis has intensified age discrimination in social activities and communication. it caused the uncertainty of legal regulation, so we will use a synergistic research methodology to study changes in legal regulation in a crisis situation. because the older persons is at risk of increased mortality from covid-19, there are regulatory guidelines, and sometimes even legal requirements to isolate them at home. this leads to differences in attitudes towards people. for example, in ukraine, the resolution of the cabinet of ministers (2020) “on prevention of the spread of acute respiratory disease covid-19 caused by sars-cov-2 coronavirus” required self-isolation of persons over 60 years old. the problem is not only discrimination of the right to move, but also of the ability to communicate and engage in social activity. even before the pandemic, reports nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 79 showed that many older people were already more socially isolated and lonelier than the rest of the population (britchenko et al., 2018). numerous studies and reviews have shown that social isolation and loneliness have a serious impact on the mortality of older people, on their physical health and functioning (e.g., heart diseases, diabetes, mobility, daily activities) and on their mental health (e.g., depression, anxiety and decreased cognitive abilities) (social isolation…, 2020). coronavirus control measures, including containment, physical distancing, and restriction of movement and social gatherings, have increased the risk of social isolation and loneliness (courtin & knapp,2017). protecting the older persons from the effects of covid-19 through social distance, creates the potential for social isolation and loneliness, which can negatively affect the mental and physical health of the older persons. during the pandemic, adults become increasingly separated and socially isolated, especially older adults who are geographically distant from their family members. many older people who rely on social contacts from community centers and places of worship also experience significant disruptions in their social network and relationships (armitage & nellums, 2020). chronological age was also used to determine the measures of physical isolation in different countries. for example, in the uk, people over the age of 70 have been instructed on the legal requirement of 4 months of self-isolation (paton, 2020); in bosnia and herzegovina, the older persons were not allowed to leave their homes for several weeks during the outbreaks (cerimovic et al., 2020); and in colombia (so et al., 2020) and serbia (jackson, 2020) quarantine measures targeted only the older persons people. strategies for lifting quarantine in many countries also differed in chronological age. for example, in the united arab emirates, people over the age of 60 were not allowed into shopping malls or restaurants after they reopened after a period of isolation. similarly, in the philippines, people over the age of 60 were prohibited from using the four manila subway rail systems after they have resumed to work for others (subingsubing, 2020). the issue of such normative human rights violations has repeatedly been a matter for the constitutional jurisdiction of nation states, but we do not yet know of any cases that would clearly indicate human rights violations. for example, the constitutional court of serbia (2020) ruled no. iuo 45/2020 of 28.10.2020, which determined that certain articles of the decree on measures during the state of emergency and the decree on misdemeanors for violation of the order of the minister of internal affairs on restrictions and prohibitions of movement of persons on the territory during its operation were not adopted in accordance with constitution and ratified international treaty. however, in the part concerning the constitutionality and legality of certain provisions of these acts in connection with the ban on the movement of persons over 65 or 70 years old, the constitutional court suspended the procedure. the use of chronological age as the only criterion for measures of physical isolation and prolongation of forced deprivation of the right to move is discriminatory, as it is not taken into account for the very diverse opportunities and needs of the older persons. such human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 80 measures may increase the risks of social exclusion and loneliness, limit the opportunities for older people to self-care and challenge the health and social care system's response to existing medical and social needs of older people, which may ultimately have detrimental effects on health and the well-being of the older persons. it should be noted that the issues of counteracting isolation are also typical for minors. in serbia, the equality commissioner (2020) stated in a 2020 report that he had been approached en masse by parents of children with autism about measures to restrict movement during the state of emergency. however, in this case, we should talk about indirect discrimination on the grounds of health rather than age discrimination. the pandemic crisis has exacerbated the problem of discrimination against older people and exacerbated the intergenerational crisis. media research shows a current trend, with a quarter of tweets “downplaying the importance of covid-19 because it was more deadly among the older persons, and 14% with offensive content or jokes about the older generation” (jimenez-sotomayor et al., 2020). news headlines were based on statements such as: “death from coronavirus so far experience mostly older persons men” (skipper & rose, 2020). 5. legal guarantees needed to counteract human rights violations and guarantees of anti-discrimination age policy examination of exclusively problematic issues does not provide a comprehensive solution to the problem, for which it is appropriate to apply the method of combining theory and practice. so in the framework of this study it is necessary to address the issue of preventive and law enforcement safeguards to achieve an improvement in the situation of age discrimination. we suggest the following measures. firstly, the intensification of contact between generations. although the causal role of negative age stereotypes and norms for age discrimination is not yet clear, they certainly serve to stabilize, perpetuate and rationalize ageistic agendas; to justify practices and behaviors that discriminate against older people. thus, challenging age beliefs and norms is an important component of combating age discrimination. generations do not communicate with each other, preferring their own and close age group. a survey of people in 28 european countries showed that people's friendships are limited by age. for example, across europe, 80 percent of 15–24-year-old reported no friends over the age of 70 and 70% of 75+ people reported no friends beneath the age of 30 (swift et al., 2018). changing age stereotypes and norms is not easy, given their lifelong interiorization and the fact that they are almost never reflected. research shows that age stereotypes and norms are usually quite persistent, similar to traits. however, age stereotypes can be changed by addressing them directly or indirectly. providing information, arguments, and counterexamples can help falsify stereotypes or demonstrate their unsuitability for certain people (beyer et al., 2019). studies show that experiencing positive contact between members of different age groups leads to positive intergroup attitudes and relationships (levchenko et al., 2021). nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 81 positive personal relationships, especially friendly with members of other groups, are important determinants of reducing prejudice between different groups. thus, the degree and type of contact are relevant indicators of exclusion and discrimination of different age groups in a given society (schneider, 2004). social contact between groups is a common strategy for overcoming intergroup conflicts, and special programs to counteract age discrimination have been built around the idea of intergroup contacts between generations (del carmen requena et al., 2018). in general, it is important to: (a) raise awareness of age discrimination, (b) challenge age-discriminatory norms and stereotypes, (c) change discriminatory institutional and social practices and rules. a recent meta-analysis showed that combined activities with education and intergenerational contacts have been most effective in changing the central motivational essences of attitudes / assessments, expectations and knowledge as central levers to reduce age discrimination (burnes et al., 2019). stimulation of the situations that encourage intergroup collaboration has been carefully tested in practice with different racial and ethnic groups, people with disabilities and mental health (pettigrew & tropp, 2008). scientists and experts are convinced that it should also work in the concept of age differences between groups. state anti-discrimination campaigns aimed at raising the level of legal knowledge of the public, raising the level of legal awareness and legal culture. they consist of purposeful attempts to inform or influence the behavior of a large audience over a period of time through an organized set of communication activities and contain a series of delivered indirect messages through several channels for the production of non-commercial products and benefits for individuals and society. educational programs that raise awareness of the mechanisms of prejudice and intolerance, their impact on discrimination and oppression; and promote understanding of diversity and encourage tolerance; activities of civil society that condemn discrimination and prejudice, combat hate crimes and hate speech, assist victims of discrimination or promote changes in legislation. educational activities recognize the need to develop a tolerant and non-discriminatory attitude in each person to create a learning environment that recognizes the benefits of diversity, rather than ignoring it. as part of this development, those who work with children or young people, as well as children and young people themselves, need to be aware of their own and others' discriminatory behavior. for example, educational activities in the context of raising awareness of human rights can help participants develop understanding and compassion, on the one hand, and resilience and self-confidence, on the other, so that people can avoid, prevent or combat discrimination. intercultural learning is a process of learning about diversity and is a central approach in european youth work. in the council of europe's youth field, intercultural learning is presented as “a process of social education aimed at promoting positive relations between people and groups with different cultural backgrounds” (ramberg, 2009), which promotes mutual respect and solidarity. human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 82 it is important to involve community leaders, political and opinion leaders, the media and the general public to increase visibility of the problem, change perceptions of those responsible and mobilize the public, all this to create an environment that facilitate the changes in individual behavior. campaigns can offer promising strategies to combat discrimination and age stereotypes. even if campaigns have only a small effect, with sufficient coverage and public penetration, they can still lead to significant changes. systematics and targeted audience, in our opinion, are the main criteria for the effectiveness of such a campaign. the u.s. centers for disease control and prevention has experimentally proven that anti-tobacco advertising must air for at least six months to influence awareness, 12 to 18 months to influence attitudes, and 18 to 24 months to influence behavior (schar et al., 2006). therefore, one-time calls or actions will not have the desired effect. only a state campaign to intensify the problem, raise it at the national level, demonstrate the problematic aspects can bring the desired results over time. increased attention to human rights violations of civil society institutions. the use of this guarantee has been proven by the empirical experience of a number of leading institutions. five organizations in canada, colombia, kenya, india and the united kingdom founded helpage international in 1983 to build a strong network to support older people. this year, current organization has 158 members and offices in 86 countries and is now a global network, it is a truly international movement for change. the main goal is to create a fairer world for older people so that they can live a safe, healthy and dignified life (global network, 2021). in europe, in particular, such a movement is represented by the croatian red cross society in valpovo; czech republic zivot 90; nadace krása pomoci foundation; denmark is represented by two organizations: globale seniorer and daneage; finland “valli”; germany helpage deutschland; ireland age action ireland clg; italy helpage italia onlus; malta caritas; netherlands “world granny”, “dorcas”, spain “helpage international españa”; sweden pensionärernas riksorganisation; switzerland kwa wazee ; united kingdom age international. ensuring the right to education and intensifying the digitalization of the older persons. in order to prevent discrimination against the older persons in the field of culture and education, especially guaranteed and ensured the rights of these persons to: 1) realization of their potential in the field of literary, artistic, scientific and technical creativity; 2) free access to cultural values, objects of material and spiritual culture and cultural services; 3) equal conditions of access to education (including professional), training and obtaining documents on education in educational institutions of all categories. educational programs should include the ability to improve access to technical data. the rapid development of new digital technologies is constantly changing our societies and the world in which we live. for most people, including the older persons, this means embracing technology as a core part of everyday life and constantly adapting to integrate nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 83 new digital technologies into everyday life and the living environment. technological advances and great political and social efforts are needed for people of all ages, genders, cultures, socio-economic backgrounds and geographical locations to use these benefits and positives. policies and solutions that enable older persons to participate equally in the digitalization of the world, to make digital technologies more available, approachable and open to people of all ages, recognizing the heterogeneity and diversity of needs and interests of older people. according to the findings of the european union survey on fundamental rights (2020), it was shown that only one in five respondents at age 75 and older at least occasionally engaged in internet activities, compared to 98% of those at age 16-29. however, a survey conducted by the pew research center in the united states found a general trend towards greater digital integration of older age groups, found that the use of social networks (facebook) has increased significantly among older people. while 21 percent of people born in 1945 or earlier used facebook in 2012, 37 percent used it in 2019. among the baby boomer generation (born between 1946 and 1964), 60 percent of respondents reported using facebook in 2019, compared with 43 percent in 2012 (vogels, 2019). the silver surfer project in luxembourg attracts older persons volunteers who have been specially trained in online security to instruct other older people to use digital technologies safely and securely (lytvyn et al., 2022). as well as promoting digital literacy among older people, it also encourages the active participation of older people in society. they transfer their knowledge to other senior citizens through conferences, for instance during senior citizens events, at senior citizens' clubs or in senior citizens' associations and work as multipliers. this promotes volunteering among older people and encourages lifelong learning, as older people receive basic training, which is then complemented by regular additional training on specific topics; it supports the active participation of older people in society and values their contribution and competence. availability of design and interface of digital technologies and services. physical and cognitive disabilities in later life can prevent older people from using digital technologies or lead to their breakdown, even if they have used digital technology regularly before. for example, vision or hearing impairment may be an obstacle for using and benefiting from information and communication technologies. complicating of usage can increase frustration and hinder engagement, if adequate support is lacking. cognitive impairments, such as dementia, can make it difficult for older people to navigate the digital environment or quickly become aware of changing technologies. if individual interventions take into account these circumstances and needs, for example in the case of dementia, digital skills can be learned and benefit from, for example, providing social connections with family members through video calls or stimulating memory training through virtual real experiences. unfriendly digital design or irrelevance for the older persons can be a barrier to use. interface design often does not meet the needs of different users and may not meet the criteria of accessibility and inclusiveness. it can negatively affect the older persons, especially those with physical or cognitive impairments. design processes often take place without the involvement of all end users, creating preconceived judgments about who is expected human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 84 to use a particular digital technology. when digital technology is designed specifically for the older persons or people with a disability, it often reflects the implicit stereotypes of designers about 'older' users. digital technology design for older people is often overly focused on health care technologies and rarely focused on digital leisure technology that reflects the health paradigm and social assumptions about the needs of older people. we will positively assess the experience and legislation of the european union in this direction. the european web accessibility directive was adopted by eu member states in 2016 to make all public sector organizations more accessible on the internet. the directive requires public websites and mobile applications of sectoral authorities to meet specific technical accessibility standards, including a statement of accessibility for each website and a mobile application, a feedback mechanism that allows users to report accessibility issues or request information published in the unavailable format and regular monitoring and reporting of public sector websites and programs (european parliament, & council, 2016). the european accessibility act 2019 reflects the obligations of the web accessibility directive and was designed to facilitate trade of affordable goods and services between eu member states. it covers everyday digital products and services with potentially different availability requirements in eu countries, such as computers, atms, ticket and registration machines, smartphones, banking services, e-books, and e-commerce. in order to avoid and minimize social exclusion from important everyday technologies, countries need to ensure the possibility of using non-digital services, despite the constant development of technological functions or interfaces ((european parliament, & council, 2019). the experience of individual countries in improving accessibility deserves to be implemented. the national digital strategy for ireland has included an awareness and motivation campaign outlining some of the key benefits of online communication for older people through short video clips covering social network, email or video calling sites, and online transactions (department of communications, energy and natural resources, 2013). slovenia, spain and romania have identified the need to provide sufficient resources and tools to help older people learn to use digital technologies. in romania, public libraries have started providing free e-skills training to the older persons and other “hard-to-reach” citizens as part of the “biblionet” program. israel's national digital program highlights ways to use technology to reduce economic inequality and social inequality, for example, through distance learning in rural or isolated areas, providing greater opportunities for older people (unece, 2021). financial services are provided online more often, offering the bank's customers the convenience of accessing their bank accounts and making financial transfers from home. according to 2020 data in the eu 27, 57% of people in the age group from 45 to 54 used the internet for online banking, compared to less than a third (31%) of people aged from 65 to 74 years. to support senior customers in using digital technology services, financial institutions can provide targeted support services. this progressive practice can be encouraged through government action. in canada, the new code of conduct, nataliya hren; mykhailo kelman; maiia pyvovar; anna koval; yaroslav melnyk the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 85 which entered into force in 2021, contains the basic principles that should guide banks in providing banking services to meet the needs of older people (national research council canada, 2013). to encourage older people to start using digital banking, a mobile banking car with facilities was developed and visited up to 40 destinations every two weeks, providing advice and demonstrating how older people can use mobile phones (and other digital devices) to provide online banking services. such a policy consists of the proper protection of human rights, which is the primary responsibility of the state (kovalchuk et al., 2021) and civil society, institutional bodies of various directions. 6. conclusion human rights require a comprehensive legal policy to combat discrimination, ensure equality and human dignity. discrimination of human rights manifests itself through an illegitimate and unjustified infringement or oppression, difference, exclusion, restriction or advantage that denies or reduces the equal exercise of rights based on the physical or biological characteristics of a person. based on statistical information, it has been proven that age discrimination is one of the most common types of discrimination in modern legal reality, as it affects all age groups in any country. the peculiarity of age discrimination in the social and communicative sphere is that it extends to the older persons in the predominant group of situations. it is generalized that age discrimination can lead to anthropological crisis of personality as a person's inability to adapt to external conditions. the spheres of social activity and communication are grouped, where older persons people experience the greatest manifestations of discrimination: the sphere of public mobility; information sphere; financial and insurance sphere; legal sphere; advertising sphere. the pandemic crisis has exacerbated age discrimination in social activities and communication, as national coronavirus control measures, including containment, physical distancing, and restrictions of movement and social gatherings, have increased the risk of social exclusion and loneliness. the chronological age was also used to determine the measures of physical isolation in different countries, including the united arab emirates, great britain, serbia, bosnia and herzegovina, colombia, ukraine. the use of chronological age as the only criterion for measures of physical isolation and prolongation of forced deprivation of the right to move is discriminatory, as it does not take into account the very diverse opportunities and needs of the older persons. such measures can increase the risks of social isolation and loneliness, limit the ability of older people to self-care, and challenge the health and social care system to respond to the existing medical and social needs of older people. in general, we can offer the following set of age discrimination counteraction in the social and communicative sphere: • measures aimed at intensifying intergenerational contact in the context of changing age stereotypes and customary norms by encouraging individual social contacts between groups; • state anti-discrimination campaigns to raise public awareness, raise legal awareness and legal culture, promote understanding of diversity and promote tolerance; civil human rights and current discriminatory manifestations the age of human rights journal, 19 (december 2022) pp. 71-91 issn: 2340-9592 doi: 10.17561/tahrj.v19.7124 86 society activities that condemn discrimination and prejudice, and counter hate crimes; • involve community leaders, political and opinion leaders, the media and the general public to increase the visibility of the problem, change perceptions of who is responsible for the problem and mobilize the public; • intensification of attention to human rights violations of civil society institutions, in particular specialized public organizations; • ensuring the rights of the older persons in the field of culture and education, especially the rights of these persons are guaranteed and provided to: realize their potential in the field of literary, artistic, scientific and technical creativity; free access to cultural values, objects of material and spiritual culture and cultural services; equal conditions of access to education. • measures aimed at intensifying the digitalization of the older persons, including a policy of equal opportunities for older people, equal participation in the digitalization of the world, making digital technologies more available, approachable and open to people of all ages, recognizing the heterogeneity and diversity of needs and interests. • measures to ensure the availability of design and interface of digital technologies and services. • a set of targeted support services in the sectors of the national economy (including financial). however, it is important to understand that manifestations of age discrimination have an individual character and are determined by additional circumstances, such as the characteristics of a person's age group (children, youth, persons of working age, the older persons), their gender, ethnic and racial affiliation, nationality, and other factors. therefore, the perspectives of future research would be appropriate to recognize the combination of age and other group discrimination as a multiple form that occurs most often. therefore, the complexity of the legal policy of prevention and 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(2008). how does intergroup contact reduce prejudice? meta-analytic tests of three mediators. european journal of social psychology, 38(6),922-934. ramberg, i. (2009). equipe claves. intercultural learning in european youth work: which ways forward? https://www.coe.int/en/web/youth/-/intercultural-learningin-european-youth-work-which-ways-forwardsavikko, n, routasalo, p, tilvis, r.s., strandberg, t.e., & pitkala, k.h. (2007). predictors and subjective causes of loneliness in an aged population. archives of gerontology and geriatrics, 41(3), 223-233. schar, e., gutierrez, k., murphy-hoefer, r., & nelson, d.e. (2006). tobacco use prevention media campaigns: lessons learned from youth in nine countries. https://stacks.cdc.gov/view/cdc/11400 schneider, d.j. (2004). the psychology of stereotyping. new york: guilford press. skipper, a., & rose, d. (2020). #boomerremover: covid-19, ageism, and the intergenerational twitter response. innovation in aging, 4(1), 931. so, l., tanfani, j., cocks, t., & kelly, t. (2020, march 20). coronavirus spreads fear, isolation, death to older persons worldwide. https://www.reuters.com/article/ us-health-coronavirus-older persons-insight/coronavirus-spreads-fearisolationdeath-to-older persons-worldwide-iduskbn2172n8 social isolation and loneliness in older adults: opportunities for the health care system. (2020). https://nap.nationalacademies.org/catalog/25663/social-isolation-and-loneliness -in-older-adults-opportunities-for-the subingsubing, k. (2020). lrt, mrt ban for older persons, moms-to-be under gcq. https://newsinfo.inquirer.net/1271069/lrtmrt-ban-for-older persons-moms-to-beunder-gcq swift, h.j., abrams, d., marques, s., vauclair, cm., bratt, c., lima, ml. 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https://www.pewresearch.org/fact-tank/2019/09/09/us-generations-technology-use human rights and current discriminatory manifestations (on the example of age discrimination in abstract 1. introduction 2. materials and methods 3. doctrinal provisions of non-discrimination policy by age in socio-communicative sphere 4. age discrimination during a pandemic threat 5. legal guarantees needed to counteract human rights violations and guarantees of anti-discrimin 6. conclusion references disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 1 disability and the elderly in their freedom of interaction with the spanish administration vanesa sánchez ballesteros1 abstract: disability and elderly people are considered special groups due to their high degree of vulnerability, and their welfare must be supported by public measures that reinforce the guarantees of their rights and freedoms. although new technologies open up a world of possibilities in all areas of life, their use can hinder, in some cases, the development of the rights of these groups because their practice is a complex novelty, especially in the area of communication between citizens and the public administration. therefore, this study focuses on the analysis of the impact of icts on the right to freedom of access of persons with disabilities and the elderly. keywords: disability, freedom, old age, law, digital divide, icts, public administration and elderly people. summary: 1. introduction. 2. methodology. 3. the right to liberty of elderly and people with disability in their relationship with the administration: historical developments. 4. public administration in the use of new rtechnologies. 4.1. e-government: principles, characteristics and objectives. 4.2. legal regime for citizens’ relations with the public administration through icts in spain. 4.3. inconveniences in the exercise of the rights of elderly and people with disability through e-government. 4.4. the digital divide among the elderly. 5. e-government and elderly and people with disability in a globalised world. 6. conclusions and proposals for improvement. 1. introduction information and communication technologies (itcs) have transformed society by bringing a diversity of possibilities in all contexts of our lives (social, health, economic, etc.). they have opened up a wide range of rights for european citizens in their communications with the public administration since the adoption of directive 2006/123/ ec of the european parliament and of the council of 12 december 20062 on services in the internal market. however, this new implementation is not without its problems, and in order for it to be a reality of improvement and to maintain the right to access it, citizens must have the appropriate knowledge in its use, as well as the technical infrastructure that makes communication and access possible. it is essential that the situation of all sectors of the population, especially the most vulnerable, be taken into account in the use and exploitation of icts. the need for this study is urgent in view of the development and accelerated implementation of icts in public administration in recent years, and even more so during the covid-19 pandemic, where they have been inexcusably imposed in all administrative spheres 1 lecturer in civil law at the university of jaén (vballest@ujaen.es). orcid: 0000-0002-4697-7891. 2 europe. directive 2006/123/ec of the european parliament and of the council of 12 december 2006 on services in the internal market (published in ojeu of 27 december). http://10.17561/tahrj.v20.7631 https://orcid.org/0000-0002-4697-7891 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 2 without exception. there is no doubt about the notorious digital divide that is emerging among the elderly and people with disability, as icts require the unavoidable existence of technological and computer resources to facilitate their use. all of the above is becoming an obstacle in the processing of situations which, a priori, were simple due to their analogue nature and which are now complex due to their need to be connected to the network, among others. this is why the digital divide that occurs in people with disabilities or the elderly is undermining their rights and freedoms and, in some cases, can even lead to marginalisation. in spain, law 39/2015, of 1 october, on the common administrative procedure of public administrations (hereinafter law 39/2015), aims, among others, to provide a telematic channel justified through the principles of effectiveness and efficiency for citizens and companies, providing them with greater guarantees and allowing its use by individuals on a voluntary basis, respecting their freedom. however, following the covid-19 pandemic, access through this means has become general, indirectly forcing all citizens to use it as the only means of access. in view of this situation, we propose to analyse the implementation of telematic procedures in spain and the consequences for citizens’ rights in their telematic relations with the public administration; the harm caused by such requirements; and, finally, the proposals for improvement that can be offered to citizens, especially the elderly, to mitigate the effects of the digital divide. 2. methodology this research work is based on the study of the rights of elderly and people with disability, especially the right to freedom in the exercise of their communication and access to the public administration through icts. firstly, we will study the right of the person and their freedom to relate to others in the way that best suits their needs and wishes. secondly, we will study the emergence of e-government as a consequence of good governance3, its legal regime and how its establishment has been justified as a more efficient and convenient means of communication and access to the administration. this will be followed by an analysis of the advantages and disadvantages of its use and how it affects both positively and negatively the elderly and people with disability. it will also provide an overview of the situation of icts use in e-governance. and to conclude this work, an analysis will be made by way of conclusions, incorporating a list of proposals for improvement with the aim of providing practical and simple solutions to eliminate the digital divide. 3 “the concept of governance refers to all the government processes, institutions, procedures and practices by which the affairs of society as a whole are decided and regulated. good governance adds a normative or evaluative dimension to the process of governing. from a human rights perspective, governance refers to the process by which public institutions conduct public affairs, manage common resources and ensure the realisation of human rights”. united nations website. on good governance and human rights. available at: https://www.ohchr.org/es/ good-governance/about-good-governance (accessed 28 april 2022). http://10.17561/tahrj.v20.7631 https://www.ohchr.org/es/good-governance/about-good-governance https://www.ohchr.org/es/good-governance/about-good-governance vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 3 3. the right to liberty of elderly and people with disability in their relationship with the administration: historical developments freedom and good governance are an inexcusable binomial in a social and democratic state governed by the rule of law (article 1 of the spanish constitution). for this reason, both the recognition of freedom and that of good governance have been introduced as necessary in society through international instruments for decades, and are now of great legal relevance. given the above premises, the freedom of elderly and people with disability must be analysed clearly from a conceptual point of view, understanding this right in its literal sense as an inalienable attribute of the person which grants him/her the independence to do or decide whatever he/she deems convenient, without distinction of any social circumstance, as it is a condition of the human being, which, as mentioned above, is inalienable. from a legal point of view, freedom is understood as the faculty or power to act according to one’s own criteria within the framework of the law4 (fernández, 2018: 267-294), whether it is exercising one’s preferences or wandering. the doctrine5 (lasarte, 2019: 23), emphasising from the legal point of view, warns that “the existence of the rule of law is evidenced in the recognition of the freedom of citizens, in terms of the free will that is an inherent attribute of the human person and that every legal system must accept as a presupposition”, thus making clear the concept of freedom as the capacity of all human beings to choose according to their preferences, will and desire as a quality of the human being. public administration is the set of actions and procedures of a state as a consequence of the management of services aimed at protecting the general interests of its citizens, and these actions must be established by law (supreme court ruling of 18 march 1993). in relation to the spanish state, as an example of the use of e-government and from its most supreme legal sphere according to the spanish constitution, article 103.1, public administration is understood as the set of hierarchically organised bodies that objectively serve the general interest. it recognises as objectives those established by law and the rest of the legal system, according to article 3.3 of law 40/2015, of 1 october, on the legal regime of the public sector6 (hereinafter law 40/2015). this law sets out the general operating principles in its explanatory memorandum, among which the following stand out: efficiency, coordination, decentralisation, hierarchy, submission to the law and to the law. throughout the text, it insists on the effectiveness and efficiency of its management towards those who are administered. similarly, law 39/2015, of 1 october, on the common administrative procedure of public administrations7, refers in 4 fernández suarez, j. a. (2018). el derecho de libertad en eduardo garcía máynez. revista de posgrado en derecho de la unam. nueva época nº 8, pp. 267-294. 5 lasarte, c. (2019). “compendio de derechos de la persona y el patrimonio”. 9ª edición. dykinson. madrid, p. 23 6 spain. law 40/2015, of 1 october, on the legal regime of the public sector (published in boe of 2 october). 7 spain. law 39/2015, of 1 october, on the common administrative procedure for public administrations (published in boe of 2 october). http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 4 its text to the effectiveness and efficiency in the competences of these towards the public administration. in its explanatory memorandum, it highlights the need for e-government to better serve these principles, saving costs for citizens and companies and reinforcing their guarantees. it also adds that through e-government, transparency obligations can be better fulfilled as it offers agile and up-to-date information to interested parties. having recognised our basic concepts, the right to freedom and public administration, it is their interaction that will determine the meaning of this work. it is inexcusable to begin our legal journey of freedom protection with the universal declaration of human rights (udhr), adopted by the united nations general assembly in resolution 217 a(iii) of 10 december 1948 in paris. this instrument was created with the aim of protecting human rights, especially those harmed by the wars that had been taking place, particularly during the second world war. a pioneering document of international importance in the protection of human rights was drawn up, based on the recognition of human dignity as the basis of the most essential human values such as freedom, justice and peace, as established in its preamble. subsequently, the international covenant on civil and political rights (iccpr), approved by the united nations general assembly in resolution 2200 a (xxi) of 16 december 1966, was adopted, and its preamble is in line with the principles of the united nations charter, defining freedom as the basis for the recognition of human dignity (article 9). following a process of democratisation of the states, freedom is recognised at the european level through the charter of fundamental rights of the european union, approved in 20008. in its preamble, freedom was highlighted as a general situation inherent to every person (a personal right) and was recognised as an inalienable value of the union, the basis and axis of the rights that make up human dignity. although in the beginning it was only considered to be of a moral nature, as a declaration of principles, over time it was incorporated through documents with binding force thanks to the will of the states. with the approval of the treaty of lisbon, after the failed european constitution, article 6.1 of the teu maintains the recognition of the charter, giving it binding legal value. it is in this text that the rights, freedoms and principles of the text are given special recognition on the same level as the treaties in the community context. however, when we speak of rights, in this case that of freedom, their recognition is a constant in all european legal texts and in a significant majority in the rest of the world, and even more so, as already mentioned, on the basis of the international declaration of human rights. 8 europe. the charter of fundamental rights of the european union was proclaimed at the nice european council on 7 december 2000 jointly by the council, the european parliament and the commission and published in the official journal of the european union on 30 march 2010. http://10.17561/tahrj.v20.7631 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 5 as a second part of the binomial good administration, it is important to highlight that the generic concept and a standard of behaviour had already been forged in past decades. this can be seen in the judgement of the european court of justice of 18 october 1989 on the protection of competition in administrative proceedings. this already contains some reference to the good performance of the public administration, arguing the right of defence of any procedure when it may result in an act that is harmful to a person. this becomes a fundamental principle, and the notion of good administration as a generic concept is developed through european jurisprudence9 (ferreiro, 2015: 42-429). however, the obligatory nature of good administration of the states in their internal functioning stemmed from the charter of fundamental rights of the european union as the first identification of a european fundamental right10 (tomás, 2004: 179). its motivation, the guarantee of protection of the fundamental rights of citizens through the obligation of the public administration to behave appropriately. it should be added that article 41, the right to good administration, is recognised in the category of fundamental rights. it is essential to highlight this recognition, as it is the subject of this study, which limits the exercise of the public administration in favour of the right to freedom. this recognition was postulated as the first of all national and international legal instruments on human rights11 (ferreiro, 2015: 423-435) where it includes both concepts, freedom-good administration. at this point, and after joining the previous issues, good governance appears in the european context in the approach of icts in its management and communication with citizens. e-government began as a community commitment from the council of europe, with the aim of taking advantage of the possibilities offered by new technologies. the commitment can already be seen in the year 2000, at the lisbon summit12, when it was proposed through the eeurope programme13, to turn the eu into the strongest power of knowledge through internet connection. 9 ferreiro viñuales, s. (2015). el artículo 41 de la carta de los derechos fundamentales de la unión europea: una visión crítica. estudios de deusto, 63 (1), pp. 428-429. 10 “a generic reference to good administration can be found in the declaration of the rights of man and of the citizen, adopted by the french constituent assembly on 26 august 1789”. the declaration states that “society has the right to call every public agent to account for his or her administrative actions”, establishing it as a rule, not as a right. tomás mallén, b. (2004). “el derecho fundamental a una buena administración”. map-inap, madri, pp. 179. 11 ferreiro viñuales, s. (2015). el artículo 41 de la carta de los derechos fundamentales de la unión europea: una visión crítica. estudios de deusto, 63 (1), pp. 423-435. 12 european union portal (2000). the lisbon special european council (march 2000): towards a europe of innovation and knowledge. available at: http://publications.europa.eu/resource/cellar/ade37b54-018f-45a6bf48-95ff11598b1f.0005.02/doc_2 (accessed 5 may 2022). 13 “eeurope is a policy initiative aimed at ensuring that future generations in the european union take full advantage of the changes being brought about by the information society. these changes, the most significant since the industrial revolution, are far-reaching and global in scope”. european commission portal. eeurope, an information society for all, initiative. available at: https:// cordis.europa.eu/programme/id/is-eeurope/es (accessed 1 may 2022). http://10.17561/tahrj.v20.7631 http://publications.europa.eu/resource/cellar/ade37b54-018f-45a6-bf48-95ff11598b1f.0005.02/doc_2 http://publications.europa.eu/resource/cellar/ade37b54-018f-45a6-bf48-95ff11598b1f.0005.02/doc_2 https://cordis.europa.eu/programme/id/is-eeurope/es https://cordis.europa.eu/programme/id/is-eeurope/es disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 6 in 2001, the european commission, in its white paper, defined european governance14 as the set of rules, processes and behaviours that affect the exercise of power in europe in terms of accountability, effectiveness, coherence and participation15 (garrido, 2020: 115-140). a few years later, in 2004, the organisation for economic co-operation and development (oecd)16 published a study “egovernment: an imperative”, where” it highlighted the achievements of the implementation of egovernment in relation to the savings generated by egovernment and its efficiency. at the same time, the committee of ministers adopted a recommendation on democratic governance highlighting the benefits of egovernment as a non-technical issue, emphasising that this transformation meant a considerable improvement in public administration service to citizens. a year later, in 2005, the eeurope 2005 plan17 was approved at the seville summit with the objective of creating an electronic environment. on 25 april 2006, the european commission launched the egovernment action plan18, also known as e-goverment or e-government (as part of i2010), setting out a roadmap for the development of egovernment. this marks the start of the eu’s information society through three key pillars: achieving a single european information space, strengthening innovation and investment in the field of icts research and achieving an inclusive information society. an itinerary constituted as an improvement in public services and their quality, seeking efficiency through the use of new technologies as a determining economic factor in a coherent and sustainable way. on 12 december 2006, directive 2006/123/ec was approved with the aim of making it compulsory for member states to facilitate the electronic means necessary for access to procedures related to service and information activities. in 2014, the oecd19 published a document with recommendations for the development of digital government strategies. this document established 12 guidelines 14 the white paper on governance, adopted by the commission on 25 july 2001, published in the official journal of the european union on 12 october 2001. 15 garrido mayol, v. (2020). el principio de buena administración y la gobernanza en la contratación pública. estudios de deusto: revista de la universidad de deusto, 68(2), pp. 115-140. 16 oecd portal. e-government: an imperative. available at: https://www.oecd-ilibrary.org/docserver/ 9789264101197-sum-es.`pdf?expires=1652792058&id=id&accname=guest&checksum=d1af9f18feab bcc48a9264fe4221d354 (accessed 25 april 2022). 17 eeurope plan (2005). an information society for all. available at: https://eur-lex.europa.eu/legal-content/ es/txt/pdf/?uri=celex:52002dc0263&from=es (accessed 25 april 2022). 18 egovernment portal (2006). egovernment action plan. available at: https://administracionelectronica.gob. es/pae_home/pae_estrategias/pae_lineas_ccoperacion/pae_cooperacion_internacional/pae_estrategias_ de_administracion_electronica/pae_ambito_europeo_planes_accion_administracion_electronica.html (accessed 20 april 2022). 19 oecd portal (2014). oecd publishes a document with recommendations for the development of digital government strategies. available at: https://administracionelectronica.gob.es/pae_home/pae_actualidad/ pae_noticias/anio2014/agosto/noticia-2014-08-12-recomendaciones-ocde-estrategias-adigital.html (accessed 12 may 2022). http://10.17561/tahrj.v20.7631 https://www.oecd-ilibrary.org/docserver/9789264101197-sum-es.pdf?expires=1652792058&id=id&accname=guest&checksum=d1af9f18feabbcc48a9264fe4221d354 https://www.oecd-ilibrary.org/docserver/9789264101197-sum-es.pdf?expires=1652792058&id=id&accname=guest&checksum=d1af9f18feabbcc48a9264fe4221d354 https://www.oecd-ilibrary.org/docserver/9789264101197-sum-es.pdf?expires=1652792058&id=id&accname=guest&checksum=d1af9f18feabbcc48a9264fe4221d354 https://eur-lex.europa.eu/legal-content/es/txt/pdf/?uri=celex:52002dc0263&from=es https://eur-lex.europa.eu/legal-content/es/txt/pdf/?uri=celex:52002dc0263&from=es https://administracionelectronica.gob.es/pae_home/pae_estrategias/pae_lineas_ccoperacion/pae_cooperacion_internacional/pae_estrategias_de_administracion_electronica/pae_ambito_europeo_planes_accion_administracion_electronica.html https://administracionelectronica.gob.es/pae_home/pae_estrategias/pae_lineas_ccoperacion/pae_cooperacion_internacional/pae_estrategias_de_administracion_electronica/pae_ambito_europeo_planes_accion_administracion_electronica.html https://administracionelectronica.gob.es/pae_home/pae_estrategias/pae_lineas_ccoperacion/pae_cooperacion_internacional/pae_estrategias_de_administracion_electronica/pae_ambito_europeo_planes_accion_administracion_electronica.html https://administracionelectronica.gob.es/pae_home/pae_actualidad/pae_noticias/anio2014/agosto/noticia-2014-08-12-recomendaciones-ocde-estrategias-adigital.html https://administracionelectronica.gob.es/pae_home/pae_actualidad/pae_noticias/anio2014/agosto/noticia-2014-08-12-recomendaciones-ocde-estrategias-adigital.html vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 7 to be taken into account in the development of digital administration strategies, with the aim of bringing them closer to citizens and companies by making use of new technologies, as they were already widely rooted in society. however, all of the above was only a sample of the large number of international and eu instruments that supported and encouraged the use of electronic media for their unquestionable benefits in the application of good governance. however, we cannot forget that the main objective is the establishment of a new channel that facilitates the efficiency of the administration in the exercise of its competences, as a modern public service20, which helps citizens in their access to the improvement of public services and the general interest. under no circumstances may its use entail a reduction in the rights of any group, nor an obstacle to the exercise of citizens’ rights. with the legal development of both concepts, they are modelled in favour of their efficient convergence, especially in the respect for vulnerable groups, the elderly and people with disability, in the exercise of their rights and the actions of the administration in good governance. the aim is to reconcile the rights and freedoms of citizens with the agile and efficient development of administrative power, placing its actions at the service of the general interest. 4. public administration in the use of new technologies 4.1. e-government: principles, characteristics and objectives from a physical point of view, it is necessary to start from a clear premise in communication, and even more so if we are dealing with a public administration. in order to achieve effective communication, a multitude of key factors must be present and a series of elements must be involved: a sender who sends the specific message; a receiver or individual in charge of receiving that communication; the message, information or data transmitted by the sender so that the content is understood in a fluid and effective manner; a channel through which the message is transmitted; and the code, as a fundamental element for it to be easily intelligible. well, if this is the case, we must bear in mind that, if we change the channel, the internet, we must ensure that all recipients have the capacity to understand the information transmitted, and this is exactly what is happening with the introduction of icts in public administration. in order to introduce any change in the means or channel of communication between citizens, the administration and its effective communication, we must bear in mind that the administration must check that the channel is appropriate. it must also guarantee effective two-way communication between the parties, to all the citizens it serves. this implies digital updating in both directions, administration-citizen, 20 “by public service administrative activity we mean that the administration provides services to citizens in order to guarantee the satisfaction of their needs. the essence of public service...is not the exercise of power, but the provision of services, for which, above all, it is carried out by the administration...”. rebollo puig, m. y vera jurado, d. j. (2019). “modos y medios de la actividad administrativa”. derecho administrativo. tomo iii. madrid. tecnos. pp. 127-133. http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 8 both because they have the appropriate technical resources and, above all, because they are competent in terms of their digital capacity to ensure an effective process. from a legal point of view, e-government is understood as a new technological system based on information and communication through icts, with the aim of achieving an agile public administration, safe for everyone (according to law 39/2015) and reducing institutional expenditure. in order to achieve this, it is essential to check the means or channels used by the recipient to whom it is addressed and according to law 40/2015, for the effectiveness and efficiency of its operation and compliance with the law and the law. likewise, the public administration must ensure that the changes applied do not undermine any fundamental right. special care should be taken in the case of fundamental rights such as the right to freedom, and even more so in the case of people with disabilities or the elderly (especially vulnerable due to lack of economic and technological resources or lack of digital literacy). it is imperative that member states, in the spirit of transforming and updating their management environments, are able to integrate these new communication models in a space accessible to all. it is imperative that the new communication models meet the optimal requirements for their reach to cover all citizens on an equal footing. while it is true that the aim is to move towards the economy and efficiency of communication processes, we must not forget that the tools applied through icts can, depending on the users, lead to a situation of confusion, isolation, dependence and, in some cases, to the violation of some rights. these tools may still not be the most appropriate for vulnerable sectors of the population, and may generate a significant digital divide and harmful consequences. the digital disability divide is understood as exclusion21 (area, 2002: 64) and a barrier to social participation that causes a situation of inequality. this situation is on the rise and has an asymmetrical situation with technological development between the regions of the world, deepening inequality. the lack of access to icts produces deprivation of possibilities directly related to job insecurity, unemployment, and a bias in the distribution of wealth22 (vicente, lópez, 2005: 43-57). we cannot ignore the obvious, that the use of information and communication technology represents a great advance in the optimisation of resources in public management, a saving of resources and an agile operation. but neither should we forget the subjective element of this new communication channel, the citizen and his or her heterogeneous social circumstances. not all citizens have the same technological, economic or digital literacy resources23 (martínez and estévez, 2021: 3). faced with such a diversity of situations, the public administration must foresee the obstacles that 21 area moreira, m. (2002). “igualdad de oportunidades y nuevas tecnologías. un modelo educativo para la alfabetización tecnológica”. revista en educar nº 29, p. 64. 22 vicente cuervo, m. r. y lópez menéndez, a. j. (2005). una aproximación a la brecha digital por discapacidad. el caso de la unión europea. boletín económico de ice, nº 2834, pp. 43-57. 23 first-level digital divide refers to connection data and second-level digital divide refers to knowledge and use of the internet. martínez torán, m. y esteve sendra, c. (2021). “estudio brecha digital y discapacidad: una perspectiva centrada en las personas”. cátedra de brecha digital y diversidad funcional. valencia, pp. 1-26. http://10.17561/tahrj.v20.7631 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 9 arise with the transformation of its e-government based on icts, i.e., the automation of procedures and services as the only means of access. as a relevant experience in this automation process, it is worth highlighting that during the covid-19 health crisis, the use of new technologies as the sole channel of communication in a multitude of procedures with the administration increased exponentially. this new inclusion generated significant dysfunction in the older and population with disability due to a lack of preparation for the change that was occurring at great speed and which, curiously, was introduced as a protective measure to avoid contagion through personal contact. in view of the above, the criterion implemented during the pandemic has been maintained to date in many procedures as the sole means of access to the public administration. a key telematic procedure that has been implemented and has been in place since covid-19 has been the medical appointment procedure via telematic platforms. this system of access has generated, in the elderly and people with disability, an increase in dependence on their relatives and friends. the cause, in most cases, is the lack of resources and/or digital knowledge necessary to carry it out autonomously, generating discomfort, uncertainty and anxiety. the introduction of icts in public administration must take into account a series of basic elements for its effective implementation. in addition to the channel used, as mentioned above, it is essential for users to have the necessary digital literacy in the use of the tools, as well as optimum knowledge of the code used. the analysis of the social groups at which the implementation of new technologies is aimed will favour their effective achievement: age, disability, training, technological and economic resources. it should also be taken into account that the platforms should be simple in order to generate trust and security; an intuitive interface that invites their use; standardisation of portals with single windows for all public administrations from a single platform for carrying out all formalities. it is essential to eliminate barriers that duplicate procedures, records and, thus, uncertainty24 (rodríguez, 2004: 1-23), complexity and lack of knowledge of the use of these new tools. in short, to establish a telematic environment accessible to all and respecting their freedom of choice. consequently, the elements that e-government must have for its correct implementation and taking into account that it is at the public service of all citizens and that, a priori, it is heterogeneous, are: a suitable digital receiver and transmitter connected to an efficient, intuitive and accessible communication channel at the service of all; that the code used is simple to use and provides security for citizens; that the procedures used are flexible, avoiding the imposition of a single means of access, the technological one; that it provides a secure environment that guarantees the protection of citizens’ data; that it is free to use; and finally, that it constitutes a “single window” for intercommunication with the different public administrations, in general terms. 24 rodríguez, g. (2004). gobierno electrónico: hacia la modernización y transparencia de la gestión pública. revista de derecho. universidad del norte, pp. 1-23. http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 10 if e-government with icts meets the minimum standards that enable accessibility for all citizens in their diversity, good governance can be carried out securely and guaranteeing the rights of all25 (gascón, 2021: 80-108). likewise, the appropriate integration of icts will promote a comprehensive cultural and technological change, in accordance with the demands and needs of the citizens it serves. we must not forget that the establishment of new means of communication and access to public administration through new technologies must be inclusive for all, especially the most vulnerable. we must be aware of the technological reality of society so that progress, in this new innovative process of access, meets the intended objective. if this is the case, the citizen will find himself/herself covered by the guarantees of the new instruments of administrative services that improve and protect their lives. without forgetting that the fundamental principle of the use of icts in public administration is to guarantee free access to all citizens through e-government, integrating a two-way, clear, agile and efficient communication, as well as respecting the freedom of citizens in terms of the choice of its use, as established in the explanatory memorandum of law 39/2015. 4.2. legal regime for citizens’ relations with the public administration through icts in spain in view of the issue at hand, it is inexcusable to combine the right to freedom inherent to every person (elderly and people with disability), good governance and e-government as a form of action that promotes and fosters the principles of all administrations. as indicated above, the european charter of human rights already indirectly includes electronic access, and it is therefore imperative that its implementation be carried out within the necessary legal framework. a framework that facilitates the establishment of the technological instruments used to achieve the most important constitutional objectives, which guarantees the freedom of all citizens in conditions of equality, free respect26 and preservation of the integrity of their rights (arenas, 2011: 99). the main challenge in the use of icts in egovernment is the preservation of citizens’ personal rights based on the configuration of good governance27, through the use of new technologies. actions based on the principles of citizens’ freedom, efficiency in the management of their competences, flexibility in access and proportionality in their 25 gascón marcén, a. (2021). los avances de la unión europea hacia la accesibilidad digital para las personas con discapacidad. revista general de derecho europeo, nº 53, pp. 80-108. 26 arenas ramiro, m. (2011). “brecha digital de género: la mujer y las nuevas tecnologías”. anuario de la facultad de derecho, universidad de alcalá iv, pp. 97-125. 27 good governance in the european union has generated a quality research project and is currently undertaking the fourth edition of the eqi, published in 2021, based on measuring the perception of the quality of government in the eu. the concept of quality of government as a broad and multidimensional concept consisting of high fairness and quality in the delivery of public services, together with a low level of corruption. the concept also refers to how power is actually exercised, how the rules are perceived and experienced by citizens. portal of the commission of the european union (2021). european quality of government index 2021. available at: https://ec.europa.eu/regional_policy/es/information/maps/quality_of_governance (accessed 2 may 2022). http://10.17561/tahrj.v20.7631 https://ec.europa.eu/regional_policy/es/information/maps/quality_of_governance vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 11 actions. in short, the use of icts must always and in any case adhere to the principle of legality as a guarantee for all citizens in the exercise of their freedoms28 (aragùas galcerà, 2012: 109-139). we must not forget that distrust of the use of new technologies is a reality in certain sectors of the population (the elderly and people with disability) and their lack of knowledge can be an obstacle. if the public administration, when using the new technologies, detects that the recipients lack adequate training, thus creating a digital divide, they should eliminate their implementation as soon as possible. the new tools will be incorporated prudently, by observing the icts integration times of the most distrustful citizens in their use, adapting the necessary means to respect their freedom of choice to the medium they consider to be the safest (analogue or digital). the reality is that there are fears and misgivings about their use due to possible risks, causing uncertainty and anxiety as a result of a lack of knowledge of the new technologies. it is inexcusable that the introduction of new technologies be governed by regulations that ensure the preservation of the constitutional guarantees of citizens in their relationship with the public administration. this can be seen in the spanish constitution of 1978, in article 9.3, which expressly prohibits the arbitrary nature of the administration; in article 31.2, regarding the need to allocate public spending fairly through criteria of economy and efficiency; and in article 103.1, which establishes that the public administration must objectively serve the general interest through the principles of effectiveness, hierarchy, decentralisation, deconcentration and coordination, with full submission to the law and to the law. the use of e-government in the constitutional text is recognised in article 18.4, on the application of information technology; in article 9.2, when it assigns public authorities to promote conditions of freedom and equality in a real and effective manner, guaranteeing minimum principles of action by the public authorities of legality, security, responsibility, etc., as well as the aforementioned rights. therefore, citizens’ right to freedom of choice in their dealings with the public administration cannot be circumvented while there is any hint of a digital divide in society. the law that introduces telematic innovations as a consequence of the modernisation of the system of good governance, cannot establish a limit for the administered and in no case can it restrict in any way the exercise of their rights or simply create obstacles. consequently, e-government was introduced four decades ago with law 30/1992 of 26 june 1992 on the legal regime of public administrations and common administrative procedure29 (now repealed). already echoing the involvement of new technologies in citizens’ relations with the administration, article 45, on promoting the use and application of new technologies, considered the administration’s use of computer 28 aragùas galcerà, i. (2012). la administración electrónica en españa: de la “administración en papel” a la “e-administración”. revista chilena de derecho y ciencia política. v. 3, nº 2, pp. 109-139. 29 spain. law 30/1992, of 26 november, of the public administration and general administrative procedures (published in boe of 27 november). http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 12 and telematic means to be appropriate for exercising its powers, allowing citizens to interact with the technical means at their disposal. article 38 also provided for the computerisation of registers and archives. this incorporation materialised with the aim of extending communication facilities with citizens. in addition, law 24/2001 of 27 december 2001 allowed for telematic registers, both for the entry and exit of documents and the receipt of applications. it allowed interested parties to be notified by this means, if the citizen so indicated or consented to it as preferential. subsequently, the general tax law in 200330, allowed for electronic notifications and automated administrative action. in its explanatory memorandum, it reflected for the first time the importance of the use and application of electronic, computerised and telematic techniques and means by the tax administration. in article 60, it already contemplated it as a means of payment; in article 87, as a means of communication and information actions with the citizen; as social collaboration in article 92 and a long list of other situations that invited participation through electronic means. law 11/2007, of 22 june, on citizens’ electronic access to public services, went a step further by allowing citizens to interact by this means, incorporating in their systems the provision of the appropriate means to do so. however, this electronic communication was still subject to the voluntary nature of the users, but it represented yet another alternative channel, a facilitating channel that would help in the management of procedures, a saving for citizens and a reinforcement of their guarantees. the provision was proposed as an advance in the services that the public administration offered to citizens, providing agility in the processes and preventing the formalities for citizens from being cumbersome. according to the explanatory memorandum, this law was developed out of a concern to adapt the means of access to the public administration to the current times. there is no doubt that new technologies should be introduced due to the great contribution of advantages and possibilities of the information society, as well as the configuration of a modern public administration increasing its principles of efficacy and efficiency as the inspiring axes of the electronic access process. however, what all the approved provisions really constitute is the provision of adequate and modern telematic means of access to the public administration. they also imply the incorporation of instruments that facilitate efficient, flexible and agile communication for citizens, as well as the promotion of adequate information for citizens as a means of guaranteeing their rights; but nothing is established regarding the obligation for citizens to use the electronic medium, as this implies a significant investment. this transformation will undoubtedly require not only economic resources, but also personal resources for digital literacy, which could generate a problem of accessibility for some of the most vulnerable groups, such as the elderly and people with disabilities, if the use of new technologies becomes compulsory. 30 spain. law 58/2003, of 17 december, of general taxation (published in boe of 18 december). http://10.17561/tahrj.v20.7631 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 13 according to law 11/2007, of 22 june, on citizens’ electronic access to public services, the main objectives of the use of e-government include: reinforcing the principles of effectiveness and efficiency; cost savings for citizens and companies; an increase in their guarantees; and an increase in transparency in the provision of information to citizens in an agile and up-to-date manner. this is a laudable intention as long as the telematic access channel between the citizen and the public administration is guaranteed for both parties. in view of the possible lack of coordination in the use of the new telematic media, law 11/2007 created the figure of the user’s ombudsman, with the function of attending to citizens’ complaints and suggestions to improve relations through electronic media, constituting an irreplaceable aid for the expansion of electronic culture among all. despite the kind intentions of all institutions, both national and eu, the integration of this new means of communication, based on electronic and telematic resources, has caused a problem of regulatory dispersion due to the multitude of provisions that regulate it. the clear example, according to the explanatory memorandum of law 39/2015, is the approval of law 17/2009, of 23 november, on free access to and exercise of service activities; law 2/2011, of 4 march, on sustainable economy; law 19/2013, of 9 december, on transparency, access to public information and good governance; or law 20/2013, of 9 december, on guaranteeing market unity, among others. as a consequence, and with the aim of unifying criteria, law 39/2015 and 40/2015, currently in force, were passed, where the use of telematic procedures is completely standardised and specified, responding, according to the legislator, to the social demand to make the telematic medium the habitual means of action. royal decree 203/2021, of 30 march, which approves the regulation of action and operation of the public sector by electronic means31, is justified by the adaptation of telematic procedures to all citizens based on: improving administrative efficiency; increasing the transparency of its actions by developing an electronic general point and the citizen folder; and ensuring that digital services are easy, intuitive and effective when using the electronic channel. we must not forget that the obligation to adapt to electronic media is especially focused on public administration as a means of streamlining and making procedures more flexible, thereby increasing the guarantees for citizens. this adaptation highlights the good will of the institutions when they modernise their web platforms by providing them with more efficient communication processes. however, this efficiency, which enables the implementation of new technologies, must make clear the freedom of choice of use for everyone, including companies, in the event of a lack of technological resources. something that has not happened, as these and self-employed workers, among others, are already obliged to interact with the public administration by telematic means, thus completely avoiding any difficulty in adapting and digitally transforming themselves. this has been regulated by law 39/2015 in its article 14.2, establishing those obliged to communicate 31 spain. royal decree 203/2021, of 30 march, approving the regulation on the action and operation of the public sector by electronic means (published in the official state gazette of 31 march). http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 14 electronically: legal persons, entities without legal personality, those who carry out a professional activity for which compulsory registration is required, those who represent an interested party who is obliged to interact electronically with the administration and employees of the public administrations for the procedures and actions they carry out with them due to their status as public employees, in the manner determined by regulation by each administration. likewise, although natural persons are generally excluded from the obligation, those who, due to their economic capacity, technical capacity, professional dedication or other reasons, can prove that they have access to and availability of the necessary electronic means, are obliged to do so. in short, the obligation is widespread and much more so in recent times, as telematic administrative procedures have managed to establish themselves in all contexts, almost in a unique way. as a result, there is a limitation of the right of freedom to interact, whoever one may be, and in some procedures, all citizens are obliged to apply telematically (e.g. medical appointments). as a result, a digital divide is growing, especially among the elderly and people with disability. 4.3. inconveniences in the exercise of the rights of elderly and people with disability through e-government despite the obvious advantages provided by the use of electronic media in communications and access to the public administration, we should not ignore the existence of dangers and consequences, both positive and negative, especially for vulnerable groups. producing a digital divide. in terms of the positive aspects or consequences detected in the use of e-government, we find the following: its agility, is undoubtedly the time saving it produces for both the public administration and the citizen, shortening distances, enabling immediate information and communication, which is very beneficial for the administered; efficiency in terms of the reduction of resources needed to serve citizens; the availability of access anywhere and at any time; the increase in citizen participation and information; ecologically sustainable, as it requires fewer material resources; and secure, if the appropriate personal data protection measures are established32 y 33. however, we must focus on the disadvantages that may arise for citizens in the use of icts with the public administration, with the aim of proposing solutions to protect the rights of all, especially the most vulnerable groups, the elderly and people with disability. thus, we can highlight the following disadvantages: 32 spain. organic law 15/1999 of 13 december 1999 on the protection of personal data (published in the official state gazette of 14 december) adapted our legislation to the provisions of directive 95/46/ec of the european parliament and of the council of 24 october 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, repealing in turn the hitherto existing organic law 5/1992 of 29 october 1992 on the regulation of the automatic processing of personal data. 33 spain. organic law 3/2018 of 5 december, of protection of personal data and digital rights guarantee (published in boe of 6 december). http://10.17561/tahrj.v20.7631 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 15 ● inaccessibility due to the lack of technological resources in some sectors of the population, especially vulnerable groups. it is clear that citizens do not use or possess the same technological structural means, resulting in the imposition of the only possible access, digital access, a situation of dependence, marginalisation, lack of protection and violation of rights for those who do not have them. ● digital illiteracy. knowledge of icts is a determining factor in enabling and promoting their use. the presence of social groups who, due to age or disability, do not have it, imposes a barrier to access and a detriment in terms of opportunities and violation of their rights. ● high cost. if the most vulnerable groups receive low pensions (especially noncontributory pensioners), the provision of technological tools for accessing to e-government will be difficult to achieve for these vulnerable groups and, therefore, to obtain an adequate icts integration process. according to data from the ministry of employment and social security34, the average pension in spain in august 2022 is 1,091.28 euros. according to these data and in comparison to the current standard of living, it seems insufficient to maintain a good quality of life. we must not forget that new technologies require constant updating of applications, as a result of the research that takes place day after day, requiring more powerful equipment to avoid obsolescence and to guarantee access to the administration’s digital platforms. likewise, depending on the administration, there will be a clear difference in resources that will make it possible to update them and offer suitable platforms. ● vulnerability of personal data. the privacy of citizens is essential and, therefore, that it be protected through digital platforms, as a multitude of sensitive data is used, which can be exposed by the countless cyber-attacks, causing insecurity. to this end, various regulations have been passed to protect the privacy of users (organic law 15/1999, of 13 december on the protection of personal data and organic law 3/2018, of 5 december, on the protection of personal data and the guarantee of digital rights). ● high complexity. if we take a tour of the different digital platforms, we can see that some are cumbersome and not very intuitive, mainly due to the specificity of the standardised procedures. it is essential that they are simple to use, especially if they are aimed at many sectors of the population that do not have the necessary resources for effective communication with the public administration and whose rights may be violated. in summary, in view of the consequences that arise from the integration of icts in the processes of communication and access to the public administration, we must affirm 34 epdata portal (2020). pensions in spain. available at: https://www.epdata.es/datos/pensiones-graficos-datos/20/espana/106 (accessed 6 september 2022). http://10.17561/tahrj.v20.7631 https://www.epdata.es/datos/pensiones-graficos-datos/20/espana/106 disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 16 that the obstacles that arise can be eliminated through the exercise of respect for freedom in the use or non-use of electronic processes. the implementation of e-government should not entail a reduction in citizens’ rights, regardless of their social circumstances. the use of icts imposes in its objectives the efficiency of the public administration and the general interest. it is essential to implement flexible procedures that facilitate the objectives of the public administration in the exercise and respect of citizens’ rights and freedoms, giving special protection to vulnerable groups and, therefore, always and in any case, respecting the wishes and preferences of those being administered. the modernisation of public administration must take the necessary time to adapt to current times and the needs of users, balancing and reconciling its implementation. this will require freedom of choice for citizens with regard to the means of communication with the public administration, regardless of the area in which it is implemented. there is no doubt that, with the passage of time, generations will adapt to technological means, as well as with the help of the necessary resources through the consolidation of open networks for all and the subsidising of digital media for those most in need. 4.4. the digital divide among the elderly following the covid-19 pandemic, the emergency implementation of e-government communication processes through telematic media has had a negative impact on the most vulnerable sectors of the population, the elderly and people with disability. moreover, there have been devastating consequences in the exercise of their rights due to a lack of digital competence and technological resources. this is how the digital divide35 arises, understanding the concept in general terms as inequality in access to the internet and icts. the solutions to eliminate the digital divide are classified into two types, one hard and one soft: the soft one deals with the technological infrastructure and the hard one with the starting point of the divide, the social and economic bias of the elderly and people with disability. the latter is more complex to eliminate because it is in turn integrated by different variables: economic, chronological, countries, gender and personal circumstances of each citizen36 (almenara, 2008: 15-43). according to sources, this circumstance is caused by the heterogeneity of the implementation of telematic resources derived from social imbalances at a global level. it is estimated that it affects 52% of women and 42% of men in the world37; a bias that does not occur continuously at a global level, as it will also depend on the economic and technological level of the world’s regions, since 35 in 2003, the united nations held the so-called world summit on the information society. the conference in geneva resulted in a declaration specifying the importance of the right to freedom of expression in the framework of the “information society”. visible portal (2003). “6 key points on the digital divide and the right to the internet”. available at: https://www.visibles.org/es/actualidad/democracia-y-participacion/6-puntos-clave-sobrebrecha-digital-y-derecho-internet (accessed 1 may 2022). 36 almenara, j. c. (2008). tic para la igualdad: la brecha digital en la discapacidad. in anales de la universidad metropolitana. vol. 8, nº 2, pp. 15-43. 37 iberdrola portal. the digital divide in the world and why it causes inequality. available at: https://www.iberdrola.com/compromiso-social/que-es-brecha-digital (accessed 15 may 2022). http://10.17561/tahrj.v20.7631 https://www.visibles.org/es/actualidad/democracia-y-participacion/6-puntos-clave-sobre-brecha-digital-y-derecho-internet https://www.visibles.org/es/actualidad/democracia-y-participacion/6-puntos-clave-sobre-brecha-digital-y-derecho-internet https://www.iberdrola.com/compromiso-social/que-es-brecha-digital vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 17 according to the word stats source as of may 2020, the african continent would have a much lower level of connection, around 39.3% compared to 87.2% of europeans and 94.6% of north americans. there is undoubtedly a profound difference at the global level. these data show us the great technological divergence between one country and another, so that digital literacy is still in a process of consolidation through the promotion of progress, in search of a balance between the states in the different areas of society, educational in terms of technological training, economic in terms of the necessary structural and social resources, and ideological in terms of promoting the integration of all sectors of the population on an equal footing. from the eu point of view, if we compare the digital divide in europe by age or disability, this gap is even more accentuated. the director general of the imserso38 in spain expressly recognised this issue as a concern for defending the rights of the elderly, showing his interest in correcting it. such is his recognition that the imserso website39 already includes an action related to the equalisation of the digital problem with the elderly, “icts accessibility space”40. in this section of the portal, there is a series of services aimed at training older people in the use of technologies and their approach through tutorials on the use of icts, online and face-to-face courses, useful advice on digital tools, etc. however, in order to reach this point, older people need to have the previous technological resources (pc, smartphone, tablet), as well as the minimum knowledge of digital literacy to be able to understand the section. it is difficult to learn about the development of a new medium through it if we do not know how to access it due to a lack of basic digital skills. the idea can be very useful, but it is essential that the beginnings are carried out face-toface in order to be effective. likewise, a programme is currently being carried out in spain “levanta la cabeza” through private institutions41 (atresmedia), with the aim of integrating the elderly in the use of icts. 38 imserso: the institute for the elderly and social services is one of the spanish social security management entities responsible for the management of social services complementary to the benefits of the social security system, disability and retirement pensions, in their non-contributory modalities, as well as the exercise of the competencies of the general state administration in matters of the elderly and dependent persons. this institution was created through royal decree-law 36/1978, of 16 november, on institutional management of social security, with royal decree 140/1997, of 31 january, it changed its name to the institute of migration and social services, and finally, royal decree 1600/2004, of 2 july, which develops the basic organic structure of the ministry of labour and social affairs, defined its current name. available at: https://www.imserso.es (accessed 5 may 2022). 39 imserso portal. la brecha digital de los mayores de edad. available at: https://blogciudades.imserso.es/tag/brecha-digital/ (accessed on 5 may 2022). 40 imserso portal. tec accessibility space. available at: https://www.imserso.es/imserso_01/espaciomayores/esptic/index.htm (accessed on 1 may 2022). 41 portal atresmedia (2022) “levanta la cabeza” campaign. available at: https://compromiso.atresmedia.com/levanta-la-cabeza/ (accessed 23 may 2022). http://10.17561/tahrj.v20.7631 https://www.imserso.es https://blogciudades.imserso.es/tag/brecha-digital https://www.imserso.es/imserso_01/espaciomayores/esptic/index.htm https://compromiso.atresmedia.com/levanta-la-cabeza disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 18 according to a study in spain on the digital divide in ageing, 73.3% of older people between 65 and 74 years of age would be using the internet by 2021. the increase of the connected population is considerable, as in 2006 the percentage was 5.1%, according to the national statistics institute (ine) in the “survey on equipment and use of information and communication technologies in households”. however, thanks to the health pandemic of 2020, its use has grown exponentially due to the needs that have arisen and, consequently, the digital divide has evolved favourably, minimising its percentage among people of age42 and/or disability. analysing the oldest age group in depth, we can see that those over 74 years of age have not been included in the study, so that the results, if they had been included, would be less satisfactory. we can also observe that life expectancy at birth in spain is 85.4 years for women and 80 years for men for the year 2020, according to the ine43. this is a similar average in the eu environment, although somewhat lower, denoting a considerable percentage eluded that generates fictitious results in the participation of the elderly in icts. and this is so because if we consider 83 years as the average life expectancy at birth in europe and add the assumption that only the age range up to 74 years has been analysed, we detect that there are about 9 years undetermined in the survey on access to digital skills. this lack of study of people aged 75 and over would lead to a higher average digital divide, since they either have no access or only minimal access, as it has been ignored. if this age/disability group had been taken into account, it would mean a considerably lower percentage in the use of new technologies, giving rise to a clear consideration of the digital divide by age and disability. in the survey on the internet use during the last three months, according to the ine44 in 2019, the question was clarified a little more: 90% of young people between 16 and 64 used the internet in the last three months, 63% of people between 65 and 74 years old and, finally, 23% of people over 75 years old, clearly showing the digital divide by age and disability. in terms of gender, according to the same source in the 2021 survey of at least one computer literacy, for those under 65 there was no apparent difference, however, in the 65-74 age group, 45.8% of men compared to 33.2% of women, clearly showing the gender digital divide. the age group over 75 years has not been collected, but according to the trend, it is very likely that the difference is even more pronounced. in short, the digital divide is a fact among the elderly and people with disability, and much more so among women. 42 ageing online portal available at: https://envejecimientoenred.es/la-brecha-digital-por-edad-los-mayores-continuanreduciendola/ (accessed 2 may 2022). 43 portal of the national institute of statistics (2021). life expectancy in spain. available at: https://www.ine.es/ss/satellite?c=ineseccion_c&cid=1259926380048&p=1254735110672 &pagename=productosyservicios%2fpyslayout (accessed 10 may 2022). 44 national institute of statistics portal (2021). by 2030, significantly increase the number of young people and adults who have the necessary skills, in particular technical and vocational skills, to access employment, decent work and entrepreneurship. percentage of adults (16-74 years) who have performed computer-related tasks in the last 12 months by gender, age group and type of task. available at: https://www.ine.es/jaxit3/tabla.htm?t=46292 (accessed 5 may 2022). http://10.17561/tahrj.v20.7631 https://envejecimientoenred.es/la-brecha-digital-por-edad-los-mayores-continuan-reduciendola https://www.ine.es/ss/satellite?c=ineseccion_c&cid=1259926380048&p=1254735110672&pagename=productosyservicios%2fpyslayout https://www.ine.es/ss/satellite?c=ineseccion_c&cid=1259926380048&p=1254735110672&pagename=productosyservicios%2fpyslayout https://www.ine.es/jaxit3/tabla.htm?t=46292 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 19 5. e-government and elderly and people with disability in a globalised world icts have played a fundamental role in the phenomenon of globalisation, however, not all countries are in the same process of modernisation and development. this is why the global repercussion of the digital divide will be at different levels, depending on a multitude of elements, including their economy, social and technological development index and, obviously, their political and cultural factors that favour or do not favour change. and even the location factor, within the same country, could have an influence, and this is due to the existence of places that are not digitised, despite the technological progress of the country45 (empty spain) (colom, 2020: 352). in europe, in 2020, the commission produced a document entitled the “digital economy and society index46 (desi)” analysing the overall performance of digital competitiveness in its environment. its results are very encouraging, especially in the wake of the health pandemic that exponentially boosted the use of digital technologies immediately. according to the report, among the most digitised countries were finland, sweden, denmark and the netherlands, including them as global leaders. they were followed by malta, ireland and estonia. it should be noted that ireland has had the most successful digital transformation in the last five years, followed by the netherlands, malta, and spain, performing above the european average. the paper noted that the human factor and its digital skills were essential in this digitisation process. it considered that, if these factors were adequate, they would inexcusably favour an efficient communication and information system between citizens and the public administration and, in general, with the digital transformation of society. likewise, the digital skills of the european population were analysed at a global level, with the result that 42% of the european population lacked the minimum digital skills. in terms of the use of digital public services, e-government and e-health, 67% of the european population was recognised as using these services, with estonia, spain, denmark, finland and latvia standing out in this respect. according to the “global information technology report” published by the world economic forum, in partnership with the world bank’s development programme (infodev) and insead business school, finland is the world’s leading country in icts deployment, as a result of the assessment of 82 countries47. the report produced a 45 colom, c. (2020). las brechas digitales que deben preocuparnos y ocuparnos. ekonomiaz: revista vasca de economía nº 98, pp. 350-353. 46 portal of the e-government observatory (2022). digital economy and society index (desi). available at: https://administracionelectronica.gob.es/pae_home/pae_obsae/posicionamiento-internacional/ comision_europea_obsae/indice-de-economia-y-sociedad-digital-desi-.html (accessed 3 may 2022). 47 portal of the european commission (2022). cordis. available at: https://cordis.europa.eu/article/id/19772-finland-ranked-best-in-world-for-ict-deployment/es (accessed 2 may 2022). http://10.17561/tahrj.v20.7631 https://administracionelectronica.gob.es/pae_home/pae_obsae/posicionamiento-internacional/comision_europea_obsae/indice-de-economia-y-sociedad-digital-desi-.html https://administracionelectronica.gob.es/pae_home/pae_obsae/posicionamiento-internacional/comision_europea_obsae/indice-de-economia-y-sociedad-digital-desi-.html https://cordis.europa.eu/article/id/19772-finland-ranked-best-in-world-for-ict-deployment/es disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 20 network readiness index (nri) revealing that the us had fallen to second place due to its inadequate icts diffusion, in contrast to finland, which came first. the united kingdom came seventh, denmark eighth, followed by germany in tenth place and the netherlands in eleventh. other eu countries were also well ahead, such as france in 19th place, spain in 25th place and italy in 26th place. given these circumstances, it is essential to differentiate between two determining factors: the technological level of a country and the implementation of icts in e-government, as this does not necessarily imply that they are on a par, since there are considerable differences between some countries and others. in the un study on “united nations e-government” published on 6 august 2020, from the 193 un member states, estonia together with denmark and the republic of korea top the list of countries with the highest “e-government development index”48, with estonia ranking first in e-participation index worldwide. it adds that estonian citizens do all their business online, except for getting married, getting divorced and buying and selling real estate. so remarkable is estonia’s digital resilience that it has pledged to help 130 countries online, including japan and the us49, to bridge the digital divide by providing solutions through the e-estonia briefing center. in addition to estonia, which is in first position, according to the ranking established by the “e-participation index” at world level, we find in the first positions: republic of korea, usa, japan, new zealand, austria, singapore and uk. the reason is conclusive, the direct consequence of the incidence of the covid-19 pandemic. the explanation is obvious, the urgency that occurs at the time of confinement and to avoid as much as possible the suspension of citizens’ rights, causes the use of the necessary tools from all fronts, economy with e-commerce and the digitisation of the public sector. not exempt from problems due to its immediate implementation, the serious incidence of the digital divide for many citizens is once again emerging, being even more pronounced in the most vulnerable sectors of the population, the elderly and people with disability. the international telecommunications union highlighted the existence of people who do not have access to technology, which puts them at a disadvantage compared to others who do. thus, its discourse was oriented towards detecting the problem of access, based on the difference between those who know how to use them and those who do not. although there are a large number of people who 48 it is a ranking tool in terms of digital governance, capturing the scope and quality of online services, the state of telecommunications infrastructure and existing human capacity. it identifies each country's strengths, challenges and opportunities. it is a tool that supports countries' efforts to provide effective, accountable and inclusive digital services, with the aim of closing the gaps on the principle of leaving no one behind. undoubtedly, its results are key for each country's ministers associated with digital policies and strategies. un portal. (2022). global launch of the un e-government survey 2022. available at: https://publicadministration.un.org/en/research/un-e-government-surveys (accessed 29 may 2022). 49 un portal. (2020). covid-19 more government activities online despite persistent digital divide, according to annual egovernment survey. available at: https://publicadministration.un.org/portals/1/e-government%20survey%202020%20press% 20releases.pdf (accessed 29 may 2022). http://10.17561/tahrj.v20.7631 https://publicadministration.un.org/en/research/un-e-government-surveys https://publicadministration.un.org/portals/1/e-government%20survey%202020%20press%20releases.pdf https://publicadministration.un.org/portals/1/e-government%20survey%202020%20press%20releases.pdf vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 21 know how to use them and have the resources to do so, there is also a percentage who do not. furthermore, he added that among those who do not, the majority were older people and people with disabilities because of their greater degree of difficulty and because they are not taken into account50 (bermúdez, sevilla and sánchez, 2014: 489-498). however, at the global level and depending on their technological capabilities, most countries are keen to further implement egovernment through innovative initiatives. efforts will focus on removing the technological barriers that may arise between citizens and government, being aware of the very unequal access situation. however, despite the difficulty, the goal of digital transformation is a fundamental part of sustainable development in many countries51. as an analysis that clearly shows the current situation, the “e-government survey 2020” highlights the key points that it detects as problematic in the application of icts. among the most important points: the absence of benefits, the existence of barriers due to lack of understanding of data, limited resources, concerns with data quality, security and privacy, including finally the requirement for a long-term approach. this leads us to conclude that despite the efforts for the efficient integration of icts in e-government in a globalised way, serious dysfunctions are detected, depending on the country and its development, with citizens due to a multitude of factors, but especially due to the lack of resources, both technological and those derived from digital competence. 6. conclusions and proposals for improvement to conclude, this study has been based on the protection of the rights of elderly and people with disability in their freedom of choice in the form of access to public administration procedures through e-government. it has analysed the consequences of the incorporation of e-government on a regular basis in all areas of life, transforming society in the use of icts and much more, since the covid-19 health pandemic. while it is true that new technologies play a fundamental role in the development of society, it is also true that, if the processes of incorporation are not adequate, they can cause a marked digital divide, especially in the most vulnerable groups, as observed in the data. despite the advantages of the incorporation of icts in information and communication processes, we cannot forget, as has already been developed throughout the text, that the obstacles can produce devastating consequences in groups that are not yet prepared for it, either due to a lack of economic or technological resources, or due to the new technologies introduced in the information and communication processes. likewise, 50 escandell bermúdez, m. o., fortea sevilla, m. d. y castro sánchez, j. j. (2014). la brecha digital en las personas con discapacidad visual. revista infad de psicología. international journal of developmental and educational psychology. v. 1, pp. 489-498. 51 un gateway. (2020). welcome remarks and key messages. launch of the un e-government survey 2020. available at: https://www.un.org/development/desa/statements/mr-liu/2020/07/remarks-launch-2020-egovsurvey.html (accessed 29 may 2022). http://10.17561/tahrj.v20.7631 https://www.un.org/development/desa/statements/mr-liu/2020/07/remarks-launch-2020-egov-survey.html https://www.un.org/development/desa/statements/mr-liu/2020/07/remarks-launch-2020-egov-survey.html disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 22 it is a reality that promotes a large number of advantages for the citizens of the world, but it should be highlighted that its exclusive use can lead to the violation of citizens’ rights, especially those of older or with disability citizens due to a lack of adaptation to the environment, either due to a lack of technological, economic or even social resources. after noticing the obstacles that occur in the procedures and access to e-government for the elderly and people with disability, it can be seen that society is not yet ready for digital communication as the “only” system for information, communication and access to administrative procedures. it is imperative that the right to freedom to choose how to access public administration is maintained, that the implementation of egovernment is an opportunity for citizens to improve their lives and not just an aid to speed up the administration’s procedures. it is necessary that citizens’ rights remain intact through respect for the freedom of the individual in achieving his or her effective integration in all areas of community life. as a result of this work, the following considerations are proposed: firstly, the maintenance of analogue processes of access to the public administration for all citizens and even for companies, so that their right to freedom is thereby fully respected. the absence of digital skills or technological resources should not be an obstacle to communicating with the public administration. as we have already seen, e-government is a mechanism that increases the efficiency and effectiveness of the actions of the administration at the service of citizens. it is essential to give citizens and companies with limited resources the freedom to interact with the administration in the most advantageous way for them, until time incorporates the necessary digital training for all. if the two systems of access are maintained, both for citizens and companies, respect for citizens’ rights will be guaranteed, and even more so for the elderly and the people with disability. secondly, it is proposed to implement a technological support service for citizens. in the offices of the public administration and through the principle of proximity, it would be advisable to incorporate a physical support person nearby, a support person in each territorial entity to serve as a bridge for accessing to new technologies. this figure would be a great help for the age and disability groups, as, in addition to providing support, he or she would promote a training link for citizens lacking digital literacy (proposing icts courses, tutoring access, etc.). the presence of a person close to the public administration will provide security for citizens with access problems and a lack of digital literacy and economic and technological resources. this personal assistant, located in each public administration register, would have the competence to support people who need it in their procedures, with the aim of alleviating their anguish, clearing their doubts and providing them with guarantees in the exercise of their rights without any obstacle whatsoever. preserving the freedom to choose the means of communication with the public administration does not entail any added cost, since until the introduction of icts this had been done in an analogue manner. however, granting freedom of choice would be a gesture of respect for the diversity and freedom of citizens, regardless of their age or disability. http://10.17561/tahrj.v20.7631 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 23 public aid for accessing to technological resources (pc, tablet, free software, etc.) as well as for internet services with more economical fees based on age, internet vouchers. open wifi access in public centres financed by local entities, as new technologies must reach everyone as services of social interest52 (sig). from here we propose to go further and consider it as a service of general social interest53, due to its necessity and repercussion on the population worldwide, so that everyone has access to digital information and communication regardless of their economic circumstances. if we are in the age of communication and information at a global level, it is logical that everyone should have the possibility of accessing to knowledge by having the appropriate resources, since the treasure of a people is its education and culture54 (delors, 1996: 46). to conclude, after this study, it is indisputable to highlight that the citizens’ right to freedom must remain unscathed in the face of any social transformation, even when the integration of change is in favour of improvements in the public administration system, since its objective is to be at the service of the citizens. it is inevitable that the technological changes that have taken place in recent decades will generate some dysfunction, and even more so due to the urgency of their implementation. however, processes must be adjusted in order to find solutions for all citizens, especially for the most vulnerable sectors of the population, the elderly and people with disability. we must not forget that progress must always go forward with all citizens, respecting differences, social circumstances and especially our right to freedom. 7. bibliography almenara, j. c. (2008). tics para la igualdad: la brecha digital en la discapacidad. in anales de la universidad metropolitana. vol. 8, nº 2, pp. 15-43. aragùas galcerà, i. (2012). la administración electrónica en españa: de la “administración en papel a la “e-administración”. revista chilena de derecho y ciencia política. v. 3, nº 2, pp. 109-139. https://doi.org/10.7770/rchdcp-v3n2-art425 52 within the european framework of directive 2009/136/ec of the european parliament and of the council of 25 november 2009 (users' rights) and directive 2009/140/ec of the european parliament and of the council of 25 november 2009 (better regulation), law 9/2014 of 9 may, general telecommunications act (published in the official state gazette of 10 may) is regulated in spain. article 2.1. on telecommunications as services of general interest establishes that telecommunications are services of general interest that are provided under free competition. 53 services of general interest are those that are considered as such by the public administrations of eu member states and are therefore subject to specific public service obligations. social services of general interest address the needs of the most vulnerable citizens and are based on the principles of solidarity and equal access. they can be both economic and non-economic. european union portal. services of general interest. available at: https://ec.europa.eu/info/topics/single-market/services-general-interest_es (accessed 3 may 2022). 54 delors, j. (1996). “la educación encierra un tesoro”. informe a la unesco de la comisión internacional sobre la educación para el siglo xxi (compendio. documento de reunión, p. 46. http://10.17561/tahrj.v20.7631 https://doi.org/10.7770/rchdcp-v3n2-art425 https://ec.europa.eu/info/topics/single-market/services-general-interest_es disability and the elderly in their freedom of interaction with the spanish administration the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 24 area moreira, m. (2002). “igualdad de oportunidades y nuevas tecnologías. un modelo educativo para la alfabetización tecnológica”. revista en educar nº 29, p. 64. arenas ramiro, m. (2011). “brecha digital de género: la mujer y las nuevas tecnologías”. anuario de la facultad de derecho, universidad de alcalá iv. pp. 97-125. colom, c. (2020). las brechas digitales que deben preocuparnos y ocuparnos. ekonomiaz: revista vasca de economía nº 98, pp. 350-353. delors, j. (1996). la educación encierra un tesoro. informe a la unesco de la comisión internacional sobre la educación para el siglo xxi (compendio). documento de reunión. p. 46. escandell bermúdez, m. o., fortea sevilla, m. d. y castro sánchez, j. j. (2014). la brecha digital en las personas con discapacidad visual. revista infad de psicología. international journal of developmental and educational psychology. v. 1, pp. 489-498. https://doi.org/10.17060/ijodaep.2014.n1.v1.396 fernández suarez, j. a. (2018), el derecho de libertad en eduardo garcía máynez. revista de posgrado en derecho de la unam. nueva época nº 8. pp. 267-294. https://doi.org/10.22201/fder.26831783e.2018.8.74 ferreiro viñuales, s. (2015). el artículo 41 de la carta de los derechos fundamentales de la unión europea: una visión crítica. estudios de deusto, 63(1). pp. 423-435. https://doi.org/10.18543/ed-63(1)-2015pp423-435 gascón marcén, a. (2021). los avances de la unión europea hacia la accesibilidad digital para las personas con discapacidad. revista general de derecho europeo, nº 53), pp. 80-108. garrido mayol, v. (2020). el principio de buena administración y la gobernanza en la contratación pública. estudios de deusto: revista de la universidad de deusto, 68(2), pp. 115-140. https://doi.org/10.18543/ed-68(2)-2020pp115-140 lasarte, c. (2019). “compendio de derechos de la persona y el patrimonio”. 9ª edición. dykinson. madrid. pp. 23. martínez torán, m. y esteve sendra, c. (2021). “estudio brecha digital y discapacidad: una perspectiva centrada en las personas”. cátedra de brecha digital y diversidad funcional. valencia. pp. 1-26. rebollo puig, m. y vera jurado, d. j. (2019). “modos y medios de la actividad administrativa”. tomo iii. madrid. tecnos. pp. 127-133. rodríguez, g. (2004). gobierno electrónico: hacia la modernización y transparencia de la gestión pública”. revista de derecho. universidad del norte, pp. 1-23. tomás mallén, b. (2004). “el derecho fundamental a una buena administración”. map-inap, madrid. pp. 179. http://10.17561/tahrj.v20.7631 https://doi.org/10.17060/ijodaep.2014.n1.v1.396 https://doi.org/10.22201/fder.26831783e.2018.8.74 https://doi.org/10.18543/ed-63(1)-2015pp423-435 https://doi.org/10.18543/ed-68(2)-2020pp115-140 vanesa sánchez ballesteros the age of human rights journal, 20 (june 2023), e7631 issn: 2340-9592 doi: 10.17561/tahrj.v20.7631 25 vicente cuervo, m. r. y lópez menéndez, a. j. (2005). una aproximación a la brecha digital por discapacidad. el caso de la unión europea. boletín económico de ice, nº 2834, pp. 43-57. received: 10th october 2022 accepted: 11th december 2022 http://10.17561/tahrj.v20.7631 disability and the elderly in their freedom of interaction with the spanish administration abstract 1. introduction 2. methodology 3. the right to liberty of elderly and people with disability in their relationship with the admi 4. public administration in the use of new technologies 4.1. e-government: principles, characteristics and objectives 4.2. legal regime for citizens’ relations with the public administration through icts in spain 4.3. inconveniences in the exercise of the rights of elderly and people with disability through e 4.4. the digital divide among the elderly 5. e-government and elderly and people with disability in a globalised world 6. conclusions and proposals for improvement 7. bibliography progress and challenges for the recognition, protection and promotion of indigenous women•s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 23 progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system jonatán cruz ángeles1 abstract: in this study, we begin by analysing the guiding legal principles and international standards that states must consider when developing laws, programs, and policies to protect indigenous women’s human rights as members of their communities. besides, we try to find out what priority issues states are trying to address. once we establish the theoretical framework, we will review how, in practice, the interamerican commission and court have examined some of the leading cases concerning the protection of the economic, social, and cultural rights of indigenous women. all this will lead us to understand the bases of indigenous women's worldview. therefore, we attempt to understand the role what role indigenous, tribal or autochthonous women has played in society to date. thus, this will allow us to analyze strategies developed to guarantee their right to life and their integral protection in order to evaluate how the phenomenon of their empowerment, conquest of public spaces, political participation and personal development is being assisted. keywords: indigenous women, worldview, inter-american law, collective rights, individualized approach, honour and dignity. summary: 1. introduction; 2. inter-american standards of protection for indigenous women as a members of a group or collective; 3. international-legal duties of the organisation of american states’ members; 3.1. duty to recognize the indigenous peoples. 3.2. duty of prevention. 3.3. duty of indigenous women’s protection. 3.4. duty of special attention in armed conflicts. 3.5. duty to guarantee adequate access to justice and due diligence in the development of the investigation. 3.6. duty to penalize and repair the damage caused; 4. leading cases before the inter-american system of human rights: the implementation of collective rights to individual petitions; 4.1. the recognition of slaughtered indigenous women. 4.2. enforced disappearance investigation. 4.3. prevention of feminicide. 4.4. towards the protection of indigenous women’s honour and dignity; 5. conclusions. 1. introduction in the americas, the path to equality requires visibility and effective participation of these groups who traditionally had been excluded and discriminated just as indigenous women. thus, the progress to equality and the full exercise of their rights is a prerequisite to assert effective democracies in the xxi century (brysk 2000). indigenous women face a series of obstacles such as: few opportunities to access labour market, geographical and economic difficulties to access health care and education services, limited access to social services and programs, high illiteracy rates, 1 assistant professor of public international law and international relations, universidad de jaén, spain. orcid id: 0000-0002-8648-5525 (jangeles@ujaen.es). mailto:jangeles@ujaen.es progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 24 low participation in political process and social alienation (chilisa 2002). political, social and economic exclusion of indigenous women contributes to a permanent situation of structural discrimination, making them more vulnerable to different violent acts. although they can become a target of discriminations and human rights violations, indigenous women cannot be considered just victims (gargallo 2013). their situation is designated by the specific gender construction of their communities, the different social and geographical realities, and adjustments to the dominant society. therefore, indigenous women are not, de facto, a homogeneous group, but they represent a great diversity of situations, needs and claims. consequently, every jurist, who tries to understand each particular situation of these women, should base his/her work on a wider (world) view: the conception of a sort of a group or sorority composed of all indigenous women in the americas (martí i puig 2004). this will allow him/her to identify a set of minimum standards of protection for all indigenous, tribal, and native women in the region. 2. inter-american standards of protection for indigenous women as members of a group or collective we can be confused when we use the term standard. this phenomenon occurs when we use it to allude to irrefutable norms in international law. nevertheless, we use this term sometimes to highlight some minimum levels of protection in case of the absence of explicit or no adequate regulations in a particular legal system such as a domestic, regional, or state legal system (cruz ángeles 2022b). in the last few years, we had to concrete the minimum level of protection for indigenous women in the inter-american human rights system. we start from the initial situation where we have to face a high level of abstraction and generalization: "native people's recognition and protection" (cunningham 2002). therefore, we must determine its content and its implementation. in this regard, native women's protection requires a study of a double situation. on the one hand, which role does it play ad intra; in other terms, what is its status or which role does it play in the native, indigenous or tribal community. on the other hand, which risk does it face ad intra or ad extra due to the fact of being a woman. self-determination2 and cultural identity rights have been recognized to all people considered as native, indigenous, or tribal as a whole (niezen 2009). jus cogens status 2 the principle of self-determination is a democratic political principle by which people can choose their administration. nevertheless, this principle has acquired a legal character and has prompted several positive law provisions, even acceptable erga omnes. the purposes of the united nations are: (…) 2. friendly relations among nations must be developed by the united nations on the basis of equal rights and selfdetermination. (…). the charter of the united nations. “in the court’s view, portugal’s assertion that the right of peoples to self-determination, as it evolved from the charter and from united nations practice, has an erga omnes character, is irreproachable. the principle of self-determination of peoples has been recognized by the united nations charter and in the jurisprudence of the court. (icj, east timor, order of 30 june 1995). jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 25 includes the acknowledgment of the right to determine its economic, social, and cultural3 development to guarantee its existence and well-being as distinct people4. self-determination right, enforceable erga omnes, involves a recognition exercise to the property right of native, indigenous, or tribal peoples over the territory occupied. we do not need to document this territory because of administrative or civil procedures before states authorities. we can substantiate it on pieces of evidence of effective and continuous occupation. in addition, we must recognize and respect relationships established between members of these communities and their religious sites (see inter alia, worship or pilgrimage place, dedicated to ancient deities, or cemeteries where they can honour their ancestors (pallares 2007). thus, it is essential to recognize this unique relationship between native or tribal community members and its territory and nature since they, as actual occupiers or proprietaries, might regularize their situation before the state authorities. therefore, to reach an agreement, all public policies or actions, directly or indirectly, accomplished by state authorities should consult them (including women), respecting their culture and informing them previously (dietz & mateos 2015). accordingly, we must establish a minimum standard: "native women's recognition and protection in the americas", a model we should be adapted to so that we must examine different situations and behaviours. but, how can we build a narrative and identity around a figure, traditionally, so invisible? necessarily, we must start from the process of recognition of their communities, the legal treatment they have received, and attend to the particular needs they have. we must establish a series of priorities to recognize and meet their specific needs.: respect for their right to life, and then we must demand the establishment of measures that guarantee their comprehensive protection. the many forms of discrimination against indigenous women, namely inter alia, gender-based, ethnicity, race, or socio-economic situation, create barriers to access essential services like education. only one out of ten native girls conclude their primary and secondary school in latin america. among the reasons, we could highlight lack of adequate infrastructure; lack of native languages learning systems; their socio-economic situation; the insecurity they experienced; rapes that may cause early pregnancies. discrimination against indigenous women affects the limited access to the social security system. besides, settlements are far from hospitals or 3 peoples’ self-determination designated that all peoples have the right freely determine, without external interference, their political status and to pursue their economic, social and cultural development by virtue of the principle of equal rights and self-determination of peoples enshrined in the charter of the united nations (general assembly, resolution 2625 (xxv), 24th october 1970. declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations). 4 the principle of self-determination is also the right of people to manage their internal and external affairs without external interference and force use. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 26 health centres, so they do not have adequate services. these barriers have an impact on native women's health: infections and illness, high maternal mortality ratio, and massive violations against their sexual and reproductive rights, for instance, forced sterilization cases. indigenous peoples sometimes face difficulties accessing essential resources such as safe water or food due to the historical indifference towards their poverty and their right to control their lands and natural resources (cruz ángeles 2022a). the loss of their territories and natural resources, pollution, and extractive activities obstruct the protection of subsistence activities such as gathering food, agriculture and shepherding. this situation forces indigenous women to leave their birthplace, exposing themselves and becoming more vulnerable to human rights violations. all these continuous and intersectional discriminations against indigenous women result in violent episodes5 in specific contexts: in armed conflicts; during development, investment, and extraction project execution; related to the militarization of their territories; deprivation of freedom; domestic violence; as human rights defender; in urban areas; and in migratory processes, or forced displacements. in all these situations, discrimination contributes to creating a stereotype of them as inferior beings, sexually available, or, simply, easy targets as the weaker sex. therefore, we must enable proper procedures to guarantee their right to access to justice6. then, we could prevent, investigate, judge, penalize and provide compensation in case of violent acts or disappearance of indigenous women, using adequate and effective judicial remedies for the victims and their relatives. member states of the organization of american states should adopt an approach that respects the ethnic and cultural identity, language, and individual traits of indigenous women. besides, they should take measures including providing interpreting and translating free services as they are required; having a multidisciplinary staff throughout the trial; respecting the culture and indigenous worldwide; integrating a gender perspective, and providing training to court officials in intercultural gender-based topics. furthermore, the state judicial system should act with due diligence and apply a holistic perspective, considering particular circumstances of each case and potential barriers faced by indigenous 5 the convention of belém do pará considers violence against women as any action or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women whether in the public or the private sphere. the iacthr considers that obstetric violence encompasses all situations of disrespectful, abusive, negligent treatment, or denial of treatment in the pre-pregnancy stage, during pregnancy, childbirth, and the postpartum period, in health centres. besides, spiritual violence manifests itself when acts of violence and discrimination against indigenous women impact those women individually and the collective identity of the communities to which they belong. therefore, obstetric and spiritual violence are forms of violence against women, prohibited by the convention. 6 the right to access to justice, as a principle of distribution of rights and benefits of each individual, should operate according to a reference standard covered, directly or indirectly, by positive law. this legal system provides the likelihood for justifying the action related to a legal standard. therefore, justice is related to reasonableness, and it distinguishes itself from equity, considering its higher degree of abstraction. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 27 women to access this system7. the goal is to guarantee respect to the victim's cultural traits, namely her worldview and her notion of justice in the reparations provided; reject any prejudice or stereotype; include participation and the victims' point of view, and promote structural transformations. in addition, member states must respect that indigenous people have the right to promote, develop, and retain their justice system and their customary law. consequently, the state must respect indigenous rights as a representation of their self-determination right, and these indigenous systems should act with due diligence and guarantee indigenous women's access to justice without any discrimination. a priori, despite this list of de facto situations that could seem a bit ambiguous, it involves a valued catalogue of minimum standards to protect. inter-american legislator reflects this on the legal corpus constituted by different instruments of recognition and protection of human rights see, inter alia, the american declaration of the rights and duties of man (1948), the american convention of human rights (1969), the interamerican convention on the prevention, punishment, and eradication of violence against women "convention of belém do pará) (1994), the american declaration on the rights of indigenous peoples (2016)leaving in the commission and the inter-american court of human rights hands its interpretation to determine its exact sense by a legal process. 3. international-legal duties of the organisation of american states’ members the inter-american commission on human rights (iachr) considers a numerus clausus principle list should regulate states authorities' actions and omissions, inviting member states to consider the following criteria as useful to develop their public policies8: every native, indigenous or tribal woman should be conceived as an empowered actress9, analysing the case facts from an intersectional perspective10, involved in self-determination11 procedures as an active participant12 7 consider, inter alia, institutional discrimination, geographic distance, cultural or language barriers, civil servants’ cultural insensibility, fear of family or community reactions, ignorance of the legal system or their rights, economic difficulties, or lack of legislation or public politics aimed at addressing their particular problems. 8 the inclusion of these principles in iacthr rapports could be considered an attempt at unofficial codification, undoubtedly non-legally binding, but with some authority, because it reflects the state practice in this work area. 9 we should consider indigenous women as rights holders and not only as potential victims or targets of human rights violations. regardless of whether they might have suffered violence or discrimination, we should highlight their role in the history of the fight for peoples’ self-determination, individual or collective rights, and their rights as women. 10 a multidimensional identity requires an intersectional approach to evaluate the forms of discrimination against women. this superposition of discrimination causes suggests new forms of compounded discrimination that manifest in different experiences from an indigenous woman to another. 11 we should not consider indigenous women’s rights as disintegrators and external to the indigenous fight or related to “external values” or “western values” that enforce individual rights over community rights. paradoxically, this fake dichotomy between community rights and women’s rights has become ingrained in indigenous women’s vulnerability to potential episodes of abuse and violence. 12 indigenous, native or tribal women should have the opportunity to participate in all processes that affect their rights. this principle is recognized under articles xxii (paragraphs 1 and 2) and xxxii of the american declaration on the rights of indigenous peoples, articles 5 and 23 of the united nations declaration on the rights of indigenous peoples, and article 7 of ilo convention no. 169, inter alia. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 28 with her worldview13 (cruz zúñiga 2021). besides, her human rights are indivisible, interdependent, and interconnected14, and therefore they should be considered in their individual and collective dimension15. as soft law rules, these guidelines principles are a starting point to outline a list of specific states' duties of actions or omissions in the following sections. to this end, we will focus on the study of the positive law's sources -especially, resolution ag/ res.2867 (xliv-o/14) "american declaration on the rights of indigenous peoples project" and the inter-american commission and court of human rights' decisions without assessing possible philosophical, anthropological or sociological interpretations (serrano rojas 2019). we do not consider them since they could create possible duties of iusnaturalism. 3.1. duty to recognize the indigenous peoples to begin with, member states of the organisation of american states (oas) must fully recognize the legal status of all the indigenous peoples members while respecting their organization, in other words, their institutions and promoting the full exercise of their human rights16. however, how could we identify as tribal, indigenous, or native communities members? in the inter-american system, self-identification is an essential criterion. therefore, states authorities must respect the right to this selfidentification as indigenous people, community, or tribe, individually and collectively, according to their practices or institutions. once identified, indigenous people will be able to determine if they would like to live in solitary confinement (or not), living freely, depending on their culture (paredes peñafiel 2020). consequently, member states must adopt suitable measures and policies with full knowledge and participation of indigenous women and organizations to recognize, respect, and protect their right to life and their individual and collective integrity17. implying, necessarily, the explicit prohibition of any activity that could be considered as genocidal practice or attempted extermination of this population18. 13 it is essential to consider indigenous women’s worldview and the concept of their rights and welfare, just as the forms of violence and discrimination against them. the definition of the substance of indigenous women’s rights encompasses what is stated in international instruments and the way indigenous women understand and express the implementation of these instruments in their experience. 14 in its jurisprudence, the iacthr has reiterated the entire interdependent interrelated nature of all human rights. these principles appear in the instruments that regulate the effectiveness of the inter-american system of human rights and the universal system of human rights, applicable to the signatory states of the americas. 15 violence against indigenous women should be perceived as an attack against them individually and as harm to the collective identity of the communities to which they belong. besides, it is a form of spiritual violence. consequently, this reasserts indigenous women and their communities suffer the impact of violence in a very particular way. 16 article ix of the american declaration on rights of indigenous peoples. 17 article xxvi of the american declaration on rights of indigenous peoples. 18 article xi of the american declaration on rights of indigenous peoples. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 29 the recognition of the indigenous women's legal status also requires respect for the indigenous peoples' right to self-government on issues related to domestic or locals’ affairs, as well as their right to fund their autonomous functions19. this (self)-government controls, necessarily, the territory traditionally possessed, occupied, used, or acquired20, throughout a spiritual, cultural, and material relation. moreover, this (self)-government assumes its duties to preserve the territory and to (self)-manage its resources -considering as property owners either this population or their generations to come-21 (puelo 2019). as for indigenous, native, or tribal women, oas member states must recognize the full enjoyment of their civil, political, economic, social, and cultural rights, just as their right to maintain their cultural and spiritual identity, religious traditions, worldview, and values22. besides, they must protect their sacred sites, places of worship, and all human rights reflected in the national or international legislation23. to do this, member states should provide effective remedies, including legal remedies for the compensation of collective or individual rights. 3.2. duty of prevention all the members of indigenous communities have the right not to be a target of racism, race discrimination, xenophobia, or other forms of intolerance24. to guarantee their right to no discrimination, states should work together with indigenous people (including women) to adopt necessary measures to prevent and eradicate all forms of violence and discrimination, especially against women and indigenous children25 (stavenhagen 2006). moreover, the american declaration on the rights of indigenous peoples also anticipates two specific prevention duties against a possible abusive practice that affects the indigenous, tribal, or native women. the first of these considers that state members should take measures to prevent and ban the fact that indigenous women may be the target of an investigation, biological or medical experimentation programs, and sterilization without previous and informed consent. additionally, it considers that state members should respect their right to access their data, medical records, and investigation documents conducted by individuals and private or public institutions26. the second specific duty compels member states to adopt all immediate and effective measures to eliminate any labour exploitation of indigenous peoples, in particular, indigenous children, women, or elders27. 19 article xxi of the american declaration on rights of indigenous peoples. 20 article xv of the american declaration on rights of indigenous peoples. 21 article xxv of the american declaration on rights of indigenous peoples. 22 to delve into the issue, see fernández míguez, s. & faundes peñafiel, j. j. (2019). “emergencia de las mujeres indígenas en américa latina. debates sobre género, etnicidad e identidad cultural”, in revista chilena de derecho y ciencia política, vol. 10, nº. 2, pp. 53-96. 23 article xxxi ss of the american declaration on rights of the indigenous peoples. 24 article xx of the american declaration on rights of the indigenous peoples. 25 article vii.3. of the american declaration on rights of indigenous peoples. 26 article xviii of the american declaration on rights of indigenous peoples. 27 article xxvii of the american declaration on rights of indigenous peoples. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 30 this last duty, which prevents all practices considered as hard labour or slavery, is completed with the imposition of labour duties, namely: the duty to protect indigenous workers or employees in recruitment under fair and equal terms of employment, in formal or informal work systems; imposition, implementation, and improvement of labour inspections with special attention in regions, companies or work activities in which indigenous employees are involved. with all these measures, the government pretends member states to encourage indigenous peoples' jobs, guaranteeing that they are informed about their rights as employees according to applicable legislation. 3.3. duty of indigenous women’s protection state members concede that violence against indigenous peoples, especially against women, obstructs or prevents the full enjoyment of all human rights and fundamental freedoms28. consequently, states must adopt jointly with indigenous peoples necessary measures to prevent and eradicate all forms of violence, in particular against indigenous women and children. violence against women is understood to mean any action or conduct based on gender that causes death, harm, or physical, sexual, or psychological pain in the public or private sphere29 (figueroa romero & burguete cal y mayor 2017). the iachr considers spiritual and obstetric violence as a form of violence against women, banned for the convention of belém do pará. obstetric violence encompasses situations of disrespectful, abusive, negligent treatment, or denial of treatment during pregnancy, childbirth, and postpartum period in public and private health centres. this violence may be present at any moment during maternal health services through actions such as refusal to provide complete information about her health and treatments; indifference to pain; verbal humiliation; forced or coerced medical procedures; sexual, physical, or psychological forms of violence; intrusive process; unnecessary use of medication, among other actions. spiritual violence manifests itself when acts of violence and discrimination against indigenous women impact those women individually and the collective identity of the communities to which they belong. 28 article vii of the american declaration on rights of indigenous peoples. 29 article 2 of the inter-american convention on the prevention, punishment, and eradication of violence against women “convention of belém do pará”. “violence against women shall be understood to include physical, sexual and psychological violence: a. that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, battery and sexual abuse; b. that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and c. that is perpetrated or condoned by the state or its agents regardless of where it occurs”. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 31 3.4. duty of special attention in armed conflicts according to international humanitarian law30, indigenous, women have the right to receive special protection that guarantees their security in situations or periods of domestic or international armed conflict. this is due to the situation of special vulnerability in which women find themselves in this type of situation (before possible physical attacks that usually lead to rapes and mass murders). therefore, following international agreements, states should take every appropriate measure to protect the human rights, institutions, lands, territories, and resources of indigenous women and their communities in case of armed conflict. furthermore, the american declaration on the rights of indigenous peoples establishes obligations that member states must not do. in this sense, they will not be able to develop military activities in indigenous territories unless it is justified on the grounds of the public interest or it may be settled with interested indigenous peoples. either they will not be able to draft any indigenous child or teenager into their armed forces -under any circumstances-. moreover, they will indicate to state authorities how they should act in case of an armed conflict that affects, directly or indirectly, their territory, lands, resources, or people. in conclusion, they should take effective remedies for all the damages and prejudices caused by the conflict, and they should guarantee the right to access justice, protection, and adequate remedies for all the damage caused to the victims31. 3.5. duty to guarantee adequate access to justice and due diligence in the development of the investigation articles 8 and 25 of the american convention of human rights, article xvii of the american declaration of the rights and duties of man, and article 7 of the convention of belém do pará establish that women have the right to appeal a judicial remedy to guarantee the proper procedure when they report human rights violations. they also establish the states' obligation to act diligently to prevent, investigate, judge, penalize and provide a remedy in these cases. the inter-american court of human rights establishes in some sentences that every victim of human rights violations has the right to an investigation to clarify the facts and responsibilities. in that regard, inter-american court's sentence to rio negro and dos erres massacres displays that the right to access to justice must guarantee, in a reasonable period, the victims' and relatives' right to a full investigation to clarify the facts and demand accountability. the commission has recognized four guiding principles related to the duty to act with due diligence for states in case of violence against indigenous women. to begin with, the commission establishes that the state could incur international responsibility for failure to act with due diligence to prevent, investigate, penalize and 30 including the fourth geneva convention (1949) related to the due protection to civil people in times of warfare, and protocol ii (1977) related to the protection of victims of non-international armed conflicts. 31 article xxx of the american declaration on rights of indigenous peoples. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 32 provide a remedy to violence against women. besides, this duty applies to all acts of violence committed by individuals in some circumstances32. then, the commission establishes that the state should recognize the connexion between discrimination, violence against women, and due diligence, which involves the duty to take measures to tackle and respond to violence against women, just as to prevent the discrimination that perpetuates this problem. the state should adopt measures to modify women's and men's patterns of social and cultural behaviours. besides, it should adopt measures to eliminate prejudices and consuetudinary practices based on the premise of inferiority or superiority of gender and stereotyped roles imposed on women and men33. next, the commission recognizes a connexion between the duty to act with due diligence and the obligation of the state to guarantee access to adequate legal resources for violence victims and their relatives.34. finally, the commission analyses how some women groups take a particular risk to suffer violent acts due to intersectional forms of discrimination to which girls and women from some ethnic, racial, and otherwise groups are exposed. in these cases, the state should consider this factor to adopt prevention measures for all forms of violence35. 3.6. duty to penalize and repair the damage caused in their latest decisions, the commission and the inter-american court of human rights analyse and include reparations with a transformative approach requiring that the state address inequality and structural discrimination affecting all women, including indigenous women. according to special rapporteur on violence against women36: “interventions that seek only to ameliorate the abuse and which do not factor in women’s realities are not challenging the fundamental gender inequalities and discrimination that contribute to the abuse in the first place.” in legal precedents about transformative reparations, the inter-american commission and the court have emphasized state members' duty to eliminate discrimination 32 see e.g. inter alia, jessica lenahan et al. (united states), claudia ivette gonzález et al. (mexico). admissibility reports and substantive reports. 33 jessica lenahan et al. (united states). case no.12.626, 21 july 2011. 34 see e.g., jessica lenahan et al. (united states) & maria da penha maia fernandes (brasil). admissibility reports and substantive reports 35 see e.g., jessica lenahan et al. (united states). substantive reports. 36 united nations, report of the special rapporteur on violence against women, its causes and consequences, rashida manjoo, a/hrc/17/26, 2 may 2011, para. 31. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 33 in all internal legal systems. in some decisions, the inter-american commission and the court have explicitly recognized the need to restructure social stereotypes of gender and to adopt educative and training programs with a gender perspective and legislative and institutional reform with a transformative approach.37. 4. leading cases before the inter-american system of human rights: the implementation of collective rights to individual petitions through different mechanisms, the inter-american commission has systematically received reports that reflect the seriousness of the indigenous women's human rights situation in the american continent. to respond to this situation, the commission has considered different instruments such as hearings, thematic and national reports, press releases, working visits, and individual petitions, among others. in the mentioned hearings, different states, indigenous women, civil society organizations, and experts have informed the inter-american commission about the significant situation of discrimination faced by indigenous women in the american continent in different fields such as health care, property ownership, education, employment, and political participation (galafassi & riffo 2018). they have also informed the commission about the different forms of violence against indigenous women, identifying two important needs: on the one hand, an interconnected and culturally appropriate approach for the processing of violations of indigenous women's human rights; on the other hand, a response from all state sectors to the problems they deal. the commission's thematic and national reports have documented different violations of indigenous women's human rights in the americas. most of these reports are the result of working visits in loco in different states and include the conclusions of many meetings between indigenous women, state authorities, victims, and civil society organizations. moreover, the commission has also considered, in reports on the merits, some individual petitions in which they report different violations of indigenous women's human rights see, e.g., inter alia, the case of ana, beatriz, and celia gonzález pérez v. mexico38 37 see e.g., inter alia, iacthr. gonzález et al. (“cotton field”) v. mexico; jessica lenahan et al. (united states); paloma angélica escobar ledezma (mexico); claudina velásquez paiz (guatemala); gladys carol espinoza gonzález (peru); ana teresa yarce (colombia); atala riffo and daughters (chile); artavia murillo et al. (“in vitro fertilization”) v. costa rica; veliz franco et al. (guatemala); fernández ortega et al. (mexico); rosendo cantú et al. v. méxico. 38 iachr, report nº 52/01, merits. ana, beatriz and celia gonzález pérez (mexico), april 4, 2001. a case regarding three tzeltal native sisters who were detained and interrogated by a group of military personnel for two hours in order to force them to confess their membership in the zapatista national liberation army (in spanish ejército zapatista de liberación nacional). the sisters, one of them was, at the moment, a child, were separated from their mother, beaten, and raped several times. in its final decision about the merits of the case, the commission considered sexual violence as torture and concluded that there was a violation of the sisters’ rights to humane treatment, to dignity, and to privacy. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 34 or the case of mary and carrie dann v. the united states39-. considering the commission's work as a "filter" where all petitions of the inter-american system reach, we will focus on a thematic study of the most notable case law of the inter-american court regarding the recognition and protections of indigenous women's human rights in the continent. 4.1. the recognition of slaughtered indigenous women in the case of plan de sánchez massacre v. guatemala40, the inter-american court of human rights recognized the existence of a domestic armed conflict between 1962 and 1996 that entailed a significant loss of human life and material resources in guatemala. based on the safeguard of national security, the army identified the members of the mayan people as "domestic enemies" as they deemed that they belonged to guerrilla forces, and they refused to participate in the civil defense patrols or patrullas de autodefensa civil (hereinafter ‘pac’). consequently, these people were victims of massacres and scorched earth operations that involved complete destruction of their communities, houses, livestock, harvests, and other elements of survival, their culture, the use of their own cultural symbols, their social, economic, and political institutions, their cultural and religious values and practices. sunday, 18th july 1982 a commando of roughly sixty military and patrol members arrived at plan de sánchez that mistreated, raped and executed defenceless inhabitants of the village. approximately 268 people, included children, were executed in the massacre. the commission and the representatives of the victims requested the court to describe the fact alleged by the victims as "genocide". the court replied that in adjudicatory matters "it is only competent to find violations of the american convention on human rights and of other instruments of the inter-american system for the protection of human rights that enable it to do so". nevertheless, the court notes that "facts such as those stated which gravely affected the members of the maya achí people in their identity and values and that took place within a pattern of massacres, constitute an aggravated impact that entails international responsibility of the state, which this court will take into account when it decides on reparations"41. 39 iachr, report nº75/02, merits, mary and carrie dann (united states), december 27, 2002. this case addresses several rights of two western shoshone indigenous people sisters: the right to equality, a fair trial, and property of ancestral lands. the petitioners argued that the state has interfered with their use and occupation of their ancestral lands. they also contend that the state has appropriated the lands as federal property through an unfair procedure before the indian claims commission. the inter-american commission has concluded that the state should resolve land claims. moreover, it has also indicated that the dann sisters did not have the opportunity to appeal to the court in order to request the protection of their right to property under conditions of equality and considering the collective and individual nature of their claim. both actions contravened the american declaration of the rights and duties of man. 40 inter american court of human rights. case of plan de sánchez massacre v. guatemala. judgment of april 29, 2004. 41 ibid, para. 51. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 35 another matter of similar nature is mapiripán massacre v. colombia42 that stated that in july 1997, one hundred members of the autodefensas unidas de colombia (auc), led by members of the army, surrounded and took control of the town, of communications, and of the public offices, and intimidated, tortured and murdered their inhabitants. even though they filed appeals, state authorities did not conduct great research or penalize the perpetrators. in this case, the inter-american court noted, as the european court of human rights did too, that human rights treaties are live instruments, whose interpretation must go hand in hand with evolving times and current living conditions. this evolutive interpretation is consistent with general rules of interpretation guaranteed in article 29 of the american convention, just as those set forth in the vienna convention on treaty law. in this sense, the obligation to respect the right to life of every person takes on special aspects in the case of children and women43. thus, it becomes an obligation to "prevent situations that might lead, by action or omission, to their encumbrance". therefore, the court deems that the state did not create the conditions or did not take the necessary actions so that boys and girls have and develop a decent life, but rather exposed them to a climate of violence and insecurity. this doctrine is restated and developed in the case of the yakye axa44 indigenous paraguayan community, whose population is estimated at 300 individuals. at the end of the 19th century, great areas of lands of the paraguayan chaco were sold to british businessmen and the anglican church established several missions in the region. new settlers began to exploit livestock businesses where they offered a job to the indigenous community members. in early 1986, the members of the yakye axa indigenous community moved to another land due to their bad living conditions on the cattle ranches. nevertheless, this did not improve their living conditions. thus, in 1993, community members decided to begin procedures to claim the lands that they consider their traditional habitat. they filed several appeals, but they were not succesful. since 1996, some yakye axa community members have settled in a side of a road. between 28 and 57 families are estimated to live in this place. the rest of the community members dispersed among other villages. in this case, the commission wonders whether paraguay is responsible for the death of several members of the yakye axa community due to causes that could have been avoided with 42 inter american court of human rights. case of the “mapiripán massacre” v. colombia. judgment of september 15, 2005. 43 in the line of thought of de paz gonzález, i. (2022). mujeres en el sistema interamericano. sobrevivientes y constructoras de la jurisprudencia progresista. méxico, tirant lo blanch, colección justicia interamericana, passim. more transversally, this author has also worked on the issue in cruz ángeles, j. (2022b). “las obligaciones estatales en materia de reconocimiento y protección de las mujeres indígenas, autóctonas o tribales en las américas”. in: m. a. martín lópez (coord.) desafíos, necesidades y oportunidades para el mundo rural. la llamada a la aplicación de los derechos de los campesinos y otras personas que trabajan en el ámbito rural. madrid, spain: dykinson, passim. 44 inter american court of human rights. case of the yakye axa indigenous community v. paraguay. judgment of june 17, 2005. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 36 adequate food and medical care, and as a consequence of the lack of an appropriate and convenient response by the state to the community's claim to its ancestral land. in this way, inter-american court found out the violation of the right to life, based on the fact that "the state did not provide the conditions or take the necessary measures so that women, children and elderly could have and develop a decent life", but rather exposed them to "a climate of violence and insecurity". the court added that "it did not have sufficient evidence to establish the causes to these deaths". in a more recent case (2012)45, the guatemalan army has been again accused of causing more than 500 deaths between 1962 and 1996. the massacres involved in this case were perpetrated on the 4th of march 1980 in rio negro 46chapel, on the 13th of february 1982 in the village of xococ47, on the 13th of march 1982 on cerro pacoxom48, on the 14th of may 1982 in los encuentros49 and on the 14th of september 1982 in agua fría50. people, who escaped from these massacres, took shelter in the mountains for a couple of years, deprived of their possessions, sleeping outdoors and constantly moving to escape from the soldiers and patrols that followed them. moreover, rio negro community members have several problems finding food, just as children and adults died of starvation due to crops destruction caused by the army and the patrols. some women had to give birth in the mountain, and they could register them later under fake dates and birthplaces to protect them. when the amnesty law of 1983 came into force, some survivors of the massacres were resettled by the government in the pacux colony. their living conditions were very precarious, and lands were inadequate for subsistence farming. moreover, this resettlement entailed the loss of the community's connection with their culture, natural resources, properties and maya achi language. the inter-american court deems that states authorities should have opened a reliable, lawful and effective investigation ex officio and promptly of the massacre and not only of the violation of the right to life. moreover, the court confirms that the living conditions in pacux colony have not allowed the inhabitants to restart their traditional economic activities and that they had to participate in economic activities that do not provide them with stable incomes. consequently, this situation contributed to the disintegration of the social structure and their cultural and spiritual life. these bad living conditions and general abandonment cause a suffering that affects necessarily their mental and moral integrity. therefore, the court established the following reparations: 45 inter american court of human rights. case of the río negro massacres v. guatemala. judgment of september 4, 2012. 46 on march 4, 1980, seven rio negro community leaders were executed, another two leaders were also executed the same day. 47 on february 13, 1982, approximately 70 persons of the rio negro community (men, women and children) 48 on march 13, 1982, patrollers and soldiers dug a mass grave and proceeded to kill the rio negro people present. their corpses were thrown into a mass grave. during the massacre, patrollers and soldiers chose seventeen rio negro community children who were forced to live with members of the xococ community. 49 in the massacre of may 14, at least 79 people were killed. 50 on september 14, at least 92 people were killed. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 37 (1) the sentence itself, (2) a reliable and effective investigation intended to judge and, eventually, penalize the perpetrators, (3) an effective search for the whereabouts of the victims forcibly disappeared, (4) publications of the sentence in spanish and maya achi language, (5) acknowledgment of international responsibility, (6) infrastructure projects and essential services for rio negro community members, (7) design and implementation of a project to rescue the maya achi culture, (8) medical and psychological treatment to the victims and (9) compensations. 4.2. enforced disappearance investigation in several countries in the americas, enforced disappearance of persons has been a state practice during periods of domestic armed conflicts, undertaken mainly by law enforcement agents. they arrested insurgency movements members or persons entailed to be prone to the insurgency. they held them, prisoners, underground without notifying any appropriate, independent, or impartial authority, tortured them physically or psychologically to obtain some information, or even caused their death. we found early records related to enforced disappearances in cases such as, inter alia, véliz franco v. guatemala51, serrano-cruz sisters52 v. el salvador or velásquez rodríguez v. honduras53. although, the most emblematic case is undoubtedly tiu tojín v. guatemala54 related to a report of an indigenous women's disappearance. this case concerns the international responsibility of the state for maría tiu tojín and her daughter's enforced disappearances, just as the lack of investigation and sanction of the perpetrators. the facts of this case started on the 29th of august 1990 when officers of the guatemalan army along with civil defence patrols arrived at santa clara, municipality of chajul, where they arrested 86 inhabitants. this community comprises a group of displaced families that sought refuge in the mountains as a resistance to the guatemalan army's strategies against the displaced population during domestic armed conflict. among the detained people were mrs. maría tiu tojín, 27 years old, and her daughter josefa, one month old, who belonged to the maya ethnic group. maría tiu tojín was a member of organizations that promoted the non-participation of the civil selfdefence patrols during the domestic armed conflict. the 86 detainees were transferred to the military base in the santa maría nebaj. in this place, maría tiu tojín and her daughter were seen for the last time. despite of the number of appeals filed requesting investigations and sanctions to the perpetrators, they have never been carried out. 51 inter american court of human rights. case of maría isabel véliz franco v. guatemala. judgement of may 19, 2014. 52 inter american court of human rights. case of serrano-cruz sisters v. el salvador. judgement of september 9, 2005. 53 in this case, a student at the national autonomous university (in spanish ‘universidad nacional autónoma’) disappeared on september 12, 1981 in a parking lot in downtown tegucigalpa. he was kidnapped by several heavily armed men in civilian clothes and using a vehicle without license plates. despite several complaints were filed, state authorities did not start the appropriate investigations. 54 inter american court of human rights. case of tiu tojín v. guatemala. judgment of november 26, 2008. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 38 as it has been documented in other cases of similar nature55, armed conflict creates a scenario propitious for exposing the population to a variety of violations. moreover, the guatemalan system of administration of justice proved to be ineffective in warranting law enforcement and protection of victims' and relatives' rights. thus, the lack of investigation constitutes a determining factor in the systematic human rights violations. from its first sentence in the case velásquez rodríguez, the inter-american court reaffirmed that the enforced disappearance constitutes an unlawful act of a permanent nature that violates multiple legal norms. in this sense, it results in arbitrary deprivation of liberty and puts the detainee's identity, security, and her or his life at risk. thus, articles ii and iii of the inter-american convention on forced disappearance of persons56 enshrine this nature of the enforced disappearance. considering the nature of the rights violated. the inter-american convention established that forced disappearance constitutes a serious violation of non-derogable human rights, a major abandonment of essential founding principles of the inter-american system. moreover, forced disappearance in the case of tiu tojín was part of a pattern of massive and systematic violations of human rights committed in a domestic armed conflict in detriment of some groups of the population in guatemala. as such, this disappearance has particular consequences regarding to the obligation to guarantee the human rights protected under the american convention of human rights57. 55 this court has issued a judgment in six guatemalan cases related to nine massacres committed during an armed conflict and perpetrated against these sections of the population by members of the guatemalan army. namely, the plan de sanchez, dos erres, rio negro massacres, residents of the village of chichupac and neighbouring communities, municipality of rabinal massacre, case of coc max et al. (xamán massacre), and the village of los josefinos. 56 the inter-american convention on forced disappearance of persons. article ii. “for the purposes of this convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees” article iii. “the states parties undertake to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity. this offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined. the states parties may establish mitigating circumstances for persons who have participated in acts constituting forced disappearance when they help to cause the victim to reappear alive or provide information that sheds light on the forced disappearance of a person.” 57 the inter-american court recognizes the international responsibility of states under the terms set forth in the paragraphs 12 to 23 of the judgment and has determined that the state was responsible for violating the rights enshrined in the articles 4.1, 5.1 and 5.2; 7.1, 7.2, 7.4, 7.5 and 7.6; 8.1 and 25.1 of the inter-american court of human rights, related to article 1.1 of the same treaty and to article i of the inter-american convention on forced disappearance of persons, detrimental to maría tojín. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 39 4.3. prevention of feminicide this casuistry is defined in the context of high-level violence against women and children and impunity by its perpetrators58. in the case of véliz franco et al. v. guatemala59, the pattern of violence included the brutality against the victim(s), the signs of sexual abuse, the mutilation of the corpse, and the kidnappings before the murder, confirming the disproportionate cruelty against the victims60. maria isabel véliz franco was fifteen years old at the time of her death. she lived with her family, and during school holidays, she worked as a warehouse clerk. after her disappearance, the victim's mother reported to the authorities that a warehouse co-worker claimed to have seen how they forced her daughter to climb into a vehicle. nevertheless, any positive results were not found in the official investigations61. the inter-american court indicated that the duty to guarantee encompassed all these legal, political, administrative, and cultural-related measures that promote the safeguard of human rights. besides, these measures guarantee that possible violations would be considered an illegal act which, per se, could lead to sanctions for the perpetrators, just as the obligation to compensate their victims. the obligation to prevent is of means or behaviour, and its breach is not proven merely because of a violated right. nevertheless, the court pointed out that there are two key moments in which the duty of prevention should be analysed: before the alleged victim's disappearance and the investigation before the location of the corpse. considering the first one, the court deemed that the possible lack of prevention of disappearance does not entail per se the international responsibility of the state because, although the state knew or should know the increase of violent acts, above all against women and children, it has not been established that the state was aware of the real and prompt risk for the victim. considering the second key moment, we should clarify whether, under the 58 as an example of the context of violence suffered by indigenous women throughout the continent, see, inter alia, “missing and murdered indigenous women in british columbia, canada”. report of the interamerican commission on human rights, december 31, 2014, available at: https://www.oas.org/en/iachr/ reports/pdfs/indigenous-women-bc-canada-en.pdf 59 inter american court of human rights. case of veliz franco v. guatemala. judgment of may 19, 2014. 60 in guatemala, figures provided indicate that between 2000 and 2011, there was a gradual increase of violent deaths of women. just between 2001 and 2004, 1.188 murders of women were registered and the increase in the growth rate of these murders was almost twice as high as that of the men murders. this pattern of violence was connected to a context of women discrimination in guatemala. moreover, this context was replicated in the investigation where authorities used to discredit and blame the victims for their lifestyle or clothes. 61 the victim’s mother alleged that there was a discriminatory bias in the investigations. according to her statement, the criminal investigations experts in charge of the case nicknamed her daughter “la loca”, referring to aspects of her clothes, her social life and her night life, and her religious beliefs. they also considered as a motive for her death the “possible infidelity in the case of a boyfriend”. moreover, when her mother went to the prosecutor’s office to know the progress made in the investigations, they told her that her daughter was killed because she was a prostitute and they laughed at the case. https://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf https://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 40 particular circumstances of this case and its context, the state was aware of the existence of a real and prompt risk of aggression for maría isabel, and whether, consequently, there was an obligation of due diligence that entails exhaustive research. in particular, early and prompt action by police, prosecution, and legal authorities are essentials to provide the appropriate and necessary measures to determine the victim's whereabouts. moreover, appropriate procedures for denunciations are necessaries as well as effective investigations in the early hours. authorities should presume that the missing person is alive until they end the uncertainty about its disappearance. this doctrine is (re)affirmed and developed in the case gonzález et al. v. mexico also known as the case "campo algodonero"refers to the state's international responsibility due to the lack of diligence in the investigations related to the disappearance and death of claude ivette gonzáles62, esmeralda monreal63 and laura bernice ramos monárrez64. their corpses showed signs of sexual violence. it was established that the three women were deprived of liberty before their death. despite the actions brought by their relatives, there was no investigation or sanction for the perpetrators. considering the obligation of prevention, it is alleged that the states must adopt comprehensive measures to comply with due diligence in case of violence against women. in particular, they should have a proper judicial framework of protection, its effective implementation, a prevention policy, and practices that allow the effective action to reports. the prevention strategy must be comprehensive to prevent risk factors and strengthen institutions to provide an effective response to cases of violence against women. moreover, states should adopt measures of prevention in specific cases in which it is evident that some women and girls could be violence victims. in addition, as we have studied in previous sections, to all these obligations set forth in the american convention, in cases of violence against women, states have the obligation set forth in the convention of belém do pará. 4.4. towards the protection of indigenous women’s honour and dignity article 11 of the american convention on human rights65 recognizes that "everyone has the right to have his/her honor respected and his/her dignity" and prohibits "unlawful attacks on his/her honor or reputation". moreover, this precept suggests a 62 claudia ivette gonzález, worker at a “maquiladora” industry, was 20 years old when she disappeared on october 10, 2001 63 esmeralda herrera monreal, who worked as a maid, was 15 years old when she disappeared on october 29, 2001. 64 laura bernice ramos monárrez, a seventeen-years-old student, disappeared on september 22, 2001. 65 american convention on human rights (pact of san jose). article 11. right to privacy. “1. everyone has the right to have his/her honor respected and his dignity recognized. 2. no one may be the object of arbitrary or abusive interference with his/her private life, his/her family, his/her home, or his/her correspondence, or of unlawful attacks on his/her honor or reputation. 3. everyone has the right to the protection of the law against such interference or attacks.” (author’s translation to integrate an inclusive language) jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 41 broader content, "non-susceptible to exhaustive definitions"66, related to private life that can encompass issues as private as the protection of residence, communications, or even sexual orientation and gender identity. based on this premise, in a recent court decision, the iacthr stated that privacy: "include, among other dimensions, the freedom to make decisions related to various areas of person's life, a peaceful personal space, the option of reserving certain aspects of private life, and control of the dissemination of personal information to the public". the court doctrine concerning the right to private and family life is still at an early stage if we compare it to the development of jurisprudence in other areas of law within the framework of advisory opinions and contentious cases (cruz ángeles 2018). nevertheless, we observe systematically the development of its content and its scope from its decision in the case of the ituango massacres67. since then, several cases, that include the violation of this right, have arrived at the court. among them, we can emphasize the case of rosendo cantú et al. v. mexico68, considering the subject of our survey. this case describes how a significant percentage of the population belongs to indigenous communities that preserve their traditions and cultural identity and live in marginalized municipalities with a high level of poverty. valentina rosendo cantú is an indigenous woman that belongs to méphaa indigenous community in the state of guerrero. in 2002 when she was 17 years old, she was in a stream near her home. when she was about to bathe, eight soldiers, accompanied by a detained civilian, approached her and surrounded her. two of them questioned her while another one aimed the gun at her. he hit her in the stomach, causing her to fall to the ground. then, they took off her skirt and her underwear, and one of them sexually penetrated her. when he finished, another soldier, who questioned her, proceeded to do the same. both, valentina rosendo cantú and her husband, filed a series of appeals, requesting an investigation to identify and penalize the perpetrators. nevertheless, the investigation was submitted to the military jurisdiction, and they closed the case. the inter-american court considered that the rape of mrs. rosendo cantú violated values and essential aspects of her private life, representing an intrusion in her sexual life69. 66 inter american court of human rights. case of fernández ortega et al. v. mexico. preliminary objections, merits, reparations, and costs. judgment of august 30, 2010. series c no. 215, para. 129. and inter american court of human rights. case of rosendo cantú et al. v. mexico. preliminary objections, merits, reparations, and costs. judgment of august 31, 2010. series c no. 216, para. 119. as a result of the adaptation of the european convention on human rights as regards pact of san jose -or the american convention on human rights-, it seems curious how article 11 is titled “protección de la honra y de la dignidad” in the spanish version of the american convention while the english version kept the explicit reference in its title: “right to privacy”. 67 inter american court of human rights. case of the ituango massacres v. colombia. judgment of july 1, 2006. 68 inter american court of human rights. case of rosendo cantú et al. v. mexico. judgment of august 31, 2010. 69 ibid, considerations of court, para. 7. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 42 this doctrine is confirmed in the case of inés fernández ortega et al. v. mexico70. she also resided at the state of guerrero, and, at the time of the facts, was twenty-five years old. in 2002, mrs. fernández ortega was at home with her four children, when a group of approximately eleven soldiers, wearing uniforms and armed, came into her house. one of them grasped her hands and, pointing her with his gun, told her to lie on the ground. once she was on the ground, another soldier raped her while the other two observed the scene. she filed a series of appeals to investigate and penalize the perpetrators. state authorities ignored her complaints, and, finally, her case was submitted to the interamerican court. the court established that the residence and the right to private and family life are intrinsically connected since the residence becomes a space where private and family life can evolve freely. regarding the rape, the court reiterated that article 11 (related to "protection of honour and dignity") deems the protection of indigenous women against sexual assaults and rapes, annulling her basic bodily functions and her ability to decide freely (rodríguez 2008). the settled jurisprudence of the court on sexual assaults considered the absence of people, beyond the victim and the aggressor(s), at the moment of the aggression, among other characteristics. thus, considering the nature of this type of violence, graphic or documentary evidence is very difficult to find. that's why, victim' statement constitutes essential evidence for the case. therefore, the lack of medical evidence cannot diminish the veracity of the alleged victim' statement. moreover, in these cases, it is vital that obstetrician–gynaecologists reports should be done in the first 72 hours. 5. conclusions historically, indigenous women have suffered double discrimination: ad intra and ad extra. initially, her own community limited her responsibilities to tasks related to motherhood and home care. in this area, it is important to highlight how we obviate their importance as a vehicle of cultural identity. envisage, for instance, a native craftsmanship practice, the inheritance process of culinary recipes, and the learning process of an endangered language or dialect. that is why we need to deconstruct the indigenous woman's identity, namely: analysis and acknowledgment of the native woman's creation and transmission of cultural identity: contribution to the creation of a new narrative around her figure, and promotion of her inclusion in spaces for politic participation beyond the domestic sphere. starting from the recognition of their value in their communities, the american states must integrate them and hear their voices in the processes of self-determination, as well as recognition of the economic, social, and cultural rights of their communities. to do this, state authorities should run pre-informed consultation, culturally appropriate, and in 70 inter american court of human rights. case of fernández ortega et al. v. mexico. judgment of august 30, 2010. jonatán cruz ángeles the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 43 good faith with indigenous people authorities to reach agreements, including indigenous women and girls in these procedures. thus, we can take into account their own demands and make visible their real needs. indigenous women's recognition and protection should be considered a cornerstone of state politics on equality and non-discrimination as a response to this double intersectional discrimination against them. after all, we cannot forget that indigenous women are not the only ones who experienced structural discrimination related to possible state authorities' abuses, but also the community can also experience this abuse. the inter-american commission and court have already addressed the issue of discrimination against indigenous women, especially when there were external attacks or interference. if we review the case law, we can observe that a procedure of victims' recognition and protection is in the earliest stage. there is an essential protection of their lives and physical integrities against "massacres" or coordinated military attacks against an indigenous community. nevertheless, this protection can also be extended into more specific contexts, such as the forced disappearance of persons. therefore, on the one hand, we need to define the concept and typology of "feminicide"; on the other hand, we defend the establishment of effective procedures to prevent, research the facts and compensate the victims against possible attacks. however, beyond abuses or external interference, what is it about indigenous women's discrimination in their community, people, or tribe that no one is addressing? on this matter, we should emphasize that the complexity of the cultural construction of gender in indigenous people is still an unexplored issue in scientific literature. in general, studies related to gender relations and the unequal situation of women kept them hidden. consequently, the available information is inadequate to plan and implement well-founded public politics. although women's structural subordination against men exists in almost all societies (including indigenous people organized on kinship), distribution of power and female and men roles are different according to the combination of descent, marriage, and residence rules. these rules structure social relations and determine domestic units' rights of representation, heritage, access to productive assets, health and reproduction issues, education, and migration, among others. thus, we should go beyond the indigenous women's concept of "victim". therefore, state authorities and indigenous authorities must coordinate and support a process of empowerment and conquest of public spaces. as we achieve this objective, the (new) indigenous woman's legal status will demand the recognition and protection of several civil and political rights. among them, we should highlight the absence or the lack of a deeper jurisprudential development regarding the protection of their right to honour and dignity -apart from possible episodes of violence and sexual assaultor, in other words, the development of the recognition and protection of their private and family life. accordingly, indigenous women will remain part of their community, and, as women, they must start taking their place as effective members of their societies. progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights 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(2019). “la relectura de la historia, un arma de lucha de las mujeres indígenas” in revista de la facultad de derecho y ciencias políticas – unsaac, vol. 4, nº. 11, pp. 197-204. https://doi.org/10.51343/rfdcp.v4i11.147 stavenhagen, r. (2006). “los derechos de los pueblos indígenas: esperanzas, logros y reclamos”, in m. berraondo (coord.), pueblos indígenas y derechos humanos, bilbao, universidad de deusto, pp. 21-28. received: may 22nd 2022 accepted: october 1st 2022 https://doi.org/10.25009/cpue.v0i25.2533 https://doi.org/10.2307/j.ctt5vkf9b.14 https://doi.org/10.51343/rfdcp.v4i11.147 progress and challenges for the recognition, protection and promotion of indigenous women’s human rights in the inter-american system the age of human rights journal, 19 (december 2022) pp. 23-46 issn: 2340-9592 doi: 10.17561/tahrj.v19.7146 46 annex i. percentage of indigenous citizens over total population -by country in america(2021) source: designed by phd. javier serrano lara, member of the department of geography at universitat de valència (spain). progress and challenges for the recognition, protection and promotion of indigenous women’s huma abstract 1. introduction 2. inter-american standards of protection for indigenous women as members of a group or collectiv 3. international-legal duties of the organisation of american states’ members 3.1. duty to recognize the indigenous peoples 3.2. duty of prevention 3.3. duty of indigenous women’s protection 3.4. duty of special attention in armed conflicts 3.5. duty to guarantee adequate access to justice and due diligence in the development of the inv 3.6. duty to penalize and repair the damage caused 4. leading cases before the inter-american system of human rights: the implementation of collecti 4.1. the recognition of slaughtered indigenous women 4.2. enforced disappearance investigation 4.3. prevention of feminicide 4.4. towards the protection of indigenous women’s honour and dignity 5. conclusions 6. references annex i bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 1 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals daniel romera mejías1 waldimeiry correa da silva2 abstract: this study analyzes how the academic literature reflects and engages with the fight against human trafficking (ht) in the context of the sustainable development goals (sdgs). it adopts a two-pronged approach: examining how specialized literature addresses the un’s role in ht, and exploring the contribution of the sdgs. a bibliometric analysis using bibliometrix and biblioshiny was conducted on web of science articles. results show research is concentrated in western countries, revealing a need to boost capacity in affected regions. the thematic analysis highlights the relevance of governance, institutional frameworks and international cooperation. keywords: human trafficking, bibliometric analysis, sustainable development goals, united nations, human rights. 1. introduction human trafficking (ht) is a complex and multidimensional phenomenon that has captured global attention due to its severe implications for human rights and international security (obokata, 2005; gębska, 2020; correa da silva, 2022). this issue has been addressed by numerous international organizations, notably the united nations (un) and its sustainable development goals (sdgs). through various instruments and policies, the un has sought to eradicate human trafficking, recognizing its connection to governance and justice issues (mordeson and mathew, 2020; donmez, 2023). ht is internationally defined by the palermo protocol3, which typifies it as a complex and dynamic crime derived from the conjunction of three interrelated constituent 1 contract researcher at the department of international public law and international relations of the university of seville (dromera@us.es). orcid: 0009-0008-8284-4851 2 emergia distinguished researcher at the department of international public law and international relations of the university of seville (wcorrea@us.es). orcid: 0000-0002-1863-8454 3 protocol to prevent, suppress and punish trafficking in persons especially women and children, supplementing the united nations convention against transnational organized crime. adopted and opened for signature, ratification and accession by general assembly resolution 55/25 of 15 november 2000. article 3. use of terms. for the purposes of this protocol: “(a) “trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation”. https://doi.org/10.17561/tahrj.v25.9547 mailto:dromera@us.es https://orcid.org//0009-0008-8284-4851 mailto:wcorrea@us.es https://orcid.org//0000-0002-1863-8454 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 2 elements: an action; the means; and the purpose of direct or indirect exploitation of the person. this definition externalizes trafficking as a process that includes a movement of people4 in contexts of vulnerability for the purpose of exploitation. human mobility generally occurs in contexts of migration (regular or irregular), thus leading to the confusion with other legal categories, such as irregular migration, human trafficking or international refugee (correa da silva, 2022). the international definition of ht provided by the palermo protocol is not exempt from criticism, both for its complexity, derived from the understanding of trafficking as a process composed of three constituent and related elements and its wide scope (einarsdóttir and boiro, 2014). the palermo protocol does not include the behaviors that constitute the modality of trafficking, leaving to the discretion of the states the delimitation and classification of internal behaviors that define trafficking5. even with its lights and shadows, the international legal benchmark has consolidated the structuring of a global regime to confront ht that is related to different legal categories (it is not approached in isolation, but is interrelated with other phenomena and legal frameworks like irregular migration, refugee, asylum and trafficking), public and private actors and different approaches (public order / criminal policy, gender and human rights). the diversity of actors, types of regulations, institutions and different legal categories related to trafficking constitute a complex international regime (gómez-mera, 2016; alter and raustiala, 2018). for these purposes, the united nations recognize ht as a serious violation of human rights and highlights its harmful interaction with other abuses such as slavery, servitude, forced labor, violence against women, torture, inhuman and degrading treatment, as well as international illicit activities (correa da silva, 2021). the only bibliometric research found in an indexed journal about this topic examines in 2018 the research trends on ht using scopus database (sweileh, 2018). the study revealed a significant under-representation of health-related literature in the field of trafficking. additionally, sweileh found that the existing body of literature was predominantly focused on sex trafficking, rather than other forms of ht. the author emphasized also the importance of fostering research collaboration between networks in source and destination countries to enhance the understanding and effectiveness of efforts to combat ht. more than five years later it seems apt to review the existing literature about that issue, using a different database as it is web of science that provides a highquality database with high-impact journals, as well as robust analysis tools (chadegani et al., 2013). this article offers a targeted bibliometric mapping of how academic research has addressed human trafficking within the united nations and sdg frameworks. 4 ht involves the transfer of human beings from one place to another within the borders of the same country or abroad for the purpose of exploitation. see: https://www.unodc.org/documents/lpo-brazil/sobre-unodc/ fact_sheet_dados_trafico_de_pessoas_geral_esp.pdf 5 sources like ecpat uk and analyses from various legal experts point out that while the protocol outlines key elements like recruitment, exploitation and transportation, it leaves room for national discretion, particularly in how coercion, fraud or abuse of power are applied within each jurisdiction’s laws. see: https://yalelawandpolicy.org/sites/default/files/ylpr/6_silver_pe.12.2_336-383.pdf https://doi.org/10.17561/tahrj.v25.9547 https://www.unodc.org/documents/lpo-brazil/sobre-unodc/fact_sheet_dados_trafico_de_pessoas_geral_esp.pdf https://www.unodc.org/documents/lpo-brazil/sobre-unodc/fact_sheet_dados_trafico_de_pessoas_geral_esp.pdf https://yalelawandpolicy.org/sites/default/files/ylpr/6_silver_pe.12.2_336-383.pdf daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 3 the international community has responded to ht through various legal and policy frameworks, such as the aforementioned convention. since the entry into force of the palermo protocol, the united nations office on drugs and crime (unodc) has been responsible for coordinating actions and fight against ht in this area6. in addition, an extra-conventional follow-up mechanism has been established through the un repporteurship on trafficking in persons. this mechanism allows for continuous monitoring and independent evaluation of global anti-trafficking efforts, issuing reports, providing recommendations and facilizing international cooperation7. these instruments provide a foundation for international cooperation and the implementation of national strategies to combat trafficking (gallagher, 2010). with the adoption of the sdgs in 2015, the fight against ht was integrated into a broader framework of global development (gauci, 2020). the 2030 agenda underlines the importance of promoting the well-being of all, especially the most vulnerable groups such as women and children. the sdgs seek to achieve gender equality and protect women and children from violence, goals that are essential in the fight against ht (richie-zavaleta et al., 2021). both women and children are particularly vulnerable to trafficking, both in terms of sexual and labor exploitation (international labor organization, 2024). by focusing on these groups, the 2030 agenda aims to address the roots of inequality and exploitation, promoting fairer and more equitable development at the global level (richie-zavaleta et al., 2021). also, governance issues related with ht is also present at the 2030 agenda. by conducting an exploratory study of the sdgs, we can see that the issue of ht has been incorporated on four different occasions: 1) in paragraph 27 of the preamble, which states that “we will eradicate forced labor and ht and end child labor in all its forms” (united nations, 2015, p. 3); 2) in goal 5, target 5.2 (trafficking of women and children) (united nations, 2015, p. 20); 3) in goal 8, target 8.7 (decent work and economic growth) (united nations, 2015, p. 21); 4) in goal 16, target 16.2 (trafficking of children) (united nations, 2015, p. 28). nevertheless, there is no explicit mention of the tools for combating ht or forced labor, nor is there any indication of the means of policy implementation, leaving the matter of execution to the discretion of the states. these targets emphasize the need to strengthen institutions and improve governance to address the root causes of trafficking and ensure justice for victims (gómez gil, 2018). governance plays a crucial role in addressing collective problems such as ht, as it pertains to the way institutions, norms and processes are organized and operate to direct collective action (raymond et al., 2023). the effectiveness of policies and strategies against ht depends greatly on the quality of governance at the local, national and international levels. robust governance involves the presence of strong and transparent institutions, adequate legal frameworks, accountability mechanisms and effective coordination among various actors involved in prevention, protection, prosecution and redress (trapnell, 2011). 6 more about the unodc at https://www.unodc.org/unodc/en/index.html 7 more about the united nations special rapporteur in trafficking in persons at https://www.ohchr.org/en/ special-procedures/sr-trafficking-in-persons https://doi.org/10.17561/tahrj.v25.9547 https://www.unodc.org/unodc/en/index.html https://www.ohchr.org/en/special-procedures/sr-trafficking-in-persons https://www.ohchr.org/en/special-procedures/sr-trafficking-in-persons a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 4 in the context of global governance and ht, the concept of “complex regime” is central to understanding how the proliferation and overlap of international and national institutions and non-institutional actors influence global cooperation. gómez-mera (2016) defines it as a set of international institutions that overlap in their functional spheres, members and norms, without a clear hierarchical organization. this overlap can generate both challenges and opportunities, allowing for cooperative and forum-linking strategies, but also opportunistic strategies that can weaken cooperation. alter and raustiala (2018) expand on this concept, stressing that the contemporary international system is crowded space, with hundreds or thousands of international regimes that inevitably overlap and conflict. the interaction between states and other actors in this densely institutionalized environment offers a new conceptual lens for understanding international cooperation policy, in which the dynamics of competition and coordination are becoming increasingly complex and crucial to addressing challenges such as ht. studies have also shown that weaknesses in governance, such as corruption, lack of institutional capacity and insufficient resources, can significantly hinder efforts to combat trafficking (friesendorf, 2007). the inclusion of ht in the sdgs underscores the importance of good governance in achieving these objectives by emphasizing the need for rule of law, transparency, stakeholder engagement, human rights protection and data-driven decision-making to effectively combat trafficking and achieve broader development objectives (gauci, 2020). however, improving governance not only involves strengthening institutions and legal frameworks but also ensuring that there are adequate resources and political will to implement and enforce policies and programs aimed at eradicating ht (chuang, 2013). as we have mentioned above, the highly complex international environment makes it crucial to address these challenges through better policy harmonization, optimization of resources and strengthening international cooperation. chuang (2013) examines how the definition and policies against ht have expanded to include various forms of exploitation, a phenomenon the author terms “exploitation creep”. chuang highlights the role of the united states in shaping global norms, initially equating prostitution with trafficking during the bush administration and later broadening the definition to include labor exploitation under the obama administration. she critiques the criminal justice and victim rescue-focused approach as ineffective and advocates for a labor-based perspective that addresses the structural causes of trafficking through reforms in labor and migration policies. friesendorf (2007) utilizes the concept of security governance to analyze the effectiveness and shortcomings of strategies employed in europe to combat ht. the author outlines five key approaches within the anti-trafficking governance system: legal measures, prosecution, protection, prevention in countries of origin and prevention in countries of destination. despite some progress, the article highlights several pathologies within this system, such as the lack of comprehensive prevention programs, insufficient protection for victims and inadequate coordination among different actors involved. the study emphasizes the need for a more balanced and interconnected governance system to address ht more effectively, efficiently and justly. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 5 the previous paragraphs contribute to observe how academic research on the subject emphasizes the importance of both the formation of a complex regime on trafficking and the governance established within the framework of the united nations to address this transnational crime that causes massive human rights violations. in this sense, in order to contribute to combating the causes of ht, the issue is also included in the 2030 agenda. ht is an increasingly relevant issue for the international community and policy makers but also a truly complex issue. it combines human rights, migration, gender, race, labor, legal, social, economic and trasnational dimensions. for that reason, research on ht is multidisciplinary. to visualize how ht’s research examines the role of the un and the sdgs, we perform a bibliometric analysis of the academic literature on ht from 2000 to june 2024. the division into two levels of analysis has been made in order to achieve a deeper and more specific understanding of the connection between trafficking and the various international governance structures. first, it attempts to understand how the un and its different agencies have addressed ht in a broader and more diverse context. on a second level, it seeks to examine the impact of the fight against trafficking within the framework of the 2030 agenda, trying to observe how the inclusion of ht in the sdgs has influenced the promotion of multilevel governance since 2015, moving beyond the focus of other un bodies8. this analysis allows us to discover temporal, geographical and thematic trends and to identify the gaps research should address to better inform policy makers. although sweileh (2018) is often cited as the first bibliometric study on human trafficking, recent analyses have expanded the scope and thematic focus of this field. antolínez-merchán et al. (2024) offered a country-specific analysis of spanish academic production; gurpur et al. (2021) examined human trafficking in the context of natural disasters; and gonzalez et al. (2020) explored organ trafficking and migration. while these studies focus on specific geographic or thematic angles, the present article provides a broader overview of global academic production on ht, with a particular emphasis on its articulation within the united nations system and the sdgs framework (dimensions that remain underexplored in bibliometric terms). this work thus complements and contextualizes these prior contributions by offering a macro-level mapping of governance and policy-related research. this research aims to fill the gap in bibliometric studies on ht by examining the literature published in the web of science database in relation to the un and, specifically, the sdgs from 2000 to june 2024. the research focuses on definitional issues, typologies of ht, as well as trends in research themes and geographical distribution. therefore, this 8 it is important to clarify that this study does not assess the real-world impact of anti-trafficking policies or programs on sdg outcomes. rather, it provides a bibliometric and documentary analysis of how academic literature has framed, interpreted and thematized the relationship between ht and the sdgs within the global governance context. https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 6 study presents several research questions that contribute to the maturation of the ht body of knowledge: 1. what are the main areas and topics of current research in ht? 2. what are the main constructs that have been investigated in current research on ht and sdgs and how has that literature grown over the years? 3. which research themes in ht have gained the most attention from scholars globally within the framework of the un and which is the current pattern of articles distribution and citation? 4. what are the gaps in existing research and possible areas for future research? 2. materials and methods 2.1. study design a bibliometric analysis has been employed to achieve the objectives of this study. this research technique applies quantitative methods to evaluate and analyze the scientific production and publications in a field of study (donthu et al., 2021). it has been used to measure and assess the influence, impact and trends in academic literature on the connection between ht and the un, through the analysis of bibliographic data such as authors, articles, journals, keywords, citations and co-citations. this type of analysis allows for the identification of collaboration patterns, emerging research areas and the main contributors in a specific field of knowledge (aria and cuccurullo, 2017). subsequently and in order to obtain more enlightening results, the search criteria have been refined to address the linkage of ht with the sdgs. given that both areas have traditionally been presented as separate, this bibliometric analysis aims to examine the impact on academic literature of combating trafficking within the framework of the 2030 agenda. the scientific production and the metrics derived from it would illuminate the current state of the literature on ht, highlighting its relationship with the sdgs while recognizing that an inclusive approach involving most un bodies is essential for comprehensive understanding and effective implementation. consequently, it aims to observe whether there has been an increased promotion of multilevel governance since the inception of these goals in 2015, as this approach facilitates collaboration among various stakeholders (such as local, national and international actors) which is essential for effectively addressing complex global challenges like ht in the context of the sdgs. ultimately, the objective of the bibliometric analysis of scientific production on ht is to reveal how academic studies have addressed the intersection between trafficking and governance in an international environment based on complex regimes. researches from 2007 to the present highlights the importance of strengthening institutional capacities and international cooperation to tackle this problem (friesendorf, 2007; chuang, 2013; orsini et al., 2020; mendel and sharapov, 2024). additionally, the analysis of collaboration networks could show how academia, governmental institutions and international organizations work together to develop more effective knowledge and strategies. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 7 in this research, the tools bibliometrix and biblioshiny were utilized to conduct a detailed bibliometric analysis. bibliometrix is an r package that facilitates quantitative and qualitative analysis of bibliographic data. it offers advanced techniques for data management and visualization, allowing for the exploration of trends, patterns and networks in scientific literature. biblioshiny, on the other hand, is a graphical user interface that complements bibliometrix, making its functionality accessible to users without advanced programming knowledge in r. by employing these tools, a thorough and precise analysis of the literature on ht has been achieved, providing an comprehensive overview based on thematic, geographical and disciplinary patterns in the literature (aria and cuccurullo, 2017). over and above the aforementioned, selection of bibliometrix and its graphical interface biblioshiny for this study also responds to their comprehensive and customizable analytical capabilities. unlike tools such as vosviewer, which focus primarily on network visualization and clustering, bibliometrix provides a broader range of statistical and graphical outputs, including co-word analysis, thematic mapping, and source impact analysis. moreover, bibliometrix’s deeper integration with the r programming environment, offers greater flexibility in processing and refining bibliographic data. this made it especially suitable for a study that required both exploratory visualization and detailed metric-based assessment of research trends. the dataset retrieved from web of science was exported in bibtex format and uploaded into biblioshiny. the analysis included descriptive metrics (publication volume and citation patterns), source impact, authorship and institutional collaboration networks, keyword co-occurrence, and thematic evolution. network maps were generated using co-occurrence thresholds, and thematic maps were constructed based on centrality and density parameters. this approach allowed for both quantitative mapping and qualitative interpretation of academic production on human trafficking, the un, and the sdgs. 2.2. search strategy we conducted a boolean search across the entire web of science (wos) collection, spanning the period from 2000 to 2024. wos is a leading global platform for searching, analyzing and evaluating scientific research, encompassing bibliographic references from publications dating back to 1900 across multiple disciplines, with access to over 171 million bibliographic records (web of science platform, no date). considering the potentially multidisciplinary nature of the query, it was deemed appropriate to include all available databases within wos to reliably capture the current state of research on ht and the united nations. the decision to rely solely on wos was based on its rigorous indexing criteria, the high quality of its records, and its compatibility with bibliometrix’s advanced analytical tools. however, we acknowledge that this choice excludes key publications indexed exclusively in other databases, such as the journal of human trafficking, which is not fully covered in wos. this limitation reflects a trade-off between data quality and https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 8 completeness. future research could integrate complementary databases such as scopus or proquest to capture a more exhaustive range of sources in this domain. table 1 presents our boolean search strategy, detailing the keywords used and exclusions applied. the selection of keywords is pivotal in conducting a bibliometric analysis as they help define the scope of the study, focusing the search on relevant literature pertinent to our research objectives (becerra, 2014). to ensure the retrieval of unbiased and representative results, the keywords used for the first search criterion, related to ht, were chosen to be neutral. these keywords were extracted from the united nations convention against transnational organized crime of 2000 and more specifically from its protocol to prevent, suppress and punish trafficking in persons, especially women and children. for the keywords related to the second search criterion, concerning the united nations organization, we selected terms that reflect the wide array of efforts and initiatives of the organization related to ht. this includes acronyms or abbreviations to capture any general reference to the institution, as well as all specialized entities and agencies that participate in combating trafficking, such as the united nations office on drugs and crime (unodc) or the united nations high commissioner for refugees (unhcr). the inclusion of human smuggling in the search strategy is based on the frequent conflation of this concept with human trafficking in the academic literature. although they are legally distinct (trafficking involves exploitation, while smuggling refers to consensual border crossing) their overlap in migration contexts makes them difficult to disentangle in bibliometric data. gallagher and david (2014) observe that smuggling is often treated as table 1. initial boolean search strategy (ht-un) keywords exclusions ts = (“human trafficking” or “trafficking in persons” or “modern slavery” or “sex trafficking” or “labor trafficking” or “forced labor” or “human smuggling” or “child trafficking” or “sexual exploitation” or “labor exploitation”). and ts=(“united nations” or “un” or “unodc” or “unhcr” or “unicef” or “un women” or “undp” or “unodc global report on trafficking in persons” or “un conventions” or “un protocols” or “un initiatives” or “un policies” or “united nations office on drugs and crime” or “un high commissioner for refugees” or “united nations children’s fund” or “un entity for gender equality and the empowerment of women” or “un development programme”). not ts = (“drug trafficking” or “arms trafficking” or “animal trafficking” or “wildlife trafficking” or “cybersecurity” or “climate change” or “renewable energy”). source: own elaboration. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 9 a gateway or parallel process to trafficking, especially in contexts of irregular migration. therefore, including human smuggling allowed for a more comprehensive capture of publications discussing these intertwined phenomena. the selected keywords are shown in the first column of table 1 and were searched within the topic field tags in wos, which encompass titles, abstracts and publication descriptions9. the second column of table 1 lists the excluded keywords. to minimize false positives in the results, concepts related to other types of transnational trafficking, such as animal or arms trafficking, were excluded. the exclusion of terms such as drug trafficking, arms trafficking or cybersecurity was necessary to ensure thematic precision, as these topics refer to distinct criminal economies that fall outside the human rights and governance scope of this study. similarly, although topics like climate change or renewable energy are increasingly recognized as structural drivers of vulnerability and displacement (and thus indirectly linked to ht) their inclusion produced a high volume of false positives in preliminary tests. given the risk of diluting the focus, these terms were excluded to maintain analytical clarity. however, the intersection between environmental change and trafficking deserves specific attention in future research. however, after an initial analysis of the search for ht and the united nations, it became evident that refining the search was necessary to more specifically capture the interactions between trafficking and the sustainable development goals. to enhance the precision of the search, we selected keywords that reflect both the official names and various forms in which the sdgs are referenced in the literature. this includes acronyms, abbreviations, alternative denominations like “agenda 2030,” and terms that encompass specific goals and targets, aiming to ensure comprehensive coverage of relevant terms. these keywords were chosen based on official documents and pertinent literature on the sdgs and their global implementation, as outlined in table 2. finally, while this study focused on the most prevalent and internationally recognized forms of trafficking (e.g., sexual and labor exploitation), other critical but less represented forms (such as forced marriage and organ trafficking) were not included as primary search terms. their exclusion does not reflect a lesser relevance, but rather the limited bibliometric density they provide when analyzed globally. for example, studies like gonzalez et al. (2020) demonstrate that organ trafficking remains significantly underresearched, making its inclusion statistically marginal in a global trend analysis. future research could build on this work by developing more targeted bibliometric analyses of these specific modalities. 9 the “publication description” refers to the “keywords plus” and “author keywords” fields indexed in web of science records. these fields enhance search coverage by including algorithmically generated and author-assigned terms that summarize core concepts of each publication. https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 10 table 2. second boolean search strategy (ht-sdgs) keywords exclusions ts = (“human trafficking” or “trafficking in persons” or “modern slavery” or “sex trafficking” or “labor trafficking” or “forced labor” or “human smuggling” or “child trafficking” or “sexual exploitation” or “labor exploitation”). and ts=(“sustainable development goals” or “sdgs” or “global goals” or “2030 agenda” or “un sdgs” or “sustainable development targets” or “sustainable development objectives” or “development goals” or “sustainable goals” or “united nations goals” or “post-2015 development agenda” or “sustainability goals” or “environmental and social goals” or “social development goals” or “economic development goals” or “global development goals” or “un 2030 goals” or “sustainable development framework” or “sustainable development initiatives” or “un sustainability agenda” or “sustainability objectives”). not ts = (“drug trafficking” or “arms trafficking” or “animal trafficking” or “wildlife trafficking” or “cybersecurity” or “climate change” or “renewable energy”). source: own elaboration. 2.3. bibliometric indicators bibliometric indicators are utilized to analyze the quantity and quality of scientific publications on a specific topic (durieux and gevenois, 2010). the most frequently used metrics include the number of publications (quantity) and the number of citations (impact). these indicators are employed to examine temporal trends and the geographical distribution of research on the search criteria. additionally, the analysis includes identifying journals with the highest production and impact. wos categories also reveal the research fields to which the publications belong, as well as which sdg each article addresses. following previous bibliometric analysis methodologies, we use a threshold of ten to present the results obtained (sweileh, 2018). 2.4. network and word analysis bibliometric analysis not only provides a quantitative view of scientific production but also facilitates a deep understanding of connections among authors, institutions and predominant themes through network and keyword analysis. collaboration networks among authors, institutions and countries serve as crucial indicators of cohesion and knowledge dissemination within a specific field. meanwhile, keyword analysis offers insights into prevalent and emerging themes in ht research, as well as their temporal evolution and thematic relationships within the field. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 11 these bibliometric tools not only help map the current state of research but also identify emerging areas and knowledge gaps, laying a solid foundation for future investigations. all maps presented are based on co-occurrence, meaning the appearance of both search terms in the same publication (initially ht and un, followed by refining to ht and sdgs), utilizing bibliometrix10 software for analysis. understanding these dynamics is essential for developing more effective, evidence-based strategies to combat ht and for promoting governance and policies aligned with un goals and sdgs. 3. results 3.1. temporal trend as a result of our search, we retrieved 404 documents published from 2000 to june 2024. the analysis of annual scientific production on trafficking in the context of the un reveals an upward trend from the year 2000 to 2024, with notable fluctuations in certain periods. from the early 2000s until around 2012, there is a gradual and sustained increase in the number of published articles on ht and the un. this rise reflects a growing interest and recognition of the importance of trafficking as a crucial issue on the international agenda (figure 1). figure 1. publications about ht-un per year, 2000-2024 source: own elaboration using bibliometrix software. 10 bibliometrix is a software package for the r statistical programming language, specifically designed for quantitative research in scientometrics and bibliometrics. for more information on bibliometrix’s functionalities, please visit https://www.bibliometrix.org/home/index.php/layout/bibliometrix one of the most significant findings from the graph is the notable peak in scientific production in the year 2015. this increase coincides with the preparation during that year and the subsequent adoption of the sdgs by the un general assembly in september. as https://doi.org/10.17561/tahrj.v25.9547 https://www.bibliometrix.org/home/index.php/layout/bibliometrix a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 12 previously mentioned, sdg 5, 8 and 16 include specific goals related to the eradication of ht. the publication of the 2030 agenda spurred an increase in academic research and publications, indicating a renewed focus and greater funding and support for studies in this area. this underscores how international frameworks and global policies can significantly influence research and academic publication trends. since then, with some fluctuations, there has been a clear upward trend in publications, suggesting sustained and growing attention towards this global issue. the observed decrease for the year 2024 is because, at the time of writing this analysis, only half of the year had passed. therefore, in relative terms and pending a similar evolution to previous years, 2024 is expected to conclude with a number of publications similar to previous years. on the other hand, the graph depicting the analysis of ht and sdgs reveals greater variability and fluctuations in annual production compared to the previous analysis, which showed a more consistent trend. as a result of this search, we retrieved only 49 documents published from 2016 to june 2024. the peaks in production in figure 2 are notably more pronounced, suggesting significant variation in interest or the publication of specific research in certain years. there were no publications recorded before the year 2016, this is logical considering 2015 marking the inception of the 2030 agenda. figure 2. publications about ht-sdg per year, 2016-2024 source: own elaboration using bibliometrix software. this variability underscores the dynamic nature of research attention towards addressing ht within the framework of sustainable development goals. the spike in publications following the adoption of the sdgs reflects heightened academic and institutional focus on integrating efforts to combat trafficking into broader global development agendas. this shift highlights how international policy frameworks can catalyze research efforts and mobilize resources towards addressing complex global challenges. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 13 moreover, the fluctuations observed in figure 2 indicate shifts in scholarly emphasis and thematic priorities over time, possibly influenced by evolving global events, funding priorities, or emerging research paradigms. understanding these patterns is crucial for adapting strategies and interventions effectively to address ht within the context of evolving international development goals and priorities. 3.2. geographical distribution we find in figure 3 that the geographical analysis of scientific production on ht within the un context shows that most research originates from western countries, particularly the united states, the united kingdom and western europe, likely due to greater research capacity and resources. in contrast, regions like africa, asia and south america, which face severe trafficking issues, have low scientific output. this imbalance could limit the effectiveness of global anti-trafficking policies by underrepresenting the specific needs of these regions, highlighting the need for stronger research capacity and international collaboration in the most affected areas. figure 3. total publications on ht-un by author’s country affiliation, 2000-2024 source: own elaboration using bibliometrix software. regarding figure 4, the diversity of countries contributing to research on trafficking and the sdgs highlights a global interest and international collaboration in addressing this issue. the participation of countries across north america, europe, asia and oceania underscores a broad geographic spread of research efforts. however, there is notable imbalanced representation from regions such as africa, parts of south america and central asia in terms of scientific production on this critical topic. a striking difference from previous figures is the significant presence of the united kingdom. this suggests a focused approach or dedicated resources within the uk towards research on trafficking and the sdgs. the significant presence of the united kingdom https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 14 in trafficking research can likely be linked to the adoption of the modern slavery act11 in 2015, which laid the groundwork for a comprehensive approach to tackling human trafficking and modern slavery. furthermore, the creation of the modern slavery research centre, funded through the modern slavery policy and evidence centre, highlights the uk’s commitment to generating evidence-based research that aligns with the sdgs. this academic and institutional support has likely contributed to the uk’s robust involvement in trafficking-related research. another noteworthy observation is the substantial participation of china in this research domain. china’s active engagement indicates growing attention and potentially increasing resources allocated to understanding and combating ht in alignment with the sdgs. this trend underscores china’s commitment to addressing global challenges through research and policy initiatives. the varied representation of countries from different continents in figure 4 indicates a shared commitment to tackling ht as a global issue. however, the disparities in representation also highlight the need for greater inclusivity and collaboration across regions to ensure comprehensive and effective strategies. strengthening research capacities in underrepresented regions and fostering international cooperation are essential to develop informed policies and interventions that address the diverse dimensions of ht worldwide. 3.3. research areas figure 5 depicting research areas related to ht in the context of the un provides a clear overview of the most active disciplines and predominant approaches in research. 11 see: https://www.legislation.gov.uk/ukpga/2015/30/contents figure 4. total publications on ht-sdg by author’s country affiliation, 2000-2024 source: own elaboration using bibliometrix software. https://doi.org/10.17561/tahrj.v25.9547 https://www.legislation.gov.uk/ukpga/2015/30/contents daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 15 the field of law stands out significantly as the most published, with a clear predominance over other disciplines with more than a hundred of publications. this underscores the critical role of legal frameworks and international regulations in studying and addressing ht. similarly, the field of international relations and political science also shows a high number of publications (75), indicating strong interest in international cooperation and global policies. figure 5. top ten research areas in ht-un literature source: own elaboration using bibliometrix software. the substantial presence of gender studies (20 publications) underscores a distinct gender perspective in research on ht. this reflects recognition that trafficking disproportionately affects women and girls, emphasizing the need for specific approaches that consider gender dynamics in prevention and protection efforts. areas such as demography (15), social problem studies (15) and public environmental studies (13) also contribute to the research body, albeit to a lesser extent. these fields provide additional insights into the impact of ht on different contexts and populations. overall, the diversity of research areas reflects a multidisciplinary approach to understanding and addressing ht within the framework of sdgs and international cooperation. by integrating legal, international relations, gender and other perspectives, researchers can develop more comprehensive strategies to combat trafficking and support its victims worldwide. regarding figure 6, it is evident that studies on ht and the sdgs are approached from various scientific disciplines, highlighting its interdisciplinary nature. however, in this case, there is a noticeable emphasis on areas related to business (8 publications) and environmental studies (8). this difference may be influenced by the integration of the sustainable development goals, which often emphasize the importance of environmental sustainability and responsible business practices. the prominence of business studies in ht research highlights the growing recognition of economic factors and the private sector’s role in combating trafficking through ethical supply chains, corporate social responsibility and economic empowerment. https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 16 similarly, the focus on environmental studies acknowledges how environmental issues like illegal mining and deforestation contribute to trafficking vulnerabilities. this interdisciplinary approach, integrating insights from business, environmental studies and other fields, allows for the development of more effective strategies that address the complex dynamics of ht while advancing sustainable development goals globally. 3.4. sources when examining the most active and influential journals in the analysis of combating trafficking under the united nations framework, it becomes clear that specialized journals focusing on ht, peace and migration are not only the most active but also have a significant impact. this suggests that these are the predominant approaches in research on the topic. additionally, the high presence of journals dedicated to human rights underscores the importance of this perspective in trafficking research, emphasizing the critical need to protect and promote the rights of victims. analysis from table 3 reveals that the most active and influential journals in ht and un-related research include a mix of specialized publications on the topic as well as those focused on peace, human rights and international relations. the anti-trafficking review stands out as the most prolific, while international peacekeeping leads in impact. the diversity of disciplines represented in these influential journals underscores the complexity of the issue and the necessity for interdisciplinary approaches. these findings highlight the interconnectedness of ht with broader issues of peace, human rights and migration within academic discourse. journals specializing in these areas play a crucial role in shaping research agendas, disseminating knowledge and driving policy discussions aimed at addressing ht effectively. by focusing on these influential journals, researchers can gain insights into the latest developments, trends and debates surrounding trafficking and its implications within the context of un initiatives figure 6. top ten research areas in ht-sdg literature source: own elaboration using bibliometrix software. https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 17 table 3. top ten most active and most influential journals on ht-un rank most active journals n. publications most influential journals cites 1 anti-trafficking review 14 international peacekeeping 193 2 international peacekeeping 12 journal of peace research 147 3 international migration 7 int organization 128 4 international studies quarterly 7 international studies quarterly 119 5 child abuse & neglect 6 international migration 88 6 human rights review 5 human rights quarterly 82 7 international journal of human rights 5 international interactions 74 8 social & legal studies 5 journal of business ethics 71 9 international interactions 4 journal of conflict resolution 66 10 international journal of comparative and applied criminal justice 4 american political science review 62 source: own elaboration using bibliometrix software. and sustainable development goals.research on ht in the context of the sdgs is welldistributed across a variety of academic journals, reflecting the interdisciplinary nature of the topic. table 4 illustrates that the most active journals tend to focus on public health, business strategy, supply chain management and sustainability. on the other hand, the most influential journals in terms of citations include high-reputation publications in supply chain management, business ethics and cleaner production. this diversity in sources and citation underscores the breadth of impact and academic interest in the intersection of trafficking with the sdgs, aligning with figure 6 which highlighted business interest in these studies. businesses are increasingly interested in the sdgs as a framework for sustainability and corporate social responsibility. as previously discussed, trafficking is directly related to several goals and targets of the agenda 2030, especially those concerning decent work, gender equality and economic growth (un, no date b, no date a). companies are seeking to align with these goals to enhance their reputation, meet consumer and investor expectations and manage risks associated with exploitative labor practices in their supply chains. https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 18 table 4. top ten most active and most influential journals on ht-sdg rank most active journals n. publications most influential journals cites 1 bmc public health 2 supply chain management international journal 63 2 business strategy and the environment 2 journal of business ethics 60 3 supply chain management-an international journal 2 journal of cleaner production 37 4 sustainability 2 journal of supply chain management 30 5 2022 ieee international power and renewable energy conference 1 journal of operations management 28 6 3rd international conference on energy, environmental and information system 1 academy of management review 27 7 australian journal of management 1 business strategy and environment 23 8 business strategy and development 1 accounting, auditing and accountability journal 21 9 child abuse & neglect 1 international journal of operations and production management 21 10 ciencia & saude coletiva 1 child abuse and neglect 20 source: own elaboration using bibliometrix software. the alignment of academic research on ht with business strategy and sustainability goals indicates a growing recognition of the interconnectedness between social issues, economic sustainability and corporate practices. by engaging with these themes, both academia and businesses contribute to advancing knowledge, fostering ethical practices and achieving broader societal goals outlined in the sdgs. this collaborative effort is essential for addressing complex global challenges like ht in a comprehensive and sustainable manner. 3.5. word analysis figure 7 highlights central themes in ht research, such as violence, abuse and sexual exploitation, with a strong focus on gender and women. the research’s gender https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 19 perspective contributes to target 5.2 by raising awareness and providing data to design effective policies. the research also emphasizes the significance of ht in conflict zones and peacekeeping efforts. additionally, terms like labor, supply chains and modern slavery indicate a focus on the economic dimensions of ht, exploring how business practices and management impact trafficking. the integration of legal frameworks, human rights and social aspects across multiple disciplines underscores the complex nature of ht studies. figure 7. co-occurrence network of most relevant terms in titles and abstracts of ht-un note: nodes depict terms and their linkages convey co-occurrence relationships. larger nodes indicate terms with more occurrences. color shows average publication year for each term. source: own elaboration using bibliometrix software. the network visualization depicted in figure 7 illustrates the distinct, yet interconnected clusters of research themes related to ht. the red nodes potentially represent a focus on institutional perspectives, emphasizing governance, law, politics and human rights. this suggests that a significant portion of the literature addresses the need for well-coordinated governance structures and complex regimes to effectively tackle trafficking. the prominence of terms like “governance” and “law” indicates that scholars are particularly concerned with the institutional frameworks and legal mechanisms necessary to combat this issue. in contrast, the blue nodes highlight socio-political and economic aspects, where terms such as “abuse,” “violence,” “women,” “gender” and “sexual exploitation” are https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 20 predominant. this cluster indicates that another major stream of research focuses on the direct impact of ht on individuals and communities, emphasizing the need for addressing socio-economic factors and the exploitation that occurs within these contexts. the institutional frameworks (represented by the red nodes) must be effectively aligned to ensure a meaningful impact on combating ht and addressing its socio-political and economic dimensions (represented by the blue nodes). the central positioning of “human-rights” underscores the widespread recognition of ht as a critical human rights issue. the term’s prominence suggests that many studies advocate for a human rights-based approach in terms of governance, calling for the protection and guarantee of human rights as fundamental to combating ht. this holistic perspective bridges the institutional and socio-economic domains, highlighting the necessity of integrating robust governance with efforts to protect and promote human rights to ensure effective and equitable solutions to ht. on the other hand, the analysis of figure 8 shows that modern slavery is a central and critically important theme in the reviewed literature in the sphere of trafficking and 2030 agenda. violence emerges as a critical component, often associated with the challenges of addressing modern slavery. additionally, there is notable concern for vulnerable groups, especially children and for the psychological and abuse-related consequences of modern slavery. this indicates a multifaceted and complex understanding of the problem, addressing both its causes and various consequences. figure 8. co-occurrence network of most relevant terms in titles and abstracts of ht-sdg note: nodes depict terms and their linkages convey co-occurrence relationships. larger nodes indicate terms with more occurrences. color shows average publication year for each term. source: own elaboration using bibliometrix software. the term modern slavery has gained increasing relevance in both academic and policy discussions, expanding the conceptual framework of human trafficking to include a wider array of exploitative practices. bales (2016) emphasizes that modern slavery encompasses not only trafficking but also forced labor, servitude and other slaverylike conditions that persist in today’s globalized economy and links these practices to environmental degradation and systemic exploitation, highlighting how interconnected these issues are in a global context. similarly, davidson (2015) explores how the term allows for a more nuanced understanding of exploitation by addressing both traditional and contemporary forms of coercion and control. the adoption of modern slavery in policy frameworks, such as the modern slavery act, reflects this broader approach, which https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 21 aims to cover the multiple dimensions of exploitation that go beyond the boundaries of earlier legal definitions. relating the data from this graph to the findings previously obtained from the htsdgs study, in the business sphere, “modern slavery” is often discussed in the context of supply chains, corporate responsibility and ethical labor practices. the strong presence of “violence” in the network suggests that within these publications, it is recognized that violence is both an intrinsic feature of modern slavery and a direct consequence of exploitative labor practices. it’s essential to consider the growing emphasis on business and human rights (b+hr) frameworks over the past decade. b+hr initiatives advocate for corporate accountability in preventing human rights violations, including child labor, within supply chains. this trend reflects an increasing recognition of the interconnectedness between corporate practices and social issues, emphasizing the role that businesses play in addressing child exploitation. research indicates that companies are increasingly required to assess and mitigate risks related to child labor, not only to comply with international regulations but also to enhance their brand reputation and operational sustainability (ohchr, 2000; koseleci and rosati, 2009). in conclusion, several significant groupings are observed in the figure. for example, the terms “children” and “risk” form a cluster, highlighting a specific concern for the risks faced by minors in contexts of labor exploitation. also, it is important to point that the disconnect between the un’s focus on gender, governance and the broader ht discourse within the sdgs framework highlights significant gaps in the current academic literature. the predominant focus on labor exploitation (sdg 8) neglects critical intersections with gender issues (sdg 5), governance (sdg 16) and migration-related inequalities (sdg 10). 3.6. thematic map the bibliometric analysis graph categorizes terms related to the un and ht into four quadrants based on development (density) and relevance (centrality), as we can see in figure 9. in the basic themes quadrant, terms like human rights and governance are highly relevant but moderately developed, indicating a need for further research. driving themes, such as health and corporate social responsibility, are both relevant and well-developed, highlighting their importance in current research. niche themes, like peacekeeping operations, are highly developed but less relevant, while emerging or declining themes, such as human capital and campaign, are neither well-developed nor widely recognized. the central intersection features transitional terms like sexual violence and war, which have moderate relevance and development, suggesting they may become more central in future research. figure 10 reveals that the literature on ht and sdgs concentrates on key, welldeveloped topics such as violence, children’s mental health and governance. these topics are essential for understanding and addressing the multiple facets of the problem, from https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 22 figure 9. thematic map from bibliometric analysis of ht-un source: own elaboration using bibliometrix software. figure 10. thematic map from bibliometric analysis of ht-sdg source: own elaboration using bibliometrix software. its most direct consequences to the regulatory frameworks necessary to combat it. basic themes such as modern slavery in the supply chain and corporate social responsibility reflect a growing concern and are areas that require further development and research to https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 23 strengthen their impact and application. niche topics, although well-developed, are less central and could benefit from greater integration into the broader discourse. finally, the supply chain as an emerging or declining topic indicates a potential area of opportunity for future research, thus offering a valuable contribution to the field of study. 4. discussion the bibliometric analysis conducted in this study provides a comprehensive view of the current state of research on ht and its relationship with the sdgs. this discussion section addresses the main findings, observed trends, geographical disparities, emerging themes and international collaborations, as well as the implications and recommendations for future research and policy. we aim to identify the gaps in the existing literature which do not acknowledge the interconnection between trafficking and sdgs. it is also observed that there are articles and papers on subject matter that discuss different root causes, areas and policies for ht. recognizing that governance is crucial in the context of trafficking because of the need for effective coordination among various actors and institutions at the local, national and international levels, the analysis of the sdgs shows a clear focus on the issues of trafficking for the purpose of labor exploitation (goal 8), leaving a large gap in terms of gender dimensions (goal 5) and governance (goal 16). 4.1. trends in scientific production one of the most notable findings is the concentration of scientific production in western countries, especially in the united states, the united kingdom and several western european countries. this trend can be attributed to greater research capacity, access to funding and academic resources in these regions, as well as a strong interest in human rights and international policies. however, this concentration also raises the risk of biases in the perspective and focus of the research, potentially underrepresenting the realities and specific needs of countries facing greater challenges related to ht, such as many regions in africa, asia and latin america. additionally, the exclusion criteria that limited the research to english-language documents pose a significant constraint. this decision inherently restricts the analysis to the hegemony of english-speaking scholarly production, predominantly defined by prestigious western publishers. consequently, this limitation marginalizes the epistemologies and perspectives of the global south, leaving the insights and experiences of non-english speaking regions, particularly those facing severe ht challenges, underrepresented and largely invisible in the academic discourse. this exclusion highlights a critical gap in understanding and addressing ht from a more inclusive and diverse global perspective. the annual production of publications shows a clear increase in attention towards ht from the year 2000 to the present, reflecting a growing recognition of the severity of the problem and the importance of addressing it from multiple perspectives and approaches. nevertheless, the variability in specific research on ht in the context of the sdgs suggests https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 24 a reactive response to specific events or policy initiatives related to the 2030 agenda. this pattern of reactive response may indicate the need for a more systematic and sustained approach in research and policy development. 4.2. geographical disparities the geographical disparity in scientific production is evident, with a clear predominance of studies originating from developed countries. this imbalance underscores the need to strengthen research capacity in the countries most affected by ht. to address this challenge, it is crucial to foster greater international collaboration and provide financial and technical support to research located in these countries and their contextualized issues. only through equitable representation can truly inclusive and effective global strategies be developed. sweileh’s (2018) bibliometric analysisis using the scopus database reveals that regions with a high prevalence of ht have the least research contribution, highlighting this significant gap in the literature too. to address this challenge, the author points that it is crucial to foster greater international collaboration and provide financial and technical support to research located in these countries and their contextualized issues. moreover, the study emphasizes the limited contribution of international research collaboration and the dominance of institutions from developed countries. this situation calls for bolstering the research capacities in less developed countries to effectively address their specific ht issues. 4.3. emerging themes and research areas the analysis of ht-un documents reveals a significant emphasis on gender issues (goal 5) and governance (goal 16). this reflects the united nations’ priorities, stressing the importance of addressing gender inequality and ensuring robust governance structures to combat ht effectively. gender-sensitive policies and strong legal and institutional frameworks are crucial, highlighting the necessity for transparent, accountable institutions and effective coordination among various stakeholders involved in preventing trafficking, protecting victims, prosecuting offenders and ensuring justice and redress for victims, all from a clear human rights perspective. in stark contrast, the existing academic literature on ht within the framework of the sdgs predominantly focuses on labor exploitation (goal 8). this narrow focus neglects the critical aspects of gender and governance that the un emphasizes. this disconnect suggests that academic research may not fully capture the multifaceted nature of trafficking, which involves not only labor exploitation but also significant gender-based violence and governance issues. the literature’s concentration on sdg 8 reveals a gap in addressing the broader spectrum of trafficking issues, particularly those related to gender equality and strong institutions, as outlined in sdgs 5 and 16. governance plays a crucial role in ensuring that policies and strategies against ht are effective at the local, national and international levels. robust governance is https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 25 characterized by strong, transparent institutions, adequate legal frameworks, accountability mechanisms and effective coordination among various actors involved in prevention, protection, prosecution and redress (trapnell, 2011; raymond et al., 2023). this is essential because weaknesses in governance, such as corruption, lack of institutional capacity and insufficient resources can significantly hinder efforts to combat trafficking (friesendorf, 2007). the overlap of international regimes can generate both challenges and opportunities. it allows for cooperative strategies and forum-linking but can also lead to opportunistic strategies that weaken cooperation (gómez-mera, 2016; alter and raustiala, 2018). addressing these challenges requires better policy harmonization, resource optimization and strengthened international cooperation to ensure the effective implementation and enforcement of anti-trafficking policies (chuang, 2013). however, despite de fact that the un addresses it as one of the main issues within the problem of ht, the analysis of the sdgs literature reflects a clear gap in this area. moreover, the academic literature on ht and sdgs also fails to adequately address sdg 10, which pertains to reducing inequalities and is closely related to issues of migration, key factors in the dynamics of ht. migrants are often at higher risk of trafficking due to their vulnerable status, yet this critical intersection is overlooked in current academic discussions. the omission of this issue from the academic focus further highlights the gaps in understanding the full scope of ht, particularly how it intersects with migration and inequality issues. addressing these gaps is essential for developing comprehensive and effective strategies to combat trafficking. one final critical omission in the current literature corpus is the intersection between human trafficking and cybercrime, an area increasingly prioritized by un agencies and international governance frameworks. recent reports (unodc, 2024) and survivorfocused research (lazarus et al., 2025; franceschini et al., 2024) reveal the proliferation of cyber-facilitated trafficking through digital recruitment, online exploitation, and financial transactions via cryptocurrencies. this trend is not yet reflected in a significant volume of academic literature indexed in wos, but its growing importance highlights the need for future research to explore how digital platforms and surveillance technologies reshape trafficking dynamics, regulatory responses, and victim protection mechanisms. 4.4. international and multidisciplinary collaborations the collaboration network analysis reveals growing international cooperation in research on trafficking and the sdgs. however, some regions remain underrepresented, highlighting the need to foster greater collaboration among academia, government institutions and international organizations. multidisciplinary collaboration is also essential to address the complexity of ht and to develop integrated and holistic approaches. the evident gap in the academic literature about sdgs regarding gender-focused and human rights-based governance approaches to trafficking could be attributed to the prevailing anglophone epistemology. since the analyzed articles are predominantly https://doi.org/10.17561/tahrj.v25.9547 a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 26 in english and exclude other languages, there is potential that research in non-english languages might address these critical issues more thoroughly. non-english literature could provide valuable insights and perspectives, particularly from regions heavily affected by trafficking but underrepresented in english-language research. promoting international and multidisciplinary collaborations can help overcome geographical and disciplinary limitations, facilitating the exchange of knowledge and experiences. these collaborations can lead to the creation of more inclusive and diversified research networks, which in turn can enhance the quality and relevance of research on ht and the 2030 agenda. it is crucial for future studies to incorporate multilingual sources to offer a more inclusive and comprehensive understanding of ht in relation to the sdgs. only through such inclusive research practices can we hope to fill these significant gaps and develop more effective, globally relevant strategies to combat ht. 4.5. implications for policies and practices the findings of this study have significant implications for policies and practices aimed at combating trafficking. the inclusion of ht in the sdgs, particularly in targets 5.2, 8.7 and 16.2, has been a significant step in increasing the visibility and prioritization of this issue globally. however, improving governance to combat ht not only involves strengthening institutions and legal frameworks but also ensuring that there are adequate resources and political will to implement and enforce policies and programs aimed at eradicating trafficking. in summary, although progress has been made in research and visibility of trafficking in the context of the sdgs, significant challenges remain related to geographical representation and effective policy implementation. strengthening research capacity in the most affected regions and promoting robust and collaborative governance are essential steps to more effectively address this global problem. the focus on supply chains and corporate social responsibility is also crucial to eradicating modern slavery and ensuring that business practices align with the principles of the sdgs, but the need for gender mainstreaming and migration and governance issues remains urgent. future research should continue to explore these topics, integrating multidisciplinary approaches and fostering international collaborations to develop more effective and sustainable strategies. only through a coordinated global effort and inclusive, representative research can significant progress be expected in eradicating ht and achieving the development goals. richie-zavaleta et al. (2021) mention the relationship of sdgs 5 and 8 with ht, ignoring the importance of goal 16 in this debate and being an example of how the literature focuses more on the issues of labor exploitation than on the global framework of governance and migration (goal 10). 4.6. limitations of the study the validity of these results is limited by the common weaknesses of any bibliometric analysis. although the search strategy was designed to minimize the number https://doi.org/10.17561/tahrj.v25.9547 daniel romera mejías, waldimeiry correa da silva the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 27 of false positives, it may still include publications that are not fully focused on the topic. additionally, while web of science is an internationally recognized database that provides reliable information, it also has some limitations. in the current study, the primary limitation was the exclusion of grey literature from its databases. nonetheless, this is a common and accepted trait in bibliometric analyses. these limitations should be considered when interpreting the study’s findings. while this study applied core bibliometric techniques using bibliometrix and biblioshiny, it focused primarily on descriptive and thematic analyses. more advanced science mapping methods (such as co-citation networks, factorial analysis, or longitudinal citation trajectory mapping) were not conducted due to the thematic dispersion and limited density of the ht-sdg subcorpus. these techniques, although valuable, require a minimum threshold of internal connectivity that was not met in preliminary iterations. future studies with larger or more focused corpora may benefit from applying these advanced methodologies to deepen the structural mapping of the field. 5. conclusions the bibliometric analysis on ht and the united nations reveals a significant increase in research since 2000, driven by the inclusion of ht in the sdgs. this growth reflects a greater global awareness of the severity of the problem. however, the research is concentrated in western countries such as the united states and the united kingdom, which limits the understanding of realities in the most affected regions like africa, asia and south america. it is crucial to foster research capacity and international collaborations in these areas to develop effective global strategies. the thematic analysis identifies key areas such as violence, children’s mental health and governance, as well as emerging topics like modern slavery in supply chains and corporate social responsibility, which require more attention. integrating these themes is vital to addressing ht in the global business context. governance stands out as a critical issue, highlighting the need for strong legal frameworks and efficient institutions. international and multidisciplinary collaboration is essential to tackle the complexity of ht and develop integrated and effective approaches. in terms of future research agendas, particular attention should be given to emerging topics such as online recruitment methods for trafficking, the role of artificial intelligence and digital surveillance, and the intersection of climate-induced displacement with vulnerability to trafficking. from a geographical standpoint, underrepresented regions such as the sahel, central asia and the pacific islands warrant targeted academic attention, especially in the context of south-south cooperation. to operationalize inclusive research practices, it is essential to support the development of transregional research networks, such as those fostered by the global action against trafficking in persons and smuggling of migrants (glo.act)12, and to advocate for increased international funding schemes 12 see: https://www.unodc.org/unodc/en/human-trafficking/glo-act/index.html https://doi.org/10.17561/tahrj.v25.9547 https://www.unodc.org/unodc/en/human-trafficking/glo-act/index.html a bibliometric analysis of research on human trafficking: a focus on the united nations framework and the sustainable development goals the age of human rights journal, 25 (december 2025), e9547 issn: 2340-9592 doi: 10.17561/tahrj.v25.9547 28 focused on global south participation. multilingual publication platforms and regional data-sharing hubs could also foster equitable collaboration. in summary, while there have been advances in the visibility and understanding of ht in the context of the sdgs, significant challenges remain. addressing these requires a combination of research, public policies and business practices, with strong international collaboration and sustained commitment. future research should explore emerging topics and foster global collaborations to develop effective and sustainable strategies, moving towards the eradication of ht and the achievement of the sustainable development goals. statements and declarations the authors have no competing interests to declare that are relevant 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(2011). ‘actionable governance indicators: turning measurement into reform’, hague journal on the rule of law, 3(2), pp. 317–348. available at: https://doi.org/10.1017/s1876404511200095 un (no date a). ‘objetivo 8: promover el crecimiento económico inclusivo y sostenible, el empleo y el trabajo decente para todos’, objetivos de desarrollo sostenible. available at: https://www.un.org/sustainabledevelopment/es/economic-growth/ (accessed: 4 july 2024). un (no date b). ‘objetivo 16: promover sociedades justas, pacíficas e inclusivas.’, objetivos de desarrollo sostenible. available at: https://www.un.org/sustainabledevelopment/ es/peace-justice/ (accessed: 4 july 2024). united nations (2015). the 2030 agenda for sustainable development. web of science platform (no date). clarivate. available at: https://clarivate.com/ products/scientific-and-academic-research/research-discovery-and-workflowsolutions/webofscience-platform/ (accessed: 3 july 2024). https://doi.org/10.17561/tahrj.v25.9547 https://doi.org/10.1017/s1537592721003054 https://doi.org/10.1017/s1537592721003054 https://doi.org/10.1080/23322705.2020.1730132 https://doi.org/10.1080/23322705.2020.1730132 https://doi.org/10.1186/s12992-018-0427-9 https://doi.org/10.1017/s1876404511200095 https://www.un.org/sustainabledevelopment/es/economic-growth/ https://www.un.org/sustainabledevelopment/es/peace-justice/ https://www.un.org/sustainabledevelopment/es/peace-justice/ https://clarivate.com/products/scientific-and-academic-research/research-discovery-and-workflow-solutions/webofscience-platform/ https://clarivate.com/products/scientific-and-academic-research/research-discovery-and-workflow-solutions/webofscience-platform/ https://clarivate.com/products/scientific-and-academic-research/research-discovery-and-workflow-solutions/webofscience-platform/ a bibliometric analysis of research on human trafficking: a focus on the united nations framework 1. introduction 2. materials and methods 2.1. study design 2.2. search strategy 2.3. bibliometric indicators 2.4. network and word analysis 3. results 3.1. temporal trend 3.2. geographical distribution 3.3. research areas 3.4. sources 3.5. word analysis 3.6. thematic map 4. discussion 4.1. trends in scientific production 4.2. geographical disparities 4.3. emerging themes and research areas 4.4. international and multidisciplinary collaborations 4.5. implications for policies and practices 4.6. limitations of the study 5. conclusions statements and declarations references bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 1 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ vijay k. tyagi1, vaibhav chadha2, lavam tyagi3, shambhavi srivastava4 abstract: the right to speak and express freely is arguably the most contentious fundamental right guaranteed to the citizens by the indian constitution. like all the other rights and privileges in a democracy, freedom of speech is not absolute and is subject to restrictions. one such restriction is the offence of contempt of court. in doing so, courts have been successful in upholding their dignity and majesty but often at the cost of stifling criticism and instilling fear amongst the critics of the institution. there is a sense of anxiety among the citizens as they anticipate an over-disciplined regime and struggle to understand what constitutes criminal contempt and how it works. in this article, the authors have attempted to suggest a development in the existing criminal contempt law by scrutinising the mental element of the publisher or the person making the criticism. keywords: criminal contempt, fair criticism, free speech, contempt of court, mens rea. i. introduction: a brief historical background the freedom of people to express their feelings and freely voice their views is one of the most important features of a democratic way of life. if a ‘cognitive democracy’ has to be developed, existing interests of the society have to be critically evaluated. it is possible only when the people are free from external control or pressure.5 there are various facets of democracy and freedom of speech and expression forms one of the most essential tenets of the same. it not only helps people in their growth, it also reflects the maturity of a democracy. freedom of speech and expression is one of the fundamental rights under article 19(1)(a) enshrined in part iii of the indian constitution. it also provides that the state can impose reasonable restrictions in the “interests of the sovereignty and integrity of india, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”6. it expressly provides that restrictions can be imposed on the freedom of speech and expression can be in relation to contempt of court. further, by just briefly looking into article 19(1)(a) and the reasonable restrictions under article 19(2) of the indian constitution, one can accurately deduce that these provisions implied provide for fundamental right to criticize the actions of democratic institutions including the courts. 1 ph.d. candidate, faculty of law, university of delhi, vijaytyagi31@gmail.com. 2 assistant professor, op jindal global university, sonipat, haryana, india, vchadha@jgu.edu.in. 3 advocate practising at the supreme court of india, tyagilavam97@gmail.com. 4 in-house counsel at a leading indian private-sector company, shambhavi.srivastava96@gmail.com 5 john s dryzek, deliberative democracy and beyond: liberals, critics, contestations (oxford university press, 2000) 6 india const. art. 19(2) http://doi.org/10.17561/tahrj.v22.8305 mailto:vijaytyagi31@gmail.com mailto:vchadha@jgu.edu.in mailto:tyagilavam97@gmail.com mailto:shambhavi.srivastava96@gmail.com bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 2 contempt law, the “proteus of the legal world”7 originated in the monarchical legal system and has evolved over time with traces in the pre-historic divine origin theory, and also the more recent social contract theory.8 in india, the courts’ power to rule on its contempt was meant to be a deterrent and prevent interference with administration of justice under the british rule. it was originally governed by common law principles purely. the charter act of 1774,9 provided in clause 21 that the supreme court of bengal was empowered to punish for contempt of itself. thereafter, the high courts were established under the high courts act of 186110. the statute conferred the powers against contempt to the chartered high courts under sections 9 and 11. by virtue of the letters patent of 1865,11 these courts further continued their designation as courts of record. the first indian statute that dealt exclusively with the power of contempt was the contempt of courts act, 1926.12 the act empowered the high courts to exercise jurisdiction over subordinate courts and also punish for contempt of such courts. postindependence, the supreme court of india and the high courts were recognized as courts of record under articles 12913 and 21514 of the constitution respectively and therefore, also had the power to punish for their contempt. contempt of court was also included as one of the restrictions under article 19(2)15 on the right to freedom of speech and expression under article 19(1)(a)16 of the constitution. the contempt of courts act, 195217 was enacted to replace the 1926 legislation which added to the powers of the high court to institute proceedings not only for contempt of itself but also for the lower courts. the 1952 act, however, was broad in scope, with unclear definition, and had procedural issues with initiating and conducting the contempt proceedings which necessitated the government to appoint a committee under the chairmanship of shri h.n. sanyal,18 to study and scrutinize the entire law relating to contempt of court in india. apart from the above factors, maintain a balance between the judicial independence and accountability was one of the major concern due to a fear of abuse of such broad powers. the committee submitted its report on february 28, 1963, based on which the parliament enacted the contempt of courts act, 197119. 7 j. moskovitz, ‘contempt of injunctions, civil and criminal’ (1943) 43 col. l. rev. 780. 8 mriganka shekhar dutta & amba uttarkak, ‘contempt of court, finding the limit’, 2 nujs l. rev (2009) 9 the charter act, 1774, § 21, no. 63, acts of parliament, 1774 (united kingdom concerning india) 10 the indian high courts act, 1861, § 9, 11, no. 104, acts of parliament, 1861 (united kingdom concerning india) 11 the letters patent act, 1865, no. 15, acts of parliament (united kingdom concerning india) 12 contempt of courts act, 1926, no. 12, acts of parliament, 1926 (india) 13 india const. art. 129 14 india const. art. 215 15 india const. art. 19(2) 16 india const. art. 19(1)(a) 17 the contempt of courts act, 1952, no. 32, acts of parliament, 1952 (india) 18 h.n. sanyal committee, report of comm. on contempt of court, h.d. 153 at 61 (1963) 19 the contempt of courts act, 1971, no. 70, acts of parliament, 1952 (india) http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 3 the contempt of courts act, 1971 is a unique legislation that seeks to safeguard the process of administration of justice, “unhampered and unsullied by wanton attacks”20, to enable the courts to discharge their functions properly, and to uphold the dignity and majesty of the courts of law21. according to the act, contempt can be either civil or criminal. section 2(b) of the act defines civil contempt as “wilful disobedience to any judgement, decree, order, direction or any other process of court or wilful breach of an undertaking given to court.”22 criminal contempt has been defined in section 2(c) of the act as: “publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends, the administration of justice in any other manner.”23 the purpose of civil contempt is to enforce the judgement by compelling the contemnor or the judgement-debtor to do benefit to the other party, while in criminal contempt, the proceeding is of a penal nature and enjoins punishment for a wrong done to the public at large, by interfering with the normal process of law that degrades the majesty of the court.24 broadly, contempt of court is of three kinds: (a) “contempt of court in the face of court” which is committed during the court proceedings or in the immediate vicinity of the court; (b) “contempt of court in obstructing the course of justice” where the press attempts to prejudge an issue in a trial; (c) “contempt by scandalizing the authority of court” where a judge is imputed with bias/motives or where the status or dignity of a judge or court has been affected. the scope of inquiry of this article is the third kind, i.e., the “scandalizing the authority of court” element of criminal contempt which is the most controversial in its use and language. in this article, the authors mainly trace the importance given to mental element of the accused ‘contemnor’ while adjudicating the “scandalizing the authority of court” contempt proceedings in india. section ii provides a brief overview of the existing principles as applied by the courts while dealing with cases under this class of contempt. it also begins with pointing out general fallacies in the law. section iii highlights specific contradictions in the law with the help of selected precedents. section iv attempts to highlight the negligible weightage given by the courts and the existing legislative framework to the mental element of the contemnor while adjudicating these cases and makes a case for heightened scrutiny by the courts into the 20 commissioner, agra v. rohtas singh, [(1998) 4 scc 409] 21 supreme court bar association v. union of india & anr., [(1998) 4 scc 409] 22 contempt act, 1971, supra note 15, § 2(b) 23 contempt act, 1971, supra note 15, § 2(c) 24 vijay pratap singh v. ajit prasad, air 1966 all. 305 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 4 mens rea element. while doing so, assistance is sought from the practice as existing in other countries. section v is the conclusion. ii. the many irregularities in the ‘scandalizing’ jurisprudence the phrase ‘scandalizing the authority of court’ was first used by lord chancellor hardwicke in 1742 in roach v. garvan (or hall)25. the very origin of this branch has been described as both “dubious and controversial.”26 the celebrated dictum of justice wilmot in his undelivered judgement in wilkes case27, way back in 1765 is considered as the locus classicus on the subject and serves as the origination of the concept of “scandalizing the authority of the court”. wilmot observed that the entire objective of the law of contempt was to keep a ‘blaze of glory around judges’, to prevent people from making judges ‘contemptible in the eyes of the public’. ‘scandalizing the court’ has been defined by the supreme court of india, as being any publication or action which has the effect of lowering the dignity or majesty of the court in the eyes of the public and causing or likely to cause obstruction in the administration of justice.28 it has the generalistic aim of preventing the undermining of public confidence in the administration of justice29 from baseless attacks on the integrity or impartiality of courts and judges30. thus, it can be applicable at any time. however, in the present day context, the foundation of the contempt law is “illfitting”31, as the supreme court of india still subscribes to the colonial notion that stories which appear in print in india are likely to be believed here because many indians are ignorant, as against englishmen who may be sceptical when they read such stories.32 in markarha,33 the supreme court of india held that if a ‘slight suspicion’ is created in the minds of illiterate villagers that judges pre-judge the cases, they would lose confidence in the administration of justice. in harijai,34 the supreme court of india said that something which appears in print is likely to be believed by the ignorant, which is why restrictions on the press were essential. more recently, in the prashant bhushan case,35 the supreme court of india amplified this notion by making a far-fetched observation that the impression which the contentious tweet tended to give to an ordinary citizen is that when historians 25 (1742) 2 atk. 291, 469 26 borric & lowe, law of contempt 3rd edition 331 (lexisnexis butterworths 1996) 27 r v. almon, 1765 wilmot 243 28 in re: arundhati roy, air 2002 sc 1375; brahma prakash sharma & ors. v. the state of uttar pradesh, 1953 scr 1169; in re s. mulgaokar v. unknown, (1978) 3 scc 339; e.m.s. namboodripad v. t. narayan nambiar, 1970 scc (2) 325; perspective publications v. state of maharashtra, air 1970 sc 221; r.k. anand v. registrar, delhi high court, (2009) 8 scc 106 29 chokolingo v. af of trinidad and tobago, [1981] 1 all er 244, ¶ 248 30 gallagher v. durack, (1983) 152 clr 238, ¶ 243 31 mriganka supra note 4, at 55 32 abhinav chandrachud, republic of rhetoric 16 (penguin random house india 2017) 33 rama dayal markarha v. state of madhya pradesh, 1978 air 921 34 in re: harijai singh and anr., air 1997 sc 73 35 in re: prashant bhushan and ors., air 2020 sc 4114 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 5 look back, the impression they will get is that the supreme court of india had a role in the destruction of democracy. moreover, the court noted that the tweet reached millions of people, thus assuming that these millions of people were gullible enough to believe the tweet and develop a sense of disbelief towards the institution of judiciary. therefore, we can safely conclude that there is no clarity as to what constitutes ‘scandalizing the court’. the very definition is vague and indeterminate, shrouded in uncertainty.36 what adds to this uncertainty and ambiguity is the inherent jurisdiction vested in the supreme court of india and the high courts under article 12937 and article 21538 of the constitution respectively. contempt jurisdiction of the court, derived from articles 129 and 215 of the constitution, is sui generis39 and the contempt of courts act, 1971 merely sets out the procedure to be followed by the courts while exercising the contempt jurisdiction. therefore, the constitutional power of the supreme court of india and the high courts to rule on their own contempt cannot be curtailed by any legislative action including the act of 1971.40 the courts are not bound to stick to a specific procedure as is the case for other offences41 till the time they adhere to principles of natural justice and rule of law.42 this legislative vacuum in the definition leaves much scope for the individual cases to be decided in an arbitrary manner with no clarity or uniformity in its application. an apt example of this is the consistent withering away of the difference between the judiciary and a judge. it has been held by the supreme court of india that there is a difference between the insinuations casted on a judge as a judge and the insinuations casted on a judge as an individual. while the former is actionable as a contempt of court, the latter isn’t. the valid action for such insinuations is a civil or criminal action for defamation.43 but it has also been observed by the supreme court of india that libellous criticism of a judge as an individual may ridicule the judge leading to hindering the administration of justice by the particular judge.44 thus, the difference between the two is practically obliterated. moreover, this distinction is more academic than practical as there have hardly been instances where aspersions or insinuations casted on judges have seen the fate of a defamation suit. it is common knowledge that every criticism of the judges or the judiciary, if it has to enter the courtroom, it is only through the passage of contempt proceedings. 36 fali s. nariman, contempt of court: nja occasional paper series no. 2, nja occasional paper series (january 2004), http://www.nja.nic.in/jounals_publications_newsletters/nja%20ocacasional%20 paper%20series%20no.2.pdf 37 india const. art. 129 38 india const. art. 215 39 sahara india v. sebi, air 2012 sc 3829; r.k. anand v. registrar, delhi high court, (2009) 8 scc 106 40 pritam pal v. high court of madhya pradesh, jabalpur through registrar, [(1993) supp. (1) scc 529] 41 in re vinay chandra mishra, air 1995 sc 2348 42 sukhdev singh sodhi v. the chief justice and judges of the pepsu high court, 1954 air 156 43 brahma prakash sharma, supra note 24; baradakanta mishra v. the registrar of orissa high court, 1974 air 710 44 p.n. duda v. v.p. shankar & ors., 1988 air 1208 http://doi.org/10.17561/tahrj.v22.8305 http://www.nja.nic.in/jounals_publications_newsletters/nja%20ocacasional%20paper%20series%20no.2.pdf http://www.nja.nic.in/jounals_publications_newsletters/nja%20ocacasional%20paper%20series%20no.2.pdf bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 6 this is further worsened by the initiation of suo moto contempt proceedings by the courts. section 15(1) of the contempt of courts act, 197145 enables the courts to take action on its own motion against the alleged contemnors. in the proceeding for contempt of court, the jurisdiction is unusual which combines the “judge, jury and hangman”46 and the judges are called upon to decide the issue of harm to the reputation of their brethren judges. this makes a serious case of violation of principles of natural justice.47 it is more sensible for the courts to enter into such enquiry only upon being approached by those who are irked by such publication. moreover, it casts a doubt regarding the selectiveness of the courts in initiating these proceedings. for instance, the supreme court of india proceeded on its own motion against the lawyer and activist prashant bhushan for his infamous tweets against the then cji and the last four ex cjis.48 whereas, no proceedings have been initiated against the former cji for his comments in a media event that the ‘judiciary is ramshackled’ and that ‘who goes to the court?’49 upon a perusal of the previous cases of contempt where similar statements have been punished, these words clearly have a prima facie effect of shaking people’s confidence in the judiciary. there have been many such instances which will be discussed in the next section of the article. one of the justifications given in support of the existence of powers for punishment for contempt is that judges are incapacitated from replying to the criticisms or the insults due to the nature of the office they hold.50 in re: patrick anthony chinamasa,51 a judgement of the supreme court of zimbabwe gubbay cj stated: “unlike other public figures, judges have no proper forum in which to reply to criticisms. they cannot debate the issue in public without jeopardizing their impartiality. this is why protection should be given to judges when it is not given to other important members of society such as politicians, administrators and public servants.”52 however, the observations of lord denning in regina v. commissioner of police of the metropolis, ex parte blackburn (no. 2),53 must be emphasized here that “critics must remember that from the nature of our office, we cannot reply to their criticisms’, that 45 contempt act, 1971, supra note 15, § 15(1) 46 sc bar association, supra note 17 47 rakesh shukla, contempt powers of indian courts don’t measure up to principles of natural justice, the wire (5 august 2020), https://thewire.in/law/contempt-powers-of-indian-courts-dont-measure-up-tothe-principles-of-natural-justice 48 prashant bhushan, supra note 31 49 ‘who goes to court?’ ex-cji ranjan gogoi says judiciary is ‘ramshackled’, https://www.livelaw.in/ top-stories/who-goes-to-court-ex-cji-ranjan-gogoi-says-judiciary-is-ramshackled-169809 (last visited on 14 june 2021) 50 nja occasional paper series, supra note 32 51 s.c. 113/2000, 6 november 2000 ¶ 24 52 s.c. 113/2000, 6 november 2000. 53 [2002] ukhl 20 http://doi.org/10.17561/tahrj.v22.8305 https://thewire.in/law/contempt-powers-of-indian-courts-dont-measure-up-to-the-principles-of-natural-justice https://thewire.in/law/contempt-powers-of-indian-courts-dont-measure-up-to-the-principles-of-natural-justice https://www.livelaw.in/top-stories/who-goes-to-court-ex-cji-ranjan-gogoi-says-judiciary-is-ramshackled-169809 https://www.livelaw.in/top-stories/who-goes-to-court-ex-cji-ranjan-gogoi-says-judiciary-is-ramshackled-169809 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 7 judges cannot enter into public controversy’, and that judges must rely on their conduct itself to be its own vindication.”54 it is important for the judges to realize that they are only highlighting the persons by giving them undue importance. the judges should, instead of attempting to replying to the critics by punishing them for contempt, focus on inspiring confidence of people through their conduct and judgements. as has been stated by hope j. in the australian case of attorney-general for nsw v. mundey,55: “there is no more reasons why the acts of courts should not be trenchantly criticized…..the truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.”56 apart from these concerns, the most disturbing and triggering concern is the lack of clarity as to what constitutes fair criticism. it has time and again been reiterated by the courts in its judgements that criticism within permissible limits is essential for the proper functioning of democracy. yet, there is no uniformity in the application of the concept by the courts (as will be shown in the next section) and the crucial question remains : what exactly is permissible criticism? iii. what exactly is permissible criticism: the baffling precedents this section exhibits the contradictions and lack of uniformity in the approach of the courts while dealing with the defence of fair criticism in scandalizing cases by citing four selected judgements of the supreme court of india. these 4 cases are landmark cases on criminal contempt by ‘scandalization’ in india. first two cases are instances of similar speeches made by politicians with a minor caveat that accused in the second case was also a former high court judge. in next three cases, two are related to senior lawyers and one is related to a famous author. iii.i. namboodripad and p.n. duda the first case is that of namboodripad,57. in this case, the supreme court of india was considering the statements made by the former chief minister of kerala, at a press conference where he had called the judiciary an ‘instrument of oppression’. he accused judges of being ‘guided and dominated by class hatred, class interests and class prejudices’, that indian judges would decide a case in favour of a “‘well-dressed, pot-bellied, rich man’ against ‘a poor, ill-dressed and illiterate person’” and that the judiciary was “weighed 54 [2002] ukhl 20 55 (1972) 2 nswlr 887 56 id., at para 908 57 namboodripad, supra note 24 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 8 against workers, peasants and other sections of the working class”. he also suggested that judges should be elected not nominated as the judiciary was subject to the influence and pressure of the executive. he contended in his appeal before the supreme court that he based his claims on the theory of marx and engels. the court while finding him guilty of contempt held that he had overstepped the limits of permissible criticism under article 19(1)(a) by presenting a “distorted and poor picture of judiciary”. the court observed that the appellant had “deliberately distorted the writings of marx, engels and lenin for his purpose”.58 whether he deliberately did so or he genuinely misunderstood the teachings of marx and engel was not of its concern. about two decades later, the supreme court of india dealt with similar facts in p.n. duda,59 where it was considering a speech made by union law minister and former high court judge, p. shiv shankar wherein he stated that “the supreme court composed of the element from the elite class had their unconcealed sympathy for the haves, i.e., the zamindars and as a result, they interpreted the word ‘compensation’ in article 31 contrary to the spirit and the intendment of the constitution” due to which the entire programme of zamindari abolition suffered a setback. he went on to say that: “madhadhipatis like keshavananda and zamindars like golaknath evoked a sympathetic cord nowhere in the whole country except the supreme court of india. and the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the supreme court in cooper’s case. antisocial elements i.e. fera violators, bride burners and a whole horde of reactionaries have found their heaven in the supreme court.”60 it is obvious that the comments made by the respondent in this case were in essence the same as those made by namboodripad. the supreme court of india held that he was not guilty of contempt of court on the ground that he was only making a study of the attitude of the supreme court. the court observed that “in a study of accountability if class composition of the people manning the institution is analysed…..it cannot be said that an expression or view or propagation of that view hampers the dignity of the courts or impairs the administration of justice.” it is interesting to note that the court wasn’t concerned with the factual correctness of the words in this case while for the same words in namboodripad, the court sat to elaborate on the true import of the theories of marx and engels. critics pointed out that the fact that shivshankar was a former judge of a high court was the difference between him and namboodripad.61 58 air 1970 sc 2015 59 shiv shankar, supra note 40 60 1988 air 1208 61 s.p. sathe, accountability of the supreme court, 37 e.p.w 1384 (2002), https://www.epw.in/ journal/2002/15/commentary/accountability-supreme-court.html http://doi.org/10.17561/tahrj.v22.8305 https://www.epw.in/journal/2002/15/commentary/accountability-supreme-court.html https://www.epw.in/journal/2002/15/commentary/accountability-supreme-court.html vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 9 iii.ii. hari singh nagra and prashant bhushan both of these are the cases of criminal contempt against senior lawyers of the supreme court of india. in hari singh nagra,62 the supreme court of india was considering statements made by senior advocate kapil sibal, regarding the “questionable integrity of some of those who are in judiciary”; “the judges need disciplining”; that some judges had received “monetary benefits for judicial pronouncements, rendering blatantly dishonest judgement” and that some judges had been “kowtowing with political personalities and obviously favouring the government….thereby losing all sense of objectivity”. the supreme court of india found that this did not amount to contempt for the reason that his message was an articulation of the concerns of a senior advocate with an experienced practice in the supreme court, who upon noticing that the public image of the legal community was dipping, made such statements for precautionary effect. thus, the court was much impressed by the prowess of sibal, that he being in the fraternity knew more and thus could fairly exercise his right to criticize. in saying so, the supreme court of india pacified the rather uncanny and unusual test of fair criticism laid down by it in the case of re: arundhati roy,63: “…fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. to ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. all citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself.”64 the propriety of this test seems logically unpalatable. by holding so, the courts have held that only those who have considerable knowledge of the legal field are entitled to criticize the courts, and not others. as has been seen, this reasoning found favour with the supreme court of india in sibal’s case. it is interesting to note that the respondent in re: arundhati roy,65 was a booker prize winning author. so, if she was not viewed by the court to be enough well versed to be able to comment on the courts, then it is not clear who, except the persons from the legal community themselves, will be so able. quite interestingly, in the infamous case of prashant bhushan,66 the supreme court of india did not seem to follow this reasoning while convicting the advocate for saying in his tweet that “cji rides a 50 lakh motorcycle belonging to a bjp leader without a mask or helmet at a time when he keeps sc in lockdown mode denying citizens their fundamental 62 hari singh nagra & ors. v. kapil sibal & ors., 2011 cri lj 102 (sc) 63 air 2002 sc 1375 64 id. 65 id. 66 prashant bhushan, supra note 31 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 10 right to access justice” and that “when historians in future look back at the 6 years to see how democracy has been destroyed in india even without a formal emergency, they will particularly mark the role of the supreme court in this destruction, & more particularly the role of the last 4 cjis”. the court observed that the contemnor had “indulged in an act tending to bring disrepute to the administration of justice”. he was expected to act as a responsible officer of the court. hence, despite the contemnor having a practice of 30 years in the supreme court of india and the delhi high court, the test as laid down in arundhati roy,67 was clearly not followed by the supreme court of india. the legal standing of the contemnor, instead of acting as an exonerating circumstance, weighed as a factor for the court to find him guilty; quite contrary to the ruling in hari singh nagra,68. it is clear from these decisions and the other irregularities highlighted in the preceding section that there is no uniformity and consistency in the practice and application of law by the courts in the matter of punishing for criminal contempt and that it is surrounded by numerous contradictions. it is in these circumstances that the authors argue in the subsequent section in the favour of an inquiry into the mental element of the alleged contemnor making the contemptuous comment as one of the possible solutions to the vagueness surrounding this element of criminal contempt. the next section analyses the possibility of narrowing it down by making mens rea a relevant consideration for determining guilt in ‘scandalizing’ cases. iv. mens rea element in ‘scandalizing’ cases: existing practice and suggested developments mens rea is an essential ingredient of any crime along with the actus reus. contempt proceedings are quasi-criminal in nature and standard of proof required is that of criminal proceedings. thus, the charge has to be established beyond reasonable doubt.69 since, the nature of proceedings and the burden of proof is the same in contempt proceedings as that of criminal cases, it is not understood why mens rea is not operative in the case of the former and is only relevant at the stage of punishment. it must also inform the judges while finding the guilt of the respondent. in other words, there must at least be some intention or malice to publish the writing or utter the allegedly contemptuous word(s). iv.i. existing practice: strict liability for scandalizing the authority of the court there are several defences available to an alleged contemnor in an action for committing contempt by scandalizing the authority of court. section 5 of the 1971 act provides that “a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.”70 section 13(b) states that “the court may permit, in any proceeding for contempt of court, 67 arundhati roy, supra note 59 68 hari singh nagra, supra note 58 69 mrityunjoy das & anr. v. sayed hasibur rahaman & ors., air 2001 sc 1293 70 contempt act, 1971, supra note 15, § 5 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 11 justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”71 both the defences are qualified and thus operate in limited sense. apart from these two defences explicitly stated in the act, section 8 provides that “nothing contained in this act shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of the act”.72 there is no explicit mention of the defence of intention with respect to scandalizing the court element of criminal contempt in the 1971 act. it has to be seen whether absence of mens rea was a valid defence in the judgements of the supreme court of india before the enactment of the act for it to come within the ambit of section 8. the opinions on this subject have been contradicting with the consensus heavily in favour of exclusion of the defence of intention. in re: marmaduke pickthall,73 one of the landmark judgements on the subject from the pre-independence era, an editor of a popular newspaper mentioned in an article that judges had been influenced by outside agency in deciding a case. justice shah found that the tendency of the article was to undermine the dignity of the court and the contemnor was found guilty of contempt. while holding so, justice shah held that the proper approach was to look at the ‘natural and probable effect’ of the article, and not at the ‘avowed intention of the editor’. thus, the intention was not an essential constituent in the contempt proceedings in 1923 when this judgement was pronounced. ten years later in chhaganlal,74 one can find the judges of bombay high court acquitting an assessor of contempt for lack of intention. the assessor was fined by the sessions judge for being improperly dressed in the court. the bombay high court found that his intention was to ensure his own comfort, not to insult the court. as is visible from these two contrasting judgements, there was no clear and discernible trend regarding the question of intention in the contempt trials by the colonial courts. it is to be seen if the post-independence indian courts accorded weightage to the mens rea element. one of the very first and important judgements rendered by the supreme court of india after the enactment of the constitution was brahm prakash sharma,75 wherein it was held that to constitute contempt, it is sufficient if the words are likely to interfere with the administration of justice; and it is not necessary to prove that the words actually lead to such interference. in laying so, the court made no mention of the weight attached to the mental element of the contemnor. but the air was cleared by the supreme court of india in 1969 in namboodiripad,76 wherein the court categorically ruled out the scope of intention by laying down that whether or not the effect was intended by the appellant 71 id. § 13(b) 72 id. § 8 73 (1923) 25 bom lr 15 74 chhaganlal ishwardas shah v. emperor, 1933 scc online bom 96 75 brahma prakash sharma, supra note 24 76 namboodripad, supra note 24 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 12 is a consideration for imposition of punishment and is not germane for recording a finding of guilt. it is enough, to fix the liability, if the words are likely to interfere with the administration of justice. hence, it can be seen that intention was not available as a defence before the enactment of the 1971 act and is thus not covered by section 8 of the act. it is now to been seen if the defence of intention has been identified in the judgements delivered after the 1971 act. in re: s. mulgaokar,77 one of the most crucial judgements from the 1970s decade after the 1971 act came into force, krishna iyer j. of the supreme court of india laid down six rules/principles to be considered before exercising the contempt power in the cases concerning scandalizing the court. in the sixth rule, it was laid down as under: “….after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike, a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.”78 with these words, krishna iyer j. in a sense laid the foundation for the intention as a weighing factor in the criminal contempt jurisprudence. but, beg cj, in his separate opinion, to an extent read it down in the following words: “my opinion on matters touched by my learned brother krishna iyer is that, although, the question whether an attack is malicious or ill intentioned, may be often difficult to determine, yet, the language in which it is made, the fairness, the factual accuracy, the logical soundness of it, the care taken in justly and properly analysing the materials before the maker of it, are important considerations. moreover, in judging whether it constitutes a contempt of court or not we are concerned more with the reasonable and probable effects of what is said or written than with the motives lying behind what is done. a decision on the question whether the discretion to take action for contempt of court should be exercised in one way or the other must depend on the totality of facts and circumstances.”79 thus, the scrutiny into the mens rea of the contemnor was substantially read down to almost a non-existing level by beg cj. to what extent the judgement has shaped the law on the subject is unclear as the court ultimately dropped the proceedings and thus, didn’t have an occasion to venture into the intention of the person in writing the article. the court ultimately pacified the ‘inherent tendency’ or the ‘natural and probable effect’ test to determine the guilt in contempt cases. the ‘inherent tendency test’ has been echoing in the judgements of the various high courts and the supreme court of india till date. in pritam pal,80 the supreme court 77 (1978) 3 scc 339 78 mulgaokar, supra note 73, at para 33 79 id., at para 17 80 pritam pal, supra note 36 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 13 of india after relying on lord justice donovan in attorney general v. butterworth,81 pronounced that “an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt and it is enough if the action complained of is ‘inherently likely to so interfere’”. in d.c. saxena,82 the supreme court of india completely ruled out the relevance of mens rea in deciding the liability by observing as under: “it is true that in an indictable offence generally mens rea is an essential ingredient and required to be proved for convicting the offender but for a criminal contempt as defined in section 2(c) any enumerated or any other act apart, to create disaffection disbelief in the efficacy of judicial dispensation or tendency to obstruct administration of justice or tendency to lower the authority or majesty of law by any act of the parties, constitutes criminal contempt. thereby it excludes the proof of mens rea. what is relevant is that the offending or affront act produces interference with or tendency to interfere with the courses of justice……..it is, therefore, not necessary to establish actual intention on the part of the contemnor to interference with the administration of justice, making reckless allegations or vilification of the conduct of the court or the judge would be contempt.”83 more recently in 2016, the supreme court of india in mahipal singh rana,84 held that intention is relevant only for the purpose of deciding the quantum of punishment to be imposed. finally, in prashant bhushan,85 although the judgement mentioned the word ‘malicious’ eighteen times, the court ultimately based its finding of conviction on the likely effects of the tweet, as discussed in section iii. notably, the court applied the test if words were “calculated”86 to undermine the dignity of the institution to check whether the words were contemptuous or not, much like all the earlier judgements of the courts till date. although this might hint towards a trace of intention-searching in the judgements, it turns out to be counter-intuitive. what it really means was explained long back by the supreme court of india in the case of in re: p.c. sen,87 while dealing with comments made on pending proceedings, as follows: “the question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere with the due course of justice. the question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration 81 1963 (1) q.b 696 82 1996 scc (7) 216 83 id. at para 40 84 mahipal singh rana v. state of u.p., (2016) 8 scc 335 85 prashant bhushan, supra note 31 86 ck daphtary v. op gupta, 1971 air 1132; in re hira lal dixit, 1955 1 scr 677; brahma prakash sharma, supra note 24; mulgaokar, supra note 73; pritam pal, supra note 36; d.c. saxena, supra note 78; prashant bhushan, supra note 31; see also professor goodhart, newspapers on contempt of court, (1935) 48 harv l. rev. 885, 898 87 air 1970 sc 1821 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 14 of justice……… if, therefore, the speech which was broadcast by the chief minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the court even assuming that he had not intended thereby to interfere with the due course of justice.”88 the word ‘calculated’, in the sense it is applied by the courts means whether or not the words or actions interfere or are likely to interfere with the course of justice. thus, it is fairly established from the practice of the courts that the intention or mental state of the alleged contemnor is not a relevant consideration while deciding the cases pertaining to ‘scandalizing the authority of court’. this is also reflected in section 13(a) of the act which states that no court shall impose a sentence under this act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.89 hence, it can be safely concluded that contempt by scandalizing the authority of court is arguably a strict liability offence in india. iv.ii. heightened scrutiny of mens rea: a desirable way forward it is clear beyond doubt that there is arbitrariness and uncertainty in this element of contempt as there is no uniformity in its application which seems to be whimsical. this makes the law on contempt far stricter in india than elsewhere.90 in fact, the high courts in india have been more keen to protect the dignity of the judges than look at the matter from the point of view of the freedom of expression.91 the ‘inherent tendency’ test, applied in india as discussed in the preceding sections, leaves no scope for the intention to be enquired into by the courts. the virtual effect of this practice and its ambiguity is that once the court makes a prima facie view regarding the contemptuous nature of the publication, there is hardly any substantial and certain defence available to the publisher and they are left to the unlimited discretion of the judges. arguably, the contempt law, especially the ‘scandalizing’ element, is an unreasonable restriction on the right of the citizens to freely criticise the judiciary and its judgements under article 19(1)(a). it is a settled proposition of law that any restriction on a fundamental right must not be excessive and disproportionate.92 while exercising their power to punish for ‘scandalizing’, the courts have held that it is to protect the public interest in preserving their faith in the administration of justice and confidence in the institution of judiciary from shaking, that they exercise this power.93 thus, while exercising contempt jurisdiction, the two rights, i.e., right to criticize and the right to public interest in the administration of justice are pitted against each other and need to be 88 p.c. sen, supra note 83, at paras 8-9 89 contempt act, 1971, supra note 15, § 13(a) 90 grossman, freedom of speech and expression in india, 4 u.c.l.a.l.r. 64 (1957) 91 rajeev dhawan & balbir singh, publish and be damned – the contempt power and the press at the bar of the supreme court, 21 j.i.l.i. 1, 8 (1979) 92 anuradha bhasin v. union of india, (2020) scc online sc 25; justice k.s. puttuswamy v. union of india, (2019) 1 scc 1 93 hira lal dixit, supra note 82; ck daphtary, supra note 82; baradakanta mishra, supra note 39; brahma prakash sharma, supra note 24; prashant bhushan, supra note 31 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 15 balanced. the manner in which the law fixes the liability strictly in ‘scandalizing’ cases is “unjust”94 and leads to excessive curtailment of the citizens’ freedom to criticize. the balance is tilted heavily in favour of protecting the dignity of the courts in comparison to the article 19(1)(a) right. the authors argue that it is highly desirable that the liability for criminal contempt must, inter alia, be based on intention especially from the perspective of preserving the public interest in freedom of expression and in consonance with the general principles of criminal liability. the authors are of the view that the constitutional courts have conveniently adopted the route of withering away with the requirement of intention which, although creates an additional burden of proof during the trial apart from the act itself, also acts a catalyst in easing the fixation of liability by the courts by depriving the alleged contemnor of the said defence at the very threshold. it can safely be stated that the additional requirement of intention will act as a necessary check upon the powers of the courts and ensure the protection of the citizen’s right to legitimately criticize the judiciary. while there is much for the judges to self-realize that it is not by stifling criticism, but by rendering fearless judgements that they can ensure public confidence in the judiciary; it is opined that adopting a method of ‘heightened scrutiny’ into the mental element of the publisher/contemnor will go a long way in reforming the law and preserving the precious free speech of the rights. as regards the standard of mens rea inquiry, the authors suggest that the courts must endeavour to record a subjective satisfaction regarding the existence of intention basis the pleadings and evidences tendered by the alleged contemnor which is analogous to a regular criminal trial. the courts must factor-in the surrounding circumstances in which the words are uttered or published along with the mental frame of the alleged contemnor while uttering them and possible motives behind the same. it is imaginable that there occur instances where a person utters words either negligently or carelessly which though she didn’t intend to offend the dignity of justice, have the effect of irking the judges. for instance, a litigant, who after a long courtroom battle, loses the case and utters words in an outspoken manner in a sheer state of frustration although she has no intention to undermine public confidence in judiciary. in such cases, it is not proper if the person is punished by application of ‘inherent tendency’ test; the court should not be impressed solely by the tone of the words and its effect. it should rather see through the mental state of the person and ignore the comments as being in bad taste. the test of mens rea element is not alien to deciding the cases for ‘scandalizing the authority of court’. re hira lal, judgement is arguably the best and one of the only judgements where the supreme court of india made a substantial enquiry into the object of the contemnor in publishing the pamphlets and held that “the ‘object of writing this paragraph’ and particularly of publishing it at the time it was actually done was quite 94 shubham kashyap kalita & raajdwip vardhan, ‘contempt of court vis-à-vis freedom of speech and expression in reference to the curious case of prashant bhushan: paving the way for constructive criticism’, 11 iclrq 131 (2020) http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 16 clearly to affect the minds of the judges and to deflect them from the strict performance of their duties.”95 the judgement is one of its kind as it heavily considered why the contemnor distributed those pamphlets in the background of the effect of distributing the pamphlet. iv.iii. comparative study of scrutiny of mens rea element in other common law jurisdictions for the purpose of maintaining homogeneity in the conditions and circumstances in which their contempt of court laws were made and evolved, the authors have majorly taken up examples of former colonies of britain who gained full independence from the english crown after the independence of india. while the contempt trials in india have almost patently refused to consider the intention behind the publication or the words, it is apposite to refer to these jurisdictions where the courts have been more receptive and seemingly give weightage to intention while deciding the culpability for the alleged contemptuous material. for instance, the ‘inherent tendency’ test, as is adopted by india, has also been rejected by the court of appeal of singapore in its landmark shadrake alan,96 case on the ground that proof of intention on the respondent’s part to interfere with the administration of justice was not required under this test. the court propounded a new ‘real risk’ test.97 under this test, the threshold for liability is “a real risk, as opposed to a remote possibility”.98 while the semantic or theoretical analysis of the term “real risk” cannot trump factual considerations which may be unique to each case, it can be seen that the real strength of the test lies in its practicality and the trust in the courts for an objective judgement, as far as possible.99 however, the weakness of the real risk test lies in this very discretion of the courts. it should be noted that the ‘real risk’ test also steers clear from the inclusion of mens rea as a parameter to determine contempt.100 this was explained in the english case of odhams press ltd., ex p. attorney-general,101 wherein the divisional court stated that “the test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result.”102 post the shadrake alan case103 in 2011, the judiciary once again was faced with the question of whether mens rea requirement is to be seen while determining the offence 95 hira lal dixit, supra note 82 96 shadrake alan v. attorney general, [2011] sgca 26 97 r v. glennon, (1992) 173 clr 592; wong yeung ng v. secretary for justice, [1999] 2 hkc 24 98 r v. duffy, ex parte nash [1960] 2 qb 188 ¶ 200; attorney-general v. times newspapers ltd [1974] ac 273 ¶ 298-299; state v. mamabolo 2001 (5) bclr 449 at 68 ¶ 45 99 shadrake, supra note 92, at para 29 100 john fairfax & sons proprietary ltd. v. mcrae, (1955) 93 clr 351 ¶ 371 101 [1957] 3 all er 494 102 ibid., ¶ 497 103 shadrake, supra note 92 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 17 of scandalizing the court in au wai pang104. here also, the supreme court of singapore denied any requirement of intention and continued with the ‘real risk’ test. what is evident from this is that the requirement of intention is limited only till the fact that a contemnor intended to “publish or act” in the contemptuous manner, that is mens rea is restricted to intention or knowledge of actus reus and is not extended to whether there was intention to bring about the effect of undermining the judicial system and interfering with administration of justice through such actus reus. keeping the above in mind, it is important to note that while the singapore jurisdiction does not require “intention to bring about the effect of undermining the judicial system” for the entirety of the cases falling within contempt of court including scandalizing of the court, however, it does not exclude it too. the singapore courts have interpreted section 3(1)(d) read with section 3(6) of the administration of justice (protection) act, 2016105 as following: “…section 3(1)(d) of the ajpa 38 turning to contempt under s 3(1)(d) of the ajpa, the actus reus is the act of either insulting the judge or causing any interruption or obstruction to the judge while the judge is sitting in court proceedings. this limb concerns acts of contempt in the face of the court i.e., ex facie contempt, which disrupts the court process itself. 39 the mens rea is the intention to offer such insult or cause such interruption or obstruction. further, s 3(6) of the ajpa provides that the contemnor is liable if he “knows or ought to have known that the act would prejudice or interfere with or obstruct or pose a real risk of prejudice to or interference with or obstruction of the course of the court proceeding [emphasis added].” compared to scandalising contempt under s 3(1)(a), there is an additional mens rea requirement as to the effect of the act on the court proceeding…”106 [emphasis supplied] thus, mens rea requirement as to the performance of the contemptuous act itself is a necessary requirement in singapore jurisdiction107 and though the extended mens rea as to the effect of the performance of the contemptuous act is not applicable to cases of scandalizing the court, it is used to bottle certain other forms of criminal contempt. this arguably sets a precedent for future adjudication of even scandalizing the court cases using the extendedmens rea requirement if the courts so choose to self-regulate themselves on this front. such usage can streamline the contempt jurisprudence giving clarity and form to its application. the famous south african decision of s v. van niekerk,108 has also held that the mens rea requirement features in the offence of scandalizing. claasen j. explained in 104 au wai pang v. attorney-general, [2016] 1 slr 992 105 the administration of justice (protection) act, 2016, no. 19, acts of parliament (singapore) 106 attorney general v. ravi s/o madasamy, [2023] sghc 78 107 attorney-general v. xu yuan chen, [2023] sghc 87] 108 1970 (3) sa 655 (t) http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 18 the case that the contemnor’s actions might well have amounted to contempt, from an objective standpoint, but upon applying a subjective test of mens rea the contemnor was relieved of liability. he observed: “before a conviction can result the act complained of must not only be wilful and calculated to bring into contempt but must also be made with the intention of bringing the judges in their judicial capacity into contempt or casting suspicion on the administration of justice. for this type of intention it is sufficient if the accused subjectively foresaw the possibility of his act being in contempt of court and was reckless as to the result.”109 the approach of the south african courts, while still not consistent to a sufficient degree to make mens rea requirement a part of contempt law, has more or less been to narrow the offence of scandalizing the court.110 one of the methods to narrow down and make consistent the offence of scandalizing the court is to make mens rea requirement a necessity as to the “undermining” effect of the actus reus. the question of mens rea requirement is most conclusively answered in the mauritian case of dhooharika v. director of public prosecutions111. the initial position of mauritian law on scandalizing the court was similar to the one that exists in singapore now, that is, there was a requirement of intention only to the extent of performance of contemptuous act and the same did not extend to whether there was intention to actually undermine the authority of the courts. the challenge to this position was once again taken up in dhooharika. the judges therein went into the question of mens rea subsequent to their study of the position in the law of england and wales. they referred to the remarks of lord atkin in the english case of ambard v. attorney-general for trinidad and tobago112: “provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.”113 basis the above consideration, the mauritian board concluded that if the defendant acts in good faith, then he is not liable and the burden of establishing bad faith on the defendant’s part was on the prosecution. this is evident from the following passage of the judgement: “…thus, at any rate once the defendant asserts that he acted in good faith, the prosecution must establish that he acted in bad faith. if the prosecution establish that he either intended to undermine public confidence in the 109 1970 (3) sa, ¶ 657 110 mambolo, supra note 94. 111 [2014] 3 wlr 1081 112 [1936] ac 322 113 [1936] ac 322 http://doi.org/10.17561/tahrj.v22.8305 vijay k. tyagi, vaibhav chadha, lavam tyagi, shambhavi srivastava the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 19 administration of justice or was subjectively reckless as to whether he did or not, that would in the opinion of the board, be evidence of bad faith…”114 this clarifies that the approach taken by the mauritian court herein was that mens rea for scandalizing the court should be an “intention to undermine public confidence in the administration of justice”. this is a stricter test of mens rea than seen in the singapore jurisdiction and is similar to the test evolved in the south african case of r. v. van niekerk. for the purpose of effective bottling of the offence of scandalizing contempt and streamlining it to ensure consistency in precedents, it is not advisable for india to adopt the ‘real risk’ test of singapore in its full spirit. rather, the test as adopted by south africa and mauritius seems more suitable for the purpose of making a heightened scrutiny into the intention of the contemnor. even the approach as manifested in hira lal,115 will go a long way in facilitating the intention search. v. conclusion as discussed above, there is no consistency in the application of the “scandalizing” jurisdiction of courts. there is no uniform code for its execution. the interpretation and application of law is entirely up to the wisdom of individual judges, thus resulting in a ‘rule of men, not law’. this is surely counter-productive as the courts in their exercise of contempt jurisdiction, aim to preserve the very holy constitutional principle of rule of law. this article has made a comparative analysis across several common law jurisdictions viz., singapore, south africa, mauritius and england, and their treatment of ‘scandalizing the authority of the court’. such comparative analysis has aided us to identify different tests and their degrees in the determination of the offence of ‘scandalizing contempt’. it also highlights the extents of mens rea itself, one being limited to “intentionally publishing or performing the contemptuous article or act, respectively” and second being an expanded requirement of “intention or knowledge of the undermining effect of such contemptuous act”. this article cannot conclude in a certain and straightforward manner whether there is an accepted practice of using ‘expanded’ mens rea as to the effect of the contemptuous act, as one of the essential conditions of scandalizing contempt. but it can, through the comparative analysis, show that criminal contempt is a contentious issue in most of the former colonies of england. each jurisdiction has dealt with ‘intention in contempt’ in a different manner after their independence. in terms of this treatment of ‘intention in criminal contempt’, there are three types of jurisdictions. one, jurisdictions having a mature understanding of mens rea in scandalizing contempt, for instance, mauritius. though, a disclaimer is definitely needed with regards to mauritius and its lack of sufficient cases to see whether the mens rea proposition there is indeed a long lasting and good law. second, jurisdictions like singapore that are still traversing how mens rea is to be applied to the question of contempt. though not fully evolved in their understanding, their path 114 dhooharika, supra note 107, para 48 115 hira lal, supra note 82 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law – a search for ‘intention’ in ‘scandalizing the court’ the age of human rights journal, 22 (june 2024), e8305 issn: 2340-9592 doi: 10.17561/tahrj.v22.8305 20 is comparatively streamlined with legislation and judicial pronouncements working in tandem. third, jurisdictions like south africa and india that do not have a streamlined approach to answering the question of criminal contempt. judicial pronouncements in such jurisdictions are dependent on the political nature of case and the sensibilities of the individual judges adjudicating on the question. this is not to say that there are no instances of courts in these countries taking a recourse to mens rea to see if the offence of scandalizing the court is made out. while these cases give sound reasoning, they fail to establish any jurisprudential milestone for future adjudications due to their intermittent nature. the authors suggest the indian courts shall be inspired from the development of the criminal contempt law, specifically the ‘scandalizing’ element, in these jurisdictions and move a step ahead by tracing more deeply into the mental element involved. the object behind this mens rea tracing boils down to the following two aspects: a. the form of criminal contempt law becomes concrete which can serve as a reference for the person making a critique as well as for the public that has to save itself from gullibility and resultant swaying against the judicial process as a potential result of such critique; b. this permits giving the expression ‘reasonable restrictions’ in article 19(2) of the indian constitution a comparatively exhaustive interpretation. this will lead to a better balance between protection of the judiciary and the fundamental right of the citizens. it is time that the lawmakers and the judges of the higher courts focus to overhaul the existing law so as to repair the damage done over years in the way of suppressing legitimate criticisms and keeping everyone clueless of what exactly can invite the liability for contempt. the nuances of the inquiry into the intention are to be worked out by both legislative and judicial efforts, however, it is suggested that the mens rea consideration as carried out by the indian courts during regular criminal trial effectively provides a solution to the contempt trials as well inasmuch as the courts adopt a holistic approach and refuse to oust the defence with respect to intention tendered by the alleged contemnor. this, the authors vehemently believe, will go a long way in making the ‘scandalizing’ element more certain and consequently, the restoration of the people’s entitlement to freely ventilate their ‘fair criticisms’ against the judiciary. received: 1st october 2023 accepted: 18th december 2023 http://doi.org/10.17561/tahrj.v22.8305 bottling the criminal contempt law a search for ‘intention’ in ‘scandalizing the court’ abstract i. introduction: a brief historical background ii. the many irregularities in the ‘scandalizing’ jurisprudence iii. what exactly is permissible criticism?: the baffling precedents iii.i. namboodripad and p.n. duda iii.ii. hari singh nagra and prashant bhushan iv. mens rea element in ‘scandalizing’ cases: existing practice and suggested developments iv.i. existing practice: strict liability for scandalizing the authority of the court iv.ii. heightened scrutiny of mens rea: a desirable way forward iv.iii. comparative study of scrutiny of mens rea element in other common law jurisdictions v. conclusion individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 1 individuals in international law: a historical shift towards agency natale serón arizmendi1 abstract: with the end of the second world war, the deficiencies of the traditional state-centred approach, grounded on the principle of sovereignty, became evident. elaborating on the limitations of the statesolo legal doctrine, this article provides insights into the evolution of the individual’s legal personality in international law, highlighting the decline of state-centrism and the rise of new actors and principles. to address this research goal, the article first explores the concept of legal personality and foundational views on individual subjectivity, then traces the progressive recognition of individuals’ autonomy, and finally assesses how the human rights paradigm has strengthened individual empowerment. keywords: legal subjectivity, agency, human rights, international accountability. summary:1. introduction 2. the conceptualisation and early discussion on the international legal subjectivity of the individual 2.1. natural law and the foundations of the international legal personhood 2.2. transcending legal positivism to embrace individual agency: a struggle for recognition 3. from objects to subjects: the legal recognition of individuals under international law 3.1. rising to the fore: reconceiving individual’s international legal personality 3.2. breaking free from the bonds of the state 4. human rights as driving forces behind the paradigm shift of the individual’s international subjectivity 4.1. redefining sovereignty in the age of human rights 4.2. the intersection of ngo action and the international self of the individual 5. concluding thoughts on the individual as a legal subject under international law 1. introduction the traditional conception of international law was characterised by an inter-state structure that perceived the nation-state as the solo subject of the global legal framework. founded on the so-called westphalian model and the european system of states (díaz barrado, 2016, p. 18.), classic international law was grounded on the principle of sovereignty. the treaty of westphalia brought to an end the religious confrontation that it was fought during the 17th century, and overcame the middle age legacy by breaking with the universal religious principles. this peace treaty constituted a paradigm shift from a universal moral conception to a national interest approach, which was based on the raison d’etat and the balance of power doctrine. along with adam smith, montesquieu and madison, the balance of power postulation argued in favour of powers operating out of their free will and advocated for states acting in their own nationalistic interest as a means to obtain a global common good (rojas, 2004, pp. 155-156). this discourse granted to the nation-state the status of central and unique actor in the international community. relying on the principle of national sovereignty, the state was holder of unlimited power and no international or national forces could hinder this dominion (held, 1997, p. 21). 1 phd. lecturer of public international law and eu law at the university of deusto (seron.natale@deusto.es). 10.17561/tahrj.v25.9536 mailto:seron.natale@deusto.es individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 2 after two world wars, the classical understanding of public international law was, however, openly questioned by the doctrine of the 20th century. humanitarian values were gaining ground and the principle of ‘primacy’ of international law was gradually imposing itself to domestic law as a response to an evolving international community. this reality resulted in the development of an international corpus juris aimed at directly regulating individual’s rights and duties, coupled with the consequent recognition of human being’s emancipation from the state (orakhelashvili, 2001, p. 244). upon this comprehensive reconfiguration of the global structure, the distribution of power units and the consolidation of the individual as a subject of law are readily observable in the matters discussed today within judicial chambers. from technology-related issues, such as ´dpc v. facebook ireland and schrems’ (cjeu, 2020) to climate change action, exemplified by ‘verein klimaseniorinnen schweiz and others v. switzerland’ (ecthr, 2024), individuals have seized the courts and invoked international law in the quest for voice and justice. acknowledging individual’s increasing role in courts as a catalyst for change, this article aims to analyse how, and to what extent, has the individual evolved from being a mere object, utterly neglected and overlooked by international law, to becoming not only a subject, but an active participant in a long state monopolised global law-making, capable of litigating emerging pivotal issues such as technology and climate change. in meeting this research goal, this article begins by conceptualising the notion of legal personality and examining the initial approaches to individual’s international subjectivity. from vitoria to bentham and austin, this first section addresses the principal features of both natural law, as well as legal positivism, in relation to the human being’s legal personhood. this is followed by an analysis that delves into the gradual emancipation of the individual, in light with lautherpatch’s legal philosophy. finally, this article concludes by examining the profound influence that the human rights regime exercised on the international acknowledgment of the individual’s legal subjectivity. 2. the conceptualisation and early discussion on the international legal subjectivity of the individual a natural first step to begin this analysis is to properly delimitate the definition of legal personality. this quality argued to be the primary feature of international subjectivity (nyssanbekova et al., 2016, p. 1462) takes shape by the power to be “the bearer of legal rights and obligations” (brölmann and nijman, 2017, p. 1). an alternative line of reasoning exists, however, arguing that being holder of rights and recipient of international duties is not enough to acquire the alleged subjectivity. for theorists within this segment of the doctrine, this legal capacity must be complemented with an active or passive entitlement: whereas the first prerogative enables the subject of international law to protect its rights by lodging international complaints against other subjects, the latter opens up the possibility of these same entities being hold responsible under international law and, hence, makes them susceptible to be brought before international courts and committees (carrillo santarelli, 2008, p. 3). 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 3 based on this conceptualisation of legal personality, this ‘abstraction’ that is often defined as the capacity for legal relations (smith, 1928, p. 283) can either be conferred by a general norm that endorses the compliance of an actor with the necessary requirements, or it can be attributed by virtue of a specific rule that grants rights and obligations, as well as competences or responsibilities, in particular cases (casanova and rodrigo, 2019, p. 171). in order to analyse whether this international subjectivity has already been attributed to individuals and if it has, how, a general overview of the doctrinal discussions in the field is required. 2.1. natural law and the foundations of the international legal personhood this dominant position of the state in the international community is the product of a prevailing legal orthodoxy that favours a purely inter-state outlook; in bartram s. brown’s (1992, p. 204) words, “international law was a law by and for states, in which the rights of individuals had no place”. this state-centric approach was openly challenged in the second half of the 20th century with the development of international humanitarian law and the increasing participation of non-state actors in international dynamics (zellweger and koller 2007, pp. 1619-1620). nevertheless, it should not pass unnoticed that statecentrism was already questioned prior to the post-second world war era by prominent academics such as the spanish author francisco de vitoria. this jurist of the 16th century agreed on the leading role of nations in the universal scheme, yet, he argued that individuals subjected to those nations do also constitute the universal legal order and, as such, their rights cannot be monopolised by domestic law. according to vitoria’s (2007, p. 41) line of thought, individual’s rights are a matter that reaches far beyond national jurisdiction, and these cannot fall in the arbitrary treatment of the state. drawing upon this rationale, the spanish jurist and philosopher advanced the idea of universal natural rights and set the basis of today’s human rights doctrine (fernández ruiz-gálvez, 2017, p. 20). vitoria (2007, pp. 50-51) insisted on the equality of every human being and advocated for the political freedom of every state and organised political group that make up the universal community, also referred as orbe. concerning this, vitoria’s iusnaturalist theory argues that different populations are politically organised and united by the human nature (rojano esquivel, 2013, p. 168). this community (totus orbis) is governed by natural law as well as by the so-called jus gentium, a universal law to which everyone is subjected and none can escape (fernández ruiz-gálvez, 2017, p. 27). accordingly, this society, formed prior to the division of nations, is superior to the will of states, i.e. jus naturalis societatis et communicationis (rojano esquivel, 2013, p. 168). building on vitoria’s work, francisco de suarez (2015, pp. 258-259) developed an international society that was aimed at the greater good of humankind and, relying on the previously referred jus gentium, sought to avoid actors forcing their will on others. in a similar line, hugo grotius’ (2005, p. 40) legal thinking remained centred on the jus gentium system instead of resorting to the theory of jus inter gentes. in other words, grotius’ theory ties in with the belief that the law of nations was an inter-individual law applied on a universal basis rather than an inter-state legal order (salako, 2019, p. 133). advancing this premise, the dutch juris asserts that the ‘societas gentium’ embraces 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 4 the humanity as a whole, and, thus, the international community cannot be grounded in the will of each state alone. by extension, sovereign states are not entitled to command a total and an unconditional obedience from its nationals as the raison d'état is not absolute but rather limited (cançado trindade, 2007, p. 277). in short, hugo grotius believed that law of nature targets both, states and individuals, and, on this basis, developed the idea of a ‘proto-contractarian system of rules’, which compels inter-state relations on the grounds of natural law principles, including sovereign independence, mutual toleration, peaceful commercial relations, humanitarian intervention, and the principle of the freedom of the seas (pavel, 2021, p. 221). influenced by the grocian line of thought, emer de vattel (1758, p. xxi) contributed to the international doctrine by arguing that, as a direct result to the absence of an international authority capable of compelling other actors of the global community, states were subjected by a body of rules adopted under the natural society and upon the interdependence of human beings. vattel held the view that human beings, by their very nature, were incapable of self-sufficiency. the author argued that there was an inevitable need for the protection and interaction among individuals, so that they could collectively defend themselves against external violence under the umbrella of natural law. ultimately, the individual requires the framework of society for proper perfection, being incapable of achieving development in isolation (peces-barba martínez and dorado porras, 2001, p. 120). unfortunately, in later authors, the universal outlook of the founding fathers of the discipline was overshadowed by the increasingly nationalistic positivist philosophy of law (cançado trindade, 2013, p. 216). with the emergence of legal positivism and the development of the state-centric law of nations, the object of analysis shifted from individuals to sovereign states. the individual was gradually excluded from the international legal construction pictured by the analysed pioneers, while the nationstate was propelled towards a new era where it was granted the status of solo subject of international law (salako, 2019, p. 133). 2.2. transcending legal positivism to embrace individual agency: a struggle for recognition founded on the ideas of fraternity and equality of the mankind, the construct of natural law reached its summum in the 18th century. nonetheless, along with prosperity, this philosophy of law attracted criticism and scepticism. among the critical voices was one of the main figures of the historical school of jurisprudence, friedrich karl von savigny (1831). reflecting on the german jurist’s words, reginald parker (1956, p. 32) noted that as with language and customs, the domestic legal system differs in each nation, hence, a norm that is believed to be right or good for one states may not be perceived as correct by other states. these criticisms evidenced a transition that had already begun with the adoption of the peace of westphalia in 1648 and that had, overall, culminated in the 19th century. the iusnaturalist theory morphed towards modernity with natural law being gradually replaced by positive international law (brown, 1992, pp. 204-205). 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 5 2.2.1. legal positivism and the erosion of individual autonomy this legal perspective is built on the premise that positive law, understood as the set of norms adopted under the authority of the state, is the only law possible (parker, 1956, p. 31). following this legal discipline, the nation-state, with its corresponding rights and obligations, is the solo subject of international law, while the individual is a mere subject of domestic law (pérez-león, 2008, p. 601). the state is, consequently, granted unrestricted freedom as regards its nationals by virtue of its sovereignty (orakhelashvili, 2001, p. 243). this philosophical legal approach finds its roots in jeremy bentham’s utilitarian line of thought and john austin’s theory of law. their view holds that appeals to natural law are, from start to finish, merely a veil for one’s personal opinion. quoting bentham words, postema (2019, p. 284) claims that “a thing ought not to be done because there is a law of nature against it’s being done, is an obscure and roundabout way of saying”, in most cases, “it ought not to be done, because i say it ought not”; ipse dixit, since i determine that it is, it is. bentham argued form this reasoning that the ambiguous character, and chaotic nature of the unwritten common law, called for a reliable legal code that would contribute to lead and determine behaviours, while reducing judges’ margin of interpretation. austin (2012, p. 267) goes a step further and suggested that only those rules adopted by a sovereign capable of imposing a sanction are legally valid. in his (2012, p. 278) view “the existence of a law is one thing: its merits or demerits are another thing (…) although it disagrees with a given or assumed test, a law set by the state, (…) is a law which the state has set.” these two theorists’ philosophies align with the doctrine of sovereignty developed by thomas hobbes. the british scholar was also of the opinion that law was dependent on the sovereign’s will. a relevant commentator of hobbes’ theory, jean hampton (1986, p. 107), stated that according to the english philosopher “no matter what a law’s content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law.” elaborating on this thought, hobbes (1885, p. 11) pointed out that a power superior to leviathan, a metaphor employed by the author to refer to the sovereign state, was not possible. this had to do with the fact that such dominion would go against the idea of ‘absolute power’; which was constituted as a key element of the state to protect itself from other counterparts (benavides-casals, 2016, p. 16). in a similar vein, david hume and georg wilhelm friedrich hegel were sceptical of the constitution of an international order. hume (1751, p. 4) argued that the “human nature cannot, by any means, subsist, without the association of individuals (…) but nations can subsist without intercourse.” likewise, hegel (2022, p. 252) insisted on the impossibility for states to build on a superior structure to which they could subject their will to. the german philosopher grounded its line of thought on the idea that subjectivity rests on the state. all in all, the understanding of hegel (2022, p. 258) and the aforementioned authors enables the state to displace god, “since the state is objective spirit, it is only though being a member of the state that the individual himself has objectivity, truth and ethical life.” 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 6 this brief doctrinal analysis evidences the emphasis that classical legal tradition placed on the state’s personality, rooted in its inherent self-governing character. states were the only subjects to which international law was applied leading to the concept of jus gentium being replaced by just inter gentes. as of the end of the 19th century, the narrow inter-state scheme conceived by positivist theorists granted states the authority to determine which rights were to be attributed to their nationals according to the state’s will (cançado trindade, 2013, p. 217). by assessing these states’ voluntas, the legal tradition denied the legal international personality of the individual on the ground of a lack of direct contact between individuals, as recipients of rights and duties, and international law (farinella, 2013, p. 195). despite the reluctance expressed by the dominant positivist theory, the emerging doctrine called into question the strict inter-state defective conception of international law, as the upcoming paragraphs will clarify. it was, therefore, not long before the individual freed himself/herself from the long-standing absolute control of the state. this emancipation of the individual from the will of the state implied a gradual recognition of the human being as a subject of international law and, thereupon, as a holder and enforcer of international rights and obligations (cançado trindade, 2013, p. 217). 2.2.2. fading paradigms: shortcomings of the traditional conception of the individual under international law with the interwar period witnessing a dramatic process of industrialisation and unfolding, with it, a social crisis, the shortcomings of positivisms were brought to light. as a response to this classical trend’s inability to meet modern society’s demands, an antipositivist movement arose among the european theorists. the industrial revolution posed challenges, such as the employment standards, that were not foreseen in the so-called jurists’ ‘sacred text’, the napoleonic civil code of 1804; this new reality pointed to the need of a more comprehensive corpus juris. up to the 19th century, every legal matter was presumed to be addressed by following a methodology grounded on the ‘école de l’exégèse’, which consisted in the strict application of the french civil code, without regard of the historical, moral or sociological perspectives (portmann, 2010, p. 147). this philosophical approach aligned with hans kelsen’s (2000, p. 1) ‘pure theory of law’, which advocated “freeing the science of law from alien elements” including political, moral or sociological aspects. on account of this positivist thinking, law (lex) should not be understood in direct correlation with justice (ius). since law and mortality are to be interpretated separately, ‘what it is’ must not be confused with what ‘ought to be’ (yang, 2012, p. 246). positivist scholars’ inability and reluctancy to adequately analyse the contemporary insights, gave rise to important criticisms levelled against the anachronic state-only outlook. george scelle (1932, p. 298) minimised the role of the state to a ‘vain task’ in the law-making process by arguing that these subjects’ duty is not to create law as such but rather to identify and express “pre-existing rules of objective law, which are thus translated into normative or constructive rules of positive law.” scelle reflected upon the non-scientific foundation of natural law and delved into the legal approach of ‘objective 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 7 law’, which opposed to the static character of natural law, is distinguished by its dynamism, and grounded on the changing needs of the society (thierry, 1990, pp. 197-199). as a result, despite both, objective and natural law, agree on their prevailing character over the state’s will, unlike naturalism, objectivism shifts the focus from god and other abstract concepts, including recta ratio and justice, to the evolving nature of the society. in this light, the dichotomy between natural and positive law was replaced with the dilemma between objective and positive law (tzevelekos and berkes, 2021, pp. 446-447). it is in this context that edward a. purcell, jr., (2014, p. 1481) joined to the growing chorus of critical voices and referred to the positivist conception as “nihilistic, antidemocratic, and ultimately totalitarian.” the purely state-centred philosophy of law, along with the strict attempts to pursue a logical and objective analysis of the legal order, perceived the state as the ‘universal reality’ on which the human freedom and subjectivity relied on (prewitt-davis, 2015, pp. 237-238). the positivist legal understanding led to a misconception of the state-individual relations under international law and called for an individualistic notion of the international personality, emphasising the status of the state as the primary and solo subject of international law (portmann, 2010, p. 129). opposite to what was upheld by the state-subjected line of though, jean spiropoulos (1928, p. 66) contended that in order to morph to the new reality, the state could not be understood as the maximum subject of international law, only compelled to its own voluntas. breaking with the conventional doctrine, the state needs to be assessed as a means for fulfilling the core aspirations and fundamental needs of individuals. a further line of critique against the omnipotence of the state was raised by the judicial power. this positivists’ failure to accommodate new realities, or simply acknowledge the advancements in the field, was evidenced in significant judgments (duran bächler, 1992, p. 68) such as the republica v. de longchamps (us supreme court, 1784). in this decision, the supreme court of the united states charged the defendant for threatening and assaulting the consul general of france to the united states of america. the domestic court (us supreme court, 1784, p. 114) ruled that “the person of a public minister is sacred and inviolable. whoever offers any violence to him, not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world.” from this reasoning becomes apparent that despite the positivist trend was still in full swing when the decision was ruled, the american court had little trouble recognising international subjectivity to individuals despite doctrinal reluctancies among the academia (janis, 1984, p. 64). at odds with the traditional conception, case law and legal theory seemed to be coming to understand already that the global community did not emerge from the interactions among states only. retrieving to scelle’s (1948, p. 18) work, the international community responds to the “interpenetration of peoples through international intercourse”. in other words, individuals’ bonds extend beyond national frontiers and governments are aimed to facilitate individuals to interact with one another both, at national and international levels (cassese, 1990, p. 211). accordingly, a progressively popular line of thought came to regard the individual as the real subject of international law (von bernstorff, 2010, p. 149). 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 8 3. from objects to subjects: the legal recognition of individuals under international law over the course of the 20th century, the international community embedded in a broad structural transformation and gradually left behind the features that had defined the classical legal order. the consolidation of the notion of subjective rights and the affirmation of the autonomy of the will marked the culmination of the individualistic trend in modern culture, a process that had already begun in the 16th and 17th centuries with the thought of suárez, grotius, doneau, althusius, hobbes, and locke (peces-barba martínez and dorado porras, 2001, p. 120). after the first world war, international law underwent a process of institutionalisation, socialisation and humanisation on an attempt to adapt to the new reality. juan antonio carrillo salcedo (2000, pp. 72-73) developed this threefold approach and noted first, the expanding leverage capacity of both, regional and international organisations; second, a growing complexity of social dynamics and, finally, the inclusion and participation of non-state actors as subjects of international law. in this regard, the international court of justice (icj) stated in the advisory opinion on reparation for injuries suffered in the service of the un (icj, 1949, p. 8) how “the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities which are not states.” from this quote becomes clear that the classical overlook of international law was founded on a highly criticised state-only approach. modern scholars interpret this traditional perception of law as anachronic, and despite agreeing on the primary and supreme role of the state and other subjects alike, these theorists advocate for a secondary group of international law subjects that includes international intergovernmental organisations, as well as specific public establishments (bull, 2005, pp. 123-124). still, as regards to individuals, this well-defined insight relevant to international organisations does not find equivalent application to human beings. the overarching tone of the academia seems to agree on endowing individuals with international rights and duties, due to their growing performance in today’s global community, nonetheless, this line of thought is not unanimous (nyssanbekova et al., 2016, p. 1462). 3.1. rising to the fore: reconceiving individual’s international legal personality as the 20th century went by, the state-only legal approach was proven to be naïve. sir john fischer williams (1939, p. 18) asserted, in this matter, that it was “obvious” that international relations transcended interactions between states. building on this selfevident premise, philip c. jessup (1956, p. 1) developed the term ‘transnational law’ to refer to “the law applicable to the complex interrelated world community which may be described as beginning with the individual and reaching on up to the so-called ‘family of nations’ or ‘society of states’.” besides states, jessup’s (1956, p. 1) understanding of ‘transnational law’ consisted of individuals, corporations, organisations of states, or other groups. on that account, the term encompasses every set of norms that rules on actions that go beyond national borders, that is, “both public and private international 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 9 law are included, as are other rules which do not wholly fit into such standard categories” (jessup, 1956, p. 2). in line with jessup and fischer’s view, the post-second world war era granted the status of subjects of international law to new actors such as international organisations and even belligerent communities. however, individuals remained excluded as their juridical personality was denied. such international subjectivity rested on the jus tratatum, the jus legationen and the locus standi capacity that states granted to emerging international actors by virtue of their will (rivero godoy, 2010, p. 37). in accordance with the terms set forth, states were argued to be able by agreement to “stipulate that international law shall apply ‘directly’ to individuals without the necessity for municipal implementation;” and, exceptionally, to acknowledge the individual as subject of international law (st. korowicz, 1956, p. 537). in effect, states, as sovereigns and representatives of nations’ interests rather than of individuals’, contribute to the setting of international norms and standards via treaties to which individuals are subjected (rivero godoy, 2010, p. 39). on the basis of this traditional legal picture, states are understood as subjects of international law whereas individuals are only recognised as objects (giorgetti, 2019, p. 1088). yet, the fact that individuals are, as a rule, object of international law does not necessarily deny that they are, at times, direct subjects of the global legal structure (orakhelashvili, 2001, p. 245). from the preceding, it can be concluded that “the individual is the final subject of all law”, hence, there is no well-founded reason whatsoever that justifies the exclusion of the individual from the subjectivity that would entitle him/her to pursue legal proceedings before international courts as a party (cançado trindade, 2006, p. 18). looking at these decades of change, hersch lauterpacht developed an individualistic conception of international law, and advocated the human being’s stance at the center of the legal global understanding, as holder of international rights and actor obliged by international duties. roland portmann (2010, p. 130) identified in lauterpacht’s work four main elements which are key to the proper understanding of the individualistic approach. first, international standards concurred on by states are in principle aimed at reinforcing individual’s well-being. therefore, the boundaries between states and individuals’ interests, as well as the distinction between the branches of public and private law, water down. on this matter, lauterpacht (1950, p. 4) stated the following: “to assert that duties prescribed by international law are binding upon the impersonal entity of states as distinguished from the individuals who compose them and who act on their behalf is to open the door wide for the acceptance, in relation to states, of standards of morality different from those applying among individuals. experience has shown that ‘different’ standards mean, in this connection, standards which are lower and less exacting”. second, individuals might not endow the state the defence of their interests, thereupon, they will pursue their participation in the international arena to guarantee their 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 10 welfare. in other words, if the individuals do not trust the state as guarantor of their rights, they will find the means to ensure them (portmann, 2010, p. 130). elaborating on this idea, jean spiropoulos (1928, pp. 50-51) was of the firm view that individuals should be capable of standing for their rights before international courts single-handed, i.e. without the wardship of the state. this author argued that individuals’ rights will remain insufficiently guarded unless a direct channel of complaint is provided to these non-state actors in an international level. third, since individuals are the ones performing states’ actions, not only states but individuals can also be held accountable when acting as a representative of the state (portmann, 2010, pp. 130-131). this conception of ‘direct obligation’ of international law and enforcement upon individual was also risen by lauterpacht’s professor, hans kelsen (2000, p. 75), who argued that since “there are norms of general international law by which the person against whom a sanction is to be directed is individually determined as the person who, by his own conduct, has violated international law. these norms establish international responsibility.” forth, the state is not an end in itself but rather the guarantor of individuals’ well-being, accordingly, nor the state neither individuals can meddle with a given set of fundamental rights (portmann, 2010, p. 131). in lauterpacht’s (2013, p. 48) words, as paradoxical as it may seem, “the individual in his capacity as an alien enjoys a larger measure of protection by international law than in his character as the citizen of his own state.” indeed, to date, the core of human rights and international crimes, as well as the effective protection of fundamental rights and freedoms in an international level, is enforceable with a firm independence from the will of the state (farinella, 2013, p. 188). in short, 20th century onwards, the westphalian framework underwent significant changes to respond to increasing social demands and opened the way up to other actors than traditional nations. relevant authors in the discipline placed into question the notion of the state as a ‘supreme ideal’ and called for a greater participation of the individual in international law-making. in light of this, the modern doctrine contributed to a paradigm shift, grounded on a weak boundary between international and domestic realms, and advocated for the direct nature of international rights, as well as duties and responsibilities, upon individuals. nevertheless, it is important to bear in mind that despite the significant progress made towards the recognition of the individual’s international subjectivity, human being’s legal personality remains rather limited in the global sphere (friedmann, 1964, p. 234). 3.2. breaking free from the bonds of the state from its classical state-centred conception to the increasing acceptance of individual legal subjectivity, different reflections have been brought forth by theorists to explain the evolution that the international legal scheme has undergone; considerations of which include the development of international law and its dynamic nature, the predominant character of international legal order upon national legal scheme, the direct stipulation of individual rights and obligations at an international level and a growing relevance of humanitarian values as well as principles (orakhelashvili, 2001, pp. 242-244). 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 11 given the above, it may be maintained that the individual has taken centre stage as a result of a social and historical evolution. fundamental rights and freedoms have eventually been placed in the core of the contemporary international legal scheme, by being granted jus cogens status. such a progress has urged the westphalian model to eventually acknowledge what it was clearly inevitable: individuals have been conferred the functional capabilities required to effectively report violations of international law outside the scope of national jurisdiction (farinella, 2013, p. 193). given this, there are those who could cast doubt on the term ‘international’ itself since global dynamics are not limited, to this day, to inter-state or inter-nation relations. mark weston janis (1984, pp. 74-75), however, suggests that “we continue using the word international but understand ‘nation’ to mean not only the national state but also the individuals who are the nationals of the state.” 3.2.1. international rights as a direct voice for the individual consistent with the traditional understanding that fitted the time, the icj, in line with the former permanent court of international justice (pcij), discussed in its constitution the capacity of individuals to appear in court as parties. the committee appointed by the league of nations to consider individuals’ legitimatio ad causam upheld that only states, as solo subjects of international law, were entitled to be a party in the icj legal proceedings. notwithstanding criticisms coming from the doctrine, this orthodox insight was expressed in article 34.1 of the statute of the icj (cançado trindade, 2007, pp. 283-284). framed within the analysed inter-state conception, the pcij’s advisory opinion in jurisdiction of the courts of danzig revolutionised the international legal scene, by recognising an exception to the general norm that rejects the individual’s status as subject of international law. after the first world war, the free city of danzig and poland reached an agreement on the administration of the danzig railways and signed the ‘definitive agreement regarding officials’ (endgültiges beamtenabkommen), which was aimed at regulating railway workers’ terms and conditions of employment. danzig railway officials who had passed from the service of the free city into polish service brought actions in relation to pecuniary claims on the basis of the beamtenabkommen. initially, the council of the league of nations ruled against the possibility of individuals grounding their claims on the beamtenabkommen (portmann, 2010, pp. 68-69). yet, after this decision was appealed by the free city of danzig, the council of the league of nations formulated an advisory opinion before the pcij (1928, pp. 17-18), which stated that “the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by the national courts.” from this quote the literature has inferred that international treaties can be directly applied to individuals, if the parties that concluded this agreement had the purpose to create rights as well as obligations for human beings. in this regard, it is important to note that this purpose cannot be deduced but rather clearly expressed in a ‘self-executing’ treaty, as it stands as an exception to an international norm and is directly applicable by municipal courts. the icj went a step further in the lagrand (germany v. united states of america) 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 12 case (2001) and contended that the rights of individuals emanate from every international treaty signed by states, and not only from the aforementioned ‘self-executing’ treaties or traditional human rights agreements. this judgment (2001, p. 515) dealt with lagrand brothers, two german nationals living in the united states that were sentenced to death without being previously informed of the rights conferred by the vienna convention on consular relations (un, 1963). to conclude, it is worth noting that the icj took a similar stance in the case concerning avena and other mexican nationals (mexico v. united states of america) (2004, p. 36). by recalling the lagrand case, the icj argued in the same direction and recognised that “article 36, paragraph 1 (of the vienna convention), creates individual rights (for the national concerned), which... may be invoked in this court by the national state or the detained person”. in both decisions, lagrand and avena, it was provided that the icj sought to go further the simple preservation of state’s national interests and aimed to safeguard individual rights (milano, 2004, p. 134). 3.2.2. legal imperatives of the individual under international law the recognition of the international subjectivity brings not only the direct application of international rights on individuals but also the imposition of international obligations as well as responsibilities. in the inter-war period, the treaty of versailles opened up the path for individual liability being directly drawn from international law. nevertheless, the stipulations foreseen in the peace treaty were not implemented if not through internal courts (parlett, 2011, p. 68). hence, despite provisions of the treaty enabled nationals of the allied and associated powers bringing cases against germany, it did not improve individual’s position within the international legal scheme (wallace et al., 2016, p. 96). the first international court acknowledging that individuals have obligations under international law was the tribunal in charge of holding accountable nazi officials: the international military tribunal (from now on imt) of nuremberg (kaczorowska, 2010, p. 209). at the expense of classical sovereignty, the imt (1947, p. 223) determined that “the very essence of the charter (of the imt), is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” judges sitting in this imt refused to grant individuals any attempt to take refuge in allegations regarding the state sovereignty. the nuremberg tribunal determined that the criteria to establish the ‘state of defence’ and, accordingly, justify the decisions adopted by national socialist party members were not met. by virtue of personal liability, nazi officials were found guilty of the planning, preparation, and execution of war of conquest. nazis’ programme being legal within national jurisdiction did not alter the fact that it was not lawful under a ‘higher law’, i.e. international law. in sum, the imt contended that those officials that were being held accountable were obligated not to organise and execute wars of conquest, regardless of the authorisation granted by german office-holders (king, jr., 1996, p. 135). as stated by the imt (1947, p. 223) “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 13 nuremberg trials set the groundwork for the constitution of subsequent international courts. during the 1990s, two ad hoc international tribunals were established by the un security council: in 1993 the international criminal tribunal for the former yugoslavia emerged in response to the crimes committed in the balkans war (unsc, 1993); a year later, the international tribunal for rwanda was created on a global effort to prosecute the acts of genocide occurred in rwanda (unsc, 1994). the establishment of these two ad hoc international tribunals laid the foundations and pointed to the need of creating an international criminal court (caianiello and illuminati, 2001, pp. 422-423). finally, in 1998 the international criminal court was established on an attempt, as per the rome statute (icc, 1998, preamble), “to put an end to impunity for the perpetrators of these (serious international) crimes and thus to contribute to the prevention of such crimes.” from all the aforesaid becomes clear that the traditional conception of international law experienced a significant evolution in the post-second world war era: the passive legal personhood of the individual was acknowledged and, with it, the possibility to hold individual heads of states accountable for the commission of international crimes on behalf of the state (tedesco, 2017, p. 218). such advancements in the field of the individual’s subjectivity was reinforced with the revaluation of the human nature and humanitarianism as general values. the international community reached a consensus with regards to democracy and human rights, and granted to the later a special status by acknowledging them as inherent to its holders and opposable to every sovereign nation, including the state of which the individual is national (carrillo salcedo, 2000, p. 74). certainly, individual’s legal personhood in the international realm responds to an inevitable development of the contemporary global scheme (cançado trindade, 2013, p. 218). individual’s emancipation from the state has been gradual, but is now irrevocable. as a matter of fact, the individual has been bestowed with juridical-procedural competences and is emerging as the ultimate subject of not only domestic law but of the international legal framework as well (cançado trindade, 2013, p. 306). on this matter, mcdougal and reisman (1965, p. 826) recall professor wolfgang friedmann’s words and uphold “that all law is a law made by human beings for human beings, and that the respect for the human being, as an individual rather than an object to be disposed of at will, is a foundation of all social, and therefore of legal, relations.” this final conscience and faith in the worth of the human being has enable the individual to free itself from a classical state dominating conception of international law. as evidence of this, human rights have come to be recognised as jus cogens norms under article 53 of the vienna convention on the law of treaties (bianchi, 2008, p. 491). such acknowledgment has facilitated individuals to attain their emancipation and to act as the driving force behind the creation, among others, of the commission of human rights in 1946. this international entity is responsible of enforcing individual rights as well as drafting and developing significant documents including the universal declaration of human rights (unga, 1948); the covenant on economic, social and cultural rights (unga, 1966a); as well as the covenant on civil and political rights (unga, 1966b). these legal commitments were central in the global endorsement of the individual as a recipient of international rights and contributed to establish the personhood of the human 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 14 being through customary law. upon full consideration, individuals are not anymore dependent on the ‘philanthropy’ of its own state to achieve justice (cassidy, 2004, p. 557). 4. human rights as driving forces behind the paradigm shift of the individual’s international subjectivity the increasing relevance and presence of human rights in the global scheme has compelled the international community to grant them a non-derogable nature and an imperative character as per the international corpus juris. on this account, the principle of human rights protection is today ratified as a constitutional maxim of international law. these features of the contemporary legal regime confirm an erosion of the mantle of sovereignty and establish limitations to states’ exercise of power. human rights are no longer understood as sole business of states. opposite, rights that inhere in every human being constitute a common interest of the global society as a whole (casanova and rodrigo, 2019, p. 472). leveraging such universal understanding of the protection of human rights, new international non-state actors have emerged very dispose to engage in the protection of these fundamental rights. in the course of this century, the international community has welcomed a great heterogeneity of actors that are called for a greater role in the international legal affairs in general, and the human rights regime in particular. these advancements made in the global commitment to the protection of fundamental rights, along with an increasing relevance of non-state actors’ legal assertion, provide a unique opportunity for the individual’s international legal subjectivity being fully and effectively acknowledged (díaz barrado, 2016, pp. 24-25). 4.1. redefining sovereignty in the age of human rights as discussed in the preceding sections, prior to 1945, international law was solely perceived as a set of rules aimed at governing purely inter-state relations. within this classical outlook only states were conceived as subjects of international law and it was not until the emergence of the league of nations in the post-first world war era, that the narrow understanding of international personality expanded to recognise international organisations as global subjects. yet, as regards the individuals, the human being remained, for a while longer, as a mere object subjected to the will of its national state, therefore, the international community was unable to intervene in the event that state abuses came to light (gómez isa, 2006, p. 20). quoting professor pradier-fodere, judge t. modibo ocran (2002, p. 11) built on the principle of sovereignty and stated that “the acts of inhumanity however condemnable they may be, as long as they did not affect nor threaten the right of other states, do not provide the latter with a basis for lawful intervention as no state can stand up in judgment of the conduct of others”. upon this traditional reflection, unless a state violates other powers’ rights, the international community is not legitimated to intervene in the infringements occurred within domestic jurisdiction. as human rights were gaining momentum, international jurists such as the aforementioned georges scelle criticised the shielding that the classic legal view was 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 15 endowing to governments when committing human rights violations by virtue of ‘state sovereignty’. thierry (1990, p. 202) brings forward scelle’s words stating that “one might say about states what aesop said about verbs: that they are the best and the worst of things. they are the best if it is admitted that hitherto man has found society governed by the state to be the most satisfactory milieu for the realisation of his genius. they are the worst if one thinks of the fearsome accumulation of individual crimes and collective blunders which have given birth by the deification of the state, leading to government actions escaping the check of law.” all this rhetoric revigorated with the end of the cold war, conflicts in somalia, bosnia-herzegovina, sudan and iraqi kurdistan pointed to the pressing need for a greater interference of the international community in domestic affairs. the gradual erosion of the principle of sovereignty resulted in an exception to the mantle of ‘non-interference’: humanitarian intervention (arnison, 1993, p. 200). the international community agreed to grant basic rights a fundamental status and, with it, legitimated other states to intervene in case of a breach of these rights was committed. in essence, humanitarian intervention implied a limitation to the absolute character of the national sovereignty (gómez isa, 2006, p. 20). drawing upon this logic, states are responsible of guaranteeing the welfare of its nationals, nevertheless, whether domestic authorities fail or refuse to protect their citizens, the international community assumes responsibility, employing diplomatic, humanitarian, and other measures to uphold the rights of civilians (un secretary general, 2005, p. 35). this amounts to saying that the individual is holder of rights that are usually exercised together with the state in the international realm, since this latter classical representative of the individual is not empowered but rather urged and obliged to provide such protection. that said, the state’s inability to guarantee the safeguarding of basic rights triggers the international liability of that state due to its omission to act (farinella, 2013, p. 182). this reality highlights that the international community is unwavering in its commitment to promoting and protecting human rights, acknowledging them as a matter of urgent and pressing concern (the world conference on human rights, 1993, section i. 4). states can be held into account for severe infringements of individual rights, since fundamental rights are not understood anymore as an unintended consequence of interstate dynamics, that can be either embraced or rejected by virtue of the will of each state. indeed, human rights are at the heart of contemporary global legal system and play a central role by providing guidance not only to states but also to international organisations (tomuschat, 2014, p. 3). building on human rights as structural foundations, the first general instrument adopted by the un general assembly was the aforementioned universal declaration of human rights on december 10, 1948. the declaration codified the respect for human rights and fundamental freedoms stipulated in article 1 of the un charter, and further explained in articles 55 and 56 of the very same charter. the relevance of this declaration lies, consequently, in the rights it grants individuals to hold the state accountable for its 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 16 actions, as well as in the status of active international legal personality that the conferral of these rights implies (cortés rodas, 2011, pp. 124-125). despite the alleged universal nature of the declaration, most of the still colonised asian and african countries were left out of the drafting of the declaration. moreover, on an attempt to reach greater consensus, this international commitment was adopted without a binding character. it cannot, however, be said that the global pledge has no value, opposite, it has a high moral and political weight, which has led into rules of customary international law (salvioli and quesada, 1994, p. 3). along with the universal declaration of human rights, other international agreements as well as conventions and declarations were adopted over the next years in order to develop the binding character of fundamental rights, including the prohibition of war of aggression and crimes of genocide, the protection of refugees and other minority groups and the creation of humanitarian international law. gradually, the state lost its classical ground and new actors emerged as legal subjects of international order. ever since, individuals and other non-state actors are legitimated to resort to mechanisms available outside the state as a means to assert their rights at an international level (cortés rodas, 2011, pp. 124-125). 4.2. the intersection of ngo action and the international self of the individual as detailed in preceding paragraphs, the global community is embracing a transition towards an intersubjective international law while gradually casting the state-centric legal order aside. this paradigm shift contributed to reformulate significant traditional concepts such as the international subjectivity. on this matter, fundamental rights and liberties played a critical role as they established the theoretical framework required for non-state actors exercising their active legitimacy as legal subjects (farinella, 2013, p. 197). previous sections have provided an overview of individuals’ increasing global presence and eventual recognition of their personality within international legal scene, yet little has been said about non-governmental organisations’ (hereinafter ngos) participation in such achievement. the acknowledgment of the individual as a subject of international law responds to a process of historical humanisation in which human rights constituted a crucial pillar of the global regime. concerning this, it is worth noting the significant impact that non-state actors in general, and ngos in particular, have had in the advocacy and implementation of fundamental rights via research, report and establishment of legal grounds. in philip alston and ryan goodman’s (2013, p. 1504) words “it is inconceivable that these state of human rights in the world, whatever its shortcomings, could have progressed as much since the second world war without the spur and inventiveness of ngos.” in the midst of what has been referred as a “global association revolution”, ngos are of rising importance in the international legal scene. these organisations’ presence has significantly increased in the last decades, thus, their growth as global players may seem rather recent; their emergence, nonetheless, dates back to the 19th century in a national level and to the 20th century in the international realm (szazi, 2012, p. 28). as the cold war was coming to an end, a human rights-centred governmental system emerged to power. during the 90s the legitimacy of repressive regimes in eastern europe and latin america eroded, 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 17 paving the way for a process of democratisation and opening a window of hope for human rights advocates. mindful of this major upheaval, ngos played a relevant role in efforts to urge new independent administrations to remain consistent with the international human rights corpus juris, and to rectify previous rights breaches (nelson and dorsey, 2008, p. 48). over time, ngos assumed greater competences and contributed to the international legal regime by incentivising treaties, driving new international organisation and lobbying to build up on international norms (charnovitz, 2006, p. 1). despite the undisputable relevance of ngos, there is broad consensus on the fact that these organisations are not subjects of public international law, but rather international actors. this latter legal category implies that, from a sociological perspective, non-profit organisations hold the status of key players in international relations; conversely, from a legal approach, no rights or obligations derive directly from international law for ngos (núñez peguero, 2012, pp. 327-330). such a lack of international personality should not lead to the downplay of these actors, since they greatly contribute to channel public concerns and tailor governmental policies (casanova and rodrigo, 2019, p. 271). in the absence of legal authority, it is safe to argue that ngos enjoy a moral authority grounded on the wilful and free commitment of individuals to the objective for which they are constituted. hence, these organisations legitimacy builds on the appealing nature of their propose and the values that govern their activity (charnovitz, 2006, p. 1). on account of the aforementioned moral authority, it could be maintained that ngos’ perform a fundamental function on the contemporary scheme, by stepping into domains that inter-state dynamics are unable or unwilling to address, on behalf of the civil society. this labour performed by ngos often leads to frictions between states and organisations. that said, as time went by, cooperation between the two international actors has resulted in very enriching outcomes for both parties, but specially for the civil society (clark, 1992, pp. 151-152). ngos have worked their way through a legal scheme greatly influenced by state reluctancies and have managed to secure an observer status in relevant international bodies along with states. these organisations work on meeting their purpose as watchdogs, getting to influence policy making procedures and supervising both, the use made of financial resources as well as the results obtained from the implementation of the decisions adopted. by allowing the participation of these independent organisations in the international course of action, the inter-state scheme is endowed with transparency and legitimacy. a further capacity of ngos is their work as ‘lobbyists’. besides their advancements in the upper spheres tailoring the global agenda, at a more immediate level, these non-profit entities pursue campaigns aimed at reinforcing participative democracy by shaping policies that belong, in the abstract, only to the state. in other words, these organisations offer to those private individuals that have, traditionally, been excluded from classical political processes the chance to join forces and put pressure on public administrations to achieve objectives that a human being alone cannot meet (lage and brant, 2008, pp. 80-81). an example that illustrates the remarkable results that have been obtained from the cooperation between states and ngos is the un convention on the rights of the child (unga, 1989). there are many good reasons to raise this child’s rights centred treaty, nevertheless, in the particular case of this article, the relevance of this 10.17561/tahrj.v25.9536 individuals in international law: a historical shift towards agency the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 18 legal instrument lies with the strong involvement of the ngos in the codification and adoption of the convention on the rights of the child, as well as the optional protocol on the involvement of children in armed conflicts (unga, 2001a); the optional protocol on the sale of children, child prostitution and child pornography (unga, 2001b); and the optional protocol on a communications procedure (unhrc, 2011). prior and throughout the negotiation and drafting of the convention on the rights of the child and its optional protocols, ngos were granted a consultative status (giorgi, 2019, p. 154). leveraging the role entrusted to ngos by states, the ad hoc group on the drafting of the convention on the rights of the child emerged. composed by a wide network of ngos, this group was responsible of discussing governments’ proposals as well as writing their own contributions. the involvement of these ngos, which to date carry on working via a network of alike organisations, constitutes a key precedent in the history of the un and serves to uphold the rights and interests of individuals, as acknowledged by the ohchr (2007, pp. 936-937). a further matter that is worth noticing in relation to both, the convention on the rights of the child and the main topic object of analysis in this article, individual’s subjectivity under international law, is the fact that article 5 of the aforementioned optional protocol on a communications procedure foresees the submission of individual communications, in case of a breach of the rights stipulated in the convention or any of the other three optional protocols occurs. this legal provision brings together the underlying idea that has been developed throughout the last paragraphs: ngos’ contribution to the advocacy and implementation of human rights places fundamental rights and, with it, the human being, at the centre of the international legal scheme, which has eventually translated in the conferral of the active legal legitimation to the individual under international law. along with the committee on the rights of the child, the international system has provided for other universal (pillay, 2012, p. 16) and regional (hansungule, 2009, p. 684) complaint mechanisms that allow individuals to bring claims against the state, upon exhaustion of domestic remedies and ratification of legal instruments that allow for such complaints mechanisms to take action. these legal procedures are undoubtedly important advances for individuals’ legitimatio ad causam. having said that, these are not without limitations and should not be perceived as a panacea (callejón, kemileva and kirchmeier, 2019, p. 31). they often come with high costs, complexity, and barriers for those lacking legal expertise. in this context, ngos step in to fill this void and ensure greater accessibility by spreading awareness, offering financial aid, and providing free legal assistance (unodc and undp, 2016, p. 49). 5. concluding thoughts on the individual as a legal subject under international law the 20th century provided a legacy of codification and expansion of human rights, catalysing the empowerment of the individual and its emancipation from the state as an international legal subject. upon a process of humanisation, the natural law long advocated by vitoria and grotious emerged once again, reclaiming its place, yet moving from a theological basis to one centered on international commitments. after the inadequacies 10.17561/tahrj.v25.9536 natale serón arizmendi the age of human rights journal, 25 (december 2025), e9536 issn: 2340-9592 doi: 10.17561/tahrj.v25.9536 19 of hobbes’ leviathan and kelsen’s pure theory of law revealed their inability to address the deeper truths of justice and human dignity, the jus inter gentes paradigm allowed the jus gentium doctrine to return. this gave rise to a conceptual change that redefined the state as primarily a mechanism for the realisation of individual needs and interests. from the preceding, it stands to reason that the individual has won recognition of legal rights and been granted the capacity to vindicate them at an international level. in point of fact, the global legal scheme has, eventually, acknowledged individuals the international subjectivity that were denied ever since the adoption of the westphalian treaty and the conception of the modern state. as the traditional authority of the state diminishes, the individual’s role as the central subject in international law has gained prominence, surpassing the sovereign entity and its territorial limits. indeed, along with globalisation, the individual’s concerns rise above national borders over the long-standing positivist perception of the state solo approach, to encompass other actors beyond the state. this relates to the fact that, although the term ‘transnational’ literally denotes a reality that relates the nation-state, it extends to include various other subjects that shape the dynamics and impact the global structure. in this context, the new corpus juris resulting from the endorsement of the individual’s centrality brings human rights to the forefront over state sovereignty and, in a bid to secure such a shift from raison d’éta to raison de l’humanité, a locus standi is granted to the individual. as a result of the foregoing and in light of the research inquiry raised by the article as to whether the individual has acquired subjectivity resulting in effective legal standing, it is possible to conclude that the answer is affirmative. individuals are today holders of rights and obligations and have been vested with the capacity to exercise and invoke them directly before several judicial and quasi-judicial bodies vis-a-vis the states of which they are nationals. that being said, it is worth noting that despite a comprehensive realignment of the classical doctrine, states remain predominant in the international scheme and the enforcement of international treaties, as well as judgments, is contingent, to a large extent, on the willingness of states to comply with such international commitments. accepting this limitation, while refraining from letting it define the path forward, it is important to recall and enhance the major and meaningful progress that the individual has accomplished in the past few decades. individuals, empowered by the support of ngos and civil-society networks, have steadily called into question a status quo that favours the state, asserting their autonomy and reclaiming their agency. earlier reflections on lawsuits litigated on topics such as technology and climate change highlight the 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individuals under international law 3.1. rising to the fore: reconceiving individual’s international legal personality 3.2. breaking free from the bonds of the state 3.2.1. international rights as a direct voice for the individual 3.2.2 legal imperatives of the individual under international law 4. human rights as driving forces behind the paradigm shift of the individual’s international subj 4.1. redefining sovereignty in the age of human rights 4.2. the intersection of ngo action and the international self of the individual 5. concluding thoughts on the individual as a legal subject under international law references well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 271 well-founded fear in international refugee law: a feminist approach cristina maría zamora gómez1 abstract: international refugee law, as a matter of human rights, is in continuous evolution. this article aims to capture what the main advances in gender human rights have been in the regime of well-founded fear of persecution that is entitled by the 1951 geneva convention on the status of refugees. thus, this article will expose what is the classic literature around the conceptualization of the well-founded fear of persecution, including what the iusfeminist critical doctrine has contributed. subsequently, it will be shown how to improve the evaluation process of the two elements that make up the well-founded fear of persecution, namely the subjective and objective elements. followed by a detail of the main stumbling blocks that such an evaluation has in terms of gender blindness. finally, this article will venture to make some legal proposals to overcome such gaps. keywords: refugees, well-founded fear, 1951 geneva convention, gender, asylum. summary: 1. introduction.2. conceptualization of well-founded fear of persecution: objective element vs. subjective element. 3. evaluation of the elements of well-founded fear. 4. disputes in the appreciation of the elements of well-founded fear. 5. conclusions. 1. introduction the well-founded fear of persecution constitutes one of the fundamental elements in the definition of a refugee in the 1951 geneva convention: “for the purposes of the present convention, the term “refugee” shall apply to any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country.”2 at the regional level of the european union, article 18 of the charter of fundamental rights of the eu includes, for the first time at the european level, the right to asylum. it is a qualified right: “the right to asylum shall be guaranteed with due respect for the rules of the geneva convention of 28 july 1951 and the protocol of 31 january 1967 relating to the status of refugees and in accordance with the treaty establishing the european community.”3 1 specialist lawyer at gender and asylum. visiting rechearcher at instituto universitario de investigación de género e igualdad (igiuma), spain (crismazago@gmail.com). 2 1951 geneva convention relating to the status of refugees, resolution 2198 (xxi) adopted by the united nations general assembly. 3 charter of fundamental rights of the european union, (2000/c 364/01). mailto:crismazago@gmail.com well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 272 article 19 of the charter prohibits the return of a person to a situation of justified fear of persecution or real risk of torture or inhuman or degrading treatment or punishment (principle of non-refoulement), as well as the prohibition of collective expulsions. the definition of a refugee, with an exact content than the geneva convention (gc), is given by the 2011 qualification directive in article 2, section (d).4 the right to asylum is closely related to the right to life and the prohibition of torture set forth in articles 2 and 3 of the european convention on human rights of the council of europe (echr)5. unanimously, scholars and courts defend that an interpretation based on human rights concludes that the acts of persecution that asylum seekers fear they will suffer are covered by the prohibition of torture in article 3 and the right to life in article 2, which, in addition, are absolute rights. for this reason, the jurisprudence of the european court of human rights (ecthr) is especially relevant in the development of international refugee law (irl) with a human rights approach. it is relevant for the purpose of this contribution to define some concepts related to it. for these definitions, the soft law instruments of human rights are used, specifically the yogyakarta principle6. and other irl instruments: unhcr handbook7, its guidelines, and the handbook on european law relating to asylum, borders, and immigration (european handbook)8. ● gender: refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination. gender is not static or innate but acquires socially and culturally constructed meaning over time. (unhcr, 2002 para 1) ● gender discrimination: differences in the treatment of various groups, less favourable treatment because of such differences on gender -gender violence; sexual orientation; gender identity. 4 directive 2011/95/eu of the european parliament and of the council of 13 december 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted 5 convention for the protection of human rights and fundamental freedoms, council of europe, rome, 4.xi.1950 6 the yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity were adopted in 2007 by a group of human rights experts and, although not binding, reflect well-established principles of international law. international commission of jurists (icj), yogyakarta principles principles on the application of international human rights law in relation to sexual orientation and gender identity, march 2007, available at: https://www.refworld.org/docid/48244e602.html [accessed 6 june 2022] 7 handbook on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, 2019. 8 handbook on european law relating to asylum, borders and immigration. edition 2020. https://www.refworld.org/docid/48244e602.html cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 273 ● gender violence: refers to harmful acts directed at an individual based on their gender. it is rooted in gender inequality, the abuse of power and harmful norms. (unhcr) ● gender-based persecution: used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. (unhcr, 2002, para 3) ● sexual orientation: “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender”. (yogyakarta principle, preamble). sexual orientation is a fundamental component of human identity. sexual orientation is, according to the jurisprudence of the court of justice of the european union, a component of human dignity (cjeu, a, b and c v. staatssecretaris van veiligheid in justitie, 20149) ● gender identity: “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms” (unhcr, 2022). in this sense, the term “diverse identities” is used. ● iusfeminist doctrine: scholarship that reviews and questions law from a gender perspective, which implies considering the explicit and implicit exclusion of women and diverse identities in law. this article defends that the premises of the feminist method are: situated knowledge (haraway, 1988); applied feminism (barlett, 1990; crenshaw, 1991; mackininnon, 1995; charlesworth and chinkin, 2000; among others) and the contributions of postcolonial feminism (razack, 1995; young, 2000; quijano, 2000; correa 2021; among other). the irl, as a matter of human right, is in continuous evolution. this article aims to capture what have been the main advances in the area of gender human rights in the regime of well-founded fear of persecution that is entitled to the 1951 geneva convention on the status of refugees. thus, in the first place, it will be exposed what are the classic literature around the conceptualization of the well-founded fear of persecution, including what the iusfeminist critical doctrine has contributed. subsequently, it will be shown how to improve the evaluation process of the two elements that make up the well-founded fear of persecution, namely -subjectiveand -objective-. followed by a detail of the main stumbling blocks that such evaluation has in terms of gender blindness. finally, this article will venture to make some legal proposals to overcome such gaps. there are recent studies on credibility to substantiate the claim of the applicants for reasons of gender: mainly those applications based on persecution for sexual orientation and gender identity, but they do not stop at the well-founded fear of persecution, but rather at the means of proof for the base the persecution and, within it, on credibility specifically (guitiérrez castillo, hersh; lukac & eriksson; milbank; laviolette; morgan; 9 cjeu, c-148/13 to c-150/13, a, b and c v. staatssecretaris van veiligheid en justitie [gc], 2 december 2014 well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 274 shevtsova; venturi; güler, inter alia) . this article takes a position that defends that the subjective element of well-founded fear of persecution acquires a special relevance in gender applications for gender reasons. the main reasons for this are: given the situation of global inequality that exists for women and diverse identities in numerous states, both in the legal sphere as in the factual; and because of how gender biases influence decision makers in destination states. 2. conceptualization of wellfounded fear of persecution: objective element vs. subjective element in the gc, the “well-founded fear” associated with certain situations of persecution has been conceived, since the post-war context of the second world war, as the central condition and the essential part in the definition of a refugee (clavijo, 2018). wellfounded fear, in its initial configuration, suffers from a moral and humanitarian dimension. international refugee law (irl) and, specifically, the gc try to activate commitments and responsibilities in terms of solidarity between states in the framework of asymmetric relations (carrillo, 2002). this well-founded fear is permeated with involuntariness in the condition of victim. the gc does not provide a definition of what “well-founded fear” means. this work is carried out by the unhcr through the soft law instrument of the handbook on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees (unhcr handbook). this handbook includes 13 unhcr guidelines that should be followed when determining claims for refugee protection. guideline number one deals with claims based on gender-based persecution10 and, for its part, guideline number nine deals with claims based on sexual orientation and/or gender identity11. these guidelines are presented as the standard to be followed and as a best practice. unhcr shows keys to interpret this term, and details that it is made up of a subjective element the fear of each applicant, their state of mind and an objective element, the qualifier “well-founded,” which requires that fear be based on an objective situation. unhcr relates these elements as follows: “since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgement on the situation prevailing in his country of origin.”12 10 un high commissioner for refugees (unhcr), guidelines on international protection no.1: gender-related persecution within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, hcr/gip/02/01, 7 may 2002. available online: https:// www.unhcr.org/3d58ddef4.pdf 11 un high commissioner for refugees (unhcr), guidelines on international protection no. 9: claims to refugee status based on sexual orientation and/or gender identity within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, hcr/ gip/12/09, 23 october 2012. available online: https://www.unhcr.org/509136ca9.pdf 12 un high commissioner for refugees (unhcr), 2019, handbook on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, geneva, february, para 37. available online: https://www.refworld.org.es/docid/5d9e13214.html. https://www.unhcr.org/3d58ddef4.pdf https://www.unhcr.org/3d58ddef4.pdf https://www.unhcr.org/509136ca9.pdf https://www.refworld.org.es/docid/5d9e13214.html cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 275 unhcr continues to define the link between the subjective and objective element of well-founded fear of persecution by saying the following: “to the element of fear – a state of mind and a subjective condition – is added the qualification ‘well-founded’”. this implies that it is not only the frame of mind of the person concerned that determines his/ her refugee status, but that this frame of mind must be supported by an objective situation. the term “well-founded fear” therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration. this is what is known as the inclusion test, which, as professor nuria arenas, from huelva university, points out, implies the consideration of the existence of a well-founded fear of persecution a state of mind based on an objective situation for any of the reasons included in article 1a (2) of the gc (2007, p 61). irl's scholarship is divided about the importance that should be given to the subjective element of well-founded fear when determining the recognition of refugee status. on the one hand, the most classical literature rejects the approach of the subjective element to determine the well-founded fear of persecution (hathaway and hicks, 2005). the main reason is namely that children may not be able to demonstrate fear. indeed, this could apply equally to anyone without the mental capacity to grasp their own circumstances. even, it might also apply to any person who does not have the information necessary to assess their own real “risk level” for persecution. its doctrinal position is to argue that anyone, by the mere fact that they are making a claim to refugee protection, is asserting that they do have a well-founded fear of persecution, whether subjective and/ or objective. in such a way that anyone who testifies that they fear returning to their country of nationality or habitual residence but is delusiónal about the reality of their own circumstances regardless of their mental capacity, age, or background, may have a “subjective fear,” but that is not “objectively well-founded.” on the other hand, the most recent literature problematizes around this subjective approach and proposes to overcome the obstacle of the manifestation of fear in children, considering an approach from the perspective of childhood. or, in those cases to anyone without the mental capacity to grasp their own circumstances, apply a mental health-based approach. this doctrine upholds giving different answers adapted to the specific situation of each asylum seeker, finding out which social inequalities mean the most to the applicant. (crepín, 2021; laviolette, 2013; millbank 2021). and it supposes, in practice, applying an intersectional feminist approach that defines what is the supreme oppression suffered by the applicant, if it is age -childhood-, gender, gender identity, sexual orientation, etc. a category that must support decision-making in relation to the subjective approach of well-founded fear of persecution. although, it is true that the consensus of irl scholarship is that the terms “real probability”, “reasonable probability” and “real risk” reflect a standard of proof. nuria arenas recalls that the evaluation of the claim in the framework of the asylum procedure does not seek to identify refugees with “absolute certainty but to establish the probability that they are.” (2007, p. 62) before going deeper into the matter, it is convenient to explicitly explain the relationship that exists in irl between the well-founded fear test, the standard of risk (likelihood of risk), credibility and the asylum process including the interview and testimony. well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 276 as set out in the michigan guidelines on well-founded fear, the well-founded fear test involves considering the forward-looking risk expectation of persecution: likelihood of risk13. for the examination of the likelihood of risk, the examiner of the state of destination will review all the material evidence at its disposal (unhcr, handbook para 195-204). the testimony of the applicant through the interviews constitutes proof in the same way as other documentary sources. at this point it is important to remember that the burden of proof on the facts that support the request falls on the applicant (unhcr, 1998 para 514). for the examination of the probability of risk of future persecution, the examiner must take into account the personal circumstances of the applicant and the situation of the country of origin. regarding the personal circumstances, unhcr recommends studying the applicant's background, personal experiences, personality, as well as other personal elements that could make him or her susceptible to persecution (unhcr, 1998, para 1819). if there are, among the applicant's statements, some aspects that cannot be proved, the standard of proof of the applicant's statement (the threshold that the applicant must reach to persuade the examiner about the veracity of their statements regarding the facts that occurred) will be the credibility (michigan guidelines, para. 7). the applicant's account will be credible if it is coherent and plausible, thus, if it does not present contradictions with facts of public knowledge in the state of origin (michigan guidelines, para 11). if there is any element of doubt in the applicant's testimony but, the examiner considers it credible, the principle of the benefit of the doubt will be applied, thus, this element of doubt will not be an obstacle to proving the well-founded fear of persecution (unhcr, 1998, para 11; handbook, para 203-204). if the testimony does not pass the credibility test, the examiner has the obligation to evaluate the probability of future risk based on other material evidence available (michigan guidelines, para 12). the most classical literature, led by professors hathaway and foster, provide a detailed analysis in relation to the concept of “well-founded fear of persecution,” agree that a well-founded fear involves two requirements: a subjective perception of risk and an objectively verifiable risk, based on the conditions of the situation in the state of origin, since the fear must have a rational basis and be reasonable (hathaway & foster, 2014, p.91-92). in contrast to the earlier position of unhcr and noll, they argue that the concept of “well-founded fear” is inherently objective. this is because in the absence of the objective element, refugee status is denied, while the subjective element does not have the same weight, since its presence does not guarantee the determination of refugee status. furthermore, they draw attention to the difficulty of evaluating a subjective perception of fear and argue that, because of this difficulty, a lack of credibility has been equated with an absence of the subjective element of fear. of course, through the analysis of jurisprudence, they show that it is wrong to think that those applicants who are not credible lack the subjective element of fear, since this premise implies affirming that those who do express fear do not lie or exaggerate their narration. 13 the program in refugee and asylum law university of michigan law school march 26-28, 2004 “the michigan guidelines on well-founded fear”. available: las directrices de michigan sobre el miedo bien fundado — the michigan journal of international law (mjilonline.org) 14 un high commissioner for refugees (unhcr), note on burden and standard of proof in refugee claims, 16 december 1998, available at: https://www.refworld.org/docid/3ae6b3338.html https://www.refworld.org/docid/3ae6b3338.html cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 277 unhcr lead the knowledge that assumes that well-founded fear has the effect of guiding decision-makers toward an assessment of the likelihood that a person will be persecuted for one or more of the five gc reasons upon returning to their country of origin or habitual residence (scott, 2018, p. 50). gregor noll’s human rights-based approach articulates a persuasive path by understanding the term “fear” as an invitation to consider the perspective of the applicant: “what, then, could be the meaning of fear? in our understanding, the occurrences of the term fear, as well as the explicit link between fear and unwillingness, suggest that the determination of refugee status under article 1a (2) of the gc implies the applicant's own assessment of their situation upon returning to their country” (2005, p. 154). in other words, fear is translated into a standard of procedure (michigan guidelines, para. 6). this position followed by noll means that after having listened to the complainant and having considered their own reasons why they cannot or do not want to return due to the fear of being persecuted for a convention ground, the person responsible for making decisions generally will need to seek information beyond the statements of the plaintiff -the objective element. however, the consideration of additional information should not be seen as a purely “objective” exercise in contrast to the “subjective” fear of the applicant, since, if so, as professor noll advises: “the total subjugation of fear to reason disenfranchises the refugee, while framing the northern adjudicator as a gnostic agent, capable of better understanding reality in the south or the east through its northern institutions.” (2005, p. 156). this article goes a step further in the persuasive positioning of the subjective approach proposed by the michigan guidelines and followed by noll. this article provides a feminist analysis of the subjective approach to well-founded fear of persecution, firstly, applying haraway's theory of situated knowledge to address fear and, secondly, using postcolonial feminisms to remove the concept of fear from the knowledge of the global north (haraway, 1988, p.575). in this last sense, chimni and tuitt critique the well-founded fear concept on the grounds that western decision-makers prioritise their subjective analysis of risk over the asylum-seeker’s lived experience (tuitt, 1966 and chimni, 1998). this article argues that the subjective element of well-founded fear of persecution acquires a special relevance in the face of refugee applications based on gender. the explanation for this is that these requests are affected by gender discrimination as a social basis. and this gender discrimination is decisive in the state of mind and a subjective condition of the refugees. it is relevant to emphasise the relationship between the assessment of wellfounded fear of being persecuted, including its objective and subjective elements, and the assessment of credibility of the refugee's account of past events and future risk of persecution which concerns the refugee determination procedure (arenas & murillo, 2015, pp.59). the unhcr defends that the appreciation of the subjective element requires the well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 278 evaluation of the statement of the person requesting protection. this same evaluation is the one that serves as a starting point for the degree of credibility of the request in the face of a certain situation of persecution of which she has been a victim or there is a reasonable risk that she will be (bertomeu 2021, pp.80). furthermore, in gender-related refugee claims, credibility is a key element. in cases of persecution through gender violence because the agents of persecution are usually private. this means that decision makers do not evaluate the risk situation as constituting persecution. and, the same holds true in cases of gender discrimination, due to western patterns and sexist prejudices when assessing the credibility of lgtbiq+ people. 3. evaluation of the elements of well-founded fear for the evaluation of the subjective element, as indicated by unhcr, the personality of the applicant must be considered, the psychological reactions of each person are not necessarily the same in the same situations15. no express reference is made to the need to take into account the sex of the applicant, but from reading the procedural handbook the requirement could be assumed. in the first place, due to the general requirement of the principle of interpretation of the gc “in the light of the times”. and, secondly, for the unhcr contribution to knowledge on gender that it develops through its guidelines16. qualification directive, in article 4 refers to the assessment of the facts and circumstances for the evaluation of applications for international protection17. article 4.3. (c) establishes that when evaluating the facts that may constitute persecution or serious harm, the particular situation and personal circumstances will be taken into account, including factors such as background, gender and age. unhcr mentions the need to carry out an “assessment of the degree of credibility” in those cases in which some aspects of the applicant's statements cannot be proven in light of the facts in the file. this credibility assessment involves seeing the coherence and plausible claim of the applicant’s statements(unhcr, 1998, parra.11). professor robert thomas, from manchester university, defines credibility as “the core of the asylum process” (thomas, 2006, pp.79). 15 unhcr, op.cit., 2021, para. 40, exemplifies: “one person may harbor political or religious convictions so deeply rooted that having to do without them makes his life intolerable, while another may not have such firm convictions. one person may impulsively make the decision to escape, while another may carefully plan her departure.” 16 un high commissioner for refugees (unhcr), unhcr guidance note on refugee claims relating to sexual orientation and gender identity, 21 november 2008, available at: https://www.refworld.org/ docid/48abd5660.html 17 directive 2011/95 / eu of the parliament and of the council of december 13, 2011, establishing rules relating to the requirements for the recognition of third-country nationals or stateless persons as beneficiaries of international protection, to a uniform status for refugees or for people with the right to subsidiary protection and the content of the protection granted (recast) doue december 20, 2011; l 337/9. (“qualification directive”) available in its online version: https://eur-lex.europa.eu/lexuriserv/ lexuriserv.do?uri=oj:l:2011:337:0009:0026:es:pdf, consulted on june 02, 2021. https://www.refworld.org/docid/48abd5660.html https://www.refworld.org/docid/48abd5660.html https://eur-lex.europa.eu/lexuriserv/lexuriserv.do?uri=oj:l:2011:337:0009:0026:es:pdf https://eur-lex.europa.eu/lexuriserv/lexuriserv.do?uri=oj:l:2011:337:0009:0026:es:pdf cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 279 the qualification directive provides that the elements to substantiate the application that asylum seekers must submit, depending on whether the state considers it mandatory, are: “the applicant's statements and all the documentation available to him regarding his age, past, including that of related relatives, identity, nationality(s) and places of previous residence, previous asylum applications, travel itineraries, travel documents and reasons for requesting international protection.”18 as professor zulima sánchez from the university of salamanca mentions, with the 2011 qualification directive, an obligation of cooperation of asylum seekers with the authorities of the host country is extended by providing the data required by the application (sánchez, 2018). the third section of the same article 4 gives a battery of elements that must be seen in the process of evaluating the application for international protection. the fourth section sets out a presumption of well-founded fear, in those cases in which the applicant has already suffered persecution, serious damage or has received threats. and this valuation article is complemented with a confirmation waiver clause in those statements where the applicant has declared aspects that are not supported by documentary or other evidence (benefit of the doubt). in this case, they will not require confirmation as long as there are a series of circumstances, which in summary imply due diligence on the part of the applicant. related to this, unhcr adds that in those cases in which it is necessary to verify some of the statements of the applicant's statement, “it is usually necessary to grant the applicant the benefit of the doubt.” (unhcr, handbook para.203-204). it is important to relate this article 4, especially its reference in the first section that mentions that the burden of assessing the elements of the claim is the responsibility of the states, with the collaboration of the applicants in harmony with the general principles of unhcr that establishes that the burden of proof falls on whoever asserts regarding the probability of being refugees. both unhcr and the literature are unanimous in affirming that refugee status determination does not seek to identify refugees with absolute certainty, but to establish the probability that they are. in this sense, the likelihood of risk comes into play, because not all levels of probability of being persecuted are sufficient to give rise to refugee status. this element -likelihood of riskis related to the well-founded fear insofar as: “an essential element to take into account is whether the applicant has been able to demonstrate the existence of this fear based on the degree of probability that must exist to be entitled to recognition of refugee status” (unhcr, handbook, para.205). the irl literature understands that the assessment of credibility (coherence and plausible claim) is extraordinarily subjective. this fact entails the enormous risk that the examining authority assesses the claim with its own biases. thus, the following are key factors in the evaluation of gender demands: prejudices and gender stereotypes of the authority, the distance between the reality of the applicant and the competent authority. as professor arenas warns, the institution in charge of verifying said credibility in those cases in which there is no evidence of persecution, retains broad powers of appreciation (arenas, 2007, p. 59). in this sense, the judgment of the immigration appeals court of the united kingdom, in its judgment “sw (adjudicator's questions) somalia [2005] ukiat 18 ibídem, article 4.2. well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 280 00037” established that: “[…] findings of credibility are one of the primary functions of the (asylum decision-maker) since they lead to the establishment of much of the factual matrix for the determination of the case. in some cases, but by no means all, the issue of credibility may be the fulcrum of the decision as to whether the claim succeeds or fails”19. regarding the evaluation of the objective element -founded-, this requires that the examiner study the statements of the applicant in relation to the examination of the context of the situation of the country of origin, as provided in article 4.3. a) of the rating directive and in the unhcr handbook. the fear, as indicated by the unhcr, will be founded if it can be established to a "reasonable degree" that the stay (or return) of the applicant in the country of origin is "intolerable" (unhcr, 1998, para.16). that is, “unbearable” for the person. to exemplify the meaning "intolerable", it is worth recalling the emblematic judgment of the immigration and refugee board of canada, which in december 1997 recognized the status of refugee inter alia for a guinean applicant who had undergone female genital mutilation on the grounds that her return to guinea would be “insufferable” due to the atrocity of the persecution suffered and the psychological trauma that a return to the society of origin could cause: “with regard to the eldest daughter who had already been forcefully subjected to this practice in her country, the panel ruled that, given the gulf between the claimant's social values and those of the more restrictive fulani society, the atrocity of the persecution suffered and the psychological trauma she would suffer by returning to such a society and having to relive morally shocking situations.”20 the degree of reasonableness means that persecution is reasonably possible, that is, that there is a probability of risk of future persecution likelihood of risk. therefore, the context will be an important element to assess the probability of risk required by the subjective element (fear) to be founded (objective element). in this sense, the judicial decision of the united kingdom that analyses the objective element is emblematic r. v. secretary of state for the home department ex parte sivakumaran, (1988) 1 all er 193 (hl). in this decision, the applicants, six tamils who were sri lankan citizens, applied for asylum in the uk. the secretary of state rejected the applications on the basis that, according to the facts available to him, the applicants had no reason to fear persecution if returned to sri lanka. on appeal, the court of appeal overturned the secretary of state's decisions on the grounds that he had misunderstood the term “well-founded fear” because a person seeking refugee status simply had to show that he feared persecution. the secretary of state appealed. the house of lords admitted the appeal. this article highlights one of justice lord goff of chieveley's reasonings “that the requirement that the applicant's fear must be well founded means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a convention reason indeed, i understand the submission of counsel for the secretary of state, that there must be a real and substantial risk of persecution, to be consistent with that interpretation.”21 19 sw v. secretary of state for the home department (adjudicator’s questions) somalia (2005), ukiat00037, pár.20. available: https://tribunalsdecisions.service.gov.uk/utiac/38165. 20 crdd a96-00453 et al, immigration and refugee board of canada, december 8, 1997. canada: immigration and refugee board of canada, compendium of decisions: guideline 4 women refugee claimants fearing gender-related persecution (update), february 2003, available at: https://www. refworld.org/docid/4713831e2.html. 21 r. v. secretary of state for the home department ex parte sivakumaran, (1988) 1 all er 193 (hl). pár.30 https://tribunalsdecisions.service.gov.uk/utiac/38165 https://www.refworld.org/docid/4713831e2.html https://www.refworld.org/docid/4713831e2.html cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 281 within this context, examinations to assess the objective element of well-founded fear, the eu procedures directive relates the assessment of the objective element of fear (founded) based on the concepts of countries insurance of origin, safe third country and european safe third country (articles 37, 38 and 39)22 (see wood, 2012, 20; haines, 2010, 367). in this contextual examination, the authorities of the host countries are obliged to examine not only the legislation of the state of origin, but also to evaluate its effective application. for the objective that this article occupies, it is relevant to point out that, we defend that a state will be qualified as "safe", it will not only be necessary for it to have protectionist legislation for gender rights, but also that, de facto, these rights are fulfilled in the territory of the state of origin so that the state complies with its duty of due diligence. they will be "gender rights", the abolition of gender violence, freedom of sexual orientation and gender identity, which in practice means that: women live a life free of gender violence, that people with diverse sexual orientation are not discriminated against and that diverse gender identity is protected articles 2 and 3 of the echr: right to life and prohibition of torture. in short, that there is no discrimination based on gender. in terms of due diligence, the minimum observance that the state of origin must meet to be qualified as "safe", the echr issued an emblematic ruling in the case of muminov v. russia and provides that: “the court reiterates, however, that the existence of domestic laws and adherence to international treaties that guarantee respect for fundamental rights in principle are not sufficient by themselves to guarantee adequate protection against the risk of mistreatment when, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities that are manifestly contrary to the principles of the convention.” 23 therefore, this article defends that for the examination of context and the qualification of a state as a "safe" origin, the due diligence of the state is not only covered by the existence of laws against gender discrimination, but also when de facto such discrimination does not occur. in reference to the information on the safe third country in the examination of the context, article 10.3.b) of the procedures directive establishes that the states shall ensure that accurate and updated information is obtained from various sources about the countries of origin and transit. the directive mentions, as examples of sources: easo, unhcr and international organizations for the defence of human rights. safe countries will be safe as long as they meet the requirements set out in annex i of the procedural directive. in this article we propose a feminist reading of the provisions of the annex that necessarily leads to the conclusions: gender violence and severe gender discrimination are forms of persecution in the sense of article 9 of the qualification directive. does 22 directive 2013/32 / eu of the european parliament and of the council, of june 26, 2013, on common procedures for granting or withdrawing international protection, in its recital 32 that examination procedures, to comply with and guarantee equality substantive between applicants of both sex, must take into account the gender factor. thus, personal interviews should be carried out in such a way that it is as easy as possible for applicants of both sexes to talk about their experiences, especially in those cases in which they have been victims of persecution based on gender reasons. it is also clarified in this recital that the complexities of these requests related to the gender factor must be taken into account in procedures based on the concept of a safe third country, the concept of a safe country of origin or the notion of subsequent requests. available in: https://eur-lex.europa.eu/legal-content/es/txt/?uri=celex%3a32013l0032 23 echr case of muminov v. russia (application no. 42502/06), pár. 96 https://eur-lex.europa.eu/legal-content/es/txt/?uri=celex%3a32013l0032 well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 282 this work: in addition, the level of observance that states are required to comply with will go through due diligence: regulations of the country and the manner in which they are applied requires de facto there is no gender discrimination. in addition, this article proposes to abolish the concept of safe countries "for men" and "for women", a country where there is systemic gender violence can never be qualified as "safe". 4. disputes in the appreciation of the elements of well-founded fear the profound difficulty in evaluating the subjective element -fearis commonly shared by the irl literature. in this sense, professors hathaway and hicks, in relation to the subjective element test, denounce that the investigation tools that are available to the interviewing staff are crude in the sense of being non-specific. this subjective element of the well-founded fear test is problematic for those who investigate the analysis of a person's emotional state, even in the best of circumstances, so that in the context of refugee law, it worsens (hathaway & hicks, 2005, 517). for her part, professor arenas admits that there are real difficulties in obtaining evidence for this subjective element. she therefore admits that it is more of a system based on "prediction and the need to persuade", to convince the person in charge of the refugee status determination (arenas, 2007, p.62). when evaluating this subjective element of well-founded fear, another factor that according to hathaway and hicks complicates the investigation is the cultural diversity of each applicant and their way of expressing fear (2005, pp.518). there will be as many ways of expressing fears as there are applicants, and this will depend, among others, on cultural, origin, and educational factors, and, for greater complexity, on the personality of each person. this scholarly position is endorsed by psychology. in psychology, fear is related to the conceptualization of "trauma." for the researcher levine, finding a definition of trauma is a difficult task, however it gives a guideline saying that there is a trauma when the human ability to respond to a perceived threat is restricted in some sense. this inability to respond adequately can impact the person in obvious ways, but also in more subtle ways. the psychological literature about trauma shares the concept of a "non-unique experience of trauma." levine suggests that, “when talking about trauma, no two people are exactly the same. what proves to be harmful in the long run for one person can be exciting for another" (levine,2014, pp. 17-22). there are many factors involved in the wide range of responses to the threat. said responses depend on the genetic makeup of the individuals, on the history of trauma that they suffered, and even on their family dynamics. also, in the same sense, it is worth highlighting the important research of dr. hays, who has developed the "addressing model". this formula is a framework that facilitates the recognition and understanding of the complexities of individual identity in the field of psychology. according to hays, “[…] consideration of age, developmental disabilities, acquired disabilities, religion, ethnicity, sexual orientation, socioeconomic status, indigenous group membership, nationality, and gender contributes to a complete understanding of cultural identity. each factor can help researchers understand underrepresented groups and oppressive forces, which encourages diversity in psychology of the observer.” (hays, 2016). professor forough ramezankhah reports how in recent years, the disciplines of psychology and psychiatry have also contributed to the explanations and justifications for cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 283 the cover-up, in the sense of non-intentional obfuscation of information, non-disclosure, discrepancies and inconsistencies in the accounts of asylum seekers, which in law can lead to adverse credibility findings and be detrimental to the success of asylum applications. the psychological perspective defends the importance of understanding the emotions involved in the asylum application process and suggests that many signs of inconsistencies within an application can be justified by identifying the trauma and its potentially negative impact on memory (ramezankhah 2017, p. 212). this doctrinal position of taking into account the psychological perspective in the recognition of well-founded fear is fundamental in those cases of persecution based on gender. proof of this is the judgment of the cjeu in the case a, b and c 24, in which the cjeu had the opportunity to rule on the interpretation of article 4.3 of the qualification directive which, as this article has commented previously, provides that in the interview with the person requesting protection his personal and general circumstances must be considered. the dutch court submitted a preliminary ruling to find out whether article 4 of the qualification directive, in the light of the provisions of the european charter of human rights, should be interpreted as imposing certain limits on the competent national authorities when appreciating the facts and circumstances regarding the declared sexual orientation of a person requesting asylum, whose request is based on a fear of being persecuted because of said orientation (para.48). in this case, the applicant had not alluded to his homosexual sexual orientation on the first occasion on which he was offered to state the reasons for the persecution (para. 59). the cjeu replied: “considering that the questions relating to a person's personal sphere, and in particular their sexuality, are sensitive, it cannot be concluded that said person lacks credibility for the mere fact that, due to his reluctance to reveal intimate aspects of his life, he has not declared his homosexuality from the outset.” (para. 69). therefore, considering that an application is not credible because the applicant did not allude to his sexual orientation in the first opportunity he had to do so, constitutes a breach of, among others, the qualification directive (parr. 70-71). the critical positioning of hathaway and hicks reaches the point of considering themselves contrary to the evaluation of the subjective element. for professors hathaway and hicks, denying protection to people at risk who, for whatever reason, are not subjectively fearful, is completely illogical. such a lack of logic is exposed by the fact that, in general, it is difficult for the interviewing staff to determine in a formal hearing process whether or not an applicant is really afraid (hathaway & hicks, 2005, p.517). for hathaway and hicks, this illogic is revealed when an effort is made to evaluate subjective fear based on the external behaviour of the applicant and the content of his testimony. the final decision regarding the determination of whether the asylum seeker has succeeded in establishing the “well-founded fear of persecution” is made by the examiner based on the evaluation of the application submitted by the applicant (unhcr, 1998, para. 20). the international 24 tjue, as. c-148/13 a c-150/12, de 2 de diciembre de 2014, ecli:eu:c:2014:2406 (“a,b,c”). available from: https://curia.europa.eu/juris/document/document.jsf?text=a%252c%2bb%2band%2bc&docid= 160244&pageindex=0&doclang=es&mode=lst&dir=&occ=first&part=1&cid=9101149#ctx1 https://curia.europa.eu/juris/document/document.jsf?text=a%252c%2bb%2band%2bc&docid=160244&pageindex=0&doclang=es&mode=lst&dir=&occ=first&part=1&cid=9101149#ctx1 https://curia.europa.eu/juris/document/document.jsf?text=a%252c%2bb%2band%2bc&docid=160244&pageindex=0&doclang=es&mode=lst&dir=&occ=first&part=1&cid=9101149#ctx1 well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 284 commission of jurists considers that, when it can be objectively demonstrated that there is a real risk of persecution upon return, it would be incompatible with the humanitarian purpose of the gc to reject an application on the basis that the applicant has refused to express his subjective fear, or because he did not subjectively apprehend fear. but this is not the only criticism in the evaluation of the subjective element by the doctrine. there is also the risk of posing a biased view from the western point of view. as was already mentioned, professor arenas denounces the liberal and eurocentric paradigm in which the concept of a refugee emerges from the gc (arenas hidalgo, 2007, 77). this question acquires special relevance in relation to the diversity that was previously mentioned by hathaway and hicks, since this paradigm may also be dragged into the evaluation phase of the elements of well-founded fear. for hathaway and hicks, the test of the two elementary levels (1) a subjective fear (2) that is objectively justified to satisfy the criterion of "well-founded fear" of the refugee definition, if strictly followed, would lead to absurdity. thus, where the fear of persecution is founded from an objective point of view, a claim may nevertheless be dismissed on the basis that25: a) the person requesting fear does not apprehend the fear subjectively (or lacks the subjective element of fear), for example, when it has not been referred to; or b) potentially disqualify children or others who lack the intellectual means to apprehend or articulate their fear, or who may not otherwise be aware or unable to express it (hays, 2016). so, as it sees, there remains a degree of uncertainty about the role of a person's subjective fear in the assessment. on one hand, unhcr handbook (para.37-50) and some main judgments consider the subjective element important (see the judge's statement stevens j in ins v. cardoza – fonseca) while, on the other hand, the main judgments and more comments from the academy of legal literature see little or no room for the consideration of subjectivity in what is essentially objective: the evaluation of the conditions in the country of origin of the applicant (hathaway & foster, 2005, p.505). although this article highlights the usefulness of this mainstreaming positioning, it does not consider it appropriate. this article recognizes that the main position of the irl literature of not taking into account the subjective element of the well-founded fear of persecution is a practical way to avoid biases and the risk that the authorities of the country of destination devalue the evidence of the real value of the actual risk. and, also, a way to overcome the practical risks inherent in objectively evaluating sentiments (hathaway, hicks, the michigan guidelines, unhcr). however, this article argues that this is also an "easy" and unlawful way of overcoming these biases and that the correct way would be to adequately train interviewers to apply an intersectional approach in their examinations. it is necessary to name another risk in terms of bias in the evaluative gaze: the male paradigm. professor adjin-tettey, from university of vitoria, argues that, in evaluations of the subjective element, women are particularly disadvantaged. in those cases, in which the applicant has suffered persecution through sexual violence, in the presentation of her testimony it is possible that she does not communicate her subjective fear of persecution. 25 international commission of jurists (icj), refugee status claims based on sexual orientation and gender identity a practitioners' guide, february 2016, available at: https://www.refworld.org/docid/56cabb7d4. html, consultado el 14 de enero de 2021. https://www.refworld.org/docid/56cabb7d4.html https://www.refworld.org/docid/56cabb7d4.html cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 285 adjin-tettey highlights the complexity and difficulty of exposition for the applicant in those cases in which the interviewing staff is male (1997-1998, pp.13). this is a classic criticism of the iusfeminist doctrine of the procedure for examining the application for protection through refuge. the european regional asylum system has tried to overcome it, at least at the normative level. thus, the procedures directive recommends that interviews “should be organized in such a way that it is possible for applicants of both sexes to discuss their past experiences in cases of gender-based persecution.” this makes it possible that in the example reported by professor adjin-tettey, the applicant is interviewed by a woman (procedure directive, preamble num.32). complementing the gender focus of the interview, the procedure directive adds in its article 15 regarding the requirements of the personal interview that: “the member states shall adopt the appropriate measures to guarantee that the personal interviews take place in conditions that allow applicants to present the reasons for your requests in full. to this end, member states: a) ensure that the person who conducts the interview is competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability;” (procedures directive). as a reinforcement of the interview phase, the procedures directive complements this way of organizing interviews in article 10.3 section d), which provides that: “decisions are issued after a proper examination. to this end, the member states shall ensure: that the personnel who examine applications and make decisions have the possibility of obtaining, if necessary, the advice of experts in particular fields, such as medical, cultural, religious, minor’s issues or gender.” (procedures directive) related to this question, it is important to look at article 10 of the qualification directive. paragraph 2 establishes that the assessment of whether an applicant has wellfounded fears of being persecuted will be indifferent to the fact that he possesses the racial, religious, national, social, or political characteristic that gives rise to the prosecution action, provided that the agent of persecution attributes such characteristic to the applicant. in fact, a common practice of resistance of those applicants for "gender persecution" is concealment in the interview phase, especially in those cases of applications based on sexual orientation or gender identity. this article argues that a gender-sensitive evaluation of the interview may lead to the conclusion that the cover-up itself is a probative basis for the fear of persecution in these cases. if, out of fear of being persecuted, the applicants are not willing to return to their country of origin and, if they returned, they would avoid persecution by hiding their sexual orientation or gender identity, then their fear would continue to exist. briefly, it is relevant to ask what requirement does the directive transfer to the national level? delving into the spanish normative level, the asylum law provides that well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 286 in the asylum interview, when necessary, a “differentiated treatment based on sex”26 is required. it also says that the specific situations of people in vulnerable situations will be taken into account, including, among them, “pregnant women and people who have suffered torture, rape or other serious forms of psychological or physical or sexual violence and victims of human trafficking" (ley de asilo, 2009). on a practical level, the advocacy guide on international protection recalls that psychological or psychiatric reports and the application of the istanbul protocol27 for cases of survivors of ill-treatment or torture, are valid tools that can be used as proof of the subjective element (torres, a.m., alarcón, n. y bárcena, p., 2017). despite these efforts, the procedures directive does not resolve the delicate situation of those demands for protection through refugee with an important gender element because the directive does not mandate or even encourage that the interview is conducted by a person of the same sex as the applicant, but rather merely encourages the procedure to be attentive to the preferences of applicants (gender related asylum claims, 2012, pp. 93-95). for example, those cases in which gender-based persecution is related to the gender identity and/or sexual orientation of the applicant. in these cases, when applying the procedures directive, what does it mean that the examination of the application has the advice of gender experts? and/or what credentials assume that the interviewing personnel are competent to consider the sexual orientation, or gender identity of the applicant? this article argues that the gender perspective proposed by the procedure directive is incomplete, since the fact that the interview is conducted by a person of the same sex as the applicant does not guarantee a gender-sensitive examination of the application. to overcome this obstacle, it is necessary for the interviewing staff to have specific training in the gender perspective applied to interviews and as mentioned above, an intersectional perspective factors as their age, stage of physical development, current relationships, socio-economic status or background and so forth. the proposal tries to grant the claimant the right to request a refugee law decision-maker with the same sexual orientation or/and gender identity. in addition, this article proposes as lege ferenda that, in any case, the sex of the applicant referred to in the directive and that must be considered for this phase of the interview must be the self-identified sex and not the externally attributed one. thus, in cases of persecution of trans people, it would be guaranteed that trans women are cared for by professionals of the same sex. the ultimate objective of this proposal is to guarantee the applicant the nicest possible environment conducive to expressing their life experience. 26 ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria. boe núm. 263, de 31/10/2009, artículo 17. presentation of the application. 5. the administration will adopt the necessary measures so that, when necessary, a differentiated treatment is provided in the interview based on the sex of the applicant or other circumstances provided for in article 46 of this law. this procedure will be duly recorded. in the administrative file. available in its online version:https://www.boe.es/buscar/act. php?id=boe-a-2009-17242 27 ohchr, istanbul protocol handbook for the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment. new york and geneva, 2001. available in its online version: https://codigodh.org/wp-content/uploads/2014/10/protocolo-de-estambul.pdf. https://www.boe.es/buscar/act.php?id=boe-a-2009-17242 https://www.boe.es/buscar/act.php?id=boe-a-2009-17242 https://codigodh.org/wp-content/uploads/2014/10/protocolo-de-estambul.pdf cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 287 this article defends the need to take into account the perspective of psychology to run asylum interviews and make decisions regarding the granting of refugee status on the basis of gender. this is a feminist mandate since it implies seeing the intersectionality of the applicant (crenshaw, 1991, pp. 1247). the categories of sex, gender, sexual orientation, gender identity, ethnicity, and age will influence how the applicant expresses fear and, necessarily, must be considered by the authorities that make decisions in the country of protection. this intersectional perspective may help to overcome the risk of the northglobalist eye of the examiner and thus part of its bias. 5. conclusions after studying the elements that make up the well-founded fear of persecution in the irl, this article concludes that in those cases in which there is persecution based on gender, the subjective element acquires special relevance. to this day it is understood that the process of verifying the subjective element in such cases is not yet polished due, among others, to the eminently masculine approach that prevails both in the regulation and in the practice of law when determining whether a person fits the definition of a refugee. admittedly, as has been highlighted throughout the article, both the unhcr, through its handbook, as well as regulation at the european regional level through the european asylum system, have contributed to an improvement in the implementation of a feminist approach to founded fear. proof of this is the requirement that interviews be carried out by persons of the same sex as the applicant. in spite of these advances, the exam of subjective element of the well-founded fear in cases of persecution based on gender has not been properly taken care of. this article proposes to examine the subjective element of well-founded fear of persecution from a psychological examination with a feminist approach, which allows to understand that in the first interview with the applicant, there may not be an explicit reference to fear, especially in those cases of gender violence or gender discrimination where the circle of guilt acts strongly against the victim. doing an examination of the subjective element of fear from a feminist perspective necessarily involves having this knowledge present. as it is already exposed, although this article highlights the usefulness of this mainstreaming positioning, it does not consider this position appropriate. this article recognizes that the main position of the irl literature of not considering the subjective element of the well-founded fear of persecution is a practical way to avoid biases and the risk that the authorities of the country of destination devalue the evidence of the real value of the actual risk. and, also, a way to overcome the practical risks inherent in objectively evaluating sentiments (hathaway, hicks, the michigan guidelines, unhcr). however, this article argues that this is also an "easy" and unlawful way of overcoming these biases and that the correct way would be to adequately train interviewers to apply an intersectional approach in their examinations. regarding the objective element, what should be highlighted as a conclusion is the concept, already well studied by literature, of a safe third country. the proposal for well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 288 a regulation of the european parliament and of the council establishing a list common to the eu of safe countries of origin for the purposes of directive 2013/32 / eu of the european parliament and of the council, on common procedures for granting or withdrawal of international protection, and by which directive 2013/32 / eu is modified, was denounced by different organizations of european civil society. regarding the feminist approach to the concept of a safe third country, it must note that the general tendency is to establish patterns of masculinized security. women and diverse identities experience their own persecutions that hetero-cis men do not. to this question it must also be added the twisted conception that one can speak of safe countries, if they are not safe for women. references adjin-tettey, e. 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(eds.) lgbti asylum seekers and refugees from a legal and political perspective. persecution, asylum, and integration. springer, belgium, pp. 299-323. https://doi.org/10.1007/978-3-319-91905-8_15 laviolette, n., (2013) “overcoming problems with sexual minority refugee claims: is lgbt cultural competency training the solution? fleeing homophobia: sexual orientation, gender identity and asylum” in spijkerboer, t. (ed)., fleeing homophobia. sexual orientation, gender identity and asylum, taylor & francis books, oxon, united kingdom, pp.3-31. https://doi.org/10.2307/1229039 https://doi.org/10.4324/9781003018728 https://doi.org/10.1007/978-3-319-91905-8 https://doi.org/10.17103/redi.73.2.2021.1a.07 https://doi.org/10.2307/3178066 https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2481&context=articles https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2481&context=articles https://doi.org/10.1037/14801-000 https://doi.org/10.1007/978-3-319-91905-8_15 well-founded fear in international refugee law: a feminist approach the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 290 lukac, e., & eriksson, h. (2017) “lgbt asylum seekers in sweden: conceptualising queer migration beyond the concept of “safe third country””, oxford research. mackinnon, c., (1995) hacia una teoría feminista del estado, cátedra, madrid. millbank, j., (2021) “sexual orientation and gender identity in refugee claims”, in costello, c., foster, m. and mcadam, j., (ed.) the oxford handbook of international refugee law. https://doi.org/10.1093/law/9780198848639.003.0043 morgan, d.a., (2006) “not gay enough for the government: racial and sexual stereotypes in sexual orientation asylum cases”, law & sexuality: review of lesbian, gay, bisexual & transgender legal issues, vol.15, pp.135-161. noll, g., (2005), “evidentiary assessment under the refugee convention: risk, pain and the intersubjectivity of fear” in gregor noll (ed), proof, evidentiary assessment and credibility in asylum procedures (brill 2005), pp. 141-160; available at: https:// studio.edx.org/assets/courseware/v1/4071650b6fd35ab6d2024c7ad2e1ff24/assetv1:louvainx+louv21x+1t2020+type@asset+block/martinus_nijhof.pdf peter a. levine, (2014), sanar el trauma. un programa pionero para restaurar la sabiduría de tu cuerpo, neoperson ed., pp. 17-21. quijano, a. (2000), “the coloniality of power and eurocentrism in latin america”, sage journals. v.15(2), 215-232. https://doi.org/10.1177/0268580900015002005 ramezankhah, forough, (2017), “the tale of two men: testimonial styles in the presentation of asylum claims.” international journal of refugee law, vol. 29, no. 1, p. 110-137; heinonline: https://heinonline-org.ejournals.um.edu. mt/hol/p?h=hein.journals/intjrl29&i=113. razack, s. (1995) domestic violence as gender persecution: policing the borders of nation, race and gender. canadian journal of women and the law, 45, 8. scott, m., (2018), refugee status determination in the context of ‘natural’ disasters and climate change a human rights-based approach, phd research at faculty of law, lund university, 2018. thomas, s., (2006), “assessing the credibility of asylum claims. eu and uk approaches examinates”, european journal of migration and law, 2006, pp. 79-96. available from: https://www.researchgate.net/publication/238425691_assessing_ the_credibility_of_asylum_claims_eu_and_uk_approaches_examined torres, a.m., alarcón, n. y bárcena, p. with the collaboration of the protection team of the unhcr delegation in spain, fundación abogacía española and unhcr, (2017), “the international protection of asylum seekers: practical guide for lawyers”. available in its online version: https://www.abogacia. es/wp-content/uploads/2017/07/version-final-guia-proteccioninternacional-solicitantes-de-asilo.pdf. tuitt, p., (1996) false images: the law’s construction of the refugee, london: pluto press. https://doi.org/10.1093/law/9780198848639.003.0043 https://studio.edx.org/assets/courseware/v1/4071650b6fd35ab6d2024c7ad2e1ff24/asset-v1:louvainx+louv21x+1t2020+type@asset+block/martinus_nijhof.pdf https://studio.edx.org/assets/courseware/v1/4071650b6fd35ab6d2024c7ad2e1ff24/asset-v1:louvainx+louv21x+1t2020+type@asset+block/martinus_nijhof.pdf https://studio.edx.org/assets/courseware/v1/4071650b6fd35ab6d2024c7ad2e1ff24/asset-v1:louvainx+louv21x+1t2020+type@asset+block/martinus_nijhof.pdf https://doi.org/10.1177/0268580900015002005 https://heinonline-org.ejournals.um.edu.mt/hol/p?h=hein.journals/intjrl29&i=113 https://heinonline-org.ejournals.um.edu.mt/hol/p?h=hein.journals/intjrl29&i=113 https://www.researchgate.net/publication/238425691_assessing_the_credibility_of_asylum_claims_eu_and_uk_approaches_examined https://www.researchgate.net/publication/238425691_assessing_the_credibility_of_asylum_claims_eu_and_uk_approaches_examined https://www.abogacia.es/wp-content/uploads/2017/07/version-final-guia-proteccion-internacional-solicitantes-de-asilo.pdf https://www.abogacia.es/wp-content/uploads/2017/07/version-final-guia-proteccion-internacional-solicitantes-de-asilo.pdf https://www.abogacia.es/wp-content/uploads/2017/07/version-final-guia-proteccion-internacional-solicitantes-de-asilo.pdf cristina maría zamora gómez the age of human rights journal, 19 (december 2022) pp. 271-291 issn: 2340-9592 doi: 10.17561/tahrj.v19.7216 291 young, i. (2000) la justicia y la política de la diferencia. madrid. ediciones cátedra. wood, e., (2012), “variación de la violencia sexual en tiempos de guerra. la violación en la guerra no es inevitable”, revista estudios socio-jurídicos, vol. 14, nº. 1. received: june 13th 2022 accepted: october 12th 2022 well-founded fear in international refugee law: a feminist approach abstract 1. introduction 2. conceptualization of wellfounded fear of persecution: objective element vs. subjective eleme 3. evaluation of the elements of well-founded fear 4. disputes in the appreciation of the elements of well-founded fear 5. conclusions references the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 22 implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo josé israel herrera1 abstract: since 1997, the mexican government has founded in the province of quintana roo a traditional style of justice instituted on a previous indigenous mayan traditional legal system. this article provides a reflection about the way the mayan justice has been recognized and implemented in the state of quintana roo, based on the incorporation of the rights derived from the ilo convention 169 signed by mexico in the last century. mexico possesses and recognizes the mayan legal system, but with some additions which causes the existence of two different structures the traditional and the new one which coexist in the same social field at the same time. keywords: recognition; human rights; maya; mexico; convention 169 summary: i. introduction; ii. the maya ethnic group: brief characteristics and social organization; iii. the traditional maya legal and justice organization; iv. the way the traditional maya institutions of administration of justice are legally recognized in quintana roo; v. the indigenous judicial council in quintana roo; vi. magistrate of indigenous affairs; vii. material and personal jurisdiction of traditional courts of quintana roo; viii. traditional judges; ix. procedural rules; x. conclusion: can we talk of an improvement of indigenous rights? xi. references. i. introduction in 1990 the mexican government ratified the ilo convention 169. this legal action helped to establish different measures to assure the implementation of human and indigenous rights in the country. all the mexican legal system was modified to introduce the new group of rights this convention brought. “in the early 90's the government signed the convention 169 on indigenous and tribal peoples in independent countries of the international labour organization that is replacing the convention 107 of the same organization and doing away with the assimilative thrust of this former convention 107. mexico was in a period of countless amendments and structural reforms designed to bring the country to a first world in a very brief period, to ameliorate the country's international reputation while the free trade in north america was approved. one 1 centre for legal studies of the autonomous university of campeche. member of the national council for sciences and technology of mexico (conacyt) level 1 (jiherrer@uacam.mx). josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 23 of the main concerns of the government of the day was to silence the claims of indigenous groups that after almost five hundred years of the first european contact, still were the most neglected, abused and least developed parts of the population. the signing of the convention 169 would show that the rural area accepted them in judgment and was doing its best to rectify preceding injustices” (herrera, 2015: 69 70). assies cited by herrera 2015, comments: “in 1989 it adopted the new ilo convention 169. mexico was the foremost latin american nation to ratify the convention, although it was to propose itself as a progressive nation in the international sphere. inside the country the ratification went almost unnoticed.” (assies, 2003: 75 mentioned in herrera, 2015: 70) de la peña coincides with a similar scene, noting that in 1989 this document was ratified because of international pressure and political-economic concerns and not because the government studied the indigenous case as an instance of major care. mexico ratified the convention in 1991, when former president salinas (1988 – 1994) was interested in gaining legitimacy for his government both within mexico and beyond. de la peña notes that the changes also had strong relations with international political and economic circumstances and concerns of the government of the day. (herrera, 2015: 70) also, the world conference on human rights (14-25 june 1993, vienna, austria) got an enormous influence on the mexican legal system. on 25 june 1993, representatives of 171 states adopted by consensus the vienna declaration and programme of action of the world conference on human rights… presenting to the international community a common plan for the strengthening of human rights work around the world. the vienna declaration and program of action marks the culmination of a long process of review and debate over the status of human rights machinery in the world. it also marks the beginning of a renewed effort to strengthen and further implement the body of human rights instruments that have been painstakingly constructed on the foundation of the universal declaration of human rights since 1948. the conference took historic new steps to promote and protect the rights of women, children and indigenous peoples by, respectively, supporting the creation of a new mechanism, a special rapporteur on violence against women, subsequently appointed in 1994; recommending the proclamation by the general assembly of an international decade of the world's indigenous peoples , which led to the proclamation of two decades (1995-2004 and 20052014); and calling for the universal ratification of the convention on the rights of the child by the year 1995. as of today, all countries, except for somalia and the united states of america, have ratified the convention. the implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 24 vienna declaration also made concrete recommendations for strengthening and harmonizing the monitoring capacity of the united nations system. (united nations, 2017). one of the main results of the world conference on human rights was the proclamation of the first international decade of the world’s indigenous people (19952004). the international decade of the world's indigenous people (1995-2004) was proclaimed by the general assembly in its resolution 48/163 of 21 december 1993 with the main objective of strengthening international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, education and health. the theme for the decade is “indigenous people: partnership in action”. in the same resolution, the general assembly requested the secretary-general to appoint the assistant secretary-general for human rights as the coordinator of the decade and established the voluntary fund for the decade to assist the funding of projects and programmes which promote the goals of the international decade of the world's indigenous people. in its resolution 52/108, the general assembly appointed the high commissioner for human rights as coordinator of the decade. in its resolution 49/214 of 23 december 1994, the general assembly adopted the short-term program of activities for 1995. the comprehensive program of activities was adopted by the general assembly in its resolution 50/157 of 21 december 1995. the general assembly also authorized the establishment of the voluntary fund for the international decade for the purpose of financing projects and programmes during the decade (united nations, 2017b). all of them made such a great influence over the mexican legal system, especially for the state of quintana roo where the legislators decided to implement an indigenous legal system based on the mayan justice. so, in 1997 the state of quintana roo, after a couple of years of discussion, decided to carry out a fresh direction to accept and recognize the way the mayan justice was being performed and mixed booth systems the traditional one and the state one. this state decided to carry out an indigenous legal system based on a previous traditional system under a mayan vision, using part of the previous mayan military and religious structure that still prevail in the area and that has been operating in the area for decades. the government decided to base the decision of creating this new system suing this convention to justify its implementation. josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 25 ii. the maya ethnic group: brief characteristics and social organization the word “maya” defines an ethnic group that lives in the mexican states of yucatan, campeche, quintana roo, tabasco, chiapas, oaxaca and the countries of belize, guatemala, honduras, as well as the western part of el salvador. (serrano 2003). the present mayan society is widely extensive and complex. within the yucatan peninsula society, we find four categories of people: whites, noble mestizos2 and the rebels. the last group is formed by the “rebel macehuales”. they are the descendants of the fighters of the caste war of 1847. all of them are organized around the cult of the “talking cross” –the same that lead them through war. they still pray at their ceremonial centres and practice their old religion. it is estimated that this group embodies about 10,000 persons in the state of quintana roo. the mayan group of the yucatan peninsula is spread over the three entities with a geographically uneven population. “as a result, by 1930, to speak only of modern times, yucatán had 380 096 inhabitants, while campeche had 84 630 and quintana roo hardly exceeded 10 000. today the differences have grown less: for the year 2000 yucatan was in the lead with 1,658,210 inhabitants, quintana roo had 703 536 inhabitants in 1995 and 874 963 in 2000. campeche moved into third place with 690 689 inhabitants in 2000” (inegi 2001). the maya population in the state of yucatan forms 59.2% of the total population. this means most of the population is maya. iii. the traditional maya legal and justice organization the history of the maya society has been long and complex as they were part of the process of mexico becoming a state, its independence from the spanish crown, external and internal wars, the mexican revolution and the following public policies that were designed for them. on arrival of the conquistadors, the maya resisted the invasion; the spanish took nineteen years to give up the north and middle section of the peninsula of yucatan, while some eastern states, northeasters and southern rebels remained physically and culturally apart from the spanish dominion. the spanish imposed a government of indigenous people called “encomienda”, which permitted to master the native workforce, the collection of taxes and recruitment of the population. in the second half of the eighteenth century the “encomienda” system was replaced by corn farming and cattle ranching through which the natives were underpaid for their services.3 2 mestizo denotes a person who is half-blood maya and spanish. 3 bastarrachea manzano, ramón. http://www.cdi.gob.mx/ini/monografias/mayas.html. implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 26 they lived under an eternal debt with the proprietor of the kingdom because they had to compensate for everything they demanded. thus, the monetary values were fixed by the owners to make it costly. and this debt goes from generation through generation. the continuous and systematic exploitation of indigenous people, produced many social problems and popular discontent was increasingly growing. thus, in 1847, the same year as the united states of america invaded mexico, the so-called “caste war” (1847 – 1901) in which the maya, who were suffering from oppression, domination and destruction of their structures and foundations, organized a revolt. they “paled in a military, spiritual, social organization that obtained significant victories. after three years of warfare, the guerrillas came to besiege the cities of merida and campeche. but insurgent troops withdrew to return to farm their crops, so the yucatec’s saw the opening to take advantage and recover militarily.”4 the caste war reshaped the way of living of the yucatec maya in the states of campeche, yucatan and quintana roo. many of the mayans at that time fled into the forest and lived in that location for decades, where they developed their institutions and kept the same military –religious structure used in the caste war. they copied and took after the names of the mexican military structure of the 19th century, such as captains, sergeants, corporals and others. the caste war reshaped the way of living of the yucatec maya in the states of campeche, yucatan and quintana roo. many of the mayans at that time fled into the forest and survived in that location for decades, where they developed their institutions and kept the same military –religious structure used in the caste war. they copied and took after the names of the mexican military structure of the 19th century, such as captains, sergeants, corporals and others. “in the central region of the state of quintana roo and some in the easterly division of the yucatan and around the city of valladolid the traditional authorities derive from the caste war organization, with its system of safeguards in each of the residential areas that established “military companies” formed by married men, who defended a military structure, from corporals to commanders. moreover, each community appoints its own local authorities. most significant, nevertheless, are the “military companies” which still runs in the ceremonial centres in the region.” (ruz 2006: 57) at these times, this structure holds only in the province of quintana roo, because in the state of yucatan and campeche, the minuscule pieces of the structure were wiping out and did not realize it until today. in the residential areas, the individual responsible for the 4 bastarrachea manzano, ramón. opus cit. josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 27 disposal of justice is the head of the village, ranch, plantation or rural area or other senior family members and lastly, the boss or the proprietor of the land. iv. the way the traditional maya institutions of administration of justice are legally recognized in quintana roo. in the jungle of quintana roo, this structure survives to this day. the traditional maya institutions of administration of justice are at once acknowledged by the indigenous justice, law act of the state of quintana roo. this act incorporates most of these traditional institutions within the official justice system, but also imposes conditions and formalities for accepting their verdicts. ace of the postulations that the law has established, is that indigenous judges voted by the communities under direction of the superior court of quintana roo. not all the members of the religious-military-judicial have been formally incorporated into the new structure, and there is also some of them who are not mentioned in the law, such as mayan priest and prayers. nevertheless, these priests and people in the military judicial structure are still functioning in their traditional ways regardless the new structure. this is attributable to the fact that the indigenous justice, law does not deal with the entire spectrum of tasks done by maya authorities and particularly does not cover military or religious issues explicitly. they practise rites associated with harvest and rains, while the military keep safeguarding centres and practising ceremonial rites related to holy men, ensuring the security of the community, as well as exercising justice among their equals. this means these traditional institutions of cultural reproduction keep going as before as a parallel phenomenon to the new official position of mayan judges. the caste war began in 1847. it had as a main purpose for the maya rebels to regain their autonomy and to eliminate the “foreigners” of the entire peninsula of yucatan (villa, 1987). because of the war, the mayan adopted a military formation, where men formed “companies.” on the crest of that organization was the chief minister of the talking cross, he was also appointed governor and his office was for life. each company had a group of leaders with military ranks ranging from commander to privates (villa, 1987) in view of this situation it is possible identify two levels of mayan institutions of regulation: 1) the traditional system 2) the one recognized in the indigenous justice, law of the state of quintana roo. the first system, the traditional, is formed by the religious, military and judicial institutions. they serve the purpose of guarding the talking cross, the ceremonial centres, which had led the mayas into the revolt and for administration of justice in the region. the implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 28 hierarchy has been established as follows: generals, captains, lieutenants, sergeants, corporals, soldiers, priests, prayers, scribe, gentlemen. in quintana roo there are traditional centres where the mayan people venerate their gods, pray or celebrate traditional marriages and baptisms. also, they keep several images of their “saints”, their holy cross. these religious images were acquired as gifts, bequests or as trophies of war. the traditional centres in quintana roo are: tixcacal guardia, chancá veracruz, chumpón, tulúm, cruz parlante, and those recognized by the high maya council.5 the present structures are built on a system of guards in all the communities called “companies” formed by honourable married men, who maintained a military structure, from corporals to commanders. moreover, each community appoints its own local authorities. “this form of ethnic organization is focused on the worship of the cross. each family maintains a cross of the family and each community also has its own community cross.” (ruz 2006: 57) v. the indigenous judicial council in quintana roo. the traditional indigenous justice system established in 1996 is integrated by the indigenous judicial council (ijc), a magistrate of indigenous affairs (mia) and the mayan generals. the indigenous judicial council is an institution composed of five maya generals who counsel the judges and became a bridge between the traditional structure and the state. this council is an institution that works more as an advisor than a decision maker. this indigenous judicial council has three basic functions that involve the supervision, training and orientation of traditional judges. the maya generals maintain contact and periodic deliberations with the judges and the magistrate. the superior court of the state of quintana roo has certified these generals as part of the state judicial system. in its capacity, it incorporates the mayan general counsel to the state judicial system. the state recognizes and accepts the dual character of the indigenous council and the state indigenous system. the indigenous justice law (quintana roo) legitimises some of the traditional activities of the administration of justice the generals have been executing. contrary to what might be expected, the generals do not consider their actions as limited, but extended. they sense that they are now in charge of more people due to their belonging to the indigenous judicial council in quintana roo, which moreover allows them to take part in an institution that gives them visibility. 5 this according to the article 45 of the law of rights, culture and organization of the state of quintana roo. josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 29 their traditional activities have been extended into official state justice and indigenous laws have been accepted by the state. this allows the generals to access another level of justice which gives them political influence over state authorities. the indigenous justice law of quintana roo states in its article 8 an indigenous judicial council in quintana roo for supervision, training and orientation of the traditional judges. it will be headed by a magistrate of indigenous affairs chosen by the superior court of justice of quintana roo. the council shall have five members selected from each of the mayan ceremonial centres. the council will check the actions of all traditional judges and of the magistrate of indigenous affairs and will provide the necessary means to function make all traditional judges working properly. article 9 states that the superior court of the state, will select the traditional judges. all judges must be outstanding members of the community, who can speak mayan language and know the uses, customs and traditions of their community. vi. magistrate of indigenous affairs. this magistrate has a dual role in the scheme of the indigenous justice law quintana roo. on the one hand, he is responsible for hearing appeals from decisions handed down by the indigenous judges, and second, to organize the indigenous justice system through the organization of the courts. the mai organizes, manage and coordinate the annual budget, policies to be followed, and election of judges, among other functions. the present magistrate, is the central authority and the axis around which revolves the administration of indigenous justice. having to deal both with the traditional system and the judicial officer of the state of quintana roo, he becomes the interpreter between both systems making him the key figure of traditional indigenous justice. this magistrate holds the right to cancel, change or confirm the decision of the judges under an appellation process mentioned by the law. the law states in its article 30 “the disagreements that may arise against the traditional judges in the exercise of their function will be dealt by the magistrate of indigenous affairs. the corresponding document will be submitted to the judge concerned within three days of the decision.” selected in 1997 the magistrate has, until now, received only one case of an appeal from a person unconvinced with the decision of an indigenous judge. this case was not pursued, however, as the file was incomplete and the appellant did not persist. he also submits to the superior court of quintana roo the requests to install modern traditional judges in the communities. when the superior court of quintana roo approves the budget, and authorizes this new judge, then the mai will consult the community to select a traditional judge who meets the requirements stipulated in the lji. implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 30 the mai tries to meet with all members once a month. he sends a van to transport them to the place where they will be bringing together and to return them to their places after the meeting. at meetings, they talk about current problems in the communities, try to resolve problems of the prior month, and plan or set an agenda for the next one. the magistrate leads the meeting and drives the schedule. he listens, gives an opinion and advises the judges about the problems which must be solved immediately and their immediate tasks. he asks for the consensus among all the generals and the magistrate decides the measures to be deployed. he also keeps an eye on personal activities of judges, their interests and needs, for example, materials or resources needed for the exercise of their activities. vii. material and personal jurisdiction of traditional courts of quintana roo the indigenous justice law of the state of quintana roo has ruled that judges have attributions and jurisdiction in three subjects, civil, family and criminal law. the indigenous justice law of quintana roo states article 14.“the traditional courts have jurisdiction to hear and settle disputes in civil, family and criminal matters”. article 15.“in civil matters traditional judges have jurisdiction in the following matters, i. contracts generating all kinds of rights and obligations, the monetary value of which does not exceed one hundred minimum wages. included are also the obligations out of debts, up to the amount indicated and ii.the contracts stipulating obligations related to farming, livestock, poultry, beekeeping, hunting, fishing or forestry. article 16.in family matters, traditional judges have jurisdiction in the following matters: i. maya marriages and its dissolution, which marriages for the application of indigenous law are hereby recognized officially as valid marriages and recognized by the maya authorities and dignitaries of the place where the marriage was celebrated.; ii. custody, education and care of children. iii.maintenance and iv. family disputes that affect the dignity, customs or traditions of the family.” article 17.“in criminal matters, traditional judges have jurisdiction in the following offenses: i.stealing an amount not exceeding one hundred minimum wages; ii.cattle rustling of minor species (such as sheep, pigs and goats), as well as the cases referred to in fractions i through iv of article 148 of the penal code for the state of quintana roo; iii. fraud in an amount not exceeding one hundred minimum wages; iv.breach of trust in an amount not exceeding one hundred minimum wages; v.abandonment of people; vi. damage to the amount of one hundred minimum wages; vii.all other crimes that are being prosecuted on the basis of a complaint under the penal code for the state of quintana roo.” josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 31 in civil matters, the judges may hear conflicting about all types of contracts that will generate rights and obligations, whose benefits do not exceed approximately $ 350 us. within this category are included all credits or debts up to $350 us. they can also address, commercial contracts related to livestock, poultry, bee-keeping, hunting, fishing or forestry that is raised. in criminal cases, the traditional courts have jurisdiction over the following crimes: damage, thievery, fraud in an amount that cannot exceed approximately $ 330us. it also includes minor incidents with purchases, trading and cattle rustling and its derivatives.6 the judges have the power to attend minor faults such as verbal aggressions, misbehaviour in public, disrespect to an authority, or to a saint or an image, such as failure to show the respect a person must have in the ceremonial centres. as for family matters, judges have jurisdiction to rule on custody, education, childcare, maya divorce and alimony disputes. also, they may deal with misbehaviour that goes against dignity and customs of family life. this is the first legislation in the country that recognizes the traditional jurisdiction in this area. divorce is a particularly sensitive area. among the traditional judges, only three divorces have been dealt with (all in the same community of chan chen i). a case of divorces constitutes a paradoxical category because divorce runs counter to local values as in maya communities’ marriages are perceived as being made for life. “this month i had a lot of work. many people came to me for separations. but all of them were well attended, and they are already pacified” (reyes and ek 2001: 94). the quote above shows that the judge of this court prefers people not to insist on divorce; however, if parties push a little more, the judge will accept their wish to be divorced. should the judge still not accept what the parties want, they may report him to the mai to have him sanctioned and/or allow them to go on with the divorce. if necessary, if they do not wish to continue under the indigenous jurisdiction, then they can choose to bring their case to the mexican state tribunals. let me stress again that the official competencies of the indigenous judges are not the same in the three states of the yucatan peninsula. for example, the organic law of judicial power of the state of campeche, in article 75-5 states that “under any circumstances conciliator’s judges have jurisdiction over matters of trade or business, divorce, dissolution of marriage, paternity, adoption, guardianship, disputes over land tenure, temporary child custody, physical separation of spouses and determination and payment of alimony.” here, family matters are excluded, while in the law of quintana roo, family cases do fall under the competence of the indigenous judges. 6 articles 17 and 18 of the indigenous justice law of quintana roo 1997. implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 32 to enforce their decisions, judges may choose and impose some of the following coercive and punitive punishments: i. warning; ii. fines up to thirty minimum wages, (currently $4 us dollars per day) iii. jail up to thirty-six hours.7 in criminal cases, judges may impose penalties and security measures like the following: i. monitoring of the authority; ii. fines up to thirty minimum salaries; iii. repair of damages; iv. working for the community; v. prohibition of going to a specific territory territorial area or live in it; vi. seizures of tools and objects related to the crime.8 the judges can pick up one, two, or more different sanctions to be imposed at the same time. for example, judges can order people to do some work in the community, pay damages and a fine. it is up to the judge and the situation. to impose sanctions, judges consider the circumstances of the person, especially the economic one. usually communities’ economies are depressed; thus, monetary sanctions are not imposed frequently. in most of cases, people are ordered to do community work. this work is done in public places to show the person as an offender who just has been punished and this public humiliation is a punishment that hurts most. another important aspect of the sanctions of the indigenous justice, law is the requirement that the judicial decisions do not violate human rights. to stress the importance of this requirement, the judges get recommendations and training courses run by the mai, the cji, or the superior court of quintana roo. viii. traditional judges the region's indigenous judges are elected in community meetings convened by the superior court of quintana roo, the magistrate of indigenous affairs and the indigenous judicial council in quintana roo. until today, there are 17 who have been chosen in this way. 9 all the elected are men, although the invitation is not issued to any gender. 7 article 20 of the indigenous justice law of quintana roo 1997. 8 article 21 of the indigenous justice law of quintana roo 1997. 9 article 9. the superior court of the state, at the proposal of the judicial council of indigenous justice, will designate the traditional judges. the appointment of judges and magistrates of traditional indigenous affairs josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 33 until today, there are 17 traditional judges, five mayan generals and a magistrate. the five generals form a council of the indigenous judiciary. all traditional judges appointed for the area have a monthly compensation for their activities of a little less than the equivalent to $ 200us. these judges are selected for life and no one has resigned. the only changes occurred because of death. in addition to their traditional activities as judges, they can engage in other jobs and activities, among which are blacksmith, mechanic, baker, mayan priest, and peasants; being a farmer is the most frequent job the judges hold. ix. procedural rules when a complaint is set up, the judge then issues a time and date for the parties involved in the dispute to appear in court. if the first summon is missed, the judge provides two more opportunities to have their case heard. if all three appearance dates are missed, the judge may send the case to an ordinary state court, and this generally means that it will take longer to resolve the dispute. during the mediation, both parties to explain the case and their positions. judges are limited at this point to be mediators. the mediation takes place in mayan or spanish or in both languages. if a party speaks only in mayan or spanish, the judge will be the translator and will give a voice to all the stakeholders. a crucial element of conciliation is that people are accompanied by members of their family. the judges are aware that usually a predicament, a felony, a transgression or an offense involves the whole family. the role of these family members is a crucial element in their way of trying to find a settlement. the judges take great care when family members are present at the mediation because people tend to favour and protect their relatives. also, people may be influenced by the pressure coming from the family to act in one way or another. conciliations are based on consensus among the parties. the solution emerges from the parties involved and the judge. legally, it depends on the parties whether they will submit their case to the indigenous judges and/or whether they want to continue their case there. the judges only deal with cases where people have chosen to submit their problem voluntarily. parties can withdraw their case at any time. however, after the decision is settled it becomes a legally valid and binding decision. “the word for the indigenous people, in the communities of quintana roo, is worth a lot. the word is the truth” (reyes and ek 2001: 93-94). shall be on upstanding members of the community, who speak the language and knows the uses, customs and traditions of their community, without having to qualify or have the constraints set organic law of the judiciary of the state. indigenous justice law of quintana roo. implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 34 the indigenous justice law lji has declared this kind of justice as “alternative and volunteer”. this law states in its articles six and twelve that the person has the choice of whether submit his case or not to the legal indigenous process. the lji points: article 6.the indigenous justice is an alternative to the ordinary judicial courts and judges of the common order, this jurisdiction will always be expedited under the terms and conditions agreed in the political constitution of the mexican states, the states constitution and ordinary laws. article 12.if the parties, decide the mediation by the traditional judge to settle their differences by agreement, it shall be approved at a properly and execute a mandate of this decision. all of this means that a person can decide where to deal with a case, with the traditional judge, or with the local (formal) authority. for example, in a case of theft, the offender can go to the state, municipal office of the town or to the federal or state prosecutor to start with a complaint. also, he can go to the traditional judge of his community (if there is one there). this choice will be up to him. when this person resolves attend with the traditional one, the conciliation procedure or investigation of the criminal behaviour will be started. however, if mediation is not set or if the person does not feel confident, do not know the existence of this justice, or just do not have the will to deal with the traditional justice, he still has the right to stop the process and continue with the state or federal justice. nevertheless, once the parties get an agreement under the traditional justice, this decision will be final, but only if they do not decide to appeal the decision to the mai. the mai has tried to standardize and homogenize the agreements by issuing all of them with a “master model” with blank spaces to be filled with the data of individuals and the decision taken. this is also to help judges who have problems in reading and writing to document their activities, in which case, the judges ask an assistant to fill the record and read it in front of him. this because a few judges do not know how to write or read. the magistrate of indigenous affairs of quintana roo said: “we have tried to document all actions of the judges. many times, they do not make records in cases such as gossips, rumours or tittle-tattle. sometimes they hide the file or the case is settled in secrecy. i have tried to generate information to make comparisons, but it is a bit difficult, because they are very jealous of their private life. however, we have tried to support them by providing them with a master model to facilitate their work. (reyes and ek 2001: 94). all the ceremonial centres, except x-yatil, have mayan priests who can marry people under a mayan ceremony. they identify their church, masses, sacraments and rituals as belonging to the mayan catholic church. this form of marriage is widespread among the josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 35 population of the region. however, this has created problems in the relation between the state and the mayan people because before 1996 the traditional marriages were not recognized as valid. a mayan person said: “i got married in tixcacal and one day i had to do some paperwork with the city of carrillo puerto and a bureaucrat told me: where did you get married? in the ceremonial centre of tixcacal? sorry, but that marriage is not valid. you must go to the civil registry office to get married again by a civil law” (reyes and ek 2001: 91-92). however, the indigenous justice law of quintana roo recognizes the mayan marriage ceremony conducted in the ceremonial centres, as an official and valid marriage. marriages have been made since ancient maya times in the ceremonial centres by the mayan priest in the presence of godparents, witnesses, and the spouses. the services of the judges are free and only for weddings and baptisms they charge almost $2.5us for issuing a certificate. if the couples do not have the money, it will be provided for free. the certificates begin with the words “ceremonial centre of (location)” act of marriage. they have also added stamps of the mayan catholic church. this is a name used in the area to stress the mayans have their own religion. x. conclusion: can we talk of an improvement of indigenous rights? the state of quintana roo has implemented a new legal system to fulfil indigenous rights to obtain their justiciability. this measure establishes two well differentiated structures that must live together, the old indigenous structure and the new official indigenous system. both are still in a process of recognition of each other and a slow assimilation of the new structure. this means the human rights can modify the way of living of an indigenous group in diverse ways. for instance, there is a new official traditional way of justice that did not exist before 1997. so, there is a huge debate can this be called traditional? if is not inspired and came from the base, can this still be called indigenous? this resolution did not come from a prior consultation; it was imposed in all the area even when it changes their way of living. this is a system that can be called as traditional official justice and as a new legal system, it will require time to develop and start a process of dialogue with both parts. what can be said is that if both parts dialogue with respect and in equal positions the system will help to implement properly the goal of helping to develop the indigenous rights in the area and part of the ilo convention 169. all of this is framed under a well-known phenomenon called formal legal pluralism. implementation and practice of indigenous rights: the case of the mayan group of the state of quintana roo the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 36 this happens when “governments officially recognize the existence of distinct indigenous groups, ethnic or minority groups in their country and accord them the right to apply and develop their own institutions of administering justice” (herrera, 2015: 69). “in the case of mexico, the relation to these distinct communities has been shaped and reshaped by different historical circumstances and legal changes. recently more interest has emerged in accommodating the grievances of the indigenous peoples in mexico while also within the social sciences somewhat more attention is paid now to the issues involved” (herrera, 2015: 69). “the restructuring of international political forces is in relation to processes of decolonization in the world. it also situates the grievances and social movements for autonomy and / or self-determination in africa, europe and asia” (valdivia, 1992: 111). the existence of these proper indigenous regulatory institutions is due to circumstances like the absence of formal authority in those regions, the big distance to the state capital and the strong legitimacy of these institutions within the local communities. she discusses several examples of interlegality and forum shopping (herrera, 2015: 70 71). though these judges appear to belong to the system, at the same time they are outsiders. they do not have an official remuneration or allowances as an official state judge would. they don’t receive social services for themselves or their family. they have no retirement program and if someone gets an accident, they are not taken care of by the state. the state pays them only monthly “bonuses” and accepts no further responsibility. when the indigenous judges travel to other state offices or outside of their town, they are not always welcomed or respected by the formal authorities. the magistrate of indigenous affairs prefers to accompany the indigenous judges to avoid potential disrespect from the local authorities. the magistrate of indigenous affairs says that little by little the work of the indigenous judges has been reaching the municipalities of the region, but still they are relatively unknown to other higher levels of the state government administration. are we talking here on an injustice to get justice? governments usually start the implementations of human rights when a new treaty is signed. but the results are often ambiguous or uncertain. here human rights were implemented to try to get a better justice. so, it means also that on the other hand, it must be recognized that in has helped to relieve the justice problems in the area such the distance from formal authorities, the use of spanish in formal proceedings, being under a complicated formal system having now judges who speak their language, and live in their communities. also, as time passes by, the new judges will start to be traditional and people will see them as part of their way of living. josé israel herrera the age of human rights journal, 10 (june 2018) pp. 22-41 issn: 2340-9592 doi: 10.17561/tahrj.n10.2 37 xi. references assies, willem, gemma van del haar and andré hoekema, eds. 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(1997) law of rights, culture and indigenous organization of the state of quintana roo” (2014) mexican political constitution. méxico: porrua. i. introduction ii. the maya ethnic group: brief characteristics and social organization iii. the traditional maya legal and justice organization iv. the way the traditional maya institutions of administration of justice are legally recognized in quintana roo. v. the indigenous judicial council in quintana roo. vi. magistrate of indigenous affairs. vii. material and personal jurisdiction of traditional courts of quintana roo viii. traditional judges ix. procedural rules x. conclusion: can we talk of an improvement of indigenous rights? xi. references law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 1 law, memory, and silence: the case of anti-communism laws in indonesia harison citrawan1, ganesh cintika putri2 abstract: this article investigates the role of indonesia’s anti-communism laws in shaping and shifting collective memory of past atrocities into an imperative history. these laws are to be understood as a set of rules enacted by the state to proscribe the existence of communism by criminalizing speech of any kind that disseminates the idea of marxism, leninism, and communism. based on our analysis of several judicial decisions and empirical evidence related to the creation of collective memory, we contend that the problem of the anti-communism laws is twofold. first, these laws show a conflict between law and history because they enable judicial practices to transform the judges into the arbiters of history. second, these laws—in addition to other institutions, mechanisms and ultimately embedded ideas/norms—have been enabling a process of social silencing that infringes freedom of expression as they have moved away from punishing acts to punishing speech, writing and certain ways of being. keywords: anti-communism, indonesia, law, memory, silencing. 1. introduction indonesia’s transition to liberal democracy has been largely haunted by the legacy of state sponsored violence that happened in the past. more importantly, given the absence of a comprehensive effort to (legally) resolve past human rights violation cases, the state has been unable to achieve the promised reconciliation declared by the people’s representative assembly during the transition in 1999 (setiawan, 2019). against this backdrop, the 1965/66 communist killings is still considered as one of the darkest historical events in the country and resonates in almost all indonesians’ memories across generations. this atrocious memory has been shaped by “denial and competition, stigmatization and marginalization” (eickhoff, klinken and robinson, 2017). after the renowned failed coup d’état attempt on september 30th 1965, the state made a grand narrative of treachery perpetrated by the communist party of indonesia (partai komunis indonesia—pki), alleging them for having kidnapped and killed six generals and masterminded to topple president soekarno’s revolutionary leadership. during the period of october 1965 to march 1966 the killings targeted those who are indicated as pki member or sympathizers. this tragedy happened five months before the official statement to ban the party. only in march 1966, the state then banned the spreading of communism (and leninist and marxist) doctrine and prohibited the reestablishment of the indonesian 1 researcher at national research and innovation agency, indonesia (hari051@brin.go.id). 2 policy analyst at ministry of law and human rights, indonesia (ganesh.cintika@gmail.com). mailto:hari051@brin.go.id mailto:ganesh.cintika@gmail.com law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 2 communist party through presidential decree 1/3/1966.3 the decree was signed on 12 march 1966, one day after president soekarno was forced to transfer the executive power to lieutenant-colonel suharto. it is also for the first time that the military government officially used the acronym g30s/pki, which stands for the 30th of september movement by pki, to symbolize the blaming of the attempted putsch squarely on pki (melvin, 2018, p. 177). four months later, the decree was reinforced through the enactment of the people’s representative assembly decree (tap mprs) xxv in 19664 (cribb, 2001, pp. 231–236). since then, the law has become a powerful legal instrument to banish the party, to persecute and discriminate those identified as communism sympathizers, and to later legitimize the mass killing of communists during the military regime. situating this phenomenon in transitional justice discourse, it is suggestive that the rule of law is a fundamental indicator of transition to democracy (arthur, 2016). current studies on indonesia’s transition have primarily focused on identifying the limits of legal-institutional reform at the state level (sulistiyanto, 2007; suh, 2012; setiawan, 2019). while these studies are indeed valuable, focusing on the state level may limit our ability to understand the complexity of legal-institutional responses at the individual cases level. in that regard, we submit that individual cases are in fact crucial sites in which the entanglement of the rule of law and collective memories is made apparent. despite some legal-institutional reforms the state has performed, these individual cases demonstrate that collective memories continue to affect legal-institutional responses toward communism in ways that undermine the ideal of the rule of law. this study contributes to existing scholarly works on violence, law, and memories which have been already done in a variety of disciplines—for instance, studies on the role of historical sites, (eickhoff et al., 2017; mcgregor and setiawan, 2019) social activism, (wahyoeningrum, 2013) art, (hatley, 2009; heryanto, 2012) media, (ikhwan, yulianto and parahita, 2019) and academic institutions (wahid, 2018). building on and adding to these approaches, this article aims to focus on examining legal institutional responses on a micro-sociological level, particularly through legal case analysis. looking at the intersection of law and memory can help us explain why the transition to democratic processes remains defective in indonesia (citrawan, 2018b; wieringa and katjasungkana, 2019). conceptually, law contributes to the shaping of memory, while at the same time, memory is influential in the crafting of law and legal practices (savelsberg and king, 2007; lopez, 2015). nonetheless, little has been done in examining the way 3 the decree was signed on behalf president soekarno. however, since the document was enacted one day after the executive power was transferred to president soeharto, it is fair to claim that it is president soeharto who banned the party. 4 article 1 tap mprs xxv/1966 states that “[the people’s representative assembly] accepts and strengthens the policy of the president/ supreme commander of the armed forces of the republic of indonesia/great leader of the revolution/mandatory of the provisional people’s consultative assembly, on the dissolution of indonesia communist party including its wing organizations as outlined under presidential decree 1/3/1966 and enhances the affirmation policy to the status of a parliamentary decree”. harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 3 in which memory of the past affects the law in the country, either in terms of its creation or enforcement (setiawan, 2018). moreover, only few scholars have discussed such an issue in the context of indonesian historical violence, particularly the 1965/66 communist purges and killings (mcgregor and setiawan, 2019; setiawan, 2019). in this context, this study examines how the existing anti-communism laws and judicial practices have shaped indonesian collective memory about the past and vice versa. while some current studies in transitional justice have employed law as a means to promote reconciliation and victims’ reparations for historical violence (mcauliffe, 2013; citrawan, 2018a), this article emphasizes the idea that law has an important role in shaping collective memory of past violence (löytömäki, 2014; lopez, 2015; osiel, 2017). this study asserts that the anti-communism law mystifies the existence and the threat of communists in the country. this mystification has evidently hindered any reconciliatory efforts (miller, 2018), and as such it is a clear indication of a nexus between the application of the laws and the current collective memory about past atrocity in indonesia (zurbuchen, 2002, p. 572). in that context, there has been a body of literature that conceptualizes communism in post-transition indonesia as a specter (heryanto, 1999, 2005). this sort of specter of communism, as mcgregor argued, persists as a result of “the firmly entrenched historical orthodoxy that the military created during the soeharto regime” (2015, p. 6). based on this understanding, this study employs a law and society approach, that is, situating law in the context of its socio-historical settings. this approach mainly challenges the idea that law is autonomous and apolitical (cotterrel, 2004; mather, 2013). this interdisciplinary approach builds upon the intersection between law, memory, and history, which enables us to address three critical questions of: how the anti-communism laws treat history, how history appears in court decisions, and how the authority of history is used to authorize legal decisions (sarat and kearns, 2005). this article is divided into three parts. first is a brief survey of the relationship between law and collective memory, in which we claim that law’s normalizing effect is capable of creating collective memory. second is a descriptive analysis of several legal cases that by and large determine the history and memory of communism. this description will be divided into two categories: criminal cases and cases beyond criminalization. last, the third part is an analysis of the creation of social silence as a result of the enforcement of anti-communism laws. particularly, we are interested in scrutinizing the ways in which such a silencing process affects how the implementation of human rights norms and principles in present liberal-democratic indonesia. 2. reinforcing the past through law the meaning of memory has been discussed among scholars, writers, thinkers and even artists. in the literature, one founding question was how memories are created and how they shape identity and a sense of self. while many scholars position memory in the personal domain, émile durkheim (1995) describes how ancestral memory is transmitted across generations, which is shown by rituals and cultural symbols in the society. following law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 4 durkheim’s initial insight on ritualized memory as a distinctly social phenomenon, his student maurice halbwachs laid the groundwork for the study of memory as a collective phenomenon. halbwachs suggested that, it is in society that people normally acquire their memories. it is also in society that they recall, recognize, and localize their memories. … it is in this sense that there exists a collective memory and social frameworks for memory; it is to the degree that our individual thought places itself in these frameworks and participates in this memory that it is capable of the act of recollection. (1992, p. 38) halbwachs (1992) thus defines collective memory as the way people remember the past through the social framework of individual lives. collective memory, according to halbwachs (1992), is not given, it is socially constructed: “it is, of course, individuals who remember, not groups or institutions, but these individuals, being located in a specific group context, draw on that context to remember or recreate the past” (1992, p. 22). the relations between humans impact consciousness and the life of the mind, including the way they remember the past. people reconstruct and reinforce memory of past experiences by gathering with others who share the same experience in the past. memory is therefore always related to politics, as history is. it can penetrate society through constant narratives delivered by state institutions and other actors in power. halbwachs also examined the role of myths, narratives and symbolic systems in the transmission of memory, specifically through social structures such as the family, religion, and class relations. in this regard, halbwachs (1992) argued that these social structures could preserve and disseminate how people remember the past. scholars have studied social memory as a contributing factor in national identity building for instance by looking at the remembrance of mass trauma through holocaust memorialization, which is claimed that the institutionalization of holocaust memory in postwar european culture has been widely reproduced in monuments, museums, and memorials (jacobs, 2010). these media provide narratives of good and evil, victims and perpetrators, by suggesting the way society should remember and re-tell the tragedy of the jewish genocide and the violence of nazi terror. furthermore, scholars have theorized memory in different ways, ranging from the recollection of individual experience to “sedimented experience” which guides our actions in the world at an often-subconscious level. in a discussion on the remembrance of past atrocity, whigham (2017, p. 55) defines memory as interpretations of the past that impact the present. or, in huyssen’s (2003) words, memory is the way the past is present. memory can be seen as different from history; we, however, would suggest seeing history as a form of memory. history is not about the whole truth of what happened in the past. history is always a selection from the past that is captured and restored by those in power. it is only certain memories that gain a certain level of consensus in society. this is why in history books, there are always stories that left behind, specifically stories of the oppressed (whigham, 2017, 2022). harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 5 memory is about the past as it is perceived by an individual, meaning that memory is always subjective. jelin (2003) argues that rather than focusing on the subjectivity of memory, scholars need to analyze the process of memory making. memory is always the object of disputes, jelin argues, and it is important that everyone can actively participate in the process of its making. speaking about the actors involved in memory-making, jennifer jordan argues that the way people remember the past depends on the vanguard of public memory production whom she calls memorial entrepreneurs (whigham, 2017). that said, anyone can be memorial entrepreneur: we can think of mothers who lost their children during the 1998 riots in indonesia who now hold mourning ceremonies every thursday in front of the presidential palace, or a 1965 communist massacre survivor who engages in storytelling as part of a theatrical performance. arguably, the contestation of memory is not a socially bad thing. nevertheless, problems may arise when everyone believes that there is only one version of the past that society should remember. while halbwachs uses the term collective memory, james e. young (2016) prefers collected memory, which is defined as discrete memories that are gathered into common memorial spaces and assigned common meaning. following young, we can think of collected memory as memories shaped after a long trajectory of dispute, conflict, and struggle. young’s definition confirms that there is no single collected memory in society. hence, we should understand that memory is not a singular term, it is not permanent, and it changes across time and place. in a study on building memory to prevent mass atrocity, whigham (2017) claims that the non-permanence of memory may also allow for the possibility of changes on memory narratives—which in some instances are instrumentalized to perpetrate further violence or to create social division. law, on the other hand, is a powerful institution for the creation of collective memory as it involves highly effective rituals and is backed by coercive state apparatus. from a sociological perspective, law can be seen as an instrument of social control which aims to fulfill three main goals: solidarity, continuity, and conformity, each of which is implemented through force (treviño, 2019, pp. 39–40). with respect to solidarity, the repressive nature of law is expected to integrate the society which is seen divided due to conflict and social disorder. the second function of law, i.e., social continuity, relates to the maintenance, furtherance, and transmission of civilization. the last aim of law is to ensure conformity with society’s norms (treviño, 2019). that being the case, trials and verdicts produced by the court of law can function as memorializations, which direct the way in which people remember the past (halbwachs, 1992). as a social system, law is autonomous insofar as its force operates within a habitus, that is “the habitual, patterned ways of understanding, judging, and acting which arise from our particular position as members of one or several social “fields,” and from our particular trajectory in the social structure” (bourdieu, 1987, p. 811). in the present case, we can speak of a ‘juridical habitus’. consequently, the reproduction of memory by law differs distinctly from those memories produced by historians or in the worlds of politics, art, and religion. according to bourdieu, law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 6 when the legal norm makes the practical principles of the symbolically dominant style of living official, in a formally coherent set of official and (by definition) social rules, it tends authentically to inform the behavior of all social actors, beyond any differences in status and lifestyle. the universalization effect, which one could also term the normalization effect, functions to heighten the effect of social authority already exercised by the legitimate culture and by those who control it. it thereby complements the practical power of legal constraint. (1987, p. 846) this kind of normalization effect can be found in stare decisis doctrine and the practice of precedent in common law tradition (postema, 1991; baxter, 1998, p. 2007). outside this tradition, we can also find such normalization effect through law’s coordination and convention, in the sense that, argued postema, “regularities arising out of and reinforcing a system of mutual expectations and a commonly recognized need for coordinated act” (1982, p. 176). within this normalizing process, we can say that “law constructs and uses history to authorize itself and to justify its decision” (sarat and kearns, 2005, p. 3). the law affects collective memory first, directly when such a memory is activated in judicial decisions and legislative processes, and second, indirectly when it regulates what information can be collected or accessed. 3. history is present: the anticommunist memory in criminal law based on our theoretical framework, it is fair to claim at this point that an analysis of the application of anti-communism laws can shed a light on how law and legal institution shape collective memory in indonesia. here, the anti-communism laws can be seen as a set of legal instruments made by the state to counter deviance and to control the way people should remember the past. these laws are meant to prohibit a particular kind of act considered as a serious violation of value, or a set of values, central to the identity and integrity of the community and its members (meier, 2019). in its initial form, the law did not criminalize communism. historically, these laws were written during the military regime in 1966 in the form of a people’s representative assembly decree (tap xxv mpr) that prohibits the spread of communist ideology. the law however shows clear evidence on how state reinforced collective memory towards communism. the preamble of tap xxv mpr mentions that people who follow the idea of communism, particularly the pki, have in the history from the indonesian independence been found to have attempted to overthrow the power of the government of the republic of indonesia. the preamble makes a clear assertion that communists have attempted to overthrow the government for several times—while in fact there is only one incident, the madiun revolt in 1948, that can be assumed as such. during the transition period in 1999, the anti-communism provisions were incorporated into the indonesian criminal code through a parliamentary decision. the parliament passed law no 27/1999 which incorporates the dissemination of communism/ leninism/marxism as a crime into article 107 of the criminal code, along with some other acts categorized as crimes against state security. similar with tap xxv mpr, harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 7 the preamble states that communism/leninism/marxism ideology has been proved endangering the nation, thus it is important to incorporate such prohibition into the category of crimes against state security. at this point, we can identify a shift of rationale behind the promulgation of anticommunism law. that is, initially in 1966 the law was enacted in the midst of political contestation during the cold war (fahrurodji and zuhdi, 2023). meanwhile, during the transition in 1999, such criminalization appears to have become a social consensus in the country given the prolonged propaganda and repressive nature of the authoritarian regime since 1966. the criminalization of communism through laws continues up to the present posttransition indonesia. the anti-communism provisions remain intact when a new criminal code was enacted in january 2023. article 188 (1) of the new criminal code stipulated that any person who disseminate or develop communism/marxism/leninism or any other ideology contrary to pancasila in public either verbally or in written including the distribution of idea through any media, will be punished with imprisonment for maximum of four years. furthermore, article 188 (2) to (5) provide some aggravating factors, including the intention of the perpetrators and the impact of such actions. the content of article 188 of this new criminal code is clearly a continuation of previous norms, except that this article provides several exclusions toward education, teaching or any other knowledge generating activities. although it has been massively challenged by the public, the government insists on maintaining the provision because of its significance in avoiding encroachment on state security that once happened in 1965 (badan pembinaan hukum nasional, 2018, p. 211). this situation somehow indicates the state’s attempt to maintain the dominant narrative that frames pki as the scapegoat behind the attempted coup in 1965. the creation of memory in the country can be juxtaposed with the sources of criminalization through analysis of criminal cases decided by the courts in recent years. specifically, criminal cases selected in this study show that the anti-communism laws were enforced against a wide spectrum of events, such as expressions in social media, defamation, and public demonstration. a thorough examination on the case narrative and the court’s legal opinion could give us an understanding on how memory of the past is being enforced through the application of the laws. one case related to the criminalization of expression is andi bajang case. andi bajang, a laborer from kuningan, west java, was prosecuted for twelve posts on his facebook account in may 2017 (case no. 140/pid.b/2017/pn kng). one of the pictures shows himself holding an image of palu dan arit (hammer and sickle)—widely known as the symbol of the indonesian communist party (pki)—while beside him was the same symbol printed on a flag. below the image was a caption: “the laborers stand with the peasants, the impoverished, and the poor”. the rest of the posts are several images of books entitled indonesian communism under sukarno and ideologi dan politik 19591965, both written by rex mortimer, and the communist collapse in indonesia by arnold c. brackman, the author of indonesian communism: a history. additionally, he posted an image of three soldiers captioned “aku bangga jadi komunis” (i am proud law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 8 to be a communist) and another nine pictures of hammer and sickle next to the state’s symbol of pancasila. the defendant, bajang, also wrote a post on the subject of nasakom (abbreviation of nationalism, religion, and communism), which is president soekarno’s concept that consolidates all religious and political groups into one ideological strand. the post read that, “if only nasakom was maintained in indonesia, it is certain that indonesia would have allies, such as russia, china, and the (capitalist) allied-states.” bajang was then accused of having violated article 107a of the criminal code and the 1966 mpr decree on the pki dissolution and the prohibition on the dissemination of communist, leninist/ marxist ideology. article 107a encapsulates that “anyone who unlawfully in public, by oral or written means and/or through any media, spreads or develops the teachings of communism/marxism-leninism in all forms and embodiments, shall be sentenced to a maximum of twelve years imprisonment.” there are two aspects of memory in this case. the first is concerned with the stigmatization of communism. the defense attorney implied that the defendant has nothing to do with communism and tried to challenge the applicability of this stigma by arguing that it is normal for laborers to use hammer and sickle as their daily working instruments. the court, however, maintained that the defendant had misused them as symbols of communism. instead of analyzing the meaning of these symbols in a particular context, and how this picture would affect the reader’s opinion and understanding about communism, the court asserted that ‘hammer and sickle’ symbolizes pki and that therefore the picture itself should be seen as a means to spread communism. with respect to the books, the judges foreclosed any discussion on their substance, that is, whether these books contained communism teachings. by contrast, the court simply judged the books literally by their covers (and their titles). in its application of the anti-communist law, the court mainly based its consideration on the historical fact that pki used hammer and sickle as its symbol. this shows that there is an absence of substantial reasoning on what the meaning of ‘communism teaching’ is. under the prolonged stigmatization against communists, historical knowledge as a basis for this verdict must be seen as an important issue. the new order regime actively generated this historical knowledge by establishing anti-communism law, promulgating propaganda through media, museum and the most significant was through movies. heryanto (2012), who did a research on the new order propaganda, noted that the government obliged the citizen to watch a state-produced movie ‘the treachery of pki’ (penghianatan g30s/pki) on every september 30th. in the movie, the director presented the pki’s attributes such as: hammer and sickle sign, songs and books. these attributes were then associated with the cruelty of pki, that is, how pki members slaughtered the generals and threw them into a well. as a consequence, these symbolic attributes have been rooted in the mind of indonesians as something horrifying for a long period of time. the government even condemned any film makers who dare to create alternative movies (heryanto, 1999, 2012). this situation provides a solid basis for recent stigmatization and remains captured in some legal decision described above. the second aspect is the shaping of memory through witness’ statements (thorne, 2023). in bajang, there is an attempt by a witness to draw a link between the crime accused harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 9 and a historical fact that the defendant’s grandmother was a former pki member. although the court did not consider this testimony in its opinion, such evidence nevertheless demonstrates the ways in which the memory of communism works through the voice of witness in court proceedings—including expert witness. this is a clear indication that many still believe that ex-pki members are evil and that they could ‘transmit’ their evilness to their descendants and relatives. the court decided that the defendant had violated the anti-communism law and convicted him to one year and nine months imprisonment. the court’s verdict somehow confirms and preserves people’s stigmatization of ex-political prisoners. in fact, this criminal trial fails to be an inclusive space for memory curation as many discourses were left uncontested, favoring instead the stigmatization of a particular symbol. the court likely continues to reproduce stigmatization of phrases, such as ‘pki’, ‘palu dan arit’ (hammer and sickle), and the ‘red flag’, and construing them as hostility to the state ideology of pancasila. the judges treated communist symbols as society’s taboos, conforming themselves to the dominant narrative built by the previous authoritarian regime. or, to put it in halbwachs’ term, the trial has become a ‘memorialization’ where people were forced to remember past events in a certain way. the image of pki as a violent, immoral, and threatening group is also apparent in defamation cases. suwignya from trenggalek, east java, was charged for calling his neighbor, suharyo, “a pki!” (case no. 44/pid.sus/2015/pn.trk). feeling insulted, suharyo filed a criminal report to the police. in its legal reasoning, the court declared that this act was to be considered defamatory, since the pki was perceived as “immoral and a threat, therefore being called a member of the pki would cause people to feel insulted.” the judges considered the word ‘communist’ is equal to “slut” or “dog” by arguing that, “... it is hard for the government to accept [the word of] pki, as well as dog and slut, which are perceived as despicable and dishonorable by the society. [in indonesian: pki sangat sulit diterima oleh pemerintah indonesia begitu juga dengan sebutan asu adalah kata-kata makian dan lonte adalah orang yang dipandang hina di masyarakat]” this argument, however, came from an expert witness presented by the prosecutor who opined that the word ‘pki’ implies an immoral character that might violate someone’s dignity. the defendant, suwignya, was then sentenced to three months of imprisonment. similar reasoning can also be found in one of the military court’s criminal proceedings (case no. put/04-k/bdg/pmt-ii/ad/vi/2010) related to defamation. by saying “communist lackeys [antek-antek komunis]’’ toward a certain individual, the military court declared a defendant, who was previously an active army member, had violated article 301 of the criminal code on defamation and imposed him five months in prison. the complexity of this so-called judicialization of communist stigma is also evident in budi pego case (case no. 559/pid.b/2017/pn.byw). heri budiawan, under the alias budi pego, was an activist who for environmental reasons led a public demonstration in 2017 against the opening of a gold mine company in banyuwangi, east java. while the law of environmental protection clearly prohibits any criminal suits against any individuals who protesting in defense of the right to a good and healthy environment, the court applied the anti-communism laws instead, and convicted budi pego to ten months law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 10 prison sentence for having spread communism teachings during the public demonstration. also, in this case the court grounded its decision simply on a video that captured a hammer and sickle symbol in a public demonstration. several scholars have conducted a legal examination of the decision and found several legal flaws, especially regarding the burden of proof during the case proceeding (wiratraman, 2019). criminal law by its own ritual has the legitimacy to distinguish the bad from the good in society. it has the power to enforce who should be punished, why, and how. current criminal trials in indonesia enforce the idea that communist ideology is intertwined with violent, cruel, and rebel behavior. moreover, almost all criminal case-laws examined in this article frame communist parties as forbidden groups/organizations, atheist, a threat to national/social order and enemies of the people. the way communism is perceived in criminal trials impacts the way people remember violence against pki members after 1965. as a consequence, historical narratives created during the criminal trials have re-produced a justification of the banning of pki, communist ideology, and any symbols related to it. by criminalizing the spread of communism doctrines, the court justifies the historical violence on ideological basis. this situation indicates that certain aspects of memory are being preserved and some are excluded from the indonesians’ collective memory. the ritual embodied in criminal trials has become “communicative strategies of erasure that work toward silencing the experiences of subaltern groups” (pitaloka and dutta, 2019, p. 336). at this point, legal practices in criminal law imply a kind of state’s denial. in that sense, cohen (2001, p. 5) defines denial as “an unconscious defense mechanism for coping with guilt, anxiety and other disturbing emotions aroused by reality.” the state of denial admittedly lies in the grey area between consciousness and unconsciousness (lacey, 2007). based on this definition, cohen (2001) categorized denial into three forms: literal, interpretative and implicatory denial. literal denial implies that the knowledge or the raw facts are blatantly denied: “nothing happened,” “there was no massacre.” with interpretive denial, the raw facts are not denied but instead are attributed a different meaning, such as population exchange or collateral damage (and not a massacre) (moon, 2007, pp. 315–316). implicatory denial refers to the denial or the minimization of its significance or of its implications, “these killings have nothing to do with me,” “why should i risk my life to intervene” or “it is worse elsewhere” (cohen, 2001; parent, 2016). since there is no explicit refutation of the communist massacre declared by the court, it is difficult to see these cases as a literal denial. furthermore, any attempts to rationalize or justify past atrocity are hardly found in the legal arguments. at the same time, the government has shown concerns to the 1965 tragedy by initiating a national symposium of 1965 massacre in 2016 (mcgregor and setiawan, 2019). these findings evidently imply the absence of implicatory denial. as such, it is plausible to say that the anti-communism criminal trials led to what cohen conceptualizes as interpretive denial, as it is widely and publicly known that there were thousands of people killed and arrested due to their connection to the pki. that said, the court’s argument in applying the anticommunist laws can be seen as an attempt to claim that the mass violence against the pki members in 1965/66 and their family was not a genocide. instead, it is seen as a form of protection against threat to national security. harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 11 4. beyond criminal law: the spillover of criminalizing communism beyond criminal law proceeding, the reinforcement of stigma of communism can also be found in administrative claims and civil suits. these cases display what we call ‘spillover of memory’ from criminal law to other fields of law. such a spillover evidently forms a broader area implicated by the anti-communism law. by introducing the concept of implicated area, we later claim that criminal law has a legitimating force towards other fields of law due its coercive nature in imposing punishment on individuals. one of the implicated areas of the anti-communism law can be seen in the attorney general clearing house case. the case was brought to the administration court (pengadilan tata usaha negara) in 2010 by institut sejarah sosial indonesia (the indonesian institute of social history) that challenging the attorney general office’s (ago) decision on book banning. the dispute deals with the ago’s decision to ban dalih pembunuhan massal gerakan 30 september dan kudeta suharto, which was written by john roosa and published by the institute.5 the ago declared that the book itself was a provocation against the indonesian government’s policy as its author argues that the army has conspired with the united states government to plan the coup against soekarno, who then put the blame on pki. from a strictly legal sense, the ago also argued that by referring to the coup attempt as the ‘g-30-s’, without ‘/pki’ following the phrase, the book has violated the people’s assembly decree xxv/1966 that inscribes the 1965 tragedy as “g-30-s/pki”—which is basically a propagation of the idea that pki was the responsible actor. against this argument, the claimant grounded their argument on human rights norms under the constitution, national laws, and other ratified international law instruments. moreover, the claimant brought forth a prominent indonesian historian, thamrin a. tomagola, who argued that “if an event is seen from the historical point of view there will be different points of view. this [the history of the coup attempt] may be disclosed by anyone and there are differing ways in which an event is interpreted, which cannot be valued or judged except through expert hearings. these expert opinions are, however, works that should not be judged by other institutions.” however, as this is an administrative dispute, the court mainly decided the case on the basis of general principles of proper administration, namely: legal certainty, state administration order, public interest, transparency, proportionality, professionality, and accountability. (bedner and wiratraman, 2019) while the court explicitly made reference to the freedom of expression and thought, they elaborate public order as the basis to delimit that freedom. in interpreting public order, the court refers to the presidential decree 4/1963 that ruled public order as instances “related to the foundations of social order in a certain period of time, directing people’s belief towards the revolution, national leadership, and socialism.” under this regulation, argued the court, roosa’s book hence should be interpreted as a form of writing that is “... intolerable to read by the people, and closely 5 in 2000, the book was first published by the university of wisconsin press under the title pretext for mass murder: the september 30th movement and soeharto’s coup d’etat. law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 12 related to society’s legal situation in a particular period, to the events which happened to the people and the state, to indonesia’s personality.” rather than attempting to clarify how the writing materials in casu would infringe public order, the court simply left the issue to the ago’s authority to take substantive measures. furthermore, the court appears to have arbitrarily interpreted the state’s authority to infringe upon individuals’ freedom of thought, namely on the basis of a “potential or a great likelihood” of public disorder. finally, the court declared valid the ago’s decision to ban roosa’s book on the basis that the ago had procedurally invited all relevant stakeholders for a dialogue during the clearing house meeting. important to note at this point that the court’s approach to public order manifests the dominance of a particular narrative about communism in the country. the court’s reasoning in administrative dispute and civil suit is to a certain extent in line with the kind of reasoning found in criminal law cases—albeit that a few occasions yield different outcomes. in the field of civil law, there are at least two types of cases that can be traced back to the criminalization of communism. first is civil cases about ex-communists’ economic rights (145/g/2006/ptun.jkt; 73/g/2007/ptun-bdg). reading these cases shows that the court has been lenient in interpreting the historical event, despite the prolonged disputable ‘truest’ history about the 1965 communist purge. the wimanjaya case (case no. 34/pdt.g/ 2014/pn.jkt.sel.; 605/pdt/2015/pt.dki.; 828 k/pdt/2017) is one of the best examples of civil suit in which the economic violence of the past was acknowledged in legal proceeding by both the government and the court. wimanjaya, an author whose books were banned by the repressive government in 1990s, claimed for financial reparations from the government in 2015. based on evidence provided by both parties, i.e., the plaintiff and the government, the trial court argued that the book banning was “backed by the authority’s subjective and arbitrary power to uphold the political situation and social order.” the trial court furthermore manifested that the banning should be considered “an ‘abuse of power’ or a misuse of authority by the government (onrechtmatige overheidsdaad).” while the trial court awarded wimanjaya compensation up to one billion rupiahs, the appellate and cassation courts have unfortunately overturned this decision later in 2017. the second type of cases that are implicated by the anti-communism criminalization deals with land extortion and expulsion (74/pdt.g/2012/pn.kdi), which involving thirtyfour claimants against a plantation company and local land registrar. in this land possession dispute, an attempt to acknowledge the plaintiff’s historical argument can be found in the court’s consideration of facts. the court depicted that “battalion 521 [of the army] gathered some farmers from two villages, 94 farmers from durenan village and 120 from balarejo village, and commanded the farmers to move to a certain location that had been prepared, tegalrejo village, while issuing a threat that if they refused to be relocated they would be regarded as members of barisan tani indonesia [the pki’s farmer organization] or as members of the pki, and that they would be killed” (p.57) nonetheless, the court eventually rejected the claim because the plaintiff had failed to include the army as one of the defendants. apart from the procedural issue, in this non-criminal case, as well as in some other comparable instances, the word ‘communism’ appeared to be less taboo than in criminal cases, and the court appears to be willing to consider an alternative story rather than enforcing the dominant narrative against communism. harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 13 our further implicated area is reflected in constitutional review case. in this area, certain legal arguments provided by the constitutional court (cc) point towards the fact that outside criminal law there is sometimes more room for acknowledging communist’s victimization. as a product of the reform era, the cc has a significant role in shaping indonesia’s legal system, particularly through interpreting the constitutionality of laws (faiz, 2016; hendrianto, 2020; pratiwi, 2021). to give an example, during the judicial review of the local election law in 2003 (011-017/puu-i/2003), the cc was presented a constitutional challenge delivered by persons who were formerly affiliated with pki. they claimed that the prohibition against former pki affiliated persons to run candidate in any local elections, as enshrined under the 2003 local election law, is contrary to the constitution. in considering the case, the cc applied human rights norms as the basis to assess the constitutional validity of this prohibition, declaring that all individuals should legally be protected against discrimination and be ensured equality before the law. the cc emphasized that individuals who are the former members of pki or any mass organization affiliated with pki, “shall be treated equally with other citizens without discrimination” (p.36). the cc’s rationale was that the pki members’ involvement in the historical 1965 coup attempt had been legally resolved through criminal proceedings, thus, the court said, “it is an obstruction of justice and the rule of law if [pki affiliated] individuals who were not involved in the coup attempt were held accountable for it and prohibiting them from running for candidate in a local election” (p.37). rather than exclusively focusing on the issue of discrimination, however, the cc turned out to be invested in enforcing the criminalization of communists by stating that “the involvement of the indonesian communist party in the g.30.s/1965 case” was “undoubtedly a fact for most indonesians.” the cc declared that the prohibition of ex-pki members to participate in elections was unconstitutional. in this respect, the cc made two significant legal arguments. first is that the people’s representative decree xxv/1966 should only be invoked with respect to (i) the prohibition of the pki; and (ii) the prohibition to spread communist or marxistleninist doctrine. the cc opined that the decree had nothing to do with any revocations or restrictions of citizens’ active and passive electoral rights, including those of ex-members of pki. second is that the cc decided that the discriminative prohibition against ex-pki members enshrined under the 2003 election law “should no longer be seen as relevant in light of the nation’s commitment to reconciliation, a more democratic and just future.” furthermore, a rather progressive interpretation of law could also be found in the supreme court’s judicial review of presidential decision 28/1975 (33p/hum/2011). originally, this presidential decision enabled the state to label individuals who were allegedly involved in the g.30.s/pki as golongan c (literally as ‘c group’). in practice, individuals with this label were denied basic economic rights, such as a proper job, salary and pension rights. in its decision, the supreme court decided that the 1975 presidential decision was contrary to human rights norms, specifically article 26 of the international covenant on civil and political rights, ruling that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 14 other status.” by declaring this presidential decision void, the supreme court engaged in an act of reparative remembrance, which had the potential of leading to a new mnemonic narrative in the public sphere (rigney, 2012, p. 253). to be more specific, the supreme court evidently interpreted the application of anti-communism laws from a human rights perspective, so that the people affected by these laws may obtain sufficient remedy from the state. that being the case, the softening judicial narratives addressed in this section are contingent upon the ways in which collective memories canvassed in criminal trials. a careful reading of the legal cases above clearly delineates that the critical problem of the anti-communism laws (and their enforcement) is that their objective is to punish actors and certain ways of being rather than the act itself. in this sense, criminal law, as one may refer also to the criminalization of holocaust denial, has become “a bearer of messages rather that a warden of interest deserving protection” (fronza, 2018, p. 159). historically, the anti-communism laws were initiated to serve a political goal, namely the criminalization of communist ideology. meanwhile, in the current post-reform era and after decades of propaganda by the military dictatorship, it is likely that there is a kind of social consensus to put an end to communism in the country. it seems that, in our given cases, the memory of past mass atrocity was produced “on behalf of one’s own political collectivity [and] might serve as a last resort for the symbolic-political integration of [a] highly differentiated... societ[y]” (langenohl, 2008). the laws made past atrocity unspoken and this situation turns out to becoming a symbolic integration of the society, a convergence of behavior. but this sort of integration of indonesian society—through a shared rejection and criminalization of communism—has come with the cost of repeated social, political and legal exclusions of (alleged) communists and their families. similar with the case of any other modern societies, the indonesian national identity is partly built on historical trauma, leading the indonesians to a continuous repetition of victimization of the same historically disenfranchised groups. that being the case, the anti-communist laws can be read as mnemonic responses to the traumatic period of the mid-1960s, and it is through their enforcement and reproduction of particular memories that the violence of 1966/66 persists in the country today. 5. remembering the future: historical silence in the age of human rights in today’s age of human rights protection, the application of anti-communist laws pursues latent goals over the laws’ overt function.6 in this case, the overt function of the anti-communism laws aims to secure national identity and public order, while its latent function is inclined to control the way people perceive and remember communism and the mass atrocities that happened in the past. the laws become a tool to reinforce 6 fronza (2018) defines overt function as what law explicitly declare. meanwhile latent function define as what law is actually intended. harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 15 a social consensus with respect to the public memory of past events (whigham, 2022). this placement of political ends before legislation and trials creates, as fronza correctly suggests, “negative repercussions for criminal law and its general function to uphold legality and the harm principle” (2018, p. 160). in line with this situation, the recent enactment of the new indonesian criminal code also builds on collective memory that we have sketched above. the legislators have kept more or less the same formulations of the anti-communism laws as they currently exist. in indonesia, the term “legislator” indicates both the parliament and the executive, as the two share the power to legislate. the constitution clearly states that “the laws are to be created by the parliament along with the president”, though the final decision to enact laws still is a parliamentary decision (butt and lindsey, 2018, pp. 43–44). this recent enactment of the criminal code accounts for the reproduction of collective memories through upholding the criminalization of communism. both inside and outside indonesia’s legislative process, the country has been involved in a power struggle in which the military plays a significant role (diprose, mcrae and hadiz, 2019; laksmana, 2019). in particular, the army has long pushed and preserved memories of communist evilness. these memories are not merely part of the army’s internal narrative and doctrine, but they are also communicated to the outside world through monuments, recruitment and marriage policy, and educational and training modules (munsi, 2016). as it is the case, restricting memories and criminalizing communism creates silences in today’s indonesian society. through the creation and implementation of the laws discussed above, the state affirms its official truth and cements “a definitive construction of facts” (fronza, 2018). conceptually, silencing is considered to be a cultural tool to silence memory of past wrongs. according to pasupathi & mclean (2010, p. 86), social silencing “can be a means through which individuals within a group become aligned in their views of reality.” the process of silencing done by the state after the 1965 violence has marginalized certain groups in society for having different memories of the events. these groups mostly consist of ex-members of the pki and its affiliate organizations (e.g., gerwani, bti, cgmi, lekra) as well as others who were put in jail and tortured without trial. many of these groups are forced to keep their memory silent because of social stigma and the repression of their activities. on the other hand, silence, according to labanyi, “offers the possibility of reflecting on what is remembered, and memories are transmitted not only through words but also through the body and material culture” (2009, p. 28). persecution and intimidation by particular groups, especially some certain religious hardliners, compelled the victims to find more secure ways to maintain their memory (putri, 2018). these victim groups gathered and held their own memorializations of past dark experiences (heryanto, 1999; hatley, 2009; wahyuningroem, 2013; lis, 2018). some collaborations between survivors, ngos, and local governments successfully conveyed clear messages to the wider public about the need to understand victims’ perspectives as well as calls for solidarity (wahyuningroem, 2018). one example is formed by a silent protest called kamisan to commemorate the victims of enforced disappearance in the past (wahyuningroem, 2019; irfani, muharam and sunarso, 2022). inspired by the mothers law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 16 of plaza de mayo in argentina, the victims’ families gather and hold a vigil before the president’s palace every thursday since 2007. in palu, a city at the center of the island of sulawesi, a collaborative effort between an ngo and local government resulted in an official apology on the 1965 communist purge in 2016, which was expressed by the mayor. furthermore, a theatre play performed by women survivors in yogyakarta in 2017 has focused on their personal experience of imprisonment, on how families lost their relatives without knowing whether they were still alive, and on how these women struggling to survive after being released from prison. these messages resonate amongst members of the audience who were either bystanders of the violence in their communities or indirectly affected by the violence. all these initiatives share a number of characteristics. by adopting a liberal human rights framework to address their narratives and interests, these groups have shown that they are no longer divided based on the cold war ideological lines as it was in the past (wahyoeningrum, 2013). these groups asked the government to see them as human beings, not as members of political parties who hold the same rights as others. such activism is dynamic and evolves over time. currently, we are seeing the emergence of the so-called ‘carrier groups’ of collective memories which operate through new media, civil society organizations, and victim or survivor groups. following young’s argument, there is no single collected memory—it is always contested—and that these groups have become “memorial entrepreneurs”, struggling to preserve their memory of past atrocity in the midst of unfair contestation. through the work of these groups, contemporary human rights issues are connected to historical injustices as today’s structural injustice the survivors continue to face puts them as one of the marginalized groups in society (mcgregor, 2013). in the current legal development in the country, human rights appear to be an emerging language within the court of law’s arguments. at this point, a liberal framework of human rights has become a symbolic—yet contested—power within the existing dominant narratives of historical injustice. while the justification for restricting certain ways of being has been the protection of public order and public moral, human rights principles play an increasingly large role in reconfiguring such justificatory practices. the shift towards human rights activism is a clear sign of the growing significance of liberalism and human rights discourse in the country. the future collective memory about historical injustice of the 1965/66 communist purge will largely be determined by this social activism, because it has the potential of amplifying alternative memories currently suppressed by the state. while the law as a system is, borrowing from the autopoietic lens (luhmann, 2004), cognitively open to its environment—including to social and political influences—human rights have the potential to become a shared value and language amongst legal related institutions, specifically when dealing with past violence. as mcnaughton put it, “the construction of a counter-power to the forces that were unleashed through the mass violence of 1965... demands the mobilization of memory, that is, the individual and collective process of putting the shards of memory back together to create something of a social whole” (2015, p. 304). harison citrawan, ganesh cintika putri the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 17 6. conclusion this article has argued that the nexus between law and memory sheds a light on the potential transformative character of law in a society, that is, transforming from a history of unacknowledged violence to the one in which violence is being remembered and contested in the courts of law. by examining indonesia’s anti-communism laws, this article concludes that the state’s criminalization of certain ways of being (i.e., speech or expressions related to communism) has enabled the court of law to become one of the factories of memory in the country (amongst, for instance, museums, monuments, mass media, etc.). through the power of ritual, the court manufactures collective memory and thereby authoritatively declares which history the society must remember. several judicial practices addressed in this article, moreover, made clear that the laws have led to the process of social silencing, especially upon the victims of the 1965/66 communist purge. currently, these silencing processes are increasingly colliding with the current post-transition liberal human rights activism in the country. the force of human rights norms and principles have subsequently created a new social identity in the face of the repressive policy against the specter of communism. the effect is twofold. it summons the need for the country, on the one hand, to reconfigure the protection of public consensus about history, and, on the other hand, to reaffirm the state’s commitment to resolving past atrocities. that being the case, it is fair to say that the country is in the midst of transformative justice process. in this context, law ought to be a transformative instrument by providing a communicative space between subjects for the contestation of memory (savelsberg and mcelrath, 2014, p. 267). law and legal system should not be seen exclusively as an instrument to fulfill the economic and political rights of the victim/survivor. it should not be seen merely as a solution to find the truth of past violence. yet, the law must be adequate to become a space that allows for inter-memory discourse—an area that is worth to study further. in order to fulfil its role of bringing justice to the society, law and legal system must be able to adequately remember past injustice in order to generate a history for the present and to imagine a just future (postema, 2004). statement of conflict interest the authors whose names are listed above certify that they have no affiliations with or involvement in any organization or entity with any financial interest (such as honoraria; educational grants; participation in speakers’ bureaus; membership, employment, consultancies, stock ownership, or other equity interest; and expert testimony or patent-licensing arrangements), or non-financial interest (such as personal or professional relationships, affiliations, knowledge or beliefs) in the subject matter or materials discussed in this manuscript. statement of funding this research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors. law, memory, and silence: the case of anti-communism laws in indonesia the age of human rights journal, 22 (june 2024), e8021 issn: 2340-9592 doi: 10.17561/tahrj.v22.8021 18 acknowledgement the authors would like to thank paul bijl and ken setiawan for their insightful comments, suggestions, and revisions. the earlier draft of this article was presented at the fourth international university symposium on humanities and arts (universitas indonesia); we appreciate all comments and suggestions during the symposium. we also would like to thank two anonymous reviewers and tahrj editor. all errors remain ours. references arthur, p. 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(2019) ‘penegakan hukum dan penghormatan hak asasi manusia’, in imran and f.r. hidayati (eds) bunga rampai memperkuat peradaban hukum dan ketatanegaraan indonesia. jakarta: sekretariat jenderal komisi yudisial republik indonesia, p. 125. young, j.e. (2016) the stages of memory: reflections on memorial art, loss, and the spaces between. university of massachusetts press. zurbuchen, m.s. (2002) ‘history, memory, and the “1965 incident” in indonesia’, 2asian survey, 42(4), pp. 564–581. received: 11th may 2023 accepted: 27th august 2023 https://doi.org/10.1177/186810341303200306. https://doi.org/10.1177/186810341303200306. https://doi.org/10.4324/9780429440243. law, memory, and silence: the case of anti-communism laws in indonesia abstract 1. introduction 2. reinforcing the past through law 3. history is present: the anticommunist memory in criminal law 4. beyond criminal law: the spillover of criminalizing communism 5. remembering the future: historical silence in the age of human rights 6. conclusion statement of conflict interest statement of funding acknowledgement references epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 1 epistemic injustice, the right to the truth and reparations in cases of sexual violence rita del pilar zafra ramos1 abstract: this article seeks to identify the importance of the concept of “epistemic injustice”, created by miranda fricker, for the reparation of the right to the truth in cases of sexual violence. to this end, it conducts an analysis on the notion of epistemic injustice, (hermeneutical and testimonial); on the epistemic dimension of sexual violence; on the current content and scope of the right to the truth; and on the way said right should be repaired. finally, it provides guidelines for reparations of the right to the truth in cases of sexual violence based on the different aspects of epistemic injustice that are experienced. keywords: international human rights law, sexual violence, epistemic injustice, right to the truth, reparations. 1. introduction currently, the concept of “epistemic injustice” has become very prominent in the field of justice studies2, but its presence has not been consolidated in the field of human rights. “epistemic injustice”, a concept created by miranda fricker (fricker, 2007) can be understood as “a distinctive class of wrongs, namely those in which someone is ingenuously downgraded and/or disadvantaged in respect of their status as an epistemic subject.” (fricker, 2017, p. 53). since its conception, it has enabled “the construction of a bridge between knowledge and justice” (bustos arellano, 2022, p. 291, translation by the author of the present article). even if, from its very beginning, fricker made use of sexual violence related examples to develop said concept, there hasn’t been a specific analysis of the right to the truth and reparations in cases of sexual violence based on epistemic injustice. this analysis is greatly missed in the light of the interest the right to the truth has garnered since its identification, as well as in relation toa the studies on sexual violence against women within human rights. sexual violence causes physical and psychological harm, but also epistemic harm. bringing “epistemic injustice” into the analysis of the right to truth, and specifically regarding its reparation, can satisfy the victims of sexual violence’ need for justice in a manner in which current reparations don’t seem to do. 1 law professor at the pontificia universidad católica del perú. e-mail: rita.zafra@pucp.edu.pe 2 “second, and relatedly, fricker’s book provided a tremendous impetus for those working in epistemology to speak to issues in fields that had previously been at a great remove from the theory of knowledge, at least as traditionally practiced – fields such as political and social philosophy, ethics, feminism, and critical race theory.” (goldberg, 2017, p. 213). https://doi.org/10.17561/tahrj.v24.9250 mailto:rita.zafra@pucp.edu.pe epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 2 taking this into consideration, this article seeks to identify the importance of the concept of “epistemic injustice” for reparations of the right to the truth in cases of sexual violence, with special regard to cases of sexual violence against women. although the present article will analyze the right to the truth and reparations in general, special attention will be paid to the inter-american human rights system (iahrs). in this line, we consider it essential to ask: “what can the concept of ‘epistemic injustice’ contribute to reparations in the case of sexual violence?” “how should these cases be repaired?”. to this end, we will analyze international legal instruments and jurisprudence regarding the right to truth, reparation in cases of sexual violence and reparations in cases of violations of the right to truth. in the first place, we will analyze what is understood by “epistemic injustice” as it was created by fricker and developed later on by other authors, especially in relation to sexual violence. later, we will analyze the relationship between the right to the truth and sexual violence. finally, we will identify in which manner the concept of epistemic injustice can impact reparations of the right to the truth in cases of sexual violence. 2. what is epistemic injustice? as it was mentioned beforehand, miranda fricker created the concept of “epistemic injustice” in 2007, in her book “epistemic injustice. power and the ethics of knowing”. it’s worth noting that, although fricker is the initial creator of this concept, there are other concepts related to knowledge and power, such as epistemic violence3, epistemic dehumanization4, epistemic oppression5, epistemicide6, among others. this article will focus on the notion of “epistemic injustice”, although it recognizes the importance of these other related concepts. in this line, the concept of epistemic injustice is especially relevant in the field of justice studies because “it proposes a hybrid an interrelated definition between epistemology and politics” (garcía álvarez, 2019, p. 159, translation by the author of the present article), and “draws together three branches of philosophy – political philosophy, ethics, and epistemology” (pohlhaus, 2017, p. 13). as it has been stated before by feminist (fricker, 2007, p. 2; tuana, 2017, pp. 125-126; pitts, 2017, pp. 149–157) and decolonial studies (tuana, 2017, p. 129), and even since foucault, as it is mentioned by fricker herself (fricker, 2007, pp. 10–13), knowledge is political. in this same line, knowledge about sexual violence and how it is told is also political, and it is only from this perspective that its true importance can be understood. 3 (spivak, gayatri chakravorty, 2003, pp. 297–364). 4 (bustos arellano, 2022, pp. 289–310). 5 (fricker, 1999, pp. 191–210). 6 (latova santamaría, 2023, pp. 314–342). https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 3 therefore, when we talk about epistemic injustice related to sexual violence we are not referring only to the knowledge of the world, but also to the knowledge of ourselves and our experiences, and about the way we tell them (fricker, 2007, p. 168). in what fricker describes as part of a global pattern (museo nacional de colombia, 2020, 22:46) women are “undermined and insulted in her capacity as a knower, as a rational being who has some knowledge to give” (museo nacional de colombia, 2020, 23:57). fricker classifies the following instances of “epistemic injustice”: hermeneutical and testimonial injustice (fricker, 2007, p. 1). the first one consists of the lack of conceptual tools for a person to name a phenomenon, and the second one to cases in which a person is awarded lesser credibility to the one which they are owed because of prejudice against their identity (fricker, 2007, p. 168). we argue that both are fundamental to understand reparations of the right to the truth. in this line, the first one is understood as “the injustice of having some significant area of one’s social experience obscured from collective understanding owing to a structural identity prejudice in the collective hermeneutical resource.” (fricker, 2007, p. 155). the examples mentioned by fricker are without a doubt based on female experiences in patriarchal societies, specifically, experiences on different forms of sexual violence: “sexual harassment as flirting, rape in marriage as non-rape, post-natal depression as hysteria, reluctance to work family-unfriendly hours as unprofessionalism, and so on” (fricker, 2007, p. 155). this allows for the concept of epistemic injustice to be particularly apt to analyze cases of sexual and gender violence against women, because it was these experiences that inspired its creation. in regards to testimonial injustice, the key concept identified by fricker is “identity power” which is “power that depends in some significant degree upon such shared imaginative conceptions of social identity” (fricker, 2007, p. 14). this develops into a “credibility deficit” for those people who don’t have it (fricker, 2007, p. 17). therefore, there are as many forms of testimonial injustice as forms of given testimony (gonzález de requena farré, 2015, p. 53). she also mentions that some cases of testimonial injustice are systematic, in cases where the identify that causes the epistemic injustice also causes harm in other fields, such as the social, educational and so on (fricker, 2007, p. 27). this concept is linked to the concept of “epistemic trust”, which, according to garcía álvarez, “is divided into three levels: confidence in the defended believe, confidence on the justification of the believe and confidence on the intellectual abilities of the person who spurs it.” (garcía álvarez, 2019, pp. 161–162, translation by the author of the present article). it should be highlighted, at this point, that fricker gives a central role to the lack of intentionality as a constitutive element of testimonial epistemic injustice (fricker, 2017 2021, p. 54). this “involuntariness” is marked by the structural nature of the credibility https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 4 deficit created by the prejudice7 (fricker, 2017, p. 54). in the same line, the author argues that hermeneutical injustice has a primarily structural nature (fricker, 2007, p. 159). fricker mentions that testimonial epistemic injustice can act in both an active and passive manner (fricker, 2007, p. 9). in regards to its passive form, this could lead to the person who experiences a credibility deficit preemptively silencing themselves (fricker, 2007, p. 15). the impact could be so great people who experience credibility deficits can develop an inferiority complex, because of a self-image that is not adjusted to their real capacity as epistemic agents (medina, 2013, p. 28). within the scope of this article, it is important to highlight the self-conceptualization as a person with little value as an epistemic agent can prevent someone from presenting a testimony of sexual violence (bustos arellano, 2022, p. 295). taking into consideration that many campaigns against different forms of sexual violence against women focus on the need to present complaints, this self-conception as an epistemic agent is critical. for example, people who experience these credibility deficits based on prejudices can choose to act, because of necessity, embracing said stereotypes in order to ensure that the harms don’t worsen (posey, 2021, p. xii)8. on this particular matter, medina argues: oppressed subjects frequently find themselves forced to acquire deep familiarity with certain domains, developing forms of expertise than no one else has. they often need to know more than they are supposed to— sometimes more than their oppressors. they are often forced to anticipate outcomes and moves in the social game; and sometimes they are also forced to hide this knowledge and render it invisible (medina, 2013, p. 44) thus, it is necessary not only to understand what mechanisms act in the cases where women decide not to report or file a complaint in cases of sexual violence, but to also understand those cases in which they do, but present them in a particular way because of their credibility deficit in society. as medina argues, this too is an action these people undertake that people with a better epistemic position don’t have to. finally, it is worth noting that, even if “epistemic injustice” denotes an epistemic phenomenon, its effects can bleed into other fields, such as the economic, social and even legal ones (jerade, 2022, pp. 35–36). within the aims of this article, the last one is of special importance. having established what is understood by epistemic injustice, and how it pertains to sexual violence, we will continue to the next part of this article, to answer the question “what does the right to the truth in cases of sexual violence consist of?” 7 “a widely held disparaging association between a social group and one or more attributes, where this association embodies a generalization that displays some (typically, epistemically culpable) resistance to counter-evidence owing to an ethically bad affective investment.” (fricker, 2007, p. 35). 8 “that is, we learn to work within the parameters of negative stereotypes and to restructure our beliefs in light of any evidence that we will not be heard or believed.” (posey, 2021, pp. xiii-xiv). https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 5 3. the right to the truth in cases of sexual violence 3.1. although this article is centered around reparations, to analyze how to repair the right to truth in cases of sexual violence, we must understand beforehand the broader context about what is the right to truth and how it applies to cases of sexual violence as human rights violations. thus, this section, divided into three subsections, will address what is the right to truth, in which situations it can be applied, and how it relates to sexual violence. what is the right to truth? firstly, we must state that the right to the truth can be understood as an epistemic right (watson, 2021, p. 55)9. however, it is also necessary to state that the right to the truth has developed in parallel to the concept of epistemic injustice, within the margins of international human rights law. although their development has had no real intersecting points, they share the same field of application: epistemic harm. in the jurisprudence of the i/a court h.r., violations of the right to truth have been understood as violations of the right to a fair trial (article 8 of the american convention on human rights achr), freedom of thought and expression (article 13 achr, specifically as the right to access to information) and right to judicial protection (article 25 achr), although not necessarily as a violation of all three rights in all cases (inter-american commission on human rights, 2014, para. 69). in this line, within the inter-american system of human rights, it was initially understood as a right that only existed within the boundaries of judicial processes and that it didn’t have an autonomous character (i/a court h.r, 2006, para. 219), but later on the i/a court h.r. stated that “it has a broad nature and its violation can affect different rights recognized in the american convention, depending on the particular context and circumstances of the case.” (i/a court h.r, 2015, para. 265). eventually, said court recognized its autonomy (i/a court h.r, 2021, para. 176). regarding whom are the right holders, the iahrs has established that they are not only the victims and their relatives, but also society in general (inter-american commission on human rights, 2014, para. 71). to fulfill this right, the states must investigate cases of grave violations of human rights, as well as prosecute and punish those who are found responsible and make available to the public the information regarding said violations. (inter-american commission on human rights, 2014, para. 70). the i/a court h.r has elaborated that there are acts that can satisfy the right to the truth that don’t have a judicial nature, such as executive or legislative ones (i/a court h.r, 2021, para. 178). therefore, in relation to cases of sexual violence, the right to the truth can demand the adoption of measures that go beyond judicial judgements, which is essential to establish reparations. 9 nevertheless, the most recent studies about the right to the truth in relation to epistemic injustice, and the only ones that could be identified in this research are werkheiser (2020) and altanian (2022). https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 6 for example: in cases of grave violations of human rights, the positive obligations inherent in the right to truth demand the adoption of institutional structures that permit this right to be fulfilled in the most suitable, participatory, and complete way. these structures should not impose legal or practical obstacles that make them illusory. the court emphasizes that the satisfaction of the collective dimension of the right to truth requires a legal analysis of the most complete historical record possible. this determination must include a description of the patterns of joint action and should identify all those who participated in various ways in the violations and their corresponding responsibilities. [...]. (i/a court h.r, 2007, para. 195) 3.2. does the right to truth apply in all cases of human rights violations? here’s when we must address an essential question: in which contexts does the right to the truth exist? traditionally, it has been understood that it exists in contexts of transitional justice, which means, “after conflict, mass violence or systemic human rights abuse” (van zyl, 2011, p. 47). nevertheless, the i/a court h.r. has identified in its jurisprudence the concept of “grave violations of human rights” (“graves violaciones a los derechos humanos”) as those in which the right to the truth exists. on this matter, lengua and ostolaza have written about the difficulties in establishing what do “grave violations of human rights” mean for the i/a court h.r. (lengua parra & ostolaza seminario, 2020, pp. 223–269). as they state, said court only used this term to refer to violations that are committed in a systemic or widespread manner. (lengua parra & ostolaza seminario, 2020, p. 229). later, its jurisprudence widened the scope of what constitutes grave human rights violations to include other acts such as extrajudicial executions and torture (lengua parra & ostolaza seminario, 2020, pp. 223–232). in later cases, however, it seems to hint that grave human rights violations must also constitute international crimes, such as in the herzog and others v. brasil case (lengua parra & ostolaza seminario, 2020, p. 233). in this line, in the gelman v. uruguay case, the i/a court h.r. established that: all persons, including the next of kin of the victims of gross human rights violations, have, pursuant to articles 1(1), 8(1), and 25, as well as in certain circumstances article 13 of the convention, the right to know the truth. as a consequence, the next of kin of the victims and society must be informed of all that occurred in regard to said violations. (i/a court h.r, 2011, para. 243). acts of torture, per se, as grave human rights violations were identified for the first time by the i/a court h.r. in the castro castro v. peru case (lengua parra & ostolaza seminario, 2020, p. 233). later on, in the atenco v. méxico case, it established that acts of sexual violence, including rape, qualified as torture (lengua parra & ostolaza seminario, https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 7 2020, p. 237). rape and other cases of sexual violence that can be qualified as torture, thus, do not need to be committed in the context of transitional justice for the right to truth to be applicable, and therefore for the victims to be awarded the adequate reparations. however, this restricts the scope of application of the right to the truth in cases of sexual violence, because it does not include all acts of sexual violence, only those that qualify as grave violations. in these cases, both the obligations of the states regarding cases of sexual violence and regarding the right to truth are applicable. for example, the right to truth’s obligation of investigating and prosecuting those responsible should be understood also in the light of the obligations to investigate and prosecute cases of sexual violence. thus, it is worth remembering what the i/a court h.r. said in the cotton field v. mexico case regarding “the irregularities in the handling of evidence, the alleged fabrication of guilty parties, the delay in the investigations, the absence of lines of inquiry that took into account the context of violence against women in which the three women were killed, and the inexistence of investigations against public officials for alleged serious negligence” as violations of the right to the truth (i/a court h.r, 2009, para. 388). in the same line, it highlighted that said right includes “the determination of the most complete historical truth possible, which includes determination of the collective patterns of action, and of all those who, in different ways, took part in said violations.” (i/a court h.r, 2009, para. 454). it is also worth noting that in the cases where acts of violence qualify as grave human rights violations because they are considered torture, they can be perpetrated by persons that are not public agents. in this respect, the i/a court h.r. has said that acts carried out by private individuals, in the case of lópez soto et al. v. venezuela, can also qualify as torture, whether based on the fact that international state responsibility for torture does not require it to be carried out by a state agent, or because it could fit as an “omission” (lengua parra & ostolaza seminario, 2020, pp. 235–237). this addresses well-known criticism made by chalesworth regarding the fact that, based on the definition of torture under the un convention against torture, international human rights law does not consider violence against women perpetrated by private actors, such as their partners, as such. (chalesworth, 1999, pp. 382–383). on the other hand, the universal system of human rights (ushr) has addressed the right to the truth in a very limited manner. perhaps its greatest feat is its first conventional acknowledgement within the international convention for the protection of all persons from enforced disappearance in 2006. (united nations general assembly, 2012, preamble)10. 10 “artícle 24 […] 2. each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. each state party shall take appropriate measures in this regard.” (united nations, 2006) https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 8 furthermore, the un general assembly approved the “basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law” (united nations general assembly, 2005), in the year 2005. among other principles, it recognizes the right to the truth said victims are entitled to. this document follows a very similar reasoning to the one of the iacthr, since it states that it is applicable to “gross violations of international human rights law and serious violations of international humanitarian law”. there is, however, a difference in the language that is used, because it refers to “gross violations” and not to “grave violations”11. as liganwa notes, there is no universally accepted definition of “gross violations” and only some soft law instruments give us some clues about which violations can be considered as such, including torture, arbitrary executions, genocide, among others (2015, pp. 70–71). though it seems that there isn’t a complete identity between these two concepts, coincidences can be identified which include, as it is relevant for this article, torture. in the year 2012, the un general assembly adopted a resolution called “right to the truth”. its preamble appears to recognize the possibility that the right to the truth assists victims of human rights violations that don’t take place within armed conflicts and that don’t qualify as massive or systematic human rights violations. therefore, the use of “especially” in “stressing that adequate steps to identify victims should also be taken in situations not amounting to armed conflict, especially in cases of massive or systematic violations of human rights,” (united nations general assembly, 2012, preamble) implies that there are other situations, that do not require said special treatment, but to which the right to the truth is also applicable. later, the human rights council created the mandate of the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, in 2011, through resolution 18/7 of the same year (human rights council, 2011). in a 2012 report, they state that “more recently, the measures defined under the mandate have been progressively transferred from their ‘place of origin’ in post-authoritarian settings, to postconflict contexts and even to settings in which conflict is ongoing or to those in which there has been no transition to speak of.” (special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, 2012, para. 16). thus, this is another argument in favor of the fact that currently the scope of scenarios in which the right to the truth is applicable has expanded. therefore, this right cannot not only be claimed in cases of sexual violence that occur in transition contexts, but also outside of them, but, as it was previously mentioned, as long as they are “grave violations of human rights” or, in any case, “gross violations”. 11 in spanish, the wording is “violaciones manifiestas”, although there isn’t a clear definition of said concept either. (lópez martín, 2014, p. 136) https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 9 3.3. the right to truth and sexual violence with respect to the right to the truth and sexual violence, regretfully, in patriarchal societies these concepts are closely linked. for example, bustos talks about the epistemic dimension of sexual violence (bustos arellano, 2022, p. 296, translation by the author of the present article), which they describe in the following manner: from this observation i note that the epistemic dimension of the testimony of sexual violence is present in three ways: (1) in the silencing of the victims because of the fear of discredit of their testimony or complaint; (2) in the silencing of the survivors due to the lack of language that allows them to tell and make sense of their experiences of abuse not only for others, but for themselves; and (3) in the silencing as a condition for survival. (bustos arellano, 2022, p. 296, translation by the author of the present article). this is due to the fact that sexual violence has consequences that include “the group of practices, customs and values that justify and normalize it.” (bustos arellano, 2022, p. 303, translation by the author of the present article). an example is the “feminicide message” (motta, 2019). thus, the physical and psychological consequences of sexual violence do not exist separate from their epistemic consequences. this proves that sexual violence has a strong epistemic dimension that requires its reparation in the context of human rights to also possess an epistemic dimension. said dimension, as it has been mentioned, encompasses not only the direct victim or victims, but extends to all people who share their characteristics (on which the human rights violation was based) and society itself. therefore, in the current state of international human rights the right to the truth cannot be claimed for the totality of cases of sexual violence, only for those that constitute grave violations of human rights. the recent and restrictive recognition of the right to the truth is not surprising due to the fact that, in general, law has a very slow response to recognize and incorporate terms and concepts that emerge from activists’ efforts to create their own language to give testimony (medina, 2021, p. 231.) even with such a limited scope, a wider use of the notion of epistemic justice can be achieved, not in respect of the situations in which the right to the truth applies, but in respect to how to understand the reparations that should be awarded in those cases. in conclusion, in regards to this section of the article, the right to the truth operates in cases of grave human rights violations, that may or may not constitute international crimes, and that can be perpetrated through torture. this means that acts of sexual violence, mainly as rape but also in other cases, can be considered grave human rights violations (or gross violations in ushr language), and therefore entail a violation of the right to the truth, even if they occur outside of contexts of transitional justice. also, based on the aforementioned arguments, this can entail state responsibility for acts of private actors. this is the state of the scope of application of the right to the truth in cases https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 10 of sexual violence, in the current state of international human rights law, and therefore these are the cases where reparations for said right can be awarded. understanding these human rights violations as cases of epistemic injustice, as it will be demonstrated in the next section of this article, is necessary for reparations to also address the epistemic harm caused by them. 4. is it possible to obtain justice through truth? based on all the aforementioned arguments, understanding the right to the truth as a necessary response to epistemic injustice in cases of sexual violence is of the utmost importance, because only through understanding what epistemic injustice harm has to be repaired can adequate reparation measures be designed and implemented. as it was previously stated, the kind of epistemic injustice experienced by victims of sexual violence, especially women, includes both the obstacles to name and tell their experiences. therefore, reparations in cases of sexual violence require compensation for this injustice through reparations of the right to the truth, that can start by the mere fact of acknowledging their entitlement of said right and its consequent reparation: because being epistemically recognized as a creditor of truth is a fully human interest. in second place, because denying the recognition of being creditors of truth or of certain knowledge constitutes part of the harm reported by victims of sexual violence. (bustos arellano, 2022, pp. 304–305, translation by the author of the present article). this harm as epistemic agents in a certain society is not minor, but, as it is argued in this article, constitutes an essential part of the harm consequence of sexual violence, in patriarchal societies12. in this line, the inter-american commission on human rights (iachr) has stated that: because it is an obligation of the states that emanates from the guarantees of justice, the right to the truth is another form of reparation in cases of human rights violations. in effect, the acknowledgement [of the facts] is important, because it constitutes a form of recognizing the significance and value of persons as individuals, as victims and as holders of rights. (interamerican commission on human rights, 2014, para. 124). 12 we note that we refer to patriarchal societies because there can exist other societies in which victims of sexual violence, especially women, do not have a credibility deficit, this not necessarily creating the same kind of epistemic harm. https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 11 it is worth noting that the role of the victims in the inter-american system has evolved greatly since its inception (franco martín del campo and fajardo morales, 2021, p. 75). the third version of the rules of procedure of the inter-american court of human rights strengthened the participation of the “representation of the victims or their next of kin” (i/a court h.r, 1996, article 23) (franco martín del campo and fajardo morales, 2021, p. 88). in the current version of the rules, victims’ participation in the oral proceedings is especially pertinent in regards to epistemic injustice because “during the audience, the victims and their representation can manifest before the court’s judges the impact that the violation of human rights has had and maintains in their lives and in those of the people closest to them, establish the expectations they have of the inter-american court; as well as conduct the process in accordance with the interests, necessities an convictions of the victims”, as was done in the atenco v. méxico case. (franco martín del campo and fajardo morales, 2021, p. 94, translation by the author of the present article). epistemic injustice changes the manner in which reparations are understood for the victims of sexual violence. in regards to hermeneutic epistemic injustice, its innate structural nature requires that reparations bestow tools to understand that said experiences are owed to their exclusion/oppression situation, and thus allow for adequate reparation measures to be designed and applied (garcía álvarez, 2019, p. 166). in regards to testimonial injustice, the testimonies of the victims of sexual violence must be understood as part of a current tendency for testimonies to be considered “affective and therapeutic self-expression of remembrance, in order to maintain memories, realization of grief and collective conciliation.” (gonzález de requena farré, 2015, p. 62, translation by the author of the present article). meaning that not only testimonies brought forward during the judicial processes must be understood in such manner, but that also the reparation measures must aim to repair the harm by creating spaces and opportunities for the victims to give testimony in said conditions. this, because testimony also constitutes a social practice (wanderer, 2017, p. 27). although the main subject of this article is the right to truth regarding reparations and not regarding criminal procedure, it is important to note that some reparations could, and have in some cases, consist of ordering the state to prosecute those responsible. it is also important to note that in cases in which reparations are awarded in the context of judicial procedures, the victims and their representatives can ask and argue for specific reparations. therefore, there are some issues that should be taken into consideration to fight against epistemic injustice in the justice system, for example, regarding the manners in which judges (and in the american case, the jury) analyze the case (sullivan, 2017, p. 295). for example, in cases in which the victims and their representatives argue and complain using language different from the standard in (international human rights) law, this can give cause to “rejection to epistemic difference, this is, disdain to any interpretation of reality that is not consistent with ours or, simple, that has not been proposed and drawn by the prevalent and dominant voices in the public space, in social networks or in mass means of communication” (eraña 2022, p. 168, translation by the author of the present article). https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 12 this is what happens, for example, when indigenous people13 seek to claim rights on their own territories (townsend and townsend, 2021, 153). in this line, sullivan’s proposal is applicable to latin american indigenous people realities, but noting, furthermore, the linguistic diversity that exists in the region, that adds another challenge for the system based on the existence of people with indigenous mother tongues different from spanish, which can constitute linguistic injustice (cátedra unesco de igualdad de género en ies – pucp, 2024a, 1:36:47). for example, the killing of the shaman of a people can signify not just murder but the extinction of a people to them. (cátedra unesco de igualdad de género en ies – pucp, 2024b, 00:31:31). it is also worth mentioning that, in the regards to the act of giving testimony within processes, the duty to listen to them though this lens is not only for the judges, but also of their own representatives (lema añón, 2023, p. 287). it is important that not only those testimonies are listened to, but that they are heard with the due merit and significance (townsend and townsend, 2021, p. 149). the challenge resides in the fact that many times trying to translate to a language that the court knows and comprehends experiences that sometimes even the victims themselves cannot necessarily express, not because of a lack of knowledge of the judicial language, but because of the structural differences of hermeneutic injustice. this, in addition to the epistemic labor mechanisms explained beforehand through which victims try to navigate these processes from their marginalized epistemic situation. additionally, it should be taken into consideration that all these efforts must be carried out without revictimization. the way in which the practice of testimony seeks to be implemented during the process as a form of reparation, in all its range of necessities, should in no way suppose an additional baggage for the victims, but a possibility for reparation. we must “go beyond certain testimonial melancholy and of the compulsive repetition of trauma”, betting in its place for “more strategic and critical modalities of the political practice, in a way that achieves acknowledgment of the conditions of the injustice exercised on the victims and in this way legitimizes proposals of action (cf. lacapra 25–6).” (gonzález de requena farré, 2015, p. 62, translation by the author of the present article). thus, said testimony could be understood as a form of knowledge transmission, as well as a form of community building, depending on the approach used in the analysis (bustos arellano, 2022, pp. 291–292). on this matter, fricker highlights the importance of both individual remedies as well as structural remedies (fricker, 2010, cited in anderson, 2012, pp. 167–168). a wider understanding of the right to the truth is needed, in its epistemic-relational aspect as a right to know14, for reparation measures to be restorative (altanian, 2022, p. 8). this relational 13 “(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.” (international labour organisation, 1989, article 1) 14 “recalling that a specific right to the truth may be characterized differently in some legal systems as the right to know, the right to be informed, or freedom of information,”. (united nations general assembly, 2012, preamble). https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 13 aspect is not unimportant, because reparation measures, both individual and collective, that should be awarded have to take them into consideration. specifically, it is required to have reparation measures that allow: “to restore the victims' epistemic standing against this background, they need to be recognized as authoritative contributors to the common pool of epistemic resources based on which knowledge and understanding of the injustice are generated. this ensures that victims are indeed acknowledged as authoritative epistemic contributors and not only receivers of evidence and knowledge about violation and injustice.” (altanian, 2022, p. 13). it is worth nothing that the i/a court h.r. has awarded reparation orders for the right to the truth in many cases (santiago, 2022, pp. 82–96), which means there already is a starting point for this endeavor. for example, in the case of serrano cruz sisters v. el salvador, it highlighted that knowledge of the facts that took place has a beneficial effect on the family and society, due to its preventive effect (i/a court h.r, 2005, para. 169). in this line, it ordered that judgement of the criminal process to be divulged publicly to make the truth of the facts known. (i/a court h.r, 2005, para. 175). it was also ordered that “a day dedicated to the children who, for different reasons, disappeared during the internal armed conflict, in order to make society aware” (i/a court h.r, 2005, para. 196). afterwards, in the cotton field v. méxico case, the i/a court h.r. ordered the state to publish the judgment in the official newspaper and in two more, in addition to publishing it on a website (i/a court h.r, 2009, resolution number 15). additionally, it ordered mexico to carry out an acknowledgement act (i/a court h.r, 2009, resolution number 16) and to build a memorial (i/a court h.r, 2009, resolution number 17). it also ordered the following measures: the state shall, within a reasonable time, continue standardizing all its protocols, manuals, prosecutorial investigation criteria, expert services, and services to provide justice that are used to investigate all the crimes relating to the disappearance, sexual abuse and murders of women […] (i/a court h.r, 2009: resolution number 18). the state shall continue implementing permanent education and training programs and courses for public officials on human rights and gender, and on a gender perspective […] (i/a court h.r, 2009: resolution number 22). the state shall, within a reasonable time, conduct an educational program for the general population of the state of chihuahua so as to overcome said situation. […] (i/a court h.r, 2009: resolution number 23). in the rosendo cantú v. méxico case, the i/a court h.r. noted that when victims participate in criminal processes, said participation needs to be aimed “to make effective her https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 14 rights to know the truth and obtain justice before the competent judicial authorities.” (i/a court h.r, 2010, para. 167). it also indicated that, if the state has rosendo cantú consent, as a victim, it should divulge what is the decision reached at the end of the process, “so that mexican society can learn the truth about the incident” (i/a court h.r, 2010, para. 213). later on, in the gelman v. uruguay case, it stated that access to justice and investigation constitute part of the reparation to the right to the truth (i/a court h.r, 2011, para. 243). in this line, it stated that: the acknowledgment and exercise of the right to know the truth in a specific situation constitutes a means of reparation. therefore, in the instant case, the right to know the truth gives rise to the victims’ expectations, which the state must satisfy. (i/a court h.r, 2007, para. 289). in relation to public apologies, the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence has stated “that truthful apologies are required in order to validate the experience of victims and restore their dignity. dehumanization is often a necessary element of the process of rationalizing and inflicting suffering on others. truthful apologies are a fundamental part of humanizing – or “rehumanizing” – those who have suffered past abuses and re-establishing their human worth, dignity and self-respect” (special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, 2019, para. 21). without a doubt, all these measures entail a certain level of reparation for the epistemic injustice experienced by the victims of sexual violence, both perpetrated during the violent act as well as those than can happen during the judicial process, for which victims can feel like they have been “raped twice” (museo nacional de colombia, 2020, 00:30:22). nevertheless, to address these reparations based on the notion of epistemic injustice requires to go beyond, taking in consideration all the topics addressed in this article. thus, we argue that the following guidelines should be followed to allow for more complete reparations to the right to the truth on the basis of the concept of epistemic injustice, in cases of sexual violence: ● as it was mentioned above, some of the reparation measures the i/a court h.r. already orders constitute a form of reparation for the epistemic injustice experienced by victims of the different forms of sexual violence. for example, responsibility acknowledgements. ● some of the reparations that are already awarded can be modified to address other aspects of epistemic injustice experienced by victims of sexual violence, such as, among others, their empowerment as epistemic agents. for example, the training that should be undertaken by agents of the justice system that investigate https://doi.org/10.17561/tahrj.v24.9250 rita del pilar zafra ramos the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 15 and prosecute sexual violence cases centers not only on the prejudices that can operate in these cases, which is related to testimonial injustice, but also on the epistemic labor carried out by the people for their testimonies to be credible. this allows for the victims to be recognized as epistemic agents, even if they are in epistemic marginalized positions, and thus actively act as such when this is not easily perceived. ● furthermore, it is necessary to address the hermeneutical aspect of the epistemic injustice experienced by the victims of sexual violence. thus, another form of reparation could be the explicit acknowledgement that the testimony of the victims contributes to the understanding of sexual violence and with gratitude for this contribution. many times, victims report their experiences of sexual violence to prevent it to happening to others, not only to find the persons responsible, but also for it to be understood as a phenomenon that needs to be acknowledged and addressed. in this way, they seek to “convert […] their own painful experiences into something that will help convert and transform the lives of other women. to be able to share their stories and speak proudly about what they had survived and what knowledge they can pass on.” (museo nacional de colombia, 2020, 00:49:20). ● these guidelines should be adapted with more specificity to different types of sexual violence. for example, in some cases there won’t be a deep understanding of the type of sexual violence perpetrated, and therefore there should be special attention paid to the hermeneutical aspect of the epistemic injustice. in other cases, the main aspect of the epistemic harm will be testimonial, and thus the reparations should focus on it. these are only a few proposals on the basis of the research undertaken in this article. nevertheless, the main proposals that should be taken into consideration are those made by the victims themselves, if they are truly to be recognized as epistemic agents. their complaints and testimonies also constitute knowledge, and thus essential elements for the development of human rights if we truly seek reparations of victims as the focus of this labor. 5. conclusions this article has demonstrated the importance of taking into consideration the concept of epistemic injustice to conceptualize reparations for the right to the truth of victims of sexual violence. in this line, we presented that concept and its current development, to understand its implications. later, we analyzed the right to the truth, especially in the iahrs, and how it’s been applied in cases of sexual violence. this allowed us to identify that, in the current state of ihrl, it is only applicable to acts of sexual violence that qualify as grave human rights violations (or gross violations in the language of the ushr), for example, when they constitute torture. https://doi.org/10.17561/tahrj.v24.9250 epistemic injustice, the right to the truth and reparations in cases of sexual violence the age of human rights journal, 24 (june 2025), e9250 issn: 2340-9592 doi: 10.17561/tahrj.v24.9250 16 we proceeded to analyze which kinds of reparation are required for sexual violence in the epistemic field. it was also explained, how, currently, reparations for the right to the truth have been awarded, especially in the iahrs. finally, we have proposed guidelines for reparations for the right to the truth in cases of sexual violence, based on what has been established in the previous sections. ihrl can give very important answers to the epistemic injustice experiences in cases of sexual violence through reparations of the right to the truth, as it has been proved in this article. this could lead us to some questions that are outside of the scope of this article, 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(2020). ‘a right to understand injustice: epistemology and the “right to the truth” in international human rights discourse’, the southern journal of philosophy, 58(1), 186–199. https://doi.org/10.1111/sjp.12354 received: 15th october 2024 accepted: 16th january 2025 https://doi.org/10.17561/tahrj.v24.9250 https://doi.org/10.1111/sjp.12354 epistemic injustice, the right to the truth and reparations in cases of sexual violence 1. introduction 2. what is epistemic injustice? 3. the right to the truth in cases of sexual violence 3.1. although this article is centered around reparations, to analyze how to repair the right to 3.2. does the right to truth apply in all cases of human rights violations? 3.3. the right to truth and sexual violence 4. is it possible to obtain justice through truth? 5. conclusions references in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 1 in search of durable solutions for refugees in indonesia: a state security and human rights protection approach m. alvi syahrin1, m. rafly qalandy2, m. syaran jafizhan3 abstract: the indonesian government is experiencing difficulties in dealing with the refugee problem. this is because the number of refugees in the waiting period is increasing and the destination country limits the acceptance quota. currently, the refugee problem in indonesia is regulated in presidential regulation no. 125/2016. however, its implementation has not been optimal, as it is hampered by coordination and legal compliance factors. the implementation of the presidential regulation creates inconsistencies in legal norms with other regulations. then, some local governments have begun to reject the presence of refugees. they are not willing to prepare shelters for refugees, because it burdens the budget. currently, the government does not have a long-term solution that can be used to solve the refugee problem in indonesia. this paper will discuss indonesia’s role in solving the refugee problem by formulating strategic policies from a humanitarian perspective. this article uses socio-legal research with a qualitative approach. although not a state party to the 1951 convention, indonesia has adopted various international laws that protect the human rights of refugees. however, its legal legitimacy is still disputed from the perspective of state security and sovereignty. indonesia continues to be encouraged to ratify the convention to strengthen the promotion and defense of refugee rights. in fact, ratification can be a quick way to bridge the gap between international and domestic legal frameworks in addressing refugee issues in indonesia. however, the government cannot wait to resolve this issue until the convention is ratified. there are several long-term solutions that can be practiced to address the refugee issue, including: pushing for human rights instruments to implement the basic rights of refugees; re-establishing the refugee issue as part of the national human rights action plan; revising presidential regulation no. 125/2016; and formulating a new policy with indonesia, unhcr, and giving greater authority to iom to empower refugees while they wait to enter the destination country. keywords: refugees, durable solutions, state security, human rights, indonesia. summary: 1. introduction. 2. research method. 3. discussion. 3.1. fundamental rights of refugees in the 1951 convention and 1967 protocol. 3.2. the polemic of indonesia’s position in dealing with refugee problems. 3.3. indonesia’s urgency to ratify the 1951 convention and the 1967 protocol. 3.4. comparison of refugee handling laws in several countries. 3.4.1. australia. 3.4.2. singapore. 3.4.3. malaysia. 3.5. human rights advocacy as a basic instrument for protection and empowerment of refugees. 3.5.1. human rights and advocacy training for refugees. 3.5.2. human rights learning communities. 3.5.3. strengthening rlos rlis and learning centers to add refugee human rights issues as a priority agenda. 3.6. moderate solutions to fulfilling refugee rights during the resettlement process in indonesia. 4. conclusion. 1 immigration polytechnic, ministry of law and human rights of the republic of indonesia (ma.syahrin@ poltekim.ac.id). 2 sriwijaya university, indonesia (raflyqalandy@yahoo.com). 3 sriwijaya university, indonesia (syaran_jhafez@yahoo.com). https://doi.org/10.17561/tahrj.v22.8255 mailto:ma.syahrin@poltekim.ac.id mailto:ma.syahrin@poltekim.ac.id mailto:raflyqalandy@yahoo.com mailto:syaran_jhafez@yahoo.com in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 2 1. introduction the issue of international refugees and asylum seekers has become a common topic for the international community. this is because this problem has crossed the territorial limits of a country and entered the territory of other countries in large numbers. their presence is actually not a completely new phenomenon (kang, 2021). in addition to the issue of climate change and terrorism, the issue of refugees and asylum seekers has become a global problem. refugees have been a problem since around the 20th century. the issue originally materialised during the russian war (during the russian revolution), specifically when russian refugees poured into western europe. refugees are persecuted because their rights are denied in their home country. additionally, they are looking for property or other nations to move to, places that are undoubtedly far from the repression of human rights (kranrattanasuit, 2023). the first world war, which is regarded as the pinnacle of the nation-building process, is when the phrase and meaning of refugees first originated. it was projected that there were at least 1.5 million refugees at the time. of these, 500,000 armenian refugees were uprooted as a result of the killings and their forcible repatriation to turkey. in the middle east, the former soviet union, and other western nations, displaced individuals look for sanctuary (odutayo, 2018). when the league of nations selected fridtjof nansen, a norwegian explorer of africa, as the high commissioner for russian refugees in europe in 1921, the international community’s efforts to address refugee issues were launched. since these refugees lack identity documents serving as proof of their identity, they are unable to engage in some very basic legal actions, such as being unable to get married, enter into contracts, or travel. this issue ultimately become problematic. international treaties, such as those from 1928, 1933, 1938, 1939, and 1946, were drafted to address this. the 1951 conference on the status of refugees, which was supplemented by the 1967 protocol, served as the united nations’ continuation of these agreements (kang, 2021). the international refugee organisation (iro) was founded by the un with the mission of defending refugee groups that had been acknowledged by the lbb following the collapse of the lbb and the creation of the un. the iro’s primary goal at first was repatriation, but as political tensions increased and finally led to the cold war, the focus of the strategy turned to resettlement. later on, the unhcr took over from the iro as the primary refugee agency. the initial step taken by unhcr was to enter into the 1951 convention on the status of refugees. the 1951 convention is the starting point for any discussion on the issue of refugees. this convention is one of two other refugee conventions, namely the 1967 protocol. in some respects this convention is seen as opening the way because it is the first time in history that a convention has provided a general definition of a refugee (syahrin, 2021). https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 3 the 1951 convention on the status of refugees, which was created at the conclusion of world war ii, focuses on individuals who are outside the territory of their country of origin and become refugees as a result of events that took place in europe before to january 1, 1951, and the concept of refugee that is outlined in it. in relation to it was judged necessary to broaden the 1951 convention’s time and geographic scope as the refugee problem worsened in the late 1950s and early 1960s (odutayo, 2018). as a result, during its creation, the 1967 protocol, an supplementary protocol to the convention on the status of refugees, was created and approved. indonesia is one of the nations that must deal with the issues posed by foreigners seeking asylum and refugees who enter and stay over on indonesian soil. indonesia is the final stage for the surge of asylum seekers and refugees travelling to australia, even though it is not a destination country due to its geographic location. in 1979, indonesia faced a challenge with a sizable influx of refugees and asylum seekers for the first time. the indochina war between the people’s republic of china and vietnam at the time resulted in the arrival of refugees and asylum seekers from vietnam in indonesia. around 170,000 refugees and asylum seekers came to indonesia to seek refuge (taylor and rafferty, 2010). they seek protection by land and by sea, so they are known as boat people. in 1999, about 250,000 refugees from east timor also approached indonesia who entered the territory of east nusa tenggara. the influx of refugees was due to violence, confiscation of property and burning of houses by pro-integration militias in the east timor region. in addition, countries from the middle east, central asia and south have also visited indonesia (hugo, et.al., 2017). according to information from directorate general immigration, indonesia, as of july 11, 2023, there were 12.781 refugees in indonesia. a total of 6,522 people live in official shelters, and the rest are independent refugee status. based on their nationality, 6,703 people came from afghanistan, 1,359 people from myanmar, 1,260 people from somalia, 614 people from iraq, 489 people from sudan, and the remaining 2,356 came from various other countries. the data consists of 70% adults, 28% children, and 2% parents (directorat general of immigration, 2023). indonesia has not joined the 1951 convention and 1967 protocol as a party. as a result, indonesia lacks the power to give refugee status determination (rsd). so that the unhcr (un high commission for refugees) can regulate refugee-related matters in accordance with the mandate it gets based on the unhcr statutes of 1950. since the 1951 convention has become jus cogens and no refugee can be sent back to a place where his life or freedom is in danger, all nations, including those that have not ratified it, must uphold the standards of refugee protection that have been incorporated into general international law. a significant international agreement that defines the legal parameters for refugee protection and state obligations towards them is the 1951 convention relating to the status of refugees. its relevance goes beyond treaty law; it reflects the core values of https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 4 justice, solidarity, and humanity. the convention establishes the requirements for who can be considered a refugee, their rights, and the responsibilities of nations to offer protection, non-refoulement, and access to basic services (allain, 2001). the principles contained in the convention are of utmost importance and apply to all states, regardless of their ratification status, as jus cogens, or peremptory rules of international law. they represent global principles that call for universal observance and respect, making it both morally and legally required of states to protect the rights and dignity of refugees (farmer, 2008). the 1951 convention’s jus cogens status forbids any deviation or reservation that would conflict with the fundamental ideas of the agreement, placing an unwavering obligation on governments to abide by its provisions (costello and foster, 2016). this improved legal standing emphasises how fundamental human rights are unalienable and how refugee protection is non-negotiable. the requirements of jus cogens require states to abstain from actions that go against the core principles of the convention, such as unjustified detention, forced return to persecution, and discrimination on the basis of refugee status. the acknowledgement of refugee rights as preeminent standards signifies a common dedication to maintaining legal order, safeguarding human dignity, and guaranteeing the international community’s joint accountability for safeguarding the most susceptible segments of the populace (roman and tania, 2019). problems emerge when the government is unresponsive while dealing with refugees or asylum seekers since indonesia has not yet ratified international agreements concerning refugees and asylum seekers, especially the 1951 convention and 1967 protocol. unhcr determines status, which is a lengthy process. as a result, there were signs of human rights breaches throughout the waiting period, such as abusive behaviour, including physical assault, the imprisonment of asylum seekers for an extended period of time without justification, and harsh interrogation techniques (syahrin, 2017). governments may also fail to offer asylum seekers and refugees proper protection, leaving them vulnerable to racial and xenophobic violence. the national commission on human rights claims that if indonesia ratifies it, at least some benefits will accrue to indonesia. the first benefit is that the government can decide for itself what status refugees and asylum seekers have. second, in order to improve national capability for handling refugees and asylum seekers, the government may receive aid and collaboration from abroad. third, stop the pillion who is driving with a different intention. the pillion is frequently connected to illegal activities like human trafficking (sumarlan, 2019). the indonesian government’s ratification of the 1951 convention and 1967 protocol is crucial for ensuring the protection, fulfilment, and respect of the human rights of refugees and asylum seekers. additionally, the government’s impasse in dealing with the increasing number of refugees and asylum seekers may be resolved by efforts to ratify these international human rights agreements. the action of ratifying the 1951 convention and the 1967 protocol gives the government of indonesia a wider opportunity to be directly involved and contribute in accordance with the handling of refugees and asylum seekers on a national level. https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 5 indonesia faces a number of problems related to the refugee issue, which involves people fleeing conflict, violence and persecution in their home countries. the following are several problems related to the refugee issue in indonesia: (1) unclear legal status. many refugees in indonesia do not have clear legal status. this may result in uncertainty regarding their rights and obligations, including the right to employment, education, and access to health services; (2) overcrowded shelter centers. the capacity of holding centers for refugees in indonesia is often limited, resulting in uncomfortable conditions and health risks. some refugees live in temporary holding centers, while others live in local communities; (3) challenges of access to education; (4) some refugee children face difficulties in accessing formal education. this could be due to an inability to pay school fees, limited school capacity, or language challenges; (5) health challenges. refugees may face challenges in accessing adequate health services. health facilities in holding centers are often limited, and access to health services in local communities may also be a problem; (6) uncertain work and livelihood. refugees in indonesia often face difficulties in finding decent and safe work. some of them are forced to work in conditions that are unstable and may not suit their skill; (7) uncertainty of status and repatriation. some refugees may face uncertainty regarding their status and whether they will be able to return to their home country or obtain refugee status in indonesia (syahrin, et al., 2022). the indonesian government is working with international organizations, such as unhcr, and non-governmental organizations to address some of these problems and provide assistance and protection to refugees. nevertheless, these issues continue to be the focus of attention in efforts to improve conditions and protection for refugees in indonesia. the 2016 presidential regulation number 125 of 2016 concerning the handling of refugees from abroad, issued by president joko widodo, grants legal recognition to foreign refugees who have been granted refugee or asylum status by unhcr indonesia. however, civil society organizations in indonesia criticized the regulation for using a security approach, not human rights. in addition, there has been no contextual change to this seven-year-old regulation. the lack of protection for refugees’ human rights in these regulations actually makes it difficult for the government to implement these regulations, thereby worsening the situation for protecting the rights of refugees and asylum seekers in indonesia (suyatna, et al., 2021). in addition, the handling of refugee issues must be examined from a security and sovereignty perspective (benhabib, 2020). when considering refugee cases, a humanitarian viewpoint emphasises the moral obligation to shield and support marginalised people who have been compelled to leave their native countries because of political unrest, violence, or conflict. humanitarian principles require that we all do our part to guarantee that their fundamental needs are satisfied and that their human rights be upheld (tazreiter, 2006). the sovereignty approach, on the other hand, places more emphasis on a state’s right to control its own territory while taking economic, social, and national security concerns into account. states frequently put their sovereignty before humanitarian concerns when handling refugees, creating a difficult rift between states’ rights to defend their own interests and their moral duty to assist the less fortunate. therefore, ensuring effective refugee protection while upholding state sovereignty is a problem that calls for a balanced https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 6 and comprehensive strategy to reconciling the humanitarian and sovereignty viewpoints in the handling of refugee situations (kleist, 2018). therefore, a durable solution framework is needed to overcome this problem by comparing best practices in several countries with the aim of obtaining comprehensive thinking. 2. research method the method used in this research is social-legal research with a qualitative approach. this research was carried out by examining the situation based on statutory and empirical approaches related to existing phenomena. data collection is carried out through literature reviews, existing legal materials, and social facts appropriate to the topic. meanwhile, the analysis technique is carried out by constructing legal arguments using argumentative techniques (tan, 2021). 3. discussion 3.1. fundamental rights of refugees in the 1951 convention and 1967 protocol minimum requirements for the care of refugees, including their fundamental rights, are outlined in the 1951 convention and 1967 protocol. the convention specifies provisions relating these refugees’ rights as well as their legal status. get a job and apply for welfare, get identification documents, travel documents, pay taxes, and transfer his assets to another nation where they were received with the intention of returning are a few of them (darmawan and heriyanto, 2023). expulsion and forced returns of people having refugee status are forbidden by the convention. article 33 of the 1951 convention states this. no state party may deport or return (return) refugees for whatever reason to the border region where their independence or life may be in danger due to considerations of race, religion, nationality, members of a particular social group, or political opinions, according to article 33 of the convention. the 1951 convention’s article 34 addresses the topic of naturalisation and integration for refugees. other clauses in article 34 deal with the freedom of travel, housing, social security, education, and access to courts. the main provisions of the 1951 convention can be divided into two categories: (a) provisions defining the status of non-refugees, their rights, and obligations; and (b) provisions defining who is a refugee, who is no longer a refugee, and who is a refugee from refugee status. the 1951 convention and the 1967 protocol together govern the following clauses: a. the major goal of this convention is to establish a legal system that ensures the safety of a group of persons who are in a precarious position. according to article 1 of the convention, a person is considered a refugee if they are outside of their country of citizenship due to a well-founded fear of being https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 7 persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion and are unable to obtain or do not want to obtain the opportunity to protect their country because of the fear earlier or if they are not citizens and are outside of the country where they typically live before. therefore, a refugee is someone who has left their country of origin or usual residence and is unable to or does not want to receive the protection from that country that is normally their right due to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political beliefs. the unhcr participates in this process if the country concerned requests it, allowing it to offer its many years of experience to the government concerned regarding the determination of whether a person is eligible for refugee status. each country concerned determines whether a person is eligible for refugee status in accordance with its own established procedures that are consistent with international standards, based on the criteria contained in article 1 of the 1951 convention. b. according to article 1c of the 1951 convention, a person may lose his status as a refugee if: (a) having willingly reclaimed the chance to be protected by his country of citizenship; (b) after losing it, he voluntarily gains it back; (c) acquiring new citizenship and taking use of the protections offered by the nation where he does so; (d) voluntarily relocated outside of a country he fled due to persecution, or voluntarily relocated in a previously abandoned country; (e) because the circumstances that led to his registration as a refugee have changed, he can no longer decline to accept protection for his country of nationality; (f) despite being stateless, he was able to return to his country of origin because the conditions that rendered him a refugee were no longer there. c. the 1951 convention also addressed circumstances in which individuals were denied refugee status while possessing certain qualities. these individuals are divided into three sections. people who have received protection or aid from un organisations or organisations other than unhcr make up this group. the united nations relief and works agency, also known as unrwa for palestinian refugees, provides help to palestinians in numerous middle eastern countries, for instance. d. includes those who are not thought to require international protection. this clause refers to individuals who have been accepted by a nation and are now allowed the majority of the rights that are often reserved for the nation’s citizens, in this case with the exception of legal citizenship. regardless of their nationality, people of german ancestry from central europe and the former soviet union are all protected by the german constitution, hence they are not considered refugees under the 1951 convention. e. groups of people who are regarded to be eligible for international protection because they have previously committed major non-political crimes, crimes against peace, war crimes, or crimes against humanity outside of the country of refuge. either reside there as refugees or have engaged in behaviour that is at odds with the goals and objectives of the united nations. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 8 f. the agreement includes detailed provisions about refugee rights to ensure the legal status of refugees in nations that grant asylum. refugees are accorded the same minimum standard of rights that are accorded to foreigners generally, barring any specifically indicated exceptions to this rule in the convention. because a refugee does not get protection from his country of citizenship, he is also granted specific privileges that are typically not granted to foreigners. the following are the rights of refugees: (a) the right to be kept from leaving a nation where they fear persecution; (b) the right to remain in a country, except special circumstances such those involving public safety and national security; (c) due to the circumstances that force refugees to flee their country of origin, it may not be possible for them to enter a country that has the potential to grant them asylum in the typical way, such as with a valid passport or entry visa. as a result, they may be exempt from penalties for entering a country’s territory illegally that is a party to the convention. but normally, refugees may not be subjected to such illegal admission or presence; (d) participating nations are required by law to give refugees living on their soil the freedom to choose where they will live and to move around as they like, in conformity with the rules that apply to foreigners in general under the same circumstances; (e) both religious and legal freedom are guaranteed; (f) travel and identification documents; (g) a right to employment and housing; (h) availability of formal education; (i) help from the government, labour laws, and social security. g. refugees are foreigners who are in a very vulnerable situation. this does not make them escape from their obligations as people living in other countries. refugees have obligations to the country where they get asylum, and must comply with existing laws and regulations, as well as be authorized to take actions taken by the authorities for the maintenance of public order. indonesia’s ratification of the refugee convention has great urgency because it involves the state’s obligation to protect the rights of refugees. to demonstrate its adherence to international humanitarian standards and protect the rights and dignity of refugees living on its territory, indonesia ought to ratify the refugee convention. after ratification, indonesia will have a clear legal framework to support and protect refugees, making sure they get the help they need and are shielded from discrimination and persecution. indonesia can exhibit its desire to work with the international community to address global issues, promote human rights, and build regional stability by ratifying the convention. ratification will help boost regional and global systems for refugee protection and assistance and improve indonesia’s standing as a responsible member of the international community. in general, indonesia’s principles and interests in advancing peace, stability, and respect for human rights both at home and internationally are aligned with the ratification of the refugee convention. the refugee convention is an international agreement agreed by a number of countries to establish minimum protection standards for refugees (goodwin-gill, 2014). the reasons are as follows, (1) legal protection: ratification of the refugee convention provides a legal basis for countries to provide protection to refugees. these rights include https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 9 basic rights such as the right not to be evicted, the right to work, the right to education, and the right to health. (2) international solidarity: by ratifying this convention, indonesia shows its involvement and commitment to international solidarity in dealing with the refugee issue. countries that ratify this convention work together to tackle the refugee problem and share responsibility. (3) improved country image: active participation in the protection of refugees can improve a country’s international image. this can create trust and strengthen friendly relations with other countries. (4) refugee empowerment: this convention is very important in providing rights and protection to refugees, helping them build new lives and make positive contributions to society. this is in accordance with human rights values. (5) addressing common challenges: refugees often face complex challenges, and international cooperation recognized by the convention can help countries to address common problems. this includes financial assistance, exchange of information, and coordination of actions between countries. (6) progress in handling the refugee crisis: ratification of the refugee convention can stimulate countries to develop more effective policies and mechanisms in dealing with the refugee crisis. this includes the establishment of special institutions, legal regulations, and procedures to provide protection to refugees. by ratifying the refugee convention, indonesia expressed its commitment to comply with international standards in the protection of refugees and supports joint efforts to address the global refugee problem. 3.2. the polemic of indonesia’s position in dealing with refugee problems the number of asylum seekers and refugees continues to experience a significant increase. indonesia is only used as an excuse so they can stay and settle down without having to go to the destination country. they are aware that australia is currently very selective and firm in rejecting the presence of immigrants, both legal and illegal. many of them then changed their destination from australia to indonesia. therefore, asylum seekers and refugees take advantage of indonesia’s weak position, in order to enter indonesian territory on the basis of human rights. the influx of asylum seekers and refugees into indonesia has started to raise concerns and inconveniences. it also poses a threat to social order, political stability, and even personal safety. they are extremely vulnerable in terms of status, the economy, and psychology, making them easy prey for international terrorist networks as well as networks engaged in human trafficking, drug trafficking, and people-smuggling. this could have an effect in addition to several indonesian issues. there are four attractions for refugees to be in indonesia to their destination in australia (syahrin, et al., 2022). first, indonesia is the closest country as an illegal route for foreign immigrants. second, the sovereignty of indonesian waters which still has many gaps and is not fully maintained. thus, foreigners can easily enter without immigration checks. not to mention the problem of government officials who have contributed to the entry of asylum seekers illegally. third, the existence of unhcr is an attraction for foreign refugees who have money. fourth, both indonesian citizens and foreigners, even officials who make asylum seekers and refugees a business field (missbach and cameron, 2022). based on the data i got from refugees in the kalideres area, at least they https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 10 have to pay around us$ 5000 10,000 per person to get to australia by first transiting to indonesia. they handed over the money to a group of agents suspected of being a people smuggling syndicate. the refugee problem is related to the application of the principle of non-refoluement. this principle becomes the rule of law that underlies the existence of refugees in a country. article 33 paragraph (1) of the 1951 convention states that every country must respect this principle as a coercive norm (jus cogens) and cannot be reduced by any reason. the 1951 convention’s article 33, paragraph 1 regulates the concept of nonrefoulement, but its applicability is not universal. the national legal sovereignty of each nation places restrictions on the non-refoulement principle. the non-refoulement principle does not apply if the refugees threatens national security or upsets public order in the nation where they seeks asylum, according to article 33 paragraph (2) of the 1951 convention. however, a refugee who there are reasonable grounds to believe is a danger to the security of the country in which he is, or who, having been found guilty by a final judgement of a particularly serious crime, constitutes a danger to the community of that country, may not claim the benefit of the present provision (syahrin, 2018). why would indonesia, which is not a party to the convention, do the opposite if a state party to the convention can expel refugees? the application of the principle of nonrefoulement for refugees and asylum seekers in indonesia, which has been the basis for consideration, cannot be fully justified without referring to the human rights component. however, in fact, this principle must be prioritized and applied because of peremtory norms (jus cogens) and respect for human rights (tobing, 2021). universal human rights does not mean that they must be enforced, but must pay attention to the aspects of boundaries that are recognized by regional law. indonesia is not a state party to the 1951 convention, so legally there are no norms binding indonesia to comply with the principle of non-refoulement (syahrin, et al., 2022). article 28g paragraph (2) of the 1945 constitution states that every person has the right to be free from torture or treatment that degrades human dignity and has the right to obtain political asylum from another country. this regulation is used as a legal basis for several parties to pressure the government to be proactive in dealing with asylum seekers and refugees who enter and live in indonesia. however, it must be understood that these legal norms are not binding. this provision cannot be interpreted as a state obligation to grant asylum to someone who is being persecuted in their country of origin. indonesia has only declared that the state recognizes the right to political asylum, but is not coercive to implement it in its national law. moreover, until now indonesia has not ratified the 1951 convention and the 1967 protocol, so whether article 28g of the 1945 constitution is adhered to or not will not have any implications. admittedly, the presence of asylum seekers and refugees in indonesia has threatened state sovereignty and disrupted public order. the existence of differences in culture, ideology, and political views causes their existence to be detrimental to indonesia https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 11 as a transit country. even though it has been explained that none of the articles in chapter xa of the 1945 constitution are absolute. everything can be limited and reduced if it turns out that the enforcement of these human rights actually threatens state sovereignty, including in this case the application of the principle of non-refoulement to asylum seekers and refugees. article 28j of the 1945 constitution explains that: (1) everyone is obliged to respect the human rights of other people in the orderly life of society, nation and state; (2) in exercising his rights and freedoms, everyone has the obligation to comply with the restrictions stipulated in the law for the sole purpose of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill just demands in accordance with moral considerations, values religious values, security, and public order in a democratic society. based on these provisions, there are six limits to the application of human rights in indonesia, namely: (a) law; (b) the human rights of others; (c) the interests of society, nation and state; (c) morality; (e) religious values; (f) security and public order. it is these limitations that must be considered in applying the non-refoulement principle. if it turns out to be causing more harm to indonesia, then there is no reason to expel asylum seekers and refugees from indonesia. indonesia has the principle of selective immigration legal policy which is based on expediency. this principle is regulated in part one of the explanation of law number 6 of 2011 concerning immigration, which means that only foreigners who are beneficial to the nation can come and live there. this principle places great emphasis on the following rules: (a) only useful foreigners may enter and reside in indonesian territory; (b) only foreigners who do not endanger security and public order may enter and reside in indonesian territory; (c) foreigners must comply with indonesian legal requirements; and (d) foreigners entering and staying in indonesian territory must be in accordance with their aims and objectives. according to this principle, only foreigners can contribute to the welfare of the populace, the nation, and the state, as long as they do not jeopardise security and law and order, and they do not harbour animosity towards indonesian citizens who wish to enter or leave its borders. even under another view, these foreigners’ movements must be consistent with state ideology and not pose a risk to the country’s unity. typically, all foreigners entering indonesian territory must have current, valid identification cards and visas. under the guise of the non-refoulement principle, asylum seekers or refugees do not get absolute guarantees to remain in indonesia when coupled to the principle of selective immigration policy. additionally, when implementing this selective policy, care must be taken to strike a balance between the security approach and the prosperity approach. in order to fulfil its obligations and perform its powers, immigration must give consideration to state sovereignty and security (sultoni and suryokumoro, 2013). https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 12 the next dialectic is what is the legal position of law number 37 of 1999 in handling refugees in indonesia? can this law be used as a legal basis for recognizing the principle of non-refoulement for refugees? this regulation determines that the regulation of asylum seeker and refugee issues is regulated in a presidential regulation. however, this regulation had never been formed until the enactment of presidential regulation number 125 of 2016 as a mandate from law number 37 of 1999. this means that for almost 17 years, indonesia has not had a regulation that specifically and comprehensively regulates this issue. then in 2011, the immigration law came into effect which divided foreigners into legal and illegal. this regulation does not regulate the protection and handling of asylum seekers and refugees from abroad. so the legal debate regarding the legality of both becomes a complicated matter. the immigration legal regime does not recognize their existence, but the foreign policy legal regime recognizes their rights as part of the subject of international protection. from the explanation above, it is clear that indonesian immigration law does not consider the principle of non-refoulement for refugees and asylum seekers. both should be treated the same as foreigners in general. deportation and criminal immigration investigations must be carried out if refugees and asylum seekers enter indonesian territory illegally. in addition, indonesia has not joined the 1951 convention, so international law applicable in the convention cannot replace domestic law (such as immigration law). the concept of non-refoulement cannot be applied to refugees and asylum seekers in indonesia using a legal substance approach (legal system theory) because this would violate indonesian immigration law. in handling asylum seekers and refugees, national interests must take precedence over global interests. there is no country above country. all countries have the same position, because they are limited by the sovereignty of their respective territories. indonesia must see how malaysia, thailand, the united states and australia treat asylum seekers and refugees who try to enter their country’s territory. these countries take a sovereign approach by optimizing border operations to prevent the entry of illegal immigrants. malaysia and thailand are not state parties to the 1951 convention (davies, 2008). so their stance is clear, namely rejecting the presence of asylum seekers and refugees. these two countries show a consistent attitude that state sovereignty cannot be intervened by international institutions. australia and the united states also displayed the same thing. despite being state parties, the two nations are currently firmly opposing the entry of refugees and those seeking asylum through varied border regulations. with his immigration policies, donald trump has continually rejected the presence of those seeking asylum. nevertheless, australia would sooner violate the 1951 convention’s article 33, paragraph 1, on the prohibition of refoulement than jeopardise its security or national sovereignty. despite not being a state signatory to the 1951 convention, the indonesian government adopted a different stance and instead used the principle of non-refoulement (syahrin, 2017). for several reasons, indonesia adheres to the non-refoulement policy. indonesia is a signatory to a number of international human rights accords while not https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 13 being a party to the 1951 convention. these safeguard the rights of refugees and forbid their repatriation to their home countries, when they risk persecution, torture, or grave human rights abuses. respecting the non-refoulement principle is a sign of indonesia’s adherence to humanitarianism and international law. indonesia assures that it does not add to the suffering of vulnerable individuals seeking sanctuary within its territory by adhering to the concept of non-refoulement. this demonstrates indonesia’s commitment to upholding the rights and dignity of refugees and asylum seekers, irrespective of their origins, country, or ethnicity. in the end, non-refoulement encourages a compassionate and human rights-based approach to refugee protection, which supports indonesia’s attempts to advance regional stability and cooperation. as a responsible member of the international community, it fortifies indonesia’s standing and advances the wider objective of resolving forced displacement and the refugee problem in the area and globally. 3.3. indonesia’s urgency to ratify the 1951 convention and the 1967 protocol countries that seek to become parties must fulfil a number of requirements outlined in the section describing the rights and obligations of state parties before the 1951 convention and 1967 protocol can be ratified. indonesia must take into account its domestic issues in addition to these needs. the author believes that indonesia delayed the ratification of this agreement for a number of internal reasons. indonesia must consider factors such as its capacity to accommodate refugees and asylum seekers, possible socioeconomic security problems, and indonesia’s national characteristics as a democratic country that upholds human rights principles. in addition to the factors mentioned previously, legal regulations must also be taken into account. presidential regulation number 125 of 2016 cannot answer the current refugee problem. this regulation still needs improvement so that the interests of all parties can be accommodated. then, coordination between institutions in the field is hampered due to the egocentrism of stakeholders. for example, local governments often refuse to assume additional responsibilities related to the arrival of refugees in areas they control. the striking differences between local culture and refugee culture have the potential to trigger public unrest. apart from that, there will be a new burden if the assimilation process occurs between refugees and the local population because children resulting from assimilation are not included in repatriation or resettlement (syahrin, et al., 2022). due to its strategic location between two seas and two continents, indonesia serves as a transit country for refugees from the asian continent, the majority of whom travel on to the australian continent. the refugees who come have various backgrounds or goals. there are refugees who come to indonesia for economic reasons or purely in search of life safety (avoiding armed conflict and human rights violations) (kranrattanasuit, 2023). the economic crisis which has resulted in a decline in the level of welfare and security in many countries, and an increase in the poverty rate as well as globalization and access to information facilitates the ongoing evacuation, especially those carried out illegally (illegally). the limited security of indonesia’s maritime borders increases the chances of illegal refugees entering this vast archipelagic nation. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 14 the 1951 convention on refugees outlines a number of fundamental liberties and rights that refugees urgently require. these rights and obligations must be carried out by all parties to the convention. there are stages that must be carried out by the state party. first, refugees who enter a country without their complete documents will not be penalized, as long as they report themselves to the local authorities as soon as possible. usually in every country there is its own processing center which is not mixed with immigration quarantine even though both are managed by the same agency that specifically handles foreigners. second, there is a prohibition for parties to return refugees or those who claim to be asylum seekers to their country of origin by force. this refers to the non-refoulment principle, which states parties are obligated to uphold, which prohibits sending refugees back to their place of origin if they fear for their safety and freedom. a law governing the treatment of refugees is required in order to uphold their rights and obligations. state parties that are participants in the 1951 convention are required to make the majority of this rule. law no. 6 of 2011 governing immigration is in effect despite the fact that indonesia is not a signatory to the 1951 convention. in regards to the provisions for foreigners, it is stated in article 1 paragraph (9) of law number 6 of 2011 concerning immigration that foreigners are those who are not indonesian citizens. a refugee or asylum seeker who refers to law number 6 of 2011 concerning immigration is still considered to fall under the broad group, which is represented by the term “foreigners.” indonesia has not accepted the 1951 convention as a result, as there are still national legal frameworks in place that govern refugee issues. the 1951 convention was the first international agreement to address the most crucial facets of a refugee’s existence, making it crucial to ratify. the agreement also provides a minimum set of rights that must be granted to refugees, including receiving the same treatment as other foreign nationals in the host country and, in many situations, the same treatment as native-born citizens. the bare minimum of rights acquired includes: (a) the right not to be repatriated to a country where the refugees have reason to fear persecution (article 33); (b) the right not to experience expulsion, except in certain very clear circumstances (article 32); (c) exemption from the penalty for illegally infiltrating a state party to this convention (article 31); (d) right to work (article 17); (e) the right to own a house (article 21); (f) right to education (article 22); (g) the right to obtain public assistance (article 23); (h) the right to freedom of religion (article 4); (i) the right to obtain legal services (article 16); (j) freedom of movement within the territory of the state (article 26); (k) the right to obtain an identity card (article 27). in fact, indonesia still finds it challenging to ratify the 1951 convention because there are several articles that are thought to be very difficult to implement. if indonesia becomes a state party to the 1951 convention, then indonesia must implement the provisions stipulated in the 1951 convention as in the article mentioned above in order to achieve the rights of refugees. the indonesian government is taking into consideration articles 17 and 21, which deal with the right to work for refugees and the right to a house, respectively. the contracting state shall give to refugees lawfully..., with respect to the right to engage in wage-earning employment, as stated in article 17. given that indonesia is a developing nation with a high rate of unemployment and this article’s requirement that https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 15 states parties to the convention provide work for refugees, it is thought to be too onerous for the indonesian government. additionally, the per capita income of the indonesian population is also deemed insufficient. apart from that, article 21 contains “as regards housing, the contracting states, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees legally staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.” there is a clause regarding housing for refugees in that article, and it is likewise seen to be exceedingly difficult for the indonesian government to implement. in addition to indonesia’s high poverty rate, the country still has many underdeveloped areas that require proper infrastructure from the central government. as a result, any policies the government adopts to provide facilities in the form of homes for refugees are wholly inappropriate and still far from indonesia’s status as a developing nation. other sections of other 1951 convention articles are still applicable if applied by the indonesian government, however if implemented, they may also result in inequalities for indonesian society. these clauses are found in article 4’s right to freedom of religion as well as article 22’s right to education. the indonesian government can genuinely make this happen by implementing the right to education for refugees outlined in article 22. some of the refugee children in cianjur, west java, have been able to receive a rudimentary education there, although only up to the level of elementary school. however, the policy to provide education for refugees up to secondary level or tertiary level is highly unlikely to be implemented, bearing in mind that there are also very few indonesians who can pursue higher education, moreover the education rate is quite expensive (missbach, 2014). the indonesian government has the authority to carry out the provisions of article 4 relating to refugees’ rights to freedom of religion, but there are a number of factors to take into account before doing so. first of all, indonesia only recognises six different religions. the indonesian government is concerned that if these provisions are implemented and there are refugees who follow a religion or belief that indonesia does not recognise, there may be conflict between religious communities. there are also non-juridical provisions which are taken into consideration that the indonesian government has not ratified the 1951 convention. several parties did not want indonesia to have to ratify the convention (tobing, 2021). in general the arguments of the parties were that first they argued that the 1951 convention was an old product, because the convention was signed in 1951 and at first the convention was made only to deal with events before january 1, 1951 that happened in europe, the 1951 convention emphasized more on dealing with the problem of residues from world war ii . then there is the opinion that the complexity of the flow of irregular population movements or what is commonly called irregular migration, and the rules contained in the 1951 convention are considered insufficient or no longer sufficient (kristin and dewi, https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 16 2021). many other countries consider why they should ratify the convention and use a legal framework that has been largely abandoned. in addition, the 1951 convention is no longer able to provide a solution to the current complexity of illegal migration, especially the case of refugees in indonesia. there are also many cases of refugees who leave their country solely because of economic problems, then they move to another country illegally and they claim they are asylum seekers and they state various reasons so that they get mercy from the country they are going to or the country they are traveling to. skip, while the 1951 convention does not set up in that direction. then on the other hand, the current system in indonesia, although not yet formally legal, is categorized as indonesia being able to respect the main principles contained in the 1951 convention, namely the principles of non-refoulment, non-ciminalization, and nondiscrimination. according to international rules, at least indonesia has respected these three main principles. in essence, the indonesian government does not return them to their country of origin (listriani and kadir, 2020). indonesia does not punish those who commit immigration violations, does not discriminate against them, or discriminates against them among refugees and asylum seekers. when it comes to legal protection for refugees, one of the most fundamental safeguards is the ability to prevent their arbitrary return to nations where they run the risk of persecution. this idea, also referred to as the non-refoulement principle, is frequently cited as the cornerstone of global refugee protection. the 1951 convention’s article 33, paragraph 1 provides a detailed explanation of this right. none of the contracting states shall expel or return a refugee in any way to the borders of the territories where his life or freedom would be threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion. the fundamental tenet of refugee law, as stated in article 33 of the 1951 convention, bans the state from deporting or sending a person back to their place of origin if doing so will put their life and freedom in danger. the author argues that if indonesia applies the principle of non-refoulement, it will affect the stability of the country’s sovereignty. taking in foreign refugees could provide indonesia with a number of difficulties and risks related to social, economic, and security concerns. resources and infrastructure are under pressure, particularly in places where there is a high concentration of refugees. this could worsen already-existing conflicts and socioeconomic inequality. the flood of refugees may exacerbate anti-immigrant emotions and xenophobic views in several spheres of society, resulting in social unrest and tensions amongst communities. arrivals of refugees may also bring security problems, such as possible infiltration by criminal organisations, human trafficking rings, or extremist organisations preying on weaker segments of society. https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 17 for the implementation of the principle of non-refoulment for refugees who are in transit in indonesia, it can be seen that the indonesian government still provides opportunities for refugees to remain in indonesian territory, especially in the process of determining the status carried out by unhcr. the process of granting status and finding a third country for refugees does take quite a long time, but the indonesian government also does not repatriate these refugees. from the actions taken by the indonesian government, the indonesian government has been able to implement the non-refoulment provisions of the 1951 convention (prabaningtyas, 2019). though many other rights have not been realised and are still challenging to put into practise, it is crucial to note that the indonesian government has been able to uphold the three most crucial principles of the 1951 convention, namely not to repatriate (non-refoulment), non-expel (non-expulsion), and non-discrimination. 3.4. comparison of refugee handling laws in several countries 3.4.1. australia australian rules for handling cases of asylum seekers and refugees have undergone a very protracted process of formulation and implementation. the policy of handling asylum seekers received attention, when the position of prime minister was held by john howard. in 2001, howard initiated a programme known as operation relex to stop unauthorised ships from entering australian territorial seas and asylum seekers (and people traffickers) from trying to enter australia. by intercepting, arresting, and blocking ships carrying individuals attempting to enter australia without a visa, operation relex protects australia’s maritime borders. then several other policies were implemented to prevent the arrival of refugees, namely pacific solution, offshore processing, and provision of temporary protection visas for refugees (ford, et.al., 2010). additionally, under kevin rudd’s leadership, the approach to treating asylum seekers changed to border security measures intended to obstruct people traffickers’ operations. asylum seekers arrived in increasing numbers at this time. australia spends a lot of money on these asylum seekers as a result of how they are handled. the large amount of budget spent on the policy of handling asylum seekers has caught the attention of australian leaders and prospective leaders. at this time the australian government also issued a controversial policy in dealing with asylum seekers, namely sending asylum seekers who came to australia by sea to the nearest country, in this case papua new guinea and the nauru islands in the pacific. this policy is intended to address the large number of asylum seekers in australia. for its role in the asylum plan, papua new guinea will receive a large amount of financial assistance. then, from 2010 to 2012, australia introduced a number of refugee and asylum seeker-related policies under the direction of prime minister jullia gilliard. the australian government has implemented a number of policies to address the problem of unauthorised maritime arrivals, such as the pacific solution, mandatory detention, enforcement of bridging visa, return of asylum seekers to their country of origin, and malaysia solution. under julia gillard’s leadership, the entire australian government’s stance tended to be punitive or punish https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 18 asylum seekers who arrived by boat without legal documentation. the above-mentioned policies developed by the australian government are political process-influenced policy products. the department of immigration and citizenship, under the auspices of the australian government, is in charge of overseeing border security for all immigrant arrivals from abroad. this department is in charge of formulating australian immigration laws, including the power to judge whether immigrants are admitted legally. the australian prime minister and minister of immigration established an expert panel on asylum seekers to address the issue of asylum seekers arriving by boat. the panel’s role is to offer reports on potential government solutions. the expert panel was created with the intention of giving government policymakers advice and suggestions on how to stop the boat migration of asylum seekers by utilising the principle of disadvantage. the australian government is attempting to convey to asylum seekers that it is pointless to attempt to obtain refuge without using the mechanisms that have been provided, which is why the principle of incapacity exists. then finally during the current leadership of tony abbott, the handling and formulation of policies related to refugee protection tended to decline. this is evidenced by the many rejections of refugees and asylum seekers and australia’s fear of the crime of trafficking in persons that might occur, and tend to only think about the national aspect, without paying attention to the existing humanitarian aspects. australia also has time to modify its asylum seeker policy so that people coming by boat on the mainland may be deported to papua new guinea or nauru island in the pacific, for example. earlier immigration processing remedy. when refugees arrive in isolated island regions like christmas island, the australian government has the right to deport them to a prison facility on nauru. this rule has been in place since the middle of 2013. according to the australian government’s most recent initiative, which involved changing the immigration law, provisions for the issuance of temporary visas for refugees were added. the law permits refugees to reside in australia for three to five years at that location. this visa, however, bans individuals arriving by boat from settling permanently in australia because the australian government will not offer permanent protection. a growing number of refugees and asylum seekers are entering australia as a result of it becoming a destination nation. the amount of money needed to handle refugees on an annual basis has always been an issue. as long as boats are still being used to enter australia illegally, these costs will continue to rise. in order to more effectively reduce the costs already incurred, the australian government believes that stopping the arrival of illegal vessels will be more successful. australia joined the 1951 convention on the status of refugees as a state party. australia has the authority to set its own refugee handling policy because it is a participating nation. australia is also given the right to make reservations for several articles in the convention and the freedom to provide protection to anyone who requests asylum. as a participating country, australia has the obligation to provide facilities for refugees, as https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 19 well as fulfill the rights granted by the convention to refugees. australia is also required to cooperate with unhcr in dealing with refugees and is burdened with the obligation to always inform all regulations related to refugees to the un secretariat general. sovereign border operations is a form of rights exercised by australia as a contracting state to the convention. australia made this policy to reduce the number of asylum seekers entering by sea. australia’s policies include: (a) operation relex, a plan to stop ships transporting people who want to enter australia without a visa by intercepting, holding, and stopping them from leaving port; (b) pacific solution offers temporary protection visas for refugees and offshore processing. on several occasions, policies issued by australia do not have standard protection for asylum seekers. under this new australian policy, boat people coming to australia will be sent directly to papua new guinea and if possible will live there. kevin rudd stated that asylum seekers would not be resettled in australia but directly to papua new guinea. he announced this new policy in brisbane with the prime minister of papua new guinea, peter o’neill. according to him, this decision was taken to ensure border security. the policy also aims to stop people from taking the risk of going to australia by boat. according to him, the new approach will enable australia to assist more people in need and stop people traffickers from abusing our legal system. from now on, any asylum seeker arriving by boat will not be given the opportunity to live in australia as a refugee. the minister of immigration, tony burke stated that this regulation came into effect for boats arriving in australia from the time they were in the border waters. this news comes at a time when rudd is conducting a policy overhaul for asylum seekers regarding the upcoming elections. australia has faced the problem of increasing numbers of asylum seekers arriving by boat in recent months. in preparation, the offshore processing center on manus island in papua new guinea will be expanded to accommodate 3,000 people. australia has promised to provide assistance to papua new guinea, including in the field of building hospitals and universities. asylum seekers are a very serious problem for australia. ships arriving in australia have increased rapidly in the last 18 months, mostly containing asylum seekers from iraq, iran, sri lanka and afghanistan. most of these ships were overcrowded and in poor condition, so many sank. the ship stopped in indonesia and from there headed to christmas island, the australian region closest to java (kneebone, 2017). the papua new guinean court system, according to the unhcr, is severely understaffed to handle the influx of asylum seekers. every year, thousands of people seeking refuge attempt to travel to australia by sea. according to unhcr, australia’s regional settlement agreements with the government of papua new guinea present important problems that have not been fully addressed to yet. papua new guinea is now not prepared to accommodate asylum seekers, according to the un, because of a lack of managerial capacity, expertise, and physical circumstances. unhcr stated that australia’s new policy has operational, legal, and policy issues. according to richard towle, a unhcr representative, the decision to remove (asylum seekers) did not relieve australia of its obligation to offer additional protection. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 20 prime minister kevin rudd has issued a new policy regarding asylum seekers. he claimed that the new system would give smugglers a loud and unambiguous warning to stop bringing people into australia. this country was then criticized because it was considered to be avoiding responsibility and shifting its problems to developing countries. for the record, there has been no direct implementation of the model for handling refugees in australia by indonesia to date. even though indonesia and australia are two countries that are close to each other and have a number of intersecting refugee problems, they both have different approaches to handling refugees. australia has a strict policy against refugees who try to enter the country illegally via waterways. this policy is known as the operation sovereign borders policy, which includes placing refugees in holding centers outside australian territory, such as on nauru and manus island in papua new guinea. meanwhile, indonesia, as a transit country, is often a stopover place for refugees on their way to australia or other countries. the indonesian government is working with unhcr and international organizations to provide temporary protection and basic services to refugees in its territory. it is important to note that refugee issues and migration policies can be very sensitive and change over time. the two countries continue to strive to increase cooperation and dialogue to overcome this problem at the bilateral level and in the context of regional cooperation, such as the pacific development cooperation forum. 3.4.2. singapore refugee migration in the southeast asia region is increasing, due to conflicts in several countries. in light of the current refugee crisis, the government of singapore and the unhcr came to an agreement on a strategy that would give refugees access to international protection. while unhcr intends for more permanent resettlement, singapore is acting as a transit camp for refugees as a temporary sanctuary. members of the committee decided to implement a new strategy known as the comprehensive plan of action at the conference on indochina in 1989. the singapore transit camp endured severe hardships. singapore continues to welcome new immigrants under its new refugee screening process, although recent admissions do not ensure resettlement, even temporarily. today, rejected asylum applicants gather in the singapore transit camp, many of whom are unwilling to leave on their own volition. many refugees protested against unhcr, participated in hunger strikes, or even attempted suicide as a result of the danger of being sent back home. officials from the singaporean government dismantled the camp in 1996 and vowed that refugees would no longer be permitted in singapore, even if other nations pledged to take them in, feeling misled by the resettlement countries and troubled by the entire experience (davies, 2008). singapore has maintained this policy for many years, stopping refugees at the shoreline and sending them away after giving them food, drink, and gasoline. singapore’s refugee policy has, nevertheless, gradually loosened in recent years. singapore’s prime https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 21 minister lee hsien loong raised the matter of looking for rohingya in 2009. singapore cannot accept asylum seekers, but will provide humanitarian aid so they can leave for other countries, according to a minister of state for international affairs. despite singapore’s unpleasant historical experiences with refugees, the government offers another justification for not welcoming newcomers. singapore is one of the most populated and second-smallest countries in asia. refugees will undoubtedly increase the strain on the nation’s infrastructure. aside from singapore’s experience of accepting refugees in the past, their reason for rejecting refugees and asylum seekers is because of the narrowness of their territory because their land is only 715 kilometers and has a population of 5.47 million. with that, they reasoned that because of the narrow area, they refused the arrival of refugees or asylum seekers. since singapore truly intends to raise its population from roughly 5.5 million to 6.9 million by 2030, there is no justification for turning away refugees. this expansion was anticipated in the singapore population white paper of 2013, which made the case that the country’s land area had increased by 23% since 1965 and that the population growth was sustainable due to steadily growing investments in infrastructure and land capacity. up until today, singapore has been one of the several southeast asian nations that has refused to accept refugees. singapore may have, however, been able to get past its past interactions with refugees. with a special chapter devoted to advocates for refugees in singapore (afrsg), unchr started a new campaign in 2016 to persuade governments all around the world to join the battle to end citizenship. singapore’s refugee acceptance policy is still far from being changed. but it is possible to make progress towards finding homes for the millions of people still leaving the country without a state with the ongoing work of unchr, afr-sg, and anybody else who is taking the time to help. the singapore government has emphasized that its country cannot accept the arrival of refugees from rohingya to enter their country. quoted from the straits times, singapore’s senior minister of foreign affairs, balaji sadasivan said that his country was constrained by the size of the area to accept refugees. the singapore government was once pressured by unhcr to help rohingya immigrants who were adrift in the middle of the ocean. however, this request was rejected by singapore. the singaporean government has promised to help rohingya immigrants but not in the form of providing land. instead, assistance in the form of food, medicine, and medical personnel. 3.4.3. malaysia the malaysian government has a policy of freeing foreigners from having visas to several islamic countries such as iran, iraq, afghanistan, srilanka and granting them visas upon arrival. this opportunity was used by refugees who came from conflict countries to enter malaysia legally and finally they got refugee status from unhcr in that country. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 22 the malaysian government takes tough measures against those who already have refugee status and those who do not have status. those who work illegally, if caught are often treated harshly by the malaysian government by putting them in prison. malaysia is a country that has an open policy and a silent policy regarding the handling of refugees. this means that malaysia does not hold back the entry of refugees, but also does not give priority rights or special attention to this problem. one of the reasons for malaysia implementing an open policy is because they see the other side of the refugees. the policy taken by the malaysian government is to implement an open policy and a silent policy regarding the handling of refugees.4 in that sense , the government of malaysia implements a policy that does not restrain the entry of refugees, but also does not give priority rights or special attention to the problems of refugees and asylum seekers. the malaysian government has a policy of freeing foreigners to have visas for islamic countries such as iraq, iran, afghanistan, sri lanka and giving them visas upon arrival to malaysia. their arrival came to malaysia legally and finally received status from unhcr as refugees. they are there waiting for resettlement to a third country. the other side is cheap labor. we know, if malaysia needs a lot of manpower for development, then, they need cheap labor and don’t need to be given protection obligations. so, refugees are the right choice. however, malaysia also has a positive policy to deal with refugee problems. one of them is the plan to grant work permits in 2004 which will be given specifically to rohingya refugees. however, this plan has not been implemented so far. despite being a recipient country, malaysia does not have clear rules regarding the handling of refugees. even though malaysia is not a nation that has joined the 1951 refugee convention and 1967 protocol, malaysia adheres to the principles and follows the rules set forth by unhcr in dealing with instances of refugees and asylum seekers. to address the rising number of refugees and asylum seekers entering malaysia. malaysia developed a ground-breaking policy to allow refugees who have had unhcr cards to work there for up to three years in certain manufacturing and plantation industries. the malaysian government also permits refugees and asylum seekers to attend nongovernment educational institutions like private schools. the malaysian government is working with unhcr in the field of application and production of unhcr cards, but the determination of refugee status remains unhcr’s responsibility. in malaysia itself there is also an agency namely iom malaysia which handles and provides protection for refugees and asylum seekers. 4 indonesia also implemented an open policy, by issuing presidential regulation number 125 of 2016 and several other regulations. indonesia adopts humanitarian values so that refugees during the waiting period in indonesia can be given their basic rights until they are transferred to a third country. https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 23 the malaysian government’s immigration policy is implemented by the malaysian immigration department under the ministry of home affairs. in essence, the malaysian government’s immigration legal politics was imposed to protect the territorial integrity of immigration duties in developed countries. approach to security and in carrying out immigration duties in relation to law enforcement, the position of malaysian immigrants gives rights to officials to search and arrest criminal acts committed by foreigners. even though malaysia is not a nation that has joined the 1951 refugee convention and 1967 protocol, malaysia adheres to the principles and follows the rules set forth by unhcr in dealing with instances of refugees and asylum seekers. as a result of the growing number of refugees and asylum seekers entering malaysia. malaysia implemented a pioneering policy of working for refugees who hold unhcr cards. they can work in malaysia in parts of the manufacturing and plantation sectors for a maximum of three years. additionally, the malaysian government permits refugees and asylum seekers to attend private schools or non-government educational institutions. the malaysian government is working with unhcr in the field of application and production of unhcr cards, but the determination of refugee status remains unhcr’s responsibility. malaysia itself also has an agency, namely iom malaysia, which handles and provides protection for refugees and asylum seekers. at first malaysia refused the arrival of refugees just like indonesia, but there were causal factors that made malaysia change its policy which initially rejected the rohingya refugees, finally accepting them to come to malaysian territory. factors for changing the policy are : (a) internal factors. the malaysian government is assisting the rohingya refugees so that there are no longer actions that should not occur in accordance with human rights. the attitude of the malaysian people as a country in the southeast asian region that upholds human values and has a muslim majority population has prompted nongovernmental organizations (ngos) to organise protests outside the myanmar embassy in kuala lumpur, so that malaysia, which is predominantly muslim, can help contemplate the fate of the rohingya muslims, such as helping in the form of temporary housing for them. as a place for them to carry out their activities as refugees and asylum seekers in that country. (b) external factors. international pressure has made malaysia no longer reject rohingya refugees. foreign policy contained in richard synder’s theory in foreign policy decisions that affect a country in making and determining a policy. international pressure comes from the united nations which wants to achieve peace with its policy so that the states of southeast asia, especially malaysia, can accept and help rohingya refugees (prabandari and adiputera, 2019). malaysia changed its policy to become a country that is willing to accept the arrival of rohingya refugees. the united nations obliges all of its members to create stable and prosperous conditions necessary for the creation of peace between nations. many of the refugees and asylum seekers work illegally in malaysia. therefore the malaysian government strictly prohibits both refugees and asylum seekers who work in malaysia and arrests them and finally puts them in jail. https://doi.org/10.17561/tahrj.v22.8255 table 1. c om parison of r efugee h andling r egulation in several c ountries a ustralia singapore m alaysia indonesia states parties to the 1951 c onvention yes n o n o n o a pplying the principle of n on-r efoulem ent n o n o n o (c onditional) yes policy c losed c losed c losed (c onditional) o pen a pproach m odels security protection, selective, prevention, enforcem ent security protection, selective, prevention, enforcem ent security protection, selective, prevention, enforcem ent r esponsive, h um anist, em pathic, perm issive, tolerant g overnm ent l egal policy o peration sovereign border o peration r elex pacific solutions m andatory d etention turn back boat resettlem ent to third c ountries a pplication of bridging visa o ffshore processing provision of tem porary protection v isas for r efugees o peration sovereign border turn back boat law enforcem ent o peration sovereign border pioneer policy a ccepting asylum seekers and refugees to be used as cheap labor law n um ber 37 of 1999 concerning foreign r elations presidential r egulation n um ber 125 of 2016 h andling r efugees from a broad r egulation of the d irector g eneral of im m igration n o. im i0352. g r .02.07 concerning h andling of illegal im m igrants d eclaring theirself as a sylum seekers and r efugees r egulation of the d irector g eneral of im m igration n um ber: im i 1487.u m .08.05 of 2010 concerning im plem entation of h andling illegal im m igrants d irector g eneral of im m igration letter n um ber: f4.il.01.102.198 year 2001 concerning illegal m igrants / asylum seekers d irector g eneral of im m igration letter n um ber: f.il.01.10-562 of 2001 concerning h andling of illegal im m igrants from south a sia d irector g eneral of im m igration letter n um ber: f-il.01.10-1297 of 2002 concerning h andling of foreigners d eclaring h im self as a sylum seekers or r efugees o ffice letter of the d irector g eneral of im m igration n um ber im i g r .02.03-1910of 2018 concerning c hanges to the policy for h andling a sylum seekers and r efugees by the international o rganization for m igration (io m ) service letter of the d irector g eneral of im m igration n um ber im i u m .01.01-2827 of 2018 concerning r eturn to the functions of the im m igration d etention c enter source: ow n elaboration m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 25 based on the description above, it can be understood that singapore has a comprehensive and holistic immigration policy, including in terms of handling refugees. the following are some similarities between refugee policies in singapore and malaysia that have been implemented by indonesia: (1) not signing the un refugee convention. singapore is not a party to the un refugee convention. therefore, there is no legal framework that specifically regulates the status and rights of refugees in singapore. (2) strict immigration conditions. singapore implements strict immigration policies to maintain social, economic stability and national security. this includes managing refugee problems. (3) placement in detention center. people identified as refugees and entering singapore without permission can be placed in temporary detention centers while the government determines their status and next steps. this detention center aims to ensure security and compliance with immigration regulations. (4) assessment and status determination process. singapore has an assessment process to determine the immigration status of every individual, including those claiming refugee status. however, this process is carried out in accordance with singapore’s national laws, not under the framework of the un refugee convention. (5) international cooperation. although singapore is not a party to the un refugee convention, the country is involved in international cooperation to address regional immigration and security issues. singapore can work together with neighboring countries and international organizations to tackle the refugee problem.it is important to remember that government policies may change over time and in response to specific situations. as a country that has a strict policy towards immigration, including refugee issues, each country often emphasizes the importance of maintaining stability and security in the context of its policies. 3.5. human rights advocacy as a basic instrument for protection and empowerment of refugees human rights education, according to the human rights educator’s network of amnesty international usa, is an expression of adherence to the universal declaration of human rights, promotion of democratic principles, and initiatives to advance the critical thinking and communication skills necessary for democracy. the unhcr describes human rights education as programmes of instruction and information-sharing intended to create a global culture of respect for human rights by educating individuals, developing their abilities, and influencing their behaviour. in essence, the universal declaration of human rights guarantees that everyone has a right to know what those rights are. learning about human rights and learning for human rights are the two main goals of effective human rights education. learning about human rights is cognitive and related to information about those rights, such as the history of those rights, relevant legal documents, and methods for obtaining justice when those rights are violated. meanwhile, learning for human rights is a form of internalizing human rights principles which is translated into action. the combination of these two objectives will contribute to increasing knowledge and capacity regarding human rights and creating a culture of tolerance, respect for rights and a sense of solidarity which is manifested in the form of actions to protect the rights of oneself and others (nola, 2021). in addition to imparting knowledge about human rights and the safeguards for them, effective human rights education also develops the abilities to defend and uphold human rights in daily life. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 26 furthermore, the united nations declaration on human rights education and training categorizes education through human rights as one part of human rights education which aims to build a learning and teaching atmosphere that respects the rights of teachers and students, thereby creating a conducive space to grow for both. effective human rights education can contribute to preventing human rights violations, increasing public participation from communities receiving education, and strengthening their capacity to use a human rights framework in advocacy. the issue of refugees in indonesia continues to be a non-priority issue, this can be seen from the slow development of laws and regulations related to refugee issues in general, as well as the lack of initiatives by stakeholders such as the government, the business sector, and even civil society organizations. the lack of attention from stakeholders related to refugee issues has contributed to the stagnation in the development of protection of refugee rights due to weak public pressure to bring about structural changes. the lack of attention to refugee issues can also be seen from the limited access to human rights education for refugees in indonesia (brown, 2018). refugees face major challenges in accessing formal education, especially one that has a human rights curriculum in indonesia. this causes non-formal human rights education to be crucial to develop in order to overcome the narrow access to increase awareness of the rights of refugees in indonesia (missbach and cameron, 2022). until now, efforts to increase awareness of rights specifically aimed at refugees have only been carried out by a handful of civil society organizations in indonesia, including through legal and human rights training for refugee paralegals conducted by suaka, advocacy and human rights training by jesuit refugee service indonesia, and sexual and gender based violence (sgbv) training by the sisterhood in 2021. trainings carried out by civil society organizations certainly have limited reach and resources, so not all refugees in indonesia have the same opportunity to involved in human rights education. several organizations led by refugees (refugee led organizations or rlos) have established learning centers aimed at responding to situations of limited fulfillment of the right to education for refugee children in indonesia. until now, rlos and refugeeled initiatives (refugee led initiatives or rlis) are growing, demonstrating an increase in the capacity of refugees to empower themselves and their communities in indonesia. however, the majority of education offered by rlos and rlis is targeted so that refugees can survive (training in basic science, language and technology), be vocational and have a more meaningful life by engaging in productive activities. in 2020-2021, there has been an increase in the involvement of refugees in carrying out advocacy related to the situation of unclear fate in indonesia for many years. in these two years, there has been an increase in the frequency of demonstrations carried out by refugees to accelerate resettlement to third countries, improve performance services from unhcr indonesia, and protect their rights in indonesia. however, it is not uncommon for disputes to occur between demonstrators and security forces and law enforcement officials as a result of demonstrations, especially during a pandemic. https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 27 apart from that, the refugees also carried out unreasonable actions which were suspected as a result of the deteriorating mental health of refugees who lived without clarity. since 2018, at least thirteen afghans in indonesia have committed suicide due to the long settlement process, financial problems, fears for the future and anxiety. several evacuees carried out the act of setting themselves on fire, one of them in the city of medan in 2021 due to depression and stress. in the city of pekanbaru in december 2021, several refugees held a demonstration of sewing their mouths as a form of protest against unhcr indonesia (adhaniah, et.al., 2021). various advocacy efforts carried out by refugees show an increase in advocacy knowledge, but it is also a form of despair from a situation that has not changed. currently, the majority of refugees still rely on demonstrations as their main advocacy method. however, the involvement of refugees to sit down with stakeholders and decide on the desired changes is still far from materializing. for example, refugees have not been actively involved or involved in policy advocacy related to the handling of covid-19, which should place refugees as a priority group due to their vulnerability. however, advocacy was carried out by other actors such as unhcr indonesia, the international organization for migration (iom) and civil society organizations, without substantively and meaningfully involving refugees. the refugees are placed as mere beneficiaries, not part of the decision makers. referring to arnstein’s ladder of participation theory, the involvement of refugee groups in decision-making in indonesia is still far from the highest level. some of the efforts made by stakeholders stop at the informing stage (third step) or consultation (fourth step). as a practitioner in refugee issues, the author observes that the involvement of refugees in the policy advocacy process is still lacking. some of the biggest challenges in involving the refugee community in the policy-making process are the language limitations of both refugees and stakeholders (including the government), as well as the limited knowledge of refugees regarding the process of forming policies/legislation. in this situation, it is important to expand access to human rights education for refugees in indonesia to help refugees be able to carry out advocacy more effectively, safely, and contribute to realizing structural change. human rights education can strengthen the bargaining power of the refugee community to be able to increase their participation in decision making. rather than that, the impact of human rights education for refugees can contribute to strengthening community activism and increasing the ability to articulate their condition in indonesia to strengthen public support (dewansyah, et.al., 2017). empowering refugees through human rights education can enable them to carry out advocacy directly without having to be represented by another party, become part of the decision makers and increase the sensitivity of the indonesian people and stakeholders to their unprotected rights. regarding the issue of refugee children’s education, there have been concrete actions to make this happen based on the international organization for migration letter number 119/tng/vii-2017 of 2019. through this letter, iom asks the government to provide educational facilities for refugee children. then, the government issued decree https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 28 of the ministry of education and culture of the republic of indonesia number 75253/a. a4/hki of 2019. based on this letter, the government has approved the provision of educational facilities for refugee children. for example, in 2016, the government provided scholarships for 100 syrian refugee students to continue their education at university. providing this scholarship is indonesia’s effort to be actively involved in helping ensure the educational rights of refugees affected by the syrian conflict. educational assistance is provided through a scholarship scheme from the education fund management institute, ministry of finance. another example, the international program of communication study (ipcos) muhammadiyah university of yogyakarta also helps overseas refugees to obtain the right to education through the 2022 summer course program which will be held from 11 july to 15 august 2022. the 2022 summer course program for overseas refugees is the result of collaboration between ipcos umy and the international organization for migration (iom) in indonesia which was attended by 33 participants from bangladesh, sri lanka, myanmar and somalia. 3.5.1. human rights and advocacy training for refugees this training is an alternative form of human rights education that can be carried out by the government, the business sector, international organizations, and civil society organizations in indonesia. however, it is important to ensure that the information submitted is ideal rights information and generally complies with international standards. given the position of the indonesian government which often states that it has no obligation to fulfill refugee rights, this form of human rights education can be optimized by international organizations and civil society organizations. expansion of human rights and advocacy training needs to be done not only to provide human rights theories, history, available mechanisms and related documents, but also to build a culture of human rights in refugee communities, increase the ability to think critically to act to protect their rights and that of others. human rights educators need to conduct a needs assessment of the displaced community in order to determine the most effective facilitation methods to maximize limited resources. in addition, community involvement in training planning and during implementation is an important element in empowerment work that must always be considered. currently, the national research and innovation agency of indonesia is working with stakeholders to develop a legal framework for empowering refugees during the waiting period in indonesia, such as informal education and skills training. 3.5.2. human rights learning communities refugees are the ones who know the situation of themselves and their communities best, so they know the best way to solve the problems they face in indonesia. in empowering oneself, forming a community to learn human rights is important because it can create an open environment for every refugee, making them feel safe to exchange ideas and relate to one another. https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 29 this community can take the form of rlos rlis with specific goals, as well as book clubs or debates related to human rights issues. the nature of this community is very fluid and needs to be adapted to the interests of each community. the formation of this community can overcome the language barrier because it is assumed that the refugees can communicate well with each other. in its activities, the community can invite human rights practitioners to discuss and exchange views regarding the situation of refugees in indonesia. the development of human rights values and the creation of a culture of human rights in the refugee community are outcomes of the construction of this community. a human rights learning community’s presence can also help the refugee community develop its leaders. 3.5.3. strengthening rlos rlis and learning centers to add refugee human rights issues as a priority agenda in providing education, rlos rlis and learning centers can include human rights subjects. refugees have been in indonesia for a long time, so it is important that human rights education is instilled in young people from an early age. the introduction of human rights from the beginning is a step to prevent human rights violations and the establishment of a culture of human rights. in practice, rlos rlis and learning centers can work together with other stakeholders to design curricula and present resource persons who understand the context of refugees and human rights. when refugees in indonesia are more empowered, they can advocate for the protection of their rights to the indonesian government and return the obligation to respect, protect and fulfill their rights to the state. 3.6. moderate solutions to fulfilling refugee rights during the resettlement process in indonesia the following options can be taken into consideration by the indonesian government to improve the welfare of refugees there. first, relaunch the national action plan for international human rights. naphr is a document that contains goals, strategies, and a focus on priority activities for indonesia’s human rights agenda. it is used as a reference for ministries, institutions, and local governments in implementing respect, protection, fulfilment, enforcement, and promotion of human rights in indonesia, according to article 1 paragraph 2 of presidential regulation number 75 of 2015. the focus of naphr issues is updated every five years. in the period 2021-2025, naphr focuses on four vulnerable groups, namely women, children, persons with disabilities, and indigenous peoples. this latest naphr does not include refugee groups. in fact, indonesia once included the 1951 convention and 1967 protocol in the list of priority international agreements in the 2010-2014 naphr. however, the ratification of the two international refugee law instruments was hampered because there were pros and cons. the government is of the view that the mandate of the convention which obliges the fulfillment of refugee rights is too burdensome for the indonesian economy. this long debate has resulted in the two documents not being ratified until now. in this way, indonesia’s 2010-2014 naphr, which should be able to deal with refugee welfare issues, has failed to be achieved. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 30 reflecting on indonesia’s failures in the previous period, this country still has to re-launch the refugee issue to be included as the focus of the next naphr period. based on article 3 of presidential regulation number 75 of 2015, the inclusion of refugee issues as the focus of naphr is expected to integrate the central and regional governments to commit to handling refugees, especially with increasingly widespread demonstrations of refugees in the regions. not only that, the naphr is also expected to be able to encourage the revision of the national legal framework that can allow refugees to work and access education. the second is to immediately amend presidential regulation 125 of 2016. indonesia’s support for international refugees has been demonstrated through presidential law number 125 of 2016, yet this law still needs to be updated. part two has explained that this perpres has indeed clarified the flow of government coordination in responding to refugees coming to indonesia. however, the rights to education and work which are the main problems of refugees in indonesia are not regulated in this presidential decree (soesilowati, 2020). furthermore, part four of this article has described the social reality of refugees and the failure of this presidential decree in resolving these problems. in fact, if presidential regulation number 125 of 2016 is perfected by adding points to the right to education and work, this regulation can become a middle way in the polemic on the ratification of the 1951 convention and the 1967 protocol. revision of presidential regulation number 125 of 2016 can be a solution to fulfilling refugee rights, but this cannot be done so easily with the political background of making this regulation. the making of this presidential decree was motivated by pressure from the international community on indonesia as a country affected by refugee flows and had not ratified the 1951 convention and 1967 protocol. by passing this presidential decree, indonesia is trying to maintain its image as a human rights defender country (syahrin, et al., 2022). as a transit country, this presidential regulation is sufficient for indonesia to gain international recognition. however, when examined more deeply, indonesia has not been able to provide what refugees need. instead of providing welfare, it is as if this presidential regulation was only passed for the benefit of indonesia’s foreign policy. another challenge in revising presidential regulation is the community’s stigma towards refugees. by accommodating the right to work and education for refugees in the recommendations for the revision of this perpres, the government also needs to convince the public that this policy will not disturb them. generally, local people think that refugees will take their jobs. in fact, refugees will not take jobs from indigenous people. world of labor research states that refugees who are also included in the migrant category actually open new job opportunities with their competencies that are more inclined to the field of entrepreneurship. indigenous people are also more likely to find high-paying jobs that refugees cannot replace, for example jobs that require advanced indonesian language skills (dewansyah, et.al., 2018). meanwhile, providing access to education also expands opportunities for intercultural knowledge transfer in indonesia. unhcr is a key player in addressing the issue of refugees and asylum seekers in indonesia. in order to fulfil its mandate, unhcr has made a number of handling attempts to provide refugees or asylum seekers with international protection, including: https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 31 (a) by seeking placement in third countries or assisting the process of a voluntary return to the country of origin, seek long-term solutions for the future of refugees by providing guarantees for those who are identified as refugees who are protected from refoulment or forced repatriation to their countries of origin where their lives and freedoms are threatened and abused; (b) in the process of waiting for a final decision on the realization of a longterm solution, unhcr guarantees refugees and asylum seekers by facilitating all their basic needs, as well as education services, language courses, counseling services, health services, and others; (c) in addition to performing its duties in indonesia, unhcr continues to work on refugee rights by offering input, including a step-by-step procedure, supporting the government in developing mechanisms to effectively address issues with refugee protection and mixed migration in the context of accession to the 1951 convention and the 1967 protocol, where up to this point indonesia has not ratified the two legal instruments regarding the determination of whether or not to grant asylum; (d) unhcr cooperates with the indonesian government in handling refugees, by socializing the government’s handling guidelines when finding refugees and asylum seekers at the border, before finally being handed over to unhcr in the form of training for immigration officers and the national police; (e) in addition to the efforts made by unhcr to handle refugees and asylum seekers in indonesia, there are other factors that hinder the handling mechanism, such as the fact that indonesia did not participate in ratifying the 1951 convention and the 1967 protocol and that there is insufficient national legal framework to carry it out at an operational level, such as the absence of specific immigration administration procedures and provisions regarding temporary stay permits. as a result, there exist disparities between how unhcr personnel and indonesian government authorities handle and manage refugees and asylum seekers (syahrin, 2017). as a country that upholds respect for and upholds human rights, there should be a legal arrangement for refugees and asylum seekers in this country, both the legal and institutional mechanisms. so that the 1951 convention and the 1967 protocol became an urgent matter for ratification, bearing in mind the increasing rate of entry of international refugees into indonesia. this can also reduce the government’s dependence on unhcr in dealing with refugee problems in indonesia. thus the process of handling refugees can be more efficient, given the limitations that unhcr has in terms of human resources and costs. for example, if ratification has been carried out, the indonesian government can make a regulation that places the process of determining refugee status at immigration offices and implementing obligations that must be obeyed by refugees while in indonesia. in order to achieve efficiency, which is obviously advantageous for refugees to obtain their rights under the 1951 convention, including the right not to be punished for entering the territory of a country, the right not to be sent back to their country of origin, the right to file a lawsuit, the right to receive an education, the right to marry, the right to obtain an identity, and the duty of a refugee to obey the law. indonesia has a more comprehensive legal framework for refugees and asylum seekers in immigration laws and regulations which are adopted from humanitarian principles in handling refugees and asylum seekers based on international law, even though indonesia has not ratified the convention and protocol in the national interest. indonesia can adopt several basic principles set out in conventions and protocols to be adapted into national law as long as they do not burden the state (sumarlan, 2019). https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 32 figure 1. the policy models of durable solutions for refugees in indonesia source: own elaobration providing temporary immigration status will facilitate the control and supervision of refugees during the waiting period in indonesia. currently immigration officers (ministry of law and human rights) are having difficulty obtaining data on refugees in indonesian territory. accurate data is only owned by unhcr and can be provided on a limited basis. they only provide data access to the ministry of foreign affairs as their working partner. this fact is an obstacle for immigration officers to carry out supervision of refugees as mandated by presidential regulation number 125 of 2016. likewise, there is a need to increase cooperation between unhcr and the indonesian government, as well as resettlement countries in handling refugees and asylum. searchers, because the refugee problem is very complex and cannot be solved by one institution. there is a need to repair or renew and increase temporary accommodation facilities for refugees who are no longer adequate, because they are not criminals, but victims of human rights violations that occurred in their country of origin. increasing security guarantees safety and protection for refugees and asylum seekers, by initiating a legal framework or international agreement between source countries, transit countries, destination or resettlement countries and with international organizations and ngos, to prevent and anticipate practices that harm refugees and seekers asylum from actors who deliberately seek profit by mobilizing migrant movements, such as acts of people smuggling and trafficking in persons. 4. conclusion to uphold respect and uphold human rights, indonesia must consider long-term solutions for refugees with a humanitarian approach. ratification of the 1951 convention and the 1967 protocol is currently a top priority due to the increasing number of https://doi.org/10.17561/tahrj.v22.8255 m. alvi syahrin, m. rafly qalandy, m. syaran jafizhan the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 33 foreign migrants entering indonesia. apart from that, this can reduce the government’s dependence on unhcr in handling refugee problems in indonesia. apart from placing the humanitarian component as a top priority, handling migrants is often considered a threat to national security. legal policies are needed that balance these interests. formally, presidential regulation number 125 of 2016 has not been able to provide a solution to the challenge of the refugee problem in indonesia. this aspect may make it difficult for institutions to coordinate. there are several long-term solutions to this problem that can be put into practice, including: encouraging human rights instruments to implement the basic rights of refugees, re-determining the refugee problem as part of the national human rights action plan, revision of presidential regulation number 125 of 2016, and implementing policy revisions between indonesia, unhcr, and iom to provide more autonomy to refugees as they wait to enter a third country. acknowledgments we would like to express 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international journal of innovation, creativity and change, 13(3), pp. 1-20. sultoni, y., widagdo, s. and suryokumoro, h., 2013. the reason of indonesia not ratified refugee convention 1951 and legal protection for refugees in indonesia. jurnal hukum, pp. 1-14. sumarlan, y, 2019. political economy of pragmatic refugee policies in indonesia as a transit country. asian review, 32(3), pp. 63-93. suyatna, i.n., arsika, i.m.b., satyawati, n.g.a.d., nordin, r. and jones, b., 2021. assessment of the responsibility of local governments in indonesia for the management of refugee care. asian journal of law and society, 8(3), pp. 467-489. syahrin, m.a., 2017. the implementation of non-refoulement principle to the asylum seekers and refugees in indonesia. sriwijaya law review, 1(2), pp. 168-178. syahrin, m.a., 2018. the immigration crime and policy: implementation of ppns authorities on investigation. jils, 3, pp. 175. https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights protection approach the age of human rights journal, 22 (june 2024), e8255 issn: 2340-9592 doi: 10.17561/tahrj.v22.8255 36 syahrin, m.a., 2021. the principle of non-refoulement as jus cogens: history, application, and exception in international refugee law. jils, 6, pp. 53. syahrin, m.a., wiraputa, a.r. and ponco aji, k., 2022. indonesian legal policy in treating international refugees based on human rights approach. law and humanities quarterly reviews, 1(4). tan, d., 2021. metode penelitian hukum: mengupas dan mengulas metodologi dalam menyelenggarakan penelitian hukum. nusantara: jurnal ilmu pengetahuan sosial, 8(8), pp. 2463-2478. tazreiter, c., 2006. between state sovereignty and invisibility: monitoring the human rights of returned asylum seekers. australian journal of human rights, 12(1), pp. 7-25. taylor, s. and rafferty-brown, b., 2010. difficult journeys: accessing refugee protection in indonesia. monash ul rev., 36, p.138. tobing, d.h., 2021. connecting the obligation gap: indonesia’s non-refoulement responsibility beyond the 1951 refugee convention. asian journal of law and society, 8(3), pp. 521-535. received: 1st september 2023 accepted: 16th february 2024 https://doi.org/10.17561/tahrj.v22.8255 in search of a durable solutions for refugees in indonesia: a state security and human rights pro abstract summary 1. introduction 2. research method 3. discussion 3.1. fundamental rights of refugees in the 1951 convention and 1967 protocol 3.2. the polemic of indonesia’s position in dealing with refugee problems 3.3. indonesia’s urgency to ratify the 1951 convention and the 1967 protocol 3.4. comparison of refugee handling laws in several countries 3.4.1. australia 3.4.2. singapore 3.4.3. malaysia 3.5. human rights advocacy as a basic instrument for protection and empowerment of refugees 3.5.1. human rights and advocacy training for refugees 3.5.2. human rights learning communities 3.5.3. strengthening rlos rlis and learning centers to add refugee human rights issues as a pri 3.6. moderate solutions to fulfilling refugee rights during the resettlement process in indonesia 4. conclusion acknowledgments references right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 1 right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 mohit gupta1, sanjeevi shanthakumar2 abstract: the abandonment of seafarers is one of the major challenges that seafarers onboard vessels may face. in 2022, 1555 seafarers were abandoned on 113 ships. the port state's role in seafarer abandonment is crucial because it can assist abandoned seafarers by facilitating their repatriation. in practice, however, it has been seen in many cases that the port state of the vessel had restricted the disembarkation of the abandoned crew from the vessel by citing the reason that the vessel cannot be left unmanned. the present study will assess such measures adopted by the port states in light of international law instruments, including the maritime labour convention, 2006 and the international covenant on civil and political rights, 1966. keywords: seafarers, repatriation, abandonment, human rights, flag state, international covenant on civil and political rights, maritime labour convention 2006, port state. 1. introduction the abandonment of seafarers is one of the major challenges that seafarers onboard vessels may face. in 2022, 1555 seafarers were abandoned on 113 ships (richard & bockmann, 2022), whereas in 2021 total of 1,399 seafarers were abandoned on 94 different ships as per ilo seafarer abandonment database. according to clause 2 of standard a2.5.2 of the maritime labour convention, 2006 (hereafter referred to as mlc), a shipowner is deemed to have abandoned a seafarer when he unilaterally severs his ties with the seafarer, including failure to pay wages for more than two months or has left the seafarer without the necessary maintenance and support or fails to cover the cost of the seafarers’ repatriation. seafarer abandonment situation may be result of financial crises faced by shipping company due to which it may cease shipping operations and leave the seafarers stranded and abandoned on ships. (nifontov, 2014, para 6.31.). for instance, in 2020, the palmali shipping company experienced a financial difficulty, leading to the abandonment of seafarers on its ships in multiple ports worldwide. (offshore energy, 2021). seafarers wages were unpaid, and they lacked essential provisions such as food, water, and fuel on ship. (offshore energy, 2021). 1 gujarat national law university. email: guptamohit830@gmail.com 2 gujarat national law university. email: vc@gnlu.ac.in mailto:guptamohit830@gmail.com mailto:vc@gnlu.ac.in right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 2 it has been witnessed in a number of seafarer abandonment cases that the port state of the vessel on which seafarers were abandoned has prevented abandoned seafarers from disembarking from the vessel. as per the information on ilo database on reported incidents of the seafarer abandonment database, such a situation arose when seafarers got abandoned on vessels mv theoxenia, arybbass, miss gaunt, gp b1, and aht carrier (ilo, n.d.). the problem can be understood through the abandonment of a seafarer on a vessel named tamim alder. in june 2019, four abandoned seafarers disembarked from the vessel and left the vessel in one lifeboat, but all of them were later forcibly returned to the vessel by the coastguard when they reached the uae port (business and human right research center, 2019). port states usually justify measures preventing the disembarkation of seafarers by citing the reasons that vessels cannot be left unmanned in the port, and it should at all times have the minimum number of crew required to ensure vessel safety. unmanned vessels may pose a safety threat to the port as they can generate risks like fire or sinking (asunción la and caro raul villa, 2018, p. 359). the port state insists that a replacement crew should join the vessel if the abandoned crew have to disembark from the vessel. as a result, abandoned seafarers get confined within the vessel and are able to go back to their home nation after a delay of several months. on many occasions, even though the country of nationality of the abandoned seafarer or the flag state of the ship or the insurer was willing to bear the cost of the repatriation of the abandoned seafarers (which include travel cost to the country of residence of the seafarer), the seafarer could not be repatriated because the port state did not allow the abandoned seafarers to leave the ship (arybbas, 2019; gp b1, 2021). the present study will assess the measures adopted by the states whereby it prohibits the disembarkation of abandoned seafarers from the vessel in its port in light of provisions of the maritime law treaties, including mlc. as many seafarer abandonment cases get reported from states that have not ratified mlc, the analysis in the present chapter has also been undertaken in light of human right treaties including iccpr. iccpr is one of the most widely ratified treaties, with 173 ratifications to date (united nations treaty collection, n.d.). data on seafarer abandonment in ilo seafarer abandonment database for 2020 demonstrate that in 33% of cases, the ports where seafarers were abandoned were situated in one of the four countriesuae, saudi arabia, turkey, and yemen. none of these four countries has ratified mlc (normlex, n.d.). 2. right of repatriation of abandoned seafarer in the light of mlc seafarers are protected under many ilo instruments (papanicolopulu, 2014, p .515). mlc is one of the most important treaties highlighting the rights of seafarers and their working and living conditions on vessels (doumbia-henry, 2020, p. 280). this treaty specifically recognises the right to repatriation of seafarers. under clause 1 of standard a2.5.1 of mlc, a seafarer is entitled to be repatriated without any cost to themselves in some specific circumstances. the first is when the employment contract of seafarers expires. the second is when the employment contract is terminated by the seafarer or mohit gupta, sanjeevi shanthakumar the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 3 shipowner for a valid reason. the third is when the seafarer becomes incapable of working on the vessel or cannot be expected to continue work in light of specific circumstances. the important question is whether, in all the cases where seafarers are abandoned by the shipowner, the right to repatriation accrues to the seafarers. mlc standard 2.5.2 highlights three situations when a seafarer is deemed to be abandoned; these are first, when the shipowner fails to repatriate a seafarer when the right to repatriation accrues to the seafarer, second, when wages of the seafarer of at least two months become pending, third is when the shipowner fails to supply necessities onboard the vessel. as is seen above, denial of repatriation is itself one of the grounds for the situation being described as abandonment. however, an important issue is whether, for the remaining two grounds (i.e., when abandonment takes place due to non-payment of wages or denial of necessity), the right to repatriation accrues to seafarers. one of the criteria mentioned in clause 1 of standard a2.5.1 of mlc when seafarers are entitled to be repatriated is when they cannot be expected to continue work on the vessel. this ground is wide enough to bring within its ambit the situation of seafarer abandonment due to non-payment of wages or non-supply of necessities. by not providing wages and denying the supply of necessities, the shipowner breaches his fundamental obligations towards the seafarers under the seafarer employment contract; therefore, in such circumstances, the seafarer cannot be reasonably expected to perform their duties onboard the vessel. thus, in case of abandonment due to non-payment of wages and denial of necessity, the right to repatriation will automatically accrue to seafarers. furthermore, the non-binding guideline b2.5.1, cl 1 b (iii) of mlc specifically mentions that repatriation right accrues to a seafarer where the shipowner is unable to fulfil their contractual or legal obligations as an employer of the seafarers due to reasons of insolvency or any other similar reason. this head is sufficiently broad to cover the situation where the shipowner abandons the seafarers and stops fulfilling legal obligations of paying regular wages and providing necessities onboard to seafarers. from the discussion, we can infer that in all cases of seafarers abandoned as per mlc, the right of repatriation accrues to abandoned seafarers. below portion highlights that under mlc, who has the obligation to do the repatriation once such right accrues to the seafarers? 2.1. who should repatriate an abandoned seafarer? 2.1.1. shipowner mlc mentions in clauses 1 and 3 of standard a2.5.1, that flag states should impose the primary responsibility of repatriation of seafarers on the shipowner through its domestic laws. the shipowner may not come forward to arrange the repatriation of the abandoned seafarer, as it was because of the shipowner’s fault that the abandonment happened in the first place. however, there have been plenty of cases where shipowners, after initially abandoning the seafarer, later resolved the issue by taking measures such right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 4 as paying outstanding wages of seafarers and arranging seafarer repatriation (qian tai 1, 2021; ali b3, 2021; medi hakata, 2021; sea wave, 2022). a good example could be seafarer abandonment onboard comoros flagged vessel sea wave (sea wave, 2022). on this vessel, seafarer abandonment was reported to ilo on 7 january 2022, when its seven filipino crew were unpaid for six months, and one crewmember was unpaid for seven months. after the flag state comoros intervention, the vessel owner paid the pending wages to the seafarers and arranged the repatriation. 2.1.2. financial security provider a financial security system for protecting abandoned seafarers and providing them assistance in repatriation was developed through the 2014 amendment to mlc. provisions related to financial security system can be found in standard a2.5.2. of mlc. as per the provisions, the state parties to mlc must ensure that their flagged vessels maintain financial security for aiding the seafarers when they are abandoned. on getting abandoned onboard a vessel, the seafarer can directly approach the financial security provider for prompt assistance. as per standard a2.5.2, clause 9, the assistance provided should be sufficient to provide necessities on board the vessel, repatriation costs, and pending wages of the seafarers for up to four months. from the time the financial security system for abandonment evolved in 2014, the financial security providers have assisted many abandoned seafarers by arranging their repatriation. for instance, in the recent case of panama-flagged vessel gp b2, seafarer abandonment was reported to ilo on 27th january 2021 because shipowners had not paid the crew (gp b2, 2021). this matter got resolved when the p&i club, which was the financial security provider of the vessel, paid the pending wages of 4 months and repatriated the crew on 11th february 2021(gp b2, 2021). 2.1.3. vessel’s flag state as per standard a2.5.1 clause 5(a) of mlc, when the shipowner does not discharge his obligation, the flag state of the vessel should come forward to repatriate the seafarers. there have been many instances where a vessel’s flag state has arranged the repatriation of abandoned seafarers from their vessels. for example, when on a togo-flagged vessel, jolly lizzy seafarers of ghanian nationality were abandoned, flag state togo arranged the repatriation of the seafarers (jolly lizzy, 2020). 3. duty of port state to facilitate repatriation in light of mlc it is important to note that clause 7 of standard a2.5.1 of mlc, imposes an obligation on the port state to facilitate the repatriation of seafarers onboard vessels calling at its port. for instance, if the flag state of the vessel or country of nationality of the seafarer or financial security provider for the vessel is willing to arrange the repatriation of the abandoned seafarer, then the port state should facilitate such repatriation by allowing disembarkation of the seafarer from the vessel and permitting them to use the territory of the port state for transit. mlc standard 2.5.1, clause 8, clarifies that state parties shall not mohit gupta, sanjeevi shanthakumar the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 5 prevent repatriation to any seafarers due to the financial condition of the shipowner or due to reason of the unwillingness or inability of the shipowner to replace the crew. there have been many instances where although the vessel’s financial security provider for abandonment came forward to do repatriation of all the abandoned crew, repatriation was impeded because the port state prevented the abandoned crew from disembarking from the vessel (captain nagdaliyev, 2020; kenan mete, 2020; gp b1, 2021; bourbon, 2020; arybbas, 2019; ptolemeos, 2019). the port state disallows disembarkation in seafarer abandonment situations because it doesn’t want to keep the unmanned vessel in port as it may cause safety issues. as per solas chapter v, regulation 14, all vessels should have the minimum number of crew at all times to ensure their safety; this is referred to as the minimum safe manning requirement of the vessel. the minimum safe manning certificate of a vessel incorporates how many minimum numbers of seafarers need to be present on the vessel to operate the ship and keep it safe. the vessel’s flag state issues such a certificate. an important question which arises is: whether the duty to facilitate repatriation will continue to apply on the port state of the vessel in circumstances where the sign-off of an abandoned seafarer from the vessel in port may breach the minimum safe manning requirement of the vessel. the below portion discusses this question. 4. assessment of port state measures preventing disembarkation of abandoned seafarers from vessels in the light of maritime law treaties as pointed out earlier, there have been many instances where the port state, which has ratified mlc, has disallowed the disembarkation of an abandoned seafarer from a vessel in port by citing reasons related to the minimum safe manning requirement of the vessel. one such case is of seafarer abandonment on vessel arybass (arybass, 2019). on this vessel, seafarers were abandoned in the port of djibouti on 15th september 2019. twelve seafarers were repatriated within a few months of abandonment on 7th november 2019, with the expense being borne by the p&i insurer of the vessel. there were 9 filipino crewmembers who remained onboard the vessel. p&i, the insurer of the vessel, was willing to arrange the repatriation of the remaining seafarers as well from the vessel but was unable to do the same because the port state did not give permission for the sign-off of the crew. the port state mentioned that seafarers could not leave the vessel until the replacement crew joined the vessel (arybass, 2019). when ilo intervened in the matter, the port state (djibouti) informed that the unmanning of the vessel and the repatriation of the seafarers could not be authorised because of port security reasons and non-conformity with the minimum safe manning requirement. as per the djibouti government, the possible solution to the matter is the judicial sale of the ships. on the other hand, p&i insurer was of the view that this issue could have been resolved promptly, but because of non-cooperation on the part of the port state, the seafarers could not be timely repatriated. p&i club opined that the port state has frustrated the repatriation of the abandoned seafarer and made unjustifiable demands for a replacement crew in order to release abandoned seafarers from the vessel; this amounts to a hostage exchange. nine abandoned crew were finally repatriated on 23rd november 2020 right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 6 by the p&i insurer of the vessel when the ship was auctioned to the new owner by djibouti authorities (arybass, 2019). in an abandonment situation, it is seen that the port state does not reject the call for facilitating repatriation outrightly, but it demands that a replacement crew should join in so that the abandoned crew can leave the vessel. however, it is never easy to get a replacement crew. in the above-discussed case, some of the abandoned seafarers had to remain on board the vessel for months as no one was ready to arrange the replacement crew. this is so because the shipowner is not available to bear the cost of crew change and replacement crew in such a situation. furthermore, mlc doesn’t require the financial security provider to arrange a replacement crew (eugene cheng jiankai, 2020, p. 17, 18). if we assess the above practice of port states, few observations can be made in light of the mlc. mlc recognises in standard a2.5.1, clause 7, that the port state should facilitate the repatriation of seafarers. it does not identify any exception to the obligation of the port state to facilitate the repatriation of seafarers from the foreign ship in its port. on the contrary, standard a2 .5, clause 8 of mlc states that the state should not deny the right of repatriation to any seafarer because of the inability or unwillingness of the shipowner to replace the crew. now, if we focus on international law related to the safe manning requirement of the ship, solas, chapter v regulation 14 flag state of the vessel has an obligation to take measures to ensure that all its vessels are sufficiently manned. flag state issues to its vessel the safe manning document, which mentions the number of seafarers which should be on the vessel. imo, resolution a1047(27) gives guidance to the states for deciding the minimum manning level for its vessel (imo, 2011). adequate manning of the vessel is required in order to ensure its safe navigation, safety and security of the vessel and safe operations in the port. it also prevents injury to human or loss of life, ensure the welfare of crew by avoidance of fatigue and prevent damage to the marine environment. the mlc also in standard a2.7 mentions that flag states should require all their vessels to be adequately manned. it is important to note that, in the above-mentioned legal instruments, it is the vessel’s flag state which has the obligation under the above treaties to take measures to ensure that its vessels are adequately manned; the port state has no such duty. if the port state prevents the abandoned seafarers from disembarking from the foreign vessel in port, it cannot justify its conduct on the basis of international law related to safe manning as has been discussed above. however, the port state may inspect the foreign vessel and can detain it if the safe manning requirements fixed by the flag state are not satisfied. furthermore, abandoned seafarers cannot be considered as seafarers for the purpose of the minimum manning requirement of the vessel. this is because the seafarer employment contract between the shipowner and seafarer will be deemed to be terminated when the shipowner commits a fundamental breach of the employment contract by abandoning the seafarer. a fundamental breach of contract refers to a situation mohit gupta, sanjeevi shanthakumar the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 7 where one of the parties to the contract commits a breach of the fundamental term of the contract (stephen j leacock, 1975, p. 182). a fundamental term is a stipulation that constitutes a central obligation or essence of the contract (stephen j leacock, 1975, p. 182). a fundamental breach of contract may be considered to be a ground for the aggrieved party to terminate the contract(stephen j leacock, 1975, p. 182). in the seafarer abandonment situation, the shipowner breaches the core obligations under the employment contract, such as payment of wages to seafarers on a monthly basis, furnishing necessities to seafarers’ onboard vessel, doing repatriation of the seafarers etc. thus, the situation constitutes a fundamental breach of contract on the basis of which the contract may be terminated. moreover, ensuring that the ship is adequately manned is the shipowner’s responsibility and not of the crew. seafarers, including the vessel captain, cannot be forced to stay onboard merely because the shipowner does not arrange their replacement. abandoned seafarers cannot be forced to stay onboard the vessel by citing minimum safe manning requirements because the port state has an obligation to facilitate the repatriation of seafarers under mlc. from the discussion, it can be said that the approach of a few port states in resisting the repatriation of seafarers is not in conformity with mlc provisions. the below portion will now assess the measures adopted by the states whereby it prohibits the disembarkation of abandoned seafarers from the vessel in its port in the light of provisions of iccpr and several other human right treaties. 5. assessment of port state measures preventing disembarkation of abandoned seafarers from vessels in the light of human rights treaties as many states have not ratified mlc, it is crucial to discuss the duty to facilitate repatriation on the port states in light of human rights treaties like iccpr. article 2 of iccpr mentions the scope of application of the iccpr. the provision says that state parties are obligated to grant protection, as mentioned in the treaty, to all the individuals who are ‘within its territory’ and are ‘subject to its jurisdiction’(galani, 2017, p. 38). it is important to note that two phrases in article 2‘within its territory’ and ‘subject to its jurisdiction’, are connected through ‘and’ not ‘or’. human rights committee, however, has given a disjunctive understanding to article 2, implying that to benefit from iccpr, individuals need not fulfil both requirements (human right committee, 2004, para 10). in other words, to bring an individual within the protective ambit of iccpr, it will be sufficient to show that either individual is within the state party's territory or is within the state party's jurisdiction. icj in wall advisory opinion has also supported such an interpretation of the provision (icj, 2004, para 108. 109). thus it can be stated that the obligations of the state party under iccpr may apply with respect to individuals who are, although outside the territory of the state party but within its jurisdiction. tanaka (2015, p. 80) and icj in nicaragua v. united states of america (1986, para. 213) have stated that the sovereignty of a state extends to its ports. pertaining to right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 8 this sovereignty, abandoned seafarers on a foreign vessel in port can be said to be within the de jure jurisdiction of the port state. de jure jurisdiction can be described as a power vested in a state to legislate, enforce, or adjudicate (papanicolopulu, 2014, p. 519). it can be inferred, based on the scenario arising, that if the port state has ratified the iccpr, it is obligated to respect and ensure covenant rights to abandoned seafarers on the foreign vessels in its port; below portion analysis of some of the substantive provisions of iccpr which are relevant in a seafarer abandonment situation. article 6(1) of iccpr states that every individual has the inherent right to life, and such right has to be protected by law. by virtue of the provision, state parties should respect and grant protection to the lives of all persons located on marine vessels in port and of every individual who is in a situation of distress at sea (human right committee, 2019, para 63). in fulfilment of its duty to take positive measures to protect the right to life under article 6, the port state should come to the immediate assistance of such seafarers and should allow the disembarkation of abandoned seafarers. this is because the right to life of abandoned seafarers on the vessel is breached because they get cramped within the vessel without having ample supplies of necessities and without being paid wages. under article 6, not only is there a responsibility on the state to take positive measures to protect the right to life but also, the state should not take any measure which may unjustifiably impair the right to life of a seafarer. the measure imposed by the port state to prohibit the abandoned crew from disembarking from the vessel in its port can violate article 6 as confining a person in the vessel where he is not being paid wages nor having access to sufficient necessities amounts to arbitrary deprivation of life. article 7 of iccpr mentions that no individual should be exposed to inhuman, cruel or degrading treatment. the purpose of the provision is to protect the dignity and the mental and physical integrity of every person (office of high commissioner of human rights, 1992, para 2). when the port state does not allow the abandoned seafarer on the foreign vessel to disembark, the vessel becomes a floating prison for the seafarers. as seafarers are not paid any wages nor do they have access to sufficient necessities, seafarers undergo enormous mental trauma. article 7 prohibits not only acts that lead to physical pain but also acts which result in mental suffering (office of high commissioner of human rights, 1992, para 5); this is why any such measure of the port state which prohibits abandoned seafarers from disembarking from the vessel may contradict article 7 of iccpr. furthermore, in article 9, iccpr says that all individuals have the right to liberty and security of a person. the liberty of a person implies freedom from confinement, and, it cannot be deprived in an arbitrary manner (human right committee, 2014, para 3, 10). arbitrariness implies notions like injustice, unreasonableness, etc. (human right committee, 2014, para 12). when the foreign vessel is abandoned along with the seafarers in the port of any state, requiring the crew to stay on the vessel may breach the right to liberty of the seafarers as it is tantamount to arbitrary deprivation of liberty without any sound reason. mohit gupta, sanjeevi shanthakumar the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 9 under article 9, all people also have the right to the security of a person. this right relates to freedom from bodily or mental injury, and it protects all persons against the intentional infliction of bodily or mental injury (human right committee, 2014, para 9). this right is also endangered when the abandoned seafarers are not allowed to disembark from the vessel by port state and thus are forced to remain on the vessel. port state authorities may not justify their conduct of preventing the disembarkation of abandoned seafarers from the ship by contending that they have not ratified mlc as the duty to facilitate repatriation also flows from iccpr, which they might have ratified. in many instances, port states have ratified both iccpr and mlc. in such cases, if states prevent abandoned seafarers from disembarking from the vessel in port, not only the obligation under mlc upon the port state to facilitate repatriation will be breached, but also the iccpr provision highlighted above will get violated. apart from iccpr, there are many other human rights treaties which recognise the right of people when they are in the territory of a country other than their nationality. there are specific conventions that deal with the rights of migrant workers. ilo convention 97, known as the migration for employment convention 1949, is one such convention, but it excludes seafarers from its protective umbrella in its article 11 (2). the international convention on the protection of the rights of all migrant workers and members of their families, 1990, is another treaty that grants protection to migrant workers. one of the categories of migrant workers mentioned under article 2(g) of the convention is ‘specified-employment worker’. the specified category of workers is workers who are sent by or their employer for a defined duration to a state of employment for carrying out a specific assignment. the seafarer can be considered as a specified category of workers for the purpose of this treaty because they enter into port state jurisdiction on the vessel for performing a defined shipping operation. thus, if the port state of the vessel has ratified the convention, the seafarers onboard the vessel in port will enjoy the rights under it. convention in article 9 recognises the right to life of migrant workers and states that the same should be protected by law. it also states in article 10 that migrant workers should not be subjected to any kind of torture or inhuman, cruel, or degrading treatment. the convention specifically states in article 11(2) that migrant workers should not be required to do forced or compulsory labour. convention also recognises in article 16 that migrant workers shall have the right to liberty and security of persons, and they should not be subjected individually or collectively to arrest in an arbitrary manner or to detention. there is also a un general assembly declaration of 1985 which grants a few basic sets of rights to aliens in the territory of the state where they are present. art 5.1 (a) of the declaration mentions the right to life, and grants protection from arbitrary arrest, and detention. all these rights mentioned here are relevant to the seafarer abandonment situation. port state measures preventing abandoned seafarers from disembarking may breach these human rights obligations arising under convention. right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 and international covenant on civil and political rights, 1966 the age of human rights journal, 21 (december 2023), e7284 issn: 2340-9592 doi: 10.17561/tahrj.v21.7284 10 6. conclusion from the analysis in the article, it is found that the vessel’s port state cannot prescribe crew change as a pre-condition for facilitating the repatriation of abandoned seafarers onboard vessels in its port as the same will violate the mlc and several human rights treaties, including iccpr. in order to allow disembarkation of the abandoned seafarers, the port state can shift the vessel to a location where the vessel can be kept unmanned. another option for port state is that it can allow the disembarkation of all the abandoned crew and place replacement crew on the vessel at its own cost. eventually, the vessel can be auctioned, and the port state can recover from the sale proceeds, the charge of berthing the vessel and the cost of supplying personnel for manning the vessel. finally, it can be said that it is high time now that states should realise that they cannot inflict suffering on the seafarer because of the fault of a shipowner who has left its vessel in waters of a foreign state along with the seafarers. references ali b3. 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(2015). international law of the sea, cambridge 3rd ed. https:// doi.org/10.1017/cbo9781139946261 received: 1st july 2022 accepted: 29th may 2023 https://doi.org/10.1017/cbo9781139946261 https://doi.org/10.1017/cbo9781139946261 right to repatriation of abandoned seafarers: a study in light of maritime labour convention, 2006 abstract 1. introduction 2. right of repatriation of abandoned seafarer in the light of mlc 2.1. who should repatriate an abandoned seafarer? 2.1.1. shipowner 2.1.2. financial security provider 2.1.3. vessel’s flag state 3. duty of port state to facilitate repatriation in light of mlc 4. assessment of port state measures preventing disembarkation of abandoned seafarers from vesse 5. assessment of port state measures preventing disembarkation of abandoned seafarers from vesse 6. conclusion references the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 83 the right to gender self-determination in spain. lessons from autonomous communities* laura flores anarte** abstract: law 3/2007, regulating the rectification of a person's official sex, is still in force in spain. although it does not demand reassignment surgery, it pathologizes the reassignment process, among other shortcomings. since its enactment, 14 of spain’s 17 autonomous communities (regions) have legislated on the subject, mostly on the basis of self-determination, in an attempt to compensate for the perceived deficiencies in national legislation. this paper analyses and compares the legislative approach to gender identity and the rights of trans people at a national and regional level. keywords: trans, pathologisation, self-determination, fundamental rights, autonomous communities. summary. 1. introduction. 2. the recognition of self-defined gender identity in the spanish legal system. 3. distribution of powers and recognition of rights in spain’s autonomous communities. 4. the right to gender self-determination in the autonomous regions. 5. conclusions. 1. introduction both socially and legally, categories are used to classify people and determine their relational position with respect to both other individuals and state institutions. in these categories, sex and its association with a particular role, i.e. gender,1 is a key facet. equality feminism has focused mostly on the need to differentiate between the category of "sex", as a biological reality inseparable from the individual, and "gender", as a cultural construct which, on the basis of biological sex, imposes differentiated roles and destinies on women *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. **lecturer (profesora ayudante doctora) of constitutional law, universidad de sevilla, spain (lflores2@ us.es). 1. according to gender stereotypes, both men and women must act in accordance with these behavioural patterns in order to comply with the social norm; this is the role they are expected to play and it is determined according to their sex. thus, men are synonymous with reason, mentality, independence, activism, selfishness, toughness, calculation, rationality, science; women are identified with emotion, physical appearance, dependence, passivity, sacrifice, tenderness, unpredictability, irrationality (marçal 2016: 258). in this way, as laura nuño points out, "patriarchal socialisation produces two radically different cultures and two completely different ways of feeling. gendered socialisation implies that each gender must have internalised the necessary guidelines to know what to think or do in order to fulfil gender expectations" (nuño gómez 2010: 173). the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 84 and men. the essential premise of this strand of feminism, a legacy of women’s demands since the enlightenment,2 is that there are no natural biological conditions associated with either of the sexes which can justify the differentiated normative social models imposed on men and women, that biological differences which have a real impact on the way women and men relate are minimal, hence that gender roles, maleness and femaleness, are nothing more than cultural constructions. feminist theories developed in the 1970s reinforced this perspective, giving it a solid theoretical-scientific basis. by focusing on genders as imposed cultural categories, they encouraged the delegitimisation of the normative gendered social order.3 more recently, this distinction between sex-biology and gender-culture has also been called into question by authors, such as butler (1990), who dispute that two natural sexes exist separately from culture, thus highlighting how the category of sex is itself a cultural construction. having thus embarked on a path of relativizing biological essentialisms, having pointed to the resulting construction of maleness and femaleness as a cultural product, having even questioned sex as an immutable biological concept, the next logical step for democratic societies would seem to be the abolition of gender as a cultural imposition, and the relegation of sex to an irrelevant social category, apt to address some purely biological questions. nevertheless, although equality stands as an essential democratic principle, and although discrimination on grounds of sex has formally been abolished almost entirely, the concept of exclusionary citizenship inherited from the enlightenment continues to be in place in democratic states (pateman 1995; rodríguez ruiz 2010), and the sex-gender system (rubin 1975) continues to play a central role within it. despite the growing rejection of sex as destiny, sex-gender continues to have a decisive influence on an individual’s way of participating in society. the sex assigned to an n individual at birth, mostly on the basis of their genitalia, and then consigned to the official documents which identify them as a legal person, continues to define their relations with the state and to condition their social interactions, while the symbolic ramifications of one’s official sex remain decisive in the construction of personal identity. from the custom of piercing girls’ ears at birth, to the adscription of a certain aesthetic appearance to each sex, the presumption of heterosexuality, the masculinisation or feminisation of certain professions, the differentiation of public spaces by sex-gender, etc., social identities and relations continue to be structured around a performative sex-gender binary based on the sex assigned at birth. 2. the best-known feminist figure of the enlightenment is perhaps olympe de goudes, author of the declaration of the rights of woman and the citizen (1791). but she was not alone. alicia puleo’s la ilustración olvidada [the forgotten enlightenment], (1993) compiles texts by both women and men who contested the dominant tendency of the enlightenment to consider women as inferior beings excluded from citizenship and the rights attached to it. 3. american anthropologist gayle rubin (1975) was the first person to take the concept of gender and apply it to feminist theory, based on a revision of the idea of the "exchange of women" by anthropologist lèvistrauss. also relevant in this respect is joan scott's (1986) research on the role of gender in power relations throughout history. laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 85 the apparent simplicity of classifying individuals according to a watertight model of sexual identities, which only admits two alternatives, clashes with individual real life experiences, which are much more complex and difficult to classify. the persistence of social and legal binary categories means, however, that people who do not identify with the gender roles linked to the sex they were assigned at birth feel the need to be reassigned to the other one, "not only as a way of consolidating a sense of inclusion and belonging to the community, but also to avoid socio-economic damage and psychological harm in societies which continue to be, for the most part, transphobic" (rubio marín and osella 2020: 49). this situation has shaped the struggles for increased legal flexibility of the sexgender categories, so as to allow for the recognition of self-perceived gender identity over and above the one imposed upon binary biological criteria. over the last few decades, these demands have become part of the political agenda in many countries, including spain.4 this paper aims to analyse the legal solutions articulated in spain to address the treatment of dissident gender identities. after examining national legislation and exploring its shortcomings (2), it will focus on the constitutional margin autonomous communities have to recognise rights and legislate on the matter (3), in order then to analyse existing regional laws (4). it will then reflect on the discrepancies between the two levels of legislation and the need to homogenise them through national legislation that responds to trans and lgtbi people's demands (5). 2. the recognition of self-defined gender identity in the spanish legal system in spain, scholars (salazar benítez 2015; alventosa del río 2016) and courts (supreme court’s decision of admissibility –ats510 march 2016; decisions of the constitutional court -sstc6176/2008, 99/2019) agree that the need to protect gender identity is rooted in the respect that, according to the spanish constitution, is due to the dignity of the person and the free development of the personality, both regarded as foundations of political order and social peace (article 10.1 of the spanish constitution –ce-7). the implication is that sex-gender identity is part of one’s personality. gender identity is also protected by fundamental rights such as the right to physical and moral integrity (article 15 ce), the rights to one’s honour and privacy (article 18.1 ce), and by the constitutional protection granted to health (not a fundamental right as such, but a guiding principle of social and economic policy, enshrined in article 43 ce and connected to article 15’s right to physical integrity – stc 176/2008), which is broadly understood 4. according to a study about the evolution of discrimination in spain published in 2018 by the women's institute (instituto de la mujer), when asked whether a person who was born male and feels female should be able to change their name and documentation to be treated as a woman, and vice versa, 65% of the people surveyed were in agreement and 14% agreed to some extent. only 6% completely disapproved, whilst another 6% disapproved to some extent. 5. auto del tribunal supremo. 6. sentencia del tribunal constitucional. 7. constitución española. the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 86 as a complete state of physical, mental and social wellbeing. with regard to the right to equality and not to suffer discrimination (article 14 ce), there is no doubt that, although not expressly mentioned as a suspicious ground for discrimination, sexual and/or gender identity has historically left certain groups at a structural disadvantage with respect to others, and is therefore covered by the ban on discrimination. disadvantaged identities, mostly trans and non-binary identities, are also covered by the duty of public authorities to work towards substantive equality (article 9.2 ce), which includes the adoption of affirmative action measures. moreover, all these rights must be interpreted in accordance with the international treaties and agreements on the matter ratified by spain, as interpreted by international and european bodies (article 10.2 ce). in this sense, the european court of human rights (ecthr) has consistently stated that the right to respect for private life as recognised in article 8 of the european convention on human rights (echr) also includes the protection of the right to gender self-determination (decision of 10 march 2015, case of y.y. v. turkey; decision of 6 april 2017, case of a.p., garçon and nicot v. france). although the constitution thus supports the recognition of gender self-determination in spain, there is no national comprehensive legislation which addresses it. some norms refer to the rights of trans people in the civil, criminal, health and labour spheres, mainly through anti-discrimination law.8 the arguments underpinning them often are, however, hesitant or confused, as are some of the arguments developed by the constitutional court. an example of this is stc 176/2008. here the constitutional court included transsexuality among article 14 ce’s forbidden grounds for discrimination. as the court stated, the aim of article 14 ce is to ban historically entrenched differentiations which, both through the actions of the public authorities and social practice, have placed certain sectors of the population in positions of structural disadvantage, as against the dignity of the person (article 10.1 ce; see sstc 128/1987, fj9 5; 166/1988, fj 2; 145/1991, fj 2). trans people have historically been placed in such positions of disadvantage, inequality and even marginalisation. 8. with regard to health, article 6.1 of law 33/2011, of 4 october (general law on public health), stipulates that "all persons have the right to public health under conditions of equality without discrimination on the grounds of birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, illness or any other personal or social condition or circumstance". in the labour sphere, several norms proscribe discrimination on grounds of sex or sexual orientation (such as article 4 of workers’ statute, as amended by law 62/2003, of 30 december, on fiscal, administrative and financial measures; or article 8 of law 5/2000, on offences and penalties in the social order). yet only the more recent law 36/2011, on the social jurisdiction, makes explicit reference to sexual identity. specifically, article 96.1 establishes the attenuation of the burden of proof "in those proceedings in which the allegations of the plaintiff establish the existence of well-founded indications of discrimination on grounds of sex, sexual orientation or identity", among others. in the criminal field, the reform of the criminal code by law 5/2010, of 22 june, involved the incorporation of crimes committed for reasons of sexual identity as an aggravating cause of criminal liability, independently of sexual orientation, sex or gender (article 22). meanwhile, when hate crimes were introduced in the criminal code (article 510) in 2015, they included a reference to sexual identity as one of the reasons that place a certain person in a position of special vulnerability, differentiating it from sex, gender and sexual orientation. 9. acronym for fundamento jurídico (legal ground). laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 87 the constitutional court, however, misses the opportunity to develop a more thorough discourse on the legal construction of transsexuality as a cause of discrimination. it initially refers to transsexuality as the condition of "a person who, belonging to one sex due to their chromosomal and morphological configuration, feels and acts as a member of the other sex" (fj 4), in accordance with the common meaning of the term. yet it then becomes imprecise and equivocal on the subject, as it conflates discrimination on these grounds with discrimination based on sexual orientation. it refers to the case-law of the ecthr on sexual orientation; to the un human rights committee's interpretation of the international covenant on civil and political rights, stressing that the prohibition of discrimination on grounds of sex (article 26) includes discrimination on grounds of sexual orientation; to article 13 of the treaty establishing the european community, which includes sexual orientation as a forbidden ground for discrimination; and to article 21.1 of the charter of fundamental rights of the european union, which also includes "sexual orientation" as a forbidden ground for discrimination of any kind. transsexuality, however, concerns a person’s identity,10 not their sexual orientation. using precise terminology and concepts is a crucial step towards providing adequate protection. trans demands have been more successful in the field of civil law. law 3/2007, of 15 march, which regulates the rectification of registered sex, expressly addresses the legal situation of trans persons, although only in relation to the rectification of their legal sex in the civil registry. it rules that any spanish person of legal age, and with sufficient capacity to do so, may request the modification of the registration of sex, provided that certain requirements are met. these include: 1º) a report from a doctor or clinical psychologist, stating that the applicant has been diagnosed with gender dysphoria, accredited by means of a reference to: – disparity between the morphological sex or physiological gender initially registered and the applicant's self-perceived gender identity or psychosocial sex, as well as the stability and long-term persistence of this disparity. – the absence of personality disorders that could have a decisive influence on the existence of this disparity. 2º) that the person requesting the change of registration has been medically treated for at least two years to bring their physical characteristics into line with those corresponding to the desired sex. this law significantly relaxed the criteria for rectifying one’s registered sex. prior to it, any such rectification required a favourable court ruling. moreover, the dominant caselaw on the subject, as upheld by the supreme court, focused on chromosomal or gonadal 10. when deciding on this case, the ecthr observes that, while transsexuality is indeed included in article 14 of the echr as a forbidden ground for discrimination, it does not concern sexual orientation, but gender identity. however, the ecthr did not adequately assess the consequences of the constitutional cout’s failure to adequately conceptualise transsexuality. the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 88 criteria rather than psychosocial factors.11 gender reassignment surgery was required. yet law 3/2007 did not recognise a right to self-determination, but remained rooted in the logic of external assignment. this goes against the spanish constitutional framework, as indicated above. it is also out of line with the international (albeit non-binding) standards set out in the yogyakarta principles, specifically no. 18, which provides that states "shall ensure that any medical or psychological treatment or counselling does not explicitly or implicitly consider sexual orientation and gender identity as a health condition to be treated, cured or suppressed". in addition to this, the law’s parameters are still defined on the basis of a binary system which does not contemplate any identities other than male and female. furthermore, law 3/2007 leaves non nationals and minors out of its scope (article 1.1). this latter point has been criticised by scholars (burgos garcía, 2016; alventosa del río 2016) and has been declared unconstitutional by the constitutional court (stc 99/2019). requiring that applicants be of age when requesting a rectification of their registred sex, this court ruled, without offering a procedure to accommodate minors "with sufficient maturity" and in a "stable situation of transsexuality", is a disproportionate restriction of constitutional principles (dignity, free development of the personality) and rights (privacy), as the harm caused to these young people exceeds their need for protection, which is the given reason for their exclusion (fj 9). above all, the 2007 law fails to provide a comprehensive and all-encompassing regulatory framework as required to address the situation of trans people. as alventosa del río points out, "the identity of a person implies far more than mere registry rectification". there is notably a lack of legislative provisions concerning various other issues: "the existence of a right to one's own sexual and gender identity, comprehensive health care for transgender people, incentives for research in the area of transsexuality, campaigns and initiatives to combat transphobia, the creation of a legal advice service and psychological and social support for family members and relatives of transgender people, and the design of a policy of positive discrimination in employment and other legal and social areas" (alventosa del río 2015: 751). similarly, as salazar points out, "it is obvious that a change of sex and name registration is an essential factor for a transgender person to be able to operate in legal terms without discrimination, but it is far from being the only issue which conditions their status as a citizen " (2015: 86). all this points to the need for a national law which both depathologises transsexuality and includes a comprehensive approach to the reality of trans people. the need to pass such a law has been under discussion for some time and has undoubtedly become an 11. however, from 2007 onwards (sts 929/2007, of 17 september, confirmed in subsequent rulings such as ssts 158/2008, of 28 february; 182/2008, of 6 march; 183/2008, of 6 march; 731/2008, of 18 july, or 465/2009, of 22 june), there was a shift in the supreme court's doctrine. laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 89 important item in the current government’s political agenda, particularly of the agenda of its the ministry of equality. however, ideological differences have created tensions and discrepancies and caused delays. it was not until june 2021 that government finally passed a draft bill on the real and effective equality of trans people and on the rights for lgtbi people12. the draft bill will be discussed in parliament once mandatory reports on it are issued, by the general council of the judiciary and the public prosecutor's council.13 in the meantime, autonomous communities have tried to fill the existing legal gaps within the scope of their powers. 3. distribution of powers and recognition of rights in spain’s autonomous communities between 2004 and 201114 various spanish autonomous communities reformed their statutes of autonomy, in an effort to increase their range of powers within the limits set by the constitution. reforms included the introduction of a list of statutory rights. this gave rise to heated academic and political debates concerning the legal nature and constitutional conformity of these statutory declarations of rights15, which led to two constitutional court rulings (sstc 247/2007 and 31/2010). here the court considered the development of a multilevel model for the protection of fundamental rights. it accepted the constitutionality of statutory rights within such a model, but only provided they were regarded as mere principles or guidelines, not as true rights. this means that statutory rights inspire the activity of public power within the region, but can only be claimed at court if they have been developed in regional legislation. despite this limitation, a significant number of statutory rights have been recognised which have a direct impact on the issue at hand. some of them clearly mention gender identity, together with sexual orientation, among the potential grounds for discrimination. 12. draft bill for the real and effective equality of transgender people and for the guarantee of the rights of lgtbi. available at https://www.igualdad.gob.es/servicios/participacion/audienciapublica/paginas/2021/ apl-igualdad-efectiva-persona-trans-derechos-lgtbi.aspx [accessed: 31 march 2022]. 13. "lgtbi groups ahve urged the judiciary to issue its report so that the trans law can continue to be processed" eldiario.es 22/03/2022 https://www.eldiario.es/sociedad/colectivos-lgtbi-urgen-judicial-emitainforme-ley-trans-siga-tramite_1_8851249.html. [accessed: 31 march 2022]. 14. during this period, organic laws were passed to reform the statutes of autonomy in valencia, catalonia, the balearic islands, andalusia, aragon, castile and leon, navarre and extremadura. 15. the division in the doctrine between those who consider that the autonomous statutes are adequate instruments for recognising true fundamental rights of citizens and those who argue that they are not is clearly illustrated in the exchanges between díez picazo and francisco caamaño domínguez in a series of academic articles published in revista española de derecho constitucional, whose titles are expressive of the opposing positions. in 2006 (vol. 78), díez picazo published an article entitled "¿pueden los estatutos de autonomía declarar derechos, deberes y principios?" ("can autonomous statutes declare rights, duties and principles?). in the following issue (vol. 79), caamaño replied with an article entitled "sí pueden. (declaraciones de derechos y estatutos de autonomía)", ("yes they can. (declarations of rights and autonomous statutes"). díez picazo replied in turn (vol. 81) with another article entitled "de nuevo sobre las declaraciones estatutarias de derechos: respuesta francisco caamaño"("again on statutory declarations of rights: francisco caamaño's response"). see caamaño domínguez, 2007; cámara villar, 2011; díezpicazo, 2006, 2007. https://www.igualdad.gob.es/servicios/participacion/audienciapublica/paginas/2021/apl-igualdad-efectiva-persona-trans-derechos-lgtbi.aspx https://www.igualdad.gob.es/servicios/participacion/audienciapublica/paginas/2021/apl-igualdad-efectiva-persona-trans-derechos-lgtbi.aspx https://www.eldiario.es/sociedad/colectivos-lgtbi-urgen-judicial-emita-informe-ley-trans-siga-tramite_1_8851249.html https://www.eldiario.es/sociedad/colectivos-lgtbi-urgen-judicial-emita-informe-ley-trans-siga-tramite_1_8851249.html the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 90 others include more specific references. the andalusian statute of autonomy, for instance (organic law 2/2007, of 19 march), recognises everyone’s right to have their sexual orientation and gender identity respected and calls on public authorities to promote policies which guarantee the exercise of this right (article 34). similarly, the canary islands statute of autonomy (organic law 1/2018, of 5 november), obliges public authorities to recognise people’s right to their own gender identity and to guarantee nondiscrimination based on gender identity or sexual orientation. other statutes, although not specifically recognising a right to gender identity, do mention it. examples of this include the aragonese statute of autonomy (organic law 5/2007, of 20 april), which recognises the right not to suffer discrimination on the grounds of sexual orientation or gender identity (article 24.d), and the extremadura statute of autonomy (organic law 1/2011, of 28 january), which states that public authorities shall promote policies to guarantee respect for the sexual orientation and gender identity of all people (article 7.13). since 2009, statutory references to non-discrimination based on gender identity and the right to gender self-determination have been formalised in regional laws. in order to justify their region’s power to legislate in this field, as established in its statute of autonomy, these laws appeals to heterogeneous grounds. after all, we are dealing with a very broad issue, which affects a multitude of aspects of social reality and has a wide range of legal consequences. this is particularly clear, for example, in the explanatory memorandum of the valencian law:16 "with this law, the generalitat intends to develop a series of fundamental areas of competence which are attributed to it by the statute of autonomy. these comprise those included in the different sections of article 49, such as culture (section 1.4), social services (section 1.24), youth (section 1.25), protection of minors and the elderly (section 1.27), sports and leisure (section 1.28), and civil protection and public safety (section 3.14). [...] this law also aims to develop essential statutory powers covering education, (article 53) and public health institutions, (article 54) ". likewise, the andalusian law states in its explanatory memorandum: "in addition to developing the right established in article 35 of the statute of autonomy […], the autonomous community has sufficient powers in different areas to regulate each and every one of the aspects covered by this law. these include: andalusian public administrations (article 47), education (article 52), universities (article 53), research (article 54), health, sanitation and pharmacies (article 55), social services and minors (article 61), employment, labour relations and social security (article 63), media and audiovisual content services (article 69), sport (article 72), gender policies (article 73), data protection (article 82), organisation of basic services (article 84) and exercise of the functions and services inherent to the powers of the autonomous community (article 85)". 16. for a concise description of all the autonomous laws mentioned throughout the text, see table 1. laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 91 in turn, the preamble to the law of aragon refers to the transversality of the right to gender identity, which affects a broad range of subjects and areas of jurisdiction, while pointing out that regional legislation in this area need not come into conflict with national law: "the aragonese statute of autonomy provides regional public authorities with instruments and powers which guarantee the adequate protection of the fundamental rights and duties of its citizens in the educational, social, and cultural spheres, as well as family care, protection of minors and the elderly, regional administrations and administrative procedures. this enables the aragonese legislator to take a comprehensive approach to the various matters affecting the situation of transgender people without coming into conflict with the state or other administrations". autonomous communities also rely on article 9.2 ce to justify their legislative powers to protect people's gender identity, notably by promoting the effective equality among individuals and the groups to which they belong, whilst removing the obstacles that prevent or hinder their participation as citizens in political, economic, cultural and social life. the statute of autonomy of the community of madrid replicates article 9.2 ce almost literally (article 1.3). the regional law 3/2016, on comprehensive protection against lgtbiphobia and discrimination on the basis of sexual orientation and gender identity, refers to this: "article 1.3 of the region of madrid’s statute of autonomy, approved by organic law 3/1983, 25 february, proclaims that "the region of madrid, by facilitating the fullest participation in political, economic, cultural and social life, aspires to make the principles of freedom, justice and equality a reality for all its citizens". meanwhile, article 7.4 establishes that: “it is incumbent upon the public authorities of the region of madrid, within the limits of their jurisdiction, to promote the conditions for the real and effective freedom and equality of the individual and of the groups to which they belong, whilst removing the obstacles which prevent or hinder the participation of all citizens in political, economic, cultural and social life”. the case is similar in the galicia. the galician law states: "like article 9.2 of the spanish constitution, article 4.2 of the galician statute of autonomy lays the foundations for promoting effective equality between individuals, by stating that public authorities are obliged to ‘promote the conditions whereby the freedom and equality of the individual and the groups to which they belong are real and effective, removing any obstacles which prevent or hinder the participation of all galicians in political, economic, cultural and social life’". the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 92 the basque country law is a combination of the two previous examples. on the one hand, it refers to the statutory mandate for public authorities to guarantee the real and effective equality of citizens in the autonomous sphere; on the other, it calls for the development of new legislation to cover a range of issues which the region is responsible for regulating in relation to gender identity: "the basque country statute of autonomy’s organic law 3/1979, of 18 december, establishes in article 9.2 that the basque public authorities must monitor and guarantee the proper exercise of the fundamental rights and duties of citizens, as well as adopting the necessary measures and removing any obstacles to the freedom and equality of the individual and of any groups to which they belong, thereby facilitating the participation of all citizens in the political, economic, cultural and social life of the region. in title i of its statute of autonomy, the autonomous community establishes jurisdiction over various matters affecting the situation of transsexual persons, including the organisation, administration and operation of institutions and establishments for the protection and guardianship of minors (article 10.14); internal health (article 18.1), and, especially, social assistance (article 10.12). it is therefore necessary to make explicit reference to the application of the principle of non-discrimination in the free development of personality and, specifically, of gender identity, so that in the interpretation and application of the basque country’s legal system no one can be discriminated against on the grounds of their transsexual status". a look at the statutes of autonomy of the autonomous communities which have enacted legislation on the situation of trans people, or of lgtbi people in general, thus allows us to conclude that said legislation is well within the powers of the autonomous communities in question. the constitutionality of recognising trans and lgtbi people’s rights at a regional level appears to be beyond dispute. 4. the right to gender self-determination in the autonomous communities the autonomous communities which pioneered the process of passing specific laws on sexual and gender identity were navarre and the basque country, in 2009 and 2012 respectively (navarre updated its law in 2017). since then, various other autonomous communities have gradually followed suit, the most recent ones being the laws of the canary islands (law 2/2021, of 7 june, replacing a previous law of 2014) and la rioja (law 2/2022, of 23 february). currently, 14 of spain’s 17 autonomous communities have passed laws on trans people's rights. these include, in addition to those already mentioned, andalusia, catalonia and galicia in 2014; extremadura in 2015; the community of madrid, the balearic islands and murcia in 2016; aragon and the community of valencia in 2018; and cantabria in november 2020 (see table 1). a first distinction can be drawn between two types of legislation: those that deal exclusively with gender identity and those concerned with the rights to equal treatment laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 93 and non-discrimination of lgtbi persons. while the latter also deal with gender identity and the protection of trans persons, they may not do so to the same extent as the former (alventosa del río 2015: 759). the first group includes andalusia, aragon, the canary islands, la rioja and the basque country (see table 1); the second group includes the remaining nine autonomous communities which have legislated on the matter.17 another important distinction concerns the recognition or not of "gender self-determination": while some openly refer to it, others fail to legislate explicitly on this most controversial issue (both politically and dogmatically). we will return to this later. beyond these differences, regional laws have a number of common features. interestingly, most laws include a clarification of concepts, in an attempt to avoid terminological and interpretative imprecision and to establish the purpose of the provisions they contain. thus, the andalusian law literally adopts the definition contained in the yogyakarta principles and describes gender identity as "the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth, and includes personal physical perception" (article 3). it adds that it "may involve modification of bodily appearance or function through pharmacological, surgical or other means, provided that this is freely chosen", which should be understood to mean that it may not involve the change in external appearance or bodily function traditionally associated with transsexuality. similarly, the canary islands law defines gender identity as "the internal and individual experience of gender which is self-perceived and does not require any third party ratification. it may or may not correspond to the sex assigned at birth and may or may not involve the modification of appearance or bodily functions through pharmacological, surgical or any other means, providing that this is freely chosen". gender expression, on the other hand, is defined as "the way in which each person communicates or expresses their gender identity through their aesthetics, language, behaviour, attitudes or other manifestations, which may or may not coincide with those considered to be related to the socially assigned gender according to the sex at birth". a trans person is "any person whose gender identity does not match with that assigned at birth or whose gender expression does not correspond to the social norms and expectations associated with the sex assigned at birth". as such, “for the purposes of this law, and without prejudice to other social meanings, the term trans covers multiple forms of gender identity expression such as transsexuals, transgender, transvestites, queer, and non-binary gender identities and expressions, as well as those who define their gender as "other" or describe their identity in their own words" (article 2). other laws, such as those of aragon and cantabria, similarly describe the concept of trans persons, but not that of gender identity. thus, the aragonese law defines trans 17. in the case of navarre, the first autonomous community to approve a specific law to address the situation of trans people, the foral law 12/2009, of 19 november (establishing non-discrimination on grounds of gender identity and recognition of the rights of transgender people), initially focused on gender identity, but was repealed by the foral law 8/2017, of 19 june (concerning the social equality of lgtbi+ people), which added provisions for lgtbi+ people as a whole. the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 94 persons as "any person who identifies with a freely self-determined gender or gender expression regardless of the gender they were assigned at birth" and adds that "the term "trans" covers multiple forms of gender identity expression or subcategories such as transsexual, transgender, intersex, intergender, queer, agender, crossdressing, etc." (article 1). cantabria offers the following definition of a trans person (article 3.g): “anyone who identifies with a different sex or who expresses their sexual or gender identity differently from their biological sex. the term trans encompasses multiple forms of expression of sexual or gender identity as well as subcategories such as transgender, gender variant, or those who define their gender as other or describe their identity in their own words. the term trans is used in this law to encompass all the different forms of sexual or gender identity, unless specific reference to one of the variants is required”. the catalan law, on the other hand, chooses to dedicate part of its preamble to establishing what the term "transgender" means within the scope of the law (preamble): "this law uses the term ‘transgender’ to refer to persons who feel that they are of the opposite sex to the one they were assigned at birth according to their biological characteristics, as well as to persons who do not identify exactly with being either male or female according to the traditional concept of gender, regardless of whether or not they have undergone surgery. transsexual persons are therefore included within the term transgender. transsexuality is also included in the generic term "transidentity", which defines the condition of transgender". the law of the community of madrid defines sexual or gender identity as follows: "the self-perceived sex of each individual, which does not have to be accredited or determined by means of a psychological or medical report. it may or may not coincide with the sex assigned at birth, and may or may not involve modification of appearance or bodily function by pharmacological, surgical or other means, according to the will of the person" (article 3.p). the definition of "transsexual persons" in the basque country law also contains an explicit rejection of the pathologisation of this condition (article 3): "the notion of transsexuality refers to a situation whereby the sex that a person was assumed to be at birth, based on their genitalia, does not coincide with the sex that they perceive and know themselves to be. transsexuality therefore, can only be understood by accepting what a person freely expresses and, like sexual identity, it cannot be diagnosed. it is not a disease, a disorder or an anomaly, but is part of human diversity". in short, most regionals legislators introduce a number of conceptual clarifications in order to avoid confusion and interpretative misunderstandings around concepts which might not yet be sufficiently established in the legal field –the aforementioned stc laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 95 176/2008, with its confusion between "sexual orientation" and "gender identity", offers a telling example of this. another common element, this one invariably found in all the laws under examination, is the obligation for public authorities to act in accordance with the antidiscrimination clauses in the field of sex-gender identity. thus, the law of aragon states (article 5): "in accordance with this law, any form of discrimination on the grounds of gender identity and expression or sexual characteristics is prohibited. this includes direct or indirect discrimination, discrimination by association or by accident, multiple discrimination, harassment, inducement, instruction to discriminate, retaliation or failure to comply with positive action measures deriving from normative or conventional obligations, and secondary victimisation due to inaction by those who have a duty of care”. according to the law of the region of murcia (article 9.2): "no person may be subjected to discrimination, harassment, criminalisation or punishment on the grounds of their sexual orientation, gender identity and/or gender expression. specifically, people must be treated in accordance with their expressed gender identity, which is how the person presents themselves to society, regardless of their legal sex. the autonomous community of the region of murcia will act in accordance with these principles in each and every case in which it is involved". the law of the autonomous community of navarre provides (article 6.1): "the public administrations of the foral communities and the ombudsman of navarre shall ensure the right to non-discrimination, regardless of the sexual orientation, gender expression or sexual identity of the person or the family group to which they belong. these administrations and public institutions may act ex officio, regardless of whether a legal or civil complaint has been filed ". these clarifications are appropriate for interpretative or even symbolic purposes, but unnecessary in prescriptive terms, as they merely reiterate article 14 ce. more interesting, because of their possible practical consequences, are anti-discrimination provisions which prescribe that public authorities must combat transphobia. this is the case of the andalusian law (article 7). similarly, the basque law (article 5.1) obliges regional public administrations to design and implement proactive and wide-ranging policies to facilitate the support needed by trans people, undertaking awareness-raising campaigns to combat the prejudices underlying gender identity related violence, as well as awareness-raising training programmes for all civil servants on issues surrounding non-discrimination on grounds of gender. there is also commitment to ensuring that the media are plural and nondiscriminatory in terms of gender identity; to supporting the recognition of organisations and the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 96 groups which promote and protect the rights of transsexual people; to encouraging basque universities to include and promote training, teaching and research on transsexuality; and to promoting greater social participation in the field of leisure and sports. the labour market is a particularly fertile ground for discriminatory behaviour against trans people. for this reason, most laws include explicit measures to combat discrimination in this area, as well as active policies to facilitate the employment of trans people. thus, the cantabrian law declares (article 28) that the competent regional ministry must adopt a series of measures aimed at preventing and eliminating all forms of discrimination based on sexual orientation or sexual and gender identity in terms of access to employment, recruitment and working conditions. these include the development of anti-discriminatory codes of conduct and protocols for action in situations of harassment and discrimination and the adoption of active measures to promote access to employment, as well as grants or subsidies. similarly, through the labour inspectorate, the law of catalonia requires real and effective guarantees concerning non-discrimination on grounds of sexual orientation, gender identity or gender expression, as well as active dissemination and awareness-raising to achieve equal opportunities and non-discrimination in the workplace (article 20.1). other laws, such as that of galicia (article 12.7), also contemplate the elaboration of equality and good practice protocols in the work environment in terms of non-discrimination on grounds of sexual orientation and gender identity. most regional laws also refer to healthcare, notably including the overall principle that health care must be guaranteed in accordance with gender self-identity. some, such as the laws of aragon or the canary islands, also specify that trans peoples’ rights must be taken into consideration on their admission to wards or centres when there are different facilities according to sex. in terms of the treatments offered by the regional public health systems, the various regional laws provide for the inclusion of the process of sexual reassignment and other related procedures in their range of services. thus, for example, many autonomous communities include treatments aimed at modulating the tone and pitch of the voice "providing it is not for purely aesthetic or cosmetic reasons, but is clearly related to gender identity" (article 10.7 andalusian law). aragon (article 13) offers similar services upon request, such as hormone treatment, genital surgery, breast augmentation and masculinisation of the chest as well as the necessary prosthetic material and treatments to modulate vocal tone and pitch. it also offers hormone blockers at the onset of puberty alongside complementary treatments, the implementation of which may not be conditional on prior reassignment surgery. in addition, efforts have been made to remedy cases of discrimination, based on national legislation, in having access to assisted human reproduction techniques. discrimination results from a ministerial order of 201418, which excluded single women and trans people from access to public funding for this type of treatment. to address 18. order ssi/2065/2014, of 31 october, amending annexes i, ii and iii of royal decree 1030/2006, of 15 september, which establishes the national health system’s range of common services and the procedure for updating them. laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 97 this issue, most autonomous communities guarantee access to assisted reproduction techniques to all persons with gestational capacity regardless of their sexual orientation and marital status (article 12.2 law of aragon; article 22.3 law of the balearic islands; article 21.3 law of cantabria, article 16.k law of catalonia; article 16.2 law of the valencian community; article 12.2 law of extremadura; article 17.3 law of murcia). fewer laws, such as the law of the canary islands (article 28.1.b), expressly mention both trans and intersex persons with gestational capacity as being entitled to assisted reproduction treatments. in the case of people who decide to undergo hormone treatments there are also examples where the freezing of gonad tissue and reproductive cells for future recovery is offered before treatment begins (for example, article 16 of the law of aragon). another issue ignored by national legislation, and addressed by most regional laws, is the situation of intersex people. these are defined as people who, at some level in their chromosomal, gonadal or sexual characteristics, present a sexual or reproductive anatomy which is different to those typically defined as male or female. some autonomous communities openly ban conversion treatment unless it has been expressly requested. this is also the case in genital surgeries which are not based either on the decision of the person concerned or health reasons related to ensure biological functionality (article 4.4 law of aragon, article 4.3 law of the canary islands; article 23.c) law of cantabria; article 11.2 law of extremadura). one of their aims is to eradicate genital modification surgery on newborn babies with ambiguous biological sex markers. some laws go further and include specific provisions to address the reality of intersex people and non-binary identities. in this sense, the law of catalonia envisages the creation of specialized units for the study and care of people with intersex variations (article 49). others, such as the laws of murcia and extremadura, cover the development of special protocols for the comprehensive care of trans people. these are highly significant provisions in terms of the real and effective treatment which intersex people will receive, as well as being of symbolic importance (articles 16 and 11, respectively). in this sense, they represent a step towards greater flexibility in order to accommodate people who traditionally neglected because they do not fit into the traditional binary categories. regional legislators have also tried to address the recognition of the rights of trans minors. whilst the national legislator has not yet incorporated stc 99/2019, regional laws contain specific provisions aimed at ensuring that minors can also gain access to the process of identity change and safeguarding all their rights. in this sense, for example, the andalusian law recognises in article 19 "the right of transsexual minors to develop physically, mentally, morally, spiritually and socially in a healthy and comprehensive manner, in conditions of freedom and dignity", which would include "the determination and evolutionary development of their own gender identity and the right to freely use the name they have chosen". at the same time, it is envisaged that parents or legal guardians will collaborate with regional authorities, with the minor’s explicit consent, always taking into account their suitability and cognitive capacity. the most complete example in this sense would be the law of la rioja, which dedicates a whole chapter to trans minors (part iv, chapter i). it establishes, amongst other provisions, that "children and adolescents’ right to gender self-identity and expression must be respected in all social the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 98 environments, whilst also receiving the necessary support and assistance when they are victims of discrimination or violence ". here as in other areas, moreover, the various regional laws have tended to broaden and deepen the national provisions in the field of social protection. thus, support and awareness-raising measures are envisaged in the areas of family, health, education, culture, sports, media, access to justice, etc. the objective is shared: the promotion of trans people's rights and the eradication of discriminatory behaviour against them. there are, however, substantial regional differences in the degree of specificity and regulatory rigour, which leads to significant geographical differences in terms of the recognition of these rights. finally, most autonomous communities take a stance on one of the most divisive and controversial questions, both politically and theoretically, concerning the rights of trans people, i.e., the role of self-determination. apart from galicia, the other 13 autonomous communities all recognise the right to gender self-determination and reject any medical requirement for the administrative recognition of gender self-identity beyond the declaration of intent by the person concerned. the andalusian law specifically recognises the right to gender self-determination (article 2), and expressly excludes that a person may be obliged to undergo treatment, medical procedure or psychological examination to exercise this right (article 5). the laws of extremadura and murcia are similar in intent, stipulating, in identical terms, that "no person may be obliged to undergo treatment, medical procedure or psychological examination that restricts their freedom of gender self-determination" (articles 3.1.g in both laws). similarly, the law of the community of madrid provides that "in no case will a psychological or medical report be a requirement to prove gender identity" (article 4.1). the law of cantabria also recognises the right to gender self-determination and, along similar lines, specifies that "no person may be required to undergo tests or examinations to determine their sexual orientation or sexual or gender identity, especially when this affects or may affect their access to employment, benefits, or the exercise, or enjoyment of any other right or opportunity, whether in the public or private sphere" (article 4. 4). the law of the balearic islands stipulates that "transsexual persons may avail themselves of the provisions of the law without the need for any diagnosis of gender dysphoria or medical treatment" (article 22.4). trans people are also exempt from any medical or psychological evaluation in order to access the rights contained in the laws of navarre and valencia (articles 41.4; 5.1.a), whilst the aragonese law expressly refers to the recognition of "selfdetermined gender identity" (article 16). the autonomous community of la rioja is the most recent region to legislate on equality, recognition of gender identity and expression and the rights of trans persons and their families. law 2/2022, of 23 february, sets out the right to self-determination of gender (article 4) and explicitly rules out any requirement for medical diagnosis of any pathology or to undergo any kind of treatment: to "accredit gender identity it shall be sufficient for the person concerned or, where appropriate, their legal representative, to expressly state their identification as a woman, man or non-binary person, as well as registering the name which they wish to use if it does not coincide with that expressed in the official documentation on file" (article 39.5.a). although the 2012 basque country law failed to include the right to gender selfdetermination, this was amended in 2019, also specifying that trans people could benefit laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 99 from the provisions of the law without the need for prior psychiatric or psychological diagnosis or report, or any medical treatment. the law of catalonia, whilst not specifying the concept of "gender self-determination", does expressly state that "a diagnosis of gender dysphoria or medical treatment" is not necessary (article 23.4). originally, the canary islands law 8/2014, of 28 october, concerning non-discrimination on grounds of gender identity and recognition of the rights of trans persons, did not consider gender selfdetermination as a right, and stated that to be considered transgender, a person required a report by a member of the college of professional psychologists confirming serious and persistent dissonance lasting at least 6 months between the morphological sex at birth and the self-perceived gender identity. however, this law has now been replaced by law 2/2021, of 7 june, concerning social equality and non-discrimination on grounds of gender identity, gender expression and sexual characteristics, which does expressly recognise the full exercise of free self-determination of gender. furthermore, this law prohibits any person from being encouraged, or in any way coerced, to undergo treatment, medical procedure or psychological examination that would restrict their freedom of self-determination and expression of gender identity or sexual characteristics, and expressly recognises that gender identity is an internal experience of the individual that cannot be defined by third parties and does not necessarily involve modification of appearance or bodily functions (article 2.1). the 2014 law of galicia is therefore the only existing regional law which still fails to recognise gender self-determination as a right. unlike the previously discussed laws, neither does it specify that people are exempt from having to prove their transgender status with a medical report. it does contain anti-discrimination measures but these are aimed at the lgtbi collective as a whole, and it lacks explicit or well-developed provisions concerning the particular realities of trans people. in contrast, the regional laws that do include the right to self-determination require that all public administrative bodies respect gender self-identity for all citizens. this includes the stipulation that, within the limits of their jurisdiction, regional public administration ensure that administrative documentation reflects self-perceived gender identity. the laws usually refer, generically, to administrative documentation being adequate to the sexual and emotional diversity of lgtbi persons, and to the heterogeneity of the family. some, such as the law of the community of madrid, state that access to public services and benefits must guarantee that transsexual, transgender and intersex persons can be named and treated in accordance with the gender with which they identify (article 5.2). others, such as the law of the balearic islands (in article 22.1.b), specifically refer to educational centres, establishing that, in the case of transgender persons their chosen name shall be used in administrative documentation for public display. the most comprehensive provisions with regard to administrative documentation, however, are those contained in the laws that deal exclusively with the reality of trans people. this is the case of the laws of andalusia, the canary islands, aragon and the basque country. thus, the law of the canary islands stipulates (article 7.4): "in order to accredit gender identity, it will be sufficient for the interested party, or where appropriate, their legal representative, to expressly state their identification as a woman, man or non-binary person. the same applies to the name by which they identify themselves if it does not coincide with the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 100 that expressed in the official documentation on file. the declaration of gender self-identity may be made either by means of a standardised written request, or online, making use of the legally established electronic signature systems, as well as by going in person to the corresponding registry office": the andalusian law (article 39.2) establishes that there will be a specific regulatory procedure for accreditation of identity, provided that certain criteria are met: that the documents provided for in the law be issued free of charge, that they require no intermediary, and that they imply no obligation to provide or accredit any type of medical documentation. the basque country law (article 7.2) legislates on the right to privacy of trans persons, and the elimination from the files, databases and other documentation belonging to the administration of any reference to the previous identification of the person or data which makes their transsexual reality known, with the exception of essential information in their confidential medical record. in a similar sense, the law of aragon (article 7) states that the regional public administrations shall provide the necessary assistance to make the necessary changes in the files of private or state bodies. to conclude, thirteen autonomous communities have made legal commitments to the institutional recognition of gender self-determination based on the will of the individuals concerned. rubio marín and osella (2020) describe these models of identity recognition as elective gender regimes. they enable the reassignment of sex in administrative documentation based entirely on the recognition of the right to self-determination of sexual identity and the will of the individual. in contrast to this model of gender definition, rubio and osella also identify other approaches, which they define as heteroassignment. this corresponds to legislations which fail to consider the possibility of rectifying the sex assigned at birth, or where reassignment is legally covered, but is dependent on external evaluation or classification criteria (the confirmation of a diagnosis of gender dysphoria, undergoing hormone treatments and/or reassignment processes and surgeries, etc.). they use this classification to draw a comparative analysis of the legislation and case-law in force on the matter in different jurisdictions. they look specifically at italy, india, colombia and belgium. though each of these countries has a different approach to gender identity, however, it seems that issues of overlapping elective and heteroassignment gender regimes do not arise in them. in spain however, this anomaly does exist. the heteroassignment approach provided for in national law 3/2007 coexists with elective regimes in thirteen of the seventeen autonomous communities, i.e., in the majority of the country, thereby affecting the large bulk of the population. this means that there may be discrepancies between the identity recognised in the administrative documentation issued by autonomous communities (think of regional health cards) and that issued by the state (think of the national identity card). in order to avoid complications resulting from these possible discrepancies, regional laws stipulate that individuals’ legal rights and obligations will not be altered, and that the national identity card number will remain valid. likewise, when an administrative procedure requires that data included in the national identity document be recorded, the name chosen for reasons of gender identity shall be recorded to prevent suffering or discrimination laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 101 (articles 9.1 d) law of andalusia; 7.3 law of the canary islands; 7.3.c) law of aragon). in this way, regional laws attempt to patch up a situation which is essentially unsatisfactory. the fact that a person can have their gender identity recognised by the autonomous public administration, but not by national institutions, represents a contradiction which can negatively impact the lives of trans people. table 1: autonomous community laws concerning gender identity19 autonomous community law year of approval gender self determination party ruling the autonomous community at the time of approval andalusia regional law 2/2014, 8 july: comprehensive law on nondiscrimination on the basis of gender identity and on the recognition of the rights of transsexual people 2014 yes psoe aragon regional law 4/2018, 19 april, regulating gender identity and expression, social equality and nondiscrimination 2018 yes psoe canaries regional law 2/2021, 7 june, on non-discrimination on the basis of gender identity, gender expressions and sexual features 2021 yes psoe cantabria law of cantabria 8/2020, 11 november, on the guarantee of rights of lesbian, gay, trans, transgender, bisexual and intersex persons and non-discrimination on grounds of sexual orientation and gender identity. 2020 yes prc catalonia regional law 11/2014, 10 october, to guarantee the rights of lesbian, gay, bisexual, transgender and intersex people and to eradicate homophobia, biphobia and transphobia. 2014 yes ciu community of valencia law 23/2018, 29 november, on the equality of lgtbi persons. 2018 yes pspv-psoe extremadura regional law 12/2015, 8 april, on social equality for lesbian, gay, bisexual, transsexual, transgender and intersex people, and on public policies of non-discrimination on the basis of sexual orientation and gender identity 2015 yes pp 19. source: author’s own elaboration. the right to gender self-determination in spain. lessons from autonomous communities the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 102 autonomous community law year of approval gender self determination party ruling the autonomous community at the time of approval galicia regional law 2/2014, 14 april, on the equal treatment and non-discrimination of lesbian, gay, transsexual, bisexual, and intersex people 2014 no pp balearic islands regional law 8/2016, 30 may, to guarantee the rights of lesbian, gay, trans, bisexual and intersex people, and to eradicate lgtbi-phobia 2016 yes podemos la rioja law 2/2022, 23 february, on equality, recognition of gender identity and expression and the rights of trans persons and their families in the autonomous community of la rioja 2022 yes psoe madrid regional law 2/2016, 29 march, on gender identity and expression, equal treatment and non-discrimination regional law 3/2016, 22 july, on comprehensive protection against lgtbiphobia and discrimination on the basis of sexual orientation and gender identity 2016 yes pp murcia regional law 8/2016, 27 may, on social equality for lesbian, gay, bisexual, transsexual, transgender and intersex people, and on public policies of non-discrimination on the basis of sexual orientation and gender identity 2016 yes pp navarre regional law 8/2017, 19 june, on social equality for lgtbi+ people 2017 yes upn basque country law 14/2012, 28 june 2012 on nondiscrimination on grounds of gender identity and recognition of the rights of transgender people. 2012 yes psoe-ee 5. conclusions despite the theoretical and institutional efforts made to deconstruct gender roles and question sexual determinism, the sex-gender system remains a key factor in the definition of peoples’ role in society. the weight of these categories in the construction of individual identity leads to the marginalisation and suffering of those who do not fit within the narrow identity parameters of biological binary categories, presented as immutable. this is leading to increasing demands for the recognition of dissident sex-gender identities, based on self-determination. the possibility for people to self-identify as being of a gender other than the one assigned at birth seems to be gaining social acceptance in spain. this has led to a relaxation of the legal criteria for sex-gender determination, as laura flores anarte the age of human rights journal, 18 (june 2022) pp. 83-104 issn: 2340-9592 doi: 10.17561/tahrj.v18.7106 103 established in national law 3/2007. however, this law suffers from several structural problems: (1) it pathologizes trans identities and medicalises sex-gender reassignments; (2) it remains within the binary framework, leaving out identities beyond the traditional male and female; (3) minors and foreigners are excluded in absolute terms; (4) it does not address the reality of trans people comprehensively. regional parliaments have tried to respond to these shortcomings within the scope of their jurisdictions. they have done so by means of laws that either focus specifically on trans people or cover the lgtbi community in general, addressing the various situations in which their rights may be compromised for discriminatory reasons. in an effort to make up for the inadequacies of the national framework they pay special attention to areas such as education and health, but also underline the obligations of the public authorities to protect people with dissident sex-gender identities in all the different spheres of life. they also address the reality of intersex people and minors. moreover, 13 of the 14 autonomous communities which have legislated on the matter (galicia excepted) recognise the right to gender self-determination and exclude any medical requirement for the administrative recognition of gender identity, relying solely on the person’s declaration of will. these legislative advances towards a depathologising concept of sexual identity and gender expression are undoubtedly significant. yet their limited scope and heterogeneity -some more precise and developed, others more general and presenting important omissions-, lead to an unequal situation regarding the recognition of trans people's rights, depending on the territory. it is the downside of relying on a regional model for the recognition of rights. these disparities could be remedied with the introduction of more comprehensive national legislation based on self-determination. this could provide trans people with both the administrative recognition and the necessary public resources required to overcome the situation of discrimination and social marginalisation from which they still sorely suffer. references alventosa del río, josefina. 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(1986) [1975]. el tráfico de mujeres: notas sobre la economía política del sexo. revista nueva antropología 8(3), pp. 95-145. rubio marín, ruth y osella, stefano. (2020). the new constitutional right to gender identity: adding choice, categories or turning contents subjective and fluid. a constitutional and comparative enquiry. revista española de derecho constitucional 118, pp. 45–75. https://doi.org/10.18042/cepc/redc.118.02 rodríguez ruiz, blanca. (2010). hacia un estado post-patriarcal. feminismo y cuidadanía. revista de estudios políticos 149, pp. 87-122. salazar benítez, octavio. (2015). la identidad de género como derecho emergente. revista de estudios políticos 169, pp. 75–107. https://doi.org/10.18042/ cepc/rep.169.03 scott, joan. (2008) [1986]. género e historia, méxico: fce, universidad autónoma de la ciudad de méxico. received: december 1st 2021 accepted: april 27th 2022 https%3a%2f%2f www.inmujeres.gob.es%2factualidad%2fnovedadesnuevas%2fdocs%2f2018 https://doi.org/10.18042/cepc/redc.118.02 https://doi.org/10.18042/cepc/rep.169.03 https://doi.org/10.18042/cepc/rep.169.03 the right to gender self-determination in spain. lessons from autonomous communities* abstract 1. introduction 2. the recognition of self-defined gender identity in the spanish legal system 3. distribution of powers and recognition of rights in spain’s autonomous communities 4. the right to gender self-determination in the autonomous communities 5. conclusions references what is at stake in the recognition of non-normative identities the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 39 what is at stake in the recognition of non-normative identities?* blanca rodríguez-ruiz** abstract: the deconstruction of the binary sex-gender system that sustains modern western states demands the deconstruction of its dichotomies and their excluding effects on non-normative identities. this demands in turn that gender self-determination be recognised as a right. in spain this right has been given constitutional status (stc 99/2019), yet it is currently not articulated in legislation. proposals of a new legal framework have met with resistance and an ensuing need for compromise. unless it grasps and upholds the full constitutional extent of the right to gender self-determination, however, legislation risks being born both unconstitutional and obsolete, out of pace with social demands. keywords: sex-gender system, self-determination, trans, intersex, non-binary. summary: 1. introduction. 2. feminism and binary boundaries. 3. binary dissenters. 4. gender selfdetermination in spain. constitutional grounds and legal hurdles. 4.1. current state of affairs. 4.2. on the brink of change?. 5. final reflections. 1. introduction in as far as they entail men’s power over women, feminism is about the deconstruction of sex-gender systems, of the “set[s] of arrangements by which a society transforms biological sexuality into products of human activity, and in which these transformed sexual needs are satisfied” (rubin 1975: 159). a sex-gender system lies at the core of every society’s “cognitive schema”, of the “conceptual structures [people use] to organize their experience into cognitive bits which make sense to them, and which may be effectively communicated to others” (devor 1989: 45). in the modern west, cognitive schema, our sources of understanding and shared meanings, are constructed upon a binary sex-gender system, a male/female divide that is both rigidly dichotomous and strongly hierarchical, with the male side openly taking the upper hand and providing the “dominant gender schema” (devor 1989: 47 ff.). theorised as the result of the sexual contract that underlies the social contract, the foundational myth of states in the modern west (pateman 1988), this male/female divide permeates the construction of citizenship within them through a whole series of further (dichotomous and hierarchical) pairs: public vs. private; active vs. passive; strong vs. weak; independent vs. dependent; rational vs. irrational, intuitive, emotional. *article published as part of the grant i+d+i (pid2019-107025rb-i00) ciudadania sexuada e identidades no binariarlas: de la no discriminación a la integración ciudadana / sexed citizenship and non-binary identities: from non discrimination to citizenship integration (binasex), funded by mcin/ aei/10.13039/501100011033. ** associate professor (profesora titular) of constitutional law, universidad de sevilla, spain (blancarr@us.es). what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 40 in its attempts to deconstruct gender power dynamics, feminism has questioned these binary divides. it has questioned in particular their hierarchical component and has insisted on the need to deprive sex-gender dichotomies of the hierarchical elements that feed them. to this end, feminism has emphasised the need to include women on an equal footing with men within the side of these dichotomies where power lies (the public, active, strong, independent, rational side). whether this aim is pursued through means of formal equality, or through policies that take into account women’s specific needs and requirements, resulting from men’s and women’s different starting position, the aim is to make power accessible to women and to men alike, thus leading to the actual disintegration of power in sex-gender terms. this paper aims to present this strategy as incomplete. it suggests that the route to end men’s position of power is to focus, not only on the hierarchical elements that feed modern western sex-gender, but also on the dichotomies that sustain it. to this end, it argues that feminism needs to reach out beyond cis-women’s claims and find allies in sex-gender binary dissenters. it argues, specifically, that it needs to reach out to gender identities and expressions placed beyond binary dichotomous boundaries (2). from here it moves on to focus on the intersex and on non-binary identities, on how they both challenge our sex-gender system, and on how this is reacting to them (3). an analysis ensues of the position of sex-gender identity dissenters in the spanish legal framework as it now stands and as shaped in the draft bill on lgtbi rights currently under consideration (4). the paper ends with some final reflections on gender identity as a cognitive category and the importance of eradicating it as a source of power. 2. feminism and binary boundaries in its efforts to combat men’s position of structural power over women, feminism has concentrated on its hierarchical pillars, the ones that grant men control over the spheres where power is exerted. feminism endeavours to correct this situation and to imbue these spheres with gender parity. the problem is that men’s control starts with the very definition of those spheres, with their monopoly of the capacity to call the shots, to pick the (power) games and to set the rules of those games to fit their own profile. this leaves women either out of those games or at a structural disadvantage when joining them. by focusing on the hierarchical element of the sex-gender system, feminism often loses sight of this. when it does, it runs the risk of confirming the very sex-gender system it set out to question and combat. it runs the risk of remaining stuck in what carole pateman labelled as the “wollstonecraft dilemma” (pateman 1989: 196-197), by reference to the two routes that appear since the enlightenment to be available to women in search of full citizenship. these are the routes of equality and of difference. although frequently perceived and constructed as complementary, both routes are mutually exclusive: aspiring to equal rights with men is incompatible with vindicating specific rights for women that take their specific needs and concerns into account. more importantly, they are both problematic, as they remain entrenched in the very sex-gender system that they aspire to overthrow. equality involves extending to women the rights that define male citizenship and which men have designed for themselves; difference involves claiming women’s blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 41 specific needs and concerns as differentiated from those of men. one way or the other, both of them confirm men as points of reference in the construction of modern citizenship. both these routes, pateman concludes, “remain within the confines of the patriarchal … state, and make women’s access to full citizenship impossible to achieve” (1989: 196–197). in order to break the confines of patriarchal states, in order to question men’s experiences as points of reference, feminism needs to go beyond questioning women’s structural inferiority. it needs to question the (dichotomous) binary sex-gender system itself. realising this leads to the further realisation that the sex-gender binary is built upon the subordination of women to men, but also upon the exclusion of everyone who does not fit within the straightjackets of its dichotomies. in order to deconstruct the sex-gender system of the modern west, feminism must thus reach out to all those with non-normative sexual orientations (wittig 1992) and/or sex-gender identities, and embark with binary dissenters on a project to deconstruct the sex-gender (dichotomous) binary at its core. in this project, trans identities are obvious allies. “by definition, a transsexual is a person whose physical sex is unambiguous, and whose gender identity is unambiguous, but whose sex and gender do not concur” (devor 1989: 20). by disconnecting gender from sex, by exposing gender as an identity that is constructed and performed, and turning it (eventually along with sex) into a matter of choice, trans identities lay open the artifice and performativity (butler 1990) that feeds our sex-gender system and its strictures. their recognition counts with increasing support at the international and supranational levels through instruments of soft law, such as the yogyakarta principles (2006) and yogyakarta principles plus 10 (2017),1 or resolution 2048 (2015) of the parliamentary assembly of the council of europe.2 it is also gaining recognition by the european court of human rights (ecthr) and the interamerican court of human rights, as well as within states. the trend here is towards protecting people’s gender identity as part of their right to privacy and as part of their right to autonomy or self-determination, in turn a defining feature of citizenship in any democratic society. although challenging to the foundations of our sex-gender system, however, in and of themselves trans identities do not necessarily challenge its dichotomies. these could even be reinforced by binary sex-gender reassignments, particularly where sex reassignment surgery, medical realignment and/or external assessment of the ability to live in the opposite sex role are required, as part of the “born in the wrong body” narrative (agha 2019: 66-67). our sex-gender system could thus be confirmed as a duality of mutually exclusive halves, each gaining existence, like gestalt figures, by the blurring of the other. questioning modern sex-gender dichotomous construction requires us to take a further step right out of it and engage with identities and/or their expressions that place themselves beyond pre-defined binary poles, be it in terms of sex, gender, or a combination of both. it is to these identities that we shall now turn. 1. both available at: http://yogyakartaprinciples.org/principles-en/official-versions-pdf/. [accessed: 10 november 2021]. 2. available at: https://pace.coe.int/en/files/21736/html. [accessed: 10 november 2021]. http://yogyakartaprinciples.org/principles-en/official-versions-pdf https://pace.coe.int/en/files/21736/html what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 42 3. binary dissenters let us begin with the intersex. intersex are people whose biological sex markers do not fit neatly within either the male or the female category. because gender dichotomies allegedly rely on biological sex dimorphism, the intersex pose serious theoretical and practical challenges to western modern sex-gender. rather than faced, these challenges have been largely ignored. as a result, intersex people have been consigned to irrelevance, turned into the (modern) bodies that do not count, that do not matter (butler 1993), that do not even exist. according to un data from 2015, though, between 0,05% and 1,7 % of the world population is intersexual.3 the percentual range aims to accommodate all different kinds of intersexuality. “perfect” intersexuality is rare (around 0,05% of the population). its less-than-perfect varieties, on the other hand, are rather common and expand over a wide spectrum, the result of various biological factors and combinations thereof. these factors relate to hormones, chromosomes, inner gonad and external genitals, all of which have a say in the shaping of biological sex. not all of them, however, always respond to sex dimorphism, or necessarily point in the same dimorphic direction. surprisingly often they do not. there are frequent cases of disorders (of differences) of sex development (dsd), as the sources of intersexuality have been termed: atypical chromosomal development; irregularities in the production of hormones (mostly androgens); atypical development of gonads; atypical external genitalia. intersexuality can result from any of these developmental occurrences. each can also be present in a variety of forms and can interact with one another in a multiplicity of ways, which may be more or less easy to perceive: some cases of intersexuality are visible at birth; others show during infancy or puberty; others do not till adulthood; some are never found out. this makes intersexuality a rich reality, one that is complex to map. its typologies have been the object of various different classifications mostly dependent on the cultural context and the medical conventions stemming from it (kessler & mckenna 1978, pp. 42 ff.). just as a social system’s most revealing feature is the way it approaches its minorities, the way intersexuality is approached is most revealing of the dynamics inherent in a given construction of gender. in the words of suzanne kessler, “gender is a product [and a reflection] of the way intersexuality is managed” (kessler 1998: 111). it is in this sense revealing that in the west intersexuality became an issue, indeed an obsession, during the xix century, when the gender binary was cast in the building stones of our modern states. pre-modernity perceived the intersex as part of a continuous line between its male and its female extremes. this is so at least in the context of what thomas laqueur (1990) has called the “one-sex model”, a model where all sex-gender identities were seen as variations of the male one, regarded as superior and as point of reference for all others. in this one-sex model, which according to laqueur prevailed in the west from classic antiquity until the xviii century, the differentiating factor between male and female was not so much sex as gender, not so much biology as the social roles attributed to men and women. although this account has been questioned in its historic faithfulness, concerning the long prevalence of the one-sex model; although it seems more likely that the 3. united nations office of the high commissioner for human rights (2015): fact sheet. intersex. https:// unfe.org/system/unfe-65-intersex_factsheet_english.pdf. [accessed 10 november 2021]. https://unfe.org/system/unfe-65-intersex_factsheet_english.pdf https://unfe.org/system/unfe-65-intersex_factsheet_english.pdf blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 43 one-sex model coexisted with the current binary dichotomous construction; although the latter appears to have started to gain terrain over the former already in the renaissance (king 2016); although this might all be so, the one-sex model appears to have had a space of its own in pre-modern western culture and to have accommodated intersexuality somewhere along the sex-gender continuum. to be sure, intersex people did not enjoy legal recognition, they were rather assigned to a binary (male or female) gender identity; yet they were granted some level of sex-gender expression, as they were allowed to have their identity reassigned at puberty (foucault 1980: viii; dose 2014: 70). there were some modern attempts to revive the one-sex model and the idea of gender as a continuum. most notable is the work of magnus hirschfeld (1868-1935), which elicited violent reactions by the nazi regime (see for all hirschfeld 1918 [2015ed.], dose 2014). by and large, however, the consolidation of modern sex-gender dichotomies in the xix century turned intersexuality into a conceptual impossibility. this brought an obsession with the intersex. hermaphrodites, as they were then called, became strange bodies, the object of obsessive medical and legal attention, so difficult to accommodate that they were constructed as non-existent, a mere “appearance”. hermaphroditism was treated as pseudo-hermaphroditism, with every case being but an “apparent” case (foucault 1980; fausto-sterling 2000 [2020]: 40). even doctors frequently dealing with it sustained that all cases were, could only be, pseudo-cases (dreger 1998: 107). “real” biological sex could only be male or female. once thus defined, our sex stood as the marker of our gender and, with it, of our “real” identity in the broadest possible sense. as michel foucault said, “[a]t the bottom of sex, there is truth”, since “our sex harbours what is most true about ourselves” (1980: xi). any deviation from our (binary, dichotomous) sexual truth could not be but a misconception, or a case of deception. in order to turn sexual dimorphism into a medical truth over and above intersex diversities, that truth was pinned onto genitals. as markers of sexual identity, genitals also became the key to gender identity and the citizenship roles attached to it, hence to adequate sexual and gender aptitudes, attitudes and behaviours (kessler 1998: 52 ff.), to a person’s identity writ large. sex, gender and sexuality were turned into an inseparable triad (dreger 1998: 88-91; 110 ff.). every departure from what were considered appropriate (social and sexual) aptitudes, attitudes and behaviour became a sign of apparent hermaphroditism; every case of apparent hermaphroditism became a pathological, clinical case (ibidem). obsession with genitalia as markers of citizenship gave rise to an obsession with their external appearance. ideal models of genitals were defined, in dimorphic terms, to the detriment of real ones -of the real people who do not meet ideal standards. every deviation from those models became a pathology in need of “normalisation”, as did every genital ambiguity. the result has been sex assignment surgery on babies born with intersex features or merely ambiguous genitals. this particularly affects the penis as marker of the model citizen. in order to fulfil a (male) citizen role in a dichotomous world, an adequate penis is required. what is required, more precisely, is a penis that looks adequate. standards for an adequate-looking penis are attached strong cultural significance and are consequently more stringent than those attached to female genitalia. not surprisingly, sex-assignment surgery mostly produces females (kessler 1998: 68, 95). this surgery, forerunner of transsexual reassignment surgery, is more appropriately known as intersex genital mutilation (igm) what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 44 and is still widely practiced today. it is overwhelmingly practiced, moreover, not for medical reasons (at any rate not for medical reasons so urgent that any delay, to obtain the person’s consent, is to be considered inadvisable), but for reasons related to cultural (gender) normalisation, often related to aesthetic ambiguity. this needs to be “‘corrected’, not because it is threatening to the infant’s life but because it is threatening to the infant’s culture” (kessler 1998: 32; see also fausto-sterling 2000 [2020]: 83 ff.); it is gender, not health, that demands surgery. the new century has brought along with it a surge of objections to igm: because it is practiced on new-borns and minors and is as such non-consensual; because it is invasive and irreversible; because it is all of that as well as medically unnecessary. there is also concern about its long-term consequences, both physical and psychological, mostly as it affects a person’s capacity for sexual intercourse and pleasure. beyond isolated individual testimonies, however, there is little information available about this, as social stigma makes follow-ups and systematic surveys difficult to conduct (kessler 1998: 52 ff.). in light of all this, igm has been condemned in europe by the german ethics council (2012),4 the swiss national ethics commission for human medicine (2012)5 and the austrian bioethics commission (2017).6 they all concluded igm is a serious violation of physical integrity and recommend that, other than in cases of medical emergency, it not be practiced on non-consenting minors. the same line has been followed by the parliamentary assembly of the council of europe, in its resolution 2191 (2017), promoting the human rights of and eliminating discrimination against intersex people,7 and by the european parliament, in its resolution of 14 february 2019 (2018/2878(rsp)), on the rights of intersex people.8 some european countries have banned igm, notably malta,9 portugal10 and germany,11 albeit not always as effectively as would be desirable.12 in most, however, it still constitutes normal practice (ghattas 2020: 11). 4. intersexuality. opinion. available at: https://www.ethikrat.org/fileadmin/publikationen/stellungnahmen/ deutsch/der_stnintersex_deu_online.pdf. [accessed: 11 november 2021]. 5. on the management of differences of sex development. ethical issues relating to "intersexuality". opinion no. 20/2012. available at: http://www.nek-cne.ch/fileadmin/nek-cne-dateien/themen/stellungnahmen/en/ nek_intersexualitaet_en.pdf. [accessed: 11 november 2021]. 6. intersexuality and transidentity. opinion of the bioethics commission. available at: https://www. bundeskanzleramt.gv.at/en/topics/bioethics-commission/publications-bioethics.html. [accessed: 11 november 2021]. 7. available at: http://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=24232. [accessed: 30 november 2021]. 8. https://www.europarl.europa.eu/doceo/document/ta-8-2019-0128_en.html. [accessed: 30 november 2021]. 9. gender identity, gender expression and sex characteristics act, de 14 de abril de 2015 (artículo 14). available at: https://legislation.mt/eli/cap/540/eng/pdf. [accessed: 9 november 2021]. 10. lei n.º 38/2018, de 7 de agosto: direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (artículo 5). available at: https://dre.pt/ pesquisa/-/search/115933863/details/maximized. [accessed: 9 november 2021]. 11. gesetz zum schutz von kindern mit varianten der geschlechtsentwicklung, 25 march 2021. available at: https:// www.bgbl.de/xaver/bgbl/start.xav?startbk=bundesanzeiger_bgbl&start=//*%5b@attr_id=%27bgbl121s1082. pdf%27%5d#__bgbl__%2f%2f*%5b%40attr_id%3d%27bgbl121s1082.pdf%27%5d__1631208130560. [accessed: 9 november 2021]. 12. https://stopigm.org/. [accessed: 9 november 2021]. https://www.ethikrat.org/fileadmin/publikationen/stellungnahmen/deutsch/der_stnintersex_deu_online.pdf https://www.ethikrat.org/fileadmin/publikationen/stellungnahmen/deutsch/der_stnintersex_deu_online.pdf http://www.nek-cne.ch/fileadmin/nek-cne-dateien/themen/stellungnahmen/en/nek_intersexualitaet_en.pdf http://www.nek-cne.ch/fileadmin/nek-cne-dateien/themen/stellungnahmen/en/nek_intersexualitaet_en.pdf https://www.bundeskanzleramt.gv.at/en/topics/bioethics-commission/publications-bioethics.html https://www.bundeskanzleramt.gv.at/en/topics/bioethics-commission/publications-bioethics.html http://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=24232 https://www.europarl.europa.eu/doceo/document/ta-8-2019-0128_en.html https://legislation.mt/eli/cap/540/eng/pdf https://dre.pt/pesquisa/-/search/115933863/details/maximized https://dre.pt/pesquisa/-/search/115933863/details/maximized https://www.bgbl.de/xaver/bgbl/start.xav?startbk=bundesanzeiger_bgbl&start=//*%5b@attr_id=%27bgbl121s1082.pdf%27%5d#__bgbl__%2f%2f*%5b%40attr_id%3d%27bgbl121s1082.pdf%27%5d__1631208130560 https://www.bgbl.de/xaver/bgbl/start.xav?startbk=bundesanzeiger_bgbl&start=//*%5b@attr_id=%27bgbl121s1082.pdf%27%5d#__bgbl__%2f%2f*%5b%40attr_id%3d%27bgbl121s1082.pdf%27%5d__1631208130560 https://www.bgbl.de/xaver/bgbl/start.xav?startbk=bundesanzeiger_bgbl&start=//*%5b@attr_id=%27bgbl121s1082.pdf%27%5d#__bgbl__%2f%2f*%5b%40attr_id%3d%27bgbl121s1082.pdf%27%5d__1631208130560 https://stopigm.org blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 45 igm confronts us like no other phenomenon with politics’ controversial relationship with nature. “because nature is governed by laws independent of us, all that falls under its domain is unamendable. a naturalistic view of the social order seems, eo ipso, to legitimate a given status quo” (salvatore 2019: 8). indeed, in the tension between nature and culture, nature (biology, sex) is conventionally regarded as the immutable marker of immutable truths, and is accordingly expected to have the upper hand over culture (gender). yet as igm makes clear, it is gender that rules over sex. it is biology (genitals) that must surrender to culture and its binary construction of gender and be operated upon in order to meet its requirements. “if culture demands gender, physicians will produce it and of course when physicians produce it the fact that gender is ‘demanded’ will be hidden from everyone” (kessler 1998: 75). western modern culture indeed demands gender. it demands it so that western modern citizenship can be constructed upon it. to this end, biology is first subjected to cultural assumptions about bodies and then used as a rhetorical shroud to disguise those very assumptions, a display of “body politics” at its highest (foucault 1976 [1981ed]: 140-144). far from being the holder of ultimate truths, however, “biology is no closer to the truth, in any absolute sense, than a deity” (kessler & mckenna 1978, p. 162).13 what is immutable is not biology, but culture’s dogmas, its “incorregible propositions” (kessler & mckenna 1978: 4), claims to truth that become a matter of faith in their own unquestionable basic assumptions. thus, “although it seems as if biological facts have an existence independent of gender labels […] the process is actually the reverse” (kessler & mckenna 1978: 75; see also devor 1989: 146 ff.). it is gender labels that condition biological attitudes to gender assignments. “sexes are attributed on the basis of gender attributions” (devor 1989: 146), in new-borns as in grown-ups. in the latter, “[g]ender roles, rather than being the results of biological imperatives, actually function as cues to sex and gender” (devor 1989: 146); in the former, gender conditions our medical approach to intersexuality, even its very existence as a medical concept. this is why some scholars speak, not of sex-gender, but of the “gender-sex system” (laqueur 1990; faustosterling 2000 [2020]). and this is why the binary construction of gender that sustains modern states has succeeded in obliterating biological realities that do not fit within it, condemning intersex bodies to inexistence. should there be a biological truth, this would point, not to dichotomies, but towards continuity. as has been noted, “scientists find fewer biological, psychological and social dichotomies and more biological, psychological and social continua”. yet most scientists remain faithful to sexual dimorphism (kessler & mckenna 1978: 164, 163). forsaking it would necessarily take us beyond the gender binary. sure, (biological) intersex and (cultural) non-binary gender identities need not go hand in hand, and they often do not. yet opening biology (sex) to the former does appear to go hand in hand with opening culture (gender) to the latter (preciado 2020). turning now to non-binary identities, note that not all sex-gender (or gender-sex) systems are binary, and not all binary systems are as dichotomous as the one in place in the modern west (kessler & mckenna 1978: 21 ff.). nor is every sex-gender (or gender13. on the subordination of science to culture, see lewontin 1993. what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 46 sex) system based on “heteroassignment” (rubio marín & osella 2020). some western legal systems are currently moving away from the binary and towards gender selfdetermination. whether by legislation or by judicial decision, an increasing number of them now acknowledge non-binary gender identities and their right to express themselves in official documents.14 in europe, the abovementioned reports on intersexuality, elaborated by the german ethics council, the swiss national commission of ethics for human medicine and the austrian bioethics commission, all recommended that a person whose sexual identity cannot be unambiguously determined in binary terms be offered a non-binary sex-gender option. so did the parliamentary assembly of the council of europe and the european parliament in their abovementioned resolutions on the matter (2017 and 2019, respectively), both of which pointed to self-determination in the context of gender identities. germany followed the recommendation of its ethics council in 2013. malta (2015), austria (2018), the netherlands (2018) and portugal (2018) have adopted similar provisions. the fact that this is happening in some countries within the european union has legal relevance for all others. people who have had their non-binary identity recognised in one member states have the right to have this identity respected in all others, whether or not they recognise non-binary identities domestically. this is so on account of eu citizens’ right of free movement of citizens within the european union (article 21 treaty on the functioning of the eu; article 45 charter on fundamental rights of the eu; eu directive 2004/38/ec). as the court of justice of the european union ruled in 2018, the exercise of this right cannot come at the cost of one’s personal status. established in the context of same-sex marriage with regards to the recognition of one’s marital status (decision of 5 june 2018, affair c-673/16 -coman & others) and, more recently, parenthood (decision of 14 december 2021, grand chamber, affair c-490/20 -stolichna obshtina, rayon «pancharevo»), this doctrine must be considered all the more applicable to one’s gender identity, on account of the even more central role it plays in the definition of one’s status as a citizen. spain is as bound by it as is every other member states. as we will see, however, it has not yet joined other eu countries in the recognition of non-binary identities. 4. gender self-determination in spain. constitutional grounds and legal hurdles 4.1. current state of affairs the spanish legal system is firmly rooted in the gender binary. this is so despite the constitutional ban on discrimination. the spanish constitution (ce) does not 14. it is the case of australia (2003), pakistan (2009), india (2009), new zealand (2012), bangladesh (2013), kenia (2014), nepal (2015), chile (2017), canada (2017), argentina (2018), uruguay (2018), iceland (2019), as well as some states within the u.s.a., as new york, california, ohio, new mexico, nevada, oregon, utah, washington, new jersey, colorado. see human rights watch data, available at https://www. hrw.org/news/2020/09/08/transgender-third-gender-no-gender-part-i. [accessed: 10 november 2021]. https://www.hrw.org/news/2020/09/08/transgender-third-gender-no-gender-part-i https://www.hrw.org/news/2020/09/08/transgender-third-gender-no-gender-part-i blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 47 explicitly ban discrimination on the grounds of sex-gender identity. article 14 refers to sex (to sex-gender) as a forbidden ground for discrimination, but according to the constitutional court the aim of this ban is to put an end to the “differences that historically have placed [women] in a position of legal and social inferiority” with respect to men (decision of the constitutional court -stc15241/1988, 26 october, fj 6;16 see also stc 26/2011, 14 march). as a forbidden ground for discrimination, “sex” (sex-gender) has not been interpreted to include gender identities, whether binary or not. article 14’s list of forbidden grounds for discrimination is however open-ended and the constitutional court has included both sexual orientation (stc 41/2006, 13 february) and sex-gender identity (stc 176/2008, 3 august) within that list. under the spanish constitution, discrimination on the grounds of sex-gender identity, whether binary or not, is therefore forbidden. the protection of autonomy could come to support the claims of non-normative sexgender identities. despite its democratic importance, however, autonomy is not recognised as a fundamental right in the spanish constitution. it is not even mentioned as part of the “highest values” of the spanish legal order, which are rather “liberty, justice, equality and political pluralism” (article 1.1 ce). nor is it mentioned amongst the foundational principles of spanish political order and social peace, which include respect for human dignity and the free development of the personality (article 10.1 ce). in the battle for the recognition of non-normative gender identities in spain, claims to personal autonomy or self-normativity help to frame the question as a matter of democratic citizenship, yet they bear little, if any, constitutional weight. dignity and the free development of the personality can come to the rescue. after all, despite the philosophical differences between freedom (absence of bonds) and autonomy (self-rule in the midst of our complex network of diverse, overlapping, often contradictory bonds rodríguez ruiz 2019: 125 ff.), both are often used as interchangeable terms in political theory (rodríguez ruiz 2019: 128-129). and, after all, democratic dignity can hardly refer to anything other than respect for one’s capacity for self-rule (one’s autonomy), a reading supported by the spanish constitutional court (see for all stc 236/2007). once again, the hurdle is that dignity and the free development of the personality are not constitutionally recognised as self-standing rights, but more loosely as principles (article 10.1). as such they sustain the recognition of non-normative gender identities. yet they do not stand as grounds for individual claims to have such recognition granted, unless they are read in conjunction with some fundamental right. the right not to suffer discrimination (article 14 ce) and the right to privacy (article 18.1 ce) stand here as likely candidates. one such claim has reached the constitutional court and won the case before it, as will be explained below. nevertheless, probably because the constitutional basis for a judicial case appears all but straightforward, the struggle for the recognition of non-normative gender identities has mostly been waged in the political arena rather than at court, aimed at instigating legislative reform rather than constitutional acknowledgement. 15. acronym for sentencia del tribunal constitucional. 16. acronym for fundamento jurídico (legal ground). what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 48 in this struggle, the act on gender identity (act 3/2007, 15 march)17 marked an important stepping stone. this act, in force at the time of writing, came to allow legal gender reassignment without previous sex reassignment surgery, let alone sterilisation. since then, having one’s gender identity legally recognised need not come at the cost of physical integrity, a choice the federal constitutional court of germany declared unconstitutional a few years later (bverfge 1, 155, 11 january 2011). to be sure, this choice implied in germany the construction as mutually exclusive of two fundamental rights, the rights to physical integrity and to the free development of the personality, thus posing a blatant constitutional oxymoron; in spain, where the latter is not a constitutional right but a mere principle, the oxymoron is less apparent. nevertheless, ruling out that confrontation stands also here as a matter of constitutional consistency.18 in this sense, the act on gender identity marked an important step forward in the legal recognition of non-normative gender identities. the act is, however, burdened with limitations. first and foremost, it remains rooted in a binary dichotomous logic that only allows for man-to-woman and woman-toman transits. non-binary sex and/or gender identities are left out of its bounds. this places the act at odds with the right not to suffer discrimination on the grounds of sex-gender identity, as well as out of pace with international and european developments in the field. a second set of limitations concern its beneficiaries, which the act restricts to spanish nationals above the legal age (article 1). based on this, foreign residents cannot claim to have the documents issued them by spanish authorities (residence cards, healthcare cards) adjusted to their gender identity. this is so despite the fact that, with a few exceptions explicitly noted in the constitution (stc 107/1984, 23 november), nationality plays no role in defining who is a fundamental right’s holder. at the most, it can come to qualify the terms in which some fundamental rights are regulated, notably rights not directly related to human dignity, and only in as far as their essential content, their core defining features, are not compromised (sstc 115/1987, 7 july; 236/2007, 7 november). this points to the act on gender identity as discriminatory on the grounds of both sexgender identity and nationality. the same can be said regarding age. in its stc 99/2019, of 18 july, the constitutional court knew of the claim raised by an under-aged trans boy to have his gender identity legally acknowledged, based on his fundamental right to privacy.19 when the spanish supreme court had to decide on the case, it acknowledged that the source of the problem lay in the act on gender identity itself and raised a question concerning its constitutionality (cuestión de inconstitucionalidad) before the constitutional court. to address it, the constitutional court relied on the notion of autonomy (on the “autonomous determination 17. ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención relativa al sexo de las personas. 18. the european court of human rights followed the line of reasoning earlier developed by the german federal constitutional court in the case of ap, garçon and nicot v france (decision of 6 april 2017), in reference to sterilisation surgery or treatment. 19. claims of violation of the fundamental right to physical and moral integrity (article 15), including right to health (article 43), were discarded by the court (fj 4c). blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 49 of one’s own identity”), as connected to the principles of the free development of the personality and the respect due to human dignity (article 10.1 ce), the latter being “the ultimate justification of the existence of a constitutional state like the one established by the 1978 constitution” (fj 4a). from here the court went on to rely on the right to privacy: not having access to legal gender reassignment, it argued, exposes a person’s “condition of being a transsexual to public scrutiny each time he/she has to identify himself” or herself, gender identity being “one of those particularly relevant circumstances that the person has the right to prevent others from knowing” (fj 4b). thus connected with basic constitutional principles and with the right to privacy, one’s gender identity was to all effects and purposes recognised as a fundamental right. any restrictions to its exercise must consequently be justified as pursuing a legitimate constitutional aim. if coming from public power, they need to be further justified on the basis of a proportionality test, as being adequate, necessary and proportionate, in a narrow sense, to the aim in question. the court concluded that here no such justification existed. while the act aimed at protecting minors from premature decisions, a legitimate constitutional aim (article 39.3 and 39.4 ce), in as far as their exclusion was unconditional, without due regard to individual circumstances, it was unnecessary and disproportionate. the act, in particular, did not take account of minors’ maturity and the steadiness of their state of transsexuality. it was in thus far declared unconstitutional (fj 8-9). at the time of writing, the act on gender identity has not yet been amended, on this or on any other point. until it is, it must be read and applied in accordance with this constitutional ruling. this means that every minor’s application for recognition of their trans gender identity must be considered individually in its own merits, based on the applicant’s maturity and the stability of their gender identity. it further means that foreign residents, regardless of their residence status, must be acknowledged as holders of the right to the gender identity, based on its connections with the right to privacy and human dignity (stc 107/1984, 23 november, fj 3).20 over and above it all, this act must be read and applied in accordance with autonomy as a constitutional principle. this last reflection takes us to a third set of limitations contained in the act on gender identity. the act pathologizes trans identities. far from connecting their legal recognition to autonomy, it makes it dependent on a diagnosis of gender dysphoria, as certified by a medical or clinical psychological report, which must attest to the “stability and persistence” of said “dysphoria” (article 4). the act also relies on medicalization, as it requires that medical treatment be followed for at least two years prior to the recognition of a person’s trans identity, with a view to accommodating their physical features to those of the gender they identify themselves with, unless this is unadvised by age and/ 20. “the constitutional court has established the “complete equality among spaniards and foreigners […] with respect to rights that belong to the person as such […], [rights] that are indispensable to guarantee human dignity, which according to article 10.1 of our constitution constitutes a foundational principle of spanish political order. rights such as the right to life, to physical and moral integrity, to privacy, to ideological freedom, etc, belong to foreigners by constitutional command and it is not possible to grant them a different treatment with respect to spaniards” in their context (emphasis added). what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 50 or certified health reasons (article 4). gender identity is thus made dependent on binary sex markers (salazar 2015, p. 88). as reassignment medicalization replaces reassignment surgery, the conflict between free development of the personality and physical and also moral (psychological) integrity persists. bringing the pathologization and medicalization of non-normative gender identities to an end is an old trans demand, one that is being increasingly addressed by law and medical conventions alike. in 2018, the world health organisation decided to strike gender identity disorders out of the list of mental illnesses. some years earlier, the resolution 2048 (2015) of the parliamentary assembly of the council of europe had recommended the abolition of mental health diagnoses and medical treatments as preconditions for the legal recognition of (non-normative) gender identities, in favour of self-determination. such diagnoses are currently no longer requested in belgium, denmark, france, greece, iceland, ireland, luxembourg, malta, norway or portugal.21 the european court of human rights (ecthr), on the other hand, still places pathologization and medicalization of sex-gender reassignment within the margin of appreciation of member states, on the grounds that there is not yet enough consensus among them on this matter (a.p., garçon y nicot v. francia, 6 april 2017). it has however acknowledged that an increasing number of member states are turning away from these requirements and has pointed towards selfdetermination (x & y v. romania, 19 january 2021). these features (its binary roots, the exclusion of minors and foreign residents as beneficiaries, the pathologization of trans identities) set the spanish act on gender identity out of pace with both constitutional requirements and social demands on the matter and speak for the urgent need to provide the right to gender identity with a new legal framework. 4.2. on the brink of change? despite the convergence of social and constitutional demands on this matter, amending the act on gender identity is proving controversial. several bills drafted to this effect have stirred up heated debates. controversy has reached the ranks of the spanish workers’ socialist party (partido socialista obrero español -psoe) and the central government coalition of which it is part with left-wing party together we can (unidas podemos -up).22 controversy is particularly strong among feminists: while broad sectors of feminism endorse gender self-determination as consistent with feminist claims, some cast suspicions on the effects it might have on cis-women. affirming one’s autonomy in the field of gender identity beyond medical or social control, some fear, might lead 21. https://tgeu.org/trans-rights-map-2021/. [accessed: 21 november 2021]. 22. polemics have revolved around three draft bills, one proposed by the socialist (psoe) parliamentary group in congress (proposición de ley integral para la igualdad de trato y la no discriminación, 21 january 2021) and two proposed by the ministry of equality (run by unidas podemos): one on trans rights (borrador de ley para la igualdad real y efectiva de las personas trans, 2 february 2021) and one on lgtbi rights (borrador anteproyecto de ley para la igualdad de las personas lgtbi y para la no discriminación por razón de orientación sexual, identidad de género, expresión de género o características sexuales, 2 february 2021). https://tgeu.org/trans-rights-map-2021 blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 51 to frivolous or even fraudulent gender transitions that could blur the notion of ‘woman’ as a legal category. this could in turn put at risk the effectiveness of norms and policies introduced to eradicate women’s structural discrimination with respect to men; it could also threaten women’s safety, by allowing ‘men’ to occupy traditionally safe spaces and events, such as women-only toilets, gym sessions, sport teams, and the like; becoming a woman, it is alleged, could even allow men to escape conviction for gender violence (in spain defined as violence wielded by a man onto a woman currently or formerly his partner).23 some feminists fear, in brief, that enough men might be attracted to the perks of being a woman to transit into one and pose a threat to ‘real’ women’s physical safety and legal position. there is much to object to this line of reasoning. to begin with, it implies imposing preventative restrictions to a fundamental right in order to avoid its potential abuses. this is an unconstitutional approach to rights: their restrictions cannot be justified in the abstract (see for all stc 57/1994, 28 february) and their abuses must be addressed only if and when they actually occur; it is also one that feminists rightly criticise when put forward in other contexts (notably in relation to the legal means available to combat gender violence). similarly, alleging that gender reassignment could be used to circumvent previous legal responsibilities suggests that it could come to alter a person’s legal personality, against articles 29, 30 and 32 of spanish civil code, which link its creation and extinction to a person’s birth and death, respectively.24 in addition, this line of reasoning offers an alluring view of women’s social and legal situation that is far removed from reality, and that is all the more surprising as it comes from feminists who decry women’s structural disempowerment with respect to men in all relevant fields. it ignores, moreover, female to male transits, allegedly also open to strategic decisions, indeed ignoring that being legally a man is the more attractive option. above all, the reasoning banalizes the high cost attached to exercising the right to gender identity in non-normative terms. meanwhile, fourteen of spain’s seventeen autonomous communities (regions) have passed their own regional acts, thirteen of which based, more or less explicitly, on self-determination (salazar 2015; see laura flores in this issue). recently, the parties in the central government coalition have reached an agreement and jointly passed a draft bill on real and effective equality of trans people and guarantee of lgtbi rights.25 the draft bill aims to become the new act on gender identity. to this end, it covers lgtbi rights in the fields of civil service, labour market, health care, education, media, culture, entertainment and sports, as well as foreign relations and international protection. it also regulates administrative registration and gender legal reassignment in terms that try 23. ley orgánica 1/2004, de 28 de diciembre, de medidas de protección integral contra la violencia de género (article 1). 24. article 29: “birth determines legal personality...” (“el nacimiento determina la personalidad”). article 32: “legal personality is extinguished with the person’s death” (“la personalidad civil se extingue por la muerte de las personas”). i am grateful to marina echevarría sáez for this insight. 25. anteproyecto de ley para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas lgtbi. available at: https://www.igualdad.gob.es/servicios/participacion/audienciapublica/ documents/apl%20igualdad%20trans%20+lgtbi%20v4.pdf. [accessed: 21 november 2021]. https://www.igualdad.gob.es/servicios/participacion/audienciapublica/documents/apl%20igualdad%20trans%20+lgtbi%20v4.pdf https://www.igualdad.gob.es/servicios/participacion/audienciapublica/documents/apl%20igualdad%20trans%20+lgtbi%20v4.pdf what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 52 to minimise the controversy surrounding it. the draft bill thus states that gender or name reassignment will not alter previously existing rights and duties, with explicit reference to violence against women (article 40.4). it also precludes that gender reassignment can affect a person’s legal position as related to their biological sex, or that it can have retroactive effect (whether favourable or unfavourable) upon the enjoyment of affirmative action measures (article 40.3). more importantly, the draft bill attempts to adjust the process of legal gender reassignment to the stc 99/2019 ruling. to this end, the age requirement is amended. access to legal gender reassignment is granted to people above the age of sixteen (article 37.1), while minors above the age of fourteen can apply for it with the assistance of their legal representatives; should there be any disagreement between these and/or with the applicant minor, a judicial defender (article 300 of the spanish civil code) will be nominated to settle the matter (article 37.2); judicial assistance is required for minors between twelve and fourteen years of age (final clause 7); all of this with a view to protecting the minor’s best interests (article 38.4). whether or not procedures for legal gender reassignment have been initiated, moreover, minors can have their name legally changed to match their gender identity (article 42). the draft bill thus places self-determination and the protection of minors’ best interests at the heart of the age requirement. self-determination indeed stands as the touchstone of the government’s draft bill, though perhaps less emphatically than would be desirable. in accordance with it, legal reassignment processes are detached from diagnoses or reassignment medical treatments such as the ones currently in force (article 37.4). it remains to be seen how the draft bill will fare, on this and other issues, in its passage through parliament. it also remains to be hoped that controversy around selfdetermination will not hide from view some of its flaws. first, the scope of its normative force is limited. the draft bill resorts to programmatic language rather than binding provisions in areas as relevant as labour law. it also leaves relevant questions unaddressed, such as the situation of trans people in prison,26 or their access to abortion and assisted reproduction. the latter is only mentioned in the context of the intersex (article 18.3). this means that trans people could have problems accessing assisted reproduction that is consistent with their biology. it also means that, if pregnant, trans men could be denied legal access to abortion, as legislation explicitly recognises this right to women only (organic act 2/2010).27 second, the draft bill’s approach to the nationality requirement is problematic. although addressed to every person on spanish soil, and although everyone can benefit from the policies it articulates (article 2), access to legal gender reassignment is only open to spanish nationals, stateless people and non-legal residents who certify that they cannot 26. this was contemplated in the ministry of equality’s previous draft bills on lgtbi rights (borrador anteproyecto de ley para la igualdad de las personas lgtbi y para la no discriminación por razón de orientación sexual, identidad de género, expresión de género o características sexuales, 2 february 2021, article 52). it was also contemplated, more incisively, in its draft bill on trans people’s rights (borrador de ley para la igualdad real y efectiva de las personas trans, 2 february 2021, articles 37-38). 27. ley orgánica 2/2010, 3 de marzo, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo. blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 53 access it in their country of origin (article 44). legal residents in the same situation are, by contrast, not allowed to apply for their residency documents to be adjusted to their gender identity. this, as has been explained, amounts to a violation of the right to privacy as interpreted by the constitutional court. it also runs counter recent case-law of the ecthr granting access to gender reassignment to a foreign resident lawfully settled in a member state (decision 16 july 2020, affair rana vs. hungary). third, the act remains rooted in a binary logic. this is clear in the scant attention it pays to the intersex. beyond their inclusion within some general rights and principles (autonomy, integral assistance, informed consent, co-decision, non-discrimination, honour, privacy, self-image, confidentiality), and beyond a general reference in the field of education (article 23), their specific situation is only contemplated in article 18 (health care, including assisted reproduction) and in article 71 (particularly vulnerable people). article 18.2 bans igm, yet only if practised upon new-born babies, unless otherwise advised for health reasons (article 18.2). not only is this not a general ban on unconsented igm; it also begs the question of how long the new-born status can be deemed to last. it is tempting to find the answer in article 71.2, which allows parents of intersex newborns not to register their sex, yet only by mutual agreement and only during the year following birth, after which time registration becomes compulsory and a requirement for obtaining any id documents (article 71.2). it is indeed tempting to take this one-year limit as also applicable to the ban on igm surgery, particularly since legal registration remains available only in binary terms, as we shall now see. the one-year moratorium thus seems to stand as a reflection period for parents, who must then opt for a binary identity, possibly accompanied by igm of the baby, by then arguably no longer a new-born. as just said, the draft bill does not contemplate non-binary gender identities, either by original assignment, in connection with intersexuality, or by ensuing reassignment.28 this leaves unaltered the regulation of the civil registry,29 dating back to 1958 and still in force, which rules that new-borns have to be registered as either male or female (article 170) and refers doubtful cases to medical assessment (article 313). far from ensuring “that a wide range of [gender] options are available for all people, including [...] intersex people who do not identify as male or female”, as recommended by the parliamentary assembly of the council of europe (resolution 2191(2017), recommendation 7.3.3), the current draft bill abandons every effort in this direction. meanwhile, increasingly more countries are offering non-binary sex-gender identity options. of particular interest here is the german case (theilen 2020). in 2013, following the recommendation of the national ethics committee, germany passed an act that allowed for the sex-gender entry at the civil registry to be left blank.30 in 2017, the federal constitutional court declared the act to be in violation of the fundamental rights to the free development 28. interestingly, a previous draft bill on trans people’s right, elaborated by the ministry of equality, allowed for gender identity (sex) not to be specified in official documents: borrador de ley para la igualdad real y efectiva de las personas trans (2 february 2021), article 13.2. 29. decreto de 14 de noviembre de 1958 por el que se aprueba el reglamento de la ley del registro civil. 30. gesetz zur änderung personenrechtlicher vorschriften (personenstandsrechts-änderungsgeset) (7 may 2013). what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 54 of the personality and not to suffer discrimination (articles 2.1 and 3.3 of the basic law, respectively), as it did not allow non-binary identities to be recognised and expressed in positive terms, but just negatively, through the refusal to adhere to existing binary legal options.31 in 2018 legislation was amended to accommodate this decision. since then, the identity “diverse” is open in germany to the intersex.32 by contrast, unless it is amended in its binary constraints, the new spanish legal framework on gender identity will be born obsolete. we must wonder at this point whether, in and of itself, adding a third option within an essentially binary system will help to subvert it or will rather come to confirm it as the norm, while pointing to those who deviate from it. suffice it to think that, all too often, non-binary identities do not even find linguistic accommodation in, mostly, binary gendered languages. this can particularly burden intersex people marked as non-binary as babies, hence not as a result of their own choice. not surprisingly, the report of the third intersex forum (held in malta in 2013) recommended, along with the rejection of igm, “that intersex children be registered as females or males with the awareness that, like all people, they may grow up to identify as the different sex or gender” (cited in cossutta 2019: 55). the conclusion to be drawn from this is not that non-binary sex-gender options are redundant; it is rather that the subversion of the sex-gender binary requires, along with non-binary options, a flexibilization of gender classifications. furthermore, the recommendation raises the question whether, and if so to what extent, sex-gender identities should be exposed in official documents. this question reveals (last but not least) a fourth flaw of the current draft bill: the bill expects us to continue to expose our gender identity in official documents. this is such a common occurrence that we appear to take it for granted. yet it is undoubtedly an intrusion into the rights to privacy and data protection (articles 18.1 and 18.4 ce). as such, though not necessarily unconstitutional, it requires justification. for every document where we are required to expose our gender identity, this must be justified as a proportionate means (i.e., one that is adequate, necessary and proportionate in the narrow sense) to the pursuit of a constitutional aim. no such justification is currently provided in spain. the decree 1553/2005, 23 december, that regulates the spanish id,33 merely states (article 11) that, along with their name, surnames, date of birth, nationality, id number, signature and photograph, every id must state its holder’s sex (gender), to be registered in binary terms. no justification is given as to why. it is as if displaying information on a person’s gender identity had no bearing on any fundamental right. yet it does. this is acknowledged in the recommendations included in the yogyakarta principles plus 10 (2017).34 according to principle 31, states shall 31. bverfge 10 october 2017. 32. gesetz zur änderung der in das geburtenregister einzutragenden angaben (13 december 2018). not intersex non-binary persons, however, are not included in the act (theilen 2020). 33. real decreto 1553/2005, de 23 de diciembre, por el que se regula la expedición del documento nacional de identidad y sus certificados de firma electrónica. 34. additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the yogyakarta principles (10 november 2017). available at: http://yogyakartaprinciples.org/wp-content/ uploads/2017/11/a5_yogyakartaweb-2.pdf. [accessed: 30 november 2021]. http://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_yogyakartaweb-2.pdf http://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_yogyakartaweb-2.pdf blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 55 “a. ensure that official identity documents only include personal information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality” “c. while sex or gender continues to be registered: i. ensure a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity; ii. make available a multiplicity of gender marker options […]” certainly, the yogyakarta principles are not part of an international treaty, but mere non-binding guidelines for states. the spanish organic act 4/2015, on the protection of citizens’ security, however, is binding and points in the same direction.35 after reminding us that ids must of course respect the right to privacy, it underlines that they cannot include information related to race, ethnicity, beliefs, opinion, ideology, disability, political affiliation, sexual orientation, or sexual (gender) identity (article 8.2). despite this ban, however, gender identity continues to be shown in spanish ids, as per an older and lower norm, the decree 1553/2005 referred to above. the only way to account for this gross breach of the rule of law is to admit that, as used in the organic act 4/2015, the expression “sexual [gender] identity”, is taken to refer to non-normative gender identities only. it is as if normative binary identities were so naturalised that they are not even regarded as “identities” and their exposure is regarded as harmless. in this reading, what the organic act 4/2015 would be banning would be the exposure of non-normative sex-gender identities, not of those that conform to the sex-gender binary. this reading seems to be confirmed by article 83 of the act on the civil registry. after requiring a person’s sex to be registered (article 44), the act grants unrestricted access to this information, while granting special protection to information on sex change (article 83). the fact that we all have a sex-gender identity; that this information is covered by our right to privacy; that as such it needs protection from unjustified exposure; that it needs protection regardless of what a person’s specific identity actually happens to be; all these considerations are lost from sight in this reading. so is the fact that non-normative sex-gender identities must not only be protected from unjustified exposure, but also from the erasure that comes from the obligation to pass as binary. the spanish draft bill currently under consideration makes no attempt to rectify this. 35. ley orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana. what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 56 5. final reflections “[t]he law, which constantly reproduces the binary system even when adding a third exception, is based on a lie, on the idea that there are only two sexes, naturally and clearly divided” (cossutta 2019: 57 –emphasis in the original). an inclusive democratic citizenship requires us to rescue non-normative sex-gender identities from the silence this lie has imposed on them. inclusion begins with listening. we need to listen to what alice d. dreger has called “wounded storytellers” (dreger 1998: 169), to the stories told by people the sex-gender binary has wounded, physically and as part of the citizenry. we need to listen to them and we need to listen with them, in the knowledge that their stories, like all stories, are not isolated occurrences, but part of a broader cultural tale. we need to open the public space to post-modern sex-gender narratives in the spirit of communicative inclusion proposed by iris m. young (1996: esp. 131-132), to make sure that our democratic exchanges include as wide a spectrum of voices as possible. with these narratives come post-modern (post-binary) vindications of autonomy, of relational autonomy (rodríguez ruiz 2019: esp. 125 ff.), of our capacity for self-rule within our complex relational networks. thus defined, autonomy must be affirmed in the face of all binary sex-gender strictures (hierarchical, dichotomous) and their unquestionable propositions, the core components of the modern economies of truth and power (foucault 1976 [1981ed]: 135 ff.). doing so is a democratic demand. if we aim to construct a society of individuals with a parity capacity for self-rule (and this is after all what democracy is about), then gender identities cannot stand as a source of power. this means the end of normative and non-normative gender identities and the beginning of new cultural truths, where sex-gender differences are acknowledged to cover a wide spectrum and the very notion of normative gender identities, if still existent, is very much diluted as a marker of power. we can now wonder whether gender identities can exist beyond power dynamics. can there be gender without power? if not, can we (must we) dispense with gender identities altogether? can we ultimately construct cognitive schema without gender identity categories? we may or may not be able to do this. we may, moreover, be advised to do it or not –under the current power dynamics the risk of gender neutrality taking a cis-hetero male profile looms above (cossutta 2019: 58). what we can and must certainly dispense with, however, are gender identities as imposed strictures and social givens. we can and must move instead towards “gender blending” (devor 1989) based on self-determination, towards a loose conception of gender “that includes notions of incoherence, non-linearity and incongruence in one’s personal life and lived experiences” (ammaturo 2019: 42). this entails the “recognition that sex identity, sex attribution, gender identity, gender attribution, and gender roles can all combine in any configuration” (devor 1989: 153), as expressions of individual autonomy, beyond heteroassigned constraints. we can, in brief, embrace sex-gender diversity and flexibility as the key to end sex-gender as a source of power. in this sense, deconstructing the gender binary seems like the final aim of feminism (platero 2016). whether doing so will bring along the erasure, or the dwindling, of gender identities as a source of social understanding and meaning remains to be seen. blanca rodríguez-ruiz the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 57 references agha, petr (2019), “subjectivity, gender and agency”, in p. agha (ed.), law, politica and gender, routledge, oxford, pp. 61-80. https://doi.org/10.4324/9781351047005-6 ammaturo, francesca r. (2019), “can human rights exist without gender? lgbtqi issues and the council of europe”, in peter agha (ed.), law, politica and gender, routledge, oxford, pp. 33-44. https://doi.org/10.4324/9781351047005-4 butler, judith (1990), gender troubles. feminism and the subversion of identity, routledge, london & new york. butler, judith (1993), bodies that matter. on the discursive limits of sex, routledge, london & new york. cossutta, carlotta (2019), “linguistic traps: identity and differences through institutions”, in peter agha (ed.), law, politica and gender, routledge, oxford, pp. 45-60. https://doi.org/10.4324/9781351047005-5 devor, holly (1989), gender blending. confronting the limits of duality, indiana university press, bloomington and indianapolis. dose, ralf (2014), magnus hirschfeld: the origins of the gay liberation movement, monthly review press, new york. dreger, alice d. (1998), hermaphrodites and the medical invention of sex, harvard university press, cambridge, ma. fausto-sterling, anne (2000 [2020ed.]), sexing the body. gender politics and the construction of sexuality, basic books, new york foucault, michel (1976 [1981ed]), the will to knowledge. the history of sexuality 1, penguin books, middlesex. foucault, michel (1980), herculine barbin (introduction), new york: vintage books. ghattas, dan c. (2020), protecting intersex people in europe: a toolkit for law and policymakers, ilga europe, brussels. hirschfeld, magnus (1918 [2015ed.]), sexuelle zwischenstufen, fachbuchverlag dresden, dresden, kessler, suzanne (1998), lessons from the intersexed, rutgers, new jersey. kessler, suzanne & mckenna, wendy (1978), gender. an ethnomethodological approach, chicago university press, chicago. king, helen (2016), the one-sex body on trial: the classical and early modern evidence, routledge, london. https://doi.org/10.4324/9781315555027 lacqueur, thomas (1990), making sex. body and gender from the greeks to freud, cambridge university press, cambridge, ma. lewontin, richard c. (1993), biology as ideology. the doctrine of the dna, harper perennial, new york. https://doi.org/10.4324/9781351047005-6 https://doi.org/10.4324/9781351047005-4 https://doi.org/10.4324/9781351047005-5 https://doi.org/10.4324/9781315555027 what is at stake in the recognition of non-normative identities? the age of human rights journal, 18 (june 2022) pp. 39-58 issn: 2340-9592 doi: 10.17561/tahrj.v18.7021 58 pateman, carole (1988), the sexual contract, stanford university press, stanford. pateman, carole (1989), the disorder of women, stanford university press, stanford. platero, lucas (2016), “la transfobia también es una lucha feminista”, viento sur, nº 146, pp. 55-61. preciado, paul b. (2020), yo soy el monstruo que os habla. informe para una academica de psicoanalistas, anagrama, barcelona. rodríguez ruiz, blanca (2019), el discurso del cuidado. propuestas (de)constructivas para un estado paritario, tirant lo blanch, valencia. rubin, gayle (1975), “the traffic in women: notes on the ‘political economy’of sex”, in rayna r. reiter (ed.), toward an anthropology of women, monthly review press, new york, pp. l57-210. rubio marín, ruth & osella, stefano (2020), “el nuevo derecho constitucional a la identidad de género: entre la libertad de elección, el incremento de categorías y la subjetividad y fluidez de sus contenidos. un análisis desde el derecho comparado”, revista española de derecho constitucional, nº 118, pp. 45-75. https://doi. org/10.18042/cepc/redc.118.02 salazar benítez, octavio (2015), “la identidad de género como derecho emergente”, revista de estudios políticos, nº 169, pp. 75-107. https://doi.org/10.18042/cepc/ rep.169.03 salvatore, ingrid (2019), “the politicisation of sexuality: feminism, difference, differences”, in peter agha (ed.), law, politica and gender, routledge, oxford, pp. 8-20. https://doi.org/10.4324/9781351047005-2 theilen, jens t. (2020), “subversion subverted: developments in german civil status law on the recognition of intersex and non-binary persons”, eva brems, pieter cannoot and toon moonen (eds.), protecting trans* rights in the age of gender self-determination, intersentia, cambridge, uk, pp. 95-120. https://doi. org/10.1017/9781839700897.005 young, iris m. (1996), “communication and the other. beyond deliberative democracy”, in seyla benhabib (ed.), democracy and difference. contesting the boundaries of the political, princeton university press, princeton, pp. 120-135. https://doi.org/10.1515/9780691234168-007 wittig, monique (1992), “on the social contract”, in the straight mind and other essays, beacon press, boston, pp. 33-45. received: december, 3rd 2022 accepted: march, 14th 2022 https://doi.org/10.18042/cepc/redc.118.02 https://doi.org/10.18042/cepc/redc.118.02 https://doi.org/10.18042/cepc/rep.169.03 https://doi.org/10.18042/cepc/rep.169.03 https://doi.org/10.4324/9781351047005-2 https://doi.org/10.1017/9781839700897.005 https://doi.org/10.1017/9781839700897.005 https://doi.org/10.1515/9780691234168-007 what is at stake in the recognition of non-normative identities?* abstract 1. introduction 2. feminism and binary boundaries 3. binary dissenters 4. gender self-determination in spain. constitutional grounds and legal hurdles 4.1. current state of affairs 4.2. on the brink of change? 5. final reflections references human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 1 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism galym zhussipbek1 abstract: human rights to health and health care have developed considerably since they were first codified after world war two and now, they are regulated in many international and national legal documents. nevertheless, health rights still face many challenges. they are among the most contested, incompletely conceptualized human rights and the least enforceable rights. this paper argues that the greatest challenges and difficulties in health rights stem from the global expansion of neoliberal capitalism to which positivist epistemology is complacent. these problems entail the relativist challenge to the universality of human dignity and the neglect of fundamental values such as caring, empathy and respect for human dignity. the neoliberal capitalist mindset leads to an erosion of empathy, which translates into hostility towards, or at least neglect of, social human rights. all this contributes to the normalization of narrow understandings of health and the human right to health and to the problematic development of health rights. the commodification of health care led to a paradigm shift in the health sector creating an impersonal, profit-centric relationship. the insufficient role of the world health organization is one of the main reasons for the underdevelopment of health rights. nor can the concept of sustainable development be seen as truly inclusive and conducive to the development of viable health rights, as the problems in the development of universal health coverage show. this paper suggests that the creation of fully-fledged health rights is not a problem of resource scarcity or lack of legal norms — but primarily a problem of scarcity of care and empathy, and a lack of understanding of the universality of human dignity. to make health and health care full-fledged human rights requires, first and foremost, a cultural transformation and mental revival, which would revive care, empathy, and dignity; the development of social rights that are indispensable for the protection of human dignity; and the implementation of a solidaristic perspective with full decommodification of health care. keywords: care, dignity, human right to health, health care, human rights, social rights, neoliberal capitalism, sustainable development. 1. introduction health must not be treated as a luxury. this is a key lesson learnt from the covid-19 pandemic (turk, 2024). another key lesson is that the pandemic became a stark reminder of the divide that exists in countries without universal health care (khoo & lantos, 2020) (following issel (2014), this article uses the term “health care” instead of “healthcare”). the countries with health care systems based on universal access to services and a well-funded and organized approach to public health coped much better with the pandemic (waitzkin, 2021, p. 204). as of 2014, 69% of constitutions worldwide contained health-related guarantees, while the right to health was justiciable in 41% (jung et al., 2014). it is a logical and 1 independent scholar based in almaty; a faculty member at the department of social sciences, sdu university, kaskelen/ almaty, kazakhstan (galym.zhussipbek@gmail.com; asym22@yahoo.com). https://doi.org/10.17561/tahrj.v25.9272 mailto:galym.zhussipbek@gmail.com mailto:asym22@yahoo.com human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 2 should-be result if we consider that human right to health was declared formally in 1946 by the world health organization (who) and subsequently codified by leading international documents in the field of human rights. but for all these formal achievements, there are still extreme inequalities: health care spending per capita for the top 5% of the world population is nearly 4,500 times that of the lowest 20%. (flood & gross, 2014). however, what is more striking is that the right to health is still the most disputable and practically the least enforceable. as noted long before the covid-19 pandemic (tobin, 2012), debates on the conceptual underpinnings of the right to health are still ongoing, and the right to health continues to face many challenges of a legal, political, economic, and cultural nature in today’s world. this paper argues that neoliberal capitalism (which tends to absolutize the logic and mechanisms of the free market and promote the values of egocentric individualism and self-help (amadae, 2016) can be seen as the main reason why the right to health is portrayed as one of the most “subversive human rights” (o’connell, 2010) and as a human right with “shaky” conceptual foundations or “incompletely conceptualized” (tobin, 2012). among other things, the beginning of the global advance of the neoliberal economic paradigm led to the failure of the “health for all” strategy adopted by the 1978 alma-ata declaration (meier, 2010a, p. 47). on the other hand, the role of positivist epistemology in understanding social phenomena (which is distinct from positivism in legal theory) should be considered in any thorough analysis of the insufficient development of health rights. the tendency to downplay the role of emotions (including positive ones such as empathy, which is key to legitimizing the universality of human rights) and to separate reason and emotions, intellect and values, is an epistemological problem of a positivist approach that characterizes the neoliberal capitalist mindset (one of the main themes of this article). (barreto, 2006; sayer, 2017a). it is logical that there is a widespread distrust of empathy among lawyers and legal thinkers. (corso, 2014). sociology, which like other social sciences has been shaped mainly by positivist epistemology, has also long been deficient in defending human rights. turner (1993) criticizes the skepticism of classical sociology towards the universality of human rights, which is rooted in relativism and the influence of “hard-core” positivism. this paper adopted the broad understanding of health inspired by the so-called bio-psycho-social model. as a comprehensive model that views health as a dynamic interaction between biological, psychological, and social factors, this model was developed as an alternative to the conventional bio-medical model and was first formally conceptualized by psychiatrist engel in 1977. however, neoliberal capitalism, being extremely empiricist, promoted bio-medical or bio-statistical understandings of health. since the 1990s neoliberal capitalism as a mode of discourse turned out to be hegemonic by being incorporated into the common-sense way many perceive, live in, and understand the world. though the primary idea was to increase efficiency and quality of human efforts in all sectors, neoliberalism’s market-centric morality led to relativization of human dignity, creation of hierarchies of worth, silent acceptance of human beings as “disposable and expendable”; instrumentalization of human rights, which affected negatively the development of viable health rights. https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 3 also, despite many medical and technological advances, the benefits of health care for many ordinary citizens remain limited due to neoliberal reforms in social and economic policy and the health care system. hence, the delivery of health care was (gaffney, 2017, p. 220) and is still far from perfect, though we as humankind has enough financial, technological resources and good laws. the pandemic has proved that class and racial inequalities, employment, education and housing conditions determine health and that the social determinants of health have implications that go beyond the health care sector (yamin, 2008). in fact, we have a world that allows people to die if they do not have financial means. (khoo & lantos, 2020). overall, the value of moral sympathy is crucial to the development of universal and extraterritorial human rights (turner, 1993). this paper argues that the development of human rights to health and health care depends on the internalization of the values of care, empathy, and universalistic understanding of human dignity, which are accepted and promoted by the naturalistic conception of human rights that is a foundation of all major international human rights documents. the naturalistic conception holds that human rights are first and foremost moral rights that all human beings are entitled to at all times and in all places simply because they are human beings (cruft et al., 2015, 1). overall, the values of care and empathy in the theoretical defense of human rights can be supported by the assumptions of critical realism and the ethics of care, which are discussed below. the covid-19 pandemic has highlighted the dangers of a bio-medical or biostatistical understanding of health that separates health from well-being, social and political factors. furthermore, the pandemic has shown that the sustainable development goals (sdgs) adopted by the united nations (un), such as the achievement of universal health coverage (uhc), do not include a conceptually sound analysis to address issues of social, environmental and relational inclusion that lie behind the multi-layered crisis caused by neoliberal capitalism. thus, the pandemic exposed a number of fundamental crises that were already present in the pre-covid system in the area of sdgs (gupta et al., 2021). the concept of sustainable development cannot be seen as truly inclusive and conducive to the development of health rights when applying the critical analyses of inclusive development scholars. as the covid-19 pandemic posed unprecedented challenges to human rights in global health, the concept of human rights became an essential requirement for the un and who to respond to the health harms of a globalizing world (meier et al., 2023). although the un and who have moved to a more rightsbased approach that recognizes the role of social determinants of health, their efforts are insufficient to develop full-fledged human rights to health and health care. there is extensive research that addresses the negative effects of neoliberal capitalism on health rights. however, as an interdisciplinary and conceptual-normative one, this paper has two central aims: (1) to discuss the right to health in a broad context, applying a non-positivist epistemology and concepts such as care, empathy and dignity that are overlooked in positivist research, and (2) to offer some solutions that focus on systemic change, the development of social rights and a solidarity perspective, and most importantly, cultural change and moral revival. this can be possible by internalizing the primacy of care, concern and dignity in personal and social life. https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 4 2. primacy of care and universality of human dignity conceptually, this paper is based on the fundamental ideas proposed by critical realism that care is what human beings need existentially, that dignity is connected to care (sayer, 2011) and that rights far from being only abstract concepts, are real because they exist on four main areas or planes of social being: bodies in material relations with nature, interpersonal relations, social structures, and inner being (alderson, 2016). to overcome the limitations that positivism entails in many social sciences and to develop universal and extraterritorial human rights, the value of moral sympathy (empathy, one of the main concepts in this article, is commonly associated with sympathy (see e.g. corso, 2014) is crucial. moral sympathy gains a fundamental role in the face of human frailty, precariousness, and the instability of social institutions. (turner, 1993), which critical realism and the ethics of care try to conceptualize and address. the ethics of care, as conceptualized by eva kittay (whose philosophical views on human rights were shaped by her mentally disabled daughter (kittay, 2019; wilson 2020), shares critical realism’s position on the fundamental importance of care and dignity in our lives and that human dignity is intimately connected to care. (kittay, 2011). both theoretical approaches maintain that the foundations of human dignity should be looked for in the relationship humans bear to one another, foremost the relations based on care and deepest sense to be irreplaceable and inherently worthy, but not in attributions and any other factor (kittay 2005, 111; sayer, 2011). in other words, dignity is tied to being treated with moral concern and care (sayer, 2011); the ability to give and receive care is a source of dignity for humans (kittay 2011, 52). in this understanding, the intimate relationship between concern, care, and dignity creates universalistic conceptualization of dignity (kittay, 2011; sayer, 2011) that is distinct from narrow or conditional conceptualizations that focus on being “reasonable” or “capable” or possessing a certain quality beyond merely being human. without universalistic understanding, the concept of human dignity becomes an empty notion. as naturalistic conception maintains human rights are foremost moral rights that exist independently of any judicial decision only because one is a human being (cruft et al., 2015, 1). overall, human dignity is a “moral source” from which human rights ensue (habermas, 2010). the primacy of ontology in critical realism (whereas in positivism and social constructivism, epistemology is primary) (bhaskar & hartwig, 2016) is compatible with the main idea of the naturalistic conception of human rights, which emphasizes the equal dignity of all human beings or the ontological/moral equality of human beings. in other words, critical realism’s belief in ontological realism, especially transcendental realist ontology (bhaskar & hartwig, 2016), helps to understand and practically realize the equal ontological or moral dignity of human beings, the core idea of the universality of human rights. this conviction is important to overcome the relativist challenges in defending the universality of human rights. in other words, the acceptance of some absolute values through the naturalistic conception of human rights and critical realism can help to overcome the challenges brought about by relativism, among others, neoliberal capitalism relativistically challenges the fundamental values and principles. https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 5 as it is mentioned, human rights are validated by reference to the dignity of human beings, which is the value-based foundation of human rights (hunt, 2007, 27; erk, 2011). not reason but empathy is a key to perceive the value of other people’s lives and universality of human dignity fully. however, the concept of empathy played a marginal role in legitimizing universal human dignity, even in human rights studies (hunt, 2007; schultz, 2013). nonetheless, a growing body of research has explored the intersection between emotions, human rights, and issues of justice. specifically, research in the fields of psychology and neuroscience corroborates the role that emotions play in generating, shaping, and regulating the sense of justice and moral reasoning. (loungo, 2021). on the other hand, in its origins, “health system” was established not on claims or rights but on empathy, charity, kindness, and solidarity (erk, 2011). moreover, human beings come to health facilities because ill health makes them feel their worthiness, their dignity; that is the real reason they seek help and assistance (meguid, 2016). functional hospitals were not created by profit-seeking enterprises, but by institutions of religious charity, and the idea of health insurance initially was not a product offered by a profit seeking insurance companies but was invented by the pre-modern guild system based on mutual care (erk, 2011). critical realist scholars argue that preserving so-called academic cool because of positivist epistemology leads to avoiding vulnerability and emotion on any account of social phenomena, so much of social theory and philosophy has a somewhat autistic and masculinist character (sayer, 2017b). also, a positivist tradition in social sciences, which attempts to avoid any engagement with normative debate by focusing only on a causal analysis and descriptive exploration, is unlikely to approach the problems of justice within a framework of human rights discourse (turner, 1993). jonathan wolff (2012), in his analysis of human right to health emphasizes the decades-long tendency of philosophers since 1948, the year when universal declaration of human rights (udhr) was adopted, to view human rights doctrine as a marginal contribution to political philosophy or their tendency to argue about mere “aspirations”. these weak foundations of the positivist human rights philosophy have had a negative effect on the development of human rights to health and health care (a main theme of this article). 3. the broad scopes of health and health care health is by nature a polysemous and dynamic concept (breilh, 2021); the notions of health may differ from culture to culture (porto et al., 2017) and change over time. the world health organization (who) initially defined health in its 1946 constitution as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” (constitution). this definition was truly groundbreaking at its time. this inclusive definition of health implies that health is not a separate concept from wellbeing (breilh, 2021). nonetheless, who’s definition of health was criticized for various reasons (for being idealistic, static, and narrow, etc.). https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 6 as it is a dynamic concept, the notion of health has evolved over the last few decades. in our days, we can speak of various determinants of health such as biological, psychosocial, environmental, socio-economical, health-promoting behavior practices, medical advancement as well as ecological determinants (li, 2017). this paper adopts the so-called broad understanding of health shaped by bio-psycho-social model. this comprehensive model, which views health as a dynamic interaction between biological, psychological, and social factors, was developed as an alternative to the conventional bio-medical model and was first formally conceptualized by psychiatrist engel in 1977. according to the bio-psycho-social model, health is an interconnected system rather than an isolated state. hence, health is a state of well-being that arises from the harmonious interaction of biological and psychological factors, supportive social relationships, and good environmental conditions rather than merely the absence of disease or infirmity (engel, 1977). moreover, it is important to see the intersectionality of inequity and the social determination of health rather than searching for the components that predispose disaffected groups to health threats, like exposure to covid-19 showed (raine et al. 2020). on the other hand, due to the nexus between human, animal and ecosystem health, the collaborative, multi-sectoral, and trans-disciplinary approach of “one health” was introduced in 2003–2004 (prata et al., 2022). this approach that works at local, regional, national and global levels intends to achieve optimal health outcomes, taking into account the interconnection between humans, animals, plants and their shared environment (prata et al., 2022). health care is different from health. health care constitutes one of the three main pillars of social policy; the other two are education and social welfare (income) security. health care policy aims to enhance the physical well-being of all population members, where children and elders are given particular focus. health care is comprised of government decisions affecting the cost, delivery, quality, accessibility, and evaluation of programs conventionally funded through taxation. in a publicly funded health care system, the key delivery mechanisms are hospitals, health care professionals, and public expenditure. (mcgregor, 2001, p. 82). in general, biomedical reductionism (normalized and sustained in the last decades by the domination of neoliberal capitalism in economy, politics and education) in the health-related issues and health care sector should be criticized in the context of social and ecological determinants of health. health care is indispensable for health and human life, to ease human suffering and serve human life by improving both the length and the happiness of human life. health care has long been provided in various non-monetized forms, but it was only during the twentieth century that health care “rights” and “commodities” emerged in the sense in that they are used today (gaffney, 2017). on the other hand, health rights (as a concept is explored next) and health care are different notions, though they are closely interrelated. if health rights refer to a broader human rights concept (being grounded legally and ethically in international human rights law and in domestic legal systems of many countries), health care means tools or specific systems and services to enact health rights, foremost in the form of clinics, treatment, https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 7 medicines. health care can be universally accessible or not (in private system). human rights to health are violated in the presence of a high-quality health care system which is not accessible to those who cannot afford it (the case of the usa is an eloquent example, which is explored below). 4. normative-legal grounds of the right to health the human right to health is legally recognized in international human rights treaties; it is also protected by regional human rights laws and domestic law. (hesselman & toebes, 2015). the international and national legal regulations concerning health rights can show that law is pervasive, though not always visible. (kaldor, et al., 2020). theoretically, understanding health as a human right imposes a legal obligation on the states to ensure access to timely, appropriate and affordable health care of appropriate quality, as well as ensuring the relevant determinants of health, such as access to safe drinking water, provision of necessary sanitation, food, housing, health-related information and health education, finally gender equality”. (yaroshenko, et al. 2022, p. 250). article 25 of udhr recognizes the right to an adequate standard of living, which includes the right to health and medical care. the international covenant on economic, social and cultural rights (icescr) 1966 provides the most comprehensive article on the right to health in international human rights law. article 12 formulates the right in a broad way as the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”; the right to maternal, child and reproductive health; the right to healthy natural and workplace environments; the right to prevention, treatment and control of diseases; and the right to health facilities, good and services are stipulated (international covenant, 1966). general comment no. 14, adopted in 2000 by the un committee on economic, social and cultural rights (uncescr) interprets the right to health as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, beyond preventive and curative health care to address underlying determinants of health beyond the health sector, including food, housing, work, education, non-discrimination, and equality. (e/c.12/2000/4: general comment no. 14; gostin, et al. 2018). the right to health is recognized in international convention on the elimination of all forms of racial discrimination (1969), convention on the elimination of all forms of discrimination against women (1979) and convention on the rights of the child (1989); convention on the rights of persons with disabilities (2007). also, the regional legal systems of protection human rights, such as the european, the inter-american and the african recognize the right to health. while the european social charter recognizes the right to protection of health (article 11), as well as the right to social and medical assistance (dalli, 2018, p. 25), the european convention on human rights premised on the idea to prioritize civil and political rights, hence it does not contain references to health care. in other words, the https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 8 european court of human rights (ecthr) decided to make a distinction between civil and political and social and economic rights, and it does not directly construe social rights such as the human right to health. (catalán, 2022). however, right to health care was raised before the ecthr, mainly in relation to articles 2 (right to life) and 8 (right to respect for private and family life). (marochini, 2013). overall, it can be argued that the ecthr is more inclined to use “integrated approach” in interpreting the convention; moreover, the court started giving some indications that it might to a degree include the right to health care into the european convention on human rights. this position can be explained by the principle of the indivisibility of all human rights. (marochini, 2013). the decisions of international human rights courts are also important for understanding the development process of the right to health. in the case of poblete vilches and others v. chile, the inter-american court held for the first time that the respondent state had directly violated the right to health. the court addressed general comment 14 and the aaaq standard of availability, accessibility, acceptability and quality. the court focused on access to essential healthcare services, the guarantee of effective and highquality medical care and the duty to improve general health conditions for the population. in its ruling, the inter-american court developed two rights. the first is the right to life and personal integrity of the elderly and the second is the right to health, especially for the elderly. in this case, the court recognized for the first time the right to health as an autonomous right (massa, et al. 2021). the case of mehmet şentürk and bekir şentürk v. turkey (2013) is considered in the context of article 2 of the european convention on human rights (the right to life). the court found a violation of the fundamental right to life due to the failure of national law. while the element of personal negligence is relevant, in order to engage the state’s international responsibility under article 2, an unfit legal framework was required. (ecthr, mehmet şentürk and bekir şentürk v. turkey, april 9, 2013). thus, the objective factor such as the inadequacy of the domestic legal system in protecting the right to health (with a reasonable connection to the protection of life) was a main reason why the ecthr found the failure of the state. (catalán, 2022). despite all the positive developments at the international (global, regional) and national level mentioned above, there are still problems which will be examined in the next section by considering the contested nature of the right to health. on the other hand, while law is an important determinant of health outcomes, it has so far been underutilized as a tool to improve global health. (kaldor, et al., 2020). 5. the human right to health as an “incompletely conceptualized” and an “incomplete role” of the who 5.1. understanding the human rights to health and health care there are many different interpretations of the nature of the right to health. conventionally, the right to health as a “fundamental human right” (icescr, general comment no. 14) is based on the idea of “inherent dignity of the human person” (icescr, https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 9 preamble, udhr). an alternative position holds that it is “a moral right grounded in duty” or “a moral right derivative of the strict-sense human right to life but not dignity” (erk, 2011, p. 308). however, an alternative position holds that health care should not be regarded as an individual human right. moreover, according to this view, such a right does not currently exist in law and, if established, would lead to an expansion of government controls over health care, which would have a negative impact on efficiency and patient welfare (goodman, 2005). voluntary efforts based on partnerships, but not on legal mandates, should be created to expand access to health care. hence, marketbased mechanisms and incentives are more effective in ensuring innovation and access to health-related services. (goodman, 2005). the right to health can be understood as a “cluster of rights” (dalli, 2018, p. 28). according to flood and gross (2014), the right to health is a social right recognized in the post-world war ii international human rights order. in recent analysis alvarez (2022) points out that right to health and health care have the status of customary international law; specifically, the right to health is defined as the economic, social, and cultural right of the individual to have a universal minimum standard of health without any discrimination. also, recently volker turk (2024), un high commissioner for human rights, qualified the right to health as a fundamental human right, a duty held by all states under international human rights law. on the other hand, gostin et al. (2018) noted that udhr established a modern human rights foundation that has become a cornerstone of global health, central to public health policies, programs, and practices. some scholars perceive the human right to health as evolving collective right (see, meier and fox, 2013): this right is thought to have evolved from an “individual right of persons against a single governmental duty-bearer to a collective right of peoples against myriad duty-bearers throughout the world” (meier and fox, 2013, p. 61). the advocates of the global health law movement accept the right to health as an individual and collective human right. global health law specifically points out that udhr by establishing a human rights foundation under the un became a cornerstone of global health. (meier et al., 2023). a more pragmatic position defines the right to health as a traditional socioeconomic right, which has the status of an aspirational right with the main problematic issue being its non-justiciable character. (marochini, 2013). moreover, there is no universal definition of the right to health (also on the right to healthcare) and there has been significant disputation on the international and regional level regarding the nature of right to health. (marochini, 2013). therefore, tobin indicated (2012), the right to health remains a relatively new concept, even within the medical profession and among public health professionals in general; moreover, some philosophers tend to disdain what they see as the weak philosophical foundations of the right to health in international law. harrington and stuttaford (2010) point out that for many, the idea of the right to health suffers from vagueness, incoherence, and incompleteness, especially when compared to more conceptual and established civil and political rights. the formal recognition of the right to health can be described as incomplete, although this process involves many institutions and reference documents (marks, 2013). https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 10 the “incompletely conceptualized” nature of the human right to health is also due to the difficulties in developing social human rights (see, further in the section about the repercussions of neoliberal capitalism). for decades, the development of social rights was overshadowed by the focus on civil and political rights in many democratic countries and by most human rights organizations. overall, the lack of theorization, insufficient legal tools or intellectual prejudice characterized the underdevelopment of social rights even in the realm of international human rights law (catalán, 2022). on the other hand, the right to health is characterized by weak mechanisms of domestic and international legal enforceability. according to comparative research, the enforceability of the right to health is different in different types of health systems. in highincome countries with tax-funded health systems there is an obvious lack of an enforceable right to health. in middle-income countries with big gaps between a poor public health system and a rich private one, it is more likely to find an express constitutional right to health care (or inferred from the right to life). (flood & gross, 2014). in some such as china and hungary, with relatively well-functioning health care system, there is no judicial enforcement of health rights. in some other cases the approach of the judiciary is very modest and incremental, as in south africa and india (flood & gross, 2014). at the international level, particularly the mechanism of the icescr, which monitors the implementation of the right to health, is still weak. this mechanism is based on the individual complaint, which was only introduced in 2008 by the optional protocol to the icescr. it enables individuals and groups of individuals to send communications to the icescr in which they claim a violation of their economic, social and cultural rights. the optional protocol has only been ratified by thirty (out of 172) states by the end of 2024. however, 116 states have ratified the optional protocol to the iccpr (view the ratification status). in general, states have been and still are reluctant to commit to social rights objectives, such as the right to health (dally, 2018, p. 35). although the right to health was among the social and economic rights recognized in the post-world war two human rights regime, it remained relatively dormant for about the first 50 years after its official recognition (flood & gross, 2014). this was largely due to the “incomplete role” of the who, which is analyzed below. 5.2. “incomplete role” of who in parallel to its inclusive definition of health, the human right to health was formulated by the who broadly, in line with the statement that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, without distinction, including economic or social condition” (constitution). in international law, however, the core formulation of the right to health has been defined in article 12 of icescr, without explicit reference to social well-being, as “states parties to the present covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. in other words, despite the who’s original inclusive definition, the right to health was used without the terms “complete” and “well-being” for further normative and practical elaborations (marks, 2013). under https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 11 the ideological antagonisms of the cold war, opposition to socio-economic rights led to a narrow definition of the right to health and the determinants of health in the 1966 icescr. only a limited set of steps were outlined to progressively realize this right. even as democratic states continued to resist the expansion of a rights-based approach to health (gostin et al. 2018). in other words, in comparison with who’s definition icesc adopted more restricted definition because of the effects of the cold war. the purpose of the icesc can be interpreted in a way to include the reduction and elimination of poverty with the aim of defending the right to health. however, such an interpretative exercise is still challenging because neither the meaning of the right to health nor the methods for its interpretation are settled (hunt 2016). nonetheless, the advocates of global health law accept that article 12 of icescr is the most significant endorsement of a global right to health (néill, 2021, p. 48). tobin (2012) notes that the theoretical account of the right to health reflects the nature of the agreement that state parties have reached under international law: “the text of the relevant international treaties reflects a moral commitment to the idea that health, or more precisely the highest attainable standard of health, is an interest worthy of recognition as an international human right” (tobin, 2012, p. 50). however, the formulation and further elaboration of the right to health is generally a relatively recent phenomenon. as harrington and stuttaford (2010) argue, despite its rich historical background, the right to health was relegated into secondary status as a social right during the cold war. moreover, meier (2010a) points out that despite its early support for promoting a human rights basis for its work, the who did not engage with the human rights discourse during the crucial years of the development and implementation of the right to health and became a technical organization that stood above “legal rights”. the who distanced itself almost entirely from its earlier commitment to international health rights; moreover, it actively refused involvement in the ongoing formulation of the right to health in international legal documents. (gaffney, 2017, p. 135). also, for decades who neglected broader social determinants of health or structural factors of negative health outcomes such as social and economic class, structural poverty. in the absence of who leadership for health rights, the human rights institutions of the un — uncescr, and the special rapporteur on the right to health sought to interpret the right to health in an expansive manner that would set legal standards for addressing the underlying determinants of health (meier, 2010b). declaration of alma-ata, adopted at the international conference on primary health care in 1978, was an attempt to develop a broad understanding of health. right to health was reaffirmed as a fundamental human right and worldwide social goal (declaration of alma-ata). according to gostin et al. (2018) the right to health was reborn in this document. declaration of alma-ata called for accessible, affordable, culturally appropriate and community-based health care (community participation in health planning and implementation). primary health care was qualified as a means for creating equity. (declaration of alma-ata). in addition to the promise to progressively https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 12 develop comprehensive health care systems embodied in the health for all strategy, the declaration affirmed access to basic health care services as a fundamental human right. however, this document lacked a normative anchor of sufficient weight (hall & taylor, 2003). overall, declaration of alma-ata can be seen as introducing paradigm shift and who tried to structure global health policy through this document. the declaration of alma-ata faltered in the early 1980s, with governments unable to promote national health systems amid neoliberal economic policies. in the end, because of the neoliberal restructuring policies the “health for all by the year 2000” in many countries was eroded into “health for those who can pay”. the 2018 astana declaration, adopted in new capital city of kazakhstan, renewed human rights pledges from the declaration of alma-ata. it re-committed the states to strengthen primary health care as a cornerstone for achieving universal health coverage and health for all (declaration of astana). although the who played a central role in promoting health rights globally, it has failed for decades to establish health as a legally enforceable human right. on the other hand, the who issues non-binding decisions, declarations and guidelines that lack enforcement mechanisms. in the early 2000s, the un ushered in a new era of human rights advancement and the who responded by developing a global health law. (gostin, et al. 2018). 6. repercussions of global advancement of neoliberal capitalism and “global problems” of health rights many problems concerning social justice and health-related inequalities in our days are generated by neoliberal capitalism, late twentieth-century incarnation of unregulated capitalism, which became associated with thatcher, reagan, deng xaioping, and 1989 washington consensus (amadae, 2016). its agreed-upon facets are as follows: all value is commodified and financialized; work and gradual wealth accumulation are replaced with speculation, risk management, and casino finance; ordinary citizens experience an increasing disparity in access to resources, income, and wealth. (amadae, 2016). in the turn of 2025, it can be argued that neoliberalism is trying to adapt to changing conditions and is mutating. on the other hand, neoliberal capitalism is also changing conditions because, like any complex social phenomenon, it is dynamic, transformative and hybrid. for example, we can argue about instrumentalization of human rights by neoliberalism or the entanglements between human rights and neoliberalism or an amalgamation of neoliberal logic with human rights in specific contexts transformed both concepts (manfredi, 2018). 6.1. neoliberalism’s relativist challenge to human rights: erosion of empathy, social rights and justice in the realm of values, neoliberalism accepts that economic values, especially the maximization of profit, are paramount in human life, as they supposedly only enhance the https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 13 value of freedom and legitimately increase general prosperity and well-being. similarly, the ideologues of neoliberalism accept that the pursuit of collective (political) values not only interferes with individual freedom but also irrationally disrupts market rationality (callison, 2019). in the neoliberal understanding of values, self-centeredness and the preeminence of economic values determine all social, economic and political processes (see e.g. freeman, 2015). even if neoliberalism cannot adequately answer the question “what is the purpose of an economy?”, wealth, profits and money-making are celebrated as ends in themselves (sanghera & satybaldieva, 2021, p. 281). money becomes the medium for all values. essential human faculties like solidarity and goodwill are invalidated (amadae, 2016). however, the juxtaposition of individualism and social solidarity leads to the erosion of empathy (see below). neoliberal capitalism’s belief in the “universality” of the market economy implies a relativist approach to the universality of human rights. neoliberal ideologues regard “the expressions of human subjectivity as meaningless without the ratification by the market, they are nothing but relativism, each as good as any other” (metcalf, 2017, online newspaper). moreover, neoliberal “moral” truisms assert that “freedom is only possible in a market society” and “totalitarianism and redistribution inevitably go hand in hand” (see, morefield, 2020; whyte, 2019). neoliberalism’s logic contradicts the fundamental idea of the ontological equality of human beings, which is based on the idea of the universal dignity of humankind. all these can be seen as the relativist challenge to the universality and indivisibility of human rights, and the primary victim is social rights. since the late 1980s, neoliberal capitalism has transformed the philosophy of the state, with its institutionalized commitment to social protection and justice, into a philosophy that protects the rentier classes, transnational corporations and big property owners against citizens demanding their rights. on the other hand, the apathetic logic and cold rationality of neoliberalism, based on unconditional belief in a self-regulating market, is a socially learned “cultural prejudice” that undermines human capacities such as caring, empathy, solidarity and justice, and hardens the human personality. (barreto, 2006). the neoliberal reforms became the manifestations of the deep erosion of empathy and justice. it was meaningful that one of the first neoliberal reforms exemplified the violation of the basic rights of the most vulnerable people. it was the decision of reagan administration to deinstitutionalize patients in psychiatric hospitals in the united states, which resulted in approximately 140,000 mentally disabled people who were most in need of care and protection of their dignity being thrown out onto the streets across the country (yamin, 2015, 20). neoliberal capitalism accepts disembedded from social needs economy as the central, defining feature of liberal democracy; moreover, it equalizes unregulated neoliberal capitalism and democracy (onge, 2017). hence, social programs and development of social rights based on solidarity principle was invalidated since welfare was pejoratively described by neoliberalism as parasitic (sayer, 2018) and social policies were regarded as a sign of totalitarian mind (whyte, 2019). however, the notion of human dignity protected https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 14 by social rights is fundamental to the welfare state and is increasingly accepted as an essential aspect of democratic society (misztal, 2013). moreover, the respect for universal human dignity distinguishes “genuine” democracy from “populist” pseudo-democracy (zhussipbek, 2025). the neoliberal agenda led to the reduction of the state’s ability to comply with its positive human rights obligations. however, through the prism of the principle of solidarity, social rights are about ensuring a universal and egalitarian production of goods and services, which corresponds to the function of the socially responsible democratic system. (catalán, 2022). the systemic injustice inherent in neoliberal capitalism leads to structural injustice, one of the reasons for the deterioration of the health of the population and the health system in recent decades and the high costs caused by the covid-19 pandemic (benach, 2021). the negative effects of neoliberalism on health are discussed below. 6.2. neoliberal capitalism vs development of health rights neoliberal capitalism uses the narrowly defined concepts of health and the right to health to justify (in addition to belief in unregulated market’s virtues) the privatization and commodification of health care. even universal health care can be stripped of its “universal” meaning, although the “universal” moniker implies a fully public and equitable system. however, in a neoliberal context, it can be [mis-]used to provide health care depending on economic status (gaffney, 2017, p. 219). that the government’s focus is shifted from ensuring access, quality, equity, and efficiency in the administration of public services to that of a profit-seeking business manager is one of the most pernicious effects of neoliberal privatization (freudenberg, 2021), which could be felt most dramatically in the health care sector. the global financial institutions were the main actors in promoting neoliberal reforms in the health care sector (waitzkin & hellander, 2018). being focused on austerity programs, shrinking the social protection, and the privatization of services related to health care, which were previously based in the public sector, neoliberal restructuring of the 1990s and early 2000s or the so-called health care reforms created different delivery mechanisms for health services by prioritizing market rules for-profit system over the common good, functionality over human well-being (mcgregor, 2001, p. 82). these constitute fundamental difference from past or “conventional” private medical services (see, gaffney, 2017). fundamental changes in economic philosophy led to the replacement of primary health care by “health sector reform”, based on market forces and the economic benefits of better health (hall & taylor, 2003). thus, formerly universal systems were dismantled in favor of differential access, which violated the core principle of non-discrimination. (o’connell, 2010). in general, the adverse effects of neoliberalization of the health care system can be seen in the serious destruction and chronic under-financing of the health care sector. in this regard the post-socialist countries, which used to have publicly funded, efficient, and robust health care systems, provide interesting example (see below, the case of kazakhstan). if neoliberal policies do not reduce government health spending per se https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 15 (for example, reduction of spending is not the case in the usa, where the government health expenditures have increased sharply), they have been channeled through private companies and enriched them. in other words, neoliberal health care reforms were focused primarily on the privatization of services previously based in the public sector and on shifting public sector trust funds to private for-profit insurance corporations. in general, neoliberal reforms negatively impacted health care systems in the countries that underwent neoliberal reforms (mcgregor, 2001) and caused devastating impacts on physical and mental health of the population (gaffney & muntaner, 2018). neoliberal capitalism leads to health inequalities, which are structural, but in essence avoidable, if appropriate mind-set is developed and policies are adopted. privatization of health care resulted in a skewing of access, which favors the better-off in society, rather than the less-well-off, who often have more pressing health-related needs. (harrington & stuttaford, 2010, p. 10). scott-samuel et al. (2014) point out that due to neoliberal reforms the population of the uk became fundamentally less healthy. according to another recent research, the privatization of national health service in italy made the population more vulnerable and unprepared to tackle covid-19 pandemic (buzelli & boyce, 2021). the landmark research focused on the usa which analyzed more than 662 000 hospitalizations at 51 private equity-acquired hospitals found that in the three years after a private-equity acquisition, the rate of serious preventable medical complications increased significantly. (kannan, et al., 2023). overall, this comprehensive research concluded that emphasis on short-term material gains leads to cost cutting that is dangerous for patients (kannan, et al., 2023). a 2018 report from the u.s. government accountability office found that twice as many rural hospitals closed between 2013 and 2017 than in the previous five years, and that those that remained were in much worse financial shape than their non-rural counterparts. rural hospital closures disproportionately occurred in the south, among for-profit hospitals, and among medicare dependent hospitals. (rural hospitals, 2018). treating unwell individuals not as patients but as consumers for material gain and reducing government spending on health care creates the situation when the standard of care they receive will ultimately suffer. (kennett, 2017). neoliberal reforms gave a result of the reconstruction of the public sector health care system, retreat from universalism, increased cost-sharing, privatization, the commercialization and commodification of health care (waitzkin, 2018, p. 16). the commodification of health care, which led to paradigm shift in health care sector, can be defined as the transformation of the interaction between a patient and caregiver from being deeply personal between people into an impersonal economic relationship. a patient is viewed as a buyer of care, and health care is turned into a thing or commodity that is bought and sold. moreover, “instead of turning to a particular human being for care, patients are supposed to relate to a corporate institution, where doctors and nurses are interchangeable parts” (himmelstein & woolhandler, 2018, p. 57). the commodification of health care has downgraded the social and class position of health professionals. because of the loss of control over their work process and a diminished ability to generate independent incomes, the medical profession has become “proletarianized.” (waitzkin, 2020). https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 16 the systemic negative effects of narrow understandings of health, normalized by neoliberal capitalism, range from abrogation of health for all strategy accepted by declaration of alma-ata to the emergence of internally contradictory and “teeth-less” universal health coverage, ambitious un health policy goal to achieve health equity and social justice. overall, neoliberal health care reforms led to increased inequality and poorer health outcomes worldwide, due to the systematic denial of access to health care. a narrow understanding of health (limited to bio-medical understanding) and right to health (limited to health care, which even under urgent needs may not be universally accessible) is a natural consequence of the overwhelming influence of neoliberal capitalism in many areas of life in recent decades (a more deeper analysis suggests that a narrow understanding of health is a consequence of reductionism in sciences shaped by positivist epistemology, for example, critical realist scholars hold that in the research on health and wellbeing, reductionism is expressed as the reduction of causality to a biophysical cause (bhaskar et al., 2017). what is paradoxical is that the primary organization responsible for the protection of health rights, who, could not provide any serious resistance to the destruction of neoliberalism, moreover it became silently complacent in its global advancement. 6.3. the silent complacency of who to neoliberal “new normal” where who neglected human rights, it did so to the detriment of public health (meier, 2010a, p. 2). even though after twenty years of shunning human rights discourse, in 1978 who’s public health leadership came to see human rights principles as a moral foundation upon which to frame who’s health for all strategy for primary health care — it was too late. the rise of neoliberal reforms in subsequent decades led in parallel to the normalization of the limited or bio-medical understanding of health (which is distant from the bio-psycho-social one, introduced by engel) that focuses on vertical, narrow, curative interventions in the context of national health system retrenchment, reduced health expenditure, and widening health inequities. (meier, 2010a, p. 47). in this context, who moved away from the comprehensive primary care approach and instead advocated vertical programs to treat disease and efficiency at the expense of equity (emmel, 1998). thus, who’s initial inclusive definition of health turned out to be obscured because of neoliberal capitalism’s inherent animosity to social policy. overall, despite numerous efforts to develop a broad understanding of health, as expressed in the health for all strategy, a limited understanding of the right to health emerged in the coming decades, interpreted predominantly as a right to health care, without taking into account the broader political and social factors. in the 1990s, in the midst of health system reforms demanded by neoliberal agenda, who was viewed as an inept countervoice, quite unable to communicate the central importance of primary health systems (murphy, 2013, p. 28). moreover, rather than opposing the neoliberal restructuring under the legal mantle of health rights, who fell victim to neoliberalism, forced into public-private partnerships for individual health care instead of primary health care for the public’s health. (meier, 2010a, p. 48). overall, the underlying motives of self-interest and national interest, as well as a lack of political will at the global and national levels, seriously contributed to the failure https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 17 of international organizations to make a concerted effort to conceptualize the broad definition of the right to health (ruger, 2008). who accepted the medicalized view of health because international development agencies, driven by the larger “medicalindustrial complex” and ignoring the social determinants of health, promoted the limited bio-medical understanding of health. this understanding prioritized the production and use of antibiotics, medical technologies, and the construction of private urban hospitals as a means to achieve economic growth (meier, 2010a). nonetheless, who in the bangkok charter on health promotion in a globalized world adopted in 2005, which can be seen as swing in a different direction, attempts to take again a more inclusive approach to health. (the bangkok charter). however, a more thorough analysis of this document suggests that the who has moved from a “new social movement discourse on eco-social justice” in the 1986 ottawa charter to a “new capitalist” discourse on law and economics (porter, 2007). although the content of the bangkok charter can be read as a response to “many global changes and trends that critically affect health and well-being,” its discourse in reality helps to support many of them (porter, 2007). overall, the weaknesses of who in the 1990s and early 2000s in developing rights-based approaches to health created insurmountable barriers to the development of the right to health (meier, 2010b). the narrow definitions of health, based on a biomedical understanding of health (which neoliberal capitalist min-set normalized) separate the concept of health from well-being. these definitions cannot carry value to the understanding of health in the context of the right to health (marks, 2013, p. 6). the ineffective role of who seriously contributed to limiting the scope of the right to health to the instrumental and technical level. 6.4. case studies of usa and kazakhstan: the negative effects of neoliberal capitalism on health rights the analysis of the us and kazakhstan is interesting when it comes to understanding the impact of neoliberal capitalism on health rights. these two countries are very different, but they share one commonality — dominant in social policy neoliberal capitalism, which is directed against care, dignity, social solidarity and justice. the us is the richest country in the world, but health care is the most expensive in the world, with significant structural health inequities. the country spends more than twice as much money on health care as other high-income countries, with worse outcomes (mcclear, 2025). american health care system is extraordinarily unequal and fragmented, largely based on private insurance; hence principle of solidarity and decommodified health care are beyond rule. overall, in american welfare and health law, the commitment to public care is generally contested and marginalized and health care is based on the political rejection of a collective response to the human need for care. even the affordable care act for vulnerable people stands as a weak statutory right to health care. in u.s. health law, the emphasis on meeting basic human needs has taken shallow root. (emerson, 2021, p. 47). there is no universal health coverage; millions of people remain uninsured https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 18 or underinsured; access to healthcare is highly dependent on income, employment and government policy. nearly one-third of americans lack adequate access to primary care services; 40 percent of adults said they were delaying or forgoing doctor visits because of the high costs; more than one-third of all counties in the u.s. lack a single obstetrician or birthing facility (why more americans, 2023). the case of kazakhstan is interesting and important. kazakhstan, whose largest city almaty, was the birthplace of the declaration of alma-ata (and in 2018, it was the home for the declaration of astana), is still struggling to achieve accessible and quality primary health care and truly “universal” universal health coverage. although kazakhstan’s healthcare system is a legacy of the soviet welfare model, it has been severely thinned out by imf-imposed neoliberal reforms, leading to a catastrophic deterioration of health care in many regions. for example, the number of hospitals, especially in rural areas, fell by almost half, representing the largest decline in the region (vang & hajioff 2002, 161). the institutionalization of the robust free primary health care system in kazakhstan was hindered mainly by the neoliberal restructuring in recent decades and neoliberal mindset that still haunts kazakh politicians, economists, and even public health professionals. the neoliberal institutions of public health care are geared towards neoliberal profit maximization. because of a modest volume of government spending on health and education coming from “thin” social policy based on neoliberal ideology (kazakhstan is the hydrocarbons rich country, 10th oil producer in the world with a small population), kazakhstan was among the ten countries with the lowest level of healthcare funding in relation to gdp (zhajetova, 2022). reforms are underway but as of 2025, there is a partial universal health coverage characterized by neoliberal principles, many people are uninsured, paying out-of-pocket is high, people in rural areas and from vulnerable groups face structural barriers to their health rights. 7. neoliberal mind-set and minimalism principle in legal systems law played a critical role throughout the 20th century to deliver safe and effective medicines and vaccines, to establish functioning health care systems, and to improve the built and natural environments. (kaldor, et al., 2020). however, many of these social policy related phenomena came under assault with the global rise of neoliberal capitalism. concerning the right to health, the so-called principle of minimalism is adopted in many legal systems around the world; also, the minimalistic conceptualization of social rights is predominant in international human rights law (catalán, 2022). in line with minimalism principle, the right to health has been largely understood as a minimum core of health care services aimed at subsistence or survival. the state complies with the right to health as set forth in article 12 of the icescr as long as this minimum of services is provided irrespective of the way in which the provision of health care services is organized, public or private. (catalán, 2022). this paper asserts that minimalism principle is allied with the narrow understanding of right to health normalized by neoliberal capitalism. judicial protection of health-related human rights can be a force for progressive change. however, the scholars who conducted comparative research in this area developed https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 19 more cautious positions (see, e.g. flood & gross, 2014). in fact, judicial protection of health rights addresses only the “tip of the iceberg,” in a way that obscures the need for other strategies of systemic reform, or worse, may be co-opted in a way that exacerbates access issues. (flood & gross, 2014). in the countries with liberal democratic system (like the us and canada) judicial protection of health rights led to the individualistic and often negative interpretation given to health rights. as a result, health rights can be interpreted as rights of non-interference, requiring only that the state not act rather than take positive action (flood & gross, 2014), which is against the principle of solidarism and cannot pave the way for developing full-fledged social human rights, including decommodification of health care. however, commodification of social rights like human rights to education and health endangers the universality and equality of social rights. on the other hand, minimalistic conceptualization of social rights, which is predominant in international human rights law makes conventional legal approach (catalán, 2022) not very much sufficient for creating viable health rights. moreover, the litigation of health rights may undermine equality and reinforce privatization within established systems of universal health care like in canada. though what is needed is a more expansive judicial interpretation of existing constitutional rights to include a positive (publicly funded) right to health care; to date, the canadian supreme court has been steadfast in its reluctance to do this. in the countries where health-related rights are given a positive interpretation, injustices can arise if limited public resources are diverted to those with the means and ability to litigate their right to health (flood & gross, 2014). concerning difficulties in determining the minimum core of the human right to health, tasioulas (2017) notes that the potential discrepancy between international human rights law and constitutional law ought to be indicated. while international human rights law is intended to give legal recognition and effect to human rights, which are moral rights that we possess simply because of being human beings, constitutional rights are organized around the idea of rights we ought to possess as citizens of a given polity (tasioulas, 2017). in this regards, catalán (2022) notes that the development of human rights reflects that courts and legal scholars have mostly made themselves busy with finding the consequences civil rights have over social rights, and not so much vice versa. however, the indivisibility of human rights requires that human rights interpretation is, at the very least, something larger in scope than the interpretation of civil rights. overall, it can be argued that until today judicial protection of health rights at the domestic/ national level has been only a partial solution because law can be interpreted differently, either from solidarity principle (see below) or principle of minimalism, suitable for neoliberal mind. 8. non-inclusive sustainable development and “teeth-less” universal health coverage 8.1. criticism of sustainable development the scholars at the amsterdam school of governance indicate that the concept of sustainability, as the un defines it, hardly leads to actual “inclusive development” since it entails “perpetual economic growth”, which is incompatible with “inclusion” https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 20 as a multifaceted ambition. social inclusion of sdg fails without ecological inclusion, relational inclusion and relational betterment (the betterment of one group should not come at another group’s expense) (rammelt & gupta, 2021; gupta & vegelin, 2016). however, inclusive development means a set of policies aimed at improving the social wellbeing of all segments of society and achieving environmental friendliness of development models. inclusive development is about social inclusion, relational development and environmental inclusion, all of which are determinants of broadly understood health. (gupta et al., 2015). specifically, inclusive development aims to address not only social but also ecological and relational inclusion, with the latter aiming to ensure that the structural causes of inequality are also addressed (obani & gupta, 2017). the covid-19 pandemic revealed the weaknesses of societal governance and underlying flaws and crises that were already present in the pre-pandemic global socioeconomic system. (gupta et al., 2021). the pandemic has shown that the sdg 3.3 and sdg 3.8 do not contain a conceptually sound analysis to address issues of social, environmental and relational inclusiveness, which lie beneath the multi-layered crisis. in other words, the concept of sustainability as defined by the un gives in to the idea of growth for growth’s sake and lacks relational development and relational inclusivity; it does entail any serious plan about systemic transformation of the global economy and post-growth development agenda. (rammelt & gupta, 2021). covid-19 exposed and illuminated a number of underlying crises that were already inherent in the global political, economic-social and health system. (gupta et al., 2021). hence, sustainable development does not offer solutions which can change structural and systemic underpinnings of existing political, economic, social inequalities. it can be depicted as mere intra-paradigm alternative (or a version of capitalist economy-centric, “growth for the sake of growth”, where human rights, including health rights, “coexist far too comfortably with neoliberal economic paradigms.” (yamin, 2015, p. 19). to conclude, the notion of sustainable development may not provide systemic and paradigmatic criticism of hierarchical and anti-solidaristic capitalist morality. also, sdgs can hardly develop viable human rights to health and health care because they are still non-inclusive. 8.2. unfulfilled aim of uhc one of who’s major attempts to further develop the right to health was the goal of creating the universal health coverage (uhc). uhc means that all individuals and communities receive the full range of quality health services they need without financial hardship. it covers the full continuum of essential health services, from health promotion to prevention, treatment, rehabilitation, and palliative care across the course of life. (universal health coverage). however, uhc and universal access are not identical concepts. if uhc is about coverage and protection, universal access is about the real ability to get necessary care. a country can have uhc formally, but some people still cannot access care. practical implementation of uhc can fail due to structural, political, social, cultural and economicfinancial factors. in fact, universal access is about complete decommodification of health care as a result of implementation of solidarity principle (catalán, 2022, see, further). https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 21 in 2015, the un adopted sustainable development goal (sdg) 3.3 (control communicable diseases and epidemics and provide access to affordable essential medicines and vaccines) and sdg 3.8 (achieve uhc worldwide by 2030) in health rights. the aim of creating uhc has risen to prominence in global debates. the 2019 un political declaration on uhc, which states that “with a dedicated focus for the first time on universal health coverage”, reaffirms the human right to health, which is “the right of every human being, without distinction of any kind”. it also emphasizes that health is a precondition, an outcome and an indicator of the social, economic and environmental dimensions of sustainable development and the implementation of the 2030 agenda for sustainable development (political declaration, 2019). however, the strategy of the un and who to develop uhc turned out to be teeth-less. as health policy watch, the independent global health institution, notes in the post-pandemic period, there has been little progress in expanding universal uhc since the un meeting on the issue in 2019. furthermore, the trends in financial protection are even worsening, with catastrophic out-of-pocket spending increasing when compared to 2015. (fletcher, 2023). regarding the discrepancy between the stated goals of creating uhc and the reality before and after the pandemic, who stated in october 2023 that “the world is off track to make significant progress towards uhc by 2030” (universal health coverage). the improvements to health services coverage stagnated since 2015. the proportion of people who face catastrophic out-of-pocket health spending levels has steadily increased since 2000. this negative pattern is almost global; it is consistent across all regions and the majority of countries. (universal health coverage). numerous obstacles to developing human rights to health and health care, for example, the slow progress, even stagnation of the creation of uhc, foremost in economically and technologically advanced countries, despite all the needs and urgencies revealed by the covid-19 pandemic, point to the systemic and structural problems inherent in neoliberal capitalism, which can be neutralized by adherence to solidarity principle and development of indivisibility of human rights. this paper draws attention to the fact that while one pillar of uhc, provision of necessary health services, fully contributes to developing health rights, second pillar, the reliance on insurance coverage (it turned out to be private), by normalizing commodification of health care, curtails full-scale development of health rights (see, further about the need for decommodification). as khoo (2015) notes, under sustainable development goals, uhc can be used to weaken one-tier universal systems and help legitimize and create twotier systems, with increasing public ambivalence towards the principles of universality and solidarity in health care. for example, those european countries that could achieve equitable, rights-based universal coverage in earlier decades have experienced over two decades of reforms in the opposite direction. responsibility was changed between the welfare state and the individual citizen (khoo, 2015). the shifting dynamics within uhc frameworks across different countries can be criticized because to make uhc achievable there is the need for a rights-based approach https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 22 that integrates solidarity and individual responsibility. however, this kind of integration within uhc tends to weaken the solidarity principle. overall, uhc can be seen only as a partial return to an earlier transformative agenda for health equity and social justice under the banner of primary health care (khoo, 2015). on the other hand, sdgs fell short to develop decommodified understandings of health care based on solidarity principle, hence they are not sufficient to develop full-fledged rights to health and health. the barriers to creating truly universal health care rose because of repercussions of neoliberal capitalism. the mental, structural (e.g. the inadequate funding and resource allocation primarily because of the direct and indirect effects of neoliberal reforms) and institutional (e.g. exemplified by the vested interests of primary actors in health care sector such as private insurers and pharmaceutical companies) obstacle are the main reasons for failure to achieve genuinely universal and decommodifed uhc. successful implementation of uhc can be possible only under solidarity principle. 9. suggestions for developing the full-fledged human rights to health and health care this paper suggests that the recognizing and making health and health care fullfledged human rights require (1) systemic changes in political, economic and social systems; (2) cultural transformation and mental revival prioritizing care, empathy and dignity in our personal and social life (which is the most important factor); (3) realization of indivisibility of human rights and development of social rights, which are indispensable to protect human dignity; (4) implementation of solidaristic perspective leading to the complete decommodification of health care. 9.1. systemic changes temporary measures like allocating funds to improve medical treatment or cash transfers, or the increase of salaries, cannot solve structural problems caused by neoliberalization of health care systems and transformation of the state and legal system by neoliberal capitalism. reforms in health care systems to improve access to health care services or medicines will not remove the barriers to develop health rights, which stem from structural inequality, poverty, racism, social hierarchies, scarcity mindset, erosion of empathy caused by capitalism. a piece-meal approach to developing health rights may risk depoliticizing health issues, which can be found especially in conventional epidemiological studies (porto et al. 2017, 112). tackling wide health inequalities requires concentration on a bold vision which unites health with justice. it demands fighting against structural inequalities, such as poverty, discrimination and violence, which are the root causes of ill-health; and it is a global project (kaldor, et al., 2020). the right to health is dependent on and inextricably linked to a wide range of civil and political rights. (yamin, 2008). hence, the right to health is not just a juridical standard but a political means of resisting the effects of neoliberal capitalism in the health sector (harrington & stuttaford, 2010; o’connell, 2010). https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 23 without committed and accountable governments that are willing and, crucially, able to comply with their human rights obligations, the proliferation of human rights instruments and solemn declarations in the face of entrenched structural conditions conducive to the denial of human rights have no real meaning (o’connell, 2007). overall, we need the fundamental reappraisal of the current capitalist system, which means, among other things, the creation of an embedded economy in which economic processes are subjected to democratic control of society, something that no country has yet succeeded in doing. (sanghera and satybaldieva, 2021). this reorientation can only be achieved in the post-growth world with relational inclusion, socially responsible economic model, as inclusive development scholars propose. (gupta et al., 2021). the full-fledged development of human rights to health and health care demands philosophy and epistemology that connect welfare, economic and social rights and universalistic understanding of human dignity. this means the creation of a universal, generous welfare state with equal access for all citizens to vital social services and decommodified health care and education. all of these can be possible with the changes in the philosophy of the state, law and economy, what can be possible with mental change, cultural transformation (which is touched upon the next). hence, if follow the logic of putnam, mental or cultural transformation and moral revival should take place first, and only then will the economic, political and legal system change (woodruff, 2025). 9.2. cultural change and moral revival (revival of empathy and dignity) legal mechanisms and litigations are important in developing and supporting health rights. however, what is crucial is the worldview of those who work with law, who interpret the law. in adjudicating health rights, lawyers should scrutinize decisionmaking through the lens of health equity and equality to better achieve the inherent values of “health human rights” (flood & gross, 2014). for example, the exploration of the biographies of human rights lawyers, the advocates of health rights such as alicia yamin (2015), and jonathan mann, lawrence gostin, can show that they have internalized care, empathy and respect for equal moral dignity, solidarism. however, any good law and political decision can be re-interpreted and changed if there is a specific idea, or intention. the legal battles in the usa in 2025, when the supreme court’s rules helped erode the checks on executive authority (e.g. savage, 2025), also, the cases in canada, when the litigation of health rights undermined equality and eroded the universal nature of universal health care (flood & gross, 2014) can prove this. it is important to frame discussions about health rights and public health (also about the state, legal system, economy, security) by dwelling on the concepts of dignity, empathy and care, which are beyond conventional positivist approaches in social sciences, legal studies and “conventional normal” in academia, in general. in this sense, non-positivist epistemology may have more promises to develop health rights and human rights as a whole. a big claim of this paper is that the developing viable human rights to health and health care necessities cultural transformation and moral revival, conditioned by internalizing the primacy of care, concern, and dignity (understood in universalistic sense) in personal and https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 24 social life, as the assumptions of critical realism and ethics of care suggest. it necessitates going beyond positivist epistemology by accepting that emotions, values and reason are not contradictory, and that emotions and values are not beyond reason (sayer, 2011). overall, emotions imply real and universal structures of the human psyche that serve to evaluate the moral rightness of social interactions. they mediate our social interactions that inform others about what is valuable. (loungo, 2021). for example, in legal field, empathy can play a significant role in the interpretation of constitutional rights (corso, 2014). this paper argues that critical realism may offer more empathetic and humane approach to develop human rights by offering non-positivist meta-theoretical approach, which can help revive empathy and dignity. foremost, critical realist approach holds that our connection to the world is one concern, that dignity and care are what we need existentially, and that human intellect (reason) and emotions, values are not contradictory (sayer, 2011). however, the positivist epistemology in understanding social phenomena tends to create lop-sided reason, moreover it is complacent to neoliberal capitalism’s global spread (barreto, 2006). on the other hand, critical realism provides the meta-theoretical framework to model how human rights function on multiple levels and help theorize the generative role of emotions at the most basic level. (loungo, 2021). also, the ethics of care paves the way for solidaristic understanding of health rights (specifically health policy) and works to establish and maintain mutuality of respect and care between people and mitigates some key problems of legalistic ways of thinking of human rights (emerson, 2021). also, mental transformation and moral revival helps find alternative pathways for moving out of human rights frameworks that coexist comfortably with neoliberal capitalism. this kind of substantial change is what yamin (2015, p. 19) calls for – “if human rights-based approaches to health, and human rights frameworks more generally, are to fulfill their promise in changing the systems that perpetuate in equality and injustice, they must subvert entrenched and insulated institutions and what have become virtually hegemonic views of the world”. conventionally, it is claimed that social rights are underdeveloped because they have budgetary implications and are financially demanding. it is important to find a balance between the legal obligations to develop the human right to health and the scarcity of resources. however, the main reason today is the neoliberal orthodoxy that leads to the idea of scarcity. as of 2012 at least thirty-two trillion dollars’ worth of wealth (almost a third of the world’s wealth) was held in tax havens and offshore zones (super rich, 2022). the world we live in therefore has an abundance of material and financial resources to develop social rights in general and health rights in particular. in other words, it is the mental, intellectual scarcity caused by the neoliberal capitalist mindset, which is an expression of the lack of care, empathy and respect for dignity —that prevents us from investing in social policies. moral revival and cultural change are the most viable way to resist the unethical and immoral principles of neoliberal capitalism that create a world of extreme inequalities https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 25 and where health and health care are tradable commodities and normalize life in such a world. cultural transformation and moral revival bring about accepting that social rights are indispensable to protect human dignity and that a solidarity principle aimed at complete decommodification of health care are necessary, which are discussed in the next sections. 9.3. reaffirmation of social rights as custodians of human dignity: embodiment of care and dignity in life the human right to health can be legitimized by reference to universal human dignity or human right to life (erk, 2011). this paper holds that legitimizing the right to health in dignity also supports this right from the side of social rights, because development of social and economic human rights is fundamental to protect human dignity. (habermas, 2010). this is what has been missed in the neoliberal democracies that have paved the way for the creation of plutocracies instead of democracies (sanghera and satybaldieva, 2021). however, the key aim of social policy is to help restore or enable autonomy of human beings as far as possible, which is required by the dignity of those who benefit from social protection and help (steigleder, 2014). on the other hand, the purpose of public care is to provide individuals with the goods and services they need to exercise their agency. agency and dignity are intimately connected. right to health is one of those basic goods that enables people to define and advance their rights and interests. (emerson, 2021). the principle of indivisibility of human rights is overlooked in neoliberal and authoritarian contexts (not surprisingly, these two notions are intimately connected). indivisibility of human rights can be overlooked even in the democratic welfare context. moreover, a conventional legal approach, which is based on minimalism principle, hardly leads to developing robust health rights unless cultural or mental change takes place. the fact that the system of the european convention on human rights/ european council’s system is not supportive fully to accept human right to health care can show the degree of biased approach to social rights in this democratic context. (catalán, 2022). nonetheless, ecthr started giving some indications that it might to a degree include the right to health care in the european convention on human rights. this position can be explained by the principle of the indivisibility of all human rights. (marochini, 2013). however, the progress in using integrated approach is dependent on the ability to resist neoliberal capitalism’s effects in law, political and economicsocial systems. development of social rights based on the solidarity principle with the aims to ensure universal access to social goods and services (foremost, health care and education) means socialization of these services and their delivery through public institutions. (catalán, 2022), which is touched next. 9.4. implementation of solidarity principle and decommodification of health care health care practitioners (e.g. gaffney & muntaner, 2018) claim that a social human right to health care requires a universal public health system that provides health care as a social good, which is about the decommodification of health care. in other words, https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 26 without a universal public health system that is publicly owned and not shared by private enterprises, the full realization of health rights would be nearly impossible. the failure to realize uhc under the sdgs demonstrates this. the integration and indivisibility of both sets of human rights, political and civil rights and social and economic rights is crucial in solidaristic conceptualization of the human right of access to healthcare. attempts to develop a solidaristic definition of social rights should begin by challenging the public and private law divide. in other words, decommodification of social rights, specifically of health care, brings about questioning the public and private law divide in the context of the provision of health care services. (catalán, 2022). decommodification means universality and equality for health care as proclaimed by human rights. decommodification challenges the unequal market-based provision of services. (catalán, 2022). in essence, in public care, especially in health rights, the government should orient official practice towards mutual aid and concern rather than the creation of a maximally efficient marketplace. (emerson, 2021). theoretically, health rights are based on the principle of non-discrimination, which means that the enjoyment, especially of necessary health care, should be accessible to all groups, without distinction of economic class, social status, gender, and location (yaroshenko, et al. 2022). solidarity is against discrimination; non-discrimination is the indispensable feature of human rights as a concept. non-discrimination requires decommodification because the market economy or market rules create barriers and hierarchies. however, legal systems demarcate and authorize the public and private division of health services, which means that commodification is normalized, thus payment for health services is the biggest barrier and the main source of the divide in today’s neoliberal democracies. (catalán, 2022). decommodification of health care system means full implementation of the provisions of udhr (25 art), icescr (12 art), general comment no. 14; declaration of alma-ata. hence, insurance-based systems are not capable of achieving this goal; in fact, they do not intend to achieve this goal. only, solidarity principle-based decommodified health care systems can achieve the goal of the highest possible level of health. however, sd is at least silent about decommodification, though some critical evaluations imply the inherent problem of private-insurance logic in realizing uhc within sd model (e.g. kaldor, et al., 2020; khoo, 2015). solidarity paves the way to different notion of social rights, which interprets them not as only “survival minimums” but in a sense of deeper egalitarianism where social rights are at the service of the liberty of all via decommodification (catalán, 2022). because of this, decommodified public good means community participation or citizens active involvement in their own health care decisions and systems (e.g. the declaration of alma-ata called for citizens participation in health care systems). people’s involvement in the decisions concerning health care is against privatization logic of neoliberal capitalism, whereas privatization cuts this nature of being public by making it private and turns citizens https://doi.org/10.17561/tahrj.v25.9272 galym zhussipbek the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 27 into mere customers (dorfman and harel, 2016). overall, health care system should nurture and enable the agency of the patient. it necessitates being public and to be based on the principle of solidarism or publicly funded, decommodified health care. solidaristic perspective, which is based on decommodification, helps maximize the effectiveness and universality of social rights; hence it must be considered as necessary from the point of view of human rights protection (catalán, 2022). and the work of the uncescr reflected a perspective that has recently gotten closer to solidarity. (catalán, 2022). the acceptance of the principle of solidarity, which aims to decommodify health care, does not imply opposition to a society with markets. there are some areas where markets are indispensable, but they are not universal and absolute. this paper attempts to show that market mechanisms cannot lead to good health outcomes (e.g. the cases in the us, uk, italy and kazakhstan mentioned in this paper) and that the countries that have embraced the neoliberal model of healthcare have had negative outcomes. in essence, treating human life and health as a source of money/profit maximization is immoral. 10. conclusion health rights are among the main victims of neoliberal capitalism, which poses relativist challenge to equal moral dignity of human beings and the universality of human rights. the systemic problems in the development of social rights and the neglect of social justice are due to the persistence of capitalistic coldness and apathetic logic that influenced today’s science, education, public perceptions, politics and legal culture. making health and health care human rights is about understanding the primacy of care and dignity in our lives and social relations. indeed, the udhr (article 25) connects the right to health to the right to live with dignity, which implies care, empathy and solidarity. human beings must not be seen as widgets to make money in the private equity world. human rights should not be the hostages of allegedly “universal and natural” market rules. the human right to health can and should be a weapon against the structural injustice that forces so many of the world’s poorest people into illness and premature death, and a political instrument to help combat global health crises as they inevitably arise (muyskens, 2022, p. 99). making access to health care a human right, rather than a commodity allocated by market forces, is a fundamental challenge for 21st-century capitalism (freudenberg, 2021). a human rights-based approach to health requires that health policies and programs prioritize the needs of those at the bottom of the road to justice (yaroshenko, et al. 2022). there are enormous challenges when it comes to advancing health and social justice in today’s world, and “human rights offer no easy, “magic bullet” solutions”. (yamin, 2015, p. 244). what can be called “conventional human rights approaches”, based on a positivist epistemology, — cannot develop the understandings of health rights based on care and dignity, informed by a “solidarity” spirit and aiming to decommodify health care. there is a need for the conceptualization and development of truly inclusive human rights based on the uncompromising acceptance of the non-gradeable nature of human dignity, which is intimately connected to social rights. all of this can help to overcome the entanglements https://doi.org/10.17561/tahrj.v25.9272 human right to health, social rights and human dignity versus relativist challenge of neoliberal capitalism the age of human rights journal, 25 (december 2025), e9272 issn: 2340-9592 doi: 10.17561/tahrj.v25.9272 28 between human rights, law and neoliberal capitalism and develop viable human rights to health and health care. on the other hand, it is important to recognize the inherent flaws of the concept of sd and the sdgs. the sdgs are growth-oriented and not linked to relational development and relational inclusion. therefore, for example, it is impossible to achieve true uhc as a policy goal if free, decommodified primary care is not institutionalized politically, legally and mentally, culturally. moreover, the principle of the indivisibility of human rights requires the creation of decommodified health care. to paraphrase friedman et al. (2020), it is necessary to create a world where no one is left behind, whether in a health emergency or normal times. although the equal global human right to health care is utopian-sounding, it is as defensible as any universal global human right (gaffney, 2017, p. 219) within the conceptual framework of the universality of human rights substantiated by assumptions of the ethics of care, critical realism and other philosophies based on the idea of equal moral dignity of human beings —we owe each other as much as people with equal dignity (yamin, 2015). funding this article was prepared within the framework of the research grant of the committee of science, ministry of higher education and science of the republic of kazakhstan under the number ap19679071 entitled “search for ways of building a just, human rightscentric, and strong kazakhstan (social justice, inclusive identity, decoloniality)”. references alderson, p. 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(2025). if human rights are ignored, democracy becomes a plaything for populists, tedxastana salon. www.youtube.com/watch?v=-ib7pou4ct4&t=1s received: 24th october 2024 accepted: 5th september 2025 https://doi.org/10.17561/tahrj.v25.9272 https://www.pbs.org/newshour/show/why-more-americans-are-putting-off-going-to-the-doctor https://www.pbs.org/newshour/show/why-more-americans-are-putting-off-going-to-the-doctor https://ethicsofcare.org/learning-from-my-daughter/ https://ethicsofcare.org/learning-from-my-daughter/ https://www.pbs.org/newshour/show/robert-putnam-reflects-on-how-america-became-so-polarized-and-what-can-unify-the-nation https://www.pbs.org/newshour/show/robert-putnam-reflects-on-how-america-became-so-polarized-and-what-can-unify-the-nation https://www.pbs.org/newshour/show/robert-putnam-reflects-on-how-america-became-so-polarized-and-what-can-unify-the-nation https://informburo.kz/interview/za-cto-my-platim-i-pocemu-osms-ne-garantiruet-kazaxstancam-kacestvennoi-medicinskoi-pomoshhi-mnenie-eksperta https://informburo.kz/interview/za-cto-my-platim-i-pocemu-osms-ne-garantiruet-kazaxstancam-kacestvennoi-medicinskoi-pomoshhi-mnenie-eksperta https://informburo.kz/interview/za-cto-my-platim-i-pocemu-osms-ne-garantiruet-kazaxstancam-kacestvennoi-medicinskoi-pomoshhi-mnenie-eksperta www.youtube.com/watch?v=-ib7pou4ct4&t=1s human right to health, social rights and human dignity versus relativist challenge of neoliberal 1. introduction 2. primacy of care and universality of human dignity 3. the broad scopes of health and health care 4. normative-legal grounds of the right to health 5. the human right to health as an “incompletely conceptualized" and an “incomplete role” of the 5.1. understanding the human rights to health and health care 5.2. “incomplete role” of who 6. repercussions of global advancement of neoliberal capitalism and “global problems” of health 6.1. neoliberalism’s relativist challenge to human rights: erosion of empathy, social rights and j 6.2. neoliberal capitalism vs development of health rights 6.3. the silent complacency of who to neoliberal “new normal” 6.4. case studies of usa and kazakhstan: the negative effects of neoliberal capitalism on health r 7. neoliberal mind-set and minimalism principle in legal systems 8. non-inclusive sustainable development and “teeth-less” universal health coverage 8.1. criticism of sustainable development 8.2. unfulfilled aim of uhc 9. suggestions for developing the full-fledged human rights to health and health care 9.1. systemic changes 9.2. cultural change and moral revival (revival of empathy and dignity) 9.3. reaffirmation of social rights as custodians of human dignity: embodiment of care and dignity 9.4. implementation of solidarity principle and decommodification of health care 10. conclusion funding references blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 1 blockchain and freedom to conduct a business: between myth and reality attilio della pietra1 abstract: recent advances in technology have demonstrated the enormous flexibility of distributed ledger technology (dlt), whose potential goes well beyond the cryptocurrency trading. this article explores the potential impact that the utilization of a permissioned blockchain could have on listed companies and how this could be an appropriate instrument for a more effective implementation of the provisions of the shareholder rights directive ii. this technological infrastructure could attest the correct formation of will within the shareholders’ meeting and contribute to the creation of a truly democratic space for the meeting and discussion among shareholders, thus allowing achievement of freedom to conduct a business. however, the most advanced use of blockchain technology has a disruptive effect and exposes us to the great danger of an “algocratic” drift. therefore, this article analyses the main critical issues from both a technical and legal viewpoint of decentralized autonomous organizations (daos). keywords: dlt, blockchain, dao, e-democracy, algocracy, shareholders rights, shareholder engagement. summary: 1. introduction. 2. blockchain: nature and technical profiles. 3. permissionless blockchain vs. permissioned blockchain. 4. daos: disruptive revolution or new freedom paradigm? 4.1. main features of a new organizational model. 4.2. towards a new e-democracy? 4.3. some legal issues of daos. 5. blockchain as a tool at the service of shareholders. 5.1. the current intermediated shareholder engagement system and its related problems. 5.2. advantages of adopting the permissioned blockchain. 6. conclusions and possible future implications of blockchain technology. 1. introduction2 the blockchain phenomenon has in recent years aroused great media interest. recent advances in technology have, in fact, clearly demonstrated the enormous flexibility of distributed ledger technology (henceforth dlt), whose potential goes well beyond the simple registration of transactions and cryptocurrency trading. the interest and fascination aroused by this new technology and its only partially revealed potential could even lead the interpreter to believe that blockchain seems to be “the best of all possible worlds”3. indeed, blockchains are often considered the solution to all the problems of the analogue world, due to their ability to ensure traceability and transparency and to allow secure transactions without the intermediation of third parties. 1 phd student in the doctoral course “law and innovation” at the department of law of the university of macerata (a.dellapietra@unimc.it). 2 this article has been written within the trust project (trust digital turn in europe: strengthening relational reliance through technology) www.trust-rise.eu. 3 see leibniz 1985: 228. https://trust-rise.eu/ blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 2 this research intends to analyse the potential and risks to companies and corporate law that may derive from the application of blockchain technology and its potential impact on the freedom to conduct a business. the analysis begins with an examination of the characteristics and functioning of this technology. among other things, the fundamental distinction between permissioned and permissionless blockchains is explored. this technical reconstruction leads to the cognizance of the fact that, leaving aside its great potentiality, blockchain cannot be considered a sort of panacea of the evils and dysfunctions of the analogue world: the most advanced use of this technology can have a disruptive effect and exposes us to the great danger of a “cyber-libertarian” drift, potentially capable of subverting the institutions and traditional categories of company law and compromising the freedom to conduct a business. this article takes into account decentralized autonomous organizations (henceforth daos). these are entirely virtual organizations with no central authority which, at least in theory, promise to revolutionize the very concept of a company, establishing an e-democracy among the members and forms of flat governance. daos are taking on the features of totally or partially autonomous entities which, by exploiting the potentialities of the synergistic use of the permissionless blockchain, smart contracts and ai, are capable of establishing their own rules, placing themselves in sharp antithesis both to the traditional concept of a company and to state company law. the study continues by assessing whether the technological infrastructure is developed enough to set up new organisational structures capable of ensuring a more concrete implementation of the freedom to conduct a business. in addition, the possible uses of the permissioned blockchain are taken into account. more precisely the potential impact that the utilization of a permissioned blockchain 2.0 could have on listed companies is investigated. lastly, this research analyses whether the blockchain can be an appropriate instrument for a more effective implementation of the provisions of the shareholder rights directive ii. indeed, this version of the blockchain, which makes it possible to overcome (at least partly) the problems deriving from the long chains of intermediaries, could permit the direct identification of shareholders, ensure a more rapid, safe transmission of company information and, by exploiting the potentialities of tokens and smart contracts, facilitate the exercise of shareholders’ rights. a technological infrastructure like this could prevent tampering with the votes cast and reduce the incidence of opportunistic behaviour. this, therefore, could attest to the correct formation of will within the shareholders’ meeting and contribute to the creation of a democratic space for the meeting and discussion among shareholders, thus attenuating the crisis in the participation in company life and revitalizing the shareholders’ meeting. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 3 2. blockchain: nature and technical profiles blockchain is a particular type of dlt. this is characterized by the fact that: a) the ledger is structured as a sequential chain of blocks, within which all the transactions carried out are recorded chronologically; b) additional functionalities and applications can be developed on the blockchain platform (such as smart contracts, which perform specific actions when predetermined conditions occur) (lener & furnari 2020: 36 ff.; sarzana di sant’ippolito & nicotra 2018: 17; swan 2015: 9 ff.; abriani & schneider 2020: 1335)4. the blockchain could be defined as a digital register shared among all the nodes which crystallizes the records in a peer-to-peer network. an updated copy of the entire blockchain is stored on (and available to) all servers participating in the network (giaccaglia 2019: 944; brunelli & gasparri 2022: 57; ibáñez jiménez 2021: 49-51), which, being constantly synchronized with each other, have direct access to the contents of the ledger and are able to personally verify it. from a structural point of view, each ledger is internally divided into smaller datasets, the so-called “blocks”, whose storage capacity is limited to a certain number of transactions and which are interconnected through cryptographic systems and the use of hash functions (ahlberg & soria ruiz-ogarrioz 2020: 11-12, 23-25; al shaikhli, alahmad & munthir 2013: 1-2; garavaglia 2018: 98-99). the data entered by a user in a blockchain infrastructure is propagated, as unconfirmed data, among all the participants of the network, to then be verified, collected in a block in formation and validated by a validator node (brakeville & perepa 2016). these then flow into a specific block, which will have to be approved by the validator nodes on the basis of the pre-established consensus mechanism. once the data introduced into the system fill a block, this will be closed and timemarked using a time-stamp, and it will pass to a subsequent block, which will be validated by the network nodes to be definitively connected to the previous and subsequent blocks, thus forming a “chain of blocks”. the connection between the first block (so-called “genesis block”) and the following block is made by inserting a “pointer” in this, i.e. the hash of the entire previous block. the hash of the next block will thus contain the hash of the previous one, establishing a link between the blocks. the hash represents the unique identifier of the block and is a sort of “fingerprint” (sarzana di sant’ippolito & nicotra 2018: 13). this inevitably means that, by altering the data contained in a block, there will be a change in the hash of that block and, 4 the so-called blockchains 2.0 (or second-generation blockchains) integrate additional applications and functionalities into the blockchain infrastructure, for example, smart contracts or the possibility of tokenizing assets. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 4 consequently, an incompatibility with the hashes of all subsequent blocks, leading to a breaking of the chain (urban & pineda 2018: 8, 16, 21 ff.). the data, therefore, once entered into the ledger, cannot be modified at a later time without the participants in the network noticing it. the data are linked to the history of previous transactions5 and, even in the event of an attack or malfunction of some nodes, it will be almost impossible to compromise the integrity of the shared database, since this will survive in its entirety in the collective memory of the blockchain and can always be restored in the nodes where an anomaly has occurred. two initial conclusions on this phenomenon can be drawn from the above considerations: a) it is correct to say that blockchain technology is revolutionary in terms of the results that have already been achieved with it or that we expect to be able to achieve in the near future. however, despite what some believe6, blockchain is not a turning point from the point of view of the evolution of it systems, since the technological solutions that it uses have already been developed for some time. therefore, it does not represent a completely new technology, but rather an innovative and original use of existing technologies (urban & pineda 2018: 8). asymmetric key cryptosystems7, cryptographic hash and peer-to-peer networks have been developed since the late 1970s8, while time stamping9, systems to ensure anonymity within telematic networks and decentralised and distributed data storage date back to the 1990s; b) it is reasonable to believe that the use of a blockchain is a “cyber-safe choice to store and transmit data and information” (lener & furnari 2020: 33-38): it is highly unlikely (although not impossible) that the network is subject to cyber-attacks from outside or that its data are modified without its participants being aware of this alteration, since the network is widespread, being made up of a plurality of nodes, and, attacking a single node, by itself, does not involve the tampering of the chain10. in other words, blockchain removes the risk of the “single point of potential failure” (european securities and markets authority 2016: 12; werbach 2018: 500; priteshkumar, krutarth & parth 2020: 897-898) typical of any centralized system. if the external attack is successful, thus compromising a single node, the others will remain operational and the shared database will remain perfectly intact in their collective memory. in order to alter the records, it would be necessary to simultaneously hack all copies of the database held by each participant in the network. 5 see clusit 2019: 10. 6 usually people believe that blockchains were created in 2008, when an unidentified person – known as satoshi nakamoto – published a paper entitled “bitcoin: a peer-to-peer electronic cash system”. see nakamoto 2008. 7 see mienert 2022: 14. 8 see diffie & hellman 1976: 644 ff. 9 see haber & stornetta 1991: 99 ff. 10 see recital j) of european parliament resolution of 3 october 2018 on distributed ledger technologies and blockchains: building trust with disintermediation (2017/2772(rsp)). attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 5 3. permissionless blockchain vs. permissioned blockchain however, it must be noted that not all blockchains are the same and that an excessive generalization does not allow us to understand the sometimes substantial differences that exist between the various types of blockchains. for the purposes of this discussion, it is, therefore, appropriate to focus attention on the distinction between permissionless blockchain and permissioned blockchain and analyse the main differences between the two models as regards: the possibility for individuals to participate in the network; the ways in which the internal governance is structured; the consensus mechanisms; the powers granted to the participants; the different trust regimes that are established between the nodes11. permissionless blockchains take the form of a totally decentralized and disintermediated system, in which all participants – from the point of view of powers – are equal. permissioned blockchains determine a centralized system, in which the participants see their powers and the possibility of accessing the ledger subject to the will of a control entity or body, which establishes the rules of access and use of the platform itself. permissionless blockchains are characterized by the total absence of any central authority in its traditional sense, or – rather – by the replacement of this with the different (and distributed) authority of the entire community that makes up the network (wright & de filippi 2015: 4). consequently, there is no form of barrier to entry and no censorship. each participant in the network: a) assumes the quality of node; b) is able to view the history of all the registrations without any restrictions12; c) takes care of the validation of transactions carried out by others and, in turn, inserts his transactions. therefore, there is no need to request authorizations or permits from a central authority or an intermediary delegated by this. in the permissioned variant, on the other hand, participation in the network is subject to the consent and authorization of the central entity. on the basis of a set of defined rules, this provides for the identification and selection of the subjects who will assume the role of validator nodes, in addition to the simple users. all subjects who take part in the network are always identifiable. in permissionless blockchains users and validators – who do not know each other, since their personal identity has been pseudonymised – are difficult to identify: the transactions, although viewable by all, are not directly attributable to any natural person, but only to a particular address or a public key (rampone 2018: 462-468). furthermore, in the permissioned blockchain, on the basis of a set of defined rules the central entity is able to limit the reading and writing powers of the nodes according to its specific needs and operating rules. in this variant, therefore, the existence and 11 see osservatorio blockchain & distributed ledger 2021: 17. 12 see bitfury group & garzik 2015: 10-11. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 6 extent of the powers to carry out operations, to introduce content within the blockchain infrastructure and to use it, are left to the will of the entity that created it. in other words, permissionless blockchains make it possible to eliminate the middleman and establish trustless transactions, relying on the users’ trust in the network or, rather, in the cryptographic consensus algorithms and in the application of the rules of the specific blockchain protocol (garavaglia 2018: 114-115) that regulate the mechanism of validation and data storage. in contrast, the permissioned blockchain involves the “restoration” of a trusted third party, but this does not seem to be limiting as regards its potential applications. indeed, while retaining all the advantages of the public variant in terms of cost reduction, greater efficiency and traceability of information, it ensures the non-integral replacement of the human factor in the governance of the blockchain system and appears to be more controllable by the public authorities13. from what has been said so far, it clearly emerges that the two different types of blockchains outline antithetical network governance models: while permissioned blockchains configure an authoritarian and totally centralized system, the permissionless variant implies a “democratic” and decentralized one. permissioned blockchains, therefore, outline a rigid governance structure – in which the “freedoms” of the participants are limited by compliance with stringent internal rules – decidedly far from the flexible model of public blockchains, in which each user can assume the privilege and the burden of being an active part of the whole system (sarzana di sant’ippolito & nicotra 2018: 23). furthermore, the permissioned variant ensures a quick and relatively simple customization of the validation procedures: if this is the will of the entity that establishes the blockchain, it could also guarantee that the subject in charge of the validation process of the new data is invested with certain qualities. in this way, the validator could carry out a substantial control of the data. adopting a private blockchain, therefore, could solve two of the main problems of distributed consensus cryptographic mechanisms: a) the total irrelevance of the 13 in this sense, italian notaries have shown their interest for the permissioned blockchain while keeping their distance from the permissionless blockchain. indeed, blockchain technology could be used as a tool for the transfer processes in the real rights of real estates and, at the same time, could ensure a link with the legal system. for example, in 2017 the italian national council of notaries launched notarchain, a project on a permissioned blockchain, based on “a closed structure where the validation is reserved to a restricted core group of knots particularly qualified”. through this digital platform it will be possible to transfer, record and archive goods and rights, with a significant reduction in costs and times. notarchain will also provide a high level of safety: a) all information and transactions can be handled directly by notaries and not by anonymous subjects; b) the data cannot be modified arbitrarily by all nodes; c) notaries can check the identity of all users; d) the content of the register can be singled out and shared by notaries only; e) notaries can examine and certify the will of the parties and their capacity to act. see damiani 2020: 229 ff. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 7 subjective qualities of the validator node, whose specific skills are not considered at all in the public variant; and b) the prejudice that the formal and automated control of the algorithms is a “neutral” procedure and free from the errors and temptations of the human operator. in permissionless blockchains, validator nodes are not necessarily equipped with specific it or legal skills to carry out the processes of data validation and verification. validators will impose themselves on the basis of computational power (in the case of proof of work) or will be randomly selected by an algorithm based on the coin-age (in the case of proof of stake)14. the most common validation procedures in permissionless blockchains do not imply an analytical control of data, but rather quick checks of their it compliance. legally incorrect or illegal contents could thus enter the blockchain due to the consistency and correctness of their it appearance15. the permissioned variant, on the contrary, could offer greater guarantees on this point. the central entity could attribute the qualification of validator node only to subjects who are endowed with specific skills or who already hold a certain public role. furthermore, the validation process could be filled with legal content by the same entity that established the blockchain, which could require compliance with specific legal rules and institutes of the off-chain world. therefore, permissioned blockchain can also potentially fit more easily into existing legal and regulatory frameworks and institutional arrangements. it also ensures greater control of network users (bitfury group & garzik 2015: 4-5). in fact, their reading and writing powers could be limited and they could be prevented from altering the correct functioning of the blockchain from within. a final aspect that must be taken into account concerns the incompatibility of the permissionless blockchain with the principles expressed by regulation (eu) 2016/679 (henceforth gdpr) (giordano 2019: 99-102) in all those cases in which personal data are recorded or processed in the chain16. due to its technical characteristics, the public variant prevents the rectification17 and erasure18 of personal data19. 14 proof of work and proof of stake are the most common consensus mechanisms, but they are not the only ones employed in the world of blockchains. for a description of their technical functioning and for an analysis of the other cryptographic consensus mechanisms see: kwon 2014: 1 ff.; yang et al. 2019: 118541 ff.; marchionni 2018: 6 ff. 15 the main “achilles heel” of permissionless blockchains concerns their inability to ensure the truthfulness and correctness of the data recorded in them: if at the time of entry into the ledger a datum turns out to be qualitatively incorrect, the chain will only ensure its archiving, integrity and non-alterability. see brunelli & gasparri 2022: 64. 16 see article 4 of the gdpr. 17 see article 16 of the gdpr. 18 see article 17 of the gdpr. 19 see commision nationale informatique & libertés 2018: 10; finck 2019: 7 ff. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 8 even if there is a fork20, personal data would still remain stored in the ledger, thus inexorably entering into conflict with the rights to erasure and rectification sanctioned by the gdpr. the widespread and distributed nature of public blockchains prevents the identification of the data controller or processor (berberich & steiner 2016: 424 ff.; giordano 2019: 103-104) and hinders – or makes extremely difficult – the correct exercise of the right of access by the data subject21. the incompatibility with the gdpr, however, could be mitigated or even disappear if a private blockchain is adopted. the permissioned variant, in fact, would make it possible to identify a person responsible in the event of a chain malfunction (giaccaglia 2019: 951) and to distinguish within it the figures of the data controller, the data processor and the data subject, as defined by the gdpr. 4. daos: disruptive revolution or new freedom paradigm? 4.1. main features of a new organizational model the potential of blockchain manifests its revolutionary scope with reference to the phenomenon of daos22 which constitute the last frontier in the application of blockchain technology. the automatisms deriving from the use of smart contracts written into a blockchain platform promise to encourage the diffusion of new organizational models for the exercise of a business activity, alternatives to traditional “analogue companies” (piselli 2019: 377; fenwick, kaal & vermeulen 2019: 75 ff.). these are entirely virtual organizations23 without legal personhood (werbach 2018: 493-494; garcía mandaloniz 2020a: 7 ff.), characterized by a horizontal structure 20 forks arise when the blockchain splits into two competing chains. in some cases, the division of the main chain can fix itself spontaneously, while in others the new chain has an it code that is incompatible with that of the previous chain. in this case, the new chain operates on the basis of new rules. it is usually possible to distinguish: a) soft fork, which “is backward-compatible, meaning that the blocks mined by nodes using upgraded software are considered valid by nodes that have not upgraded their software, but the reverse does not hold true: blocks mined by non-upgraded nodes are not valid to upgraded nodes”; b) hard fork, conversely, occurs when the new it code is not compatible with the previous one. this implies that “the software upgrade has introduced a new rule which is not considered valid until a node upgrades. in this case, if members of the community of nodes do not agree with the new rules, they can choose not to upgrade to the new consensus and instead continue trading on the original (pre-fork) blockchain using the old software”. see krause, natarajan & gradstein 2017: 19; kaal 2021: 11-12. 21 see article 15 of the gdpr. 22 sometimes also known as decentralized autonomous corporation (dac). it must be noted that there is no univocal and generally recognized terminological classification that makes it possible to clearly distinguish the various systems that integrate smart contracts into a blockchain infrastructure. the terms “dao”, “dac”, “da” (decentralized agent), although presupposing the same basic technology and performing the same functions, thus end up differentiating themselves on the basis of the reference context. see: johnston et al. 2014; buterin 2014; kaal 2020: 6-7; wright 2021: 156-158. 23 see mondoh et al. 2022: 1 ff.; chohan 2022: 6. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 9 and open to entry (and to exit) of members of a community who have common speculative interests. by analysing their functioning, it is possible to distinguish between “algorithmic daos” and “participatory daos” (wright 2021: 156-158). algorithmic daos constitute completely autonomous “digital organisations”, since smart contracts are programmed directly by an ai algorithm (garcía mandaloniz 2020b: 312 ff.) and recognize only members’ economic rights or other benefits. the participatory daos, which can also be used for lucrative activities, are essentially dos (“decentralized organizations”), since, despite automatisms in the executive phase, in the planning and decision-making phases, they are never entirely automated, but still require human intervention. apart from definitional difficulties, there are doubts about the possibility and convenience of juridically framing them in existing corporate models24. the daos have set up a first concrete attempt to automate the administrative body (abriani & schneider 2020: 1363; abriani 2022b: 747) and have configured a radically new (antonacchio 2022: 3755; mienert 2022: 4) organizational model – in some ways also antithetical – compared to what is traditionally understood by a company. thus, daos outline a new corporate model (werbach & cornell 2017: 337; navarro lérida 2018: 2-3), destined to operate in automatic markets and create a new kind of economic order (werbach 2018: 492-494; swan 2015: 22-23, 26). the idea behind the daos is to conceive the governance of the digital company of the future as a community-driven governance25. having abandoned the traditional separation between the functions of the corporate bodies, the daos simply transfer all the powers of the administrative and control bodies to the investors and promise to establish horizontal governance (the so-called “flat governance”)26, eliminating – through the use of technological support – all risks of censorship, fraud or third-party interference (de filippi & wright 2018: 101). structurally, they are based on a predetermined set of rules included in the it protocol and operate through the use of the permissionless blockchain technology associated with the smart contracts27, whose codes are programmed to automate the management function. 24 see zetzsche, buckley & arner 2018: 1400-1401; gitti 2020: 33-34; metjahic 2018: 1533 ff.; menéndez arias, rodríguez garcía & alcaide soler 2018: 505 ff. 25 see fenwick, mccahery & vermeulen 2019: 187-189; fenwick & vermeulen 2018: 19 ff. 26 see fenwick, kaal & vermeulen 2019: 76-82, 116-120; fenwick, mccahery & vermeulen 2019: 187 ff. 27 see swan 2015: 24-25; buterin 2014; rigazio 2021: 378; chohan 2022: 5. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 10 the main advantages of daos, therefore, are – at least in the intentions of the developers – the reduction of costs, the greater transparency of decisions and the drastic reduction of corruption (sicignano 2021: 1271 ff.) and opaque behaviours. 4.2. towards a new e-democracy? all participants are thus ideally placed on the same level, since together they are called to decide on investment proposals, having the same information at their disposal, due to the transparency of transactions ensured by the blockchain infrastructure. the daos promise, then, to solve the problem of distrust which – according to the developers – unites the participants in traditional corporate forms. a distrust that originates: a) from the fact that company law rules are often not correctly observed nor correctly interpreted; b) from frequent episodes of mismanagement by the administrative body, which often take the form of real frauds; c) from the irrelevance of small investors, who cannot participate actively and significantly in corporate decisions. conversely, members of a dao would be able to maintain direct real-time control of the funds conferred (fenwick, kaal & vermeulen 2019: 118) and would be reassured of the correct application of the rules by the simple fact that, in this, human arbitrariness would be replaced by the infallible and mechanical efficiency of machines28. indeed, the entire dao project is based on a libertarian ideal, which has as its ultimate goals to create a new form of governance based on automation and to achieve an e-democracy29, thus freeing the business and investment activities from any form of “tyranny” and “oppression”. more precisely, the fortune of the daos can be ascribed to the willingness of investors, on the one hand, to escape from state control that is considered excessively pervasive (möslein 2020: 243) and, on the other, to eliminate the dynamics of power and control which, within traditional companies, compromise the autonomy and free will of small investors30. furthermore, the peer-to-peer network should establish cooperation between equals, eliminating the inequalities among investors (werbach 2018: 491). in this sense, the horizontal and distributed management of daos should counter the onset of opaque and opportunistic behaviour (davidson, de filippi & potts 2018: 639 ff.) and ensure real and active participation of investors (abriani & schneider 2020: 1363), endowed with pervasive powers of direct and real-time control over all investment decisions. hence, at least in theory, daos should reduce the direct and indirect costs of business activity, broadening the organization's objectives far beyond the mere maximization of 28 see jentzsch 2016a: 1. 29 see jentzsch 2016b. 30 see vermeulen 2018; fenwick & vermeulen 2018: 9-10; chohan 2022: 5, 8. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 11 profit (world economic forum 2022: 6) and, most importantly, remove any obstacle to the realization of freedom to conduct a business. daos are also one of the clearest manifestations of the “code is law” principle, theorized by lessig31. they are, consequently, completely impervious to the positive discipline of company law32: their functioning and their internal33 and external34 relationships are regulated exclusively on the basis of the rules incorporated in the it protocol of the system and depend solely on how smart contracts have been programmed. daos constitute a new digital and supra-national corporate model, able to free itself from the tax impositions of individual states and overcome the fragmentation of jurisdictions (swan 2015: 24-25). national rules thus become completely irrelevant, since the discipline of the individual organizations must be identified exclusively within the system’s programming code. the daos constitute decentralised systems that are completely independent of the states. their members are geographically distant from each other and they can cooperate from all over the world. they act in the way determined in permissionless blockchain’s protocols. in doing so, they observe a set of spontaneously elaborated it rules which are very far from the formalism of positive law. this challenges the very concept of state sovereignty35 and territoriality (baktygul 2023: 7) and often makes it impossible to determine the applicable law under the private international law principles. from the point of view of the structure, daos are characterized by an extreme organizational simplicity (piselli 2019: 377-379): the participants pay a certain amount of cryptocurrency to the organization's wallet, i.e. to the address of the dao’s smart contract (the so-called “treasury's account”) and receive in return a certain number of tokens (gitti 2020: 14-16; fenwick, mccahery & vermeulen 2019: 189), i.e. tools for participating in the organization's activities (abriani & schneider 2020: 1335). the token subscription attributes the status of a member of the dao (wright 2021: 156; rohr & wright 2019: 479) and confers, basically in proportion to the paid-up capital (jentzsch 2016a: 2), a series of economic and administrative rights, which the members will be able to exercise within the same it platform (antonacchio 2022: 3755; nielsen 2019: 1108-1109; wright 2021: 158). therefore, once the tokens have been paid, all token holders, in a regime of direct and participatory democracy (world economic forum 2022: 4), acquire the right to 31 see lessig 1999: 3 ff.; lessig 2006: 3; lessig 2000. 32 see thompson 2016. 33 between participants and between participants and the organization. 34 between the organization and third parties. 35 see baktygul 2023: 7. the author notes that “it is clear that the domestic/national law is no longer applicable to the blockchain, it simply cannot enforce itself over the technology. it may be ironical to point out that for decades the international law was balancing between the law enforcement and the sovereign will, and now, this is no longer existing question, as the blockchain nullifies the concern of the state will”. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 12 express their opinion and to directly discuss the various proposals in special messaging platforms – usually outside the blockchain infrastructure36 – as well as the right to vote and to submit investment proposals (gitti 2020: 33-34) which will be selected and voted by the majority of the other token holders. if the quorum is reached, the approved proposals are then translated into computer code to become the object of a specific smart contract, which executes when the preestablished conditions occur. the dao will transfer part of the resources to a separate fund, linked to this specific smart contract, which, self-executing, will use these resources to carry out the approved operation. 4.3. some legal issues of daos however, daos outline legal issues, which place the phenomenon in open antithesis to the fundamental principles of “analogue” company law (fenwick, mccahery & vermeulen 2019: 172 ff.) and expose to great dangers both the members of the organization and third parties who come – directly or indirectly – in contact with the daos. the main legal problems derive from the fact that the computer codes are not subjected to any form of control by public authorities with adequate legal or it skills37. in the event of discrepancies between it rules and the informative slogans contained in white papers38, the latters will be destined to remain a dead letter. 36 see picciau 2021: 114 ff.; abriani & schneider 2020: 1363-1364. 37 there can also be an internal legal team which might revise the code and make sure that it complies with certain ethical or legal standards. this is undoubtedly true for permissioned blockchains, in which a central entity can constantly monitor the creation and the development of it protocols. this could also make the permissionless blockchain infrastructure compliant with national legislations. however, it should not be ignored that: a) programming experts and computer scientists who originally defined the technical-it design of a permissionless blockchain may partially or completely lose their influence over further functioning and development of the project. thus, it can happen that the token holders directly and profoundly modify the basic governance structure of the dao, creating in this way new rules, which may also be non-compliant with national laws. also the coalition of automated legal applications argues that “blockchain developers, like most open source developers […] do not have control over the ways in which their code, once written, is used or modified, nor can they usually impose a particular code change onto the users of the software once released”; b) often core developers are anonymous in order to avoid responsibilities; c) “usually, a dao has no seat, no board, no central point of government and no place of operation relating to the territory of one state” (the european union blockchain observatory and forum 2019: 29). this causes great legal problems and, even if developers comply with the law of one state, they may violate the law of other states; d) it has been correctly observed that often decentralized communities of permissionless blockchains have no wish “to register, in any state, as a business entity and to comply with the chosen legal system” (the european union blockchain observatory and forum 2019: 30). see kaal 2021: 4 ff.; bellavitis et al. 2023: 9; coalition of automated legal applications 2021: 40. 38 the white paper is a document which is released in order to provide potential investors with a basic set of information on the project and rights embedded in the tokens (annunziata 2019: 9). however, it frequently happens that this document does not contain any information that is really useful for investors. this often attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 13 as already mentioned, daos have their own assets, separate from those of their members. however, the perfect capital freedom does not derive in this case from an express legislative provision, but rather from the programming rules of the system and cryptographic mechanisms. the liability regime limited to the contribution made is de facto39, since it is impossible for the creditors of the dao to attack personal assets of the members due to the latters’ anonymity (kaal & calcaterra 2018: 134-135, 141; garcía mandaloniz 2020a: 6 ff.). members appear as simple addresses. this situation exposes dao’s creditors to serious financial prejudice. furthermore, the daos determine the total removal of the administrative and control bodies. the absence of the administrative body deprives these digital organizations of highly qualified subjects to carry out the usual management operations and of the body itself which is physiologically identified as responsible for assessing the convenience of using digital tools, their regulation within the corporate structure as well as their supervision and maintenance. from this, it follows that within the daos there is no person in charge of: implementing those essential analyses of the risks associated with the use of digital tools; weighing the cost/benefit ratio; assuming liability for a use not suited to the corporate purpose and to the size and the nature of the organization. the peculiar combination of dlt with smart contracts and the anonymity that characterizes permissionless blockchains make it very difficult – if not completely impossible – to identify the members of the community (rampone 2018: 460) and prevent the identification of a person liable for the hypotheses of mismanagement, for illegal operations and for activities to the detriment of users or third parties. except for the cases – albeit rather rare – in which the activity of the daos is attributable to a legal person (for example to a traditional company registered in a national register), their evanescent nature, the absence of physical headquarters and directors (bechini 2022: 507) make it particularly difficult to determine the national law applicable to daos40 and the operations of locating the registered offices (fenwick, kaal & vermeulen 2019: 118). the absence of a defined legal framework and the need to involve the entire community to change the rules of the it protocol raise further problems. contains only emphatic sentences, which are devoid of any practical use: indeed, these sentences describe neither the governance rules of the dao nor its technical characteristics. therefore, i share the observation according to which white papers, although they give an overview of the planned project, “typically do not provide the same standard and detail of information as in securities prospectuses, regarding structure, comparability and informational significance and are often even confusing” (oicv-iosco 2020: 10). for these reasons, it can be concluded that the dao white paper may not be the right tool to provide all the information useful for the token holders (casarrubea 2022: 227). 39 see menéndez arias, rodríguez garcía & alcaide soler 2018: 528 ff. 40 see mienert 2022: 82 ff., 96 ff.; spindler 2019: 144 ff.; garcía mandaloniz 2020b: 196-197; garcía mandaloniz 2020a: 8 ff. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 14 in the event of programming defects, error situations or hacking attempts and in the absence of rules protecting the rights of small token holders, very serious dangers arise: it seems difficult to believe that, in these cases, the vast majority of participants, who benefit from the rules of the system, would be interested in modifying them for the good of a few individuals. the malfunction or the wrong suffered by the individual investor could remain without protection to the advantage of the well-being of the majority of the participants, who, being in a favourable condition, will have no interest in altering the status quo within the organization. from what has been said, it can easily be deduced that in the absence of a real legal framework of rules and principles that cannot be changed by parties, the “justice” within the dao could turn (bechini 2022: 507-508) into a totally arbitrary system, governed by selfish logic and inspired by mechanisms that are at the same time populist and plutocratic. the subjects who, from time to time, come to constitute the minority within the organization could be deprived of any right or guarantee and their requests could thus be completely ignored. furthermore, daos do not seem to have solved the problem of majority abuses. within these organizations this can take on a double meaning: on the one hand, the monopoly in the choice of investment proposals and, on the other, the power to modify the governance rules and the it protocol of the entire organization (nielsen 2019: 11101111; buterin 2013). so, even within these organizations, not all crypto-asset subscribers are really equal to each other and, consequently, control positions remain, since most of the tokens issued are actually attributable to a small number of participants (world economic forum 2022: 7-8). technological algocracy thus assumes the features of real despotism (chohan 2022: 13): the large token holders, in fact, not only assume the powers of the directors of listed companies (hacker 2019: 148-153; piselli 2019: 388-389), but they also obtain the power to condere legem, since they are able to modify the rules of the game and restore a hierarchical logic within the organization. the problem of the abuses of the majority, therefore, would seem to be even more amplified. finally, it should be noted that daos do not ensure the effective participation of the members in the management of the organization: only a small part of token holders play a managerial role in a continuous and significant way41. there does not appear to be a direct link between the adoption of this organizational model and the enhancement of the participation of members, but neither is there any concrete data demonstrating that this particular application of blockchain technology can encourage the participation of members in the life of the organization, and thus constitute 41 see lund 2022. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 15 a useful tool for counteracting the phenomenon of shareholder passivity (piselli 2019: 382; emmett 2019; faqir-rhazoui, arroyo & hassan 2021: 12 ff.; world economic forum 2022: 8). on the contrary, most token holders do not have a real influence in governance choices and deem it entirely rational and convenient not to exercise their voting rights at all. an even more discouraging scenario emerges. considering the members’ lack of interest in the organization’s life and an attitude aimed at maximizing profit in the short term, the subjects intending to get their proposal approved could buy the votes of a large number of token holders for a completely negligible sum (so-called “bribe attack”)42; this could be done by directing their votes through blogs and thus vitiating the entire deliberative process. moreover, the problem of the token holders' low participation in the life of daos is well known by the developers of these virtual organizations, who, in an attempt to stem the apathy of the members and protect minorities, have already begun to introduce reward mechanisms to stimulate their participation (wright 2021: 165-166). once again, however, one cannot avoid noting that these solutions – or at least those that simply reward members with any utility as remuneration for their participation – could make voting random and deprive investors of liability, especially considering the ease with which it is possible to vote in the daos. the exercise of the voting right, in other words, could be conceived exclusively as a fulfilment necessary to obtain a profit43. lastly, the absence of any form of control or – more specifically – the absence of any form of legality control by a public authority could make a dao the ideal environment for carrying out criminal activities: the choice of investment proposals would be oriented on the basis of purely lucrative criteria and, possibly, compliance with the organization's it protocol. an investment proposal, which on paper is compliant with it codes and reasonably profitable, could thus be selected and voted on even where it conceals illegal purposes such as, for example, money laundering or terrorist financing44. therefore, these new organizational models could jeopardize the current regulatory framework by generating subversive phenomena and are potentially suitable for distorting the very concept of a state company. furthermore, the daos, at least at the current state of technological development, do not seem to offer adequate guarantees either for their 42 see buterin 2017; garcía mandaloniz 2020b: 298 ff. 43 alternative voting mechanisms have also been introduced (e.g. “conviction voting” and “quadratic voting”). these new voting mechanisms try to solve the problems arising from the one-token-one-vote design, such as the passivity of token holders, risks concentrating voting power in the hands of a few large token holders, and abuses perpetrated by majorities against minorities. however, due to the anonymity of the token holders and the duplication of digital identities, their effectiveness seems to be decidedly limited. see emmett 2019; thorstensson 2021; siri 2020; faqir-rhazoui, arroyo & hassan 2021: 6 ff.; kaal 2021: 18 ff.; bellavitis et al. 2021: 4 ff. 44 see damiani 2020: 234; kaal 2020: 21; marchegiani 2022: 114 ff.; garcía mandaloniz 2020b: 198-200. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 16 members or for third parties who come into contact with them and could constitute a danger to the freedom to conduct a business. the above demonstrates that the blockchain is in itself an inert tool, but if associated with other technologies – in particular with smart contracts and oracles (werbach & cornell 2017: 336; möslein 2020: 242) – it can give rise to “autonomous agents” (wright 2021: 153,169), i.e. independent and autonomous organizational infrastructures, suitable for totally excluding the relevance of the human contribution in all or certain phases of the organization’s life (petrin 2019: 969-970, 996-997, 1022-1025; lener & furnari 2021: 4-5). 5. blockchain as a tool at the service of shareholders 5.1. the current intermediated shareholder engagement system and its related problems due to its intrinsic characteristics, permissioned blockchain offers interesting scenarios if applied as a tool within the corporate structure. we will now try to investigate the potential impact that the application of the blockchain could have on listed companies (palá laguna 2021: 130 ff.; peinado gracia 2021: 108-110; farias battle & pérez bastida 2021: 77 ff.). indeed, the blockchain’s promise is not only to facilitate the exercise of shareholders' rights by simplifying it, eliminating some inefficiencies and reducing costs (van der elst & lafarre 2019: 125-127), but also to revitalize the very conduct of the shareholders’ meeting (allotti & spatola 2022: 38; abriani 2022a: 95). such an application seems particularly suitable for large companies that present a more articulated, geographically distributed corporate structure, characterized by a plethora of distinct interests and, very frequently, by a widespread apathy of a significant part of their members, who are totally disinterested in the fate of the company and do not participate in its life (cantisani 2019: 421; van der elst & lafarre 2017b: 4-11). at present, the process of shareholder engagement and the exercise of shareholder rights imply the involvement of a long chain of intermediaries45, which sees the participation of a varied series of subjects: central securities depositories and other intermediaries (investment firms, credit institutions, brokers, etc.). therefore, it is very common for end investors to have no direct relationship with issuers and, sometimes, precisely because of the complex articulation of the chain, not even with the csds. this situation causes very serious negative repercussions (panisi, buckley & arner 2019: 204-206): high costs, the possibility of incurring errors in counting the votes, technical difficulties in verifying the legitimacy46, the concrete impossibility for the end 45 see article 1 of the directive (eu) 2017/828; lafarre & van der elst 2021: 33-35. 46 see recital 9 of the commission implementing regulation (eu) 2018/1212. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 17 investors to exercise their rights, the issues related to the transmission of the proxy vote (micheler 2015: 506 ff.), the possibility that information is not correctly transmitted between the company and the shareholders47, inaccuracies in the voting lists, information asymmetries48, empty voting49 and decoupling50. it will then often be very difficult even just to distinguish who is the final investor and who, on the other hand, is the intermediary and, consequently, it may happen that the subject registered in the shareholders' register does not coincide with the beneficial owner of the economic and administrative rights related to shares (van der elst & lafarre 2018: 2-4; gargantini 2021: 42 ff.). the end investors, having purchased their shares through financial intermediaries, will thus not be able to exercise their rights directly towards the company: it will be the intermediaries who will be formally registered as shareholders in the company's register of shareholders and, consequently, they will be able to directly exercise the rights of the shareholders (portellano díez 2021: 186-188; panisi, buckley & arner, 2019: 196 ff.). conversely, the end investors will be able to exercise the rights incorporated in the shares only by contacting an intermediary51. furthermore, remote voting practices introduce further problems: the expression of the vote electronically by some shareholders before the shareholders’ meeting, on the one hand, generates information asymmetries – since the outcome of the vote could be disclosed in advance to some subjects of the intermediation chain (van der elst & lafarre 2019: 122) – and, on the other hand, in the event of a subsequent change in the object of the vote during the course of the shareholders’ meeting, it could completely frustrate the intentions of those who had previously exercised it (matera 2018: 7; van der elst & lafarre 2019: 122 ff.). to what has been said it must be added that large shareholders often enjoy direct communication channels as they are able to converse with the top management of the company outside of the shareholders’ meeting. this gives them priority over the small shareholders who do not have the same option (matera 2018: 7-8; strampelli 2018: 393-397). the shareholders' meeting is thus stripped of its traditional functions as a place for discussion and confrontation among shareholders and it is no longer the place where decisions are taken. the moment of the shareholders' meeting, consequently, is reduced, most of the time, to a mere matter of form (van der elst & lafarre 2017b: 3-4). this situation inevitably leads to an aggravation of the apathy of small shareholders52 who rationally choose to withdraw from it, renouncing active participation as they are 47 see recital 8 of the directive (eu) 2017/828. 48 see comitato blockchain per la corporate governance 2022: 9. 49 see yermack 2017: 24; cantisani 2019: 423. 50 see panisi, buckley & arner 2019: 205. 51 see micheler 2015: 507; díaz moreno 2017: 3-4. 52 see van der elst & lafarre 2017a: 172; lafarre & van der elst 2021: 30 ff. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 18 aware that their vote could remain unexpressed in the various steps of the intermediaries’ chain and, in any case, that they cannot exercise real control over the company or that they will have a very limited impact on the formation of the will of the shareholders’ meeting (garcía mandaloniz 2020b: 236 ff.; van der elst & lafarre 2017b: 7). 5.2. advantages of adopting the permissioned blockchain the use of permissioned blockchain (van der elst & lafarre 2019: 126 ff.) could allow companies to identify shareholders53 directly and in real-time and, therefore, to identify the end investors in a simple and immediate way, bypassing the complex communications that currently exist between the applicant company and the intermediaries (möslein 2020: 239-241; cantisani 2019: 422), and would make it possible to constantly report on the updating of the composition of the corporate structure and of the shareholders' register. the distributed ledger would then guarantee the automation of communications with a guarantee of the origin of the information and would consequently ensure a clear reduction in transmission errors: due to the traceability and transparency of its records, all the steps would be instantly visible and unalterable. furthermore, it will be enough to simply view the ledger and all shares will be immediately traceable (geis 2018: 254 ff.). this use of blockchain technology seems potentially suitable for substantially fulfilling the provisions of the shareholder rights directive ii54 and of the commission implementing regulation (eu) 2018/121255, with which the european legislator hoped for a greater long-term shareholder engagement, a simplification and rationalization of the procedures aimed at their identification56, a better transmission of information along the chain of intermediaries57, as well as a facilitation of the exercise of voting rights. moreover, the commission implementing regulation at recital 4 encourages “the use of modern technologies in communication between issuers and their shareholders and by intermediaries”58 and would seem to pave the way for the use of blockchain technology. due to its very characteristics, a permissioned blockchain ideally lends itself to fulfilling the three fundamental goals of shrd ii, namely the identification of shareholders, the transmission of information and the facilitation of the exercise of shareholders' rights59, thus overcoming (at least partly) the problems generated by long chains of intermediaries. 53 see recital 4 of the directive (eu) 2017/828; spindler 2019: 142 ff.; palá laguna 2021: 138-140. 54 directive (eu) 2017/828 of the european parliament and of the council of 17 may 2017 amending directive 2007/36/ec as regards the encouragement of long-term shareholder engagement. 55 commission implementing regulation (eu) 2018/1212 of 3 september 2018 laying down minimum requirements implementing the provisions of directive 2007/36/ec of the european parliament and of the council as regards shareholder identification, the transmission of information and the facilitation of the exercise of shareholders rights. 56 see article 3 of the directive (eu) 2017/828. 57 see article 3b of the directive (eu) 2017/828. 58 see recitals 3 and 4 of the commission implementing regulation (eu) 2018/1212. 59 see articles 3a, 3b and 3c of the directive (eu) 2017/828; van der elst & lafarre 2017b: 2-3. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 19 indeed, access to the blockchain would be subject to prior authorization by the administrator nodes and, consequently, the right of companies to identify their shareholders could be directly and immediately satisfied60, thus contributing significantly to the fight against the anonymity of shareholders which is currently generated both by the size of the corporate structure and by the intermediated shareholder engagement system (peinado gracia 2021: 109). this is of fundamental importance and the directive itself considers the identification of shareholders “a prerequisite to direct communication between the shareholders and the company and […] essential to facilitating the exercise of shareholder rights (möslein 2020: 239-241) and shareholder engagement”61. the obligation – enshrined in the second and third paragraphs of the art. 3a of the directive – for intermediaries to promptly communicate to the company the information regarding the identity of the shareholders would be satisfied. similarly, the provision of article 5 of the commission implementing regulation would be satisfied. article 5 introduces the obligation towards the last intermediary to confirm, upon specific request, “to the shareholder or third party nominated by the shareholder, the entitled position appearing in its records”, or to ensure, in the presence of several intermediaries in the chain, “that the entitled positions in its records are reconciled with those of the first intermediary”. this obligation could be fulfilled through blockchain technology. precisely because of the continuous control that the administrator nodes can exercise over the user nodes, it would also be possible to ascertain the legitimacy to participate and vote in the shareholders’ meeting. the entry of new members into the company could be constantly monitored and their registration in the shareholders' register could be fully automated. even for them, access to the blockchain and the possibility of exercising the rights incorporated in the tokens would equally be subject to the authorization of the administrator nodes (comitato blockchain per la corporate governance 2022: 11). in a blockchain context characterized by transparency and continuous control by highly qualified subjects, empty voting does not seem easily feasible, since any separation between the voting power and the real economic risk associated with the ownership of the share, although not perceivable by the other shareholders, would be immediately visible to the administrator nodes (e.g. supervisory authority and company management)62, who will be able to promptly intervene to remedy it (yermack 2017: 24). the ambiguities and alterations that can invalidate the correct formation of the will of the shareholders could be avoided. a blockchain of this type, therefore, ensures that a sort of panopticon is recreated in a purely digital context. in this way, a few highly 60 see recital 5 of the commission implementing regulation (eu) 2018/1212; palá laguna 2021: 143-144; comitato blockchain per la corporate governance 2022: 13. 61 see recital 4 of the directive (eu) 2017/828. 62 see lafarre & van der elst 2021: 46 ff. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 20 qualified nodes (administrator nodes) can constantly observe the behaviour of user nodes, which, in turn, will at least be discouraged from engaging in opaque or illegal behaviour, knowing that they are being observed and that their activities will be traced. at the same time, the privacy of voters would be preserved and their voting intentions and identities could well remain hidden from all other user nodes (peinado gracia & bednarz 2021: 135 ff.)63. a digital platform based on a permissioned blockchain 2.0, through the tokenization of shares, would allow shareholders to exercise their rights – both patrimonial and administrative (informal company law expert group 2016: 25) – directly within the network. this solution would legitimize the token holder to participate and exercise rights directly through the blockchain, but would not alter the nature of the shares, which would continue to circulate according to current regulations (bednarz 2020: 8 ff.). furthermore, such a technological infrastructure could ensure easier participation in the shareholders’ meeting and a simplification in the exercise of voting rights (van der elst & lafarre 2019: 130 ff.; fenwick & vermeulen 2018: 14; yermack 2017: 23; comitato blockchain per la corporate governance 2022: 16-17). by entrusting the shareholder with a number of vote tokens (piazza 2017: 292-294) proportional to his participation in the company, it would be possible, through smart contracts, to register his will directly in the ledger. thus, at the end of the voting period, the votes cast would be entered in a block and the result of the vote could not be modified subsequently. direct registration in the chain would prevent distorting the result of the vote or voting more than once, since it is not possible in the permissioned variant for user nodes to modify or rewrite the distributed ledger (comitato blockchain per la corporate governance 2022: 16-17). in this way, the technological support would not only ensure a clear reduction in terms of costs and time both for shareholders and the company, but also a highly secure infrastructure for carrying out the voting process (van der elst & lafarre 2017b: 16 ff.). the possibility of custom-programming the reading powers of the user nodes and letting them view only certain contents would allow the voter to be certain that the vote had been correctly taken into account64 and to verify the vote cast in an instantaneous and completely transparent way. the use of automatic calculation systems would then ensure the resolution of the burdensome problem of counting the votes (matera 2018: 15; palá laguna 2021: 145 ff.; spindler 2019: 143-144). 63 the permissioned blockchain could safeguard the privacy of the shareholders and prevent the acquisition of their personal or confidential data by third parties: the user nodes cannot view the entire copy of the register and nor can they have access to the votes and personal information of the other shareholders. see article 3a of the directive (eu) 828/2017. 64 see recital 10 of the directive (eu) 2017/828. attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 21 the greater flexibility ensured by the permissioned blockchain would – in accordance with the provisions of the gdpr – also allow the permissioner to verify in advance the correctness of the data65, to modify, if necessary, incomplete or inaccurate information regarding the identity of the shareholders66 or, if where appropriate, to definitively eliminate them from the ledger, thus overcoming the critical issues that part of the doctrine had correctly attributed to the permissionless variant (finck 2019: 101 ff.). this is particularly important because one of the ways in which freedom to conduct a business can really be achieved concerns the possibility for all shareholders – as owners of the company – to correctly express their will and the need for this to be fully taken into account during the company life cycle. such a digital platform could constitute a truly democratic space for meetings and discussions between shareholders and directors (van der elst & lafarre 2019: 123-129). there are two possible ways it could be used: the first would imply carrying out the entire shareholders’ meeting with the aid of blockchain technology alone, while the second would imply its use as a support to other means of telecommunication. the first solution has serious technical and legal limitations. from a purely it point of view, the idea of translating the text messages representing all the communications that took place during the shareholders' meeting seems questionable. this could in fact overload the network. from a more strictly juridical point of view, such a solution could excessively dematerialise and, therefore, completely frustrate the moment of the meeting discussion (portellano díez 2021: 189 ff.). to overcome these problems, it would be appropriate to use the blockchain in the background, holding the shareholders' meeting using traditional audio-visual means of communication. thus, while the latter would ensure active participation in the shareholders' meeting debate, the blockchain would guarantee a valid and secure aid for the identification of shareholders, for the transmission of all information relating to the shareholders’ meeting, for carrying out voting operations and, more generally, for the recording of the discussions among the participants. these communications, in order not to overload the blockchain, could be stored off-chain and inserted into the chain in the form of simple cryptographic hashes. this second solution would also make it possible to completely avoid the technical problems that sometimes afflict traditional audio-visual means of telecommunication: think, for example, of deep fakes67, which could easily alter the correct formation of the will of the shareholders’ meeting68. in this sense, a blockchain could stimulate the engagement of all shareholders and, at the same time, keep track of the questions and requests formulated as well as the answers provided by the directors (van der elst & lafarre 2019: 128). 65 see recital 12 of the commission implementing regulation (eu) 2018/1212. 66 see article 3a (5) of the directive (eu) 2017/828. 67 see lener & furnari 2020: 45 ff. 68 see article 8 of the directive 2007/36/ec of the european parliament and of the council of 11 july 2007 on the exercise of certain rights of shareholders in listed companies. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 22 this could then lead to an increase in the speed of the exchange of communication and better access to corporate information, allowing shareholders to make more informed decisions. at the same time, the directors could be held liable if inconsistencies should emerge from the records crystallized in the ledger (piazza 2017: 288-292). all these benefits could –almost by osmosis – have a positive impact on the shareholders' meeting, which could requalify in more democratic terms and reinvigorate itself (peinado gracia 2021: 104). the use of this new technology promises to reduce the gap currently existing between small and large shareholders, mitigate the crisis of participation in corporate life and increase the participation of shareholders within the shareholder’s meeting, also stimulating the affectio societatis of minority shareholders. this technological revolution could reasonably trigger an internal revolution of the modus cogitandi and the modus agendi of the shareholders, who could rationally reevaluate the usefulness of their vote, and, consequently, abandon the idea that the expression of the vote and the exercise of the right to participate at the shareholders’ meeting are completely unprofitable for them. the adoption of a permissioned blockchain could thus, in a medium-long term perspective, counteract and mitigate the traditional apathy of the shareholders and their disinterest in active and direct participation in the life of the company (van der elst & lafarre 2017b: 24; comitato blockchain per la corporate governance 2022: 4), simply by making the exercise of their voting right less onerous and offering concrete guarantees that the will of shareholders will really be taken into consideration. therefore, the application of this innovative technology would make it possible to avoid all those apparently revolutionary solutions which, by establishing a regime of direct democracy and by “cutting off the head of directors”, inevitably lead to results that are antithetical to the initial expectations. on the other hand this technology can assume the features of a useful tool to give voice to the shareholders and, consequently, to give a more concrete implementation of the freedom to conduct a business. 6. conclusions and possible future implications of blockchain technology the present work has demonstrated the possibility of using a permissioned blockchain platform in listed companies and how this can be a potentially suitable tool to give a more concrete implementation of the provisions of the shareholder rights directive ii and concretize the freedom to conduct a business. through this technology, companies, by at least partially overcoming the problems deriving from long chains of intermediaries, could directly identify the shareholders and have real-time knowledge of the update of the composition of the corporate structure. furthermore, the blockchain could ensure a faster and more secure transmission of corporate information and, by exploiting the potential of tokens and smart contracts, facilitate the exercise of shareholder rights. it has been highlighted that, by avoiding tampering with and cancellation of the votes cast, the blockchain could not only certify the correct formation of the will within the shareholders' meeting, but also reduce the onset of opportunistic behaviour. finally, such a digital platform could “give a voice to attilio della pietra the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 23 the shareholders” and constitute a truly democratic space for meetings and discussions between them, thus mitigating the crisis of participation in company life and strengthening the role of minority shareholders. this article, however, has demonstrated the possibility – far from futuristic – of the emergence of new totally or partially autonomous entities which, by exploiting the potential of the synergistic use of permissionless blockchains, smart contracts and ai, are able to adopt their own rules and configure their own jurisdiction, placing themselves in open antithesis both to the traditional concept of company and state company law. it has been pointed out that the problems of daos do not only concern their legal qualification. most of the expectations that accompany the dao phenomenon are destined to remain a dead letter. a technological infrastructure of this type does not yet seem to be able to provide adequate guarantees for members and third parties who come into contact with daos. it has been shown that flat governance is not in any way a step forward in the management of the company but re-proposes and amplifies its typical defects. the idea of creating ad hoc a new type of entirely autonomous and virtual company on the model of the dao does not seem at all convincing. this new organisational model risks creating entities that would be potentially harmful to the freedom to conduct a business and their action can hardly be stopped by state legislators. in fact, the decentralized nature of these systems undermines the very concept of state sovereignty and unilateral and top-down approaches adopted on a national basis do not seem in the least effective, since dlts go beyond the borders of the states and spread via the network. this peculiar application of permissionless blockchain leads to a “new state of nature”69, inevitably dominated by the strongest subjects – because they have better it skills – and in fact restores a constant and dangerous situation of “bellum omnium contra omnes”, exposing token holders to the numerous pitfalls of the network: from the total absence of legal guarantees to the opportunistic behaviours of the new technological 69 a dao could turn into a highly dangerous environment characterized by a sort of “anarchy”, in the sense of “absence of government”. all members of the permissionless blockchain have unlimited powers, exactly as in hobbes’s doctrine of natural rights in which, in the state of nature, all individuals have unlimited rights (“ius in omnia”). this could lead to a war of every individual against every other individual (hobbes 1651: 79; baktygul 2023: 8). in the same way, a state of constant war could be generated between the members of a permissionless blockchain, which could lead to the prevalence of the most powerful nodes, as they have greater technological skills or greater computational power. even in the “new state of nature” created by blockchain technology “the notions of right and wrong, justice and injustice, have there no place” (bull 1981:722), just as the guarantees of positive law have no place in this digital dimension. in this sense, the adoption of a permissioned blockchain could be a logical and reasonable solution for counteracting opportunistic behavior and guaranteeing peace and security within the blockchain infrastructure. indeed, as mentioned earlier, the blockchain infrastructure may be threatened by external attacks or malfunctions and these problems could be solved by a centralized authority. in hobbes’s theory, individuals enter society and surrender this untrammeled liberty, by submitting themselves to the sovereign authority of the leviathan in return for protection. in the same way the members of a blockchain could deprive themselves of many of their powers by handing them over to a centralized and superior authority. this will ensure security within the network and prevent a constant war situation between nodes from occurring. blockchain and freedom to conduct a business: between myth and reality the age of human rights journal, 21 (december 2023), e7971 issn: 2340-9592 doi: 10.17561/tahrj.v21.7971 24 oligarchy, from the impossibility of identifying token holders to the extreme difficulty of asserting liability for the omissions and actions of members of the organization. the use of blockchain technology within companies is still in its early stages. however, albeit beyond the scope of this article, interesting application scenarios are expected, to which scholars of law and, more generally, experts of democratic processes in the broadest sense will have to pay attention to. indeed, a greater democratic decisionmaking process can be achieved through this technology, avoiding the inefficiencies that characterize dao’s on-chain governance70. already in the current state of technological development, permissioned blockchains make it possible not only to involve more actively the shareholders within the company, but also and more generally all the stakeholders who interact with it. through blockchain technology also individuals outside the company could interact, propose and vote in a democratic way. therefore, this technology could be used for better stakeholder engagement in corporate decision making (van der elst & lafarre 2023: 18 ff.) for faster and more efficient transmission of information from the company to relevant stakeholders. in particular, an it platform of this type could also guarantee the direct transmission of the proposals of all stakeholders to the board of directors and the general annual meeting. in this way, a company board could directly consult stakeholders on particularly important topics, such as esg issues. consequentially, innovative ideas of individuals who are not formally part of the company could be valorised, stimulating efficiency and innovativeness: not only directors and shareholders, but also the community as a whole could take part in the decisionmaking process, contributing in this way to achieving innovative goals and knowledgesharing, thus creating really sustainable and inclusive ecosystems. stakeholders could then verify in real time whether the company is actually pursuing esg goals, thanks to the transparency of the blockchain infrastructure. this could establish unprecedented forms of collaboration and community engagement. also, the democratic process outside the company could be strengthened, establishing a continuous dialogue and involving society on issues related to human rights, environmental sustainability and the impact of business strategies. funding this project has received funding from the european union's horizon 2020 research and 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(2017), “corporate governance and blockchains”, review of finance, vol. 21, issue 1, pp. 7-31. zetzsche, d. a., buckley, r. p. & arner, d. w. (2018), “the distributed liability of distributed ledgers: legal risks of blockchain”, university of illinois law review, vol. 2018, no. 4, pp. 1361-1407. received: 1st may 2023 accepted: 6th august 2023 blockchain and freedom to conduct a business: between myth and reality abstract 1. introduction 2. blockchain: nature and technical profiles 3. permissionless blockchain vs. permissioned blockchain 4. daos: disruptive revolution or new freedom paradigm? 4.1. main features of a new organizational model 4.2. towards a new e-democracy? 4.3. some legal issues of daos 5. blockchain as a tool at the service of shareholders 5.1. the current intermediated shareholder engagement system and its related problems 5.2. advantages of adopting the permissioned blockchain 6. conclusions and possible future implications of blockchain technology funding references unlocking justice: access to court and litigation costs under the european convention on human ri the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 1 unlocking justice: access to court and litigation costs under the european convention on human rights sanja djajić1 abstract: litigation costs constitute a standard human rights issue under the right of access to a court, as enshrined in article 6(1) of the european convention on human rights. this article provides a detailed overview of the factors and considerations that the european court of human rights examines in its proportionality analysis of litigation costs for civil rights claims, particularly those factors that may disrupt the balance between the right of access to a court and legitimate aims. these factors and considerations include excessive formalism in court fees, stamp duties, or security for costs that impose disproportionate financial burdens; unreasonable cost calculations, particularly concerning claim success and non-pecuniary damages; excessive and unjustified litigation costs claimed by state authorities; and the failure to consider a litigant’s vulnerability. these factors serve as benchmarks and red flags, triggering human rights scrutiny in the assessment, allocation, and justification of litigation costs in civil rights cases. keywords: access to court, litigation costs, excessive fees, prohibitive costs, vulnerability, european convention on human rights. 1. introduction the effective protection of human rights depends on the right to a fair trial which, inter alia, requires the access to a court. a critical yet often overlooked limitation of the access to a court, as guaranteed under the right to a fair trial in article 6 of the european convention on human rights (echr or convention), is the cost of litigation. however, such costs do not, in themselves, constitute a restriction on the right of access to a court that is inherently incompatible with article 6(1), and states enjoy a wide margin of appreciation in matters concerning litigation costs (hirvelä and heikkilä, 221, pp. 65, 68). litigation costs are understood as all necessary or unavoidable expenses incurred during legal proceedings such as court costs (court filing fees and stamp duties), representation fees (including lawyers’ fees), expenses related to gathering evidence, and other procedural costs (e.g. security for costs, conditional fee arrangements, and success fees). these costs can significantly affect not only an individual's decision to seek justice but also the potential benefits of pursuing a case, thus impacting the effective protection of rights. therefore, evaluating these costs is crucial for understanding how to effectively protect rights and handle legal claims in domestic courts. while costs are inherent to every legal procedure, ensuring access to justice at reasonable price is a key issue in maintaining the right to a fair trial. 1 professor, department of international law, university of novi sad faculty of law, serbia. e-mail: sdjajic@pf.uns.ac.rs. https://orcid.org/0000-0002-5997-9714 https://doi.org/10.17561/tahrj.v24.9282 mailto:sdjajic@pf.uns.ac.rs https://orcid.org/0000-0002-5997-9714 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 2 although article 6(1) does not explicitly mention access to court or litigation costs, the european court of human rights (ecthr or the court) commonly examines litigation costs incurred before national courts as a limitation of the right of access to a court. such costs may also be assessed as limitations under other provisions of the european convention on human rights (echr). while article 6(1) permits limitations by implication,2 these must pursue a legitimate aim and maintain a reasonable relationship of proportionality between the means employed and the objective sought.3 this article analyses the key factors, circumstances, and considerations relevant to determining how litigation costs can adversely affect the right of access to a court under the civil limb of article 6(1) of the echr. the analysis focuses on civil claims concerning ‛civil rights and obligations’, as defined by article 6. although this concept is autonomous,4 it also includes rights and obligations recognised as such under domestic law. consistent with the object and purpose of the echr, the court has interpreted the civil limb of article 6 to encompass certain rights and claims that, under national law, fall within public law or are adjudicated in administrative, disciplinary, constitutional, or specialised proceedings (schabas, 2015, pp. 273–274). this study is based on comprehensive research into ecthr case law concerning litigation costs under the civil limb of article 6. it examines approximately 50 publicly available ecthr cases selected to illustrate the key issues discussed. this case analysis has brought these factors and patterns to light. in order to contribute to the discussion on the human rights aspects of litigation costs, this article provides a detailed overview of the factors5 and recurring patterns of circumstances that lead to violations of the convention due to litigation costs, alongside the relevant considerations in the court’s assessment. this represents a shift in perspective, as the court has generally considered most restrictions as proportionate (grabenwarter, 2013, p. 128) and litigation costs per se compatible with article 6.6 these factors and patterns are central to the court’s proportionality analysis in balancing the right of access to a 2 golder v. united kingdom, ecthr, application no. 4451/70, 21 february 1975, para. 38. 3 guérin v. france, ecthr, application no. 25201/94, 29 july 1998, para. 37; malahov v. moldova, ecthr, application no. 32268/02, 7 june 2007, paras. 26-28. 4 ‛the court reiterates that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the respondent state’s domestic law; it is an autonomous concept deriving from the convention.’ grzęda v. poland, ecthr (gc), application no. 43572/18, 15 march 2022, para. 287. 5 the term “factor” is used by the court: ‘[t]he amount of such fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the stage of proceedings at which such a restriction is imposed, are factors which are material in determining whether or not a person enjoyed his right of access.’kreuz v. poland, ecthr, application no. 28249/95, 19 june 2001, para. 60; podbielski and ppu polpure v. poland, ecthr, application no. 39199/98, 26 july 2005, para. 64; paykar yev haghtanak ltd v. armenia, ecthr, application no. 21638/03, 20 december 2007, para. 48; laçi v. albania, ecthr, application no. 28142/17, 19 october 2021, para. 51. also: ‛having regard to all these factors, the court concludes that the applicant’s right of access to a “tribunal” within the meaning of article 6 § 1 was infringed.’ aït-mouhoub v. france, ecthr, application no. 22924/93, 28 october 1998, para. 58. 6 harrison mckee v. hungary, ecthr, application no. 22840/07, 3 june 2014, para. 22. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 3 court against a legitimate aim. factors that typically prompt the court’s scrutiny include excessive formalism in the imposition of court fees, stamp duties, or security for costs; unreasonable cost calculations, mostly concerning the assessment of the success of claims in general and of claims for non-pecuniary damages in particular; excessive or unjustified litigation costs claimed by state authorities representing the state in legal proceedings; and failure to consider a party’s vulnerable position in litigation. these factors are relevant for the court’s proportionality analysis. the article is structured as follows. section 2 provides background on how litigation costs have emerged as a human rights issue despite the echr’s lack of explicit guarantees regarding access to court or litigation costs. it also establishes a framework for assessing litigation costs in relation to the right of access to a court. section 3 examines the factors relevant to proportionality, including excessive and disproportionate formalism in the assessment of stamp duties, court fees, and security for costs, these being the initial expenses typically required of parties seeking legal relief. it also considers unreasonable cost calculations, particularly regarding the litigation success in general and for nonpecuniary damages in particular, excessive or unjustified litigation costs claimed by state authorities, and the failure to account for the vulnerability of litigants. 2. background: litigation costs as a human rights issue none of the rights and freedoms in the echr expressly guarantees the right of access to court or contains any reference to litigation costs. both access to court and litigation costs have been commonly associated with article 6(1) of the convention thanks to golder v. united kingdom and airey v. ireland respectively. in golder the court found that the principle that a civil claim must be capable of being heard by a judge is recognized as a fundamental principle of law, similarly to the international law principle that forbids the denial of justice. article 6(1) of the convention should be interpreted in light of these principles, ensuring not just the fairness of the proceedings already before a court but also guaranteeing access to the court itself. therefore, the court has concluded that the right to access a court is an inherent and independent part of guarantees in article 6(1), emphasizing that procedural guarantees are meaningless without access to judicial proceedings.7 however, this right needs to be ‘practical and effective’ as the court found in airey v. ireland.8 in this case, the applicant, unable to afford a lawyer, faced the prospect of representing herself in a separation case against her husband before the high court of ireland, where no legal aid was available for such cases. absence of financial support for legal representation in complex litigations was found to be in breach of article 6(1) of the convention, but also that litigation costs and the right to legal aid are actionable under the convention. as mark villiger (2022, p. 350) notes: ‘it is impressive how early on this occurred and that in the nearly 50 years since, despite early criticism, the right of access to court has never substantially been called in question.’ 7 golder v. united kingdom, paras. 35-36. 8 airey v. ireland, ecthr, application no. 6289/73, 9 october 1979. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 4 litigation costs are therefore typically examined under the right of access to court in article 6(1) and other fair trial guarantees, such as the principle of equality of arms9 and the overall fairness of the procedure.10 additionally, litigation costs may implicate the right to property,11 freedom of expression,12 or other rights,13 particularly if they raise issues related to or in connection with these rights and guarantees. generally, ‘litigation costs’ encompass all expenses that are necessary or unavoidable during legal proceedings before national authorities. this broad term typically includes court costs, representation fees (such as lawyers’ fees), and expenses related to gathering evidence, collectively representing the financial burden associated with litigation (reinman 2012, p. 8). according to principle 25.1. of the unidroit principles of transnational civil procedure: ‘“costs” include court filing fees, fees paid to officials such as court stenographers, expenses such as expert-witness fees, and lawyers’ fees’.14 the court observed that litigation costs include a variety of expenses in relation to proceedings, including court fees, stamp duties, security for costs, conditional fee arrangements and success fees,15 that are to be paid either prior to the proceedings or as the final decision on costs, the latter sometimes assessed against the total amount awarded as compensation. as paulsson (2005, p. 246) observes, ‘[j]ustice is unlikely ever to come instantly at no cost to the deserving party, but that observation does not justify complacency.’ indeed, the right of access to court is not absolute and may be subject to limitations permitted by implication,16 including financial ones, provided that these limitations do not diminish access to such an extent that the essence of the right is impaired.17 the cases revolving 9 ‘one may distinguish between the effective access to court, on one hand, and equality of arms on the other, as different rationales for obligation of a state to provide for free legal assistance or legal aid scheme.’ schabas (2015, p. 285); also, silva de freitas (2021). 10 stankiewicz v. poland, ecthr, application no. 46917/99, 6 april 2006. 11 the right to property can serve as an independent ground for assessing the impact of litigation costs on the applicant (e.g. perdigão v. portugal, ecthr, application no. 4768/06, 16 november 2010; musa tarhan v. turkey, ecthr, application no. 12055/17, 23 october 2018; national movement ekoglasnost v. bulgaria, ecthr, application no. 31678/17, 15 december 2020; bursać and others v. croatia, ecthr, application no. 78836/16, 28 april 2022), or the claim based on excessive litigation costs can be entertained under both article 1 p1 and article 6(1) of the convention (e.g. klauz v. croatia, ecthr, application no. 28963/10, 18 july 2013; cindrić and bešlić v. croatia, ecthr, application no. 72152/13, 6 september 2016; coventry v. united kingdom, ecthr, application no. 6016/16, 11 october 2022). the right to property usually comes into play when applicant received compensation that was excessively reduced or even exceeded by litigation costs ordered against him. 12 tolstoy miloslavsky v. the united kingdom, ecthr, application no. 18139/91, 13 july 1995; mgn limited v. united kingdom, ecthr, application no. 39401/04, 18 january 2011. 13 in airey v. ireland the ecthr found violation of articles 6(1) and 8. 14 ali/unidroit principles of transnational civil procedure, 2004. 15 mgn limited v. united kingdom, ecthr, application no. 39401/04, 18 january 2011; coventry v. united kingdom. 16 campbell and fell v. united kingdom, ecthr, application nos. 7819/77, 7878/77, 28 june 1984, para. 90 (noting that ‘that recognition resulted from the fact that the right in question was inherent in the first sentence of article 6 para. 1 (art. 6-1) but was not defined therein’). 17 on justifiable limitations, including the financial ones, see villiger (2022, pp. 347-349). https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 5 around litigation costs against the standards set up by the convention demonstrate that the focus of the court has been less about the rules on allocation and assessment of costs as such, giving in to margin of appreciation of states, but has been instead more about their flexibility, proportionality and effectiveness in relation to the circumstances of the case. arguably the court applies a more flexible approach to requirements not specified in the convention, such as the right of access to court or litigation costs, in the context of civil limb of article 6 (lillo lobos 2022, pp. 134-135). however, excessive formalism or the absence of adjustment instruments in the face of excessive costs and particular position of an individual and circumstances of the case could be subject to scrutiny under article 6(1) of the echr.18 the court starts with the presumption that access to court is not an absolute right, that it can be subject to limitations permitted by implication,19 including financial limitations,20 as it requires resources and regulations of the state.21 the court also evaluates a legitimate aim and proportionality,22 i.e., whether burden sharing is detrimental for the applicant in the sense that a disproportionate burden distribution restricts the very essence of the right.23 finally, it reviews the effect of these costs on the litigant and their compatibility with the convention.24 therefore, the scope of review is broad and complex and relies on a range of considerations, such as the rationale of the effective right of access to court, national rules on litigation costs, their flexibility and formalism, latitude left to states with respect to organizing and financing judiciary, circumstances of a particular case, financial position of a litigant, availability of legal aid, and the amount of costs assessed in particular case, which is ‘the material factor in determining whether or not a person enjoyed the right of access to court’25. accounting for and calibrating all relevant factors can be a demanding task for assessing whether the litigation costs in particular case could tip the balance of burden sharing and amount to breach of article 6. 3. key factors and considerations in the court’s proportionality analysis of access to justice there are certain identifiable factors that regularly require scrutiny in the assessment of litigation costs. these factors are illustrated by cases that address specific issues related to litigation costs, such as excessive formalism in the assessment of prior financial requirements for gaining access to court; assessment of litigation success in general, 18 nalbant and others v. turkey, ecthr, application no. 59914/16, 3 may 2022, para. 40. 19 aït-mouhoub v. france, ecthr, application no. 22924/93, 28 october 1998, para. 52; kreuz v. poland, ecthr, application no. 28249/95, 19 june 2001, para. 53. 20 brualla gómez de la torre v. spain, ecthr, application no. 26737/95, 19 december 1997, para. 33; teltronic-catv v. poland, ecthr, application no. 48140/99, 10 january 2006, para. 47. 21 klauz v. croatia, para. 85; cindrić and bešlić v. croatia, para. 96. 22 mihajlović v. croatia, ecthr, application no. 21752/02, 7 july 2005, para. 41; černius and rinkevičius v. lithuania, ecthr, application nos. 73579/17 and 14620/18, para. 66. 23 laçi v. albania, ecthr, application no. 28142/17, 19 october 2021, paras. 50, 52, 54, 60. 24 kreuz v. poland, para. 56. 25 klauz v. croatia, para. 82; čolić v. croatia, ecthr, application no. 49083/18, 18 november 2021, para. 44. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 6 and in relation to claims for non-pecuniary damages in particular; unjustified litigation costs of a state as the party in the proceedings; and the disregard for the vulnerability of litigants. although these cases highlight the relevance of various factors, each group of cases emphasizes specific considerations that will be addressed below. 3.1. excessive formalism and disproportionate costs: stamp duties, court fees, security for costs as previously discussed, litigation costs represent a limitation on the right of access to a court, potentially resulting in a breach of this right if the proportionality between the right and a legitimate aim is compromised. one key factor in the proportionality test, often addressed by the court, is the impact of excessive formalism in assessing and levying pre-proceeding expenses on access to court. since these expenses constitute the initial litigation costs, they will be examined first. payments due prior to initiating the procedure, such as stamp duties, advance court fees and security for costs, directly affect access to court. such expenses, if excessive, may on their own restrict the right to institute proceedings before courts. they are also relevant for the overall assessment of the effect of litigation costs on ‘whether the proceedings in a civil case seen as a whole have complied with the requirements of article 6 § 1 of the convention’.26 failure to pay prescribed financial duties forecloses possibility to pursue a claim and thus restricts access to court. however, examination of whether court fees restrict access to court is not limited to the initial filing but extends to all submissions within the proceedings,27 including the enforcement proceedings.28 the court generally finds that the right of access to court under article 6(1) of the convention allows for limitations permitted by implication and that ‘the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with article 6 § 1 of the convention’.29 the court has accepted that various limitations, including financial ones such as court fees or security for costs, may be placed on the access to a court, but ‘such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved.’30 moreover, prior financial restrictions on access to court, unrelated to a claim's merits or its prospect of success, are subject to a particularly rigorous scrutiny.31 26 stankiewicz v. poland, para. 60. 27 podbielski and ppu polpure v. poland, ecthr, application no. 39199/98, 26 july 2005 (withdrawal of the fee exemption for the appellate proceedings was found to be in breach of the right of access to court in light of the individual circumstances of the applicant and the amount of fee due.). 28 apostol v. georgia, ecthr, application no. 40765/02, 28 november 2006. 29 kreuz v. poland, para. 60. 30 teltronic-catv v. poland, ecthr, application no. 48140/99, 10 january 2006, para. 47. 31 podbielski and ppu polpure v. poland, para. 65; teltronic-catv v. poland, para. 61. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 7 the court monitors the rules for calculating stamp duties and court fees, the availability of legal aid and exemption options,32 and the amount due prior to submitting the claim. failure to pay the stamp duty or fees for the experts and witnesses may result in the outright dismissal of the claim and, in certain cases, disproportionately limit the right to apply to a court in civil proceedings. in kreuz v. poland it was held that the excessive fee (equal to annual salary in poland) for the claim for damages, the fee the applicant was unable to pay, led to abandonment of the claim and thus constituted a disproportionate restriction of his right of access to court.33 in weissman and others v. romania the court held that access to court was denied due to excessively high court fees necessary to initiate domestic proceedings, rendering it impossible for the applicants to seek restitution for rent collected by the state regarding their building.34 such financial burden impaired ‘the very essence of the right of access to a court.’35 it follows that the strict application of the rule based solely on a set statutory percentage of the sum at stake, which results in excessive stamp duties without considering the financial ability of the applicants or the specific circumstances of the case,36 leads to a situation where applicants must abandon their claim. in smolić v. croatia the national courts dismissed the applicant’s claim for failing to pay expert fees, without considering his financial situation or exemption options. the court found this restriction impaired the essence of his right of access to a court.37 in garcía manibardo v. spain the applicant’s appeal was declared inadmissible owing to the statutory duty on persons, other than those who received legal aid, to deposit amount equal to the appealed compensation award as a formal requirement for submitting the appeal. the court concluded that this requirement disproportionally restricted the applicant’s access to available remedies and thus her right to access to a court.38 these cases demonstrate that rigid statutory requirements and excessive formalism39 can lead to disproportionate restriction of the right to have a case heard by the court. similarly, in laçi v. albania, the court found that the violation of the right of access to court was the result of the persistent failure of domestic courts to assess eligibility for exemption from stamp duty compounded by shortcomings in the operation of the state commission for legal aid and a prevalent reluctance among judges to grant exemptions, as noted by monitoring bodies of the council of europe. in this case the applicant was unable to proceed with his claim due to the protracted decision-making on his request for stamp duty exemption which was 120 times his monthly income.40 in the case of mehmet 32 smolić v. croatia, ecthr, application no. 51472/12, 15 march 2018, para. 55. 33 kreuz v. poland, para. 60. 34 weissman and others v. romania, ecthr, application no. 63945/00, 24 may 2006. the lack of access to a court due to excessive court fees (violation of article 6(1)) turned out to be a systemic problem for romania as subsequently there were 15 more repetitive cases for which weissman was the leading case. see https:// hudoc.exec.coe.int/eng#{%22execidentifier%22:[%22001-108303%22]}. romania subsequently amended its rules on stamp duties in civil proceedings. 35 weissman v. romania, para. 42. 36 georgel and georgeta stoicescu v. romania, ecthr, application no. 9718/03, 26 july 2011. 37 smolić v. croatia, para. 61. 38 garcía manibardo v. spain, ecthr, application no. 38695/97, 15 february 2000, paras. 43-45. 39 the court elaborated the criterion of excessive formalism with respect to procedural rules and access to court in zubac v. croatia, ecthr, application no. 40160/12, 5 april 2018, paras. 96-99. 40 laçi v. albania, ecthr, application no. 28142/17, 19 october 2021, para. 54. https://doi.org/10.17561/tahrj.v24.9282 https://hudoc.exec.coe.int/eng#{%22execidentifier%22:[%22001-108303%22]} https://hudoc.exec.coe.int/eng#{%22execidentifier%22:[%22001-108303%22]} unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 8 and suna yiğit v. turkey, the applicants, who had no income, sought compensation after their daughter experienced severe complications from surgery. the court fees imposed were four times the monthly minimum wage. their request for exemption and legal aid was denied since they were able to obtain representation by a lawyer (who agreed to be paid a portion of any awarded compensation rather than upfront fees) despite the fact that applicants did not have any income or immovable property. subsequently, their claim for damages was dismissed for failure to pay court fees. the court found the fees disproportionate and burdensome, and emphasized that having legal representation did not imply the applicants could afford the fees.41 the effect of fees needs to be assessed in each situation against the financial position of litigants. in malahov v. moldova national courts ordered the applicant to pay court fees 90 times her monthly income although it was first found that she was unable to pay court fees, and despite the fact that national legislation provided courts with option to exempt litigants from court fees due to their poor financial situations – imposition of the court fees was a disproportionate restriction of her right to access to a court.42 failure to account for individual financial circumstances resulting in the dismissal of the claim for damages caused by state authorities can also bring about the breach of the right of access to court.43 such stance can sometimes disclose discrimination against particular vulnerable groups and thus result in breach of the right of access to court under article 6(1) in conjunction with article 14.44 in nalbant and others v. turkey the bank successfully brought the proceedings against the applicants for payment of the loan. when the applicants appealed and sought exemption from court fees, their request was denied. the court criticized the imposed fees for their appeal as excessive, noting they were one-quarter of the total court fees and highlighting the lack of legal provisions for flexible fee calculation or a maximum fee cap. the court thus found violation of the right of access to court due to excessive court fees in commercial appeal proceedings.45 however, with respect to applicants’ companies, the court observed that the domestic courts rejected the exemption request of the applicant companies without conducting a sufficiently thorough assessment. instead, the domestic courts simply relied on the absence of any provision in domestic law for granting legal aid to commercial entities and interpreted such caveat as ‘indiscriminate restriction of court fee exemptions to be applied across the board for all legal persons with a commercial purpose’.46 for the court, the blanket exclusion of court fee exemptions raises, in itself, an issue under article 6(1).47 41 mehmet and suna yiğit v. turkey, ecthr, application no. 52658/99, 17 july 2007. 42 malahov v. moldova, ecthr, application no. 32268/02, 7 june 2007, paras. 31-36. 43 bakan v. turkey, ecthr, application no. 50939/99, 12 june 2007. 44 anakomba yula v. belgium, ecthr, application no. 45413/07, 10 march 2009. 45 nalbant and others v. turkey. the court suggested the reopening of the domestic proceedings. the applicants availed themselves of this remedy provided for under turkish civil procedure rules. in the new proceedings no court fees were charged. – action plan of turkey with respect to execution of the nalbant and others judgment, 20 february 2023, paras. 7-8. available at: [https://hudoc.exec.coe.int/ eng#{%22execidentifier%22:[%22dh-dd(2023)228e%22]}]. 46 nalbant and others v. turkey, para. 45. 47 ibid. also: paykar yev haghtanak ltd. v. armenia, ecthr, application no. 21638/03, 20 december 2007, para. 49. https://doi.org/10.17561/tahrj.v24.9282 https://hudoc.exec.coe.int/eng#{%22execidentifier%22:[%22dh-dd(2023)228e%22]} https://hudoc.exec.coe.int/eng#{%22execidentifier%22:[%22dh-dd(2023)228e%22]} sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 9 however, the court found no violation of article 6(1) in granos organicos nacionales s.a. v. germany which dealt with the refusal to grant exemption from court fees to a foreign company for initiating legal action in german courts against two german companies. arguably, no violation was found on the ground that the unequal treatment of foreign legal persons was justified by the principle of reciprocity, and because of failure of applicants to request temporary exemption from court fees that was allegedly available to both foreign and national persons under certain circumstances. in this case the court established that there was no european consensus on the matter: ‘there does not appear to be a consensus or even a consolidated tendency among the state parties to the convention as regards the granting of legal aid to legal persons. the law of a substantial number of states does not provide any form of legal aid to legal persons.’48 however, in nalbant and others v. turkey the court found that despite the lack of european consensus the right of legal persons to such exemptions under article 6(1) is not excluded, most notably not the guarantees in respect of excessive court fees.49 moreover, the court expressed concern regarding the potential impact of blanket bans on legal aid for legal persons. legal aid as such thus may come under the ambit of the right to access to a court although it can also be scrutinized within the standard of equality of arms.50 institution of a legal aid scheme for non-criminal litigations falls within the generous margin of appreciation the limits of which can be discerned in the court’s case law. in the seminal airey v. ireland case, the court held that although article 6 does not mention the right to legal assistance or legal aid with respect to civil litigation ‘article 6 para. 1 (art. 6-1) may sometimes compel the state to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain contracting states for various types of litigation, or by reason of the complexity of the procedure or of the case.’51 in that particular case the court found that the absence of any legal aid scheme led to violation of article 6(1). conversely, when a litigation is not complex and the applicant possesses sufficient knowledge, denial of legal aid will not be contrary to article 6(1).52 in andronicou and constantinou v. cyprus the absence of legal aid scheme was countered by the ad hoc ex gratia offer of the legal aid by the attorney general to the financially despondent applicants in the particular case, the offer that was refused, and for the court 48 granos organicos nacionales s.a. v. germany, ecthr, application no. 19508/07, 22 march 2012, para. 47, also para. 53. 49 nalbant and others v. turkey, para. 39. 50 in bertuzzi v. france (ecthr, application no. 36378/97, 13 february 2003) and steel and morris v. uk (ecthr, application no. 68416/01, 15 february 2005) the court found the violation of the principle of equality of arms under article 6 due to absence of legal aid that prevented applicants from having legal representation in complex proceedings. in coventry v. the united kingdom, the principle of equality of arms was breached due to excessive and arbitrary burden on unsuccessful uninsured defendants in conditional fee arrangement litigation due to recoverability of success fees and insurance premiums. 51 airey v. ireland, para. 26. 52 mcvicar v. the united kingdom, ecthr, application no. 46311/99, 7 may 2002, paras. 46-62. however, one of the issues was whether the blanket refusal of legal aid in defamation cases was compatible with article 6(1). the court responded to this issue by relying on circumstances of the case finding that the applicant was able to present his defence effectively before the high court. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 10 that was sufficient to find that applicants did have access to court although state was its opposing party in the proceedings.53 financial restrictions to instituting proceedings could also be placed in the form of security for costs to be incurred by the other party to the proceedings as an advanced payment which is the condition for submitting the claim. failure to deposit a required amount may result in dismissal of the claim and thereby limit access to the court. while security for costs should not be equated with court fees, given that the latter are collected by courts and constitute a portion of state revenues—unlike security for costs, which serves to protect the defendant from an inability to recover costs—the impact, timing, and burden of these two financial obligations are perceived as equivalent from the claimant's standpoint and in terms of access to the court. therefore, it is not surprising that the court addressed security for costs as an issue arising under article 6(1). security for costs could be imposed as a matter of general procedural rules equally applicable to all potential parties to proceedings but also as a cautio judicatum solvi mandatory only for foreign claimants in international proceedings. cautio judicatum solvi ‘ensures that a defendant’s possible costs relating to such international proceedings will be covered. such costs could, in theory, be difficult to recover due to the fact that the claimant has no ties to the forum and/or no assets.’ (kiestra 2014, p. 122) the court’s case law on cautio judicatum solvi is scarce54 with only passing references that a disproportionate amount on this ground could restrict access to court.55 it is arguable that cautio judicatum solvi is permissible under the right of access to a court, subject to requirements applicable to similar restrictions. (kiestra 2014, p. 122) with respect to security of costs the court applied the same standard as regarding other financial limitations of the access to court. the court routinely mentions security for costs as a legitimate restriction of the right of access to court provided that imposed measure is not disproportionate in the particular circumstances of the case. for example, in tolstoy miloslavsky v. uk, the court found that requiring gbp 124,900 as security for costs within two weeks, to pursue an appeal, did not infringe the right of access to court, emphasizing the defendant's financial capacity as a key consideration.56 conversely, in the case which dealt with the applicant’s inability to join the criminal proceedings as a civil party due to excessive security for costs, the court found that the imposition of such a large sum (frf 80,000 in 1993) as disproportionate, considering that the applicant, who had not received any response for his repeated requests for legal aid, lacked any financial resources.57 this requirement effectively denied him the opportunity to pursue his case.58 53 andronicou and constantinou v. cyprus, ecthr, application no. 25052/94, 9 october 1997, paras. 199201. 54 part of explanation lies in the fact that the obligation to deposit sums on this ground is not applicable within eu with respect to its nationals and residents (brussels i regulation and lugano convention) but also with respect to persons domiciled in state parties to the hague convention on civil procedure. 55 les travaux du midi v. france, application no. 12275/86, 2 july 1991, p. 57. 56 tolstoy miloslavsky v. the united kingdom, ecthr, application no. 18139/91, 13 july 1995. 57 aït-mouhoub v. france. 58 ibid., para. 57. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 11 it can be concluded based on the discussed case law that the court has accepted ‘that it falls within the state’s margin of appreciation to establish its court fee system in such a way as to link court fees for pecuniary claims to the amount in dispute. the system, however, has to be sufficiently flexible to allow a party to benefit from full or partial exemption from the payment of court fees or a reduction in the court fees.’59 however, these early costs and expenses, in whatever form they appear, constitute but one element of the overall assessment of the right of access to court in terms of litigation costs as argued in this article. while some elements may offer exact financial estimates, like arguably stamp duties, costs fees or even security for costs, others might be less predictable but are equally relevant for the access to court in terms of final litigation costs, as will be demonstrated in the following sections. 3.2. unreasonable cost calculation in claims for non-pecuniary damages the court seems to leave a considerable margin of appreciation to states when regulating matters of litigation costs. there are national rules on litigation costs in civil proceedings that are adopted by most european states which leaves the court with fewer options to tackle such rules due to the operation of the concept of the european consensus. one of such rules is the ‘loser pays’ principle according to which the ruling on costs mirrors the success of the party to the civil proceedings.60 the court upheld the validity of the rule as a matter of principle61 and found that the principle is not contrary to the convention.62 it even seems that this is the rule the court favours over splitting the costs rule regardless of the outcome of the litigation,63 but the court nevertheless carefully examines how the ‛loser pays’ rule has been applied in the particular case.64 however, the application of the general principle of calculating such costs is not without difficulties in relation to claims for non-pecuniary damage. rigid rules on calculating fees or overall litigation costs based solely on the value stated in the initial claim can clash with the right of access to court, as already demonstrated in the previous section. the issue seems to be even more complex with respect to non-pecuniary claims given that 59 nalbant and others v. turkey, para. 40. 60 ‘most systems operate a loser pays rule, which means that a defeated party should prima facie indemnify, or contribute substantially towards, the other side's legal costs. the rule has an attractive simplicity: it operates as an instrument of strict liability. the rule also reflects basic justice: responsibility for the winner's costs rests with the party who brought or defended a losing cause.’ – andrews (2014, p. 295). 61 klauz v. croatia, para. 89. 62 cindrić and bešlić v. croatia, para 96; bursać and others v. croatia, para. 81. 63 stankiewicz v. poland. 64 in the coventry case the court found that the application of the ‛loser pays’ principle in the circumstances of the case breached both article 6(1) and article 1 of protocol 1, due to obligation of the uninsured losing party to cover the success fees and insurance premiums of the successful party (coventry v. united kingdom, paras. 97-98). the amount that was to be paid was disproportionate. the legal framework that enabled the recoverability of these costs was put in place to facilitate the access to court to litigants without sufficient financial means. in other words, the system was put in place to replace the legal aid scheme but with undesired detrimental effects. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 12 non-pecuniary damage is inherently difficult to assess. in the stankov v. bulgaria case the central issue was whether the calculation of fees amounting to 90% of the received compensation for unlawful detention was justified in terms of the right of access to court. national courts upheld the applicant’s claim for non-pecuniary damage occasioned by his detention but the stringent rules on calculating the fees eventually deprived the applicant of effective remedy and thus of the access to court. given that the fees were to be charged at a rate of 4% of the dismissed claim,65 it turned out that the applicant’s fault was in submitting the overinflated claim. however, this was done in circumstances where there was no settled case law or clear guidelines for such claims, and where no additional costs were incurred due to the amount of the claim. admittedly, ‘non-pecuniary damage is inherently difficult to assess’66 so the automatic and inflexible calculation of fees, with such adverse effect on damages received, is disproportionate to the legitimate aim of the good administration of justice.67 a similar issue was raised in klauz v. croatia case – the claim for non-pecuniary damage against the state was upheld in substance but the amount of received compensation was drastically reduced by 79% due to litigation costs on the basis of the success rule calculated by difference between the claimed and awarded compensation. unlike in bulgaria in relation to the stankov case, in croatia there was a settled jurisprudence for the amount of awarded damages that could have signalled the applicant how much he would have been awarded if successful with his claim. the applicant reduced the claim following the initiation of the proceedings, but national courts based their litigation costs decision on the initial claim. these litigation costs included this time not only fees but also legal representation costs of the losing party, the state itself. for the court it was again overly inflexible and formalistic against all the circumstances of the case, and against the fact that non-pecuniary damage is generally difficult to assess,68 so the submission of an excessive claim for damages could not justify such reduction of the awarded compensation.69 the court found a breach not only of article 6(1) but also of article 1 of protocol 1, due to the lack of proportionality between the rights in question and the legitimate aim, which was, in itself, justified. the trouble of calculating non-pecuniary damages against the risk of high litigation costs is equally present in proceedings against private parties and is equally eligible for the scrutiny by the court. in čolić v. croatia the applicant faced an order for costs in private civil proceedings that were twice the amount of the compensation awarded for non-pecuniary damage. the applicant succeeded in his private claim for damages against a private individual who physically assaulted him, but the national courts found that the applicant had ‘quantitatively succeeded’ by securing only about 25% of the 65 stankov v. bulgaria, ecthr, application no. 68490/01, 12 july 2007, paras. 19-20, 57. 66 stankov v. bulgaria, para. 62, also, čolić v. croatia, para. 54; klauz v. croatia, para. 88. 67 stankov v. bulgaria, para. 67. 68 klauz v. croatia, para. 88. 69 ibid., para. 93. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 13 claimed amount70 although the initial claim was reduced by nearly two thirds at the very beginning of the proceedings.71 given the inherent difficulty in assessing the claims for non-pecuniary damage as well as difficulty to strictly apply the ‛loser pays’ rule in such cases,72 against the mechanical application of the rule and the absurd results of what was in essence a successful litigation for the applicant,73 the court found that decision on costs of national courts was disproportionate and thus contrary to the right of access to court but also to the right to a peaceful possession. the court also found that the application of the relevant domestic legislation exceeded the acceptable margin of appreciation granted to domestic courts.74 the court reiterated that guarantees of access to court apply equally to both private disputes and those involving the state.75 imposition of a considerable financial burden after the conclusion of the proceedings may constitute a restriction on the right to access to a court.76 this is particularly true if these costs are calculated solely based on the original claim amount, especially in cases involving claims for non-pecuniary damages, which are inherently difficult to quantify. moreover, if the possibility of increasing the claim amount is prevented in subsequent proceedings, such financial burdens might disproportionately restrict access to the courts. this is the case despite the reasonable basis of the ‘loser pays’ rule. calculation of litigation costs in cases of claims for non-pecuniary damages thus requires a special consideration given its possible restrictive effect on the access to court. 3.3. excessive and unjustified litigation costs of a state the ‘loser pays’ principle as such, as demonstrated above, has been upheld by the court as both well-established and reasonable. one rationale for the rule is its deterrent function aimed at fending off frivolous and abusive claims, which on more than one occasion has been found justified by the court.77 even in cases where a state is a defendant in civil proceedings, the same purpose of the ‘loser pays’ principle could be seen as equally applicable because the state does not have limitless resources to participate in proceedings so it is in principle entitled to costs as any other party.78 however, this general approach, which equates states with private parties in litigation costs, sometimes requires closer scrutiny and reconsideration, as will be discussed in this section. in several cases against croatia this turned out to be a separate issue and one of the contributing factors for the assessment of costs against the right to access to a 70 čolić v. croatia, para. 58. 71 ibid., paras. 5, 6, 8, 56. 72 ibid., para. 54. 73 ibid., para. 58-59. 74 ibid., para. 59. 75 ibid., para. 53. 76 čolić v. croatia, paras. 42, 60; klauz v. croatia, para. 77; stankov v. bulgaria, para. 54; zustović v. croatia, ecthr, application no. 27903/15, 22 april 2021, para. 98. 77 stankov v. bulgaria, para. 57, klauz v. croatia, para. 84-85. 78 klauz v. croatia, para. 85, cindrić and bešlić, para. 96. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 14 court and the right to property.79 in these cases, the state was represented by the state attorney’s office which was entitled to fees based on scale of advocates’ fees i.e. it was entitled to charge the same fees as private attorneys. this was the rule established by the law and followed by domestic courts. the question thus was whether the state can assume the same position as private attorneys in terms of litigation fees given that it is financed from the budget, but also because the state prescribes special (lower) rates for fees payable to private attorneys who act as ex officio defending lawyers. in other words, the question is whether the state as such treats state attorney, other entities and private attorneys equally in all other matters so that charging fees cannot be taken as a departure from the equality standard. in klauz v. croatia the court held that imposition on the applicants to pay the costs of the state representation may be viewed as a restriction hindering the right of access to court when such costs consisted of fees chargeable for the representation of the state by the state attorney’s office in the civil proceedings and payable into the state budget.80 in klauz the court addressed the issue of the costs of representation of the state attorney from the position that such costs, although calculated as advocate’s fees, were to be treated as court fees the amount of which could represent disproportionate limitation of the right to access to a court. in other words, costs of state representation fall closer to state limitations of the access to court than to advocate’s fees despite the usual disclaimer that the state as a party to the proceedings is entitled to recover costs of its representation because it does not have limitless resources and should be in principle entitled to the protection from ill-founded claims.81 it seems that the croatian supreme court, in subsequent cases, accepted that it was contrary to article 6(1) of the convention to order the payment of legal representation fees to the state, that was represented by the state attorney, in specific circumstances of the case, and that this was the main rationale of the ecthr in klauz and chief ground for state responsibility.82 the court followed its reasoning in later cases where the matter of state representation costs was brought up. for example, in cindrić and bešlić v croatia case, the court also held: ‘[t]he national courts ordered the applicants to pay for the state’s representation the amount that would be awarded to the opposing party as advocates’ fees. the court attaches considerable importance to the fact that the opposing party in the proceedings at issue was the croatian state, represented by the state attorney’s office and that the costs of that office in 79 bursać v. croatia, cindrić and bešlić v. croatia, klauz v. croatia. 80 klauz v. croatia, para. 77. 81 klauz v. croatia, para. 85. similar caveats allowing states to recover their representation costs, protect its judicial system and deter frivolous or abusive claims are to be found in cindrić and bešlić v. croatia, para. 96; musa tarhan v. turkey, para. 80, stankov v. bulgaria, para. 67. 82 supreme court of croatia, case no. rev 725/14-2 of 23 october 2014, see čolić v. croatia, para. 19; also, supreme court of croatia, case no. rev-3002/2014-3 of 11 july 2018, čolić v. croatia, para. 21. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 15 the civil proceedings at issue were assessed on the basis of the advocates’ fees. however, as rightly pointed out by the applicants, that office, since it is financed from the state budget, is not in the same position as an advocate.’83 this position was verbatim transposed to other cases, such as bursać v. croatia84 where the court found the violation of the right to property and on that account decided not to entertain the claim under article 6(1). the court also noted that there were available mechanisms which could alleviate the burden imposed on the applicants, ranging from not claiming the litigation costs by state attorney or at least not seeking the enforcement of the costs order. these were manifestly available options not resorted to by croatian authorities.85 it must be reiterated that a number of variables are to be assessed when examining whether the costs of state representation amount to unjustifiable restriction of the right to have access to a court. in cindrić and bešlić v. croatia these were the facts that the claim was not manifestly unfounded in light of the existing case law, that the defendant state was represented by state attorney (not advocate), and that the costs had a disproportionately adverse effect on financially fragile plaintiffs.86 however, it remains that the court singled out the fact that the charge of advocates’ fees by the state attorney was not justified referencing implicitly to other considerations underpinning its conclusion, such as that costs were to be paid to the state budget, were not contributions to the court system as such,87 that the right to fees is withheld when state attorney is a party to the proceedings but not when it represents state,88 that the office of state attorney is financed from the state budget,89 and that domestic courts refused to award costs to companies with in-house lawyers.90 cindrić and bešlić v. croatia remains the case that is relied upon by the court for finding the violation when the applicants were ordered to pay the costs of the state’s representation by the state attorney’s office.91 since the state’s representation costs are unrelated to the court system, but the applicants had to reimburse them into the state’s 83 cindrić and bešlić v. croatia, para. 108. 84 bursać v. croatia, para. 101. 85 ‘by way of observation the court notes that in cases such as the present one the state has a number of additional possibilities to achieve the necessary flexibility. the court first refers to the government of croatia’s decision and decree of 2009 and 2013 respectively, mentioned in paragraphs 43 and 44 above. moreover, precisely because the state is a party to the civil proceedings in such cases, the state attorney’s office may opt not to claim costs or, if the costs order is issued, not to seek payment of those costs or enforcement of the costs order (see kresović and others v. croatia (dec.), no. 5864/12, § 19, 12 september 2017).’ bursać v. croatia, para. 106. 86 cindrić and bešlić v. croatia, para. 110. 87 ibid, para. 92. 88 ibid, para. 102. 89 ibid, para. 108. 90 ibid, para. 108. 91 zustović v. croatia, para. 98. croatia subsequently agreed to the payment under friendly settlement in several cases where the applications concerned the domestic courts’ decisions ordering the applicants to pay the costs of the state’s representation in the civil proceedings in which they sought damages. see resolution cm/resdh(2023)371 adopted by the committee of ministers on 7 december 2023 at the 1483 rd meeting of the ministers’ deputies. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 16 budget, the case was assessed under the general principle of the first paragraph, unlike costs related to the court system which are assessed under the second paragraph of article 1 of protocol no. 1 (harris et al., 2023, p. 886). a separate category includes costs of the proceedings in disputes against the state originating from acts in the exercise of its public authority. refusal to award costs to applicant who prevailed in disputes against a state in relation to its exercise of public authority, in procedures usually conducted before administrative authority or constitutional courts, may constitute a restriction of the access to a court or the right to property. if the costs are imposed on applicant despite the success in the case against a state, because procedural rules do not provide for reimbursement of costs to successful claimants against a state, for the court that might be sufficient for finding violation of articles 692 or article 1 of protocol no. 1.93 in zustović v. croatia domestic rule on costs and expenses in administrative procedures was that each party was to bear its own costs regardless of the outcome of the procedure. however, given that the success of the private party in these cases implies the responsibility of the state in relation to its exercise of public authority, there is no legitimate aim in equal distribution of costs regardless of the outcome.94 the finding of the court in a similar but earlier case, černius and rinkevičius v. lithuania, was the same with the only difference that the limitation on the reimbursement of litigation costs in such cases was seen as a legitimate aim95 but the breach was found due to the lack of proportionality96 – applicants successfully challenged fines but were refused the reimbursement of the costs, due to operations of procedural rules, so the financial burden was treble to the one they originally faced. notably, in both these cases the court challenged national procedural rules on allocation of costs in administrative procedures and before administrative courts to the point it held that the breach would have happened ‘regardless of the amount of these costs.’97 a more general principle was highlighted by the court in both these cases: ‘the risk of any mistake made by the state authority must be borne by the state itself and that errors must not be remedied at the expense of the individuals concerned’.98 in dragan kovačević v. croatia, the court sided with the applicant who complained about having to bear the costs of legal representation before the constitutional court despite his successful constitutional complaint which led to the reversal of the civil court judgment on the deprivation of his capacity that was launched by the social services. it was found that the applicant had to bear a disproportionate financial burden, and such restriction was not justified by the legitimate aims pursued.99 92 černius and rinkevičius v. lithuania, ecthr, application nos. 73579/17 and 14620/18, 18 february 2020, paras. 65-74. 93 musa tarhan v. turkey, para. 71-89. 94 zustović v. croatia, para. 106. 95 černius and rinkevičius v. lithuania, para. 69. 96 ibid, para. 70. 97 černius and rinkevičius v. lithuania, para. 74, zustović v. croatia, para. 100. 98 černius and rinkevičius v. lithuania, para. 71, zustović v. croatia, para. 100. 99 dragan kovačević v. croatia, ecthr, application no. 49281/15, judgment of 12 may 2022, paras. 79-85. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 17 the ‘loser pays’ principle applies even when the state is a party to legal proceedings, as it has limited resources and should not be burdened by baseless claims. however, treating the state exactly like private parties in litigation costs raises concerns, particularly when state representation is funded by public money. several cases have highlighted tensions between the ‘loser pays’ rule and fundamental rights such as access to justice and property rights the court determined that equating state attorneys’ fees with private legal fees could constitute an unjustifiable restriction on access to justice. these cases illustrated how imposing legal costs on individuals, particularly financially vulnerable plaintiffs, could be disproportionate, especially when such fees are paid into the state budget rather than directly funding the judiciary. the ecthr has also scrutinised procedural rules governing costs in disputes involving the state’s exercise of public authority and established that individuals should not bear the financial consequences of state errors. the court has consistently reinforced that states must ensure that legal cost structures do not disproportionately disadvantage individuals, particularly in disputes involving public authority. 3.4. (mis)evaluation of litigation success the success of the claim directly impacts litigation costs under the ‛loser pays’ principle according to which costs proportionally follow the success of the claim. successful party is entitled to recover the costs from its opponent but success in litigation may sometimes be difficult to assess. what are the variables for determining success other than quantitative in terms of the ratio between the claimed and awarded sum? another issue is whether the opposite equally applies – are unsuccessful claimants to bear all litigation costs? in addition, are all unsuccessful claims equally unsuccessful or is each such claim unsuccessful in its own way? for the ecthr, success in litigation must be reflected in the net value received by the successful litigant, which means the net sum left to the applicant after the deduction of all litigation costs.100 even the success with respect to civil rights claims in administrative and constitutional procedures, so-called one-party procedures, requires the adjustment of costs to avoid the detrimental effect on the overall success of applicants.101 therefore, successful claims are seen as successful both in terms of merits and litigation costs, as far as the ecthr is concerned. the ecthr seems to be cautious in applying the outright reversal of the ‘loser pays’ rule or the ‘costs follow the event’ principle. the court reads not only the operative part of national judgments but rather assesses a case as a whole. for the court there are different degrees of unsuccess which range from manifestly ill-founded claims to plausible causes of action which eventually failed especially when the failure of the originally plausible 100 ‛[t]he court fees' system applied by the bulgarian courts had the effect of depriving the applicant of almost all of the compensation the state had been ordered to pay him for his unjustified pre-trial detention.’ – stankov v. bulgaria, para. 58. 101 zustović v. croatia, dragan kovačević v. croatia. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 18 claim cannot be attributed to the claimant. once the rejected claim is found to be plausible, the court will assess the relationship of proportionality between litigation costs and the application of the ‛cost-follow-the event’ rule, which will now be further discussed. the cases of cindrić and bešlić v. croatia, and bursać and others v. croatia are quite illustrative of the court's approach. in cindrić and bešlić v. croatia, the applicants brought an unsuccessful civil action against the state in connection with the killings of their parents in the then occupied part of croatia. they were ordered to pay around eur 6,800 in litigation costs. however, the court found that the applicants’ civil claim against the state was not entirely devoid of substance or manifestly unreasonable bearing in mind the provisions of the relevant legislation in force at the time. the crux of the issue was how to qualify the murders in the then occupied territories, i.e. as acts of terror or as war related damage. liability of the state was to arise only in relation to the former. while in certain earlier cases croatian courts upheld claims against state based on interpretation that such acts were acts of terror,102 and consequently awarded damages, the case law and the interpretation subsequently changed to war related damages with the effect of refusal of the claim. since the interpretation of these provisions changed in the course of the proceedings before domestic courts, it was this interpretation that intervened in their case to their detriment. therefore, the applicants could not foresee that such change would occur during the proceedings.103 the court thus found the breach of article 1 of protocol 1 because the applicants had to bear a disproportionate burden in weighing in their individual rights and legitimate aim pursued.104 on the basis of the same arguments the court also found the breach of the right of access to court within the meaning of article 6(1) of the convention. in the case of bursać and others v. croatia the applicants, who took refuge following the military campaign in croatia during which their father was killed as a civilian, allegedly by croatian military and police forces, in 2005 sought damages before croatian courts in connection with their father’s killing. five years into the proceedings their claim was rejected as time-barred due to the expiration of the objective five-year statutory limitation under the civil act. the applicants, however, argued that their claim was based on another piece of legislation, the 2003 liability act, which established state responsibility arising from the war and related crimes. according to the 2003 liability act, ‘if the statutory limitation period for a claim for damages began to run before 6 november 1999, it must continue to run after the entry into force of that act, and the time that has elapsed before the suspension is to be counted in the statutory limitation period. the liability act does not require prior determination of individual criminal responsibility for the damage.’105 however, the claim based on this legislation was also rejected. the argument offered by domestic courts was that there was no criminal conviction that could positively prove the war crime character of the killing. in the end the applicants were ordered to pay the litigation costs in the amount of approximately eur 8,000. 102 cindrić and bešlić v. croatia, paras. 49, 106. 103 ibid., para. 107. 104 ibid., paras. 110-111. 105 bursać v. croatia, para. 32. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 19 unlike in cindrić and bešlić v. croatia case, the case law of the croatian courts was consistent in rejecting claims similar to the applicants’ claim in bursać and others v. croatia. croatian courts consistently applied the general statutory prescription rule of five years and required the criminal conviction, both before and after the adoption of the liability act. however, the ecthr still found that the applicants had a plausible claim based on the existing legislation.106 the ecthr believed that the 2003 legislation gave rise to hopes of the victims of gross human rights violations precisely because of different rules on statutory limitations.107 given that circumstances of the case gave rise to suspicions of grave human rights breaches and war crimes, and considering the legislation on which they relied, the court found that it ‘cannot be said that the applicants’ civil claim for damages, lodged in september 2005, was from the outset manifestly unreasonable, or devoid of any substance.’108 the court rejected the national courts’ manoeuvring around the clear wording and purpose of the new legislation, and the leeway given by this piece of legislation that was further exacerbated by ‘unattainable burden of proof which the civil courts imposed on plaintiffs seeking compensation for wartime damage.’109 litigation costs were accrued partly because the proceedings lasted longer than needed given that the state attorney raised the objection of statutory limitation quite late,110 and the applicants were further denied their request for writing-off litigation debts. on these grounds the court found violation of article 1 of protocol 1 rather than of article 6(1), although the reasoning fits the bill of the right of access to court. therefore, there are nuances the court is prepared to consider when evaluating the plausibility of claims, but this does not change the fact that plausibility of a claim is a factor for assessment of litigation costs. plausible claims are not manifestly ill-founded, frivolous or raised in bad faith. the question is whether and to what extent national procedural rules offer mechanisms to separate manifestly ill-founded and abusive claims from plausible ones. such mechanisms could conserve resources, protected by the ‘loser pays’ principle, much earlier and to the benefit of all parties, but most notably to the benefit of the system. 3.5. disregard for the vulnerability of litigants in addition to the factors described above, there appears to be an additional and recurring factor in the court’s assessment of the fairness of national decisions on litigation costs. this factor is related to the vulnerable position of litigants. the concept of vulnerability has been acknowledged in ecthr case law and has developed along multiple lines, from identity-based group vulnerability to a more contextual, positional understanding (boutier, 2024). while the ecthr's approach to conceptualising vulnerability is not always entirely 106 ibid, para. 91. 107 ibid, para. 92. 108 ibid, para. 95. 109 ibid, para. 96. 110 ibid, para. 102. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 20 consistent, it nonetheless extends beyond specific groups to encompass a wider range of contexts and individuals (timmer, 2013, pp. 152-162). this broader consideration of positional vulnerability and individual circumstances provides a valuable framework for assessing the relevance of vulnerability in relation to litigation costs. thus, vulnerability may arise due to individual hardships stemming from financial difficulties, mental disability, legal incapacity, membership in a marginalised group or refugee status, as well as from gross human rights violations which led to the victimhood. in addition, national rules on legal aid or attorney schemes could also potentially contribute to the vulnerable position of the applicant in national judicial setting that can be further deteriorated by formalistic application of national rules on litigation costs. vulnerability in general plays a significant role in the court’s proportionality analysis (timmer, 2013, 164) and failing to consider the vulnerability of applicants may impose an excessive individual burden on them, potentially tipping the scale toward a violation of article 6. the court plainly stated that for the assessment of litigation costs in relation to the right of access to court ‘another factor of importance is the applicant’s individual financial situation.’111 in cindrić and bešlić v. croatia case the monthly income of the applicants’ household combined was three times less than the litigation costs awarded against them.112 in bursać v. croatia the applicant had been exempted from paying the court’s fees on the basis of his poor financial status before ordered to pay litigation costs to the state in the amount of approximately eur 8,000.113 their vulnerability was further exacerbated by their status of victims of the gross human rights violation for whom the procedure was allegedly set up.114 in laçi v. albania the applicant with monthly allowance of eur 57 was ordered to pay the stamp duty in the amount of eur 6,840 with disregard to his financial situation.115 in malahov v. moldova domestic courts established that applicant was unable to pay court fees but still made her pay the fees that were over 90 times her monthly income, which led the court to conclude that domestic courts failed to carry out a proper assessment of the applicant's financial ability.116 equally, the total lack of means in face of an otherwise excessive amount of security for costs represents ‘the key fact’ in assessment of the right to have recourse to a court.117 the financial position of applicants is generally matter of consideration of the court in cases dealing with litigation costs and access to court.118 however, there is a group 111 cindrić and bešlić v. croatia, para. 109; bursać v. croatia, para. 103. 112 cindrić and bešlić v. croatia, para. 89. 113 bursać v. croatia, paras. 16, 119. 114 bursać v. croatia, para. 92. 115 laçi v. albania, paras. 54-60. for the court the facts of the case demonstrated that the applicant was manifestly eligible for the exemption of stamp duty but was refused the privilege that eventually thwarted his claim for non-pecuniary damage caused by the death of his wife due to explosion in a military facility. 116 malahov v. moldova, application no. 32268/02, 7 june 2007, paras. 32-35. 117 aït-mouhoub v. france, para. 61. 118 this should explain why in tolstoy miloslavsky case the large amount for the security for costs due to be paid within a short period of time for submitting an appeal was not found to be contrary to article 6(1) in given circumstances. tolstoy miloslavsky v. united kingdom, paras. 62-67. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 21 of cases, as exemplified above, where financial status is of particular importance given the precarious financial hardship of applicants which singles them out as a specifically vulnerable group. the court seems to give weight to this factor not only in terms of general financial assessment but also in terms of their vulnerability. the court is ready to step in if the situation required readjustment of the general rules so that the system is adaptable enough to allow for potential exemptions or reductions in fees, either in full or in part.119 the problem of financial vulnerability is usually addressed through the schemes of legal aid that is generally available within national settings but with significant differences in terms of access and effectiveness. the court addressed a variety of ways how the lack of legal aid can potentially affect the right to a fair trial.120 the question here is whether the recourse to legal aid, not expressly mandated for civil rights cases, could outweigh the financial vulnerability and prevent litigation costs disrupting access to court. legal aid is constituted precisely for enabling effective access to court and to address precarious financial standing of potential applicants. article 47 of the eu charter of fundamental rights, which corresponds to article 6 of the european convention on human rights, provides ‘legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ while states are not under obligation to set up a legal aid scheme as such under the european convention on human rights,121 individuals are not under obligation to apply for legal aid when it exists to claim financial hardship. in the černius and rinkevičius v. lithuania case the court found that ‘legal aid as afforded by the state was an individual right and not an obligation that had to be exercised’122 – an applicant needs not rely on legal aid to claim financial vulnerability for the assessment of burden sharing of litigation,123 so the court rejected ‘the government’s suggestion that the applicants should have chosen to be represented by a person of a lesser calibre than an advocate, in order to mitigate the costs.’124 however, it is not only the financial vulnerability that figures as the rationale for assessment and allocation of litigation costs. there are other circumstances which place individuals in a vulnerable situation, such as a disability, gross violations of human rights, 119 nalbant and others v. turkey, paras. 39-45. 120 airey v. ireland; gnahoré v. france, ecthr, application no. 40031/98, 19 september 2000, para. 38; steel and morris v. the united kingdom, application no. 68416/01, 15 february 2005, para. 72; anakomba yula v. belgium, ecthr, application no. 45413/07, 10 march 2009, paras. 37–39. 121 the court points out that article 6(1) of the convention guarantees effective access to court for determining civil rights and obligations but allows states the freedom to decide on its implementation. although a legal aid scheme is one option, it is not the court's role to prescribe or mandate specific measure. see andronicou and constantinou v. cyprus, ecthr, application no. 25052/94, 9 october 1997, paras. 199-201. 122 černius and rinkevičius v. lithuania, para. 70. 123 this approach of the court was criticised in the joint dissenting opinion of the judges wojtyczek and sabato in dragan kovačević v. croatia case. 124 černius and rinkevičius v. lithuania, para. 70. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 22 membership in marginalised groups,125 or a status of alien, refugee or migrant (baumgärtel and ganty, 2024). in case of dragan kovačević v. croatia it was the applicant’s status of a person with a mental disability who was ‘evidently a vulnerable individual who needed to be legally represented to effectively protect his rights’,126 his vulnerability being further compromised by the low income consisting only of disability benefits.127 excessive litigation costs for victims of human rights violations is an unacceptable procedural consequence if it reduces compensation for violations of acts of ill-treatments committed by officials in the exercise of official duties, ‘an act prohibited by article 3, which ranks among the most fundamental provisions of the convention.’128 in bursać v. croatia the applicants incurred costs in the litigation that was set up for victims of gross human rights violations within the legal framework that allegedly removed statutes of limitations for grave breaches of human rights. with respect to costs in litigations for such human rights violations the court articulated the following principle: ‘the court observes that no international instrument explicitly prohibits ordering victims of grave breaches of fundamental human rights to bear the costs of related civil proceedings for damages in which they have been unsuccessful. however, such decisions appear to be at odds with the obligation of states to minimise the risk of re-traumatising victims of grave breaches of fundamental human rights, as set forth in key international instruments, including the united nations basic principles and guidelines on the right to a remedy and general comment no. 3 on article 14 of the convention against torture.’129 extraordinary vulnerability of migrants and refugees is the result of their personal, legal and economic insecurity. the complexity of their hardship provides several grounds for mitigating the litigation costs, but it can also represent a genuine vulnerability status. article 16(1) of the geneva convention on refuges stipulates that a refugee shall have free access to the courts of law on the territory of all contracting states. this provision implies that refugees will be granted the same status as nationals in terms of fees130 and 125 for example, women with low incomes and women in poverty have been identified by the committee on the elimination of discrimination of women as a vulnerable group in relation to the access to court. see general recommendation no. 33 on women’s access to justice, cedaw /c/gc/33, 3 august 2015. african commission on human and peoples’ rights in section g (access to judicial services) of the principles and guidelines on the right to a fair trial and legal assistance in africa (2003), requires of states special measures for rural communities, women, groups with distinct culture and groups that have been the victims of past discrimination so that their access to judicial services is not impeded inter alia by ‘the imposition of unaffordable or excessive court fees’. see also chenwi (2022). 126 dragan kovačević v. croatia, para. 36. 127 ibid., para. 72. 128 klauz v. croatia, para. 96. 129 bursać and others v. croatia, para. 98. 130 ‘however, “free access” does not have to be access free of payment—states are allowed to require refugees to pay court fees. however, art. 29 of the 1951 convention provides that these may not be higher than those that nationals would pay in the same circumstances.’ – elberling (2011, p. 939). https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 23 its application is not conditioned upon the residence in the forum state.131 paragraph 2 of article 16 provides refugees with the same treatment as nationals in countries where a refugee has a habitual residence, which is the guarantee interpreted as the right of refugees to legal assistance and legal aid to the extent they are available to nationals.132 the same provision expressly exempts refugees from duty of submitting security for costs. under the eu directive on common procedures for granting and withdrawing international protection, state parties must offer free ‘legal assistance and/or representation’ for at least the initial review or appeal following a negative status determination, although this right is subject to certain conditions and limitations.133 these instruments recognize the heightened vulnerability of refugees and implicitly of other aliens at risk such as migrants who unlawfully reside in the state of forum. based on such considerations of vulnerability, the ecthr found that the refusal by the domestic courts to grant legal aid in proceedings to a congolese woman to bring an action to contest her estranged husband’s paternity of her child, on the ground that she was not lawfully and regularly resident in belgium, amounted to a discriminatory denial of access to justice.134 several international instruments identify certain categories of human rights victims who should be protected from excessive litigation costs to ensure their effective access to justice. this demonstrates that the connection between victims' vulnerability and litigation costs has received wider recognition beyond the scope of the european convention, further validating the position of the ecthr. the eu agency for fundamental rights in its 2020 business and human rights – access to remedy report emphasized the vulnerable position of victims of business-related human rights breaches, who may face substantial financial risks when taking legal action due to high costs especially in cases against large companies. to improve access to justice, the agency made several suggestions such as making litigation costs proportionate to damages, offering free legal representation, aid and assistance, and setting limits on the losing party’s financial obligations.135 the same risks place victims who seek access to environmental justice in a vulnerable position. both these risks and victims’ position have been specifically addressed in several international instruments. for example, article 9 of the aarhus convention136 requires that states provide victims and general public with access to justice in environmental matters. the aarhus compliance committee interpreted this provision as an obligation of states to remove or reduce financial barriers to environmental justice in finding that restrictive rules on legal aid which excluded small ngos challenged ‘the inherent meaning of free legal 131 ibid., 938, paras. 26-28. 132 ibid., p. 941, para. 38. although this provision refers solely to ‘legal assistance’ it is understood that the term ‘legal assistance’ also includes legal aid. see, hathaway (2021, p. 261). 133 directive 2013/32/eu of the european parliament and of the council of 26 june 2013 on common procedures for granting and withdrawing international protection, official journal of the european union, l180/60 of 29 june 2013, articles 20–21. 134 anakomba yula v. belgium (violation of article 6(1) in conjunction with article 14). 135 eu agency on fundamental rights, business and human rights – access to remedy, report, 2020, https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-business-human-rights_en.pdf 136 unece convention on access to information, public participation in decision-making and access to justice in environmental matters, 2161 u.n.t.s. 447 (1998). https://doi.org/10.17561/tahrj.v24.9282 https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-business-human-rights_en.pdf unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 24 aid, which aims to facilitate access to justice for the financially weaker. the committee finds that instituting a system on legal aid which excludes small ngos from receiving legal aid provides sufficient evidence to conclude that the party concerned did not take into consideration the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice.’137 recently approved the eu corporate sustainability due diligence directive, part of the eu green deal, provides for corporate civil liability in relation to environment and human rights. this directive also ‘addresses certain practical and procedural barriers to justice for victims of adverse impacts, including … prohibitive costs of civil liability proceedings.’138 4. conclusion litigation costs constitute a limitation on the right of access to a court, thereby placing cost-related decisions made by national courts within the human rights framework. both the right of access to a court and the prohibition of excessive costs fall within the implicit guarantees of article 6(1) of the echr as well as other rights and freedoms protected under the convention. however, the ‛right to a court’ is not absolute; it may be subject to certain restrictions, as the administration of justice inherently requires state regulation. consequently, litigation costs are not per se incompatible with the convention. while article 6 of the echr ensures that individuals have a practical and effective right to bring civil claims before a court, it also grants states a considerable margin of appreciation in determining how to implement this guarantee, subject to compliance with the convention's requirements. this margin of appreciation, combined with a set of legitimate aims, allows for financial restrictions on access to a court. legitimate aims include the state’s interest in collecting court fees to process claims, protecting parties through cost-recovery rules that reflect the outcome of proceedings, deterring frivolous claims, and advancing broader interests in the proper administration of justice. the echr assesses whether national authorities strike an appropriate balance between, on the one hand, the imposition of litigation costs and, on the other, the safeguarding of an applicant’s right to pursue claims through the judicial system. the court’s case law demonstrates that certain factors and considerations exceed even a generous margin of appreciation in matters of litigation costs, thereby failing the proportionality test. these include excessive formalism in levying court fees, stamp duties, or security for costs that result in disproportionate financial burdens; unreasonable calculations of costs, particularly in relation to the success of claims in general and claims for non-pecuniary damages in particular; excessive and unjustified litigation costs claimed by state authorities representing the state in legal proceedings; and a failure to consider 137 ece/mp.pp/c.1/2010/4/add.2, para. 66. 138 european parliament legislative resolution of 24 april 2024 on the proposal for a directive of the european parliament and of the council on corporate sustainability due diligence and amending directive (eu) 2019/1937 (com(2022)0071 – c9-0050/2022 – 2022/0051(cod)), recital 82. https://doi.org/10.17561/tahrj.v24.9282 sanja djajić the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 25 the vulnerable position of a litigant. the identified factors serve as key signposts and benchmarks in developing a human rights-based approach, ensuring that these costs do not become an undue barrier to justice. references andrews, n. 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(2003). principles and guidelines on the right to a fair trial and legal assistance in africa. https://doi.org/10.17561/tahrj.v24.9282 unlocking justice: access to court and litigation costs under the european convention on human rights the age of human rights journal, 24 (june 2025), e9282 issn: 2340-9592 doi: 10.17561/tahrj.v24.9282 28 cedaw. (2015). general recommendation no. 33 on women’s access to justice, cedaw /c/gc/33, 3 august 2015. council of europe. (2023). resolution cm/resdh(2023)371 adopted by the committee of ministers on 7 december 2023 at the 1483 rd meeting of the ministers’ deputies. european union. (2013). directive 2013/32/eu of the european parliament and of the council of 26 june 2013 on common procedures for granting and withdrawing international protection, official journal of the european union, l180/60 of 29 june 2013. european union. 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(2011). ece/mp.pp/c.1/2010/ 4/add.2. received: 31st october 2024 accepted: 11th january 2025 https://doi.org/10.17561/tahrj.v24.9282 https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-business-human-rights_en.pdf https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-business-human-rights_en.pdf https://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdf https://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdf unlocking justice: access to court and litigation costs under the european convention on human ri 1. introduction 2. background: litigation costs as a human rights issue 3. key factors and considerations in the court’s proportionality analysis of access to justic 3.1. excessive formalism and disproportionate costs: stamp duties, court fees, security for costs 3.2. unreasonable cost calculation in claims for non-pecuniary damages 3.3. excessive and unjustified litigation costs of a state 3.4. (mis)evaluation of litigation success 3.5. disregard for the vulnerability of litigants 4. conclusion references european court of human rights legal sources, recommendations, reports disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 1 disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry leopoldo garcía ruiz1 abstract: the recurring controversy over the limits of freedom of expression is today inextricably linked to the phenomenon of disinformation and misinformation on social networks. we thus address this phenomenon in the first place, along with the strategies deployed in the last decade to fight it. the controversy is then analyzed in the context of the recent covid-19 pandemic and the institutional response it has generated worldwide, with a main focus on the situation in the united states and the eu. finally, a critical examination of this response follows, along with some facts and reflections regarding the current post-pandemic scenario. keywords: disinformation, misinformation, freedom of expression, right to information, fact-checking, censorship, covid-19. summary: 1. introduction: the crisis of the rule of law as a context. 2. freedom of expression, disinformation and misinformation: a preliminary approach. 2.1. narrowing down the phenomenon of disinformation. 2.2. the fight against disinformation online: fact-checking agencies and other strategies. 3. the covid-19 pandemic information crisis and its institutional management. 3.1. from the un to youtube: a multilevel response to the infodemic. 3.2. was there content moderation, or rather censorship? 3.3. lessons to be learned from this information crisis. 4. some facts and thoughts on disinformation, censorship and freedom of expression in the post-pandemic era. 1. introduction: the crisis of the rule of law as a context it is almost commonplace by now to say that respect for the rule of law on our planet has been sub-optimal for a while, and that the political and legal response to the covid-19 pandemic has only aggravated the situation2. this is, in fact, a crisis that had been brewing beforehand with the rise of political populism, the increasingly frequent recourse to accelerated or emergency procedures in the drafting of laws, the growing difficulties in exercising constitutional control over them, the erosion of the separation of powers, the emerging digital authoritarianism, etc. the reaction to the pandemic has not only increased the contempt for these formalities, checks and balances, but has also brought with it a correlative decline in the protection of fundamental civil and political rights (privacy, labor, suffrage, religious freedom, freedom of movement and assembly, 1 associate professor of legal philosophy, ceu cardenal herrera university, valencia, spain (leopoldo. garcia@uchceu.es). 2 check indexes https://www.icnl.org/covid19tracker/ and https://findings2021.monitor.civicus.org/in-numbers. html, plus the editorial note at https://www.economist.com/international/2022/06/07/the-pandemic-hasaccelerated-a-global-decline-in-the-rule-of-law. these and all subsequent hyperlinks have been revised as of july 22nd, 2023. mailto:leopoldo.garcia@uchceu.es mailto:leopoldo.garcia@uchceu.es https://www.icnl.org/covid19tracker/ https://findings2021.monitor.civicus.org/in-numbers.html https://findings2021.monitor.civicus.org/in-numbers.html https://www.economist.com/international/2022/06/07/the-pandemic-has-accelerated-a-global-decline-in-the-rule-of-law https://www.economist.com/international/2022/06/07/the-pandemic-has-accelerated-a-global-decline-in-the-rule-of-law disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 2 freedom of enterprise, etc.), almost always with the same leitmotif: it is preferable to minimize risks, and so prioritize security over freedom. it is no coincidence, for example, that in the united states, during the pandemic, the use of the expression “(out of/in) an abundance of caution” became widespread in order to justify numerous restrictive decisions (see gray, 2020; kesler, 2020). this is a paternalistic reflex that can be traced back to the reaction of western countries to the 9/11 attacks, but now seems to be reaching higher levels worldwide (van aardt, 2022). obviously, this is a process with many nuances and variations. to begin with, the erosion of the rule of law and of traditional civil and political rights are much more blatant in authoritarian and semi-authoritarian regimes than in standardized democracies, where respect for the law and a strong rights culture seem to be in place, and one can only detect this drift by using a magnifying glass. however, the expansion of governmental power during the pandemic has also raised open reservations among citizens and experts in these societies as well (as to spanish legal doctrine alone, see recent studies by biglino and durán, 2021; martínez-sicluna and carabante, 2022; or blanquer, 2023). in this sense, one could say that the european union publishing an annual report on the observance of the rule of law in its member countries since 2020 is not good news exactly. as we will try to show here, freedom of expression must surely be counted among the rights affected by this decline, along with others directly associated to it such as freedom of thought and opinion, the right to disseminate and receive information, or the public’s expectation that authorities behave transparently. again, it is true that freedom of expression seems to be theoretically guaranteed in the west (see e.g., european commission, 2020b: §2.3), and that, using the pandemic as a pretext, attacks on this right in other parts of the planet have been deemed much more severe3 (even leading to a famously inventive “blank sheet” strategy by demonstrators against the harsh covid policies in china4). however, none of this prevents us from observing a slow but net decline in the quality of freedom of expression and other related liberties and rights in our very own environment (see, e.g., gosztonyi, 2023). the following is an attempt to argue how and why this situation has come about. 2. freedom of expression, disinformation and misinformation: a preliminary approach 2.1. narrowing down the phenomenon of disinformation the contemporary on-going debate about freedom of expression and its limits is inextricably linked to the phenomenon of disinformation. in this sense, one may as well 3 extensive reports at https://www.voanews.com/a/covid-19-hit-press-freedom/6137699.html, and also at https://features.hrw.org/features/features/covid/index.html. the un human rights council reported these attacks from the beginning as well, with express reference to countries such as belarus, cambodia, china, iran, egypt, myanmar or turkey: https://www.ohchr.org/en/press-releases/2020/07/covid-19-pandemic-exposesrepression-free-expression-and-right-information. as a matter of fact, a sort of digital authoritarianism has been underway in china and other countries years before the pandemic arrived (see shahbaz, 2018). 4 https://www.bbc.com/news/world-asia-china-63778871. https://www.voanews.com/a/covid-19-hit-press-freedom/6137699.html https://features.hrw.org/features/features/covid/index.html https://www.ohchr.org/en/press-releases/2020/07/covid-19-pandemic-exposes-repression-free-expression-and-right-information https://www.ohchr.org/en/press-releases/2020/07/covid-19-pandemic-exposes-repression-free-expression-and-right-information https://www.bbc.com/news/world-asia-china-63778871 leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 3 consider that no action aimed at disinforming should be protected under the umbrella of freedom of expression. if such strategies are tolerated, one would add, the possibility of being adequately informed is endangered, freedom of thought and opinion are conditioned, and decision-making processes, both individual and collective, end up being adulterated. but what do we exactly mean when we talk about disinformation? in this regard, an academic distinction has been established for some time now among three neighboring notions: disinformation in the strict sense, misleading information or misinformation, and malicious information or malinformation (wardle and derakhshan, 2017: 20 ff.). the concept of disinformation specifically alludes to the creation and mass dissemination of verifiably false or incorrect information in the knowledge that it is so and with the intent to deceive its recipients5. whoever disseminates misinformation, on the other hand, spreads wrong information but does so unconsciously, without intent to deceive. finally, malinformation would include all those communications that, beyond their veracity, are intended to offend or to cause certain harm to others: malicious leaks, hate speech, online harassment strategies, etc.6 disinformation includes, therefore, a material element –the falseness of what is disseminated–, a cognitive element –being aware of its falseness–, and a volitional element –the intention to deceive or confuse– (botero marino, 2017: 69-70). the popular expression fake news picks up a very similar idea since the term fake implies not only objective falseness but also imposture. this volitional nuance, however, is not always stressed enough, and may also get lost in translation to other languages (e.g., noticias falsas in spanish), thus making it difficult to distinguish between disinformation and misinformation. maybe for this reason, and because of the wear and tear that it has been suffering as a weapon in the political contest, the expression fake news tends to be avoided in the most recent academic literature (as magallón-rosa, 2022: 52 points out). needless to say, disinformation is not a new phenomenon, given that numerous political propaganda practices developed throughout history more than fit into this description. what is new, however, is the way in which “digital technology has enabled pathways for false or manipulated information to be created, disseminated and amplified by various actors for political, ideological or commercial motives at a scale, speed and reach never known before” (un human rights council, 2021: i. 2). 5 this definition has been endorsed by international documents on the subject such as un-osce-oasachpr, 2017. the preambles to the 2018 eu code of practice on disinformation (european commission, 2018) and to the strengthened code of practice in disinformation 2022 (european commission, 2022) refer to disinformation in similar terms, as the false or misleading content that is spread with an intention to deceive or secure economic or political gain and which may cause public harm. both preambles go on to clarify that disinformation does not include misleading advertising, reporting errors, satire and parody, or clearly identified partisan news and commentary, and is without prejudice to binding legal obligations, self-regulatory advertising codes, and standards regarding misleading advertising. misinformation, in turn, is defined in the 2022 strenghtened code as the false or misleading content shared without harmful intent whose effects can still be harmful (see european commission, 2022, preamble, note 7). 6 the analysis of malinformation, its various manifestations and implications and its compatibility with freedom of expression far exceeds the limits of this paper, focused only on addressing the phenomenon of misand disinformation during the covid-19 pandemic. disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 4 the transition from paper press to social media as the preferred form of access to information has been decisive in the rise of disinformation. social networks first transformed our relationship with the media, then the way of doing politics, and now are the main stage for cultural and ideological battles (magallón-rosa, 2022: 62). moreover, the high potential diffusivity of online disinformation is a powerful weapon in contemporary hybrid wars, and so, counteracting this disinformation has become part of the national security policies of states. among the events that would explain the evolution of disinformation and its combat throughout this century we should probably mention, at least, the so-called global war on terror started by the bush administration after 9/11, the social and political upheavals and revolutions of 2008-2012 (arab spring, occupy wall street, the spanish 15-m movement, etc.), the electoral processes of 2016 (brexit referendum, election of trump as u.s. president), the covid-19 pandemic, and the russian invasion of ukraine (magallón-rosa, 2022: 53). the sheer variety and complexity of these events –on which it is not possible to delve right now– should lead us to a first conclusion: disinformation and propaganda can be and indeed are used by political and social actors across the ideological spectrum and in any political regime. and in all these cases, naturally, those who aspire to control the discourse will try to pass off their critics as dangerous disinformers. it is not difficult, therefore, for this struggle to evolve into a spiral of mutual accusations, where the desire to selflessly find the truth ends up being the first victim. 2.2. the fight against disinformation on the web: fact-checking agencies and other strategies however, it is obvious that misinformation is an evil to be avoided, and that the possibility of accessing truthful and contrasted information is something as essential as it is urgent in our digital era. it is in this context that –among other available means of combatting disinformation, such as legal regulation or the setting of codes of practice– online fact-checking agencies have been emerging in recent times. needless to say, scientists and professional journalists have always prided themselves on verifying their data. but that was, and still is, a task previously performed by those responsible for the information, whereas the verification now provided by these agencies follows the dissemination and is external to it. the emergence of these entities took place in the united states at the beginning of the century, along with the expansion of the web 2.0. in 2015, the poynter institute for media studies established the international fact-checking network (ifcn), which today brings together and supervises the performance standards of more than a hundred agencies7. the aftermath of the controversial electoral processes of 2016 triggered the implementation of these organizations worldwide, and especially in the rest of the 7 https://www.poynter.org/ifcn/. https://www.poynter.org/ifcn/ leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 5 anglo-saxon world, continental europe and latin america (where there is a regional network, latam chequea, incardinated in the ifcn)8. in fact, these agencies do not so much pursue malicious disinformation as the false information that underlies it, since it is easier to verify the data transmitted than the dispatcher’s intent, and the potential harm to the receiver is similar in both cases. this is how the fight against both phenomena has now been unified (and the expression misand disinformation has become commonplace). but these agencies, as we were saying, aim to give credit to information that is disseminated by others, mainly blogs, digital media –including websites of legacy media, such as newspapers, magazines, radio broadcasting companies and tv networks, which often also have internal verification systems– and social networks. among the latter, platforms like facebook, youtube, whatsapp or instagram are the ones that, due to their billions of users, are exposed to a greater risk of misinformation, and also the ones that have been taking several self-regulatory measures, and/or incorporating fact-checkers in a more visible way9. along these lines, they have been adopting several strategies (botero marino, 2017: 82-83): algorithms to verify sources, images and keywords; notifications and flags; more or less overt deferral of publications and users deemed as suspicious (ranking, visibility filtering); and, ultimately, removal of publications and suspension of accounts (de-platforming). the existence of these moderation policies has famously raised thorny questions: if they take on editorial functions, do the networks really act as mere intermediaries among users who share content? they are private companies for sure, but also, and increasingly so, new virtual public squares. does their moderation imply then, as some have wondered (see oremus, 2022), a modern-day kind of censorship, distinct from and complementary to that of the public authorities? what role should the fundamental rights of users, such as freedom of expression, due process, effective judicial protection, etc., play in this context? undoubtedly, the introduction of external fact-checkers brings respectability to the editorial work of the networks. and although some have raised objections about their methodology and effectiveness (e.g., uscinski & ryden, 2013), or even about their transparency and independence (see notes 38-39 below), there is nothing that should prevent us prima facie from qualifying the work of these agencies as laudable and even 8 https://chequeado.com/latamchequea/#/. 9 in 2016, google news launched the “fact check” label to identify articles whose information had been verified by news publishers and/or fact-checking organizations. that same year facebook created an external verification program for its publications, which has been joined in each country by various organizations (e.g., in march 2019 facebook reached an agreement in spain with the agencies maldita.es, newtral and afp spain). twitter, on its part, did not externalize its moderation system but mostly relied on internal workers. all in all, it is worth highlighting the peculiar schizophrenia of the networks in this matter, as it is well known how their algorithms not only personalize content but also tend to feed sensationalist publications to prolong the attention of their users in order to monetize it. this business model is, therefore, at the root of the problem. https://chequeado.com/latamchequea/#/ disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 6 necessary. the problem comes when their verifying zeal, combined with the moderating action of the platforms, acquires potentially censorious tones. because it is not the same to provide accurate data in order to expose an easily refutable hoax as it is to filter or suppress a debatable information or a controversial opinion. and yes, it is wholly reasonable that misleading online information, malicious or not, is exposed and sometimes even reported or eliminated, but when and how? who watches the watchers, so that the freedom of expression of users/citizens and the free formation of public opinion are not trampled along the way? it should be remembered at this point that, in principle, and in the light of international law, states are obliged to protect the right of everyone to seek, receive and disseminate any type of information or ideas, regardless of their content10 and even of their veracity, impartiality or correctness11, for even doubtful information and controversial opinions are useful to strengthen the vigor of democratic debate. this is something, in fact, that has been at the basis of the liberal state since its formation (magdaleno alegría, 2006: 42-56). the only speeches radically rejectable per se would be the apology of war or hatred when they represent a direct incitement to violence, and the (misnamed) child pornography (see botero marino, 2017: 71-72 and the quotes therein). apart from that, maliciously misleading information is only legally prosecutable when it appears as a necessary means to violate certain rights of others (as in cases of slander or fraud, where someone’s honor or assets are damaged; or in certain crimes against the market and consumers: see magdaleno alegría, 2006: 292 ff.; espaliú-berdud, 2022, 8-9). in other words: unless they incur in objective contents typical of certain limited speeches or constitute an essential means to commit an illegal action, neither disinformation nor misinformation are punishable by law. for more than a decade, social networks like facebook, twitter or youtube have been deleting posts for “glorifying violence” or offering “harmful and dangerous content", categories that are much more vague and restrictive of freedom of expression than what is usually prescribed by law12. this is probably the reason why controversies about censorship in the social networks proliferated during the second half of the last decade. and then the pandemic arrived. 3. the information crisis associated with the covid-19 pandemic and its institutional management the covid-19 pandemic has consolidated the undeniable political interest in the fight against misand disinformation, now decisively linked not only to national security 10 see article 19 of the universal declaration of human rights; art. 10.1 of the european convention on human rights; art. 19.2 of the international covenant on civil and political rights; art. 13.1 of the american convention on human rights; and art. 11 of the charter of fundamental rights of the eu. 11 iachr, advisory opinion oc-5/85, §67 ff; un-osce-oas-achpr, 2017: 2a. the case law of the echr is abundant here: e.g., times newspapers ltd v. united kingdom of 10 march 2009; renaud v. france of 25 february 2010; or brzezinski v. poland of 25 july 2019. in spain, among others, see stc 214/1991 of november 11, or stc 176/1995 of december 11; in the usa, coates v. city of cincinnati, 402 u.s. 611 (1971); united states v. alvarez, 567 u.s. 709 (2012), or matal v. tam, 582 u.s._ (2017). 12 e.g., the standard set in the united states since brandenburg v. ohio 395 u.s. 444 (1969) refers to speech intended to incite or produce, with some degree of success, an imminent unlawful conduct. leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 7 but also to public health. this task has been framed within a huge, commendable effort by the authorities to guide the population towards reliable sources on the reality and possible origin of the virus, its various ways of contagion, the strategies to prevent and fight it, etc. however, and most regrettably, there has not always been coherence between the proclaimed principles and their execution. as we will try to show here, the whole process has been tinged with an excessive paternalism (van aardt, 2022) that has discouraged and even repressed legitimate debate. 3.1. from the un to youtube: a multilevel response to the infodemic the fear and uncertainty that followed the initial spread of the sars-cov-2 virus was the occasion for unfounded rumors of all kinds (something that the who directorgeneral tedros adhanom ghebreyesus soon described as an infodemic13), and also for severe attacks on freedom of speech and press in certain countries, duly reported at an international level (un-osce-iachr, 2020). this information crisis triggered an attempt of coordinated response by international organizations, states, associations, fact-checking agencies, platforms and the media. initially, guidance came from institutions such as the un/who, the council of europe and the european union. the world health organization guidelines were the basic template for action by all the world's authorities in their fight against covid-19. in addition, and while acknowledging the dangers of disinformation as a weapon, the un human rights council specifically recalled the importance of ensuring freedom of expression in two reports by special rapporteurs david kaye and irene khan. the former, in april 2020, called for academic and scientific freedom, including freedom of expression and the freedom to seek, receive and impart information (un human rights council, 2020: ii. 12); a year on, the latter urged states to recalibrate their responses to disinformation, and to foster free, independent and diverse media (un human rights council, 2021: vi. 85-93). council of europe commissioner for human rights dunja mijatovic also urged that measures to combat disinformation around covid-19 should not undermine press freedom (council of europe, 2020). in 2020, the eu parliament drafted two important resolutions on this crisis. among other proposals, the first one, of 17 april, urged to establish a european information source to ensure that citizens had access to accurate and verified information, and called on social media companies to put in place proactive measures to stop disinformation and hate speech in relation to covid-19 (european parliament, 2020a: §54); while the second one, dated 25 november, called for greater collaboration between online platforms and law enforcement authorities, stressing that the removal of illegal content is done quickly and subjected to safeguards, such as judicial review (european parliament, 2020b: §35). in turn, the european commission issued a communication on 10 june 13 his words at https://www.who.int/dg/speeches/detail/munich-security-conference. a typology of these unfounded rumors can be found in ramón-vegas et al., 2020. https://www.who.int/dg/speeches/detail/munich-security-conference disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 8 (european commission, 2020a)14 in which, after identifying the main challenges posed by the covid infodemic, asked for more transparency and a greater role for platforms during the crisis, declared its support for fact-checkers and researchers, and at the same time recalled the need for authorities to be accountable for their actions and to guarantee freedom of expression and democratic debate. right from the outset, states had the direct responsibility for the on-site control the pandemic (de la sierra, 2020: 38-41), and that was also the case when it came to address the disinformation generated around it. some governments, however, took advantage of the circumstances precisely to disinform, continuing with their usual propaganda strategies (e.g., russia, china, iran, north korea). the rest opted for an increasingly strict control of public opinion, although with a singular difference: while in autocracies there were internet shutdowns and persecution of journalists, in democratic states this control was not against platforms and media, but through them. let us briefly take spain as an example. in april 2020, the spanish government openly acknowledged that it was monitoring social networks to detect potentially dangerous or criminal speech and disinformation campaigns15. according to the minister of the interior such a monitoring had no political purpose at all, and it was the platforms themselves, following their own protocols, that eventually decided on the removal of the publications. yet months later, the orden pcm 1030/2020 established a plan to fight disinformation with a control structure directly dependent on the government16. the goal, approved by the national security council, was to counteract “the deliberate, large-scale and systematic spread of disinformation, which seeks to influence society for interested and spurious purposes”, and the justifying context, the infodemic generated by the covid-19 crisis17. among the fact-checking agencies, the ifcn centralized strategies against misand disinformation at a very early stage through the so-called “coronavirusfacts alliance”18. 14 for their part, the eu rule of law reports of 2020-2022 make numerous considerations on freedom and pluralism of information but barely mention disinformation. 15 see in this regard https://www.elmundo.es/tecnologia/2020/04/15/5e95fe5dfc6c8305188b4644.html. such cyber-patrolling onand offline has become routine for many states, and has already been denounced (see, e.g., amnesty international, 2020). 16 neighboring countries such as italy, france, belgium and germany have not gone that far. france, in particular, decreed in june 2020 that outlawing online content by administrative means is unconstitutional: https://www.conseil-constitutionnel.fr/decision/2020/2020801dc.htm. 17 my translation. see orden pcm/1030/2020, de 30 de octubre, por la que se publica el procedimiento de actuación contra la desinformación aprobado por el consejo de seguridad nacional, available at: https:// www.boe.es/eli/es/o/2020/10/30/pcm1030. although it has not been formally applied yet, the relevance and legitimacy of that order are being subjected to severe criticism: thus, peralta gutiérrez, 2021; or de la nuez, 2022. 18 check https://www.poynter.org/coronavirusfactsalliance/, where it can be read: “the alliance was launched in january 2020 when the spread of the virus was restricted to china but was already causing rampant misinformation globally”. https://www.elmundo.es/tecnologia/2020/04/15/5e95fe5dfc6c8305188b4644.html https://www.conseil-constitutionnel.fr/decision/2020/2020801dc.htm https://www.boe.es/eli/es/o/2020/10/30/pcm1030 https://www.boe.es/eli/es/o/2020/10/30/pcm1030 https://www.poynter.org/coronavirusfactsalliance/ leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 9 the major social networking companies, for their part, issued a joint statement in march 2020 committing to tighten their content moderation policy (douek, 2020), automating it to a greater extent in the face of lockdowns, and admitting that this would entail certain mismatches19. twitter went on to consider misleading any posts that contradicted the guidance of health authorities20. youtube pledged to remove content contrary to official sources and, like twitter, set out a long list of examples21. in all cases, the commitment implied taking down information and opinions held to be false, whether or not there was malice on the part of the author of the publication. 3.2. was there content moderation, or rather censorship? international organizations and states requested a greater role for fact-checkers and platforms to tackle the covid-19 infodemic, and they got it. but all of them also pledged to act with transparency and respect for freedom of expression and democratic debate, and they were not so careful at that. they certainly refuted a fair amount of nonsensical information (bleach as a remedy for covid, the alleged microchips inside the vaccines, and some other unfounded rumors clearly linked to the propaganda wars) and promoted, as planned, the messages of the health authorities. but whether out of their own bias or out of docility to power, platforms, media and agencies also insistently aborted some legitimate scientific debates –even more legitimate, if possible (as has been noted by niemiec, 2020: 2), because it is such an unknown disease– and disqualified its promoters. some dubious data were taken as true, and others were leaked that the public had a right to know but that contradicted the narrative of the states and the who. in short, content that could not be peacefully classified as disinformation or misinformation was suppressed. was that censorship, strictly speaking? where the suppression responded to more or less veiled instructions from the political power, it clearly was. in the other cases it may be thought so too, since the classic definition of censorship as something prior and exclusively linked to a public authority is already proving inadequate (garcía morales, 2013). it certainly must be inadequate for a time like ours, in which the convening capacity and the consequent volume of content of the most successful platforms have turned them into true postmodern agoras –something that the platforms themselves, by the way, often boast about (niemiec, 2020: 1). the account of the more evident cases begins in the united states, where some very well-qualified scientists argued from day one against the official health guidelines22. university professors such as john ioannidis (stanford), stephen baral (johns hopkins), jay bhattacharya (stanford), sunetra gupta (oxford) or martin kulldorff (harvard) opposed indiscriminate lockdown policies to address the pandemic. these last three academics, in 19 https://about.fb.com/news/2020/12/coronavirus/#content-review. 20 https://help.twitter.com/es/rules-and-policies/medical-misinformation-policy. even some presidents of government were reprimanded: https://www.theverge.com/2020/3/30/21199845/twitter-tweets-brazilvenezuela-presidents-covid-19-coronavirus-jair-bolsonaro-maduro. 21 https://support.google.com/youtube/answer/9891785?hl=es&hl=es&ref_topic=9282436. 22 a compendium of both versions (official and dissenting) in liester, 2022. https://about.fb.com/news/2020/12/coronavirus/#content-review https://help.twitter.com/es/rules-and-policies/medical-misinformation-policy https://www.theverge.com/2020/3/30/21199845/twitter-tweets-brazil-venezuela-presidents-covid-19-coronavirus-jair-bolsonaro-maduro https://www.theverge.com/2020/3/30/21199845/twitter-tweets-brazil-venezuela-presidents-covid-19-coronavirus-jair-bolsonaro-maduro https://support.google.com/youtube/answer/9891785?hl=es&hl=es&ref_topic=9282436 disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 10 addition, led a formal declaration on the matter and presented it publicly in great barrington, massachusetts on october 4, 202023. later on, bhattacharya himself, prof. aaron kheriaty from uc irvine and brett giroir (former director of the food and drug administration) among others defended the superiority of natural immunity over vaccines, kulldorff wrote about the inconvenience of vaccinating children and adolescents, etc. prestigious doctors like jamie metzl, or robert redfield (ex-director of the u.s. centers for disease control and prevention), seriously doubted the natural origin of the virus, while others including robert malone and andrew bostom warned about the side effects of mrna vaccines. all of their statements and claims were directly qualified as erroneous by the authorities and the fact-checking agencies, and all of them were (and mostly continue to be) either attacked or ignored by the media and the academic establishment24. there were journalists who echoed these expert dissenting voices in the scientific community: notable among them was alex berenson, whose twitter account ended up being suspended because of it. republican politicians such as lauren bobert and marjorie taylor green or democrats like ro khanna also experienced the moderation of social networks on this matter. since the end of 2022, and after the purchase of twitter by the controversial elon musk, investigative journalists including matt taibbi, bari weiss, david zweig, michael shellenberger, or alex berenson himself25, have been receiving access to the company's internal communications and publishing the twitter files, where they have documented the censorship previously exercised in that social network, which included strict visibility filtering, removal of tweets, suspensions and account closures. and what is more important, they have convincingly connected it to the covert action by programs such as the stanford internet observatory’s virality project or the atlantic council’s digital forensic research lab, pharmaceutical companies like pfizer or johnson & johnson, and, in particular, by several departments and agencies of the federal government itself (homeland security, fbi, cdc, fda), first during trump's presidency and then in biden's tenure as well26. specifically, installments 1027, 1328, 1829, 1930 and 2031 of this series prove in detail how 23 https://gbdeclaration.org/. it has subsequently come to light that google altered its search algorithm to decrease the visibility of the text: https://www.spiked-online.com/2020/10/12/why-has-google-censoredthe-great-barrington-declaration/, and that the national institutes of health quietly encouraged a few days later a counter-declaration (see magnes & harrigan, 2021) which became effective on october 14th: https:// www.johnsnowmemo.com/john-snow-memo.html. 24 it is only fair to add that there were some respectful and constructive debates as well, such as this one organized at johns hopkins university: https://www.youtube.com/watch?v=p78rlwjskpa&t=6s. 25 taibbi and weiss, by the way, have already had serious disagreements with musk in the last months that give food for thought as to whether the tycoon's interest has more to do with refloating his own social network than with freedom of expression, but none of this invalidates their investigations. 26 see also one of these journalists’ testimony before the u.s. congress about this “censorship industrial complex” in shellenberger, 2023, esp. 4-8, 22, 45-46. 27 https://twitter.com/davidzweig/status/1607378386338340867. 28 https://twitter.com/alexberenson/status/1612526697038897167. 29 https://twitter.com/mtaibbi/status/1633830002742657027. 30 https://twitter.com/mtaibbi/status/1636729166631432195. 31 https://twitter.com/thackerpd/status/1649037538663727106. https://gbdeclaration.org/ https://www.spiked-online.com/2020/10/12/why-has-google-censored-the-great-barrington-declaration/ https://www.spiked-online.com/2020/10/12/why-has-google-censored-the-great-barrington-declaration/ https://www.johnsnowmemo.com/john-snow-memo.html https://www.johnsnowmemo.com/john-snow-memo.html https://www.youtube.com/watch?v=p78rlwjskpa&t=6s https://twitter.com/davidzweig/status/1607378386338340867 https://twitter.com/alexberenson/status/1612526697038897167 https://twitter.com/mtaibbi/status/1633830002742657027 https://twitter.com/mtaibbi/status/1636729166631432195 https://twitter.com/thackerpd/status/1649037538663727106 leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 11 some of the characters referred above (bhattacharya, kulldorff, bostom, giroir, berenson, etc.) and many other users were shadow-banned and/or censored by twitter at the request of one or more of these collusive actors for sharing heterodox opinions on the origin of the sars-cov-2 virus, the need for covid vaccination passes, the importance of natural immunity, or for disseminating scientific studies on the side effects of the new vaccines. at the request of the u.s. federal authorities, even dissenting publications that relied upon official or government-endorsed data were removed, as were others whose veracity was privately acknowledged but which could potentially fuel vaccine hesitancy, thus jeopardizing the campaigns that were taking place at the time32. in addition to these stories, an extra installment of the files by andrew lowenthal recently dealt with similar covid-related censorship requests by the australia's federal department of home affairs33. platforms like google, linkedin, facebook, microsoft or pinterest adopted similar policies during this time, and some of them were also part of several government meetings34 that, apparently, slid towards censorship. in fact, and while another journalistic investigation underway points to the cdc requesting to suppress content on facebook and instagram (soave, 2023; also, shellenberger, 2023: 44) , the house of representatives judiciary committee chairman released on july 27, 2023 a series of unredacted emails provided by meta executives, showing the massive pressure that the white house and other entities put on the social media giant during the pandemic. in europe, where the institutional scrutiny of digital content moderation has usually been more intense than in the u.s. –and also more transparent35–, there is a lack of data to affirm that such collusion has taken place. nevertheless, the few public dissenters in the european scientific and academic community have met with similar reprobation. the list here has included assem malhotra, carl heneghan, tom jefferson or karol sikora in the uk, and already within the eu, didier raoult, agnès buzyn, christian perronne and luc montagnier in france; knut wittkowski in germany; mattias desmet in belgium; thomas lars benfield in denmark; scientists traditionally critical of the pharmaceutical industry such as peter gøtzsche, also in denmark, or joan-ramon laporte in spain; philosophers such as giorgio agamben and jordi pigem; biologists like jon ander extebarria... some of them opposed the mass lockdowns, others the vaccination policies or the indiscriminate use of masks, etc. it is not necessary to share any of their statements, more or less refutable, to recognize that almost all of them have been, not just answered back, but also fiercely discredited on and off the internet (nogrady, 2021). this attitude was also reproduced, by the way, in the opposite 32 although it has been noted that some parts of the twitter files may contain inaccuracies or loose ends (see https:// www.youtube.com/watch?v=a597e6wv_xg), the information they provide on the handling of the pandemic is particularly solid and documented. without any possible rebuttal at hand as they are faced with original sources, the tactic of the wrongdoers –government, social networks, legacy media– has been to attack the motivations of the journalists (even threatening them in some cases: see, e.g., https://nypost.com/2023/04/20/democrat-staceyplaskett-threatens-twitter-files-journalist-with-prison/) and claiming that the information has been cherry-picked, but without providing any counterevidence to contextualize what is being reported there. 33 https://twitter.com/naffects/status/1661104541004079107. 34 https://www.reuters.com/article/us-health-coronavirus-white-house-exclus-iduskbn2aj1sw. 35 see the directive 2000/31/ec on electronic commerce and, more importantly, the new eu digital services act (a.k.a. regulation (eu) 2022/2065 on a single market for digital services) referred below. https://www.youtube.com/watch?v=a597e6wv_xg https://www.youtube.com/watch?v=a597e6wv_xg https://nypost.com/2023/04/20/democrat-stacey-plaskett-threatens-twitter-files-journalist-with-prison/) https://nypost.com/2023/04/20/democrat-stacey-plaskett-threatens-twitter-files-journalist-with-prison/) https://twitter.com/naffects/status/1661104541004079107 https://www.reuters.com/article/us-health-coronavirus-white-house-exclus-iduskbn2aj1sw disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 12 direction: in sweden, which opted for a less restrictive health policy, those who were critical of it were sometimes met with identical hostility (lenzer and brownlee, 2020). 3.3. lessons to be drawn from this information crisis in the words of archibald cox (a harvard law professor who, quite interestingly, served as solicitor general of the united states in the 1960s and then as a special prosecutor for the watergate case): “no man, no committee and surely no government has the infinite wisdom and disinterestedness to accurately and unselfishly separate what is true from what is debatable, and both from what is false” (cox, 1986: 8). on one hand, it is only natural and legitimate that in a situation of serious risk to public health and safety the authorities should demand compliance with their health policies. likewise, they should try to counteract the circulation of unfounded rumors that may compromise those policies. but what these authorities should not claim or take for granted by any means is a scientific infallibility that they do not possess, and use it to prevent or to get in the way of reasonable disagreements among experts (cuadros aguilera, 2022: 51). even more so when they are confronted with a new pandemic, as it has been the case with covid-1936. this unwise approach to the problem of disinformation on scientific issues seriously limits the possibility of correcting critical errors later on (niemiec, 2020: 2-3), damages the respectability of science itself, making it too politicized, and undermines society's confidence in it. the striking effort to silence scientific debates that we have seen in this pandemic has turned the authorities' point of view into official truth, so much so that challenging it has triggered media, professional and even personal persecution of dissidents (shir-raz et al., 2022), whether they were scientists or not, as the well-known djokovic v. australia case made clear a little while ago (garcía ruiz, 2022). curiously enough, on some issues this point of view has been mutating, as it were: for example, at first the usefulness of masks or child vaccination was discarded, and then both were massively adopted; now we read claims about the origin of the virus or the efficacy of vaccines that until not long ago were openly repressed, etc. what is most striking, in either case, is the conviction with which the slogans are transmitted, with no room for disagreement. in the worst-case scenario, some of the criticisms made by the dissenting experts could have possibly been labeled as misinformation, but never as disinformation. in fact, sometimes they were hypotheses as plausible –or even more so– than the official position (e.g., the inappropriateness of vaccinating children and adolescents), and they were coming from reputed professionals with no conflict of interest. in contrast, the twitter files and other communications now uncovered in the course of legal proceedings37 are clearly 36 prof. martin kulldorff has noted how in previous contemporary pandemics –influenza, polio, asian flu, swine flu– the scientific debate was not closed, nor were mass lockdown measures adopted: in fact, public health protocols for pandemics prior to covid-19 advised isolation only for the sick and the most vulnerable. check https://www.spiked-online.com/2020/10/09/lockdown-is-a-terrible-experiment/. 37 most notably, judicial watch v. u.s. department of health of human services, 1:21-cv-00625 (d.d.c.); dressen v. flaherty, 3:23-cv-00155 (s.d. tex.); missouri v. biden, 3:22-cv-01213 (w.d. la.); and berenson v. biden, 1:23-cv-03048 (s.d.n.y.). https://www.spiked-online.com/2020/10/09/lockdown-is-a-terrible-experiment/ leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 13 showing that, at least in the united states, it was rather the actions of federal authorities, pharmaceutical companies, fact-checking institutions and technological platforms that engaged in censorship and even disinformation (shir-raz et al., 2022). if the authorities and pharmaceutical companies were perhaps motivated by an interest in controlling the discourse, the role of tech platforms and fact-checkers in all this is more complicated to describe. in the case of the former, it is a fact that their business model fosters sensationalism to a certain extent, and that counteracting disinformation goes in the opposite direction. it is also a fact, however, that even before the pandemic they were accused of filtering content with hardly any procedural guarantees and not infrequently with political implications involved (vogels et al., 2020). those moderation policies, it seems, are even yielding to the dictates of governments now. as for the factcheckers, the real problem is not so much the nature of their activity, which can be easily justified, as their actual independence38. in addition to that, there is still no regulation regarding the methodologies used in this verification process, which inevitably raises doubts about its transparency and/or impartiality. be that as it may, urging agencies and networks to stop disinformation is, in practice, inviting them to be overzealous, especially when publications are monitored either by reinforced algorithms39, or by people with résumés that let show some evident biases and/or lower scientific qualifications than those of the disavowed (clarke, 2021). one way or another –and this is what should raise suspicions– the verdict of fact-checking agencies and social networks on whether or not to allow covid-related publications during the pandemic simply never contradicted the who/cdc/eu official guidelines. the first victim here has been, naturally, the freedom of expression and opinion of dissenters, which has been rudely censored. by the way, this has also led to considerable self-censorship, in medical professionals and academics as well as in ordinary citizens (the famous chilling effect, in an expression coined by justice william j. brennan; see pech, 2021 here). after such a scenario, it is therefore necessary to fine-tune the jurisdictional protection of freedom of expression, and even to urgently review the legal definition of censorship, in order to recover an open and frank debate, not only in health issues, but in many other fields. the new conditions under which public opinion is being formed in our century seem to demand it. the second major victim has been the citizens' right to information, which the public authorities must always strive to ensure, while creating the conditions for a plural democratic debate and being themselves thoroughly accountable (see moretón toquero, in biglino and durán, 2021: 221-252). leaving statistics or geolocation issues aside, there are other major concerns to be resolved in this regard, such as the opacity of the agreements signed with some pharmaceutical companies –which were denounced last 38 it is widely known that several technology companies and foundations with interests in the pharmaceutical industry are financing the ifcn (https://www.poynter.org/international-fact-checking-network-transparencystatement/), or that there are countries with public-funded fact-checking agencies (such is the case of efe verifica in spain). 39 https://maldita.es/malditatecnologia/20200428/redes-sociales-automatizacion-contenidos-normas/. https://www.poynter.org/international-fact-checking-network-transparency-statement/ https://www.poynter.org/international-fact-checking-network-transparency-statement/ https://maldita.es/malditatecnologia/20200428/redes-sociales-automatizacion-contenidos-normas/ disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 14 autumn in the framework of an ad hoc committee of the eu parliament (see european parliament, 2022)– or the poorly-informed consent given by the vast majority of citizens to the administration of covid vaccines. 4. some facts and thoughts on disinformation, censorship and freedom of expression in the post-pandemic era on may 5, 2023, the director-general of the who announced that the covid-19 pandemic was no longer considered a public health emergency of international concern40. meanwhile, trials have begun in various parts of the world demanding that official authorities, pharmaceutical companies and other organizations take responsibility for their management of the crisis41. some of these lawsuits are related to controversies between misor disinformation and freedom of expression, and they have already brought about, e.g., a decision by the first instance court of varese (italy) rejecting a challenge by a facebook user who was suspended from the social media for spreading fake information about covid-1942, a sentence by a federal court in california which has prohibited the state from enforcing a bill punishing doctors for alleged covid-19 misinformation43, or an injunction granted by a u.s. district judge temporarily prohibiting several federal agencies and officials of the biden administration from interacting with social media companies about “protected speech”44. in the u.s congress, several hearings are taking place to inquire the federal government and the rest of the actors involved about the suspected collusion among them both in the management of the pandemic and in some other matters of public order45. 40 see https://www.who.int/news-room/speeches/item/who-director-general-s-opening-remarks-at-the-mediabriefing---5-may-2023. 41 a thorough tracking of these trials at: https://www.covid19litigation.org/news. standing out among them are several lawsuits for damages derived from side effects of covid vaccines, particularly in the u.s. and germany (e.g., https://www.reuters.com/business/healthcare-pharmaceuticals/biontech-faces-firstgerman-lawsuit-over-alleged-covid-vaccine-side-effects-2023-06-11/). all in all, it seems that the legal liability of pharmaceutical companies is going to be small, if not inexistent, since what has been leaked from the contracts signed between them and the states is that only the latter would be responsible for paying any compensation set by the judges. see https://www.biospace.com/article/will-u-s-vaccine-makers-facelawsuits-over-covid-vaccine-side-effects-like-biontech-is-/. 42 tribunale ordinario di varese, sezione prima civile, rg n. 2572/2021 (repert. n. 1181/2022, del 02/08/2022). 43 hoeg v. newsom, 2:22-cv-02147 wbs ac (e.d. cal. apr. 11, 2023). along with others mentioned in note 37 above, perhaps the most notable awaiting case on this matter is changizi v. u.s. department of health of human services, recently filed with the u.s. court of appeals for the sixth circuit. 44 the pending case is missouri v. biden (cit. supra), and the judge’s decision has been recently upheld by the u.s. court of appeals for the 5th circuit. see https://www.ca5.uscourts.gov/opinions/pub/23/23-30445cv0.pdf. 45 https://reclaimthenet.org/stanford-pressured-over-failure-to-provide-censorship-documents. there are even attempts at the moment there to pass a law in order to prevent such collusions in the future (https:// reclaimthenet.org/disclose-government-censorship-act-2023), although it is highly doubtful whether they will be successful. curiously enough, and according to section 230 of its communications decency act, the united states still consider social networks as mere intermediaries and not as the content publishers they have long been (sometimes by incitement, and sometimes not so much). https://www.who.int/news-room/speeches/item/who-director-general-s-opening-remarks-at-the-media-briefing---5-may-2023 https://www.who.int/news-room/speeches/item/who-director-general-s-opening-remarks-at-the-media-briefing---5-may-2023 https://www.covid19litigation.org/news https://www.reuters.com/business/healthcare-pharmaceuticals/biontech-faces-first-german-lawsuit-over-alleged-covid-vaccine-side-effects-2023-06-11/) https://www.reuters.com/business/healthcare-pharmaceuticals/biontech-faces-first-german-lawsuit-over-alleged-covid-vaccine-side-effects-2023-06-11/) https://www.biospace.com/article/will-u-s-vaccine-makers-face-lawsuits-over-covid-vaccine-side-effects-like-biontech-is-/ https://www.biospace.com/article/will-u-s-vaccine-makers-face-lawsuits-over-covid-vaccine-side-effects-like-biontech-is-/ https://www.ca5.uscourts.gov/opinions/pub/23/23-30445-cv0.pdf https://www.ca5.uscourts.gov/opinions/pub/23/23-30445-cv0.pdf https://reclaimthenet.org/stanford-pressured-over-failure-to-provide-censorship-documents https://reclaimthenet.org/disclose-government-censorship-act-2023 https://reclaimthenet.org/disclose-government-censorship-act-2023 leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 15 the end of the global health emergency has not, however, meant a break in the fight against misand disinformation in the western world. right before the pandemic, the disinformation officially pursued was mostly that associated to foreign destabilizing interference, with election periods as particularly critical moments (see here the 2018 french legislative reform46, or programs such as stanford 's election integrity partnership). this is also the case now: disinformation hybrid strategies in the networks and the media are in fact more present than ever, and especially around the war in ukraine, undoubtedly the hottest post-pandemic scenario. a remarkable example in this regard would be the western countries’ ban on rt and other russian broadcasters from march 2022 onwards. however, the most significant development in the fight against disinformation in the post-covid world is the open surveillance and control of ordinary domestic discourse. in the united states, combating disinformation before and during the pandemic was once associated with the global engagement center (gec), an interdepartmental agency created in 2017 at the behest of the departments of state and defense. although its mission was theoretically restricted to countering foreign attempts of disinformation, suspicions that the gec might have been overstepping its role for some time now appear to be turning into evidence, and have already reached the house of representatives and the senate47. in parallel to this body, the disinformation governance board (dgb) was created in april 2022 within the department of homeland security to openly pursue disinformation speeches among the national population. but it was so widely criticized from the beginning that it was dismantled a few months later. but the story does not end here: as soon as the dgb was closed, the foreign malign influence center (fmic), attached to the director of national intelligence, began operating in september 2022. although several of its functions overlap with those of the gec, and some see it as a mere covert continuation of the dgb, the fmic’s officially preceding unit is the election threats executive, also attached to the national intelligence office. in turn, the eu has recently approved two important documents to combat disinformation. in october 2022, the parliament and the council gave the green light to the long-awaited digital services act, which had been already announced at the end of 202048. in line with the previous directive 2000/31/ec on electronic commerce49, the 46 see https://www.legifrance.gouv.fr/jorf/id/jorftext000037847559. the french constitutional council validated the law in december 2018 (decisions no. 2018-773 dc and 2018-774 dc), after some reservations concerning interpretation, in order to guarantee the balance between freedom of expression and the need for a clear and unmanipulated electorate vote. 47   https://foreignaffairs.house.gov/press-release/mccaul-hfac-members-demand-answers-on-gecs-role-incensorship/. the episode has already been addressed in another documented installment of the twitter files by matt taibbi: https://twitter.com/mtaibbi/status/1631338661479424014 and has also been dealt with in political analysis: https://thefederalist.com/2023/04/19/meet-the-shadowy-group-that-ran-the-federalgovernments-censorship-scheme/. 48 the official name of this new digital services act is regulation (eu) 2022/2065 of the european parliament and of the council of 19 october 2022 on a single market for digital services. see https:// eur lex.europa.eu/legal-content/en/txt/html/?uri=celex:32022r2065&qid=1687694050920. 49 https://eur-lex.europa.eu/legal-content/es/txt/?uri=celex%3a32000l0031. https://www.legifrance.gouv.fr/jorf/id/jorftext000037847559 https://foreignaffairs.house.gov/press-release/mccaul-hfac-members-demand-answers-on-gecs-role-in-censorship/ https://foreignaffairs.house.gov/press-release/mccaul-hfac-members-demand-answers-on-gecs-role-in-censorship/ https://twitter.com/mtaibbi/status/1631338661479424014 https://thefederalist.com/2023/04/19/meet-the-shadowy-group-that-ran-the-federal-governments-censorship-scheme/ https://thefederalist.com/2023/04/19/meet-the-shadowy-group-that-ran-the-federal-governments-censorship-scheme/ https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:32022r2065&qid=1687694050920 https://eur-lex.europa.eu/legal-content/en/txt/html/?uri=celex:32022r2065&qid=1687694050920 https://eur-lex.europa.eu/legal-content/es/txt/?uri=celex%3a32000l0031 disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 16 dsa refuses to impose a general obligation on platforms to monitor the legality of content uploaded by users beforehand. notwithstanding, it charges them greater obligations of transparency and diligence in the removal of illegal content that may again pose serious risks to freedom of expression. specifically, the dsa obliges the largest online platforms –such as twitter, linkedin, google (youtube), meta (facebook, instagram), microsoft, tiktok, amazon, etc.– to periodically submit content moderation and risk mitigation reports to the eu starting august 2024. for its part, the european union will supervise social media platforms’ policing of “harmful” information, which could potentially include health misinformation. in order to do so, the european commission grants itself powers to require social media platforms to take actions to prevent, eliminate or limit any use of their services that might contribute to a threat to public security or public health. to top it all, these obligations are backed up by substantial fines of up to 6 percent of the company's worldwide turnover for non-compliance. on the bright side, the dsa will also oblige platforms to establish a transparent internal system for handling user complaints about their decisions. the second relevant document is the strengthened code of practice on disinformation 2022 (european commission, 2022), which replaces that of 2018, and which accompanies the dsa in this matter. among its many specific measures, seeking to strip disinformation of economic benefit is probably the most clever (see section ii (d-f)). apart from that, the strengthened code broadens the tools that empower users, e.g., to detect and flag false or misleading content, increases the coverage of fact-checking across eu countries and languages, and establishes a more robust monitoring and reporting framework both at eu and member state level, the implementation of which will undoubtedly provide occasions for new controversies surrounding more or less reasonable limitations on freedom of expression and opinion. in the eyes of the eu and other western powers, both texts are part of a broader process aimed at regulating and governing the oligopoly formed by the large technology platforms, whose vast infrastructural and gatekeeping power is being blamed for the growing deterioration of both social welfare and the stability of our democracies. in this sense, the dsa and the current policies of the u.s. free trade commission seem to be moving from a regulatory model centered on the management of discourse to one more focused on the governance of the actors that control information flows (jiménez and cancela, 2023). the major social networks, meanwhile, remain trapped in their peculiar schizophrenic loop, that is to say, between a business model prone to monetize sensationalist publications and a more or less induced but undeniable moderating zeal. even twitter 2.0, which takes pride in tackling disinformation with greater respect for freedom of expression50, continues to moderate content. with respect to the european union, and in view of its new legislation, twitter 2.0 (now in the process of becoming a larger platform 50 this newly acquired respect is reflected, among other things, in the promotion of the community notes to the detriment of vertical corporate fact-checking. leopoldo garcía ruiz the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 17 by the name of x) certainly seems to have no choice51. the same with aggravation is true in other parts of the world, such as china, india and turkey, where twitter has recently been in the news for compromising with government censorship requests52. ultimately, every website needs to have some basic level of moderation, or they quickly become absolutely useless. the important thing here, as in any other decision of distributive justice, is not to find a solution that satisfies everyone –something almost impossible by definition– but (a) to be able to adequately justify the criteria that have been used in this moderation work; and (b) to use the invisibilization and suppression of allegedly fraudulent content as the last resort, prioritizing whenever possible any other types of measures that are more respectful of freedom of expression. when it comes to assuming the complexity involved in content moderation and, more particularly, in the fight against online disinformation, we almost fully enter the realm of paradox. because, as cotino hueso (2022: 235) points out, disinformation is undoubtedly a disease for democracy, but the available remedies can be even worse. if we want to achieve something positive here, we must be humble and possibilistic, and fight disinformation with caution, also knowing that this is a war, both for its complexity and its current dimensions, which may be lost from the start. indeed, disinformation now makes use of very powerful and previously non-existent technological tools. the fast-paced development of ai makes possible a level of manipulation and falsification without precedent in history. this would lead us to another thorny issue that can only be touched upon here: that of algorithmic (gender, racial, political) biases, and beyond that, the question about the (impossible) neutrality of technology, and of the public authorities that regulate it. since the pandemic arrived, we seem to have grown accustomed to the fact that misand disinformation must be controlled by the authorities at all costs. but on second thought, that is far from being a smart move. the task of identifying lies and truth in information should ultimately correspond to citizens, not to technological platforms or political power. what is up to the latter is to assume misand disinformation with resilience, and to respond to it with more information, more democratic debate, more awareness and more training of civil society in a critical spirit (peralta gutiérrez, 2021). and in order to get there, it is essential to promote media literacy, quality journalism, and a free and plural media, as bastions of democracy and human rights. in fact, most of the recommendations of international institutions on the matter in recent times have been along these lines (see, among others, un human rights council, 2021; european commission, 2020b; european parliament, 2020b). with one caveat: thinking it through, it is really not so much a matter of promoting as of not hindering, that is, of removing obstacles and confronting attitudes that run counter to all these goals. 51 the feud between elon musk and thierry breton (the current european commissioner for internal market) is giving much to talk about here, but with the dsa in force, twitter –which has recently withdrawn its signature from the strengthen code– stands to lose in practice. in breton's own words: “in europe, the bird will fly by our rules”. 52    https://www.washingtonpost.com/politics/2023/05/15/elon-musk-about-face-government-censorship/ and https://reason.com/2023/05/17/elon-musk-turkey-twitter-censorship-free-speech/. as to china, see also gosztonyi, 2021. https://www.washingtonpost.com/politics/2023/05/15/elon-musk-about-face-government-censorship/ https://reason.com/2023/05/17/elon-musk-turkey-twitter-censorship-free-speech/ disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: a critical inquiry the age of human rights journal, 21 (december 2023), e8149 issn: 2340-9592 doi: 10.17561/tahrj.v21.8149 18 in the end, we must keep in mind that both freedom of expression and the fight against misand disinformation are necessary. that is why they must be defended simultaneously, and not be subjected to an excessive ideological back-and-forth. however, it should also be remembered that they are not on the same level: whereas freedom of expression is an absolutely basic individual and social good in a democratic state, whose restriction must always be justified, fighting misand disinformation should only be legally protected – as it was stated above– when the pursued communication represents a direct incitement to violence, or becomes a necessary means to violate the rights of others. even if a few other scenarios might be added to the list (e.g., a serious attempt to manipulate electoral processes through false campaign speech comes quickly to mind), the point here is that to make misand disinformation always, or in most cases, legally objectionable is not a wise policy: it compromises freedom of expression itself, and amounts to making the public power the universal and permanent arbiter of truth. funding this work is carried out in the framework of two research projects oriented to the study of the crisis of the rule of law in the eu: the project pid2021-126765nb-i00, funded by the ministry of science and innovation of the government of spain, and the project 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(2013): “the epistemology of fact checking”, critical review, vol. 25 (2), 162-180. van aardt, w. (2022): “the new era of covid-19 legal paternalism and the limitation of fundamental human rights”, de rebus, jan/feb. edition, 43-44. vogels, e. a., perrin, a, & anderson, m. (2020), “most americans think social media sites censor political viewpoints”, pew research center, aug. 19, https:// www.pewresearch.org/internet/2020/08/19/most-americans-think-social-mediasites-censor-political-viewpoints/. wardle, c. & derakhshan, h. (2017): information disorder: toward an interdisciplinary framework for research and policy making, council of europe report dgi(2017)09, september 27, https://rm.coe.int/information-disordertoward-an-interdisciplinary-framework-for-researc/168076277c. received: 26th june 2023 accepted: 14th august 2023 https://www.ohchr.org/en/press-releases/2020/03/covid-19-governments-must-promote-and-protect-access-and-free-flow https://www.ohchr.org/en/press-releases/2020/03/covid-19-governments-must-promote-and-protect-access-and-free-flow https://www.ohchr.org/en/press-releases/2020/03/covid-19-governments-must-promote-and-protect-access-and-free-flow https://www.ohchr.org/en/press-releases/2017/03/freedom-expression-monitors-issue-joint-declaration-fake-news-disinformation https://www.ohchr.org/en/press-releases/2017/03/freedom-expression-monitors-issue-joint-declaration-fake-news-disinformation https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/ https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/ https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/ https://rm.coe.int/information-disorder-toward-an-interdisciplinary-framework-for-researc/168076277c https://rm.coe.int/information-disorder-toward-an-interdisciplinary-framework-for-researc/168076277c disinformation, misinformation and limits on freedom of expression during the covid-19 pandemic: abstract 1. introduction: the crisis of the rule of law as a context 2. freedom of expression, disinformation and misinformation: a preliminary approach 2.1. narrowing down the phenomenon of disinformation 2.2. the fight against disinformation on the web: fact-checking agencies and other strategies 3. the information crisis associated with the covid-19 pandemic and its institutional management 3.1. from the un to youtube: a multilevel response to the infodemic 3.2. was there content moderation, or rather censorship? 3.3. lessons to be drawn from this information crisis 4. some facts and thoughts on disinformation, censorship and freedom of expression in the post-pa funding references unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 1 unlimited semiosis, encyclopaedic semantics, and interpretation of rights michele zezza* abstract: in this article, i intend to identify, within the frame of the semiotic theories of c.s. peirce and u. eco, some indications that may help to shed light on a remarkable phenomenon of constitutional interpretation, namely the influence exerted, in the process of determination of the constitutional provisions which attribute fundamental rights, by the set of beliefs, expectations, purposes etc., sedimented within a socially oriented linguistic practice. through this operation of analogical transposition, i seek to highlight how the identification of the theoretical-doctrinal backgrounds related to the complex of ethical-political conceptions incorporated by the constitutions is strongly influenced by various elements of an intraand extra-textual nature. furthermore, by placing the interpretative processes in a broader hermeneutic-semiotic framework that considers legal cases as sign functions, the text seeks to demonstrate in a relatively easyto-understand manner that the theoretical complications involved in the legal field do not ultimately differ from to those found in any other interpretative activity that involves the use of a natural-historical language. keywords: constitutional interpretation; interpretation of rights; unlimited semiosis; encyclopaedic semantics. summary: 1. introduction. 2. some remarkable aspects of the language of rights within the contemporary constitutionalism. 2.1. normative indeterminacy and ethically connoted notions. 2.2. interpretative problems and argumentative techniques peculiar to the constitutionalism of rights. 3. the semiotic loan in the drafting of constitutional provisions. 4. unlimited semiosis and particularist reasoning: semiotic habits and criteria for stabilising meaning. 4.1. the triadic structure of interpretation in the reconstruction of c.s. peirce. 4.2. pre-understanding and defeasibility in constitutional interpretation. 5. encyclopaedic semantics. 6. applications in the field of constitutional interpretation theory. 7. concluding remarks. 1. introduction the following discussion takes place within a determined conceptual and axiological background: in a legal-political and historical-temporal context characterised by a pronounced constitutionalization of legal culture. while being aware of facing an effort to rationalise a frame that is more articulated and complex in reality, it is considered that the conjunction of some distinctive features of the elaboration of constitutions-vagueness, normative indeterminacy, multiplicity, and conflicts between fundamental rights etc. – are still able to provide the ground for working on an ideal-typical representation1 of the constitutional state as a unitary conceptual model featured by the presence of certain structural elements. * professor of philosophy of law in the facultad de derecho y humanidades of the universidad central de chile (coquimbo). email: michele.zezza@ucentral.cl; orcid: https://orcid.org/0000-0002-4323-9850. this work was funded by the national agency for research and development (anid), and fits within the fondecyt de iniciación en investigación n. 11240009. 1 the reference is of course weber (1949: 42-44, 90-107, 110, 114, 125). https://doi.org/10.17561/tahrj.v22.8512 mailto:michele.zezza@ucentral.cl https://orcid.org/0000-0002-4323-9850 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 2 given these premises, the main objective of this analysis is to identify, within the semiotic theories of c.s peirce and u. eco, some indications that may contribute to shedding light on a remarkable phenomenon of constitutional interpretation, namely the influence exercised, especially in comparison with the constitutional text’s substantive part (and even more particularly, of the basic values underlying the formulation of the constitutional provisions that recognise fundamental rights), by the set of beliefs, purposes, expectations, assessments of reasonability and propositional attitudes sedimented within a socially oriented linguistic practice. some specific objectives are then linked to this general purpose, verifying to what extent these tools can be applied to the field of constitutional interpretation and what contributions they can actually make. as part of a global approach to semiotic processes, the surplus of the sign and its unbounded openness to further interpretation/reaction by other signs determines the experiential continuity between all sign circuits. an unreflective adoption of this kind of perspective seems to suggest a deep reinterpretation of the relations of translational continuity between the different languages we use on a daily basis. however, the use i propose of the two authors is limited to some specific theses – namely, unlimited semiosis and encyclopaedic semantics – aiming at of investigating their relevance for the theory of constitutional interpretation. i do not intend to argue in favour of the existence of a relationship of integral identity between the considered theses, whose nature is essentially philosophical-linguistic and semiotic, and the theory of constitutional interpretation or interpretation of rights. rather, i aim to verify the suitability of using certain propositions of semiotic theory to analyse the process of determining the content of the constitutional provisions that attribute fundamental rights – this is ultimately the heuristic hypothesis that supports the present analysis –. on a methodological level, i employ an approach to interpretation and legal reasoning based on an expressivist, anti-representationalist conception of meaning. i also defend a particularist and coherentist conception of practical reasoning, according to which the justification of one or more beliefs can only be assessed within an overarching system of rational beliefs and assumptions. in parallel, i propose a holistic vision of the constitutional text, which is understood as a unit of meaning equipped with its own peculiar linguistic code. finally, i use a multi-dimensional notion of background context, attributing particular importance to the premises of social, political, economic, historical, and cultural nature etc. given the legal-philosophical nature of this work, no predominant space is given to the analysis of positive legal data, whose consideration, on the contrary, assumes the function of contributing to integrating the study of constitutional language to the level of normative production. in this sense, i do not intend to propose an explanatory-interpretive reconstruction of a specific area of legal experience (the brazilian context, for example), but rather a theoretical investigation essentially oriented to the reconstruction of the interpretative activity of judges, and only indirectly of jurists, in the face of normative provisions (the linguistic statements produced by acts of promulgation waiting to be interpreted) that recognise constitutional rights. by using theoretical tools from the philosophy of language field, i seek to translate some specific aspects of the legal reality https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 3 studied into a model or schematization, aiming at of making their comprehension more accessible. by proposing this type of operation, i will implicitly adopt a conception of legal interpretation theory (and, more generally, of law) as an enterprise of cognitive nature which essentially constructs concepts, definitions, and stipulations, in order to make the identified sphere of knowledge more perspicuous.2 this proposal can be conceived as a first step towards a research effort on the relations between (peircean) semiosis and legal experience.3 the paper is structured according to the following steps. in the first part, i outline the historical background of the analysis, reconstructing some significant characteristics of constitutional interpretation within post-war constitutionalism. subsequently, i highlight some decisive aspects of the peculiar practice of signification as used in the legal field. i then move on to reconstruct the constitutive categories of the sign relationship outlined by c.s. peirce, identifying analogies and differences between the theory of “unlimited semiosis” and particularist reasoning in the ethical-juridical field. based on some theses developed by u. eco in the field of semiotics, i also attempt to illustrate the reasons supporting the suitability of adopting a “semantic model with instructions in the encyclopaedic format”, as a paradigm for constitutional interpretation and more particularly for the interpretation of rights. lastly, to wrap up the paper i summarise the main conclusions reached by the analysis. 2. some remarkable aspects of the language of rights within the contemporary constitutionalism as it should be evident, even from a superficial glance, legal language has a varied, multidimensional nature: it contains technical terms, terms coming from everyday language, and terms that come from other non-legal knowledge such as scientific and technological languages. natural and formal aspects, spontaneous social practices, and an authoritative administration of social interaction are all present within legal language4. from this point of view, constitutional language is not an exception, which means that it presents itself as constitutively opaque and “open-textured”, equipped with a pronounced semantic openness and variously interwoven with evaluative terms. we can quote here in full a passage by aharon barak (2005: 372-373, italics in the original) which is particularly clear in this regard: [c]onstitutional language is no different than any other kind of language. it is the natural language used by a given society, at a given point in time. constitutions, however, contain more “opaque” expressions than other 2 a conception of the epistemological status of the theory of interpretation similar to the one used in this article can be found in maccormick (1978: xiii-xiv). 3 the conception of legal systems as structures of sign relationships is one of the cornerstones of roberta kevelson’s research program (see, in particular, 1988). among the scholars who highlight the relevance of semiotics for legal theory see also jackson (1985). 4 on the peculiarities of legal language and legal interpretation, see canale (2012: especially 158). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 4 legal texts. they include many terms that could be interpreted in a number of ways, and many constitutional provisions are “open-textured” and opaque. of course, all language can be open-textured and opaque for some sets of facts, but constitutional language is open-textured and opaque for many, if not most, sets of facts. three primary reasons explain this state of affairs: first, a constitutional text expresses national agreement. in order to reach agreement, nations generally must confine themselves to opaque and open-ended terms, reflecting their ability to reach consensus only at a high level of abstraction. second, a constitutional text seeks to establish the nation’s fundamental values, covenants, and social viewpoints. we tend to express those concepts in value-laden language, conveying a message that is rarely clear or unequivocal. third, a constitutional text is designed to regulate human behaviour for future generations. it takes a long-term view, assuming that viewpoints, positions, and social behaviour will change. it must adopt language flexible enough to include the new viewpoints, positions, and modes of behavior that cannot be predicted at the time it is written. otherwise, the constitutional text would be obsolete the day it is enacted. at the same time, a constitutional text must be definitive enough to bind the branches of government and prevent them from behaving, in the future, in a way that is contrary to the viewpoints, positions, and social behavior that the text seeks to preserve. the language of a constitutional text must be both rigid and flexible. in a legal-political context characterised by a “culture of justification” model (cohen-eliya, porat: 2011) – in which the respect for the spheres of authority represents only a starting point for a constitutional verification of legitimacy, operated on the basis of methodological principles such as reasonableness and argumentation – the content of the constitutional provisions that recognise fundamental rights appears inextricably linked to considerations of a substantive nature: “weight” related arguments, ethical-political options, comparative analyses between opposing interests, evaluations strictly linked to moral concepts (“freedom”, “equality”, “solidarity” etc.). 2.1. normative indeterminacy and ethically connoted notions among the most significant characteristics of post-war constitutionalism, we must undoubtedly include the large-scale diffusion of a pronounced constitutionalization of legal culture – a “process of transformation of a system at the end of which it becomes totally ‘impregnated’ by constitutional norms” – (guastini 1998: 185) and, at the same time, of a dense and heterogeneous substantive ethical content.5 as a result of the changes produced by the irradiation of principles in infra-constitutional systems, contemporary constitutional states present both a static and dynamic nature, in the sense that “the constitution indicates 5 this notion refers to that complex of rights, principles, values, and interests that place a series of material constraints on the choices that can be legitimately pursued in the legislative process; see celano (2013: 125-130). https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 5 not only the procedures for normative production but also its substantive limits” (pino 1998: 219, italics in the original). from an overall perspective aimed at strengthening the coherence of the legal system or minimising its internal contradictoriness6, not only the rules and decisions adopted by a competent body through the appropriate procedure are often seen as valid, but also so are those which do not contradict the content of the fundamental rights. in fact, several interpreters underline that these and other structural aspects of contemporary constitutionalism suggest, if not require, the use of a model of moral reading of the constitution (dworkin 1996) and various forms of extensive-evolutionary interpretation: of an interpretative approach inclined to substantivism, which recognises a certain wholeness within the constitutional system, makes use of substantive criteria in the selection of interpretative hypotheses and, if possible, aims to expand the number of legal situations protected by rights. as uberto scarpelli (1987: 10, 12-13) observes, a large part of contemporary constitutional documents has been “loaded” with principles «open-ended and projected into the future to act as a guide, through various interpretations and adaptations, in the face of ever-changing problems, difficulties and conflicts».7 these principles are also (a) generally elastic (alexy 2000: especially 295), (b) “virtually indefinable or inexhaustible” (modugno 2000: 98), and (c) characterised by “a surplus of deontological content” (betti 1990: 844). the incorporation of values and ethical principles into positive law – it is worth pointing out – is inevitably affected by the charge of indeterminacy (equivocality, problematicity etc.) of the substantive background conceptions to which they refer, to the point of often making it extremely difficult to separate the ethical level of value judgments from the legal-formal level of procedures. the legal culture of the constitutionalism of rights (see pino 2017) tends to attribute considerable importance to constitutional principles – rules characterised by a high degree of generality and indeterminacy, in both their factuality and the legal consequences they can generate. these aspects, of course, significantly condition the interpretative, argumentative, and applicative operations regarding fundamental rights (prima facie rights, in this case), thus engendering somewhat variable legal consequences. 6 on the subject, within this rather broad debate, see at least the following raz (1994); amaya (2011, 2012); alexy (2016). 7 scarpelli (1987: 10, 12-13). i lack the space to go into the subject more fully: i will simply point out that i believe the originalist criterion of resorting to the intention of the constituents is difficult to use, at least in the field of constitutional interpretation. contemporary constitutions are the result of mediations between political forces that bear different substantive conceptions of public good and that, among other things, are designed to be preserved for a long period of time. well, it seems quite complex, in this context, to access all the relevant information necessary to determine, for example, which specific conception of freedom of religion the constituent had in mind (and to which cases it should apply). the literature on the subject is endless. please refer in particular to the following studies: huscroft, miller (2011); sardo (2018). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 6 the peculiarities of the style of drafting the constitutional provisions that attribute fundamental rights, among other issues, pose the problem of determining the content of the ethically connoted notions from which they are often formulated. from this point of view, an emblematic example of a controversial expression that frequently appears in constitutional language concerns the value of human dignity: within both the legaltheoretical debate and on the level of doctrinal interpretation, dignity can be conceived, on the one hand, as the pivot or foundation of the constitutional system, and on the other, as a single constitutional right. the inherent heterogeneity of this notion’s interpretative reach makes it particularly difficult to reconstruct a minimal semantic basis for it that is reasonably acceptable to all interpreters. one can think, for example, about of article 3 of the european convention on human rights (“no one shall be subjected to torture or to inhuman or degrading treatment and punishment”), in which the controversial nature of words such as “torture”, “inhuman” or “degrading” emerges. in these cases, we are faced with “thick moral concepts” which, among other things, have the peculiarity of incorporating relevant cultural information in relation to the axiological background in which they are inserted (the evaluative and descriptive-factual components appear then to be inextricably intertwined). indeed, here one can see quite clearly the expression of an evaluative-emotional attitude towards a specific object, which requires a delicate work of determination as to its content. faced with provisions attributing rights phrased with these characteristics, as fittingly argues bruno celano (2013: 111), it seems in fact unrealistic to “block the emergence of considerations of substantive rationality, which are, in part, moral considerations”. in order to determine the content of rights, to justify a judgement etc., it seems therefore inevitable to deal with the conspicuous presence of evaluative formulas and assume some form of moral commitment, which on certain occasions may highlight the presence of a radical dissent on the ultimate principles underlying interpretative decisions. the symbolic and expressive meaning8 with involved in constitutional clauses are imbued emerges with particular clarity in the case of provisions that recognise social rights (the rights to education, work, health etc.). on the one hand, even if destined to remain fully or partially unapplied, social rights perform the important function of reaffirming the citizens’ adherence to a series of values essential for collective life. on the other hand, even if they prove to be temporarily ineffective, their recognition can still become the starting point of a claim (not necessarily on a jurisdictional level) aimed at obtaining compensation, on a legislative and political level, for the violation or excessive restriction of rights. 8 on the symbolic-expressive dimension of declarations of rights (and on the transformative potential of claims formulated in terms of rights, even if they are rights that are not enforceable or guaranteed at the moment) see especially feinberg (1973); lefort (1981: 45-83); postema (1989); fromont (1996); rodotà (2006: especially 42); id. (2012, chap. 3); kramer (2008: especially 426). the perspective of logical expressivism and semantic antirealism appears consistent with this dimension, on a semantic level; see in particular peregrin (2014); brandom (2008); besson (2019). https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 7 2.2. interpretative problems and argumentative techniques peculiar to the constitutionalism of rights in a type of legal and political system that presents these synthetically referenced above characteristics, both the norms and the principles, albeit with different degrees of intensity and with a different frequency (in both instances greater, obviously, in the case of principles), tend to be characterised by their (a) vagueness (the presence of predicates whose application is imprecise because they are present in “border cases” in which it is not possible to define exactly where the concept in question begins and ceases to be applicable); (b) controvertibility (the presence of terms that offer difficulties to reach an agreement about their for substantive reasons); and to also present an (c) open texture (impossibility of delimiting their scope of application in advance and in a comprehensive manner). their formulation may contain predicates whose application is uncertain due to quantitative factors, or terms on whose meaning there is no agreement for substantive reasons; then, there are also cases in which it is not possible to delimit a priori and exhaustively all the possible exceptions to which a rule is subjected. these aspects, which can occur separately or simultaneously, bring with them various interpretative difficulties that may concern, to a different extent, to both principles and norms. within a model of substantive legal culture such as the one that characterises today’s “constitutionalism of rights”, at both doctrinal and practical levels, interpreters are called to deal with the frequent presence of hard cases, gaps, normative antinomies etc.: problems whose solution often requires (or suggests) freeing oneself from the typical technicalities of legal interpretation of infra-constitutional nature, to instead resort to peculiar techniques such as proportionality or balancing; equitable or practical reasonableness; to various tools of “integration” and “construction” of law that in the philosophical-juridical debate tend to be ascribed to the concept of interpretation only in a broad sense.9 a significant feature of constitutional interpretation10 is the greater intensity and assiduity with which it may encounter “essentially controversial concepts” (see gallie 1956): polysemous notions, used in different contexts (moral, political, legal etc.) with sometimes significantly different meanings, and often emotionally connoted; terms whose semantic extension makes any attempt at definition or cataloguing particularly problematic. in a constitutionalized legal system, the interpretation made by law enforcement bodies takes on an at least partly inventive and discretionary character. in the presence of an uncertain situation, faced with general rules that are often opaque or flexible, it is usually necessary to resort to a choice between different interpretations 9 the distinction between “interpretation in the narrow sense” and “interpretation in the broad sense”, indeed not always accepted by all authors due to its rigidity (just as the line of demarcation between interpretation in the narrow sense and integration of law is not always clear), is outlined in particular by wróblewski (1979: 74-112); guastini (2011: 32 ff.). a different proposal – one between “textual” and “meta-textual” interpretation – can be found in particular in chiassoni (2007: 60-64). 10 within the very extensive literature on constitutional interpretation, see at least marmor (1995); moreso (1997); ferrer mac-gregor (2005); barber, fleming (2007); pino (2010). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 8 to determine the actual content of the constitutional provisions, thus opening up the scenario of a plurality of “constitutionally possible worlds” (moreso 1997: 167). there is abundantly evident that, in a legal-political context with these characteristics, the task of the jurist-interpreter cannot be limited to the mere grammatical or syntactic dimensions of the normative text, it is equally necessary to concretise the meaning of the linguistic signs present in the dispositions against the background of the historicalsocial context. now, the acceptance of the inevitability of these phenomena can be easier – or at least, this is what i expect to demonstrate – if the interpretative processes are inserted into a broader hermeneutic-semiotic framework that regards the legal cases as sign functions, underlining how the theoretical complications present in the legal field are not at all different from those found in any other interpretative activity that involves the use of a historical-natural language. 3. the semiotic loan in the drafting of constitutional provisions taking up a canonical distinction within the philosophy of language, we can assume that the meaning of any linguistic expression contains two dimensions: the sense or intension – which represents the intra-linguistic component of the meaning – and the reference or extension – that is, the relationship of the word to the object it denotes. the most comprehensive elaboration of this dualism dates back to friedrich ludwig gottlob frege (1948) in his famous essay “über sinn und bedeutung”11. discussing the concept of identity, the author develops an analysis of the conceptual or informational content that concerns all categories of linguistic expressions: singular terms, predicates, and sentences. without delving into the complexity of frege’s analysis, it is sufficient here to note that it establishes a basic separation between: (i) the sign or linguistic expression; (ii) the meaning, or mode of presentation of the object; (iii) the reference or extension, i.e., the object itself. to summarise it in an extremely schematic way: the realm of reference concerns the relationship between language and extralinguistic reality, that is, the external world; on the other hand, the contents that speakers are able to associate with the expressions they use to understand and utilise language fall within the scope of meaning. a singular term’s reference is constituted by the object it denotes, while the meaning is developed by how this object is presented; the reference of a statement coincides with its truth value, and the meaning with the thought expressed by it. this last dimension, since it (i) can be expressed in a language (ii) can be grasped and shared by all individuals, should not be confused with the subjective and intrapsychic representation (vorstellung), i.e., the mental image that speakers tend to associate with every expression. 11 as regards the terminology adopted, it is clear that these are two words whose use is as widespread as it is vague, although within fregean reflection they take on a rather technical and specific meaning. the term ‘bedeutung’, strictly speaking, should be translated literally as ‘meaning’; for the needs of conceptual clarification, however, several translators tend to opt for “reference” or “denotation”. https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 9 having established these premises, it becomes evident that the tendency to include multiple linguistic signs of everyday vocabulary – terms, phrases, sentences etc. – which designate objects (entities, properties, relationships, facts, states of affairs, events, processes etc.) whose reference appears rather obscure, if not actually non-existent, is certainly a significant characteristic (although not a peculiarity) of the discursivecommunicative status of law. in other words, the fundamental elements of the legal vocabulary – think of notions such as those of subjective rights, contract, crime, property etc. – they are extraneous to the physical world: they do not exist “in nature”, they appear to be endowed with a peculiar mode of existence that does not coincide with that of natural phenomena12. the essential structure of legal norms is therefore irreducible to physical entities or biological relationships. law is a reality which, contrary to what “the man who comes from the countryside” would expect in kafka’s famous parable “before the law”13, it cannot be seen with one’s eyes or touched with one’s hands, and yet it has a strong empirical impact on social life. in this peculiar practice of signification and communication, legal practitioners, along with legal theorists and society as a whole, are essentially required to “do things with words” (see austin 1975): that is, they are the first who are called upon to indicate to their associates (and therefore to themselves) how they must act, or better yet, what behaviours they must avoid in order not to incur in sanctions; they are required to cooperate to the task of defining the law and its limits. the semiotic loan found in legal language provides that, in the attempt to forge (provisionally considered) correct legal arguments and reasoning, the words and syntaxes applied are mostly pre-existing, rarely ever being created ex novo or taken from other technical languages. the protagonists of this process are not only the constitutional and ordinary judges but, in some ways, also the legislator, theorists of law, and society itself – as they are an integral part of the interpretive community14. in reconnecting the practices of the associates to a specific legal-institutional tradition, all these subjects, naturally to different extents and with different roles, contribute to establishing “the constitutive rules, i.e., the fundamental grammar that supports and defines the practice of judging” (viola, zaccaria 1999: 192). once inserted within the legal universe, these terms and syntaxes tend to give life to new notions which are often endowed with a distinctly specialised dimension. this “fusion of horizons”15, that is, the encounter between the different linguistic universes of 12 some reflections on the more general theme of the extra-natural reality (artificial, conventional etc.) of law, with particular emphasis on the liberal impact of the divisionist approach, please refer to kelsen (1943); popper (2013; vol. i, especially. chap. v). the issue had already been addressed with a different approach, aimed at highlighting the “magical”, “supernatural” origin of various legal institutions by hägerström (1927). 13 see kafka (2009: 153-156). among kafka’s interpreters, derrida (1994) particularly insists on the immaterial dimension of the law. 14 on this notion, see in particular pariotti (2000); schauer (1990: 251 ff.). 15 the expression was used for the first time with a hermeneutic meaning by gadamer (2004: 300-305). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 10 the interpreter and the interpreted object, can occur through various modalities: through transfers or shifts in the ordinary meanings, metaphorically or metonymically, through a further delimitation of the content of the words, or other similar strategies. so, a consequence of these premises is that the interpretation (and application) of the “living law”16, of law understood as a form of life closely intertwined with other areas of society, is influenced not only by the set of jurisprudential precedents but also by the very evolution of linguistic practices (the variation of legal-political concepts, in particular17) within the various historical, cultural, social contexts etc. therefore, it is appropriate, from this perspective, to conceive nomopoiesis as an attempt to adapt to the complexity of the social environment and, in parallel, to regard the constitution itself as an evolutionary achievement in a relationship of close integration with other social subsystems.18 in other words, there is a structural connection between the legal system and external environmental inputs, deriving in particular from the political and economic spheres. 4. unlimited semiosis and particularist reasoning: semiotic habits and criteria for stabilising meaning 4.1. the triadic structure of interpretation in the reconstruction of c.s. peirce according to charles s. peirce’s reconstruction, the elementary structure of every interpretation presupposes a triadic relationship between a first sign which stands in place of another – the representamen – a second element represented by the first – the object – and a third sign that connects the first to the second – the interpretant. this last element constitutes, in turn, an additional relationship between the representative, the object, and the interpretant. a semiotic subject19 necessarily calls into play another subject 16 originally formulated by eugen ehrlich 1913, the concept can now be considered currency within present legal-theoretical debates. for a broader perspective (not limited to jurisprudential interpretative practice), please refer to the analyses of resta (2008). 17 «conceitos fundamentais do direito atual, como os de direito subjetivo, de pessoa jurídica, de relação jurídica, de generalidade da norma, de não retroatividade das leis, de igualdade jurídica e política, de primado da lei, de estado, são relativamente modernos na cultura jurídica europeia, não existindo de todo noutras culturas jurídicas. frequentemente, esta descontinuidade e inovação na história jurídica é encoberta pela própria maneira de fazer história. os historiadores do direito fazem, frequentemente, uma leitura do direito passado na perspectiva do atual, procurando lá os “prenúncios”, as “raízes” dos conceitos, dos princípios e das instituições atuais. por exemplo, se estudam o estado, procuram nos direitos da tradição europeia, nomeadamente no direito romano, entidades que dispusessem de certos atributos (mas não de outros, como o monopólio de criação do direito, ou um poder de plena disposição em relação à ordem jurídica) do estado atual (por exemplo, o conceito de populus romanus, o conceito de imperator)» (hespanha 2012: 125); on these topics, see also koselleck (2004), and more generally, the studies of the so-called “begriffsgeschichte”. 18 this is, in broad terms, the systemic approach defended by luhmann (1981), which was later taken up and expanded especially by teubner (2012). 19 «[t]he semiotic subject is a way of looking at the world and can only be known as a way of segmenting the universe and of coupling semantic units with expression units: by this labor it becomes entitled to continuously destroy and restructure its social and historical systematic concretions» (eco 1979, 315). https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 11 that operates semiotically and so on, in a process that gives rise to an infinite chain of interpretants – which the author refers to as “unlimited semiosis”20. from this perspective, thought it is produced solely through signs and sign references, that is, by significant relationships of referral from one thought to another, in an unstoppable trajectory that never encounters the external “thing”, except as a sign itself: approaching the object in its autonomous essence – as a “thing in itself” (“ding an sich”), to put it in kantian terms – constitutes an insurmountable limit. each sign is therefore conceivable only within a “triadic action process”, a circuit that presupposes cooperation between three elements that cannot be conceived separately except as conceptual constructions.21 in the words of peirce (1994: 2.228, italics in the original): [a] sign, or representamen, is something which stands to somebody for something in some respect or capacity. it addresses somebody, that is, creates in the mind of that person an equivalent sign, or perhaps a more developed sign. that sign which it creates i call the interpretant of the first sign. the sign stands for something, its object. it stands for that object, not in all respects, but in reference to a sort of idea, which i have sometimes called the ground of the representamen. a sign is precisely what causes an addressee (its interpretant) to refer to an object with which it itself (its object) relates in the same way, becoming the interpretant in turn a sign – and so on ad infinitum within a continuous circularity22: if this cycle is interrupted, the sign, as such, would lose its character as a signifier. a sign – the author observes again – stands for something to the idea which it produces, or modifies. or, it is a vehicle conveying into the mind something from without. that for which it stands is called its object; that which it conveys, its meaning; and the idea to which it gives rise, its interpretant. the object of representation can be nothing but a representation of which the first representation is the interpretant. but an endless series of representations, each representing the one behind it, may be conceived to have an absolute 20 this notion was later widely adopted by eco 1979, 1981. 21 «le unità culturali sono astrazioni metodologiche ma sono astrazioni ‘materializzate’ dal fatto che la cultura continuamente traduce segni in altri segni, definizioni in altre definizioni, parole in icone, icone in segni estensivi, segni estensivi in nuove definizioni, nuove definizioni in funzioni proposizionali, funzioni proposizionali in enunciati esemplificativi e così via; essa ci propone una catena ininterrotta di unità culturali che compongono altre unità culturali» (eco 1975, 105). 22 «anything which determines something else (its interpretant) to refer to an object to which itself refers (its object) in the same way, the interpretant becoming in turn a sign, and so on ad infinitum […]. if the series of successive interpretants comes to an end, the sign is thereby rendered imperfect, at least» (peirce 1994, 2.303). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 12 object at its limit. the meaning of a representation can be nothing but a representation. in fact, it is nothing but the representation itself conceived as stripped of irrelevant clothing. but this clothing never can be completely stripped off; it is only changed for something more diaphanous. so, there is an infinite regression here (peirce 1994: 1.339). there is no way, according to this perspective, to establish the meaning of an expression, that is, to interpret it, except by translating it into other signs which will inevitably add new information to the interpreted expression. the concept of representation, by logical necessity, implies an infinite postponement: the idea of a continuum without an initial or a final moment. we are therefore plunged into an inexhaustible path of interpretation that moves through permanently reformulated meanings. hermeneutic theory itself seems to converge on this point as it reflects on the idea of “pre-understanding” or “expectation of meaning” (“sinnerwartung”, in the terminology of hans georg gadamer 2004, passim), which sustains the cognitive process23: each sign is interpreted by another sign, based on the preliminary assumptions that guide the understanding. if we consider a literary text (remembering that anything can temporarily perform the function of a sign) – for example giacomo leopardi’s paralipomeni della batracomiomachia or james joyce’s ulysses – it can be noted without too much difficulty that it never presents itself as an isolated entity but rather as a part of a network of cultural relationships with other texts by the same author and with contemporary or preceding literary models.24 any text, however sectorial its scope of application may be, is inevitably imbued with the contents and contributions present in the literature on the topic addressed by it and beyond. its very genesis is historically and socially conditioned, and this aspect is true both on a diachronic and synchronic level. and so, obviously, this type of discussion applies to any field, not just literature. in this perspective, as umberto eco (1979, passim) in particular shows, the central function within the semiotic process is carried out by the interpretant: it introduces and structures the sign relationship from within and activates it by mediating its terms (sign and object); being in this sense a means to understand its meaning. this understanding will always inevitably be partial, as the possibility of approaching a meaning is offered only in an asymptotic way, without it ever being possible to grasp its global essence: the use of interpretants is, by definition, potentially infinite, continuously revisable. signification (and communication), through continuous movements, which refer a sign to other signs 23 sini (1981: part i) highlights the compatibility of the thesis of the pre-comprehensive foundation of interpretation with the idea of the “hermeneutic circle” proposed by martin heidegger in par. 32 of being and time. it should be specified that the expression in fact first appears in the rise of hermeneutics of wilhelm dilthey (1990) and that the theme of the circularity of understanding, albeit succinctly, had already been addressed by friedrich d.e. schleiermacher (1985). 24 cf. in particular kristeva (1969). arguing a similar position is roland barthes (1984), which underlines how the significance of intertextual links and the role of the reader ends up reducing the author’s function. https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 13 or to other chains of signs, circumscribe cultural units without ever reaching the point of “touching” them directly but still making them accessible through other cultural units. the consequences of this discussion seem at first glance rather disturbing: since the contexts of use (the textual, institutional, historical-social contexts etc.) are infinite, the structural plurivocity of the signs’ risks precipitating the interpretation into an unstoppable drift. however –peirce (1994: 5.475) himself insists on this point–there are generally certain “semiotic habits” present in human being which, within the various situations that arise on the day-to-day, lead us not to persevere beyond certain unreasonable limits in the exploration of the entire universe of possible interpretations, thus avoiding an infinite regress.25 for example, meticulously reflecting on the enormous network of semantic relations that can be associated with the word “state”, it could represent a sensible operation for a lexicographer or even for a lexicologist; but it would appear decidedly inappropriate for a jurist, a political scientist, or a sociologist interested in working with a notion of the modern state within a specific theoretical controversy – hypothetically, to determine whether it is truly usable, and if so to what extent, therefore addressing the idea of statehood in the context of that historical phase, in which it is globally characterised by the progressive overcoming of the medieval legal-political system, and which in various ways has been considered as the era of the twilight of “traditional society”, the “dissolution of community life”, or the “transition to modernity”.26 4.2. pre-understanding and defeasibility in constitutional interpretation the idea of the circularity of understanding mentioned in the previous paragraph presents interesting applications at the level of constitutional interpretation. following an influential reconstruction by robert alexy (1996), we can distinguish three types of hermeneutic circles within the legal field: a) in relation to the text (a hypothesis related to the correct solution of the problem, which it is necessary to decide about; b) in the relationship between the part and the whole (the interpretation of a norm presupposes the understanding of the normative system to which it belongs and, in parallel, the understanding of a normative system is not possible in the absence of an interpretation of the individual norms that belong to it); c) in the relationship between norms and facts (the norms are universal and abstract, the facts to which they must be applied are individual and concrete – in the interpretation, it is necessary to consider all the distinctive features of the fact and all the distinctive features in the possibly applicable norms). 25 «the densely sedimented habits of the historical community in which legal practitioners assume their representative roles are among the most important dynamical objects to be considered in reference to law, just as the newly emerging interpretants generated by legal decisions are among the most significant effects of legal semiosis» (colapietro 2008: 243). 26 see, respectively, weber (2019: 401); tönnies (2001: 170); peces-barba martínez (1982, passim). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 14 now, on the more specific level of constitutional interpretation, in the argumentation and justification of decisions, hermeneutic circularity emerges above all in the relationships of mutual implication between fundamental principles and values (see especially taruffo 2020: 105 ff.). a relevant basis of the pre-understanding that orients the interpretative activity of jurists and theorists is represented by the guiding values positivized at a constitutional level as the foundation of the legal-political system in question. this reasoning can be reproduced in the following terms: 1) the constitution is a meaningful body with its own global wholeness and coherence27 – a set of generally supportive propositions or statements that refer to a common axiological background (which naturally does not exclude, as it has already been observed, that collisions between constitutional rights may arise during application). 2) given these premises, the interpretation of the constitutional provisions that recognise fundamental rights presents itself as an activity guided by a “pre-theoretical” intuition relative both to what they prescribe and to the factual situation they regulate.28 3) consequently, the justification of an interpretative hypothesis is strongly conditioned by its consistency to the rest of the normative elements relevant to the decision. assuming that coherence relations are symmetric – that two consistent elements are mutually interdependent, and not that one is deduced from the other based on a linear conception of the inferential chain29 – thus it seems possible to avoid that propensity towards circularity and conservatism that represents a problem constantly found in coherentist theories.30 in this operation, various evaluations of the interpreter’s reasonableness can cooperate, such as, in particular, one’s own cultural and methodological training or considerations relating to the evolution (social, economic, political, technological, etc.) of the historical context in which one operates; the communis opinio or generalised consensus of the legal community; the role played by legal dogmatics; the opinions of jurists or technicians who may have been consulted; the argumentative techniques widespread in the legal culture of reference; the jurisprudential precedents; reflections on the consequences of interpretative decisions for the community; the identification of substantial (even if implicit) principles and values. here we find ourselves faced with rules, canons, codes, and linguistic conventions endowed with their own normative nature, which in the legal field plays a role entirely analogous to the “semiotic habits” to which peirce refers. 27 taking up an insight by bruno celano (2006: 146), we can identify a basic analogy between the holistic conception of practical reasoning and the representation of the process of construction and revision of scientific theories developed by willard van orman quine, which compared them to force fields that “touch” the experience by reacting only within its borders («l’insieme delle ragioni che di volta in volta individuiamo, e dei valori ad esse sottesi, è una totalità (una corporazione), articolata al proprio interno, che “tocca” il mondo (l’universo, indefinito, delle situazioni possibili: l’insieme dei casi possibili) ai propri confini»; ibid.). 28 on the nexus between declarations of rights and background ethical-political doctrines, see especially celano (2013: 94-95). 29 i follow, here, the approach of amaya 2012 («[e]l problema de la circularidad sólo surge si uno acepta una concepción lineal de la inferencia según la cual la justificación es una propiedad que se transfiere de una creencia a otra a través de una cadena. sin embargo, el modelo de coherencia propuesto rechaza esta concepción “tubular” de la justificación y se basa, por el contrario, en una concepción holista según la cual la justificación de una hipótesis fáctica o interpretativa depende de su coherencia con el resto de los elementos relevantes» (ibid.: 81). on the intertwining of continuity and innovation in interpretation, cf. raz (2009). 30 an objection of this type can be found, for example, in raz (1986). https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 15 these guiding criteria, which cannot be traced back to moral reasoning devoid of any connection with legal proceedings, can constitute an important stabilising factor for the interpretative activity of legal practitioners and jurists, thus allowing a certain degree of social control and verification of its correctness. however, since these are flexible and sometimes conflicting directives, when establishing jurisprudential guidelines, we can only speak about provisional and reviewable “rules of thumb”: normative generalisations of particular decisions which are not necessarily valid for future cases and therefore cannot be exhaustively predicted. these constraints, along with the very dimension of textuality, are not intended to suppress any room for freedom for the interpreters but rather to contribute to containing them (see, in this sense, raz 1979: 75).31 in this task of projecting cases from the past to the future, the set of possible combinations of the properties relevant to the decisions is in principle inexhaustible, thus exposing any abstractly correct interpretation to the eventuality of recalcitrant cases. significant examples of “defeaters” can be found in both within criminal law and private law. while the former involves causes of justification (state of necessity, self-defence, exercise of a right) that lead to the reconsideration in the phase of application, the latter presents the category of defects of consent – factual circumstances that likely will become invalid the consent of a contractual stipulation. even more, in the field of judicial reasoning, particularly when concretising constitutional principles (basically those constitutional principles that recognise fundamental rights)”.32 for example, the position of the spanish constitutional tribunal on the classic conflict between the right to information and the right to freedom of expression, on the one hand, and the right to privacy and protection of one’s image (protected by articles 20.1, 20.4 and 18.1 of the spanish constitution), on the other hand, can be summarised by using the following formula: «[e]l derecho a la información prevalece sobre el derecho al honor, salvo que la información sea injuriosa o, aun no siéndolo, no sea veraz o carezca de relevancia pública» (mendonca 2003: 79). the first step consists of building a taxonomy that allows each case to be placed within a specific category; subsequently, there is the development of some conditional priority rules which do not imply a strict hierarchization but only an open and reviewable order. the most important of these rules states precisely that when a collision occurs between freedom of expression and the right to privacy the conflict must be resolved in favour of the latter right, but the right to information must prevail whenever the informational content is truthful and of public relevance. this rule must be understood as fragmentary, open and incomplete, since nothing excludes the possibility of new circumstances arising in the future, which will require adding other conditions to those already established or reformulating the concepts of “truthfulness” and “public relevance”. this practice is undoubtedly subjected to a form of intersubjective control: the solutions identified can represent guiding models for future cases, legitimizing the possibility of identifying interpretative habits. however, the possibility remains always open for the court to free itself from the constraints constituted by the precedents. 31 see in this sense raz (1979: 75). 32 on these issues, see in particular celano (2016). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 16 5. encyclopaedic semantics based on the influence of c.s. peirce’s work, since the 1970s umberto eco (see especially 1997) theorised about the superiority of a “semantic model with instructions in encyclopaedic format”33, referring with this notion to a network of interconnected cultural units or “portions of knowledge”, as opposed to a more rigid dictionary-like semantic models, in which each meaning is simply made up of a series of minimal, selfsufficient units.34 in a semantic universe with an encyclopaedic dimension – the author argues – meaning is determined by the use of concepts linked to our general experience or knowledge of the world, to culturally predefined beliefs and structures that we have absorbed over time. the encyclopaedia represents a semiotic postulate or a regulatory hypothesis: the recorded set of all logically possible interpretations, the archive of all verbal and extra-verbal information, which as such can never be described in its entirety. the main objective of this theoretical category is to account for the mechanisms of sensemaking in various communicative contexts, predicting the circumstances and situations in which a word would take on specific meanings. in a semantic system of this type different routes of interpretation can be undertaken depending on the contexts and choices involved, continuously reorganising the system through unpredictable paths. within this multiplicity of knowledge articulations, a principle of (free) interpretative choice can also find space in contextual and circumstantial selections. the notion of encyclopaedia is associated by eco with a “rhizomatic” or “n-dimensional” model of knowledge. this choice derives from the fact that, as gilles deleuze and felix guattari initially demonstrated35, the morphology of the rhizome does not present determined and stable positions but only lines of connection: a rhizome can be broken at any point and, through continuous resegmentations, reconnect to its own line, in a tortuous route that resembles the path of a labyrinth. by virtue of these characteristics, the rhizome lends itself to symbolizing an ahierarchical and acentric conception of knowledge. conversely, an “arborescent” and hierarchical vision of knowledge is emblematically present in the systematization of aristotelian logic carried out by the neoplatonic philosopher porphyry, in his “introduction to aristotle’s categories”.36 the theory developed by porphyry is a philosophical system based on binary options, articulated on vertical 33 on the notion of encyclopaedic knowledge (seen as inseparable on a conceptual level from semantic knowledge), cf. rumelhart (1993); for a detailed description of the ways in which encyclopaedic knowledge is developed and preserved, cf. perry (1986). 34 as violi (1997: 82) shows, we can consider them “dictionary-like semantics” which are based on a compositional hypothesis, i.e., on the idea that the terms can be broken down into further more general units of meaning, and are based on two precise assumptions: «1. i tratti semantici su cui si basa la scomposizione costituiscono un insieme di condizioni necessarie e sufficienti […] per la definizione del significato; 2. tali tratti costituiscono un inventario limitato di termini primitivi». 35 the theoretical categories used by eco in his reflection on the encyclopaedic model are largely taken from deleuze, guattari (1972; 1980). 36 written between the years 268 and 270, the work is also known by the title “on the five voices”, to indicate the ways (κατηγορούμενα, praedicabilia) by which, according to aristotle, a predicate can be attributed to a subject which porphyry divides into five classes: genus, species, difference, property, and accident. https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 17 and linear connections, in which eco pinpoints the canonical formulation of the “strong thought”, prone to foundation, and endowed with the ambition of mimicking the structure of reality, which influenced much of later western logic. in this way, a systematic theory is outlined, focusing on the identification of essences and hierarchies and thus providing “for the definition of a term (and the corresponding concept), only those properties necessary and sufficient to distinguish that concept from others” (eco 2007: 13), that is, those minimal elements that cannot be further analysed (the primitives) which, through their articulation, allow us to represent an indefinite number of lexical units. the supreme genus – we read in the introduction to aristotle’s categories – is that above which there cannot be another higher genus; instead, the ultimate species is that under which there are no other subordinate species; intermediate between the supreme genus and the ultimate species are other terms, which are at the same time genera and species, in relation to different subjects (porphiry 1887). in this and other passages, the philosopher summarises the principles that the subsequent philosophical tradition would translate graphically into the famous arbor porphyriana or scala praedicamentalis: a table showing the coordination and subordination of genera and species. below is an example of this arboreal diagram: high genus (γενικώτατον) substance (οὐσία) difference diff erence corporeal intelligible body (σῶμα) animated inanimate living (ἔμψυχον) sensitive vegetative animal (ζῷον) rational irrational thinking (λογικὁν) mortal immortal lowest species (εἰδικώτατον) man (άνθρωπος) – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – individuals (οἱ κατὰ μέρος ἄνθρωποi) socrates, plato, aristotle etc. https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 18 the ambitious idea contained within this theoretical framework is the proposal to build a classificatory system in which, concerning the genera and species, there is a purely formal and vertical relationship between (using terminology foreign to neoplatonism) hypernymous and hyponymous terms. for example, if we consider three levels of the tree, the intermediate one will be a species with respect to the level above it and a genus with respect to the one below it. from the supreme genus (substance), we descend, through the various specific differences, to the lowest species (in this specific case, the human being is understood as a mortal rational animal), and then finally arrive at the individuals. however, the main aspect that makes the aristotelian-porphyrian model the prototype of dictionary semantics is its closed structure, developed in a way that excludes other genera above the supreme genus and other species below the lowest species – it is an indispensable defining condition. the inconsistency of this according to eco’s (2007: 20) opinion, is founded on the fact that it does not contemplate certain differences (for example, the ones between man and horse). to include them, it would be necessary to integrate the tree with subsequent disjunctions (dividing the species of mortal animals into rational and irrational, even if it would then be necessary to introduce a further criterion to distinguish horses, for example, from donkeys). the “differences are necessary and sufficient conditions to distinguish one being from another and make the definiens coextensive with the definiendum, so that, if a mortal rational animal, then necessarily man, and vice versa” (ibid.). however, to meet this condition, the only solution is to allow a difference to appear under multiple genera (and multiple times), thereby undermining the finiteness of the tree. and if the closure of the tree/dictionary cannot be guaranteed, then it becomes potentially open, infinite, and the purity criterion irremediably collapses, making it “a context-sensitive structure, not an absolute dictionary” (eco 1985: 473). the functioning of porphyry’s tree, which is based on the addition of differences to genera in order to create species, depends on elements truly endowed with encyclopaedic properties whose provenance is necessarily external to the tree. these elements are precisely the differences, that is, the accidents (and being as such of indefinite number) and qualities (in fact predicated of substance). therefore, “the tree of genera and species, however it is constructed, explodes into a dust cloud of differences, into an infinite whirlwind of accidents, a non-hierarchical network of qualia” (ibid.: 475). as a consequence of these factors – eco argues – the extension and branching of the tree are unpredictable and potentially infinite, both upwards and downwards. porphyry’s tree, following this deconstruction, dissolves into a sort of labyrinth with infinite ramifications devoid of hierarchies. 6. applications in the field of the constitutional interpretation theory the theses considered so far seem to provide some relevant indications in terms of the constitutional interpretation of rights theory. the use of this approach, it should be noted, does not fulfil the function of indicating the substantive criteria to conduct a correct interpretation of the constitutional provisions which confer rights. it cannot tell us, for example, what is the best possible interpretation of the constitution in certain circumstances, how information is represented and acquired, what are the rules of inference, the criteria https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 19 for selecting the premises, and stopping factors within the interpretative processes. its objective is rather to illuminate several considerable aspects that characterise the contextual dependence of the interpretation of constitutional rights. shifting attention from the level of interpretation “in a very broad sense” (the understanding of any object as a cultural phenomenon)37 to that of legal interpretation, it must first of all be recognised that, unlike ordinary interpretative and communicative contexts, in this field the provisions are taken as a starting point for an inferential elaboration and the subsequent production of norms. this process occurs within a given legal system – most of the time in the context of application, with an unavoidable authoritative and practicalinstitutional dimension, as well as in the doctrinal context, through the elaboration of the normative texts’ content for essentially theoretical purposes. the preceding analysis should first of all lead to conceiving that particular argumentative and decision-making technique which establishes balancing as an operation instrumental to the attribution of meaning to the constitutional provisions which confer fundamental rights – functional, therefore, to the determination or specification of their content. secondly – but the two themes appear closely connected – the very distinction between “abstract interpretation” and “concrete interpretation” (of rights) is particularly precarious.38 bearing in mind how problematic the separation between the analytical and the synthetic is, it becomes to understand that even the abstract interpretation of rights is always necessarily conditioned by the reference to concrete cases. more generally, from a semiotic perspective, it is difficult to separate clearly legal theory from interpretation as application – as roberta kevelson (1988: 36, italics in the original) points out – «[d]iscourse as a mode of communication is action, and every action presupposes a consequence». an approach that inserts interpretative processes into a broader hermeneuticsemiotic framework should help accepting that the theoretical complications present in the legal field are ultimately not dissimilar from those found in any other interpretative activity which implies the use of a historical-natural language. using husserlian terminology, it can be stated that an awareness of this type, among other things, should lead the legal theorist and the jurist-interpreter to move away from a “naïve-natural” attitude to a phenomenological or transcendental perspective.39 in this context, there are some relevant clarifications. [1] rights do not rain from the sky, they do not represent a gift from nature but develop as a succession 37 see, on this notion, dascal, wróbleski (1988). 38 in riccardo guastini’s classic description, the interpretation “in abstract” (“text-oriented”) consists «nell’identificare il contenuto di senso – cioè il contenuto normativo (la norma o, più spesso, le norme) – espresso da, e/o logicamente implicito in, un testo normativo (una fonte del diritto) senza riferimento ad alcuna fattispecie concreta»; in contrast, the “concrete” (“fact-oriented”) interpretation consists «nel sussumere una fattispecie concreta nel campo di applicazione di una norma previamente identificata ‘in astratto’» (guastini 2011: 15-16; see also, with some divergence, id. 2004: 83, f. 16). 39 for a parallel between the role of the interpreter in the legal field and that of the interpreter tout court, please refer to the observations of colapietro (1989: especially 27-48); id. (2008). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 20 of different evolutionary processes: philosophical theorisation, positivization, generalisation, internationalisation, specification. historically – it can be stated with some caution – rights came to be in the western european world of the 16th and 17th centuries following tensions and dissents, claims and battles, and as a result of the interaction of various causes of a socio-economic, geopolitical and ideological nature: the birth of capitalism and the modern state, the progressive humanization of criminal and procedural law, the breakdown of religious unity and the spread of the protestant reformation, the discoveries of the physical and astronomical sciences, the emergence of a new individualistic and rationalist mentality etc. on the other hand, in their genetic and developmental process, rights reflect the legacy of various cultural and philosophical currents such as renaissance humanism, modern natural law, enlightenment philosophy, political liberalism, democratic and socialist thought etc., which, from the “transition to modernity” up to the present day, have favoured the valorisation of the human being as an autonomous individual.40 [2] as a result of these structural constraints, contemporary constitutions, especially in their substantial sections in which they recognise a heterogeneous and conflictual set of constitutional rights, principles, and interests, always presuppose an unavoidable theoretical-doctrinal background to which a certain internal coherence of the text is due. this aspect does not imply at all denial of the possibility of collisions between rights, tragic dilemmas, profound interpretative disagreements, trade-offs, or hard cases within a given legal system. on the contrary, this thesis is absolutely compatible with the recognition of the inevitability of these phenomena (and the correlative need to resort to appropriate decision-making strategies to resolve them). finally, it is also logically independent of the problem, of a philosophical-political nature, of whether the task of managing it should be up to the judge or the legislator. [3] if fundamental rights are in some certain sense specifications (progressive determinations, concretisations of the content) of the rights advocated by the background ethical-political doctrines, a moral reading of the constitution tends to restore a pluralist framework according to which the constitutional provisions, generally formulated in an abstract and generic manner, necessarily express indeterminate principles. [4] these systematisation operations are strongly influenced by various elements of an intraand extra-textual nature (interests, intentions, preferences, “pre-theoretical” intuitions etc.). the meaning of words and legal statements, which are considered prescriptive linguistic acts, is largely determined by the “context of interpretation”41 and by the social interaction between the subjects called to participate in discursive, argumentative, and communicative practices. even in the legal field, naturally, the problem of determining the perimeter of the contents that must be considered to interpret the constitutional provisions attributing fundamental rights arises. furthermore, the need to explain the reasoning processes that lead judges to make correct or justified decisions (provisionally considered) in matters of rights is also established. a risk inherent in any pragmatist or contextualist approach 40 this approach is typically defended by gregorio peces-barba martínez (see in particular 1986-1987) in most of his writings dedicated to the topic of fundamental rights. 41 cf., for this notion, cappelen (2009). https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 21 consists of being merely able to give an ex-post account of what happens in argumentative practice, assigning an ultimately infallible role to the tradition consolidated over time and to the social interaction within the legal community, concerning what can be considered, depending on the circumstances, as correct constitutional provisions conferring rights. in a semiotic perspective that regards legal cases as sign functions and that highlights the relevance exercised by the contextual dependence of the meaning (of the legal propositions), the intrinsic limitations that characterise the informational content available to interpreters emerge in the selection of legal material. the problem of identifying boundaries in the selection of relevant legal material can be solved by referring, in the elaboration of an inference theory, not to the entire belief system of the legal agents but more modestly to that part of beliefs considered relevant in the particular context of reference. according to this perspective, our initial moral judgments toward which we have greater confidence require comparison with general principles, if not outright with a complete moral theory capable of explaining them. this opens up the possibility for revising our initial judgments, depending on the extent to which we can “adapt” such judgments to more general principles. this process of continuous reformulation of content tends to produce, as a result, a situation of provisional equilibrium in which immediate intuitions and moral principles balance each other. this stage will then be followed by a phase of instability that precedes a further equilibrium, and so on ad infinitum.42 just as there are no guarantees in the field of moral choices that our projections for the future will not clash with recalcitrant experiences, forcing us to revise or subvert the relevant concepts underlying our reasoning, in the same way, in the field of legal interpretation, judicial decisions do not follow a universally binding rule, pre-established at the judgment and applicable to all future cases with similar characteristics. since courts cannot deal with legal disputes by applying a previously established specific rule of hierarchy, only being able to intervene on the basis of concrete circumstances, it is reasonable to speak of rules of conduct that cannot be peremptorily applied in future cases. it is logically possible for a universal criterion for resolving antinomies to be followed within a given legal decision, but it does not appear sensible, due to our inevitable limitation of knowledge, to exclude in principle the possibility of revising such a reasoning. in the process of interpretation-application of law, judges are not faced with external “objects” independent of their personal observations43; rather, they tend to 42 for the rawlsian conception of reflective equilibrium, cf. rawls (1971: 19-21). the relevance of this insight for legal theory is also highlighted by maniaci (2008); celano (2013: 101-102). 43 on the topic of the non-uniqueness and non-objectivity of legal interpretation (the criteria for identifying/ applying the law and determining its validity strictly depend on argumentative processes and reasoning practices aimed at attributing meaning to regulatory propositions), please refer in particular to maccormick (1978); aarnio, alexy, peczenik (1981); dworkin (1986); aarnio (1987); gadamer (2004). https://doi.org/10.17561/tahrj.v22.8512 unlimited semiosis, encyclopaedic semantics, and interpretation of rights the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 22 interpret the provisions based on an internal comparison with the substantive dimension of the constitutional text, being influenced, among other things, by their own immediate moral intuitions, the “cultural crystallizations” that have sedimented outside to the legal text (häberle 2001: 33), and the general ethical principles of the legal culture of reference. the transition from the provisions selected by the judge to the rules can be conceived as a fundamentally entropic process of interdependence and interaction between the interpreters and the available normative materials (judicial precedents, paradigmatic cases, para-normative acts etc.). based on a necessarily finite set of previously selected information and interpretative strategies, judges may arrive only at a provisional decision, deemed correct all things considered, and often guided by substantive assumptions of practical reasonableness. 7. concluding remarks in this paper, i have attempted to assemble an adequate analytical toolkit to understand the influence exerted by elements of an intraand extra-textual nature on the constitutional interpretation of rights. most notably, in contrast with a linear conception of the inferential chain, i defended the superiority of a “encyclopaedic instructional semantic model” as a paradigm for constitutional interpretation, and tried to indicate a solution to the problem of circularity and potential conservatism of argumentative practices. finally, i identified another considerable parallel between the role played by the so-called “semiotic habits” and the criteria for stabilising meaning in the legalconstitutional field. to wrap up the paper, i summarise here the main theoretical acquisitions achieved by this analysis. the constitution is a body of meaning endowed with its own wholeness, although constitutively open to multiple interpretations: a set of propositions or statements that tend to be mutually supportive – the interpretation of which is constantly renewed. the textual corpus, according to this perspective, contributes to determining the meaning of the individual statements: each of these parts is strictly connected to the others and to the whole constitution itself, fitting together within the dynamism of a legal-interpretative practice. by virtue of its characteristics, the interpretation of constitutional provisions that recognise fundamental rights presents itself as an activity guided by a certain degree of pre-understanding regarding their content. assuming that coherence relations are symmetric, it seems possible to avoid that propensity towards circularity and conservatism that represents a problem constantly found in coherentist theories. the identification of the substantive conceptions of public good underlying the relationships between rights consists in an operation of an interpretative and reconstructive nature – a work of reformulation and readjustment of the peculiar set of statements that is the constitutional text. different standards of legal justification of rights utilised in decision-making depend on contextual and, therefore, contingent factors. equally, more or less established domestic linguistic customs, along with their progressive adaptation to the different enunciative circumstances, have a significant impact on determining the standards of correctness of interpretative decisions. https://doi.org/10.17561/tahrj.v22.8512 michele zezza the age of human rights journal, 23 (december 2024), e8512 issn: 2340-9592 doi: 10.17561/tahrj.v23.8512 23 references aarnio, a. 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(1979), legal reasoning in legal interpretation, in a. aarnio (ed. by), meaning and truth in judicial decision, jurídica, helsinki, 74 ff. received: 12th december 2024 accepted: 1st march 2024 https://doi.org/10.17561/tahrj.v22.8512 https://doi.org/10.1017/cbo9780511816260 unlimited semiosis, encyclopaedic semantics, and interpretation of rights 1. introduction 2. some remarkable aspects of the language of rights within the contemporary constitutionalism 2.1. normative indeterminacy and ethically connoted notions 2.2. interpretative problems and argumentative techniques peculiar to the constitutionalism of ri 3. the semiotic loan in the drafting of constitutional provisions 4. unlimited semiosis and particularist reasoning: semiotic habits and criteria for stabilising m 4.1. the triadic structure of interpretation in the reconstruction of c.s. peirce 4.2. pre-understanding and defeasibility in constitutional interpretation 5. encyclopaedic semantics 6. applications in the field of the constitutional interpretation theory 7. concluding remarks references dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 143 dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence* caroline hansen1 abstract: the european court of human rights (the court) considers gender identity a fundamental aspect of the right to respect for private life and has taken important steps towards ensuring that it is implemented in council of europe states. the court has thus held that trans persons cannot be required to undergo sterilisation surgery or treatment to have their gender legally recognised. yet certain requirements remain. where the legal recognition of trans persons’ gender identity depends on ‘verification’ by a third-party, there is a risk of having stereotypical visions of gender enforced, against the general aim of dismantling gender stereotypes for all. this paper analyses gender stereotypes in the court’s cases relating to trans persons, and explores alternatives to current systems of legal gender recognition that may aid in dismantling them. keywords: gender stereotypes, transgender, european court of human rights, case-law, deregistration. summary: 1. introduction. 2. the european court of human rights’ approach to gender identity. 3. gender stereotypes in the european court of human rights’ case-law. a) gender stereotypes in the requirements imposed on applicants. b) gender stereotypes in the language of the judgments. c) gender stereotypes in gender equality cases. d) distinctions in the court’s approach to gender identity and gender equality cases. 4. possibilities for elimination of gender stereotypes from case-law. a) the court’s anti-stereotyping power. b) a role for applicants in the framing of cases?. c) possibilities for change on a systemic level. i. depathologisation. ii. self-determination. iii. categorical expansion. iv. deregistration. 5. conclusion. 1. introduction the european court of human rights (“the court” or the “strasbourg court”) has held that “states may not impose traditional gender roles and gender stereotypes”, in the case of konstantin markin v russia (2012, para 142). the court thereby took a firm stance in favour of the elimination of gender stereotypes, which was arguably highly necessary, when following timmer’s argument that “[i]f the court wants to go to the roots of structural gender discrimination it should dismantle gender stereotypes” (2011, p. 713). it is then interesting to study whether the court has applied these principles in its own caselaw, for persons of all gender identities. indeed, the court set out this principle in a case relating to gender equality between women and men. however, when the court decides on * this paper is based on the author’s master thesis, ‘stereotyped recognition – trans identities and conceptions of gender in the european court of human rights’ jurisprudence’ (july 2021) https://repository. gchumanrights.org/bitstream/handle/20.500.11825/2384/hansen%20caroline.pdf?sequence=1. 1 european parliament, legal service, trainee (the contents of this article and its author do not reflect and are not affiliated with the positions of the european parliament). email: caroline.hansen@hotmail.fr. https://repository.gchumanrights.org/bitstream/handle/20.500.11825/2384/hansen%20caroline.pdf?sequen https://repository.gchumanrights.org/bitstream/handle/20.500.11825/2384/hansen%20caroline.pdf?sequen dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 144 cases relating to the gender identity of trans2 persons, it does not tend to demonstrate the same consciousness of gender stereotypes. where the court creates distinctions between transgender and cisgender applicants, it enables the application of different standards and expectations. stereotypes have been defined by cook and cusack as “a generalized view or preconception of attributes or characteristics possessed by, or roles that are or should be performed by, members of a particular group” (2010, p. 9). though the focus of efforts to dismantle stereotypes tends to be on “harmful gender stereotypes” (svp v bulgaria 2012, cedaw committee, para 9.6) or on “wrongful gender stereotypes” (rkb v turkey 2012, cedaw committee, para 8.8), it is argued that gender stereotypes may be harmful in all their forms, even when they do not seem negative (un ohchr 2013, pp. 18-19). indeed, even seemingly positive or innocuous stereotypes have the potential of imposing undue expectations and burdens upon their recipients, who may not conform to these stereotypes. it has also been found that where stereotypes are “statistically sound” generalisations, relying on them may still enhance profiling, and may lead to further marginalisation of certain groups of people (schauer 2003, pp. 16-17, 187-188). therefore, if the court relies or enables reliance on gender stereotypes in its case-law, it may not directly harm the applicants themselves, but it may have negative effects on the applicants’ community as a whole. where that community is the trans community, it becomes especially important to avoid any further marginalisation, considering the heightened discrimination and violence trans persons are already subjected to as a result of their gender expression (fra 2014, p. 3). this paper will therefore analyse whether the european court of human rights has applied its stance against gender stereotypes in cases of gender identity, relating to trans applicants, equally as in cases of gender equality, and how the court may play a role in the elimination of gender stereotypes from its judgments. this paper will first review the case-law of the court related to gender identity, and legal gender recognition for trans persons (ii). it will then seek to analyse gender stereotypes in the court’s case law, related both to gender identity and gender equality, to determine whether the court approaches its applicants differently (iii). lastly, this paper will review various ways in which the court and its actors may play a role in dismantling gender stereotypes in a manner that is inclusive of trans persons (iv). 2. the european court of human rights’ approach to gender identity in the court’s case-law, ‘gender identity issues’ have been understood to be those relating to trans people (european court of human rights 2021, factsheet – gender identity issues). the court’s approach to these gender identity issues has greatly evolved over time, reflecting evolutions in society and clearer understandings of the socially 2 trans will be understood as an umbrella term in the context of this paper, encompassing persons of all gender identities who do not correspond to their sex assigned at birth (iacthr 2017, para 32(h)). this may include transgender women, transgender men, non-binary persons, genderqueer persons, gender fluid persons, agender persons, bigender persons, or any other person identifying with gender diversity. caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 145 constructed nature of gender. this brief overview of the court’s case-law as it relates to gender identity will focus on cases relating to legal gender recognition. the first case dealing with the legal recognition of a trans person’s gender was rees v uk in 1986. in this case, a trans man sought to have his gender identity legally recognised, which was refused by uk authorities. the court held that this refusal did not constitute a violation of the european convention on human rights, highlighting the administrative consequences to the general population (rees v uk (1986) paras 43-44). referring to the annotation of the birth register to reflect the applicant’s gender identity, the court held that “the change so recorded could not mean the acquisition of all the biological characteristics of the other sex” (para 42(b)). the court reiterated this approach in its case cossey v uk in 1990. the court eventually recognised in the case of b v france that trans persons presented a “discrepancy between their legal sex and their apparent sex” (1992, para 59(a)), and consequently put into question the immutability of sex, ordering that the birth certificates of trans persons in france should be amended, as they regularly are for various purposes (1992, para 52). this however distinguished the case from the previous english ones, as it concerned a french specificity, and did therefore not yet set out any general rights relating to legal gender recognition. broad recognition of what has since been considered a general ‘right to gender identity’ occurred in the case of goodwin v uk. in that case, the court considered the failure to recognise the applicant’s gender identity a violation of her right to private life (goodwin v uk 2002, para 93), based on “clear and uncontested evidence of a continuing international trend” towards the legal recognition of the gender identity of “post-operative transsexuals” (2002, para 85). this right to gender identity has nonetheless remained a conditional right, though requirements have evolved over the years since goodwin v uk. the court has for instance accepted reliance on the ‘divorce requirement’, which prevents married trans persons from legally changing their gender unless they have divorced or converted their marriage into a civil partnership, in order to avoid turning what had been considered a heterosexual marriage into a same-sex one, in the states not recognising same-sex marriage yet (hämäläinen v finland (2014)). while goodwin v uk had allowed access to legal gender recognition only to trans persons having undergone “gender-reassignment surgery”, by referring to the recognition of “post-operative transsexuals” (2002, paras 76, 93), the court has since reviewed its case-law on the matter. in the 2017 case of ap, garçon and nicot v france, the court held that “sterilisation surgery or treatment” could not be relied on as requirements for legal gender recognition of trans persons (2017, paras 131-132). the court insisted on the “impossible dilemma” that this placed the applicants in. indeed, under this requirement, applicants were forced to choose between undergoing surgeries or hormonal sterilisation, whether or not those were desired, thus giving up their right to physical integrity, or refusing to undergo sterilising treatment or surgeries, and thus giving up their right to dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 146 gender identity (2017, para 132). the court reiterated this stance in 2021 in the case of x and y v romania (2021, para 165). nonetheless, while ap, garçon and nicot v france brought much-anticipated changes to the jurisprudence of the strasbourg court, in bringing forward the right to gender identity, it has not declared an absolute right to gender identity. the court has indeed held that a member state requiring a psychiatric diagnosis of a gender identity disorder does not violate article 8 of the european convention on human rights, ensuring applicants’ right to private life (ap, garçon and nicot v france (2017) para 141). the right to gender identity therefore remains conditional, and subjected to external scrutiny. 3. gender stereotypes in the european court of human rights’ case-law the court has made advances in its jurisprudence, ensuring broader applicability of the right to gender identity. but while these improvements have made a difference in the accessibility of legal gender recognition in member states of the council of europe, through lowered requirements, the court should remain under attentive scrutiny in its approach to trans persons and gender identity rights. while the court has highlighted the need to dismantle gender stereotypes, it must be ensured that the court applies this itself, in the approach it takes to trans applicants. while the approach of the court to trans persons, in its application of gender stereotypes, could be especially highlighted in comparison with the cases of cisgender persons, such an approach is difficult, due to the lack of specification in cases of whether applicants are cisgender. therefore, while gender identity cases will explicitly mention the trans identity of the applicants, no cases mention the cisgender identity of applicants. while this information may simply seem irrelevant in judgments, that is not the case where it comes to scrutinising the attitude of the court, and any potential differences in treatment between cisgender and transgender applicants. comparisons will therefore be drawn between the approach to applicants in gender identity cases, and applicants in gender equality cases, in order to get as close as possible to an analysis of the differences in approach between transgender and cisgender applicants, where the court does not provide this information. a) gender stereotypes in the requirements imposed on applicants where gender recognition is conditional upon certain requirements, as it is in the court’s case-law, those requirements should be subjected to careful scrutiny. as established in ap, garçon and nicot v france, the court enables gender recognition to be dependent on a psychiatric diagnosis. this approach is referred to as the pathologisation of trans persons, where legal gender recognition is made conditional upon “a diagnosis of gender dysphoria, gender identity disorder or transsexualism” (van den brink and dunne 2018, p. 63). this approach enshrines in the case-law the belief that trans persons require external validation of their identity for it to be genuine. the court takes this view caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 147 in noting that a psychiatric diagnosis “is aimed at safeguarding the interests of the persons concerned in that it is designed in any event to ensure that they do not embark unadvisedly on the process of legally changing their identity” (ap, garçon and nicot v france (2017) para 141). the court therefore takes a paternalistic approach to trans persons’ rights, implying a lack of autonomy and responsibility in making major decisions for oneself. furthermore, psychiatric diagnoses of gender identity disorders have been recognised to be unreliable for lack of legitimate external tests, with criteria relying on gender stereotypes (transgender europe et al. 2017, para 21). a past version of the diagnostic and statistical manual, the dsm-iv-tr of 2000, relied on highly stereotyped factors to diagnose a gender identity disorder. some diagnostic characteristics are described by spade as “stereotypically gender inappropriate behavior” (spade 2003, p. 24). indeed, they included, for young boys, preferring “traditionally feminine activities” and playing with girls, liking dolls, and avoiding brutal or aggressive activities. the opposite characteristics were relied on for the diagnosis of young girls. the dsm-iv-tr itself specifies that there exists no specific diagnostic test for gender identity disorders. consequently, by accepting states’ reliance on the diagnosis of gender identity disorder, the court effectively endorsed the use of unreliable, illegitimate, and highly stereotyped diagnostic tests. the court accepted the criteria of a diagnosis of a gender identity disorder without adequate scrutiny into the implications of such a test. the court can therefore be said to have perpetuated gender stereotypes and reliance on them in medical and judiciary fields. this application of stereotypes in the medical field has serious consequences for trans persons who need a gender identity disorder diagnosis to fully exercise their rights, receive legal recognition, or qualify for desired medical care. indeed, such a system forces trans persons to simplify complex identities into stereotyped conceptions of gender identity. spade criticises that “[t] he medical approach to our gender identities forces us to rigidly conform ourselves to medical providers’ opinions about what “real masculinity” and “real femininity” mean, and to produce narratives of struggle around those identities that mirror the diagnostic criteria of gid [gender identity disorder]” (spade 2003, pp. 28-29). while acknowledging that some trans persons do fit those narratives and stereotypes, spade condemns the “medical gatekeeping” which follows from forced hyper-masculinity and hyper-femininity (spade 2003, p. 28). such requirements take away from the agency of trans persons in determining their own gender identity, and further stereotype their identities. furthermore, by allowing the reliance on gender stereotypes to effectively determine gender identity, the court is implicitly accepting such stereotypes when it comes to trans people, though it had purported to eliminate such stereotypes (konstantin markin v russia (2012), para 142). while ‘gender identity disorder’ has been removed from following dsms sections on mental disorders, the use of the words by the court still carries the pathologising and stigmatising weight associated with them originally. reliance by the court on this requirement therefore remains deeply problematic, and forces trans persons into narrow and stereotyped conceptions of gender. dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 148 b) gender stereotypes in the language of the judgments while the criteria accepted by the court set a precedent of judicial acceptance of stereotypes, the language used by the court also carries a significant weight. the court, through its language, has the power to convey and entrench outdated and stereotyped conceptions of gender, but it also holds great power to instigate change and inclusion. judgments relating to the gender identity of applicants reference multiple types of gender stereotypes. for instance, these judgments regularly convey gender stereotypes related to the social behaviour of applicants. these mentions take the form of a judgment highlighting that the applicant “behave[d] like a boy”, in yy v turkey (2015, para 9), or “always behaved like a girl”, in ap, garçon and nicot v france (2017, para 8), or “began from adolescence to behave like a boy in his way of dressing and his social relations”, in x and y v romania (2021, paras 4, 34). by failing to address the link created between social behaviour and gender identity, the court allows the perpetuation of gender stereotypes according to which girls and women, and boys and men, must act in certain ways depending on their gender identity, in order to fit in. while gendered norms of behaviour can be seen in the court’s judgments, it is also frequent to see stereotypes related to the gender expression of applicants appear. for instance, applicants are often presented in relation to their physical appearance. in ap, garçon and nicot v france, it is mentioned that the first applicant’s “physical appearance has always been very feminine” (2017, para 8), while the second “dressed as a woman and was perceived by others as a woman” (2017, para 35), while in x and y v romania it is noted that the applicant started to “behave like a boy in his way of dressing” (2021, paras 4, 34). such references to physical appearance and attire perpetuate a strong link between gender identity and gender expression, and maintain expectations of stereotypical masculinity and femininity to fit into the boxes of gender. while many applicants might match social expectations of gender conformity, and gender expression may reinforce social recognition, such assimilations of gender identity and gender expression can cause great harm. first, this places expectations of gender conformity upon trans persons, leaving out those persons who do not or cannot fit into gendered standards of physical appearance, or who do not wish to conform to stereotypically gendered ways of dressing. secondly, by including such mentions of gender conformity as validating gender identity, the court perpetuates stereotypes that physical appearance and attire are determinants of gender identity, where such stereotypes have been fought against in the context of the fight for women’s rights. by relying on outdated ideas of what it means to dress like a woman or a man, such statements undermine decades and centuries of fighting for gender equality, for the rights of women and men to dress and act in ways that go beyond stereotyped expectations. furthermore, placing value on gender expression comforts the view that gender must be validated by the perception by others, implicitly giving social perception a validating role in legal recognition of gender. gender stereotypes may also appear in other insidious ways, notably by reliance on heteronormative standards in judgments. indeed, in yy v turkey, multiple mentions caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 149 are made of the applicant’s relationships with women. such mentions, used in the context of demonstrating a person’s gender identity, are harmful. by using the applicant’s relationships with women to validate his male gender identity, the belief that heterosexual relationships are the norm is upheld. this perpetuates heteronormative understandings of gender, and invisibilises trans persons who do not identify as heterosexual. lastly, in the case of x v macedonia, the court referred to the applicant as a “preoperative transsexual” (2019, para 69), implying that trans persons not having undergone surgeries are in a temporary situation, awaiting a final state. this mention made by the court itself is especially surprising, as this case was preceded by two years by the case of ap, garçon and nicot v france, in which the court held that surgical requirements could not be imposed on trans persons for their legal gender recognition, thus confirming that not all trans persons can or wish to undergo surgeries. this reflects the court’s stereotypes regarding the sex characteristics associated with gender, expecting trans persons to conform to cisgender norms. while the applicants in the cases cited above may have fit into a number of gender stereotypes, and raised a number of these stereotypes themselves in their testimonies, these stereotypes become problematic when they are not questioned. indeed, if gender stereotypes are to be efficiently dismantled, they must be named and challenged, and they should not be relied on. though reliance on stereotypes may not have affected the applicants’ cases, or positively affected their cases, such mentions of and reliance on gender stereotypes begs the question of how the court will react when a person who does not fit gender stereotypes seeks legal gender recognition. moreover, where such stereotypes are unquestioningly set out and relied on in the cases of trans persons, though they have been actively fought against in the context of cisgender persons for many decades, one can wonder whether the court creates a distinction between cisgender and transgender applicants, in their right to be free from gender stereotypes. c) gender stereotypes in gender equality cases the court held in the case of konstantin markin v russia that “states may not impose traditional gender roles and gender stereotypes” (2012, para 142). in its cases relating to gender equality, the court has made consistent efforts to name and address gender stereotypes, though not all these efforts have been equally successful. the court indeed tends to highlight where the government relies on gender stereotypes in its arguments in gender equality cases. in ünal tekeli v turkey (2004), the government argued that the obligation on married women to take their husband’s surname could be justified by the aim of “reflecting family unity through a joint family name” (para 68). the court pointed out the stereotypes based on gender roles reflected in this view, noting that the tradition of married women taking their husband’s surname “derives from the man’s primordial role and the woman’s secondary role in the family” (para 63), while stating that a joint family name has no bearing on family unity (para 66), and that a joint family name may in any case as well be the wife’s surname or a jointly chosen one (para 64). dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 150 in carvalho pinto de sousa morais v portugal (2017), the portuguese court had considered that an applicant being 50 years old and having had two children diminished the importance of sex for her (para 16). the strasbourg court condemned this approach, and held that by handing down such a judgment, the portuguese court had portrayed “female sexuality as being essentially linked to child-bearing purposes” (para 52), which perpetuated stereotypes related to gender roles of women as destined to motherhood, and stereotypes relating to social behaviour around sexuality. similarly, in jurčić v croatia (2021), the court identified and condemned the stereotypes invoked by the government, which had contended that the applicant should not have taken up new employment while undergoing ivf treatment. indeed, the court held that this “implied that women should not work or seek employment during pregnancy or mere possibility thereof” (para 83), highlighting the stereotype related to gender roles and social behaviour that women’s role as child-bearers should take priority over other roles, and that women could not work while pregnant. in konstantin markin v russia (2012), a policy denied military men the same length of parental leave as military women, which the court held was “disadvantageous both to women’s careers and to men’s family life” (para 141), highlighting the stereotypes based on gender roles implied in this policy, of women as caretakers and men as breadwinners. the court further held that “states may not impose traditional gender roles and gender stereotypes” (para 142), highlighting the harm of such a policy. nonetheless, the court did not always identify and condemn the gender stereotypes which appeared in gender equality cases. indeed, in carvalho pinto de sousa morais v portugal, despite highlighting some stereotypes, the court did not explicitly identify or name the stereotypes appearing in the portuguese court’s reliance on gender roles in the context of domestic work carried out by the applicant (para 16). furthermore, in khamtokhu and aksenchik v russia (2017), the government argued that life imprisonment being exclusive to men was not discriminatory, by reason of women’s “special role in society”, which “above all” is “their reproductive function” (para 47), thus perpetuating gender roles by placing women’s value in their potential motherhood. in this case, the court held that women may be exempted from life imprisonment, as a measure of “public interest” (para 82), thus implicitly condoning the perpetuation of gender stereotypes. the court simply condemned the stereotype of “male toughness” perpetuated by this rule leaving only men to be sentenced to life imprisonment. this case was nonetheless exceptional, as the russian government had stated that a finding of a violation in this case would lead to all groups of offenders risking being sentenced to life imprisonment, rather than improving conditions for all by eliminating life imprisonment. the court choosing to allow these stereotypes to be perpetuated was therefore ultimately beneficial to the persons most affected by them. despite its effort to identify gender stereotypes in cases, the court is not immune to including stereotypes in its own reasoning. in jurčić v croatia, the court stated that “such a decision could only be adopted in respect of women, since only women could caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 151 become pregnant” [emphasis added] (2021, para 70). by portraying women as the only persons capable of becoming pregnant, the court is invisibilising the many trans men, and non-binary and other gender-diverse persons born with a uterus who may have the ability to become pregnant. this argument of the court is especially striking in light of its anterior jurisprudence in the case of ap, garçon and nicot v france, where it held that sterilisation surgery or treatment may not be required for legal gender recognition, thus implying that trans men may have their gender legally recognised, while retaining functioning reproductive systems and the possibility of carrying pregnancies, if they are able and willing to. the court, by conflating the ability to get pregnant with womanhood, linked womanhood to a biological foundation, in contrast with its previous jurisprudence. it must however be noted that this stereotype, though appearing in the case of a cisgender woman, affects only trans persons. it seems that the court did not take into consideration trans persons in this case, merely because they were not directly involved. d) distinctions in the court’s approach to gender identity and gender equality cases from these observations, it can be concluded that while the court does not succeed in highlighting all gender stereotypes mentioned before it either in gender identity or gender equality cases, it consistently fails to address stereotypes where they appear in gender identity cases. while the court must undoubtedly improve its ability to name and point out gender stereotypes in all cases, it has already made important efforts to do so in gender equality cases, and must now work on achieving the same in gender identity cases, rather than ignoring the harms brought on by reliance on stereotypes in the context of trans persons. it must also be noted that the stereotypes referred to in gender equality cases and gender identity cases are often different. gender equality cases tend to contain stereotypes relating to gender roles, whereas gender identity cases tend to focus on gender expression, with both types of cases containing references to stereotypes linked to the social behaviour of applicants. this difference in the types of stereotypes may entail a need for the judges of the court to become better informed about different types of gender stereotypes, and where those may arise. while gender stereotypes may be referred to in terms of gender roles in some international instruments, such as the convention on the elimination of all forms of discrimination against women (cedaw 1981, article 5a), gender stereotypes are an incredibly broad notion, and they show up in a variety of ways. lastly, it can be noted that while gender stereotypes appear in judgments relating to both gender identity and gender equality, their sources vary. indeed, in gender equality cases, stereotypes are most often brought up by the government or the policies it is defending. however, in gender identity cases, stereotypes often appear in the facts of the judgment, in the testimonies of the applicants’ families for instance, and are thus brought up by the applicants and their lawyers themselves. this distinction may explain why the court is more inclined to counter stereotypes where they are brought up by the party opposing the applicant, rather than by the applicants dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 152 themselves. nonetheless, naming stereotypes does not have to be done to the detriment of the applicants, but may merely serve as a way for the court to highlight that reliance on stereotypes is not necessary to the success of an application, where that truly is the case, as it should be. 4. possibilities for elimination of gender stereotypes from case-law to eliminate gender stereotypes from the courts, and from legal gender recognition at large, several alternatives and possibilities exist. dismantling gender stereotypes will take time and widespread systemic change, but a combination of efforts from various actors may bring about meaningful improvements. a) the court’s anti-stereotyping power while the court may not hold enough power to entirely dismantle systems of legal gender recognition riddled with gender stereotypes, the court does have a responsibility to identify and address gender stereotypes when they appear in cases brought before it. as highlighted by cook and cusack, naming stereotypes carries a vast power, and ensures that stereotypes are recognised and questioned (2010, pp. 39, 54). a realistic and immediately available step for the court to take is therefore the “antistereotyping approach”. this approach is defined by timmer as entailing for the court not to rely on “harmful (gender) stereotypes in its own reasoning” and to “name gender stereotyping whenever it occurs on a national level and proceed against it as a particularly damaging form of discrimination” (timmer 2011, p. 717). through this approach, timmer proposes to analyse gender stereotypes and the harm they could potentially cause in a comprehensive manner, with the aim of “exposing and contesting the patterns that lead to structural discrimination” (timmer 2011, p. 725). for the court, taking such an anti-stereotyping approach would entail being “continuously critical” and being “interrogative of the underlying social patterns and beliefs” which have led to the situations at hand (timmer 2011, p. 737). thereby, the court may take steps towards uncovering the reasoning behind the presence of gender stereotypes in their cases, whether they appear through the applicants’ own arguments, other actors in the case, or the court’s judgment itself. in looking at these underlying factors which contribute to the perpetuation of stereotypes, the court may question its biases and assumptions, and seek to set out jurisprudence which does not perpetuate stereotypes, and even attempts to combat and dismantle them. such an approach will require the court to be attentive, by carefully choosing the language of judgments, and analysing the implications of the requirements and principles it sets out. this approach will also require the judges to question their own underlying biases, to adequately “problematise the ‘naturalness’ of stereotypes” (timmer 2011, p. 737). where gender stereotypes are so deeply entrenched in society, it can seem unrealistic to expect judges of the court to notice them, adequately respond, and eventually dismantle them. indeed, information on the harmfulness of gender stereotypes, their prevalence, and their insidiousness must be made available to the judges of the court, to demonstrate the importance caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 153 of the issue and its ramifications, and to unlearn biases accumulated over many years. cook and cusack have suggested that “[t]raining programs could invite judges to analyze how wrongful gender stereotypes have become embedded in court decisions, and how such stereotypes have been or can be dismantled and remedied” (2010, p. 83). such training programmes would enable judges, and possibly other jurists contributing to these judgments, to better notice stereotypes, and see the harm that they do, to encourage their effective dismantling. b) a role for applicants in the framing of cases? as established in section iii.d., applicants often tend to raise gender stereotypes themselves. this poses the question of the potential role to be played by the applicants and their lawyers in ridding the court’s judgments of gender stereotypes. spade argues that while one person winning their case may entail increased rights for the group they belong to, it must nonetheless be ensured that the opposite does not occur, where one person’s fight diminishes the rights of the group as a whole (spade 2003, p. 36). this argument is illustrated by the example of a trans applicant having undergone a medicalised transition, in which case this fact could be instrumentalised in their case, and result in such a medicalised transition becoming a requirement for the obtention of certain rights. this would then be similar to the case of a trans applicant perfectly matching social expectations of gender expression, social behaviour, heteronormativity and conformity to gender roles, which may result in the court expecting similar features from other trans applicants coming before it. one part of the solution to such harmful generalisations is therefore the inclusion of trans persons in discussions on the direction taken by the lawyers in their handling of these cases (spade 2003). spade believes that including trans persons in these discussions on their cases will increase awareness among lawyers of the great impact of such cases, and a better understanding of the communities affected by these verdicts, whose members may or may not resemble the applicants. thereby, spade places a moral obligation upon the applicants and their lawyers to fight not only for themselves, but also for the entire community. nonetheless, this approach can also prove problematic. indeed, while it has not been established whether reliance on stereotypes directly affects the outcome of trans applicants’ cases, these stereotypes may still form part of a “normalisation strategy” (camminga 2020, p. 255), whereby applicants purposefully portray themselves as easily relatable for the judges, who can identify themselves with these individuals and empathise with them. furthermore, catto has concluded that while the lack of adherence to gender stereotypes does not harm a person’s case, reliance upon stereotypes can still aid the cases of persons who do conform to them (catto 2019, para 47). consequently, expecting applicants who may have the possibility to rely on the judges’ biases to further their cases not to take up this opportunity seems not only unrealistic in many regards, but also deeply unfair. indeed, trans persons are exposed to numerous legal and social barriers, and suffer from the marginalisation of their community in society. it therefore seems that expecting trans applicants to fight for the entire community, and hold themselves to the high moral dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 154 standard of refusing to rely on a potential privilege, entails placing an additional burden upon persons who have already been greatly burdened by a system that excludes and marginalises them. it is undoubtedly a powerful choice for applicants not to rely on gender stereotypes that they conform to, where those could have appealed to the judges’ understandings of gender and played in their favour. however, taking such a stance should be a personal choice, as it may deprive the applicants of an advantage that could have helped their case. the burden of fixing a broken and exclusionary system should ultimately not lie with those who suffer from it, but those who have benefited from it for years and are now in a position to repair the errors of the past. while the court may not be well-informed enough to take such stances on its own without input from trans communities, there are ways to encourage the court to act without potentially jeopardising the cases of individual applicants. for instance, third party interventions in the cases studied in section iii did not contain gender stereotypes. third party interventions represent a way for organisations working for the promotion of rights to advocate for the advancement of rights for all, and the implementation of more just standards. these organisations, contrary to most individual applicants, have a general purpose and greater resources to advocate for larger groups. their participation may therefore enable the applicants to rely on all arguments available to them, while enabling the court to be reminded by the interveners that stereotypes should ultimately not play a role in the decision, but rather the right to self-determination of the applicant. c) possibilities for change on a systemic level while the court holds power in its language, and while the burden of dismantling stereotypes should not be borne by the applicants, the court also has control over the requirements and criteria that it sets out. though the court tends to rely on a european consensus or on a clear and continuing international trend (goodwin v uk (2002), para 85) to make major changes to its jurisprudence, it is undoubtedly possible for the court to gradually implement changes in its case-law and reference current trends in the leadup to a change in jurisprudence. the following notions may be applied in the shorter or longer term, but all hold the potential of eliminating at least some stereotypes from the court. i. depathologisation as of the current state of the case-law, the court follows a pathologising approach to legal gender recognition. pathologisation, as set out in section iii.a, is the approach by which a trans identity is considered an illness (theilen 2014, p. 328), making legal gender recognition conditional upon “a diagnosis of gender dysphoria, gender identity disorder or transsexualism” (van den brink and dunne 2018, p. 63), or even surgical or sterilisation requirements (cannoot 2019, p. 15). the 2017 case of a.p., garçon and nicot v france, by allowing the french state to require a psychiatric diagnosis of a gender identity disorder to recognise a trans person’s gender identity, upheld such a caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 155 pathologising approach. this approach has been largely contested, leading to a movement for depathologisation, understood as the elimination of psycho-medical requirements from legal gender recognition (cannoot 2019, p. 15). as set out in section iii.a., reliance on a diagnosis of a gender identity disorder reinforces gender stereotypes, through medically unfounded tests relying on gender stereotypes. depathologisation therefore offers an approach to legal gender recognition which may aid in the elimination of gender stereotypes from case-law, by removing stereotyped and unwarranted diagnoses. nonetheless, while depathologisation may enable the elimination of certain gender stereotypes from the assessment leading to legal gender recognition, it does not guarantee that gender stereotypes will be absent from the courts’ decisions. in france, where the legislation on legal gender recognition was depathologised in 2016 – a few months before the judgment in a.p., garçon and nicot was handed down – the civil code, in its article 61-5, requires applicants to demonstrate that they present publicly as the claimed sex, are known socially as the claimed sex, or have had their first name legally changed to match the claimed sex. while these requirements are no longer of a psycho-medical nature, they do still require the courts to interpret gender or sex, and how it is defined socially, or what “match[ing] the claimed sex” entails. gender stereotypes have therefore not been eliminated from the courts, according to catto, and still appear through these different requirements. french judges, in applying these requirements, have therefore focused on the gender expression of applicants, underscoring their conformity to gender stereotypes in their attire or makeup. courts have also at times looked to the social behaviour of applicants, highlighting stereotypically masculine jobs, or participation in sports, for instance (catto 2021, pp. 169, 179). therefore, while the elimination of psycho-medical requirements is absolutely essential for the respect of trans persons’ autonomy and self-determination, it cannot in itself ensure that gender stereotypes will be kept out of the courts. if gender stereotypes are to be dismantled, depathologisation will not be sufficient individually, and will need to be combined with other approaches for better effectiveness. ii. self-determination interestingly, the court has relied on the “right to self-determination” of applicants (ap, garçon and nicot v france, para 93), without giving the term the meaning commonly associated with it, but rather interpreting it as a conditional right for trans people to have their gender legally recognised. the self-determination model, in its academical sense, proposes to enable legal gender recognition through the submission by the applicant of “a statutory declaration affirming that they have a stable connection with the gender in which they wish to be recognised” (van den brink and dunne 2018, p. 59). this model thereby entails the depathologisation of legal gender recognition, while also removing other forms of external validation or verification. dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 156 the implementation of a self-determination model has received widespread support, notably from the council of europe (pace 2015, resolution 2048, para 6.2.1.), the human rights experts who set out the yogyakarta principles plus 10 (international commission of jurists 2017, principle 31.b.) and the inter-american court of human rights (iacthr 2017, paras 127, 129-131). these are all soft law instruments that the strasbourg court could draw upon in its future jurisprudence, as there are currently no other international human rights law instruments dealing with the human rights of trans persons (cannoot 2019, p. 28). by removing requirements necessitating scrutiny from judges, the self-determination model ensures that gender stereotypes can no longer be applied in the course of legal gender recognition. nonetheless, while self-determination provides autonomy to applicants in the process of their legal gender recognition, it may not be entirely sufficient in itself, so long as it exists within a binary framework, which remains limiting for many persons. iii. categorical expansion to overcome the limiting nature of the gender binary, it has been proposed to make more gender markers available, beyond ‘female’ and ‘male’. this model is known as categorical expansion. while certain versions of this model make a third gender marker available only for persons presenting a medically certified intersex variation, as is the case in germany (cannoot and decoster 2020, p. 39), other forms intend to broaden the scope of this model. the most relevant type of categorical expansion for the purposes of this research is categorical expansion within a self-determination framework, whereby all persons may choose to self-register as any available gender marker, which exists in california (holzer 2018, p. 24). thereby, non-binary persons without intersex variations may choose to self-register as such, and intersex persons may self-register as such without medical requirements. this will however depend on the number and types of gender categories made available under various applications of this model. however, adding a third gender or a larger number of categories comes with its own set of risks. though it expands choices beyond the binary, it runs the risk of promoting the notion that categorisation of sex or gender is required, as well as perpetuating the binary as a standard that only few do not fit into (quinan et al, 2020, p. 2). fausto-sterling asserts that "[t]he problem with gender, as we now have it, is the violence both real and metaphorical we do by generalizing," and argues that "[n]o woman or man fits the universal gender stereotype" (fausto-sterling 2020, p. 111). following this argument that binary categories are not right for anyone inexorably leads to the question of whether continued reliance on a binary gender system truly makes sense and is beneficial. nonetheless, fausto-sterling also argues that “recognizing a third category does not assure a flexible gender system” (2020, p. 112), which mak seconds, considering that the creation of an additional category of gender will merely depict those who identify with this new category as outsiders (2012, p. 14). where additional genders risk being portrayed as abnormal or uncommon, this reinforces a strict ‘female / male’ binary as the norm, with everyone else being mere exceptions to this norm, rather than reflections of an inflexible system in need of profound reshaping. caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 157 iv. deregistration as established in the previous sections, any type of scrutiny or attempt at categorising or controlling gender seems to bear risks. the abolitionist model proposes to do away with those problems, by deregistering gender, through removal of sex or gender markers from identity documents. indeed, cannoot and decoster argue that “the law will never be able to reliably document [gender]” (2020, p. 47), with gender being fluid and socially constructed. the abolitionist model thus prevents gender from being recorded inaccurately where it cannot be encompassed under current registration models. this may for instance prove useful for non-binary persons where states do not offer options for demedicalised recognition of non-binary gender, or genderfluid persons, where rigid registration systems only allow for the recognition of one gender, with insufficient flexibility. the abolitionist model also seeks to remove state control over gender, and to prevent it from continuing to “police its boundaries” (neuman wipfler 2016, p. 543). while the ultimate aim of deregistration is to remove sex and gender markers from official documents altogether, gradual steps will be required to achieve it. neuman wipfler proposes to start by eliminating gender markers form birth certificates, contending that children have no need for gender markers, whereas gender markers may impede on the lives of trans and intersex persons (2016, pp., 529, 534-539). nonetheless, neuman wipfler opposes the immediate removal of gender markers on other identification documents, considering such a move unachievable and potentially dangerous at this point in time, as many trans persons rely on their identity documents for social recognition, safety, and access to gender-congruent spaces (2016, pp. 540542). the registration of gender represents a prevailing attitude towards gender today, a view of gender that has its roots in habits rather than necessity (cannoot and decoster 2020, p. 41). the council of europe’s commissioner for human rights has enjoined states to “consider the proportionality of requiring gender markers in official documents” (2015, p. 9), which would require states to put thought into the reasoning behind registering gender and its usefulness. though this approach may seem like one for the future, unachievable for the time being, the truth may be very different. the belgian constitutional court, in 2019, declared parts of the belgian gender recognition act unconstitutional, and proposed several alternatives. one of these suggested alternatives was the suppression of sex or gender registration, on the ground that both the lack of recognition of non-binary persons, as well as the definitive nature of legal gender recognition making fluid gender impossible to legally recognise, were unconstitutional (belgian constitutional court 2019). such a strong stance taken by the belgian court provides hope that other courts may follow suit, including the strasbourg court, though a european consensus or international trend may be required before the court follows this route. dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 158 5. conclusion the european court of human rights has over recent years improved its approach to the rights of trans persons, by enabling legal gender recognition with lowered requirements, thus ceasing the imposition of stereotypically cisgender bodily characteristics on trans people, thereby arguably broadening its understanding of gender. nonetheless, while the court has recognised more rights for trans persons, it has not reached equality of treatment between trans and cisgender applicants. this paper sought to examine the distinctions that the court implicitly, and likely unconsciously, makes between trans and cisgender persons. it must be noted that the court has shown great efforts at naming and attempting to dismantle gender stereotypes in cases relating to gender equality, though these attempts were not always entirely successful. nonetheless, when it comes to trans applicants, in gender identity cases, the court has not shown such efforts at dismantling gender stereotypes, and has failed to address any gender stereotypes which were invoked before it. what is more, the court has on occasion raised gender stereotypes itself, and accepted reliance on stereotyped requirements for the recognition of trans persons’ gender. in doing so, the court has created an implicit distinction between its trans and cisgender applicants, seeing only cisgender applicants as needing to be freed from the constraints of gender stereotypes, with limiting the fight against stereotypes to a cisgender issue. additionally, the court’s lack of attention to gender stereotypes arising in gender identity cases may undermine its commitment to the elimination of gender stereotypes. by condemning certain gender stereotypes while accepting others, the court creates an inconsistency, and conveys the idea that reliance on gender stereotypes can at times be acceptable. for the court to truly succeed in dismantling gender stereotypes, it must ensure that gender stereotypes are consistently addressed, at all levels, and for all persons. where legal gender recognition procedures allow gender stereotypes to play a role, through the criteria set out or the manner in which judges apply the legislation and approach the applicants’ identities, it raises the question of whether judges or the state can truly play a decisive role in legal gender recognition, without this role being tainted by gender stereotypes. this paper argues that the only way to remove gender stereotypes from the courtroom is to deregister gender, removing external scrutiny and validation of gender identity. though the way to deregistration may be long, and the court may not be prepared or able to take such a radical approach yet, there are many steps to be taken in the meantime. by applying an anti-stereotyping approach and depathologising legal gender recognition, the court would already take meaningful strides towards equality, and show its willingness to work towards the elimination of gender stereotypes for all in the judiciary. references camminga, b. 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(2020), sexing the body: gender politics and the construction of sexuality, 2nd ed, new york: basic books. holzer, l 2018, “non-binary gender registration models in europe report on third gender marker or no gender marker options”, ilga-europe. available at: https:// www.ilga-europe.org/sites/default/files/non-binary_gender_registration_models_ in_europe_0.pdf [accessed: 28 november 2021] inter-american court of human rights (2017), advisory opinion oc-24/17, gender identity, and equality and non-discrimination of same-sex couple. available : http://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf [accessed: 27 november 2021] international commission of jurists (icj) (2017), the yogyakarta principles plus 10 – additional principles and state obligation on the application of international human rights law in relation to sexual orientation, gender expression and sex characteristics to complement the yogyakarta principles. https://rm.coe.int/16806da5d4 https://www.echr.coe.int/documents/fs_gender_identity_eng.pdf https://www.ilga-europe.org/sites/default/files/non-binary_gender_registration_models_in_europe_0.pdf https://www.ilga-europe.org/sites/default/files/non-binary_gender_registration_models_in_europe_0.pdf https://www.ilga-europe.org/sites/default/files/non-binary_gender_registration_models_in_europe_0.pdf http://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of human rights’ jurisprudence the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 160 available at: https://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_ yogyakartaweb-2.pdf [accessed: 27 november 2021] mak, g. 2012, doubting sex: inscriptions, bodies and selves in nineteenth-century hermaphrodite case histories, manchester: manchester university press. neuman wipfler, a.j. 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(2003), “resisting medicine, re/modeling gender”, berkeley women’s law journal vol. 18, no. 1, pp. 15-39. theilen, jt 2014, “depathologisation of transgenderism and international human rights law”, human rights law review, vol. 14, pp. 327-342. timmer, a. (2011), “toward an anti-stereotyping approach for the european court of human rights”, human rights law review, vol. 11, nº 4, pp. 707-738. transgender europe, trans network balkan, ilga europe, subversive front (2017), “x v the former yugoslav republic of macedonia (app no 29683/16) written comments”. available at: https://www.ilga-europe. org/sites/default/files/2017-07-28_x%20v.%20macedonia_tpi_final.pdf [accessed 29 november 2021] un general assembly (1981), international convention on the elimination of all forms of discrimination against women (cedaw), 1249 unts 13. available at: https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm [accessed: 27 november 2021] un office of the high commissioner for human rights (2013), commissioned report on ‘gender stereotyping as a human rights violation’. available at: https://www.esem.org.mk/pdf/najznachajni%20vesti/2014/3/ cusack.pdf [accessed: 28 november 2021] van den brink, m & dunne, p. (2018), trans and intersex equality rights in europe a comparative analysis’, luxembourg: publications office of the european union. https://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_yogyakartaweb-2.pdf https://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_yogyakartaweb-2.pdf http://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=21736 https://www.ilga-europe.org/sites/default/files/2017-07-28_x%20v.%20macedonia_tpi_final.pdf https://www.ilga-europe.org/sites/default/files/2017-07-28_x%20v.%20macedonia_tpi_final.pdf https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm https://www.esem.org.mk/pdf/najznachajni%20vesti/2014/3/cusack.pdf https://www.esem.org.mk/pdf/najznachajni%20vesti/2014/3/cusack.pdf caroline hansen the age of human rights journal, 18 (june 2022) pp. 143-161 issn: 2340-9592 doi: 10.17561/tahrj.v18.7022 161 case-law constitutional court of belgium (19 june 2019) case no. 99/2019 (6813) (belgium). cedaw committee (2012), rkb v turkey, communication no 28/2010, cedaw/ c/51/d/28/2010. cedaw committee (2012), svp v bulgaria, communication no 31/2011, cedaw/ c/53/d/31/2011. european court of human rights (1986), rees v uk, ap. no. 9532/81. european court of human rights (1990), cossey v uk, series a, no 184. european court of human rights (1992), b v france, ap. no. 13343/87 (1992). european court of human rights (2002), christine goodwin v uk, ap. no. 28957/95. european court of human rights (2004), ünal tekeli v turkey, ap. no. 29865/96. european court of human rights (2012), konstantin markin v russia, ap. no. 30078/06. european court of human rights (2014), hämäläinen v finland, ap. no. 37359/09. european court of human rights (2015), yy v turkey, ap. no. 14793/08. european court of human rights (2017), ap, garçon and nicot v france, ap. nos. 79885/12, 52471/13 and 52596/13. european court of human rights (2017), carvalho pinto de sousa morais v portugal, ap. no. 17484/15. european court of human rights (2017), khamtokhu and aksenchik v russia, ap. nos. 60367/08 and 961/11. european court of human rights (2019), x v the former yugoslav republic of macedonia, ap. no. 29683/16. european court of human rights (2021), jurčić v croatia, ap. no. 54711/15. european court of human rights (2021), x and y v romania, ap. nos. 2145/16 and 20607/16. received: november 30th 2021 accepted: january 19th 2022 dismantling or perpetuating gender stereotypes. the case of trans rights in the european court of abstract 1. introduction 2. the european court of human rights’ approach to gender identity 3. gender stereotypes in the european court of human rights’ case-law a) gender stereotypes in the requirements imposed on applicants b) gender stereotypes in the language of the judgments c) gender stereotypes in gender equality cases d) distinctions in the court’s approach to gender identity and gender equality cases 4. possibilities for elimination of gender stereotypes from case-law a) the court’s anti-stereotyping power b) a role for applicants in the framing of cases? c) possibilities for change on a systemic level i. depathologisation ii. self-determination iii. categorical expansion iv. deregistration 5. conclusion references migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population maría lópez belloso1 abstract: this article analyses transnational communities through the case study of the sahrawi migrant community in spain. after reviewing the most important theoretical contributions on transnational migration and determining the characteristics of these communities, this article will examine potential difficulties that derive from regulations and from the process of acquiring citizenship, which in turn affect the inclusion of this group of migrants within the host society. the article studies whether these regulations and processes may become determinants of this group’s vulnerability, and provides the main conclusions deriving from the challenges that this community faces. keywords: transnational communities, citizenship, vulnerability, sahrawi migrants. summary: i. introduction; ii. looking back at the evolution of sahrawi migration; iii. an overview of transnationalism theories, citizenship and vulnerability; iv. characteristics, challenges, implications and difficulties of the migrant sahrawi population. analysing determinants of vulnerability of migrant saharawi people in the process of acquiring citizenship; v. conclusions i. introduction sahrawis are a nomadic people. their movements, based on pastoralism or on commercial reasons, have determined their national identity. as alice wilson mentions, although some authors – most of them demographers – state that nomadism cannot be considered a type of migration, there are other authors, mainly anthropologists like phillip salzman, that defend that it is in fact a migratory movement (wilson, 2012, p. 5). regardless of the conceptualization of migration, which is not the object of this article, what is indisputable is that this situation of constant movement has largely determined both the characteristics of the sahrawi society and its national identity, being portrayed in its culture and social organization. 1 faculty of social sciences and humanities. university of deusto, bilbao (mlbelloso@deusto.es). an earlier version of this paper was presented in the migrinter colloque: penser les migrations pour repenser la société, celebrated in poitiers the 21-24 june 2016, in panel 5 (la migration depuis et vers les etats non reconnus), coordinated by olivier clochard and kamel doraï. the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 29 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population the spanish colonization of their territory forced the population to settle. this triggered a series of changes that were not only of a social nature, but also of a cultural one, and that subsequently influenced the population’s abilities to face conflict and invasion (reina delgado, 1998, p. 43; díaz hernández, et al., 2014, p. 9). when morocco and mauritania invaded the territory, the people that had been pushed to settle in the newly born urban areas had to face exile under poor humanitarian conditions. this new displacement forced the population to resettle in the camps of the refugee population (gómez martin, 2010). the stalamate both of the conflict and of political negotiations had clear humanitarian consequences (donor weariness, reduced amount of aid, deteriorating living conditions of the population) and entailed the violation of human rights, mostly in the case of the population under moroccan occupation. in addition to this, the series of social changes derived from the situation in the camps of the refugee population and in the occupied territories have caused new migratory flows (wilson, 2012, p. 9). sahrawi migratory flows can be mainly divided into: (i) migrations towards territories under morocan occupation; (ii) migrations towards liberated territories (badia); (iii) migrations towards europe, particularly spain. the populations that migrate to each of these destinations have to face different challenges and osbtacles. whereas the first ones have to deal with the violation of their human rights, those moving to the badia have to consider not only the anti-personal landmines but also the complications that come with a nomadic lifestyle, which the new generations – born in exile have forgotten. finally, those who choose to move to europe, mainly spain, find legal, social, and cultural barriers. the political vulnerability of the sahrawi cause and the sadr (sahrawi arab democratic republic) lies in these barriers. this article focuses on this increasingly large third group, for which migration seems to be the only option to overcome this situation of stagnation. however, when this part of the population arrives to spain, a series of legal obstacles are set in motion as they try to regularize their situation in the country, and these have a considerable effect on their identity. on the other hand, exile and diaspora represent even bigger threats to the preservation of the eminently oral sahrawi culture and tradition, which is hard to mantain in the host society. taking these difficulties into account, this article aims to analyse the sahrawi migrant community in spain from a transnational point of view. this last approach is quite popular nowadays among scholars of international migrations and it will be used to determine if the traditional conception of citizenship perpetuates the vulnerability of the sahrawi community in spain. attempting to provide answers to these questions, this article has been divided into three parts. by looking at the mobility patterns of this group, the first one revolves around the context of sahrawi migration in spain. the second part is centred on the main contributions of the transnationality theory, focusing on authors that have analysed transnational spaces and, more the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 30 maría lópez belloso specifically, their relation to citizenship. a synthesis of the evolution of citizenship and of the different theories regarding the validity or lack of it of this paradigm is also included in this part of the article, as well as an analysis of how inequalities caused by the most conservative portions of the citizenship act as determinants of the sahrawi group’s vulnerability. in this second part we will explain how the state regulates citizenship, as it determines the legal framework used to obtain it. the state is also in charge of determining its orientation with respect to international conflicts and obligations that derive from the international legal order. this article defends that these two roles of the state increase the vulnerability of the sahrawi community, because of the position that the state adopted with respect to the sahrawi conflict and to the legal status of sahrawi people in spain. the third part will look at the sahrawi community in spain as a case study of transnational communities. although some authors (bowen & wiersema, 1999; rouse & daellenbach, 1999; campbell & stanley, 2015) have questioned the qualitative methodology of case studies, we agree with authors such as yin, who consider these as proper tools for the analysis of concrete phenomena in specific contexts (yin, 2009). along these lines, by examining the sahrawi community, we can study transnational spaces, and particularly transnational communities, from different perspectives. in turn, this would help identify a series of behavioural patterns and come up with an explanation of the phenomenon, giving internal validity to this work. nevertheless, this work is a preliminary analysis of this matter based on the conviction that the study of the sahrawi community in spain has the potential of serving as an example of the transnational space phenomenon, and more specifically of its relation with citizenship. nonetheless, this is still a work in progress, which is why data has not been collected yet. literature on transnational migration and communities, as well as the work of authors that have addressed the topic of sahrawi migration, have been carefully reviewed. following the classic structure of case study and after giving details about the theoretical proposals and describing the unit of analysis, in the third part of this article data gathered from the bibliographic and documentary sources will be applied to the theoretical proposals. finally, we will draw the most important conclusions of the analysis in relation to the questions that guide this work and provide details about the results obtained, as well as the topics that should be further investigated and that will be framed as the main challenges faced by this community. ii. looking back at the evolution of sahrawi migration from the very beginning, the history of the sahrawi community has been tied to migrations coming from the arabian peninsula to this territory. the former intermixed with the autochthonous berber population throughout the 11th and 13th centuries2, 2 the first arrival of people coming from the arabian peninsula was during the 11th century through massive yemeni incursions in north africa, until they finally settled in the maghreb during the 14th and 15th centuries. in the 13th century, a new wave of arabian migration in northwest africa mixed with the the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 31 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population giving place to the sahrawi people. these were characterized for being a nomadic society linked to pastoralism and commerce3 until the 20th century. during the midtwentieth century, a progressive sedentariness was promoted in the context of the spanish colonization, but until then most of the sahrawi people were still nomads. when morocco and mauritania invaded the area in 1975, they were forced to flee, first within the territory, and later to argelia, when the civil population was bombarded in um draiga, guelta and tifarti, as carlos martín beristaín (martín beristain, 2015) describes. the sahrawi society then started a war of national liberation and the establishment of a state that was ruled from their exile in argelia, which is where most of the population had taken refuge. during the conflict and the first years, the frente polisario (polisario front, hereon) promoted the movement abroad of sahrawian youth from the camps to encourage their education. this was supported by agreements made with countries like cuba, venezuela, syria or libya. when this young population went back to the refugee camps after 10 to 15 years apart from their families, they started working for the community (fiddian-qasmiyeh, 2011, p. 437). following the stalemate of the conflict after the ceasefire in 1991 and the subsequent failed attempts to organize a referendum, as described by juan soroeta (soroeta liceras, 2001), an atmosphere of discouragement and weariness began to reign in the refugee camps and these feelings were then translated into important social changes that took place in the camps4 and from which a new immigration wave originated. as the status quo of the conflict extended, this wave of migration focused mainly on three destinations. therefore, as alice wilson summarizes, while a minority of the population chose to go back to its territory despite the persistence of the moroccan occupation (wilson, 2012, p. 9), another part decided to recover their traditional lifestyle and move to the liberated territories (badia) and go back to nomadic herding or establish commercial activities with mauritania, as relations with this country had been restored since the peace treaty was signed in 19795. a third group remains of the almohad empire. a tribal conflict between these dynasties resulted in the population moving to the south, towards the western sahara, where they mingled with the sanahas of the western sahara in the 15th century, giving place to the current arab-berber population (villar, 1982, p. 25) 3 spanish presence in the territory promoted this traditionally nomad population’s settlement, which took place in urban areas. a homogenous demographic group then emerged from a traditionally hierarchic society that was arranged by a guild system based on social and ethnic groups and made up of family or patrilineal groups structured around the haima and tribes. ibidem, p. 27; (fiddian-qasmiyeh, 2011 p. 435). 4 many authors have reflected on the social changes taking place at the refugee camps. along these lines, an article that is worth mentioning – especially based on its thoroughness and impact – is that of sophie caratini (caratini, 2006). juan carlos gimeno also summarizes these changes from a more cultural perspective (gimeno martin, 2010) 5 mauritania took part in the so-called “madrid accords” trying to stop moroccan territorial claims over mauritanian territories, which resulted in mauritania’s implication in the conflict after spain left the territory. knowing their opponents’ characteristics, the polisario front focused on the first stage of the national liberation war in mauritania. only two years after the proclamation of the sadr, the polisario front managed to put mauritania in a very delicate situation, specially following the 1976 nouakchott attack, in which the secretary general of the polisario front, el ouali, died. the country’s economic the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 32 maría lópez belloso decided to go north, mainly to spain. at the beginning, this group consisted mainly of university graduates that were tired of seeing that the effort they had made to study was not relevant in the refugee camps (gómez martin, 2010; fiddian-qasmiyeh, 2011, p. 441). according to alice wilson, in the first decade of the 2000s, less qualified workers –who had become part of the construction boom in the refugee camps– joined this group, as well as activists from the occupied territories who were fleeing from repression (wilson, 2012, p. 11). as we mentioned before, this article focuses on this third group of sahrawi migrants, who are the ones that chose to settle in europe, and particularly in spain. we decided that it was appropriate to narrow down our study to this population group, not only because of its specific characteristics, but also because of how it has been treated by the spanish state, the administering power of the last african colony. this analysis is not so simple, considering that in the first place it is quite difficult to quantify this group among the different groups of migrants that currently live in spain. authors such as carmen gómez have already highlighted this issue, which she tried to solve by comparing the estimates with those of the sahrawi community office in spain6 and of the polisario front delegation in madrid, since it is still in charge of controlling access to necessary documents to leave the camps of the refugee population. this author, through her fieldwork, came up with the total sum of 10,000 people belonging to this community (gómez martin, 2010, p. 33), while other media sources mention approximately 3,000people7. this number differs from official statistics that identify saharawi people among different groups. thus, for instance, according to the number of asylum requests8, in 2014 only, 31 saharawi (27 men and 4 women) requested international protection in spain. one of those requests was accepted and 17 (all men) were dismissed (interior, 2014, p. 64). the rest of the official numbers on migration do not include saharawi people in an independent category. instead, they are listed among those coming from crisis led to a coup d'état on 10 july 1978, during which a military junta -comité militaire de redressement national (cmrn)took full control and arrested ould dadah (hodges, 1983, p. 265). a subsequent coup d’état promoted by another military group, the comité militaire de salut national (cmsn), resulted in the signing of the peace treaty with the polisario front in algiers. in this agreement, known as the “algiers agreement”, mauritania established that it waived all its claims over western sahara territories, that it retreated from the war and that all the territories under mauritanian control would be transferred to the polisario front. however, right before the sahrawi troops could take control of that territory, moroccan military forces in mauritania also occupied the southern part of the western sahara. 6 the sahrawi community office in spain (http://delsah.polisario.es/oficina-de-la-comunidad-saharauien-espana/) is in charge of supporting, helping and mobilising the sahwari community in spain. 7 la vanguardia (2016), “spain will be accepting sahwari documents once again to process citizenship requests” la vanguardia newspaper 01/02/2016 available on: http://www.lavanguardia.com/politica/20160201/301818809891/espana-admite-de-nuevo-losdocumentos-saharauis-para-tramitar-la-nacionalidad.html fecha de acceso 2 de mayo de 2016. 8 asylum-related figures in spain are published each year by the spanish ministry of interior: http://www.interior.gob.es/web/archivos-y-documentacion/documentacion-ypublicaciones/publicaciones-descargables/extranjeria-y-asilo/asilo-en-cifras the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 33 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population argelia, morocco, mauritania, and stateless persons. the following graph has been taken from the official statistics of the national institute on immigration flows organized by year (2014), sex, age group and nationality, based on the aforementioned places of provenance9: as we can see, the number of moroccan immigrants is much higher than the other three that have been included in the graph, given that this is one of the major groups of immigrant population in spain. however, as far as this article is concerned, we believe that saharawi immigrants have been mostly included in the argeline population. the reason behind this is that although since the beginning of the century the number of saharawi people that come from the occupied territories has increased, it is still presumed to be lower than the number of saharawi people coming from refugee camps. another part of this population would be included under “stateless” people, making their situation even more complex. now that we have gone through the evolution of sahrawi migration, we will present the theoretical proposals that will be linked to the object of analysis in the last section so that its characteristics may be identified, and above all the repercussions that the citizenship request process have on the vulnerability of the sahrawi community. iii. an overview of transnationalism theories, citizenship and vulnerability. the issue of migratory flows and of how challenging these can be to european society, which is the final destination of many of these, is at the top of the current international agenda. as a matter of fact, migration has been given priority in the political agenda since the beginning of the century and it seems that this will remain like that for the time being, as migration continues to increase. 9 data gathered from the spanish ministry of interior statistics: http://www.ine.es/jaxi/datos.htm?path=/t20/p277/prov/e01/l0/&file=01003.px the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 34 maría lópez belloso population movements in the 21st century differ to a large extent from previous migratory waves. some of the factors that have caused these current changes, both with respect to movements and migrants, are technological advances and communication systems, which have greatly contributed to the emergence of a phenomenon that is being addressed by the academic community: transnational migration. a great number of works that have given place to different schools of thought have been developed since the pioneers of this new concept, nina glick schiller, cristina blanc-szanton and linda bach, first defined transnationalism (glick schiller, et al., 1992). authors such as peggy levitt and nina glick schiller herself have identified four “traditions” that address this new approach: the one coming from sociology and anthropology in the usa; the one developed in the united kingdom, specially by the oxford transnational community programme; literature produced by authors focusing on transnational families and the links they create; and the one focused on space and the analysis of social structure (peggy levitt & schiller, 2006, p. 194). on the other hand, a series of authors have classified the different schools of thought according to disciplines that have made contributions. therefore, peter kivisto (kivisto, 2001) makes a distinction between contributions made from cultural anthropology by authors such as nina glick schiller, cristina blanc-szanton and linda bach; portes’ sociological contributions (portes, 2001); or the political science work of authors such as thomas faist (faist, 2000). this branching out has also come along with new terms and concepts linked to the issue of transnational migration and some authors such as álvaro morcillo consider these to be obstacles to the emerging paradigm (morcillo espina, 2011, p. 764). as a matter of fact, we can see that authors like nina glick schiller and cristina blanc refer to a “transnational social field” (levitt & glick schiller, 2006), wheras thomas faist talks about “transnational spaces” and steven vertovec of “transnational communities” (vertovec, 1999). however, and despite criticism in relation to the many works that have addressed these issue, there is consensus when it comes to understanding transnational migrations as: “the series of processes by which certain migrants create and preserve recurrent relations and social activities that establish links between home and host societies” (velasco, 2009) given that this article does not intend to carry out a comprehensive analysis of all the work related to this new field, our point of reference will be the work of thomas faist on transnational social spaces and, more specifically, on transnational communities. this last concept is highly relevant for our purpose of linking the analysis of these communities to the role of the state as the one in charge of establishing conditions of access to citizenship. this author considers that transnational spaces are characterized by the “existence of formal and informal inter-sectorial links between different physical and temporary spaces” (faist, 2000, p. 190). of the three types of transnational spaces that faist defines in his article “transnationalization in the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 35 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population international migration: implications for the study of citizenship and culture” (transnational family groups, transnational circuits and transnational communities), we will focus on transnational communities. according to this author, the main characteristics of these are collective representations based on symbolic links, such as religion, nationality and ethnicity. he also states that the primary resource used in these links is solidarity among the members of the community, and that diasporas are clear examples of this. however, levitt and glick schiller point out that it is necessary to establish a difference between the existence of these links and “the conscious integration in those communities” (levitt & glick schiller, 2006, p. 196). diasporas, common to these communities, are characterised by a threefold relation among a dispersed group of people, the states in which they reside and the vision or memory of a lost or imagined homeland (safran, 1991). for thomas faist, transnational communities built around political or religious projects that last for more than one generation, like diasporas, are driven by: i) the existence of strong links that migrants and refugees have for a long period of time with the state of origin and the host country; ii) the assimilation of these links not only through migratory flows but also by other means like commerce or communications; iii) legal and political regulations that may allow to varying degrees for the movement of people, and tolerate or repress political and religious activities of migrants and refugees. the latter issue will become especially relevant in our case study, as we will see further on. the emphasis that these authors put on diverse links among different physical and temporary spaces is clearly related to the political importance given to the adaptation of migrants to their countries of residence. according to levitt and glick schiller, understanding migration from this transnational perspective implies analysing integration and the sense of belonging to these states (levitt & glick schiller, 2006, p. 214). as velasco pointed out, “the non-transitional character of transnational links challenges basic assumptions of assimilationist concepts”, particularly the links with countries of origin, which become weaker as the stay in the states of residence is extended (velasco, 2009, p. 35). on the contrary, people that integrate into transnational spaces and communities seem to have multiple points of reference, which translate into a duplicate or multiple senses of belonging, which in turn give place to the establishment of hybrid identities (velasco, 2009). all of these matters hardly fit into the traditional perspective of citizenship defended by marshall (marshall, 1964), and for this reason, new approaches to this issue have emerged. for instance, post-national citizenship, a concept brought about by yasemin soysal (soysal, 1994) states that nowadays there are international institutions and legal instruments that go beyond the space of the nation-state. according to the defenders of multicultural citizenship like will kymlika, it is necessary to ensure the cultural background of people by guarantying the rights of political and religious minorities (kymlicka, 2003). despite the different perspectives, there is consensus about making a distinction among four dimensions of citizenship: legal citizenship, citizenship entailing a series of rights, political citizenship and citizenship as identity the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 36 maría lópez belloso and belonging (bosniak, 2000). these aspects are related to the two axes of access to citizenship which were defined by faist according to the links between the state and citizenship (faist, 2000, p. 203): the vertical axis, which includes the legal dimension and the human rights dimension, and the horizontal axis, which embraces the dimensions of political citizenship, identity and belonging. all of these dimensions come together within the boundaries of migrants’ states of residence. the limitations imposed by the vertical axis on the horizontal one largely influences the migrants’ access to these dimensions of citizenship, and therefore determines the vulnerability of these groups of the population. although we cannot ignore that vulnerability is a circumstance that is tied to migration in general10, vulnerability understood as the “exposure to contingencies and stress, and the difficulty in coping with them”11, is somehow related to the case in which a person or group is exposed to a difficult situation, or a situation that entails some type of risk and that the person or group finds it hard to deal with. this exposure is twofold – internal and external – as it is related both to the risky situation that the person or group is exposed to, and to the available resources to cope with it. based on this definition, vulnerability is a phenomenon that has a “relative dimension”, given that it varies according to each individual and his/her circumstances, as well as his/her specific situation at the time (pérez de armiño, 2000, p. 584). among some of the personal determinants of vulnerability, these author highlights ethnicity or religion, level of education or legal status (pérez de armiño, 2000). as far as we are concerned, the legal status and regulated access to citizenship will clearly determine the sahrawi community, as we will see in the next section. iv. characteristics, challenges, implications and difficulties of the migrant sahrawi population. analysing determinants of vulnerability of migrant saharawi people in the process of acquiring citizenship. as we have seen, the presence of sahrawi migrants in the spanish society is quite a recent phenomenon. as a matter of fact, authors like carmen gómez define sahrawi migration both as being a “late effect” of the conflict (gómez martin, 2010, p. 34) and as a complex phenomenon (gómez martín, 2013, p. 230). despite the severity of the first years of the conflict, until the end of the 90s the number of sahrawi people in spain did not increase. until then, it included mostly local representations of the polisario front, ill people that were temporarily hosted in shelter homes, or families that were part of the program “vacaciones en paz” (holidays in peace). therefore, since the 10 along these lines there are several reference publications that address the existing relation between the migration phenomena and vulnerability, with elements such as environment, poverty or identity. see, for instance: afifi, tamer; jäger, jill (ed.). (2010) environment, forced migration and social vulnerability, springer, heidelberg; newman, edward, et al. (2003) refugees and forced displacement. international security, human vulnerability and the state. united nations university press; chambers, iain (2008). migrancy, culture, identity. routledge, london and new york; turner, brian. s. (2006) vulnerability and human rights, pennsylvania state university press-university park, pennsylvania. 11 robert chambers’ definition taken by karlos pérez de armiño (2000, p. 584) the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 37 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population beginning of the conflict and until the end of the 90s, the majority of migrants coming from the refugee camps were young people involved in educational agreements. this successfully accomplished the objective of the polisario front of reducing the illiteracy rate inherited from the spanish colonization12 and it attracted the interest of important specialists such as elena fiddian-qasmiyeh or randa farah, who addressed the implications of this program both for the youth that took part in it, as well as for the sahwarawi population in general, from the perspective of transnational migration13. following the social changes that took place in the camps and that were caused by the failed referendum of 1998 (dubois migoya, et al., 2011, p. 505; dubois, et al., 2011, p. 148) that, according to elena fiddian and carmen gómez, first affected this generation of young people educated abroad (fiddian-qasmiyeh, 2011, p. 441; gómez martin, 2010, p. 31), the population started leaving the camps of tinduf, and this was perceived in a very negative way, according to carmen gómez herself and alice wilson (gómez martin, 2010, p. 36) (wilson, 2012, p. 11). gómez states that choosing to emigrate from the camps was perceived as an abandonment of the national cause provoked by worsening personal situations and and, considering that the polisario front controls access to necessary documents to emigrate, the author relates that the departure from camps was done under the so-called “triple promise”: immediate return if the circumstances demand so14; the union of the sahrawi community abroad; and the dissemination of the saharawi cause in the host societies (gómez martin, 2010). this “triple promise” contributes to the existence of the threefold relation that william safran described among the group of people living in different parts of the spanish territory, sahwari population camps and the defence of the national cause (safran, 1991). 12 regarding the level of education, in her monograph work hijos de la nube, claudia barona provides specific available data on education at the end of the spanish colonization: “at the end of the colonial period, in 1974, the statistical yearbook of spain includes 204 teachers (144 europeans and 60 natives or “islamic teachers”), and 7,608 students (2.321 europeans, 3.184 natives and 2,103 adults), in addition to 621 secondary school students (398 europeans, out of which 255 were boys and 143 girls; and 223 natives, out of which 208 were boys and 15 girls). (barona, 2004). other reference works regarding education in the sahara include: velloso a. 2005, “education in the western sahara: the permanent exile”, cscaweb, of 15 april 2005, which is available on the following webpage: http://www.nodo50.org/csca/agenda05/misc/sahara-velloso_15-04-05.html last visited on 20 may 2016. 13 elena fiddian qasmiyeh is one of the most important academicians studying sahrawi migration. some of her main publications include: fiddian-qasmiyeh, elena. (2015) south-south educational migration, humanitarianism and development: views from cuba, north africa and the middle east, oxford: routledge, part of the ‘routledge studies in development, mobilities and migration’ book series; january 2015; fiddian-qasmiyeh, elena. (2014) the ideal refugees: gender, islam and the sahrawi politics of survival, syracuse ny: syracuse university press, part of the ‘gender, culture and politics of the middle east’ book series; january 2014; female muslim refugees in spain,’ gender, place and culture, 21(2): 174-194; fiddian-qasmiyeh, elena. (2013) ‘the inter-generational politics of “travelling memories”: sahrawi refugee youth remembering homeland and home-camp,’ journal of intercultural studies, 34(6): 631-649. randa farah has also addressed the issue of educational politics of the polisario front in international agreements in her article (farah, 2010). 14 the first element of this “triple promise” was proven in 2001, when an important diplomatic incident took place as the organization of the paris-dakar rally tried to go through the liberated territories. this was a very tense moment as within 24 hours a large number of sahrawi people, including those in the diaspora, were incorporated in military ranks. the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 38 maría lópez belloso this definition of the national cause implies the existence of a distinctive feature in the sahrawi community (szente-varga, 2012, p. 122; alvarez gila, et al., 2011, p. 159) considering that, as randa farah states, self-determination becomes an identifying factor of their identity (farah, 2010, p. 65). moreover, this link and the conditions that derive from the triple promise constitute the main source of relations and social activities in and with the host society, while circular mobility patterns contribute to preserving strong links with those who have remained in the refugee camps and the occupied territories. this connection with national identity is the main reason that keeps the saharawi population from settling in a specific location, as the places of residency simultaneously become the place of arrival and the destination. for this reason, this author describes the migrant sahrawi population as transmigrant (gómez martin, 2010, p. 38). the network of sahrawi migrant associations, which were formed since the first decade of the 2000s, has contributed to the reinforcement of circular mobility patterns (gómez martin, 2010, p. 38; wilson, 2012, p. 10; chatty, et al., 2010). through them, information regarding the evolution of conditions for the population in the different autonomous communities and municipalities became available, and this was a clear example of the underlying solidarity in the relation between the sahrawi community and spain, as well as with the people that have remained in the refugee camps and the occupied territories. besides providing information about facilities and obstacles to reside in the spanish state, the sahrawi community residing in this european country has also established important financially solidary relations with the people living in the refugee camps and the occupied territories. as a matter of fact, these economic relations, which are tied to the exodus of the first sahrawi migrants and the existing links among spanish families and sahrawi people have translated into important social changes in the refugee camps (fiddian qasmiyeh, 2011; belloso & mendia azkue, 2009). as we mentioned earlier, most of the sahrawi population that decides to emigrate to spain comes from the refugee camps. given that spain does not recognise the sadr as a state, sahrawi migrants in this country are forced to use argelian or mauritanian documents, or request the spanish citizenship in order to legalize their situation in spain. on the other hand, the migrant group coming from the occupied territories is forced to use moroccan documents to leave and move to spain, notwithstanding all the implications that this has in relation to the sahrawi identity and the dynamics of an ongoing conflict. as it was mentioned before, this makes it hard to quantify the exact number of sahrawi residents in spain, define their sociodemographic characteristics and sex-disaggregation, in addition to making this group invisible among the whole migrant population in spain. for what regards gender, the role that saharawi women have had and still have in the struggle for national liberation is well known, as well as their involvement in the political and social infrastructure of the refugee camps and of the occupied territories. however, to this day, there are barely any academics addressing the role of sahrawi women in the migrant community. one of the few available, carried out by elena garcía vega, makes statements that in our opinion are hard to challenge due to inherent issues of the sahrawi migrant group. first of all, based on “quantitative reasons”, she mentions that the presence of sahrawi the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 39 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population women is less representative than the male one (garcía vega, et al., 2009). we find it difficult to confirm this statement because, as we will see further on, one of the difficulties linked to the vulnerability that characterizes the sahrawi migrant population is precisely the lack of official data to quantify the exact number of sahrawi residents in spain, and least of all to determine sex-disaggregation. moreover, the sample that she selected for her study includes a young migrant female population, mostly single and without family burdens. although we cannot challenge this sample as we have not carried out a thorough study of this issue and there are no other available studies we can compare this one to, the average age of this sample seems a bit low to us. this is specially true if we take into consideration that, as carmen gómez mentions, the main group of sahrawi migrants is encompassed by the “second generation of the polisario”, that would currently be between 45-50 years old (gómez martin, 2010, p. 35). furthermore, this sample does not seem to include groups whose presence has increased over the last years: the wives and families of the polisario front in spain or of policario front representatives that use their contacts to bring their families to spain as the conflict continues. in any case, it is hard – and necessary to support this analysis to disaggregate data by sex given the lack of official numbers of the sahrawi migrant group. the most important consequence of having to use documents from other states is that, for most of the sahrawi migrant population, regularizing their status or migrating to spain implies diluting their identity as sahrawis. this, in turn, clearly challenges the group representation of this community, stated by faist (faist, 2000). this circumstance, together with the extension of the conflict itself, contributes to this population’s settlement in spain but, on the other hand, limits the capacity of people residing in the refugee camps to face the challenge of migrating. even though we have stated a generation of highly qualified saharawi people exists, three generations have been born in exile and are the target of the so-called “culture of the aid” (lópez belloso, 2011, p. 65). as we already mentioned, according to the definition provided by karlos pérez de armiño, the concept of vulnerability is connected to the exposure of a person or group to a difficult situation or a situation that entails some type of risk that the person or group finds hard to deal with. among some of the personal determinants of vulnerability these author highlights ethnicity or religion, level of education or legal status (pérez de armiño, 2000). in this case, the legal status of the sahrawi community in spain seems to be a fundamental determinant of the group’s vulnerability (pérez de armiño, 2000). this is why it is essential to analyse the legal procedures connected to the regularization process of saharawi people in spain. in order to understand this, we would have to recall the spanish colonial presence in the territory, supporting what the aforementioned author refers to as vulnerability’s “dynamic dimension in time”, meaning that the former is the consequence of historical developments such as colonialism (pérez de armiño, 2000, p.590). one of the strategies that spain used to avoid, or at least delay, decolonization – which is still an unfinished process– of the western sahara territory, was to the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 40 maría lópez belloso provincialize it. this implied that during a certain period of time, the spanish and saharawi populations were “equal”, although the effects of this “equality” have been largely debated from a legal and doctrinal basis15. the solution, as javier pérez milla states, was to link territory to nationality. nevertheless, and according to this same author, a series of procedural obstacles to demonstrate national status derived from this territorial connection, and the sahrawi population ended up claiming statelessness, requesting from the spanish judicial authorities to “use legal instruments to remedy an inherently political conflict” (pérez milla, 2011, p. 445). however, this same incongruent political position of spain regarding the sahrawi conflict is evident in the legal remedies provided for the legal status of this community in spain (viñas farre, 2009, p. 38). these remedies, as we mentioned earlier, fluctuate between the recognition of the spanish nationality16, of statelessness17, and even the insinuation of the moroccan citizenship of sahrawi residents in occupied territories18. this means that saharawi people that choose not to initiate these type of legal procedures have the following choices: to request residency and work permits as part of the aforementioned groups (argelian, moroccan, mauritanian), accepting the slow and bureaucratic nature of granting and renovation processes; or to acquire the spanish citizenship based on residency as provided by article 22 of the spanish civil code (ortega giménez, et al., 2016). this article became a new determinant of the sahrawi population’s vulnerability, given that this ‘fast track’ to acquire citizenship within two years does not include the sahrawi group, whereas other groups with similar characteristics, such as certain latin american countries, the equatorial guinea or the sephardic community are taken into account. discrimination towards the sahrawi community increased with the enforcement of law 12/2015, which established that the sephardic community would not be required to renounce their original nationality19. following the strong political pressure exerted by the opposition, on 5 april 2016 a motion to modify the aforementioned article 22 was approved in the parliamentary commission of justice. the modification implied the inclusion of the sahrawi community in this article, stating that they would no longer have to renounce to their original nationality20. in addition to this legal discrimination, for almost two years, the sahrawi community also suffered serious procedural discrimination, given that during that period of time, the directorate general for registers and notaries (dgrn) dismissed all documentation provided by the sadr for procurement actions to access citizenship based on residency. it was only after several appeals of the professional association of sahrawi lawyers in spain 15 the legal debate has been translated mainly in supreme court judgements regarding different requests of spanish citizenship from sahrawi citizens that have been appealed following their systematic dismissal by the national high court. a compilation of these judgements is available at (pérez milla, 2011; lópez baroni, 2014; soroeta liceras, 2001; soroeta liceras, 1999) 16 supreme court judgement, civil division of 28 october 1998. 1026/1998 (rj/1998/8257); and supreme court judgement, administrative chamber, section 6º, of 7 november 1999(rj/2000/849) 17 supreme court judgement of 20 november 2007 (rj 2008, 6615) 18 supreme court judgement, administrative chamber, fifth section, of 18 july 2008 (rj 2008/6875) 19 act 12/2015, of 24 june, in granting spanish citizenship to sephardims originally from spain. 20motion on the amendment of article 22.1 of the civil code. 161/000265. published in the official gazette of the general courts (spanish parliament). congress of deputies, p. 12 available at: http://www.congreso.es/public_oficiales/l11/cong/bocg/d/bocg-11-d-46.pdf#page=12 last accessed on: 13 may 2016. the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 41 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population (aprase) that the dgrn rectified its position and acknowledged the validity of the documents provided by the sadr21. in addition to facing clear legal determinants, the sahrawi migrant community in spain also encounters other factors that determine its vulnerability and that are mostly tied to their trans-migrant nature. nina glick schiller states that “transmigrants draw upon and create fluid and multiple identities grounded both in their society of origin and in the host societies” which therefore link them to more than one society (glick schiller, et al., 1995, p. 48; glick schiller, et al., 1992, p.1). in our opinion, this circumstance becomes clear in the sahrawi migrant population that, in addition to preserving their sahrawi identity, is also very connected to the spanish society not only because of historical reasons, but also of cultural aspects. sidi mohamed omar states that this multiple link becomes more complex (omar, 2012, p. 151) in the case of the sahrawis that moved to third countries, and particularly the so-called cubarauis. because of the links of the sahrawi community with their national identity, as well as with the spanish –or even the caribbean– society, as carmen gómez martín states, there is some reluctance to qualify them as migrants or immigrants, and expressions such as “third period of exile tiempo” are preferred instead (gómez martín, 2013, pp. 233). this term is connected to migrant communities such as diasporas and the existence of “hybrid identities” as stated by velasco (velasco, 2009). this terminology is consistent with an issue that we already pointed out when we described the characteristics of the sahrawi migrant population that sidi mohamed omar refers to as the “prevailing political nature of the sahrawi diaspora” (omar, 2012, p. 150). the commitment to the sahrawi cause highlighted by this author has led the activities and efforts of the sahrawi community in spain to focus on the dissemination of the political dimension of the conflict, neglecting an aspect that was especially present during the movement of sahrawi youth to the caribbean: the protection of their cultural identity (farah, 2010; fiddian-qasmiyeh, 2013, p. 883). the consequences of neglecting the protection of culture are many, considering that the traditional sahrawi culture is basically oral and that its language, the hassania, is an arab dialect that has not been greatly developed grammatically. as larosi haidar points out, the sahrawi oral tradition encompasses the as-sa´r or poetry, the tale in its different modalities, story telling (al-matal), and the proverb. poetry is the only of these that has been transcribed in very few occasions (haidar, 2006, p. 361). as a matter of fact, authors such as bahia awah, consider that sahrawi poetry is pre-eminently oral, despite the efforts made to preserve it in written archives (awah, 2010, p. 208). this differs from the efforts made by the aforementioned “second generation” that went to study abroad accompanied by sahrawi instructors who had the role of making sure that not only their culture and language were conveyed properly, but also a “specific narrative” of the sahrawi cause (fiddian-qasmiyeh, 2013, p. 882). 21 “birth certificates and criminal records issued by the sadr, that may have evidentiary value to confirm the identity and good citizenship of the person requesting the spanish citizenship”. excerpt from the communiqué issued by aprase on 1 february 2016. available at: http://www.splsahara.org/wpcontent/uploads/2016/02/comunicado.pdf last accessed on: 13 may 2016. the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 42 maría lópez belloso according to carmen gómez, beyond language and oral tradition, sahrawi literature shows three main features: “the interpretation of writing, and especially of poetry, as a weapon to fight oblivion; the vindication and use of spanish as a bridge language and identity symbol against other french-speaking people of the maghreb; themes related to the sahrawi land (the desert), geography, tradition and sahrawi culture” (gómez martín, 2013, p. 236). this author considers that these three features, which portray the multiple links that exist within this group, can be seen in the so-called “generación de la amistad” (the friendship generation). the latter was formed in madrid in july 2005 and consists of a group of sahrawi poets and writers that belong to the aforementioned “second generation”. in these writers, who have taken on the role of defending memory and culture through literature, the multiple aspect of the sahrawi identity is traceable, especially in their recollection of childhood memories in the refugee camps, caribbean nostalgia or their own migratory experiences in spain. according to the author, these mirror a “complex migratory experience” that, at the same time, is a clear example of transnational migration (gómez martín, 2013, p. 234). in spite of these authors’ effort to disseminate and protect sahrawi culture, the extension of the conflict and the settlement of this community in spain are having negative consequences on the preservation of its culture. traditional knowledge is being lost as the elder generations pass away and new generations lose their roots, given that some of them have been born and raised in spain and keep only residual and sporadic contact with the sahrawi culture, only occasionally visiting the refugee camps or the occupied territories. in our opinion, it would be interesting to carry out an in-depth analysis of these two matters by filling out forms and conducting interviews with members of the sahrawi community. this would allow us to thoroughly document the relations and links that are established between the different spaces, as well as the perception that the community has with respect to the difficulties of acquiring citizenship, the defence of collective identity, relations based on solidarity and the situation of the sahrawi culture. these determinants of the vulnerability of the sahrawi community in spain represent, from our point of view, a fundamental issue that is also the main weakness of this group: the political fragility of the sahrawi population and the sadr government in an international context ruled by a discourse about safety and the defence from terrorism, confronted with the last vestige of colonialism in africa, that is consistently advocating for the defence of its rights in a pacific way, unlike the current international trend. in addition to this, the difficulties that the sahrawi community faces while trying to integrate in the spanish territory are a direct consequence of this country’s political stance, which is still an administering power of the territory in the context of an ongoing conflict. unlike other countries, like portugal –or even looking at the treatment that the spanish state has given to other groups such as the guinean– spain takes no historical responsibility to solve the conflict, nor does it offer any options to the sahrawi the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 43 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population community living in the country, even though this community is affected by the regulation of its legal status, which is the result of a failed decolonization process. v. conclusions based on the contents of this article, we can conclude that the sahrawi community in spain keeps social, political and economical links with other spaces such as the refugee camps, the occupied territories or the places in which the sahrawi youth has pursued a higher education. these relations are marked by the so-called “triple promise”, which mostly translates into the solidarity that exists between the members of the community in their defence of a cause, but also in relation to the other members of the community and the sahrawi state. this community faces a series of challenges while trying to integrate into the spanish society. despite the fact that the migrant sahrawi population has its own characteristics, the first challenge stems from the fact that it is difficult to obtain official data and statistics regarding this group. we have seen that the sahrawi population is included among different statistic information under “labels” or categories that make it difficult to identify someone as sahrawi, and that entails its inclusion the argelian, stateless, spanish or even moroccan groups. this issue is strictly related to another main challenge faced by the sahrawi population when arriving in spain: getting around the legal barriers set by the spanish legislation in order to regularize their situation, barriers that not only neglect their social, historical and cultural ties with spain, but that discriminate them with respect to other groups under similar circumstances. when their legal status is finally regularized, the next challenge they face is maintaining an equilibrium between their legal, employment and family stability with definitively settling in specific spaces or places that may collide with the defence of the national cause that, as we have previously seen, is one of the main traits of the migrant sahrawi population: the power of national identity and its predominant politicisation. the power of national identity prevails over traditional cultural identity, which dilutes in different transnational spaces even when these spaces are a circular combination of the saharan territory (occupied territories or liberated territories), the refugee camps and spain; or a series of temporary exiles in camps, in the caribbean (mostly in cuba) or other states and spain. perhaps the biggest challenge that this migrant community faces is the temporary challenge from a double perspective. on one hand, the ongoing conflict has greatly affected the transmission of the traditional culture – which is mostly oral – as the elderly people, who are the carriers of tradition, pass away. also, new generations raised in spain assimilate this culture in a more distant way. on the other hand, with the passing of time the political speech on the sahrawi cause has weakened, especially in an the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 44 maría lópez belloso 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(2009). case study research: design and methods. 4th edition ed. thousand oaks, california: sage pub. the age of human rights journal, 7 (december 2016) pp. 29-49 issn: 2340-9592 doi: 10.17561/tahrj.n7.8 49 migration and vulnerability: challenges, implications and difficulties faced by the sahrawi migrant population ii. looking back at the evolution of sahrawi migration iii. an overview of transnationalism theories, citizenship and vulnerability. iv. characteristics, challenges, implications and difficulties of the migrant sahrawi population. analysing determinants of vulnerability of migrant saharawi people in the process of acquiring citizenship. justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 137 justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? obiajulu nnamuchi1 joy ezeilo2 miriam anozie3 nicholas agbo4 maria ilodigwe5 a simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanize people. it is to create an appearance of equality and justice, while by implication socioeconomic inequality is entrenched. we do not want freedom without bread, nor do we want bread without freedom. we must provide for all the fundamental rights and freedoms associated with a democratic society. – nelson mandela, 1991 abstract: a recalcitrantly enduring polemic in the annals of human rights and constitutional law jurisprudence in nigeria centers on whether socioeconomic rights are justiciable in the country. this burgeoning controversy is rooted not only in the balkanization of the two principal genres of human rights and their compartmentalization into distinct parts of the constitution, namely chapters ii and iv respectively, but also in explicitly baptizing one as ‘fundamental rights’ whilst denying similar appellation to the other. adding to this obfuscation is deafening silence on the part of the supreme court of nigeria, thereby fueling the belief, in many circles, that domestic legal frameworks do not bestow recognition upon socioeconomic rights. but does this understanding represent the correct position of the law? does international law offer any guidance? responding to these questions is the task of this paper. its central contention is that current reality, made more evident by international human rights law, leans toward justiciability of socioeconomic rights. keywords: justiciability, constitution, international law, human rights, socioeconomic rights. summary: 1. introduction and preliminary background: the original position. 2. socioeconomic rights in nigeria: cosmopolitan (progressive) interpretation. 3. african regional human rights system and the justiciability question. 4. does international law deny justiciability status to socioeconomic rights?. 5. conclusion: fidelity to the indivisibility paradigm of human rights. 1 ll.b (awka), ll.m (lund university), ll.m (notre dame), ll.m (toronto), m.a (louisville), sj.d. (loyola, chicago), associate professor and head, department of public law, faculty of law, university of nigeria. email: obi.nnamuchi@yahoo.com 2 llb (nig), llm (london) phd (nig). professor of law and dean, faculty of law, university of nigeria. former un special rapporteur on human trafficking. email: ezeilojoy@yahoo.co.uk 3 ll.b, ll.m. (zaria), phd (nigeria), associate professor of law, head, department of jurisprudence and legal theory, faculty of law, university of nigeria. email: miriam.anozie@unn.edu.ng 4 ll.b (calabar), ll.m, s.j.d (san francisco), assistant professor of law, faculty of law, university of nigeria. nagbo@msn.com 5 ll.b (nig), ll.m, (nig), assistant professor of law, faculty of law, anambra state university, igbariam/ doctoral candidate, university of nigeria. nneilodigwe5@gmail.com mailto:obi.nnamuchi@yahoo.com mailto:nagbo@msn.com mailto:nagbo@msn.com justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 138 1. introduction and preliminary background: the original position the polemic regarding justiciability of human rights in nigeria derives from the balkanization or compartmentalization of the human rights provisions of the constitution into two distinct chapters – an idea that is traceable to the report of the committee which drafted the constitution of 1979. this constitution was remarkable for being the first in the country to entrench provisions known as “fundamental objectives and directives principles of state policy” (constitution, 1979, c. ii). the constitutional drafting committee defines ‘fundamental objectives’ as comprising of ideals toward which the nation is expected to strive whilst “directive principles” set forth policies which should be pursued in the efforts of the nation to realize the national ideals (fgn, 1976, p. 5). incorporated in chapter ii of the 1979 constitution, the provisions are repeated in the current one, the constitution of 1999. the chapter (constitution, 1999, as amended) enumerates classic socioeconomic rights such as right to work (section 17(3)(a),(b), right to health care (section 17(3)(d)), right to social security (section 17(3)(g)), right to education (section 18), and right to environment, (section 20) but does not designate them as human rights; instead, they are dubbed ‘directive principles’ and deemed non-justiciable (constitution, 1999, c. ii) the ouster provision, section 6(6)(c), stipulates that the judicial powers ‘(c) shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter ii of this constitution.’ the consequence of denying human rights status to the chapter and the proscriptive force of section 6(6)(c) is that even when armed with credible evidence of violation of any of the items specified in that chapter, an aggrieved party cannot seek remedy before the courts. this view received judicial affirmation in archbishop olubunmi okogie (trustee of roman catholic schools) and others v attorney-general of lagos state (1981) 2 nclr 337 at 350 (‘okogie’): while [section] 13 of the constitution makes it a duty and responsibility of the judiciary, among other organs of government, to conform to and apply the provisions of chapter ii, [section] 6(6)(c) of the same constitution makes it clear that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the fundamental objectives and directive principles of state policy. it is clear therefore that [section] 13 has not made chapter ii justiciable. this holding has been assailed by some commentators on the ground that it does not represent a correct interpretation of the constitution. human rights attorney femi falana, for instance, was of the view that: [t]he court of appeal erred in its restrictive interpretation of [section] 13 of the constitution as it did not consider the purport of the phrase, “except as otherwise provided in this constitution” in [section] 6(6)(c) thereof. if that had been done, the court would have come to a different conclusion as [section] 13 of the constitution has “otherwise provided” for the justiciability of chapter ii by imposing an obligation on all organs of obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 139 government and on all authorities and persons “to conform to observe and apply the provisions of this chapter of this constitution.” since [section] 13 of the constitution is a latter provision, it has altered the provision of the said [section] 6(6)(c ) of the constitution (falana, 2017, p. 6). similarly, a former chairman of nigeria’s national human rights commission denies any inconsistency between section 6(6)(c ) and 13, arguing that: . . . because of the contingent modifier in the former provision, which, in the structure of the nigerian constitution, necessarily means that the latter applies by virtue of the modifying contingency evinced in the former. to read the text in any other way would be to import extraneous consideration into the constitutional text (odinkalu, 2013). both commentators are wrong. the best approach to extricating the labyrinth of chapter ii is to resort to a literal interpretation of associated or relevant stipulations, the most important of which is section 6(6)(c ). the import of this provision is not shrouded in mystery: “the judicial powers vested in accordance with the foregoing provisions of this section (c) shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter ii of this constitution.” this implies that in the absence of a contrary constitutional stipulation (inferred from this language, “except as otherwise provided by this constitution”), there is a total forbiddance of the jurisdiction of courts regarding the matters listed in chapter ii. that was the reason for estranging or isolating the rights of chapter ii from those listed in chapter iv (cipo rights), a reason derived from the misconceived notion that nigeria lacks requisite capacity to address socioeconomic rights. strikingly, this tortuous position was not shared by two members of the constitutional drafting committee who objected to the majority report in these terms: the [constitutional drafting committee] draft has correspondingly robbed the masses of nigerians of one major instrument for monitoring and controlling the conduct of those making public decisions on their behalf. we cannot grasp the value of a set of ‘fundamental objectives and directive principles of state policy’ which cannot be enforced in law even when it is clear to all and sundry that state policy decision-makers are constantly and consistently violating these objectives and principles. (osoba and yusuf, 2019, p. 15). this statement (from two people who participated in the deliberations and completely understood the intent behind the language used in couching the provisions in contention) suggests that there was no intention to ascribe justiciability to chapter ii, convoluted as the language of section 6(6)(c) and 13 might be, otherwise there would have been no need to make a submission (for justiciability) chastising the majority for leaning against justiciability. moreover, the committee was quite categorical regarding the legal justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 140 status intended to be attached to the contents of the chapter. not wanting to confuse the items with the (recognized) human rights of chapter iv, the committee defines the term “fundamental objectives” as consisting of ideals toward which the nation would strive whereas “directive principles” refers to policies to be pursued in the efforts of the nation to realize the national ideals (fgn, 1976, p. v). as if to preempt objections regarding the interface between socioeconomic rights and chapter ii, the committee observed that socioeconomic rights are: [r]ights which can only come into existence after the government has provided facilities for them. thus, if there are facilities for education or medical services one can speak of the ‘right’ to such facilities. on the other hand, it will be ludicrous to refer to the ‘right’ to education or health where no facilities exist (fgn, 1976, p. xv). the committee never referred to any of the contents of the chapter as a human right. this was clearly not fortuitous. underlying the denial of the imprimatur of human rights to the provisions of chapter ii was an anticipation, on the part of the committee, that at some future date, it would be possible to jettison the cloak of non-justiciability. it was this idea that birthed the clause “except as otherwise provided by this constitution” in section 6(6)(c). the possibility for operationalizing this clause is evident, as succinctly captured in part ii of this work, in the provisions of section 4 and item 60, part i of the second schedule to the constitution (the exclusive legislative list), on the basis of which statutory frameworks have been enacted by the national assembly, conferring justiciability to some of the items contained in chapter ii. the argument of the preceding paragraphs notwithstanding, it needs to be pointed out that the holding in okogie, to the effect that section 13 of the constitution does not make chapter justiciable (on account of section 6(6)(c) is consistent with the positivist or restrictive approach to human rights. according to this approach, a human right comes into being only upon recognition by a positive law. in other words, codification is an indispensable ingredient of any law, including those relating to human rights. deducible from this postulation, therefore, is that since, in the case of nigeria, its constitution recognizes only civil and political (cipo) rights, by virtue of chapter iv, which is entitled ‘fundamental rights,’ only such rights can legitimately be projected as human rights and regarded as justiciable. similarly, in so far as the constitution does not recognize socioeconomic rights of chapter ii as human rights, they cannot be so treated. in absence of prior legal recognition, such claims amount to what an early proponent of the positivist tradition – jeremy bentham – describes as ‘simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts’ (harrison, 1983, p.78). as summed up in a recent publication (nnamuchi, 2008, p.6): by this thesis, only [cipo] rights are human rights; that is, in so far as the constitution or statutory law declares them as such. since [socioeconomic] rights generally lack this quality of prior legal recognition, they cannot properly be regarded as human rights. at best, they are moral imperatives but certainly not legal rights capable of attracting sanctions upon breach. as such, any action purporting to enforce them will be tantamount to obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 141 nothing more than an exercise in futility: ex nihilo nihil fit . . . therefore, by this view, directive principles under nigeria’s constitution encapsulate [socioeconomic] interests, not human rights: since [those] interests are directive principles under the constitution, they are neither justiciable nor enforceable. this restrictive approach (positivism) remains the dominant position in nigeria. in badejo v federal minister of education (1990) lrc (const) 735, for instance, the question was whether long-established admission procedure to federal government high schools, which was based on quota system instead of merit, was an infringement of the constitutionally guaranteed right to freedom from discrimination. the court declined to exercise jurisdiction on the ground that the action sought to establish a right to education, a right declared non-justiciable as a result of its inclusion in chapter ii of the constitution. consistent with this reasoning, a leading constitutional law scholar in the country, argues that since socioeconomic rights are ab initio non-justiciable, it would make no sense to incorporate them in a constitutional bill of rights (nwabueze, 1964, p. 408). focusing centrally on economic considerations, he contends that compelling a state by the instrumentality of a judicial fiat to allocate resources which it does not have would serve no useful purposes (nwabueze, 1964, p. 408). as a result, therefore, socioeconomic rights are best classified as directive principles, not rights subject to immediate enforcement. the value of such principles lies in being used as a parameter for assessing the responsiveness of the government to the needs of the citizenry – a view subsequently endorsed by the supreme court, per uwaifo j in attorney general of ondo state v. attorney general of the federation & ors (2002) 9 nwlr (part 772) 222 at 382 paras a–b (‘attorney general of ondo state’), “[w]hile they remain mere declarations, they cannot be enforced by legal procedure but would be seen as a failure of duty and responsibility of state organs if they acted in clear disregard of them …” curiously, another constitutional law scholar posits that since, in contradistinction to western countries, nigeria is yet to attain the status of a welfare state ‘all the provisions for welfare assistance [that is, the directive principles] must remain unattainable goals or ideals’ akande, 1982, p. 13). this conclusion is beset with serious problems – a mischaracterization and misrepresentation of the spirit of the constitution and its stipulations as clearly evident in this subsequent statement by the supreme court in attorney general of ondo state (at 391 para(s). f-g; 410 para(s). g-h.), “the constitution itself has placed the entire chapter ii [on directive principles] under the exclusive legislative list. by this, it simply means that all the directive principles need not remain mere or pious declaration. . .” it was on this basis that nnamuchi (2008, p.7) faults the scholar’s reasoning as based on a false premise, “on the assumption that given the disparity in wealth and development, nigeria cannot afford to provide welfare assistance to its citizen, as say for instance, canada.” the error in the statement [rests on the fact] that it fails to recognize that transformation of western countries to welfare states was not an automatic but a gradual process, and that levels of benefit afforded to citizens fluctuate depending on prevailing fiscal and other considerations. moreover, at its inception, welfare experiments in wealthier countries were rudimentary at justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 142 best and even though considerable advances have been recorded, there still remain serious systemic limitations and inadequacies notwithstanding that the experiment began several decades ago (nnamuchi, 2008, pp. 7 – 8). despite the strength of these counter arguments, the default position in nigeria, as understood in many quarters, remains that socioeconomic rights are not justiciable. consequently, victims of human rights violations of socioeconomic nature are denied remedy on account of the stipulation in section 6(6)(c) of the constitution, which ousts the jurisdiction of courts in such cases. but does this interpretation represent the correct position of the law? the rest of the paper is devoted to answering that question. following this introduction, part ii weaves the default position in nigeria regarding justiciability of socioeconomic rights into current reality, what the section terms “cosmopolitan (progressive) interpretation. it argues that extant legal regime and judicial decisions signal a shift from the constrictive position of the constitution, tilting toward granting the imprimatur of human rights to socioeconomic rights. in part iii, the paper explores the position of african regional human rights system regarding whether socioeconomic rights are amenable to the jurisdiction of courts. the section returns an affirmative response, holding that neither the regional law on the subject nor the adjudicatory body draws any category-based distinctions between cipo and socioeconomic rights. part iv delves into the evolution of human rights at the international level. it shows that although there were controversies regarding justiciability of socioeconomic rights, reflected most prominently in early european human rights system, the controversies have been laid to rest. building on the indivisibility paradigm of human rights as a formidable response to sceptics of socioeconomic rights justiciability, the conclusion – part v – is that any human rights jurisprudence straying from this paradigm is not in tune with current reality and that international law certainly provides guidance to nigeria regarding the status of socioeconomic rights. 2. socioeconomic rights in nigeria: cosmopolitan (progressive) interpretation an apt starting point of discussion on this section is to take cognizance of two salient points. the first is a statement in the previous section, to wit, the default (original) position regarding socioeconomic rights in nigeria tilts toward non-justiciability. second, nigeria is not a pariah in holding on to the bifurcation of human rights and the resulting judicial attitude toward each category of rights. as will become evident subsequently (see part iv), at one point or the other, this retrogressive posture held sway in many countries (those in europe, for instance). but there is a growing wind of change globally and this has affected the underlying dynamics regarding the protection of human rights, even in countries, such as nigeria, whose constitution generally denies recognition to socioeconomic rights. nigeria presents a particularly interesting situation. the prohibitory thrust of section 6(6)(c), as the supreme court pointed out in olafisoye v federal republic of nigeria, (2005) 51 wrn 52, is not all-encompassing: obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 143 [t]he non-justiciability [language] of [section] 6(6)(c) of the constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words ‘except as otherwise provided by this constitution’. this means that if the constitution otherwise provides in another section which makes a section or sections of chapter ii justiciable, it will be so interpreted by the court. the gist of the pronouncement by the supreme court, in other words, is that despite section 6(6)(c) of the constitution, which proscribes the jurisdiction of courts regarding socioeconomic rights of chapter ii, there could be constitutionally legitimate paths to dismantling the prohibitory tentacles of the provision. exactly which path to follow is the legislative prerogative of the national assembly. as set forth in section 4 of the constitution: (1) the legislative powers of the federal republic of nigeria shall be vested in a national assembly for the federation, which shall consist of a senate and a house of representatives. (2) the national assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part i of the second schedule to this constitution. specified in part i of the second schedule to the constitution (the exclusive legislative list) as inclusive in the authority of the national assembly is: 60. the establishment and regulation of authorities for the federation or any part thereof (a) to promote and enforce the observance of the fundamental objectives and directive principles contained in this constitution. a reasonable interpretation of item 60(a) seems to be that the provision grants authority to the national assembly to confer justiciability status to the directive principles in chapter ii of the constitution (nnamuchi, 2008, p. 19).the consequence of a legislative action under this authority would be to abrogate the application of section 6 (6)(c), thereby empowering courts in nigeria to enforce “observance” thereof of the directive principles of the constitution(nnamuchi, 2008, p. 19). a combined reading of section 4 (1) & (2) and item 60(a) on the exclusive legislative list would yield the following result. the national assembly may (a) enact a statutory framework declaring that some or all of the provisions of chapter ii are legal entitlements (human rights) and, therefore, justiciable; and/or (b) repeal section 6 (6)(c), thereby conferring jurisdiction on courts to entertain cases brought under chapter ii. there are dual avenues through which option (a) may be operationalized, namely, by (i) enacting a statute de novo or (ii) domesticating a treaty that had been ratified by nigeria (nnamuchi, 2008, p. 19). regardless of which justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 144 avenue is adopted by the national assembly, the legal effect is the same. domesticated treaties enthrone enforceable claims, just as statutes enacted through regular domestic legislative process. in fact, as elucidated by uwaifo j.s.c, underlying the specification of the directive principles within the exclusive legislative list under item 60(a) was “to show by and large that they can in letter be turned into enactments within the competence of the national assembly as far as practicable when the need should arise” (attorney general of ondo state, at 408 – 409, para(s). h-a.). acting on this authority, the national assembly enacted the african charter on human and peoples’ rights (ratification and enforcement) act (‘african charter act’) in march 1983, effectively converting the charter provisions to domestic law. the consequence of this action (domestication), as evident in the commencement section of the act, is that the provisions of the charter “have force of law in nigeria and shall be given full recognition and effect and be applied by all authorities” (section 1). remarkably, the incorporating act (african charter act) did not draw any distinction between the different categories of the rights specified in the charter but imported all of them; meaning that all the rights of the charter, whether of civil and political nature (such as those contained in chapter iv of the constitution) or socioeconomic genre (chapter ii, hitherto directive principles) as well as solidarity (third generation) rights are presently integrated within the domestic law of nigeria. this holistic incorporation prompted the summation by the supreme court in abacha & others v fawehinmi (2000) 6 nwlr (pt. 660) 228, that where [a] treaty is enacted into law by the national assembly, as was the case with the african charter, it becomes binding and the courts must give effect to it like all other laws falling within the judicial power of the courts and that the african charter is now part of the laws of nigeria and, therefore, like all other laws, the courts must uphold it. nemi v. the state (1994) 1 lrc 376 (‘nemi’) affirms that “the charter has become part of our domestic law” and “the enforcement of its provisions like all our other laws falls within the judicial powers of the courts as provided by the constitution and all other laws relating thereto” (nemi 385 c-d). these cases are important for concretizing the jurisdiction of courts, both domestic and foreign, seised with matters entrenched in chapter ii of the constitution, to exercise jurisdiction so long as the rights being invoked is also accorded recognition by the charter. caselaw is gradually evolving in support of this position. in serap v federal republic of nigeria (2012, para. 36) the court of justice of ecowas held that so long as the right in issue is “enshrined in an international instrument that is binding on a member state, the domestic legislation of that state cannot prevail on the international treaty or covenant, even if it is its own constitution.” therefore, for the government of nigeria to invoke “lack of justiciability of the concerned right” under a non-domesticated treaty such as the international covenant on economic, social and cultural rights (icescr) “to justify non accountability before this court, is completely baseless” (2012, para. 38) in so far as the same right is recognized in a legal regime that is binding upon the country such as the african charter. the court held that notwithstanding the declaration of the right to environment as non-justiciable by the nigerian constitution, justiciability is conferred on the right by virtue of the operation of art. 24 of the african charter (2012, para. 120). a similar decision was reached by the ecowas court of justice obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 145 in serap v federal republic of nigeria and universal basic education commission (2009), holding that notwithstanding chapter ii of the constitution, the right to education is justiciable under art. 17 of the african charter and, therefore, justiciable in nigeria. the effect of these decisions is to nullify the jurisdiction-proscription thrust of section 6(6)(c) of the constitution. the cosmopolitan attitude of the ecowas court of justice, a shift away from the restrictive approach of yesteryears, seems to have been embraced domestically. for instance, in attorney-general of ondo state v attorney-general of the federation & 35 ors (2002) 9 sup. ct. monthly 1, the supreme court of nigeria was asked to determine whether the national assembly was competent to legislate on a matter contained in chapter ii of the constitution, specifically, section 13 and 15 (5) – provisions deemed non-justiciable. section 13 stipulates that “it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution” whereas section 15(5) requires that “the state shall abolish all corrupt practices and abuse of power.” the second issue presented for determination centered on the constitutional validity of the corrupt practices and other related offences act no. 5 of 2000 and its enforcement body, the independent corrupt practices and other related offences commission (icpc) – both of which were established pursuant to section15 (5). the court had no difficulty finding that the national assembly has power to legislate on items in chapter ii of the constitution and make them justiciable: [i]t must be remembered that we are here concerned not with the interpretation of a statute but the constitution which is our organic law or grundnorm. any narrow interpretation of its provisions will do violence to it and will fail to achieve the goal set by the constitution (p. 53, paras. c-g). differently stated, the supreme court’s position is that the non-justiciability status of the provisions of chapter ii could be vested with justiciability through the enactment of a statute, precisely the kind represented by the icpc legislation. there are several instances of similar legislative actions regarding items contained in chapter ii. some of them are quite audacious, explicitly projecting as human rights those socioeconomic rights of chapter ii whose recognition has hitherto been circumscribed by the operation of section 6(6)(c). the first is the child’s rights act (‘cra’, 2003), which is a domestication of the un convention on the rights of the child (‘crc’, 1989). the statute bestows a wide array of human rights upon children in nigeria, including the right to survival and development (section 4), right to leisure, recreation and cultural activities (section 12), right to health(section 12), right to education (section 15), and a host of other socioeconomic rights. second is the compulsory, free universal basic education act (2004). section 2, titled “[r]ight of a child to compulsory, free universal basic education, etc,” requires the government to “provide free, compulsory and universal basic education for every child of primary and junior secondary, school age” (italics added). the third of such statutes is the national health act, which was enacted in 2014. the act was specific as to the goal of the national health system, namely, to “protect, promote and fulfil the rights justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 146 of the people of nigeria to have access to health care services” (section 1(1)(e)). (italics added). by explicitly conferring the status of human rights to the provisions of chapter ii of the constitution, these legislative regimes demonstrate quite vividly the eruption of a new thinking, deep-seated consciousness on the importance of socioeconomic rights to human development and welfare in the country. several local cases illustrate this wind of change. in a sharp disavowal of the restrictive approach, the court in odafe & ors v attorney-general & ors (2004) ahrlr 205 (nghc) held that by virtue of art. 16 of the african charter on human and peoples’ rights (1981), which guarantees the right to health, hiv-positive prisoners in nigeria are entitled to medical care, despite the non-justiciability of the right under chapter ii of the constitution. nwodo j. was unequivocal: the government of this country has incorporated the african charter on human and peoples’ rights cap 10 as part of the law of the country. the court of appeal in ubani v director sss . . . held that african charter is applicable in this country. the charter entrenched the socio-economic rights of a person. the court is enjoined to ensure the observation of these rights (para(s). 37 – 38). it is noteworthy that this case was decided in 2004, ten years before the enactment of the national health act. were similar circumstances to present themselves today, it is likely that the court would rely on the act by virtue of section1(1)(e), which mandates the government to “protect, promote and fulfil the rights of the people of nigeria to have access to health care services.” an authority for this claim is legal defense &assistance project (ledap) gte & ltd v federal ministry of education & another (2017).there, appellant sought, inter alia, a declaration that the constitutional provisions on the right to free, compulsory and universal primary education up to junior secondary school for all nigerian citizens under section 18(3)(a) of the constitution (contained in chapter ii) is an enforceable constitutional right by virtue of the compulsory, free universal basic education act, 2004. the argument of the plaintiff was that having enacted the compulsory, free universal basic education act, 2004, the national assembly has given legal effect to free universal primary education and free junior secondary education for every nigerian child. they relied on section 2(1) which stipulates that the government “shall provide free, compulsory and universal basic education for every child of primary and junior secondary, school age” and section 3(1) to the effect that the “services provided in public primary and junior secondary schools shall be free of charge.” the court held that although, ordinarily section 18(3) (a) of the constitution is non-justiciable, having been incorporated in chapter ii of the constitution, the effect of the enactment by the national assembly of the compulsory, free universal basic education act of 2004, was to confer justiciability to that provision of the constitution, notwithstanding section 6(6)(c) of the constitution and, therefore, failure by the government to provide free primary and junior secondary education would amount to a violation of constitution. this progressive trend was earlier affirmed in femi falana v attorney-general of the federation (2014): obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 147 the obligations under [section] 16 of the constitution are reinforced by the provisions of articles 15 – 18 of the african charter on human and peoples’ rights which is a part of our domestic law, the universal declaration of human rights, and the international covenant on economic, social and cultural rights . . . with the domestication of the african charter on human and peoples’ rights, and ratification by nigeria of the international bill of rights, comprising the universal declaration of human rights, the international covenant on civil and political rights and the international covenant on economic, social and cultural rights along with the optional protocols, the stage was set for the judiciary to assist in transforming the nigerian nation from political to economic democracy. the stage was set for the judiciary to take steps towards ensuring the economic prosperity of the nigerian state, by enforcing the implementation of the economic and social rights contained in the international bill of rights which nigeria has ratified, including its obligations under the constitution and other legislation. reference by the court to the international bill of rights speaks volumes. it evinces an evolution of cosmopolitanism in adjudication of socioeconomic rights in nigeria, a new awakening on the part of the judiciary that is traceable to the domestication of the african charter in 1983 and the promulgation of the fundamental rights (enforcement procedure) rules 2009 (‘frep rules’), by then chief justice of nigeria, idris legbo kutigi, pursuant to the powers conferred upon him by section 46(3) of the 1999 constitution. particularly remarkable is this requirement, imposed by the frep rules: for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions (frep rules, prmbl. section 3(b)). the thrust of this requirement is quite extensive and, in terms of socioeconomic rights justiciability, relatively progressive. once seised of a human rights action, the court is under an obligation to respect human rights and freedoms recognized not only by the african charter and other legal frameworks (including protocols) in the african human rights system, and the universal declaration of human rights (udhr) but also those contained in other instruments (including protocols) in the united nations (un) human rights system as well as regional and municipal human rights regimes (ndubuisi abanah and ors v inspector general of police & ors (2012) (‘ndubuisi abannah,’ 2012). interestingly, the frep rules does not erect any artificial barrier regarding justiciability on account of genre of rights. to the contrary, as the court held in 2012: it would seem however that the divide between fundamental rights and human rights has become somewhat blurred under the fundamental rights enforcement procedure rules, 2009 wherein ‘human rights’ is defined in justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 148 order 1 rule 2 thereof to include fundamental rights which transcend the rights specifically enshrined under chapter iv of the 1999 constitution and incorporate rights guaranteed under the african charter on human & peoples’ rights (‘ndubuisi abannah,’ 2012). therefore, considering that the african charter integrates both genres of rights into its definition of human rights, and there is nothing in the frep rules compelling courts to bifurcate or compartmentalize the rights in the charter into different genres, it is safe to assume that no such disparate conceptualization was intended. thus, in alhaji sani dododo v economic & financial crimes commission and others, the court of appeal held, elevating socioeconomic rights to the same status as cipo rights: the african charter is now part of the laws of this country protecting the social and economic rights of citizens. the african charter is preserved by the 1999 constitution and must always be relied on to recognize political and socioeconomic rights ((2103) 1 nwlr (pt. 1336) 468). for avoidance of doubt, the african charter was unambiguous as to how the two classes of rights are to be implemented by states parties, including nigeria, namely: . . . civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights (african charter, prmbl. para. 7). an astute interpretation of this provision seems to be that reliance on section 6(6)(c ) to deny recognition of socioeconomic rights of chapter ii of the constitution would amount to judicial error. this thinking, reflecting an exodus from ascription of superiority or primacy to one genre of rights over the other to equality of consideration and recognition, dovetails with the universality paradigm of human rights – a paradigm cascading throughout the world, including the african regional human rights system. 3. african regional human rights system and the justiciability question similar to human rights systems of other regions, countries in africa charted a human rights path that is distinctively afrocentric. this is evident in the charge given to african experts gathered in dakar, senegal in 1979, to wit, “to prepare an african human rights instrument based upon an african legal philosophy and responsive to african needs” (khushalani, 1983, p. 436). specifically, the experts were tasked with preparing a legal regime that unambiguously reflects an “african conception of human rights” (ahmed and appiagyei-atua, 1996, p. 836). that this charge was taken seriously is apparent in the stipulation in the african charter on human and peoples’ rights to the effect that in formulating the legal framework, states parties took into account the “virtues of their historical tradition and the values of african civilization which should inspire and characterize their reflection” on of human rights (african charter, prmbl.. obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 149 para. 5). the charter is replete with instances of african values and traditions, such as the requirement to “pay a particular attention to the right to development” (african charter, prmbl.. para. 7). and institutionalization of third generation rights, including the “right to development”(art.22) and the right to peace (art. 23). aside from this genre of human rights (third generation or solidarity rights), the charter recognizes both cipo and socioeconomic rights, including the right to non-discrimination (art. 2), right to life (art. 4), right to fair hearing (art.7), religious freedom (art. 8) as well as the right to health (art. 16), right to education (art. 17) and so forth. as to whether one genre of is justiciable but not the other, the charter was quite unambiguous, asserting that not only are cipo rights inseparable from socioeconomic rights “in their conception as well as universality,” attending to socioeconomic rights “is a guarantee for the enjoyment” of cipo rights (african charter, prmbl.. para. 7). inseparability of the two classes of human rights and actualization of one being projected as a sine qua non for the enjoyment of the other clearly shows that in terms of justiciability, differential treatment was not contemplated by the drafters of the african charter. support for this proposition is found in the implementation mechanism of the charter. neither art. 30, which establishes the african commission on human and peoples’ rights as an implementation arm of the charter, nor art. 45, on the mandate of the commission, tilts toward parochialism in the language used. the precise language of art. 30 is that the commission shall “promote human and peoples’ rights and ensure their protection in africa.” similarly, art. 45 specifies the following as the functions of the commission, namely, to promote human and people’s rights; ensure the protection of human and peoples’ rights under conditions laid down by the charter; interpret all the provisions of the charter at the request of a state party, an institution of the african union or an african organization recognized by the african union; and so forth. absence of any language disaggregating or compartmentalizing the rights according to a distinctive character suggests quite powerfully that the african commission is required to deal with both classes of right uniformly. to further buttress this claim, art. 60 mandates the jurisprudence of the commission to be anchored on domestic, regional as well as international human rights instruments. strikingly, there was no mention of justiciability-related distinction between cipo and socioeconomic rights in the operation of the commission, implying that no such distinction was intended in the human rights adjudicatory responsibilities of the implementing body. further evidence that no distinction (based on whether a right belongs to cipo or socioeconomic class of rights) was intended in the operation of the commission is provided by interrogating the communications it has entertained. most recent data indicates that the commission has decided 97 cases on merit (african commission on human and peoples’ rights, 2021). in one of such communications, free legal assistance group and others v zaire, comm. no. 25/89, 47/90, 56/91, 100/93 (1995), the commission held zaire in violation of both cipo and socioeconomic rights of the african charter, including the right to life (art. 4), the prohibition of torture and inhuman or degrading treatment, the right to liberty and security of person (art. 6), the right to fair hearing (art. 7), the right to health (art. 16), and the right to education (art. 17). similarly, in social and economic rights action center for economic and social rights v nigeria, comm. no. 155/96, justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 150 (2001), the commission held nigeria to have violated cipo and socioeconomic rights, including the right to freedom from discrimination (art. 2), right to life (art. 4), right to property (art. 14), right to health (art. 16), right of all peoples to freely dispose of their wealth and natural resources (art. 21) and right to clean environment (art. 24) of the african charter). playing a complementing role to the african commission in ensuring the realization of the rights of the african charter is the african court on human and peoples’ rights, which was established under art. i of the protocol to the african charter on human and people’s rights on the establishment of an african court on human and people’s rights (‘protocol to the african charter,’ 1998, art. 2). the court is vested with an allencompassing, cosmopolitan jurisdiction, extending to all cases and disputes submitted to it concerning the interpretation and application of the african charter, the protocol establishing the court and any other relevant human rights instrument ratified by the states concerned(‘protocol to the african charter,’ 1998, art. 3). there is no stipulation anywhere in the protocol ousting the jurisdiction of the court with respect to cases brought under any genre of human rights. as of march 2019, the african court of human and peoples’ rights has received 190 applications (cases) regarding contentious matters, out of which 175 was filed by individuals and the rest by non-governmental organizations (ngos) and the african commission (african court of human and peoples’ rights, contentious matters, 2019). current data indicates that 48 of the cases have been finalized whereas four have been transferred to the commission and 138 are pending (african court of human and peoples’ rights, contentious matters, 2019). the record of the court indicates that it has adjudicated cases involving not only cipo and socioeconomic rights but also those touching on third generation rights (african court of human and peoples’ rights, contentious matters, 2019). in this sense, the african court on human and peoples’ rights stands alone in terms of holistic human rights enforcement. it is noteworthy that only the african charter on human and peoples’ rights stamps third generation rights such as the right to development with the imprimatur of human rights (art. 22) – a recognition that although not shared by the rest of the international community, has received a seal of approval by the african court on human and peoples’ rights. african commission on human and peoples’ rights v republic of kenya, decided on may 26, 2017, is quite illustrative. the african commission lodged this complaint before the african court on behalf of an indigenous population in kenya – ogiek community – whose members were forcefully evicted from their ancestral land by the government of kenya, canvassing that the action of the government infringed upon the african charter. the court held that the eviction violated a bastion of rights, particularly art. 1 (obligation to adopt legislative or other measures to give effect to the rights of the charter), art. 2 (freedom from discrimination), art. 8 (right to religion), art. 14 (right to property), art. 17 (right to education), art. 21 (peoples’ freedom to dispose of their wealth and natural resources) and art. 22 (right to development). the best way to conceptualize this case is to see it as projecting the african human rights system as a pace-setter in terms of expansive approach to actualizing human rights, in that whilst other regional systems are still focused on only first and second generation human rights, africa is already building human rights jurisprudence that is inclusive also of third generation human rights. obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 151 a significant development to consider pertaining to the evolution of human rights in africa is the emergence of the african court of justice and human rights (acjhr) – a creature of art. 2 of the 2008 protocol on the statute of the acjhr (african union, protocol on the statute of the african court of justice and human rights, 2008) the acjhr protocol amalgamated the african court on human and peoples’ rights and the court of justice of the african union (established by the constitutive act of the african union, albeit never operational) into a single court, namely, the acjhr (constitutive act of the african union, oau doc, 2001). designated as “the main judicial organ of the african union,” the court comprises two chambers or sections, namely, a general affairs section and a human rights section (protocol on the statute of the african court of justice and human rights, annex, art. 2(1)). whereas the human rights section has jurisdiction over all human rights cases involving states parties to the african charter and the protocol, the general affairs section is charged with the responsibility of hearing all cases submitted under art. 28 of the statute, including those involving the interpretation and application of the constitutive act of the african union, the interpretation of the african charter as well as other regional treaties and so forth, excluding human rights cases (protocol on the statute of the african court of justice and human rights, annex, art. 17). in addition, the human rights section of the acjhr is mandated to hear cases pending before the african court on human and peoples’ rights, that have not been concluded before the entry into force of the protocol establishing the acjhr, on the understanding that such cases shall be dealt with in accordance with the protocol on the establishment of the african court on human and peoples’ rights the (protocol of the court of justice of the african union, art. 5). deducible from this recent development is the fact that as far as adjudication of the human rights provisions of the african charter is concerned, the human rights section of the acjhr performs identical functions as the african court on human and peoples’ rights. the implication, therefore, is that the acjhr is to decide human rights cases without distinction as to whether the right in question belongs to cipo, socioeconomic or solidarity category. plan is underway to abolish the acjhr and, in its stead, establish a court with a more extensive jurisdiction. on june 27, 2014, the african union adopted the protocol on amendments to the protocol on the statute of the african court of justice and human rights (malabo protocol) to replace the extant protocol on the statute of the acjhr. annexed to the protocol is the statute of the african court of justice and human and peoples’ rights. art. 1(3) of the statute redefined “court” to mean the african court of justice and human and peoples’ rights”(acjhpr). the major distinction between the acjhr and acjhpr is the addition of a third chamber, namely, the international criminal law section, to the already existing general section and human rights section – that is, a total of three chambers (protocol on amendments to the protocol on the statute of the african court of justice and human rights, annex, art(s). 6, 14). aside from this addition, the acjhpr retains the same function as the acjhr in the realm of human rights (protocol on amendments to the protocol on the statute of the african court of justice and human rights, annex, art. 7(1)). specifically, there will be no justiciabilityrelated distinctions based on genre of rights. therefore, in so far as no material changes are made to the operation of the human rights section of the court, further analysis of the law establishing the acjhpr is not necessary. justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 152 4. does international law deny justiciability status to socioeconomic rights? the concern of this section is quite straightforwardly simple; and that is, whether balkanization of human rights exists under international law, in the sense of compartmentalizing them as being distinct from each other in the realm of justiciability. the starting point of any productive response to this concern must begin with the united nations (un) charter (un charter, 1945) arguably the first contemporary legal regime on human rights. the human rights foundation of the organization is apparent from the preambular provisions and other stipulations of the charter. the organization came into being on account of the need, amongst others, “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women” (un charter, prmbl.) and one of its purposes is to promote and encourage “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (un charter, art. 1(3)). just as there was no explicit mention of any particular class or genre of human right in the charter, categorization or justiciabilitybased delineations are nowhere to be found throughout the instrument. the formal institutionalization of human rights as a defining element of relations amongst states in the un charter paved the way for refining and further elaboration of the constituent elements of the human rights milieu envisaged by the global community. this task was accomplished by the adoption of the universal declaration of human rights (udhr) in 1948. noting the importance of “a common understanding of [the human] rights and freedoms” (udhr, prmbl., para. 7) referenced in the un charter, the general assembly of the un proceeded to enumerate a legion of human rights, which it requires “every individual and every organ of society” to ensure “their universal and effective recognition and observance” (udhr, prmbl., para. 8). the human rights enshrined in the udhr and in respect to which the general assembly requires “common understanding” comprise cipo rights as well as socioeconomic rights, including freedom from discrimination (art. 2); right to life, liberty and security of the person(art. 3); right to free speech(art. 19); right to health(art. 25); right to education (art. 26), and so forth. there was no attempt to accord either genre of human rights superior recognition. both were placed on the same pedestal, although this was not without controversy. it was this controversy between western countries and the soviet union regarding the primacy of cipo or socioeconomic rights that led to subsequent bifurcation of human rights in 1966 via the adoption of two distinct legal instruments, namely, the international covenant on civil and political rights (iccpr, 1966) and international covenant on economic, social and cultural rights (icescr, 1966). interestingly, despite this bifurcation, the two instruments enjoy widespread ratification. as of november 2022, the iccpr has been ratified by 173 states (una, 2022) whereas the icescr has 171 states parties (unb, 2022). the high number of states parties to the two instruments evidences quite profoundly that both classes of human rights enjoy universal recognition as human rights and are equally subject to justiciability before domestic and international adjudicatory bodies. obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 153 the controversy referenced in the previous paragraph (disagreement between western countries and soviet union) underscored the position taken by europe in 1950 (two years after the adoption of the udhr) when it enacted the european convention on human rights and fundamental freedoms, more commonly referred to as the “european convention on human rights” (council of europe, 1950). the first legally-binding (of a general nature) human rights framework, the echr did not toe the path sculpted by the udhr in terms of incorporating both cipo and socioeconomic rights in its provisions; instead, it recognized only the former category of rights – a reason the instrument was described as a “charter on cipo rights” (nnamuchi, 2014, p. 47). the reason was that “1950 europe conceptualized human rights as non-inclusive of socioeconomic rights” (nnamuchi, 2014, p. 47). fortunately, this parochial conceptualization was short-lived, subsequently rendered nugatory by the emergence of the european social charter in 1961 (european social charter, 1961). according to the council of europe, under whose aegis the social charter was adopted, the instrument is: based on the principle of universality, interdependence and interrelation of human rights, set forth in the vienna declaration of 1993, which confirms that [socioeconomic] rights are human rights on an equal footing with civil and political rights (council of europe, 2022). deducible from this pronouncement is that, unlike yesteryears, the european regional human rights system currently accords equal recognition to cipo as well as socioeconomic rights. this explains the recognition of a battery of socioeconomic rights by the european social charter, including the right to work (art. 1), right to health (art.11), right to social security (art. 12) and the right of mothers and children to social and economic protection (art. 17) and so forth. remarkably, the european social charter (revised) of 1996 (council of europe, 1996), which embodies in one instrument all the rights guaranteed by the charter of 1961 and its additional protocol of 1988 (ets no. 128), accords recognition to an additional set of rights, including, inter alia, the right to protection against poverty and social exclusion (part ii, art. 30); right to housing (part ii, art. 31); right to protection in cases of termination of employment (part ii, art. 24). interestingly, the revised framework, which is gradually replacing the initial 1961 treaty, is being increasingly relied upon in adjudicating significant socioeconomic rights cases in europe. for instance, in international federation of human rights leagues (fidh) v france (european committee on social rights, 2004), the european committee on social rights held france to be in violation of art. 17 of the european social charter (revised), which recognizes the right of children to protection. the american declaration of the rights and duties of man (bogota declaration, 1948), on the other hands, adopts the same approach as the udhr – or vice versa. an often glossed-over fact is that the bogota declaration predates the udhr, having been adopted on may 2,1948, six clear months before the latter, which was adopted december 10, 1948. it is noteworthy that unlike other declarations in international law, the american declaration of the rights and duties of man imposes binding legal obligations upon states parties that are yet to ratify the american convention on human rights (pact of san jose, 1969) such as bahamas, cuba, canada and the united states. aside from securing traditional cipo justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 154 rights, the declaration equally guarantees socioeconomic rights, including the rights to health (art. xi), education (art. xii), culture (art. xiii), work (art. xiv), social security (art. xvi) and so forth. similarly, the american convention on human rights does not reserve any special treatment to any genre of rights. instead, chapter ii of the convention is explicitly devoted to recognizing cipo rights whilst chapter iii specifically deals with socioeconomic rights. aside from unambiguity in vesting jurisdiction regarding “matters relating to the fulfillment of the commitments made by the states parties to [the] convention,” including human rights stipulations, to the inter-american commission on human rights and the inter-american court of human rights (art. 33), the framework leaves no room for doubt as to the nature of human rights required to be promoted and adjudicated by the two bodies. art. 41 was quite specific, requiring the commission to “promote respect for and defense of human rights” whereas art. 63, mandates the court to entertain matters involving a “violation of a right or freedom protected by [the] convention . . .” in absence of any language specifying any form of justiciability-centered distinction between cipo and socioeconomic rights in the two instruments governing human rights protection in the inter-american human rights system, the conclusion must be that the regional system does not favor bifurcation of human rights. aside from the american declaration and convention on human rights, the additional protocol to the american convention on human rights in the area of economic, social and cultural rights (protocol of san salvador, 1988) also guarantees socioeconomic rights. in what seems like a preemption of bifurcation-centered objection, the protocol of san salvador, declares: considering the close relationship that exists between economic, social and cultural rights, and civil and political rights, in that the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person, for which reason both require permanent protection and promotion if they are to be fully realized, and the violation of some rights in favor of the realization of others can never be justified . . . (protocol of san salvador, 1988, prmbl. para 4). in line with this oneness or unity (of human rights) approach, the protocol of san salvador bestows recognition upon a gamut of socioeconomic rights as worthy of protection in the inter-american regional human rights systems. amongst them are the rights to work (art. 6), social security (art. 9), health (art. 10), healthy environment (art. 11), food (art. 12), education (art. 13), and so forth. to properly wrap up discussion on the position of international law regarding justiciability of socioeconomic rights, two things are necessary. first, it is fitting to consider two of the most widely ratified international human rights regimes, namely, the convention on the rights of the child (crc, 1989) and convention on the elimination of all forms of discrimination against women (cedaw, 1979). the provisions of the crc, which is the first child-rights centered legally binding human rights framework to be adopted under the aegis of the un and also the most widely ratified international human rights treaty – 196 states parties as of november 2022 (crc ratification, 2022) are obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 155 consistent with cosmopolitan approach to human rights interpretation. in addition to core cipo rights such as the rights to life (art. 6), freedom of expression (art. 13), freedom of thought, conscience and religion (art. 14) and freedom of association and assembly (art. 15), the crc incorporates also a number of socioeconomic rights including, inter alia, the rights to health (art. 24), social security (art. 26), education (art. 28) and rest and leisure, and to participate freely in cultural life and the arts (art. 31). similarly, cedaw, the second most widely ratified human rights treaty – 189 states parties as of november 2022 (cedaw ratification, 2022), does not compartmentalize its rights into any distinct group but equally recognizes both cipo and socioeconomic rights. there is no language in either regime ascribing justiciability to one class of rights whilst denying same imprimatur to the other. to the contrary, cedaw was quite explicit, noting that states parties to the international human rights instruments are under an obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights(cedaw, prmbl. para. 4). the second worthy pre-conclusory item of this section is an interrogation of the foremost international human rights instrument on socioeconomic rights, namely, the icescr, which was ratified without reservations by nigeria on july 29, 1993, and, therefore, binding upon the country. it is trite that the icescr enshrines all the globally recognized socioeconomic rights and, therefore, needs no further elaboration. critical to appreciating the reach of the covenant, however, are the general comments adopted by the committee on economic, social and cultural rights (committee on escr) – the body responsible for implementation of the provisions of the icescr. like other treaty monitoring bodies, the committee on escr publishes authoritative documents on the icescr called “general comments.” these documents are useful interpretations of distinct provisions of the instrument, aimed at guiding states parties on the requisite strategies or measures to be adopted and implemented in order to fulfil extant obligations. aside from the first two general comments, which explores the reporting obligation of states parties (general comment 1) and the critical nature of international technical assistance measures required to actualize socioeconomic rights (general comment 2), the rest of the general comments are dedicated to in-depth examinations of issues that are critical to operationalizing socioeconomic rights both on the international plane and domestically: (a) general comment no. 3, nature of states obligation under the icescr (general comment no. 3, 1990). (b) general comment 4, the right to adequate housing(general comment no. 4, 1991). (c) general comment no. 5, persons with disabilities (general comment no. 5, 1995). (d) general comment no. 6, the economic, social and cultural rights of older persons (general comment no. 6, 1996). (e) general comment no. 7, forced evictions, and the right to adequate housing(general comment no. 7, 1998). justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 156 (f) general comment no. 8,the relationship between economic sanctions and respect for economic, social and cultural rights(general comment no. 8, 1997). (g) general comment no. 9, the domestic application of the covenant(general comment no. 9, 1998). (h) general comment n0. 10. the role of national human rights institutions in the protection of economic, social and cultural rights(general comment no. 10, 1998). (i) general comment no. 11, plans of action for primary education(general comment no. 11, 1999). (j) general comment no. 12, right to adequate food (general comment no. 12, 1999). (k) general comment 13,the right to education (general comment no. 13, 1999). (l) general comment 14,the right to the highest attainable standard of health(general comment no. 14, 2000). (m) general comment no. 15,the right to water(general comment no. 15, 2003). (n) general comment no. 16, art. 3: the equal right of men and women to the enjoyment of all economic, social and cultural rights(general comment no. 16, 2005). (o) general comment no. 17, the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author(general comment no. 17, 2006). (p) general comment no. 18, art. 6: the right to work(general comment no.18, 2006). (q) general comment no. 19, the right to social security (art. 9) (general comment no. 19, 2007). (r) general comment no. 20, non-discrimination in economic, social and cultural rights (art. 2, para. 2) (general comment no. 20, 2009). (s) general comment no. 21, right of everyone to take part in cultural life (general comment no. 21, 2009). these general comments provide a pathway, an explanatory vernacular for concretizing the ideals of the icescr. in this sense, they are dispositive of the concern expressed in 1987 regarding the usefulness of according the status of right to a claim “if its normative content could be so indeterminate as to allow the possibility that the right holders possess no particular entitlement to anything” (alston, 1987, p. 332). by injecting clarity and precision to the language and terms of the covenant, the general comments refine the normativity of the provisions, thereby contributing to the development of the jurisprudence on socioeconomic rights and, a fortiori, their justiciability. 5. conclusion: fidelity to the indivisibility paradigm of human rights a reflective and thoughtful conclusion that must be drawn from the various assumptions, claims, postulations and analyses of this paper must be that international law obiajulu nnamuchi, joy ezeilo, miriam anozie, nicholas agbo, maria ilodigwe the age of human rights journal, 19 (december 2022) pp. 137-164 issn: 2340-9592 doi: 10.17561/tahrj.v19.7561 157 clearly charts a path to be followed by states in navigating the contours of human rights. whilst yesteryears, the terrains might have been murky, in the sense of vacuousness of socioeconomic rights jurisprudence; today, explicitly worded guidance are available on how to approach justiciability of socioeconomic rights. regarding the question, whether bifurcation or compartmentalization of human rights into distinct genres is consistent with international law, the response is resoundingly negative. although at different historical epochs in the evolution of contemporary human rights norms, there were visible marks of variegated strands of conceptualization, the last three decades have witnessed a coalesce of these strands into a common understanding. this understanding known as the “indivisibility paradigm of human rights,” acknowledges that “all human rights and fundamental freedoms are indivisible and interdependent,” and, therefore, “equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights” (limburg principles, 1986, para. 3). this idea, first espoused in the limburg principles of 1986, sculpted the path that have come to define contemporary global approach to human rights praxis. subsequent documents such as the vienna declaration have been even more audacious in expounding the idea: all human rights are universal, indivisible and interdependent and interrelated. the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (vienna declaration, 1993, para. 5). in other words, not only are all human rights universal, indivisible, interdependent and interrelated, the rights must be accorded the same treatment in terms of operationalization. the “duty of states . . .to protect” human rights (vienna declaration, 1993, para. 5) requires protection of “individuals and groups against human rights abuses,” and this duty extends to all human rights. therefore, international and domestic policy makers are not at liberty to cherry-pick which of the rights to implement or enforce and vice versa. the same is true of human rights adjudicatory bodies; the duty to protect human rights applies, with equal force to both cipo as well as socioeconomic rights. as maastricht guidelines emphasize: it is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. therefore, [s]tates are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights (maastricht guidelines, 1997, para. 4). by holding states accountable for shortcomings in the protection of socioeconomic rights in much the same way as they are for infringement of cipo rights, a very clear message is sent, to wit, according primacy to one category of rights over another, for whatever reason, is impermissible. it is a violation of international law. this is of critical importance to the advancement of human rights, for as the office of the un high justiciability of socioeconomic rights in nigeria and its critics: does international law provide any guidance? 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[online]. available at:https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv3&chapter=4&clang=_en (accessed: 17 october 2022). un, human rights office of the high commissioner (ohchr), ‘what are human rights?, 1996 – 2022 [online]. available at: https://www.ohchr.org/en/what-arehuman-rights (accessed 5. november 2022). vienna declaration and program of action, world conference on human rights, vienna, june 14 – 25, 1993, u.n. doc. a/conf.157/24 (part i) at 20 (1993) (vienna declaration). received: january, 1st 2022 accepted: october, 8th 2022 http://www.courtecowas.org/site2012/pdf_files/decisions/judgements/2012/serap_v_federal_republic_of_nigeria.pdf http://www.courtecowas.org/site2012/pdf_files/decisions/judgements/2012/serap_v_federal_republic_of_nigeria.pdf https://www.escr-net.org/caselaw/2010/socio-economic-rights-and-accountability-project-serap-v-federal-republic-nigeria-and https://www.escr-net.org/caselaw/2010/socio-economic-rights-and-accountability-project-serap-v-federal-republic-nigeria-and https://www.escr-net.org/caselaw/2010/socio-economic-rights-and-accountability-project-serap-v-federal-republic-nigeria-and https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-11&chapter=4&lang=en https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-11&chapter=4&lang=en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-8&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-8&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-4&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-4&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-3&chapter=4&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-3&chapter=4&clang=_en https://www.ohchr.org/en/what-are-human-rights https://www.ohchr.org/en/what-are-human-rights justiciability of socioeconomic rights in nigeria and its critics: does international law provide abstract 1. introduction and preliminary background: the original position 2. socioeconomic rights in nigeria: cosmopolitan (progressive) interpretation 3. african regional human rights system and the justiciability question 4. does international law deny justiciability status to socioeconomic rights? 5. conclusion: fidelity to the indivisibility paradigm of human rights references access to justice and the right to democratic participation of victims of domestic violence. from the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 1 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics julieta marotta1 abstract: this study employs a sociolegal approach to examine the relationship between access to justice and democratic participation by exploring both legal frameworks and the lived experiences of domestic violence victims. analyzing international and domestic laws—including the legal empowerment approach— and conducting 54 in-depth interviews with victims, the research reveals that although progressive legal norms exist to promote participation in policy processes, these remain largely unknown and underutilized by the affected individuals. instead, victims often engage in peer-to-peer legal empowerment, sharing rights information within their networks. the findings underscore the need for enhanced rights awareness campaigns and more accessible legal information to foster meaningful democratic engagement among vulnerable populations. keywords: sociolegal studies, access to justice, legal empowerment, democratic participation, victims of domestic violence, in-depth interviews. 1. introduction access to justice is a fundamental human right and serves as a vehicle through which individuals can assert other rights and freedoms (lorenzetti, 2008). it is also a critical driver for achieving the sustainable development goals (sdgs) by laying the foundation for democratic participation and accountability (marotta, 2018). for instance, sdg 16 emphasizes the need to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels,” highlighting access to justice as both a universal right and a key mechanism for societal progress. when individuals have effective access to justice, they are empowered to engage with the state, demand the enforcement of their rights, and hold institutions accountable. in the context of sdg 5, for example, ensuring that women can live free from discrimination and violence hinges on both awareness of their rights and the availability of accessible legal frameworks. here, the concept of legal empowerment becomes essential. as bruce et al. (2007) argue, legal empowerment comprises three core elements: (i) empowering individuals to understand and claim their rights, (ii) developing a responsive system that facilitates these claims, and (iii) maintaining an inclusive judiciary. this approach not only enhances access to justice but also promotes active participation in democratic processes. 1 maastricht university / united nations university-merit (julieta.marotta@maastrichtuniversity.nl). https://orcid.org/0000-0001-9157-041x https://doi.org/10.17561/tahrj.v25.9294 https://orcid.org/0000-0001-9157-041x access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 2 democratic participation itself is a fundamental right, providing formal channels through which individuals can influence public policy and hold the state accountable. however, merely having the right to participate is insufficient if individuals lack the rights awareness and empowerment needed to exercise that right effectively. this study adopts a broad definition of democratic participation, encompassing all opportunities for individuals to shape public policy. the legal empowerment framework particularly recognizes the vulnerabilities faced by marginalized groups and advocates for mechanisms that enable these individuals to influence policies effectively (bruce et al., 2007). previous studies have demonstrated that when vulnerable groups are legally empowered, they gain the “legal power” necessary to initiate change, and participation in public policy becomes feasible once individuals possess both the requisite understanding and the appropriate channels for engagement (jablkowski, 2007) in addressing issues of gender-based violence, the convention on the elimination of all forms of discrimination against women frames violence against women as a discriminatory act rooted in historical power imbalances (cedaw, 1981). the concept of gender discrimination is understood to be based on the historical unequal power relationship between men and women. this unequal relationship manifests itself within the family structure and beyond (e.g. in employment). human rights treaties and domestic laws recognize the different forms in which gender violence can manifest itself (physical, psychological, and symbolic) and in different spheres of life (domestic, organizational, media, and employment). legal discriminatory actions against women can be carried out through the law and the actions of providers, that is, through the passive or active response of the judicial system to domestic violence (general secretariat organization of american states, 2007, paras. 8–10). domestic violence is a form of gender-based violence. the argentine law 26485 on the rights of women to a life free of violence, in its article 6, defines domestic violence against women as a form of gender-based violence that is “perpetrated against women by a member of the family group, regardless of the physical space in which it takes place, and that damages the dignity, well-being, physical, psychological, sexual, economic or patrimonial integrity, freedom, including reproductive freedom and the right to the full development of women. the family group is understood to be that which arises from kinship by consanguinity or affinity, marriage, de facto unions, and partnerships or courtship. it includes current or terminated relationships in which cohabitation is not a prerequisite.” this is the definition that will be followed in this study. by examining both legal provisions and empirical insights from interviews with domestic violence victims, this study explores how access to justice can enhance the democratic participation rights of these individuals. in doing so, it illuminates the pathways through which victims can engage in the policy process to address their needs and safeguard their rights. 2. methodology this study employs a case study design to explore how victims of domestic violence exercise their right to democratic participation through access to justice. the city of buenos https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 3 aires was selected as the case study site due to its recent judicial reforms and modern constitutional framework, which provide a unique context for examining legal empowerment. the research utilizes a deductive–inductive approach based on the theoretical framework proposed by bruce et al. (2007). initially, the study applies established legal empowerment components to formulate theoretical expectations. it then adapts these expectations inductively by analyzing empirical data gathered from victims of domestic violence. the applicable norms to the city of buenos aires were studied following the hierarchical structure incorporated by the national constitution of argentina (that is, 1st constitutional law, 2nd federal law, 3rd city law). constitutional law includes the national constitution of argentina and international human rights treaties. the national constitution gives the value premises under which argentine society is formed. human rights treaties, incorporated in the national constitution in 1994, recognize and extend rights to the people (gelli, 2004, pp. 591–597). the federal domain is represented primarily by law 26485 on the right of women to live free of violence. law 26485 incorporates principles and standards set up by human rights treaties and offers a holistic approach to gender-based violence (medina et al., 2013). primary data were collected through 54 in-depth interviews conducted at the public prosecutor’s office of buenos aires (see annex 1. characteristics of the sample). these interviews, undertaken between 2012 and 2014, were structured to capture both the legal experiences and personal perceptions of victims regarding their access to justice and subsequent participation in the policy process. to ensure the robustness of the findings, thirty-one victims were interviewed twice with a six-month interval between sessions. this design allowed for a deeper exploration of changes in participants’ legal awareness and engagement over time. interviews were conducted using open-ended, non-leading questions to minimize bias and capture genuine insights. the discussions focused on how victims understood their legal rights, the information provided by legal organizations, and the extent to which they felt empowered to participate in democratic processes. the data were then analyzed using a content analysis approach (bryman, 2012; graham r gibbs, 2013; rubin & rubin, 2012; yin, 2009). nvivo software facilitated systematic coding of both pre-selected and emergent themes, enabling the identification of key patterns related to legal empowerment and democratic participation. overall, this mixed deductive–inductive approach provides a comprehensive understanding of both the normative and empirical dimensions of legal empowerment among victims of domestic violence, as well as insights into how legal organizations and public policies might be reformed to enhance democratic engagement. 3. the right to access to justice and to democratic participation legal empowerment is an approach to access to justice (macdonald, roderick a., 2010; marotta, 2017), that focuses on enhancing individuals' capacities to actively https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 4 engage in conflict resolution and take control over issues affecting their lives (van de meene & van rooij, 2008, pp. 6–8). this approach is seen as a transformative pathway that strengthens individuals' agency, freedoms, and capacity to exercise their rights (gramatikov & porter, 2010). the legal empowerment approach to access to justice suggests that normative developments can mitigate barriers to community autonomy, selfreliance, and democratic participation (friedmann, 1992). by addressing these barriers, legal empowerment contributes to an environment where individuals are better equipped to participate actively in policy processes. however, for meaningful participation to occur, norms must establish mechanisms that genuinely allow individuals to voice their concerns and influence decisions (bruce et al., 2007). the theoretical framework proposed by bruce et al. in 2007, presents a framework to measure legal empowerment, consisting of four interrelated components: rights enhancement, rights awareness, rights enablement, and rights enforcement. rights enhancement pertains to developments in norms and legal organizations that provide vulnerable groups with channels to influence the policy process. rights awareness encompasses the cognitive aspect of the framework, emphasizing the need for individuals seeking justice to recognize their rights and the means to exercise them; this is often seen as the “foundation of legal empowerment” (bruce et al., 2007). rights enablement involves the mechanisms available for individuals to effectively utilize their rights, while rights enforcement examines the norms governing how these rights can be executed, including mechanisms for applying the norm to specific situations. the cyclical relationship among these components suggests that individuals who achieve legal empowerment are more likely to engage in democratic participation, potentially becoming active members of bottom-up movements and participating in policy. consequently, the legal empowerment approach positions the right to democratic participation as a vital outcome, assuming that those who gain legal empowerment will tend to participate in the policy process (bruce et al., 2007). some argue that the concept of democracy can be coined back to ancient greece times meaning “rule by the people” (boryczka, 2008). in current times, democracies have “three basic political institutions: a national parliament composed of elected representatives, and popularly chosen local governments that were ultimately subordinate to the national government” (dahl, 2020, p. 17). the democratic systems allow for power distribution reducing abuse and inviting for broader involvement. hence, democratic governments have slowly opened their array of who can participate, making democratic participation more inclusive. as such, international and domestic laws acknowledge the possibility for different groups to participate and present different ways in which people can participate in policy decisions, besides the traditional way of delegation of power through the vote. for example, the treaty of lisbon enhances citizens’ participation and protection for increased efficiency and transparency (the treaty of lisbon | fact sheets on the european union | european parliament, 2024). democratization also exists within different sectors in government. for example, the democratization of the judicial system has been essential for achieving equitable enforcement. for instance, gender quota laws and trial by jury, as established by the https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 5 argentine and city constitutions, promoted diversity within the judicial system, thereby reflecting the varied interests of society (medina, 2009). in addition, political parties serve as crucial intermediaries between the populace and power, providing opportunities for individuals to engage in the legislative process by presenting policy suggestions (ley orgánica de los partidos políticos, 1985). the exercise of the right to access to justice and the right to democratic participation relies heavily on access to information and education, which cultivates awareness and can ignite a desire for social change through available democratic tools. the right to information is considered a needed tool for free participation in society (general comment no. 13, 1999). furthermore, this right is considered closely related to the recognition of other rights allowing people to make informed and free decisions in every sphere of life (medina et al., 2013, pp. 441–52). the right to education also plays a crucial role in fostering democratic participation by creating awareness and promoting critical minds (general comment no. 13, 1999; la nación, 2015). education, recognized as an intrinsic human right by legal provisions, serves to exercise other rights. as such, the educational system plays a crucial role in fostering democratic values, equality, non-discrimination, and civic responsibility. these principles are reinforced by human rights treaties (gelli, 2004, pp. 110–115). education empowers individuals to interpret and utilize information, which is critical for free societal participation (general comment no. 13, 1999) and contributes to having an active citizenry to contribute to societal progress (gelli, 2004, p. 441). the right to information is intrinsically linked to the right to education; only an informed individual can engage meaningfully in civic life. within the legal empowerment framework, information is viewed as a catalyst for awareness and motivation to participate in social change. the principle of free association is pivotal in the legal empowerment approach, recognizing the importance of collective action among individuals with shared interests to drive democratic engagement. freedom of expression facilitates democratic processes by promoting public debate on matters of interest and enabling citizens to critically evaluate different political options. furthermore, federal measures have been implemented to enhance gender equality in democratic participation (general secretariat organization of american states, 2007, para. 115). ultimately, the guiding right to democratic participation signifies the opportunities provided by legal provisions for individuals to engage in the policy-making process. as noted by bruce et al., legal provisions must empower vulnerable groups to influence policy formulation, ensuring that their needs are reflected in legal frameworks. participation in the policy process is contingent on individuals’ understanding of their rights and access to channels for engagement. the subsequent analysis will explore the legal avenues available for victims to express their voices as integral members of society. the inclusion of legal provisions and design of organizations to ensure democratic participation can lead to legal empowerment which manifests as an enhancement of autonomy in community decision-making, self-reliance, and social learning, ultimately resulting in participation in the policy process (bruce et al., 2007; https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 6 marotta, 2017). therefore, access to justice can offer mechanisms (through accurate laws and organizations) for individuals to express their voices and participate in the policy process (bruce et al., 2007). moreover, laws that incorporate mechanisms for consulting people about their issues can mitigate obstacles to exercising rights, such as addressing gender inequality and biases, and ensuring the simplicity of legal terminology to enhance understanding among vulnerable groups (bruce et al., 2007, pp. 12, 20–21, 35; van de meene and van rooij, 2008, pp. 9–11; macdonald, roderick a., 2010, pp. 512–13). additionally, norms that allow for active participation in legal proceedings can enhance individuals’ chances of retaining “possession” of their conflicts and finding appropriate remedies (christie, 1977, pp. 1–2). this emphasis on understanding rights, particularly through simplified legal terminology, is essential, given the documented relationship between comprehension and the ability to exercise rights (bruce et al., 2007, pp. 20–21, 35; van de meene and van rooij, 2008, pp. 9–11). the american declaration of the rights and duties of man underscores the people’s right to participate in the policymaking process, with direct communication with the government deemed essential. traditionally, individuals engage in political processes by exercising their rights to vote, join political parties, assemble, and demonstrate (gelli, 2004, p. 322). at an international level, the american convention on human rights, “pact of san josé,” reinforces citizens’ rights to participate in governance, including the right to be elected and to vote freely (article 23.1 and 1.c). the right to vote was first limited to men, and with time, this right has been democratized and extended to other groups. for example, new zealand granted women the right to vote in 1893, becoming the first nation to do so (world suffrage timeline), and argentina granted political rights to women in 1947. affirmative actions has been another means to democratize the public policy process, and a number of constitutions further promotes equality through affirmative action (example, the constitution of the united states, fourteenth amendment, and the constitution of argentina, art. 37) (gelli, 2004, p. 956; krstic, 1997). in argentina, several mechanisms have been introduced to strengthen democracy (gelli, 2004, p. 728), including the ombudsman as a means for citizens to voice concerns, public hearings for community engagement, and the establishment of neighborhood booths to involve the community in public safety policies. the city constitution of buenos aires, for example, advocates for "participatory democracy," mandating that all governmental acts be public (constitución de la ciudad, 1996, article 1). the provisions at the city level offer additional avenues for citizens to engage politically, including the right to vote (art. 62), to form or join political parties (art. 61), to be elected (art. 61-62), and to hold representatives accountable (art. 67). scholars argue that these provisions empower the electorate as a fourth branch of government (gelli, 2004, p. 901). the city constitution also adopts trial by jury, promoting an adversarial system (arts. 13.3 and 81.2). however, criticisms arise regarding the code of criminal procedure for buenos aires, which has yet to incorporate this mechanism, reflecting outdated and anti-democratic ideals (cevasco, 2009, pp. 55–58), see table 1. summary legal mechanisms. https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 7 the exercise of voting rights and participation in political parties, which was recognized in the constitution of argentina, represent foundational avenues for democratic engagement. the constitution of the city of buenos aires, introduced various channels of participation, such as ombudsman services, public hearings, and digital platforms, which have expanded opportunities for civic participation (quiroga lavié, 1996). the ongoing democratization of the judicial system further ensures diverse representation in policymaking, reflecting society's varied interests. however, these advancements underscore the pressing need for an educational system that equips individuals with the skills necessary to navigate and utilize these channels effectively (marotta, 2017). 4. the way victims of domestic violence who obtained access to justice exercise their right to democratic participation from a sociolegal approach, it is interesting to understand how different people relate to their right to democratic participation. hence, this study further explores how table 1. summary legal mechanisms summary of legal mechanisms available for victims to participate in democracy national constitution city constitution law 26485 right to vote (art 37) right to vote (art 62) the right to active participation in legal procedures (art 16g) right to constitute or be part of a political party (art 38) right to constitute or be part of a political party (art 61) right to assemble and to demonstrate (art 14) right to be elected (art 61-62) semi-direct participation (art 39) political rights and citizenship participation (art 61) popular consultation (art 40) right to communicate, request, disseminate, and receive information freely (art 105) principle of publicity (art 1) right to expression (art 12) right of people to teach and to learn art 14) recommend communication between the electorate and public administration (art 19) right to information (art 38, 43) hold the state accountable (art 67) right to freely associate (art 14) right to present bills before the buenos aires congress (art 64) right to freedom of expression (art 14) right to be called for public hearings to debate matters of general interest (art 66) affirmative actions (art 37) mandatory referendums in matters related to the sanction, amendment, or derogation of provisions (art 65) hold the state accountable (art 59) https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 8 victims of domestic violence who obtained access to justice exercise their right to democratic participation. this is under the assumption mentioned above that as people get to know the law (legal empower people) they will have more chances to participate in the policy process. it is worth mentioning that in argentina, law 26485 on the rights of women to a life free of violence described new tendencies on holistic approaches, giving a comprehensive remedy to women. this law recognizes the need to inform victims of their rights within the legal process, thereby promoting active participation (ley 26485, 2009, article 16.g). service providers are responsible for informing victims of their rights and available resources (art. 36). such regulations are integral to the legal empowerment framework, as they can enhance participation among vulnerable groups. awareness of rights and options may foster advocacy for change, although such forms of participation remain underutilized. the laws in argentina provide options for people to participate in the policy process and exercise democratic participation on their own initiative. however, the empirical evidence shows that those options are not regularly conceived by victims even once they obtain access to justice. only one victim participated in the policy process because she was part of a political party. this victim had two unique characteristics if compared to other victims of the sample: she was a lawyer and her area of specialization was domestic violence. she worked with domestic violence cases every day and felt committed to her clients. she worked on a bill that recommended stronger criminal penalties for the violation of preventive measures and the creation of a ministry for the family. this victim had a good understanding of the problems, struggles, and risks victims face when they access to justice. the results of this study observed that understanding the topic and daily relation with a subject indeed enhances the possibilities of exercising the right to democratic participation. legal terminology appeared as an obstacle to understanding, and brochures or written information (for example, providers reading rights to victims) were not remembered by victims. however, it can be perceived that visual tools such as the reference to tv news with images instead of words were more appropriate for effective transmission of information (for example, “maquettes” to represent a scene in the legal procedure, short stories on paper or computers to represent a scene with tips on how to present a complaint and what to do from there). empirical evidence shows that even when not participating in the policy process, victims legally empower other victims. they become active members by creating awareness in other victims, and therefore, other forms of voluntary associations may occur. sharing experiences of abuse with others seems to be an element that initiates a chain of recommendations and a feeling of non-isolation. furthermore, victims mentioned during interviews a network of transmission of information. some victims submitted their complaints because other victims recommended them to do so. other victims started a chain by recommending to other victims to submit a complaint. most of these victims were recommended to submit a complaint in general, and those who specified the place, mention the police and the office of domestic violence https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 9 (a legal organization created in 2006 meant to assist victims by offering an entrance to the judicial system with a holistic approach to violence) (ovd oficina de violencia domestica). interestingly, the group who did not receive a recommendation to complain stated that if they encountered someone with the same situation, they would recommend they to submit either a complaint in general, to call the toll-free number 0800mujer, or to go to the office of domestic violence. only one victim, who was a lawyer but not specialized in family law, said that she did not know what she would recommend to someone else, but mentioned that a friend who also suffered harassment consulted a judge and was told to pose a (verbal) threat on him, but not to submit a complaint. the judge mentioned to her that he was reluctant of the possibility of the police and the judicial system to contribute to the resolution of cases of harassment. legal documents record the social environment of victims to assess their vulnerability to being abused and indicate that all victims, except two, have support provided by others. these numbers might say something about the characteristics of victims who submit complaints: most have affectional support. victims refer to social networks that know about the situation they are living in and that can assist them in case of need. these social networks encompassed family, friends, psychologists, lawyers, and/ or colleagues. during the second interview, victims were asked again about their social networks with a question related to the extent they spoke to or received support from someone during the months between the first and second interviews. victims expressed talking with colleagues about their complaints, building a new group of friends,2 talking to former friends,3 and talking to family members.4 therefore, there is evidence to state that those victims who access the public prosecutor’s office share information with their social network. victims also show themselves to be sensitive to what happened to other victims. they were asked what they learned or what surprised them the most from their first meeting at an access point (that is, the police station, office of domestic violence, and public prosecutor’s office). many who access through the office of domestic violence mentioned that what surprised them the most was the number of women suffering the same problem. victims recognized that as a learning experience. this sentiment may also result in participation in the policy process if those victims preserve their interest and find the opportunity to group and participate. 2 a victim expresses talking to new friends who live in the same welfare shelter and who also experienced violence, v2, 007; another victim lives in a hotel and expresses that her neighbors help her as she helps them, they support each other, v2, 039. 3 a victim expresses having 2 friends in the province of buenos aires and that she spent christmas with one of them, though the victim was evasive in answering why she went to her friend’s house to spend christmas. according to legal documents, the neighbor who was called to testify stated not wanting to get involved any more in the violence because the situation repeats over and over, v2, 027; and finally another victim explains how she re-established communication with her friends after the relationship with the accused ended, v2, 052. 4 v2, 029 (receives help from her son); v2, 007 (talks with her father); v2, 006 (shares her problems with a brother in paraguay, with the mother of her granddaughter, and with her 11-year-old granddaughter); v2, 052 (receives support from her mother). https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 10 the actions above mentioned are evidence of the enhancement of legal empowerment in victims and can have the potential to trigger participation in the policy process through voluntary associations. nevertheless, no victim expressed a desire or even the contemplation of associating with other victims. one victim, however, expressed a general desire to work with other victims and to help them with their problems. there is a potential that these victims find their way to participate in the policy process if the compromise increases or if spaces that allow for and boost connections are provided (for example, an app). technology can become the most effective and inclusive tool to facilitate the communication of legal organizations with people and of people with peers. sharing experiences with peers and learning about the struggles of others could be deemed as social rights awareness nourished by the actions of others. this can be concluded after understanding that victims perceived the waiting room as a space where they learned that other women face similar situations.5 they expressed that in the waiting room, they realized that they were not the only ones encountering such a problem. some victims even perceived a sense of belonging to a group and many victims mentioned how it surprised them to see the number of women in the waiting room. therefore, the characteristics of the waiting room (that is, the peer-to-peer transfer of information or “the peer-to-peer legal empowerment”), seem to be another powerful tool to trigger democratic participation. policy initiatives that create for victims a space of reunion, and reflection, and offer a chance to create a network, could enhance democratic participation through legal empowerment. the social rejection of violence expressed by the media also showed itself to be part of the process of rights awareness. the social network of victims is also perceived as a transmitter of media information, legal information, and personal experiences. for example, a victim explained that she learned from her daughter that in bolivia there were also demonstrations made by women requesting jail sentences for men who perform acts of physical violence. another victim explained that her sister is a lawyer and explained her rights, though she still could not recall them. a different victim mentioned that nothing specifically surprised her about the meetings with legal organizations because two friends experienced a similar situation and shared with her the steps they followed and how they felt. victims who received information via their social network were perceived more confident towards the legal procedure. as explained by a victim speaking about how her conversation with the ex-girlfriend of the accused reaffirmed her in the decision to submit the complaint, i cannot do this alone. i need a battalion of people behind me to help me, because one alone cannot do it. and the ex-girlfriend [of the accused] told me that i was right, that the only way to end a relationship with him was through this way [that is, referring to the complaint], right? not by talking. participation in the legal procedure is a sign of someone who is gaining legal empowerment. however, this study observed limited participation. victims showed not to feel entitled to 5 the office of domestic violence incorporated some innovative ideas in their waiting rooms (for example, a tv) and also considered including storytellers. https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 11 request action from the legal organizations. after victims submitted the complaint, they become passive and wait for the legal organization to call and instruct them on what to do. it was rare the case that a victim felt entitled to request for action. only one female victim expressed walking to the civil court to request updates on her case, and the only male victim of the sample expressed doing walk-ins at the public prosecutor’s office to request updates. the lack of participation is linked to the lack of digestible information provided to victims regarding their role in the process. these empirical observations on the lack of participation of victims in the legal procedure and in the policy process could be also explained by the role victims perceived as having in these processes. victims were asked, during first interviews, an open-ended question to understand how they positioned themselves in the problem. for this purpose, they were asked on whom they thought the solution to their problem depended. the categories mentioned in table 2 were identified in their answers. table 2. solution to problems who do you think the solution of your problem depends on? judicial system me & … him me judicial system & … policy design 14 15 10 9 1 1 as reflected in table 2, most victims, during the first interviews, believed that the solution to their problems to some extent depended on them (“me and …” and “me”). victims who stated that the solution solely depended on them (“me”) were followed in number by those who believed that the solution depended only on the judicial system (“judicial system”) and only on the accused (“him”). lastly, one victim believed that the solution to her problem depended on the judicial system and someone else (“judicial system and …”); while another victim believed that it depended on the way policies were designed (“policy design”). the victims who mentioned that the solution to their problems depended solely on themselves referred to the performance of activities to seek help such as materializing the initial motivation to act (that is, submitting complaints) and their capacity to keep up with the legal procedure, by responding to the different requirements of organizations. some victims learned that it also helps to both control the emotional element by being less nervous and to make deeper decisions on the type of life they want to have as hinted by my psychologist. another victim focused her answer on the accused, stating that it depended on her capacity to show the accused that her intentions were not to confront but to solve the problem. some victims were asked a closed-ended question during second interviews to determine to what extent they thought that what happened in their legal procedure up to that date depended exclusively on them. no victim perceived themselves as an important part of the legal procedure. some stated that to some or to a large extent it depended on them, because they dared or had the courage to submit complaints and exteriorized https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 12 domestic violence. other victims expressed that it depended on them to the extent that they had to perform what was needed and provide the needed information, some with the help of lawyers. several victims did not place themselves within the spectrum of factors responsible for the solution to their problems. this group were asked a follow-up question to understand how they perceived their role in the search for a solution to their problems. some expressed roles that demanded personal action (for example, presenting complaints and visiting psychologists) and others expressed roles that demanded responding to requirements of the different organizations (for example, testify, present witnesses, participate in mediation, and transcribe text messages). submitting complaints and responding to requests by the judicial system (that is to say, participating) were by themselves acts that demanded legal empowerment. however, after this first action, even in cases where victims placed themselves as the main responsible parties for the solution to their problems, they tended to address that that responsibility was materialized by the event of submitting a complaint. none of them expressed moments in where they were participating in the process. mostly, they remained passive after the submission of the complaint, transferring the ownership of the conflict to the legal organization. one victim expressed that the solution to her problem depended on a change in the way in which policies are designed. she said that domestic violence policies needed to be strategically designed and implemented by the creation of a ministry of the family. the victim who brought the policy design factor is the lawyer–previously mentioned–who was a specialist in domestic violence cases and expressed her participation in a political party and in the development of a bill proposal to improve policies on domestic violence. some victims were asked (after six months) to what extent they felt in control of the legal procedure during those months. some victims said they are handling the problems better and taking things one step at a time, while others felt in control because they are the providers of information every time they were called and because most of the actions depended on them. another victim expressed being able to control her daily activities to protect herself (for example, being careful while on the street), and a different interviewee stated that she could not control the legal procedure at all because as a victim she was called mostly to check on how she was doing. these answers again show that victims do not feel entitled to participate in the legal procedure. it can be deduced from the empirical evidence that victims use alternative forms of participation (for example, sharing information about resources). fostering (and formalizing) these alternatives may contribute to their participation in the decision-making process. in this regard, further tools can be incorporated to translate the complexity of the law into tangible messages to enhance participation. besides receiving information on the legal procedures to ensure participation, victims need to be given spaces composed of groups of victims who share experiences, based on the fact that victims demonstrate the ability to learn from peers, hence from a social network. https://doi.org/10.17561/tahrj.v25.9294 julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 13 for example, blogs for victims to communicate anonymously and to schedule weekly meetings, where victims can freely participate, may promote the sharing of experiences and strategies undertaken. this not only contributes to the legal empowerment of victims but might also trigger groups that may later participate in the policy process. legal organizations can also contribute to the participation of victims in the policy process by fostering rights awareness. as such, toronto has created a witness and victims assistance program and uses “maquettes” to train victims before mediation, hearings, or trials. with the “maquettes” providers recreate the real set-up, representing the physical space and the different actors and their functions that will be present during the actual event (interview with service provider canada, 2014). also, rotterdam, sydney, lima, madrid, delhi, are examples of cities that have released apps that are used by victims to report the location where they have been subject to sexual discrimination.6 in sum, norms have introduced a variety of forms of democratic participation, yet there are factors that need to be present for people to utilize these entitlements. this study conveys that the lack of exercise of the right to democratic participation is directly linked to reduced rights awareness and the need to increase the number of effective policies to enhance rights awareness in an inclusive manner (that is, in view of the characteristics of different individuals). this is shown by the empirical evidence that expresses a lack of understanding and participation of victims of domestic violence during their legal procedure. additionally, this study supports that even when victims do not participate in the decision-making process at an organizational level, they do participate in the decision-making process of peers. victims share, amongst themselves, information about their rights and about the legal organizations available to claim for rights. this result gives hints to believe that victims, with time, may become part of bottom-up movements, and through them, enforce their right to democratic participation making use of the new channels available in the norms. however, as of now, it is worth highlighting the need for the judicial system in collaboration with the executive and legislative branches, and the third sector, in implementing policies to enhance the rights awareness of those who have obtained access to justice and those in the search for justice. 5. concluding remarks democratic participation is an outcome of individuals who are legally empowered. legally empowered people are assumed to increase their democratic participation when knowing the alternatives available to claim rights (bruce et al., 2007). this may eventually increase their chances to participate in bottom-up movements and engage in policy design. appropriate mechanisms to enhance rights awareness are essential to contribute to the participation of the person who is facing the legal procedure, and to the social network of that person. 6 see for example, https://www.plan.org.au/freetobe, https://mbomediawijs.nl/mediawijsheid-lessen/ straatintimidatie/. https://doi.org/10.17561/tahrj.v25.9294 https://www.plan.org.au/freetobe https://mbomediawijs.nl/mediawijsheid-lessen/straatintimidatie/ https://mbomediawijs.nl/mediawijsheid-lessen/straatintimidatie/ access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 14 the expansion of knowledge through the transmission of information loses its frontiers and this can be fostered with the implementation of spaces where people can meet. legal organizations are important tools by which to make people aware of their rights by implementing proper communicational strategies. they have the means to promote rights awareness campaigns and the power to steer organizational cooperation. therefore, legal organizations play a key role since they have the capacity to transfer information in an accurate manner to those who have obtained access to justice. legal organizations act as bridges for the norms and could be viewed as access points to gestate democratic participation by implementing the creation of spaces where people can gather and share information, experiences, and initiatives. hence, even when there are recent norms to participate in the policy process, these norms remain largely unknown to and are not used by victims of domestic violence. however, victims of domestic violence share, amongst themselves, information about their rights and about the legal organizations available to claim for rights. there is a “peer-to-peer legal empowerment.” this peer-to-peer legal empowerment can derive from active democratic participation if public policies are implemented to 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(1999, august 12). refworld. http://www.refworld.org/publisher,cescr,general,,4538838c22,0. html. general secretariat organization of american states. (2007). access to justice for women victims of violence in the americas (oea/ser.l/v/ii. doc. 68). organización de los estados americanos. comisión interamericana de derechos humanos. graham r gibbs. (2013, january 18). how to do a research interview. youtube. http:// www.youtube.com/watch?v=9t-_hyjakww&feature=youtube_gdata_player. gramatikov, m., & porter, r. b. (2010). yes, i can: subjective legal empowerment. tilburg university, 46. jablkowski, r. l. (2007). participación y ciudadanía: implicaciones psicológicas en los procesos de participación. democracia participativa y desarrollo humano, 2007, isbn 978-84-9849-077-0, págs. 57-75, 57–75. https://dialnet.unirioja.es/servlet/ articulo?codigo=2502089. krstic, i. (1997). affirmative action in the united states and the european union: comparison and analysis. facta universitatis, series: law and politics, 1(7), 825–843. la nación. (2015, february 8). educación, gran ausente de las campañas presidenciales. http://www.lanacion.com.ar/1815505-educacion-gran-ausente-de-las-campanaspresidenciales. ley de protección integral para prevenir, sancionar y erradicar la violencia contra las mujeres en los ámbitos en que desarrollen sus relaciones interpersonales (2009). http://www.infojus.gov.ar/legislacion/ley-nacional-26485-ley_proteccion_ integral_para.htm?2. ley orgánica de los partidos político, pub. l. no. 23.298 (1985). http://infoleg.mecon. gov.ar/infoleginternet/anexos/20000-24999/23893/texact.htm. lorenzetti, r. (2008). acceso a la justicia de los sectores vulnerables. in defensa pública: garantía de acceso a la justicia (pp. 61–74). la ley. macdonald, roderick a. (2010). access to civil justice. in the oxford handbook of empirical legal research (pp. 492–521). oxford university press. marotta, j. (2017). access to justice and legal empowerment of victims of domestic violence through legal organisations in the city of buenos aires: a qualitative empirical legal study [maastricht university / united nations university]. www. merit.unu.edu/training/theses/marotta_julieta.pdf. marotta, j. (2018, april 4). access to justice: a driver for the sustainable development goals. maastricht university. https://www.maastrichtuniversity.nl/blog/2018/04/ access-justice-driver-sustainable-development-goals-0. medina, g. (2009). el valor de las decisiones judiciales para evitar la violencia contra la mujer. jurisprudencia de la corte interamericana de derechos humanos y argentina sobre derechos humanos de las mujeres. la ley, dfyp 2009(septiembre), 161. https://doi.org/10.17561/tahrj.v25.9294 http://www.refworld.org/publisher,cescr,general,,4538838c22,0.html. http://www.refworld.org/publisher,cescr,general,,4538838c22,0.html. http://www.youtube.com/watch?v=9t-_hyjakww&feature=youtube_gdata_player. http://www.youtube.com/watch?v=9t-_hyjakww&feature=youtube_gdata_player. https://dialnet.unirioja.es/servlet/articulo?codigo=2502089. https://dialnet.unirioja.es/servlet/articulo?codigo=2502089. http://www.lanacion.com.ar/1815505-educacion-gran-ausente-de-las-campanas-presidenciales. http://www.lanacion.com.ar/1815505-educacion-gran-ausente-de-las-campanas-presidenciales. http://www.infojus.gov.ar/legislacion/ley-nacional-26485-ley_proteccion_integral_para.htm?2. http://www.infojus.gov.ar/legislacion/ley-nacional-26485-ley_proteccion_integral_para.htm?2. http://infoleg.mecon.gov.ar/infoleginternet/anexos/20000-24999/23893/texact.htm. http://infoleg.mecon.gov.ar/infoleginternet/anexos/20000-24999/23893/texact.htm. www.merit.unu.edu/training/theses/marotta_julieta.pdf www.merit.unu.edu/training/theses/marotta_julieta.pdf https://www.maastrichtuniversity.nl/blog/2018/04/access-justice-driver-sustainable-development-goals-0. https://www.maastrichtuniversity.nl/blog/2018/04/access-justice-driver-sustainable-development-goals-0. access to justice and the right to democratic participation of victims of domestic violence. from norms to empirics the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 16 medina, g., yuba, g., & gonzález magaña, i. (2013). violencia de género y violencia doméstica (1st ed.). rubinzal culzoni editores. ovd—oficina de violencia domestica. (n.d.). retrieved june 25, 2014, from http://www. csjn.gov.ar/ovd/. quiroga lavié, h. (1996). constitución de la ciudad autónoma de buenos aires comentada. rubinzal culzoni editores. rubin, h. j., & rubin, i. s. (2012). qualitative interviewing: the art of hearing data. sage publications. the treaty of lisbon | fact sheets on the european union | european parliament. (2024, march 31). https://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-oflisbon. van de meene, i., & van rooij, b. (2008). access to justice and legal empowerment. making the poor central in legal development co-operation. leiden university press. http://books.google.nl/books?id=u_u84fkfbbqc. world suffrage timeline. (n.d.). retrieved november 4, 2024, from https://nzhistory.govt. nz/politics/womens-suffrage/world-suffrage-timeline. yin, r. k. (2009). case study research design and methods (fourth ediction). sage publications, inc. received: 7th november 2024 accepted:10th january 2025 https://doi.org/10.17561/tahrj.v25.9294 http://www.csjn.gov.ar/ovd/. http://www.csjn.gov.ar/ovd/. https://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon. https://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon. http://books.google.nl/books?id=u_u84fkfbbqc. https://nzhistory.govt.nz/politics/womens-suffrage/world-suffrage-timeline. https://nzhistory.govt.nz/politics/womens-suffrage/world-suffrage-timeline. julieta marotta the age of human rights journal, 25 (december 2025), e9294 issn: 2340-9592 doi: 10.17561/tahrj.v25.9294 17 annex 1. characteristics of the sample gender 53 women 1 man age between 17 – 69 years old7 majority concentrated between 22 – 47 years old income employed ≥ 65% retired or seasonal job ≥ 5% without an income ≤ 30% nationality argentinean = 84% border countries = 16% social context (1 or more) 98% education primary incomplete ≥ 6%8 primary complete ≥ 12% high school incomplete ≥ 14% high school complete ≥ 20% tertiary education incomplete ≥ 10% tertiary education complete ≥ 10% university incomplete ≥ 16% university complete ≥ 8% children 80%9 multiple problems 50% 1st: economic problems (for example, employment, debts and credits, and housing) 2nd: physical, psychological, and/or social problems 7 the sample can be divided as follows: three victims are below 20 years of age (17-represented by her mother age 39-, 18, and 19). thirteen victims are in their twenties (22 two, 23 two, 24, 25, 26 two, 28 two, 29 three). thirteen victims are in their thirties (30 two, 31, 32 three, 36 two, 37, 38 two, and 39 two). twelve victims are in their forties (40, 41, 42, 43 four, 44, 45, 46, 47, 49). five victims are in their fifties (50, 52, 55, 57, and 59). two victims are in their sixties (68 and 69). six did not answer to the question. 8 the sample can be divided as follows: unfinished primary education ≥ 6%; completed primary education ≥ 12%; unfinished secondary education ≥ 14%; finished secondary education ≥ 20%; unfinished tertiary education ≥ 10%; finished tertiary education ≥ 10%; unfinished university education ≥ 16%; finished university education ≥ 8%. 9 the sample can be divided as follows: 27% have 1 child ≤ 57% have 2 children, 8% have 3 children, ≤ 3% have 5.3% have 7, and 3% have 9 children. https://doi.org/10.17561/tahrj.v25.9294 access to justice and the right to democratic participation of victims of domestic violence. from 1. introduction 2. methodology 3. the right to access to justice and to democratic participation 4. the way victims of domestic violence who obtained access to justice exercise their right to dem 5. concluding remarks reference general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 1 general data protection regulation, right to be forgotten, blockchain technology and human rights oscar celador angón1 abstract: the aim of this paper is to offer some reflections on the role that new technologies can play in the field of human rights, and specially from the point of view of the general data protection regulation and blockchain technology. the european union general data protection regulation of 2016 has modified the regulatory framework in key aspects for human rights, such as the consent of the individuals affected by the processing of their data, the right to data portability, or the right to be forgotten. in line with this approach, the first part of the study focuses especially on the regulation of the right to be forgotten and the rights to privacy and respect for privacy. in the second part of my study, the paper analyses the role that blockchain technology can play in guaranteeing and protecting human rights, as well as in the implementation of the sustainable development goals. keywords: general data protection regulation, right to be forgotten, blockchain technology, sustainable development goals, human rights. summary: 1. introduction. 2. the general data protection regulation. 3. right to erasure (right to be forgotten). 3. 1. court of justice of the european union case law. 3. 1. 1. search engine responsibilities. 3. 1. 2. requirements for removing links to websites containing personal data. 3. 1. 3. geographical scope of link removal. 3. 1. 4. image search results. 3. 2. european court of human rights case law. 4. blockchain technology and anonymity. 4. 1. blockchain, gdpr and right to erasure. 4. 2. blockchain and sustainable development goals. 4. 3. blockchain and human rights 5. conclusions. 1. introduction law is defined as a tool at the service of society, either to facilitate its transformation or to satisfy its needs. technology plays a similar role to law, but the difference is that law is a reflection of the wishes of the majority of society, whose representatives make the laws, while technology is created by operators who play by the rules of the market. the tension between technological evolution and the guarantee of human rights has been constant in the history of humanity. technological advances have improved the quality of life of human beings in many areas, but their use in certain contexts, such as warfare, has led to the death of millions of people in cruel wars. in other words, while technological evolution is indispensable for eradicating hunger or poverty, it has also allowed human rights violations to become increasingly effective and harmful. the origin of the problem is not in the technology itself, but in the use that human beings make of it. 1 universidad carlos iii de madrid (oscar.celador@uc3m.es). https://doi.org/10.17561/tahrj.v23.8702 mailto:oscar.celador@uc3m.es general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 2 technology can affect the exercise and guarantee of human rights, depending on how it is used. the internet is probably the best example of how technology can enhance the exercise of human rights, and at the same time seriously harm them. the democratisation of internet access allows ideological pluralism to be present in digital society, which has positive consequences for the exercise of human rights. however, the exercise of freedom of expression and press may affect the rights to honour, image or privacy, or may have a negative impact on national security, public safety or the rights and freedoms of others. the aim of this paper is to offer some reflections on the role that new technologies can play in the field of human rights, and we will pay special attention to the general data protection regulation and blockchain technology (bct). european union general data protection regulation2 has replaced the previous data protection directive of 1995, and has modified the regulatory framework in key aspects for human rights, such as the consent of the individuals affected by the processing of their data, the right to data portability, or the right to be forgotten. in this part of our study we will focus especially on the regulation of the right to be forgotten, as the exercise of this right is very relevant from a human rights perspective, given that it has consequences for numerous rights, including the freedoms of expression and information, and the rights to privacy and respect for intimacy. in the second part of our study, we will analyse the role that bct can play in guaranteeing and protecting human rights. btc can play an important role in this context, as it is a technology that theoretically offers a high level of security and protects personal data. btc has the advantage of guaranteeing the anonymity of personal data, as authenticity is not verified by a third party but by a computer network, but at the same time this technology can facilitate the commission of crimes, due to the anonymity of the operators and the difficulty of tracing their transactions. therefore, and always from the perspective of the european union data protection regulation, we will first explain how the right to be forgotten is protected, as well as the role played by the court of justice of the european union and the european court of human rights in such protection. and secondly, we will study the role of the bct in the protection of human rights, and therefore its potential impact on the right to be forgotten, since the main characteristic of this technology is that its data chain cannot be altered to ensure their security and reliability in data transactions, so that the right to be forgotten cannot be exercised when this technology is present. this will allow us to offer some final reflections on the role that the btc can play in guaranteeing and protecting human rights. 2. the general data protection regulation the european union general data protection regulation (gdpr) was adopted on 14 april 2016 and became enforceable on 25 may 2018, replacing directive 95/46/ec. 2 regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation). eli: http://data.europa. eu/eli/reg/2016/679/oj (access 22/2/2024). https://doi.org/10.17561/tahrj.v23.8702 http://data.europa.eu/eli/reg/2016/679/oj http://data.europa.eu/eli/reg/2016/679/oj oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 3 the main purpose of the gdpr is to protect natural persons with regard to the processing of their personal data and the free movement of such data. gdpr has to be interpreted according with the charter of fundamental rights of the european union, article 8 of which provides that: “everyone has the right to the protection of personal data concerning him or her. 2. such data must be processed fairly for specified purposes and on the basis of the consent of the data subject or on another legitimate basis laid down by law. everyone has the right of access to data which has been collected concerning him or her and the right to have it rectified. 3. compliance with these rules shall be subject to control by an independent authority”. however, data protection is not an unlimited right, as article 52 of the charter states that the rights protected in the charter may be limited by law, provided that their essential content is respected, and when the limitations are necessary and genuinely meet objectives of general interest recognised by the union or the need to protect the rights and freedoms of others (consejo económico y social, 2017) in the following lines, i will refer briefly and in a non-exhaustive manner to the main new features of the gdpr, insofar as they may affect the exercise of human rights. firstly, one of the main new features of the gdpr is that compliance does not refer to european countries, but to those that offer goods and services in the european union regardless of whether they are european. individuals and companies operating in the european union will be responsible for the processing of personal data, will have to comply with a number of rules related to the security of data processing and the appointment of a data protection officer, and may be subject to very serious sanctions in the event of data protection breaches. gdpr is very clear in stating that “this regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the union, regardless of whether the processing takes place in the union or not (art. 3). in consequence, gdpr standardised member states’ regulations, because directive 95/46/ec allowed states to adopt a regulatory framework that was sometimes different, since it granted a high margin of appreciation to the states. the main consequence of previous regulation was that many non-european companies established themselves in those countries with lighter legislation in the field of personal data processing and marketing (sancho lópez, 2018). gdpr has organised data traffic between the european union and the united states, given that us regulations are lighter and european protection standards are higher, so that, regardless of their nationality, all companies that operate in the european union and wish to interact with european citizens must comply with european regulations (fernández, 2016). in case of personal data protection conflicts, the previous regulation forced the parties in many cases to litigate in us courts, since the large international companies that trade with personal data had their headquarters there, as us regulation is very permissive in this area (sancho lópez, 2018, p. 17). https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 4 secondly, in order to improve users trust, data should be processed in a way that ensures adequate security and confidentiality of personal data, for which data processors may be required to establish certification mechanisms and data protection seals and marks (gdpr art. 42, recitals 39 and 100). thirdly, the rules on consent have been amended, so that for consent to be valid a number of requirements must be met, and “the controller must be able to demonstrate that the data subject has consented to the processing of his or her personal data [...] the request for consent shall be presented in a way that is clearly distinguishable from other matters, in an intelligible and easily accessible form, using clear and plain language” (gdpr, art. 7.1, 2). the data controller can only process data when the data subject consents to the processing of his or her data freely, having received all the information regarding both the processing of his or her data and the consequences of consenting to the processing. finally, the data controller must also be able to prove that the data subject consented to the processing of his or her data. (cardó, 2018). the data subject has the right to withdraw or modify his or her consent at any time during the processing of his or her data, for which an accessible and simple procedure for consent or withdrawal of consent must be available (álvarez, 2018). to this end, gdpr requires data processors to seek the specific, informed, unambiguous and explicit consent of their users. the basic requirements for the effectiveness of a valid legal consent are defined in article 7 and specified further in recital 32 of the gdpr. in concrete: “consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. this could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. silence, pre-ticked boxes or inactivity should not therefore constitute consent. consent should cover all processing activities carried out for the same purpose or purposes. when the processing has multiple purposes, consent should be given for all of them. if the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided”. in this context, it is important to note that, in accordance with article 6 of the gdpr, consent to the processing of your personal data for one or more specified purposes, although particularly relevant, is for practical purposes only one of the six cases in which data processing is lawful. likewise, “consent can only be an appropriate lawful basis if a data subject is offered control and is offered a genuine choice with regard to accepting or declining the terms offered or declining them without detriment. when asking for consent, a controller has the duty to assess whether it will meet all the requirements to obtain valid consent. if obtained in full compliance with the gdpr, consent is a tool that gives data subjects control over whether or not personal data concerning them will be processed. if https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 5 not, the data subject’s control becomes illusory and consent will be an invalid basis for processing, rendering the processing activity unlawful” (european data protection board, 2020, p. 5). fourthly, gdpr protects the right to portability, so individuals can ask companies to provide them all the personal data they have in storage (gdpr, article 14. 2. c). the right to data portability is defined as the right of the data subject, on the one hand, to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided; and on the other hand, as the right to have the personal data transmitted directly from one controller to another, where technically feasible (gdpr, article 20.1, 2). the right to data portability is not unlimited, and must be exercised in compliance with the tasks carried out in the public interest or in the exercise of public powers vested in the controller, and in any case may not adversely affect the rights and freedoms of third parties. finally, article 17 gdpr expressly recognises the right to be forgotten. prior to the adoption of the gdpr, the court of justice of the european union interpreted directive 95/46/ec in such a way as to guarantee the right to be forgotten (mieres, 2014). this is a very relevant right from a human rights perspective, as it affects, among others, the rights to freedom of expression, information, privacy and image. the gdpr opts for an open formulation of the right to be forgotten, due to the difficulty of offering closed solutions in a context in which it is necessary to analyse the circumstances of each specific case. 3. right to erasure (right to be forgotten) the global nature of the internet and social networks generates a multiplier effect, regardless of the intentions of their operators, which can have very negative consequences on the image of individuals, as well as in their right to privacy. the directive 95/46/ec was adopted at a historical moment when the internet was in its infancy, hence the law did not adequately regulate certain matters related to the expansion of the internet, such as the protection of personal data on the web, the use of search engines, or the use of the internet and the protection of privacy (guichot, 2019). the recognition of the right to be forgotten in the gdpr, regarless of the fact that this right had already been recognised by the court of justice of the european union in its interpretation of directive 95/46/ec, is a clear message to search engines and data controllers. the exercise of the right to be forgotten depends on which data subject has requested deletion, as well as on whether the data they want to delete are (or are not) necessary for the purposes for which they were collected (fernández, 2016, p. 400). gdpr guarantees the right to be forgotten as an autonomous right, according to the following formula: “1.the data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 6 the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; (b) the data subject withdraws consent on which the processing is based according to point (a) of article 6(1), or point (a) of article 9(2), and where there is no other legal ground for the processing; (c) the data subject objects to the processing pursuant to article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to article 21(2); (d) the personal data have been unlawfully processed; (e) the personal data have to be erased for compliance with a legal obligation in union or member state law to which the controller is subject; (f) the personal data have been collected in relation to the offer of information society services referred to in article 8(1)” (article 17.1). as guichot has pointed out, “it is a regulation that encompasses the “old” right of cancellation and the “new” right to be forgotten, with the peculiarity in the latter that universal access to the personal data of third parties is possible because they are published on the web, and on which the precept seems to point to the obligation of publishers to prevent indexing in these cases through the corresponding technical measures” (guichot, 2019, p. 80). in the words of zárate, “it is a right to cancel personal data, which confirms that the title “right to be forgotten” is in reality a right consisting of the claim to forget or be forgotten, so that the “right to be forgotten” should not be considered as anything more than a fancy term to qualify a right to cancellation, rectification or opposition” (zárate, 2013, p. 3). the right to be forgotten may be refused in certain cases, and in particular: to guarantee the right to freedom of expression and information; for compliance with a legal obligation requiring processing under european union or member state law to which the controller is subject; in certain situations, to protect the public interest in the area of public health; for archival purposes in contexts of public interest, or for scientific or historical research purposes or for statistical purposes; and finally for the establishment, exercise or defence of legal claims (article 17. 3). the above-mentioned cases are very generic, and aim to protect the public interest in certain contexts (health, judicial, scientific or historical research), as well as certain fundamental rights, such as the freedoms of expression and information, the content of which would be emptied if the right to be forgotten were unlimited. the formulation of the right to be forgotten is very generic, due to the relevance of the rights involved in this context, which gives the courts a high role in determining the content of this right (soriano, 2018). i will now refer to the decisions of the court of justice of the european union and the european court of human rights, in order to understand the content of the right to be forgotten, especially when this right conflicts with the right to access information, or to protect the public interest in the above contexts. in this regard, it is important to bear in mind that we do not intend to analyse all the decisions of the courts referred to, as this would go beyond the scope of this paper, but only to explain their main decisions related to the right to be forgotten. https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 7 3. 1. court of justice of the european union case law 3. 1. 1. search engine responsibilities prior to the adoption of gdpr, the court of justice of the european union (cjeu) has ruled on this issue in google spain, s.l. and google inc. v agencia española de protección de datos (aepd) and mario costeja gonzález3. this is a landmark court decision, which was adopted in the context of directive 95/46, in which the court defined for the first time the role of search engines in relation to the right to be forgotten (article 29 data protection working party, 2014) (torres manrique, 2018) (aguinaga, 2022) (buisán, 2014) (boix, 2015). mr costeja gonzález complaint against a spanish newspaper (la vanguardia), and against google spain and google inc. the complaint was based on the fact that, when an internet user entered mr costeja gonzález’s name in the search engine of the google group, he would obtain links to two pages of la vanguardia’s newspaper, on which an announcement mentioning mr costeja gonzález’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. as regards the activity of search engines as providers of content in relation to directive 95/46, the spanish “audiencia nacional” asked the court of justice the following question: “in relation to the activity of [google search], as a provider of content, consisting in locating information published or included on the net by third parties, indexing it automatically, storing it temporarily and finally making it available to internet users according to a particular order of preference, when that information contains personal data of third parties: must an activity like the one described be interpreted as falling within the concept of “processing of … data” used in article 2(b) of directive 95/46?” in addition, the court had to establish whether the processing of data by search engines is subject to eu data protection rules, as well as whether individuals have the right to request that links to their personal data do not appear in the results of an internet search carried out under their name. with regard to the definitions of “processing of personal data” and “controller”, provided by article 2(b) and (d) of directive 95/46/ec, the court stated that “first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of article 2(d)” (paragraph 100). 3 ecli identifier: ecli:eu:c:2014:317 https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 8 the court differentiated between the role of the search engine and that of the website on which the information is hosted. according to the court, the operator of the search engine has to remove the information from the list of results -obtained after a search on the basis of a person’s name links to web pagespublished by third parties and containing information relating to that person, regardless of whether the website on which the information is hosted does not delete the information, and regardless of whether the publication on the website is lawful or unlawful. regarding the processing of personal, as recio has pointed out, “it is not until the user carries out the search, using the name of the person as criteria, that the processing of personal data takes place, without the search manager again determining the purposes of the processing, since it provides a tool, the search engine, which will be used by the user to search for content on the basis of the search parameters that he decides. and in that decision, relating to the use of the search engine and the search parameters, the search engine does not participate, so it must be excluded from the concept of data controller because it does not determine one of the essential elements that are key to considering it as such” (recio, 2020, p. 88). article 9 of directive 95/46 established that member states shall provide for exemptions or for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression. the only exception in this context would be where the person concerned is a public person, so that the interference would be justified precisely by the public’s interest in accessing the information. in consequence, the court made a balance between the right to access information and the right of individuals not to be able to find personal information, and established that the right of the individual to request that his or her personal information not be made available to the general public by inclusion in a list of search results overrides, on the one hand, the economic interest of the search engine operator and, on the other hand, the public’s interest in accessing the information in a search on that person’s name. therefore, european citizens have the right to request search engines to remove information related to their personal data, and if the complaint is well-founded the search engine operator must comply with the request. however, while the court made it clear that search engines must remove certain information from the list of results in specific cases, the media (in this case the spanish newspaper) is not obliged to remove the information it offers to the public. according to the court’s construction, the right to be forgotten means that users have the right to have search engines not display some of their results, when these may be qualified as “inadequate, irrelevant or no longer relevant, or excessive”. the right to be forgotten, while allowing information to be removed or hidden from search engines, does not include the right to have personal data deleted from a website. consequently, information that may affect the privacy or image of individuals will still be accessible to the public, but it will be more difficult to access as it will not be accessible by search engines. https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 9 the right to be forgotten collides with the right to access information, so the court limits the exercise of the right to be forgotten in the case of information relevant to the public interest or concerning politicians or public figures. this position has raised a few questions connected to the definition of the term “public interest”, such as when information ceases to be of public interest, what parameters search engine operators should use to decide when to remove or modify search results, or what the public’s interest in accessing information is. the right to be forgotten can be exercised autonomously, either against the original source of information or against the search engine. in the event that search engines do not accept the request, it is possible to appeal to the national agency responsible (in the case of spain, the “national data protection agency”); and finally, the decision of the national agency can be appealed before the courts. 3. 1. 2. requirements for removing links to websites containing personal data in gc and others v commission nationale de l’informatique et des libertés4, the plaintiffs requested google to remove various links to web pages published by third parties from the list of results obtained by the search engine operated by google, following a search carried out on the basis of their names. google refused to remove those links, and the plaintiffs therefore appealed to courts. the french conseil d’état refered several questions to the court of justice for a preliminary ruling. among the questions asked, the following are particularly interesting: does the prohibition imposed on the operator of a search engine from processing personal data, oblige it systematically to accept requests for removal relating to links leading to websites which process such data?; where the links the deletion of which is requested lead to the processing of personal data solely for journalistic purposes or for the purposes of artistic or literary expression, may the operator of a search engine refuse to accept that request?; and if the applicant proves that such data is incomplete, inaccurate or out of date, is the operator of a search engine obliged to accept the corresponding withdrawal request? the activity of search engines and internet publishers is technically different, as publishers make information available to third parties on a website, while search engines facilitate access to websites by enhancing communication and the transfer of information to their customers. the court noted that search engine operators are subject to directive 95/46, as they process personal data and the operator is the data controller. the activity of search engines has direct consequences on the fundamental rights to respect for private life and the protection of personal data, and their activity must therefore respect the limits and guarantees indicated in directive 95/46. article 8(1) and (5) of directive 95/46 prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sex life. however, it removes this prohibition in the following 4 ecli identifier: c:2019:773 https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 10 cases: if the data subject has given his or her explicit consent to such processing; the processing is necessary in order to comply with the specific employment law obligations and rights of the controller; the processing is necessary in order to safeguard the vital interests of the data subject or of another natural or legal person who is incapable of giving his or her consent; processing is carried out in the course of its legitimate activities and with appropriate safeguards by a foundation, an association or any other non-profitmaking body whose purpose is political, philosophical, religious or trade union, provided that it relates exclusively to its members; processing relates to data which the data subject has manifestly made public or is necessary for the establishment, exercise or defence of a right in legal proceedings; and processing of data relating to offences, criminal convictions or security measures. the court ruled that when search engine operators are required to remove links to websites where the personal data concerned are published, they must, on a case-by-case basis, examine whether the inclusion of such a link in the list of results obtained after a search based on the name of the data subject is strictly necessary to protect the freedom of information of internet users. with regard to information relating to legal proceedings, the court noted that search engines must remove links to websites that provide information from “an earlier stage of the legal proceedings in question and, in view of the development of those proceedings, are no longer relevant to the current situation” (para. 80). in such cases, search engine operators must strike a balance between the right to privacy of the searched person and the right of internet users to obtain information. 3. 1. 3. geographical scope of link removal in google llc v commission nationale de l’informatique et des libertés5, the court ruled on the geographic scope of search engine link removal ordered under directive 95/46. google’s position was to apply the right to be forgotten exclusively to its french search engine, given that the claim was brought by the french data protection authority. however, the court established that the right to be forgotten, although given the court’s jurisdiction it could not be interpreted worldwide, was enforceable at eu level. in the court’s opinion, “when a search engine operator grants a request for dereferencing pursuant to those provisions, that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the member states, using, where necessary, measures which, while meeting the legal requirements, effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the member states on the basis of a data subject’s name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request” (paragraph 74). additionally, search engine operators must prevent an internet user searching from one member state, on the basis of a data subject’s name, from accessing links or search results that have been 5 ecli identifier: eu:c:2019:772 https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 11 altered in another eu country in order to guarantee the right to be forgotten (samonte, 2019) (pirkova, masséeu, 2019). according to the court, the right to be forgotten is limited to the activity of search engines, as the information that is considered harmful continues to be hosted on the web server, although its visibility is significantly limited even though it may be legitimate information protected by the rights to freedom of expression and information. the right to be forgotten only applies to search engines with domain names associated with eu member states, e.g. google.fr as well as google.es or google.it, but is not enforceable for all other versions of a search engine worldwide. as many non-european countries do not recognise the right to be forgotten. and finally, it is important to bear in mind that search engines can offer information that is removed from their search results in the european union outside their territory, as this is a context in which the court has no jurisdiction. 3. 1. 4. image search results the judgment of the court of justice of 8 december 2022 in tu, re v google llc6 illustrates the court’s position regarding image search results. the court had to make a balance between the rights protected in articles 7 and 8 (the rights to respect for private and family and to protection of person) and those protected in article 11 (the freedom of expression and information) of the charter of fundamental rights of the european union. the plaintiffs had managerial responsibilities in investment firms, and requested google to remove the search results for their names from the search engine, as they claimed they included links to three articles highly critical of their firms’ business model, with images suggesting that they led a life of luxury, and containing inaccurate allegations and defamatory opinions. in addition, the plaintiffs requested the removal of photos of them in the form of thumbnails from the list of results of an image search based on their names. google denied the request, as in their view they were detrimental to their image. search engines do not need consent to provide information, as it would be impossible to obtain such consent a priori for all results, so the process of removing information from search engine results requires those concerned to tell the search engine what information they do not consent to appear in their results. however, the most complex part of the exercise of the right to be forgotten, as pirkova and massé have pointed out, occurs when “a search engine still has to balance the data subject’s fundamental rights and the public’s right to freedom of information, taking into consideration complex criteria such as the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the data subject’s role in public life, and the level of public interest in the information at the time of the removal request” (pirkova, massé, 2019). the court reached three conclusions. first, search engine operators must ensure that the safeguards established by directive 95/46, with the aim of protecting the fundamental 6 case c-460/20, ecli:eu:c:2022:962 https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 12 rights to respect for private life and to the protection of personal data, are effective. second, when search engine operators receive requests to remove links from their results, they must check the extent to which the right of internet users to access information is affected. and third, the gdpr requires that in case of conflict, a balancing of the rights to respect for privacy and personal data protection against freedom of information must be carried out. this requires a case-by-case assessment of: the nature of the information concerned, the sensitivity of the dissemination of the information to the privacy of the data subject, and the public interest in having the information. the court ruled that image search results, regardless of whether they are in the form of previews, may constitute an interference with the rights to protection of privacy and personal data, and that “by retrieving the photographs of natural persons published on the internet and displaying them separately, in the results of an image search, in the form of thumbnails, the operator of a search engine offers a service in which it carries out autonomous processing of personal data which is distinct both from that of the publisher of the internet page from which the photographs are taken and from that, for which the operator is also responsible, of referencing that page” (paragraph 103). in other words, the presentation of images in the form of previews may entail an additional interference with the rights to respect for privacy and to the protection of personal data, since it allows internet users to access information that is complementary and autonomous to the main information. in order to know what is the informative value of photographs, the court pointed out that it is necessary to differentiate between those that are displayed as a preview in a search engine’s list of results, and therefore out of the context in which they were published on the original web page, and those photographs that are part of the information as they illustrate the article and the opinions expressed therein. therefore, the court has resolved disputes related to image search results using the same criteria as in cases related to the removal of links to websites containing personal data, interpreting that images are part of personal data, and that images do not need specific or different protection from personal data. 3. 2. european court of human rights case law technological progress has allowed the internet and social networks to become huge repositories of information, which can be stored for unlimited time. the storage function can have positive implications for human rights, but it also amplifies the networks’ ability to affect people’s image and privacy. gdpr establishes that freedoms of expression and information can limit the right to be forgotten. these rights are connected to the freedom to communicate beliefs, ideas and opinions. the balance between these rights is very important, as unrestricted exercise of the freedoms of expression and information would convert the right to privacy meaningless. but an unrestricted right to privacy would be equivalent to censorship of https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 13 the freedoms of expression and information. access to information is fundamental in the framework of a democratic and pluralistic society, as access to information is essential for the formation of public opinion. the freedoms of expression and information are complemented by the right to obtain ideas or opinions, but these must respect public order, constitutional principles and the rights and freedoms of others. the european convention on human rights (echr) offers some clues in this respect, when it sets out the limits to freedom of expression and the content of the right to privacy. the echr does not explicitly protect the right to data protection, due to the date of its adoption, but its article 8 protects the right to respect for his private and family life, but this right may be limited in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. article 10 of the echr states that freedom of expression shall include freedom to hold opinions and to receive and impart information and ideas. states may restrict freedom of expression in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the reputation or rights of others. before entering into the study of the decisions of the european court of human rights, it is important to note that, due to the large number of decisions of the court on the freedoms under article 10 echr when they collide with the rights protected by article 8 echr, we will limit our analysis to two of its decisions, in order to describe in a comprehensive way what the court’s position is in this context. in the case of m.l. and w.w. v germany7 the european court of human rights (ecthr) ruled about a german federal court of justice decision, prohibiting three different media from continuing to allow internet users access to documentation concerning the applicants’ conviction for the murder of a famous actor and mentioning their names in full. the plaintiffs requested both that the information with their names be removed from search engines as this facilitated access to the information by internet users, and that the media publish and retain the information with their names on their websites. as a starting point, the court noted the importance of the press in democratic opinion-forming by making available to the public old news that had been kept in its archives. the court ruled in favour of freedom of information, agreeing with the german federal court of justice. in this particular case, the court had to decide between the public’s right to be informed about past events and the right to anonymity of a person who had been the subject of an internet publication. the court recalled its doctrine, which has repeatedly established that the way in which news is treated, as well as the information it contains, must be decided by journalists in accordance with their profession’s ethical and deontological regulations. 7 application nos. 60798/10 and 65599/10, 2018 https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 14 in this particular case, the inclusion of individualised information about the protagonists of the news was relevant, as it was related to a criminal trial with a high impact in the media. this information contributed to forming public opinion, and the public had the right to know the details of the news, especially the conduct of their criminal trial and their requests for the reopening of that trial. in fact, the applicants had contacted the media when they requested to reopen the criminal proceedings, so that their right to anonymity had thus been very limited. finally, the news for which amendment was sought only described the proceedings and the court decision in a factual manner, and could not be described as denigrating or damaging to the plaintiffs’ reputation. the court therefore held that the plaintiffs’ right to privacy had not been infringed. the european court of human rights has ruled in the case of hurbain v belgium8 that a rehabilitated offender has a right to be forgotten. a civil judgment ordered the publisher of the belgian daily newspaper “le soir” to anonymise the archived electronic version of an article mentioning the full name of g., the driver responsible for a fatal road accident in 1994, on the basis of the right to be forgotten. the court ruled from the perspective of the right to be forgotten under article 17 of the gdpr, and in particular on the right to obtain from the controller the erasure of personal data that are no longer necessary for the purposes for which they were collected or otherwise processed, as well as the connection of the information concerned with the exercise of the right to freedom of expression and information. the judicial debate did not focus on the lawfulness of the article when it was first published, but on the fact that it was available on the internet and on the possibility of accessing the article long after the events. the court ruled in favour of the right to be forgotten, and established that: “the domestic courts weighed in the balance g.’s right to respect for his private life and the applicant’s right to freedom of expression, in accordance with the criteria established in its case-law. specifically, the court of appeal attached particular weight to the damage sustained by g. on account of the online publication of the article in question, having regard in particular to the passage of time since the publication of the original article and to the fact that the anonymisation of the article on the website of le soir left the archives themselves intact and constituted the most effective measure amongst those that could have been taken in the present case, without interfering disproportionately with the applicant’s freedom of expression. in the court’s view, the reasons given by the domestic courts were relevant and sufficient […] the court wishes to make it clear that its finding cannot be interpreted as entailing an obligation for the media to check their archives on a systematic and permanent basis. without prejudice to their duty to respect private life at the time of the initial publication of an article, when it comes to archiving the article they 8 application no. 57292/16, 2021 https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 15 are required to carry out a check, and thus weigh the rights at stake, only if they receive an express request to that effect” (paragraphs 132, 135). the solution proposed by the belgian courts was to anonymise the article published on le soir’s website by replacing g.’s first name and surname with the letter x. with this formula, it was not necessary to remove the article from the newspaper’s archives, only to anonymise the electronic version, and this solution allows the newspaper to guarantee the integrity of the original digital version. from this perspective, the interference with the newspaper’s right to freedom of expression was minimal and proportional to the exercise of the right to be forgotten. the european court has resolved the conflicts between the freedoms of expression and information and the right to be forgotten, on the one hand, by differentiating between the role of search engines and the media; on the other hand, by taking into account the peculiarities of each case, and trying not to sacrifice any of the rights at stake unless there is no other possibility; and finally, the court is not in favour of modifying digital files with personal data, when they do not unjustifiably affect the image and reputation of individuals, as this would mean censoring freedom of information and access to information. 4. blockchain technology and anonymity blockchain is based on a chain that chronologically orders a series of transactions that are recorded identically in a computer network. the blocks that make up the chain are connected, each block incorporates the information of the previous block, in accordance with a protection system that prevents the deletion or alteration of the data chain. therefore, users participating in the blockchain add their information creating an irreversible chain (g’sell, martin-bariteau, 2022, p. 6). as mhlanga has noted, “blockchains are a type of digital ledger that cannot be altered without leaving clear evidence of having been altered. since these digital ledgers are deployed in a distributed fashion, there is typically no central repository or authority, such as a bank, corporation, or government. this is due to the lack of a necessity for a centralized repository and authority” (mhlanga, 2023, p. 2). the philosophy of bct is that stored information is protected by a peer-to-peer network, which eliminates the risks of centralised databases. the transactions with bct are carried out between computers or nodes in peer to peer mode, the user’s public profile is validated through a series of algorithms, and once the validation is completed, a new block is created and added to the existing ones, creating an unalterable and permanent chain that can only be modified through new transactions. blockchain was initially designed to bring security to commercial and financial transactions, especially in the field of cryptocurrencies due to the reliability of this technology and the high level of security it offers, given that it does not use a central server or third parties to verify transactions, as these are encrypted and replicated on all the computers of the network users (bartolomé, lindín, 2018). the main characteristics of the blockchain are: technological security, autonomy of the system, and transparency and anonymity of the operators. https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 16 the system is secure, as the information is not stored physically or digitally in a file, but is stored in computers that verify their relationships using complex algorithms. unlike other systems, blockchain does not use a central authority to manage the information stored in the blockchain, which prevents unwanted third parties or hackers from accessing the information. each blockchain is a unique and independent unit that theoretically cannot be intervened by third parties, making it one of the most secure technologies currently available. this ensures confidence in the process and in the transactions. (bilbao, 2019, p. 4). from the perspective of the right to be forgotten, how can personal data be removed from a blockchain network when a person revokes their consent? the answer to this question is complex, as blockchain technology means that all nodes participating in the blockchain can access all data stored in the chain, so that all parties have the same copy of each transaction. this is the strength of this technology. the blockchain system is autonomous, as the verification processes of the public and private codes of the operators are carried out outside the operators, so that a node reads the information and incorporates it into the blockchain. this model eliminates intermediaries between the parties, through an autonomous and independent model that guarantees anonymity and trust in the blockchain system (weinstein, 2016). and finally, bct is characterised by the transparency and pseudo-anonymity of the operators. each node has a complete copy of the information chain, so that any operator can access the information and know all the transactions that take place in this context. transparency is complemented by the anonymity of the operators, as users can participate and operate on the network without providing personal data. individuals operate using two codes, one public and one private. the public code identifies the person and is known to the rest of the operators, and may not contain any personal data or data related to the operator’s identity; while the private code is known only to each operator and serves to validate operations, signing and/or authorising them. behind the public address of an operator can be an individual, an ngo or a company, thus allowing the operation to be anonymous for all intents and purposes. the same operator can have multiple public codes, and the creation of these codes does not require the use of the operator’s personal information, which guarantees anonymity. 4. 1. blockchain, gdpr and right to erasure gdpr encourages the movement of data within the european union according to two principles. firstly, natural or legal person operating in the european union are responsible for the processing of personal data, so there must be a data controller in charge of guaranteeing users’ rights in the processes. gdpr provides that data controller means: “the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by union or member state law, the controller or the specific criteria for its nomination may be provided for by union or member state law” (article 4). and secondly, users may exercise the right to be forgotten in accordance with certain requirements. https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 17 these principles may be incompatible with blockchain, because this technology is characterised by the anonymity of the operators and the transparency of the process. in other words, the absence of third parties in bct, which a priori is one of its virtues, may be a drawback in the context of the gdpr. likewise, the gdpr sometimes requires the modification or deletion of data to allow the exercise of the right to be forgotten, which is not possible in the case of bct, as it is precisely the difficulty of altering the blockchain that is the key to its security and reliability in data transactions. as pointed out by g’sell and martin-bariteau, “two key features of bct seem to be particularly problematic: the transparency and immutability associated with blockchains. as mentioned above, many blockchain platforms are designed with transparency in mind, so that transactions can be seen by anyone and those making them are eventually identifiable. this presents risks for users and potential liability for platform operators. moreover, the principle of immutability that guarantees the integrity of the blockchain and avoids contradictions runs counter to the rights of accuracy and suppression. in principle, any attempt by a user to delete or overwrite existing data will be detected by others and corrected” (g’sell, martin-bariteau, 2022, p. 33). in the words of mendoza, “despite the obvious benefits, there are some obstacles to compliance with the regulations on the protection of personal data in the blockchain service, linked to the exercise of the so-called arco rights, specifically to the rights of rectification and cancellation of personal data, as well as the determination of the figure of responsible for data processing” (mendoza, 2020, p. 109). gdpr defines a data controller as follows: “the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by union or member state law, the controller or the specific criteria for its nomination may be provided for by union or member state law” (article 4, paragraph 7). in the case of blockchain, it is very difficult to know who the data controller is, especially since blockchain uses a peer-to-peer (p2p) network made up of a set of computers that behave as equals to each other. private companies managing blockchain have the responsibility that gdpr attributes to data controllers. in the case of public companies, according to mena, blockchain users would be co-responsible because they have decided to use the bct, although they cannot modify the information chain, not even when they are responsible for it, but it is not clear who is the data controller for the purposes of the gdpr (mena, 2021). personal data is defined in gdpr as: “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person” (art. 4, paragraph 1). the definition refers to “any information”, so the term “personal data” should be interpreted as broadly as possible. data that are part of https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 18 the blockchain are personal data, even if they are not associated with a person, when such data allow the person to be identified by any means, such as, for example, the ip address (castello, 2021). bct uses data that is considered personal data, both in terms of the public and private code that guarantees access to the information. data on the blockchain is encrypted using a verification system that allows the information to be de-encrypted and accessed. the key question is: how can the right to be forgotten be harmonised with the impossibility to modify the blockchain data chain? the main virtue of the blockchain is that its registry is decentralised, so that there are numerous copies (which cannot be modified) with all the information, in order to guarantee the security of transactions. among the technical solutions that can be adopted for bct to comply with gdpr, it has been proposed not to record personal or private information in the blockchain, but in an autonomous database, so that only the url and the cryptographic hash value of the personal information into the blockchain would be recorded in the blockchain (tanaka, hiroyuki, 2019). with this measure, the rights to rectification and to be forgotten could be exercised, as the information in the external database is alterable but not shared and could be encrypted to protect the information. likewise, the information contained in the blockchain would have no personal or personally identifiable information. another solution proposed in this context has been to hide the block from search results in search engines, so that although the information is still present, it cannot be displayed (castello, 2021). the right of erasure guaranteed by the gdpr can also be exercised through “irreversible anonymisation processes”, which make the data to be erased inaccessible. in the case of personal data, the creation of new records containing the updated information and, consequently, the personal data already rectified has been proposed through the erasure of the previous records containing the information to be rectified (mendoza, 2020, p. 116). another solution proposed to resolve the conflict between the possibility of deleting personal data and the bct is the use of iot devices. (grigera del campillo, 2021). it is therefore necessary for bct to adapt to the gdpr regulation, allowing data to be deleted or modified (guaranteeing the rights of rectification and to be forgotten), as well as identifying a data controller who is responsible for data processing. in order to harmonise the immutable nature of blockchain with the gdpr, g’sell, martin-bariteau have proposed, on the one hand, to add new transactions to the blockchain, so that blocks are not modified or deleted, but the initial information is effectively supplemented; and on the other hand, when blockchains are encrypted, it is possible to destroy the encryption key, which will prevent access to the data (g’sell, martin-bariteau, 2022). in this line, it has been proposed to alter blockchain core elements without denaturing it. a system has been designed in which permissions are granted for a controlling entity to access information (with the ability to identify participants and their activities). this would comply with gdpr but at the cost of losing the full shield on the total anonymity of blockchain users (reform.uk, 2018). https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 19 it is important to note that the eu has shown its interest in bct through different projects, such as the eu blockchain observatory & forum, which is an initiative of the european commission to “accelerate blockchain innovation and the development of the blockchain ecosystem within the eu and thus help consolidate europe’s position as a world leader in this transformative new technology”9; as well as the european blockchain services infrastructure, which has been designed by the european public sector to be interoperable with private sector platforms. the european commission has joined this initiative through the so-called multicountry digital projects, discussed so far with the member states in the framework of the recovery and resilience mechanism, which propose “to develop, deploy and operate a pan-european blockchain-based infrastructure that is green, secure and fully compliant with eu values and legal framework, making the provision of cross-border, national and local public services more efficient and reliable and promoting new business models” (comisión europea, 2021, p. 19). the european commission wants to design sustainable digital infrastructures that are secure and efficient, because it is aware that if the european union wants to lead the digital revolution it needs a pioneering and sustainable digital infrastructure that allows european industry to be competitive, and currently this option requires the use of bct. justice is also one of the targets of the european technological project, as pointed out by the european commission in its “guidelines for the action plan”, where it stated that both artificial intelligence and bct could have a positive impact on e-justice. to this end, it proposes to study the possibilities of blockchain in the context of digital justice, as although “any future development and deployment of this type of technology must take into account the risks and challenges, particularly in relation to data protection and ethics”, this technology could have a positive impact on e-justice, increasing the efficiency of the administration of justice and the confidence of european citizens (european council, 2019, & 30, 31). a final example can be found in regulation (eu) 2023/1114 of 31 may 2023 on markets in crypto-assets adopted by the european union, which has established an innovation-friendly regulatory framework for eu financial services that does not hinder new technologies, including the use of crypto-assets, which is one of the main applications of bct in the financial context (fernández, 2023). it would not make much sense for the eu to bet on a technology that is not viable within the framework of eu regulation. therefore, it seems clear that in the medium term eu regulation and bct have to be compatible, and solutions have to be found that, while guaranteeing the human rights of european citizens, satisfy the interests of all parties involved. 9 vid. https://www.eublockchainforum.eu/ (access 22/2/2024). https://doi.org/10.17561/tahrj.v23.8702 https://www.eublockchainforum.eu/ general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 20 4. 2. blockchain and sustainable development goals (sdgs) the characteristics of blockchain technology, and especially the anonymity of operators, can make it difficult to exercise the right to be forgotten. however, these same characteristics give blockchain technology the capacity to offer trust to consumers, which is why it has many applications in the field of the sustainable development goals (sdgs). (deshmukh, 2020). the main inconvenience of this technology for developing countries is that in order to be effective, it is necessary to invest resources in its development and implementation, and this is sometimes not feasible in poorer countries. in addition to this, blockchain applications are often designed primarily to generate economic benefits for their creators, without taking into account that they can indirectly have a positive impact on developing countries. for this reason, some authors have argued that international human rights organisations, led by the united nations, should assist developing countries in this context, as it would not make sense to design technological applications focused on sdgs implementation that exclude countries with fewer economic and technological resources. (mattila, dwivedi, gauri, ahbab, 2022, pp. 237-8). i will now refer to some examples in order to illustrate the extent to which bct can help to achieve the sdgs. the possibility of knowing precisely the origin of the products we consume refers both to the origin of raw materials and to the working conditions under which the producers of services work. in both cases, sdg 8 decent work and economic growth and sdg 12 responsible consumption and production are protected. economic and technological poverty is connected to the difficulty of accessing banking services, which can be alleviated through blockchain technology, although it is necessary to take in account that technological education and basic technological resources are necessary. the united nations development programme (undp) is a pioneer in this field10, as it allows “unbanked” money transfers, using bct to carry out financial transactions. the only requirements are internet access, a smartphone and the ability to digitally identify one’s identity. this option eliminates the fees of financial intermediaries, and allows banking without having to rely on a banking model that sometimes excludes people without financial resources. blockchain can be very useful in combating financial exclusion, as any tool that allows access to the internet enables individuals to carry out financial transactions through a platform that allows users to operate digitally. in addition, individuals can receive subsidies or income without paying bank fees, and avoid the security problems that are characteristic of the most disadvantaged societies (mhlanga, 2023, p. 5). 10 vid. https://www.undp.org/es (access 22/2/2024). https://doi.org/10.17561/tahrj.v23.8702 https://www.undp.org/es oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 21 cryptocurrencies are very relevant in this context, as many ngos receive donations in this way, and even some organisations, such as unicef, are using cryptocurrencies to make important investments in startups in developing and emerging economies (deshmukh, 2020). the reliability of the blockchain is seen in its success in gaining user confidence in cryptocurrency transactions, which are almost exclusively carried out using this technology. one example of the application of blockchain to sustainable development goals is the use of ethereum cryptocurrencies by the world food programme to purchase food vouchers for syrian refugees (borrero, 2018). sdg 16 proposes the creation of effective, accountable and inclusive institutions at all levels. bct can help reduce corruption in public contracts, which are sometimes used by political leaders to enrich themselves, due to the lack of transparency of this type of public contracts. bct is also very useful for controlling the use to which aid or food resources received by developing countries are used, given that sometimes a large part of this aid is lost in the distribution chain and does not reach its potential recipients. controlling the destination of funds will not only increase the development aid received by the neediest countries, but will also lead to an increase in donations and donors, who sometimes do not want to cooperate with some needy countries, for fear that corruption will take a large part of the aid, or that it will be used to finance anti-democratic political regimes that do not respect human rights (deshmukh, 2020). the transparency and security of bct make it an important ally in the context of environmental stewardship, where the following possibilities have been identified to maximize the benefits of blockchains: controlling greenhouse gas emissions by optimising carbon markets, decarbonising the electricity sector by increasing the percentage of energy generated by renewable sources or energy, or ensuring sustainable water management, especially due to the increase in demand and the increase in cases of permanent drought (bilbao, 2019, p. 16). bct provides relevant information related to the manufacturing chain and logistics, which can affect consumption habits and redirect them towards responsible, sustainable and environmentally friendly choices. among the practical applications in the field of sdgs, some authors highlight the following. in some countries (e.g. thailand), the poor are unidentified, and digital identification has made it possible both to identify the poor and to enroll them in aid programmes. some countries, such as cuba, have implemented a medical data programme that, thanks to the security of bct, allows patients’ medical records to be available in most of the country’s medical institutions; these applications can also be used to protect academic records. the control of energy consumption is central to sdg7 (affordable and clean energy), and with the blockchain, energy expenditure can be securely and transparently controlled in line with the real needs of users. in order to reduce the inequalities, set out in sdg10, unicef has launched its connect project, which is a global blockchainbased platform (https://projectconnect.unicef.org/map) that organises information from each country, and informs its users which schools around the world lack the necessary internet connectivity, as well as the quality of each school’s internet connection. finally, the commonwealth bank of australia has developed a prototype platform to facilitate the protection of environmental ecosystems, so that users can purchase biotokens to https://doi.org/10.17561/tahrj.v23.8702 https://projectconnect.unicef.org/map) general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 22 participate in an efficient blockchain-based marketplace. (mattila, dwivedi, gauri, ahbab, 2022, pp. 237-8). 4. 3. blockchain and human rights bct has many applications that can enhance the protection of human rights, as crumpler has pointed out (crumpler, 2021) in the following contexts: supply chain, voter turnout, digital identity and land rights management. in line with crumpler’s work, he will refer to some of these applications without aiming to be exhaustive, as it is only a question of connecting the virtues of the bct with the guarantee and protection of human rights. the possibility of knowing all the links in supply chains thanks to bct has many practical applications (bager, düdder, hébert, wu, 2022) (deshmukh, 2020). for example, btc enables effective verification of compliance with sustainability criteria, as well as precise knowledge of the origin of materials used in production cycles. btc can also be very useful in eliminating forced labour, especially in the case of vulnerable groups, as it would allow buyers to know the origin of the products they are able to purchase in the market, and to connect this information with the working conditions of the labour force in charge of producing those products. in addition, btc provides users with valuable information that allows them to make their consumption decisions knowing the degree of sustainability of production processes. this process would increase user confidence and allow buyers to put pressure on suppliers when they are not environmentally friendly or sustainable. the quality and quantity of participation in electoral processes can benefit from bct, especially in the context of voter registration or communication with voters. blockchain can promote voter participation, especially for those who do not want to vote face-to-face for fear of reprisals. online voting also has drawbacks, as crumpler pointed out: “blockchain-based systems are also limited in that they cannot provide assurance that votes have not been tampered with before being logged on the blockchain. just as in the supply chain traceability use case, blockchain would only serve to protect ballots once they are submitted to the network and can do nothing to prevent tampering by government authorities or outside actors that occur at other points in the voting process. election security researchers have consistently found that the hardware and software used by online voting systems for submitting, receiving, and counting ballots are highly vulnerable to attacks, even when blockchain is used to store the votes. these vulnerabilities could allow both internal and external actors to carry out large-scale disruption or manipulation for a very low cost” (crumpler, 2021, p. viii). the key to any proposal in this area is to ensure that data cannot be manipulated at any part of the chain, from the time of voting to the announcement of the election results. the identification of individuals has traditionally been a task carried out exclusively by states, which issue an identity document whose fidelity was guaranteed by the state itself (as is the case with passports) according to official national documentation, such as civil registration information. the virtual world is not organised around geographical territories or the nationality of the operators; on the contrary, in the virtual world operators choose their identity or pseudonym according to their own interests. https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 23 in order to control the identity of users, “trusted third parties” have been created, which confirm the identity of users to third parties on the basis of the information they provide. trusted third parties, while having the advantage of facilitating data traffic and anonymity, have the disadvantage that it is not clear what uses the platforms that collect the data can make of them. in fact, in most cases the only way to carry out transactions on the internet is by giving personal information to private platforms, mainly related to address or bank details, which can be stolen by third parties in the virtual world. bct makes it possible to obtain digital identification and to act autonomously and anonymously in data traffic. some groups have difficulties in identifying themselves or lack official documentation, especially refugees and migrants, who could obtain digital identification with the guarantee of international institutions, such as the united nations. digital identification would help to combat human trafficking, especially in the case of vulnerable groups as children and migrants, as these people lack official documentation that adequately guarantees their identity. people without identification are excluded from society and cannot act in legal transactions to satisfy their basic needs, such as buying food, for example. the debate around digital identity focuses on self-sufficient identity (ssi) and the possibility for individuals to self-manage their identity without validation by third parties or entities. the main beneficiaries of the ssi are groups that have difficulties in identifying themselves, such as in the case of refugees, irregular migrants or stateless persons. ssi needs a regulatory framework that guarantees legal certainty, since a vulnerable ssi, with risks to people’s privacy, would generate more harm than benefits (george, chacko, 2023). bct allows people to create an unofficial portable digital identity that can be used, for example, in contexts such as refugee camps to validate medical or educational records. ssi can be validated with humanitarian organisations or ngos, so that relationships can be organised between people without official documentation and refugee camp administrators. the downside of ssi is that, on the one hand, its validity requires mutual trust between the parties, and in case it is to be used for identification to state bodies, a prior regulatory framework is necessary; on the other hand, access to valid and reliable technological resources is essential to be able to obtain a digital id, so users need a smartphone to be able to use ssi technology, or rely on third parties to lend them their smartphones. an excellent example of the applications that bct can have in the medical context can be found in the need to connect people’s identities with the so-called vaccine passport during the covid 19 pandemic. this was an international initiative, thanks to which millions of people were able to travel in compliance with a series of medical criteria (george, chacko, 2023). digital identity has also been used to design specific programmes to eliminate poverty. the connection between the food programmes and the digital identity of their beneficiaries does not require the use of intermediaries to manage the aid. an example of this type of programme is the “via 31 project” in buenos aires, which guarantees access to food to those who have been digitally identified, as this type of project directly connects food providers with people in need, eliminating corruption in the distribution of aid (borrero, 2018). likewise, alternative identification mechanisms such https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 24 as iris scanners using bct are secure, and guarantee the identification of individuals and may be necessary in contexts where it is not possible to use official documentation (g’sell, martin-bariteau, 2022, p. 23). in other words, while the application of blockchain to digital identification allows people without the capacity to officially identify themselves to prove their identity to third parties. however, it has the disadvantage that it requires users to have access to the necessary technological resources and tools, and that the party to whom they are seeking to identify themselves recognizes their ssi. the last example crumpler uses to explain the advantages of using blockchain is the management of land rights. as a starting point, it is necessary to bear in mind that in order for this debate to make sense from a human rights perspective, it is necessary for individuals to be able to access property without being discriminated against, especially in the case of vulnerable groups. according to crumpler, the main virtues of using blockchain in this context are that it would prevent corruption and the risks of mismanagement. this is especially important in countries where land management is still paper-based and land titles have not been digitised, or in which ownership is transferred through informal mechanisms that are not officially recorded, allowing for the destruction or alteration of land titles and corrupt practices. (crumpler, 2021, p. x). however, as the author makes clear, the use of bct, while ensuring that property records are correct and making corrupt practices more difficult, is not in itself sufficient to fully ensure transparency and accountability in the management of land rights. finally, in order to properly understand the role that bct can play in the protection of human rights, it has been proposed that applications with this technology carry out a due diligence study prior to its implementation, so that its main advantages and disadvantages for the guarantee of human rights are known (crumpler, 2021, p. x). for example, the explanatory memorandum of the proposal for a regulation of the european parliament and of the council on crypto-asset markets (and amending directive (eu) 2019/1937) noted in its impact assessment that the proposal is not likely to have a direct impact on fundamental rights, as listed in the core un human rights conventions, the charter of fundamental rights of the european union, and the european convention on human rights (european commission, 2020). the importance of such measures lies in the fact that, as we have seen, although bct favours the exercise of human rights, it can also seriously jeopardise them, especially in the case of vulnerable and disadvantaged groups. 5. conclusions the gdpr came into force in 2018, modifying the previous regulation in 2 aspects of particular relevance: the processing of personal data and the freedom of movement of such data. according to the new regulatory framework, those operating in the european union, regardless of their nationality, have become data controllers and processors of personal data. likewise, the new regulation focuses on the design of a legal framework that ensures adequate security and confidentiality of personal data, for which data processors may be required to establish certification mechanisms and data protection seals and marks. https://doi.org/10.17561/tahrj.v23.8702 oscar celador angón the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 25 as regards the right to be forgotten, in accordance with the gdpr, the data subject may request the controller to erase personal data concerning him or her without undue delay. the controller has to decide on a case-by-case basis whether to agree to erase the information, taking into account the right to privacy and the protection of the public interest in certain contexts (health, judicial, scientific or historical research), as well as certain fundamental rights, such as the freedoms of expression and information. the exercise of this right depends on the grounds on which the data subject requests deletion, as well as on whether the data to be deleted are (or are not) necessary for the purposes for which they were collected. the right to be forgotten is not unlimited, but an autonomous right that may be denied in certain cases to protect the public interest in specific contexts (health, judicial, scientific or historical research), as well as certain fundamental rights, such as the freedoms of expression and information. the court of justice of the european union has ruled on the right to be forgotten with a case law that differentiates between the responsibilities of search engines and the website on which the information is stored. the exercise of the right to be forgotten has been addressed mainly to search engines, in those cases in which websites offer information protected by the internet user’s right of access to information. according to this approach, the right to be forgotten can be defined as the right to remove search engine results, when the search is performed using personal data of the person who wants to be forgotten. this right only applies to search engines with domain names associated with eu member states, as the european court of justice has no jurisdiction outside the eu. in order to protect the rights to respect for private life and to the protection of personal data, search engine operators have an excessive margin of appreciation to resolve conflicts between the right to data protection and the freedoms of expression and information. search engine operators should decide the above conflicts on a case-by-case assessment, on the one hand, by analysing whether all results obtained after a search based on the name of the data subject are strictly necessary to protect the freedom of information of internet users; and, on the other hand, claims related to the right to be forgotten should be resolved taking into account the nature of the information in question, the sensitivity of the dissemination of the information for the privacy of the data subject, and the public interest in having the information available. the presentation of images by search engines in the form of previews may entail an additional interference with the rights to respect for privacy and to the protection of personal data, since it allows internet users to access information that is complementary and autonomous to the main information. therefore, users can also exercise the right to be forgotten with regard to images that search engines associate with their personal data. the case law of the ecthr can be described as protective of the right to be forgotten. like the european court of justice, the ecthr has differentiated between the obligations of publishers and creators of information and search engines. the ecthr has ruled on the need for personal information provided in digital form to be modified to ensure anonymity, taking into account the way in which news is treated, as well as the information it contains. https://doi.org/10.17561/tahrj.v23.8702 general data protection regulation, right to be forgotten, blockchain technology and human rights the age of human rights journal, 23 (december 2024), e8702 issn: 2340-9592 doi: 10.17561/tahrj.v23.8702 26 the ecthr has established two principles on the anonymisation of personal data. firstly, if requested by the data subjects, the media are obliged to review their archives and check whether, when an article is to be archived in their digital archive, it is necessary to keep the personal data or to anonymise it, for example by changing the initials of the first names and surnames by an x. in this way, to avoid violating the right to privacy, it is not necessary to delete the article from the newspaper’s archives, but only to anonymise the electronic version. and secondly, in this process it is necessary to assess to what extent the rights to obtain from the controller the erasure of personal data and the freedoms of expression and information can be harmonised, depending on when the information to be modified is no longer necessary for the purposes for which it was collected or processed. compatibility between the gdpr and bct is one of the major challenges that europe will face in the coming years. the main characteristics of the blockchain are: technological security, autonomy of the system, and transparency and anonymity of the operators. these ingredients make this technology perfect for guaranteeing the quality of data and financial transactions, with very important applications in the field of human rights and sustainable development objectives. however, the main virtue of the bct (anonymity) collides with the exercise of the right to be forgotten and the role and responsibility that the gdpr mandates for data controllers and processors of personal data. mechanisms need to be designed to make bct compatible with the principles of the gdpr, especially in the context of the right to be forgotten and the designation of the data controller in charge of guaranteeing users’ rights in the processes. otherwise blockchain will be a useless technology, because its main virtue (absence of third parties in the processes and anonymity of its users) prevent it from adequately enforcing the gdpr. to this end, formulas have begun to be designed thanks to some projects led by the european union, that allow the blockchain to be modified to comply with gdpr regulations, but at the same time without eliminating the main hallmarks of bct. funding this article has been written within the “trust digital turn in europe: strengthening relational reliance through technology” project. this project has received funding from the european union’s horizon 2020 research and innovation programme under the marie skłodowska-curie grant agreement no 101007820. this article reflects only the author’s view and the rea is not responsible for any use that may be made of the information it contains. bibliography aguinaga glaría, b. 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(2020) “derecho al olvido. notas sobre su evolución y futuro en la unión europea”, el cronista del estado social y democrático de derecho, 88(mayo-junio), pp. 84-95. reform.uk, gdpr and blockchain. (2018) are blockchain and gdpr compatible? some issues to consider, 14th august 2018. samonte, m. (2019) “google v cnil: the territorial scope of the right to be forgotten under eu law”, european papers, 4(3). sancho lópez, m. (2018) “nuevas tecnologías, big data y derecho al olvido digital: ¿supone el nuevo reglamento europeo de datos personales un cambio de modelo?”, papeles el tiempo de los derechos, 7. soriano garcía, j. e. (2018) “presente del derecho al olvido”, el cronista del estado social y democrático de derecho, 78, pp. 4-21. torres manrique, j. i. (2018) “analizando el derecho fundamental al olvido a propósito de su reciente reconocimiento y evolución”, revista general de derecho constitucional, 27. weinstein, jason (2016) “why bitcoin is better for crime fighters than criminals”, coindesk’s, available at https://www.coindesk.com/markets/2016/04/04/whybitcoin-is-better-for-crime-fighters-than-criminals/ (access 22/2/2024) zárate rojas, s. (2013) “la problemática entre el derecho al olvido y la libertad de prensa”, derecom, 13(mar-may). received: 22nd february 2024 accepted: 9th july 2024 https://doi.org/10.17561/tahrj.v23.8702 https://www.coindesk.com/markets/2016/04/04/why-bitcoin-is-better-for-crime-fighters-than-criminals/ https://www.coindesk.com/markets/2016/04/04/why-bitcoin-is-better-for-crime-fighters-than-criminals/ general data protection regulation, right to be forgotten, blockchain technology and human rights 1. introduction 2. the general data protection regulation 3. right to erasure (right to be forgotten) 3. 1. court of justice of the european union case law 3. 1. 1. search engine responsibilities 3. 1. 2. requirements for removing links to websites containing personal data 3. 1. 3. geographical scope of link removal 3. 1. 4. image search results 3. 2. european court of human rights case law 4. blockchain technology and anonymity 4. 1. blockchain, gdpr and right to erasure 4. 2. blockchain and sustainable development goals (sdgs) 4. 3. blockchain and human rights 5. conclusions funding bibliography ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 1 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions mostafa fazaeli1, mousa karami2 abstract: being in non-dominant position and forming one of the largest ethnic groups numerically in türkiye (previously turkey), kurds constitute an ethnic minority. the main argument of this article is that neglecting and disrespecting the cultural rights (crs) of this group has led to transformation of a social challenge to a political one which ultimately resulted in a security challenge through an armed movement by p.k.k. in the 1980s. employing a descriptive-analytical method to analyse the content, the present article aims at investigating the necessity of, challenges to and solutions for ensuring crs of kurdish minority. it appears that ensuring the cultural rights of kurdish minority in türkiye is a pressing necessity particularly for preserving cultural diversity as the common heritage of humanity and maintaining national, regional and international peace and security. furthermore, the main challenges with which ensuring crs of kurds in türkiye is facing are weak international belief in cultural rights, lack of sufficient national and international monitoring bodies and effective enforcing mechanisms, and dominance of kemalism as the founding ideology of republic of türkiye. accordingly, the solutions for eliminating these challenges can be strengthening the foundations and developing the sources of cultural rights of ethnic minorities, activating the national and international monitoring bodies and criminalising certain examples of violations of cultural rights and predicting effective sanctions. no article has been written on the necessity of, challenges to and solutions for ensuring the crs of kurdish minority in türkiye in a single piece. addressing these factors from the perspective of crs as human rights, this article contributes in filling the existing gap in literature in this regard. keywords: cultural rights, ethnic minority, kurds, human rights, türkiye. summary: 1. introduction. 2. grounds for necessity of ensuring the cultural rights of kurds in türkiye. 2.1. preservation and promotion of cultural diversity as common heritage of humanity: the intrinsic goal. 2.2. maintaining national, regional, and international peace and security: the instrumental goal. 3. challenges to ensuring the cultural rights of the kurds in türkiye. 3.1. weak international belief in cultural rights. 3.2. lack of sufficient national and international monitoring bodies and effective enforcing mechanisms. 3.3. dominance of kemalism as the founding ideology of republic of türkiye. 4. solutions for eliminating the challenges facing the ensuring cultural rights of kurds in türkiye. 4.1. strengthening the foundations and developing the sources of cultural rights of ethnic minorities. 4.2. activating the national and international monitoring bodies. 4.3. criminalising certain examples of violations of cultural rights and predicting effective sanctions. 5. conclusion. 1. introduction culture connects the present to the past and the previous generations to the current ones. so, it can be claimed that culture is an integral part of human life and its different aspects. all human beings, regardless of their sex, ethnicity, religion, nationality etc. 1 associate professor, department of international law, faculty of law, university of qom, qom, iran (m.fazayeli@qom.ac.ir). 2 phd candidate, department of international law, faculty of law, university of qom, qom, iran. http://10.17561/tahrj.v20.7329 mailto:m.fazayeli@qom.ac.ir ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 2 are entitled to enjoy rights and freedoms. put it another way, "we can imagine a world without human beings, but a human being without rights is unimaginable" (ghaznavi, 2008, p. 534). cultural rights, as culture-related rights, are considered to be the most marginalised, neglected and non-developed category of human rights in human rights discourse. however, as polumernopoulou puts it, the enlargement of the concept of culture in the early 1990s and the development of minority and indigenous peoples’ rights in the third millennium, along with the growth of unesco activities and ngos’ advocacy, have all significantly contributed to the empowerment of cultural rights. the 1993 vienna declaration proclaimed, among other things, that ‘international human rights law has established individual and group rights relating to the civil, cultural, economic, political and social spheres; the 2005 unesco convention on the protection and promotion of the diversity of cultural expressions was the first un binding instrument giving teeth to both the concepts of cultural diversity and intercultural dialogue; the 2005 world summit outcome resolution has highlighted the importance of ‘respect and understanding for religious and cultural diversity throughout the world; and the 2007 fribourg declaration on cultural rights considered that respect for diversity and cultural rights is a crucial factor in the legitimacy and consistency of sustainable development based upon the indivisibility of human rights’ (polumernopoulou, 2014, pp. 447-448). accordingly, cultural rights are slowly replacing traditional narratives pertaining to cultural policies (such as cultural democracy, cultural democratisation, cultural diversity or creativity). however, it should be mentioned that this process is not unequivocal (romainville, 2015, p. 408, footnote 20). on the one hand, culture has gained a significant position through the realisation of cultural rights in international human rights law. on the other hand, generally speaking, the definition of cultural rights is closely affiliated with and dependent upon the concept of culture as "one of the most ambiguous and confusing concepts in contemporary era" (eslami nodoushan, 2012, p. 112). taking this fact into account, cultural rights can be broadly defined as human rights that directly promote and protect cultural interests of individuals and communities and that are meant to advance their capacity to preserve, develop, and change their cultural identity. such rights include rights that explicitly refer to culture, such as the right to take part in cultural life and the right of members of minorities to enjoy their own culture; and rights that have a direct link with culture, such as the right to self-determination; the rights to freedom of religion, freedom of expression, and freedom of assembly and association; and the right to education (donders, 2015, p. 117). the culturalisation of political life has been on the rise within states as well as internationally. this "battle of the cultures" as some may see it, is part of more fundamental struggle: the struggle for the expression of identity, both personal and political (stamatopoulou, november 2012, p. 1172). it is due to this fact that nowadays, respect for and promotion of cultural rights is firmly linked to peace in many parts of the world when it comes to minorities and indigenous peoples. from basque of spain and the russians of the baltic republics to the kurds in türkiye and the indigenous peoples of ecuador, defending cultural uniqueness is a profound demand and political rallying point (stamatopoulou, 2007, p. 8). ethnic minorities are among the groups the existence of which is completely dependent upon the preservation of their culture and its constituent elements. needless to say, protection of the culture of these groups has a deep relationship with respect for and recognition of cultural rights and their enjoyment by groups' members. http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 3 republic of türkiye (previously the republic of turkey) is a multi-ethnic state in which the kurds form one of the largest ethnic groups numerically. it is noteworthy that türkiye is the most populated kurdish country in the world. in the twentieth century, from the 1920s onwards, turkish state’s relations with its citizens of kurdish origin have at times been rather problematic. between 1920 and 1938 alone, that country faced 17 kurdish rebellions, three of them, those of 1925, 1930, and 1937, being major ones. then, between 1984 and 1999, türkiye had been the scene of protracted armed conflict between kurdish separatists and government forces. the estimated loss of life from both sides during that second round of ‘troubles’ was around 35.000 (heper, 2007, p. 1). the tensions between kurds and the state in türkiye continues to exist. it appears that, at least, one of the main reasons behind the establishment of kurdistan workers party (kwp-pkk) in the 1980s was the violation of cultural rights of kurds in türkiye. for instance, according to the statistics mentioned in pierse's work, until 1991 it was illegal to speak kurdish in türkiye, even in private (pierse, 1997, p. 325). it is undeniable that despite some positive developments in recent years, türkiye's approach toward minority groups continues to fall seriously short of existing international standards. in accordance with a definition offered in 1977 by francesco capotorti, the thenspecial rapporteur of the sub-commission on prevention of discrimination and protection of minorities, “a minority is: a group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language” (capotorti, 1979, p. 96). accordingly, apart from a sense of solidarity, two criteria must be met to consider a group as a minority in legal terms: 1. the numerical criterion or numerical inferiority to the rest of the population of a state; and 2. being in a non-dominant position (capotorti, 1979, p. 96). according to world population review, the population of türkiye as of january 2022 is about 85,434,479 which is mainly comprised of the turkish people, who make up 75% of the total population, while kurdish make up 18%. other ethnic groups take up the remaining 17% of the total population. the languages spoken by the majority are turkish and kurdish, while minority groups speak other languages. the main religion, followed by 99.8% of the population, is islam, while other religions are followed by the minute .02% of the population3. the kurdish language is a west iranic indo-european language and as unal observes, an indigenous and regional one in the area (unal, 2021, p. 262). in addition, turkish majority population is comprised of suunis of hanafi school while kurds in türkiye are sunni muslims who adhere to shafi'i school. as can be seen, kurds and turkish majority in türkiye differ both in terms of ethnicity and school of sunni islam (fazaeli and karami, 2016, pp. 54-55). furthermore, due to the domination of kemalism as the founding ideology of republic of türkiye, non-turkish ethnic groups including 3 for more information as to the population of türkiye see https://worldpopulationreview.com/countries/ turkey-population http://10.17561/tahrj.v20.7329 https://worldpopulationreview.com/countries/turkey-population https://worldpopulationreview.com/countries/turkey-population ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 4 kurds are in a non-dominant position. as a consequence, in accordance with international law regulations, kurds constitute an ethnic minority in türkiye. the main argument of this article is that neglecting and disrespecting the cultural rights (crs) of this group has led to transformation of a social challenge to a political one which ultimately resulted in a security challenge through an armed movement by p.k.k. in the 1980s. employing a descriptiveanalytical method in analysing the content, the present article aims at investigating the necessity of ensuring the cultural rights of the kurdish minority in türkiye, challenges meeting it and solutions for eliminating these challenges. in doing so, first and foremost, it deals with the grounds for the necessity of ensuring the cultural rights of the kurds in türkiye. then, the main challenges existing in this regard would be addressed. thereafter, the solutions for eliminating these challenges are discussed. it should be noted that examination of the cultural rights of minority groups4 is beyond the scope of this article. 2. grounds for necessity of ensuring the cultural rights of kurds in türkiye in this section, we attempt to address the main grounds for the necessity of ensuring the cultural rights of kurds in türkiye namely preservation of cultural diversity as common heritage of humanity as an intrinsic goal of international minority protection system and maintaining the national, regional, and international peace and security as the instrumental goal of the aforementioned system. 2.1. preservation and promotion of cultural diversity as common heritage of humanity: the intrinsic goal where there are minority groups, there is cultural diversity as well and the system of minority rights law is inclined toward the preservation of cultural diversity (montazeri et al., winter 2020, p. 196). according to unesco, cultural diversity is a prime constituent of human identity and, as a result, it can be considered as humanity’s common property. far from seeing it as a concession to variety on the part of some imaginary singular identity, we must bear in mind the thought that diversity is the very essence of our identity. one strand cannot be set against the other, for they are intertwined. cultural diversity basically means having to recognise and promote cultural pluralism in the broadest sense of the term. yet equating human identity with cultural diversity equally means having to recognise that the very concept of diversity itself involves the presence of unity, without which diversity itself would merely amount to multiplicity. diversity can only exist against a backdrop of unity, and widespread recognition of cultural differences, with all that it entails, is by nature an affirmation of the deep-seated unity of human action– all those differences being observed against a uniform backdrop. diversity and culture are fundamentally interrelated: culture is diversity, an infinite tapestry of distinctions, nuance and change; a relentless return to all that exists in order to render it both new and the same, to understand it and bring it to life. culture is, by nature, diverse. yet, for that same reason, it gives diversity a dimension that surpasses and envelops it. diversity per se does 4 for detailed analysis of cultural rights of minorities see: (stamatopoulou, 2007, pp. 163-229). http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 5 not exist: it is even, in the absence of culture, incomprehensible, and everything looks the same to anyone lacking cultural depth. diversity is constructed by culture. culture is what shapes it, gives it scope and meaning. diversity is essentially cultural, just as culture is diversity (unesco, 2002, pp. 3-4). pursuant to art. 1 of unesco universal declaration on cultural diversity: "culture takes diverse forms across time and space. this diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. as a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. in this sense, it is the common heritage of humanity and should be recognised and affirmed for the benefit of present and future generations". currently, cultural diversity lies at the heart of contemporary world. for earlier multicultural societies, cultural diversity was a morally and politically marginal fact of social life; the former because it did not affect the values and the vision of the good society that animated the mainstream society, the latter because it gave minority communities no or little say in the conduct of collective affairs. by contrast, cultural diversity is a central moral and political fact of modern life, influencing all areas of life and posing problems that require urgent and untried answers (parekh, 2005, p. 15). nowadays, cultural diversity has opened its way to the world of human rights both as a value (common heritage of humankind) and a right (in the form of cultural rights, right to self-determination and rights of special groups) (kardooni and nikpay, spring 2016, p. 66). cultural diversity is not only an ineradicable fact of modern life but also a value worth cherishing. it adds to the variety of life and has an aesthetic significance. it increases our range of choices and widens the ambit of our freedom. in so far as it alerts us to the fact that the good life can be lived in several different ways, cultural diversity highlights the contingency and mutability of our beliefs and practices. since no culture is perfect and since each represents only a limited vision of the good life, it needs others to complement and enrich it. cultural diversity is therefore an important constituent of human well-being. since other cultures provide us with vantage points from which to look at our own, they enable us to appreciate its strengths and limitations and increase our capacity for selfconsciousness, self-criticism and self-regeneration. the diversity of cultures alerts each to the diversity within it, guards it against the dangers of essentialisation and homogenisation, and encourages a most welcome internal debate between its different strands. cultural diversity and the intracultural and intercultural dialogue it fosters thus expand and deepen our capacity for rationality by highlighting our conscious and unconscious cultural assumptions, and giving us the space and the power to challenge them (parekh, 2005, p. 15). in the cultural sphere, freedom, diversity, comparison and competition are prerequisites of flourishing. by contrast, cultural monopoly undermines creativity, diversity and freedom. as political monopoly causes political tyranny, cultural monopoly leads the society to cultural tyranny. so, it could be argued that cultural diversity is a constituent component of and a precondition for the freedom of human being. furthermore, cultural diversity is promoted and protected through certain human rights and plays a pivotal role in promotion of human rights simultaneously. in fact, the relationship between human rights and cultural diversity is one of the main issues in http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 6 international human rights law (heidari, spring 2016, p. 44). as donders states "it is widely agreed that human rights and cultural diversity have a mutually interdependent and beneficial relationship. many human rights, such as the rights to freedom of expression, freedom of religion, freedom of assembly, as well as the rights to take part in cultural life and to education, play a direct role in the promotion and protection of cultural diversity. at the same time, the enjoyment of human rights is promoted by a pluralistic society. the 2001 universal declaration on cultural diversity provides that ‘the defence of cultural diversity is…inseparable from respect for human dignity’ and ‘implies a commitment to human rights and fundamental freedoms’ (donders, 2012, p. 377). in another work, she remarks that the framework of human rights, with its system of limitations based on the principles of equality, non-discrimination, as well as the rights of others, could safeguard cultural diversity from being misused for the protection of cultural practices that infringe upon human rights. within the general human rights framework, cultural rights have special importance for the promotion and preservation of cultural diversity. the category of cultural rights covers many different human rights. cultural rights are more than merely those rights that explicitly refer to culture but include all human rights that protect or promote components of the cultural identity of individuals and communities as part of their human dignity (donders, march 2010, pp. 31-32). as azizi has pointed out, the preservation of a minority group' identity necessitates the protection of the components of its culture (azizi, 2015, p. 280). therefore, it could be argued that respecting and protecting the cultural rights of kurds in türkiye seems to be necessary not only to realisation and preservation of cultural diversity, but also for safeguarding the human dignity and identity of persons belonging to this ethnic minority. additionally, enjoying cultural rights is vital for enjoying other human rights. this is due to the fact that culture as a way of life encompasses all aspects of human life, and consequently, has a close relationship with other human rights. therefore, any obstacle to implementing cultural rights affects the enjoyment of other categories of human rights negatively. as well, we should bear in mind that ensuring cultural rights is considered to be impossible without full-enjoyment of other human rights including civil, political, economic and social ones. generally speaking, promotion and preservation of cultural diversity can be regarded as the intrinsic goal of international minority protection based on which it could be concluded that ensuring the cultural rights of kurds in türkiye is necessary for achieving this goal. 2.2. maintaining national, regional, and international peace and security: the instrumental goal peace, human rights and cultural diversity as universal values are interconnected and promote each other (farrokhi and a'laie, summer 2017, p. 198). in particular, the fundamental and undeniable link between human rights and international peace and security is enshrined in the un charter. the preamble of the 1948 universal declaration of human rights associated the protection of human rights with the prevention of violent conflict, stating that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. within the united nations, the protection of minorities aims http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 7 at fostering peace and security as well as the protection of human rights (kugelmann, 2007, p. 236). that is to say, minority protection system serves as a prevention tool for maintaining and fortifying peace and security. the history of hostility between kurds and turks is a long one and can be traced back to the reign of suleiman the magnificent of ottoman empire (çakmak and şur, 2022, p. 3) who was the first person to kill and imprison kurds as well as the one who divide their lands for the first time through the 1555 amasya peace treaty (svanidze, 2009, pp. 191-196). this situation was continued until the establishment of turkish state after the ww i and the dissolution of the ottoman empire. turkish nationalism aiming at historymaking and nation-building increased in the 1950s. the policies followed by the turkish governments in the 1960s and the 1970s toward non-turkish groups including kurds, led to transformation of a social challenge to a political one which ultimately resulted in a security challenge through an armed movement by p.k.k. in the 1980s (chegnizadeh and asartamar, summer 2009, p. 187). since the establishment of the turkish republic in 1923, the kurdish issue has existed as a source of internal conflict and instability, but after the beginning of the armed insurgency in 1984 and the declared aim for a separate statehood it became the main threat and security concern for turkish policy-makers. till now the conflict has taken the lives of more than 40000 people, cost billions of dollars and has had a detrimental effect on social relationships, contributing to the escalation of ethnic polarisation and nationalism. the perception of the problem as an internal issue changed with the end of the cold war and the increased dynamics in the middle east. the kurdish question turned into the main tool to be used against türkiye and containing the pkk’s threat has become the main focus of its foreign policy. at the same time, foreign policy was highly instrumentalised to achieve goals related to domestic politics (todrova, 2015, p. 109). armed ethnic conflict between turkish armed forces and pkk partisans, not only has seriously challenged türkiye's internal security, but also can be a real danger for regional and international peace and security. even if fought on a low level of intensity, protracted ethnic conflicts have a great impact on the affected society. in addition, these conflicts have very direct effects far beyond their epicentres. these involve refugee flows, internal displacement, regional instability, economic failures, environmental disasters, diffusion, effects, and establishing the conditions for organised crime and terrorism. neighbouring countries are often overwhelmed and get drawn into the downward spiral following ethnic turmoil. however, neighbouring states, regional and international powers as well as international organisations, which pursue their own interests, directly influence the outcome and dynamics of ethnic conflict. neighbouring states and the international community can thus be the victims of the troubles in the region or active contributors – sometimes deliberately, in other cases unintentionallyby providing military, economic, or political support of ethnic groups or engaging in negotiation and peace implementation (kempin reuter, 2006, p. 44). many ethnic conflicts start out as intrastate disputes and then become regional or international crises when foreign powers get involved. regional instability is as much http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 8 as source as a consequence of ethnic conflict. extensive refugee flows caused by ethnic conflicts can destabilise the ethnic demographics in a neighbouring country and thus lead to another conflict with ethnic dimensions. in some cases, trouble spills over into neighbouring countries. ethnic conflicts spread in two ways: diffusion occurs when an ethnic conflict in one state stimulates conflict in another state with similar conditions. successful movements provide images and moral incentives resulting in the motivation and mobilisation of other ethnic movements. furthermore, escalation or contagion effects occur when a conflict in one country spreads across borders into neighbouring countries in which an ethnic minority has its kinfolk. this usually involves the engagement of new foreign fighters that are employed by local elites (kempin reuter, 2006, p. 45). one of the neighbouring countries on which notable casualties and damages resulting from kurdish-turkish ethnic conflicts are imposed is iran. activities of pkk. forces in west and northwest iran as well as the establishment of the kurdistan free life party, or pjak (kurdish: partiya jiyana azad a kurdistanê), not only have caused social insecurity in border counties of the country, but also have led to gross danger for border security of islamic republic of iran. stimulation of ethnic feelings in iran, as the motherland of kurds all around the world, can be added to these effects that itself can be a source of intolerance and insecurity. now, the kurdish question in türkiye is not merely an internal issue and has become a regional and even international one. to sum up, armed conflict between turkish armed forces and p. k. k. partisans has endangered national security of türkiye and regional and international peace and security as one of the most important goals of un which necessitates the ensuring of cultural rights of kurdish minority in türkiye more than before. 3. challenges to ensuring the cultural rights of the kurds in türkiye the main challenges to ensuring cultural rights of kurds in türkiye are considered to be the weak international belief in cultural rights, lack of sufficient national and international monitoring bodies and effective enforcing mechanisms, and ultimately, dominance of kemalism as the founding ideology of republic of türkiye. accordingly, this section deals with these challenges in 3 sub-sections. 3.1. weak international belief in cultural rights among the second generation of human rights, cultural rights are the most nondeveloped ones (saffarinia, 2016, p. 78) that has gained the attention of international community in recent decades due to their role in and effect on the maintenance of regional and international peace and security. these rights are commonly characterised by international legal scholars specialising in the field as a category, which, until relatively recently, was neglected and underdeveloped as regards their normative content, scope of application and legal enforceability. typically, they have been described as the cinderella of the human rights family, as forgotten, ragbag, hazy, and almost a remnant category (yupsanis, 2012, p. 346). in this regard, the cultural rights of minority groups that are among the most vulnerable ones in related societies are more neglected and marginalised (fazaeli and karami, 2017, p. 10). the definitional ambiguity as regards cultural rights http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 9 is partially to blame for their historical neglect in the human rights domain. despite the fact that states have repeatedly affirmed the universal, indivisible, interdependent and interrelated nature of all human rights, cultural rights have been consistently overlooked and underdeveloped. it is stated that cultural rights are the failed cinderella of the international human rights lexicon – pretty to pick sure but they don’t quite make it to the ball. civil and political rights have long been considered more important and prioritised above economic, social and cultural (esc) rights in human rights practice and discourse. even when the literature focuses on esc rights, it routinely does so without giving any real consideration to cultural rights. this neglect is reflected in numerous human rights instruments, which either omit any reference to cultural rights or, alternatively, place them towards the end of the document (quoted in: luoma, 2021, p. 37). cultural rights are faced with certain challenges in terms of growth, development and implementation. based on the findings of the research conducted by taheri hajivand and jamali, the long-standing dominance of realism in international relations, the pessimistic attitude of international community toward the idealistic approaches, the impossibility of the progress of socialist ideals within the scope of world power, insufficient attention to anthropological foundations of cultural rights, and the issue of indivisibility of human rights are the main barriers to the growth of cultural rights. furthermore, lack of an agreed upon definition of culture, lack of a common definition as to cultural rights, and lack of any list relating to the examples of human cultural rights are among the factors that hinder the development of cultural rights. fragmentation of the cultural rights' foundations in different international instruments, inaction of national and international institutions as to the developmentary measures as well as the false conceptual mixing of cultural rights with the question of cultural diversity should be added to these factors. in addition, non-existence of specialised institution to implement the cultural rights, the states concern as regards their implementation and lack of international awareness and education about this category of human rights are considered to be the main obstacles to the implementation of cultural rights (taheri hajivand and jamali, may 2021, pp. 164-165). cultural rights have invoked, for some governments, the scary spectrum of group identities and group rights that they fear could threaten the "nation" state and territorial integrity. the other side of the coin is that governments may be wary of the threat that majorities may feel from promotion of minority cultures which may lead to claims for collective rights (stamatopoulou, 2007, pp. 5-6). that being the case, some states including türkiye maintain that there is no need to grant the minority groups rights beyond general human rights. türkiye, however, takes the view that there is no need to grant minority status to people of different ethnic origin within the country, except for cases mentioned in the treaty of lausanne. türkiye acknowledges the existence of different ethnic groups, including the kurds, but it denies them the legal status of a minority. according to the turkish view, all the country’s ethnic groups together constitute the turkish nation and are first class citizens enjoying equal rights (arikan, spring 2002, p. 25). needless to say, this approach that is based on a formal understanding of equality can lead to indirect discrimination against minority groups and negate their ability and right to preserve their unique and distinct group identity. http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 10 3.2. lack of sufficient national and international monitoring bodies and effective enforcing mechanisms lack of sufficient national and international monitoring bodies and effective enforcing mechanisms against the violations of cultural human rights in general and cultural rights of ethnic minorities in particular is another challenge with which kurds are facing currently in enjoyment of their cultural rights in türkiye. undoubtedly, besides recognition and stipulation in legal instruments, monitoring bodies and effective enforcing mechanisms are vital for ensuring the implementation of human rights. currently, there is no specific international instrument to address the cultural rights of minority groups, including ethnic minorities and their cultural rights, only marginally and non-sufficiently, are mentioned is certain international human rights conventions such as international covenant on civil and political rights (iccpr), international covenant on economic, social and cultural rights (icescr), convention on rights of the child (crc), convention on elimination all forms of racial discrimination (cerd), convention on the elimination of all forms of discrimination against women (cedaw) etc. monitoring treaty bodies in general and the committees monitoring the two 1966 international covenants in particular have not had an acceptable performance regarding the cultural rights of minority groups. the primary and main reason behind this non-acceptable performance may be attributed to the aforementioned reasons for neglecting cultural rights in international law and community. political will and consent of states, which are yet the most important subjects of international law, are one of the most significant factors for ensuring the implementation of international law regulations including human rights rules and standards. türkiye has signed (15 august 2003) and ratified (23 december 2003) the 1966 international covenants as two international binding instruments encompassing certain rules regarding cultural rights5. however, due to non-efficacy and non-effectivity of monitoring system of these to instruments as to cultural rights of ethnic minorities, actually it is not possible to monitor this state for violation of cultural rights of kurds. the most significant and effective universal method to protect human rights and fundamental freedoms is individual complaint mechanism based on which the primary victim of violation of human rights can complaint before an international body. it is noteworthy that on 10 december 2008, the un general assembly adopted the optional protocol to the international covenant on economic, social and cultural rights6. despite the fact that this right is predicted in 1966 covenants, is not satisfactorily implicating specifically for minority groups such as kurds: first, these procedure is optional and dependent upon the consent of the state; second, this method is quasi-judicial and the final decision is not binding upon states. türkiye has not yet accepted this procedure. the european convention on human rights and fundamental freedoms contains no minority rights provision. therefore, there is no direct way for members of minority groups such as kurds in türkiye to claim minority rights before the european court of human 5 see https://treaties.un.org/pages/treaties.aspx?id=4&subid=a&lang=en 6 optional protocol to the international covenant on economic, social and cultural rights, adopted 10 dec. 2008, g.a. res. 63/117, u.n. gaor, 63d sess., u.n. doc.a/res/63/117 (2009). http://10.17561/tahrj.v20.7329 https://treaties.un.org/pages/treaties.aspx?id=4&subid=a&lang=en mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 11 rights. furthermore, besides france, monaco and andorra, türkiye is another country which has neither signed nor ratified the 1995 council of europe framework convention for the protection of national minorities that has a progressive monitoring mechanism7. lack of effective enforcing mechanisms, along with weak international monitoring system regarding the performance of states respecting cultural rights of ethnic minorities have posed a serious challenge on ensuring the cultural rights of kurds in türkiye. the significance of enforcing mechanism in legal sphere is such that its lack or weakness has been invoked for denying the legal nature of international law and even its existence as a legal system. non-criminalisation of violation of certain cultural rights can be added to this challenge. despite the incorporation of cultural genocide in the draft convention on the prevention and punishment of crime of genocide, the opposition of the majority of states in the related negotiations led to its elimination in the final text of the convention and currently, only physical genocide is criminalised as an international crime (arashpour and zahmatkesh, december 2018, pp. 198-199). it is despite the fact that physical and biological acts are not the exclusive ways to destruct a groups and acts measures aimed at the cultural destruction of a certain group can be addressed and criminalised in the framework of cultural genocide (beigi and teymouri, vovember 2021, pp. 129-159). these lacks and lacunas cast the future of cultural rights of kurdish minority in türkiye in the doubt. 3.3. dominance of kemalism as the founding ideology of republic of türkiye one of the permanent challenges and obstacles to recognition of distinct ethnic identity for kurds in türkiye and their enjoyment of cultural rights, has been the dominance of tremendously radical views of kemalism as the founding ideology of republic of türkiye. roots of the official manner of the turkish state towards the kurds go back to the formation of the kemalist ideology and to the first constitution of the state in 1924. the founder of the modern turkish republic, mustafa kemal, frequently referred to the unity of interest between the kurds and the turks before the declaration of the new republic. for instance, kemal emphasised: “the loyalty of the kurdish people has been known to us for a long time. the kurds have always been a valuable help to the turks. one can say that the two peoples form one.” whereas, the new kemalist state had been based on the notion of ‘oneness’, in other words, the kurds’ national claims had constantly been seen as a threat to the ‘indivisible integrity’ of turkish lands. the young republic’s constitution, state officials and even the courts denied the kurdish ethnic identity, and the new state’s policy toward the kurds was based on denial of their language, culture, history, and continued with a systematic forced assimilation campaign through prohibiting the kurdish language, use of the expressions of kurds, kurdistan, kurdish and deportation of kurdish population from the south eastern türkiye to the western regions of country. the new turkish state constructed new myths claiming that kurds were really turks, they were a clan linked to the original turkish racial origins, or as it frequently declared by high officials they were the mountain turks (sangic, july 2010, pp. 128-129). as avci states, "kurdish identity has been one of the “constant others” of the kemalist ideology founders" (avci, 2019, p. 127). in 1923 mustafa kemal (atatürk) created 7 see https://www.coe.int/en/web/minorities/etats-partie http://10.17561/tahrj.v20.7329 https://www.coe.int/en/web/minorities/etats-partie ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 12 the modern turkish republic. the new government embarked on a radical programme of secularisation, and the creation of a unified, indivisible state based on one language, and one people. by necessity, this required the conversion of an ethnically and linguistically diverse people into a homogeneous population of turks (yildiz, 2007, p. 83). it appears that the kemalist ideology has influenced the identity structure of republic of türkiye and it is clearly embodied, inter alia, in the first paragraph of the türkiye's current constitution8 which reads as follows: "affirming the eternal existence of the turkish motherland and nation and the indivisible unity of the sublime turkish state, this constitution, in line with the concept of nationalism introduced by the founder of the republic of türkiye, atatürk, the immortal leader and the unrivalled hero, and his reforms and principles". unlike the rest of the world, which perceives minority to mean groups that differ in ethnic, linguistic, and religious content, in the official discourse of türkiye this term refers to only a very small portion of the population: non-muslim citizens who make up in the twenty-first century approximately 0.1 percent of the population. the roots of this narrow understanding lie in the 1454 millet system and the 1923 lausanne peace treaty that came from it. nearly a century has passed since 1923, during which the world made colossal advances in the area of human and minority rights through various international instruments. the republic of türkiye has signed and bound itself to a number of these, but major problems remain, particularly concerning non-muslims, alevis, and kurds. violations of the rights of the latter two groups, some 15–20 million each, which are not acknowledged as minorities by the state, constitute an existential problem for the existence of türkiye (oran, 2021, p. xi). dominance of kemalism in the identity structure of the republic of türkiye throughout its history has led to the denial of distinct kurdish identity, non-recognition of kurds as an ethnic minority, and consequently their disproportionate enjoyment of cultural rights internationally recognised for ethnic minorities and even now is a really serious challenge for realisation of these rights for kurds. this ideology and its consequent security approach toward minorities issue including kurds in türkiye has caused the lack of political will in turkish government to sign the un 1995 declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities the only state voted against which was türkiye. although enjoying special rights by minority groups is not dependent on the recognition of minorities by states, in practice, the will and act of state is necessary to full enjoyment of human rights including cultural rights by minorities and persons belonging to these groups. 4. solutions for eliminating the challenges facing the ensuring cultural rights of kurds in türkiye the solutions for eliminating these challenges can be strengthening the foundations and developing the sources of cultural rights of ethnic minorities, activating the national 8 for the full text of the constitution of the republic of turkey see https://global.tbmm.gov.tr/docs/ constitution_en.pdf http://10.17561/tahrj.v20.7329 https://global.tbmm.gov.tr/docs/constitution_en.pdf https://global.tbmm.gov.tr/docs/constitution_en.pdf mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 13 and international monitoring bodies and criminalising certain examples of violations of cultural rights and predicting effective sanctions. these solutions are discussed in the following sub-sections. 4.1. strengthening the foundations and developing the sources of cultural rights of ethnic minorities as was seen, weak international belief in cultural rights in general and cultural rights of ethnic minorities in particular is one of the main challenges to ensuring the cultural rights of the kurds in türkiye. the authors of the present article maintain that even the other existing challenges, more or less, are resulting from this negative view toward cultural rights of minority groups. being neglected nationally and internationally, cultural rights are not proportionally protected in national and international legislation. in other words, the sphere of cultural rights is facing with weakness in clarifying the foundations on the one side and shortage and even lack of sources on the other side. we believe that there is a direct and mutual link between strengthening human rights' foundations and development of their sources. that is to say, strengthening the foundations leads to development of sources in practice and developing the sources is one of the methods for strengthening human rights' foundations. in this regard, as it has been argued by taheri hajivand and jamali, dealing with the anthropological foundations of cultural rights as an integral part of the family of human rights is a necessity to draw the attentions to these rights. cultural rights are deeply rooted in the nature of human beings (taheri hajivand and jamali, september 2016, p. 83); so, it can be claimed that human beings are in need of culture that provides the cultural rights with a base to be realised as human rights. as one of the reasons behind the neglect facing cultural rights in general and cultural rights of minority groups in particular is related to their ambiguous normative content (fazaeli and karami, august 2020, p. 71), a way to strengthening the foundations of cultural rights of ethnic minorities is paying more attention to the normative content of these rights in national and international levels. human rights are an indivisible and interconnected collection the realisation of one of which is dependent upon the implementation of the others. in the same vein, cultural rights of ethnic minorities can be realised through implementation of their rights and claiming the observation of other human rights without implementing cultural rights of ethnic minorities would not be compatible with reality. establishing national human rights institutions, developing national plan of actions and promoting national educational programmes, are among the best methods to strengthening the foundations of human rights including those of cultural rights of ethnic minorities. in doing so, turkish human rights institutions should plan programmes to improve and promote the cultural rights of ethnic minorities and take appropriate measures in this regard including recommending surveillance of existing problems and violations and development of laws to the turkish authorities and government. human rights are among those fundamental issues the realisation, protection and promotion of which in a society is related to and dependant on its legal system (sha'bani, 2004, pp. 6-25). türkiye should protect the cultural rights of its ethnic minorities including kurds through appropriate and effective legislation. as yolacan states, "it is http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 14 unlikely that a permanent solution to the kurdish question shall be found without a new civil and democratic constitution. such a constitution, produced through a transparent and participatory process based on social agreement, should not include any references to any official ideology, should have as its aim the protection of individuals and not the state, should not mention any ‘unamendable principles’ other than democracy, rule of law and the protection of human rights, should use language that shall embrace and be comprehended by all social segments, and should adopt a notion of citizenship that acknowledges türkiye’s multi-cultural nature with no special emphasis on any ethnic, religious, sectarian, or linguistic identity. having inclusive language in the preliminary chapter acknowledging türkiye’s ethnic, religious, and cultural diversity as an asset, along with additional references to the eu’s copenhagen criteria, accession partnership document, and other human rights treaties to which türkiye is a signatory, shall help turn the constitution into a ‘social contract’ in literal sense. similarly, having a provision acknowledging the right to protection against discrimination, where minority is defined broadly to include anyone who is different from the majority due to some individual characteristic or preference, shall help fight discrimination that kurds and other individuals and groups confront in their daily lives" (yolacan, 2008, p. 17). measures of turkish governments as to cultural rights of minorities including kurds are limited to elimination of certain previous prohibitions and affirmative measures, if any, are rare in this regard. turkish authorities should provide the respect and promotion of cultural identity and cultural rights of ethnic minorities through enactment of protective laws and acts in the realm of, inter alia, linguistic rights and identity manifestations of minority groups. as was mentioned previously, türkiye has not signed and ratified the council of europe's framework convention on the protection of national minorities that is a leading instrument to protect and promote the rights of minority groups such as kurdish ethnic minority in türkiye. the authors are of the opinion that one of the effective and practical steps that the turkish state can take to realise and ensure the cultural rights of kurdish minority and show its goodwill and political will to peaceful settlement of the kurdish question to the kurdish people and international community is signing and ratifying this convention, accepting the protective regulations and mechanisms therein, and most importantly, observing them in practice. furthermore, the existing international norms as to cultural rights of ethnic minorities should be incorporated in the turkish national laws. as was mentioned, türkiye has ratified both 1966 international covenants. since international human rights instruments, besides introducing fundamental principles, oblige their state parties to take steps to apply the rights stipulated therein, another measure that can be taken by the turkish state for ensuring the cultural rights of kurds is conducting appropriate legal, judicial, budgetary and administrative in order to realisation of the maximum cultural rights internationally recognised for minorities in the covenants and specifically art. 27 of the iccpr and arts. 13 and 15 of the icescr. the role of the civil society in türkiye in proceeding the cultural rights of kurds should not be disregarded and underestimated. civil society that reflects the improvement of democratic institutions in the world, has had and can play an increasing role in public policies of the states. in particular, activity of kurd themselves in civil society as the real representatives of kurdish people in türkiye, http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 15 can pave the way for monitoring the status of kurds in enjoying cultural rights and the performance of the state in this field. the education system of the countries plays a pivotal role in proceeding and protecting human rights as long-term processes. human rights education is both a human right and a mechanism for stopping violence, establishing peace and promoting the development of and respect for human rights (eslami and behrouzikhah, february 2014, p. 7). moreover, there is a deep relation between media and human rights (navakhti moghaddam, 2005, p. 31). we believe that awareness-raising among individuals and groups of the mature and substance of human rights including cultural rights that is achievable through clarifying and strengthening the foundations of these rights, is one of the most significant solutions for realisation and promotion of cultural diversity and cultural rights. that is why awareness-raising processes as regards human rights play a notable role in promoting human rights culture and providing the required platforms for respecting and preserving human dignity. undoubtedly, mass media are of outstanding importance specifically due to their role in awareness-raising and dissemination of information that are based on human right to freedom of information. these media have dual significance in türkiye, since as was presented in the section regarding the challenges to ensuring cultural rights of kurds, dominance of kemalism based on turkification and domination of turkish ethnic group in the identity structure of the turkish state and turkish people is one of these challenges that has led to cultural intolerance among the turkish majority and the kurdish minority. in the literature on minority rights, relying on the value of cultural diversity, is along with the justification of peace and security and human dignity, an important avenue that is available when advocating for minority rights (quoted in: lajcakova, november 2010, p. 2). the underlying idea is that minority cultures are worth protecting per se; they have an intrinsic value. minority rights are necessary because they promote cultural diversity and protect the diversity of the cultural heritage (lajcakova, november 2010, p. 2). promoting cultural diversity and respecting cultural rights of minority groups fortifies cultural tolerance and peace in the multi-cultural societies. media should put emphasis on the intrinsic value of minority cultures and their entitlement to preservation and protection. turkish media including turkish governmental media and kurdish ones, while dealing with the different historical, ethnic, racial and cultural backgrounds of kurds and turks, should emphasise the equal and analogous value of kurdish and turkish culture and identity and thereby lay the foundations for cultural and political integrations in the country. measures should be taken at international level also to both strengthening the foundations and developing the sources of cultural rights. international organisations and organs pertaining to culture and cultural rights' affairs such as human rights council, un high commissioner for human rights, unesco and international non-governmental organisations and civil society can play a progressive and effective role in this regard. owing to the significance of cultural rights in maintenance of international peace and security as the main goal for the establishment of un, the un human rights council, through appointing the independent expert in the field of cultural rights in 2010 has put emphasis on the necessity for paying more attention to these rights that can play a remarkable http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 16 role in promotion of normative content of cultural rights and monitoring the performance of states in this area. in addition, the special rapporteurs of the human rights council regarding the situation of human rights in the countries address the status of cultural rights of minority groups in the related countries. preparing the fribourg declaration on cultural rights by the civil society comprised of distinguished international experts in the field of cultural rights can be considered as a sign for a better future for the realisation of cultural rights and their institutional improvement as well. the landmark general comment no. 21 of the committee on the economic, social and cultural rights (cescr) on the right of everyone to take part in cultural life of article 15 (1)(a) of the icescr and its positive aspects for safeguarding minority cultures is noteworthy in this regard9. putting emphasis on the indivisibility and interrelatedness of human rights, international bodies such as human rights council, human rights committee, cescr etc. the mandate of which is, less or more, connected and related to cultural rights should give a special and centric position to cultural rights in human rights discourse. the un programmes, funds and agencies dedicated to development as well as other governmental and non-governmental organisations should aim at clarifying the close link between economic-political development and cultural development specifically in vulnerable communities and groups such as minorities. it appears that concluding an international convention as to minority rights including their cultural rights that has always been among the main demands of these groups and can potentially play a fundamental role in preservation and promotion of the identity of persons belonging to minorities, is one of the best ways to universal realisation and recognition of cultural rights of minority groups. 4.2. activating the national and international monitoring bodies monitoring the implementation of human rights is a vital step in protection and promotion of these rights in international community, beyond the mere standard-making in the realm of human rights, is strictly in need of ensuring the implementation of and respect for rights of human beings (zamani, february 2006, p. 296). lack and weakness of mechanisms aimed at monitoring the respect for and promotion of cultural rights of ethnic minorities is another significant challenge to ensuring the cultural rights of kurds in türkiye. as stamatopoulou states, human rights protection through monitoring is the more intrusive arm of the international community aiming at protect human rights from governmental actions of omissions that violate them (stamatopoulou, november 2012, p. 1177). on this subject, it is noteworthy that in addition to their main task of monitoring the implementation of human rights by governments, international monitoring mechanisms have also contributed considerably to the interpretation of international human rights instruments and the progressive development of human rights norms. this has been particularly valuable in the case of cultural human rights, where human rights treaty bodies have clarified the normative content of these rights (stamatopoulou, november 2012, pp. 1178). these mechanisms can potentially play an effective role in combating and preventing the violations of human rights (mehrpour, winter 2007, pp. 7-42) including cultural ones. 9 for more information on the positive aspects of this general comment for safeguarding minority cultures and promoting their cultural rights see: (yupsanis, 2012, pp. 345-383). http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 17 among monitoring treaty bodies, ccpr and cescr are of a considerable significance for monitoring the cultural rights of ethnic minorities all around the world including kurds in türkiye. these committees are monitoring two instruments two articles of which namely art. 27 of iccpr and art. 15 of icescr are closely linked to cultural rights of minority groups. in spite of their quasi-judicial nature and non-binding character of their decisions for states, these committees can play a very effective role in encouraging and urging states to implement and protect cultural rights of ethnic minorities through reflecting the violations of cultural rights of ethnic minorities in international public opinion and employing "naming and shaming" as a tool and method. both at the conceptual and at the monitoring level, the committee on economic, social and cultural rights should demonstrate leadership in the area of cultural rights. the committee's contribution is indispensable, as it is the most appropriate international expert forum to carry out this analysis and sharing it with states, other international bodies and civil society. the committee should encourage the development of indicators and benchmarks in the area of cultural rights. it should convene a meeting and foster dialogue with other treaty bodies on the subject as well as with un minority-related mechanisms (stamatopoulou, 2007, pp. 251-252). it appears that the ratification of 2008 optional protocol to icescr by the turkish state can be potentially an appropriate step toward ensuring the effective fulfilment of cultural rights of kurdish minority. this new treaty mechanism permits individuals or groups of individuals to make complaints to the cescr, if they have exhausted domestic remedies and believe a member state has failed to observe its obligations under the covenant (our emphasis). it also provides for an optional inquiries procedure in cases of grave and systematic violations of covenant rights. accordingly, encouraging and urging türkiye to acceptance of the optional protocol could be a good assistance in monitoring the cultural rights of kurds internationally. extra-conventional mechanisms can and should play their parts in monitoring cultural rights of ethnic minorities as well. human rights council which has undertaken the protection and promotion of human rights all around the world should pay more attention to cultural rights in general and those of minorities including ethnic minorities in particular, specifically through its special rapporteurs. reflecting the situation of states as to observing the cultural rights of minority groups, special rapporteurs of the council can give the voice to voiceless and force the states such as türkiye to respect the cultural rights of their minority communities such as kurds. in this regard, the special rapporteur on minority issues that was establish by the commission on human rights in its resolution 2005/79 of 21 april 2005, and subsequently extended by the human rights council in successive resolutions is of particular importance. focusing on increasing the visibility and raising awareness of minority issues, particularly those related to cultural rights, the special rapporteur on minority issues is able to draw the attention of un institutions and member states, general public and other regional and international organisations to cultural rights of minorities thereby play a remarkable role in promotion of these rights for the mentioned groups10. 10 for more information about the special rapporteur on minority issues and specifically its reports to human rights council and the un general assembly see: https://www.ohchr.org/en/issues/minorities/ srminorities/pages/annual.aspx http://10.17561/tahrj.v20.7329 https://www.ohchr.org/en/issues/minorities/srminorities/pages/annual.aspx https://www.ohchr.org/en/issues/minorities/srminorities/pages/annual.aspx ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 18 the other actors that are expected to be influential in ensuring the rights of minority groups including their cultural rights are ngos that are aimed at protecting human rights, monitoring the compliance of states in fulfilling their human rights obligations and human rights education (askari and saeedi, winter 2016, p. 30). facing the lack of political will by and inaction of states to pay attention to the situation of human rights in other countries, these organisations can act as an alternative and contribute to protection and promotion of rights of individuals and groups globally. as stated by schinellbach, ngos may use their resources to alter public actors’ beliefs, ideas, cognitive frames and preferences. in the field of minority policy, ngos are more likely to opt for arguing than bargaining, with arguing aimed at changing the beliefs and preferences of decision-makers. information is not used in exchange for influence, but to convince public actors (schinellbach, december 2012, p. 501). these organisations, at both national and international levels, can monitor the implementation of cultural rights of kurdish minority in türkiye. for instance, amnesty international has played and continues to play a highly influential role in awarenessraising with respect to human rights issues including those related to minority rights and persons belonging these groups. for instance, amnesty international played an active and pivotal role in the process led to the release of mrs. leyla zana from prison who was imprisoned in 2002 for speak in kurdish at her inauguration as a member of the turkish parliament. furthermore, groups and institutions belonging to the civil society in türkiye as the monitors of the state policies as regards the minority groups in this country can utilise the national and international public opinions for ensuring and realising the cultural rights of the kurdish minority. participation of the representatives of the kurds in these groups and institutions as well as prediction of a special institution aimed at dealing with minority rights in türkiye that bridge these groups to the state is another way to ensure the cultural rights of kurds. 4.3. criminalising certain examples of violations of cultural rights and predicting effective sanctions since states have the primary responsibility for the protection and promotion of all human rights of people in their territories, including cultural rights, they should increase their attention to and action on these rights. first, states should act to implement cultural rights at the national level (stamatopoulou, 2007, p. 251). criminalisation of behaviours threatening these rights and freedoms and punishing the related perpetrators is considered to be a mechanism that should be employed to fulfil this obligation. the authors are of the opinion that criminalising certain examples of violations of cultural rights of ethnic minorities, both nationally and internationally, could be another solution to prevent the commitment of future violations and ensure the cultural rights of such groups including kurds in türkiye. as was previously stated, in contemporary international law, the criminalisation of genocide is limited to its physical and biological aspects and destruction of cultural and identity-related manifestations of the protected groups namely national, racial, religious and ethnic groups is not considered to be an example of genocide under international criminal law-related instruments such as 1948 convention on the prevention and punishment of the crime of genocide (genocide convention) and statutes of ad hoc international http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 19 criminal tribunals and international criminal court (icc). in other words, international criminal law has only protected the physical and biological existence of these groups and their cultural and identity existence is not protected under international criminal rules. as novic states, after 1948, international law primarily took the protective turn triggered by the universal declaration of human rights (udhr) rather than the criminal turn initiated by the genocide convention. this is particularly salient when it comes to the protection of cultures as encompassed within the 'cultural genocide' concept. despite its noninclusion in the genocide convention, the international community did not remain completely passive and gradually acknowledged the importance of cultures in relation to fully realising human rights and preventing the perpetration of mass atrocities, as argued by raphael lemkin in the early 1930s (novic, 2016, p. 96). reflecting on the definition of genocide in the present international law, one can understand that the motive of the perpetrators in committing such a crime against the protected groups is arising from the different character and identity of those groups. for instance, if an ethnic group being target of the crime of genocide had lacked those ethnic characteristics which make it distinct from the group to which the perpetrators of genocide are belonging and was similar to the late group in terms of culture and identity, genocide never would be committed. in fact, if the targeted group was not culturally distinct from the group the members of which had committed genocide, the commitment of genocide would not have been relevant at all. consequently, the main and primary reason to commit the physical and biological genocide is to destruct the distinct identity of the targeted group. in other words, genocide is an instrument not a goal in itself. however, due to the costly and time-consuming nature of destructing the culture, perpetrators of genocide that usually are supported by the state, tend to resort to physical and biological genocide. this means that only the way to commit genocide or its actus reus is changed and the psychological motive of the crime that is the main origin of the intent and mens rea of this international crime is untouched. as a result, we believe that deterrence as the ultimate goal of criminalisation of genocide in international law is not realised in its actual meaning. by deterrence here we mean the maximum elimination of malice aforethought that is not appeared to be realised with respect to genocide. it is noteworthy that according to bilsky and klagsbrun, the original conceptualisation of the crime of genocide, as presented by raphael lemkin, gave cultural genocide centre stage. in fact, lemkin thought that a new legal category was needed precisely because genocide could not be reduced to mass murder. the novelty of the nazi crime lay in the methodical attempt to destroy a group – well beyond typical war crimes and acts of repression. for lemkin, therefore, the essence of genocide was cultural – a systematic attack on a group of people and its cultural identity; a crime directed against difference itself (bilsky and klagsbrun, 2018, p. 374). while its character as a substantial right is questionable, identity has become an important object of concern in international human rights law, one which is likely to be strengthened and to guide the interpretation of the existing framework of protection of cultural rights. the conceptualisation of identity as a guiding principle of international human rights law thus echoes the concept of cultural genocide, by introducing the specificity of the harm caused by certain violations of human http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 20 rights, especially concerning the collective right to property over indigenous peoples' ancestral land (novic, 2016, p. 121). we believe that certain examples of grave violations of cultural rights of ethnic minorities such as destruction of cultural and identity-related manifestations through absolute prohibition of using mother tongue in public and private spheres and forced, systematic and widespread transfer of minority populations should be regarded as genocide and be criminalised in international criminal law. this can lead to the strengthening the foundations and development of sources of cultural rights both at national and international levels. if it is crystal clear that the icc may not exercise jurisdiction over offences which are not included in the statute, states may well introduce in their internal legislation crimes which are not included in the icc statute and pave the way for future changes to be proposed also with respect to the icc statute (frulli, 2011, p. 216). the states can speed up the incorporation of cultural genocide in the icc statute through criminalising the most serious violations of cultural rights of ethnic minorities and echo in in international circles and assemblies. imposing the individual criminal responsibility on the perpetrators, this can ensure the cultural rights of ethnic groups such as kurds in türkiye. it appears that certain acts committed already against kurds in türkiye can be considered as international crimes within the jurisdiction of icc. an act proposed by lemkin that was incorporated in the draft genocide convention and currently is stipulated in the final text of the convention and statutes of international criminal courts and tribunals and most importantly icc statute is "forcibly transferring of children of the [targeted] group to another group". one may argue that forced transfer of kurdish children from their homeland to turkish-populated regions in order to be trained in turkish language and acquisition of turkish culture and identity and, as a consequence, forgetting kurdish culture and identity can be regarded as an example of this act that has been called as killing children softly by amir (amir, 2015, pp. 41-60). discussing the physical violence against minority children, inter alia, kurdish children in türkiye, skutnabb-kangas states that this violence has been used to separate them from their parents and their own group, and punishing them for speaking their own language. she continues arguing that first of all the children were separated from their parents and their own group. schools were centralised in the areas where minorities lived. but even if these were sparsely populated or poor areas, which might have meant centralised schools for majority children, too, one can see the placing of minority children in different kinds of boarding school as a measure consciously aimed at assimilation. by isolating these children from their own groups the authorities prevented them from learning anything (or at least anything significant) about their own culture, history, language and traditions, their own values and characteristic occupations. they often felt strangers to their own culture and ethnic groups because they knew nothing of them. they no longer felt at home (skutnabb-kangas, 1987, pp. 308-312). from the establishment of republic of türkiye up to last years of the 1990s, many kurds were forced to leave their ancestral land that undoubtedly has an undeniable role in formation of minority groups' distinct culture and identity. according to jongerden, as part of its counter-insurgence operations, turkish armed forces evacuated and destroyed rural settlements on a large scale. according to official figures, 833 villages and 2,382 small http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 21 rural settlements, totalling 3,215 settlements, were evacuated and destroyed 14 provinces in the east and southeast, namely adiyaman (semsûr), ağrı (qerekose), batman (êlih), bingöl (çewlik), bitlis (bidlîs), diyarbakır (amed), elazığ (xarpêt), hakkari (julemerg), mardin (mêrdîn), muş (mûş), siirt (sêrtê), şırnak (şirnex), tunceli (dêrsim) and van (wanê). in these provinces, the total number of rural settlements (villages and hamlets) had been 12,737. in other words, around a quarter of all rural settlements in the eastsoutheast region of türkiye were emptied. numbers provided by the human rights association (hra) in türkiye and the kurdish human rights project (khrp) suggest that most evacuations occurred in the period 1991-1995, peaking in 1993-1994. the approximate number of settlements evacuated and destroyed is not really in dispute, but the number of people affected has been a subject of great controversy. government sources are extraordinarily precise. they report that 384,793 people were evacuated during the 1990s. human rights organisations, however, claim that türkiye deliberately presents low numbers to camouflage the magnitude of the displacement, and have estimated the number of displaced at as high as 3 to 4 million (jongerden, 2010, p. 79). we think that these acts can be considered "deportation or forced transfer or forcible transfer of population" as one of the acts that in accordance with art. 7 of the icc statute fall under crimes against humanity. para. 2(d) of this article reads: "(d) deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law". in accordance with the mentioned article, acts listed are crimes against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". it appears that all of these conditions are realised in deportation and forcible transfer of kurds by turkish authorities. another act that is provided for in art. 7(1)(h) of the icc statute is "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court". according to art. 7(2)(g), it "means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. some scholars are of the opinion that acts against cultural heritage during peacetime is persecution and fall under the category of crimes against humanity (frulli, 2011, p. 217) within the jurisdiction of the icc. it is worth mentioning that türkiye had had taken very adverse policies against historical-cultural heritage of kurdish minority up to 1990s. it appears that making turkish authorities accountable for these measures in international circles can play an important role in preventing similar future acts all around the world and strengthening the foundations of cultural rights specifically those of minority groups. to conclude, we are in agreement with stamatopoulou in her fantastic book that "for the sake of peaceful societies and peaceful relations among states, the vision of public http://10.17561/tahrj.v20.7329 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 22 policies should be away from sustaining, encouraging and creating myths of a cultural or "blood" purity of society, but rather focus on the re-shaping of national identities to include today's multicultural realities. in this era of increasing awareness about the need for preventive measures, it is likely that sooner rather later politicians shall have to deal with this issue, and international organisations should be able to assist in those processes. human development, in order to be sustainable, shall have to take place in a culturally respectful and relevant policy environment that addresses people's cultural rights. crucial as cultural rights are in the preservation or building peace and in development, they should not be viewed only in terms of their functionality in these crucial areas of each society. cultural rights should also be appreciated and respected as distinct human rights, as part of each person's and each group's humanity and integrity" (stamatopoulou, 2007, pp. 249250). in fact, respecting cultural diversity and its promotion has an outstanding role in the realisation of international peace and security (farrokhi and a'laie, september 2017, p. 179). furthermore, we maintain that taking a cultural approach towards human rights is not only a useful strategy in promoting human rights, but also a necessary step toward the fortification of a human rights culture around the globe. in other words, there is a need to ground human rights in culture. as stamatopoulou puts it in her paper, "grounding human rights in culture means listening to the local communities and peoples, dialoguing with the diversity of the world, and bringing the international/universal to the local. one of the best ways of doing that is by fostering genuine popular participation and by protecting and promoting cultural rights" (stamatopoulou, november 2012, p. 1192). accepting and respecting cultural diversity and protecting and promoting cultural rights of minority groups is a must-to-do for the realisation of multidimensional development and progress of multicultural societies. 5. conclusion no article has been written on the necessity of, challenges to and solutions for ensuring the crs of kurdish minority in türkiye in a single piece. addressing these factors from the perspective of crs as human rights, this article contributes in filling the existing gap in literature in this regard. the authors believe that taking a human rights approach towards the security issues such as the kurds’ in türkiye can be more effective in solving the tensions and reaching a peaceful agreement. cultural rights are an integral part of human rights which are universal, inalienable and interconnected. however, due to some reasons such as the link between these rights and the variable and fluid notion of culture, lack of political will by states and international society to deal with these rights, the perceived threat for nation-state and doubt in their human rights nature etc., cultural rights are less-developed in comparison to other categories of human rights. any individual, regardless of his/her group or social class, is entitled to enjoy cultural rights. enjoying cultural rights by persons belonging to minorities is of great significance, because their cultural rights is more susceptible to breach due to the vulnerable and non-dominant position of minority groups. consequently, paying attention to and recognition of cultural rights and taking special measures for persons belonging to minority groups seems to be necessary for preserving their human dignity. being in a non-dominant position, forming the one of the largest ethnic groups of türkiye numerically and sharing characteristics such as common language, culture, http://10.17561/tahrj.v20.7329 mostafa fazaeli, musa karami the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 23 history, cultural heritage and ethnic identity, kurdish population are considered to be an ethnic minority under the regulations and standards of international minority rights law and, as a consequence, are entitled to enjoy those rights recognised for ethnic minorities in international law including cultural rights. it appears that ensuring the cultural rights of kurdish minority in türkiye is a pressing necessity particularly in terms of both preserving cultural diversity as common heritage of humanity and maintain national, regional and international peace and security. furthermore, the main challenges to the ensuring cultural rights of kurds in türkiye seem to be the weak international belief in cultural rights, lack of sufficient national and international monitoring bodies and effective enforcing mechanisms, and ultimately, dominance of kemalism as the founding ideology of republic of türkiye. accordingly, the solutions for eliminating these challenges can be strengthening the foundations and developing the sources of cultural rights of ethnic minorities, activating the national and international monitoring bodies and criminalising certain examples of violations of cultural rights and predicting effective sanctions. no article has been written on the necessity of, challenges to and solutions for ensuring the crs of kurdish minority in türkiye in a single piece. addressing these factors from the perspective of crs as human rights, this article contributes in filling the existing gap in literature in this regard. the authors believe that taking a human rights approach towards the security issues such as the kurds’ in türkiye can be more effective in solving the tensions and reaching a peaceful agreement. for the sake of peaceful societies and peaceful relations among states, the vision of public policies should be away from sustaining, encouraging and creating myths of a cultural or "blood" purity of society, but rather focus on the re-shaping of national identities to include today's multicultural realities. in this era of increasing awareness about the need for preventive measures, it is likely that sooner rather later politicians shall have to deal with this issue, and international organisations should be able to assist in those processes. human development, in order to be sustainable, shall have to take place in a culturally respectful and relevant policy environment that addresses people's cultural rights. crucial as cultural rights are in the preservation or building peace and in development, they should not be viewed only in terms of their functionality in these crucial areas of each society. cultural 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(25 november 2010). ‘exploring cultural diversity as a justification of minority rights in the context of slovakia’. paper presented in seminar on http://10.17561/tahrj.v20.7329 https://jlr.sdil.ac.ir/article_32615.html https://jlr.sdil.ac.ir/article_32615.html http://www.thdad.ir/article_186590.html?lang=en http://www.thdad.ir/article_186590.html?lang=en https://dx.doi.org/10.22054/qjpl.2017.11166.1262 https://jlr.sdil.ac.ir/article_111300.html https://jlr.sdil.ac.ir/article_111300.html https://doi.org/10.1093/ejil/chr002 http://ensani.ir/file/download/article/20160712134511-10062-13.pdf http://ensani.ir/file/download/article/20160712134511-10062-13.pdf https://doi.org/10.4000/etudesrurales.9241 https://lawresearchmagazine.sbu.ac.ir/article_56223.html https://lawresearchmagazine.sbu.ac.ir/article_56223.html https://doi.org/10.1163/18757413-90000007 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 26 heritage for the future, budapest, bulgaria 2. available at: http://cvek.sk/wpcontent/uploads/2015/11/lajcakova_heritage_for_the_future.pdf luoma, c. 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(december 2012). ‘the role of ngos in promoting minority rights in the enlarged european union’. perspectives on european politics and society, 13(4), pp… sha'bani, q. (2004). constitutional law and the sovereignty's structure of islamic republic of iran. tehran, ettela'aat publication. [in persian] skun\tnabb-kangas, t. (1987). bilingualism or not the education of minorities, translated by l. malmberg and d. crane, bristol: multilingual matters limited. stamatopoulou, e. (2007). cultural rights in international law; article 27 of the universal declaration of human rights and beyond. leiden: martinus nijhoff publishers. stamatopoulou, e. (november 2012). ‘monitoring cultural human rights: the claims of culture on human rights’. human rights quarterly, 34(4), pp. 11701192. doi: https://doi.org/10.1353/hrq.2012.0065 svanidze, m. 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(2008). a roadmap for a solution to the kurdish question: policy proposals from the region for the government. translated from turkish into english by: n. ayan, istanbul: turkish economic and social studies foundations (tesev) publications. http://10.17561/tahrj.v20.7329 https://doi.org/10.1353/hrq.2012.0065 https://www.sid.ir/fa/journal/viewpaper.aspx?id=309169 https://doi.org/10.22083/jccs.2019.203520.2920 https://dx.doi.org/10.11610/isij.3305 https://dx.doi.org/10.11610/isij.3305 https://doi.org/10.35859/jms.2021.976874 https://doi.org/10.35859/jms.2021.976874 ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions the age of human rights journal, 20 (june 2023), e7329 issn: 2340-9592 doi: 10.17561/tahrj.v20.7329 28 yupsanis, a. (2012). ‘the meaning of culture in article 15 (1) (a) of the icescr – positive aspects of cescr's general comment no. 21 for the safeguarding of minority cultures’. german yearbook of international law, 55, pp. 345-383. https://www.jstor.org/stable/j.ctv1q69ns4.13 zamani, s. g. (february 2006). ‘universal monitoring on compliance with human rights: from un human rights commission to council of human rights’. journal of legal research, 5(9), pp. 295-314. https://jlr.sdil.ac.ir/article_44513. html [in persian] received: august 4th 2022 accepted: march 12th 2023 http://10.17561/tahrj.v20.7329 https://www.jstor.org/stable/j.ctv1q69ns4.13 https://jlr.sdil.ac.ir/article_44513.html https://jlr.sdil.ac.ir/article_44513.html ensuring the cultural rights of kurdish minority in türkiye: necessity, challenges, solutions abstract summary 1. introduction 2. grounds for necessity of ensuring the cultural rights of kurds in türkiye 2.1. preservation and promotion of cultural diversity as common heritage of humanity: the intrins 2.2. maintaining national, regional, and international peace and security: the instrumental goal 3. challenges to ensuring the cultural rights of the kurds in türkiye 3.1. weak international belief in cultural rights 3.2. lack of sufficient national and international monitoring bodies and effective enforcing mech 3.3. dominance of kemalism as the founding ideology of republic of türkiye 4. solutions for eliminating the challenges facing the ensuring cultural rights of kurds in türki 4.1. strengthening the foundations and developing the sources of cultural rights of ethnic minori 4.2. activating the national and international monitoring bodies 4.3. criminalising certain examples of violations of cultural rights and predicting effective san 5. conclusion references first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 1 first ngos in the league of nations: lessons to be learned carmen rocío garcía ruiz1 abstract: although international law was originally conceived as a law created by and for states, individuals have struggled since its inception to make their voices heard and influence its rules, using their ability to associate with others and their position as members of public opinion. this article analyses the formation of the first private associations and focuses on the regulation of their status before the league of nations, concluding that both their way of acting and the obstacles they faced are still relevant today. in doing so, it invites reflection on how best to address a longstanding dilemma: whether or not to formally regulate their status. keywords: ngos, international law, associationism, anti-slavery movement, peace movement, league of nations, ngo subjectivity. 1. introduction the revolutions that marked the 18th century consolidated the idea of individual rights, and gradually, rights such as equality, freedom of religion, and freedom of expression were incorporated into constitutional documents. individuals thus began to become aware of their rights and the need to fight for their defence. reinforced by the historical context, they then sought association with others, inside or outside their borders, as a way to meet their own needs. associations began to proliferate that either sought to defend the economic and professional interests of their members or to propagate and fight for their ideologies. the evolution of the very concept of international law, as well as the process of humanisation that has taken place within it, has resulted in a greater acceptance and development of this interest in individuals, who have been able to harness the resources at their disposal and enhance their importance. similarly, the increasing importance of public opinion has been a significant factor in improving the effectiveness of actions by associations of individuals and non-governmental organisations. their influence on the development of international norms has grown stronger over the years, to such an extent that it is possible to say that international law as we know it today would be substantially different without their intervention (garcía ruiz, 2007). this process began in the late eighteen century, and it is particularly instructive to study it to understand their current reality, their position, in many cases, as necessary collaborators with the system, and the obstacles posed by their unique status. 1 profesora contratada doctora, universidad loyola andalucía (cgarciar@uloyola.es). https://orcid.org/00000002-2698-543x https://doi.org/10.17561/tahrj.v24.9263 mailto:cgarciar@uloyola.es https://orcid.org/0000-0002-2698-543x https://orcid.org/0000-0002-2698-543x first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 2 2. the creation of the first associations of individuals: the fight against slavery and the peace movement it can be argued that the will of the individual has been consistently disregarded and undervalued for centuries. at the domestic level, they were, in many respects, subject to the ruling authorities, without the ability to determine fundamental aspects of their personhood, while the limited regulation in effect at the international level was primarily concerned with states. it was not until the nineteenth century that a combination of different factors gave individuals a greater ability to act. until then, they only sporadically came together to fight for a cause. industrial revolutions, the development of transport and communications, the movements of populations, capital and goods, and the pursuit of new markets all contributed to creating an economic system that transcended national units (lyons, 1963, p. 9). this new phenomenon of internationalism, initially economic in nature, gradually expanded to different spheres and made states aware that it was necessary for them to coordinate and cooperate with one another in order to improve those sectors. this led to the emergence of the first associations between states, known as international organisations. additionally, the revolutions that characterised the eighteenth century consolidated the idea of individual rights, and rights such as equality, freedom of religion, freedom of expression, etc., were gradually incorporated into constitutional documents. individuals thus began to become aware of their rights and the need to fight to protect them. while states concentrated on purely political exchanges (stosic, 1964, p. 10), relegating cultural, scientific and social needs to the background, individuals—fortified by the historical context—began to pursue associations with others, inside or outside their borders, as a way to mitigate this shortcoming and meet their own needs. associations thus began to proliferate in trade, finance, science, education, culture, etc. basically, these first associations had two primary objectives: to protect the economic and professional interests of their members or to advocate and fight for their ideologies (stosic, 1964, p. 11). within this latter group, our analysis focuses on those that sought to protect the rights of individuals, regardless of whether or not they were a member of the association. it was understood that the fight for this protection should not end once it had been guaranteed to the members of the association but should instead continue as long as it was not a reality for all people. as such, we will analyse organisations engaged in a two-fold fight, i.e., against slavery and for peace, setting aside the trade union movement that flourished beginning in the nineteenth century, given that the interests of an association’s members decisively—albeit not exclusively—determined its action. as davies points out, the growth and influence of non governmental organisations (ngos) has not been linear, but has been influenced by political, economic and social factors (davies, 2013). 2.1. the fight against slavery it is estimated that over the course of five centuries—from the fourteenth to the nineteenth century—some ten million men, women and children were transported from their place of origin and used as commodities in the slave trade (aga khan et al, https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 3 1986, p. 1). this practice was a blatant violation of the most basic human rights and elicited a reaction from those who were beginning to be concerned with their protection (truyol y serra, 1998, p. 77). in 1783, a group of quakers created the “anti-slavery society”, which would be responsible for a body of literature attacking slavery and, in particular, the conditions of those enslaved by the british trade. prior to the founding of this organisation, there had been cases where groups of citizens mobilised against slavery. for example, in 1641, it was the efforts of a group of individuals in the english colony of massachusetts that led to the creation of the “body of liberties”, which prohibited slavery in that colony with two exceptions: slaves who had been enslaved for a just cause and foreigners who had sold themselves for economic reasons. similarly, in rhode island, other groups of citizens pushed for a law banning lifelong slavery and mandating that the children of slaves would be freed at the age of 24. (nchama, 1991, p. 54). some authors refer to “the pennsylvania society for promoting the abolition of the slavery”, founded in 1775 in pennsylvania, as the first anti-slavery society. (charnovitz,1997, p. 193). in 1787, the society joined with other individuals and together they established the “society for the abolition of the slave trade”, which began a campaign to outlaw the slave trade in british territories, particularly those of the east india company. the presence of this association in the british parliament was embodied in the figure of william wilberforce, a member of parliament who acted as a representative of the organisation’s demands (nchama, 1991, p. 56). thanks to his efforts, a motion for the abolition of the slave trade was tabled in the house of commons in 1796, and the british slave trade was abolished in 1807. once this had been achieved, the attention of the abolitionist movement turned in two directions: first, it focused on the situation in the united states, where organisations with this aim began to appear; and at the international level, the society wanted to be present at the congress of vienna in 1815, which debated a range of issues and considered submissions from private organisations (thepchatree prapat, 1985, p.36). the issue of slavery was so debated at length and, on 8 february 1815, culminated in the adoption of a declaration by the powers involved—austria, spain, france, great britain, portugal, prussia, russia and sweden—which considered the slave trade to be contrary to the principles of humanity and general morals (truyol y serra, 1998, p. 100). this international prohibition was reiterated at the congress of aix-la-chapelle in 1818 and the congress of verona in 1822. the first step had been taken in the fight against slavery: the prohibition of the trade. this proved insufficient, however, and there continued to be slaves, particularly in the colonies, whose leaders denied them the ability to be citizens with the acquiescence of the british government, which was reluctant to intervene in their internal affairs (archer, 1967, p. 163). the movement, which began by focusing on the fight against the slave trade, had to be gradually transformed to adapt to this reality, until it became an antislavery movement in its own right. according to certain authors, it was a genuine human rights movement, in that it addressed abuses in different parts of the world, under different rulers, and was motivated by a sincere concern for the rights of individuals. https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 4 in 1823, an important new organisation was established: “the british and foreign anti-slavery society”. at the same time, a campaign was undertaken at different levels, with the circulation of pamphlets, weak calls for action by some newspapers and frequent lobbying in parliament by a delegation from the society2. in parallel, action between local, regional and national organisations in the united states and great britain began to be coordinated through the exchange of letters, publications and visits, and the creation of common fora where they discussed actions to be taken. in 1833, the prime minister would agree to enact a law for the abolition of slavery in the british empire, which would come into effect on 31 july 1834 (keck et al., 1998, p. 44). the abolitionist movement was growing stronger; in 1838, in the united states alone, there were some 1,350 societies and 120,000 to 250,000 members. one of the strategies resulting from the connection between the british and american societies was known as information politics, the aim of which was to promote change through factual information. different publications appeared, the most important of which were “american slavery as it is: testimony of a thousand witness”, which sold one hundred thousand copies in its first year, and “uncle tom’s cabin”, which in 1852 sold one million copies in great britain alone (keck et al., 1998, p. 47). in 1839, the “anti-slavery society” was formally established, and seven years later, it consolidated with “the aborigines protection society”, becoming the leading voice of the cause. but the abolitionist movement did not stop with these domestic actions; as early as 1815, with the congress of vienna, it sensed its importance as a means of putting pressure on governments. accordingly, not only was it present with delegates at various international conferences, but in 1840 and 1843, it organised and held conventions in london, which were attended by delegates from numerous countries. the convention of 1840 was intended to strengthen the ties between the british and american societies, but in reality, it also revealed the differences between them3. nevertheless, most of the literature agrees that this convention paved the way for the agreement between the great european powers a year later, when they signed the treaty of london, under which austria, france, great britain, prussia and russia recognised a reciprocal right of access to ships suspected of being involved in the slave trade. 2 in this regard, it is necessary to mention the role played by prominent individuals in official positions, forced to balance their moral principles against slavery with the political and economic realities of the empire: officials in the slave trade department of the foreign office: their job was to negotiate treaties, oversee their implementation and coordinate international efforts to combat the slave trade. their commitment and diligence were instrumental in advancing the abolitionist agenda at the diplomatic level. judges and commissioners of the joint commission tribunals: established by bilateral treaties, these tribunals were composed of judges and commissioners from different nations. their function was to try cases of captured ships involved in the slave trade. the integrity and determination of these individuals were essential to ensure that slave traders were prosecuted and that freed slaves received protection. (hamilton et al., 2009). 3 the decision of the british majority not to accept women as american delegates and to treat them as mere spectators sparked outrage from the american delegation. (keck et al., 1998, p. 46). the suffragette movement would later consider this to be a decisive event in the origin of their fight. https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 5 the influence of the “anti-slavery society” extended to the push for the ratification of different conventions that abolished slavery in africa in the 1880s. the general act of the berlin conference on west africa of 26 february 1885 and the general act of the first brussels conference of 1889 can be mentioned in this regard. both, however, are characterised as mere declarations of intent. as such, the second brussels antislavery conference on 2 july 1890, held at the behest of the “anti-slavery society”, is particularly significant, as its general act establishes—for the first time—means for effectively enforcing its provisions by creating a permanent body, “the international slavery bureau”, responsible for the control and surveillance of the red sea and indian ocean area (korey, 1998, p. 118)4. as peter archer has observed: “this was a classic case of a reform instituted by governments through the pressure of unofficial organizations” (archer, 1967, p. 164). 2.2. the fight for peace prior to the 18th century, a fatalistic view prevailed that regarded war as an inevitable phenomenon beyond human control. from the 1730s onwards, however, this perspective began to be challenged, leading to a debate about the possibility of preventing war (ceadel, 1996). in the wake of the napoleonic wars, citizens in different parts of the world began to question and debate the very existence of war, becoming convinced of the need to fight for peace. these citizens gradually came together and created organisations with this aim. america and england were the stage for their creation, nearly simultaneously and independently in 1815 and 1816. the first three organisations were created in the united states in 1815, within a period of five months and without any coordination between them: the first, the “new york peace society”, was founded on 16 august in new york by some twenty men led by david dodge, with the aim of promoting peace; on 2 december, two friends formed the “society for the promotion peace” in ohio; and on 28 december, noah worcester established the “massachusetts peace society” in boston. those same aims—but once again without any awareness of the others’ existence—were the driving force behind the creation of the “society for the promotion of permanent and universal peace” in 1816 in england by a group of quakers (whitney, 1972, p. 10). in 1828, in the interest of greater effectiveness, the three american societies mentioned above decided to consolidate, resulting in the “american peace society” (lange, 1926, p. 366). all of them, established independently in two countries, shared common problems and characteristics: i.religious origin: as in the case of the fight against slavery, quakers were at the forefront of this peace movement. two of the american societies and the english 4 despite these efforts, miers notes that slavery and similar practices continued in various parts of the world, adapting to new forms and contexts. his analysis underlines the complexity of completely eradicating these practices and the need for continued and adaptive vigilance on the part of the international community (miers, 2003). https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 6 society were founded by members of this ideology, influencing the characteristics and expansion of these first organisations. although they claimed to be non-sectarian and open to all christians, there is no question that their beliefs shaped these first organisations, embroiling them in a dilemma that sparked numerous debates and conflicts. quaker doctrine is characterised by a line of thought based on non-resistance, i.e., they believe that all war is incompatible with christian thought, including defensive warfare. christians, however, although they maintain this opposition to war, believe that it is justified in certain circumstances (lyons, 1963, p. 310). this divergence limited the growth of these first organisations, caused serious disagreements within the “american peace society” and led to the creation of new organisations with the same aim but a different starting point. ii.methods of action: the primary instrument available to these organisations was publicity. they held meetings, usually on an annual basis, at which they examined their objectives and designed the strategy to be followed, a strategy that basically consisted of intensive propaganda and publicity campaigns. the central idea was to fight for the development of a general feeling in favour of peace, and it was therefore essential to expand the movement by creating new organisations and making it more widely known to the general public. with regard to the former, it is estimated that in 1820, there were some one hundred organisations in england and thirty-three in the united states. the activity carried out by these organisations led to the creation of the “société des amis de la morale chrétien et de la paix” in france in 1821 and the “geneva peace society” in switzerland in 1830. as for their attempts at outreach, different methods were put into practice. the distribution of pamphlets became one of their hallmarks, but as the movement grew, there was a need for greater sophistication, and thus, two newspapers were born: the british “herald of peace” in 1818 and the american “harbinger of peace” (later “advocate of peace”), which became the main propaganda vehicles of the peace movement during the nineteenth and early twentieth centuries (lyons, 1963, p. 311). iii.objectives: it can be argued that the fight for peace waged by these societies has two aspects: in a negative sense, a not-doing, the rejection of participation in war; and in a positive sense, the pursuit of alternatives to confrontation (lyons, 1963, p. 310). the idea of bringing disputes between states to the courts rather than settling them on the battlefield began to tentatively emerge in the late eighteenth century and was present in the pamphlets and actions of the american peace societies, one of the principal objectives of which was “to increase and promote the practice already begun of submitting national differences to amicable discussion and arbitration”, as was stated by william lad, one of the architects of the consolidation of the three american organisations into the american peace society (lyons, 1963, p. 310). as a precedent for the implementation of this idea, they invoked the jay treaty of 1794, by which the united states and great britain agreed to have their disputes settled by the binding decisions of an arbitration commission. over time, advocating for the use of arbitration in the event of disputes between states became one of the primary rallying points of the movement. https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 7 apart from independent and individual actions5, the organisations began to see the need for dialogue among themselves in order to improve the functioning of the cause, which led to the need to hold congresses involving members of the movement: what became known as peace congresses. we are referring to the congress of london, 1843; congress of brussels, 1848; congress of paris, 1849; congress of frankfurt, 1850 and congress of london of 1851; and in 1853, two congresses were held in manchester and edinburgh following the same approach as the one held in london in 1851, highlighting the crisis that was being experienced by the movement. all this was set against the historical backdrop of the crimean war, the end of which was determined by the paris peace congress in 1856. two of the english members of parliament who had led and acted as spokesmen for the peace movement in the british parliament, bright and cobden, pressed for including a clause in the peace treaty that provided for recourse to arbitration. as a result, the british representative, backed by the work that a committee of the society had been carrying out in paris, presented the issue to the conference, leading to protocol 23, which established “that states between which any serious misunderstandings may arise, should, before appealing to arms, have recourse, so far as circumstances might allow, to the good offices of a friendly power” (lyons, 1963, p. 320). it can be argued that the paris peace congress closes a first cycle in the evolution of these peace societies, known as the first peace crusade (beales, 1931, p. 85), full of successes and mistakes. the movement’s weaknesses were many and decisively determined its evolution. the first of them is based on their conception of international relations. the state was seen as a mere extension of the individual, and they therefore claimed that “the intercourse between countries is nothing but the intercourse between individuals in the aggregate”, as stated by cobden in 1849 (beales, 1931, p. 85). this lack of understanding of the complexity of international life and the characteristics of the state deprived the movement of a vision of reality undistorted by excessively utopian pretensions. it was also not possible to overcome the differences arising from their religious origin. first, there was no consensus on the recourse to war, and disagreements persisted over whether the movement should adopt a total opposition to war or whether it should be accepted as a necessary evil in certain circumstances. second, although the societies claimed to be non-sectarian and open to all religions, they nonetheless ignored other religions and alleged that their own was the sole basis for universal peace. the movement focused on raising public awareness, an objective that both positively and negatively determined its importance, negatively insofar as it did not consider governments among the targets of its pressure, which made it impossible for 5 in 1841, in manchester, fearful of an imminent war, citizens sent numerous resolutions and letters to the french government calling for an amicable solution. https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 8 it to have a greater presence in international life. however, this obstinate focus on the public succeeded in creating a state of opinion in favour of peace as well as a greater awareness than had hitherto been achieved by the religious minorities that monopolised pacifism (lyons, 1963, p. 318). on the positive side, the movement created a substantial body of literature on a range of issues in an attempt to promote its programme of action, advocating for the reduction in armaments, the codification of international law as the basis for decisions made by an international tribunal, and in particular the need for alternative means of settling disputes, with an emphasis on the viability of recourse to arbitration as an alternative to war. this idea had a broad impact, and from 1794 to 1854, fifty states settled their disputes in this manner (beales, 1931, p. 93). as lyons has observed, “it would of course be too much to attribute this solely, or even mainly, to the activities of the peace enthusiasts, but it cannot be denied that they had done much to make the idea familiar and palatable” (lyons, 1963, p. 318). it was not until 1867 that there was a revitalisation of the movement, or a second peace crusade, characterised by the creation of new peace societies. paris, london and geneva were at the centre of this new wave. in paris, the “ligue de la paix” and the “societé francaise de l´arbitrage entre nations” were created, while in geneva, charles lemonnier founded the “ligue internationale de la paix et de la liberté”, which focused on finding ways to implement and enforce international law. one of its branches was established in london by randal cremer, who introduced the movement to the working classes—from which he himself had come—when he founded the “workmen’s peace committee” three years later (subsequently transformed into “the international arbitration league”). the action of randal cremer and fréderic passy was crucial to the evolution of the movement; aware of their privileged position as members of parliament, they decided to revisit an idea that had previously been discussed and jointly organise a meeting of french and english members of parliament, which took place in paris on 31 october 1888 and was the spark for the first interparliamentary conference, held in paris in 1889. the main objective of the meeting was to make the members of parliament in attendance aware of the need to pressure their respective governments to sign binding arbitration treaties, as well as launch a campaign for the inclusion of an arbitration clause in all trade treaties6. this coming together of members of parliament can be understood as a new aspect of the movement. while the first phase had been hampered by the scant attention given to governments, this second crusade was characterised by a more practical vision of the international reality, focused on making the ideas that had previously been developed more concrete and putting them into practice, for which it was necessary to place pressure on governments, the ultimate architects of international law. this pressure could be applied at two levels: from the inside, through the presence of members of parliament involved in the movement in decision-making bodies; and from the outside, through the peace congresses that characterised the first stage of the movement and helped to raise public awareness. 6 it was attended by 96 delegates from france (55), great britain (30), italy (5), belgium (1), denmark (1), the united states (1), spain (1), hungary (1) and liberia (1). (lyons, 1963, p. 318). https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 9 we therefore prefer to speak of two complementary approaches that contributed to giving the movement a greater and more effective presence in international life. the reason for this is that while the peace congresses were concerned with discussing and developing abstract ideas on international justice, the interparliamentary conferences sought to avoid utopian excesses and debated how to put less pretentious ideas into practice, as well as how to embark, step by step, on the path towards achieving those general objectives. thus, as lyons observed, “one was essentially political, the other essentially propagandist; one practical, the other idealistic; one limited in scope, the other wide ranging” (lyons, 1963, p. 329). almost simultaneously with the interparliamentary conference, the first of a series of congresses that would shape the end of the nineteenth century and the beginning of the twentieth century was held in paris7. all of them have common characteristics that could be grouped as follows: a.attendees: delegates were appointed by religious societies and organisations, engaged in working towards peace or arbitration, as well as individuals who, without belonging to the societies sending delegates, were particularly interested in this subject. b.procedure: the congresses usually lasted about three days and involved the convening of thematic sections and committees and discussions of the presentations made. these discussions resulted in the adoption of resolutions on the issues for which there was a final consensus. typically, the issues that were the focus of both debate and agreement were the insertion of arbitration clauses in international treaties, the establishment of a permanent international tribunal and disarmament (whitney, 1972, p. 170). as early as 1889, the connection between the interparliamentary conferences and the peace congresses—held simultaneously, in both time and place—became apparent. notably, in 1892, the movement became a permanent organisation, through the creation of the “international peace bureau”. with both types of congresses being held almost annually, the nineteenth century came to a close8. both those first anti-slavery associations and this peace movement naturally laid the foundations for their actions on pillars that have stood the test of time: the need for coordination between them, promotion of their actions in order to engage the general public, presence at international conferences and the pursuit of effective methods to put pressure on governments. 7 a total of twenty-four congresses were held between that date and 1926. the one in paris was followed by congresses in london, 1890; rome, 1891; bern 1892; chicago, 1893; antwerp, 1894; budapest, 1896; hamburg, 1897; paris, 1900; glasgow, 1901; monaco, 1902; rouen, 1903; boston, 1904; lucerne, 1905; milan, 1906; munich, 1907; london, 1908; stockholm, 1910; geneva, 1912; the hague, 1913; luxembourg, 1921; london, 1922; berlin, 1924; and paris, 1926. 8 by the end of the nineteenth century, both peace congresses and interparliamentary conferences were beginning to be institutionalised, establishing permanent bodies. additionally, there were some 425 organisations worldwide. according to beales, these organisations tended to consolidate in germanic countries and to multiply and become independent in latin countries, while anglo-saxon countries opted for the federation of their local organisations. (beales, 1931, p. 242). https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 10 3. relationship of non-governmental organisations with the league of nations in the early twentieth century, private organisations continued to grow not only in number but also in terms of their objectives, broadening their field of action. accordingly, while some 132 organisations were founded during the course of the nineteenth century, within just twenty years—in the period from 1900 to 1919—some 140 private organisations were created (chavez-pirson, 1991, p. 6). furthermore, a wide range of factors contributed to a gradual transcending of borders and to an awareness of the need to establish connections between states in order to achieve objectives of a primarily economic, scientific or technical nature. it is in these spheres that the role of non-governmental organisations and their relationship with international organisations can clearly be observed. this is because non-governmental organisations were often instrumental in the creation of certain international organisations. this influence was exerted in two primary ways: i.non-governmental organisations taking the initiative to launch campaigns calling for the creation of an international organisation in a given sphere, as was the case with the establishment of “the international union for the protection of industrial property”, “the union for the protection of literary and artistic work”, “the international relief union”, and “the international institute of agriculture”. ii.transforming what had started out as a non-governmental organisation into an international organisation, as was the case with “the international bureau of education”, “the international sugar office” and “the international tin committee” (cromwell-white, 1968, p. 245). the relationship between international organisations and private organisations was decisively established with the creation of the league of nations, which was intended to be a decision-making centre and a forum for discussion between states on issues of international importance; private organisations were well aware of its importance and, as we shall see, endeavoured to play a role in its functioning. 3.1. birth of the organisation: the contribution of non-governmental organisations following the second hague conference, the efforts of the peace movement focused on preparing for the upcoming third conference and developing the provisions established. along these lines, it is important to mention the work done by the universal peace congress held in london in 1908, which laid the foundations for a “league of nations”, which they understood required the creation of a legislative council to draft a code of international law, a judicial authority to supervise it, an executive council to oversee common interests and a reduction in armaments (beales, 1931, p. 274). all the good intentions of the peace movement lacked any effective implementation. thus, although numerous arbitration treaties were reached between states, they were https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 11 essentially bilateral in nature and failed to institutionalise arbitration as a compulsory means of settling disputes, which made it very difficult to maintain peace in a political situation beset by confrontations. nor had the idea of disarmament become a reality, which meant that states had not only the will, but also the ability to move towards war. this inevitably erupted in 1914, and like all the other sectors of reality, the peace movement was engulfed in its dynamics. the small steps taken earlier, the pressure it had begun to exert and its excessive triumphalism were silenced by the demands of the new world war, the ultimate expression of its defeat. many of the objectives that had inspired the movement’s actions in the preceding years were rendered meaningless, and it shifted from seeking to exert as much influence as possible on states to essentially fighting for its own survival. some of the foundations of the movement’s strength, such as cooperation between countries or the belief in the achievement of certain ideals, were superseded by the reality and the frustration it caused. as a result, there was a change in the way the movement acted as well as in its objectives. with regard to the former, it was particularly difficult to maintain the level of coordination between organisations in different countries that had previously been achieved, as it was practically impossible for the organisations to continue their activities9. international congresses were no longer the rule but the exception. hence the merit of the one held in 1915 in the hague, which brought together pacifists from many countries and drafted what is known as the “minimum programme for a lasting peace”, which included arbitration as a means of settling disputes, the creation of a permanent court of international justice, a reduction in armaments and work by peace conferences towards the peaceful organisation of the league of nations. the aims of the movement therefore evolved in an attempt to respond to the needs of the time, whereby emphasis was placed on two main points: first, to raise public awareness that the peace treaty to end the conflict should be dictated by reason rather than rancour; and second, the need to create a league of nations as a way to prevent a new conflict (beales, 1931, p. 279). of particular importance in this regard was the work carried out by the “international league of women for peace and liberty”, created in 1915 by a congress that brought together some eleven hundred women from twelve countries, focusing its debates on the pursuit of solutions for the establishment of a lasting peace10. its resolutions were communicated to governments and had a particular impact on 9 despite these difficulties, a number of organisations were created in 1914, such as “the union of democratic control”, in great britain, which was predominantly national in character, the “league to enforce peace” in the united states, and “l´anti-oorlog-raad” in the netherlands. (lange, 1926, p. 414). the organisations based in neutral countries found it easier to continue their activities. 10 this organisation was part of the international suffragette movement, which had its origins in women’s involvement in the anti-slavery movement in the united states and great britain. the british refusal to allow women to participate in the world conference of 1840 prompted the convening of the meeting held in 1848 in seneca falls, new york, which passed a resolution in favour of universal suffrage. “the international women suffrage association” (iwsa) was founded in 1904 and launched a campaign with this aim. different trends shaped the international suffragette movement, developed within the “world’s women’s christian temperance union”, the second socialist international, the “international council of women” and the “suffragettes”, which advocated for civil disobedience. international connections between the different branches of the suffragette movement contributed to the exchange of ideas, tactics and strategies. (keck et al., 1998, p. 51-58). https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 12 some of them, such as the american, with the approval of its president, wilson, who went so far as to state “i have studied these resolutions and i consider them the best proposals that have been formulated by any association”. many of these resolutions inspired wilson’s 14-point programme, which envisaged the creation of a league of nations, as stated in its final point: “a general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike”. (beales,1931, p. 281). one of the most significant legacies of women’s involvement in the league of nations was the solidification of transnational feminist networks within global politics. although women were largely confined to humanitarian and social roles, their participation helped establish feminist internationalism as a political force on the world stage. women’s participation in the league set a precedent for cooperation across national borders, enabling a more organized feminist movement in the post-war period. although the league of nations did not grant women prominent roles in high-level diplomacy, their contributions had a lasting impact on how humanitarian and social issues were addressed in international politics such as creation of structures to address social and gender issues: women’s involvement in areas such as human trafficking, labour rights, and public health laid the foundation for institutional mechanisms within future international organizations to tackle these issues or the redefinition of internationalism (sluga, 2013). as early as the outbreak of the first world war, it became clear that measures needed to be taken to prevent its repetition. in 1916, the “league to enforce peace” organised a conference in washington, at which president wilson first presented his proposal to create an organisation for relations between states, emphasising its universal character, as a true league of nations (lange, 1926, p. 418). it can be argued that this proposal was a serious one and that it forced other political leaders to take a position on it. at the end of the conflict, the paris peace conference held in 1919 and 1920 focused on drawing up treaties to end the war with the different adversaries (truyol y serra, 1998, p. 128). it was attended by representatives of a number of private organisations involved in the fight for peace, the protection of minorities and universal suffrage. however, the area in which it had the greatest impact was the protection of workers’ rights (charnovitz, 1997, p. 216). on 28 april 1919, the covenant of the league of nations was drafted. people were convinced that the first and last global war—known as “the war to end all wars”— had taken place, and hopes for a better world rested, as ferencz indicates, on two pillars: the league of nations and legal norms (ferencz, 1980, p. 25). the most basic objectives established by the organisations that were part of the peace movement were to some extent satisfied by the covenant. arbitration was regulated, a judicial authority—the permanent court of international justice—was established, and arrangements were envisaged for carrying out the reduction in armaments (articles 8, 12 and 13 of the covenant of the league of nations). as history has unfortunately shown, the covenant was nothing more than a humble step that proved to be useless in averting a new war with devastating consequences. the euphoria, however, affected some of the movement’s organisations, which saw their aspirations as https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 13 having been fulfilled and eventually disappeared11. those that remained exhibited a critical and non-conformist attitude and took up a new struggle to improve the regulation of the issues addressed in the covenant and to be present in the implementation of its provisions. 3.2. functioning of the organisation: presence of non-governmental organisations in the league of nations system the league of nations uses the term “unofficial” or “non official organizations” to refer to the non-state actors with which it came into contact12. the covenant of the league of nations did not go so far as to expressly provide for how non-governmental organisations in general should be treated. with the exception of an explicit mention of the red cross in art. 2513, the only similar reference can be found in article 24, which established the following: “1.there shall be placed under the direction of the league all international bureaux already established by general treaties if the parties to such treaties consent. all such international bureaux and all commissions for the regulation of matters of international interest hereafter constituted shall be placed under the direction of the league. 3.the council may include as part of the expenses of the secretariat the expenses of any bureau or commission which is placed under the direction of the league”. article 24 thus refers to “international bureaux” previously created by a treaty, as well as those created subsequently. initially, it appears that the drafters were thinking of intergovernmental bureaux or organisations. because the role of ngos is not expressly mentioned, it was left up to the council’s interpretation of the article. consequently, it is not possible to speak of a single approach to ngos, and two basic phases can be identified in the regulation of their presence in the league of nations. 3.2.1. until 1936: non-governmental organisations as “advisory members” there was no formal regulation regarding the role of ngos, making it necessary for the council to make a pronouncement in this regard. when speaking of the importance of ngos in this first phase, it is necessary to differentiate between two levels of action. this is because while the bodies of the league, in particular the council, debated and issued resolutions on the place of private organisations in the system, they were able to make de facto inroads and become present in its functioning. with regard to the formal approach, the council’s interpretation of article 24 can be divided into three distinct stages: 11 this was the case with the “anti-oorlog raad”, which kept the movement alive during the war but did not survive its end (beales, 1931, p. 318). 12 the term includes for-profit and not-for-profit organisations as well as domestic and international organisations (chavez-pirson, 1991, p. 2). 13 this article establishes that “the members of the league agree to encourage and promote the establishment and co-operation of duly authorised voluntary national red cross organisations having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world”. https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 14 i.first phase or stage of enthusiasm of the league of nations towards ngos. the attitude of the league of nations towards ngos is very positive, and there is confidence in the need for cooperation with them, in order to improve the functioning of the organisation. in 1919, under the terms of this article, “the international bureaux section” was created within the secretariat of the league of nations, responsible for implementing the decisions of the council, which placed certain international bureaux under the control of the league and which, from 1921 to 1938, published the “handbook of international organizations”, which would become one of the clearest manifestations of cooperation between the league and non-governmental organisations14. the league’s intentions towards private organisations were thus shown to be excessive and difficult to achieve, as they were based on a complete lack of knowledge of their reality. this shortcoming led “the international bureaux section” to undertake the task of compiling information and documents concerning the sphere of which it was ignorant, consisting of private organisations that were not under the league’s control, which comprised the vast majority. “the union of international associations” (uia) took on a special role as a source of information on private organisations15. in 1919, the section carried out a mission at its central bureau, and its final report emphasised the need to classify the different existing international associations and bureaux, making special reference to their ability to influence. it was at this moment that the uia became aware of its importance and asked the league of nations for financial assistance and official recognition. its demands for recognition included being considered as the main bureau of private organisations, as well as the granting of a legal status to international private associations (chavez-pirson, 1991, p. 11). the report also advised the creation of a committee to establish the general principles according to which private international organisations would be recognised. the league of nations initially followed these recommendations; at the council meeting held in san sebastian, a resolution was adopted that gave financial assistance to the uia for the publication of the “code des vouex” and entrusted “the institute of intellectual cooperation” with examining the general principles relating to their recognition16. the 14 this publication included an appendix in which the international bureaux section of the secretariat of the league of nations published a quarterly bulletin with extracts concerning the different activities carried out by non-governmental organisations, such as their conferences and meetings. (stosic, 1964, p.160). the reality limited its activity, as it was not until two years later that an international bureau, “the international bureau for assistance”, was placed under the control of the league. 15 this is a non-governmental organisation with the objective of promoting non-governmental organisations, created in 1910 by the world congress of international associations held in brussels, which included the participation of 132 international associations and 13 governments. (charnovitz, 1997, p. 194). 16 in this regard, there was a proposal that the director of the uia presented to the sub-committee on intellectual property, which proceeded to request information from governments concerning the legal status they possessed in their respective legislations. a questionnaire was also sent to private organisations requesting their opinion on the issue. the results of these actions were communicated to the committee of experts for the codification of international law, which decided to withdraw the issue from its agenda. it was argued that it was difficult to reach any conclusion on a subject that required in-depth analysis and that it was not a priority at the time. (chavez-pirson, 1991, p 13). https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 15 final report presented to the council session on 1 march 1921 paid special attention to this issue, stating the following: “...efforts of the council to encourage the activities of private international organizations are entirely approved by the assembly.... the covenant is silent on the relations of the league as to what it may be called voluntary associations of a private character, except the red cross organizations. but from the general tone of the covenant, we infer that the league should exercise its good offices in the interest of all international undertakings that will contribute to the advancement of good will and mutual understandings among nations…” (chavez-pirson, 1991, p. 14). on 21 may 1921, the secretary general issued a memorandum entitled “the application of art. 24 of the covenant to international bureaux”, in which it broadly interpreted the concept of an “international bureau” as encompassing the following: a. public international bureaux, established independently of the league by international conventions or governmental agreements; b. quasi public international bureaux, not established by international conventions but with an international character insofar as governmental representatives attended their conferences; and b.private international bureaux, in the narrow sense. about the scope of application of art. 24 and as there were no doubts regarding its applicability to the first category, it establishes that “...the league may... take under the direction bureaux belonging to the second category which might receive the same privileges as the public bureaux. bureaux in the third category can hardly be regarded as within the scope of this article” (chavez-pirson, 1991, p. 15). however, at its thirteenth session, the council opted for a broad interpretation of art. 24 when it adopted the report of 27 june 1921, which stated the following: “in view of the fact that the covenant makes no mention of those international bureaux which are not created by a treaty or by a general agreement, the council decided to allow a wider interpretation of article 24 and to make it possible for the patronage of the league to be given to all international bureaux; at the same time it defined the conditions to be fulfilled by the non-public bureaux; and the extent of the direction to be exercised by the league over them” (pei-heng, 1981, p. 36). these good intentions, however, failed to materialise in practice, as no private organisation would ever be placed under the control of the league of nations. nonetheless, this open formula for cooperation was reflected in the establishment of permanent relations between the secretariat, committees and commissions of the league of nations and private organisations. ii.second phase, july 1923: in response to requests for recognition addressed to the league of nations by private organisations (such as “the international cooperative alliance” and numerous women’s organisations), it became necessary to submit a report to the council on the interpretation of article 24 and its application to private voluntary organisations or “unofficial organizations”. ultimately, the council understood that art. 24 could only be applied to official intergovernmental bodies, stating the following: “the council, while emphasizing the value which it sets on the collaboration of unofficial https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 16 organizations in the study of specific questions, and on its freedom to solicit the opinions of these organizations, without prejudicing their autonomy, is of the opinion, 1.that it is not desirable to risk diminishing the activity of these voluntary international organizations, the number of which is fortunately increasing, by even the appearance of an official supervision; 2.that article 24 of the covenant refers solely to international bureaux which have been actually established by general conventions” (pei-heng, 1981, p. 37). at the same session, the secretary general requested instructions on how to deal with communications sent by “unofficial organizations”, as until that point, he had been responsible for forwarding communications sent by international associations to the assembly or the council. in the end, the council decided that organisations should send those communications directly to governments and considered it inappropriate and constitutionally incorrect for the secretary general to act as an intermediary. this decision provoked an immediate reaction from the uia, and in december 1923, the council decided the following: “the council of the league, while confirming the principles laid down in july last in its decision that the documents of non-official associations should not be forwarded to governments by the secretary general (…) in order that members of the council might be informed of the nature of any communications addressed to the league by non-official international associations (…) instructs the secretary general to prepare and present to the council at the beginning of each of its sessions a list of any such communications which he may have received, stating the international organization from which they emanate and the subject to which they refer” (chavez-pirson, 1991, p. 17-19). this allowed organisations to submit documents directly to governments, thereby reducing the work of the secretary general to merely coordinating their processing. iii.third phase, 1928: the council reaffirmed its earlier decision excluding private organisations from the scope of article 24, stating the following: “... the institutions covered by article 24 falls into three categories, namely: 1.international bureaux established by collective treaties before entry into force of the covenant, 2.international bureaux established by collective treaties since its entry into force or which may in future be so established, 3.all commissions for the settlement of questions of international interest created since the entry into force of the covenant, which may in future be created. hence, the institutions in question must be official and not private institutions…” (chavez-pirson, 1991, p. 19). as a result of this final decision, ngos were never able to address the assembly or the council orally and were only rarely received by the president of the assembly. nonetheless, this evolutionary process aimed at gradually reducing the formal importance of private organisations within the league of nations did not materialise in practice until the final years of the organisation’s existence, and it is through informal relations that private organisations found their place in the league of nations and comfortably developed their ability to act. in practice and during those years, representatives of private organisations were considered to be advisers and called “advisory members”: https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 17 a.they were allowed to send their representatives to the league’s commissions, committees and sub-committees, which meant that although they were not allowed to intervene; they were able to present reports, initiate discussions or propose resolutions. the presence of private organisations on the communications and transit committee, the advisory committee on social questions, the advisory committee for the protection of children and young people, and the committee for the suppression of the trafficking of women and children was particularly successful (stosic, 1964, p. 157). a type of interconnection thus developed between the league and organisations, in the sense that just as private organisations sent their representatives to the bodies of the league, the latter was present at the international conferences held by those organisations. the extent of this reciprocal relationship was described by the league in one of its publications as follows: “members of the secretariat attend conferences in all parts of the world for the purpose of giving and gaining information. they are not able to express opinions or to take part in decisions but they can often usefully draw attention to facts bearing on the subjects of discussion and can acquaint themselves with facts and trends of opinion of which the league should be aware. secretariat officials have attending meetings of the interparliamentary union, international women´s organizations, the institute of pacific relations…” (cromwell white, 1968, p. 248). this interconnection was facilitated by the exchange of information that materialised with the publication of the “handbook of international organizations” and the “quarterly bulletin of information on the work of international organizations”. b.on numerous occasions, the league received reports from private organisations. in addition to those sent by these organisations motu proprio, there were also cases where the league asked them to prepare reports on very specific topics. the league therefore asked different private organisations to produce reports on issues such as peace and disarmament, drug trafficking and the status of women in the world. these reports were eventually published by the league (cromwell white, 1968, p. 250). c.they were represented at certain international conferences sponsored by the league, regarded by authors such as pickard as a revolutionary phenomenon (pickard, 1956, p. 45). indeed, this represents a break with the trend in how private organisations had previously been treated. of particular significance is the image described by blaisdell, alluding to the practice of the league of nations: “where representatives of nongovernmental organizations competed for seats each day with the tourists” (pei-heng, 1981, p. 34). this practice continued at the first conferences to which private organisations were invited, provided they were in a position to contribute information or expertise to the league. this was the case, for example, at the world economic conference held in 1927, which was attended by 194 delegates and 157 experts, eleven of whom were appointed by the council, including members of private organisations. it was not until 1931, with the conference on limiting the production of narcotic drugs, that discussions began regarding the need to give special consideration to the private organisations in attendance. it was at this conference that the right of private organisations to reserved seating and access to documents was established for the first time (chavez pirson, 1991, p. 32). https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 18 in 1932, the conference on disarmament was held, which attracted a great deal of interest from private organisations, given the peace movement’s tradition of fighting for its achievement. for this reason, in 1931, many private organisations approached the secretariat and other bodies of the league in order to make their position known. this was because, for the first time, their representatives were allowed to address governments at the plenary session for the public hearing of public organisations and a procedure was established for handling submissions from organisations to governments. 3.2.2. after 1936: ngos as “correspondents” the attitude of the league of nations towards private organisations becomes much more reserved and restrictive, not only in theory, but also, for the first time, in practice. the practice of using ngos as advisers was abandoned; they were instead described as “correspondents”, significantly reducing their privileges because they only participated in the work of the committees when they had a special expertise in the subject and only if they were invited to do so. the situation of private organisations presents unique characteristics if we are speaking of specialised agencies of the league, such as the nansen international office for refugees or the international labour organisation (ilo). the latter exhibits a clear dependence on private organisations (cromwell white, 1968, p. 75-93). since its creation in the aftermath of the first world war, that ilo has given a significant role to private organisations. its constitution placed the representatives of governments, business owners and workers on an equal footing. consequently, while the latter pushed for changes to the regulation of certain issues and business owners advocated for the status quo, it was government representatives who maintained the balance of the system. each and every one of these subjects was therefore essential to the functioning of the organisation, to the extent that authors such as white understand that without the presence of workers, who are represented primarily by the “international federation of trade unions”, the ilo would not have been able to function effectively, arguing the following: “it is no exaggeration to state that if the international federation of trade unions had decided to cease cooperation with the ilo, that organization would have become a lifeless shell, if indeed it had been able to exist at all”17. 17 white specifically singles out the “international federation of trade unions”, which in the period prior to the second world war acquired particular significance. it was an organisation that accepted workers of all nations, faiths and political opinions and was therefore entitled to represent workers as a whole. from the earliest days of the ilo, it exerted a decisive influence. it is credited with the acceptance of germany and austria by the ilo and the convening of the washington conference, the first ever held by the ilo, as well as with exerting the necessary pressure for the national ratification of the agreements drawn up within the ilo. (cromwell white, 1968, p. 81). the way it acted was to discuss issues that were on the agenda of the organisation. its influence was not limited to the purely labour-related sphere, and its intervention is considered by some authors to have been crucial to the creation of the high commissioner for refugees in 1933. (stosic, 1964, p. 160). https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 19 indeed, as we have seen, the position of private organisations in the system experienced many upheavals; until 1936 they had a practical importance that was not reflected in the restrictive legal regulations, which tended to ignore them. despite a positive attitude towards those organisations, they were eventually eliminated from the functioning of the system, both in theory and in practice. the factors behind this change in the league of nations’ attitude are diverse. white sees two main reasons for this development: a. the league’s desire to refrain from addressing political issues, which were at the heart of the private organisations’ demands; and b. as a certain way of proceeding became established, officials were reluctant to accept proposals that implied a change in this way of proceeding or that simply involved additional work (cromwell white, 1968, p. 254). bertram pickard believes that this change could be due to, among other reasons, the gradual increase in the number of non-governmental organisations and their great experience and technical knowledge, sometimes superior to that of government delegates. this, together with a growing bureaucratisation of the league and the tensions that existed at the time, contributed to a more reserved attitude towards private organisations (pickard, 1956, p. 54). be that as it may; by analysing the role of organisations in the league of nations, it is possible to draw a conclusion that is particularly important when considering the position of non-governmental organisations in other international organisations. until 1936, with the exception of the first two years, there were restrictive legal regulations on the status of non-governmental organisations, which were not considered to fall within the scope of application of article 24. nonetheless, that was the period when they were most important in practice, in the day-to-day functioning of the league. as pickard observes, “the restrictive interpretation finally given to article 24, while having an important bearing perhaps on the question of the juridical status of ngos had little or nothing to do surely with the form of consultation between the league and ngos” (pickard, 1956, p. 25). this sparked a debate that is still hotly contested today: to what extent do nongovernmental organisations need to have their ability to act legally regulated? would this regulation be a restriction on their scope of action? 4. the role of ngos in modern international law 4.1. influence of ngos on international reality the term “non-governmental organization” came into general use in 1945, when it was included in article 71 of the united nations charter, even though the charter did not provide a definition. prior to this, various terminologies proliferated: “international associations” (as used by the uia, founded in 1910) and “private organisations”, a term widely adopted in the context of the league of nations. presently, there is no universally agreed definition of ngos, despite the term being widely used. however, the fundamental https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 20 criteria characterising these organisations can be delineated as follows: their private or non-governmental nature, their non-profit character and their international impact (garcía ruiz, 2007). in this regard, article 1 of the 1986 european convention on the recognition of the legal personality of international ngos established the following conditions: have a non-profit-making aim of international utility; have been established by an instrument governed by the internal law of a party; carry on their activities with effect in at least two states; and have their statutory office in the territory of a party and the central management and control in the territory of that party or of another party. in line with this lays the recommendation of the ministers to member states on the legal status of nongovernmental organizations in europe, which outlines the fundamental principles of the status of non-governmental organizations18. according to data provided by the union of international associations in its yearbook of international organisations, it can be estimated that in 2024 there were about 10,000 non-governmental organisations. this figure remains a subject of debate due to the methodology used in counting ngos, as some scholars consider that the yearbook is more likely to include ingos headquartered in wealthy and democratic countries as well as organisations that are integrated into the united nations system (hadden et al, 2024, p. 23). nevertheless, these data illustrate the exponential growth experienced by ngos over the last century, considering that in 1909 there were 176 accredited organisations and in 2002 there were an estimated 5,376. in addition to their numeric growth, ngos have become increasingly transnational over the years. many organizations that initially operated solely in a domestic frame have gradually extended their activities beyond national borders or have started interacting with intergovernmental organizations (martens, 2003, p. 62). despite a common tendency to perceive ngos as a monolithic entity, they exhibit substantial diversity. the interests of ngos vary widely. for instance, ngos may provide direct basic services, organize communities to formulate solutions to problems, or advocate the implementation of policies. they focus on a wide range of activities and differ both in their organizational structures and in their sources of support. most ngos receive funding from one or more sources, including donations, grants, contracts, fees for services, product sales, and membership dues. they may be centrally organized or loosely affiliated through federation structures. in general, this large and diverse universe of organizations operates at local, national, and international levels (jenkins, 2012, p. 466). the increasing prominence of ngos has led to a substantial influence on key aspects of international law, particularly in the following areas: law making process: ngos now participate at all stages of the legislative process: ex ante, they identify subjects requiring legislation, highlight situations necessitating regulation, and develop proposals to address them. 18 recommendation cm/rec(2007)14 of the committee of ministers to member states on the legal status nongovernmental in organizations in europe (10 october 2007), https://rm.coe.int/16807096b7; fundamental principles on the status of non-governmental organisations europe and explanatory memorandum https://doi.org/10.17561/tahrj.v24.9263 https://rm.coe.int/16807096b7; carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 21 during the drafting and adoption stages, they influence states' positions in negotiations. ex post, once a law is enacted, ngos play a crucial role in monitoring its implementation and ensuring compliance (garcía ruiz, 2007). cooperation between ngos and international tribunals or quasi-judicial compliance mechanisms: in this sense, ngos are present in the monitoring bodies created by the so-called treaty based bodies, highlighting the regulation of their action carried out by the committee on economic, social and cultural rights and the committee on the rights of the child. their action before these bodies ranges from ensuring that states parties comply with their reporting obligations; or submitting reports and materials to the human rights treaty bodies, including written reports; or participating, in accordance with the rules of the treaty body, in their sessions as observers or through oral statements to submitting an individual complaint to the treaty bodies (a/ res/60/51). equally significant is their interaction with the human rights council and their active participation in the special procedures established within it. its participation as amicus curiae and, in certain circumstances, its locus standi before judicial bodies such as the european court of human rights, the african court of human rights and the international criminal court is particularly noteworthy. interaction with igos: as reinalda points out, governments and igos engage private actors because of their expertise they themselves do not have available, or have only to a lesser extent (reinalda, 2013). the relationship between ngos and igos may assume a variety of forms ranging from full membership in igo organs, to mere administrative links, such as the ones established with the various “ngo liaison services” set up by igos’ secretariats. however, leaving aside the exceptional cases in which ngos participate in igo organs on equal footing with state representatives, consultative relationship has been considered for long time the more advanced and formalized tool for nongovernmental participation in the activities of igos (rebasti et al., 2002, p.3). as demonstrated with the league of nations, interaction with international organizations represents a fundamental activity of ngos that are aware of their capacity to make their voice be heard beyond the boundaries of the nation state and with a political target for the exercise of their non-governmental diplomacy. since then, not only has the number of ngos present in the organizations increased (as of 31 december 2022, 6,343 ngos enjoy active consultative status with ecosoc), leading to a massification that prevents them from participating properly in their activity, but they also demand a greater capacity to act, without there being agreement as to whether this should imply promoting the regulation of their situation in the organizations (rebasti et al., 2002, p.3). according to grigorescu, ngos have been fundamental in democratizing igos by demanding greater accountability, transparency, and participation. however, their impact varies depending on the organization and political context, and there are still challenges in institutionalizing effective oversight mechanisms (grigorescu, 2015). https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 22 as highlighted, the number of ngos has grown exponentially, which makes them difficult to understand, together with a greater capacity for action, which, in areas such as the protection of human rights, often makes the very functioning of the system dependent on their intervention. this adds a novel element that was not so present in the beginnings of these associations, forged on the basis of ideals and goodwill as part of the struggle for a cause. in today's reality, not all ngos follow this path; there is an increasing proliferation of so-called government-oriented ngos (gongos), created by authoritarian governments in order to enhance their reputation and gain access to the resources offered to genuine ngos (gordenker et al., 1995, p. 361). they represent what frouville calls a “servile society”, namely ngos which serve a state rather than public interest and claim to represent the civil society of their country independently, while in reality maintaining close links with the national government and pursuing the interests and policies of the latter. some examples of gongos are represented by chinese ‘mass’-organizations, which openly admit a link with the government, but also by civil society organizations pursuing a certain goal which at the same time constitutes a foreign following the situation of kashmir and pursuing the same objective as the pakistani government (dupuy et al., 2008). 4.2. analysis of the legal personality of ngos all ngos are established and regulated under domestic laws. when ngos operate transnationally, they are subject to the regulation of the home country (where the ngo is legally headquartered to operate overseas) as well as to the regulation of the host countries (where the ngo operates on the field, for example providing services to the local communities). although there are differences in their regulatory approaches towards ngos across countries, governments typically regulate three core aspects: first, ngo registration and dissolution; second, ngo ability to engage in advocacy and political activities; and, third, the scope and the extent to which an ngo can engage in economic activities (bloodgood et al., 2014). this implies that ngos’ capacity to act depends on the internal regulations of states. in this sense, it can be said that present times are not favourable for such organisations. as carolei points out, restrictions on ngos’ activities are on the rise worldwide and this trend is not limited only to authoritarian or illiberal nations. according to the international centre for not-for-profit law, since 2012, 161 restricting laws have been introduced worldwide, preventing ngos from raising donations, providing services to those in need, and operate as watchdogs over governments. in december 2019, the council of europe reported that restrictions cover different kinds of ngo activities ranging from strict disclosure requirements about ngo funding to the criminalisation of ngo boats rescuing migrants in the mediterranean sea. for civicus (a global network of civil society organizations), the regulatory environment for ngos has worsened as a result of the restrictions on freedom of assembly, freedom of thought and speech introduced worldwide, through emergency legislation, to tackle the covid-19 pandemic (carolei, 2022). ngos from restrictive domestic contexts may be more inclined to engage in global governance as a strategy to circumvent national constraints and influence international policies that could impact their local contexts (henry et al, 2019). https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 23 the question of whether or not to regulate the status of ngos in international law has been the subject of debate for centuries. as chanovitz notes “on the other hand, states have worried that granting international recognition to ngos may reduce governmental control over them, and ngos have worried that such recognition might entail a loss of autonomy” (charnovitz, 2006). as dupuy puts it, they want to retain a power to contest, propose and intervene, in short, a liberty of style that protects their status as an effective ‘counter-power’ against the cumbersome red tape of bureaucracies and sovereignties. what matters for most of them is to preserve, expand and promote, depending on the situation, a power of pressure, influence and control over the acts of states, even if, in the case of compliance review mechanisms, it must accommodate itself to the respecting of certain procedures in exchange for its effectiveness (dupuy et al., 2008, p. 211). can ngos be considered subjects of international law? there is no doctrinal consensus on this matter. therefore, it is necessary to analyse the criteria for being recognised as a subject of international law and assess the extent to which ngos fulfil these criteria. the international legal landscape has changed radically since oppenheim stated in the first edition of his treatise that international law governed relations solely between states and the permanent court of international justice affirmed in 1927, in the lotus case (france-turkey): ‘international law governs the relations between independent states.... the legal rules which bind states derive from their will, a will expressed in treaties or in usages generally accepted as enshrining principles of law’. as remiro brotons has pointed out: ‘to the extent that international subjectivity is no longer regarded as an exclusive attribute of sovereignty but rather as a mechanism for assigning rights and obligations within a given legal system, international society has opened itself to other subjects.” (remiro brotons, 1997, p. 42). this perspective allows him to discuss what he terms the “polymorphism of international subjectivity”, a concept reflected in its opinion of 11 april 1949, case of reparation for damages suffered in the service of the united nations: “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities which are not states’ in the mentioned opinion, the icj stated: “what it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims” (icj recueil, 1949). as carrillo salcedo noted: ‘alongside states, the original or primary subjects of international law, there are other derived subjects, created by sovereign states (international organisations) and other non-state entities which, in specific cases, are the addressees of international legal norms and to which international law recognises certain rights and imposes certain obligations, so that they have a certain international subjectivity’ (carrillo salcedo, 1991, p. 25). several factors have contributed to strengthening this https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 24 trend, primarily the humanisation of international law and the inherent incapacity of states to address contemporary challenges posed by international affairs. consequently, the subjectivity of international organisations has been acknowledged alongside that of states, and—albeit contentiously—that of individuals and peoples. in legal doctrine, an entity with international legal personality is usually described as an entity endowed with legal rights and/or obligations and legal capacities directly conferred on it under international law. sometimes the legal capacities are specified as including procedural capacity and/or treaty making capacity (dupuy, 2008, p. 1). as carrillo salcedo summarized (1991, p. 25), subjects of international law must be understood as those which: i.are the addressees of international legal norms; ii.participate in the process of elaborating such norms; iii.have standing to claim non-compliance with these norms; iv.incur liability when violating them; do ngos fulfil each of these criteria? i.ngos can arguably be considered the addressees of international norms, such as the 1994 convention on the safety of united nations and associated personnel, which defines associated personnel as those designated by a non-governmental organisation under an agreement with the united nations secretary-general to carry out activities in support of the fulfilment of the mandate of a united nations operation; or general assembly resolution 53/144 of 9 december 1998, ‘declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms’. in this sense, the un human rights committee affirmed in 2000 the binding nature of the core human rights obligations for all members of society, including ngos (un doc/c.12/2000/4). alongside these examples, in which international law has regulated the actions of ngos in very specific cases, recognising certain rights and imposing obligations upon them, there are many other norms aimed at regulating the actions of ngos in particular areas. these include consultative status within the united nations or the council of europe, their participation in bodies monitoring compliance with human rights treaties, or their participation in international judicial proceedings such as before the international criminal court and other tribunals. ii.regarding the legal status of ngos and their participation in the international norm-making process, it can be stated that this participation is not governed by a set of general rules but rather depends on the specific conditions of the standard being negotiated and the goodwill of the leading bodies overseeing the drafting process. despite this, the role of ngos has been firmly established, and it cannot be denied that contemporary international law, to a certain extent, relies on their engagement for the effective elaboration of its norms. https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 25 today, ngos are present at all stages of the legislative process: ● ex ante, by identifying the subject matter to be legislated, denouncing situations that require regulation, and developing proposals for legislative initiatives; ● during the adoption of the text, by influencing the positions of states in negotiations; and ● ex post, as they play a crucial role in monitoring compliance with established norms (garcía ruiz, 2007). additionally, scholars argue that ngos directly contribute to the formation of socalled “media law,” which develops alongside “state law,” the latter being constructed through traditional legal channels (reinisch, 2023, pp. 37-89). iii.do ngos have standing to complain about non-compliance with international norms? only in very limited cases, and primarily at the regional level, have ngos been recognised as having standing before international tribunals concerning violations of international law. in this respect, the position of the african court of human rights is particularly noteworthy. article 1 of the protocol to the african charter on human and peoples’ rights on the establishment of an african court on human and peoples’ rights (achpr), granted ngos legal rights and remedies, and the court jurisdiction to hear complaints from ngos. the achpr confers observer status upon ngos following an application process before a commission, which takes place prior to and separate from any filings with the court. furthermore, article 6(1) stipulates that ngos may bring cases only against those states that have signed on to the protocol (african court on human and peoples’ rights). as feinberg points out, this process has been fundamental to the evolution of international law, as it has facilitated the incorporation of civil society concerns into the international agenda and contributed to the creation of more effective monitoring and compliance mechanisms (feinberg, 1932). iv.do ngos face liability for violating international norms? while ngos’ compliance with the aforementioned requirements is largely defensible, it must be acknowledged that a significant shortcoming remains: the absence of an international accountability mechanism to address cases of ngo non-compliance with international law. ngo accountability has predominantly been addressed through self-regulation: voluntary standards defined by ngos, for ngos (e.g., codes of conduct, accreditations schemes, peer assessment tools etc.). over the past two decades, self-regulatory initiatives have proliferated globally. notable examples include: the sphere standards (humanitarian charter and minimum standards), accountable now, ingo accountability charter and the red cross code of conduct. however, self-regulation has been widely criticised for its lack of enforcement mechanisms, its voluntary nature, and its failure to ensure meaningful beneficiary participation and peer accountability (carolei, 2022). among these initiatives, the ingo accountability charter stands out for its inclusion of a complaints mechanism, an independent vetting process, and a sanctions clause that allows https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 26 for the expulsion of non-compliant members. the charter comprises ten commitments, aimed at fostering transparency, accountability, and effectiveness, including: respect for human rights; independence; transparency; good governance; responsible advocacy; participation; diversity/inclusion; environmental responsibility; ethical fundraising; and professional management (crack, 2018). in 2018, the dutch government proposed the establishment of an independent international ombudsman, the international ombuds for humanitarian and development aid (iohda), to enhance ngo accountability, particularly in response to safeguarding failures. the proposal was largely motivated by scandals such as the oxfam gb sexual abuse allegations in haiti, march 2018, and the democratic republic of congo, april 2021 (carolei, 2022). assessing the status of ngos in international law requires acknowledging the diversity within this category. ngos differ significantly in their capacity to act at the international level—some possess limited operational reach, while others hold an enhanced legal status under international law. one notable example is the international committee of the red cross (icrc), whose unique position has led some scholars to classify it as a sui generis subject of international law. this distinction arises from the recognition accorded to the icrc under international law, particularly in relation to the geneva conventions of 1949 and their additional protocols, which establish rights and duties specific to the organisation. the icrc has played a decisive role not only in drafting these instruments but also in ensuring their effective implementation. furthermore, the headquarters agreements signed between the icrc and various states suggest that the organisation possesses the capacity to conclude international treaties. many such agreements explicitly grant privileges and immunities to the icrc, similar to those afforded to international organisations. the 1993 headquarters agreement with switzerland, for instance, formally recognises these immunities. similarly, cooperation agreements between the icrc and other international organisations often resemble international treaties. the icrc also possesses standing to bring international claims, as demonstrated in the olivet case, which resulted in the recognition of united nations liability. this has led several scholars to argue that the icrc should be regarded as a subject of international law. however, while some scholars acknowledge the international subjectivity of the icrc, they argue that its peculiar nature and historical evolution prevent it from being classified alongside other ngos. nevertheless, it is crucial to recognise that the icrc is, at its core, a swiss-based non-governmental association, albeit one with an exceptional level of influence in international affairs. why, then, should an organisation like the icrc be separated from its rightful category? why not move beyond its classification as a sui generis entity and acknowledge that it is a non-governmental organisation that has advanced further than others? in my opinion, the icrc represents the most compelling example of what certain non-governmental organisations within international law may evolve into in the future. the recognition of ngos as subjects of international law is increasingly regarded as a necessary step in the evolution of the international legal order. as professor benhttps://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 27 ari argues, granting ngos legal personality would serve two key interests: first, legal personality would assist in confining the number of ngos and would allow institutions to “monitor and scrutinize their activity, thereby improving their proficiency and responsible advocacy.” proponents of confining the growth of ngos argue that the proliferation of ngos has created inefficiency as well as threatened their legitimacy. second, legal personality would facilitate ngo activities through the provision of rights, privileges, and immunities that they can use to protect their operations. under this line of reasoning, legal personality for ngos would create a “fairer international legal order that would reflect the position and relevance of all significant international actors, including ngos, thereby legitimizing their voice and ensuring their participation.” (ben ari, 2014). as higgins has stated out: “ngo demands on the international legal system represent one phenomenon in the reformation in international law... an aspect of that reformation is a change in the concept of international law, and in particular, in our notions of the identity of the users and beneficiaries of international law” (jedele, 2020, p. 134). 5. conclusions two centuries ago, diverse groups of individuals had the opportunity to come together in the common pursuit of a set of ideals. they gradually became aware of the power of coordinated and/or joint action at the international level, and thus, the first organisations that we know today as non-governmental organisations were born. nearly two centuries later, their way of acting and the obstacles they faced are still relevant today. what lessons can be learned from their experience? i.from their earliest steps, first organisations were aware of the need to combine two types of action. the first, ad intra, consisted of dialogue between them, in order to discuss and share their projects and demands. the so-called peace congresses and the interparliamentary conferences were important not only to improving their mutual knowledge but also to refining more effective methods of action over time. the second, ad extra, based on the dissemination of their proposals, had a two-fold objective: to make them known to the general public and influence in the public opinion as well as to pressure governments to address their proposals and incorporate them into their priorities. ii.have new methods of action been created or have they just evolved? it could be said that ngos currently use the same methods of action as a century ago: from the need for coordination identified at the very beginning came the current coalitions; from “information politics”, the publication of pamphlets and periodicals, came the use of the internet as a tool for dissemination and campaigns in support of a specific cause; from the interaction with members of parliament and their presence in international conferences came the parallel fora at international conferences, their interrelationship with government delegations, etc. as a result, without any major innovations, but rather adaptations to new technologies and the international reality, improving their methods of action, ngos have played a prominent role in the international context. https://doi.org/10.17561/tahrj.v24.9263 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 28 iii.there is an “agreed” paradox between the great capacity of action for ngos and their poor international regulation. the restrictive regulation of their status in the context of the league of nations did not succeed in curbing the action of non-governmental organisations but, on the contrary, drove them to develop their greatest skill: their ability to act informally and carry out de facto what they had been denied de jure. the reasons for this inadequate legal regulation remain nowadays and are rooted in the fear of states, their misgivings about uncontrolled organisations of individuals interfering with the exercise of their sovereignty. many ngos also prefer this situation that offers them a broad ability to act, which they fear would be limited by the establishment of restrictive regulations. iv.over the years, the absence of legal regulation of the role of ngos has been maintained. this status quo goes back to the experience described in the league of nations. however, is this response initiated a century ago valid for today’s reality? is it convenient to keep the same situation as in the league system or the current reality demands to promote the establishment of a regulation? in my opinion, although the dilemma remains the same, the reality has changed substantially. the number of ngos has grown exponentially, making it difficult to understand them, coupled with a greater ability to act, which in areas such as the protection of human rights, often means that the very functioning of the system relies on their intervention. this adds a novel element that was not as present in the early days of these associations, forged based on ideals and goodwill as part of the fight for a cause. in today’s reality, not all ngos follow this path; there is an increasing proliferation of what are known as governmental oriented ngos (gongos), servile organisations that, taking advantage of the channels opened up by other ngos with recognised prestige and independence, ultimately undermine the system through their presence and activities. secondly, in the context of an upward trend, ngos are threatened by internal state regulations that restrict their ability to act. the need to address their regulation is more important than ever and should be the subject of a serious and careful analysis. the heterogeneity of these organisations cannot justify the existence of such a mixed bag. it is necessary to assume and minimise the costs of regulation and to advocate for a flexible and realistic regulatory framework, one that establishes basic rights and obligations for non-governmental organisations, without restricting their scope of action. this would serve two key objectives: first, to ensure compliance with minimum standards that were once taken for granted within the league of nations but can no longer be presumed, given the diverse nature of ngos operating in the international sphere; and second, to safeguard ngos from the constraints imposed by domestic regulations. this is a reality that can no longer be overlooked, either by states or by ngos themselves. the time has come to collaboratively develop the appropriate mechanisms for effective cooperation in the pursuit of a more efficient international law. https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 29 bibliography aga khan, s., bin talal, h. (1986). refugees: the dynamics of displacement. london, new jersey: zed books ltd. archer, p., (1967). “action by unofficial organizations on human rights”. in luard, e., the international protection of human rights. london: thames and hudson. beales, a. c. f. (1931). the history of peace. a short account of the organised movements for international peace. new york: lincoln mac veagh, dial press. ben-ari, r. (2014). the international legal status of international non-governmental organizations: the century-long normative debate and its future prospects, 23 cardozo international law and comparative law, vol. 1, number 13. bloodgood, e. a., tremblay-boire, j., prakash, a. (2014). national styles of ngo regulation. nonprofit and voluntary sector quarterly, 43(4), 716-736. https://doi.org/10.1177/0899764013481111 carolei d. (2022). an international ombudsman to make non-governmental organizations more accountable? too good to be true... leiden journal of international law. vol. 35, number 4. carrillo salcedo, j. a. (1991). curso de derecho internacional público. madrid: tecnos. ceadel, m. (1996). the origins of war prevention: the british peace movement and international relations, 1730-1854. clarendon press. charnovitz, s. (1997). “two centuries of participation: ngos and international governance”. michigan journal of international law, n. 18. charnovitz, s. (2006). “non governmental organisations and international law”. american journal of international law, n. 100. chavez-pirson, m. e. (1991). the league of nations and private international organizations. geneve. crack, a. (2018). “the regulation of international ngos: assessing the effectiveness of the ingo accountability charter”. voluntas: international journal of voluntary and nonprofit organizations, n. 29. cromwell white, l. (1968). international non governmental organizations. their purposes, methods and accomplishments. new york: greenwood press publishers. davies, t. (2013). ngos: a new history of transnational civil society. hurst. dupuy, p. m., vierucci, l. (2008). ngos in international law: efficiency in flexibility? edward elgar publishing. feinberg, n. (1932). “la pétition en droit international”, recueils des cours de l’académie de droit international de la haye. vol. 40. https://doi.org/10.17561/tahrj.v24.9263 https://doi.org/10.1177/0899764013481111 first ngos in the league of nations: lessons to be learned the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 30 ferencz, b. (1980). an international criminal court: a step toward world peace: a documentary history and analisis. vol i: half a century of hope. london, rome, new york: oceana publications. garcía ruiz, c. r. (2007). ongs y derecho internacional: su influencia en la elaboración de normas internacionales. madrid: iustel. gordenker, l., weiss, t. (1995). pluralising global governance: analytical approaches and dimension, third world quarterly. vol. 16, number 3. grigorescu, a. (2015). “democratic intergovernmental organizations?: normative pressures and decision-making rules”. cambridge university press. hadden, j., pavlik m., sunn bush, s. (2024). “how many international non-governmental organizations are there? assessing missingness and its implications in ingo datasets”. article to be published. hamilton, k., salmon, p. (eds) (2009). slavery, diplomacy and empire. britain and the suppression of the slave trade, 1807-1975. sussex academic press. henry, l. a. et al (2019). “ngo participation in global governance institutions: international and domestic drivers of engagement”. interest groups & advocacy. vol. 8. jedele, c. (2020). “domestic restrictions on non-governmental organizations and potential protections through legal personality: time for a change? ”. chicago journal of international law. vol. 21: no. 1, article 4. jenkins, g. j. (2012). “nongovernmental organizations and the forces against them: lessons on the anti-ngo movement”. brooking journal of international law: vol. 87. number 2. article 4. keck, m., sikkink, k. (1998). activists beyond borders. advocacy and networks in international politics. ithaca and london: cornell university press. korey, w. (1998). ngos and the universal declaration of human rights. new york: ed. st. martin press. lange, c. l. (1926). “histoire de la doctrine pacifique et de son influence sur le développement du droit international”. recueil des cours. lyons, f. s. l. (1963). internationalism in europe. 1815-1914. geneve: a.w. sythoff, leyden. martens, k. (2003). “examining the (non-)status of ngos in international law”. indiana journal of global legal studies. vol. 10: no. 2. article 1. miers, s. (2003). slavery in the twentieth century. the evolution of a global problem. altamira press. nchama, e. c. m. (1991). “the role of non-governmental organizations in the promotion and protection of human rights”. bulletin of human rights 90/1, centre for human rights geneva, united nations, new york. https://doi.org/10.17561/tahrj.v24.9263 carmen rocío garcía ruiz the age of human rights journal, 24 (june 2025), e9263 issn: 2340-9592 doi: 10.17561/tahrj.v24.9263 31 pei-heng, c. (1981). non-governmental organizations at the united nations, identity, role and function. new york: praeger special studies. pickard, b. (1956). the greater united nations, an essay concerning the place and significance of international non-governmental organizations. new york: carnegie endowment for international peace. rebasti, e., vierucci, l. (2002). “a legal status for ngos in contemporary international law”, european society of international law, https://esil-sedi.eu/ wp-content/uploads/2018/04/vieruccirebasti-1.pdf reinalda, b. (2013). “routledge history of international organizations from 1815 to the present day”. routledge. reinisch, a. (2023). “the changing international legal framework for dealing with non-state actors” in alston, p., non-state actors and human rights. oxford. online edn, oxford academic. remiro brotons, a. (1997). derecho internacional. madrid: ed. mcgraw hill. sluga, g. (2013). internationalism in the age of nationalism. university of pennsylvania press. stosic, b. d. (1964). les organisations non gouvernementales et les nations unies. genève: librairie droz. thepchatree p. (1985). non governmental organizations and the formation of global human rights regime: 1945-1954, dissertation submitted to the graduate faculty of the university of georgia in partial fulfillment of the requirements for the degree doctor of philosophy, athens georgia. truyol y serra, a. (1998). historia del derecho internacional público. madrid: tecnos. whitney, e. l. (1972). the american peace society. a centennial history. new york: j.s. ozer. received: 22nd october 2024 accepted: 21st february 2025 https://doi.org/10.17561/tahrj.v24.9263 https://esil-sedi.eu/wp-content/uploads/2018/04/vieruccirebasti-1.pdf https://esil-sedi.eu/wp-content/uploads/2018/04/vieruccirebasti-1.pdf first ngos in the league of nations: lessons to be learned 1. introduction 2. the creation of the first associations of individuals: the fight against slavery and the peace 2.1. the fight against slavery 2.2. the fight for peace 3. relationship of non-governmental organisations with the league of nations 3.1. birth of the organisation: the contribution of non-governmental organisations 3.2. functioning of the organisation: presence of non-governmental organisations in the league of 3.2.1. until 1936: non-governmental organisations as “advisory members” 4. the role of ngos in modern international law 4.1. influence of ngos on international reality 4.2. analysis of the legal personality of ngos 5. conclusions bibliography truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 1 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism josé ramón intxaurbe vitorica1, trinidad l. vicente torrado2, gorka urrutia asua3 abstract: eta violence had an impact not only on basque and spanish society as a whole, but especially on certain groups who suffered the effects of being direct targets of eta attacks. one of the most directly affected groups were the police forces (members of the ertzaintza and of the spanish security forces), as well as their families. this article uses a qualitative methodology (based on semi-structured in-depth interviews) to reflect and analyse the threat that eta posed for these police forces and their families in the basque country, with special emphasis on the way in which their fundamental rights were affected by eta actions. keywords: police forces, eta’s victims, truth, justice, reparation, euskadi. 1. introduction from its first violent action, in october 1959, until the announcement of its dissolution in october 2011, eta4 perpetrated many attacks, killing more than 850 people, injuring 2,600 people and kidnapping almost 90 people. throughout this time, the terrorist group also varied its targets: if from the beginning the state security forces (guardia civil5 and policía national6) became eta's main target, this group was expanding with the incorporation of the ertzaintza7, journalists, members of the judiciary, politicians, prison officials... 1 university of deusto (jr.intxaurbe@deusto.es). 2 university of deusto (trinidad.vicente@deusto.es). 3 university of deusto (gorka.urrutia@deusto.es). 4 euskadi ta askatasuna (eta) is the name of the basque terrorist organization that proclaimed itself to be pro-independence, nationalist, socialist and revolutionary. 5 military armed force reporting to the spanish home office. it is in charge of guaranteeing citizens’ security in the spanish national territory that is not assigned to the policía nacional and in spain’s maritime territory. the guardia civil also reports to the ministry of defence in fulfilling the military missions entrusted to it by the ministry itself or by the government (regulated in articles 9 and 11 of organic law 2/1986, of 13 march, on the security forces). its members are called guardias civiles (in singular form, guardia civil). 6 its full official name is cuerpo nacional de policía. reporting to the spanish home office, this is a civilian armed force in charge of guaranteeing citizens’ security in urban areas and in any other municipalities determined by the government (regulated in articles 9 and 11 of organic law 2/1986, of 13 march, on the security forces). its members are called policías nacionales (in singular form, policía nacional). 7 police force of the autonomous region of the basque country, whose mission is to guarantee citizens’ public security in the basque region (regulated in articles 2 and 3 of legislative decree 1/2020, of 22 july, approving the revised text of the basque country police act). its members are called ertzainas (in singular form, ertzaina). https://doi.org/10.17561/tahrj.v21.7696 mailto:jr.intxaurbe@deusto.es mailto:trinidad.vicente@deusto.es mailto:gorka.urrutia@deusto.es truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 2 in this context, this article focuses on the violence exercised by eta against national and regional police forces (guardia civil, policía nacional and ertzaintza) and their families, in this period. a total of 372 people belonging to the three police forces discussed here were killed by eta from 1960 to 2011. specifically, 207 guardias civiles, 150 policías nacionales8 and 15 ertzainas were killed in this period.9 eta also killed five other people who had previously belonged to the guardia civil, although they were engaged in different work at the time of the attacks.10 there were also many other members of these police forces or their families who were injured to a greater or lesser extent in the period mentioned above. our main focus will be on how these police forces and their families experienced eta terrorism. special emphasis will be given to the way in which their fundamental rights were affected by eta actions. and all this with the aim of reflecting on these events and generating greater empathy towards the suffering endured by the victims and the need to build a reparative memory (mate 2008). to do so, this article presents a methodological section, which details the main characteristics of the qualitative study, with the members of the police forces in question and their families as the focus of the analysis. next is the most important section of this paper, which concentrates on the analysis of the suffering endured by this group of people in the basque country in the context of eta violence, with a view to understanding what this entailed and providing some issues for the public to consider regarding collective memory. based on this analysis, a legal qualification is offered of the events insofar as they constituted violations of specific human rights. this is followed by a brief theoretical discussion of the right to memory by looking into its key areas: the right to truth, the right to justice and the right to reparation. finally, some suggestions are made that could contribute to the recognition of the unjust suffering experienced by these members of the security forces and their families in the basque country and the dissemination of this information to the public. awareness, empathy and deliberation around this situation are essential in order to achieve a fair restorative collective narrative for those who were coerced by terrorists. 2. methodology this article presents the main results of a qualitative study based on semistructured in-depth interviews with members of the three police forces that operated in the fight against eta in the basque country between 1960 and 2011. we have interviewed 8 according to lópez romo (2014: 170), eta killed 206 guardias civiles and 151 policías nacionales (and predecessor bodies). sánchez and simón (2021: 1236) provided the figure of 214 guardias civiles killed (196 officers on active duty at the time of the fatal attack and 18 in reserve or retired). see also alonso et al. (2010). 9 data provided by the security department of the basque government. 10 some sources include them in the list of guardias civiles, while others do not. we felt it appropriate to make this clarification. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 3 members of these police forces who experienced eta's violence first-hand, as well as family members of those who were killed by eta. with the qualitative approach we have tried to delve into the lived experience and the subjective aspects of suffering in a way that quantitative data do not show us. through these testimonies, our aim is to understand the multiple ways in which terrorist coercion materialised and how it affected both the professional and personal lives of the agents involved and, eventually, of their families. the sampling technique used was that of snowballing, based on the initial contacts made by the research team and the contacts provided by the different associations that have collaborated with us11. all interviewees were contacted by the research team prior to the interview in order to explain the objective of the research and to request their participation in the study. once they agreed to take part in it, a date and place for the meeting was arranged with each of them, trying to keep the conversation in the most appropriate atmosphere, especially for the interviewees. the last interviews with guardia civil and policía nacional members or relatives were held by video call, given that they were conducted during the pandemic by covid-19. before beginning each interview, informed consent was requested in writing, as well as permission to record the conversation. the interviews have been kept, transcribed and worked on at all times by the research team (gonzález, urrutia & vicente, 2020; varona, 2015). a total of 29 interviews were held with members of these police forces or with one of their family members who were affected by the terrorist attacks (despite not having been direct targets). they have been structured around five thematic blocks: (a) the basque country as a place of work and family life; (b) family and social relations in the basque country. (c) the experience of eta violence and its consequences. (e) institutional and social responses. (f) the role of the victims of terrorism and the construction of a collective memory. in order to respect the anonymity of the interviewees, some names and details (geographical or personal references) that would have revealed their identity have been omitted (see table 1). all interviewees participated on a voluntary basis, reliving painful memories. we would like to thank them most sincerely for their generous contribution. their testimonies expressed their experiences as they remembered and felt them. they have been gathered 11 we would like to thank the association of victims of terrorism (avt), the association of basque police officers and relatives of victims of terrorism (aserfavite), the association for support of those threatened, persecuted and exiled because of eta (zaitu), and the association of spanish security forces who are victims of terrorism (acfsevt) for their essential collaboration in conducting this study. we are also grateful for the support of the department of security of the basque government and the home office of the spanish government. https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 4 table 1. profiles of interviewees. sex status identifier male son of a guardia civil e1 female daughter of a guardia civil. terrorist attack victim e2 male retired guardia civil e3 female daughter of a murdered guardia civil e4 male escort e5 female daughter of a policía nacional e6 male retired policía nacional e7 male retired guardia civil e8 female daughter of a murdered guardia civil e9 male retired guardia civil e10 male retired guardia civil e11 female daughter of a policía nacional e12 female daughter of a guardia civil. e13 male retired guardia civil e14 male retired ertzaina e15 male retired ertzaina e16 male active ertzaina e17 male retired ertzaina e18 female ertzaina on sick leave e19 male retired ertzaina e20 female ertzaina’s family member e21 male ertzaina who retired after sick leave e22 male ertzaina who retired after sick leave e23 female ertzaina’s family member e24 male ertzaina’s on leave of absence e25 female ertzaina’s family member e26 male ertzaina who retired after sick leave e27 male active ertzaina e28 male ertzaina who retired after sick leave e29 source: own elaboration. with the aim of providing the public with some points to reflect on that will contribute to building a collective memory of this phenomenon; this work is also aimed to encourage the public recognition of these women and men who engaged in an indispensable role, preserving public security, while suffering chronic harassment to themselves and their closest environment. the analysis of these qualitative data will lead, on the other hand, to an examination of the effects and consequences for the participating individuals based on the legal and ethical parameters of human rights. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 5 3. the law enforcement bodies in the face of the terrorist threat this section discusses the experiences and subjective aspects of the suffering endured by members of the police forces threatened by eta, as narrated by the actors involved. this chapter is organised into four main sections, as set out below. 3.1. the basque country as a work destination. family and social relationships there were various reasons that led the members of the guardia civil and the policía nacional interviewed to choose the basque country as their destination: a vocation for public service, a desire to fight terrorism, an interest in having access to professional rewards to be able to choose a destination that was closer to their own place of origin... the basque country was not an easy or coveted destination, as the terrorist threat was well known: i was certain that i wanted to fight against eta and its supporters. [...] the terrorists did not need direct authorisation to attack members of the guardia civil, the policía nacional or members of the army, which meant that we were under threat 24 hours a day, especially in the basque provinces and navarre. (e11) i could almost have chosen any other destination, but i don't know if it was because i was young or because i wanted to return to my city of origin, malaga, that i asked to be sent to either bilbao, san sebastian or vitoria, in that order. in the end i was assigned to the province of bizkaia. (e10) in the case of the ertzaintza, a posting in the basque country was obligatory, but inclusion in this police force was not; a freely chosen option, according to all the testimonies gathered, in some cases as a job opportunity and, in others, out of a vocation for public service: a profession that, if i were born again, i would do again, because i felt it, i loved it. [...] neither the ertzaintza nor the basque parliament existed when i was in berrozi... we were the first ones. (e15) we were coming from the 1980s economic crisis, so for most of us it was as a work opportunity. (e23) as these police forces worked in the basque country and were institutions engaged in preserving public security, their objectives radically interfered with those of eta. the group therefore extended its threat to all members of the police forces, at any time and anywhere (first to guardias civiles and policías nacionales, and later, also to ertzainas) (domínguez 2017; lópez romo 2017; pérez 2005). one of the recurrent issues raised by members of these police forces was the imperative need to constantly engage in selfprotection routines, and not only while on duty. thus, the contact that many policías https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 6 nacionales and guardias civiles had with the civilian population was often non-existent; there was even a privacy barrier to safeguard officers' identities. this social confinement and the consequent feeling of loneliness was not experienced in other destinations. if it was hard for officers, it was even more difficult for their families, who were sometimes rejected by some of their neighbours if they knew that they were related to a member of the spanish security forces: we took precautions such as not hanging clothes near the window so that the uniform insignia could not be seen. nobody knew us in the block, we had to sneak around. when people interacted with us, we always had to lie. (e7) i was newly married when i was posted to the basque country. my (then) wife did not want to come with me, she was scared. [...] i lived in the casa cuartel12 [...] we worked twenty-five days in a row to be able to have five days off and get out of that ordeal. the eight-hour working day was endless. we took all possible security measures. before using the car, we would throw the keys on the floor to see if there were any explosive devices underneath, we would install remote control devices to move the car without getting into it.... we didn't have any life at all outside the barracks. (e14) in this situation, some families decided not to move with the officer to their destination, with the ensuing emotional effects, while others chose to incorporate selfprotection measures into their daily lives, even though they were aware that they lived in an abnormal situation and of the sacrifices required: [father] when he went out in the car, he always changed the route and the time. [...] when he went into a bar, he always walked to the back and always looked at the door in case something happened. another thing i remember is that he always carried his gun with him. [...] he would never let us go down to the garage. he would normally go down, check the car, the underbody, everything, take the car out of the garage, and once he was out then we could join him [...] at home my sister and i were always overprotected. [...] today i understand that it was for our security. (e6) he told us: ‘you can't say that i'm a guardia civil; otherwise something serious could happen to me’. this was terrifying for me; basically, nobody could know who my father was because, if they did, he might get killed. (e9) the guardia civil and the policía nacional were undoubtedly the most affected by deadly attacks and various other actions. but the ertzaintza, who were originally designed to be a community police force, made up of people known and recognisable to the 12 guardia civil's infrastructure in the form of barracks. these contain both police quarters and housing for officers and often for their families as well. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 7 population, soon had to adopt self-protection strategies and make themselves anonymous. although these measures were similar to those implemented by members of the other two police forces, they had to keep themselves safe from a position of more social visibility, which increased their vulnerability. for example, their status as an ertzaina meant that they were well-known in the neighbourhood, or they if they belonged to a family with members in the force this was something their neighbours were aware of. they endured coercive behaviours, as confirmed by the information seized from eta commandos and the growing number of street violence attacks: little by little you started to notice stares, insults, graffiti all over the village. one day on the town's frontón13 there were whole load of photos of me [...] and a dartboard. several times i found my car had been scratched, it had slashed tyres, or there were dartboards on it... (e22) these threats started with phone calls, and it got to a point that we had to change our phone number and remove it from the phone book. they also started insulting my daughter on the street, calling her the ‘daughter of a cipayo14’. [...] then they burnt my car. then there was also some graffiti on the doorway, which i removed. and then the home office confirmed that they had arrested a kale borroka15 commando and that they had found information on a diskette, which could even be in france, of ways to access my house and the number plate of the new car i had bought (e17). while it was stressful for these agents to follow self-protection guidelines, it was even more stressful to apply them in the presence of their family members, especially younger ones. these were difficult circumstances to cope with, with significant emotional consequences for those who experienced them, and sometimes led to difficult decisions such as moving the family home outside the basque country: it was hard for the children, because things that a normal father can do, you couldn’t do. for example, taking them to the bus stop or going to the town square for them to play with the other children were things you couldn’t afford to do. you couldn’t be in places where there were too many people. at that time, wherever you looked you have to be sure that it was normal for all the people in sight to be there, because if there was someone else, you had to take some kind of action. [...] you couldn’t risk it. (e29) in the end we chose to leave. with all that it entailed, because my partner had a job and had to give it up. […] in the end we decided to stay in castro. [...] we had no friends here. [...] we had some rough years... (e17) 13 a sports building or facility used for the game of basque pelota, found in most basque municipalities. it is used not only for sporting activities but also for a wide range of social events. 14 pejorative term used to refer to members of the ertzaintza. 15 basque term used to refer to street violence by eta sympathisers. https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 8 the continuous anxiety and stress faced over such a long period of time was not easy for these people to cope with, and in many cases living under threat affected their emotional health. this situation was sometimes difficult to recognise, both for those involved and for the authorities of the police force to which they belonged. however, the consequences were evident in their personal and family life. sometimes they were frightened that they would not be understood and that their emotional problems would be perceived more as undermining their vocation of service than as a real health problem. this resulted in only reporting them to their police force at a later stage: within the ertzaintza, there was something known as terrorist harassment syndrome, with a pathology and symptoms that were very similar to the ‘northern syndrome’, except for the circumstances related to leaving, of possible transfers, things like that. (e25) there were many colleagues who, faced with the pain of reliving what we went through, have not even initiated the formal process to be recognised as having been threatened or as victims. (e20) 3.2. threats turned into reality: when life changes in an instant no matter how physically and emotionally prepared the members of these police forces may have been, their testimonies reflected how hard they had been struck when they were actually wounded in a terrorist attack: i was hit in a terrorist attack in 1978. [...] my wounds were serious, i had three bullet wounds. [...] when you’re hit you just know that when you are wounded and defenceless, what they usually do is finish you off, especially those of us who had been at the forefront of the fight against eta for three years were aware of this. that possibility and the fear of being in that situation was what made me stay conscious and every so often i would fire a shot in the air so that they would see that i was conscious, that i was alive and in a position to defend myself and that they would not come to finish me off. (e10) the last thing i heard was the sound of the gun, the cartridge, the chamber of the shotgun, and then i said: ‘shit, i've got an armed behind me’. i turned around to draw, but he had already shot so i took the shot and the party was over. it was quicker, a hunter hunted. [...] i was conscious when i went into the icu, i didn't lose consciousness at any time, i was fully conscious, and i also had to play dead so that he wouldn't finish me off. (e5) the culmination of the threats by means of an attack left irreparable voids in the lives of those killed. they also radically changed or thwarted life projects as a direct consequence of the emotional trauma caused by the murder: https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 9 my father was shot on the street after leaving home. […] he was in a coma for four months before he died. those four months of uncertainty were awful. [...] the whole time my father was in hospital, the room was guarded and we also had an escort for fear that the terrorists would take advantage of this situation to attack again. i had never been so frightened before. (e12) you can imagine what this means for a family; it broke all of our lives. (e4) other interviewees were survivors of terrorist attacks but had to go through a long process, full of uncertainties and personal and professional losses, to recover (when possible) from the physical and/or emotional wounds caused by the attack: i was hit in the attack and, obviously, i went through a tough period of convalescence, because i had to undergo surgery on my head several times. i had problems to recover and above all my main problem was the future, because i had been so excited about working in the guardia civil, and to see it this destroyed like that... (e11) i was hospitalised for six months. [...] i asked the doctor every day ‘do you think i will ever stand up again? and one day she said to me: ‘no matter what you do, you will never get back on your feet’. [...] they broke my life in half. (e7) along with the challenge of overcoming the physical aftermath, a recurrent aspect highlighted in the interviews was the difficulty of coping with the psychological repercussions of the attack, and the way in which this has affected their daily lives. an issue which was not sufficiently taken into account when it came to supporting the recovery of victims, especially during the first decades of eta violence: i went to an expert psychologist appointed by the court. then she treated me. [...] and she reported that i had post-traumatic stress disorder. […] i lodged an appeal with the ministry of defence and they sent me to the army high court. [...] and in the end this court did rule that my posttraumatic stress disorder was a result of the attack. (e8) these psychological consequences also extended to and conditioned the lives of other relatives and colleagues of these victims, due to the emotional impact of the terrorist attacks. no family was left unscathed in this process, and, for this reason, the interviewees demanded greater support from public institutions, given the feeling of loneliness and helplessness they often shared, as they had to pay for the necessary psychological assistance from their own pocket: after an attack, especially in those days, you felt very lonely. no one helped you and you grew up with this emptiness. [...] no one called to see how you were. (e13) https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 10 my father was unharmed, in the physical sense. [...] but the psychological effects were not recognised by the policía nacional and this led him to be doubly victimised. (e6) of course, it causes you anxiety, uneasiness, it throws you off balance; you observe how it happened, you investigate, you realise that at a given moment it could have happened to you. and this, which is easy to say, is difficult to accept. (e15) 3.3. a sense of abandonment, both from society and by the institutions in addition to the lack of institutional support in the recovery of one's own psychological health and/or that of a family member after suffering the attack, the testimonies gathered raised other issues related to an unsympathetic and insensitive institutional response. this included the lack of institutional mechanisms to support the victims financially, help them find a new professional job (compatible with the injuries suffered), or even to be recognised as a victim of terrorism, with the consequent risk of re-victimisation that this entails: at that time, terrorism victims were left in a miserable situation. we were put on permanent sick leave because we were injured, but of course, while we were on sick leave we lost an important part of our salary in the form of allowances: destination allowance, specialism allowance... but what we didn't lose were our needs. on the contrary, they increased. while i was in a wheelchair, i could not live in normal housing. [...] for two years my father and my brother had to pay for the flat, because i couldn't afford it. (e10) what i have seen is that the authorities go to funerals and then they completely ignore you, you disappear completely as far as they’re concerned. (e4) all the procedures were very slow. [...] i was recognised as a victim of terrorism in 2015. i was hit in an attack in 1988 and there was no ruling from the spanish national high court until the year 2000. [...] what i am asking now is that my inability to work as a result of terrorism should be recognised. (e2) we have not been given the facilities to have a professional role that somehow accommodated to our needs. [...] i think most of us are in the same situation. abandoned. (e8) in relation to the social support received after the attack, the people interviewed also felt that they received little empathy regarding their situation and suffering. they also strongly criticised the conduct of those who ignored their suffering by arguing that ‘they must have done something (to deserve it)’. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 11 you are left with many, many thorns in your side, above all, society turning its back on you, and hearing people say, ‘they must have done something (to deserve it)’. [...] an ertzaina ‘must have done something to deserve it’. a guardia civil ‘must have done something to deserve it’. a politician ‘must have done something to deserve it’. who has the right to take someone's life? (e2) in general, basque society was not up to the task until eta and its supporters began to socialise suffering or pain. people became involved mainly as a result of the kidnapping and subsequent murder of miguel ángel blanco16. (e11) the first day i went to school after my father's terrorist attack, nobody sympathised with me. not just children, which is normal at that age, but teachers, headteachers, head of studies. nobody. [...] i understand the fear, but even with fear you have to act in the face of things that are not fair, even more so when it comes to life. (e9) they also decried the treatment of terrorist attacks by some media, which sometimes showed images or photographs of murdered people lying at the scene. they also believed that the ongi etorris (official welcomes offered in some municipalities to terrorists after their release from prison) were unfair, as they were an insult to the memory of their loved ones who had been murdered or, in other cases, they reopened the wounds of the attack, causing great anxiety and re-victimisation for a large part of the interviewees. according to their testimonies, many eta victims would have deserved the same uninhibited treatment by public institutions: some media showed the image of my father lying on the ground after the attack. this is terrible and morbid, more ethical journalism was needed. in their treatment of the news, they were looking for grief, but that is not good for us. [...] it is true that nowadays these approaches are only rare, but the news media did not do the right thing when they wallowed in details. (e12) it's the world upside down. the victims have not been paid these tributes and the murderers come back as heroes. [...] this is also part of the revictimisation process, because when we see it, the wound opens up again and you say, well, this is really unfair. (e9) a lot of ongi etorris17 would have been called for to honour many people who really deserved it. [...] it is true that there have been some institutional acts, but they have taken place timidly, a bit behind closed doors, you know? (e5) 16 miguel ángel blanco, a councillor of the ermua town council (bizkaia), was kidnapped on 10 july 1997 by eta, which made the release conditional on the transfer of the terrorist group's prisoners to basque prisons. miguel ángel blanco was found shot in the head on 12 july and died the following day. the kidnapping and subsequent assassination generated an enormous social mobilisation and commotion. 17 the interviewee refers in an ironic manner to the public acts of homage to eta prisoners after their release from prison, which usually take place when they return to their municipality of residence. https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 12 3.4. the construction of memory and the role of the victims of terrorism the construction of memory and the development of mechanisms to avoid the propagation of radical ideas and the repetition of what was experienced was one of the main concerns expressed in the interviews. when questioned about the story that should be conveyed to the public to facilitate that they can reflect on the unjust treatment of the victims, the responses focused mainly on honouring the memory of the people who had been murdered and harassed as an example of sacrifice in favour of peaceful coexistence and work to support common societal institutions: it is not about having perks and privileges; it is about being fair to those who have endured unlawful violence. people who see the continuum of terrorist pressure on them and how that has caused problems. it is totally legitimate for these people to seek compensation for their children, for themselves. and it is even a wise option to anticipate situations that may come up in the future. (e25) the interviewees expressed their desire to build a society that looks to the future by being fully aware of the past, of the injustices committed; and they hoped to receive the empathy for the suffering of the victims. many of them have decided to make a contribution to this by giving their testimony, based on the conviction that their own experience, together with that of many other people who have shared the same injustice, will be able to weave a collective narrative for basque and spanish societies to draw from in order to understand, learn and not repeat the same mistakes. they viewed these initiatives (particularly carried out in the educational sphere among young people who have not experienced the terrorism in spain) in a very positive light, and they therefore noted their willingness to continue to be involved in them. these victims saw themselves as moral witnesses of terrorism, and tried to dissociate their collaboration from any political interpretation that might be made of it: the narrative, as it happened. but not only in the ertzaintza: journalists, judges, teachers, local council members. everyone. because i think that by sharing the small narratives of what happened to us, we will give an accurate, a very accurate idea of what it was like. (e20) the association also runs a programme involving bringing testimonies to public schools, secondary schools and so on. it is very sad to see that many of the doors we knock on are not opened, especially in public and private secondary schools. where i lived, i also tried to organise it to see if we could give some talks and the response from the head of studies was: ‘i just don't want to politicise the classes’. [...] i said to him: ‘excuse me, but i am not a politician, what i want is to tell a story’, to arrange for people (either me or other victims) to come to share their testimony so that people know what happened in spain with terrorism. (e1) i don’t forget, i try to live without hatred; and it may be necessary to forgive, but never to forget, for the future of society. [...] i wouldn't mind giving some talks. i believe that they also serve to eradicate radical positions. that is one of the great lessons of the victims. (e12) https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 13 another major concern for the near future is clarifying numerous eta attacks for which there is still no judicial certainty. it is very important for victims to have certainty about the attack they suffered that is officially supported by a court ruling, which also makes a difference in their status as victims of terrorism being recognised: there are important issues to be resolved, such as ensuring that victims obtain recognition as such, which some have not been given, either because the circumstances of their attacks have not been ascertained or because they happened a long time ago and there is insufficient documentation to prove them. [...] the law for the recognition and comprehensive protection of the victims of terrorism gives a different treatment to people who have been recognised as victims of terrorism, depending on whether they’ve had a court ruling about it or not. those who have had a ruling have a more favourable treatment than those who have had no ruling. [...] now the last straw is that legal costs are absolutely exorbitant, so this is a way to put us off from lodging claims against the institutions. (e10) according to the interviewees’ views, the institutions should play an active role in recognising the unjust situation experienced by the victims of terrorism and the support (including financial support) to be given to people who were left in a helpless situation by terrorist violence. these are necessary and urgent demands. the need to go to court to have one's status as a victim of terrorism recognised, or to receive the relevant employment or financial benefits, is a source of frustration and is seen as a grievance by those who feel they have sacrificed so much to fight eta: do you know that the terrorists who perpetrated the attack in which i was wounded got out of prison before i was recognised as a victim of terrorism? [...] the fact that i'm still fighting, even in court, and that they've already come out... i mean, that is painful. [...] i haven't lost a single trial, because it was so clear... and there are more than one or two like me. (e3) we also asked the interviewees what they expected from those who have now completed their prison sentences, and what they expect from them in the coming years. for some of them, their repentance should be a condition for these prison leavers to be considered to be fully reintegrated into society. others expressed their willingness to receive a first-hand request for forgiveness from those who attacked them or a member of their family, while acknowledging the enormous difficulty of dealing with such a situation: i understand that some, very very few, are truly repentant and have the right to reintegration into society. but there are many who are being reintegrated without being repentant, and some who do it to benefit from the perks. [...] i understand reintegration when there is true repentance and you know that because the person who is truly repentant comes to you to tell you from their heart. i want to talk to you, i want to ask for your forgiveness and they show it. but how many of those are there? (e4) https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 14 i wouldn't mind, although i don't feel there's really forgiveness. i don't feel like seeing someone who won’t say anything to me, you know? [...] i testified (in court) looking at those who did this to me. i wanted to look at them while i was talking [...] but i found it very hard. (e7) we also asked them whether the initiative of some municipalities to place plaques on the streets where attacks were committed to remember the victims of the attacks (inspired by the stolpersteine or memory paving stones in germany) could be seen as a form of social recognition. the answer was clearly in the affirmative, because in their opinion these gestures contribute to the construction of a restorative memory: i think all these are very good initiatives; i agree with anything that is intended to remember them and to have them in our memory and to know that there were people who died in the midst of democracy there, that they were killed. i believe that basque society must have a memory. (e9) 4. human rights violations identified the violations that have been identified will be reviewed below, by naming the rights that were specifically violated. in the case under study in this work, the violation of human rights is not the responsibility of the public authorities of a state but of a terrorist organization. terrorism, by its very nature, is steeped in a logic contrary to that of human rights, democracy, and the rule of law. states have an obligation to take effective measures against terrorism, but in this regard, it is essential to emphasize that effective counterterrorism measures and the protection of human rights are complementary objectives that mutually reinforce each other and must be managed together as part of the obligation of states to protect individuals within their jurisdiction. it cannot be forgotten that, in the indispensable fight against terrorism, the safeguarding and guaranteeing of human rights constitute an obligation and a limit for states, to the extent that they are an integral part of the fight against terrorism. there is a consensus among the international community to adopt measures in the fight against terrorism that fundamentally prioritize respect for human rights and the rule of law. the members of these police forces (guardia civil, policía nacional and ertzaintza) and their families endured a constant terrorist threat by eta until its dissolution in 2011. this is a scenario which has no place in a democratic society, given the clear systematic violation of fundamental rights recognised both by the spanish legal system and by the main applicable regulations of international law. when eta threats took the form of attacks, they often resulted in either irreversible injuries or the loss of life. in these cases, the right to physical and moral integrity and, in the most extreme cases, the right to life were violated. the members of these police forces and their families, faced with the danger of being victims of attacks or harassment by eta supporters, were often forced to reduce their social activities to the minimum, as well as to follow strict self-protection routines. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 15 these restrictions and deprivation of relationships and contact with the outside world, including in their private life, clearly affected the right to liberty and security of both the police force members and their families. considering the place of residence, living in the barracks was considered by many guardias civiles to be an option to help them remain safe rather than a personal choice, although this did not always prevent them from being the target of attacks. in other cases, it was deemed necessary for all or at least some members of the family to change their place of residence and even leave the basque country to escape harassment. a situation that clearly affected their right to freedom of movement and freedom of residence. for minors, residential changes not only affected their patterns of socialisation, but also their schooling, as they had to join a new school and, sometimes, a new educational model. a breach of the right to education can be seen here, especially regarding the right of parents to provide their offspring with an education in accordance with their values and beliefs. the phenomenon under analysis took place in the exercise of a profession. the right to work and the free choice of profession or occupation are qualified as fundamental rights insofar as the access of every person to the labour market not only has implications for their livelihood, but also affects the social participation and social inclusion of individuals. hence, as a fundamental right, it is linked to higher values of the spanish legal system such as the free development of one’s personality and the fundamental right to dignity. finally, as obvious as it may seem, the attack on the human rights and public freedoms listed in this section undermined those higher values of the legal provisions set out in article 1 of the spanish constitution, mainly those of freedom and equality, as well as pluralism and justice. 5. memory: truth, justice and reconciliation any reflection on the deepening of democracy and the construction of a diverse and plural society in the recent history of the basque country must take into account the moral cataclysm that shook basque society as a result of eta violence between 1960 and 2011. the terrorist dynamic, which started during franco's dictatorship (eta began its attacks in october 1959), continued after the advent of democracy and, except for brief truce periods, lasted until 10 january 2011. this was the date when eta announced a permanent, general and verifiable ceasefire, completed on 20 october of the same year by the announcement of the end of its armed actions.18 these terrorist actions had significantly 18 this article does not deal with the history of eta, but there are numerous studies that focus on part or all of the period of its armed struggle and/or its victims. these include garmendia (1980), jauregui (1981 and 2000), elorza (2000), garmendia (2000), sáez de la fuente (2002), de la calle and sánchez-cuenca (2004), casanova (2007), alonso, et al. (2010), fernández soldevilla and romo (2012), llera (2013), azurmendi (2014), lópez romo (2014), domínguez (2017), llera and leonisio (2017), fernández soldevilla and domínguez (2018) and fernández soldevilla (2020). https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 16 undermined the basis for the agreement of peaceful coexistence underpinning a democratic and plural society, as well as causing severe personal and material damages. eta actions did so by violating fundamental rights and public freedoms. for reparation to be made, it will be necessary to produce a fair account of the events, giving a central place to the unjust suffering of the victims. terrorist violence can only be overcome by genuinely building peace. this requires clarifying the events, processes and responsibilities involved in this violence and in the human rights violations perpetrated from 1960 to 2011. furthermore, there is a need for initiatives aimed at strengthening democratic and peaceful coexistence in the basque country and the rest of spain. in order to move along this path, in addition to identifying events and responsibilities, it is essential to explain the socio-political and institutional factors that influenced the unleashing of this violence. it will also be necessary to propose actions to repair the damage caused to the people affected by it, as well as social, legal and/or institutional measures aimed at preventing more cycles of violence in the future. ultimately, it is a question of implementing a right to memory which should look into three areas: the right to truth, the right to justice and the right to reparation, as promoted by the united nations (joinet 1997). 19 various contributions have been made within international human rights law in an attempt to formulate a right to reparation for victims of human rights violations, based on states’ obligation to ensure respect for and apply international treaties that have been incorporated into the domestic legal system. there have also been discussions about the right of victims to an effective remedy following the violation of these rights (gómez isa 2006a; múgica 2009: 119-137). 5.1. memory and truth the exercise of building a memory does not only seek to the quantitatively record the events that took place, but also to investigate the consequences of these events. it is therefore necessary to understand what happened and recognise the injustice done to the victims. this twofold endeavour which involves knowledge and recognition must be made public and, to the extent that it is endorsed by institutions, must be officially recognised (gómez isa 2006b). it therefore entails building a reparative memory; both for the innocent victims and for the social fabric that has experienced this violence and aims to recover a democratic and peaceful coexistence. violence through persecution in the basque country was ideologically sustained among some social sectors by a process of moral exclusion (sanches et al. 2018). this form of moral exclusion occurs when some individuals or groups are perceived as being outside the boundaries within which moral values, rules and considerations of justice 19 several initiatives have already been promoted in this direction, including the memorial centre for victims of terrorism (www.memorialvt.com) and gogora, the institute for memory, coexistence and human rights (www.gogora.euskadi.eus). https://doi.org/10.17561/tahrj.v21.7696 http://www.memorialvt.com http://www.gogora.euskadi.eus josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 17 apply. those who are morally excluded are perceived as insignificant, expendable, or unworthy, and consequently causing them harm is seen as acceptable, appropriate or just (opotow 1990: 1). in this way, an individual collective leaves some citizens outside of what it understands to be its sphere of justice. the exclusion of these groups means that no positive inclinations can be attributed to them, and also that they may be chosen as an object of hatred and violence. this occurs in a context in which these violent acts may, moreover, be perceived as acceptable (martín-peña et al. 2011: 178). in these processes of moral exclusion, the people who exclude others from their ideal of justice are likely to perceive them ‘as psychologically distant and detached’, feel that they lack obligations or moral responsibility towards them, and therefore perceive them as undeserving of considerations of justice and community resources. in this way, those who exclude manage to approve situations for these excluded people that would not be accepted for those within their considerations of justice (martín-peña et al. 2011: 188). in the case in question, the process of moral exclusion of the spanish police and security forces members and their families took place from the very beginning of eta's violence. the attacks were justified by the ideological documents of the organisation. both the terrorist organisation and its own entourage began to weave a discourse (directed both inwards and outwards), according to which the spanish security forces first, and the ertzaintza later, represented a type of institutional violence that had to be confronted with a form of popular and transforming violence. hence, in the uncertain periods that overlapped the last years of franco's regime and the first years of the 1978 democratic system, eta’s violence found some favour in certain social sectors. it is now possible to analyse this strategy of social exclusion carried out by eta, and its conviction, shared by both the perpetrators and their supporters, that the victims themselves ‘deserved’ everything that happened to them, at least to some extent. the aim is to put an end to these processes of moral exclusion and to create a narrative identity which encourages victims to recover their lost freedom and their empowerment, by allowing them themselves to participate in the building of a memory (bilbao and etxebarria 2005: 48). this requires creating spaces for reflection on the construction of a reparative and empathetic memory. these spaces should recognise the suffering endured by victims who did not choose their status, and also showcase the diversity that was undermined by the actions of eta and its supporters. this memory endeavour should focus on: understanding the role that pathological elements, such as intolerance, the exclusion of diversity, the imposition of one's own points of view by force and the denial of the individual, among others, have played in the events experienced. facilitating the recognition that violence was unjust and the victims who suffered it were innocent. recognising all human rights violations as unacceptable. analysing the past based on the firm values of the present, avoiding the ‘fetishism of memory’ (martínez de bringas 2006: 270-275) or the ‘banality of evil’ (arendt 2009). relating this memory endeavour to the present, a present which it will help to explain. https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 18 5.2. justice and reparation socially, we must consider the duty to remember specifically because we have a duty to render justice. this memory should be approached in terms of reparation for the victims (regarding what the perpetrators tried to take away from them) and for society (in terms of democratic coexistence). this transformative memory must help lay the foundations for reparation and give victims the recognition to which they are entitled (etxeberria 2007: 83-93). the ethical construction of memory involves recognising the harm caused to the victims and taking a moral stance by qualifying this harm as unjust and, therefore, intolerable. the victims of eta were arbitrarily persecuted and had no opportunity to defend themselves against accusations known only to their executioners. this clearly posed a challenge to the ethical principles on which democratic life should be based, and to the set of essential values that are an integral part of justice, namely, respect, equity, equality, and freedom. the role played by the security forces in the fight against terrorism should be underlined in this context, as they spearheaded the fight to safeguard the fundamental rights and institutions that represent us. the work performed by these police forces should be recognised and the suffering endured by them must be acknowledged as unjust. building a memory intended to be restorative, rather than as a mere exercise in remembrance, with no other purpose, must show: empathy towards the victims’ suffering, in the sense of support and solidarity. society should construct a narrative about the suffering endured, recognising this injustice, and showing its most sensitive side towards those whose rights were violated. this does not necessarily entail sharing the victims’ ideological views (múgica 2009: 131). political disagreement is legitimate in any society, and it is therefore necessary to separate the process of justice from any ideological debate. this is also a significantly generous endeavour in terms of democratic culture and peaceful coexistence among different people. recognition of the group that suffered social stigmatisation (including members of the police forces considered in this study). these people need to be offered social and moral rehabilitation. the value and dignity that was taken away or called into question should be restored. a concern to show the public the value of resilience and the determination to continue to perform their role. the group of people who are at the core of this study were at the receiving end of terrorist attacks because they engaged in a profession that entails performing a public service and did so at an enormous personal cost. recognition that the harm caused is irreparable and that there was moral asymmetry between victims and perpetrators. memory also seeks an experiential transformation of the past by recognising an injustice that was committed and showcasing a future that is different from the past, in which so much damage, pain and suffering took place. https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 19 the need for restorative justice. according to the european union, within restorative justice ‘the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party’.20 5.3. reconciliation and social cohesion social reconciliation is the ultimate goal of any process of memory, justice and reparation. without reconciliation and a commitment not to repeat the same harms, any form of peace would be merely a long truce, and social fracture would prevail. in this phase of reconciliation understanding is a prerequisite; however, victims’ forgiveness is not required, since forgiveness is a highly personal, voluntary act that can never be demanded (arendt 2002: 17-18). accountability is also a vital part of reconciliation (bilbao 2007: 27). explicit and honest acknowledgement of the injustice done, and the harm caused, as well as a commitment not to repeat the mistakes of the past, are inescapable in a reconciliation process which, by its very nature, is likely to be lengthy and wrought with difficulties. but in order to eventually give way to an ‘ethics of the second chance’, it is necessary not to fall into the socalled ‘exculpatory rhetoric’, which would exonerate the perpetrators from responsibility by shifting the blame onto the socio-political context or any other circumstance. this study is precisely situated within this conceptual framework, in an attempt to: (a) highlight the work that the police forces in question (policía nacional, guardia civil and ertzaintza) carried out in the fight against eta and in the prevention of attacks that would have led to a greater number of victims; (b) disseminate information on the unjust suffering endured by the victims of eta who were members of these police forces, as well as their families, advocating their perspective so that the narrative can be constructed on the basis of the conviction of the harm caused. this is approached by ‘assuming that the perspective of the victims is a necessary condition for an authentic ethical discourse, particularly in terms of addressing the issue of violence’ (bilbao and etxeberria 2005: 34). our aim is to contribute to disclosing that there were the human rights violations against members of this group by eta violence, to improve society’s capacity for empathy towards them and ultimately, to delegitimise the use of violence and contribute to the construction of a fairer society. 6. conclusions and recommendations ever since eta decided to start its terrorist activity, the guardia civil and the policía nacional became primary targets and were followed by the ertzaintza decades later. those who served in the basque country during the period 1960-2011 were involved in a specific and intense dynamic in both their professional and private lives that caused their families to suffer emotional consequences such as isolation and harassment, as well as the physical repercussions of eta violence (llera and leonisio 2017). 20 article 2.1. european union directive 2012/29/eu of the european parliament and of the council of 25 october 2012 establishing the minimum standards on the rights, support, and protection of victims of crime. https://doi.org/10.17561/tahrj.v21.7696 truth, justice and reparation. human rights violations and their impact on the police forces and their families in the context of eta terrorism the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 20 the terrorist dynamic generated an incessant trickle of attacks, and an intolerable number of people were affected by the lack of respect for democracy and for social diversity, which also seriously undermined peaceful coexistence. it is necessary to produce a fair narrative of what happened, which brings to the fore the unjust suffering endured by the victims in order to promote social empathy towards them. a narrative that not only aims to quantify the events that took place but also to analyse their consequences. it is therefore necessary to understand what happened and to recognise the injustice done to the victims. this twofold endeavour that involves knowledge and recognition must be disseminated to the public and officially recognised, since it is endorsed by institutions (gómez isa 2006b). it advocates building a reparative memory that provides innocent victims with the recognition to which they are entitled, which is also important for society in terms of strengthening democratic coexistence (etxeberria 2007: 83-93). as a society we must consider the duty to remember because we have a duty to render justice. to this end, we must draw the attention of the basque public to the need to reflect on these events and to build this memory. in this context, the participation of the victims in the process (for example, by providing their testimonies) has a double purpose, namely, to reverse the stereotypes constructed in the past and to liberate victims from the stigma they faced (bilbao and etxeberria 2005: 48). victims were persecuted, which undermined the ideals of justice and stripped the ethical principles of democratic coexistence and the values of pluralism and freedom of their substance. as a society, it is our role to articulate forms of recognition and implement effective reparation measures, avoiding the tired formulas of ‘no one is really guilty’ or ‘society as a whole is guilty’, which in practice have the effect of diluting responsibility for what happened. the security forces in charge of combating terrorism have been at the forefront of the fight against eta, and their work and sacrifice must therefore be valued. the loss suffered by the victims is irreparable. no one will be able to make restitution to the victims for the time taken away, the opportunities lost, and the physical and moral integrity having been severely compromised, even less so in cases where family members were killed. recognising this irreparability, as well as the moral asymmetry between victims and perpetrators, is a moral obligation in the endeavour to build a memory. memory also seeks to bring about a future that is different from the past that gave rise to so much suffering, focusing on the stages involving understanding and reconciliation. this aims to achieve social cohesion, the ultimate goal of any process of memory, justice and reparation. while victims’ forgiveness by victims may eventually be given at this stage, this is not a requirement, as was noted above. what is required is understanding, urging the public to recognise the social and human dimensions of the political process of reconciliation. reconciliation is defined as a process of public encounter and the construction of a new framework of relationships in which the people involved, as a political community, https://doi.org/10.17561/tahrj.v21.7696 josé ramón intxaurbe vitorica, trinidad l. vicente torrado, gorka urrutia asua the age of human rights journal, 21 (december 2023), e7696 issn: 2340-9592 doi: 10.17561/tahrj.v21.7696 21 recognise the injustices and violations of fundamental rights endured as being inadmissible. it is concerned with the ethics of human rights and respect for democratic norms as the only possible ways of settling future conflicts, with the aim of never repeating these past experiences (nordquist 2008: 491-497). in this case, it is the perpetrators who must firmly express their commitment to reconciliation in a process that will surely be long and difficult, as there will be numerous rejections, affronts, suspicions, misunderstandings and prejudices to be overcome. this process will demand not to fall back on so-called ‘exculpatory rhetoric’, in an attempt to exonerate perpetrators from responsibility to shift it to the social context, the historical situation or any other circumstance, which, ironically, could even hold the victims responsible. accountability is therefore an important component of reconciliation. faced with the accumulation of negative feelings, both public and private institutions leading the process of reflection in society should engage in the important task of enabling meeting and communication spaces where victims and perpetrators can express their commitment to reconciliation. this will eliminate any temptation to trivialise or forget the trauma experienced by victims, and to repay the perpetrators for the harm inflicted. 7. acknowledgments this article includes part of the results of the studies: “la injusticia padecida por el colectivo de ertzainas y sus familias a consecuencia de la amenaza de eta (1990-2011)”, and “la injusticia padecida por integrantes de las fuerzas y cuerpos de seguridad del estado, así como sus familiares, a consecuencia del terrorismo de eta (1960-2011)”. both studies have been funded by the vice-ministry of human rights, memory and cooperation of the basque government. 8. references alonso, rogelio; domínguez, 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sánchez, manuel and simón, manuela (2021). historia de un desafío. cinco décadas de lucha sin cuartel de la guardia civil contra eta, ediciones península, barcelona. varona, gemma (2015). guía general de buenas prácticas en el trato con víctimas del terrorismo que evite la victimización secundaria. gobierno vasco, vitoria-gasteiz. https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/ adjuntos/guia_general_buenas_practicas.pdf received: 9th january 2023 accepted: 18th september 2023 https://doi.org/10.17561/tahrj.v21.7696 https://doi.org/10.1590/1983-80422018261224 https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/adjuntos/guia_general_buenas_practicas.pdf https://www.euskadi.eus/contenidos/proyecto/victimas_proyecto006/es_def/adjuntos/guia_general_buenas_practicas.pdf truth, justice and reparation. human rights violations and their impact on the police forces and abstract 1. introduction 2. methodology 3. the law enforcement bodies in the face of the terrorist threat 3.1. the basque country as a work destination. family and social relationships 3.2. threats turned into reality: when life changes in an instant 3.3. a sense of abandonment, both from society and by the institutions 3.4. the construction of memory and the role of the victims of terrorism 4. human rights violations identified 5. memory: truth, justice and reconciliation 5.1. memory and truth 5.2. justice and reparation 5.3. reconciliation and social cohesion 6. conclusions and recommendations 7. acknowledgments 8. references proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 1 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach sabreen ahmed* abstract: india does not have an explicit refugee regime and most of the jurisprudence on refugee protection comes from the judgements. however, in the absence of law or explicit domestication of international refugee law, the supreme court of india (sci) struggles with consistent interpretation of non-refoulement. many scholars suggest the presence of non-refoulement as a substantive right under the right to life in the constitution of india (1950). however, it has not been consistently accepted. significantly art 21 allows limitation in the form of ‘procedure established by law’, to avail constitutional justification for limiting nonrefoulement rights citing national security concerns. an analysis of the recent repatriation judgment of sc of india suggests the application of the wednesbury-like approach which is aimed at finding a reasonable justification for the state’s action without getting into the ‘balancing mechanism’. this article adopts comparative, analytical and doctrinal methodology to examine how the indian judiciary can utilize the proportionality analysis in non-refoulement cases to attain better outcomes. firstly, this article explains the concepts of wednesbury and proportionality analysis rooted in european jurisprudence and its application by the ecthr, the inter-american system of human rights and the african courts. in the absence of any consistent european and american scholarship, this article draws from the african court's jurisprudence to understand how proportionality analysis is interpreted regionally and applied by national courts (kenyan high court) in non-refoulement cases. finally, the article suggests that without any constitutional provision of limitation (like in kenya), the supreme court of india needs to adopt the ‘rainbow of review’ approach in refoulement decisions to achieve better outcomes. this would allow the sc to make a gradual shift towards the proportionality analysis from the wednesbury principle, depending on the criticality of human rights violation, without signalling a complete change in judicial attitude. keywords: non refoulement, proportionality analysis, wednesbury principle, ecthr, african courts. 1. rights-based context of proportionality analysis in the european legal system proportionality as a general principle of law finds space in most legal systems. significantly invoked in terms of its constitutional adjudication of european union (eu) law and finds its origin in german constitutional and administrative jurisprudence (tridimas, 2018). in this context, proportionality is considered a defining principle of a limited government and acts as a preferred procedure for managing disputes involving a rights provision and a conflicting state interest (sweet and mathew, 2008). alec stone sweet and jud mathews (2008) have noted that proportionality analysis ‘emerged and then diffused as an unwritten, general principle of law through judicial recognition and choice’. thereby materializing as a judicial doctrine for courts to apply while reviewing the legality of a government action vis a vis a fundamental right. in international human rights law, proportionality plays an important role in the application of human rights instruments like the international covenant on civil and political rights (‘iccpr’). from there it even * jindal global law school, o.p jindal global university, sonipat, india. e-mail: sabreen.ahmed@jgu.edu.in https://doi.org/10.17561/tahrj.v23.8728 mailto:sabreen.ahmed@jgu.edu.in proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 2 translates into regional human rights instruments like the european convention on human rights (echr) (ellis 1999). since the principle of proportionality permeates the whole eu legal system, echr offers a good starting point for understanding the principle. art 8 to 11 of the convention lays down the proportionality test. however, the european court has conducted such proportionality inquiry for other convention rights as well. for example, in belgian linguistics (1968) the court held that: art 14 is violated when it is established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized. in simple terms, proportionality analysis aims to strike a balance between the interest of the community and the protection of an individual’s fundamental rights (cossey v. uk, 1990, para. 37). essentially, it entails two tests: 1. a test of suitability and 2. a test of necessity. the former determines the relationship between the measure and the objective it aims to achieve. the latter assesses the consequences of a measure on a right worthy of legal protection (fromancais v forma, 1983). additionally, a comprehensive three-part test for proportionality analysis was given in the opinion of van gerven ag in spuc v grogan (1991). first was the test of suitability, second, the test of the least restrictive alternative, and finally proportionality stricto sensu. the test of suitability aims to establish if the measure adopted by the state is suitable for achieving the prescribed aim. the test of least restrictive alternative test aims to establish if the measure is necessary and if there are no alternative means of achieving the desired outcome. the third test in the continuum to the second test examines irrespective of no less restrictive means, if the measure has an excessive effect on the right similarly, nada v. switzerland (2012) offers a structured inquiry conducted by ecthr regarding art 8 to 11 of the convention. in ascertaining the right to respect for private and family life, the court asserted that any interference would amount to a breach of the article unless the requirement of art 8(2) were satisfied. the court determined whether the interference was in ‘accordance with the law’, ‘was pursued for a legitimate aim’ and was ‘necessary in a democratic society’, to achieve such aims (nada, 2012, p. 167). as a last limb of the proportionality test, the court also applied the least restrictive means test. the court held that: for a measure to be regarded as proportionate and necessary in a democratic society, recourse to an alternative measure that would cause less damage to fundamental rights must be applied. in light of the echr jurisprudence, the decisions and standard of review adopted by domestic courts in europe, particularly the english courts, are relevant. following a non-uniform, non-mutually exclusive case-by-case standards of review for public rights and administrative practice cases the jurisprudence in the united kingdom (uk) offers a variety of opportunities to weigh the benefits of each process(es) individually. for instance, many rights-based judgments in the uk have set out grounds for proportionality review borrowed from the ecthr. one example is quila and another (2011) whereby lord wilson encapsulated the test in the present case as follows: first, is there a sufficiently important legislative object? second, are measures adopted rationally connected to the https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 3 legislative object? are the measures no more than necessary? fourth, do they strike a balance between the rights of the individual and the interests of the community? earlier, in the 1990s, the ground standard of review opted by the uk courts was the wednesbury rationality review (associated provincial houses ltd. v wednesbury corporation, 1948). it stated that a decision may be attacked if it is so unreasonable that no reasonable decision-maker could have made it. this test was limited in the sense that it required the court to be only satisfied that the ‘decision was so unreasonable that it would not have been made by any reasonable public authority’. it was made clear that such a rationality review suggested that: irrationality would only apply to an administrative action which is so outrageous in its defiance of logic or if accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it (council of civil service unions v minister for the civil service, 1985). although the house of lords in r v. secretary of state for the home department ex p brind (1991) accepted that wednesbury could vary in its intensity while determining fundamental rights, it was never abandoned. at this point, the courts also began to reconfigure the wednesbury review to acknowledge that the test was modifiable. however, with wednesbury unreasonableness still on the table, the courts realized that a more comprehensive analysis appeared pertinent to review cases involving substantive rights. the context for the need appeared after the emerging trend towards human rights in the uk, following the human rights act of 1998 subsuming the echr code in line with the mechanisms set by the court. (mcharg, 1999). naturally, the courts began to acknowledge that the actual test requires the concept of proportionality mirroring the ecthr and the convention itself (smith and gardy v. united kingdom, 1999). finally, an explicit transition from wednesbury to a more intense proportionality analysis was seen in the case of r v. secretary of state for the home department ex parte daly (2001). lord bingham stated that the: infringement of prisoner’s rights to maintain their confidentiality is greater than is shown to be necessary to serve legitimate public objectives. this showed a complete abandonment of the wednesbury review especially where fundamental rights were at stake (daly, 2001, pp. 24-28). justifying such a shift towards proportionality analysis, lord crooke in daly stated that: wednesbury was an unfortunate retrogressive decision in english administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative action within the legitimate scope of judicial review. however, the law can never be justified merely by finding that the decision under review is not absurd and hence valid. https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 4 however, the ‘shift’ could not be formally translated into a complete disregard of the wednesbury principle in the following cases because a rigid constitutional division between the two would not only be difficult but also, as noted in the case of keyu v. secretary of state for foreign and commonwealth affairs (2015) “would have potentially profound and far-reaching consequences” (keyu, 2015, para. 133). the nature of both standards is thus, that placed within specific contexts, their existence, independent of one another, is hardly distinguishable. in pham v. home secretary (2015) 1 wlr 1591) lord sumption while observing the difference between wednesbury unreasonableness and proportionality review stated that in the former the court asks whether the decision was within the range of rational balances that may be struck whereas, under the latter, the court has to form its own view of the balance struck by the decision maker. lord sumption further noted that: the use of proportionality in cases involving human rights and eu law but not domestic law produced “some rather arbitrary distinctions between essentially similar issues” (pham, 2015, para. 104) the approach of highlighting the similarities between the two standards began with the case of kennedy v charity commission (secretary of state for justice intervening) (2015) where lord mance noted that even though proportionality and unreasonableness may have similar elements the advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. lord mance also highlighted that these factors may be relevant outside the convention too, i.e. even where wednesbury applies. therefore, daly suggests that the proportionality test be applied to all human rights cases even if outside the scope of the human rights act 1998 so far as fundamental rights or human rights are in question. this is because proportionality analysis is clearer and transparent and enhances the intensity of the review depending on the context. however, post-daly jurisprudence clarifies that the two standards of review are not mutually exclusive; they operate in parallel, serving similar purposes and employing comparable methodologies to achieve largely the same outcomes. this argument, however, has its limitations, which are discussed in part 3 of the paper. 1.1. proportionality and nonrefoulement the principle of non-refoulement is explicitly provided for in article 33 of the 1951 geneva convention relating to the status of refugees, and also in the 1967 protocol linked to the latter. article 33 (1) specifies that a state party to the convention or its protocol may not return (“refouler”) a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. unhcr (1997) notes that non-refoulement is the cornerstone of asylum and international refugee law. further, it explains that the application of the provision is not dependent on the lawful residence of a https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 5 refugee in the territory of a contracting state. the note also makes mention of art 3(1) of the un declaration on territorial asylum adopted unanimously by the general assembly (1967). it stated that: no person referred to in article 1, para 1, shall be subjected to measures such as rejection at the frontier or if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution. art 33(2) of the convention (1951) provides exceptions to the non-refoulement obligation whereby there are reasonable grounds for regarding the refugee as a danger to the security of the country in which he is or who, having been convicted by a final judgement of particularly serious crime, constitutes a danger to the community of that country. while these exceptions are argued to weaken the refugee protection machinery, there are vast debates in academia about the implementation of such exceptions (teferra, 2018). in these debates, the application of proportionality analysis is also frequently discussed, especially in the context of refoulement triggered by national security grounds (teferra, 2018). this means that there is a requirement to balance security interests with possible dangers faced by the refugees. hathaway and harvey oppose such a balancing mechanism because art 33 has an inbuilt threshold of severity. moreover, they argue that there is a requirement for a strong standard of national security under art 33(2) (hathaway, 2005, pp. 353-354). contrarily, professor geoff gilbert (2003) and goodwin gill (1996) contend that proportionality analysis is essential to art 33. goodwin (1996) states that principles of natural justice and due process are inherent in international law and require something more than an ‘exception’ clause. similarly, professor gilbert (2003) advocates for the balancing of the refugee’s fear of persecution against the danger that he or she presents to the security of the country. moreover, from an absolute right context, lauterpacht and bethlehem (2009) argued that this absolute ban requires the asylum state to give full consideration to the dangers faced by the refugees before executing its deportation order. 1.2. ecthr jurisprudence: from no proportionality to something illusory in the context of europe, there is no explicit right against non-refoulement, however, it has been read into art 3 of echr which states that ‘no one shall be subjected to torture or inhuman or degrading treatment or punishment’. although such a construction implying non-refoulement obligations dates to the 1970s (cassese, 1993), it materialized only with soering v. the united kingdom (1989). since then, ecthr has time and again expanded the jurisprudence in many cases. the court has described art 3 to be absolute (harris, 1995). this means that art 3 admits no exceptions, cannot be derogated, and applies to everyone no matter what (ireland v. uk 1979-1980, p. 163). in the context of non-refoulement, the resulting obligation is not to deport, expel, extradite, reject at the frontier or otherwise ‘refoule’ someone at risk (mavronicola and messineo, 2013, p.595) in vivalrajah and others v. the united kingdom (1991) the court said that: https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 6 expulsion by a contracting state of an asylum seeker may give rise to an issue under article 3 and hence suggests the responsibility of that state under the convention where substantial grounds have been shown that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he returned. further, in the first deportation case, chahal v. the united kingdom (1996) the british government claimed that art 3 allows a state to expel an alien if such removal was required on national security grounds. this needs to be balanced with the non-refoulement obligations. the court rejected this reasoning and stated that art 3 was an absolute right. in the context of balance, ecthr stated that ‘art 3 makes no exceptions even in the event of a public emergency threatening the life of the nation’. moreover, in saadi v. italy (2008) ecthr concluded that: the concepts of risk and dangerousness in the context of refugees do not lend themselves to a balancing test because they are notions needing independent assessment. the prospect that a person may pose a serious threat to the community if not returned does not reduce the degree of risk of ill-treatment that he or she may face after returning. for this reason, it would be incorrect to require a higher standard of proof where the person is considered to represent a danger to the community since assessment of the level of risk is independent of such a test…’ however, in r (wellington) v. secretary of state for the home department (2008) the court accepted the application of the ‘minimum level of severity’ test. in this, the uk government requested to balance the severity of ill-treatment to the person returned with the danger it posed to society. the court stated that these notions be assessed independently, however, it is to be assessed if a ‘minimum level of severity’ has been met for art 3 purposes. lord scott states that the majority view implied a ‘relativist approach’ to art 3 whereby it suggested inhuman or degrading treatment in europe might not be so categorized in the receiving country (natasa and francesco, 2013). the absolute nature of art 3 was now based only on torture implying that what is torture for art 3 in europe is torture everywhere else. but not inhuman or degrading treatment. this means that after balancing the inhuman or degrading treatment with the danger posed by him or her if the inhuman or degrading treatment is not severe, he may be removed. similarly, in socialist party and others v. turkey (1998) the court said that considering the national security exception to non-refoulement obligations, the court should carry out scrutiny. the task is not to substitute its view for the relevant national authority but to review the decision delivered by them. such a review should satisfy those national authorities who made such a decision after an acceptable assessment of relevant factors. in babar ahmad v uk (2012) ecthr agreed with the wellington rationale. in this case, the applicants claimed that on account of being extradited, there is a prospect for them to be imprisoned in a ‘supermax’ security prison in colorado. also, the conditions of detention would breach art 3 due to prolonged periods of ‘solitary confinement’ (babar https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 7 ahmed v uk, 2012). they also argued that if they were convicted, they would face a mandatory sentence of life imprisonment without any possibility of parole. they argued this was disproportionate to the offences they were accused of. the court held that: the absolute nature of art 3 does not bar the removal of a person if the act or omission does not fulfil the ‘minimum level of severity test’. nevertheless, in the absence of an exception clause to art 3, ecthr jurisprudence also does not encapsulate how proportionality analysis in the context of ‘minimum level of severity’ would apply in case of national security concerns. it has been left to be determined on a case-to-case basis which is more theoretical and illusory, unless the grand chamber sets the record straight (mamatkulov and askar v turkey, 2005). the case-to-case-based analysis of non-refoulement and parallel balancing mechanisms complicates the court’s jurisprudence to the extent that no practical trend seems to emerge. in hirsi jamaa and others v. italy (2012) for example, the violations alleged against italy in the case were that on may 6, 2009, three boats were intercepted in international waters bound for italy with about 200 people on board. once rescued the migrants were forcibly handed over to the libyan authorities as required by the bilateral agreement between italy and libya of february 2009. the appeal to the ecthr was filed by 11 somalis and 13 eritreans who were present on board and who accused italy of the violation of various provisions of the echr, but the most serious concerning articles 3 and 4 of additional protocol no. 411 (see scovazzi, 2016, p. 74) in combination with article 13. the court while allowing the appeal relatively extended the jurisdiction of the intervening state, so far as the echr rights were concerned to also protect and ensure rights obligations towards migrants in international waters. if the state authorities, in the exercise of their powers, act imperiously towards people (gill, 1998, p. 167) to prevent migrants from reaching the borders of the state, this constitutes an exercise of state jurisdiction as provided for by article 1 of the convention and therefore makes the state responsible for the violation of article 4 of protocol no. 4 (hirsi, 2012, para. 180) similarly, the court also recognized the potential risks faced by migrants who would be subjected to the treatments prohibited by article 3 by libyan authorities, as they would enter the libyan territory illegally, bearing no practical difference from already present illegal migrants there. against the backdrop of this rationale stands the contentious and highly debated ruling in ecthr, n.d. and n.t. v. spain (2020) in which the court stressed the importance of the state's role in protecting external borders while rejecting the decision of the chamber of echr holding that spain carried out collective rejections without considering the personal circumstances of each of the migrants and without resorting to a decision-making https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 8 process (n.d. and n.t, 2020, para. 124) negating the declaration of the chamber that such process stands in violation of article 4 of protocol no. 4 and article 13 of the echr. both courts rejected arguments made towards the violations of article 3 of the echr. the grand chamber even went on to note that the refoulement was a consequence of the applicants’ “own conduct” (n.d. and n.t, 2020, para. 242). this garnered specific criticism from scholars and refugee rights advocates as individual situations were not comprehensively assessed nor accessibility limitations of asylum procedures were analysed, leading to a horrible precedent justifying collective expulsions. so far it can be concluded that ecthr has earlier set the ‘proportionality test’ only for the qualified right and has agreed that absolute rights (art 3) are neither subject to any exceptions or balancing. however, ambiguity in standards in various cases suggests no conclusive pattern. the newfound limb of the ‘minimum severity test’ in non-refoulement cases, not only defeats the point of the absolute nature of the right under art 3 of the echr but also creates a confusing balancing mechanism for non-refoulement rights. 1.3. proportionality analysis in the in the inter-american human rights system (iahrs) before delving into the african stance on proportionality analysis a brief reference to the affirmative practice of the doctrine in the inter-american human rights system (iahrs) especially through the inter-american court of human rights (iacthr) and inter-american commission on human rights should be made. the court while interpreting and applying the principles of the american convention on human rights (1969) (achr) also employs a ‘balancing test’ defined as a means of weighing competing rights and interests against one another, which can also in some readings be an opportunity to incorporate local circumstances and subsidiarity (sagüés, 2013, p. 9). although the test is heavily contextual, i.e., case-by-case based, and no thread of standard practice exists as such. similarly, the test remains very limited given the gross and systematic human rights context of the cases that are usually dealt with by the court within the convention for example, violations of rights such as the right to life (art 4 achr), physical integrity (art 5 achr) and judicial guarantees (arts 8.1 and 25 achr) (lixinski, 2019). the absolute nature of such rights eliminates the exercising of balancing, but non-absolute convention rights are subject to scrutiny of due process and proportionality analyses. this is also explicitly enshrined in article 30 of the convention which states that: the restrictions that, pursuant to this convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established. in usón ramírez v venezuela (2009) the iacthr noted that that the restriction (in the case the restriction on effective exercise of the right to freedom of expression) shall be https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 9 proportional to the interest that justifies it and shall be closely adjusted to the achievement of such legitimate objective, interfering as little as possible with the right at question. similarly, in gomes lund et al. ("guerrilha do araguaia") v brazil (2010) the court while balancing the right of access to justice of the presumed victims of a human rights violation against state interests noted that in applying the principle of proportionality [principio de ponderación], the state has omitted any mention of victims' rights arising under articles 8 and 25 of the american convention. indeed, said proportionality [ponderación] is made between the state’s obligations to respect and guarantee and the principle of legality, but the right to judicial guarantees [fair trial] and judicial protection of the victims and their next of kin are not included in the analysis, which have been sacrificed in the most extreme way in the present case (gomes lund et al. ("guerrilha do araguaia") v brazil, 2010, para. 178). in non-refoulement context article 22 of the achr affirms in para. 7: the right of a person to seek and be granted asylum in a foreign territory if she or he risks persecution for political offenses or related common crimes’, and in para. 8, [i]n no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions”. the court thus rely on these provisions along with international (general and treaty) laws such as the 1951 convention on refugees its 1967 protocol, the 1961 convention relating to the status of stateless persons, the convention on the reduction of statelessness, or the 1990 international convention on the protection of the rights of all migrant workers and members of their families, to balance the rights of individuals along with state interests. in the case of haitian interdiction – haitian boat people (1993) the commission found the united states in violation of the principle of non-refoulement, having based its argument on the second part of article 26 (right of asylum) of the american declaration. in that sense, the principle of non-refoulement is not an exclusive component of international refugee protection, but serves to protect other universal human rights (advisory opinion oc-25/18, the institution of asylum, and its recognition as a human right under the inter-american system of protection, 2018, para. 180). similarly, the inter-american court in the case of advisory opinion oc-21/14, rights and guarantees of children in the context of migration and/or in need of international protection (2014) interpreted article 22 of achr in relation to other convention provisions, like access to justice and due process. the court established that ‘a flagrant violation of the basic guarantees of due process in cases of administrative proceedings related to migratory status, in expulsion or deportation proceedings, and in proceedings to determine refugee https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 10 status, may result in the violation of the principle of non-refoulement’. (advisory opinion oc-21/14, rights and guarantees of children in the context of migration and/or in need of international protection, august 2014, para. 230). concerning the scope of application of the non-refoulement principle, the court in pacheco tineo family v. plurinational state of bolivia (2013) posited that states also have an obligation, not to hand over a person in need of international protection where there is a possibility that he may risk persecution, or to a state from which he may be returned to the country where such a risk exists i.e. “indirect refoulement”. similarly, in the advisory opinion oc-25/18, the institution of asylum, and its recognition as a human right under the inter-american system of protection (2018) the court emphasized that the principle of non-refoulement also requires positive state action, including individualized risk assessment in the case of refoulement. these judgements are sufficient to establish that iahrs jurisprudence has been covertly converging and coalescing around central themes and prongs for the balancing test of proportionality in locating state interests with individual rights. the practice, unlike the echr does not take a doctrinal form in nonrefoulement context, but the same exists albeit in multiple manifestation. 2. african courts and the proportionality analysis: meaning and context unlike the echr, the african charter on human and people’s rights is silent on the requirements of any restriction on a human right. hence, most of these restrictions in the human rights context come from judicial creativity. following a very similar construction of ecthr proportionality analysis, the african court of human and people’s rights (acthpr) held that, any restriction on human rights needs to conform to a threepart test (tanganyika law society and legal and human rights centre and reverend christopher r mitilika v, united republic of tanzania, 2013). first, it should be prescribed by law. second, it serves a legitimate aim. third, it is proportionate to the aim pursued. to ascertain proportionality, the court assesses the following. first, its suitability. then it's a necessity—third proportionality stricto sensu. the acthpr does not apply all the tests and might decide based on the initial tests if the issue at hand fails to meet the criteria. for example, in tanganyika law society (2013), the tanzania regulation prohibited independent candidates from seeking public office. the law society contended that such restriction on candidacy was on account of the social needs of the country and all candidates either ascertain a sponsor or be a member of a political party. the applicant contended that this conflicted with the constitution and should therefore be declared void. here the court found such a regulation to be violative of the applicant’s right to political participation. the court said such a measure did not meet the legitimacy criteria under art 27 (2) of the achpr and cannot stand. the court did not proceed to balance the competing interests and rights at hand and deemed as unnecessary given the measure failed to even meet the initial criteria of legitimacy. similarly, in actions pour la protection des driots de l’homme (apdh) v. republic of cote d’ivoire (2016) the court held that setting up of an electoral body which is neither independent nor impartial, to the state has breached art 12 of the achpr. the court https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 11 did not apply the proportionality analysis to examine if such a restriction on the right to political participation was proportionate. usually, the court applies the strict necessity test and the proportionality analysis once it is affirmed that a restriction on an individual’s right is provided by law and serves a legitimate purpose. a similar pattern can be observed in the african commission on human and people’s rights v. republic of kenya case (2013). the state evicted the ogiek population from the mau forest area for reasons of preserving the natural environment. the ogiek population claimed this to be a violation of their cultural rights. the acthpr applied the first test and argued that preserving the natural environment is not a legitimate justification for the eviction of the ogiek population. hence there is no need to apply the necessity or the proportionality test. the court was dissatisfied with the argument of interference prompted by the need to protect the common interest. it was held that dispossessing the ogiek population of their land was a violation of their right to property. so far, the court has managed to reach the balancing mechanism only in the loge issa konate case (2014). this case concerned journalist lohe issa who wrote two articles for a newspaper in which he accused a state prosecutor of corruption. the prosecution filed a defamation came. he was convicted by the national court and brought before the african court for review. the court applied the three-part test as follows. first, the question of the legality of burkina faso’s defamation laws that allowed restriction on one’s freedom of expression rights. second, does the restriction serve a legitimate purpose? third, is the restriction necessary to achieve the purpose? the court found that the domestic laws in burkino faso allowed for criminal penalties for defamation and was a permissible restriction to one’s freedom of expression rights. the purpose of the restriction was to protect one’s reputation and the court found this as a legitimate purpose. turning to the third analysis of whether the criminal penalties were necessary and proportionate against the freedom of expression, the court held that there should have been lesser interference with free speech. the criminal penalties though legitimate, where not proportional as civil recourse could have been enough to save the reputation in question. the law calling for criminal penalties was found to be disproportionate to the freedom of speech and expression. the court took into consideration the practice of international courts and bodies of human rights to state that, ‘freedom of expression in a democratic society must be subject to a far lesser degree of interference’. the careful analysis of these judgements suggests a pattern of the court’s scrutiny of all interference measures by the national authorities. the theory of margin of appreciation devised within the european human rights jurisprudence holds value in this regard. the concept informs the reasoning of ecthr in its assessment of those provisions of the convention and its protocols that require balancing with other rights or need to be weighed up against other aspects of the public interest. the rationale was first introduced in handyside v united kingdom (1976) where it was held that a sequence is involved in the process of securing human rights: an assessment of the compatibility of national measures with the convention is first made by national courts; and subsequently, a review of this assessment is undertaken by the ecthr if needed. (frantziou, 2014). for example, in tanganyika while the court accepted in principle the importance of applying the ‘margin of appreciation’, the court reiterated the need for applying such https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 12 discretion in good faith and to assess the relevance, sufficiency, and fair balance between the general interest of the community and the individual’s fundamental right. in a few rare cases, the court has been completely non-receptive to such state discretion. for example, in ingabire victoirie umuhoza (2017) applicant argued that rwanda interfered with his freedom of expression and the court upheld it. rwanda argued that they intended to minimise the risk of ‘double genocide’ incited by the applicant turning the citizens against the government and spreading rumors of internal strife. however, the court stated that while it acknowledged the history of genocide in rwanda and the need for measures to be adopted not to incite another, the said restrictions are disproportionate restrictions on his human rights. while this is not the general trend to shut down all arguments of margin of appreciation, it can be concluded that the acthpr generally has a cautious approach while dealing with ‘margin of appreciation’ in human rights cases. a careful look suggests that the court does not adopt a mere procedural approach while determining the proportionality of a state measure but scrutinises the decision. this means that only sufficient reasons for carrying out a measure are not enough, it is to be assessed if such a measure is also necessary and proportional to achieve the objective. this means that the acthpr jurisprudence is entirely based on the ‘proportionality analysis’ instead of the ‘wednesbury principle’ so far as the human rights case is concerned. however, there has been no direct application of proportionality analysis in nonrefoulement cases. nevertheless, anudo ochieng anudo v. united republic of tanzania (2018) comes very close to such determination so far as ‘arbitrary removal’ is concerned. in this case, mr. anudo was forced to live between non-man’s border between tanzania and kenya as neither country recognized him as a citizen. he applied for marriage licenses and was accused of misrepresentation, leading to his expulsion from tanzania to kenya where he was arrested and convicted. mr. anudo challenged tanzania’s action of removal or deportation to kenya under the african charter of human and people’s rights calling such removal and deprivation of nationality as arbitrary. a close observation suggests a shift towards the ‘wednesbury principle’ or a more procedural approach. as disappointing as this may come in the consistent proportionality analysis jurisprudence, the court does allow more discretionary space to the state in cases of removal and assesses proportionality only to the extent of determining ‘whether a given interference reasonably consists of a reasonable approach’ –meaning whether the authorities supplied sufficient reasons for their actions? this does not carry out proportionality analysis in detail, however, still determines the sufficiency of reasons by the state, suggesting a proportionality-like analysis which is not completely wednesbury either. therefore, in this case, the court decided that tanzania had violated iccpr by expelling the applicant without presenting sufficient reasons. however, it did not analyse the proportionality of the decision. here, although his nationality was in question, and he was not a refugee, such reasoning can be seen in the light of arbitrary removal irrespective of the status of the applicant. https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 13 2.1. national courts of africa and proportionality analysis: a threshold? contrary to the direct application of such a balancing mechanism with the regional court, such application can be found in the approaches of national courts of africa like the kenya high court. such application of proportionality analysis by the judiciary is constitutionally motivated due to the presence of a specific limitation clause in the constitution of kenya (2010). kenya is a signatory of the 1951 convention, 1967 protocol, au convention, iccpr, icescr, the african charter, and udhr. domestically, it has the refugee act 2006 along with the constitution of kenya. sections 4 and 16 of the refugee act crystallize art 33 and the exceptions of art 33(2) of the 1951 refugee convention. art 24 of the constitution of kenya also allows that the bill of rights may be limited given the limitation is reasonable, and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the relevant factors: (a) the nature of rights or fundamental freedoms (b) importance of purpose of the limitation (c) nature and extent of limitation (d) need to ensure that the enjoyment of rights and fundamental freedom by any individual does not prejudice the rights and fundamental freedoms of others (e) relation between limitation and its purpose and whether there are less restrictive means to achieve a purpose. this means that if national security is cited as a reason for imposing any restrictive measures on the enjoyment of fundamental rights of refugees, states must demonstrate how a specific person's presence or activity in the area is causing danger to the country. also, how his or her removal would alleviate the menace. interpreting art 24 in randu nzai ruwa and others v. minister, internal security and another (2012), the court stated that: the arm of the government is best suited to decide national security matters. what the government says about national security should normally be believed. however, when there is a complaint about wrongfully invoking national security such that it implicates fundamental rights, the court needs to be judicially satisfied that the action of the state is reasonable and justifiable. this line of jurisprudence was also followed in kitua cha sheria and others v. the attorney general (2017). the state argued that by a directive, all refugees and asylum seekers must reside in gazette refugee camps citing national security reasons. the claimants argued that it violated art 39 of the constitution of kenya which allowed freedom of movement for all. further, they claimed that such a limitation on their right was beyond the scope of art 24, which limits rights and fundamental freedoms. arguing such containment to refugee camps in the context of non-refoulement, petitioners argued that after moving the refugees to refugee camps they would be sent back to their home countries. https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 14 the court stated that firstly, a real connection must be established between the affected persons and the danger to national security concerns posed. further, it must be shown how the removal of all urban refugees to the refugee camps can alleviate the insecurity threats. additionally, the risk of danger and suffering to the person concerned needs to be squared with the intended results. finally, the court held that confining some persons to the refugee camps does not serve to solve the insecurity problem. further, the court asserted that: while national security cannot be compromised, safeguards must bear a relationship with the measures taken by the state. the state fails to demonstrate how refugees are the main source of insecurity and does nothing to justify how the use of security operations will solve security concerns. through the constitutional lens, all that is visible is the violation of the right of refugees to free movement and non-refoulement. this way the kenyan court applies the true proportionality analysis and rarely invokes the wednesbury principle while determining any detention or deportation decisions. this is significantly possible due to the constitutional provision of limitation which is similar to the court-designed proportionality analysis. ironically, the courts who designed the test failed to apply it in cases of non-refoulement. unfortunately, it was not directly applied by other regional courts in non-refoulement cases either, even though the test was interpreted broadly. however, it was subsequently adopted by some states like kenya through constitutional provisions and then applied by the national courts in its true form. 3. proportionality analysis jurisprudence in india: scope for non refoulement? so far it can be concluded that ecthr produces a very confusing jurisprudence on the application of proportionality analysis in non-refoulement cases. while the acthpr sets a fantastic jurisprudence of application of proportionality analysis in human rights cases, it lacks instances of direct application in a non-refoulment context. moreover, the national courts of india do not have a limitation provision like that of art 24 of the constitution of kenya, to rely on the constitution of india (1950) provides separate limitation clauses, like in art 19. traditionally, just like all common law countries, india has followed the wednesbury unreasonableness as the standard of limitation (chandra, 2004). when proportionality analysis emerged in the uk courts, wednesbury became debatable in india. however, a few scholars have called the proportionality approach mispacked for indian jurisdiction given they are invoked in other jurisdictions and are not suitable (chandra, 2004). a revisit to the previous cases suggests that the court has used ‘proportionality’ language in the context of reasonableness analysis. for example, in chintaman rao v. state of mp (1915) the court stated that: the limitation imposed on a person should not be arbitrary or excessive. the word reasonable implies intelligent care and deliberation. the quality of reasonableness cannot https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 15 be attained if, the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of art 19 are properly balanced. similarly in vg row v. state of madras (1952), the court held that in determining the reasonableness of the restrictions of fundamental rights, the court should determine the underlying purpose, extent and urgency of the evil to be remedied, proportionality of the imposition. however, the court rarely examines the necessity of measures (chandra, 2020) and also does not properly determine how measures and rights are balanced. this suggests that in the guise of articulating proportionality, the court applies the ‘wednesbury review’ (chandra, 2020). this means that a measure needs to be set aside only if a petitioner can show that the measure was so outrageous that no sensible person could have arrived at it (council of civil service unions v minister for the civil service, 1984). a careful review of cases concerning fundamental rights, from 2004 to 2016 suggests this pattern (chandra, 2020). though not a consistent structured proportionality test, sc judgements offer some common elements applied by the court in determining the limitation which suggests a wednesbury-like approach (chandra, 2020). this common structure can be focused on the worthiness of purpose, suitability of means in achieving that purpose and (balancing) whether the state is justified in limiting the right. under the worthy purpose test, the court determines if the right can be restricted under art 19 or for reasons for general public interest. there are no listed worthy or unworthy purposes as such. however, what it means is, whether the purpose is legitimate (chandra, 2020, p. 519). the suitability of means has been interpreted as requiring a direct and proximate link between the restriction and the goal (superintendent central prison v ram manohar lohia, 1960) additionally, it is emphasized by the court that such goals should be rational and not hypothetical or illusory. for example, in o k ghosh v e x joseph (1963). the court held that non-payment of taxes by one individual would ignite a revolution in the future, thereby destroying public order is imaginary. finally, in the balancing mechanism, the court balances ‘if all things considered, should the measure outweigh the right in context. the court does not perform proportionality analysis but determines what priority is (chandra, 2020, p. 529). it is not seen as an independent stage but a continuum of other stages. the court also doesn’t apply less restrictive means at this stage. the court has repeatedly held that it will not examine if a better policy could be made, or a better law could be designed. the court refuses to analyze any other method to achieve the aims of the law but only the constitutionality of the law at hand (manohar lal sharma v union of india, 2021). however, in recent cases like cases like modern dental college and research centre v. state of madhya pradesh (2016), the sc suggested that it would adopt a structured fourpart proportionality test. the issue before the court was whether the impugned legislations and rules that sought to regulate admission, fees and affirmative action in certain types of private colleges, were in breach of the freedom of occupation under art 19(1) (g) of the constitution. the majority decision agreed that the test of reasonableness in this scenario is that of proportionality. the court relied on r v. oakes (1986) a canadian test to state that the doctrine of proportionality is envisaged within art 19 itself. however, when it came to https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 16 the actual application of the test, the court went with the assumption that such a restriction on private colleges was essential in the interest of the general public without engaging with the question of the proportionality of such measures or determining if there exist less intrusive means. following this judgment, the court delivered subramanian swamy v. union of india (2016), dealing with the constitutionality of sections 499 and 500 of the ipc and section 199 of the crpc 1973, dealing with criminal defamation. it was contended that these provisions were violative of freedom of speech and expression under art 19 of the constitution. in this case, the court went with modern college's rationale that the proportionality analysis was already a part of the reasonableness test. further, the court held that such provisions did not violate free speech and expression ‘disproportionately’. as, there is a separate right to reputation, the right to free speech cannot include the right to defame others. however, the court did not even consider why ‘civil defamation’ cannot be applied as a less intrusive means in cases where the right to reputation is in conflict. very recently, the court delivered a landmark judgment on the right to privacy (puttaswamy (ii) v. union of india, 2019). the question was, ‘whether the right to privacy is a fundamental right’? in this case, the petitioners argued that the right to privacy can be limited by the proportionality test that is: 1. the action must be by law. 2. must be necessary in a democratic society. 3. interference must be proportionate to the need for such an interference. 4. there must be procedural guarantees against abuse of such interference. while the court agreed that such limitation needs to be as per the proportionality test, the encapsulation of proportionality was very different. the majority opinion stated the following as the proportionality test: 1. legitimate aim such that the goal is sufficiently important. 2. necessity of means. 3. identify alternatives to the measure. a. effectiveness of each measure b. examine the impact of each measure. c. determine if there is a preferable alternative that realizes the aim in a real and substantial manner but is less intrusive. 4. proportionality strictu sensu: this should follow the ‘bright line’ rule while balancing which means balancing based on some established rules or by creating a sound rule. the minority opinion laid down the three-fold criteria of legality, legitimacy of aims and proportionality as envisaged under the ‘procedural mandate’ of art 21 of the constitution (puttaswamy (ii) v union of india 2019, p. 504). what legitimacy entailed was to determine that the measures can be justified by law, and not to scrutinise the law as such. moreover, the proportionality limb ensures that interference with the right is not disproportionate to the purpose of the law which requires a rational nexus between the measure adopted and the aim. however, the nexus was interpreted as, if the means used could achieve the aim. https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 17 while presenting two different versions of the proportionality test the majority opinion tried to take a more scrutinised approach than the minority opinion. nevertheless, the majority test also failed to examine the law itself, that is, how it works and how it violates the rights, in the proportionality limb. it only tests for logical consistency, which is not the true test for determining how intrusive the measure is. thereby the test is less intensive so far as an examination of the necessity and effectiveness of the measure is concerned. consequently, this impacts the proportionality analysis, balancing such measures with the right in question. in effect, while the court did move slightly away from the wednesbury principle or the reasonableness analysis, it reduced the reach of proportionality analysis (louis de raedt v. union of india, 1991). 3.1. ‘non-refoulment’ in india: a fundamental right? india follows dualist system in the application of international law i.e. in order for a treaty obligation to become binding, it has to be backed by a legislative enactment. (alexander, 2021). however, given that india has not ratified the 1951 convention relating to the rights of the refugees, and does not have a comprehensive nationwide refugee mechanism the application of art 33 prohibiting non-refoulement or return of refugees to places where their lives are at threat does not find a consistent interpretation. some scholars have argued the application of non-refoulement obligations by international human rights obligations emanating from the udhr and the iccpr provisions. some have also argued direct application of the obligation as a part of customary international law extending a jus cogens or premptory norm argument in this regard. but the country’s position on customary international law and administrative practical interpretations (kumar, 2018) of the principle so far fall short in creating a binding legal obligation of non-refoulement in india. in the absence of any domestic law to this effect the judiciary approaches the question of non-refoulement from the constitutional perspective under art 21 (right to life) and utilises the international human rights convention in this context. however, the application of art 21 in non-refoulement is also debatable. for example, in hans muller of nuremberg v. superintendent, presidency jail calcutta (1955) the supreme court of india held that the government has the power to deport foreigners despite the applicability of art 21 to such cases and in loius de raedt v. union of india (1991) the court held that art 21 applies to not only citizens but also to foreigners. however, this line of jurisprudence has been applied to all subsequent cases blurring the line between a foreigner and a refugee. nevertheless, there are cases like the state of arunachal pradesh v. national human rights commission (1996) where the sc has taken a proactive approach towards refugees. it was held in this case that while the refugee applications for citizenship are due for consideration then they cannot be evicted from arunachal pradesh. recently, the court dealt with the question of deportation of rohingya refugees in mohammad salimullah v. union of india (2021). on august 8, 2017, the ministry of home affairs advised the state government through a letter, the deportation of 40,000 rohingya refugees (krishna and sanjeev, 2017). the government argued that the influx of immigrants posed a national security threat and hence needed to be deported (mohammad https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 18 salimullah v union of india 2021, rejoinder). it was also argued that art 14 and 21 apply to foreigners as well as citizens but there is no application of art 19 (1) (e) on foreigners which talks about the right to reside and settle. to this, the sc upheld the deportation. surprisingly, the court did not dwell upon the application of art 21 at all. only based on art 19 (1) (e), it was decided that foreigners could be deported as they did not have any right to reside or settle within the territory. a careful analysis suggests that the court focused on the application of ‘due process’ in returning the refugees and did not scrutinise the legality of the deportation itself. the court refused to apply the international law obligations saying that it is beyond the scope of the court’s power to analyse or take into consideration something happening in other jurisdictions. additionally, mohammad salimullah v. union of india (2021) rationale made clear that ‘national courts could draw inspiration from treaties or convention unless it is not in contravention of the municipal law.’ to locate the subject matter more inclusively, it is important to review article 51(c) of the constitution of india and the fundamental right to life under article 21. the inference that practicing non-refoulement would be against the municipal law of india, in particular the foreigners act, 1946 as it does not hold the obligation in text and spirit of the legislation and in its section 3(1) grants wide discretion to the central government to prohibit, regulate and restrict the entry of foreigners is a distasteful insinuation. the justification for collective deportations against the arguments of national security and legitimacy of power leads to rights violations explicitly recognized by the apex court in previous instances. in contrast stands the case nandita haksar v. state of manipur (2021), decided by the manipur high court. although it is a high court judgment, this case emphasized the application of art 21 of the constitution in such matters leading to a more nuanced interpretation of the issue at hand than the sc in mohammad salimullah v union of india (2021). the court highlighted the importance of providing relief from the threat of life and liberty rather than prioritizing violations of domestic laws. it carefully situated nonrefoulement within art 21 taking from the earlier jurisprudence of the supreme court supporting such a view. in the context of national security concerns, the court said that since there is no evidence to prove such a contention, it cannot be the basis for the deportation of the refugees to a place where their lives are threatened. a lens of review jurisprudence discussed before suggests that the sc has applied a wednesbury-like principle in the mohammad salimullah case (2021) whereas the high court has scrutinised the deportation based on something that inclines more towards the balancing mechanism of the proportionality analysis in nandita haskar case (2021). even if the hc did not consider necessity tests or the least intrusive means, it moved towards balancing the measure against a fundamental right to life. although this does not set a precedent for the application of proportionality analysis in non-refoulement cases, still it showcases familiarity with proportionality analysis jurisprudence and attempts to move towards something like proportionality which is not entirely wednesbury-like. hence lays down a pathway to adopt a better approach to the question of non-refoulement which stems from the constitution itself, and not from the refugee convention. https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 19 3.2. ‘rainbow of review’ in non-refoulement cases: a way forward for india? in such a context where the existing jurisprudence in india, neither supports complete abandonment of a wednesbury-like approach nor application of proportionality analysis in its true form, the court needs to aspire for something in between. this finds a place in the concept of ‘rainbow of review’ by michael taggart (knight, 2010). taggart argues that under this approach a context-specific variable-intensity wednesbury test is gradually replaced by a context-specific variable-intensity proportionality test. this means that wednesbury and proportionality can be placed on a scale and judges can move from the end of wednesbury to the other end of proportionality analysis depending upon the question of fundamental rights at hand. according to taggart at points where subwednesbury ends, proportionality review begins (knight, 2010). scholars who subscribe to monolithic proportionality review are disappointed by taggart’s qualified acceptance of proportionality in his rainbow of review approach. (craig, 2010). others like dean knight (2010) are skeptical of proportionality along with philip sales (2004) and mark elliott (2001) who advance similar arguments, albeit differently. for david mullan (2010) proportionality should inform rationality review. the frontrunning opponents of rainbow of review like professor craig along with murray hunt and philip joseph are against the hypothesis of “bifurcation” (hunt, 2009; joseph, 2007; craig, 2010). hunt specifically is vexed by the ‘rights’– ‘public wrongs’ dichotomy (hunt, 2009) and how significant it gets in practical cases. taggart while acknowledging that ‘this sort of line drawing has gone out of fashion’ noted that it ‘can appear formalistic and possibly arbitrary’. (taggart, 2008). but the same demarcation would make administrative law more predictable and would encourage ‘lawyers [to] argue and judges [to] articulate a clearly reasoned position’ in close cases (taggart, 2008). scholars who offer a variegated unreasonableness or simplified formulations of unreasonableness also seem to be disappointed (knight, 2008) as taggart proposes the eradication of such developments and for him there was no room for wednesbury’s offspring: variegated, intensified or ‘cookeian’ unreasonableness. the supremacy of the traditional conception of wednesbury unreasonableness (the ‘longstop’, ‘safety net’ or ‘residual’ kind) should be restored on this side of the rainbow. (taggart, 2008) limitations building on the recent approach of uk courts as noted earlier in the paper – around the fact that both the tests are intertwined and hardly distinguishable arguments are advanced against the scales of the variability approach. however, the difference between the two approaches placed on each side of the rainbow is not only of name but also of kind. as (srirangam, 2016) points out, the key difference lies in how each standard approaches the "relative weight given by the decision-maker" to different factors. while wednesbury focuses on whether a particular consideration was legitimate, proportionality mandates courts to assess if the weight assigned to each factor, even if legitimate, was appropriate in reaching a balanced decision. even if the argument of varied wednesbury is placed with degrees of https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 20 unreasonableness the same cannot sufficiently overcome the structure and sophistication involved in proportionality review of an administrative decision. thus, in borderline cases, it becomes necessary to acknowledge that neither proportionality nor wednesbury review are monolithic standards of review and that both exist with variable intensity depending on the context of a given case. in non-refoulement cases particularly such intensity needs to be determined on grounds of evidence suggesting national security concerns posed by the refugee and evidence of threat to the life of the refugee at hand. if the evidence suggests a real risk to national security, then the court can apply some deference under the wednesbury test, making it some sort of subwednesbury test. such a sub-wednesbury test is advocated in all human rights cases. for example, sir bingham mr’s speech in r v. ministry of defence ex parte smith (1996), where he states: in judging whether the decision-maker has exceeded this margin of appreciation, the human rights context is important. the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable. this means that in the absence of any real evidence of national security concern, proportionality analysis must be applied. from here on the proportionality review gets increasingly intrusive as the context changes from human rights to more fundamental and absolute rights. in the context of non-refoulement, it means that when there is no real evidence of a national security threat, the proportionality analysis has to be applied in its true form, most intrusively. this suggests that even wednesbury has some balancing test, however the court applies institutional deference as the court lacks the specialized knowledge often possessed by the decision makers themselves. however, when a court is approached with a fundamental question, then it takes on constitutional deference which increases the scrutiny of the decision of the decision maker. now the court’s job will turn to determining whether the decision taken falls within the range of reasonable decisions open to the decision maker. both these concepts already exist within the indian jurisprudence; however, the application is wobbly, inconsistent, and unstructured. therefore, applying these tests in a structured way, like that suggested by the ‘rainbow of review’ approach would enable the court to produce better outcomes in human rights cases and most significantly, in the contexts of ‘non-refoulement’ cases. like how in new zealand taggart’s approach is only normatively accepted through explicit means, even though its judiciary leans on contextualism and covert variability i.e. not a one-size-fits-all approach should be adopted in all cases (knight, 2010). thus, the judicial approach in new zealand regards variability is not to acknowledge it as a formal or doctrinal practice. similarly indian courts often go beyond traditional grounds of review to enforce rights, direct policies, and intervene in governmental decisions in a way that is less constrained by formal categoriesthereby being contextspecific. the kind of deference to governmental decisions implied by https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 21 taggart is not always seen in india, where courts sometimes engage in fact-finding, issue broad directives, and examine policy decisions more intrusively. this judicial tendency of ‘activism’ by the sci elevates the argument in favor of proportionality analyses in cases involving substantial rights-violation like in non-refoulement. in determining how proportionality analysis in practise can be applied to nonrefoulement cases when national security concerns exist in india, lessons can be learnt from the kenyan high court’s approach in the kitua cha sheria case (2017). the kenyan high court in the light of constitutional provision provides a guide on how proportionality analysis be applied in cases where non-refoulement conflicts with national security concerns, to achieve better outcomes for refugee protection. the reliance on foreign precedents in public law litigation is a well-established practice now persistent in the decisions of constitutional courts in common law jurisdictions such as south africa, canada, new zealand, the united kingdom, the united states of america, and india. (balakrishnan, 2010). anne-marie slaughter used the expression ‘trans-judicial communication’ to describe this trend. (slaughter, 1994). the primary reason for such practice is the similarities in the jurisprudence of indian law with that of these countries. similarly, foreign judgments are helpful when for a given question of law, no established legal position seems to emerge. the sci in many landmark judgments relied on foreign precedents to inform rights in india. in maneka gandhi v. union of india (1978), the apex court read the ‘substantive due process guarantee’ into the language of art. 21 borrowing from u.s. decisions and laid down the position that governmental action is subject to scrutiny on multiple grounds such as fairness, reasonableness and non-arbitrariness. other cases include kharak singh v. state of uttar pradesh (1963), bennett & coleman v. union of india (1973), and bachan singh v. union of india (1980) among others. following the same analogy, it can be determined how indian courts can navigate the existing kenyan jurisprudence and apply proportionality analysis in non-refoulement cases in india. to encapsulate the same, the court first must determine a real connection between the person in question and the alleged national security concern. second, it must be shown how their refoulement will ensure the security of the nation. third, the risk of danger to the person concerned be balanced with intended results for the security of the nation and see if such security can be attained without removal. this decision runs simultaneously to the fact that national security concerns cannot be compromised. however, requires the state to demonstrate how the refugees are the main source of insecurity. if the state fails to justify and meet the standards of review where no real evidence of national security threat exists, all that remains is a violation of the fundamental rights of the refugees. while such proportionality review is enabled by the constitution of kenya for the kenyan high court, the supreme court of india in the absence of similar constitutional provision, can resort to such application by taking the ‘rainbow of review’ approach for producing similar outcomes in nonrefoulement cases. https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 10.17561/tahrj.v23.8728 22 4. conclusion while the status of non-refoulement as an international obligation under the refugee convention is debatable, its presence in the form of a human right or a fundamental right cannot be dismissed entirely. this finds space in the jurisprudence of the supreme court of india itself. however, an inconsistent approach diminishes the protection mechanism offered by the non-refoulement obligation. in this context, the wednesbury-like analysis rooted in the ‘unreasonableness’ of deportation decisions which only assesses ‘due process’, as seen in the salimullah case, produces incorrect outcomes. the court’s recent trend of restraint in intervening with administrative practices in refugee cases especially given the absence of a nationwide refugee policy, reflects a distasteful precedent capable of varying interpretations in the future. the decision was devoid of a greater scrutiny of human rights violations manifested with the proportionality review established in the jurisprudence of ecthr, the uk courts, iahrs, and the african courts as already discussed. understanding variable intensity in this regard as reflecting a compromise between the principles of vigilance and restraint opens up the view to a more contextspecific variability paradigm. rights-based cases particularly need to move towards proportionality through the ‘rainbow of review’ approach. this would allow the court to apply wednesbury analysis in non-human rights cases, sub-wednesbury in qualified human rights cases and as the intensity of violation increases (absolute rights), apply true proportionality analysis. it is of value that such standard differentiation will be hard to place by courts against multiple cases practically, but the same is not impracticable. the first step towards such an assessment of judicial intervention thus will be based on one stage– whether the judges consider something had gone sufficiently wrong to justify intervention. the courts could then plot the degree of intensity on a continuum between the two practices of restraint and vigilance, explaining the contextual factors leading to such a decision. they may then apply the intensity to the circumstances of the particular case. the field of human rights would need to involve a more intensive review is already sufficiently established. summarily a careful analysis of vast number of case laws in the paper suggest that while the approach adopted by the eu jurisprudence is rather confusing, and acthpr does not guarantee its application in non-refoulement cases, it is the kenya high court that has encapsulated proportionality analysis in instances where non-refoulement conflicts with national security concerns. this comparison offers a recalibration for indian courts to restructure their non-refoulement jurisprudence based on the standard of review that is appropriately applicable in the context of each case. similarly, a uniformity in approach can be generalized once a structured analysis is formulated. the ‘rainbow of review’ thus, with all its limitations acknowledged, offers a plan for indian courts to not rely on the refugee convention or locate any inconsistency with municipal laws in concluding a decision involving non-refoulement. it does so without abandoning the wednesbury principle and by only moving across the scale of review towards a more intense proportionality analysis based on the contextual intensity of the rights violation placed before it. https://doi.org/10.17561/tahrj.v23.8728 sabreen ahmed the age of human rights journal, 24 (june 2025), e8728 issn: 2340-9592 doi: 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(2017). ‘india says to deport all rohingya regardless of the un registration’, reuters. received: 4th march 2024 accepted: 22nd october 2024 https://doi.org/10.17561/tahrj.v23.8728 proportionality analysis and non-refoulement jurisprudence in india: a comparative approach 1. rights-based context of proportionality analysis in the european legal system 1.1. proportionality and nonrefoulement 1.2. ecthr jurisprudence: from no proportionality to something illusory 1.3. proportionality analysis in the in the inter-american human rights system (iahrs) 2. african courts and the proportionality analysis: meaning and context 2.1. national courts of africa and proportionality analysis: a threshold? 3. proportionality analysis jurisprudence in india: scope for non refoulement? 3.1. ‘non-refoulment’ in india: a fundamental right? 3.2. ‘rainbow of review’ in non-refoulement cases: a way forward for india? 4. conclusion acknowledgement reference list books chapters journal articles webpages/websites/other media conference papers legal and judicial sources legal references case law newspapers realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 1 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric david tarh-akong eyongndi*, faith nwayemogho opara**, olayiwola owoade oladele***, david andrew agbu****, mary-ann onoshioke ajayi***** abstract: the decision of the supreme court of nigeria in ukeje v. ukeje is regarded as the ultimate liberation of females, particularly in eastern nigeria from discriminatory customary law which disentitles them from inheritance in cases of intestate succession. while this decision buttresses the non-discriminatory provision of section 40 of the 1999 constitution of the federal republic of nigeria, making a judicial pronouncement is different from giving effect to same. the question, therefore, is how can this decision be effectuated especially in rural areas where the people jealously guard their traditional beliefs, values and customary practices? this paper, through desk-based method with reliance on primary and secondary sources of data, interrogates how the discriminatory inheritance cultural beliefs (volksgeist) and practices of the igbo people can be synergised with the decision in ukeje v. ukeje. it argues that this will require extra-legal mechanisms like gender equality sensitisation campaigns, communal reorientation through enlightenment, and dialogue with traditional institutions. it therefore recommends dialoguing with traditional institutions and reorienting the community as measures to be adopted in effectuating the judgment in the rural igbo communities where same is opposed to their volksgeist towards fostering gender equality which is central to sustainable development goal 5. keywords: discrimination, female inheritance right, intestate succession, primogeniture rule, sustainable development goals, volgiest. 1. introduction when a person dies intestate,1 it is expected that the estate of the deceased would be distributed in accordance with his applicable personal law entitling his beneficiaries to share in the distribution of the estate through inheritance (silas & idachaba, 2020, pp. 15-26). however, under the igbo customary law system of inheritance in the south eastern part of nigeria, females are not entitled to inherit where the deceased dies intestate * ll.b (hons) unical, ll.m (ibadan), bl, phd. assistant professor, college of law, bowen university, iwo, osun state, nigeria. email: davideyongndi@gmail.com or david.eyongndi@bowen.edu.ng ** llb (hons) ekpoma, ll.m (absu) bl, barrister and solicitor of the supreme court of nigeria. email: fynopara@gmail.com *** ll.b, (hons), ll.m, bl, professor college of law, bowen university, iwo, osun state. email: layiwola. oladele@bowen.edu.ng **** ll.b, ll.m, phd. associate professor at nasarawa state university, keffi. email: davidmaisongo2@ gmail.com ***** llb (hons) llm, phd (ibadan) bl, professor, college of law, bowen university, iwo, osun state. email: maryann.ajayi@bowen.edu,ng 1 person is said to have died interstate when the deceased dies making a will. https://doi.org/10.17561/tahrj.v22.7972 mailto:davideyongndi@gmail.com mailto:david.eyongndi@bowen.edu.ng mailto:fynopara@gmail.com mailto:layiwola.oladele@bowen.edu.ng mailto:layiwola.oladele@bowen.edu.ng mailto:davidmaisongo2@gmail.com mailto:davidmaisongo2@gmail.com mailto:maryann.ajayi@bowen.edu,ng realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 2 (onuoha, 2008, p. 28). ajayi (2018, pp. 267-282) states that in some instances in some parts of igbo land, the wife is driven from the home of her deceased husband and subjected to various degrees of degrading and inhumane treatments, including but not limited to trial by ordeal to prove her innocence in the death of her husband. while it is acknowledged that no one ever determines their sex, females under the igbo customary system of succession are discriminated against because of their gender as was held in mojekwu v. iwuchukwu (2004). from time immemorial, female (women and girl child) are often perceived as second-class citizens within their communities, particularly in developing societies, of which nigeria is one (kekere, 2017, p. 202). this obvious discriminatory customary practice has thrived for decades, despite the fact that it is diametrically opposed to the right to freedom from discrimination guaranteed under successive nigerian constitutions. nigerian courts have declared this discriminatory and abhorrent customary practice not only unconstitutional but repugnant to natural justice, equity and good conscience as was held in onyibor v. anakwe (2014). ajayi (2016, pp. 244-254) examined some customary practices which revealed that in reality, some practices and the cultural reasons provided for indulging in them were in direct conflict with judicial pronouncements and legislations. in 2014, the supreme court of nigeria in ukeje v. ukeje (2014) was invited to determine the constitutionality or otherwise of the igbo customary law that prohibits females from inheriting in the estate of their deceased father who died intestate. the court concluded that the custom is unconstitutional as it violates section 42 of the 1999 constitution that protects all nigerians from discrimination, particularly on the basis of their sex and circumstances of birth which was an issue in the case. this decision has been hailed as the final nail on the coffin of discriminatory customary inheritance practices in south-eastern nigeria in particular and nigeria in general (adebayo, 2022, pp. 386-404). it was an issue that, prior to this decision by the supreme court of nigeria, there have been decisions of lower courts especially the court of appeal against such discriminatory customary inheritance practices, how then would this decision be different? this was particularly so because, the decision, as laudable as it was, seemed to be diametrically opposed to the (volksgeist) of the people (igbos) especially those in the rural areas where this practice (i.e. female disinheritance) is ingrained and predominant, bearing in mind that their belief in this custom is deep rooted and held uncompromisingly. this paper argues that stemming the negative tides of discriminatory customary inheritance law and practices in nigeria requires more than judicial pronouncements, has been done by the supreme court of nigeria, given the unalloyed allegiance that the people, especially in rural south-eastern nigeria have towards their customs. the article interrogates sociolegal means through which the inherent benefits of the decisions can be effectuated while harmoniously disembarking from the apparently discriminatory igbo customary inheritance practice. ajayi and eyongndi (2018, pp. 184-197) have argued that this chauvinistic belief has persisted and is capable of suffocating the effects of these judgments. at this juncture, it is apposite to state that the scope of this article is the igbo customary law inheritance system although, other customary inheritance systems like that of the south west (yoruba) and northern nigeria (hausa-fulani) are highlighted https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 3 succinctly. these systems are discussed in a comparative manner in order to demonstrate the inherent discriminatory nature of the igbo customary inheritance system as a springboard for advocating its abrogation despite its socio-historical antecedence. it is pertinent to acknowledge the point that significant jurisprudential ink has been spilt on this subject (kehinde, iyaniwura, and adimoha, 2022, pp. 345-369; garuba, 2018, 8499; oni, 2014a, pp. 30-43; nwakoby and ilodigwe, 2022, pp. 223-229.) however, these great intellectual works have majorly focused on judicial and legislative intervention as means of addressing the quagmire despite the fact that it has persisted notwithstanding the existence of law prohibiting discrimination coupled with other judicial pronouncements. while this article recognises the importance of judicial and statutory interventions, it argues that it requires extra-legal mechanisms to holistically address the issue in order to achieve the desired outcome. the paper is divided into seven parts; part one is the general introduction; part two examines the igbo customary system of inheritance; part three explicates the right to freedom from discrimination highlighting its nuances; part four examines statutory and judicial strides towards curbing discriminatory customary inheritance practices while amplifying on the decision of the supreme court of nigeria in ukeje v. ukeje (2014). part five assesses the judgment against the backdrop of the volksgeist of the igbo people of the south east nigeria with an attempt to gain equilibrium between the two diametrical opposed positions. part six concludes the paper while part seven provides the recommendations. 2. the igbo customary law system of inheritance examined this section of the paper examines the igbo system of intestate succession vis-àvis other predominant customary intestate inheritance systems in nigeria, drawing from their similarities and marked differences. with main focus on the igbo customary system, this paper highlights the distinctions and possible similarities in the systems of females’ inheritance rights in nigeria. from inception, the customary law on rules of succession in igbo land are not uniform although, certain similarities exist (oni, 2019, p. 18). the igbo customary law system of inheritance which is patrilineal is based on the principle of primogeniture, wherein the oldest male child has the right to succeed to the estate of an ancestor to the exclusion of younger siblings and other relations (elias, 1971, p. 120). where the deceased has no male child, devolution falls on the male sibling(s) of the deceased (ogbu, 2013a, p. 105). the primogeniture rule is the predominant customary inheritance practice in the eastern part of nigeria (olomola, 2021, pp. 358-359); with the bilinear system in afikpo and bende areas of ebonyi and abia states, where women have full legal capacity to own lands and transmit their rights and interests to others either inter vivos or at death, being an exception to the primogeniture rule (oni, 2008, p. 40). upon the demise of the founder or head of the family, his eldest male son known as diokpa, diokpala or okpala ascends the headship of the family. he inherits his father’s title known as “ofo” where one exists, personal properties as well as his dwelling house known as “obi” as was held in nwafia v. ububa (1966). the land surrounding the dwelling house is his, as well as all the economic https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 4 trees within and outside the house (nwambueze, 1974, p. 400). by his trustee position, the eldest male child exercises control over the estate of his deceased father for the benefit of the family, particularly his male siblings. the foregoing was upheld in ejikeme v. ejikeme (1972). nwabueze has opined that in reality, the eldest male child -owner of the “obi”, is a matter of exclusive occupancy as the ownership jointly belongs to all the male children as family property. the court underscored this in onwusike v. onwsike (1962) when it held that succession to land is by all the male children hence, the okpala is accountable to his male siblings and he must inform them when he desires to sell such land as they are entitled to share from the proceeds. with regards to landed property, the eldest son can inherit to the exclusion of his brothers but would allocate lands to them upon request as is held in ejiamike v. ejiamike (1972). seniority is the main criterion for ascending the headship of the family and an okpala cannot be deprived of such without his consent. it is only the father or founder of the family that can deprive the eldest male child from becoming the family head upon his demise, and this takes place through a valid declaration made prior to his death. where the diokpala is incompetent or irresponsible, the position of the headship of the family bestowed on him customarily cannot be taken away by mere removal. the only option available to aggrieved member(s) of the family, especially his brothers, is to report the diokpala to the extended family hoping for their intervention (ajabor, and ovreme, 2019, pp. 59-67). under the igbo customary inheritance system, the female child and widows have no right to inherit as is held in mojekwu v. mojekwu (1997). a daughter can only inherit where she opts to remain unmarried and stay in her father’s house with a view of birthing sons in her father’s name as was held in mojekwu v. mojekwu (1997). this is usually done where the deceased father has no male child. the urachi (as such a daughter is called), inherits both moveable and immovable properties in trust for the male child that would be born and come into the inheritance as the heir of her deceased father. this practice is to ‘save’ her father’s name from extinction owing to the lack of male children who will carry on his name. the court in ugboma v. ibeneme (1967) held that under the igbo customary inheritance system, women are not entitled to inherit land from their fathers hence, a female lacks the locus standi to bring an action with respect to title to land. a widow is entitled to live in her deceased husband’s house, subject to good behaviour or until she remarries as was decided in nezianya v. okagbue (1963). even where her husband allocates a land to her while he was alive, unless it is proven to be an absolute gift, upon his demise, it devolves on the family as family property as was held in chinweze v. masi (1989). while a daughter is not entitled to inheritance, it should be noted that the person who inherits is under obligation to maintain the daughter of the deceased until she marries and becomes financially independent as was held in estate of agboruja (1949). there is also situation where a female child chooses or accepts to remain single in her father’s house and procreate sons in her father’s name. this seemingly barbaric, obnoxious, ridiculous, and anachronistic practice is what is known as the nrachi or idigbe institution (nwogwugwu, 2014, p. 402) this practice is activated whenever the decease leaves behind a significant estate but is without a surviving male child to inherit. the urachi or idigbe is entitled to inherit both moveable and immoveable properties of the deceased. the extent https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 5 of discrimination the igbo customary inheritance practices towards women is ridiculous and bizarre. it is to the extent that a child fathered by another man is entitled to inherit the estate of a deceased instead of his biological child on the sole ground that the child is female. the nigerian court of appeal has deprecated this awful and brutish customary practice in okeke v. okeke (2017) when it held thus: a custom which enables a child born and fathered by another man to claim and inherit the property of a man who had died (sic) before he was even conceived by his mother and to disinherit the man’s biological child because she is a female is certainly inconsistent with sound reasoning. it is repugnant to natural justice, equity and good conscience. it is an affront to the natural order of human life. from the foregoing, there is no gain saying that the igbo customary law of inheritance is blatantly discriminatory against females (abdulraheem, 2010, pp. 83-93). it would appear that being a woman, within this system, is a taboo with uncountable deprivation despite the fact that no one ever decides his/her sex as argued by attah (2013, pp. 81-94). in fact ekpah and onuh-yahaya (2020, pp. 17-36) have pointed out the fact that there is an african folk song which goes thus: why did you come, o girl? when we wish for a boy? take the jar and fill it from the sea. may you fall into it and drown. it is god who has the prerogative of determining the sex of any child, but females within the society keep suffering inexpressible deprivation and hardship, contingent on their gender. at a point, the courts had taken the position that this discriminatory and inhumane treatment of females is repugnant to natural justice, equity and good conscience but unfortunately, this position was sharply jettisoned by the supreme court of nigeria in mojekwu v. iwuchukwu (2004). it should be noted that the stance taken by the court in most of these cases reflects the extreme chauvinist posture of the society as at the time the cases were litigated before the court. however, at present, there is a serious push-back and reorientation against this posture, and there has been significant progress. the influence of social media, education and enlightenment cannot be undermined in this socio-cultural renaissance in nigeria. it is expected that this current wave of cultural resurgence will be sustained until these primitive and suppressive customs (and its counterparts all over nigeria) are confined to the waste-bin of history where they rightly belong. at this juncture, it is germane to examine the historical underpinning of the igbo customary inheritance system as a ‘justification’ for its perpetuation. in the igbo community, like in most african communities, women are regarded as “weaker sex or vessels.” for instance, women do not form or join the army or warriors of a community to defend it against intruders. this is because they are believed to lack the sagacity and grit to engage in warfare. thus, men are the only ones permitted to join and form the warriors/army of the community to defend its sovereignty. the role of women is confined https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 6 or restricted to domestic affairs of home making and child rearing. a man is expected to be the protector and provider for his household. aside this, there is the belief that a man’s family line is perpetuated and sustained by his male children who would remain in his “compound,” marry wives and continue to live there after his demise. his female children are regarded as “strangers or tenants” who by the inevitability of marriage will “leave” his family (compound) to join that of their husbands, and children borne out of the marriage belongs to the husband’s family and not her father’s. thus, upon marriage, it becomes imperative for a woman to divorce herself from her father’s house by dropping his surname and taking up that of her husband’s, whose family she has now become a significant and integral part of. this customary belief posits that, to prevent a man’s wealth (property) from leaving his family to another, his daughter(s) should not be allowed to inherit immovable properties in particular since upon marriage these properties “cease” to belong to their father’s family but the husband’s. the ancestral land of the founder of a family passes unto his son from generation to generation and it cannot be sold. however, where it becomes imperative for a man to sell the ancestral land, the practice is for it to be sold to a member of the close family known as imenne or a member of the extended family called umunna, and never an outsider or stranger. in the man’s compound, there is a rallying stool known as the obi which is like a palace where the family members hold meetings. thus, during marriage, a man is expected to settle his daughter who will be leaving his family to join that of her husband. during this idu ụlọ ceremony (dowry payment), a man can give his daughter various gifts to take to her husband’s house, save for the ancestral land which in reality, belongs to the family. this is not sellable, but it must be inherited by the male children so that it does not move to another family. it will seem that an igbo man, during the idu ụlọ ceremony, can give various inheritances to his daughter, including lands especially those not situated in his village or forming part of the ancestral land. it is worthy to note that the rationale for considering females as “part time” members of a man’s family is tied to the sanctity of marriage. the igbos believe that marriage is meant to succeed against all odds. thus, disallowing a woman from inheriting immoveable properties will encourage her to work harder and ensure that her marriage succeeds, seeing that there is no property for her to fall back to if she leaves her husband’s house for her father’s. the igbos and most customs in nigeria believe that the success of a marriage is significantly dependent on the woman, and this is synonymous to the biblical prescription that a wise woman builds her home while a foolish one tears it down with her own hands (proverbs, 14:1). this belief, is believed would induce a woman to bear with the natural difficulties associated with marriage and not “find a way of escape.” unfortunately, the laudable and noble intendment of this customary belief has been negatively exploited by the males, as most women are subjected to various forms of despicable and unexplainable domestic abuses knowing that they would not be welcomed back home. thus, even in cases of domestic abuse, most women married under native laws and customs are “encouraged” to remain or even coerced back to their matrimonial homes where they have suffered severe injuries or even paid the unjustifiable supreme price of untimely death that could have been avoided. since an igbo man can settle the daughter during the idu ụlọ ceremony, it is advisable for that occasion to be used judiciously and https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 7 deliberately like a form of gift inter vivos to compensate the daughter for the ancestral land (and sometimes, landed properties in general especially those within his ancestral town) which she cannot inherit. this ceremony is a leeway to this disinheritance and should be taken advantage of by igbo fathers to the advantage of their daughters. 2.1 customary exceptions to the general rule of inheritance in igboland and others while the general position in igbo land is that females do not inherit, it should be noted that there are certain communities within igbo land where females are allowed to inherit immovable properties. for instance, in abriba community in abia state, females have the same inheritance right as the male. they can inherit from their father’s and mother’s estate although, the ancestral land as well as the headship of the family devolves on the eldest male child. also, the ngwa community in the abia state has the same inheritance rule. the justification for the eldest male child inheriting over and above his siblings, males inclusive, is not far-fetched. as the heir apparent, the image maker of the family and the custodian of the customs and tradition, he needs an estate that is commensurate with his status in order to assert his authority and influence in the community and in the family. notwithstanding the above position on igbo customary inheritance practices, there are other customary inheritance practices in nigeria, owing to her legal pluralism, that are worthy of holistic examination to ascertain their effects on the society and need for amendments, if any. for instance, discrimination against women is not limited to the igbo customary inheritance system. in northern nigeria, the indigenous hausa custom generally permits only the male children to inherit all the assets of a man who dies intestate. the female children do not inherit any property and the widow is considered as a property to be inherited, as a result, the widow is therefore not entitled to inherit because a property cannot inherit but only be inherited. the foregoing notwithstanding, there are few exceptions of hausa communities that have commendable customary inheritance practices that are gender balanced and permit the female children to inherit. for instance, the gandu community in jigawa state practises a common holding of land system comprising of two variable kinship patterns consisting of; a man, his wife(s), and other family members; his married sons and their family; or two or more siblings and their families. the head of the gandu controls the properties and allocates to members. he is responsible for the socioeconomic wellbeing of all the unit members. upon the demise of the head of a gandu, the sons who live in the compound may continue to occupy same and farm thereon until their own sons marry and partitioning becomes necessary. where the members of the gandu choose to partition the land, same is partitioned equally among all the beneficiaries by the eldest son or the brother of the deceased family head. where the deceased has widows, the unallocated land of the gandu is quickly distributed, but where he only left a wife, the allotment is postponed till her demise -if she elects to live in the deceased’s home. where one of the male siblings in the gandu dies leaving offspring(s) that are still minor, the senior surviving siblings take up paternal responsibilities towards the children and hold their inheritance in trust for allocation upon attaining the age of majority. in most cases, the deceased surviving male siblings adopt their nephews and nieces and assume control over their late father’s compound and land to their benefit. https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 8 unlike in some hausa communities where female children and males who die without male children are disentitled from inheritance, the custom of the jaba community in kaduna state permits the community head to inherit, who in turn distributes same to the community members as he deems fit. in addition, widows and daughters are allowed to inherit where there are no male relative successors. thus, such female successors can apply to the village head to take over a piece of land so long as they demonstrate that if the land is allotted to them, it would be cultivated. in kebbi state, where a man dies intestate, the male children are entitled to inherit, alongside the eldest male who is given the responsibility of coordinating the estate. subject to good behaviour, a piece of land(s) from the estate is allotted to the widow, while the remaining asset is shared amongst his extended family members as was held in shehu dalibi v. ahmadu tela (2000). it should be noted that islam, which is predominantly practiced in northern nigeria and is often the personal law of muslims, greatly impact the customary inheritance practices of this region (animashuan, & oyeneyin, 2002, p. 8). the foregoing assertion has been emphasised by ajaguna (2021, p. 359) who opined that intestate inheritance in northern nigeria is predominantly based on islamic dictates, owing to the fact that most persons within that region are muslims who are subject to the islamic injunction contained in the quran. it is not by any stretch of imagination being contended that once a person is a muslim, islamic law will automatically apply in succession to his estate. the person must manifestly demonstrate that he wants islamic law to apply in the devolution of his estate upon his death as was decided in lawal-osula v. lawal-osula [1993]. the holy quran 4:8 lays down the islamic inheritance formula to be adopted upon the demise of a person subject to islamic law: for men, there is a portion in the estate of their deceased parents and close family and for women, there is a share in the estate of their deceased parents and close family, may be it little or plenty. it is defined as inheritance. the holy quran allows a person to bequeath up to one-third (1/3) of his estate to whoever he chooses, provided the beneficiaries are to partake in the two-third (2/3) that is left over. whether the estate is large or small, a person’s estate has the following mandatory distribution: (a) payment of funeral expenses, (b) payment of any bequeaths, and (c) the remaining is divided amongst the beneficiary as pre-determined in the holy writ. where the husband dies without being survived by any issue, the wife gets one-fourth (1/4), and if he was survived by children, she gets one-eighth (1/8) of the estate. if the deceased had two daughters or more sons, they would get two-third (2/3) of the total estate. if there is only one daughter and no son, she gets half (1/2) of the estate. the predetermined quota of inheritance under islamic law has been given judicial approval by the court of appeal in ibrahim hamza v. lawan yusuf (2006). it should be noted that the quran is not averse to muslims making will. hence, quran 2:181 provides thus: when death approaches one of you, it is your duty to make a will for parents and close family members in the matter of your estate fairly. this is an obligation of the righteous. this notwithstanding, whether a muslim can make a will has remained extremely controversial under nigerian islamic inheritance jurisprudence as exemplified by the https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 9 decision in yunusa v. adesubokan (1971). the foregoing, notwithstanding, is evident that succession under the islamic injunction is fair to all the inheritors as none of them is discriminated against. in the south western part of nigeria which is occupied by the yorubas, fadipe (1970, pp. 28-44) states that intestate succession practice is generally fair and equitable. if a person dies intestate, pursuant to yoruba native law and customs, his children (both male and female) succeed the estate as a single entity as was decided in lewis v. bankole (1909). hence, as joint owners, all the children of the deceased have the right of ingress and egress. the eldest son known as the dawodu possesses the managerial responsibilities over such properties for the benefit of all others. he has no right to dispose of such properties as they are trust properties. one may wonder why the headship of the family devolves on the eldest male child and not just any child or female assuming a female is the first child? while the family headship devolution may seem discriminatory, it is not. the rationale for the headship of the family always devolving on the eldest male child of the deceased is because female children by virtue of marriage will leave the family to start a new family with their husband, and cannot therefore be reasonably expected to take up and continue the headship of their deceased father’s family. this is impracticable, as a married woman is not expected to abandon her husband to administer her late father’s estate. in salami v. salami (1924), it was in contention whether the plaintiff’s right to inherit her father’s property under the yoruba customary inheritance system was diminished by the fact that she is female. the court held that her right to inheritance was not affected by virtue of her gender, as the yoruba customary inheritance system recognises her inheritance right. in ricardo v. abal (1926), the court upheld the inheritance right of a female child (woman) under the yoruba customary inheritance system and emphasised that where a man dies intestate, leaving a male and a female child and two houses, the female child being the senior has the right of first choice as to which of the houses she prefers when the property is being partitioned as was held in barreto v. ontiga (1961). the mode of distributing the intestate estate amongst the yoruba could either be by the idi igi (per stripe) or ori ojori (i.e. per capita) (nwogwugwu, 2014, pp. 311-312). by the first mode of distribution (i.e. idi igi), the property is distributed according to the number of wives the deceased has, then the wives can redistribute to their children as in dawodu v. danmole (1962). the rationale for this pattern is to ensure that no wife feels jealous of another, as each wife is considered to constitute a branch of the family as was held in taiwo v. lawani (1961). the shortcoming of this pattern is that: a wife who has fewer children or one child stands to benefit more than a wife who has many children; the number of children does not determine the quantum of the inheritance. for the ori ojori pattern on the other hand, the deceased properties are divided equally amongst the children. in summation, both male and female children are entitled to inherit from the estate of their deceased father under the yoruba customary inheritance system. female children (women), unlike in the igbo inheritance system, are not discriminated against. the efik customary inheritance system shares striking similarities with the yoruba. under the efik system, women succeed to a man’s moveable and immoveable properties even if they are subsequently married. the eldest child of the deceased (male or female) succeeds the headship of the family. the widow of the deceased who does not remarry is https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 10 entitled to right of use over the deceased husband’s property. thus, in sharing the deceased estate, the children (male and female) take priority over the deceased siblings. in fact, in cross river state located in the south-south geopolitical zone, the issue of inheritance discrimination catered for by the efik customary inheritance system has been given legislative fortification by virtue of section 1(1) 2, and 3 of the cross river state female person’s inheritance of property law, 2007. the law provides thus: notwithstanding any native law or custom to the contrary, a female person has the right to acquire and own property. subject to any other written law and notwithstanding any native law or custom to the contrary, a female person shall share in the intestate estate of her deceased father, mother or husband in accordance with the provision of the law. a female person may be the administrator or one of the administrators of her father’s, mother’s or husband’s estate. the enactment by the cross river state house of assembly to give judicial fortification and amplification of the non-discriminatory efik customary inheritance system is laudable and in tandem with modern civilisation. it is imperative that states in the south-west geopolitical zone of nigeria which have non-discriminatory customary inheritance practices adopt the same pattern as the cross river state. this will ensure that the customary practices are statutorily insulated. women rights organisations such as the ministry of women affairs and female professional organisations like international federation of women lawyers; nigeria association of women journalists, nigerian bar association women forum, etc. can engage in campaigns promoting the enactment of laws like the cross river state at the federal level, starting with states that have the nondiscriminatory customary inheritance practices in the south west. the same campaign in form of enlightenment and literacy can be engaged and sustained in areas where the inheritance system is skewed against females. the enlightenment that such campaigns would engender can become launching pads for the abrogation of such discriminatory practices (omoleye & bolanle, 2017, pp. 357-361). 3. the nuances of the right of freedom from discrimination under nigerian law this section of the paper discusses the nuances of the right to freedom from discrimination from the domestic and international perspectives. it is important to point out that the subject of rights under the constitution of the federal republic of nigeria, 1999 is divided into two categories: the justiciable and non-justiciable rights. the latter category, contained in chapter 2 of the constitution of the federal republic of nigeria, 1999 (known as fundamental objectives and directive principles of state policy) are generally regarded as unenforceable, i.e. they are incapable of activating the adjudicatory process of the court as was held in attorney general of ondo state v. attorney general of the federation & 35 ors. (2002). thus, the former category is justiciable; meaning that upon a threat or actual violation of any of the rights the aggrieved party can approach the court to seek legal redress bobade olutide & ors. v. adams hamzat & ors (2016); (oputa, 1989, p. 19). however, where a law is made on any matter contained in chapter https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 11 2, creating an obligation to perform or forebear, that matter is automatically elevated to the status of any matter contained in chapter 4 to the extent that it becomes justiciable registered trustees of the socio-economic rights and accountability project (serap) v. federal republic of nigeria & universal basic education commission (2007), socioeconomic rights and accountability project (serap) v. federal republic of nigeria (2008), (govindjee and taiwo, 2011, pp. 92-94). section 42(1) of the constitution of the federal republic of nigeria, 1999 provides that a citizen of nigeria of a particular community, ethnic group, sex, religion or political opinion, place of origin or sex shall not suffer any form of deprivation, disability or restrictions which others are not subjected to uzoukwu v. ezeonu ii (1991). thus, in the application of any law, executive or administrative order, no citizen shall be accorded privileges which are not accorded to others lafia local government v. government of nassarawa state (2012). since no one ever determines the circumstances of their birth, the section further provides that no one shall be subject to any deprivation anzaku v. governor, nassarawa state (2005). in nigeria, section 42(1) of the constitution of the federal republic of nigeria, 1999 contains the prohibited grounds or degree of discrimination in nigeria which is subsequently discussed hereunder. from the opening sentence of section 42, it should be noted that the right is only guaranteed to nigerian citizens whether the citizenship is by birth, naturalisation or registration in accordance with section 25 of the same constitution. the rationale for the reservation of this right to only nigerian citizens is not far-fetched. this is because the items to which the right relates (e.g. property, governance, employment, etc.) are proprietary in nature. hence, only citizens do have and can enjoy such right/benefits. this is by no stretch of imagination advocating that persons who are lawful residents of nigeria, but who are not citizens would be discriminated against as the law has pigeonholed their rights and bestowed on them certain rights for their comfortable residence in nigeria. the question may be asked: what is discrimination? the united nations human rights committee under the international covenant on civil and political rights 1966 defined discrimination in an elaborate manner as any distinction, exclusion, restriction, or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. thus, these practices persistently violate fundamental human rights despite the surfeit of laws prohibiting discrimination on account of sex (ajayi, 2013, pp. 47-57). at the international plane, the right to freedom from discrimination is recognised by several international legal instruments. article 2(1) of the universal declaration of human rights 1948 recognises this right. articles 2(1), 20(2) and 26 of the international covenant on civil and political rights recognise this right (olomojobi, 2018, pp. 297299). article 1 of the united nations declaration on the elimination of all forms of racial discrimination prohibits all forms of discriminations. article 1 of the united nations convention on the elimination of all forms of discrimination against women 1979 prohibits all forms of discriminatory practices against women while article 2 enjoins state parties to enact laws abolishing all existing discriminations against women (ezeilo, 2011, pp. 50-58). articles 2 of the african charter on human and peoples rights and the protocol https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 12 to the african charter on human and peoples rights on the rights of women in africa prohibit all forms of discrimination particularly on the account of sex and circumstances of birth. it is apposite to note that the right to freedom from discrimination is intrinsically tied to the right to equality (olomojobi, 2018, pp. 30-31). in fact, the failure of equality will result in discrimination. the united nations humans rights commission had observed that non-discrimination together with equality before the law and equal protection of the law without any discrimination constitutes the basic and general principle relating to the protection of human rights (human rights committee general comments, 1989). it has been stated that section 42 of the constitution of the federal republic of nigeria, 1999 contains the prohibited grounds of discrimination. ogbu (2013b, p. 379) has opined that the unacceptable criteria for discrimination which the constitution forbids are based on a citizen’s ethnic group, place of origin, sex, religion, political opinion or the circumstances of one’s birth. in adamu v. a.g. borno state (1996), the appellant (and other parents) were made to pay a fee for their children to study christian religious knowledge while gwoza local government paid teachers teaching islamic religion knowledge. the court of appeal held that although education is a non-justiciable right however, where a government chooses to implement any non-justiciable right, it cannot do so in a discriminatory manner else, the aggrieved citizen has a right to seek redress. it concluded that the action of the respondent amounted to an infraction of the appellant’s right to freedom from discrimination and religion enshrined in sections 42 and 39 of the constitution of the federal republic of nigeria, 1999. the discrimination in this instance falls under the prohibited range. in igbozuruike & anor v. onuador (2015) where the respondent was denied the right to the title of mgbala which was bestowed on him by his mother on the ground that he was born out of wedlock, the court of appeal held that, the denial was unacceptable as it pertains to the circumstances of the respondent’s birth which is offensive to section 42(2) of the constitution of the federal republic of nigeria, 1999. in lafia local government v. government of nassarawa state (2012) where the governor of nassarawa state directed all members of the unified local government staff serving in various local governments councils other than theirs to relocate to their own local government, the supreme court held that the directive runs afoul to section 42(1) of the constitution of the federal republic of nigeria, 1999 as it is discriminatory on account of ethnicity and place of origin. in mojekwu v. ejikeme (2000) where the daughter of the deceased was disallowed from inheriting her deceased father’s estate on the basis of being a female, the court of appeal held that the customary disentitlement of the daughter was averse to section 41(1) of the constitution of the federal republic of nigeria, 1999 because it amounted to gender discrimination. it should be noted that section 42 of the constitution of the federal republic of nigeria, 1999 could be invoked where the discrimination is premised on any law, quasi-judicial, executive or administrative action as was held in anzaku v government of nassarawa state (2005). the point should be made that the act of discrimination especially based on gender is tantamount to violation of the dignity of the human person of the individual it is directed at. human dignity requires that every human being is treated https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 13 humanely and fairly. to this end, any treatment, either by commission or omission that is capable of eroding, prejudicing or lowering the esteem of a human being in the eyes of ordinary members of the society, causing the victim to have a feeling of being less human or undeserving is impugning the dignity of the human person of the individual. it should also be noted that the right to human dignity which is tacitly infracted through the act of discrimination is expansive and explosive in nature. section 34 of the constitution of the federal republic of nigeria, 1999 which provides this right, envisages that no person shall be subjected to torture or inhumane or degrading treatment. this prohibition is patterned after the provisions of article 3 of the universal declaration of human rights, article 5 of the 1981 african charter on human and peoples rights, and articles 3 and 4 of the 1950 european convention on human rights. torture within the prism of section 34(2) of the constitution of the federal republic of nigeria, 1999 is not limited to means by which intentional severe physical pain is inflicted on a person but encompasses emotional, psychological and mental pain. the prohibition here relates to acts/omissions that are capable of inflicting both physical and mental/emotional pains which discrimination is (ogwuche, 2008, pp. 815-816). every human being, irrespective of sex or any distinguishing feature, has an inherent modicum of self-worthiness, respect or feeling of being human and should therefore, be treated in a way that does not impinge on this self-worthiness. therefore, when a person is discriminated against on the basis of gender (as it is mostly the case under the igbo customary inheritance system, where females are disentitled from inheriting), the feelings a victim has is that of being considered less human or unfortunate. the pains (emotional and psychological) that such feelings inflict are unquantifiable and unbearable. from the foregoing, it should be noted that a discriminatory act/omission only becomes opprobrious, reprehensible, morally objectionable and legally unsustainable once it is based on considerations that are irrelevant. for instance, giving of preference or certain advantages to persons with disability would not be viewed as negatively discriminatory or attract opprobrium from the citizenry because such preference or advantage is relevant and justifiable in the circumstance (feldman, 1993, pp. 854-855). in this regard, ogbu (2013a, p. 375) has rightly posited that the outlawing of certain types of discrimination is justified on the basis of the simple premise that there are certain criteria for treating people differently which should never be regarded as normally relevant, or which are relevant in an admissible way only in restricted range of situations defined under the law. adelakun and ajayi (2020, pp. 244-251) have argued that discrimination is a violation of the dignity of the human person. according to ajayi (2017, pp. 39-54) it erodes the self-worth and esteem of the victim in an atmosphere of “not for someone like you or people like you.” it tends to leave the victim with the false imposed thought of unworthiness. at times, it is done at the expense of competence while promoting mediocrity or other unjustifiable considerations. the point should be stressed that section 42(3) of the constitution of the federal republic of nigeria, 1999 is an exception to the non-discriminatory regime. it provides that a law shall not be invalidated by reason that it imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the armed forces, https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 14 nigerian police force or a body established by law in force in nigeria. this provision gives impetus to sections 14 and 15 thereof, which jointly project the doctrine of federal character as defined in section 318 of the constitution of the federal republic of nigeria, 1999. interestingly, the derogation from section 42(1) of the constitution of the federal republic of nigeria, 1999 shall only be unassailable if it is premised on a law as expressly stated in the proviso (odikpo, 2020, p. 68). the implication of the foregoing is that the proviso cannot be effectuated based on administrative or executive action. one may wish to interrogate the propriety of section 55 of the labour act, 1974 vis-à-vis section 42(3) of the constitution of the federal republic of nigeria, 1999 which prohibits women from underground and night work except as nurses or in managerial capacity. while the prohibition would appear as seeking to protect women, same is blatantly discriminatory in nature. restrictions should not be imposed on where or when a person can work simply on the account of gender. today, we live in an adventurous world where gender roles and occupational choices are fast disappearing as there is hardly any profession or vocation that can be strictly termed as fitting for male or female. thus, denying women the opportunity to be employed in underground work or work at night save as managers or nurses under the guise of protection is discriminatory as one cannot wish away the possibility that there may be women who desire and would really want to work in such an undertaking or at such hours but have been disallowed. eyongndi (2022, pp. 1-25) has opined that the section ought to have allowed everyone the opportunity to work when and wherever they desire without placing any form of chauvinistic restriction. this is discrimination in disguised cloak, and it is worrisome that the same has statutory flavour. gender equality is one of the united nations sustainable development goals, its actualisation is of enormous developmental benefits, especially given the historical subjugation of women in african societies, particularly in nigeria. the actualisation of this sustainable development goal is an indication of wholesomeness and civilisation as both men and women are endowed with abilities, which if properly cultivated and given the right opportunity for exploitation, humanity would immensely benefit. 4. explicating the scn decision in ukeje v. ukeje this section of the paper contains a brief fact of the supreme court of nigeria in ukeje v. ukeje (2014) and its implication on the igbo customary inheritance system as a precursor to the preceding section, which seeks to create a balance between the decision and the volksgeist of the igbo people. in this case, one lazarus ogbonnaya ukeje died intestate in 1981 leaving real properties in lagos where he had resided most of his life. the wife of the deceased and his son obtained letters of administration over his estate. when the plaintiff became aware of this, she filed an action at the high court of lagos state wherein she claimed to be the daughter of the deceased and by virtue of this she was entitled to share in the estate of her late father. she testified and called her mother to testify in support of her claim. the respondents contended that the plaintiff is not their late father’s child and even if she was, she was born out of wedlock and being a female she cannot inherit real and immovable property under igbo customary law which regulates the devolution of the deceased estate. in its judgment, the trial court found that the plaintiff/respondent was the daughter of the deceased and is therefore entitled to share in the distribution of his estate. being dissatisfied, the appellants appealed the decision of https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 15 the trial court to the court of appeal, which dismissed the appeal as being unmeritorious as it seeks to discriminate against the respondent. further dissatisfied, they appealed to the supreme court of nigeria. the supreme court of nigeria coram rhodes vivour jsc (as he then was), held that irrespective of the circumstances of the birth of a female child, she is entitled to an inheritance from her late father’s estate. consequently, the igbo customary law which disentitles a female child from partaking in her deceased father’s estate is in breach of section 42(1) and (2) of the constitution of the federal republic of nigeria, 1999 fundamental rights provisions guaranteed to every nigerian. thus, the court concluded that the said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the constitution of the federal republic of nigeria, 1999 ukeje v. ukeje (2014). this judgment bequeaths inheritance right to moveable and immovable properties to females. ogunbiyi jsc poignantly described the customary law in question as uncivilised and primitive, which tends to perpetuate male dominance, as well as punish the course of nature, as no one is capable of choosing his or her sex but their creator. the law lord admonished that those who fan to flame the embers of this barbaric culture should be deprecated by the society, especially in this 21st century. several legal pundits have hailed this decision as the final nail on the inglorious coffin of the dastardly discriminatory igbo customary law (aladetola, 2020). the judgment is a judicial reinforcement of the position earlier taken by the court of appeal per niki tobi justice of the court of appeal (as he then was) in mojekwu v. mojekwu (1997) wherein it declared as being contrary to natural justice, equity and good conscience, the nnewi oli-ekpe customary law practice, which entitles the son of the brother of the deceased to inherit the deceased’s property, to the exclusion of his biological female children since the primogeniture rule does not recognise the right of females to inherit ajilere, (2020, pp. 30-36). although, this decision was reversed by the supreme court, the decision in ukeje is a welcome return to it. it has established beyond any iota of doubt the discriminatory nature of the igbo customary inheritance system, and affirmed the unassailable right of females irrespective of the circumstances of their birth as was held in odum v. uchendu (2015). the judgment has established the locus standi of female children to institute proceedings for inheritance since it has removed hitherto, the customary barrier placed on them. the reason is that, by the pronouncement, the supreme court of nigeria has clearly established that any biological child of the deceased including females can bring proceedings to protect their estate or share in it as was decided in alaribe v. okwuonu (2015). in fact, kekere (2017, pp. 212-214) has described the decision in ukeje’s case as the panacea to discrimination against women and female children under the igbo customary law inheritance system. the learned writer further argued that, from the religious standpoints, both islam and christianity support female inheritance. for instance, the holy quran prescribes the share male and female children and close relations of a deceased are entitled to. in the same vein, the holy bible records that when zelophehad died intestate, having only female children who were prohibited from inheriting under the primogeniture nature of hebrew customary law of inheritance, the deceased daughters approached moses and demanded for their father’s inheritance. upon inquiry from god, moses was ordered to grant their request hence, they were https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 16 given their father’s inheritance despite being females, and contrary to the prevailing customary inheritance practices as recorded in the book of numbers 27:1-8. however, a further reading of the biblical account referenced by the writer, shows that god directed moses to grant the request of the daughters of zelophehad (and pronounced it a law in israel) but emphasised the need for the inheritance to remain in the deceased’s tribe/family. this is the underlying philosophy of primogeniture. it is to guide against transference of inheritance from one tribe/family (as the case may be) to another. the belief of primogeniture adherents is that, a man’s property should not be moved or taken over through the instrumentality of marriage by another family that has not laboured for it. thus, it is believed that permitting a female to inherit her father’s properties especially immovable properties will be tantamount to moving or transferring the ownership to her husband, who is not related by blood to the deceased because, a man’s properties should remain within his family. this belief is deeply rooted and strong and it will take more than a judicial pronouncement or renunciation to eradicate it (unigwe, 2021). the point must be made that disinheritance in igboland is prominent and nourished by customary practices as argued by ajayi (2021, pp. 1-32). where a deceased has executed a valid will, it is safe and logical to conclude that disinheriting any person who has been made a beneficiary under the will is impracticable. thus, testate succession or gift inter vivos is a leeway through which a man can make adequate provision for his wife and female children, since customary practices cannot override such statutorily recognised and edified practices. while there is a general apathy amongst nigerians (elites inclusive), it would appear that making a will is an escape route from this form of discrimination. thus, it is imperative for literacy and enlightenment to be aggressively undertaken to educate persons on the need for and importance of making a will. the possibility that most persons are unaware of the benefits of making a will cannot be overemphasised, just as the importance of executing one cannot as well be over emphasised. this is not to say that a person’s testamentary capacity is untrammelled or absolute as same is delimited by his applicable personal law. however, where such personal law seeks to disinherit a beneficiary, the existence of a will gives the court impetus to declare same unfair and inapplicable. one of the ways to stem this practice is to galvanise the power of social media through the activities of social media influencers deprecating this customary practice. also, the need to engage socio-cultural activities by women right crusaders and defenders amongst young persons and youths in the south eastern will lead to reorientation against this practice. the ultimate is that all hands must be on deck in the fight against this cultural menace. 5. reconciling ukeje v. ukeje with the igbo volksgeist through extralegal mechanisms the point should be made that the aim of this section is to evolve a synergy between the judgment of the supreme court and the prevailing igbo customary inheritance system (using the concept of the volksgeist) which has been discussed above. as has been reiterated, this inheritance system disentitles females from inheriting immovable properties of a deceased progenitor, particularly the ancestral land. it is believed that, so long as the beliefs of the igbo people, and by extension other customs, https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 17 remain diametrically opposed to the position enunciated in the judgment, which is likely to persist, the citizenry will remain in a socio-legal dilemma. hence, it is important to create a symbiotic coexistence. the coinage “volksgeist” is indisputably associated with fredrick karl von savigny who is the pioneer of the historical school of jurisprudence (wigwe, 2011, p. 247). he rejected in its entirety, the postulations on positive and natural laws dias, (1985, pp. 376-377). although, the concept of volksgeist was originated by savigny, it should be noted that he was inspired by the earlier jurisprudential efforts of thibaut of heidelberg, who in 1814 had advocated for the codification of roman law on the lines of the code of napoleon. aside the stimulus by thubaut, that led to the rise of the historical school, other factors such as the unhistorical assumption of the positive and natural law schools, which were considered shallow and untrue, thereby necessitating realistic investigations into historical truths strengthen the position. the attempt to found legal systems based on reasons without reference to historical or present circumstances had culminated into revolutionary outcomes which savigny, as a conservative statesman was averse to. he studied the development of roman law in medieval europe; he was not against reforms, but maintained that reforms that went against the stream of a nation’s continuity were doomed. thus, an essential prerequisite that he maintained for the reform of roman law was a deep knowledge of its history (mahajan, 1987, p. 486). he warned that legislators should look before they leap, by ensuring that legal reforms are predicated on history of the society (ladan, 2010, p. 60). according to savigny, the nature of any particular system of law is a reflection of the spirit of the people who evolved it. a law is the manifestation of the common consciousness of the people. the broad principles of the legal system are to be found in the national spirit of the people, otherwise referred to as the volksgeist. the volksgeist is a unique ultimate and often mystical reality, which is inseparably linked to the biological trait of a people (adaramola, 2008, p. 298). the volksgeist phenomenon is anchored on the belief that, all laws originate from customs juristic activity(ies) and must only be cautiously superimposed upon it, so as to ensure the continuous action of the national spirit on its development. law, born with the nation, state or locality, grows and dies with it. he therefore concludes that, since custom (volksgeist/national spirit) not only predates and precedes legislation, but is at the same time superior to it, legislation is indubitably subordinate to volksgeist/national spirit, and must therefore inexorably conform to the popular consciousness. in fact, the volksgeist has negatively impacted many penal laws in nigeria. for instance, the offence of bigamy created by section 370 of the criminal code of nigeria has no reported case in nigeria where someone has been prosecuted despite its numerous occurrences (lateef & adegbite, 2017, pp. 91-118). the likely explanation for this lack of prosecution is the general belief of africans in polygamy, and anything which impinges on this volksgeist, stands the risk of opposition. this concept would require that, both legislation and judicial decisions (which is law in the form of judicial precedent or the prophecy of the court as holmes puts it) must necessarily align with the customs/traditions of the people which represent this national consciousness (volksgeist). any law, whether as enacted by the legislature or https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 18 judicial pronouncement, which is antithetical to the volksgeist, is likely to be rejected or rebelled against by the people, since it is a representative of their popular or national consciousness. it is beyond contestation that the ukeje’s case is a welcomed development in this jurisprudence of inheritance in igbo land. in fact, judicial activism and creativity are sine qua non in accentuating female dignity and property rights as been done by the supreme court of nigeria. the issue however is, are judicial pronouncements invalidating the apparently discriminatory customary inheritance practices the end of discussion? or is it uhuru as commonly asked in the nigerian parlance? from the preceding section, it has been observed that igbo volksgeist on inheritance generally disinherits females. this custom permeates significant parts of igbo land, and is promoted by strong adherents (ephraim-chukwu, 2019, pp. 264-272). in fact, this customary practice continues to prevail particularly in the rural areas despite opposing legislative and judicial intervention including the supreme court of nigeria pronouncement in ukeje’s case. the adherents to this custom or “the customary people” are placed in a somewhat middle way between their unalloyed allegiance to these customary beliefs and practices alongside the legislative cum judicial pronouncements annulling same. of course, this judgment can be easily exploited in urban areas like lagos, ibadan, port-harcourt, kano, asaba, oweri, etc. owing to the overwhelming influence of education, civilisation and possible public opprobrium if the contrary is dared, but the same cannot be said of core remote and typical ancestral ethnic enclaves in the rural areas, which is where these discriminatory practices are rigorously practised (okwuchukwu, 2021, 75-83). in fact, oni (2014b, pp. 138-155) has reported the biases of some prominent community leaders in the south eastern part of nigeria regarding the judgment. for instance, the traditional ruler of uhokaihs autonomous community in obingwa local government area of abia state commenting on the judgment stated as follows: the judgment will be subjected to traditional principles and practices of inheritance. our community does not have any business with the supreme court, before the verdict, the community had an existing and generally acceptable way of dealing with such issues. the culture of the will fight those judgments, it is not the people that will fight those judgments but their culture will fight those judgments. the judgment looked at fundamental right of the individual. the culture of the people must prevail. in the same vein, the traditional ruler of okwo aja community, eze clement offia chukwu, described the judgment as “judicial jingoism.” he noted that the judgments did not take into consideration the culture of the igbo people before they were delivered. it is obvious that the decision of the supreme court seems opposed to the volksgeist of the adherents of the primogeniture customary inheritance practice of eastern nigeria. the thesis here is not whether the decision is desirable, as that is beyond contestation, it https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 19 is rather, how the decision can be exploited in areas of the society where this practice is predominant and the adherents are likely to be resistant. it should be recalled that the infamous osu caste system in the eastern part of nigeria persisted even when judicial pronouncements declared it discriminatory and repugnant to natural justice, equity and good conscience. however, extra-legal measures were adopted such as enlightenment campaigns by various opinion shaping groups (especially religious leaders), to abate its continuous abrasive practice (nwokeoma, 2018). the influence traditional and religious leaders’ play in sharpening public morality, especially in nigeria where there is enormous respect for religious and traditional institutions, cannot be overemphasised. hence, same should be maximised. the importance and impact of public enlightenment as a means of reorientation cannot be overemphasised. it is needless to argue that most igbos, even the educated ones, despite the blatant absurdity of the general discriminatory intestate inheritance practice towards females, they feel overpowered or are subdued by this practice or are sentimentally attached to its pervasiveness. it is our considered view, that while the decision is a welcomed development, its implementation will require more than just having a court judgment. it will require more than “mere” court pronouncement to abrogate the practice as it is an ideology deeply rooted among its adherents. to abrogate customary ideologies such as this practice, it requires rigorous reorientation through public enlightenment. thus, there is a need for various stakeholders, particularly the ministry of women affairs at federal and state levels, non-governmental organisations, women rights organisation like international federation of female lawyers, nigeria association of women journalists, etc. to adopt extra-legal interventions, through enlightenment campaigns to core areas where this practice is ingrained with a view to educating the populace of its adverse effect. criminalisation of such practice with heavy punitive sanction is an extra-judicial measure that is potent in stemming the ugly tide. punishment has both deterrence and retributive potencies. where an act/omission is criminalised with well-defined sanction, anyone that runs afoul is sanctioned. the effectuation of sanction positively constrains the culprit from further default, while deterring others from similar infractions. in addition to the measure of reorientation through enlightenment, the houses of assemblies of the various states in the south east of nigeria should enact laws prohibiting this practice. ajayi and eyongndi (2023, pp. 205-224) have opined that the government has the duty to ensure that discrimination, in whatever form, does not thrive in nigeria. this culturally inspired and sustained discrimination deserves urgent governmental legislative attention. government agencies, charged with human rights protection and promotion, such as the national human rights commission should invoke its inherent powers under the enabling law to sensitise, investigate and apprehend cases of violation, and make recommendations to the attorney general of the federation (or his nominee) for possible prosecution. these means permit the people to express their apprehension on their perceived attack on their customs and thereafter lay bare their idiosyncrasies. thus, realising female inheritance rights in south east nigeria goes beyond legal rhetoric and requires socio-legal approach. it has become imperative to aggressively sensitise igbo men of the need to execute wills, because the issue of disinheritance is likelier and higher https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 20 in cases of intestate succession compared to testate successions. however, where the deceased had executed a will, upon his demise, the will, like common law, will speak from the grave dictating how his estate is to be distributed. unfortunately, most persons erroneously believe that once one makes a will, death is nearby. this fallacious belief has repelled many persons from making a will despite its many benefits. subject to recognised customary laws, once a testator has validly executed a will, his estate would be shared and ministered in accordance with his dictates as contained in the will. by this, a father can make adequate and necessary arrangements for his vulnerable dependants, especially his wife and daughter(s). it is imperative for women in nigeria to intensify the campaign against all forms of anti-women practices. in nigeria, there is a history of women resistance to injustice and discrimination in the pre-colonial and post-colonial eras. for instance, the egba women in 1914 and 1947 vigorously protested colonial tax regime which culminated in the formation of the abeokuta women’s union in 1946. the union comprised of elites and non-elite women of the egba extraction. thus, between 1925 and 1928, women from calabar, aba and owerri called the dancing women movement resisted cultural imposition, introduction of adverse system of governance and payment of taxes by women, and in 1953 the nigerian women society was formed, while the national women council was inaugurated in ibadan in 1959 (oniyide & ayo, (2015, pp. 167-182). 6. conclusion extrapolating from the above analyses, it is clear that the igbo customary inheritance system, which is based on primogeniture, disentitles females from inheritance. this practice has been held to be discriminatory as it runs afoul of section 42 of the constitution of the federal republic of nigeria, 1999 which prohibits discrimination against any nigerian citizen on the basis of sex. the decision in the case of ukeje has been embraced in the jurisprudential development of the inheritance system. despite being a welcomed development, the decision is a disruption of the volksgeist of the adherents of this customary practice, which might pitch them against same. thus, the implementation of the judgment faces an ideological challenge. it is therefore imperative to explore sociolegal measures to ensure that the gains of the decision are maximally realised, especially in rural areas where this discriminatory practice is egregiously entrenched. unless the volksgeist of the people synthesises with the spirit of the judgment, given that both are ideologically opposed, they will continue to subsist as strange bed fellows instead of the desired symbiotic co-existence. 7. recommendations based on the findings above, it is recommended that non-governmental organisations, the federal ministry of women affairs, as well as its states’ counterparts organise sensitisation programmes in the rural areas where this practice is vociferous, and also engage the adherents with a view to enlightening them on the ills of this practice. this presents an opportunity to disabuse the mind of the adherents, and allay their fears and suspicions of disruption and displacement of their cherished cultural practice by civilisation. https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 21 there is a need to engage with the traditional institutions represented by the traditional rulers and chiefs (title holders) in the communities, where this discriminatory inheritance practice is being practised to garner their support in abrogating such customary practices. the chiefs and traditional title holders are the custodians of customs and traditions and the controlling minds of the community. there should be a gradual reorientation of these elders, since they are the custodians of traditions. custom has been described as flexible, however evidence abounds that it could be selectively flexible. it is only when there is a belief in the need for a change that the custodians of custom will call for a change. there is a need for the national assembly to give legislative fortification to the decision in the case of ukeje; and this can be achieved by amending the criminal and penal codes to insert provisions that specifically criminalise these acts. the fear of criminal sanctions is capable of achieving deterrence. moreover, the power of the social media in enlightenment and reorientation in the 21st century cannot be overemphasised. it is almost impossible to come across a young nigerian who does not use the social media. thus, women rights groups should deploy social media through the use of social media influencers to reorient the young persons and youths in the areas in the south east where this harmful discriminate cultural inheritance practice is prevalent. women rights and interest groups such as the international federation of women lawyers and nigeria association of women journalists should aggressively engage in enlightenment and sensitisation campaigns of women on the legal implications of the judgment and the need for them to assert their equality to inheritance. this will enable women who are victims to speak out. also, pro bono legal services, including litigation where it becomes inevitable, should be accorded to women. furthermore, through social programming, these women rights groups and defenders should sponsor socio-cultural and edutainment activities amongst young persons and youths within the areas where this inhumane and inhuman discriminatory cultural practice is prevalent in the south east. such activities, will serve as the springboard for social reorientation towards persuading the next generation to abandon such practices with the hope that, sooner than later, same will die a natural death. the print and electronic media, as the conscience of the society, should be saddled with the responsibilities of publicising and sensitising the public on the implications of the judgment, and creating awareness amongst the populace who might be adversely affected. the awareness created is capable of forestalling disobedience of the judgment due to ignorance which in anyway is not an excuse to a legal obligation. it is also recommended that the national human rights commission should invoke its inherent powers under its enabling statute to come to the aid of vulnerable girls and women who might be victims of this discriminatory practice. this can be achieved when https://doi.org/10.17561/tahrj.v22.7972 realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 22 the commission conducts surveys, enlightenment campaigns and investigations with a view to reporting to the agf or his nominee of any infraction for necessary action. moreover, igbo men should be encouraged to write wills. once a testator has validly executed a will, upon his demise, subject to his prevailing customarily law which regulates his testamentary capacity, his estate will be shared in accordance to his will. most men still have the misconception that making a will is equal to a death sentence. nothing is farther from the truth than this. making a will is capable of preventing rancour with regards to the sharing and administration of the deceased’s estate. the federal government of nigeria through the ministry of gender and women affairs, as well as the federating states, should design and implement programmes aimed at achieving goal 5 of the sustainable development goals i.e. gender equality through enlightenment campaigns and empowerment of women in general. reduction of poverty amongst women, as well as political empowerment are panaceas to the menace of gender discrimination, especially through propagation and promotion of campaigns against inhumane, barbaric and dehumanising cultures and customary practices like female disinheritance. also, igbo men should be encouraged to take advantage of the idu ụlọ ceremony (dowry payment) that takes place during marriage ceremony, as this allows them to settle their daughters at the point of marriage as a reasonable compensation to them (inheritance wise) for the ancestral land (and indeed, landed properties in general) which they are not allowed to inherit. furthermore, there is the need for the state houses of assembly within the south-east geopolitical zone to enact penal legislation criminalizing women/female disinheritance. the fear of sanction is capable of achieving deterrence. this should serve as complimentary to sensitisation of the populace on the negative impact of such practice(s). references 1999 constitution of the federal republic of nigeria cap. c23 (2004). laws of the federation of nigeria. abdulraheem, n.m. (2010). rights of women in pre & post-colonial era in nigeria: challenges for today, (2010) 3(2) article of public law 83-93. adamu v. a.g., borno state [1996] 8 nwlr (pt. 465) 203. adaramola, f. (2008). jurisprudence 4th ed, durban: lexisnexis. adebayo, a.k. (2002). “an appraisal of customary succession in the western and eastern part of nigeria” 8 commonwealth law review journal 386-404. adelakun, o.s. and ajayi. m.o. (2020). “eliminating discrimination and enhancing equality: a case for inclusive basic education rights of children with albinism in africa” 22(2) nigerian journal of medicine 44251 african charter on human and peoples rights 1988. https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 23 ajabor, i. and ovreme, .o.a. 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(2017) “panacea to the discrimination against women and females child under the igbo and yoruba customary laws on inheritance” 5(1) akungba law journal 189-209. https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 25 labour act cap. l1 laws of the federation of nigeria 2004. ladan, m.t. (2010). introduction to jurisprudence, ibadan: malthouse. lafia local government v. government of nassarawa state [2012] 17 nwlr (pt. 1328) 94. lateef, m.a. and adegbite, n.k. (2017) “bigamy and the dearth of prosecution in nigeria” oau journal of public law 91-118. lawal-osula v. lawal-osula [1993] 2 nwlr (pt. 274) 158. lewis v. bankole (1909) 1 nlr 82. mahajan, v.d. 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(2013b). human rights law and practice in nigeria, 2nd ed., enugu: snaap press nig. ltd. ogwuche, a.s. (2008) compendium of law under the nigerian legal system 2nd ed., lagos: tama productions. okeke v. okeke (2017) 9 nwlr (pt. 1571) 439. okwuchukwu, a.p. (2021). “the women’s place in family inheritance in igboland: a rational and legal critique” 1(1) nnadibube journal of social sciences 75-83. olomojobi, y. (2018). human rights and civil liberties in nigeria 2nd ed, (lagos: princeton & associates publishing co. ltd. https://doi.org/10.17561/tahrj.v22.7972 https://punchng.com/ending-obnoxious-osu-caste-in-igboland/ https://punchng.com/ending-obnoxious-osu-caste-in-igboland/ realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond legal rhetoric the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 26 olomola, o.o. (2021) family law and succession in nigeria (lagos: princeton & associates publishing co. ltd. omoleye, b.o. & bolanle, e. (2017). “the status of women under international legal instruments and african customary law: two normative systems in perpetual conflict?” 8 ekiti state university law journal 357-361. oni, b.a. (2008). “the rights of women to inheritance under nigerian law: an evaluation” 2 nigerian journal of african law 40. oni, b.a. (2014a). “good riddance: supreme court judgment on female inheritance in igbo land upholds gender equality” 29 journal of private and property law 145-164. oni, b.a. (2014b). discriminatory property inheritance rights under the yoruba and igbo customary law in nigeria: the need for reforms 19(2) journal of humanities and social sciences 30-43 oni, b.a. (2019). the law of succession in nigeria: principles, cases and practice (unilag press and bookshop ltd, lagos). oniyide, o.a. and ayo, t.e. “an appraisal of the international and domestic legal framework for children and women’s right protection in nigeria” (2015) 1(3) afe babalola university law journal 167-182. onuoha, r.a. (2008). "discriminatory property inheritance under customary law in nigeria: ngos to the rescue"10(2) the international journal of not-for-profit law 10-32. onwusike v. onwsike (1962) 6 e.n.l.r. 10. onyibor v. anakwe (2014) (pelr 22697(sc). oputa, c.a. (1989). human rights in the political and legal culture of nigeria. nigerian law publication, lagos. protocol to the african charter on human and peoples rights on the rights of women in africa 2003. ricardo v. abal (1926) nlr 58. salami v. salami (1924) 5 nlr 43. serap v. federal republic of nigeria & universal basic education commission. unreported suit no: ecw/ccj/app/12/07 judgment delivered on the 30th november, 2010. serap v. federal republic of nigeria unreported suit no: ecw/ccj/app/08/08. shehu dalibi v. ahmadu tela [2000] fwlr (pt. 27) 2030. silas, s.t. and idachaba, e.a. “disinheritance and women development in igboland, eastern nigeria: a theological-ethical study” (2020) (3)5 journal of african studies and sustainable development 15-26. https://doi.org/10.17561/tahrj.v22.7972 david tarh-akong eyongndi, faith nwayemogho opara, olayiwola owoade oladele, david andrew agbu, mary-ann onoshioke ajayi the age of human rights journal, 22 (june 2024), e7972 issn: 2340-9592 doi: 10.17561/tahrj.v22.7972 27 taiwo v. lawani (1961) all nlr 733. the holy bible, numbers 27:1-8. (king james version). ugboma v. ibeneme (1967) f.n.l.r. 251. ukeje v. ukeje [2014] 11 nwlr (pt. 1418) 384. unigwe, c. (2021). “on disinheriting igbo daughters” https://dailytrust.com/ondisinheriting-igbo-daughters/ accessed 3 april 2023. united nations declaration on the elimination of all forms of racial discrimination 1963. uzoukwu v. ezeonu ii [1991] 6 nwlr (pt. 200) 798. wigwe, c.c. (2011). jurisprudence and legal theory, (readwide publishers, accra. yunusa v. adesubokan (1971) nnlr 77. received: 23rd september 2023 accepted: 15th april 2024 https://doi.org/10.17561/tahrj.v22.7972 https://dailytrust.com/on-disinheriting-igbo-daughters/ https://dailytrust.com/on-disinheriting-igbo-daughters/ realising female inheritance rights in south eastern nigeria: the imperativeness of going beyond leg abstract 1. introduction 2. the igbo customary law system of inheritance examined 2.1 customary exceptions to the general rule of inheritance in igboland and others 3. the nuances of the right of freedom from discrimination under nigerian law 4. explicating the scn decision in ukeje v. ukeje 5. reconciling ukeje v. ukeje with the igbo volksgeist through extra-legal mechanisms 6. conclusion 7. recommendations references racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 1 racism in the digital age: the impact of social media algorithms on public discourse ángeles solanes corella* nacho hernández moreno** abstract: this paper explores the intersection of social media and racism, focusing on how algorithms and their biases perpetuate racial inequalities in the digital public sphere. by examining the evolution of the public sphere, the role of algorithms, and the spread of racist narratives, the study highlights the ethical implications for democracy and digital governance. the findings underscore the need for regulatory interventions to mitigate algorithmic bias and ensure fair public discourse, promoting a more inclusive and equitable digital environment. keywords: algorithmic bias, social media, racism, public discourse, digital ethics. summary: 1. introduction. 2. the evolution of the public sphere in the digital age. 3. social media: seemingly public and neutral places under the control of private interests. 4. racism in the age of algorithm governance. 4.1. from biological racism to culturalism. 4.2. bias in the machine: how can algorithms be racist? 4.3. the role of social media in spreading and normalizing racist narratives. 5. conclusions. 1. introduction the intersection of social media1 and racism is a critical area of study, particularly in understanding how algorithmic bias perpetuates racial inequalities in the digital public sphere. terms like “algorithm” and “artificial intelligence” (ai) have become commonplace in everyday language; however, their impact on individuals and society is not yet addressed as a priority in the public or political debate. although seemingly neutral, algorithms are designed to achieve a specific outcome through a series of calculable steps and formalized instructions. they have also become narrative devices in the media, used to describe the * professor of philosophy of law and politics at the universitat de valència. member of the human rights institute of the universitat de valència. e-mail: angeles.solanes@uv.es. orcid: https://orcid.org/00000002-4207-6113 ** assistant professor (profesor ayudante doctor) of philosophy of law and politics at the universitat de valència. member of the human rights institute of the universitat de valència. e-mail: nacho.hernandez@ uv.es. orcid: https://orcid.org/0000-0002-6686-662x 1 the term social media has been preferred over social networking sites due to its broader scope, which encompasses the latter (aichner et al. 2021, p. 215; carr & hayes, 2015, p. 49). social networking sites are understood as a subset of social media primarily focused on interaction and relationship-building (e.g., x, facebook, linkedin), whereas social media is more generally associated with platforms that promote content creation (e.g., youtube, tiktok) (solanes & hernández, 2024, p. 109). however, given that social media functions as an umbrella term encompassing both kinds of platforms and that the issue explored in this paper relates to each of them, we consider it the most appropriate expression to capture the digital context addressed in this study. this article was written as part of the r&d&i project pid2023-147896ob-i00, «derechos humanos e inmigración: repensar la integración en tiempos oscuros», funded by the ministry of science, innovation and universities http://10.17561/tahrj.v25.9603 mailto:angeles.solanes@uv.es https://orcid.org/0000-0002-4207-6113 https://orcid.org/0000-0002-4207-6113 mailto:nacho.hernandez@uv.es mailto:nacho.hernandez@uv.es https://orcid.org/0000-0002-6686-662x racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 2 magical processes behind friend suggestions on social networks or product and service recommendations tailored to users’ preferences in cyberspace (cabrera, 2021). regarding artificial intelligence, the absence of a universally accepted definition allows floridi to frame ai more as agency than intelligence. according to this author, the issue is not whether a machine is intelligent or capable of thinking, but rather that its behavior may appear to be the product of human decision-making (floridi, 2024, p. 72). as such, both a procedure (related to algorithms) and a behavior or agency (concerning ai) may seem harmless at first glance. however, their practical application conceals potential biases that can foster discrimination and racism —both directly within the digital realm and indirectly in physical spaces. this study focuses precisely on this issue: investigating how algorithms in social media contribute to the spread and normalization of racist narratives. for the purposes of this study, public discourse is understood as the exchange of ideas and information within the public sphere, where individuals and groups discuss matters of common interest (habermas, 1986). to effectively address societal issues, it must be governed by the principles of orderly argument, mutual respect, and sincerity (hannon, 2023, p. 337). the central research question guiding this work is: how do algorithms on social media contribute to the spread and normalization of racist narratives? the working hypothesis is that algorithmic bias on these platforms amplifies racist content, thereby shaping public discourse in ways that reinforce racial inequalities. the relevance of this research lies in the growing influence of social media on public opinion and the increasing concern over algorithmic bias. as digital platforms become central to political, social, and cultural interactions, it is crucial to understand how they shape public discourse. this study addresses the ethical implications of algorithmic bias, emphasizing the urgent need for regulatory interventions to ensure fair and inclusive public dialogue. by exploring the intersection of technology and racism, the research contributes to ongoing debates on digital ethics, democracy, and social justice. rather than addressing this issue through a more comprehensive or detailed regulation of the circumstances that enable the rise of racism in cyberspace, platforms invoke freedom of speech as a shield to avoid monitoring the content hosted within their spaces. in doing so, they also evade their responsibility as sovereign entities of a virtual world where discrimination, as well as incitement to violence, hatred, and hostility against racialized otherness, has found refuge. the paper is structured to provide a comprehensive analysis of the interplay between social media, algorithmic bias, and racism. it begins by examining how the internet and social media have transformed the public sphere, focusing on the role of digital platforms in shaping public discourse. this is followed by an analysis of the business models of social media, emphasizing their profit-driven nature and the consequences for public dialogue. the paper then traces the evolution of racism, moving from biological determinism to culturalism, and explores how it is perpetuated through algorithms. furthermore, it discusses various types of algorithmic bias and their impact on racial inequalities, analyzing how social media platforms facilitate the spread and normalization of racist http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 3 content. the conclusion summarizes the findings, addresses the broader implications for democracy, digital ethics, and policymaking, and offers recommendations for mitigating algorithmic bias to foster fair and inclusive public discourse. 2. the evolution of the public sphere in the digital age the internet has revolutionized our lives and is now an essential tool in most of our daily activities, whether related to work, study, leisure, consumption, or interaction with other individuals and institutions. social media has followed a similar trajectory, becoming fundamental to understanding the current political, social, and cultural landscape of our societies. this phenomenon exemplifies how a tool originating in cyberspace can exert a significant impact on the physical and tangible world, influencing electoral outcomes while also having the potential to incite, promote, or foster hostility, violence, discrimination, or hatred against specific groups. consequently, social media plays a crucial role in analyzing and investigating public discourse and the rise, normalization, and legitimization of new forms of contemporary racism. such is their relevance that their emergence and current ubiquity have contributed to what habermas (2023) describes as the “platformization” of the public sphere—the metaphorical space in which public opinion is shaped, a key driver of media and political agendas. this concept refers to the social space where individuals engage in rational discourse, free from state interference, to deliberate on matters of common concern (habermas, 1989, p. 136)2. while in its traditional sense it relied on print media, radio, and television to shape public discourse, cyberspace now serves as an alternative domain where digital platforms mediate political and social interactions. however, this shift has brought challenges that raise concerns about the integrity of democratic deliberation in the digital age. historically, the public sphere existed in physical spaces like salons and coffeehouses, where structured debates shaped collective consciousness. with capitalism’s expansion, the bourgeoisie recognized the political implications of private commercial 2 habermas’s theory of public discourse centers on the idea that democratic legitimacy arises from rationalcritical debate among citizens in the public sphere. however, in his evolutionary analysis of the public sphere, the german philosopher also warns that the emancipatory potential of this space has been undermined over time (habermas, 1986). what once functioned as a counterpower has gradually been colonized by private interests, such as the media, political marketing, and economic actors, which transform public discourse into a mechanism for managing consent rather than fostering genuine democratic will-formation. as a result, public opinion is no longer the product of free and rational deliberation among citizens, but is increasingly mediated and shaped by the strategic interests of a minority. this problem is further exacerbated in the digital age. with the advent of the internet and especially social media, the public sphere has become platformized—migrating from physical spaces into virtual environments controlled by large private corporations (habermas, 2023). although these digital platforms present themselves as open arenas for public discourse, they are primarily governed by algorithms and business models designed to maximize engagement and profit. this evolution raises significant concerns about the distortion of deliberative processes, as virality, emotional appeal, and algorithmic curation often displace reasoned debate, further distancing the public sphere from the ideals of communicative rationality. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 4 interests, prompting a counterpublic sphere that used the press to challenge institutions and demand transparency. however, these debates remained limited to educated elites—jurists, doctors, priests, and academics—whose intellectual authority often outweighed social hierarchy (habermas, 1986; 1989). the printing press revolutionized public discourse, spreading information and fostering shared consciousness. whereas newspapers initially challenged power, they gradually became instruments of persuasion and propaganda, prioritizing advertising over objectivity, creating a manipulative publicity that eroded democratic deliberation. habermas (1986) warns that media commercialization fosters an irrational public sphere dominated by strategic messaging rather than genuine public deliberation. public opinion, as a legitimizing force of power—even in authoritarian regimes (arendt, 2006, pp. 56-57)—is shaped by the interaction between individuals, information flows, and media influence (sartori, 1993, pp. 59-60). ideally, public discourse serves as a check on institutional power, fostering a healthy democratic process. however, the public sphere, increasingly dominated by mass communication, has progressively distanced public opinion from genuine deliberation, making it more vulnerable to manipulation (habermas, 1986; 1989). the referred massification is seen in contemporary society and its current public sphere. the internet has introduced new mechanisms for public engagement, providing tools that allow individuals to express opinions and challenge institutional authority in real-time. the digitalization of communication enables viral dissemination of information, granting citizens greater oversight over political and economic actors. however, this same dynamic exposes the public sphere to manipulation by powerful interests, including state and non-state actors who exploit digital platforms for ideological or commercial gain. an effective public sphere must be universally accessible, facilitate the exchange of perspectives, and promote collective deliberation (seeliger & sevignani, 2022, p. 8). although social media and, in particular social media, seemingly provide a virtual space open to anyone who registers and logs in, allowing users a certain degree of freedom to personalize their profiles, interact, and engage with digital tools to participate in shaping public discourse, the reality, as will be examined in the following sections, is far more complex and nuanced. these platforms, which are often perceived as spaces of freedom and empowerment, diverge significantly from this ideal in practice. as we will explore, the fact that social media are designed by private entities driven by economic interests, coupled with a business model reliant on the attention economy and algorithmic mediation, precludes them from functioning as genuinely neutral, public, or free spaces. the impact of digital technologies on the public sphere has been both transformative and destabilizing, as the so-called “engineering of consent” has undermined the autonomous formation of public opinion, as traditional and new media have been successful in “getting people to support ideas and programs” (bernays, 1947, p. 114). manipulative strategies create the illusion of democratic participation while, in reality, reinforcing power asymmetries that benefit private interests (habermas, 1986). this phenomenon is particularly evident in digital environments, where social media platforms mediate political discourse through algorithmic amplification. algorithms are fundamental to the http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 5 functioning of essential services and infrastructures in information societies. while their potential to enhance individual and collective well-being is undeniable, so too are their associated risks, as algorithms are not ethically neutral (floridi, 2024, p. 205). although users may perceive themselves as active participants in shaping public opinion, the dynamics of digital discourse are often dictated by a small number of influential actors or automated bots. the algorithms governing these platforms prioritize engagement metrics over deliberative quality, amplifying content designed to maximize user retention rather than fostering rational debate. the platformization of the public sphere, as described by habermas (2023), marks a fundamental shift from traditional media structures to digital ecosystems characterized by decentralized content production. unlike the press, which historically mediated public discourse through editorial oversight, the internet enables individuals to engage in public communication with minimal barriers to entry. while this democratization of discourse provides opportunities for marginalized voices to be heard, it also raises significant concerns regarding the spread of misinformation and the erosion of journalistic standards. seeliger and sevignani (2022) identify three defining characteristics of the platformized public sphere: digitalization, commodification, and globalization. digitalization facilitates bidirectional communication through networked platforms, while commodification reflects the economic exploitation of user-generated content. the globalization of digital communication further complicates regulatory efforts, as transnational information flows challenge traditional frameworks of political accountability. these factors collectively contribute to the fragmentation of public discourse, making it increasingly difficult to establish a shared deliberative space. the internet’s impact on democracy is thus paradoxical. while it has expanded the reach of public discourse, it has also introduced structural limitations that hinder rational deliberation. the abundance of communicative activity ironically restricts meaningful engagement, as the sheer volume of information undermines the ability to prioritize substantive discussions. this contrasts with traditional media, where editorial oversight provided a degree of coherence in public communication (rodríguez-izquierdo serrano, 2017). the rise of “echo chambers” in digital spaces has further exacerbated ideological polarization, limiting exposure to diverse viewpoints (miller et al., 2021)3. social media algorithms reinforce pre-existing biases (such as confirmation bias, wherein users gravitate towards information that suits their preexisting beliefs) by curating content that aligns with user preferences, reducing the likelihood of cross-cutting dialogue and making individuals more susceptible to misinformation (barberá, 2020; menczer & hills, 2020, p. 59). this segmentation of public discourse undermines the deliberative ideal envisioned by habermas, fostering insular communities rather than inclusive debate. 3 “eco chambers” (or “filter bubbles”) is a widely used term in this context that can be defined as digital environments in which individuals are predominantly exposed to information, opinions, and perspectives that reinforce their preexisting beliefs, due to algorithmic filtering and selective engagement, thereby amplifying ideological polarization and reducing exposure to dissenting views. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 6 ultimately, the public sphere in its digital form reflects both the promises and perils of technological innovation. while the internet has facilitated unprecedented levels of political engagement, it has also subjected public discourse to the influence of private corporations that prioritize profit over democratic deliberation. habermas (1986) warned of the risks posed by commercialized media, arguing that the manipulation of public opinion serves entrenched interests under the guise of public benefit. these concerns remain relevant in the digital age, where algorithmic governance and surveillance-based business models further entrench economic and political power asymmetries. in this context, public opinion is increasingly shaped by users—who may be individuals or automated entities—rather than by citizens in the traditional sense. whereas citizenship is tied to state recognition and the legal framework of nationality, user status is conferred through acceptance of the contractual terms imposed by social media corporations. unlike citizenship, which remains an exclusive legal category, user status is broadly inclusive, requiring only access to an internet-enabled device. paradoxically, this user identity aligns more closely with the universal human rights ideal than traditional citizenship, as digital platforms do not impose restrictions based on nationality. nevertheless, engagement in public discourse is contingent upon participation as a user rather than as a citizen, as only users have access to the digital tools necessary to shape contemporary political narratives. however, social media platforms are not neutral arenas for public debate; they are commercial enterprises designed to maximize engagement and profit. while they may create the illusion of unrestricted freedom, they are fundamentally engineered to influence behavior, fostering prolonged engagement through mechanisms that subtly constrain individual agency. as democratic systems grapple with these challenges, the future of the public sphere will depend on regulatory interventions that promote transparency, accountability, and inclusive participation. the digital public sphere must be restructured to ensure that it remains a space for genuine deliberation rather than a tool for ideological manipulation. achieving this balance will require a concerted effort to reconcile the emancipatory potential of digital technologies with the need for ethical governance and institutional oversight. 3. social media: seemingly public and neutral places under the control of private interests the notion of neutrality in social media is fundamentally misleading. although these platforms are widely marketed as open and accessible spaces where content is generated by users, this apparent neutrality is largely illusory. in practice, not all participants represent genuine individuals, and not every piece of content is the product of voluntary, unmediated expression. rather, social media companies are primarily profit-driven enterprises whose core objective is to maximize user engagement. their platforms are carefully engineered to stimulate continuous interaction, ensuring that every click, view, and share contributes to a business model focused on revenue generation. consequently, user participation is not a spontaneous, neutral act but is instead cultivated within an ecosystem specifically designed to optimize engagement and, by extension, profit. http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 7 beneath the surface of free-to-use services lies a sophisticated business model that capitalizes on massive data collection and targeted advertising. social media harvest extensive amounts of information—ranging from basic demographics to intricate details of browsing behavior and interpersonal interactions. this data is then processed using advanced algorithms, which analyze patterns to deliver highly personalized advertising. for example, facebook’s advertising infrastructure enables marketers to target individuals based on a myriad of factors, including location, age, interests, and past online activity. real-time bidding mechanisms further complicate this landscape; companies compete in digital auctions where the highest bidder secures prime placement in a user’s newsfeed (wang, zhang, & yuan, 2017). such strategies are designed to ensure that advertisements are not only visible but are also tailored to elicit a high degree of user engagement, thereby reinforcing the commercial interests of the platform at the expense of genuine user autonomy. the inherent business model is predicated on the principle of maximizing user engagement, a goal that fuels an endless cycle of data collection and content personalization. the longer an individual remains on a platform, the more behavioral data is captured, enabling further refinement of targeted advertising and content curation. this feedback loop—where extended user interaction leads to even greater personalization—can be understood as a core component of the so-called attention economy. in this paradigm, every second a user spends on a platform is commodified; algorithms are deliberately designed to exploit psychological vulnerabilities and keep users engaged for as long as possible. features such as autoplay, infinite scrolling, and push notifications are not incidental but are central to this strategy. they manipulate cognitive processes by providing intermittent rewards that encourage prolonged, often compulsive, usage patterns, maximizing screen time, which in turn increases ad exposure and revenue generation. social validation mechanisms, such as likes, shares, and comments, further intensify this effect by tapping into innate human desires for approval and social recognition (bhargava & velasquez, 2021, p. 327). the deliberate design of these platforms creates conditions analogous to addiction, though unlike chemical substances, this dependency is engineered through digital interfaces and algorithmic cues. over time, excessive engagement with social media can impair cognitive functions—reducing users’ ability to concentrate, make sound decisions, and engage in meaningful real-world interactions (ophir, nass & wagner, 2009). the removal of natural stopping points, such as the traditional cues that signal the end of a conversation or the closing of a book, further exacerbates these effects. in the context of infinite scrolling and constant content updates, users are deprived of the cognitive breaks necessary to regulate their consumption. this engineered compulsivity not only diminishes individual autonomy but also fosters an environment in which misinformation and low-quality content can thrive. as platforms prioritize what keeps users engaged, sensationalist and emotionally charged content is often amplified at the expense of nuanced, balanced discourse (menczer & hills, 2020). algorithmic amplification thereby not only sustains user attention but also reshapes public discourse by privileging content that aligns with commercial imperatives over factual accuracy or societal benefits (gillespie, 2018, pp. 194-196; aridor et al., 2023, p. 9; metzler & garcia, 2023, p. 736). http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 8 one of the most concerning consequences of such algorithmic curation is the emergence of “filter bubbles” or so-called “echo chambers” previously referred to in the previous section. as users are repeatedly exposed to content that mirrors their pre-existing beliefs and preferences, their exposure to diverse perspectives diminishes dramatically. the platformization of the public sphere leads to a form of ideological insulation where individuals become confined to self-reinforcing loops of information. this phenomenon poses a direct threat to democratic pluralism because it prevents the kind of cross-cutting engagement necessary for a healthy public debate. empirical studies have shown that algorithmic personalization contributes significantly to political polarization and the rapid dissemination of misinformation (cinelli et al., 2021). platforms like facebook, youtube, and tiktok employ reinforcement learning techniques that refine content recommendations based on previous user interactions. consequently, as users increasingly engage with similar types of content, algorithms become adept at predicting and reinforcing these patterns, thereby narrowing the scope of available discourse and impeding opportunities for meaningful deliberation. moreover, the extensive reliance on algorithmic curation transforms the internet’s vast repository of knowledge into a mechanism of intellectual regression. this phenomenon has been aptly described as “mass self-communication,” a condition in which the overwhelming volume of personalized content prevents meaningful engagement with diverse perspectives. rather than fostering enriched dialogue, the internet instead becomes a tool for reinforcing narrow, self-selected narratives—a state that some scholars have likened to “electronic autism” (gonzálvez, 2011, p. 135). in such an environment, the foundational pillars of democratic civic engagement—public debate, shared social experiences, and exposure to differing viewpoints—are systematically weakened. consequently, the collective construction of social reality is undermined, with profound implications for both individual autonomy and societal cohesion. indeed, research indicates that users with more insular social media networks—those with fewer shared experiences and limited exposure to alternative perspectives—are more likely to respond aggressively to challenges that contextualize news or present opposing viewpoints (kim, 2020, p. 524). as burke (2023) observes, maintaining an open mind within a closed system is inherently difficult, and questioning dominant structures becomes nearly impossible in the absence of alternatives. he highlights the role of ignorance in perpetuating ideological isolation and underscores the necessity of engaging with diverse perspectives to foster critical reflection. this is particularly relevant in the context of social media, where algorithmically curated content reinforces ideological echo chambers. within these digital enclaves, individuals retreat behind a veil of ignorance—though not in the rawlsian sense, which seeks to free individuals from personal biases to establish a fair and impartial social contract—but rather as a mechanism of self-imposed intellectual confinement. shielded from dissenting views, these individuals find alternative perspectives increasingly disconcerting and difficult to confront over time. adding to the complexity is the concentration of control over online speech in the hands of a few dominant platforms. the centralization of information dissemination in these digital spaces raises profound concerns regarding the moderation and amplification of http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 9 voices. content moderation practices, which determine which voices are heard and which are silenced, play a crucial role in shaping public discourse. just and latzer (2016) argue that algorithms are not merely passive tools but active agents in constructing individual realities and shaping the broader social order. the personalization inherent in these algorithms fosters an extreme form of individualism, generating social fragmentation by reducing the occurrence of shared experiences that are vital for social cohesion. therefore, individuals find themselves increasingly subject to the dictates of algorithmic control, resulting in a loss of both privacy and freedom (just & latzer, 2016, 254–255). beneath the facade of neutrality lies the illusion of free will. the pervasiveness and proactivity of algorithms, combined with users’ limited understanding of their inner workings, weaken individual autonomy (floridi, 2024). while social media platforms present themselves as neutral facilitators of communication and information exchange— implying that individuals bear full responsibility for their actions, interactions, and digital behavior—they simultaneously construct a curated perception of self-determination. this impression is reinforced through personalized feeds, customizable avatars, pseudonyms, and other filtering mechanisms. however, such customization does not reflect genuine user control but is ultimately dictated by commercial imperatives that shape the design and priorities of the digital landscape. research on digital platform governance highlights the phenomenon of algorithmic nudging, whereby subtle design choices steer user behavior toward outcomes that serve platform interests (susser, roessler, & nissenbaum, 2019). even when platforms provide alternatives such as more transparent or chronologically ordered feeds, these options are frequently deprioritized or made less accessible, thereby constraining the possibility of authentic user agency (bucher, 2018, pp. 149-150; narayanan, 2023, pp. 40-41). this opacity in algorithmic decision-making not only diminishes digital self-governance but also raises significant ethical concerns regarding the extent to which individuals can exercise informed control over their online interactions. the design of these algorithms is inherently biased. rather than being neutral conduits for information, they are imbued with the commercial objectives of the platforms that deploy them. for instance, tiktok’s “black box” algorithms, which remain largely opaque to users, are designed to curate content in a manner that subtly shapes perceptions and reinforces specific worldviews (metzler & garcia, 2023, p. 742). moreover, the concentration of power in a handful of tech giants exacerbates concerns about the centralization of digital discourse. when content moderation policies are determined by a small number of corporate entities, the resulting control over what information is disseminated or suppressed can have far-reaching implications for democratic participation. the selective amplification of certain voices—often those that conform to profitable or politically expedient narratives—further underscores the need for robust regulatory oversight to safeguard the democratic integrity of digital public spheres4. 4 article 34 of the digital services act requires very large online platforms and very large online search engines to “identify, analyse and assess any systemic risks in the union stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services.” in fulfilling this obligation, they must consider, for example, how the design of their recommender systems and any other relevant algorithmic systems may contribute to or influence such systemic risks. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 10 in this context, it is unsurprising that racism is on the rise as a consequence of social media emerging as a crucial instrument within the contemporary, platformized public sphere. algorithms dictate what users see and interact with, doing so in a manner that, as previously mentioned, maximizes user engagement with the ultimate goal of deriving economic profit from their attention. to achieve this, users are exposed to sensationalist content designed to elicit strong reactions and encourage prolonged platform usage. populist and extremist views are particularly effective in capturing attention and serve as powerful tools for user retention. the more individuals are exposed to such perspectives, the longer they are likely to remain engaged. moreover, if these reductionist, essentialist, and manipulative narratives resonate with users’ preexisting beliefs, they will reinforce stereotypes or myths, which, through mere repetition, may come to be perceived as true. echo chambers function as resonance spaces that prevent exposure to alternative viewpoints. extremist discourse, including racist rhetoric, which in traditional media is more susceptible to censorship due to editorial and regulatory filters, faces far fewer obstacles to dissemination on social media. racism finds fertile ground in these platforms, bolstered by an interpretation of freedom of expression as an (almost) absolute right within the u.s. legal framework (solanes & hernández, 2024, p. 158), where the headquarters of the major social media corporations are located. this legal context enables racism to thrive, as social media platforms provide an ideal mechanism for its mass dissemination, with algorithms acting as facilitators of its propagation. racism has not been eradicated; it remains present and is increasingly sustained and amplified by social media. 4. racism in the age of algorithm governance 4.1. from biological racism to culturalism racism has evolved into a complex and multi-faceted social phenomenon deeply ingrained in historical, political, and cultural structures. historically, racism was rooted in biological determinism, a pseudo-scientific belief that human races were hierarchically structured based on physical attributes. over time, however, this form of racism has given way to a more insidious manifestation—cultural racism—where racial distinctions are increasingly framed in terms of cultural incompatibility rather than biological inferiority. this shift is not merely a change in terminology but reflects a broader transformation in the mechanisms of exclusion, where ideas of race continue to shape social hierarchies, albeit under different justifications. racism can be understood as a system of domination and subordination between groups, rooted in the racialization of differences. this system operates across interpersonal, institutional, and cultural dimensions, manifesting through various forms of invisibilization, stigmatization, discrimination, exclusion, exploitation, aggression, and dispossession (aguilar idáñez & buraschi, 2016, p. 34). in their conceptual framework, these same authors (2019, p. 157) highlight two fundamental aspects of racism: first, its nature as a structured system of oppression rooted in asymmetrical power relations and a presumption of superiority; second, the process by which differences—whether physical, cultural, or http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 11 social—are racialized and perceived as intrinsic and immutable. this perspective aligns with wistrich’s (1999, p. 2) view of racism as a form of heterophobia—a hostility toward the “other” that seeks to convert real or imagined differences into fixed, hereditary, and eternal attributes. these constructed distinctions serve to legitimize the marginalization of those deemed foreign, inferior, or primitive. crucially, such social categorizations gain power when they are naturalized, appearing not as social constructs but as immutable realities. nonetheless, while race is not a natural concept nor a biological reality—and is scientifically debunked, morally reprehensible, socially unjust, and dangerous—it is not a spontaneous idea emerging from human perception but a historical, cultural, social, and ideological construct used to establish differences between groups (aguilar idáñez & buraschi, 2019). according to thomas’s theorem, simply believing in the existence of this construct makes the consequences of such belief tangible. while races do not exist, racists do—individuals who believe in races that can be biologically defined (whether by phenotype or genotype), but also those who believe in their own superiority over others, even defending the rights of the “inferior race,” or those who perceive multiple equal races. racism was once defined by its biological determinism and its inherently unequal nature (blum, 2002, p. 4), and while the first characteristic may now be largely overcome, racism has not disappeared; it has evolved, now presenting itself with a moralizing democratic face (aguilar idáñez & buraschi, 2019, p. 160). whether in its classical or contemporary form, the core of racism remains the same: it asserts the dominant group’s right to lead, control, subjugate, and exploit others (wistrich, 1999, p. 2). to function as a system of oppression, racism requires social indifference, selective empathy, and the rejection of others, including the forcibly displaced (aguilar idáñez & buraschi, 2019, p. 165). racism has adapted by moving away from its biological foundations and instead creating new categories and hierarchies that align with changing social structures and power dynamics, ensuring its persistence in contemporary society. such adaptation to contemporary societies has created new forms of hierarchical classification that involve domination, subordination, and racialization of group differences that manifest in practices such as exclusion, criminalization, violence, expulsion, segregation, discrimination, and exploitation. these practices are justified within democratic frameworks, often invoking security and freedom as key principles. the pursuit of these two values drives the hierarchical categorization of groups, resulting in discriminatory treatment of the oppressed in favor of the dominant social group. this, in turn, uses the defense of its freedom and security to justify the establishment of a social and institutional structure that maintains the status quo of privilege, which is viewed as a fundamental right tied to moral superiority. what matters in this “democratic racism” is not the truth of the discourse, but its capacity to effectively manage power relations (aguilar idáñez & buraschi, 2019, p. 164). ethnocentrism plays a key role in this new form of racism, where culture becomes the central element in distancing between groups and enables the establishment of a publicly http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 12 acceptable social hierarchy based on the idea of morally superior cultures. ethnocentrism, defined by bizumic and duckitt (2012) as a construct emphasizing the centrality and importance of the in-group, contributes to this perspective. cultural supremacy, or the belief that one’s culture is superior to others, is rooted in ethnocentrism but is further fueled by racist ideologies. authors such as bratt (2022, p. 207) argue that modern european racism manifests through the belief in the superiority of european culture, and the insistence on preserving the supposed purity of one’s culture clearly reflects a racist perspective. in fact, banton (1996) noted that opposition to immigration in european states during the previous three decades was more related to cultural differences than to supposed biological distinctions. as well as ethnocentrism, xenophobia and identitarianism contribute to a racist climate by emphasizing cultural distinctiveness, which fuels exclusionary practices, reinforces subordination, and deepens the racialization of differences. as a result, contemporary racism gains greater acceptance than its more overt, traditional forms. identitarianism has become a significant force advocating for the rejection of the “other,” particularly migrants and refugees. this ideology has gained traction in many european states, bolstered by the rise of political parties that propagate exclusionary policies. the central tenet of identitarianism is the assertion of a homogeneous racial, cultural, religious, and linguistic identity that must be preserved at all costs. however, such an identity is a myth (hernández, 2022, p. 42). identity, as balibar (2005) suggests, is inherently ambiguous and cannot be reduced to static, immutable attributes. moreover, the claim to find fixed and absolute identity cores, entirely self-contained and unchanging, defined by stable and consistent characteristics that shape entities as immutable is erroneous (de lucas, 2003). nonetheless, as the thomas theorem posits, if people believe in the reality of racial or cultural purity, the consequences of such beliefs become real, manifesting in policies of exclusion, discrimination, and violence against migrants and racialized groups. xenophobia is commonly understood as the fear or aversion toward foreigners. while this phenomenon is often described as a natural human response, research challenges this assumption, arguing that xenophobia is a social construct shaped by hierarchical identity frameworks. thus, it is erroneous to consider that xenophobic rejection is inherent to human nature. many cultures foster social harmony rather than the creation of hierarchies, and difference is not always seen as a threat. furthermore, not all identities are defined by exclusion or by what they are not. the idea that xenophobia is a natural and inevitable response is therefore a myth, based on a particular perspective that frames identities in terms of hierarchical organization. saito (2021) argues that this view serves as a useful tool for those in power: while racism is officially rejected in theory, discriminatory measures based on a person’s foreignness—rather than their racial or ethnic identity—are met with greater acceptance. this facilitates the implementation of exclusionary policies under the guise of national security or economic stability, even when they disproportionately target racialized groups. racism and xenophobia intersect through their shared construction of the “other” as a threat. the difference between the two lies in their justifications: whereas xenophobia is centered on perceived foreignness, racism is supported by a belief in the http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 13 inherent inferiority of the racialized other (banton, 1996; sundstrom & kim, 2014, p. 35). consequently, racism results in systemic oppression, including discrimination, exploitation, and social exclusion. xenophobic attitudes often serve as a gateway to racist policies, as they create an environment where discrimination is justified based on perceived cultural incompatibility rather than explicit racial inferiority. the rejection of migrants and racialized groups is justified through a modern form of racism that has moved beyond pseudo-biological justifications to embrace cultural differentiation. this shift reflects a broader trend where racism is embedded within discourses of security, national identity, and social cohesion. in multicultural societies, perceived cultural threats exacerbate tensions, leading dominant groups to reinforce exclusionary practices to protect their purportedly superior cultural identity. this results in the stigmatization of migrants and ethnic minorities, who are often associated with danger and criminality (solanes, 2018, p. 60). wieviorka (1994, p. 42) explains how racism operates through two intertwined logics: inequality and difference. by reducing racism to social inequality (e.g., emphasizing only economic or class disparities) its distinct racial dimension is obscured, and it is treated as merely one aspect of broader social issues. also, by framing racism only as cultural differentiation (e.g., seeing it as just a matter of cultural diversity) its structural effects are overlooked, reducing it to a benign difference in identity. what the author suggests is that racism emerges when these two logics—inequality and difference—are combined. specifically, racism unifies these elements by assigning difference (e.g., cultural or ethnic distinctiveness) to a vulnerable minority group, which is then placed in a subordinate position, making it easier to justify discrimination and exclusion. other characteristics of contemporary racism noted by aguilar idáñez and buraschi (2019, pp. 161-162) are its own denial, its reduction to politically correct stances, color blindness or the lack of consideration of race’s influence on power relations, reversed racism by minorities, national identity, binary polarization as a radical difference between groups, the victimization of the dominant group, or the blaming of the victim. the denial of racism, coupled with the reconfiguration of racist ideologies into seemingly democratic discourses, allows exclusionary practices to persist under the guise of cultural protectionism. furthermore, in addition to the traditional vehicles that have historically fostered racism—whether in its original or culturalist form—such as the family, society, the state, or mass media, the internet and social media have now joined this dynamic. thanks to their unique characteristics, they have enabled the dissemination of ideas at a much greater speed and with a broader influence than these traditional instruments. racism is on the rise. 4.2. bias in the machine: how can algorithms be racist? how can seemingly neutral elements, such as algorithms or artificial intelligence, contribute to the rise of racist narratives in public discourse? the business model under study, as well as the role of these tools in monetizing users’ attention and time on social media platforms, is closely related to this issue. this section will examine their specific http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 14 impact on the perpetuation of racism in society, offering examples of various types of biases present in algorithmic and ai systems that contribute to this problem. algorithms, which are often perceived as neutral, are, in fact, not neutral and can inadvertently reflect and reinforce societal biases. as floridi (2024, p. 226) points out, characteristics such as gender, religion, or race cannot simply be removed from training data to prevent both direct and indirect discrimination. this is because seemingly neutral variables, such as postal codes, can serve as proxies for inferring these characteristics, including race. biases can emerge at various stages of data processing, from data collection to decision-making, and can result from factors such as historical human biases or incomplete or unrepresentative data used to train the algorithm (lee, resnick, & barton, 2019). this may result in unintentional discrimination, one that can be more difficult to identify and address (barocas & selbst, 2016, p. 674). mehrabi et al. (2021) identify three primary sources of bias: data-driven, algorithmdriven, and user-driven bias, all of which may contribute to the reproduction of racial inequalities on digital platforms. the first category refers to biases embedded in the data used by machine learning training algorithms, which may result in skewed algorithmic outcomes. the second involves the introduction of bias through the algorithm itself, particularly as it modulates user behavior. the third encompasses biases inherent to users, which may be reflected in the information they generate and which is subsequently used to train machine learning models (mehrabi et al., 2021, pp. 4, 7–8). in the following paragraphs, the framework proposed by mehrabi et al. (2021) will be connected with the typology developed by silva and kenney (2018), such that the specific biases identified by the latter are grouped within the three general categories delineated by the former. accordingly, among the data-driven biases identified by silva and kenney (2018) are training data bias and algorithmic focus bias. within the category of algorithm-driven bias, we find algorithmic processing bias. finally, the user-driven biases include consumer bias and feedback loop bias. silva and kenney (2018) also describe other forms of bias—namely transfer context bias, interpretation bias, nontransparency of outcomes bias, and automation bias—which, however, do not neatly fit into any of the aforementioned categories. these forms of bias typically arise from user or individual action after the algorithm has produced an output, but they are not necessarily incorporated into the data used to train machine learning models. each of these will be discussed in the following sections, as they all play a role in reinforcing racial inequalities on digital platforms, demonstrating how algorithms often perpetuate discrimination rather than mitigate it. training data bias occurs when the datasets used to train machine learning algorithms are filled with historical discrimination. for instance, if a social media algorithm is trained on data that overrepresents white users while underrepresenting racial minorities, it may result in the disproportionate amplification of voices from the former group. the absence of racialized people at various stages of programming and designing algorithms leads to racist outcomes and studies suggest that diversity decreases the likelihood of bias (garcia, 2016, p. 114). studies have demonstrated that image recognition software http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 15 often misidentifies racial and ethnic minorities due to biased training datasets (perkowitz, 2021), and in the social media context, this can manifest as the prioritization of content from white users, overshadowing racial minorities and diminishing discussions on racism. another form of bias, algorithmic focus bias, arises when an algorithm places greater emphasis on certain types of content while sidelining others. social media platforms, designed to maximize user engagement, tend to favor polarizing but nonconfrontational content. this can suppress important conversations about racial injustice, particularly as platforms are concerned with avoiding backlash or the withdrawal of advertisers. for instance, reports have shown that meta’s content moderation algorithms have disproportionately flagged posts addressing racism and suspended racialized users more often by that system (lee et al., 2024). algorithmic processing bias refers to the way in which algorithms weigh variables to make decisions. if a social media algorithm heavily prioritizes “user engagement,” it may give precedence to posts that resonate with the majority demographic or create eco chambers than increase the racial segregation of networks, operating as a sort of glass ceiling for minorities (stoica et al., 2018; 2020). this can lead to the deprioritization of content that challenges white-centric perspectives on race, effectively sidelining discussions on systemic racism and further entrenching existing biases. transfer context bias arises when algorithmic outcomes are applied in a different context from the one originally intended, potentially leading to biased or discriminatory decisions. for instance, the use of credit scores in employee hiring processes is problematic because it assumes that a poor credit score correlates with poor job performance, despite the lack of conclusive evidence supporting such an association. this bias disproportionately affects groups that have historically faced restricted access to credit, thereby perpetuating structural inequalities. within the context of social media, this type of bias can influence content moderation and the visibility of posts. for example, if an automated content review system classifies certain words or images associated with ethnic minorities as “sensitive” or “controversial” based on their usage in unrelated contexts, this may lead to the unjustified censorship of content from these communities. consequently, transfer context bias can contribute to systemic racism by limiting the representation of specific groups and reinforcing dominant narratives. similarly, interpretation bias occurs when users’ perceptions or actions introduce bias into the algorithmic process, that is, when they subjectively interpret ambiguous algorithmic outputs based on their own internalized biases. even if an algorithm processes content impartially, user interpretation can influence its outcomes. within the context of social media, this bias can contribute to racial discrimination in various ways. for instance, content moderation relies on automated flagging systems, but human moderators make final decisions. due to interpretation bias, content created by racial minorities may be classified as “offensive” or “harmful” more frequently than similar content from other groups. also, algorithmic filtering can reduce the visibility of minority voices if prejudiced users mass-report or downvote their content, leading platforms to misinterpret this activity as a quality issue, ultimately suppressing diverse perspectives. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 16 non-transparency of outcomes bias emerges when the rationale behind algorithmic decisions is opaque, even to the developers of such systems. due to the complexity of machine learning and big data models, developers are often unable to explain why an algorithm arrived at a particular decision. this bias is particularly problematic in social media, where algorithms determine which content is displayed to users. if a system automatically decides that certain profiles or posts should have limited reach without providing an explanation, content creators from marginalized communities may experience reduced visibility without any means of appeal or adjustment. furthermore, as many companies protect their algorithmic structures for commercial reasons, the lack of transparency prevents the detection and rectification of racial biases in content moderation and advertising. automation bias is another critical form, wherein users assume that algorithmic decisions are neutral and objective. users may believe that newsfeeds curated by algorithms offer an unbiased representation of reality. however, these algorithms often prioritize mainstream narratives shaped by historically dominant racial groups, thus reinforcing whitewashed depictions of history and current events (noble, 2018, p. 71). this assumption of neutrality, when in fact the algorithmic process is shaped by underlying biases, can contribute to the marginalization of minority perspectives. consumer bias is another dimension of algorithmic bias, emerging from the platform’s adaptation to user preferences. if users engage more with content that downplays racism, the algorithm will continue to present them with similar material, creating an echo chamber effect. this insular environment makes it harder for users to encounter perspectives that challenge their racial biases. a prominent example of this is youtube’s recommendation algorithm, which has faced criticism for steering users toward far-right and racist content due to its reliance on engagement-driven prioritization (russell, 2023). finally, feedback loop bias occurs when biased content is continuously engaged with, causing algorithms to amplify it. for instance, if white users are more likely to interact with “race-neutral” content, the algorithm will continue to prioritize these narratives, thereby reducing the visibility of discussions on systemic racism. this feedback loop strengthens the dominant racial narrative while marginalizing voices that challenge or critique racial inequality. once the different types of algorithmic biases have been analyzed according to the categorization of both mehrabi et al. (2021) and silva and kenney (2018), we proceed to highlight specific research on how these have reproduced and intensified racist stereotypes. one of the most prominent studies on the issue is that of noble, who categorizes these tools as “algorithms of oppression,” emphasizing their role in sustaining and even exacerbating biases that marginalized groups already experience in the physical world. she argues that this issue will become one of the most pressing human rights challenges in the future, as algorithmic decision-making strengthens oppressive social structures and introduces new forms of racial profiling. in her seminal work, noble (2018, pp. 6-24) provides striking examples of google’s search engine displaying racist and misogynistic results. for instance, its image recognition system automatically labeled black individuals as “apes” or “animals” and associated michelle obama with similar http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 17 terms. additionally, google searches for the derogatory term “nigger house” led users to the white house, while queries for “beautiful” primarily returned images of white women. similarly, autocomplete suggestions for “women cannot” and “women should” reinforced gender stereotypes, including “women cannot drive”, “women should not vote”, and even “women should be slaves”. google and other tech giants dismiss these issues, claiming they are not responsible for their algorithms’ decisions and that such incidents are resolved quickly (noble, 2018, p. 159). google, with its search engine, chrome browser, youtube, and gmail, is often perceived as synonymous with the internet. this perception normalizes biased results, as users assume they are objective and reflective of popular opinion (noble, 2018, p. 34). these platforms, due to their dominance, shape online reality. ultimately, noble contends that search results reflect corporate interests and advertiser priorities, rather than an unbiased truth. harmful stereotypes persist because they are widely circulated, normalized, and profitable, highlighting the urgent need for accountability in aidriven platforms. these issues, far from being addressed, may be perpetuated by the recent policies of major companies behind social media platforms to reduce content moderation in an effort to eliminate racist discourse. x, with the arrival of elon musk, as well as meta, microsoft, and google, have downsized their teams dedicated to consumer and user wellbeing, including those focused on racial equity (noble et al., 2025, p. 271). 4.3. the role of social media in spreading and normalizing racist narratives social networks have become omnipresent channels of communication and dissemination of all kinds of content. their users have ceased to be passive recipients of information, as was traditionally the case with conventional media, to become true protagonists—or so they believe, since, as we have seen, algorithms limit free will and the existence of bots reduces their prominence—by having the ability to create and share content consumed and noticed by hundreds, thousands, or even millions of people across any given territory. the traits inherent to social media—mainly, anonymity, the potential for a massive audience, and the immediacy of interactions—among other factors, create an environment particularly conducive to the spread and normalization of racist narratives. anonymity allows users to express extreme views without fear of direct repercussions, emboldening individuals to articulate racist rhetoric they might otherwise suppress in offline spaces. although, strictly speaking, users may not be entirely anonymous, as they can be traced, what matters is the sense of anonymity, which encourages them to shed the social filters necessary to comply with norms of civility and decorum. furthermore, the promise of reaching vast audiences with a single post incentivizes provocative content, while immediacy fosters impulsive reactions, often without time for reflection or critical engagement. there are no filters, unlike traditional media and their editorial controls. these features intersect with the logic of virality, a cornerstone of the attention economy, where the most controversial and emotionally charged content is algorithmically amplified. as a result, racism—particularly in its culturalist form— flourishes, repackaged as “political incorrectness” or “anti-woke” sentiment to skirt overt accusations of bigotry. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 18 algorithmically amplified discourse further entrenches racist narratives by privileging engagement over accuracy or ethics. social media algorithms, designed to maximize user interaction, push divisive content to the forefront since outrage and controversy generate higher levels of participation. this dynamic not only increases the visibility of racist ideas but also creates a false sense of legitimacy, as frequently encountered content—regardless of its veracity—appears credible by virtue of repetition. consequently, racism becomes normalized in the digital public sphere, subtly shifting societal boundaries of what is considered acceptable speech. the interplay between echo chambers, extremism, and racial discourse compounds this effect. social media algorithms curate personalized feeds based on user behavior, reinforcing pre-existing beliefs and isolating individuals within ideologically homogeneous spaces. these echo chambers facilitate radicalization by constantly exposing users to similar viewpoints, with little to no counterbalance from dissenting perspectives. within such insulated environments, racist ideologies can evolve and harden, as users embolden one another and escalate their rhetoric in a competitive bid for recognition and approval. moreover, the blurred line between freedom of speech and hate speech in digital spaces complicates efforts to curb online racism. while social media platforms often claim to uphold free expression—rooted in the american understanding of freedom of speech as an almost absolute right—their reluctance to impose stringent content moderation policies allows racialized hate speech to masquerade as legitimate political opinion5. in fact, hate 5 the united states supreme court, in its interpretation of the first amendment of the constitution, allows all types of speech, including racist content, as long as these two elements are not met together: that the speech is “directed to inciting or producing imminent lawless action” and the speech is “likely to incite or produce such action.” brandenburg v. ohio, 395 us 444 (1969). this means that, unlike other regions such as europe, racist speech has more freedom to persist, as it is only limited by those two onerous requirements and does not take into account other legal goods that require protection, such as dignity, a key element for authors like waldron (2012). in contrast, the inter-american and european human rights systems have adopted more interventionist approaches with regard to racist hate speech. the inter-american court of human rights, interpreting article 13.5 of the american convention on human rights, has accepted that states may restrict expressions that advocate racial hatred, provided that such limitations are established by law and meet the criteria of necessity and proportionality (e.g., norín catrimán et al. v. chile, concerning speech that reinforced racial stereotypes against mapuche leaders). the special rapporteur on freedom of expression of the inter-american commission stressed that racist discourse sustains structures of exclusion and discrimination, and called for comprehensive responses beyond criminal prosecution—including anti-racist public policies and oversight of digital platforms. the report notes that racist speech should be prohibited when it incites violence or discrimination, but not in cases of unequal or offensive opinions, where “the most appropriate response is the fairness of reasoned argument, which calls for more and better speech, not less” (cidh, 2017, p. 157). similarly, the european court of human rights has ruled that racist hate speech is not protected under article 10 of the european convention and may be excluded entirely from protection under article 17 when it contradicts the convention’s fundamental values (e.g., garaudy v. france). the european union, through instruments such as council framework decision 2008/913/jha, has obliged member states to criminalize the public incitement to violence or hatred on the grounds of race, colour, descent, or national or ethnic origin, and more recently, the digital services act imposes obligations on large platforms to act against the dissemination of illegal hate content. these frameworks reflect a shared view that the freedom of expression cannot be used to undermine the equal dignity of others, especially in racially plural societies. http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 19 speech has significantly increased since elon musk acquired twitter and rebranded it as x (hickey et al., 2024, p. 1135). this permissiveness emboldens culturalist racism, which strategically avoids biologically deterministic language in favor of coded references to cultural incompatibility, national identity, and “threats” to societal values. by eschewing overtly racist terminology, these narratives exploit the ambiguities of moderation policies, enabling racism to persist under the guise of open debate. finally, moderation policies themselves sometimes sanitize or whitewash racist discourse due to, among other reasons, the lack of staff, the language barriers faced by those employed to moderate, as well as the lack of understanding of the cultural context in which these narratives occur (sorabji, 2021, p. 2018; gongane et al., 2023, p. 129). rather than dismantling the underlying ideologies, platforms may simply remove explicit slurs while allowing more subtle, culturally racist narratives to thrive. in doing so, they create the illusion of a “cleaner” online space without addressing the systemic spread of racialized misinformation and bigotry. this superficial approach ultimately reinforces the normalization of racism, allowing it to adapt and flourish within the digital public sphere. with this approach, platforms have chosen to uphold an absolutist conception of freedom of speech, fostering and cultivating what justices holmes and brandeis6 characterized as a marketplace of ideas, a metaphor which philosophically has its roots in the defense of freedom of speech put forth by both milton (1918) and mill (1970): a space where all opinions compete and can be expressed and tolerated to allow truth to emerge. consequently, restricting such freedom through legal means becomes challenging, leaving states as the only actors capable of limiting hate speech within their jurisdictions. however, the transnational nature of social media enables the dissemination of such content without barriers, even in jurisdictions where its expression is prohibited. nevertheless, contrary to the intentions of those thinkers and justices holmes and brandeis—who envisioned that truth would prevail over falsehood through open confrontation—the reality is quite different. the nuances of truth do not fit within the spatial constraints imposed by certain platforms, and algorithms neither evaluate nor possess the capacity to assess truth. what they do recognize, however, is that truth, often less engaging than falsehood, fails to capture the attention of users eager for sensationalist content and of companies seeking to monetize that attention. 5. conclusions the public sphere has undergone drastic changes in recent years, with public opinion increasingly shaped by content disseminated in cyberspace and on social media platforms—essential vehicles for understanding this transformation and the ways in which the media agenda and public discourse are structured today. however, contrary to what the term public sphere might suggest, these are virtual spaces governed by companies that act as sovereign entities, leveraging this new domain for their own benefit. they do so by 6 abrams v. united states, 250 u.s. 616 (1919). http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 20 engaging users, making them believe they are free and that they personalize their experience through customization options (such as names, avatars, colors, and background images). in reality, however, users are guided by the invisible hand of algorithms, designed by these major corporations to monetize every moment of user engagement on the platform. the future of a deliberative public sphere and a healthy democracy will depend on regulatory interventions that promote transparency, accountability, and inclusive participation. as pasquale (2016, p. 506) indicates, regulation “would improve the public sphere, not diminish it”. without proper oversight, these platforms risk becoming tools for ideological manipulation rather than spaces for open discourse. how can users be kept on social media for longer periods, thereby increasing economic profit? by offering content that captures their attention and fosters addiction. what kind of content elicits this response? emotionally charged, sensationalist, and misleading material. where does racism fit into this equation? it is a form of emotional content, rooted in fear and ignorance, that exudes hatred and becomes particularly appealing to certain individuals. however, like the evolution of racism itself, this content can be subtle, allowing it to go unnoticed. continuous exposure to similar content creates echo chambers that hinder calm and rational debate with those who hold different perspectives, reinforcing the perception of absolute truth among users who see only information that confirms their existing beliefs. social media platforms ultimately contribute to the normalization of both covert and overt racist discourse, playing a crucial role in the resurgence of this form of discrimination against racialized others. they may do so deliberately—to generate controversy and increase engagement—or indirectly, without an explicit intent to cause harm. this is where algorithmic biases come into play: internal flaws within algorithmic processes that may perpetuate racism, either because they are trained on biased data or because they are designed by individuals who, consciously or unconsciously, incorporate their own biases. racism, now primarily manifesting in its culturalist form, is experiencing a resurgence in cyberspace, driven by corporate profit motives that shape user interactions within the new public sphere. this sphere appears neutral and open due to its accessibility and the absence of formal entry barriers. however, it conceals the private interests of these corporations, which, from the shadows, orchestrate a public discourse that normalizes and whitewashes racism. ultimately, social media platforms, controlled by major corporations—many of which are based in the united states—advocate for an opportunistic defense of freedom of speech as an almost absolute right. this approach enables them to monetize the user experience by providing sensationalist, extreme, or even overtly racist content, fostering user engagement and prolonging their time on the platform. to counteract these issues, users can combat algorithmic bias on social media by taking several proactive steps. firstly, educating themselves about how algorithms work and recognizing potential biases is crucial. diversifying information sources helps avoid echo chambers, while providing feedback to platforms can highlight and address biased content. adjusting privacy settings to limit data sharing can reduce personal data exploitation, mitigating some biases. supporting ethical tech initiatives and advocating http://10.17561/tahrj.v25.9603 ángeles solanes corella, nacho hernández moreno the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 21 for policies that promote fairness and transparency in artificial intelligence and algorithm design are also important. participating in digital literacy programs enhances understanding of digital platforms and empowers users to make informed decisions. advocating for greater transparency from tech companies about their algorithms can help hold them accountable7. engaging in public discourse about algorithmic bias raises awareness and drives collective action. by joining conversations, writing articles, and participating in community discussions, users can highlight ethical challenges and contribute to broader movements for change. these actions collectively promote a more inclusive and equitable digital environment, ensuring that digital platforms serve as spaces for genuine deliberation and fair public discourse. policy-making should focus on mitigating algorithmic bias by promoting transparency in algorithmic processes and implementing measures to counteract biases in training data. regulatory frameworks should mandate the disclosure of how algorithms operate and the criteria they use to prioritize content. additionally, fostering diversity in the tech industry can help reduce the likelihood of biased outcomes. diverse teams are more likely to identify and address biases that may be overlooked by homogeneous groups. ensuring fair public discourse requires a concerted effort to reconcile the emancipatory potential of digital technologies with the need for ethical governance and institutional oversight. recommendations include the development of ethical guidelines for algorithm design, the establishment of independent bodies to monitor algorithmic decision-making, and the promotion of digital literacy among users. educating users about how algorithms work and the potential biases they may introduce can empower individuals to critically engage with digital content. in conclusion, this study provides a comprehensive analysis of the interplay between social media, algorithmic bias, and racism, offering insights into the ethical and democratic challenges posed by digital technologies. by addressing these issues, work can be made towards a more inclusive and equitable digital environment that upholds the principles of democracy and social justice. the findings underscore the urgent need for regulatory interventions to mitigate algorithmic bias and ensure that digital platforms serve as spaces for genuine deliberation rather than tools for ideological manipulation. this study contributes to the existing critical literature by explicitly linking algorithmic bias to the resurgence of cultural racism in digital environments, highlighting the economic motivations behind content amplification and the structural role of platforms in shaping discriminatory discourse. this work foregrounds the ethical implications of platform governance and its impact on democratic deliberation. it offers an interdisciplinary perspective that bridges media theory, algorithmic accountability, and critical race studies to propose concrete policy and civic responses. 7 in line with this recommendation, articles 14 and 27 of the digital services act require platforms to disclose in their terms and conditions the tools used for content moderation, including algorithmic decisionmaking, as well as to publish the main parameters of their recommender systems. these parameters must be made available to users in a way that allows them to modify the default settings. http://10.17561/tahrj.v25.9603 racism in the digital age: the impact of social media algorithms on public discourse the age of human rights journal, 25 (december 2025), e9603 issn: 2340-9592 doi: 10.17561/tahrj.v25.9603 22 funding this article has been produced as part of the r&d&i project pid2023-147896ob-i00, multihuri, funded by the ministerio de ciencia, innovación y universidades. bibliography aguilar idáñez, m. j. and buraschi, d. 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(1999). demonizing the other: antisemitism, racism and xenophobia. london and new york: routledge. received: 3rd march 2025 accepted: 8th july 2025 http://10.17561/tahrj.v25.9603 http://dx.doi.org/10.1561/1500000049 racism in the digital age: the impact of social media algorithms on public discourse 1. introduction 2. the evolution of the public sphere in the digital age 3. social media: seemingly public and neutral places under the control of private interests 4. racism in the age of algorithm governance 4.1. from biological racism to culturalism 4.2. bias in the machine: how can algorithms be racist? 4.3. the role of social media in spreading and normalizing racist narratives 5. conclusions funding bibliography a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 1 a one health approach to food safety and the right to health in a global governance naiara arriola echaniz1 abstract: the global regulation of food safety remains remarkably limited, despite growing recognition of their transboundary implications. this article examines how a cosmopolitan approach to global governance can strengthen the protection of the right to health by integrating the one health paradigm into food safety regulation. it argues that food safety should not be treated as a merely technical issue, but as a constitutional and human rights concern within a globally interdependent context. through the analysis of selected wto disputes, the article illustrates how tensions between trade obligations and human rights protections reveal deeper normative and institutional gaps in global food governance. keywords: right to health, food safety, cosmopolitanism, one health, esg, sustainable development goals, global governance. summary: 1. introduction. 2. cosmopolitanism and global human rights governance. 3. the one health paradigm: a normative approach to interdependent rights. 4. case study: wto-eu food safety tensions as human rights dilemmas. 5. food safety and esg: toward a rights-based framework. 6. conclusions. 1. introduction in an increasingly interconnected world, the distinction between national and global health risks has become blurred. this is particularly evident in the context of food safety, where the emergence and spread of foodborne illnesses, zoonotic diseases and antimicrobial resistance exemplify contemporary public health challenges that transcend national borders. these developments necessitate legal and policy frameworks that transcend national borders and address health risks comprehensively and integrally. against this backdrop, the one health paradigm has gained traction as a legal and operational approach that recognises the interconnectedness of human health, animal health, and the environment. at the same time, the right to health has evolved from a state-centered entitlement to a global concern that requires coordinated responses beyond domestic policies. as pandemics and food crises have shown, the enjoyment of health rights in one part of the world is contingent upon the existence of robust health and food regulations elsewhere. consequently, the global governance of health and food safety cannot be reduced to an isolated national policy. in fact, the right to health (and food safety) must be understood as a normative enterprise that requires the protection of justice and accountability at a global level. 1 professor of constitutional law and wto law. universidad pontificia comillas-icade. madrid, spain (narriola@comillas.edu). https://doi.org/10.17561/tahrj.v25.9797 mailto:narriola@comillas.edu a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 2 why is the right to health, specifically food safety, not regulated on a global level? this article argues that a cosmopolitan approach to global governance offers a valuable framework to rethink food safety regulation globally, through the lens of the right to health. cosmopolitanism scholars assert that all individuals, regardless of nationality or citizenship, are entitled to equal moral and legal protection. in the field of global health law, this perspective entails regulatory standards reflect shared human interests and interdependent vulnerabilities. in this sense, cosmopolitanism provides a conceptual intersection between the universality of human rights and the systemic logic of one health. the definition of one health that suits this paper is the one proposed by the one health highlevel expert panel. “one health is an integrated, unifying approach that aims to sustainably balance and optimize the health of humans, animals, plants and ecosystems. it recognizes the health of humans, domestic and wild animals, plants and the wider environment (including ecosystems) are closely linked and interdependent” (one health high-level expert panel et al., 2022, p. 4). while the one health paradigm offers an essential integrative framework for addressing the complex interconnections between human, animal, and environmental health, it remains largely embedded in soft law instruments, voluntary cooperation, and institutional declarations. this limits its capacity to impose binding obligations on states or to guarantee accountability in the governance of global health risks. in this context, the right to health, as enshrined in international human rights law notably article 12 of the international covenant on economic, social and cultural rights – provides the normative foundation that could strengthen and consolidate the aspirations of one health. in this sense, the office of the united nations high commissioner for human rights has affirmed that food safety is a fundamental component of the right to adequate food and an essential requirement for realising the right to health. general comment no. 14 of the un committee on economic, social and cultural rights reinforces this interpretation by clarifying that states are obliged to ensure safe food systems and environmental health as part of their human rights commitments. yet despite its growing normative relevance, one health remains embedded in soft law, raising the urgent question of whether it can serve as a vehicle for integrated global governance. the article explores how food safety regulation can be aligned with cosmopolitan and one health principles in practical terms (case study). besides through the integration of environmental, social, and governance frameworks and the sustainable development goals. esg frameworks, although primarily rooted in corporate governance and financial accountability, have increasingly influenced global discussions on food system sustainability and corporate responsibility in ensuring public health and food safety. the sustainable development goals (sdgs), for their part, embody an international consensus around shared objectives that require multi-level governance, long-term vision, and crosssectoral coordination. nonetheless, the proposal is not just a matter of compliance. the case study of wto-eu food safety analyses the tensions as human rights dilemmas and will give us examples of how to (or not to) build a solid policy reform. to ground the theoretical and normative discussion in real-world dynamics, the article presents a case study of selected wto–eu food safety paradigmatic disputes: https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 3 ec – hormones, ec – biotech and ec – seal products. these disputes, along with the recent controversy surrounding pesticide-related trade measures, highlight the legal and political tensions between trade liberalisation and public health protection. each case demonstrates how food safety measures that are presented as human rights or environmental safeguards may conflict with the wto’s rulesbased system, particularly when ethical or precautionary justifications are employed rather than strict scientific consensus. these disputes demonstrate the regulatory and power imbalances at the core of global food governance, offering a valuable perspective through which to evaluate the feasibility of incorporating one health and the right to health into a more comprehensive international legal framework. this article is divided into five sections. following the introduction, section 2 outlines the foundations of cosmopolitanism as a legal and political theory of global justice and its implications for human rights governance, with a particular focus on the right to health and food safety. section 3 explores the concept of one health, examining its scientific origins, institutional development and evolving role in global health policy. section 4 examines the part played by esg frameworks and the sdgs in promoting a rights-based approach to food safety, considering how these standards either contribute to or fall short of a cosmopolitan one health vision. section 5 presents a case study of wto–eu food safety tensions as human rights dilemmas. it examines how the eu positions its regulatory standards and the extent to which these embody the principles of one health and cosmopolitanism. the conclusion reflects on the implications of adopting a one health approach to food safety and the right to health, proposing directions for policy reform. by integrating these perspectives, the article aims to contribute to the development of a more coherent, inclusive and ethically grounded legal framework for global food governance. in the final section, which is dedicated to conclusions, the article argues that global food safety governance must move beyond its current fragmented, trade-centred approach and embrace a more coherent, inclusive, rights-based framework. adopting the one health approach, applying cosmopolitan legal theory and incorporating emerging environmental, social and governance (esg) mechanisms could shift the focus of global governance towards safeguarding food safety as a fundamental human right. the case study of wto–eu disputes illustrates the inadequacy of the current trade regime for safeguarding health and ecological integrity, thereby reinforcing the need for normative and institutional reform. in response, the article sets out key policy recommendations for enshrining the right to health and the one health approach in international law. this would advance a cosmopolitan vision of global food governance that prioritises health, sustainability, and justice. 2. cosmopolitanism and global human rights governance why is the right to health, specifically food safety, not regulated on a global level? historically, health policy has been considered an integral part of national sovereignty, enabling states to exercise considerable autonomy and resist the imposition of binding international obligations (fidler, 2004; lange, 2021). states have traditionally https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 4 viewed health policy as an essential aspect of their autonomy and have resisted any international obligations that might restrict their regulatory discretion. the limited global regulation of the right to health, particularly with regard to food safety, can be traced back to this primacy. in this context, the international legal framework for food safety remains highly fragmented. guidance on this issue is scattered across different institutional frameworks, primarily the codex alimentarius commission (set up by the world health organization and the food and agriculture organization) and the world trade organization’s agreement on the application of sanitary and phytosanitary measures (sps agreement) (fortin, 2023). however, these two instruments operate according to different regulatory principles. the first is based on scientific harmonisation, while the second follows trade facilitation. neither has a unified, rights-based approach that can effectively protect food safety as an integral component of the right to health under international human rights law (arcuri, 2015). consequently, the international legal landscape for food safety is fragmented, with guidance dispersed among institutions such as the codex alimentarius and the wto’s sps agreement. these institutions operate under different logics and lack a unified, rights-based approach (petersmann, 2017). this highlights the challenge of incorporating human rights into global governance structures. cosmopolitanism as a theoretical framework and starting point. the historical precedents of cosmopolitan theory can be traced back to immanuel kant and his proposal for a federation of democratic states to ensure peace and grant individuals the right to world citizenship (dudley and engelhard, 2011). similar ideas can be found in the work of hans kelsen, who viewed international law as superior to national systems and proposed the establishment of an international court to promote peace. however, he was cautious about the formation of a world state (civitas maxima). the biggest obstacle was, and arguably still is, the national sovereignty of states. moreover, this is a political rather than a legal question (kelsen, 2001). cosmopolitanism proposes the existence of supranational institutions over and above national state institutions. it begins with the supposed crisis of the nation state, which has seen its effectiveness and capacity to act in many areas diminish due to globalisation and global interconnectedness (arriola echaniz, 2008; 2017; 2019). cosmopolitanism offers a vision that transcends the nation-state, advocating the global institutionalisation of democracy and human rights. it is rooted in the idea that everyone is a member of a global community and deserves equal moral consideration and protection, regardless of their nationality (moka-mubelo, 2017). this perspective challenges the traditional, state-centric model by emphasising the importance of universal human rights and shared responsibility for protecting them. rather than being opposed to globalisation, cosmopolitanism seeks to humanise it by prioritising social welfare, sustainable development and cultural respect (held, 2010). according to beck (2002; 2005), cosmopolitanism is a democratic project that aims to extend democracy into the transnational sphere. cosmopolitan theory is proposed as an alternative to the nation state. it advocates the institutionalisation of democracy at a global level, focusing on ensuring that the social https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 5 and political rights of all citizens worldwide are respected. it seeks to re-politicise the new power structures that operate beyond the nation state, and is not opposed to globalisation per se, but rather to hegemonic neoliberal globalisation. in fact, it advocates a humanised globalisation that prioritises social welfare, sustainable development, cultural respect, and the protection of human rights (arriola echaniz, 2019). fundamental cosmopolitan principles for law. cosmopolitan principles form the foundation for acknowledging human rights on a global scale. firstly, all human beings are recognised as having the capacity for active action or self-determination. this capacity is accompanied by a responsibility to prevent and repair damage and to respect sustainability at the global level. the second principle recognises the individual responsibility for the consequences of actions derived from recognised rights (arriola echaniz, 2019). fundamental rights must be respected and guaranteed to all people at the global level, regardless of their nationality or state of residence. there has been discussion about a new global law that would supersede international law by operating under the principle of personality rather than territoriality and providing a guiding ethical basis for global social democracy (held, 2016). the belief that they are the exclusive property of western culture must be overcome. cosmopolitan authors argue that applying them helps develop and encourage participation in global civil society. this participation should be encouraged through a non-coercive political decision-making process based on consent, which would overcome the democratic deficit of international organisations (arriola echaniz, 2019). protecting rights on a global scale. the application of the cosmopolitan doctrine as a legal concept is primarily evident in the suggestion that, where national legal systems are dysfunctional, we should rely on new supranational sources of legitimacy. the idea is to move towards transnational legislation that transcends the legal systems of national states (arriola echaniz, 2008). the main path from ‘top-down’ cosmopolitanism is legal and institutional development driven by traditional actors such as states and international organisations. this involves establishing a higher, supranational legal order. the democratic cosmopolitan state is based on cosmopolitan democratic law, which is a form of public law with a democratic character in the transnational space that transcends national interests. the main objective of this law is to guarantee civil liberties and cultural diversity at all levels (local, regional, national and global). this requires the cosmopolitanisation of law. sovereignty would become shared and inclusive, overcoming its territorial and indivisible nature (arriola echaniz, 2008; 2019). in the case of ‘cosmopolitanism from below’, while the principles are similar, institutionalisation would be driven by social mobilisation (arriola echaniz, 2019). boaventura de sousa santos speaks of counter-hegemonic globalisation and subaltern cosmopolitan legality (2005), seeking socio-legal approaches that clarify hegemonic institutional changes, document resistance and affirm the potential for subversion, while imagining legal institutions built ‘from below’. this involves directing analysis towards https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 6 legal alternatives created by grassroots movements (de sousa santos and rodríguez garavito, 2007). richard falk (2002) proposes normative democracy as a unifying force of global civil society that goes beyond elections and includes additional guarantees to ensure that the exercise of power promotes human welfare and ecological sustainability and gives citizens access to decision-making arenas. key cosmopolitan principles include the recognition of every person’s capacity for selfdetermination and the responsibility to prevent harm and promote sustainability globally. these principles underpin the call for a global legal order that guarantees fundamental rights to all, moving beyond the limitations of territoriality. however, critics argue that extending rights beyond the state without robust accountability mechanisms risks creating dependency and undermining existing democratic rights. the debate continues over how to balance respect for state sovereignty with the need for effective global human rights protection (cabrera, 2020). constitutionalizing the globalisation. the notion of ‘humanising’ international organisations and international law itself reflects the idea of protection and protection of rights on a global scale. this process aims to reinforce the protection and respect of individuals’ rights at an international level. human rights are asserted at the supranational level to discipline the international market, for example (arriola echaniz, 2017). from this perspective, globalisation undergoes a process of constitutionalisation, developing institutions for the protection of human rights beyond the state (arriola echaniz, 2017). supranational courts such as the european court of human rights and the interamerican court of human rights exemplify efforts to protect rights beyond national jurisdictions, though enforcement remains uneven (rozpedowski, 2019). a paradigmatic example of supranational protection is the european system, comprising the european court of human rights and the court of justice of the european union. these courts advance the protection of rights beyond the remit of national constitutional courts. the inter-american system, comprising the inter-american court of human rights, is also developing such protection. however, it encounters challenges in enforcing judgments due to the varying ratifications of the pact of san josé among american states. as we will see in the case study, the analysis in question debates whether institutions such as the world trade organisation (wto) fulfil ‘constitutional functions’ by guaranteeing economic freedoms and incorporating non-trade values such as the environment and human rights into their dispute settlement system and law (petersmann, 2008). this is considered a ‘constitutionalisation’ of wto law, and consequently of international law (trachtman, 2014). some scholars advocate for the ‘constitutionalisation’ of global institutions like the wto, integrating human rights and social justice into their frameworks to address normative gaps in global governance (petersmann, 2017). comparative analyses suggest that cosmopolitan international agreements empowering citizens and decentralized compliance procedures are more effective than traditional state-centric agreements. recent scholarship highlights that the constitutionalization of international law should not only reinforce individual rights but also address the social dimension of global https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 7 governance. in fact, the legitimacy of supranational legal orders, therefore, increasingly depends on their capacity to protect not only civil and political rights but also social rights, as emphasized by peters in her call for a ‘social limb’ in global constitutionalism (peters, 2018). this approach mitigates the neoliberal bias of existing frameworks and supports the development of a more inclusive and equitable international legal order. final considerations. despite its appeal, cosmopolitanism faces practical challenges, including the absence of enforceable global mechanisms and the risk of imposing western values (cabrera, 2020; dahrendorf, 2005; zolo, 2000). nevertheless, it continues to inspire reforms that aim to reconcile national sovereignty with the protection of universal human rights. this change must be both top-down and bottom-up. it must be both institutional and social (held, 2010). while cosmopolitanism provides a compelling ethical and legal framework for advancing global human rights governance, realising this vision requires overcoming significant political, legal, and cultural obstacles. the ongoing evolution of supranational institutions and the push to integrate human rights more fully into global governance demonstrate the continued importance of, and difficulties associated with, cosmopolitan ideals. this tension is more than clear in the regulation of food safety within the framework of the world trade organization. despite the growing recognition of the global nature of health and food safety issues, the international legal framework continues to reflect a normative separation between trade and human rights. the sps agreement, which governs national food safety measures within the multilateral trading system, prioritises non-discrimination and scientific justification. there is no reference in there to human rights obligations. this institutional and legal design perpetuates the idea that food safety is primarily an issue of market access rather than a matter of public health or social justice. furthermore, the absence of a binding global mechanism to enforce economic and social rights, such as the right to health or the right to safe food, creates a normative gap in global governance. legal scholars such as ernst-ulrich petersmann (2012, 2013) have long criticised this discrepancy. they have argued for the integration of human rights into wto law and for reconsidering trade policy as a means of advancing the constitutional principles of justice and sustainability. section 4, which contains case studies of wtoeu food safety disputes, will demonstrate these normative tensions and provide an introduction to the examination of how cosmopolitan principles could transform global trade law into a more rights-based and ethically coherent framework. 3. the one health paradigm: a normative approach to interdependent rights preliminary considerations. in an era where transboundary health risks are a major concern, the traditional approach of national legal regulation is no longer sufficient. one health has emerged as a response to this reality, offering an integrative framework that acknowledges the systemic interconnection of biological, ecological, and social systems. this approach is of pertinence to the governance of food safety in a globalised world, where zoonotic diseases, antimicrobial resistance, and environmental degradation increasingly challenge the effectiveness of isolated and sectoral policy responses. of https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 8 particular significance is the way in which the principles underlying one health are grounded in international human rights law, primarily through the recognition of the right to health. according to this research’s topic, the one health approach aims to achieve global food safety regulation by promoting transdisciplinary collaboration across sectors and disciplines. this is intended to overcome regulatory silos and foster holistic responses to complex health threats. article 12 of the international covenant on economic, social and cultural rights formally recognises the inherent right of all individuals to the highest attainable standard of physical and mental health. this right encompasses access to essential resources such as safe and nutritious food, clean water, and a healthy environment. in this sense, the office of the united nations high commissioner for human rights has observed that food safety is a fundamental component of the right to adequate food and an essential requirement for achieving the right to health. this interpretation has been further developed in general comment no. 14 of the un committee on economic, social and cultural rights. the document clarifies that states have an obligation to respect, protect and fulfil the conditions necessary for safe food systems and environmental health as part of the right to health (hunt, 2016). however, despite its growing prominence in global health discourse, the one health approach remains rooted in soft law instruments, institutional declarations and voluntary cooperation. this means it lacks the binding legal obligations that could consolidate its normative aspirations. against this backdrop, an urgent question arises: is one health a vehicle to move from fragmented soft law to integrated global governance? one health paradigm: as a concept. the one health approach is guided by a holistic understanding of the interface between humans, animals and the environment, and emphasises the importance of interdisciplinary collaboration in effectively tackling global health issues. its primary goal is to enhance global health equity and mitigate health disparities by addressing critical global health concerns, including zoonotic diseases, antimicrobial resistance, food security, and climate change (zhang et al., 2024, p. 2). prominent international organisations, collectively known as the quadripartite, have formally defined the one health approach and play a key role in promoting its global implementation. these organisations are the food and agriculture organization of the united nations, the world organisation for animal health, the world health organization and the united nations environment programme. the one health high-level expert panel also provides implementation guidance (zhou et al., 2025). in order to foster global capacity building, enhance preparedness for preventing, predicting, identifying and responding to these complex health challenges, and promote sustainable development, the quadripartite launched the one health joint plan of action in october 2022 (zhang et al., 2024, p. 2). global one health index report 2022. the 2022 global one health index report, primarily developed by zhou et al. (2025) as an independent academic tool, presents the latest findings of the global one health index (gohi). gohi is an innovative evaluation tool designed to assess and promote the implementation of the one health approach worldwide. this openaccess publication emphasises the development and importance of the gohi in monitoring one health practices in 160 countries and https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 9 territories. it details country-level scores and provides key insights into global and regional performance. the report also offers tailored policy recommendations aimed at strengthening the adoption of one health principles by united nations agencies, national governments and local communities. building on a 2021 pilot study, the report is a valuable resource for researchers, practitioners, policymakers and other stakeholders seeking to advance one health integration in public health, environmental management and animal health governance. the following analysis examines the report’s structure, findings and normative implications for global health governance. from reading the ‘global one health index report 2022’ (zhou et al., 2025), we can extract the following key aspects of the one health paradigm: interconnectedness; addressing complex health challenges; multi-sectoral collaboration; and integration into governance. first, interconnectedness. at its core, one health is based on the principle that the health of humans, animals, and the environment are inextricably linked. human activities directly impact the environment, which in turn affects the health of animals and, ultimately, human well-being. secondly, the need for an integrated approach has become increasingly evident due to the emergence of significant public health threats at the human-animal-environment interface, i.e. complex health challenges. one health is crucial for addressing multifaceted issues such as zoonotic disease outbreaks. these outbreaks are responsible for a significant proportion of new and re-emerging infectious diseases. additionally, antimicrobial resistance is a complex challenge that is exacerbated by interactions across sectors, and climate change directly impacts health outcomes across all three domains. food insecurity is another critical area where an integrative perspective is needed. thirdly, the one health approach emphasises the vital need for interdisciplinary and cross-border collaboration between different sectors and disciplines, as well as at community level. the aim is to remove existing obstacles in order to develop a comprehensive one health framework geared towards societal action. this involves placing a stronger focus on improving communication, coordination, collaboration and capacity building within national development strategies and international cooperation efforts. fourthly, the strategic promotion of the one health concept involves integrating it into global governance and establishing it as a high-level agenda item. this requires engaging a wide array of stakeholders, such as international, non-governmental and civil society organisations, as well as the private sector and academia, to ensure the sustainability of the cooperation network. intergovernmental dialogue is also encouraged in order to establish long-term financing mechanisms, global early warning and response systems, and preparedness for future pandemics in collaboration with international partners. one health joint plan of action. the one health joint plan of action (ohjpa) for 2022-2026 represents a significant normative and strategic milestone in advancing the one health paradigm. developed and adopted by the quadripartite, the ohjpa aims to provide a unified operational framework for the global implementation of one https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 10 health principles. its primary objective is to coordinate international efforts, set priorities and guide policy action, institutional collaboration and capacity building at the global, regional and national levels. by offering a structured approach to tackling complex health challenges at the interface between humans, animals, and the environment, the ohjpa aims to transform the one health concept from an aspirational framework into a coherent model for integrated global health governance (world health organization et al., 2022). this analysis examines the content, strategic priorities and normative significance of the ohjpa within the broader context of one health implementation. this plan was created in response to international calls for preventing future pandemics and promoting sustainable health through the one health approach and acknowledges that economic development has often occurred at the expense of ecosystems and environmental health, leading to tremendous pressures on natural systems (world health organization et al., 2022, p. 3). it emphasizes the urgent need to reassess and transform these interactions to achieve economic, environmental, and social sustainability, thereby contributing to the sustainable development goals (world health organization et al., 2022, pp. 22-26). the core of the plan outlines action tracks (world health organization et al., 2022, part. 3, pp. 21-55). regarding the core of this article, we would dive into the action track 4: strengthening the assessment, management and communication of food safety risks. action track 4 is designed to create a more resilient and effective global food safety system by embedding the holistic one health philosophy into policy, data collection, risk assessment, and surveillance, acknowledging the complex interplay between all living organisms and their shared environment (world health organization et al., 2022, pp. 39-43). food systems, encompassing the entire pathway from production to consumption, are situated at the intersection of human, animal, plant, and environmental health. the methods employed in food production influence not only the safety of the final product, but also animal health and welfare, plant health, and environmental integrity. conversely, the conditions of the production environment, as well as the health of animals and plants, can significantly affect food safety. this intricate interdependence underscores the necessity of adopting a one health approach to effectively safeguard food safety, while also highlighting that ensuring food safety is integral to advancing one health objectives (world health organization et al., 2022, pp. 39-40). this action aims to bolster national food safety systems by focusing on the establishment or improvement of critical infrastructure components. this includes food safety legislation, standards, guidelines, laboratory capacity, food control activities, and emergency preparedness and response. the goal is to help countries reduce risks from unsafe food, ensure food authenticity, and enhance fair and safe trade, with particular attention to lowand middle-income countries (world health organization et al., 2022, pp. 40-41). action track 4 is structured into three interdependent actions, each with specific activities, deliverables, and timelines: action 4.1: strengthening the one health approach in national food control systems and food safety coordination; action 4.2: utilize and improve food systems data and analysis, scientific evidence and risk assessment in https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 11 developing policy and making integrated risk management decisions; and action 4.3: foster the adoption of the one health approach in national foodborne disease surveillance systems and research for the detection and monitoring of foodborne disease and food contamination. final considerations: the right to food safety as a human right. although the one health paradigm offers a vital integrative framework for addressing the complex relationships between human, animal and environmental health, it is primarily based on non-binding legal instruments, voluntary cooperation and institutional declarations. integrating one health within a rights-based framework is crucial for transforming its holistic vision into enforceable commitments and coherent global governance. there are clear examples of how the right to health creates legal obligations for states. the right to health obliges states to respect, protect and fulfil the conditions necessary for health, including food and environmental safety (cescr, 2000). for instance, states must regulate private actors to ensure food safety, adopt policies to combat antimicrobial resistance and provide access to clean water and safe nutrition (cescr, 2000, paras. 33-37). ensuring food safety on a global scale requires scientific collaboration, as well as regulatory mechanisms that can monitor compliance, enforce standards, and apply sanctions. however, most national states have been reluctant to cede these capacities to international bodies. this reluctance reflects deeper conflicts between national sovereignty, economic competitiveness, and the often contested neutrality of technological standards. as jasanoff (2004) has argued, the role of science in policymaking is often influenced by political and economic agendas, determining which risks are prioritised and which knowledge is given legitimacy. similarly, de schutter (2014) emphasises that food governance cannot be reduced to technical efficiency or market logic. on the contrary it must be anchored in rights-based principles that address power asymmetries and ensure accountability. these insights illuminate the complex landscape in which esg frameworks are now emerging as influential tools for advancing food safety. this raises the question of whether they can meaningfully contribute to a more rights-oriented and globally coherent system of food governance. against this backdrop, esg frameworks have gained prominence as instruments capable of shaping corporate behaviour and guiding investment decisions towards more sustainable and socially responsible practices2. originally developed in financial and business contexts, esg criteria are now being promoted by international organisations, investors, and regulators as a means of achieving long-term sustainability goals than can be related with food safety, environmental health, and labour rights. thanks to their flexibility and global reach, esg criteria have the potential to generate accountability through non-state mechanisms such as market access, reputational pressure and stakeholder reporting. however, this potential has limitations. esg standards remain 2 in 2004, the term ‘esg’ became official after its first mainstream appearance in a report titled, “who cares wins” (international finance corporation, 2004). https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 12 3 another interesting line of research would be the analysis of the current crisis of the dss at the wto and its plausible reform adopting a right-based orientation in order to constitutionalise the wto law. largely voluntary, inconsistent and susceptible to corporate influence. the challenge for this article, then, is to assess how esg can evolve from a market-oriented compliance tool into a normative framework that enforces human rights obligations and supports the transition from fragmented global soft law to an integrated, rights-based governance system for food. in this line, action track 4 of the global food safety framework provides a detailed plan for incorporating the one health approach into national food safety systems, risk assessments and surveillance (world health organization et al., 2022, pp. 39-43). by strengthening legislative frameworks, scientific capacities and integrated monitoring at the human-animal-plantenvironment interface, action track 4 supports national states in meeting their constitutional obligations to protect public health and environmental integrity, as well as their international commitments under the wto sps agreement. in this sense, action track 4 helps to reduce the legal tensions that have emerged in wto disputes (such as ec – hormones, ec – seal products analysed in section 4), in which measures intended to protect health, or the environment have been contested as unjustified barriers to trade. promoting science-based, transparent and proportionate sps measures reinforces the legitimacy of food safety actions as expressions of constitutional values and fundamental rights while facilitating compliance with international trade law. 4. case study: wto-eu food safety tensions as human rights dilemmas introductory considerations. through the sps agreement, the wto plays a central role in global food safety governance. this agreement requires member states to base food safety regulations on scientific risk assessments, while encouraging harmonisation with international standards, such as those set by the codex alimentarius commission. this framework aims to balance states’ right to protect public health with their obligation not to create unnecessary barriers to trade (kastner & pawsey, 2002). in the context of wto dispute settlement (dispute settlement understanding, 1995), the tension between trade obligations and human rights protections becomes particularly apparent, as states often encounter legal limitations when attempting to regulate food safety in line with public health, environmental, or ethical considerations3. the european union is a leading global standard-setter and a frequent participant in wto food safety disputes. while the eu’s stringent food safety regulations often exceed international norms and have positioned it as a regulatory leader, they have also made it a ‘preference outlier’. this limits its influence in global standard-setting and makes it a recurrent party in high-profile wto disputes, such as ec – hormones and ec – seal products (young, 2014). these disputes highlight the eu’s dual role of advancing high food safety standards domestically and defending them internationally, sometimes in the face of challenges from trading partners and the wto dispute settlement system. therefore, while these cases demonstrate functional convergence, they also reveal a normative disjuncture: global trade law incorporates scientific health standards to https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 13 4 disputes involving food certification and labelling, such as the us – country of origin labelling case and the tuna-dolphin and shrimp-turtle cases, are also relevant for exploring how domestic political pressures and environmental or health concerns shape compliance and regulatory outcomes (cezar, 2020). in this article, the focus is going to be oriented to disputes where european union (previous, european communities) has been sued to narrow geographically the analysis. nonetheless, there is left here a very appealing line for further research. facilitate regulatory harmonisation, yet remains institutionally and legally detached from the human rights regime. a central normative question emerges: are these legal disputes fundamentally about the application of rules, or do they reflect deeper power dynamics between regulatory actors? research suggests that while the sps agreement provides a legal framework for resolving disputes, outcomes often hinge on the relative power and preferences of the parties involved, with the eu’s regulatory stringency sometimes undermining its ability to shape global norms (young, 2014). as will be explored in this case study, the analysis debates whether institutions such as the world trade organization fulfil ‘constitutional functions’ by guaranteeing economic freedoms while incorporating non-trade values such as environmental protection and human rights into their legal reasoning and dispute settlement mechanisms (petersmann, 2008). this evolution has been described as the constitutionalisation of wto law, and by extension, of international law itself (trachtman, 2014). from a cosmopolitan one health perspective, these disputes underscore the need for a more integrated approach that bridges the gap between trade law and human rights, including the right to health and food safety. current trade law frameworks remain institutionally detached from the human rights regime, leaving significant gaps in the effective protection of food safety at the international level. the eu’s experience demonstrates both the potential and the limitations of using trade law to advance broader public health and ethical objectives, highlighting the importance of ongoing debate about the constitutionalisation of wto law and the incorporation of non-trade values into global food governance (corini, 2015). key disputes. in the context of global food safety and the right to health, the most instructive and paradigmatic food safety cases are the european communities – hormones dispute and the european communities – biotech products dispute. both cases directly address the intersection of food safety, scientific risk assessment and the limits of national regulatory autonomy under the sps agreement (matsushita, 2009). the ec – hormones dispute is particularly notable in demonstrating how the wto strikes a balance between trade liberalisation and the right of states to safeguard public health, and how scientific evidence is considered alongside precautionary measures (kastner & pawsey, 2002). the ec – gmos dispute further highlights the challenges of regulating new food safety technologies and the tensions between domestic risk preferences and international trade obligations (guzman, 2004). the ec – seal products dispute introduces an important ethical dimension by incorporating public morality and animal welfare into the wto’s dispute settlement system, raising questions about the evaluation of non-scientific justifications for trade restrictions within the framework of general agreement on tariffs and trade exceptions4. together, these disputes reveal the limitations of the wto’s current approach, which often treats food safety as a technical trade issue rather than a broader https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 14 human rights or constitutional concern. they also highlight the need for more inclusive, health-centred global governance frameworks. ec – hormones (ds26/ds48): precaution vs. scientific risk. the ec – hormones dispute arose from the european union’s ban on imports of hormone-treated beef, citing concerns over potential public health risks, including long-term effects such as endocrine disruption. the ban, implemented through council directive 96/22, covered both synthetic and natural hormones and applied to both domestic and imported meat, with exceptions only for therapeutic and zootechnical purposes (neugebauer, 2000). the united states and canada challenged the ban under the sps agreement by failing to provide a risk assessment that adequately supported the ban, even though the appellate body disagreed with the panel regarding the consistency of the ban with international standards (davey, 2006). the case thus epitomises the tension between the eu’s reliance on the precautionary principle, an approach that allows for preventive action in the face of scientific uncertainty, and the wto’s emphasis on science-based risk regulation and procedural consistency among members (gruszczynski, 2013). while the sps agreement does allow for provisional measures in cases of scientific uncertainty (article 5.7), the eu’s ban was not found to meet these requirements (carlarne, 2007, pp. 306-309). the article 5.7 of the sps agreement is a qualified exemption from the general requirement for science-based measures, designed to prevent abuse of the precautionary principle for protectionist purposes (ansari and wartini, 2014). the provision is interpreted narrowly: it applies only when scientific evidence is truly insufficient, and imposes procedural obligations to ensure that provisional measures are temporary and subject to ongoing review (mercurio and shao, 2010). the eu’s approach was found lacking because it treated scientific uncertainty as absolute, rather than relative and evolving with new evidence (pauwelyn, 1999). from a one health perspective, the ec – hormones dispute highlights the interconnectedness of human health, animal welfare, and environmental concerns, as the use of growth hormones in livestock production raises systemic questions about food safety, sustainability, and public trust in regulatory institutions. this case exposes the challenges of accommodating higher domestic health standards and public values within the wto’s trade framework, raising important questions about the scope of regulatory autonomy and the legitimacy of international standardsetting processes (gruszczynski, 2013). a cosmopolitan approach invites reflection on whether international trade rules should provide greater space for domestic regulatory autonomy when it is grounded in higher public health standards and societal values. ec – approval and marketing of biotech products (ds291/ds292/ds293). the ec – biotech products dispute arose from complaints by the united states, canada, and argentina, who challenged the european union’s de facto moratorium on the approval of genetically modified organisms (gmos). while the eu did not formally prohibit gmos, it effectively suspended new authorizations and permitted member states to maintain national bans, citing public health, environmental, and consumer concerns. these https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 15 measures, in practice, constituted a prolonged suspension of the eu’s approval system, which the complainants argued contravened the wto’s sps agreement (winham, 2009). in its 2006 report, the wto panel found that the eu had breached several sps provisions, notably by failing to complete risk assessments and by not justifying the moratorium or member state bans on scientific grounds as required by article 5.1. the panel did not rule on the intrinsic safety of gmos, but its reasoning reinforced the primacy of science-based risk assessment in sps measures, thereby limiting the eu’s reliance on the precautionary principle as a sufficient legal basis for regulatory delay (bodansky and lester, 2007). the panel considered the concept of ‘insufficiency of scientific evidence’ under article 5.7 of the sps agreement to be an objective, binary threshold; either there is sufficient evidence to conduct a risk assessment or there is not. however, this approach has been criticised for failing to recognise that scientific sufficiency is inherently relative and context-dependent. gruszczynski (2008; 2009) argues that sufficiency should be assessed in light of the specific regulatory, cultural and scientific context in which decisions are made and that it may legitimately differ between scientific communities or regulatory authorities in different countries. by contrast, the panel’s method risks imposing a onesize-fits-all standard that does not account for diversity of opinion within the scientific community or the evolving nature of scientific knowledge. in summary, the panel’s absolute and decontextualised approach to scientific sufficiency has been criticised for disregarding the relativity of scientific uncertainty, the legitimacy of culturally sensitive precaution and the evolving nature of scientific knowledge in regulatory decision-making. the case also illustrates the expanding scope of the sps agreement. the panel interpreted it as covering a wide range of health and environmental measures, raising concerns about the wto’s encroachment on domestic regulatory autonomy and environmental protection. the panel’s narrow interpretation of the precautionary principle and preference for quantifiable, science-based evidence highlights the ongoing tension between precautionary regulation and the risk-based model embedded in wto law (peel, 2006). from a one health perspective, the dispute underscores the complex interdependence of human, animal, and environmental health, and the challenge of regulating emerging biotechnologies amid scientific uncertainty and contested risk perceptions (footer, 2006). the eu’s precautionary stance can be understood as an effort to mitigate not only known risks but also emerging and uncertain harms at the intersection of agriculture, food safety, and environmental sustainability, precisely the kind of systemic thinking that one health encourages. finally, the dispute raises normative questions about global regulatory pluralism and the legitimacy of international trade law in constraining democratically endorsed public health and environmental standards. should international trade law override national or regional regulatory autonomy when it is exercised to protect fundamental values such as health and environmental integrity? the sps agreement’s strictures may inadequately https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 16 accommodate legitimate diversity in public values and risk tolerances, calling for a more flexible, pluralistic approach to global governance that recognizes the legitimacy of precautionary and context-sensitive regulatory choices (foster, 2008). it calls for a rethinking of global regulatory pluralism, one that accommodates legitimate diversity in public health priorities within a shared framework of human rights and environmental responsibility. ec – seal products (ds400/ds401): morality, animal welfare, and cultural rights. the ec – seal products dispute is a landmark case that expanded the wto’s engagement with noneconomic regulatory objectives, particularly those relating to public morals, animal welfare, and indigenous rights. the eu’s ban on seal products was motivated by ethical concerns over animal welfare. canada and norway argued that the ban violated non-discrimination obligations under the gatt and the tbt agreement. this case is notable for its engagement with non-economic regulatory objectives, particularly at the intersection of animal welfare, public morals, and indigenous rights. both the panel and the appellate body recognised that animal welfare concerns could be considered part of public morals under article xx(a) of the gatt. the ab’s approach confirmed that the definition of public morals is inherently variable and contextdependent, reflecting the diverse values of wto members. while the ab upheld the eu’s objective, it found that the exceptions in the regime were applied inconsistently, particularly those for indigenous communities (inuit). this resulted in arbitrary or unjustifiable discrimination, which is contrary to the chapeau of article xx (fernándezpons and lembo, 2019). the panel and the appellate body clarified that a measure with internal exceptions can still qualify as a legitimate exception under article xx, provided that the exceptions serve acceptable policy objectives and are not applied in a manner that undermines the measure’s core purpose. this marked a significant interpretative development, affirming that wto members may restrict trade in order to protect ethical values, even when such measures are not strictly science-based or economically motivated. besides, this new possibility of interpretation highlights the challenge of balancing ethical aims with the fair treatment of affected groups, particularly indigenous peoples whose cultural rights are implicated. the ab’s acceptance of pluralistic regulatory values indicates a wider acknowledgement of the validity of ethical and cultural diversity in trade policy. however, it also raises concerns regarding the consistency and predictability of wto law (das and narayan, 2016). unlike the ec – hormones dispute, the seal products case centred on nonscientific justifications such as public morals and cultural rights. this challenged the wto’s traditional focus on technical or economic criteria. it affirms the legitimacy of animal welfare and public morals as grounds for trade restrictions, but requires that such measures be applied non-discriminatorily. the case exemplifies the ongoing tension between trade liberalisation, ethical pluralism and the rights of indigenous peoples. it calls for a nuanced approach to global regulatory governance that respects both universal and particularistic values (fernández-pons & lembo, 2019). the one health approach provides further normative depth by emphasising the connections between animal health, biodiversity conservation and long-term public health – concerns that go beyond https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 17 strict scientific quantification and are aligned with ethical and ecological reasoning. cosmopolitanism further develops this perspective by posing the question: how should global trade governance accommodate cultural pluralism, collective ethical commitments, and noneconomic expressions of public interest? the recognition of moral and cultural grounds as valid justifications for trade restrictions, even if imperfectly applied, suggests that the wto system is open to rights-based or ethical reasoning to some extent. this reveals a potentially significant development: the possibility of recognising the human rights to health and food security through moral, ecological and cultural imperatives as well as scientific and economic criteria. such recognition could open the door to a broader normative debate within the wto about how to reconcile trade rules with the evolving demands of global health and food justice, because the wto law only regulates the food safety at the present. trade concerns: eu pesticides and sustainable food. although no formal wto dispute has been initiated, several members have expressed ongoing concerns about the eu’s restrictive pesticide policies. these include maximum residue limits and hazardbased cut-off criteria under the eu’s green deal and farm to fork strategy. critics argue that these measures effectively act as trade barriers, particularly affecting agricultural exports from the global south. the european union’s increasingly stringent pesticide regulations, particularly the harmonization and tightening of maximum residue limits (mrls), have become a focal point of international trade tensions. non-eu countries such as brazil, argentina, and the united states have raised concerns that these measures function as de facto trade barriers, disproportionately affecting agricultural exports from the global south. empirical research demonstrates that stricter eu mrls can significantly reduce bilateral trade flows; for example, a more stringent mrl policy has been shown to decrease us exports of fruits and vegetables to the eu by as much as 13.8% (hejazi et al., 2022, p. 7). these findings underscore the trade-restricting nature of regulatory divergence in pesticide standards. at the same time, the eu is defending its pesticide policies, arguing that they are science-based and aligned with the broader sustainability and public health objectives set out in the green deal and the farm to fork strategy5. in fact, the harmonisation of maximum residue levels across eu member states has increased intra-eu trade, improved product quality and lowered prices. this suggests that regulatory alignment can have positive outcomes for trade and consumers within the eu (shingal and ehrich, 2024)6. 5 the farm to fork strategy is at the heart of the european green deal aiming to make food systems fair, healthy and environmentally friendly. the strategy sets out both regulatory and non-regulatory initiatives, with the common agricultural and fisheries policies as key tools to support a just transition. for r more information, see the european commission’s official page on the farm to fork strategy: https://food. ec.europa.eu/horizontal-topics/farm-fork-strategy_en (accessed: 01 july 2025). 6 furthermore, evidence from the eu-swiss agri-food trade relationship suggests that regulatory homogeneity, whereby trading partners adopt similar mrls, can enhance food security by increasing product variety, lowering prices and boosting import volumes (fiankor & shingal, 2025). https://doi.org/10.17561/tahrj.v25.9797 https://food.ec.europa.eu/horizontal-topics/farm-fork-strategy_en https://food.ec.europa.eu/horizontal-topics/farm-fork-strategy_en a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 18 however, the externalization of eu food safety standards through its trade relationships raises complex questions about the global governance of food safety and the normative reach of the sps agreement. discrepancies in pesticide regulations, particularly when developing countries use substances banned in the eu or maintain different mrls, create significant challenges for exporters and can disrupt international trade. in fact, these regulatory gaps are further complicated by the lack of harmonization with codex mrls and the persistence of unauthorized pesticide use in some regions, highlighting the need for greater international cooperation and capacity-building in pesticide management (kubiakhardiman et al., 2022). looking ahead, the eu’s approach to pesticide regulation, which is based on the principles of precaution and sustainability, could provide an opportunity to test the wto’s capacity to support human rights-based and ecologically sustainable food systems. as the eu continues to align its food safety standards with the sustainable development goals and environmental, social and governance frameworks, future legal disputes may challenge the extent to which wto law can evolve to balance trade facilitation with protecting health, the environment and broader societal values. final considerations. what does these disputes show us about the gap between global trade law and global health law? the collaboration between the wto and the codex alimentarius commission exemplifies both an effort to align global trade law with international food safety norms, and the persistence of structural and normative gaps between trade and health governance. pursuant to the agreement on the sps agreement, wto members are encouraged to base their domestic sanitary and phytosanitary regulations on “international standards, guidelines or recommendations” (article 3(1)), with the codex alimentarius explicitly identified as the relevant standard-setting body for food safety (sps agreement, annex a, para. 3(a)). the codex, established in the early 1960s by the food and agriculture organization and the world health organization, operates as a science-based forum producing voluntary food safety standards with the dual purpose of protecting public health and promoting fair trade practices (food and agriculture organization and world health organization, 2020). however, this modus of understanding reveals a significant governance gap: while the codex standards reflect robust scientific consensus and public health expertise, they lack direct legal force unless the codex is integrated into wto adjudication. within the wto framework, the codex standards serve primarily as reference points for determining whether national measures are ‘necessary’ or ‘justified’ under sps agreement. in disputes such as ec hormones (ds26, ds48) and ec sardines (ds231), the dispute settlement body has relied on codex standards to assess whether domestic food safety regulations constitute disguised trade barriers (world trade organization appellate body, 1998, wt/ ds26/ab/r and wt/ds48/ab/r; wto appellate body, 2002, wt/ds231/ab/r). this use, however, subordinates public health protection to the trade logic of non-discrimination and market access, rather than recognizing food safety as an enforceable component of the human right to health (hunt and backman, 2008). furthermore, the codex alimentarius operates as a soft law instrument. therefore, the codes runs without mechanisms for enforcement, participatory oversight, or individual redress. its standards are not binding under international human rights law and are not https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 19 framed within a rights-based paradigm. the sps agreement itself conceptualizes food safety primarily in terms of technical barriers to trade, rather than through a framework of public health accountability or state obligations to protect the right to safe food (sps agreement, article 2 and annex a, para. 1). as illustrated in the preceding case study, this tension is central to a broader scholarly debate, this tension is central to a broader scholarly debate over whether institutions such as the wto can be understood to perform ‘constitutional functions’ namely, by guaranteeing economic freedoms while also incorporating non-trade values such as environmental protection and human rights into their legal reasoning and dispute settlement mechanisms (petersmann, 2008). this process has been described as the ‘constitutionalisation’ of wto law and, by extension, of international law itself (trachtman, 2014). the extent to which food safety is conceptualized as a trade measure rather than a human right thus raises important questions about the legitimacy, limits, and evolving role of global trade institutions in protecting non-economic values. 5. food safety and esg: toward a rights-based framework preliminary considerations. the intersection between food safety and human rights is often overlooked in global governance debates, where the focus tends to gravitate toward food security and access. yet food safety, defined as the assurance that food will not cause harm to the consumer when prepared and consumed as intended, is an equally fundamental dimension of the right to adequate food. while food security concerns availability, access, and stability of food supply; food safety concerns the quality and safety of what is consumed. this distinction is essential: a person may have regular access to food and still suffer serious violations of their right to health due to contaminated or unsafe food products. the office of the high commissioner for human rights has affirmed that the right to food encompasses not only the availability of food but also its safety and acceptability, as reflected in general comment no. 12 of the committee on economic, social and cultural rights, which interprets article 11 of the international covenant on economic, social and cultural rights to include food safety as a core component of the right to adequate food (ayala and meier, 2017). the universal declaration of human rights, article 25, also recognizes the right to a standard of living adequate for health and well-being, including food, which implicitly requires that food be safe and nutritious (united nations general assembly, 1948). from a governance perspective, the codex alimentarius, developed by the fao and who, has become the central reference point for international food safety standards and is explicitly recognized in the wto’s sps agreement. however, the voluntary and technocratic nature of these instruments raises questions about their normative robustness and ability to advance a rightsbased approach, as they often lack direct enforceability and may not fully integrate human rights obligations (milian gómez, 2024). in this context, esg frameworks offer an emerging avenue for embedding food safety obligations within broader accountability systems, but their contribution remains contested and incomplete, as they are typically non-binding and rely on market and reputational incentives rather than legal compulsion (pettoello-mantovani and olivieri, 2022). https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 20 the eu’s approach to pesticide regulation, grounded in principles of precaution and sustainability, may offer an important testing ground for assessing whether the wto can accommodate food systems that prioritize human rights and ecological values. as the eu continues to align its food safety standards with the sdgs and esg frameworks, future legal disputes may challenge the current balance between trade liberalization and the protection of health, the environment, and other public goods (pettoello-mantovani and olivieri, 2022). these emerging tensions invite a shift in how food safety is conceptualized: not simply as a technical trade issue, but as an integral element of the human right to health and dignity, as recognized in evolving international doctrine and legal scholarship (milian gómez, 2024). this shift also demands broader governance reflection. how can international legal frameworks ensure that food is not only available and accessible, but also safe and healthpromoting? can the fragmentation between trade law, public health, and human rights be overcome through integrated tools such as esg reporting and sdg-based governance mechanisms? the literature suggests that a rights-based approach–grounded in both legal and institutional innovation–can embed food safety into the evolving architecture of global sustainability and accountability, but this requires explicit recognition of food safety as a legal right and the harmonization of international, regional, and national legal frameworks (milian gómez, 2024). esg frameworks. although esg frameworks originated in the fields of corporate governance and financial risk management, they have increasingly influenced global discussions on sustainability in food systems, particularly with regard to corporate responsibility for public health and food safety. the growing importance of esg in the food sector is evident in recent eu regulatory proposals and sustainability action plans, which emphasise the necessity for companies to incorporate environmental, social and governance considerations into their operations and reporting practices (gossain, 2023)7. similarly, the sdgs provide a shared normative agenda that promotes longterm ecological balance, cross-sectoral coordination and the protection of fundamental rights, including the right to health. together, both the esg and the sdgs create a new space in which food safety can be incorporated into institutional accountability and sustainability metrics. increasing pressure from consumers, investors and regulators for transparent esg reporting is prompting food companies to adopt robust sustainability and food safety practices (gołębiewski, 2023). nonetheless, the complexity and diversity of esg regulations across jurisdictions present significant legal and ethical challenges, highlighting the need for clearer, harmonised guidelines to ensure effective, accountable implementation (gossain, 2023). the esg and codex alimentarius. although esg standards are often described as soft law due to their voluntary nature and the risk of superficial compliance, such as 7 these frameworks are reinforced by international initiatives such as the task force on climate-related financial disclosures and the paris agreement, which have accelerated the harmonisation of reporting standards and provided stronger legal foundations for esg compliance worldwide.ia one health approach to food safety and the right to https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 21 greenwashing, they are becoming increasingly influential in shaping corporate behaviour. this influence stems from investment screening, reputational incentives, and pressure from consumers and civil society. for example, the un principles for responsible investment encourage investors to consider esg risks, including those related to food safety and public health, in their decision-making processes. this, even being soft law, creates a form of market-driven accountability. in this context, internationally recognised food safety standards, such as those of the codex alimentarius and the wto’s sps agreement, can be incorporated into corporate supply chain policies, quality assurance protocols, and esg reporting (gregory et al., 2024). although these esg frameworks and the codex alimentarius are not legally binding, firstly, the esg frameworks may thus serve as a complementary governance mechanism even in the absence of formal legal obligation, providing a pathway for food safety to become part of private sector compliance and transparency. secondly, the codex alimentarius offers a comprehensive set of principles for good hygiene practices, which can guide food producers in aligning their processes with both food safety and esg objectives. however, the diversity and lack of harmonization in esg ratings and reporting methodologies present ongoing challenges, underscoring the need for clearer guidelines and more robust integration of codex principles into esg frameworks to ensure meaningful and accountable implementation (gregory et al., 2024). in this context, the sps agreement and the jurisprudence of the wto in its implementation can serve as a guide to move from soft law to more binding law. soft law as a pathway to hard law: the normative evolution of esg frameworks. despite critiques that esg standards lack binding authority and are vulnerable to greenwashing, it is essential to recognize that soft law has historically served as a stepping stone to binding obligations in international law. for example, in international environmental law, the progression from the non-binding stockholm declaration (1972) to the rio declaration (1992), and ultimately to legally binding agreements like the paris agreement (2015), illustrates how soft law can lay the groundwork for subsequent hard law instruments. similarly, in the domain of business and human rights, the un guiding principles on business and human rights (2011), though nonbinding, have significantly influenced national legislation, corporate policies, and due diligence obligations, as seen in the development of the eu’s corporate sustainability due diligence directive (european union, 2024). soft law instruments, such as esg frameworks, offer flexibility and broad participation, allowing ambitious norms to be established and political pressure to be exerted on laggards, which can accelerate the transition to binding regulation. in the context of global health and sustainability, soft law policies have shaped global norms and expectations, but, especially in crisis situations, their limitations have prompted calls for more robust, enforceable legal frameworks. thus, esg frameworks can be seen as incubators of normative consensus. when reinforced by political will, civil society engagement, and investor expectations, they may evolve into binding regulatory regimes at domestic, regional, or international levels. from a food safety perspective, this dynamic offers a promising avenue for embedding codex alimentarius principles, sustainability https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 22 goals, and the right to health into more robust legal and policy frameworks, leveraging the complementary strengths of both soft and hard law to advance global standards and accountability (meier et al., 2025). esg and corporate behaviour: internalizing food safety through market accountability. esg frameworks have reshaped corporate accountability by pushing companies to uphold food safety standards, not just financial performance. in the food sector, pressure from investors, consumers, and reputational risks increasingly incentivises alignment with codex alimentarius guidelines. many global food companies have already begun to voluntarily implement codexaligned standards. for example: adopting hazard analysis and critical control points systems, carrying out food safety audits based on codex guidelines and disclosing risk management practices (camilleri, 2025). empirical research shows that continuous environmental, social and governance management activities in the food sector enhance corporate reputation, consumer trust and intention to buy again, and demonstrates that market-driven accountability can be a powerful motivator for food safety compliance (tian et al., 2024). furthermore, esg disclosures are increasingly being used to communicate responsible food safety practices to stakeholders. these disclosures are guided by standards such as those set out by the global reporting initiative and the sustainability accounting standards board (camilleri, 2025). this process of internalization demonstrates how soft norms, when embedded in esg metrics and investor expectations, can influence corporate behaviour. although it cannot replace formal legal frameworks, it offers an alternative mode of governance, particularly in a globalised food system where corporations frequently operate beyond the jurisdiction of national regulators (tian et al., 2024). final considerations. in order to strengthen the nascent alignment between global food safety standards and corporate responsibility, public institutions and international organisations should actively support the development of esg reporting frameworks that explicitly incorporate the principles of the codex alimentarius. by encouraging firms to embed food safety into their risk assessments, sustainability metrics, and governance structures, such guidance can promote a more coherent and accountable model of food system governance. this effort would not only enhance transparency and consumer trust, but also contribute to the recognition of food safety as a core element of the human right to health. in doing so, it could help bridge the normative divide between trade law, public health, and human rights-advancing a cosmopolitan vision of global governance in which private and public actors share responsibility for upholding health and sustainability standards across borders (camilleri, 2025). 6. conclusions reframing global food safety through the right to health. this article explores the normative, legal and institutional disconnect between food safety regulation and the international human rights framework, with a particular focus on the right to health. although food safety is an essential aspect of the right to adequate food, it is marginalised within the global legal framework, primarily due to the ongoing fragmentation of health governance based on sovereignty. in this context, the absence of binding global food safety https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 23 standards is not merely a technical oversight, but reflects deeper structural asymmetries in the global order, such as those between trade and health law, soft law and enforceable norms, and market efficiency and ethical responsibility. the right to health, as set out in international human rights law (particularly article 12 of the international covenant on economic, social and cultural rights), obliges states to ensure access to safe and nutritious food. however, there is currently no binding international legal instrument that integrates food safety as an enforceable legal entitlement beyond national borders. as demonstrated, the fragmented normative architecture, characterised by the wto sps agreement, the codex alimentarius and esg soft law, fails to coalesce around a unified, rights-based framework for food governance. this regulatory gap suggests the need for a paradigm shift, from sectoral governance based on trade facilitation, to an integrated regime that embeds health and safety within global public goods frameworks. the one health paradigm offers a compelling means of achieving this transformation, particularly when reinforced by cosmopolitan legal theory and esg accountability mechanisms. from soft law aspirations to integrated global governance: the role of one health. the one health approach provides a comprehensive understanding of the interconnected nature of human, animal, and environmental health. in practice, however, it remains grounded in soft law instruments, declarations and institutional coordination platforms, lacking enforceable mechanisms. this limits its capacity to address cross-border threats with binding force. while the one health joint plan of action (2022–2026) and the global one health index represent significant progress, they still operate within voluntary regimes. can one health evolve from a soft law discourse into a normative foundation for integrated governance? this article argues that it can, but only if it is anchored within binding legal obligations, particularly the right to health. the legal codification of one health principles would strengthen the accountability of both states and corporations and provide a coherent framework for addressing emerging risks, such as outbreaks of zoonotic diseases, antimicrobial resistance and collapse of the food system. one health is uniquely positioned to bridge current governance silos. its integrative ethos, based on scientific cooperation and cross-sectoral coordination, aligns with the pluralistic and ethical principles of cosmopolitan legal theory. integrating one health into international legal frameworks through sdg alignment, esg integration and reinterpreting existing treaties offers a pragmatic way to enhance legal coherence, improve public health resilience and safeguard shared ecological resources. key findings from the wto–eu food safety case study: are these disputes about rules or about power? an analysis of wto–eu food safety disputes (ec– hormones, ec–biotech, ec– seal products and pesticide trade concerns) reveals an ongoing tension: is the wto legal order equipped to protect health as a human right, or is it predisposed to prioritise trade liberalisation? while wto jurisprudence has slowly evolved to recognise certain non-economic values (e.g. public morals and animal welfare), the evidence suggests that its core institutional design continues to favour market access and scientific risk rationality over precautionary, ethical, or context-sensitive approaches to regulation. https://doi.org/10.17561/tahrj.v25.9797 a one health approach to food safety and the right to health in a global governance the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 24 this asymmetry is particularly apparent in disputes where the eu seeks to enforce higher regulatory standards based on precautionary, cultural or ethical grounds. while some of these standards reflect cosmopolitan ideals, such as transnational environmental responsibility or animal welfare, others are considered neo-colonial or protectionist by affected trading partners, particularly those in lowand middle-income countries. from a cosmopolitan perspective, these tensions reveal not also legal inconsistencies; they expose the global power dynamics inherent in rule-based multilateralism. the outcomes of disputes most of the time depend on relative bargaining power and institutional asymmetries, rather than the merits of the public health claims presented. the ec – seal products case is particularly illustrative in this light because while the wto accepted public morals as a valid basis for trade restrictions, it also demonstrated how difficult it is to apply pluralistic values within a system that demands constant jurisprudence, nondiscrimination and scientifically based justification. meanwhile, the other two disputes analysed in this paper, biotech and hormones, revealed the constraints imposed by the narrow construction of scientific sufficiency in the sps agreement, which fails to account for evolving or contested scientific knowledge. ultimately, these disputes demonstrate that wto law does not adequately accommodate the diversity of legitimate food safety standards, precautionary approaches and public health priorities across jurisdictions. a cosmopolitan trade regime would require respect for local contexts and vulnerabilities, including culturally embedded food preferences and ethical norms, recognition of shared transnational responsibilities – especially with regard to ecological protection and public health risks that transcend borders – and a regulatory approach that balances science, precaution and ethics, rather than defaulting to a uniform model of scientific rationality. normative implications and policy reform directions. this article contributes to the growing body of scholarship calling for a rights-based reconfiguration of global food governance. several normative implications and policy directions emerge: first, food safety should be reconceptualised as a human right, rather than merely a trade concern. this would require revising the wto sps agreement to include references to the right to health, and ensuring that trade rules align with international human rights law. second, legally integrate one health into global health and food governance. this could be achieved through new treaties, interpretative declarations or amendments to existing instruments (e.g. the who international health regulations) to include food safety and the environmental determinants of health. the esg agenda should move towards establishing binding obligations. as the article has shown, esg frameworks currently operate as market-driven accountability mechanisms. however, they have significant normative potential. by incorporating codex alimentarius standards, one health principles, and human rights metrics into esg reporting, governments and international organisations can promote compliance within the private sector and achieve public objectives. there should be institutional convergence between trade and health governance bodies, including stronger collaboration between the wto, the codex, the who and human rights institutions. joint interpretative guidance, cross-referencing standards, and inclusive participation by health and civil society actors https://doi.org/10.17561/tahrj.v25.9797 naiara arriola echaniz the age of human rights journal, 25 (december 2025), e9797 issn: 2340-9592 doi: 10.17561/tahrj.v25.9797 25 in trade forums would contribute to legal coherence. global democratic legitimacy can be enhanced through participatory governance. the legitimacy crisis in international law stems from fragmented norms and the exclusion of affected communities from decisionmaking processes. cosmopolitan governance requires legal integration, democratic accountability and inclusion. towards a cosmopolitan vision of global food governance. this article concludes that food safety should be better regulated and that the normative basis of global governance must shift to prioritise health protection – both individual and ecological. this requires us to recognise food safety as a shared human right, embedded in a framework of collective responsibility and legal accountability that transcends borders. cosmopolitanism provides the ethical and legal framework for this change. it encourages us to move beyond the limitations of state-based governance and articulate a framework in which everyone, regardless of geography or citizenship, has access to safe, nutritious, and ethically produced food. it also requires states and corporations to recognise the interdependencies of human, animal and environmental health, and to accept that the costs of inaction will be shared by all. the road ahead is complex. it involves legal reform, institutional redesign and cultural transformation. however, the convergence of health, environmental, and trade challenges presents a unique opportunity to transition from fragmented, reactive governance to an integrated, preventive, and ethically grounded model. this model would protect health not just as a policy aspiration, but as a fundamental global right. funding this research is conducted within the framework of the research group “challenges and opportunities of esg criteria in the business environment” (esgemp), as part of the interuniversity programme on the culture of lawfulness (4trust-cm, reference: phs 2024/phhum-65), funded by the community of madrid; and within the 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https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds48_e.htm (accessed: 07 july 2025). world trade organization appellate body (1998). european communities measures concerning meat and meat products (hormones), wt/ds26/ab/r and wt/ds48/ab/r, adopted 13 february 1998. available at: https://www.wto.org/ english/tratop_e/dispu_e/cases_e/ds26_e.htm(accessed: 10 july 2025). world trade organization appellate body (2002). european communities trade description of sardines, wt/ds231/ab/r, adopted 23 october 2002. available at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds231_e.htm (accessed: 10 july 2025). world trade organization (2003). wt/ds291, european communities measures affecting the approval and marketing of biotech products, ec – approval and marketing of biotech products. available at: https://www.wto.org/ english/tratop_e/dispu_e/cases_e/ds291_e.htm (accessed: 07 july 2025). world trade organization (2003). wt/ds292, european communities measures affecting the approval and marketing of biotech products, ec – approval and marketing of biotech products. available at: https://www.wto.org/ english/tratop_e/dispu_e/cases_e/ds292_e.htm (accessed: 07 july 2025). world trade organization (2003). wt/ds293, european communities measures affecting the approval and marketing of biotech products, ec – approval and marketing of biotech products. available at: https://www.wto.org/ english/tratop_e/dispu_e/cases_e/ds293_e.htm (accessed: 07 july 2025). received: 16th july 2025 accepted: 23rd september 2025 https://doi.org/10.17561/tahrj.v25.9797 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds48_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds231_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds291_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds291_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds292_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds292_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds293_e.htm https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds293_e.htm ia one health approach to food safety and the right to health in a global governance 1. introduction 2. cosmopolitanism and global human rights governance 3. the one health paradigm: a normative approach to interdependent rights 4. case study: wto-eu food safety tensions as human rights dilemmas 5. food safety and esg: toward a rights-based framework 6. conclusions funding references gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 1 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue tameshnie deane* abstract: despite the numerous advances that have been made in gender-based violence and femicide (gbvf) or violence against women and girls (vawg) at the national and international levels, gbvf continues at pandemic levels throughout the world. one of the main reasons for the high rates of gbvf is that there is currently no global legally binding treaty that comprehensively addresses vaw. the purpose of this paper is to consequently examine whether and how vawg is being acknowledged and regulated within the international human rights law, and more specifically within cedaw. it calls for an internationally binding treaty to effectively address vawg. keywords: cedaw and violence against women, femicide, gender-based violence, international human rights law, treaty on gender-based violence 1. introduction it is without a doubt that human rights violations are committed against both men and women. however, the impact of such violations differs according to the victim’s gender. research highlights that acts of violence against women and girls (hereinafter vawg) have at their core some characteristic that provides a basis for their classification as “gender-based violence” (hereinafter gbv) (simon-butler and mcsherry, 2019; vetten, 2000, p. 47). this means that such violence is “directly related to the unequal distribution of power and to the asymmetrical relationships that exist between men and women in society, which perpetuate the devaluation of women and their subordination to men” (rico, 1997, p. 5). what differentiates this type of violence from other forms of aggression or coercion is that it is violence that is directed against a woman because she is a woman or that affects women disproportionately (council of europe, 2012). accordingly for this article the terms “gender-based violence” and “violence against women” (hereinafter vaw) will be used interchangeably (council of europe, 2011, (hereinafter the istanbul convention), article 3).1 gbv and femicide (hereinafter gbvf) (harmes & russell, 2001; manjoo, 2014) which is the most extreme end to gender-related violence currently exists at pandemic * prof tameshnie deane, vice dean: law research and postgraduate studies. university of bloemfontein, free state, south africa. email: deanet@ufs.ac.za 1 in more recent legal documents like the istanbul convention, there are examples of the two terms being merged, and the term ‘gender-based violence against women’ is used. https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 2 levels around the world (rubenstein, 2018). global estimates suggest that an estimated 736 million women, almost one in three, have been subjected to physical and/or sexual intimate partner violence, non-partner sexual violence, or both at least once in their life (un women, 2023), and one in three women worldwide will experience gbv in their lifetime (world health organisation, 2023). in 2022 alone, approximately 48 800 women and girls globally were killed by their intimate partners or other family members (un women, 2023), and more than one billion women lack legal protections from domestic violence (rubenstein, 2018, p. 9). its harmful consequences endanger the life trajectories of women and girls in multiple ways (deane 2023a, deane 2023b).2 however, gbv does not only result in a wide range of negative consequences for the affected women and girls, but also for their children, families, and communities (deane, 2023a; tavares & wodon, 2017, p. 1). it is therefore understandable that gbv is widely considered a violation of women and girls fundamental human rights. the framing of gbv as a human rights violation highlights a crucial conceptual shift. it indicates an acknowledgement that women are not exposed to violence because of an in-born vulnerability or through mere coincidence. however, vawg is directly related to the deep-rooted discrimination and structural inequalities in society and which the state has an obligation to address. clearly preventing and addressing gbv requires a holistic approach and includes legislative, administrative, and institutional measures and reforms, including the eradication of gender stereotypes (un office of the high commissioner for human rights, 2024a, para 8). accordingly, the declaration on the elimination of violence against women (un general assembly, 1993 (hereinafter devaw) defines gbv as “any act of . . . violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering for women, including threats of such acts, coercion, or arbitrary deprivations of liberty, whether occurring in public or private life” (article 1). this type of violence recognises the deeply rooted social and cultural structures, norms and values that govern society, which is often perpetuated by a culture of denial and silence (heise, ellsberg & gottemoeller 1999, p. 1). gbv occurs in both the private and public spheres, disproportionately affecting women. indeed, through the characterisation of such violence as being “gender-based” the united nations (hereinafter un) has emphasised the necessity to understand this violence, as occurring within the context of women’s and girls’ subordinate status in society. femicide, “the killing of females by males because they are female” (russell, 2021, p. 1), is considered the most extreme consequence of gbv and is a term that bears a conceptual value as a tool that “specifically points to and politicises the sexist, patriarchal, misogynistic killing of women and girls by men” (russell, 2021, pp. 1-2). importantly the term “femicide” addresses not only the symptoms, which is the growing numbers of women murdered at the hands of men, but it also highlights the intersectional and 2 the rates of depression, anxiety disorders, unplanned pregnancies, hiv etc., are higher in women who have experienced violence. these women suffer from many other health problems that can last for years after the violence has ended. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 3 underlying causes rooted in structural dynamics of patriarchy which are embedded in various systems, like the institutions of the police, state, and international system as a whole. the un office on drugs and crime (hereinafter unodc) estimates in 2017 alone are as follows: the global rate of female homicide was approximately 2.3 per 100 000 of the female population, 87 000 women were intentionally killed, of which approximately 90 percent of suspects were male, women are mostly killed in the context of intimate or family relationships, the total number of female victims, six out of ten women (58 percent) were killed by a partner or male relative, one third were killed by a former or current partner and women were victims in 82 percent of all homicides carried out by intimate partners (un office on drugs and crime (unodc), 2018, pp. 1-2). the report also highlighted that femicide victims have previously experienced non-lethal gbv and the vast majority of femicide cases occur as the final phase of interpersonal or domestic violence. these persistent rates of gbvf are indeed concerning. there is currently a plethora of international and regional (un dag hammarskjöld library, 2024a; un dag hammarskjöld library, 2024b; meyersfeld, 2012) legal instruments that hold the promise for the attainment of women’s full and fundamental human rights. the persistence of violence in all its forms remain the greatest obstacle to achieving those rights. despite the rates of gbvf, to date there is no universal treaty that exists which deals exclusively with vawg, let alone femicide. however, some soft laws have been adopted that attempts to explicitly recognise vawg as a human rights issue. these include the un’s resolution on domestic violence in 1985 (un general assembly, 1985), and the 1993 devaw. for example, through its definition as articulated above, devaw acknowledges vawg across the board, and brings it out of the private sphere and into the public and international arena (charlesworth & chinkin, 2000, p. 235). of particular importance to this article, the most significant un instrument is the convention on the elimination of all forms of discrimination against women (un general assembly, 1979 (hereinafter cedaw). cedaw is hailed as the international bill of rights for women and considered the most prominent among the treaties that have been interpreted to address vaw (atrey, 2018, p. 859). cedaw provides a foundational framework that has been instrumental in raising awareness and understanding of women’s human rights and has led to real improvement in the human rights of women and girls.3 however, of growing concern is that neither cedaw nor any other international human rights treaty specifically identifies vaw in its text (tchoukou, 2023). it has been argued that this absence makes the fundamental nature of cedaw ineffective in addressing the critical issue of vag (rubenstein, 2018, p. 18). these limitations in addressing the growing rates of gbvf is argued to be evidence of the need for a binding international treaty that ensures the essential human rights of women and girls are fully realised (smith, 2014, p. 88; tchoukou, 2023). 3 for example, cedaw seeks to realise true factual and juridical equality for women, through the mechanisms of legal, social, cultural, economic, and political change and explicitly calls for “the practical realization of this principle,” placing a substantive obligation on state parties to achieve results, rather than mere commitments. cedaw article 2 (a). https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 4 in addition, the elimination by 2030 of all forms of vawg, and the achievement of equality are key targets adopted under the sustainable development goals (un general assembly, 2015 (hereinafter the sdgs). the overall objectives of the agenda 2030 cannot be attained if these human rights are not realised.4 in fact, the prevalence of various forms of violence against women and girls worldwide remains too high to be able to achieve the sdg targets under current trajectories. therefore, while existing instruments have laid important groundwork and pioneered promising standards and practices, there remains a failure to effectively address this pervasive global issue with a unified global effort. regarding the failure of cedaw to address gbvf effectively, it has been argued that while it was groundbreaking at the time of its adoption, “cedaw has not evolved in lockstep with evolving ideas on the nature of discrimination” (alkuwari, 2022, p. 225) and that “whereas the world has changed, the text of the treaty, for the most part, has not” (atrey, 2018, p. 859). consequently, a new solution in the form of a binding international treaty that specifically addresses gbv, including femicide is called for. 1.1. the purpose and aim of this study consequently, the purpose of this paper is to examine whether and how vaw is being acknowledged and regulated within the international human rights law (ihrl) framework, and more specifically within the un system and cedaw. this analysis is done with the aim of interrogating if and how vawg can be more effectively regulated and addressed within ihrl. the purpose of this paper arises from the genuine concerns around the challenges being faced by ihrls, where vawg remains one of the most immediate challenges requiring effective action. such immediate and effective action would include the adoption of a more binding international human rights treaty that can be efficiently utilised and enforced to specifically address all forms of gbv. it is important to acknowledge that even though cedaw does not specifically include vaw within its provisions, the importance of this treaty lies within its fundamental developments of ihrl and as its place as the most important legally binding human rights treaty for women. cedaw lays the foundation upon which the continued work for women’s rights has been developed, thereby making this instrument crucial for the purpose and aims of this paper. the main aim of this paper being to advocate for a separate binding international treaty on gbvf. 1.2. methodology and delimitations to achieve its aims, this paper has been prepared based on desktop research, which reviews information published in accredited journals and books. to include diverse evidence in achieving the purpose and aim, this paper will in relevant parts also refer 4 both cedaw and many of the sdgs, in its essence, are aimed towards promoting the duty and responsibility of countries to achieve gender equality and the empowerment of women and girls. at the heart of article 1 of cedaw therein lies the promise of a substantive approach to equality, which contemplates women’s distinctive position without comparing similarly situated females and males. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 5 to grey literature like newspapers, reports by governments, international organisations, research institutions and national and international non-governmental organisations (hereinafter ngos). in achieving its’ aims some delimitations are applied. firstly, the length of a research paper itself demands a limited and narrow focus. therefore, this review will focus on only a selection of relevant and authoritative sources. whilst this paper may in relevant parts refer to the three regional human rights courts, the scope of this paper will be mostly limited to the un system and cedaw. reference will be made to the regional instruments to gain support for the recommendation towards an international treaty for vawg. secondly, this paper is delimited with regards to discussing gbvf from the perspectives of ihrl. for example, although ihrl is applicable in times of armed conflict for example, no particular discussions related to gbv in wartime are included within this paper. furthermore, whilst noting that several factors related to gbv do exist within ihrl, it is important to mention that the intention is to discuss whether and in fact the un instrument in cedaw is an effective tool in combating and eliminating gbvf. lastly, it is acknowledged that whilst there may very well be alternative solutions to eliminating gbvf on a global level, the recommendation towards a specific international treaty on vawg is recognised as the most apt solution and best serves the purpose of this paper. 2. protection of the human rights of women under international law 2.1. universal declaration of human rights whilst early human rights laws enacted by the un did not specially mention vaw, they are still relevant. one of these laws include the 1948 universal declaration of human rights (un general assembly, 1948 (hereinafter udhr), which was not originally binding on member states. it has however received such wide acceptance as the framework of fundamental human rights principles that it is currently acknowledged as a binding expression of customary law and an authoritative interpretation of the foundational treaty of the un itself, the united nations charter (un, 1945). at the time of the adoption of the udhr there was a broad consensus that the rights contained therein should be translated into legal form as treaties, which would directly bind those states that agreed to their terms. this led to extended negotiations in the commission on human rights, a political body composed of state representatives, which until 20065 met annually in geneva to discuss a wide variety of human rights issues (un general assembly, 2006). 5 the commission has since been replaced by the human rights council, which meets three times a year. https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 6 2.2. the international convention on the elimination of all forms of racial discrimination due to the political imperatives at that time and which arose from the apartheid regime in south africa, the international convention on the elimination of all forms of racial discrimination (un general assembly, 1965 (hereinafter icerd) was the first treaty agreed to. icerd dealt with the specific phenomenon of racial discrimination (un office of the high commissioner for human rights, 2012, p. 5). in addition to defining racial discrimination in article 1, icerd sets out in detail state parties’ obligations to combat this scourge (icerd, articles 2-7). apart from requiring states to refrain from such acts, the icerd also requires a state to take appropriate measures against racial discrimination rooted in society, including the propagation of racist ideas advocated by groups and organisations (icerd, article 2). the icerd also sets out an extensive series of specific human rights in the i.e., civil, political, economic, social, and cultural spheres (icerd, article 5), and most of which are enumerated in the udhr. such rights are to be guaranteed without distinction on racial grounds. additionally, the icerd establishes as a basic right an effective remedy, whether through the courts or other institutions, against acts of racial discrimination (icerd, articles 11 and 14). the icerd, in part ii, requires all state parties to report periodically to the committee on the elimination of racial discrimination on the measures they have taken to give effect to the convention (icerd, articles 11-14). in its general recommendation no. 25 (2000) on gender-related dimensions of racial discrimination the committee on the elimination of racial discrimination, which oversees compliance with icerd, recognised the gender dimensions of racial discrimination and said it would “endeavour in its work to take into account gender factors or issues which may be interlinked with racial discrimination” (committee on the elimination of racial discrimination, 2000, p. 152). 2.3. international covenant on civil and political rights and the international covenant on economic, social and cultural rights following the adoption of the udhr two additional human rights treaties were adopted, the 1966 international covenant on civil and political rights (hereinafter iccpr) and the international covenant on economic, social and cultural rights (hereinafter icescr). the two covenants have a similar structure and some of their articles adopt the same, or very similar, wording. article 6 of the iccpr protects the right to life and the right to liberty and security of person (article 9). these provisions reaffirm article 3 of the udhr which states that “everyone has the right to life, liberty and security of person”. the iccpr also guarantees, among other rights, freedom from torture, freedom from slavery, equality before the law, freedom of movement, rights relating to family life and children and minority groups’ rights to their culture, religion, and language. the iccpr further upholds the right of both men and women to enjoy the civil and political rights in the covenant (article 3) and equal protection under the law (article 14). whilst these articles do not explicitly refer to vaw, through various general comments the human rights committee has addressed gbv in relation to several of https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 7 the iccpr’s provisions including in addressing states’ responsibility to eliminate and protect women from violence. one such example includes general comment no. 35 (un human rights committee (hrc) 2014), adopted in december of 2014, which specifically addresses state parties’ obligation to protect women from domestic violence and gbv (hrc, 2014, p. 9): “states parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury. for example, states parties must respond appropriately to patterns of violence against categories of victims such as intimidation of human rights defenders and journalists, retaliation against witnesses, violence against women, including domestic violence, the hazing of conscripts in the armed forces, violence against children, violence against persons on the basis of their sexual orientation or gender identity, and violence against persons with disabilities.” in addition, general comment no. 36, adopted in september of 2019, also addresses gbv as a deprivation of the right to life (hrc, 2019, p. 61): “any deprivation of life based on discrimination in law or in fact is ipso facto arbitrary in nature. femicide, which constitutes an extreme form of gender-based violence that is directed against girls and women, is a particularly grave form of assault on the right to life.” other general comments of significance which seek to address vaw includes general comment no. 31: the nature of the general legal obligation imposed on states parties to the covenant (un human rights committee, 2004), general comment no. 28: article 3 the equality of rights between men and women (un human rights committee, 2000), general comment no. 27: article 12 freedom of movement (un human rights committee 1999), general comment no. 19: protection of the family, the right to marriage and equality of the spouses (un human rights committee, 1990), general comment no. 17: rights of the child (un human rights committee, 1989) and general comment no. 16: the right to respect of privacy, family, home and correspondence, and protection of honour and reputation (un human rights committee, 1988). these general comments are however not legally binding. it acts as a guide to not only assist state parties to implement the treaties but can also be used to monitor and advocate for full treaty implementation, thus strengthening the enjoyment of specific rights by rights holders (keller & grover, 2012, p. 116). like the iccpr, the icescr, upholds many basic rights that implicitly obligate states to protect women from violence. for instance, the icescr upholds the right to the highest standard of physical and mental health (icescr, article 12). both covenants use the same wording to prohibit discrimination based on, inter alia, sex (icescr, article 2), as well as to ensure the equal right of men and women to the enjoyment of all rights contained in them (icescr, article 3). the icescr further guarantees, inter alia, the right to work, the right to form trade unions, rights relating to marriage, maternity and https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 8 child protection, the right to an adequate standard of living, the right to health, the right to education, and rights relating to culture and science. the provisions of the two covenants, as well as other human rights treaties discussed below, are legally binding on the states that ratify or accede to them. states that ratify these treaties periodically report to bodies of experts, which issue recommendations on the steps required to meet the obligations laid out in the treaties. however, unlike treaties, but like the general comments issued by the hrc, recommendations also have a non-binding status. the treaty-monitoring bodies do however provide authoritative interpretations of the treaties and, if states have agreed, they also consider individual complaints of alleged violations (un office of the high commissioner for human rights, 2012). in any case, another problematic aspect is the way in which the decisions about individual complaints of the treaty-monitoring bodies are received and the value that each state party gives to them in their domestic legislation. this raises doubts about their value as an effective mechanism. 2.4. convention against torture and other cruel, inhuman, or degrading treatment or punishment in 1984, the convention against torture and other cruel, inhuman, or degrading treatment or punishment (un general assembly, 1984 (hereinafter cat) was adopted to deal with torture and other ill-treatment. article 7 of the iccpr already banned torture and cruel, inhuman, or degrading treatment or punishment, but cat goes much further and develops a legal scheme aimed at both preventing and punishing these practices. after defining torture, cat makes it clear that no circumstances of any kind, including orders from a superior, can justify an act of torture. whilst cat does not specifically address vaw, the committee against torture, which monitors cat, seeks to redress this omission by regularly addressing issues of vawg (sveaass & gaer, 2022). this is done to ensure that attempts are being made “to update traditional notions of torture to their contemporary setting” (edwards, 2006, pp. 350-51). this is crucial as cat is the only legally binding instrument at the international level that is concerned exclusively with the eradication of torture or other ill-treatment. it consequently is vital that cat covers acts of vaw when it amounts to torture or other ill-treatment. accordingly, the committee against torture addresses vaw through for example, clarifying states responsibilities for torture by non-state actors. historically, the common understanding of torture was that it referred to violence and humiliation directly at the hands of state actors (wilson, 2018, p. 2). while cat had addressed vaw at the hands of state officials, it was only in 2001 that the committee for the first-time expressed concerns about trafficking and domestic violence in its concluding observations and recommendations (un committee against torture, 2001a & 2001b). at that time, various developments in the fight against vaw broadened the scope of human rights law to issues of concern to women and girls including rape and other forms of sexual abuse, trafficking and domestic violence which resulted in a deconstruction of the public and private divide (wilson, 2018, p. 2). https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 9 in january 2008 a major development through the publication of general comment no. 2 (hereinafter gc 2) was realised (un committee against torture, 2008). gc 2 clarified that where state authorities fail to exercise due diligence to prevent, investigate, prosecute, and punish non-state actors, “its officials should be considered as authors, complicit or otherwise responsible under the convention for consenting to or acquiescing in such impermissible acts” (paragraph 18). the comment goes further and explains that “the state’s indifference or inaction provides a form of encouragement and/ or de facto permission” to non-state actors. since gc 2, cat has increasingly addressed vaw at the hands of private actors within the scope of its work. in reviewing country compliance with cat, both the committee and the special rapporteur on torture routinely request information on the prevalence of vaw in countries around the world (sveaass & gaer, 2022, p. 183). the special rapporteur on torture published a report in 2019 on the relevance of the prohibition of torture to the context of domestic violence (un, 2019). state parties are therefore obligated to prohibit, prevent, and redress torture and ill treatment in a wide variety of contexts in which it has control as well as contexts where the failure of the state to intervene encourages and enhances the danger of privately inflicted harm (un committee against torture, 2008). significantly, cat notes the applicability of the due diligence principle “to states parties’ failure to prevent and protect victims from gbv, such as rape, domestic violence, female genital mutilation, and trafficking” (un committee against torture, 2008, para 18). this is specifically significant as other international and regional bodies have gone on to apply the due diligence principle. most notably is cedaw, specifically its general recommendation no. 19 (un cedaw, 1993 (hereinafter gr 19), para 9) and more extensively in general recommendation no. 35 on gbv (un general assembly, 2017, (hereinafter gr 35), updating gr 19. additionally, the inter-american court of human rights (hereinafter iacrthr) has applied the principle in the case of velásquez rodríguez v. honduras (case 7920, inter-am. c.h.r. 35, oea/ser.l./v./iii.19, 19 november 2015, para 79), in gonzález et al. (“cotton field”) v. mexico, (iacrthr, 16 november 2009), rosendo cantú et al v mexico, preliminary objections, merits, reparations and costs, judgment of 31 august 2010), and in lópez soto v. venezuela (iacrthr, 14 may 2019). the european court of human rights has similarly developed a body of jurisprudence relating to the positive obligations of effectively preventing, investigating, prosecuting, punishing, and providing remedies for acts of violence perpetrated by state and non-state actors. some examples include opuz v. turkey (app no. 33401/02, 9 july 2009, paras 185-87), talpis v. italy (application no. 41237/14, 21 march 2017) and osman v. uk (app no 23452/94, 28 october 1998, para. 116). 2.5. convention on the rights of the child the convention on the rights of the child (un general assembly, 1989 (hereinafter crc) which entered into force in 1990 and defines a child as anyone below the age of eighteen. through the crc, girls are protected from all forms of violence, such as sexual abuse and trafficking (crc, article 19). the treaty also protects girls from harmful practices such as child marriage and female genital mutilation. the committee https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 10 on the rights of the child is tasked with interpreting the crc. states parties are obliged to submit reports to the committee describing the measures taken to implement the crc. 2.6. optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography in 2002, the optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography (un general assembly, 2001 (hereinafter op-crc-sc) entered into force. the op-crc-sc addresses acts that constitute trafficking in children for the purpose of sexual exploitation (article 2) and calls upon state parties to protect the rights and interests of child victims (article 8) through prosecution and support services and educational programmes (article 10). states parties to the op-crc-sc are also obliged to submit reports to the committee on the rights of the child outlining the measures taken to implement the protocol (article 12). 2.7. international convention on the protection of the rights of all migrant workers and members of their families the international convention on the protection of the rights of all migrant workers and members of their families entered into force on 1 july 2003 (un general assembly, 1990 (hereinafter icrmw). the icrmw guarantees rights to migrant workers without distinction based on several protected grounds, including sex (article 7). the committee on migrant workers, tasked with interpreting the icrmw, monitors state parties compliance with the convention. 2.8. convention on the rights of persons with disabilities in addition, the convention on the rights of persons with disabilities (un general assembly, 2007 (hereinafter crpd) recognises the multiple discrimination that women with disabilities are subjected to and requires state parties to address this by taking “all appropriate measures to ensure the full development, advancement and empowerment of women” in the enjoyment of their human rights (crpd, article 6). it is quite clear that none of these treaties have been designed to deal specifically with vaw or gbv. the issues around gbv are interpreted into the existing provisions through comments and recommendations, which may not have the same authority as specific treaty provisions. 2.9. cedaw the most important development for women in international law, has been the adoption of cedaw and the creation of the cedaw committee to oversee its implementation. cedaw’s preamble recognises that despite the existence of other instruments, women still do not enjoy equal rights with men. it goes on to assert that vaw is a form of discrimination, directed towards a woman because she is a woman or that affects women disproportionately. this violence seriously inhibits women’s ability to https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 11 enjoy rights and freedoms on a basis of equality with men. the convention, in article 1, articulates the nature and meaning of sex-based discrimination by defining discrimination as “… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. such discrimination includes any differential treatment based on sex which prevents women from exercising their fundamental human rights and freedoms. state parties are further obligated to eliminate discrimination through appropriate legislation prohibiting discrimination, ensuring the legal protection of women’s rights, refraining from discriminatory actions, protecting women against discrimination by any person, organisation, or enterprise, and modifying or abolishing discriminatory legislation, regulations, and penal provisions (article 2). states are not only obligated to address discriminatory laws, but also practices, traditions, and customs, as well as discrimination against women by private actors (article 5). article 5 establishes that in addition to recognising women’s legal equality and promoting their de facto equality, states should also strive to eliminate the socio-cultural norms and patterns that perpetuate harmful gender stereotypes and strive to create a society that promotes the realisation of women’s full rights. cedaw thus reaches beyond the narrow concept of formal equality and aims for equality of opportunity and equality of outcome, substantive equality. in achieving this goal, states may utilise temporary special measures until such time as the objectives of equality of opportunity and treatment have been achieved (article 4). however, like the earlier human rights mechanisms, cedaw does not explicitly mention vaw. cedaw’s primary focus was in ensuring that state parties “condemn discrimination against women in all its forms” (article 2). the recognition by the un special rapporteur, manjoo, that vaw is not the root of the problem but occurring because of other forms of discrimination (manjoo, 2011) acknowledged vaw or gbv as the most extreme manifestation of discrimination. this international recognition and acknowledgement led to the adoption of gr 19 by the cedaw committee (un cedaw, 1993). notably, gr 19 was a critical precursor to the recognition of vaw as a serious human rights issue at the 1993 vienna world conference. this conference and the subsequent adoption of the vienna declaration and programme of action (un general assembly, 1993b (hereinafter the vienna declaration) is widely regarded as a watershed moment for women’s rights. it was the first time that women’s rights were universally accepted as human rights and paved the way for the growing integration of women’s rights and the gender perspective into human rights norms and practice (priddy, 2014, p. 3). the then human rights commission (now the human rights council) also condemned gbv for the first time in 1994 and in the same year appointed a special rapporteur on vaw, its causes and consequences (un human rights council, 1994). the special rapporteur is tasked with ensuring that the issues around gbv is integrated into the un human rights framework and its mechanisms and seeks to achieve this through providing concluding remarks and recommendations (un office of the high commissioner for human rights, 2024b, para 1). https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 12 unlike previous recommendations on vaw, like general recommendation no. 12 on vaw, (un cedaw committee, 1989), gr 19 defined vaw and targeted its root causes within the inequality framework. it went on to identify all acts of gbv as forms of discrimination. gr 19 clarified that discrimination against women, as defined in article 1 of the convention, included gbv, that is “violence which is directed against a woman because she is a woman or that affects women disproportionately”, and consequently constituted a violation of their human rights. it includes acts that “inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion, and other deprivations of liberty. gender-based violence may breach specific provisions of the convention, regardless of whether those provisions expressly mention violence” (gr 19, para 6). gr 19 also specifically addresses domestic violence as a form of discrimination against women, stating that “family violence is one of the most insidious forms of violence against women” and includes “battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes” the lack of economic independence, the abrogation of their family responsibilities by men, adversely impacting women’s health and their ability to participate in family and public life on a basis of equality (gr 19, para 23). as an update to gr 19, the cedaw committee, after 25 years, adopted general recommendation no. 35 (un general assembly, 2017, (hereinafter gr 35) in 2017. gr 35 builds upon and reinforces gr 19 as well as an understanding of the challenges and appropriate responses it had expressed through its concluding observations to states’ reports, individual communications, and inquiries (chinkin, 2020, p. 2). gr 35 was adopted at a time when there was a resistance towards women’s rights concerns which lead to the erosion of frameworks developed to eliminate gender-based discrimination (priddy, 2014, p. 10). in justifying the need for yet another recommendation in gr 35, the cedaw committees intention was to provide states parties with further guidance aimed at accelerating the elimination of gbv (gr 35, para 3). the committee noted that current legislation addressing gbv remains “non-existent, inadequate and/or poorly implemented” (gr 35, para 7) and that gbv remains socially entrenched as a mechanism “by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated” (gr 35, para 10).6 the high rates of gbv around the world saw the incidences of such violence become more persistent and occurring “in a continuum of multiple, interrelated and recurring forms, in a range of settings, from private to public, including technology mediated settings and in the contemporary globalized world it transcends national boundaries” (gr 35, para 6). the importance of gr 35 is that it elaborates on the gender-based nature of this form of violence, by building on the work of the committee and other international human rights mechanisms, as well as developments at national, regional (istanbul convention; the inter-american convention on the prevention, punishment and eradication of violence against women (organization of american states (oas), 1994 (hereinafter convention of belém do pará); protocol to the african charter on human and peoples’ rights on the rights of women in africa (african union, 2003 (hereinafter the maputo protocol), 6 this echoes the language in the preamble to devaw. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 13 articles 1(j), 3(4), 4(2), 5, 11, 12(d), 13(c), 20, 22(b), 23(b) and international levels, most importantly within the european context and the jurisprudence of the european court of human rights. for example, in 1999, the optional protocol to the convention on the elimination of all forms of discrimination against women was adopted and entered into force in 2000 (un general assembly, 1999 (hereinafter the optional protocol). article 2 of the optional protocol provides individuals or groups from state parties to the protocol with an opportunity to raise complaints to the committee about violations of any rights contained in cedaw. the optional protocol thus enables the committee to determine these claims and to make both specific recommendations for redress to the individual complainant and more general ones directed at addressing wider societal issues. article 8 further invests the committee with the powers to conduct an inquiry into grave or systemic violations of human rights set out in cedaw. consequently, in manila, philippines, for example, inquiries have been made regarding women’s access to health and reproductive services (un cedaw committee, 2017), in ciudad juárez, mexico vaw, more specifically femicide/feminicide concerns have been raised (un cedaw committee, 2005), whilst enquires have been made about the rights of indigenous women in canada (un cedaw committee, 2015b), the abduction of women and girls for marital purposes in kyrgyzstan (un cedaw committee, 2018b) and access to abortion in northern ireland, uk (un cedaw committee, 2018a). these enquires identified manifestations of gbv in a specific factual context. the committee accordingly made recommendations for its elimination and for reparations for victims, their families and, where appropriate, the community. in some cases, for example in ángela gonzález carreño v spain (2012) cedaw/c/58/d/47/2012), recommendations made by the cedaw committee for redress have led to important results (un cedaw committee, 2014a). for instance, the spanish supreme court in july 2018 held that the recommendations made by the committee under the optional protocol were binding on the domestic courts (un office of the high commissioner for human rights, 2018). however, recently the spanish supreme court’s judgment 786/2023 of 13 june 2023 has affirmed, regarding a cat decision which pointed out the violation by spain of articles 1, 12, 13 and 16 of cat, that these articles, 1, 12, 13 and 16, are mere legislative policy recommendations in a case of torture against a woman detainee. the importance and significance of jurisprudence and research reports therefore cannot and should not be underestimated, but their internal consideration by states is not yet definitively established. in gr 35, the term “gender-based violence against women” is consequently used as a more precise term that makes explicit the gendered causes and impacts of the violence. the term further strengthens the understanding of the violence as a social rather than an individual problem, requiring comprehensive responses, beyond those to specific events, individual perpetrators, and victims/survivors. for various reasons states obligations when drafting and complying with human rights instruments on specifically vaw has been met with reservations (amnesty international, 2004; un cedaw committee, 1997). these reservations have impacted https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 14 responses to vaw. in response thereto, one of the most important provisions of the updated gr 35 is that it now describes in detail the general obligations of states parties under cedaw. states parties have an obligation to prevent, punish and provide reparation, as the parties have the obligation to eliminate discrimination against women by all appropriate means and without delay (part iii). states are responsible for violence that results from their own actions and omissions, as well as those of non-state actors, where the state has not implemented measures to tackle vaw with due diligence (part iii). the principle of due diligence is crucial as it provides the missing link between human rights obligations and acts of private persons. where a state party fails to take all appropriate measures to prevent acts of gbv, fail to investigate, prosecute, and punish, and provide reparation to victims, these are considered serious violations of the due diligence principle. gr 35 recommends specific measures that may be required to address violence targeted against women within some such categories, for instance to repeal laws that allow for medical procedures on women with disabilities without their informed consent, or that criminalise abortion, sex work, or being lesbian, bisexual, or transgender (part a, 29(i). it also seeks the repeal of laws deemed protective, including guardianship laws that restrict the ability of women with disabilities from testifying in court, or so-called ‘protective custody’ (part a, 29 (iii). gr 35 is thus “rich in specificities as well as capturing generalities” in that states are to examine ‘gender-neutral laws and policies to ensure they do not create or perpetuate existing inequalities’ and to take appropriate remedial action where this is the case (chinkin, 2017, para 4). it is also important to note that gr 35 effectively amplifies state obligations as set out in gr 28 (un cedaw committee, 2010b (hereinafter gr 28). in the gr 28 on the core obligations of states parties under article 2 of cedaw, it is indicated that the obligations of states are to respect, protect and fulfil women’s rights to non-discrimination and the enjoyment of de jure and de facto equality. the scope of those obligations in relation to gbv occurring in particular contexts is addressed in gr 28 and other general recommendations, including in general recommendation no. 26 (un cedaw committee, 2008) on women migrant workers; general recommendation no. 27 (un cedaw committee, 2010a) on older women and the protection of their human rights; general recommendation no. 30 (2013) on women in conflict prevention, conflict and post-conflict situations (un cedaw committee, 2013); joint general recommendation no. 31 of the committee on the elimination of discrimination against women/general comment no. 18 of the committee on the rights of the child on harmful practices (un cedaw committee, 2014c); general recommendation no. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (un cedaw committee, 2014b); general recommendation no. 33 (un cedaw committee, 2015c) on women’s access to justice; and general recommendation no. 34 on the rights of rural women (un cedaw committee, 2016).7 7 further details on the relevant elements of the general recommendations referred to herein may be found in those recommendations. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 15 the cedaw committees’ approach towards the realisation of gr 35 emphasises how committed the committee has been towards addressing vawg. however, despite this gbv is still at pandemic levels and consequently raises concerns on whether gr 35 is sufficient or is a different type of instrument necessary to address the continued vaw. to answer this concern the following discussion will firstly analyse some of the most significant contributions of gr 35 and then go on to look at its limitations. gr 35 reiterates what are considered the foremost barriers to the elimination of vaw and effective state responses, inter alia culture, tradition, religion, and fundamentalist ideologies (paras 7, 31b). the committee emphatically recognises the structural causes of gbv notably ‘the ideology of men’s entitlement and privilege over women’ (gr 35, para 19) and the harmful effects of prejudices and gender stereotyping. gr 35 also refers to factors that are less often remarked upon, like reduction in public spending, austerity economics and extraterritorial corporate behaviour. it also recognises the adverse impact of aspects of contemporary life, including inter alia environmental degradation, militarisation, displacement, globalisation of economic activities, foreign occupation, armed conflict, violent extremism, and terrorism (gr 35, para 14) and these recognitions have been entrenched through various opinions (un cedaw committee, 2010c; un cedaw committee, 2011). this approach by the committee recognises the complicity of the global north in the ‘pervasiveness of gender-based violence against women’ and the concomitant culture of impunity (gr 35, para 7). furthermore, states are required to take measures for the advancement of women in ‘all fields, in particular in the political, social, economic, and cultural fields’ (cedaw, article 3). gr 35 elaborates on this considerably by recognising that vaw occurs in ‘all spaces and spheres of human interaction’ including in the ‘family, community, public spaces, workplace, leisure, politics, sport, health services, educational settings, and their redefinition through technology-mediated environments … the internet and digital spaces’ (gr 35, para 20). this broad scope is welcome as it implicates both state and non-state actors and clearly sets out the responsibility of states for the acts or omissions of each. the committee also importantly acknowledges that the prohibition of gbv “has evolved into a principle of customary international law”, a recognition wherein gr 19 was the catalyst for (gr 35, para 2). while gr 19 lists multiple manifestations of vaw, it was neglectful of the diversity of women. cedaw itself does not explicitly address intersectional discrimination. gr 35 corrects this and considerably expands on the multiple and intersecting forms of violence women experience. the cedaw committee refers to its own practice and accumulated knowledge on harmful intersections, listing not only the most recognised grounds of intersectional discrimination (such as ethnicity), but also specific circumstances which might compound the violence (e.g. presence of armed conflict, being an asylum seeker or a human rights defender) (nousiainen, 2017, para 7). intersectionality is a theme throughout gr 35 that reinforces inclusivity and builds on this by recognising that ‘gender-based violence may affect some women to different degrees or in different ways’ and, accordingly, different responses must be developed. the catalogue of affecting factors has also been considerably extended (gr https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 16 35, para 12). gr 35 also refers to recommendations on ‘harmful practices’ (such as ‘honour killings’) and requires a gender sensitive approach to the prohibition of torture, and internet-mediated forms of vaw, which have thus far received little attention by human rights bodies. one of the major limitations is that despite gr 35 containing detailed guidance to states parties on how they should address the issue of gbv, such an approach has already been tried and tested, with varying results. if one were to look at the multitude of documents issued by the un that is relevant to vaw some of the resolutions adopted by the un general assembly include devaw, numerous resolutions by the commission on human rights (un women, 2007; un women, 2020b) and resolutions by the human rights council (2008, 2009, 2010). in addition, vaw was addressed in the vienna declaration, in various reports by the different un special rapporteur on vaw, its causes and consequences since its inception in 1994 (un human rights special procedures, 2022) and the beijing declaration and platform for action (un, 1995 (hereinafter beijing declaration) which contains various detailed recommendations on the measures which states should adopt to address vaw. the cedaw committee itself has issued several concluding observations (un cedaw committee, 2009; mcquigg, 2018, chinkin, 2020) relevant to vaw in relation to the periodic reports submitted by states parties, and has also made recommendations dealing with communications submitted under the individual complaint’s procedure found in the optional protocol to cedaw. gr 35 effectively collates and distils the key elements of the conclusions and recommendations made by the cedaw committee and condenses and includes these into one document, without having much impact on the rates of gbvf. whilst the situation of women has improved greatly over the years, the continued rates of gbvf has resulted in the current un special rapporteur on vaw, dubravka šimonović, calling on stakeholders to make submissions on whether a separate legally binding treaty on vaw with a separate monitoring body should be adopted (un, 2016). in what can be deemed support for such an approach, the cedaw committee itself has stated that “a new instrument and its new monitoring body would certainly increase the burden of states parties and reinforce the trend of fragmentation’ (un office of the high commissioner for human rights, 2016, p. 2). whilst many were opposed to the adoption of yet another instrument on vaw others argued strongly for it (un general assembly, 2017). one of the main arguments for advancing the need for a specific treaty dealing with gbv is that neither cedaw nor any other un treaty specifically references gbv and whilst gr 35 does cover a wide range of acts that could be considered as vaw or interpreted as such, it is optional. an international treaty on the other hand would be legally binding. gr 35, like gr 19 and its other general recommendations remain nonbinding interpretations of cedaw’s obligations. it has been said that ‘interpretation is at best a corrective and indirect mechanism to fix the errors of the original human rights framework’ (edwards, 2013, p. 338). the general recommendations therefore cannot make up for an absence of binding obligations regarding gbvf concerns. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 17 another concern is that even though vaw is now accepted as constituting a form of discrimination against women (opuz v turkey (2009) application no 33401/02, merits and just satisfaction, 9 june 2009), cedaw remains a treaty whose focus is on discrimination. for example, rape has been recognised as a crime against humanity and a war crime in international criminal law (un general assembly, 1998 (hereinafter the rome statute), articles 7 (1)(g), 8(b)(xxii), 6(b)), but rape and battery are still listed as discrimination in gr 19. regarding the specific issue of femicide, cedaw’s framework response to violence does not explicitly recognise acts of femicide as serious human rights issues. indeed, the effectiveness in cedaw in addressing gbvf is that it provides a rather roundabout answer to femicide (nadji, 2015, p. 342). manjoo succinctly states the problem as the following: “the functioning of the (cedaw) committee regarding violence against women is to try and fit this pervasive human rights violation under the discrimination label, and to then find ways to justify the committee’s jurisdiction by using other provisions in the cedaw. when it receives a complaint, or when it interrogates the state parties’ reports, it does what i call jurisdictional gymnastics to address the issue of violence against women. it has to ask questions such as: is violence against women discrimination? is the violence due to stereotyping? is it due to family relations?” (nadji, 2015, p. 343). this rather roundabout approach requires identifying underlying stereotypes and the placing of the violence within a framework of “discrimination” first. this focus on discrimination deters from the severity of the physical and mental harm inherent in gbvf. since cedaw’s focus is on discrimination and placing acts of violence within a discrimination framework it dilutes the seriousness inherent in acts of vawg, impacting its rates and how it is addressed on a national and international level. it can therefore be argued that this inadequate focus has created an urgent need that must be filled by an internationally binding treaty on vaw. the adoption of a un treaty on vaw would provide a more coherent and straightforward approach to addressing gbv as it could remove the need to strictly adhere to a discrimination framework. such an approach would go a long way towards rectifying the omission of gbvf within the ihrl treaty framework and assist to reinforce the statements made by the cedaw committee and the other un human rights bodies on vaw. in addition, a global treaty is a necessity for states to be held accountable as regards their responses to vaw (manjoo, 2014, para 68). additionally, in her report of may 2014 manjoo further stated that “despite the existence of interpretative guidelines and monitoring by human rights treaty bodies…the limitations of large and varied mandates, coupled with time constraints when examining state party reports, result in insufficient interrogation concerning the information relating to vaw, its causes and consequences, and insufficient assessment of responses” (manjoo, https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 18 2014, para 51). the cedaw committee has made excellent efforts and progress in addressing vaw. they however work under pressurised conditions and have a relatively short time to consider every country’s reports. the fact that vaw is only one of a multitude of issues that needs to be addressed by the committee means that they are unable to devote the necessary time and consideration required to effectively address the gbv pandemic. clearly an advantage of a global treaty on violence would enable the monitoring body of such an instrument to focus exclusively and comprehensively on vaw. recommendations to states on this issue can then be made to every state in a more detailed manner. 3. un resolutions on vaw both the un human rights council and the general assembly have also addressed vaw through various resolutions (un women, 2012; un women, 2022). pronouncements by these bodies, known as charter-based mechanisms, express strong aspirations but, by their nature, are unenforceable. unlike the human rights treaties discussed above, which national governments ratify, and agree to be bound by, no process exists for governments to submit to the authority of charter-based mechanisms. however, and although such resolutions do not have binding legal authority, they are influential and sets international standards and best practices. in this regards the un has stated that while “the assembly is empowered to make only non-binding recommendations to states on international issues within its competence, it has, nonetheless, initiated actions, political, economic, humanitarian, social and legal, which have affected the lives of millions of people throughout the world” (un, 2015, para 3). one of the most important resolutions on vaw is devaw. adopted by the un general assembly in 1993, devaw was the first international instrument to explicitly address vaw. it establishes the most comprehensive set of standards in international law for the protection of women against sexual and gbv. devaw recognises vaw as “an obstacle to the achievement of equality” and a “manifestation of historically unequal power relations between men and women,” as well as a violation of fundamental freedoms including the prohibition against torture (preamble). its definition of violence as articulated above is one of the most accepted standards for the definition of gbv. devaw not only declares that state actors should refrain from engaging in vaw, but also asserts that states should take affirmative measures to prevent and punish violence committed by public and private actors alike and establish support networks to care for victims of gbv (article 4). in 2004, the general assembly also specifically addressed domestic violence in resolution 58/147, entitled the elimination of domestic violence against women (un general assembly, 2004 (hereinafter edvaw). in this important resolution, the general assembly recognised that domestic violence is a human rights issue with serious immediate and long-term implications. it consequently condemned all forms of vawg, including domestic violence in its various forms (preamble) and called for an elimination of violence within the family (para. 1). the general assembly also included in the resolution several specific actions that states should take to eliminate domestic violence, including strengthening legislation, providing training to public officers, improving police response, and creating educational campaigns (para 7). https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 19 3.1. beijing declaration as women increasingly demanded that violence be recognised as a human rights abuse, the mid-1990s saw a proliferation of charter-based mechanisms addressing vaw. of specific importance is the 1995 fourth world conference on women in beijing, which converged women’s rights with the broader discussion of human rights and the two became firmly entwined (clinton, 1995). vaw was identified as a key human rights priority, and the beijing declaration was consequently adopted. it reaffirms the fundamental principal that the rights of women and girls are an “inalienable, integral and indivisible part of universal human rights” (beijing declaration, chapter 1, para 9) and proceeds to set the agenda for states to identify and eradicate gbv. the beijing declaration requires all governments to address several critical areas of concern, including addressing vaw, by developing strategies or national plans of action to implement the declaration locally. the commission on the status of women (csw) (un women, 2020) is a commission of the economic and social council (ecosoc) and is tasked with promoting gender equality, combatting vaw on a global scale and ensuring the proper implementation of the declaration. ecosoc’s most recent resolution (un economic and social council, 2020) reaffirmed the importance of the beijing declaration and the csw’s commitment to continue working toward its full implementation worldwide. furthermore, the beijing declaration is a crucial blueprint for achieving various goals of the sdgs including addressing global challenges like poverty, climate change, and inequality, as well as the critical goal 5 of ensuring equal education for girls and combatting vaw. therefore, although not legally binding, the beijing declaration remains an integral document in the global fight for women’s rights. these charter-based mechanisms, resolutions, special procedures, and action plans have brought attention to important issues regarding vaw. it provides an important source of international law and has a soft power that may be persuasive in interpreting treaties, but they are not enforceable like treaties. these charter-based mechanisms, resolutions and plans inform countries of the need to combat vaw, but the countries can never be held accountable. accordingly, these mechanisms cannot be considered a suitable substitute for a legally binding treaty on vaw. however, its contribution can form the basis for informing the development of a binding treaty on gbv. 4. regional frameworks 4.1. convention of belém do pará regional treaties contribute to the current progress towards an effective international response to vaw. various regional instruments that complement the international legal and policy framework include for example convention of belém do pará, the first binding treaty to specifically address the issue of vaw. considered one of the strongest regional treaties it requires state parties to apply due diligence and to not only refrain from violence themselves but to prevent, investigate, and impose penalties for such violence (convention of belém do pará, article 7(b). accordingly, the requirement https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 20 of due diligence means that a state can be found liable for an act, if it fails to prevent the violation and respond appropriately, even when the act was not perpetrated by the state (manjoo, 2014). states are also obliged to establish “fair and effective legal procedures for women who have been subjected to violence” (convention of belém do pará, article 7(f) as well as “the necessary legal and administrative mechanisms to ensure women subjected to violence have effective access to restitution, reparations or other just and effective remedies” (convention of belém do pará, article 9(g). they are required to constantly update domestic laws to prevent and punish vaw (convention of belém do pará, article 1). the convention of belém do pará defines vaw as “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere” (article 1). crucially, this definition defines the right to be free from violence as including the right to be free from all forms of discrimination. importantly, this differs from cedaw as cedaw characterises violence as a form of discrimination. the right to be free from violence incorporates the right to be valued and educated free of stereotyped patterns of behaviour, and to be free from social and cultural practices based on concepts of inferiority and subordination (convention of belém do pará, article 6). regarding the monitoring mechanisms, firstly, states parties must file reports with the inter-american commission of women (convention of belém do pará, article 10)8 and secondly individuals, groups, and ngos of the oas can petition the interamerican commission on human rights with complaints of violations of the convention by states parties (convention of belém do pará, article 12). the commission decisions are not binding on states parties, but the commission can refer certain cases to the iacrthr, which can issue binding decisions (un high commissioner for refugees, 2024).9 in 2004, the oas established the follow-up mechanism to the belém do pará convention (organization of american states, 2004 (hereinafter mesecvi) which aims to promote the implementation of the convention, and to establish a system of technical cooperation, thereby strengthening the convention of belém do pará (mesecvi, article 1). mesecvi’s creation is evidence of states parties’ commitment to accountability, including building expertise and capacity among themselves. 4.2. istanbul convention the 2011 istanbul convention is a leading regional treaty that significantly contributes towards the developing legal frameworks of vaw. the istanbul convention 8 these reports include information on measures states parties have adopted in accordance with the convention, difficulties they have had, and factors that contribute to vaw. 9 the iacrthr is one of three regional human rights tribunals, together with the european court of human rights and the african court of human and peoples’ rights. it is an autonomous legal institution whose objective is to interpret and apply the american convention. the iacrthr exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 21 states that “‘violence against women’ is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life” (article 3). this definition builds on the due diligence obligations and the models of the european and iacrthr’s (organization of american states & council of europe, 2014). like the convention of belém do pará, the istanbul convention has an established monitoring mechanism in the group of experts on action against violence against women and domestic violence (grevio) (organization of american states & council of europe, 2014). notably, states parties are required to submit responses to questionnaires about their legislative progress. this process provides a forum to coordinate efforts to combat vaw (organization of american states & council of europe, 2014). the oas and the council of europe have developed the strongest regional treaties with effective enforcement mechanisms10 devoted exclusively to combating vaw. these treaties provide a comprehensive guide for treaty members’ actions through concrete recommendations that details implementation standards and allows for the development of skills and resources to achieve the goals of the treaties. however, the convention of belém do pará is binding and specific within the americas and the istanbul convention, despite being lauded internationally, was specifically drafted for the european community. these treaties may not be relevant to other continents and are therefore limited in its effect, enforcement, and implementation. since these treaties do provide a benchmark for addressing vaw, it can be utilised as exemplars for an international treaty on gbv. 4.3. maputo protocol furthermore, the maputo protocol, was adopted by the african union in 2003 and contains provisions relevant to vaw for african women. the maputo protocol states that explicit efforts to end vaw are aligned with a woman’s right to dignity and security (maputo protocol, article 3, para 4) and that states are obliged to report to the african union on the efforts made to identify legislative and other measures taken to implement the rights afforded women under this protocol (article 26). the maputo protocol is however considered “weak” (rubenstein, 2018, p. 30) due its inconsistent reporting system (asuagbor, 2016, p. 3) and the african commission’s inability to ensure its enforcement (rubenstein, 2018, p. 31). this failure on the part of the african union to ensure effective enforcement and timely reporting standards is crucial. where there is an absence of strong enforcement mechanisms, implementation guidelines and tools to develop and strengthen efforts 10 implementation of the istanbul convention is still new, making its effectiveness difficult to evaluate. nonetheless, the strong language of the treaty and its monitoring mechanism make it a prime model for an international convention on vaw. https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 22 to effectively combat gbv, initiatives toward the elimination thereof will fall short. significantly not all regions have treaties on gbv, for example, the middle east and asia. the non-binding nature of these regional treaties to other regions, the gaps in implementation and inefficiencies in reporting identified in the maputo protocol together with the absence of treaties on gbv in the middle east and asia, indicates an urgent need for the uniform protection of women on a wide scale. this argument is strengthened by the inadequacies found in the only international treaty dedicated to women’s rights, cedaw. 5. concluding remarks despite the numerous advances that have been made in gbv, the various policy, legal and other measures adopted at the national and international levels, gbv continues to be widespread and present in all regions and countries, in familiar and new forms. one of the main reasons for the high rates of gbv is that there is currently no global legally binding treaty that comprehensively addresses gbv. cedaw as the international bill of rights for women, provides some concrete protections for women and girls. its emphasis on a discrimination framework and failures to explicitly address key topics, including rape, assault, or even violence, is a major omission in the fight against gbvf. the cedaw committee in attempting to complement cedaw and address these oversights and failures issued various general recommendations including grs 19 and 35. these recommendations, specifically gr 35 is indeed a truly progressive development in advancing gbv. however, the general recommendations are not binding and serve as soft laws, leading to optional ratification and implementation by countries. such an approach does not serve the agenda for the elimination of gbvf, and neither will it assist in achieving the developmental goals by 2030. it is further noted that gr 35 is a vital reminder of the importance of human rights in all policies and practices directed towards advancing international agendas, specifically the achievement of the sdgs. to achieve the sdgs, specifically goal 5, by 2030, countries need to accelerate their efforts in ending discrimination and violence in all its forms. they require the necessary incentive to be obligated to report and answer on continued violations relating to vaw. it is argued that a separate legally binding treaty on vaw will go a long way towards achieving such goals. within the context of regional systems of human rights protection for women, there are several legally binding provisions on gbv. for example, the istanbul convention, the convention of belém do pará, and the maputo protocol. despite the strength of the regional treaties in the americas and europe, the maputo protocol applicable for african women in the african continent, and the human rights mechanisms in the form of the european court of human rights and the iacrthr that have specifically addressed vawg, these treaties and mechanisms can only have persuasive value in other jurisdictions. these can never be a substitute for an internationally binding treaty on vaw. as the name suggests, they are only applicable and binding within its’ specific region. they do not bind states in other regions. notably, its provisions on vaw also do vary in terms of scope and applicability. therefore, since regional treaties provisions vary according to their specific needs there remains the need for a uniform set of obligations to be adopted. https://doi.org/10.17561/tahrj.v23.8662 tameshnie deane the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 23 furthermore, treaties can and should be adopted to respond to critical issues arising at any given time. for example, international human rights law has increasingly developed to recognise the need for a gender perspective on for example torture and other ill-treatment in the adoption of cat. additionally, the icerd which prohibits the abhorrent practice of racial discrimination in south africa and its concomitant effects of exclusion and segregation saw the international community respond directly to the issue with a legal treaty specifically making racial discrimination a human rights violation and its practice illegal. cedaw is a creature of its time and if it were to be drafted today, vaw would be explicitly addressed and probably in some detail. this begs the question and concerns of why, given the current epidemic proportions of gbvf in the world, has the international community not yet responded similarly with the adoption of a specific treaty targeted at gbvf, especially as they have previously done so. indeed, lessons have been learned in the decades since the passing of cedaw. laws, treaties, and jurisprudence has evolved. a new international treaty will allow for the inclusion of these lessons learned including for example, prohibiting reservations to the treaty provisions. it can also include the recommendations and concluding remarks made over the years by the cedaw committee. this experiences together with the strength and weaknesses of the regional treaties will strengthen the drafting and implementation of a global treaty on gbv. in conclusion, the current international efforts to combat gbvf is far from adequate with no international treaty specifically addressing vaw. cedaw which is the most prominent among the applicable treaties, and other conventions like such as the iccpr and cat have been interpreted to address vaw, with varying degrees of success. however, overall, these have 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(2015). transforming our world: the 2030 agenda for sustainable development, 21 october 2015, a/res/70/1. (sdg). https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations human rights legal framework and cedaw in addressing the issue the age of human rights journal, 23 (december 2024), e8662 issn: 2340-9592 doi: 10.17561/tahrj.v23.8662 32 un human rights committee. (1988). ccpr general comment no. 16: article 17 (right to privacy), the right to respect of privacy, family, home and correspondence, and protection of honour and reputation, 8 april 1988. un human rights committee (1989). ccpr general comment no. 17: article 24 (rights of the child), 7 april 1989. un human rights committee. (1990). ccpr general comment no. 19: article 23 (the family) protection of the family, the right to marriage and equality of the spouses, 27 july 1990. un human rights committee. (1999). ccpr general comment no. 27: article 12 (freedom of movement), 2 november 1999, ccpr/c/21/rev.1/add.9. un human rights committee. (2000). ccpr general comment no. 28: article 3 (the equality of rights between men and women), 29 march 2000, ccpr/c/21/rev.1/ add.10. un human rights committee. (2004). general comment no. 31 [80], the nature of the general legal obligation imposed on states parties to the covenant, 26 may 2004, ccpr/c/21/rev.1/add.13. un human rights committee. (2014). general comment no. 35, article 9 (liberty and security of person), 16 december 2014, ccpr/c/gc/35. un human rights committee. (2019). general comment no. 36, article 6 (right to life), 3 september 2019, ccpr/c/gc/35. received: 3rd february 2024 accepted: 21st june 2024 https://doi.org/10.17561/tahrj.v23.8662 gender-based violence in international human rights law – the efficacy of the united nations hu 1. introduction 1.1. the purpose and aim of this study 1.2. methodology and delimitations 2. protection of the human rights of women under international law 2.1. universal declaration of human rights 2.2. the international convention on the elimination of all forms of racial discrimination 2.3. international covenant on civil and political rights and the international covenant on econ 2.4. convention against torture and other cruel, inhuman, or degrading treatment or punishment 2.5. convention on the rights of the child 2.6. optional protocol to the convention on the rights of the child on the sale of children, chi 2.7. international convention on the protection of the rights of all migrant workers and members 2.8. convention on the rights of persons with disabilities 2.9. cedaw 3. un resolutions on vaw 3.1. beijing declaration 4. regional frameworks 4.1. convention of belém do pará 4.2. istanbul convention 4.3. maputo protocol 5. concluding remarks reference list case law international and regional instruments bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 1 bci, personal identity and autonomy. ulysses on the ship of theseus vanesa morente parra1 abstract: this article analyzes the ethical and legal challenges of brain-computer interfaces (bcis), focusing on their impact on personal identity and autonomy. it examines the transformative potential of neurotechnology, especially write-in bcis that intervene directly in brain activity. drawing from ortega y gasset’s zoon technikon and parfit’s theory of personal identity, it reflects on how these systems may blur agency and self-continuity. the text also addresses the eu regulatory framework and the theory of neurorights. using ulysses on the ship of theseus as metaphor, it advocates preventive governance based on ethics, human rights, and informed, autonomous consent. keywords: brain computer interfaces, freedom of thought, mental privacy, ai act, neurorights. summary: 1. approach to the phenomenon of brain-computer interfaces or bci. 1.1. what do we talk about when we talk about bci? 1.2. types of bci and current practical applications. 2. ethical and legal framework applicable to bci systems. 2.1. legal regulation of bcis in the european union. 2.2. theory of neurorights: is their recognition necessary? 3. ethical and legal challenges of bci. ulysses on the ship of theseus. 3.1. the interface market: cognitive enhancement, autonomy of will, and personal identity. 3.2. the state as a “behaviour enhancer” through bcis. 4. some conclusions. 1. approach to the phenomenon of brain-computer interfaces or bci this article addresses a central research question: how do write-in bcis, as opposed to read-out bcis, challenge autonomy, personal identity, and freedom of thought? while read-out bcis extract information from neural activity, write-in bcis intervene in brain processes, raising distinctive ethical and legal concerns. the contribution of this work is to situate these risks within a legal-philosophical framework, showing that informed consent alone may be insufficient to safeguard individual agency. the analysis unfolds in four parts: (1) theoretical and conceptual foundations, (2) taxonomy of bcis, (3) ulysses and the ship of theseus as a metaphor for identity alteration, and (4) proposals for preventive governance. josé ortega y gasset, in meditations on technique, states that there is no man without technique, so our “technical acts” are not a supervening phenomenon in the history of humanity, but rather technique is a constitutive element of human nature itself. it would be as if to say, imitating aristotle’s zoon politikon, that in ortega’s view, the human being is zoon technikon. “technical acts” are those to which the human being devotes their efforts with the primary aim of inventing and then executing a plan of action, which allows both to ensure the satisfaction of basic needs with minimal effort –to change our circumstances– and to create new possibilities by producing objects that do not exist in 1 assistant collaborating professor university pontificia comillas icade (vmorente@icade.comillas.edu). https://doi.org/10.17561/tahrj.v25.9773 mailto:vmorente@icade.comillas.edu bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 2 nature. man, and technique are so deeply intertwined that one could argue that the human being begins with the development of technique (ortega y gasset, 1965, pp. 32–33). perhaps bci systems (brain-computer interfaces) best represent, more than any other “technical act,” the hybridization between the human being and technique, as they constitute the highest expression of a symbiotic relationship between the human, the machine, and the virtual world.2 this is also the idea expressed by javier echeverría when he refers to “techno-persons” and their life in the third environment. the “person” has until now lived in two environments, the first being the natural environment and the second the political one, which, in any case, is artificial –except for aristotle–.3 however, for some time now, the person has become a “techno-person” because their life unfolds, in addition to the natural and political-social environments, in the digital environment or third environment. “techno-personality” is divided into three specific types: the first type is embodied by the human person who develops much of their life in the third environment; the second type of techno-person would be technological artifacts and software, that is, purely digital personalities; and finally, the techno-persons of fiction, such as those appearing in the film blade runner, i.e., fictional characters. in turn, the first type of techno-person –the category in which we humans belong– may be graded according to the time and space –techno-time and techno-space– of their life dedicated to the third environment to the detriment of the first two, that is, how much of their vital time unfolds in the digital environment and how much in the natural and social or political one. according to the thesis of echeverría and almendros, if in the not-so-distant future the interface market becomes popular due to its high immersive capacity in virtual realities or parallel digital worlds, it is very likely that the human being will fully become a technoperson and cease to be a “mere person” (echeverría & almendros, 2023, p. 89-91 & 105). thus, the prediction of the science fiction novel ready player one by ernest cline, published in 2011 and set in 2044, would be fulfilled. 2 julian savulescu and hazem zohny have recently published an article in which they address the ethical issues that may arise not from the hybridization between an individual and a machine or ai, but between brains—what has come to be known as brain-to-brain interfaces (bbis). among the ethical questions they raise, the following are particularly noteworthy: what identity emerges from the hybridization of two brains? what consequences could the voluntary connection of two adult brains via interfaces—based on sufficient information—have for “mental privacy”? would this constitute a “personal unity” or rather two individuals—a duo? savulescu, j. and zohny, h., “when two become one: singular duos and the neuroethical frontiers of brain-to-brain interfaces”, cambridge quarterly of healthcare ethics (2024), 33:4, pp. 494–506. https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/ article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/441 6f124088ff38a262a5bd62f55750a 3 “the city is one of the natural things and that man is by nature a civic (political) animal. and the enemy of civic society is, by nature and not by accident, either an inferior being or more than a man. (...) and this is what is proper to humans in contrast to the other animals: to possess, uniquely, the sense of good and evil, of just and unjust, and of the other moral distinctions. the communal participation in these is what founds the household and the city. by nature, the city is prior to the household and to each one of us. for the whole is necessarily prior to the part”. aristóteles (1986), la política, alianza, madrid, p. 62 (1253 a.) https://doi.org/10.17561/tahrj.v25.9773 https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 3 for now, we can only affirm that bci systems are the most relevant techniques among the so-called “neurotechnologies,” which in turn refer to the devices and procedures used to access, control, investigate, evaluate, manipulate and/or emulate the structure and function of the neural systems of animals or human beings.4 currently, human brain-machine interfaces (computers, robots or any other device) are being developed more vigorously in the healthcare field, due to their therapeutic potential, especially in relation to certain types of disability, neurodegenerative and psychiatric diseases.5 however, bci systems also have an undeniable neuro-perfective or meliorative potential, which is of course being explored in the entertainment and “human enhancement” markets.6 a priori, the use of bci systems raise two questions on which this article focuses. the first is that bcis can significantly affect the “autonomy of the will.” although the free and informed expression of the will must be the legitimating cause of interface use, a possible abuse of bcis could even bring about the loss of personal autonomy. the second question is what kind of use can be made of bcis, both in the public and private spheres, so that such use is legitimate and does not lead to abuse that may violate the right to the free development of personality and, consequently, the right to build one’s own personal identity.7 4 leon declaration on european neurotechnology: a human rights-based and person-centered approach. spanish presidency. council of the european union, 23–24 oct. 2023. https://digital.gob.es/dam/es/ portalmtdfp/digitalizacionia/declaracion_de_leon.pdf1 5 in the united states, we find the brain initiative (brain research through advancing innovative neurotechnologies) promoted by the nih (national institutes of health), which is currently developing the map project, aimed at investigating the dynamic interrelations between brain regions that underlie certain pathologies and disabilities. in china, the china brain project focuses on studying the properties of individual nerve cells and how they communicate through synapses to produce cognitive functions such as consciousness, memory, and reasoning, as well as to prevent brain diseases. it also seeks to leverage knowledge about the brain to advance ai technologies. in europe, the human brain project—funded by the eu—is being developed with the goal of synthetically reproducing human brain capacities. source: techdispatch on neurodata, spanish data protection agency (aepd) https://www.aepd.es/guias/neurodatos-aepd-edps.pdf 6 the leon declaration acknowledges the undeniable commercial potential of bci systems by recognizing that the non-medical applications of any neurotechnology represent a new opportunity to transform education, well-being, and entertainment through neurostimulation or brain modulation and stimulation. it explicitly refers to the private sector’s interest -especially the gaming and entertainment industriesin braincomputer interfaces, which increased significantly in 2022. see león declaration (see citation 2). 7 as will be addressed in another section of this chapter, some authors argue that a “controlled use” of interfaces -or even of deep brain stimulation (dbs)would be ethically justified if it serves to prevent a potential danger or harm to society. for example, eradicating the sexual drive of a pedophile through brain stimulation. the legitimacy of these “behavior-enhancing interfaces” is understood to lie in the free and informed consent of the individual undergoing the intervention; otherwise, such practices would constitute a serious violation of personal freedom and integrity. lyreskog, d.d m.; zohny, h.; singh, i.; and savulescu, j., (2023), “the ethics of thinking with machines: brain computer interfaces in the era of artificial intelligence”, international journal of chinese and comparative philosophy of medicine, 21(2), p. 23-24. https://ora.ox.ac.uk/objects/uuid:bc99679d-b4c8-4639-b9a5-eb14359bd75a https://doi.org/10.17561/tahrj.v25.9773 https://digital.gob.es/dam/es/portalmtdfp/digitalizacionia/declaracion_de_leon.pdf1 https://digital.gob.es/dam/es/portalmtdfp/digitalizacionia/declaracion_de_leon.pdf1 https://www.aepd.es/guias/neurodatos-aepd-edps.pdf https://ora.ox.ac.uk/objects/uuid:bc99679d-b4c8-4639-b9a5-eb14359bd75a bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 4 1.1. what do we talk about when we talk about bci? in september 2024, the eu council published a report titled “from vision to reality: promises and risks of brain computer interface,”8 which defined bci systems as the technique encompassing a series of neurotechnologies that enable direct communication between the human brain and an external device. bcis detect and interpret the brain’s electrical signals and convert neural impulses into execution commands that control connected devices solely through thought, i.e., without any need for movement.9 therefore, it is not an exaggeration to state that the advancement of bcis represents one of the most transformative innovations of the 21st century, opening new possibilities for interaction between humans and technology. two of the sectors in which bcis are expected to develop significantly are the healthcare sector—with concrete applications in medical rehabilitation—and the human enhancement sector, particularly cognitive enhancement. in fact, a bci may be the only viable communication system for users with severe disabilities who cannot speak or use keyboards, mice, or other traditional interfaces. for this reason, their initial applications focused on assisting people with severe disabilities.10 however, their use has now extended toward human enhancement in healthy individuals, as will be analyzed later. although this technique has boomed strongly in the current century, the first steps towards decoding brain activity through possible connections between the human brain and machines were already taken in the 20th century. in fact, we have been able to detect and transcribe the brain’s electrical activity for almost a century: in 1929, a german psychiatrist named hans berger developed a system capable of recording the brain’s bioelectrical activity, now known as the electroencephalogram (eeg). long before berger’s discovery, other researchers had already demonstrated the electrophysiological nature of the brain -fristsch, hitzig, caton, and cybulsky among othersthrough studies with animals. thanks to the intelligent use of the technology available at the timestring galvanometers, dual -coil galvanometers, and oscilloscopesberger managed to transcribe brain activity by placing electrodes on the scalp, thus creating the electroencephalogram technique (la vaque, 1999, p. 3/9). half a century later, in 1977, a belgian researcher named jacques vidal, working at ucla, coined the term brain-computer interface to describe the technique of decoding 8 https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_ campaign=20241002-art-research-paper&utm_content=visual&utm_medium=social&utm_source= chatgpt.com 9 counsil of the ue from vision to reality: promises and risks of brain computer interface 2024. https://www. consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_source=linkedin. com&utm_medium=social&utm_campaign=20241002-art-research-paper&utm_content=visual 10 most bci applications and uses focus on motor disabilities. the roadmap document, part of the horizon 2020 project of the european commission, presents four case studies of individuals who have used each of the four bci systems—replace, restore, improve, and enhance—to illustrate the range of use cases for these highly promising techniques, especially for people with severe physical disabilities. https://openlib. tugraz.at/download.php?id=56194931c6b87&location=browse https://doi.org/10.17561/tahrj.v25.9773 https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_campaign=20241002-art-research-paper&utm_content=visual&utm_medium=social&utm_source=chatgpt.com https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_campaign=20241002-art-research-paper&utm_content=visual&utm_medium=social&utm_source=chatgpt.com https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_campaign=20241002-art-research-paper&utm_content=visual&utm_medium=social&utm_source=chatgpt.com https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_source=linkedin.com&utm_medium=social&utm_campaign=20241002-art-research-paper&utm_content=visual https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_source=linkedin.com&utm_medium=social&utm_campaign=20241002-art-research-paper&utm_content=visual https://www.consilium.europa.eu/media/fh4fw3fn/art_braincomputerinterfaces_2024_web.pdf?utm_source=linkedin.com&utm_medium=social&utm_campaign=20241002-art-research-paper&utm_content=visual https://openlib.tugraz.at/download.php?id=56194931c6b87&location=browse https://openlib.tugraz.at/download.php?id=56194931c6b87&location=browse vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 5 brain signals in a dialogue between humans and machines (lotte et al., 2018, p. 2).11 however, it was not until the dawn of the 21st century that research on the brain through bcis gained real academic importance, evidenced by the first international congress held in the u.s. in 1999. it was at this international meeting that an academic definition of bcis was adopted, referring to them as systems that allow the brain to interact with the environment without the intervention of the normal mechanisms of peripheral nerves and muscles. this is achieved by monitoring brain activity in order to translate the user’s intentions into commands for a device.12 from the 1990s to the present, the field of bci research has expanded significantly. in 2013, the journal brain computer interface was established, and in 2015, the international bci society was founded to promote research and the development of technologies that enable individuals to interact with the world through brain signals (lotte et al., 2018, p. 3-4). the most recent world congress on bci was the 11th international meeting held in 2023, which brought together over 500 participants from around the world. the intensification of academic and research activity is evidence of the extraordinary potential that bcis hold—not only in the medical and therapeutic fields. currently, many technologists agree that in the not-too-distant future, interface applications will be highly diverse. among the future applications envisioned by engineers and technologists are thought decoding, which could be undeniably useful in criminal law, where determining whether a suspected offender is telling the truth would be very valuable.13 another future possibility is the establishment of brain-brain interfaces (bbi), a recent field of scientific exploration with enormous potential. lastly, perhaps the most outlandish possibility proposed is that of technologist ray kurzweil, who asserts that in the near future -in fact, he places his predictions in our present, between 2020 and 2030 our minds could be “scanned” and “downloaded” into any software (kurzweil, 2005, p. 200). this thesis is rooted in the theory of “dataism,” which posits that our minds are composed solely of information that can be translated into binary code -that is, it can be computerized so it could be downloaded into any digital storage repository.14 11 https://inria.hal.science/hal-01656743/document 12 saha, s., mamun, k, a., ahmed, k., mostafa, r., naik, g., darvishi, s., khandoker, a., h., baumert, m., (2021), “progress in brain computer interface: challenges and oportinites”, frontiers in systems neuroscience, feb., vol. 15. https://www.frontiersin.org/journals/systems-neuroscience/articles/10.3389/ fnsys.2021.578875/full?utm 13 although the polygraph technique has been questioned many times due to its lack of technical and scientific reliability, it still enjoys a high degree of credibility in the collective imagination. this has led to the use of algorithms that “detect lies” in settings such as airports or job interviews being perceived as even more legitimate, despite also lacking technical reliability. bittle, j. (2020), “lie detectors have always been suspect. ai has made the problem worse,” mit technology review, march 13th. https://www. technologyreview.com/2020/03/13/905323/ai-lie-detectors-polygraph-silent-talker-iborderctrl-converusneuroid/ 14 some authors refer to it as the “religion of dataism”, which, according to yuval harari, understands the universe as a flow of data, whereby each human being is a unit of information that integrates seamlessly into the digital society. harari, y. (2017), homo deus: a brief history of tomorrow, debate, madrid, p. 428. https://doi.org/10.17561/tahrj.v25.9773 https://inria.hal.science/hal-01656743/document https://www.frontiersin.org/journals/systems-neuroscience/articles/10.3389/fnsys.2021.578875/full?utm https://www.frontiersin.org/journals/systems-neuroscience/articles/10.3389/fnsys.2021.578875/full?utm https://www.technologyreview.com/2020/03/13/905323/ai-lie-detectors-polygraph-silent-talker-iborderctrl-converus-neuroid/ https://www.technologyreview.com/2020/03/13/905323/ai-lie-detectors-polygraph-silent-talker-iborderctrl-converus-neuroid/ https://www.technologyreview.com/2020/03/13/905323/ai-lie-detectors-polygraph-silent-talker-iborderctrl-converus-neuroid/ bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 6 there is no doubt that one of the most technically interesting applications currently being developed is the possible connection between the brain and generative ai, known as artificial brain technology (abt).15 the most imaginative technologists have already predicted a rather disturbing use of this system, as they understand that an interface with generative ai could be used to artificially reprogram human brains. in this case, the brain would be the passive element or recipient of commands originating from the generative ai, which would act as the active and creative element. however, not all predictions are so disturbing; in fact, some uses have a very benevolent purpose, such as interface applications in the fields of automotive technology and home automation, which could be of great help in the daily lives of people with disabilities (maiseli et al., 2023, p. 4/16). it is true that the application of bcis is very promising for technologists and, above all, for individuals who may benefit from them to gain greater autonomy in their daily lives. however, academia cannot overlook the fact that all practical applications of bcis have undeniable ethical and legal consequences that must be analysed. therefore, some of these ethical, social, and legal consequences constitute the object of critical analysis in this article. 1.2. types of bci and current practical applications considering the above, we are now able to offer a canonical definition of bci, understood as those technological systems that enable direct communication between the human brain and an external device, such as computers, prostheses or robots. once the electrical signals generated by neuronal activity are detected, they are processed and translated into commands intelligible to the connected devices. this technology is based on neuroscientific principles and uses tools such as electroencephalography (eeg), magnetoencephalography (meg), and electrocorticography (ecog). strictly speaking, a bci is a technique that measures the activity of the central nervous system (hereinafter cns) and converts it into artificial output that replaces, restores, enhances or supplements the natural output of the cns and, therefore, alters the ongoing interactions between the cns and its external or internal environment.16 15 it may also be referred to as ai-bci, although the specialized literature more commonly refers to it as abt (artificial brain technology). lyreskog, d. m., zohny, h., singh, i., and savulescu, j., (2023), “the ethics of thinking with machines: brain-computer interfaces in the era of artificial intelligence,” international journal of chinese and comparative philosophy of medicine, 21(2), p. 13. this article explains how this type of interface has been particularly successful in the therapeutic field, especially when used as a tool for people with disabilities. ibid., p. 14. 16 this definition is taken from the horizon 2020 project, which has already been cited. this initiative, led by the european commission since 2013, aims to establish the state of the art in the european context—it is not a project designed to fund specific research activities—regarding the development of certain technologies, including human brain–machine interface systems. the project is coordinated by graz university of technology (austria), although it includes the participation of 11 other internationally renowned research centres specializing in bci systems. https://doi.org/10.17561/tahrj.v25.9773 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 7 regardless of whether bcis are defined in a more restrictive or extensive manner, they must always include three essential components (maiseli et al., 2023, p. 2-3/16): a) acquisition of the electrical signal emitted by the brain. this first stage consists of capturing electrophysiological signals that represent specific brain activities. the capture of brain electrical signals requires the extracranial placement -this being the most common systemof an electronic device with electrodes, as used in electroencephalography (eeg) and magnetoencephalography (meg). neuroimaging techniques (fmri) are also employed. in all cases, the captured signals are subjected to a process of filtering (elimination of “noise”), amplification, and digitization. b) processing of the captured signals. in this stage, the bci extracts critical electrophysiological features from the acquired signals to define brain activity and, consequently, decode the user’s intention. c) practical applications. the final stage consists of translating the electrical signals into commands capable of controlling external devices, such as a robotic arm. although there are different types of bci, they all follow a standard functional pattern. any bci system must include “sensors” to record the brain’s electrical activity; it also includes an algorithm that functions as a “decoder,” transforming the brain’s electrical activity into a command. this command or signal is sent to an “actuator,” which is the third and final element of the bci and may consist of a simple computer or a robotic arm (monasterio astobiza et al., 2019, p. 31). moreover, as has already been noted, we should now be speaking not only of bcis, but also of bbis (brain-brain interfaces) and ccis (computer-computer interfaces) (coin et al., 2020, p. 2/9), and of course, the already mentioned abt systems (lyreskog et al., 2023, p. 13–14). at first glance, abts were born with a benevolent purpose: to assist individuals in their personal development, not only by decoding electrical signals, but also by interpreting conscious and unconscious thoughts that turn thinking into action. however, as will be analysed later, abts have such a transformative potential that they require deep and measured ethical and legal reflection. the different purpose or aim of each interface system gives rise to another classification of bcis (brunner et al., 2015, pp. 2-3/10). ● restorative bci. it consists of recovering a lost or diminished function. it is intended for cases involving the loss of functionality in a limb due to an accident or an acquired disability. from the brain to the limb (command direction). ● replacement bci. these are neuroprostheses (prostheses controlled mentally). applied to individuals who have lost a limb due to an accident or acquired disability. ● meliorative or perfective bci (for example, enhancing immersive experience in a game; virtual reality). in this case, the application has the purpose of “enhancing” a standard functionality. it is not so much about “collecting” information from brain activity as about manipulating that brain activity. https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 8 ● supplementary or augmentative bci (augmented reality glasses). this refers to enhancement supported by a device, whether augmented reality glasses or a sensor-equipped suit that increases the immersive capacity of the bci system. ● rehabilitative bci (recovering functionality of limbs or senses). from the outside in, the patient/user receives an output -a commandthat causes them to move the limb over which they had lost mental control. ● bci as a research tool (decoding brain activity). all the bcis mentioned can, in turn, be classified based on whether the method used is invasive or not (monasterio astobiza et al., 2019, p. 32). the eu council, in its report of september 2024 already cited, follows this classification, although it adds an intermediate category:17 ● invasive bcis: invasive bcis require the implantation of electrodes directly into brain tissue. this allows high-resolution detection of neural signals, which is crucial for applications where precision is essential, such as controlling advanced robotic prostheses or treating severe neurological disorders. examples include devices that allow people with paralysis to control a mechanical arm or systems that restore vision in blind patients. however, these interfaces entail significant risks, such as infections, immune rejection, and brain damage. these systems involve surgical procedures to implant electrodes directly into the brain or on its surface. this system can capture the brain’s electrical signals with high resolution, making it technically more precise but potentially more hazardous to health. ● partially invasive bcis: these are implants that require minimal surgery or rely on pre-existing medical technologies, such as stents and catheters, to insert electrodes very close to the brain, although without the need for open surgery. ● non-invasive bcis: in this case, the bci system uses external sensors to capture electrical signals, although this process also captures a great deal of background noise, resulting in less precise outcomes. the report by the council of europe, published in september 2024, highlights a crucial factor regarding bcis: the direction in which the information flows. xiaoyu sun and ye bin, in their article published in 2023, warn that the ethical and legal implications of a bci differ depending on whether it operates by the read-out method— software reads the brain—or the write-in method—software writes into the brain— (2023, p. 2/9). for greater conceptual clarity, bcis can thus be classified along two axes: (a) by mode of operation—read-out (extracting neural data) versus write-in (modifying neural processes); and (b) by method of implementation—invasive, semi-invasive, or noninvasive. while read-out bcis primarily threaten privacy and mental integrity, write-in 17 council of the ue “from vision to reality”, p. 4 https://doi.org/10.17561/tahrj.v25.9773 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 9 bcis directly affect agency and psychological continuity, since they may alter decisionmaking processes or induce responses without the subject’s full control. this distinction is crucial, as it grounds the argument that write-in bcis pose unique challenges for autonomy and identity, requiring tailored ethical and legal safeguards. in contrast, writein bcis are designed to manipulate the user’s brain activity with the aim of stimulating or inhibiting specific responses. perhaps the most extreme modality within this type of bci is deep brain stimulation (dbs), used for various neurological conditions and disabilities such as parkinson’s disease. in this case, the brain is a passive element, while the device connected to the brain plays an active and manipulative role, which would align with the purpose of meliorative and augmentative bcis. according to xiao-yu sun and ye bin, the write-in bci modality poses the greatest ethical and legal threats to personal identity and autonomy of the will—or personal agency—as will be further analysed later (2023, p. 3–4/9). having clarified this taxonomy, the next step is to examine current and potential future applications of these interface systems. once the taxonomy of bcis has been presented, the next step is to examine their current and potential future applications. at present, bcis are being developed in two very different fields: healthcare, and leisure and entertainment. in the healthcare sector, the applications are particularly promising in areas such as orthopaedics, where the goal is to restore motor functionality in dysfunctional limbs. patients with amputations, for instance, can control robotic or bionic prostheses solely through brain signals. a notable case is the eu-funded nebias project, in which a patient not only autonomously controlled a bionic hand but also regained the sense of touch and was able to distinguish textures while blindfolded. this was a replacement bci of an invasive nature.18 bcis are also proving effective in post-stroke rehabilitation. through functional electrical stimulation (fes), patients can activate paralyzed muscles and gradually recover mobility. the recoverix project19 is a prominent example, demonstrating how rehabilitative bcis can restore lost functions that may affect half of the body in addition, augmentative and alternative communication (aac) systems are being developed for patients with severe paralysis. for example, individuals with amyotrophic lateral sclerosis (als) can “write” with their thoughts using bcis designed by companies such as neuralink20 or tobii dynavox.21 both aims at a therapeutic, 18 https://cordis.europa.eu/article/id/150378-nebias-the-worlds-most-advanced-bionic-hand 19 https://recoverix.com/es/stroke-study-results/ 20 in august 2020, elon musk presented neuralink. this company develops intracranial interfaces, coinsized devices designed to be implanted in individuals with tetraplegia or als. in 2023, neuralink received fda (food and drug administration) approval to begin human trials, and so far, it has implanted its chips in three patients, who, according to reports, are showing promising results. neuralink is the paradigmatic example of the growing interest in the private sector in developing neuroscientific applications across various fields, particularly in the educational and—most notably—the entertainment sectors. 21 https://es.tobiidynavox.com/ https://doi.org/10.17561/tahrj.v25.9773 https://cordis.europa.eu/article/id/150378-nebias-the-worlds-most-advanced-bionic-hand https://recoverix.com/es/stroke-study-results/ https://es.tobiidynavox.com/ bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 10 primarily rehabilitative purpose, but differ significantly: neuralink’s approach is invasive, whereas tobii’s is non-invasive. they also diverge in scientific grounding, as neuralink has received wide media coverage but still offers limited peer-reviewed evidence. finally, invasive rehabilitative bcis are being applied to patients with parkinson’s disease. the company inbrain neuroelectronics, for instance, is developing graphene-based implants to modulate brain activity and improve symptoms, illustrating how advanced neurotechnology is moving from experimental trials to practical therapeutic applications.22 another area of application for bcis is mental health, specifically as a noninvasive and drug-free alternative treatment for depression and anxiety. some bcis, combined with transcranial stimulation, have shown effectiveness in emotion regulation, such as in the case of mert therapy -or magnetic e-resonance therapywhich was approved by the u.s. fda in 2008 specifically for treating depression and anxiety. mert is a neuromodulation treatment that combines repetitive transcranial magnetic stimulation (rtms) with an in-depth analysis of each patient’s brainwaves. the process begins with an electroencephalogram to identify any irregularity or dysfunction in the brainwave pattern. these data are then transformed by experts into a report to formulate a treatment tailored to the brain pattern of everyone which is as unique as their fingerprint.23 the leon declaration itself warmly welcomes the development of non-invasive and non-medical interfaces aimed at transforming education, well-being, or entertainment through neurostimulation or brain modulation and stimulation, among other techniques. these applications, the declaration states, could allow companies to innovate and offer more effective and comprehensive education and a complete and immersive entertainment experience. in fact, there are already several examples of companies in the gaming sector using bcis to enhance the immersive experience of players, through augmented reality glasses, body sensors, or haptic suits that seek to create a virtual reality increasingly indistinguishable from analogy reality. companies such as i-braintech, an israeli company that has developed a mind-controlled football video game, which is used by professional athletes to improve their mental and physical performance. this game uses neurofeedback to train motor functions through brain activity. the commercial potential of bcis in the gaming sector is undeniable, as it is an industry that generated $187.7 billion in 2024.24 as bcis continue to improve, a market for interfaces will simultaneously develop, not only aimed at entertainment but also at cognitive enhancement. this is precisely one of the 22 https://inbrain-neuroelectronics.com/ 23 https://mertclinics.com/ biometric data are regulated under regulation (eu) 2016/679 of the european parliament and of the council of 27th april 2016 on the protection of natural persons about the processing of personal data. the regulation defines biometric data as: “personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data.” biometric data are classified as a category of “special categories of personal data” under the gdpr. 24 https://newzoo.com/resources/blog/global-games-market-revenue-estimates-and-forecasts-in-2024 https://doi.org/10.17561/tahrj.v25.9773 https://inbrain-neuroelectronics.com/ https://mertclinics.com/ https://newzoo.com/resources/blog/global-games-market-revenue-estimates-and-forecasts-in-2024 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 11 theses underpinning technological transhumanism, which advocates for the development of a free market of neurotechnologies whose purpose is cognitive enhancement through brain stimulation provided by bcis. while most bcis clearly have a benevolent purpose whether therapeutic or enhancement-related it seems evident that the uses and potential abuses of certain bcis require a profound and measured ethical and legal analysis of their potential impact on autonomy of will, understood as a driving and constitutive element of personal identity. in this regard, antonio diéguez very aptly warns how entrenched in the collective imagination the thesis of the axiological neutrality of any technical or technological process is. in fact, the instrumental thesis of technology, which conceives it as a mere “means” or “instrument” at the service of humans, has been strongly consolidated with the aim of justifying practically any scientific and technological development. however, diéguez argues, this thesis is not only naïve but also misleading, since by focusing the analysis solely on the artifacts or devices that make up a given technology, it forgets that said technology is also a social, economic, political, and cultural network that lies behind everything and even makes its very existence possible (diéguez, 2024, p. 43). this idea draws attention to the unavoidable need for every scientific and technological breakthrough to be accompanied by a robust ethical debate and solid legal regulation, whose primary aim must always be to protect individuals’ fundamental rights (klein & nam, 2016, p. 123). 2. ethical and legal framework applicable to bci systems bcis fall within a very broad regulatory spectrum, since their practical application is directly or indirectly related to ai, data protection, and the safety of medical devices. it has already been noted that interfaces are experiencing significant and promising development in the healthcare field, especially in relation to disability and certain psychiatric and neurodegenerative diseases. the ethical healthcare framework in which bci systems operate is mainly defined by the belmont report, which establishes the three basic ethical principles of healthcare practice. regarding the first of these -the principle of autonomy or “respect for persons”it includes at least two ethical convictions. the first is that all individuals must be treated as autonomous agents, and the second, that all persons whose autonomy is diminished have the right to be protected. the practical implementation of these postulates is embodied in the figure of informed consent, which consists of the expression of will that is informed, free, and conscious.25 the written manifestation of informed consent, therefore, is the legitimizing basis for any use or application of bci systems in the healthcare field. this requirement is especially demanding in settings marked by structural dependency or constraint (e.g., schools, prisons, long-term care), where voluntariness may be compromised. in such contexts, additional safeguards are warranted to ensure that consent remains genuinely free and informed. refusal must not entail any detriment for the individual. 25 article 8 of law 41/2002, 14th november, the basic law regulating patient autonomy and rights and obligations in the field of clinical information and documentation. article 9 governs consent by representation and establishes that, in all cases, the decision of the legal representative must always be made in accordance with the greatest benefit to the patient’s life or health. https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 12 on the other hand, the medical application of interfaces finds additional axiological support in the principle of beneficence, as they have a clearly therapeutic purpose in virtually all clinical cases in which bci systems have been used. likewise, in any healthcare system with universal access and coverage, the third principle of the report -the principle of justicewould also be fulfilled, provided that the distribution of bci systems is carried out according to the criterion of equity.26 the international bioethics committee of unesco published a report on the ethics of neurotechnologies in december 2021, in which it defines bci systems and outlines their applications in current life. likewise, it warns that abuse or illicit or spurious use of these techniques could seriously harm the individual subjected to them. the unesco bioethics committee thus aligns itself with the regulatory policy set out in the oecd recommendations on responsible innovation in neurotechnology, published on december 11, 2019, which call for harm avoidance and respect for human rights, particularly privacy, cognitive liberty, and individual autonomy.27 in addition, reference must still be made to the nuremberg code (1947) and the declaration of helsinki (wma, 1964, with its subsequent revisions), which remain cornerstones of biomedical ethics. more recently, the oecd recommendation on responsible innovation in neurotechnology (2019) reaffirmed the principles of integrity, transparency and accountability in this field. taken together, these instruments provide the ethical background against which binding european regulation must be interpreted. 2.1. legal regulation of bcis in the european union although the eu does not currently have specific regulations for bci technology, this does not mean that it exists in a legal vacuum. moreover, this regulatory gap or legal loophole is not the result of a deliberate omission by the european legislator, but rather because interfaces are regulated on a sectorial basis and not in a comprehensive or monographic way. bci systems are subject to a general legal framework that encompasses aspects such as ai, data protection, and the safety of medical devices. for analytical clarity, this framework can be systematised into four main dimensions: (1) the safety and performance of medical devices, (2) the protection of neurodata under data protection law, (3) the classification of related software under the ai act, and (4) the obligations imposed on digital platforms under the dsa. 26 as previously noted, bci systems may have a purely research-oriented purpose, rather than a therapeutic one, even if therapy is a mediumor long-term goal. in such cases, attention must also be paid to the ethical principles set out in the nuremberg code, as its adoption in 1947 was intended to establish the minimum standard of moral legitimacy that must be observed and respected in any research process. https://www. conicyt.cl/fonis/files/2013/03/el-c%c3%b3digo-de-nuremberg.pdf 27 recommendation of the council on responsible innovation in neurotechnology, oecd (organisation for economic co-operation and development) 11th december 2019. https://legalinstruments.oecd.org/en/ instruments/oecd-legal-0457 https://doi.org/10.17561/tahrj.v25.9773 https://www.conicyt.cl/fonis/files/2013/03/el-c%c3%b3digo-de-nuremberg.pdf https://www.conicyt.cl/fonis/files/2013/03/el-c%c3%b3digo-de-nuremberg.pdf https://legalinstruments.oecd.org/en/instruments/oecd-legal-0457 https://legalinstruments.oecd.org/en/instruments/oecd-legal-0457 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 13 by understanding bci systems as medical devices, they fall under the scope of regulation (eu) 2017/745 of april 5 on medical devices of the european parliament and of the council, whose regulatory purpose is to govern devices with medical applications, including those related to bcis designed for rehabilitation or diagnosis. this regulation imposes strict requirements for safety, clinical evaluation, and certification to ensure patient safety. article 2.1 of the regulation defines “medical device” as “any instrument, apparatus, appliance, software, implant, reagent, material or other article intended by the manufacturer to be used, alone or in combination, for human beings for one or more of the following specific medical purposes: diagnosis, prevention, monitoring, prediction, prognosis, treatment or alleviation of disease or disability.” article 2.5 defines “implantable device” as: “any device, including those that are partially or wholly absorbed, which is intended: to be totally introduced into the human body, or to replace an epithelial surface or the surface of the eye, by clinical intervention, and which is intended to remain in place after the procedure. any device intended to be partially introduced into the human body through clinical intervention and to remain in place after the intervention for at least thirty days shall also be deemed to be an implantable device.” finally, article 2.6 defines “invasive device” as: “any device which, in whole or in part, penetrates inside the body, either through a body orifice or through the surface of the body.” therefore, bci systems—regardless of whether they are invasive, non-invasive, or semi-invasive—fall within the definition of “medical device” and must comply with all the requirements and obligations established in regulation (eu) 2017/745 of april 5. secondly, bci systems extract information from brain activity that is transformed into personal data, which is why another regulation applicable to bci systems is the general data protection regulation (gdpr) 2016/679 of april 27. the data extracted through bci technology have been referred to as neurodata. these are defined as the information collected from the brain and/or the nervous system, although one must also consider as neurodata the inferences drawn from that original data—that is, “metaneurodata.” neurodata and metaneurodata are always personal and sensitive data, since brainwaves and other forms of neurodata—including metadata—make us uniquely and singularly identifiable.28 the use of bci systems may give rise to two types of data: on the one hand, biometric data29 related to both the structure or morphology of the brain and its functionality—this 28 international report committe of bioethics (unesco) ethical issues of neurotechnology, dec. 2021, p. 31 et seq. 29 article 4(14) of the eu general data protection regulation (gdpr) defines biometric data as: “personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopy data.” https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 14 would be the material information of the brain;30 and, on the other hand, emergent or derived data resulting from brain activity, both conscious and unconscious—this would correspond to the “mental” or psychological dimension of brain information.31 regardless of how the data extracted from brain activity captured by a bci system are classified, they fall into the so-called “special category of data.”32 the processing of this data is, in principle, prohibited unless there is the voluntary, free, specific, unambiguous, and informed consent of the individual subject to the interface. however, in contexts of special subjection or clear power imbalance, consent may not be considered freely given. recital 43 gdpr expressly warns that consent is unlikely to be valid when the controller is a public authority or where there is a clear imbalance between the data subject and the controller (e.g., schools, prisons). in such cases, controllers should rely on alternative lawful bases under article 6.1—notably performance of a task carried out in the public interest (art. 6.1 e)) or compliance with a legal obligation (art. 6.1 c))—and, for specialcategory neurodata, on a condition of article 9.2, such as substantial public interest (9.2 g), healthcare (9.2 h), public health (9.2 i) or scientific research with appropriate safeguards (9.2 j) in conjunction with art. 89). any reliance on these bases remains subject to necessity and proportionality, strict purpose limitation and robust safeguards (dpia, dpo involvement, access controls, data minimisation). the data extracted, in any case, must be the “minimum” necessary to fulfil the specific purpose—principle of data minimization.33 however, complying with this requirement in the application of bci systems is quite complex, as a single intervention can yield data of diverse nature and may even result in “unexpected findings” for which the data subject had not given consent—hence the need for the information sheet to anticipate this eventuality. lastly, the processing of this type of data requires the controller 30 the european data protection supervisor (edps), and by extension the spanish data protection agency (aepd), follow a primarily physiological classification of data extracted from neuronal activity. they classify such data into “morphological or structural data,” “functional data,” and, finally, “data relating to the peripheral nervous system.” considering this taxonomy, the edps and aepd classify neural data solely based on their material or biometric dimension. however, this initial classification is complemented by three additional categories based on purpose, one of which includes psychological data and data intended for neuroenhancement. in techdispatch on neurodata, by the european data protection supervisor and the spanish data protection agency, 2024. https://www.aepd.es/guias/neurodatos-aepd-edps.pdf 31 according to the “emergentist” thesis, defended by authors such as john searle, the mind and consciousness arise—or emerge—as immaterial entities from a material basis, namely the brain. that is, mind and brain are two different dimensions, although they are indissociable. the mind—or consciousness—cannot be understood without the brain; in fact, the brain determines the mind. emergentism represents a third line of argument to explain the mind/brain relationship, positioned between dualism and monism. the dualist or “compatibilist” thesis is based on the possible distinction between brain and mind, the latter being understood as self-awareness, or even as the soul of each person. on the other hand, the monist or “incompatibilist” thesis—supported by many neuroscientists—denies that human beings possess a dual material and immaterial nature. monism holds that the human being is composed solely of organic matter; that is, the soul is a creation of the human brain. searle, j. (2000), the mystery of consciousness, paidós, barcelona, p. 17–30. 32 article 9 gdpr (general data protection regulation) eu. 33 article 5.1 c) gdpr (eu). https://doi.org/10.17561/tahrj.v25.9773 https://www.aepd.es/guias/neurodatos-aepd-edps.pdf vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 15 to exercise proactive responsibility (accountability) and to adopt specific and qualified security measures—security by design and by default—including the necessary impact assessment (dpia).34 thirdly, bci systems that rely on ai (abt) could fall within the regulatory scope of the ai act (regulation 2024/1689 of june 13—european ai act). considering that in most of their applications bci or abt systems serve a therapeutic purpose, they could be considered high-risk systems insofar as they affect human health. in such cases, the abt system would first be subject to a conformity assessment by the competent authority before the ai systems used can be placed on the market or put into service. additionally, ai providers must issue a declaration of conformity with eu law (art. 47 ai act). secondly, a risk management system for known and foreseeable risks must be implemented and documented, especially when the health and fundamental rights of individuals are potentially at stake. a sound data governance system must also be documented, particularly when dealing with especially sensitive data (art. 10 ai act). thirdly, abt systems will be subject to human oversight; that is, they will be designed in such a way that they can be effectively monitored by natural persons during the period they are in use, which includes equipping them with appropriate human-machine interface tools. furthermore, article 14.2 of the ai act continues by stating that “the objective of human oversight shall be to prevent or minimize the risks to health, safety, or fundamental rights that may arise when a high-risk ai system is used according to its intended purpose or when it is reasonably foreseeable that it may be misused, particularly when such risks persist despite the implementation of other requirements laid down in this section.” finally, the digital services act (dsa, eu 2022/2065) does not directly regulate bcis but may become relevant when they are integrated into online platforms such as gaming, social media or neuroadaptive advertising. in those cases, its provisions on transparency, the prohibition of manipulative design, and the prevention of addictive behaviours could indirectly apply to bcis. if such integration is not present, however, the dsa should not be invoked to avoid conceptual ambiguity. taken together, these instruments—mdr, gdpr, ai act and, where appropriate, the dsa—define the normative framework in which bcis must be developed and used within the eu. this framework must also be interpreted in the light of ethical instruments such as the nuremberg code (1947), the declaration of helsinki (wma, 1964, with subsequent revisions), and the oecd recommendation on responsible innovation in neurotechnology (2019). 2.2. theory of neurorights: is their recognition necessary? the report of the international bioethics committee of unesco, published in december 2021 on the ethics of neurotechnologies -which has already been mentioned warns that certain techniques for understanding and manipulating the brain, such as bci 34 article 5.2 and 24 gdpr (eu). https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 16 systems, could affect or alter personal autonomy, the free development of personality, and identity. in the face of this technological challenge, the unesco bioethics committee raises the question of whether the current legal framework that guarantees the protection of human rights is and will be sufficient. that is, it asks whether the legal interests intended to be safeguarded by human rights will indeed be protected in this new scenario of technological development. this question is rhetorical because the answer had already been provided four years earlier by neurologist rafael yuste—head of the brain project— and his research team at columbia university through their proposal of neurorights. in 2017, rafael yuste, sara goering, and other researchers published an article in the scientific journal nature aimed at disseminating the proposal of neurorights (yuste et al., 2017, p. 153 et seq.). this proposal was adopted almost immediately by both the united nations and the chilean parliament, which initiated a process of recognition and guarantee of neurorights.35 the catalogue of neurorights consists of five specific rights: rights to mental identity; rights to mental liberty, mental privacy, equality of access to cognitive enhancement, and non-discrimination—that is, the prevention of algorithmic bias. the proposal of neurorights has also found support in the academic field, specifically in the work of marcelo ienca and roberto andorno, although in their case it involves four rights rather than five: the right to cognitive liberty; the right to mental privacy; the right to mental integrity; and, finally, the right to psychological continuity (andorno & ienca, 2017, p. 10/27). however, several authors have criticized the proposal of neurorights. at the international level, the most authoritative voice on the matter is that of jan christoph bublitz (2022, p. 3 et seq/15.), while at the national level, the prominent figure is rafel de asís (2022, p. 60 et seq.). for reasons of space, it is not possible to analyse in detail the arguments that have been presented to reject the theory of neurorights. here, three basic arguments are upheld: the legal interests that these new rights aim to protect are already legally safeguarded both at the international and national levels through constitutional charters and implementing legislation; moreover, the issue is not so much the recognition of new rights, but rather the effectiveness of the rights that already exist; finally, through the creation of fundamental rights, an attempt is made to limit the individual freedom of the autonomous and conscious subject in favour of a supposedly justified paternalism. on many occasions, excessive protection -or outright prohibitionsof brain interventions are based on what could be called a “suspicious will” presumed to be vitiated. there is suspicion toward the free will of the person who wishes to “enhance” themselves because it is assumed that the motives behind it are neither rational nor truly free, but emotional and coerced by a consumerist and perfectionist ideology that is, moreover, negatively criticized. there is distrust regarding the lawfulness of informed consent in the context 35 chile is a global pioneer in granting legal protection to the so-called neurorights. in 2021, the chilean senate approved a constitutional reform to guarantee a new set of rights aimed at protecting the human brain. the reform amends article 19 of the chilean constitution, establishing that scientific and technological development must serve people and respect their physical and psychological integrity. https://courier. unesco.org/es/articles/chile-pionero-en-la-proteccion-de-los-neuroderechos https://doi.org/10.17561/tahrj.v25.9773 https://courier.unesco.org/es/articles/chile-pionero-en-la-proteccion-de-los-neuroderechos https://courier.unesco.org/es/articles/chile-pionero-en-la-proteccion-de-los-neuroderechos vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 17 of enhancement, because it is assumed that the affected subject lacks the basic capacity, consenting out of misinformation. precisely, the following section focuses on analysing the paradoxical relationship between the free expression of consent and personal identity in the context of interfaces, whether therapeutic or enhancing. 3. ethical and legal challenges of bci. ulysses on the ship of theseus from an ethical-legal perspective, bci systems could be classified according to three criteria: the first is the teleological criterion, which considers the purposes pursued by bcis; the second is the axiological criterion, which focuses on the ethical principles governing their therapeutic or non-therapeutic application; and finally, the subjective criterion, which considers the type of patient or user of the bci. according to the first of these criteria, bcis can have either a therapeutic or a non-therapeutic purpose, and within the latter category, a further distinction can be made between those used for recreational or playful purposes and those aimed at enhancement. therefore, bcis can be used for three distinct objectives: as a therapeutic tool; as mere entertainment; and, finally, for cognitively enhancing a person. depending on how the bci is used -that is, whether it is a read-out or a write-in bci, and whether it is invasive or not different ethical criteria will apply. this indicates that both the teleological and axiological criteria are closely related. in fact, there are authors who advocate for a specific ethical and legal regulation for each type of bci, as each one poses different ethical challenges.36 the third criterion for selecting bcis is the subjective one, which considers the type of user of the device; that is, it examines whether it is an adult with full legal capacity; an adult with a disability who needs support—guardianship or curatorship; and, finally, whether it is a minor. according to the convention on the rights of persons with disabilities (crpd) signed in new york in 2006, all signatory states must take the necessary measures to ensure that persons with disabilities have access to technologies and can use them to improve their health status (article 9 and 25 crpd). therefore, a person with intellectual disabilities has the same legal capacity as anyone else and merely requires appropriate and effective support, with the aim of safeguarding their fundamental rights and preventing abuse (article 12 crpd). finally, in the case where the user of a bci is a minor, the convention on the rights of the child of 1989 establishes in article 12 that children must be able to participate in the decision-making process. in fact, the declaration of helsinki of the world medical association (revised in 2013) affirms that when a minor reaches the age of 12, they may “assent” together with their legal representatives, who must give consent for the use of a bci. moreover, the child’s best interests shall prevail over science and society. 36 sun xiao-yu and ye bin advocate for a specific governance model for each type of bci, distinguishing between write-in bcis and read-out bcis. in the former, the legal interests at risk are autonomy and personal identity, while in the latter, it is privacy that is primarily at stake. https://www.nature.com/articles/s41599023-02419-x https://doi.org/10.17561/tahrj.v25.9773 https://www.nature.com/articles/s41599-023-02419-x https://www.nature.com/articles/s41599-023-02419-x bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 18 these regulatory requirements determine that for the use of a bci to be legitimate, it must necessarily be preceded by the expression of the user’s free, informed, unequivocal, and current will. of course, attention must be paid to the type of bci to be used, since the implications for the user are not the same if it is a write-in or a read-out bci, and whether it is invasive or not. in any case, the ethical foundation for the use of a bci is determined by individual freedom or personal agency, as could only be expected in the context of liberal democracies. however, the problem that arises is that the user of a write-in bci -i.e., the insertion of commands that “rewrite” the brainmay fall into a paradox that we have here termed the paradox of “ulysses tied to the mast of the ship of theseus.” homer tells us in book xii of the odyssey that ulysses -odysseusafter being warned by circe, tries to avoid a potential situation of loss of self-control or akrasia that could lead him to death. aware that he might lose dominion over himself, ulysses asks his rowers to plug their ears with wax and to tie him to the mast of the ship when passing by the island of the sirens. in this way, he can enjoy their song while avoiding irreversible harm.37 the paradox lies in the fact that “our ulysses” -the bci usermay be tying himself to the mast of the ship of theseus, which changed so much in appearance -its identitythat it was nearly impossible to recognize. at what moment did our ulysses -the bci userstop being ulysses and become someone else? if ulysses has not lost his “agency,” then which expression of will should be respectedthe one of the first ulysses or that of the second? perhaps this is the greatest challenge faced by the ethical and legal analysis of bci use. while the explicit -and writtenexpression of the subject’s free will is the key that opens or enables any use of a bci, this very exercise of freedom may lead the user into a situation of total alienation or loss of self-control. that is, the free and voluntary use of a bci, in the name of the free development of one’s personality, could entail a complete loss of self-mastery and subject the user to the “slavery of the bci,” which constitutes an emptying of freedom itself. is individual freedom an unlimited fundamental right? can an individual with full legal capacity subject themselves to a regime of slavery and lose their dignity through a free decision? should personal self-destruction be legally restricted? these are the questions we will attempt to answer in the next two sections. 3.1. the interface market: cognitive enhancement, autonomy of will, and personal identity whether the use of a write-in bci has a therapeutic purpose or not such as applications of bcis in the entertainment sector or for cognitive enhancement the same ethical principles apply, namely: the principle of respect for the person or principle of autonomy, the principle of beneficence -which includes the principle of non-maleficenceand, 37 homero, la odisea, p. 268-269. https://bibliotecadigital.ilce.edu.mx/colecciones/obrasclasicas/_docs/ odisea.pdf https://doi.org/10.17561/tahrj.v25.9773 https://bibliotecadigital.ilce.edu.mx/colecciones/obrasclasicas/_docs/odisea.pdf https://bibliotecadigital.ilce.edu.mx/colecciones/obrasclasicas/_docs/odisea.pdf vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 19 finally, the principle of justice. as stated in the belmont report, informed consent -the free, explicit (and written) manifestation of unequivocal willis the enabling tool for the lawful application of a bci in the context of medical treatment or a clinical trial.38 informed consent is nothing more than the practical expression of the principle of autonomy of the will, or respect for the individual’s freedom, which is why it serves as the key to enable the use of a bci in any context, provided that it is expressed by a person with full legal capacity. from a human rights perspective, freedom of thought must be analysed in its dual dimension: the forum internum, referring to the inner sphere of beliefs and thoughts, and the forum externum, referring to their outward manifestation. this distinction, recognised both in article 9 of the european convention on human rights and article 10 of the charter of fundamental rights of the european union, is crucial for assessing the ethical and legal risks of bcis. the forum internum enjoys absolute protection and cannot be restricted under any circumstances, whereas the forum externum may be subject to limitations when it collides with other rights or public interests. write-in bcis, by directly intervening in neural processes and potentially altering decision-making and thought formation, threaten the absolute dimension of the forum internum. this explains why their regulation must be particularly rigorous: they risk undermining the very freedom of thought that underpins personal identity and autonomy in democratic societies. as previously noted, certain uses of bcis are intended to deliberately modify some traits of the user’s personality or identity, which poses no problem if they are applied in the medical field and meet ethical and legal requirements.39 however, what happens if a market emerges for behavioural or cognitive enhancement, where the user can purchase a write-in bci whose purpose is to alter or modify certain traits of their personality—in other words, of their personal identity? in this case, the bci would serve as a “driver” of the free development of personality, since identity is not static but rather a construct in continuous development and adaptation. many authors have ventured to define such a complex concept as personal identity -descartes, kant, and locke, among othershowever, due to space constraints, we will focus here on a contemporary author who has become a true reference on the subject: derek parfit. this author understands that personal identity comprises two dimensions: a quantitative or material one, which corresponds to the physical or biological part of identity; and a qualitative or formal dimension, which corresponds to the psychological or biographical aspects of the individual (parfit, 2004, p. 375). theories formulated throughout history on personal identity have leaned toward one of these two dimensions, giving rise to two types of theories. the first is a theory of 38 https://www.bioeticayderecho.ub.edu/archivos/norm/informebelmont.pdf 39 the international ethical and deontological framework on “good practices in medical research” is defined, on the one hand, by the nuremberg code, adopted on 20th august 1947, and, on the other hand, by the belmont report, adopted on 18th april 1979. https://doi.org/10.17561/tahrj.v25.9773 https://www.bioeticayderecho.ub.edu/archivos/norm/informebelmont.pdf bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 20 identity based solely on the bodily and cerebral dimension and its temporal continuity. that is, it is a theory focused only on the material part of identity, and therefore on biological identity. the second theory is based on psychological continuity or biographical identity. this theory, in turn, holds that a person is the same at two different moments in time if they recognize or remember themselves in a past event. according to this thesis, people who experience episodes of amnesia, senility, or temporary insanity somehow lose their identity. finally, the reductionist theory -advocated by parfit himselfconceives identity as a complex phenomenon that must be explained in a sectorial manner, that is, through simpler parts. parfit argues, personal identity is not what truly matters, but rather the continuity of our memories, values, and, to some extent, our character. it is about identifying a set of qualities that do not form something univocal, but which make us unique and unrepeatable. personal identity, therefore, would be a polyhedral and dynamic issue, as it is something unfinished and in constant construction, though it retains a unique essentiality. parfit’s thesis, which views identity as an incomplete project, should be complemented by the theory of mind proposed by andy clark and david chalmers. both authors claim that the brain does not construct the mind -our immaterial identityin an autarkic manner, but rather through multiple external connections such as vision, experiences, and various technical and material supports. according to the “active externalism” thesis, the cognitive process results from a coupling between the brain and all external elements, which actively shape the individual’s conscious entity (2011, p. 65 et seq.). our mind is an “extended mind,” which is not limited or confined to the narrow material boundaries of our brain, among other reasons because the brain is in constant interaction with its environment. moreover, if we accept, as javier echeverría argues, that human beings now develop their mental life in a third environment -that is, the digital environmentthen we must agree that our brain constructs reality and, consequently, our identity through the multiple digital devices we use -mobile phones, tablets, computers, etc.-. in this context, therefore, we should speak of “technopersonality” rather than personal identity. however, this new environment of “technopersonalities” will not be qualitatively affected by the proliferation of interfaces, but only quantitatively, since bcis have significantly enhanced the immersive capacity of the third environment or digital environment.40 the free development of personality now finds external supports that strengthen these personality 40 according to maartje schermer, the digital or technological environment in which we currently develop our personality has not only changed our mind but has also modified our very physical dimension. schermer argues that, with technological development, it is becoming increasingly difficult to conceptually distinguish between “human” and “machine,” as cyborgs are becoming more common, blurring the boundary between the two. is a person connected to a bci a human being or a machine? the author maintains that the answer lies in the notion of personality. if there is a personality capable of making decisions and assuming responsibility, then we are dealing with a “person” in the full moral and legal sense of the term. schermer, m. (2009), “the mind and the machine. on the conceptual and moral implications of brain-machine interaction,” neuroethics, 3, p. 221-222. https://doi.org/10.17561/tahrj.v25.9773 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 21 changes, which add even more dynamism to personal identity. autonomy of will and personal identity converge in the guiding principle of any liberal democracy, which is none other than the free development of personality. however, with the potential use of a bci for cognitive enhancement, the question arises regarding the limits of one’s own will: is autonomy of will unlimited? could a person voluntarily bring about the end of their own freedom and, consequently, of their human dignity? this question arises at the very boundary between the state as guarantor of fundamental rights and the individual freedom of a bci user. the governance of bcis must strike a balance between, on one hand, respect for fundamental rights -especially autonomy, identity, and privacyand, on the other, the user’s free development of personality, to avoid unjustified paternalism. precisely to prevent state interference of a paternalistic nature, this article advocates for a governance of prevention rather than direct state intervention through prohibitions. this prevention could be structured around two normative domains: one belonging to the realm of rules and the other to that of principles, following ronald dworkin’s classification. considering that any adult with full legal capacity can make “freedom-limiting” decisions -that is, they can bring about the end of their own individual freedoma possible solution to avoid this paradox could be the consolidation of a “good practice of use”, which would in any case be optional for the user but prescriptive for the provider a rule. in the medical field, this clinical instrument has been referred to as the “ulysses contract,” which would be a specific and concrete modality of an “advance directive.” ulysses contracts aim to anticipate a possible situation of akrasia or lack of personal mastery or self-control (connor et al., 2022, p. 691). diachronic consent and identity change. to address foreseeable identity drift or akrasia induced by write-in bcis, advance directives (ulysses contracts) can specify: (i) objective triggers (usage thresholds, clinical signs, third-party observations), (ii) authorised enforcers (named relatives/clinicians), (iii) permitted actions (temporary suspension, parameter limits, lockouts, voluntary admission), and (iv) review and revocation conditions. while enforceability is jurisdiction-dependent, the normative function of such clauses is to preserve the person’s authentic prior will under foreseeably states of diminished selfcontrol, in line with autonomy, beneficence and non-maleficence. in the clinical context, this is known as a “crisis plan” or “advance care planning.” it involves opening a process of information-sharing, counselling, and dialogue between the patient and specialists, which may result in the so-called “ulysses contract,” in which the patient’s preferences regarding future treatment or hospitalization are included (schwarz et al., 2025, p. 5). although these contracts differ in their nature and legal force depending on the country, they share the same spirit: allowing the patient to express their wishes and preferences regarding treatment or hospitalization if they lose the capacity to express such deeply personal matters in the future. however, it must be considered that if a patient had previously chosen a particular treatment before losing their agency or capacity for self-determination, and later, after losing that capacity, opposes receiving any treatment, they obviously cannot be forcibly subjected to that treatment. in other words, the ulysses contract finds its own limitations within the patient’s autonomy of will (connor et al., 2022, p. 691). nevertheless, for our purposes, it may prove to be a very https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 22 useful tool for a bci user who, facing the threat of developing an addiction, a personality change, or even a mental health problem as a consequence of repeated use of a write-in bci, may request that people in their environment disconnect the bci or, if necessary, arrange for admission to a mental health facility. ulysses contracts have been widely developed and well received in both the field of mental health and addiction treatment, and this accumulated clinical experience could be usefully leveraged to more effectively implement this tool in the regular use of write-in bcis (connor et al., 2022, p. 704). the other way for protecting the fundamental rights of bci users lies in the development and effective guarantee of the principles of beneficence and non-maleficence required by the belmont report. these principles materialized through a preventive legal regulation that focuses on responsible and benevolent technical design, which, in any case, respects fundamental rights and avoids any harm or injury. it seems evident that the misuse of bcis could lead to an addiction to the interface comparable to so-called “non-substance addiction,” as is the case with gambling, pornography addiction, or work addiction. the problem with non-substance addictions is that they pose a serious ethical and legal challenge, since, unlike substance addictions, they involve legal behaviour that only becomes problematic for the individual and their environment when its use or consumption becomes excessive.41 as is well known, many online services -games, apps, social media platforms, etc.-deliberately employ techniques for capturing attention and providing immediate rewards, applying the current neuroscientific knowledge about the brain and its addiction to dopamine. for this reason, the digital services act (eu) 2022/2065 of 19th october 2022 (dsa, by its english acronym) requires online service providers to design their platforms responsibly and ethically to prevent addiction and compulsive behaviours, especially in the case of minors, people with disabilities, or those at risk of vulnerability. article 25 requires that “providers of online platforms shall not design, organize, or operate their online interfaces in a way that deceives or manipulates the recipients of the service, or otherwise materially distorts or impairs the ability of recipients of their service to make free and informed decisions.” to ensure compliance with this requirement, articles 34 and 35 of the dsa oblige very large online platforms to carry out risk assessments of the systemic effects resulting from the functioning of their services, especially the potential negative effects on mental health, algorithmic manipulation, or the encouragement of addictive behaviours that may result in excessive use of their services, the generation of dependency, or even the loss of self-control—akrasia. this preventive legislation thus aims to avoid the use—and possible abuse—of these systems from eventually affecting two especially protected legal interests: personal identity and autonomy of the will. 41 in some countries, such as spain, france, italy, or mexico, it is possible to initiate legal proceedings to declare a person as “prodigal” when they squander or irrationally waste their assets—such as in cases of gambling addiction—thus endangering the financial stability of their own family. these declarations are usually resolved by assigning a temporary guardianship (or legal guardianship) to oversee and protect the person’s financial decisions. https://doi.org/10.17561/tahrj.v25.9773 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 23 finally, the principle of justice established in the belmont report requires a fair distribution of public resources. this principle of distributive justice therefore demands the intervention of the state as guarantor of equitable access to cognitive enhancement through a bci. obviously, we are referring to bcis in the healthcare field; however, one might also consider whether the state should act not only as a direct provider of bcibased therapeutic services, but also in other areas where the state already operates as an educator or behaviour enhancer. these areas are education and the penitentiary system. the final section will be devoted to analysing the application of bcis in the public sector. 3.2. the state as a “behaviour enhancer” through bcis at present, the bcis used in the public sector are only applied in the medical field, although it is not unreasonable to imagine other possible uses of cognitive enhancement bcis in the educational or penitentiary domain, since in these settings the state acts as an “educator.” it should be noted that, both in the field of compulsory formal education and in educational and social reintegration programs implemented in penitentiaries,42 the state has a clear aim of improving the behaviour of the administered or supervised individuals, through a systematic “socializing intervention.” considering this educational function of the state, would it then be legitimate to use write-in bcis to increase the state’s effectiveness in these socializing processes? that is, could the state use writein bci systems in educational centres and prisons to instil civic values in students and inmates that allow for better social coexistence? the possibility that the state could “enhance behaviour” through write-in bcis, especially in institutional contexts such as schools or penitentiaries, raises serious concerns from the perspective of respect for personal autonomy. it is possible—and even desirable for some—to replace the current persuasive model of education with one of direct intervention, even for morally laudable purposes, such as promoting empathy or inhibiting violent behaviour (schermer, 2009, p. 226). however, in contexts of asymmetric power, such as those that exist in the educational or penitentiary sphere, the objection to direct intervention through bcis becomes particularly significant, since consent could be seriously compromised because of the imbalance inherent in a relationship of “special subjection.” indeed, this is precisely what the 2016 general data protection regulation of the eu warns about when it states that consent given in certain contexts may be “flawed” when provided within the framework of a special subjection relationship with the public administration. jan c. bublitz has warned that allowing the state to directly intervene in mental processes for corrective or preventive purposes may result in a technologically sophisticated form of mental coercion, violating the right to freedom of thought—even when the individual consents (bublitz, 2014, p. 12-15/25). the author seeks to avoid the 42 the eu adopted commission recommendation 2023/681 of 8 december 2022 on the procedural rights of suspected or accused persons subject to pre-trial detention and on the material conditions of detention, which calls on member states to invest in the social reintegration of prisoners and to adapt to their individual needs. https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 24 risk of a potential “soft paternalism” based on a moral program of civic improvement (idem, p. 14/25). the right to freedom of thought defended by bublitz (2022, p. 13/15) is recognized in article 9 of the european convention on human rights and in article 10 of the charter of fundamental rights of the eu, where it is considered absolute in its internal dimension— that is, it admits no restrictions, not even from the state for preventive or educational purposes. therefore, the use of write-in bcis by the state in the contexts could represent an unjustified direct intrusion into the most intimate space of human beings, thereby dragging the democratic rule of law towards the logic typical of totalitarian states. faced with this potential threat, authors such as marcelo ienca and roberto andorno have repeatedly advocated for the adoption of an international declaration within the framework of the united nations that enshrines and guarantees neuro-rights at the global level. however, for the time being, the only initiative underway is a recommendation on the ethics of neurotechnologies promoted by unesco, in which marcelo ienca participates as rapporteur. these authors advocate for the necessary adoption of a set of neuro-rights to prevent possible interferences by the state and even by the private sector. these neuro-rights would protect individuals from the use of both write-in and read-out bcis. through the recognition of the right to cognitive liberty, the right to mental integrity, and, finally, the right to psychological continuity, individuals would be protected against potential public and private intrusions that could be carried out via write-in bcis. in turn, they demand the recognition of mental privacy in view of the possibility of reading brain activity without the consent of the user of a read-out bci.43 however, it has already been argued here that approving a catalog of neuro-rights is legally redundant, since all the legal interests that these new rights aim to enshrine are already guaranteed by the traditional fundamental rights enshrined in any western constitution. in any case, the use of a bci must be preceded by the express and unequivocal manifestation of informed consent, which is the enabling and legitimizing instrument of any human interaction with technology. nevertheless, personal agency finds its limit in those spaces where the individual does not decide within a realm of real and full freedom, but rather within an apparent one. both the educational and penitentiary contexts are determined by a state prescription—whether a law or a court sentence—that obliges minors to attend school (and, consequently, their parents or guardians to ensure it), and convicts to enter prison. these individuals are involuntarily subjected to a special subjection relationship that results in a relational asymmetry, where any possibility of making fully free decisions is suppressed, even if the individuals have received the necessary and comprehensible 43 in january 2025, the united nations special rapporteur, ana brian nougrères, published a report on the right to privacy in relation to the regulation of neurotechnologies and the use of neurodata. this report highlights two key aspects that must be considered when regulating read-out bci systems. first, it stresses that neurodata are biometric data that allow for personal identification with no margin of error, as they are comparable to a fingerprint. second, neurodata provide such deep insight into the individual that they enable predictions to be made about the characteristics or predispositions of the subject from whom the neurodata originate. https://doi.org/10.17561/tahrj.v25.9773 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 25 information and all ethical and legal requirements have been fulfilled. in these cases, what is at stake is not only freedom of thought—as defended by bublitz—but the very possibility of dissent, that is, of refusing even to adopt prevailing social norms. the mind thus emerges as the last inviolable stronghold of the person, as the final personal resistance against possible state intrusions which, under the pretext of “improving” individuals’ behaviour, may ultimately seek to “dominate” their innermost will. the refusal of any use of write-in or read-out bcis in the contexts constitutes a clear expression of the idea of freedom as non-domination, characteristic of republicanism.44 conversely, allowing the state to interfere with our brains through technology would be akin to turning us into transparent citizens, in the purest style of winston smith in the novel 1984. therefore, it is only in a context of equity, information, and full respect for fundamental rights and democracy that the uses—and even the abuses (if they are voluntary)—of bcis can be considered legitimate. 4. some conclusions the incorporation of brain-computer interfaces (bcis) into human experience, especially in their write-in modality, compels us to rethink traditional notions of personhood, autonomy, and identity. ortega y gasset’s idea of the zoon technikon, along with javier echeverría’s concepts of the “techno-person” and the “third environment,” show that technological mediation is no longer external or occasional, but constitutive of contemporary subjectivity. for this reason, ethics and law must abandon purely instrumental views and acknowledge the transformative—and sometimes disruptive— potential of technology in the configuration of the human being. among all neurotechnologies, write-in bcis pose the greatest risk to the autonomy of the will and to the subject’s identity. their ability to directly alter brain activity raises the question of whether informed consent can continue to function as a sufficient criterion of legitimacy. if a person freely authorizes interventions that may undermine that very freedom, we are faced with a classic dilemma of liberal democracies: can one freely renounce one’s own freedom? this is the paradox of ulysses on the ship of theseus, which questions which of the two wills ought to be legally respected. following derek parfit, and clark and chalmers, identity is not a fixed essence, but a narrative process, extended and in constant construction. however, this flexibility has limits. write-in bcis may put at risk the psychological continuity that enables us to 44 philip pettit is the contemporary reference for republicanism, and in his work of the same name he defines freedom as non-domination, distinguishing it from freedom as non-interference, which corresponds to the negative concept of liberal freedom. freedom as non-domination is the freedom of the city; it is the kind of freedom that one enjoys in the presence of others, and by virtue of a social design—understood as republican—none of them exercises domination over the individual. pettit, p. (1999), republicanism: a theory of freedom and government, paidós ed., barcelona, pp. 95–96. https://doi.org/10.17561/tahrj.v25.9773 bci, personal identity and autonomy. ulysses on the ship of theseus the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 26 recognize ourselves as the same person over time and, consequently, to be held ethically and legally responsible for our actions. law and ethics must safeguard this narrative coherence, beyond mere physical integrity. this article defends the importance of anticipatory reflection from a legalphilosophical perspective in the face of the challenges posed by disruptive technologies such as bcis. the philosophy of fundamental rights defines a model of anticipatory regulation focused on ethical design, risk evaluation, and respect for fundamental rights. in this context, the “ulysses contract”—inspired by clinical practice—may prove a useful tool for users to anticipate situations of loss of control, addiction, or personality change. although not without limitations, it offers a point of balance between user autonomy and the prevention of future harm. the proposal to create new fundamental rights—neurorights—responds to understandable concerns. however, the interests they aim to protect—such as mental privacy, cognitive liberty, or psychological continuity—are already guaranteed by classical fundamental rights. the problem does not lie in the lack of rights, but in the need to ensure the effectiveness of the rights that already exist. legal inflation may weaken the normative force of the system and distract from the real challenge: guaranteeing rights in the face of new technological threats. in contexts of special subjection such as schools or prisons, the use of write-in bcis to promote “desirable” behaviour directly clashes with freedom of thought, the free development of personality, and personal autonomy. even when informed consent is obtained, asymmetrical relationships compromise its validity. allowing the state to intervene directly in mental processes for formative or corrective purposes brings us dangerously close to an authoritarian model incompatible with a democratic rule of law. the mind must remain the last inviolable stronghold of human freedom. in a society driven by optimization, performance, and intellectual and physical perfection, the possibility of dissenting, of not wanting to improve—in other words, of being imperfect—must continue to be a fundamental right. therefore, any regulation of bcis must guarantee individual freedom and the privacy of our thoughts, for anything less would amount to ceding the sovereignty of our minds to others. bibliography andorno, r. and ienca, m., (2017). “towards new human rights in the age of neuroscience and neurotechnology”. life sciences, society and policy, 13(1), pp. 5. https://orcid.org/10.1186/s40504-017-0050-1 https://lsspjournal.biomedcentral. com/articles/10.1186/s40504-017-0050-1 aristóteles (1986). política. madrid: alianza. asís, r. (2022). “sobre la propuesta de los neuroderechos”. derechos y libertades, 47(ii). https://e-revistas.uc3m.es/index.php/dyl/article/view/6873/5469 https://doi.org/10.17561/tahrj.v25.9773 https://orcid.org/10.1186/s40504-017-0050-1 https://lsspjournal.biomedcentral.com/articles/10.1186/s40504-017-0050-1 https://lsspjournal.biomedcentral.com/articles/10.1186/s40504-017-0050-1 https://e-revistas.uc3m.es/index.php/dyl/article/view/6873/5469 vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 27 bittle, j. (2020). “lie detectors have always been suspect. ai has made the problem worse”. mit technology review. https://www.technologyreview.com/2020/03/13/905323/ ai-lie-detectors-polygraph-silent-talker-iborderctrl-converus-neuroid/ brunner, c., birbaumer, n., blankertz, b., guger, c, kübler, a., mattia, d., millán, j., miralles, f., nijholt, a., opisso, e., ramsey, n., salomon, p. and müller-putz, g. 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(2023). “the functional differentiation of brain-computer interfaces (bcis) and its ethical implications. humanities and social sciences communications, 10(1). https://doi.org/10.1057/s41599-023-02419-x yuste, r., goering, s., agüera y arcas, b., bi, g., carmena, j. m., carter, a., fins, j. j., friesen, p. gallant, j., huggins, j. e., kellmeyer, https://doi.org/10.17561/tahrj.v25.9773 https://doi.org/10.24112/ijccpm.212676 https://braininformatics.springeropen.com/articles/10.1186/s40708-023-00199-3 https://braininformatics.springeropen.com/articles/10.1186/s40708-023-00199-3 https://scielo.isciii.es/scielo.php?pid=s1886-58872019000200003&script=sci_arttext https://scielo.isciii.es/scielo.php?pid=s1886-58872019000200003&script=sci_arttext https://www.frontiersin.org/journals/systems-neuroscience/articles/10.3389/fnsys.2021.578875/full https://www.frontiersin.org/journals/systems-neuroscience/articles/10.3389/fnsys.2021.578875/full https://doi.org/10.1017/s0963180124000197 https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a https://www.cambridge.org/core/journals/cambridge-quarterly-of-healthcare-ethics/article/when-two-become-one-singular-duos-and-the-neuroethical-frontiers-of-braintobrain-interfaces/4416f124088ff38a262a5bd62f55750a https://doi.org/10.1007/s11569-009-0076-9 https://doi.org/10.1007/s11569-009-0076-9 https://doi.org/10.1057/s41599-023-02419-x vanesa morente parra the age of human rights journal, 25 (december 2025), e9773 issn: 2340-9592 doi: 10.17561/tahrj.v25.9773 29 p., klein, e., marblestone, a., mitchell, c. parens, e., pham, m., rubel, a., sadato, n., sullivan, l., teicher, m., wasserman, d., welex, a., whittaker, m. and wolpaw, j., (2017). “four ethical priorities for neurotechnologies and ai”. nature. https://www.nature.com/articles/551159a legal and normative references international legal framework ● nuremberg code (1947). ● declaration of helsinki (1964). ● belmont report (1979). ● convention on the rights of the child (1989). ● convention on the rights of people with disability (2006). ● recommendation on responsible innovation in neurotechnology (2019) ● recommendation on the ethics of neurotechnology (2021). eu legal framework ● regulation (eu) 2017/745 of the european parliament and of the council of 5 april 2017 on medical devices. ● regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 general data protection regulation (gdpr). ● regulation (eu) 2024/1689 of the european parliament and of the council of 13 june 2024 artificial intelligence act (ai act). ● regulation (eu) 2022/2065 of the european parliament and of the council of 19 october 2022 digital services act (dsa). received: 2nd july 2025 accepted: 8th october 2025 https://doi.org/10.17561/tahrj.v25.9773 https://www.nature.com/articles/551159a bci, personal identity and autonomy. ulysses on the ship of theseus 1. approach to the phenomenon of brain-computer interfaces or bci 1.1. what do we talk about when we talk about bci? 1.2. types of bci and current practical applications 2. ethical and legal framework applicable to bci systems 2.1. legal regulation of bcis in the european union 2.2. theory of neurorights: is their recognition necessary? 3. ethical and legal challenges of bci. ulysses on the ship of theseus 3.1. the interface market: cognitive enhancement, autonomy of will, and personal identity 3.2. the state as a “behaviour enhancer” through bcis 4. some conclusions bibliography legal and normative references where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american court of human right the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 1 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american court of human right liliana ronconi1 “i don’t want to be brave when i go out, i want to feel free” “you are not alone. speak. we are free!” 2 abstract: in response to the alarmingly high rates of sexual violence against girls and women in latin america, the inter-american human rights system is developing standards and remedies to address these issues since states have already recognized their rights, but this has not been enough. this article examines the only three cases in which the iacthr has addressed sexual violence against girls, “v.r.p., v.p.c., and others vs. nicaragua,” “guzmán albarracin vs. ecuador,” and “angulo losada vs. bolivia.” it highlights some of the achievements including the concept of intersectionality, the intensified due diligence due to their status as girls, the role of combined stereotypes, and others. it also focuses on areas for ongoing improvement such as the definition of institutional violence, the application of article 5.2 of the achr concerning the conceptualization of torture, and the need for transformative reparations in the prevention of violence against girls in the inter-american court’s approach. keywords: girls’ rights, sexual rights, violence, inter-american court. introduction the last decade of the 20th century was marked by achievements regarding the recognition of children’s rights. specifically, many countries in the region ratified the convention on the rights of the child and even approved internal regulations of the rights of children. in addition, the states recognized women’s human rights. in fact, some latin american states assumed different obligations through the ratification of the convention on the elimination of all forms of discrimination against women (cedaw) in the international arena, and the convention on the eradication of violence against women (the ‘belem do pará’), the american convention on human rights (hereinafter achr) and the protocol of san salvador, in the regional arena (o’connell, 2020; burgorgue-larsen, 2017). in certain cases, the states assumed similar obligations even in their constitutions and legal systems. however, there are still alarming statistics regarding sexual violence against women in general and specifically against girls in the region. according to un 1 universidad santo tomas, chile. lronocni@santotomas.cl, orcid https://orcid.org/0000-0002-77220015 2 slogans that can be read in different women’s demonstrations. the author extends special thanks to the anonymous reviewers for their valuable comments, which will undoubtedly enhance this publication. https://doi.org/10.17561/tahrj.v25.9714 mailto:lronocni@santotomas.cl https://orcid.org/0000-0002-7722-0015 https://orcid.org/0000-0002-7722-0015 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 2 women, nearly one in three women (30%) worldwide has been a victim of physical or sexual violence by their partner, sexual violence outside the relationship, or both, at least once in their lifetime.3 in latin america, femicide remains a significant concern. in 2023, at least 3,897 women were victims of femicide across 27 countries and territories in the region, which amounts to at least 11 gender-based violent deaths of women every day.4 on average, in latin america, 1 in 6 girls have experienced sexual violence (unicef, 2021).5 additionally, the region has the second-highest adolescent pregnancy rate in the world. each year, approximately 1.6 million adolescents between the ages of 15 and 19 give birth, meaning that every 20 seconds, an adolescent girl becomes a mother.6 the inter-american court of human rights (hereinafter iacthr or the court) has developed standards on eradicating sexual violence, sexual and reproductive rights, and the rights of children. it has already established some rights standards to eradicate sexual violence against women7, although specially when such violence is committed in the context of internal armed conflicts or systematic persecutions by state agents (palacios zuloaga, 2008; clérico and novelli, 2014; ronconi, 2024, mantilla falcón, 2024). although sexual and reproductive rights are not explicitly recognized in the achr, they have been recognized by jurisprudence.8 the court has also recognized that boys and girls are subjects of special protection.9 however, it was only in recent times that the iacthr started giving attention to girls’ sexual rights. in this paper, i will discuss the progress of the iacthr in cases of sexual violence against girls, including its use of the concept of intersectionality, the intensified due diligence due to their status as girls, the role of combined stereotypes,10 and others. i will also focus on areas for ongoing improvement such as the definition of institutional violence, the application of article 5.2 of the achr concerning the conceptualization of torture, and the need for transformative reparations in the prevention of violence against girls in the inter-american court’s approach. 3 https://www.unwomen.org/es/articulos/datos-y-cifras/datos-y-cifras-violencia-contra-las-mujeres 4 https://www.cepal.org/es/comunicados/al-menos-11-mujeres-son-victimas-feminicidio-cada-dia-americalatina-caribe 5 https://www.unicef.org/lac/informes/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-elcaribe 6 https://lac.unfpa.org/es/news/costo-embarazo-en-adolescentes-america-latina-y-caribe 7 the court has not worked alone in these advancements; the inter-american commission on human rights, mesecvi, and various civil society organizations have played a key role in driving the agenda within the inter-american system. on this topic, see smyth (2022) 8 specifically, the iacthr relied on articles 4 (right to life), 5 (personal integrity), 7 (personal liberty and security), 11 (private life), and 8 and 25 (access to justice) of the achr in order to address cases concerning sexual and reproductive rights. see icthr, cuadernillo de jurisprudencia de la corte idh, nº 4: género. 9 for example, the cases “villagrán morales vs. guatemala”, “atala riffo vs. chile”, “fornerón vs. argentina”, “ramírez escobar vs. guatemala”, among others. on the inclusion of the children’s approach in the inter-american court see beloff (2009; 2024). 10 these advances are important because they are “steps forward” (in terms of courtis, 2006) that cannot be ignored by the states but, on the contrary, must be respected specially by the “conventional control” (von bogdandy, et. al., 2017). https://doi.org/10.17561/tahrj.v25.9714 https://www.unwomen.org/es/articulos/datos-y-cifras/datos-y-cifras-violencia-contra-las-mujeres https://www.cepal.org/es/comunicados/al-menos-11-mujeres-son-victimas-feminicidio-cada-dia-america-latina-caribe https://www.cepal.org/es/comunicados/al-menos-11-mujeres-son-victimas-feminicidio-cada-dia-america-latina-caribe https://www.unicef.org/lac/informes/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-el-caribe https://www.unicef.org/lac/informes/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-el-caribe https://lac.unfpa.org/es/news/costo-embarazo-en-adolescentes-america-latina-y-caribe liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 3 to address this, i will analyze three cases: “v.r.p., v.p.c., and others vs. nicaragua” (2018) (hereinafter “v.r.p.”), “guzmán albarracin vs. ecuador” (2020) and “angulo losada vs. bolivia” (2022). the cases v.r.p. and ángulo losada involve sexual violence against a girl by a family member and the stereotyped responses in access to justice. guzmán albarracín deals with violence perpetrated by a member of the educational community who held a position of responsibility over the girl. it is important to highlight the significance of the “v.r.p.” case since it was the first to determine a state’s responsibility for violence against a girl in a context of systemic sexual violence.11 this is a study based on documentary analysis of the three cases in which the court has addressed sexual violence against girls. firstly, i will review the facts of these three cases. secondly, i will review the standards established by the iacthr, focusing only on the advances and pending issues. thirdly, i will discuss the reparations that were ordered, examining their potential for transformation and the challenges associated with their implementation as a means of ensuring non-repetition. finally, i will conclude that although it is possible to identify some inconsistencies in the argumentation of the court which need to be revised such as the conceptualization of institutional violence, autonomy and consent, torture and inhuman acts, among others, there exist some clear standards to resolve cases that involve acts of sexual violence against girls in the region. 1. facts of the cases of sexual violence against girls in the iacthr the court has reviewed this violence on three recent occasions.12 all of these cases involved girls who were victims of sexual violence by a family member or an authority figure. in all three cases, local authorities failed to provide a response in line with human rights standards, when analyzing them from either women’s or children’s perspectives. another characteristic common to these cases is that the girls lived in poverty. these cases show the systemic nature of sexual violence against girls in the region, so an intersectional approach should have been applied when proposing, arguing and granting reparation measures.13 in 2000, 8-year-old v.r.p. was raped by her father. her mother v.p.c. became aware of the situation when she took her daughter to a medical center because she reported feeling pain in the anal region. it was found that the child had injuries consistent with rape and that she had been infected with the human papillomavirus (hereafter hpv). as a result, her mother reported her father to the authorities for the crime of rape against her daughter. as part of the criminal investigation, the girl had to undergo a medical examination in 11 in fact, the first case on the subject that marks a break in the court’s jurisprudence on gender violence is “campo algodonero vs. méxico” (2009) where two of the victims were girls. nevertheless, i left this case aside because, although the court mentions children’s protection, the argument focuses on the situation of women in general. about this case, see abramovich, 2010; acosta lópez, 2012. 12 about the inter american commission of human rights works, see https://www.oas.org/es/cidh/ jsform/?file=/es/cidh/r/dn/mandato.asp 13 this phenomenon has been extensively documented (see introduction). https://doi.org/10.17561/tahrj.v25.9714 https://www.oas.org/es/cidh/jsform/?file=/es/cidh/r/dn/mandato.asp https://www.oas.org/es/cidh/jsform/?file=/es/cidh/r/dn/mandato.asp where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 4 which she was revictimized through various humiliating acts and degrading comments.14 the doctors confirmed that the girl had been raped; although the rape was proven, the father was released and declared innocent by the jury. during the trial, the defense attorney provided the members of the court with a wooden-colored envelope containing a “letter” that was meant to be read privately. despite the girl’s mother’s claims, the case was later closed due to lack of other remedies.15 in 2018 the iacthr ruled that the nicaraguan state was responsible for multiple violations of v.r.p. rights, including the right to personal integrity, the rights of the girl, the right to equality before the law, the principle of nondiscrimination and judicial guarantees (arts. 5.1, 8.1, 11.2 and 25.1 in relation with arts. 1.1 and 19) as well as art. 7.b of the belém do pará convention. in the case guzmán albarracín, between her 14 and 16 years of age, paola guzmán albarracín suffered acts of sexual violence perpetrated by the staff of the state school she was attending, a public all-girls secondary school. the school´s vice-rector forced her to have sexual intercourse with him as a condition for passing her courses for almost two years. two days after turning 16, and when her mother was summoned by the school authorities for reasons not linked to the vice-rector´s abuse, paola died by suicide with “devils” (pills that contain phosphorus). after the girl spent several hours in the school first aid room,16 her mother, who found out about the situation through a phone call from paola’s friends rather than from the school authorities, took her to the public health clinic where she finally died. her friends even suggested that paola had been pregnant, and that the vice-rector had asked her to have an abortion at the hands of the school doctor, who had also demanded sexual favors from paola as a condition for performing the procedure. although the acts of violence suffered by paola were known to school staff, including the rector, they did nothing to protect her. after paola’s death, the investigation and judicial process was beset by serious delays and irregularities related to stereotypes regarding her actions and her relationship with the vice-rector since she was considered to have seduced him; the incident was thus considered statutory rape and not sexual harassment. during the investigation, several of paola’s classmates stated that they had been intimidated by the school staff in order to protect the vice-rector. this is the first case of sexual violence in an educational institution that the iacthr has adjudicated, finding the ecuadorian state responsible for violating rights related to the obligation to guarantee a life free from sexual violence in educational settings.17 14 for example, during the medical examination ordered by the judge, three doctors, a psychiatrist, the judge, and a court official were present. the examination proceeded despite the girl’s objections, as she expressed experiencing severe pain due to the force exerted by the doctor. later, she was forced to reenact the events in the very place where she had suffered violence at the hands of her father. 15 the case was submitted to the inter-american commission in october 2002 and received its merits report in 2016. it was concluded that the state was responsible for “the violation of the rights established in articles 5, 8, 11, 19, 24, and 25 of the american convention, in relation to article 1.1 of the same instrument; and article 7.b) of the inter-american convention to prevent, punish and eradicate violence against women”. due to the lack of response from the state of nicaragua, the commission referred the case to the court. 16 the authorities in charge told her to stay there, praying and apologizing. 17 specifically, arts. 4.1, 5.1 y 11 achr, art. 13 san salvador protocol, in relation with arts 1.1 y 19 achr and arts. 7.a, 7.b and 7.c belém do pará convention. https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 5 in 2022, the iacthr resolved the case “angulo losada vs. bolivia”. brisa angulo losada was 16 when a cousin ten years her senior began raping and sexually abusing her. the cousin lived with her family and had earned their full trust. he also beat her so that she would not report him. brisa experienced severe physical and psychological trauma but never reported the events to her parents out of fear of consequences. she even attempted to take her own life, as she saw no other way out. as a result of these events, she was depressed and suspended her studies. following the report made by brisa’s father against her cousin, she was subjected to multiple gynecological examinations that revictimized her and caused further distress. for example, the forensic medical examination was conducted by a male professional, accompanied by medical students in training, despite brisa expressing discomfort with the situation; she was also not allowed to be accompanied by her mother. additionally, she was ridiculed by the medical staff.18 at trial brisa’s testimony was constantly questioned, and she was blamed for seduction, among other things.19 the final criminal proceedings could not continue because the accused fled to colombia. despite the extradition request, colombia refused to turn him over to the bolivian authorities, arguing that the criminal offense was time-barred. in this case, the iacthr ruled that the bolivian state had violated several of brisa’s rights,20 developing consent standards as the central axis of the crime of sexual violence. these are not isolated cases, but rather reflect the structural violence that girls suffer in their families, schools, and in seeking access to justice. for this reason, the standards developed by the court are relevant and should be analyzed. 2. human rights standards of the cases in these cases, the court developed a body of standards regarding how states must address sexual violence against girls. some positive aspects of these developments include the recognition of the role non-state actors and institutions play in perpetrating or enabling sexual violence, as well as the advancement of intersectional and structural analyses. these developments represent significant progress in understanding the complexities of sexual violence, especially in terms of the existence of various factors which intersect and contribute to the issue. however, there are also certain limitations. for instance, there is often not sufficient conceptual precision when terms like “institutional violence” and “torture or inhuman, degrading treatment” are introduced. additionally, while the court 18 for example, during the examination, brisa asked the doctor if the students could leave, to which he laughed and called her “ridiculous.” the students also laughed and proceeded to open their legs while the doctor conducted the exam. brisa cried but was ignored. 19 for example, the prosecutor confronted brisa, by saying: ‘[y]ou didn’t tell anyone after he raped you the first time, right? are you sure you didn’t want to be raped? because it would be very strange not to tell someone that you were raped,’ ‘[i]f you keep telling this, you’re going to destroy your family and his,’ and ‘[i]f you’re lying, i will make sure you go to jail. what you’re doing is very dangerous”. 20 specifically, for the violation of the rights to personal integrity, judicial guarantees, private and family life, the rights of the child, equality and judicial protection, as enshrined in the american convention (arts. 1.1, 5.1, 8.1, 11.2, 19 and 25.1 achr); and for the failure to fulfill the duties of heightened due diligence to prevent, investigate, and punish violence against women, as well as to establish fair and effective legal procedures with a gender perspective, as set forth in the belém do pará convention (art. 7.b) and 7.f)). https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 6 has made great strides in recognizing the need for broader societal changes, there remains a need to focus not just on criminal responses but also on other public policies that reduce sexual violence in the long term. five of the most important standards are: judicial guarantees, protection and due diligence reinforced by gender and age; sexual violence from a structural approach; consent in sexual offenses against girls; institutional violence in the investigation and the existence of torture or cruel, inhuman or degrading treatment. 2.1. the judicial guarantees, judicial protection and lack of due diligence reinforced by gender and age in the criminal process for rape the court had already developed standards regarding the obligation of states to guarantee due diligence in cases of violence against women (liebowtiz and goldscheid, 2015; malaihollo and lane, 2024). according to art. 7.b of the belém do pará convention, investigations related to women should be carried out as accurately, promptly, and comprehensively as possible, not revictimizing or stereotyping the victim, among other requirements. but specifically, in the v.r.p. vs. nicaragua case, the court also understood that this due diligence had to be intensified because the victim was a child. thus, the court applied the standard of special protection for girls, by virtue of the application of the convention on the rights of the child (specifically, arts. 2, 3, 6 y 12), which implies that “state authorities must take particular care in the development of investigations and processes at the internal level, as well as when adopting protection and support measures during the process, and after it, in order to achieve the rehabilitation and reintegration of the victim” (par. 157). consequently, the participation of girls in a process should not occur under the same conditions as those of an adult; in fact, children’s abilities should be considered during their participation in the investigation (par. 205 and 207). this implies creating the appropriate conditions to enable girls, boys, or adolescents to take part in the criminal processes effectively. it also involves, among other considerations, ensuring, when necessary, the required support (legal, technical, medical, psychological, or whichever might be appropriate) and preventing them from being subject of physical evaluations. this standard of enhanced due diligence was applied in the following two cases but going even further by focusing on and adding at least two rules regarding a) the investigation of the facts within a reasonable time frame, and b) the avoidance of stereotypes in the investigation. a) regarding the time of the investigation, in the v.r.p. case, the court applied the general rules concerning procedural delays: a) complexity of the matter; b) procedural activity of the interested party; c) conduct of the judicial authorities; and d) the impact on the legal situation of the person involved in the process, understanding that the judicial investigation, especially during the appellate stage, had involved an unjustified delay (par. 275 et seq.). the court understood that the lack of adequate response by the judiciary in individual cases of violence against women leads to greater degrees of impunity and facilitates a favorable environment for the recurrence of such acts. in fact, in the case v.r.p. the court held that the delay in the investigation of cases of gender violence “sends a message according to which violence against women can be tolerated and accepted, which favors its perpetuation and the social acceptance of the phenomenon, the feeling and sensation of insecurity of women, as well as their persistent distrust in the system https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 7 of administration of justice. said inefficiency or indifference constitutes discrimination against women in access to justice” (par. 291). in this way, the court makes clear the role that the administration of justice in a reasonable time plays as a key actor in the eradication of violence against women. however, in angulo losada v. bolivia’s case, the court strengthened this obligation. it held that the time elapsed since the formal complaint was filed until its resolution demonstrated that the case was handled over a period of time that far exceeded what could be considered reasonable (par. 126). it also used the argument of the obligation of due diligence and access to justice from the perspective of childhood and gender: the court emphasized that, since the criminal proceedings involved a girl who was a victim of sexual violence, the judicial guarantee of a reasonable time should have been applied by acting “without delay” (par. 127). this was even more important considering that the excessive time taken to obtain a final judgment was not due to the complexity of the case or the procedural actions of the alleged victim or the accused, but rather to the poor handling of the case by the judicial authorities (par. 128). although the court did not provide a clear definition of what was meant by “without delay” it showed that the argument of complexity was not a compelling one given that the case involved only one victim and one identified alleged perpetrator. this situation prevented brisa from obtaining the swift proceedings she was entitled to, thereby violating her right to a remedy within a reasonable time (par. 132). in this sense, the angulo losada case constitutes an important step forward on that path (santos pérez, 2024). b) regarding stereotypes,21 since the cotton field v. méxico case, the court has been developing the analysis of gender stereotypes in cases of violence against women (tramontana, 2011; undurraga, 2017; gauché, 2020a, ronconi, 2022). in the three cases under analysis here, the court reiterated that girls, boys and adolescents are considered more vulnerable to human rights violations. this is determined by different factors, such as age, the individual conditions and their degree of development and maturity, thus applying the concept of “intersectional inequality”.22 in this sense, v.r.p.’s case is important because it is the first which shows that this applies to sexual violence in the family environment, and that children are especially vulnerable in this regard. in the case of girls, this special vulnerability can be framed and exacerbated by factors of historical discrimination that have led to women and girls’ suffering higher rates of sexual violence, particularly within the family (par. 156). the concepts of stereotypes and intersectional inequality was revisited and applied in the guzmán albarracín and angulo losada cases to determine 21 stereotypes imply a generalized view or preconception about the attributes or characteristics of the members of a particular group or about the roles that those members must fulfill, but not considering the individual abilities, needs, desires and circumstances of each member in particular (cook y cusack, 2009; ghidoni and morondo taramundi, 2022). 22 this concept was developed by the court in the case “gonzales lluy vs. ecuador”. it was developed by feminist scholars, particularly thanks to the work of kimberlé crenshaw (1989), who highlighted how white feminism and antiracism were leaving black women marginalized. in this regard, crenshaw (1989; 1991), merry (2006), and others. on the developments of the court on this issue see gauché and bustos, 2023; pou giménez, 2021; bórquez and clérico, 2021, serrano guzmán, 2021. https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 8 the concrete obligations of states when preventing, investigating, and sanctioning acts of sexual violence against girls. in the guzmán albarracín case, the iacthr began to address the issue of intersecting stereotypes (bórquez and clérico, 2021), focusing on both gender and. the court identified the presence of stereotypes in two key areas. first, within the judicial system, it found that the investigation had taken place in the context of a discriminatory legal regime plagued by gender-based stereotypes and prejudices.23 in fact, the superior court of justice of guayaquil, had considered that there was no crime of “sexual harassment” since it was not the vice-rector who “had chased” paola, but on the contrary, it had been she who had requested “his teaching favors” thus representing the “principle of seduction”. the same decision understood that the vice-rector’s behavior constituted only “statutory rape” since in this crime, the perpetrator’s seduction was aimed at “achieving consent and carnal copulation, with an honest woman” which for this court paola did not represent (par. 190). this comprised a biased analysis in several aspects. firstly, this decision held that paola, a girl, was responsible for acts of seduction that had provoked the vice-rector. as a consequence of this understanding, the act of violence was not analyzed as sexual harassment and the perpetrator was not considered responsible for it. furthermore, paola’s honesty was questioned because her behavior wasn’t what was expected of an “honest woman”. thus, in this case, the iacthr identified that gender stereotypes were present when the vice-rector’s conduct was judged and consequently developed valuable standards on the role that stereotypes play in the administration of justice. second, the iacthr recognized gender stereotypes in the normalization of acts of violence within the educational system. it held that the educational community deemed paola as a seductive teenage girl, consequently enabling the abuse of power and the exploitation of a relationship of trust, naturalizing the perpetrator’s conduct that was, in fact, inappropriate par. 51 and others). in this sense, the guzmán albarracín case constituted a very important step on that path. the same was later analyzed in the angulo losada case, in which the court made it clear that a range of combined stereotypes adversely influenced the investigations and trial. at the local level, various authorities (such as the prosecutor and defense attorneys) had questioned the victim’s conduct, claiming that she was not telling the truth and had not resisted the abuse by the perpetrator, thus doubting her behavior and labeling her as a “seductive woman” (par. 82) this was reflected in the prosecutors’ questions, expert opinions, and evidence linked to issues that are not related to the reported facts but rather to the victim’s personality and sexual history (piqué, 2017). the establishment of standards by the court facilitated progress in understanding the implications of using stereotypes in the administration of justice, not only regarding gender but also age, since this use creates a particular situation that restricts access to justice 23 these facts implied violations to the provisions of the convention of belém do pará (cons. 191 et seq.). see, arena, 2022. https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 9 2.2. sexual violence from a structural approach guzman albarracin is significant among the three cases because the court names and critiques structural issues. the iacthr held that “the facts of the case occurred in a public educational setting that not only lacked measures to prevent acts of sexual violence, but also normalized such conduct” (par. 47). therefore, this makes it evident that paola’s case was not isolated but rather a structural situation of violence (gauché, 2020b).24 in trials, violence is often decontextualized and reduced; it becomes dematerialized (piqué, 2017; bodelón, 2015), preventing a full understanding of the complexity of the phenomenon, which directly impacts on the reparation measures adopted. generally, in criminal trial, only the state, the victim, and the perpetrator are involved. however, in this case the court considered that the context was crucial, as it broadened the perspective on the rights violations. the consideration of context allowed the court to explicitly justify the connection between the declared violations and the ordered reparations. this was then considered beyond this individual case. the iacthr considered that, in guzmán albarracin case, there was a violation of the girl’s right to a life free of sexual violence in an educational environment. this implies that the “different alleged human rights violations are related in such a way that, at least in part, they generate one another. that is to say, there is a close relationship between various human rights involved in acts of sexual violence and the obligations corresponding to a woman’s right to a life free of violence and those related to the protection of girls and boys and the right to education” (par. 107). this marked an evolution from the standards established in the other cases, showing the court’s greater recognition of rights such as the obligation of the state to prevent girls and adolescents from suffering sexual violence at school and to create safe educational environments. it stated that since boys and girls tend to be more likely to suffer acts of violence, coercion and discrimination, states must 1) establish actions to monitor the problem of sexual violence in educational institutions and develop policies for its prevention and 2) create and implement simple, accessible and safe mechanisms so that these acts can be reported, investigated and punished (par. 120). i will come back to this point later on. 2.3. consent in sexual offenses against girls unlike in previous cases, in “angulo losada vs. bolivia” the iacthr developed consent standards as the central axis of the crime of sexual violence, regarding it from an intersectional perspective involving gender and age. it stated that “for a rape to be perpetrated, proof of threat, use of force or physical violence should not be required, it is sufficient for this to be demonstrated, by any suitable means of proof, that the victim did not consent to the sexual act” (par. 145), especially when there are inequalities in which 24 see gauché marchetti (2020b); martínez coral and martínez (2021). https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 10 the perpetrator is provided with power by institutional or work environments or by the possibility of depriving the victim economically, among others (par. 146) this also represents progress over “v.r.p.’s” and “guzmán albarracín’s” cases since in the first one, “consent” was not discussed because the victim was an 8-yearold girl, thus incapable of giving consent and in the second the court did not refer to consent but worked instead on the stereotypes that appeared when denouncing, judging and sanctioning the vice-rector’s conduct with respect to paola. in conclusion, the “angulo losada” case represented a great advance in terms of violence against girls and adolescents in line with the progress made at the regional level. in this sense, in general recommendation no. 3 the mesecvi committee of experts began to argue that consent cannot be inferred from any word or conduct of the victim when force, threat of force, coercion or taking advantage of a coercive environment has reduced their ability to give free and voluntary consent. nor can it be inferred from any words or conduct of the victim when she is unable to give free consent or from the victim’s silence or lack of resistance to sexual violence. 2.4. institutional violence in the investigation institutional violence has been understood as those violations of rights for which the state is responsible, either through direct action or through omission of an action that is its responsibility (bodelón, 2015).25 although this concept was not new for the court, in v.r.p. case it concluded that the state not only did not comply with the higher due diligence and special protection standard when investigating child sexual abuse, but perpetuated additional forms of violence. thus, the court considered that the girl suffered double violence: on the one hand, sexual violence by a non-state agent (her father); and, on the other hand, institutional violence during the criminal investigations, in particular, following the forensic medical examination and the reconstruction of the events which involved acts of re-victimization of the victim by the state. it therefore maintained that the state had become the “second aggressor” taking into account the definition given by art. 7.b) of the belém do pará convention. this is framed within the concept of institutional violence. this case is significant because, although the court had previously applied the concept of institutional violence only to perpetrators within security forces (soldiers),26 here it extended the concept to the judicial institution, referring to the abuses the girl 25 in this regard, the belém do pará convention refers to violence perpetrated by the state or its agents wherever it occurs. in turn, recent laws enacted in the region aimed at guaranteeing a life free of violence for women explicitly recognize institutional violence as a form of violence. in general, it encompasses any act or omission carried out within the scope of a public function that seeks to obstruct women’s rights. see, for example, article 6.6 of law 21.675 (chile); article 6.b of law 26.485 (argentina); and article 18 of the general law on women’s access to a life free of violence (mexico). 26 for example, in the case of sexual torture against indigenous women by soldiers, “fernández ortega et al. vs mexico” and “rosendo cantú and another vs. mexico”, both from 2010. https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 11 suffered during the investigation. nevertheless, the court did not provide a definition of what is meant by institutional violence, neither its scope and limits. following this case, the court also recognized the existence of institutional violence in the angulo losada case, by taking into account the re-victimizing acts carried out by state authorities (both forensic doctors and judicial authorities) throughout the investigation. but again, in this case it did not provide further details about its scope. thus, court expanded scope of institutional violence to include a range of state agents, but institutional violence remains lacking a clear definition. nevertheless, in the guzmán albarracín case, the court did not consider the events as institutional violence, thus showing the limits of this concept. in this case, a girl was sexually abused by the vice-rector of a public school, and the school staff was aware of the “relationship” that existed between them. so, paola guzmán albarracín’s right to a dignified existence was violated, fact that was closely linked to her suicide. although the court acknowledged that the direct assaults on the girl’s rights and the institutional tolerance of such acts had evident harmful consequences for her, it did not explicitly refer to this as institutional violence nor did it condemn the state on that basis. this leaves the door open to the question of whether public schools, like any other state institution, can constitute a source of institutional violence. it is clear that in this case, the violence was exercised by a person in his role of vice-rector of the school, and the violence was possible due to his powerful position within the institution, as he used his authority to abuse the girl. it seems that the court applied a narrow concept of institutional violence, since it did not, for example, extend to school authorities. the explicit recognition of institutional violence is essential from both a legal and political perspective. naming this particular form of violence makes it possible to shed light on structural patterns of harm that are often framed as mere negligence or individual failures (farmer, 2004; yamin, 2016). however, when harm originates from or is perpetuated by state institutions—whether through direct action, omission, or systemic discriminatory practices—we face a specific type of violence that must be identified and addressed in all its complexity. the court’s clear conceptualization of what is meant by institutional violence is necessary to give greater coherence to the standards it has developed, especially in cases in which it is exercised against boys and girls. in this sense, and especially in the iacthr, some questions have been posed when thinking about this conceptualitation (parelman and tufró, 2017) such as: which acts are considered institutional violence?, how are they distinguished from other types of legal qualifications?, who can be active subjects of institutional violence?, is it only about actions or also about omissions?, why the acts paola guzmán albarracín was subjected to were not considered acts of institutional violence but those suffered by v.r.p. and angulo losada were? i understand that these questions and possibly others must be raised when cataloging acts of institutional violence, especially taking into account the standards that the inter-american court has set for the region. 2.5. the existence of torture or cruel, inhuman or degrading treatment in both v.r.p. and angulo losada cases the court determined that the facts implied the violation of personal integrity (art. 5.1 achr), specifically, involving cruel, inhuman and degrading treatment (in light of art. 5.2 of the achr, hereafter cidt). however, https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 12 cidt was not recognized in paola’s case although it was expressly requested that the state be condemned for violation of art. 5.2.27 in spite of recognizing the seriousness of the acts of violence against paola, which were reflected in her suicide, the court stated that the evidence was insufficient to satisfy all the requirements to recognize these violations of her rights. however, the court defines torture as “a particularly serious and reprehensible attack to the human dignity, in which the perpetrator deliberately inflicts a severe pain or suffering or exercises a method aimed at nullifying the personality or diminishing the physical or mental capacity of the victim, who is in a situation of vulnerability. consequently, these acts are done with a specific purpose” (par. 152). furthermore, the court added that “categorizing an act as torture requires the utmost rigor” (par. 152). however, the court did not analyze the elements of torture in line with its own precedents/ case-law28 regarding intentionality, purpose, and severity (pérez and perico, 2021). the acts committed by the vice-rector against paola, as well as the subsequent treatment of the case by the local justice system, are not substantially different from situations previously recognized as torture. therefore, the court’s interpretation calls for further clarification greater rigor should be demanded in cases of girl victims of sexual violence than what has been maintained in other cases that do not involve girls,29 so as to avoid androcentric or adultcentric bias. to do this, the characteristics of the acts of violence must be considered, such as the duration, the method used or the way in which the suffering wase inflicted, the physical and mental effects that it could cause, as well as the conditions of the person who suffered said acts, including age, sex and health status, among other personal circumstances.30 mackinnon (2007) warns that gender biases also extend to international law, noting that domestic violence, rape, and sexual abuse are not considered forms of torture despite fitting into the concept aforementioned. she argues that the only difference between these types of violence and others is that they have a clear gender component unlike other acts that have been considered torture which affect both men and women. nash (2019) maintains that it is relevant for both the effects of the victims and the processes arising from these events, that the acts of torture be classified as such, instead of being considered an affectation of personal integrity. these cases represented important steps in setting standards regarding sexual violence against girls. however, they focused strongly on the state response to the case of violence once they were reported and were being investigated but not on the efforts made to prevent said sexual violence against girls. this is relevant because if the aim is to reduce or eliminate violence against girls, the estate’s response should not come only once the act has been perpetrated. this brings me to the next point. 27 the distinction between torture and cruel, inhuman, and degrading treatment is not straightforward. on this matter, see sferrazza-taibi and ceballos-schaulsohn, 2024 28 iacthr, case of women victims of sexual torture in atenco vs. mexico; case of lópez soto vs. venezuela, case of espinoza gonzáles vs. peru, among others. on the classification of torture in general in the inter-american court see, nash, 2019. 29 a detailed criticism on this point can be seen in pérez and perico, 2021. 30 iacthr, caso rosendo cantú and others vs. méxico párr. 112. https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 13 3. transformative remedies although the iacthr developed relevant standards regarding the scope of the obligations of states, it did not live up to its aspirations of providing transformative measures of reparation.31 in fact, the court has developed a broad interpretation of article 43 of the achr to establish various forms of reparation (correa, 2019), including guarantees of non-repetition. nevertheless, it faces some challenges, not only in the form of state noncompliance (herencia carrasco, 2011) but also in the court’s understanding of underlying, systemic issues (von bogdandy, et. al, 2024; rubio-marín and sandoval, 2011). reparative measures aim to serve not only as a mechanism to redress the harm caused by the unlawful act in the specific case, but also as an opportunity to combat the historical causes of social exclusion and violence (de greiff, 2006; rubio-marín, 2009; bolaños enriquez and quintero, 2022). reparation must therefore be transformative and emancipatory, with the intention of enabling affected groups to overcome situations of exclusion or subordination (antkowiak, 2008). this is why, through its rulings, the iacthr has ordered states to implement specific measures to guarantee non-repetition of such conduct, especially in many cases related to the need to strengthen human rights education (reyes benz, 2020). here i will focus on two measures articulated in these cases that could lead to the development of higher standards: obligations to establish protocols and obligations to provide training. a) obligations to establish protocols, in the “v.r.p” case the court established that the state has to adopt, implement, and supervise three standardized protocols, indicating the minimum requirements that must be met in cases of girls, boys and adolescents that are victims of sexual violence: (1) protocol for investigation and action during the criminal process; (2) protocol for a comprehensive approach during the medical-legal assessment and (3) protocol for a comprehensive protection of the victim (par. 381). subsequently, in the “guzmán albarracín” case, the court added the obligation to create simple reporting mechanisms (protocols) for situations of violence in educational spaces (par. 245). besides, in “angulo losada”, it also emphasized the need to create protocols similar to those established in v.r.p (par. 204). thus, protocols became a no repetition tool that the court should use in cases of sexual violence. however, the protocols provide guidelines on how to react in a specific case but do not necessarily address the structural problem of violence, especially when it has been normalized.32 thus, it is a tool that does not have a transformative spirit (ahmed, 2022) since they do not prevent situations of violence but rather indicate how to respond to them. moreover, and following tapia tapia and salao (2023), it is worth questioning 31 in this regard, the court maintained in the case “atala riffo and others vs. chile” (2012) that the transformative vocation of reparation measures implies that “they should have not only a restorative but also a corrective effect towards structural changes to dismantle those stereotypes and practices that perpetuate discrimination against the lgtbi population” (cons. 267). 32 normalized violence is understood as the “unidentified violence” occurring within educational institutions. for example, the lack of women in decision-making spaces or their less significant role in conferences, among others. https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 14 to what extent these judicial or administrative proceedings may delay the process, thus constituting a new form of violence. it is therefore not enough to simply introduce protocols to address cases of gender-based violence: these can hinder an understanding of violence as a structural issue and the development of an effective state response based in that understanding (tapia tapia et al., 2023). however, it is important to note that “angulo losada’s” case made important contributions in this regard because the court established that, after applying the protocols “the state must create a system of indicators that allow measuring their effectiveness and verify, in a differentiated manner and by gender and age, the decrease of impunity reported regarding crimes of sexual violence committed against girls, boys and adolescents” (cons. 208). this information is relevant because it is not enough to sanction protocols alone, the state must also demonstrate their effective implementation and impact in light of concrete data, so measurable results must be derived from their application. even in this case, the court established the obligation to generate statistics on sexual violence against girls, boys and adolescents which are not fragmented in different national institutions and which are publicly accessible (par. 218), as it considered the importance of the access to information for the creation of appropriate public policies aimed at preventing the repetition of acts of sexual violence against girls. this is the reason why it ordered the state to design and implement a national and centralized data collection system on cases of sexual violence against minors, disaggregating age, place of occurrence, profile of the aggressor, relationship with the victim, among other variables. this allowed the quantitative and qualitative analysis of acts of sexual violence against minors. in addition, the number of cases that were effectively prosecuted must be specified along with the number of accusations, convictions and acquittals. this information must be disseminated annually by the state so that access to the entire population as well as the confidentiality of the identity of the victims can be guaranteed (par. 218). the requests of disaggregated data33 by region, as well as by gender and age, is very relevant since undoubtedly human rights violations are biased depending on the area of the country where they occur. we must bear in mind that protocols and training programs are usually implemented in big and important cities while it is more difficult to see this in the countryside or areas far from them. b) obligations to provide training, human rights violations, especially those suffered by women and girls, are often linked to a lack of awareness among public officials. for this reason, various human rights organisms increasingly recommend training on this issue.34 with this aim, in the v.r.p. case it was established that the state should adopt and implement permanent training and courses for public officials who have 33 on the importance of measuring public policies, see abramovich and pautassi, 2010. 34 about that rodino pierri, 2015. on the un recommendations, see https://www.ohchr.org/es/resources/ educators/human-rights-education-training/human-rights-education-and-training-materials-and-resources on the use of human rights education by the iachr, see reyes benz, 2020. https://doi.org/10.17561/tahrj.v25.9714 https://www.ohchr.org/es/resources/educators/human-rights-education-training/human-rights-education-and-training-materials-and-resources https://www.ohchr.org/es/resources/educators/human-rights-education-training/human-rights-education-and-training-materials-and-resources liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 15 the first contact with children victims of sexual violence, including those who work in the justice administration system, medical professionals and forensic doctors so that they provide the appropriate treatment to these victims during medical examinations (par. 392). these training courses should also be extended to personnel belonging to the public health system. the training should be conducted from a gender and child protection perspective, aiming to deconstruct gender stereotypes and dispel false beliefs about sexual violence. as with the adoption of protocols, providing training raises some questions. firstly, it is not clear why only those officials involved in sexual violence cases should receive training; in fact, all personnel in the justice system should be educated. secondly, these measures are reactive and are only implemented once the violent incident has already occurred. states’ responses should not only address cases of sexual violence but also seek to eradicate them: if the state only focuses on the sanction of protocols or training regarding the reported actions, there is no place for awareness or prevention. in addition, in many cases, children and adolescents are not even informed or cannot identify that they are experiencing a situation of violence that can be reported35; in this sense, i highlight the progress that the “guzman albarracín” and “angulo losada” cases represent since in both pronouncements, the court focused on establishing the obligation of states to guarantee comprehensive sexual education together with protocols and training. in “guzman albarracin’s” case, the inter-american court emphasized the importance of sexual education since paola did not have tools that would have allowed her to understand the sexual violence involved in the acts she suffered nor with and neither was there an institutional system that would have provided her with support for her treatment or complaint; in fact, on the contrary, it validated, normalized and tolerated the violence referred to (par. 140). consequently, the judges understood that sexual education is a suitable tool to enable girls and boys to have an adequate understanding of the implications of sexual and emotional relationships, particularly in relation to consent and the exercise of freedom regarding their sexual and reproductive rights (par. 139). in the ‘angulo losada’ case, the court went a step further by requiring the bolivian state to incorporate suitable, timely, and relevant information into mandatory school teaching materials tailored to the maturity and psychological development of girls, boys, and adolescents (par. 215) this is intended to equip them with the tools to prevent, identify, and report acts that constitute sexual violence and reduce the risk of experiencing such violence. these materials must include information about the importance of consent in sexual relationships and about incest (par. 216). despite all these advances, it is essential to provide a more comprehensive definition of what is meant by sexual education, rather than restricting it to just a tool for preventing sexual violence. while the court adopts the concept developed by the 35 in this regard, see unicef, 2016. something similar happens at universities. in this regard, see prior and heer, (2022); jaramillo sierra and buchely ibarra (2020) https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 16 economic social and cultural rights committee (2016), it is important to emphasize that sexual education must be all-encompassing and comprise a range of pedagogical activities aimed at promoting sexual health. and sexual health should be understood as the integration of physical, emotional, intellectual and social aspects, all of which should be considered in relation to sexuality so as to promote personal and social well-being through communication and love. definitively, the goal of comprehensive sexual education is to get people prepared with knowledge, skills, attitudes and values that will empower them to realize their health, well-being, and dignity; develop respectful social and sexual relationships; consider how their choices affect other people’s well-being and their own and understand what their rights throughout life are by ensuring they are protected (unesco, 2018, p. 16). expanding this definition is particularly relevant, as there has been little progress in the implementation of policies on this matter in the region. on the contrary, sexual education continues to be approached, in many cases, from a narrow perspective focused solely on the biological aspects (ronconi, et al, 2023; martinez et al., 2025). conclusions in this work i have shown the relevant standards that the iacthr has developed regarding sexual violence committed against girls. in that sense, the ruling in the “v.r.p.” case was emblematic and transcendental because it was the first, then followed by “guzmán albarracín” and “angulo losada” cases, in which the court improved his issue. the court always emphasized access to justice and the obligation to guarantee enhanced due diligence in judicial processes but now it also focused on girls. as i argued, in a context marked by violence against women, and especially against girls, the development of these standards and the court’s work on this issue already represent a step forward. however, it is also possible to identify some inconsistencies that result in a lack of clear guidance for the states in the region. first, there is still not only a conceptualization challenge regarding what constitutes institutional violence but also uncertainties regarding when article 5.2 of the achr should be applied, specifically what is recognized as acts of torture. besides, although the court has mentioned the importance of prevention, it has not gone further in setting clear standards as regards preventing acts of sexual violence against girls. in fact, justice appears when the damage has already been caused and it can only establish procedures and reparations. however, the advances that occurred in the “guzmán albarracin” case regarding comprehensive sexual education and in “angulo losada” case regarding the importance of measuring the impact of protocols, show an advance in transforming public policies when it comes to sexual violence in the region. all the above highlights the need to continue developing higher and clearer standards for the prevention of sexual violence against girls, as they are a fundamental tool. a broader approach is needed, one that does not solely address individual cases but also seeks to change the structural and institutional dynamics that perpetuate this violence. the court could make significant progress by incorporating preventive measures, adopting a truly intersectional, feminist, and child-centered approach. this would go beyond punitive responses and foster transformations in public policies that could reduce the structural conditions allowing sexual violence. therefore, it is evident that the court must continue https://doi.org/10.17561/tahrj.v25.9714 liliana ronconi the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 17 to develop standards that not only respond to the harm already caused but also prevent future acts of violence, working in tandem with measures that transform the mentalities and attitudes that perpetuate such violence. bibliography abramovich, v. 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(2024). the impact of the inter-american human rights system: transformations on the ground, oxford university press. https://doi.org/10.17561/tahrj.v25.9714 https://doi.org/10.4067/s0718-00122024000200137 https://doi.org/10.12804/revistas.urosario.edu.co/sociojuridicos/a.13487 https://doi.org/10.12804/revistas.urosario.edu.co/sociojuridicos/a.13487 https://unesdoc.unesco.org/ark:/48223/pf0000265335 https://www.unicef.org/argentina/sites/unicef.org.argentina/files/2018-04/proteccion-abusosexual_contra_nnya-2016.pdf https://www.unicef.org/argentina/sites/unicef.org.argentina/files/2018-04/proteccion-abusosexual_contra_nnya-2016.pdf https://www.unicef.org/lac/media/29031/file/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-el-caribe-2015-2021.pdf https://www.unicef.org/lac/media/29031/file/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-el-caribe-2015-2021.pdf https://www.unicef.org/lac/media/29031/file/violencia-contra-ninos-ninas-y-adolescentes-en-america-latina-y-el-caribe-2015-2021.pdf where have girls been? lessons learned and challenges in the agenda for combating sexual violence in the inter-american... the age of human rights journal, 25 (december 2025), e9714 issn: 2340-9592 doi: 10.17561/tahrj.v25.9714 22 yamin, a. (2016). power, suffering, and the struggle for dignity: human rights frameworks for health and why they matter, university of pennsylvania press. inter-american court jurisprudence case of angulo losada vs. bolivia. judgment of november 18, 2022 (preliminary objections, merits and reparations). case of atala riffo and girls vs. chile. judgment of february 24, 2012 (merits, reparations and costs). case of fernández ortega and others vs. mexico. judgment of august 30, 2010 (preliminary objection, merits, reparations and costs). case of guzmán albarracín and others vs. ecuador. judgment of june 24, 2020 (merits, reparations and costs). case of rosendo cantú et al. mexico. judgment of august 31, 2010 (preliminary objection, merits, reparations and costs). case v.r.p., v.p.c. and others vs. nicaragua. judgment of march 8, 2018 (preliminary objections, merits, reparations and costs). case of gonzales lluy et al. vs. ecuador. preliminary objections, merits, reparations and costs. judgment of september 1, 2015. series c no. 298. case of the “street children” (villagrán morales et al.) vs. guatemala. reparations and costs. judgment of may 26, 2001. series c no. 77. case of fornerón and daughter vs. argentina. merits, reparations and costs. judgment of april 27, 2012. series c no. 242. case of ramírez escobar et al. vs. guatemala. merits, reparations and costs. judgment of march 9, 2018. series c no. 351. case of gonzález et al. (“cotton field”) vs. mexico. preliminary objection, merits, reparations and costs. judgment of november 16, 2009. series c no. 205. case of women victims of sexual torture in atenco vs. mexico. judgment of november 28, 2018 (preliminary objection, merits, reparations and costs). case of lópez soto et al. vs. venezuela. merits, reparations and costs. judgment of september 26, 2018. series c no. 362. case of espinoza gonzáles vs. peru. preliminary objections, merits, reparations and costs. judgment of november 20, 2014. series c no. 289. received: 11th november 2024 accepted: 17th june 2025 https://doi.org/10.17561/tahrj.v25.9714 where have girls been? lessons learned and challenges in the agenda for combating sexual violence introduction facts of the cases of sexual violence against girls in the iacthr 2. human rights standards of the cases 2.1. the judicial guarantees, judicial protection and lack of due diligence reinforced by gender and 2.2. sexual violence from a structural approach 2.3. consent in sexual offenses against girls 2.4. institutional violence in the investigation 2.5. the existence of torture or cruel, inhuman or degrading treatment 3. transformative remedies conclusions bibliography inter-american court jurisprudence old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 1 old age as a “new frontier” of (spatial) justice maria giulia bernardini* abstract: due to ongoing demographic changes, old age is receiving increasing attention, to the extent that it is considered a “new frontier” of justice, with spatial justice being one of the more recent areas of interest within the legal sphere. the article aims to explore the relationships among the elderly, rights, and space, particularly concerning the urban dimension of the latter. the analysis is preceded by a brief account of the historical significance assumed by old age in philosophy and law, at the intersection of which legal philosophy is situated. keywords: elderly, old age, spatial justice, urban space, independent living, human rights. summary: 1. introduction. 2. old age between philosophy and law. 3. spatial justice for the elderly: spaces of (mis)recognition. 3.1. confinement, ‘expulsion’ and ambiguous recognition. 3.2. toward agefriendly (urban) spaces. 4. ways forward. 1. introduction in de senectute and altri scritti autobiografici, norberto bobbio clearly affirmed that “[o]ld age is not an academic subject” (bobbio, 1996: 17). at that time, bobbio’s position – which later changed as a consequence of his “affective turn” (greco, 2022: 167) – was not so strange: for a long time, old age has not been considered a relevant theme in legal philosophy, and in cases where it has been taken into consideration, the perspective adopted has been mostly autobiographical (see, e.g., waldron, 2017). yet, as martha nussbaum recently observed (nussbaum, levmore, 2017: 61), after disability, nationality and species membership, nowadays old age may be considered a new “frontier of justice”, and its relevance (also) within legal philosophy cannot longer be denied. indeed, the enormous changes in human longevity and population demographics, which has for some time been a distinctive feature of the contemporary world, are widely recognised as one of the most insidious ‘challenges’ we have to confront,1 both theoretically and in relation to public policies. one need only consider the concept of active and healthy aging, in relation to which supranational institutions – the united nations and world health organization first and foremost – are committed to legal instruments aimed at addressing the challenges posed by the population ageing.2 * senior research fellow in philosophy of law at the department of law of the university of ferrara (mariagiulia.bernardini@unife.it). 1 in this regard, see united nations department of economic and social affairs, population division (2024). world population prospects. the 2024 revision, https://population.un.org/wpp/ and undp, human development report, human development report 2023-2024 [original data], https://ourworldindata.org/ grapher/life-expectancy-undp. 2 healthy ageing replaces the world health organization’s previous focus on active ageing, a policy framework developed in 2002, thus becoming the object of its attention on ageing in relation to the years 2015-2030. like active ageing, healthy ageing emphasizes the need for action across multiple sectors, directed at enabling the elderly to be a resource to their families, communities, and economies. amongst the most relevant documents on the issue, see united nations, world social report 2023. leaving no one behind in an ageing world; world health organization, global report on ageism, 2021 and the un decade of healthy ageing 2020–2030: plan of action. https://doi.org/10.17561/tahrj.v23.8997 mailto:mariagiulia.bernardini@unife.it https://population.un.org/wpp/ https://ourworldindata.org/grapher/life-expectancy-undp https://ourworldindata.org/grapher/life-expectancy-undp old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 2 amongst them is the adoption of an international convention on the elderly’s human rights.3 in addition to constituting a further step on the road to the “age of rights” (bobbio 1990), it would have a significant symbolic effect: the times are not far off when it has been (provocatively) asked what human rights have to do with the elderly (georgantzi, 2018), given the condition of marginalization and oppression to which they – above all where not self-sufficient – are relegated in contemporary societies, often expressed through references to ageism.4 indeed, issues related to intergenerational financial justice and welfare systems,5 as well as those concerning the symbolic and spatial ‘confinement’ and segregation of elderly individuals,6 raise questions about the equal recognition of older adults as (human) rights holders. this context supports nussbaum's assertion that old age represents a new frontier of justice: even though a visible transition of old age is occurring – “from the margins to the center” (hooks, 1984) of the legal reflection and, within it, the philosophy of law –, these issues remain pressing.7 below, through the adoption of a critical theoretical approach,8 i focus on the field of the so called “spatial justice,”9 developing some considerations on the relationships among elderly, rights, and space, particularly in reference to the urban dimension of the latter. the present introductory reflections aim at identifying a series of issues that, in my opinion, have not yet received adequate attention within legal philosophy, and therefore require a more in-depth analysis and discussion. the analysis, which is developed in para. 3, is preceded by a brief account of the relevance historically assumed by old age in philosophy and law, at the crossroads of which legal philosophy is situated (para. 2). in 3 in this respect, it is noteworthy that in may 2024, the 14th open-ended working group on ageing, aimed at strengthening the protection of the human rights of older persons, officially recognized that the international human rights system does not fully protect older people’s rights and recommended the establishment of a new human rights treaty to help address this failure. 4 on this concept, see robert butler (1969), who later (1989: 139) defined ageism as “a systematic stereotyping of and discrimination against people because they are old […]. old people are categorized as senile, rigid in thought and manner, old-fashioned in morality and skills […].” ageism can be defined as a form of structural discrimination that occurs when age is used to classify and divide people, creating harm, disadvantages, and injustices that ultimately erode solidarity between generations; in this perspective, the phenomenon does not solely affect older people, but all those who do not fit the parameter of the adult subject, to which liberal tradition refers. 5 on intergenerational justice, see menga, 2016; gossieres, 2023; with specific attention to the ageing process, cf. gossieres, 2022. 6 emmer de albuquerque green, tinker, & manthorpe, 2021; tarantino, 2024. 7 doron & soden, 2012. 8 on the approach adopted, please refer to bernardini & giolo, 2017 and 2021. 9 the expression ‘spatial justice’, that has been in use for fifty years in the social sciences, can be interpreted as a shortened expression to identify social justice issues related to space. the rethinking of the relationships between law, space, and the urban environment, as well as the redefinition of the concept of spatial justice from a legal perspective, began instead in 2010. among the prominent figures in this field is the legal theorist andreas philippopoulos-mihalopoulos (2010, 2015). on the topic, see also marcuse, 2010; pirie, 1983; soja, 2010; warf & arias, 2008. https://doi.org/10.17561/tahrj.v23.8997 maria giulia bernardini the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 3 this way, i aim to support my assertion regarding the marginalization of the elderly in legal philosophy and illuminate its various representations, which significantly impact legal policies and the ‘spatial management’ of the elderly and their rights. 2. old age between philosophy and law the idea of viewing old age as a new frontier of justice, as recently argued by martha nussbaum, highlights the cultural frameworks that have historically shaped our understanding of aging and influenced the (mis)recognition of the elderly and their rights. clearly, such paradigms have also had repercussions on spatial justice – which is premised on the idea that justice has a consequential geography to its formulation (soja, 2010: 1) – and on the presence of the elderly in the urban context. without claiming to be exhaustive, a brief foray into the path taken in philosophy and law – areas of undeniable importance for reflection within legal philosophy – may be useful to understand why the relationship between law and urban space currently seems to unfold along very different directions, as it will be clear hereafter. as for the first area, old age is often addressed throughout the course of western philosophy, even though not in a systematic way. the distinction between platonists and aristotelians – who, according to coleridge, represent the two fundamental ways of seeing the world – also defines the two main lines along which reflections on old age developed starting from classical culture: as wisdom (plato) or as decline (aristotle).10 old age begins to be a specific subject of philosophical reflection only in the 20th century, when issues related to the ontological, ethical, anthropological, historical, and social aspects of ageing emerge in the phenomenological and existential philosophy. in this perspective, old age takes on a negative connotation: it is the time of remembrance and regret, with the individual perceived and considered to be ‘behind the times.’11 in those years, simone de beauvoir provides a decisive contribution to the reflections on this subject: she denounces the multifaced systemic exclusion of the elderly, along the contradictions in its representations. indeed, in 1970 she observes with rare clarity and radicalism: the tragedy of old age is a radical indictment of an entire, mutilating system: a system that, for an enormous majority of the people within it, provides no reason to live. work and exhaustion mask this gaping absence: people find out about it when they retire. it is much more serious than boredom. once old, the worker no longer has a place on earth because in truth he never had 10 see more widely pinna, 2011. 11 similarly, in his de senectute bobbio (1996) observes that the present belongs to the young, whereas the old, who have lost their social role and appear unfit to live in a rapidly changing society, can only cling to the past, as preserved in their recollections and memory. https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 4 one: he simply did not have time to notice. when he realises, he falls into a kind of dazed despair. […] are old people really people? from the way that society treats them, it is not clear. society admits that they do not have the same needs or the same rights as other members of the community, as it refuses to give them the minimum that these deem necessary. to soothe its conscience, its ideologues have forged contradictory myths, which lead adults not to see old people as their counterparts, but as ‘others’. he is the venerable sage who sits above the worldly plane. he is the old madman who rambles and raves. whether we situate him above or below our species, we still exile him. but instead of disguising reality, we judge it preferable to radically ignore it: old age is a shameful secret, a taboo. […] this is precisely why i wrote these pages. i wanted to truthfully describe the condition of these pariahs and how they experience it. i wanted to make their voices heard: we will be forced to recognise that they are human voices. we will then understand that their unhappy lot betrays the failure of our entire civilisation: it is impossible to reconcile it with the humanist moralising of the ruling classes. […] we need to start over: our mutilating system must be radically overturned. this is why we so carefully avoid approaching the question of advanced age. that is why we need to shatter the conspiracy of silence. (de beauvoir, 197012) thus, in beauvoir’s view old age is a complex cultural construction, where biology, social status, existential condition, and ideology each play their part in the devaluation, marginalisation and discrimination of the elderly.13 in what can be considered one of the first systematic analyses of old age, the french philosopher highlights the elderly’s social inferiority, which she considers a consequence of the modern emphasis on profit and on the tendency to marginalise unproductive individuals, to be traced back to the rise of the liberal thought. in the legal field, attention to old age is more recent, to the point that nowadays the elderly are often presented as ‘new’ legal subjects.14 although some notable changes are taking place in this regard, the focus of law on old age is still largely ‘casuistic’ (i.e. linked to specific profiles) and ‘sectoral’ (i.e. mainly related to some branches of law), reflecting the limited legal significance long accorded to old age in the framework of multi-level rights protection.15 12 translation of lucie elven, founded on “le monde diplomatique”, june 2013 at https://mondediplo. com/2013/06/14age. 13 similarly, about twenty years later, the scholar in gerontology and social demography peter laslett (1989) identified five dimensions of old age (chronological, biological, social, personal, and subjective) which interact and give rise to plurality of ‘ways’ in which people live their lives, thus remarking that age is a complex multidimensional interweaving of factors where biological, biographical, and social aspects interact. 14 a partial exception is represented by the united states, where since the 1980s a specific branch of law dedicated to them was established, called elder law. see doron, 2020. 15 for an overview, see solidoro, 2023. https://doi.org/10.17561/tahrj.v23.8997 https://mondediplo.com/2013/06/14age https://mondediplo.com/2013/06/14age maria giulia bernardini the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 5 this approach may be explained by the very characteristics of age, which is a problematic legal ‘object’: thanks to its fluid character, it escapes many of the rigid conceptual categories on which the law is hinged. while law has a dichotomous logic, age – besides being a multidimensional category – is a continuum which cannot be considered a fixed characteristic of the person and cannot be categorized within a binary framework.16 however, this limited recognition may also be due to the influence of liberal thought – with its emphasis on the productive dimension – in law. indeed, it is easy to notice how, until recently, the norms regarding the elderly which are present within various legal systems have primarily focused on specific areas: retirement, social care, healthcare. for the most part, it has been about recognizing “rights to a residual sociality, or one that can be reconstructed through practices of resocialization outside of work, and also rights to everything that can lengthen, or at least ease, the downward path along those steps destined to come to an end.” (ferrari, 2022: ix) such a trend allows us to glimpse a parallel with what was observed by de beauvoir: just as in the realm of philosophy, the image of old age as a condition of physical and cognitive decline has long prevailed also in the legal sphere, accompanied by a necessary unproductivity and the perception of the elderly as an economic and social cost.17 as is well known, in recent years other cultural paradigms of old age have been proposed and have influenced the approach of multi-level institutions: in a context marked by the presence of structural inequality and misrecognition, there is an ongoing effort to promote equal recognition and respect for these individuals by deconstructing stereotypes ascribed to old age. to this aim, successful, healthy and active aging are associated with a positive image of aging, in order to promote the recognition of the elderly’s dignity and autonomy. within this latter cultural framework, the active role played by the elderly in almost every area of life is emphasised, thereby expanding the range of legally relevant issues for the elderly and overcoming the barriers of ‘sectoralism.’18 such an operation has undoubtedly beneficial effects, as it aligns with the socially desired ‘radical overturn’ advocated by de beauvoir. at the same time, it is possible to identify a significant side effect of this approach: the risk of reinforcing the myth of the ‘perpetual efficiency’ of the elderly, which can expose those who are unable to live according to the standards of successful, 16 emblematic of this difficulty is anti-discrimination law, where age does not appear as a standalone factor of discrimination, to the point that age is unanimously considered the cinderella of anti-discrimination law. furthermore, up to now it has been difficult to identify a group of individuals who could be regarded as historically and systematically disadvantaged due to age. there has rather been a prevailing tendency to refer to specific ‘times of life’ in which people are subject to forms of systemic discrimination and/or oppression, and membership in the age groups concerned is in some way linked to the concept of vulnerability (of the children, of the elderly, or of the young). in this regard, see bello, 2021; bernardini, 2022. 17 such a representation is an expression of a medicalized approach to aging, which is now being overcome, but has long prevailed in gerontology. it is primarily related to disengagement theory, now outdated, and associates old age precisely with inevitable decline. cf. cumming & henry, 1961. 18 on the differences concerning the elderly’s social participation across the european welfare regimes, see lakomy, 2021. https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 6 active, and healthy aging to a greater risk of discrimination and exclusion, particularly among those classified as non-self-sufficient and residing in social care homes. this risk is evident also when considering the complex relationships between older adults and urban space, where one can identify ideological patterns that reveal the cultural codes underlying society, which in turn influence – positively or negatively – the recognition of individuals and the protection of their rights. after a brief general introduction on the concept of spatial justice, the next paragraph will identify the key elements of these relationships. 3. spatial justice for the elderly: spaces of (mis)recognition having developed outside the realm of legal knowledge, the concept of spatial justice still presents numerous theoretical and practical challenges to the law (dussart & lerique, 2023: 58).19 however, referencing it is essential, as it reveals aspects that remain hidden in an understanding of social justice that is not spatial, and it also allows for reflection on the (spatial) relationships of injustice that exist in society (madanipour et al., 2022: 810). this last aspect is relevant in relation to the recognition of individuals and the validation of the needs and identities of those who are in a condition of vulnerability20: access to space can be considered a tool for recognizing legal subjectivities, granting access to goods, services, and resources, as well as exercising related rights. for the elderly, the convergence of two processes that have taken on particular significance in the 21st century – population aging and urbanization – has given this issue increasing and, so far, unprecedented importance. the urban context is becoming the subject of a “complex and diversified social, political, and economic demand, which looks at the city as its privileged interlocutor” (carrera, 2020: 205). thus, the city demand translates into a claim to the universal access to rights, to the extent that the right to live in the city constitutes an aspect of the broader right to a more just city, which is located at the intersection point of multiple paths, spaces, policies, and rights. the very existence of this claim suggests that urban spaces are, for the most part, inaccessible to the elderly: despite cities currently being inhabited by an aging population and this scenario also characterizing future projections,21 the urban context does not seem really age-friendly. in this regard, while it has been noted that “cities are, for the most part, spaces that are imagined and structured with a younger, working age demographic in mind,”22 it has also been pointed out that the cartesian subject has long served as 19 cf. also nitrato izzo, 2023. a preliminary phase of this emergence is represented by the works on legal geography in the 1990s, in anglo-saxon academic contexts. 20 cf. benchmarking spatial justice in policymaking, planning & design, 30 nov. -5 dic. 2023, https://justcity.org/conferences/practice/. 21 cfr. world urbanization prospects. the 2018 revision, released by the united nations department of economic and social affairs (2019). 22 see handler (2014, p. 12), who further observed: “older people are not, typically, incorporated into the mainstream of thinking and planning around urban environments”. for the same perspective, see also buffel & phillipson, 2024. https://doi.org/10.17561/tahrj.v23.8997 https://just-city.org/conferences/practice/ https://just-city.org/conferences/practice/ maria giulia bernardini the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 7 the implicit reference for the design of urban spaces.23 in short, it was presumed that urban space users naturally possessed certain characteristics, such as the ability to move independently within the physical space and the one to be, free from mobility aids and other supports. here, one can glimpse the operation of that liberal paradigm which has long influenced the representation of old age in a medical key. indeed, within this approach it was not the city that excluded the elderly, but rather they were unable to adapt to its rhythms and have access to its spaces, along with all the resulting implications in terms of isolation and exclusion. it is true, however, that the one just offered is not the only reading currently applicable to the relationship between the elderly and urban space, which on the contrary is characterized by significant internal dynamism, with opposing dynamics coexisting. i will briefly consider them below. 3.1. confinement, 'expulsion' and ambiguous recognition in line with the medical paradigm i have outlined, the first dynamic consists of a series of techniques that, through the management of space, lead to the misrecognition of the elderly. the most well-known examples pertain to those elderly who are considered nonautonomous, particularly the residents of social care homes, who in common thinking embody the inevitable dependence which is associated with the medical conception of old age. social care homes are residential solutions designed to address the loss of autonomy, cognitive decline, and the potential conditions of social isolation and related loneliness. as such, they currently play an important role in the care of elderly individuals classified as non-autonomous, to the extent that are considered an essential pillar of contemporary welfare systems. these places are also the subject of multiple criticisms, ranging from their being part of the ‘care market’ and its neoliberal logics,24 to their placement in urban space. regarding the latter aspect, there are at least two reasons for caution. the first one relates to the symbolic level. although they are located in the cities – typically on the outskirts –, these structures function as spaces of separation from the norm: as such, they ultimately conceal the subjectivity of those housed within them, hindering their recognition and inclusion, both socially and within the urban fabric. the second one concerns the protection of rights. the issue at stake is not only the distinction between public space and these particular “private spaces.”25 rather, attention to space reveals that the architecture of these structures and their internal organization can transform such places into modern ‘total institutions’ with a segregating effect, almost as if they were the contemporary ‘heirs’ of the total institutions that foucault, 23 cf. imrie, 2003. 24 in this respect, see e.g. desroches, poland, 2021; corlet walker, druckman & jackson, 2022. 25 on the political dimension of this traditional distinction, cf. tronto, 1993. https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 8 goffman, and basaglia have reflected upon so extensively (series, 2022). adopting this perspective, which is also supported by the supranational institutions,26 under certain arrangements social care homes can indeed be considered places of systematic violation of human rights. 27 the second technique of exclusion and denial involves the ‘expulsion’ from the urban context, which arises from a misalignment between the demands of the elderly for urban spaces and the offerings that cater to a different demographic group. the factors contributing to this process are many. first, gentrification pushes low-income elderly individuals to choose more peripheral and less expensive areas.28 the increase in prices and the rise of the middle-class conflict with the low purchasing power of these elderly individuals, who are compelled to leave their homes and choose, in fact, the outskirts. in turn, this choice exposes them to a high risk of ineffectiveness of their rights, as in the outskirts the availability of services and infrastructure is lower, also in the face of high demand coming precisely from the elderly. furthermore, even if they manage to find affordable housing solutions within city centres, these individuals face additional barriers. the needs and practices of the ‘new urban population’ – primarily composed of young people – are often incompatible with the rhythms and needs of the elderly. often, the ‘youthification’ of the city center leads public administrations to prioritize the needs and practices of the new urban population, thus designing the timings and spaces of the city with respect to population segments that are ‘other’ than the elderly.29 moreover, even apart from this trend, architectural and urban planning still seems to be mostly associated with the idea of a young and growing city (simpson, 2015: 14), so that the ageing of the population is leading to a real crisis already 26 in the context of the council of europe, for example, such facilities are subject to ongoing monitoring by the committee for the prevention of torture and inhuman or degrading treatment or punishment (cpt), while there is a significant body of case law from the european court of human rights related to these places (for a more in-depth analysis, please refer to series, 2022). 27 the institution is not a specific place, but a process. a recent document by the committee on the rights of persons with disabilities helps to define its qualifying elements: “there are certain defining elements of an institution, such as obligatory sharing of assistants with others and no or limited influence as to who provides the assistance; isolation and segregation from independent life in the community; lack of control over day-to-day decisions; lack of choice for the individuals concerned over with whom they live; rigidity of routine irrespective of personal will and preferences; identical activities in the same place for a group of individuals under a certain authority; a paternalistic approach in service provision; supervision of living arrangements; and a disproportionate number of persons with disabilities in the same environment.” (cf. un committee on the rights of persons with disabilities, guidelines on deinstitutionalization, including in emergencies, 9 september 2022, point 14). 28 the term gentrification refers to a complex process, or a set of processes, that involves the physical improvement of real estate, the shift from rental to ownership housing management, rising prices, and the displacement or replacement of existing working-class population by middle-class individuals. this process involves two connected but distinct phenomena: the redevelopment of a neighborhood's real estate and urban planning, and the radical transformation of its social composition through the replacement of the elderly residents. 29 on the process of youthification in relation to the urban context, see moos, 2016. https://doi.org/10.17561/tahrj.v23.8997 maria giulia bernardini the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 9 at the planning level. in addition, the weakening of neighbourhood networks and the presence of mostly mononuclear families contribute to the loneliness of the elderly, thus hindering them from living in urban centres. finally, the presence of urban planning and architectural barriers may also make it difficult for older persons access the urban space. to remedy what seems an inevitable exclusion, residential communities specifically dedicated to the elderly have also been built. ‘age-segregated retirement communities’ are one of the most well-known urban products of the “longevity revolution” (butler 2008). these gated residential communities, originally widespread in the united states30 and now also in europe31, consist in living solutions chosen independently by seniors (rectius: by a specific cohort, that of the active and wealthy ones). they are presented as more accessible, equipped with services and cultural and leisure activities, and capable of fostering the social relations of the elderly, thereby countering their isolation. as such, they are considered to promote the recognition of the elderly and their needs and inclusion. nevertheless, these places seem rather to give rise to an ‘ambiguous recognition’: the choice toward these such closed communities is made, in fact, to leave an inhospitable and non-age-friendly urban space; furthermore, it is directed to a context in which recognition takes place only ‘among peers’, that is, among the elderly. this process, far from being inclusive, seems rather a sort of self-ghettoisation: these housing solutions simply appear to shift the problem of misrecognition and lack of rights’ protection, placing it in a prestigious ‘elsewhere’, a kind of ‘golden cage’ that risks reproducing a ‘confinement logic’, instead of an inclusive one. finally, this living solution, affordable only for the wealthier classes, ends up accentuating the class division within the elderly as a social group. 3.2. towards age-friendly (urban) spaces the crisis of the medical paradigm of aging – which is in the process of being overcome but has not yet faded – and the emergence of ‘new’ aging paradigms, among which the active and healthy aging models stand out, have led to the recognition of the need to create environments (also32) suited for older adults, to ensure accessibility and usability for a broader audience. regarding the living contexts, the design solutions proposed so far – predominantly experimental in nature and aimed at promoting elderly’s recognition and ensuring their rights – exhibit some recurring characteristics. they include being located in safe areas, designed to encourage dynamic interactions with the surrounding environment and intergenerational dialogue. furthermore, housing solutions are located close to primary services and are within walking distance, while transport and infrastructure provide access to essential healthcare services and are connected to opportunities for social, economic, 30 these housing solutions were actually developed in the mid-20th century in arizona as alternatives to residential structures for elderly people; the first city to feature such characteristics, created by ben schleifer, is youngstown. 31 consider, in this regard, the europe retirement homes (king et al., 2000; huber, o’reilly, 2004). in the same perspective, there are also chains of small residential towns for elderly people, like the ones which are widespread in southern italy. 32 the inclusive city encompasses a plurality of ‘forms’ (such as the ‘safe’, ‘friendly’, ‘sustainable’ or ‘smart’ ones), each of which also expresses the desires that emanate from the various excluded subjects. https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 10 and civic participation. in this way, the aim is to promote in individuals the maintenance of autonomy, interpersonal relations and social participation. on a legal level, these changes to domestic and urban space can be brought under the umbrella of the ‘right to independent living’, a multidimensional concept that can be seen as the essential junction and point of convergence between the person's right to health, dignity, autonomy and social participation. foreseen in the international context by article 19 of the un convention on the rights of persons with disabilities (crpd) and widely regarded as applicable also to the elderly,33 the right to independent living consists of the right to live in the community, with the same freedom of choice as other individuals. to this end, state parties must ensure that these people can choose where to live and with whom, without being forced to spend their lives in a particular living accommodation. indeed, art. 19 crpd provides as a necessary guarantee the access to home-based, residential, or community support services, including personal assistance, in order to combat isolation and segregation and to prevent institutionalization from becoming a necessary choice: “[t]he historical and logical core of independent living is in the critique of segregationism.” (tarantino 2021, 27). art. 19 crpd is therefore significant both with reference to institutionalization and to the changes in welfare systems that can contribute to include the elderly. indeed, to be effective, the guarantee of the right to independent living requires both the improvement of the relationship between the social care homes and the urban context – aimed at contrasting the disempowerment of individuals – and the creation of the conditions which allow the elderly for living outside the social care homes. in short, to prevent institutionalization and promote de-institutionalization, as required by article 19 of the crpd, it is necessary to make urban space ‘suitable’ for the elderly, thereby expanding the range of choice options regarding where to live. in addition to a different distribution of services within urban space, this expansion of choice options requires the provision of housing types that better meet the needs of the elderly, such as supportive home cohabitation, intergenerational cohabitation, or independent living facilities, all aimed at acknowledging the ‘spaces of presence’ for the elderly and safeguarding their dignity and autonomy. 4. ways forward in light of what has been observed, the implementation of art. 19 crpd can be considered a tool for promoting the full cultural, social, and legal recognition of the 33 there are several reasons for this hermeneutic operation. first, the current lack of an international convention specifically protecting the human rights of the elderly has led to the crpd also being considered applicable to them, given the presence of similar needs, especially with regard to the dependent elderly. furthermore, the concept of independence is also found related to the elderly condition in other supranational normative sources, starting with art. 25 of the charter of fundamental rights of the european union. https://doi.org/10.17561/tahrj.v23.8997 maria giulia bernardini the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 11 elderly. its implementation requires abandoning the cultural conception that sees the old person as a passive receiver of assistance and care, an individual in need to be helped with a welfarist approach aimed primarily at coping with health-related needs, and recognising her as the protagonist of her own life choices. in the presence of enabling conditions, also the elderly can lead a ‘flourishing’ life. it is precisely to this aspect that is linked the ‘active’ character of ageing, which today is often reductively interpreted according to a productive and performance logic, linked primarily to the labour market. when correctly understood, the term ‘active’ in fact takes on a meaning that can be related to ‘inclusion’ and ‘participation’, both in society and in urban life.34 in turn, ensuring this participation may require decisive welfare transformations,35 aligning with contemporary demands for a community-based and proximity-based welfare system that guarantees effective access to health services, mobility and relationships. on closer inspection, the importance of these aspects has long since emerged, especially within studies that focus on the relational and vulnerable anthropology of the human beings (the care collective, 2020; urban, ward, 2020), but requires further discussion and more regulatory and public policy efforts directed towards its realisation. in this perspective, old age represents a – paradoxically – new situated viewpoint to reconsider modern cultural, legal, and political categories and promote a real cultural, social, and institutional transformation. for this reason, old age can be considered the latest and challenging frontier of justice in the critical project aimed at achieving a ‘radical’ equality where simply being human guarantees full recognition and enjoyment of human rights. “are old people really people?” de beauvoir asked in 1970. answering this question raises, today as it did in the seventies, very complex ethical, legal, and political issues. and the human right to independent living reveals how the path to the actual recognition of the elderly is only just beginning. funding i acknowledge financial support under the national recovery and resilience plan (nrrp), mission 4, component 2, investment 1.1, call for tender no. 1409 published on 14.9.2022 by the italian ministry of university and research (mur), funded by the 34 from the outset, active ageing in international public policy was precisely aimed at overcoming the idea that ‘activity’ meant mere participation in the labour market (cf. un year of older people 1999, and world health organization, active ageing: a policy framework, 2002). by following this thread, in 2006 the world health organisation launched the global age-friendly cities project, which concluded with the identification of action points to make the urban context, in the reciprocal integration between the natural and the built environment, ‘friendly’ to all ages, without the need for ex-post adaptations, due to the lack of correspondence to the model of the ‘young’ urban user (world health organization, global age-friendly cities: a guide, 2007: 72). more recently, see world health organization, national programmes for agefriendly cities and communities: a guide, 2023. 35 for example, in the italian legal system the familistic welfare model is still the most widespread. https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice the age of human rights journal, 23 (december 2024), e8997 issn: 2340-9592 doi: 10.17561/tahrj.v23.8997 12 european union – nextgenerationeu – project title the right to independent living as a new frontier of justice: older people, urban spaces and the law – cup f53d23011960001 – grant assignment decree no. 1375 adopted on 01/09/2023 by the italian ministry of university and research (mur). references bello, b.g. 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(1993). moral boundaries. a political argument for an ethics of care. new york: routledge. urban, p., ward, l. (2020). care ethics, democratic citizenship and the state. basingstoke: palgrave macmillan. warf, b., arias, s. (eds.) (2008). the spatial turn: interdisciplinary perspectives. london: routledge. received: 13th june 2024 accepted: 16th august 2024 https://doi.org/10.17561/tahrj.v23.8997 old age as a “new frontier” of (spatial) justice 1. introduction 2. old age between philosophy and law 3. spatial justice for the elderly: spaces of (mis)recognition 3.1. confinement, 'expulsion' and ambiguous recognition 3.2. towards age-friendly (urban) spaces 4. ways forward funding references examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 1 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions ekin deniz uzun* abstract: this article explores the concept of personal identity concerning refugees. the right to the individual identity of a refugee, as a person and as a refugee, is explained by considering the european convention on human rights (echr) under articles 3 and 8. to illustrate this, it uses real-life examples from cases in the european court of human rights (ecthr) that focus on refugees. the first aim is to show how states may block refugees’ entrance or misuse their identities in asylum policies, often through illegal practices or inaction. second, the goal is to lay out the complex relationship between a refugee’s identity and status within their destination country’s legal and societal systems. keywords: personal identity, identity rights, echr, ecthr, refugees, categorisations, identification. summary: 1. introduction. 2. on personal identity and the refugees’ right to personal identity. 2.1. the scope of personal identity. 2.2. refugees’ right to personal identity with links to echr articles 3 and 8. 3. pushbacks and detention infringing on refugees’ identity rights. 4. social cohesion vis-à-vis the right to personal identity. 5. how can the ecthr mitigate the tensions arising from the misalignment between law and practice that violates refugees’ identity rights? 6. conclusion. 1. introduction scholars have extensively studied the legal definition of refugees under international law (storey, 2023), the rights of refugees (hathaway, 2021), and the illegal practices of states (fiddian-qasmiyeh et al., 2014). goodwin-gill examined the conflict between law and state policies (goodwin-gill, 1999). itamar mann explored illegal state responses, particularly pushback against refugees from specific regions (mann, 2020), while thomas gammeltoft-hansen and james c. hathaway discussed the deterrence measures used against refugees (gammeltoft-hansen & hathaway, 2015). david miller identified illegal state practices as part of the “refugee selection” processes (miller, 2018). tendayi achiume linked the mentioned practices to “racial borders” (tendayi achiume, 2022). gerasimos tsourapas formulated how some states act as “refugee-rentier states” (tsourapas, 2019, p. 469). delphine rodrik examined pushback policies and how they deny refugees the right to be recognised as persons before the law, as outlined in article 16 of the united nations (un) international covenant on civil and political rights (rodrik, 2022). the aspect often overlooked in the scholarly analyses mentioned above is the refugee as an individual, precisely, their identity and right to personal identity. as shown *assistant professor dr. ekin deniz uzun, ankara yıldırım beyazıt university, school of law, public international law department. e-mail: eduzun@aybu.edu.tr. orcid id: https://orcid.org/0000-00029757-0223 https://doi.org/10.17561/tahrj.v25.9360 mailto:eduzun@aybu.edu.tr https://orcid.org/0000-0002-9757-0223 https://orcid.org/0000-0002-9757-0223 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 2 in the article’s selected european court of human rights (ecthr) cases, the conditions refugees face—such as being left without clothing or shelter or being pushed back to the place they fled from—result in the infringement of refugees’ identity. the geographical scope of the subject under analysis pertains to state parties to the european convention on human rights (echr). this article discusses the relevant asylum policies of refugee-receiving state parties to the convention and their personnels’ illegal actions that infringe upon refugees’ right to personal identity through the case law of the ecthr. this article also discusses the asylum policies of the united states of america (usa) and australia, which serve as striking examples of how an illegal state practice can contradict refugees’ rights and their right to personal identity. the analysis highlighted the usa and australia’s practices because these countries shape and influence current state trends globally regarding asylum and categorising individuals as deserving or undeserving. the people arriving in the state parties to the echr, the usa, and australia include those who have escaped impoverished, underdeveloped, or disadvantaged developing countries experiencing economic hardship, armed conflict, and political instability. they are the ones who are efficiently categorised as the others because they do not look like, talk like, think like, or walk like the individuals holding the majority in the host society. it should be acceptable to be different, provided that society acknowledges that being different does not imply danger or inferiority. yet, individuals forming the host society tend to perceive refugees as the ones who are “rightless” the “scum of the earth” (arendt, 1968). against this background, since this article aims to highlight both refugees’ rights and their rights as rights holders, readers may perceive the ongoing analysis as conflating refugee rights with the general legal problems of foreigners. most examples demonstrated in the article are about refugees whose identity rights are infringed. on the other hand, the analysis reveals a few incidents involving non-refugee foreign persons to highlight the actual approach towards the ‘others’. this way of evaluation aims to demonstrate that some states subject refugees to violent treatment who happen to be in the category of others among foreigners possessing qualities that make them outsiders. at some point, on some levels, individuals experience hardship not just because they are refugees but because they are ‘identified’ as undeserving. the unspoken traits of undeserving individuals are, in a way, described through the examples given about foreigners in general. regarding the methodological analysis employed, this article uses relevant ecthr case law to resolve the scope of refugees’ right to personal identity with links to articles 3 and 8. the selected cases describe the actions and inactions of certain state parties to the echr that violate refugees’ right to personal identity. the article examines the right to personal identity, referencing relevant international legal principles, regulations, and philosophical perspectives. it explains the rationale for including analyses from other social science disciplines, focusing on legal regulations and pertinent ecthr cases by applying eric r. wolf’s perspective. according to wolf, the world is a complex whole comprised of mutually interdependent processes, and research that breaks this down https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 3 into parts risks failing to capture the whole reality (wolf, 2013). the article also adopts wolf’s other approach as a method of analysis. wolf, in his book, talks about an imaginary traveller. the traveller lives in the 1400s. through the traveller’s eyes, wolf describes the world to his readers (wolf, 2013, p. 34). similarly, the article reveals the challenges faced by real-life refugees in today’s contemporary world, focusing on identity and its associated rights. further, as the readers can notice, the ecthr case law and scholarly analysis form the foundation of this article. this article charts relevant cases and scholars’ views to set forth the current trend in understanding refugees’ identity rights in the context of european human rights law. for this reason, the article cites scholars who have written on refugees’ rights, particularly identity rights, from various social science disciplines. additionally, it has nourished its analysis from the views of leading scholars who have contributed to this field of law since the emergence of the new era of human rights law following wwii. in that respect, this article considers refugees’ identity rights in a context when the drive towards european integration was interrupted by hitler’s ideology of uniting europe by force. therefore, it reads rights enshrined under the convention by embracing the importance of ‘individual freedom’ (weil, 1963), which highlights ‘what it takes to be a human’ and the significance of our existence through our identities. considering that the fundamentals of individual freedom were born in europe, this article also considers several works that have studied the concepts of europe and being a european. for example, this article employs étienne balibar’s approach regarding europe as a concept that is connected to cosmopolitan projects, imperial hegemony, resistance movements, colonial claims of civilisation, territorial disputes among rival blocs, and the formation of a zone of prosperity in the north mediterranean as a great power in the twenty-first century (balibar, 2004, p. 10). regarding refugees’ rights in human rights law (chetail, 2021), this article approaches refugees as rights holders as persons and as refugees. however, some states have disregarded this fact due to their asylum politics (hamlin, 2021), including employing deterrence practices (gammeltoft-hansen and hathaway, 2015). for example, hannah arendt acknowledged the illicit state practices. she described the refugees’ rightlessness by emphasising that they became stateless in a philosophical sense upon crossing the borders of the departure state (arendt, 2010). as this article explains, the refugees’ journey of escaping from persecution starts with crossing international borders and continues in the destination state. therefore, it aims to dispel the prejudice that surrounds refugees, regarding them as “homo sacer” (agamben, 1998) to emphasise their identity as human beings and holders of rights (benhabib, 2004). it seeks to “speak of the unspeakable” to reveal the humane and rational truth (steiner 2013, p. 123), as incidents show that some states subject refugees to inhuman and irrational treatments through unjustified detentions, pushbacks and discriminatory practices preventing their integration based on ‘presumed identifications’. in that respect, this article considers an uneasy tension between acknowledging the state’s rights to set the terms of admission and recognising the moral significance of refugees’ enduring presence (costello, 2016, p. 157). this article emphasises that states’ violent treatments contradict what international human rights law, particularly european human rights law, offers. european human https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 4 rights law helps us to understand which state practices are illicit and how they breach refugees’ identity rights, regulated under the echr. the article explains the claim mentioned in six parts. the article’s first part is an introduction, which outlines its central inquiry and structure. the second part explains the concept of identity and the right to possess a personal identity, linking it to the european convention on human rights (echr/ the convention). it first examines the concept of personal identity without involving refugeehood. it clarifies that various social science fields have examined the idea of identity. each field focuses on an individual’s journey of self-discovery or self-identity. self-identity is shaped by multiple layers developed through one’s perspective on life and societal influences that affect all these layers. this article adopts the definition of identity provided by tadeusz paleczny and bogdan zieliński, who define identity as a “synthesis of the relations between [people] and the world”. identity emerges as the result of “a process of the conscious adaptation of [people] to the changing conditions that surround [them]”. the conditions are shaped by biological and social factors, including “appearance, gender, race, ethnicity, age, experience and social position” (paleczny and zieliński, 2008). the article couples identity and personal, as scholars do in the book personal identity and the european court of human rights (marshall, 2022c). because the word personal highlights the individual. personal identity represents the process of forming one’s identity. once the individual understands and embraces their identity, it becomes an integral part of the person. identity formation requires a biological space for thought production. the right to personal identity affords people the space and security to exist authentically. however, as entities, persons need the ability to fulfil their capacities. such fulfilment requires legal safeguards and security. only legal protection can help individuals be their own person (marshall, 2022c). the article’s second part emphasises the importance of domestic legal regulations creating a framework for refugees and their identification and protection, which allows them to function within society and secure their rights under the law when needed. however, we must also consider international human rights law with links to the legal aspects of refugees’ identity and its protection, establishing personal identity as a fundamental right. democratic states treat international human rights as the foundation for safeguarding fundamental rights and freedoms. as a result, relevant regulations and principles of international law play a key role in shaping the right to personal identity. since this article focuses explicitly on the echr, it will further examine the rights that safeguard refugees’ identity as refugees and rights holders within the context of the convention, which is rooted in the universal declaration on human rights. as is detailed in part two of this article, the rights that shape the personal identity within the context of the echr are outlined concerning article 3 (prohibition on inhumane, degrading treatment and torture) and article 8 (right to respect for private and family life). the mentioned rights apply to anyone, irrespective of their status, including refugees. the article also acknowledges the importance of article 9 (freedom of thought, conscience and https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 5 religion) and article 10 (freedom of expression), which safeguard individuals to maintain their identity in society. the article narrows its analysis to articles 3 and 8 because it divides the journey of refugees claiming their right to personal identity into two parts: upon arrival and social cohesion, which highlights the refugee as an individual and their right to privacy in part three. part three of the article examines real-life incidents that show how the destination state violates refugees’ right to personal identity. this section discusses issues such as refugee pushback, illicit activities of state authorities in detention centres, and problems related to family reunification and the protection of children. relevant ecthr cases illustrate these incidents, which are then analysed from a legal perspective, focusing on the rights that shape personal identity under the echr—specifically, articles 3 and 8. part four examines the right to personal identity vis-à-vis social cohesion. the refugee can only function effectively in the host state’s society if the chosen methods or means align with their right to individual identity. the assertion is supported by scholarly analysis, with examples from relevant ecthr cases. the analysis instrumentalises categorisations and the “stranger danger” phenomenon to define the perception towards refugees, which can hinder their ability to integrate into society. for example, family life and culture also constitute the identity of each person (mertens, 2020). culture-based perceptions may result in social exclusion and prevent refugees’ integration. the fifth section discusses the reasons for the misalignment between law and state practices. it further examines the ecthr’s role in alleviating the tension between refugees’ rights, states’ obligations to protect them, and states’ sovereignty. in conclusion, the article highlights the states’ responsibilities to refugees (doyle, 2018). it asserts that refugees should be able to preserve their identity and assert their rights to personal identity as people deemed deserving of protection. 2. on personal identity and the refugees’ right to personal identity 2.1. the scope of personal identity how do we identify or describe ourselves? to what extent is it crucial to ensure that we belong “to a particular category or group of people”? do we “assign a particular characteristic or categorisation to” ourselves? (‘self-identify’, 2016) self-identification involves belonging to a specific category or group of people and requires self-knowledge. the school of self-knowledge gnothi seautonfrom thales to socrates was about the search for finding and understanding oneself (arıboğan and yılmaz odabaşı, 2024). human beings need the environment to know what they are, who they are like and who they differ from. identity is thus a combination of material and immaterial elements. at its centre is the human being in its pure form (arıboğan and yılmaz odabaşı, 2024). erik h erikson established a theory of development that spans one’s entire life in the ‘eight ages of man’ (erikson, 1993). erikson described identity as a process at https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 6 the core of individuals and their communal culture. therefore, there are two identities (erikson, 1968, p. 22). the two identities refer to the internal development of a person and the growth of selfhood that emerges through participation in society (gleason, 1983, p. 914): “the self is always acting in a social context in which other-selves exist” (stets and burke, 2013, 158). on one hand, a person identifies ‘what i am’. on the other hand, ‘what i am “is bound up in an account that originates in a notion of ‘what i am said to be’” (trotter, 2022). psychologists explain this as “one’s beliefs about the sort of person one is and how one differs from others” (olson, 2023). cultural and racial identities sit at the centre of one’s identity. humans are born out of other human beings. everyone is raised within a cultural and linguistic community and thus belongs to a particular culture (mertens, 2020, p. 201). religion and its accompanying institutional structures —such as the family, law, politics, art, and the economy —form a significant part of a cultural identity. racial identity is about human beings’ physical and genetic characteristics, whereas national identity is a political design that can be reproduced over time (aşkın, 2007, p. 214). there is also a legal aspect to a person’s identity: “records, issued by a statesanctioned authority, that confer legal identity through some type of individual registration or documentation that defines personal characteristics, such as birth details” (sosnowski and klem, 2023). the legal relationship is initially formed between the state and the individual who holds the citizenship. people who are not citizens would obtain legal identity if they were temporary residents or refugees. apart from varying degrees of citizenship, including quasi-citizenship, semi-citizenship, and ‘ethnizenship’, such legal identities embrace “nationality, race, genealogy, gender, sexuality, or other categories of identification” (sosnowski and klem, 2023). legal identity recognises a person before the law and preserves their dignity. as james d. fearon notes, “[s]ocial categories are bound up with the bases of an individual’s self-respect” (fearon, 1999, p. 2). states recognise individuals as persons before the law, allowing them to attach themselves to a social category and identification. this legal recognition will enable individuals to identify themselves legally and socially in ways that help them express their chosen identity—how they exist in the world. against this backdrop, vigil and abidi explain that “being a refugee is being part of a minority group within another minority group—that of immigrants” (navarro vigil and baillie abidi, 2018). in the departure state, refugees’ persecution typically arises because they constitute a vulnerable group in comparison to the larger population, such as in terms of race, religion, or gender. (lippert-rasmussen and lægaard, 2020, p. 82). then, in the destination states, people as refugees bring their vulnerabilities, which also identify them as part of a particular group. a person becomes a refugee once they cross the borders of the state from which they have faced persecution, placing their well-being and life at risk (unhcr, 1992). they should now be recognised as a right-holder crossing international borders, thus gaining refugee status and rights. upon crossing international borders, they become a https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 7 refugee entitled to rights that are recognised not only under the convention relating to the status of refugees (1951 refugee convention) but also in other prominent united nations (un) documents, including the universal declaration of human rights; international covenant on civil and political rights; un declaration on the protection of all persons from enforced disappearance; convention against torture and other cruel, inhuman or degrading treatment or punishment; convention on the rights of the child; convention on the elimination of all forms of discrimination against women. as rights holders, refugees will likely remain citizens of two or more worlds (volkan, 2017, p. 31). regarding refugees’ arrival in the asylum country, the case of üner v. the netherlands in the ecthr establishes that a state is entitled to control the entry of foreigners into its territory. the echr does not guarantee the right to enter or reside in a particular country. the contracting states also have the power to expel foreign convicted criminals (üner v. the netherlands, 2006). yet, upon departure and border crossing from where they have already faced persecution, refugees become de facto refugees, according to the united nations high commissioner for refugees (unhcr) (unhcr, 1992). although there is no universally accepted definition of persecution, drawing from literature, hathaway and foster explain that “the sustained or systemic denial of basic human rights demonstrative of a failure of state protection amounts to persecution” (feith tan and ineli-ciger, 2023, p. 801). destination states must evaluate refugees’ demand for asylum, as the non-refoulement principle obliges states to do so. any mistreatment of states to prevent refugees’ arrival or dismissal of their asylum application without running relevant procedures disregards their right to be recognised as a person before the law and their right to personal identity, as explained in the following section of this article. for example, as the court highlights in the jabari v. turkey case, the automatic and mechanical application of the five-day registration requirement for refugees disregards fundamental values enshrined under article 3 of the echr (jabari v. turkey, 2000). therefore, the asylum state’s procedures are of vital importance to refugees. after they arrive at the destination state, refugees’ social cohesion becomes evident through their recognition as persons before the law and the acquired identities they would adopt in the host state over time. in other words, the legal recognition/identification of refugee status by the destination country is crucial as refugees obtain rights based on the legal ties with the state of the asylum (hathaway, 2021). jeff crisp describes social cohesion as local integration comprising three layers (crisp, 2004). firstly, it is a legal process. refugees acquire rights progressively. the 1951 refugee convention recognised various rights, including the right to seek employment, engage in other income-generating activities, own and dispose of property, enjoy freedom of movement, and access public services such as education. over time, refugees may acquire permanent residence rights and have the opportunity to become citizens in the country of asylum. secondly, local integration can occur through an economic process. refugees must seek ways to enhance their potential through self-reliance and independence. thirdly, regional integration is a social process. refugees can only forge healthy ties with the community they inhabit if there is no fear of systematic discrimination, intimidation, or exploitation by the authorities or citizens of the host country (crisp, 2004). consequently, this process involves both refugees and the host population. https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 8 as demonstrated, all three layers of social cohesion concerning refugees are interconnected with their recognition as individuals and their acceptance, regardless of their cultural and racial identities. any treatment that contradicts this process of social cohesion and fails to consider refugees’ asylum applications undermines their identity rights. in this respect, the article discusses the concept of personal identity rights concerning refugees, focusing on the legal and moral frameworks that safeguard a person’s characteristics, which define their identity. such rights serve as a guide for refugees, host states, and their respective societies. personal identity rights for refugees serve as reminders of the unique challenges they face regarding protection, integration, and maintaining a dignified life. these rights illustrate the journeys of refugees, from persecution to their struggles in the host country. this article asserts that personal identity rights encompass the principle of noncriminalisation in instances where a refugee flees their home country without identification documents. states should not automatically reject a refugee’s asylum application simply because they come from an underprivileged third-world country or due to terrorism prevalent in their region. state personnel at reception centres must treat refugees with dignity, as personal identity rights empower refugees as agents of rights who can reach basic services such as healthcare, education, and legal aid. states must recognise refugees as individuals and as refugees since article 6 of the universal declaration of human rights mandates that states acknowledge everyone as a person before the law. what defines a refugee as a person— their unique characteristics—should not be weaponised against them as a justification for denying their asylum application. states must treat refugees with dignity, irrespective of their religion, skin colour, or language, simply because they are human beings. therefore, states should not misuse or politicise refugees’ identities for rhetorical purposes that may seek votes in upcoming elections. personal identity rights afford protection to refugees against the abuses mentioned here. ultimately, such rights ensure the unification and reunification of families, as protecting children fundamentally begins with respecting family unity. against this backdrop, this article examines the personal identity rights of refugees under european human rights law, which are vital in safeguarding refugees, including articles 3 and 8. the articles mentioned do not specifically regulate refugee matters or identity rights. however, for example, article 3 protects refugees (and anyone else, for that matter) from inhumane and degrading treatment and torture. this regulation thus shields refugees from such treatment that may arise due to their identity, which includes political beliefs, ethnicity, or religion. as a result of article 8, refugees can express their identity without regard to gender, religion, or name. these aspects allow refugees to maintain their lives in the host country with dignity, provided that the host state respects these qualities of the refugee. the assertion presented here is further elaborated below under european human rights law, with links to articles 3 and 8 of the echr. the analysis also briefly examines echr articles 9 and 10 concerning refugees’ identity rights. 2.2. refugees’ right to personal identity with links to echr articles 3 and 8 under european human rights law, fundamental rights and freedoms safeguard the right to personal identity. the rights and guarantees under the echr promote harmony, https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 9 pluralism and living together in tolerance. however, the receiving state can overlook or disregard the fundamental rights underpinning the right to personal identity. the following paragraphs will examine key rights that shape the right to individual identity, particularly those of refugees. despite our differences, we are all entitled to the rights the echr protects (marshall, 2022a). in european human rights law, jill marshall explores the development of identity rights (marshall, 2022b). based on marshall’s analysis, this article asserts that refugees’ right to personal identity can be understood by positioning them as human beings, rights holders, and refugees with recognised rights under international law. the close connection between article 3 and the right to personal identity lies in the essence of the regulation itself. article 3 of the convention enshrines one of the most fundamental values of democratic societies: civilisation. civilisation requires individuals and society to respect one another’s human dignity (council of europe/european court of human rights 2024a, para 2). human dignity is not about an elevated status (mertens, 2020, p. 59). it is an absolute inner value that all persons possess. everyone has it, irrespective of what they do and who they are. human dignity is why a person would demand respect from others and the state. torture, degrading and inhumane treatment are a direct assault on human dignity. such treatments disregard persons’ inner cores and identity, which makes them who they are. the prohibition of torture and degrading and inhumane treatment, therefore, is absolute. it means derogation from such a prohibition is not permissible even if a public emergency threatens the nation’s life, there is a fight against terrorism and organised crime, or there is an influx of migrants and refugees (council of europe/european court of human rights, 2024a). for instance, the court highlighted the jus cogens aspect of the prohibition on the regulation in its well-known cases of gäfgen v. germany [gc], 2010, § 87 and chahal v. united kingdom [gc], 1996, § 87. in the latter case, an indianborn individual who sought asylum in the uk feared being subjected to torture if he returned to india. although he posed a ‘danger’ to british society as he was involved with political groups conducting demonstrations that had a terror effect, the court ruled that due to the risk that the applicant faced in his home country – the risk of torturehe could not be sent back. the relationship between echr article 3 and refugees’ right to identity has distinctive characteristics. a refugee’s identity is a crucial factor in their vulnerability. this vulnerability stems from the unique traits that define refugees and expose them to either persecution in their home state or violence in the host state. identity can lead to persecution; for instance, one may become a refugee due to their ethnicity, religion, gender identity, or membership in a specific social group, including those with political affiliations. these attributes also serve to identify a refugee in the receiving state. they may lead to incidents that expose refugees to inhumane or degrading treatment or torture at the hands of the receiving state’s officials. such incidents tell how the states’ mistreatment towards them doubles refugees’ vulnerability. this article notes that the court has not instrumentalised vulnerability as an effective instrument for deriving an obligation for https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 10 the state parties with links to socioeconomic rights under article 3. but still, the ecthr acknowledges refugees’ vulnerability (zimmermann, 2015) as a concept under article 3 (morris, 2023). because the vulnerability emerges as a result of age, gender, religion and social ties, such personal identity traits may be the reason for state officials to increase the severity of ill-treatment. for example, the court considers vulnerability in the context of article 3 as being an asylum seeker (m.s.s. v. belgium and greece, 2011). the right to the personal identity of a refugee is closely tied to and protected by article 3 of the echr, which regulates the prohibition of torture and inhumane and degrading treatment. article 3 particularly comes into play in situations in which refugees are pushed back, subjected to summary returns or put in detention centres while receiving inhumane or degrading treatment during their stay. as discussed in the following section, pushbacks can be considered torturous, having the potential to reach the limits of crimes against humanity (kalpouzos, 2015). not only do the methods employed by the pushbacks breach article 3 in this regard, but they also contradict the state’s responsibility to protect. “the respondent state is obliged to allow the applicants to remain within its jurisdiction”; it must adequately review the refugee’s presence and “cannot deny access to its territory to persons presenting at a border checkpoint who allege that they may be subjected to ill-treatment if they remain on the territory of the neighbouring state” (european court of human rights, 2025, p. 3). nevertheless, some states continue to employ tactics that reach the level of torture to control migration and their borders, which are detailed in the following section. such methods aim to send a loud and clear message to future refugees already identified as unwanted others. however, the universal declaration on human rights in article 14 affirms that everyone has the right to seek and enjoy asylum. everyone includes anyone irrespective of their race, gender and nationality, and anyone who becomes a refugee should be ‘identified’ and treated as one. any treatment falling outside the protection granted by refugee status directly contradicts an individual’s right to personal identity. there is a link between echr articles 3 and 5. in some cases, state authorities may put refugees in confinement or detain them in airport transit zones and reception centres for their identification and registration. in relevant incidents, the court looks at the situation to understand whether the restriction on movement is severe enough to fall within the ambit of a deprivation of liberty by considering the following factors: the applicants’ situation, the applicable legal regime of the respective country and its purpose; the relevant duration of procedural protection enjoyed by applicants; the nature and degree of the restrictions (council of europe/european court of human rights 2024b,p. 9). in short, the deprivation of liberty must have a legal basis; it must be for a decent amount of time, and the detention conditions must be humane. for example, in orchowski v poland, the court held that a detainee should be given a personal space of at least three to four square metres or more (orchowski v. poland, 2009). as the ecthr muršić v croatia case established, dignified treatment at the detention centre includes outdoor exercise, ventilation availability, private https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 11 toilet use, and access to basic sanitary requirements (muršić v croatia, 2016, para. 19). state officials’ treatment of refugees in detention must align with their rights to identity as persons, which has two dimensions. first, state officials must treat persons respectfully, not based on their perceived identification with the person. international legal regulations establish that everyone deserves dignified treatment, no matter who they are and what they have done. second, once identified as such, the state must release refugees from custody. therefore, identifying their refugee status is crucial. yet, as is detailed in the following part, although state authorities recognise them as refugees, they may remain in detention centres because of their identity. what makes them who they are also leaves them vulnerable to harm. regarding the part where the article discusses social cohesion, it considers echr article 8 and other related rights under the convention. identity rights are deeply embedded in the rights related to one’s private life, protected under article 8 of the echr. as article 8(1) explicitly states, “[e]veryone has the right to respect for his private and family life, his home and his correspondence”. article 8 protects the right to personal development and establishes relationships with others and the outside world. article 8 “secures to individuals a sphere”. the sphere provides a platform for individuals to freely “pursue the development and fulfilment of their personality” (council of europe, 2024). article 8 is about tolerance and living together. tolerance and harmony are the foundation of a democratic society and the self-fulfilment of each (marshall, 2022a). refugees, like others, are entitled to these rights. we are all different in a society, and refugees bring their unique differences to the host society. refugees should be allowed to “have varying views of how [they] want to live”, just like the rest of the people in the society (marshall, 2022a). social ties between settled refugees and the community in which they live constitute private life within the meaning of article 8. article 8 recognises that a person’s social ties, belonging and citizenship form the core of a person’s identity and private life. a refugee’s right to personal identity necessitates a recognition of a right to remain and a right to a legal status (rütte, 2019). private life encompasses personal identity, including name, photo, and physical and moral integrity (council of europe, 2024, p. 54). the notion of private life is not susceptible to exhaustive definition (kiraly and dömötör v. hungary, 2017). a person’s private life and family life refer to the aspects of life within the confines of one’s home. as explained earlier, personal identity is shaped in two spheres: one aspect concerns inner development, while the other is moulded through social interaction. a person develops an inner identity shaped by family values, which applies to everyone, regardless of social status. this process necessitates privacy and protection from state interference. in the meantime, the ecthr has stated that the contracting states are under a positive obligation to adopt measures to guarantee respect for family life (marckx v. belgium, 1979). family separation violates article 8 of the echr. article 8 protects “one’s own personal inner space/inner mind, as well as a communal, arguably intersubjective, understanding of identity formation” (marshall, 2024)—the provision under article 8 https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 12 safeguards against unwanted intrusions for the person and family. for example, m.a. v. denmark in paras 137-139 stressed that the decision-making process for family reunification must sufficiently safeguard flexibility, speed, and efficiency to uphold the applicant’s right to respect family life (m.a. v. denmark, 2021). the burlya and others v. ukraine case links article 8 to article 14 (prohibition on discrimination) if the authorities fail to protect the applicants from an attack on their homes and do not investigate the incidents effectively (burlya and others v. ukraine, 2019). for example, in the uk, in the summer of 2024, racist riots erupted as a ‘response’ to the killings of three young girls in southport. far-right mobs clashed with riot police because of claims that had spread online that the suspect, axel muganwa rudakubana, was a muslim refugee who had arrived in the uk by boat. later, however, it was revealed that the suspect was born in cardiff, wales. his parents were rwandans. his likelihood of being muslim was not certain (white, 2024). still, rioters vandalised mosques and threw bricks into homes belonging to ethnic minorities. they surrounded hotels housing refugees, making deadly threats (safdar, 2024). on the one hand, the uk government took action to stop such violent attacks. on the other hand, one should not forget that violence against refugees, migrants and ethnic minorities found its place in the conservative government’s the safety of rwanda (asylum and immigration) bill. the proposed government bill aimed to permit the government to determine that rwanda was a safe country and a destination for refugees such an addition would bypass judicial review. in this scene, authorities in the uk must make sure that intolerance does not impede the peaceful enjoyment of ethnic minorities and muslim refugees’ homes (paketova and others v. bulgaria, 2022). similarly, by the end of 1992, germany had accepted refugees from serbia, croatia, and bosnia. german society developed aggression towards these refugees. at the time, germany had more than one million guest workers, too. german society showed signs of neo-racism that describes “hatred toward perceived cultural, rather than genetically determined characteristics” (volkan, 2017, p. 15). neo-racism was in action through “bombings, beatings, murders, and discrimination in employment and housing were taking place” (volkan, 2017, 15). any form of racism infringes on cultural rights tied to the right to personal identity, as article 22 of the universal declaration on human rights calls them indispensable “for the dignity and free development of everyone’s personality” (mertens, 2020, p. 208). such incidents may also happen due to a state’s inaction, where the state should have intervened but chose not to. for example, a fire destroyed the moria camp on the greek island of lesvos in 2020. until this incident happened, international human rights organisations referred to the moria camp as a living hell. state personnel did not treat refugees in the moria camp with the dignity and respect that anyone deserves as a person. the inhumane and degrading treatment became a norm in the camp. greece did not intervene and stop the ongoing inhumane treatment towards refugees. greece’s inaction led to an infringement of refugees’ rights (gordon and kjellmo larsen, 2021). another level of protection for the right to personal identity is freedom of expression and religion, as regulated in articles 9 and 10 of the echr. these provisions https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 13 were designed to safeguard individual autonomy, identity, and integrity (marshall, 2022a, p. 11). note that there is no straightforward answer if one asks about the difference between belief and religion. similar to persecution, international law does not define religion as a term of art. un human rights committee confirms this by stating that “the terms ‘belief’ and ‘religion’ are to be broadly construed” (office of the high commissioner for human rights 1993, para 2). the drafters of the echr designed article 9 based on a distinction between a forum internum and a forum externum. consequently, article 9 requires individuals to differentiate between their internal beliefs and external manifestations. based on those beliefs, article 9 permits restrictions when necessary for a democratic society or public order. on the other hand, article 9 protects freedom of thought, conscience and religion as the foundations of a democratic society within the meaning of the convention. in its spiritual aspect, it represents a crucial component that shapes the believers’ identity and worldviews. nevertheless, it also acts as a beneficial resource for atheists, agnostics, and sceptics (council of europe, 2019). the right is about whether or not to hold a religious belief. this article explores the conflict between law and state practice concerning protecting and respecting refugees’ identity rights. it would, therefore, like to draw readers’ attention to more problematic areas where such conflicts often arise. under article 9, the issue often arises regarding religious beliefs when there are differences between the general religious beliefs of the host society and those of the refugee. we can specifically focus on muslim refugees in europe to exemplify relevant incidents regarding article 9 and the scope of personal identity within this right. the presence of muslims in europe advocating for their religious rights has sparked a nuanced and intricate dialogue in both legal and political realms. terrorist attacks have caused fear and increased islamophobia, making it difficult for muslim minorities to integrate into europe’s secular society. many refugees from muslim-majority countries come from regions where islam plays a vital role in social and national identities. the privatisation of religious practices and the decline in religious observance create challenges for refugees, as they must adapt their religious behaviours to fit an idealised secular environment that restricts public expressions of faith. tensions surface when individuals confront this norm through attire, dietary restrictions, or other significant religious commitments (cesari, 2023). in recent years, this situation has sparked discussions about religious differences in society (baldi, 2024, p. 1288). such discussions in the host state’s political agenda have also arisen because the nation-state solidifies the “triadic relationship” between citizen, nation, and territory by distinguishing the refugee, thereby clarifying and reinforcing normative concepts of belonging (zaman, n.d., p. 75). religious categorisations create a separation between refugees and the local host community, establishing an unbridgeable social distance. while refugees may be ‘invited in’, they are kept in restricted areas (zaman, n.d, p. 76). in this context, states may leverage religion, if it is part of an individual’s identity, as a means to others and categorise refugees they consider undesirable. article 9 https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 14 safeguards persons’ identity rights and guides states in a direction where governments lead a tolerant, vibrant and religiously prosperous society in which persons’ identities are of concern and respect. therefore, the applicants often invoke article 9 with article 14 of the convention, which prohibits discrimination on various grounds, including religion and opinion. i̇zzettin doğan and others v. turkey [gc] is an example of such an overlap. that said, individuals -refugeescannot be compelled to adopt behaviours that might suggest they hold—or do not hold—such beliefs (council of europe, 2019, p. 22). otherwise, this may also negatively impact people’s psychological well-being, diminishing their sense of worth. research indicates that a greater emphasis on religion in an individual’s life is linked to elevated depression levels and reduced self-esteem among stigmatised muslims and other religious minorities in belgium. the latter happens because intense religiosity intensifies the majority population’s intolerance and hostility (bender et al., 2022, p. 446). further, politicians can instrumentalise the bigotry and hatred for their election campaign by othering refugees and their religious beliefs. the latter incidents starkly contrast with what the echr article 9 advocates for – living in harmony by respecting personal differences, which makes us who we are, culturally and religiously. article 9 operates on preventing racial stereotyping and stigmatising individuals based on their names and religious beliefs. article 9 guides states to ensure that just because there is a vulnerability in refugees and the destination state offers them a haven, this does not necessarily mean that the dominant culture and religion would rule their lives. take, for example, abdi ibrahim v. norway (abdi ibrahim v. norway, 2021). in this case, the applicant, a somali refugee woman, applied to the ecthr against norway. norwegian authorities permitted a norwegian christian foster family to adopt this refugee woman’s child, disregarding the wishes of his mother as a muslim. the applicant contended that by initiating the adoption process, the child welfare services had taken a decision that infringed upon the child’s rights, as they allowed the child to be indoctrinated away from his religion, in violation of article 9 and article 2 of protocol no. 1 to the convention. moreover, norwegian authorities did not adequately inform the foster family regarding how to respect and accommodate the foster child’s religious identity and their obligation not to convert the child to their faith (para 92). the chamber found that there had been a violation of article 8 echr. the court regarded article 9 as an essential component of article 8 concerning her son’s placement in a non-muslim family. like article 9, article 10 protects another right as the essential foundation of a democratic society freedom of expression, albeit not unlimited. suppose a society highlights the identity traits of refugees in a way that incites fear, such as their religion taking over the city or they are invading the country. in that case, that may lead to hate speech and further hate crimes disrespecting refugees by justifying illegal actions based on presumed identities. the state should not protect such speech and should revoke the protections afforded by article 10 for refugees by imposing limits on the right to ensure their safety. this article, therefore, would like to address the need to safeguard refugees’ identities and prevent them from being targeted in attacks. protecting them from harassment is not only necessary but also essential for their safety and dignity. https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 15 we should consider the protection provided by article 10 concerning article 17 of the echr. article 17 prohibits abuse of rights regulated under the convention. the state should approach both hate and xenophobic speeches in the context of articles 10 and 17. the mentioned articles determine the state’s role in protecting freedom of speech and whether people misuse such freedom to attack human rights. article 10 protects the right to freedom of expression, to hold opinions and to receive and impart information. however, like the other rights that have found a place in the echr text, there is a limitation to the freedom that article 10 brings out. the state can interfere with exercising this freedom if necessary, considering the interests of national security, territorial integrity or public safety. the ecthr affirmed this in the handyside case (7 december 1976, series a, no 24, para 491). in alignment with this approach, article 17 allows state interference if there is an attack on human rights. for example, in glimmerveen and hagenbeek v. the netherlands case, the ecthr stressed that persons cannot instrumentalise article 10 for activities “aimed at the destruction of any of the rights and freedoms” as highlighted under article 17 (app no. 8348/ 78, commission 11 october 1979, p. 195). the court delivered its judgement in 1979 in glimmerveen and hagenbeek v. the netherlands case. yet, its decision is still relevant and applicable to this day – specifically when refugees’ identity rights are at stake. in this case, the applicants, as members of a dutch political party, promoted their political ideology built upon racism and xenophobia. the dutch political party held a vision that, according to them, offered a ‘world conception’. such a conception would grant “each nation a proper state, as well as the belief that an ethnically homogeneous population best serves the general interest of a state and not by racial mixing” (p. 188). the members of the dutch party distributed leaflets that possessed such disturbing and manipulative views about ‘the others’. similar incidents can also happen targeting refugees. based on the precedence of the court’s approach, this should be considered not only as an attack on refugees’ rights to demand protection from persecution but also on their right to personal identity. such organised, politically motivated activities would target a ‘certain group of refugees’ based on their race, nationality or religion – which makes them who they are. for example, in romania in 2015, a local businessman organised a protest in response to rumours about refugees who were going to arrive. during the protests, the participants distributed leaflets saying the following: “dear refugees, here is a toxic waste town, the economy is poor, no future, and no hope. choose your destination responsibly!” the organiser claimed that he wanted to draw attention to the local problems, which would make the place an undesirable destination for refugees. but he also ‘admitted’ that “he was concerned for the safety of the locals if refugees also lived in the town” (albu and romania, 2017). who were the refugees the businessman talked about? why should there even be a concern regarding the safety of the locals? by seizing the purpose of such activities, states should act with care against incidents that potentially target refugees through speech that can turn into hate crimes. the rights that frame personal identity also enable individuals to exist as living beings. the mentioned rights allow refugees to pursue a life in the host society, as is justified by the living together principle. the living together principle emerged due to https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 16 the french government’s submission in the s.a.s. v. france case (app no. 43835/11, ecthr grand chamber 1 july 2014). the ecthr grand chamber concluded that “the respondent state perceives the barrier raised against others by a veil concealing the face as breaching the right of others to live in a space of socialisation which makes living together easier” (para 122). applying this notion to refugees and their existence in the host society, respecting their identities and rights that protect them, would make living together much easier. however, the problem arises with categorisations. categorisations often fail refugees, as do society and state policies (eleanor berry and taban, 2021, p. 198). this is about the position ascribed to the refugee person in which “the individual is read through the lens of some social role or status and is accordingly presented in terms of a persona” (trotter, 2022). as a result, states’ actions or inactions can impact, obstruct or hinder refugees’ sense of identity (trotter, 2022), such as in cases of lack of recognition. the refugee, for example, may not be recognised as a person before the law or a refugee due to pre-ascribed identities. a typical example of a lack of recognition is in pushback cases, where refugees cannot submit asylum claims. as a result, their identification as refugees is blocked, resulting in their loss of rights. the following section explains and illustrates the rights mentioned, applying them to specific scenarios where refugees are affected by states’ illegal actions or inactions. 3. pushbacks and detention infringing on refugees’ identity rights once the refugee enters the control of the state in question (paz, 2022), baranowska explains that “[a]ll states engage in border enforcement practices to regulate entrance into their territory and prevent irregular crossings of their borders”, for example, employing “covert border enforcement” (baranowska, 2023). covert border enforcement often occurs through pushbacks involving secret and unacknowledged detention facilities (baranowska, 2023). state practices, such as pushbacks and indefinite detention, occur when asylum policies are influenced by the perception of whether the individual is considered a legitimate refugee within that specific region and country. this aspect raises questions about the identities of newly arrived refugees and the rising doubts about their arrival in the country (betts et al., 2024). in the m.a. and z.r. v. cyprus case, the applicants fled syria in 2016 because of the war in lebanon (m.a. and z.r. v. cyprus, 2024, para 5). in lebanon, the applicants stayed in camps run by the unhcr, and as they narrated, the living conditions were unsatisfactory. additionally, they lacked documentation, which prevented them from accessing healthcare and obtaining employment (para 6). lebanon started removing syrians in the face of societal pressure after the explosion in beirut in 2020 (para 6). the applicants each paid $ 2,500 to a smuggler to take them to cyprus (para 7). on arrival in the territorial waters of the republic of cyprus, their boat was intercepted by the cypriot coastguard (para 9). the applicants declared their intention to apply for asylum orally via an interpreter. they tried to explain that they had no place to return to in lebanon and had a family to care for (para 9). https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 17 nobody further asked them why they wanted to remain in cyprus or could not return to lebanon (para 9). later, the applicants were “tricked into thinking that they would be led ashore. instead, they were forced to board another boat … and were also being returned to lebanon” (para 10). the court considered that the cypriot authorities were aware of, or ought to have been aware of, the shortcomings and loopholes in the lebanese asylum system. “the government were also aware of the constantly deteriorating living conditions of asylum-seekers in lebanon”, which must be a clear indicator for the government that the applicants would not have access to an adequate asylum process in lebanon or that they would be exposed to treatment contrary to article 3 considering the living conditions there (para 93). yet still, “the domestic authorities did not conduct or claim to have conducted any assessment of the risk of lack of access to an effective asylum process in lebanon”. cyprus authorities did not ensure whether “the lebanese authorities fulfilled their international obligations and undertakings concerning the protection of refugees” (para 94). in short, domestic authorities in cyprus ignored the claims of asylum seekers. they looked the other way regarding their responsibilities to protect people seeking asylum – a responsibility rooted in the non-refoulement principle, which has a jus cogens character (allain, 2001). authorities in cyprus, based on their presumption of the ‘identity’ of syrian asylum seekers, categorised them as undeserving refugees, having ulterior motives and, without even considering whether they would be returned to life-threatening circumstances, pushed them back to lebanon. during the ‘identity battle’ of syrian refugees coming from lebanon -trying to prove that they were indeed refugeesthe court considered that, albeit they could not submit any substantial evidence other than their oral statements, they provided prima facie evidence, which shifted the burden of proof to the government (para 86). as established in its relevant cases, f.g. v. sweden (f.g. v. sweden, 2016) and j.k. and others v. sweden (j.k. and others v. sweden, 2016), the court placed great importance on assessing credibility and burden of proof. while submitting their asylum claim, the individual must lay out the reasons and evidence supporting that claim. although the refugee and the immigration authorities have the shared duty regarding relevant facts of the case in the asylum proceedings (ravarani, 2017), as is established primarily in n.d. and n.t. v. spain (n.d. and n.t. v. spain, 2020, para 85) and emphasised in m.h. and others v. croatia (m.h. and others v. croatia, 2022, para. 268), in the context of expulsion of migrants and refugees if the applicant equips “prima facie evidence in support of his or her version of events … the burden of proof should shift to the government” (a.a. and others v. north macedonia, 2022; n.d. and n.t. v. spain, 2020) the struggle of m.a. and z.r. in the case above illustrates their efforts to prove their genuine intentions and combat the prevailing perceptions (based on their identification) of refugees as opportunity seekers, mere numbers, and job stealers. this struggle infringes upon their right to personal identity, as they were not treated with respect and were seen as less than human, with their words dismissed as unreliable. the ecthr, in paragraph 137, states that the applicants were under the control of the authorities, and the conditions they endured caused “considerable distress and feelings of humiliation of such a degree as to amount to degrading treatment prohibited by article 3 of the convention.” the applicants were not only unrecognised as persons before the law https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 18 (rodrik, 2022), but their sense of self and need for a refuge were also ignored to such an extent that it undermined their essential requirement for safety to maintain a dignified life. note that the court does not explain the context of human dignity in its case law concerning the pushback of refugees by state authorities. in this case – m.a. and z.r. v. cyprus the court does not explain the right infringement under article 3 of the echr, nor does it link to human dignity. however, particularly in instances of torture, the court’s approach is to steer states towards recognising that individuals possess inherent value as human beings and, consequently, their dignity must be upheld by respecting their mental and physical integrity (costa, 2013) to protect their right to personal identity as a person and as a refugee. in the m.a. and z.r. v. cyprus case, the court discusses the state’s control of refugees. the concept of being under control has ties with covert enforcement procedures that result in the detention of refugees, which can infringe on their right to personal identity. in the following paragraphs, the first point about the detention of refugees will be explained. furthermore, the analysis clarifies how detention can infringe upon relevant echr rights that protect personal identity. in the saadi v. italy case, the ecthr in para 65 states that “until a state has “authorised” entry to the country, any entry is “unauthorised” (saadi v. italy, 2008). the court makes it clear in the saadi v. italy case that “as soon as an asylum-seeker has surrendered himself to the immigration authorities, [it does not mean that] he is seeking to affect an “authorised” entry”. yet this does not mean that states have a wide margin of appreciation regarding the detention of refugees. international law ties refugee detention to strict rules. relevant international law regulations see detention as an exception. the ecthr, in consideration of conclusion no. 44 of the executive committee of the united nations high commissioner for refugees programme, the unhcr’s guidelines and the committee of ministers’ recommendation, clarifies that detention of asylum seekers is possible only in restricted circumstances. for example, “identity checks are taking place or when elements on which the asylum claim is based have to be determined” (saadi v. italy, 2008, para 65). to consider whether there is arbitrariness in the applicant’s detention, we must examine whether the applicant is “genuinely conformed with the restrictions permitted by the relevant sub-paragraph of article 5 § 1” (saadi v. italy, 2008, para. 74). further, treating asylum seekers with dignity at the detention centres is equally vital (costello, 2012). for example, the ecthr found a violation of article 3 echr in its joint cases of m.a. v. greece (app no 15192/20); c.k. v. greece (app. no. 15728/20), a.g.d., d.m. v. greece (appl. no. 16094/20) and f.j. and others v. greece (appl. no. 16511/20). all applicants complained about their living conditions (which were described as shocking, disgusting, and shameful) in the greek reception and identification centres during their stay between 2019 and 2020 (baumgärtel, 2024). state authorities may subject refugees to undignified conditions in detention centres because they may identify them as deserving of such treatment and as not worthy of sharing the country’s political, economic, and moral resources (ṣóyẹmí, 2024). https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 19 for example, australian offshore detention centres (currently in nauru) have been in place for people who aimed to arrive in australia by boat – for that reason, refugees have been referred to in a derogatory way as boat people or queue jumpers. daniel ghezelbash and constantin hruschka explain that the ‘onshore’ protection system only applies to people who arrive in australia on a valid visa. for example, someone who comes to australia with a tourist or student visa may apply for asylum. the downside of this procedure is that if an applicant’s initial claim has been refused, they can seek review at the administrative appeals tribunal and in the federal circuit and family court. still, they risk waiting more than ten years to finalise their cases. delays in processing are considered encouraging factors for individuals with ulterior motives, as they can take advantage of lengthy asylum procedures, even if they do not have genuine reasons for their asylum applications. in other words, although some individuals may not have legitimate claims to lodge asylum applications, as they know they will remain in australia until their case is processed through the system, they take advantage of the lengthy asylum procedures. this note emphasises that in some cases, those without a genuine asylum claim may seek to exploit dysfunctional state systems or gaps in the law. however, the existence of such persons does not mean that those with genuine asylum and protection claims/needs should be lumped in with those who engage in system fraud. this reality -another reason for confusion around the identification of refugeesshould not allow states to consider every asylum applicant or asylum seeker from certain parts of the world a ‘fraudster’ (ghezelbash and hruschka, 2024). international refugee assistance project (irap) reports that for decades, the usa has detained refugees whom they encountered at sea in the migrant operations centre in guantánamo bay, cuba. irap reveals the journey of these refugees and how they have been detained in prison-like conditions without access to the outside world and trapped in a punitive system with little to no transparency or accountability (international refugee assistance project 2024). therefore, the state’s approach towards processing asylum claims leads to an identity battle for refugees in an era of iron borders (houtum and bueno lac, 2020) and the notion of “hostipitality” embraced by some states. derrida formulates hostipitality by combining hostility and hospitality—this policy exceptionalities refugees in space and its political significance (derrida, 2010). furthermore, regarding the detention of refugees and the violation of refugees’ right to personal identity, we will examine the case of m.h. and s.b. v. hungary (m.h. and s.b. v. hungary, 2024). mr m.h., an afghan national, lodged an application against hungary along with a pakistani national, mr s.b. the case concerns the asylum detention of the mentioned applicants. even though the applicants were minors during the events, their requests for release from detention were initially refused (m.h. and s.b. v. hungary, 2024, para 1). international law requires states not to detain unaccompanied refugee minors. yet the applicants initially “provided the authorities with information indicating that they were adults”, leading to their detention. only a few days later, they claimed to be minors. for that reason, domestic authorities were concerned about the reliability of the applicant’s statements, but they did not take appropriate steps to evaluate such a claim. the court, therefore, states that the applicants’ inconsistent initial and further statements regarding their age “could not justify dismissing those claims without taking appropriate measures to verify the applicant’s age”. in that, as the court stresses, the https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 20 extreme vulnerability of a child motivates them “not to reveal his or her real age, such as not being sure of it or a fear of being separated from a group or an adult relative”. as the court states, the country must run its assessment procedure for truth-seeking in case of doubt over the applicant’s statement. rather than ‘assuming’ one’s identity, including one’s age, the state must ensure that refugees’ statements are taken seriously by considering that they are already probably double victimised due to not only persecution but also ongoing doubts about their intentions on leaving their home state and entering a new country. the court, in paragraph 71, highlights that states must cease or eradicate the immigration detention of children (see, for example, “g.b. and others v. turkey, no. 4633/15, §§ 67-79 and 151, 17 october 2019, and m.h. and others v. croatia, cited above, § 236”). the state must give primary importance to the best interests of the child, along with the principle of presumption of minority for unaccompanied children reaching europe. according to the detention guidelines, paragraph 51, states must refrain from detaining children (unhcr, 2017). article 3 of the convention on the rights of the child also emphasises the child’s best interests. unaccompanied or separated children should not be detained just because they have no one who would care for them (convention on the rights of the child, 1989). in the case of m.h. and s.b. v. hungary, the state in question did not consider the best interest of the children principle. state personnel did not put enough effort into dispelling existing doubts about applicants’ ages. state authorities acted upon possible assumptions, categorising them as persons who can readily take advantage of principles protecting the most vulnerable. such treatment blocks refugees from proving their identity. if there is a second guess about refugees’ intentions, to what extent can social cohesion be possible in a scenario in which a refugee has overcome the hurdles of border controls and the potential challenges of detention? the following part resolves the given enquiry posed here. 4. social cohesion vis-à-vis the right to personal identity the rights of refugees include the right to look. the right to look is about people forming relationships by looking into each other’s eyes to express friendship, solidarity, or love (mirzoeff, 2011). the right to look coexists with “the right to existence” (mirzoeff, 2011, p. 477) and belonging (mertens, 2020). the rights mentioned above find meaning in article 8 of the echr. article 8 allows individuals to “establish and maintain relations with other human beings for the fulfilment of one’s personality” and identity (x and y v. belgium, para 112). states should not “unfairly discriminate as to who is entitled to rights to adopt” (marshall, 2022a). states should promote harmony and tolerance for people to maintain relations and help them flourish, which is affirmed by the ecthr in the üner v. the netherlands case: “article 8 protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity” (üner v. the netherlands, 2006). https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 21 social cohesion can only occur if refugees cultivate relationships with others. viewing refugees as dangerous others and the tendency to categorise them based on specific labels rooted in psychological borders obstruct their cohesion with society. the psychological borders prevent refugees from forming cohesive groups, thus hindering their ability to establish relationships with others. vamık volkan explains psychological borders with links to stranger anxiety. such anxiety in psychoanalysis defines “infants’ recognition that not all the faces around them belong to their caregivers” (volkan, 2017, p. 111). humans classify mobile subjects by considering “which is ‘safe, harmless, trustworthy’ and which is ‘bad, dangerous and hostile’”, resulting in collective definitions (ahmed, 2000, p. 33). collective definitions eventually provide the subject of “psychological borders” (volkan, 2017, p. 111) and “the ability to move safely in a world of strangers and dangers” (ahmed, 2000, p. 33). the problem with psychological borders is that when refugees are deemed outsiders in the national space, society sees them as unpredictable ones beyond control thus, the source of fear (ahmed, 2000, 36). however, this perception can result in rights violations for refugees. they can be discriminated against easily, and their right to personal identity can be ignored. for example, refugees may be perceived as belonging to one type of dangerous strangers category, including adrenaline addicts, psychopaths, sex offenders or criminals in general (bonsignore, 2023, p. 26). if a person commits one of these public offences and simultaneously is a refugee, the conclusion is that a refugee has committed a crime to the detriment of society. however, this does not mean that all refugees will eventually commit crimes detrimental to society. for example, there has been a wave of anti-syrian movements in türkiye. at the beginning of july 2024, turkish authorities arrested a syrian man based on an allegation that he sexually abused a seven-year-old syrian girl in the city of kayseri. this allegation triggered a public response, and riots erupted in the city centre against syrian refugees, escalating to a violent manner (al jazeera and news agencies, 2024). indeed, any form of sexual abuse is horrific. understandably, there was a reaction towards the abusive incident. yet, the reaction should not reach a level where refugees are targeted for humiliation. for one person’s deviant act, there should not be a generalisation resulting in one group of individuals being “teased, bullied, scorned, excluded, laughed at, put down, ridiculed, harassed, embarrassed, cruelly criticised, treated as invisible, discounted as a person, made to feel small or insignificant” (fangen, 2010). when refugees are reflected as criminals, it adds another dimension to the refugees’ identities: the ones who shall be afraid of and excluded from all social settings, including recruitment and social life. the concept of criminal dangerousness influences the language of naming and labelling, leading to dangerisation and endangerment. such categorisations may lead to racial profiling, infringing on the protection that article 8 provides. for example, in the case of wa baile v. switzerland, the ecthr considered the applicant’s claim regarding racial profiling during an identity check at the zurich railway station. the applicant was not a refugee but a swiss national. yet he was subjected to an identity check and search. he refused to submit to an identity check—a fine was imposed on him. the applicant claimed that state officials put him through this treatment because of his skin colour. the court found a procedural violation of article 14, https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 22 which prohibits discrimination in conjunction with article 8 of the convention (wa baile v. switzerland, 2024). the court found that discriminatory grounds might have played a part in the identity check the applicant was subjected to. however, the fact is that “people do notice race when perceiving others” (apfelbaum et al., 2012, p. 205), and so do the state officials. isabel wilkerson’s analysis of the caste system prevailing in the usa, india and existed during nazi germany explains that we are all in a box (wilkerson, 2020). the label on the box signals to the world what is supposed to be in it and what should be done with it. the label indicates which shelf your box should belong on. in a caste system, the label often misaligns with the content; it is incorrectly placed on the wrong shelf, which harms individuals and organisations in various ways, many of which we cannot fully understand. similarly, refugees possess identities—they are born with some of them and develop others through social interactions and life experiences: self-identity overlapping with ascribed identities. the problem arises when labelled in ways that do not correspond with the actual content. this misalignment constitutes misidentification and ‘hurts’ refugees as they lose rights that they have innately carried from the beginning because of their ‘labelled identities’. this article’s previous part looked closer at the incidents in which state officials pushed refugees back or put them in detention centres because recognition of refugees’ rights and the social cohesion process can only begin if states give them a chance to submit their claims. for example, in the a.i. and others v. poland case, the court indicated that the applicants’ “statements concerning their wish to apply for international protection were disregarded” (para 54). the applicants attempted to cross a border legally, using an official checkpoint and subjecting themselves to border checks as required by the relevant law (para 55). the court referred to the independent reports stating that “the applicants’ case constituted an exemplification of a wider state policy of refusing entry to foreigners coming from belarus, regardless of whether they expressed a fear of persecution in their countries of origin” (a.i. v. poland, 2022, para 56). indeed, poland’s treatment of refugees from middle eastern countries—making them wait at its border with belarus in freezing temperatures—stands in stark contrast to its favourable treatment of ukrainian refugees, who are also described as genuine ones (majetschak and riemer, 2021). ukrainians have faced no issues regarding their acceptance into eu countries, including poland. for example, ukrainians’ entrance documents were not scrutinised, and they were welcomed into private homes (samson, 2024). refugees should not become subjects of rights if they “present themselves as ‘eligible’ or sufficiently vulnerable” (cabot, 2018, p. 6). who is the vulnerable refugee? how are they identified? what personal traits do they possess that put them in a box labelled/identified/categorised as vulnerable? for example, abdoulaye camara, a national of guinea, arrived in belgium in 2022 and applied for asylum (camara v. belgium 2023, para 5). later, the applicant went to the federal agency for the reception of asylum-seekers (fedasil) to be allocated a place to stay. however, he was informed that he could not be accommodated because the asylum network was complete (para 8). the applicant brought his claims before the brussels french-language labour court. he submits to the brussels french-language https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 23 labour court that there is an imminent danger of severe and irreversible damage to his human dignity because he has nowhere to stay. the labour court orders fedasil to provide the applicant with accommodation on condition that a fine of €1,000 per night would be payable in default (para 13). however, for 112 days until he gets an accommodation, he sleeps on the streets, in stations or parks (para 21). the applicant claims that during the time of being homeless, he endured dampness and cold in brussels in october, as the weather was rainy. the temperature was very low (para 24). the ecthr observes that the network’s hosting capacity proved insufficient to cope with the increase in the number of applicants for international protection (para114). the court detected a significant increase in the number of applications for international protection in belgium in 2022 (para 115). belgian authorities allocated accommodation to the most vulnerable individuals -families with children, unaccompanied minors and persons suffering from specific health conditionsby prioritising them. indeed, the court considers vulnerability a criterion while assessing the applicant’s claims. for example, whether the applicant is “a minor, a single parent, a family with children, elderly, stateless, lgbti, an asylum seeker or a refugee, a person with a past trauma, or a person suffering from a medical condition” (i̇neli-ciger, 2021). on the other hand, in the camara v. belgium case, the state authorities’ decision delayed accommodating applicants with the same profile as the applicant for international protection. nevertheless, as the ecthr points out, article 6 of the convention and the preamble to the convention require states to ensure legal certainty. in the time the belgian authorities took to enforce a court order, they exceeded the reasonable limits of protecting human dignity. the court “attaches considerable importance to the applicant’s status as an asylum-seeker” and considers the applicant “a member of a particularly underprivileged and vulnerable population group in need of special protection” (m.s.s. v. belgium and greece 2011, para 251). indeed, categorisation benefits the most vulnerable ones. still, states, while categorising the vulnerabilities of refugees, should bear in mind that treating people with dignity begins with certainty and being able to maintain any process under conditions that they are treated as humans. categorisation also happens in another dimension. for example, in the usa, people have been confused about how to perceive refugees: whether as a political category – coming from communism or right-wing governments; as a religious category -buddhists, muslims, animists-; as a cultural category -non-english speakers or nonliterate; as an economic category; and as a racial category (haines, 2010). the usa is a “synthetic country”. people, including refugees, have come from different places, creating “a synthesis of disparate influences” (volkan, 2017, 16). categorisations, therefore, may exist, but they should not exist to determine the deservingness of the refugees. being a refugee may be a category among the persons who have migrated to the host state. yet still, refugees may not even want to identify themselves as one because of the way a refugee would be stigmatised. molly fee observes that in some societies, https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 24 people interpret the term “refugee” as referring to individuals who are inferior to them. society may associate refugee status with “dependency, food scarcity, confinement, and restriction” (fee, 2024). the negative approach towards the status of being a refugee is also fed by the ‘helpers’, as although they focus on the “vulnerabilities of refugees and the importance of helping”, they may still portray refugees as objects requiring help, “not as subjects with agency and voice” (navarro vigil and baillie abidi, 2018, p. 55). refugees may get confused about when and if they should embrace being a refugee and when and if they should sever the ties with refugee status, e.g., after being employed or resettled to a third country. one study revealed that people, on a psychological level, become refugees over time rather than feeling like refugees immediately after their flight. in other words, their understanding of their identity and relationship to this label does not match immediately but becomes aligned in time (fee, 2024). the alignment can occur if refugees are integrated into the society in which they reside. if refugees participate in the community’s cultural life, as endorsed in article 27 of the universal declaration of human rights, their cohesion with society can happen. social cohesion is a prerequisite for recognising a person’s right to personal identity. still, societies need guidance on fostering compassion and integrating refugees. berna turam conducted fieldwork in athens, greece. greece has been facing a growing influx of refugees. turam points out that alexa, a project manager in an ngo dealing with refugee issues, draws attention to the growth of ethnically focused immigrant neighbourhoods in athens. as alexa concludes, diverse migrant neighbourhoods have become safer in athens (turam, 2021, p. 756). she continues to explain that athens owed its success to the close engagement and cooperation between the municipality’s leadership and the city’s progressive activist tradition (turam, 2021, p. 757). turam’s analysis can be observed in the ecthr hoti v. croatia case facts. the case establishes that the applicant’s uncertainty about his residence status in croatia had an adverse impact on his private life. he depended on the authorities to prolong his residence permit, his employment prospects were troubled without a stable legal status, and he had difficulties securing typical health insurance and pension rights (hoti v. croatia, 2018, para 126). these aspects are particularly relevant to refugees’ integration and the need for certainty. municipalities can help refugees integrate into society by implementing the residence act, granting social benefits, providing education, health care services and accommodation, organising integration and language courses, and supporting labour market integration (hunger and kersting, 2019, p. 417). the means listed here would eventually eliminate the fear that produces false narratives and close the gap between society and the refugees. for example, “all arabs are ‘uncivilised’ peoples who ‘live in these tents in the desert’” (abaza, 2024, p. 6). the given example demonstrates the false narratives and how they would create a distance between society and refugees. societies should recognise that refugees must integrate into daily life, which requires them to bond with the people, the language, the culture, and the customs (miller, 2018). such a bond can happen once society respects refugees’ identity and who they are as persons and as refugees. https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 25 5. how can the ecthr mitigate the tensions arising from the misalignment between law and practice that violates refugees’ identity rights? relevant regulations on the international law level regarding refugees’ rights exist. still, states may adopt such rules but reverse and integrate them into their domestic law system in ways that would serve their interests. this section addresses two questions: first, why is there such a misalignment between international law and state practice, and second, how can the ecthr help mitigate the tensions resulting from this misalignment? we can answer the first question by examining daniel-thabani ncube’s analysis. he states that the question should be whether we expect too much from regulations protecting rights and freedoms on international and domestic levels. or are instruments regulating relevant rights inherently flawed? “put differently: is the law the problem, or are we – i.e., society – the problem?” (ncube, 2024). the misalignment between law and practice that results in rights violations for refugees can be discussed based on the fear-based policies. as was explained with links to social cohesion and the obstacles that refugees face, the phenomenon of stranger danger and fear towards the stranger widens the gaps between society and refugees. not only socially but also legally, the same phenomena play a significant role in shaping policies and legal regulations. as a result, the law and the states’ policies become a problem for the vulnerable if they are built upon motives that result in rights violations. some scholars, such as andrea bianchi and anne saab, examined the dynamic between law and fear. in their piece, “fear and international law-making”, (bianchi and saab, 2019) the authors discussed how individual and collective fear may affect decision-making processes and shape security policies in the national and international spheres (bianchi and saab, 2019, p. 351). they deliver analyses ranging from terrorism and climate change to refugeerelated concerns. by giving examples of globally troubling issues, the authors also reflect on the policy response stemming from the emotion of fear. rational choice theory, the authors state, assumes that “decisions are taken, and law is made by way of rational determination”(bianchi and saab, 2019, p. 35). on the political level, people often overlook fear, which is primarily a political factor (turam, 2021, p. 759). on the legal level, for example, most normative instruments used to counter terrorism were adopted when fear was the prevailing emotional state; similarly, many international instruments on climate change have been developed against a narrative of fear (bianchi and saab, 2019, p. 351). regarding the second limb of the question initially posed in this part of the article, the echr serves as a guide for states, and the ecthr acts as an impartial arbiter. the court’s strength lies in its support for individuals, allowing them to claim their rights when state authorities violate the echr. states must comply with the ecthr’s judgments; article 46 of the echr stipulates this obligation. the verbatim of article 46 is quite clear. it explicitly states in para 1 that the “high contracting parties undertake to abide by the final judgment of the court in any case to which they are parties”. domestic law must align with the law emerging from the case law established by article 1 of the echr. the https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 26 rights and freedoms enshrined in domestic law must be compatible with those outlined in the convention; this is the state’s duty. indeed, the role of the ecthr is subsidiary; the state’s enforcement role is primary. in a scenario in which refugees’ rights are ignored, including the right to personal identity, if the court delivers a judgment that guides the contracting state in the direction to repair the loss of right, then the state must abide by the ruling of the ecthr. according to the ecthr, it acts as a constitutional document of european public order, positioning itself as a constitution for europe (loizidou v. turkey, 1996). the state’s discretionary power becomes irrelevant and vanishes if a consensus exists. for instance, in the case of demir and baykara v turkey, the ecthr asserts explicitly that its decisions are binding upon the state (demir and baykara v. turkey, 2008). it is the state’s responsibility to abide by the decisions of the court. the scope of responsibility within the context of the echr is stressed by article 1 of the convention: “the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of the convention.” in the meantime, protocol no. 15 to the convention inserted the principle of subsidiarity into the preamble to the convention. this principle “imposes a shared responsibility between the states parties and the court” (council of europe/european court of human rights, 2024c). the fourth instance doctrine comprises the principle of subsidiarity, which requires the contracting states to enforce the rights and freedoms protected under the echr. the fourth instance doctrine and the subsidiarity principle situate the contracting states as the leading actors under the convention. therefore, the fourth instance doctrine positions the ecthr in a place where the court does not assess the errors of the decisions delivered by a national court. however, the court must be satisfied with whether objective bases support the evaluation of the national authorities. the court must also understand whether any further infringement of the rights and freedoms protected by the convention occurred due to the judgment of the national court. the lack of ex-nunc assessment of the national court may lead to such consequences that if the national court had foreseen the outcomes of its decisions, breaches of rights and freedoms protected under the convention would not have occurred later. as is confirmed in the case of grzęda v. poland, “contracting parties have the primary responsibility of securing the rights and freedoms defined in the convention and the protocols” (grzęda v. poland, 2022, para 324). the state’s responsibility to protect refugees should be adequate, and the state must conduct an effective investigation if there has been a rights infringement (safi and others v. greece, 2022). the ecthr can guide states in conflict regarding the burden of proof and the protection of refugees. but in the meantime, the burden of proof -the claim that the state has not investigated the incidentas discussed in the n.d. and n.t. v. spain case might become a challenge for refugees with limited means to prove their claims. for example, a syrian refugee drowned during a border control operation at a river on the hungarian-serbian border. the applicant claimed that force was used against them to prevent their arrival in hungary. the ecthr concluded that such allegations could be accepted if they were proven beyond a reasonable doubt through a practical investigation (alhowais v. hungary, 2023, paras 119-123). in the meantime, states must conduct https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 27 adequate investigations, such as those related to border deaths. in the xhavara and others v italy and albania case, the ecthr states that article 2 (right to life) imposes on states the obligation to conduct “official, effective, independent and public” investigations (xhavara and fifteen others v. italy and albania, 2001). the court can help ease the tension between the state and refugees by clarifying states’ legal obligations under the echr. fundamental rights for refugee protection include the non-refoulement principle, the prohibition of collective expulsion, and the ban on punishment for illegal entry. protection from torture and inhumane and degrading treatment provides the ultimate safeguard for refugees. further, refugees can only be integrated into society if they are respected and not discriminated against by giving them space to express themselves and manifest their thoughts and conscience. all the layers mentioned in this paragraph for refugees’ protection also form the foundation and frame for refugees’ right to personal identity. the recognition of refugees’ right to personal identity recognises them as agents with a voice and rights. the more the court shapes its case law based on the fundamentals mentioned earlier, the more uniform and consistent the states’ approach can be towards protecting refugees’ right to personal identity. 6. conclusion searching for a place to hide from persecution and violence is a human impulse. yet, some states either question refugees about their intentions or categorise them under presumed identities. the article presented the state’s actions as illicit practices, including pushbacks, summary returns, illegal detention, and policies deriving from fear of outsiders, which hinder social cohesion. as the article established, personal identity defines an individual, and the rights underpinning personal identity empower human beings. these fundamental rights safeguard and shape the expression of personal identity. states’ abusive treatment of refugees or their refusal to treat them with dignity is a direct assault on refugees’ identity. the analysis highlighted the importance of identity rights by mentioning several european human rights law regulations. article 8 of the echr safeguards individuals from arbitrary interference by public authorities. along with article 3, article 8 helps individuals maintain a dignified living. echr article 3 protects people as entities in a civilised society. indeed, expectations and living conditions for a decent human life shape the reach of identity rights (miller, 2018, p. 31). accessing sufficient clothing may mean wearing a fur coat in one part of the world and a cotton shirt in another (miller, 2018, p. 31). therefore, this article inquired about the fundamental needs of refugees for a dignified existence. such needs vary from physical requirements to social participation, recognition, and acceptance. despite existing rhetoric based on the stranger danger approach, we should embrace any negative emotions/perceptions by singling them out from prejudice that causes humiliation and terror. indeed, for example, “[f]ear has come to be seen as the most primal, the most fundamental of human emotions” (smith, 2016, p. 106), which either https://doi.org/10.17561/tahrj.v25.9360 examining refugees’ personal identity rights in light of echr articles 3 and 8 and relevant ecthr decisions the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 28 saves from mortal danger or can kill (smith, 2016, p. 107). yet, it is crucial to navigate our fear. we must be aware that in many cases, such concerns towards certain strangers are fuelled by state policies, resulting in rights violations of the identified strangers. against this backdrop, this article mapped relevant ecthr case law to understand the concrete results of othering mentality shaping presumed identity for/about the refugee. as the facts of the given cases in the article show, how refugees are either left with no clothes and shelter or pushed back to the place where they have escaped from persecution are the results of the perception or already assumed identities of refugees. state officials identify them through the glasses made by state policies without considering the refugee’s story as a person. as has been exemplified, suppose the refugee’s route begins in a place that resides in the middle east, africa, or south america. in that case, they are either opportunity seekers or terrorists coming from muslim communities or such places; they are male, poor, and young but not human. therefore, they quickly become the subject of violence and are not protected because they are identified as the ones not deserving of protection. indeed, we use words and identify individuals based on our worldview: “when i use a word, it means just what i choose it to mean – neither more nor less” (carroll, 1994, p. 124). yet, if the concern is protecting human life, we must do our best to see the one beyond beliefs and dressed-up identities, solely the mind and soul (aşkın, 2007). i would like to conclude the article on a personal note. on a humid summer afternoon, i saw a young man, almost 20 years old, on the street a couple of years ago. he was standing in the back of his truck. at a distance, i could only see his upper body as the car was surrounded by people rumouring with each other and interacting with the young guy. i approached the crowd; it turned out that the guy was a refugee, barely spoke the local language and was out and about to sell some culinary items. however, as i started listening to the conversations, i figured the guy needed to be made aware of the local currency. the people surrounding him were there to exploit his vulnerability – the vulnerability of not knowing the language and the customs. they were about to convince him to sell the items at a much lower price, but someone outside of the group finally interrupted them and gave a brief lecture on not taking advantage of the one in need. i could observe some level of remorse that passed through the crowd; they did not insist on pursuing their trick, aiming to reach a better bargain. eventually, not the stigma but the human compassion overtook the atmosphere. yet, this incident had me thinking more about the driving factors that made the crowd believe they could take advantage of him. first, i thought of human nature, as flannery o’connor summarised in a good man is hard to find. on the other hand, i realised later that i needed a more complicated explanation for this incident other than scratching human nature off as bad. the analysis must contain multiple layers of touching social inequalities, structural violence, and invisible walls between ‘us’ and ‘them’. these walls determine who is desirable, wanted, and accepted. they teach us who we are and who can be part of our group. such identity separation justifies any wrongdoing against the other. we must be sufficiently aware to resist the push that directs us down a path where we long to become part of the group, regardless of the consequences for the ‘other’ identified as one. notably, social acceptance, which https://doi.org/10.17561/tahrj.v25.9360 ekin deniz uzun the age of human rights journal, 25 (december 2025), e9360 issn: 2340-9592 doi: 10.17561/tahrj.v25.9360 29 is linked to 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social cohesion vis-à-vis the right to personal identity 5. how can the ecthr mitigate the tensions arising from the misalignment between law and practice 6. conclusion references european court of human rights